Davy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 24

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Davy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 024 PARTIES: Davy, Virginia (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/215 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 10 February 2015 HEARING DATES: 20 & 21 October 2014 25 November 2014 (Respondent Submissions) 16 December 2014 (Appellant Submissions) 12 January 2015 (Submissions in Reply) MEMBER: Deputy President Swan ORDERS : 1. The Appeal is allowed. 2. The decision of the Regulator dated 23 June 2014 is set aside. 3. The Regulator is to pay the Appellant's costs of and incidental to the Appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant suffered a psychiatric injury consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood - injury suffered as a result of the humiliating and frightening nature of the sexual harassment - no history of any pre-existing psychiatric/psychological injury. CASES: Workers' Compensation and Rehabilitation Act 2003 s 32, s 550 State of Queensland (Queensland Health) v Q- COMP 2003 172 QGIG 1447 Groos v WorkCover Queensland (2000) QID 52; 165 QGIG 106 -- 1 of 28 -- 2 APPEARANCES: Mr P. de Plater, Counsel instructed by Shultz Toomey O'Brien Lawyers for the Appellant. Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Decision [1] This Appeal is made by Ms Virginia Davy against the decision made by the Regulator to reject her application for compensation for a psychological injury sustained on 13 September 2013. [2] The Appellant claims that she was sexually harassed by another worker (Mr Mullins) during the course of her casual employment as a traffic controller with Workforce International. The Appellant worked for Workforce International from May 2013 until ceasing work in January 2014. [3] It is accepted that the Appellant is a 'worker' for the purposes of s 11 of the Workers' Compensation and Rehabilitation Act 2003 Act. [4] The Appellant bears the onus of proof on the balance of probabilities1. [5] What must be established is that the Appellant sustained an injury within the meaning of s 32(1) of the Act.  Pre 29 October 2013, the Act states at s 32: 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.  Post-October 2013 the legislation was amended to: 32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if- … (b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 1 State of Queensland (Queensland Health) v Q-COMP 2003 172 QGIG 1447. -- 2 of 28 -- 3 Witnesses [6] Witnesses for the Appellant were:  Virginia Davy;  Dr Mungomery, Psychiatrist;  Karen Mullaly, Daytime Supervisor, Traffic Group Australia. [7] Witnesses for the Respondent were:  John Mullins, Area Manager, Workforce International;  Charlene Manson, National Customer Relations Manager, Workforce International;  Erron Smith, Special Projects Manager, Workforce International;  Stephen Kamo, Operations Manager, Workforce International. The Appellant's Nominated Stressors [8] The Appellant identified the following stressors: "Stressor 1 13/09/13 I was intimidated by my supervisor John Mullins, by being called away from a job I was undertaking and being directed by him to accompany him in his work vehicle. Stressor 2 13/09/13 I was further intimidated by my supervisor, John Mullins, by having to accompany him alone in his work vehicle. Stressor 3 13/09/13 I was further intimidated by my supervisor, John Mullins, by not being given any clear instructions as to what I was to specifically do nor where I was to undertake my duties, other than being told that monitoring was like going for a Sunday drive and that I was to sit back and relax and enjoy the scenery. Stressor 4 13/09/13 I was further intimidated by my supervisor, John Mullins, when he drove past the turn off to Ubobo and when I told him that he had missed the turn off he replied that he knew but that he had something else in mind and asked me again if I wanted to go monitoring which was like going for a Sunday drive which you get paid for and when I agreed he told me to relax. -- 3 of 28 -- 4 Stressor 5 13/09/13 I felt intimidated, uncomfortable and nervous being alone with my supervisor, John Mullins, in his work vehicle in isolated locations when on not less than two occasions he told me to relax. Stressor 6 13/09/13 I was further intimidated by my supervisor, John Mullins, when he, without reason or explanation, turned into the caravan park at Calliope. Stressor 7 13/09/13 I felt intimidated and sexually harassed by my supervisor, John Mullins, when I was alone with him in his work vehicle and after I asked him what he was doing after he had turned into the caravan park at Calliope he said that he was booking "us" a caravan for the night because I like to "party" after which he enquired whether I liked to "party". Stressor 8 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after I responded firmly in the negative to the enquiry about my liking to "party", he stopped his work vehicle and left it to enter the office of the caravan park at Calliope. Stressor 9 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he returned to his work vehicle in which I was seated and told me that the office of the caravan park at Calliope was closed, I asked him what was going on and without answering me, he began to slowly drive around the caravan park looking at caravans. Stressor 10 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he began to slowly drive around the caravan park looking at caravans and I asked what he was doing, he said that he was looking for an empty caravan so "we could party". Stressor 11 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after I pointed out a lady walking towards a caravan with one of the employer's vehicles parked outside, he told me that "this will do" and he pulled up outside what appeared to be an empty caravan. -- 4 of 28 -- 5 Stressor 12 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he pulled up outside what appeared to be an empty caravan, he told me that seeing as though I didn't want to 'party', I was to go monitoring in the employer's vehicle. Stressor 13 immediately after 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, as he had a set of keys to a shared house in which I resided. Stressor 14 between 13/09/13 and 3/10/13 I felt further intimidated, angry and upset by reason of no action being advised to me after receipt of my written complaint of the events of 13/09/13. Stressor 15 16/10/13 I felt further intimidated, angry and upset by being requested by Charlene Manson, a Manager with Workforce International, to attend a face to face meeting with John Mullins without the benefit or assistance of a support person or union representative. Stressor 16 16/10/13 I felt further intimidated, angry and upset by hearing of John Mullins' denial of and refusal to discuss the allegations made by me. Stressor 17 16/10/13 I felt further intimidated, angry and upset by being told by Ms Manson that John Mullins had not been stood down in his employment, in circumstances where Steve Kamo had told me on 4 October 2014 that Mullins had been stood down immediately, and that in any event I would work at a different site to John Mullins. Stressor 18 after 16/10/13 I felt further intimidated, angry and upset by John Mullins' refusal to participate in a mediation process. Stressor 19 16/10/13 and immediately thereafter I felt further intimidated, angry and upset by not having been offered assistance through the employee assistance program. -- 5 of 28 -- 6 Stressor 20 03/01/14 After having been offered work at Seventeen Seventy on 31/12/13, I felt further intimidated, angry and upset by John Watson when he informed me that John Mullins would be leading hand on the job in Seventeen Seventy." Primary issues in contention [9] These points have been raised by the Respondent as being the matters to be determined by the Commission.  