Australian Premier Products Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 169

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Premier Products Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 169 PARTIES: Australian Premier Products Pty Ltd (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/282 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 27 October 2014 HEARING DATE: 17 March 2014 18 March 2014 19 March 2014 20 June 2014 (Respondent's Written Submissions) 11 July 2014 (Appellant's Written Submissions) 25 July 2014 (Respondent's Submissions in reply) MEMBER: Deputy President Kaufman ORDERS : 1. Appeal allowed. 2. The Decision of the respondent dated 12 August 2013 is set aside. 3. Ms Fitzpatrick's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is rejected. 4. The respondents are to pay the appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury arose out of or in the course of employment - whether employment was a significant contributing factor - reasonable management action -- 1 of 12 -- 2 CASES: Workers' Compensation and Rehabilitation Act 2003 s 32(1), s 32(5) Corporations Act 2001 (Cth) State of Qld (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118 QComp and John Kennerly and Qantas Airways Ltd (C/2012/16- http://www.qirc.qld.gov.au) Kavanagh v Commonwealth (1960) 103 CLR 547 Qantas Airways Limited v Q-Comp and Michelle Blanch [2009] QIC 20 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100 WorkCover Queensland v Kehl (2002) 170 QGIG 93 Merle Prizeman v Q-COMP (2005) 180 QGIG 481 Saigen v Sanel Pty Ltd (1994) 54 IR185 APPEARANCES: Mr J.W Merrell, Counsel instructed by Aitken Legal, for the Appellant Mr P.B O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent Reasons for Decision [1] This is an appeal by Australian Premier Products Pty Ltd ("the Appellant") against a decision of the Review Unit, Q-COMP now the Workers' Compensation Regulator, Simon Blackwood (the Regulator) to confirm an earlier decision of WorkCover Queensland to accept an application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003 ("the Act") by a former employee of the company, Ms Eileen Fitzpatrick. The Appeal [2] The Appellant is a discount retailer of wine, beer and spirits, trading as Get Wines Direct. It sells its product on-line, over the telephone and through retail outlets. [3] Ms Eileen Fitzpatrick (also known as Ellie) was employed by the Appellant as a sales consultant in its Sunshine Coast office from December 2011 until October 2012, when she resigned.1 As a consultant she was mainly responsible for telephone sales from a call centre. [4] On or about 8 November 2012, Ms Fitzpatrick made an application for worker's compensation for a psychological injury allegedly sustained as a result of "being placed in a unhealthy, dangerous environment/situation". 2 1 T1-3, Lines 1-5. 2 Appeal Notice. -- 2 of 12 -- 3 [5] In her application, Ms Fitzpatrick listed a number of factors that she considered to be most significant to the injury that she suffered. These included:  (Being) placed in a dangerous position;  Isolation, betrayal and lack of support; and  Inaction, denial, harsh and irresponsible treatment. [6] This initial application was rejected. On or about 12 August 2013, the Regulator (having received an application for review from Ms Fitzpatrick) set aside the decision of WorkCover Queensland to reject her application for compensation, and substituted a new decision to accept the application in accordance with s 32 of the Act. [7] On or around 6 September 2013, the Appellant filed its notice of appeal in the Industrial Registry. I heard the matter on 17, 18 and 19 March 2014 in Maroochydore and received written submissions between 20 June and 25 July 2014. Issues for Determination in the Appeal [8] At the time of the injury, s 32 of the Act relevantly provided: "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. … (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; …" [9] There is no dispute that Ms Fitzpatrick was a worker at the relevant time, as defined in s 11 of the Act, nor that she suffered a personal injury, namely an adjustment disorder with anxiety and depressed mood.3 [10] The substantive, salient and relevant facts of this case seem to me to be of limited compass and to be largely uncontroversial. I intend to focus on the core issues. There has been much "white noise" evident in the evidence led and cross- examination of witnesses in this matter that has peripheral, if any, bearing on the matters for determination. I will