Bauer v Workers' Compensation Regulator [2018] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Melissa Janne Bauer v Workers' Compensation Regulator [2018] QIRC 149 PARTIES: Bauer, Melissa Janne (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2017/204 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 17 December 2018 HEARING DATES: 22 May 2018 (Mention) 4, 5 and 6 June 2018 (Hearing) MEMBER: HEARD AT: Swan DP Bundaberg ORDERS: 1. The Appeal is dismissed. 2. The question of costs reserved. CATCHWORDS: WORKERS' COMPENSATION - APPEAL - Appeal against decision of Workers' Compensation Regulator - Psychological injury - Diagnosis of injury defined as "psychological distress and anxiety" - Medical practitioner not called to give evidence - Whether injury is excluded from the definition of s 32(5) of the Act - Whether reasonable management action taken in a reasonable way - Delay in hearing the matter some six to eight years after the event - Hearsay evidence - Relevant witnesses not called to give evidence - Injury precluded by the operation of s 32(5) - Appeal dismissed - Question of costs reserved. -- 1 of 24 -- 2 LEGISLATION: CASES: Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32(5), 550, 552A Blackwood v Mana [2014] ICQ 027 Yousif v Workers' Compensation Regulator [2017] ICQ 004 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 Hatzimanolis v A.N.I Corporation Ltd (1992) 173 CLR 437 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100 Misevski v Q-COMP C/2009/29 Avis v WorkCover Queensland [2000] QIC 67 Parker v Q-COMP (2007) 185 QGIG 269 Comcare v Martin [2016] HCA 43 APPEARANCES: Ms M.J. Bauer the Appellant, conducting her own case. Mr G. Clark and Ms S. O'Neill of the Workers' Compensation Regulator. Reasons for Decision [1] Ms Melissa Bauer (the Appellant) has appealed a decision of the Workers' Compensation Regulator (the Regulator) dated 18 March 2013. The injury is described as "psychological stress and anxiety",1 which had been sustained during the course of the Appellant's employment with Creative Activation Field Marketing Pty Ltd (Creative). The date of injury was 6 December 2012. The Appeal before the Queensland Industrial Relations Commission (Commission) was made on 30 October 2017. [2] It is not disputed that the Appellant was a "worker" for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (the Act). [3] The Appellant represented herself in this matter. Every appropriate assistance was given to her by the Commission, prior to (Mention) and during the hearing to ensure that she understood the nature of the Appeal. 1 Exhibit 26. -- 2 of 24 -- 3 [4] A conference was held between the Parties before a Member of the Commission pursuant to s 552A of the Act, on 4 January 2018. Reason for delay in matter proceeding before the Commission [5] The delay in this matter proceeding before the Commission, relates to a number of complaints made by the Appellant against persons who had previously investigated her claim. But for mentioning the reason for the somewhat lengthy delay, those complaints do not form part of, or affect the Decision to be made by this Commission. [6] It should be said however at the outset, that this delay creates an element of understandable difficulty for a number of persons giving evidence. Much of the material contained within the Appeal relates to particular conversations between people either by way of telephone calls or direct interaction. The fact that many instances have been forgotten by various parties, is unsurprising in the circumstances where some of the events occurred around 2011 and 2012. The Appeal to the Commission was made 30 October 2017 and heard at Bundaberg in June 2018. Legislation [7] The relevant legislation at the material time of injury was as follows: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following- (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; … (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 Authority 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 -- 3 of 24 -- 4 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. [8] This Appeal constitutes a hearing de novo and the Appellant bears the onus of proof (see Blackwood v Mana).2 Witnesses [9] Witnesses for the Appellant were:  Ms Melissa Janne Bauer, the Appellant; and  Mr Bevan Bauer, the Appellant's husband. [10] Witnesses for the Regulator were:  Ms Lisa Gilshenan, Field Sales Manager, Diageo Australia Pty Ltd;  Ms Deirdre Hopkinson, Line Manager, Creative Activation Field Marketing Pty Ltd as at May 2011 and in 2012, Merchandiser Manager Queensland, Creative Activation Field Marketing Pty Ltd;  Mr Collin Mann, Business Development Manager, Diageo Australia Pty Ltd;  Mr Richard Hobby, Client Services Director, Creative Activation Field Marketing Pty Ltd; and  Ms Kate Madden (nee Patterson), Employee Relations Manager, Diageo Australia Pty Ltd. [Note: Positions and titles are of those at the relevant material time] Appellant's Statement of Facts and Contentions [11] The Appellant detailed the stressors which she said were causative of her injury: On numerous occasions over a long period of time I contacted my Line Manager Deirdre Hopkinson about incidents where I felt that I was being harassed and bullied by both Colin Mann and Lisa Gilshenan e.g. Both Colin/Lisa calling head office to complain about finger marks on fridges/missing fridge strips, Colin making unnecessary personal comments on my appearance and slandering my character to retail managers. Lisa phoning Ms Hopkinson calling for me to be fired. Lisa Gilshenan asking my BDM to put pressure on me to try and get me to leave as she didn't like me. Colin Mann and Lisa Gilshenan changing the locks and restricting my access to vital products needed to complete my work. That because of no action being taken for issues that I had with Colin and Lisa that I wished to make a formal complaint with Creative Activation, I text Deirdre Hopkinson in relation to this. My Line Manager Deirdre Hopkinson had rang [sic] me to dismiss my complaint and tell me that Creative Activation would not accept any complaint as they did not want to lose Diageo as a client. From the 22 October 2012, I attempted several times to make contact verbally as I was in need of merchandising stock. He refused to return any of my voice messages. It came to my attention that he had been telling several retailers that he was "going to get that bitch fired." 