Cooper v Q-COMP [2012] QIRC 9

CITATION: Stuart Cooper AND Q-COMP (WC/2011/217) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Stuart Cooper AND Q-COMP (WC/2011/217) VICE PRESIDENT LINNANE 14 February 2012 DECISION [1] This is an appeal by Stuart Cooper (Appellant) against a decision of the Review Unit of Q-COMP (Q-COMP) dated 10 June 2011. That Q-COMP decision confirmed an earlier decision of WorkCover Queensland (WorkCover) to reject the Appellant's claim for compensation on the basis that the Appellant's entitlement to compensation was excluded by virtue of s. 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Act). At the relevant time the Appellant was employed by Axis Plumbing Queensland Pty Ltd (Employer) on the construction of the new Gatton Correctional Facility (Project Site). The Appellant resigned from that employment on 1 July 2009. The Employer was a sub-contractor on the Project Site with Baulderstone Hornibrook being the principal contractor on the Project Site. Brief History of the Claim [2] The Appellant was employed by the Employer as a plumber and commenced in that employment on 23 March 2009. The Appellant lodged an Application for Compensation with WorkCover on 18 September 2009 (Exhibit 1) claiming compensation for a "[p]sychological system in general, [m]ental diseases, unspecified" alleged to have been sustained as a result of "[w]orkplace harassment, being forced to join the union, threatened to be bashed at work" said in the Appellant's application for compensation to have occurred on 23 March 2009 whilst performing duties with the Employer. [3] In correspondence dated 19 October 2009 WorkCover provided the Appellant with written notice of its decision to reject his claim for compensation relying upon the provision of s. 32(5) of the Act (Exhibit 2). On 29 January 2010 the Appellant lodged an application for review of that WorkCover decision to Q-COMP (Exhibit 3). Q-COMP provided reasons for its decision to set aside the WorkCover decision dated 24 March 2010 (Exhibit 4) and returned the matter to WorkCover with some directions. [4] In correspondence dated 11 February 2011, WorkCover provided the Appellant with its reasons for decision to not accept his application as he did not sustain an "injury" within the meaning of that term in s. 32 of the Act (Exhibit 5). Once again the Appellant, on 4 March 2011, lodged an application for review of that WorkCover decision to Q-COMP (Exhibit 6). Q-COMP provided reasons for its decision to reject the Appellant's claim for compensation contending that the entitlement to compensation was excluded by virtue of reasonable management action pursuant to s. 32(5) of the Act. It is against this Q-COMP decision that the Appellant currently appeals. Issue for Determination [5] The issue for determination in this appeal is whether the Appellant suffered a personal injury, that injury being a psychological injury sustained over a period of time as a result of alleged bullying and harassment in the workplace within the meaning of s. 32 of the Act. Section 32 of the Act relevantly provides as follows: "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; -- 1 of 17 -- 2 (c) action by the Authority or an insurer in connection with the worker’s application for compensation.". [6] Q-COMP conceded that the Appellant was a worker at the relevant time. Onus of Proof [7] The Appellant carries the burden of proof on the balance of probabilities: see Rossmuller v Q-COMP1 at para [2]. The Appellant thus must prove, on the balance of probabilities, that the claim is one for acceptance i.e. that: • the Appellant suffered an injury being a psychological injury; • the psychological injury arose out of, or in the course of, his employment with the Employer; • the employment with the Employer was a significant contributing factor to the psychological injury; and • the psychological injury is not excluded by s. 32(5) of the Act i.e. the psychological injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the Employer in connection with the worker’s employment and/or that the psychological injury did not arise out of, or in the course of, the Appellant's expectation or perception of reasonable management action being taken against him. Evidence [8] The Appellant relied upon the evidence of the following witnesses: • the Appellant himself; • John Langford, a Counsellor/Psychotherapist with Anglicare North Queensland Limited (a Statement to Whom to May Concern is Exhibit 10). Essentially Mr Langford's statement asks that the Appellant be given a fair and reasonable hearing of his workers' compensation claim; and • Dr Stephen Huntsman, Psychiatrist who provided a medical report dated 8 February 2010 (Exhibit 11). Dr Huntsman's referral letter is Exhibit 12 and his Patient Detail Form is Exhibit 13. [9] Q-COMP relied upon the evidence of the following witnesses: • Gary O'Halloran, the Assistant State Secretary of the Plumbing Division of the Communications Electrical Plumbing Union (CEPU); • Stephen Schofield, a Plumber employed by the Employer and the Site Foreman who reported to Troy McCallum. Mr Schofield's position was to organise the workers in their work, ensure that the workers had the necessary equipment and that the workers were performing the required work i.e. his role was to organise the labour on a daily basis; • Vincenzo Napoli, the Employer's Construction Manager; and • Troy McCallum, the Employer's Project Manager for the Project Site. Mr McCallum reported to Mr Napoli. [10] The Appellant provided a Statutory Declaration which was sworn on 17 March 2010 (Exhibit 9). Essentially that document outlined the various stressors relied upon by the Appellant to found his claim for workers' compensation. I intend to deal with each of those stressors and the evidence with respect to each stressor individually. The stressors identified are as follows: (a) a discussion with Darren Howarth about joining the CEPU; (b) the smashing of an external rear vision mirror of Robert Gleadhill's motor vehicle; (c) an allegation that Ian Chapman was threatened by Mr Howarth; (d) an incident on the public road leading to the Project Site; (e) damage to the Appellant's hard hat; (f) an approach by Mr O'Halloran to join the CEPU; (g) an incident where the Appellant was allegedly advised that "Ipswich boys run in packs"; (h) discussions with Mr Napoli after resigning from his employment with the Employer; 1 Rossmuller v Q-COMP (C/2009/36) Decision <http://www.qirc.qld.gov.au> -- 2 of 17 -- 3 (i) an issue with a receptionist from the Employer's Head Office in Sydney after 1 July 2009; (j) discussions with the principal contractor on the Project Site, Baulderstone Hornibrook; and (k) the statutory Conference before Fair Work Australia following a claim by the Appellant that he had been unfairly dismissed from employment with the Employer. [11] (a) Discussion with Darren Howarth about joining the CEPU: In Exhibit 9 the Appellant stated that, on 24 March 2009 (the second day of his employment), he was advised by another employee, Darren Howarth, to "[j]oin the Union or fuck off - right mate". In the Statutory Declaration the Appellant stated that he then explained to Mr Howarth why he did not want to join the union and one of the other employees said "[i]f there's any problems all you have to do is ring the Union". The Appellant further stated that he did not advise management of this issue as it was his second day on the job. [12] In evidence the Appellant said that he was "pretty shocked" as to the manner in which Mr Howarth approached the issue. Under cross-examination, the Appellant said that he knew he was not required to be in the CEPU, or any other union, whilst working for the Employer on the Project Site. He further confirmed that Mr Howarth had a view that all employees should be in the union. The Appellant agreed that Mr Howarth had no official position within the CEPU e.g. he was not a CEPU delegate or site representative. [13] Throughout his employment with the Employer the Appellant did not join the CEPU or any other union. There was no evidence whatsoever of any detriment suffered by the Appellant as a result of him not joining the CEPU other than the fact that the CEPU advised the Appellant it would not represent him in any matter that arose prior to him joining the CEPU. [14] The Appellant was employed on a construction site. He was aware of that fact prior to seeking employment with the Employer. In the construction industry it would not be unusual for members of a union to approach new employees to join the union. That approach would not necessarily be done in the same manner as one would approach a shop assistant to join a union. Mr Howarth did not give evidence and even if I accept that Mr Howarth did say the words ascribed to him by the Appellant, it does not seem that inappropriate in the context of the work situation. [15] In any event the Appellant never raised this matter with management so there was no opportunity for reasonable management action to be taken in respect of this alleged stressor. Whilst suggesting he was "pretty shocked" the evidence did not reveal any connection between this incident and the injury suffered by the Appellant. [16] (b) Smashing of External Rear Vision Mirror of Robert Gleadhill's Motor Vehicle: In Exhibit 9 the Appellant said that some two weeks into his employment with the Employer, while installing water mains with another employee, Robert Gleadhill, Mr Howarth and Mr Gleadhill had a heated argument. The Appellant said that Mr Howarth then went over and smashed the side rear vision mirror of Mr Gleadhill's motor vehicle with a roll of black poly pipe. The Appellant asserted that Mr Gleadhill raised the matter with Mr Schofield and that management took no disciplinary action against Mr Howarth. The Appellant said that it was a shock to him to see this type of aggressive behaviour overlooked by management. Thus it was the overlooking of it by management that "shocked" the Appellant. [17] In his evidence-in-chief the Appellant confirmed that he was "shocked" to see what Mr Howarth had done to Mr Gleadhill's car and that "nothing had been addressed by the boss". The Appellant said that the issue was not discussed at a tool box meeting or any other meeting and he thought that such unacceptable behaviour should have been addressed at such a meeting. Under cross-examination the Appellant admitted that he did not know what happened in respect of this matter