Doman v Workers' Compensation Regulator [2017] QIRC 99

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Doman v Workers' Compensation Regulator [2017] QIRC 099 PARTIES: (Adam Sidney Doman) (appellant) v Workers' Compensation Regulator (respondent) CASE NO: WC/2016/12 PROCEEDING: Appeal against decision DELIVERED ON: 31 October 2017 HEARING DATEs: HEARD AT: 31 July – 2 August 2017 Cairns District Court MEMBER: The Hon L. Kaufman, Deputy President ORDERS : 1. Appeal dismissed CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST A DECISION – where the regulator had rejected the application for compensation on grounds that s 32(5) excluded the psychiatric condition from the definition of 'injury' within s 32 – whether management action was reasonable and taken in a reasonable way – onus of proof. CASES: Carlton v Blackwood [2017] ICQ 001 Davis v Blackwood (Workers' Compensation Regulator) [2014] ICQ 9 Workers Compensation Rehabilitation Act 2003 s 32 APPEARANCES: Mr A. Doman in person Mr S. McLeod, of counsel, directly instructed by the Workers' Compensation Regulator -- 1 of 18 -- 2 Reasons for Decision [1] Mr Adam Sydney Doman appeals the decision of the Workers' Compensation Regulator confirming the decision of BHP Billiton Queensland Workers' Compensation to reject his application for compensation. The appellant made his application for compensation to WorkCover on 17 November 2014 citing ‘anxiety/depression/stress/insomnia’ which he alleged occurred in the course of his duties as an operator (large truck driver) with BHP Billiton at the BMA Cavil Ridge Coal mine. [2] BHP (as a self-insurer) investigated the appellant's application and concluded in its decision of 16 January 2015 that “the issues it found to be substantiated and contributory to your injury involved management action which was both reasonable and taken in a reasonable way”. [3] That appellant sought a review of the decision of BHP by the regulator which, upon considering submissions from the appellant, overturned the decision of 16 January 2015 and returned the matter to BHP with directions. The directions included the obtaining of an independent examination which was provided by a psychiatrist, Dr Martin Nothling. BHP again rejected the application on the basis that the management action was reasonable and taken in a reasonable way. [4] The appellant again sought a review by the regulator which, in its decision of 17 December 2015, concluded that the injury arose out of reasonable management action taken in a reasonable way. On 13 January 2016 the appellant appealed to the Commission. Preliminary [5] The regulator, in its written submissions, sought that the appeal be dismissed only on the basis that the injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the appellant's employment, and was thereby excluded from the definition of "injury" by operation of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003. Accordingly, I infer that the regulator concedes that Mr Doman was a worker; that he suffered a personal injury, being a psychiatric or psychological disorder; that the injury arose out of or in the course of his employment and that the employment was the major significant contributing factor to the injury. In my view, there is sufficient evidence to enable me to make those findings. I will proceed on that basis. [6] Accordingly, the issue to be decided is whether Mr Doman's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by BHP in connection with his employment. -- 2 of 18 -- 3 Background [7] Mr Doman had been employed by BHP since October 2013. On 16 November 2014 he decompensated. A medical certificate obtained the following day states that he was suffering from depression and severe insomnia. [8] The appellant's statement of facts and contentions reveals that he bases his case on three workplace stressors as being the cause of his psychological injury: He alleges that he "started to receive unjust and illegal treatment from individuals between May 2014 and November 2014" with three "distinct areas of mismanagement contributing to [his] injury": He witnessed a reportable incident (the incident on the ROM) that directly broke a lifesaving rule. He reported it to his immediate supervisor Tim Brady, but was denied writing a statement at the time of the incident. Subsequently the internal investigation was flawed; Segregation, bullying and harassment started to manifest itself from the moment he reported the incident and continued until his illness became unbearable on 15 November 2014, when he decompensated; On 15 November 2015 an allegation was made by his supervisor that Mr Doman had broken a lifesaving rule whilst he was operating a dump truck. Mr Doman contends that the 15 November incident was fabricated and flawed and a deliberate attempt to have him removed from his employment. [It is likely that the incident occurred on 16, not 15, November as Mr Doman alleged, but nothing turns on this]. [9] As Mr S McLeod, of counsel, who appeared for the regulator noted, the case an appellant puts is based on, and confined to, the matters contained in the statement of facts and contentions.1 The incident on the ROM [10] The evidence is unclear as to whether this event occurred on the 26 or 27 June 2014, but again, nothing turns on this. Mr Doman saw, what he considered to be, a serious reportable incident that directly broke a lifesaving rule when he was working on the ROM (Run-of-mine). The ROM is the operational part of the mine. As I understand it, lifesaving rules form part of the operating procedures at the mine; they are rules designed to ensure that work