Costelloe v Workers' Compensation Regulator; Ex parte WorkCover Queensland and Origin Energy Pty Ltd [2016] QIRC 143

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Costelloe v Workers' Compensation Regulator; Ex parte WorkCover Queensland and Origin Energy Pty Ltd [2016] QIRC 143 PARTIES: WorkCover Queensland (Applicant) Origin Energy Pty Ltd (Applicant) Costelloe, Joseph (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2016/38 PROCEEDING: Objection to Notices of Non-Party Disclosure DELIVERED ON: HEARING DATE: 16 December 2016 16 November 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDER: Origin Energy Pty Ltd to effect disclosure no later than 27 January 2017; No order as to costs. CATCHWORDS: APPEAL AGAINST DECISION - Psychiatric or psychological injury - Notices of Non-Party Disclosure filed by appellant - objections - whether documents should be disclosed - consideration of relevance, oppressiveness, matters not in contention - other bases for objection. CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 Industrial Relations Act 1999 ss 274, 320 Industrial Relations (Tribunals) Rules 2011 rr 64B, 64C, 64E, 64F, 64G -- 1 of 10 -- 2 APPEARANCES: Ms B Hughes, Solicitor, Kaden Boriss for WorkCover Queensland; Mr E Mentiplay, Solicitor, Johnson Winter & Slattery Lawyers, for Origin Energy Pty Ltd; Mr J Costelloe, Appellant; Ms R Jamieson, Appeals Officer for the Workers’ Compensation Regulator. Decision [1] Objections have been lodged to notices issued by Mr Costelloe seeking non-party document production from WorkCover Queensland and Origin Energy Pty Ltd. The notices relate to an appeal brought by Mr Costelloe against a decision of the Workers Compensation Regulator to reject his application for compensation arising from a psychological injury he sustained during his employment with Origin Energy Pty Ltd. [2] The objections made were subject to a hearing before the Commission on 16 November 2016. On 18 November 2016, a decision dealing with the objections was released and included the issue of interim orders binding on Origin Energy. The orders were not finalised at the time because Origin Energy had not had the opportunity to review statements of facts and contentions filed by both the regulator and the appellant in the substantive proceedings. Origin Energy has now reviewed the statements and has filed further submissions in response to the notices of disclosure. [3] The scope of Mr Costelloe's appeal was dealt with my decision of 18 November 2016 in the following terms: (a) Mr Costelloe's case is framed by a statement of facts and contentions which he filed on 14 November 2016. Mr Costelloe claims that his psychological injury was attributable to management failures associated with events in the workplace occurring between November 2014 and April 2015. Mr Costelloe commenced work with Origin Energy on 15 September 2014 in the capacity of senior draftsperson. He said that in November 2014 his direct report (Ms Tams) was reassigned and that as a consequence he was asked to take on many of her duties. He also maintained that he was appointed to replace Ms Tams in the role of Lead Draftsperson, however Origin Energy denies that any such appointment was made. (b) Mr Costelloe said that he was ill-prepared and ill-equipped to take on the new and additional duties and responsibilities and that throughout January and February 2015 he had many conversations with his manager, Mr Claughton, about difficulties in the workplace, an unmanageable work load, and his inability to cope. (c) Mr Costelloe claims that his circumstances worsened when decisions were made to further reduce staffing in his drafting team culminating in the departure of his assistant, Mr Matthies, on 6 March 2015. By this point in time the drafting team had been reduced from three to one. Mr Costelloe acknowledges that concurrent with the plan to cut staffing, management announced that a range of drafting functions would be contracted out. -- 2 of 10 -- 3 However he maintained that work was not contracted out until May 2015 and, in the interim, the cumulative impact of workplace stressors and the failure of management to provide appropriate support, resulted in his decompensation. (d) As currently informed, it appears that the determination of Mr Costelloe's appeal will include the following key determinations: Findings about the facts and circumstances associated with the re- assignment of Ms Tams and the impact of her re-assignment on Mr Costelloe's role, duties and responsibilities; Findings about the interactions between Mr Costelloe and Mr Claughton relating to his ability or capacity to absorb duties and responsibilities passed on from Ms Tams; Findings about