Dones v Workers' Compensation Regulator [2026] QIRC 255

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dones v Workers' Compensation Regulator [2026] QIRC 225 PARTIES: Dones, Venilu (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2022/2 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 15 July 2026 HEARING DATES: 29 April 2025 to 2 May 2025 MEMBER: HEARD AT: O'Neill IC Brisbane ORDERS: 1. The appeal is dismissed. 2. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 14 December 2021 is confirmed. 3. Failing agreement on costs, the question of costs is to be the subject of a further application to the Commission and shall be determined on any written submissions received and without further oral hearing. -- 1 of 68 -- 2 CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – psychiatric or psychological injury – where the appellant appeals decision of the respondent confirming WorkCover's rejection of the appellant's application for compensation – whether the appellant's employment is the major significant contributing factor to the psychological injury within the meaning of s 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action is reasonable – where the employment was not the major significant contributing factor – where relevant management action was reasonable and reasonably taken – where the injury is excluded by operation of reasonable management action – appeal dismissed. LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11, s 32, s 141 CASES: Allen v Workers' Compensation Regulator [2018] QIRC 41 Allwood v Workers' Compensation Regulator [2017] QIRC 088 Avis v WorkCover Queensland (2000) 165 QGIG 788 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 Briffa v Q-COMP (2005) 180 QGIG 70 Browne v Dunn (1893) 6 R 67 (HL) -- 2 of 68 -- 3 Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437 Coombes v Q-COMP (2007) 185 QGIG 680 Davis v Blackwood [2014] ICQ 009 Deshong v Workers' Compensation Regulator [2021] QIRC 205 Ebsworth v Workers' Compensation Regulator [2017] QIRC 028 Fox v Percy [2003] 214 CLR 118 Gillan v Workers' Compensation Regulator [2021] QIRC 315 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027 Jones v Dunkel (1959) 101 CLR 298 Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 Mahaffey v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 116 McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180 Murphy v Workers' Compensation Regulator [2022] QIRC 264 Newman v Blackwood [2015] ICQ 014 -- 3 of 68 -- 4 Nichols v Workers' Compensation Regulator [2017] QIRC 11 O'Brien v Q-Comp (2007) 185 QGIG 383 Pollock v Wellington (1996) 15 WAR 1 Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481 Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 Rossmuller v Q-COMP [2010] ICQ 4 R v Butler [2009] QCA 111 R v Turner [1975] QB 843 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010 State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97 Taylor v Workers' Compensation Regulator [2017] QIRC 6 Timbs v Shoalhaven City Council [2004] NSWCA 81 -- 4 of 68 -- 5 Tuesley v Workers' Compensation Regulator [2021] QIRC 071 Weiss v Workers' Compensation Regulator [2020] QIRC 111 West v Government Insurance Office (NSW) (1981) 148 CLR 62 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 Workers' Compensation Regulator v Langerak [2020] ICQ 2 Reasons for Decision [1] Ms Venilu Dones ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to deny her application for compensation relating to an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). [2] The Appellant lodged an application for compensation with WorkCover Queensland ('WorkCover') on 2 May 2019 for a psychological/psychiatric injury she alleges she sustained at work between June 2017 and April 2019. [3] At the time of making the application for compensation the Appellant was employed by TAFE Queensland ('TAFE') as an Information Systems Officer ('ISO') within the TAFE Queensland English Language and Literacy Services ('TELLS') team. [4] TELLS is funded by the Commonwealth Government to deliver a program called the Adult Migrant English Program. The role of an ISO is of an administrative nature and involves entering student attendance data into the Commonwealth system and booking childcare for students involved in the program. [5] In broad summary, the Appellant alleges that primarily in the period from June 2017 to the -- 5 of 68 -- 6 end of April 2018 she was subjected to bullying, discrimination and differential treatment in the workplace, by her supervisor, Ms Lynn Locke, and other managers within TELLS. [6] The timing of the application is significant because the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 was introduced into Parliament and passed on 22 October 2019. Section 34 of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 amended the meaning of injury for a psychiatric or psychological injury to remove "the major" as a qualifier for employment's 'significant contribution' to the injury. [7] This means that the Appellant has to satisfy the more stringent test for a psychiatric or psychological injury in the previous iteration of section 32 of the Act, that is, that her employment with TAFE was the major significant contributing factor to the injury. Issue for determination [8] The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act, current as of 2 May 2019, relevantly provided: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or (b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury. (2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following— (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation— (i) a personal injury other than a psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; (ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a -- 6 of 68 -- 7 significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way— • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment (Emphasis added) [9] The appeal to the Commission is by way of a hearing de novo upon which the onus of proof falls on the Appellant.1 The Commission must be satisfied that the worker has suffered an injury within the meaning of the Act.2 [10] The Appellant must prove, on the balance of probabilities,3 that the claim is one for acceptance. That is, that the Appellant suffered an injury; the injury arose out of, or in the course of her employment with the employer; and the employment with the employer was the major significant contributing factor to the injury. [11] The Appellant must also prove that her injury is not excluded by the reasonable management action provision of s 32(5) of the Act. [12] In the Respondent's Statement of Facts and Contention4 ('RSOFAC') the Respondent: (a) Accepts that the Appellant is a 'worker' in accordance with s 11 of the Act. (b) Admits that the Appellant sustained a personal injury of a psychiatric nature. 1 Rossmuller v Q-COMP [2010] ICQ 4. 2 McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301. 3 Briffa v Q-COMP (2005) 180 QGIG 70. 4 Respondent's Statement of Facts and Contentions filed on 27 August 2024. -- 7 of 68 -- 8 (c) Contends that the Appellant's injury did not arise out of or in the course of the Appellant's employment with TAFE, but rather from personal, non-work-related stressors relating to her relationship, family and finances. (d) Contends that any injury sustained by the Appellant is withdrawn from the operation of s 32 of the Act by virtue of the reasonable management provisions contained in s 32(5) of the Act.5 [13] Given the Respondent's contention that the injury does not arise out of, or in the course of the employment, it is clear that the Respondent also contends that the Appellant's employment was not the major significant contributing factor to the injury. [14] This means that the issues requiring determination in this appeal are: • Whether the Appellant's injury arises out of, or in the course of, her employment with TAFE; • Whether that employment is the major significant contributing factor to the injury; • Whether the injury arises out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment (s 32(5)(a) of the Act); • Whether the injury arose out of, or in the course of, the worker's expectation or perception of reasonable management action being taken against the worker (s 32(5)(b) of the Act). [15] After carefully considering all of the evidence in this matter and the submissions of both parties, on the balance of probabilities, I find that the appeal should be dismissed because: • On the available evidence, I am not satisfied that the Appellant's employment with TAFE was the major significant contributing factor to her injury; • The Appellant's injury arose out of, or in the course of reasonable management action taken in a reasonable way in connection with her employment and as a consequence, s 32(5)(a) of the Act is enlivened to exclude the injury; and • The Appellant's injury arose out of, or in the course of, her expectation or perception 5 This means that both s 32(5)(a) and (b) of the reasonable management exclusions in the Act will fall for consideration by the Commission. -- 8 of 68 -- 9 of reasonable management action being taken against her, and s 32(5)(b) of the Act is enlivened to exclude the injury. [16] My reasons follow. Evidence [17] The Appellant called the following witnesses to give evidence – i) Ms Venilu Dones, the Appellant; ii) Ms Beata Cyagan; iii) Ms Yazmin Monge Verde; iv) Mr Laurie Francis, Psychologist; and v) Dr Mahsa Davari, Psychiatrist. [18] The Respondent called the following witnesses to give evidence – i) Mr Scott Bray; and ii) Ms Lynn Locke. [19] In the Appellant's Statement of Facts and Contentions ('ASOFC'),6 a number of stressors are identified which the Appellant contends have given rise to her psychological injury. Stressor 1 [20] The Appellant alleges that after Ms Lynn Locke commenced as her supervisor (in approximately June 2017), she was spoken to by Ms Locke in an intimidating and condescending tone of voice in an open office which caused her to feel embarrassed, humiliated, and demeaned. In the ASOFC, the Appellant provided three examples of this alleged conduct which she described as 'minor issues'. Appellant eating her lunch at her desk [21] The Appellant alleges that in approximately June 2017, she had started to eat her lunch at her desk, and she was challenged about this by Ms Locke in an intimidating manner and told that she was not allowed to eat her lunch at her desk.7 The Appellant alleged that she was singled out because she did not hear Ms Locke 'pull up anyone else' about eating at their desk.8 6 Appellant's SOFC filed 30 July 2024. 7 T.1-8, ll.20-40; T.1-57, ll.17-21. 8 T.1-8, l.26. -- 9 of 68 -- 10 [22] Ms Locke in her evidence confirmed that she had previously questioned Ms Dones as to why she was eating at her desk but denied that she had spoken loudly or inappropriately in doing so.9 [23] I am therefore satisfied that this stressor has been substantiated. Calling out across the room [24] The Appellant alleges that on another occasion sometime between June and December 2017 she called out to Ms Locke and Ms Locke told her that she should not be yelling across the room. The Appellant alleged that others did it, including Ms Locke.10 [25] Once again, Ms Locke in her evidence confirmed that a conversation of this nature had occurred with Ms Dones and explained the circumstances in which it occurred.11 This stressor has been substantiated. Questioning whether the Appellant's afternoon tea was her lunch [26] The Appellant alleges that on occasions Ms Locke would question her when she was having afternoon tea as to whether it was her lunch. Ms Dones gave evidence of this occurring in the week commencing 5 February 2018, and that Ms Locke spoke to her in a very condescending, very authoritative and unfriendly manner. The Appellant alleges that she was singled out by Ms Locke as this did not occur with other staff.12 [27] Ms Locke had some recollection of this event and confirmed that she had on a previous occasion asked the Appellant whether she had had lunch or not.13 [28] Given that Ms Locke has confirmed having some recollection of speaking to the Appellant at afternoon tea about whether she had taken a lunch break, this stressor has been substantiated. Ms Locke's unacceptable conduct [29] In addition to the specific examples of Ms Locke's conduct considered above, the Appellant also appears to allege unparticularised behaviour of Ms Locke involving speaking to her in 9 T.3-55, ll.35-42; T.3-61, ll.5-25. 10 T.1-8, ll.44-49; T.1-9, ll.1-14. 11 T.3-61, ll.30-45; T.3-62, ll.1-25. 12 T.1-12, ll.1-27. 13 T.3-64, ll.24-45; T.3-65, ll.1-25. -- 10 of 68 -- 11 an intimidating and condescending tone of voice in the open office area. The Appellant alleges that this caused her to feel embarrassed and demeaned. This is part of a broad allegation by Ms Dones that she was bullied by Ms Locke in the period from June 2017 to April 2018. [30] Ms Dones in her evidence stated that Ms Locke's behaviour towards her was condescending and she would be ignored.14 The Appellant suggested that this conduct started to occur around June 2017, that is when she felt the intimidation from Ms Locke commenced.15 [31] The Appellant called evidence from Ms Beata Cygan. Ms Cygan was the Appellant's line manager when she returned to work for TAFE in April 2017.16 [32] Ms Cygan provided evidence relevant to the flexibility she afforded staff regarding starting and finishing times and attending appointments whilst she was the manager of the ISOs. [33] Ms Cygan confirmed that she was Ms Dones' manager only for a couple of months in 2017 prior to Ms Locke taking over the restructured role.17 Ms Cygan then moved to another section within TELLS in which she was positioned some 20 to 30 metres away from the Appellant's team.18 [34] Ms Cygan provided no evidence supportive of the Appellant's allegations about the alleged conduct of Ms Locke. The evidence of Ms Cygan generally was of limited relevance to the issues to be determined by the Commission. [35] The Appellant also called Ms Yazmin Monge Verde who was also employed as a casual ISO in TELLS during the period relevant to the appeal. [36] Ms Verde contended that there were double standards in the manner in which Ms Locke treated the team, particularly in relation to starting late or finishing early or absences during the day.19 In effect, Ms Verdes alleged that there was a group of ISOs within TELLS that were treated more favourably by Ms Locke.20 [37] To the extent that Ms Verdes provided evidence relevant to Ms Locke's treatment of the Appellant, it was limited to an observation that Ms Dones was under too much pressure and 14 T.1-9, ll.43-49 15 T.1-8, ll.41-42. 16 T.1-80, ll.16-17. 17 T.1-84, ll.7-33. 18 T.1-89, ll.29-40. 19 T.2-10, ll.15-33; T.2-11, ll.25-45; T.2-18. 20 T.2-13, ll.23-35. -- 11 of 68 -- 12 that Ms Locke was constantly calling her out for everything.21 [38] I am not satisfied that the Appellant has established that she was bullied by Ms Locke in the manner she alleges for the reasons that follow. [39] Firstly, the allegation is not supported by contemporaneous documentary evidence. The file notes record Ms Locke affording the Appellant significant flexibility in her attendance at work during 2018. If Ms Locke wanted to bully the Appellant, this would have been a perfect opportunity to do so. Instead, Ms Locke allowed the Appellant flexibility in her starting and finishing times due to her various personal issues. [40] Secondly, the contemporaneous meeting notes including the summary of the one-on-one meetings between the Appellant and Ms Locke are not consistent with the Appellant being bullied by Ms Locke and in fact indicate that a professional relationship was in place between them. [41] Thirdly, the contemporaneous documentary evidence confirms that both Ms Locke and Mr McAuliffe provided support to the Appellant when she was experiencing significant personal stressors as follows: • The file note of 11 June 2018 of the monthly meeting between Ms Locke and the Appellant records Ms Locke commencing the meeting with a welfare check to see how the Appellant was following some recent deaths.22 • On 28 August 2018, the Appellant emails Mr Bray in response to his email checking on her progress in completing her timesheets (which were significantly behind). In that email Ms Dones notes that she had a few emergencies and had some issues at home.23 • On 30 August 2018 the Appellant requested a meeting with Ms Locke and advised that she and her husband were struggling financially and were on the verge of losing their home. Ms Dones sought flexibility with her starting time on 4 September 2018 to attend a financial counsellor.24 As noted later in these reasons, at this meeting, the Appellant appears to express some suicidal ideation. This request was approved and additional support was provided to the Appellant. • On 10 December 2018 the Appellant requested a meeting with Ms Locke and revealed 21 T.2-18, ll.1-2. 22 Exhibit 1, p 122. 23 Exhibit 1, p. 124 – File note dated 28 August 2018. 24 Ibid, pp.124-125 – File note dated 30 August 2018. -- 12 of 68 -- 13 that she was suffering from depression.25 The file note records Ms Locke advising the Appellant that she would check in on her regularly and sometimes it would just be a hand on her shoulder so she (Ms Dones) knew that Ms Locke was thinking of her.26 Once again, both Ms Locke, Mr Bray and Mr McAuliffe took further steps to support the Appellant. • On 11 December 2018, Mr Bray contacts People and Culture to seek advice regarding actions to support the Appellant.27 Mr McAuliffe and Ms Locke meet with the Appellant to suggest she seeks a medical certificate setting out what support she requires.28 • On 12 December 2018, Mr McAuliffe sends a follow-up email to Ms Locke confirming the conversation held on 11 December 2018.29 [42] Fourthly, Mr Bray's meeting record of the meeting held on 27 April 2018 notes that when the allegation was raised by the Appellant that Ms Locke had been speaking to her harshly, Mr McAuliffe stated in the meeting that he could hear what Ms Locke says from his desk and he had not heard Ms Locke talking to staff in a tone that was not appropriate.30 Mr Bray in his evidence to the Commission confirmed that Mr McAuliffe was seated nearby to Ms Locke in the office and that he had said this in the meeting. Further, Mr Bray observed that it was an open plan office and that if anyone was raising their voice or speaking inappropriately, he would also have heard it.31 [43] Finally, I have carefully considered Ms Locke's evidence, and her demeanour whilst she was giving evidence, including being cross-examined by the Appellant. I do not consider that her evidence, or her presentation in the witness box, was consistent with the allegation that she bullied Ms Dones. [44] To the extent that the evidence of Ms Verdes summarised at paragraphs [36] and [37] above was supportive of the allegation of bullying by Ms Locke, I note during cross-examination Ms Verdes accepted that she had applied for a TAFE vocational placement coordinator position and that she was unsuccessful in her application. Ms Verdes further accepted that she blamed Ms Locke for her failure to secure that position.32 25 Ibid, p. 129 – File note dated 10 December 2018. 