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Kerr v Workers' Compensation Regulator[2025] QIRC 190

Kerr v Workers' Compensation Regulator[2025] QIRC 190

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kerr v Workers' Compensation Regulator [2025] QIRC 190

PARTIES:

Kerr, Laniia

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/107

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

25 July 2025

HEARING DATE:

5 September 2022

6 September 2022

7 September 2022

8 September 2022

9 September 2022

14 February 2023

15 February 2023

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

  1. The appeal is dismissed;
  1. The Appellant is to pay the Respondent’s costs of the hearing in an amount agreed by the parties or, failing agreement, such amount ordered by the Commission. 

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychological or psychiatric injury – where appellant employed as a Store Person for a retail company – where appellant nominated fifteen stressors – where regulator conceded appellant was a worker who suffered an injury and her employment was the significant contributing factor to the injury – whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way – where each of the stressors considered – where management action found to be reasonable and taken in a reasonable way - where the injury found to arise out of or in the course of reasonable management action taken in a reasonable way – appeal dismissed.

LEGISLATION:

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

CASES:

Allwood v Workers Compensation Regulator [2017] QIRC 88.

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland [2002] QIC 18

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

Davis v Blackwood [2014] ICQ 9, 47.

Delaney v Q-COMP Review Unit [2005] QIC 11

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010.

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

Q-COMP v Craig John Hohn [2008] QIC 56

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

APPEARANCES:

L. Kerr, the Appellant

S. Sapsford of Counsel, instructed by A. Schultz of the Workers' Compensation Regulator

Reasons for Decision

 Background to Appeal

  1. [1]
    On 15 December 2020, the Appellant, Ms Laniia Kerr applied for compensation for psychiatric injury. The injury was described in a workers’ compensation medical certificate from Dr Stephanie Clapham accompanying the claim as ‘mental distress'.[1] The medical certificate states that the injury occurred on 10 December 2020 after Ms Kerr was allegedly reprimanded in a public setting. 
  1. [2]
    Ms Kerr’s application for compensation dated 15 December 2020 nominates the date of injury as 10 December 2020. The mechanism of injury is described as follows:

Manager (Tim) handed me allegations letter and revealed private sensitive information in the middle of the workplace in front of many people after specifically being asked not to do so in July 2020.

  1. [3]
    On 15 January 2021, WorkCover Queensland provided Ms Kerr its decision to reject her application for compensation. Mr Kerr applied to have this decision reviewed.
  1. [4]
    On 19 July 2021, the Workers' Compensation Regulator ('the Regulator') provided a decision to Ms Kerr confirming the earlier decision which rejected her application for compensation ('the decision').
  1. [5]
    Ms Kerr's grounds of appeal contend that the Regulator did not allow submissions that are key to her case and also did not give enough consideration and weight to medical reports or to the facts of her case.
  1. [6]
    The Regulator conceded the elements of s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the WCR Act’). The Regulator contends that Ms Kerr’s claim is excluded by the operation of s 32(5) of the WCR Act in that the injury sustained by Ms Kerr has arisen out of management action which was, at all times, reasonable and taken in a reasonable way.

The WCR Act and the relevant legal principles

  1. [7]
    The appeal is by way of a hearing de novo.[2] In the ordinary course of such appeals, an appellant will bear the onus of establishing, on the balance of probabilities, that they have suffered an injury within the meaning of the WCR Act.[3] The concession of the Regulator has simplified the task in this case, leaving only consideration of the questions of whether Ms Kerr’s injury arose from management action and whether that management action was reasonable and reasonably undertaken.
  1. [8]
    More particularly, on the question of reasonableness of the management action, it is Ms Kerr who has the onus of demonstrating that management action was unreasonable or taken in an unreasonable way.
  1. [9]
    Despite the concessions of the Regulator, before determining this appeal the Commission should still identify the relevant elements of the WCR Act to be satisfied.

‘Injury’

  1. [10]
    Section 32 of the WCR Act relevantly provides:

32 Meaning of injury

  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. …
  1. Injury includes the following—
  1. 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. 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. a personal injury;
  1. a disease;
  1. a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
  1. loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. 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. death from a disease mentioned in paragraph(a), if the employment is a significant contributing factor to the disease;
  1. death from an aggravation mentioned in paragraph(b), if the employment is a significant contributing factor to the aggravation.
  1. 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. 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. reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. the worker's expectation or perception of reasonable management action being taken against the worker;
  1. 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

(Emphasis added)

  1. [11]
    Section 32(5) of the WCR Act only operates to remove a psychological disorder from the definition of 'injury' where reasonable management action is taken in a reasonable way.[4]

Management action

  1. [12]
    The examples contained in s 32 of the WCR Act aid its interpretation. These are discussed later in these reasons. 
  1. [13]
    In Allwood v Workers Compensation Regulator[5] it was observed:

The exclusory action in s32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the Appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment. Therefore, the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the Appellant's employment.[6]

  1. [14]
    The nature of the stressors in this matter and their characterisation as management action is discussed later in these reasons.

‘Reasonable’ Management Action

  1. [15]
    In Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey, (‘Mahaffey’)(then) President Martin concluded:[7]

In Davis v Blackwood I said:

“I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury”. In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.”

In Blackwood v Adams I agreed with what Hall P had said in Hochen, namely, that an enquiry as to whether or not unreasonable management action was the dominant cause of an injury was an erroneous approach.

The history of the consideration given to s 32 (and its predecessor) is consistent with application of the principle cited in Bird v The Commonwealth, namely, “where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred”. The construction favoured by this Court has been that a worker can suffer a compensable injury even if reasonable management action has had some causative effect.

Where the only cause of a personal injury is reasonable management action etc. then s 32(5) will work to exclude it from the definition of “injury” in s 32(1). The difficulty, as has become painfully obvious over the years, is where a psychiatric or psychological disorder can be seen to have arisen from a mixture of actions including reasonable management action. Experience in this jurisdiction shows that it is not uncommon for psychiatric disorders to be the result of a number of factors.

(Emphasis added)

  1. [16]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[8] the relevant principles in respect of the application of s 32(5)(a) of the WCR Act were summarised, namely:

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

• that there was reasonable management action; and

• that it was taken in a reasonable way; and

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

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

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

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

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

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

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

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

(Emphasis added) (Citations omitted)

Questions for determination in the appeal

  1. [17]
    The Regulator has made generous concessions with respect to the elements of the definition of ‘injury’.[9] They were helpful concessions made at a point on the second day of proceedings where Ms Kerr had failed to produce medical evidence as expected. I accept the concessions.
  1. [18]
    In those circumstances it is open for me to find that Ms Kerr is a ‘worker’ within the meaning of the WCR Act and that she has suffered a (psychological) personal injury that has arisen out of or in the course of her employment, and that her employment has been a significant contributing factor.[10]
  1. [19]
    Further, having regard to the identified stressors and the discussion earlier in these reasons, there is no question that each of the stressors arises out of ‘management action’.
  1. [20]
    Having regard to the case presented by Ms Kerr, the singular issue for my determination is whether Ms Kerr's injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[11]

Witnesses and medical evidence

Lay witnesses

  1. [21]
    Evidence was given by a total of 4 witnesses in the proceedings over a period of 7 days.
  1. [22]
    Despite filing a witness list comprising names of 10 witnesses on 10 March 2022, the Appellant ultimately did not call evidence from anyone, other than herself.
  1. [23]
    The Regulator called evidence from the following witnesses:
  • Mr Tim Windisch, the Fulfillment Centre Manager ('Mr Windisch');
  • Ms Melinda Pinchien, People and Culture Business Partner ('Ms Pinchien'); and
  • Ms Sarah Brewer, the Operations Supervisor ('Ms Brewer').

Medical witnesses

  1. [24]
    Ms Kerr had previously named both her general practitioner and a psychologist as witnesses in her case. On the morning of the second day of the hearing, Ms Kerr advised the Commission and the Regulator that neither of her witnesses were available. Ms Kerr was cautioned as to the peril her appeal was in given no medical evidence could be produced.[12]
  1. [25]
    The matter was stood down briefly (twice) while Ms Kerr tried to secure alternative medical evidence. At one point Ms Kerr proposed to secure evidence from a psychiatrist but was going to require the matter to be part-heard so that she could get a referral from her general practitioner.[13]
  1. [26]
    Despite growing uncertainty as to when (or if) alternative medical evidence could be produced (and what it might be) the Regulator revised their position and quite astutely conceded the elements of ‘personal injury’ and ‘significant contributing factor’ for the purposes of s 32(1) of the WCR Act. In making those concessions the matters now in issue in this appeal were reduced to a consideration of the stressors within the context of s 32(5) of the WCR Act.[14] 
  1. [27]
    While this concession meant Ms Kerr was no longer required to present medical evidence, the Commission still requires independent evidence of personal injury to fully consider an appeal. That evidence was received by the Commission (with consent of the parties) within the contents of Exhibit 1 which was comprised of a collation of documents relied on by both parties. This included inter alia a workers’ compensation medical certificate authored by Dr Stephanie Clapham, dated 15 December 2020.[15]
  1. [28]
    The medical certificate of Dr Clapham serves in these proceedings as evidence of a personal injury (described as ‘mental distress’). It is trite to note that a broad concession as to the existence of a personal injury does not give the Commission the advantage of a more detailed insight in the way that can be achieved from viva voce evidence from a medical expert as to the type of contribution (if any) each individual nominated stressor might have had on any diagnosis. While this might place the Commission at a disadvantage in some appeals, the reasons that follow demonstrate no such disadvantage in this appeal.   

The Stressors

  1. [29]
    Ms Kerr's Statement of Facts and Contentions (‘SOFC’) identifies fifteen stressors. The SOFC is somewhat disordered, and the stressors identified individually occasionally contain what are better characterised as two independent stressors. Where this occurs, they will be identified as part (a) and (b) of the individual stressor.
  1. [30]
    The stressors are identified and summarised as follows:[16]
NumberDateTitle Description

1(a)

12 December 2019

Emergency Contact

Management uses emergency contact in unreasonable way

1(b)

13 December 2019

Occupational therapist (‘OT’) visits warehouse

OT ‘misled’ by management in order picking demonstration.

2

16 December 2019 – June 2020

Return to work plan

Various examples given where management is unsupportive of return-to-work plan.

3

February 2020

Safety meeting

Management uses bullying tactics to exclude appellant from safety meeting.

4

8 May 2020

20kg lift

Management stated unreasonable work expectation to OT. Appellant felt overwhelmed and felt it was an act of retaliation by management. 

5

11 June 2020

Mr Windisch email regarding working on ladders.

Management acting in bad faith. Management lied about apparent agreed exemption from working on ladders.

6

1 July 2020

Appellant approached in aisle and reprimanded.

Management action humiliating, belittling and bullying.

7

July 2020

Near miss report

Management acting in bad faith by fabricating a conversation implying appellant did not follow proper procedure.

8

17 July 2020

Bullying language

Management ‘name calling’ by describing appellant’s early departure from work as ‘dramatic’.

9

20 July 2020

Appellant approached in studio returns by manager

Management action humiliating, belittling and bullying due to tone used to reprimand appellant. 

10

29 October 2020

Email to Managing Director regarding knife incident

Management bullied appellant when dismissing her concerns regarding the unsafe behaviour of a co-worker.  

11

20 November 2020

Friday BBQ and work meeting

Management bullied appellant with an unjustified criticism and complaint about ‘a small thing’.

12

1 December 2020

Allegations meeting

Management called appellant to a meeting to discuss allegations, denying her procedural fairness. 

13

10 December 2020

Support person issue

Management denies procedural fairness by declining to provide information about a complaint

14

10 December 2020

Allegation letter

Management acts in bad faith by providing appellant with the allegations letter in a manner that was not private or confidential. 

15

10 December 2020

CCTV of incident

Management action when providing appellant with allegations letter was humiliating and embarrassing. 

Consideration

  1. [31]
    It is not disputed that Ms Kerr was a worker within the meaning of the WCR Act and that she has sustained a personal injury within the meaning of the term used in s 32(1) of the WCR Act. It is also not in dispute that, subject to the operation of s 32(5) of the WCR Act, the personal injury arose out of or in the course of Ms Kerr’s employment and that the employment was not only a significant contributing factor but, in the absence of evidence of other contributing factors, it was the only contributing factor.
  1. [32]
    The singular focus of the consideration in these circumstances is whether the injury arose out of or in the course of ‘management action’ and, if so, whether that management action was reasonable and taken in a reasonable way.

Management action

  1. [33]
    Each of the stressors identified by Ms Kerr nominates the actions of various managers as having caused her distress. In that sense, they are prima faci within the realm of management action. Having regard to the examples of ‘management action’ contained in s 32(5) of the WCR Act, it is clear that action taken to e.g. discipline a worker, is contemplated.
  1. [34]
    The examples contained at s 32(5) of the WCR Act are not exhaustive. Having regard to the examples and the types of action contemplated the notion of management ‘action’ ought to be read broadly. In my view this would certainly include a casual or informal admonishment directed at a worker by a manager or supervisor, especially where it is perceived or portrayed by the worker as being causative of some relevant harm to them. Management action would equally extend to formal performance management and the formal communication of a corrective or remedial direction to an employee.
  1. [35]
    Given the complexities of interpersonal interaction in workplaces, the possibilities are innumerable. In Ms Kerr’s appeal, the stressors emerge in the context of three distinct settings. They either relate to her managers' management of her rehabilitation program, her dissatisfaction with the manner in which her managers have dealt with her complaints or reports, or to interactions with her managers on matters pertaining to her performance or conduct.
  1. [36]
    With respect to these categories, and noting His Honour’s comments in Allwood v Workers Compensation Regulator,[17] it is clear that these are not everyday tasks but instead, relate to specific management action directed to Ms Kerr’s employment itself e.g. the management of her post-injury rehabilitation to full capacity.[18] Again, the alleged improper actions of individual managers in the context of, or incidental to, this task are well within the contemplation of the notion of management action contained within the WCR Act.
  1. [37]
    Further, stressors related to comments or actions designed to correct her behaviour or counsel her about conduct in the workplace falls plainly within the WCR Act’s contemplation of management action. This would also include the alleged improper actions of certain managers carrying out or attempting to carry out these functions.
    1. [38]
      I am satisfied that each of Ms Kerr’s identified stressors arise out of, or in the course of, management action. 

