Australasian Lubricants Manufacturing Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) and Harvey [2015] QIRC 80
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Australasian Lubricants Manufacturing
Company Pty Ltd v Simon Blackwood (Workers'
Compensation Regulator) and Harvey [2015]
QIRC 80
PARTIES: Australasian Lubricants Manufacturing
Company Pty Ltd
(Appellant)
v
Simon Blackwood (Workers' Compensation
Regulator)
(First Respondent)
and
Harvey, Martin
(Second Respondent)
CASE NO: WC/2013/348
PROCEEDING: Appeal against a decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON: 8 May 2015
HEARING DATES: 6 to 9 May 2014
24 November 2014
22 December 2014 (Appellant's submissions)
28 January 2015 (Second Respondent's submissions)
20 February 2015 (First Respondent's submissions)
26 February 2015 (Appellant's submissions in
reply)
MEMBER: Industrial Commissioner Thompson
ORDERS: 1. The Appeal is upheld.
2. The decision of Simon Blackwood
(Workers' Compensation Regulator) of
17 October 2013 is set aside with the claim
not being one for compensation.
3. The Appellant is entitled to costs of and
incidental to this Appeal. The parties are
directed to confer on the matter of costs
and failing agreement, to be subject of a
further application to the Commission.
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CATCHWORDS: WORKERS' COMPENSATION - APPEAL
AGAINST DECISION - decision of Simon
Blackwood (Workers' Compensation
Regulator) - Appellant bears onus of
proof - standard of proof - balance of
probabilities - witness evidence - witness
credibility - worker sustained a personal injury in
the form of a psychiatric injury - the personal
injury arose out of, or in the course of, his
employment and the employment was a
significant contributing factor to the injury -
reasonable management action taken in a
reasonable way - Appeal upheld - decision of
Simon Blackwood (Workers' Compensation
Regulator) set aside with claim not being one for
compensation - Appellant entitled to costs of and
incidental to this Appeal.
CASES: Workers' Compensation and Rehabilitation Act
2003 s 11, s 32, s 550
Lewis v Q-COMP (unreported, Industrial
Magistrates Court of Queensland, Lee IM, 15
January 2010)
Davidson v Griffith Muir's Pty Ltd [2010] FWA
4342
Kelly Biggs-Venz v Ozcare [2010] FWA 4797
Dissanayke v Busways Blacktown Pty Ltd [2011]
FWA 3549
Nishat v Degremont Pty Limited [2010] FWA
1938
Rebecca Jones v Brite Services [2013] FWC 3392
Travis Northey v Bradken Resources Pty Limited
[2013] FWC 6423
State of Queensland v Q-COMP and Beverley
Coyne [2003] QIC 118
Browne v Dunn (1893) 6 R 67
Groos v WorkCover Qld [2000] QIC 52
Avis v WorkCover Queensland (2000) 165 QGIG
788
Moorhead v Moreton Bay Regional Council
[2014] QIRC 29
Brisbane City Council v Simon Blackwood
(Workers' Compensation Regulator) [2014]
QIRC 104
APPEARANCES: Mr A. Ross of Sparke Helmore Lawyers for the
Appellant.
Mr S. McLeod, Counsel directly instructed by
Simon Blackwood (Workers' Compensation
Regulator), the First Respondent.
Mr M. Henry, Counsel instructed by Hall Payne
Lawyers, for the Second Respondent.
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Decision
[1] Australasian Lubricants Manufacturing Company Pty Ltd (the Appellant) lodged with
the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers'
Compensation and Rehabilitation Act 2003 (the Act) against a decision of the
Q-COMP Review Unit (Q-COMP) released on 17 October 2013. Since the filing of
the Appeal, a number of amendments have been made to the Act which include the
Respondent to the Appeal being abolished and from 29 October 2013, the new name
replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator)
(the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to set aside the decision of WorkCover Queensland
(WorkCover) to reject an application for compensation from Martin Harvey (Harvey)
and substitute a new decision to accept the application in accordance with s 32(5) of
the Act.
[3] On 4 November 2013 Vice President Linnane issued an Order that the worker
(Harvey) be a party to the Appeal.
Relevant Legislation
[4] The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of,
employment if the employment is a significant contributing factor to
the injury.
(2) However, employment need not be a significant contributing factor to
the injury if section 34(2) or 35(2) applies.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric
or psychological disorder arising out of, or in the course of, any of the
following circumstances -
(a) reasonable management action taken in a reasonable way by the
employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management
action being taken against the worker;
(c) action by the Authority or an insurer in connection with the
worker's application for compensation."
Note: This section of the Act was amended effective on 29 October 2013 with this
matter determined subject to the legislation prior to the amendment.
Nature of Appeal
[5] The Appeal to the Commission is by way of a hearing de novo in which the onus of
proof falls upon the Appellant.
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Standard of Proof
[6] The standard of proof upon which an Appeal of this nature must be determined is that
of "on the balance of probabilities".
Evidence
[7] In the course of the proceedings, evidence was provided by six witnesses.
[8] 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
[9] The witnesses for the Appellant were:
Trevor Greenaway (Greenaway);
Craig Dietzsch (Dietzsch);
Dr Mohamed Milad (Dr Milad); and
Dr Peter Bradley (Dr Bradley).
[10] The witnesses for the Worker:
Harvey; and
Tracey Harvey (Tracey Harvey).
Appellant
Greenaway
[11] Greenaway, the Human Resources Manager for the Appellant since March 2011,
holds a Commerce Degree and Graduate Diploma in Psychological Studies. When he
commenced this employment Harvey was already in employment as Plant Manager.
Harvey had no reporting obligations to Greenaway reporting directly to Dietzsch.
[12] In March 2013 Harvey took long service leave and according to Greenaway was
"forced" to return to work on 8 July 2013. Upon his return he worked for a couple of
days and then had a couple of day's absence due to sickness. Harvey returned to work
(again) on 15 July 2013 and on the following day Phil Murtagh (Murtagh) contacted
Greenaway with concerns after having witnessed Harvey going on a "bit of a tirade"
regarding work not completed in his absence and of overhearing raised voices and, in
particular, Harvey using a number of expletives directed towards subordinate
employees. Murtagh who had acted as Plant Manager in Harvey's absence whilst on
long service leave was concerned the behaviour was not in keeping with the Code of
Conduct nor was it the behaviour expected from a leader in the business.
[13] Greenaway raised the issue with Dietzsch who undertook to further investigate the
matter and let him know what was going on. On 17 July 2013 Dietzsch reported he
had spoken to a number of people and was going to meet with Harvey at 1.00 pm that
day and wanted Greenaway to attend as he had concerns about Harvey's wellbeing as
he had appeared "quite emotional".
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[14] On his attendance at the meeting he had taken no notes nor did he plan to record the
meeting. Harvey in his presence (at the meeting) had not requested a support person
be available or informed him of his intention to record the meeting. Harvey from
Greenaway's own knowledge had been trained in workplace investigations
in July 2012 where it was made known that if there were serious concerns about the
conduct of an employee there was a need for that employee to have a support person
present.
[15] Greenaway understood the purpose of the meeting was to provide Harvey with some
internal feedback from Dietzsch's various discussions in the Plant and further would
Harvey be amenable to taking some personal leave "to put some distance between
himself and the plant" as it appeared he had some personal issues that were affecting
his work at the Plant. Subsequent to the meeting he became aware of Harvey having
broken down earlier in the day and having become "teary" in the office earlier that
day. Harvey at the meeting appeared quite subdued and at the conclusion of the
meeting Harvey agreed to take some personal leave. In an effort to protect Harvey's
integrity as Plant Manager he was to inform staff the leave was due to the unwellness
of his father.
[16] At the time of the meeting there were no formal allegations levelled against Harvey
in relation to the activities of the previous days and Greenaway had not considered
whether the Disciplinary Standard had any application even though he had raised
Murtagh's concerns (relating to Harvey on 15 and 16 July 2013) with Dietzsch. At
the meeting Harvey became quite concerned about his employment at which time
Greenaway sought to defuse his concerns. Harvey at the time mentioned his mother
and father's illnesses and an aunty who was dying, also being quite apologetic in
respect of possibly having offended staff on the previous two days.
[17] The meeting went for about 45 minutes and in the days subsequent to the meeting he
interviewed a number of people with regards to the allegations. A number of
individuals were interviewed after which he formed a "statement of allegations".
Contact was made with Harvey on the Tuesday afternoon where he was invited to
come and view the document and to answer some allegations gleaned from the
investigation. Harvey informed him there was no point in him coming in because he
was not going to answer any questions anyway and he had Greenaway email the
document to him.
[18] The document [Exhibit 3] dated 23 July 2013 emailed to Harvey contained the
following allegations which were to be investigated by Greenaway:
"1. Not displaying an appropriate image of professionalism at ALMC on;
a. Monday 15th July at a Engineering meeting in the Lytton Facility
meeting room at 1pm in the presence of Phil Murtagh, Stephen
Hunter, Ron Crimlis, Aaron Dighton, Graeme Brigg,
Peter Frangleton, Rick Burnett, Philip Harley you said;
i. that you don't care about the budget and that the budgeting
process in this company is 'fucked'.
ii. that there is no point saving with regards to the budget as the
company takes the money off you in the next year,
iii. that you had saved money in previous years, and other sites
didn't, they got a bonus and we didn't, and
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iv. that we are going to fix what I want to fix.
4. Engaging in conduct which may cause any reasonable person unwarranted
offence or embarrassment, acting in a aggressive manner towards others
and using offensive language on;
a. Tuesday 16th July at a meeting in the Plant Manager's office at
approximately 8.30am with Darran Walding you told Darran;
i. that he needed to step up and make 'those pricks' out there do
their jobs,
ii. that he needed to make a marked improvement on the state of
the filling hall and 'if you can't fucking do it then I'll find
someone who can', and
iii. that 'now I am back I don't give a shit who I upset or who takes
me across to Craig or Trevor. I don't give a fuck. I'm going
to get things done'.
b. Tuesday 16th July at a huddle meeting in the Plant Manager's office
at 9am in the presence of Phil Murtagh and Aaron Dighton you;
i. said that operators and lab staff were treating you 'like a
fuckwit' in relation to the operation of the plant pager system,
ii. said to Aaron Dighton 'Thanks for treating me like a fuckwit'
in relation to the operation of the plant pager system, and
iii. repeatedly used offensive language in an angry and aggressive
manner."
[19] Harvey was informed in the correspondence whilst the Appellant had made no
assumptions about the accuracy of the allegations he was being directed not to attend
work from 18 July 2013 pending an investigation into the allegations. Harvey was to
continue to receive his usual remuneration whilst away from work. In accordance
with the Disciplinary Standard he was invited to respond in writing to the allegations
by no later than 29 July 2013. If the allegations were founded the Appellant may take
disciplinary action against him that may include the termination of his employment.
[20] Greenaway first became aware the meeting of 17 July 2013 had been recorded by
Harvey when the Appellant decided to appeal the Q-COMP decision to overturn
WorkCover.
[21] Note: At this stage of the evidence-in-chief a recording of the meeting of 17 July 2013
covertly recorded by Harvey was played in the proceedings. At the conclusion of the
recording a number of matters were put into evidence by Greenaway.
[22] Greenaway's evidence was:
recording was consistent with his memory of what took place;
there did not appear to be any overt or obvious breaks in transcript; and
the content confirmed his verbal evidence given earlier in the proceedings.
[23] After Harvey had been provided with the allegations a response was received from
Lawyers acting on his behalf (dated 26 July 2013) requesting an extension of time for
a response to the allegations which the Appellant granted. A day or two following the
receipt of the letter from Harvey's lawyers a Workers' Compensation Medical
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Certificate was forwarded from Harvey in which Dr Bradley, a General Practitioner,
had stated:
"The workers stated cause of injury: Called into supervisor's office on the above
date and advised, with no prior warning he was suspended pending his response
to a series of allegations which he feels are unfounded". [dated 26 July 2013]
The certificate stated he was not capable for any type of work from 17 July 2013 until
16 August 2013.
[24] Greenaway gave evidence of Harvey severing his employment relationship with the
Appellant in November 2013 by way of a resignation.
[25] At the meeting on 17 July 2013 at no time did Harvey request that a lawyer be present.
The Disciplinary Standard policy had no application at that meeting and Greenaway,
at that time, had not determined if there was any breach of the Code of Conduct.
[26] In a question from the Bench with regards to the Disciplinary Standards being
enlivened at the meeting on 17 July 2013, Greenaway did not accept that there were
any specifics mentioned.
[27] Greenaway's evidence-in-chief concluded with reference to his recording interviews
with staff members only occurring if the matter of recording had been openly
discussed with the other party.
Cross-Examination
Second Respondent
[28] Under cross-examination, Greenaway acknowledged that prior to the meeting of
17 July 2013 he had discussed with Dietzsch the proposition of affording Harvey
personal leave however there was no discussion about standing him down if he refused
to take personal leave [Transcript p. 1-62]. On Harvey's role in the business since
becoming employed in 2006 he stated "I think it would be fair to say he's had a fairly
good run with - with some blips on the way probably like - like a number of
employees" [Transcript p. 1-62]. The Appellant had developed procedures and
systems under which they assessed performance in a particular role described by
Greenaway as a "calibration process" [Transcript p. 1-64]. Greenaway's role
encompassed the development of policies and procedures to ensure that psychiatric
and psychological injuries do not occur in the workplace as a result of management
action [Transcript p. 1-65]. On the matter of the use of language in the Plant area,
Greenaway recalled an incident in which he had some involvement where it was more
the aggressive nature of delivery rather than the language itself [Transcript p. 1-66].
That type of language it was accepted whilst unwelcomed in Head Office was not
such an issue in the Plant [Transcript p. 1-67].
[29] Harvey in his seven plus years with the Appellant, to Greenaway's knowledge, had no
disciplinary history [Transcript p. 1-67]. On the development of the Disciplinary
Standards he had not sought legal advice but accepted he was aware of his obligations
to ameliorate the risk of prejudice to a person or otherwise risk injuring them when
developing of the policy [Transcript p. 1-67]. All employees were reminded on an
annual basis of their obligations to understand the Appellant's standards and policies
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[Transcript p. 1-68]. Greenaway accepted the proposition that the effect of the
Disciplinary Standard in respect of counselling is a distinct process from other
activities such as coaching, performance reviews or performance management
[Transcript p. 1-70].
[30] For matters where an investigation is commenced or conducted into an alleged breach
in the Disciplinary Standard and the breach is of a serious nature an employee could
be directed not to attend the workplace [Transcript p. 1-71]. Dependent on the
circumstances another option may be to let the employee continue their role and
advised on what behaviour should cease [Transcript p. 1-72]. With regards to the
letter sent to Harvey on 23 July 2013 directing him not to attend work from
18 July 2013 in retrospect it was Greenaway's evidence the direction should have
applied from 23 July 2013 [Transcript p. 1-74]. Greenaway confirmed that at no time
was there ever a formal complaint made against Harvey although the company had an
option to investigate matters of health and safety without a formal complaint
[Transcript p. 1-75]. In Greenaway's time with the Appellant he could only recall two
occasions where pending determination of an investigation which related to issues
concerning the distribution of hard-core pornography around the workplace and two
operators involved in a non-physical altercation, that employees were stopped from
attending the workplace [Transcript p. 1-79].
