BHP Coal Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 113

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: BHP COAL PTY LTD v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 113 PARTIES: BHP COAL PTY LTD (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/304 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 9 June 2015 HEARING DATES: 30 & 31 March 2015 (Hearing) 4 May 2015 (Respondent Submissions) 20 April 2015 (Appellant Submissions) 6 May 2015 (Submissions in reply) MEMBER: Industrial Commissioner Knight ORDERS : 1. The appeal is allowed; 2. The decision of the respondent dated 3 October 2014 is set aside; 3. Mr Bray's application for compensation under the Workers Compensation and Rehabilitation Act 2003 is rejected; and 4. The Respondent is to pay the Appellant's costs of and incidental to, the appeal to be agreed or, failing agreement, to be subject to a further application to the Commission. CATCHWORDS: WORKERS COMPENSATION - APPEAL AGAINST DECISION - worker dismissed due to safety risks arising out of Coal Mining Safety and Health Act 1999 - onus on the Appellant - where worker diagnosed as overweight and unfit for duties - where worker presented a risk to himself and others on the work site - psychiatric injury arising out of dismissal - whether injury arose out of reasonable management action taken in a reasonable way - determined injury arose out of reasonable -- 1 of 21 -- 2 management action taken in a reasonable way - appeal is allowed. CASES: Coal Mining Safety and Health Act 1999. Workers Compensation and Rehabilitation Act 2003 s 550 Delaney v Q-COMP Review Unit (2005) 178 QGIG 197 Lankheet v Q-Comp (2008) 188 QGIG 27 Lawton v Simon Blackwood [2015] QIRC 099 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 Q-COMP v Hohn (2008) 187 QGIG 139 Versace v Braun (2005) 178 QGIG 315 Vesna Misevski v Q-COMP (C/2009/29) [27] - Decision <http://www.qirc.qld.gov.au.> APPEARANCES: Mr G. C. O'Driscoll Counsel, instructed by HWL Ebsworth for the Appellant. Mr S. P. Gray Counsel, directly instructed for Simon Blackwood (Workers' Compensation Regulator). Decision [1] This is an appeal by BHP Coal Pty Ltd ("the Appellant") pursuant to s550 of the Workers Compensation and Rehabilitation Act 2003 ("the Act") against the decision of Simon Blackwood (Workers' Compensation Regulator). The worker, Mr Jamie Bray initially made an application for compensation which was rejected by BHP Billiton Pty Ltd. The Regulator substituted that decision with one that accepted the application pursuant to s 32(1)(b) of the Act. It is against that decision that the Appellant has brought this appeal. [2] It is accepted by the parties Mr Bray suffers from an injury described as a Work- Related Stress, Depression and Adjustment Disorder that occurred on or around 12 February 2014. The issue between the parties is described by the Appellant as one of form rather than substance. [3] Mr Bray's employment was terminated on 12 February 2014. Essentially, what is challenged by the Regulator in this matter is the "procedure" undertaken by BHP to effect the dismissal. The Regulator submits that the Appellant determined to terminate the worker's employment at a meeting on 12 February 2014 without any prior warning being provided to Mr Bray and in circumstances where he previously -- 2 of 21 -- 3 believed he would be attending a meeting on that date to discuss his return to work after a lengthy absence of approximately 2 years. [4] BHP submits the decision to terminate Mr Bray's employment was reasonable because it was not able to disregard specialist medical advice in respect of Mr Bray's obesity, as well as the risk his obesity presented to himself and others in the workplace, in circumstances where he had been provided with a reasonable opportunity over a long period of time to address these concerns. Further, the decision to terminate Mr Bray's employment was lawful and reasonable in circumstances where the Site Senior Executive, Mr Milful had a legal obligation to control risk at the Peak Downs Coal Mine site. Grounds of Appeal [5] The grounds of appeal filed by the Appellant are as follows: "The Appellant considers the Regulator to have erred in both fact and law in handing down its review decision dated 3 October 2014, specifically in deciding to set aside the decision of its insurer, BHP Billiton Queensland Workers' Compensation ("BHPBQWC") to reject the claim for compensation of the worker, Jamie Bray ("the worker"), and requires the Industrial Relations Commission to determine its appeal." [6] BHPBQWC, in a decision dated 20 May 2014, rejected the workers application for compensation on the basis he did not suffer an "injury" within the meaning of s 32 of the Act. BHPBQWC determined the worker's psychological injury arose out of reasonable management taken by the Appellant in a reasonable way such that his psychological injury was excluded from the definition of injury within s 32(1) of the Act. [7] Mr Bray sought a review of the decision through the Regulator which ultimately set aside the rejection and substituted a decision that Mr Bray's claim was one for acceptance. [8] The Appellant is aggrieved by the review decision and files this appeal against that decision pursuant to s 549 of the Act. Issues for Determination [9] Ordinarily, in a matter such as this, BHP Coal must prove one or more of the following: (i) that Mr Bray did not sustain an injury; (ii) that any injury sustained by Mr Bray did not arise out of, or in the course of his employment with BHP Coal; (iii) that the injury sustained was not one to which employment was the major significant contributing factor; (iv) that the injury, being of a psychiatric or psychological nature, is one which arose out of management action that was reasonable and taken in a reasonable way; or (v) in the alternative, the injury arose out of Mr Bray's expectation or perception of reasonable management action being taken against him. -- 3 of 21 -- 4 [10] There is no dispute between the parties that Mr Bray has suffered an injury in accordance with the provisions of the Workers Compensation and Rehabilitation Act 2003. The parties have submitted the sole question for determination in this matter is whether that injury is excluded by the operation of the reasonable management action provisions set out at (iv) above and contained in section 32(5) of the Act. [11] At the conclusion of the Appeal proceedings, the parties further submitted the crux of the matter could be narrowed down to whether the failure of management to advise Mr Bray of the purpose of the meeting, that is to bring his employment to an end, prior to his attendance at the meeting on 12 February in circumstances where there had been some prior discussions around his return to work, was reasonable management action taken in a reasonable way. Legislation and Relevant Authorities [12] Section 32 of the Act relevantly provides as follows: "32 Meaning of injury 1) An injury is personal injury arising out of, or in the course of, employment if - a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. 