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Lee v Workers' Compensation Regulator[2025] QIRC 199

Lee v Workers' Compensation Regulator[2025] QIRC 199

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lee v Workers' Compensation Regulator [2025] QIRC 199

PARTIES:

Lee, Kwang

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2022/93

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

31 July 2025

HEARING DATES:

7–10 May 2024

30 September–3 October 2024

DATES OF WRITTEN CLOSING SUBMISSIONS:

Respondent's submissions filed on 27 November 2025

Appellant's submissions filed on 7 January 2025

Respondent's submissions in reply filed on 14 January 2025

MEMBER:

Pidgeon IC

HEARD AT:

Cairns

ORDERS:

  1. 1.
    Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is confirmed.
  1. 2.
    Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – consideration of the scope of the appeal – consideration of the date of injury – consideration of the admissibility of expert medical evidence – where  evidence is tendered by the appellant and the witness is not called – where the appellant did not raise an issue at hearing – where the expert medical evidence is admissible – where aggravation is not within the scope of the appeal – where the appellant's injury arose out of or in the course of employment – where the injury is excluded by operation of reasonable management action

LEGISLATION:

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

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 88

Bowers v Q-COMP [2002] QIC 8

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

Davis v Blackwood [2014] ICQ 9

Groos v WorkCover Queensland [2008] QIC 52

Jones v Dunkel (1959) 101 CLR 298

Kelly v Workers' Compensation Regulator [2022] QIRC 366

King v Workers' Compensation Regulator [2019] QIRC 134

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

Prizeman v Q-COMP [2005] QIC 53

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

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

Workcover Queensland v Kehl [2002] QIC

APPEARANCES:

Mr M. Glen of Counsel, instructed by Preston Law, for the Appellant.

Mr S. McLeod of Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

  1. [1]
    Mr Kwang Lee (also known as 'Shine') was employed by the Sovereign Resort Hotel Pty Ltd ('the Sovereign') in Cooktown as a Head Chef on a full-time basis.
  1. [2]
    Mr Lee lodged an application for compensation for psychiatric/psychological injury on 26 May 2021. On 3 September 2021, WorkCover allowed his application for compensation. Mr Lee's employer sought a review of this decision.
  1. [3]
    On 12 May 2022, the Review Unit decided to set aside the decision of WorkCover and substitute a new decision that the application for compensation should be rejected in accordance with s 32 of the Workers' Compensation and Rehabilitation Act ('WCRA').  It is this decision which Mr Lee appeals to the Queensland Industrial Relations Commission ('the Commission'), the subject of matter WC/2022/93 before me for determination.
  1. [4]
    The hearing of the appeal is to be conducted as a hearing de novo.[1]
  1. [5]
    Mr Lee bears the onus of proving, on the balance of probabilities, that his claim is one for acceptance.

The scope of this appeal

  1. [6]
    Mr Lee's online claim form lodged on 26 May 2021 stated that his date of injury was 15 May 2021; that the injury occurred at his normal workplace; and that the time of the injury was 5.00pm on 15 May 2021.
  1. [7]
    Mr Lee's case in this appeal is that he has sustained a psychiatric/psychological injury in the form of post-traumatic stress disorder ('PTSD') and/or major depressive disorder:
  1. (a)
    because of workplace events on 15 and/or 16 May 2021; or
  1. (b)
    alternatively, as a consequence of the events over the period of time from 12 February to 16 May 2021;[2] and/or
  1. (c)
    further or alternatively to (a) and (b) above, if Mr Lee was suffering a pre-existing psychiatric disorder in the nature of depression on or about 10 May, or at all, (which is denied) his PTSD and/or major depressive disorder constituted either:
  1. (i)
    an 'aggravation' of a pre-existing psychiatric disorder; and/or
  1. (ii)
    new, distinct and separate injuries from any pre-existing depressive disorder.

Respondent's submissions regarding the Appellant's further alternative case

  1. [8]
    The Respondent contends that 'based on the medical evidence, Mr Lee was diagnosed with a psychological/psychiatric injury, namely depression on 10 May 2021, which required him to take time off work. Accordingly, matters relied upon thereafter by the appellant are irrelevant to the appeal and [my] determination…'.[3]
  1. [9]
    With regard to the case set out at [7](c) above, the Respondent submits that:[4]

The appellant, on appeal, has raised a case that is in the alternative and alleges injuries in the nature of an "aggravation" to any pre-existing psychiatric disorder and/or new, distinct and separate injuries from any pre-existing depressive disorder. It is plain that the case now advanced is a very different one that formed part of the appellant's claim to WorkCover, and on review, to the respondent.

  1. [10]
    The Respondent refers to Church,[5] where President Martin (as his Honour then was) discusses the ambit of a de novo hearing before the Commission as being determined by the case which was before the Respondent:
  1. [33]
    That reasoning does not, with respect, accord with the role of the Commission in a hearing de novo. For the reasons I have set out above, the lodging of an appeal to the Commission does not "open the gates" for both parties to the appeal to request the Commission to determine "any number of preliminary issues". The ambit of such a hearing is determined by the case which was before the Regulator. It is also determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined.
  1. [11]
    The Respondent submits that whether a new and different injury or an aggravation were suffered on 15-16 May 2021 are not matters relevant to this appeal because such matters were not within the scope of Mr Lee's application to WorkCover and were never determined by WorkCover or the Respondent on review.[6]
  1. [12]
    On that basis, the Respondent says that the question for determination is whether Mr Lee had an injury at 10 May 2021 and whether s 32(5) applies to exclude his injury from the ambit of s 32(1).[7]

Appellant's submissions regarding his further alternative case

  1. [13]
    The Appellant submits that the issue which was before WorkCover Queensland and subsequently, the Regulator and is now before the Commission is whether the Appellant has sustained 'an injury' as defined by s 32 of the WCRA.[8] The Appellant says that s 32(3)(b) of the WCRA defines an injury to include an aggravation of a personal injury, if the aggravation arises out of, or in the course of, employment and employment is a significant contributing factor to the aggravation.[9] The Appellant submits that in determining the issue of whether the Appellant has sustained an 'injury' within the meaning of s 32 of the WCRA, the Commission is required to consider whether the Appellant has sustained an 'aggravation' of injury within s 32(3)(b) of the WCRA.[10]
  1. [14]
    The Appellant says its Amended Statement of Facts and Contentions made it 'abundantly clear' that Mr Lee's case was that he sustained an injury as a result of the events of 15 and/or 16 May 2021 and subsequently decompensated on 17 May 2021.[11]
  1. [15]
    The Appellant points out that Mr Lee's application for compensation nominated the date and time of injury as 15 May 2021 at 5.00pm. Mr Lee stated that the injury happened as a result of 'verbal racism harassment from staff member and nil response of formally reported complaint'.[12] The nature of the injury was described as 'stressful workplace and persistent verbal, racism harassment from staff member and nil response to formally reported complaint, headache, insomnia, difficult breathing, sense of guilty (sic), frustration, depression, fobia (sic) social TAS, afterimage, anxiety, chest pain, ringing in the ears, shiulder (sic) pain'.[13]
  1. [16]
    The Appellant says that the scope of the appeal therefore requires the Commission to consider whether, regardless of any findings in respect of a psychiatric injury or condition as at 10 May 2021, Mr Lee sustained a new and different injury on 15-16 May 2021 or whether Mr Lee sustained an aggravation on those dates.[14]
  1. [17]
    The Appellant's argument appears to be that if it is found that Mr Lee was suffering from a psychiatric condition on 10 May 2021 whether it be caused by personal stress or if it was a work-related injury within the meaning of s 32 of the WCRA, it is still open to me to find that Mr Lee sustained a new injury in the form of PTSD.[15]
  1. [18]
    The Appellant further argues that the evidence clearly establishes that any psychological injury suffered by Mr Lee on 10 May 2021 was significantly worsened such that it constitutes an aggravation within the meaning of s 32(3)(b). On this basis, the Appellant argues that Mr Lee succeeds on his alternative case even if the Commission were to find that he had sustained an 'injury' within the meaning of s 32(1) on 10 May 2021.

Consideration – Scope of the appeal

  1. [19]
    Should I determine that 10 May 2021 is not the date of injury, it is open to me to consider whether 15 May 2021 is the date of injury as is set out in Mr Lee's application for compensation. However, if I determine that the date of injury is 10 May 2021, it is not open to me to go on and determine if, later on 15 May 2021, Mr Lee suffered either an aggravation of a pre-existing injury, or a completely separate and distinct injury which was not subject of the original application for compensation. The appeal does not 'open the gates'[16] to Mr Lee to apply for compensation for an aggravation or a separate and distinct injury of PTSD.
  1. [20]
    While the Appellant's main argument has been with regard to the events of 15 and 16 May 2021, there is no doubt that the Appellant has conducted their case with reference to earlier events which occurred in the workplace as early as February 2021. One of the range of alternative cases put forward by the Appellant is that the injury occurred as a consequence of events over the period of time ('OPT') from 12 February to 16 May inclusive.[17] It is the nature of an OPT injury that after considering the available evidence, the injury may be found to have occurred at any point after the first point in time identified as when contributing events began occurring.
  1. [21]
    The Appellant contends that if there was an injury on 10 May 2021, it was not work-related, despite the Statement of Facts and Contentions referring to relevant workplace events occurring from February 2021 onwards. However, the evidence may demonstrate that if there was an injury suffered on 10 May 2021, employment was a significant contributor to that injury. The question would then be whether the injury is removed by s 32(5).
  1. [22]
    I do not think that the case advanced at [7](c) above is within the scope of this appeal.
  1. [23]
    I will therefore confine my consideration of the matter to address the date of injury and then following that, whether work was a significant contributor to the injury, and if relevant, whether s 32(5) operates to exclude the injury.

Preliminary matter: the evidence before the Commission regarding Dr Sang-Hee Lee (also known as Dr Campbell)

  1. [24]
    One of the doctors who examined Mr Lee was General-Practitioner Dr Campbell.
  1. [25]
    The Appellant tendered several documents as evidence at hearing pertaining to Dr Campbell:
  • Exhibit 13: Medical Certificate issued by Dr Campbell (Cooktown Medical Centre) dated 26 May 2021.
  • Exhibit 14: Medical Certificate issued by Dr Campbell (Cooktown Medical Centre) dated 10 May 2021.
  • Exhibit 25: Conference Memorandum of Dr A Christensen dated 18 December 2023 – attached to this memorandum are the notes of a surgery consultation on 10 May 2021 where Mr Lee attended on Dr Campbell and the notes of an attendance to the emergency department of the Cooktown Hospital on 17 May 2021.

Appellant's submissions

  1. [26]
    The Appellant submits that to 'prove the expert opinion', Dr Campbell was required to be called to give evidence and set out the basis for her expert opinion in accordance with the requirements for giving expert evidence. The Appellant says that as the Respondent did not call Dr Campbell to prove her alleged diagnosis or consultation note, both the alleged diagnosis and consultation note are inadmissible.[18]
  1. [27]
    The Appellant also argues that to the extent the Respondent seeks to rely on Dr Campbell's consultation note to establish the conversation alleged to have occurred between the Appellant and Dr Campbell on 10 May and Dr Campbell's alleged diagnosis of 'depression' on 10 May 2021, in the absence of calling the author, the consultation note constitutes inadmissible documentary hearsay. In support of this proposition, the Appellant points to Vice President O'Connor's statement in King,[19] that 'the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done'.[20]
  1. [28]
    The Appellant submits that the failure to call Dr Campbell to prove her diagnosis and consultation note of 10 May 2021 is fatal to the Respondent's case which must be dismissed.[21]
  1. [29]
    The Appellant then states that the Commission should draw an adverse inference pursuant to the rule in Jones v Dunkel.[22] The Appellant says that the uncalled witness would be expected to have been called by the Respondent and submits that the Respondent's whole case rests upon and is to be determined upon the alleged diagnosis (and observations) of Dr Campbell. The Appellant says that the Respondent's Statement of Facts and Contentions and opening address at hearing confirmed the 'critical reliance' upon Dr Campbell's evidence. The Appellant says that the Respondent's case 'cannot possibly succeed' without calling Dr Campbell and that no other witness can give the evidence Dr Campbell can as to her observations and diagnosis on 10 May 2021.[23]
  1. [30]
    The Appellant notes that the trial plan filed by the parties indicated an intention of the Respondent to call Dr Campbell. The Appellant says that there was no explanation provided to the Commission for the failure to call Dr Campbell and that no application was made by the Respondent to tender Dr Campbell's medical notes pursuant to a provision of the Evidence Act 1977 without Dr Campbell being called.
  1. [31]
    The Appellant says that the Commission ought to draw the inference that Dr Campbell's evidence would not have assisted the Respondent in its case. The Appellant says that the nature of the implications of drawing an adverse inference are much wider in this case as Dr Campbell's evidence 'goes to the ultimate/critical issue of the Respondent's whole case'.[24]
  1. [32]
    The Appellant calls on the Commission to draw the following specific adverse inferences:[25]
  • Had Dr Campbell given evidence, her evidence would likely have supported the Appellant's contentions in paragraphs 11(h)(i)-(iii) of the FASFC and not assisted or supported the Respondent in respect of the contentions made in paragraph 80 of the RSFC.
  • Had Dr Campbell given evidence, her evidence would not have supported the contention that the Appellant had sustained a work-related injury within the meaning of section 32(1) of the WCRA on 10 May 2021.
  • The Respondent's case critically relied upon the evidence of Dr Campbell for the alleged "cut off date" of 10 May but the Respondent failed to call Dr Campbell to establish that cut off date. The only inference that can be drawn is that the Respondent well knew that had Dr Campbell been called she would not have been agreeable with that critical proposition which forms the whole basis of the belated "technical defence" asserted by the Respondent.
  • That had Dr Campbell given evidence, her evidence would not have supported the Respondent's case (that was put to Dr Christensen) i.e. that the Appellant's psychiatric condition/injury as at 15-16 May was no more than a "morphing" of the depression diagnosis Dr Campbell is alleged to have made on 10 May. The Commission ought draw the inference that Dr Campbell would not have supported that contention.
  1. [33]
    The Appellant then makes extensive submissions about the prejudice and unfairness caused to the Appellant through the Respondent's 'failure to call Dr Campbell'.[26] This is in part because the Appellant says that the failure to call Dr Campbell has left him in the position where he had no opportunity to challenge the Respondent's case.
  1. [34]
    The Appellant says that no criticism ought to be made of the Appellant failing to call Dr Campbell. The Appellant says that although the evidence of Dr Campbell may have been of some relevance in the Appellant's case, it was not necessary to establish the Appellant's case. The Appellant says that the evidence of Drs Ballard, Cavaye, Kwon, Oh and Christensen were sufficient to do so. The Appellant says that by contrast, the Respondent's case relied upon calling Dr Campbell and that the Respondent cannot establish the case it has conducted without calling Dr Campbell.
  1. [35]
    The Appellant goes on to submit that Dr Christensen's expert opinion regarding Mr Lee's condition as at 10 May 2021 is inadmissible.[27]
  1. [36]
    As a result of the above, the Appellant submits that the Commission cannot find the Appellant was suffering a psychiatric/psychological 'injury'/condition as at 10 May 2021.[28] Further, the Appellant says that there is no evidence to support that the alleged depression diagnosed on 10 May 2021 was work-related or constituted an 'injury' within s 32, this is in part because it says Dr Campbell's notes are inadmissible.[29]
  1. [37]
    Further, the Appellant says that to the extent the Respondent refers to the 'medical evidence of Dr Lee' (Campbell), there is no such evidence as it is not admissible.[30]

Respondent's submissions

  1. [38]
    The Respondent says that any submission by the Appellant that its 'whole case is entirely reliant' on Dr Campbell's diagnosis of depression on 10 May or that the diagnosis is the 'fundamental basis' for the Respondent's defence overstates the case.[31] The Respondent says that Dr Campbell's evidence is 'but one of the matters the respondent in fact relies upon'.[32]
  1. [39]
    The Respondent says that the contention raised by the Appellant that Dr Campbell's diagnosis and consultation note cannot be relied upon as she was not called by the Respondent is 'curious when regard is had to the fact that the appellant tendered into evidence (without objection) the consultation note of Dr Lee (Campbell) dated 10 May 2021. Further, the Respondent says that in any event, the submission advanced by the Appellant is 'legally misconceived and should be rejected by the Commission'.[33]
  1. [40]
    The Respondent notes that the Appellant tendered a document headed 'Conference Memorandum of Dr Christensen'[34] and that this memorandum arose from a discussion the Appellant's counsel had with Dr Christensen in preparation for the hearing. The Respondent notes that Dr Campbell's consultation note was attached to the exhibit and that Dr Christensen provided evidence[35] having specific regard to the contents of Dr Campbell's consultation note.
  1. [41]
    The Respondent submits the following:[36]

Importantly, and of significance, the tendering of the documentation was not qualified by the appellant in any way,[37] such as it was received into evidence for a limited purpose only – for example, as evidence of the fact that it was written by Dr Campbell, but not as evidence of the truth of the assertions contained in it. Once the consultation note was tendered into evidence on an unqualified basis, there was no requirement for the respondent to prove the contents contained therein. Thus the consultation note went into evidence for all purposes. It is simply legally incorrect to assert that the consultation note constitutes inadmissible documentary hearsay. Put simply, the appellant totally overlooks the fact how the consultation note became evidence – namely it was tendered by the appellant himself.