[31] In terms of Harvey there were two allegations levelled against him in that he engaged
in conduct which may cause a reasonable person unwarranted offence or
embarrassment and that he had not displayed an appropriate image of professionalism
[Transcript p. 1-79]. On 18 July 2013 he had spoken to Murtagh, Aaron Dighton
(Dighton) and Darren Walding (Walding) who gave their accounts of Harvey's
behaviour. Statements were taken from each of them although they were never
required to sign the statements and they were never provided to Harvey [Transcript
p. 1-80]. With consent of the three employees he recorded their conversation and it
was his evidence that copies of the conversations were never disclosed to Harvey
[Transcript p. 1-84].
[32] Greenaway was critical of Harvey's criticisms of senior management in an open forum
with a number of people rather than his use of the expletive "fucked" when describing
a process in the company [Transcript p. 1-87]. Walding had indicated he had taken
offence by Harvey's comments which he felt were a threat to his position [Transcript
p. 1-87]. Harvey's conduct in general was not the appropriate leadership behaviour
espoused by the company [Transcript p. 1-88]. He had shown disrespect to
83 operators in the company through the comments attributed to him as well as "lab"
staff [Transcript p. 1-88]. The delivery of comments by Harvey that the operational
"lab" staff were treating him like a fuckwit had been, according to Dighton, made in
an aggressive way [Transcript p. 1-89]. Greenaway did not accept that when the
meeting was held with Harvey on 17 July 2013 that he was in possession of
information that could have justified Harvey's employment being terminated
[Transcript p. 1-90].
[33] In granting lawyers acting for Harvey an extension of time to respond to his
correspondence of 23 July 2013 Greenaway had done so on the proviso that neither
Harvey nor his representative contact the Appellant's employees. The intent of the
proviso was to protect the integrity of the investigation interview [Transcript p. 2-7].
Greenaway reiterated his view that the meeting of 17 July 2013 was a discussion and
not a disciplinary meeting [Transcript p. 2-10]. Greenaway had been of the view that
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at the 17 July 2013 meeting Harvey wanted to know if he had offended anybody and
it sounded like he wanted some feedback [Transcript p. 2-11]. Since Harvey's
departure a meritorious selection process had occurred with Murtagh now occupying
the position of Plant Manager [Transcript p. 2-14].
[34] As Plant Manager one of Harvey's key performance indicators related to workplace
health and safety with the workplace culture being for incident free operations. The
workplace due to the nature of the business has the potential for accidents and
environmental disasters to occur but according to Greenaway it was not a "major
hazardous facility" [Transcript p. 2-15].
First Respondent
[35] Greenaway accepted the specifics of Harvey's behaviour given to him on 16 July 2013
by Murtagh were no different to what formed the 23 July 2013 allegation with regards
to the engineering meeting [Transcript p. 2-27]. Greenaway accepted there were
allegations that arose from Murtagh's exchange with him prior to 17 July 2013 that
were serious enough for him to request Dietzsch make some informal investigations
[Transcript p. 2-29]. Dietzsch informed him prior to the 17 July 2013 meeting that he
had spoken to a few employees on the Plant [Transcript p. 2-29]. Greenaway recalled
providing Dietzsch with information on 16 July 2013 around comments attributed to
Harvey by Murtagh particularly around budgeting processes [Transcript p. 2-29].
[36] Prior to the meeting with Harvey on advice from Greenaway a conference call was
arranged with the CEO of the Appellant business where in the company of Dietzsch
a summary was given with regards to Dietzsch's conversations about Harvey's
behaviour and concerns about his performance in the workplace, providing a level of
specifics [Transcript p. 2-34]. The CEO was informed of two staff who had expressed
intentions of not sticking around if Harvey continued to behave in that manner. The
option of personal paid leave was also discussed as was the option for him to remain
in the workplace [Transcript p. 2-37]. At the meeting later that day the option of
staying in the workplace was not pursued [Transcript p. 2-38]. Greenaway conceded
that the position prior to the meeting of 17 July 2013 was in general terms what
Murtagh had told him about Harvey's behaviour and had been corroborated by
Dighton [Transcript p. 2-43]. The primary purpose of that meeting was to find out
where Harvey's "head was at and how he was feeling because that was the primary
purpose of the meeting. It was not to commence an informal investigation [Transcript
p. 2-43].
[37] On the option of Harvey taking personal leave following the 17 July 2013 meeting, it
was Greenaway's evidence had he not taken up that option he would have been
allowed to return to work until there was more specific allegations that could be put
to him [Transcript p. 2-45]. It was accepted that in the meeting Dietzsch had outlined
Harvey's behavioural issues and performance in the workplace which dealt with his
conduct as a Plant Manager [Transcript p. 2-45]. It was also accepted that in the
course of the meeting Dietzsch had said Harvey's conduct was damaging the business
[Transcript p. 2-46] and that at the end of the meeting it was outlined to Harvey that
an investigation into the allegations would be undertaken [Transcript p. 2-50].
Greenaway refused to accept the meeting was the start of the disciplinary process
[Transcript p. 2-50].
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[38] The start of the investigation into the allegations only started when Greenaway sat
down with someone and talked about specifics which could then be put to an
individual [Transcript p. 2-51]. Whilst there were no written specific allegations that
could have been given to Harvey at the meeting, Greenaway conceded he did have the
specific oral allegations from Murtagh [Transcript p. 2-52]. On hearing from Dietzsch
after his information gathering prior to the meeting, Greenaway formed the view there
was a problem with Harvey in the workplace that needed investigating [Transcript
p. 2-55].
[39] Greenaway gave evidence regarding the persons interviewed in respect of forming
allegation one against Harvey included Murtagh, Dighton, Ron Crimlis (Crimlis) and
Stephen Hunter (Hunter) [Transcript p. 2-55]. Greenaway had not interviewed
Graeme Brigg (Brigg), Rick Burnett (Burnett) or Philip Harley (Harley) because he
had not wanted to broaden the investigation any further and have to "basically drag"
Harvey through more with other individuals [Transcript p. 2-56]. Greenaway
accepted it would have been prudent to have interviewed all persons to be sure the
allegations could be drafted with a hundred per cent certainty [Transcript p. 2-57].
[40] In re-examination Greenaway gave evidence around the telephone call with the
company CEO on 17 July 2013 which lasted for 10 to 15 minutes and that the CEO
had not been provided with any documentation prior to the call. At the time of the
17 July 2013 meeting he had not formed the view that Harvey's conduct was
unacceptable but had wanted to speak to other individuals to determine whether
something formally needed to be put to him. The Disciplinary Standard did not
require the provision of statements to a person.
Dietzsch
[41] Dietzsch is the Operational Manager for the Appellant with all Facility Managers
reporting to him in that role with his job being to provide leadership on achieving
operational targets in an incident-free, safe environment with costs targets being third
in the priority list. The business has around 250 employees with 200 employees in
the operations area.
[42] In July 2013 Harvey was Facility Manager at the Lytton Plant with close to 100
operators on site making his role the most senior of all Facility Managers. Harvey's
remuneration was well above $130,000 per annum. Harvey's role including having
the following groups reporting directly to him:
engineering team;
engineering co-ordinators;
production managers; and
warehouse managers.
[43] Prior to July 2013 Harvey had been absent on long service leave during which time
Murtagh occupied his role. On his relations with Harvey they got on well and he
seemed to respond well to coaching provided by him. His performance review of
Harvey at the end of 2012 saw Harvey rated "4D out of 5E". In the period preceding
the taking of long service leave by Harvey in July 2013 according to Dietzsch, he was
not 100 per cent on the job and he had informed him of personal issues regarding his
wife and how they had impacted on their relationship.
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[44] On his return Harvey was involved in a handover meeting with Murtagh and was
introduced to the Total Production Maintenance (TPM) team where it was agreed
Murtagh would continue to run the TPM teams while Harvey "got his feet under the
desk". At the time Harvey appeared to be very energised, fit, healthy and motivated
to return to work. Sometime around 17 July 2013 he was approached by an employee
who advised of an altercation with Harvey telling him "If he stays I'm going to have
to leave".
[45] Dietzsch, in the lead up to the meeting of 17 July 2013, had discussions with others
including Dighton who indicated concerns over Harvey's behaviour with some reports
having Harvey breaking down in the office and crying. He initiated a discussion with
Greenaway about having a "chat" with Harvey to find out what was going on as he
was concerned the Appellant would end up with a bullying or stress claim. He
mentioned to Greenaway they may need to give Harvey some "personal time off". He
also decided to give the CEO John Warnock (Warnock) a "heads up" about what was
happening in the Plant. In the phone conversation with Warnock, which lasted about
five minutes, he indicated his support for the approach they were taking.
[46] Prior to the meeting he has a one-on-one discussion with Harvey where he informed
Harvey of concerns he held regarding reported interaction with his team and of the
need to have a discussion involving Greenaway. Harvey was not told to bring a
support person to the meeting as the meeting was not to be a performance discussion.
At the time Harvey had "teared up" when describing the situation with his father's
health.
[47] At the meeting itself neither he nor Greenaway recorded the conversation as a value
of the company was to have open and honest communications with staff and to record
a conversation without another person's knowledge would be against those values. At
around the time this matter was the subject of a conciliation conference the Appellant
became aware for the first time that the meeting of 17 July 2013 had been recorded
by Harvey which at the time did not sit well with Dietzsch and in hindsight he was
disappointed because it was not fair and honest behaviour.
[48] On a medical certificate [Exhibit 11] provided by Harvey the content was disputed by
Dietzsch with regards to him being suspended without any prior warning at the
17 July 2013 meeting and of a series of allegations having been put to him at the
meeting. The meeting was not a disciplinary discussion but an open and honest
discussion with a senior manager who had significantly upset his team.
[49] Note: At this stage of the evidence-in-chief a recording of the meeting of 17 July 2013
covertly recorded by Harvey was again played in the course of the proceedings.
[50] Dietzsch disputed the content of a medical certificate provided by Harvey which
suggested the cause of a stress condition related to the "threat of dismissal" emanating
from the 17 July 2013 meeting. Again it was emphasised the purpose of the meeting
was not about performance and for a period of time prior Dietzsch had been involved
in coaching Harvey about leadership matters which was a process distinct from a
disciplinary process.
[51] Dietzsch was taken to a number of passages in the recorded meeting of 17 July 2013
giving evidence that Harvey:
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seemed very calm;
was not agitated;
was not upset by the discussion; and
on five or six times offered an apology.
[52] However in looking back knowing Harvey had recorded the meeting, Dietzsch did not
believe what Harvey said in the meeting was an honest account. None of his
comments around the issues of awareness of staff as a result of his behaviour made
sense at the time although in hindsight with the meeting having been recorded, now
made sense to him.
[53] About a quarter of the way through that meeting he offered Harvey the opportunity to
take some "personal paid leave" for compassionate reasons which would have
benefited him and the employees who had been upset. The recording has Harvey
agreeing to the personal leave option on the basis he tells people he is on personal
leave.
[54] The letter sent to Harvey on 23 July 2013 which set out allegations against Harvey
had been a decision of Greenaway's following his investigation and was supported by
Dietzsch. On the absence of reference to particular employees (said to have been
upset by Harvey) on the 17 July 2013 recording it was Dietzsch's evidence names
were not mentioned because it "wasn't a performance discussion"
Cross-Examination
Second Respondent
[55] Under cross-examination Dietzsch gave evidence of his knowledge of workplace
health and safety and of his obligations under legislation applicable to those functions
[Transcript p. 3-19]. He did not accept the business operated in a dangerous industry,
had excellent controls in place in the event of a spill [Transcript p. 3-20]. Costs were
never an issue with regards to workplace health and safety practices [Transcript
p. 3-23]. Dietzsch accepted that since he commenced employment a number of staff
members had departed the business including medium to long-term employees in the
management structure [Transcript pp. 3-25 to 3-27].
[56] The nature of the Lytton Plant was heavily blue collar with robust language used on a
daily basis [Transcript p. 3-28] with the culture in the head office more respectful
[Transcript p. 3-29], In 2013 it was conceded that the business was over budget in
certain operational areas [Transcript p. 3-31]. Dietzsch denied at the time of Harvey's
return from long service leave there were some serious safety issues emerging at the
wharf with employees being required to work in unsafe conditions and that an amount
of $100,000 was needed for repairs which he was not keen to spend [Transcript
p. 3-34]. At no point had Harvey put a proposal to him about that issue or the issue
about valves or other matters on the wharf [Transcript p. 3-35].
[57] Whilst Harvey was on long service leave there was a serious oil spill (8,000 litres)
that required a formal investigation. The cause of the problem was that on the
installation of a new control system the previous wiring had not been taken out and
disconnected [Transcript p. 3-41]. On whether the Lytton Plant Manager's role was
particularly stressful, Dietzsch stated:
-- 12 of 53 --
13
"I think Martin [Harvey] had done the job for years and didn't strike me to be a
person that was getting stressed about the day to day issues all the time and he
certainly had plenty of help." [Transcript p. 3-45]
[58] In the four months prior to Harvey going on long service leave he had witnessed
Harvey cry in his presence, confiding of concerns about his wife's health issues that
were affecting his relationship with her [Transcript p. 3-47]. Harvey in a performance
review undertaken by Dietzsch in March 2012 was rated "4D" for the period January
to December 2012 and he was really happy with Harvey's performance at that time
[Transcript p. 3-49].
[59] Coaching activities which involved Harvey on occasions related to his interaction with
subordinate employees however he had a lot of empathy for Harvey based on his
personal circumstances and he was shown a lot of compassion [Transcript p. 3-52].
[60] Dietzsch acknowledged that Harvey had previously informed him that his wife had
breast cancer that required an operation and he had passed that information on to his
legal representatives [Transcript p. 3-102]. He denied having sourced this information
through his own enquiries [Transcript p. 3-103].
[61] In relation to the first allegation levelled against Harvey in the correspondence of
23 July 2013 it was Dietzsch's evidence he spoke to Murtagh and Dighton on
15 July 2013 making him fully aware that Harvey had not been displaying an
appropriate image of professionalism, well in advance of the 17 July 2013 meeting
[Transcript p. 3-106]. On 15 July 2013 he also spoke to Walding and Crimlis and was
given an account which went to the second allegation [Transcript p. 3-107]. Prior to
his attendance at the meeting of 17 July 2013 he gave evidence of having an "open
mind" with regards to what was going on [Transcript p. 3-109]. There was no
presumption of guilt regarding the allegations [Transcript p. 3-110]. Of the
allegations it was the case Dietzsch had never dealt with Harvey about them as he had
"lawyered up, went and had a stress claim before we could have discussions"
[Transcript p. 3-112].
[62] Prior to 17 July 2013 he held no concerns that Harvey was not honest or open however
in seeing the WorkCover certificate he believes that Harvey had made "fraudulent
accusations" [Transcript p. 3-113]. He was disappointed to hear from other employees
about Harvey's behaviour which left people "trembling and upset" [Transcript
p. 3-113]. He was not concerned Harvey had disagreed with him on work matters but
it should have been done in the right way [Transcript p. 3-113].
[63] On the morning of 17 July 2013 he met with Harvey and spoke to him about damaging
relationships with his team but never spoke about him causing damage to the business
[Transcript p. 3-115]. He requested Harvey attend Greenaway's office at 1.00 pm
which was agreed. In the discussion involving Warnock, Greenaway and himself
before the meeting, Dietzsch accepted an option discussed was that Harvey would be
stood down at the meeting and was a likely option but not a fait accompli [Transcript
p. 3-116]. At the meeting of 17 July 2013 he accepted that cost performance issues
were discussed but health and safety were not really discussed [Transcript p. 3-118].