26 Ibid. 27 Ibid, p.130 – File note dated 11 December 2018. 28 Exhibit 1, p. 130 – File note dated 11 December 2018. 29 Ibid, File note dated 12 December 2018; p. 158 – Email from Mr McAuliffe dated 12 December 2018. 30 Exhibit 1, pp. 141-142: Meeting Record: 27 April 2018. 31 T.3-46, ll.28-42. 32 T.2-26, ll.18-33. -- 13 of 68 -- 14 [45] I am satisfied that Ms Verdes bore some degree of animosity towards Ms Locke due to her perception that Ms Locke had played some role in her not obtaining the position. As a consequence, I intend to treat her evidence with some caution. To the extent of there being any inconsistency in the evidence between Ms Verdes and the Respondent's witnesses, I prefer the evidence of the Respondent's witnesses. [46] Given the above, I am not satisfied that the Appellant has established that there was a general course of conduct by Ms Locke where she was bullied and intimidated as she alleges. The knife incident [47] In the ASOFC, the Appellant describes this incident as being a 'major issue'. In the AOSFC the Appellant states that the knife incident was the determining factor in Ms Locke's unreasonable and unacceptable behaviour as her supervisor, because she could no longer tolerate Ms Locke's behaviour and misconduct towards her.33 [48] Ms Dones gave evidence that this incident occurred on Thursday, 8 February 2018. She described the incident in the following manner in her evidence: And then by Thursday, um – so I was still rushing to get my work done, and I get up again, and sh – and – and because she was in the kitchen at that time, um, the kitchen – let's say, uh, my desk is here, the kitchen is probably – sorry – orientation's a bit – anyway, I walk away from my desk, and then she is about two – two or – two to three – two – uh, two – two to three metres away from me. She was clearing – she was unloading the dishwasher at that day. So I stood near my desk and I said to her – I looked to her and said, "Lynn." I said, "I have a – I have a question, work related." And because she was bent – bent down to – to remove stuff from the dishwash – dishwasher, and as she got up and turned to me, she had a knife, and she said to me, "What is it?" And that – I felt threatened and intimidated. Why would she do that? I mean, it was an open space floor plan office, and everyone learned to just focus in their own zone.34 [49] Ms Dones went on to confirm that Ms Locke did not move away from the dishwasher, she simply stood up from a bending position holding a knife in her hand. Ms Dones described that knife as having approximately a six-inch blade.35 The Appellant provided the following further evidence about this incident: ‑ ‑ ‑ blade?‑‑‑About probably six inches. And when she said that to me with a face that – like, angry, and I – I – I – I – I – I was taken back like that and I didn't know what to say. I was frozen. And I just walked away, go back to my desk, and, um – actually, before I did that, I heard two ladies behind me because there's a desk behind near where I was standing, and they were the friends of Lynn. 33 See also the Appellant's submissions filed 16 July 2025, [7]. 34 T.1-12, ll.27-38. 35 T.1-12, ll.40-48; T.1-13, ll.1-31. -- 14 of 68 -- 15 [50] The incident as initially described by the Appellant in her evidence appears relatively innocuous and benign. It is somewhat difficult to understand why Ms Dones would consider that there was some form of threat from Ms Locke if the incident occurred as she describes. It is equally not clear why she found the incident so distressing. [51] In the course of cross-examination, Ms Dones alleged that Ms Locke held the knife up about shoulder height pointed towards her and said, "what is it". The Appellant confirmed that Ms Locke did not jab at her with the knife and confirmed that they were approximately two to three metres apart.36 [52] The Appellant went on to confirm that she went back to her desk and was very upset and distressed.37 In her evidence, the Appellant alleged that she had reported the incident to a number of people including: • Ms Emily Dell, Finance Manager who called by her desk on the afternoon of 8 February 2018 to say goodbye prior to going on leave. The Appellant said that Ms Dell told her to email Peter McAuliffe, the Business Services Manager and Ms Locke's line manager to report the incident.38 • Mr Chris Sense, Health and Safety Officer also in the afternoon on 8 February 2018.39 • An unidentified female AO4 supervisor who was working in a different program but in the same area.40 [53] Later in her evidence, the Appellant alleges that she informed a HR officer, Chantel Lyons, on 18 April 2018 about the knife incident, along with a number of other matters including a meeting that was conducted with her on 16 April 2018.41 [54] The difficulty that arises for the Appellant is that none of these witnesses were called by her to confirm her evidence that she raised the knife incident issue with them, either shortly after it occurred, or on 18 April 2018 in the case of Ms Lyons. [55] It is clear that the Appellant, although representing herself, was aware of her ability to call additional witness evidence. She did so in the form of calling evidence from Ms Beata Cygan, her former supervisor, and Ms Yazmin Verde, a former co-worker at TELLS. 36 T.1-58, ll.7-26. 37 T.1-14, ll.13-15. 38 T.1-14, ll.13-25. 39 T.1-14, ll.27-29. 40 T.1-14, ll.29-31. 41 T.1-21, ll.5-25. -- 15 of 68 -- 16 [56] Neither Ms Cygan nor Ms Verde gave any evidence relating to the knife incident. Not even to the extent that the Appellant had informed them that the knife incident occurred. [57] The further difficulty for the Appellant is that she alleges that the knife incident was witnessed by at least two other TELLS team members. Ms Dones subsequently confirmed in her evidence that when approached by her, these witnesses denied seeing the incident and refused to give evidence.42 [58] The Appellant's evidence was that she was advised by Ms Dell to email Mr McAuliffe, Business Manager to inform him about the knife incident, however, the Appellant failed to do so, either on 8 February 2018, or the next day.43 The Appellant's explanation for this failure was unconvincing in circumstances where she claims to have been highly distressed by the incident.44 [59] The Appellant in her submissions alleges that following her return from holidays in the Philippines, in the period from 20-28 February 2018, she emailed Mr McAuliffe to request a meeting to discuss Ms Locke's unreasonable and unacceptable behaviour, and the knife incident.45 The Appellant did give evidence about emailing Mr McAuliffe to arrange a meeting to discuss the knife incident.46 Further, the Appellant alleged that Mr McAuliffe responded and agreed to have a meeting and that Ms Locke would be at the meeting. This issue will be further considered below. [60] The Appellant did find time to email Ms Locke (the person she alleged had threatened her with a knife) to update her about where she was up to with her work (prior to her going on leave).47 [61] Ms Locke in her evidence confirmed that she had no recollection of the incident. Ms Locke further stated that the only thing she could think of was that she was doing something in the kitchen when Ms Dones came in and she was waving her hands around.48 [62] When it was suggested to Ms Locke that she had held the knife about shoulder height and pointed the knife directly at Ms Dones, Ms Locke stated: 42 T.1-14, ll.5-11; T. 1-58, ll.33-35. 43 T.1-14, ll.31-36. 44 Ibid. 45 Appellant's submissions, (n 33), [7]. 46 T.1-16, ll.35-42. 47 T.1-14, ll.36-38. 48 T.3-56, ll.20-31. -- 16 of 68 -- 17 I don't recall doing that. I don't believe that's something that I would do.49 [63] The consultation notes from the Appellant's treating General Practitioner, Dr Tam Thanh Thi Tran from Our Medical Home Loganholme are in evidence.50 Ms Dones consulted doctors from that medical centre on nine occasions between April and December 2018 without making any mention of the knife incident. [64] The Appellant's failure to mention the knife incident to her General Practitioner is inconsistent in my view with the incident being a significant factor giving rise to her psychological injury. [65] It is acknowledged that the Appellant does subsequently mention the knife incident to her treating Psychologist, Mr Laurie Francis, and to Dr Curtis Gray, Consultant Psychiatrist, however, those reports occur following a significant delay after the relevant event (more than 12 months). Further, those reports rely solely on the Appellant's version and recollection of the event. [66] In relation to the Appellant's evidence that the meeting that was held with her on 16 April 2018 was to address the knife incident and Ms Locke's treatment of her (see paragraph [59], the evidence available to the Commission establishes a different cause for the meeting. The Appellant's attendance at work in the first few months of 2018 was sporadic for various reasons. Ms Dones took frequent sick leave and on a number of days was late in attending work or had to leave early. She also took annual leave for a week from 12 February 2018 and then had a period of sick leave for a couple of weeks from 1 to 14 March 2018 when she had surgery for a trigger finger condition.51 [67] Further, in the first two weeks of April 2018, Mr Scott Bray, Executive Director of TELLS received a telephone call from the Faculty Director for the TAFE North Queensland region regarding a large accrual for the Cairns Faculty of approximately $180,000.00. Mr Bray confirmed that upon him investigating the issue, he discovered that three weeks of student data for the Cairns Faculty had not been entered into the Commonwealth system.52 The Appellant was the ISO responsible for the Cairns Faculty.53 [68] Mr Bray instructed Mr McAuliffe and Ms Locke to have a meeting with the Appellant to address her attendance and irregular work pattern and the backlog in the Cairns data.54 I am 49 T.3-56, ll.35-41. 50 Exhibit 1 – Agreed Bundle, pages 69-115. 51 Ibid, pp.119-121 – File Notes relating to Venilu Dones – entries from 3 January 2018 to 27 April 2018. 52 T.3-8, ll.1-15. 53 T.3-9, ll.7-12. 54 T.3-9, ll.15-23. -- 17 of 68 -- 18 satisfied that this was the reason that the meeting on 16 April 2018 was arranged. [69] That meeting involved the Appellant, Ms Locke and Mr McAuliffe. There is no mention in the minutes of that meeting of the Appellant raising the knife incident.55 The Appellant admitted in cross-examination that the knife incident was not raised by her in the meeting held on 16 April 2018.56 [70] This meeting will be addressed in greater detail later in these reasons, however, the Appellant was not happy with the outcomes from the meeting and subsequently raised her concerns with Mr Bray in a one-on-one meeting (initiated by her) on 20 April 2018.57 Mr Bray undertook to arrange a further meeting to be chaired by him, involving the Appellant, Mr McAuliffe and Ms Locke. [71] The first time that the knife incident was raised by the Appellant, was at the end of the further meeting held on 27 April 2018 involving Mr Bray, Mr McAuliffe, Ms Locke and the Appellant. Mr Bray confirmed that this was the first time he had heard anything about the knife incident.58 [72] In cross-examination of Mr Bray, it was put to him that Ms Dones raised the knife issue with him in their meeting on 20 April 2018. Mr Bray confirmed that there was no mention of either the knife incident, or Ms Locke's alleged behaviour towards Ms Dones in the meeting on 20 April 2018.59 [73] Mr Bray was an impressive witness. He presented to the Commission as a highly experienced executive officer who gave careful, precise and detailed evidence. In addition, his evidence was supported by contemporaneous notes he took during relevant interactions with the Appellant.60 Where there is any conflict between the evidence of Mr Bray and the Appellant, the Commission prefers and gives greater weight to the evidence of Mr Bray. [74] Mr Bray confirmed in his evidence that when Ms Dones raised the knife incident at the end of the meeting on 27 April 2018, he closely questioned her seeking more detailed information about the incident. Mr Bray asked Ms Dones what day this occurred, however, she was unable to confirm the date. He also asked her what time of day it occurred and noted that there was an assumption that it occurred around lunchtime because Ms Locke was in the 55 Exhibit 1, page 139 – Email from Peter McAuliffe to Ms Dones and Ms Locke providing a summary of the issues discussed at the meeting on 16 April 2018. 56 T.1-49, ll.10-17. 57 T.3-9, ll.29-45; T.3-10, ll.1-41; Exhibit 1 – pp. 120-121 – File note of discussion between Ms Dones and Mr Bray on 20 April 2018. 58 T.3-15, ll.40-41. Exhibit 1, pp. 141-142 – Meeting notes of 27 April 2018 meeting. 59 T.3-25, ll.8-37. 60 T.3-17, ll.30-41; T.3-27, ll.25-47. -- 18 of 68 -- 19 kitchen apparently preparing food. Mr Bray also asked the Appellant whether there were any witnesses, and Ms Dones did not offer the names of any witnesses.61 [75] The issue of what information the Appellant provided about the knife incident during the meeting on 27 April 2018 was re-visited in the cross-examination of Mr Bray. In response Mr Bray provided the following evidence: APPLICANT: And you recall that you prompted Ms Lynn to apologise - - -?---No. That's - - - - - - to me?--- - - - not correct. Lynn offered an apology based on the fact that she could not recall this incident happening. I did not – uh – give Lynn any instruction because for me, there was – there was nothing – there was no – you provided no detail around that incident. There was no date. There was no time. There were no witnesses. So I – I couldn't instruct Lynn to apologise to you for something that I actually wasn't confident even occurred. So is it right for me to say that those details that I did provided – provide during that meeting was only did on the minutes?---Incorrect. You did not provide any details. I prompted you. I questioned you numerous times throughout the meeting and not once did you provide any details. The only details that I, then, saw in relation to people who witnessed the alleged incident came when you submitted the WorkCover application. It – you – you've – you didn't mention anything about details on the Do you - - -?--- - - - 27th. Do you recall that during that meeting – during the knife issue that I raised, that I gave the detail how it occurred, where, and around what time, and what it was like – that - - -?---It - - - - - - you know, and that I did report it to Emma because she saw me broke down on my desk soon after the incident?---That's absolutely incorrect. At the meeting on the 27th, you raised the knife – the alleged incident at the end of the meeting. I asked you for details. I asked you for – could you confirm what date it happened? Could you confirm what time it happened? And were there anybody there that witnessed it? And you didn't provide any of that. Had you provided that detail at the meeting on the 27th, it would've been in the meeting notes. Well, do you recall – or do you agree that during that time that I was recounting what took place during that knife incident, that I did mention the name of the witnesses?---Incorrect. The first time that I ever became aware of those witnesses were when you submitted the WorkCover application. Those witnesses – had you mentioned names on the 27th of April – um – those people would have actually been called into a meeting to confirm whether they had witnessed anything or not. Do you – do you agree or do you remember when it was raised at that meeting about the knife incident, you asked Lynn about it, if she remembers. You agree that she said she can't recall?---Correct. Correct. And do you agree that when she said that, I responded – I reminded her who saw her when that took place?---That's incorrect. You provided no names as to anybody who witnessed that incident – that alleged incident. And even after I asked you whether anybody had witnessed that incident. 61 T.3-14, ll.40-47. Exhibit 1, pp. 141-142 – Meeting notes of 27 April 2018 meeting. -- 19 of 68 -- 20 So – so can you – can you recall that I mentioned the reminder of the incident that I mentioned Karen Duncan and Jen that saw her action of pointing the knife towards me?---So on the 27th of April, I asked you whether anybody witnessed the alleged incident, and you gave no names on the 27th of April. The only time I saw Lena Payne, Karen Duncan, and Chris Sensa's name was in a – uh – the WorkCover application which I believe may have been around October 2021, maybe. Um – in – in which those three staff members all provided statements to say that they did not witness any incident.62 (Emphasis added) [76] The latter part of that evidence appears to confirm that people who were alleged to have witnessed the incident, or received information from the Appellant after the incident, provided statements that they did not witness the incident. [77] The Respondent in its submissions contends that it is implausible to suggest that Ms Locke would behave in the threatening manner towards the Appellant as alleged. 