2 Blackwood v Mana [2014] ICQ 027 at [23]. -- 4 of 24 -- 5 My Line Manager Deirdre Hopkinson and Creative Activation had not made any attempts to resolve or help with my issues in the workplace. On 19 November 2012, I had gone to the shed to meet my BDM. He did not turn up I was [denied] access to ANY merchandising products that was vital for my job. I tried to contact Colin by email as my verbal attempts were being ignored. Every time I emailed Colin I CC'd Deirdre Hopkinson so she was aware. I asked Colin to leave merchandise at the office/outlet anywhere so I could fulfil my work, at all time my line manager was aware. This continued until the 3 December.3 [12] In Yousif v Workers' Compensation Regulator 4 Martin J referred to Statements of Facts and Contentions and determined that the Statement should represent a complete statement of the Appellant's case, and, unless appropriate amendments were permitted by the Commission, a party is bound by those facts and contentions and may only lead evidence which relates to the identified matters. Medical Records [13] The Appellant's General Practitioner was Dr Sandra Rizzo who did not give evidence in this hearing. The Commission ensured that the Appellant understood the relevance of Dr Rizzo's non-attendance in that the Regulator would not have the opportunity to cross-examine the Doctor. [14] Subsequently, Dr Rizzo's records of consultations were tendered by consent and are summarised as follows5: 1 June 2012 The Appellant described to Dr Rizzo being very distressed about a work incident where locks had been changed and access denied to the Appellant to products she needed to distribute. A colleague did not cooperate with her and was stressed by colleagues' actions and unable to resolve the situation. This was affecting her sleep and function. She became anxious and frustrated. There was no communication with her by her colleagues. Colleague saying Appellant had slandered him. 19 June 2012 While the presenting problem for the consultation was identified as "stress" the note adds that there are no continuing problems with work colleagues. However, the Appellant advised Dr Rizzo that she dreads going to work on a Monday. 19 July 2012 The Appellant attended a consultation for reasons unrelated to work. However, it is noted that the Appellant stated that there were "no further concerns with work". 9 August 2012 No mention was made of work-related issues. 7 November 2012 No mention of work-related issues. 3 Appellant's Statement of Facts and Contentions, pp 2-3. 4 Yousif v Workers' Compensation Regulator [2017] ICQ 004, [15]-[17]. 5 Exhibit 19. -- 5 of 24 -- 6 6 December 2012 Consultation with the presenting problem as "stress" and a history recorded as: Issue related to incident in May 2012 when locked out of shed resurfaced with no recourse to complaint that she was locked out. This month the same colleague not communicating and not supplying products and claiming Melissa had "slandered" him.6 [15] The date nominated for the Appellant's injury, which is accepted by both parties, is 6 December 2012. Findings of medical records [16] All that can be found from the records is that on 1 June 2012, the Appellant had discussed with Dr Rizzo issues at work which had distressed her, but by 19 June 2012 she had reported that those issues had been resolved, save for her concern at working on a Monday, but only in June 2012. [17] From 19 June 2012, through to just prior to 6 December 2012, which covered a period of four visits to the Doctor, the Appellant had not reported any work-related issues. [18] In the Appellant's consultation with Dr Rizzo on 6 December 2012, she had not mentioned that she had been issued with a show-cause letter from Creative. Background to Appellant's employment [19] The Appellant was employed from 2008 until around March 2012 by REL as a Merchandiser. REL is a promotion company which was contracted to provide merchandising services to Diageo Australia Pty Ltd (Diageo). Diageo is a multinational alcohol distributer. [20] When Diageo transitioned from REL to Creative in March 2012, the Appellant was successful in gaining employment with Creative from 26 March 2012 until the time of her injury in December 2012. Her contract was on a casual basis working one day per week (Mondays) on the Diageo project. [21] The Appellant's duties involved the promotion by her of various alcoholic beverages sold by Diageo, including alcoholic drinks such as Bundaberg Rum and Johnnie Walker Scotch in various venues in the Bundaberg/Wide Bay area. This also included bottle shops and liquor outlets. [22] In 2010, Ms Lisa Gilshenan became the Appellant's Field Sales Manager (FSM) for Diageo and in or around April 2011, Mr Colin Mann began working for Diageo in the role of Business Development Manager (BDM) and commenced working closely with the Appellant. Ms Hopkinson was the Appellant's Line Manager for Creative. 6 Exhibit 19, p 5. -- 6 of 24 -- 7 [23] During this period, the Appellant said that she had been recognised for her work and received State Awards from REL and Diageo.7 The Stressors as identified by the Appellant Bullying and harassment by Ms Gilshenan/Mr Mann Appellant's particular claims against Ms Gilshenan [24] It was submitted by the Appellant that she met Ms Gilshenan at the Carriers Arms Hotel in 2010. After Ms Gilshenan left the Hotel that day, the Appellant's former BDM, Ms Tracey Blanch, advised her to go back to the Hotel because Ms Gilshenan had noticed one of the fridge strips missing and she [viz., Ms Gilshenan] was "going off". [25] Ms Blanch was said to have told the Appellant later that evening that she had advised Ms Gilshenan that she could personally fix the problem as she had the appropriate material in her car. It was alleged that Ms Gilshenan refused this offer and demanded that Ms Blanch call the Appellant to fix it. Ms Blanch was said to have advised the Appellant that she should be careful, as Ms Gilshenan was "gunning for her". Ms Blanch reportedly said that she was advised by Ms Gilshenan to make complaints against the Appellant, saying that she had wanted the Appellant "gone within the month".8 [26] Submitted by the Appellant was that one of the reasons as to why she believed this to be the case was because of the personal relationship that Ms Gilshenan and Mr Mann had with Ms Bauer's previous employer, Ms Keeley Lyon. Allegedly, Ms Lyon was upset that the Appellant had left her employment to work as a Merchandiser for REL.9 [27] Neither Ms Blanch, nor Ms Lyon were called to give evidence in these proceedings. [28] Before considering Ms Gilshenan's response to this claim, in the Appellant's Statement of Facts and Contentions, the Appellant stated that she had very limited, if any contact with Ms Gilshenan. The Appellant's evidence was that Ms Gilshenan's role "wasn't really to have much interaction with me… because she was the line manager for Diageo BDM's".10 The Appellant's allegations concerning the Fridge Strips [29] The Appellant's particular complaint was that she had initially been told how many fridge strips were required to be used at each venue, but she had not been advised when an alteration to that number of strips occurred. This lack of information caused her problems as she had a number of venues to visit for the purpose of adjusting the fridge strips to the new requirement. 7 Exhibit 5. 8 T2-16. 9 Appellant's submissions, [36]. 