Dietzsch denied his attitude hardened up about a third of the way through the interview
and said he remained compassionate [Transcript p. 3-120]. A range of questions were
put to Dietzsch regarding the 17 July 2013 meeting which included references to:
-- 13 of 53 --
14
Harvey's father being unwell;
upsetting people and putting them offside;
discussion about other roles;
personal leave;
tough conversations in the future;
safety issues not progressed in his absence; and
agreement to concoct a story to cover Harvey's absence [Transcript
pp. 3-122 to 3-128].
[64] Dietzsch accepted he had told Harvey at the meeting on 17 July 2013 to give him a
call if the whole process was "doing his head in" but had done so on the basis of
Harvey being upset prior to the meeting [Transcript p. 3-131].
First Respondent
[65] Under cross-examination, Dietzsch's evidence was that at 17 July 2013 Harvey had
not been upfront with his mental health issues [Transcript p. 4-15]. He had difficulty
recalling his interaction with Greenaway about the correspondence sent to Harvey on
23 July 2013 but conceded he had given a verbal "okay" for the letter to go out
[Transcript p. 4-16]. The formal disciplinary action had commenced with the
23 July 2013 correspondence and the direction not to attend work. The matter became
formal once Greenaway had conducted the investigation and he held the opinion that
Harvey was fully aware of the process from his previous exposures as Plant Manager
[Transcript p. 4-22]. The discussion on 17 July 2013 was an informal process
[Transcript p. 4-24].
[66] Dietzsch first became aware of issues regarding Harvey when Murtagh had passed on
comments made by Harvey at an engineering meeting about budget and not "giving a
fuck" [Transcript p. 4-26]. Other persons had come to him unsolicited giving him
feedback on Harvey's performance and how it was affecting them [Transcript p. 4-27].
At the time he was acutely aware there was some "personal stuff" going on but
Dietzsch was also focussed on erratic behaviour which had the potential to create a
problem in the workplace [Transcript p. 4-29].
[67] Dietzsch had a conversation with Crimlis regarding Harvey's behaviour which had
left Crimlis feeling bullied and worried about his job being threatened [Transcript
p. 4-33]. At the time of the discussion Crimlis was shaking, trembling and had tears
in his eyes [Transcript p. 4-34]. On Monday 15 July 2013 the only conversation he
had regarding Harvey's behaviour was with Murtagh and Crimlis however he had
further discussions on the following day with Dighton and Natasha Geddes (Geddes)
[Transcript pp. 4-36 to 4-37]. In his exchange with Dighton words had been said by
Dighton to the effect "What's going on with Mr Harvey" [Transcript p. 4-43] but
Dietzsch was unable to articulate some recollection of the inappropriate behaviour
mentioned by Dighton [Transcript p. 4-44].
[68] After a series of conversations he formed the opinion that things were not right and at
some stage conveyed some specific information to Greenaway about what he had
heard which ultimately formed part of the allegations that were levelled against
Harvey [Transcript p. 4-50]. There was a discussion with Harvey and himself on the
morning of 17 July 2013 which he had sought because of the reports about him crying
in front of his team and to organise the meeting later in the day [Transcript p. 4-52].
Dietzsch also had concerns about "potential performance stuff" [Transcript p. 4-54].
-- 14 of 53 --
15
[69] Dietzsch conceded he went into the meeting of 17 July 2013 with a preference for
Harvey to take personal leave to "create a little bit of separation and let the dust settle
for - for Martin and the team" [Transcript p. 4-55]. Harvey appeared not to be upset
throughout the meeting which Dietzsch found perplexing [Transcript p. 4-55]. The
discussion was not normal in that the previous interaction was gone, it was a cold
discussion and we had a leader coming back into the organisation unaware he was
upsetting people [Transcript p. 4-59]. Dietzsch did not accept he had been critical of
Harvey at the meeting and thought the meeting went smoothly and politely [Transcript
p. 4-59].
[70] Dietzsch accepted he had gone into the meeting of 17 July 2013 with a number of
quite serious allegations and that no specifics were provided to Harvey except that an
employee had stated they would resign if the behaviour continues. Greenaway
indicated after his investigation Harvey would be given some specifics [Transcript
p. 4-62]. Dietzsch had no expectations about the outcome of the meeting just the
belief that Harvey would have an honest conversation with them. At the time he did
not think that Harvey was being dishonest [Transcript p. 4-63]. He agreed he had
formed the view prior to the meeting there was a degree of truth around the issues
raised by Harvey's co-workers [Transcript p. 4-64] but at the same time had an
"absolute open mind" there may have some inaccuracies. He was also cognisant of
the natural justice section in the Disciplinary Standard for consideration of mitigating
circumstances [Transcript p. 4-65].
[71] Dietzsch was aware under the Disciplinary Standard there was a counselling process
with had six steps to follow and was familiar with that process. In the course of the
meeting he accepted he had outlined a potential problem without going into specifics
[Transcript p. 4-68]. Dietzsch refused to accept the first two steps of the Disciplinary
Standards were followed [Transcript p. 4-69]. There were not two applications of the
disciplinary procedures with one for senior management and another for other
employees [Transcript p. 4-71]. Dietzsch indicated there was often an informal
meeting before starting the official disciplinary process in which a support person
would be offered [Transcript p. 4-71]. The meeting of 17 July 2013 was in his opinion
not a disciplinary meeting and did not warrant a support person being offered to
Harvey [Transcript p. 4-72]. Dietzsch considered the correspondence on 23 July 2013
was effectively the commencement of the show cause process.
[72] In re-examination Dietzsch confirmed that Harvey had the delegated authority to
spend up to $50,000 for various work-related activities and the safety issue on the
wharf was actually remedied for around that amount.
Dr Milad
[73] Dr Milad, a Psychiatrist with United Kingdom qualifications, had worked in Australia
since 2003 and conducted a Specialist Medical Examination of Harvey on
2 December 2013 at the behest of WorkCover. The Report prepared by Dr Milad was
tendered in the proceedings [Exhibit 6]. Dr Milad confirmed the content of the Report
and indicated he had recently been contacted by the Regulator and provided with extra
information relating to medical episodes involving Harvey in 2007 and 2009. The
original past history only dealt with a matter some 20 years previous. The original
history had been provided by Harvey at the time of the examination.
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16
[74] In terms of the 2009 episode, it was Dr Milad's understanding from the information
that Harvey had presented to hospital in a very distressed state, citing stressors in his
life at the time and maybe having been excessively drinking. Symptoms included:
acute stress reaction;
depressive symptoms;
anxiety symptoms; and
stress symptoms.
[75] A further Report from Dr Milad [Exhibit 7] was tendered in the proceedings. This
Report had been authored following receipt of further information including General
Practitioner notes and material from Logan Hospital. Information provided to
Dr Milad regarding his Second Report was in the form of an Adult Mental Health
Services - Consumer Assessment [Exhibit 8] issued by the Logan facility on
20 June 2009. Having read the history provided in the General Practitioners notes he
found evidence of a 2007 consultation where Harvey presented for a stress reaction
and anxiety but could find nothing to indicate he had received any psychiatric
assistance.
[76] On the content of his Second Report where Dr Milad opined that the 2013 condition
presented by Harvey could be a relapse of a pre-exiting injury, he made the following
comments:
"…sometimes the word relapse maybe meant for those people who just recover
but don't stay well and relapse again, or if - it's a new episode, some people
might not call that a relapse, just call that a new episode." [Transcript p. 3-92]
[77] In the First Report [Exhibit 6] in terms of DSM-IV-TR multi-axial classification the
diagnosis was at:
"Axis I was unclear whether he suffered from a Major Depressive Disorder
and Generalised Anxiety Disorder or an Adjustment Disorder with
anxious mood and depressive symptoms but most probably suffered
a Major Depressive Disorder of moderate severity and Generalised
Anxiety Disorder, moderate severity, after an initial acute stress
disorder developed after 17 July 2013 due to management actions.
Axis II Personality Disorders -
Pre-morbid personality of Obsessive compulsive.
Axis III General Medical Conditions -
No medical illness causing his current stress.
Axis IV Psychosocial and Environmental Problems -
Loss of his job;
Work related stressors.
Axis V Global Assessment of Functioning (GAF) Scale -
GAF = 41-50."
[78] The Report noted that further information would be needed to rule out any tendency
to develop mood disorder.
-- 16 of 53 --
17
[79] In the Second Report Dr Milad noted that the additional information provided gave
no indication of Harvey being unwell or having received treatment in the early half of
2013 which indicated that the symptoms became prominent and worse after July 2013,
precipitated by his reaction to the perceived stress from the suspension and
investigation.
[80] The condition he presented with in 2013 was of a similar nature (to a previous
condition) and would be considered as an aggravation of pre-existing condition or
relapse of pre-existing condition.
Cross-Examination
Second Respondent
[81] Under cross-examination Dr Milad considered the 2013 injury as a new injury because
of the effluxion of time, with the difference between the 2007 - 2009 conditions and
the 2013 condition being that the latter lasted longer [Transcript p. 3-93]. There was
a high probability that Harvey had an existing predisposition to have a psychiatric
disorder under situations [Transcript p. 3-94]. The "new" injury was precipitated or
triggered by the incident which resulted in Harvey experiencing a lot of symptoms
[Transcript p. 3-95]. From the history provided it was Dr Milad's diagnosis that
Harvey "developed a psychiatric disorder after the sequence of events that happened
in July 2013" [Transcript p. 3-96].
Dr Bradley
[82] Dr Bradley, a General Practitioner, commenced treating Harvey on 2 July 2007. In
the proceedings the following documents pertaining to Harvey were tendered:
a workers' compensation medical certificate issued on 26 July 2013 which
contained the following diagnosis:
"Acute stress as a result of workplace issue and threat of dismissal";
and
patient notes relating to treatments provided to Harvey from
22 January 2013 to 5 August 2013 (inclusive).
[83] Dr Bradley, at the consultation with Harvey on 26 July 2013, had not initially issued
a workers' compensation medical certificate and later received a message from Harvey
that he had obtained legal advice and wanted to make a claim under WorkCover.
Cross-Examination
Second Respondent
[84] Under cross-examination Dr Bradley gave evidence that in the consultation with
Harvey on 26 July 2013 the possibility of it being a WorkCover issue came up in the
course of the conversation [Transcript p. 4-10]. On Harvey's presentation he observed
he was "devastated" [Transcript p. 4-10]. Dr Bradley provided a referral for Harvey
to see Brian Drury a Psychologist [Transcript p. 4-13].
-- 17 of 53 --
18
Second Respondent
Harvey
[85] Harvey was currently unemployed with his last employment being with the Appellant
business and which ceased on 8 November 2013. He was at the time of hearing in
receipt of workers' compensation benefits.
[86] As the Plant Manager at the Lytton facility he had approximately 120 personnel and
contractors that reported directly to him. His performance to his knowledge was of a
very high standard with his 2012 performance review attracting a "4D" rating which
was above average and had him meeting all of the objectives and consistently
surpassing expectations. He was an enthusiastic team member who demonstrated
well-developed leadership qualities in all areas. In March 2013 he received a before
tax bonus payment of $10,746.
[87] At 17 July 2013 (and immediately prior) his supervisor was Dietzsch who was located
in a separate National Office situated some 300 metres from the Lytton Plant. Harvey
gave evidence that since the arrival of Dietzsch at the business there were a number
of senior management that had departed the business including some who exited after
Harvey tendered his resignation in November 2013.
[88] Harvey's understanding of Dietzsch's role was that he had an overarching
responsibility (as all managers had) to ensure safety was the focus but he also had a
very high focus of financial cost control. Dietzsch spent most of his time interstate
but there were times when he was at the Lytton Plant as well as his office located close
by. The business measured cost performance on the basis of cents per litre with
Dietzsch's role to measure the costs with a view to reduce anything that impacts on
operational costs. Notwithstanding his obligation to safety, in his view, there was a
higher focus on the financial cost control.
[89] Harvey was in an operational role where his number one focus was on safety which
was regularly reinforced by the Board and senior management. Training was provided
about safety and how to maintain safety to ensure all operational managers took the
necessary steps to maintain a safe workplace. The Lytton Plant as a major
manufacturing Plant stored millions of litres of base oil in hundreds of tanks with
millions of litres of combustible products stored in multiple warehouses, so there was
always the risk of an environmental disaster, fire, explosion and risks associated with
truck and forklift traffic at the Plant.
[90] On 15 March 2013 Harvey was to commence three months of long service leave and
in the week prior he sought to contact Dietzsch about the period of leave which he
wanted to extend by a further four weeks from his previous request and he wanted to
be sure from a business perspective it was okay for him to be away for the full period.
Contact was made with Dietzsch on his last day of work who initially did not approve
the extension but did so some days later via an email. Dietzsch's first response had
been to say "fuck" which did not offend Harvey as swearing was a part of the business
culture.
[91] With regards to his personal circumstances, Harvey gave evidence that in May 2012
his wife had undergone a minor operation for the removal of a benign lump from her
breast and at no time was she diagnosed with cancer or had any chemotherapy or
-- 18 of 53 --
19
radiotherapy. In June 2012 his wife developed a post-operative infection which was
treated with antibiotics (unsuccessfully) thus she was required to undergo a further
operation. In January 2013 after being cleared of the infection his wife underwent
reconstructive surgery for the breast. He was not overly concerned about her
condition during the period of his long service leave.
[92] In terms of his parents they were aged 90 and 85, resided in a retirement village in
Ballina and he worries about them as any child does about a parent which he considers
not to be unusual.
[93] Harvey returned to work (from long service leave) on 8 July 2013 having emailed
Dietzsch a week prior to his return with a suggestion that he come into work and get
a "heads up" about Dietzsch's goals and primary objectives. On 11 July 2013 he came
down with a head cold and went home on sick leave returning to work on Monday
15 July 2013. On his return he became concerned that a major safety upgrade to the
wharf facility had not progressed at all despite an approach to Dietzsch and the
financial controller prior to going on long service leave to have this work undertaken.
Additionally he had left instructions with Murtagh as acting Plant Manager that this
work was a high priority and the failure to undertaken the work conflicted with
information provided earlier by Dietzsch.
[94] A document shown to him at the earlier meeting had identified an extremely high risk
to the business relating to a valve head and access by valve head operators on the
wharf when exposed to the weather, oil and petrol products on the deck. There was
extreme risk associated with the work which had been performed that way since 2006.
Photographs of valves on the wharf were tendered [Exhibit 14] to which Harvey
testified had been that way since he commenced his employment with the
responsibility of this equipment falling under his control. Harvey had spent six to
seven years seeking to have the problem remediated putting a final proposal to head
office prior to Dietzsch's commencement with the business. The difficulty in
progressing the project was that the wharf itself was owned by Caltex and as it
received ships on a 24 hour, 365 days of the year basis, to have any work effected
there needs to be approval from Caltex. Over time Harvey had engaged three
engineers who had an involvement in the project but had all left prior to any work on
the project commencing.
[95] On his return to work he was provided with a report regarding an 8,000 litre oil spill
that had occurred in his absence from which Harvey gleaned that the root cause of the
incident had been cost-cutting. Also on his return to work he discovered there were
over 180 outstanding work requests to remediate problems at the Plant that had not
been actioned. In his view in his absence the actual housekeeping of the facility had
deteriorated which prompted him to have some discussions with people about those
problems as well as discussions with his "direct reports".