accord such evidence the weight that it warrants. [11] The issues for determination, in the context of ascertaining whether Ms Fitzpatrick suffered an injury within the meaning of that word in s 32 of the Act, are: 3 T1-3, Lines 41-43 and T1-7, Lines 35-37. -- 3 of 12 -- 4 (a) did her injury arise; (i) out of; or (ii) in the course of her employment; and (iii) if so, was the employment a significant contributing factor to the injury? (b) as her injury was a psychiatric or psychological disorder, was it excised from the s 32 definition of injury by operation of s 32(5) of the Act? [12] A preliminary issue, given the facts of this case is to determine whether the Appellant was Ms Fitzpatrick's employer at the relevant time as the Regulator submits that the Appellant was not the employer and that, therefore, the appeal is incompetent. [13] It will also be necessary to determine the date at which Ms Fitzpatrick's resignation became effective as the Appellant submits that one of the events that allegedly led to Ms Fitzpatrick's decompensation occurred after she had resigned with the result that she was thus not a worker at the relevant time. Accordingly, it submits that the events of that date are irrelevant for the purposes of this decision. Background [14] In late September 2012, Mr Anthony Sells, 80% owner and founder of the Appellant, entered into a contract for the purchase of the entire stock or inventory of an antique store located at the Margaret River, in Western Australia. [15] The contract was entered into with a Ms Onika Whitehouse (or Weishaus), the then owner of the store. The contract was entered into by Mr Sells personally, and not on behalf of the Appellant. [16] In order to effect the sale and to ship the contents of the store to Queensland, where Mr Sells lives, he organized a group of people to travel to the Margaret River to perform a stock-take, and to pack and ship the goods to Queensland. [17] Five people travelled to the Margaret River in October 2012. They were Mr Tony Fox, Mr Nick Ellis, Mr James Wilson, Ms Fitzpatrick and Mrs Lorraine Sells. Mr Fox managed the handling of the entire project. Messrs Fox and Ellis, as well as Ms Fitzpatrick were employees of the Appellant. Mrs Sells is Mr Sells' mother, and does not seem to have been an employee of the Appellant. Mr Wilson became an employee shortly after the Margaret River episode. [18] Mr Sells intended that the three men, Mr Fox, Mr Ellis and Mr Wilson would take the inventory, pack the stock and organise its transport to Queensland. Mrs Sells was to travel to the Margaret River largely for the purpose of having a holiday, and Ms Fitzpatrick was to accompany her, as a companion of sorts.4 [19] Mr Sells did not accompany the group to Western Australia and had little contact with anyone in the group during its four day sojourn to the Margaret River. There is some dispute as to the extent to which Mr Sells communicated with his mother, but in my view nothing turns on this. It appears that the group arrived in Western 4 T1-14, Lines 1-19. -- 4 of 12 -- 5 Australia on Monday 1 October 2012, around mid-afternoon. The following morning, the group began the process of creating an inventory and packing the stock that was to be sent to Queensland. [20] The entire group participated in this process, with Mr Wilson and Mr Ellis located in the back of the shop packing items, and Mr Fox, Ms Fitzpatrick and Mrs Sells in the front of the store, cataloguing the stock. There is some suggestion that Mrs Sells had decided to get involved in the stock-take once she appreciated the magnitude of the task.5 Ms Fitzpatrick and Ms Sells worked at the store only on Tuesday 2 October 2012 and Wednesday, 3 October 2012. [21] Ms Weishaus was intermittently present at the store during the course of the week. A considerable amount of evidence was led as to Ms Weishaus' behavior, however I do not believe that it is necessary to descend to detail. It suffices to say that there is no doubt that Ms Weishaus engaged in increasingly eccentric and bizarre behavior during the four days that stock was being catalogued and packed. She seems to have become obsessively fond of Mr Sells and his mother to the extent that she seems to have thought of Mr Sells as a son and to monopolize Mrs Sells, allegedly on the instruction of Mr Sells. Fortunately, it seems that Ms Weishaus did not spend extended periods at the store. That she was a disruptive influence is to understate the situation. [22] It seems to be common ground that during the Tuesday and Wednesday Ms