10 T2-65. -- 7 of 24 -- 8 [30] The Appellant said that: I felt, I suppose, harassed because Colin wasn't giving me any feedback. When he was going out into venues he wasn't going "Gee, Mel, you know that Lisa wants three fridge strips.11 [31] It is submitted by the Regulator that the only evidence concerning complaints by Ms Gilshenan concerning the Appellant was found in an email from Ms Gilshenan to Ms Hopkinson of 20 May 2011 (18 months prior to the Appellant's date of injury) which stated, inter alia that: I really want 3 fridge strips per shelf not one fridge strip under each 6pk - this is to reiterate the branding piece. Don't really care if the fridge strips overlap - overlap on price - let's make sure the branding is there. … Mel has had this communicated to her on numerous occasions from both myself and Colin as well as Tracey.12 [32] The Appellant viewed the content of this email as constituting bullying towards her by Ms Gilshenan because she hadn't been included in the email communication. [33] When Ms Gilshenan became aware of this matter she said that she had advised Ms Hopkinson of her views regarding the fridge strips and requested that Ms Hopkinson follow-up on that matter. [34] Ms Gilshenan said that whether Mr Mann provided the information from Ms Hopkinson to the Appellant "depends on whether he resolved it in one meeting or not. It may have taken him a couple of meetings to resolve this issue".13 [35] In my view, the Appellant was ready to accept the commentary allegedly made by Ms Blanch concerning Ms Gilshenan's attitude towards her and reinforced that view by asking (in the hearing) "I would say why would Tracey (Blanch) lie to me and say they did?". As the Appellant did not call Ms Blanch, the alleged comments were hearsay and that issue is not able to be taken any further. [36] In Re-Examination, Ms Gilshenan was asked as to whether there had been any general information previously provided to merchandisers in relation to multi-location pricing. The East End Hotel was mentioned, by way of example, where the instruction was as follows: Fridge stripping, Three strips to a shelf. This helps show off our brands. This goes for all outlets that use fridge strips.14 [37] The email sent from Ms Hopkinson to the Appellant on 25 May 2011 entitled "Bundy Trip Feedback" was tendered into evidence15 . The abovementioned quote was taken from that email. It is clear from this email, that the Appellant was advised of Creative's directions concerning fridge strips. 11 T3-7. 12 Exhibit 29. 13 T3-59. 14 T3-67. 15 Exhibit 17. -- 8 of 24 -- 9 [38] Ms Gilshenan responded when required to the Appellant's concerns regarding the fridge strips. As the Appellant had stated, and Ms Gilshenan agreed, she had very little to do with Ms Gilshenan. [39] From the material and evidence before me, I have formed the view that the assertion of bullying on Ms Gilshenan's part towards the Appellant, regarding this matter, is unsubstantiated. There is nothing which points to bullying and harassment on the part of Ms Gilshenan towards the Appellant. The Appellant's allegations concerning Ms Gilshenan's attitude towards her [40] Ms Gilshenan's and Ms Hopkinson's evidence concerning this point was as follows:  When Ms Gilshenan first came to work in the same territory as the Appellant, she stated that the Appellant's work performance was "fantastic".  Ms Gilshenan said that at no time had she considered terminating the Appellant's employment. She said that had that been the case, it would not have been difficult to do.  When Creative took over the tender from REL, it was on Ms Gilshenan's recommendation that the Appellant continued to work on the Diageo Project. Ms Gilshenan, in an email to the Appellant on 15 June 2011 thanked her for her performance with certain aspects of her work and also complimented her for her "really nice work".16  Ms Hopkinson confirmed Ms Gilshenan's evidence regarding the work performance of the Appellant during that period. It was noted that FSM's had an input into who went on the Diageo Project and consequently it was reaffirmed that the Appellant should be on that Project.  Ms Hopkinson's evidence was that when she met with Ms Gilshenan, she believed that Ms Gilshenan was angry with the Appellant because things were being missed in the workplace. Ms Gilshenan said to Ms Hopkinson that perhaps the Appellant needed to take more care of the "nuts and bolts" in the job and that she might benefit from some more retraining. Having said that, Ms Hopkinson said she had not believed this to be bullying by Ms Gilshenan towards the Appellant.  Ms Hopkinson believed that when she left Bundaberg she had nurtured to some extent the relationship between the Appellant and Mr Mann and she believed that the outlook in that area was looking positive.17 [41] I have not found that there is any substantial evidence adduced in this hearing to suggest that Ms Gilshenan had anything other than a normal view of the Appellant. She was not reluctant in praising the Appellant when warranted. If it was the case that she expressed frustration and/or anger towards the Appellant when speaking with Ms Hopkinson when 16 Exhibit 18. 17 T3-76. -- 9 of 24 -- 10 elements of the job were not completed by the Appellant, that does not constitute bullying as such. When teased out, Ms Hopkinson said Ms Gilshenan's comments in this case centred upon the Appellant looking after the "nuts and bolts" of her duties and that the Appellant might need some retraining. In my view, this constitutes nothing more than realistic commentary made in many workplaces concerning the work performance of employees generally. Both Ms Hopkinson and Ms Gilshenan held a role which required both to ensure that the work performed by the Appellant was up to standard. [42] In reality, the resolution posed by Ms Gilshenan was normal in the circumstances and does not constitute bullying. The Appellant's allegations against Mr Mann [43] The Appellant referred to an email from Mr Mann to Ms Gilshenan on 4 May 2011. Mr Mann said that the purpose of the email was to establish a pattern for working in his new role. In that email, the following, inter alia, was stated: As discussed by phone, I was disappointed with the performance of Mel Bauer at the Torquay Hotel yesterday, 3/5/11…18 [44] Various references were made to "fridges not being cleaned; handprints and fridge mould over the front and inside of the doors and fridge strips were lacking". The email continued: Lisa, I am aware that I am a newcomer to the BU, and I'm not fully aware of all the "ins and outs" of the merchie role as yet, but I do require some support because of this fact by my merchie. Having to follow up issues like these are a time-waster for me where time is critical whilst learning my role. I was satisfied with the outcome of our discussion, and Mel admitted that she had dropped the ball. I told her that it is critical that we function as a team. I will be calling her out on anything that I need clarification on and I hope that she will have the courtesy to support me in my transition to this new role. 19 [45] The Appellant expressed concerns about the email and claimed that Mr Mann would have "no insight whatsoever" in the duties she had been performing as he was new to the job. [46] Mr Mann said that, at that time, he had with him Mr Bainton who had worked with him in "the trade" previously. Mr Mann said that Mr Bainton was able to make reference to matters which might, or did need attention. The overall view adopted was that some matters were not "up to scratch". [47] The Appellant surmises from this that "it would be unlikely that he (Mr Bainton) would advise Mr Mann that it wasn't up to scratch and that he should follow up on it". [48] It should be noted that Mr Bainton was not called to give evidence in these proceedings before the Commission. [49] Mr Mann was questioned by the Appellant as to whether the better approach would have been for him to deal directly with her regarding these concerns. He explained that after 18 Exhibit 32. 