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Neale v Workers' Compensation Regulator[2023] QIRC 9

Neale v Workers' Compensation Regulator[2023] QIRC 9

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Neale v Workers' Compensation Regulator [2023] QIRC 009

PARTIES:

Neale, Ian

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/123

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

16 January 2023

HEARING DATES:

10 May 2022 to 13 May 2022

5 July 2022 to 7 July 2022

11 July 2022 to 14 July 2022

MEMBER:

Pidgeon IC

HEARD AT:

Townsville

DATES OF WRITTEN

SUBMISSIONS

Respondent's closing submissions filed 24 August 2022

Appellant's closing submissions filed 27 September 2022

Respondent's reply submissions filed 25 October 2022

ORDERS:

  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent dated 7 October 2020 is confirmed.
  1. 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 – appeal against review decision of the Respondent – Appellant made an application for workers' compensation for a psychiatric or psychological injury – decision by WorkCover Queensland to reject application – WorkCover Queensland decision confirmed by Respondent on review – Appellant appealed against review decision of the Respondent to the Queensland Industrial Relations Commission – where it is agreed that the Appellant was a worker – where it is agreed that the Appellant suffered a personal injury  – whether Appellant's injury is excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – where the Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment – review decision of Respondent confirmed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 ss 11, 32, 35, 558

CASES:

Blackwood v Adams [2015] ICQ 1

Blackwood v Mahaffey (2016) 259 IR 137

Bowers v Q-COMP [2002] QIC 8

McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 13

Prizeman v Q-COMP [2005] QIC 53

Qantas Airways Limited v Q-COMP [2006] QIRComm 27

Roberts v Workers' Compensation Regulator [2016] QIRC 30

State of Queensland (Department of Agriculture and Fisheries v Workers' Compensation Regulator [2020] QIRC 97

WorkCover Queensland v Kehl [2002] QIC 23

Yousif v Workers' Compensation Regulator [2017] ICQ 4

APPEARANCES:

Mr I. Neale, the Appellant in person.

Mr S.A. McLeod KC directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

  1. [1]
    Mr Ian Neale (the Appellant) appeals the decision of the Workers' Compensation Regulator (the Regulator) dated 22 June 2021, which confirms the decision of WorkCover Queensland (WorkCover) on 7 October 2020 to reject his application for compensation for a personal injury in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act).
  1. [2]
    At the time relevant to the appeal, Mr Neale was employed by Queensland Fire and Emergency Services (QFES) as an Occupational Capability Officer in the Emergency Management, Volunteerism and Community Resilience Division.

Scope of this appeal

  1. [3]
    It is accepted that the Appellant was a 'worker' within the meaning of section 11 of the Act.[1]
  1. [4]
    Mr Neale called Dr Martin Gonzalez, his General Practitioner (GP). Exhibit 89 is the report of Dr Gonzalez in which he records that Mr Neale's injury was an adjustment disorder with an exacerbation anxiety/depressive disorder.[2]  Dr Gonzalez stated that Mr Neale's injury was caused by 'issues with management/Direct Supervisors' and said that employment was a significant contributing factor to the injury.
  1. [5]
    I note that Mr Shayne Pattie, Mr Neale's treating psychologist also gave evidence at the hearing and said that Mr Neale had discussed 'workplace bullying and the impacts it had on [his] functioning'.[3]
  1. [6]
    The Respondent admits that Mr Neale sustained an 'injury' within s 32(1) of the WCR Act.
  1. [7]
    Mr Neale's case is that the factors or stressors which caused his injury relate to a series of events or interactions he had with his direct managers including allocation of work duties, investigation of a complaint he made, interactions at meetings, feedback on his work performance, and a range of other matters.  Effectively, the nature of the stressors claimed by Mr Neale mean that in determining the appeal, it is necessary to consider whether his injury arose out of, or in the course of, management action.
  1. [8]
    The Respondent contends that s 32(5) applies and operates to remove Mr Neale's condition from the statutory definition of injury within s 32(1) where reasonable management action is taken in a reasonable way.
  1. [9]
    Mr Neale's case before the Commission is set out in his Statement of Facts and Contentions filed on 5 November 2021.[4]  At various times throughout the hearing, Mr Neale's evidence, and alleged stressors or complaints went outside the scope of his Statement of Facts and Contentions. The Respondent did not object to this but notes that the appeal is to be determined on the oral evidence and exhibits which formed part of the hearing and not what might be set out in the Statement of Facts and Contentions.[5]
  1. [10]
    The Respondent submits that it is not for the Commission or the Respondent to make Mr Neale's case for him or to fill in significant gaps in the evidence or submissions.[6]
  1. [11]
    The hearing took place over several days requiring the Commission to hold three sittings in Townsville over a period of three months.
  1. [12]
    Section 32(5)(a) operates to exclude a psychiatric or psychological disorder where it arises out of reasonable management action taken in a reasonable way. Therefore, the questions to be answered in this appeal are:
  1. 1.
    Are the management actions as set out by Mr Neale reasonable?
  2. 2.
    Were the management actions taken in a reasonable way?
  3. 3.
    If unreasonable, did the management action give rise to Mr Neale's disorder?

Legislation

  1. [13]
    The relevant part of the legislation is set out below:

32Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following—
  1. (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;
  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;
  1. (ii)
    a disease;
  1. (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. (c)
    loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. (d)
    death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. (e)
    death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. (f)
    death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  2. (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. [14]
    For the Appellant:
  • Mr Ian Neale, the Appellant;
  • Mr Terrance Scully, Senior Field Officer, State Emergency Service (SES);
  • Mr Phillip Macintosh, Station Officer, QFES;
  • Ms Lynette Roveglia, Auxiliary Captain of Forrest Beach and Auxiliary Training Coordinator for Northern Region, QFES;
  • Mr Michael Thomson, Inspector, Bushfire Mitigation, Rural Fire Service, QFES;
  • Mr Wayne McLennen, Firefighter, Fire and Rescue Service, QFES;
  • Ms Kristi Sutcliffe, Operational Capability Officer, QFES;
  • Ms Jessica Eadie, Bushfire Safety Officer, QFES;
  • Dr Martin Gonzales, General Practitioner;
  • Mr Shayne Pattie, Psychologist;
  • Mr Stephen Barber, former Northern Region Assistant Commissioner, QFES;
  • Mr Douglas Allom, Fire Officer, QFES;
  • Mr Paul Cannon, Regional Communication Officer, QFES;
  • Mr Mark McKenzie, Senior Officer, QFES; and
  • Ms Michelle Stallan, Senior Advisor, Workplace Standards, QFES.
  1. [15]
    For the Respondent:
  • Mr David Swan, Training Manager, Senior Operational Capability Officer, SES and QFES;
  • Mr Daryl Camp, Regional Manager, State Emergency Service, Northern Region, QFES; and
  • Mr John Forde, Acting Regional Manager, State Emergency Service, Northern Region, QFES.

The evidence before the Commission

  1. [16]
    Mr Neale's Statement of Facts and Contentions contains a cover page where he sets out a 'Schedule of events' which appear to be the 'stressors' he relies upon in his appeal. This schedule contains the following 'events':
  • 'WH&S Investigation';
  • 'Assignment of work';
  • 'Poor time management';
  • 'Hernia injury';
  • 'Meeting of 29th July';
  • 'Meeting of 6th August';
  • 'False accusations regarding promotion of my registered business';
  • 'Timesheet';
  • 'Removal from Regional courses'; and
  • 'Bullying Harassment'.
  1. [17]
    Mr Neale gave evidence over the course of 5 days. Mr Neale prepared his evidence by way of a number of folders of material he sought to tender as exhibits and he spoke to each 'event' listed above in turn.  In a number of cases, there was overlap between the 'events'.
  1. [18]
    The Respondent has grouped its submissions under the headings used by Mr Neale in his schedule.  I have been greatly assisted by the Respondent's comprehensive summary of evidence regarding each aspect of Mr Neale's appeal.  Mr Neale's reply submissions address the matters in the order they appear in the Respondent's submissions and, at times, appear to reproduce or adopt paragraphs from the Respondent's submissions.  To that extent, where I have set out the evidence under the headings below, it largely draws from the approach taken in the submissions of the Respondent and focuses on the evidence the Appellant and Respondent have drawn my attention to in their submissions.  I confirm, however, that I have reviewed the full transcript and all evidence and at times, where appropriate, I include aspects of the evidence not cited in the parties' submissions.
  1. [19]
    I do not intend to set out the evidence of each witness who attended the Commission.  Instead, I approach the appeal by considering each of the named stressors put forward by Mr Neale and in doing so, determine if the action contended by Mr Neale actually occurred, and if it did indeed occur, consider whether it was reasonable management action taken in a reasonable way and therefore whether Mr Neale's injury is excluded by way of s 32(5)(a).

Mr Neale's complaint against John Forde

  1. [20]
    For context, in early February 2019, the evidence demonstrates that QFES was moving from a 'response phase' to a 'recovery phase' following the Townsville flood event.
  1. [21]
    Essentially, the first stressor involves Mr Neale being unhappy with events which occurred on 8 February 2019 during the flood event.  Mr Neale made a complaint against Mr Forde, whom he believed had put personnel at risk.  Mr Neale was unhappy with the way his complaint was handled.
  1. [22]
    Mr Neale recalled that on 8 February 2019, Mr Forde tasked him to 'go down to Kokoda Street as part of a QFES strike team'.  Mr Neale's recollection was that Mr Forde told him that the team was to clean out and wash out a house, it was a media event and that the Premier of Queensland may be present.[7] 
  1. [23]
    It was put to Mr Neale that Mr Forde had not tasked him with cleaning flood affected houses.  Mr Neale disagreed.[8]  Under cross-examination, Mr Neale said that he objected to going to Kokoda Street because he had another priority which was to feed a team undertaking work at a different location.[9] Mr Neale said that he expressed his concerns to Mr Forde.[10]
  1. [24]
    Mr Neale says that when he arrived at Kokoda Street, no one was there but when he telephoned Mr Forde, he was informed that others would arrive soon.[11] Mr Neale recalled that Ms Jess Eadie subsequently arrived with four other team members and told Mr Neale that they were there to undertake clean outs and wash outs of houses but that she did not know much about it.[12] Mr Neale said that he was the only SES member who remained on Kokoda Street and worked until around 5.30pm undertaking house clean outs and wash hose outs.[13]
  1. [25]
    Mr Neale said that he received a briefing when he arrived on site.  Mr Neale recalled that he and Mr Phil McIntosh provided briefings covering safety aspects and that 'we decided we'd go and house knock, see who's home, see who needs assistance'.[14] Mr Neale recalled that two of the people present indicated to him that they were unable to undertake the work due to fatigue.[15]  Mr Neale said that he called the Emergency Operation Centre (EOC) or the Incident Control Centre (ICC) and asked for another team to assist him to give an SES presence but that no team 'turned up'.[16]  Mr Scully, one of the team members who was unable to work due to fatigue, gave evidence that he initially understood he was needed at Kokoda Street as part of an SES presence for the media and the Premier, but that a woman gave a briefing and that task changed from being a media shoot to cleaning out houses.[17]
  1. [26]
    Mr Neale says that the SES team was not fully briefed prior to being sent out in the field regarding what personal protective equipment (PPE) and equipment was required or what hazards may be encountered on site.[18] Mr Neale says that he provided the team with gloves and clear glasses in the field.[19]
  1. [27]
    Ms Eadie was called as a witness.  She recalled that she was requested by the ICC to go to Reid Park and that at the incident control room, it was decided that she would be the taskforce leader for Kokoda Street on that day. Ms Eadie recalled that she was tasked with doing wash outs and mop ups and that she was informed that media would be present to take photographs.[20]
  1. [28]
    Ms Eadie's evidence was that she was given a briefing in the command centre before going to Kokoda Street and that a second briefing was then held at Kokoda Street.  Ms Eadie recalled that she, Mr Neale and Mr McIntosh provided briefings to the teams.[21] Ms Eadie did not recall if Mr Neale had raised any concerns about the task being undertaken and said that she believed that by being on site for the briefing and then going on to commence completing the tasks, those present were agreeable to the task.  Ms Eadie said that they 'didn't have what we needed to do it, which was brought up multiple times through phone calls, requesting equipment'.[22]
  1. [29]
    Mr McIntosh was also present at Kokoda Street.  He recalled that the taskforce had been told to go to Kokoda Street and undertake clean outs and hose outs and that there would be media present.[23]  Mr McIntosh said that a briefing was given by Ms Eadie and that Mr McIntosh had provided a safety briefing.[24]  Mr McIntosh said that he recalled Mr Neale spoke during the briefing but had no recollection of what Mr Neale spoke about.[25]
  1. [30]
    Mr Neale was unhappy with the events that occurred on Kokoda Street on that day.  As I understand it, Mr Neale felt that there was confusion about what would occur that day, some SES team members should not have been deployed to undertake clean outs and wash outs due to fatigue, the team did not have the correct equipment required to undertake the clean outs and wash outs and Mr Neale should have been addressing other priorities.[26]  Mr Neale was also concerned that the team was sent into the field without lunch provisions and that he organised that lunch be sent to the team and provided them with hand sanitiser prior to eating lunch.[27]
  1. [31]
    Mr Neale submits that the Strike Team leader was not given a proper briefing before leaving the ICC.[28] However, I am unable to see how this is an issue that directly relates to Mr Neale's complaint about Mr Forde. Similarly, the evidence Mr Neale points to regarding 'wash down facilities' does not appear to relate directly to Mr Forde's apparent instructions to go to Kokoda Street on 9 February 2019.
  1. [32]
    Arising from the events of 9 February 2019 at Kokoda Street, Ms Neale wrote an email to Mr Daryl Camp and Mr Peter Rinaudo with the subject line: 'Formal Complaint'.[29]  In that email, Mr Neale made a formal complaint about Mr Forde and said that he had 'compromised the safety and wellbeing of SES members and RFS members'.
  1. [33]
    On 26 February 2019, Ms Helen Simpson, A/Workforce Liaison Manager, QFES wrote an email to Mr Kevin Walsh, Assistant Commissioner regarding the complaint made by Mr Neale. This email stated that the Workplace Conduct Branch Assessment Team had determined that the matter was suitable for management to deal with. It was recommended that Mr Walsh delegate the matter to a manager to deal with and stated that the complaint had been delegated through the complaints management system Nexus, to Ms Michelle Stallan, a regional consultant, for updating and assistance through to completion.
  1. [34]
    Ms Stallan provided evidence to the Commission confirming that following review of the complaint, it was determined that local management could deal with the matter and that Mr Camp was delegated to undertake a fact-finding exercise with Ms Stallan available to provide advice to Mr Camp if required.[30]
  1. [35]
    Mr Barber provided evidence to the Commission regarding the way complaints are dealt with. He stated that complaints are registered through the complaints management system and are allocated a conduct and performance excellence (CaPE) level.  Mr Barber said that depending on the CaPE level, the complaint is delegated to the region for regional action and a person is appointed to undertake the process.[31] Mr Barber said he did not oversee the process because that was the function of the Senior Advisor Workplace Standards.[32] Mr Barber said he only became aware of the complaint Mr Neale had made about Mr Forde when Mr Neale's WorkCover claim was lodged.[33]
  1. [36]
    On 5 March 2019, Mr Camp sent an email to Mr Neale advising him that Mr Camp had been 'delegated the task of facilitating a fact finding mission and to then speak with some other people before speaking to him about the matter and how it will be dealt with'.[34]   During cross-examination, Mr Neale agreed that it was a matter for Mr Camp to determine how to investigate the complaint, but Mr Neale believed that Ms Eadie and Mr McIntosh should have been interviewed by Mr Camp.[35]  Mr Camp's evidence was that he did not interview Ms Eadie or Mr McIntosh because he was of the view that they had nothing to do with the complaint.[36]
  1. [37]
    I note that Mr Neale also believes that as his complaint related to health and safety matters, it should have been dealt with or investigated as a safety matter rather than a conduct matter.  The evidence at the hearing made it clear that the complaint was made through the system regarding workplace conduct and not as a health and safety matter. It is entirely reasonable for the complaint to have been escalated and allocated in the way that it was, given the nature of the complaint and the way it was made.
  1. [38]
    Part of the complaints process involves a benchmark timeframe for Category 1 matters to be finalised within a 28-day period.[37]  On 17 April 2019, Mr Neale wrote to Mr Camp asking about when they would be able to reschedule their appointment to discuss the complaint. At the hearing, Mr Camp addressed the matter of why the fact-finding interview with Mr Neale had not occurred within the 28-day period and said, 'we were still in operations until after Easter' and that it was difficult to align diaries and find a time when both Mr Camp and Mr Neale were free.[38]
  1. [39]
    Mr Camp said that he spoke to Mr Forde to ascertain his recollection of the events and what Mr Forde had said at the time.[39]  Mr Camp was shown Exhibit 104, a document which was prepared by Mr Forde but Mr Camp said that he had no recollection of receiving the document.[40]
  1. [40]
    The Respondent points out that Mr Neale subsequently took five months off work, from May to October 2019.[41] Mr Neale was asked in cross-examination why he had taken leave for this period and he replied that he:

…had enough of all the constant bullying from John Forde.  I need a time off. I had been talking with a peer support officer over bits and pieces for over 12 months before that.  I can't exactly recall where I first talked to the PSO, peer support officer, PSO, but, yeah, there's quite a number of occasions where I've asked – when she has come in to 602 – her name is Lyn Raveglia…[42]

  1. [41]
    Mr Neale was asked if that was the sole reason that he took the leave and he said, 'Yeah. It was actually the peer support officer suggested, "You're a bit stressed. Have you got some time you can take off?"'[43]
  1. [42]
    Ms Raveglia gave evidence that Mr Neale had spoken to her about matters relating to Mr Forde including that Mr Forde was bullying him; the 2019 floods; work tasks he was being given and how he was being treated.[44]  Ms Raveglia could not recall any specific information regarding what Mr Neale had said about Mr Forde.[45]
  1. [43]
    Mr Neale's evidence about Mr Forde addressed the events at Kokoda Street and said that Mr Neale is 'doing jobs that I shouldn't be doing'.[46]  Mr Neale was asked how Mr Forde may have badly or wrongly treated him and said that he could not think of a 'specific item right now', there had been 'lots of different bits and pieces' but that he could not recall any of them at the time he was giving evidence.[47]
  1. [44]
    With regard to the leave Mr Neale took, he said that he was initially advised to take three months leave but that he later extended this because he 'wasn't ready to go back'.[48] Mr Neale said that during his leave, he worked on his business, 'Fisho's Friend'.  Mr Neale's email to fellow employees on 16 May 2019 said that he was taking three months' leave of absence and would be 'putting my time into getting my invention Fisho's FriendTM up and going'.[49]
  1. [45]
    With regard to his email informing fellow employees that he was taking leave to work on his invention, Mr Neale points to his evidence in cross-examination where he said, 'I'm not going to send people an email and tell them I've got mental issues, I need time off. That's the last thing I wanted people to know.'[50]
  1. [46]
    Mr Neale said that some time before he went on leave:

…John Forde had actually come in and seen me and he said, have you got a minute or can I see you for a minute or whatever. He just – that's what he used to say.  I've gone in. He's had a manila folder, same as one of them. We've sat down in one of the training rooms. And he said, Darryl's asked me to investigate this incident. And I said – just said to him, you're shitting me. I said this is about you. He said Darryl has told me to investigate it and I asked him who else has been questioned.  He said Jess Eady but she could not remember anything.  I said to him has Phil McIntosh been interviewed yet, 'cause he was the station officer in charge of the first and rescue appliance. He said no, he hasn't. And I more or less just walked out.  I said no, you can't investigate your own investigation against yourself.[51]

  1. [47]
    Mr Neale said that he was 'dumbfounded' that Mr Forde was investigating a complaint about himself and that Mr Camp had asked him to do this.[52] Mr Neale gave evidence that he told Mr Thompson, Mr McIntosh, Ms Sutcliffe and Ms Raveglia about it.[53]  Mr Neale said that he would have told others about it and identified Mr McLennen and Ms McKenzie as people he possibly told.[54]
  1. [48]
    The Respondent submits that on his own account, despite finding the matter odd or wrong and allegedly informing his co-workers of the matter, he did not take the issue up with anyone and could offer no explanation as to why he did not do so.[55]  Mr Neale said that he had no confidence in Mr Camp but did not offer an explanation about why he did not seek assistance from someone else.[56]
  1. [49]
    The Respondent further submits that Mr Neale called McIntosh, Thompson, McKenzie, McLennen and Sutcliffe as witnesses but he did not ask them whether they could recall having a discussion with Mr Neale about the fact that Mr Camp had asked Mr Forde to investigate Mr Neale's complaint.
  1. [50]
    Mr Forde says he did not tell Mr Neale that he would be the person investigating Mr Neale's complaint.[57]  Further, Mr Camp's evidence was that he did not ask Mr Forde to speak to Mr Neale in respect of his complaint because he 'knew it had to be somebody else'.[58]
  1. [51]
    The Respondent argues that given the Appellant's failure to put to any of the witnesses the contention that Mr Forde told Mr Neale he was investigating the complaint, the Commission should conclude that Camp did not ask Forde to investigate the complaint and further, that Forde did not investigate the complaint.
  1. [52]
    When Mr Neale returned to work, he met with Mr Camp on 14 November 2019.[59]  In an email sent on 28 November 2019, Mr Camp advised Mr Neale that the complaint against Mr Forde and the allegations he had made were found to be unsubstantiated.[60]  Mr Neale was 'very dissatisfied with the outcome'.[61]
  1. [53]
    Mr Neale says that Mr Camp's investigation 'breached… many policies and procedures'[62] and that Mr Neale was not dealt with fairly or objectively in accordance with the principles of natural justice.[63]  Mr Neale's contention is that it was unreasonable for Mr Forde to task the Strike Team to undertake the job at Kokoda Street.[64]
  1. [54]
    The Respondent says that the Commission should find, having regard to Mr Forde's evidence, that he did not task the Appellant or the Strike Team to engage in any clean outs or wash downs.[65]  Mr Neale says that the Commission should find that Mr Forde 'did task the SES team from the EOC, the Appellant, and Strike Team, to engage in wash outs and clean outs'.[66]
  1. [55]
    Mr Neale is of the view that his complaint should have been assessed as a CaPE 3 matter due to the seriousness of the workplace health and safety issues he says he raised.[67] Mr Neale also says that the complaint should have been formally investigated.[68]  Mr Camp's evidence was that he had no involvement in Mr Neale's complaint being categorised as a CaPE 1 matter.[69] 
  1. [56]
    Mr Camp says that after he was delegated the task of dealing with the complaint, he advised Mr Forde that a complaint had been made against him and spoke to him to get 'his side of the story'.[70] Mr Camp thought this would have occurred within a week or two of being allocated the task of dealing with the complaint.[71]
  1. [57]
    With regard to the timeframe for dealing with the complaint, Mr Camp said that 'there was a considerable time where I just couldn't align my diary with Ian's diary to sit down and talk about this.  Ian had a number of months off work and I was told not to contact him while he was off work, because this is a work-related matter.'[72]  Mr Camp said that March and April had been very busy operationally and that he would normally delegate the fact-finding task to the area controller but he could not do that in this case because the complaint was about the area controller.  Mr Camp said that when Mr Neale returned from leave, Mr Camp was reminded that he had to complete the complaint.[73] 
  1. [58]
    With regard to the discussion Mr Camp had with Mr Neale in November 2019 regarding the complaint, Mr Camp gave the following evidence:

[MR CAMP:]…So we had the allegations from Ian. I completed the fact finding, talking to the other people that he mentions in his complaint, and I wanted to talk to Ian to find out how he felt about the information I had collected and presented to him. And we spoke about the day, what happened, and during that discussion, Ian said that he felt that he should treat it like wash-outs that he'd been to previously on deployment. So even though he was given a direction to attend a media shoot, Ian spoke to me and said that he took it upon himself to get those people to do wash-outs and other work. And we talked about this, the fact that they were sent for a media shoot and Ian as the one who put them into the position of doing the clean-outs. All they were supposed to be was orange people for the media to get video and photos of and then return them to their Headquarters.

[MR MCLEOD:]Right. Okay. So from that answer you've just given, would it be a fair analysis of the reason you met with Mr Neale on the 14th November 2019 was that you had his complaint, you had undertaken a fact-finding mission and discussed relevant matters with other personnel, effectively got their version of events or recollections, and did you discuss their recollections or their version of events with Mr Neale in light of what he contended for in the complaint in respect to a number of allegations he'd made?

[MR CAMP:]--Yes, I did.[74]

  1. [59]
    The Respondent submits that while there is a benchmark of 28 days to finalise a complaint, it does not follow that a complaint 'must' be finalised within that timeframe.  The Respondent says that delay in finalising the complaint must be considered in light of the explanation provided by Mr Camp regarding difficulties in aligning diaries; Camp's busy operational workload in the period from February to April which included flood clean up; Mr Neale's leave from May to October 2019 and Camp's advice not to contact him during this time and the complaint being finalised upon Mr Neale's return from leave.[75]
  1. [60]
    The Respondent submits that the process adopted by Mr Camp in dealing with the complaint was undertaken in a reasonable way and there is no warrant for the Commission to find that it was unreasonable.[76] Unsurprisingly, Mr Neale contends that the process was unreasonable.
  1. [61]
    Mr Neale's submissions set out his extensive concerns about the actions of Mr Camp and Mr Forde with regard to the complaint Mr Neale made, the process applied in addressing the complaint and the outcome of the complaint.  Mr Neale makes references to a range of QFES policies and procedures he says were not followed and a range of breaches of the Code of Conduct and Public Service Ethics Act on the part of Mr Camp and Mr Neale.[77] Mr Neale also says that Mr Forde, Mr Camp and QFES have committed offences by their failure to protect workers.[78]
  1. [62]
    Mr Neale's submissions then go completely beyond the scope of this appeal in asking the Commission to make various findings and 'take appropriate measures' against QFES, Camp and Forde to hold them accountable for their actions.