only that it was not raised at a tool box meeting. He further agreed that the issue may have been sorted out between Mr Gleadhill and Mr Howarth however he continued to press the point that if management had taken action it would have been addressed at a tool box meeting and everyone would have been made aware that it was unacceptable conduct. The Appellant agreed that he did not know whether Mr Gleadhill had made a complaint - he just assumed that he would have made such a complaint. [18] Under cross-examination the Appellant agreed that he wanted Mr Howarth off the Project Site and that it was management's role to do that - this view was formed some two weeks into his employment with the Employer. When it was suggested to the Appellant that it was not his position to tell management what they should do, he said that it was his obligation as an employee to speak out in respect of unsafe work practices. He agreed that it was not his motor vehicle that was damaged but said he was shocked to see what happened. [19] Mr Schofield's evidence was that he was made aware of damage to Mr Gleadhill's motor vehicle caused by Mr Howarth. His evidence is that he talked to both Mr Gleadhill and Mr Howarth in respect of the matter and the matter was settled between the two employees. Mr Schofield's evidence was that he formed the view that both parties were happy with the outcome. Mr Schofield said that he had no further problems between the two men. -- 3 of 17 -- 4 [20] Mr Napoli's evidence on this issue was that he was provided with an oral report from Mr McCallum. Mr McCallum's evidence was that Mr Gleadhill did not want to make a formal complaint about the incident. Mr Gleadhill informed Mr McCallum that discussions had occurred between Mr Schofield, Mr Howarth and himself and that the matter had been resolved. [21] The evidence of the Appellant is that it was a shock to him to see this type of aggressive behaviour overlooked by management. Rather than the incident itself, the Appellant was shocked that "nothing had been addressed by the boss". Clearly the issue had been raised with the two individuals by both Mr Schofield and Mr McCallum. Both Mr Schofield and Mr McCallum were advised by Mr Gleadhill that the matter had been resolved and that he did not wish to make any formal complaint. Without a complainant, it is difficult to see what further action management could have taken. The Appellant suggested that the matter ought to have been referred to the Police and raised at tool box meetings. Given that the damage was done to an individual employee's motor vehicle it would have been up to Mr Gleadhill to lodge a complaint with the Gatton Police. Clearly no such complaint was made by Mr Gleadhill. Management appears to have dealt with the issue to the satisfaction of Mr Gleadhill - the employee whose motor vehicle was damaged. No witness giving evidence before the Queensland Industrial Relations Commission (Commission) was aware of the terms of any settlement of the matter between Mr Gleadhill and Mr Howarth. Perhaps in an ideal world management could have indicated to the workforce that such conduct was unacceptable, however no details of the agreement between Mr Howarth and Mr Gleadhill were outlined in the course of the hearing. All sorts of possibilities arise e.g. Mr Gleadhill may not have wanted to be the centre of attention. We do not know. [22] Management's action in ensuring that Mr Gleadhill was satisfied with the outcome of discussions between he and Mr Howarth appears to me to be reasonable management action in all of the circumstances. It should be noted that the Appellant had no knowledge whatsoever of any involvement by management in this matter. The Appellant's perception of what had occurred in respect of this matter and the role management played in ensuring the matter was settled to Mr Gleadhill's satisfaction was inaccurate. In addition Mr Howarth was ultimately given a first warning about a number of issues including this matter. [23] (c) Allegation that Ian Chapman was threatened by Mr Howarth: The Appellant, in Exhibit 9, stated that after a union meeting attended by Mr O'Halloran and representatives of the Employer, he was made aware by another employee, Ian Chapman, that Mr Howarth had threatened to bash him (Mr Chapman) over a comment he had made in that meeting. The Appellant said that he approached Mr Schofield shortly thereafter and advised him of the conversation he had had with Mr Chapman. According to the Appellant, Mr Schofield advised the Appellant that he would sort it out. When the Appellant had not heard of any action being taken against Mr Howarth he said he again approached Mr Schofield and advised him that it was against workplace health and safety legislation to threaten to bash people at work. The Appellant alleged that Mr Schofield responded by saying "I have three beautiful daughters at home" and then turned around and walked into his office without addressing his concerns. The Appellant stated in Exhibit 9 that he was "shocked" by management's response. Given this incident and the earlier incident with the motor vehicle, the Appellant said he feared for his own personal safety and notified the Gatton Police of the situation at work. The Appellant said that he continued working but remained concerned at management's decision to take no action. [24] Again the Appellant was "shocked" by management's response. There was no evidence that the Appellant was even at the union meeting. On the morning after the meeting addressed by Mr O'Halloran, the Appellant said he spoke with Mr Schofield and said "this is ridiculous", he has vandalised Rob's car "and nothing seems to have been done about it". The Appellant then told Mr Schofield that he should address Mr Howarth's behaviour. Mr Chapman was not with the Appellant during this discussion with Mr Schofield and it is clear that Mr Chapman did not ask the Appellant to take the matter up on his behalf. [25] Mr Schofield in his evidence-in-chief said that he was not aware of any incident where Mr Howarth threatened anyone at the work site and he was not involved in any meeting where Mr McCallum spoke to Mr Howarth about any such issue. The Appellant, in cross-examination, suggested that Mr Schofield said to him that he would sort it out. Mr Schofield did not recall any such conversation. Similarly Mr Schofield said he did not recall the Appellant approaching him at a later stage suggesting that it was a breach of workplace health and safety legislation. Again the Appellant put to him that Mr Schofield responded that he had three lovely daughters and Mr Schofield said that this conversation did not occur. Mr Schofield again confirmed that he was unaware of Ian Chapman ever being threatened on site. Whilst I do not think it necessary, in all the circumstances I prefer the evidence of Mr Schofield to that of the Appellant as to whether these discussions occurred. Given the general evidence of Mr Napoli, Mr McCallum and Mr Schofield, if issues have arisen at the Project Site they have generally been known by at least two members of that management team. On this occasion Mr McCallum's evidence was that he could not recall any threat against Mr Chapman on the Project Site. [26] Mr Chapman did not give evidence in support of the Appellant's allegation. Obviously there was no complaint by Mr Chapman to any management representative. Mr Schofield denied any conversation with the Appellant -- 4 of 17 -- 5 about Mr Chapman being threatened by Mr Howarth. In those circumstances the Appellant has some difficulty in establishing that management's action was not reasonable. Even had the Appellant raised the matter with Mr Schofield he could not have acted on hearsay information given to him by the Appellant when any alleged threat was not made against him or in his presence. Before management could have taken any action against Mr Howarth they would need to have received a complaint from Mr Chapman personally. There was no evidence of such complaint being made by Mr Chapman. In all of the circumstances I cannot find that management failed to act in a reasonable manner in respect to this matter. [27] (d) Incident on the public road leading to the Project Site: In Exhibit 9 the Appellant stated that after some days had passed following the abovementioned incident, and whilst he was on his way to work on a Monday morning, he was driving along a purpose built road for the construction site in a convoy of about fifteen to twenty cars. Whilst doing so another employee, Royce Germain, overtook all those fifteen to twenty cars at high speed spraying rocks over all the motor vehicles. In Exhibit 9 the Appellant said that when he arrived at work he said to Mr Germain "[t]hanks for spraying everyone's cars with rocks this morning mate". The Appellant said that Mr Germain just laughed at him. At this time the Appellant said that Mr Schofield was standing to his right and did not comment. According to Exhibit 9 this further reduced the Appellant's confidence in management's focus on addressing difficult situations in the workplace. [28] The Appellant said in Exhibit 9 that, at lunch on that day Mr Germain came over to him and sat down in front of him in the lunch shed and asked him how the stone chips were going on his vehicle. The Appellant said he responded "not real good Royce" and Mr Germain then laughed "uncontrollably" in the Appellant's face. The Appellant indicated in Exhibit 9 that it was his belief that management took no action against Mr Germain because his father was the Project Services Manager for the entire Gatton Correctional site. [29] The Appellant, in Exhibit 9, further stated that on this same day he was spoken to by Mr McCallum. Mr McCallum told him that he had second-hand information that the Appellant had threatened to follow someone home and kill them. The Appellant said that he told Mr McCallum that the allegation was ridiculous. The Appellant said that he was later advised by Mr Gleadhill that Mr Howarth had told Mr Germain that the Appellant was going to follow him home and kill him. [30] The Appellant further stated, in Exhibit 9, that later that week he went and told Mr McCallum about Mr Germain's driving and Mr Howarth's comments to Mr Germain. The Appellant said he told Mr McCallum that he wanted Mr Howarth off the job. The Appellant stated that Mr McCallum told him that he, Mr McCallum, had told Mr Howarth that day to "piss off", "fix his drug problem or