[96] On 17 July 2013 at around 11.20 am whilst attending a meeting in the facility meeting
room Dietzsch entered the room and requested him to immediately withdraw from the
meeting. They then went to his office where Dietzsch advised him that he had "upset
a number of people" and "damaged the business" which perturbed Harvey greatly. He
then mentioned that somebody wanted to leave if it's going to be like this around here
and asked if there were any sort of external issues playing on his mind. He advised
Dietzsch that he was obviously concerned about his parents who were aging and he
was told to attend a meeting in Greenaway's office at 1.00 pm on that day. In the next
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20
hour and a-half whilst waiting for the meeting he became extremely anxious, felt
stressed and wondered what on earth he had done to create this.
[97] He attended the meeting at 1.00 pm turning on his phone prior to entering the meeting
for the purposes of recording the meeting with a view to having a better understanding
as to what was to be advised to him. Dietzsch provided him with some feedback he
had received which indicated Harvey had upset a number of people which was the
first time he had received any real feedback. Dietzsch indicated that he wanted to
stand him down and he was required to absent himself because he had upset a number
of people and damaged the business. The allegation regarding damaging the business
was repeated a couple of times. There was no clarification provided as to what he had
said to upset people and no details how he had damaged the business.
[98] From his own experiences he was aware that only in extreme situations or very
significant situations would the Appellant business stand a person down and it was
unusual in the case of senior management. At the time he asked for clarification
because without that he would be unable to respond to the allegations. In fact in the
meeting he had been advised there was no formal allegation leaving him with no real
understanding as to why he had been stood down. Having previously been asked by
Dietzsch whether or not he wanted to remain in his role he believed that he was no
longer wanted in his role.
[99] Harvey then asked for the people whom he had supposedly upset to be identified. He
had not been afforded the opportunity to have a support person with him but would
have done so if given the chance. At the conclusion of the meeting he was told to
stand down and to advise his Plant and direct reports that he was going to be taking a
leave of absence and Murtagh would again be the Acting Manager.
[100] Harvey did not accept that he agreed to take personal leave nor was he given the option
to take personal leave, it was more a fait accompli than an option. He was not given
a chance to reply to any of the allegations. On his return to the Plant he advised his
direct reports what Dietzsch had advised him to say which was "he was taking leave
and that Phil [Murtagh] was to be the acting Plant Manager in my absence".
[101] Over the next couple of days he gave consideration to the Disciplinary Standards that
were in place at the business which caused a great deal of anxiety as the referenced
disciplinary procedures had not been applied to him and the key component of the
process being that of natural justice had also not been applied. He reached the
conclusion that senior management must have thought the allegations were extremely
bad as they had seen fit to discharge him from the workplace without following the
procedure.
[102] He recalled occasions in the past where people had been stood down pending a formal
investigation which included:
where a contractor seriously assaulted an operator; and
extreme pornography had been circulated by one of the senior blenders
which had been inadvertently emailed to a female customer.
Harvey could see no comparison between what had happened to those employees
and himself in that the business had applied the disciplinary process to the other
employees.
-- 20 of 53 --
21
[103] At this stage he became quite distressed and sought the services of a Psychologist as
well as unsuccessfully seeking treatment from a General Practitioner after having
approached three medical clinics on the Sunshine Coast. He ultimately saw a General
Practitioner on 26 July 2013 who diagnosed he was suffering acute stress as a
consequence of his work environment.
[104] On 23 July 2013 he received a phone call from Greenaway who advised they had
conducted an investigation and a number of allegations had been made requiring some
discussion between the two of them. Harvey requested the allegations be forwarded
to him in writing and he subsequently received them the same day. The
correspondence indicated the potential for him to lose his employment.
[105] He was left feeling absolutely devastated and since being diagnosed on 26 July 2013
he had been prescribed a number of different medications and dosages.
[106] Note: At this stage of the evidence-in-chief the recording of the meeting of
17 July 2013 covertly recorded by Harvey was played in the proceedings.
[107] Harvey under cross-examination described the process he relied upon to record the
meeting of 17 July 2013. He regarded the company supplied the phone as a workplace
tool and that "on other occasions it's - it's a common practice to alert people that - that
a meeting whatever is taking place is going to be recorded" [Transcript p. 5-7]. The
decision to record the conversation was taken just before he entered the office and to
date he had never personally informed the Appellant of having recorded the meeting
[Transcript p. 5-9]. Harvey denied that he had deliberately withheld the fact he had
recorded the conversation [Transcript p. 5-9]. The failure to disclose the recording
according to Harvey was because it was "the last thing on my [his] mind" [Transcript
p. 5-11].
[108] Harvey accepted that he had, as a senior Manager, been involved in numerous
potential disciplinary matters and that the Appellant had a relationship of trust and
confidence between its employees but rejected his decision to record the meeting was
pre-mediated or that he deliberately withheld his actions from the other participants
in the meeting [Transcript p. 5-16]. He was aware the meeting of 17 July 2013 was
significant as Dietzsch had told him at the earlier meeting he had seriously damaged
the business [Transcript p. 5-17]. Harvey on the proposition of the recording
identifying him commending Dietzsch and Greenaway on their conducted stated:
"I can recall from the transcript making those comments, and that was towards
the very end of the conversation, and at the time I would have said that whilst
being sincere, I was dumbstruck by the information that I had been provided,
and I was trying to maintain some semblance of composure." [Transcript
p. 5-18].
[109] Harvey had first played the recording on the evening of 17 July 2013 [Transcript
p. 5-20]. He denied in the course of the meeting he was "fishing" for some detail or
attempting to have Dietzsch make some adverse comments [Transcript p. 5-21]. The
recording which had been transcribed by his wife was not disclosed to WorkCover
when he made his claim because he "didn't see it as being necessary that I provide that
information" [Transcript p. 5-24]. The transcription of the recording was undertaken
after the Regulator had set aside the decision of WorkCover and at a time after he
became aware there was to be an appeal to the Commission [Transcript p. 5-25].
-- 21 of 53 --
22
[110] Harvey as a member of senior management had previously taken part in disciplinary
proceedings, having on occasion initiated such processes as well as having counselled
employees, conceding he had not requested the presence of a support person because
the decision for him not to have support had been made by Dietzsch [Transcript
p. 5-31]. Claiming to have "lost track" with the question, Harvey on the issue of a
support person stated "Well, I never expected that I would need to have a support
person and that was based on the original first meeting" accepted that "in essence, it
was my decision not to because I was led to believe through Mr Diche's (sic)
comments that it was going to be a discussion." [Transcript p. 5-32]. Harvey conceded
that in the meeting of 17 July 2013 he was not requested to address an allegation
concerning any employee and there was no employee explicitly named at the meeting
[Transcript p. 5-32].
[111] Harvey gave evidence of having resigned his position in November 2013 but refused
to answer a question that he had not been terminated for misconduct. He claimed to
have been stood down and did not accept he had agreed to stand down [Transcript
p. 5-34]. Harvey was taken to line 274 of the transcript [Identification 2] of the
recording of the 17 July 2013 meeting and asked if it was a genuine comment made
by him to which he replied "At the time - I - I believed…Yeah Okay. Well, yes". The
comment referred to was:
"You know, you guys, like I said, you got to do your thing, which is the right
thing, and I do commend you for it, the way you've managed it. I'm deeply,
deeply upset that I've created the situation, ah, that we're, ah - well, I'm not - you
guys, I apologise, you know, for distracting you from my business." [Transcript
p. 5-36]
[112] Harvey acknowledged it was eight or nine days after the meeting of 17 July 2013 that
he presented to Dr Bradley's clinic - nor did he seek to contact him despite Dr Bradley
knowing his forensic mental health history [Transcript p. 5-38]. He had
unsuccessfully sought to obtain medical assistance on the Sunshine Coast in the period
immediately following the 17 July 2013 meeting [Transcript p. 5-38]. Upon returning
from the Sunshine Coast he contacted Dr Bradley's office and secured an appointment
five days later [Transcript p. 5-39]. Harvey accepted that the medical certificate
issued on 26 July 2013 contained the wording that he was "threatened with dismissal"
which had come from him [Transcript p. 5-40]. Harvey reported to Dr Bradley he
was experiencing distress arising from an event on 17 July 2013 [Transcript p. 5-41].
Harvey did not provided Dr Bradley or Dr Milad (at the time of the consultation) with
access to the recording or transcript [Transcript p. 5-42].
[113] On the consultation with Dr Milad he understood it was for the purposes of an
assessment as to whether or not he had suffered a psychological injury and a report
would be provided that may have been of importance regarding his workers'
compensation claim [Transcript p. 5-43]. Harvey whilst accepting he had been
managing a mental health condition for a considerable period of time, denied it was
as early as 2007 or 2009 [Transcript p. 5-51]. He recalled that in 2009 he had informed
Dr Bradley he was distressed by the health of his parents and further acknowledged
he had a mental condition that could be traced back to 2007 [Transcript p. 5-52].
Harvey accepted in 2009 he reported to Queensland Health with a mental health
condition and he had taken anti-mental health medication prior to 2013 [Transcript
p. 5-52]. The event in 2009 was described as "very short-lived" and there had not
been anything from a mental health perspective until the events of 17 July 2013
-- 22 of 53 --
23
[Transcript p. 5-53. Harvey accepted that in 2009 a diagnosis had been made in the
following terms:
adjustment disorder with depressed mood;
acute stress reaction;
acute grief reaction; and
alcoholic hallucinasis [Transcript p. 5-54].
Harvey had not informed Dr Milad of the 2009 condition but had answered the
questions put by Dr Milad to the best of his ability and at the time he was very
distressed and on medication [Transcript p. 5-54].
[114] On his return to work on 15 July 2013 it was Harvey's evidence that he had concerns
that safety issues supposed to have progressed over his long service leave had not
progressed and other safety issues had developed in his absence [Transcript p. 5-68].
In his evidence-in-chief where he had commented on some of the work scheduled by
Murtagh in his absence using words that included "fantastic" and "excellent" it was
Harvey's evidence his reference was to project work and minor areas of the Plant
[Transcript p. 5-68].
[115] Harvey denied at an engineering meeting on 15 July 2013 that he had "lost your [his]
cool". He denied on 17 July 2013 disclosing that his wife had suffered serious illness
and he was personally distressed and affected by it [Transcript p. 5-71]. Harvey had
some previous experience at the Plant with persons who had made claims for workers'
compensation for a psychiatric or psychological condition acknowledging an
understanding of what reasonable management action was and how a claim for
compensation could be made [Transcript p. 5-73]. Harvey understood that if an injury
was caused entirely or partly by personal matters it either negates or reduces the claim
[Transcript p. 5-74].
[116] In hindsight a support person may have been needed for emotional support but that
was not the case at the time [Transcript p. 5-77]. Harvey received the letter from the
Appellant (dated 23 July 2013) whilst at his Brisbane residence and in the company
of his wife [Transcript p. 5-78]. He did not accept it was impact of the allegations in
the letter and not the meeting of 17 July 2013 that caused his distress, stating:
"No. Sorry, you're wrong. The meeting of the 17th was the meeting that put
my head into a tailspin and the letter of allegations as - as detailed exacerbated
the situation." [Transcript p. 5-79]
At some time the next day he read the Disciplinary Standard [Transcript p. 5-79]
although he already had an understanding of the Standard [Transcript p. 5-80].
Harvey repeated his early evidence that the onset of his condition arose from the
meeting of 17 July 2013 and was exacerbated by the correspondence of 23 July 2013
[Transcript p. 5-80].
[117] On viewing the correspondence of 23 July 2013 [Exhibit 3] Harvey indicated that:
it did not state he had been terminated;
he understood the requirement to warn of the possibility of termination in
progressing an disciplinary matter;
he was familiar with the process; and
-- 23 of 53 --
24
he was able to provide detailed response submissions to the Appellant
through his lawyers [Transcript p. 5-82].
[118] Harvey did not accept that the correspondence gave him sufficient detail about the
allegations and it was a "rather shoddy document" [Transcript p. 5-82]. The response
identified that the allegations had been completely taken out of context and conjured
up [Transcript p. 5-83]. He acknowledged the use of a profanity as alleged [Transcript
p. 5-83]. At the meeting he had emphasised that Murtagh who was running the
meeting was trying to reduce the "R and M" spending when in actual fact there existed
195 outstanding work requests. There were a number of areas requiring attention and
the rest of the filling hall was an absolute disgrace [Transcript p. 5-84].
[119] In re-examination Harvey gave evidence at no time was he ever provided with
statements from the various people said to have witnessed the allegations nor was his
request for the investigative material met. In terms of his telephone being used as a
work tool beyond telephone calls or sending emails, he would use it to:
make memos;
record messages regarding activities when walking around the Plant;
leave notes for himself in a voice format; and
record meetings to make minutes.
[120] On his circumstances at the time of consultation with Dr's Bradley and Milad he was:
Dr Bradley - extremely anxious, upset, very unsure - in a bad place;
Dr Milad - had been medicated for some period of time, distraught (at
times), distressed.
[121] In relation to the 2009 presentation for mental health problems he had been drinking
too much alcohol and was experiencing withdrawal from the medication Clonazepam.
It was Dr Bradley who on 26 July 2013 suggested he should seek some legal advice
(later that day) which led to his request to Dr Bradley for the workers' compensation
medical certificate.
Tracey Harvey
[122] Tracey Harvey has been married to Harvey for almost twelve years and she recalled
waking up on 20 July 2013 to discover her husband was not on the premises. He
returned home at around 8.30 am in a dazed condition, breathing rather heavily, almost
hyperventilating when talking to her. At the time they were on the Sunshine Coast
rather than their usual place of residence.
[123] Harvey had talked about wanting to end it and of how he had worked out how he could
do it properly which saw her encourage him to seek some help through an Employee
Assistance Program. She also contacted his parents to notify them as to what was
taking place and to seek some guidance from them. Tracey Harvey rang a few medical
clinics in the hope of getting him some help but was unable to get an appointment.
The clinics called were identified as:
Bundilla Medical Centre;
Mooloolaba Medical Centre; and
Kawana Clinic.
-- 24 of 53 --
25
[124] In the period between 17 and 26 July 2013 her observations of Harvey were that he
was anxious, not eating or sleeping, was going to the toilet often and he jumped every
time the phone rang. In the week prior to 17 July 2013 she had returned from a cruise
and found him to be in high spirits.
[125] Under cross-examination, Tracey Harvey gave evidence that Harvey was very
distressed on 17, 18 and 19 July 2013 but it was not seen as bad as it was by
20 July 2013 [Transcript p. 5-95]. Harvey would discuss issues regarding his parent's
health on an intermittent basis [Transcript p. 5-96]. They had no serious health issues
although on the night before 17 July 2013 they found out Harvey's father had "some
sort of heart condition" [Transcript p. 5-97]. In regards to her recall of 20 July 2013
being above her recall of 18 July 2013, Tracey Harvey gave evidence that 20 July 2013
was significant because her "husband was talking about committing suicide"
[Transcript p. 5-98].
Submissions
Appellant
[126] The submission identified dates said to be a chronology of the critical events which
included:
8 - 15 July 2013 - Harvey returns from leave;
17 July 2013 - preliminary discussion between Harvey and Dietzsch;
17 July 2013 - discussion between Harvey, Greenaway and
Dietzsch - secretly taped by Harvey and tape revealed in December 2013;
23 July 2013 - letter from Appellant to Harvey seeking response to various
allegations; and
26 July 2013 - Harvey attends Dr Bradley - receives medical certificate
for event of 17 July 2013.
