Dyer v Q-COMP [2013] QIRC 97

CITATION: Colin Dyer AND Q-COMP (WC/2012/220) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 – appeal to commission Colin Dyer AND Q-COMP (WC/2012/220) DEPUTY PRESIDENT SWAN 8 July 2013 DECISION [1] This Appeal is brought pursuant to s. 549 of the Workers Compensation and Rehabilitation Act 2003 (WCRA) against the review of Q-Comp dated 8 May 2012 to reject the Appellant's application for compensation. The review decision states that the rejection was "in accordance with s. 32(5) of the [WRCA]". [2] The Appeal is by way of a hearing de novo. [3] The Appellant bears the onus of proof. [4] It is accepted that the Appellant is a 'worker' for the purposes of section 11 of the WCRA. Relevant Legislation [5] The Act relevantly provides: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury." … (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.". [6] The State of Queensland had been granted the right to be heard in this matter. In its submissions, Q-Comp advise that the State of Queensland had undertaken the task of calling all of the evidence to refute the Appellant's claims. Q-Comp did not call any witnesses. Q-Comp has considered the submissions made by the State of Queensland and has accepted and adopted those submissions whilst also making its own submissions. The Appellant's early history [7] The Appellant is a 56 year old man who holds a Bachelor of Science degree from Curtin University in Western Australia. [8] The Appellant started work with Workplace Health and Safety Queensland (WHSQ) in 2005 and was appointed as a Workplace Health and Safety Inspector (WHS Inspector) in May 2005. WHSQ was a division of the Department of Justice and Attorney-General (the Department). [9] The Appellant had been absent from work between December 2007 and October 2009 when he commenced a return to work program. [10] Whilst off work he saw a psychologist after receiving a referral from the Department's Employee Advisory Service (EAS). He had been referred to the EAS by his Regional Director, Ms Julie Nielson, after an occasion in 2007 when he had collapsed in a distressed manner in her office. It is admitted that, at that time, the Appellant suffered a psychological injury (Major Depressive Disorder). -- 1 of 9 -- 2 The Appellant's claim [11] At the end of 2009, the Appellant was able to return to his workplace. The Appellant claims that his mental state prior to his return to work is not relevant to matters that the Commission must decide. This statement is accepted by the State of Queensland, Q-Comp and also the Commission. [12] In the course of performing his duties after his return to work, the Appellant was required to attend premises at 75 Yundah Street, Shorncliffe along with WHS Inspector John Carmosino. There had been a complaint/enquiry that there was asbestos on the site. [13] The complaint was that a company, AI Sanding had been sanding walls of the building on site, but the work had stopped at the request of Ms Harris, a person who lived near to number 75 Yundah Street. [14] After speaking with Ms Harris, the Appellant took photos of the building and spoke to a representative of A1 Sanding. A1 Sanding was required to clean the property and Mr Muller from A1 Sanding was advised that he would be issued with a Prohibition Notice. [15] A discussion ensued between Mr Dyer and Ms Harris (in the presence of Mr Carmosino) on matters unrelated to the complaint. [16] After issuing the Prohibition Notice on 7 April 2010, WHS Inspectors Messrs Carmosino and Edwards revisited the Yundah Street site. Mr Stephen Brophy of Stephen Brophy Painters and Decorators was undertaking the water blasting of the building. Mr Brophy was issued with an Improvement Notice requiring him to clean the site. [17] In April 2010, residents within the immediate location of the Yundah Street property held a meeting. The Appellant, together with other WHSQ representatives attended the meeting. Ms Harris was at the meeting and the Appellant had spoken to her. [18] On 12 April 2010, Ms Brophy (wife of Mr Stephen Brophy) messaged Mr Carmosino requesting that he contact her. Mr Carmosino asked the Appellant to make this call as Ms Brophy had been very upset. [19] The Appellant advised Ms Brophy that the site needed to be cleaned by an asbestos removal specialist. He advised her to make her own enquiries, but that he would also find the names of competent professionals in the area. [20] Subsequently, the Appellant told Ms Brophy that a Mr Stephen Marsh was an asbestos removalist who had been recommended, but he continued to advise her to speak to other asbestos removers. [21] Ultimately, Ms Brophy telephoned the Appellant upset that the person she had contacted had quoted $36,000 