alcohol problem or problem with his wife" and he could come back and apologise to all. The Appellant further stated that Mr McCallum told him that he was to work with Mr Germain and that he was to make his day very difficult. In his evidence-in-chief the Appellant confirmed the account of this incident as outlined in Exhibit 9. [31] Under cross-examination the Appellant said that he thought the Gatton Police should have been out on the road that day. The Appellant said that he was "cruising along" the road when a car pulled in behind him and that car was really close to his vehicle. There were also some cars in front of his vehicle. The Appellant said that he tapped his brakes just to flash the light to suggest to the person following him to hang back a little. The Appellant said that when he did that Mr Germain pulled out and just flew down the road and overtook everyone. The Appellant admitted that he did not know whether management had spoken with Mr Germain about the incident but believed that if he had been spoken to about the incident he, the Appellant, would have known. Under cross-examination about the interaction between the Appellant and Mr Germain in the afternoon, the Appellant indicated that Mr Germain had "a bit of a chuckle". This was in contrast to his account in Exhibit 9, which was confirmed in his evidence-in-chief, where he said that Mr Germain "laughed uncontrollably in my face". When this was pointed out to the Appellant he said that Mr Germain had a bit of a laugh and that he showed a bit of disrespect and he, the Appellant, just hopped up and walked out. The Appellant was apparently the only employee who complained about Mr Germain's driving on that day. [32] Mr McCallum's evidence was that the Appellant came to him and complained that rocks had been sprayed on his motor vehicle whilst he was driving to work on Miller Road. According to Mr McCallum the Appellant said that it was Mr Germain who caused the spraying of the rocks as he overtook him on the road. The Appellant asked Mr McCallum to do something about the matter. Mr McCallum advised the Appellant that as it had happened outside the Project Site he could not control Mr Germain's driving and if he needed to take the matter further he would have to go to the Gatton Police. [33] On the Appellant's evidence there were fifteen to twenty cars that were overtaken by Mr Germain on that particular morning. The only person employed by the Employer who complained was the Appellant. It is apparent from the cross-examination of the Appellant that his actions in tapping his brakes may have upset Mr Germain. Whether Mr Germain just overtook the Appellant's motor vehicle or did overtake fifteen to twenty cars on the public road that day is a matter for the Police. Given the Appellant's exaggeration about Mr -- 5 of 17 -- 6 Germain's behaviour that afternoon (laughing uncontrollably v. a bit of a chuckle) I have difficulty accepting the Appellant's evidence that Mr Germain passed fifteen to twenty vehicles on the road in one hit. [34] In any event Mr McCallum's advice to the Appellant that if he wished to take the matter further then he should complain to the Gatton Police is appropriate advice in the circumstances. I do not find that the management action in this instance was anything but reasonable. [35] As for the Appellant's reference to Mr McCallum speaking to him about the second-hand information that the Appellant had threatened to follow an employee home and kill them, the timing of this meeting was not clarified in the hearing. As the Appellant appears to suggest that this conversation with Mr McCallum occurred on the same day of the incident with Mr Germain's driving, I will deal with it under this heading. [36] At around this time there was also a rumour circulating that the Appellant was threatening to injure Mr Howarth with a star picket. Mr McCallum had also heard rumours about Mr Howarth's aggressive behaviour and he had the complaint from the Appellant about the damage done to Mr Gleadhill's motor vehicle. It was the evidence of Mr McCallum that he decided to speak with both Mr Howarth and the Appellant and did so telling both of them to settle down. Mr McCallum said that he told both workers that such threatening type of behaviour would not be tolerated by him or the Employer. Mr McCallum said that he told the Appellant to keep away from Mr Howarth and not do anything silly. In speaking with Mr Howarth, Mr McCallum told Mr Howarth that he had noted numerous rumours about his threatening behaviour. He was further told that the discussion was to be taken as his first verbal warning. Mr McCallum said that he offered Mr Howarth any help that he needed and told him to think about it and to come back to him if he required that assistance. Mr McCallum said that Mr Howarth remained on the job and he did not have any further issues with him after that discussion. According to Mr McCallum, Mr Howarth appeared to quieten down after that discussion. [37] The Appellant denied threatening Mr Howarth and initially denied being spoken to by Mr McCallum. In re- examination the Appellant said that he could recall Mr McCallum saying something like "[t]his is a second or third-hand information, Stuart, but apparently you're going to follow someone home and kill them this afternoon". The Appellant said he responded by saying "that's ridiculous". The Appellant said that it was just a malicious rumour. In re-examination, the Appellant again denied threatening Mr Howarth or any person with a star picket. His evidence was that it was just malicious rumours on the part of Mr Germain and it was probably meant to put him under pressure as the Appellant was not happy with Mr Germain overtaking him on the road into the Project Site. [38] The Appellant said that he and Mr Howarth were not in the same discussion with Mr McCallum. The Appellant agreed that they were spoken to separately. The Appellant said that he arranged to meet Mr McCallum in the carpark as he did not want to be seen going to Mr McCallum's office for a meeting. Mr McCallum obliged him in this request. In this carpark meeting the Appellant said he was informed by Mr McCallum that he had told Mr Howarth that his conduct was unacceptable, that he told Mr Howarth to "piss off" today and fix his "drug and alcohol problem, his problem with his wife" and to come back and shake everyone's hand and apologise or he was not to come back to work at all. These details of the conversation were denied by Mr McCallum. At that point the Appellant's evidence was that Mr McCallum said he might get him to work with Mr Germain and to "give him a bit of a hard time". Once again Mr McCallum denied asking the Appellant to give Mr Germain a bit of a hard time. [39] In the cross-examination of Mr Schofield it was suggested that these conversations between Mr McCallum and Mr Howarth on the one hand, and the Appellant on the other, occurred on 20 May 2009. Mr Schofield said that he was not involved in any discussion between Mr McCallum and Mr Howarth nor was he involved in any discussion between Mr McCallum and the Appellant in relation to this matter. Mr Schofield did however indicate that he was aware that the Appellant had threatened another employee with a star picket on the job site. [40] When confronted with hearsay comments or rumours about threatening behaviour, Mr McCallum dealt with the matters. He spoke with the Appellant and told him about the rumour which the Appellant denied, he told the Appellant not to do anything silly and to keep away from Mr Howarth. In his discussion with Mr Howarth, Mr McCallum told him that his conduct was unacceptable and that he was giving him his first warning. Other than the evidence with respect to the damage to Mr Gleadhill's motor vehicle, Mr McCallum was simply acting on rumours. If Mr McCallum had not had the incident with Mr Gleadhill's motor vehicle Mr Howarth may have been able to challenge the first warning as the evidence was, to say the least, flimsy. In all the circumstances, Mr McCallum dealt with both Mr Howarth and the Appellant in an appropriate manner. Where the evidence of Mr McCallum and that of the Appellant differ I prefer the evidence of Mr McCallum i.e. I do not accept that Mr McCallum told the Appellant, in the discussion he had with Mr Howarth, that he had told him to "piss off" today and fix his "drug and alcohol problem, his problem with his wife" and to come back and shake everyone's hand and apologise or he was not to come back to work at all. -- 6 of 17 -- 7 [41] (e) Damage to the Appellant's hard hat: Some days after the incident concerning Mr Germain driving on the public road (towards the end of the second wet weather week on a Friday), the Appellant was packing his water bottle, tools and hard hat. The Appellant said that he heard Mr Howarth say "anyone not in the Union will be bashed". The Appellant said that Mr Howarth then drove with two other employees across the construction site in his utility. It was the Appellant's evidence that, in driving across the construction site, Mr Howarth deliberately drove over his hard hat which was on the ground somewhere near his motor vehicle. The Appellant said that he then took the hard hat to Mr McCallum and told him what had happened. [42] According to the Appellant, Mr McCallum gave him a new hard hat and told him not to worry about it. The Appellant's response in Exhibit 9 was that management was not following through with what he had been told about Mr Howarth i.e. basically that Mr Howarth would not continue working for the Employer if he kept causing problems. The Appellant, in evidence-in-chief, confirmed the accuracy of what was contained in Exhibit 9 in respect of this incident. [43] Under cross-examination, the Appellant agreed that the hard hat was the property of the Employer and that it was replaced immediately by the Employer. The Appellant did not believe that the incident was an accident. He agreed that the hard hat was sitting on the ground a little away from his motor vehicle. [44] Mr McCallum said that the Appellant complained to him about Mr Howarth running over his hard hat. Mr McCallum said that he then spoke with Mr Howarth about his behaviour. Mr Howarth told Mr McCallum that the damage to the Appellant's hard hat was an accident. Mr McCallum said that he then replaced the hard hat immediately. Mr McCallum said that Mr Howarth apologised for the incident and, as far as he was concerned, that was the end