Abbott v Blackwood [2014] ICQ 31

INDUSTRIAL COURT OF QUEENSLAND CITATION: Abbott v Blackwood [2014] ICQ 031 PARTIES: WINSOME ABBOTT (appellant) v SIMON BLACKWOOD (Workers’ Compensation Regulator) (respondent) CASE NO: C/2014/8 PROCEEDING: Appeal DELIVERED ON: 21 November 2014 HEARING DATE: 3 July 2014 MEMBER: Martin J, President ORDER/S: The appeal is dismissed. CATCHWORDS: WORKERS’ COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the Commissioner found that the appellant had suffered a psychiatric injury – where the Commissioner found that the injury was excluded from the definition of injury as the matters raised in a meeting said to be causative of the injury were reasonable management actions taken in a reasonable way in connection with the appellant’s employment – whether the Commissioner failed to take into account matters which, when considered with the balance of events, made the conduct and content of the meeting unreasonable management action Workers’ Compensation and Rehabilitation Act 2003, s 32(1), s 32(5) CASES: Cameron v Q-Comp (C/2011/22) – Decision <http://www.qirc.qld.gov.au> Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 APPEARANCES: K F Watson, for the appellant, instructed by Susan Moriarty & Associates S P Sapsford, for the respondent, directly instructed by the Workers’ Compensation Regulator -- 1 of 14 -- 2 [1] The appellant claims to have suffered a psychiatric injury as a result of the conduct of her fellow employees at a meeting on 28 July 2011. Her appeal to the Commission was dismissed on the basis that, while she had suffered an injury, she had not established that the psychiatric injury was not excluded from the definition of injury in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) by the provisions of s 32(5) of that Act. The Workers’ Compensation and Rehabilitation Act 20031 [2] An injury, for the purposes of the Act, is defined in s 32(1): “(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.” [3] A psychiatric or psychological disorder is excluded from the definition of injury if s 32(5) applies: “(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker’s application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way— • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment” Dr Abbott’s employment [4] Dr Abbott is a dietician. She commenced permanent employment at the Princess Alexandra Hospital in 1981 and worked there until the meeting of 28 July 2011. Her workload over a five day working fortnight was around 80 inpatients in addition to outpatients and her hours of work were from 8.30 am to 5 or 6 pm. Dr Abbott also undertook work in private practice. She was required, as part of her work, to be engaged at the Adult Acute Psychiatric Unit, at an outpatient facility close to the hospital, and at a geriatric mental health unit. [5] The appellant was also engaged in a research project – the Vitamin B12 research project – which involved data collection performed outside her ordinary hours of work. This was usually done, she said, on weekends. [6] She was one of two team leaders (Dr Vivanti was the other) who reported to Dr Ferguson. 1 The relevant version of the Act for this case is reprint 5E, effective 6 June 2011. -- 2 of 14 -- 3 [7] In the second half of 2010 and the first half of 2011, changes were made with respect to the oversight of research projects and discussions had taken place between the appellant and Drs Ferguson and Vivanti and Ms McKenzie about the appellant’s workload. [8] On 26 July 2011 the appellant was sent by email notice of a meeting to be held on 28 July 2011. She did not open that email on 26 or 27 July as they were not working days for her. Thus, she was unaware of the meeting until she was telephoned by Dr Vivanti at 8.30am on 28 July. The meeting was attended by Dr Lau, Ms McKenzie, Dr Ferguson, Dr Vivanti and the appellant. [9] In the Commissioner’s reasons he gave the following, brief description of the meeting:2 “[26] In further evidence regarding the meeting of 28 July 2011 her evidence was she was first advised of the meeting at 8.30 am that morning when contacted by Dr Vivanti and, as such, was forced to cancel a meeting with a patient. It was not a regularly scheduled meeting and whilst an email with the agenda attached was forwarded to her on 26 July 2011, as the 26 and 27 July 2011 were not work days for her, the mail was not read until after Dr Vivant's (sic) phone call. At the meeting an issue was raised by Lau relating to Dr Abbott's attendance at a Logan Mental Health event, questioning her approval to attend. This matter had not been on the agenda and the ay the matter was handled left her feeling very unhappy about the whole meeting. [27] The meeting was said to have continued in a negative way and became overwhelming and depressing leading to her total breakdown after that meeting. A directive was given to Dr Abbott that any unpaid out of hours work had to be done in business hours which was inconsistent with directives to other people. The governance of her research in to the Vitamin B12 research project was raised with Lau asking Dr Abbott to do a time study so he could be sure they were getting value for money. An offer by Lau to provide support with Dr Abbott's emails seemed patronising and a ‘misjudgement’ of her as the issue had not been raised previously.” [10] The issue which took up