to clean up the site. [22] On 13 April 2010, Ms Brophy left a message on the Appellant's personal mobile phone – his work phone was inoperative at the time – asking him to contact her as she was desperate for his advice. The Appellant phoned her and asked her to call him on his home number. [23] This occurred and the call lasted about 26 minutes. Ms Brophy had, before and after she had spoken to the Appellant, called another WHS Principal Inspector, Ms Ferris who had been nominated as the appropriate person to contact for matters regarding the possible asbestos issue at 75 Yundah Street. [24] When speaking to the Appellant, Ms Brophy had asked if their discussion could be "off the record". The Appellant believed that there was no need to do so and told her this but ultimately agreed and said they would "keep it between ourselves". [25] The gist of the conversation was that Ms Brophy was upset, asking for the Appellant's assistance because the quoted sum of $36,000 was needed to clean up the site and she believed that A1 Sanding should be held responsible for the state of the site. [26] The Appellant told Ms Brophy that her husband's business had breached regulations and she should discuss the issue with Mr Phelan and Ms Ferris regarding the terms of the Improvement Notice. [27] During the call, Ms Brophy passed the phone to her husband who then commenced talking to the Appellant. The Appellant said he asked him a number of questions as to whether paint remained on the fibro building when he commenced water blasting. Mr Brophy said there hadn't been any paint but this didn't accord with the Appellant's view. Ultimately Mr Brophy agreed that there had been a small amount of paint and mould on the -- 2 of 9 -- 3 areas where he had been working, After further questions from the Appellant, the Appellant advised Mr and Ms Brophy to document all the facts before their meeting with Mr Phelan and Ms Ferris. [28] On 15 April 2010, Ms Brophy was interviewed by WHS Principal Inspector Raymond Stockton in the presence of Ms Ferris and WHS Inspector Peter Hurrey. Ms Julie Neilson had placed Mr Stockton in charge of the asbestos investigation. [29] In that interview, Ms Brophy made complaints about the conduct of the Appellant during the course of telephone calls on 12 and 13 April 2010. [30] On 16 April 2010, Messrs Stockton and Hurrey interviewed residents of Yundah Street including Ms Harris. Ms Harris told Mr Hurrey that the Appellant had been "jokey" and "flirtatious" with her. [31] On 16 April 2010, the Appellant was suspended from work on full pay on the grounds that there had been "recently made allegations relating to your failure to exercise your inspector powers honestly and impartially". An investigation of the Appellant's professional conduct and behaviour was initiated and the matter had been referred to the Crime and Misconduct Commission (CMC). [32] The Appellant had stated that at the time of receiving his suspension notice "it had destroyed me". The Appellant also stated that "I recovered when I walked out of the building, jumped in my car, spoke to my wife, discussed it and then felt okay" [T2-65]. Ms Neilson's evidence is that when she had handed the Appellant his letter of suspension he seemed "quite calm" and that he did not seem "distressed" [T3-37]. [33] The Appellant was under instruction "not to contact either directly or indirectly staff or any other person involved in or related to the investigation of matters concerning Yundah Street Shorncliffe" and that "the matters which are the subject of this letter are to remain confidential". [34] The Appellant said he was unable to find out what was being alleged of him and Mr Neil Boyd, Director of the Ethical Standards Unit (ESU) told him to make notes of events. [35] On 21 April 2010, three allegations against the Appellant were referred to the CMC by Mr Boyd. [36] These allegations arose from complaints made by Ms Brophy and were that: • The Appellant "made inappropriate comments to Ms Brophy of a sexual nature while investigating asbestos hazards at a Shorncliffe residence"; • That the Appellant "failed to discharge his obligations appropriately as WH&S Inspector re asbestos hazard at Yundah St Shorncliffe residence; • The Appellant "conspired with complainant and her husband to fabricate version of events to tell the investigator who was subsequently appointed ('so that he wouldn't lose his job')." [37] On 30 April 2010, Ms Harris was interviewed by Mr Jamie Townsend of Ashdale Integrity Solutions (Ashdale) – an organisation which had been engaged by the Department to investigate allegations concerning the Appellant. Ms Harris had advised Mr Townsend that the Appellant had asked her "so when are we going out to