of the matter. Mr Schofield said he was also aware that the Appellant had complained about Mr Howarth damaging his hard hat. [45] Once again Mr McCallum was faced with two versions of what had occurred i.e. the Appellant's version that it was a deliberate act and Mr Howarth's version that it was an accident. Mr McCallum did speak with Mr Howarth immediately after the Appellant lodged a complaint and gave Mr Howarth an opportunity to explain his actions. On the evidence before me I cannot find that management acted in an unreasonable manner. [46] The Appellant suggested that this was another instance of management not following through with what he had been told by Mr McCallum i.e. that Mr Howarth would not continue working for the Employer if he kept causing problems. This is a reference to the earlier discussion that the Appellant had with Mr McCallum in the car park where I have preferred the evidence of Mr McCallum to that of the Appellant as to the content of that discussion. Management took appropriate action in speaking with both the Appellant and Mr Howarth. In circumstances where Mr McCallum was given conflicting versions of events it is difficult to see what further action management could have taken at this time. [47] (f) Approach to Appellant by Mr O'Halloran about joining the CEPU: After a meeting of plumbers on the Project Site the Appellant said in Exhibit 9 that he was approached by Mr O'Halloran to join the CEPU. The Appellant said that Mr O'Halloran "stood over me with his hands on the table" and demanded he join the CEPU. The Appellant said that Mr O'Halloran said "[i]t has to be sorted out today, Stuart". The Appellant said that he told Mr O'Halloran that he would pay his union fees when the CEPU sorted out the problem with pays. The Appellant said that Mr O'Halloran then read out the names of employees who were not members of the Union. The Appellant then walked out and went over to Mr McCallum who was in his car out the front of the office and asked him "[d]o I have to join the Union, Troy" and Mr McCallum responded that he did not have to join the Union. The Appellant, in evidence-in-chief, confirmed the account of this incident as stated in Exhibit 9. [48] Under cross-examination the Appellant agreed that he had some discussions with Mr O'Halloran on 19 June 2009 when he was at the site having a meeting of members about enterprise bargaining. The Appellant agreed that Mr O'Halloran said that if any person was not willing to join the union they should leave the meeting i.e. the meeting was for union members only. The Appellant agreed that he told Mr O'Halloran that he would join the union if the union represented him on a back pay issue related to his previous employer in NSW. Mr O'Halloran responded by saying that the union would only represent him on issues arising after he joined the union. [49] It was the evidence of Mr O'Halloran that he attended the Project Site to speak with the CEPU plumber members. Mr O'Halloran said that the Appellant was in the meeting room at the time. Mr O'Halloran said that when addressing the meeting he asked for any persons who were not members of the union to leave the meeting. Mr O'Halloran said that he did not specifically ask the Appellant to leave the room, just any non-members. He did however know that the Appellant was not a member at the time, given a previous conversation he had had with the Appellant. [50] Mr O'Halloran further recalled an occasion where he spoke with the Appellant and asked him whether he was a member of the union and the Appellant said that he was not a member but that he was willing to join the union if the union would help him with matters arising from earlier employment in NSW. It was Mr O'Halloran's -- 7 of 17 -- 8 evidence that he told the Appellant that he could not help him with issues of the past. The Appellant said that he would think about joining the union. [51] The Appellant also gave evidence about another meeting attended by Mr O'Halloran at the Project Site. According to the Appellant's evidence, this meeting occurred the day after the incident with Mr Gleadhill's motor vehicle. In his evidence the Appellant said that Mr Napoli had indicted to Mr O'Halloran by whispering in his ear that it was Mr Napoli's time to address the meeting and that Mr O'Halloran immediately ceased addressing the membership. After the meeting concluded Mr O'Halloran came over to speak with the Appellant. It seemed that the Appellant thought that Mr Napoli was standing over Mr O'Halloran and trying to stop him speaking to the membership. [52] Mr O'Halloran recalled Mr Napoli being at a meeting where the meeting had extended beyond the employees' lunch period and Mr Napoli informed Mr O'Halloran of this so that the meeting could conclude. Had this not occurred Mr O'Halloran said the membership would have been seen to be on strike under the legislation with the result being loss of pay for his members. The lunch meeting ceased at that point. [53] Mr O'Halloran in his evidence was clear that he did not threaten the Appellant at any time. Mr O'Halloran explained that membership of the CEPU was not mandatory and he was well aware of the freedom of association provisions in the federal industrial legislation and the consequences of that legislation. I accept Mr O'Halloran's evidence in this regard. [54] I prefer the evidence of Mr O'Halloran and Mr Napoli where their evidence differs to that of the Appellant. The Appellant, as a non-member of the CEPU, was not entitled to remain in a meeting of members of the CEPU. Mr McCallum's response when asked by the Appellant whether he had to join the union was also correct. I find that the Appellant knew at all times that he was not required to join the union. Once again there is no evidence to suggest that management did not act in a reasonable way in relation to this matter. [55] (g) An incident where the Appellant was advised that "the Ipswich boys run in packs": The Appellant, in Exhibit 9, said that on 1 July 2009 (his last day of employment) he mentioned to another worker that an employee had threatened him saying that he would sort him out after work. The employee to whom he mentioned the matter said "the Ipswich boys run in packs" which the Appellant said "stressed me out enough to leave my job that afternoon". The Appellant said that he knew from the previous history of management that nothing would be done about "the Ipswich boys". The Appellant said that he then went to the Gatton Police with his concerns and then returned to Lismore. [56] The Appellant's evidence-in-chief was that Adam Bane, who had been employed as a labourer, had been given the job of storeman to sort out the product coming onto the Project Site. The Appellant said that he walked over to the area where Mr Bane worked early one morning to place a roll of water pipe into a container. Whilst in the area the Appellant tried to find some duct tape to wrap up the roll of poly pipe. Mr Bane suggested to him that he just leave the roll of poly pipe on the ground and he would look after it. The Appellant's evidence is that Mr Bane used a couple of swear words and he walked over to him and suggested that he didn't need to be spoken to in that manner. [57] Under cross-examination the Appellant admitted that he did dump goods on the floor outside the container whilst he went inside to find some duct tape. This evidence contradicted his earlier evidence-in-chief where he said he went in to find some duct tape and it was then that Mr Bane suggested to him that he just leave the roll of poly pipe on the ground. If the goods were already dumped on the ground outside the container then Mr Bane might clearly have had a reason to get upset. There is nothing to suggest that the Appellant informed Mr Bane that he had just dumped the goods on the ground whilst looking for the duct tape and was going to place the goods in the correct place when he found the duct tape. Mr Bane would have had no reason to know that the Appellant was going to roll up the goods and place them in the appropriate place once he found the duct tape. [58] After leaving the store area, the Appellant said he walked over to see Mr McCallum however Mr McCallum was not in his office. At no stage did he speak with Mr McCallum about this incident. The Appellant's evidence is that he left the Project Site shortly thereafter after resigning from his employment. [59] The Appellant did however speak with a fellow employee, Brett, and told him that Mr Bane had said that he was going to sort him out after work. Brett just turned around and walked away and the Appellant thought that Brett's reaction was a funny reaction. A short time later Brett came back and said "Stuie, you realise the Ipswich boys run in packs". The Appellant said that Brett was not threatening him at all by saying that the Ipswich boys run in packs. The Appellant thought that Brett was giving him some advice. Brett was not called to give evidence in this proceeding. There was no evidence given of any person coming from "Ipswich" i.e. no evidence of Mr Bane, Mr Howarth, Mr Gleadhill or Mr Chapman coming from Ipswich. -- 8 of 17 -- 9 [60] Mr Schofield's evidence was that the Appellant had indicated an interest in being appointed as the storeman on the Project Site. Mr Schofield said that the Appellant, as a plumber, was not suited to the storeman role and that Mr Bane, a labourer on the site, was better suited. Whilst Mr Schofield said that he was not made aware by the Appellant of any issues between he and Mr Bane he said that Mr Bane had informed him of an occasion where the Appellant had just thrown some gear on the floor and said to Mr Bane "[y]ou're the storeman you clean it up". [61] Once again the Appellant admitted that the issue between him and Mr Bane was never raised with management whilst he was employed by the Employer. The comments allegedly made by Brett about Ipswich boys running in packs did not seem to have any particular relevance. Again there was no evidence that the Appellant had raised his concerns about Brett's comments with management. Mr Bane obviously raised the issue of the Appellant throwing his gear on the floor of the store area with management however the Appellant had already resigned his employment with the Employer. Further, the Appellant did not raise any of these concerns with any member of management prior to resigning from his employment. It is thus difficult to suggest that there was any unreasonableness