[127] The letter of 23 July 2013 constituted reasonable management action therefore any
alleged injury resulting from receipt of the letter was immunised from compensation
by virtue of s 32(5)(a) and (b) of the Act. Harvey ultimately faced serious allegations
of misconduct which if established had the potential to cause psychological injury to
his colleagues and amounted to a breach of trust to his employer. The course of action
taken by the Appellant to investigate the allegations and request Harvey to respond
was reasonable and unremarkable.
[128] Harvey had not presented to a doctor until eight to nine days after 17 July 2013 with
the doctor reliant upon Harvey's self-reporting and ability to distinguish his feelings
upon receiving the letter of 23 July 2013 and of his demeanour immediately after the
17 July 2013 meeting. The Regulator and Harvey appeared to be at odds over the
"triggering event" with Harvey supporting the Regulator's original position of
17 July 2013 disciplinary meeting without a support person and the Regulator now
viewing the receipt of the 23 July 2013 correspondence as the triggering event.
-- 25 of 53 --
26
Meeting of 17 July 2013
[129] There were references to a number of points made in respect of this meeting which
included:
Dietzsch at the commencement advised of having consistently supported
Harvey and of being anxious to continue that support;
conscious of Harvey's personal life prior to his return from leave;
Dietzsch acted compassionately towards Harvey;
had a proactive duty to protect the physical and psychological health of
its employees after receiving feedback from other staff around Harvey's
behaviour;
Harvey was advised of the intention to seek more in-depth feedback;
Harvey was amenable to taking leave at the time but had the option of
remaining in the workplace;
Appellant behaved professionally and fairly in what was a very general
discussion on a very wide range of possibilities that could arise from the
enquiries;
Harvey was apologetic about the nature of the feedback and for placing
Dietzsch and Greenaway in the position of having to commence enquiries
about his conduct; and
on two occasions Harvey had commended Dietzsch's handling of the
situation and committed to co-operating with the investigation.
[130] The letter issued on 23 July 2013 was consistent with the events of 17 July 2013 and
met the company standards and procedural fairness. There were no assumptions made
about the allegations and advised that after Harvey's response he would be informed
if required to respond to the findings.
[131] When allegations are made and the nature of those allegations may amount to serious
misconduct it is reasonable to ask an employee to take leave or stand down so as to
protect the efficacy of the investigation and to protect Harvey as the most senior
operational manager on site. The absence of a "formal" complaint was irrelevant as
an employer has a duty to respond to any allegation whether truly formal or informal.
[132] Harvey's evidence had previously not been supported in the past where in the matter
Lewis v Q-COMP1 a negative finding had been made about Harvey's evidence in that
case.
Support Person
[133] The submission relied upon a number of authorities regarding the provision or
otherwise of a support person for the purposes of disciplinary matters that included:
Davidson v Griffiths Muir's Pty Ltd2;
Kelly Biggs-Venz v Ozcare3;
1 Lewis v Q-COMP (unreported, Industrial Magistrates Court of Queensland, Lee IM, 15 January 2010)
2 Davidson v Griffith Muir's Pty Ltd [2010] FWA 4342
3 Kelly Biggs-Venz v Ozcare [2010] FWA 4797
-- 26 of 53 --
27
Dissanayke v Busways Blacktown Pty Ltd4
"'…the applicant was advised it was a disciplinary meeting which
could result in his dismissal…the applicant had not requested a
support person' [para 26]. 'The applicant was not offered a support
person of his choice' [para 70]. 'The applicant was not denied an
opportunity for a support person. In fact, he never asked for one'
[para 83]. At [para 133]: 'There was no evidence of the applicant
asking for a support person and being denied the request. Indeed,
the applicant said he did not ask because he did not see the point,
because he knew the request would be rejected…I do not accept this
hypothetical expectation of the applicant…In any event, the test in
s 387(d) of the Act, is not that the applicant was not offered a support
person of his choice, but that "there was an unreasonable refusal by
the employer to allow a support person to be present".' On the
applicant's own evidence, there was no request for a support person
and, logically, there could have been no unreasonable refusal by the
employer. Accordingly, the respondent was not in breach of
subsection (d) of s 387 of the Act."; [emphasis added]
Nishat v Degremont Pty Limited5
"The applicant did not have a representative or support person at the
meeting of 22 October 2009. There is no evidence that the applicant
sought the presence of a representative or support person at that
meeting or that the respondent refused any such request. Contrary
to the submission of the applicant, generally speaking, it is not the
responsibility of an employer to provide a support person or ensure
that one is present." [emphasis added];
Rebecca Jones v Brite Services6; and
Travis Northey v Bradken Resources Pty Limited7
"…the applicant was called into a meeting and was 'not offered a
support person' [para 18]. 'At no time did the applicant request a
support person' [para 44]. Importantly the following comments
were made at paras 196-197:
'There appeared to be some implied criticism that not much
was said in this first meeting and the applicant was not offered
a support person. In my view, neither of these criticisms are
valid. Firstly, as just mentioned, the time since the incident
had only been an hour. The Company was hardly in any
position to have considered the circumstances or taken
evidence from any witnesses. Its purpose was to advise the
applicant that prima facie the incident was serious and, that
being so, it was appropriate he be stood down.
4 Dissanayke v Busways Blacktown Pty Ltd [2011] FWA 3549
5 Nishat v Degremont Pty Limited [2010] FWA 1938
6 Rebecca Jones v Brite Services [2013] FWC 3392
7 Travis Northey v Bradken Resources Pty Limited [2013] FWC 6423
-- 27 of 53 --
28
[197] Secondly, this was not a meeting which warranted a
support person present. On one view, it was not even a
disciplinary meeting at this early stage. In any event, the
statutory requirements of s 387(d) as to whether there was an
unreasonable refusal to allow a support person to be present is
not the same as the employee not requesting a support person.
No adverse finding can arise if the employee does not make
the request - as was the case here.' [emphasis added]"
Deceptive Recording of 17 July 2013 meeting and Engagement with Medical
Experts
[134] Without informing the Appellant, Harvey secretly recorded the meeting of
17 July 2013, attempting in the proceedings to downplay his actions by suggesting it
was the normal use of a workplace tool. The Fair Work Commission has described
the secret recording of workplace conversations as "deceptive".
[135] Dr Milad was not provided with the recording or transcript of the 17 July 2013
meeting with Harvey conceding he saw no advantage in providing Dr Milad with it
despite Harvey's demonstrable good knowledge of the workers' compensation system.
[136] The 17 July 2013 transcript was said to be highly significant as it evidences Harvey's
state of mind at the time of the interview commencing with the following points
identified regarding the consultation with Dr Milad:
the composure, preparation and presence of mind required of Harvey to
record the meeting would be an important forensic matter for Dr Milad to
consider;
Harvey did not disclose to Dr Milad that he had taken the recording;
the recording may balance, indeed contradict, the claims made by Harvey
during the interview with Dr Milad;
Harvey's characterisation of the meeting of 17 July 2013 as a disciplinary
meeting is contradicted by a statement of Dietzsch during the meeting that
it was not a disciplinary meeting;
Dr Milad did not have records of Harvey's consultations with his General
Practitioner;
Dr Milad quotes a statement from Q-COMP that Harvey was not provided
with enough time to prepare for the meeting that he was asked to attend
on 17 July 2013, yet Harvey was able to prepare sufficiently to record the
meeting;
Harvey's statement to Dr Milad that he "until 17 July 2013, was happy at
work, enjoyed his work and was satisfied with his work" is inconsistent
with his preceding conduct on both 15 and 16 July 2013, and his evidently
distressed state upon arriving at work on 17 July 2013. It is also
inconsistent with Harvey's evidence that he was attempting to raise
various safety issues at work; and
Dr Milad reviewed his opinion to that of "aggravation only" although this
was only after Harvey's Counsel had three attempts at obtaining a clear
opinion from Dr Milad.
-- 28 of 53 --
29
Medical Diagnosis
[137] In his first report Dr Milad made a number of highly notable forensic observations
which were said to indicate considerable uncertainty about the true nature and
circumstances of Harvey's condition. They included:
the possibility of hypomania, related to possible bipolar disorder;
unable to rule out mood disorders;
caution regarding the information provided and being unable to
differentiate between alternative psychiatric conditions due to Harvey's
slowness answering questions;
mental health condition (if existing) said to be "mild to moderate" severity
only;
Harvey pre-disposed to mental health conditions in light of previous
history; and
Harvey is said to have a premorbid personality of obsessive compulsive.
[138] Dr Milad considered the extra material he reviewed suggested a mere "aggravation"
relating to an underlying episodic condition albeit that diagnosis cannot be accepted
given the evidentiary pathway Dr Milad was forced to take.
[139] Harvey had not met his obligations by failing to disclose his relevant medical history
in respect of the 2007 and 2009 episodes.
Summary
[140] It was said to be remarkable that a person of Harvey's seniority required a support
person at a non-disciplinary conversation with his supervisor. The conversation of
17 July 2013 was clearly not part of the disciplinary process as no allegations were
put to him nor had there been any preceding investigation. There were questions
around the very first medical certificate with regards to a clear factual error and the
General Practitioner's diagnosis of "acute stress" was not a mental illness found in the
Diagnostic Standards Manual (version 5).
[141] Harvey's conduct in failing to reveal the existence of the 17 July 2013 transcript for a
period of six months during which time he received statutory workers' compensation
payments was said to be fatal to the validity of the workers' compensation statutory
claim.
[142] Harvey had not acted with transparency regarding the secret recording and various
non-disclosures. He had sought to entrap his employer during the conversation on
17 July 2013 rather than sincerely engaging as a very senior employee. His evidence
was given in an unimpressive fashion in which he claimed:
to have read the Disciplinary Standard in detail after the 17 July 2013
conversation; and
decompensated at the very moment of actually reading that standard.
[143] The real cause of Harvey's alleged distress was said to be:
realisation he had not performed optimally on his return from leave;
-- 29 of 53 --
30
having noticed the superior performance of Murtagh his temporary
replacement; and
backdrop of his father's long-term illness including the information about
his father's heart condition received the night prior to 17 July 2013.
[144] The Commission should not sanction workplace conduct involving the secret
recording of conversations to support a workers' compensation claim.
[145] The Appeal should be upheld with costs to be agreed.
Second Respondent Submissions
[146] Harvey lodged a claim for workers' compensation for an acute stress injury on
29 July 2013 as a result of the manner in which an investigation into his alleged
conduct was undertaken by the Appellant.
[147] WorkCover on 19 August 2013 rejected the application prompting the lodgement of
an Appeal with the Regulator on 23 August 2013. The Regulator on 17 October 2013
set aside the decision of WorkCover and determined that the claim was one for
compensation. The Appellant aggrieved by the decision now appeals that decision.
Background
[148] Upon return from an extended period of leave on 8 July 2013, Harvey noted various
changes had occurred within the Plant which identified some operational aspects of
the business had changed to the detriment of the business. Dietzsch claimed on 15
and 16 July 2013 to have spoken to three employees under the managerial
responsibility of Harvey, all of whom expressed serious concerns about the behaviour
and actions of Harvey since his return from leave. These meetings were part of an
informal investigation into the behaviour allegations. As at 7 May 2014 none of the
persons spoken to had made a formal complaint against Harvey.
[149] Greenaway had the responsibility for formulating policies for the Appellant designed
to ameliorate the risk of psychological and psychiatric injuries to staff and a
professional understanding of the risks that management action poses. Along with
Dietzsch he was aware of the substance of the subject matter of the allegations against
Harvey.
[150] On 17 July 2013 Dietzsch informed Harvey that he was to attend a meeting later that
day at corporate head office at which Greenaway would be also present. Dietzsch at
this time had formed the view that the allegations against Harvey were "truthful".
Dietzsch was involved in discussions with the CEO where the standing down of
Harvey was discussed prior to the meeting with Harvey. There was no opportunity
for Harvey to properly prepare for the meeting and he was not given any meaningful
indication of the subject matter of the meeting.
[151] Harvey was not informed that the meeting would be disciplinary in nature and he was
given no indication that he was to be stood down or the potential existed for him to be
dismissed from his role. No opportunity was provided for Harvey to obtain a support
person to attend the meeting with him because he was not fully aware of the true
nature of the meeting. There had been a direct violation of the Appellant's
Disciplinary Standard as well as a failure to put the allegations squarely to Harvey.
-- 30 of 53 --
31
Harvey was informed that "he had caused a lot of damage" to the "business" and it
was implied he may be dismissed from his position.
[152] Just prior to the start of the meeting Harvey decided to record it using his mobile
telephone with the recording speaking for itself. At the conclusion of the meeting it
was stated that he would absent himself from the workplace. On arriving home he
almost immediately began to feel unwell and started to speculate about exactly what
he was being accused of having done. He was concerned that the allegations must
have been extremely serious to warrant a departure from the Code of Conduct and the
Disciplinary Standard. His condition deteriorated further between 20 July 2013 and
27 July 2013 and he exhibited symptoms of his injury consistently throughout this
period.
[153] On 23 July 2013 Harvey received a letter from Greenaway which outlined in basic
terms the allegations against him:
"a. Had not displayed an appropriate image of professionalism at ALMC on
15 July 2013; and
b. Had engaged in conduct which may cause any reasonable person
unwarranted offence or embarrassment, acting in an aggressive manner
towards others and using offensive language on 16 July 2013."
The correspondence confirmed Harvey was directed not to attend work from
18 July 2013 on full pay whilst an investigation was undertaken. He was required to
provide a response by 29 July 2013 and advised the allegations were of a nature that
termination of his employment may occur.
[154] Harvey's symptoms appeared to further inflame around 23 July 2013 and consistently
experienced symptoms up until his attendance at Dr Bradley's practice on
26 July 2013. It was ultimately submitted that Harvey:
"suffered a psychiatric injury as a result of the manner in which a workplace
investigation into his alleged conduct was performed by the senior management
of the Appellant."
Issues for determination and preliminary matters
[155] The Appellant carries the burden of proof being their case must be proved on the
balance of probabilities.
[156] In the matter of State of Queensland v Q-COMP and Coyne8, it was held by Hall P:
"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.
…
An appeal pursuant to s. 498 is not the trial of the worker’s claim for
compensation. 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
8 State of Queensland v Q-COMP and Beverley Coyne [2003] QIC 118
-- 31 of 53 --
32
the decision the appellant bears the onus of satisfying the Tribunal that the
decision appealed against was wrongly made… 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."
[157] For the purposes of these proceedings it had not been disputed that Harvey was a
"worker" for the purposes of the Act with the threshold issue to be decided being
whether Harvey sustained an "injury within the meaning of the Act:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of,
employment if the employment is a significant contributing factor to
the injury.
(2) However, employment need not be a significant contributing factor to
the injury if section 34(2) or 35(2) applies.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric
or psychological disorder arising out of, or in the course of, any of the
following circumstances -
(a) reasonable management action taken in a reasonable way by the
employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management
action being taken against the worker;
(c) action by the Authority or an insurer in connection with the
worker's application for compensation."
[158] If the provisions of s 32(5) of the Act are satisfied, they exclude a psychiatric or
psychological condition from the definition of "injury" with s 32(1) of the Act.
Whether s 32(5) of the Act applies will be a fact in issue in this case.
[159] There is an issue also of whether Harvey's employment was a significant contributing
factor to his psychological injury.