dinner". [38] On the same date, the Appellant had contacted his Union and stated, inter alia, that: "I have no idea what's going on. I don't know why this is happening, don't know what I am accused of, scared and angry. Need help." [Ex 9 – Attachment 7, paragraph 23]. [39] On 4 May 2010, the Appellant was advised that Mr Townsend of Ashdale had been engaged to investigate allegations made about his conduct. The letter from Ashdale, inter alia, stated: "It is alleged that you failed to discharge your obligations as an inspector appropriately; made comments of an inappropriate nature to a number of people and provided inappropriate advice.". [40] The Appellant's interview with Mr Townsend occurred on 6 May 2010. The Appellant stated that Mr Townsend had not notified him at the start of the meeting what specific allegations had been made against him. [41] Amongst the questions put to the Appellant by Mr Townsend were the following: • Had the Appellant said to Ms Harris "so when are we going out to dinner?" • Had the Appellant behaved in a "flirtatious" manner towards Ms Harris? -- 3 of 9 -- 4 • Had the Appellant, during his telephone call with Ms Brophy invited her to his newly built home for a spa and a massage? • Had the Appellant asked Ms Brophy her age? • Had the Appellant told Ms Brophy that she had a "sexy voice" and that he was going to call her "Ms Deep Throat'? • The Appellant was asked about the particular telephone call he had conducted with Mr and Ms Brophy on 13 April 2010 and was specifically asked whether he had instructed the Brophys to say that there had been paint on the walls when they arrived on site as "his job was on the line". [42] The Appellant denied all of these allegations. [43] On 28 May 2010, Ashdale released its investigation Report to the Department. The Report concluded that the allegations made against the Appellant concerning Ms Harris and the Brophys were substantiated. However, it was found that the allegation that the Appellant had failed to discharge his obligations as a WHS Inspector with regard to the asbestos hazard at Yundah Street was unsubstantiated. [44] The allegations were then particularised as follows: Allegation 1 (substantiated) "In April 2010 you made comments of an inappropriate nature to a complainant, Ms Elaine Harris in the course of an investigation you had conducted namely words to the effect of "so when are we going out to dinner". Allegation 2 (substantiated) "In April 2010, you made comments of an inappropriate nature to an interested party, Ms Elaine Brophy during the course of an investigation that was being conducted, namely: (a) Using words to the effect of "hello Ms Deep Throat". (b) Using words to the effect of "I have just had a new house built, a lovely new home with a corner spa. You will have to come around and have a nice bath in there and I will give you a massage.". (c) Asking how old she was, and (d) Describing her voice as "sexy". Allegation 3 (unsubstantiated) "In April, you inappropriately advised an interested party, Ms Elaine and Mr Stephen Brophy how to provide their version of events to other WHSQ Inspectors engaged in the investigation of the asbestos hazard at Shorncliffe.". [45] On 28 June 2010, the Associate Director-General of the Department wrote to the Appellant requesting that he 'Show Cause' as to why disciplinary action should not be taken against him under the Public Service Act 2008 in respect of the aforementioned substantiated allegations. [46] The Appellant claimed that his Solicitors at the time had made an extensive response to the 'Show Cause' letter. Incorporated within that response was the claim that the Appellant had been denied natural justice. The letter went on to state that there may have been a witness to the Appellant's conversation with Ms Brophy on 12 April 2010 and that there may have been several witnesses to another conversation with Ms Brophy on 12 or 13 April 2010. The Associate Director-General of the Department was also advised that before and after Ms Brophy's conversation with the Appellant on 13 April 2010, Ms Brophy had spoken to Ms Ferris. This led to questions being posed as to the content of Ms Brophy's discussion with Ms Ferris. [47] On 12 August, 2010, by way of response from the Acting Director-General of the Department, reference was made to the Ashdale Report having in its possession a CD-ROM which included audio recordings of the interviews conducted by Ashdale. That material had not previously been provided to the Appellant. [48] The Appellant's Solicitors had also requested that the Department, on 24 August 2010, provide further particulars with regard to the substantiated allegations. [49] On 26 October 2010, the Acting Director-General of the Department advised the Appellant that it had been found with regard to the substantiated allegations that the Appellant was liable for disciplinary action pursuant to s.188 of the Public Service Act 2008. The Appellant was also advised that this letter constituted a 'second Show Cause notice". -- 4 of 9 -- 5 [50] The Appellant was advised that the penalty being considered was that of transferring him at his current level to a position which did not require the exercise of the Statutory responsibility of a WSHQ Inspector. 