on the part of management in respect of this issue. [62] The Appellant did not raise this issue with any management representative prior to resigning his employment and/or prior to his leaving the Project Site. The Appellant's evidence is that he did not see Brett's actions as an attempt to threaten him yet it was Brett's statement that "Ipswich boys run in packs" that stressed him out sufficiently that he resigned his employment shortly thereafter. In the absence of any knowledge whatsoever about Brett's comments to the Appellant it is difficult to find that the non action by management was not reasonable or taken in a reasonable manner. The only issue that went to management was from Mr Bane who complained, at some time, that the Appellant threw some gear on the floor of the store area. [63] (h) Discussion with Mr Napoli after the Appellant resigned his employment with the Employer: In Exhibit 9 the Appellant said that he spoke with Mr Napoli who advised him that there was no work available. The Appellant said that Mr Napoli did not address his concerns and brushed him off after he told him that he had approached the Police about certain matters. [64] According to the evidence of the Appellant this discussion occurred the day after he left his employment with the Employer i.e. 2 July 2009. By this time the Appellant was in Lismore and the Appellant said that he asked Mr Napoli if he could have a transfer to some other work. The Appellant said he thought Mr Napoli would recognise that he had done a good job for the Employer and that he might give him a transfer. The Appellant also said that he informed Mr Napoli of what had occurred on the previous afternoon after he left the Project Site. According to the Appellant Mr Napoli told him to "just get over it and move on" and then he hung up on the Appellant. [65] Mr Napoli said he had a telephone conversation with the Appellant wherein he informed him that there was no work available for him but indicated that this conversation occurred a week or two after the Appellant resigned his employment with the Employer. Mr Napoli said that by this time the Employer had engaged new staff. [66] On both the Appellant's and Mr Napoli's account of this discussion, the discussion occurred after the Appellant had resigned his employment with the Employer i.e. it was either on 2 July 2009 or some one to two weeks afterwards. Whatever Mr Napoli may have said during this conversation it could not have been a stressor in the Appellant's decompensation as it occurred after the employment had ceased. [67] (i) An issue with a receptionist employed at the Respondent's Head Office in Sydney: The Appellant, in Exhibit 9, said that after contacting the Employer's Head Office in Sydney, the office receptionist refused to speak to him stating that she was not an authorised person and hung up on him several times. Mr Napoli said that the Employer's Head Office was receiving numerous calls from the Appellant and that staff were having difficulty dealing with the Appellant. Apparently the Employer's Chief Executive Officer had spoken with the Appellant for one and a-half hours on the telephone on one occasion and Mr Napoli thought that in so doing the Chief Executive Officer was displaying a great degree of dedication particularly when the Employer employs about 400 staff. [68] It is apparent that this incident occurred after the termination of the Appellant's employment with the Employer and at a time after the Appellant had decompensated. [69] (j) Discussion with Baulderstone Hornibrook, the principal contractor on the Project Site: The Appellant said that he spoke with Baulderstone Hornibrook advising them of what had happened in his employment with the Employer. The Appellant said that he was notified that Baulderstone Hornibrook would speak with the Employer. Baulderstone Hornibrook advised him to speak with the Employer however the Appellant stated that the Employer refused to speak with him. After attempting to speak with the Employer the Appellant said that he was involved in a motor vehicle accident which was caused by a concentration lapse. -- 9 of 17 -- 10 [70] It is apparent that this alleged incident also occurred after the Appellant's employment with the Employer had concluded and at a time after the Appellant had decompensated. [71] (k) Statutory Conference in Fair Work Australia as a result of an unfair dismissal application by the Appellant: The Appellant, in Exhibit 9, said that he applied to Fair Work Australia alleging he had been unfairly dismissed. At the Fair Work Australia Conference the Appellant alleged Mr Napoli told the Commissioner that the Appellant had threatened to burn down the Employer's office, that he had been arrested by Police and that he had been locked up in a mental health clinic. These statements by Mr Napoli were said to be a "complete fabrication". The Appellant said that this was a further instance of harassment by the Employer. This Conference occurred sometime after the Appellant's employment with the Employer had ceased and after the Appellant had decompensated. [72] Whilst the abovementioned issues were the stressors raised by the Appellant with WorkCover in support of his claim for compensation, the Appellant also raised a number of other issues throughout the course of the hearing which he indicated either resulted in, or contributed to, his psychological injury. These matters included the following: • Meeting on site arranged by the Head Contractor on the Project Site, Baulderstone Hornibrook: The Appellant seemed to suggest that an issue involving a trench being dug too deep was a concern for him. The Appellant's evidence was that he suffered stress as a result of someone being in the trench that was greater than 1.2 metres and the trench had "caved in". The Appellant cross-examined each of the Q-COMP witnesses about this issue. Mr Schofield's evidence was that he recalled a meeting at the site arranged by Baulderstone Hornibrook. Mr Schofield said that it was part of his job to ensure that all work on the site was done safely. There were three safety officers on the total Project Site from Baulderstone Hornibrook. In addition the Employer had its own safety officer and to the best of his knowledge the Employer was doing everything safely. According to Mr Schofield the incident arose from an oversight on the excavation of the trench. The plumbers working in the area did not take note of the fact that the trench had gone below the appropriate level. According to Mr Schofield, no dangerous situation arose however the depth of the trench did not comply with the legislation and the matter was rectified immediately when brought to the Employer's attention by a Baulderstone Hornibrook representative. Mr Schofield said that there were no further safety issues on the site after this issue. In re-examination Mr Schofield was shown the photograph of the excavation (Exhibit 14) and stated that there was no problem with the trench as shown on the photograph as there was no person in the trench when the photograph was taken. According to Mr Schofield, the hole itself was not the problem rather the trench became unsafe only if a worker was in the trench performing work. Mr Napoli's evidence on this issue was as follows: ¾ Baulderstone Hornibrook had stipulated that the depth of trenches on the site was to be 1.2 metres rather than the limit imposed by legislation of 1.5 metres deep; ¾ there was no evidence of any "cave in" of the trench in Exhibit 16 and no evidence that the trench was falling or had fallen down; ¾ when Baulderstone Hornibrook drew the Employer's attention to an issue with this particular trench it was rectified immediately. Mr Napoli said that he was made aware of the issue by Mr McCallum; and ¾ in response to the Appellant's suggestion that there were no ladders on site, Mr Napoli said that there were ladders delivered to the Project Site. Mr Napoli said that he was not aware of any incident where Baulderstone Hornibrook reported a failure to have ladders in the trenches being dug by the Employer's workers. It was Mr Napoli's evidence that there were a number of ways to enter and exit trenches and the use of ladders was only one of those methods. Mr McCallum was aware of a tool box meeting with Baulderstone Hornibrook about the depth of a trench. His evidence was that there was a trench on the site that was quite wide and reasonably deep. There were some electrical conduits along the side of the trench that were sitting just off the bench of the trench. The Employer and Baulderstone Hornibrook tried to work out the best way of dealing with the conduits because it was quite a long run and they were not supported. It was decided amongst all to drive some star pickets in, support the conduits with rope at intervals probably three metres apart. Mr McCallum said that he indicated to the workers that if they were not happy with that method of -- 10 of 17 -- 11 overcoming the problem to then just cut the conduits at either end and throw them up on the bank and get rid of them. If that had to occur Mr McCallum said that he would get Sovereign (the contractor who owned the conduits) to put the conduits back when the Employer had backfilled. He recalled that the Appellant was working on that trench. Mr McCallum said that he had informed all workers on the site that any trench over 1.4 metres in depth would be benched in order to prevent anything falling. On this particular trench it was decided to put a ladder at one end and cut some steps into the bank at the other end so that the workers had two points of exit from the trench. • Failure of the Employer to complete Incident Reports or Risk Assessments on each of the issues raised in the Appellant's Statutory Declaration: The Appellant was most concerned that the Employer failed to ensure that Incident Reports were completed and/or risk assessments undertaken in respect of the damage to Mr Gleadhill's motor vehicle by Mr Howarth, the threat to Mr Chapman, the driving of Mr Germain on the public road and the damage to the Appellant's hard hat by Mr Howarth. It was the Appellant's position that anything that endangered someone on the job site required a risk assessment. In respect of the damage to Mr Gleadhill's motor vehicle, Mr Napoli said that there was no danger to anyone as there was no occupant in the motor vehicle at the time it was damaged. The Appellant's response was that it was an action of a violent