    Reasonable management action taken in a reasonable way – overview of evidence

    1. [39]
      In order to evaluate the reasonableness (or otherwise) of the various management actions that give rise to each stressor, the facts and circumstances of each stressor must be examined. In this appeal this exercise has required the Commission to hear evidence in respect of each of the fifteen stressors nominated by Ms Kerr, including her evidence, and the evidence of the relevant managers.
    1. [40]
      In order to succeed with her appeal, Ms Kerr needed to satisfy the Commission to the requisite standard of proof that the management action giving rise to her stressors was unreasonable or taken in an unreasonable way. It is not necessary for her to succeed in this task in respect of every stressor. Given that the Regulator has broadly conceded the personal injury and the significant contribution of employment, it could be such that it could be sufficient for Ms Kerr to prove her injury arose in respect of a single stressor.[19]
    1. [41]
      As already noted in these reasons, Ms Kerr was the only witness called. It therefore fell to Ms Kerr, through her testimony, to persuade me that the management action giving rise to the stressors was unreasonable or taken in an unreasonable way. 
    1. [42]
      In addition to the testimony of Ms Kerr, I have had the benefit of numerous documents that were created (mostly) contemporaneous with relevant events. There was also clear and unambiguous CCTV footage capturing the relevant interaction between Ms Kerr and Mr Windisch on 10 December 2020.
    1. [43]
      In respect of each stressor the witnesses called by the Regulator have either contradicted the factual assertions of Ms Kerr or placed them into a context that, if accepted, renders the management action reasonable. Additionally, the documentary and CCTV evidence consistently and roundly refutes Ms Kerr’s asserted ‘facts’ in respect of the stressors to which those items of evidence relate.  
    1. [44]
      Some general observations regarding the credit of witnesses is appropriate before specific consideration of the nominated stressors and the accompanying evidence.

    Witnesses for the Regulator

    1. [45]
      On the whole, the testimony of Mr Windisch, Ms Pinchien and Ms Brewer impressed me as credible and reliable. There were often matters which they could not confidently answer because they were unable to remember events with precision. This is unsurprising given that many of the relevant events occurred between December 2019 and December 2020 i.e. some 2 – 3 years before they gave evidence.
    2. [46]
      On the whole, I was satisfied that where each of these witnesses were unable to recall specific details, their evidence was genuinely given and was not evasive. Indeed, their lack of recall and their candour about that reflected positively on their credit.
    1. [47]
      In every other respect, the evidence of the Regulator's witnesses impressed me as credible, reliable, and without embellishment. Moreover, the facts established from their evidence filled significant gaps in the factual scenarios being asserted by Ms Kerr.

    Evidence of Ms Kerr

    1. [48]
      By contrast, Ms Kerr's evidence was replete with misdescription and, at times, outright fiction. Her consistently selective presentation of certain facts, while omitting facts unhelpful to her narrative, leads me to conclude that the misleading nature of the selective facts she asserted throughout her SOFC was not merely a shortcoming attributable to her lack of representation.
    1. [49]
      It is relevant to note that I observed Ms Kerr over the course of the seven hearing days to consistently present as an individual who was (almost pathologically) without capacity to accept any facts inconsistent with her own subjective narrative. Further, Ms Kerr also demonstrated an acute sensitivity to even the mildest criticism or suggestion of wrongdoing. She would sometimes passive-aggressively apologise to the Commission when directed to e.g. refrain from pursuing unfair or irrelevant questions but would then continue to press the very questions she had been asked to cease.
    1. [50]
      Ms Kerr’s reaction to suggestions of errors or failings on her part was quite consistently an almost obsessive pursuit of a retraction, correction, or some positive affirmation.  This trait was most obvious during Ms Kerr’s cross examination of witnesses where her questions often focused not on matters relevant to her claim, but unduly (and repeatedly) on soliciting positive affirmations about her character or work ethic. 
    1. [51]
      Examples of these features of Ms Kerr’s evidence will be discussed at relevant junctures throughout the remainder of these reasons.
    1. [52]
      In the circumstances, the evidence of the witnesses called by the Regulator was invariably preferred over that of Ms Kerr wherever differences arose.

    The stressors

    1. [53]
      Ms Kerr nominated a total of fifteen stressors in her list of stressors, some of which contained two parts. To maintain consistency, I will refer to each stressor by reference to the numerical number and heading ascribed by Ms Kerr in her SOFC.
    1. [54]
      Further, throughout the proceedings, Ms Kerr routinely strayed from her nominated stressors and from time to time alluded to other alleged events and management conduct in a manner that suggested she considered it relevant to her claim. In her SOFC, Ms Kerr said that she was 'too affected' to document all stressors and that 'many more' remain undocumented.[20]
    1. [55]
      Whenever necessary Ms Kerr was reminded that she was bound by the stressors nominated in her SOFC.[21] These reasons will be restricted to consideration of the nominated stressors only. 

    Stressor 1(a) – Use of emergency contact number

    1. [56]
      Like most employers, Surfstitch retained personal information about its employees, including contact details for e.g. next of kin in the event of an emergency.
    1. [57]
      Ms Kerr complains that in December 2019, Ms Brewer used Ms Kerr’s ‘next of kin’ information improperly.
    1. [58]
      It is not disputed that Ms Brewer used Ms Kerr's emergency contact details in December 2019 in an attempt to speak with Ms Kerr. Ms Kerr was not rostered to work on the day in question. Ms Brewer (and Mr Windisch) were trying to contact Ms Kerr to coordinate a meeting with an Occupational Therapist ('OT') the following day. The need to contact Ms Kerr was entirely a feature of managing her workplace rehabilitation following a shoulder injury Ms Kerr sustained in October 2019.
    1. [59]
      It was said by Ms Brewer and Mr Windisch (which evidence is accepted) that there was some degree of urgency to confirm Ms Kerr’s availability to consult with the OT the next day as the OT had limited capacity for further appointments due to impending leave.[22]
    1. [60]
      Mr Windisch gave evidence that he was feeling under pressure to coordinate a meeting (on site) between Ms Kerr and the OT. Mr Windisch indicated he wanted to prioritise the meeting because he was keen to have Ms Kerr recover her physical capacity.[23]
    1. [61]
      Attempts to reach Ms Kerr on her mobile number had been unsuccessful. Mr Windisch instructed Ms Brewer to call Ms Kerr's emergency contact (her mother) in an effort to locate and speak with Ms Kerr.[24]
    1. [62]
      Ms Kerr found this intrusive and contends that when she addressed this with Mr Windisch and Ms Brewer, they were dismissive of her, and that Mr Windisch was defensive and spoke harshly to her.[25] Ms Kerr contends that after this she felt the behaviour and attitude of Mr Windisch and Ms Brewer shift negatively toward her and the bullying began.[26]
    1. [63]
      Apart from the suggestion that the phone call was something of an improper intrusion, it was not clear from Ms Kerr's evidence how this intrusion, of itself, was a stressor (significant or otherwise).  There was no evidence from Ms Kerr that the call itself caused any actual distress for her or her mother (aside from a vague and uncorroborated suggestion her mother was told Ms Kerr ‘could not be found’).[27]
    1. [64]
      It seems that the more significant aspect of this stressor for Ms Kerr was the reaction of Mr Windisch and Ms Brewer when Ms Kerr subsequently raised the use of her emergency contact details as an issue with them. In her evidence she described their alleged dismissive tones as ‘upsetting’.[28]  Further, it was not readily apparent exactly when Ms Kerr had this discussion with Mr Windisch or Ms Brewer, or how it came to again be the subject of discussion with Ms Pinchien approximately six months later.[29]
    1. [65]
      Following a meeting with Ms Pinchien in or about May 2020 (where a number of matters were discussed), Ms Pinchien acknowledged the use of the emergency number should be restricted to emergencies.
    1. [66]
      I am satisfied that the use of Ms Kerr’s emergency contact details to find her in these circumstances was management action. I accept Ms Kerr’s subjective assertion that she found the use of the emergency contact details intrusive. However, I do not consider the use of Ms Kerr’s emergency contact details to be unreasonable management action or to have been taken in an unreasonable way.
    1. [67]
      The use of Ms Kerr’s emergency contact details in these circumstances was plainly an attempt to seek a practical solution to an increasingly urgent need to locate Ms Kerr. It arose out of a necessity to work around the limited availability of the OT and, no doubt, out of a desire to prioritise Ms Kerr’s rehabilitation.
    1. [68]
      Further, to the extent that Ms Kerr alleges Mr Windisch and Ms Brewer were 'dismissive' of her complaints I (firstly) do not consider that these assertions were ever properly put to them in cross examination. To the extent they might have been (but were indiscernible), I accept that Mr Windisch and Ms Brewer were not unreasonable in their general responses on this stressor given that, at the relevant time, they were legitimately trying to arrange an important meeting for Ms Kerr.
    1. [69]
      While the use of the emergency contact in these circumstances might have subsequently been the subject of some corrective direction by Ms Pinchien, I do not consider that of itself makes the actions of Mr Windisch and Ms Brewer unreasonable.  Given the nature and purpose of the call to Ms Kerr’s emergency contact, I think it reasonable to have used the contact. 
    1. [70]
      I am satisfied that the actions of Ms Brewer and Mr Windisch in using Ms Kerr’s emergency contact details were management action in relation to Ms Kerr. I accept Ms Kerr’s contention that these actions contributed in some way to her injury.
    1. [71]
      Reasonable management action does not require the action to be perfect.[30] Some degree of blemish can be tolerated and, in this instance, even if I am incorrect in my conclusion about the reasonableness of the actions, I consider the actions of Mr Windisch and Ms Brewer to be, at worst, a mere blemish.
    1. [72]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 1(b) - OT first visit to warehouse

    1. [73]
      On 13 December 2019, an OT attended the warehouse where Ms Kerr worked. Ms Kerr and Ms Brewer accompanied the OT to locations where tasks performed by order pickers were discussed and demonstrated so that the OT could make assessments and recommendations.
    1. [74]
      Ms Kerr contends in her SOFC that Ms Brewer demonstrated one of the tasks performed by Ms Kerr incorrectly, in a way that Ms Kerr describes as ‘misleading’. Ms Kerr says she politely corrected Ms Brewer but that thereafter she 'felt' Ms Brewer's 'negativity' towards her. Ms Kerr asserts that the incorrect demonstration of the task by Ms Brewer 'significantly' disadvantaged her and that the alleged misleading conduct of Ms Brewer was done in bad faith and was bullying.
    1. [75]
      Ms Brewer had previously worked as a picker and was familiar with the role. Ms Brewer gave evidence to the effect that she was seeking to demonstrate picking duties to the OT as they were required to be performed, in accordance with her knowledge of the picking rules and techniques. This included different techniques for pickers of different stature.[31]
    1. [76]
      Under cross examination Ms Brewer acknowledged that she had performed a picking demonstration for the OT that was performed in accordance with the techniques for her stature. Ms Kerr put to her that this was misleading because that was not the technique she would use, as she was of smaller stature. Ms Brewer rejected this noting she was asked to give an example of ‘how we pick at the warehouse’. The demonstration was not specific to Ms Kerr.[32]
    1. [77]
      Despite her assertions, Ms Kerr was entirely unable to demonstrate if or how the OT was misled by Ms Brewer or at all. Further, Ms Kerr's own SOFC confirms that immediately after Ms Brewer’s demonstration she 'politely corrected' her in the presence of the OT which would have eliminated any alleged ‘disadvantage’ even if one could be said to have arisen.[33]
    1. [78]
      It is impossible to conclude in those circumstances that the OT could have been misled. Further, Ms Kerr was unable to demonstrate how Ms Brewer subsequently displayed any negativity as alleged or at all. It was put to Ms Brewer that she was ‘not happy’ when Ms Kerr corrected her in front of the OT.[34] Such a proposition, in the absence of any other asserted facts, rests entirely within Ms Kerrs perceptions of Ms Brewer’s alleged ‘negativity’ towards her. Ms Brewer rejected the proposition in any event.
    1. [79]
      I am satisfied that the actions of Ms Brewer in engaging with the OT were management action in relation to Ms Kerr. I accept Ms Kerr’s contention that these actions, or at least her perception of them, contributed to her injury.
    1. [80]
      Ms Brewer has denied any of the conduct alleged by Ms Kerr. I consider Ms Brewer to be an honest and credible witness on this point. I accept that, to the extent she can recall the incident, there was nothing insidious about the way she demonstrated the task in question, and that there was certainly no intention to mislead the OT or cause harm to Ms Kerr. 
    1. [81]
      The actions of Ms Brewer were reasonable and were reasonably taken in every respect.
    1. [82]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 2 – Issues with return-to-work plan

    1. [83]
      Between December 2019 and June 2020 Ms Kerr participated in a return-to-work plan ('RTWP'). Ms Kerr describes a myriad of problems experienced during this period with varying managers including Mr Windisch, Ms Brewer and Ms Pinchien.
    1. [84]
      Central to Ms Kerr’s evidence before the Commission on this stressor was a concern she had about being required to open parcels in what was known as the 'returns' area. Ms Kerr contends she found this difficult with her shoulder injury and in her SOFC, she says that her OT instructed her not to do it. Ms Kerr contends that when she asked for help from managers or supervisors she was 'mocked' or just handed a pair of scissors and told to do it herself.[35] 
    1. [85]
      Ms Kerr says that she reported difficulties with her RTWP tasks, but she received 'pushback' and at one time alleges that Ms Brewer told her that it was 'detrimental to the company' to help her. Ms Kerr subsequently complained to Ms Pinchien about bullying language and being asked to perform tasks outside the limitations of her RTWP.
    1. [86]
      Ms Kerr's evidence in respect of this stressor was, at times, nebulous. There was documentary evidence to contradict Ms Kerr's assertion that the OT had instructed her not to open parcels.[36]  Ms Kerr's evidence of the alleged 'mocking' and belittling language was imprecise, vague, and unconvincing.[37]
    1. [87]
      The one aspect of this stressor that Ms Kerr was most clear about was her allegation that Ms Brewer had said that helping Ms Kerr was ‘detrimental to the company’. This assertion was a prominent feature of Ms Kerr's evidence and one that she appeared to be quite affected by.
    1. [88]
      Ms Pinchien investigated this allegation but found no witnesses to confirm it.[38] Ms Brewer firmly denied using that language or saying anything of that nature to Ms Kerr.[39]
    1. [89]
      On this issue I am satisfied that it is more probable than not that Ms Brewer did not use those words. In my observation, both from her filed material and her presentation during the proceedings, Ms Kerr is prone to misinterpret the words and actions of others and moreover, has a propensity to misinterpret innocuous comments as an attack on her character or integrity. I am satisfied that, at best for Ms Kerr’s case, she has misheard or misinterpreted some comments of Ms Brewer and has reconstructed them into her own narrative. Given I do not accept that Ms Brewer used those words, or anything like them, I do not need to consider whether they amount to management action.
    1. [90]
      More broadly, there is no evidence to support Ms Kerr's broader assertions about the difficulties with her RTWP. The use of scissors was at the suggestion of the OT who did not instruct Ms Kerr not to open parcels but rather, instructed her on better ergonomics associated with the task.[40]
    1. [91]
      On the whole, I accept the evidence of Mr Windisch and Ms Pinchien regarding their efforts to make accommodations for Ms Kerr in her efforts to return to full duties. Both witnesses impressed me as having a clear and genuine understanding of what was required and the importance of not placing an employee in a work environment where they were at risk of injury or re-injury.
    1. [92]
      I find there is no evidence to support the broad allegations made by Ms Kerr to form Stressor 2. Further, to the extent there is evidence of incidents and events related to Ms Kerr’s RTWP, there is no evidence that would allow me to conclude that there was unreasonable management action nor reasonable action taken in an unreasonable way. 
    1. [93]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 2 – OT second visit to warehouse

