Brisbane City Council v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 104

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brisbane City Council v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 104 PARTIES: Brisbane City Council (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2012/244 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 11 June 2014 HEARING DATES: 17, 18 and 19 July 2013 16, 17 and 18 December 2013 17 January 2014 21 February 2014 (Appellant Submissions) 7 March 2014 (Respondent Submissions) 19 March 2014 (Submissions in Reply) MEMBER: Deputy President Swan ORDERS : 1. The Appeal is upheld. 2. The decision of Simon Blackwood (Workers' Compensation Regulator is set aside. 3. The Regulator is to pay the Appellant's costs. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant was the employer - Employee was worker undertaking a traineeship with the Appellant as bus driver worker made extreme number of complaints to Appellant concerning safety issues - Appellant reasonably responded to worker's concerns - Worker suffered a personal injury - Employment was a significant contributing factor - Find that reasonable management action was taken in a reasonable way - Regulator's decision is set aside and Appeal allowed. CASES: Workers' Compensation and Rehabilitation Act 2003 -- 1 of 31 -- 2 s 32, s 131(c) Labaj v WorkCover Queensland (2003) 174 QGIG 370 State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447 APPEARANCES: Mr C. Clark, Counsel instructed by Brisbane City Legal Practice for the Appellant. Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Decision [1] This appeal, filed by the Brisbane City Council (the Appellant) seeks to overturn the decision of the Workers' Compensation Regulator (the Respondent) of 25 May 2012 which accepted a claim for compensation lodged by Mr Trevor Gynther (the worker) in regard to a psychiatric injury. The claim had been rejected at first instance by the Appellant, a licensed self-insurer, on 18 October 2011. The initial claim for compensation had been submitted by the worker on 17 June 2011. Witnesses [2] Witnesses for the Appellant were:  Dr Prabal Kar (Psychiatrist);  Mr Scott Ingham (Depot Manager - Toowong and Richlands);  Mr Darryl Brooks (Depot Supervisor - Toowong and Richlands);  Mr Robert Kafka (bus operator);  Mr Malcolm Cottrell (Network Co-Ordination Officer). [3] Witnesses for the Respondent were:  Mr Trevor Gynther (the worker);  Mr Mark Lightbody (bus operator);  Dr Johnson Wong (General Practitioner);  Dr Kevin Kraushaar (Psychologist);  Dr Chris Cantor (Psychiatrist). Legislation [4] The Legislation relevant to this Appeal is s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act): "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. -- 2 of 31 -- 3 (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following - (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is injury only to the extent of the effects of the aggravation. (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation." Onus of Proof [5] The Appellant bears the onus of proof on the balance of probabilities1,2. Overview of Appellant's claim 1 Labaj v WorkCover Queensland (2003) 174 QGIG 370 2State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447. -- 3 of 31 -- 4 [6] In the Notice of Appeal, the following grounds are asserted:  That the worker's application for compensation ought to have been rejected as it was lodged more than 6 months after his entitlement to compensation arose and that he did not establish a reasonable cause for his failure to do so under s 131(c) of the Act;  That based on the evidence of Dr Kar, the worker did not suffer an injury of a psychological nature as defined in s 32(1) of the Act as a result of the alleged actions of Mr Ingham;  That if the worker did in fact suffer an injury, the actions of Mr Ingham were reasonable management action conducted in a reasonable way in connection with the worker's employment and pursuant to s 32(5) of the Act and were excluded from operation of the Act. [7] The grounds relied upon in the Appellant's claim are: (a) (i) The worker's entitlement to compensation arose on 17 November 2010; (ii) On 18 November the worker advised his general practitioner, Dr Wong, that he intended to make a workers' compensation claim; (iii) On 23 November 2013, the worker advised a Council investigator, John Mitchell that he was considering lodging a workers' compensation claim; (iv) The worker engaged Adam Taylor, a workplace lawyer and industrial advocate of "Workers First" in late 2010 to act on his behalf; (v) The worker responded to a "show cause" notice issued by the Department of Education and Training who decided to cancel his Training Agreement on 10 February 2011. The worker then engaged in various attempts to challenge the decision including seeking a review and filing an appeal in the Queensland Industrial Relations Commission (QIRC). The worker pursued his appeal in the QIRC to the point that it was set for hearing on 4, 5 and 12 August 2011 but he did not proceed due to ill health and the appeal was effectively abandoned by him; (vi) The worker submitted his application for workers' compensation on 17 June 2011. (b) (i) Dr Kar is a specialist in psychiatry; (ii) Dr Kar opined that the worker did not meet SSM-IV criteria for the diagnosis of post-traumatic stress disorder; (iii) Dr Kar concluded that the worker was distressed from the loss of his employment but was not suffering a work-related psychiatric disorder or work-related psychiatric disability. (c) (i) During his employment with the Appellant the worker contacted the Network Control Centre (NCC) on approximately 700 occasions; -- 4 of 31 -- 5 (ii) The worker's constant stream of unfounded complaints caused disruption and frustration to depot garage staff and resulted in management informally directing him to desist from this behaviour; (iii) The Appellant identified that the worker was experiencing ongoing problems in revenue control resulting in the Appellant counselling him about this issue and directing him to cease using his own funds to cover shortfalls in his float; (iv) On 10 May 2010, the worker called the garage in an incoherent state four to five times in a 2 hour period demanding that a bus be taken off the road and was warned that his behaviour jeopardised his prospects of being offered permanent employment; (v) On 1 September 2010, the worker failed to wear a safety vest in the depot yard and was issued with a verbal warning; (vi) On 2 September 2010, the worker refused to drive the bus despite advice that it was safe to drive and he abandoned passengers at 8.45 pm; (vii) On 3 September 2010, Management at the depot met with the worker to discuss their legitimate concerns about his non-performance and serious breaches of workplace safety and the Code of Conduct; (viii) The meeting was not conducted in the manner alleged by the worker and he continued to work for the Appellant until his suspension on 17 November 2010 [Exhibit 5]. Extension of time [8] An extension of time application was heard and granted by the Commission in its decision on 14 January 2013. Appellant's perspective on breadth of its application [9] The Appellant claimed that a full appreciation of the worker's employment history prior to the second meeting of 3 September 2010 is required to both comprehend and assess what took place at this meeting. [10] The Appellant's submission is that the worker's claim was that any injury suffered by him arose during the second meeting held on 3 September 2010. The particular point pressed by the worker was the alleged comment made by Mr Scott Ingham that he would "manage him" out of a job. [11] The Appellant claims that in cross examination of the worker this point is highlighted: "All right. Now, I've listened carefully to your evidence, Mr Gynther, and the crucial event seems to be in that meeting of the 3rd of September where Mr Ingham threatens to manage you out of a job; is that so? --- I would say yes, that was pivotal to the way I felt and the way I performed. Okay? --- And what happened then subsequently. That's the crucial issue, being threatened with the loss of your job? --- Yes, because I love my job. -- 5 of 31 -- 6 Can you answer my question? Do you agree with that or not? --- Yes. Okay? --- And the manner he did it and the body language and the time. Okay. All right. So it's what he said and how he said it? --- Yes, Mr Clark. Okay. Which reduced you to, you know, a crying, sobbing mess? --- Yes, Mr Clark. Okay. All right. That happened on the 3rd, correct? --- Yes" [T5 - 67]. Commission Note - this questioning related to the second meeting of 3 September 2010. [12] The Appellant claims that the Respondent is unable to now elevate other workplace issues raised by the worker together with those which arose out of the first meeting of 3rd April 2010 to the level of operative stressors. It was claimed to do so was misplaced and impermissible. Appellant's and worker's assessment of worker's history prior to the meetings of 3 September 2010. [13] The worker is now 63 years of age. He commenced work with the Appellant on 9 June 2009 as a trainee bus driver, by way of a tri-partite agreement between the worker, the Appellant Council and the Department of Education and Training. [14] The Appellant contends that during his employment, the worker began submitting a range of complaints concerning 'safety issues'. The Appellant stated that the worker had contacted NCC on approximately 700 occasions [Exhibit 5]. [15] Depot Manager, Mr Scott Ingham generally identified the type of issues complained of by the worker:  1 December 2009 - roads perched above large drops [Exhibit 14];  31 December 2009 - rainwater runoff from Kenmore Road overpass [Exhibit 15];  15 February 2010 - safety at Wesley Hospital inbound bus stop [Exhibit 6];  26 May 2010 - serviceability of bus stops at Gap Village, Chapel Hill, Ann Street and Wharf Street City [Exhibit 19];  27 August 2010 - convex mirror on buses [Exhibit 23];  That the headlights of the buses were illegal [T3 - 34];  That