63 The Respondent further submits that the evidence does not show the Appellant making any disclosures to her general practitioner regarding the event. [78] Further, the Respondent submits that Ms Dones insisted that she nominated a specific witness to the event during a meeting with Mr Bray on 27 April 2020. The evidence of Mr Bray refuted this contention, and he clarified that should a witness have been nominated by the Appellant, further investigations would have been conducted. [79] The Appellant's submissions regarding the knife incident have been summarised at paragraph [59] of these reasons. In relation to the Appellant's contention that sometime between 20 to 28 February 2018 she emailed Mr McAuliffe about the knife incident and requested a meeting, the following difficulties arise: • Firstly, neither the alleged email to Mr McAuliffe, nor his response email, are in evidence before the Commission. No explanation has been provided why these emails have not been tendered. It is therefore not possible for the Commission to confirm that the email was ever sent, or that the email in fact raised the knife issue. • Secondly, there is no indication in the files notes relating to Ms Dones of her sending an email to Mr McAuliffe in this timeframe requesting a meeting, nor Mr McAuliffe responding that a meeting would be arranged which would involve Ms Locke.64 The file notes do record an email from Ms Dones to Ms Locke on 26 February 2018 advising that she had to leave at 11:30 am that day because of a hospital appointment.65 62 T.3-43, ll.34-47; T.3-44, ll.1-38. 63 Respondent's submissions filed 29 May 2025, [13]. 64 Exhibit 1- Files notes, p. 120. 65 Ibid. -- 20 of 68 -- 21 • Thirdly, the evidence before the Commission establishes that the meeting that occurred on 16 April 2018 resulted from an instruction from Mr Bray to Mr McAuliffe and Ms Locke to arrange a meeting with Ms Dones arising from the complaint received from the Faculty Director for the TAFE North Queensland region.66 This is inconsistent with the meeting occurring as the result of an email request from the Appellant some seven weeks earlier. • Fourthly, the fact that the knife incident was not raised in the meeting held on 16 April 2018 is in my view, highly inconsistent with the meeting having been arranged at the request of the Appellant to raise the knife incident. • Finally, Mr Bray in his evidence confirmed that the meeting on 27 April 2018 was the first time that he, Mr McAuliffe and Ms Locke became aware of the knife incident.67 [80] Given that analysis, I cannot be satisfied that the Appellant emailed Mr McAuliffe sometime between 20 to 28 February 2018, raising the knife incident. [81] The analysis of the relevant evidence relating to the 'knife incident' undertaken above reveals that the only evidence of the incident arises from the Appellant. There is no corroborating or supporting evidence from any other witness, nor other corroborating evidence in the form of contemporaneous documentary evidence. [82] This gives rise to the question as to whether a Jones v Dunkel 68 adverse inference should be drawn by the Commission given the failure by the Appellant to call evidence from what appear to be material witnesses, at least to the extent of corroborating her version of there being a fresh complaint. [83] The rule in Jones v Dunkel has in subsequent cases been extended to cover not only cases in which a party with knowledge of the fact fails to testify, but also a failure by a party to call a material witness when it could be reasonably expected that they would.69 [84] The principles relating to the application of the rule in Jones v Dunkel were summarised by the New South Wales Court of Appeal in RHG Mortgage Ltd v Ianni.70 [85] The Court of Appeal held that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on 66 T.3-9, ll.15-23. 67 T.3-28, ll.8-11. 68 (1959) 101 CLR 298. 69 See by way of example, West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 69 (passengers in a vehicle involved in a road accident); Timbs v Shoalhaven City Council [2004] NSWCA 81, [89]-[93]. 70 RHG Mortgage Ltd v Ianni [2015] NSWCA 56, cited in White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041, [74]. -- 21 of 68 -- 22 the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: • Whether the uncalled witness would be expected to be called by one party rather than the other; • Whether his or her evidence would elucidate the matter; • Whether his or her absence is unexplained. [86] In the present case where the Appellant alleges that she told these witnesses about the knife incident on the same day she alleges that the incident occurred, and further that the witnesses observed her distressed state, I am satisfied that it is the Appellant who would be expected to call these witnesses to corroborate her evidence. [87] Had one or more of the witnesses confirmed Ms Dones' version that they were informed of the incident in the afternoon of 8 February 2018, this would be significant evidence supporting the Appellant's version of events. [88] The absence of these witnesses has not been explained by the Appellant. [89] I am satisfied that it is appropriate to draw an inference that had the witnesses been called by the Appellant, the evidence of Ms Dell, Mr Sense, the unidentified AO4 supervisor and Ms Lyons would not have assisted the Appellant. [90] The Commission also did not hear evidence from Mr Peter McAuliffe, Business Manager. Given his involvement in crucial meetings with the Appellant, evidence relating to his recollection of interactions with the Appellant would be relevant. To some extent the absence of this evidence is ameliorated by the availability of contemporaneous file notes and/or emails prepared by Mr McAuliffe. [91] Some explanation has been provided to the Commission about Mr McAuliffe's absence as a witness. It was confirmed by Mr Bray that Mr McAuliffe had resigned from his employment with TAFE Queensland and that this retirement had occurred due to ill-health in approximately May 2022.71 Given this, I do not consider it is appropriate to draw a Jones v Dunkel inference arising from the failure to call Mr McAuliffe as a witness. [92] As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator: 71 T.3-28, ll.40-45. -- 22 of 68 -- 23 The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.72 [93] In summary, in relation to this allegation I make the following findings: • The Appellant makes a serious allegation that she was threatened by Ms Locke with a knife on 8 February 2018. • The Appellant claims to have been significantly distressed by the incident. • The circumstances in which the incident is alleged to have occurred appear somewhat improbable. It would appear to be inherently implausible that Ms Locke would threaten the Appellant with a knife in the manner alleged. • Ms Locke has no recollection of the incident, and when the Appellant's allegations were put to her, Ms Locke in her evidence confirmed that it did not sound like something she would do. • The Appellant alleges that the incident was witnessed by a number of co-workers, however, when approached those witnesses have apparently confirmed that they did not see the incident, and did not want to give evidence. • Despite being highly distressed by the incident, Ms Dones did not mention the incident to her treating General Practitioners or seek medical treatment from them arising from this incident. • The Appellant claims to have reported the incident to at least three other TAFE staff on the afternoon of 8 February 2018, however, none of these people have been called to give evidence to the Commission. • The Appellant alleges she was advised by a senior manager to report the incident to Mr McAuliffe by email and failed to do so prior to going on leave. This failure is not plausibly explained by Ms Dones. • The Appellant alleges that following her return from leave, she did email Mr McAuliffe, however, this email and his alleged response is not in evidence, and there is no indication in the detailed file notes included in Exhibit 1 that this email communication occurred. 72 [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. -- 23 of 68 -- 24 • There is no mention of the knife incident in the meeting held on 16 April 2018 with Mr McAuliffe and Ms Locke. • There is no mention of the knife incident when the Appellant has an impromptu one- on-one meeting with Mr Bray on 20 April 2018. • The incident is not raised until the end of the meeting on 27 April 2018. When it is raised in the meeting, the Appellant is unable to provide Mr Bray with crucial information like the date, the time or the identity of any witnesses. Further, it does not appear that the Appellant informed Mr Bray that she had complained to a number of people at work on the afternoon of 8 February 2018. [94] For the detailed reasons set out in the preceding paragraphs, on the evidence available to the Commission, I am unable to reach the level of actual persuasion to be satisfied that the knife incident either occurred at all, or occurred in the manner suggested by the Appellant. [95] As a consequence, I find that this stressor has not been substantiated. It will not be further considered in this decision. Stressor 2 Six-month contract extension [96] In the ASOFC, the Appellant alleges in early April 2018 all contractors received a one-year contract extension except her. The Appellant received a contract extension for six months. The Appellant provided evidence confirming this allegation in the ASOFC.73 [97] There is no dispute from the Respondent that the Appellant was initially only offered a six- month extension to her contract. The circumstances in which this occurred and subsequently remedied will be further considered when management action is considered later in these reasons. [98] This stressor has been sufficiently substantiated. Two-on-one meeting on 16 April 2018 [99] The Appellant notes in her ASOFC that on 16 April 2018 she participated in a meeting with Ms Locke and Mr McAuliffe which she alleges was to be about her six-month contract extension. 73 T.1-17, ll.20-45. -- 24 of 68 -- 25 [100] The Appellant reports that the meeting focussed on several issues regarding her work performance, her attendance and a client complaint (the complaint regarding the Cairns TAFE data). [101] Once again, there is no dispute between the parties that a meeting between the Appellant, Mr McAuliffe and Ms Locke was arranged and conducted on 16 April 2018. There is documentary evidence available to the Commission confirming this, as well as oral testimony.74 [102] This stressor has been sufficiently substantiated. Stressor 3 One on one meeting with Mr McAuliffe [103] The Appellant alleges that she had a one-on-one meeting with Mr McAuliffe on 17 April 2018 in which she questioned him on how they came to the decision regarding the performance matters discussed in the meeting the preceding day. The Appellant alleges that Mr McAuliffe informed her that he could not comment and that she should write everything down and he would give it to Ms Locke to comment on.75 [104] In the ASOFC, she further alleges under Stressor 3 that on 18 April 2018 following the meeting with Mr McAuliffe she went to HR and spoke to Chantel Lyons and reported how she had been treated by Ms Locke, the results of the two-on-one meeting and her six month contract extension.76 The Appellant alleges that Ms Lyons told her that she could either make a formal complaint or try to address it with her management.77 [105] There is no independent evidence available to the Commission to confirm that either of these events occurred. As noted above, the Appellant has not called Ms Lyons to give evidence. [106] For reasons which have been touched upon above, and are addressed in greater detail below, I have concerns regarding the accuracy of the Appellant's recollection of events and conversations. 74 T.1-17, ll.40-45; T.1-18, ll44-48 to T.1-19 (Dones); T.3-8 to T.3-9 (Bray); T.3-53, ll.35-37 to T.3-55, ll.10 (Locke); Exhibit 1 – File Notes p.120; Exhibit 1 – p.139 Email from Peter McAuliffe dated 20 April 2018 – meeting summary. 75 T.1-20, ll.34-49. 76 T.1-21, ll.3-25. 77 Ibid. -- 25 of 68 -- 26 [107] The file notes are silent about there being any meeting between the Appellant and Mr McAuliffe on 17 or 18 April 2018 and are also silent about any meeting or discussion occurring with Ms Lyons on 18 April 2018. 78 [108] There is also no indication in the medical evidence available to the Commission that these alleged meetings contributed to the Appellant's injury. [109] Given this, I am not satisfied that this stressor has been sufficiently substantiated by the Appellant. I am also not satisfied that these events have causally contributed to the Appellant's injury. This stressor will also not be considered any further in these reasons. Stressor 4 [110] The Appellant alleges that on 20 April 2018 she was called by Mr Scott Bray to come to his office where she was informed that her contract would be extended to one year following Ms Wilkinson in HR bringing this to his attention.79 [111] Mr Bray in his evidence largely disputed the Appellant's version of events and what was discussed in the meeting but did confirm that he had a meeting with the Appellant on 20 April 2018 that was initiated by her coming to his office and requesting to see him.80 These factual discrepancies will be further considered below. [112] On the basis that Mr Bray confirms that a further meeting with the Appellant took place on 20 April 2018, this stressor has been substantiated. Stressor 5 [113] The fifth stressor identified by the Appellant in the ASOFC is the meeting that took place on 27 April 2018 involving Mr Bray, Mr McAuliffe, Ms Locke and herself. [114] Once again, there is no dispute between the parties that this meeting took place. Given this, this stressor has been substantiated. What occurred at this meeting will be considered in more detail later in these reasons. [115] The Appellant contends in the ASOFC that her stress levels did not decrease following the 27 April 2018 meeting, but in fact increased over the remainder of the year. She notes that by December 2018 she continued to experience anxiety and was having panic attacks during 78 Exhibit 1 – Files notes, p. 120. 79 T.1-21, ll.27-48; T.1-22, ll.5-20. 80 T.3-9, ll.29-47; T.3-10-T.3-11; Exhibit 1, file note of meeting with Scott Bray on 20 April 2018, pp.120-121. -- 26 of 68 -- 27 work. [116] Following a two-week break over Christmas 2018, the Appellant returned to work in January 2019 and her health continued to decline. On 2 April 2019 an ambulance was called due to the Appellant experiencing tightness in her chest and anxiety and she was transported to the Mater Hospital for observation and treatment. [117] The Appellant contends this clearly shows that her work was the major cause of health issues because she was affected by management not taking proper action to ensure that her health, safety and wellbeing was of the utmost priority. [118] This matter is somewhat unusual in that following the meeting on 27 April 2018, the evidence confirms that a series of regular one-on-one meetings occurred between Ms Locke and the Appellant. The Appellant confirms that these meetings were amicable and raises no complaints about the meetings. The Appellant also confirmed that her relationship and communication with Ms Locke improved after the 27 April 2018 meeting. Ms Dones complains of no further actions by either Ms Locke or other managers prior to her decompensating and leaving work in April 2019 (almost a year later). Respondent's Statement of Facts and Contentions [119] In the Respondent's Statement of Facts and Contentions (RSOFC), the Respondent addresses each of the stressors identified in the ASOFC. [120] The Respondent goes on to contend that Ms Locke provided extensive support to Ms Dones and allowed accommodations to her for a variety of reasons requiring time away from the office. [121] The Respondent further notes that Ms Locke met with Ms Dones each month (as she did with other team members) to "check in" and provide support.81 When Ms Dones reported to Ms Locke in December 2018 that her depression had become severe, Ms Locke reported this to Mr McAuliffe and they both performed a "welfare check" as did Mr Bray.82 [122] The Respondent contends that at all times, the management action in relation to the Appellant was reasonable.83 [123] The Respondent goes on to contend that the Appellant experienced considerable non-work- 81 Respondent's SOFC (n 4), [51]. 82 Ibid [52]. 83 Ibid [53]. -- 27 of 68 -- 28 related stressors that were present upon her return to work for TAFE in April 2017 and which persisted throughout her second period of employment.84 The Respondent identifies the following personal or private stressors: • Her small business making cakes had been largely unsuccessful; • Financial difficulties due to this business; • The financial difficulties resulted in the Appellant being on the brink of losing her home; and • Going through a separation with her husband of 27 years.85 Personal Stressors Small business failing [124] The Appellant noted in her evidence that she had worked for TAFE for more than 25 years, however, she took a redundancy in 2014 to build her small business.86 The Appellant confirmed that the small business was a hospitality business making wedding cakes and other cakes.87 [125] The Appellant provided further evidence surrounding the circumstances which gave rise to her returning to work for TAFE in 2017, and this appeared to be primarily related to issues relating to her husband losing his employment causing a need for her to return to work.88 [126] Ms Dones in response to a question from the Commission noted that at the time she returned to work her small business was doing well. She was delivering to five-star hotels and providing cakes to the Queensland Teachers' Union and other corporate clients. She reported that her business was growing and getting known.89 [127] Following her return to work in 2017, the Appellant gave evidence of making a wedding cake for Ms Locke's son's wedding and tendered as an exhibit, a photograph of the business card for her business.90 The Appellant doing this for Ms Locke appears to be inconsistent 84 Ibid [54]. 85 Ibid, [55]. 86 T.1-6, ll.25-32. 87 T.1-6, ll.35-38. 88 T.1-7, ll.18-25. 89 T.1-7, ll.29-36. 