19 Ibid. -- 10 of 24 -- 11 sending that email he had been advised by management that the direct course of communication with the Appellant would have been preferable. [50] Mr Mann said that, after the event, he had a conversation with the Appellant and he believed the matter had satisfactorily ended there. [51] The Appellant did not accept that explanation, stating that if Mr Mann had spoken to Ms Gilshenan first then why did he go ahead and send the email. Mr Mann said that the Appellant then telephoned him later that evening apologising for the state of the fridges and saying that she had not found it easy talking in front of Mr Bainton.20 [52] Mr Mann questioned the Appellant's version of events saying: That's not the sequence of events that I remember and being my first week in the role, there's absolutely no way that I'd be calling you out on your performance because I had no standard to work to at that time.21 [53] In this instance, I have formed the view (as had Creative) that it would have been better had Mr Mann first raised the issues with the Appellant, especially so when he was making comment on the Appellant's work. However, this matter seemed to be resolved between the parties at that time. It occurred in 2011 and there were no further incidents of this kind complained of by the Appellant, until issues arose concerning the merchandising shed. [54] I have not seen this particular matter as one of bullying and harassment. Creative acted in a sensible manner when dealing with this issue. The Appellant's allegations against Mr Mann are not substantiated on this particular issue. Appellant's allegations concerning Mr Mann's comments on the Appellant's appearance. [55] Concerning the Appellant's claim that Mr Mann had commented upon her appearance (as referenced in the first stressor of paragraph [11] of this decision). The Appellant did not put any questions concerning the point to Mr Mann. That claim is unsubstantiated. Allegations that Ms Gilshenan asked Ms Hopkinson to dismiss the Appellant from employment and pressure from Ms Gilshenan to get her to leave her employment [56] The evidence around this matter related to a conversation which the Appellant says she had with Ms Blanch. As this witness was not called to give evidence and the claim was denied by Ms Gilshenan and Ms Hopkinson, I am unable to find this claim substantiated by the Appellant. [57] Overall, from the evidence before the Commission concerning this time period, I have been unable to accept that any of the instances which had arisen, involving Mr Mann or Ms Gilshenan, constituted bullying or harassment. Rather, the types of conversations mentioned above show little more than the type of matters generally discussed in any workplace. Ultimately if mistakes had been made by the Appellant, there appears to have 20 T4-71. 21 T4-51. -- 11 of 24 -- 12 been no adverse action taken against her, but rather an acceptance that she may need more re-training. [58] All allegations made against Mr Mann and Ms Gilshenan on this point have not been substantiated. Allegations that Mr Mann and Ms Gilshenan changed the locks and restricted the Appellant's access to the merchandising shed [59] A storage shed held all merchandise material used for sales/promotional activities. An issue arose in May 2012 where the Appellant said that she had gone to the merchandising shed and noticed that there were some Johnnie Walker kits that were due to be put in various venues. Her evidence was that she had thought that she would be helping all by putting the kits out that day. The Appellant's evidence was that she took approximately six boxes out of the 12 as she was only going to four venues and with the remaining kits, she would disperse them across the smaller detached venues.22 [60] Later that day, the Appellant said that she had heard from Ms Hopkinson that Mr Mann was upset that she had taken all of the kits. [61] Mr Mann's evidence was that when visiting the merchandising shed to get the Johnnie Walker promotional material, every box was missing. He said that he tried unsuccessfully to call the Appellant a number of times. Having left a message for the Appellant to return his call, he contacted Ms Gilshenan who then contacted Ms Hopkinson in order to ensure that the missing stock was returned.23 [62] Mr Mann returned to the shed sometime in the afternoon and upon entering the shed he saw that the merchandise was "sort of strewn in the … doorway". His evidence was that as the Appellant had taken the Johnnie Walker material, he was unable to complete his tasks on that day. This was exacerbated by the fact that he had made plans with the various venues and others which he could not now complete. [63] Ms Hopkinson's evidence corroborated that of Mr Mann's in that she recalled him saying that all the kits had gone and she had contacted the Appellant requesting that she return the merchandise. [64] A picture of the state of the shed was taken by Mr Mann and sent through to Ms Hopkinson. [65] Ms Hopkinson forwarded the picture to the Appellant. The Appellant's response to seeing the photo was: Mmmmmm, very interesting. Funny how the two boxes I opened to check the pos [sic] inside the boxes - haven't lost any of their contents when I "threw them" into the shed. Great re-organization of the boxes Col! On the upside from this picture you will see that there isn't too much room in this untidy shed to put anything. The edge of that corflute is right on the edge of the concrete as you open the door.24 22 T2-24. 23 T4-37. 