    1. [94]
      Ms Kerr contends that the OT instructed Mr Windisch to give Ms Kerr more variety in her work. Ms Kerr contends that Mr Windisch 'pushed back' and told her returns was busy and that was where she would be working. Ms Kerr contends that management bullied her by not providing suitable tasks within the parameters of her RTWP thereby creating a risk to her health and safety.
    1. [95]
      Ms Kerr was unable to clearly particularise this stressor in her evidence. Her evidence was vague and unimpressive.[41] Further, there was little to no cross examination of Mr Windisch about this by Ms Kerr.
    1. [96]
      By contrast, while not directly connected to this stressor, Mr Windisch (and Ms Pinchien and Ms Brewer) gave a great deal of evidence throughout their cross examination about the company's attitude to rehabilitation of injured workers broadly, but also about their efforts and approach to the rehabilitation of Ms Kerr. Further, the documentary evidence tendered in these proceedings by consent demonstrates the degree of attention given to planning and implementing a viable RTWP for Ms Kerr.[42]
    1. [97]
      This stressor was vague (at best) and has not been factually established on the evidence. To the extent that there is a dispute as to the adequacy or otherwise of the approach taken by management to Ms Kerr's rehabilitation from October 2019 until December 2020 I am satisfied from the evidence of Mr Windisch, Ms Pinchien, and Ms Brewer that all proper steps were taken to responsibly and reasonably manage Ms Kerr's return to work. 
    1. [98]
      I accept that the implementation of the RTWP was management action. I find there is no evidence of any management action with respect to Ms Kerr's rehabilitation that was unreasonable or taken in an unreasonable way.
    1. [99]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 3 – February 2020 – Appellant asks to attend February safety meeting

    1. [100]
      In her SOFC Ms Kerr particularises this stressor in a manner that is misleading. The stressor reads as if Ms Kerr's request to attend a safety meeting has been refused.[43] The SOFC lists two attempts by Ms Kerr to secure attendance at the meeting that were ‘rejected’ by Ms Pinchien. The relevant portion of the SOFC then states 'I felt excluded' prominently, in its own paragraph of the particulars. As it happens, Ms Kerr was not excluded at all.
    1. [101]
      In broad terms, the full facts relevant to this stressor are: the employer’s regular safety meeting in February 2020 was scheduled for a day on which Ms Kerr was not rostered to work. Relevantly, this was during a period when Ms Kerr was on her RTWP. Ms Kerr wanted to attend the meeting and sought to have the entire meeting rescheduled to a date that would coincide with a day when she was rostered to be at work.[44]
    1. [102]
      There were multiple other attendees scheduled to attend the meeting, most of whom were regular attendees.[45] Unsurprisingly, the company was not able to justify disrupting the schedule of the numerous other attendees just to suit the convenience of Ms Kerr.   
    1. [103]
      Ms Kerr asserts that she then offered to attend the meeting in her own time on a voluntary basis or to use time in lieu. She asserts that her suggestions were 'rejected' by Ms Pinchien.
    1. [104]
      Ms Kerr further asserts that Ms Pinchien required her to provide a medical certificate stating that she was fit to attend the meeting and that she must work a 4-hour shift. The particulars contained in Ms Kerr’s SOFC conclude with a contention that the management request of a medical certificate was a 'bullying tactic' leaving Ms Kerr feeling bullied and excluded.  
    1. [105]
      Like many of her nominated stressors, the written particulars relied on by Ms Kerr in her SOFC presented ‘facts’ in a highly selective and incomplete way. 
    1. [106]
      Nothing about the particulars of this stressor or the initial evidence in chief of Ms Kerr would give an uninformed reader the impression that she actually attended the safety meeting. Indeed, in leading evidence in chief from Ms Kerr, the Commission was itself misled and would have continued to be if not for the interjection of Counsel for the Regulator.[46] It was only after this interjection that Ms Kerr was forced to disclose that she had, in fact, attended the safety meeting notwithstanding her pleadings focused on ‘rejections’ and feeling ‘excluded’.
    1. [107]
      Upon hearing evidence from Ms Pinchien and the full facts surrounding the stressor it became immediately apparent that Ms Kerr had been neither excluded nor bullied. Ms Pinchien explained that in February 2020, Ms Kerr was still subject to work restrictions, including her hours of work. Ms Pinchien was not opposed to Ms Kerr attending the safety meeting but needed to have Ms Kerr provide a medical certificate because the additional attendance at the meeting was outside Ms Kerr's OT approved work pattern.[47]
    1. [108]
      Not only was the requirement for the provision of a medical certificate not bullying or unreasonable, but it was a reasonable request in the context of the employer's workplace health and safety obligations, made in a reasonable way. It was also a request that was entirely in the interest of protecting Ms Kerr’s health. 
    1. [109]
      I accept Ms Pinchien’s conduct in declining to reschedule the meeting and requesting the medical certificate was management action. On the full facts of this stressor being made know to the Commission it is clear that the management action was reasonable and was reasonably taken in every respect.
    1. [110]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 4 – 8 May 2020 – email requiring 20kg lift 

    1. [111]
      Upon hearing evidence and reviewing the exhibits, the factual particulars of this stressor set out in Ms Kerr’s SOFC were (again) revealed to be significantly incomplete. In her SOFC, Ms Kerr asserts that prior to her injury she was required to lift a maximum of 15kgs to shoulder height. Ms Kerr further asserts that Ms Pinchien emailed the supervising OT (as if at random) saying that 'to return to full duties she will need to lift 20kg up to her shoulder height'.[48]
    1. [112]
      Ms Kerr asserts that she had never heard of such a limit being formally required. Ms Kerr contends she felt pressured to commit to lifting this weight to keep her job and that she felt that Ms Pinchien was acting out of retaliation. Ms Kerr contended that requiring an employee to lift 20kg in those circumstances was a risk to health and safety and that she was being singled out by management with the imposition of this weight limit.
    1. [113]
      In an increasingly familiar pattern in Ms Kerr's evidence, when the full facts were revealed, they (significantly) altered the effect of the limited facts particularised in her SOFC. 
    1. [114]
      The documents in evidence establish that the email from Ms Pinchien where she refers to the 20kg lifting limit is, in its full context, a culmination of a chain of emails between Ms Pinchien, an OT supervising Ms Kerr's return to work, and Ms Kerr. In essence, the email chain covers an enquiry from the OT about maximum lifting limits. This then reveals some uncertainty (for all concerned) and ultimately leads to Ms Pinchien having regard to a 'Job Dictionary'.[49] The Job Dictionary is a Surfstitch resource containing a detailed job description.[50]
    1. [115]
      Having regard to the full chain of emails it is clear that Ms Pinchien is not seeking to describe a rigid lifting regime. Ms Pinchien's emails (which all cc’d Ms Kerr) describe various weights by reference to the activity i.e., over shoulder lifting etc., and give a clear impression that 15kgs is not out of the question but also talks of aiming for ‘best practice' of 10kg clothing tubs/lifts.[51]
    1. [116]
      In her final email of the chain, Ms Pinchien identifies that the Job Dictionary requires a person performing the role of store person to be able to lift weights ‘up to a maximum’ of 20kgs. Ms Pinchien, in response to a suggested suitable duties plan, confirms that 20kgs is the weight that Ms Kerr will be required to lift ‘when she returns to full duties'.[52]
    1. [117]
      In the context of the full discussion set out in the emails it is clear that Ms Pinchien's comment is made to assist the OT to set parameters for Ms Kerr's recovery. Ms Pinchien is not imposing a contrived lifting limit as Ms Kerr appears to allege, she is merely reciting the contents of the Job Dictionary in an effort to fully inform the OT of the general standard expected of otherwise fit employees. It is communicated solely for the purpose of assisting to manage Ms Kerr's recovery.
    1. [118]
      Ms Kerr's experience pre-shoulder injury may well have been that she was not required to lift weights greater than 15kgs. That would be entirely consistent with Ms Pinchien's comments to the OT about 'best practice' of keeping tubs to 10kgs. But the Job Dictionary clearly sets a limit of 20kgs. It seems that Ms Kerr first learned this when she saw Ms Pinchien’s email and has conflated that with Ms Pinchien arbitrarily imposing a ‘new’ lifting limit on her.
    1. [119]
      Ms Kerr also alluded (from the bar table) that the version of the Job Dictionary in evidence had been altered, and that she had an earlier version with the 15kg limit only. Ms Kerr was unable to produce this when asked and has not produced it since.
    1. [120]
      I have no doubt Ms Kerr’s experience of lifts up to 15kgs in the workplace may have caused her to reasonably (but erroneously) believe that she was not required to lift up to 20kgs, but she was entirely unable to produce any evidence of any express or written instructions about lifting limits to contradict the Job Dictionary.
    1. [121]
      But in any event, there is no evidence that Ms Kerr was ever instructed to lift 20kgs while recovering from her injury or at all. The statement in the email by Ms Pinchien refers only to the requirement contained in the Job Dictionary of a person performing the role in a 'full duties' capacity. It seems clear that even when Ms Kerr was functioning at full capacity, lifts in excess of 15kgs were unusual and unlikely.
    1. [122]
      Ms Kerr's perception of the email of Ms Pinchien is that it concocts a condition of employment that has not previously existed, allegedly in a deliberate effort to set a standard that Ms Kerr could not meet and therefore, precipitate the loss of her employment.  Such an interpretation is not only patently unavailable on the facts, but it is fanciful in the face of the plain evidence contained in the emails.
    1. [123]
      The email from Ms Pinchien to the OT (and Ms Kerr) was management action. Nothing about the email of Ms Pinchien dated 8 May 2020 was unreasonable or done in an unreasonable way.
    1. [124]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 5 – 11 June 2020 – Email sent by Mr Windisch

    1. [125]
      To the extent that it can be clearly understood, Ms Kerr particularises this stressor by alleging that Mr Windisch and Ms Pinchien confirmed with her at some time prior to 11 June 2020 that it is 'fine' for her to ‘stay on the ground’ when picking and lifting i.e. she is not required to use ladders.
    1. [126]
      Ms Kerr then says that, in a subsequent email from Mr Windisch on 11 June 2020 addressed to a WorkCover Queensland claims manager and an OT (and also Ms Pinchien and Ms Kerr), Mr Windisch lied about 'having a chat' with Ms Kerr and he 'denies' there is an arrangement where Ms Kerr can stay on the ground.
    1. [127]
      Ms Kerr contends that Mr Windisch has acted in bad faith by ‘lying’ about a conversation that he did not have with her. She further contends that Ms Pinchien bullied her by not correcting Mr Windisch's misrepresentation.
    1. [128]
      The enormous difficulty for Ms Kerr in respect of this stressor is that the email of 11 June 2020 is in evidence before the Commission.[53] While the language used by Mr Windisch is a little 'clunky' it is by no means ambiguous. The email reads:

    Hi All,

    Just confirming I had a chat with Laniia, the role does require ladder work and overhead lifting. However, we have had the discussion that we are happy to work with Niia where possible if she doesn't full (sic) get back to 100% as it can be hard for us to replicate a full day of lifting on ladders or overhead lift as every day picking is different.