is conducted in the safest possible manner. As one witness described it, lifesaving rules are put in place to stop – or have been put in place in the past when people have hurt themselves very badly or 1 Carlton v Blackwood [2017] ICQ 001 at [18]. -- 3 of 18 -- 4 fatalities have happened.2 A breach of such a rule requires that the incident be reported to relevant senior personnel. [11] It is not necessary to describe the incident in detail, because the appellant does not contend that it was the incident per se that contributed to his injury; rather it was the actions of management subsequent to his reporting the incident. [12] Mr McLeod succinctly summarized the incident: "The appellant described the incident on the ROM as follows: (a) two dump trucks fully loaded, weighing 480 tonne each, were left fundamentally unstable on the ROM, the appellant was in the third truck behind the two unmanned trucks.3 (b) a ROM is where coal is unloaded for processing; (c) trucks are parked on the ROM, and wait their turn to go and dump coal; (d) when the appellant arrived at the ROM there was a shift change being undertaken between A-crew and C-crew; (e) the appellant was part of C-crew; (f) there were three operators to replace A-crew; (g) however, there were four A-crew operators who were leaving the shift and proceeding to jump in the car; (h) consequently, that left one truck unattended; (i) the unattended truck was the first truck in line and oncoming trucks coming up the ramp to the ROM would need to pass this truck and get positive communication to pass; and (j) no positive communication with the truck could be obtained because nobody was in the truck and it was abandoned.4 Lisa McCord, a step up supervisor, subsequently brought up to the ROM two operators to replace those truck operators because A-crew operators needed to be replaced.5 It was the appellant’s understanding that one of the two operators [was] to be assigned to the empty dump truck. However, the appellant stated that the two operators replaced the operators of A-crew and two empty dump trucks remained.6 2 T 3-31 lines 40-45. 3 T 1-51, line 32. 4 T 1-6 to T 1-7. 5 T 1-8. 6 T 1-8, lines 14-17. -- 4 of 18 -- 5 The appellant agreed in cross examination that the crux of his concerns on the day [was] twofold, first, there was no V drain and, secondly, the operators not being taken away without swapping out with another operator to get in.7 That said, the appellant gave the following account: “Now, those two trucks happened to be the two first trucks that other trucks would see coming up the ramp who could not get positive communication with these trucks. I was calling these trucks past, giving them positive communication, saying ‘those trucks are unmanned, you’re right to come past. I am in the next truck. You’re right to pass.’”8 The appellant says that when he jumped into his truck he was unaware at that time that the first truck had no operator.9" [13] The gravamen of the appellant's concern is that he believed the two unmanned trucks were in a fundamentally unstable condition. As I understand it, if a dump truck, or indeed any large vehicle, is to be left unattended it must be placed so that should all of its braking or restraint systems fail, it would not be able to roll forwards or backwards. This is usually achieved by parking the vehicle in what is known as a "V drain" whereby the sides of the "V" prevent the vehicle rolling. Mr Doman contends that the two trucks were not parked in a V drain and were, therefore, not fundamentally stable. [14] In the normal course of events, the relief driver arrives at the truck in order to "hot seat". This entails the driver finishing his shift exiting the cab of the vehicle and the relieving driver immediately taking over. [15] Mr Doman contends that as there were no relieving drivers for the two trucks, which were not fundamentally stable, a lifesaving rule had been broken, thereby constituting a reportable incident. [16] Mr Doman witnessed this incident at about 6.00 am and reported it to his supervisor, Tim Brady, at about 8.30 am. [17] Despite forming the belief that there was a potentially fatal situation the appellant took no immediate action because: “I was afraid to stop production and I wasn’t sure – 100 percent sure. I thought maybe … they had changed the rules … I questioned myself and I decided the best thing to do would be to call those trucks past.”10 [18] It is what happened after he reported the incident to his supervisor, Mr Tim Brady, that Mr Doman contends constitutes management action that was neither reasonable nor taken in a reasonable way. 7 T 1-75, lines 8-10. 8 T 1-10, lines 17-21. 9 T 1-10, lines 23-39 and T 1-51. 10 T 1-63, lines 40-46. -- 5 of 18 -- 6 [19] Mr Doman said that he telephoned Mr Brady, his supervisor, to tell him that he had witnessed an incident on the ROM, which was “very dangerous.”11 He contacted Mr Brady around 8.30am.12 He told him what had happened. Mr Brady seemed upset and worried about possible repercussions. When Mr Doman asked whether he should provide a statement, Mr Brady told him not to worry about it as it was being investigated by “A crew”, the crew that had finished its shift at the time of the incident. For the remainder of that “swing” being the balance of the days remaining before Mr Doman had time off site, people were being told that the incident was still being investigated. Mr Doman felt that the atmosphere was turning sour. He was told by Lisa McCord, the C crew step up supervisor that he had a target on his back – presumably for having reported the incident. This conversation was said to