Consideration – Complaint against John Forde

  1. [63]
    On the basis of the evidence before the Commission, I am not persuaded that Mr Forde tasked Mr Neale, or others, with cleaning out and washing out houses on Kokoda Street on 9 February 2019.  I accept that the instruction was to attend a media event and to have a presence there while videos and photographs were taken.  It seems more likely to me that Mr Neale or others took it upon themselves to undertake this work once they were at Kokoda Street and no media presence was apparent.  It also seems to me that it was open to Mr Neale to return to base when it was clear that no media presence was in attendance and when he became of the view that members of the team were fatigued and/or the team was not equipped to undertake operational duties involving clean outs and wash outs.
  1. [64]
    Having determined that Mr Forde did not place the team at risk by way of asking Mr Neale and others to attend the media event, it was reasonable for Mr Camp to determine the complaint unsubstantiated and to inform Mr Neale of this.
  1. [65]
    With regard to the management action surrounding the complaint and the process surrounding the complaint, I accept the explanation provided by Mr Camp about the delay in addressing the complaint.  It was entirely reasonable, given the operational pressures arising from the flood, for there to be a delay in organising a time for Mr Camp to speak with Mr Neale about his complaint.  It was also entirely reasonable for Mr Camp to wait until Mr Neale was back at work following leave to speak with him about the complaint.
  1. [66]
    Mr Neale may not agree with the category given to his complaint.  But this does not make the decision to allocate a CaPE 1 to the complaint and forward it to Mr Camp to deal with unreasonable.  Further, Mr Neale may have a view that his complaint warranted a large-scale and serious external investigation, but I cannot find that it was unreasonable for the complaint to be dealt with in the way that it was.
  1. [67]
    I do not accept that Mr Camp tasked Mr Forde with investigating the complaint or conducting an investigation interview or fact-finding with Mr Neale.
  1. [68]
    Therefore, the management action surrounding Mr Neale's complaint about Mr Forde was reasonable and undertaken in a reasonable way.

Assignment of work and work performance  

  1. [69]
    This part of Mr Neale's case can be broken down into a range of specific issues.  The Respondent's closing submissions are grouped according to those particular issues. Mr Neale appears to have adopted these same issues and so it is convenient for me to deal with them in this fashion.

Allocation of work tasks and Road Crash Rescue (RCR)

  1. [70]
    Mr Neale's evidence was that he is a qualified RCR operator and Mr Forde tasked him with undertaking an RCR audit in relation to Greenvale, Pentland, Charters Towers and Ravenswood.  Mr Neale gave evidence about the steps he undertook to complete the audit process.
  1. [71]
    The evidence demonstrated that on 21 October 2019, Mr Forde provided Mr Neale with an RCR Audit Tool via email. In that email, Mr Forde initially required that the audit be undertaken by 8 November 2019.  Mr Neale confirmed that he received and read the email but said that he spoke to Mr Forde and said that he cannot force the various locations to return their information to him on a particular timeline.[79]  Mr Neale said that Mr Forde changed the timeframe for the task to 28 November 2019 because, as at 8 November 2019, Mr Neale did not have the required information.[80]
  1. [72]
    On 28 November 2019, Mr Forde sent an email to Mr Camp containing the information Mr Neale collected for the audit.[81]  Mr Camp replied to that email on the same day stating that he knew that there had been items missed for Pentland.  In his evidence before the Commission, Mr Camp confirmed that he knew items were missing.[82]
  1. [73]
    Mr Neale's complaint with regard to this matter is that he was 'pinged' for incorrect information appearing in the audit, however, as the Respondent points out,[83] Mr Neale did not have any evidence to this assertion.  Mr Neale's evidence appears to be that Mr Forde pulled him aside and told him that there were parts missing from the audit.[84]
  1. [74]
    It was put to Mr Neale that at some stage, the audit was incorrect with respect to Pentland.  Mr Neale agreed. Mr Neale also agreed with Mr Forde's comment that the audit was incorrect but that those errors were rectified.
  1. [75]
    In cross-examination, Mr Neale was asked exactly what his issue was regarding the RCR audit process. Mr Neale's response was that 'Mr Forde has said my audit was not complete, it was inaccurate. There was something else wrong with the audit I done'.[85]
  1. [76]
    It appears that Mr Forde told Mr Neale that he would need to go to Charters Towers to get further information because that audit had not been properly completed by Wally, the Charters Towers SES representative.  Mr Neale agreed that there was nothing unreasonable about that request.[86]
  1. [77]
    With regard to the aspect of the audit regarding incorrect information entered for Pentland, the Respondent says that when reviewing the audit, Mr Camp picked up on items that were not documented in the audit.[87] The mistake was identified and then corrected. The Respondent says that the fact Mr Camp identified an error in the documentation cannot be said to be unreasonable and that Mr Camp was simply doing his job.[88]
  1. [78]
    With regard to the audit information for Charters Towers, Greendale and Ravenswood, Mr Neale was required to physically go out to the relevant locations and obtain the incomplete information.[89]  The Respondent says that Mr Neale accepted in his evidence that it was his job to chase up the information and that this is what he did.[90]
  1. [79]
    I am unable to find that there is anything at all that was unreasonable about Mr Neale being required to ensure that correct and complete information was included in the audit.  It was entirely reasonable for Mr Camp to identify an error and for him to ask Mr Forde to request that Mr Neale address that.

Blue card issues

  1. [80]
    Mr Neale said that from November 2019 to May 2020, there was a problem with obtaining blue cards for all personnel at QFES. Mr Neale's evidence was that Mr Forde came to him and told him that he would need to look after Blue Cards.  Mr Neale said that he told Mr Forde that he does not know anything about Blue Cards and that 'Michelle is looking after them'.  Mr Neale said that Mr Forde told him that they would sit down and teach him what would be required of him. Mr Neale's evidence appeared to be that despite Mr Forde allocating this task to him, he and Michelle continued to do the work as they were previously and that this occurred 'until John found out about what Michelle and me were doing'.  Following this, Mr Forde sent an email out to local controllers telling them that from that point, Mr Neale would be the 'main go for Blue Cards'.[91]
  1. [81]
    Mr Neale went on to talk about the task of organising Blue Cards for Palm Island.  Mr Neale said that Mr Forde sent him an email[92] at 9.15am with a list of members on Palm Island who were going to be 'kicked out of the SES' if they did not 'fill out their Blue Card'.[93] Mr Neale said Mr Forde wanted the task done by 11.00am and that this gave him one hour and 45 minutes to undertake that task.  It appears that Mr Neale was asked to contact Illie, a local controller, to tell him the names of those requiring paperwork and advise him that those people would receive a letter telling them they are no longer able to be in the SES. 
  2. [82]
    While I have no reason to doubt Mr Neale's evidence that he had previously found it difficult to obtain information from Palm Island at times, I am unable to find anything unreasonable about a request from Mr Forde that Mr Neale simply pass on some information and a list of names to a contact on Palm Island.  One hour and 45 minutes is not an unreasonable timeframe to undertake such a task. There is no evidence before me that Mr Neale told Mr Forde that this was an unreasonable request or a task which could not be achieved or that any further action was taken by Mr Forde against Mr Neale with regard to this task.

Other matters relating to tasks allocated to Mr Neale

  1. [83]
    Mr Neale raised an issue about not being given a form to send to SES members and that he sent an email to Mr Forde on 20 April 2020 requesting the form.[94] I agree with the Respondent that Mr Neale did not go on to provide any evidence about what flows from that matter.[95]
  1. [84]
    Mr Neale said that over a period of two and a half years, many of the tasks he was given by Mr Forde were provided verbally and that there was no email notification of the task.[96] Mr Neale said that some of these tasks 'will take up an hour of your time, if not more on some occasions' and that they would take him away from his other work.[97]
  1. [85]
    Mr Neale said that in addition to work tasks provided to him by Mr Forde, Mr Swan would also allocate tasks to him 'now and then'.[98]
  1. [86]
    The Respondent submits, and I agree, that Mr Neale's complaint appears to be that the tasks Mr Forde and Mr Swan gave him took him away from his other work, namely, organising training.[99] Mr Neale's job entailed a range of tasks other than organising training and it seems reasonable that he was allocated tasks by his managers on a day-to-day basis, both by email and verbally.  It does not appear that workload was Mr Neale's complaint, rather the type of work he was allocated and his belief that this was not work he should have been undertaking. I have not identified any task Mr Neale was asked to undertake which I consider to be inappropriate given his role.
  1. [87]
    Mr Neale gave an example in evidence where he was forwarded a task to do and he replied saying 'can't do' and the task was then completed by someone else.  Again, I agree with the Respondent that how this is an issue is not apparent.[100]

Palm Island trip

  1. [88]
    Mr Neale gave evidence that in early October 2020, he was tasked with attending Palm Island to obtain induction checklists; attendance sheets; Blue Card applications and PPE and requisitions.[101]
  1. [89]
    Mr Neale said that Mr Forde told him that he would need three days to complete this work.  Mr Neale disagreed and his evidence was that he believed it could be done in one day.[102] Mr Neale also gave evidence that he did not believe it was his job to gather paperwork in relation to Blue Card applications.[103]
  1. [90]
    Under cross-examination, Mr Neale accepted that he could have raised these issues with Mr Forde, but he did not do so and could provide no explanation as to why he did not raise these matters.[104]
  1. [91]
    Mr Neale also gave evidence that he was unhappy that transport was not arranged for him on Palm Island.[105] Mr Neale forwarded an email to Ms Jess Coleman with regard to this and arrangements were made.[106]
  1. [92]
    There was some evidence that while Mr Neale was on Palm Island, he held discussions about organising a 'work for the dole' project and that at some later date, this was cancelled by Mr Forde.[107]  It is unclear exactly what Mr Neale's complaint about this is, given that it does not appear that organising a 'work for the dole' project was part of the duties to be undertaken by him on that trip.  Mr Neale also gave evidence that the paperwork was not ready when it was time for him to leave and so he agreed that it could be forwarded to him at a later date.[108]  It appears that at some point, Mr Neale understood that Mr Forde wanted to meet with him about this. Again, it is unclear what the exact complaint Mr Neale makes about this is.[109]  There is nothing before me to indicate that these matters constitute unreasonable management action.
  1. [93]
    I agree with the Respondent's submission that it is not apparent what arises from these matters and what the nature of the complaint about the Palm Island trip is.  Mr Neale may have held a different view about how long the trip would take and may have held an expectation that travel would be organised for him.  However, there is no evidence that Mr Neale sought to raise a complaint about the length of the trip and it appears that the travel ended up being organised. There is nothing unreasonable about the action of requesting Mr Neale to attend Palm Island or evidence that this action was undertaken in an unreasonable way.

Community engagement trailer project

  1. [94]
    The evidence shows that the Rotary Club had some funds available from the recent floods and were seeking to provide $20, 000 to the SES to support them in purchasing anything that might be required. It appears that Mr Forde determined that the funds would be used for a 'community engagement trailer' and he drafted a plan for the trailer in order to obtain quotes for construction.[110] Mr Neale's evidence was that he had some input into the design of the trailer.[111]
  1. [95]
    Mr Forde tasked Mr Neale with seeking quotes for the construction of the trailer and to have oversight of the project.[112]  It appears that Mr Neale was unhappy with being asked to obtain the quotes and was of the view that Mr Forde should have undertaken this task himself.[113] Mr Neale said that while he only had to obtain two or three quotes, he decided to obtain six or seven quotes from local manufacturers.[114]
  1. [96]
    Mr Neale said that Mr Forde would ask him two or three times a week how the quotes were going.  Mr Neale found these requests unreasonable.  Mr Neale said that when Mr Forde would ask for the quotes, he would tell him, 'I can't force them to give the quote'.[115]  Mr Neale said that when he received the quotes, he forwarded them to Mr Forde.[116]  It is unclear what, other than asking about the progress on the quotes, Mr Forde may have done that was unreasonable in relation to this task he allocated to Mr Neale.[117]
  1. [97]
    Mr Neale's evidence was that obtaining the quotes took him away from his other work  but that he was happy to get out of the office to obtain the quotes.[118]
  1. [98]
    While Mr Neale was of the view that obtaining the quotes was not his job, he did not take this matter up with Mr Forde and said that 'we work as a team'.[119] Under cross-examination, Mr Neale agreed that there may be occasions where a manager or supervisor might ask an employee to undertake a task outside their job description.[120]  I agree with the Respondent's submission that this task was not work outside of the scope of Mr Neale's work duties. 
  1. [99]
    Mr Neale's evidence was that he was removed from the project, but it appears that once the quote was accepted and the design was finalised, there was no more work required from Mr Neale with regard to the trailer and so he took on other projects. Mr Forde's evidence was that the only further work required with regard to the trailer was to 'go and see the actual construction' and that he and Mr Neale would 'jump in the car and shoot down there and see how it was progressing'.[121]
  1. [100]
    Having considered the evidence regarding the community trailer project, I am unable to identify anything unreasonable about actions involving Mr Neale being tasked with obtaining the quotes; Mr Forde checking in about the progress on the quotes; or Mr Neale being tasked with other projects once the trailer was under construction. Mr Neale submits that he would start tasks but never got to finish them because Mr Forde would take over, however it is unclear to me what the impact of this was and why it would be unreasonable for Mr Forde to task Mr Neale with undertaking the initial work on a project.[122]

The storm damage project

  1. [101]
    The evidence indicates that at some point after the community engagement trailer project, Mr Neale commenced work on a storm damage project. The storm damage project involved the production of a physical resource to be used for training. Mr Forde said that he showed Mr Neale pictures of what was required and Mr Neale came back with a concept and commenced the construction process.[123]
  1. [102]
    Mr Neale was of the view that the project was his own, that he had built such projects previously and that it was his own idea to make it.[124]  Mr Neale cross-examined Mr Forde about the project and put to Mr Forde that 'I offered to build it in my own time that was available to me and it wasn't tasked from you?'. Mr Forde replied that when the two had talked about it, Mr Neale had said he was happy to build it and that he was going to build it in work time.[125]
  1. [103]
    It appears that Mr Neale decided that he wanted to include a particular type of window in the project and that there were significant delays while he waited for one to become available via a demolition yard.  It also appears that over the six months or so that it took to construct the project, Mr Forde would ask how the project was going or progressing.[126]
  1. [104]
    It appears that at some point, Mr Forde put in place a date for completion of the project 'just to get it done and out of the way'.[127]  Mr Neale gave evidence that there was no need for a timeframe to finish the project as there was no storm damage course coming up.[128] When the initial timeframe passed and the project was still not complete, an extended timeframe was put in place. Mr Forde continued to follow up with Mr Neale and there are a series of emails which capture the exchange between Mr Forde and Mr Neale with regard to the project.[129]
  1. [105]
    Mr Neale describes being 'hounded' about the project and points to an email where Mr Forde states, in part:

How are we going with the door project? Have you consider taking the door you want to add the sliding one in home to work on it…just to get it completed…just a thought.[130] 

  1. [106]
    Mr Neale responded to that email telling Mr Forde that he could not finish the project until he had the window cut to the size he wanted and that he would finish it at 602 when he had the window.[131] Mr Forde sent a further email to Mr Neale on 18 March 2020. That email stated, in part:

I hope that your door project for the storm damage is completed this Friday, as I have given you the extra week and you have had this for several months now…

If this is not done as requested that will be another requested project that you have been tasked within a timeframe that you would not have completed, as such I have to advise Amanda…

So I'm going to give you the benefit of the doubt and believe that this will be completed by close of business Friday.[132]

  1. [107]
    Mr Neale felt that the email was threatening him with a CaPE 1 offence.[133] Mr Neale also appeared to think that Mr Forde's concerns about the timeframes and completion of the task was not fair in circumstances where it was a task he had 'given meself'[134] and that it was being completed in his 'own time'.  Mr Neale's evidence is that he did not seek to raise his annoyance regarding the email with Mr Forde and that he did not want to talk to Mr Forde, Mr Camp or Mr Swan.[135]
  1. [108]
    On 25 March 2020, Mr Forde followed up about the completion of the door project.[136]  In that email, Mr Forde says, 'Can I just ask if the Door project has been completed as there is several doors laying around the MPA that we need to move out of the way?'.
  1. [109]
    At some point the door project must have been completed and on 5 May 2020, Mr Forde wrote to Mr Neale stating that he considered the storm damage project was now completed and thanking Mr Neale.[137]  Mr Neale said that when he received this email he thought, 'Why would you still keep hounding a person on a project that's already been completed and done, just to get inside someone's head'.[138] The Respondent submits that Mr Neale may have held this view but that it is a misconceived position because all that Mr Forde was doing in the email was thanking him.[139]
  1. [110]
    Having considered the evidence regarding the storm damage project, I am unable to identify any unreasonable management action.  It appears that a decision was made that Mr Neale would undertake the storm damage project.  Mr Neale agrees that the project dragged on and that there were significant delays in securing the particular window he wanted to use on the project.  It was entirely reasonable for Mr Forde to seek updates on the project and to express to Mr Neale that there was an expectation that the project would reach completion. Mr Neale may have held a view that it was his 'own project' to be completed in his 'own time', but it was a work project and was being completed in work time.  Mr Forde informed Mr Neale that the ongoing failure to work within timeframes may lead to a report to the Workplace Conduct Officer, however there is no evidence that this ever occurred or that Mr Neale raised a concern with Mr Forde about the fairness or otherwise of such a proposed action.  It appears that the project was finally completed, Mr Neale suffered no adverse consequence for the delays and Mr Forde thanked him.  Mr Neale may have a view that he was being hounded or treated unfairly or that the email thanking him was designed to 'get inside' his head, but I am unable to establish any unreasonableness in relation to the storm damage project.

Management action regarding allocation of work tasks and oversight of projects was reasonable

  1. [111]
    The Respondent submits that Mr Neale's evidence demonstrates that he has a firm view of how he considered each of the projects should have been done. The Respondent says that Mr Forde's actions in making enquiries with the Appellant as to how the projects were progressing was entirely reasonable in all the circumstances. The Respondent says that what emerges from Mr Neale's evidence is that tasks allocated to him were to be done as he saw fit and that when questioned about timeframes and the progress of projects, Mr Neale's response was to take issue with such enquiries. The Respondent submits that there was nothing unreasonable about Mr Forde 'chasing' up the progress of matters and, when warranted, Mr Forde agreed to extend time frames in order for Mr Neale to complete his tasks.[140]
  1. [112]
    I agree with the Respondent's submission above. Mr Neale may have disagreed with the way Mr Forde and/or Mr Swan allocated tasks or managed and oversaw projects, however this does not make their actions unreasonable.  Having considered the extensive material and evidence regarding the work tasks and projects Mr Neale complains of, I find that the management action taken in regard to each was reasonable and was undertaken in a reasonable way.

Course attendances

  1. [113]
    Mr Neale says that he was removed from a number of courses by Mr Forde and Mr Swan.  Mr Neale says that the reason he was taken off the courses was because of his hernia. Mr Neale is of the view that Mr Forde was the decision-maker regarding his removal from courses. It is clear that Mr Neale thinks that it was unreasonable for him to be removed from the courses, however Mr Neale makes no submissions as to why the action of cancelling courses or removing him from courses on the basis of his hernia was unreasonable.
  1. [114]
    Mr Forde's evidence was that he did not take Mr Neale off any courses because that was a matter for Mr Swan to decide.[141]
  1. [115]
    Mr Swan recalled that the courses Mr Neale was booked to do were four-wheel drive; first aid; and working safely at heights.[142]  Mr Swan recalled that courses did not go ahead because of COVID-19 or because there were not enough students. Mr Swan said that it was usual for courses to be postponed or moved.[143]
  1. [116]
    Mr Swan recalled that Mr Neale was on sick leave when the working safely at heights course was to take place.[144]  Mr Swan said that he made a decision to remove Mr Neale from the four-wheel drive course on the basis that it was not safe for Mr Neale to participate in the course with his hernia condition.  Mr Swan said, 'I'd be negligent in my responsive duties. Because a four-wheel drive course, you're in a four-wheel drive vehicle, bouncing up and down, jarring, sudden motions'.[145]  Further, Mr Swan said that Mr Neale would have been participating in the course as a 'trainee trainer' and that it was not unusual for trainers to be told that, for various reasons, they were no longer going to be on a course.[146]
  1. [117]
    Mr Swan recalled that the first aid course did not go ahead because of COVID-19 but also because of Mr Neale's hernia.[147]
  1. [118]
    The Respondent submits that it cannot be said that the decision to take Mr Neale off any of the courses was unreasonable.[148] I agree with the Respondent that the evidence demonstrates that where a particular course did not go ahead, it was on the basis of COVID-19 or insufficient numbers. Where a course went ahead but Mr Neale was removed from it, it was, on both Mr Neale's and Mr Swan's evidence, due to his hernia.
  1. [119]
    It is entirely reasonable for Mr Swan, or Mr Forde for that matter, to take Mr Neale's hernia into account when considering if participation in a particular course was appropriate.  The hernia condition meant that there were restrictions on Mr Neale's normal work duties.  Mr Neale's GP had provided advice regarding his work capabilities and his managers were acting upon this advice.

Course feedback

  1. [120]
    Around November 2019, Mr Neale was involved in some courses as the lead trainer. Following receipt of feedback about the course, Mr Neale provided his own feedback and suggestions directly to State Operations.[149]  Mr Neale agreed that he did not provide the report he had prepared to Mr Forde or Mr Swan before sending it to State Operations ('State').[150]
  1. [121]
    Mr Neale believes that part of his role is to identify issues arising from training and to provide feedback. Mr Neale points to his role description and says that reviewing training is a part of his role.[151]
  1. [122]
    It appears that upon becoming aware that Mr Neale had sent the report directly to State Operations rather than following the process of discussing recommendations for improvements with Mr Swan or Mr Forde first, Mr Forde spoke to Mr Neale.  Mr Neale agreed under cross-examination that Mr Forde had explained the process to him.[152]  However, Mr Neale disagreed with the process and said that the report should be sent to 'State' because 'State are the ones that make the decision on whether that information is valid to change a course, implement new procedures – not Mr Forde'.[153]  Mr Neale was asked if he had raised with Mr Forde that he did not think the correct process involved taking to Mr Forde before sending that report to 'State'. Mr Neale could not recall.[154]
  1. [123]
    The Respondent submits that it can be inferred from the evidence that Mr Neale did not raise any concerns with either Mr Forde or Mr Swan about the process for providing feedback and suggestions regarding course.  The Respondent says that in any event, where the evidence demonstrated that Mr Neale had not followed the correct process, there was nothing unreasonable in raising with Mr Neale that his actions were not appropriate.
  1. [124]
    I have considered the evidence and submissions regarding this aspect of Mr Neale's appeal. It appears that Mr Neale did not follow the correct process for provision of feedback and that Mr Forde had a conversation with him to inform him of the expectation. In the event that the correct process was followed and Mr Forde was mistaken, there is no evidence that Mr Neale sought to clarify this. There is nothing unreasonable in this action taken by Mr Forde.  I note Mr Neale's submission that the conversation with Mr Forde about this direct communication with State occurred 'with no notification' or 'opportunity to bring a support person'.[155] There is no evidence before me that there was a need for a formal meeting or a support person to be present for Mr Forde to check in with Mr Neale about the correct process for provision of feedback to State.

The failure to place Mr Neale on a performance improvement plan and Mr Neale's performance more generally

  1. [125]
    Mr Neale says that if the issues arising from the RCR audit, the Palm Island trip, the handling of Blue Cards, and the storm damage project meant that management thought his work performance was not up to the appropriate standard, he should have been placed on a Performance Improvement Plan (PIP).[156] It was put to Mr Neale under cross-examination that matters involving the storm damage project and costing errors identified by Mr Forde did not warrant him being placed on a PIP and Mr Neale agreed.[157]
  1. [126]
    Mr Neale was of the belief, based on his emails and discussions with Mr Forde, that Mr Forde considered his work performance was poor.[158]
  1. [127]
    With regard to the identification of errors in the spreadsheet Mr Neale was producing, Mr Neale accepted that he made mistakes and that Mr Forde picked up those mistakes.  Mr Neale agreed that he eventually fixed up those mistakes and accepted that Mr Forde was doing his job in identifying the mistakes.  However, Mr Neale said that the way Mr Forde did this was unethical.  Mr Neale's evidence was that Mr Forde was unethical in identifying issues and asking Mr Neale to fix them.[159]
  1. [128]
    In addition, Mr Neale agreed that that he made a number of mistakes with regard to his costings but said that it was not part of his position to do costings.[160]  Mr Neale said that he did not raise the issue of preparing costings not being part of this job with Mr Forde, Mr Swan or Mr Camp.[161]
  1. [129]
    Mr Neale was asked to specifically provide any other reasons he believed he should have been placed on a PIP.  Mr Neale said that he was asked to provide dot points to Mr Swan regarding what work tasks he was undertaking when he was working from home.[162]  Mr Neale said that he initially complied with Mr Swan's request but he formed a view that he was the only one being asked to do this and that he was being singled out.[163]  Mr Neale's evidence was that he decided to stop sending emails to Mr Swan with the requested dot points on a daily basis and instead sent weekly emails with dot points.[164]
  1. [130]
    Under cross-examination, Mr Neale then said that he 'honestly could not think of one – one issue' that would warrant management putting him on a performance improvement plan.[165]
  1. [131]
    Mr Camp's evidence was that Mr Forde had raised complaints with him about Mr Neale's work tasks, conduct and behaviour.  Mr Camp was shown Exhibit 132 which was a file note prepared by Mr Forde recording performance issues involving Mr Neale.  Exhibit 133 was an email to Mr Camp from Mr Forde outlining work performance issues involving Mr Neale on 28 November 2019.  Mr Camp responded by saying 'when we get back, we will sit down with Amanda or Loretta and start a Performance Improvement Plan for Ian…'.[166]
  1. [132]
    On 28 November 2019, Mr Camp sent an email to Ms Walker asking for a meeting to discuss the possibility of starting a PIP for Mr Neale.  Mr Camp was unable to offer an explanation as to why a PIP was not subsequently implemented.[167]
  1. [133]
    In cross-examination, Mr Neale asked Mr Forde why a PIP was not implemented, Mr Forde said:

I believe it wasn't implemented because you were away a lot and between operations – because that November/December period is normally our storm/cyclone season. So whether it was operations or whether you were away or I was away or Daryl was away.  And I believe the other factor was that we had to sit down and go through the processes…[168]

  1. [134]
    Ms Walker provided advice to Mr Forde, Mr Swan and Mr Camp on 10 December 2019 which advised them that there must be a preliminary discussion with an employee prior to moving to a PIP.[169] Mr Forde's evidence was that he then had 'informal chats' with Mr Neale.[170]  Mr Forde said that ultimately, a decision was made not to place Mr Neale on a PIP because 'seven times Ian had stepped up. And as far as I was concerned, he was on the right track'.[171]
  1. [135]
    It appears to me that while at one point, there were discussions about whether it was appropriate for Mr Neale to be placed on a PIP, ultimately a decision was made that it was not necessary to do so.  Mr Forde appears to have formed a view that his informal discussions with Mr Neale had led to improvement in Mr Neale's work performance.  There is no evidence that the decision to not put Mr Neale on a PIP was unreasonable management action.
  1. [136]
    For completeness, I note that Mr Neale called two of his previous managers to give evidence about the standard of his work.[172]  I have reviewed this evidence and find that it is not of use to me in determining the matters before me.