  1. [42]
    The Respondent then turns to the Appellant's reliance on the rule in Jones v Dunkel to support the contention that the Respondent was required to call Dr Campbell. The Respondent says that while the trial plan referred to the Respondent's intention to call Dr Campbell, it is not bound by a trial plan to call a witness if mentioned in such a plan.[38]
  1. [43]
    The Respondent submits that the Appellant's submission that the Respondent has not provided any explanation as to its failure to call Dr Campbell completely overlooks the fact that the Appellant had tendered, and by extension, relied upon the consultation note of 10 May 2021.[39] The Respondent repeats its earlier submission that once the consultation note went into evidence, there was no requirement for the Respondent to prove the contents as it was in evidence for all purposes and unqualified. The Respondent goes on to submit:[40]

…There was no onus on the respondent to provide any explanation as to why Dr Campbell was not called. The respondent was therefore legally entitled to rely upon the contents of the consultation note. As a matter of "legal principle", if in fact any such principle exists, the appellant points to no authority to support its contention that the respondent was required to call Dr Campbell in the circumstances the consultation note actually because (sic) evidence in the proceedings. That said, the appellant's contention is simply wrong at law.

  1. [44]
    In response to the Appellant's submission that it was imperative to the Respondent's case to call Dr Campbell, the Respondent says that it is not apparent why Dr Campbell needed to be called when the consultation note of 10 May 2021 was tendered by the Appellant and then became evidence.[41]
  1. [45]
    The Respondent says that any submission made by the Appellant that the Commission ought draw the inference that Dr Campbell's evidence would not have assisted the Respondent's case is completely without substance and amounts to unfounded speculation.[42]
  1. [46]
    With regard to any prejudice or unfairness the Appellant says it has suffered because it did not have the opportunity to challenge the Respondent's case, the Respondent says that the Appellant had been on notice of its case for a considerable period of time. The Respondent says that the Appellant was 'always alive to a contention to be raised by the respondent that he had depression 'on or about 10 May 2021' because he has specifically addressed this point in his further amended statement of facts and contentions'.[43]
  1. [47]
    The Respondent says that its contentions in this regard are identical to those in its original Statement of Facts and Contentions dated 16 February 2023 and filed in the Commission. The Respondent says that the Appellant has been on notice of that aspect of the Respondent's case since that date. The Respondent says that it was a matter for the Appellant to address the contentions raised by the Respondent and that he in fact did so, by tendering the consultation note of Dr Campbell and expressly seeking the opinion of Dr Christensen as to the content of Dr Campbell's notes.[44]
  1. [48]
    The Respondent notes that its' Statement of Facts and Contentions had stated that Mr Lee's condition as at 10 May 2021 'was caused by personal stressors and did not arise out of his employment'.[45] The Respondent says that that position was before the evidence of Mr Lee and the subsequent opinions expressed by Dr Christensen as to Mr Lee's medical condition as at 10 May 2021. The Respondent says that the evidence now plainly demonstrates that Mr Lee's condition was caused by workplace stressors arising out of or in the course of his employment. The Respondent says that the state of the evidence arising out of the hearing supports the contention it advances and that it is entitled to do so, and the Appellant is in no way prejudiced.[46]
  1. [49]
    The Respondent says that any submission about the things that Dr Campbell would have given evidence about had she been called to give evidence is speculative and irrelevant and cannot be accepted by the Commission.[47] The Respondent submits that if the Appellant wanted to put the medical evidence of other witnesses to Dr Campbell as part of his case, it was a matter for the Appellant to call Dr Campbell. The Respondent says that if the Appellant wanted to put certain matters to Dr Campbell, it must have been a part of the Appellant's case, however the Appellant did not seek to press the matter.
  1. [50]
    The Respondent says that Mr Lee gave evidence about his recollection of the consultation with Dr Campbell and that, in large part, confirmed or agreed with what was stated by Dr Campbell in the consultation note.[48]
  1. [51]
    The Respondent says that it is entitled to rely on the consultation note in Exhibit 25 and what was stated by Dr Campbell in Exhibit 14. The Respondent says that each document 'speaks for itself' and there is no reason to doubt the veracity and accuracy of what Dr Campbell has recorded in those exhibits.[49]
  1. [52]
    The Respondent submits that if Mr Lee was in some way prejudiced by the Respondent not calling Dr Campbell, or that this had caused unfairness, it was open to the Appellant to call Dr Campbell or make an application for an adjournment in order to call Dr Campbell.
  1. [53]
    Regarding the purported inadmissibility of aspects of Dr Christensen's evidence which were based on Dr Campbell's consultation notes, the Respondent says that this contention must be rejected. The Respondent says that this misunderstands the rules of evidence and fails to appreciate that the consultation note was tendered into evidence by the Appellant for all purposes.[50]
  1. [54]
    The Respondent also says that it was a matter for the Appellant to make any objections to the questions being asked of Dr Christensen during the course of his cross-examination and that this was not done. The Respondent says that the evidence given by Dr Christensen during his cross-examination is evidence the Commission can take into account.
  1. [55]
    The Respondent says that it is not through the course of written submissions that objections to evidence can now be made in circumstances where no such objections were made during the course of the trial. The Respondent says that the hearing has ended and the evidence before the Commission is that of various witnesses called and exhibits which were tendered. The Respondent says that the approach now being adopted by the Appellant is 'simply inconsistent with trial advocacy and wrong at law'.[51]
  2. [56]
    The Respondent submits that the Appellant is 'simply dissatisfied' with various aspects of the evidence given by Dr Christensen which does not support his case and, because of that, he now impermissibly seeks to raise objections. The Respondent submits:[52]
  1. …The artificiality of the appellant's approach is drawn out by the submission made by the appellant that:
  1. "To the extent Dr Christensen makes reference to the consultation note of 10 May 2021 of Dr Campbell in his memorandums of 18.12.23 [exh. 25] and 26.9.24 [exh. 26] it is clear he has no personal knowledge of the appellant's psychiatric condition as at 10 May and is wholly relying upon the hearsay entry of Dr Campbell"[53]
  1. Yet, that is the precise task the appellant's counsel sought to conference with Dr Christensen about, i.e. Dr Lee's 10 May 2021 consultation note. So much is apparent that when tendering exh. 25, the appellant's counsel asked Dr Christensen "do the contents of [the memorandum dated 18 December 2023] represent your professional opinion in respect of this matter" with Dr Christensen stating "that's correct, yes".[54] Further, Dr Christensen was cross examined about the consultation note, and as an expert, was entitled to offer a view. That is precisely what he did without any objection being taken to the questioning. As an expert, Dr Christensen was in a position to make an assessment of the evidence contained in the consultation note which is self-evident from what he commented upon as set out in exhs. 25 and 26. The fact he had no personal knowledge of the appellant's condition as at 10 May 2021 is wholly irrelevant to him being able to form and offer an expert opinion. Again, the appellant's complaint is simply wrong as a matter of law and must be rejected.
  1. [57]
    The Respondent says for the reasons above, any contention that Dr Campbell's consultation note is not admissible and that Dr Christensen's comments in consideration of the consultation note are inadmissible is wrong.[55]

Consideration re: evidence relating to Dr Campbell and the evidence of Dr Christensen as it relates to Dr Campbell's consultation note

  1. [58]
    As has been canvassed at length above, the consultation note of Dr Campbell was attached to the Conference Memorandum of Dr Christensen dated 18 December 2023. The Conference Memorandum, including attachments was tendered by the Appellant during Dr Christensen's examination-in-chief. It is Exhibit 25. There was no qualification made regarding the Conference Memorandum or the attachments. They became a part of the evidence before the Commission. Dr Christensen was taken to the attachment to his Conference Memorandum and asked specific questions about Dr Campbell's file note. No objections or qualifications were raised by the Appellant during cross-examination. Mr Lee's representative did not have any questions of Dr Christensen in re-examination.
  1. [59]
    It seems to me that the consultation/progress notes of Dr Campbell relating to Mr Lee's attendance at the surgery on 10 May 2021 have been properly tendered through the evidence of Dr Christensen, who had been asked to examine them and comment on them in preparation for the hearing. The consultation note is in evidence and it is open to both parties to rely upon it. It has been tendered for all purposes.
  1. [60]
    I decline to draw a Jones v Dunkel inference regarding the failure of the Respondent to call Dr Campbell. While Dr Campbell was listed on the trial plan as a witness for the Respondent, this does not compel the Respondent to call Dr Campbell. It is not unusual for a medical witness to not be called if their report or consultation notes are tendered without objection or by consent. I do not think the Respondent wishes to rely on anything other than the written content of the consultation note and medical certificates which were tendered by the Appellant. As the Respondent submits and I accept, these documents 'speak for themselves'.
  1. [61]
    The Respondent is right to point out that it has always contended that Mr Lee had suffered a psychological injury as at 10 May 2021. While the Respondent's initial argument was that the significant contributors to that psychological injury were personal stressors and not work-related, I appreciate that having heard the evidence at hearing, the Respondent has changed its position and accepted that any psychological injury diagnosed on 10 May 2021 arose out of work where work is a significant contributing factor.
  1. [62]
    In circumstances where the Appellant understood that the Respondent contended that 10 May 2021 was the date of injury, I find it was open to the Appellant to call Dr Campbell in the event it had questions for her about the evidence and diagnoses of the other expert medical witnesses. I have reviewed the transcript and note that Mr McLeod provided an opening of the Respondent's case and discussed the witnesses the Respondent intended to call. If Mr Lee's representative wished to make a request at that time that the Appellant call Dr Campbell, the Commission could have adjourned to allow arrangements to be made.
  1. [63]
    I am unwilling to speculate as to what Dr Campbell's evidence would have been, beyond what is in the documents which are already in evidence. I do note, however, that Mr Lee's own evidence about his visit to Dr Campbell on 10 May 2021 does not depart in any significant way from the contents of the consultation note.
  1. [64]
    The consultation note of Dr Campbell and the two medical certificates she provided to Mr Lee are admissible evidence the Commission will consider. I decline to draw any adverse inference against the Respondent on the basis that it did not call Dr Campbell. I will proceed to consider the matter on that basis.
  1. [65]
    Dr Christensen's evidence as it relates to the consultation note of Dr Campbell is also admissible.

What was the date of injury?

  1. [66]
    There is a disagreement between the parties as to the date of injury.
  1. [67]
    There are a range of reasons why it is important to determine the date of injury in deciding a workers' compensation appeal. Specifically in this case, the Respondent has conceded that the management actions which occurred on 15 and 16 May 2021 were unreasonable. In the event I determine the date of injury to be 15 or 16 May 2021, the Appellant will, therefore, succeed. However, if I determine the date of injury to be 10 May 2021, as contended by the Respondent, the appeal then requires an examination of the events which occurred over a period from 12 February to 10 May 2021 and a further consideration of whether the injury arose from reasonable management actions or Mr Lee's perception of management action.

The Respondent argues that the date of injury is 10 May 2021

  1. [68]
    The Respondent says that when regard is had to the medical evidence, the date of injury is 10 May 2021. It was on 10 May 2021 that Mr Lee's psychological/psychiatric injury was diagnosed by his general practitioner Dr Campbell. The Respondent refers to Groos v WorkCover Queensland,[56] followed in Kelly v Workers' Compensation Regulator[57] as authority that a DSM-5 diagnosis is not required to meet the definition of injury in s 32(1) of the WCRA.
  1. [69]
    The Respondent submits that the evidence of Drs Campbell and Christensen wholly supports that the date of Mr Lee's decompensation is 10 May 2021. The Respondent notes that Dr Christensen's evidence was not challenged on this point by way of re-examination.
  1. [70]
    On that basis, the Respondent says that 10 May 2021 signifies a cut-off point after which the evidence of any stressors contributing to Mr Lee's injury are no longer relevant. This was the case argued by the Respondent at the hearing.[58]
  1. [71]
    The Respondent turns to Mr Lee's attendance on his general practitioner, Dr Campbell on 10 May 2021.
  1. [72]
    It is convenient for me to set out the Respondent's submissions regarding the visit to Dr Campbell as they contain detailed references to the transcript:[59]
  1. 92.
    The appellant consulted his general practitioner, Dr Sang-Hee Lee or Dr Campbell, on 10 May 2021. The appellant accepts that he was asked to give a history of certain matters.[60] The consultation note states (in part) "patient states he has been feeling depressed for the (sic) last 1+ year …'.[61]
  1. 93.
    The appellant's evidence was that "I don't remember saying I was depressed to the doctor" but says he remembered the doctor asking him about his symptoms and he 'said I have a stress from work" which started "about last – from last year".[62] When asked if he told the doctor what the stress from work he was referring to, the appellant said "I don't recall that".[63] The appellant stated that "there were occasions where I couldn't quite understand the doctors' questions".[64] When asked what the questions related to, he responded, "sometimes I couldn't understand the questions themselves, so I don't recall what those questions were".[65] When the appellant was asked if it occurred during the consultation that question (sic), he could not understand that question why did he not ask her to repeat the question or explain differently the appellant answered (sic) "a lot of the time I'm not too sure I actually understood the questions accurately".[66]
  1. 94.
    The appellant agreed that he told the doctor "with COVID situation it was putting a stop to his – your plans to go back to Korea to be with his – your family"[67] and he had sleep issues.[68] He could not remember informing the doctor that his alcohol was excessive, and he was exercising regularly.[69] He stated that he did not say that he was eating healthier.[70] The appellant agreed with the balance of what is recorded under the heading HO P/C of the doctors consultation notes except that he could not recall whether he was asked about previous self-harm or suicidal thoughts or saying he felt a "bit helpless".[71]
  1. 95.
    Of significance, the appellant remembered discussing with the doctor:
  1. (a)
    some potential counselling;[72]
  1. (b)
    "told me it's to do with – with my mental health";[73]
  1. (c)
    potentially going to see a Korean counsellor, Rose Kwan;[74]
  1. (d)
    "seeing that counsellor might be quite beneficial for you";[75] and
  1. (e)
    He could not remember if he went to see a counsellor what it would be beneficial to.[76]
  1. 96.
    The appellant stated that he did not intend to see a counsellor and he could not recall the doctor informing him that he may have reactive depressive symptoms or suffering from depression or gave a diagnosis.[77] When pressed further on this matter, the appellant conceded that "we did talk about depression".[78] He further conceded that there was discussion about depressive symptoms.[79]
  1. 97.
    The appellant was taken to exh. 14, a letter certifying the views of Dr Lee arising from the 10 May 2021 consultation. He was not surprised with what was stated in the letter.[80] Furthermore, the appellant accepted that on 15 March 2021 he saw Dr Lee. The consultation record states (in part) "has multiple stresses around work as a full-time head chef at Sovereign Hotel" and the appellant had no doubt as to what was recorded because "I had a lot of stress from work, yes".[81]
  1. [73]
    The Respondent then turns to the evidence of Dr Christensen who was called by the Appellant. Dr Christensen interviewed Mr Lee on 1 December 2021 and provided a report on 10 December 2021.[82] After conferring with Mr Lee's legal representatives, Dr Christensen provided two memorandums, dated 18 December 2023[83] and 26 September 2024.[84]
  1. [74]
    Again, it is convenient for me to set out the Respondent's submissions regarding Dr Christensen's evidence here:[85]
  1. 99.
    In respect to the contents of exh. 24 Dr Christensen stated:
  1. (a)
    the appellant gave a history of events commencing on 15 and continuing until 16 May 2021;[86]
  1. (b)
    the appellant had stated there were some difficulties with Daley, previous abuse, threats of violence and a sense of intimidation, "the sort of backstory for the events from 15th and 16th and why Mr Lee…particularly sort of concerned about the behaviours";[87]
  1. (c)
    no time period was provided for when this previous event may have occurred, but "that was just giving background to the working relationship there".[88]
  1. 100.
    In respect to exh. 23, Dr Christensen commented on the consultation record of Dr Lee, dated 10 May 2021, and stated:
  1. "The attendance on the GP on 10 May sounds like the Appellant was getting a little bit depressed before the incident of 15 May [2021]".
  1. 101.
    Exhibit 24 records (having been asked to further comment on the 10 May 2021 consultation note and the provisional diagnosis of 'depression' by Dr Lee at that time):
  1. "…it appears that Mr Lee was experiencing psychological issues at the review of 10 May. But in my view, that would be more correctly classified as no more than an Adjustment Disorder at that stage. In doctor shorthand you might put that down as 'depression'…"
  1. 102.
    In cross examination, Dr Christensen gave the following evidence:
  1. "Right, but would it be fair to say on your reading of the doctor's consultation notes on the 10th of May 2021, as at that time period., Mr Lee had a psychological condition? ---It's – um – correct that he had a psychological condition and the provisional diagnosis of a reactive depressive symptom would fit with that. Right, okay. Just excuse me for one moment. So would it then be fair to way that as at the 10th of May 2021, Mr Lee had this condition you've just described as being an adjustment---? ---Mmm-hmm. ---disorder and then he reports to you of the incidents and what occurred on the 15th and 16th of May 2021 and---? ---Yes".[89] (underlining added)
  1. "…is it the case, and correct me if I'm wrong, but as at the 10th of May 2021, he's got a psychological condition?---Yes
  1. And then what has then transpired over a period of time when you saw him on the 1st of December of that year?---Mmmm-hmm.
  1. Has his condition got worse or was that the first occasion, in your view, there was an opportunity to properly diagnose what his condition was? Because---?---The---
  1. I probably put that badly but what I'm just trying to explore with you is that he's got a condition, a psychological condition?---Yes.
  1. But is hasn't gone away (sic), has it?---No, but it's actually gotten markedly worse and you see this in terms of the level of impairment. When he goes along on the 10th May, he's still out there working, he's still out there interacting with people and yes, he's talking about – um – going back – um – to Korea, feeling a bit depressed with COVID sort of interfering with – um – his life, but you're still talking about someone who is quite functional.
  1. Yes?--- If we fast forward to when I'm seeing him in December, we see someone who's not working, having trouble getting out of his home, feeling sort of hopeless, suicidal and really, as I said, you – you're talking about not only a marked worsening of severity, but the quality of hopelessness – um – and negativity is sort of markedly different. Um – I wouldn't have thought a GP would have – um – if he was seeing that particular behaviour, he wouldn't have been sending him home just with some Mobic for his shoulder.
  1. Right?---What we were seeing, sort of, later on was a much more severe illness and that was sort of reflected in the number of time (sic) he'd been see at Cooktown."[90]
  1. 103.
    Dr Christensen agreed in evidence that as at 10 May 2021, the Appellant had a psychological condition[91] being a depressive condition, "he has depressive symptoms which I would have called an adjustment disorder…based on the GP's notes…"[92] However, his condition "actually gotten markedly worse and you can see this in terms of the level of impairment".[93] Dr Christensen went on to state:
  1. "that he's got an adjustment disorder back when he see the GP. By the time I'm seeing him seven months down the track, we actually, have a condition called depression. It's not an aggravation, it's a different condition and much more severe and requiring hospital intervention and anti-depressants".[94]
  1. [75]
    The Respondent submits that when regard is had to the evidence of Drs Campbell and Christensen, the Appellant had an adjustment disorder as at 10 May 2021. Put simply, as Dr Christensen stated, as at 10 May 2021 the Appellant had a psychological injury that subsequently morphed into 'a condition called depression'.[95] For the purposes of his application for compensation, Mr Lee had an 'injury' for the purposes of s 32(1) of the WCRA as at 10 May 2021, (unless excluded by s 32(5)).[96]