Weishaus had limited interaction with Ms Fitzpatrick, albeit Ms Fitzpatrick felt it incumbent upon her to try to shield Ms Sells from Ms Weishaus' unwelcome advances. Both Ms Fitzpatrick and Mrs Sells were participating in the stock-take on those days. Ms Fitzpatrick barely spoke to Ms Weishaus on the Tuesday.6 [23] On the Wednesday Ms Weishaus was somewhat insistent that Mrs Sells should join her on activities such as winery visits. Mrs Sells was reluctant to do so. Ms Fitzpatrick, in supporting Mrs Sells said to Ms Weishaus words to the effect: "Don't you understand, she doesn't want to go with you." 7 At some stage during that day Ms Weishaus whilst searching for a couple of vases grabbed Ms Fitzpatrick by the arm and said something to the effect that Ms Fitzpatrick would have to find those vases in a tone of voice that Ms Fitzpatrick resented.8 These events did not seem to upset Ms Weishaus because at the end of the day she embraced Ms Fitzpatrick when farewelling her.9 I infer that they made Ms Fitzpatrick feel uncomfortable. [24] Although the evidence is not clear, it seems that sometime on the Wednesday Ms Weishaus spoke to Mr Sells and made some sort of complaint about the goings on at the store, and in particular about her interaction with Ms Fitzpatrick. Again, it is unnecessary to try to unravel precisely what was said. Suffice to say that following that conversation, Mr Sells left instructions that his mother and Ms Fitzpatrick should not attend the shop any further. The following morning, according to Ms Fitzpatrick, Mr Fox showed her a text message from Mr Sells to 5 T2-58, Lines 10-25. 6 T3-45, Lines 11-19. 7 T1-91, Lines 20-25. 8 T3-50, Lines 4-27. 9 T3-48, Lines 13-17. -- 5 of 12 -- 6 that effect with an instruction that Ms Fitzpatrick was not to have any further contact with Ms Weishaus. How this instruction was communicated and to whom is the subject of conflicting evidence. It is sufficient to say that Mr Sells did not communicate this order directly to Ms Fitzpatrick. Ms Fitzpatrick says that she found out about it on the Wednesday night when Mrs Sells showed her a text message from Mrs Sells' grandson saying that the two women were not to return to the shop and that Ms Fitzpatrick was not to have further contact with Ms Weishaus. Either that night or the following morning Mr Fox confirmed the instruction, told Ms Fitzpatrick he did not know the reason for the direction but that she had done nothing wrong and suggested that she enjoy the remainder of her stay in the area by engaging in sightseeing type activities. Ms Fitzpatrick denies that Mr Fox suggested that she do so, or that he reminded her that he had been provided with funds by Mr Sells that she could use for that purpose, or that she could fly home or to Perth, which Mr Fox said he had told her. I prefer the evidence of Mr Fox on this aspect of the case. His demeanor in the witness box was forthright and to the point and his narration is inherently more credible. It is supported by the fact that Ms Fitzpatrick accompanied Mrs Sells on a winery tour on the Friday. [25] Ms Fitzpatrick did not return to the shop or directly have anything further to do with Ms Weishaus until the Saturday morning of their departure, albeit she had many discussions with Mrs Sells about Ms Weishaus and her antics. The scenario of that Saturday morning beggars belief, but it is not necessary to go into detail. Suffice to say that as the group was preparing to leave their accommodation, Ms Weishaus turned up, demanding that Mrs Sells have breakfast with her before she departed. Mrs Sells did not wish to do so and a scene worthy of an episode of Keystone Cops ensued. Ms Weishaus physically tried to restrain Mrs Sells, Ms Fitzpatrick tried to protect Mrs Sells, Mr Fox threatened Ms Weishaus and the group made a hasty get- away in their rented vehicle. [26] It is not necessary to go into more detail because there is no contest, and the medical evidence supports the conclusion, that Ms Fitzpatrick suffered a personal injury - an adjustment disorder with anxiety and depressed mood - as a consequence of the events of the few days in the Margaret River. [27] Ms Fitzpatrick attributes the injury to the behavior exhibited by Ms Weishaus and to the lack of support for her by the Appellant; in particular her removal from the store, Mr Sells' failure to directly communicate with her and to tell her that he wished her to remain away from the store only in order to placate Ms Weishaus, that she had done nothing wrong and that she was in no way being