3) Injury includes the following - a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; b) an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation; (i) a personal injury other than a psychiatric or psychological disorder: (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; 4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. -- 4 of 21 -- 5 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 workers employment; b) the workers expectation or perception of reasonable management action being taken against the worker; c) action by the Authority or an insurer in connection with the workers application for compensation." [13] The relevant sections of the Coal Mining Safety and Health Act 1999 are as follows: "Coal Mining Safety and Health Act 1999 40 Obligations of holders (1) This section applies if the holder and the coal mine operator for a coal mine are or are to be different persons. (2) The holder must— (a) inform a person proposing to enter into a contract with the holder to act as coal mine operator, by notice, of all relevant information available to the holder that may help the proposed coal mine operator— (i) to ensure the site senior executive for the coal mine develops and implements a safety and health management system for the mine; and (ii) to prepare and implement principal hazard management plans for the mine; and (b) include in the contract appointing the coal mine operator an obligation on the operator— (i) to establish a safety and health management system for the mine; and (ii) other than for exploration activities under an exploration permit or mineral development licence—to be a party to a mines rescue agreement. Maximum penalty for subsection (2)—100 penalty units. 41 Obligations of coal mine operators (1) A coal mine operator for a coal mine has the following obligations— (a) to ensure the risk to coal mine workers while at the operator's mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state; (b) to ensure the operator's own safety and health and the safety and health of others is not affected by the way the operator conducts coal mining operations; -- 5 of 21 -- 6 (c) not to carry out an activity at the coal mine that creates a risk to a person on an adjacent or overlapping petroleum authority if the risk is higher than an acceptable level of risk under the Petroleum and Gas (Production and Safety) Act 2004; (d) to appoint a site senior executive for the mine; (e) to ensure the site senior executive for the mine— (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; (f) to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from coal mining operations is at an acceptable level; (g) to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system. (2) Without limiting subsection (1), the coal mine operator has an obligation not to operate the coal mine without a safety and health management system for the mine. (3) In this section— adjacent or overlapping petroleum authority means any of the following under an Act as follows if, under that Act, its area is adjacent to, or overlaps with, the land the subject of the mining tenure under which the coal mine is operated— (a) a 1923 Act petroleum tenure under the Petroleum Act 1923; (b) a petroleum tenure under the Petroleum and Gas (Production and Safety) Act 2004. 42 Obligations of site senior executive for coal mine A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations— (a) to ensure the risk to persons from coal mining operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive's coal mine workers is at an acceptable level; (c) to develop and implement a single safety and health management system for all persons at the mine; (d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine; -- 6 of 21 -- 7 (e) to train coal mine workers so that they are competent to perform their duties; (f) to provide for— (i) adequate planning, organisation, leadership and control of coal mining operations; and (ii) the carrying out of critical work at the mine that requires particular technical competencies; and (iii) adequate supervision and control of coal mining operations on each shift at the mine; and (iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and (v) appropriate inspection of each workplace at the mine including, where necessary, pre-shift inspections." Witnesses [14] The Appellant called two witnesses. These were Mr Iliffe (Manager of pre-strip operations at the Peak Downs Coal Mine) and Mr Milful (Senior Site Executive of the Peak Downs Coal Mine). [15] The Respondent did not call any witnesses. Appeal Issues [16] There is a history of interactions between BHP and Mr Bray in so far as it relates to various meetings, correspondence and medical examinations that are largely uncontested by the parties up until the month of February 2014. [17] In his oral submissions, Mr Gray, Counsel for the Regulator noted: "…the matters in issue in respect of Mr Bray's claim are quite confined to the lead up to that discussion with Mr Iliffe from the 12th of February 2014. The Application for compensation relates solely to that event, and that's consistent with what was contained in Dr Martin Notling's report…"1 [18] BHP contends the decision to terminate Mr Bray's employment on 12 February 2014 cannot be seen in isolation with respect to the historical background pertaining to this matter. The Evidence [19] Mr Bray commenced work with the Appellant in 1994. In 2008, he was promoted to the position of Shift Supervisor at the Peak Downs coal mine. In a report dated 1 Transcript of proceedings, BHP Coal Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/304, Commissioner Knight, 30 March 2015) 67-69 (D. J. Iliffe). -- 7 of 21 -- 8 7 August 2013, Dr Nothling recorded details of Mr Bray's occupation in the following terms: "He was a shift supervisor at the Peak Downs Mine, which was a BHP Billiton mine. He worked in the coal mining section with up to 30 operators working under his direction on a shift. He had been working in this role since 2008. He was on a salary package of about $160 000." [20] In his evidence to the Commission, Mr Milful, the Senior Site Executive described some the physical elements of Mr Bray's supervisory role in the following terms: "It's a fairly dynamic role and