have taken place in front of Mr Brady and Nathan Halil, another operator. The appellant stated that Mr Brady said: “Lisa, that’s the wrong choice of words,” which she then turned around and said, “It doesn’t matter, you’ll always have a target on your back now.” 13 The inference that the appellant seeks to have drawn is that Mr Brady accepted that Mr Doman was being targeted for reprisal, but that he should not have been told in so many words. [20] He says he did not hear anything back about the investigation process over the next seven days or so. [21] Mr Doman’s evidence as to what subsequently happened in relation to his reporting of the incident is to the following effect: (a) He asked Mr Brady on numerous occasions about the progress of the investigation;14 (b) In early July 2014 he telephoned Charl Botes, the mine superintendent, and told him that “there might have been an incident covered up, up there on the ROM” to which Mr Botes replied that he did not know about the incident. Mr Botes told him “… you can write out a statement for me and I’ll investigate it”; (c) On 15 July, he again spoke with Mr Botes about incidents: “being swept under the carpet” mostly involving Ms McCord; the ROM incident having been covered up;15 he said the crew had asked him to speak (on their behalf) about supervision, about the incidents that were happening and occurring; and 24 people were willing to sign a declaration that they were not happy about supervision; 11 T 1-12, line 14. 12 T 1-50, lines 15-16. 13 T 1-12, lines 39-45 and T 1-13, lines 1-15. 14 T 1-77. 15 T 1-78, lines 41-47. -- 6 of 18 -- 7 (d) He said Mr Botes asked him to write out a statement.16 Importantly, during this conversation the appellant was told by Mr Botes that the purpose of making the statement was so that a formal investigation into the incident could be undertaken17 and stated in evidence that "his actual words were, 'I will fully investigate it'";18 and (e) at pre-start meetings, over the next two week period or so, Mr Brady informed C-crew that the investigation by Mr Hill was ongoing.19 [22] On 15 July 2014, the appellant proceeded to fill out a statement form (given to him by Mr Brady) in the crib hut. He says that whilst completing the task Mr Brady and Ms McCord asked him what he was doing; he was “bamboozled a little bit” and informed them that it was about the incident at the ROM.20 The appellant then stated Mr Brady said: “If you write that, we’re going to get rid of you. If you put that in, you’re gone. You’re – you’ve got a target on your back already. We’ll do anything in our power to get rid of you.”21 [23] Mr Doman said that he attempted, unsuccessfully, to call Mr Botes on three occasions and ultimately sent him a text message.22 He further stated that he felt “really worried”23 and after he completed the statement he put it on Mr Botes’ desk in the office24 as he had formed the view that he could no longer trust Mr Brady and Ms McCord.25 [24] Shortly after the incident on the ROM Mr Doman claims that other members of his crew isolated him as they did not want to be seen as associating with him. He was shunned in the crib room, and others would stop talking to, and move away from, him should Mr Brady enter. [25] Consequently, in late July,26 he contacted HR Corporate by telephone, and made a complaint that he was being bullied and harassed and the incident of 27 June “has never been investigated.”27 Sarah Wiles, from HR Corporate, contacted the appellant the next day and the appellant says he outlined his situation and said “that psychologically it was wearing me down”28 and he was being abused at work. Ms Wiles subsequently arranged for the appellant to seek assistance from Griffin Psychology and he attended upon a lady, referred to as Bronwyn, in September.29 He then had a week off work.30 16 T 1-14, lines 21-29. 17 T 1-81, lines 44-46. 18 T 1-82, lines 1-2. 19 T 1-77, lines 7-11; T 1-78, lines 1-3. 20 T 1-14, lines 34-39. 21 T 1-14, lines 39-46. 22 T 1-15, lines 3-5; T 1-83; Exhibit A1. 23 T 1-15, lines 40-44. 24 T 1-16, lines 1-6. 25 T 1-87, line 5. 26 T 1-17, lines 25-26. 27 T 1-16, lines 41-47 and T 1-18, lines 41-46. 28 T 1-24, lines 43-46. 29 T 1-25, lines 1-2. 30 T 1-25, line 9. -- 7 of 18 -- 8 [26] The appellant gave evidence that the week off work helped him recover but when he did return to work he was questioned as to why he was having so much time off. He said that he informed everybody that he had been seeing a psychologist because of the incident. He also alleged that Tim Brady had called him a psychopath.31 [27] Mr Doman was subsequently informed that his claims of bullying, harassment and segregation had been investigated and were found to be unsubstantiated.32 Arising from the appellant’s statement an investigation had been undertaken which culminated in a letter from Mr Ken Jones (the manager, Production and Coal Operations), dated 3 September 2014.33 The letter noted that Mr Doman's complaints had not been able to be substantiated. In addition to his complaint that the ROM incident had not been investigated, that Ms McCord and Mr Brady had tried to dissuade him from writing his statement and that Ms McCord had told him that he had a target on his back, it appears that Mr Doman had also alleged that Ms McCord had been driving erratically and above the speed limit in wet weather and that she had used her mobile phone whilst driving. Mr Jones provided the letter to the appellant at a meeting34 and explained to him the outcome of this process.35 The proceedings [28] In addition to giving evidence himself, Mr Doman called two lay witnesses to support his allegations of bullying and harassment. [29] Mr Nathan Lee Halil, another operator who worked the same shift as Mr Doman, said that he had participated in a conversation which took place in the middle of a coal floor, subsequent to Mr Doman having complained to corporate HR about being bullied. The transcript records the following between the appellant and Mr Halil: Okay. What – who was there? Who was present?