nature towards someone's property. Mr McCallum said that risk assessments were undertaken on most tasks that were performed on site and that they are a job safety analysis. Mr McCallum said that risk assessments were not done on individuals - it is a risk assessment on a task. • Events of the afternoon of 1 July 2009 after the Appellant had resigned from his employment with the Employer and left the Project Site: Whilst this issue was not listed as a stressor by the Appellant a deal of evidence was adduced about the afternoon of 1 July 2009. It was the evidence of the Appellant that before he left the Project Site on 1 July 2009 he approached another organisation, Saunders Plumbing, for a job. Saunders Plumbing was performing work on the treatment plant for the Gatton Correctional Facility. It was the Appellant's evidence that he resigned his employment with the Employer on 1 July 2009 after he received Brett's comments about the Ipswich boys. After leaving the Project Site on that afternoon the Appellant's evidence was that he went to the Gatton Police Station (something he had done on several previous occasions) and suggested to the Police that they should undertake a drug test on a particular employee of the Employer giving the Police the car registration number of that employee. The Appellant saw the reporting to Police as fulfilling not only his duty of care but also his obligation as an employee. After he left the Gatton Police Station he then went to the local Gatton (not Ipswich) Hotel for a beer. When he went into the local hotel he noticed two young guys sitting on his right side. These two guys were dressed in Adidas tracksuit pants with American basketball shirts. The Appellant said that these guys were dressed similarly to guys on the Gold Coast and he became apprehensive. Under cross- examination, the Appellant confirmed that he associated these people with the Gold Coast and not with the "Ipswich boys" that he had been told about earlier that day. The Appellant said that he had a sip of beer and thought that he would sit by himself, facing the wall of the hotel bar. As he was about to do this the Appellant said that he noticed one of the guys get up and go to the other end of the window sill area in the bar. This person then asked the Appellant how his day was. The Appellant responded by saying that it was not the best day that he had had in his life. The Appellant said that this person then looked at him oddly and gave a snickering laugh. It was the Appellant's evidence that this person displayed a strange body language. The Appellant said that he then reflected of what was possibly happening. The Appellant said that then another person came into the bar dressed in similar attire and sat down towards his left. These two people then started crossing out Keno tickets. The Appellant then noticed that the guy sitting to his left called out to another person walking down the street to come into the bar for a drink. This person was also dressed in the same attire as the other two persons. The Appellant expressed concern at the situation and got up and "tapped" his pockets to suggest that he needed to get his cigarettes. As the Appellant walked to his car he noticed another two people dressed in similar attire sitting outside the newsagency. As he walked to his car the Appellant said that these two people started walking towards him. He said that he casually walked towards his car. One of these people then gave the Appellant the same kind of snickering laugh as he passed the Appellant i.e. the same laugh as the person in the hotel had previously given him. The Appellant confirmed in cross-examination that no one threatened him either in the Gatton Hotel or outside the Hotel. -- 11 of 17 -- 12 The Appellant said that he then jumped into his car and returned to the Gatton Police Station where he informed the police officers what had occurred at the Gatton Hotel. In so doing the Appellant apparently parked his motor vehicle at the back of the Police Station (an area obviously reserved for employees of the Queensland Police Service). The Appellant said he telephoned Mr McCallum from his motor vehicle and said that Mr McCallum suggested that he take a couple of days off work. The Appellant's evidence is that he responded by saying "Troy, you know, you're an idiot. You should have done something about this and not allowed this to get out of control". One of the police officers then came to the parking area and noticed the Appellant in his vehicle in the Police carpark. According to the Appellant this officer told him that he should not be parked out the back of the Police Station. The Appellant responded by saying that "I'm just under a bit of pressure at the moment". The Police officer told him to move his car but he said he "just froze" and he "didn't know what to do". The Appellant said that ultimately he then started driving towards Lismore however his recollections of how he arrived in Lismore are quite hazy. • Hospitalisation of the Appellant at the Lismore Hospital: Whilst this issue was not listed by the Appellant as a stressor it does provide some insight to the Appellant's state of mind around this time. It was the Appellant's evidence that given the level of stress he was experiencing he attended the Lismore Police Station on 3 July 2009 and told them what he had experienced since leaving the Project Site on 1 July 2009. A Police Constable at the Lismore Station indicated to him that he appeared a "bit stressed" and that it would be a good idea to go to the Lismore Hospital. According to the Appellant's evidence-in- chief he went to the Lismore Hospital for medical treatment escorted by New South Wales police officers (apparently the Appellant drove his own vehicle to the Lismore Hospital). This was the first medical treatment the Appellant had received since the events of 1 July 2009. The Appellant was admitted to a secure unit in the Mental Health Unit of the Lismore Hospital. It was the Appellant's evidence that he did not get any treatment at the Lismore Hospital. Rather he said he was incarcerated and just left alone. He said he was at the Lismore Hospital for a few days. It was his evidence that he was allowed to leave the Hospital during the day to attend at his parent's home in Lismore but returned to spend the evenings at the Hospital. After he was released from the Lismore Hospital the Appellant said that he suffered a nervous breakdown and was "terrified" at how he had been misunderstood by the Lismore Police and the Lismore Hospital staff. Medical Evidence [73] Whilst the Appellant admitted to various aspects of the Lismore Hospital Patient Notes (that he had presented at the Lismore Police Station on 3 July 2009, that he had been drinking heavily the previous night, that the Police suggested he go to the Hospital, that he was currently working at the Gatton gaol, that a series of workplace frictions with workmates had led him to fear for his safety, that he drank around ten full strength beers daily and that he had given up THC i.e. tetrahydrocannabinol or cannabis for the past three months) he did not agree that he told staff at the Hospital about a "crack ring" at the Employer (saying that these were not his words) and nor did he say that there was "a conspiracy among bikies who are also trying to …". The Appellant admitted that there were bikies on the Project Site and that they would stand and watch everyone drive in to work each day. Under cross-examination the Appellant admitted that he had been drinking about ten full strength beers per day since about the age of eighteen and that he had been drinking that quantity of beer on a fairly consistent basis. [74] On discharge from the Lismore Hospital the medical staff indicated to the Appellant that there was a need for diagnostic clarification of his illness. In addition, he received advice from the medical staff about his pattern of alcohol usage. The Appellant further agreed that the discharge summary prepared by the Registrar of the Richmond Clinic (the Mental Health Unit) at the Lismore Hospital noted a diagnosis of psychotic disorder and alcohol abuse. [75] The Appellant indicated in cross-examination that he had received copies of the Goonellabah Medical Centre Patient Notes which recorded that it was suspected that he had suffered a manic episode in the days following his resignation from employment with the Employer. It also indicated that the Lismore Police were correct to send the Appellant to the Richmond Clinic at the Lismore Hospital. The Appellant however disagreed with the tentative diagnosis that he had suffered a manic episode on that occasion. The Appellant admitted that on the evening of 2 July 2009 (i.e. prior to the visit to the Lismore Hospital on 3 July 2009) he had been drinking heavily. The Appellant said that he had consumed a bottle of bourbon and confirmed that he was taking epileptic medication at the time. -- 12 of 17 -- 13 [76] The Appellant said that he had seen Dr Petroff in or about March 2010. The Appellant's evidence was that Dr Petroff suggested that he suffered post-traumatic stress disorder and diagnosed that the Appellant probably suffered a bipolar disorder. The Appellant said that he could not recall much of what Dr Petroff said although he could remember consulting her. [77] The Appellant consulted with Dr Stephen Huntsman, Psychiatrist, having been referred to Dr Huntsman by Dr Andrew Binns of the Goonellabah Medical Centre for a mental health care plan assessment. The referral letter is Exhibit 12. Dr Huntsman first saw the Appellant on 8 February 2010 and produced a medical report to Dr Binns dated the same day (Exhibit 11). Whilst Dr Huntsman was called by the Appellant as a witness it should be noted that Q-COMP facilitated his attendance at the hearing. [78] It should also be noted that Dr Huntsman initially gave his evidence on 6 December 2011 however, on a review of the transcript in January 2012 it was noted that Dr Huntsman's evidence was not recorded. Dr Huntsman was then recalled and gave his evidence again on 6 February 2012. [79] In his medical report Dr Huntsman noted that the Appellant was involuntarily admitted to the Richmond Clinic at Lismore Hospital. Dr Huntsman also noted that the Appellant remained, as of 8 February 2010, in a highly agitated state. Dr Huntsman noted in his Mental State Examination the following: "He presented as a casually dressed, appropriately groomed man who was