CREATE Foundation Ltd v Workers' Compensation Regulator [2016] QIRC 124

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: CREATE Foundation Ltd v Workers' Compensation Regulator [2016] QIRC 124 PARTIES: CREATE Foundation Ltd (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2014/357 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 22 November 2016 HEARING DATES: 27 May 2015 23 to 27 May 2016 14 September 2016 (Appellant's Submissions) 12 October 2016 (Respondent's Submissions) 16 November 2016 (Appellant's Submissions in Reply) HEARD AT: Brisbane MEMBER: Industrial Commissioner Thompson ORDERS: 1. The Appeal is dismissed. 2. The Decision of the Regulator of 2 December 2014 is confirmed. The claim is one for acceptance. 3. The Appellant is ordered to pay the Regulator's costs of and incidental to the Appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Decision of Workers' Compensation Regulator - Appellant bears onus of proof - Standard of proof - Balance of probabilities - Witness evidence - Worker sustained a personal injury - Personal injury arose out of or in the course of employment - Employment was the major significant contributing factor - Unreasonable management action taken in an unreasonable way - Appeal dismissed - Decision of Regulator confirmed - -- 1 of 75 -- 2 The claim is one for acceptance - Appellant to pay Regulator's costs of and incidental to the Appeal. CASES: Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 131, s 141, s 550 Australian Securities Investment Commission v Rich [2005] 218 ALR 764 Boyd v Q-COMP (2005) 180 QGIG 1129 Q-COMP v Glen Rowe (2009) 191 QGIG 67 O'Brien v Q-COMP (2007) 185 QGIG 383 Vesna Misevski v Q-COMP (C/2009/29) - Decision <http://www.qirc.qld.gov.au> Svenson v Q-COMP (2006) 81 QGIG 629 Millroy v Workers' Compensation Regulator [2016] QIRC 050 Karen Bowers v WorkCover Queensland (2002) 170 QGIG 1 Davis v Blackwood [2014] ICQ 009 WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93 Parker v Q-COMP [2007] QIC 25 State of Queensland AND Q-COMP (C/2009/42) - Decision http://www.qirc.qld.gov.au Merle Prizeman v Q-COMP (2005) 180 QGIG 481 RACQ Operations Pty Ltd v Q-Comp (2003) 174 QGIG 824 CS Energy Limited v Q-COMP [2008] QIC 57 Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 Brown v Cashman [2013] VSCA 122 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision http://www.qirc.qld.gov.au State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne [2003] QIC 118 SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision <http://www.qirc.qld.gov.au> APPEARANCES: Mr R. Green, Counsel, instructed by Ferguson Cannon Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent. Decision [1] A Notice of Appeal was lodged with the Industrial Registrar on 22 December 2014 by CREATE Foundation Ltd (Appellant) (CREATE) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 2 December 2014. -- 2 of 75 -- 3 [2] The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation from Claudia Whitton (Whitton) and substitute a new decision to accept the application in accordance with s 32 of the Act. [3] The hearing of the Appeal commenced on 27 May 2015 and in the course of taking evidence from the first witness concerns emerged regarding the non-disclosure of material by the Appellant pursuant to a Further Directions Order issued on 15 January 2015. Agreement was reached between the parties that hearing dates scheduled for that week be cancelled and that the Appellant undertake further disclosure of relevant documentation. [4] Following a lengthy period of time, issues around disclosure were satisfactorily resolved and subsequent hearing dates were set for the week commencing 23 May 2016. Relevant Legislation [5] The Legislation pertinent to this Appeal is s 32: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if … (b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the 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 Regulator or an insurer in connection with the worker's application for compensation." Nature of Appeal [6] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant. Standard of Proof [7] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities". Evidence [8] In the course of the proceedings, evidence was provided by ten witnesses. -- 3 of 75 -- 4 [9] The Commission in deciding to précis the evidence of the witnesses and submissions notes that all the material has for the purposes of this decision been considered in its entirety. Witness Lists [10] The witnesses for the Appellant were:  Jacquie Reed (Reed);  Kerri Challenor (Challenor);  Joseph McDowall (McDowall); and  Zoe Gill (Gill). [11] The witnesses for the Regulator were:  Whitton;  Deidre Bushett (Bushett);  Judi Pears (Pears);  Dr Rob Ruberry (Dr Ruberry);  Brian Devlin (Devlin); and  Phillipa Ahern (Ahern). Appellant Reed [12] The evidence from Reed was given over a number of days having commenced her evidence-in-chief on 27 May 2015. [13] Reed was the Chief Executive Officer (CEO) of the Appellant organisation having joined in 2007. It was a not-for-profit venture, managed by a Board of Directors with National Offices in Sydney and Brisbane and other offices in every State and Territory. The role of the organisation was to primarily advocate for children and young people in care with funding coming from both government and the corporate sectors. There was a national leadership team to whom other managers and co-ordinators reported to and prior to 2013 a human resource co-ordinator was employed however that function was now outsourced. [14] Reed's husband (McDowall) was a member of the Board of Directors (as was she) and in June 2013 the Board had appointed him to the position of Executive Director of Research although that was not a formal role and he was not considered a member of staff. [15] Whitton commenced with the organisation in April 2013 and was required to undergo a six month probationary period consistent with the requirements of the Modern Award. Following the probationary period there were to be bi-monthly supervision meetings of which was used to "catch-up" with Whitton in early 2014. There was an informal "catch-up" structure in place in 2013 where she caught up with Whitton and it was her practice to document all of those "catch-up" sessions. With regards to Whitton's engagement, Reed, McDowall and Challenor were on the selection panel -- 4 of 75 -- 5 with it being a unanimous decision to offer her the position as she had presented as "highly skilled, very charismatic, engaging and confident". [16] In the first few months of her employment Whitton seemed to take longer to get her head around things with Reed frequently required to explain "really minor details" to her and appearing at times to be very distracted. Reed was aware Whitton had a lot happening in her home life due to her being an "over sharer" regarding her family situation. Reed had been informed by Whitton of issues in her private life that included:  suffering a mental condition of clinical depression for which she was being medicated (and had been for a number of years);  had concerns about her daughter who had significant mental health issues; and  her mother was in a nursing home, later to go into palliative care following a fall. The organisation had been as supportive as they could be in the circumstances and on one occasion due to Whitton being "so distressed" they had offered her a cab home as they felt she was not safe to drive. [17] It was difficult to gauge the effectiveness of Whitton in her first three months as a national manager and at the six month stage issues with her performance "sort of increased a bit". Those issues included:  delays in writing ministerial correspondence for Reed;  not meeting other deadlines; and  not proactively engaged with the organisations stakeholders. The level of concern with regards to Whitton's progress was described by Reed as being "quite low" in the first six months of her employment although she had flagged with Challenor it was not working out as expected. [18] After the initial six month period it was Reed's position that Whitton was not responding to the "catch-up" sessions and she sought suggestions from Challenor to assist with the situation. Reed had referred Whitton to a person who had acted as her mentor in an effort to improve the situation. After November 2013 she had the need to talk to Whitton about two incidences regarding breaches of confidentiality involving Bushett and Whitton and it was at this time Reed noticed a "bit of a change in the relationship". [19] In October 2013 Gill was seconded to assist Whitton, specifically with arrangements regarding a conference which Whitton was organising and had felt uncomfortable with that task. At around that time McDowall was part of Whitton's team undertaking some tasks associated with the team as some of the staff from the team had elected to leave the organisation. Whitton at this time expressed no concerns about her workload although there were repeated incidences of failing to meet her deadlines. [20] In March/April 2014 it was Reed's view that Whitton was well aware of the work issues because she was very self-depreciating, knowing she was not "getting the job done" and was annoyed at not being able to fulfil elements of her role. Reed had been -- 5 of 75 -- 6 hoping that Whitton would ride out the difficulties and settle into the role as she had potential and had interviewed well for the position. Further prior to being offered the position a "psych" evaluation and referee check had been carried out without any concerns being identified. [21] In 2014 things started to go a little "pear-shaped" and a performance process was commenced with Whitton. A document was prepared by Reed for the purposes of identifying supervision of Whitton by way of an interactive process. The document (dated 4 February 2014) was tendered in the proceedings [Exhibit 2] and recorded details of a meeting with Whitton on that date. [22] Reed's evidence included referencing the content of extracts from notes taken by her in the course of exchanges with Whitton during her employment. The documentation [Exhibit 6] was 88 pages in length and highlighted topics that included:  time off (for Whitton) to attend appointments;  focus on conference supports;  letter to Minister overdue;  is she (Whitton) clear on WA business plan;  concern - work not getting finalised - not flagging when there are problems;  repeating information many times;  needs to see projects through - take ownership;  fortnightly meetings with McDowall;  are additional supports required; and  acknowledge lack of staff - role also impacted on staff at conference - strong team. [23] At the end of March 2014 following a conversation with Challenor it was decided that rather than go directly into a disciplinary process, there would firstly be a supervision meeting at which Whitton would be advised she could have a support person present. Challenor had been providing advice about Whitton for some time and consideration was given to material that included a CREATE Foundation Performance Guideline [Exhibit 8] and a Jobs Australia Disciplinary Action and Termination of Employment Guide [Exhibit 9]. [24] A meeting was held with Whitton on 4 April 2014 who had been informed by email that the purpose of the meeting was about performance issues and offered the opportunity to have a support person present. The content of the email (dated 28 March 2014) included: "Further to the email calendar invite that was just sent. A supervision session has now been scheduled for next Thursday April 3 will cover performance related issues rather than focus on the work in play (another meeting will be organised to do that). We have discussed a variety of performance related issues generally in our catch up sessions, and some were covered in our last supervision. Whilst I acknowledge that your commitment is high, I think that we now need to discuss these areas of concern more formally. -- 6 of 75 -- 7 In particular I want to discuss with you the following: 1. Quality of reports/submissions 2. Timeliness of work and deadlines 3. Advocacy effectiveness You are welcome to have a support person at the meeting." The reason for bringing the supervision meeting forward was to use it as an additional step before going to a performance process. [25] Correspondence was generated by Reed on 2 April 2014 to Bushett who was to attend the meeting with Whitton in which Reed stated: "Despite my assertion that I want the meeting to be informal (as I am not jumping to make the assumption she wants to go down the Performance Development path), technically, this is actually part of the disciplinary process. This is because I have set it up as one, by letting her know the outline of concerns, and also advising her she can have a support person. I am raising concerns, and have examples to substantiate what I am saying. She will be given an opportunity at this meeting to defend herself, or offer a rationale for her performance being below what is expected. Hence me making this a formal supervision meeting and offering a support person. So whilst I did indicate that I want it to be reasonably informal this relates only to the sense that I want to offer her an opportunity to consider before taking a course of action. I will give her time to reflect on her capacity and ability to be able to meet the requirements of the role (which I will outline for her at this meeting) over the week end, or to discuss alternative options with you." [26] Bushett according to Reed had expressed that she was feeling uncomfortable about the process to be embarked upon which surprised Reed who wondered if Bushett's concerns related to "an issue with her own competence at this type of meeting". Advice was received from Jobs Australia in which they expressed some concern about the holding of an informal meeting to essentially discuss with an employee whether they wished to enter into a formal performance management or consider their options for ongoing employment. [27] The meeting with Whitton was held on 3 April 2014 in which Reed outlined a range of concerns regarding her performance giving "some examples and what-not at the time". Whitton was accompanied by a support person at the meeting and following the meeting correspondence under the signature of Reed was provided to Whitton which in effect stated the following:  confirmation of areas of concern as advised in the discussions held on that day as: - quality of reports/submissions; - timeliness of work and deadlines; and - advocacy effectiveness. The concerns were said to have followed previous discussions held during "catch-up" meetings and formal supervision on 4 February 2014. -- 7 of 75 -- 8 [28] Whitton was directed to attend a formal disciplinary meeting to be held on 7 April 2014 and given the following information regarding the possible meeting outcomes: "If we are able to satisfactorily resolve the concerns there may not be any need for further action. However, if we are not able to satisfactorily resolve the concerns, the outcome of this meeting may be disciplinary action, which could include a first written warning. You are invited to have a union or other personal representative present at the meeting. Please advise today if this is not sufficient time for you to arrange support." [29] In terms of Reed's aspirations for the first meeting she had hoped that Whitton may due to her personal circumstances sought to "take a chunk of time off, a three month period" or failing that there were options of a performance plan or Whitton dropping to a casual. Had Whitton taken up a performance plan there would be no change to the reporting lines between Whitton and herself or the way in which Reed undertook her duties. [30] Prior to the second meeting Reed had prepared a draft performance plan [Exhibit 21] and recalled she had relied on Bushett to provide a copy of the plan to Whitton but her evidence was in the course of the second meeting it appeared Whitton's support person (Devlin) was not aware of the document. Reed told Devlin that the idea was to have a six month plan of improvement and there would be an opportunity for involvement in "shaping up" the plan. [31] There was a third meeting held on 10 April 2014 attended by Reed, Whitton, Devlin and Bushett where an opportunity was to be provided to Whitton to inform them how she could improve her performance and to raise with her an outline of their concerns. At the meeting there was quite a lot of talk about the performance plan with Whitton describing the passion she had about work in this area with Devlin and Whitton confirming certain aspects of Whitton's experience and acknowledging she needed more. On the conclusion of the meeting Reed committed the information provided would be considered and that there would be no further disciplinary action. It was reported to Reed that Bushett had been spoken to about entering into a deed of release and Whitton receiving a payout. [32] In the period between the first and last meetings Reed was not made aware of any issues Whitton may have had with her with those meetings being an opportune time to canvas such issues. The whole point of the meetings was to identify what CREATE could do to support Whitton to meet her goals. [33] Whitton provided correspondence to Reed dated 11 April 2014 [Exhibit 25] which Reed evidenced made her actually feel sick and came as a bit of a blow following the way in which earlier meetings had transpired. The content of the correspondence included the following passage: "I write in response to the options you outlined in the meeting I had with you, my AMWU representative Brian Devlin and Deidrie Bushett, CREATE Foundation HR Coordinator at 9:15am Thursday 10th April 2014. -- 8 of 75 -- 9 I have, with my family, carefully contemplated the options you put forward and the associated rationale you presented with each. I have given strong consideration to my firm belief from the meeting on Thursday that your view is that the organisation and you will benefit if I were to agree to leave CREATE Foundation. I must strenuously disagree with this view. However, being realistic, I wish to put forward a counter proposal that would enable me to move on even while disagreeing with the view outlined above. My proposal is that instead of a package involving a notice period and an incentive payment, the package should include the following: 1. A straight incentive of 3 months' salary 2. The mutually agreed date of my resignation from CREATE be 5pm, Thursday 17 April 2014. This date will allow both parties to ensure that the deed of settlement is appropriate to the circumstances and the needs of both parties 3. The payment of the total incentive shall be made within 2 days of resignation 4. A Statement of Service will be provided with the payment 5. Training already booked and paid for will be undertaken at no cost to myself 6. To enable finalisation of the deed I will be provided with the CREATE Foundation proposed deed of settlement on Monday, 14 April at 4pm so that I am able to consult with my union and other advisers in relation to the finalisation of the document in accordance with the appropriate legislation." Whitton's response was in the face of what Reed described as "a very collegial relationship" in the workplace. [34] Whilst employed in her role there were times when Whitton had raised that she did not have a full complement of staff which was accommodated by the organisation being flexible about certain dates when pieces of work need to be completed. In terms of particular demands other people, including McDowall and Gill were brought in to help out in those circumstances. Whitton had recruited a number of people to fill vacant positions and never raised issues with Reed about those particular staff. In the case of Gill she had been seconded to assist Whitton for a conference that was held in November 2013. [35] Over the time Whitton was employed by CREATE she had a number of personal issues in her life that impacted on her ability to attend her employment or to her employment duties. Those issues related to her daughter and elderly mother and required Whitton to have time off, often at short notice. There were at times when her daughter would attend the office which resulted in Whitton leaving the office with her. The organisation was required to "re-jig" timeframes and change meeting times to meet Whitton's absences. In addition she would often be away from the office to attend to personal appointments including:  meditation and self-help;  physiotherapy appointments; and -- 9 of 75 -- 10  naturopath appointments. Whitton would often say words to the effect "I'll come in at 10 or something" so she could make it as least disruptive as possible. The organisation did not raise issue with her about these matters as they were compassionate and supportive towards her. A diary system was operated on Outlook which enabled the leadership team to see each other's diary to assist in the making of appointments. This did however not include personal attendances and engagements. In March 2014 Whitton had Carer's Leave approved to provide support to her mother who had been admitted to hospital following a fall. [36] Under cross-examination Reed confirmed that McDowall was on the CREATE Board of Directors, Executive Director of Research and also her husband but technically not an employee. In terms of remuneration he gets paid a fee on occasion where he may do "fee for service" work commissioned by the Board with most of his work being voluntary. On becoming a couple they had disclosed their relationship to the Board which resulted in a range of governance arrangements being put in place [Transcript p. 2-48]. Some three months into Whitton's employment she had spoken to Challenor about performance issues with Whitton later undergoing her six month probation. On 4 February 2014 Reed conducted a supervision session with Whitton and notified her in writing on 28 March 2014 of performance issues even though Reed did not consider it was part of a performance process at that time. Whitton was cut some slack at the time due to her personal circumstances [Transcript p. 2-49]. In respect of the meetings held in April 2014 with Whitton the dates of meetings were confirmed as 3, 8 and 10 April [Transcript p. 2-53]. [37] Whitton was employed on 22 April 2013 as the manager of the Policy and Research Unit which had the normal staff arrangements of two full-time officers and one part-time officer, although in reality there were two full-time equivalent employees under her at the time [Transcript p. 2-54]. McDowall had assisted Whitton but he was not in the team as a policy officer under her direction [Transcript p. 2-55]. Gill was seconded to assist with work in respect of a national conference. Whitton had also requested extra support around policy issues for which Gill was considered equipped to undertake that role [Transcript p. 2-56]. Reed conceded there were months where Whitton did not have a full complement within her team and probably had a full team for about six months [Transcript p. 2-56]. Reed claimed to have provided Whitton with a high level of support when her staff numbers were down [Transcript p. 2-57]. [38] Reed accepted there was a difference in her giving a manager a direction as to what she wanted done as opposed to raising a concern about performance but in the case of Whitton who had a lot of issues, Reed had raised concerns "sensitively and softly" [Transcript p. 2-64]. Reed did not accept she was a micromanager and would give managers the freedom to make decisions within the confines of their areas of responsibilities [Transcript p. 2-65]. Reed accepted a lot of the concerns she had with Whitton were "hardly earth-shattering matters" but there were a lot of low-level issues with a very senior member of staff that were just "going on and on but not getting any better" [Transcript p. 2-66]. It was the case with Whitton of having to ask a thousand questions to see where she was up to and often the work was not actioned at all. This occurred in the first six months of her employment [Transcript p. 2-68]. -- 10 of 75 -- 11 [39] Reed was questioned regarding Whitton's probation appraisal signed off by Reed on 31 October 2013. The appraisal included amongst other things the following appraisals scored under an identified Ratings Index. Ratings Index (1) Failed to demonstrate many aspects of the key results in this area (2) Limited success Major performance issues in several key areas requiring monitoring for improvement (3) Satisfactory Meets basic performance indicators No major performance gaps are evident (4) Competently meets criteria Demonstrates ability to meet the criteria to a high standard (5) Exceeds expectations Excels in this area of work Key Result Areas Comments Rating 1. Team leadership. The team is engaged, cohesive, highly functioning and achieving its results. Evidence is feedback from team members and the results achieved by the team. 2. Strategic contribution. There is evidence that the contributions of the Policy and Research Manager have had an influence on the strategic direction of the organisation. 3. Strategic contribution in "non-portfolio" areas. There is evidence that the Policy and Research Manager has entered into strategic debate at the senior executive table and made meaningful contributions in areas other than policy and research. 4. Personal achievement. There is evidence that the Policy and Research Manager has achieved his or her action plan objectives, even when they represent a stretch target. 5. Achievement of staff. There is evidence that the Policy and Research Manager has been effective in coaching and encouraging staff to meet their action plan objectives. Evidence will be feedback from staff and the achievement of goals. 6. Relationship management. There is evidence that the Policy and Research Manager has been effective in developing effective and committed relationships with stakeholders in the sector. The evidence will be that stakeholders have increased their support of and contribution to the success of CREATE Foundation. … Additional Factors 1. Time management 2. Attitude 1. Claudia's team over the last 6 months has changed and new members have been recruited. Unable to effectively gauge this key result area. 2. Claudia is developing an understanding of the organisations strategic direction. 3. Claudia is a valued member of the Leadership Committee and has contributed fully in strategic debate. 4. This key result area is hard to gauge in the timeframe. Claudia is developing an understanding of the priorities within her work area and the Action Plan goals. 5. Claudia appears to have developed positive working relationships with the team. However, it is not clear if the team are clear about their objectives due to the change in staff. 