Other matters related to Mr Neale's work role

Purchase of battery charger

  1. [137]
    There was evidence regarding Mr Neale being asked to go out and purchase a CTEK battery charger on 7 November 2019. It appears that the purchase did not go through the proper process involving a requisition form.  On 24 December 2019, Mr Camp wrote an email to Mr Neale asking him who instructed him to buy the CTEK battery charger.[173]  Mr Neale's evidence was that he had been verbally tasked with getting the charger and that he did not believe it was in his job description to purchase a battery charger.[174]  Mr Neale did not follow up as to whether a requisition form had been completed or not.  Mr Neale's concern about the proper process not being followed arose when he received the email from Mr Camp.  I am unable to determine anything unreasonable about Mr Neale being asked to purchase the battery or Mr Camp asking Mr Neale about who instructed him to buy the charger. Nothing appears to flow from this evidence in terms of unreasonable management action.

Arranging quotes for signage

  1. [138]
    In an email sent on 5 May 2020, Mr Forde asked Mr Neale to arrange quotes in order to get signage produced.[175]  Mr Neale sent an email reply to Mr Forde on 8 May 2020 with a number of prices quoted by various companies.  It appears that a request from Mr Forde on that same day regarding whether the quotes covered the correct number and size of signs led Mr Neale to have a perception that Mr Forde was playing around with him.[176]  The email said:

Just confirming its based on the image that was sent to you and is for 8 signs?

  1. [139]
    It seems to me that Mr Forde was simply ensuring that there was a shared understanding about what was being ordered and what the quote covered. I am unable to identify any unreasonable management action arising from this request.

Preparation of presentation and costings

  1. [140]
    On 16 March 2020, Mr Swan forwarded an email to Mr Neale informing him that he was responsible for preparing a presentation regarding unit KPIs for the shires of Palm Island; Flinders and Charters Towers.  Richmond was also added to this list.[177]  Mr Neale said that he asked Mr Forde on approximately four occasions to provide him with relevant information in order to assist him in preparing the reports for the presentation.  Mr Neale says that no information was provided to him.[178]
  1. [141]
    With regard to the Palm Island Unit training costings,[179] Mr Neale said that on his last day of work, there were three occasions where he took the document to Mr Forde, Mr Forde identified an error and asked him to take it away and do it again.[180]  Mr Neale's evidence was that he threw the document at Mr Forde and walked out.[181]
  1. [142]
    Mr Neale's evidence was that Mr Forde had, prior to the presentation deadline, asked him on a number of occasions how he was going with the presentation.  The information Mr Neale provided to Mr Forde led to Mr Forde identifying the costing errors.[182]
  1. [143]
    Mr Neale's evidence was that it was necessary to build a 'fudge factor' into the costings and that a difference of '$3, 000 is bugger all'.[183]  Mr Neale thought it was unreasonable for Mr Forde to ask him to correct the costings.[184] Further, Mr Neale was dissatisfied that Mr Forde had requested to see drafts of the presentation.[185]
  1. [144]
    On 9 June 2020, Forde wrote to Mr Neale attaching information about the presentation.[186] On 14 July 2020, Mr Forde sent an email to Mr Neale asking that 21 July 2020 be set aside for the training presentation and provided a detailed list of points to be addressed.[187] Mr Neale says that 'there's no mention of what format to deliver it in, or anything like that in that email'.[188]
  1. [145]
    Mr Neale's evidence is that he repeatedly requested that Mr Forde provide him with a special report of what his group's capabilities were so that he could provide a 'full and correct' report and that he sought information from Mr Forde to help him put his presentation together.[189] On 17 July 2020, Mr Forde sent Mr Neale an email attaching a report to assist Mr Neale with his presentation.[190] The email from Mr Forde stated that he report he was attaching was not an 'updated one' but that it would be a good foundation for Mr Neale to prepare his report. Mr Neale was of the view that Mr Forde was 'withholding information' from him.
  2. [146]
    Mr Neale said that his previous presentations had been given 'face to face' and in paper form.[191] It seems to me that what Mr Forde had set up on 21 July 2020, was an opportunity to give the presentation 'face to face'.  If it was unclear to Mr Neale how he was to present the information, it would have been reasonable for him to inquire of Ms Sutcliffe how she was planning to present her information, or to check with Mr Forde what his expectation was.  Mr Neale was an experienced trainer, so presenting his training information and costings to a small number of people was an entirely reasonable task.
  1. [147]
    It appeared to me from the evidence available that Mr Neale was given notice regarding the need to produce the presentation and had access to the information he needed to produce the presentation.  Mr Forde appears to have provided Mr Neale with information and support to produce the presentation while maintaining an expectation that Mr Neale would do the work necessary to undertake the task.  I cannot establish that Mr Forde was withholding information from Mr Neale or that it was not a part of Mr Neale's job to produce such a presentation regarding training and costings.
  1. [148]
    It seems to me that Mr Neale had a particular view about what his role entailed and that this was based in both how he had undertaken the role previously, and his beliefs about what his work tasks should be and how he should undertake those tasks.  Further, Mr Neale appears to be of the view that it is not appropriate for a manager to delegate particular tasks to members of their team. This may be Mr Neale's understanding of how role descriptions work, however, it seems to me that where a role description describes that a manager will 'manage the program and budget', it does not follow that all of the work involved in preparing the program and budget will be undertaken by the manager alone.  It is entirely reasonable for a manager to delegate tasks to team members.
  1. [149]
    There is nothing in the evidence presented by Mr Neale that demonstrates that he was asked to undertake tasks that were beyond what was reasonable to expect of him in his role. Likewise, I cannot identify anything unreasonable about the way tasks were provided to Mr Neale and the supervision of him undertaking those tasks.

Search and Rescue Mission Coordination (SARMAC) accreditation

  1. [150]
    This aspect of Mr Neale's complaint involves his allegation that Mr Forde tried to stop him from getting his SARMAC accreditation.[192]
  1. [151]
    Mr Neale enrolled in a five-day course to be trained in search and rescue accreditation. The course was run by Mr Jim Whitehead from the Queensland Police Service. For personal reasons, Mr Neale was unable to attend the final day of the course and told Mr Whitehead that he would not be present on the Friday.[193]
  1. [152]
    It appears that sometime later, Mr Neale became aware that he had not received an accreditation certificate for the course.[194]  He wrote to Mr Forde on 26 March 2019 enquiring as to what had happened to his accreditation and why he had not received it.[195]
  1. [153]
    Mr Forde's reply to Mr Neale suggested that he may not have received the accreditation because he had not participated in any assessment.[196]  This appeared to be a view formed by Mr Forde on the basis that assessments were completed on the Friday and the fact that Mr Neale was not present on that day.[197]Mr Neale was of the view that Mr Forde was responsible for collecting the assessment books each afternoon and was of the view that Mr Forde had deliberately not picked up his book.[198] The evidence demonstrated that there was no foundation for Mr Neale's contention that Mr Forde had deliberately attempted to stop him from gaining accreditation by meddling with the assessment material.
  1. [154]
    It was unclear to me on the basis of Mr Neale's evidence whether the fifth day was a compulsory component of the course.  However, it is clear that Mr Neale made contact with Mr Whitehead, ended up participating in the subsequent training event Mr Whitehead conducted on a Sunday, that Mr Whitehead (not Mr Forde) was responsible for approving the accreditation and that Mr Neale eventually received an accreditation certificate.[199]
  1. [155]
    I am unable to identify anything unreasonable about the process of Mr Neale needing to follow up on the accreditation.  I am certainly unable to establish that as alleged by Mr Neale, Mr Forde was involved in some kind of activity to stop Mr Neale from becoming accredited.

Meetings of 29 July 2020 and 6 August 2020

Meeting of 29 July 2020

  1. [156]
    Mr Neale gave evidence that he placed a doctor's certificate on Mr Forde's desk and that a couple of hours later, he had a meeting with Mr Forde.  His recollection of this is as follows:

Okay. The 29th of July meeting was the day I put the doctor's certificate on John Ford's desk, and a couple of hours after that John has come out and said, 'Ian, can I see you for a minute,' and he had this manilla folder thing under his arm.  And he said, 'Dave, can I see you as well, as Ian's supervisor,'  And we both got up and we went out and we went to one of the training rooms, and it was at that stage there that John Forde said that, 'Due to your hernia, and it's not work related' – where I said it is work related – that 'we can only offer you three days a week work, and you'll either have to use two days a work of your sick days, or access your QSuper'.  And that was more or less the meeting with no invite what had to address – because something like that you should have to – you'd at least expect to say, 'Okay, I need a support person.  This is – yeah, if you're going to cut me work hours down,' but there was nothing given whatsoever. It was just another one of them meetings – 'Can I see you for a minute'.[200]

  1. [157]
    Mr Swan's evidence was that there 'might have been a meeting'[201] but he was confused about meetings and reports and simply could not recall whether a 'meeting' occurred on 29 July 2020.[202]  Mr Forde could not recall whether the meeting of 29 July 2020 took place[203] and could also not recall when it was first raised with Mr Neale that he would be given three days' work and could take sick leave or access QSuper for the remaining days.[204]
  1. [158]
    Under cross-examination, Mr Forde recalled preliminary discussions about Mr Neale working three or two days and thought that the meeting was to gauge whether Mr Neale was happy with that and that he had agreed and signed off on it.[205] Mr Forde did not think that any of the discussions about the reduction in workdays were of a formal nature.[206]
  1. [159]
    Mr Neale's submissions do not address the alleged meeting of 29 July 2020 in any detail.  I have reviewed the transcripts and exhibits and I accept the Respondent's summary and assessment of the evidence regarding the 29 July 2020 'meeting':
  1. [163]
    The respondent contends that the proper inference to be drawn is that the appellant is mistaken about events of 29 July 2020 resulting in a QFES work capacities form being completed: (exhibit 69).  The appellant subsequently completed exhibit 70, document headed 'Light duties list for Ian Neale – prepared by Ian Neale'.  When Forde was asked who made the decision to only offer the appellant three days work per week, he responded:

'Honestly, I can't recall who actually made the final decision. I believe there was a consultation process based on the list of duties you had available, based on the work capabilities checklist, your medical doctor's certificates, COVID, and what work was available because we couldn't go anywhere, we couldn't do anything, so I can't actually recall who made that final decision.'[207]

  1. [164]
    Accordingly, having regard to Forde's evidence (as stated above) and upon the appellant providing exhibit 70, it is open for the Commission to find that the discussions about reducing the appellant's work days arose at a time after exhibit 70 was received and not 'determined' on 29 July 2020.  The respondent submits it makes no sense that the decision was already made to reduce the appellant's work days prior to receiving what administrative duties the appellant could undertake.  As the evidence demonstrated both the appellant and Sutcliffe were requested to compile a duties list: (exhibit 112). That position is further supported by an email Swan sent to Forde and Michelle Mayes ('Mayes') on 10 August 2020 in which it was stated that the appellant had leave that he could use on Thursday and Friday: (exhibit 115).

9 August 2020 (and 'false accusations regarding the promotion of his business and timesheet concerns')

  1. [160]
    The meeting of 9 August 2020 involved discussion of a number of matters. The issues regarding timesheets and promotion of Mr Neale's business were topics of discussion and the Respondent addresses them in this part of its submissions. This is a convenient approach and I note that Mr Neale has also addressed these matters alongside discussion about the 9 August 2020 meeting in his reply submissions.
  1. [161]
    On 4 August 2020, Mr Forde sent an email to Mr Neale as follows:

I would like to organise a meeting with you this Thursday to discuss the following:

  1. 1.
    Training report and presentation that was due 21st July 2020 at 09.00 (as per wat [sic] you have in our diary)
  1. 2.
    Work plan going forward with your current restrictions as indicated by your doctor's report
  1. 3.
    Timesheets and your normal work day and what is required in your role

I have asked Dave Swan to attend as your direct line manager, your (sic) more than welcome to bring someone along if you require...

I will also see if Michelle is available to assist us with the Work plan from WPHS…[208]

  1. [162]
    Mr Neale's evidence was that based on the email, he thought there was no need to bring a support person.[209] Mr Forde recalled Mr Neale saying that he did not need a support person.[210] I therefore give no weight to Mr Neale's contention that the meeting was held at a particular time of day to stymie his capacity to bring along a support person.[211] I also have no reason to believe that had Mr Neale asked for the meeting to be held at a different time to enable his chosen support person to be present, that this would not have been accommodated.
  1. [163]
    The Respondent summarises Mr Neale's recollection as to how the meeting was conducted:
  1. (a)
    the meeting was held in the training room;
  1. (b)
    there was nothing stopping the appellant from requesting Forde and/or Swan for a five to ten minute break if he wanted one;[212]
  1. (c)
    he sat across the desk from Forde;
  1. (d)
    Forde had the running of the meeting;[213]
  1. (e)
    Forde "'picks up a bit of paper and he reads out some formalities…there's three bundles of paper turn upside down so you can't see them…And he's gone, 'Which one do you want first?'",[214]
  1. (f)
    the appellant said, when Forde read issues out "it's like a bomb has hit you. It's – that's got nothing to do with what we’re here for.",[215]
  1. (g)
    issues were discussed, one of which was the appellant filling out his timesheet incorrectly claiming that he had done a full days work, which however, did not account for the fact that he had undertaken personal business during the course of the day.[216] The appellant  subsequently re-submitted a timesheet reflecting that he had taken time off to do personal business during worktime.[217] The appellant contended QFES had classed as a fraud 'and it's a CaPE 2 offence'[218] and it was the appellant's understanding that the timesheet issue was in fact classified as a CaPE 2 and it was being actioned against him;[219]
  1. (h)
    in respect to how the meeting unfolded, the appellant stated that he was "just getting bottled";[220]it was 'very intimidating'[221] and 'I was bushwhacked in – on that meeting…'[222] and
  1. (i)
    the meeting also discussed the promotion of the appellant's business in worktime, Fisho's Friend[223] which he did not expect to be discussed.[224]
  1. [164]
    Mr Forde recalled that Mr Swan was there to write notes and that Mr Forde had been told to 'just stick to the questions and not deviate'.[225] While Mr Swan had a laptop in the meeting, Mr Forde recalled that Mr Swan had written most of the content of the meeting on paper.[226]
  1. [165]
    Mr Neale contended that Mr Forde had placed three piles of paper (presumably corresponding to the three matters to be discussed at the meeting) on the table and waved his hand over them asking which one Mr Neale wanted to discuss first and so on as they moved through the meeting.  Mr Neale put this to Mr Forde at the hearing and Mr Forde replied, 'No. I would've started with the first one which was on top'.  Mr Forde's evidence was that

[MR FORDE:]…I would've taken the first page off the top and we would've gone with that and I would've followed the introductions which covers the reason for the meeting [indistinct] the change that we identified there was not a support person and then we went straight into the questions.