most of the Commissioner’s consideration in his reasons was whether or not the appellant had suffered a personal injury within the meaning of s 32(1) of the Act. The Commissioner was not greatly assisted by either party on this issue. The only relevant, medical evidence provided was from Dr Abbott’s treating psychiatrist. He was not providing his opinion as an independent expert. So much is obvious from his reports which are clearly partial. In any event, the Commissioner found in the appellant’s favour: “[135] … I am of the view that, despite my concerns about incapacity, Dr Abbott suffered a personal injury that arose out of, or in the course of, her employment, and employment 2 [2014] QIRC 15, para 26. -- 3 of 14 -- 4 was a significant contributing factor, with that injury being an adjustment disorder.” Notice of appeal [11] The notice of appeal covers a number of grounds. The broadest ground is the contention that the Commissioner erred in finding that the meeting of 28 August 2011 was reasonable management action taken in a reasonable way. The balance of the grounds consists of assertions that the Commissioner: (a) misunderstood the issue about working outside normal work hours; (b) wrongly categorised the matter relating to the appellant’s research project; (c) failed to consider other relevant matters; and (d) failed to give adequate reasons. [12] At the hearing of the appeal, and in the appellant’s written submissions, the appellant’s argument was confined to this – the Commissioner failed to take into account four matters which, when considered with the balance of events, made the conduct and content of the meeting unreasonable management action. [13] The appellant argues that, because the Commissioner failed to take into account relevant material, there has been an error of law such that the decision on the applicability of s 32(5) of the Act should be remitted for further consideration by another member of the Commissioner. The four matters [14] The four matters identified by the appellant are: (a) The Commissioner failed to advert to the “Logan Hospital issue” and so failed to have regard to all the relevant circumstances of the case. (b) The Commissioner failed to deal with the assertion made by the appellant that Mr Lau had said that “some people tell one team leader that the other person had agreed”. (c) The Commissioner failed to address the issue of working outside normal working hours. (d) The Commissioner failed to address the issue concerning the governance of the Vitamin B12 project. What is the duty of a decision-maker in circumstances such as these? [15] The matters to which a member of the Commission must advert have been discussed in many cases. A convenient summary of this area of the law can be found in Minister for Immigration and Multicultural Affairs v Yusuf3 where McHugh, Gummow and Hayne JJ said: “[82] It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) 3 (2001) 206 CLR 323 at 351. -- 4 of 14 -- 5 "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (citations omitted, emphasis added) [16] The claim in this case is that the Commissioner failed to take into account relevant evidence or that he mischaracterised particular questions which needed to be answered. A similar claim was made in Resource Pacific Pty Ltd v Wilkinson4 where Basten JA (with whom the other members of the Court agreed) said: “[9] … It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term ‘constructive failure to exercise jurisdiction’ is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS. On occasion, the function of the decision-maker (which should include a court) has been identified as being to "give proper, genuine and realistic consideration to the merits of the case": Kahn v Minister for Immigration and Ethnic Affairs. (The language probably derived 4 [2013] NSWCA 33. -- 5 of 14 -- 6 from its use in equity to describe the proper exercise by a trustee of a discretionary power in relation to the trust.) Although the nature of the exercise, particularly with respect to discretionary powers, involves no bright-line boundary, care must be taken that the statutory mandate of the appellate court, limited to errors of law, is not breached by adopting as a standard inherently value laden language: see Minister for Immigration and Citizenship v SZJSS.” (citations omitted, emphasis added) [17] Consideration must be given, when an appeal is based as this one is on an alleged failure to take into account relevant matters or a misconstruction of a particular issue, to the duty which a body such as the Commission has to give reasons. The extent of the obligation was considered by McCall JA in Pollard v RRR Corporation Pty Ltd.5 In that case the New South Wales Court of Appeal was considering an appeal from a judgment of the District Court with respect to whether or not the appellants had entered into a particular contract. The principal complaint of the appellants was that the primary judge failed to give adequate reasons. The following can be drawn from her Honour’s analysis at [56] – [67]: (a) a trial judge’s reasons must, as a minimum be adequate for the exercise of a facility of appeal; (b) an appellate court, considering the decision of a tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding; (c) failure to provide sufficient reasons promotes a sense of grievance and denies both the fact