---Tim Brady, Lisa McCord and myself. Yes. And what was the nature of the conversation?---Okay. Well, we had a pre-start, and in that pre-start, I questioned safety concerns, and I was – at the end of the pre-start, I was taken to my job, which was a loader, by Lisa and Tim, where they had approached me about the way I was conducting myself at pre-starts, that I was undermining them, that I need to keep my mouth shut. It escalated, and when we got to the loader and we got out, it – it escalated into sort of full-blown argument. …. APPELLANT: Mr Halil, that was one time that you remember. Do you remember any other times that you witnessed me being targeted by Tim Brady and Lisa McCord?---Well, for me, it was – it was an ongoing process for 31 T 1-25, lines 10-15. 32 T 1-25, lines 16-19. 33 Exhibit R3. 34 T 1-117, lines 40-42. 35 T 1-26, lines 14-16. -- 8 of 18 -- 9 them, the targeting and the bullying. I was aware, as was the crew, that you had your bag searched - - - Yes?--- - - - the first person at Cavil Ridge to have that done to them. Because I had a very good rapport with a lot of the new-to-industry, as I trained them, I had a lot of the crew members coming to me and saying that they’ve got a – Adam’s in – Adam’s in the – you know what, he needs to be – we need to be not seen with him, guilt by association, all those sort of things. That was on a daily basis. APPELLANT: Mr Halil, were you present at a time with Mr Brady and Ms Lisa McCord and myself … This conversation was taking place on the middle of a coal floor where I had turned up and I … had seen both Tim Brady and Ms Lisa McCord speaking with Nathan Halil on the peat floor. … Mr Halil, do you remember that conversation?---I do. I do, your Honour. … where Ms McCord said: “That’s exactly why you and Adam Doman have targets on your back. Tim Brady then interjected and said, “We can’t – we can’t use that wording Lisa. Don’t – don’t say that. That – that wording’s not correct.””36 [30] When asked whether the appellant was being targeted by Mr Brady and Ms McCord, Mr Halil said that the appellant was the first person to have had his bag searched at Cavil Ridge.37 [31] Mr Halil further stated that after the appellant had been informed, on 3 September 2014, that his allegations had been found to have been unsubstantiated, the bullying, harassment and segregation he witnessed towards the appellant “amplified.”38 Mr Halil attributed the conduct to Mr Brady, yet no specifics were given.39 [32] Mr Halil recalled having a meeting with Mr Botes around 16 October 2014, where Mr Botes allegedly said “I need to look after myself. Adam Doman is – collateral damage …”40 and further: “yep, you’re collateral damage.” Adam Doman was collateral damage, and his days are numbered here; he’s finished; he went to corporate HR …”41 [33] Yet, during cross examination, Mr Halil agreed that at the meeting on 16 October 2014, Mr Botes assured him that he did not have a target on his back and that he should keep promoting safety.42 Similarly, he agreed that Mr Botes told him the appellant did not have a target on his back.43 [34] Mr Halil said that at a meeting (after the date the appellant provided his statement) Mr Botes said that he accepted full blame for the way Mr Brady and Ms McCord 36 T 2-15, lines 40-43. 37 T 2-16, lines 1-11. 38 T 2-18, lines 28-32. 39 T 2-18, line 45. 40 T 2-20, lines 31-32. 41 T 2-21, lines 37-38. 42 T 2-25, lines 4-6. 43 T 2-25, lines 19-20. -- 9 of 18 -- 10 had been running things; he intended to fully correct it and the crew was going to move on in a forward manner.44 Mr Botes also said that he was going to speak to Mr Brady and Ms McCord personally and give them a directive to change and “if there was any bullying, targeting that would cease immediately.”45 [35] Mr Brett Pelling, another operator on Mr Doman’s shift, who gave evidence on his behalf, became aware of the ROM incident at a later time by “word of mouth.”46 He recalls the appellant asking Mr Brady on three or four occasions during the swing about the outcome of the incident and was advised that A-crew was handling it internally47 and “they’re taking … care of it.”48 He added that Mr Doman had asked Mr Brady what was being done about the ROM incident "every day for weeks"49 [36] Mr Pelling said that after the incident he witnessed the appellant being segregated, “if you were seen to be with this bloke or befriend him or even socialise slightly, you were on the outer, and you went nowhere.”50 Further, he stated Mr Brady told him not to travel with the appellant. [37] Mr Pelling said that after Mr Doman raised the incident on the ROM he observed Mr Doman being bullied and harassed. He was segregated: " … it remind me of school. It is basically – if you were seen to be mates with Adam – and I – I went through this personally myself. My career was put on hold for a long time where I work until management changed. If you were seen to be with this bloke or befriend him or even socialise slightly, you were on the outer, and you went nowhere. You know, like, I – I personally had myself told – I used to travel with Adam. I was told personally that, you know, it’d be a good idea if you stopped travelling with that bloke. Who told you that?