24 Exhibit 8. -- 12 of 24 -- 13 [66] The copy of the photo taken of the shed showed boxes left in an disorderly fashion. Boxes were left dangling off other boxes and in all, it could rightly be described as a "mess". [67] After this event, the Appellant tape recorded a conversation with Mr Mann without his knowledge. There is difficulty regarding the degree of credence to be given to the content of this taped conversation, in that it gave an unfair advantage to the Appellant in directing the flow of the conversation. [68] Within this context, all that can be taken from the conversation between the Appellant and Mr Mann was as follows:  Mr Mann conceded that both he and the Appellant were responsible for their own behaviour;  Mr Mann was always going to change the locks in the merchandising shed prior to the event;  The Appellant refused the offer of a key from Mr Mann on a number of occasions;  The Appellant said that she needed a key and was aware that she could get a key from the site manager;  That the Appellant wanted to take someone with her into the shed because she wanted to be careful with stock issues;  Noted is Mr Mann's agreement to this proposition; and  Mr Mann again offered a key to the Appellant as he was going on holidays, to which the Appellant responded, "I don't want that". [69] My observation from hearing the taped recording was that the matters between the parties appeared to have been resolved. [70] The Appellant said she had been distressed that she had been accused of throwing the boxes around the merchandising shed and also that she had later been locked out of the sheds. Mr Mann believed that this matter resolved itself in a satisfactory manner. However, the Appellant asked the following question: But you're stating that when I entered the shed I was irrational and abusive and that my question to you is can you understand why I would have been like that? 25 [71] Mr Mann responded: My answer was no.26 25 T4-59. 26 Ibid. -- 13 of 24 -- 14 [72] The Commission asked the Appellant whether she actually enquired of Mr Mann why he had changed the locks, to which she replied that she had asked him and he said it was always his intention to change the locks because there was more than one merchandiser using the sheds.27 [73] Mr Mann's evidence replicated the answer he provided the Appellant. Mr Mann stated that the decision to change the locks had not been made quickly; there was more than one merchandiser using the sheds and he needed to be sure that each merchandiser was only taking stock which belonged to them. Given that there were a number of people who had access to the shed, Mr Mann wanted to ensure the safety of the goods contained within the shed.28 [74] Concerning the Appellant's entry into the merchandising shed when she required stock, Mr Mann told her that he was leaving a key with the site manager so she could gain access to the shed when needed. Mr Mann said that he had also offered the Appellant a key on about ten occasions and on each occasion, she had rejected the offer. [75] Mr Mann also asked the Appellant if she wanted the key to the shed while he was on holidays. The Appellant referred to notes she had taken of this at that time. Those notes showed comments such as "don't trust him" and "he'll probably accuse me of stealing again"29. [76] Mr Mann was adamant that he had never accused the Appellant of stealing merchandise from the shed.30 There is no evidence of a complaint of stealing by the Appellant being made to management of Creative by Mr Mann. This evidence is confirmed by Ms Hopkinson. [77] The Appellant said she had wished to take the matter further and to make a complaint against Mr Mann, but Ms Hopkinson would not accept the complaint as she did not wish to cause any difficulties with Diageo. [78] Ms Hopkinson was not Cross-Examined on this point, and the issue of the Appellant "wishing to take the matter further" can be taken no further as the Appellant specifically included Ms Hopkinson in that claim. [79] I have not accepted that Mr Mann or Ms Hopkinson acted inappropriately with regard to the issue of the keys to the merchandising shed. [80] Overall, an event had occurred in the shed with boxes being randomly left on the floor; the Appellant was not accused of stealing; the Appellant was offered a solution to gaining entry to the shed; and in my view, the problems referred to by the Appellant on this issue were of her own making. I have not accepted that the Appellant was prohibited from performing her duties for a period of time because of Mr Mann's actions - rather in my view, her refusal to access the key to the shed was unreasonable. 27 T2-42. 28 T4-46. 29 Exhibit 12. 30 T4-62. -- 14 of 24 -- 15 [81] As well, the Regulator submits that it would have been Mr Mann as BDM, to whom vendors would have complained had merchandising stock not been made available to them because of insufficient stock in the merchandising shed. This did not occur. [82] Mr Mann's rationale for changing the locks on the shed was reasonable in all the circumstances and the Appellant's complaints regarding this matter have not been substantiated. From the 22 October 2012, I attempted several times to make contact verbally as I was in need of merchandising stock. He refused to return any of my voice messages. It came to my attention that he had been telling several retailers that he was "Going to get the bitch fired". [83] The issue of the Appellant's need to obtain merchandising stock from the merchandising shed has previously been considered. [84] Concerning the allegation that Mr Mann had been talking to some retailers and that he was "going to get that bitch fired", is not supported by any evidence. In cross-examining Ms Hopkinson, the Appellant did not raise this specific incident with her. This matter can be taken no further. [85] Regarding the second limb to this stressor, on Monday 19 November 2012, the Appellant had gone to meet Mr Mann at the merchandising shed. He had not turned up and she claims that she was denied accessing merchandising material from the shed, as been previously mentioned. [86] Mr Mann's evidence was that he was particularly busy on Mondays and this coincided with the fact that Monday was the only day the Appellant worked. [87] He explained that: Meetings - a merching meeting is not a prerequisite. The - there was only times you had to meet if information had to be passed on or, in this case, if, if Melissa had to pick up something. But always over - over [indistinct] the whole thing is if Melissa ever needed access to the shed, she knew where the key was - which was - was at the - at the venue, which had it been kept at the venue prior to me starting and I believe it was still probably kept at the venue and that's where they are now.31 [88] I have accepted Mr Mann's evidence that meeting on a Monday with the Appellant was always difficult and that knowing this, the evidence more than suggests to me that the Appellant was not prepared to make the process, regarding access to the key to the merchandising shed, work effectively. As previously stated, the Appellant's unwillingness to accept the key to the merchandising shed from Mr Mann or access the key from the site manager's office, and her frustration concerning the first instance when she could not gain entry to the shed, appeared to permeate her ongoing attitude towards Mr Mann where she was not prepared to let the matter rest. Any claims in this regard by the Appellant have not been substantiated. 