6. Claudia is actively engaged with the sector and has proactively sought new relationships with key stakeholders. … 1. Claudia has encountered several staff changes impacting on her workload. Time management is not an issue that has been noted to date. 2. Claudia is professional, experienced and committed to CREATE. NA 3 4 3 NA 3 3 5 -- 11 of 75 -- 12 Claudia is a valued member of the Leadership Committee and has demonstrated a positive and solutions focussed attitude. [40] Reed's approach to the probation appraisal was that she had taken "a strengths-based approach to support a staff member who I considered to be struggling, but had great capacity". It was her intention to encourage her to perform and not write out a "completely negative" probation review [Transcript p. 2-71]. In retrospect the document was described as "soft" and was a real learning experience for her in to the future [Transcript p. 2-72]. Reed gave evidence of informing Whitton at the time of the probation appraisal that she believed she was struggling but was of the belief she could turn it around however was unable to explain why these comments were not included in the document [Transcript p. 2-72]. On the proposition that the probation assessment did not reflect the level of concerns contained in Reed's diary regarding Whitton's performance, her evidence was "I'd say they are reflected, but in a very soft way" [Transcript p. 2-77]. Reed on 13 November 2013 signed correspondence in the form of Whitton's probation being successful, confirming her ongoing employment effective from 22 October 2013. In the final paragraph Reed indicated it had been "a pleasure working with you" which according to the evidence had been added on Bushett's suggestion [Transcript p. 2-79]. [41] The meeting held on 4 February 2014 with Whitton according to Reed was not represented as a performance review but had some elements of a performance review although words to that effect had not been relayed to Whitton [Transcript p. 2-82]. In this meeting it was acknowledged by Reed she identified to Whitton a performance issue in terms of the strategic contribution in "non-portfolio" areas [Transcript p. 3-5]. In the record of the supervision meeting dated 4 February 2014 [Exhibit 2], Reed had recorded: "Claudia is new to the organisation and is in a period of adjustment and has made it a priority to understand the business. During this time Claudia's progress was impacted by having a period of time with no team members". There was no mention in the document of her earlier evidence that when Whitton had a full complement of staff, it still made no difference to her performance [Transcript p. 3-7]. Reed insisted at around 4 February 2014 and earlier she had told Whitton in the course of discussions between the two that she was managing her performance on a number of issues [Transcript p. 3-11]. [42] Reed had an issue with Bushett who in February 2014 had divulged highly confidential information to Whitton who went on to share the information with others which became a double-barrelled issue of breaching confidentiality [Transcript p. 3-17]. Enquiries were made of Challenor about Bushett's breaches of confidentiality and was it something that needed to be looked at not to continue her employment past the probation review period. In the end it did not become an issue as Bushett left the employment [Transcript p. 3-18]. [43] On 7 March 2014 Reed sent correspondence to Challenor in which she denied in evidence was a complaint about Whitton's time off due to her mother's health issues [Transcript p. 3-23]. Reed had taken into account Whitton's health and family issues but made the point there was only so much an organisation could be expected to take -- 12 of 75 -- 13 [Transcript p. 3-24]. Reed accepted that correspondence to Whitton from her on 28 February 2014 did not alert her that her performance at that time was being monitored [Transcript p. 3-25]. [44] The meeting to be held on 3 April 2014 was a supervision meeting but also to cover performance issues was advised by Reed in an email but there was no accompanying documentation regarding the three subject areas identified in the email. No particulars were given to Whitton prior to the meeting nor was there any request from Whitton prior to the meeting for any documentation [Transcript p. 3-32]. Reed accepted that prior to the meeting with Whitton on 3 April 2014 she had requested Bushett to prepare certain documentation which included a warning letter and information about termination of employment as well as having the first option of no further action. There was also a blank performance improvement plan with all documents provided at a time when Whitton had not been made aware of the precise allegations or made any response to such allegations [Transcript p. 3-35]. [45] The first meeting (3 April 2014) whilst not a disciplinary process was to be used to forewarn Whitton as advanced warning they were going down the "disciplinary road". CREATE had enough to go to a disciplinary process but Reed wanted to take an extra step in the process. If taking the step was wrong, then it was wrong according to Reed [Transcript p. 3-37]. Reed agreed there had been a discussion with the Australian Capital Territory Children's Commissioner about him working for the CREATE but said it was an absolute "red herring" to suggest she wanted to pay him with the monies they might otherwise have used to pay Whitton [Transcript p. 3-42]. [46] The meeting held on 8 April 2014 was attended by Reed, Bushett, Whitton and Devlin and as required under Jobs Australia guidelines, Reed informed the meeting that it was a formal disciplinary meeting called to discuss performance. Reed raised a number of examples of Whitton's performance over a period of time but had no recall of mention being made regarding the probation report of November 2013 [Transcript p. 3-44]. Reed put to Whitton that she had misled "us" in her application for employment regarding her experience in policy and research [Transcript p. 3-45]. Reed denied that she inhibited Whitton responding to the allegations that were being made against her [Transcript p. 3-46]. The next meeting was held on 10 April 2014 and "kicked off" with Whitton basically letting them know what she wanted as she had been left with no option but to resign. Reed gave evidence she attempted to persuade her otherwise and that her options should be discussed with Human Resources (HR) [Transcript p. 3-46]. Reed did not accept she had micromanaged Whitton or that she undermined the work of the management team or spoke disparagingly about other staff members [Transcript p. 3-47]. Reed had due to Whitton being unable to complete a task and found it necessary to sometimes delegate the work twice [Transcript p. 3-48]. [47] An appointment of an Operations Manager was made by CREATE on 31 March 2014 (Ahern) who subsequently resigned her position on 2 May 2014. Ahern had informed her that she had been bullied by Bushett and was fearful of her job. In addition Ahern had complained about Rob Martin (Martin) who she claimed had misled the organisation at the leadership level [Transcript p. 3-48]. As the allegations were taken seriously by Reed she arranged for Ahern to accompany her to Sydney to meet the Chairman of the Board. McDowall who was present spoke to Ahern about speaking to the Board which Reed said was "absolutely declined" by Ahern [Transcript p. 3-49]. On the suggestion that Reed had concerns that Ahern may have been critical -- 13 of 75 -- 14 of her if she had the chance to speak to the Chairman, Reed said she was open to feedback and it would not have been an issue for her. Reed was absolutely gobsmacked by the information Ahern had later provided to WorkCover [Transcript p. 3-50]. On the proposition she did not trust Whitton, Ahern and Bushett, she described their tenure with CREATE as "like a perfect storm" and was critical of their conduct whilst employed with the organisation. It was further described as "just very messy". Reed indicated her management practices were reasonable [Transcript p. 3-51]. [48] In re-examination Reed gave evidence that in addition to holding a Bachelor of Social Sciences and a Governance Certificate she had completed a number of small courses which addressed issues "like staff performance and management". CREATE had developed a rigorous staff development program to help reduce staff turnover however turnover continues to occur in low level positions where there is no career path. Reed would only intervene in management matters if things are late and of a poor standard and likely to effect the organisation. The standards expected are the "industry norm" and clearly detailed in their organisational plan. Key Performance Indicators (KPIs) are the driving force for the Board and if a report is not provided on time Reed is held to be in breach of her contract. Reed had no recall of having to intervene with the performance of a manager regarding KPIs but sometimes would intervene if it was around a staffing personality issue, conflicts with staff or if people were unsure about their role. The intervention involving Whitton was not normal and there had been no other time as difficult as that. Usually her intervention is overwhelmingly positive and welcomed by the manager. [49] In terms of the three meetings involving Whitton it was Reed's intention for the first meeting to be a precursor to outline her concerns with the second meeting being to hear a response from Whitton as to how she was going to turn it around or to indicate she was going to take some time off. At the same time she was hopeful Whitton would go down a performance management route. The third meeting was about implementing the performance management plan that was ready to go. The emails from Bushett leading up to the first meeting made mention of a first and final warning which was not something Reed was comfortable with as it was not in the Jobs Australia guidelines. Bushett's role in the meeting was to take the minutes and undertake the same role at the second meeting. Reed did not recall Bushett being present at the third meeting. [50] The response from Whitton to the email of 28 March 2014 caused Reed some surprise in that she expressed the email was "unexpected and concerning" given Reed's involvement in having repeatedly discussed the issues in recent "catch-ups" and supervision meetings. There was no reluctance shown by Whitton to attend the scheduled meeting and only raised having a HR person to support her. Reed had issues regarding the quality of Whitton's work not meeting the standards or established templates of the organisation. McDowall was said to correct "all of our work" while Reed relied on documents to be "good grammar or whatever". There is an editorial committee in the organisation which McDowall is on and in respect of editorial control across the organisation he has the final say. [51] The role occupied by Whitton at the time of her employment is currently supported by two, four day-a-week workers and at the time of her employment there were essentially two, five day-a-week workers. In the course of Whitton's employment the first time her two workers team was down in numbers occurred -- 14 of 75 -- 15 in July and August 2013 with also a person down in December 2013. During this time Gill, Martin and McDowall provided some support for her. Whitton as a member of the leadership team was not eligible to access time off in lieu for extra hours worked but had access to six "doona" days a year whenever she liked, no questions asked. [52] On her relationship with McDowall it was disclosed to Whitton at the time of her initial interview and there were no issues expressed by her. On the work undertaken contractually by McDowall, he generally charged $50 per hour which was about half the normal consultant rate. Reed had no awareness of any circumstances where her relationship with McDowall impacted on her role in the organisation. Reed as the CEO has the final say on how a research project will go and whilst this has caused tensions within their marriage it has not come into the work environment. [53] Prior to the meetings with Whitton she had taken into account a "cluster of things" relating to Whitton's personal circumstances some of which had, according to Whitton, caused her some stress. [54] Reed gave evidence about the period leading up to the meetings in April 2014 with Whitton relying on documents not put during the evidence-in-chief which caused concern to the Regulator in terms of process. Further cross-examination [55] Reed was taken to an email she had forwarded to Whitton on 12 February 2014 [Exhibit 40] that had been tendered in the course of her earlier re-examination. Reed confirmed it was a good example of the sort of directions she would give Whitton and other staff. The content of the email included: "The YAP Guideline is really shaping up really well. I have no content problems but the document will need a very thorough edit as I have two Board Members who will go over it with a fine tooth comb. In particular, have a look at the sentences after the dot points and ensure that they don't all start with the same word." [56] Reed was taken to a further email that was included in Exhibit 28 where Whitton had apologised for a delay in providing a report on 27 March 2014, which was a good example of Whitton being late with work, according to Reed. It was suggested that another staff member Cazz Wingrave (Wingrave) had responsibility for the document in question however Reed was unable to recall if that was the case but thought there was some discussion about Wingate contributing something to that report [Transcript p. 4-24]. Reed doubted that she would have given Wingate the responsibility for the report in question as she would have been unreliable due to her personal circumstances at the time [Transcript p. 4-26]. [57] Reed was taken to an email from Reed to Challenor [Exhibit 41] dated 7 March 2014 and asked whether the following commentary in that email reflected a sense of anger around Wingrave's leave which Reed denied was the case [Transcript p. 4-27]: "Cazz is now on 3 months emergency leave and there are a whole range of issues that have arisen since she left us to go on the leave, including that she has not done a handover, and cancelled 4 meetings to do the handover (one of which -- 15 of 75 -- 16 was onsite in Melbourne). Her direct reports and I have struggled as she has not given them a handover (despite lots of assurances that she would) either, she also did not hand in her computer; which HR are now following up with her about as many of the files are not kept on shared drives and are only on her laptop. Quite unsatisfactory. I know her personal situation is just awful and her sister passed away this week so I fully appreciate that this was a challenge for her but she left us 3 weeks ago to take the leave. Anyway, would be good to get your opinion about how to handle this when she is back, and of course address the other issue of her failing to execute tasks which now her direct reports are ploughing through…" [58] Reed's evidence was she did not have an issue if someone did not make a deadline as she was always happy to accommodate as best she could. In Whitton's case she had not come to Reed when she was late with work [Transcript p. 4-28]. With regards to Gill she had applied for a policy position in the early days and whilst she was unsuccessful they thought she was "fantastic" so they gave her the program position. She may have applied for a policy position sometime later on in her employment. Reed had never expressed a view that Gill was not up to doing policy work and her evidence was that she "had very little to do with Zoe on a day-to-day basis" [Transcript p. 4-28]. Challenor [59] Challenor a General Manager of Human Resources for National Transport Insurance had known Reed since early 2013 and was familiar with her role at CREATE. In 2013/2014 Challenor acted as an advisor to Reed, primarily as a paid advisor but also undertook some pro bono work. Her position was arranged through the Chairman of CREATE for whom Challenor worked for in HR when he was CEO of Lumley Insurance. [60] Her original involvement with CREATE came at a time when she was not working in a full-time capacity and the Board thought it would be good to provide some support for Reed as CREATE did not have a HR function. There was no formal engagement with her involvement being on an ad hoc basis dependent on Reed's perceived needs at the time. The role was completely reactive with her first task to review HR policy that had been written by a previous HR person. [61] Challenor was a member of the interview panel that offered Whitton her employment with CREATE and in that role provided advice on her suitability post the interview. Her next involvement in terms of Whitton's employment occurred three to four months from engagement when she provided both written and oral advice following some conversations with Reed. The written advice was in the form of emails to Reed and dealt with issues raised that included Whitton was:  not completing work in a timely manner; and  not completing work with the level of accuracy required. The advice given would have been to be fair and reasonable at all times and not go too hard because the desire was for Whitton to be successful in her role, as it was with all the people employed. Reed was advised to have clear conversations with her, to set clear objectives in writing and to follow up when they were not completed to Reed's standard. Whitton had to clearly understand what she had to do and what was -- 16 of 75 -- 17 expected of her. The advice was provided over a period of time described by Challenor "as longer than a month". The contact had been by mainly telephone but also email. To the best of Challenor's knowledge there were no occasions where Reed had not followed the advice she had given. On Reed's management approach she held views based on what Reed told her and had no direct knowledge regarding this issue. [62] Under cross-examination it was Challenor's recall that in the period between mid-June 2013 and Whitton's departure in 2014 she had received more than 10 but less than 20 emails from Reed [Transcript p. 3-89] although later acknowledged she was speculating but it would not have been less [Transcript p. 3-90]. Challenor apart from the job interview with Whitton never again spoke to her in the workplace [Transcript p. 3-90]. McDowall [63] McDowall described his circumstances as being officially retired but working as the Executive Director Research at CREATE and also a visiting fellow at the Queensland University of Technology. He joined the Board of CREATE in 2008 as a director and in 2012 was appointed to his current role. In 2012 he and Reed were married and prior to that occurring the matter was the subject of consideration by the Board who have adopted a watching brief reviewing their situation each year. [64] The function of the Executive Director Research role was described as a "last port of call" for any material produced by CREATE that went into the public domain and required a final sign off by him. There were cases for which editing was required so that the documentation met the highest standard possible that would be comparable to peer-reviewed publications. The documentation could not have:  spelling mistakes;  grammatical errors;  inappropriate referencing; and  unfinished sentences. CREATE had adopted the American Psychological Association's (APA) style guide which set the standard to which the organisation aspired. [65] McDowall would work with policy people when they were doing their initial drafts to at least guide them in the content and at the end of the process go through the editing, to show them what needed to be done and then debrief afterwards about any corrections or suggestions for improvement into the future. In terms of remuneration he did not receive a fixed salary but if a big project came up that he was commissioned to do a memorandum of agreement which would go to the Chair of the Board to authorise and generally an amount is agreed to an appropriate amount. The rate he received was not the commercial rate because CREATE was a charity and he gave them a discount. [66] Most of his work was undertaken in Brisbane but he did travel to Sydney and other States to assist the local teams in presenting material to the relevant governments. Whilst he interacts with the Brisbane National Office based staff on a daily basis, he would only talk to the Queensland staff fortnightly. About 90 per cent of his time was spent with various managers. -- 17 of 75 -- 18 [67] In April 2013 Whitton was appointed the Policy and Research Manager following a process that involved McDowall as a member of the interview panel responsible for her appointment. Throughout the early period of Whitton's employment he interacted with her on a regular basis with telephone or email contact on average of three to four times a week. Due to a number of staff changes at that time and in the lead up to the CREATE conference his involvement might have been "a little bit more" to make sure what was coming out of the office at that stage was acceptable. Staff at CREATE have a pretty good idea what was happening in all areas of the organisation, being able to move from one area to another without too much trouble. In the case of Gill being seconded to assist in the policy area it was McDowall's evidence that program development from whence Gill came, was about program writing and development whereas policy work was more about the advocacy side to make sure they get out to the stakeholders the relevant issues. [68] McDowall was taken to a number of emails [Exhibit 42] which detailed assistance he provided to Whitton and others where he gave evidence that all policy officer work went through the manager of policy and research and then finally came to him. At times Whitton was reluctant to attend conferences and to support the unit he would make presentations on their behalf. On the question of Whitton's competency, his evidence was that in respect of work she forwarded to him she either was not competent or she had not actually read the work very carefully before sending it off to him. In particular a "Be Heard" document [Exhibit 42(5)] forwarded to him in October 2013 drew the comment "I would have expected that it would be in a much better state than it was before it came to me". The current position regarding the person occupying Whitton's previous role is that McDowall "split" the responsibilities in presenting to the conferences. The emails forming Exhibit 42 were said to be indicative of the support he provided to Whitton during her time at CREATE. [69] McDowall in the course of his role did not have much interaction with Gill as she was working in the programs area although she had applied for a policy role at CREATE. Gill assisted with policy, being available to help around the time of the conference however did not officially move into a policy role. Around conference time he did not see Gill on a regular basis and there was no email exchange between the pair with their interaction being limited to "say hello and how are things going". In terms of Whitton he had no idea there were any problems with her or major issues of concern apart from the fact he was doing a "lot of, sort of cleaning up work" on the material that was coming through. The presentations undertaken by him were more than should have occurred at an operational level. The decision as to who would undertake a presentation was made by the policy team without any involvement from Reed and he was quite happy to make the presentation and did not raise it with the Board although he had "probably" raised it with Reed. [70] Under cross-examination McDowall confirmed his role was to provide the finishing touches to work produced by the policy unit that went into the public domain [Transcript p. 4-56]. On the document "Be Heard" it was not one of the worst as it was written by a policy officer whose work "wasn't bad at all" [Transcript p. 4-56]. McDowall agreed he had control of the data system and anyone including Whitton who wanted access to the system had to come through him [Transcript p. 4-57]. The fact that Whitton was not comfortable doing presentations was not a major problem [Transcript p. 4-57]. -- 18 of 75 -- 19 [71] In re-examination McDowall could not recall the specific date Whitton had informed him about being uncomfortable with undertaking presentations it just seemed when a presentation came up she was reticent to engage and was looking for an alternative. Gill [72] Gill, currently a mental health advocate and project officer with her own consultancy firm had around 15 years' experience in the human services sector, holding the following qualifications:  Bachelor of Social Science in Human Services;  Diploma of Mental, Health, Youth Work, Community; and  Graduate Certificate in Business in Philanthropy. Having worked in both the private sector and with not-for-profit organisations she held the view that this sector was about ethics and values. [73] Gill undertook work with CREATE for a two year period ending in November 2013. She occupied the role of National Program Development and Training Co-ordinator and was the "go-to" in terms of program development and training for all state-wide teams. The role required interaction with policy and research sections to enable her to have a broad understanding of what policy stood for and positions they would take as an advocacy organisation. The work undertaken with the National Policy Manager related to direction around training or program development at CREATE. [74] On commencement with CREATE Rob Green (Green) was the Policy and Research Manager in control of a team of three or four policy officers who were a mix of full-time and part-time employees. Green was in that role for less than 12 months and on his departure from CREATE his place was taken by Whitton. Prior to the commencement of Whitton it was an "all hands on deck" approach with her working day-to-day with the team. Gill's manager at the time of Whitton commencing gave her a direction to assist Whitton as she did not have a full team and with the CREATE National Conference coming up she needed help to get the task completed. Gill described her role as "huge" in terms of training and program development at that time. Her role in the policy area was to assist and support the policy team in the day-to-day activities as Whitton had a number of issues that required acupuncture two to three times a week, chiropractic treatment and was moving her unwell mother into a care home. Gill's own manager had told her to "do whatever it takes to get Claudia to that conference" which resulted in her learning all the training plans that Whitton was to learn to the extent Gill would be able to actually step into the role if Whitton could not get to the conference. [75] On her work in the policy unit she recalled that Whitton would start late or finish early due to her numerous health issues and the situation with her mother. On her interaction with Reed, they shared an office and saw each other on a daily basis. Reed would let her know about the day-to-day operations of the organisation but had no direct managerial responsibility over Gill. When necessary Reed would pose questions regarding the roll out of a project and wanted to know how Gill's projects were