and the appearance of justice having been done, thus working a miscarriage of justice; (d) the extent and content of reasons will depend upon the particular case under consideration and the matters in issue; (e) a judge is not obliged to spell out every detail of the process of reasoning to a finding but, it is essential to expose the reasons for resolving a point critical to the contest between the parties; (f) the reasons must do justice to the issues posed by the parties’ cases; (g) it is necessary that the primary judge enter into the issues canvassed and explain why one case is preferred over another; (h) failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her; (i) however, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’; (j) to have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant; (k) a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons; (l) while it is unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial 5 [2009] NSWCA 110. -- 6 of 14 -- 7 judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it; (m) where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to; (n) where there is documentary material arguably supporting a party’s case, that material must be considered in the judge's reasons in a satisfactory way; (o) bald conclusionary statements should be eschewed; (p) it is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other; (q) where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s; (r) because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result; (s) where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried; (t) where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered; (u) if the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial; and (v) in some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge. [18] Of course, when considering whether or not a Tribunal has either overlooked some relevant evidence or misconstrued the issue to be determined, an appeal court must not be quick to apply a critical magnifying glass. I agree, with respect, with what Hall P said in Cameron v Q-Comp:6 “[3] It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz: ‘… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW: 6 (C/2011/22) – Decision <www.qirc.qld.gov.au>. -- 7 of 14 -- 8 ‘It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.’ Over twenty years later, the nuances of meaning carried by the colourful phrase, ‘miscarriage of justice’, render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic, viz.: ‘This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: …The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth).’, continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors, are to the same effect. Footnotes omitted, the passage is: ‘These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’.” (citations omitted, emphasis added) Were the four matters, or any of them, considered? (a) The Logan Hospital matter [19] This concerned Dr Abbott’s attendance at a meeting at Logan Hospital. The meeting concerned the treatment of people in the mental health service at that hospital. Dr Abbott said she attended in her personal capacity. At the 28 July meeting, the broad issue of whether she needed permission to attend was raised. -- 8 of 14 -- 9 [20] Commissioner Thompson reviewed the evidence about, and arguments concerning, this matter in a number of places, including: “[26] In further evidence regarding the meeting of 28 July 2011 her evidence was she was first advised of the meeting at 8.30 am that morning when contacted by Dr Vivanti and, as such, was forced to cancel a meeting with a patient. It was not a regularly scheduled meeting and whilst an email with the agenda attached was forwarded to her on 26 July 2011, as the 26 and 27 July 2011 were not work days for her, the email was not read until after Dr Vivant's phone call. At the meeting an issue was raised by Lau relating to Dr Abbott's attendance at a Logan Mental Health event, questioning her approval to attend. This matter had not been on the agenda and the way the matter was handled left her feeling very unhappy about the whole meeting. … [32] On arrival at the 28 July 2011 meeting, Dr Abbott told Dr Ferguson that she had only just been notified of the meeting, despite a reference to the meeting in an email from Dr Ferguson which had not prompted any enquiry as the meeting "was not a priority" for Dr Abbott. She continued to state that it was an appointment [Transcript p. 3-32]. Dr Abbott did not consider it had been necessary to get approval to attend a mental health meeting in Logan in June 2011, but had contacted Dr Vivanti as a courtesy [Transcript p. 3-34]. Dr Abbott stated that once it was established that Dr Lie was funding and happy to govern the Vitamin B12 research project, there was never any question that he would continue to govern the project [Transcript p. 3-35]. Dr Abbott believed it was Dr Ferguson's intention that items under research would be managed by Nutrition and Dietetics and Mental Health Unit, although she had no awareness about what happened in the workplace after 28 July 2011 [Transcript p. 3-36]. … [70] In relation to Dr Abbott's alleged invitation to the Logan Transitions in Care Working party, she had not completed the appropriate approval process for participation but had simply turned up on the day alleging approval from her Team