31 T4-49, 50. -- 15 of 24 -- 16 Allegations concerning the Appellant's Line Manager, Ms Hopkinson and Creative Activation and their lack of responses or attempts to resolve the Appellant's issues [89] Sometime on or around 4 June 2012, the Appellant held a conversation with Ms Hopkinson concerning her complaints against Mr Mann and Ms Gilshenan. [90] The Appellant believed that Ms Hopkinson would "escalate" her concerns with Mr Mann concerning the merchandising shed and when this did not happen, it had caused the Appellant distress. Ms Hopkinson was aware that arrangements were in place with Mr Mann with regard to the locks to the merchandising shed, so she remained unaware as to what other matters required escalation. [91] On 4 June 2012, the Appellant taped a telephone conversation with Ms Hopkinson without her knowledge. She claims this was an example of her following Creative's protocol and Code of Conduct and she was merely proceeding to the next person in the management structure to discuss her concerns. This, in my view, is a disingenuous statement. [92] That assertion is not accepted as a legitimate reason for taping this telephone conversation. I adopt the reasoning previously given regarding the Appellant's tape recording of Mr Mann, without his knowledge. The Appellant made reference to the merchandising shed incident and in the course of her discussion, Ms Hopkinson responded: Ahhh, this is getting kids stuff and it's like Chinese whispers.32 [93] Ms Hopkinson reconfirmed that no one was accusing anyone for the state of the merchandising shed as it was a fact that other people used that shed as well. Discussions were held with regard to Ms Gilshenan and Ms Hopkinson advised the Appellant that she wanted to be sure that Ms Gilshenan was not doing a "squeeze out" and thought that events may have been driven by Ms Gilshenan. Ms Hopkinson advised the Appellant to keep her own records of events. [94] In my view, there was nothing definitive from this conversation save to say, that Ms Hopkinson was treating the conversation within the context of information being provided through "Chinese whispers". [95] Around this time, while the Appellant said she had advised Ms Hopkinson via text message on 18 June 2012, that she was raising a formal complaint about Mr Mann, there was no evidence to that effect produced by the Appellant. The Appellant was asked in Cross-Examination whether she had kept the text message she had sent to Ms Hopkinson and the Appellant said she had wished she had done so but hadn't.33 The Appellant then said that the reason she had not kept the message was that it had been sent from a "personal phone". [96] Given that the Appellant said she had sent a text message to Ms Hopkinson on 18 June 2012, regarding her concerns the Regulator submitted that is was strange that 32 Exhibit 30. 33 T1-75. -- 16 of 24 -- 17 upon her visit to Dr Rizzo on 19 June 2012 (the following day), she reported to Dr Rizzo that there were no further problems with her colleagues and hoped they did not recur.34 [97] Ms Hopkinson denied that she had ever received complaints from the Appellant that she had been bullied and/or harassed by Mr Mann or Ms Gilshenan. Overall, there is no evidence of any complaints being made by the Appellant against Mr Mann or Ms Gilshenan. Ms Hopkinson considered that any complaints made by Mr Mann or Ms Gilshenan about the Appellant's work performance were justified and reasonable. There has been no inaction by Ms Hopkinson that in any way contributed to the Appellant's injury. [98] There is no substance in the claims being made by the Appellant with regard to this situation. Other Witnesses Mr Mann - Further evidence [99] Mr Mann's evidence was that he had become aware of rumours being spread about him concerning a sexual harassment claim he was purported to be involved with in other employment and that he had only obtained the position of BDM with Diageo because of his "connections". [100] His evidence was that Ms Blanch had contacted him to say that she had discussions with the Appellant and her husband and that they were going to make a complaint against him on an "anonymous line" concerning the alleged bullying and harassment by Mr Mann and Ms Gilshenan towards the Appellant. [101] Mr Mann said that he was very upset about the rumour and was adamant that he had never been involved in any sexual harassment case.35 Mr Mann subsequently made a formal complaint against the Appellant with regard to this matter. Mr Richard Hobby [102] Mr Hobby was employed by Creative as Client Service Director. He was the key point of contact between Diageo and Creative. [103] In an unrelated complaint, the Appellant asked him to provide her with all complaints she had made to Ms Hopkinson about Mr Mann or Ms Gilshenan. [104] Mr Hobby's evidence was that, in his search he was unable to find any documentation that any formal complaints had been made by the Appellant. He agreed that there had been a discussion between the Appellant and Ms Hopkinson concerning her relationship with Mr Mann and Ms Gilshenan. However, there was no formal complaint ever made. He stated that had a complaint been made by the Appellant, it would have been registered in Creative's system. This had not occurred. 34 Exhibit 19. 35 T4-50. -- 17 of 24 -- 18 [105] Mr Hobby's evidence was that he became aware on 15 November 2012, that Mr Bauer had made a complaint on the Diageo SpeakUp Line. [106] Mr Hobby made contact with the Appellant for the purpose of following up issues concerning the complaint. Mr Hobby said that at the time of speaking to the Appellant, he had made notes of that conversation.36 The notes contain the following entries: Mel's version of events is that she had indeed mentioned those two items to Tracey [blanch] namely, that Colin [Mann] was involved in a sexual harassment case when he was working at the Bundaberg distillery. That Colin only got the BDM role because of his sister in-law's friendship with the hiring manager, Lisa Gilshenan. … Melissa's explanation was that the sexual harassment details had be relayed to her by two Diageo employees, Mark Craig and Shaun Goode and she had assumed that it was factual. 37 [107] The Appellant believed that the complaint made by Mr Mann was a form of "payback" in relation to the bullying and harassment she had suffered over recent months. [108] Mr Hobby on 4 December 2012, determined to commence disciplinary proceedings against the Appellant and provided the Appellant with an opportunity to respond to Creative's show-cause letter, concerning Mr Mann's complaints. In his communication with the Appellant he noted her acknowledgment that she had admitted to advising others of this rumour. Mr Hobby said that while making this admission, the Appellant said she had "not shared the information widely", but that she thought it was known to others. [109] Mr Hobby stated that it was Creative's opinion that the Appellant had admitted to making "slanderous and defamatory comments about a Creative client's employee with whom she was required to work". His observation was that he was unable to see how she could work with Mr Mann again. [110] Mr Hobby advised the Appellant that an opportunity would be provided to her to discuss the matter on 6 December 2012. The Appellant was advised that she could be accompanied by a support person. Mr Bevin Bauer [111] Mr Bauer's evidence was largely based on hearsay. The only reason for making reference to this type of evidence adduced was that the Appellant had agreed that she had been party to spreading a rumour about Mr Mann regarding his alleged involvement in a sexual harassment case with another employer. The rumour continued to the effect that he was successful in securing the BDM role with Creative because his sister in-law was a friend of Ms Gilshenan. The Appellant ultimately admitted that she had told Ms Blanch (who as previously mentioned did not give evidence), words to that effect. [112] Mr Bauer's evidence was that on 7 November 2012, he called the Diageo SpeakUp Line to complain about Mr Mann and Ms Gilshenan on behalf of the Appellant. He nominated witnesses to the alleged bullying and harassment who were never called to give evidence and of one witness, the surname was unknown. He acknowledged that his evidence was based on hearsay. 