Bailey v Q-COMP [2012] QIRC 3

CITATION: Wayne Bailey AND Q-COMP (WC/2011/149) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Wayne Bailey AND Q-COMP (WC/2011/149) COMMISSIONER FISHER 19 January 2012 Appeal - Decision of Review Unit, Q-COMP - Witnesses - Credibility of witnesses - Operations supervisor - New factory - Workload - Inadequate staffing - Stress - Agreed worker sustained a personal injury - Psychiatric injury - Whether psychiatric injury arose out of, or in the course of employment - Whether employment was a significant contributing factor - Whether application for compensation excluded by the operation of s. 32(5) of the Act - Reasonable management action taken in a reasonable way - Appeal dismissed. DECISION [1] Wayne Bailey (the Appellant) has appealed the decision of the Review Unit, Q-COMP (Q-COMP) confirming the decision of the insurer to reject the application for compensation. Mr Bailey is an employee of the Sunshine Coast branch of BlueScope Lysaght, (BlueScope), a business of BlueScope Steel Limited, based at Coolum. Evidence [2] The following witnesses gave evidence for the Appellant: Wayne Bailey, Operations Supervisor, BlueScope, Coolum; Karen Bailey, wife of the Appellant; Peter Illet, Machine Operator, BlueScope, Coolum; Jace Mitchell, Storeman, BlueScope, Coolum; and Julie Ryan, Administrator/Customer Service Representative, BlueScope, Coolum, 2007 - 29 July 2011. Medical witnesses Dr Donna Eshuys, Clinical and Forensic Psychologist, Sunshine Coast; and Dr Peter Stobbs, General Practitioner, Noosa Clinic, Noosa. [3] The following witnesses* gave evidence for Q-COMP (the Respondent): Anthony Jamieson, inaugural Branch Manager, BlueScope, Sunshine Coast, 2006 - 27 March 2008; Steven Sargeant, Acting Branch Manager, BlueScope, Sunshine Coast, approximately March 2008 - 20 April 2008; Stuart Hill, Branch Manager, BlueScope, Sunshine Coast, 21 April 2008 - April 2010; Ian Johnson, Acting Branch Manager, BlueScope, Sunshine Coast, April - June 2010; and Roy Morgan, Branch Manager, BlueScope, Sunshine Coast, 23 June 2010 until end 2010. * Only the positions occupied by the witnesses relevant to these proceedings are listed. All witnesses are still employed in various managerial capacities with BlueScope. Credibility [4] Some of the events raised by the Appellant occurred between 2006 and 2008. Unsurprisingly, the witnesses, on occasion, had difficulty in recalling particular incidents, conversations or the sequences and dates of events. Consequently, this impacted on the quality of the evidence that was given. Added to that, Mr Bailey acknowledged that he has suffered memory loss or has an impaired memory as a result of his condition. [5] In my view, Mr Bailey's evidence was coloured by the nature of the working relationship he had with a particular manager. For example, Mr Bailey had a positive working relationship with Mr Hill and was more inclined to accept the evidence to be given by him as correct whereas he was more likely to cavil with evidence to be given by Mr Jamieson and Mr Morgan, with whom Mr Bailey had a less happy relationship. Mr Bailey also did not trust Mr Johnson and was therefore cautious about his evidence. [6] I have not accepted much of the evidence of Ms Ryan. As Q-COMP noted, her evidence was largely inconsistent with the evidence given by other witnesses, including witnesses called by the Appellant. -- 1 of 16 -- 2 [7] Of the witnesses called by Q-COMP, I was particularly impressed by the evidence given by Mr Hill who gave his evidence in a clear and forthright manner. He was prepared to make concessions, where necessary, and like Mr Sargeant, was positive in his consideration of Mr Bailey. Although Mr Jamieson and Mr Morgan had less harmonious relationships with Mr Bailey, I generally found that their evidence was given in a straightforward way without advancing a position supportive of their interests. For these reasons, I have generally preferred the evidence of the Q-COMP witnesses. Outline of Events [8] In 2006 BlueScope opened a new factory at Coolum on the Sunshine Coast. In 2005 Mr Bailey applied for the position of, and was appointed as, the Operations Supervisor of the factory. This was a salaried position with no fixed hours of work. Mr Bailey was selected for the position of Operations Supervisor because he had experience in setting up new facilities and leading small teams. Mr Bailey said he was aware that the factory in Coolum was new and was to be brought into operation. Mr Bailey assisted in setting up the factory between January and May 2006 ready to commence production in June 2006. [9] During the set-up phase, factory staff were recruited and they, together with Mr Bailey, were sent to BlueScope's factory in Toowoomba for a period of six to eight weeks for on-the-job training. The purpose of the training was to have the staff from Coolum work with experienced operators to become familiar with the operation of the machines and to observe the systems in place. Although the factory in Toowoomba is larger than the Coolum factory many of the machines, product range and operating systems are the same. [10] Whereas Mr Illet and Mr Mitchell were satisfied with the training