Leader. … [80] Other matters covered in the submission relating to the 28 July 2011 meeting included:  Dr Abbott's attendance at the Logan meeting on mental health issues as a carer and not an employee and should not have been raised at the meeting;  informing one Team Leader that another Team Leader had agreed to something as a reason to require Dr Abbott to perform a task when the reason was not applicable to her, was unreasonable;  getting value for money from Dr Abbott's 0.5 of a FTE position as raised by Lau was to imply she had not been performing the role to the upmost and was a reprehensible slur particularly as the evidence of Dr Ferguson was that the position was under resourced and a business case had previously been formulated (unsuccessfully) seeking additional resources; -- 9 of 14 -- 10  management of emails was found to be offensive by Dr Abbott because of the way in which it was raised; and  notification of the working of overtime was to be applied to Dr Abbott for out of hours activities in a way more restrictive than applied to other employees. … [107] The meeting of 28 July 2011 was criticised by the Appellant due to the lack of notice received by her, however it was clear she had simply chosen to not check her electronic diary and had ignored the email of 22 July 2011 from Dr Ferguson which alerted to the meeting. Whilst the Appellant contends that this was unreasonable management action taken in an unreasonable way, the facts are she was notified by proper means in a timely fashion and chose to ignore it. [108] On the permission to attend the Logan event following the approval of Lisa Appleyard (Appleyard), the failure to call Appleyard allows for a negative inference to be drawn in the circumstances (see Jones v Dunkel). Overall, the Appellant was granted every indulgence she sought.” (emphasis added) [21] In the extracts above, it can be seen that the Commissioner referred to: (a) the matter; (b) the evidence given about it; and (c) the submission made by the appellant. [22] In [108] the Commissioner expresses his view of the circumstances concerning the matter and the way in which it was treated at the 28 July meeting. [23] The Commissioner did not refer to this matter under that part of his reasons entitled “Reasonable Management Action taken in a Reasonable Way” but it is clear from his remarks set out above that he did not regard this matter as an asset to the appellant’s case. As was made clear in Pollard v RRR Corporation Pty Ltd it is unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. That is the case here. (b) “Some people tell one team leader that the other person had agreed” [24] This issue concerned a statement alleged to have been made by Mr Lau at the 28 July meeting. Dr Abbott’s evidence was: “What is another issue that was raised?---Another directive in the meeting was that I was supposed to email both team leaders with any email communication, and Mr Lau said that some people tell one team leader that the other person has agreed. Did he give an explanation as to why he said that? ---No. Did you understand what that was a reference to? ---Well there was no history with anything like that for me. I just saw it as part of this horrible negativism. Well had anyone raised such an issue with you before? ---No. -- 10 of 14 -- 11 Right. Well how did you feel about that, when it was raised by Mr Lau? ---I knew it was wrong. Why? ---Because it was wrong. What was wrong? ---I - that - that wasn't me. I - I'm not that sort of person, and it was an assumption on his part. So how did it affect you? ---I guess you would say it was one of the reasons for the -the total breakdown after that meeting. Right. But at the time, can you recall how it may have affected you? ---Very low. I felt very low.”7 [25] This evidence was not opened by counsel for Dr Abbott. It was not put to either Dr Ferguson or Dr Vivanti that anything of that nature was said at the meeting. Mr Lau, who swore an affidavit for use in the proceedings, was not required by the appellant for cross-examination. It was, in those circumstances, not surprising that the Commissioner made no reference to it. Even if one assumes that the statement was made then there was nothing said by anyone at the meeting to confirm that it was an implicit criticism of the appellant. [26] A perfect set of reasons might have included a brief reference to this evidence and an equally brief and justifiable dismissal of it as being irrelevant. But a perfect set of reasons is not required. In the words of Hall P (set out in [15] above) “the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised”. (c) Working outside normal working hours [27] The appellant’s complaint under this heading is not that there was a restriction imposed on having access to parts of the hospital outside ordinary working hours. Her complaint is that the Commissioner did not consider that the evidence showed that she was treated differently to other workers. [28] The Commissioner understood that the appellant’s complaint was about differential treatment. When referring to the appellant’s evidence concerning the 28 July meeting, he said: “[27] The meeting was said to have continued in a negative way and became overwhelming and depressing leading to her total breakdown after that meeting. A directive was given to Dr Abbott that any unpaid out of hours work had to be done in business hours which was inconsistent with directives to other people.” (emphasis added) [29] Dr Abbott stated that “[Dr Ferguson] and security need to know if we are here [onsite] on a weekend, or late at night” and conceded that this made sense.8 7 T 2-88. 