Did the Appellant sustain a work related injury within the meaning of s 32(1) of the Act?  Is the injury an aggravation of a pre-existing psychiatric or psychological condition?  Did the injury arise out of, or in the course of the Appellant's employment?  Is the claim excluded by operation of s 32(5) of the Act as arising out of, or in the course of reasonable management action taken in a reasonable way in connection with the Appellant's employment?  The Respondent questions whether the Appellant sustained a genuine psychiatric or psychological injury from the events of 13 September 2013. The Respondent queries whether a 'manufactured claim' has been made by the Appellant.  The Appellant claims that the injury suffered by her occurred on 13 September 2013 and did not arise out of management action. The exclusionary provisions contained in s 32(5)(a) of the Act have no application. Background to Appellant's Claim [10] The Appellant undertook traffic control training, secured a job with Traffic Group Australia and was offered work in Biloela. [11] The Appellant relocated to Biloela and moved into shared accommodation. It was at a barbeque at that accommodation that the Appellant first met Mr Mullins. [12] Mr Mullins had undertaken some of his office work at those premises and occasionally slept in Mr Carseldine's room when he was away. The Appellant said that, on one occasion, Mr Mullins had asked if he could sleep in her bed, to which she said "I don't think so" [T1-8]. That exchange is not relied upon as a Stressor and the Appellant said she suffered no injury from that. However, it is submitted that the exchange does set the scene for events which followed. -- 6 of 28 -- 7 [13] On 13 September 2013, the Appellant was assigned to a culvert cleaning crew that was operating in an area approximately one hour out of Biloela. The Appellant worked with that crew for about two hours and then transferred to work on a line marking job site. She had been driven there by Mr Mullins and when work finished on that site, the employees got together and then finished work for the day. The Appellant put her belongings into Mr Rankin's car expecting to go back to the shared house. However, she was then told to put her belongings into Mr Mullins' car as she was going to go with him [T-22, 23]. [14] Mr Mullins' evidence was that he wished to show some kindness to the Appellant and that as a 'special gesture' he would permit the Appellant to take a vehicle and go monitoring. [15] The Appellant states that an event occurred on 13 September 2013 concerning Mr Mullins and alleged approaches he had made to her of a sexual nature. [16] To this end, the Appellant wrote in her diary on 13 September 2013, the following: "12:18 John Mullins made me feel very uncomfortable and unsafe with sexual comments and insinuating a sexual encounter at Calliope Caravan Park. I feel this behavior to be very inappropriate for anyone. I called Karen M for support." [17] The Appellant had sent a number of Facebook messages to her colleague Ms Mullaly, Daytime Supervisor for the employer, on 13 September 2013. These contained, inter alia, the following commentary: "Got hit on by my boss big time … it is a good case for sexual harassment … I just can't believe it." "… it's like the worst day ever, even now I really don't want to type about it I need someone to talk to." ”I will send you what I sent to my son, it is brief but explain…He made me feel very uncomfortable and I just froze with fear as I don't know this guy." [18] On 21 September 2013, the Appellant filed an Incident Report to Ms Mullaly by way of an e-mail which stated the following: "I am reporting a incident of sexual harassment that occurred on Friday the 13th September 2013 at approximately 1200pm. After finishing a job near Calliope on a line marking site I believed I was going back to Biloela as I was called away from another job with team leader Ed MacDonald to fill in as the line marking crew was short three traffic controllers, however I was directed by John Mullins to hop into his work ute as he has something else for me to do. Proceeding in the work ute John Mullins asked if I minded going monitoring. I had replied no I don't mind what was involved with the monitoring job, I also knew some aspects of the position that it was a round trip and given that we were heading towards Calliope that Ubobo would be the first turn heading to Monto/Delulu and then the Dawson. -- 7 of 28 -- 8 Passing the Ubobo turn off I pointed out to John Mullins that he had missed the turn off, and he replied he knew but has something else in mind and asked me again if I would like to go monitoring it's like a Sunday drive and you get paid for it, I again said OK, then he said then relax. I couldn't relax as I was very nervous and felt very uncomfortable as I knew he had missed the turn off and had no idea as to what was going on, only to arrive in Calliope then he took the second left turn towards a caravan park, as he turned into the caravan park I felt more un at ease and asked what is he doing here? He said I am booking a caravan for the night, you like to party don't you I figure you like to party. Immediately, I responded with a firm no I don't like to party and what are we doing here, John then said oh you've already asked that I am just going in here meaning the caravan office, at this point I froze with fear as I really couldn't believe what was going on. On John returning to the work ute he said the office is closed and I again nervously asked him what is going on thinking this is wrong being my supervisor and trying to understand the situation. John had proceeded once back in the vehicle to drive into the caravan park and was looking aimlessly around the park. I then asked what are you looking for? He said an empty caravan you know so we can party, again I said I don't party. At this point I thought I had to get out of this by getting someone's attention and saw a lady walking to a caravan and pointed this out to John and immediately he said there we go this will do, as I looked there was a caravan that appeared empty and had a TGA work ute beside it, John Mullins said on pulling up well seeing you don't want to party I was to go monitoring in the TGA ute. I felt totally ill at ease about this incident, I feel it is inappropriate behavior and is unacceptable and I am very angry about the whole situation. I believe there is something seriously wrong with John Mullins, however I am not of a background to give professional diagnosis, it scares me to even think of any other female being in the same situation and believe I am not the only one. I am troubled by this sort of behavior as it appears to me that John Mullins had premeditated all events, his behavior is sickening to me and I don't feel safe in my workplace in particular given I were to be on my own or requested to travel with John Mullins. I am also concerned that John Mullins has a house key to a shared house I reside in, it just sickens me. I have done nothing to make John Mullins think or believe that he could act this way around myself, he has acted totally out of disrespect for me and given that I am putting this forward to file only as I feel also I would have no support and will lose my job, however would hope that being on file and given that there be another complaint that this incident can be put forward to support it. I have spoken to my team leader at present Ed MacDonald about this incident and he has supported me and has acknowledged that if I don't feel safe with anyone whilst I am on