The Rules of Evidence in the Queensland Industrial Relations Commission
[160] Section 320(2)(a) of the Industrial Relations Act 1999 (IR Act) provides that the
Commission is not bound by the rules of evidence, that section does not provide that
the Commission is not to apply those rules, nor does it mean in adversarial
proceedings the Commission may ignore fundamental aspects of procedural fairness.
The principles underlying a rule of evidence, if not the strict rule itself, offers clear
guidance as to how the Commission should inform itself.
[161] The submission argued it was appropriate for quasi-judicial bodies to be guided by
the rule as laid down in Browne v Dunn9. The observance of such a rule is an aspect
9 Browne v Dunn (1893) 6 R 67
-- 32 of 53 --
33
of the principle of natural justice and the non-observance of this rule is capable of
vitiating any decision of the Commission.
[162] In the current case the Appellant made a number of arguments regarding inferences
which he says may be drawn from the evidence, however unfortunately he has failed
to put many of these matters to the various witnesses and if the factual findings he
contends for are made then the relevant witnesses will be effectively denied the
procedural fairness.
Did Harvey suffer an injury for the purposes of the Act
[163] Despite it being contended that Harvey had not suffered an injury within the meaning
of the Act, there was no evidence led capable of discharging the Appellant's
evidentiary and procedural onus in this regard.
[164] The medical certificate issued by Dr Bradley on 26 July 2013 stated that Harvey was
suffering from:
"…a diagnosis of acute (six) stress as a result of workplace issues and threat of
dismissal and advised that you were not able to work from that 17 July 2013
until 16 August 2013."
[165] Dr Milad's reports identified management action taken against Harvey by the
Appellant as the cause of the aggravation of the injury and of Harvey having a
pre-existing psychiatric condition. Harvey gave evidence of the symptomology of his
injury beginning to present in the immediate aftermath of the events of 17 July 2013
and progressively feeling worse over the coming days. He experienced renewed
symptoms of his injury upon receipt of the 23 July 2013 correspondence and
deteriorated further until he visited Dr Bradley. Tracey Harvey's evidence
corroborated Harvey's evidence about his condition in the period between
17 July 2013 and 26 July 2013.
[166] The matter of Groos v WorkCover Qld10 was cited regarding the assessment of the
whole of the evidence submitting it was apparent that Harvey had sustained a personal
injury of a psychiatric nature.
Was Harvey's employment a significant contributing factor to his psychological
injury?
[167] The evidence of Harvey informed the Commission that immediately prior to the
events of 17 July 2013 he was in good psychological health having recently returned
from an extended overseas holiday. The Regulator remains satisfied Harvey's
employment was a significant contributing factor to his psychological injury.
[168] The argument that Harvey's condition was as a result of personal problems relating to
the ill-health of his father and wife had not been put to either of the Harvey's in
cross-examination.
[169] A finding should be made consistent with the version offered by Harvey.
10 Groos v WorkCover Qld [2000] QIC 52
-- 33 of 53 --
34
Was management action reasonable and taken in reasonable way
[170] This largely turns on whether the management action engaged in by the management
of the Appellant was "reasonable management action and taken in a reasonable way".
It is contented on behalf of Harvey that it is not possible for the Appellant to
demonstrate that the actions of Greenaway and Dietzsch amounted to reasonable
management action.
[171] Even if it was to be held that the actions of the Appellant were reasonable management
action then such action was undertaken in an unreasonable way.
Did Harvey's injury arise out of or in the course of management action taken by the
Appellant
[172] The investigation into the allegations against Harvey was management action with the
phrase "arising out of" involving a causal or consequential relationship between the
management action and the injury. There is no requirement for evidence of a direct
proximate relationship between the action and the injury, see Avis v WorkCover
Queensland11.
[173] The evidence in this case supports the contention that the interactions between Harvey
and the Appellant's management are causally responsible for his injury with the
interactions having commenced on 17 July 2013.
The Appellant's Disciplinary Standard
[174] The submission identified what was said to be relevant provisions of the Standard:
"Demotion or Termination of Employment
Demotion or Termination may occur where an employee commits misconduct
that justifies dismissal.
Where termination may proceed, the following steps should be followed:
1. Ensure all relevant issues have been thoroughly investigated (note that it
may be prudent to suspend the employee on pay whilst the investigation
is being completed).
2. Prepare discussion notes for the interview with the employee.
3. Ensure an appropriate Supervisor is available to act as a support person
during the interview.
4. Give reasonable notice to the employee about the impending interview.
5. Ensure the employee is given a reasonable opportunity to have a support
person present at the meeting.
6. Put the allegation/s in full to the employee in writing.
7. Provide examples, specific dates and times of incidences/allegations.
8. Provide the employee the opportunity to comment on and respond to all
allegations in detail. In circumstances that may lead to termination, a
period of up to 5 days may be granted to allow the employee to prepare a
response."
11 Avis v WorkCover Queensland (2000) 165 QGIG 788
-- 34 of 53 --
35
Was the meeting on 17 July 2013 a disciplinary meeting
[175] The Appellant through the evidence of Dietzsch argued that the 1.00 pm meeting on
17 July 2013 was not a disciplinary meeting but instead some sort of informal and
"compassionate" meeting designed to enquire into the wellbeing of Harvey. The
Appellant maintained there was no firm intention to stand Harvey down from his role
and allowing him to have some time away from work was a compassionate measure.
Prior to the meeting, arrangements for Harvey to be stood down had been approved.
[176] There was acceptance by Dietzsch that the Disciplinary Standard had application to
the actions of the Appellant on 17 July 2013 but only applied with regards to the
procedural fairness aspect of the Standard in so much as Harvey was entitled to be
presumed innocent during the investigation. Greenaway had also made concessions
in terms of the Standard applying.
[177] It was of no consequence whether Dietzsch or Greenaway subjectively considered the
meeting to be disciplinary in nature and a finding should be made based on the
evidence as a whole, assessed objectively.
Absence of a support person
[178] The appellant has a policy to ensure that a support person is available for persons
involved in disciplinary meetings with management. The limited notice provided to
Harvey about the meeting gave him no real opportunity to organise an appropriate
support person. The authorities relied upon by the Appellant relate to unfair dismissal
claims and were said to be largely not of any meaningful assistance to the Commission
in this case. None of the cited cases appear to deal with situations where an employer
had obligations under its own policies. The contention that the failure to provide a
support person amounts to a "serious omission" is supported by Moorhead v Moreton
Bay Regional Council12.
Failure to properly particularise the allegations
[179] The failure of the Appellant to supply details of the allegations made against Harvey
when they met on 17 July 2013 was contrary to their own internal policies and it was
not until one week after the meeting that some particulars in respect of the allegations
were provided. The particulars given to Harvey were far from satisfactory and
contained very little detail as to what conduct Harvey had allegedly engaged in and
what damage had been done to the business.
[180] The employer was precluded from relying upon the particulars that were provided
six days after the events that caused Harvey's injury and in any event no amount of
subsequent action can operate to undo or un-taint what has already occurred.
Evidence relevant to determining the reasonableness of taking management action
[181] The evidence in the current case which suggests that a complaint was made to
management about Harvey was hearsay and this led to his attendance at the meeting
on 17 July 2013.
12 Moorhead v Moreton Bay Regional Council [2014] QIRC 29
-- 35 of 53 --
36
[182] In making a determination as to whether it was reasonable to take management action
in connection with a workplace complaint there must be some evidence of the conduct
that had been complained about.
[183] In this matter there was no admissible evidence as to the seriousness or otherwise of
the impugned conduct and it is therefore not possible to determine whether the
management action taken was reasonable. In these circumstances the appeal must fail
on this ground alone.
Failure to give reasonable notice in respect of the meeting held at 1.00 pm on
17 July 2013
[184] Harvey was provided with less than two hours' notice to attend the 1.00 pm meeting
on 17 July 2013 where it already had been seen as likely he would be stood down.
There was a failure to consider alternative duties. The Appellant were aware of the
allegations made against Harvey but had chosen not to inform him.
[185] The Appellant's actions were in breach of sections 4, 6, 7 and 8 of the Disciplinary
Standards and as Harvey was a person who was fully aware of the disciplinary
procedures he became distressed because proper procedures were not being followed.
[186] In relation to the conduct of disciplinary meetings in terms of determining reasonable
management action the attention of the Commission was drawn to Brisbane City
Council v Simon Blackwood (Workers' Compensation Regulator)13.
The recording of the meeting
[187] There was a contention by the Appellant of some adverse inference regarding
Harvey's honesty that could be drawn from his decision to record the meeting of
17 July 2013. Harvey maintained he decided to record the meeting just prior to
attending and intended to keep the recording so he could have a better understanding
of what advice he was about to receive and wanted to preserve an accurate record.
[188] The recording was ultimately disclosed by Harvey and his actions were perfectly
legal. Harvey's explanation as to why he recorded the meeting should be accepted.
Conclusion in respect of the failure by the Appellant to comply with its own policies
and procedures
[189] The Appellant had in effect:
failed to comply with its own policies in relation to management of the
disciplinary matter against Harvey;
had not afforded Harvey natural justice in its conduct of the disciplinary
process; and
their response to the purported allegations of misconduct was seriously
disproportionate.
[190] The Disciplinary Standard referenced a six step process for dealing with an
employee's performance or conduct with the steps described as follows:
13Brisbane City Council v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 104
-- 36 of 53 --
37
a description of the behavioural issue and/or performance problem will be
given to the employee by their Supervisor;
the Supervisor will then explain the business impact of the behavioural
issue and/or performance problem;
the employee will then be given an opportunity to provide an explanation
for the behavioural issue and/or performance problem. The Supervisor
will then consider this response when deciding whether or not a
disciplinary sanction is imposed (a break in the counselling interview may
be required to obtain additional information at this time);
the Supervisor will then inform the employee of his/her decision and
ensure the employee understands the performance and/or behavioural
standards required going forward;
the Supervisor will then formulate an action plan for improvement in
behaviour or performance in consultation with the employee. The action
plan will include a warning describing the consequences if improvement
does not occur; and
the Supervisor will set a review date to meet to assess the application of
the action plan and determine whether sufficient improvement has
occurred.
[191] There is also a provision that relates to the verbal counselling of an employee and the
key areas that should be addressed includes:
identifying the specific areas of concern or allegations including relevant
dates and times;
giving the employee the opportunity to respond and provide feedback
comments;
determining an action plan to ensure future performance improves;
setting a review date; and
documenting a record of discussion.
[192] The circumstances upon which an employee is to be suspended on full pay pending
investigation is when misconduct is committed to an extent that justifies dismissal or
alternatively demotion or termination of employment where an employee has failed
to adhere to a final warning.
[193] The policy concerning natural justice states in all instances of counselling the
following principles are to be observed:
innocence is always presumed;
all allegations regarding the poor performance or misconduct are given in
full;
the employee is given an opportunity to explain his/her performance
and/or behaviour; and
disciplinary action taken is appropriate to the seriousness of the breach.
[194] The submission identified the matters that were said to be serious departures and
omissions from the six step policy which included:
failed to provide a description of the behaviour/performance issues;
meaningfully explain the impact on the business;
-- 37 of 53 --
38
Harvey not given an opportunity to respond during the course of the
meeting as he was not informed of the issues; and
failure to provide information to Harvey prior to the meeting about the
nature of the meeting.
[195] This is not a situation where the concept of reasonable management action taken in a
reasonable way could apply. There is a clear causative chain of events leading to the
development of Harvey's condition which related to the actions of Dietzsch and
Greenaway which were in direct breach of the Appellant's policies.
[196] The failure to adhere to its own published disseminated policies cannot be considered
a reasonable exercise of management action.
Conclusion
[197] The Appellant has failed to satisfy its onus to demonstrate that the decision of the
Regulator ought to be interfered with and the large number of serious breaches of the
Appellant's own policies and standards having the cumulative effect of ensuring that
it was unreasonable for the Appellant to undertake its management action and the
management action was unreasonable and not taken in a reasonable way.
Regulator - Submissions
[198] The Regulator in addition to supporting the written outline of argument provided by
the Second Respondent added some additional submissions.
[199] The Appellant was said to have failed to appreciate the events and its own conduct
leading up to the meeting held at 1.00 pm on 17 July 2013. It was in this period the
foundation for the disciplinary procedures against Harvey emerged and the Appellant
refused to outline the allegations to Harvey in the said meeting in order to obtain his
version or explanation of events. The process adopted by the Appellant amounted to
unreasonable management as pursuant to s 32(5) of the Act.
[200] Accordingly the Appeal should be dismissed with costs.
Events prior to the meeting of 17 July 2013
[201] After a period of long service leave Harvey returned to work on 8 July 2013 and after
some absence due to sick leave was back full-time from 15 July 2013. Subsequently
it had been reported to Greenaway that Harvey had engaged in at least two workplace
incidents which ultimately formed the basis of the allegations put to Harvey in the
correspondence of 23 July 2013. The allegations were serious enough for Greenaway
to ask Dietzsch to "investigate [the allegations] informally".
[202] Greenaway recalled that Dietzsch had spoken informally to some employees and
remembered of being advised of the names of employees spoken to. Dietzsch
informed him of an intention to speak to Harvey and was advised a meeting would
occur on the afternoon of 17 July 2013.
[203] Dietzsch who had met with Harvey prior to the 1.00 pm meeting gave evidence that
"tears welled up in [Harvey's] eyes" and he was surprised by the fact that some
co-workers were upset with his poor interactions with them. Plainly on the evidence
-- 38 of 53 --
39
Harvey's frame of mind could only be described as "sensitive" at that time. Coupled
with other evidence that Harvey had been upset since his return to work, it was
unreasonable management action not to offer Harvey a support person for the later
meeting having regard to his "state" and the issues which warranted the meeting to be
called.
[204] The position of offering extended personal leave to Harvey had been the subject of
discussion with the Appellant CEO prior to the commencement of the meeting without
conveying the specific nature of Harvey's behaviour to the CEO.
The meeting of 17 July 2013
[205] This meeting was electronically taped by Harvey without the knowledge of the other
participants. Greenaway in evidence accepted it had been put to Harvey prior to the
meeting that he take personal leave and at the meeting itself there was no discussion
about a potential other option.
[206] Greenaway's explanation for not detailing the precise concerns to Harvey at the
meeting despite being armed with considerable information relating to his behaviour
and conduct was that:
they wanted to understand how Harvey was feeling; and
it was not appropriate to outline the reason of events that had been detailed
to management.
Greenaway stated in cross-examination:
"I wanted to be more specific in terms of being able to put something in writing,
which is our standard practice - to put something in writing to an individual so
that they can respond to it; that's typically what we do in a formal investigation."
Although management had formed a view the allegations were serious, they were of
a view that the meeting was not the start of any disciplinary process and there was no
application of the disciplinary policy at that time.
[207] At best, even if accepting the Appellant's policy had not been applied the fact that
Harvey was offered to take leave and the subsequent letter of 23 July 2013 which
detailed the allegations of misconduct, it all points to a conclusion that the meeting of
17 July 2013 was in fact the start of a disciplinary process against Harvey. There is
no other characterisation open.
[208] Accordingly, Harvey should have been afforded the opportunity of a support person.