a telegraph pole was too close to the bus stop and should be moved [T3-34]; and  Concerning the telegraph pole, the worker had taken it on himself to get some quotes to have the pole removed [T3 - 34]. [16] Mr Ingham's evidence was that, in the early days of the worker's employment, he appeared to be "quite keen and exuberant. He was a prolific memo writer so he would always write memos with suggestions or have you thought about this or has -- 6 of 31 -- 7 council ever thought about that so that was probably my first contact with him was probably written and - and then I recall he used to come to my office quite often" [T3 - 33]. [17] Ultimately, Mr Ingham said those memos and requests from the worker were "tying up the garage guys … safety officer … the planner" [T - 38]. [18] Mr Ingham explained to the worker that he should concentrate more upon being a trainee, but stressed that he did not want the worker refraining from raising legitimate safety issues with him. However, the scale of complaints raised by the worker became "unrealistic" [T3 - 38]. [19] A particular example of an 'unrealistic' complaint involved the worker independently making contact with the Queensland Police Force or Queensland Transport. Mr Ingham stated that the worker had been making representations to one or the other Department purportedly on behalf of the Appellant concerning his various safety issues. More than one conversation was held by Mr Ingham with the worker upon this issue and his responsibilities as a trainee bus driver. Mr Ingham believed that this particular event "was in my mind the catalyst for the relationship to change markedly" [T3 - 34, 35]. [20] In July 2010, the worker's evaluation form noted: "… has been advised that he needs to report bus faults and road hazards and then follow the correct procedures and policies. He should not take it upon himself to approach departments or organisations and have major changes made as this puts him in breach of BT Policy and Code of Conduct" [Exhibit 20]. [21] A significant issue for the worker and the Appellant arose around bus number 1520 in the 1500 bus series. [22] The concerns expressed related to faulty ABS brakes. Mr Ingham arranged for the garage manager and the fleet management services division to talk to the worker to explain to him the workings of the ABS braking system in the 1500 bus series and in his view, the worker didn't "get it" [T3 - 38, 39]. [23] Mr Ingham claimed that there had been so many complaints made by the worker regarding Bus 1520, that he had raised the issue with the manufacturer and other Appellant mechanics and provided the means whereby mechanics familiar with the bus and its features explained the workings of the bus to the worker. Mr Ingham also pointed out that other employees had driven the bus and had experienced no problems with it. [24] On 1 September 2010, Mr Ingham was advised of a significant incident regarding the worker and Bus 1520. [25] Mr Ingham was advised that there were passengers on board the bus at the time of the incident. He was told that the worker refused to drive the bus. The worker had claimed that the NCC officer said he could go home at the end of that shift. -- 7 of 31 -- 8 [26] Mr Ingham immediately arranged for mechanical staff to report back to him regarding this bus. They advised that there had been no fault found with the bus and it was put back into service. That bus has continued to be used and there had been no major issue with its brakes. [27] Another significant issue for the Appellant occurred on 7 May 2010 when the worker had gone home ill on account of a back condition. The worker said this physical condition ensured that he could not drive the type or model of bus allocated to him for that day. The worker stated that he had a medical certificate from Dr Wong saying that he was fit to drive other buses, but that the Appellant had told him to go home. The worker said he had then telephoned the garage two to three times regarding Bus 1520. [28] An employee who had been working on the front counter spoke to Mr Ingham advising that the worker had rung the front counter a number of times and the garage manager around four to five times on that day. [29] Mr Ingham again spoke to the worker advising him to adhere to the Brisbane Transport policies and procedures. Mr Ingham told the worker that he was entitled to ask questions concerning safety but that he did not have the right to "badger people if he didn't get the answer that satisfied him. He would just keep going and going and going." [30] Mr Ingham formed the view that the worker, after having gone home, had been drinking because of his slurred speech in a telephone conversation he had with Mr Ingham on that day. The worker admitted to having two to three stubbies of beer at home [T5 – 28]. [31] Mr Ingham advised the worker that because of his actions on 7 May 2010, such behaviour might affect him being offered a permanent position on the completion of his traineeship [T3 - 42, 43]. [32] The worker asserted that his conduct on that day was justified on the basis of his concerns for bus safety. He claimed to be still in "bus mode" when he had gone home and in his cross-examination he sought to justify his actions on the basis that an incident with Bus 1520, which he claims occurred on 4 May 2010 where "people came out of their seats", was a matter of significant concern to him [T5 - 27]. [33] A further matter concerning the Appellant related to the worker's involvement in 'revenue issues'. The Appellant said that the worker had ample training, including extra training, in the processes to be followed with money (i.e. using the 'till' on the bus) as part of his traineeship. [34] Each bus driver was allocated a float of $50 for the purpose of being able to give change to passengers. At the end of the shift, the driver was required to retain the $50 float and submit his takings for banking. The worker, however, was using his own money to top up his float. The worker's reason for doing this was that some passengers were giving him $50 or $100 notes. Mr Walsh advised the worker to cease this practice immediately and to carry only the float of $50. The Appellant provided the worker with strategies for dealing with larger amounts of money on the bus [Exhibit 21]. -- 8 of 31 -- 9 [35] A dispute arose between the Appellant and the worker concerning monies outstanding on the worker's part. After the meeting 13 July 2010, the worker agreed to pay an outstanding amount of $207 with the remainder being paid one week later. [36] The worker on 1 September 2010 had been warned when not wearing a safety vest in the tarmac area of the depot [T5 - 27]. The worker says he was confronted by Mr Brooks who said "you're not wearing your safety vest, we have got you at last." Mr Ingham gestured to the worker to come into his office. The worker says that Mr Ingham said words to the effect of "we were waiting for you" and "we knew as soon as you crossed under that carport that we had you" [T5 - 38]. [37] Mr Ingham denied meeting with the worker saying that it would be a case of 'extreme overkill' for him and another supervisor to chastise someone not wearing a vest. Mr Ingham's evidence was that he asked Mr Brooks to have a word with the worker and issue him with a verbal warning and that this course was standard for all workers in this situation. [38] Around the time of the meeting on 3 September 2010, Mr Ingham was concerned about the worker's general behaviour (related to the issues already mentioned) and he believed that unless there had been a "fairly dramatic improvement" in the worker's behaviour, it would be unlikely that the Appellant would put him on full- time at the completion of his traineeship. [39] At the time of the meetings of 3 September 2010, the following persons were present: Mr Brooks, Mr Kafka, Mr Ingham, Mr Lightbody and the worker. The meetings of 3 September 2010 The Appellant's evidence of the first meeting [40] Mr Brooks had sent a memorandum to the worker dated 2 September 2010 stating that the first meeting of 3 September 2010 was called for the purpose of discussing the worker's "performance and attitude". That memorandum said that the worker could be represented by a person of his choosing. Mr Ingham was not present at this meeting. [Exhibit 7]. [41] The worker's recollection of the meeting was that he received notification of the meeting at 5.00 am on 3 September 2010. The worker claims not to have had sufficient time to have a representative of his choice attend the meeting with him. [42] Mr Walsh (who was not called to give evidence by the Appellant) asserted that the worker had refused to drive a bus on the night of 1 September 2010. The worker provided an explanation as to his prior experiences with Bus 1520 and what had occurred on 1 September 2010. [43] The meeting ended with parties agreeing that NCC tapes, which the worker said would clarify his claim that he was told to go home would be obtained and listened to. -- 9 of 31 -- 10 [44] Mr Brooks' evidence was that he was unaware of any prior incidents involving the worker at the time of the first meeting of 3 September 2010. His only knowledge was of the incident with Bus 1520 on 1 September 2010 and revenue issues with the worker. [45] Mr Kafka's evidence was that he did not recall much detail of the first meeting of 3 September 2010. He did recall, however, the issue concerning revenue and that the worker had paid money after the conclusion of the meeting. He did not believe there had been any discussion around Bus 1520 at this meeting. It should be noted that Mr Brooks' File Note shows that considerable discussion ensued with the worker concerning Bus 1520 [Exhibit 8]. 