14 days were given to the Appellant in which to make his response. [51] However, around that time, the Appellant's health had deteriorated and he had been hospitalised for a psychological condition for 8 days in early October 2010. [52] Submissions on penalty were made on the Appellant's behalf by his newly appointed Solicitors. However, it was determined to impose the penalty that had been mentioned in the correspondence of 26 October 2010. [53] The application for Workers' Compensation was lodged on 12 October 2010. [54] The date of 16 April 2010 was identified as the date of the occurrence of the injury and the Workers' Compensation medical certificate, issued by Dr Robert Gooch, identified the diagnosis of "Generalised Anxiety Reaction". The Certificate stated that the Appellant had first visited Dr Gooch for this condition on 6 May 2010. [55] On 21 October 2010, the Appellant had lodged a "Psychological and Psychiatric Injury – Claim information summary for workers" and identified the three prominent factors as being the most significant in contributing to his injury: a. "The Department's failure to properly investigate allegations of misconduct; and b. The Department's consequent failure to recognise that the balance of evidence does not support the allegation; and c. The Department's failure to acknowledge this fact within a reasonable and just timeframe". [56] Although the Appellant submitted his claim on 21 October 2010, he says that since 6 May 2010 he had experienced a range of symptoms. Those symptoms increased after the release of the Ashdale Report on 19 June 2010. The symptoms were described as increasing levels of anxiety, fear, despair and hopelessness. [57] The Appellant says that there were a number of incidents which increased these symptoms – being suspended from his job, receiving a letter from Q-Super which he mistakenly thought related to termination of employment, being interviewed by Mr Townsend and his ultimate investigation Report. [58] On 30 September 2010 the Appellant was admitted to Hospital following an incident wherein he developed suicidal thoughts. This was identified as the date of the Appellant's decompensation. The diagnosis made by Dr Andrew Nielson (Psychiatrist) on 19 September 2011 was that the Appellant had a Major Depressive Disorder, in partial remission. [59] Dr Neilson's evidence was that: (a) the appellent's psychiatric condition was caused by being investigated for misconduct at work, and was not caused by the complaint itself or work in general; (b) the appellant's symptoms were attributed to the work related injury and not to an underlying pre-existing condition; (c) it was the appellant's perception of the way that the investigation was undertaken which caused the psychiatric injury" [T2-110, T2-111]. [60] The Appellant states that the "investigation" as described by Dr Nielsen must also include the disciplinary process which began after the delivery of the investigation Report. The Appellant states that his psychiatric condition arose out of the investigation and the disciplinary process that began with the "Show Cause" letter. The Appellant claims that there were no external factors giving rise to the condition. [61] The Appellant's submission concerning the lack of procedural fairness did not relate to the Department's investigation of the allegations and its decision to commence disciplinary processes, but to the conduct of the investigation and the disciplinary process undertaken by the Department. The Appellant believes that the management action taken by the Department was not undertaken in a reasonable way. [62] The investigation and Show Cause processes were, in the Appellant's view, marked by significant failures to afford procedural fairness. [63] The Appellant identified a number of instances where these issues arose: • At the commencement of the investigation, the Appellant was not apprised of the allegations against him, even though the substance of the complaints were known. • The suspension letter did not provide any information of what was alleged against him. -- 5 of 9 -- 6 • The Appellant was unaware of the complaint referred by the Department to the CMC. • In the Department's letter