progressing. In the six weeks leading up to the CREATE conference Gill did not notice any difference in the way the office ran in Queensland although it was busy in terms of the conference preparation. The day-to-day roles of staff were at times, due to the upcoming conference, overtaken as they built to the conference. -- 19 of 75 -- 20 [76] Gill and others were excited when Whitton commenced with CREATE due to her previous role with a past Queensland Government and when she worked with her Whitton shared information about her past employment and not having worked for a year prior to obtaining a position at CREATE. The Queensland office of CREATE was described as a supportive small office and due to changeovers within the policy team it was sometimes just Reed, Whitton and Gill. A number of the changes were due to funding cuts. Gill expressed a view that if she had been successful in obtaining a policy role she would have remained with CREATE. Reed according to Gill was quite supportive of staff and in her case she was quite autonomous from Reed in her work role. [77] Gill in response to a line of questioning from the Commission gave evidence of being "pretty confident" of her recall of exchanges with Whitton as they had built a relationship in the office due to there not being others around. In respect of Whitton's previous role prior to taking up the appointment with CREATE it was as Chief of Staff to the former Queensland Premier Anna Bligh. [78] Under cross-examination Gill was asked to revisit Whitton's previous employment where she reiterated it was her understanding she had been Anna Bligh's Chief of Staff but had no recall of her working for a Minister named Struthers [Transcript p. 4-18]. In October 2013 Gill had applied for a Policy Officer position with CREATE and was greatly surprised when she failed to gain an interview considering her 10 years in the industry [Transcript p. 4-18]. Gill's direct knowledge was Whitton started late in the morning on a number of occasions to get acupuncture and "physio" [Transcript p. 4-19]. Gill conceded the table relating to the Policy and Research section [Exhibit 28] showed her secondment commencing in October 2013 and not August of the same year however she was working with the team prior to her secondment "reading over emails, mostly in printed form" [Transcript p. 4-19]. Gill did not disagree with a proposition that Whitton visited the "physio" in her lunch break [Transcript p. 4-19]. Gill in her time with Whitton's section did not write any policy but "contributed" and also did research over and above her normal duties [Transcript p. 4-20]. She had "come on board" to assist Whitton with the CREATE conference which placed extra workload on the whole organisation including Whitton [Transcript p. 4-20]. [79] In re-examination she identified a "contribution" in writing policy as providing a response around CREATE's position on issues with "we all" having our heads in the documentation. She also provided feedback and edited policy work undertaken by policy officers. Regulator Whitton [80] Whitton, currently the Chief of Staff to a State Government Minister, had commenced employment with CREATE in April 2013, holds a Bachelor of Arts with a double major in Politics, and had in the course of employment worked as a Policy Advisor for the Minister for Education (Anna Bligh) in 2001 to 2004. Immediately prior to her engagement with CREATE she had been Chief of Staff for the Minister for Community Services and Housing, a role she described as "very demanding" with responsibilities that included: -- 20 of 75 -- 21  managing the office;  across all legislation and cabinet submissions;  responsibility for all correspondence inwards and outwards; and  providing advice to the Premier and other Ministers about legislation going into Parliament. A significant amount of policy work and research skills had been developed by her in that role as Chief of Staff. [81] On 22 April 2013 Whitton commenced with CREATE in a role that encompassed developing reports that went to various State Government Departments who funded the organisation to undertake research, consultation and develop reports. Whitton's role was to oversee what staff were doing, support State Co-ordinators and review the work. On commencement she had two full-time and one part-time staff but following a restructure of the unit, one full-time and one part-time positions were removed leaving her with one staff member. In July 2013 that staff member took a month off and another staff member was engaged shortly thereafter. Whitton confirmed the content of a staff spreadsheet [Exhibit 28] as being a fair reflection of staff that came and went during her employment. [82] In October/November 2013 Gill was seconded to her unit and whilst she may have had aspirations to be a policy officer she had not been able to secure a position due to opposition by Reed. In the lead up to CREATE's conference Whitton had no staff and following a number of approaches from Gill agreed to allow her to assist with the preparation for two presentations at the conference as presentations were not part of Whitton's expertise. At the conference the pair conducted one presentation together. [83] On commencement with CREATE she found the work to be completely different but it was a field she found interesting and enjoyed the work. The relationship from the commencement of her employment with Reed was fairly good with regular "catch-ups" between the pair occurring. Whitton had not diarised those meetings on the basis of them being casual in nature nor did she notice Reed taking notes at those meetings. In early 2014 she recalled however Reed started to take notes at their meetings. [84] In the first few months Whitton was quite oblivious to Reed's management style but later became aware that she was a micromanager requiring everything to be written the way she wrote, constantly sending emails early in the morning and late in the evening and often being blind-copied into emails going to other people in the leadership committee. [85] Whitton gave evidence regarding her health situation having been diagnosed with depression in the 1990s due to her family circumstances that included a divorce and the responsibilities associated with being a sole parent. Her circumstances had led to a not so severe depression condition that was managed by the use of antidepressants and sometimes counselling. In her period of government employment prior to working for CREATE she had limited time off and had at one time increased the dosage of antidepressants when her father had passed away. [86] On commencement with CREATE she had disclosed issues regarding her knees that required acupuncture and physiotherapy treatments of which the latter was undertaken -- 21 of 75 -- 22 prior to work or at lunch time, denying the proposition regarding not arriving to work until 10.00 or 11.00 am as the physiotherapist was less than 100 metres from her work. Whitton's daughter also had a number of health issues that were difficult to work through at times due to "peaks". She had disclosed her daughter's condition to Reed and did not think in this day and age that someone having a mental health condition was a big issue that would be held against someone. [87] Whitton gave evidence of the probation assessment undertaken on 31 October 2013 and having undergone that process understood that everything with her employment was fine and she had no reason to be concerned about any aspects of her work. In or around December 2013 and January 2014 some issues arose with her mother requiring her to be moved into palliative care which became a very difficult time for Whitton as she and her mother were very close. Further as her mother's enduring power of attorney she was required to consult with her siblings regarding medical decisions effecting her mother. [88] Sometime in early 2014 Whitton had applied for carer's leave due to her mother's circumstances which was queried by Reed despite having knowledge of the power of attorney arrangements and her mother's medical condition. [89] Whitton was the subject of a Supervisor Report [Exhibit 2] on 4 February 2014 and following that process had no concerns as the report provided a satisfactory outcome regarding her work activities without any indication she was going to be forced out of the organisation. On 28 March 2014 Whitton forwarded an email to Reed informing her that she was feeling unwell and indicating she was fairly happy where she was at with the position paper. The response from Reed completely shocked Whitton who was unprepared for comments of Reed in which she stated "I will bring forward our supervision and reschedule a time next when we Re both in Bris" [Exhibit 39]. Shortly after receiving Exhibit 39 Whitton received another email from Reed [Exhibit 11] which stated the following: "Hi Claudia Further to the email calendar invite that was just sent. A supervision session has now been scheduled for next Thursday 3 April will cover performance related issues rather than focus on the work in play (another meeting will be organised to do that). We have discussed a variety of performance related issues generally in our catch up sessions, and some were covered in our last supervision. Whilst I acknowledge that your commitment is high, I think that we now need to discuss these areas of concern more formally. In particular I want to discuss with you the following: 1. Quality of reports/submissions 2. Timeliness of work and deadlines 3. Advocacy effectiveness You are welcome to have a support person at the meeting." -- 22 of 75 -- 23 [90] Whitton was again shocked by the content of Reed's email particularly as she had just informed Reed she had been not feeling well and was staying home that day. The following day Whitton forwarded an email in response to Reed's email in which she sought to postpone the meeting that had been scheduled which facilitated the following response from Reed: "Hi Claudia I have absolutely no doubt whatsoever that you are committed to your role and fit beautifully into the create culture. Please do not think that this is a reflection on how I view your commitment, or you personally. I realise that this process may cause you some angst, however, it would not be an unexpected given the level of involvement that I have had to have; and the repeated issues that we have discussed during catch ups and recent supervision. I think that the time allowed is reasonable and certainly in line with industrial expectations. Additionally, it is not a good idea to postpone these things and far better to address in a timely manner. I can move the meeting to the Friday afternoon to try to accommodate your request, and will alter my meetings with Julie to facilitate this. The following week is full." According to the witness Reed was displaying her usual level of micromanagement. [91] In early 2014 upon receiving a referral from her general practitioner saw a psychologist (Pears) who predominantly worked in the area of workplace stress. Whitton acknowledged there were some personal issues going on in her life at the time but in the course of her consultations with Pears raised issues of micromanagement, not feeling valued as an employee and concerns about passive aggressive behaviour exhibited by Reed, all of which were causing her stress and to have panic attacks. [92] The psychologist gave advice to Whitton which included to work out ways to have conversations with Reed however that was not an option due to the way Reed spoke disparagingly about others in the organisation as well as denigrating those in the leadership team. Reed was not a person that could be approached about concerns one may have about her work practices. [93] With regards the three items identified for the purposes of the scheduled supervision meeting on 3 April 2014 Whitton had not been provided with any written information setting out details of concerns around the three issues. After the meeting which was described as a "stressful experience" she visited Dr Ruberry a general practitioner who issued a Workers' Compensation Medical Certificate [Exhibit 43] dated 4 April 2014 in which he diagnosed Whitton with an Adjustment Disorder from workplace harassment. Whitton over the weekend sought advice from her Union as she had been summoned to a further meeting and formed the view it was necessary to have Union representation at that meeting. [94] In the meeting with her Union representative (Devlin) they formulated a plan in which she was prepared to work through any concerns that Reed may have had and to continue to do her job. From the outset of the meeting Reed informed them that this was going to be a first and final meeting to discuss concerns in what was basically a disciplinary process which had the effect of "completely" throwing Whitton who -- 23 of 75 -- 24 recalled attempting to respond to the allegations whilst not provided with any documentation to support the allegations. The meeting broke on a couple of occasions which allowed her to have discussions with Devlin (outside) and to calm down. Whitton could not recall how long the meeting went but felt at the time destabilised and shocked as her professional ability was being attacked. [95] There was a third meeting some two days later and in between meetings she held further discussions with Devlin about whether she went down the performance management process or not. At the third meeting there were discussions around probation, performance management and of Whitton ending her employment on the basis of being paid a certain amount and the signing of a deed of release which subsequently occurred. [96] Under cross-examination Whitton gave evidence of reporting to Reed in her capacity as policy and research manager and being part of the leadership team [Transcript p. 4-92]. Reed was her manager and had micromanaged her [Transcript p. 4-93]. The first notification of a meeting around the escalation of the management by Reed was received when she was sick and this caused her some concern. Prior to that notice she had concerns about the way Reed had managed her work [Transcript p. 4-93]. She had not felt the need to seek information prior to the meeting as she had never been through such a process and had not believed Reed was trying to get her out of the organisation [Transcript p. 4-94]. It was the first time in ten months of employment that there had been an actual physical indication there was a concern about her work [Transcript p. 4-94]. [97] Whitton had prepared a document [Exhibit 44] between the second and third meetings which she accepted as an accurate reflection of her thoughts at the time regarding the concerns raised by Reed [Transcript p. 4-98]. The raising of issues of performance was conceded by Whitton as being entirely consistent with Reed's role [Transcript p. 4-98]. At the time of writing this document Whitton had fully anticipated remaining with CREATE and was seeking to get an understanding of the concerns Reed had with her performance [Transcript p. 4-99]. She valued the opportunity to respond to the issues and was prepared to engage up to the second meeting [Transcript p. 4-102]. Whitton in Exhibit 44 had mentioned an issue relating to "the" Senate submission as having been raised in terms of the quality of her reports but refused to accept the proposition there had been numerous occasions when Reed had raised issues about the style of reports [Transcript p. 4-103]. On reports to the Royal Commission, Whitton denied that drafts of those reports had been returned to her due to editing, footnoting and grammatical errors and could not recall any involvement from McDowall on those reports [Transcript p. 4-104]. [98] Whitton whilst holding the position as Policy and Research Manager gave evidence that the word "National" was not part of her title and there was no one above her unless you considered McDowall who had initially been referred to as an external consultant and suddenly became Executive Director Research [Transcript p. 4-104]. McDowall's assistance with editing reports from her unit were focussed on the Senate report and maybe one which involved the Northern Territory [Transcript p. 4-105]. Whitton had no recall of Reed having commented on other submissions and reports nor was she aware of any style guide relied upon by CREATE for footnoting [Transcript p. 4-106]. Whitton did not accept that in the latter part of 2013 and early 2014 Reed had raised a number of issues over not meeting timelines and denied there were regular "catch- ups" with Reed in 2013 [Transcript p. 4-106]. Over the course of employment there -- 24 of 75 -- 25 were possibly between five and ten "catch-ups" but Whitton could only recall one concern being raised by Reed being about the need for a practice manager to do a certain job [Transcript p. 4-107]. [99] Whitton accepted the content of the supervision meeting notes [Exhibit 2] of 4 February 2014 were a fair reflection of what that meeting, being a summary rather than a transcript [Transcript p. 5-4]. The document was signed by her after the meeting and after she was given the opportunity to add comments from her perspective [Transcript p. 5-5]. Whitton accepted the document content included:  she was a valuable team member;  identified areas of improvement; and  issues with her performance. Whitton in evidence acknowledged there were some areas for improvement [Transcript p. 5-6]. The structure of CREATE at the time relevant to these proceedings had the Board and Reed above the leadership team members (such as herself) and operated at a National level [Transcript p. 5-6]. [100] Whitton accepted where her work had been referred to by Reed as satisfactory that there was room for improvement and understood there were expectations for her to perform at a level higher than satisfactory, however at the same time she had not had a full team or had a team of people who had never worked in that area before. On 4 February 2014 her team was made up of personnel new to the team all of whom she had employed [Transcript p. 5-7]. Gill had applied for a position in the policy team but was unsuccessful and according to Whitton as Reed had made it clear Gill should not get that position and had influenced Whitton not to give her an interview [Transcript p. 5-9]. Whitton did not accept that Gill had undertaken policy work or assisted policy officers in her team [Transcript p. 5-10]. [101] When issues were raised about her performance in late March 2014 she was sick at the time and the need for a support person indicated to her that this was more than a "catch-up" and likely a serious issue [Transcript p. 5-15]. The email from Reed [Exhibit 11] was unexpected and concerning [Transcript p. 5-18]. Whitton recalled receiving the Performance Improvement Plan [Exhibit 21] dated 7 April 2014 understanding it had been authored by Reed and came about after the second meeting [Transcript p. 5-22]. It was accepted that some of the content in Exhibit 21 was discussed at the second meeting [Transcript p. 5-24]. On receipt of this document she formed the opinion that Reed wanted her out of the organisation [Transcript p. 5-24]. Whitton was unable to recall whether prior to the third meeting she had spoken to Bushett about a deed of release [Transcript p. 5-25]. The view that her employment was unlikely to continue had been formed by Whitton and Devlin following a discussion about the situation [Transcript p. 5-27]. [102] On the outcome of the second meeting Whitton maintained that the words "first and final warning" were used [Transcript p. 5-31]. Whilst conceding that in the second meeting Reed was going through the motions of a performance management process she did not trust Reed because she was not a genuine person [Transcript p. 5-32]. Until the email of 28 March 2014 [Exhibit 11] Whitton, whilst having concerns about what was going on in the organisation, had still thought she could hopefully turn the situation around and felt secure in her employment [Transcript p. 5-33]. Issues of micromanagement first became evident in October/November 2013 and had not been -- 25 of 75 -- 26 raised with Reed prior to 28 March 2014 although she had suggested to her that emails from her should be sent in working hours. Reed had not said anything to her about responding to emails outside of hours however Whitton perceived that there was a requirement to work constantly [Transcript pp. 5-34 to 5-35]. Reed had not told her that it was a requirement to respond to her emails outside of working hours [Transcript p. 5-35]. [103] The meeting held in February 2014 was in the view of Whitton an escalation in Reed's management of her and the impact of Reed's actions had been raised with her counsellor [Transcript p. 5-36]. In relation to micromanagement, Whitton believed as a manager you had to have a certain amount of autonomy but accepted if something was plainly wrong or someone was not conforming with the style guide of the organisation it was acceptable for management to raise their concern [Transcript p. 5-37]. [104] In meetings Reed had with Whitton there were notes taken by Reed from about October 2013 however the content was questionable to her in that she doubted Reed's honesty [Transcript p. 5-41]. Whitton was unable to recall a meeting with Reed in August 2013 nor an email from Reed at around that time which listed seven items to which she agreed were topical at the time [Transcript p. 5-42]. Whitton did not accept propositions put to her about "catch-up" meetings with Reed [Transcript p. 5-43] but did acknowledge when Reed caught up with her and talked about work issues, Reed took notes [Transcript p. 5-45]. [105] Whitton acknowledged an email [Exhibit 7] dated 25 March 2014 where she sought and received feedback from Reed on a draft document which indicated there were issues with structure and editing [Transcript p. 6-3]. In an email [Exhibit 22] sent by Whitton to Reed on 7 April 2014 Whitton confirmed her comments at the last paragraph were genuine: "Jacqui, I sincerely hope that the concerns you have raised are able to be satisfactorily addressed at the meeting. I reiterate my commitment to CREATE and the work CREATE does for children and young people in out of home care." [Transcript p. 6-3] Whitton's general practitioner (Dr Anderson) worked out of the West End Medical Practice and had been seeing her for over a decade. Dr Anderson had treated her for depression, prescribing the medication Zoloft for in excess of ten years [Transcript p. 6-4]. In early 2014 she started to attend upon Pears (Psychologist) following a referral from Dr Jefferies from the Medical Practice, although it may have been Dr Anderson who provided the referral as she had discussed Pears' expertise previously with Dr Anderson [Transcript p. 6-5]. Dr Jefferies had recorded on 2 January 2014 that Whitton had wanted to see a psychologist as her mood had decreased recently and had listed stressors such as guilt, her mother had been unwell and Whitton did not want to increase Zoloft at that time with Whitton not disagreeing with the content of the consultation notes [Transcript p. 6-7]. Whitton had some concerns about Dr Jefferies' records being "complete" but her reason for attending the practice related to increased panic attacks from November and December 2013 [Transcript p. 6-8]. Whitton had dealt with her depression for a very long time, occasionally getting panic attacks, and would seek support if necessary [Transcript p. 6-8]. Panic attacks were not part of the usual course of her depression but she occasionally had panic attacks and anxiety attacks [Transcript p. 6-9]. -- 26 of 75 -- 27 [106] Whitton's evidence went to times when there was no significant distress in her life and at those times there were no anxiety or panic attacks [Transcript p. 6-10]. Whitton acknowledged that her panic attacks prior to January 2014 were not so serious as to cause her any difficulties in functioning either at work or in her social life [Transcript p. 6-10]. Whitton had attended Dr Anderson on 24 March 2014 probably because after six appointments with a psychologist there needed to be a review by the general practitioner to allow for the last four consultations with the psychologist to occur [Transcript p. 6-12]. On 4 April 2014 she attended Dr Ruberry at the Medical Practice at which time she spoke to him about receiving an unexpected performance assessment at work which she perceived as critical of her performance which had upset her [Transcript p. 6-13]. Further she informed the doctor of issues including poor sleep, early awakening, low self-esteem, depression "on and off", anxious, panic attacks, stress at work, relationship problems and financial problems [Transcript pp. 6-13 to 6-15]. [107] Whitton along with all of the leadership committee was required to attend the CREATE conference in late 2013 but could not recall Gill's involvement pre-conference in terms of learning all of Whitton's presentations. She disputed suggestions that it was only McDowall who had written the presentations [Transcript p. 6-19]. [108] Whitton was taken to a series of emails [Exhibit 40] regarding exchanges between Reed and herself which provided feedback and some criticism of the work performed by Whitton in and around February to March 2014. Areas of concern raised by Reed included style, referencing, APA formatting and typographical errors [Transcript pp. 6-20 to 6-22]. Whitton's evidence was these emails originated in the middle of the performance management process, at a time when Reed had already decided Whitton would be leaving the organisation [Transcript p. 6-24]. The view formed by Whitton about Reed wanting her out of the organisation had at the time caused her distress [Transcript p. 6-26]. [109] Whitton operated a Microsoft diary whilst employed at CREATE and was taken to an extract which covered the period 4 November 2013 until 23 June 2014 which showed she had pre-entered various appointments prior to her employment ceasing at CREATE. The diary carried information relating to personal issues in addition to work events [Transcript p. 6-31]. Whitton conceded there had never been any issue raised regarding personal appointments during the work day [Transcript p. 6-35]. On her dealings with McDowall, Whitton acknowledged he was fairly responsive to requests made by her and that there were aspects of her job she could not do without him [Transcript p. 6-36]. [110] Whitton had no concerns about her security in employment until she received the email of 28 March 2014 [Transcript p. 6-67]. CREATE had a history of restructures that had seen people leave the organisation [Transcript p. 6-68]. Whitton did not agree with the proposition that Reed had said or indicated prior to March 2014 that there may have been an issue with the security of her employment [Transcript p. 6-69]. Whitton had never communicated her concerns about job security to Reed because she was a person who would not have taken any suggestion well [Transcript p. 6-69]. -- 27 of 75 -- 28 [111] Whitton had been impressed by the work CREATE's State co-ordinators had done with children prior to her commencing employment and was passionate