---Tim. Tim Brady, at the time the supervisor. 51 [38] Mr Brady made other similar comments to Mr Pelling from time to time. [39] When asked about his understanding of the "reject truck" Mr Pelling said that it was driving the truck for the disposal of waste coal "… it was the end-of-the-line job … I personally loved it. I didn't like who I was working with." Mr Pelling recalled the appellant also being assigned to the reject truck.52 [40] The regulator called several witnesses in relation to the incident on the ROM. The gravamen of their evidence is that what had occurred did not constitute a risk, and was not even considered to be an incident. After the appellant reported it, Mr Bryan Hill, the A crew coal supervisor, spoke with the operator of one of the unattended 44 T 2-22, lines 26-32. 45 T 2-23, lines 16-17. 46 T 2-30, line 41. 47 T 2-31. 48 T 2-32, line 3. 49 T2-32, line 36. 50 T 2-33, lines 43-45. 51 T.2-36, line 1. 52 T.2-34, line 25. -- 10 of 18 -- 11 vehicles and accepted that it had been left in a fundamentally stable position. There had been a "hump that we put in there for a truck to back over. So this prevented the trucks rolling."53 [41] Other witnesses called by the regulator confirmed this. Ms McCord gave evidence that at the pre-start meeting the morning after the incident Mr Brady told the crew that there was nothing obviously wrong with what had happened as there was a hump on the ROM.54 [42] I am satisfied that there was in fact no life threatening or reportable incident on the ROM. Mr Doman had erroneously formed the view that the two trucks had not been left in a fundamentally safe state. Thereafter he became somewhat obsessed about, what he perceived to be, BHP's failure to properly investigate. His obsession is confirmed by Mr Pelling's evidence that the appellant had almost daily harangued Mr Brady as to what was being done to investigate the "incident". [43] The witnesses called by the regulator all rejected the notion that Mr Doman had been victimized, bullied or isolated, because he had reported what he had seen on the ROM, or at all. Given the lack of particularity in Mr Doman's allegations, even in the evidence of Messrs Halil and Pelling, the general denials by the regulator's witnesses are not surprising. [44] Mr Brady's evidence was to the effect that the appellant was particularly interested in knowing what disciplinary action had been taken against Mr Adkins, the operator who had left the truck unattended on the ROM.55 This is corroborated by the evidence of Ms McCord who said that at the pre-start meeting the morning after the ROM incident Mr Doman asked if there was going to be any disciplinary action taken against Mr Adkins.56 [45] The only “bullying incidents” which Mr Doman particularized to any extent were the occasion on which he alleges his bag was searched, the episode at the mine when Lisa McCord told him that he had a target on his back, the comments by Mr Brady and Ms McCord when he subsequently wrote his statement, and Mr Brady allegedly calling him a psychopath. [46] According to Mr Halil, Mr Doman was the first person at the mine to be subjected to a bag search. However, Mr Doman’s own evidence casts a different light on the “bag search”: “Right. Okay. Now, you gave some evidence that your – your bag – your crib bag had been searched by Mr Brady, and he had asked you whether you had your phone or iPad in your bag?---Phone and iPad. Okay. And – and it would be a breach if you had those items in your bag?---No, he just asked if I had them in my bag. 53 T 2-77, lines 5 -15. 54 T 3-10, lines 10-15. 55 T 2-92, lines 1-3. 56 T 3-10 lines 25-30. -- 11 of 18 -- 12 Okay. And you said that he then asked you would you mind him checking the bag?---No, I said I didn’t have them, and I said would you like me – would you like to check my bag, I said. Right. Okay. You opened it up?---Yes. And nothing was found in your bag?---That’s correct. On your version of events?---Yes, I opened up the bag. He looked in it, and there was nothing to be found.”57 [47] Mr Brady said that another employee, Jarred Marshall, had told him that Mr Doman had a mobile phone on him. (The carrying of a mobile phone on the mine site is a serious safety breach) Mr Brady said that he asked the appellant whether he had his mobile phone as they passed each other when Mr Doman was returning from the crib hut to the mine. Mr Doman said that he did not, and they both went on their respective ways. Mr Brady denied having asked the appellant to open his bag. He said he did not conduct a search. [48] In my opinion, even on Mr Doman’s version of events, the so-called “bag search” does not constitute bullying or harassment. To the extent that it might be said to be management action, it was both reasonable and carried out in a reasonable way. [49] When I recalled Mr Doman, in order to give him an opportunity to particularize the bullying, Mr Doman alleged that Ms McCord had told him that he had a target on his back almost every day after he had reported the incident, as well as Mr Brady on a less frequent basis. He again related the bag search occasion. He said that he was told almost daily that his job was in jeopardy by Mr Brady and Ms McCord. He said that he was ignored by Mr Brady and that when he asked him questions he was told that the questions he asked were stupid. Tellingly, he said that he told Mr Brady "I’m still trying to hear about an incident that I reported to you and that I believe that you should have been investigating because I reported it to you, which you said that I couldn’t give you a statement for. And it was just like leave the fucking incident alone Adam. You didn’t get us. We’re out to get you." 58 Further, "Got to a point where I was looking over my shoulder every day of where these people were coming from. … they would follow me in a light vehicle … . Now, I can only assume that they were seeing if I went over the speed limit. I’m looking out my rear vision mirrors more than I’m looking in front of me."59 [50] Mr Doman also alleged that at his meeting with Mr Botes on 17 October 2014 Mr Botes told him he was collateral damage; he was the devil; that he had been given the green light by his superiors to get rid of him; that he was being hammered by them as to why Mr Doman was still present.60 57 T 2-62 lines 3-20. 