of 4 May 2010, the Appellant was directed to participate in an interview with the investigator but was provided no more information and the Appellant, in that letter, had been told that he could "provide any information or explanations relevant to these matters". • Against a backdrop of not knowing the details of allegations made against him, the Appellant only prepared a record of the discussion he had with Ms Brophy on 13 April 2010. The Appellant had done this because Mr Boyd had advised him that he should document everything that had happened in relation to conversations he had engaged in during the course of the asbestos investigation. [64] The Appellant seeks compensation for a psychiatric or psychological disorder. It is claimed that the condition arose out of the conduct of the investigation process and the subsequent disciplinary proceedings. [65] The investigation process was conducted by Ashdale. While management did not conduct this process, it was a process and outcome adopted and implemented by the Department. As there were no external factors giving rise to the Appellant's condition, it is clear that the Appellant's employment was the only contributing factor [Section 32(1)]. [66] At the core of the problem, the Appellant states that the investigation and consequent disciplinary process was infected by serious lapses in the provision of natural justice to him. Combined Responses from Q-Comp and the State of Queensland [67] It is admitted that the Appellant suffered from a psychological injury, namely a Major Depressive Disorder. [68] Dr Nielsen, for the Appellant, stated that the cause of the Appellant's condition "was being investigated for misconduct at work" [Ex 21, page 1]. [69] Further, during cross-examination, Dr Nielsen stated that it was the Appellant's "perception of the way that the investigation was undertaken (that) was the cause of the psychiatric injury" [T2-110]. [70] Dr Nielsen also stated that if the investigation had come to "a conclusion that (the Appellant) was happy with, for example, then he wouldn't have developed the psychological injury" [T2-110]. [71] The State of Queensland says that it was the "mere fact of being investigated for alleged misconduct that caused the Appellant's condition" [State of Queensland Submissions – point 9]. Dr Nielsen had not stated that the Appellant's condition was caused by a denial of procedural fairness. [72] It is claimed, therefore, that the Appellant's injury is excluded from the operation of WRCA [s.35(5)] as the Appellant stated that it was reasonable for this employer to investigate the allegations made against him [T2-12]. [73] The Appellant's identification of the errors which occurred in the investigation and disciplinary processes have been responded to as follows: • At the commencement of the investigation, when the Appellant was advised of his suspension, it is accepted that he was not advised of the allegations made against him. This did not constitute a denial of natural justice as he was not required to respond to anything at that time. The Appellant has accepted that point in evidence, as well as accepting that it was reasonable for him to be suspended and that he not speak to any of his colleagues [T2-12, 23]. State of Queensland submits that Section 190 of the Public Service Act 2008 supports its proposition: "Procedure for disciplinary action (1) In disciplining a public service officer or former public service officer or suspending a public service officer, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice. (2) However, natural justice is not required if the suspension is on normal remuneration". • The Appellant had stated that upon the receipt of his suspension letter on 16 April 2010, he felt "destroyed", however he did not seek medical attention until 6 May 2010 nor did he seek to utilise the Department's Employee Assistance Scheme. Against this claim, the evidence of Ms Neilson says that the Appellant showed no indication of being "destroyed" – rather he behaved in a calm manner. The Appellant's own evidence went on to state that he recovered quickly at that time. -- 6 of 9 -- 7 • The Appellant had originally claimed that Mr Townsend had not put allegations to him during his interview [T2-28, 29], but later conceded, through his Counsel in submissions, that allegations were put to him by Mr Townsend [Appellant's submissions paragraphs 74-78]. • The Appellant acknowledged that he could have a support person with him during his interview with Mr Townsend and he chose Ms Buder (from his Union). • After the interview, the Appellant had stated that Mr Townsend had been 'very pleasant' [T2-23]. The Appellant had the opportunity during the interview to discuss matters with Ms