co-operative but intensely preoccupied. His speech was accelerated, almost pressured, highly detailed and circumstantial. However, there was no flight of ideas. There were overvalued ideas of persecution, but these were not frankly delusional. There were no hallucinations. His mood was dysphoric and anxious, his affect reactive.". [80] In his Provisional Diagnosis Dr Huntsman recorded the following: "I felt that Stuart had developed overvalued ideas of persecution in the context of initial workplace stressors. There was also evidence of a high degree of obsessionality. He verged on delusional disorder, persecutory type, but I felt his symptoms primarily had evolved from anxiety due to an over-reaction in response to what was probably genuine intimidation.". [81] Dr Huntsman noted in his Patient Detail Form (Exhibit 13) that the Appellant had a past history of epilepsy since the age of twenty-one and also noted "alcohol binge abuse" in his drug and alcohol history. Dr Huntsman saw the Appellant again on 10 March 2010 where the Patient Detail Form (Exhibit 13) records "[r]emains very preoccupied with the injustices he has encountered" and that he believes "management failed to address the issue of workplace bullying" and that "[t]hreats of violence toward him were apparently not addressed". There is also the comment in the Patient Detail Form that he was told "[t]he Ipswich Boys hunt in packs". [82] Whilst Dr Huntsman in Exhibit 13 noted that there were no clear delusions in the Appellant, his evidence before the Commission indicated that he was of the view that the Appellant probably suffered from a delusional disorder. This view was expressed after he had been informed in cross-examination of some of the evidence before the Commission i.e. the events of 1 July 2009 at the Gatton Hotel and the Gatton Police Station, the events of 3 July 2009 at the Lismore Police Station and the Lismore Hospital, the level of the Appellant's alcohol consumption, and the fact that the Appellant had used tetrahydrocannabinol in the past. [83] Dr Huntsman's evidence was that when the Appellant first consulted him he was quite agitated about events that had taken place in his workplace where he had apparently been threatened with violence, had been bullied and where there were some events involving the use of drugs. Dr Huntsman said that in preparing his medical report he relied upon the information given to him by the Appellant. He said that as he was the Appellant's treating Psychiatrist he largely accepted what the Appellant told him and that he had no way of verifying the truth or otherwise of the Appellant's account. His goal was to try and assist the Appellant's general practitioner as well as the Appellant and any questioning of the veracity of what the patient told him would not assist in that role. [84] According to Dr Huntsman, if the Appellant were suffering a delusional disorder then that would affect his perception of what might have been occurring in the workplace. Dr Huntsman said that delusional disorder by definition is a fixed belief as to what is happening that is not actually the case. If these things complained of are not confirmed then, according to Dr Huntsman, the person has a delusional disorder. Dr Huntsman said that he had always entertained the thought that the Appellant had a delusional disorder however he was not in a position to fully establish the facts of what had taken place. According to Dr Huntsman, a delusion disorder is a very uncommon disorder. It is fairly rare and does not have a genetic basis like other psychiatric conditions. In someone suffering from a delusional disorder the thought processes are intact. The person is normal in every other respect. With people suffering persecutory delusions, the delusions are closer to normal human experience or more in keeping with reality i.e. the delusions are about things that could hypothetically have happened. -- 13 of 17 -- 14 [85] Dr Huntsman said that he did not agree with Dr Petroff's diagnosis that the Appellant suffered a bipolar disorder. He said that he only saw the Appellant on two occasions but saw no evidence of a bipolar disorder. Dr Huntsman said that the Appellant certainly spoke rapidly but he felt that was because the Appellant seemed to have a lot to say, and because the Appellant was very concerned and preoccupied about the persecution he had experienced in his workplace. Dr Huntsman said that the Appellant's concerns and preoccupation from his perspective could have been coloured by his delusional disorder. It was Dr Huntsman's evidence that a delusional disorder would evolve in an individual over a period of time - probably months. Conclusion [86] As mentioned earlier it is the Appellant who must prove, on the balance of probabilities, that the claim is one for acceptance i.e. that: • he suffered an injury being a psychological injury; • the psychological injury arose out of, or in the course of, his employment with the Employer; • the employment with the Employer was a significant contributing factor to the psychological injury; and • the psychological injury is not excluded by s. 32(5) of the Act i.e. the psychological injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the Employer in connection with the worker's employment and/or that the psychological injury did not arise out of, or in the course of, the Appellant's expectation or perception of reasonable management action being taken against him. [87] Clearly the Appellant has suffered an injury. On Dr Huntsman's evidence the Appellant probably suffered a delusional disorder. Given the evidence, I am of the view that the Appellant's delusional disorder was developing probably throughout the course of his employment with the Employer. [88] The next issue is whether the Appellant's delusional disorder arose out of, or in the course of, his employment with the Employer. The test as far as the words "arising out of" is concerned, is found in Avis v WorkCover Queensland2 and WorkCover Queensland v Curragh Queensland Mining Pty Ltd3: "… is wider than that posited by the words 'caused by' and that the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship would be necessary if the phrase used were 'caused by' …". [89] Given that the Appellant's delusional disorder appears to have progressed during the course of his employment with the Employer then it may be that his injury has arisen in the course of his employment. [90] The next issue for determination is whether the Appellant's employment was a significant contributing factor to his injury or to his delusional disorder. In this regard the following authorities are relevant: In Chattin v WorkCover Queensland4 Williams P endorsed the proposition that: "The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post- accident condition.". In Croning v Workers' Compensation Board of Queensland5 de Jersey P held that the employment needed to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurred. In Newberry v Suncorp Metway Insurance Ltd6 at 529 Keane JA, with whom de Jersey CJ and Muir J agreed, said: "[27] … The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made. … 2 Avis v WorkCover Queensland (2000) 165 QGIG 788 3 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 4 Chattin v WorkCover Queensland [1999) 161 QGIG 531 5 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 6 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd.R. 519 -- 14 of 17 -- 15 [41] … the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been 'a significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment. [42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' and intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.". In Carman v Q-COMP7 at 513, Hall P said: "It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an 'injury' if the work is a cause of the onset or intensification of pain. Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.". [91] When one considers the evidence with respect to each of the relevant stressors relied upon by the Appellant I am unable to form the opinion that the real effective cause of the Appellant's delusional disorder was his employment. Rather the employment appeared to be merely the setting in which his delusional disorder got to the stage it reached on 1 July 2009 and shortly thereafter. [92] In terms of the Appellant's perception of what did, and did not, occur I refer to the decision of Hall P in Vesna Misevski v Q-COMP8 at para [30]: "One consequence [of transactions found to be without substance] is that those transactions cannot have contributed to the development of her psychological condition. A transaction which did not occur cannot have contributed to the development of anything.". [93] In dealing with each of the stressors relied upon by the Appellant I find as follows: • Mr Howarth's comments to the Appellant about joining the CEPU: The fact that the Appellant knew that he was not required to join the CEPU, that Mr Howarth was not acting in any official CEPU capacity and that the work being undertaken was at a construction site is more than suggestive of the fact that this was not the stressor that the Appellant claimed it to be. The Appellant admitted that he was not sufficiently shocked to advise management of the conduct; • the Appellant's shock at witnessing Mr Howarth damage Mr Gleadhill's motor vehicle: The evidence indicated that the real cause for concern for the Appellant was that nothing was done about Mr Howarth when he complained to management about the incident. The incident did not involve him or his property. Unbeknownst to the Appellant, management did take some action. They ensured that Mr Gleadhill was happy with an outcome organised between he and Mr Howarth. Mr Gleadhill did not ask management to take the matter further. It was simply a perception by the Appellant that management had done nothing about the incident. In fact the incident was one of the factors leading to Mr Howarth receiving a first warning; • the suggestion that Mr Chapman had been threatened by Mr Howarth: Once again the Appellant was shocked by a lack of response by management. Mr Schofield and Mr McCallum both denied knowing anything about a threat made against Mr Chapman although the Appellant's evidence is that he informed Mr Schofield on two occasions about the matter. If Mr Chapman did not complain to management of any threat to him what was management expected to do? Management would be remiss to deal with a