58 T 2-57, line 10. 59 t 2-57, line 29. 60 T 2-58, lines 16 – 34. -- 12 of 18 -- 13 16 November incident [51] The 16 November incident can be dealt with relatively concisely. This is the day that Mr Doman decompensated. [52] On the day in question Mr McIlwain, who had taken over from Mr Brady as supervisor, and Mr Brady were in a vehicle carrying out pit inspections. As their vehicle came around a corner, they observed "a dump truck parked next to a wheel dozer with two operators outside of the cabs having a bit of a talk."61 Their vehicle was about 100 to 200 metres or more from the truck and dozer62 Mr McIlwain knew Mr Pelling was in the wheel dozer but could not identify who was in the dump truck. He was a little shocked by what he saw,63 namely, operators outside their cabs because "standing outside of the cab that could possibly kill them if brakes failed."64 Mr Brady said that he was also stunned by what he saw. They observed this scene for some 20 seconds and proceeded to drive towards the vehicles, but the operators re-entered their cabs and drove away before they got there. [53] There was a considerable amount of evidence led as to precisely what transpired on that occasion. However, the essential facts are not in dispute. Mr Doman’s and Mr Pelling's vehicles were stopped close to each other and both operators were out of their vehicles. Mr Doman and Mr Pelling each gave detailed accounts of what they were doing and why. They both contended that they had breached no rules, and certainly no life-saving rules. According to them, both vehicles were fundamentally stable. [54] Be that as it may, the supervisors, having come across a situation that appeared to constitute a hazard; two huge vehicles too close together, the operators outside their cabins and the vehicles apparently not fundamentally stable, had a duty to investigate. [55] Later that day Mr Doman was called to the office to speak with Mr McIlwain, who told him that his truck had not been fundamentally stable. The appellant relates what happened during this conversation thus: “He – he just said, “You were outside your truck and that’s breaking a lifesaving rule.” And I’ve just gone – and then I’ve sort of realised where – where it was all going and I said, “That’s not breaking a lifesaving rule, though, to be out of a truck. It’s got to be un-fundamentally stable for me to be outside my truck.” “Oh, yeah, it was un-fundamentally stable. We’ve both seen it was un- fundamentally stable,” and I – I just had a breakdown. I just broke down and I just said, “That’s enough.” I said – I – I couldn’t swallow. I couldn’t even talk properly. My head was spinning at a thousand miles an hour. This absolute sadness that – like, they – to me, they had created an incident out of – out of nothing and he asked me to go back to work and I told him that I 61 T 3-28, lines 39-40. 62 T 3-29, lines 1-2; T 3-42, lines 40-46. 63 T 3-29, line 22. 64 T 3-29, line 39. -- 13 of 18 -- 14 couldn’t. In the state of mind that I was in, I just could not go back to work. I said, “Can you please take me back to camp.” I wasn’t drug tested. I was asked to give a statement, and – and I did write a statement at the time, but even writing it, I – I don’t know, really, what he was talking about and I knew that truck was fundamentally stable. It – it was fundamentally stable because of one reason, and one reason only. I was going to leave it, and to – to leave it, it had to be fundamentally stable.”65 [My emphasis] [56] Mr Doman did not return to work that day. He was taken back to camp by Mr McIlwain. The following day Mr McIlwain visited the appellant in his room and arranged for him to receive medical treatment. [57] It is not necessary to deal with the evidence of what further transpired, as Mr Doman sustained his injury when he broke down on 16 November 2014. The evidence is to the effect that thereafter he was supported by the company, albeit Mr Doman complains that the company took too long to get him away from the mine as he had requested. The medical evidence [58] The appellant called Dr Martin Nothling, a psychiatrist, who conducted a consultation and examination on 25 August 2015, with a subsequent medical report provided on 9 September 2015. The report describes the appellant as "suffering from an adjustment disorder with mixed anxiety and depressed mood secondary to reported stressors in the workplace for BHP Billiton between 1 May and 18 November 2014." Under cross examination Dr Nothling was asked by Mr McLeod what he meant by this: "Well, secondary to the reported stressors means that he developed this disorder as a result, if you want to put it that way, of these stressors occurring in his workplace and his concerns about safety as has been detailed in the report, which were circumstances surrounding those – those two incidents" The doctor added: "The interpersonal interactions between he and others at the workplace were, in my opinion, major significant factors to his injury." [59] During his oral evidence the doctor said: " …did he raise another issue in the workplace that effectively he was being segregated by other workers in the workplace arising from him reporting the incident that occurred on the 26th of June 2014? I don’t – I don’t think there was a particular emphasis on that that I’m – that I’m aware of. I think he wasn’t really segregated as far as I know.66 65 T 1-31, lines 9-27. 