90 T.1-37, ll.17-38; Exhibit 2. -- 28 of 68 -- 29 with the Appellant's allegation that she was being bullied and harassed by Ms Locke. [128] It was not put to the Appellant in cross-examination that her small business had failed. To the contrary, it was suggested to the Appellant that she was trying to run that business at the same time as working at TAFE which would be an impost on her time and effort. The Appellant confirmed that she had lessened the number of orders that she was accepting to put work at TAFE first.91 [129] In light of the evidence summarised above, I am not satisfied that it has been established that the Appellant's small business failed and that this was a personal stressor that was impacting upon her in the period from 2017 to 2018. Husband's job loss [130] A further personal stressor was identified in the course of the Appellant's evidence. [131] The Appellant confirmed that sometime in 2016 her husband had lost his job, and this period of unemployment appears to have extended into 2017.92 The Appellant confirmed in cross- examination that her husband's job loss contributed to the financial stress still being experienced in 2018.93 [132] The Appellant's evidence regarding the extent of time that her husband Danny was unemployed for was somewhat vague, and I have some concerns that the Appellant was being less than forthright as to how significant this period of unemployment actually was. [133] On the evidence available to me, I am satisfied that this stressor has been established. Financial difficulties [134] At a consultation with Dr Tran on 20 June 2018 the Appellant reported that she was experiencing financial hardship and required a letter with respect to her recent health issues to assist in her application for special consideration with the banks. The consultation note further recorded that the Appellant still has her low moments with respect to anxiety since the work stress incident two months ago.94 [135] The employee file notes relating to Ms Dones further record a meeting between Ms Locke and the Appellant on 30 August 2018 (Ms Dones requested the meeting) during which the 91 T.1-40, ll.6-35. 92 T.1-7, ll.20-23. 93 T.1-69, ll.1-9; ll.36-49. 94 Exhibit 1, p. 72 - Consultation Notes from Our Medical Home Loganholme. -- 29 of 68 -- 30 Appellant revealed that she and her husband were struggling financially and were on the verge of losing their home. The Appellant further explained that she had an appointment with a financial counsellor on 4 September 2018 in the morning and would be late to work.95 [136] The note goes on to record that at the meeting Ms Dones stated to Ms Locke that there are times when she 'doesn't want to be here anymore'.96 An excerpt from Ms Locke's note goes on to provide: … I thought she meant at work but she clarified she meant here here; I asked her not to do anything silly and to call me anytime of the day or night before she made any decisions. She cried and I gave her a hug.97 [137] I am satisfied that the existence of this personal stressor has been established. Marital Issues [138] There is some evidence corroborating this personal stressor. [139] Dr Curtis Gray, Consultant Psychiatrist prepared a medical report for WorkCover Queensland dated 26 March 2020.98 In that report Dr Gray recorded the following history from the Appellant regarding the relationship issues: • The Appellant reported that her marriage was fine until the latter half of 2019.99 • Her husband became increasingly jealous about the time Ms Dones was spending kayaking with his friend. They became increasingly conflicted in their interactions and eventually separated for a few months in the second half of 2019.100 [140] The Appellant's medical records from Our Medical Loganholme101 contain the following relevant entries: • On 16 July 2019 the Appellant consulted with Dr Tran and reported that she was now also going through separation with her husband and this was adding extra stress to her 95 Ibid, Files notes, p.124-125, meeting between Ms Dones and Ms Locke on 30 August 2018. 96 Ibid, p. 125. 97 Ibid. 98 Exhibit 1, Medical report of Dr Curtis Gray, Consultant Psychiatrist dated 26 March 2020, pp. 16-29. 99 Ibid, p. 21. 100 Ibid. 101 Exhibit 1, pp.69-115. -- 30 of 68 -- 31 situation.102 • On 19 September 2019, the Appellant consulted Dr Tran and reported that she was going through marriage counselling with the Church.103 • On 20 November 2019, the Appellant consulted Dr Tran and reported that she had separated from her husband and that he had left the previous week.104 [141] In the Appellant's evidence she indicated that the marital issues commenced after April 2019 and after she had left the workplace.105 [142] The above evidence substantiates the existence of this personal stressor; however, it will be necessary to consider whether the martial issues have made any material contribution to the Appellant's decompensation given the evidence of the timing when those issues occurred. Medical Evidence Psychiatrist Dr Curtis Gray [143] Dr Curtis Gray, Consultant Psychiatrist provided a report dated 26 March 2020106 to WorkCover. Dr Gray was not called to give evidence by either party in the appeal, and his medical report was tendered by consent in the agreed bundle of documents. [144] In his report dated 26 March 2020, Dr Gray opines that the Appellant developed a clinically significant reactive, psychological and emotional symptomatology in response to her perceived stressors which were indicative of an Adjustment Disorder with mixed anxiety and depressed mood.107 [145] Dr Gray went on to note that over time the Appellant's depressive symptoms had worsened and could be evolving into a Major Depressive Episode, although he did not feel able to make that diagnosis at that time.108 102 Ibid, p. 81. 103 Ibid, p. 82. 104 Ibid, p.84. 105 T.1-75, ll.32-36. 106 Exhibit 1, (n 98). 107 Ibid, p. 26. 108 Ibid. -- 31 of 68 -- 32 [146] The report also confirms that the cause of Ms Dones' condition is multifactorial. Dr Gray opines that the Adjustment Disorder was precipitated by the Appellant's perception of being bullied and harassed in the workplace, including an incident where her immediate supervisor waved a knife in her direction, which was interpreted by Ms Dones as an aggressive act. The report notes that the Appellant appeared to have developed a mindset whereby she sees herself as a victim of the alleged bullying and harassment, and in this context felt that her complaints about those matters had not been adequately addressed, and she had not been appropriately supported.109 [147] Dr Gray also notes that the Appellant reported being 'ununderstood and unsupported' by her own children and her husband. He goes on to opine that a number of events have perpetuated the Appellant's symptomatology including her failing to secure an extension of a contract for work with TAFE, her not being appointed to two positions that she applied for, and eventually the breakdown in her marriage (which Dr Gray noted to be primarily related to conflict that had arisen in the context of her husband becoming jealous about her taking some kayaking lessons with one of his friends).110 [148] Dr Gray also indicates that the Appellant's employment appeared to be the major significant contributing factor to the development of her Adjustment Disorder.111 I note however in concluding the report that Dr Gray opines that the breakdown in Ms Dones' marriage was also very significant in the development of her Adjustment Disorder symptomatology.112 Dr Masha Davari [149] Dr Masha Davari, Consultant Psychiatrist was one of the Appellant's treating psychiatrists.113 Dr Davari provided an initial medical report to QSuper dated 30 August 2022114 and a further medical report dated 18 April 2023115 also to QSuper. Dr Davari also provided some short evidence to the Commission and was cross-examined by the Respondent. [150] In the initial report dated 30 August 2022, Dr Davari reports that the Appellant provided a history that she had been subjected to unfair treatment, discrimination, and bullying behaviours at her workplace, which she mainly attributed to a difficult relationship between her and her immediate supervisor. The report records that the Appellant has provided Dr Davari with a detailed history of her work-related stressors (which Dr Davari did not further 109 Ibid p. 26. 110 Ibid. 111 Ibid p. 27. 112 Ibid p. 29. 113 T.2-45, ll.23-26. 114 Exhibit 3. 115 Exhibit 1, pp. 51-54 - Medical report of Dr Davari dated 18 April 2023. -- 32 of 68 -- 33 describe).116 [151] The Appellant reported that she was humiliated, her voice was not heard, and she was not supported during the whole process. The report notes that the Appellant elaborated on her supervisor's condescending tone of voice/gestures, lack of one-to-one support, her controlling behaviours, and punitive attitude which made her feel uncomfortable and distressed.117 [152] Dr Davari reported that additional personal stressors since 2019 included separation from her partner, financial and parenting problems.118 Dr Davari records her impression as to the Appellant's condition as being: • Adjustment disorder with low mood and anxiety: Symptoms have clearly not progressed as expected • Sever (sic) functional decline • Maladaptive coping mechanism119 (Emphasis part of report). [153] Dr Davari's second report dated 18 April 2023120 addresses issues relating to the Appellant's functional capacities and ability to return to employment. As a consequence, this report does not assist the Commission in determining the issues in dispute. [154] The oral evidence of Dr Davari was also of limited assistance. Dr Davari confirmed the diagnosis of the Appellant's condition set out in Exhibit 3.121 In response to a question from the Appellant, Dr Davari also confirmed that the Appellant had not reported any previous psychiatric problem and that her symptoms were related to her experience at the workplace.122 [155] In cross-examination, Dr Davari confirmed that as the treating psychiatrist, she acted upon the information provided by the Appellant.123 Dr Davari went on to clarify that in forming her opinion, she also relied upon collateral information from the treating General Practitioner, a previous Psychiatrist, and the Appellant's treating Psychologist and her 116 Exhibit 3, p. 1. 117 Exhibit 3, pp. 1-2. 118 Ibid p. 2. 119 Ibid p. 3. 120 Exhibit 1, pp. 51-54. 121 T.2-44, ll.19-25. 122 T.2-44, ll.27-32. 123 T.2-45, ll.35-40. -- 33 of 68 -- 34 family.124 [156] Dr Davari confirmed that she was not at her workplace (at the time of giving evidence) and did not have the Appellant's file available to her. Dr Davari appeared somewhat surprised that she was being required to give evidence in a hearing.125 [157] I consider Dr Davari's oral evidence to be generally unsatisfactory and of limited assistance to the Commission. Psychologist [158] The Appellant's treating Psychologist, Mr Laurie Francis has provided a large number of letters and reports relating to the Appellant. All of these have been included in Exhibit 1 and have been considered in determining this appeal. [159] In correspondence dated 30 September 2019,126 Mr Francis confirms a diagnosis of Posttraumatic Stress Disorder ('PTSD'), with delayed expression (when the full diagnostic criteria are not met until at least 6 months after the event). [160] In a medical report to QSuper dated 27 October 2020,127 Mr Francis notes that the Appellant first presented at Compassion Services on 11 April 2019 and attended ten sessions of psychological counselling under a mental health care plan up to and including 4 July 2019. The Appellant then returned on 27 February 2020 for a further ten sessions.128 [161] In relation to the diagnosis of the Appellant's condition, Mr Francis noted that there had been conflicting diagnoses of an adjustment disorder as opposed to posttraumatic stress disorder. He stated that the label was mostly redundant because the symptoms for both disorders were intrusive, intense and not amenable to brief treatment therapies.129 [162] In a report to the treating General Practitioner, Dr Tran dated 28 December 2020,130 Mr Francis reported that the Appellant had initially presented with an outcome measure K10 45/50 indicating severe levels of stress, anxiety and depression which appeared to relate to multiple bio-psycho-social stressors around interpersonal relationships at work and ripple effects. 124 T.2-45, ll.43-46. 125 T.2-46, ll.1-5. 126 Exhibit 1, correspondence from Mr Laurie Fisher, Psychologist dated 30 September 2019, p. 11. 127 Exhibit 1, p. 33-34. 128 Ibid p. 33. 129 Ibid p.34. 130 Ibid p.37. -- 34 of 68 -- 35 [163] In his oral evidence, Mr Francis confirmed his diagnosis that the Appellant's symptoms on initial presentation to his clinic in 2019 and in the sessions immediately following that were extreme and consistent with a chronic condition. Mr Francis noted that he started to formulate the idea that the Appellant's presentation went beyond stress and depression and was more in line with PTSD.131 [164] Mr Francis further confirmed that in his view there had been a late onset of the condition of PTSD.132 [165] In cross-examination Mr Francis confirmed that the Criterion A stressor to satisfy the DSM- V diagnostic criterion for PTSD, which involves an event where the individual was exposed to actual or threatened death, serious injury, or sexual violence, was the incident where Ms Dones was threatened with a knife by Ms Locke.133 General Practitioner [166] The Appellant's medical records from Our Medical Loganholme were tendered as part of the agreed bundle.134 Neither party chose to call evidence from any of the doctors from that practice that treated Ms Dones. [167] In correspondence to WorkCover dated 16 May 2019, Dr Tam Thanh Thi Tran recorded his diagnosis as mixed anxiety and depression disorder with possible PTSD.135 In that correspondence Dr Tran confirmed that in his opinion the Appellant's employment was the major significant contributing factor to her current condition. Date of injury [168] Dr Gray, Psychiatrist in his initial medical report dated 26 March 2020136 records that it was not entirely clear to him when Ms Dones was diagnosed by a doctor with Adjustment Disorder, however, he noted that Dr Tran had diagnosed mixed anxiety/depression on 4 April 2019. Dr Curtis opined that this would be a reasonable date to identify as the commencement of the Adjustment Disorder.137 [169] WorkCover sent a request to Dr Gray requesting a supplementary report which noted that Dr Tran had advised that on 23 April 2018, Ms Dones was given time off due to a situation 131 T.2-30, ll.22-42. 132 T.2-33, ll.40-47; T.2-34, ll.1-9. 133 T.2-34, ll.31-41. 134 Exhibit 1, pp.69-115. 135 Exhibit 1, p. 5 - letter from Our Medical Home dated 16 May 2019. 136 Exhibit 1, (n 98). 137 Ibid, p. 29. -- 35 of 68 -- 36 at work and the diagnosis was anxiety secondary to work related stress.138 [170] In response to that request Dr Gray provided a supplementary report dated 6 May 2020.139 In that report Dr Gray noted that having reviewed the additional information provided by WorkCover, it would be reasonable to interpret the date of commencement of the work- related injury as being 23 April 2018.140 [171] A different conclusion as to the timing of the onset of the psychological injury has been recorded by Mr Francis. In a report dated 11 October 2021141 Mr Francis observes that the Appellant had reported that her second visit to her General Practitioner in December 2018 was prompted because Ms Dones was finding it increasingly hard to function physically and emotionally.142 [172] The report records that the Appellant reported that by December 2018 the "pressures at work" had escalated and her symptoms became more apparent, frequent, intense and intrusive. Mr Francis notes that in the December 2018 consultation, Ms Dones conceived her condition was getting unmanageable and causing her concern and the symptoms she reported indicated more than moderate anxiety and depression. Mr Francis confirmed that in his clinical opinion, considering the history, symptoms, timing and intensity (of the symptoms), the onset of the Appellant's condition only became apparent in December 2018 and not in April 2018.143 [173] Dr Tran's consultation note of 23 April 2018 records the following history: History: C/o stress++ at work. She works at TAFE. Blood pressure likely high today due to stress. Recounts situation at her current workplace where she feels her immediate supervisor has been treating her unprofessionally with intimidation, bullying and belittling her. She feels it is unfair and is disputing the way she has been handled. She has been advice (sic) to document her grievances and presented to management higher up this Friday. Quite stress (sic) with the whole situation. Supportive listening. … 138 Exhibit 1, p. 30 – Email from Marni Griffith, Claims Representative to Dr Gray dated 23 April 2020. 139 Exhibit 1, p. 31-32 – Supplementary medical report of Dr Curtis Gray, Consultant Psychiatrist dated 6 May 2020. 140 Ibid, p. 31. 141 Exhibit 1, pp. 39-43, medical report of Laurie Francis, Psychologist dated 11 October 2021. 142 Ibid, p. 40. 143 Ibid. -- 36 of 68 -- 37 Advice time off work next two days to settle her nerves and for close monitoring of her blood pressure.144 [174] At that consultation the Appellant was provided with a generic medical certificate certifying her as unfit to continue her usual occupation on 23 and 24 April 2018.145 [175] Neither the consultation note nor the medical certificate record Dr Tran making a diagnosis of a work-related injury. This is inconsistent with the information that WorkCover provided to Dr Gray. [176] There is no evidence that supports a finding that Dr Tran diagnosed the Appellant as having suffered an Adjustment Disorder on 23 April 2018, other than the hearsay information contained in the email from WorkCover referred to in paragraph [169] above. [177] There is also no diagnosis of the Appellant suffering from a psychological or psychiatric condition (other than references to anxiety) until the consultation with Dr Tran on 12 December 2018 where the Appellant disclosed intermittent feeling of depression, teariness and low mood. That consultation note records the reason for the visit being "Anxiety/Depression".146 [178] At that consultation Dr Tran also provided a support letter dated 12 December 2018 in which he noted that the Appellant was currently suffering from anxiety and depression triggered by her work-related incident earlier in the year. The letter noted that the Appellant would benefit from support to allow her time and space to engage in psychological therapy and mental health recovery.147 [179] In light of the contemporaneous medical evidence, I prefer the opinion of Mr Francis that the onset of the psychological condition occurred in December 2018 and that the Appellant was assessed by a doctor for the purposes of s 141(1) of the WCR Act on 12 December 2018.148 This means that it can only be events occurring prior to 12 December 2018 which could have contributed to the development of the Appellant's psychological injury.149 Any event which occurs after 12 December 2018 could not have caused or contributed to the Appellant's psychological injury. 