about the organisation. On taking up her role she was confident of being able to fulfil the requirements with policy [Transcript p. 6-70]. At the first consultation with Pears Whitton accepted she had raised a number of family issues that were effectively operating in her life [Transcript p. 6-72]. Pears had suggested strategies to deal with her situation at consultations in January 2014 [Transcript p. 6-73]. At the second consultation (13 January 2014) with Pears there was a mention of "reactive micromanagement" [Transcript p. 6-75]. Whitton did not know whether Pears wrote down everything that was spoken about nor did she recall what was discussed on each occasion with Pears [Transcript p. 6-75]. [112] In the consultation with Pears on 23 April 2014 the notes recorded the issues in the workplace where Reed's process around performance issues were causing her concerns [Transcript p. 6-75]. The issues included:  Reed not acknowledging reduced team numbers for many months;  Reed did not like her working from home; and  Reed's comments about her performance in front of the HR person had left her "gutted" [Transcript p. 6-75]. [113] Whitton had developed her own management philosophy or approach which was said to be a different style to that of Reed's. She accepted that Reed's style was the antithesis of her own style [Transcript p. 6-77]. Whitton was unable to accept that Reed's management style in attempting to manage her performance had caused her to be distressed but it was the attack on her professional integrity [Transcript p. 6-78]. Bushett [114] Bushett, a Human Resources Business Partner, commenced with CREATE in October 2013 as the HR Co-ordinator with her direct report being to "an operations manager, but indirectly, dotted line to Jacqui Reed". In respect of Reed's management style on most items of business she liked to keep a hands on approach with there being very little freedom to make decisions for staff members. The word "micromanage" could be used to describe her style. In Bushett's capacity as the HR Co-ordinator Reed would have discussions with her which were described as being "too personal, and removed from the bounds of being a HR discussion" which had concerned her at a point in time. Bushett had witnessed Reed give the same task to two staff members without advising the other staff member. [115] On 2 April 2014 Bushett forwarded an email to Reed which included the following references:  sample letter for first warning letter;  blank Performance Improvement Plan;  check process: - the meeting is informal; - you want it to be a frank and open discussion to discuss the state of performance; -- 28 of 75 -- 29 - the meeting will outline performance concerns, some of which have already been identified in supervision meetings and other discussions; - the meeting is to let Claudia know that CREATE would like to take these matters to a performance management process, the first step being a first formal disciplinary meeting; - this is not the normal practice of managing performance however given Claudia's level of position, it is not unusual to hold a frank and open discussion before moving into a formal performance management process; - although it is not common to ask HR or a support person to attend a supervision I thought I would provide the option today given the nature of the discussion; and  keep the meeting as an informal meeting and move to a formal disciplinary meeting next. [116] The final paragraph of the correspondence read as follows: "Jacqui, I know Kerri is keen on First and Final's and frank and open conversations, and normally at an executive level I would agree, however my experience of the managers at CREATE so far makes me nervous from a risk factor, and thus I want to play strictly by the rules. I appreciate your tolerance of my wanting to follow a conservative approach." Bushett forwarded a further email to Reed on 3 April 2014 which according to her evidence was as a consequence of a discussion with Reed who had expressed a view that Whitton could not come back from performance management. The question posed in the email was whether Bushett should be frank with Whitton about her chances of turning things around. [117] Bushett attended two meetings in April involving Whitton and Reed and support persons brought to the meetings by Whitton. Bushett terminated her employment from CREATE by way of a resignation due to being in trouble with Reed "a lot of the time" for things that were not particularly worthy of being in such trouble. The final straw related to an allegation that she had bullied Ahern who in turn had resigned. [118] Under cross-examination Bushett provided information regarding her previous employment in the mining industry which was a different type of business to not-for-profit but HR was the same [Transcript p. 5-83]. She did not recall that there was a level of flexibility in the CREATE office that allowed staff to move from their role to assist others to meet deadlines [Transcript p. 5-84]. Reed's involvement in "everything" was described as "quite unique" as CEOs usually delegate and get an overview [Transcript p. 5-84]. In the case of issues with management a CEO might step in but they would not generally take over [Transcript p. 5-85]. Bushett conceded that Reed had never taken over [Transcript p. 5-85]. Bushett denied she had personal or professional difficulties with Reed but openly admitted she was in fear of Reed [Transcript p. 5-85]. Bushett was never comfortable when required to communicate negative matters to Reed [Transcript p. 5-86]. [119] Bushett had no recall of being reproached by Reed over sharing information with Whitton regarding another employee but acknowledged the incident with Ahern [Transcript p. 5-86]. Bushett was not surprised by Reed's email [Exhibit 16] of -- 29 of 75 -- 30 3 April 2014 which recorded Reed's intensions to be frank and honest with Whitton [Transcript p. 5-86]. Bushett refused to accept that prior to her attendance at the two meetings involving Whitton and Reed that it had been Reed's position that Whitton stay with CREATE [Transcript p. 5-87]. Bushett's role at meetings with Whitton was to record the discussion however she stopped during both meetings because it was "too fast" [Transcript p. 5-87]. Bushett accepted she had discussions with Whitton around a deed of release but could not recall if that occurred between or after the meetings [Transcript p. 5-87]. Bushett was unable to recall details of her probation meeting with Reed and in particular an issue about breaching confidentiality and sharing personal information [Transcript p. 5-88]. [120] Bushett recalled a supervision meeting with Reed on or about 5 May 2014 regarding an allegation by Ahern of being bullied by Bushett but she had refused to sign the minutes because she did not entirely agree with the content [Transcript p. 5-89]. Advice given to Reed by her in respect of a meeting with Whitton about the recording of a disciplinary process was questioned by Reed who had proposed something less formal however Reed had followed her advice [Transcript p. 5-91]. At the first meeting attended by Bushett it was her evidence that Reed had not used the words "first and final warning" [Transcript p. 5-91]. Bushett did not recall Reed giving Whitton the option of taking leave at the meetings she attended [Transcript p. 5-91]. Bushett recalled Whitton applying for carer's leave with Reed being of a view that annual leave would have been more appropriate [Transcript p. 5-94]. [121] In re-examination Bushett's evidence was that the Performance Improvement Plan could have been brought into existence as at 7 April 2014 but could not confirm the date it was actually produced. Pears [122] Pears, a Psychologist specialising in organisational work that involves her working with businesses and individuals, had practiced as a Psychologist since 1996. Pears prepared a report [Exhibit 45] dated 2 September 2014 in which she recorded the following:  Whitton was referred for counselling on 2 January 2014;  she presented with clinically significant symptoms of stress which she attributed to work-related stressors;  she was feeling harassed and intimidated by her manager;  her manager had "micromanaged" and constantly criticised her performance in front of other in the workplace;  Whitton's condition was consistent with a diagnosis of Adjustment Disorder;  in March 2014 she said her employment had been terminated for performance issues;  Whitton claimed her manager's bullying behaviour over time had impacted on her wellbeing displaying the following symptoms: - feeling agitated and easily irritated by minor things; - over-reacting to situations; - low level of motivation; - doubting her own decisions and questioning herself all the time; - loss of confidence; and -- 30 of 75 -- 31 - feeling fatigued all the time. [123] Pears gave evidence regarding consultations with Whitton and strategies put in place to manage the situation to assist with counteracting the negative belief that she was not good enough. Whitton in the course of consultations had reported that her CEO had:  lacked empathy;  was reactionary; and  made comments that eroded her self-esteem. Whitton had informed her she was used to working in a demanding work environment, had loved the work at CREATE and was passionate about the organisation. [124] Under cross-examination Pears' evidence was that Whitton had sustained an adjustment disorder which Pears attributed to her employment [Transcript p. 5-66]. There had been personal issues in Whitton's life which had been there for a long time and not impacted on her work or functional level [Transcript p. 5-66]. Pears had been informed by Whitton that she had taken some carer's leave to assist her mother who had dementia and was blind [Transcript p. 5-67]. Pears had not discussed with Whitton flexibility arrangements in the workplace to allow for attendance to personal appointments as required [Transcript p. 5-67]. [125] In September 2014 Pears saw Whitton for the first time since April 2014 and whilst she had improved in terms of her clinical symptoms, she still was not back to where she had been and had at the time taken a lower level job without the same level of responsibility [Transcript p. 5-67]. In September 2014 Whitton was reporting to Pears about her level of distress from things still happening in her life and that she had not regained her confidence and was still feeling anxious if she drove past her old workplace or saw their logo [Transcript p. 5-69]. Pears refuted the suggestion that Whitton's distress was as a result of her WorkCover claim being rejected and was going to appeal. Whitton's attendance was for the purposes of an update as Pears had been requested to write a report for WorkCover [Transcript p. 5-70]. [126] On the allegations of Whitton about harassment in the workplace, Pears stated it was not her role to undertake an investigation and had accepted what Whitton had said to her in the course of her consultations [Transcript p. 5-70]. Pears adopted the term "micromanaged" based on Whitton's role and her own understanding [Transcript p. 5-72]. Pears accepted that a strategy where Whitton could raise the issues concerning her was something that could be put into practice and to work on [Transcript p. 5-73]. The references in her notes about bullying was not in reference to micromanaging but went to derogatory comments made about Whitton's performance in front of other staff [Transcript p. 5-74]. Pears disputed that there was a lack of symptoms for an adjustment disorder at the initial consultation with her notes at the time referencing guilt and depression [Transcript p. 5-74]. At the time of the first consultation Whitton's depression which had existed prior to her commencement with CREATE was being managed [Transcript p. 5-75]. On the absence of a suggestion in the consultation notes (at the time of the second consultation) of a mention that Whitton was experiencing symptoms at a clinical level, Pears did not accept it necessary to have written that in the notes [Transcript p. 5-76]. On the fourth consultation there was an issue with her husband that was taking precedence [Transcript p. 5-77]. The fifth session dealt with her family issues and it was the sixth -- 31 of 75 -- 32 session where there was mention of her employment issues that had also had a "little mention" at the second consultation [Transcript p. 5-78]. Pears expressed the opinion that as a result of the situation at work based on bullying, intimidating behaviour and harassment, all by her manager, Whitton had suffered an adjustment disorder [Transcript p. 5-79]. The termination of employment was not a basis of an adjustment disorder [Transcript p. 5-79]. Whitton's diagnosis of an adjustment disorder by Pears had been based on:  constant public criticism and derogatory comments about her;  difficulties with reduction of staff numbers;  increasing work load; and  checking on her work being finished in time [Transcript p. 5-80]. The diagnosis made in September 2014 was based on the history given over the course of consultations between January and April 2014. [127] In re-examination Pears' evidence was at the time of the sixth consultation (3 March 2014) the personal issues in Whitton's life were resolving and that was the point when the work issues "really came to life". From that point in time there was a significant change in Whitton's presentation which included her appearance and weeping through the sixth session. Dr Ruberry [128] Dr Ruberry a general practitioner at the West End Medical Practice consulted with Whitton on 4 April 2014 where he recorded in his clinical notes that there was "work stress unexpected performance assessment". Upon an examination of Whitton he diagnosed that she had an adjustment disorder with mixed anxiety and depressed mood. Dr Ruberry described an adjustment disorder as something that comes about when a person has trouble coping and will generally settle over a period of six months. Confirmation of the condition can be seen through panic attacks and anxiety with low mood and low self-esteem also forming part of the diagnosis. [129] In a Workers' Compensation Medical Certificate [Exhibit 43] issued on 4 April 2014 he identified Whitton's stated cause of injury as "unexpected and undeserved performance management assessment". [130] Under cross-examination Dr Ruberry gave evidence of going through a series of questions with Whitton and accepting on face value what he had been told about workplace behaviour and harassment [Transcript p. 6-42]. In the case of Whitton he confirmed on the day she was in a distressed frame of mind and gave no appearance of being dishonest with him [Transcript p. 6-42]. Dr Ruberry was aware of ongoing treatment of depression with an antidepressant which was a pre-existing problem [Transcript p. 6-43]. In recounting her situation at the consultation Whitton had become quite emotional and distressed [Transcript p. 6-43]. The diagnosis by Dr Ruberry had been made under the diagnostic criteria for the Diagnostic and Statistical Manual and it was a diagnosis he felt confident with, due to his training and knowledge [Transcript p. 6-43]. Dr Ruberry accepted that whilst he had not made a diagnosis for six months it did not mean an adjustment disorder was present at the time of diagnosis. He had placed Whitton under the care of a psychologist who would be the right person to discuss the question of diagnosis six months on [Transcript -- 32 of 75 -- 33 p. 6-44]. Dr Ruberry understood the referral of Whitton to Pears in January 2014 was not work-related but pre-existing family issues [Transcript p. 6-44]. Devlin [131] Devlin, the Assistant State Secretary of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, met with Whitton on the weekend prior to the meeting of 8 April 2014. At that time they worked through the issues for the purposes of providing a detailed response. At the meeting on 8 April 2014 the plan was to make a statement of commitment to the organisation and respond to the issues raised however that did not occur as Reed opened by informing Whitton this was now a formal disciplinary process. Devlin referred to notes taken by him at the meeting to give evidence on what was raised by Reed as the issues for discussion. They included:  ongoing issues previously raised in "catch-ups";  overall performance as a manager;  timelines of work;  staff resignations; and  lack of research skills. [132] There were discussions about Whitton's probation interview as well as a number of the issues with the meeting lasting an hour and a-half. The series of "catch-ups" that had occurred in the course of Whitton's employment were now being referred to as counselling sessions that had been held on a regular basis. The meeting ended on the basis of Whitton going away to look at whether she could fit the tenets of the role and to provide a further response. [133] Devlin and Whitton had an extensive discussion before the next meeting where he believed there was a disciplinary process in place that could ultimately end with a performance management plan, exit package or termination. The next meeting held on 10 April 2014 facilitated discussion about support and guidance for Whitton with an indication from her as being eager to improve and make sure she had the necessary skills and capabilities to meet expectations. Reed in the course of the meeting put two options forward on behalf of CREATE. The first one was to issue a first and final warning for one month and outline the training to be undertaken. The second option was to discuss a mutual separation and deed of release. A response was required by close of business the next day after the original demand of that day was extended. [134] At the conclusion of the meeting there was a conversation with Whitton in which a number of concerns were discussed that cast doubt on how the situation would be managed going forward. It was felt that attempting to work on a plan which was micromanaged would place her under intense pressure and was not something conducive to enjoying your workplace and to be able to perform. [135] Under cross-examination Devlin had no recall of Whitton being provided with a performance plan and their discussion had been about a theoretical document [Transcript p. 6-58]. At the end of the final meeting he accepted Reed had communicated that Whitton would be continuing with her employment under a final warning [Transcript p. 6-58]. There were concerns about how the plan would be managed and whether it was infinite or could be expanded [Transcript p. 6-59]. His -- 33 of 75 -- 34 understanding was a first and final warning would be delivered and then a performance plan would be implemented [Transcript p. 6-59]. Reed had indicated she may have been open to extending the performance plan beyond one month but gave no guarantee [Transcript p. 6-60]. The extension granted by Reed for a response was in the circumstances reasonable [Transcript p. 6-60]. There was a reference to the possibility of professional assistance which had not been detailed [Transcript p. 6-61]. Despite other options that may have been mentioned it was a formal disciplinary process that had been put in place [Transcript p. 6-62]. [136] Devlin recalled Whitton had responded with some surprise in relation to the suggestion by Reed that the issues had been raised in the regular "catch-ups" [Transcript p. 6-63]. The term "micromanagement" had been raised by Whitton [Transcript p. 6-63]. Devlin understood that "catch-ups" were meetings that occurred on a regular basis [Transcript p. 6-64]. The first meeting had ended in a way that met the needs of both individuals at the time [Transcript p. 6-65]. [137] In re-examination Devlin had no understanding of an offer being made to Whitton to have time off. Devlin confirmed there had never been a Performance Improvement Plan produced at any of the meetings. Ahern [138] Ahern currently working at the Australian Bureau of Statistics as a District Manager for this year's census. Previously she had accepted a position with CREATE on 31 March 2014 and ceased the employment on 2 May 2014. The role was that as National Operations Manager with a direct report to Reed as CEO of the organisation. The responsibilities included:  managing all practical operations of State offices; and  managing risk. [139] Ahern had in her role interstate obligations with human resources reporting directly to her which included Bushett. [140] In terms of her interaction with Reed she found her micromanagement more than she had previously experienced in her career from other CEOs which included a lot of email contact that followed up on fairly minor points as well as providing specific direction as to tasks. Reed informed her that her role had a narrow scope which impinged on what she might otherwise had done in that role. [141] Ahern was aware of the work undertaken by the HR Manager with regards to staff turnover figures that went to the leadership team but were reported to the Board in a misleading manner that did not show the true picture of staff turnover which was high for an organisation the size of CREATE. Ahern had never felt bullied by Bushett nor had she ever made such a complaint to Reed, giving evidence regarding allegations said to have been made by her about Bushett as not being an accurate reflection of their relationship. Ahern was never fearful of Bushett and after her employment had ceased she made arrangements to have coffee with Bushett when she returned certain articles to the office. Ahern had mentioned to Reed observations about Bushett's level of stress. Ahern denied a second complaint alleged to have been made about Bushett having portrayed the organisation negatively to externals or staff. No such complaint had ever been made to Reed. -- 34 of 75 -- 35 [142] Ahern orally resigned her position on 1 May 2014 a couple of hours after Reed had accepted it she was approached by Reed and asked if she was prepared to talk to the Chair of the organisation about concerns she had about the organisation. Ahern flew to Sydney on 2 May 2014 with Reed and McDowall and after waiting for an hour or thereabouts to talk to the Chair she was informed by McDowall that the Chair did not need to speak to her and she subsequently returned to Brisbane. [143] Under cross-examination Ahern did not accept the content of an email from Reed [Exhibit 54] about a staff engagement survey reflecting what they had discussed prior to the email being sent two days before she resigned [Transcript p. 6-87]. Ahern had no interaction with Board members about any complaints [Transcript p. 6-88]. Ahern had made Reed aware of concerns about bullying in the organisation suggesting it would be useful for a thorough independent investigation to put those allegations to bed [Transcript p. 6-88]. Submissions Appellant [144] The Regulator by Decision (dated 2 December 2014) made the following findings:  Whitton sustained a personal injury in the nature of a psychiatric injury diagnosed as an adjustment disorder;  injury arose out of Whitton's employment with CREATE;  the employment was a major significant contributing factor to the injury; and  reasonable management action had not been taken by management in connection with Whitton's employment within the meaning of s 32(5) of the Act. [145] The decision of the Regulator had been benefited by evidence on behalf of Whitton in addition to material provided by both CREATE and Whitton. The central grounds for the decision related to an assertion that Whitton had been subject to "clearly unfair and unreasonable management action by the Chief Executive Officer of CREATE" in particular to alleged performance issues and the management process that followed. Of the evidence considered by the Regulator in connection with the development of any alleged psychological injury sustained by Whitton it was the case that Devlin and Bushett were involved in the process through attendances at meetings however in respect of Ahern she had no involvement in the process with the most generous evaluation of her evidence being of marginal relevance only. [146] The Appeal was based upon propositions that included:  Whitton had not established that she sustained a psychiatric or psychological disorder in respect of which employment was the major significant contributing factor; and  that any psychiatric or psychological disorder found to have been experienced or suffered by Whitton arose out of reasonable management action taken in a reasonable way or alternatively only out of her -- 35 of 75 -- 36 expectation or perception of reasonable management action being taken against her. [147] In relation to the sustaining of injury it ought to be noted that the opinion evidence supporting the diagnosis relating to work stress appears in the context of an historical narrative and was not borne out from a factual perspective in terms of the evidence before the Commission. There was not sufficient evidence for a finding that Whitton had been:  intimidated;  harassed;  bullied;  belittled; or  subject to disparaging comments. [148] The medical certificate issued by Dr Ruberry was based on the presence of workplace harassment as reported to him by Whitton as was also the situation with Pears. There was opinion evidence that supported the application for compensation that drew a connection between harassment, bullying and intimidation in the workplace by Reed and the development of a psychological or psychiatric disorder as a consequence. Without the factual foundation for the opinion of the development of the disorder the opinion evidence cannot stand as recorded in Australian Securities Investment Commission v Rich1. The submission challenged the existence of the events reported to the medical practitioners or treatment providers and therefore should not be regarded as sustaining the opinions relied upon. The injury did not satisfy the terms of s 32 of the Act and the claim should be dismissed. See Boyd v Q-COMP2. [149] The proposition that the psychological or psychiatric disorder arose out of reasonable management action undertaken reasonably or alternatively arose out of the worker's expectation or perception of reasonable action being undertaken against Whitton requires consideration of the facts as they pertain to the actual behaviours attributed to Reed which were interpreted or described by Whitton as:  bullying;  harassment; or  intimidation. [150] Additionally there were references from numerous witnesses which described the management style of Reed as "micromanagement" and contributing to the alleged behaviour causative of Whitton's condition. There was no evidence that "micromanagement" was antithetical to good practices of management or otherwise with some reprehensible connection to the cause of a psychological or psychiatric disorder. The term should be regarded as nothing more than an umbrella term to describe a collection of behaviours viewed or regarded by different people in different ways. There was no approbation on the part of the medical practitioners in relation to whatever would fall under the rubric of "micromanagement" and therefore the