The Appellant argues that the date of injury is 16 May

  1. [76]
    The Appellant says that its case must succeed because there is 'uncontested and uncontradicted' medical evidence that Mr Lee suffered a psychiatric injury and that the injury was caused by the events of 15 and 16 May 2021. Given the admission that Mr Lee's boss, Mr Webber's conduct on 16 May 2021 was 'taken in an unreasonable way' in connection with Mr Lee's employment, the reasonable management action defence is excluded.[97]
  1. [77]
    The Appellant says that the Respondent has failed to prove its case. The Appellant says it is significant that the Respondent failed to call Dr Campbell 'to prove her medical note of 10 May 2021 or her alleged diagnosis which is fatal to the Respondent's primary case.[98] I have dealt with this submission above and note that Dr Campbell's medical note is in evidence.
  2. [78]
    The Appellant says that any depressive symptomology existing as at 10 May 2021 (which it denies) did not constitute a work-related 'injury' within s 32(1) WCRA. With respect to symptomology as it corresponds with key dates, the Appellant makes further and alternative arguments which have been canvassed at paragraph [7] of these reasons for decision and will not be reproduced here.
  1. [79]
    The Appellant says Mr Lee is entitled to conduct his appeal as he did, and that he sustained an injury as a result of the events of 15 and 16 May 2021, decompensating shortly thereafter on 17 May 2021.[99]
  1. [80]
    The Appellant submits that in determining that case, the events prior to that date are of no relevance and that the Commission 'should pay no heed to events prior to 15 May 2021 at all when determining that case'.[100]
  1. [81]
    The Appellant submits that the Commission is required to determine whether the Appellant sustained an 'injury' within the meaning of s 32 WCRA on the dates alleged and that to the extent the Respondent contends to the contrary, it is incorrect.[101] The Appellant further submits that the Commission only needs to consider Mr Lee's alternative claims if the Commission is not satisfied that Mr Lee has established his primary case that the injury was sustained as a result of events of 15 and 16 May 2021.

Mr Lee's evidence about the events of 15 and 16 May 2021

  1. [82]
    Mr Lee's evidence regarding the emotional and psychological impact of his colleague Mr Daley's conduct on 15 May 2021 was that he was anxious, frightened, upset and sad. He said that he spent all night crying. With regard to physical symptoms, he said that his heart was beating and racing and that he couldn't breathe and was shaking all over' Mr Lee said he had a severe headache, couldn't get to sleep and had nightmares.[102]
  1. [83]
    With regard to a phone call Mr Lee received from Mr Webber on 16 May 2021, Mr Lee said that he was disappointed and felt that his reports to Mr Webber about Mr Daley were completely ignored. Mr Lee said that he had anxiety about having to work with Mr Daley that day and that his physical symptoms were getting worse.[103]
  1. [84]
    Mr Lee recorded conversations he had on the morning of 16 May 2021. Mr Lee said that Mr Daley had been racist and that his 'disgusting, obscene swearing and language' made him feel 'very stressed'. Mr Lee said that Mr Daley was aggressive and that this frightened him. Mr Lee said that he felt he had been ignored by Mr Webber, was angry, sad, and felt 'the whole thing was unfair'. Mr Lee said he felt humiliated.[104]
  1. [85]
    Mr Lee described his feelings during the meeting which happened at about 2.00pm on 16 May 2021 (which the Respondent has conceded is not reasonable management action). He said that Mr Webber's attitude towards him was very aggressive and rude and that he felt humiliated. Mr Lee recalled that Mr Webber banged on his desk. Mr Lee said this was scary and made him feel very anxious.[105]
  1. [86]
    Mr Lee also said that he felt Mr Webber forced him to work with Mr Daley on the night of 16 May 2021. He said he felt unsupported and that his anxiety was aggravated.[106]
  1. [87]
    With regard to what the Appellant says is Mr Lee's 'decompensation' on 16 May 2021, Mr Lee said he left work much earlier than normal on 16 May 2021 because of how uncomfortable he was feeling.[107]
  1. [88]
    Mr Lee was asked how he was feeling that night when he went back to his quarters. Mr Lee said that he was very anxious and that he continued to have flashbacks and thoughts about the things Mr Daley had said to him and the meetings with Mr Webber. He said that his heart was racing, his body was shaking and he couldn't breathe. He said he had a headache, couldn't sleep and had nightmares. Mr Lee said that mentally and physically he was exhausted.[108] Mr Lee said that he had not experienced symptoms like this before 15 May 2021.
  1. [89]
    Mr Lee said his symptoms were worse in the morning which prompted him to see a doctor. The Appellant notes that Mr Lee described the same symptoms as above when he attended on the Emergency Department at Cooktown Hospital on 17 May 2021.[109]
  1. [90]
    The Appellant submits that it is 'patent and self-evident' on the basis of Mr Lee's evidence that the events of 15 and 16 May 2021 had a 'significant and traumatic' effect upon Mr Lee's emotions and mental health. The Appellant says '(t)he Commission ought infer that the cumulative effect of the multiple verbal and physical insults to the Appellant would likely have increased the effect of the events upon him'.
  1. [91]
    The Appellant submits that each of the events were, as isolated events, sufficient to give rise to the psychiatric injury sustained by Mr Lee and that this is 'consistent with and contemporaneous to the Appellant decompensating and sustaining injury at that stage'.[110] The Appellant also notes that Mr Lee asserts that he did not have severe anxiety symptoms, or any anxiety symptoms, before 15 May 2021 and that there is no evidence to the contrary.[111]
  1. [92]
    The Appellant then turns to the medical evidence before the Commission.

Dr Ballard

  1. [93]
    Dr Ballard made notes of Mr Lee's attendance on the Cooktown Hospital Emergency Department on 17 May 2021.[112] Dr Ballard's note included the following:
  1. PC:
  1. Feeling stress/anxious.
  1. HPC:
  1. –Last few weeks feeling very stressed.
  1. –Difficult work situation.
  1. –Dispute with co-worker.
  1. –Reported verbal abuse to manager.
  1. –Has since been moved to different position but still working alongside alleged perpetrator.
  1. –Difficulty sleeping at night.
  1. –Ruminating about events at work.
  1. –Then has difficulty breathing, racing heart, etc. …
  1. –Feels stress is also affecting his mood.
  1. –No thoughts of harming self or others.
  1. –Does not feel safe attending work…
  1. –Requesting medical certificate for work.
  1. [94]
    The Appellant says that the record of these symptoms is of particular significance as they are consistent with the Appellant suffering extreme anxiety consistent with an anxiety disorder. Further, the symptoms are consistent with Mr Lee's evidence about how he was feeling at that time.[113]
  1. [95]
    Dr Ballard recorded that Mr Lee appeared 'slightly distressed when discussing issues at work' and noted that his blood pressure was high with 'stress being one cause of high BP'. Dr Ballard recorded her impression that Mr Lee was suffering anxiety and work-related stress. She provided Mr Lee with a medical certificate of incapacity for work from 17 May 2021 to 30 May 2021.
  1. [96]
    Dr Ballard gave evidence to the Commission via video link. She had no independent recollection of Mr Lee and so relied on her notes.
  1. [97]
    With regard to an exchange in cross-examination where it was suggested to Dr Ballard that she had not recorded the stressors causing Mr Lee's anxiety symptomology, the Appellant notes that Dr Ballard referred to her record of a difficult work situation, dispute with co-worker and reported verbal abuse to the manager. Dr Ballard said it would relate to that information.[114]
  1. [98]
    The Appellant argues it is evident from the content of Dr Ballard's note and from her clarification in evidence that she identified the stressors as being the events of 15 and 16 May 2021.
  1. [99]
    The Appellant says that Dr Ballard's evidence supports a finding that Mr Lee sustained an injury on 15–16 May 2021 and 'decompensated' on or about 15–17 May 2021. The Appellant argues that Dr Ballard's evidence demonstrates:[115]
  • The Appellant was suffering significant anxiety symptoms. (That included physical somatic symptomatology including racing heart and difficulty breathing).
  • The Appellant's anxiety symptoms were such that he was seeking medical help.
  • The Appellant's anxiety symptoms were related specifically to 'dispute with co-worker, reported verbal abuse to manager' and still being required to 'work alongside the perpetrator'. They clearly relate to the events of 15 and 16 May 2021.
  • The Appellant was requesting – and was granted – a medical certificate of incapacity for work consequent upon his anxiety symptomology. (This is consistent both with the Appellant feeling incapable of returning to work at that stage because of his anxiety symptoms, and with the assessing medical practitioner forming the view that he was incapable for work as a result thereof).
  1. [100]
    The Appellant submits that the above are consistent with the Appellant having: 'decompensated' at that stage; suffering a psychological injury at that stage; and that injury having been caused by the events immediately preceding the attendance on 15 and 16 May 2021.[116] The Appellant also says that Mr Lee had never previously suffered symptoms like these and had not previously attended Cooktown Hospital or any medical practice complaining of such symptoms.[117]
  1. [101]
    The Appellant also notes 'three factual errors' in Dr Ballard's record of Mr Lee's history. Firstly, where the note says that Mr Lee had seen his GP for the 'same symptoms', Mr Lee's evidence is that he did not have those symptoms when he saw Dr Campbell. Further, Mr Lee says that he was not referred to a Korean-speaking mental health service and Dr Ballard's entry to that effect was incorrect. Where Dr Ballard's note says that Mr Lee had been feeling very stressed for the last few weeks, Mr Lee says this is not true and thinks should have referred to the 'last two days' or 'last few days'.[118]
  1. Dr Campbell
  1. [102]
    The Appellant says that the only admissible evidence regarding Mr Lee's attendance on Dr Campbell on 10 May 2021 is from Mr Lee. This is because Dr Campbell was not called to give evidence at the hearing.[119] I have dealt with this matter above. The consultation note of Dr Campbell is admissible.
  1. [103]
    Mr Lee's evidence regarding his visit to Dr Campbell on 10 May 2021 was that he sought a border pass to travel to South Korea and that he required a medical certificate or medical letter in order to get one. Mr Lee said that when he went to Dr Campbell he was not feeling depressed and that he did not get treatment for depression at that time. Mr Lee did recall that he had told Dr Campbell about a conversation he had had with Ms Bonnie Lucas, the wife of one of the Sovereign's owners, Mr Sam Lucas. He recalled saying that he had told Ms Lucas he was experiencing: job stress, no appetite, indigestion and problems with people working in the kitchen. Mr Lee said that Ms Lucas is a psychologist and said to him that it sounded like he might have mild depression. Ms Lucas had suggested it might be best for him to see a doctor. Mr Lee said that he had thought he should see a doctor to get a medical certificate for a border pass.[120]
  1. [104]
    Mr Lee recalled that he asked Dr Campbell for, and received, a medical certificate for a border pass.[121] He said that he did not obtain a certificate for time off work or incapacity from work from Dr Campbell at the appointment on 10 May. Mr Lee said he did not need a certificate for time off work. He also said that he did not have any time off work on 10 May or between 10 May and 15 May because of any health issue.
  1. [105]
    Under cross-examination regarding his attendance on Dr Campbell, Mr Lee said that he did not recall being diagnosed with depression. He recalled discussing depression with Dr Campbell. Mr Lee also recalled Dr Campbell suggesting that seeing a Korean-speaking counsellor might be beneficial for him but that he was not given a referral.
  1. [106]
    The Appellant says that it is clear from Mr Lee's evidence and cross-examination that he did not attend on Dr Campbell on 10 May 2021 for 'depression' or any depressive symptomology but that he attended for a medical certificate for a border pass, which he received. The Appellant says that Mr Lee was not diagnosed with depression on 10 May, albeit there was some discussion about depression.[122]
  1. [107]
    The Appellant reiterates that any reference in Dr Ballard's notes to Mr Lee seeing Dr Campbell on 10 May 2021 for the 'same symptoms' must be incorrect as Dr Campbell does not record symptoms such as: 'ruminating about events at work; difficulty breathing and racing heart, feeling stress, which is affecting mood, not feeling safe attending work'. The Appellant also says that the consultation note of Dr Campbell makes no reference to Mr Lee needing a medical certificate for work incapacity. The Appellant also repeats its submission that the notes are incorrect where they record that Mr Lee had been 'feeling very stressed' for the 'last few weeks' as there is no evidence of the anxiety symptoms of the type he presented with on 17 May being present on 10 May. The Appellant also says that it was incorrect to record that Mr Lee had been referred to a Korean-speaking mental health service because he had not.[123]
  1. Dr Cavaye
  1. [108]
    Dr Cavaye saw Mr Lee at the Cooktown Hospital Emergency Department on 20 May 2021. She identified the triage note[124] which noted that Mr Lee presented 'feeling his BP is too high'. The notes stated: 'Feeling anxious. C/o body shaking. C/o headache. Lots of stress at work currently. …? anxiety. Wakes up several times a night – head racing and unable to breathe'.
  1. [109]
    The Appellant says that the attendance at the hospital on 20 May 2021 is consistent with Mr Lee continuing to experience significant somatic anxiety symptoms.[125]
  1. [110]
    Dr Cavaye's progress notes of the hospital attendance on 20 May 2021 state:[126]

20/05/21 anxiety "36M anxiety and panic attacks related to stress at work".

Very heightened and wanted medical check for high blood pressure.

Has link in with GP tomorrow and next week. …is off on medical leave from work.

Poor sleep, has been commenced on sleeping tabs by GP.

Apathetic and tired.

Denies suicidal ideation.

PMH nil…

Exam:

Appears anxious but interactive, good eye contact.

BP 180/110 automatic, 160/90 manual.

Help seeking.

Denies suicidal ideation or plan.

Imp: acute stress reaction. No sciatic features or suicidal ideation.

…will follow up with GP tomorrow.