144 Exhibit 1 (n 135), p. 69-70. 145 Ibid, p. 92. 146 Ibid, pp.73-74. 147 Ibid, p. 97. 148 See Tuesley v Workers' Compensation Regulator [2021] QIRC 071 (Hartigan IC). 149 Ibid, [26] (Hartigan IC); see also Kiesouw v Workers’ Compensation Regulator [2017] QIRC 064; and Nichols v Workers’ Compensation Regulator [2017] QIRC 11. -- 37 of 68 -- 38 Consideration [180] The decision before the Commission is whether the Appellant has suffered an injury in accordance with s 32 of the Act. [181] In preparing these reasons I have fully considered the parties' submissions and the evidence, even if the same are not specifically referenced in this decision. Personal Injury [182] The Appellant's condition has been diagnosed as an Adjustment Disorder with mixed anxiety and depressed mood by Dr Curtis Gray, Consultant Psychiatrist150 and an Adjustment Disorder with low mood and anxiety by Dr Mahsa Davari, Consultant Psychiatrist.151 [183] Mr Francis, the Appellant's treating Psychologist (at the time), has provided a diagnosis of PTSD. [184] I accept and prefer the diagnosis that has been provided by the two Psychiatric expert witnesses for reasons which follow. I therefore find that the Appellant has sustained an Adjustment Disorder with mixed anxiety and depressed mood. [185] Firstly, I place greater weight on the evidence of the two Consultant Psychiatrists as a result of their specialist expertise. I further place greater reliance on the conclusions of Dr Gray given he has prepared an independent medico-legal report and he has not been involved in the treatment of the Appellant. Both Dr Davari and Mr Francis have been involved as treating clinicians for Ms Dones. [186] Secondly, Dr Gray in his initial report confirmed that he could not confirm a diagnosis of PTSD because in his clinical opinion, the Appellant had not experienced a Criterion A stressor (for the purposes of a DSM-V diagnosis of a PTSD).152 Dr Gray was provided with a history of the knife incident by the Appellant and he opined that this did not constitute a relevant Criterion A stressor necessary for the diagnosis of a PTSD. [187] Thirdly, Mr Francis has relied upon the alleged knife incident involving Ms Locke as constituting the Criterion A stressor. For the reasons set out above, I am not satisfied that the occurrence of this event has been substantiated by the Appellant. This means that there is no foundational basis for the diagnosis of a PTSD by Mr Francis. 150 Exhibit 1, (n 98). 151 Exhibit 3 – medical report dated 30 August 2022. 152 Exhibit 1 (n 98), p. 26. -- 38 of 68 -- 39 [188] Fourthly, even if I had been satisfied that the Appellant had substantiated the knife incident, I do not consider that this incident as described by the Appellant in her evidence would constitute a Criterion A stressor. On the Appellant's description of the incident, I am not satisfied that she was exposed to actual or threatened death, serious injury, or sexual violence in that incident. Arising out of, or in the course of, the Appellant's employment [189] There are authorities confirming the following propositions, that: (a) the phrase "arising out of" is wider than "caused by" and, although it involves some causal or consequential relationship between the employment and the injury, "arising out of" does not require that direct or proximate relationship that would be necessary if the phrase used were "caused by;"153 (b) an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury.154 [190] I have found a number of the workplace stressors that the Appellant alleges to be causative of her psychological injury have been substantiated by her. [191] Dr Gray in his medical report dated 26 March 2020 has confirmed that the Appellant developed clinically significant reactive, psychological and emotional symptomatology in response to the perceived stressors of bullying and harassment in the workplace.155 [192] I am therefore satisfied that the Appellant's psychological injury has arisen out of, or in the course of, the Appellant's employment with TAFE. Whether the employment is the major significant contributing factor to the injury? [193] As noted in paragraph [7] of these reasons, because of the timing of the injury, the Appellant is required to satisfy the more stringent test that her employment was the major significant contributing factor to the injury. [194] In Gillan v Workers' Compensation Regulator156, His Honour Deputy President Merrell noted in relation to the requirement that the employment be the major significant 153 Avis v WorkCover Queensland (2000) 165 QGIG 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6. 154 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324. 155 Exhibit 1 (n 98). 156 [2021] QIRC 315. -- 39 of 68 -- 40 contributing factor as follows: [79] That requirement removes the possibility that an application for compensation, for such an injury, could be accepted where the employment was simply one of a number of significant contributing factors to the injury. While a number of factors could contribute to a worker's psychiatric or psychological disorder, the worker's application for compensation will only be accepted if their employment was the major significant contributing factor to their disorder.157 (Citations omitted). [195] In Ebsworth v Workers' Compensation Regulator158 Industrial Commissioner Black observed, in the context of an appeal dealing with a claim for a secondary psychiatric injury: [59] All factors are relevant to the determination to be made about what was the major significant contributing factor to the development of the appellant's psychological disorder. Was it employment related factors or was it non-employment related factors? There can only be one major significant contributing factor. … … [61] The reporting by the appellant on 26 October 2015 of multiple symptoms of depression including low mood, insomnia, low appetite, anhedonia, social isolation, agoraphobia, and a suicidal ideation, was not foreshadowed by the medical evidence. A descent into depression however need not take a rational or incremental path, and it is not the unexpected nature of the decompensation that is the issue, but rather the issue of causation. The resolution of this issue includes the identification of those stressors which were most likely to have been relevant and influential at the time of decompensation. (Emphasis added) [196] The question of whether the Appellant's employment was a major significant contributing factor, or as required in this case, the major significant contributing factor to the injury is a mixed question of fact and law. [197] As was observed in Taylor v Workers' Compensation Regulator,159 the Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.160 [198] As has been earlier noted in these reasons, there appears to have been both personal and work-related stressors present during the period when the Appellant's psychological injury has developed. It is therefore necessary to analyse the evidence relating to each of the work and non-work related stressors, and the medical evidence to draw a conclusion as to what is the major significant contributing factor to the Appellant's psychological injury. 157 Ibid, [79] (Merrell DP) citing Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [24]-[25] (Industrial Commissioner Neate). 158 [2017] QIRC 028. 159 [2017] QIRC 6. 160 Ibid, [43]. -- 40 of 68 -- 41 [199] In relation to the work-related stressors, I have not accepted that the knife incident has been sufficiently substantiated by the Appellant. This appeared to be the most significant work- related stressor relied upon by the Appellant. [200] The Respondent in its submissions describes the other events identified by the Appellant in Stressors 1 and 2, relating to the manner in which Ms Dones spoke to the Appellant on a handful of occasions, as not being of "great moment".161 This appears to be an apt description. [201] For the reasons set out in this decision in paragraphs [29] to [46], I am not satisfied that the Appellant has established a course of conduct by Ms Locke where Ms Locke has bullied or intimidated the Appellant. The examples that Ms Dones has provided of the alleged conduct are isolated incidents occurring over a spread of approximately eight months. [202] In relation to the contract extension issue, I have considered this issue in some detail later in these reasons. I am satisfied that this issue would have been stressful for the Appellant (particularly in light of the financial difficulties the family were experiencing), however, it was an issue of relatively short duration prior to the error being corrected and the Appellant being offered a 12-month contract extension. I am satisfied that this issue was resolved within a period of one to two weeks of the initial 6-month contract extension offer being made. I am further satisfied that the issue had been resolved prior to the second meeting held on 27 April 2018. [203] This then leaves the two meetings held with the Appellant on 16 April 2018 and 27 April 2018. [204] I accept that there would have been stress for the Appellant in having concerns regarding her work attendance and performance raised with her on 16 April 2018. [205] The second meeting on 27 April 2018 was effectively called as a result of the Appellant attending Mr Bray's office on 20 April 2018 and raising her dissatisfaction and confusion about the matters discussed on 16 April 2018. Mr Bray, as a consequence, arranged the second meeting to address those concerns. The evidence available to me suggests that the Appellant's concerns were largely addressed to her satisfaction in that meeting, and thereafter there was an improvement in her relationship with Ms Locke (from the Appellant's perspective). [206] Following the 27 April 2018 meeting, the Appellant confirmed in her evidence that her 161 Respondent's submissions, (n 63), [26]. -- 41 of 68 -- 42 interactions with Ms Locke were amicable and she raised no concerns about Ms Locke's communication with her.162 [207] As a result of the 16 April 2018 meeting, monthly one-on-one meetings between Ms Locke and Ms Dones were put in place. The Appellant makes no complaint about any of those meetings and agreed in her evidence that all of these meetings with Ms Locke were conducted amicably.163 I have also had regard to the nine summaries of the monthly meetings prepared by Ms Locke which in my view confirm that:164 • open lines of communication existed between the Appellant and Ms Locke; and • Ms Locke was supporting the Appellant, including during her financial difficulties. [208] The Appellant makes no further complaint either about Ms Locke, Mr McAuliffe or Mr Bray following the 27 April 2018 meeting. As earlier noted, the Appellant did not leave work and lodge her application for compensation until April 2019. I need to be satisfied that the Appellant's decompensation in December 2018 is related to the workplace stressors that allegedly occurred from June 2017 to the end of April 2018. [209] Some support for the Appellant's work being a significant contributing factor165 to her psychological injury arises from the consultation notes of her General Practitioner. These reveal as follows: • The Appellant consults Dr Tran on 23 April 2018 complaining of stress at work. The Appellant provided a history that she felt her immediate supervisor had been treating her unprofessionally with intimidation, bullying and belittling her. The Appellant was noted to be quite stressed with the whole situation.166 • A further consultation with Dr Tran takes place on 2 May 2018 where Ms Dones reports that she was still fighting the battle at work with her supervisor and still stressful. The note further records: 162 T.1-25, ll.3-7. 163 T.1-28, ll.25-28. 164 Exhibit 1, p. 143 – Email from Ms Locke dated 10 May 2018; pp. 144-145 – Email from Ms Locke dated 11 June 2018; p. 146 – Email from Ms Locke dated 10 July 2018; pp. 147-148 – Email from Ms Locke dated 16 August 2018; pp. 149-150 – Email from Ms Locke dated 10 September 2018; pp.154-155 – Email from Ms Locke dated 2 October 2018; p. 156 -Email from Ms Locke dated 13 November 2018; pp.159-160 – Email from Ms Locke dated 15 January 2019; pp.161-162 – Email from Ms Locke dated 11 April 2019. 165 Noting that this was not the test at the relevant time, the employment had to be the major significant contributing factor. 166 Exhibit 1, (n 134) pp. 69-70. -- 42 of 68 -- 43 Rocking the boat and standing up for herself but finding it hard. Says management is sticking to their own agenda and not really seeing it from her point of view and not supporting her.167 • At a consultation with Dr Tran on 5 May 2018 the Appellant reports that she was still stressed but felt that she was managing.168 • On Friday, 18 May 2018 the Appellant reported to Dr Tran that the work stress had been resolved but she still felt that injustice had been done to her.169 [210] This seems to be consistent with the work issues having been largely dealt with following the meeting held on 27 April 2018. I do note however, that in a couple of the later consultations, including the consultation on 12 December 2018, the Appellant links the condition to those earlier work events. [211] In relation to the personal stressors, the first of those was Ms Dones' husband losing his job sometime in 2016. I note that this pre-dated the Appellant's return to work with TAFE which occurred in May 2017. The Appellant's evidence regarding how long her husband was not employed for is unfortunately not clear, however, it appears that it was a reasonably lengthy period. [212] It is also not clear, but appears probable, that the necessity for the Appellant to return to work at TAFE in 2017 arose from her husband's period of unemployment and the financial stress that was building. [213] This then gives rise to the other significant personal stressor, the financial difficulties that the Appellant and her husband were experiencing. The Appellant consults Dr Tran on 20 June 2018 and reported: Experiencing financial hardship at present. Needs letter wrt [sic] her recent health issues to help in her application for special consideration with the banks. Still has her low moment [sic] wrt [sic] her anxiety since the work stress incident 2 months ago. Advice to consider engaging in psychological therapy. She has access at work to see a psychologist so will use this first If she needs additional session she can come back to see me for mental health care plan and referral to private psychologist.170 [214] As noted in paragraph [41] above, on 28 August 2018, the Appellant emails Mr Bray in 167 Ibid, p. 70. 168 Ibid, pp. 70-71. 169 Ibid, p. 71. 170 Ibid, pp. 72-73. -- 43 of 68 -- 44 response to his email checking on her progress in completing her timesheets (which were significantly behind). In that email Ms Dones notes that she had a few emergencies and had some issues at home.171 [215] On 30 August 2018 the Appellant requested a meeting with Ms Locke where she revealed the serious financial issues she and her husband were facing and the risk that they may lose their home and sought permission to start late on 4 September 2018 to enable them to attend an appointment with a financial counsellor.172 As earlier noted, in this meeting the Appellant appears to reveal some suicidal ideation. [216] On 31 August 2018, Mr Bray emails People and Culture raising what had been revealed by the Appellant in the meeting with Ms Locke the previous day. On the same day, Ms Locke emails the Appellant regarding accessing Benestar, TAFE's employee assistance program.173 [217] On 4 September 2018 the Appellant commenced at 1:00 pm (presumably following the appointment with the financial counsellor). Ms Locke held a one-on-one on meeting with her that day which commenced with a welfare check regarding her personal issues.174 [218] A further one-on-one meeting occurred between Ms Locke and the Appellant on 2 October 2018 which commenced with a welfare check.175 [219] The Appellant had a further appointment with her financial advisor on 11 October 2018.176 [220] As noted in paragraph [41] above, on 10 December 2018 the Appellant requested a meeting with Ms Locke during which she revealed that she was suffering from depression. I note that the Appellant attributed that depression to the events earlier in year, however, by this time there had been no work-related issues between Ms Locke and the Appellant for over seven months. [221] There is also evidence before the Commission of there being ongoing financial difficulties extending into 2019.177 [222] The Appellant in her evidence attempted to down-play the significance of the financial issues 171 Exhibit 1, p. 124 – File note dated 28 August 2018. 172 See paragraphs [135]-[136]; Exhibit 1, pp.124-125 – File note dated 30 August 2018. 173 Exhibit 1, p. 125 - File note dated 31 August 2018. 174 Ibid, File noted dated 4 September 2018; Exhibit 1, pp.149-150, Email from Ms Locke dated 7 September 2018 which records that there was a discussion regarding the Appellant's personal circumstances. 175 Exhibit 1, p.126 – File note dated 2 October 2018. 176 Ibid, p. 127 – Files noted dated 10 October 2018 and 11 October 2018. 