disciplined or badly thought of. The primary string to Ms Fitzpatrick's bow, is that she decompensated because the Appellant mistreated her by removing her from the shop, particularly without explaining that she had done nothing wrong and that it failed to "protect" her from Ms Weishaus, whom she, and possibly Mrs Sells, considered to be dangerous. The second string is that the conduct of Ms Weishaus caused her decompensation. [28] The Regulator submitted, that there are two elements to the way in which it is put that Ms Fitzpatrick has sustained a compensable injury. The first is the conduct of Ms Weishaus to which the Appellant subjected her as well as its failure to act so as to protect Ms Fitzpatrick from Ms Weishaus and the second, the conduct of the Appellant in banning her from attending the shop without explanation. These are the matters that are said to have caused her to decompensate. There is also another -- 6 of 12 -- 7 alleged stressor, being the conduct of Mr Sells at a meeting at his house on 11 November 2012. I do not have regard to this third matter because, as I hold later, Ms Fitzpatrick had resigned from her employment with the Appellant on 8 November 2012. [29] The Regulator submitted that the first element does not involve the issue of whether the injury arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment so as to excise the action from the s 32 definition of "injury". The Appellant submits that its actions in having Ms Fitzpatrick in the store to conduct the inventory do constitute management action, which it further submits was reasonable and taken in a reasonable way. In the alternative it submits that in any event, to the extent that the events in the store contributed to Ms Fitzpatrick's decompensation, her injury did not arise out of or in the course of her employment, nor was the employment a significant contributing factor to the injury. [30] In respect of the first element, I must ascertain whether the injury arose out of, or in the course of, Ms Fitzpatrick's employment and, if so, whether the employment was a significant contributing factor to the injury. In the circumstances of this case, should I find that the injury did so arise, I must then ascertain whether it arose out of reasonable management action taken in a reasonable way by the Appellant in connection with the worker's employment, or whether it arose out of the worker's expectation or perception of reasonable management action being taken against her. [31] Given that the team was engaged to take inventory and remove the contents of Ms Weishaus' shop, the conclusion would be inescapable that Ms Fitzpatrick's personal injury arose in the course of her employment if the events in the shop contributed to her decompensation. [32] However, on Ms Fitzpatrick's version of events her contact with Ms Weishaus was minimal. According to Ms Fitzpatrick nothing untoward happened between herself and Ms Weishaus on the Tuesday.10 On the Wednesday the only relevant interchanges occurred when Ms Fitzpatrick told Ms Weishaus that Mrs Sells did not wish to go out with her and Ms Weishaus grabbing Ms Fitzpatrick's arm and telling her that she had better find the vases. Later Ms Weishaus hugged her in farewell at the end of the day.11 Despite the medical evidence led by the Regulator, that would not satisfy me that Ms Weishaus' conduct during the period between the Monday and Friday, given the limited interaction between the two protagonists, contributed to Ms Fitzpatrick's personal injury. The facts as I have found them, were not sufficiently made clear to the medical witnesses. Contrary to what Ms Fitzpatrick, and possibly Mrs Sells, thought the evidence does not disclose that Ms Weishaus posed any real threat to either of them. As Mr Fox succinctly put it "the two women worked themselves into a frenzy about being concerned about Ms Whitehouse and what she may or may not do to them." [33] I am prepared to find that the conduct of Ms Weishaus, on the Saturday of the team's departure from the Margaret River was likely one of the factors that contributed to Ms Fitzpatrick's decompensation. It follows that on the Coyne 12 onus I could not be 10 T3-45, Lines 11-18. 11 T3-47, Lines 35-36; T3-48, Lines 15-18. 