Buder, he was prepared for the interview and he was satisfied with the manner in which the interview had been conducted [T2-24,T1-89]. • The Appellant's comments after the interview were finalised were "Well, that's finished with, I'll be back at work in a week" [T2-30]. • A further particularised complaint of unfair treatment was that the Appellant had not been presented with any material in the Show Cause notice of 28 June 2010 which would permit him to understand the exact occasion upon which he was alleged to have said a range of things set out in the allegation of Ms Brophy. The response is that the words were repeated in writing to the Appellant as alleged by Ms Brophy. • The State of Queensland submits that it was required to give the Appellant sufficient detail about the allegations from which he could respond. It has rejected the Appellant's claim that the allegations were not particularised sufficiently. • Throughout the process, the Appellant had the assistance of his Union together with legal advice. The Appellant was also afforded the opportunity to extend the time in which to respond. The Appellant agreed that his Solicitors had prepared a considered response to his Show Cause letter. This was done under his instruction. • On 12 August 2012, the Appellant was given another opportunity to make further submissions but he declined to do so saying, in evidence that "as far as we were concerned we'd put everything that needed to be put in the 22 nd of July document" [T2-62]. • Of concern to the Appellant was that there were no transcriptions of the witness evidence taken during the investigation. The State of Queensland says that there was no requirement to do this. This factor had not been addressed in Dr Nielsen's evidence and there was no evidence given that the Appellant had asked for the interviews to be transcribed and that request had been denied. The Appellant had not given evidence that this factor had caused him stress. In the end, the transcribed documents were given to the Appellant but he claims this material was not provided in a timely manner. • There was a concern raised by the Appellant that none of his witnesses had been interviewed [T2-50]. However, Mr Carmosino had been interviewed. The Appellant had not identified at the time of the investigation that there could be other witnesses. The State of Queensland says that at the time of his Show Cause letter of 22 July 2010, the Appellant had stated that other than for Mr Carmosino he could not recall who was present in the office when his phone conversation with Ms Brophy occurred. • In general, the question of "other witnesses" (ie Ms Ferris, Mr Norris and Mr Watts) was not addressed because the Appellant had not named any other persons as potential witnesses. This 'failure' had never been identified as a denial of procedural fairness. • As previously mentioned, there had been a late provision of the audio recording of the interviews, and the Appellant claimed that this was a further example of denial of natural justice. The State of Queensland says there is no substance to this allegation as the Appellant was given the opportunity to make further submissions, and chose not to do so believing that he had put everything he had needed to put before the investigator. It was a claim made later in the piece, and should be afforded no consideration. • Q-Comp, in its submissions, made the following comments: "It is a fundamental tenet of establishing workers' compensation liability for a psychiatric injury pursuant to s.32 of the Workers' Compensation and Rehabilitation Act that some event in the workplace has occurred and has had some impact on the psychiatric health or the worker. That is usually established by the fact that the worker has knowledge of that specific event for there to be impact on the psychiatric health. Here, there is simply no evidence that any of these alleged imperfections with the investigative and disciplinary process came to the attention or knowledge of the Appellant" [Q-Comp's Submissions – point 6]. -- 7 of 9 -- 8 • Q-Comp reiterated the specific comments made by Dr Nielsen as it related to the cause for the Appellant's condition, i.e.: o The mere fact of the investigation. o The fact that the investigation was not conducted in a manner 'as he thought it should have been', and o That the investigation did not reach a conclusion he was 'happy with'. • After considering the comments made by the Appellant immediately after the interview had finalised – i.e. that he believed the interview to be fair and that he believed he had put all on the table to be considered by the interviewer, the Appellant only became critical of the process when he later became aware that adverse findings might