you're covering probably 25 - 30 kilometres of pit. The roles are you're – a fair proportion of that time is spent on the ground walking – moving in/around the operations. Fair bit of physical work too in regards to – I guess, for example, would be hitching up lighting plants, setting up the next shift for work, getting up onto gear, talking to operators. And later: …so engaging with his workforce as well, so he might have a crew of up to 20,25 people, so he might have to get onto another bit of machinery, whether it be for a conversation or even in an emergency situation where a supervisor is required to act and assist in an emergency situation. So certainly, risk to the individual, but also to other employees as well."2 [21] In his report dated 7 August 2013, Dr Nothling noted Mr Bray reported he had been absent from work from January 2012 to March 2012 for unrelated stress issues arising out of work. He returned to site for a period of time in May 2012 working until October 2012 when he left the site and the town of Moranbah following a series of incidents including bullying and harassment from union members who also worked at the mine. It's generally agreed that these issues play no part with respect to the injury that Mr Bray says is the result of the termination of employment and the subject of this appeal. However, the issues remain relevant by way of background as to how BHP dealt with the claimant's particular problems. Whilst Mr Bray was off work he continued to be remunerated by BHP. [22] Essentially, what is challenged by the Regulator in this matter is the "procedure" undertaken by BHP to effect Mr Bray's dismissal. The Regulator submits that the Appellant determined to terminate the worker's employment at a meeting on 12 February 2014 without any prior warning given to Mr Bray and in circumstances where he believed he would be attending a meeting on that date to discuss his return to work after a lengthy absence of around 2 years. [23] BHP argues Mr Iliffe offered direct support to Mr Bray to enable him to return to work. The claimant had weight issues, weighing approximately 160 kilograms with a height of 176 centimetres. Mr Bray was also affected by other health issues that involved alcohol detoxification, dependency issues, anger management and cognitive behavioural therapy. He was required to obtain ongoing psychological support, 2 Transcript of proceedings, BHP Coal Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/304, Commissioner Knight, 30 March 2015) 65 (S. Milful). -- 8 of 21 -- 9 medical reviews, and medication requirements in order to deal with his weight issues. Mr Iliffe discussed these issues with Mr Bray over a lengthy period of time. History leading up to the decision to terminate Mr Bray's employment [24] The major concern of BHP was Mr Bray's weight and his capacity to operate safely in a mine environment. During this period, the Appellant paid for all of the claimant's medical costs. This included direct medical costs and costs of travel associated with a series of medical consultations and assessments. [25] Mr Iliffe first interacted with Mr Bray in late 2012. The worker had been employed as a coal mining Supervisor and as such the worker directly reported to Mr Iliffe. Mr Iliffe understood, at that early stage, that the issues confronting Mr Bray and his return to work, were centred upon his accommodation needs and some other personal issues with which he was not familiar. The issue of accommodation led Mr Iliffe to contact Mr Bray and he said he raised with him what was needed to get him back to work. [26] The accommodation issues were sorted out and Mr Iliffe thought that Mr Bray would return to work, however Mr Bray told him that the accommodation matter was not the only issue and that he could still not return to work. Mr Bray said he did not feel right. This occurred around September 2012. Mr Bray provided Mr Iliffe with a file relating to a previous case which had caused him some work stresses. He was then unable to be contacted for some months having provided a medical certificate stating he would be absent from work due to emotional stress up until 9 November 2012. [27] Around November/December 2012, Mr Iliffe attempted to contact the claimant again and, in response to an email received from Mr Bray's wife, Mr Iliffe made it clear that he expected him to contact him directly. On or around 19 November 2012 Mr Bray obtained a further medical certificate from a General Practitioner in Mackay advising that he was not fit for duty due to emotional stress until 10 January 2013. [28] Medical certificates were provided by Mr Bray to BHP on 9 October 2012, 19 November 2012, and 28 December 2012. In a letter dated 20 December 2012, Mr Iliffe identified five occasions where Mr Bray had failed to respond to attempts he or other BHP representatives had taken to contact the claimant. In the same letter, Mr Bray was requested to provide Mr Iliffe with further information in regard to: (a) his fitness for work; (b) to advise the expected date of his return to work (if known); and (c) to provide Mr Iliffe with a current medical certificate in the event he required further personal leave. Mr Iliffe advised Mr Bray that if he failed to observe the requirements with regard to Medical Certificates, then appropriate disciplinary action may be taken. [29] In January 2013, a meeting was arranged between Mr Iliffe, Mr Bray and his wife. Mr Iliffe sought to discuss ways in which to help him get back to work. To progress matters, Mr Iliffe arranged for counselling for Mr Bray through BHP's Employment Assistance Program (EAP). Gryphon Psychology undertook two sessions with Mr Bray and advised that they were not going to do any more. The Appellant arranged for extra sessions for which it paid. [30] On 23 January 2013, Mr Iliffe again communicated with the Appellant advising him that he had not lodged a current Workers' Compensation Claim and therefore his time -- 9 of 21 -- 10 away from work was being considered as personal leave and was being deducted from his leave accruals. The Appellant again requested Mr Bray make contact by 25 January 2013 to advise on his progress concerning his return to work. [31] On or around 19 February 2013, the Appellant requested Mr Bray attend a medical examination in order to obtain a greater understanding of any ongoing limitations concerning his fitness for work. The appointment was made with Dr Sarkar on 2 March 2012. A description of Mr Bray's functional and physical duties were provided to Dr Sarkar. The costs of the appointment were borne by the Applicant. [32] In his report summary dated 9 March 2013, Dr Sarkar noted Mr Bray had:  