his crew that I am to let him know, and at present I feel safe with knowing someone is watching out for me, but given the industry, I believe I am going to have to be very cautious, which I feel is a very unfair situation. Regards, Virginia Davy 21/09/2013" [Exhibit 2]. -- 8 of 28 -- 9 [19] The Appellant asserted that during the early part of her drive with Mr Mullins she had initiated a conversation with him by asking him about his attempt to give up smoking. She said he told her that he was now going to the gym and that it was better than sex, because he didn't get any sex at home. [20] The Appellant did not include this as a Stressor because Mr Mullins had not made, at this stage, any untoward proposals to her. Again, it is submitted that this comment about sex and his prior comment about sleeping in her bed should be viewed as examples of the scene being set by Mr Mullins which revolved around sexual matters. [21] The Respondent asked the Appellant why she had not included this commentary of Mr Mullins in her diary. The Appellant's response to this was that she was very 'stressed' at the time [T1-55]. As well, she stated that she was "very angry and anxious and I just wrote whatever came straight to mind of the incident" [T1-56]. In any event, the Appellant said she had not relied upon that issue with Mr Mullins as a Stressor because at that stage he had not made any propositions to her of a sexual nature. [22] The Appellant had been told that there was no work for her on 2 October 2013 and was notified of this via text message from Mr Mullins. The Appellant said that this had been the first time Mr Mullins had told her that there was no work. [23] The Appellant said that this had made her feel angry and humiliated [T1-31]. The Appellant then determined to pack her belongings and return back to her home in Brisbane. The Appellant was then offered work by the employer in Chinchilla which she accepted and where she remained for about two months. [24] The Appellant and Mr Kamo made contact on 4 October 2013 and he advised her that he had read her Incident Report. The Appellant also attended a meeting with Mr Crane and Ms Manson in Brisbane to discuss these issues. [25] At that meeting, the Appellant was asked to partake in mediation with Mr Mullins, however this never occurred [T1-34]. The Appellant consented to this process but Mr Mullins refused to enter into mediation with her. [26] After December 2013, the Appellant was also offered work at 1770 but she declined to take up the offer. This occurred because she had been told that Mr Mullins would be at that site as a leading hand. After that the Appellant performed some special project jobs in Brisbane - i.e. washing the work utes etc. After taking a position at Archerfield in Brisbane, the Appellant did not wish to work in traffic control any more. The Archerfield job entailed a 14 hour day, with travelling to and from the job added to that time. Medical Evidence [27] The Respondent asked the Appellant about her work in 2011 when she had been working at the Redcliffe Hospital. The Appellant had consulted with Dr Meyer on 17 February 2011 where he has stated: -- 9 of 28 -- 10 "Major issues at work. Went back to work Monday. Felt harassed. Went home on Tuesday. Rang in sick yesterday. Has felt bullied this am. Was told she had no rights. Felt there was no communication. [28] The Appellant had made a WorkCover claim at that time and Dr Meyer had reported that: "Has work issues with other people, say she is bullying radiographers, wardspersons. And has complained about management. Went above her to management. Is not entitled to further progress at work but it is a battle to hold her own. Wardsmen had complained about her roster. She has been harassed. Gets sworn at." [29] Further references were made by the Respondent to visits the Appellant had held with Dr Meyer and Dr Milad during 2011 and 2012. The Appellant agreed that she was seeing both a Psychologist and a Psychiatrist during 2012. It was accepted that Dr Mungomery had provided incorrect dates in his Report stating that the Appellant had visited a Psychologist in 2013 when it should have been 2012. [30] The only direct medical evidence given was that of Dr Mungomery (Consultant Psychiatrist) who was called by the Appellant. Dr Meyer's medical notes were admitted into evidence without Dr Meyer giving direct evidence to the Commission. [31] Dr Mungomery interviewed the Appellant on 21 August 2014. [32] In Dr Mungomery's Report he stated that the Appellant suffered a psychiatric injury as a result of a work related incident on 13 September 2013. This injury was consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Mungomery said that the Appellant would have suffered this injury as a consequence of the "humiliating and frightening nature of the sexual harassment and associated sense of overwhelming fear and helplessness" [Exhibit 6]. [33] Dr Mungomery, having considered the Appellant's medical history, determined that she was not suffering from a pre-existing psychiatric/psychological injury. [34] Dr Mungomery also stated that it was not uncommon for women who had been the subject of sexual assault to not report the incident at that time. The fact that the Appellant had not sought treatment for some time, in his view, did not "minimize the psychological impact" [T1-95]. [35] The Appellant as well as Dr Mungomery gave evidence of her medical history. There were admissions made by Dr Mungomery that some parts of his medical record (as it related to dates etc.) had been incorrectly recorded and those amendments were made. Appellant Witness [36] The last witness called by the Appellant was Ms Mullaly. [37] Ms Mullaly's evidence was that she had received the Appellant's e-mail (to which earlier reference has been made) on 21 September 2013. Ms Mullaly said she had -- 10 of 28 -- 11 not done anything further until she had heard from the Appellant to see if she wanted to proceed with the complaint [T2-6]. [38] Ms Mullaly said she had sent the Appellant's email [Exhibit 2] to management on 1 October 2013 after confirmation from the Appellant that this was what she had asked her to do. Ms Mullaly said she passed the Appellant's email on to her 'superiors' - Mr Cerde and she believed that he had shown it to Mr Alex Crane. She had understood Mr Crane to be the Manager. The Respondent's evidence [39] Mr Mullins gave the following evidence: a) At the time relevant to these proceedings, Mr Mullins was employed by Workforce International Group Pty Ltd as the team leader Special Projects Department for the Traffic Road Services Division. b) He was the Manager, at that time, for approximately 55 employees. Those persons were traffic controllers. c) Although he lived in Gladstone, he was required to attend Biloela on regular occasions. On some occasions Mr Mullins stayed in the share accommodation where the Appellant resided. d) Social gatherings of the Biloela staff were common and mostly involved people having a couple of drinks after work at the house. e) He stated that he had communicated with the Appellant on occasions when she had complained of a conspiracy against her by other workers, her house mates and her supervisor, Mr Carseldine [Exhibit 4]. He said the Appellant believed that everyone staying at the shared accommodation wanted her to leave the house. f) Mr Mullins, being conscious of those concerns expressed by the Appellant, saw his role as attempting to 'ease her mind' about these perceived conspiracies and convince her that people were not out to get her [T2-12]. g) Mr Mullins' written response to the allegations made by the Appellant is contained in Exhibit 9 and is represented hereunder. h) Mr Mullins denied that he had ever asked the