interactions between Mr Costelloe and Mr Claughton about his capacity, and his drafting team's capacity, to undertake the work allocated; Findings about interactions between Mr Costelloe and Mr Claughton about complaints made by Mr Costelloe about his work load and related issues; Findings about the reasonableness or otherwise of Mr Costelloe's workload; Findings related to Mr Costelloe's complaint to HR on 2 March 2015; Findings about the management response to claims made by Mr Costelloe relating to changes in his scope of work, his workload, and his ability to cope with workplace demands; Findings related to Mr Fleming's and Mr Asheidu's involvement in management decisions affecting Mr Costelloe's role, duties, responsibilities and his capacity to manage the tasks assigned to him. Industrial Relations (Tribunals) Rules 2011 [4] Rule 64B provides that a party to a proceeding may, by notice of non-party production, require the production of documents "directly relevant to a matter in issue in the proceeding", while Rule 64C provides that a notice must "state the matter in issue in the proceedings about which the document sought is directly relevant". Rule 64E provides that objections to production may be made for reasons which may include the following: (a) the lack of relevance to the proceeding of the documents mentioned in the notice; -- 3 of 10 -- 4 (b) the lack of particularity with which the documents are described; (c) the confidential nature of the documents or their contents; (d) the effect production would have on any person. [5] Rule 64G provides that the Commission may make any order it considers appropriate including, but not limited to, an order: (a) lifting the stay; or (b) varying the notice; or (c) setting aside the notice. Origin Energy Submissions [6] The 18 November 2016 decision made interim orders in respect to fourteen categories of documents or records, and also directed the disclosure of contact details of six former staff of Origin Energy. The interim orders required that Origin Energy disclose to Mr Costelloe the following documents or records: (a) Any policy or procedure current at November 2014 which is relevant to the undertaking of higher duties by a senior draftsperson; (b) Code of Conduct Policy; (c) Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton, or between Mr Claughton and Mr Fleming and/or Mr Asheidu, about any management consideration given to the consequences for the drafting team of the reassignment of Ms Tams, including whether Mr Costelloe should act in the lead role or be considered for permanent appointment to the lead role; (d) Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton which surfaced any concern by Mr Costelloe that he was ill- prepared or ill-equipped to take on new or additional duties and responsibilities as a result of Ms Tams re-assignment; (e) Documents including emails, diary entries, notes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton which canvassed difficulties that Mr Costelloe was experiencing relating to work load, the allocation of work to his drafting team, or surfacing his inability, or the inability of his team, to cope with their respective workloads; (f) Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Origin Energy management and Mr Costelloe, including Mr Costello's drafting team, -- 4 of 10 -- 5 providing information about a restructure, staff cuts, or outsourcing of work impacting on Mr Costelloe or the drafting team; (g) Training hand-outs, if any, provided to participants, including Mr Costelloe, at a two day safety course conducted at the Park Regis Hotel, North Quay in October or November 2014; (h) Training hand-outs, if any, provided by Ms Tams to participants, including Mr Costelloe, at a compulsory training session conducted by Ms Tams at Origin Energy's Head Office, Coronation Drive, in October or November 2014; (i) A copy of documents included in Mr Costelloe's personnel file which are relevant to any of the matters specified above including any emails, diary entries, file notes, meeting minutes and memoranda relating to Ms Tams reassignment and to concerns or complaints made by Mr Costelloe about his non-appointment to the lead draftsperson role, or about his workload, or his teams workload, or any inability to cope with the work allocated to him or his team; (j) A copy of Mr Costelloe's complaint to HR on 2 March 2015 and a copy of emails, diary entries, file notes, meeting minutes and memoranda evidencing any communication between HR and other management about the appropriate response to the complaint; (k) Documents including emails, diary entries, notes, meeting minutes and memoranda relating to meetings, conversations or phone calls between