    (Underlining added)

    1. [129]
      As I have noted previously, Ms Kerr has a significant propensity to misinterpret comments of her managers. This in turn leads her to misrepresent the words or actions of her managers when particularising them. The content of the email of 11 June 2020 (set out above) when contrasted with the particulars of Stressor 5 are a clear example of this.
    1. [130]
      It was not controversial from the evidence of Ms Kerr, Mr Windisch and Ms Pinchien that at some time prior to 11 June 2020 they held a discussion in the context of Ms Kerr's capacity for certain tasks. It is not controversial that as a consequence of that discussion, Mr Windisch and Ms Pinchien agreed that Ms Kerr was not required to use ladders.
    1. [131]
      The email of 11 June 2020 confirms that discussion and, while noting that the role does require use of ladders, Mr Windisch goes on to confirm in the next sentence that the company is prepared 'to work with Ms Kerr' where possible if she does not return to full capacity. While the language used by Mr Windisch is somewhat awkward, the plainly appreciable tenor of his email is one of support for Ms Kerr.  
    1. [132]
      It is difficult to see how Ms Kerr could misinterpret the email, though having observed her significantly distorted perceptions over the course of the hearing it is unsurprising. Her perception of the content of the email is entirely at odds with the facts plainly evident from the email itself.
    1. [133]
      Quite apart from concluding that the email is entirely reasonable management action, I also conclude that the factual basis for the stressor as alleged by Ms Kerr cannot be made out on the evidence.
    1. [134]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 6 – 1 July 2020 – Appellant approached in the aisle area by Mr Windisch

    1. [135]
      Ms Kerr sets out particulars for this stressor in her SOFC. She states that she was performing the dual tasks of picking orders and transferring stock. ‘Picking orders’ means removing stock or boxes of stock from shelves to be assembled and delivered in fulfilment of an order from a retailer. ‘Transferring’ involves the task of shifting stock or boxes of stock to optimise storage of stock on the shelves. Relevantly, Ms Kerr initially described the dual performance of these tasks in a manner that gives no hint of the concession she would subsequently make in her evidence to the effect that she was performing one of these tasks contrary to direction from her employer.
    1. [136]
      Ms Kerr asserts that, as she was performing this combination of tasks, Mr Windisch approached her and (while visibly angry) reprimanded her for having a laptop and a scanner at the same time. Ms Kerr reinforced this when giving her evidence and, when pressed by the Commission to explain why the simultaneous use of two devices might be an issue, Ms Kerr simply responded that ‘Mr Windisch does not like that…’.[54]
    1. [137]
      Ms Kerr gave elusive evidence to the effect that she had never previously taken both a laptop and scanner with her in this way and did not initially acknowledge any contravention of any direction.[55] But she eventually conceded that she was performing a task that she was not directed to perform ‘at that time’.[56]
    1. [138]
      Ms Kerr contends that Mr Windisch's conduct and tone in reprimanding her in the aisle was humiliating, belittling, and bullying. Having regard to the full facts surrounding this stressor it is (yet again) apparent that Ms Kerr has grossly misrepresented the incident and omitted significant facts.
    1. [139]
      The evidence in chief from Mr Windisch was that he noticed Ms Kerr while he was walking through the warehouse. At the time, he was aware that the staff remaining on the premises were required to be engaged only in 'picking' tasks, which requires only the use of a scanner.  Ms Kerr came to his attention because he observed her working with both a scanner and a laptop (the latter being required only for the task of ‘transferring’).[57]
    1. [140]
      Mr Windisch made a contemporaneous record of the incident that he recorded in an email to People and Culture at Surfstitch and Ms Brewer.[58] Mr Windisch’s note records that he approached Ms Kerr to ascertain what she was doing and, when it was established that she was performing both picking and transferring tasks (in a manner contrary to a set practice), Mr Windisch directed her to stop transferring and return to picking. 
    1. [141]
      The particulars of this stressor entirely omit any acknowledgement from Ms Kerr that Mr Windisch happened upon her performing a task that she had not been directed to perform at that time, and which would inevitably detract from the performance of the task she was supposed to be performing. After having had the benefit of Mr Windisch’s evidence in cross examination, Ms Kerr eventually admits that she was performing work off her directed task.[59] Ms Kerr's conduct was entirely worthy of Mr Windisch’s intervention in the circumstances.
    1. [142]
      As to the suggestion that the manner or tone of the reprimand was in any way inappropriate, Ms Kerr’s cross examination was absent any direct contention that Mr Windisch was aggressive, angry or otherwise inappropriate. Indeed, Ms Kerr’s cross examination appeared focused on extracting concessions from Mr Windisch that she was a reasonable person and obeyed his direction to cease the additional task.[60]
    1. [143]
      The closest Ms Kerr got to putting any relevant question about Mr Windisch’s demeanour to him was when she asked him if he recalled his demeanour to which he replied he did not. Ms Kerr then put it to Mr Windisch that he was upset. Mr Windisch did not accept that, and said he approached her because he was curious.[61]
    2. [144]
      Given Ms Kerr’s demonstrated propensity for embellishment and misrepresentation, I prefer the evidence of Mr Windisch to that of Ms Kerr on this point.
    1. [145]
      The direction given by Mr Windisch was plainly management action. I can find nothing unreasonable in his intervention on 1 July 2020, nor do I find anything unreasonable in the manner it was delivered to her.
    1. [146]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 7 – July 2020 – Mr Windisch writes near miss report about Appellant

    1. [147]
      On or about 15 July 2020, Ms Kerr reported an incident regarding falling shoe boxes. It was a practice in the workplace that such matters could be brought to the attention of a manager for the purposes of managing risk. Mr Windisch duly completed a 'near miss' report.[62]
    1. [148]
      It is common ground that Mr Windisch completed the report in the absence of Ms Kerr. Ms Kerr was subsequently informed by a colleague a day or so later as to the contents of the report and did not agree with part of the entry made by Mr Windisch, namely, a portion in which Mr Windisch records that he suggested Ms Kerr use a different method of picking (to the one she described using) to reduce risk.
    1. [149]
      In the particulars of this stressor set out in her SOFC, Ms Kerr describes the offending entry as 'a paragraph describing in great detail a discussion with Mr Windisch I did not have'. Ms Kerr contends that it is unreasonable management action in that the entry records what she describes as a ‘fabricated’ conversation.[63]
    1. [150]
      Mr Windisch gave evidence that he was largely unable to recall the exchange between them where Ms Kerr reported the near miss. He recognised the near miss report and accepted that he was the author. He was unable to recall the precise details of the conversation he had with Ms Kerr but was confident that if he had recorded that conversation in the report, then it would have occurred.[64]
    1. [151]
      I prefer the evidence of Mr Windisch over that of Ms Kerr. Ms Kerr has repeatedly shown herself to be an inaccurate historian who tends to assert facts in an entirely self-serving fashion while failing or refusing to acknowledge unhelpful facts or anything even vaguely critical of her. Mr Windisch on the other hand was measured and plausible in his evidence, including his concession that he was unable to recall the conversation recorded in the near miss report.
    1. [152]
      Additionally, there is another email dated 20 July 2020 that relates to a second ‘near miss’ incident only days later. That email contains a reference by Mr Windisch to his conversation with Ms Kerr as a result of the earlier near miss on 15 July 2020.[65] This email is a second contemporaneous note by Mr Windisch of the conversation he had with Ms Kerr about picking technique. 
    1. [153]
      In the circumstances, given the near miss report was created relatively contemporaneous with the events, I consider it more probable than not that Mr Windisch has accurately recorded a conversation he had with Ms Kerr.
    1. [154]
      The preparation of the ‘near miss’ report was management action. I consider that not only was Mr Windisch's conduct reasonable in every respect, but the allegation of ‘fabrication’ made by Ms Kerr is not made out.
    1. [155]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 8 – 17 July 2020 – Appellant leaves work early

    1. [156]
      Stressor 8 is related to Stressor 7. On 17 July 2020, Ms Kerr learned of the content of the near miss report when discussing a similar incident with another supervisor. In the particulars contained in the SOFC, Ms Kerr says she was feeling overwhelmed and distressed at the thought that unsafe conditions were being 'swept under the carpet'.
    1. [157]
      Ms Kerr says that she advised Ms Brewer that she was leaving early. Ms Kerr contends that Ms Brewer subsequently described Ms Kerr's early departure as 'dramatic'. Ms Kerr contends that this is unreasonable management action in that it is 'name calling'.
    1. [158]
      The incident involving Ms Kerr's departure was recorded in an email authored by Mr Windisch to ‘People and Culture’ dated 20 July 2020.[66] The email relevantly says:

      …On Friday 17th July Beau called me to advise that he had reported another near miss for the same incident with Laniia, I explained to Beau that something similar had happened on the 15th July and I had advised Laniia to try a different approach when picking shoes and asked if you could please have another conversation with her demonstrating a much safer approach to the way she was picking shoes. Beau demonstrated how to move the shoes and how to pick with a ladder. Laniia then left on Friday afternoon saying that she had had enough of this place.

    (Emphasis added)

    1. [159]
      When cross examined about this email Mr Windisch was again not especially clear on his recall. I accept this was genuine given the time that has elapsed. Ms Kerr was at pains to establish that the words in Mr Windisch's email were not a literal record of what she said. It was clear they were not. They were, it seems, simply an attempt by Mr Windisch to capture what he understood the sentiment of Ms Kerr's demeanour when she left that day as described in the email of Ms Brewer dated 17 July 2020.[67] Mr Windisch was not directly informed by Ms Kerr of her departure. Mr Windisch likely arrived at this impression having regard to the email authored by Ms Brewer on 17 July 2020.
    1. [160]
      Ms Brewer authored an email to ‘Warehouse Absentees’ on 17 July 2020 that relevantly reads:[68]

    Laniia is heading home at 12. She didn’t say why she just said she was done and was going home.

    1. [161]
      Ms Brewer gave evidence under cross examination that Ms Kerr did not appear to sound distressed when she announced her departure on 17 July 2020. However, given her previous dealings with Ms Kerr when acting as the Safety Officer, she understood Ms Kerr’s early departure to be an indication that she had reached her ‘mental limit’. She said that she did not include any reference to mental health issues in her email for privacy reasons.[69]
    1. [162]
      Despite contending in her SOFC that Ms Brewer described Ms Kerr’s departure on 17 July 2020 as ‘dramatic’, Ms Kerr never disclosed how or when Ms Brewer allegedly did this. Further, Ms Kerr never put this allegation to Ms Brewer.[70]
    1. [163]
      Despite the total absence of evidence that Ms Brewer overtly or expressly used the term ‘dramatic’, it is plainly evident that Mr Windisch perceived that Ms Kerr’s early departure was precipitated by something akin to frustration or mental exhaustion hence his description that she had ‘had enough of the place’. I have no doubt this interpretation arises from the language used by Ms Brewer where, far from simply reporting Ms Kerr’s early departure, she includes the words “She didn’t say why…”.  In my view, this conveys the departure as unusual to an astute reader, and Mr Windisch accurately decoded it.   
    1. [164]
      Despite the somewhat furtive nature of the message authored by Ms Brewer, it was neither inaccurate nor unreasonable. It is important to note that this event occurred at a point in the relevant chronology whereby Ms Kerr’s workplace difficulties (both physical and mental) were expanding. By 17 July 2020, Ms Brewer was familiar enough with Ms Kerr’s situation that it was enough for Ms Kerr to simply stand at Ms Brewer’s door well ahead of her rostered departure time, and announce she was ‘done for the day’. Ms Brewer gave evidence that she immediately (and accurately) interpreted that as Ms Kerr having reached her mental limit.[71]
    1. [165]
      In a rather subtle but accurate manner, Ms Brewer managed to convey this in her email of 17 July 2020 without overtly referencing mental health. Mr Windisch, who was also well familiar by now with Ms Kerr’s difficulties, simply displayed his understanding of this message (in his own words) in his email of 20 July 2020. But neither of them, nor anyone other than Ms Kerr, ever described her departure on 17 July 2020 as ‘dramatic’.
    1. [166]
      In fact, the term ‘dramatic’ is only contemporaneously documented once in reference to this incident. In an email to Mr Windisch on 20 July 2020, Ms Kerr says:[72]

    …I clarified with Sarah regarding the couple of hours personal leave on Friday was mental health time out. I actually said “I’m done for the day, heading home, it’s 12 o’clock now.” Very calmly, not at all dramatic. … The email that went out put the wrong slant on it.

    (Emphasis added)

    1. [167]
      Mr Windisch replies to this email on 21 July 2020 relevantly saying:

    Sorry I never said it was dramatic?

    1. [168]
      In giving evidence before the Commission, Ms Kerr eventually disclosed that the source of her information forming the basis of the ‘dramatic’ allegation is a third party. Moreover, it seems the account relied on by Ms Kerr to found this allegation is the hearsay description of events allegedly shared with her by this person. When asked about the use of the term ‘dramatic’ Ms Kerr states:[73]

    I was given that information from a – another supervisor…and I did not hear it myself…but I heard from a supervisor, they said “Oh, you left early. They said you left in a dramatic way. You were being dramatic.”

    1. [169]
      Despite indicating that she was calling this third person to give evidence, Ms Kerr did not produce them.
    1. [170]
      In all of those circumstances the factual basis of the stressor cannot be made out. To the extent Mr Windisch has attempted to describe Ms Kerr's conduct at the relevant time and to the extent his description is not a precise facsimile of the language used, I accept that his email still accurately captures the sentiment of Ms Kerr’s departure that day.
    1. [171]
      Further, Ms Brewer’s email is in no way unfair or unreasonable in its matter-of-fact description of the incident. Both Mr Windisch and Ms Brewer have used uncontroversial and reasonable language to record an ‘overwhelmed and frustrated’ Ms Kerr’s unscheduled early departure during her rostered hours. This accuracy, despite the subtlety, is important for e.g. documenting the progress of Ms Kerr’s condition and how it impacts her work.
    2. [172]
      For completeness I note the vast contradiction in the way in which Ms Kerr describes her demeanour in the email to Mr Windisch on 20 July 2020. She describes her departure on 17 July 2020 as “Very calmly, not at all dramatic” compared to what she put to Ms Brewer during cross examination “..do you recall me specifically telling you that I was feeling extremely stressed in the workplace?” and “…do you remember me being distressed?”.[74] This contradiction is a pointed example of the self-serving, unreliable nature of Ms Kerr’s account of events that has been pervasive in these proceedings.
    1. [173]
      The emails of Mr Windisch and Ms Brewer are management action. I consider that the management action in this instance was reasonable in every sense. To the extent that Mr Windisch’s email attributes language not used by Ms Kerr, I have explained earlier in these reasons why I regard this as uncontroversial. If I am wrong in my characterisation a of his language, I consider it is a blemish at worst and does not render the management action unreasonable or unreasonably taken. 
    1. [174]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 9 – 20 July 2020 – Appellant approached in Studio Returns area by Mr Windisch

    1. [175]
      In the first part of this stressor Ms Kerr asserts that Mr Windisch approached her in the workplace and that he was 'agitated' and 'talking in a raised voice' about the near miss report, 'reprimanding' her and 'insisting she had not followed safety procedure'. Ms Kerr contends that Mr Windisch's actions and tone when reprimanding her in the open warehouse was humiliating, belittling, and bullying.[75]
    1. [176]
      While Ms Kerr was giving evidence about this incident, she alluded to a contemporaneous note she had made after the alleged incident. The note had not been disclosed. Ms Kerr was asked to produce the note which she did instantaneously.[76]
    1. [177]
      Incredibly, Ms Kerr's own contemporaneous note of the incident bears no resemblance to the 'facts' she now asserts.  Instead, it records a far more innocuous discussion (initiated by Ms Kerr) after having emailed Mr Windisch to ask that he speak with her about the 'near miss report'.[77]
    1. [178]
      Nowhere in Ms Kerr's contemporaneous note is there any reference to, or even a hint of, Mr Windisch using an inappropriate tone. And contrary to Ms Kerr's complaint of having been reprimanded, the note expressly contains a passage where Ms Kerr has recorded confirmation that she was told she will not be reprimanded.
    1. [179]
      In addition to this contemporaneous note, there are contemporaneous emails that shade this interaction with Mr Windisch in a very different hue. 
    1. [180]
      Ms Kerr sent an email to Mr Windisch and Ms Pinchien on 20 July 2020.[78] The relevant portion of that email is the opening line referring to her discussion with Mr Windisch on 20 July 2020 which reads:

    Thanks for the discussion around Friday’s near miss and the other near miss report.  