  1. [111]
    The Appellant submits that based on the triage note and the notes of Dr Cavaye, the Commission would find that as at 20 May 2021, Mr Lee was continuing to suffer the types of symptoms he had complained of three days earlier on 17 May 2021. Mr Lee appeared 'very heightened' and Dr Cavaye recorded an impression that he had sustained an 'acute stress reaction'.
  1. [112]
    Dr Cavaye gave evidence at the hearing. Dr Cavaye clarified that the meaning of 'very heightened' was that it was an observation of how the patient is feeling or how the patient appears at the time and gave the example of the patient being 'agitated or pacing or something like that'.[127] Dr Cavaye said that an 'acute stress reaction' is a person's physical or emotional reaction to a stressful event. Dr Cavaye said that it may not satisfy the time criteria for a diagnosis but it is an acute stress reaction to stress that has recently happened.[128] In cross-examination, Dr Cavaye said that the acute stress reaction was 'likely related to anxiety and panic attacks related to stress at work'.
  1. [113]
    The Appellant says that this evidence is consistent with a causative link from the events of 15 and 16 May 2021, with decompensation evident at the first attendance at hospital on 17 May 2021.
  1. Ms Rose Kwon
  1. [114]
    Ms Kwon is a Korean-speaking psychologist who counselled Mr Lee on three occasions: 15 June; 13 July; and 28 July 2021. After the first occasion, Ms Kwon issued a report on 22 June 2021.[129]
  1. [115]
    Ms Kwon's report recorded that Mr Lee's 'results and presentations suggest a provision (sic) diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood'. Ms Kwon's subsequent memorandum of evidence dated 2 May 2024,[130] stated that she did not diagnose Mr Lee with PTSD or a generalised anxiety disorder in June 2021 as she thought it was too early to classify it as PTSD and that the anxiety was not generalised but was specific to the events of 15 and 16 May 2021.[131]
  1. [116]
    The Appellant specifically refers to Ms Kwon's memorandum of evidence[132] in which she says she could identify a particular stressor, being the incident of 15-16 May 2021 and Mr Lee's reaction was to that stress event. Ms Kwon says she cannot identify a precise date of decompensation, but said it was as a result of the events that happened on 15 and 16 May 2021 and so it was after that.[133]
  1. [117]
    The Appellant notes that Ms Kwon's evidence was not challenged and she was not required for cross-examination. On that basis, the Appellant says the Commission will accept her evidence regarding the Appellant having sustained a psychiatric injury as a result of the events of 15 and 16 May 2021.[134]
  1. Ms Min Kyung Oh
  1. [118]
    Ms Oh is a registered psychologist who speaks Korean. Between 27 September 2021 and June 2022, Ms Oh had ten counselling sessions of one hour duration with Mr Lee.[135]
  1. [119]
    Ms Oh's notes state that in the first session, Mr Lee set out the detail of the incidents of 15 and 16 May 2021.[136] Ms Oh also recorded a range of psychological symptoms. The Appellant says it is notable that in cross-examination, Ms Oh stated she had formed the view at the first session on 27 September 2021 that the Appellant was suffering PTSD as a result of the events of 15 and 16 May 2021.[137]
  1. [120]
    Further with regard to Ms Oh's opinion set out in the memorandum of 3 May 2024, the Appellant notes that she opines, among other things:
  • It is my clinical opinion that Kwang was suffering post-traumatic stress disorder.
  • It is my clinical opinion that his PTSD developed as a result of the events of 15 and 16 May to which he was exposed.
  • After the events of 15 and 16 May 2021 he was clearly no longer able to cope.
  • The records of 17 and 20 May…are consistent with Kwang having sustained PTSD as a result of the events of 15 and 16 May and becoming symptomatic with significant anxiety-related symptoms referred to at the attendance on 17 May.
  1. [121]
    The Appellant says that Ms Oh was unwavering in her conclusions under cross-examination[138] and that her evidence was consistent with the conclusions drawn by Dr Christensen.
  1. Dr Christensen
  1. [122]
    Dr Christensen's evidence is also addressed in the Respondent's submissions above (see [73]–[75]). Dr Christensen's evidence in chief consisted of: Report to WorkCover Queensland 10 December 2021;[139] Dr Christensen's conference memorandum of 18 December 2023;[140] and Dr Christensen's further conference memorandum of 26 September 2024.[141]
  1. [123]
    The Appellant notes that Dr Christensen was the only expert psychiatrist called with respect to the nature of the injury suffered by Mr Lee and its causation. The Appellant says that Dr Christensen was not a psychiatrist engaged by the Appellant and that he was engaged by WorkCover to assess whether Mr Lee had sustained a psychiatric injury and if so, whether it arose out of or in the course of Mr Lee's employment. The Appellant notes that Dr Christensen determined that both of those matters were satisfied.[142]
  1. [124]
    After the initial attendance on 1 December 2021, Dr Christensen recorded the 'history of presenting complaint' as racial abuse Mr Lee had been subjected to on 15 May 2021; a threat by his co-worker to hurt Mr Lee's girlfriend; and verbal abuse and threats of violence having been reported to his general manager. Dr Christensen also recorded that Mr Lee had said since that time he had experienced periods of anxiety where he feels shaky, sweaty and has an increased heart and respiratory rate. Dr Christensen recorded that Mr Lee had had such a response on several occasions during the interview, especially when playing the audio recording of being abused.
  1. [125]
    Dr Christensen assessed Mr Lee as suffering two diagnoses: 1. Major depressive episode, severe and 2. PTSD. Dr Christensen opined that both conditions were caused by the events of 15 and 16 May 2021.[143]
  1. [126]
    The Appellant emphasises that Dr Christensen has diagnosed two different and separate disorders. His conference memorandum states:[144]
  • The two diagnoses i.e. the PTSD and the major depressive episode are quite different and separate psychiatric injuries.
  • It is not uncommon to see a depression developing out of the context of a PTSD but it does not work the other way around. You do not get PTSD from depression.
  • I formed the view that the event described on 15 May 2021 caused the Appellant to suffer the post-traumatic stress disorder.
  1. [127]
    The Appellant says that it is important to note that Mr Lee suffered a separate injury of PTSD in rebutting the Respondent's contention that Mr Lee already had sustained a psychiatric injury in the form of a depressive illness as at 10 May 2021. The Appellant says that Dr Christensen's evidence is categorical in its explanation that PTSD is a new, different and separate disorder from any alleged pre-existing disorder.[145]
  1. Appellant's submission on injury and causation
  1. [128]
    The Appellant submits that:[146]

…the contemporaneity of onset of the Appellant's anxiety symptomology (including physical symptomology) and the attendance on 17 May 2021 (and for that matter 20 May 2021) is entirely consistent with the Appellant's symptoms and psychiatric injury having been sustained as a result of the immediate preceding events on 15 and 16 May 2021, and with the Appellant having 'decompensated' on or about 17 May 2021. The contemporaneity of seeking medical assistance of the nature sought is strikingly cogent evidence with respect to causation.

  1. [129]
    The Appellant submits that the medical evidence is entirely consistent in attributing Mr Lee's mental health injury to the incidents of 15 and 16 May 2021.
  1. [130]
    The Appellant notes Dr Christensen's diagnosis of PTSD arising from the conduct of Mr Daley on 15 May. The Appellant says that Dr Christensen is a psychiatrist and there is no reason to doubt his evidence. Dr Christensen is the best qualified person to comment upon the nature and extent of psychiatric injury sustained and causation.
  1. [131]
    The Appellant says it is significant that the Respondent called no medical evidence to the contrary. The Respondent did not call Dr Campbell, upon whose opinion the Respondent seeks to rely to contest or contradict the evidence of others that Mr Lee's condition was caused by the events of 15 or 16 May 2021. However, for reasons discussed above, I have determined that Dr Campbell's consultation notes and medical certificate form a part of this evidence in the matter and that the Respondent is able to rely on the contents of those documents.
  1. [132]
    The Appellant submits that 'unless, for some extraordinary reason', the Commission rejects the whole of the consistent medical evidence that both the nature of the injury sustained by the Appellant, including both PTSD and Major Depressive Disorder, has been established; and causation of the injury from the subject events on 15 and 16 May 2021 have also been established.
  1. Respondent's submissions in reply regarding date of injury
  1. [133]
    The Respondent's reply addresses the Appellant's submission that there is no evidence of Mr Lee having sustained a work-related injury and that he decompensated on 10 May 2021 and that the clear and compelling evidence is that Mr Lee decompensated on 17 May 2021.
  1. [134]
    The Respondent notes that prior to visiting Dr Campbell on 10 May 2021, Mr Lee agreed that he had discussed a number of matters with Ms Lucas on 6 May 2021 including that: he had challenges as a head chef; he complained about his workload to her and that it was causing him stress, some staff did not follow rules; and he was very stressed because Mr Daley was being rude and aggressive to him in the kitchen.[147]
  1. [135]
    In Mr Lee's evidence-in-chief, he said that he had a conversation with Ms Lucas on 6 May 2021 where he told her he had job stress and that he had problems with people working in the kitchen.[148] Mr Lee recalled that Ms Lucas had said to him that it sounded like he had mild depression.[149] Mr Lee stated that he discussed a range of work-related challenges he was facing and said that because of those stressors, he was experiencing headache and sometimes indigestion.[150] Mr Lee also said:[151]

So that's when Bonnie Lucas said, I'm a psychologist as well. And she – and then she said, it sounds like you might have a very mild depression. And she said, well, during this COVID-19, so many people have depression so, you know, it might be best if you see a doctor. So that's when – well, I was thinking to myself, yeah, I must see a doctor to get medical certificate.

  1. [136]
    While Mr Lee says that he was obtaining a medical certificate from Dr Campbell to get a border pass, the Respondent submits that the real reason he went to Dr Campbell was due to his workplace stress. Mr Lee did receive a medical certificate from Dr Campbell to support his application for a border pass. That certificate states:[152]
  1. 10 May 2021
  1. This is to certify that I have today examined or spoken to:
  1. Mr Kwang Lee,
  1. Co Post Office 128 Charlotte St,
  1. COOKTOWN 4895
  1. I have assessed and been seeing Kwang Lee at our practice for three months.
  1. He suffers from mental health issues of moderate depression which in turn is affecting his medical physical health.
  1. Currently with his lack of support of family in Australia, he is finding it even more difficult in his treatment of depression. In my medical opinion, Kwang Lee's mental health will be significantly improved with the support of his family in South Korea for which he is trying to acquire a border pass.
  1. [137]
    While the Appellant submits that while there was discussion about depression on 10 May 2021, he was not diagnosed by Dr Campbell with depression on that date, it is clear from the medical certificate issued that day (and set out just above) that Dr Campbell 'assessed' Mr Lee and certified that he 'suffers from mental health issues of moderate depression'.[153]
  1. [138]
    The Respondent points to the evidence of Dr Christensen which supports the fact that Mr Lee had a psychiatric injury as at 10 May 2021.
  1. [139]
    The Respondent notes with regard to its line of questioning as to whether the condition it says Mr Lee had on 10 May 2021 had subsequently morphed into something more serious:[154]

On the plain evidence of Drs Campbell and Christensen, the appellant had depressive symptoms as at 10 May 2021, which Dr Christensen referred to as an adjustment disorder.[155] The evidence of Dr Christensen was that the appellant subsequently developed a psychological – "we actually have a condition called depression".[156]

As Dr Christensen stated, it was not an aggravation of his condition as at 10 May 2021, as it was more severe.[157] Accordingly, the respondent notes the evidence of Dr Christensen in respect to the nature of the appellant's psychological conditions over a period of time. What is clearly demonstrated by the evidence of Dr Christensen is that the appellant had an injury on 10 May 2021 and had a different psychological condition some several months later.