12 State of Qld (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118. -- 7 of 12 -- 8 satisfied that that conduct was not one of the factors that contributed to Ms Fitzpatrick's decompensation. Even if it was only the fiasco on the Saturday morning that caused her to decompensate or contributed to it, that event occurred whilst, as part of her employment, Ms Fitzpatrick was in the process of preparing to travel back to Queensland.13 [34] It follows that the injury arose out of, or in the course of, Ms Fitzpatrick's employment.14 [35] However, if it also arose out of reasonable management action taken in a reasonable way it is excised from the definition of injury in section 32 of the Act. The Appellant submits that I should so find. In his written submissions Mr Merrell, for the Appellant referred to a number of cases that indicate that what may amount to management action has been broadly interpreted. Whilst I accept that this is so, it was not management action that resulted in the events in the shop or the ruckus on the Saturday morning of the departure of the team from the Margaret River. I could not be satisfied that Ms Fitzpatrick's psychiatric or psychological disorder arose out of, or in the course of, either of the circumstances set out on section 32(5) of the Act. It follows that the Appellant has not discharged its onus of satisfying me that the injury did so arise. [36] However, that is not the end of the matter. The employment must also have been a significant contributing factor to the injury. "Significant Contributing Factor" [37] In Qantas Airways Limited v Q-Comp and Blanch, 15 President Hall said: "'Significant' qualifies the expression 'contributing factor'" and, although not to be taken as meaning "large", "great", "weighty" or "substantial", is still a concept that may be understood to mean: "of importance"; and/or "of consequence" to the occurrence of the injury. [38] In relation to the issue of whether employment was "a contributing factor", the matter was put by Windeyer J in Federal Broom Co Pty Ltd v Semlitch 16 (at 641) in these terms: "When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the employee in fact does in his employment. The contributing factor must, in my opinion, be either some event or occurrence in the course of employment or some characteristic of the work performed or the condition in which it was performed." [39] In Croning v Workers' Compensation Board of Queensland 17 de Jersey P (as he then was) held that to be a significant contributing factor the employment needed to be 'a real, effective cause' of the injury, not merely the setting or background in which the injury occurred. 13 QComp and John Kennerly and Qantas Airways Ltd (C/2012/16 - http://www.qirc.qld.gov.au). 14 Kavanagh v Commonwealth (1960) 103 CLR 547. 15 Qantas Airways Limited v Q-Comp and Michelle Blanch [2009] QIC 20. 16 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. 17 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100. -- 8 of 12 -- 9 [40] To determine whether employment was a contributing factor it is necessary to characterize and understand what it was that Ms Fitzpatrick was employed to do and what she was in fact doing at the Margaret River. I accept Mr Sells' evidence that his intention, at the time that he arranged for Ms Fitzpatrick to travel to Western Australia, was primarily to provide a companion for his mother. I also accept that her role changed to one of assisting with the inventory once they got to the Margaret River. I am prepared to find that it was incidental to Ms Fitzpatrick's role to look out for Mrs Sells' interests; she certainly considered that to be her role. [41] During the time that the team was in Western Australia Mr Fox was the person in charge and acted for and on behalf of the Appellant, however, unsurprisingly, the work was completed in a very ad hoc manner. None of the team had previously been involved in such a task. It was quite beyond the normal duties of any of them. [42] It is clear from the evidence that but for the bizarre conduct of Ms Weishaus the stock-take and packing is likely to have proceeded without incident. Ms Weishaus was the vendor of the contents of the antique store, she was not an employee of the Appellant, nor was she involved in the taking of the inventory or packing of the stock. [43] Paraphrasing de Jersey P in Croning, 18 in the circumstances of this case, the employment was merely the setting or background in which the injury occurred, it was not a real, effective cause of the injury; at least insofar as the events that transpired at the shop are concerned. Thus, whilst that might be sufficient for a finding that the injury arose in the course of the employment to be made, on the evidence, it is not sufficient to sustain a finding that the employment was a contributing factor to the injury, let alone