66 T 1-68, lines 28-30. -- 14 of 18 -- 15 … Well, on page 8 of my report, he does state there, and I’ve stated there that he reported to me that some of the other workers were told not to associate with him. That was after the – the – the incident of 26th of June 2014 and he was – he rang the HR Corporate and initiated an internal investigation, but that’s – that’s the other – well, that’s the reference, I think, to what you’re getting at, that some of the other works were told not to associate with him.67 … DEPUTY PRESIDENT: …he says that after the first safety incident, he was, if you like, put under greater scrutiny by management and every minor transgression that he might’ve committed was raised with him – in other words, that he was somewhat being picked on. Do you recall him ever saying anything to you about that?---Yeah. Well, after the – your Honour, after the first incident, on – on page 7 of my report, it does – and I’ve reported there, after – after he made that complaint, the – his bag was searched for a mobile phone and contraband and Mr Tim Brady informed him that they would get him sacked and Mr Charl Botes ignored the subject as reported, and it goes on to what I just made a comment about, that some of the other workers were told not to associate with him.68 … DEPUTY PRESIDENT: Dr Nothling, Mr Doman gave evidence today that the isolation – the alleged isolation of him by his co-workers and the picking on him by management for minor infractions were significant causes of his concerns, as I recollect his evidence. Did he say anything to you that would suggest that that was the case when he was telling you what was causing him distress?---Yes, your Honour. Well – well, I – I’ve reported there on the two incidents and the sort of after, or the following on effects from those, and that did include what you’ve just mentioned there, that he – he had certain stressors that followed on from the – those particular events in terms of the relationship with others. ."69 [60] Although Dr Nothling recorded that the appellant had told him that some of the workers had been told not to associate with him, that his bag had been searched, the picking on him by management for minor infractions, that Mr Brady had told him he would get him sacked and that Mr Botes "ignored the subject as reported", the doctor did not report that the appellant had been bullied or harassed, he did not report on the incident at the mine where Ms McCord told the appellant that he had a target on his back. [61] His written conclusion was that interpersonal reactions were major significant contributing factors to Mr Doman's injury.70 67 T 1-68, lines 40-46. 68 T 1-69, lines 10-20. 69 T 1-71, lines 15-23. 70 Exhibit A10, p.25. -- 15 of 18 -- 16 Conclusion The incident on the ROM [62] I am satisfied that what Mr Doman perceived to be a serious, potentially life threatening situation, was nothing of the sort. I am satisfied that there was a bund at that location and that the unmanned vehicles were fundamentally stable. I do not understand why, had Mr Doman held the concerns that he said he had, he waved other vehicles past the dangerous unmanned vehicles71 and waited until he was on his crew break before reporting the matter. Under cross examination, Charl Botes, seemed similarly confused as why Mr Doman had continued working if he considered it to be such a serious incident. …I remember I asked you why didn’t you stop the incident immediately there and then. Because that’s the process of site. If you see an incident or an accident on a site, you need to immediately – under the Coal Mine Act and Regulations – you need to immediately report an incident and stop the situation. And you didn’t. And that’s what I – I couldn’t understand why it was an incident, when it wasn’t raised.72 [63] In any event, Mr Doman does not contend that it was the incident itself that contributed to his decompensation. Rather, he claims that it was the failure to investigate his reporting of the incident and then the treatment he received following his report. [64] I am satisfied that the matter was sufficiently and appropriately dealt with. The operator who left his vehicle unattended was questioned by Bryan Hill who was satisfied that no breach of safety rules had occurred.73 Lisa McCord, the C crew supervisor, who brought the relief crew to the vehicles had no issue with the manner in which the vehicles had been left. Once the matter had been elevated to Mr Botes, he also was satisfied that there was no need to take the matter further.74 [65] To the extent that Mr Doman’s injury was occasioned by the manner in which the ROM incident was investigated, it arose out of, or in the course of management action, which was reasonable and carried out in a reasonable manner. Bullying and harassment [66] As for the alleged bullying and harassment following the reporting of the incident, I cannot find that the appellant has discharged his burden of proving, on the balance of probabilities, that he was subjected to bullying and/or harassment. [67] Mr Doman’s evidence about the conversations he had with Mr Brady, Ms McCord and Mr Botes, wherein they allegedly made the derogatory comments that I have outlined above, is unconvincing. It is inherently unlikely that, even were there a 71 T 1-10, lines 19-21. 