  1. Consideration – Date of injury
  1. [140]
    Having determined that the medical certificate issued on 10 May 2021 and the consultation notes of Mr Lee's attendance on Dr Campbell are in evidence, it is clear that as of 10 May 2021, Mr Lee was suffering from a psychological condition. Such a conclusion is inescapable. Mr Lee was provided with a medical certificate which noted that Dr Campbell had assessed Mr Lee and that he was suffering from 'mental health issues of moderate depression'. I am satisfied that this is a diagnosis for the purposes of identifying whether Mr Lee had a personal injury on 10 May 2021.
  1. [141]
    The consultation notes of Dr Campbell indicate that the presenting condition was 'mental health review'. Dr Campbell noted 'reactive depressive symptoms' and 'depression' in the notes. Regardless of whether the visit was for the purpose of seeking treatment or the purpose of receiving a medical certificate to support his application for a border pass, the consultation was about Mr Lee's mental health and resulted in a medical certificate certifying that he was suffering from mental health issues of moderate depression.
  1. [142]
    When Dr Christensen provided his initial report to WorkCover, he had not been availed of the consultation note of Mr Lee's attendance on the GP. In a conference held for the purposes of preparing for hearing, Dr Christensen was provided with and asked to comment on the consultation notes of the attendance on the GP. In the consultation note, Dr Christensen says 'the attendance on the GP on 10 May sounds like the Appellant was getting a little bit depressed before the incident of 15 May'.[158]
  1. [143]
    At hearing, as canvassed above at paragraphs [73]–[75], Dr Christensen agreed that on 10 May 2021, Mr Lee had depressive symptoms, and was suffering from a mental health condition which he described as an adjustment disorder.
  1. [144]
    While I note that Dr Christensen has diagnosed a separate and distinct condition existed when he examined Mr Lee in December 2021 and was of the view that this condition had arisen from the events of 15 and 16 May 2021, he also clearly accepts that Mr Lee had a mental health condition on 10 May 2021.
  1. [145]
    Mr Lee's own evidence refers to a discussion he had with Ms Lucas where he recalled discussing issues he was having at work and symptoms he was experiencing. I have no reason to doubt Mr Lee's evidence with regard to that conversation or, for that matter, Ms Lucas's evidence regarding that conversation.
  1. [146]
    There is no evidence before me that Mr Lee was presenting to Dr Campbell with some other type of non-psychological medical issue which may form the basis for a medical certificate to support his application for a border pass.
  1. [147]
    I understand the Appellant's submission that the Commission should not have regard to events which occurred prior to 15 May 2021. However, the Appellant argues that events which occurred prior to 15 May 2021 are relevant as a background and one of its alternative cases is that Mr Lee suffered an injury over a period of time commencing in February 2021.
  1. [148]
    It is possible for Mr Lee to have been diagnosed with a psychological injury on 10 May 2021 and for him to have continued to be able to work until a later date. In Exhibit 25, Dr Christensen opines that if Mr Lee had an injury at 10 May 2021, that at the time of his review in December 2021, it had been aggravated. It is also possible that Mr Lee suffered a second, different injury on 17 May 2021 resulting from the events of 15 and 16 May 2021, however for reasons discussed above, any separate injury in the form of an aggravation or a different psychological condition and/or PTSD would need to be subject of a separate application for compensation. The scope of the appeal is the application which was before WorkCover and the review unit. It is not open to the Commission to accept a second separate and distinct injury which was not subject of an application for compensation.
  1. [149]
    I have decided that the date of injury was 10 May 2021. This was the date on which a doctor assessed Mr Lee as suffering from a mental health issue of moderate depression and certified him as such.
  1. [150]
    That being the case, for the purposes of this hearing, events which occurred after 10 May 2021 are not relevant to the determination of whether the injury diagnosed on 10 May 2021 arose out of or in the course of employment and whether employment was a significant contributor to the injury.
  1. Did the psychological injury of 10 May 2021 arise out of or in the course of Mr Lee's employment and was employment a significant contributor to the injury?
  1. [151]
    The Appellant's Further Amended Statement of Facts and Contentions extensively addresses the events of 12 and 13 February 2021 and refers to incidents over the period of time from 12 February to 15 May 2021. The Further Amended Statement of Facts and Contentions also sets out an alternative case that Mr Lee suffered a psychiatric injury as a consequence of the events over the period of time from 12 February to 16 May inclusive.[159]
  1. [152]
    In closing submissions, the Appellant submits, 'it is apparent that the events of 12 and 13 February 2021 take on limited significance', this is said to be because they were distant in time from the asserted injury/cut off date of 10 May 2021. The Appellant submits that these events were 'unlikely to bear any causative relationship to the attendance of [Mr Lee] at the general practitioner on 10 May 2021 or causation of any "injury"'.[160]
  1. [153]
    With reference to Dr Campbell's consultation note of 10 May 2021, the Appellant says that there is no reference whatsoever to issues at work or work-related stress. The Appellant says it is significant that the consultation note does not say that the alleged depression as at 10 May 2021 was caused by or arising out of the Appellant's work. The Appellant further notes that there was no WorkCover medical certification regarding a work-related injury on that date. The Appellant says that it would be 'extraordinary' for the Commission to determine that Mr Lee was suffering work-related 'depression' or that the alleged depression arose out of his employment in the complete absence of any reference to employment by Dr Campbell.[161]
  1. [154]
    The Respondent submits that the Commission should find that Mr Lee's attendance on the doctor on 10 May 2021 was related to workplace stressors and not merely for a medical certificate for a border pass.
  1. [155]
    As discussed above,[162] while the Respondent's statement of facts and contentions had stated that Mr Lee's condition at 10 May 2021 was caused by personal stressors and did not arise out of employment, it is clear from its closing submissions that the Respondent has changed its position on this matter as a result of the evidence before the Commission.
  1. [156]
    With reference to the evidence of Mr Lee and the subsequent opinions expressed by Dr Christensen as to Mr Lee's condition on 10 May 2021, the Respondent says that the evidence 'now plainly demonstrates that Mr Lee's condition was caused by workplace stressors arising out of the course of his employment'.[163]
  1. Consideration – Did the injury arise in the course of employment and was employment a significant contributor in the injury?
  1. [157]
    Regardless of the original position taken by the Respondent in its Statement of Facts and Contentions, it is now the case that it is of the view that the depression diagnosed by Dr Campbell arose from workplace stressors experienced in the course of his employment over a period of time from 12 February 2021. While the Appellant's main case is that Mr Lee suffered his injury after 15 May 2021, one of its alternative arguments is that Mr Lee suffered an OPT injury arising from events commencing from 12 February 2021. On that basis, I find that while its submissions appear to argue otherwise at times, the Appellant is of the view that there are relevant events from 12 February 2021 onwards which have contributed to Mr Lee's injury, whether that injury occurred on 10 May 2021 as I have determined or at a later date as argued by the Appellant.
  1. [158]
    Having considered the oral and documentary evidence at hearing and the submissions of the parties, I accept that Mr Lee's psychological injury of 10 May 2021 arose in the course of his employment over a period of time from 12 February 2021 to 10 May 2021.
  1. [159]
    The Appellant says that the events in February are too far-removed from 10 May 2021 to be significant contributors to his injury. However, based on the evidence before the Commission regarding those events, it seems they were of significance. I also note that Dr Campbell recorded that Mr Lee stated he had been feeling depressed for the last '1+ year'.
  1. [160]
    While personal stressors may have been present, for example, in that Mr Lee was seeking to return to South Korea but was unable to do so due to COVID border closures and restrictions, I am of the view that Mr Lee's workplace stressors suffered over the period of time from February were a significant contributor to his injury of 10 May 2021.
  1. [161]
    This is in part because Mr Lee himself has referred to his fear and anxiety regarding Mr Daley. It is also because Mr Lee had told Ms Lucas and Mr Webber that he was having trouble managing the kitchen and was experiencing a range of physical health symptoms.[164] Mr Lee himself said that after speaking with Ms Lucas, he made the appointment to see Dr Campbell. Mr Lee's evidence is that he told Dr Campbell on 10 May 2021 that he had stress from work.[165]
  1. [162]
    I understand that the Appellant says Dr Ballard's notes of 17 May 2021 contain inaccuracies, however I have no reason to question the reference in her notes to Mr Lee reporting that he had been feeling very stressed for the last few weeks. Mr Lee says that he told Ms Ballard he had been stressed for a few days, however this is inconsistent with his evidence that he had told Dr Campbell on 10 May 2021 that he had stress from work.
  1. [163]
    I conclude that Mr Lee's psychological condition assessed on 10 May 2021 arose out of or in the course of employment with employment being a significant contributor to the injury.
  1. Is the injury excluded by s 32(5) in that it arose from management action taken in a reasonable way or Mr Lee's perception of reasonable management action?
  1. [164]
    The evidence demonstrates that in the kitchen on 12 February 2021, Mr Lee was subjected to certain behaviours by his colleague Mr Geoff Daley. The evidence also suggests some physical altercation between the two.
  1. [165]
    The Appellant says that as a result of that incident, Mr Webber took management action which was not reasonable or undertaken in a reasonable way. The Respondent says that management action taken by Mr Webber was reasonable.
  1. [166]
    As the matter of whether the injury is excluded due to the operation of s 32(5) is in dispute, I will consider the evidence before the Commission and the submissions of the parties in this regard.
  1. [167]
    The Appellant's closing submissions address the events of 12 and 13 February 2021 from page 70–73 of its 75 page document. The Respondent addresses these events from pages 2–29 and pages 35–36 of its 36 page document. As I have made reference to in paragraph [152] of these reasons for decision, the Appellant did not consider the events over these days to be significant and, consequently, made limited submissions with respect to these events.
  1. What happened on 12 February 2021?
  1. [168]
    I have been assisted by the extensive submissions of the Respondent regarding the evidence addressing the incident on 12 February 2021. However, I confirm that I have independently reviewed the transcript and documents pertaining to the incident.
  1. [169]
    At the time of the incident, Mr Lee was the head chef at the Sovereign. Mr Geoff Daley worked in the kitchen as a kitchenhand/cook, Mr Arawa Martin also worked in the kitchen. Ms Aeri Cho worked in the kitchen and at the relevant time, was Mr Lee's girlfriend.
  1. [170]
    Mr Lee gave evidence that he found Mr Daley to be quite aggressive and said that he would not follow rules. Mr Lee said he received complaints about Mr Daley from others in the kitchen.[166]
  1. [171]
    Mr Lee said that Mr Daley 'swore a lot, he shouted at people, and very aggressive (sic)'.[167] Mr Lee said that he found Mr Daley to be 'someone that I should avoid. I find him rather a bit scary, frightening'.[168]
  1. [172]
    With reference to the transcript of hearing,[169] Respondent sets out Mr Lee's evidence as to what occurred on 12 February in its submissions:[170]
  1. (a)
    around 6pm the appellant asked Daley to make a new salad, but he made a terrible salad;
  1. (b)
    the appellant says that he told to Daley "this is not the way you make a salad. Where are the fresh ingredients? Why didn't you use the fresh ingredients?";
  1. (c)
    Daley kept on saying "I don't know, I don't know";
  1. (d)
    the appellant told him to work more professionally, you can't just say "I don't know, I don't know". "This is your responsibility";
  1. (e)
    Daley then "got really angry, upset and started to swear" at the appellant by saying "Fuck you. This is Australia. You should treat me like an Australian. Do you speak English or do you speak Korean? You shouldn't speak Eng – you shouldn't speak Korean. You should speak English only"; and
  1. (f)
    Daley is said to have sworn and shouted at the appellant continuously and "then he pushed my chest. And then he passed me to grab his bag and then came back to me, and still shouted at me and swore at me and I told him to leave the kitchen".
  1. [173]
    Mr Lee says that Mr Daley raised his two arms and pushed Mr Lee in the chest with his open palms.[171] Mr Lee denies shoving the salad bowl in Mr Daley's face.[172]
  1. [174]
    Mr Lee acknowledged in his evidence that at times, he would speak Korean in the kitchen. He said that it was faster, easier and more efficient to speak in Korean to the Korean chefs.[173]
  1. [175]
    Mr Lee said that after the incident involving Mr Daley he 'felt that I was racially humiliated…I was scared and frightened because he was physically assaulted me (sic)'.[174] Mr Lee said that he was frightened by the language Mr Daley used and that he felt very humiliated because the incident occurred in front of others. He said that he became anxious and that he got quite angry.[175]
  1. [176]
    Mr Lee sent an email about the incident to Mr Webber, general manager of the Sovereign. By way of background, Mr Webber has been the general manager of the Sovereign since 1 January 2015. Mr Webber manages around 55 staff during peak season. The resort has 38 rooms, 5 apartments and staff accommodation on the property.
  1. [177]
    The email was sent on 12 February 2021 at 9.19pm. It attached a document titled 'Kitchen Report':[176]
  1. Date: 12/02/2021
  1. Time: 6PM
  1. Place: Sovereign Resort Kitchen
  1. Witness: Arawa, Geoff, Lee
  1. Geoff made a kids salad that was not what I wanted. I tried to show him correct kids salad.
  1. I check service fridge but there are no prepped lettuce basket was empty. And I found another salad in the fridge that was pumpkin and beetroot salad. He used shit rocket. salad looks just dead salad.
  1. I asked him "do we have more lettuce?" He said "I don't know". I told him many times before that all chefs must check all service fridge and prepped items before service time. He just blames too many reasons all the time. I told him there are no reason to say any blame story. It is your fault that you did not check all your section. I told him stop to talking about blame shit. I told him that you need to just say "yes chef, I will fix it". But he just keeps speaking fuck word and he said "It is Australia!! And he pushed me then I dropped salad plate on the ground. And that time Hangwoo tried to stop his violence. I complaint about his attitude and smoking problem few times. But he did not agree his fault and then he re complaint about Korean chefs that they speak Korean and then always he said "IT IS AUSTRALIA."
  1. It is really discrimination to Korean and all foreigner who speak English as a second language in Australia. I couldn't hold him to work within my kitchen team then I sent him out of the kitchen then he left.
  1. 12/02/2021
  1. Shine Kwang Lee
  1. [178]
    Mr Lee's evidence was that he did not include a full account of what happened in his email as he was 'quite confused in my head about what actually happened. I was going to give more details in the meeting the next day'.[177] Mr Lee said that he became quite anxious and the racism and physical attack he experienced caused him to feel fearful.[178]
  1. [179]
    The Respondent submits that Mr Lee's explanation in this regard should not be accepted. The Respondent says that Mr Lee was able to contact Mr Webber to advise him of the incident and that he was able to send an email providing considerable detail of the incident. The Respondent says that if Mr Lee truly believed he had been subjected to racism from Mr Daley, it would be reasonable to assume he would have been in a position to fully set out the comment and to add greater details of the physical contact he alleges occurred.[179]
  1. [180]
    Mr Webber's recollection was that prior to receiving Mr Lee's email, he had spoken to Mr Lee and asked him to put the matters in an email so that he could act on the matter.[180]
  1. [181]
    Mr Webber's evidence was that on 13 February 2021, he spoke with Mr Arawa Martin and Mr Hangwoo Lee who were working in the kitchen when the incident occurred. Mr Webber also spoke to Mr Lee and Mr Daley to obtain their version of events. Mr Webber acknowledged that he did not record the investigation discussions he had with various workers in writing.[181]
  1. [182]
    Mr Webber said that after speaking with Mr Hangwoo Lee and Mr Martin, he formed a view that it was Mr Lee who caused the incident. He said that he spoke to Mr Lee about this and his expectation of Mr Lee as the Head Chef.[182]
  1. [183]
    Mr Webber recalled speaking with Mr Daley to obtain his version of events. Mr Daley had recalled that Mr Lee 'had got up in his face' and had sworn at him, pushing a plate up his nose. Mr Daley recalled pushing or grabbing the plate and throwing it out of his face. Mr Daley said that Mr Lee had yelled at him that he was sacked and told him to get out of the kitchen. Mr Webber recalled Mr Daley saying Mr Lee had yelled at him and was 'rambling in South Korean'. Mr Webber said Mr Daley had told him he felt he was being belittled and abused in South Korean and that this prompted him to say to Mr Lee, 'This is Australia. Speak English'.[183]
  1. [184]
    Mr Lee said that on 13 February 2021 around 11.00am or 12.00pm, he met with Mr Webber. With reference to the transcript, the Respondent sets out Mr Lee's description of the meeting:[184]
  1. (a)
    Webber came to the kitchen and said that he wanted a meeting with him and they went to the restaurant;
  1. (b)
    he "was able to tell [Webber] more details about what happened…" but gave no evidence about what the details related to;
  1. (c)
    about two/three minutes into the meeting Daley joined the meeting;
  1. (d)
    Webber then told him that his [Me Lee's] management style "is not okay" and that he needed to change his behaviour;
  1. (e)
    Webber said that he had interviewed two other people from the kitchen and said the incident "happened because of my poor behaviour and poor management";
  1. (f)
    Webber blamed Daley for leaving work earlier and that he went home;
  1. (g)
    Webber "basically ordered us, me and [Daley], to say sorry to each other and shake hands";
  1. (h)
    Daley then went home and he and Webber spoke for another five/ten minutes and Webber said to the appellant to improve his poor management;
  1. (i)
    He asked Webber what he was going to do about the racism and physical assault from Daley and why were these issues not raised in the meeting; and
  1. (j)
    Webber stated "well, meeting is over. I don't want to deal with this anymore" and the meeting then finished.
  1. [185]
    With reference to the transcript, the Respondent sets out Mr Webber's evidence about the five–ten minute[185] meeting that took place on the restaurant balcony with Mr Lee and Mr Daley on 13 February 2021:[186]
  1. (a)
    He explained that the behaviour was unacceptable;
  1. (b)
    "[the appellant]…need to act more professionally";
  1. (c)
    Daley could not insult the appellant;
  1. (d)
    Outlined "we could go down the path of issuing them both with, you know, formal written warnings … because I believed … in the workplace, that they were both way out of line"; and
  1. (e)
    "decided we'd sit down together. That happened on the – after speaking to them separately, they came in. We sat on the restaurant balcony, um, outside, and I sat there and explained to them it's unacceptable behaviour, obviously. "You're being disrespectful to each other. You need to", you know – A , "Shine, you need to act more professionally. And Jeff, you can't insult Shine." Um, they both – I – I – I told them we could go down the path of issuing them both with, you know, formal written warnings, both of them. Um, because I believed that, you know, that – you know, in the course of life, in the workplace, that they were both way out of line. And can you ---? ---And I said, "In this situation", I said, "it" – "it's honestly to me extremely disappointing. Yes, I could offer you both – I could write you up on written warnings. However, in my opinion, are you happy to get over this situation. Are youse happy working with each other and do youse want to apologise to each other and shake hands and get over it." And they agreed that that was the – the – the – what would happen. And Jeff apologised to Shine first. And Shine apologised to Jeff, and they shook hands."[187]
  1. [186]
    Mr Lee did not remember the exact words Mr Webber used to end the meeting but gave evidence that Mr Webber had said words to the effect of, ' … Well, all these matters were dealt with at the meeting. So I don't want to go back to that issue again'.[188]
  1. [187]
    Mr Lee agreed that during the meeting, Mr Webber had told both he and Mr Daley that they were at fault and out of line.[189] Mr Lee said that Mr Webber's request that the two men apologise to each other felt like an order. Mr Lee said, 'I followed his order'.[190]
  1. [188]
    However, the Respondent says that Mr Lee accepted in his evidence that he 'could have said to Mr Webber, I'm not going to apologise to Geoff...' but decided to 'follow his instructions'.[191]
  1. [189]
    Mr Lee said that he was disappointed with how Mr Webber had managed the meeting and felt that it was unfair and unreasonable. Mr Lee said he was confused at the time and thought Mr Webber had not taken his complaints about racism and the physical assault seriously. Mr Lee said that he was anxious and worried that if the same thing happened again with Mr Daley, he would not get support from management.[192]
  1. [190]
    Mr Lee said the matter was ignored and that he was very disappointed and felt he could not complain further to Mr Webber if he experienced any further racism because 'I got confused whether what I'd experienced was actually racism or not'.
  1. [191]
    However, the Respondent says that Mr Lee recalled Mr Webber requesting that he and Mr Daley shake hands and he agreed that he shook hands and said sorry to Mr Daley.[193] The Respondent submits that if Mr Lee held the genuine belief that the proposals Mr Webber put forward to resolve the issue was in any way unfair, that it was clearly open to the Appellant to express that opinion.[194]
  1. [192]
    The Respondent's submissions then turn to Mr Webber's evidence regarding what happened after the incident and the meeting which followed. Mr Webber accepted that the allegations raised by Mr Lee about Mr Daley's conduct were significant.[195]
  1. [193]
    Mr Webber's evidence was that he had discussions with staff who were present during the incident and that he understood that the 'cause of the confrontation was [Mr Lee's] attack on Jeff (sic)'[196] and he determined that Mr Lee was in the wrong. Mr Webber disagreed with the suggestion that he was not 'dealing with the facts and doing a proper investigation of what went on'.[197] Mr Webber said he felt both Mr Lee and Mr Daley had done the wrong thing.[198]
  1. [194]
    With reference to the transcript, the Respondent summarises Mr Webber's evidence that:
  1. (a)
    he suggested both, the appellant and Daley, needed to change their behaviour;
  1. (b)
    both were out of line;
  1. (c)
    told them to act professionally and get on with the job;
  1. (d)
    both to apologise to each other;
  1. (e)
    to shake hands or go down the path of being given formal warnings; and
  1. (f)
    Webber reiterated that his understanding of the incident was not based on his historical views of the appellant.[199]
  1. [195]
    Mr Webber could not recall whether he had addressed the alleged racist comments made by Mr Daley or the physical assault in the joint meeting with Mr Lee and Mr Daley.[200] Mr Webber described his assessment of the matter as that Mr Lee had 'aggressively attacked his staff member who retaliated – that was my assessment of the situation.'[201]
  1. [196]
    After the meeting ended and Mr Daley left, Mr Webber continued to talk to Mr Lee for a few minutes. Mr Webber said that he thought Mr Lee considered he was not at fault.[202] Mr Webber agreed that he believed Mr Lee was unhappy with the outcome of the meeting and thought that Mr Daley should have been sacked.[203] Mr Webber said that he thought the matter had finished, the two had shaken hands and were sorry for their actions and would move forward.
  1. [197]
    With regard to the allegation of assault in the kitchen, Mr Webber said that what had been reported was an assault for the purposes of Sovereign's disciplinary policy and that this would amount to serious misconduct.[204] Mr Webber said that he interviewed all parties involved in accordance with Sovereign's disciplinary policy. However, Mr Webber accepted that he did not, as required by the policy, put the allegations in writing and did not follow the policy 'to the letter of the law'.[205]
  1. [198]
    Mr Webber said that he 'followed the process within reason' and said that he was acting in Mr Lee's best interest to resolve the matter collectively.[206]
  1. [199]
    Mr Webber was asked questions about his actions with regard to the company's anti-discrimination and equal opportunity policy ('Sovereign policy'). Mr Webber said that in the joint meeting he had told Mr Daley that it was not acceptable to make statements  such as the one he had made.[207]
  1. [200]
    The Respondent submits that 'in the circumstances, the manner in which Mr Webber conducted the meeting and the proposals he outlined to resolve the issues was entirely reasonable and undertaken in a reasonable way'.[208]
  1. [201]
    Mr Webber said that he did not provide Mr Lee a written copy of his findings as was required by the policy. Mr Webber said:[209]

…I gave them both to – I interviewed the witnesses that were involved, and I made a determination that one person acted as a bully and aggressively attacked one person. The other person responded. They used a comment that involved racism. I made a determination at the time that was - that they were both in serious misconduct and wrong and gave them an opportunity to speak to each other and see if they were comfortable to move forwards, and at that time they did.