Appellant and another female employee if he could share their beds. He said this would be "professional and matrimonial suicide" [T2-12]. i) On the day of 13 September 2013, Mr Mullins said he had been trying to be kind to the Appellant so he drove around that day in an air- conditioned car and "made a special gesture and I asked her would she like to be the monitor for the day" [T2-12]. -- 11 of 28 -- 12 j) Mr Mullins did not recall whether he had told the Appellant that he had to go and pick up a company ute at the Calliope Caravan Park. k) He stated that it would have been irrational for him to have taken the Appellant around in his car all day without the Appellant doing some monitoring work herself [2-14]. l) Mr Mullins stated that he had never been to a gym and would not have discussed that with the Appellant, nor did he make any comment about his sex life at home [T2-14]. m) Mr Mullins did not recall the Appellant saying anything when he drove past the turn off to Ubobo. n) When Mr Mullins and the Appellant arrived at the Calliope Caravan Park he visited the Office first to try to find out where the vehicle might be found, but the Office was closed. He said they drove around and located the vehicle fairly quickly. He said that when the Appellant got out of the car she thanked him for giving her the job. He did recall the Appellant also looking for the vehicle along with him [T2-15]. o) Mr Mullins denied that he had told the Appellant that he was trying to book a caravan for the night so that they could 'party'. p) After the 13 September 2013, Mr Mullins said he had spoken with the Appellant but she had never raised any issues concerning that day. q) Mr Mullins recalled texting the Appellant on 1 October 2013 and advising her that there was no work for the next day. He said that this was normal practice as on occasions there was no work to perform [T2- 17]. Mr Mullins said he had not told the Appellant that she would not be rostered on for work in the future. r) Mr Mullins said he was contacted about the Appellant's complaints by Mr Alex Crane and Charlene Manson. He advised them that he was not prepared to enter into mediation with the Appellant because her version of events was malicious [T2-18]. Mr Mullins said at this time he was on probation for six months and his probationary period was extended. However, he remained angry with the employer because he thought the extension was required because of the Appellant's complaints. s) Around January 2014, Mr Mullins' employment ended. This had occurred because he said that he hadn't been pleased with the manner in which the employer had handled the issue with the Appellant and the hours he was working were too long [T2-19]. He has since recommenced work with the employer as a casual traffic controller. [40] Ms Manson's evidence was as follows: -- 12 of 28 -- 13 a. Ms Manson is employed by the employer as the National Customer Relations Manager and she undertakes a Human Resources function as well. b. Ms Manson first heard about the Appellant from Mr Erron Smith who is the Special Projects Manager of a division of Workforce International. c. Ms Manson confirmed that she had been forwarded the e-mail written by the Appellant which had been sent to Ms Mullaly [Exhibit 2]. d. Ms Manson said she had a conversation with the Appellant whom she thought sounded confused as she said she wasn't aware that Ms Mullaly had passed her email on to management. Ms Manson also had confirmed that a work vehicle had been left at the Calliope Caravan Park. e. Ms Manson determined to speak to both the Appellant and Mr Mullins. Exhibit 12 details the notes taken by Ms Manson from that meeting. Mr Mullins had not turned up for the meeting as his vehicle had broken down. f. At the next meeting, Mr Crane was also present. Ms Manson's notes state, inter alia, the following: "That John did not appear to have given clear instruction to Virginia re where they were heading to collect vehicle (e.g. Caravan Park)" "I later discussed these issues with the Manager and advised him to re (issue) our company code of ethics." "As John did not want to discuss anything I could not come to a final conclusion". "John did not wish to mediate." "I advised John that he would have to be stood down until my discussion with his immediate Manager and we worked out a suitable arrangement for both Virginia and John" [Exhibit 12]. g. Other than for the proposed mediation between the Appellant and Mr Mullins, Ms Manson said some operational issues had been discussed concerning Mr Mullins. To that end, the employer determined to extend Mr Mullin's period of probation. h. While Mr Mullins eventually agreed that he would not have a problem with the Appellant returning to the job site, Ms Manson said she had not agreed with that course and thought it was better to send them to two different sites. The Appellant was agreeable to going to a different site. i. Ms Manson said as there were no witnesses to the event complained of by the Appellant, she was unable to find that Mr Mullins had done what he was accused of and she also could not disregard the complaint made by the Appellant [T2-46]. -- 13 of 28 -- 14 j. A decision had been made with management to visit the worksite in Biloela and interview all relevant persons concerning the Appellant's complaints. k. Ms Manson agreed that the employer had in place appropriate policies concerning workplace matters which consider workplace behavior and grievances. All employees had access to those Policies on the Intranet. The policies submitted to the Commission were those which had been issued after the event - on 19 September 2013. l. Ms Manson said that the Appellant had then worked on another site and Mr Mullins went back to the original site. m. In terms of Exhibit 10, Ms Manson said that Mr Mullins did not have his probation extended because of the Appellant's claim of sexual harassment on his part. n. The next occasion when Ms Manson heard from the Appellant is when she had called to say that Mr Mullins ended up on the same site to which she had been assigned. Ms Manson said that if both employees could work together, then that would be appropriate, but this was not the case on the part of the Appellant. o. After contacting Mr Kamo, Ms Manson said she believed that he had spoken to the Appellant. [41] Mr Smith's evidence was as follows: a. Mr Smith is the Special Projects Manager for the employer. b. Mr Smith's first involvement with the Appellant was when Mr Craig had forwarded to him the email which the Appellant had sent to Ms Mullaly. c. At the time, Mr Smith said he thought they should stand Mr Mullins down until they heard the full story. However, Mr Mullins was not stood down from work. d. He and Mr Kamo went to Gladstone and interviewed Mr Mullins. He denied all accusations. He said he had relied upon his statement. e. Both men travelled around the sites to see if there had been other complaints or commentary in a similar vein to that being made by the Appellant. They said this did not occur. f. The outcome of investigations was that Mr Mullins was to work in one area and the Appellant in another. g. He stated that the lengthening of the probation period for Mr Mullins was not related to the complaints made by the Appellant. [42] Mr Kamo's evidence was as follows: -- 14 of 28 -- 15 a. Mr Kamo is the Operations Manager with Workforce International Group of companies. b. Upon hearing of the Appellant's claim, he and Mr Smith travelled to Gladstone. c. Mr Kamo reiterated previous evidence given by Mr Smith to the effect that Mr Mullins denied all claims made by the Appellant and that there had been no commentary amongst employees they met concerning the type of allegations made by the