8 T 3-43. -- 11 of 14 -- 12 [30] Then, when dealing with Dr Abbott’s submissions, the Commissioner said: “[80] Other matters covered in the submission relating to the 28 July 2011 meeting included:  Dr Abbott's attendance at the Logan meeting on mental health issues as a carer and not an employee and should not have been raised at the meeting;  informing one Team Leader that another Team Leader had agreed to something as a reason to require Dr Abbott to perform a task when the reason was not applicable to her, was unreasonable;  getting value for money from Dr Abbott's 0.5 of a FTE position as raised by Lau was to imply she had not been performing the role to the upmost and was a reprehensible slur particularly as the evidence of Dr Ferguson was that the position was under resourced and a business case had previously been formulated (unsuccessfully) seeking additional resources;  management of emails was found to be offensive by Dr Abbott because of the way in which it was raised; and  notification of the working of overtime was to be applied to Dr Abbott for out of hours activities in a way more restrictive than applied to other employees.” (emphasis added) [31] He then, when setting out his consideration of the effect of the evidence on this point, said: “[142] In addressing the management action pertaining to the meeting of 28 July 2011, the evidence before the Commission is that:   matters raised at the meeting said to have contributed to Dr Abbott's decompensation were: o Lau's comments regarding whether the department were getting value for money from Dr Abbott; o governance arrangements for the Vitamin B12 research project; o out of hours access to the PA Hospital; and o email management;   out of hours - the employer took reasonable steps to manage employees wishing to attend the workplace outside of normal work hours, particularly when the workplace involved is a mental health facility; …” (emphasis added) [32] The appellant argues that this arrangement, without any explanation on the part of the employer, was unfair. There are two aspects to the consideration of this argument. -- 12 of 14 -- 13 [33] First, there was evidence about the arrangements made for out of hours access. In general terms, the Commissioner referred to the conditions for working out of hours in [23], [27], [33], [34], [40], [58], [61], [65], [80], [105], [106], [140], [141] and [142]. In those paragraphs the Commissioner refers to previous arrangements, the discussion at the 28 July meeting, and the understandable safety concerns of the employer. [34] Secondly, the various notes made of what occurred at the meeting and the directions given afterward do not compel a finding that the direction was restricted to the appellant. There are a number of references where the word “we” is used to indicate that the restriction was of broader application. [35] The Commissioner did consider this issue, but took a different view of the matter to that advanced by the appellant. No error has been shown here. (d) Failure to address the issue concerning the governance of the Vitamin B12 project [36] A discussion was had about the governance of the Vitamin B12 Project at a meeting on 30 June 2011. The appellant’s notes of that meeting record that she was told that the Department of Nutrition and Dietetics would be responsible for the control of the project. [37] The appellant’s notice of appeal, in part, claimed that the Commissioner had erred in not addressing the “correct question” namely whether it was reasonable for Dr Ferguson to take over governance of the project. But there was no evidence, apart from some suspicion expressed by the appellant, that Dr Ferguson was to take over the project. The evidence supported a finding (if one was necessary) that Nutrition and Dietetics was to obtain clinical governance of the project. Dr Abbott’s concern, expressed in her evidence,9 was that the research she was doing out of hours might be curtailed under the new arrangement. There was nothing to show that the proposed change was inappropriate, apart from Dr Abbott’s suspicions and concerns about oversight. [38] The appellant submitted that her point on this topic was that “nothing occurred at the meeting of 28 July 2011 to allay the Appellant’s fears with respect to this matter, that is the taking over of her research project by Dr Ferguson”. Two things may be said in response to that. First, there was no evidence to support the fear that she claimed to have. Secondly, the absence of action to allay an unjustified concern cannot be regarded as unreasonable management action. The case for the appellant oscillated on this point and the Commissioner was correct in concluding that: “Dr Ferguson, as the Manager responsible for Dr Abbott had every right to make inquiries regarding the research project being undertaken by Dr Abbott. The outcome of any inquiry did not interfere with Dr Abbott's continued participation in that project.”10 Conclusion [39] The appellant has not demonstrated any error. 9 T 3-36 to 3-39. 10 At [142]. -- 13 of 14 -- 14 [40] The appeal is dismissed. -- 14 of 14 --