  1. The period following the incident on 12 February 2021
  1. [202]
    Mr Lee also gave evidence that Mr Daley made further racist comments to him over the period from 12 February to 15 May 2021. Mr Lee said that racist comments occurred at least once a fortnight.[210] The things Mr Lee referred to were:[211]

INTERPRETER: All Geoff Daley, not just to me, but all the other, you know, overseas chefs. So he also said things like, 'Do not speak Korean. This is Australia. Speak English.' So usually a very angry, you know, upsetting tone of voice. So we often had a radio on in the kitchen and you would get K-pop music sometimes, and every time he said, 'Oh, the fucking Korean music gives me a headache. Change the channel". Yeah, so many times.'

  1. [203]
    The Respondent notes Mr Lee's evidence that almost every morning, he would have a face-to-face meeting with Mr Webber to talk generally about business needs and how the kitchen was going.[212] The Respondent submits that Mr Lee acknowledged that during those meetings Mr Webber would ask him how he was going; how things were going in the kitchen and how the staff were working/interacting with each other in the kitchen.[213]
  1. [204]
    Mr Lee's evidence was that he made many reports about Mr Daley's attitude and behaviour but not specifically about racism.[214] Mr Lee said that because he felt the racism he raised in the email of 12 February 2021 was ignored, he was 'confused whether what I experience was racism or not. So I didn't use racism in my report'.[215]
  1. [205]
    The Respondent submits that Mr Lee's approach was curious in that he was aware that if there were problems with Mr Daley, Mr Lee was required to provide an email or a short letter or report to Mr Webber.[216] Mr Lee said that other than the 12 February 2021 email to Mr Webber, his reports about Mr Daley were made in face-to-face meetings.[217] Mr Lee said that Mr Webber never asked him to put the complaints or issues in writing.[218] The Respondent submits that the Commission should find that the reason no further written reports were made was that no further issues with Mr Daley warranted further steps being taken by Mr Lee.[219]
  1. [206]
    The Respondent says 'it is perhaps fair to say that the Appellant's working relationship with Mr Daley was not a good one'. The Respondent notes that Mr Lee agreed in cross-examination that at times both of them did not get along in the workplace and that the working relationship could get a bit tense.[220] Mr Lee's evidence was that prior to the incident on 12 February 2021, Mr Lee had given Mr Daley four or five verbal warnings about failure to follow kitchen rules and his aggressive attitude.[221] The Respondent notes that those verbal warnings were not formal in nature.
  1. [207]
    Mr Martin said that two days after his meeting with Mr Webber on 13 February 2021, he attended a whole kitchen meeting conducted by Mr Webber. Mr Martin recalled that Mr Webber spoke about getting along and all working together as a team.[222]
  1. [208]
    There was evidence that Mr Webber conducted a meeting on 25 February 2021 where many staff, including Mr Lee were in attendance. Mr Lee recalls that at that meeting, Mr Webber said that it was important for co-workers to treat each other with respect in the kitchen; that a person's individual political or religious views and nationality needed to be respected; and that language barriers can arise in the kitchen because staff either speak in Korean or English.[223]
  1. [209]
    Mr Webber also recalled that meeting and confirmed the matters Mr Lee addressed in his evidence about the meeting. The Respondent summarises a number of the management actions Mr Webber took in its submissions with reference to the evidence before the Commission:[224]

…Webber felt, after the incident, that the kitchen was still struggling, people were dejected and the "team was losing its way – or had lost its way …I felt we just weren't getting anywhere".[225] Consequently, Webber had a meeting with kitchen staff a couple of weeks after the incident. The purpose of the meeting was to create a communication document/debriefing sheet which would set out how the service went on the shift; set out individual requests if they did not understand matters. The document was intended to get the staff talking and communicating about what could be done better so as to "make everyone on an even field".[226] In addition, Webber stated that people had to respect each other's culture views; religious and political along with respecting different variances of people beliefs.[227] The appellant confirmed in his evidence that such a meeting took place. The Commission can be satisfied that Webber, in short, sought to emphasise that everyone had to respect each other in the workforce.

  1. [210]
    The Respondent submits that the matters addressed in the meeting by Mr Webber demonstrate that he was taking reasonable management action to convey to employees how they should properly conduct themselves at work.[228]
  1. Continuing interactions between Mr Webber and Mr Lee
  1. [211]
    Mr Webber said that around 23 March 2021, he went on leave for two weeks. He said that before he went on leave, he spoke with Mr Lucas about Mr Lee not coping well and that Mr Lucas should provide him with some positive comments.[229] Mr Webber said that the intent was to provide Mr Lee with positive comments in circumstances where Mr Webber was aware that the kitchen was struggling and there was a need to progress new menus and not leave things until the last minute.[230]
  1. [212]
    Mr Webber recalled that when he returned from leave, he had a conversation with Mr Lee in which Mr Lee asked him if he could borrow $300,000 from either the company or Mr Webber himself. Mr Webber said that he did not have that money and that he was not authorised to lend Mr Lee money from the company. Mr Webber said he was aware Mr Lee had gone to Sydney to resolve his money situation but said that he believed the issue persisted until sometime around 10 May 2021.[231]
  1. Mr Daley wished to apply for an apprentice chef position
  1. [213]
    Mr Lee agreed that Mr Daley had approached him with a view to applying for a chef's apprenticeship and that Mr Lee had told Mr Webber this.[232] This is confirmed in an email exchange.[233] Mr Lee agreed that if Mr Daley was successful in his application, Mr Lee would be responsible for managing Mr Daley.[234]
  1. [214]
    Mr Webber and Mr Lee met to discuss Mr Daley's suitability to take up the apprentice chef position.[235] The Respondent notes that when Mr Lee was pressed on whether he opposed Mr Daley taking up the position, he said on more than one occasion that he could not recall.[236] Later, when pressed, Mr Lee said that he had told Mr Webber that Mr Daley was not suitable to work in the kitchen.[237] However, the Respondent says that Mr Lee did not specify when he told Mr Webber this.[238]
  1. [215]
    The Respondent submits that the manner in which Mr Lee answered these questions 'reveals that he was prepared to answer questions in order to suit his case' and that this highlights his unreliability as a witness in recalling matters. The Respondent submits that 'if the appellant was, in truth, scared/intimidated and fearful of further physical/verbal attacks from Daley' then it would be expected that he would have expressed strong opposition to Mr Daley taking up the apprentice chef position, however there is no evidence that this occurred. The Respondent says that the position advanced by the Appellant in regard to Daley was not reality.[239]
  1. Interactions between Ms Bonnie Lucas and Mr Lee
  1. [216]
    Ms Lucas recalled a conversation with Mr Lee in April 2021. Ms Lucas said that the discussion was regarding the purchase of new cookware and dishes for the restaurant and that during the conversation, Mr Lee told her that he had 'kind of lost his love for cooking' before COVID and that matters had worsened as he lost his job.[240]
  1. [217]
    Ms Lucas also recalled another occasion in April 2021 when Mr Lee said that he was having problems with members of the kitchen staff. Ms Lucas said that Mr Lee had told her that South Koreans work harder than Australians and that while he said he was having issues with people in the kitchen, no specifics were provided.[241] Ms Lucas also recalled that Mr Lee told her that he was experiencing money issues with his family and that he needed to go back to South Korea.[242] Ms Lucas said the story regarding the money was confusing but involved $500,000 which had gone missing and required Mr Lee to go to South Korea and that he was going to Sydney to rectify issues.[243]
  1. [218]
    Ms Lucas said that she never spoke with Mr Lee about Mr Daley.[244]
  1. [219]
    The Respondent notes that the dates of the discussions between Ms Lucas and Mr Lee appears to be in dispute, however the recollections of both Ms Lucas and Mr Lee regarding the content of their discussions are generally consistent.[245]
  1. [220]
    The Respondent also notes that Mr Lee said that on 30 March 2021 he made a report (not written) to Ms Lucas that he 'found it difficult to manage the staff'.[246]
  1. [221]
    The Respondent also notes that Mr Lee denied telling Ms Lucas that he had lost his joy or enthusiasm for cooking or that he had recently gone to Sydney to sort out money issues and that this was a cause of stress.[247]
  1. Meeting between Ms Lucas, Mr Webber and Mr Lee on 6 May 2021
  1. [222]
    With reference to the transcript, the Respondent sets out Ms Lucas' recollection of a meeting which occurred on 6 May 2021:[248]
  1. (a)
    Webber and the appellant were having a meeting in Webber's office;
  1. (b)
    a tour bus arrived and Webber left the meeting;
  1. (c)
    subsequently Webber met with her;
  1. (d)
    the appellant came down to their meeting and Webber was very apologetic to him because he had forgotten to go back to the meeting with the appellant;
  1. (e)
    the appellant joined the meeting and Ms Lucas offered to leave if any matters were personal, however, both Webber and the appellant suggested she stay;
  1. (f)
    the discussion centred around the difficulties the appellant was experiencing;
  1. (g)
    the appellant described a pattern of insomnia; feeling that his passion for life and cooking had gone;
  1. (h)
    Ms Lucas suggested that he might be experiencing some symptoms of depression or anxiety, but it appeared he might not understand but was using Google Translate and she said you can get assistance by visiting a GP. She recalled the appellant saying that he could bring it up with his GP but was not sure he felt comfortable doing so;
  1. (i)
    Ms Lucas said that she urged the appellant to bring these issues up with his GP because this is how you get a referral for mental health support in Australia; and
  1. (j)
    the appellant said he would do so and Ms Lucas replied, 'you need to explain the symptoms that you had told me … anxiety in your stomach and losing that passion … loss of sleep'.[249]
  1. [223]
    Ms Lucas recalled that Mr Webber had supported the advice that Mr Lee see a doctor and offered support via line management or time off. Ms Lucas also recalled Mr Webber asking Mr Lee if there was anything else he could do to help him.[250]
  1. [224]
    Ms Lucas said Mr Lee had said that his job was not stressful or the cause of his issues and he felt that Mr Webber had been supportive as a manager and Mr Lee did not require any change of his work duties.[251]
  1. [225]
    Ms Lucas also recalled that Mr Lee had alluded to his money issues and talked about returning to South Korea for his sister's wedding and that he was going to finish up at the Sovereign. Ms Lucas said Mr Webber asked Mr Lee to give him the dates of when he was leaving.[252] Ms Lucas thought the discussion 'went really well' and that she felt Mr Lee felt supported by both Mr Webber and Ms Lucas herself.[253]
  1. [226]
    The Respondent notes that Mr Lee has a different recollection of that meeting. Mr Lee denies that he said he was returning to South Korea to fix financial problems or that he was going to stay and conclude his time at the Sovereign.[254] Mr Lee said that he talked about indigestion but did not say he was feeling stressed in the stomach. He accepted that he was having difficulties sleeping and was an insomniac.[255]
  1. [227]
    However, Mr Lee did agree that Ms Lucas had encouraged him to visit a GP, though he said that he didn't recall Mr Webber also encouraging him to do this.[256] Mr Lee said that he did not recall Ms Lucas suggesting he tell the GP about his symptoms but said he did recall her talking about how the mental health system works and how to access it.[257] Mr Lee recalled Mr Webber offering him support in the kitchen with line management and cooking shifts if he was in difficulty.[258]
  1. [228]
    Mr Lee recalled that he had told Mr Webber and Ms Lucas that he was stressed out about his job and recalled that this was why Mr Webber had offered him help.[259] Mr Lee recalled that the stress he was experiencing related to managing the kitchen staff.[260]
  1. [229]
    The Respondent notes that in his evidence, Mr Lee accepted that the meeting ended with both Mr Webber and Ms Lucas separately telling him that their priority was that he look after his mental health and to give him support if he needed it.[261]
  1. [230]
    The Respondent submits that Mr Lee's understanding of English was more than satisfactory. The Respondent says that Mr Webber's evidence was that he did not consider Mr Lee's English to be limited, and that he was aware that Mr Lee had completed a level 6 English assessment as part of his application for permanent residency. Mr Webber's evidence was that he had never had issues speaking with Mr Lee or communicating in English.[262] While the Respondent notes the Appellant's objection to Mr Webber's evidence on this point, the Respondent says that in any event, while Mr Lee's evidence was assisted by the interpreter, he could satisfactorily understand English.
  1. [231]
    The Respondent says that at the hearing, there were various occasions where Mr Lee gave answers to questions in cross-examination and later sought to resile from answers when it was apparent to him that his answers were adverse to his case. The Respondent says that Mr Lee may have had problems with specific English words, however submits that he clearly understood the questions that were being asked of him at hearing.[263]
  1. [232]
    Mr Webber had a similar recollection of the meeting on 6 May 2021. He recalled encouraging Mr Lee to go to the doctors immediately to get help. He told Mr Lee not to stress about resigning and to prioritise seeing a doctor and getting help. Mr Webber said that they ended up pouring a beer and 'just sitting with him'.[264]
  1. [233]
    The Respondent says it is important that in cross-examination, Mr Webber stated that Mr Lee was struggling with the management of the kitchen staff, not that he was having 'actual individual trouble with individual staff. That he just struggled managing staff full stop'.[265]
  1. Conversations following the meeting of 6 May 2021
  1. [234]
    Ms Lucas said that she caught up with Mr Lee about three days after that meeting and asked him how he went with the GP.[266] Mr Lee told her that he had been to the GP and that 'it was really good…' and that he received a referral for a telehealth appointment with someone of South Korean descent and that he was getting the support he needed. [267]
  1. [235]
    The Respondent says that when challenged on the topic, Ms Lucas expressed a view that Mr Lee had understood what she had told him about referrals and mental health support.[268]
  1. [236]
    Mr Webber recalled that sometime after the meeting on 6 May 2021, he had a brief discussion with Mr Lee where he asked if Mr Lee had booked in to see a GP and that Mr Lee said that he had.[269]
  1. [237]
    The Respondent notes that following the discussion on 6 May 2021, Mr Webber recalled having discussions with Mr Lee about how he could 'engage better with his staff'.[270] Mr Webber said that he was aware that Mr Lee struggled with managing people and that he had a very dictatorship style of head cheffing and because of this, encouraged Mr Lee to work as a collective team.[271]
  1. [238]
    With regard to issues between Korean and Australian kitchen staff and Mr Webber, the Respondent notes:[272]

Webber was not aware of any issues between Korean chefs and Australian workers at this time.[273] If a worker had a problem, Webber stated that they 'knew that my door as general manager was always open to absolutely everyone at all times … I make that very clear to every person I employ'.[274] Also, if Webber considered someone was not happy he would approach and encourage them to come and talk to him if they had issues.[275]

After the incident, there was only one occasion that Webber could recall the appellant raising any issues relating to Daley. The only complaint that he raised related to Daley being lazy. In responding to that complaint Webber stated Daley was either sick or had a sick family,[276] presumably as an explanation. Significantly, this was the only issue that the appellant raised with him about Daley's conduct/performance.

  1. Respondent's submissions – Management Action
  1. [239]
    The Respondent notes that the Appellant contends the conduct of Mr Webber on 13 February 2021 was unreasonable because he failed to follow and apply Sovereign policy.[277]
  1. [240]
    The Respondent accepts and notes that Mr Webber's evidence was that the policy was not strictly followed and that he did not comply with the various steps set out in the policy under the heading 'Investigation Process'.
  1. [241]
    Noting this non-compliance with the policy, the Respondent says that when regard is had to the manner in which Mr Webber dealt with the matters raised by Mr Lee in the email of 12 February 2021,[278] the following actions taken by Mr Webber included:[279]
  • interviewing various co-workers to obtain their versions of the incident;
  • interviewing both Mr Daley and Mr Lee to obtain their versions of the incident;
  • conducting a meeting with Mr Daley and Mr Lee;
  • outlining a way forward to resolve the issues to which both Mr Daley and Mr Lee agreed;
  • Mr Webber advising Mr Lee that Mr Daley's conduct was unacceptable.
  1. [242]
    The Respondent says that when considering the actions set out above, it follows that Mr Webber's conduct does not amount to unreasonable management action taken in an unreasonable way. The Respondent submits that at most, there was a 'blemish' in Mr Webber not following the policy.[280] The Respondent says that an imperfection in management action will not automatically result in characterising the action as management action which is unreasonable.[281] The Respondent submits that in other words, the management action need not be perfect.[282]
  1. [243]
    The Respondent submits that in determining whether the management action in this case was reasonable or not, 'it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account'.[283] The Respondent says that accordingly, 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'.[284]
  1. [244]
    The Respondent submits[285] that as President Martin (as his Honour then was) observed in Davis v Blackwood,[286] the proper task of the Commission when applying s 32(5) is to assess the management action which was taken to determine whether it was reasonable and taken in a reasonable way. The Respondent submits that that assessment may involve consideration of what else might have been done, but that will only be relevant to whether what was done was, in fact, reasonable.
  1. [245]
    The Respondent says that Mr Lee may have disliked Mr Daley and working with him in the kitchen, but that is the highest it can be put.[287]
  1. [246]
    The Respondent submits:[288]

The Commission should find, on the evidence, that Webber in fact dealt with the appellant's issues arising from the incident appropriately and reasonably. So much is evident that after the incident and, up until 10 May 2021, the appellant gave no cogent evidence about any further adverse events with Daley relating to any racist comments. At best for the appellant, he may have been unhappy with Daley's work performance but no more. There was no evidence from the appellant which can be realistically characterised as a form of discrimination; bullying; harassment and/or intimidation perpetrated by Daley during the period after the incident up to 10 May 2021. This is a telling omission from the Appellant's case. If in fact the appellant was upset; scared; fearful of any further physical/verbal attacks from Daley it is not apparent why he continued to work with Daley and why he did not take such issues up with Webber. So much is apparent from Daley inquiring about potentially becoming an apprentice chef with the appellant. The respondent contends that no such issues existed between the appellant and Daley after the incident and that is why the appellant never raised with Webber any further problems with Daley.