significant problems with high baseline anxiety and poor coping with stressful situations;  had more risk of self-harm due to financial stressors and use of alcohol; and  challenges associated with physical weight gain and mobility. [33] Dr Sarkar recommended Mr Bray attend another medical assessment with a suitable Occupational Physician to determine his suitability to undertake his supervisory duties given his weight gain and mobility challenges. [34] In light of Dr Sarkar's observations of his weight and mobility challenges, BHP, over a period of some nine months requested Dr McCartney provide the Appellant with various reports in respect of Mr Bray's fitness for work. In particular, the Appellant sought information in relation to Mr Bray's capacity to undertake the more physical aspects of his role such as kneeling and squatting, walking on uneven ground, climbing up ladders and entering machinery and other vehicles. [35] Four assessments were undertaken over a nine month period and subsequent reports were prepared by Dr McCartney dated 2 May 2013, 26 June 2013, 2 September 2013 and 17 November 2013. In his report dated 2 September, Dr McCartney noted Mr Bray appeared to be addressing his physical and psychological symptoms but highlighted ongoing symptoms and impairment in some areas. In particular, he noted Mr Bray remained morbidly obese, therefore increasing his risk of injury and illness both at and away from work. [36] Dr McCartney was of the opinion Mr Bray urgently needed to address his obesity problem and suggested he seek specialist medical (possibly surgical) attention. Notably, Dr McCartney recorded there were specific tasks Mr Bray could not perform safely without significant and foreseeable risk of injury. With regard to Mr Bray's bilateral knee aggravation injury which appeared to have occurred outside of work, Dr McCartney opined he didn't need any specific treatment for this but significant weight loss would be necessary for these symptoms to fully settle. [37] In his final report dated 17 November 2013, Dr McCartney tracked Mr Bray's progress over the nine month period in respect of his health challenges. Dr McCartney highlighted some improvement in respect of Mr Bray's prior knee and psychiatric injuries, but continued to raise concerns, particularly in relation to his capacity to perform specific tasks noting: -- 10 of 21 -- 11 "Tasks that require Mr Bray to undertake repeated kneeling, squatting or climbing ladders pose a significant and foreseeable risk of the aggravation of the underlying degenerative condition affecting his knees. His frame is likely to have considerable difficulty fitting into a light vehicle with the dimensions and ergonomics described in your referral, without significant and foreseeable impact on safely controlling the vehicle." … "Mr Bray's obesity places him at a significant and foreseeable risk of slips, trips and falls. Research has found a positive correlation between the level of obesity and musculoskeletal injuries, especially affecting the lower limb and lower back." And later: "In the event that Mr Bray should become incapacitated, he is likely to significantly impact the safety of his colleagues should they attempt to move him." [38] Separately, in an attempt to better understand any remaining psychiatric barriers preventing Mr Bray's return to work, BHP also sought an opinion from Dr Sarkar, a psychiatrist, in respect of Mr Bray's mental state and his capacity to perform his supervisory position given his prior symptoms of anxiety and depression. In his report dated 21 August 2013, Dr Sarkar noted: "1. Mr Bray has improved to the fullest extent with no residual symptoms of his earlier anxiety and depressive state and is not presenting with risks to self and others; 2. Since my initial assessment in March this year he has improved in the domains of anxiety and phobic avoidance, anger outbursts, threats of violence…He is more comfortable with physical labour though he is obese; 3. Mr Bray can now return in his substantive role as Supervisor. He does not present a risk to himself if he were to work for lengthy periods of time alone on the mine site in each shift, for any mental health reasons." [39] Notwithstanding the improvements noted in Mr Sarkar's report with respect to his mental health, separately, Mr Bray continued to provide medical certificates to BHP prepared by Dr Cruikshank indicating he was not fit to return to work at least until 30 November 2013 due to emotional stress/reactive anxiety. In a series of emails between Mr Bray and Mr Iliffe from late September to mid-October 2013, he indicated he would like to return to work however, BHP continued at the same time to receive medical certificates from Dr Cruikshank advising Mr Bray was under stress and not fit for work. [40] Likewise, despite sending emails to Mr Iliffe suggesting a preparedness to return to work, Mr Bray took steps in December 2013 to initiate a Total and Permanent Disability ("TPD") claim through Shine Lawyers. Mr Iliffe understood that in the event the claim was accepted, then Mr Bray would not be able to continue with his employment. Mr Iliffe's evidence was that he considered the continued supply of -- 11 of 21 -- 12 medical certificates and the initiation of TPD claim somewhat at odds with any intention Mr Bray may have expressed about returning to work. [41] On 28 November 2013, in response to an email from Mr Iliffe indicating he had sought some further information from Dr McCartney in respect of his comments relating to Mr Bray's capacity to safely fit into and operate a light vehicle, Mr Bray made the following comments: "G'day Daniel – I have both of Dr McCartnry (sic) reports and at no point does he mention that he worried about me being able to drive a light vehicle….So you can't try to sack me for that now, so now you will use my weight as a way out. I was this weight when I was promoted to a supervisor. The day I last worked it was ok for me to be one of the few people on the mine site to have a light vehicle licence and drive visitors to the mine site, around." [42] On or around late December 2013, Mr Iliffe arranged for a functional assessment to be undertaken by Occupational Therapist, Kerry Mallon to assess Mr Bray's ability to drive a Ford Ranger Ute and a Series 70 Landcruiser at Peak Downs Mine. In her report dated 26 December 2013, Ms Mallon made the following findings:  Mr Bray has demonstrated safe and efficient ability to operate both the Series 70 Landcruiser and the Ford Ranger Utility (fitted with a seat belt extender);  Mr Bray has demonstrated safe and efficient methods of entry and exiting the vehicle taking care to adjust