2nd meeting of 3 September 2010 [46] At the end of the first meeting on that day, the worker was advised that another meeting would be held later that day with Mr Ingham. The worker stated that he was unaware of what Mr Ingham wished to see him about. [47] The worker stated that he had not requested that Mr Kafka and Mr Lightbody be present at the meeting. However, Mr Kafka said that he would not have attended the meeting even if asked by management, unless the worker had asked him to do so. [48] The worker recalls the meeting as follows:  At the start of the meeting, Mr Ingham "attacked him in an aggressive manner" and put his fist on the table and pointed at the worker accusing him of refusing to drive Bus 1520 [T5 - 50];  The worker believed that Mr Ingham was acting in an arrogant, aggressive and demeaning manner [T5 - 50];  Mr Ingham advised the worker that he was receiving complaints about him every day;  The worker asked Mr Ingham who had made the complaints and Mr Ingham responded: "If you don't know who's complaining about you, you're stupid. You are really stupid." [T5 - 51];  The worker became tearful;  Revenue issues were then raised by Mr Ingham;  Mr Ingham accused the worker of being a thief on two occasions and that he was going to call the Police and picked up the phone to show that he intended to/or was ready to call the Police [T5 - 52];  Mr Ingham advised the worker that he was going to manage him out of his job [T5 - 52];  Upon hearing this, the worker said he felt numb and was sobbing uncontrollably [T5 - 56];  Later that evening, the worker was extremely upset and could not sleep. [49] Mr Lightbody's evidence was that:  He had worked as a Bus Operator for the Appellant for 26 years;  On 3 September 2010 he had attended the first meeting;  The meeting related to workplace health and safety issues [T8 - 3]; -- 10 of 31 -- 11  When that meeting finished, he was asked by Mr Ingham to attend a further meeting involving the worker;  At the commencement of the second meeting on that day, the worker had asked management whether they had obtained the tapes from the NCC concerning the incident on 1 September 2010;  Mr Lightbody said Mr Ingham mentioned the complaints he had received from others concerning the worker. The evidence as given by the worker was corroborated by Mr Lightbody to the extent that the worker had asked for identification of those who had complained about him. It was claimed by this witness that Mr Ingham called the worker "stupid" on two or three occasions;  Mr Ingham appeared to be aggravated and his voice was raised in an aggressive manner;  The worker had appeared upset but was not crying, he didn't see him shaking, or Mr Ingham feigning a phone call to the Police [T8 -7,8];  The worker was also speaking in a raised voice;  Mr Ingham, when referring to the money issue, raised his voice and told the worker that he was going to call the Police (this was said on two or three occasions) and accused the worker of 'theft';  Mr Ingham sometimes let the worker respond, but on other occasions Mr Ingham would "just cut him off". When cutting off the worker's response, Mr Ingham would just interject, raise his voice and point his finger at the worker;  There was a threat made to the worker regarding his job by Mr Ingham and the worker appeared more upset but was not crying;  Generally, Mr Lightbody stated that the worker was not 'excitable' at the meeting and had acknowledged that there were problems and that he was trying to address them; and  In evidence, Mr Lightbody said "And the meeting progressed in that sense with, once again, Ingham trying to get across to Mr Gynther - and I accept fairly emphatically and fairly directly - that unless his performance improve - you know, his future prospects, his job could be in doubt." [T8 - 31, 35]. [50] Mr Kafka's evidence was as follows:  Mr Kafka said that the worker and Mr Lightbody had asked him to attend the meetings on 3 September 2010 This was denied by both the worker and Mr Lightbody;  Mr Kafka believed that both the worker and Mr Ingham became 'excitable' and that both were speaking loudly;  Mr Kafka said that the worker had challenged Mr Ingham's management abilities and Mr Ingham in retaliation had said he'd manage the worker out of his job;  The worker had been offered further training by Mr Ingham. To this end, the worker had said that he liked his job and that he wanted to remain in his position;  Mr Kafka also said that it was 'possible' that in Mr Ingham's 'overactive state' that when he mentioned calling the Police that he banged his fist on the table. -- 11 of 31 -- 12 [51] The Respondent states that the manner in which this second meeting of 3 September 2010 was held was not reasonable because the worker had not been given appropriate notice of the meeting. [52] The Respondent stated that the notice given to the worker concerning the first meeting of 3 September 2010 [Exhibit 7] was also deficient in that it failed to give him sufficient information as to what the meeting was about to enable him to prepare to respond to the complaints. [53] When the second meeting occurred later that day, the same deficiencies occurred as outlined in paragraphs 51 and 52. At the second meeting, the worker arrived with both Mr Kafka and Mr Lightbody already present. [54] The Respondent stated that holding two meetings with the worker on the one day was not considered to be reasonable management action. [55] The Respondent continued to state that the unreasonableness of the meetings produced an outcome which saw Mr Ingham behave aggressively towards the worker and that when the worker attempted to speak, he would be cut off with Mr Ingham telling him to 'shut up' and pointing his finger at him. Mr Ingham also called the worker a 'thief' and threatened to call the Police. Finally, Mr Ingham threatened the worker's job and told him that he was going to manage him out of a job. The worker's concerns regarding Bus 1520 The First incident involving Bus 1520 - 27 January 2010 [56] As the worker was driving Bus 1520 on 27 January 2010, he was pulled over by another bus driver who told him that there was a problem with the back axle of his bus. In the worker's view, the back axle was "completely skewiff". [57] The worker phoned NCC and advised them and a bus change occurred. The Second incident involving Bus 1520 - 14 April 2010 [58] The worker was driving Bus 1520 and upon approaching a small roundabout, he noticed that gentle braking on his part resulted in the following - he heard a very loud banging mechanical noise and then "very sharp braking which threw people out of their seats and forwards up to the windscreen, and bags and other items flew forward as well" and also "because passengers screamed and blamed me. Somebody yelled out driver, driver or words to that effect and I asked is anybody hurt. I said that wasn't me. Something's wrong with the bus." [T5 - 21]. [59] The worker contacted NCC who requested that he drive the bus to a particular stop and he did so slowly. Every time the worker slowed down, the bus malfunctioned as it had previously done. At a particular point, the worker advised NCC that the bus was unsafe to continue driving. A replacement bus arrived. -- 12 of 31 -- 13 [60] The worker did not submit a defect report because he believed that Mr Manning (who was in charge of the mechanical workshop) had done so. The Third incident involving Bus 1520 - 4 May 2010 [61] A similar incident had occurred on this day with the ABS system on the bus. NCC were advised and the worker was told to finalise his trip by driving very slowly. [62] The worker advised Mr Manning that this had occurred previously with this bus, but Mr Manning was unable to find a defect report for the incident of 14 April 2010. [63] The worker believed that he had been 'fobbed off' by Mr Manning as he was told there was nothing wrong with Bus 1520. [64] Exhibit 30 has an entry dated 11 May 2010 relating to "BRAKES". The entry states "brakes banging and holding on". While the Appellant says that there is no evidence of any issue with the bus on 4 May 2010, the Respondent submits that the entry of 11 May 2010 conforms with the description given by the worker on 4 May 2010. The Fourth incident involving Bus 1520 - 1 September 2010 [65] On this date, the worker had driven Bus 1520 around the Bardon area of Brisbane. He pulled into a particular bus stop for passengers to alight. The road was on a downhill slope. As the worker attempted to recommence driving, the bus wouldn't move. He claims that the brakes had locked. The worker said he tried all that he knew to get the bus to start, but to no avail. [66] The worker called NCC who advised that mechanics would attend the site within ten minutes. In the interim, NCC walked the worker through all the procedures necessary to restart the bus. This didn't work. [67] While waiting for NCC personnel to arrive, the worker said he was "slumped over and despondent about having let down more passengers" [T5 - 41]. [68] The worker claimed that Mr Cottrell, for 20 minutes, undertook the same procedures on the bus as he had done multiple times without success. The bus started temporarily and then became stuck. The worker says that Mr Cottrell expressed frustration because he did not know what was wrong with the bus. However, eventually Mr Cottrell succeeded in getting the bus started and moving forward [T5 - 41]. [69] The worker says that he was asked to continue driving the bus but he was apprehensive about doing so. Mr Cottrell said to him that he was instructed to drive the bus. The worker responded "But the bus is not reliable. It's likely to break down again". The worker said this whole conversation was recorded on the NCC tapes, but his request to obtain those tapes from Mr Walsh had failed. [70] Mr Cottrell advised NCC that the worker "doesn't want to drive the bus". The worker said he explained that "No, I'm not refusing to do the work. I just request a reliable bus. Give me any other bus and I'll finish my shift". The worker said the next comment made to him from NCC was "He's refused an order … tell him to go -- 13 of 31 -- 14 home." Mr Cottrell responded to him with "Well you heard him. He said you're being relieved of the rest of your shift." [71] To this last incident, the evidence from Mr Cottrell was as follows:  When Mr Cottrell arrived at the location of Bus 1520, he found the worker, slouched in his seat facing forward and he "looked beaten" [T4 - 31];  