Appellant. Consideration of the Evidence and Findings [43] I have found that the Appellant did suffer an injury on 13 September 2013. [44] That injury is described by Dr Mungomery as being consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood with some post trauma features. "Ms Davy would be considered to have sustained this psychiatric injury due to the humiliating and frightening nature of the sexual harassment and associated sense of overwhelming fear and helplessness. This psychiatric injury would not be considered an aggravation of a pre- existing psychiatric condition. While noting some vulnerability factors associated with a past history of depression and anxiety and some personality traits in the avoidant spectrum she would not be considered to have presented with any clinically significant psychiatric impairment prior to the work-related incident of 13 September 2013." [Exhibit 6]. [45] Dr Mungomery relied upon the medical records of Dr Meyer and the history given to him, by the Appellant in forming his opinion. Dr Mungomery's opinion has been cited in paragraphs 30, 31, 32, 33 and 34. [46] Dr Mungomery was firm in his evidence that the Appellant was not suffering from a pre-existing injury prior to the events of 13 September 2013. [47] There is no other specialist medical evidence to weigh Dr Mungomery's opinion against. Whether or not a person suffers an injury is a question of fact which usually is determined by medical evidence. After the facts of the situation are known, the determination as to whether or not it is established that a person has suffered an injury pursuant to s 32 of the Act is a matter of law. In Groos v WorkCover2, President Hall stated that "considering 'injury' within the context of the Act is a question of mixed fact and laws on which medical evidence is often helpful but not necessarily decisive." [48] In the circumstances of this matter, I have found that I have accepted Dr Mungomery's diagnosis of the Appellant's injury and the reasons as to why the Appellant determined not to discuss the matter. 2 Groos v WorkCover Queensland (2000) QID 52; 165 QGIG 106. -- 15 of 28 -- 16 [49] In forming that view, I have also taken into account the fact that the Appellant continued to work for a few months with the employer in another location and that she was distressed to ultimately find that the employer was going to relocate her to a job site where Mr Mullins was to be the supervisor. [50] The Appellant in my view, was an open forthright and truthful witness in the giving of her evidence. She was consistent throughout cross-examination and particularly so on the question of whether or not she had seen a psychologist, Ms Adams. It was ultimately established that Ms Adams had not seen any private clients since November 2011. [51] The Appellant had recorded the events of 13 September 2013 in brief, but sufficient terms on Facebook, in her diary and to Ms Mullaly. These comments (i.e. Facebook and the diary entry) were made when she had returned from the workplace on 13 September 2013. The longer e-mail [Exhibit 2] was made on 21 September 2013. In those communications, the Appellant spoke of being "frozen with fear" as a consequence of Mr Mullins' behaviour towards her. [52] In my view it was telling and favourable to the Appellant that she was prepared to participate in a face to face meeting with Mr Mullins and also to enter into mediation with him and that Mr Mullins would not. [53] The fact that she did all of this does not of necessity mean that everything she had stated had to be true, but it does go to the question of her credibility and her account of events at a later stage. Contrary to the Respondent's submissions she has recorded her events of that day sufficiently to appreciate that she was left feeling very anxious about the events of that day with Mr Mullins. [54] I did not find Mr Mullins a credible witness. I found that he over-exaggerated some of his responses and that his vagueness in terms of that day on relevant points was disingenuous. The Appellant pointed to some examples of this, such as answering questions with questions and rather than simply denying some allegations he provided a range of answers. "Well I suggest that did happen and you were told by Ms Davy that it wouldn't happen. Has Mel said something? I'll ask the questions and you answer them [T2-25]." "But the conversation included, with her asking you about how you were going about giving up smoking? I have no recall about that whatsoever. But that's certainly possible because … Anything's possible. Well it's possible in the sense that you were a smoker and you were endeavouring to give up and it might be something that staff know about that might be - it might be a topic of conversation between you and Ms Davy? It is possible, like talking about the yeti [T2-29]." -- 16 of 28 -- 17 "All right. So I'm just saying the likelihood is that it's a conversation that may occur between her and you at about that time? I can't rule it out. In September 2013? It's possible. All right. And in response to that, when she asked you about the smoking, whether you'd been to a gym ever in your life or not, you said to her that you were going to a gym and that's what you said? No I didn't. I don't like gyms. I didn't ask whether you liked gyms, whether you said to her you were going to a gym? What, and let her know that I'm an egg? I am sorry? And let her know that I'm an egg? [T2-29]. [55] "The Appellant referred to three particular passages that particularly highlight the difficulty with Mr Mullins' evidence. First, when it was put to him that he had also asked a female resident of the shared accommodation, Mel, if he could sleep in her bed, his answer "Has Mel said something?" [T2-25], was an odd denial. Secondly, even though he said that he had never asked the Appellant if he could sleep in her bed (during his denial he said "My boss was there"), it is curious that he focused on a particular evening when his boss, identified as Steve Kamo was present. Given that BBQs were held every two or three weeks and it seems that Steve Kamo was probably only present at one of them. And thirdly, in his evidence in chief, he said that he was supposed to do monitoring on 13 September 2013 [T2-12]. This is quite consistent with the Appellant's evidence, that up until after the time that she was sexually harassed by Mr Mullins, it was her understanding that she would be monitoring with him and not on her own." [Appellant's Submissions Point 23]. [56] I have accepted that those examples are, amongst other things disingenuous. Consideration of Stressors 1 and 2. [57] Stressor 1 13/09/13 I was intimidated by my supervisor John Mullins, by being called away from a job I was undertaking and being directed by him to accompany him in his work vehicle. Stressor 2 13/09/13 I was further intimidated by my supervisor, John Mullins, by having to accompany him alone in his work vehicle. The Appellant has nominated Stressors 1 and 2 because of the Appellant's apprehension at being called away from her normal duties to accompany Mr Mullins in his car without any real explanation. Given that I have found that Mr Mullins did not explain much to the Appellant about why this had occurred (and that the little he did explain was vague and flippant), I accept that the apprehension was genuine on her part. -- 17 of 28 -- 18 Consideration of Stressor 3 [58] Stressor 3 13/09/13 I was further intimidated by my supervisor, John Mullins, by not being given any clear instructions as to what I was to specifically do nor where I was to undertake my duties, other than being told that monitoring was like going for a Sunday drive and that I was to sit back and relax and enjoy the scenery. For reasons