provided at Toowoomba, Mr Bailey was critical. He said he expected training in safety and computer skills. While acknowledging that the Operations Supervisor in Toowoomba had occupied the position for six to 12 months, Mr Bailey contended that the Operations Supervisor in Toowoomba had not been trained for the job. Mr Bailey's training for his position consisted of job shadowing the Operations Supervisor for the period he was in Toowoomba. [11] Some initial difficulties were experienced during the set-up phase and commencement of the Coolum factory. Mr Jamieson explained that there were some issues arising from the subdivision of land. Water was pumped into a rainwater tank on site. Although toilets functioned initially they had to be disconnected for a period which meant that port-a-loos were used. There is some disagreement over how long these problems lasted but it was at least a six week period. Power was delivered by means of a generator for two to three months. This affected production and periodically power had to be disconnected to allow other aspects of the operation to function. Mr Jamieson said that although the power interruptions imposed constraints on the business, it was not operating at full capacity at the time. The power issues were resolved in July or August 2006. [12] Problems were also experienced with one of the mills used in the factory, although this was rectified within a few months of commencing operations. Mr Bailey complained about inadequate access to outside maintenance contractors, the effect of which was that he was required to try to fix the problem. He does not have any mechanical qualifications. It was part of Mr Bailey's responsibilities to access contractors but he said they were difficult to locate. Mr Jamieson acknowledged that one particular mill had caused problems but that a period of bedding down was expected with any new operation. [13] Mr Bailey, supported by Mr Illet and Mr Mitchell, contended that when the factory commenced production, demand soon exceeded capacity. This was compounded by insufficient staff being employed to work the machines. Mr Bailey also said that persistent absenteeism impacted upon the ability to meet demand. Mr Illet regularly complained to Mr Jamieson about inadequate staffing numbers. Mr Bailey said he raised at least weekly with Mr Jamieson the need for additional staff. He was denied the capacity to hire casuals until early 2007. The effect of insufficient staffing was that Mr Bailey stepped into the breach by working on the factory floor to ensure that the production run was completed on time. [14] Mr Jamieson rejected the contention that demand soon exceeded capacity on a regular basis. He said that production levels were discussed and decided on with the start up crew, including Mr Bailey. Later, working with the experience from other sites, production crews were consulted about the maximum capacity for each machine each day. A whiteboard was set up in the factory showing the capacities and routinely during the day the capacity was updated so that all staff, including the office staff, knew what was happening. [15] He acknowledged that Mr Bailey became frustrated with absenteeism but said it was within the normal range. Mr Mitchell, in his evidence, was of a similar view. Mr Jamieson also said that whenever possible casuals were engaged although this could be problematic if only short notice was given. Moreover, he regularly discussed the production figures and capacity with Mr Bailey and for some time additional staffing was not warranted. A second shift was introduced in or about February/March 2007 in order to meet the demand and the market. Other companies were offering a 24 hour service and to be competitive more capacity was required. After the evening shift was introduced an additional employee was engaged for the day shift to increase capacity on that shift. The staffing for the evening shift rapidly went from two people to three plus the Transport Co-ordinator. -- 2 of 16 -- 3 [16] Mr Bailey claimed that absenteeism, insufficient factory staffing together with machinery breakdowns caused him an excessive workload and working hours. Added to this, orders were regularly received late in the day causing him to work excessive hours so that product could be delivered to customers on time. Mr Bailey said the cut-off time for orders was supposed to be 2.00 p.m. but orders were received as late as 5.00 p.m. for next day delivery. This was work to be performed by the evening shift. He said he worked on average 10-12 hours per day, often without a lunch break or smoko. On one occasion he worked 22 hours straight. Mr Bailey also said he was on call six days a week. [17] Mr Jamieson was not unaware of Mr Bailey's working hours and workload. He said that on start-up all staff were working extra hours to ensure the work was completed but this was not a requirement. He said that often Mr Bailey was able to leave work early on a Friday because work had been completed. As soon as he became aware of the 22 hour day Mr Jamieson thanked Mr Bailey for his efforts and sent Mr Bailey home to rest. However, he was of the opinion that an alternative solution should