Mr Cottrell went through the various procedures to try to move the bus. These procedures were repeated by him on a number of occasions;  Mr Cottrell confirmed that he did not know what was wrong with the bus;  A complete shut-down of the bus takes about three minutes;  Mr Cottrell stated that even when he undertook that process, the bus did not move. After he repeated the process a few more times, the bus moved a short distance in reverse;  Mr Cottrell stated that this process may have taken 12 to 15 minutes. The Respondent submits that it would be somewhere between the 12 to 15 minutes nominated by Mr Cottrell and the 20 to 30 minutes nominated by the worker;  Mr Cottrell confirmed that NCC had called back and told them that the worker's shift was covered and he passed this information on to the worker;  Mr Cottrell confirmed that the worker had told him that he had no confidence in the bus and wanted to return to the depot. Mr Cottrell understood that comment to mean that the worker felt unsafe driving Bus 1520. Mr Cottrell drove the bus back to the depot. Medical Evidence Dr Wong's Evidence [72] The worker's evidence is that he sustained substantial psychological distress and symptoms following the meeting with Mr Ingham on Friday 3 September 2010. He continued working on Saturday and Sunday as his General Practitioner, Dr Wong, did not open the practice on week-ends. [73] Dr Wong had treated the worker for 15 years. [74] Dr Wong's evidence is as follows:  Dr Wong's notes prepared on 6 September 2010 show that the presenting issue was "Attempt to re-obtain pilot & gun licence". Also reference was made that "he has recovered well from previous life stress and was enjoying his job as bus driver 'til recently has disagreement with superior regarding incident of bus breakdown". Further, the following was recorded "Slightly upset. Concerned about work dispute. Good insight to issue.";  Dr Wong confirmed during his evidence that there were some mild depressive symptoms present on 6 September 2010; -- 14 of 31 -- 15  Dr Wong issued a Workers' Compensation medical certificate on 25 November 2010. The diagnosis was of post-traumatic stress and notes that the worker's stated cause of injury was being verbally abused by his manager and the threat of being sacked. [75] Dr Wong had not treated the worker for any psychological condition during 2010 prior to the events of September 2010. [76] In cross-examination, the worker was asked to describe the symptoms he reported to Dr Wong on 6 September 2010. The worker responded that "I told him that I was having nightmares, I was having panic attacks; that I was not having enough sleep; that I was very worried about my future in my job because I had been happy in it, though it was a very good job, and that Mr Ingham had threatened to take it away." [T5 - 59]. [77] When asked to confirm that those were the matters conveyed to Dr Wong on that date, the worker agreed that is what he said [T5 - 59]. [78] When advised by Counsel for the Appellant of Dr Wong's contemporaneous notes from the consultation of 6 September 2010, the worker said that he had "understated" his symptoms to Dr Wong [T6 - 27]; that he had not told Dr Wong "the whole truth" regarding his symptoms [T6 - 27, T6 - 28] and that he only came 'completely clean' with Dr Wong regarding his symptoms on 17 November 2010 [T- 6-3]. [79] In a Report to the Self-Insurer of 30 June 2011, Dr Wong stated that on 6 September 2010 the worker "described a number of traumatic encounters with his manager at Toowong Bus Depot when he was verbally abused and felt physically threatened in front of his colleagues which resulted in the following symptoms: (a) Preoccupied thoughts and flashbacks of the traumatic events; (b) Nightmares and disturbed sleeps; (c) Depressed and anxious mood with somatic symptoms of epigastric discomfort, heartburn, palpitation and urinary frequency; (d) Intense arousal of anxiety symptoms when talking about the events or driving close to the place of the traumatic events and (e) social withdrawal." [Exhibit 38]. [80] Dr Wong stated, even though those symptoms were not recorded in his contemporaneous notes of 6 September 2010, that he had an independent recollection of the 6 September 2010 consultation with the worker. He stated: "I recall him telling me the incidents that he had with his manager and he was very emotional at the time when he told me and he was literally shaking all over and he emphasised the point that this was very unfair treatment to him and he felt it to be in a way life-threatening as well because he said he was being threatened verbally and nearly physically ad he was very keen to - to get justice and to resume his work as a bus driver because he enjoys driving very much and he was recommended as a good driver only a very short time before this incident happened so he was very upset about that" [Exhibit 38]. -- 15 of 31 -- 16 [81] Dr Wong said that he could not recall how the worker presented on that day, but "on the 6th of the 9th he did mention to me about it but I do not believe that he was very, very upset at that date - on that date - but later on he was." [T7 - 24]. [82] When further questioned by the Appellant concerning his 'independent recollection' of the consultation of 6 September 2010, Dr Wong stated that he was giving his evidence on that point by referring to his later clinical notes of 20 May 2011 [T7- 17, 18]. [83] The Report also notes the worker's past history of reactive depression with excessive alcohol use associated with a failed business venture and relationship strain. Dr Wong stated that the worker had fully recovered from those episodes around 12 months prior to his bus traumas. [84] In a further Report to City WorkCover dated 24 January 2013, Dr Wong states that the worker, between 6 September 2010 and 25 November 2010, had shown an increase of anxiety symptoms including insomnia, epigastric discomfort and palpitation which he related to the unreasonable and abusive treatment by his manager. [85] By May 2011, Dr Wong believed that the worker's symptoms were more severe and "PTSD-like". Dr Wong believed that the worker had an ongoing incapacity as a result of his injury. Trauma therapy was recommended and the treatment would last for at least 6 months and referral to a psychiatrist would be considered if his improvement started to plateau or if medication was to be considered. Dr Kraushaar's Evidence [86] Dr Kraushaar, Registered Psychologist (with a particular interest in trauma therapy), had previously seen the worker prior to the events of 3 September 2010. [87] Dr Kraushaar's clinical notes from his consultation with the worker on 6 September 2010 refer to issues the worker was experiencing with Bus 1520 and the worker's reaction to the meeting of 3 September 2010. Dr Kraushaar stated that the worker's stress levels were very high, and in fact "significant", at that time. [88] Dr Wong had seen the worker first on 6 September 2010 and his contemporaneous notes of that consultation do not identify the same "very high" and "significant" levels of stress being experienced by the worker. [89] These views were repeated in Dr Kraushaar's report to the self-insurer on 25 February 2013. Together with the diagnosis of adjustment disorder with elevated stress, anxiety and depression, Dr Kraushaar reported a secondary diagnosis of post- traumatic stress [Exhibit 41]. [90] Dr Kraushaar's evidence was based upon the self-reporting of workplace events given by the worker. For example, Dr Kraushaar states that "Mr Gynther reports he thought the bus was going to roll and he was going to die and lose some of his passengers." Dr Kraushaar also stated that the worker had reported five specific bus incidents to him regarding Bus 1520 and other 1500 series buses. The worker's -- 16 of 31 -- 17 statement to Dr Kraushaar concerning the bus incident on 14 April 2010 was as follows: "I was driving about 60 passengers to UQ along Swann Rd Taringa, and was braking gently for the downhill approach to the Gailey Road roundabout. The brakes come on sharply in successive jabs, (not driver activated) and with a loud noise. Several passengers cried out in fright. I called out, "that wasn't me! Something's not right." He remembers hearing passengers screaming and crying. This grabbing of the ABS brakes made the bus suddenly lurch to a near stop in sudden jerking movement. Again Passengers were frightened and yelling out in shock." [Exhibit 41]. [91] Also Dr Kraushaar's report comments upon the worker's account of what happened on 3 September 2010: "In September 3rd 2010 these incidents involving No1520 bus, Mr Gynther was travelling in the dark, and noticed the lights on the bus seemed to be ineffective in some instances, thus he was driving blind around corners and roadway islands, Again, Mr Gynther felt unsafe regarding the maintenance jobs of the BCC garage. Again he reported these incidents to Mr Ingham and BCC and was attacked and abused in a meeting, and told by Mr Ingham (quote) he (Mr Gynther) "would be managed out of his job." [Exhibit 41]. [92] From the evidence before the Commission, the abovementioned incident did not arise for discussion at the meeting on 3 September 2010 between the worker, Mr Ingham and others. Dr Kar's Evidence [93] Dr Kar, Consultant Psychiatrist, undertook an independent psychiatric assessment of the worker and provided his Report to the self-insurer on 22 July 2011 [Exhibit 11A]. This Report was followed by another dated 12 January 2013 [Exhibit 11B]. [94] Dr Kar had a consultation with the worker and also had the benefit of viewing a large amount of documentation concerning the worker, including e-mails and reports from various respondent management persons involved with the worker and various statements from the worker to management [Exhibit 11(a)]. [95] Dr Kar's report is as follows.  