Commission could not simply make a determination that this form of management would lead to the occurrence of a psychological or psychiatric disorder. The evidence 1 Australian Securities Investment Commission v Rich [2005] 218 ALR 764 2 Boyd v Q-COMP (2005) 180 QGIG 1129 -- 36 of 75 -- 37 does not support a finding that the "micromanagement" was behaviour that could properly be characterised as intimidating, bullying, harassment or unfair treatment. [151] The alternate basis relates to a particular perception on the part of Whitton regarding her time at CREATE and manner in which she was treated by Reed. The perception was said to be fuelled by her previous more responsible role occupied prior to gaining employment with CREATE which had translated into a view that Whitton was beyond question in terms of her workplace performance. [152] For the purposes of the relevant legislation it was accepted that Whitton was pursuant to s 11 of the Act a "worker" however she bears the burden of establishing on the balance of probabilities that:  she suffered a personal injury as claimed;  her injury arose out of or in the course of her employment;  her employment was a major significant contributing factor in the occurrence of the injury; and  the injury being a psychological or psychiatric injury, was not excluded by the operation of s 32(5) of the Act. Background [153] CREATE is a non-profit organisation that advocates for the benefit of children and was an organisation that worked in areas that were burdensome for staff. The organisation had a flat structure that was non-hierarchical with a Board and leadership committee which operated autonomously. Funding of the organisation included public funding which had the effect of having a process that was time critical. [154] Whitton's case occurred at a time that was critical for the organisation with her role being Brisbane based with a national component. There had been a turnover of staff in her area after June 2013 which saw the allocation change to two full-time staff. It would be seen that Reed considered the role to at least include editing of work that was completed by staff. McDowall, a Board member who later became the Executive Director of Research, maintained a role in assisting with the policy and research work. [155] At the relevant times CREATE had a dedicated HR Officer (Bushett) to assist with such matters as the management of human resources in addition to an external consultant (Challenor). Prior to Whitton commencing with the organisation Bushett had been appointed to the HR role and was still in the role at the cessation of Whitton's employment. [156] The allegations pertaining to the alleged Adjustment Disorder was said to focus on:  Whitton's perception of the manner in which she was treated by Reed; and  the process Whitton alleges CREATE embarked upon that led to the cessation of her employment. The above two factors were said to be the principle bases for the development of the condition although there was reference to excessive workload. [157] The progression relied upon by Whitton was identified in the following terms: -- 37 of 75 -- 38  13 November 2013 - review of employment - no concerns raised;  4 February 2014 - supervision meeting with Reed - minor matters noted;  28 March 2014 - email forwarded by Reed about performance concerns and advising of a formal meeting to be held; and  10 April 2014 - Whitton advised of a "first and final" disciplinary meeting with two options of offer: - undertake one month performance management process; or - sign a deed of release and resign. It appears that the subjective view of what occurred was aggravated by the fact that Whitton received a probation report (on 13 November 2013) that was fine. [158] The second stressor related to an excessive workplace, referring to changes in staffing levels of the team supporting Whitton over the period relevant to her performance. Law [159] The focus of the application for compensation was a psychological or psychiatric injury with s 32 of the Act providing that for such a disorder the employment must be a major significant factor to the injury in the acceptance of such a claim. Additionally s 32(5) of the Act provides that psychiatric or psychological disorders arising out of or in the course of employment are excluded in circumstances where they:  arise from reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; or  arise from the worker's expectation or perception of reasonable management action being taken against the worker. The worker bears the onus of establishing that the exclusion at s 32(5) does not apply. See Q-COMP v Rowe3. [160] In determinations regarding management action, the following authorities were cited:  Q-COMP v Rowe4;  O'Brien v Q-COMP5;  Misevski v Q-COMP6;  Svenson v Q-COMP7;  Millroy v Workers' Compensation Regulator8;  Bowers v WorkCover Queensland9;  Davis v Blackwood10; and  WorkCover Queensland v Kehl11. 3 Q-COMP v Glen Rowe (2009) 191 QGIG 67 4 Q-COMP v Glen Rowe (2009) 191 QGIG 67 5 O'Brien v Q-COMP (2007) 185 QGIG 383 6 Vesna Misevski v Q-COMP (C/2009/29) - Decision <http://www.qirc.qld.gov.au> 7 Svenson v Q-COMP (2006) 81 QGIG 629 8 Millroy v Workers' Compensation Regulator [2016] QIRC 050 9 Karen Bowers v WorkCover Queensland [2002] 170 QGIG 1 10 Davis v Blackwood [2014] ICQ 009 11 WorkCover Queensland v Margaret Kehl [2002] 170 QGIG 93 -- 38 of 75 -- 39 [161] The exclusion has the effect of removing from the definition of "injury" under the Act and psychiatric or psychological injury that is causally related to reasonable management action taken in a reasonable fashion. See Parker v Q-COMP12. The process becomes somewhat more complicated (as in this case) where there are numerous stressors identified by a worker although authority suggests that a worker need only establish one stressor that can be properly regarded as giving rise to the disorder as a consequence of conduct that falls outside the nomenclature of reasonable management action taken reasonably. See Q-COMP v Rowe13. The management action needs to engage with the stressors on only one basis, where it is regarded as not reasonable management action taken reasonably, for the exclusion to not apply in relation to the injury. See State of Queensland AND Q-COMP14. Further difficulties arise regarding the exclusion of some of the multiple stressors where findings of reasonable management action taken reasonably are made and in such circumstances it is a matter of whether factual findings as to the presence of stressors that are not excluded can properly be regarded as giving rise to the relevant disorder. [162] The test to be applied in relation to a determination of management action as reasonable is an objective test. The perception of the worker is irrelevant and it is the substance or reality of the behaviour or conduct that must be considered. See Merle Prizeman v Q-COMP15. However certain facts peculiar to a particular worker ought to be taken into consideration where those factors are known to management. See WorkCover Queensland v Kehl16. The mere fact that a psychological or psychiatric injury arising out of management action was not sufficient to give rise to findings negating the exclusory provision. There must be a positive and discrete finding apart from the occurrence of injury in relation to the quality of the management action taken. See RACQ Operations Pty Ltd v Q-Comp17. Other authorities regarding the circumstances of management action cited included:  CS Energy Limited v Q-COMP18; and  Keen v Workers Rehabilitation & Compensation Corporation19. [163] The terms "bullying", "harassment" and "unfair treatment" were addressed with reference to a decision of Brown v Cashman20 where the Victorian Court of Appeal had adopted the following definitions: "Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Within this definition: 'Unreasonable behaviour' means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten. 12 Parker v Q-COMP [2007] QIC 25 13 Q-COMP v Glen Rowe (2009) 191 QGIG 67 14 State of Queensland AND Q-COMP (C/2009/42) - Decision <http://www.qirc.qld.gov.au> 15 Merle Prizeman v Q-COMP (2005) 180 QGIG 481 16 WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93 17 RACQ Operations Pty Ltd v Q-Comp (2003) 174 QGIG 824 18 CS Energy Limited v Q-COMP [2008] QIC 57 19 Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 20 Brown v Cashman [2013] VSCA 122 -- 39 of 75 -- 40 'Behaviour' includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening. 'Risk to health and safety' includes a risk to the mental or physical health of the employee." Consideration of Issues Causal Connection Between Work and the Disorder [164] The submission addressed the two stressors identified as the aetiology of the disorder as workplace bullying, harassment and unfair treatment by Reed in addition to issues around Whitton's excessive workload. [165] In terms of the two medical opinions relevant to the crux of this matter the following commentary was provided: Pears [166] Pears had been heavily influenced by Whitton's self-reporting in forming her opinion that bullying and harassment was the basis of her diagnosis and had a view that Whitton's personal issues were not impacting on her life at the relevant time which was inconsistent with evidence given by Whitton about her mother's condition. The clinical notes compiled by Pears contained no mention of the term "micromanagement" and there had been acceptance by her that the first occasion work had been mentioned it had not given rise to a view Whitton was suffering symptoms at a clinical level. In the seventh session it was considered for the first time that there was any symptomatology at a clinical level although Pears had indicated that the suggested symptoms were at a clinical low level. Pears had noted a change in Whitton "over a couple of weeks" which proceeded importantly on the basis of perception being reality. Dr Ruberry [167] The Workers' Compensation Medical Certificate issued by him referred to an Adjustment Disorder from workplace harassment with the cause of injury nominated as "an unexpected and undeserved performance management assessment". A referral for treatment in January 2014 identified nothing from work as a basis for an elevation in stress with matters contained in the referral relating to personal issues only, all connected to personal issues regarding Whitton's immediate family. Dr Ruberry also had proceeded on the basis that everything Whitton had told him was true and his diagnosis was therefore contingent on the factual basis reported to him. Development of psychological or psychiatric injury [168] The opinions to establish the development of the disorder in question were reliant upon acceptance of certain behaviours regarding bullying, harassment, intimidation, and termination of employment that should not be accepted by the Commission as Whitton had not established the existence of any of the behaviours. Her perception of such behaviour does not prove the presence of such behaviour. It was important to note -- 40 of 75 -- 41 that the alleged disorder arose in the context of a background of a previous psychological disorder and a complex array of personal issues with the clinical notes expanding on the personal issues as they related to her attendance upon a counsellor. The clinical notes were said to be inconsistent with the evidence of Whitton around the commencement of counselling and the assertion that the general practitioner's referral related to workplace matters is not supported by the general practitioner's records. The earliest reference to work issues occurred on 13 January 2014 and was only an oblique reference and low level issues of a subjective nature. In the same notes the first mention of "micromanagement" was recorded. The evidence of Whitton that her attendance upon the psychologist because of a combination of work and personal issues should be rejected by the Commission. [169] Whitton in her evidence-in-chief identified numerous issues relating to her concerns about what had been occurring in the workplace and the effect this had upon her level of distress. Those issues included:  passive-aggressive behaviour;  unexpected work performance assessment;  notions of bullying and harassment;  Reed's overall treatment of her in the course of her employment;  application for carer's leave; and  outside of hours emails. [170] The Commission, it was submitted, should find that there was no behaviour on the part of Reed that could be properly regarded as "bullying, harassment or unfair treatment" and further there were no clinical symptoms relevant to her condition prior to late March or early April 2014. The Commission could not be satisfied that Whitton suffered an injury which was in the nature of a psychological or psychiatric disorder and as the behaviour upon which the relevant medical opinions was made was not established. Whitton had failed to prove to the requisite standard that the behaviours she had reported as causing her presentation had in fact occurred and therefore the opinions based on that reporting should not be accepted. If this submission is not accepted then the issue for determination is whether the management actions occurring through late March and early April 2014 could be said to arise out of reasonable management action taken reasonably. The Workplace [171] There were numerous pieces of evidence which were instructive in terms of the way in which the workplace operated, that included references to:  flexibility;  personal appointments without approbation; and  willingness to provide support during a difficult period in Whitton's life. Staff surveys were undertaken which demonstrated a commitment to learn about staff views on how the office was run. Workload -- 41 of 75 -- 42 [172] The evidence regarding workload as a stressor had not arisen at any point prior to April 2014 as a source of stress. Reed felt she had accommodated staff and workload issues by providing numerous staff to assist Whitton with McDowall giving evidence of providing assistance to Whitton in relation to her work on policy. [173] Whitton's evidence as it related to Gill was inconsistent with the weight of evidence on how the organisation worked with it being submitted that as appropriate accommodations were made by the organisation and there was a full team present through early 2014 when symptoms related to work could properly be accepted to have developed, that a finding could not be made that Whitton suffered any disorder as a consequence of excessive workload. Management [174] At all relevant times Reed was the CEO of CREATE, had been in the organisation for almost six years and was eminently qualified for the job. She gave evidence of supporting Whitton in a manner of things both personal and work-related. There were regular meetings between the two for the purpose of discussing Whitton's work activities that provided feedback in relation to Whitton's work. Reed added strategies to assist and support Whitton with her work and fully expected if there were issues in relation to the manner in which she treated Whitton then the "catch-up" meetings would have provided an opportunity for those to be raised. [175] On the evidence of Whitton that Reed had been a "micromanager", such a term had no Oxford Dictionary definition and whilst the term may be used in common parlance, there was no definition or consistency of use. The claim by Whitton raises the issue of perception in terms of the development of any disorder as a consequence of the management action and was not the subject of any reliable evidence. [176] Reed denied being a micromanager in spite of there being no proper definition of the term, however Reed indicated if she had micromanaged then she had done a bad job as Whitton had not performed in accordance with expectations. Reed denied changing the goal posts and there was no evidence of any behaviour that could properly be characterised in that fashion. The philosophy relied on by Reed for intervention accords with what would be reasonably expected by a CEO in any organisation. [177] There was no reliable evidence of bullying, harassment or unfair treatment by Reed by way of micromanagement through early 2014 and leading up to the development of any disorder. The Meetings [178] The meetings said to be the precursor to the cessation of employment were the subject of documentary and oral evidence. Reed had observed policy and procedure prior to the meetings plus had been in communication with HR specialists. Concerns had been raised on numerous occasions about Whitton's performance through low level regular "catch-ups" and she had at no time questioned Reed in relation to that process. A supervision meeting had been held between Reed and Whitton which had been described as a means of raising the level of the formality without going to a formal performance process. This meeting was in no way a warning meeting and as Reed had referred to a softly softly approach in terms of Whitton and the process embarked upon regarding the meetings. -- 42 of 75 -- 43 [179] The meeting of 3 April 2014 was attended by Reed, Bushett, Whitton and Bridget Kinch (who gave no evidence in the proceedings). Reed had proceeded with the meeting despite a recommendation from her HR person (Bushett) not to have an interim meeting as it may have been confusing and the option proposed by Bushett was for a more formal performance management process. Reed gave evidence on her reasons for persisting with the meeting and considered it was a more suited process to achieve her goals which were to:  keep Whitton on staff; and  encourage her to raise her performance levels. Reed summarised this meeting with follow up correspondence which included a number of options in terms of outcomes and with emails between Reed and Bushett remaining consistent with the identified outcomes. Whitton had not raised issue with the record of the meeting and maintained normal interaction between herself and Reed between the first and second meeting. [180] The second meeting had been scheduled for 7 April 2014 but was delayed at Whitton's request and in the period between meetings there was evidence regarding Whitton having attended upon Devlin where matters about her employment were discussed and consideration was given to the approach to be taken at the second meeting. A document was prepared on her expectations of remaining with CREATE and acknowledging there was room for improvement from her as a valued member of the organisation. Devlin's evidence went to a proposed statement of commitment to be delivered in the form of an opening statement at the meeting and of a willingness to respond to the issues raised. Reed opened the meeting indicating it was a formal disciplinary process and it was Devlin's understanding the approach from the meeting was to develop a Performance Plan. [181] Whitton's recall of the second meeting was that at the commencement of the meeting Reed had said words to the effect that it was a "first and final" meeting to discuss concerns. Devlin's notes of the meeting and his oral evidence were not consistent with the position advanced by Whitton. The evidence of Reed and Bushett was similar in nature to that of Devlin regarding the meeting. Importantly the evidence given by Whitton noted she had felt shocked, overwhelmed, destabilised with her professionalism having been attacked which was a critical piece of evidence as it best elucidates the cause of her distress and development of any psychological or psychiatric disorder. [182] The evidence about what happened at the second meeting will be relevant to the evaluation of the reasonableness of the management action as it establishes the proposition that the occurrence of any disorder related to Whitton's perception of the action rather than the action. There was no evidence that should be accepted that objectively permits the finding that Reed's intentions were not genuine in wanting Whitton to remain in the organisation and Devlin in his evidence felt that this meeting had met the needs of all parties. [183] Overall the evidence of Whitton's perception that she had not been made aware of issues in relation to her performance throughout her employment is inconsistent with the bulk of evidence pertaining to the content of the meeting and emails that passed between her and Reed regarding work. The submission went on to further challenge -- 43 of 75 -- 44 the perceptions of Whitton in relation to the proposition that Reed had wanted her out of the organisation, such perceptions were not supported by the evidence before the Commission. [184] Whitton in evidence to the Commission indicated she had resigned in circumstances where she had no choice which again demonstrates the perception she had been operating under during the course of the period the disorder developed. Whitton later accepted she had a choice and this should be accepted since she assisted in the preparation of documentation in the form of Exhibit 44. [185] In terms of the process embarked upon by Reed that was said to have demonstrated reasonableness at all levels and had added to it a further step that was less formal than a performance management plan as provided for in national policy and guidelines. On numerous occasions at low level meetings issues were raised in terms of Whitton's performance and strategies to support Whitton in the role were in place. There was nothing about the process in undertaking or embarking on the meetings that would suggest unreasonableness in its nature of execution. The meetings were supported by appropriate and relevant information. The meetings were timely and demonstrated flexibility to meet relevant schedules with there being no evidence of improper influence or pressure. Whitton was at all times permitted support persons and in all of the circumstances a finding should be made that the meetings were conducted in a manner that would attract a finding of reasonableness both in their nature and the manner in which they were undertaken. Therefore any psychological or psychiatric disorder found to have arisen out of the meetings would be excluded on the basis of reasonable management action taken reasonably. The Witnesses [186] The submission addressed the evidence given by various witnesses in the proceeding which included the following commentary:  Bushett - was unhelpful and non-cooperative in providing evidence and plainly wrong. She had no proper recollection, was evasive of matters that were prejudicial to her and demonstrated an animus of Reed regarding giving the same job to different people. Whilst it was the case that Bushett had indicated Reed definitely did not use the words "first and final" warning in any meeting it was submitted that the Commission should approach her evidence with great caution having regard to her affinity with Whitton and the difficulties she had with CREATE.  Gill - gave evidence in a clear and forthright manner about her involvement in policy and research whilst at CREATE and of her involvement with the organisation prior to Whitton having commenced employment. Gill had been aware of Whitton's attendance at personal appointments during work hours due to her personal physical issues and of other matters in her personal and professional life. Gill spoke of a supportive environment within the office and also in positive terms regarding Reed. The Commission could have confidence in relying upon her evidence which was clear, responsive, demonstrated consistency and given without any stake in the proceedings. -- 44 of 75 -- 45  Whitton - had not given any useful evidence outside of what appeared in correspondence and records about the process of the meetings. Whitton was evasive, did not accept simple propositions put to her and had formed an adverse view of Reed's management style and reacted to the perceived style but never raised the issue with Reed. There was a reaction from her to the performance process which she had seen as an attack on her credibility when in was nothing other than a process designed to raise issues about her performance and retain her within the organisation. Whitton's evidence should be treated with caution having regard for her lack of recollection on critical matters and clear inconsistences with documentation. The evidence was given in a manner that lacked precision, was unhelpful and was typified by jargonistic terms that did not descend to factual matters that creates significantly difficulty for a fact finding mission.  Ahern - gave evidence which essentially attacked the organisation, included opinion evidence not properly supported by documentation and did not relate to any factual matters as the centre of the controversy in this case. Her evidence ought to be disregarded.  Reed - gave extensive evidence which demonstrated no inconsistency with documentation, was responsive and helpful in sometimes difficult circumstances. Her knowledge of relevant facts and documents was comprehensive and her evidence could be accepted by the Commission with comfortable reliance. Conclusion [187] The expert evidence proceeded on a factual foundation that had not been made out and does not permit findings of bullying, harassment, unfair treatment by Reed against Whitton. The allegations of micromanagement do not find their way into facts in such a fashion to ground findings that would enable the medical findings to be accepted. Further the evidence does not permit findings consistent with case law regarding actual behaviour that falls within the nomenclature of those terms. [188] There was no proper causal relationship having regard to timing and sequencing between suggestion of excessive workload and any onset of a psychological or psychiatric disorder. The evidence does not permit findings of:  excessive workload at any time that it might be found a psychological disorder may have arisen; and  such a disorder having developed in late March or early April 2014 in conjunction with a performance process. [189] The evidence had not established that management action undertaken at the time any psychological or psychiatric disorder may have arisen was other than reasonable and was not taken reasonably. The exception provided for in s 32(5) of the Act has not been excluded and a finding should be made that Whitton did not suffer an injury for the purposes of s 32 of the Act. -- 45 of 75 -- 46 [190] The Appeal should be allowed. Regulator [191] The Appeal is a hearing de novo in which each party has an opportunity to present evidence bearing upon the issue of the claimant's entitlement to compensation pursuant to the Act. Contrary to the Appellant's submission, it is the Appellant employer that bears the onus of showing that the decision to accept the claim was wrong. In the matter of Rossmuller v Q-COMP21 the decision of President Hall does not justify the claim of the Appellant regarding the argument around onus in that the President recorded that the Appellant worker "who was seeking to disturb the status quo carried the onus of proof". Preliminary Comments - Parameters of the Issues [192] The Appellant submits Whitton is not entitled to compensation upon two bases:  evidence does not establish Whitton suffered a psychiatric condition in circumstance where the employment was "the major significant contributing factor" to that condition; and  if the Commission does not accept the above proposition then any psychiatric condition arising in the circumstances where employment was the major significant contributing factor would be excluded on account of an application of the "reasonable management action" exclusion. [193] The significance of the evidence regarding the circumstances in which Whitton was injured cannot be overlooked in that it firmly established that by 4 April 2014 Whitton had already suffered an injury within the meaning of the Act. The circumstances relevant to this factor are:  4 April 2014 Whitton consulted Dr Ruberry having been advised by email on 28 March 2014 that her next supervision session would "cover performance related issues rather than focus on the work in play";  on 3 April 2014 Whitton had attended the purported performance meeting with Reed; and  Dr Ruberry on 4 April 2014 diagnosed Whitton as suffering an adjustment disorder on account of a stated cause of injury as being "unexpected and undeserved performance management assessment". [194] The evidence leading up to 4 April 2014 will be of crucial importance although that is not to say that the events which occurred thereafter are not relevant. The Regulator submits that the preceding events reveal that Whitton was, in light of her frequent regular interactions with Reed, subjected to an unexpected performance assessment for which the true character is clearly revealed by the events which took place after 4 April 2014. 