  1. [247]
    The Respondent concludes that the Commission should find that the actions taken by Mr Webber on 13 February 2021 was reasonable management action taken in a reasonable way. Further, the Respondent submits that the Appellant has failed to discharge his onus to demonstrate that he suffered an injury within the meaning of the WCRA and that injury is not excluded pursuant to s 32(5).[289]
  1. Appellant's submissions
  1. [248]
    The Appellant's submissions with regard to the events of 12 and 13 February 2021 and those events over the period of time until 10 May are somewhat difficult to follow. I understand that this is likely a result of the alternative cases put forward by the Appellant. On the one hand, the Appellant confirms that the event of 12 February 2021 occurred and argues that the management action taken by Mr Webber was unreasonable. However, the Appellant also submits that even if Mr Lee was diagnosed with depression on 10 May 2021, there is no evidence that the depression arose out of or in the course of his employment or that employment was a significant contributing factor to any such alleged injury.[290]
  1. [249]
    The Appellant points to Mr Lee's evidence which was that he was feeling down because he could not travel to South Korea to be with his family, that he had no family support in Australia, and that he was having trouble obtaining a border pass and was seeking help with this.
  1. [250]
    The Appellant says that while there is reference to Mr Lee experiencing stress at work at the time, there is no evidence that the asserted diagnosis of depression was caused by work-related stress or arising out of the course of employment. The Appellant argues that the Commission could not be satisfied that the Appellant had sustained an 'injury' as defined. The Appellant says that Dr Christensen theorised at 10 May 2021 that Mr Lee was ''inferredly' (sic) feeling a bit depressed with covid sort of interfering with…his life' and that this was not related to work.
  1. [251]
    The Appellant also refers to Mr Lee's evidence regarding the incident on 12 February 2021, the incident report he sent Mr Webber by email and Mr Lee's complaints of Mr Webber's unreasonable conduct in the manner in which he handled the complaint of racism and verbal assault (sic).[291]
  1. [252]
    Mr Lee's evidence was that Mr Webber had told him that the incident with Mr Daley had occurred because of Mr Lee's management style and that he needed to change his behaviour. Mr Lee also recalled that after the meeting in which Mr Webber 'ordered' Mr Daley and Mr Lee to apologise to each other and shake hands, Mr Lee said that he asked Mr Webber what he was going to do about the racism and the physical assault and Mr Webber informed him that the meeting was over and that Mr Webber did not want to deal with the matter anymore.[292]
  1. [253]
    The Appellant says that Mr Lee's evidence is that Mr Webber never told him he was going to speak to Mr Daley about the racism, or that he had done so.[293] Mr Lee's evidence was that he felt that his complaint about racism and physical assault were not taken seriously. Mr Lee said that he was anxious and worried that Mr Daley would repeat the behaviour. Mr Lee felt very concerned that if it happened again, he would get no support from management. Mr Lee said that he felt his report was completely ignored and he was very disappointed.[294]
  1. [254]
    The Appellant says that the Commission should find that the incident which occurred on 12 February 2021 happened as Mr Lee describes because Mr Daley did not give evidence on the matter, and Mr Martin did not have a capacity to directly observe the incident and had an inaccurate recollection of the time of the event.[295]
  1. [255]
    With regard to the issue of management action, the Appellant says that 'residual factual disputes exist regarding Mr Webber's conduct' and that these factual disputes persist when determining whether his conduct constituted unreasonable management action. The Appellant says that to the extent that there is a dispute about the management action taken, Mr Lee's version should be preferred on the basis that Mr Webber is not a credible witness.[296]
  1. [256]
    The Appellant notes that Mr Lee and Mr Martin's evidence was that it was Mr Daley who was aggressively pushing the salad bowl into Mr Lee's face, whereas Mr Webber believed the opposite had occurred.
  1. [257]
    The Appellant says that even if Mr Webber's evidence is accepted, his management action was unreasonable and non-compliant with the Sovereign's own human resources policies.[297]
  1. [258]
    The Appellant says that the Commission should find that Mr Webber failed to apply and follow the Sovereign's 'Discipline and Termination Policy' in that he:[298]
  1. Failed to provide notification in writing of the allegations against the Appellant
  2. Failed to obtain a formal response from the Appellant
  3. Failed to undertake an investigation in accordance with the disciplinary policy
  4. Failed to make findings in respect of the complaint against the Appellant (albeit having formed an adverse view of the Appellant's conduct).
  5. Failed to notify the Appellant of his findings and the implications thereof.[299]
  1. [259]
    The Appellant also says that Mr Webber breached the Sovereign's 'Anti-Discrimination Policy' in that he:
  1. Failed to follow the process for investigation of a complaint of discrimination.
  2. Failed to make findings in accordance with "step 3" of the investigation process.
  3. Failed to advise the Appellant (and Daley) separately of his findings and the implications of such findings (as required by step 4 of the investigation process of the Anti-Discrimination Policy.[300]
  1. [260]
    The Appellant goes on to submit that the Commission should find further breaches of the HR policies generally including that:
  • Mr Webber failed to put the allegations of 12 February 2021 in writing to the Appellant.
  • Mr Webber failed to make notes of any investigation.
  • Mr Webber failed to separately provide the Appellant with a written copy of his findings as per the HR policy.
  • Mr Webber failed to take action against Daley in respect of his racist comments.
  • Mr Webber failed to take action against Daley in respect of his physical assault on 12 February 2021.
  • Mr Webber failed to comply with the Sovereign's HR Policy.
  1. [261]
    The Appellant says that the failures set out above were not an isolated 'blemish' as alleged by the Respondent. The Appellant says that the Commission should find that the actions of Mr Webber on 13 February 2021 did not constitute reasonable management action taken in a reasonable way.
  1. [262]
    I note that the Appellant seeks for me to consider the later unreasonable management action of 16 May 2021 as further evidence of Mr Webber's unprofessional and unreasonable conduct. The Respondent says that the actions of Mr Webber on 13 February 2021 'stand alone to Mr Webber's dealings with the appellant after 10 May 2021'. The Respondent says that the fact that it does not address the management actions of Mr Webber after 10 May 2021 does not warrant the Commission to hold that Mr Webber's actions before 10 May 2021 amount to unreasonable management simply because the Commission may conclude that Mr Webber acted unreasonably after 10 May 2021.[301]
  1. Consideration – Management Action
  1. [263]
    In my view, the work-related stressors over the period from 12 February–10 May 2021 arose out of, or in the course of reasonable management action taken in a reasonable way in connection with his employment and Mr Lee’s expectation or perception of reasonable management action taken against him following the events of 12 February 2021. The submissions of the parties have focused on the reasonableness or otherwise of management action taken in the period following the events of 12 February 2021.
  1. [264]
    In Davis v Blackwood, President Martin (as his Honour then was) observed that:[302]

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

…

  1. [265]
    In State of Queensland (Department of Agriculture and Fisheries),[303] Deputy President Merrell said:
  1. …
  1. [25]
    The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental.[304] 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.[305]
  1. [26]
    Reasonableness does not necessarily equate with ‘industrial fairness’ although considerations of ‘fairness’ will always be relevant.[306] An imperfection in management action may not justify the characterisation of the management action as unreasonable.[307] 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.[308]
  1. [27]
    Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.[309] It is the reality of the employers conduct that must be considered and not the employee’s perception of the employer’s conduct.[310]
  1. …
  1. [266]
    In my view, regardless of whose version of events is accepted, the incident which occurred in the kitchen on 12 February 2021 was serious in nature. It led to allegations of racism and assault against Mr Daley. It appears to have also led to what amounts to a  counter-complaint against Mr Lee on the basis of his management style and the way he was speaking to and managing Mr Daley.
  1. [267]
    While there are differing views about what occurred, it is sufficient to accept that an incident occurred in the kitchen involving Mr Lee intervening with Mr Daley about a salad he was making, that it did involve a physical altercation between Mr Lee and Mr Daley, that the two men were shouting (and probably swearing) at each other and that Mr Daley did say words to the effect that Mr Lee should speak English because they were in Australia. I also accept that the event concluded with Mr Lee directing Mr Daley to leave the workplace.
  1. [268]
    The incident appears to have been verbally reported by Mr Lee to Mr Webber who requested that a written statement be made.
  1. [269]
    While it is true that Mr Webber did not follow the relevant policies when he dealt with the matter, it is not the case that he did nothing in response to the matter. Mr Webber took a number of steps to undertake an informal investigation which led him to make a determination that both parties were in the wrong. This prompted him to call a meeting of Mr Lee and Mr Daley and to request that they apologise to each other and shake hands.
  1. [270]
    The Sovereign policy steps out the investigation process which required Mr Webber to commence an investigation into the complaint and advise Mr Lee and Mr Daley, separately, of his findings. The findings are to be reflected as either the complaint is substantiated, or not substantiated. Upon the evidence given to the Commission, no formal investigation occurred. Mr Lee and Mr Daley were not informed of the outcome of any investigation. However, Mr Webber's preliminary investigations gave rise to concerns about the behaviour of both Mr Lee and Mr Daley. Rather than escalating the matter, Mr Webber determined to bring both men together to address the altercation in an informal way. It seems to me that having determined that both men were liable to discipline following the event, Mr Webber decided the best way to deal with the matter was to speak to both Mr Lee and Mr Daley individually and then subsequently together Resulting from this, he then suggested that they both apologise and move on, and that no disciplinary action would need to be taken. On my consideration of the evidence available to me, both Mr Lee and Mr Daley accepted this position, apologised and shook hands.
  1. [271]
    Following 12 February 2021, and until 10 May 2021, which I have determined to be the date of injury, there are no further formal or written complaints from Mr Lee regarding Mr Daley's behaviour. Mr Lee's evidence appears to be that this was because he had no confidence that Mr Webber would respond appropriately to any such complaint.
  1. [272]
    However, Mr Lee gave no specific evidence of further issues with Mr Daley beyond general comments Mr Daley would make in the kitchen. In fact, the evidence was that Mr Daley was seeking to undertake a chef's apprenticeship in circumstances where Mr Lee would be his manager. Mr Lee's evidence did not persuade me that Mr Lee had major concerns about this or that he attempted to intervene to convince Mr Webber that Mr Daley should not be employed in this regard.
  1. [273]
    I am satisfied that Mr Webber was present in the workplace and was available for Mr Lee to consult in circumstances where he was experiencing issues with managing the staff in the kitchen.
  1. [274]
    While Mr Lee may not have been happy with the management actions taken by Mr Webber after 12 February 2021, it is the case that Mr Webber responded to the complaint, spoke to relevant witnesses, told Mr Daley that his behaviour was unacceptable and spoke to the kitchen staff as a group to address matters such as respect for each other's cultures.
  1. [275]
    In my view, it is reasonable for a manager to undertake some less formal fact-finding investigations when in receipt of a complaint. It is also open to the manager to determine how they will proceed to deal with the matter depending on the circumstances. Based on the available evidence, even on the most favourable version of events for Mr Lee, I find that it was reasonable for Mr Webber to have some concerns about Mr Lee's conduct on 12 February 2021. In those circumstances, it seems to me that he took a reasonable and practical approach to matters.
  1. [276]
    I am of the view that Mr Lee could have refused to apologise and shake Mr Daley's hand in that meeting. Mr Lee's assertive conduct in the kitchen on 12 February 2021 when he spoke to Mr Daley about the salad and told him to leave the kitchen makes it difficult to accept that he could not or would not have spoken up if he did not want to apologise or shake hands.
  1. [277]
    The evidence demonstrates that Mr Lee knew how to raise matters with Mr Webber and that the working relationship between the two involved regular communication and the capacity to meet on a regular basis. Mr Lee’s emailed report on 12 February 2021 is evidence that he had the capacity to express concerns by email. Mr Lee’s evidence may have been that he didn’t see any point in making a written report as he thought it would not be dealt with, however, a written report was the way to bring serious matters to Mr Webber’s attention. Mr Lee knew this because Mr Webber had instructed him to put concerns in writing on 12 February 2021.
  1. [278]
    In the absence of any further written complaint from Mr Lee regarding Mr Daley or any other member of kitchen staff, it was not incumbent upon Mr Webber to take any further management action with regard to that matter. However, Mr Webber did put in place a range of management actions to oversee the operation of the kitchen staff.
  1. [279]
    I find it is more likely than not that Mr Lee stated to Ms Lucas and potentially to Mr Webber that he had lost his joy for the kitchen and that he was struggling with managing the kitchen.
  1. [280]
    Mr Webber took management action over the period 13 February 2021 to 10 May 2021 in response to the matters Mr Lee had raised. He briefed Mr Lucas regarding the provision of positive feedback to Mr Lee during the period Mr Webber would be on leave. He put processes in place regarding a debrief after shifts in the kitchen. Mr Webber also offered to help with staffing and to delegate the ordering of food to another staff member.
  1. [281]
    When Mr Lee told Mr Webber and Ms Lucas about his symptoms and the issues he was facing, Mr Webber encouraged him to see a doctor and told him that this was a priority and that he would make arrangements for this to occur. I understand that Mr Lee could not recollect some of the things Mr Webber said in the meeting, but in consideration of the recollections of the three people involved in that meeting, I accept Mr Webber’s evidence about the support he offered Mr Lee.
  1. [282]
    The Appellant has questioned Mr Webber’s credit as a witness. However, in his evidence, Mr Webber made no attempt to suggest he had followed the formal policies of the Sovereign Hotel or that his actions were perfect. His evidence, and that of other witnesses, demonstrates that there were a range of complexities surrounding the management of the restaurant and the resort at that time. While Mr Webber did not enact the formal policies of the Sovereign Hotel following the 12 February 2021 incident, I find that in all the circumstances, the actions he took following that incident and over the period of time until 10 May 2021 were reasonable and taken in a reasonable way.
  1. [283]
    Mr Webber's management action may not have been perfect, but in circumstances where it appears that there were also issues with the way Mr Lee was conducting himself and the interactions between the kitchen staff generally, Mr Webber's actions were reasonable management actions taken to attempt to maintain a satisfactory working environment for Mr Lee, and by extension other kitchen staff. Mr Webber put measures in place to support Mr Lee to manage the kitchen. Mr Webber could not have been required to respond to further issues Mr Lee experienced with Mr Daley, if such issues existed, in circumstances where no such issues were reported to him. I do not accept that Mr Lee was in a position where he could not have raised such matters with Mr Webber.
  1. [284]
    Mr Lee was of the view that Mr Webber should have taken different management action or that the management actions he took were not sufficient. However, for the reasons given above, I find this was Mr Lee’s perception, rather than the reality of the management action taken.
  1. [285]
    I decline to consider the evidence before the Commission relating to the events of 15 and 16 May 2021. I decline to draw the conclusions that Mr Webber's management actions on that weekend (which have been accepted to be unreasonable), consequently render his management actions over the period of time from the February incident up to 10 May 2021 unreasonable. In the same vein, I will not use those recordings to make any findings about the way Mr Lee, in his role as Head Chef, interacted with Mr Daley in the kitchen during the earlier February incident.
  1. Conclusion
  1. [286]
    For completeness, I will address the matter of Mr Lee's evidence being taken with the assistance of an interpreter and the matters raised by the Respondent regarding inconsistent responses he gave. First, my impression of Mr Lee was that he was able to understand most of what was said during the hearing without the aid of the interpreter. Mr Lee's responses, on a number of occasions, pre-empted the interpreter's translation of the question being put to Mr Lee. This is not a criticism, as I understand the importance of being able to communicate in the language one feels most comfortable with. I have also seen Mr Lee's capacity to communicate in written and spoken English by way of exhibits, for example the email report of the February kitchen incident and the recordings of Mr Lee interacting with Mr Webber in May 2021. I am satisfied that Mr Lee had satisfactory capacity to understand what was being said at the hearing and to communicate his evidence.
  1. [287]
    There were a number of occasions where Mr Lee answered questions in a certain way and then, later on, or when pressed, provided a different answer. On occasion, I thought this may have been due to a question being asked in a slightly different way or due to the passage of time since the events and Mr Lee's memory being jogged by particular questions. At other times, it appeared that Mr Lee had changed his mind about the evidence he had given earlier. I will not draw an adverse conclusion about Mr Lee’s credit as a witness.
  1. [288]
    In my view, the evidence presented to the Commission was sufficient to demonstrate, on the balance of probabilities, that Mr Lee's psychological condition diagnosed on 10 May 2021 arose out of, or in the course of reasonable management action taken in a reasonable way in connection with his employment occurring over a period of time from February to 10 May 2021. The evidence was also sufficient to demonstrate that the injury arose out of Mr Lee’s expectation or perception of reasonable management action taken against him following the events of 12 February 2021.
  1. [289]
    Mr Lee's injury is excluded due to the operation of s 32(5) of the WCRA.
  1. [290]
    Having determined that Mr Lee suffered a work-related injury on 10 May 2021, it is not open to me to go on and determine that Mr Lee suffered an aggravation or a completely separate injury of PTSD which were not subject of his initial application for compensation.[311]
  1. [291]
    The Appellant has failed to discharge its onus to demonstrate the required matters for the Commission to uphold its appeal.
  1. Orders
  1. [292]
    I make the following orders:
  1. 1.
    Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is confirmed.
  1. 2.
    Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Footnotes

[1] Church v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 031 [24]-[27] ('Church').