The worker provided similar information to Dr Kar as had been provided to Dr Wong and Dr Kraushaar;  In describing his symptoms to Dr Kar, the worker referred to shakes and panic attacks, being tearful and weeping and that he could not stop thinking about the meeting of 3 September 2010;  Dr Kar made particular reference to the worker's alcohol intake. Dr Kar stated that in his opinion "Given his regular alcohol use of approximately two drinks, six days a week, I consider his use of alcohol to be hazardous and harmful. I have not made the specific diagnosis of Alcohol Abuse, though it may possibly apply" [Exhibit 11A - page 8]; -- 17 of 31 -- 18  Dr Kar's views regarding the worker's alcohol use was not accepted by Dr Cantor whose opinion was that the worker was using alcohol within accepted guidelines. It should be noted that there had been reference made of the worker's "extreme alcohol" intake by Dr Wong prior to the events of September 3 2010, but that issue seemed to resolve itself some twelve months prior to September 2010 [see Exhibit 34].  Dr Kar, while stating that the worker was distressed by the termination of his job said that, "he was preoccupied by the matters, but he was not psychiatrically disabled. He may not be safe in some tasks like driving, because of his emotional state. He may make errors because of distraction and poorer concentration. I believed his distress would reduce after validation or closure. Even though not receiving closure may be painful, eventually I expected that he would be able to move on" [Exhibit 11A - page 7];  Dr Kar also commented that "Perhaps he was overly concerned about safety issues, which probably led to the complaints of harassment";  Dr Kar believed that the main stressor for the worker was the loss of his employment and income. He stated that the worker did not meet criterion A(1) for the DSM-1V diagnosis of PTSD. Dr Kar further stated that the worker had 'symptoms' of an Adjustment Disorder, but did not meet the DSM-1V requirement of severity threshold criteria for the diagnosis of a current, active Adjustment Disorder. The worker was "distressed that he was denied continuing his work in a job that he enjoyed doing. He believed he had performed safely and well in that job" [Exhibit 11A];  Dr Kar referred to the "significant imbalance of power between Mr Ingham and Mr Gynther" and stated that the issues with Mr Ingham had caused him nothing other than temporary distress. [96] Overall, Dr Kar stated that the worker's employment was a significant contributing factor in causing his distress - for example, the loss of his employment and temporary periods of distress following the alleged aggressive behaviour of Mr Ingham towards him at meetings. Dr Cantor's Evidence [97] Dr Chris Cantor (Psychiatrist) provided a report on 7 March 2013 [Exhibit 40]. [98] The worker had detailed the work events which he believed causative of his medical condition to Dr Cantor and Dr Cantor's view was that the worker was not inclined to exaggerate his symptoms [T7 - 28]. [99] Dr Cantor diagnosed the worker with a Chronic Adjustment Disorder with anxiety and depression. [100] Dr Cantor's first consultation with the worker occurred in January 2013. Dr Cantor's report was dated 7 March 2013. Dr Cantor had recorded the worker's history of work events similarly to the evidence the worker had provided in evidence to the Commission and other medical practitioners. [101] Dr Cantor stated that the worker had provided "excessive detail" of events. -- 18 of 31 -- 19 [102] Dr Cantor undertook a psychiatric inventory [Beck Depression Inventory). The result from that testing was that his score of 15 suggested "borderline elevated" levels. His DASS21 scores for stress was 22 (moderate); anxiety 16 (severe), and depression 8 (normal). Dr Cantor recorded the worker's alcohol usage questionnaire (AUDIT) score as 9 with the threshold for medical concern being 8 or more. [103] In considering the reports from other medical witnesses, Dr Cantor noted that Dr Wong had diagnosed post-traumatic stress disorder and considered that this was work related. Dr Wong had believed that this condition was the result of unreasonable actions of his manager delivered in an unreasonable manner. [104] Having made the original diagnosis of an adjustment disorder, Dr Cantor noted that Dr Wong stated that the worker's symptoms were more severe and "PTSD like". [105] Dr Cantor had noted Dr Kar's commentary on the worker's "harmful alcohol abuse". Dr Kar had reported that the worker was drinking 12 drinks weekly. Dr Cantor stated that 28 drinks weekly represented the upper limit of low risk drinking for males. Dr Cantor believed that the worker was drinking well within safe recommended drinking levels. Dr Kar had also referred to the worker's use of benzodiazepine, but Dr Cantor pointed out that Dr Kar's earlier report referred to the worker only having taken a total of three Valium tablets since commencement on the previous Monday. [106] Dr Cantor had also made reference to Dr Kar's comments that the alleged bullying of the worker by Mr Ingham, if accepted, did not cause the worker to not function at work. However, Dr Cantor believed that the comment was inconsistent with Dr Kar's earlier commentary that the worker "may not be safe in some tasks like driving, because of his emotional state". [107] Dr Cantor also questioned Dr Kar's suggestion that the worker was 'overzealous' in his safety reporting, but stated that Dr Kar had not referred to any of the incidents which had occurred to the worker - i.e. safety issues concerning the bus he was driving. [108] Dr Cantor in his report, under the heading of "History relative to the development of his condition" stated that: "Mr Gynther developed a wide range of anxiety and depressive symptoms coloured by obsessional rumination about bus safety issues, management injustice and the threat to his previously contended bus driving. (Note, perfectionist individuals cf. extreme athleticism, are highly prone to obsessional worrying with life problems)." [109] Dr Cantor stated that the worker's initial functioning in the early stages of his driving appeared to have been well within normal limits, with the worker enjoying his job. However, as a consequence of recurrent incidents relating to safety and alleged "unprofessional hostile treatment" by his manager, his mood and symptoms appear to have been compounded. -- 19 of 31 -- 20 [110] Dr Cantor said it appeared to be clear that the predominant stressors giving rise to the worker's psychological condition "have been his work related problems including both recurrent safety concerns and seemingly unreasonable management action." [111] Dr Cantor, when considering Dr Kraushaar's diagnosis of adjustment disorder and "PTSD-like" symptoms stated that "it is the case that workplace bullying is not uncommonly associated with "PTSD like" symptoms and of course Mr Gynther's bus incidents as described in immaculate detail by Dr Kraushaar were potentially life threatening not only to himself but to his passengers." [112] Dr Cantor stated that the worker's employment remained a significant contributing factor to his condition as of 22 June 2011. Consideration of Evidence [113] The Appellant in final submissions has stated that: a. "The overwhelming weight of evidence supports the view that the worker did not suffer a psychiatric injury precipitated by events occurring in the meeting with Mr Ingham and others on 3rd September 2010, or alternatively. b. If the Commission comes to the view that the worker did suffer symptoms sufficient to amount to an injury precipitated by events in that meeting, then a fair assessment of all of the evidence establishes that all that occurred was that the Applicant was given fair but forceful warning that his future employment would be in jeopardy unless his until then unsatisfactory work performance improved. In all of the circumstances, the evidence established that this amounted to reasonable management action." [114] It has been accepted by the Commission that in order to understand the claimed significance of the meeting on 3 September 2010 and the assertion that this was causative of the worker's injury, it is necessary to understand the issues which led to that meeting. [115] The Commission has accepted that the worker has relied upon the second meeting of 3 September 2010 and Mr Ingham's interaction with him as being causative of his injury. To that end the background information has provided a context within which to view the events of the second meeting. [116] In the worker's early stages of his traineeship, it was noted by the Appellant that he appeared to be a "keen" and "exuberant" worker who was also a prolific memo writer. [117] However, over time, the Appellant stated that the worker had submitted approximately 700 complaints to the NCC causing disruption and frustration to depot garage staff. That approximate number of complaints or enquiries to NCC was not challenged by the Respondent [Exhibit 5]. -- 20 of 31 -- 21 [118] The number of complaints/concerns/enquiries made by the worker over such a short period of time were, from any perspective, extreme and would, as a matter of common sense, cause frustration and anger on the part of any regular recipient. It must be borne in mind that the worker was undertaking a traineeship with the Appellant. [119] The Appellant had become aware that the worker had consulted outside authorities (i.e. the Queensland Police Force or Queensland Transport) purporting to act on behalf of the Appellant regarding concerns about safety issues. This act on the worker's part shows, in my view, a complete lack of insight into his role with the Appellant - i.e. that of a bus driver undertaking a traineeship and Mr Ingham's evidence that these events were the catalyst which caused the relationship to change markedly are understandable in the circumstances. [120] The evidence and documentation provided by the Appellant in this matter also shows predominantly that the Appellant responded to these complaints/concerns/enquiries in a professional manner. In fact, the evidence shows that the Appellant responded to some safety issues by making contact with various manufacturers - in order to alleviate some of the concerns being expressed by the worker. There is no question that