cited earlier, I have accepted that the lack of any clear instructions on Mr Mullins' part had the potential to cause the Appellant anxiety when added with the comments made by Mr Mullins to the effect that monitoring was like going for a Sunday drive for which one got paid and that all the Appellant had to do was relax. Mr Mullins' evidence was that he had told the Appellant that she was going to be monitoring and that at all times she was aware of that. The Appellant said this conversation did not occur and if he had, before she had gone with Mr Mullins in his car, she would have insisted on taking her glasses with her as she needed them for driving. Consideration of Stressors 4 and 5 [59] Stressor 4 13/09/13 I was further intimidated by my supervisor, John Mullins, when he drove past the turn off to Ubobo and when I told him that he had missed the turn off he replied that he knew but that he had something else in mind and asked me again if I wanted to go monitoring which was like going for a Sunday drive which you get paid for and when I agreed he told me to relax. Stressor 5 13/09/13 I felt intimidated, uncomfortable and nervous being alone with my supervisor, John Mullins, in his work vehicle in isolated locations when on not less than two occasions he told me to relax. When Mr Mullins had not turned off at the anticipated exit on the road, it is reasonable to accept that the Appellant might have felt anxious or intimidated at not being told by Mr Mullins why he had done this. The Appellant's evidence was that when questioned by her, he responded that he had something else in mind but did not tell her what it was. Mr Mullins' evidence was that the Appellant had said nothing to him when he turned off at that road exit. I have accepted that the Appellant did not know what was going on and that she would have been anxious about the situation. -- 18 of 28 -- 19 The Appellant's evidence was that on two occasions, whilst driving in the car with Mr Mullins, he had told her to relax, without sharing other information with her. She said she had felt uncomfortable and intimidated in this situation. Her complaint was that this occurred whilst she was in his work vehicle in isolated locations and he told her twice to 'relax'. I prefer the Appellant's evidence on this point. Mr Mullins could not recall telling the Appellant where they were going in his car. Consideration of Stressor 6 [60] Stressor 6 13/09/13 I was further intimidated by my supervisor, John Mullins, when he, without reason or explanation, turned into the caravan park at Calliope. I have accepted the Appellant's evidence with regard to this Stressor. Mr Mullins' evidence is that he could not recall telling the Appellant why he had taken the Calliope exit and why he was going to the Calliope Caravan Park. For reasons previously given, there is no plausible reason why Mr Mullins had not discussed what he was doing on that day with the Appellant in his car. His lack of memory as to whether he told the Appellant or not what he was doing and why he was doing it, is disingenuous. That, without explanation, Mr Mullins turned the car into the Calliope Caravan Park would have the real potential to cause any person in the car (particularly so in this case a female who is the subordinate of Mr Mullins) genuine concern. The Appellant had said "I asked again what are we doing here he then said looking for an empty caravan, at this point I didn’t know what to think, then he kept driving and said oh this one will do here we are". By this time, the Appellant said she was anxious, nervous and scared (T1-25, 4-13) and overwhelmed with fear of losing her job and making a mistake (T1-64, T1-65). In his evidence Mr Mullins describes the events of 13 September 2013 as: "We had a big team out close to Calliope, a team of six or seven and I was driving through doing the inspection. I was informed by the team leader that we were short one TC and so I filled in as a TC for a number of hours. I was supposed to be doing the monitoring, but due - I had - that commitment, I had to rearrange my priorities and the job finished and I thought I had to get - retrieve a car from the Calliope Caravan Park that had been abandoned there and I now had some staff to do the rostering to free me up so I could do my job and I'd been meaning to show some kindness to Virginia, you know, to put her mind - at rest and so - and it's a nice easy job, you know you just drive around all day in air conditioning and all the TCs covert it and we don't normally give it to anyone below team leader. So I just made a special gesture and I asked her would she like to be the monitor for the day." Mr Mullins' evidence on this point is that he had not recalled telling the Appellant that he had to go to the Calliope Caravan Park to pick up the work ute. -- 19 of 28 -- 20 I prefer the Appellant's evidence on this point. Given that Mr Mullins had in mind that the Appellant was to 'monitor' on that day and that his reason for going to the Calliope Caravan Park was integral to what he required her to do on that day (i.e. drive the ute parked at the Caravan Park), coupled with the fact that he had no recall of advising the Appellant of this, leads me to the conclusion that his behaviour and failure to explain to her what was happening was inappropriate and questionable. I have accepted that this Stressor was a cause of considerable concern to the Appellant. The Appellant has used the term "intimidated" and in the circumstances, I have accepted that she had reason to feel this way. In Exhibit 10 the employer detailed its concerns about Mr Mullins' performance, including the following: "John Mullins Dear John, Re: Notice of Probationary Period Extension This letter is to notify you of my intent to extend your probationary period for a further 3 months. The reasons for this extension are:  …  Not explaining and giving clear instruction regarding jobs;  … This extension will provide you additional time to perform the full range of responsibilities and demonstrate your ability to more fully and consistently meet outlined expectations for this position." When asked by the Respondent what instructions if any, Mr Mullins had given to Ms Davy, Ms Manson said, "I think I did. I can't remember exactly. I would have asked him - I'm not sure that he gave her clear instructions. That's - was my concern of the operational issues, yes." Consideration of Stressor 7 [61] Stressor 7 13/09/13 I felt intimidated and sexually harassed by my supervisor, John Mullins, when I was alone with him in his work vehicle and after I asked him what he was doing after he had turned into the caravan park at Calliope he said that he was booking "us" a caravan for the night because I like to "party" after which he enquired whether I liked to "party". This Stressor relates to the alleged comments made by Mr Mullins after he had driven the car into the Calliope Caravan Park to the effect that he was looking for a vacant caravan for the night for 'us' because the Appellant 'liked to party' and then further enquiring as to whether the Appellant 'liked to party'. -- 20 of 28 -- 21 The Appellant was adamant that she told Mr Mullins that she was not interested in his suggestion at all. I have preferred the evidence of the Appellant with regard to this Stressor. In doing so, I have taken into account the following factors:  To determine this point it must be noted that there were no other witnesses to this event in the Caravan Park. It is, in effect, the case of the Appellant's word against that of Mr Mullins.  Any corroborative evidence which might have been given to assist in making the decision.  