36 Exhibit 33. 37 T4-4. -- 18 of 24 -- 19 Ms Kate Madden (nee Patterson) [113] Of further note is that Creative ultimately conducted its own investigation into the allegations made by the Appellant in this matter. Creative arranged for Eyes Open Corporate Security, to undertake an investigation into the complaints made by the Appellant against Ms Gilshenan and Mr Mann. The investigation was conducted by Ms Kate Madden (nee Patterson) in November 2012. The investigation report was tendered in proceedings38 and Ms Madden was called to give evidence by the Regulator. [114] All relevant persons were interviewed with regard to the investigation. The findings made were as follows:  No evidence of any COB breach.  No evidence that Ms Gilshenan or Mr Mann were unfairly targeting Mrs Bauer through addressing her performance.  No accusations of stealing had been brought [against] Ms Bauer.  No evidence that the locks to the shed were changed to prevent Ms Bauer from doing her job and that it was common for merchandisers to not have keys to the shed.  Ms Bauer admitted she had told Ms Blanch about Mr Man's sexual harassment case and that Mr Mann had only got the job because his sister in-law was friends with Ms Gilshenan.39 Consideration of the evidence and authorities [115] As a consequence of the Appellant being unsure as to how to construct her final submissions, with the agreement of both parties, the Regulator made its submissions first. [116] The Regulator accepts that the Appellant sustained a personal injury of a psychiatric/psychological injury on 6 December 2012. [117] The Regulator contends, however, that the Appellant has not sustained a psychiatric/ psychological injury in accordance with the provisions of the Act because: (a) The Appellant's personal injury has not arisen out of or in the course of her employment with Creative; (b) The Appellant's employment is not a significant contributing factor to her injury; and/or (c) If the Appellant has suffered a personal injury, which arose out of, or in the course of her employment and the Appellant's employment is a significant contributing factor to her injury, then the Appellant's psychiatric or psychological disorder has arisen out of, or in the course of, reasonable management action taken in a reasonable way by Creative in connection with the Appellant's employment. The Regulator contends that the show-cause letter dated 4 December 2012 and the 38 Exhibit 38. 39 Regulator's submissions, pp 23-24, [99]. -- 19 of 24 -- 20 associated investigation process was reasonable management action taken in a reasonable way; (d) The Appellant's psychological/psychiatric injury arose out of that reasonable management action; and (e) The Appellant's injury is therefore excluded by the reasonable management action provisions of the Act. Is the personal injury one arising out of, or in the course of employment and is employment a significant contributing factor to the injury? [118] In Badawi v Nexon Asia Pacific Pty Ltd, the Court of Appeal stated: 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. The phrase involves causative element and is to be inferred from the facts as a matter of common sense. 40 In the course of employment [119] In Hatzimanolis v A.N.I Corporation Ltd, Mason J.J, Deane, Dawson and McHugh JJ, in a joint judgment said: In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the particular occasion out of which the injury to the employee has arisen. 41 Significant contributing factor [120] In Newberry v Suncorp Metway Insurance Ltd, Kean JA, (as His Honour then was) stated: Further, there is no warrant in the language of s. 32 of the WCRA for reading the words "if the employment is a significant contributing factor to the injury" as lessening the stringency of the requirement that the injury "arises out of the employment" as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words "if the employment is a significant contributing factor to the injury" are intended to be a requirement of connection between employment and the injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former. 42 Employment being a significant contributing factor [121] In Croning v Workers' Compensation Board of Queensland, President de Jersey held that the employment needs to be the "real effective cause" of the injury and not merely the setting or background in which the injury occurs: The Magistrate found that the appellant's employment was not a significant contributing factor to the injury. He found, rather, that the depression was induced by the appellant's own unpreparedness to work within the structure of "standard work practices" operating within the TAFE colleges…43 40 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324. 41 Hatzimanolis v A.N.I Corporation Ltd (1992) 173 CLR 437, p 484. 42 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, p 10, [42]. 43 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100. -- 20 of 24 -- 21 [122] In Misevski v Q-COMP, President Hall found that in circumstances where allegations were found to be without substance, one consequence is that those transactions cannot have contributed to the development of the worker's psychological condition, stating that: A transaction which did not occur cannot have contributed to the development of anything…44 Did the injury arise out of, or in the course of, reasonable management action? [123] In Avis v WorkCover Queensland,45 the Industrial Court held that the phrase "arising out of" involves a causal or consequential relationship between the management action and the injury, but does not require a direct or proximate relationship. [124] In Parker v Q-COMP,46 President Hall observed that a psychiatric or psychological disorder which is causally traceable to reasonable management action reasonably taken is excluded by s 32(5) and that management action often involves mediating between workers and otherwise adjusting their relationships. Decisions regarding claimed Stressors Bullying by Ms Gilshenan/Mr Mann [125] It is accepted