the responses from the Appellant in dealing with many of these issues was more than tolerant. The Appellant appears to have taken every step it could in the early days of the employment relationship to assist the worker with his myriad of complaints and concerns. [121] On a number of occasions the Appellant spoke to the worker advising him that he should be concentrating more upon his traineeship and leave the garage mechanics to perform their duties. The correspondence shows that the worker was appropriately, in my view, reminded of his duties. [122] As matters progressed, the primary issues in contention for the worker related to Bus 1520. There appears to have been four issues relating to this bus spanning a time period from 27 January 2010 through to 1 September 2010. [123] The first incident (27 January 2010) initially appeared to be uncontroversial. There was a problem with the back axle of the bus and this was rectified. However, the worker's report to Dr Kraushaar was that "he thought that the bus was going to roll and he was going to die and lose some of his passengers." Also stated by Dr Kraushaar "that passengers were visibly upset and crying as they got off the bus." [Exhibit 41 - 1.3.2]. It is difficult, in light of the event that occurred, to accept the worker's evidence that he was fearful of passengers dying. In my view, the worker's version of events given to the psychiatrist was an extreme overstatement and exaggeration of the event. I have formed this view on the basis that there was no reporting by the worker to management of the situation regarding the passengers on the bus. [124] Concerning the second issue (14 April 2010), the worker's evidence around this matter raises further questions of credibility on his part. His evidence was that passengers were screaming after having been thrown out of their seats and forwards up to the windscreen because of problems associated with the ABS braking on Bus 1520. One would have expected considerable documentation to have been generated by both the worker and the Appellant concerning this issue. One might -- 21 of 31 -- 22 also have expected complaints from passengers on the bus, especially if they were screaming and being thrown towards the windscreen. But no documentation from either side has been presented to the Commission regarding these issues which leaves one highly skeptical that the event occurred as described by the worker. I have accepted that there was an issue with the bus but that ramifications of that event did not involve life threatening issues for the driver and his passengers. In my view, this was a case of gross exaggeration and/or embellishment on the worker's part. [125] In cross-examination, it was confirmed by Dr Cantor that he had acted upon Dr Kraushaar's report with regard to this description of the event given by the worker to him. [126] The worker stated that he did not submit a defect report with regard to this issue as he believed that Mr Manning would do so. [127] After this incident, the bus was returned to the NCC and again looked at by mechanics. As well, the Appellant arranged for its mechanical employees to explain to the worker how the ABS braking system worked on Bus 1520. It is clear from the evidence that the worker was given extra training in using that braking system. [128] At this time, the Appellant stated that no other driver had any issues with driving Bus 1520. It appears as if it was only the worker who was having any issues of note with Bus 1520 (with the exception of Incident 4). However, in response to that, the Appellant again undertook a process of further instruction being given to the worker so that he had a full appreciation of how the ABS braking system worked. This again highlights the fact that the Appellant went to considerable lengths to accommodate the worker's concerns. [129] On 4 May 2010, the worker stated that a similar incident had occurred with the ABS brakes on Bus 1520. NCC were advised by the worker but he believed that he had been 'fobbed off' by Mr Manning who had not recorded the incident. [130] However, the Respondent states that there is an Exhibit [Exhibit 30] which showed that there had been an issue concerning "brakes banging and holding on" on the same bus but that it had been made on 11 May 2010. The Respondent asks the Commission to accept that this entry conforms to the description given by the worker on 4 May 2010. This could be the case but I am unable to draw any conclusion other than that there is no record of the incident recorded on Form A for 4 May 2010. [131] The fourth incident with Bus 1520 occurred on 1 September 2010. The evidence shows that the bus had stopped on a downhill slope in Bardon. The worker claimed that he tried all he knew to get the bus started but that it would not start. [132] The evidence adduced from Mr Cottrell confirms that an event had occurred on that day with the worker and Bus 1520. I have accepted that evidence to the extent that it was clearly evident that something had happened to the bus and that this caused the worker distress. -- 22 of 31 -- 23 [133] That the worker was apprehensive about continuing to drive the bus is reasonable. The worker maintains that the NCC tapes of the conversation recorded at the time should have been made available to him as this would show that ultimately the worker was told to go home by NCC. [134] The worker was adamant that he had not refused to continue working on that day. He had simply refused to drive that bus. His evidence was "I'm not refusing to do the work. I just request a reliable bus. Give me any other bus and I'll finish my shift". [135] The evidence around this point may well be a case of mixed messages being passed between the worker, those attending the incident and those at NCC. It appears that the worker did not want to drive the bus any more, but was prepared to drive another bus to finish his shift. In the flurry of activity and with the worker being distressed it is not unreasonable in my view that NCC may have formed the opinion that the worker was refusing to continue driving. [136] During the hearing of this matter, the events which were being considered had occurred some three years prior to the hearing. Witnesses often stated that they could not recall particular events, or nuances and/or actions and, in my view, that is not unreasonable in the circumstances and particularly so because there were two meetings on 3 September 2010. [137] The first meeting on 3 September 2010 related to 'performance and disciplinary' matters that the Appellant raised with the worker. A memo sent to the worker on the 2 September 2010 had stated that he "was welcome to invite a representative of your choice to attend this meeting with you". Out of that meeting, the worker was told by Mr Brooks that if further monetary issues arose the worker would be issued with a further warning. [138] It was the second meeting on 3 September which the worker claimed to have been causative of his injury. [139] Evidence regarding this meeting was given by the worker, Mr Lightbody, Mr Kafka, Mr Ingham and Mr Brooks. [140] In relation to this meeting, the worker's evidence was that at the end of the meeting and as a consequence of what Mr Ingham had said to him, he had "lent over the table … sobbing uncontrollably … I couldn't speak at all". This evidence is not supported by the any other person at the meeting. [141] Further, during the meeting, the worker had stated that "I could not stand. My legs didn't work." [142] The worker's complaint was similar to that made of the first meeting on that day in that he did not have time to organise for a person of his choosing to be present. Mr Kafka's evidence was that he was asked by the worker to attend the meeting. I have accepted that Mr Kafka was asked to attend the meeting by the worker as he had done so previously when he was a Union delegate. Mr Kafka said that the worker had asked him to come to the meetings of 3 September 2010 and he advised him that he couldn't attend as a Union delegate but as a friend. Mr Kafka's evidence -- 23 of 31 -- 24 was that at the first meeting the matter of revenue was raised and he believed that the worker had repaid all monies after the meeting had ended. His memory of the meeting was vague but he recalled that performance issues were raised, however, he believed the bulk of that commentary occurred in the meeting later that day [T3 - 7]. [143] I have also accepted Mr Kafka's evidence that had he been asked to attend the meeting by Mr Ingham and Mr Brooks he would not have done so without a corresponding request from the worker or at the very least his acquiescence. [144] The worker said the issue of revenue arose at the second meeting. His claim was that Mr Ingham called him a 'thief' and that he was going to call the Police and report the worker. This is denied by Mr Ingham and Mr Brooks' evidence was that he didn't recall the events of that day. Mr Brooks explained that due to personal events with his family, he had other matters on his mind around that time and that this was a factor in his not recalling the debate around meetings etc. In light of Mr Brooks' evidence on this point, that explanation is accepted. [145] However, on the issue of 'revenue', the evidence was clear. The worker was under instruction that whilst driving the bus and taking money from passengers, he was not to put his own money into the mix. He was told not to do this, he was given extra training which involved having a person with him on the bus to instruct him in how to manage his float and those passengers who had larger denominations of money. It is understandable that the Appellant was annoyed when it found that the worker owed money back to it as a consequence of not following repeated instructions. [146] At the time of the second meeting on that day, Mr Kafka said that the worker had asked both he and Mr Lightbody to attend the meeting with him. Both the worker and Mr Lightbody reject that assertion but I have accepted Mr Kafka's evidence on that point. Mr Kafka's recollection was that the worker was given