The authorities relied upon by the Appellant were of question in that it was not
apparent how the said authorities were relevant and appeared to deal with the relevant
statutory obligation imposed under Commonwealth legislation. Further each case will
turn on their own particular facts and in this instance it was not apparent Harvey knew
what the "true" purpose of the meeting was. Harvey's request for the specifics of the
alleged concerns were not forthcoming and the Appellant had every opportunity to at
least canvas the allegations with him and obtain a response.
[209] As it transpired the way in which the meeting was conducted achieved only one
desired outcome being to have Harvey take leave pending, one assumes, steps
-- 39 of 53 --
40
associated with finalising the letter of 23 July 2013. Again this process was
unreasonable.
[210] There was criticism of the fact that Harvey recorded the meeting although plainly, it
could be inferred that he had concerns as to why the meeting was arranged. There is
no foundation to assert Harvey sought to "entrap" management with the recording
revealing that he was generally calm throughout the meeting and sought clarity of
matters on a number of occasions.
Appellant Submissions in Reply
[211] The discussion on 17 July 2013 was not the commencement of any disciplinary
process against Harvey with him being unable to credibly point to any particulars of
dates, times, places or names of any employee which were put to him in the discussion
on 17 July 2013. The discussion was clearly conducted prior to the investigation of
any of the allegations.
Comments about the Fair Work Act 2009 (FWA)
[212] The FWA plainly sets a standard for reasonable, just and fair actions by an employer
to determine what action, if any, to take about misconduct by an employee. The FWA
sets a useful benchmark in the context of a fair process for a dismissal.
[213] Even accepting that a support person was useful for emotional support on occasion
during a disciplinary process, there was no evidence at all of Harvey experiencing
distress during a non-disciplinary discussion and indeed Harvey on three occasions
voluntarily praised the approach taken by the Appellant.
Medical Information
[214] The evidence of the Psychiatrist and Harvey's General Practitioner were only useful
in evidencing Harvey's state of mind and he was never appropriately assessed to
determine whether he had any injury arising from work. The General Practitioner did
not see Harvey until eight to nine days after the 17 July 2013 meeting and relied
entirely on Harvey's self-reporting.
[215] The abandonment of the Regulator to call both the Psychiatrist and the General
Practitioner to give evidence was likely due to it becoming clear that the forensic
events were not briefed to the Psychiatrist by the Regulator. The Regulator presented
no credible medical evidence to substantiate Harvey's workers' compensation claim.
The medical certificate issued by the General Practitioners did not comply with the
prescribed form.
Summary
[216] The discussion of 17 July 2013 was not disciplinary in nature. The Appellant's
standard makes no mention of non-disciplinary discussions between employee and
employer. This is a common sense approach which avoids the complications inherent
in placing a third party support person in every important workplace conversation
between and employee and the employer.
-- 40 of 53 --
41
Conclusion
[217] It was not of dispute that for the purposes of s 11 of the Act that Harvey at all relevant
times was a "worker" and therefore entitled to have lodged an application for workers'
compensation.
[218] The matters for determination following the hearing of the Appeal were that on the
balance of probabilities:
did Harvey sustain a personal injury;
if such an injury was sustained did it arise out of or in the course of his
employment;
was the employment a significant contributing factor to the injury; and
whether the operations of s 32(5) of the Act excludes the personal injury
from compensation on the basis that Harvey's psychiatric or psychological
injury (if such an injury was sustained) arose out of reasonable
management action taken in a reasonable way by the Appellant in
connection with Harvey's employment.
Personal Injury
[219] In consideration as to whether Harvey sustained a personal injury in accordance with
s 32(1) of the Act, such a determination is generally reliant upon the medical evidence
before the proceedings. In this case when the original list of witnesses were
exchanged the Regulator nominated Dr Bradley and Dr Milad as witnesses to provide
evidence on their behalf. Neither the Appellant nor Harvey gave an indication of
relying upon the evidence of medical practitioners or expert witnesses from a medical
discipline.
[220] In the course of the proceeding the Regulator informed the Commission that they no
longer intended to rely upon evidence of a medical nature and accordingly they would
not be calling either of the two medical practitioners previously identified in their
witness list. The Appellant at that time indicated an intention to add both Dr Bradley
and Dr Milad to their witness list on the basis there was "no property in a witness".
[221] Dr Bradley had been Harvey's treating general practitioner since 2 July 2007 and gave
evidence of a consultation involving Harvey on 26 July 2013 at which time he had
presented in a "devastated" state and was given a referral to see a Psychologist. The
consultation note [Exhibit 12] authored by Dr Bradley on 26 July 2013 identified the
reason for attendance as being "counselling re extreme distress". Under the heading
of "History" Dr Bradley had recorded the following commentary:
"Just a week or two back from his long service leave, only to be called into his
supervisors office last Wednesday, [17 July 2013] and hit with the bombshell,
with no prior warning, that he is to be suspended on pay, while he responds to a
list of allegations basically claiming he has severely damaged the business".
Dr Bradley went on to state:
"Throughout the consultation he [Harvey] was extremely distressed and often
tearful, and quite clearly feels morally outraged and at the same time devastated
-- 41 of 53 --
42
at the apparent unfairness of it all, and the fact it has come so 'out of the blue
and with no prior warning'."
[222] Under the further heading of "Management" Dr Bradley stated:
"All I could do in the end was advise re means to gain more calm control, and
present as reasoned a case as he can, and consider initiating the procedures
relevant to a 'wrongful dismissal' case if he receives no satisfaction from the
proper hearing, discussion, and explanations he deserves."
[223] On 26 July 2013 Dr Bradley issued a Workers' Compensation Medical Certificate that
contained the following:
"Diagnosis: Acute Stress as a result of workplace issue and threat of dismissal.
Worker stated date of injury 17 July 2013.
Worker's stated cause of injury (if not previously supplied): Called into
supervisor's office on the above date and advised, with no prior warning, he was
suspended pending his response to a series of allegations which he feels are
unfounded."
[224] WorkCover Queensland arranged for Harvey to be the subject of an Independent
Specialist Medical Examination conducted by Dr Milad a Psychiatrist in regards to
Harvey's claim for compensation.
[225] Dr Milad was visited by Harvey on 2 December 2013 when he was no longer in the
employ of the Appellant and a significant period of time beyond the stated date of
injury (17 July 2013) therefore it is more relevant in the circumstances to rely upon
the medical evidence of Dr Bradley which in my view is sufficient to establish that
Harvey suffered a personal injury in the form of "Acute Stress" as diagnosed by
Dr Bradley on 26 July 2013.
Did Harvey's injury arise out of or in the course of employment
[226] Dr Bradley issued a Workers' Compensation Medical Certificate on 26 July 2013 that
identified the worker's stated cause of injury being the events of 17 July 2013
(previously mentioned) and it is likely he relied upon a history provided by Harvey at
the time of consultation in forming his opinion.
[227] Dr Milad in his first report [Exhibit 6] also placed reliance upon a history given by
Harvey on 2 December 2013 that he had sustained a personal injury that arose out of
management action on 17 July 2013 which Harvey had considered unreasonable.
Dr Milad also had the benefit of access to sickness certificates issued by Dr Bradley
since 17 July 2013 with a current certificate covering the period through until January
2014 still in play.
[228] Harvey by the nature of his direct report to Dr Bradley on 26 July 2013 regarding the
incident in the workplace of 17 July 2013 as being causative of his (then) condition
clearly related the condition to his employment.
-- 42 of 53 --
43
[229] I am therefore able to conclude that Harvey did sustain a personal injury that arose
out of or in the course of his employment.
Was Harvey's employment a significant contributing factor to his personal injury
[230] The Appellant through the evidence of Dietzsch presented an argument that Harvey
prior to taking long service leave had been dealing with a number of personal issues
regarding his wife's health and the impact of those circumstances on their relationship.
Having returned to work it was Dietzsch's further evidence that on the morning of
17 July 2013 Harvey had "teared up" when describing the situation with his father's
health. Undoubtedly the purpose of the Appellant's argument was to prosecute a case
that matters beyond the workplace were causative factors with regards to Harvey's
psychiatric/psychological condition.
[231] Harvey, with regards to his personal circumstances gave evidence that his wife had
undergone a minor medical procedure in May 2012 however at no time had she been
diagnosed with cancer nor had she undertaken medical treatment in the form of
chemotherapy or the like. Harvey had not been overly concerned about her health
during the period of his long service. In regards to the health of his parents (at or
around 17 July 2013) who were aged 90 and 85 years and were residents in a
retirement village, his concerns were no more than any child would worry about a
parent.
[232] On 7 May 2014 Dr Milad provided a report to Harvey's legal representatives in which
he thanked them for providing extra material of a medical nature that indicated Harvey
had suffered at least two psychiatric episodes in 2007 and 2009 which had not been
covered in his Report of 5 December 2013. From the added information Dr Milad
opined that Harvey had a recurrent psychiatric disorder of at least three episodes of
presenting in acute stress situation with symptoms of stress, anxiety and depression
of significant severity but not persistent. The condition Harvey presented with in 2013
was of a similar nature which Dr Milad considered to be an aggravation of pre-existing
condition or relapse of pre-existing condition, stating:
"The information provided does not indicate that he was unwell or has received
treatment in the early half of 2013, which indicated to one that his symptoms
became prominent and worst after July 2013, precipitated by his reaction to the
perceived stress from the suspension and investigation."
[233] Note: At the consultation with Dr Milad on 2 December 2013 there is no question
that Harvey failed to provide information regarding psychiatric episodes in 2007 and
2009 although at the time identifying a similar reaction of less severity some 20 years
earlier when he had been made redundant.
[234] Dr Bradley recorded on the Workers' Compensation Medical Certificate issued on
26 July 2013 that Harvey's personal injury arose in effect from a workplace incident.
[235] I am satisfied that the personal injury sustained by Harvey was an aggravation of a
pre-existing condition of which his employment with the Appellant was a significant
contributing factor to the injury.
-- 43 of 53 --
44
Whether the operation of s 32(5) of the Act excludes Harvey's personal injury on
the basis of reasonable management action taken in a reasonable way
[236] There are in effect two events that emerged in the course of proceedings that required
consideration by the Commission with respect to the alleged causation of Harvey's
psychiatric condition. Those being:
meeting of 17 July 2013 at 1.00 pm; and
correspondence (dated 23 July 2013) which directed Harvey not to attend
work from 18 July 2013 pending an investigation into allegations that had
been levelled against him.
[237] The Appellant's case was that neither of the two events alleged to be causative of
Harvey's condition were events where management action had been taken in an
unreasonable way by the Appellant thus contributing to the causation of Harvey's
psychiatric condition.
[238] In terms of standards of behaviour and conduct expected in the workplace at the time
of the aforementioned events in July 2013, there was in place a company initiated
document in the form of a Code of Conduct [Exhibit 1].
[239] The Code of Conduct expected all of the Appellant's employees to observe the highest
standards of ethics, integrity and behaviour during the course of employment and
provided an overview of the fundamental business values of the company. All
workplace participants were expected to conduct themselves in a professional and
courteous manner and observe a range of standards identified in the policy. Of the
standards relevant to this Appeal, they included:
"Never
Treat co-workers, customers, suppliers, company management and
the general public in a discriminatory manner or without proper
regard for their rights and dignity. In this regard, discrimination,
victimisation or harassment based on a person's race, colour, creed,
religion, national origin, citizenship, age, sex, sexual orientation,
marital status, union membership or non-membership, mental or
physical disability or any other classification protected by law will
not be tolerated.
Engage in conduct which may cause any reasonable person
unwarranted offence or embarrassment.
Act in an aggressive manner towards others in the workplace.
Use obscene or offensive language in the workplace."
[240] There was also a provision in the Code of Conduct in respect of Managers and
Supervisors which had a direct relationship to Harvey as the most senior operational
manager in the business and an employee of seven years of service. The provision
required Managers and Supervisors to:
"Promote a positive team spirit.
Maintain confidentiality when conducting investigations into grievances
and disputes.
Avoid bias in decision making.
-- 44 of 53 --
45
Ensure compliance with procedures when carrying out counselling and
discipline.
Exercise objectivity when administering rewards or discipline.
Not condone, permit, or fail to report any breaches of the above code by
workplace participants under their supervision."
[241] Also identified in the Code of Conduct were a number of Associated Documents that
included a Disciplinary Standard.
[242] The Disciplinary Standard applicable in July 2013 contained the following content
relevant to the matters raised in these proceedings:
"PURPOSE
The objective of this standard is to:
correct and/or improve the standard of conduct or performance of
an employee where appropriate or necessary; and
provide any particular employee with an opportunity to correct
unacceptable conduct (other than in situations where summary
dismissal is appropriate) or unsatisfactory performance.
…
Grounds for disciplinary action
Disciplinary action may be taken in response to any:
Unsatisfactory performance;
Unacceptable conduct; and
Wilful or serious misconduct.
…
Counselling
Counselling is the process of correcting an employee's inappropriate behaviour
(sometimes referred to as misconduct) or poor performance in a systematic
manner. Counselling should not be confused with other management activities
of coaching, performance reviews or performance management."
[243] An example of inappropriate behaviour (misconduct) and poor performance contained
within the Disciplinary Standard included abuse or harassment of other people.
[244] In terms of disciplinary action, there were provisions for dealing with an employee
who had committed a breach of employment obligation by engaging in misconduct.
In responding to such misconduct the Disciplinary Standard identified a process to be
followed:
"This process follows six steps:
1. A description of the behavioural issue and/or performance problem will
be given to the employee by their Supervisor.
2. The Supervisor will then explain the business impact of the behavioural
issue and/or performance problem.
3. The employee will then be given an opportunity to provide an explanation
for the behavioural issue and/or performance problem. The Supervisor
will consider this response when deciding whether or not a disciplinary
sanction is imposed (a break in the counselling interview may be required
to obtain additional information at this time).
-- 45 of 53 --
46
4. The Supervisor will then inform the employee of his/her decision and
ensure the employee understands the performance and/or behavioural
standards required going forward.
5. The Supervisor will then formulate an action plan for improvement in
behaviour or performance in consultation with the employee. The action
plan will include a warning describing the consequences if improvement
does not occur.
6. Then the Supervisor will set a review date to meet to assess the application
of the action plan and determine whether sufficient improvement has
occurred."
[245] There was also reference made in the Disciplinary Standard with regards to natural
justice:
"Natural Justice
In all instances of counselling the following principles of Natural Justice are to
be observed:
Innocence is always presumed
All matters are dealt with promptly
All allegations regarding the poor performance or misconduct are
given in full
The employee is given an opportunity to explain his/her
performance and/or behaviour
The disciplinary action taken is appropriate to the seriousness of the
breach
Mitigating factors in relation to the breach are considered."
17 July 2013 meeting at 1.00 pm (Dietzsch, Greenaway and Harvey)
[246] In the lead up to this meeting it was the evidence of Greenaway that he was contacted
by Murtagh (on 16 July 2013) who had acted as Plant Manager whilst Harvey was on
extended leave in early to mid-2013. Murtagh is said to have expressed concerns after
witnessing behaviour from Harvey which was described as "a bit of a tirade" and
included raised voices and the use of expletives towards subordinate employees.
There were concerns the behaviour was outside the Code of Conduct provisions.
[247] Greenaway informed Dietzsch of the concerns, who then undertook to further
investigate the matter. On 17 July 2013 Dietzsch advised after having spoken to a
number of employees he had decided to schedule a meeting with Harvey that day at
which Greenaway's attendance was required.
[248] Whilst there was no evidence in the proceedings from Murtagh to corroborate the
evidence of Greenaway, I can find no reason to doubt the veracity of Greenaway's
evidence around the initial raising of concerns.