    1. [181]
      It is impossible to reconcile any part of Ms Kerr's own contemporaneous record with the account of events she now asserts. It is not clear from the transcript that Ms Kerr ever put to Mr Windisch that he was agitated or speaking in a raised voice on 20 July 2020.
    1. [182]
      While Mr Windisch was largely unable to remember much in the way of detail about his discussion with Ms Kerr on 20 July 2020, nothing about his evidence concedes any of the allegations now asserted by Ms Kerr. Ms Kerr’s cross examination on this point was confusing and disjointed and ultimately, it revealed that she appears to conflate the fact that she found the conversation with Mr Windisch distressing, into a perception that Mr Windisch distressed her.[79]
    2. [183]
      In the circumstances, I find that the factual basis for this stressor is not made out. To the extent it is necessary to do so, I find that Mr Windisch discussed the near misses with Ms Kerr (at her invitation) but that there is no evidence to support a conclusion that he was agitated and speaking in a raised voice as alleged. Given the total absence of any hint of a reference to improper conduct by Mr Windisch in Ms Kerr’s contemporaneous note or her email of 20 July 2020, I consider that Mr Windisch’s conduct was in all probability reasonable. 
    1. [184]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act. 

    Stressor 10 – 29 October 2020 – email to Managing Director re knife incident

    1. [185]
      Ms Kerr contends that she held concerns about the conduct of a co-worker named ‘Ziggie’. She contends that her concerns were being dismissed and that she was being pressured to keep quiet. She contends that this amounts to bullying.
    1. [186]
      In her SOFC Ms Kerr complains that the response of Mr Windisch and Ms Pinchien to her numerous complaints was inadequate to the point of amounting to bullying. She asserts that Mr Windisch told her to ‘shut up’ about Ziggie and that she ‘just had to work with him’.[80]
    1. [187]
      In a familiar trend with Ms Kerr’s SOFC and evidence, the evidence of Mr Windisch and Ms Pinchien and the exhibits relevant to this stressor paint a very different picture of what actually occurred.
    1. [188]
      The context of the stressor is best illustrated by having regard to the history of complaints made by Ms Kerr about Ziggie. Exhibit 4 in the proceedings is an email chain that begins with an email dated 22 October 2020 from Ms Kerr to Ms Pinchien. The email catalogues a series of grievances Ms Kerr has with Ziggie and her dissatisfaction with how those matters have been addressed. Ms Kerr variously describes Ziggie in that email as aggressive, dangerous, unsafe, and a ‘hothead’.
    1. [189]
      On 28 October 2020, Ms Pinchien replies. The reply email contains measured, thorough, and reasonable responses to Ms Kerr’s catalogue of complaints. It is not necessary for these reasons to descend into the minutia of Ms Kerr’s history of complaints about Ziggie. What can be gleaned from the email from Ms Pinchien is that Ms Kerr first complained about Ziggie in July of 2020. The complaint related to conduct alleged to have occurred 13 months prior. Mr Windisch investigated the complaint, and it appears Ms Kerr was not content with the outcome. A mediation was therefore convened between Ms Kerr and Ziggie in September 2020 which apparently concluded with an agreement to work safely and respectfully with each other, and to avoid gossip about each other with workmates.
    1. [190]
      Ms Kerr was not satisfied with the outcome and wanted a formal investigation which was refused. From then on it appears Ms Kerr remained of the view that Ziggie was ‘getting away’ with bad behaviour.
    1. [191]
      Ms Pinchien’s email is measured and balanced. It carefully addresses each of Ms Kerr’s concerns. It is anything but dismissive. Ultimately, the email concludes that no action is necessary in relation to the allegations that Ms Kerr continues to press. Further, Ms Pinchien appropriately cautions Ms Kerr to carefully consider her actions going forward and to abide by the agreement said to have been reached at mediation. It also confirms that Ms Kerr will be accommodated to work as far away from Ziggie as possible.
    1. [192]
      The following day on 29 October 2020, Ms Kerr forwarded the email from Ms Pinchien to Mr Justin Hillberg, the Managing Director of Surfstitch. Ms Kerr’s email to Mr Hillberg seeks a discussion and generally complains that Ms Pinchien’s response is inaccurate and infers things that did not happen. Ms Kerr’s email concludes by alluding to there being ‘a very simple solution to all this’ but does not reveal what that is.
    1. [193]
      Mr Hillberg’s response is contained within Exhibit 1 (at page 85). In a brief reply to Ms Kerr, Mr Hillberg indicates he intends to review all of the file notes and reply more formally after that.
    1. [194]
      Before any formal reply is sent from Mr Hillberg, Ms Kerr replies to him on 30 October 2020 as follows:

    Hi Justin,

    Don’t worry about it, Tim and I had a long chat yesterday and I have confidence in him that he is handling things at the FC. And the staff member concerned waved a knife around yesterday so perhaps my troubles will be over very soon.

    I appreciate that you’re always willing to listen and your “door” is always open. Have a great weekend!

    Thank you

    Nia

    (Underlining added)

    1. [195]
      Nothing about Ms Kerr’s response to Mr Hillberg would suggest she harboured any concerns with the way in which Mr Windisch was handling her complaints. On the contrary, she plainly states she ‘has confidence’ in the manner in which Mr Windisch is handling things. The email sent by Ms Kerr to Mr Hillberg on 30 October 2020 is a contemporaneous record in her own words.[81] The language is not ambiguous.
    1. [196]
      During her evidence before the Commission Ms Kerr attempted to explain the stressor when confronted with the objective reality of the language she had used in her email of 30 October 2020. Ms Kerr explains that she did not want to use disrespectful or rude language when talking about her managers. Her explanation is implausible to the point of being nonsensical.[82]
    1. [197]
      In my view, the language of Ms Kerr’s 30 October 2020 email accurately captures her state of mind at the time. She was neither concerned nor distressed by the manner in which Mr Windisch was handling her complaints about Ziggie, at least not at the time she sent that email (which was at the end of the relevant chronology of her complaints).  
    1. [198]
      Having regard to Exhibit 4 and Ms Kerr’s email to Mr Hillberg on 30 October 2020, it appears clear that Ms Kerr has complained extensively about Ziggie between July and October 2020. It further appears that those complaints were thoroughly and properly dealt with by any objective standard. But none of that satisfied Ms Kerr. Her dissatisfaction is subjective and misplaced. There is no evidence of unreasonable management action in respect of the handling of the complaints about Ziggie.
    1. [199]
      It was in the context of this history of complaints that ‘the knife incident’ occurred.
    1. [200]
      On or about 29 October 2020 Ms Kerr complained to a Mr Marcelo Silva (a supervisor) that Ziggie was playing with a knife ‘towards Steph’.[83] In her SOFC, Ms Kerr describes the incident as follows:

    At 2:00pm on 29 October I witnessed a knife incident where the same worker waves an open box knife toward another worker.

    (Underlining added)

    1. [201]
      During her evidence in chief, I sought further particulars from Ms Kerr about this complaint. Ms Kerr was initially expressly unwilling to answer my questions as to whether she actually saw a knife. She had to be directed to answer.  She eventually described it as a box cutter. When I asked her to state whether she saw the blade extending from the box cutter she was again reluctant to answer. She eventually conceded she did not see the blade. The transcript records Ms Kerr going from describing the incident as “a hothead brandishing a knife”, to conceding it was a box cutter with no visible blade, all within responding to three to four simple questions.[84] This is yet another example of Ms Kerr’s troubling propensity for embellishment.
    1. [202]
      While the essence of this stressor is the alleged dismissive manner in which Mr Windisch dealt with the ‘knife’ incident, it is relevant to note at this point that the basis for Ms Kerr’s complaint appears to be, at best, misconceived. But further, while Ms Kerr contends she was ‘flabbergasted’ by Mr Windisch’s response, she later conceded in evidence that she had no idea what information had informed his response.[85]  
    1. [203]
      In her SOFC Ms Kerr states that she reported the ‘knife’ incident to Mr Windisch by email. She then states that:

    Mr Windisch spoke to me and dismissed the incident, saying the worker with the knife was “just joking”.

    1. [204]
      Ms Kerr does not stipulate when Mr Windisch spoke to her and how long this was after she reported the incident. But it is clear from the evidence that Mr Windisch did indeed act on the complaint.
    1. [205]
      Included in Exhibit 1 is an email chain between Mr Silva and Mr Windisch.[86] The emails confirm the complaint by Ms Kerr to Mr Silva, and then Mr Silva’s elevation of the matter to Mr Windisch. It is unnecessary to descend into detail as to the content of the emails other than to say they reveal that both Mr Silva and Mr Windisch spoke with one or both of the people said to be party to the ‘knife’ incident i.e. Ziggie and ‘Steph’. Both of them confirmed the reported incident was a brief moment of mutual hijinks. ‘Steph’ did not see the box cutter and was not uncomfortable with Ziggie’s conduct. Ziggie confirmed he was holding a box cutter, but that it was reversed (pointing towards him) and the blade was retracted.
    1. [206]
      What is plainly apparent from Mr Windisch’s email to Ms Pinchien on 5 November 2020 is that he took entirely proper action to investigate the complaint. Moreover, having informed himself of the full facts, his response is entirely appropriate. It is trite to note that it is rarely appropriate to share the details of investigations about such complaints with a complainant. Such was the practice adopted here. Mr Windisch did not ‘dismiss’ the incident. While brief, Mr Windisch’s feedback to Ms Kerr about the incident was accurate, reasonable, and delivered in a reasonable way.
    1. [207]
      When one has regard to Ms Kerr’s email to Mr Hillberg it is plain that Ms Kerr has convinced herself that Ziggie ‘waved a knife’ at his coworker despite not seeing the blade.[87] It seems that she was so confident about this that she thought it would result in Ziggie’s dismissal i.e. as evidenced by her comment that her ‘troubles might be over soon’. But the ‘knife incident’ that Ms Kerr reported is plainly no more than her distorted perception of a playful interaction between two workers.
    1. [208]
      The second part to this stressor is a relatively vague allegation that Mr Windisch ‘pressured’ Ms Kerr to ‘shut up’ about Ziggie. Despite the SOFC referring to Mr Windisch as the manager responsible for ‘pressuring’ her, in her testimony before the Commission, Ms Kerr alleges that it was Ms Pinchien who pressured her.[88]
    1. [209]
      Upon being invited to expand the particulars of this allegation Ms Kerr explains that the ‘pressure’ was in the email from Ms Pinchien to Ms Kerr responding to a long list of complaints predominately about Ziggie.[89]  The passages from the email that appear to have given Ms Kerr the impression that Ms Pinchien was ‘pressuring’ her to ‘keep quiet’ are in response to Ms Kerr’s persistent complaints about Ziggie. Some examples are:[90]

    Making accusations that Ziggie is artificially inflating his KPIs may be seen as vexatious. The spreading of rumours and gossip is not behaviour we want to see our team members display…

    Again, any complaints that have been made to FC management and People & Culture, have been dealt with by the FC management sufficiently. Again, there have not been any recent complaints against Ziggie that warrant formal investigation.

    Seeking information from others to support your narrative of aggressive and verbally abusive behaviour on the behalf of Ziggie could be seen as harassment and vexatious…

    (Emphasis added)

    1. [210]
      Ms Kerr’s testimony on this is disordered and difficult to follow.[91] Ms Kerr has plainly misunderstood Ms Pinchien to be accusing her of being vexatious.[92] But the unambiguous text of the email merely cautions Ms Kerr that persisting with certain accusatory conduct towards Ziggie ‘may be seen as vexatious’. There is no allegation by Ms Pinchien. It is a merely a cautionary observation.
    1. [211]
      Ms Pinchien’s email to Ms Kerr is a comprehensive response addressing Ms Kerr’s complaints. Moreover, it would appear that it is a communication sent in the context of Ms Kerr persisting with numerous or additional complaints about matters that have already been investigated and dealt with. In the circumstances, the caution offered by Ms Pinchien is not unreasonable.
    1. [212]
      To whatever extent Ms Kerr contends that the email at page 82 of Exhibit 1 is evidence of Ms Pinchien ‘pressuring her’ to be quiet, her contention is misconceived. On the evidence it would appear that all of the previous complaints were properly investigated and unsubstantiated. 
    1. [213]
      As for the ‘knife’ incident, not only is there no evidence to support the very serious allegation made by Ms Kerr, but the response to her complaint was entirely reasonable and communicated to her reasonably. There is equally no evidence that Ms Pinchien pressured Ms Kerr to be quiet or that she acted anything other than reasonably in her communications with Ms Kerr. 
    1. [214]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 11 – Friday work meeting

    1. [215]
      Ms Kerr’s SOFC does not plainly particularise this stressor. However, upon a full reading of the content under the heading of ‘Stressor 11’ it becomes apparent that Ms Kerr’s complaint is that she contends she was bullied by Ms Brewer by way of an “unjustified criticism and complaint, about a small thing”.
    1. [216]
      The relevant particulars are gleaned from the SOFC and Ms Kerr’s testimony before the Commission.
    1. [217]
      At the relevant time, Ms Kerr worked a distinct roster on Fridays. Ms Kerr would work from 7am to 2:30pm each Friday, with a 30-minute lunch break at 11am. The shift of the ‘general warehouse’ is apparently 7am to 3:30pm.
    1. [218]
      On 19 November 2020 Ms Brewer circulated an email to all staff that read as follows:[93]

    Hey Team,

    Just a reminder that we have our Mo-ment BBQ tomorrow at 12:00 to raise Money for Movember. Please bring in a gold coin donation.

    We will also have our Business Update straight after at 12:30.

    Thanks,

    Sarah.