have been found as it was not an expectation of BlueScope that Mr Bailey would work such hours. [18] On the question of being on call, Mr Jamieson rejected that Mr Bailey was on call more than any one else. He may have been required on occasion to respond to a safety incident or similar event but it seemed that after hours calls were not a regular feature of Mr Bailey's work. [19] With respect to orders Mr Jamieson said that on start-up the factory was working on the basis of a 48 hour turnaround. On commencement of production, orders taken between 3.00 p.m. and 4.00 p.m. would go into the next day's production to be delivered the following day. With the introduction of the second shift, orders placed by 3.00 p.m. would be allocated to the evening shift for delivery the next day. He acknowledged that on occasion late orders were received for delivery the next day but this was not a regular occurrence. [20] Mr Jamieson considered the other issues of workload and hours were, in large part, of Mr Bailey's own making. Mr Bailey did not delegate and took much of the factory work upon himself rather than leaving it to the production crew. In Mr Bailey's performance review of August 2007 Mr Jamieson, while very favourably commenting on Mr Bailey's performance and safety performance, noted that: "The only aspect Wayne needs to work on is delegation as he has a tendency to 'jump in' rather than delegate". [21] A similar sentiment was expressed in the "Comments on goals/performance by supervisor/manager section" of the performance review document. Mr Jamieson said he had discussed this issue with Mr Bailey on a few occasions prior to the performance review. [22] In early to mid 2007 Mr Jamieson appointed Mr Illet as a Leading Hand in the factory. The purpose of this role was to take over from Mr Bailey the organisation of production and to allow him to spend more time in the office. Mr Jamieson also assumed responsibility for putting safety systems in place whereas Mr Bailey's role was to gather input from the factory floor and ensure the workers there were adhering to the safety systems. [23] The evidence of Mr Illet and Mr Bailey varies as to the length of time Mr Illet occupied the Leading Hand position. Mr Illet said he occupied the position until 2009 whereas Mr Bailey said he was only in it for approximately nine months. Mr Illet clearly occupied the position of Leading Hand in December 2007. [24] It is not contentious that in December 2007 Mrs Bailey rang Mr Jamieson to express concern over the state of her husband's emotional and physical health. Mrs Bailey had become concerned that her husband had changed from a happy, confident person to one who was moody, tired and uninterested in things. She asked Mr Jamieson to talk to Mr Bailey to see whether he could provide some assistance. [25] Mr Jamieson and Mr Bailey have different recollections of the conversation. Mr Bailey said he complained of being stressed and overworked and asked for an alternative role "to help him get some sanity back". He claimed Mr Jamieson told him that there was no-one else to do his job and offered him a telephone number for a helpline. Mr Bailey did not consider that the meeting offered him any relief from the excessive hours he claimed to be working or his stress. He denied raising any issues concerning his home life, especially in relation to his son. The Bailey's son, Brett, has an acquired brain injury and associated medical conditions, and lives at home with his parents. Brett had been employed casually in the factory for about six or eight months. Mr Bailey said he had enjoyed working with Brett. [26] From Mr Jamieson's perspective the issues raised by Mr Bailey focussed on his home and personal life, especially concerning his son. Mr Bailey mentioned that Brett's working in the factory was not giving him much respite. Mr Jamieson said that some measures were taken to alleviate their constant working together. However, Mr Jamieson also said that discussions occurred about Mr Bailey's role in the business, especially the need for him to step back from the factory floor to allow the factory staff to assume more responsibility. This -- 3 of 16 -- 4 conversation reinforced earlier discussions where the need for greater delegation had been raised. He denied that Mr Bailey had asked for an alternative role and that he had rejected that request. [27] One aspect of the meeting about which they agree is that Mr Jamieson offered Mr Bailey access to an employee assistance program. However, it does not appear that much information about the program was provided by Mr Jamieson. Mr Bailey did not think that the program would be of use to him in addressing the issues he believed to be of fundamental concern, that is, workload and inadequate staffing. [28] In Mr Bailey's view the meeting resolved nothing. He had been taking herbal medicine for his stress. He decided to continue with that to see whether he could continue at work until Christmas. On 3 March 2008, when in Mr Bailey's view, nothing had changed he consulted his doctor. At that point he decided not to go on medication but to treat his stress with a more potent dose of Vitamin B. However, his doctor gave him