the seat prior to entry and moving slowly, avoiding jarring on exiting;  As per Dr McCartney's recommendation, Mr Bray's obesity may increase the risk of musculoskeletal injuries affecting his lower limbs and back, even with sedentary work. [43] Mr Iliffe subsequently arranged a meeting with Mr Bray and Ms Mahoney (HR) on 10 January 2014 at the Grand Suites in Mackay. At that meeting, Mr Iliffe sought to clarify Mr Bray's position in respect of his return to work. Mr Bray indicated that he wanted to return to work, but the difficulty for Mr Iliffe was that Mr Bray had also submitted a TPD claim. [44] In a diary entry for 10 January 2014, Mr Iliffe made the following notes:  I explained to Jamie …I had concerns regarding his weight and knees etc.;  I asked Jamie … what he had done to address his weight; alcohol issues, anger issues etc.;  He said he was on a weight loss programme;  I asked him how much weight he had lost recently and …gauged 'a bit' as his clothes were getting loose;  I asked about his TPD claim…JB said initially that he was unaware Shine had submitted a claim;  I asked JB if he was looking for a financial way out, we may be able to help as that seemed to be what it looked like after saying in one breath that you were OK to return to work but then submitting a TPD claim;  Jamie said he wanted to return to work for security purposes;  I explained to JB that I still had concerns with matters all the docs had raised with returning to full duties; -- 12 of 21 -- 13  I also explained to JB I had an obligation to him, the company and under the Act not to place him at risk. [45] In the same month Mr Bray emailed Mr Iliffe requesting he be paid a bonus. He also requested he return to a role in the ROM control room, an office based role, which he suggested would "lower the risk of me being on uneven ground" and allow Mr Iliffe to keep an eye on the progress of his weight loss. The Appellant subsequently advised Mr Bray there were no positions available in this area. [46] A follow-up meeting between Mr Bray and Mr Iliffe was scheduled for 29 January 2014. At that point, Mr Iliffe's evidence was, the choices available to Mr Bray were a performance plan in respect of his weight issues or a mutual seperation. After that meeting, the worker had asked Mr Iliffe to provide information concerning a separation agreement with the Appellant. In a diary entry for 29 January 2014, Mr Iliffe made the following notes:  "I asked if he [Jamie] had thought about our last meeting and what he wanted to do;  I asked how he felt about going back to work on crew and if he was really ready for what that meant;  I went through last medical OT report and outlined I still have a few concerns around the walking on uneven ground and he would have to manage that;  I told JB when he returned he would have a performance management plan for him to work under;  JB asked what other options there were;  I said only other options were a separation agreement;  JB said he never wanted to ask this question but what would it look like and I told him I would have to find out;  I told JB to give me a call after he spoke to his family as it was a big decision;  I told him if he wasn't, that I need to get on with it and get him back to work as its dragged out for too long and asked how the weight loss was going and he said he was playing golf most days, walking and in the pool with the kids;  He said he had done absolutely everything possible." [47] Later that day Mr Iliffe made a separate diary entry which included the following notes: "JB called and asked to look at a separation agreement so that he could decide if that was a path he wanted to consider after." [48] Mr Iliffe subsequently obtained a separation agreement for Mr Bray's consideration. In essence, Mr Bray would have received the following monetary payments in the event both parties had agreed on the terms of the separation: Accrued Annual Leave $ 89,000.60 Accrued Long Service Leave $104,666.07 6 months' notice period $ 82,200.00 Ex Gratia Payment $ 25,000.00 [49] On 4 February 2014, Mr Bray contacted Mr Iliffe by phone to discuss the separation agreement. According to Mr Iliffe's diary notes, Mr Bray indicated he was seeking legal advice in relation to the agreement. Mr Iliffe's notes indicate in the same -- 13 of 21 -- 14 conversation he told Mr Bray he would look into return to work plans and "what they would look like" and get back to him. In cross-examination, Mr Iliffe said that on 5 February 2014 he had discussed with Mr Bray his return to work on 17 February 2014. Mr Iliffe had also advised Mr Bray of the shifts he would be working in the event he returned to work. Mr Iliffe said that when considering the workers return to work he still remained uneasy about the ramifications of having Mr Bray returning to work in terms of his obligations under s 39 of the Coal Mining Safety and Health Act 1999. [50] The legislation includes provisions which re-inforce the safety and health of workers at a coal mine and the requirement to protect themselves from risk of injury or illness. It also requires a coal mine worker to carry out the worker's activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk. Section 39 (e) specifically states that a coal miner has the additional obligations "to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others." [51] The Appellant's particular concern related to the risks associated with Mr Bray's weight and his walking on uneven ground, particularly given the state of his knees, in circumstances where supervisors move lighting plants around. The Appellant also had concerns about the risk to other workers if they had to assist him. On a number of occasions Mr Iliffe said he told Mr Bray that he was unable to see any progress being made by him in respect of his weight loss. [52] Discussions ensued around the question of a Physical, Psychological Impairment process ("PPI") that was used in conjunction with a return to work plan. This process relates to those workers suffering a physical or psychological impairment. The plan is developed by including goals and milestones with the purpose of returning an injured worker back to work. However, at the time of discussing this plan there had been no specific goals identified for the worker except for discussions around him losing weight. [53] Mr Iliffe said that after two years, the Appellant had paid more than $40,000 of Doctor's bills for Mr Bray and had also back-filled his job, but it had seen minimal effort on his part to return to the workplace. Mr Bray had also advised he was seeking legal advice with regard to a TPD claim. Following a series of discussions concerning possible