The presence, demeanor and believability of both witnesses while giving their evidence. Evidence supportive of the Appellant's claim was produced by the Appellant in Exhibit 7 (these are the Facebook messages sent by the Appellant to Ms Mullaly). This Exhibit refers to the Appellant's reaction to the events of 13 September 2013. It represents a complaint/concern made to Ms Mullaly as soon as practicable after the event complained of. The Appellant said amongst other things that she had been frozen 'with fear' [see paragraph 26]. Exhibit 2 is the email to Ms Mullaly from the Appellant which is referenced in paragraph 26. A consideration of these factors relate more to the question of the Appellant's credibility when taking into account the direct evidence given by her in the Commission. I have also taken into account the evidence produced by Mr Mullins where he stated that there was a work ute to be picked up from the Caravan Park, thereby giving him a legitimate reason to be there. I have accepted that the Appellant did ask Mr Mullins why he was driving around the Caravan Park (when the office had been closed) and that he responded that he was looking for an empty caravan so that "we can party". To each of these suggestions, I have accepted the Appellant's evidence that she told him that she definitely did not want to do that. I have also taken into account the evidence of both the Appellant and Mr Mullins when the ute was finally located. There was no evidence from Mr Mullins that he had explained to the Appellant the type of work he had intended her to perform. He did say it was 'monitoring' work, but to someone who had not done that previously, that information would be insufficient. I have preferred the evidence given by the Appellant. Mr Mullins' lack of memory of that day and whether or not he advised the Appellant why he had taken a detour via Calliope and into the Calliope Caravan Park is not believable. I have not -- 21 of 28 -- 22 accepted that it was a case of omission on his part, that he did not explain things to the Appellant, but rather that he had chosen not to tell her what was going on. By the time the car driven by Mr Mullins had arrived at the Calliope Caravan Park, I have accepted that the Appellant felt intimidated and anxious. Consideration of Stressors 8, 9 and 10 [62] Stressor 8 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after I responded firmly in the negative to the enquiry about my liking to "party", he stopped his work vehicle and left it to enter the office of the caravan park at Calliope. Stressor 9 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he returned to his work vehicle in which I was seated and told me that the office of the caravan park at Calliope was closed, I asked him what was going on and without answering me, he began to slowly drive around the caravan park looking at caravans. Stressor 10 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he began to slowly drive around the caravan park looking at caravans and I asked what he was doing, he said that he was looking for an empty caravan so "we could party". These Stressors primarily relate to the period of time at the Caravan Park. Stressor 8 related to when Mr Mullins, after having been told by the Appellant that she did not like to or want to 'party', stopped at the office of the Caravan Park. Stressor 9 relates to when Mr Mullins returned to the vehicle and drove slowly around the Caravan Park without advising the Appellant of what he was doing. Mr Mullins' response to this was as follows: "I believe I went to the office to try and find out exactly where the van - just to save time - it is not a big place, but, you know, I was just trying to save time to get to this vehicle and get Virginia out - out of the car, so I would get on with my job. I was rather keen to get my duties done because I'd been working all morning doing other stuff and I was behind in my schedule, so I just wanted to - wanted to get the monitoring done, so - and - but the office was closed. We drove around, located the vehicle pretty quickly. When she got out of the vehicle, she expressed nothing to me, apart maybe thanking me for giving her the job. There's certainly nothing untoward expressed about anything. I was completely oblivious if she was feeling any way other than happy." I have not accepted Mr Mullins' account of events. His behaviour on that day had caused the Appellant considerable distress, anxiety and fear. -- 22 of 28 -- 23 Consideration of Stressors 11 and 12 [63] Stressor 11 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after I pointed out a lady walking towards a caravan with one of the employer's vehicles parked outside, he told me that "this will do" and he pulled up outside what appeared to be an empty caravan. Stressor 12 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, when, after he pulled up outside what appeared to be an empty caravan, he told me that seeing as though I didn't want to 'party', I was to go monitoring in the employer's vehicle. These stressors related to when Mr Mullins stopped the car in the Caravan Park and when he pulled up outside what appeared to be an empty caravan and said that seeing that the Appellant did not want to 'party' then she could go monitoring. I have accepted that the Appellant did ask Mr Mullins why he was driving around the Caravan Park (when the office had been closed) and that he responded that he was looking for an empty caravan so that "we can party". To each of these suggestions, I have accepted the Appellant's evidence that she told him emphatically that she did not want to do that. I have also taken into account the evidence of both when the ute was finally located. There was no evidence from Mr Mullins that he had explained to the Appellant the type of work he had intended her to perform. He did say it was 'monitoring' work, but to someone who had not done that previously, that information would be insufficient. I have preferred the evidence given by the Appellant. Mr Mullins' lack of memory of that day and whether or not he advised the Appellant why he had taken a detour via Calliope and into the Calliope Caravan Park is not believable. I have not accepted that it was a case of an omission on his part or that he did not explain things to the Appellant, but rather that he had chosen not to tell her what was going on. "On any view of the evidence it was not a well-considered decision to have a relatively junior employee who had not previously been assigned to drive a work vehicle and who was without her driving glasses to undertake a task on her own that she had never done before and in a vehicle that did not contain a two way radio nor any other monitoring equipment" [Appellant's Submissions Point 50]. This submission is accepted. By the time the car driven by Mr Mullins had arrived at the Calliope Caravan Park, I have accepted that the Appellant felt intimidated and anxious. -- 23 of 28 -- 24 Consideration of Stressor 13 [64] Stressor 13 immediately after 13/09/13 I felt further intimidated and sexually harassed by my supervisor, John Mullins, as he had a set of keys to a shared house in which I resided. This Stressor related to the fact that Mr Mullins had keys to the shared house in which the Appellant lived. I accept that the Appellant felt apprehensive and anxious after her experiences with Mr Mullins on 13 September 2013. There is no evidence that Mr Mullins sought out the Appellant after that day. However, given the level of anxiety which I have accepted was experienced by the Appellant after 13 September 2013, the added apprehension that Mr Mullins might come back to the shared house in my view was not unreasonable in the circumstances. Consideration of Stressor 14 [65] Stressor 14 between 13/09/13 and 3/10/13 I felt further intimidated, angry and upset by reason