a medical certificate for one month's leave. Although Mr Bailey believed he handed the certificate to Mr Jamieson, it appears that Mr Jamieson was not at Coolum having been seconded elsewhere within BlueScope at that time. Mr Jamieson said he had no involvement with Mr Bailey taking leave. However, on his return to Coolum, Mr Jamieson became aware that Mr Bailey had taken leave. [29] Mr Jamieson telephoned Mr Bailey during this period of leave to enquire about his well-being. Mr Jamieson said that Mr Bailey only raised concerns about his home life. Mr Bailey did not have a clear recollection of the telephone call and believed that because he was not at work he would not have raised any work issues. [30] Mr Jamieson also said that he met with Mr Bailey over a casual lunch a week before he was to return to work. At that time Mr Jamieson floated the possibility of an alternative role in the business. Mr Bailey undertook to consider it but subsequently contacted him to advise that he wished to remain in his present position. Mr Bailey had no recollection of this lunch or the suggestion of an alternative role. Mr Bailey did not have a positive working relationship with his manager and said he had "deleted" Mr Jamieson out of his life. [31] Mr Sargeant was appointed as the Acting Branch Manager at Coolum on Mr Jamieson's departure and was in that position on Mr Bailey's return from leave. Mr Sargeant had previously interacted with Mr Bailey over a 20 year period and regarded him as a work colleague and a friend. [32] Mr Bailey said that on his return to work from leave, he was feeling quite relaxed. [33] During his period at Coolum, Mr Sargeant had a number of conversations with Mr Bailey about maintenance issues, safety system understanding as well as general day-to-day business issues. Discussions also occurred about Mr Bailey's role, especially relevant training to assist him in his position and strategies for balancing competing demands of the business in respect of customer demands and available resources. Mr Sargeant also worked with Ms Ryan to set up various data bases, which Mr Bailey had not been able to attend to because of the demands of the business. [34] Mr Sargeant did not have a handover to Mr Hill, the next Branch Manager to be appointed, but had a number of conversations with him about Mr Bailey's ongoing needs. After he had left Coolum, Mr Sargeant also spoke to Mr Bailey on a few occasions and was reassured that he was happy with the approach Mr Hill was taking. [35] Mr Hill initially believed the leave taken by Mr Bailey in March 2008 was annual leave and was only later informed that the leave was stress related. On being so advised by Ms Ryan he asked for the leave register to be checked and was advised that the leave had been recorded as annual leave. Although Mr Hill could not recall Mr Bailey telling him the leave had been because of stress, he was clear that Mr Jamieson, who had responsibility for the handover, had not advised him of this matter. [36] After he had returned to work, Mr Bailey mentioned to Mr Hill the pressure involved in setting up the operation and the rapid growth of the branch. By this time Mr Hill considered the factory was reasonably busy but not over-stretched and was satisfied that the systems and procedures in place were those of BlueScope. He had examined how the business was functioning and concluded that more focus needed to be placed on costs. He was of the view that Mr Bailey needed to step back from the factory floor and become more involved in safety management, administration and leadership of the factory team. Mr Illet’s appointment as the Leading Hand assisted Mr Bailey to achieve this focus. Mr Illet remained in that role for approximately six to eight months when for health reasons, he no longer wanted the responsibility. Paul Hastie was then appointed as Leading Hand. In addition, Ms Ryan was allocated responsibility for the safety policy and procedures. All of these changes were discussed with the staff concerned and their agreement given. Mr Hill said that Mr Bailey was comfortable with the new focus of the role and felt he was gaining ground on the goals set for him. [37] However, Mr Bailey said that even though his workload and hours had been reduced to about 45 per week he started going "backwards". Even the smaller things got him down. -- 4 of 16 -- 5 [38] Mr Hill acknowledged that Mr Bailey felt pressure at work especially in relation to the usual ebbs and flows of a business; the direction received from Archerfield operations and the impact of the downturn in the economy. Mr Hill said that although Mr Bailey told him that he had felt stress and pressure in getting the factory up and running at no stage did he mention feeling stressed under his (Hill's) leadership. [39] Under Mr Hill's management the two shift operation in the factory ceased and an increased spread of ordinary hours, from 6.00 a.m. to 6.00 p.m. was introduced. This change was made to improve productivity with fewer staff at a time when the demand for steel was dropping. Mr Bailey had worked with Mr Hill to implement the change to working hours. Some fluctuations occurred in Mr Bailey's starting and