72 T 3-87, lines 34-39. 73 T 2-77, lines 25-27. 74 T 3-96, line 31. -- 16 of 18 -- 17 conspiracy to remove Mr Doman, the three individuals concerned would be foolish enough to tell him about their intentions. Each of them has denied saying the matters attributed to them. They all gave their evidence in a straightforward manner and appeared to me to be credible. Where their evidence conflicts with that of Mr Doman, I prefer the evidence of each of them. Mr Doman’s evidence was somewhat disjointed and exaggerated. For example, his evidence that he had been told by Ms McCord that he had a target on his back morphed into her telling him that on a daily basis as well as Mr Brady also repeatedly saying the same. In relation to the bag search, Mr Doman’s evidence was inconsistent and I prefer Mr Brady’s evidence. [68] Although Mr Doman did not specifically refer to it as a stressor, there is another matter that I should address. Approximately a week prior to his decompensation, Mr McIlwain had told him that he intended to place him on a personal improvement plan due to his having consistently ignored warnings to wear safety glasses instead of his own prescription spectacles. Another aspect of the PIP related to Mr Doman's absences. There is sufficient evidence to persuade me that, to the extent that it could be said that the placing of the appellant on a PIP contributed to his injury, it arose out of, or in the course of, reasonable management action carried out in a reasonable way. [69] There is some evidence that may explain Mr Doman’s behaviour – his constant haranguing of Mr Brady about the state of the investigation,75 and his somewhat negative attitude.76 According to Mr Brady, when Ms McCord, a young female, was appointed step-up supervisor of C-Crew, Mr Doman and Mr Halil were unhappy about it, they thought they deserved the role.77 Ms McCord's evidence was to a similar effect: MR McLEOD: Whilst you said you considered that you had a good working relationship with members of the C-crew, did you get the impression that some members of the C-crew may have been happy – unhappy with your role?---Mainly from Adam and Nathan. During that period, I had quite a few members of the crew, at least four – three to four operators come and tell me about a petition that Nathan and Adam had – were starting to get rid of me out of my – well, to take me out of my role as step-up. And I’d also been told by Tim – because we had to take this to our next level up, which was Charl, that Adam had gone to Tim and told Tim to take me out of my step-up role or he would be going up to further management to have me removed.78 [70] Unfortunately, Mr McLeod did not put these allegations to Mr Doman in cross- examination, and so I must treat this evidence with considerable caution. [71] As I said earlier, the so-called bag search did not constitute bullying or harassment. [72] Again, it is notable that Dr Nothling said very little about the bullying and harassment in his report or his oral testimony. 75 T 1-77, lines 26-30. 76 T 2-103, lines 5-15. 77 T 2- 86, lines 15 – 29. 78 T3-13, lines 30-40. -- 17 of 18 -- 18 [73] I am not satisfied that Mr Doman was subjected to bullying and harassment. His contention that such behaviour led to his decompensation cannot be accepted. 16 November 2014 [74] The final matter that Mr Doman contends contributed to his decompensation was the way he was treated on 16 November 2014. It is common ground that the two vehicles were standing close together. It is also common ground that the two operators were outside their vehicles. The reasons for this occurrence are immaterial. It was incumbent upon Mr McIlwain to investigate what appeared to be a serious breach of safety rules. [75] Mr Doman, broke down as soon as it was suggested to him that he had been in breach of safety rules. [76] It seems that his being spoken to about the incident, and the suggestion, by Mr McIlwain, that his truck had been seen in a non-fundamentally safe position, was the major significant contributing factor to his injury. [77] As stated by Martin J in Davis v Blackwood (Workers' Compensation Regulator),79 "[when applying 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". [78] The calling of Mr Doman to the office in relation to the 16 November incident and putting to him Mr McIlwain’s observations, constitutes management action. In the circumstances, it was reasonable management action. In my view it was also carried out in a reasonable way. It was appropriate for Mr McIlwain to require Mr Doman to see him. Indeed, Mr McIlwain would have been derelict in his duties had he not. It was also appropriate for Mr McIlwain to put to Mr Doman what he believed had transpired. At that preliminary stage it was not necessary that Mr Doman should have been provided with a support person; a satisfactory explanation of the event would have been an end of the matter. Unfortunately, Mr Doman "sort of realised where it was all going" and broke down. [79] In, my opinion, it is likely that the reasonable management action carried out in a reasonable way on 16 November 2014 was the significant contributing factor to Mr Doman's psychiatric or psychological injury. By operation of s 32(5) of the Act it is excluded from the definition of "injury". [80] The appeal must be dismissed. As is usual in matters of this nature Mr Doman must pay the regulator’s costs. 79 [2014] ICQ 9 at [47]. -- 18 of 18 --