options to be adopted by Mr Bray, Mr Iliffe said Mr Bray contacted him indicating he wanted to return to work. Mr Iliffe understood Mr Bray's interpretation of the separation agreement was that it had given him nothing other than what he was entitled to. The decision to terminate Mr Bray's employment [54] Mr Iliffe reported to Mr Milful to discuss the various interactions he had with Mr Bray. It was Mr Iliffe's evidence that the ultimate decision to determine the matter lay with Mr Milful. Mr Iliffe's evidence to the Commission in respect of his discussions with Mr Milful is: "after Jamie had rejected the separation agreement, and you were working towards what you could do and just get him back to work? Yes. Yes, I did. And was an agreement reached at that stage between yourself and Mr Milful? Yes, there was. -- 14 of 21 -- 15 And what was that agreement? The agreement at that stage was we were going to move to termination of Jamie’s employment, based – yep. And what was discussed between you and Mr Milful? We discussed progress over the period of two years: what I’d seen, how I felt we’d progressed and, you know, look, I’ll be honest, I’d seen nothing and I’ve said that many times today. I referred back to the doctors’ reports, in discussions with Mr Milful around the increased risk of musculoskeletal injuries, walking on uneven ground, that that was a major part of Jamie’s job, and that under section 39, it was a risk that I saw. It was not an acceptable level to put a - for me to put an employee at risk back into the workforce, to put other employees at risk, and I believed that section 42, you know, obligations of the site senior executive, they have to provide risks in the work – you know, in – in the workplace, that are an acceptable level. And I just didn’t believe that was the case. Was that your decision, or Mr Milful’s decision as the SSE, or a joint decision? That – the ultimate decision lays with Sean as the SSE. And I was simply putting forward the facts of where we were at, at that point in time. And had you formed an opinion at the time you were discussing with Mr Milful, taking into account the two years efforts you’ve made, that there was any point in continuing further ? No, I of getting him back to work? No. I believed we were at that point and, you know, at – at some point you’ve got to make a decision. And I felt that nothing was going to change going forward."3 [55] Mr Iliffe recalled that he spoke to Mr Milful explaining the reasons why he did not believe it was safe for Mr Bray to come back to work and that his recommendation to Mr Milful to terminate Mr Bray's employment only came about after his discussion between the two men, noting that "I did not walk into his office and say I think we should terminate him", he simply presented the facts. [56] Mr Milful's evidence in respect of his conversation with Mr Iliffe was that:  Mr Iliffe had provided him with his findings in relation to whether Mr Bray had the capacity to return to work and safely undertake his duties;  Mr Iliffe raised concerns as to whether Mr Bray could: (1) walk on uneven ground; (2) walk a reasonable distance; (3) get on a machine; and (4) act and assist in an emergency situation. [57] Mr Milful's understanding was that Mr Bray presented an unacceptable risk to himself and to other employees on site. He said the decision to terminate Mr Bray's employment was a mutual decision made by both himself and Mr Iliffe after considering all the facts. Whilst he was aware Mr Iliffe had been working with Mr Bray to get him back to work for some time he was not aware Mr Iliffe had held some discussions with Mr Bray on 5 February 2014 about what a return to work might look like in the event Mr Bray did return to work. 3 -- 15 of 21 -- 16 Communication of Decision to Mr Bray [58] On Monday 10 February, Mr Iliffe contacted Mr Bray to arrange a meeting at the Mackay Grand Suites in two days' time for 12 February. Whilst Mr Iliffe suggested he bring a support person, he acknowledged he did not advise Mr Bray that the purpose of the meeting at the hotel was to discuss the termination of his employment. In his evidence to the Commission, Mr Iliffe said he preferred to raise the issue of termination of employment with Mr Bray directly on a face to face basis. In the same meeting, Mr Iliffe recalled he had advised Mr Bray the proposed separation agreement was still an option. [59] Mr Bray was subsequently forwarded correspondence dated 14 February 2014 confirming the termination of his employment. Ten days later he lodged an application for compensation with BHPBQWC for a psychiatric/psychological injury. Submissions [60] The Appellant cited a number of decisions from the Commission which considered the instances where management action might not be perfect, but it was ultimately seen to be reasonable and taken in a reasonable manner. In particular, Mr O'Driscoll, Counsel for the Appellant referred to President Hall's comments in Q-COMP v Hohn4 at page ten where he noted: "Reasonableness does not equate with perfection. It is also the case that reasonableness does not equate with industrial fairness." [61] In Langkheet,5 the Commission stated "that the proposed outcomes did not suit the appellant does not make the actions of the QCS unreasonable". In Delaney v Q-COMP6, it was noted: "…the appellant is entitled to a global evaluation of the actions in which the management team had engaged to assess whether such action was reasonable and taken in a reasonable way." [62] Mr Gray, Counsel for the Regulator, cited a number of authorities which he considered would be of greater assistance to the Commission in the determination of this particular matter, including Versace v Braun7 where President Hall found that reasonable management action had been taken in an unreasonable way, identifying that the lack of reasonableness was found in adequacies in the consultation and/or negotiations between the worker and the employer's representative, which occurred spasmodically over a period from on or about 21 April 2003 to 6 May 2003. [63] Mr Grey also pointed to Misevski v Q-Comp,8 where the employer's processes included a Guide to Performance Management, which allowed for a non-performing employee to be put on a PIP. Ms Misevski was placed on a PIP, however in implementing the plan, the employer departed from the steps in the plan. In this matter, President Hall found that in circumstances where the Employer's Human Resource Guide to Performance Management ("the Guide") put in place a reasonable 4 (2008) 187 QGIG 139. 5 Lankheet v Q-Comp (2008) 188 QGIG 27. 6 Delaney v Q-COMP Review Unit (2005) 178 QGIG 197. 7 (2005) 178 QGIG 315. 