    1. [219]
      The email is an invitation to all staff to participate in a special event at 12 – 12:30pm. It appears that this was not the usual lunch period. Ms Kerr stated that the supervisor announced at the commencement of the shift on 20 November 2020 that lunch was going to be at 12pm and a BBQ was being provided. [94]
    1. [220]
      Despite this clear direction, and without directly discussing it with her supervisor (or any other manager), Ms Kerr proceeded to adhere to her usual lunch break at 11am and left her workstation for 30 minutes.[95] After a lengthy period of evasive answers and obfuscation, Ms Kerr also (eventually) confirmed that after she returned from lunch at 11:30am, she then left her workstation again to attended the BBQ between 12 – 12:30pm which was, in effect, a second break of 30 minutes.
    1. [221]
      Ms Kerr contends in her SOFC that she was approached by Ms Brewer after the 12:30pm meeting (presumably around 1pm) and (she says) told she was ‘in trouble’ for leaving at 11am. This was apparently because her supervisor did not know where she was.
    1. [222]
      In giving her evidence Ms Kerr was very unclear about what sort of ‘trouble’ she was actually in, and with who. She appears to ultimately contend that it was Ms Brewer who took issue with her absence, not her supervisor.[96] Notwithstanding this, Ms Kerr was not clear at all as to whether Ms Brewer admonished her.
    1. [223]
      In any event, to whatever extent Ms Brewer might have raised Ms Kerr’s unanticipated absence with her, Ms Kerr confirms in her own SOFC and her evidence that she apologised for the misunderstanding.
    1. [224]
      There were two documents in evidence that assist in adding perspective to this stressor. Exhibit 1, page 92 is an electronic record of Ms Kerr’s logged hours for 20 November 2020. With her entry for her lunch break at 11am and the adjustment for the BBQ break, an anomaly was apparently detected by Ms Pinchien. Ms Pinchien appears to have forwarded this to Ms Brewer to address with Ms Kerr.
    1. [225]
      At page 91 of Exhibit 1 there is an email from Ms Brewer to Ms Pinchien that reads as follows:

    Thank you for sending that through.

    Just confirming my conversation with Laniia. She was aware that the lunch break was at 12:00pm but she thought that because she finishes an hour earlier than everyone she should take her lunch at 11:00 (an hour before everyone else). I advised her that Marcelo had instructed the group and that if she was unclear in the future that she should ask before she takes a break.

    1. [226]
      When asked directly, Ms Kerr was unable to identify how Ms Brewer had admonished or punished her. The best Ms Kerr could do was to describe Ms Brewer as approaching her 'very huffy' and asking her why she went to the lunch at 11am.[97]
    1. [227]
      It is plain from Ms Brewer’s email extracted above that the conversation with Ms Brewer was no more than an enquiry by Ms Brewer as to why Ms Kerr had taken a break at 11am. Given the unique arrangements for the BBQ and the direction given by the supervisor that morning, the enquiry was both reasonable and reasonably conducted.
    1. [228]
      There is no evidence that Ms Kerr was criticized or the subject of any complaint about her conduct on 20 November 2020. Ms Brewer’s email and Ms Kerr’s own evidence appear to confirm that Ms Brewer did little more than seek an explanation from Ms Kerr.  Further, while I am conscious that Ms Kerr contends that Mr Windisch raised the matter with her, he did so on 1 December 2020 in the context of a meeting that is the subject of Stressor 12.
    1. [229]
      For the purposes of the allegation in Stressor 11, being that Ms Brewer engaged in bullying on 20 November 2020, I am satisfied that Ms Brewer’s enquiry of Ms Kerr was management action, that it was reasonable, and it was reasonably taken. To the extent there was any criticism of Ms Kerr at all I am equally of the view that would have been reasonable in the circumstances.
    1. [230]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    Stressor 12 – 1 December 2020 Allegations meeting

    1. [231]
      Ms Kerr’s SOFC contends that Mr Windisch engaged in ‘bullying behaviours’ on 1 December 2020. Ms Kerr states that mid-morning on that day, she was required to meet with Mr Windisch in his office. At this meeting Ms Kerr contends that Mr Windisch verbally listed a series of allegations and asked her to respond.
    1. [232]
      Ms Kerr complains that no support person was offered to her for this meeting. She further complains the allegations were false, old, and (in the case of the ‘double lunch break’ complaint) a repetition of matters already resolved. Ms Kerr says that Mr Windisch labelled her ‘not following reasonable instruction’ and states that she felt shocked and victimised by the meeting.
    1. [233]
      Ms Kerr gave evidence that her distress was not necessarily the manner in which the meeting arose i.e. without notice, but that she knew the matters being raised with her were not true. Ms Kerr gave evidence that the meeting lasted approximately 30 minutes.[98]
    1. [234]
      Mr Windisch gave evidence about the meeting.[99] He confirmed the meeting occurred and the general content as described by Ms Kerr. He also agreed that the meeting was approximately 30 minutes. Mr Windisch also confirmed that he prepared talking points before the meeting which he then added content to during the meeting. Those points and notes were before the Commission.[100]  
    1. [235]
      Mr Windisch described the purpose of the meeting as an informal discussion about matters of concern. He described his management style as preferring to firstly deal with such matters on the floor with a worker, followed by an informal meeting one-to-one with the worker. The meeting on 1 December 2020 was in that latter category. The next step after that would be formal meeting with others in attendance.
    1. [236]
      Mr Windisch confirmed he spoke to Ms Kerr about the matters contained in Exhibit 1 (pages 93 to 94) and that he contemporaneously recorded the responses from Ms Kerr to certain matters discussed (at page 94). The purpose of the discussion was the informal one-to-one he had previously described.[101]
    1. [237]
      Ms Kerr failed to effectively cross examine Mr Windisch on this stressor. The cross examination was predominately an exercise in Ms Kerr somewhat pedantically seeking to argue against the validity of some the criticisms levelled at her at the meeting on 1 December 2020. Ms Kerr had to be re-directed throughout her cross examination to avoid her straying into argumentative questioning. In my view, Ms Kerr’s apparent desire to be ‘right’ about those matters clouded her judgment as to what was relevant.
    1. [238]
      The validity of the criticisms raised on 1 December 2020 is not strictly the point in this matter. The only issue for the Commission to determine on this stressor is whether it was reasonable for Mr Windisch to raise those matters and whether he did so in a reasonable way.
    1. [239]
      With respect to whether it was reasonable to raise these matters with Ms Kerr, there is no evidence before me that would lead me to conclude otherwise. The various matters raised are well particularized in the notes exhibited in the proceedings.[102] The fact that Ms Kerr does not agree with some of the criticisms does not make it unreasonable for the employer (who holds another view) to raise them with her in the context of an informal discussion. It was entirely reasonable for Mr Windisch to raise these matters with Mr Kerr in those circumstances.
    1. [240]
      Further, the manner in which Mr Windisch approached the matter was equally reasonable. It is an entirely uncontroversial approach to such matters where there is a gradual escalation. Given the growing number of concerns, most of which had not been fully explored or responded to by Ms Kerr, it was reasonable for Mr Windisch to raise them informally as he did. Such an approach can often result in a better understanding between the parties, which in turn can preserve the working relationship. Unfortunately, that was not to be the case here.  
    1. [241]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.
    1. [242]
      For completeness I note that Ms Kerr’s focus in this stressor appears to be on the ‘double lunch break’ complaint. In particular she appears to take issue with it being raised again, after she had already resolved it with Ms Brewer. It appears Ms Kerr was at pains to confront the issue with Mr Windisch which resulted in her sending an email to him (at 1:13pm on 1 December 2020) after the 1 December 20202 meeting to further explain her position on the matter.[103]
    1. [243]
      In his reply email (sent at 2:39pm on 1 December 2020) Mr Windisch clearly, firmly, and reasonably explains to Ms Kerr how the entire issue arising from her double lunch break on 20 November 2020 arose because she failed to follow a reasonable direction from her supervisor to have lunch at 12pm that day and failed to communicate either her concerns about that direction or her plans to disregard it to anyone. He was plainly using the incident as a recent example of the concerning conduct.
    1. [244]
      Ms Kerr concludes the exchange with a further email (sent at 7:24pm on 1 December 2020). Of particular interest in this email is Ms Kerr’s characterisation of her interactions with Mr Windisch on 1 December 2020 as ‘taking the time to chat’ with her.[104]
    1. [245]
      The reply email from Mr Windisch to Ms Kerr on 1 December 2020 unequivocally demonstrates the reasonableness (and patience) of Mr Windisch in dealing with the matter. But further, it leaves no doubt as to the reasonableness of Ms Brewer raising it with Ms Kerr in the first place.
    1. [246]
      Following the meeting on 1 December 2020, Ms Kerr approached Ms Brewer on 2 December 2020 with respect to taking some ‘mental health’ leave. Ms Brewer approved this leave which took the form of Ms Kerr working shorter days finishing at 12pm. Ms Kerr remained working those reduced hours until 10 December 2020.

    Stressors 13-15 – the events of 10 December

    1. [247]
      Ms Kerr’s SOFC lists three further stressors (13-15) that all arise out of the events that occurred on 10 December 2020. They are more properly a single stressor in three parts. I intend to deal with them in that manner. Additionally, the SOFC lists the stressors in an order that is not chronological. For ease of understanding I will address the three parts chronologically. I will use the same titles used by Ms Kerr in her SOFC for each of the three parts/stressors.

    i. Background

    1. [248]
      Ms Kerr was handed a letter by Mr Windisch on 10 December 2020. The purpose of the letter was to formally initiate management of Ms Kerr’s conduct. According to her SOFC, Ms Kerr’s first contention regarding this is that ‘management's approach to the letter was neither private nor confidential, and done in bad faith’. To address this aspect of Ms Kerr’s stressor, some background context is necessary.
    1. [249]
      Between 2 December and 8 December 2020, Ms Kerr continued to work her normal roster albeit she took leave from 12pm each working day. During this period Ms Kerr allegedly engaged in conduct towards some of her colleagues that caused them to complain to management (‘the fresh allegations’). For the purposes of these reasons, it is not necessary to explore the details or veracity of the fresh allegations. Suffice to say that the conduct complained of was most properly characterised as unsolicited and unnecessary commentary from Ms Kerr about how or what other workers were doing in respect of the performance of their duties.
    1. [250]
      In isolation, Ms Kerr’s alleged conduct on this occasion was not such that it might typically warrant any formal or other intervention by management. What was problematic about it in this instance was it appeared consistent with Ms Kerr’s developing pattern of similar conduct, which had most recently been the subject of her discussion with Mr Windisch on 1 December 2020. In the period between 2 and 10 December 2020, the complaints about Ms Kerr’s conduct brought her employer to a turning point in terms of how to address their concerns.
    1. [251]
      In a very common (and reasonable) approach to managing employees, Mr Windisch elected to escalate his approach from the informal counselling (that occurred on 1 December 2020) to formal performance management. The method for commencing this process was to communicate the concerns to Ms Kerr in writing and to arrange for a meeting where she would be given an opportunity to respond and ultimately address the concerns going forward. The letter in question is in evidence in these proceedings.[105] In terms of procedures for managing employees generally, nothing about this approach is unusual or unreasonable.

    ii. Allegation letter

    1. [252]
      Having regard to stressors 13 – 15 in Ms Kerr’s SOFC, the first complaint of Ms Kerr in the chronology of events on 10 December 2020 was the manner in which the letter was delivered to her by Mr Windisch. It is identified as 'Stressor 14' in her SOFC.
    1. [253]
      Ms Kerr contends that Mr Windisch delivered the letter to her in a manner that was neither private nor confidential. In particular she complains that Mr Windisch approached her at her workstation in the warehouse and handed her the letter (which was not in an envelope) and ‘announced’ it was an ‘allegation letter’. Ms Kerr complains that this occurred when a fellow worker was ‘close enough to hear our conversation’.
    1. [254]
      In respect of this allegation the Commission has the advantage of CCTV footage that clearly captures the moment where Mr Windisch approaches Ms Kerr to deliver the letter to her. The footage has been very helpful in providing objective insights into the events of 10 December 2020 and will be referred to in the reasons that follow in respect of the various aspects of that event that Ms Kerr complains of.
    1. [255]
      In this instance the footage depicts clearly the location where Mr Windisch handed Ms Kerr the letter and the proximity of another worker to that interaction. To the extent Ms Kerr complains that the letter was not in an envelope, that is not disputed. However, nothing about that fact has been demonstrated by Ms Kerr or the CCTV footage to have compromised the confidentiality of the contents of the letter.
    1. [256]
      Further, with respect to the co-worker who was proximate to the event, I am not satisfied that Ms Kerr has established that he could hear the conversation or was otherwise privy to any aspect of the confidential discussion between Ms Kerr and Mr Windisch. My view in this regard is informed by a number of aspects of the evidence.
    1. [257]
      Firstly, Ms Kerr (who bears the onus) does not appear to have made any effort to compel or otherwise have the co-worker attend to give evidence. While I note that there is some evidence from Ms Kerr that the worker in question has an impairment (apparently, he does not speak) this was never confirmed and nor was there any explanation as to why alternative forms of evidence from the co-worker were not explored e.g. sworn statement.[106]
    1. [258]
      The absence of evidence from this co-worker or any explanation as to why he was not called leaves me with only the testimony of Ms Kerr with respect to what, if anything, the co-worker might or might not have overheard. Ms Kerr cannot attest to what the co-worker did or did not hear, and she has so consistently proven herself to be an unreliable witness in these proceedings that I am not inclined to accept her speculative assertions in this instance.
    1. [259]
      Additionally, the CCTV footage shows (to some extent) the co-worker’s reaction to the conversation taking place nearby. The footage shows the co-worker to be working behind a partition at a distance of approximately 2-3 metres away from Ms Kerr. The footage shows that the co-worker (on one to two occasions) briefly glances up in a way that is consistent with him being conscious of a conversation taking place on the other side of the partition.[107] There was a rather farcical (but unsuccessful) attempt by Ms Kerr during the hearing to assert (while we were both watching the CCTV footage) that the co-worker looked up more frequently.[108]
    1. [260]
      Importantly, I note that on the one to two occasions that the co-worker does briefly glance up from his work, it is at a point that coincides with the CCTV footage also depicting Ms Kerr’s body language as becoming increasingly animated in a way that would be consistent with her voice being raised. Regrettably the CCTV footage has no soundtrack to confirm this, but I consider it more likely that if the co-worker heard anything at all, it was not because of the tone or volume of Mr Windisch’s voice.
    1. [261]
      Indeed, the CCTV images of the entire interaction between Mr Windisch and Ms Kerr gives the very clear impression that it is Ms Kerr who escalates the tone of the conversation and prolongs it. In her own evidence she contends that she questions Mr Windisch about the letter and its content.[109]  Having regard to her body language evident in the CCTV footage I would describe it as being animated, agitated, and consistent with her being confrontational whereas Mr Windisch appears largely passive and, at times, very uncomfortable being there.
    1. [262]
      If the co-worker heard anything confidential which, in the absence of evidence I do not accept, it would only have been because Ms Kerr prolonged the exchange by being argumentative with Mr Windisch. 
    1. [263]
      Finally, I note that Ms Kerr’s original claim for compensation described this incident as Mr Windisch handing her the letter ‘in front of many people’.[110] But by the time Ms Kerr has filed her SOFC, the ‘many people’ she previously referred to had reduced to ‘a fellow co-worker’ (singular). When challenged on this at the hearing Ms Kerr made a vain attempt to change her story (again) and convince me that there were supervisors somewhere nearby who might also have overheard.[111] None were visible on the CCTV footage, and none were called by Ms Kerr to attest to what they might have heard. I consider Ms Kerr’s account of their presence to be as unreliable and unconvincing as the rest of her testimony.
    1. [264]
      Mr Windisch stated during cross examination that there were supervisors ‘on the cusp’ of 10-12 metres from where he was talking with Ms Kerr. He contended that they were ‘not within earshot’ especially taking into account the noisy environment of the warehouse.[112] While I consider Mr Windisch’s evidence to be plausible, I do not intend to give it any weight. It is ultimately speculative. But further, it is not necessary for me to consider it because it is not for the Regulator to disprove Ms Kerr’s assertion that others were around and could hear the conversation. It is for Ms Kerr to prove that they were there, and that they could. She has not called that evidence, and she has not proved those assertions.
    1. [265]
      When asked about the exchange he had with Ms Kerr that was depicted in the CCTV images, Mr Windisch indicated that his intention had been to ‘drop the letter off and walk away while no one was there’. But upon delivering the letter to her, Ms Kerr became visibly upset and began to ask him questions, so a longer than intended discussion ensued.[113] When asked about the manner and timing chosen to deliver the letter to Ms Kerr, Mr Windisch explained that it was planned in a way that, he thought, there would be no one around when he handed her the letter.[114] The co-worker visible on the CCTV footage was behind a partition and, having regard to the footage, Mr Windisch is clearly unaware of his presence.
    1. [266]
      Despite the fact that Ms Kerr found it upsetting, nothing about the approach taken by Mr Windisch to deliver the letter was unreasonable. It was plainly a task that Mr Windisch put some thought into. Mr Windisch deliberately turned his mind to timing the delivery, selecting a time when (he thought) no one was around, and with the intention to simply deliver the letter and go.  Even though it appears he failed to perfectly execute his plan, I am not satisfied the presence of the co-worker behind the partition or the unintentionally prolonged discussion with Ms Kerr alters what was otherwise legitimate and reasonable management action, carried out in a reasonable way. Reasonable schemes reasonably implemented can miscarry.[115] 
    1. [267]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    iii. CCTV of the incident