[MR NEALE:]When we finished with the first agenda, did you then put your hands on this pile and go, "Which one next"?

[MR FORDE:]---No. Because there was only one pile.

[MR NEALE:] Well, I put it to you there was the three piles and that is what you done?

[MR FORDE:]---As far as I can recall there was only the one pile because I had to stick to a set program, for example, I had to [indistinct] the questions as told – as the workplace code of conduct lady suggested, "Just stick to the questions. Just make sure you stay with that and Dave to write the answers."[227]

  1. [166]
    Mr Forde said that he did not say that the timesheet issue was a CaPE 2 offence but said 'I'm not exactly sure of the exact term but mispresenting a timesheet is classed as a form of fraud'.  Mr Forde said that the reference in the meeting to CaPE 2 offence was with regard to use of QFES facilities.[228]
  1. [167]
    Mr Neale said that despite feeling the way he did about the meeting, he did not seek for it to be adjourned.  Mr Neale said he wanted to get it over and done with and move on.[229]
  1. [168]
    The Respondent points to Mr Neale's evidence when cross-examined that he did not feel pressured to answer questions or to provide the necessary answers[230] and was given every opportunity to respond to issues.[231] Despite this, Mr Neale maintained that the meeting was conducted in an intimidating way.[232]
  1. [169]
    Mr Neale accepted that the meeting concluded with Mr Forde asking him if there was anything that could be done to provide training to support him with his work.[233] Mr Neale responded by saying, 'Nope. All good.'[234]
  1. [170]
    Mr Forde's evidence was that there was a statement made in the meeting regarding Mr Neale conducting his own personal business in a QFES facility and that Mr Neale had acknowledged that this occurred.[235] Mr Neale accepted that he worked on his business Fisho's Friend during work time.[236] There was also a discussion which took place regarding Mr Neale's attendance at an elevated work platform course as a paid staff member where a participant opened a book and Mr Neale's business card was in it. Mr Forde asked Mr Neale whether he had been in uniform at the training and Mr Neale replied that he was in his casual clothing.[237] 
  1. [171]
    The matter of Mr Neale undertaking Fisho's Friend work and promoting his business was not part of the email of 4 August 2020 setting out topics to be discussed at the meeting.[238]   Mr Forde was asked why it was discussed at the meeting and he replied:

I think it was only two questions at the end of the meeting in relation to timesheets, your normal work day and what's required in your role. So I think the tie-in there was the fact that your business cards had turned up during work time at an external trainer.[239]

  1. [172]
    The Respondent says that it was not unreasonable for these matters to be raised at the meeting and that if Mr Neale had an issue with the matters being raised, it was open for him to seek to have the meeting stopped or postponed but he did not.[240]
  1. [173]
    Mr Neale said that during the meeting, Mr Forde said to him:

There are times I could take you out the back and sort you out, even though I might lose, and other times I could go down to the pub and have a beer with you.[241]

  1. [174]
    Mr Neale said that this was not the first time Mr Forde had said this to him.  Mr Neale said Mr Forde had used the same phrase 'probably about two months before'.[242] Mr Forde denied he had ever said this to Mr Neale, either at the meeting or sometime prior.[243] Mr Swan could not recall Mr Forde making this comment.[244]
  1. [175]
    Mr Neale was unhappy with a comment Mr Forde had made with regard to Mr Neale's hernia when he said, 'I don't want you walking down the corridor, tripping over, and we have to call an ambulance for you'.[245] The Respondent submits that nothing is wrong with Mr Forde making that comment and that this is particularly the case when Mr Neale had agreed that Mr Forde had asked him during the meeting whether he could fully perform his duties and he accepted he could not.[246]
  1. [176]
    Mr Neale tendered two exhibits which were file notes of the meeting on 6 August 2020.[247]  Mr Neale pointed out that the two documents differed from one another in parts. It became clear that Exhibit 103 was a draft whereas Exhibit 102 which was signed and dated by Mr Forde was the final copy of the file note.  I have reviewed these documents and find that there is nothing unusual or unreasonable about the existence of a draft version of a final file note.
  1. [177]
    Having considered all of the evidence regarding the meeting on 6 August 2020, I find that I agree with the Respondent's summary of the matter and its submissions that nothing about the meeting or the content of the meeting is unreasonable:
  1. [184]
    The Respondent submits that the manner in which the meeting occurred was fair and reasonable. Specific matters were raised with the appellant and he provided the relevant responses.  As to the claim made by the appellant that there were potentially false accusations raised about the promotion of his business, the respondent contends Forde was entitled to put to the appellant his understanding of the facts.  For example, a file note prepared by Forde dated 18 June 2020 records a participant of the course found the appellant's business card in their course book: (exhibit 128). Exhibit 102 records that the appellant was asked whether he placed his business card inside course material promoting his business and his response was – 'No. I gave some business cards out.'  Whether the information which Forde put to the appellant was right or wrong is not the point because the appellant was given every opportunity during the course of the meeting to provide his version of events. Forde was plainly entitled to raise matters with the appellant and in due course, if considered warranted, to take such action as he though appropriate.  The manner in which this topic was dealt with was undertaken in an orthodox manner and there is no warrant to find that it was done in an unreasonable way.
  1. [185]
    Finally, on the issue of the appellant's timesheet, it is somewhat difficult to understand what the appellant's complaint is when he accepts he completed the timesheet incorrectly i.e. not reflecting the fact that he had undertaken personal business during work time and failed to record it on his timesheet. The issue was brought to the appellant's attention; he was then required to complete an accurate timesheet and the manner in which the issue was dealt with in the meeting plainly constitutes reasonable management action taken in a reasonable way.[248]
  1. [178]
    I have no doubt that the meeting would have been uncomfortable and potentially unpleasant for Mr Neale.  However, the nature of formal meetings where there are issues of conduct and work performance being discussed is that they are not ordinarily enjoyable events.  I am unable to identify anything unreasonable about the meeting and I do not accept on the balance of probabilities that Mr Forde conducted the meeting the way alleged by Mr Neale. I am also not persuaded that Mr Forde made the comment alleged by Mr Neale about wanting at times to 'take him out the back'.  I find it more likely that Mr Forde followed the instructions and set questions he had been provided with and worked through the matters in a methodical way.

Mr Neale's hernia condition

  1. [179]
    Mr Neale says that during a rain event at the end of January 2020, he was working as a team leader and along with a team, was tasked with pulling a nine by six metre tarp. Mr Neale says he felt a twinge and initially thought that he had pulled a muscle.
  1. [180]
    On 4 February 2020, Mr Neale was diagnosed with a hernia.  Mr Neale says that a couple of days after being diagnosed, he spoke to Mr Forde and said that he had a hernia and that it was work-related.[249]  Mr Neale recalled Mr Forde saying 'Yep. Righto.'[250]
  1. [181]
    Mr Forde's recollection was that he was in the multi-purpose area at 602 and he noticed that Mr Neale 'wasn't walking too well' and that Mr Forde asked him if he was okay. Mr Forde recalled that Mr Neale said, 'Got a bit of a hernia' and 'Yeah, don't worry about it'.[251]  Mr Forde said that during that conversation, Mr Neale did not inform him as to how he sustained the hernia.
  1. [182]
    Dr Gonzalez recalled that on 4 February 2020, Mr Neale informed him that the condition arose 'after – lifting – heavy lifting at work'.[252]  The notes of the visit to the GP noted, in part, 'patient reported pain and a bulge in the left groin after lifting at work and coughing'.[253]
  1. [183]
    Mr Forde denied that Mr Neale had told him that the hernia was work-related.  Mr Camp said that he became aware of Mr Neale's hernia but said that there was no injury form put in and that Mr Camp had not been informed that it was a work-related injury.[254] Mr Swan said that he thought he had become aware of the hernia at the end of February,[255] but had no idea how Mr Neale had sustained his hernia.[256]
  1. [184]
    Mr Camp sent an email to Ms Mayes on 25 February 2020, stating that in a discussion with Mr Forde, he had been advised that Mr Neale had a hernia.  Mr Camp asked: 'Should we ask Ian to present something from his treating physician about his hernia, including what he can and cannot do and is there anything else we should ask for?'.[257]
  1. [185]
    There was a draft graduated return-to-work plan[258] which was not implemented.  Mr Camp had no explanation as to why this was not implemented.[259]
  1. [186]
    Mr Neale said that when there were deployments going to the flood event in Brisbane, Mr Neale could not go because of his hernia.  Mr Neale said Mr Forde had 'gone and told the regional manager I can't go, come back and said, "I need you to go and see a doctor now to get proper paperwork to say you've got a hernia"'.[260]  Mr Neale said that he provided the report to Mr Forde and said that it was work-related.  Mr Neale recalled that Mr Forde asked when the injury happened and that Mr Neale informed him that it had happened during the last storm event.  Mr Neale says that Mr Forde informed him that it was too late to report the injury.[261]
  1. [187]
    Mr Forde denied that he would have told Mr Neale it was too late to report the hernia as a work-related injury. He said:

because obviously, if somebody's done an injury, whether it be at work or offsite and they come back to the workplace, as part of my role is a duty of care. I've got to ensure that, you know, employees are safe to do their work and they're capable of doing their work.[262]