have been made against him. This would have occurred when the Show Cause letter was received on 28 June 2010. • The Appellant had claimed that his e-mails (tendered as Exhibit 7) reflected his response to his suspension letter of 16 April 2010. That claim could not be sustained as Exhibit 18 revealed that the e-mails related to the correspondence the Appellant had received from Q-Super on 28 April 2010. Consideration of the Evidence and Conclusion [74] The Appellant's claim is unable to be accepted by the Commission. [75] The evidence of Dr Neilsen (the only medical evidence called) is quite explicit in its identification of the cause of the Appellant's condition. [76] The cause of the Appellant's injury was that the Appellant "was being investigated for misconduct at work" [Ex 21, page 1] and that it was the Appellant's "perception of the way that the investigation was undertaken was the cause of the psychiatric injury" [T2-110]. As well, had the Appellant been happy with the result of the investigation, then he would not have suffered the psychological injury. [77] In my view, management action was reasonable and taken in a reasonable way. The Department was required to address serious allegations made against the Appellant. The Appellant agreed that the Department had a requirement to investigate the allegations and, to that end, the Department had sought the services of Ashdale to conduct the investigation. All was accepted by the Appellant as being fair and reasonable in the circumstances (including the conduct of the interview with Ashdale) until such time as an adverse finding was made against him. [78] The Appellant was represented in the investigation by his Union advisor, Ms Buder (whom the Appellant did not call to give evidence) and he also had the services of a Solicitor to assist in his responses to the claims. The Appellant believed he had put all that was required to defend his position to the investigator. The investigator took a different view to that of the Appellant as was his prerogative. [79] I have accepted that the basic tenets of the allegations were put to the Appellant sufficient for him to respond to the allegations. If exact dates were not recorded, it is my view that the Appellant was not unaware of the nature of the claims being made against him. The time frame under consideration relating to the allegations was short, the allegations were set around a discrete set of circumstances and the number of persons involved in the allegations were very limited. [80] There was no evidence indicating that the alleged instances of unreasonable management action identified by the Appellant had any effect upon his psychiatric health. Q-Comp rightly pointed out that the matters identified would not have been known to the Appellant in any event. [81] I have accepted the State of Queensland's submissions that it was the mere fact of being investigated for alleged misconduct that caused the Appellant's condition. The Appellant accepted that it was reasonable for his employer to investigate the allegations made against him. Consequently, the Appellant's injury is excluded from the operation of the Act by reason of s. 32(5). [82] Q-Comp v Rowe (2009) QGIG 67 is an authority for the proposition that the Commission is required to enquire whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way. [83] The use of the word "reasonable" in s. 32(5) means reasonable in all the circumstances of the case [WorkCover v Kehl (2002) 170 QGIG 93]. [84] The alleged imperfections raised by the Appellant do not detract from the reasonableness of the management action. [Q-Comp v Holm [2008] 187 QGIG 93]. -- 8 of 9 -- 9 [85] Prizeman v Q-Comp (2005) 180 QGIG 481 and Leigh v Q-Comp (2008) 189 QGIG 652 discuss the issue of the employee's 'perception' of a matter and states that it's the reality of the employer's conduct which must be taken into account rather than the employee's perception of the matter. [86] After a consideration of the evidence given in this matter, I have formed the view that the Appellant's claim must be dismissed. [87] The Commission confirms the decision of Q-Comp in rejecting the application for compensation. [88] The Applicant is to pay the costs of Q-Comp incurred in respect of the conduct of this appeal. [89] Order accordingly. D.A. Swan, Deputy President Hearing Details: 2013 4, 5 & 6 March (Hearing) 10 April (Appellant's Submissions) 29 April (State of Qld Submissions) 6 May (Q-COMP Submissions) 13 May (Submissions in Reply) Released: 8 July 2013 Appearances: Mr B Reed of Counsel, instructed by Mr A. MacGillivray of McMillan Legal. Mr C. Clark of Counsel, instructed by Q-COMP. Mr M. Spry of Counsel, instructed by Ms F. Black of Crown Law. -- 9 of 9 --