Mr Costelloe and Mr Claughton on 12 March 2015, 16 March 2015, 20 March 2015, and 24 March 2015; (l) Documents including emails, diary entries, notes, meeting minutes and memoranda relating to a meeting between Mr Costelloe and Mr Asheidu on 23 March 2015; (m) Records or minutes of drafting team meetings convened by Mr Claughton in January and February 2015 in which Mr Costelloe participated; (n) Documents relating to Mr Costelloe's performance review on 27 February 2015. [7] Origin Energy's submissions were filed in the Commission on 9 December 2016. In the submissions Origin Energy did not oppose disclosure provided for in categories (a) and (b); did not make submissions in respect to categories (k) and (m); partially opposed disclosure in categories (c), (d), (e), (f), (i), and (l); and objected to any disclosure in categories (g), (h), (j), and (n). [8] Category (k) provides for the disclosure of any records of meetings, phone calls or conversations that took place between Mr Costelloe and Mr Claughton on specific dates in March 2015. Category (m) provides for the disclosure of minutes of drafting team meetings that took place in January and February 2015. The material sought is -- 5 of 10 -- 6 relevant and does not impose any onerous discovery activity. The final orders will confirm disclosure in categories (a), (b), (k), and (m). [9] The information sought in category (c) is clearly relevant to his appeal. The complaint of oppression made by Origin Energy is, in my view, overstated. While time frames were not specified, the reassignment of Ms Tams occurred in late November 2014 and Mr Costelloe claimed that he was told of this in early November 2014. The interim order will be revised to limit disclosure to records made in either November or December 2014. The disclosure should also include an email sent by Ms Tams on 1 December 2014 in which she advises staff of her re-assignment and deals with how she will be replaced. [10] The information sought in category (d) is also directly relevant to his appeal. While this information might need to be collected over a longer time frame, the information is limited to communications between Mr Costelloe and Mr Claughton. While the claim of oppression is not accepted, the interim order will be revised to specify that disclosure relates to the period commencing 1 November 2014 and ending on 23 March 2015. [11] The material sought in category (e) also seeks disclosure limited to communications between Mr Claughton and Mr Costelloe. Again, the relevant period extends from the time that Mr Costelloe was informed of Ms Tams' departure to 23 March 2015. The claim of oppression is not accepted but the revised order will impose a time frame from 1 November 2014 to 23 March 2015. [12] The material sought in category (f) canvasses information relating to a restructure of the drafting team in late 2014 and early 2015. The material is directly relevant to the appeal and Origin Energy's claim of oppression is not accepted. Mr Costelloe's statement refers to a meeting on 30 October 2014. The interim order will be revised to specify that disclosure relates to the period commencing 30 October 2014 and ending on 23 March 2015. [13] My expectation would be that the material sought in category (i) could be provided by Origin Energy handing over a copy of the relevant content contained in Mr Costelloe's personnel file. The information is relevant and the request is not onerous, however the revised order will specify that the information is sought for a period commencing 1 November 2014 and 23 March 2015. [14] Origin Energy has agreed to disclosure in respect to category (l) on the condition that disclosure is limited to documents that disclose what was said between Mr Costelloe and Mr Asheidu about an issue in dispute between the parties to the appeal. In this respect I consider that Origin Energy is being unnecessarily difficult. The material sought relates to one specific meeting that was held between Mr Costelloe and Mr Asheidu. It is not unreasonable to presume that Mr Asheidu may have made a record of this meeting by way of file note, diary entry, email or some other format. It is very unlikely that any such record would extend beyond one or two pages. The effect of Origin Energy's position is that it should retain a right to redact or in some other way remove part of the content of Mr Asheidu's work. The conversation in question is directly relevant and Mr Costelloe is entitled to disclosure of any record of the conversation or of Mr Asheidu's reporting of the conversation. The interim order for category (l) will not be subject to revision. -- 6 of 10 -- 7 Origin Energy Objections [15] Origin Energy submits that both