finishing times as they grappled with the extended hours but this settled to Mr Bailey working generally between 7.00 a.m. and 4.00 or 4.30 p.m. [40] The Global Financial Crisis (GFC) hit while Mr Hill was the Branch Manager at Coolum. The impact of this was that work reduced by a maximum of 30-40%. By this time the change to the spread of hours had been introduced. The effect of the GFC and the change to working arrangements meant that the diminishing workload shortened the lead time to deliver product and allowed BlueScope to become more competitive. [41] Mr Hill said that in the lead up to his departure Mr Bailey was anxious about who the next Branch Manager might be but did not show any signs of not coping with his role. [42] Mr Johnson took over as Acting Branch Manger at Coolum for a period of six to eight weeks after the departure of Mr Hill. He worked there three days per week. He said that on taking up the acting appointment the Coolum branch was operating at about 70% of budget. [43] On 20 May 2010 Mr Bailey advised Mr Johnson that his blood pressure was elevated and he was feeling under pressure because of work and family issues. Mr Bailey said in evidence that in the lead up to this day he could not deal with problems at work and was having difficulty recalling matters raised with him. During the conversation with Mr Johnson, Mr Bailey broke down in tears and immediately went to the doctor. Based on the medical records some discussion occurred that Mr Bailey would take one month's long service leave. On his return about an hour later Mr Bailey advised Mr Johnson that his blood pressure was raised and he had been diagnosed with depression. Mr Bailey advised that he had been placed on medication. The leave arrangements were finalised. Mr Johnson did not turn his mind to the option of sick leave or referral to the Employee Assistance Service. [44] In Mr Bailey's absence Mr Hastie acted as Operations Supervisor. On Mr Bailey's return and to facilitate his return to work Mr Johnson met with both Mr Bailey and Mr Hastie to discuss their roles. Mr Johnson proposed that Mr Hastie assume about 50% of the Operations Supervisor role. Mr Bailey was given responsibility for transport scheduling and ensuring the training of operators met required competency standards. He was initially resistant to the proposal believing that it may affect his title, position and salary. On being assured that none of these were to be affected Mr Bailey accepted the changes. [45] Mr Johnson remained at Coolum for about three weeks after Mr Baileys' return from leave. [46] Mr Morgan assumed the position of Branch Manager on 23 June 2010. During a three day hand over, Mr Johnson informed him that Mr Bailey had not long returned from long service leave. Mr Morgan understood Mr Bailey had taken the leave because he was feeling stressed or unable to cope with his work. Mr Morgan was aware of Mr Johnson's proposal that Mr Bailey's role be split so as to remove pressure from him and said that when he commenced duty at Coolum the role splitting was in operation. He considered that by splitting the role, about 50% of Mr Bailey's original role had been assumed by Mr Hastie and Ms Ryan assumed a further 10% by taking on the administration of safety. [47] Mr Bailey approached Mr Morgan to complain that Mr Hastie was signing emails as the Operations Supervisor. Mr Morgan agreed this was inappropriate as Mr Hastie had only been appointed to that position in an acting capacity. He asked Mr Hastie to amend his title on the emails. Mr Hastie complied with that request. [48] As part of the change in roles, Mr Bailey had been allocated responsibility for transport scheduling. He said he had not been trained for the role. After about three weeks performing that work Mr Bailey was relieved of those duties. Mr Bailey said that he did not ask to be relieved but the job was taken from him. Mr Morgan disagreed with this saying that Mr Bailey had indicated he was not coping with the role. It was Mr Bailey's request that the role be removed and he was consulted about the removal of those duties. Mr Morgan said it was not in the interest of the business to keep moving people around for no good reason. [49] Mr Morgan agreed that transport scheduling was not easy but said there was no formal training for the position. Support was available from the incumbent of the position who was working reduced hours for family reasons and from the Archerfield branch. However, because Mr Bailey said he was not coping, Mr Morgan removed those duties from Mr Bailey. He was left with the balance of the Operations Supervisor position not being performed -- 5 of 16 -- 6 by Mr Hastie or Ms Ryan and was reallocated production scheduling. Mr Bailey remained on the Operations Supervisor salary. [50] On taking over the position of Branch Manager, Mr Morgan spoke to Mr Sargeant about Mr Bailey. He was advised that under good management Mr Bailey should be fine and able to cope. During the period from June to August Mr Morgan also spoke periodically to Mr Bailey about how he was coping. Mr Bailey said that initially he was coping and then it became too much for him. Mr Morgan subsequently became aware of the