a "bit of a lecture about paying in and following policies and procedures". He believed that both Mr Ingham and the worker became "quite excitable" - they were both loud. [147] Mr Kafka recalled a discussion occurring around why the worker had not wanted to continue driving the bus on 1 September 2010. Mr Kafka said he had recorded notes in his diary at that time. These notes were not called for. [148] Mr Kafka did not believe either Mr Ingham or the worker got to the point where he felt he should intervene. He said this would have occurred if the discussion had become 'out of hand' [T3 - 4]. [149] Mr Kafka believed that the worker said words to the effect that Mr Ingham "wasn't a good manager and didn't know what he was doing" [T3 - 4]. Mr Kafka said that Mr Ingham responded with words to the effect that "he could manage Trevor out of a job so – the exact words, probably not precisely" [T3 - 5]. [150] Mr Kafka said, from his knowledge of having been a Union representative at the depot, that Mr Ingham always followed the same procedure when dealing with issues relating to money. He said the practice had been that Mr Ingham would have arranged to have the matter investigated prior to drawing any conclusions. -- 24 of 31 -- 25 [151] Mr Kafka claimed that because of the nature of the discussion between Mr Ingham and the worker it was difficult for him to recall words used and gestures made by Mr Ingham. He stated that it could have been the case that Mr Ingham said he would call the Police and that he banged his fists on the table. At that time in the meeting, what Mr Kafka did recall with some degree of particularity was that both the worker and Mr Ingham were engaged in over-reactive and excitable behaviour. [152] While Mr Kafka thought it might be possible that Mr Ingham told the worker that he was receiving complaints about him all the time, Mr Kafka had no recollection of Mr Ingham telling the worker he was 'stupid'. [153] What was proposed was that the worker was going to be given training on the ticket machines and he was going to have a trainer who could monitor his performance. He believed that the worker was content with that outcome. [154] Mr Kafka viewed Mr Ingham's comment about being managed out of a job as being 'retaliatory'. He stated that "you're not told that you're a bad manager without taking some offence to that, I mean - and I just assumed that that was his mode of defense. He just said I'm going to manage you out of a job." Mr Kafka was of the view that the main thrust of Mr Ingham's message to the worker was that he wanted the worker to improve his performance. Mr Kafka believed that Mr Ingham had made that point quite clearly to the worker. [155] Mr Kafka said that it was he who had asked for the NCC tapes to be 'pulled' to enable all to hear what was said by the worker and others as to whether the worker went home of his own accord or whether NCC had sent him home on 1 September 2010. He denied that the worker had asked for the tapes as he would not know anything about the tapes, whereas Mr Kafka had asked for tapes to be 'pulled' before. Whatever the situation regarding the NCC tapes, they were not produced to the Commission by either party. [156] Mr Kafka did not believe that Mr Ingham was being aggressive - rather that he was being forceful and trying to put across his opinion and what his expectations were. [157] Mr Kafka did not recall Mr Ingham telling the worker to 'shut up'. He says that he would have remembered that happening. [158] Mr Lightbody had provided a Statutory Declaration on 18 August 2011 concerning the meeting of 3 September 2010. The Appellant states that there are notable inconsistencies in that statement and Mr Lightbody's evidence in this hearing. In his Statutory Declaration, Mr Lightbody had not mentioned anything about Mr Ingham phoning the Police. [159] Mr Lightbody's evidence was that he attended the second meeting on 3 September 2010 with Mr Kafka. Mr Lightbody says he was asked by Mr Ingham to attend the meeting. Mr Lightbody said that Mr Ingham had called the worker "stupid" in relation to the worker not knowing who had made complaints about him. [160] Mr Lightbody had not seen the worker crying or 'shaking' at the meeting. Also he had not seen Mr Ingham feign a phone call to the Police although a reference to the Police was made by Mr Ingham. -- 25 of 31 -- 26 [161] Mr Lightbody believed that Mr Ingham was talking to the worker in a raised voice when he discussed the issue of revenue. [162] Mr Lightbody noticed that Mr Ingham had spoken over the top of the worker on occasions. Mr Lightbody stated that Mr Ingham had yelled at the worker and told him that he was going to manage him out of a job. Mr Lightbody's evidence was that he was very surprised at what had occurred in the meeting. [163] Regarding this meeting, in summary, Mr Lightbody's evidence was that "And the meeting progressed in that sense with, once again, Ingham trying to get across to Mr Gynther - and I accept fairly emphatically and fairly directly - that unless his performance improve - you know, his future prospects, his job could be in doubt." [T8 - 31, 35]. [164] I have accepted that evidence as representing a relevantly factual account of the meeting. [165] Mr Ingham's evidence was that he believed that the worker was 'at the absolute end of the road' and he needed to see some improvement in the worker's performance. He found it hard to get through to the worker and he became very direct and 'candid' when addressing him. [166] Mr Ingham said that he discussed the revenue issue with the worker and his "harassment of staff". He had found the worker's behaviour akin to the worker "allocating work to the admin team … can you find out about this? … can you find out about that? ... can you find out about this? It was relentless." [167] Mr Ingham stated that he had repeatedly told the worker how to manage his till on the bus. He said it was simple "Take the $50, put the rest in". Mr Ingham had felt that he could never get his message across to the worker. [168] Mr Ingham agreed that he was passionate when he talked and that he had a loud voice. He likened getting through to the worker as "trying to break the code with this guy". [169] Mr Ingham said that the worker's responses to all that was being put to him was that the worker wanted to relive and re-argue all of the events yet again. [170] Mr Ingham denied telling the worker that he was going to manage him out of his job, but he stated that he would have been trying to impart to the worker the seriousness of the position he was in. In cross-examination, Mr Ingham said any reference to the worker's continuing employment was set against a backdrop of attempting to explain to the worker that the consequence of his actions - i.e. "I think you're twisting the context of what I'm saying because there was a lot more to that than Trevor, if you don't do what I say, I'm going to manage you out of a job. That - I did not say that like that. It would've been a long spiel about this is where we're at, this is what I need you to do, these are going to be the consequences of your actions, not what I'm going to do. The consequences of your actions, unless we can do that and that's where I -- 26 of 31 -- 27 would've bought in the management comment as far as what our role is in that process. So I do dispute that it was said in that context because that just didn't happen" [T4 - 12]. [171] Considering all of the evidence, and having taken into account that the event (3 September 2010, second meeting) occurred some three years ago, I have formed the view that the evidence around the background leading up to this meeting fairly establishes that:  I have accepted Mr Ingham as being a truthful witness.  There was justifiable frustration on the part of the Appellant with regard to the worker's performance and issues surrounding his numerous complaints and enquires which were, in my view, over and beyond what would be considered acceptable;  There were genuine concerns on the Appellant's part concerning the worker and his making contact with outside authorities with regard to his work, purportedly on behalf of the Appellant;  That the worker had embellished his version of events with regard to the bus incidents cited. In terms of the event on 1 September 2010, I accept that an incident had occurred with Bus 1520 but that the worker's response to that was an over-reaction on his part;  That the worker had not complied with the requirements of the Appellant concerning revenue issues;  That the Appellant had instructed and assisted the worker in all aspects of his concerns and enquires regarding safety matters with buses to a level of assistance not often seen or contemplated elsewhere;  That the worker was told repeatedly that he should leave the Appellant's mechanics to perform their duties without having to respond to his every query;  The number of queries/complaints/concerns which had been expressed by the workers were extreme. In saying this, I am aware that the Appellant encouraged employees to raise issues with them concerning safety and other matters. However, the worker's reaction to this invitation was extreme. [172] With regard to the meeting of 3 September 2010, the worker states that the period of notice given him was not sufficient for him to have obtained a support person of his choosing [Exhibit 7]. [173] A warning issued from the Appellant to the worker out of the first meeting of 3 September 2010. This meeting addressed the issues of further training regarding the ABS braking system and revenue. They were issues clearly involving the worker and the Appellant which had been repeatedly ventilated before and I do not believe that the worker could have been taken by surprise at the content of the meeting. [174] Likewise for the second meeting on 3 September 2010. I accept that more information should have been relayed to the worker concerning this meeting but I also accept that the worker would have been under no misapprehension as to the concerns repeatedly raised with him by the Appellant. Under normal