177 Exhibit 1, (n 134), pp. 80-81, consultation with Dr Tran on 28 June 2019; p. 83, consultation with Dr Tran on 30 September 2019; p. 84, consultation with Dr Tran on 20 November 2019. -- 44 of 68 -- 45 and the impact that they had on her and rejected a suggestion that this was very stressful for her.178 [223] The Respondent's submissions characterise the Appellant's evidence regarding the financial issues as being inherently implausible.179 In light of the evidence summarised above, and the length of time over which the Appellant and her husband were experiencing the financial difficulties, I consider this to be a fair characterisation of her evidence. [224] I do not consider that the Appellant was being completely honest in her evidence when describing the extent of the financial difficulties or their impact upon her. [225] I consider significant financial difficulties such that the Appellant and her husband were at risk of losing their home must have been a highly stressful issue which has carried on for an extended period of time. During the months after 27 April 2018 it was the major stressor that was operating in my view. [226] This then leaves the issue of the Appellant's marital issues and eventual separation. Once again, the Appellant attempted in her evidence to portray that all of the issues giving rise to her separation from her husband all occurred post her leaving work in April 2019. [227] Once again, I have significant concerns that the Appellant has been less than candid and frank in her evidence about the marital issues. I consider it unlikely in circumstances where the Appellant's husband was out of work for a significant period of time, which caused them to go on to experience significant financial difficulties such that they were at risk of losing their home, that there would not have been strain placed on their relationship throughout 2017 and 2018. [228] The email to Mr Bray from the Appellant on 28 August 2018 (referred to in paragraphs [41] and [214] above) where she states that she has experienced some emergencies and issues at home is consistent with the financial difficulties causing the problems at home. [229] As noted in paragraph [197] above, the Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence. It is therefore necessary to consider the relevant medical evidence. [230] In the present case, Dr Davari in her two medical reports to QSuper is primarily focussed on issues relevant to the Appellant's ability to return to work. Dr Davari has not expressed an 178 T.1-69, ll. 1-30. 179 Respondent's submissions, (n 63), [27]. -- 45 of 68 -- 46 opinion as to whether the Appellant's employment was the major significant contributing factor to her injury. As a consequence, the evidence of Dr Davari is of limited assistance in determining this issue and I have given her two reports and her oral evidence minimal weight. [231] Dr Tran in his correspondence to WorkCover dated 16 May 2019180 in response to the second question from WorkCover simply states that the employment is the major significant contributing factor to her condition. This opinion is not supported by any reasoning. Further, Dr Tran in response to question 4, states that there were no non-work-related stressors. This is despite him being aware of the significant financial issues that the Appellant was experiencing and also the subsequent marital issues. [232] I therefore consider the report from Dr Tran to be unreliable to the extent that he expresses an opinion on the issue of causation of the Appellant's injury. I also give the correspondence from Dr Tran dated 16 May 2019 minimal weight. [233] In a case where expert medical evidence is led, before any such expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence.181 This has not occurred in relation to the correspondence from Dr Tran. [234] Further, before expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence. If an expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant facts, their opinion is likely to be of little or no value.182 [235] In the present case, the only witness that has provided an opinion as to whether the Appellant's employment was the major significant contributing factor to the Appellant's injury (which is supported by relevant reasoning) is Dr Gray, Consultant Psychiatrist. He is also the only independent medical witness who has not been involved in treating the Appellant. [236] As noted earlier in these reasons, Dr Gray in his medical report dated 26 March 2020183 expresses the view that the causes of the Appellant's psychological injury are multi-factorial and involve both work-related and non-work related matters.184 He confirms however, that in his opinion, the employment was the major significant contributing factor to the injury. 180 Exhibit 1, pp.4-5. 181 Coombes v Q-COMP (2007) 185 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (President Martin J) 182 See R v Turner [1975] QB 843, 840 (Lawton LJ), Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J). 183 Exhibit 1, (n 98). 184 Ibid, p. 26. -- 46 of 68 -- 47 [237] There are difficulties with this opinion being accepted. Firstly, the Appellant has failed to provide Dr Gray with a complete and accurate history. Dr Gray was apparently not informed by the Appellant about her husband's loss of employment or the significant financial difficulties they were experiencing during the relevant period. [238] Further Dr Gray appears to have based his opinion on an acceptance of a history from the Appellant that she failed to secure an extension of a contract for work with TAFE, and that she was not appointed to two positions that she applied for. [239] In relation to the first issue, the history that the Appellant has provided to Dr Gray appears to be simply inaccurate. The Appellant was successful in obtaining an initial six-month extension to her contract, which within a short period of time was confirmed to be a 12 month extension (like the other ISOs). [240] In relation to the second issue, the Appellant did not indicate in her evidence that the failure to obtain those positions was an operative stressor causing her injury. [241] It therefore appears that in forming any clinical opinion about the causation of the Appellant's injury, Dr Gray has been provided with an inaccurate and incomplete history, and to some extent a misleading history. In light of this, I am of the view (consistent with the authorities cited above) that his opinion that the employment was the major significant contributing factor is of little or no value.185 [242] This leaves the evidence of Mr Francis, Psychologist, which is problematic for a number of reasons. Firstly, Mr Francis was the Appellant's treating Psychologist, he was not an independent medical expert. There is always a concern for the potential of an inherent bias in favour of the patient when a treating practitioner gives evidence on behalf of the patient. [243] The second issue relates to Mr Francis' diagnosis of PTSD and his belief that the knife incident was sufficient to constitute a Criterion A stressor for the purpose of satisfying the DSM-V diagnostic criterion for a PTSD. For the reasons set out earlier in this decision, the evidence of Mr Francis and his diagnosis of PTSD simply cannot be accepted. This raises concerns regarding the extent to which his evidence should be accepted by the Commission. [244] Thirdly, there is also an issue with the accuracy of the history provided to Mr Francis by the Appellant. In his oral evidence, the Commission took Mr Francis to a report he authored dated 11 October 2021186 which included the following passage: 185 See R v Turner [1975] QB 843, 840 (Lawton LJ), Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J). 186 Exhibit 1, pp. 39-40 – Medical report of Mr Laurie Francis dated 11 October 2021. -- 47 of 68 -- 48 Venilu reported that after the first GP visit the conflict did not abate but got steadily worse. Venilu states that her efforts to resolve the matters with her superiors fell on deaf ears. In the months April through to December 2018, Venilu reported further episodes of interpersonal conflict and mistreatment to the point she felt threatened, isolated and ignored -helpless and hopeless of making any change in the situation at work. Venilu reported that her second visit to the GP in December 2018 was prompted because Venilu was finding it increasingly hard to function physically and emotionally. Venilu reported that by December 2018 the "pressures at work" had escalated and her symptoms became more apparent, frequent, intense and intrusive.187 [245] Mr Francis in a response to the question from the Commission confirmed that if the Commission ultimately accepted that the evidence established that following the meeting on 27 April 2018, a series of one-on-one meetings with Ms Locke occurred with no issues and no complaints from Ms Dones, and there were no further reports of bullying or intimidation from May to December 2018, this would be inconsistent with the history reported to him by Ms Dones.188 [246] As noted in these reasons, the Appellant gave clear evidence that her dealings with Ms Locke following the meeting on 27 April 2018 were all amicable. Ms Dones does not identify any further stressors that occur post the meeting on 27 April 2018. [247] I am therefore satisfied that Mr Francis has also acted on an inaccurate history provided by the Appellant. [248] The fourth issue with the evidence of Mr Francis is that he appears to have crossed the line to become an advocate for Ms Dones, rather than to provide independent expert evidence to the Commission. [249] It is inappropriate for an expert witness to act as an advocate for a party rather than as an impartial expert witness: see R v Butler189 and per Callinan J. in Fox v Percy.190 [250] An expert witness should never assume the role of an advocate and argumentative or adversarial evidence may be rejected.191 [251] In my view there is clear evidence in the three reports of Mr Francis dated 11 October 2021192 187 Ibid, p. 40. 188 T.2-41, ll.10-27. 189 R v Butler [2009] QCA 111 at [127] to [128] (Keane JA). 190 Fox v Percy [2003] 214 CLR 118 at 167-168 [151]. 191 J D Heydon, Cross on Evidence, Looseleaf Service, [29080], p. 29,062. 192 Exhibit 1, pp.39-46. -- 48 of 68 -- 49 that he has taken on a role advocating for Ms Dones. This is particularly so where Mr Francis attempts to establish probable motivation for Ms Locke bullying the Appellant. [252] For the four reasons set out above, I therefore also consider that the evidence of Mr Francis as it relates to the causation of the Appellant's injury should also be given minimal to no weight. [253] In Weiss v Workers' Compensation Regulator,193 Industrial Commissioner Knight in determining a workers' compensation appeal in relation to a psychiatric injury noted: [168] Where an employee is unable to prove that the events which are claimed to have caused their injury occurred in the circumstances as described and as relied on by medical practitioners, a finding that employment is the major significant contributing factor is generally not available to the Commission.194 [254] This appears to be an apt observation as to what has occurred in this appeal. In the present case, there are work-related stressors which appear to be operating up until the end of April 2018. I have found three of these to be of a minor nature, another relating to the Appellant's contract extension, to be more significant, but of a very short duration. Similarly, the two meetings occurred over a relatively short period of time. [255] In any event, it appears that the work-related stressors were largely resolved from May 2018 onwards, and the Appellant from that time on had a productive, and amicable relationship with Ms Locke and the other managers. [256] The significant stressors that appear to be operating in the period after April 2018 appear to be non-work related, firstly the serious financial difficulties that the Appellant was experiencing, and the issue regarding marital difficulties. [257] Given the factual and medical evidence summarised above, it is not possible to clearly separate the various contributing factors to the onset of the Appellant's psychological or psychiatric injury. The process of reaching a determination on the issue of the causation of the Appellant's psychological or psychiatric injury has been made more difficult in circumstances where I consider that the Appellant has been less than candid with the Commission about the personal stressors impacting upon her during the relevant period. [258] Given this, I have not been able to reach the necessary level of persuasion that the Appellant has established that her employment was the major significant contributing factor to her 193 [2020] QIRC 111. 194 Ibid, [168], (Knight IC) citing WorkCover Queensland v Buchanan (2000) 165 QGIG 124; Vensa Misevksi v Q- COMP (C/2009/29); Newman v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 182; Wicks v Workers' Compensation Regulator [2018] QIRC 63. -- 49 of 68 -- 50 injury. [259] I am therefore not satisfied that the Appellant's employment with TAFE was the major significant contributing factor to her injury. That being the case, the appeal must be dismissed. [260] Should I be in error in respect of whether the Appellant has a work-related injury, I will go on to consider whether the Appellant's injury is withdrawn from s 32(1) by operation of s 32(5) of the Act. Consideration of reasonable management action [261] The Appellant bears the onus of demonstrating that the injury is not excluded by reasonable management action provisions in s 32(5) of the Act. [262] In Davis v Blackwood,195 ('Davis') President Martin J. stated the following – 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 considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable. … I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an "injury". In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.196 [263] In Simon Blackwood (Workers' Compensation Regulator) v Mahaffey,197 ('Mahaffey') President Martin J. provided the following observations regarding the operation of s 32(5) of the Act: What does s 32 require? This section has been the subject of consideration on many occasions. In this case, there was conduct (the harassment) which was a cause of the disorder and which did not come within s 32(5) and there was conduct (the telephone answering issue) which was a cause of the disorder and which did come within s 32(5). Thus the following question arises: 195 [2014] ICQ 009, 51. 196 Davis v Blackwood [2014] ICQ 009, 51. 197 [2016] ICQ 010. -- 50 of 68 -- 51 If a particular stressor is held: (a) to have been a cause of a psychiatric or psychological disorder, and (b) to have arisen out of, or in the course of, reasonable management action reasonably taken, then is the psychiatric or psychological disorder excluded from the definition of "injury" in s 32(1) no matter what else may have caused the disorder? … Section 32 (1) is concerned with consideration of an injury which arises out of, or in the course of, employment. In other words, it covers the whole gamut of the employment relationship. It does not confine its operation to particular aspects of the employment, rather, it emphasises that all of the employment is to be considered because an "injury" will only come within the definition "if the employment is a significant contributing factor to the injury". A distinction can then be drawn with the provisions of s 32(5). Putting to one side s 32(5)(c), that section is concerned with "reasonable management action" which is actually taken or a worker's expectation of perception of such action. In other words, it is concerned only with a "slice" of the employment. … The question which arises in this case, and which has been set out above, could, if answered in the way proposed by the appellant, lead to circumstances where a worker who nominated two stressors would be denied compensation if one of those stressors was reasonable management action etc., even if the unchallenged expert evidence was that its contribution to the disorder was minimal. Similarly, the appellant's answer would also deny a worker compensation if a disorder was the result of ten stressors, each of equal importance, but where one fell within s 32(5).198 [264] In Workers' Compensation Regulator v Langerak,199 President Martin J. observed: The ultimate question under s 32(5) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment. The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.200 [265] Management action need only be reasonable; it is not required to be perfect. Instances of imperfect but reasonable management action may (where appropriate) be considered to be a 'blemish'. Management action that is blemished may still be reasonable.201 198 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10, 32. 199 [2020] ICQ 2, 86. 200 Workers' Compensation Regulator v Langerak [2020] ICQ 2, 86. 201 Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97, [26], (Merrell DP). -- 51 of 68 -- 52 Was there management action? [266] For s 32(5) of the Act to be enlivened, I have to be satisfied that there has been relevant management action taken in connection with the Appellant's employment. [267] Other than the broad examples provided in s 32(5) of the Act the phrase "management action" is not otherwise defined in the Act. [268] In O'Brien v Q-Comp,202 Vice President Linnane referred (with approval) to the scope of management action as considered by the Ontario Supreme Court in Canadian General Electric Company Limited v The Ontario Labour Relations Board,203 ('Canadian General Electric'). [269] In Canadian General Electric the Supreme Court was required to determine whether the Ontario Labour Relations Board acted beyond its jurisdiction in issuing certificates that a trade union was a bargaining agent for particular employees of the applicant company. One of the questions was whether or not the employees concerned exercised 'managerial functions' within the meaning of the relevant statute. In considering this issue, Wells J observed: ...managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages … The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking of an operations, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious … that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise…204 [270] Deputy President Merrell in Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator205 confirmed that the decision of Wells J in Canadian General Electric is of some assistance in construing the phrase 'management action' in s 32(5) of the Act.206 [271] In Allwood v Workers' Compensation Regulator,207 Deputy President O'Connor (as His Honour then was) described 'management action' in the following terms: 202 (2007) 185 QGIG 383. 