a significant contributing factor. [44] Given that Ms Weishaus was not an employee, contractor or a person performing any role for the Appellant, I could not be satisfied, on the balance of probabilities, that insofar the events in the store are concerned, even if contrary to what I have found, that they did contribute to Ms Fitzpatrick's decompensation, the employment was a contributing factor, let alone a significant contributing factor, to the injury. However, as this is an employer's appeal, it bears the onus of persuading me that "the decision appealed against was wrongly made".19 Accordingly, it would seem that the Appellant must persuade me that the employment was not a significant contributing factor to the personal injury. I am so satisfied on the balance of probabilities. [45] Insofar as the incident on the Saturday morning of the departure of the team is concerned, if that is a cause of the decompensation, its connection with Ms Fitzpatrick's employment is tenuous. In my view, albeit the incident of the Saturday morning may have been a causative factor of the injury, it cannot be said that the employment was a contributing factor; the incident was too far removed from the employment. The employment was not a real, effective cause of the injury, it was merely the setting or background in which the injury occurred. The bizarre and erratic behavior of Ms Weishaus on the Saturday morning, after the stock-take and 18 Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100. 19 State of Qld (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118. -- 9 of 12 -- 10 packing had been completed, was not, in my view something that could properly be characterized as an event related to the employment. [46] Insofar as Ms Fitzpatrick's personal injury was caused by the events of the Saturday morning and could be said to have arisen in the course of her employment, I am satisfied that the employment was not a significant contributing factor to that injury. Management Response [47] Paraphrasing s 32(5) of the Act, injury does not include a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer, or the worker's expectation or perception of reasonable management action being taken against the worker. [48] I accept that the authorities emphasize that perfection is not required; the requirement is that the management action be reasonable and reasonably taken. Reasonable means reasonable in all the circumstances of the case: WorkCover Queensland v Kehl.20 [49] In Merle Prizeman v Q-COMP 21 the Industrial Court held: "…in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, it is the reality of the employer's conduct not the employee's perception of it which must be taken into account." 22 [50] Prizeman seems to me to be particularly relevant in the circumstances of this case. [51] The Regulator submits that the manner in which Ms Fitzpatrick was removed from the store, the failure to provide her with any reasonable explanation for why that occurred, the failure by Mr Sells to communicate with Ms Fitzpatrick and his failure to discuss with her and obtain her version of events prior to making the decision for her to be removed from the store means that the finding that the relevant management action was taken in a reasonable way is simply not open. It submits that the management response to the exposure of Ms Fitzgerald to Ms Whitehouse and the events in the Margaret River was one of the factors that gave rise to Ms Fitzpatrick's condition. [52] I disagree. In my view the Appellant acted reasonably and appropriately in the circumstances. Prior to asking Ms Fitzpatrick to accompany Mrs Sells to the Margaret River, Mr Sells, the managing director of the Appellant, had had minimal contact with Ms Fitzpatrick who worked in the Appellant's call centre. Although precisely what Ms Weishaus had told him about the goings on in the store is not clear, what is clear is that Mr Sells was aware that there was some sort of unsatisfactory interaction between Ms Weishaus and Ms Fitzpatrick and perhaps others. Given that he could hardly remove Ms Weishaus from the store, the only sensible thing for him to do is precisely what he did. By directing that his mother and Ms Fitzpatrick stay away from the store Mr Sells acted to protect them and to 20 WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94. 21 Merle Prizeman v Q-COMP (2005) 180 QGIG 481. 