situation with Mr Bailey's son. [51] In late August during a discussion with Mr Morgan, Mr Bailey said that he did not wish to continue with the Operations Supervisor role. After discussing that, Mr Morgan asked Mr Bailey what he wanted to do, including whether he wanted to work in the factory. Some discussion occurred around Mr Hastie being appointed as the Operations Supervisor and Mr Bailey becoming the Leading Hand in the factory. [52] The matter was not progressed until 14 September 2010 when, following a communications meeting where all staff were addressed by the State Manager, David Fea, Mr Bailey met with Mr Morgan and Mr Fea. As a result of the discussion Mr Fea raised the prospect of Mr Bailey taking on a safety role not only at Coolum but for the whole of the state. Mr Bailey was enthusiastic about this and understood a position had been offered to him. That night he told his wife and mother of the offer. Mr Morgan was firm in his evidence that no offer had been made, only a suggestion and that Mr Fea had made clear that he needed to return to Brisbane to examine the viability of such a position being created. According to Mr Morgan, the position was not ultimately created because it could not be justified in the organisation. [53] A further meeting was held to discuss Mr Bailey's situation on 22 September 2010. It is contentious whether sometime prior to this meeting Mr Bailey had been informed of the decision to not create the safety position. Mr Bailey said that he was told of the outcome at this meeting whereas Mr Morgan believed he had told Mr Bailey of the decision beforehand. In any event not much turns on this difference in recollections. [54] Mr Bailey and Mr Morgan had been discussing future roles for Mr Bailey in light of his desire to stand down from the Operations Supervisor position. During that conversation Mr Bailey said the work he could do in the factory was restricted because he had shoulder problems. At that point Nathan Warne, the Operations Manager for Queensland, who was visiting the factory that day, was brought into the meeting by Mr Morgan because of the health and safety implications of Mr Bailey's physical restrictions. [Mr Warne did not give evidence as he is no longer employed by BlueScope and could not be located despite repeated attempts by Q-COMP. The Appellant did not ask the Queensland Industrial Relations Commission (the Commission) to draw any adverse inference in accordance with the authority in Jones v Dunkel.1] [55] During the meeting the possibility of Mr Bailey taking up a Leading Hand role in the factory was canvassed. This role did not require the Leading Hand to physically operate the mills. Mr Morgan told Mr Bailey that if he took up the position he would have to take a pay cut of $5000 per annum because they could not afford to pay two Operations Supervisors. Mr Bailey did not think it was fair that he would have to suffer a pay reduction. He continued in the modified Operations Supervisor role. [56] Because Mr Bailey raised concerns about his shoulders he was referred for a medical examination which took place at short notice on 18 October 2010. The medical advice was that no overhead movements were to be performed and a range of duties that he could do was specified. On receipt of the medical report Mr Bailey continued in the modified Operations Supervisor position. [57] On or about 11 November 2010 a discussion occurred between Mr Bailey and Mr Morgan about Mr Bailey's continuation in the Operations Supervisor position. Mr Morgan advised Mr Bailey that if he wanted to step down from that position he would need that confirmed in writing so that the position could be advertised. Mr Bailey understood that he was not being dismissed from the business. [58] As a result of those discussions, on 12 November 2010, Mr Bailey sent notice of his resignation from his position of Operations Supervisor via email to Mr Morgan and a blind copy to the Chief Executive Officer (CEO) of BlueScope. Mr Bailey could not provide a reason for copying the CEO into the email other than he was not thinking rationally at the time. [59] As a result of the resignation and the restrictions placed upon the factory work that Mr Bailey could perform because of his shoulder limitations, a meeting was held on 29 November 2010. Mr Bailey did not receive any notice of the meeting or its purpose. He was called into a meeting where Mr Morgan, Mr Warne and Jasper Bos, the Human Resources Partner for Queensland, were present. Mr Morgan said that the purpose of the meeting was to find out what Mr Bailey wanted to do and how he could be accommodated. 