203 (1956) OR 437. 204 Ibid 443. 205 (n201). 206 Ibid [35]. 207 [2017] QIRC 088. -- 52 of 68 -- 53 The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment… … …The exclusory action in s32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…208 [272] In Mahaffey v Simon Blackwood (Workers' Compensation Regulator),209 Deputy President Kaufman determined that a manager's interaction with staff, at least to the extent of giving directions and making requests of them, fits within the concept of management action.210 [273] In Allen v Workers' Compensation Regulator211, Deputy President O'Connor (as His Honour then was) determined that a meeting held to discuss the appellant's position description, remuneration and hours of work constituted management action for the purposes of s32(5) of the Act. [274] The meeting of 16 April 2018 involving the Appellant, Mr McAuliffe and Ms Locke, I find was called to address issues relating to the Appellant's attendance/work pattern and the three- week delay in entering attendance data for the Cairns Faculty. Given this, it was clearly relevant management action taken in connection with the Appellant's employment. [275] The further meeting held on 27 April 2018, which involved the same three participants, but also Mr Bray was arranged effectively at the request of the Appellant to clarify concerns that the Appellant held arising from the first meeting. I am also satisfied that this constituted relevant management action taken in connection with the Appellant's employment. [276] The issues surrounding the extension of the Appellant's temporary contract, the initial offering of a six-month contract and the subsequent amendment to a 12-month extension, also involve management action taken in connection with the Appellant's employment. [277] The other issues raised by the Appellant as being causative of her psychological injury involving Ms Locke speaking to the Appellant about lunch breaks, calling out across the room and being late back from lunch, also involve in my view, management action being taken in connection with the Appellant's employment. [278] I am therefore satisfied that the Appellant's injury arose out of management action. 208 Ibid [60] and [68]. 209 [2015] QIRC 116. 210 Ibid [32]. 211 [2018] QIRC 41. -- 53 of 68 -- 54 Did the injury arise out of reasonable management action taken in a reasonable way? Stressor 1 Appellant eating her lunch at her desk [279] As noted earlier, the Appellant alleges that in approximately June 2017, she had started to eat her lunch at her desk, and Ms Locke challenged her about this in an intimidating manner and told the Appellant that she was not allowed to eat her lunch at her desk.212 The Appellant alleged that she was singled out because she did not hear Ms Locke 'pull up anyone else' about eating at their desk.213 The Appellant provided this as an example of her being micro- managed and bullied by Ms Locke. [280] Ms Verdes in her evidence confirmed that she had not been spoken to about eating her lunch at her desk. She went on to allege that there were double standards because friends of Ms Locke in the team would eat lunch at their desk and nothing would be said, but some people in the team if they had food at their desk, they would be called out.214 [281] Ms Locke in her evidence confirmed that she remembered the incident and stated that she did not speak loudly, inappropriately or in a condescending manner to the Appellant. Ms Locke further explained that she had instances of other staff members eating at their desks and this made her aware of ensuring that people were having their actual lunchbreak.215 [282] Ms Locke said that she had explained to Ms Dones that she did not have an issue with people eating at their desks, but team members were required to have their 45-minute break away from their desk because they do data entry.216 Ms Locke noted that the team had previously experienced team members suffering from repetitive strain injuries ('RSI'), and to address this management provided ergonomic keyboards and mice, increased the lunchbreak from 30 minutes to 45 minutes and required team members to be away from their desk during the lunch break.217 [283] This issue was also addressed in the evidence of Mr Bray, who noted that management did not encourage staff to eat at their desks, particularly the data team, because they do a lot of manual data entry in front of their computer screens all day. He noted that they encourage 212 T.1-8, ll.20-40; T.1-57, ll.17-21; Appellant's submissions, (n 33), [6]. 213 T.1-8, l.26. 214 T.2-10, ll.35-39. 215 T.3-55, ll.35-38; T.3-61, ll.5-25. See also Exhibit 1, pp. 141-142: Meeting notes from the meeting on 27 April 2018, in particular at p. 142. 216 T.3-55, ll.38-42. 217 T.3-56, ll.1-7. -- 54 of 68 -- 55 staff to get up, go have lunch and get out of the office, but not sit at their desk and have lunch.218 [284] Ms Dones appears to genuinely believe that Ms Locke raising this issue with her was an example of her being bullied, singled out and micro-managed by Ms Locke. The authorities confirm that it is the reality of the employer's management action or conduct that must be considered and not the employee's perception of the employer's management action or conduct.219 [285] I accept and prefer the explanation of Ms Locke and Mr Bray as to why the issue of staff eating at their desk was raised with the Appellant (and others). I am satisfied that this was reasonable management action taken in a reasonable way in connection with the Appellant's employment. Calling out across the room [286] The Appellant alleges that on another occasion sometime between June and December 2017 she called out to Ms Locke and Ms Locke told her that she should not be yelling across the room.220 [287] Once again Ms Locke recalled the incident. Her evidence was that the Appellant was sitting at a desk near the photocopier and she called out to Ms Locke. Ms Locke asked her to "please get up and come and speak to me. Don't call out across the room". Ms Locke went on to explain that they had been receiving complaints from other team members about how noisy the data team was.221 [288] In response to a question from the Commission, Ms Locke conceded that her tone may have been annoyed on that occasion because it was an issue that had been occurring with the team, however, she did not believe that her tone would have been overly harsh.222 [289] Given that there had been complaints received about the data team being noisy, I consider that it was reasonable management action for this issue to be raised with data entry team members, and specifically for the need to be quieter to be reinforced with the Appellant on this occasion when she had yelled out. To the extent that Ms Locke may have had an annoyed tone in her voice on this occasion, I would consider this to be a blemish on otherwise 218 T.3-14, ll.11-26. 219 Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481, 481 (President Hall); Deshong v Workers' Compensation Regulator [2021] QIRC 205, [101] (Merrell DP). 220 T.1-8, ll.44-49; T.1-9, ll.1-14; Appellant's submissions (n 33), [6]. 221 T.3-62, ll.1-18. 222 T.3-62, ll.21-25. -- 55 of 68 -- 56 reasonable management action. Questioning whether the Appellant's afternoon tea was her lunch [290] The Appellant alleges that on occasions Ms Locke would question her when she was having afternoon tea as to whether it was her lunch. The Appellant provided an example of this occurring in the week commencing 5 February 2018, alleging that Ms Locke spoke to her in a condescending, authoritative and unfriendly manner and was "lording" over her.223 [291] Ms Locke did not specifically recall the incident when questioned in cross-examination. Ms Locke did confirm that she would have been checking to confirm that Ms Dones had actually physically had a lunchbreak. She noted that her concern would have been if Ms Dones was just making food at 3:00 pm, whether she had not had a break throughout the day.224 [292] Ms Locke further noted that according to the Certified Agreement,if a member works greater than five hours, they are entitled to a 30-minute break. She also noted that at this time (February 2018), Ms Dones was having issues with her hands, so she was very conscious that Ms Dones had proper breaks.225 [293] Ms Locke was challenged in cross-examination whether she had similarly called out other staff members if she saw them outside lunch break going to the kitchen to prepare food and she responded that she had done that before.226 [294] Once again, the Appellant has perceived Ms Locke questioning her whether her afternoon tea was her lunch in a negative way as Ms Locke micro-managing her and bullying her. As noted above, I have to consider the reality of the management action rather than the Appellant's perception of the management action. [295] I consider the explanation provided by Ms Locke as to why she would be questioning Ms Dones (or any other staff member) preparing food at 3:00 pm as to whether that was their lunch to be inherently plausible. Given that management had a live concern about data entry team members not taking a break away from their desk, it would be an issue of potentially significant concern for Ms Locke if a team member was working until 3:00 pm without a break. Further, where that team member was suffering from a hand injury (at the relevant time) this would only exacerbate those concerns. [296] In light of the above, I am satisfied that the actions of Ms Locke in confirming with the 223 T.1-12, ll.1-27; Appellant's submissions (n 33), [6]. 224 T.3-65, ll.1-6. 225 T.3-65, ll.8-11. 226 T.3-65, ll.20-30. -- 56 of 68 -- 57 Appellant whether she had a lunch break when she was preparing food at 3:00 pm was reasonable management action. I am not satisfied that Ms Locke when doing so spoke to the Appellant in a condescending, authoritative or unfriendly manner as alleged by the Appellant. I am therefore satisfied that the management action was also taken in a reasonable way. Stressor 2 Six-month contract extension [297] The Appellant alleges in the ASOFC and her submissions227 that in April 2018 the four ISOs on contract received contract extension offers. The three other ISOs received contract extensions of 12 months, however the Appellant was only offered six months. The Appellant in her evidence stated that she assumed that she was going to lose her job.228 [298] The Appellant in her evidence confirmed that the contract offer was signed by Mr Bray, despite this, she alleged that she took it to Mr McAuliffe to also sign and she asked him why the extension was only for six months and Mr McAuliffe is alleged to have replied "Oh, we are going to have a meeting with you about that".229 Ms Dones said that she experienced anxiety about losing her job and the fear that Ms Locke wanted to get rid of her.230 [299] The Appellant then confirmed that in the one-on-one meeting with Mr Bray on 20 April 2018, he confirmed that her contract had been extended to 12-months and that the initial offer of a six-month extension was an error.231 [300] Ms Dones further alleged that Mr Bray told her that Mr McAuliffe and Ms Locke did not follow protocol and that he considered that as an error because of their actions.232 [301] The file notes in relation to Ms Dones confirm that the following conversation regarding her contract extension occurred with Mr Bray on 20 April 2018 (according to Mr Bray's contemporaneous file note): Venilu stated that she felt that the initial 6-month contract was due to performance issues that Peter had raised. I again reiterated to her that she should have received a 12 month contract like all other ISOs and was given a 6 month contract in error and that it was not related to any performance issues as there was 227 Appellant's submissions (n 33), [9]. 228 T.1-17, ll.18-29. 229 T.1-17, ll.30-37. 230 T.1-17, ll.36-40. 231 T.1-21, ll.27-37. 232 T.1-22, ll.5-10. -- 57 of 68 -- 58 no formal performance management process being undertaken.233 [302] Mr Bray in his oral evidence provided the following explanation of the contract extension process:234 • At the time TAFE's HR processes were not very sophisticated. The contract extension process for temporary staff was undertaken by People and Culture and involved sending out a spreadsheet with the contract ending date for the staff member and the proposed next contract. • Mr Bray noted that there would have been a couple of hundred staff across TAFE Queensland who were on temporary contracts. • He identified that Ms Dones has been noted down for a six-month contract extension when she should have received a 12-month extension. Mr Bray suspected that it was just an administrative error. • Mr McAuliffe and Ms Locke did not have any input into Ms Dones' contract extension, this was not within their delegated authority, it was entirely within Mr Bray's delegation. • Mr Bray reiterated to Ms Dones that she should have received a 12-month contract extension and he contacted People and Culture and had a contract re-issued for a 12- month extension quite quickly after 20 April 2018. [303] Ms Locke also confirmed that the initial six-month contract extension was an error.235 [304] The Respondent in its submissions contends that the evidence readily establishes that whilst it was an error to offer the Appellant a six-month contract extension, this was immediately corrected when it was raised with Mr Bray in the meeting on 20 April 2018.236 [305] The Appellant's submissions contend that Mr Bray signing all contract extensions for all four contract employees before sending them, proves that there was not an administrative error. The Appellant further submits that Mr Bray should have corrected the administrative error in the first instance prior to sending out the contract extension to all four contract staff. The Appellant submits that the management action was unreasonable because Mr Bray failed, as a responsible and reasonable Executive Director to ensure that all contract extensions were 233 Exhibit 1, p. 121: File note of meeting with Mr Bray on 20 April 2018. 234 T.3-11, ll.7-37. 235 T.3-71, ll.1-27. 236 Respondent's submissions, (n 63), [14]. -- 58 of 68 -- 59 carefully checked, prior him signing and distributing them.237 [306] In relation to the issue of the Appellant's contract extension I make the following factual findings based on my acceptance of the evidence of Mr Bray and Ms Locke: • The initial offer of a six-month contract extension to the Appellant was an administrative error and was not related to concerns about the Appellant's performance. • The responsibility for organising and administering the contract extension process lay with TAFE's People and Culture team, and it was ultimately Mr Bray that had the delegated authority to offer a contract extension and sign-off on the contract extension. • Neither Mr McAuliffe nor Ms Locke had the necessary delegation to make decisions about whether the Appellant should be offered a contract extension, or the length of that extension. • Upon it becoming apparent that the Appellant had been offered a six-month contract extension in error, the situation was promptly addressed by People and Culture and Mr Bray and resolved in approximately one week. [307] Administrative errors can occur in an organisation of any size, particularly one as large as TAFE Queensland. [308] Although the initial error was unfortunate, I am satisfied that it was promptly remedied by Mr Bray, and the Appellant received a 12-month contract extension like the other ISOs within approximately one week. I am therefore satisfied that this constituted reasonable management action taken in a reasonable way by Mr Bray in connection with the Appellant's employment. As a consequence, the exclusion for reasonable management action in s 32(5)(a) of the Act is enlivened. [309] Further, to the extent that the Appellant perceived that this was action being taken against her by Mr McAuliffe and Ms Locke to either threaten her employment, or to remove her from the workplace, the Appellant's injury arises out of her expectation or perception of reasonable management action being taken against her and is therefore excluded pursuant to s 32(5)(b) of the Act.238 As noted above, it is the reality of the employer's conduct that must be considered by the Commission and not the Appellant's perception of that conduct. 237 Appellant's submissions, (n 33), [12]-[13]. 238 See Read v Workers' Compensation Regulator [2017] QIRC 072, [31] (O'Connor DP as His Honour then was). -- 59 of 68 -- 60 [310] Even if I were to accept the Appellant's contention that the six-month contract extension was offered because of concerns regarding the Appellant's attendance and conduct, I would still have considered this to be reasonable management action taken by TAFE. In my view concerns regarding the Appellant's attendance in the first three months of 2018 and her work performance were genuine and would have been legitimately held by management and would have justified the Appellant only being offered a six-month contract extension. Two-on-one meeting on 16 April 2018 [311] As noted earlier in these reasons, the genesis of the meeting held on 16 April 2018 was two- fold. Firstly, there were concerns over the Appellant's work attendance in the first few months of 2018. The Appellant had approved recreation leave from 5 to 16 February 2018, but ultimately only took one week of this from 12 to 16 February 2018. [312] The file notes prepared by Mr McAuliffe and Ms Locke establish repeated instances from January 2018 to 4 April 2018 of the Appellant calling in sick,239 arriving late or leaving early,240 or being absent due to surgery on her trigger finger.241 I further note the file note entry of 29 January 2018 which noted that the sick leave for that day had been converted to recreation leave because the Appellant had exhausted her sick leave.242 [313] In the period from 3 January 2018 (when the Appellant was due to return to work from holidays) to Friday, 6 April 2018, there were 65 working days. The Appellant was absent on some form of sick leave for 15 of those days and was late or left early on another 11 days. [314] Secondly, there were concerns regarding the Appellant's work performance, particularly arising out of the complaint received from the Cairns campus regarding the three-week delay in March 2018 for recording student attendances. [315] I have earlier accepted in these reasons that Mr McAuliffe and Ms Locke were directed by Mr Bray to hold a meeting with the Appellant to address these issues with her. [316] I am satisfied that there were legitimate concerns held both over the Appellant's attendance and her work performance and it was appropriate and reasonable management action to call a meeting with her to address these issues. 