22 Ibid. -- 10 of 12 -- 11 prevent further conflict. He got Ms Fitzpatrick and his mother out of harm's way. To suggest that he had some obligation to personally contact Ms Fitzpatrick is nonsense. Even if it be the fact that Ms Fitzpatrick first became aware of the directive when Mrs Sells received a message from her grandson, Mr Fox put matters to rest the following morning when he assured Ms Fitzpatrick that she had done no wrong. I have referred more fully to the evidence in paragraph 24. [53] Insofar as Ms Fitzpatrick's psychiatric or psychological disorder arose out of or in the course of the actions of the Appellant in removing her from the store I am satisfied that that action was reasonable management action taken in a reasonable way by the Appellant in connection with Ms Fitzpatrick's employment. Accordingly, it is excised from the s 32 definition of injury. [54] It also seems to me that the injury arose out of, or in the course of, Ms Fitzpatrick's expectation or perception of reasonable management action being taken against her. For present purposes I accept that removing her from the shop was action taken against her. Ms Fitzpatrick apparently expected that Mr Sells would have phoned her personally to discuss the matter, get her views and explain his reasons for her removal from the store: "(I was) just shocked, confused. I couldn't understand what was going on; why I was being treated like that, why didn't Tony want to talk to me. I was that close to the phone."23 [55] Ms Fitzpatrick perceived, unreasonably in my view, that the action taken by the Appellant in removing her and Mrs Sells from the fray was some sort of indictment against her. For that reason her psychiatric or psychological disorder is excised from the definition of injury in s 32 of the Act. Who is the employer? [56] Section 30 and Schedule 3 of the Act relevantly provide that a person who lends or lets on hire the services of a worker who is a party to a contract (regardless of whether the contract is a contract of service) with that person continues to be the worker's employer while the worker's services are lent or let on hire. [57] There is no contest that Ms Fitzpatrick prior to, and immediately upon her return from, visiting the Margaret River was employed by the Appellant. She tendered her resignation from the Appellant on the Monday following her return. Whilst at the Margaret River she continued to be paid by the Appellant. Mr Sells personally provided living and incidental expenses and a $1000 bonus. There is nothing to suggest that during the week spent at the Margaret River Ms Fitzpatrick was on any form of leave from the Appellant. [58] Albeit it was done informally, it is clear that the Appellant lent the services of Ms Fitzpatrick to Mr Sells during the time that she was at the Margaret River. Accordingly, at the time of Ms Fitzpatrick's personal injury the Appellant was her employer. I agree with the Appellant's submission that the references by the regulator to the basic doctrines of company law and the duties owed by Mr Sells as 23 T3-50, Line 37-40. -- 11 of 12 -- 12 an officer of the Appellant under the Corporations Act 2001 are misplaced and that the arguments are misconceived. [59] The appeal is competent. Date of resignation [60] Ms Fitzpatrick tendered her resignation on 8 October 2012. She gave one week's notice. However, by agreement with her manager, Mr David Wilson, she was not required to, and did not, work out her notice. The following day she was paid for the remainder of the week in lieu of notice. [61] Generally, and in the absence of any contrary intention, when an employer pays an employee in lieu of notice, it is inferred that the employer intends that the termination of employment take effect immediately.24 That is when the employment relationship ends. [62] Although, in a telephone conversation, Mr Sells tried to talk Ms Fitzpatrick out of resigning he was unsuccessful. I find that Ms Fitzpatrick's employment came to an end on 8 October 2012 by mutual agreement. [63] Ms Fitzpatrick attended a meeting at Mr Sells' house on 11 October 2012. The meeting was held at Mr Sells' request. Ms Fitzpatrick was not obliged to go but attended because she wanted to sort out the events of the Margaret River. She did not attend the meeting as an employee of the Appellant. What occurred at that meeting is not relevant to the issues on the appeal. [64] It follows that the appeal is allowed, the decision of the respondent dated 12 August 2013 is set aside and Ms Fitzpatrick's claim for workers' compensation is rejected. [65] The respondents are to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 24 Saigen v Sanel Pty Ltd (1994) 54 IR 185. -- 12 of 12 --