1 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. -- 6 of 16 -- 7 [60] Mr Bailey and Mr Morgan have different views about the discussions that occurred at the meeting. Mr Bailey said that the meeting commenced with Mr Morgan and Mr Bos expressing anger at the email he had copied to the CEO and asking why he had sent it. He said Mr Bos commented that "if you send a letter like that to the CEO there's no coming back from that" and that there had been repercussions through the company as a result of the letter. In his view the gist of the meeting was that management wanted him to resign from BlueScope because he could not work in the office any more due to stress and he could not work in the factory because of the duty of care owed by BlueScope with respect to his shoulder condition. [61] Mr Bailey conceded that during the meeting, which he said lasted for about 40 minutes to one hour, he said he did not wish to return to the Operations Supervisor role as it was too stressful. He agreed he was asked what he wanted to do. Despite this, and acknowledging that positions in other branches were canvassed, Mr Bailey said that the purpose of the meeting was to indicate that no positions were available and the only alternative was that he should resign. He was told to go home and discuss the matter with his wife and this would give them time to organise the paperwork. Mr Bailey said he felt totally shattered at the conclusion of the meeting. [62] Mr Morgan said that he was not angry about the email but disappointed with Mr Bailey's actions. He had misrepresented a comment that Mr Morgan had made and it had been included in the email sent to the CEO. The meeting was not for disciplinary purposes but to discuss a future role for Mr Bailey. [63] During the meeting various options were discussed. At one point Mr Bailey asked if he could return to the Operations Supervisor position, however, he was informed that that position was no longer available because of the effects of that position on his health and his resignation. Mr Bailey said that he wanted to work but was unable to articulate a particular role or duties. After the discussion had continued for about 45 minutes and exhausted work options, Mr Bos raised the possibility of Mr Bailey ceasing employment and receiving a severance benefit. Mr Bos did not have any authority to make an offer and did not arrive with prepared calculations. He needed to return to Brisbane to develop a proposal. [Mr Bos did not give evidence as he is no longer employed by BlueScope and could not be located despite repeated attempts by Q-COMP. The Appellant did not ask the Commission to draw any adverse inference in accordance with the authority in Jones v Dunkel.2] [64] Mr Morgan said Mr Bailey told him that he needed to discuss the termination option with various people and took approved time off to do so. On 2 December 2010 he returned to the factory and provided Mr Morgan with a Workers' Compensation medical certificate. Various documents were completed and Mr Bailey left the factory. He has not returned to work but remains in the employ of BlueScope. Agreed Matters [65] The Appellant and Q-COMP agree, and the Commission accepts, that Mr Bailey was a worker within the meaning of s. 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). [66] The Appellant and Q-COMP agree, and the Commission accepts, that Mr Bailey sustained a personal injury within the meaning of s. 32(1) of the Act. The opinion of Dr Eshuys, expressed in her amended report of 27 July 2011, is that Mr Bailey suffered a psychiatric condition. She characterised that condition as Chronic Adjustment Disorder with mixed Anxiety and Depression. Issues for Determination [67] The following issues arise for determination in this appeal: (a) whether Mr Bailey's psychiatric injury arose out of, or in the course of, his employment with BlueScope at Coolum; (b) whether Mr Bailey's employment was a significant contributing factor to that psychiatric condition; and (c) whether Mr Bailey's application for compensation is excluded by the operation of s. 32(5) of the Act. [68] Q-COMP has put in issue the question of whether Mr Bailey's injury satisfies the employment related elements of s. 32(1) of the Act by contending that Mr Bailey did not provide an accurate history to either his General Practitioner, Dr Stobbs, or to Dr Eshuys. Relying on the authorities of R v Turner3 and Pollock v Wellington,4 Q-COMP submitted that as neither doctor had been provided with complete and accurate histories, their opinions were not of great value and the Commission could conclude that Mr Bailey's injury did not arise out of, or in the course of, his employment or, alternatively, his employment was not a significant contributing factor. For this reason it is necessary to refer to their evidence, particularly that given in cross-examination. Dr Eshuys 2 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 3 R v Turner [1975] QB 834. 4 Pollock v Wellington (1996) 15 WAR 1. -- 7 of 16 -- 8 [69] Dr Eshuys determined that Mr Bailey sustained a psychiatric condition subsequent to ongoing workplace stress. She identified Mr Bailey's stressors as overwork; the factory work and the belief that management was not entirely addressing or reacting to his concerns. Dr Eshuys was only provided with a history from Mr Bailey and did not have access to his medical records or any information from the employer in making her assessment. [70] It is clear from the cross-examination of Dr Eshuys by Q-COMP that she was unaware of various changes made to positions of employees in the Coolum factory designed to lighten Mr Bailey's workload. For example, Dr Eshuys was unaware of the length of time Mr Illet worked as a Leading Hand and that Ms Ryan and Mr Hastie