the requests for disclosure in categories (g), (h), (j), (n), and the request for the disclosure of contact information for six former Origin Energy employees, should be set aside. [16] In terms of category (g), Origin Energy is not correct in asserting that the regulator's statement of facts and contention at paragraph 77 concedes the line of argument foreshadowed by Mr Costelloe. The regulator simply concedes that the safety training took place. It is the content of the safety training which Mr Costelloe wishes to rely on. There is no need for any revision of the interim order in this regard. [17] Origin Energy objects to disclosure of material referred to in category (h) on the basis that the training session was not referred to in the appellant's statement of facts and contentions. The statements of facts and contentions do not establish explicit boundaries within which the appeal must be conducted. Determinations about relevance are not correspondingly explicitly restrained. Mr Costelloe wants the training notes because they may support a line of argument relevant to whether Origin Energy has complied with its own procedures in particular areas. I am satisfied that the material sought is relevant and the interim order will not be set aside. [18] In terms of category (j) Mr Costelloe seeks information disclosing how Origin Energy processed the complaint that he had made on 2 March 2015. Origin Energy submitted that the matters canvassed in this category were not matters in contention. Further, it was their submission that the matters canvassed were not relevant to the issues in dispute between the parties. The proposition that the matters canvassed were not matters in issue is specious at best. All that is conceded in the regulator's statement is that a complaint was lodged. The challenge to relevance is also weak in that it is made notwithstanding that Mr Costelloe says that he raised in his complaint matters going to his claim that his role changed when Ms Tams left the team and the issue of excessive workload. The management response to his complaint was clearly relevant. The interim order will not be set aside. [19] In category (n), Mr Costelloe sought disclosure of information relating to a performance review which was conducted on 27 February 2015. Information relating to the performance review is self-evidently relevant. Despite this Origin Energy submitted that some matters were not in contention and beyond that the material sought was not relevant. The basis for Origin Energy to suggest that some matters were not in contention related to the regulator's admission that the performance review occurred on 27 February 2015. The suggestion that matters may not be in contention is a specious proposition, while relevance is established by reference to Mr Costelloe's claim about reclassification and his failure to secure a pay rise. The interim order will not be set aside. [20] Origin Energy objects to the disclosure of contact details relating to six former employees on the ground that these details are not directly relevant to an issue in contention in proceedings. In this regard, Origin Energy relies on a reading of Mr Costelloe's statement of facts and contention which does not include reference to five of the former employees. In respect to the sixth employee, Mr Glasson, it was submitted that, by reference to paragraph 13 of Mr Costelloe's statement of facts and contentions, there was no relevant evidence that Mr Glasson might provide in the -- 7 of 10 -- 8 appeal proceedings. In my view the Origin Energy response places too narrow a construct on the disclosure request. Until such time as Mr Costelloe is able to speak to the designated persons, he may not be able to form a clear view on what evidence they may give in the proceedings. As such, it is understandable that he does not advance any definitive proposition in his statement of facts and contention which relies on the views of the named former employees. Origin Energy also argued that "personal contact details" could not be construed as a document which is relevant to an issue in contention between the parties. It also suggested that the contact details which it holds may not be current and that the appellant, of his own accord, could readily discover the details. [21] In the hearing of the objections on 16 November 2016, a discussion took place about the relevance of any evidence that might be given by the named former employees. My view on the matter does not differ from that which was expressed at the hearing (T1-16): "Well, what Mr Costelloe is saying is that these people are people that he interacted with in the workplace and these are people who will be able to give evidence to