21 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au> -- 46 of 75 -- 47 [195] The Appellant has submitted that virtually since the commencement of Whitton's employment the decision by Reed to introduce "performance related issues" into an already scheduled supervision meeting should not have come as a surprise and was justified in the circumstances. Further that the decision of Whitton to discontinue her employment after 4 April 2014 was of her own volition and not prompted by Reed. [196] The submissions of the Appellant should be considered in light of what will be demonstrated to be the preponderant weight of the evidence. Setting the Scene [197] Whitton commenced with CREATE on 22 April 2013 as Manager of Policy and Research having previously held a policy position within the Queensland Government with her immediate previous role being Chief of Staff for a Minister of the same Government. According to Whitton's evidence her immediate past position was "very demanding" and required familiarity with a number of areas of social policy. Whitton's evidence also included a frankness regarding her own history of depression and mental health issues for her daughter all of which was within the knowledge of Reed. [198] CREATE is a charitable institution whose purpose is to provide advocacy for "children and young people" in care. Reed had been the CEO since approximately December 2007 and her husband (McDowall) was a board member who also undertook at times paid work for the organisation. [199] It is undisputable that soon after commencing work Whitton experienced a shortage of staff usually assigned to her area of work. April to October 2013 [200] To support the claim that the notice of performance assessment on 28 March 2014 was not unexpected, the Appellant has endeavoured to present that Whitton's performance was under question from the time she commenced employment and that would have been apparent to her. Consideration of evidence [Exhibit 6] does not support the claim but reveals that a number of documents that refer to "catch-ups" between Whitton and Reed in which there were notations that stated:  "Here are catch-up items for today - feel free to add yours as well"; and  "On my list for us to chat about are…" followed by a list of discussion items. [201] On staff shortages, Reed's notes included "Are additional supports required". Reed's response in cross-examination around this entry had detracted immeasurably from her credit and reliability. There was further cross-examination of Reed in terms of her diary notes [Exhibit 6] that were said to simply reflect in the end a process of nothing more than regular "catch-ups" and reflect Reed's micromanagement style. Probation Assessment 31 October 2013 [202] Reed gave evidence that in the first few months managers were on steep learning curves however in the case of Whitton she seemed to take longer to get her head around things, seemed distracted and Reed would have to frequently explain minor -- 47 of 75 -- 48 details to her. Reed was informed by Whitton within the first few months about mental health issues for herself and daughter in addition to serious issues effecting her mother and low level work-related issues which prompted a really supportive effort from Reed so work would be done. A probation meeting held three months after commencement was described as "very bland" and at six months issues with Whitton's performance had "sort of increased a bit". [203] A probation appraisal document [Exhibit 34] did not in any way reflect the level of concern raised by Reed in her evidence with Reed under cross-examination being unable to explain the comments in the appraisal which said "no major performance gaps are evident". The allegations around issues with Whitton's time management were not reflected in the probation appraisal and Reed was evasive and disingenuous in her responses about having failed to inform Whitton at the time of the appraisal about concerns regarding her performance and conduct. November-December 2013 [204] In this time period the principle event was CREATE's national conference which brought evidence from Gill of assisting Whitton with policy writing. Gill's evidence was rejected by Whitton in her evidence however it was accepted that Gill was enlisted to assist with the preparation and conduct of the national conference. Other material before the proceedings refutes Gill's assertions about the policy work. The McDowall Contribution [205] The Appellant devoted a considerable amount of time in taking evidence from McDowall about assistance he had provided to Whitton in order for her to undertake her duties. There were some 19 documents [Exhibit 42] which seemed to identify that assistance. [206] A reasonable examination of that material fails to disclose that McDowall was providing any meaningful support to Whitton let alone compensate for any alleged lack of performance. It was established in the cross-examination of McDowall that as a director of research it was his role to put the "finishing touches" on any publication put out to the public domain by CREATE and secondly he had control of the data base which required Whitton and other staff to come through him to gain access to that information. January-March 2014 [207] From late 2013 Whitton's mother was having health issues which were of concern and it can be inferred that the state of her mother's health continued to be a concern into March 2014. During this period the Appellant relied upon advice from Challenor in respect of managing Whitton however the evidence of Challenor regarding "more than 10…less than 20" email communications between mid-2013 and March 2014 that were exchanged between her and Reed was not supported by such emails as they were not produced in the proceedings. An examination of the evidence and material reveals that Reed had in the period up to 16 February 2014, chosen not to tell Whitton her performance was under consideration at the time although Reed eventually conceded she had been managing Whitton "from a performance perspective". -- 48 of 75 -- 49 [208] The written communications between Reed and Challenor [Exhibit 38] focus on an issue regarding the "friendship" between Whitton and Bushett along with other personal issues effecting Whitton rather than her work performance. Reed had also raised similar personal issues being experienced by another staff member at the time. Consideration of Evidence at this Stage [209] At this point it has been well established that the alleged level of Whitton's underperformance had not been reflected in two contemporaneous documents (probation assessment - 31 October 2013 and supervision record of 4 February 2014) where one would reasonably expect such to appear. Reed in evidence had claimed that as early as 31 October 2013 Whitton was an "industrial relations nightmare" meaning it was incumbent on Reed to have unequivocally alerted Whitton to genuine concerns if so held by Reed. Bushett and Ahern [210] In assessing Reed's work interactions, the Commission is entitled to take into consideration evidence relating to interactions with Bushett and Ahern in how as a manager she had acted towards Whitton. Bushett and Ahern gave similar evidence regarding Reed being a micromanager which included:  very controlling with her staff;  staff members allowed very little freedom to make decisions; and  involved in everything. [211] Ahern gave further evidence regarding:  the narrow scope of a risk assessment she had been asked to conduct;  a non-anonymous staff survey; and  irregular reporting and concealment of staff turnover figures. The description by Ahern of a trip to Sydney to speak to the Board Chairman about the organisation's problems which had been arranged by Reed and McDowall and the ultimate failure to undertake that task reflected quite adversely on Reed and possibly McDowall. [212] Reed was said to have told Bushett the reason for Ahern's resignation from CREATE was as a result of being bullied by her (Bushett) which in the hearing had been denied by Ahern. [213] There was no sustainable reason for the evidence of these two witnesses to be rejected. Late March 2014 [214] In the period 26/27 March 2014 email exchanges [Exhibit 7] between Reed and Whitton show no issues regarding performance and yet at 8.58 am on 28 March 2014 Reed sent her an email that included the following crucial passages: -- 49 of 75 -- 50  "A supervision session has now been scheduled for next Thursday April 3. Will cover performance related issues rather than focus on the work in play (another meeting will be arranged to do that)"; and  "We have covered a variety of performance related issues generally in our catch-up sessions, and some were covered in our last supervision". [215] Further in general terms issues to be discussed were identified:  quality or reports - submissions;  timeliness of work deadlines;  advocacy effectiveness; and  concluded with an invitation to bring a support person. [216] Whitton responded by stating the contents of the email were "unexpected and concerning". April 2014 [217] Prior to the meeting of 3 April 2014 between Reed and Whitton there were some other email exchanges that included:  Bushett to Reed (2 April 2014) - where Reed wants to go to a "first formal disciplinary meeting next week" is counselled by Bushett "to play strictly by the rules";  Reed replies (2 April 2014) - "I will give her time to reflect on her capacity and ability to be able to meet requirements of the role (which I will outline for her at the meeting) over the weekend, or to discuss alternative options with you";  Reed (2 April 2014) shares concerns with Challenor around Bushett's proposal;  Jobs Australia to Bushett (3 April 2014) - makes clear reference to employer having to "consider their options for ongoing employment may actually lead the employee to resign"; and  Bushett to Reed (3 April 2014) - Bushett unequivocally asks: "If Claudia [Whitton] Asks my opinion as to whether she had any chances of turning this around, do you want me to be frank?...Given the matter is already going to a disciplinary hearing…". [218] Bushett in her evidence expressed concerns around Challenor's practice of "first and finals" and of a discussion with Reed where it was indicated by Reed "that she didn't see that Claudia [Whitton] could come back from any performance management". [219] Reed when cross-examined was evasive around the lead up to the meeting of 3 April 2014 and documents taken to that meeting about Whitton's shortcomings. 4 April 2014 to 10 April 2014 [220] On 4 April 2014 Dr Ruberry diagnosed Whitton with an adjustment disorder with mixed anxiety and depressed mood. There were two further work meetings on 8 and 10 April 2014 and whilst in a strict sense were not relevant as Whitton was already -- 50 of 75 -- 51 injured, they assumed some relevance in what they revealed about Reed's motivation up to 4 April 2014. [221] The Regulator called evidence from Devlin who was requested by Whitton to assist her to put a case in the meetings. His evidence included the following:  Whitton never got a chance from Reed to refer to a prepared document setting out her position;  previous "catch-ups" were characterised by Reed (in the meeting) as "counselling sessions" that had been held on a regular basis;  no response was made to Whitton's comments about the probation assessment contained nothing adverse; and  no improvement plan document was sighted at any meeting. [222] Reed in her evidence had nominated two possible outcomes for this process:  Whitton could have decided to "take a chunk of time off"; or  go down the "performance management route". Reed had never raised the option of "leave" with both Whitton and Devlin denying this option was ever discussed. [223] Overall the inescapable conclusion from Devlin's evidence was that Reed was pushing an agenda which would result in the end of Whitton's employment with CREATE. For that reason Whitton elected to terminate her employment. Conclusion on Factual Matters [224] The following matters can be on the factual evidence safely established:  Reed at the very least was a micromanager not prepared to allow her managers any reasonable degree of autonomy;  her micromanagement extended to having regular "catch-ups" with Whitton to overly monitor her work;  at some point well before Whitton's probation assessment (31 October 2013) Reed had become dissatisfied with Whitton's performance but that had not been communicated to her upon occasions when it clearly should have been (31 October 2013 probation assessment and 4 February 2014 supervision session);  various staff shortages and movements created a degree of difficulty for Whitton in undertaking her duties. Attempts to show assistance from McDowall and Gill had assisted Whitton was simply not established;  by February 2014 Reed was undertaking a performance management plan by stealth with Whitton and thereafter continued to do so;  from some point prior to 28 March 2014 Reed decided Whitton was no longer suitable for her role;  from 28 March 2014 Reed embarked upon a subterfuge performance management which had the sole goal of securing the end of Whitton's employment; and -- 51 of 75 -- 52  Whitton had informed Dr Ruberry that she was suffering adverse mental health symptoms on account of an unexpected and undeserved management process. Medical Evidence [225] It would appear from the Appellant's submissions there was no challenge to the fact of injury per se but rather it is disputed that the claimant was suffering an injury to which the workplace had been the major significant factor. [226] The Appellant called no expert medical evidence to directly contradict the medical evidence called by the Regulator which had been:  Whitton had a prior history of depression which the evidence established was well managed and allowed her to work in high pressure positions;  on 2 January 2014 Whitton consulted a general practitioner (Dr Jefferies) in reference to personal stress and sought a referral to a psychologist;  first consultation with psychologist (Pears) on 6 January 2014. At second consultation on 13 January 2014 there is clear reference to Reed being "just v[very] reactive and micromanager" and seeking advice "how to handle her";  on 3 March 2014 (fifth consultation) Whitton raised issues with Pears regarding Reed with the clinical notes recording that Whitton was feeling she was "not good enough" and was "fearful of losing her job";  on 27 March 2014 the sole focus of the consultation appeared to be on concerns regarding Reed and Whitton's work;  4 April 2014 Dr Ruberry diagnoses Whitton with "an adjustment disorder with mixed anxiety and depressed mood on account of work stress - unexpected performance assessment"; and  Pears noted the "significant change in Claudia's [Whitton] presentation after the end of March 2014. [227] On whether he had investigated the various statements made by Whitton about Reed and her work Dr Ruberry had given evidence that he was in a "difficult position…accepting the patient at value". Dr Ruberry further stated in evidence: "Yeah. I mean, the patient's appearance and behaviour and body language are of importance, and I can confirm that the lady was in a distressed frame of mind at the consultation, and she didn't give any appearance of trying to be dishonest in it." Submissions Regarding Medical Evidence [228] Much authority exists for the proposition that before a tribunal of fact can act upon expert medical opinion, the factual sub-stratum underpinning such opinion must be safely established by the evidence acceptable to that tribunal. [229] The Appellant who bears both the evidential and persuasive onus had not sought to lead any expert medical evidence to contradict the opinions of Dr Ruberry or Pears persisting with the approach to seek to undermine their opinions through cross-examination. The evidence of both medical witnesses called by the Regulator -- 52 of 75 -- 53 included contemporaneous clinical notes and records. The approach of the Appellant failed. [230] There is no dispute that there were a range of mental health issues which had prompted Whitton to seek assistance from Pears in early January 2014 with there being a growing importance associated with work issues that reached a climax in late March, early April 2014 with the diagnosis of an adjustment disorder. No such diagnosis had been made before that time. The evidence readily establishes that the major contributing factor to the onset of that condition was the unexpected performance management. Concluding Submissions [231] The vast bulk of the authorities relied upon by the Appellant on the issue of what can constitute reasonable management action set out the principle of general application to a particular case and its peculiar matrix of fact, employment setting and circumstance. [232] In this case the central issue is whether the Appellant had demonstrated that it was reasonable management action to institute the performance management processes which had taken place. More specifically, that question revolves around whether the process was unexpected. [233] The preponderant weight of evidence readily discloses that it was simply unexpected and potentially motivated by improper purpose in respect of Whitton's continued employment. In the peculiar circumstances of this case, the well-established, unexpected performance management process as set out above, can only amount to unreasonable management action, both in its conception and execution. Appellant's Submissions in Reply [234] The Appellant relied upon previous submissions filed in the proceedings and accepted as a matter of first principle that the Appellant bears the onus of establishing the original decision was wrong but that was the extent the burden entails. An applicant for workers' compensation at all times must establish the requirements for such an application to succeed. This Appeal is ultimately about whether the applicant has done so. [235] The Regulator had sought to push the notion of an "unexpected and undeserved performance management assessment" with the occurrence of the injury asserted to have arisen on or by 4 April 2014. Paragraphs 5 and 6 of the Regulator's submission does not connect the injury with allegations of micromanagement, bullying or harassment, with the occurrence of the injury squarely put on the performance management meeting which can be seen in stark contrast to the medical evidence purportedly supporting the application. [236] The evidence indicates that performance issues were the subject of consideration and comment between Reed and Whitton for a significant period of time prior to 4 April 2014 through various forums most importantly the "catch-up" sessions. Issues of performance were not raised all of a sudden without any context as at 28 March 2014, having been part and parcel of the supervision process by Reed over the course of -- 53 of 75 -- 54 Whitton's employment. Therefore the process after March 2014 ought not be properly understood as "unexpected". [237] The "catch-up" sessions regardless of the name or appellation raised both performance and work in play matters, evidenced by notes from those sessions taken by Reed who in her evidence clearly identified concerns regarding a number of aspects of Whitton's performance in her role. Reed's responses to questioning in cross-examination overall did not detract from her credit or reliability and underscored the care with which she gave her evidence. [238] There was no basis regarding the handwriting in the notes [Exhibit 6 - p. 30] that would permit an adverse finding of credit against Reed with Whitton having accepted the notes in any event as being consistent with the context and content of meetings held between the pair. The probation appraisal [Exhibit 34] was not critical to the Appellant's case particularly in terms of the onus borne by the Appellant in this Appeal although it was entirely appropriate that the document was tendered. The document on any objective view was not a document critical to the case led by the Appellant and no adverse view ought to be taken on the basis it was not tendered in the Appellant's case. McDowall Contribution [239] McDowall was not a paid member of staff providing his services on a voluntary basis. He gave support to Whitton in areas that included that could be seen as usual support for a person such as Whitton although there were areas of support he did not consider fell in the normal area of support that would be provided to a person in Whitton's role. Challenor Advice [240] The absence of emails between Challenor and Reed regarding advice from Challenor did not detract from the proposition that Reed had relied upon such advice in relation to many aspects of her management. Challenor's evidence was consistent with Reed regarding the advice given and was consistent with the process adopted by Reed. [241] There was criticism of Reed in relation to the manner in which she introduced the "performance review" however an employee such as Whitton ought to have appreciated documentation about the meeting that was given to her and it was the case that the elements of performance and the precursor to the meeting as described by Reed were not so much about Whitton's performance deteriorating but that her performance was not improving. Semantics about whether Reed was managing Whitton from a performance perspective or any other perspective offers little assistance in the determination of the issues at hand. The substance of the management process adopted by Reed in relation to Whitton should be viewed objectively and reasonably as should Reed's explanation that the issues of Whitton's performance were addressed on a regular basis through the "catch-up" meetings and documented in the notes kept. The suggestion that Whitton ought not have inferred or understood that her performance was under consideration was simply without any foundation in logic or evidence. [242] Criticism had been made about a suggestion from Reed that Whitton was an "industrial relations nightmare" however the evidence pertaining to that statement had been appropriately led and it was the purview of Reed's position and obligation to draw that -- 54 of 75 -- 55 conclusion. The evidence clearly demonstrated the extent and length to which Reed went to appropriately deal with the multifactorial complexities presented by Whitton's employment particularly in the context of attempting to address the organisational issues of Whitton's employment. The approach by Reed was entirely consistent with a reasonable approach from a manager and was attended with no approbation as suggested by the Regulator. [243] The reference by the Regulator to the evidence of Bushett and Ahern was addressed in the submission on the basis of a large portion of that evidence being hearsay, particularly in terms of discussions between people that were entirely irrelevant to the issues at the heart of the Appeal. The views and opinions expressed by Ahern and Bushett about their concerns about CREATE or with respect to Reed's management was not anything other than opinions which remained untested by appropriate evidence and were opinions not accepted by Reed or McDowall. [244] The submission refuted suggestions that Reed had been evasive in her answers to a number of questions and that it was the case Reed was responsive to the questions raised in a manner consistent with other evidence given by her in the proceedings. There was nothing to suggest that Reed had been disingenuous either through intent or thought. Issue was taken with Devlin's evidence suggesting it was an inescapable conclusion that Reed was pushing an agenda which would have resulted in Whitton's employment being terminated as his oral evidence suggested nothing of the sort was being contended. Further in respect of Devlin's evidence he had accepted that options other than termination of Whitton's employment were discussed in the meetings and termination was just one of the options. [245] The following propositions had not safely been established:  that Reed was a micromanager as there was a factual basis for the application of the management practices that in the circumstances pertained to Whitton's employment;  the probation assessment had not demonstrated concerns about Whitton's performance;  that Reed's communications with Whitton in relation to her employment performance clearly indicated deficiencies;  that appropriate assistance and support had not been given to Whitton and staff shortages over the course of Whitton's employment was something CREATE could control;  that the management process adopted by Reed was performance management by "stealth"; and  that Reed had formed the view Whitton was not suitable for her role. Conclusion [246] An Appeal of this nature is a hearing de novo with the standard of proof upon which the Appeal must be determined being that of "on the balance of probabilities". [247] The Appellant in the course of the proceedings, in written submissions advanced the proposition that the onus of proof in terms of the exclusion operation of s 32(5) of the Act fell upon the claimant (Whitton). It was submitted that: -- 55 of 75 -- 56 "The worker seeking to assert that the psychological or psychiatric disorder falls within the terms of s.32 bears the onus of establishing that the exclusion at subparagraph (5) does not apply: Q-COMP v Rowe (2009) 191 QGIG 67 @ 68. That is, the worker must lead evidence indicating that the injury was sustained in circumstances that could