    1. [268]
      Ms Kerr complains about the conduct of Mr Windisch during their interactions when he handed her the letter on 10 December 2020. Ms Kerr appears to regard this as separate to her complaint about the manner and location of the letter being delivered to her. She identifies this as ‘Stressor 15’ in her SOFC.
    1. [269]
      Ms Kerr contends that Mr Windisch’s approach to her at her workstation was ‘in bad faith’ because it contravened a previous request by her that he not approach her in that way. Additionally, Ms Kerr contends that during their interaction, Mr Windisch’s actions i.e. his tone, manner, gestures, and the fact that he returned twice to her was intimidating, bullying, and humiliating.
    1. [270]
      Mr Windisch gave evidence that when he first approached Ms Kerr, his intention was to simply give her the letter and then leave. He stated that he told Ms Kerr that he was giving her ‘a letter of allegations’ or words to that effect, that he suggested she read it elsewhere, and that they will have a further discussion about it the next day.[116] Mr Windisch ultimately had to deviate from his planned approach to the matter because Ms Kerr immediately began to engage with him, asking questions about the letter. This continued despite Mr Windisch saying he did not want to get into a discussion about the matter ‘on the floor’ i.e. at Ms Kerr’s workstation.[117]
    1. [271]
      Mr Windisch further stated that he attempted to leave but Ms Kerr was becoming visibly upset, so he returned to attempt to calm her. He stated that he attempted to distract her by talking about something else.[118] Mr Windisch does not recall if he raised his voice, but he does not believe he did. He reiterated when giving this evidence that Ms Kerr was visibly upset and he was trying to calm her down.
    1. [272]
      Under cross examination from Ms Kerr, Mr Windisch was asked why he continued talking to Ms Kerr if she was visibly upset. He responded: “Because you kept asking me for further information”.[119] When asked why he did not adjourn their discussion to somewhere private, Mr Windisch reiterated it had been his desire to simply deliver the letter and leave. He noted that the more detailed discussion was scheduled for the next day during which Ms Kerr could have a support person etc.[120]
    1. [273]
      As previously noted, I had the advantage of watching the CCTV footage during the hearing. The footage gives a clear and objective depiction of the interaction between Ms Kerr and Mr Windisch. While I have no doubt that Ms Kerr subjectively regarded the interaction as distressing, there is absolutely nothing about the body movements or body language of Mr Windisch that would suggest his conduct was aggressive or intimidating. On the contrary, Mr Windisch looks uncomfortable and awkward for the better part of the footage. I consider this to be consistent with Mr Windisch’s evidence that he was unintentionally drawn into a discussion by Ms Kerr’s persistent questioning.
    1. [274]
      By contrast, Ms Kerr’s body language visible in the CCTV footage is clearly consistent with her being agitated. She is depicted engaging verbally with Mr Windisch and gesticulating with her arms. There appears to be at least one occasion where Mr Windisch attempts to hand the letter to Ms Kerr, but her body language clearly demonstrates that she is not receptive to receiving it.
    1. [275]
      My contemporaneous observations of the CCTV footage are recorded on the transcript.[121] In my view the footage demonstrates that Mr Windisch has conducted himself entirely reasonably. While there is no audio, the nature and manner of Mr Windisch’s interaction can be reliably evaluated by reference to his body language, and also the body language of Ms Kerr. Mr Windisch looks wholly uncomfortable throughout most of the interaction, while Ms Kerr’s stance appears agitated and argumentative.
    1. [276]
      To the extent she was distressed, it is my view that this distress was a feature of her own rather skewed perception of what Mr Windisch was attempting to communicate to her.  Indeed, Ms Kerr reveals just how distorted her perception was in her SOFC where she states:

    I was distressed and horrified when Mr Windisch said I’m a bad person, with many people feeling wronged by me.       

    1. [277]
      While I accept that this is how Ms Kerr perceived Mr Windisch’s actions, that was plainly not what was communicated to her.
    1. [278]
      Ms Kerr also relied on an alleged ‘agreement’ that Mr Windisch had apparently made to not have discussions with her ‘on the floor’ about performance or other related matters. Ms Kerr contends that this ‘agreement’ was reached in July 2020 and evidenced in an email chain following the ‘near miss’ report issue. The emails relevantly provide:[122]

    From Ms Kerr on July 20, 2020:

    …I’m feeling under a lot of pressure that things I say/do are being slanted the wrong way. I’m always happy to have a discussion but it’s been a lot to deal with over the past few weeks.

    May I request any future discussions are in your office and not on the floor and not surprise/ambush. That would really help my frame of mind.

    (Underlining added)

    Mr Windisch replied on 21 July 2020:

    …Of course in the future we can sit and discuss.

    1. [279]
      It is not necessary to descend into an analysis of whether this email exchange establishes a binding agreement. There are any number of obvious considerations (such as health and safety or performance management) that demonstrate the impractical and unenforceable nature of such a term. At the very least the email exchange in July 2020 might be characterised as a basis for an (unrealistic) expectation by Ms Kerr that performance or other related issues would not be discussed ‘on the floor’.
    1. [280]
      But even if I were to accept that such an ‘agreement’ existed in some binding form, Mr Windisch has not contravened it. To whatever extent he was conscious of Ms Kerr’s expectation when he approached her on 10 December 2020, Mr Windisch clearly did not intend to have a ‘discussion’ with Ms Kerr ‘on the floor’ that day. He simply intended to deliver the letter to her. The discussion was scheduled for the next day. Mr Windisch only lingered and engaged with Ms Kerr because she questioned him about the letter, initially declined to accept it from him and then, when she became visibly upset, he tried to calm Ms Kerr down.
    1. [281]
      Further, if Mr Windisch has contravened the asserted ‘agreement’ it has been with Ms Kerr’s implied consent (demonstrated by the engagement that she initiated) or to offer assistance in calming her down. It was the latter motive that prompted Mr Windisch to ‘return twice’ and, far from being an act of intimidation or bullying, it was a gesture of empathy and concern.
    1. [282]
      For completeness it ought to be noted that during her cross-examination of Mr Windisch, Ms Kerr was at pains to have him acknowledge that she was visibly upset when he commenced speaking to her. It is plain from Ms Kerr’s questions she was trying to elicit evidence from Mr Windisch that she was visibly upset before he had even begun speaking with her on 10 December 2020. Her questions were neither precise nor a fair representation of what Mr Windisch had previously said but in any event, after putting the proposition to Mr Windish repeatedly and eliciting some innocently vague responses, Mr Windisch quite clearly stated he observed Ms Kerr becoming upset during their discussion.[123]
    1. [283]
      Further, nothing about Ms Kerr’s demeanour visible in the CCTV footage suggests she was upset before Mr Windisch approaches her.
    1. [284]
      While Mr Windisch’s plan for delivery of the letter to Ms Kerr on 10 December 2020 did not unfold the way he had hoped, it was entirely reasonable in its inception. Further, despite the variations imposed on the plan by Ms Kerr’s conduct, the plan was reasonably implemented. Reasonable management action is a much broader concept than industrial fairness.[124] Reasonable schemes reasonably implemented can miscarry without rendering them unreasonable.[125] However one might fairly and objectively describe the actions of Mr Windisch on 10 December 2020, they never rising to the level of ‘unreasonable’.
    1. [285]
      To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