that the thrust of the Appellant's claims centred upon Ms Gilshenan and Mr Mann and their alleged bullying and harassment of her. However, both those persons were not the Appellant's managers but rather the Appellant's manager/employer was Ms Hopkinson. It was understood by the Appellant that the correct manager, in the event that the Appellant had complaints against Mr Mann and Ms Gilshenan was to raise those matters with Ms Hopkinson. Complaints not actioned by Ms Hopkinson/Creative [126] The Regulator submits that any alleged inaction by Ms Hopkinson concerning the Appellant's complaints against Ms Gilshenan and Mr Mann, constituted reasonable management action. [127] The taped telephone conversation with Ms Hopkinson appeared to be the occasion upon which the Appellant had complained. However, in that taped conversation the Appellant was mainly talking about issues concerning the merchandising shed. Nowhere in the tape-recorded conversation did the Appellant specifically complain of bullying and harassment by Ms Gilshenan and Mr Mann and particular instances of such. I have accepted the Regulator's claim that the Appellant is unable to satisfy the onus of proof to the effect that the management action was unreasonable in those circumstances. 44 Misevski v Q-COMP C/2009/29, at para [30]. 45 Avis v WorkCover Queensland [2000] QIC 67. 46 Parker v Q-COMP (2007) 185 QGIG 269 at page 273. -- 21 of 24 -- 22 Additional causative stressors [128] In Comcare v Martin47 the issue of management action not necessarily being the sole cause of an injury was discussed. It was accepted that there could be multiple causes of which some may be related to other aspects of the worker's employment. What is required is that the taking of management action is an event without which the employee's ailment or aggravation would not have been an injury. [129] The following chronology as to other causative stressors, was submitted by the Regulator (and summarised by the Commission below):  That a contributing factor to the Appellant's injury was the show-cause notice she received on 4 December 2018 by Mr Hobby.48  Mr Hobby had raised the issue of the Appellant spreading rumours of Mr Mann's involvement in a sexual harassment claim and how he had gained his position with Diageo.  Ms Madden had spoken to Mr Hobby and said that the Appellant had regretted telling Ms Blanch about the alleged infractions of Mr Mann.  The Appellant received a show-cause letter on 4 December 2012, where Mr Hobby detailed the essence of the alleged claims against Mr Mann.  Reference was also made by Mr Hobby in the investigation undertaken concerning the SpeakUp complaint where the Appellant's husband had claimed that the Appellant was bullied and harassed by Ms Gilshenan and Mr Mann.  As a result of the investigation, it was found that the allegations had not been substantiated.  In Mr Hobby's correspondence to the Appellant, Mr Hobby informed the Appellant that as she had admitted that she behaved in an inappropriate manner, he viewed this as serious misconduct sufficient for Creative to remove her from the Diageo Project.  The Appellant requested from Mr Hobby, her full employment records and that she wished to reschedule the 6 December 2012 meeting.  Mr Hobby advised on 5 December 2012, that the meeting scheduled for 6 December 2012 would not occur as per her request.  On 6 December 2012, the Appellant saw Dr Rizzo, and that date was accepted by both parties as the date of the Appellant's injury. [130] The Commission accepts that chronology as an accurate account of other causative stressors as they transpired. 47 Comcare v Martin [2016] HCA 43 48 Exhibit 23. -- 22 of 24 -- 23 NOTE: The Doctor's consultation notes make no reference to the Appellant receiving a show-cause notice concerning Mr Mann's complaint against her, two days prior to that appointment. Rather, she mentions that a colleague claimed that she [the Appellant] had slandered him and reiterated that it was the same colleague involved in the shed issue where she said she was locked out from the shed and unable to perform her work. 49 [131] On 7 December 2012, Creative determined that the Appellant would not be offered any further employment with the Diageo Project which at the time constituted eight hours a week on average. Also stated was that the Appellant's work on other company projects would not be affected and that her work would continue as usual. Conclusion [132] Having considered the Appellant's allegations in the nominated stressors, I have been unable to find any reliable evidence to support her claims. [133] As earlier stated, it is accepted that since 2010-2011 through to 6 December 2012, witnesses could not easily recall discussions referenced by the Appellant, in a hearing that was held some six to eight years later. There has been a proliferation of references made by the Appellant to conversations said to have occurred at the workplace between the her and other persons. Much of those alleged conversations could not be considered fairly by the Commission as they fell into the category of hearsay evidence. References were made to a number of people who were simply not called to give evidence by the Appellant. [134] Of the documentary material provided, there is no evidence of any formal complaints being made to Ms Hopkinson/Creative concerning both Mr Mann and Ms Gilshenan. [135] For the purposes of s 32(5), "management" consisted of Ms Hopkinson/Creative. Ms Gilshenan was not employed by the Appellant's employer (Creative), nor was Mr Mann. The evidence of Ms Hopkinson is accepted in that she had no formal complaint from the Appellant to which she was required to respond. However, when \\ issues arose in conversation with the Appellant, Ms Hopkinson, in my view, dealt with those matters in a fair and reasonable manner. [136] Additionally, given the incomplete and incorrect history provided to Dr Rizzo, and the timing of the Appellant's decompensation, the Regulator submits that the Commission should make a finding of fact that the Appellant's injury arose out of the issuing of the show-cause notice and that, in circumstances where the Appellant had admitted to making false allegations against Mr Mann, this management action was reasonable and taken in a reasonable way. [137] I accept that those submissions correctly identify the nature of Dr Rizzo’s medical records tendered and the fact that the Appellant’s injury arose as a consequence of the employer issuing a show-cause notice in circumstances where the Appellant had admitted to making false allegations against Mr Mann. In the course of doing that, I have determined that the employer was taking reasonable management action taken in a reasonable way. 49 Exhibit 19. -- 23 of 24 -- 24 [138] It is determined that the injury is removed from the definition of s 32(1) of the Act by virtue of s 32(5) the Act. [139] For the above reasons, I dismiss the Appeal. The question of costs is reserved. 1. The Appeal is dismissed. 2. The question of costs is reserved. -- 24 of 24 --