  1. [188]
    Mr Neale says that when allocated tasks, he would identify if he was not able to do the task due to the weight limit placed on him resulting from his hernia.  Mr Neale says that he continued to tell Mr Forde it was a work-related injury and that Mr Forde continued to say that it was not.
  1. [189]
    Mr Neale says that following his advice to Mr Forde in February 2020 that he had a hernia, there was no paperwork regarding administrative duties or graduated return-to-work plan put in place until the end of July 2020.[263]
  2. [190]
    Mr Neale appeared to be of the view that as soon as he told Mr Forde about the hernia and that it was a work-related injury, Mr Forde should have given him an incident/accident form to fill in.  Mr Neale tendered a blank 'State Emergency Service Incident/Accident Reporting Form'.[264] Mr Neale said he did not fill out the form at the time of the incident and said that he thought it was 'not worth filling out, going through all the paperwork'[265] and accepted that 'if I was reporting it correctly when it happened, this is what I should have filled out'.[266]
  1. [191]
    The evidence appeared to demonstrate that even though Mr Neale was aware of the proper process and the existence of the accident/incident form, when it was not provided to him by Mr Forde, he did not seek to locate it and fill it out for himself.  Mr Neale had no explanation as to why he did not fill in the form and said, 'it probably wasn't on my – on my mind at that time…'.[267]  Mr Neale did not chase up Mr Forde to get the form or locate it himself when he knew it could be accessed through the QFES portal.[268]
  1. [192]
    Mr Neale's evidence was that Mr Forde provided him with a 'Queensland Fire and Emergency Services Work Capacities Checklist' and that this was completed by Mr Neale's GP on 28 February 2020.[269]  The completed checklist indicates a 5-kilogram weight limit for lifting/carrying/pushing and pulling.
  1. [193]
    Mr Neale complains that on 8 April 2020, Forde gave him a task which exceeded the 5-kilogram limit and Mr Neale informed Mr Forde that he could not undertake the task.  Mr Neale's evidence is that he did not do that job and it was not set up.[270]
  1. [194]
    On 3 March 2020, Mr Swan sent an email to Mr Forde setting out the duties he believed Mr Neale could undertake.[271]  After receiving this email, Mr Forde sent an email to Ms Mayes outlining his understanding of the work tasks Mr Neale would be able to do.[272]
  1. [195]
    Mr Forde believed that Mr Neale's surgery for his hernia was going to occur at some time in March 2020 but it appears that this surgery did not go ahead due to interruptions caused by the COVID-19 pandemic and Mr Neale then took leave.[273]
  1. [196]
    On 4 March 2020, Ms Mayes sent an email to Mr Forde and attached a draft graduated return-to-work plan.[274]  The draft plan was supposed to run for a month from 28 February to 28 March 2020, after which time it would be reviewed.  Mr Forde said that he was not involved in drafting that return-to-work plan.[275]
  1. [197]
    The implementation of the draft plan was to be undertaken by Ms Mayes and Mr Swan.  Mr Neale worked from home from March to May 2020 as a result of COVID-19 restrictions and worked at Green Street for one or two days in total during that period and undertook solely administrative tasks.[276]  Mr Neale's evidence was that he undertook no lifting or manual work and that he was at home doing administrative tasks from March to May.[277]  After this time, Mr Neale returned to 602 Ingham Road and undertook administrative tasks and no training or lifting.[278]
  1. [198]
    The Respondent says that in hindsight, it may have been appropriate that the draft graduated return-to-work plan was signed off and formally put into effect. But the Respondent contends that nothing flows from this in circumstances where from March through to May, Mr Neale was working from home and undertaking only administrative duties and that when he returned to the workplace in June, he again performed only administrative tasks.[279] The evidence of Mr Swan and Ms Sutcliffe was that they were aware of Mr Neale's 5-kilogram lifting/weight restriction.[280]
  1. [199]
    The Respondent says that the failure to implement the draft return-to-work plan is at best a 'blemish'[281] as far as Mr Neale's case goes. The Respondent says that an imperfection in management action will not automatically result in characterising the action as management action which is unreasonable.[282]  The Respondent goes on to say that management action need not be perfect[283]and that in determining whether the action in this case was reasonable or not, 'it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account'.[284]
  1. [200]
    I agree with the Respondent that it is not ideal that the draft return-to-work plan was not put into place.  But when considering if it was unreasonable to not formally implement the plan, I must have regard to 'all the circumstances of the case'.[285]  While the plan was not formally implemented, it is clear that there were exceptional circumstances going on at the time, in that Mr Neale was working from home and undertaking exclusively administrative duties from the period of March to May.  When Mr Neale returned to work in June, he continued to undertake administrative duties and his colleagues were aware of his weight/lifting restriction. There is no evidence that Mr Neale was tasked with work that was outside of that his doctor had cleared him for and it appears that on one occasion when he was given a task that exceeded the weight limit, he properly responded that he could not do that task, and it is clear that he was not required to.  In fact, Mr Neale's own evidence was that 'with everything going on there, it did not go through my head either that I should have been on a graduated return-to-work plan back then.'[286]
  1. [201]
    It is clear, as the Respondent points out, that Mr Neale was 'not in any way "adversely" affected by the fact that a formal plan was not in place'.  I am of the view that Mr Neale's views about the implementation of the return-to-work plan are concerns he developed after he left the workplace in August 2020 rather than issues he sought to have addressed without success in the months prior.
  1. [202]
    On 24 July 2020, Mr Forde sent an email to Mr Neale asking that he attend his GP to provide an updated report about his hernia. In that email, Mr Forde raised a concern that Mr Neale's hernia was not getting any better and noted that Mr Neale was struggling even with some of the reduced tasks he was being allocated.  The email said that when the updated report was available, a meeting would be arranged with Ms Mayes to 'work on a plan'.[287]  That same day, Ms Mayes sent an email to Mr Forde in response to Mr Forde's concerns about Mr Neale's welfare resulting from his hernia condition.[288]  Ms Mayes provided a number of recommendations relating to Mr Neale's work capacity and discussed the implementation of a suitable duties plan. 
  1. [203]
    The Respondent says it is important to note that Ms Mayes was proceeding on the basis that Mr Neale's injury was not work-related.  Attached to the email Mr Forde sent to Mr Neale was a document titled 'QFES Injury Management Information Sheet'. This document sets out the process to be followed in relation to both work-related and non-work-related injuries.  Mr Neale said he believed Mr Forde had provided him with that sheet on the basis that his injury was not work-related.[289]  It is clear that there is a disagreement about whether Mr Neale identified at the time that the injury was work-related, however I cannot identify a motive for anyone involved to avoid treating the injury as work-related had it been properly reported as such or had a claim for compensation been submitted.
  1. [204]
    Mr Neale visited his GP on 28 July 2020 and received a new QFES work capacities checklist.[290] The checklist stipulated a 2-kilogram lifting/carrying weight.  Mr Neale said that he placed this document on Mr Forde's desk the following day[291] and that it was after that that he was informed by Mr Forde that there was only enough work for him to do on three days a week (this is also discussed above regarding the 29 July 2020 meeting at [156] to [159]). Mr Neale said he was annoyed by this because they were 'pretty flat out'.[292]  Mr Neale told Mr Swan, 'this is all bullshit'.[293]  However, it is also the case that Mr Neale acknowledged that his hernia condition was not getting any better.
  1. [205]
    Mr Neale said that Mr Forde requested that he and Ms Sutcliffe fill out a light duties list.  Mr Neale said that he wrote a document a couple of days later and thought that he had 'just handed it' to Mr Forde.[294]  That document was headed, 'Light duties list for Ian Neale – proposed by Ian Neale'.[295] Mr Forde said that he requested the document to help with putting together a suitable duties plan and to place times around how long tasks would take.[296] Mr Neale included in that document, 'stocktake of PPC on mezzanine level (some already done) – a few hours with two of us'. 
  1. [206]
    It appears that Mr Neale is characterising the stocktake as a task exceeding the 2-kilogram  limit that had been given to him by Mr Forde and that this was unreasonable.  This makes no sense at all when taking into account that Mr Neale appears to have placed this task on the list himself,[297] and his evidence is that Ms Sutcliffe assisted him by taking down boxes that exceeded 2 kilograms and had told him to let her know when he was finished and that she would come and put them back on the shelves.[298]
  1. [207]
    Exhibit 71 is a graduated return-to-work plan signed by Mr Neale and Mr Swan and dated 10 August 2020. That document notes the weight limit of 2 kilograms. Mr Swan forwarded the plan to Mr Forde and Ms Mayes stating that he had discussed the plan with Mr Neale.[299]  Mr Neale says that he does not recall reading or signing the plan.[300]
  1. [208]
    Mr Neale was unable to identify any other time he was tasked with duties that exceeded the 2-kilogram weight limit.[301]
  1. [209]
    I accept that management proceeded on the basis that the hernia was not work-related and that when considering all of the circumstances surrounding the hernia, and for the reasons I have given above in consideration of the evidence, the actions of management were reasonable.

Bullying and harassment

  1. [210]
    Mr Neale states that he was bullied in the workplace by Mr Forde.[302]  It appears that the behaviours Mr Neale contends constituted bullying are those which have been explored at length in the evidence before the Commission and discussed above. This includes interactions between Mr Forde as manager and Mr Neale as a team member; formal and informal meetings; tasks provided to Mr Neale and feedback provided to him about his work tasks. I have found that these interactions and actions were reasonable and Mr Neale has not provided me with any evidence or specific details which demonstrate that Mr Forde was bullying him.
  1. [211]
    I also note that Mr Neale said that Mr Swan did not bully him,[303] so I will not address any contentions that Mr Swan bullied Mr Neale.
  1. [212]
    Mr Neale also contends that he was discriminated against in the workplace and that Mr Forde and Mr Swan did not treat him fairly and equally.[304] I have considered all of the evidence available to me and I am unable to find that Mr Forde or Mr Swan treated Mr Neale unfairly.  The two may not have been managing the workplace in the way Mr Neale preferred or thought was appropriate, and he may have been unhappy with the tasks allocated to him and the expectations of him, but this does not render the actions of Mr Forde or Mr Swan discriminatory or unfair.

Mr Neale's demeanour

  1. [213]
    Mr Neale asked a number of the witnesses he called whether they could comment on any changes in his demeanour over the time in question or if they were aware that he was having issues in the workplace.  I have considered the evidence of these witnesses and in particular the responses Mr Neale draws attention to from [310] to [320] of his submissions.  It is not in dispute that Mr Neale sustained a psychological injury and that may have resulted in a change to his demeanour over time.  It is also not in dispute that Mr Neale had frustrations and was very dissatisfied with Mr Forde's and Mr Swan's management of him.  I do not find that the evidence of the various witnesses in this regard serves to establish that the actions of management were unreasonable.

Matters outside of the scope of this appeal

  1. [214]
    Mr Neale raised a number of matters and referred to a number of documents that related to the period of time post-30 August 2020.  These matters are outside of the scope of the appeal.  In in his closing submissions, Mr Neale says that he is now aware that these matters are outside of the scope of the appeal but goes on to say 'However, the facts and documents gathered post decompensation…have in no way helped the appellant to overcome his psychological injury. And would warrant further investigation.'[305] This appeal is not the forum for a 'further investigation' of those matters.
  1. [215]
    Likewise, Mr Neale makes a number of requests for me to make findings about breaches of policies and legislation by various QFES personnel and for the Commission to enforce penalties.[306] This appeal against the Regulator's decision regarding his claim for compensation, is certainly not the forum for those matters to be prosecuted by Mr Neale.  Mr Neale asks that:

the Commission take appropriate measures to investigate further, how QFES conducts business and manages workers in the organisation, including how they manage workers with psychological injuries post decompensation. Something needs to be done. Or this will continue to happen. Or people will take their own lives as a consequence of no action.[307] 

  1. [216]
    I understand that Mr Neale has strongly held views about these matters and there may be other appropriate avenues for him to pursue his concerns, however this appeal is not one of those avenues.
  1. [217]
    Mr Neale says that the Commission needs to examine its own process for dealing with psychological injuries, particularly where self-represented people are concerned.  Mr Neale complains that writing final submissions 'heightens anxiety and stress levels' and with regard to writing submissions following the hearing, Mr Neale says, '… Haven't self-represented persons gone through enough torture just to get to the end of the hearing…'.  Mr Neale observes that '… Representing yourself in court is a very hard process in itself. Never let alone then having to do up a final submission. It all adds to ones mental anguish already in overdrive'.[308] I understand that Mr Neale has found the process very challenging.  I note his comments here to ensure that he is aware that I have read them, however, if Mr Neale wishes to propose changes to the appeals process or the procedures of the Commission, there are other avenues he will need to pursue.
  1. [218]
    Mr Neale closes his submissions by thanking the Respondent's representative, Ms Godfrey, 'for her assistance before the trial, during and after'.  Mr Neale also thanks counsel for the Respondent, Mr McLeod KC, and myself for 'their understanding, patience, assistance, and guidance, throughout the trial process. It was all valued and all very much appreciated. Thank you all.' I add to this my own acknowledgement of the spirit of cooperation between the parties and the assistance provided to both Mr Neale and the Commission by the Respondent during the three separate sets of sitting dates for this matter.
  1. [219]
    For the forgoing reasons, I have found that in all of the circumstances and with regard to each of the 'stressors' or 'events' nominated by Mr Neale as causing his injury, the management action taken was reasonable and was taken in a reasonable way.  The claim is not one for acceptance as the injury is excluded by virtue of the operation of s 32(5)(a) of the WCR Act.
  2. [220]
    The appeal is dismissed.

Orders

  1. [221]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent dated 7 October 2020 is confirmed.
  1. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Footnotes

[1]Respondent's closing submissions filed 24 August 2022, [3].

[2]T 7-6, ll 2-5.

[3]T 7-11, ll 1-3.

[4]Yousif v Workers' Compensation Regulator [2017] ICQ 4, [13], [15]; Blackwood v Adams [2015] ICQ 1 [17], [19]; Blackwood v Mahaffey (2016) 259 IR 137, 147.

[5]Respondent's outline of submissions 24 August 2022, [4].

[6]Roberts v Workers' Compensation Regulator [2016] QIRC 30, [48].

[7]T 1-16, ll 17-20.

[8]T 4-4, ll 1-5.

[9]T 4-13, ll 41-43.

[10]T 4-14, ll 4-9.

[11]T 1-16, l 23

[12]T 1-16, ll 27-28.

[13]T 1-17, ll 40-41.

[14]T 1-16, ll 41-42.

[15]T 1-17, ll 11-12; T 1-17, ll 18-19.

[16]T 1-17, ll 25-26.

[17]T 5-122, ll 15-18; T 5-128, ll 31-33; T 5-29.

[18]T 5-122; T 5-123; T 5-126.

[19]T 1-16; T 5-123; T 7-17; T 5-133.

[20]T 7-16.

[21]T 7-18 – T 7-19.

[22]T 7-21, ll 34-42.

[23]T 5-132, ll 45-46.

[24]T 5-134, ll 19-28.

[25]T 5-141, ll 6-10.

[26]T 4-16.

[27]T 1-17; T 5-126.

[28]Appellant's closing submissions filed 27 September 2022, [30].

[29]Exhibit 1.

[30]T 8-26, ll 11-12.

[31]T 8-33, ll 24-38.

[32]T 8-34, ll 38-47; T 8-35, ll 1-8.

[33]T 8-50, ll 17-40.

[34]Exhibit 3.

[35]T 4-15, ll 1-3.

[36]T 11-12, ll 5-24.

[37]Exhibit 6, cl 7.

[38]T 11-10, ll 4-5.

[39]T 11-11, ll 21-23.

[40]T 11-11, ll 22-23.

[41]T 1-21, l 3.

[42]T 4-5, ll 12-16

[43]T 4-5, ll 26-28.

[44]T 5-59.

[45]T 5-59, ll 46-47.

[46]T 5-60, l 23.

[47]T 5-60, ll 30-41.

[48]T 4-5, ll 39-43.

[49]Exhibit 84.

[50]T 4-6, ll 25-27.

[51]T 1-20, ll 27-37.

[52]T 4-7, ll 15-16.

[53]T 4-7, ll 18-23; T 4-7, ll 25-43; T 4-8, ll 1-24; T 4-8, ll 28-47; T 4-9, ll 1-6; T 5-59, ll 1-3.

[54]T 4-9, ll 18-25; T 4-9, ll 13-19; T 4-9, ll 25-37; T 4-9, ll 35-40.

[55]Respondent's closing submissions filed 24 August 2022, [36]; T 4-10, l 20.