239 Exhibit 1, Files notes, pp.119-120 – 3 January 2018; 29 January 2018; 30 January 2018; 19 February 2018; 22 March 2018. 240 Ibid, 5 January 2018; 10 January 2018; 1 February 2018; 2 February 2018; 5 February 2018; 9 February 2018; 21 February 2018; 22 February 2018; 26 February 2018; 23 March 2018; 4 April 2018. 241 Ibid, 1 to 14 March 2018. 242 Exhibit 1, p. 119 - File note dated 29 January 2018. -- 60 of 68 -- 61 [317] The Commission has available to it, two contemporaneous documents setting out what occurred at the meeting. Firstly, the Appellant's file notes include a note for 16 April 2018 which relevantly provides:243 Due to a number of issues with Venilu's performance, including a complaint from the TAFE Queensland North AMEP team, Peter and Lynn met with Venilu to discuss (see attachment 2- 16 April 2018). This was not a formal performance management meeting. Issues raised included: • Need for better communication with Lynn Locke, particularly in relation to progress towards work deadlines. • TAFE Queensland North complaint about delays in data entry. • Venilu's understanding of processes, data timelines and workflow. • Work pattern • 1:1 meetings between Lynn and Venilu [318] I note that the one-on-one meetings with the Appellant referred to in the note, were to be normal monthly supervisory meetings that applied to all ISOs, not just to the Appellant. [319] The second item of documentary evidence is an email from Mr McAuliffe to the Appellant and Ms Locke sent on Friday, 20 April 2018 setting out a summary of the meeting held on 16 April 2018.244 That email relevantly provides: • Improvement in communication with your supervisor Lynn Locke is required. Be open. Particularly in relation to progress towards work deadlines. While it may at times be difficult to have these conversations it is critical they Lynn is appraised of any problems in meeting deadlines. • A complaint was received from TQN about delays in data entry which was impacting on TQN staff's as they were not able to get accurate updates on client attendance. This related to the Cairns sites for which you are responsible. • Lack of understanding of required processes, timelines, spreadsheets, so Lynn will examine your workflow and practices as a means of seeking improved efficiency. This will assist you in meeting the tight deadlines as well as providing a structured workflow. • There is concern around the hours that you are working. Not consistently the same. A consistent work pattern is required. • With the current injury problems you are having with your hand, you need to manage your work better and also not work long or odd hours. Lynn's analysis of your work practices and processes will hopefully create efficiencies that do not require you to work excessive hours. • Do not be concerned about asking questions. This is not admitting lack of knowledge but seeking clarity around processes. • Lynn to organise monthly chats to assess how you are working towards goals and improved work performance. If any additional assistance is noted as being required this can be discussed. [320] Arising from that meeting no disciplinary action in any form was taken against the Appellant. 243 Exhibit 1, p.120: File note dated 16 April 2018. 244 Exhibit 1, p. 139. -- 61 of 68 -- 62 Further, the Appellant was not placed on any form of a formal or informal performance management plan. To the extent that the Appellant was required to attend one-on-one meetings with Ms Locke, this equally applied to all of the other ISOs, I am satisfied the Appellant was not being singled out in any way. [321] In the Appellant's submissions, the Appellant contends that during the meeting she sought clarification about the Cairns campus complaint, however no specific details were provided to her.245 [322] To the extent that this remained a point of contention for the Appellant, I am satisfied that the evidence establishes that the three weeks where there was a delay in the Appellant entering student attendance data occurred in March 2018. This is consistent with the complaint from the Cairns campus being received in early April 2018, and it is also consistent with this being a more significant issue because finalisation of the student attendance data was required for the end of the first quarter. [323] I am further satisfied that the evidence available to the Commission supports a conclusion that the three weeks in question were the last three weeks in March 2018. In reaching that conclusion I note the email that the Appellant received from Mr Dan Bailey, another ISO employed in the data entry team on Wednesday, 9 May 2018.246 In that email, Mr Bailey was attempting to assist the Appellant in providing a response to Mr Bray, following the Appellant receiving the minutes of the meeting held on 27 April 2018 from Mr Bray. [324] The email from Mr Bailey includes the following: …There was no delay in my work being uploaded by the EOM deadline and therefore no financial impact on the TELLS department. The notes imply I was late in submitting my data but I was only late in entering weeks 3, 4 and 5 for the Cairns site only.247 [325] The quite specific information noted in Mr Bailey's email regarding the weeks in which the data had not been entered could only have been conveyed to him by the Appellant. This indicates that the data for the first two weeks of March 2018 had been entered, and this was the period when the Appellant was absent due to her surgery. [326] The delay in entering the subsequent weeks appears to occur at a time when the Appellant had returned to work. I am therefore not prepared to accept the Appellant's evidence that the backlog was caused by a failure by Ms Locke to assign her work to another ISO whilst she was absent for the surgery on her hand. As a consequence, I do not accept the Appellant's 245 Appellant's submissions (n 33), [18]. 246 Exhibit 1, p. 140. 247 Ibid. -- 62 of 68 -- 63 submission that Ms Locke failed in her duty as the Appellant's supervisor to allocate the Appellant's data entry work whilst she was away. [327] Whatever the reason for the failure to enter the Cairns Campus student data on time, I am satisfied that this was an appropriate issue to be discussed with the Appellant in a meeting. [328] A further issue raised by the Appellant is an allegation that both Ms Locke and Mr McAuliffe failed to raise her performance issues with her at an earlier time and delayed until 16 April 2018. [329] The Appellant notes that in her performance development ('PDP') meeting held with Ms Locke in February 2018, no issue was raised with her about her performance and Ms Locke indicated that she was happy with the Appellant's performance. The Appellant confirmed that Ms Locke did raise the Appellant's attendance issues and informed Ms Dones that she could not just come to work anytime she wanted.248 [330] The simple explanation for the alleged failure to raise any performance concerns in the PDP meeting appears to be that the performance issues relating to the backlog in data entry occurred after the PDP meeting held in February. I am satisfied that concerns regarding the backlog in data entry were raised in a timely manner with the Appellant. [331] The Appellant further alleges that the conduct of the meeting was unreasonable because there was a power imbalance in conducting a two-on-one meeting and she was not given a chance to get someone to act as her support during the meeting.249 [332] In relation to the latter contention, the Appellant was advised of the meeting prior to 16 April 2018. The Appellant noted in her submissions that she had worked for TAFE for more than 25 years, including working in a supervisory role over the data entry team. I am satisfied that the Appellant was aware of her ability to ask for a support person to be present but did not do so, either before, or during the meeting. This indicates to me that the Appellant felt comfortable in attending the meeting. [333] The contemporaneous documentary evidence confirms to my satisfaction that the meeting was reasonable management action conducted in a reasonable way. The meeting outcomes set out in the email from Mr McAuliffe dated 20 April 2018 were all appropriate actions to address the issues that had arisen with the Appellant's attendance and work output. [334] The Appellant has failed to satisfy me that either the requirement to attend the meeting on 248 T.1-15, ll.15-41. 249 Ibid, [21]. -- 63 of 68 -- 64 16 April 2018, or the manner in which the meeting was conducted constituted unreasonable management action or management action not taken in a reasonable way. Stressor 4 Meeting with Mr Bray on 20 April 2018 [335] The Appellant alleges that Mr Bray called her to attend his office on 20 April 2018 to discuss the contract extension and that during the meeting she raised the knife incident with Mr Bray and Ms Locke's misconduct towards her.250 [336] The Appellant's version of what occurred on 20 April 2018 was rejected by Mr Bray in his evidence. Mr Bray's evidence about what occurred at that meeting was consistent with his contemporaneous file note.251 [337] Mr Bray clarified with the Appellant the reason for the one-on-one meetings with Ms Locke and noted that it was his expectation that all staff in TELLS have the opportunity to meet one-on-one with their supervisor once a month. Mr Bray also confirmed that this was not performance management. [338] Mr Bray also confirmed that the issues relating to performance were being raised because of the complaint from the Cairns campus. [339] In cross-examination Mr Bray went on to reject the propositions put to him by the Appellant that:252 • He had called the Appellant and requested her to attend his office. Mr Bray noted that during the afternoon of 20 April 2018 the Appellant had come to his door to raise concerns about the meeting held on 16 April 2018. • During the meeting the Appellant had raised the knife issue and Ms Locke's treatment of her. Mr Bray confirmed that what was raised was the Appellant's unhappiness with the meeting on 16 April 2018 and her confusion about performance issues being raised with her. Mr Bray noted that he offered to chair a further meeting to clarify issues. • Mr Bray did not recall having a contract for a 12-month extension which he signed during the meeting. He also denied having any conversation with Kimberly Wilkinson, the HR partner for TELLS prior to the meeting on 20 April 2018. 250 T.1-21, ll.27-48; T.1-22, ll.5-20. 251 T.3-9, ll.29-47; T.3-10-T.3-11; Exhibit 1, file note of meeting with Scott Bray on 20 April 2018, pp.120-121. 252 The relevant evidence from Mr Bray during cross-examination is at T.3-25 to T.3-27. -- 64 of 68 -- 65 [340] In response to a question from the Commission, Mr Bray confirmed that if there had been any mention of either the knife incident or Ms Locke's alleged mistreatment of the Appellant in the meeting on 20 April 2018, it would have been included in his file note which was written straight after the meeting. [341] In light of the above, I accept and prefer the evidence of Mr Bray as to what occurred in the meeting on 20 April 2018. Mr Bray's contemporaneous file note sets out in some detail what was discussed with the Appellant on that occasion.253 [342] I am satisfied that the actions of Mr Bray on 20 April 2018 constitute reasonable management action taken in a reasonable way. Stressor 5 Meeting on 27 April 2018 [343] On 27 April 2018 the meeting involving the Appellant, Mr Bray, Mr McAuliffe and Ms Locke took place. This meeting was arranged in the meeting between Mr Bray and the Appellant on 20 April 2018. [344] I have addressed earlier in these reasons the Appellant's contention that she raised the knife incident in this meeting and provided specific details regarding that incident. The Appellant further alleges that she provided detailed information regarding how she had been mistreated by Ms Locke. The Appellant alleges that this information was missing from the meeting minutes prepared by Mr Bray.254 [345] In her submissions, the Appellant repeats the submission that the manner in which the meeting on 27 April 2018 occurred, with three managers attending, created a power imbalance which made the conduct of the meeting unreasonable management action. The Appellant again alleges that she was not given a chance to get someone to act as her support person during the meeting. [346] I make the same findings in relation to this submission as I did for the meeting held on 16 April 2018. Ms Dones had been aware from 20 April 2018 that the three-on-one meeting was scheduled for 27 April 2018. Ms Dones was an experienced employee and I am satisfied that she would have known of her ability to ask for a support person had she required one. At no point in either meeting did the Appellant make this request or voice any concern about 253 Exhibit 1, pp.120-121: File note of Scott Bray dated 20 April 2018. 254 T.1-22, ll.20-48; T.1-23 to T.1-24, ll.1-27. -- 65 of 68 -- 66 the presence of multiple managers. I do not accept that the manner in which the meeting on 27 April 2018 was conducted was unreasonable. [347] Regarding the conflict in the evidence between Mr Bray and the Appellant as to what was discussed in the meeting on 27 April 2018, I prefer and accept the evidence of Mr Bray255 which was corroborated by his meeting record.256 [348] The meeting record confirms that the issue of the Appellant having a consistent work pattern was the subject of discussion in the meeting. The agreed actions in relation to that issue were: • Venilu to email Lynn for approval where there is any variation to agreed work pattern • Lynn and Peter to continue to review timesheets • Any issues regarding work pattern to be raised with Venilu.257 [349] The other issue discussed was the need for the Appellant's practices and processes to be in line with ISO requirements and contractual requirements, in particular relating to data entry being performed on time. The agreed actions in relation to this issue were recorded in the meeting record as: • Venilu to flag with Lynn at the earliest opportunity if she has fallen behind with any data entry • Lynn to continue to monitor ISO tracking spreadsheet and raised any issues with Venilu's data collection.258 [350] At the end of the meeting record Mr Bray noted that the Appellant had tabled two issues at the meeting, firstly the occasions where she alleged Ms Locke had spoken loudly to her or with a tone, and secondly the knife incident. [351] I am satisfied that the meeting record prepared by Mr Bray is an accurate summary of the issues discussed at the meeting on 27 April 2018. I am further satisfied that the evidence of Mr Bray and the meeting record confirms that this meeting was reasonable management action and that it was conducted in a reasonable manner. A further issue [352] Earlier in these reasons I have set out the substantial support that has been provided to the Appellant by each of Ms Locke, Mr McAuliffe and Mr Bray following the meeting held on 27 April 2018 and up until 12 December 2018. In addition, I note that the Appellant at various times was afforded further flexibility regarding work attendance to address issues 255 T.3-11, ll.40-45 to T.3-17. 256 Exhibit 1, pp. 141-142: Meeting record: 27 April 2018. 257 Ibid, p. 141. 258 Ibid, p. 142. -- 66 of 68 -- 67 arising in her personal life. [353] I consider that all of that management action was reasonable and reasonably taken. I am further satisfied that the Appellant's psychological/psychiatric injury has arisen in the course of that reasonable management action taken by her managers. Conclusion – Reasonable Management Action [354] For the reasons set out above, in relation to each of the stressors that I have found to be substantiated, I am satisfied that the Appellant's psychological or psychiatric injury arose out of, or in the course of, management action that was reasonable and reasonably taken. As a consequence, s 32(5)(a) of the Act operates to remove the Appellant's psychological or psychiatric injury from the statutory definition of "injury". [355] I am also satisfied that in relation to the stressor of the Appellant's contract extension, the Appellant's psychiatric injury has arisen from the Appellant's perception or expectation of reasonable management action being taken against her. As a consequence, s 32(5)(b) of the Act is enlivened to exclude her psychiatric injury. Conclusion [356] In this appeal, the onus was on Ms Dones to prove, on the balance of probabilities, that she suffered an injury within the meaning of s 32 of the Act. Ms Dones has not discharged that onus. [357] For the reasons set out above, I am not satisfied that the Appellant's employment was the major significant contributing factor to her injury. [358] Once again, for the reasons set out above, I am satisfied the management action taken in relation to the stressors that I have found to be substantiated was reasonable and also taken in a reasonable way. As a consequence, s 32(5)(a) and (b) of the Act is enlivened to exclude the Appellant's claim. Accordingly, the Appellant did not suffer an injury within the meaning of the term pursuant to s 32 of the Act. [359] The appeal is dismissed and the Respondent's review decision is confirmed. Orders [360] I make the following orders: 1. The appeal is dismissed. -- 67 of 68 -- 68 2. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 14 December 2021 is confirmed. 3. Failing agreement on costs, the question of costs is to be the subject of a further application to the Commission and shall be determined on any written submissions received and without further oral hearing. -- 68 of 68 --