of no action being advised to me after receipt of my written complaint of the events of 13/09/13. This matter has been considered in paragraph 37. I have accepted that Ms Mullaly received confirmation from the Appellant to process her Incident Report on 1 October 2013. Discussions had occurred after that date with the employer and from those discussions the employer attempted to undertake an investigatory process. The time frame in which this happened does not appear to represent an abnormal delay. Consideration of Stressor 15 [66] Stressor 15 16/10/13 I felt further intimidated, angry and upset by being requested by Charlene Manson, a Manager with Workforce International, to attend a face to face meeting with John Mullins without the benefit or assistance of a support person or union representative. Ms Davy said she was hesitant about mediation with Mr Mullins, but when told that Ms Manson and Mr Crane would be there as independent people she ultimately agreed to participate in the mediation process [T1-81]. Ms Davy may have experienced concern, but it appears from the material before me that the Appellant was ultimately content with this approach. -- 24 of 28 -- 25 Consideration of Stressor 16 [67] Stressor 16 16/10/13 I felt further intimidated, angry and upset by hearing of John Mullins' denial of and refusal to discuss the allegations made by me. In this, the Appellant says she felt intimidated, angry and upset at Mr Mullins' denial of and refusal to discuss the allegations made by her. It is accepted that the Appellant's reaction to this distressed her. Consideration of Stressor 17 and 18 [68] Stressor 17 16/10/13 I felt further intimidated, angry and upset by being told by Ms Manson that John Mullins had not been stood down in his employment, in circumstances where Steve Kamo had told me on 4 October 2014 that Mullins had been stood down immediately, and that in any event I would work at a different site to John Mullins. Stressor 18 after 16/10/13 I felt further intimidated, angry and upset by John Mullins' refusal to participate in a mediation process. These Stressors relate to the Appellant's claims that Mr Mullins did not wish to attend a meeting and discuss the issues with her and as he had not been stood down, the employer appeared to have reneged on its decision to stand Mr Mullins down. The Appellant was also distressed that Mr Mullins denied all of her allegations. These concerns are understandable in the circumstances. Consideration of Stressor 19 [69] Stressor 19 16/10/13 and immediately thereafter I felt further intimidated, angry and upset by not having been offered assistance through the employee assistance program. The evidence shows that Ms Manson said that the first time she spoke to Ms Davy she asked if she needed counseling, Ms Davy said not at the moment [T2-42]. I am unable to see any further references to this in the evidence. -- 25 of 28 -- 26 Consideration of Stressor 20 [70] Stressor 20 03/01/14 After having been offered work at Seventeen Seventy on 31/12/13, I felt further intimidated, angry and upset by John Watson when he informed me that John Mullins would be leading hand on the job in Seventeen Seventy. This Stressor related to the fact that the Appellant had been offered work at 1770 on 31 December 2013 and she was distressed to find that Mr Mullins would be working there as leading hand. It is not surprising that the Appellant was distressed at hearing this news. Respondent's identification of matters to be determined [71] The following points were raised by the Respondent as being the matters to be determined by the Commission.  Had the Appellant sustained a work related injury within the meaning of s 32(1) of the Act? Finding The Appellant did sustain an injury within the meaning of s 32(1) of the Act (prior to the amendments of October 2013). The injury is provided for by Dr Mungomery and occurred as a consequence of the events of 13 September 2013.  The Respondent has queried whether the Appellant sustained a genuine psychiatric or psychological injury from the events of 13 September 2013 or has the Appellant's claim been manufactured? Finding I have determined that the "injury" sustained by the Appellant was genuine and not a 'manufactured claim' as stated by the Respondent.  The Respondent questioned why the Appellant did not report this issue to any Medical Practitioner prior to 31 January 2014. Finding This is explained by Dr Mungomery where he stated that it was not unusual for persons affected by sexual harassment to not wish to speak about those matters even to their General Practitioner as they felt humiliated and embarrassed. Dr Mungomery further stated that because the complaint had not been made to a medical practitioner until that later date did not minimize the trauma experienced at the time. This explanation has been accepted by me as being realistic in the circumstances.  The Respondent queried why the Appellant had not documented her feelings in her diary during this period. -- 26 of 28 -- 27 Finding The evidence shows that the Appellant had documented her feelings in her diary very soon after the events of 13 September 2013 and specifically stated that she had been 'frozen with fear' at the behaviour of Mr Mullins on that day. Added to that was the extensive e-mail sent some time after the event by the Appellant to Ms Mullaly highlighting her fears regarding the events of that day.  The Respondent claimed that the Appellant was pursuing this matter for financial gain. The Respondent says this is evidenced by the Appellant saying she thought she had" a good case of sexual harassment". Finding The fact that the Appellant thought that what had occurred on 13 September 2013 might be a "good case of sexual harassment" is not indicative, in my view, that the Appellant was seeking financial gain. In fact, her perspective is borne out by the facts. I have not accepted the Respondent's view on that that point. [72] The Respondent added that, if the Commission had found that the Appellant suffered an 'injury', its further submissions were as follows:  The Respondent claimed that the Appellant had been suffering from psychological/psychiatric issues for a 'couple of years from 2011' and perhaps even until July 2013. Finding Dr Mungomery's report and evidence was clear. The Appellant had not been suffering from a pre-existing injury prior to the events of 13 September 2013 until July 2013.  The Respondent pointed to a referral letter from Dr Meyer in January 2013 for further psychological counseling. Finding Nothing came of that letter from Dr Meyer in January 2013 and it was clear that the Appellant had last sought psychological help in 2012.  Against that background the Respondent submits that these matters depend on whether there is a finding by the Commission that the Appellant's evidence is preferred to that of Mr Mullins. Finding There is a finding by the Commission that the Appellant's evidence is preferred to that of Mr Mullins.  In the alternative the Respondent submits that the Appellant's injury arose out of, or in the course of reasonable management taken in the course of reasonable management action taken in connection with the Appellant's employment. Finding This submission is rejected as it was abundantly clear that the reasonable management action factor is not activated in this case. The event causative of the Appellant's injury occurred on 13 September 2013 and management action was not a factor. That submission made by the Appellant is accepted. -- 27 of 28 -- 28 Conclusion [73] The Appeal is allowed. The decision of the Regulator dated 23 June 2014 is set aside. The Regulator is to pay the Appellant's costs of and incidental to the Appeal. [74] Order accordingly. -- 28 of 28 --