not be regarded as reasonable management action taken in a reasonable way, and that the injury did not arise from the worker's perception of reasonable management action." [248] Further submissions were made by the Appellant that for the purposes of this Appeal it was Whitton who bears the burden of establishing on the balance of probabilities that:  she suffered a personal injury as claimed;  her injury arose out of or in the course of her employment;  her employment was a major significant contributing factor in the occurrence of the injury; and  the injury being a psychological or psychiatric injury, was not excluded by the operation of s 32(5) of the Act. [249] The Regulator in their written submissions countered by submitting: "It is well settled that an appeal hearing such as this matter is a hearing de novo in which each party has an opportunity to present evidence bearing upon the issue of the claimant's entitlement to compensation pursuant to the Workers' Compensation Rehabilitation Act 2003 (the Act). Contrary to what is asserted by the appellant in its submissions at paragraph 6, it is the appellant employer that bears the onus of showing that the decision to accept the claim was wrong. A thorough reading of the decision cited by the appellant, Rossmuller v QComp (C/2009/36) reveals there is nothing in this decision of President Hall which would justify that submission by the appellant in respect of any onus borne by the claimant. I note in paragraph 2 of that decision that President Hall recorded that the appellant worker 'who was seeking to disturb the status quo carried the onus of proof'." [250] The Appellant in submissions in reply conceded as a matter of first principle the Appellant bears the onus of establishing that the original decision was wrong but with some qualification in that an applicant for workers' compensation has the onus of establishing the requirements for such an application to be accepted pursuant to the relevant legislation. [251] In Rossmuller v Q-COMP22 it was found by President Hall: "Mr Rossmuller, who was the applicant for compensation and who was seeking to disturb the status quo, carried the onus of proof. To establish his claim under the Act, Mr Rossmuller was required to establish: (a) that he was a worker; (b) that he suffered a psychological injury; (c) that the injury arose out of or in the course of his employment; 22 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au> -- 56 of 75 -- 57 (d) that his employment was a significant contributing factor to the injury; and (e) to negative any issue under s. 32(5) of the Act raised by his own evidence or by evidence led by Q-COMP." [252] The onus of proof more specifically has been the subject of consideration previously in the Industrial Court of Queensland where President Hall in State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne23 (Coyne) and SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller24 (SPE), in respect of Appeals mounted by an employer made findings that were recorded in the following terms: Coyne: "It would be odd if an employer aggrieved by a decision of WorkCover confirmed by the Statutory Review Unit had the right to require the worker to go to proof at a trial. … The appeal pursuant to s. 498 is, as the language of s. 506 suggests, about the decision. One may readily accept that on an appeal against the decision the appellant bears the onus of satisfying the Tribunal that the decision appealed against was wrongly made, compare Traut v. Faustmann Brothers Pty Ltd (1983) 48 ALR 313 at 319 per Toohey J and 325 per Lockhart J. The appeal pursuant to s. 498 would be a very unusual appeal indeed if, by filing a notice of appeal, the appellant might impose upon the Statutory Review Unit (or the administrative agency acting for it) the carriage of the case in which it bore the onus of justifying the decision appealed against." SPE: "It is necessary to say something about the onus of proof. Though the appeal to an 'appeal body' under the Act is by way of a hearing de novo, it is an appeal against a review decision. The appellant, in this case SPE Pty Ltd, seeks to disturb the existing review decision. There is no provision analogous to s. 226(2) of the Mining and Quarrying Safety and Health Act 1999 to require that the appeal body approach its task 'unaffected by the existing review decision'. If the Appellant is successful, the appeal body is required to make orders varying the decision, or setting aside the decision and substituting another decision, or setting aside the decision and returning the matter to Q-COMP with appropriate directions, see s. 558(1) of the Act. Additionally, whilst (as here) the worker may elect to become a party to an appeal by his employer against Q-COMP, see s. 549(3) of the Act, the worker is not a necessary party to any such appeal. I can see no foundation for the Appellant's submission that the onus of proof was not carried by SPE Pty Ltd." [253] It is clear that the onus of proof in this Appeal falls upon the Appellant who to succeed must on the balance of probabilities establish at least one of the following points:  Whitton at the relevant time was not a "worker" within the meaning of s 11 of the Act; 23 State of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne [2003] QIC 118 24 SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision <http://www.qirc.qld.gov.au> -- 57 of 75 -- 58  Whitton did not pursuant to s 32 of the Act sustain an injury of a psychiatric or psychological nature;  if Whitton had sustained an injury then the injury either did not arise out of or in the course of her employment or was an injury where her employment was not the major significant factor;  that any injury sustained was one that arose out of reasonable management action taken in a reasonable way or, alternatively occurred as a result of Whitton's expectation or perception of reasonable management action taken against her. Worker [254] The Appellant for the purposes of s 11 of the Act accepted that Whitton was a "worker" at the relevant time therefore the Commission is not required to determine this issue therefore for all intents and purposes Whitton was a "worker" with an entitlement to in the circumstances lodge a valid claim for compensation pursuant to the Act. Did Whitton suffer a personal injury of a psychiatric or psychological nature pursuant to s 32 of the Act and if such an injury was sustained did it arise out of or in the course of her employment and was her employment the major significant factor causative of the injury? [255] It is a matter of record that Whitton due to her family circumstances sometime in the 1990s had been diagnosed with a mental health condition in the form of depression and whilst she described the condition as "not so severe depression" she had since that time managed her situation with the use of anti-depressant medication and at times sought and received counselling when the need arose. [256] In her previous employment with the Government, prior to her commencement with CREATE she had limited absences from work and at the time of her father's passing had increased the dosage levels of her medication. Reed in her evidence indicated that Whitton had informed her quite early in the employment of her mental health diagnosis and that she was being medicated for her condition. Whitton had also informed Reed of the health issues faced by her daughter at that time. [257] A Patient Health Summary from the West End Medical Practice [Exhibit 50] was tendered in the proceeding that contained clinical notes taken by various general practitioners at the Practice in respect of consultations involving Whitton for the period 8 October 2013 through until 27 April 2015. The clinical notes confirmed that on 8 October 2013 a prescription for antidepressant medication was issued which acted as confirmation of evidence given by Whitton regarding the taking of such medication to manage her condition. [258] There were consultations on 22 October 2013, 9 December 2013, 11 December 2013 and 21 December 2013 for a range of complaints, none of which were connected to any form of a mental health condition. [259] On 2 January 2014 Whitton attended upon Dr Jefferies for which the clinical notes identify the reason for the visit as being depression and further identified issues causative of the condition as:  long standing problems with depression; -- 58 of 75 -- 59  mood worse recently; and  a number of stressors. There were also issues noted in respect of both her mother and daughter's health at the time which were contributing to her condition. Whitton had sought and was provided with a referral to see a psychologist (Pears) but had not requested an increase in the dosage level of her antidepressant medication. [260] Further consultations occurred on 8 January 2014, 21 February 2014 and 24 March 2014 where treatment was provided to Whitton for medical conditions which were not again connected to mental health issues. [261] On 4 April 2014 Whitton attended upon Dr Ruberry with the clinical notes recording:  Reason for visit: Adjustment Disorder with mixed anxiety and depressed mood.  Subjective: work stress - unexpected performance assessment.  Psychiatric: poor sleep, early morning waking, low self-esteem, depressed mood, anxious, stress at work, relationship problem, financial problems, no recent bereavement, no irritability, panic attacks, no compulsive behaviours, no auditory hallucinations, no visual hallucinations, no suicidal thoughts, no suicide attempts, no substance abuse. [262] Dr Ruberry in the course of the consultation completed a Workers' Compensation Medical Certificate in which he identified Whitton as suffering an Adjustment Disorder from workplace harassment with the stated cause of injury being "unexpected and undeserved performance management assessment". The stated date of injury was 28 March 2014. [263] Dr Ruberry was subject to cross-examination regarding the diagnosis of 4 April 2014 providing evidence that:  Whitton on the day in question was in a distressed frame of mind and gave no appearance of being dishonest with him;  he was aware of pre-existing treatment for depression;  in recounting her circumstances at the consultation she became quite emotional and upset; and  he understood that Whitton had been referred to a psychologist (Pears) in January 2014 for non-work-related matters. [264] The diagnosis had been made pursuant to the Diagnostic and Statistical Manual on consideration of the relevant criteria and Dr Ruberry due to his training and knowledge felt confident with the diagnosis. [265] Pears (the psychologist) had first seen Whitton on 2 January 2014 and tabled a report [Exhibit 45] in the proceedings, and in addition consultation notes and correspondence [Exhibit 46] relating to her treatment of Whitton. Whitton had presented with a condition consistent with a diagnosis of Adjustment Disorder and had reported to her -- 59 of 75 -- 60 of "feeling harassed and intimidated by her manager who 'micromanaged' her and constantly criticised Ms Whitton's performance in front of others in the workplace". [266] A perusal of Pears' treatment notes for Whitton identified that a range of personal non-work-related issues had been raised in the initial consultations however as early as the second consultation on 13 January 2014 the notations reflected the workplace in the form of "C's manager is reactive, a 'micromanager' - how to handle her". [267] Whilst the ongoing consultations from 13 January 2014 continued to cover a range of non-work-related issues there were also more regular references to other difficulties in particular with Reed. [268] The evidence of a medical nature before the Commission was limited to that provided by Dr Ruberry and Pears. The Appellant had sought to challenge all facets of the diagnosis of an Adjustment Disorder that included not only the condition but also the connection with her employment and whether such an injury if sustained was as a result of her employment being the major significant factor. The medical practitioners were said to have solely relied upon Whitton's self-reporting of her workplace circumstances rather than on levels of behaviour being established in the proceedings that may have corroborated her version of workplace events. In the course of cross-examination both medical witnesses were questioned on whether they had independently investigated the veracity of Whitton's allegations about her workplace situation however it must be stated that the expectation a general practitioner or psychologist would undertake such investigations of this type is certainly not founded on any pattern of conduct exhibited by expert medical witnesses appearing before this Tribunal in appeals of this nature. [269] In the case of Dr Ruberry he acknowledged there were some difficulties in accepting on face value what a patient may inform him however in this case he gave evidence of observing Whitton's appearance, behaviour and body language at the time of making his diagnosis in addition to her distressed frame of mind and drew the conclusion she had not given the appearance of being dishonest about her circumstances. Personal Injury [270] On whether Whitton suffered a personal injury for the purposes of s 32 of the Act in the form of a psychiatric or psychological nature, the Commission is of the view that the diagnosis of an Adjustment Disorder and issuing of a Workers' Compensation Medical Certificate on 4 April 2014 by Dr Ruberry which confirmed the date of injury as 28 March 2014 is sufficient to meet the requirements of the Act. [271] Dr Ruberry was fully cognisant of Whitton's previous medical history and treatment for depression at the time of his diagnosis and exercised his judgement with that information at his disposal in making his diagnosis of injury. [272] The Appellant in the prosecution of the Appeal was unable to disturb Dr Ruberry's diagnosis to the extent that an alternate finding could be made with respect of Whitton suffering a personal injury. Did the injury arise out of, or in the course of employment? -- 60 of 75 -- 61 [273] In consideration of whether the injury suffered by Whitton arose out of, or in the course of her employment the Workers' Compensation Medical Certificate (issued 4 April 2014) made specific reference to the "unexpected and undeserved performance management assessment" as the stated cause of injury. In the proceedings there was a plethora of evidence dealing with workplace issues in respect of:  workload;  managerial conduct;  supervision; and  disciplinary process. These issues with the exception of the disciplinary process are likely in one form or another been "in play" for a period of time commencing shortly after Whitton started in her role at CREATE and at various times thereafter in the course of her employment. [274] There was also for consideration a range of personal issues affecting Whitton's circumstances whilst employed at CREATE and a history of depression dating back to the 1990s which was said to have some bearing on the causal nature of the personal injury. [275] In the period from April 2013 until December 2013 there was no evidence that Whitton had been absent from work due to issues relating to her mental health or that she sought counselling to deal with specific mental health issues in that time period. There was evidence confirming Whitton had been prescribed with medication to assist with the management of depression which had apparently been a long-standing form of treatment engaged in by Whitton. On 2 January 2014 Whitton through a general practitioner had requested a referral to a psychologist and subsequently a mental health plan was actioned which led to numerous sessions with the psychologist in the first three months of 2014 providing treatment for a mixture of personal and workplace issues. [276] On 28 March 2014 Whitton forwarded an email to Reed at 8.21 am advising that she was "really not well today and given I'm off to Melbourne on Sunday I'm going to stay home and get better". At 8.58 am some 37 minutes after Whitton's email was sent Reed responded to her email advising that:  a supervision meeting had been schedule for 3 April 2014;  there was a need to more formally discuss areas of concern with Whitton's performance that included:  quality of reports/submissions;  timeliness of work and deadlines; and  advocacy effectiveness;  welcome to have a support person at the meeting. [277] On 3 April 2014 a meeting was held with Reed who later in correspondence to Whitton (dated 3 April 2014) stated amongst other things: "You are directed to attend a formal disciplinary meeting to be held on Monday 7 April 2014, at national office 3/56 Peel Street, South Brisbane at 11:00 am. -- 61 of 75 -- 62 At the meeting Deidrie Bushett, Human Resources Manager, will be present to scribe. If we are able to satisfactorily resolve the concerns there may not be any need for further action. However, if we are not able to satisfactorily resolve the concerns, the outcome of this meeting may be disciplinary action, which could include a first written warning. You are invited to have a union or other personal representative present at the meeting. Please advise today if this is not sufficient time for you to arrange support." [278] Whitton attended upon Dr Ruberry on 4 April 2014 and was subsequently diagnosed with an adjustment disorder and a Workers' Compensation Medical Certificate was issued to the effect that in Dr Ruberry's opinion Whitton was suffering a personal injury that arose out of, or in the course of her employment with the stated date of injury being 28 March 2014. [279] I am satisfied that the evidence before the proceedings is sufficient to establish that the psychiatric/psychological injury suffered by Whitton arose out of or in connection with her employment at CREATE. Was the employment the major significant factor causative of the injury? [280] The Act a s 32(1)(b) provides that: "…for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury." [281] An Inquiry into the Queensland Workers' Compensation Scheme was undertaken in 2013 by the Finance and Administration Committee of the Queensland Parliament (Report No. 28) and in the Foreward by the Chairperson the following was stated: At page xv: "Definition of injury The Committee has considered the arguments about whether the definition of injury should be 'the' or 'a' major significant contributing factor and has concluded that the current definition is appropriate and should remain unchanged with the exception of psychological injuries." At page xix: "…the definition be amended to be 'the major significant contributing factor' rather than the current 'a major significant contributing factor' for Category B type psychological injury claims." [282] Subsequent to the Inquiry the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 was introduced into the Queensland Parliament and in the course of the passage of the Bill through the Parliament the [then] -- 62 of 75 -- 63 Attorney-General and Minister for Justice the Honourable J.P. Bleijie in the Introduction of the Bill stated that: "The bill will increase the onus on workers to prove psychiatric and psychological disorders are work related. Workers will have to satisfy insurers that their employment was 'the most' significant contributing factor to the injury or aggravation in order to be compensated." [283] The current provision at s 32(1)(b) which came into operation on 29 October 2013 requires a claimant to satisfy that for a psychiatric or psychological injury to become an accepted claim, such injury must have the employment as "the" major significant contributing factor to the injury. [284] In this particular case the evidence identified that for a significant period of time prior to Whitton commencing employment with CREATE she had suffered from a level of depression which had been the subject of treatment through the prescription of antidepressant medication which for all intents and purposes allowed her to not only manage the condition but to function appropriately in the workplace. In January 2014 Whitton sought medical intervention with regards to her mental health for reasons predominantly of a non-workplace nature. The treatment received in the period between January 2014 and up to March 2014 allowed for the management of her mental health situation in a manner that had no obvious impact upon her employment. [285] Whitton's attendance upon Dr Ruberry on 4 April 2014 would on the evidence appear to be for symptoms far different to those for which she sought the medical intervention in January 2014 and in terms of Dr Ruberry's evidence a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood was made in which he related the development of the Adjustment Disorder to "work stress unexpected performance assessment". Dr Ruberry in making his diagnosis on 4 April 2014 did so on the full understanding of Whitton's referral to the psychologist in January 2014 and of Whitton's pre-existing condition without finding the pre-existing condition or Whitton's family circumstances had contributed in any way to the [then] diagnosed disorder. [286] The evidence both medical and other confirms that the personal injury suffered by Whitton in the course of her employment being of a psychiatric/psychological nature occurred as a consequence of her employment having been the major significant contributing factor to the injury. Was the personal injury sustained by Whitton one that arose out of reasonable management action taken in a reasonable way in connection with her employment [287] In the determination of whether the application of s 32(5) of the Act operates to exclude the personal injury suffered by Whitton from being compensatable, it is appropriate that consideration in these circumstances be given to the full period of Whitton's employment from commencement on 22 April 2013 until the issuing of the Workers' Compensation Medical Certificate on 4 April 2014. [288] On commencement of employment there was evidence of the unit for which Whitton was appointed to manage not having a full complement of staff and of a restructure which altered the makeup of full-time and part-time positions which further -- 63 of 75 -- 64 exacerbated the staff situation. Further compounding the staffing issue were leave arrangements and the engagement of new staff which occurred in or around July 2013. [289] Whilst the role according to Whitton completely differed to that of her previous employment she had found the work interesting and frequently had "catch-up" meetings with Reed that were not diarised by her as Whitton had viewed them as a casual type of engagement nor had she observed Reed taking notes at the "catch-ups", although in early 2014 Reed started to take notes of these meetings. After an initial period of employment it became apparent to Whitton that Reed in her view was a person who wanted to micromanage the way in which she performed her duties. [290] Following the completion of a six month probation period an assessment was undertaken on 31 October 2013 which provided positive outcomes leaving Whitton to understand that all with her employment was fine and there was no reason to have concerns around any aspect of her work. At the conclusion of the six month probation review, documentation was signed off by Reed as her supervisor in which the following was stated: "Claudia has successfully completed the probation review period and I look forward to continuing to work with her in this role". The probationary documentation in its entirety has been reproduced at paragraph 39 of this decision and contains comments relevant to her employment that included:  "Claudia's team over the last 6 months has changed and new members have been recruited. Unable to effectively gauge this key result area;  Claudia is developing an understanding of the organisations strategic direction;  Claudia appears to have developed positive working relationships with the team. However, it is not clear if the team are clear about their objectives due to the change in staff;  Claudia has encountered several staff changes impacting on her workload. Time management is not an issue that has been noted to date; and  Claudia is professional, experienced and committed to CREATE. Claudia is a valued member of the Leadership Committee and has demonstrated a positive and solutions focussed attitude." [291] In correspondence (dated 13 November 2013) Reed informed Whitton that her probation had been successful and contained the following comments: "Your probation period with CREATE Foundation was due to end on 21 October 2013. I am pleased to confirm your ongoing employment effective immediately from 22 October 2013. The terms and conditions of employment set out in your original Letter of Offer dated 11 April 2013 will continue to apply to your ongoing position. A remuneration review will be held in July 2014 and is dependent on funding and performance. It has been a pleasure working with you, and I look forward to our continued relationship. Thank you for your contribution to CREATE." -- 64 of 75 -- 65 [292] Reed gave evidence that in the first few months of Whitton's employment her observations were that she seemed to take longer to get her head around things which required Reed with some frequency to have to explain matters of "really minor detail" to her and at times she appeared distracted. Reed had found it difficult to gauge the effectiveness of Whitton in her role during the first three months of the employment giving evidence that at the six month stage there were issues with her performance in the following areas:  delays in replying to ministerial correspondence;  failing to meet deadlines; and  not proactively engaged with organisations stakeholders. In that six month period she had held discussions with Challenor in which she informed her Whitton had not worked out as expected. In the cross-examination phase of her evidence Reed had indicated that in taking a "soft" approach with regards to the probation appraisal she was supporting a staff member who was struggling and to encourage Whitton she had not written a "completely negative" probation review. When challenged on why the probation report did not reflect the level of concerns contained within her diary about Whitton's performance she disputed the assertion stating that it was reflected in notes but "in a very soft way". [293] Challenor in her capacity as an advisor to Reed gave evidence that three to four months after Whitton had commenced employment she had provided both oral and written advice to Reed relating to issues where Whitton was:  not completing her work in a timely manner; and  not completing work with the level of accuracy required. Reed was told to have clear conversations with Whitton, to set clear objectives in writing and follow up when the work was not up to standard. [294] Reed gave evidence of having to raise with Whitton and Bushett matters relating to breaches of confidentiality involving both staff in November 2013. [295] Also in November 2013 Reed assigned Gill to assist Whitton with arrangements around the organisation of CREATE's