    iv. Naming of support person 

    1. [286]
      Before dealing with this aspect of the stressor it is relevant to say something about the relevant timeline of events on 10 December 2020:
  • At or about 9:10am on 10 December 2020 the CCTV footage shows that Mr Windisch handed Ms Kerr a letter containing allegations.[126] That letter is contained in Exhibit 1 (‘the first letter’).[127]
  • At some time between 9:10am and 9:30am, after Mr Windisch has left her, Ms Kerr approaches a co-worker (Ms Parfitt) and asked her to be her support person for the meeting foreshadowed in the first letter. Ms Parfitt declined to assist but, importantly, did not say why.[128]
  • At some time between 9:30am and 11:07am Ms Kerr asked Mr Windisch to provide her with more particulars about the allegations contained in the first letter.[129]
  • At 11:07am Mr Windisch responded to the request with an email attaching a letter containing particulars of the allegations (‘the second letter’).[130] Relevantly, the second letter includes particulars that name Ms Parfitt as one of the staff who recently complained about Ms Kerr’s conduct. 
  1. [287]
    The SOFC filed by Ms Kerr contends that she was ‘denied procedural fairness by not providing information about a support person’ and that management acted in bad faith ‘by not providing critical information’. The SOFC and the evidence of Ms Kerr suggest that these alleged failings caused Ms Kerr to ‘ask the wrong person’ to be her support person.
  1. [288]
    The process undertaken by Mr Windisch is a common occurrence in workplaces. Managers will, in a variety of ways, have to initiate the steps necessary to address conduct or manage performance of errant employees. While certain accepted methods and standards for undertaking this task have evolved over time, it is fair to say that provided managers stay within the very broad boundaries of acceptable procedure, the fair or reasonable way to undertake such a process is as mixed and varied as the people and situations to whom it is being applied. That is to say, it is the facts and circumstances of each case that will ultimately determine whether the process was fair or reasonable, not slavish adherence to policy or legislation.
  1. [289]
    Additionally, in the context of s 32(5) of the WCR Act, it is trite to note that reasonable management action is not synonymous with industrial fairness and that the former can exist without the latter. It will always be a question of whether the management action was reasonable in all of the circumstances.[131] 
  1. [290]
    Ms Kerr’s complaint does not expressly allege that the first letter did not inform her of what she was alleged to have done. It seems that her complaint is more focused on a need for more context of her impugned conduct (which necessarily requires disclosure of the names of the complainants). It is the absence of this latter feature which had the unfortunate consequence of Ms Kerr asking one of the complainants to be her support person. To ensure thorough consideration of this aspect of the stressor I will consider all aspects of the letters and conduct in question.
  1. [291]
    The first letter that was issued to Ms Kerr by Mr Windisch on 10 December 2020 outlines two areas of concern. It is fair to say that, by comparison to the second letter, the first letter contains fewer particulars with respect to the complained of conduct. But that does not give rise to a conclusion that the first letter caused Ms Kerr to be denied procedural fairness. The first letter is merely a written direction to Ms Kerr to attend a meeting the following day. It was plainly Mr Windisch’s expectation that the full particulars (including names) would be put to Ms Kerr at that formal meeting (in the same way he did on 1 December 2020).
  1. [292]
    The first letter was perfectly reasonable and adequate for the purpose intended and the fact that Ms Kerr asked for (and received) additional particulars does not disturb this conclusion. However, if I am wrong in that conclusion, to the extent that any procedural unfairness might have arisen by the omissions in the first letter, it was very swiftly addressed by the provision of the second letter (at the request of Ms Kerr) less than 2 hours later.
  1. [293]
    In general terms, the two letters, both alone or combined, are not lacking in ‘critical information’ as complained of by Ms Kerr. The first letter contains more than sufficient information to formally inform Ms Kerr as to the nature of the employer’s concerns and the direction to meet with them for a discussion. The second letter only expands on this. To the extent that either or both letters offend any policy or law (which is highly doubtful) this would not render them unreasonable or delivered in an unreasonable way within the meaning of s 32(5) of the WCR Act. 
  1. [294]
    A particular criticism levelled at the first letter by Ms Kerr is that while it identifies her right to bring a support person with her to the meeting proposed for 11 December 2020, it does not provide her with information about who made the complaints about her or who might be unsuitable to be a support person.
  1. [295]
    Ms Kerr contends that she asked for details of the complainants on 10 December 2020, but that Mr Windisch declined to provide the information. The absence of this rather specific information ultimately led to Ms Kerr approaching (at least) one of the complainants to be her support person. This (presumably) was cause for some degree of embarrassment.
  1. [296]
    The first letter plainly informs Ms Kerr that she may bring a support person with her to the proposed meeting on 11 December 2020. It is a matter of almost universal understanding in the field of workplace management that procedural fairness at meetings involving discussions about performance or conduct (or any other matter significant to an employee’s employment) will be optimised by an invitation to bring a support person.
  1. [297]
    While such invitations are common, the selection of the support person is a matter left entirely to the subject employee in all but exceptional cases. It was this step in the process undertaken on 10 December 2020 where the scheme miscarried, though I hasten to add, not because of any unreasonableness on the part of Mr Windisch or management.
  1. [298]
    Ms Kerr’s initial choice of support person unfortunately was Ms Parfitt i.e. the very person who had recently complained about her. While such a scenario could have produced some awkwardness, it appears from Ms Kerr’s description of the conversation that it did not. Indeed, Ms Kerr could not even recall the conversation with Ms Parfitt with any precision.[132]
  1. [299]
    When Ms Kerr asked Ms Parfitt if she would be her support person, Ms Parfitt merely declined. She did not explain why. Ms Kerr says she ‘sensed’ the reason but did not otherwise appear distressed by the encounter. To describe it as ‘awkward’ gives rise to any number of possible emotional reactions, but I got no sense of distress from Ms Kerr’s description of the interaction when she gave evidence.[133]
  1. [300]
    Regardless of how Ms Kerr felt, the issue ultimately is whether it was unreasonable for Mr Windisch to have not informed Ms Kerr that Ms Parfitt and another co-worker (Ms Bradford) were the source of the most recent complaints. In all of the circumstances I consider that, for the purposes of the communications with Ms Kerr on 10 December 2020, it was entirely within reasonable practice to refrain from naming those complainants. 
  1. [301]
    It must be remembered that while Ms Kerr subjectively perceived the first letter as very confronting, it was only ever intended to serve a short term, simple purpose i.e. to formally advise her of performance concerns, and to direct her to attend a meeting (the next day) to discuss them. It would be at the subsequent meeting where the full particulars were to be discussed, and Ms Kerr’s responses given. Certainly, this was Mr Windisch’s clear intent.[134]
  1. [302]
    All of this ought to have been equally clear to Ms Kerr given the circumstances but for her highly distorted perception of the message being communicated by Mr Windisch. There is a moment of insight into the extent to which her perceptions are distorted where Ms Kerr describes Mr Windisch giving her the first letter and describes him saying she was ‘a bad person, with many people feeling wronged’ by her.[135] While I accept that this is how Ms Kerr perceived the exchange around her receipt of the first letter, a more exaggerated overstatement would be difficult to imagine.
  1. [303]
    It is not uncommon to find, from time to time, disputation arising out of the clarity of allegations in such processes. No two matters will be the same and, for that reason, there are no rigid standards applied to the content of such letters. Subject to the circumstances and the purpose of the communication, a letter communicating concerns about performance and directing attendance at a meeting can include (or not include) a vast range of particulars without reaching a characterisation of ‘unreasonable’. The fact that the second letter in this instance enhanced the information available to Ms Kerr does nothing to undermine the reasonableness of the first letter.
  1. [304]
    It is an unfortunate coincidence that Ms Kerr inadvertently approached Ms Parfitt to be her support person, and it is true that an awareness of the complainant’s names would have prevented this. But that, of itself, does not make Mr Windisch’s actions unreasonable. It is a rare circumstance indeed where names of individual complainants are revealed to a subject employee at such an early stage in a performance management process.
  1. [305]
    Ordinarily someone receiving such a letter will have sufficient insight into their conduct and their relationships with co-workers such that they will instinctively not seek out complainants as support persons. Ms Kerr plainly did not enjoy the working relationship with Ms Parfitt that she thought she did. But even Ms Kerr concedes that she might have ‘sensed’ why Ms Parfitt refused, albeit not soon enough.[136]
  1. [306]
    Reasonable schemes, reasonably implemented, can miscarry.[137] The unfortunate coincidence of Ms Kerr approaching Ms Parfitt was not a product of any unreasonableness on the part of Mr Windisch or the scheme he was implementing. Further, I am not convinced on the evidence that she gave that Ms Kerr demonstrated how (or if) the interaction with Ms Parfitt contributed to her injury.
  1. [307]
    To whatever extent this stressor might have been causative of any injury to Ms Kerr, it is excluded by operation of s 32(5) of the WCR Act.

Conclusion

  1. [308]
    Having had the opportunity to observe and listen to Ms Kerr over the seven days of the hearing of this matter I am in no doubt that she is affected by some form of psychiatric condition. In my view that conclusion would be open to any reasonably experienced lay observer, even in the absence of a diagnosis from a medically qualified person. But I am equally confident that the condition she displays is entirely unrelated (in any compensable way) to her employment.
  1. [309]
    Having heard the evidence of all witnesses and considered the submissions made by Ms Kerr I am confident that each of the stressors nominated by Ms Kerr, to the extent that they give rise to the requisite causal connection to her medical condition, are each excluded by the operation of s 32(5) of the WCR Act.
  1. [310]
    Determining how or why Ms Kerr’s evidence was so consistently at odds with the facts goes beyond what I am required to do in these reasons. But in fairness to Ms Kerr, it ought to be stated that I do not consider her to be a deliberately dishonest witness. On the contrary, I accept that she truly perceived the nominated events to be distressing for the reasons that she has stated. I accept that was her firmly held, but subjective perception of those events.
  1. [311]
    While I can make no finding to this effect, I consider it possible that the operation of some underlying psychiatric illness has the effect of distorting Ms Kerr’s perceptions of the words and actions of others, including her managers.  In this impaired state, Ms Kerr has felt set upon and unreasonably treated when, on the facts of this matter, the reality was very much to the contrary.
  1. [312]
    Having heard extensively from relevant witnesses to the nominated stressors I am entirely satisfied that the management action complained of was in every respect reasonable and was reasonably implemented. In those circumstances, despite those stressors occurring in the workplace, they are excluded by operation of s 32(5) of the WCR Act.
  1. [313]
    Consequently, this appeal must be dismissed.

Orders

  1. [314]
    I make the following orders:
  1. The appeal is dismissed;
  1. The appellant is to pay the respondent’s costs of the hearing in an amount agreed by the parties or, failing agreement, such amount ordered by the Commission. 

Footnotes

[1] Exhibit 1, page 8.

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

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

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

[5] Allwood v Workers Compensation Regulator [2017] QIRC 88.

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

[7] [2016] ICQ 10 at [52]-[55].

[8][2020] QIRC 097.

[9] T 2-7 to T 2-9.

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

[11] Mahaffey at [55].

[12] T 2-2, ll 35-40.

[13] T 2-1 to T 2-7.

[14] T 2-7 to T 2-9.

[15] Exhibit 1, page 8.

[16] SOFC filed by the Appellant on 21 January 2022.

[17] [2017] QIRC 88.

[18] SOFC filed by the Appellant on 21 January 2022.

[19] Mahaffey at [54]. This is subject to the Commission being satisfied as to ‘significance’ of that stressor. In these proceedings there is no evidence as to the significance of each stressor but rather, a broad concession which, in this instance is sufficient for the Commission’s purposes. 

[20] Appellant’s SOFC, page 1.

[21] Blackwood v Adams [2015] ICQ 001 at [19].

[22] T 3-5, ll 40-49; T 5-5, ll 25-40.

[23] T 3-10, ll 16-26. 

[24] T3-5, ll 40-49.

[25] T 1-16, ll 31-39.

[26] Appellant’s SOFC, page 6.

[27] T 1-10 to T 1-12.

[28] T 1-16, ll 31-39.

[29] Exhibit 1, page 53.

[30]  Bowers v WorkCover Queensland [2002] QIC 18; Delaney v Q-COMP Review Unit [2005] QIC 11.

[31] T 5-6, ll 25-45.

[32] T 5-26 to T 5-28.

[33] Appellant’s SOFC, page 6.

[34] T5-27, ll 5-15.

[35] Appellant’s SOFC, pages 7 – 8.

[36] Exhibit 1, pages 17 – 26 including two suitable duties plans that refer to ‘assistance opening parcels “if required” and (at page 21) an email from the OT in question setting out the technique which Ms Kerr should use to open parcels.

[37] T 1-28 to T 1-35.

[38] T 4-47, ll 17-24.

[39] T5-41 to T 5-42. 

[40] Exhibit 1, page 21.

[41] T 1-36 to T 1-38.

[42] Exhibit 1, pages 10-34; Exhibit 2.

[43] Appellant’s SOFC, page 3.

[44] Exhibit 1, page 40.

[45] Exhibit 1, page 41.

[46] Exhibit 1, page 41.

[47] T 4-37 ll 34-45; T 4-40 ll 11-26; T 4-40 l 47 – 4-41, ll 1-2.

[48] Appellant’s SOFC, page 9.

[49] Exhibit 1, pages 62-68; Exhibit 2.

[50] Exhibit 1, pages 113-126.

[51] Exhibit 2, email dated 7 May 2020.

[52] Exhibit 2.

[53] Exhibit 1, page 69.

[54] T 1-62, Line 45.

[55] T 1-62 to T 1-65.

[56] T 1-64, ll 25-30.

[57] T 3-7 to T 3-8.

[58] Exhibit 1, page 73 – 74.

[59] T 3-50 to T 3-51.

[60] T 3-46 to T 3-48.

[61] T 3-47, ll 15-20.

[62] Exhibit 1, page 75.

[63] Appellant’s SOFC, page 11.

[64] T 3-60, ll 32 – 41.

[65] Exhibit 1, page 78.

[66] Exhibit 1, page 78.

[67] T 3-12, ll 25-30; Exhibit 1, page 77.

[68] Exhibit 1, page 77.

[69] T 5-50 to T 5-52.

[70] T 5-50, ll 40-45 to 5-52, ll 1-10. 

[71] T 5-51 to T 5-52.

[72] Exhibit 1, page 79.

[73] T 1-71, ll 40-45

[74] T 5-51.

[75] Appellant’s SOFC, page 12-13.

[76] Exhibit 3.

[77] Exhibit 1, page 80.

[78] Exhibit 1, page 79.

[79] T 3-79 to T 3-88.

[80] Appellant’s SOFC filed 21 January 2022, pages 13-14.

[81] Exhibit 1, page 85.

[82] T 1-92, ll 20-25; T 2-51, ll 15-40.

[83] Exhibit 1, page 87.

[84] T 1-90, ll 15-47.

[85] T 1-91 to T 1-92.

[86] Exhibit 1, page 87.

[87] Exhibit 1, page 85.

[88] T 1-92 to T 193.

[89] T 193, ll 20-45. See also Exhibit 1, page 82.

[90] Exhibit 1, page 82.

[91] T 1-93, ll 30-45.

[92] T 2-54 to T 2-55.

[93] Exhibit 1, page 89.

[94] T 1-96.

[95] T 1-98 to T 1-99

[96] T 1-98.

[97] T 1-97 to T 1-98.

[98] T 1-107.

[99] T 3-13 to T 3-15.

[100] Exhibit 1, pages 93-95.

[101] T 3-14, ll 10-20.

[102] Exhibit 1, page 93-94.

[103] Exhibit 1, page 96-99.

[104] Exhibit 1, page 98. See also T3-95 to T 3-96.

[105] Exhibit 1, page 103.

[106] T 2-13 to T 2-15.

[107] T 2-14 to T 2-15.

[108] T 2-14, ll 25-45.

[109] T 2-11 to T 2-12.

[110] Exhibit 1, page 2.

[111] T 2-15 to T 2-16.

[112] T 3-138.

[113] T 3-17, ll 15-30. 

[114] T 3-17, ll 30-45.

[115] Bowers v Workcover Queensland [2002] QIC 18; 170 QGIG 1.

[116] T 3-17, ll 10-15.

[117] T 3-131 to T 3-132.

[118] T 3-17, ll 20-35.

[119] T 3-131, ll30-33.

[120] T 3-131, ll 35-40.

[121] T 2-11, ll 20-30; T 2-21 to T 2-22; T 4-22, ll 15-35. 

[122] Exhibit 1, page 79.

[123] T 4-7 to T 4-8.

[124] Q-COMP v Craig John Hohn [2008] QIC 56.

[125] Bowers v Workcover Queensland [2002] QIC 18; 170 QGIG 1.

[126] TN 3-126, ll 1-5.

[127] Exhibit 1, page 103.

[128] TN 1-110, ll 25-30; TN 1-114 to TN 1-115.

[129] TN 1-115.

[130] Exhibit 1, pages 107-108.

[131] Q-COMP v Craig John Hohn [2008] QIC 56.

[132] T 1-115, ll 1-10.

[133] T 1-114 to T 1-115.

[134] T 3-131 to T 3-132.

[135] SOFC filed 21 January 2022, page 18.

[136] T 1-115, ll 1-10. 

[137] Bowers v Workcover Queensland [2002] QIC 18; 170 QGIG 1.

 

Close

Editorial Notes

  • Published Case Name:

    Kerr v Workers' Compensation Regulator

  • Shortened Case Name:

    Kerr v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 190

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    25 Jul 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allwood v Workers' Compensation Regulator [2017] QIRC 88
4 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cite 3 - [2017] QIRC 88
Cite 4 - [2017] QIRC 88
Bowers v WorkCover Queensland (2002) QIC 18
5 citations
Jump To
Cite 1 - (2002) QIC 18
Cite 2 - (2002) QIC 18
Cite 3 - (2002) QIC 18
Cite 4 - (2002) QIC 18
Cite 5 - (2002) QIC 18
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Davis v Blackwood [2014] ICQ 9
1 citation
Jump To
Cite 1 - [2014] ICQ 9
Delany v Q-Comp [2005] QIC 11
2 citations
Jump To
Cite 1 - [2005] QIC 11
Cite 2 - [2005] QIC 11
Q-Comp v Hohn [2008] QIC 56
3 citations
Jump To
Cite 1 - [2008] QIC 56
Cite 2 - [2008] QIC 56
Cite 3 - [2008] QIC 56
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
State of Queensland v Q-COMP [2010] ICQ 6
1 citation
Jump To
Cite 1 - [2010] ICQ 6
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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