the effect that, following Ms Tams’s departure, Mr Costelloe’s role, duties or responsibilities changed significantly or substantially. That’s the evidence he is saying they will give which I would accept would be relevant." [22] In the end result I am not persuaded to accept the arguments advanced and propose to issue an order requiring Origin Energy to produce a document containing particular contact details of the six former employees. This information is relevant if it facilitates the giving of evidence by a person who may have information or views relevant to a matter in contention. [23] I accept the submission that Origin Energy should be given reasonable time to produce the material required to be disclosed. The final orders will require that the material be disclosed no later than 27 January 2017. Orders [24] Origin Energy Pty Ltd disclose to Mr Costelloe no later than 27 January 2017: (a) Any policy or procedure current at November 2014 which is relevant to the undertaking of higher duties by a senior draftsperson; (b) Code of Conduct Policy; (c) For the period from 1 November 2014 to 31 December 2014: Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton, or between Mr Claughton and Mr Fleming and/or Mr Asheidu, about any management consideration given to the consequences for the drafting team of the reassignment of Ms Tams, including whether Mr Costelloe should act in the lead role or be considered for permanent appointment to the lead role. In addition, a copy of an email sent by Ms Tams on 1 December 2014 in which she advises staff of her re-assignment and deals with how she will be replaced; -- 8 of 10 -- 9 (d) For the period 1 November 2014 to 23 March 2015: Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton which surfaced any concern by Mr Costelloe said that he was ill-prepared or ill- equipped to take on new or additional duties and responsibilities as a result of Ms Tams re-assignment; (e) For the period 1 November 2014 to 23 March 2015: Documents including emails, diary entries, notes and memoranda evidencing any communication between Mr Costelloe and Mr Claughton which canvassed difficulties that Mr Costelloe was experiencing relating to work load, the allocation of work to his drafting team, or surfacing his inability, or the inability of his team, to cope with their respective workloads; (f) For the period 30 October 2014 to 23 March 2015: Documents including emails, diary entries, notes, meeting minutes and memoranda evidencing any communication between Origin Energy management and Mr Costelloe, including Mr Costello's drafting team, providing information about a restructure, staff cuts, or outsourcing of work impacting on Mr Costelloe or the drafting team; (g) Training hand-outs, if any, provided to participants, including Mr Costelloe, at a two day safety course conducted at the Park Regis Hotel, North Quay in October or November 2014; (h) Training hand-outs, if any, provided by Ms Tams to participants, including Mr Costelloe, at a compulsory training session conducted by Ms Tams at Origin Energy's Head Office, Coronation Drive, in October or November 2014; (i) For the period 1 November 2014 to 23 March 2015: A copy of documents included in Mr Costelloe's personnel file which are relevant to any of the matters specified above including any emails, diary entries, file notes, meeting minutes and memoranda relating to Ms Tams reassignment and to concerns or complaints made by Mr Costelloe about his non- appointment to the lead draftsperson role, or about his workload, or his teams workload, or any inability to cope with the work allocated to him or his team; (j) A copy of Mr Costelloe's complaint to HR on 2 March 2015 and a copy of emails, diary entries, file notes, meeting minutes and memoranda evidencing any communication between HR and other management about the appropriate response to the complaint; (k) Documents including emails, diary entries, notes, meeting minutes and memoranda relating to meetings, conversations or phone calls between Mr Costelloe and Mr Claughton on 12 March 2015, 16 March 2015, 20 March 2015, and 24 March 2015; -- 9 of 10 -- 10 (l) Documents including emails, diary entries, notes, meeting minutes and memoranda relating to a meeting between Mr Costelloe and Mr Asheidu on 23 March 2015; (m) Records or minutes of drafting team meetings convened by Mr Claughton in January and February 2015 in which Mr Costelloe participated; (n) Documents relating to Mr Costelloe's performance review on 27 February 2015; (o) Contact details in the form of either a postal address or an email address for Anastasia Moir (or Gilmour); James Nunn; Ian Glasson; Rene Carcoma; Leon O'Brien; and Grant Radcliffe. -- 10 of 10 --