conference and McDowall according to Reed was part of the team assisting Whitton who had expressed concerns around her workload due to a number of staff exiting the organisation. Gill's secondment prompted evidence from McDowall that her area of expertise was programming and development whereas policy work was described in different terms. [296] Gill who ended her employment with CREATE in November 2013 had been directed by her manager to assist Whitton in the organisation of the CREATE conference as Whitton did not have a full team at the time. Gill claimed to have had a "huge" role at the time in training and program development but was able to assist and support the policy team. In October 2013 Gill had applied internally for a policy officer position and was greatly surprised when she failed to gain an interview. Gill conceded that when on secondment she had not written any policy and had "come on board" to assist with the extra workload brought about by the upcoming conference. Whitton's -- 65 of 75 -- 66 evidence was that Gill had not undertaken policy work or for that matter assisted policy officers in her team. [297] In the period between April 2013 and December 2013 Reed had in the view of the Commission abrogated her responsibilities as Whitton's manager by failing to formally raise concerns with regards to her level of performance. Appropriate intervention would have afforded Whitton an opportunity to address the particular facets of her role said by Reed to be deficient and which later were to be the catalyst of the disciplinary process commenced in early 2014. A reasonable examination of material before the proceeding in respect of the probation review would lead one to a conclusion that six months into the employment Reed was not dissatisfied (as claimed) with Whitton's level of performance and apart from the issue of ongoing funding Whitton had every reason to feel secure in her employment. [298] The evidence in this period with regards to the staffing levels in the unit managed by Whitton paints a vivid picture of a continued shortage of staff and even with the staff available there was an absence of continuity which could genuinely be instrumental in Whitton having difficulties in meeting deadlines for work undertaken by the policy section. [299] The management action by Reed in this period whilst not serving the employment interests of Whitton also one would assume was other than beneficial for the work undertaken by CREATE particularly if Reed's concerns around Whitton's performance were genuinely held. "Catch-up" meetings [300] In the course of Whitton's employment she was involved in a series of interactions with Reed described as "catch-ups" which would seemingly occur on an ad hoc basis where undoubtedly issues of work would be discussed. Reed kept diary notes of the exchanges [Exhibit 6] which according to Whitton must have been written after the "catch-ups" as prior to early 2014 she had not witnessed Reed taking notes. The content of these notes were never shared with Whitton whilst she was employed at CREATE and upon examination could hardly in a literal sense be accepted as a record of formal exchanges between Reed and Whitton with regards to performance issues as was evidenced by Reed. [301] It would be difficult on the evidence for any finding to be made that the "catch-up" meetings were scheduled on a regular basis with Whitton given formal advice as to the timing of the meetings or the matters that would be up for discussion. Further as some of these meetings occurred in the first six months of employment the question arises again as to the failure of matters such of poor performance to be dealt with at the probation assessment of Whitton undertaken in October 2013. [302] In the view of the Commission the "catch-up" meetings were nothing more than their name implies and it would be a "stretch" for findings to be made based upon the notes of Reed that such meetings were reasonably a vehicle whereby Reed raised issue in a formal manner with Whitton's work performance. Micromanaged -- 66 of 75 -- 67 [303] The Appellant in the course of submissions quite rightly identified that in dictionaries to which Tribunals of this nature would rely upon for the definition of a word or a term there is no such definition in place for the term "micromanage", that is however not to say that such a term is an unknown within the general community or more particularly in the area of business management. [304] Such a term in the view of the Commission when used to describe an activity of a manager in the workplace would generally come with negative connotations and relate to a management practice whereby a manager seeks to control or manage all aspects of a subordinate employee's activities in the workplace and quite often relates to very minor issues of employment activity. [305] There was evidence before the proceedings from three senior former managers at CREATE (Whitton, Bushett and Ahern) that Reed engaged in the practice of micromanaging with the organisation and that evidence "withstood the test" of cross-examination to the extent the Commission accepts that each of the three senior managers genuinely held the view that in the course of employment with CREATE their managerial activities were impinged upon so as to negatively impact on how they performed their roles due to Reed's micromanagement style. [306] In the case of Whitton not only was she exposed to micromanagement by Reed but also had to endure the involvement of McDowall who had a hand in all policy work (from the initial draft stage) regarding both content and editing with McDowall's evidence being that he was the "last port of call" for any material produced by CREATE that went into the public domain. Further there were times when Whitton could only access certain work-related information stored on the computer system by requesting access codes held only by McDowall. It was accepted by Whitton that McDowall did also provide assistance that enabled her to perform her role and that he was always responsive to her requests. [307] The management intervention levelled towards Whitton who had been appointed to a senior level management position at CREATE, having previously held a Chief of Staff role for a State Government Minister and the holder of a Bachelor of Arts degree with a double degree in politics was in the circumstances quite inappropriate and had the potential to cause frustration, loss of confidence, demoralise and likely impacted on her level of productivity. [308] This management style whilst not considered by the Commission as reasonable was not in my view directly causative of Whitton's psychiatric/psychological injury although undoubtedly it likely made the workplace at times an uncomfortable environment in which to operate. Supervision Meeting - 4 February 2014 [309] Reed had given evidence that Whitton's performance in 2014 had started to go a little "pear-shaped" which resulted in a supervision meeting between Whitton and herself on 4 February 2014. At the conclusion of the meeting a six page document was prepared by Reed and signed off by both participants. The following information was recorded in respect of Whitton's key areas of employment: -- 67 of 75 -- 68  Team leadership: The team is engaged, cohesive, highly functioning and achieving its results. Evidence is feedback from team members and the results achieved by the team.  Progress - NA due to staffing. The team only recently commenced.  Strategic contribution: There is evidence that the contributions of the Policy and Research Manager have had an influence on the strategic direction of the organisation.  Progress - Satisfactory.  Strategic contribution in "non-portfolio" areas: There is evidence that the Policy and Research Manager has entered into strategic debate at the senior executive table and made meaningful contributions in areas other than policy and research.  Progress - Needs clarification.  Personal achievement: There is evidence that the Policy and Research Manager has achieved her action plan objectives, even when they represent a stretch target.  Progress - Satisfactory - attention to this area required.  Achievement of staff: There is evidence that the Policy and Research Manager has been effective in coaching and encouraging staff to meet their action plan objectives. Evidence will be feedback from staff and the achievement of goals.  Progress - Satisfactory.  Relationship management: There is evidence that the Policy and Research Manager has been effective in developing effective and committed relationships with stakeholders in the sector. The evidence will be that stakeholders have increased their support of and contribution to the success of CREATE Foundation.  Progress - Satisfactory.  Success of policy initiatives: There is evidence that the Government has considered and/or adopted policy initiatives from the CREATE Foundation as proposed by the Policy and Research Manager.  Progress - Satisfactory. [310] The following areas were also identified in the document without bringing adverse commentary from Reed:  time management (including tasks and punctuality);  attitudes; and  wellbeing (workload, morale, health etc.). [311] In respect of significant achievements Whitton put forward the following outcomes which were not challenged by Reed: -- 68 of 75 -- 69  presentation of four workshops at CREATE S 25 Conference. Personally and professionally this was a significant achievement given I had no team and was not familiar with presenting at a national level to stakeholders. [312] The document concluded with the Supervisor (Reed) making the following comments: "Claudia is passionate about her area of work and is aligned with CREATE's mission and values. Claudia appears willing and eager to contribute in her role as leadership committee member and has a lot of experience to share. Moving forward there are several expectations for improvement (some of which Claudia identifies herself and has strategies in place for) including - Meeting reporting deadlines - internal data entry and report (board and LC), and government/corporate reporting. Enhanced project management oversight through attendance at training/course would also be very beneficial. The Report Care research project is a bedrock publication for CREATE. Claudia has carriage of the internal project plan to ensure that the organisation meets its obligation under the research methodology identified by the Executive Director - Research. Given the importance of the project and the fact that the whole P&R team have not been involved previously, it is essential that the CEO is consulted and involved in the approval for internal project plan, and kept abreast of progress. The P and R Manager should personally oversee this project and provide guidance to the P&R team to support the process. Claudia has embraced the Report Card and its value and is setting the wheels in motion to ensure that there is a good plan in place to ensure states are prepared, and that staff are informed prior to the commencement of the process. This has been very pleasing to see." [313] The evidence of Reed that things had gone a little "pear-shaped" with Whitton's performance as at February 2014 is not supported by her own documentation that had Whitton's progress marked as satisfactory five times out of seven, one area as not applicable at the time and just the one area where it stated that there was a need for clarification. No area of the criteria was adduced as "needs improvement". The concluding comments of Reed included: "Claudia [Whitton] is passionate about her area of work and is aligned with CREATE's mission and values. Claudia [Whitton] appears willing and eager to contribute in her role as leadership committee member and has a lot of experience to share." [314] On any reasonable consideration of the Supervision Report (dated 4 February 2014) it would identify that whilst Whitton had not reached a level of performance "above expectation" her performance to date was at a "satisfactory level" without the requirement to take remedial action in terms of how she was performing her duties. The action identified in the document for Whitton ongoing was limited to her attending a course/training on Project Management. -- 69 of 75 -- 70 [315] At the time of 4 February 2014 there was no evidence of Whitton having been informed in any reasonable manner by her employer of deficiencies in the work performance that could potentially lead to a disciplinary process being instigated against her regarding unacceptable work performance. Disciplinary Process [316] Reed towards the end of March 2014 following consultation with Challenor and still having concerns with Whitton's level of performance, decided that rather than go directly to a disciplinary process a further supervision meeting would be arranged. According to Reed's evidence the advice from Challenor included references to:  CREATE Foundation Performance Guideline; and  Jobs Australia Disciplinary Action and Termination Guide. [317] On 28 March 2014 some 37 minutes after being informed by Whitton that she was unwell Reed authored an email in which she advised of a supervision meeting to be held on 3 April 2014 identifying the need to more formally discuss areas of concern regarding Whitton's performance. The email also advised that Whitton was welcome to have a support person present which is appropriate for a disciplinary type meeting but unusual for a supervision type meeting. There was no offer extended to Whitton prior to the supervision meeting of 4 February 2014 to bring a support person along. [318] The management action of Reed to advise Whitton by email on 28 March 2014 (some 37 minutes after being advised she was not well and therefore not presenting for work) of the requirement to attend a meeting on 3 April 2014 to discuss areas of concern about performance issues not having been formally raised previously was not reasonable management action taken in a reasonable way. [319] The following day (Saturday 29 March 2014) Whitton responded by email to Reed in the following terms: "As you can imagine this is unexpected and concerning. Given that I was away sick yesterday and leave for Melbourne tomorrow and do not return until Wednesday evening I am would like to postpone the meeting until the following week to allow me to identify a support person and prepare for the meeting. I would appreciate it if you provide me with 2 or 3 dates/times you're available the week of 7 April. Jacqui, I am very committed to and passionate about my job and the work CREATE does in advocating for children and young people in out of home care and find this process very concerning." [320] Reed responded later that day by email advising Whitton the request to reschedule the meeting from 3 April 2014 had been denied. The email included the following passage: "I think that the time allowed is reasonable and certainly in line with industrial expectations. Additionally, it is not a good idea to postpone these things and far better to address in a timely manner." -- 70 of 75 -- 71 [321] Reed in giving evidence in the proceedings never waived from the position that the meeting of 3 April 2014 had not been the commencement of a disciplinary process but simply an additional layer of the supervisory process. However the veracity of Reed's evidence is put to the test upon examination of correspondence involving Reed and others prior to the commencement of 3 April 2014 meeting. These included:  Reed to Challenor - 2 April 2014 "Well Claudia came back and said she could make the Thursday so the meeting is on for tomorrow. Today I met with Deirdrie who stated up front she was uncomfortable to be at the meeting, and did not think she should be there and did not know why she would be. I outlined for her that she was there to ensure that the process was sound, and that she would take notes. She would not be actively engaged in the meeting. She originally thought that I did not want her there and that I was just sending it to her for information. I went over my concerns and evidence very briefly with her and have tonight responded to her email which seems to imply that I am circumventing process. I have clarified my position, and asked her to check it with JA. However, I am very confident that the process I am outlining is sound. I guess in defence of Deirdrie she has not had the time I have had, and is not privy to the range of detail…….hmmmmm."  Katherine Awad (Awad) (Jobs Australia) to Bushett - 3 April 2014: "I'm unclear about whether this is a formal or informal meeting. If it is a formal meeting then a letter would usually be written advising of the concerns and the employee would be invited to have a support person (refer to the attached JA disciplinary template letters). The employee is then given the opportunity at that meeting to respond to the concerns that have been raised. However, we hold concerns that having an 'informal meeting' essentially to have a discussion with an employee about whether they wish to enter into formal performance management or consider their options for ongoing employment may actually lead the employee to resign and then lodge an unfair dismissal (constructive dismissal) claim or a general protections claim. We would always advocate that if an organisation holds concerns about an employee's performance that this is dealt with under the correct disciplinary process which could lead to termination. However in the event that the employee is terminated and the organisation has followed a good process, the decision to terminate can be justified if an unfair dismissal claim is made."  Reed to Bushett - prior to 3 April 2014 meeting: -- 71 of 75 -- 72 "My modified plan: 1) The meeting is part of supervision to formally raise issues of concern, the meeting will outline performance concerns, some of which have already been identified in Supervision meetings and other discussions. Claudia will be welcome to respond. 2) I want it to be a frank and open discussion to discuss the state of performance. 4) The meeting is to let Claudia know that CREATE wants to give her time to consider the seriousness of concerns, and will provide the week end for her to do that. 5) If Claudia believes she has the capacity to be able to make the necessary improvements to her performance then we will commence the performance improvement process - on Monday 7 April. Feel free to run this past JA." [322] The supervision meeting was held on 3 April 2014 with notes made by Reed under the heading "Formal supervision with Claudia Whitton - performance". The meeting discussed issues around the quality of work delivered by Whitton in particular:  Emotions: "I'm feeling very frustrated as I have tried a range of different strategies and feel I have been very tolerant. I have also taken on additional work myself to support you. Your colleagues are also providing high levels of support. However, this cannot continue. As a Senior Manager the expectation is that your work is to a high standard, and that you can work autonomously."  My Contribution: "I have tried to improve communication channels and ensure that instructions ae clear. I've done this by seeking agenda items prior to catch ups, and summarising post the meeting via email. I also provided clearer guidance around timelines for tasks, and have explained the expectations for tasks personally and in emails and in feedback - in the documents provided. I have provided a lot of encouragement, rather than focussing on the negative. I have also allowed leave, approved change of leave dates, and extended deadlines. I have also sourced an external mentor/coach for you to support you with a piece of work. -- 72 of 75 -- 73 I've also encouraged you to seek clarification/feedback before commencing work. I've also made myself available to you. In addition, I have also made available to you a coach (to support the Business case work), and you have access to Matthew to aid the work you are doing. Joseph has also provided a high level of support, and your LC colleague Rob has undertaken a support role to you (YAG guidelines) even though his own workload is high and he is new to the role. A number of the issues are ongoing and I have instigated a range of strategies to bring the work to fruition, and I have also stepped in and called for meetings to provide clarity where I could see that the level of understanding was less than desirable (Report Card)."  Resolve: "I want to resolve this situation, and have done all I can to work with you to ensure that work is carried out in a timely manner to a high standard. There are two ways forward that I want you to take the week-end to consider. You need to determine if you in fact do have the capacity to fulfil the requirements of this role, and ask that you do not confuse this with your commitment, or passion for the cause. I want you to reflect on are you able to perform to the standard that is required of the role. This means: 1. High quality reports/submissions 2. Meet deadlines 3. Advocate effectively - be prepared, provide accurate briefing pre and post meetings, understand the issues and provide clear articulate messages. If you decide that for whatever reason, (and I fully realise that your family situation and health will impact on your decision) that you are unable to fulfil the requirements of the role then please speak with Deirdrie and she will be able to advise you on your options. We want to give you time to reflect, and provide responses to the issues raised. We will do this at a formal disciplinary meeting were you will have further opportunities to respond." [323] Following the meeting on 3 April 2014 correspondence (dated the same date) was forwarded to Whitton under the hand of Reed which contained reference to the areas of concerns about her performance in the exact same terms as set out in the meeting notes of the supervision meeting. The correspondence went on to state: -- 73 of 75 -- 74 "These concerns follow previous discussions held during our catch ups, formal supervision on February 4, and in subsequent emails. You are directed to attend a formal disciplinary meeting to be held on Monday 7 April 2014, at national office 3/56 Peel Street, South Brisbane at 11:00 am. At the meeting Deirdrie Bushett, Human Resources Manager, will be present to scribe. If we are able to satisfactorily resolve the concerns there may not be any need for further action. However, if we are not able to satisfactorily resolve the concerns, the outcome of this meeting may be disciplinary action, which could include a first written warning. You are invited to have a union or other personal representative present at the meeting. Please advise today if this is not sufficient time for you to arrange support." [324] It is a matter of record that following the meeting of 3 April 2014 there were two further meetings that clearly took the form of a disciplinary process and at the conclusion of the second of these meetings according to the evidence of Devlin he had a conversation with Whitton who cast doubt on how the employment situation could be managed going forward. Devlin's recall of the second meeting was that Reed had put forward the following two options:  a first and final warning be issued for one month with training to be undertaken; and  to discuss a mutual separation with a deed of release. [325] On the face it would appear that the conduct of the two disciplinary meetings of 8 April 2014 and 10 April 2014 was in the circumstances compliant with the appropriate procedures and processes required of such meetings and not handled unreasonably by the employer. [326] However the accepted medical evidence before the proceedings had Whitton decompensating on 28 March 2014 which coincides with the date of the advice from Reed, forwarded to her whilst unwell, and scheduling the meeting of 3 April 2014. The conduct of Reed in forwarding such correspondence 37 minutes after being informed by Whitton she was unwell and not presenting for work that day has already been determined as not reasonable management action taken in a reasonable way. [327] The situation with the advice regarding the meeting of 3 April 2014 was further compounded in my view by the nature of the meeting said to be supervisory however upon examination of the evidence and documentation leading up to and including the meeting had the hallmark of being anything but a supervision meeting and was in my view the "de facto" commencement of the disciplinary process. Reed had bypassed the traditional disciplinary process by scheduling the additional meeting and invited the attendance of a support person about which she later received advice from Awad and Bushett that such attendance would be regarded as unusual for a strictly supervision meeting. [328] Reed in the documentation arising from the meeting of 3 April 2014 made the concluding comment: -- 74 of 75 -- 75 "We want to give you time to reflect, and provide responses to the issues raised. We will do this at a formal disciplinary meeting were [where] you will have further opportunities to respond." [329] On the evidence and material available to the Commission I am satisfied that the meeting of 3 April 2014 held under the guise of a supervision meeting was in fact a meeting more aligned to that of a disciplinary process and as such Whitton had been required to participate in a process without having been made fully aware of the potential impact on her ongoing employment with CREATE and the notification provided to Whitton had been at a time when not only was she unwell but Reed had been informed of the unwellness and her inability to present for work on the day in question yet proceeded to issue the notice to attend. [330] The conduct of Reed in scheduling the meeting of 3 April 2014 as a supervision meeting and providing the notification in the manner previously mentioned was of a nature that would render the management action as being unreasonable and taken in an unreasonable way and directly related to Whitton's decompensation. Finding [331] On consideration of evidence, material and submissions before the proceedings it is open for the Commission to make the following findings:  Whitton at the relevant time was a "worker" within the meaning of s 11 of Act;  Whitton pursuant to s 32 of the Act sustained a personal injury in the form of a psychiatric or psychological nature;  the personal injury sustained by Whitton arose out of or in the course of her employment with CREATE with the employment being the major significant factor contributing to the personal injury;  the injury suffered by Whitton is not excluded from being compensatable through the operation of s 32(5)(a) of the Act as it had been found on the evidence that her decompensation was a consequence of the employer having engaged in unreasonable management action taken in an unreasonable way had led directly to the decompensation. [332] The Appeal is dismissed and the decision of the Regulator of 2 December 2014 is confirmed. The claim is one for acceptance. Costs [333] The Appellant is ordered to pay the Regulator's costs of and incidental to the Appeal. [334] I order accordingly. -- 75 of 75 --