8 Vesna Misevski v Q-COMP (C/2009/29) [27] - Decision <http://www.qirc.qld.gov.au.> -- 16 of 21 -- 17 system; by choosing to unilaterally depart from the system, the supervisor had made the system unfair and a potential source of debilitating stress. [64] The Appellant contends that the actions of Mr Iliffe over a period of two years showed he was attempting to get Mr Bray back to work and he also showed considerable empathy towards him. Further, the matter could not go on open-ended forever for the sake of both parties. Either Mr Bray's employment needed to be terminated as due to known safety constraints he was unable to return to work, or Mr Bray needed to have taken some steps for his own sake to address the weight issue which he himself knew and which was confirmed in the email traffic he sent to Mr Iliffe. [65] The Regulator contends the submission that the Appellant had been trying for a two year period to return Mr Bray to work is a gross overstatement, instead arguing those discussions had commenced in February 2013. Further, that the Appellant had failed to give due consideration to the extent and effect of Mr Bray's prior psychiatric injuries sustained because of his employment and the lifestyle changes he had made with a view to returning to the workplace. [66] Mr O'Driscoll, Counsel for the Appellant submitted it was clear Mr Iliffe considered his personal interactions with Mr Bray were important and are to be applauded in circumstances where Mr Bray already had a background of psychological issues, stress issues and other competing challenges apart from his weight problems. Further, that the decision of Mr Iliffe therefore was not made in the abstract but in tending to take into account all of these features and that he considered it was better to communicate the decision directly to Mr Bray, face to face, cognisant that such news would be upsetting. [67] Mr Gray, Counsel for the Respondent, argued the timing of the decision to terminate Mr Bray was grossly unfair in circumstances where his prior conversation with Mr Iliffe had focused on his return to work. Further, Mr Bray had been provided with no prior warning that the purpose of the catch-up on 12 February was to discuss his termination rather than a return to work process. In turn, Mr Gray submitted Mr Bray had no opportunity to prepare for the meeting. Findings and Conclusions Is Mr Bray's psychiatric or psychological injury one which arose out of management action that was reasonable and taken in a reasonable way? [68] In order to succeed in this appeal, BHP must prove Mr Bray's injury arose out of management action that was reasonable and taken in a reasonable way. [69] In Lawton v Simon Blackwood9, his Honour, Deputy President, O'Connor in determining the reasonableness of management action, considered the reasoning of Commissioner Blade in Qantas Airways Limited v Q-COMP,10 which stated: "There must have been some connection between the injury and the management action. It may have been that had he attended the meeting and decompensated after being confronted with accusations and harassment complaints without warning (an ambush), it may have been argued that the 9 [2015] QIRC 099. 10 (2006)181 QGIG 301. -- 17 of 21 -- 18 management action was not taken in a reasonable way. But it will depend on circumstances. What management must do is be reasonable, not perfect, and if it be that before a meeting can be held with a worker, he has to be told specifically what it is about, I think it is placing too high a duty upon management. Surely management asking a worker what happened in an incident is not in breach of the principles of natural justice. Each case depends on its own facts and circumstances but what is 'reasonable' is 'reasonable in all the circumstances of the case' and 'reasonableness' does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant - Delaney v Q-Comp Review Unit (2005) 178 QGIG 197."11 [70] Whilst I agree with Mr Gray's submissions that discussions between Mr Bray, Mr Iliffe and/or other BHP representatives in respect of his return to work had not extended for the duration proposed by the Appellant, the evidence indicates Mr Iliffe had been attempting to engage with Mr Bray in respect of a return to work date since at least November 2012. At one point, in late 2012, BHP was forced to send correspondence to Mr Bray noting five separate occasions over a four week period where he had simply failed to respond to various attempts to contact him. [71] On a number of occasions, Mr Iliffe physically travelled to Mackay to meet Mr Bray to sit down and discuss his return to work. In particular, the subject of Mr Bray's weight, the associated risks and questions around what measures he was taking to lose weight were raised with him on a number of occasions. In my view, Mr Iliffe's actions for the most part reflected those of a manager genuinely working towards returning Mr Bray to work. Mr Iliffe identified existing barriers to Mr Bray returning to work and then worked through them as best he could. [72] For example, Mr Bray initially raised accommodation issues as a barrier to his returning to work, so Mr Iliffe set about trying to find a solution. Likewise, in response to Mr Bray advising Mr Iliffe that he just didn't feel right, Mr Iliffe arranged a further medical examination where Dr Sarkar, a psychiatrist, who identified a number of physical and psychological barriers to Mr Bray returning to work. These included anxiety, substance abuse and anger issues, as well as physical barriers such as his obesity and mobility challenges. Mr Iliffe subsequently arranged for EAP counselling and when the standard number of consultation periods came to end, took steps to arrange and pay for further sessions in an attempt to assist Mr Bray address some of his mental health challenges so he was able to return to work. [73] In addition, Mr Iliffe took steps to arrange for Dr McCartney, an occupational physician, to undertake a minimum of four separate medical consultations with Mr Bray over a nine month time period where physical barriers to returning to work were examined and addressed. Over time, a number of the physical impediments preventing Mr Bray from returning to work such as knee injuries and other pain resolved themselves, however the weight challenges remained. [74] Notwithstanding ongoing discussions between Mr Bray and Mr Iliffe around returning to work, I can understand Mr Iliffe's confusion and concerns about Mr Bray's actions not necessarily aligning with his words, when in the latter half of 2013 he continued to receive medical certificates from another GP stating Mr Bray was not fit for work 11 