matter 7 Carman v Q-COMP (2007) 186 QGIG 512 8 Vesna Misevski v Q-COMP (C/2009/29) Decision <http://www.qirc.qld.gov.au> -- 15 of 17 -- 16 in circumstances where they were relying on the hearsay from the Appellant. Management would need to have a complaint from Mr Chapman before they could do anything about the matter. Once again the threat was not made to the Appellant or about the Appellant and it was his perception that once he informed management of an issue then they should act upon it. In any event I have indicated that I prefer the evidence of Mr Schofield that he was not informed by the Appellant of any threat against Mr Chapman. In those circumstances this issue could not have contributed to anything; • the incident involving Mr Germain driving on the public road: Again it was the Appellant's perception that management should have reported this incident to Police. The Appellant was informed that if he wished to take the matter further he should report it to Police. Whilst I found that the Appellant exaggerated his version of what occurred with Mr Germain laughing "uncontrollably" in the Appellant's face, I also have great difficulty accepting the Mr Germain would have passed fifteen to twenty travelling motor vehicles at the one time. As I have already indicated it seems to me that the Appellant's actions in "tapping" his brake may have been the cause of Mr Germain passing the Appellant's motor vehicle. In any event I do not find that this was a significant contributing factor to the Appellant's delusional disorder; • the damage to the Appellant's hard hat: The Appellant reported to Mr McCallum deliberate damage by Mr Howarth to his hard hat. Mr McCallum replaced the hard hat immediately. The Appellant had left his hard hat on the ground some distance from his motor vehicle. Mr McCallum then spoke with Mr Howarth who acknowledged that the hard hat was damaged by him but stated that it was an accident. Mr McCallum was confronted with one version that said it was deliberate and one version that said it was an accident. The Appellant did admit during cross-examination that he wanted Mr Howarth removed from the Project Site and had asked management to do this. Whether management had any grounds to dismiss Mr Howarth from his employment is quite a different matter. On the evidence before me from the Appellant, management would not have had sufficient grounds to dismiss Mr Howarth from his employment. Thus the Appellant's desire to have him dismissed may have caused the Appellant to look for fault on Mr Howarth's part. Whether there was a deliberate act on the part of Mr Howarth or whether it was an accident is not known. Once again this stressor could not be seen to be a significant contributing factor to the Appellant's delusional disorder. • the Appellant's issues with Mr O'Halloran appear to have no basis in fact. Mr O'Halloran asked non- members of the CEPU to leave a meeting of members. He was quite entitled to do so. If the Appellant wished to participate in the meeting he ought to have become a member of the CEPU. The Appellant's evidence that Mr Napoli intervened in a meeting of CEPU members and stopped Mr O'Halloran speaking seemed to suggest that Mr O'Halloran was somehow subservient to Mr Napoli. This perception was totally inaccurate. The explanation of what Mr Napoli did was quite simple and was protective of the CEPU membership i.e. his actions ensured that the workers did not lose pay in respect of a CEPU meeting that had extended beyond the lunch period. What the Appellant relied upon as a stressor I find did not occur. Thus it could not have contributed in any way to his delusional disorder; • the incident where the Appellant was informed that "Ipswich boys run in packs": This involved a fellow workmate, Brett, allegedly saying "Ipswich boys run in packs" to him after an incident he had with Mr Bane. The context in which Brett said these words is not known. This incident occurred shortly prior to the Appellant's resignation from employment with the Employer. Given the state that the Appellant was in later in the afternoon at the Gatton Hotel, I cannot place much weight on his evidence of events earlier that day. In any event I have no evidence whatsoever of who were the so called "Ipswich boys". Once again I find that this incident could not have amounted to a significant contributing factor to the Appellant's injury; and • the remainder of the incidents relied upon by the Appellant in Exhibit 9 to found his claim for workers' compensation occurred after the Appellant had decompensated. They can thus not form any basis in my determination of whether the Appellant suffered an injury, over time, but no later than 1 July 2009 i.e. the day he resigned his employment with the Employer. [94] Other matters which the Appellant raised during the course of the hearing included: • the tool box meeting called by Baulderstone Hornibrook as a result of a trench being dug too deep: This meeting did not result from any complaint by the Appellant but rather from an inspection by a Baulderstone Hornibrook safety officer. The matter was rectified immediately and all staff were informed of the necessary requirements for the digging of trenches. There was no evidence that the trench was dangerous and certainly no person was injured. I have formed the view that the Appellant was not affected by this issue at all and that the issue was used by him in an attempt to bolster his case and/or cast the Employer in a bad light. The Appellant did not include this issue as a stressor in his claim for compensation and I find that it was not a significant contributing factor to his delusional disorder; -- 16 of 17 -- 17 • failure on the part of management to complete Incident Reports and/or Risk Assessments in respect of the matters raised by the Appellant as stressors: The fact is that the Appellant was not aware of the lack of Incident Reports and/or Risk Assessments until after he lodged his claim for workers' compensation i.e. after 18 September 2009. Thus this could not have been a stressor leading to his decompensation on 1 July 2009. In any event the only issue which may have required an Incident Report was the issue concerning the depth of the trench. It was however clear that the head contractor, Baulderstone Hornibrook, was aware of the issue and that the Employer rectified the problem immediately; and • the events of the afternoon of 1 July 2009 after the Appellant had resigned his employment: Once again the events at and outside the Gatton Hotel were not matters that arose out of, or in the course, of the Appellant's employment with the Employer. Nor were any of the events at the Gatton Police Station, the Lismore Police Station or the Lismore Hospital. None of these issues could have resulted in work-related stressors leading to the Appellant decompensating on 1 July 2009. [95] Whilst I have found that no one of the stressors relied upon by the Appellant was a significant contributing factor to his delusional disorder, I also find that the combination of the stressors identified were not sufficient to suggest that they were a significant contributing factor to his injury. If however I am found to be wrong and that the combination of the stressors were found to be a significant contributing factor to the Appellant injury I will also deal with the exclusion in s. 32(5) of the Act. [96] I have also throughout the evidence dealt with the issue of whether the Appellant's delusional disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the Employer in connection with the Appellant's employment. In paragraph [15] I found that stressor (a) was not raised with management so that there was no opportunity for reasonable management action to be taken. As for the stressor (b) I found in paragraph [22] that management action was reasonable and taken in a reasonable way. As for the stressor (c) I found in paragraph [26] that there was no complaint made by the Appellant to Mr Schofield and that Mr Chapman made no complaint to management. In those circumstances I could make no finding that the Appellant's psychological injury arose from management action that was not reasonable or not taken in a reasonable way. [97] In paragraph [34] I found that management's advice to the Appellant in respect to stressor (d) (i.e. to complain about Mr Germain's driving to the Police) was reasonable in the circumstances. As for the stressor (e) involving the damage to the Appellant's hard hat I found in paragraph [45] that management acted in a reasonable manner in obtaining Mr Howarth's version of events and replacing the Appellant's hard hat. As for stressor (f) I found in paragraph [54] that there was no evidence to suggest that any management action was not reasonable or not taken in a reasonable way in respect of the issues raised about Mr O'Halloran. In respect of stressor (g) I found in paragraph [62] that the matter was never raised with management prior to the Appellant resigning his employment with the Employer later in that day: Thus I cannot find that management acted in an unreasonable manner in connection with this stressor. [98] Stressors (h), (i), (j) and (k) occurred after the termination of the Appellant's employment and thus there was no issue with respect to the exclusion in s. 32(5) of the Act. In relation to the issue of the meeting called by Baulderstone Hornibrook I find that the actions of management were reasonable and taken in a reasonable way in that once advised of the trench depth the matter was rectified immediately in conjunction with the Employer's workers and Baulderstone Hornibrook employees. [99] In all the circumstances I am unable to find that management did not take reasonable management action in a reasonable way with respect to each of the matters raised by the Appellant as stressors. [100] As indicated early in this Decision the Appellant carried the burden of proof, on the balance of probabilities, that his claim for compensation was one for acceptance. The Appellant was unable to discharge that onus. In the circumstances I dismiss the Appellant's appeal against the Q-COMP decision and confirm the decision of the Review Unit of Q-COMP dated 10 June 2011. [101] Order accordingly. D.M LINNANE, Vice President. Hearing Details: 2011 October 11 December 6 and 7 2012 February 6 Released: 14 February 2012 Appearances: Mr S. Cooper appeared on his own behalf. Mr P.B. Rashleigh Counsel directly instructed by Q-COMP. -- 17 of 17 --