[2] Appellant’s Further Amended Statement of Facts and Contentions filed in the Industrial Registry on 19 September 2024 [14].

[3] Respondent’s Further Amended Statement of Facts and Contentions filed in the Industrial Registry on 29 April 2024 [84].

[4] Respondent's Reply Submissions filed in the Industrial Registry on 14 January 2025 [3].

[5] Church (n 1).

[6] Respondent’s Reply Submissions (n 4) [5].

[7] Ibid [4].

[8] Appellant’s Closing Submissions filed in the Industrial Registry on 7 January 2025, 67.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Exhibit 15.

[13] Appellant’s Closing Submissions (n 8).

[14] Ibid 68.

[15] Ibid.

[16] Church (n 1) [33].

[17] Appellant’s Further Amended Statement of Facts and Contentions (n 2) 19.

[18] Appellant’s Closing Submissions (n 8) 47.

[19] King v Workers' Compensation Regulator [2019] QIRC 134 at [25] ('King').

[20] Appellant’s Closing Submissions (n 8) 48.

[21] Ibid.

[22] Jones v Dunkel (1959) 101 CLR 298.

[23] Appellant’s Closing Submissions (n 8) 48.

[24] Ibid 48.

[25] Ibid 49, 50 (citations omitted).

[26] Ibid 50.

[27] Ibid 52-54.

[28] Ibid 54.

[29] Ibid 55.

[30] Ibid 65.

[31] Respondent’s Reply Submissions (n 4) [12].

[32] Ibid.

[33] Ibid [13].

[34] Exhibit 25.

[35] Exhibit 25.

[36] Respondent’s Reply Submissions (n 4) [16].

[37] T7-4 ll5-10.

[38] Respondent’s Reply Submissions (n 4) [17].

[39] Exhibit 25.

[40] Respondent’s Reply Submissions (n 4) [19].

[41] Ibid [20].

[42] Ibid [21].

[43] The Respondent points in particular to 14(b) on page 18.

[44] Ibid [24].

[45] Respondent’s Reply Submissions (n 4) [25].

[46] Ibid [25].

[47] Ibid [26].

[48] Ibid [28].

[49] Ibid [29].

[50] Ibid [31], [32].

[51] Ibid [32].

[52] Ibid [32], [33].

[53] Appellant’s Closing Submissions (n 8) 53.

[54] T7-4 ll5-6.

[55] Respondent’s Reply Submissions (n 4) [34].

[56] [2008] QIC 52.

[57] [2022] QIRC 366.

[58] T7-28 ll13-40 and T1-3 ll33-37.

[59] Respondent’s closing submissions filed in the Industrial Registry on 27 November 2024 [92]-[97].

[60] T3-12 ll19-24.

[61] Exhibit 25.

[62] T3-14 ll31-34.

[63] T3-14 ll34-40.

[64] T3-15 ll10-11.

[65] T3-15 ll15-16.

[66] T3-15 ll40-46.

[67] T3-16 ll33-37.

[68] T3-16 ll39-41.

[69] T3-16 ll43-46; T3-17 ll1-3.

[70] T3-17 ll5-7.

[71] T3-17 ll3-18.

[72] T3-18 ll31-43.

[73] T3-19 l1.

[74] T3-19 ll3-6.

[75] T3-19 ll42-46.

[76] T3-20 ll1-9.

[77] T3-20 ll11-24.

[78] T3-21 l45 and T3-22 ll30-38.

[79] T3-22 ll15-18.

[80] T3-23 l18.

[81] T3-23 ll15-24.

[82] Exhibit 24.

[83] Exhibit 25.

[84] Exhibit 26.

[85] Respondent’s closing submissions (n 58) [98]-[104].

[86] T7-5 ll3-6.

[87] T7-5 ll10-15.

[88] T7-5 ll17-19.

[89] T7-6 ll22-32.

[90] T7-7 ll1-29.

[91] T7-7 ll1-2.

[92] T7-9 ll4-14.

[93] T7-7 ll13-14.

[94] T7-9 ll44-46 and T7-10 ll1-2.

[95] T7-9 l46.

[96] Respondent’s closing submissions (n 58) [104].

[97] Appellant’s closing submissions (n 8) 3.

[98] Ibid 3.

[99] Ibid 6.

[100] Ibid.

[101] Ibid.

[102] T1-46 ll14-27.

[103] T1-47 ll4-9.

[104] With reference to the three-way conversation when Mr Webber telephoned in during the course of the conversations with Daley on the morning of 16 May 2021, T1-52 l36-T1-53 l8.

[105] T2-4 ll9-26.

[106] T2-4 ll9-26.

[107] T2-11 ll20-25.

[108] T2-11 l31- T2-12 l40.

[109] T2-13 ll2-13.

[110] Appellant’s closing submissions (n 8) 22.

[111] Ibid 23.

[112] Exhibit 12.

[113] Appellant’s Closing Submissions (n 8) 24.

[114] T6-30 ll16-23.

[115] Appellant’s Closing Submissions (n 8) 25.

[116] Ibid.

[117] Ibid 26.

[118] Ibid 26, 27.

[119] Ibid 27.

[120] T2-19 l3 to T2-22 l12.

[121] Exhibit 14.

[122] Appellant’s Closing Submissions (n 8) 31.

[123] Ibid 32-33.

[124] Exhibit 22.

[125] Appellant’s closing submissions (n 8) 33.

[126] Exhibit 22.

[127] T6-4 ll35-43.

[128] Ibid.

[129] Exhibit 29.

[130] Exhibit 30.

[131] Ibid.

[132] Exhibit 30.

[133] Ibid.

[134] Appellant’s closing submissions (n 8) 36.

[135] Ms Oh’s evidence is T7-13 to T7-18; case note is Exhibit 27.

[136] Session notes, 2, last paragraph and 4 4th paragraph.

[137] Appellant’s Closing Submissions (n 8) 37; T7-15 ll29-35.

[138] T7-15 – T7-17.

[139] Exhibit 24.

[140] Exhibit 25.

[141] Exhibit 26.

[142] Appellant’s Closing Submissions (n 8) 38.

[143] Exhibit 24.

[144] Exhibit 25.

[145] Appellant’s Closing Submissions (n 8) 40.

[146] Ibid 41-2.

[147] T3-11 ll18-41; Respondent’s Reply Submissions (n 4) [37].

[148] T2-20 ll22-24.

[149] T2-20 l25.

[150] T2-21 ll7-13.

[151] T2-21 ll13-17.

[152] Exhibit 14.

[153] Exhibit 14.

[154] Respondent’s Reply Submissions (n 4) [44].

[155] T7-9 ll44-45.

[156] T7-9 l46.

[157] T7-10 ll1-2.

[158] Exhibit 23.

[159] Appellant’s Further Amended Statement of Facts and Contentions (n 2) 1-6.

[160] Appellant’s Closing Submissions (n 8) 70.

[161] Ibid 55, 56.

[162] Paragraph [49] of this decision.

[163] Respondent’s Reply Submissions (n 4) [25].

[164] I deal with this at paragraph [228] of these reasons.

[165] T3-14 ll32-33.

[166] T1-28.

[167] T1-29 ll33-34.

[168] T1-29 ll39-40.

[169] T1-31 ll38-49 and T1-32 l1.

[170] Respondent’s closing submissions (n 58) [9].

[171] T1-32 ll6-7.

[172] T2-55.

[173] T1-35 ll48-49.

[174] T1-32 ll17-18.

[175] T1-32 ll17-21.

[176] Exhibit 1.

[177] T2-55 ll11-20.

[178] T2-55 ll24-25.

[179] Respondent’s Closing Submissions (n 58) [14].

[180] T1-41 ll40-49 and T1-42 l1 (Day 8).

[181] TR 1-63 ll39-40.

[182] T1-10 ll39-48 and T1-11 ll1-18 (Day 8).

[183] T1-11 ll35-49 and T1-12 l1 (Day 8).

[184] Ibid [15]; T1-33 ll39-49 and T1-34 ll1-6.

[185] T1-13 ll1-2.

[186] Respondent’s Closing Submissions (n 58) [48].

[187] T1-12 ll25-40 (Day 8).

[188] T1-34 ll8-13.

[189] T2-60 ll24-29.

[190] T2-61 ll4-21.

[191] T2-61 ll27-35.

[192] T1-34 ll31-36.

[193] T2-62 ll25-29.

[194] Respondent’s Closing Submissions (n 58) [37].

[195] T1-24 ll23-24.

[196] T1-24 ll41-44 and T1-25 ll41-44 (Day 8).

[197] T1-26 ll21-22 – (Day 8).

[198] T1-26 ll29-33 – (Day 8).

[199] T1-26 ll35-49, T1-27 l1; T1-28 ll48-49 (Day 8).

[200] T1-27 ll46-48 (Day 8).

[201] T1-30 ll13-14 (Day 8).

[202] T1-29 ll14-18 (Day 8).

[203] T1-29 ll25-31 (Day 8).

[204] T1-43 ll7-8 (Day 8).

[205] T1-43 ll24-32 (Day 8).

[206] T1-50 ll17-32 (Day 8).

[207] T1-51 ll18-19 and 21-35 (Day 8).

[208] Respondent’s Closing Submissions (n 58) [37].

[209] T1-52 ll3-8 (Day 8).

[210] T1-35 ll24.

[211] T1-35 ll13-18.

[212] T2-70 ll36-42; Respondent’s Closing Submissions (n 58) [40].

[213] T2-70 ll44-49 and T2-71 ll1-7; Respondent’s Closing Submissions (n 58)  [40].

[214] T1-35 ll29-31.

[215] T1-35 ll38-39.

[216] T5-14 ll6-40.

[217] T5-14 ll44-45.

[218] T5-15 ll12-19.

[219] Respondent’s Closing Submissions (n 58) [29].

[220] T2-48 ll26-36.

[221] T2-25 and T2-26.

[222] T7-34 ll22-38.

[223] T2-76 ll6-26.

[224] Respondent’s Closing Submissions (n 58) [62].

[225] T1-13 ll44-49 and T1-14 l1 (Day 8).

[226] T1-14 ll9-23 (Day 8).

[227] T1-14 ll25-29.

[228] Respondent’s Closing Submissions (n 58) [61].

[229] T1-15 ll18-28 (Day 8).

[230] T1-16 ll27-49 (Day 8); Respondent’s Closing Submissions (n 58) [63].

[231] T1-19 (Day 8).

[232] T5-48 ll45-47.

[233] Exhibit 20.

[234] T5-49 ll23-27.

[235] T5-54 ll37-41.

[236] T5-54 – T5-55.

[237] T5-56 ll14-21.

[238] Respondent’s Closing Submissions (n 58) [67].

[239] Ibid [68].

[240] T7-46 ll12-38.

[241] T7-46-T7-47.

[242] T7-47 ll15-19.

[243] T7-47 ll23-28.

[244] T7-52 ll44-46.

[245] Respondent’s Closing Submissions (n 58) [75].

[246] T2-78 l46.

[247] Respondent’s Closing Submissions (n 58) [76].

[248] Ibid [77].

[249] T7-47 ll35-47 and T7-58 ll1-21.

[250] T7-48 ll23-33.

[251] T7-48 ll33-36.

[252] T7-48 ll38-47.

[253] T7-49 ll1-4.

[254] T2-83 ll16-20 and 33-41.

[255] T2-83; T2-84.

[256] T2-84 ll34-48;

[257] T2-85.

[258] T2-85.

[259] T2-86.

[260] T2-86.

[261] T2-87 ll23-32.

[262] T1-52 ll38-40.

[263] Respondent’s Closing Submissions (n 58) [24].

[264] T1-20 ll43-48 (Day 8).

[265] T1-65 ll22-24 (Day 8).

[266] T7-52 ll38-40.

[267] T7-49 ll13-20.

[268] T7-50 ll21-27.

[269] T1-21 ll11-16.

[270] T1-13 l9.

[271] T1-13 ll10-17 (Day 8); Respondent’s Closing Submissions (n 58) [89].

[272] Respondent’s Closing Submissions (n 58) [90], [91].

[273] T1-14 ll34-36 (Day 8).

[274] T1-15 ll4-6 (Day 8).

[275] T1-15 ll6-8.

[276] T1-21 ll42-49.

[277] Exhibit 32.

[278] Exhibit 1.

[279] Respondent’s Closing Submissions (n 58) [107].

[280] McMah v Simon Blackwood (Workers’ Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 13 at [37]; QANTAS Airways Limited v Q-COMP [2006] QIRComm 27.

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

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

[283] Prizeman v Q-COMP [2005] QIC 53 per Hall P.

[284] Workcover Queensland v Kehl [2002] QIC.

[285] Respondent’s Closing Submissions (n 58) [108].

[286] [2014] ICQ 9, [47].

[287] Respondent’s Closing Submissions (n 58) [110].

[288] Ibid.

[289] Ibid [111].

[290] Appellant’s Closing Submissions (n 8) 74.

[291] Ibid 70.

[292] T1-33 l33 to T1-34 l6.

[293] T1-34 ll15-26.

[294] T1-34 ll31-45.

[295] Appellant’s Closing Submissions (n 8) 71, 72.

[296] Ibid.

[297] The Appellant here refers to the cross-examination of Mr Webber (T8-22 to T8-55).

[298] Exhibit 30.

[299] The Appellant points to T8-50.

[300] T8-51-T8-54.

[301] Respondent’s Reply Submissions (n 4) [11].

[302] [2014] ICQ 9, [47].

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

[304] Sabo vQ-COMP [2010] ICQ 47, [21] (Hall P).

[305] Lawton v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 99, [65] (Deputy President O'Connor) citing Keen v Workers’ Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42, 47-48 (Lander J).

[306] Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197, 197 (President Hall).

[307] Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139, 146 (President Hall).

[308] Lawnton (n 304) [68].

[309] WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93, 94 (President Hall).

[310] Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481, 481 (President Hall).

[311] Church (n 1) [33].

Close

Editorial Notes

  • Published Case Name:

    Lee v Workers' Compensation Regulator

  • Shortened Case Name:

    Lee v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 199

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    31 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
1 citation
Jump To
Cite 1 - [2017] QIRC 88
Bowers v Q-COMP [2002] QIC 8
2 citations
Jump To
Cite 1 - [2002] QIC 8
Cite 2 - [2002] QIC 8
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
1 citation
Jump To
Cite 1 - (2005) 178 QGIG 197
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Commercial and General Insurance Brokers Pty Ltd v Mather [2006] QIRC 27
2 citations
Jump To
Cite 1 - [2006] QIRC 27
Cite 2 - [2006] QIRC 27
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Delany v Q-Comp [2005] QIC 11
1 citation
Jump To
Cite 1 - [2005] QIC 11
Frazier v Gardner (No. 2) [2002] ICQ 23
1 citation
Jump To
Cite 1 - [2002] ICQ 23
Groos v WorkCover Queensland [2008] QIC 52
2 citations
Jump To
Cite 1 - [2008] QIC 52
Cite 2 - [2008] QIC 52
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
1 citation
Jump To
Cite 1 - (1998) 71 SASR 42
Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056
1 citation
Jump To
Cite 1 - [1998] SASC 7056
Kelly v Workers' Compensation Regulator [2022] QIRC 366
2 citations
Jump To
Cite 1 - [2022] QIRC 366
Cite 2 - [2022] QIRC 366
King v Workers' Compensation Regulator [2019] QIRC 134
2 citations
Jump To
Cite 1 - [2019] QIRC 134
Cite 2 - [2019] QIRC 134
Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
1 citation
Jump To
Cite 1 - [2015] QIRC 99
McMah v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 13
2 citations
Jump To
Cite 1 - [2014] QIRC 13
Cite 2 - [2014] QIRC 13
Newman v Department of Corrective Services and The Queensland Public Sector Union of Employees [2005] ICQ 53
1 citation
Jump To
Cite 1 - [2005] ICQ 53
Prizeman v Q-Comp (2005) 180 QGIG 481
1 citation
Jump To
Cite 1 - (2005) 180 QGIG 481
Prizeman v Q-Comp 180 QGIG (2005) QIC 53
2 citations
Jump To
Cite 1 - (2005) QIC 53
Cite 2 - (2005) QIC 53
Q-Comp v Hohn (2008) 187 QGIG 139
1 citation
Jump To
Cite 1 - (2008) 187 QGIG 139
Q-Comp v Hohn [2008] QIC 56
1 citation
Jump To
Cite 1 - [2008] QIC 56
Sabo v Q-COMP [2010] ICQ 47
1 citation
Jump To
Cite 1 - [2010] ICQ 47
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
3 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
Cite 3 - [2020] QIRC 97
WorkCover Queensland v Kehl (2002) 170 QGIG 93
1 citation
Jump To
Cite 1 - (2002) 170 QGIG 93

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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