circumstances, it may be considered unreasonable for the Appellant to confront the worker with two meetings on the one day. However, in the discrete circumstances of this case it is -- 27 of 31 -- 28 my view that the Appellant was required to address issues with the worker which had continued for so long and showed no signs of reaching any finality. The culture of complaint by the worker required strong and definitive attention by the Appellant. [175] Yet again, I would be surprised if the worker was unaware of the Appellant's concerns about persistent issues concerning him at the depot. [176] In terms of the evidence given regarding this second meeting, I have formed the following views:  That Mr Ingham behaved in an aggravated manner, raising his voice when addressing the worker;  I have also accepted that the worker continued to argue the same points over and over again and that his behavior was also excitable and heightened;  I have also accepted Mr Kafka's evidence that the worker challenged Mr Ingham's capabilities as a manager and that the response made by Mr Ingham was retaliatory in nature. Within that context I have accepted Mr Kafka and Mr Ingham's evidence over and above the evidence of the worker and Mr Lightbody;  I have accepted Mr Ingham's evidence that it was difficult to "get through" to the worker and that the worker wished to continue and revisit all of the issues when all of those matters had been addressed on an ongoing basis;  I accept that Mr Ingham cut the worker off from speaking on occasions;  I have accepted Mr Ingham's version of events around the question of whether or not he told the worker that he would manage him out of his job. In my view, from considering all of the evidence, there was a discussion about the ramifications of the worker's behaviour and how his employment could come to an end if he continued to behave in the manner in which he did;  I have not accepted the worker's evidence that he was sobbing uncontrollably at the time but I have accepted that he was upset;  No witness involved in this meeting corroborated the worker's version of events on that point. [177] The medical evidence is largely influenced by the report that the worker had given to Dr Wong, Dr Kraushaar and Dr Cantor concerning safety issues with Bus 1520. [178] As I have found the worker's version of events around the question of the buses generally were exaggerated and embellished, one has to consider the medical reports within this context. [179] Dr Wong was the first medical practitioner seen by the worker after the 3 September 2010 incident. [180] His notes show that at the commencement of the consultation, the worker was concerned about obtaining licenses for the use of his gun and pilot license. Next, the worker appeared to be slightly distressed at the events at work, but no more at that point. Dr Wong's evidence that he had an independent recollection of his consultation with the worker on 6 September 2010 which went far and beyond his -- 28 of 31 -- 29 contemporaneous notes taken on that day were later corrected by evidence that he had relied on in later consultation to form that view. I have accepted that Dr Wong's notes of 6 September 2010 correctly report the nature of that consultation. [181] The next report is from Dr Kraushaar. The worker visited him on 6 September 2010 after receiving a referral from Dr Wong. Dr Kraushaar then saw the worker on 11 November 2010 and 8 December 2010. [182] The worker had reported various incidents to Dr Kraushaar concerning Bus 1520. On the First Incident, the worker said he believed that the bus was going to roll and he was going to die and lose some of his passengers. [183] Dr Kraushaar continued to say that there were five specific incidents with Bus 1520 and other 1500 BCC buses. [184] Regarding the incident of 14 April 2010 with Bus 1520, Dr Kraushaar says he was advised by the worker that he: "was driving about 60 passengers to UQ along Swann Rd Taringa and was braking gently for the downhill approach to the Gailey Rd roundabout. The brakes come on sharply in successive jabs, (into driver activated) and with a loud noise. Several passengers cried out in fright. I called out "That wasn't me! Something's not right." He remembers hearing passengers screaming and crying. This grabbing of the ABS brakes made the bus suddenly lurch to a near stop in sudden jerking movement. Again passengers were frightened and yelling out in shock." [185] This version by the worker to Dr Kraushaar was slightly different from the one now presented where passengers were flying towards the windscreen of the bus. [186] On 4 May 2010, the worker advised Dr Kraushaar that he was driving downhill when he stated that the ABS braking system malfunctioned. He told Dr Kraushaar that: "passengers started screaming and crying out, as bags were thrown from the racks, passengers were thrown out of their seats into the aisles, as the bus continued travelling downhill when maximum braking. Mr Gynther reports he thought the bus was going to roll and he was going to die and lose some of his passengers too. If Mr Gynther used the brake gently it grabbed again, throwing passengers about." [187] In this incident, the worker also told Dr Kraushaar that the bus nearly rolled several times. He further reported: "Finally the bus came to a flat section and Mr Gynther was able to slow the bus and glide the vehicle into the saddle of the road. Passengers were crying, and yelling, as he opened both doors and told passengers to get off this 1520 bus. Mr Gynther immediately reported back to base. He stated they seemed miffed that he would ask for a replacement bus. This was a terrifying ordeal, which Mr Gynther tells he thought he and some of the passengers were going to die." -- 29 of 31 -- 30 [188] There is nothing comparable in Appellant notes or documentation or reports from the worker to the Appellant which match anything like what the worker was describing to Dr Kraushaar. The Commission was not provided with any documentation, reports, or copies of complaints from passengers that events so described by the worker actually happened. [189] I have accepted that incidents with Bus 1520 occurred but not to the extent that the worker reported to medical practitioners. [190] It is not the case that the worker's concerns were not being listened to by the Appellant. As previously referenced, the Appellant went to great lengths to attempt to assist the worker in his understanding of the workings of Bus 1520. [191] Doctors Wong, Kraushaar and Cantor have determined that the worker suffered an injury "Adjustment disorder with elevated stress, anxiety and depression levels." [192] I have accepted the medical evidence to the extent that the worker has an injury so described above and that work was a significant contributing factor to the injury. In saying that, I am mindful of the fact that the worker's reports to those doctors of the events causative of his injury were extremely exaggerated (s 32(1) of the Act). It is acknowledged that medical practitioners rely upon the history given to them by those with whom they consult in the absence of any other material or reports which might assist in forming a diagnosis. [193] Upon the question of whether action taken by management was reasonable and whether it was taken in a reasonable way, I have found that the management action was reasonable and that it was taken in a reasonable way (s 32(5)(a) of the Act). [194] There were blemishes in the Appellant's management action in terms of the 3 September 2010 meeting. The Appellant could have been more precise in terms of the matters it wished to put to the worker. However, I have not accepted that the worker was 'blindsided' by the content of the meetings given his ongoing and extreme history with the Appellant (Refer paragraph 129). [195] The second meeting of 3 September 2010 was conducted in a loud, assertive and "excitable manner" by Mr Ingham and I have also accepted that the worker responded similarly on occasions. But at no stage did anyone see the worker in the distressed state (i.e. crying uncontrollably) in which he described himself. [196] The evidence which I have accepted showed that the worker was yet again arguing the point with Mr Ingham, although I have accepted that Mr Ingham on occasion spoke over the top of him. I also acknowledge the fact that there was a power imbalance between the worker and Mr Ingham, but given the endless complaints made by the worker over a period of time, and the fact that he had sought to take issues concerning the Appellant outside of the workplace to other authorities, I do not accept that the worker could be unduly surprised by the meeting and its content. [197] It was a lively and heated meeting but I have accepted that had the meeting got out of hand to the extent described by the worker, then others in the room including bus -- 30 of 31 -- 31 drivers would have raised a concern. I have accepted Mr Kafka's evidence as being accurate and also specifically on this point. [198] I have accepted that the worker was upset by the meeting but I have also accepted that it was a meeting that ultimately had to occur in order for the Appellant, who was understandably at the end of its tether, to remind the worker, in forceful terms, that his performance and attitude had to improve significantly for him to be retained in the workplace. [199] On 17 November 2010, the worker was suspended on full pay and steps were taken to cancel his training contract [T6-32]. [200] Pursuant to s 32 of the Act I have found that the worker sustained an injury during the course of his employment and that employment was a significant contributing factor to the injury. However, pursuant to s 32(5)(a) I have found that reasonable management action was taken by the employer in a reasonable way. The exclusionary provision in s 32(5)(a) precludes the injury from being compensable. [201] I order that the Appeal be upheld and further set aside the decision of Simon Blackwood (Workers' Compensation Regulator). The Regulator is to pay the Appellant's costs. -- 31 of 31 --