[249] Dietzsch in giving his evidence offered a description of Harvey on his return from
long service leave that he appeared to be very energised, fit, healthy and motivated to
return to work. In the lead up to the meeting of 17 July 2013 he had spoken to a
number of employees who had indicated concerns over Harvey's behaviour since his
return from leave which included having witnessed Harvey breaking down and crying.
Dietzsch had concerns himself that there was a chance the Appellant would have a
-- 46 of 53 --
47
bullying or stress claim against them in respect of the behaviour described and decided
to have a "chat" with Harvey to find out what was going on.
[250] Prior to the 1.00 pm meeting of 17 July 2013 he had a one-on-one discussion with
Harvey where he informed him of concerns he held regarding the reported interaction
with his team and of the need to have a meeting involving Greenaway. Dietzsch in
the company of Greenaway prior to the meeting of 17 July 2013 had a telephone
hook-up with the CEO where they informed him they may need to give Harvey some
personal time off.
[251] The meeting commenced at around 1.00 pm on 17 July 2013. The Appellant through
the evidence of Dietzsch informed that the meeting was not about performance nor a
disciplinary process. Greenaway's evidence was that he believed the purpose of the
meeting was to provide Harvey with some internal feedback from Dietzsch's various
discussions at the Plant level and being hopeful Harvey would be amenable to taking
some personal leave to "put some distance between him and the Plant".
[252] According to Greenaway in the course of the meeting Harvey agreed to take some
personal leave and in an effort to protect Harvey's integrity as Plant Manager, staff
were to be informed the leave was due to his father being unwell. Greenaway had not
considered at the time whether the Disciplinary Standard had any application. In the
course of the meeting Harvey was said to have been quite apologetic at the possibility
of having offended staff on the previous two days.
[253] Dietzsch had not considered the meeting to be a performance discussion which was
the reason Harvey had not been told to bring a support person.
[254] The position of Harvey regarding the one-on-one meeting of 17 July 2013 was that
Dietzsch had advised him he had upset a number of people and had damaged the
business. At that meeting he recalled telling Dietzsch that he had concerns at the time
about his aging parents. In the period between the end of the meeting and the start of
the 1.00 pm meeting (1.5 hours) he became extremely anxious, stressed and wondered
what he had done.
[255] In terms of the 1.00 pm meeting on 17 July 2013 Harvey had a completely different
recollection than the other participants of events, giving evidence that in the meeting
Dietzsch had:
indicated he wanted to stand Harvey down;
Harvey was required to absent himself because he had upset a number of
people; and
Harvey had damaged the business (repeated on a couple of occasions).
[256] Harvey was said, in the absence of details as to how he had damaged the business,
sought clarification so as to respond to the allegations. At the conclusion of the
meeting he was told to stand down and to advise staff he was taking a leave of absence.
Harvey denied agreeing to take personal leave and his evidence was he was never
given that option.
[257] Harvey became quite distressed in the days immediately following the meeting,
attempting to unsuccessfully obtain medical treatment on or around 20 July 2013 and
sought the services of a Psychologist.
-- 47 of 53 --
48
[258] In most circumstances the Commission would have to make any findings about the
meeting of 17 July 2013 based upon a preference for the evidence of one party as
opposed to the other. In this case prior to entering the 1.00 pm meeting on
17 July 2013 Harvey activated his work issued telephone for the purposes of covertly
recording the content of the meeting. The effect of knowing the meeting was being
recorded in my view afforded Harvey the opportunity of taking a more measured
approach to the discussion than someone may have taken if they were unaware of a
meeting being recorded.
[259] Whilst I see no benefit at this point in offering a view about the behaviour of Harvey
(as a Senior Manager) deciding to record a discussion without informing the other
participants, I do however intend to reply upon the recording [Exhibit 15] which was
played three times (in its entirety) in the proceedings and again at the time of
producing this decision.
[260] Arising from the recording there were numerous references by Dietzsch to Harvey
being paid personal leave and towards the end of the meeting acknowledgement from
Harvey that he would inform the relevant people that he was "taking some personal
leave" and of having "agreed" to take some personal leave which would not come out
of his annual leave. I found no passage of conversation in the recording that would
confirm at the meeting on 17 July 2013 Harvey was "stood down" as claimed.
[261] In respect of Harvey's evidence that he was told he had damaged the business there
were no such references in the recording of that nature but there were references to
him having caused damage without expanding upon the type of damage. One might
speculate the comment implied damage to the business just as one might equally
speculate it was damage to relationships at the Plant. Whilst speculation is unhealthy
what is clear is there was no mention of Harvey having caused damage to the business
as claimed. At a point two thirds of the way through the meeting Dietzsch informs
Harvey his impression was that any damage done was not too great and was fixable
although not resiling from the position that there was some real damage and if Harvey
remained in the role something had to be done to fix it.
[262] On whether the meeting was in fact a disciplinary meeting as claimed by Harvey the
recording of the meeting had Greenaway informing Harvey this was no more than a
preliminary discussion and there was no written information at the time that could be
passed on. Dietzsch on the same issue made it clear there had been no formal
complaint at the time of the meeting, just an "amount of noise".
[263] At the conclusion of the discussion Harvey is recorded commending Greenaway and
Dietzsch for the way they had managed it and stating he was deeply upset at having
created the situation. He apologised for distracting them from their business and when
told by Dietzsch if it was starting to "do his head in" to contact him, responded by
saying that would not happen as "there's been worse things than this".
[264] The recording contained no reference to comment either by Harvey or the other two
participants with regards to the matter of Harvey having a support person present or
having been at least offered the opportunity.
[265] The Disciplinary Standard at Appendix One "Counselling Interview Guidelines"
recommends that the employee be offered an opportunity to have a support person
present during the counselling process if it may lead to a written warning. In the case
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of a Final Written Warning the same Appendix indicated that the employee on being
advised the reasons for the counselling interview should be advised before the
interview commences if they require a support person to be present.
[266] With regards to the 17 July 2013 1.00 pm meeting the priority finding for the
Commission is whether that meeting was a part of a disciplinary process in accordance
with the Appellant's Disciplinary Standard or as claimed by the Appellant a discussion
regarding a number of concerns about reports of Harvey behaving inappropriately
towards subordinate employees and not a performance discussion.
[267] There were options available to the Appellant to respond to an employee's misconduct
by way of counselling and to correct and improve a standard of conduct. Those
options are clearly defined in the Disciplinary Standard which logically if embarked
upon by the Appellant would allow for the enlivenment of the disciplinary process.
Once enlivened the question becomes was the management action of the Appellant
reasonable and undertaken in a reasonable way in relation to the conduct of the
process.
[268] There is a need to take into account the status at the time of Harvey in that he was the
Plant Manager to whom 120 or more employees reported to directly or indirectly. He
had a firsthand knowledge of the Code of Conduct and the Disciplinary Standard
having as a Senior Manager participated in such processes on more than one occasion.
[269] Having regard for his status and the impact upon subordinate employees if the
allegations were upon investigation to be founded there was the potential of an
exposure for the Appellant business with regards to duty of care obligations.
[270] Dietzsch in particular responded promptly to the information around the alleged
inappropriate behaviour and undertook some "informal" enquiry that did not "lock in"
the allegations as such but certainly there were issues that required a more thorough
and formal investigation which he requested (at the time) be undertaken at
Greenaway's earliest convenience.
[271] He made immediate contact with Harvey and in essence informed him of what had
occurred and requested he meet at 1.00 pm that day (17 July 2013) with Greenaway
and himself. Harvey was given around 1.5 hours' notice of the meeting and had been
provided with an overview of the matters at issue.
[272] It was reasonably evident that Dietzsch had (prior to the 1.00 pm meeting of
17 July 2013) given some serious consideration to having, in the short term, Harvey
exit himself from the Plant whilst investigations were conducted into the allegations.
Unquestionably a prudent managerial consideration in the circumstances when taking
into account the standing of Harvey in the business as Plant Manager. He consulted
with the CEO and received tacit approval prior to the meeting.
[273] In the course of the meeting that was recorded covertly without the knowledge of
Greenaway or Dietzsch, it was made clear to Harvey it was a preliminary discussion
and in regards to the alleged inappropriate allegations there had been no formal
complaint lodged. Dietzsch went to the extent of informing Harvey that he had the
impression the situation was "fixable".
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[274] The record of the meeting is clear in that Harvey was not the subject of accusation he
had damaged the business per se and it was abundantly clear he was not stood down
at the conclusion of the discussion as claimed by him but he in fact had agreed to
taking a period of paid personal leave which would not be deducted from his accrued
annual leave entitlement. Dietzsch advised Harvey that an investigation as a best case
scenario would take a couple of days but most probably it could be just over a week.
There was at a time well into the meeting that Harvey commended Dietzsch on how
he was managing the situation.
[275] The Appellant, facing a difficult set of circumstances, undertook a process that was
reasonably open to them in terms of management action, undertaking their action in a
reasonable way in reaching agreement with Harvey to take some personal paid leave
whilst the concerns regarding his behaviour could be further investigated.
[276] The issue regarding the failure to ensure or at least offer Harvey the opportunity to be
accompanied by a support person was not a failure of process by the Appellant and
due to the nature of the 17 July 2013 discussion which did not relate to a written
warning or termination of employment and there was no such requirement pursuant
to the Disciplinary Standard.
23 July 2013 correspondence - allegations of misconduct for Harvey's response
[277] Following the 17 July 2013 meeting Greenaway's evidence was that he interviewed a
number of staff after which a "statement of allegations" were prepared. Prior to
putting the allegations to Harvey he exercised the option of contacting Harvey by
telephone where he invited Harvey to come in and view investigation findings and
respond to the material. Harvey declined the request to participate and instead asked
that the document be emailed to him.
[278] The correspondence of 23 July 2013 set out the allegations that had been made against
Harvey providing details of the persons involved and present when Harvey was
alleged to have engaged in inappropriate conduct. Additionally the dates, times and
locations were clearly identified in the correspondence.
[279] The Appellant, it was advised, had not made any assumptions about the accuracy of
the allegations and in accordance with the Disciplinary Standard he was invited to
respond in writing to the allegations by no later than 29 July 2013. At the completion
of the investigation he was to be informed of the findings and then given the
opportunity to respond to those findings. If the allegations were founded he was put
on notice that disciplinary action may be taken against him that could include the
penalty of termination of employment.
[280] The letter confirmed he had been directed not to attend work from Thursday
18 July 2013 pending an investigation into the allegations and was required remain
away from the workplace until further notice whilst being paid his usual remuneration.
[281] Greenaway, under cross-examination, gave evidence that the correspondence was
defective in that it should have identified the date as 23 July 2013 in being directed
not to attend work and not 18 July 2013 as contained within the correspondence.
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[282] The disciplinary process outlined in the correspondence (23 July 2013) met the
conditions imposed on the Appellant in the Disciplinary Standard for the initial stages
of a disciplinary action in that:
a description of the behavioural issues were provided;
identified the business impact of the behavioural issues indicating the
impact in terms of:
professional image;
causing unwarranted offence, embarrassment by acting in an
aggressive manner using offensive language; and
Harvey given an opportunity to provide an explanation for the behavioural
issue allegations.
[283] The letter of 23 July 2013 was the formal commencement of the disciplinary process
and was reasonable management action taken in a reasonable way despite the error in
the correspondence that identified Harvey having been directed not to attend work
from 18 July 2013 rather than 23 July 2013. The impact of the error in my view was
limited in terms of its application to Harvey as he would have been fully aware
(despite his evidence) of being amenable to taking a period of paid personal leave as
agreed at the 17 July 2013 meeting and therefore already away from the Plant.
[284] The actions of an employer in any event to remove an employee from the workplace
following allegations of serious inappropriate behaviour whilst investigations are
conducted is far from an uncommon practice and provided, as was the case here, that
the employee continues to receive their usual level of remuneration, any disadvantage
one might suffer is somewhat minimised.
Witness Credibility
[285] In hearings of this nature the outcome of the Appeal is more often than not determined
on the evidence of a party being preferred to that of another.
[286] In this case the medical evidence was neither contested nor contentious with
Dr Bradley and Dr Milad's evidence accepted by the Commission as honestly
representing their views and opinion. In terms of their evidence there was significant
reliance upon the history provided by Harvey with regards to the work events said to
be causative of his psychiatric condition. With respect to the first report from
Dr Milad, he was not provided with a full history from Harvey regarding previous
psychiatric events in 2007 and 2009 yet Harvey made mention of an event some
20 years earlier.
[287] The witnesses for the Appellant (Greenaway and Dietzsch), in the view of the
Commission, gave their evidence in an honest and open manner and they assisted
appropriately in their evidence in the cross-examination phase. The Commission
takes no issue with their credit.
[288] In terms of Harvey, his evidence was not regarded by the Commission at the same
level as the previously mentioned witnesses. It was in the circumstances reasonable
to conclude that Harvey gave misleading evidence regarding the meeting at 1.00 pm
on 17 July 2013 in regards to the issues of:
not being offered personal paid leave;
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allegations he had damaged the business; and
having been stood down.
[289] Harvey having access to the disc holding the recording of the meeting as well as a
transcript of the meeting prepared by his wife but not tendered as an Exhibit in the
proceeding would have been fully aware of the fundamental inaccuracies of his recall
of what happened in that meeting.
[290] Further it would be reasonable to conclude that he deliberately misinformed
Dr Bradley of the causative nature of his injury that on 17 July 2013 being threatened
with dismissal when there was no factual basis for that claim based on the recording
of the 17 July 2013 meeting.
[291] In the initial consultation on 2 December 2013 with Dr Milad he withheld information
about two psychiatric events in 2007 and 2009 yet was prepared to mention an event
from some 20 years past. It would not be unreasonable to make the inference such
information was withheld due to concerns of a negative impact upon his claim for
workers' compensation.
[292] Finally, the evidence of Harvey that he decompensated on 17 July 2013 and the
supporting evidence of Tracey Harvey of particular concerns about an episode on
20 July 2013 is given little weight on the basis of his non-attendance at a medical
practitioner until 26 July 2013 and concerns expressed previously about Harvey
misleading the Commission in terms of his evidence.
[293] I have a strong reluctance to accepting Harvey based on his evidence and my
observations in the proceeding as being a witness of credit.
Finding
[294] On consideration of the evidence, material and submissions before the proceeding, I
make the following findings:
Harvey was, for the purpose of s 11 of the Act, at all relevant times a
worker;
Harvey sustained a personal injury in the form of a psychiatric injury
pursuant to s 32 of the Act; and
the personal injury sustained by Harvey arose out of, or in the course of,
his employment and the employment was a significant contributing factor
to the injury.
[295] I am satisfied that in terms of the personal injury of Harvey being excluded from being
compensatable by the operation of s 32(5)(a) of the Act, the Appellant had discharged
the onus of proof of having established that management action with regards to the
disciplinary processes on 17 and 23 July 2013 was in both instances reasonable and
taken in a reasonable way.
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Orders
[296] I make the following orders:
the Appeal is upheld;
the decision of Simon Blackwood (Workers' Compensation Regulator) of
17 October 2013 is set aside with the claim not being one for
compensation; and
the Appellant is entitled to costs of and incidental to this Appeal. The
parties are directed to confer on the matter of costs and failing agreement,
to be subject of a further application to the Commission.
[297] I order accordingly.
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Official source: https://www.sclqld.org.au/caselaw/QIRC/2015/080