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301, 307. -- 18 of 21 -- 19 due to psychological reasons, in circumstances where Dr Sarkar had already effectively cleared him to return to work. To compound the confusion, Mr Iliffe subsequently received a claim form for a TPD entitlement in December which Mr Bray appeared to have initiated on or around the same time he was sending emails raising questions about a return to work. [75] By January 2014, Mr Bray had still been unable to address the weight concerns raised by Dr Sarkar, Dr McCartney and BHP. Discussions between the two men inevitably moved towards a point where a mutual separation agreement was discussed. Certainly, by this stage there was no question that the termination of Mr Bray's employment was a matter of discussion between himself and Mr Iliffe. In fact, Mr Bray went so far as to request a copy of a proposed separation agreement. [76] There was also no question that there were still unresolved issues in respect of Mr Bray's weight, to the extent he had earlier flagged this issue with Mr Iliffe himself as a factor BHP might well rely on as a reason to terminate his employment in the future. In this respect, the discussion with Mr Bray on 12 February 2014 about the termination of his employment was not the first time the concept had been raised. Further, Mr Bray was well and truly aware of the concerns around his weight and the impediments this presented to him returning to work. This issue had been repeatedly raised by not only Mr Iliffe but also two other doctors and an allied health specialist. [77] Subsequent to reviewing the separation agreement, Mr Bray indicated in early February 2014 that his preference was to return to work. Mr Iliffe and Mr Bray's conversation moved towards a discussion around what this would look like. It was at this point that Mr Iliffe acknowledges he pointed to a particular shift that Mr Bray would be required to work in the event he returned. A potential return to work date was also identified. [78] Following this, Mr Iliffe took steps to meet with Mr Milful and a decision was made to bring Mr Bray's employment to an end in circumstances where the Appellant was not satisfied Mr Bray's weight issues did not present an unacceptable risk both to himself and other workers at the Peak Downs coal mine. [79] Mr Iliffe contacted Mr Bray and arranged to meet him in Mackay, but did not advise him about the decision to terminate his employment over the phone, instead electing to raise the matter directly with Mr Bray "face-to-face". Whilst the Regulator has taken no issue with the decision to terminate Mr Bray, it is the process or manner in which the termination was affected by Mr Iliffe that it considers to be unreasonable. That is, the failure of Mr Iliffe to give Mr Bray an opportunity to prepare himself for a meeting in circumstances where he should also have been provided with prior notice that his employer was giving serious consideration to terminating his employment. [80] On its own and certainly in circumstances where there had been no previous discussions about bringing his employment to an end, I would most certainly agree. However, in this matter, the issue of termination or mutual separation had already been raised and contemplated by both BHP and Mr Iliffe. Further, Mr Bray was well aware, through Mr Iliffe of BHP's concerns in respect of his weight and the risk this presented to himself and others. -- 19 of 21 -- 20 [81] Whilst I do have some sympathy for the psychological challenges Mr Bray experienced for prior non-related work reasons, I am satisfied Mr Iliffe provided Mr Bray with an adequate period of time and sufficient support to overcome and address various barriers to returning to work. [82] I am also satisfied there appeared to be inconsistencies between Mr Bray's stated intention to return to work and the actions he was taking to address the barriers to his return. For this reason, I can understand why Mr Bray came to an eventual conclusion in his discussions with Mr Milful about the safety risks associated with Mr Bray's weight, and in his general consideration of the matter that things were unlikely to change in the foreseeable future and that he needed to bring the matter to a conclusion one way or another. [83] The reality of the situation was that Mr Iliffe was faced with the prospect of returning Mr Bray to work while there remained significant risk factors involved with doing this. Mr Iliffe had been unable to see any progression in Mr Brays attempts to improve his health and mostly his weight over a long period of time. [84] Mr Iliffe had taken time to meet with Mr Bray on a number of occasions personally to check on his progress and wellbeing and to also engage his wife in those conversations. The decision made by the Appellant to terminate the services of Mr Bray was made against a lengthy period where essential support was given to Mr Bray by the Appellant to improve his general health. [85] When discussing the issues with Mr Milful, the over-riding considerations were the risk factors involved, not only for Mr Bray but also for his work colleagues, if he was returned to his workplace. [86] Mr Iliffe chose to advise Mr Bray personally of the termination of his employment because he believed it to be the most reasonable thing to do rather than sending him an e-mail to that effect, in circumstances where Mr Bray's normal place of work was a remote mine site some distance from where he resided. [87] Whilst from a procedural perspective a better course may have been for Mr Iliffe to provide Mr Bray with some indication that termination was seriously being considered, in my view, it was not unreasonable for Mr Iliffe to affect the dismissal in the manner in which it was, particularly given the long history of the matter and prior conversations that had been held in respect of the termination of Mr Bray's employment. [88] I am satisfied on the evidence before the Commission that Mr Bray's injury arose out of or in the course of reasonable management action taken in a reasonable way and accordingly, s 32(5)(a) of the Act operates to remove the psychological or psychiatric disorder from the statutory definition of injury. Orders I make the following orders: 1. The appeal is allowed; 2. The decision of the respondent dated 3 October 2014 is set aside; -- 20 of 21 -- 21 3. Mr Bray's application for compensation under the Workers Compensation and Rehabilitation Act 2003 is rejected; and 4. The Respondent is to pay the Appellant's costs of and incidental to, the appeal to be agreed or, failing agreement, to be subject to a further application to the Commission. -- 21 of 21 --