[56]Respondent's closing submissions filed 24 August 2022, [36]; T 4-10, ll 38-40.

[57]T 9-5, ll 21-46; T 9-6, ll 1-6.

[58]T 11-8, ll 4-13.

[59]T 1-21, ll 20-21.

[60]Exhibit 4.

[61]T 4-16, ll 3-4.

[62]T 1-21, ll 46-47.

[63]T 1-22, ll 2-3.

[64]T 1-22, ll 6-7.

[65]Respondent's closing submissions filed 24 August 2022, [43].

[66]Appellant's closing submissions filed 27 September 2022, [93].

[67]T 4-15, l 25.

[68]T 1-41, l 19-25; T 8-22, ll 45-46.

[69]T 11-5, ll 33-36.

[70]T 11-5, l 45.

[71]T 11-6, ll 5-6.

[72]T 11-6.

[73]T 11-7.

[74]T 11-7, ll 30-46 – T 11-8, ll 1-2.

[75]Respondent's closing submissions filed 24 August 2022, [49].

[76]Ibid [50].

[77]Appellant's closing submissions filed 27 September 2022, [63]-[92].

[78]Ibid [90].

[79]T 4-108, ll 5-7; T 2-4, ll 24-26.

[80]T 2-4; T 2-5.

[81]Exhibit 45.

[82]T 11-23, ll 15-20.

[83]Respondent's closing submissions filed 24 August 2022, [56].

[84]T 4-101, ll 39-43.

[85]T 4-91, ll 11-13.

[86]T 4-97, ll 1-28.

[87]Respondent's closing submissions filed 24 August 2022, [62]; T 4-97, ll 39-47.

[88]Ibid [62].

[89]T 4-99.

[90]T 4-104, ll 1-4.

[91]T 2-9, ll 30-47; T 2-10, ll 1-2.

[92]Exhibit 46.

[93]T 2-9, ll 46-46.

[94]Exhibit 47.

[95]Respondent's closing submissions filed 24 August 2022, [66].

[96]T 2-18, ll 37-40.

[97]T 2-19, ll 27-34.

[98]T 2-20, l 3.

[99]T 2-20; Respondent's closing submissions filed 24 August 2022, [69].

[100]Exhibit 48; Respondent's closing submissions filed 24 August 2022, [70].

[101]T 4-38, ll 30-42.

[102]T 4-39, ll 30-31.

[103]T 4-40, ll 36-40.

[104]T 4-41, ll 35-37; T 4-42, ll 44-46.

[105]T 4-51, ll 43-44.

[106]T 4-51; Exhibit 23.

[107]T 1-56, ll 7-10; T 1-57, ll 5-12; T 1-58, ll 12-17; Exhibit 24.

[108]T 1-56, ll 42-47; T 1-57, ll 1-3; T 1-57, ll 14-20.

[109]Exhibit 132.

[110]T 9-6, ll 26-46.

[111]T 4-18, ll 21-37.

[112]T 9-7, ll 23-24.

[113]T 4-23, ll 14-15.

[114]T 4-28, ll 20-26; T 4-19, ll 1-4; T 4-20, ll 5-6.

[115]T 4-21, l 45.

[116]T 4-21, l 47.

[117]T 4-22, ll 21-23.

[118]T 4-26, ll 34-37; T 4-25.

[119]T 4-24, ll 40-42.

[120]T 4-25, ll 1-6.

[121]T 9-9, ll 44-45; T 9-10, ll 1-7.

[122]Appellant's closing submissions filed 27 September 2022; T 1-45, ll 25-29.

[123]T 9-8, ll 11-22.

[124]T 4-29, l 19; T 1-45, l 2; T 1-45, ll 15-16; T 4-29, ll 18-19; T 4-29, l 29.

[125]T 9-70.

[126]T 9-9, ll 5-10.

[127]T 9-9, ll 12-17.

[128]T 4-30, ll 32-34; T 4-32, ll 1-2.

[129]Exhibit 14; Exhibit 18.

[130]Exhibit 14.

[131]Exhibit 14.

[132]Exhibit 18.

[133]T 4-33, l 21.

[134]T 4-33, ll 45-47.

[135]T 4-35, l 41; T 4-36.

[136]Exhibit 19.

[137]Exhibit 21.

[138]T 1-49, ll 46-47.

[139]Respondent's closing submissions filed 24 August 2022, [95]; T 1-49, ll 46-47.

[140]Respondent's closing submissions filed 24 August 2022, [96].

[141]T 9-67, ll 1-2.

[142]T 8-80, ll8 -9.

[143]T 8-80, ll 33-35.

[144]T 8-80, ll 40-41.

[145]T 8-81.

[146]T 8-81.

[147]T 8-81, ll 43-47; T 8-82, ll 1-4.

[148]Respondent's closing submissions filed 24 August 2022, [104].

[149]T 5-53, ll 9-10.

[150]T 5-53, ll 12-13.

[151]Respondent's closing submissions filed 24 August 2022, [148] – [150].

[152]T 5-53, ll 25-46.

[153]T 5-54, ll 7-9.

[154]T 5-55, ll 7-17.

[155]T 1-74, ll 6-12; T 2-55, ll 8-9; T 2-55, 32-43.

[156]T 5-33, ll 26-30; T 5-39, ll 20-21.

[157]T 5-37, ll 39-41; T 5-39, ll 8-11.

[158]T 5-41, ll 35-36.

[159]T 5-43.

[160]T 5-43, ll 40-42; T 5-44, ll 9-10.

[161]T 5-43, ll 8-10.

[162]T 5-45, ll 25-29.

[163]T 5-46, ll 36-38; T 5-46, ll 40-47; T 5-47, l 1.

[164]T 5-48.

[165]T 5-50, ll 19-20.

[166]Exhibit 133.

[167]T 11-28, ll 36-37; T 11-29.

[168]T 10-49, ll 15-22.

[169]Exhibit 134.

[170]T 10-50, ll 3-5.

[171]T 10-65, ll 8-10.

[172]Paul Cannon and Michael Thomson.

[173]Exhibit 29.

[174]T 4-60 – T4-65.

[175]Exhibit 32.

[176]T 4-67, ll 32-33.

[177]Exhibit 85; Exhibit 86.

[178]T 4-79; T 4-80; T 4-78, ll 34-45.

[179]Exhibit 41.

[180]T 1-104, ll 23-24.

[181]T 1-105, ll 40-41.

[182]T 4-70.

[183]T 4-74, ll 31-34.

[184]T 4-75, ll 26-29; T 1-94, ll 12-15.

[185]T 4-76, ll 42-43.

[186]Exhibit 36.

[187]Exhibit 37.

[188]T 1-95, ll 17-18.

[189]T 1-95, ll 27-28; T 1-95, ll 43-46.

[190]Exhibit 38.

[191]T 1-101, ll 24-29; T 10-10, ll 7-8.

[192]T 2-34, ll 1-2; T 5-11, ll 16-19.

[193]T 2-31, ll 37-47.

[194]T 2-32, ll 3-5.

[195]Exhibit 52.

[196]Exhibit 52.

[197]T 10-52, ll 38-39.

[198]T 2-34, ll 29-36.

[199]T 2-34, l 40; T 2-38, ll 29-32.

[200]T 2-118, ll 18-30.

[201]T 8-78.

[202]T 8-109.

[203]T 9-32, ll 31-34; T 9-51, ll 20-22; T 9-83, ll 35-40.

[204]T 9-54, ll 28-30.

[205]T 10-60, ll 19-24; T 10-59, ll 39-45.

[206]T 10-64.

[207]T 9-54, ll 41-46.

[208]Exhibit 75.

[209]T 2-119, ll 37-38; T 5-88, ll 33-35.

[210]T 9-60, ll 34-38.

[211]T 2-125, ll 22-27.

[212]T 5-118, ll 45-47.

[213]T 5-88, ll 40-41.

[214]T 2-120, ll 5-8.

[215]T 2-120, ll 9-10.

[216]T 5-90.

[217]T 5-91, ll 31-32.

[218]T 2-120, ll 21; T 2-122; ll 5-6.

[219]T 2-126;T 2-127.

[220]T 2-120, l 40; T 5-94, ll 30-42.

[221]T 2-121, l 30.

[222]T 2-122, l 28.

[223]T 5-89, ll 33-37.

[224]T 2-122, ll 8-21.

[225]T 9-61, ll 4-13.

[226]T 9-61, ll 6-9.

[227]T 9-61, ll 21-38.

[228]T 9-62, ll 4-16.

[229]T 5-95, ll 7-30.

[230]T 5-96, ll 4-15.

[231]T 5-107, ll 24-25.

[232]T 5-107, ll 38-41.

[233]T 5-108, ll 12-13.

[234]T 5-108, ll 15-16.

[235]T 9-62, ll 18-22.

[236]T 5-89, ll 33-45; T 5-107, ll 33-34.

[237]T 9-63.

[238]Exhibit 75.

[239]T 9-64, ll 9-12.

[240]Respondent's closing submissions filed 24 August 2022, [176].

[241]T 2-123, ll 13-15.

[242]T 2-123, ll 35-36.

[243]T 9-61, ll 40-46.

[244]T 8-112, ll 41-43.

[245]T 2-124, ll 40-41.

[246]T 5-100, ll 5-7; Respondent's closing submissions filed 24 August 2022, [181].

[247]Exhibit 102; Exhibit103.

[248]Respondent's closing submissions filed 24 August 2022, [184]-[188].

[249]T 5-63; T 2-85, ll 29-30; T 5-64.

[250]T 2-85, ll 29-30.

[251]T 9-25, ll 7-10.

[252]T  7-3, l 28.

[253]T 7-8, ll 21-22.

[254]T 11-19, ll 22-23.

[255]T 8-73, ll 1-4.

[256]T 8-78, ll 1-2; T 8-78, ll 15-16.

[257]Exhibit 137.

[258]Exhibit 109.

[259]T 11-22, ll 5-6.

[260]T 2-85, ll 32-43.

[261]T 2-85.

[262]T 9-27, ll 2-5.

[263]T 2-86, ll 41-44; T 2-87, ll 1-3.

[264]Exhibit 65.

[265]T 2-87, ll 7-11.

[266]T 2-87, ll 20-21.

[267]T 5-67, ll 34-35.

[268]T 5-68.

[269]Exhibit 66.

[270]Exhibit 67; T 5-70, l 7; T 2-90, ll 44-46; T 2-91, ll 1-2.

[271]Exhibit 114.

[272]Exhibit 114.

[273]T 9-54, ll 7-20.

[274]Exhibit 113.

[275]T 9-56, ll 29-30.

[276]T 5-81, ll 29.

[277]T 5-81, ll 31-37.

[278]T 5-81, ll 39-47; T 5-82, ll 1-3.

[279]T 5-87, ll 9-12.

[280]T 8-77, ll 34-46; T 6-33, ll 16-22.

[281]McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 13, [37]; Qantas Airways Limited v Q-COMP [2006] QIRComm 27.

[282]State of Queensland (Department of Agriculture and Fisheries v Workers' Compensation Regulator [2020] QIRC 97, [25]-[27].

[283]Bowers v Q-COMP [2002] QIC 8.

[284]Prizeman v Q-COMP [2005] QIC 53.

[285]WorkCover Queensland v Kehl [2002] QIC 23.

[286]T 2-93, ll 22-24.

[287]Exhibit 68.

[288]Exhibit 110.

[289]T 2-94, ll 40-42.

[290]Exhibit 69.

[291]T 2-96, T 2-97.

[292]T 5-79, l 12

[293]T 5-80, ll 1-7.

[294]T 2-99; T 2-102, l 40.

[295]Exhibit 70.

[296]T 9-28, ll 6-10.

[297]T 2-102, ll 10-14.

[298]T 2-98, ll 26-34.

[299]Exhibit 116.

[300]T 5-78.

[301]T 2-107, ll 3-6.

[302]T 5-119, ll 1-9.

[303]T 5-119 ll 11-15.

[304]T 5-119.

[305]Appellant's closing submissions filed 27 September 2022, [327].

[306]Ibid [336].

[307]Ibid [330].

[308]Ibid [338].

Close

Editorial Notes

  • Published Case Name:

    Neale v Workers' Compensation Regulator

  • Shortened Case Name:

    Neale v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 9

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    16 Jan 2023

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
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Blackwood v Mahaffey (2016) 259 IR 137
2 citations
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Cite 1 - (2016) 259 IR 137
Cite 2 - (2016) 259 IR 137
Bowers v Q-COMP [2002] QIC 8
2 citations
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Cite 1 - [2002] QIC 8
Cite 2 - [2002] QIC 8
McMah v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 13
2 citations
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Cite 1 - [2014] QIRC 13
Cite 2 - [2014] QIRC 13
Prizeman v Q-Comp 180 QGIG (2005) QIC 53
2 citations
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Cite 1 - (2005) QIC 53
Cite 2 - (2005) QIC 53
Qantas Airways Limited v Q-COMP [2006] QIR Comm 27
2 citations
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Cite 1 - [2006] QIR Comm 27
Cite 2 - [2006] QIR Comm 27
Roberts v Workers' Compensation Regulator [2016] QIRC 30
2 citations
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Cite 1 - [2016] QIRC 30
Cite 2 - [2016] QIRC 30
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
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Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
WorkCover Queensland v Kehl [2002] QIC 23
2 citations
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Cite 1 - [2002] QIC 23
Cite 2 - [2002] QIC 23
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Neale v Workers' Compensation Regulator [2023] ICQ 1724 citations
1

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