assumed responsibility for portions of Mr Bailey's duties. Without the employer's version of the meeting of 29 November 2010, Dr Eshuys' understanding of that event was flavoured by Mr Bailey's description. [71] Dr Eshuys was also not advised by Mr Bailey about some family issues which had been occurring or the extent of Mr Bailey's other medical conditions. [72] In the circumstances where an incomplete or inaccurate history had been given, Q-COMP submitted that the weight which could be given to Dr Eshuys' opinion about causation was questionable. Dr Stobbs [73] Mr Bailey's medical records from the Noosa Clinic were tendered in evidence. [74] According to Mr Bailey's evidence he was feeling stressed throughout 2007 and was taking herbal medicine to cope. In his evidence he said he had reported feeling stressed by work to his then treating GP, Dr Somers, throughout 2007. The medical records do not bear out that assertion. The first mention of stress, which appears in the medical notes of Dr Stobbs, is on 17 March 2008. Neither the medical certificate issued by Dr Stobbs that day nor the earlier one issued by him on 6 March 2008 refers to stress or workplace stress. They simply refer to Mr Bailey receiving medical treatment for a specified period and being unfit to continue in his usual occupation for that period. Although Dr Stobbs said in evidence that he believed Mr Bailey had referred to the stress being work related in 2008, he conceded that his memory may be faulty and he may have been confused with the 2010 consultation. [75] In the circumstances Q-COMP submitted that the evidence of Dr Stobbs in relation to this period should be put aside. [76] Q-COMP then focussed on 11 May 2010 where the medical records of Dr Barnes, from the same practice, note work related stress. This is reinforced by the note of Dr Stobbs taken on 20 May 2010. Dr Stobbs was of the opinion that the considerable stress in Mr Bailey's life "crescendoed" in May 2010. From this, Q-COMP considered that this was the point of decompensation. [77] As Q-COMP submitted there was nothing happening at the workplace at that time that was impacting on Mr Bailey. He had been relieved of various aspects of his role and was working reduced hours. The GFC was affecting the number of orders and production demand had reduced accordingly. The only change was that Mr Hill had ceased being Branch Manager and a permanent replacement was awaited. [78] Q-COMP submitted that the evidence established that Mr Bailey was dealing with a number of health issues during the period leading up to his taking leave in 2008. He was diagnosed with Type 2 diabetes and sleep apnoea, the latter condition impacting on his sleep. In addition, over the period of his employment at Coolum Mr Bailey was dealing with non-work related stressors. His son had violent emotional outbursts (primarily directed to Mrs Bailey). Q-COMP said that despite Mr Bailey giving evidence that matters concerning his son were not impacting at work, this was at odds with evidence given by Messrs Jamieson, Hill, Johnson and Morgan, who all attested to Mr Bailey raising such issues. Another non-work related stressor occurred in 2009 and involved the acrimonious break up of Mr Bailey's daughter's marriage. [79] Q-COMP submitted that, after analysing all of the evidence, it was more than open to the Commission to find that the injury had not arisen out of, or in the course of, employment or that the employment was not a significant contributing factor. However, Q-COMP also conceded that there is evidence upon which findings could be made. [80] Before expressing a conclusion about whether the employment related elements of s. 32(1) of the Act have been met, the case advanced by the Appellant needs to be considered. [81] The Appellant contended that the events of 2006-2008 were the primary cause of Mr Bailey's psychiatric injury. In fact, he suffered a psychiatric injury over a period of time between 2006 and March 2008 when he took his first period of leave because of stress. The injury was compounded by the events of late 2010, in particular, the meeting of 29 November 2010. The Appellant submitted that the evidence of Dr Eshuys supported this conclusion. -- 8 of 16 -- 9 [82] The Appellant also argued that the injury is not withdrawn from the operation of s. 32(1) of the Act by the operation of s. 32(5)(a), i.e., the reasonable management action exclusion. Three groups of matters were raised by the Appellant as not being reasonable management action taken in a reasonable way, viz.,: (i) the set-up of the Coolum factory and its period of operation 2006-2008; (ii) failure to take appropriate action after being placed on notice of Mr Bailey's susceptibility to psychiatric injury; and (iii) failing to act reasonably during the meeting of 29 November 2010. [83] In relation to item (i) the Appellant referred to:  the disorganisation of the set-up especially the interruptions to services;  inadequate systems of work including absence of risk assessments; and  absence of staff counselling. [84] Q-COMP took issue with the set-up of the Coolum factory, and in particular, the disorganisation and inadequate systems of work, being relied on as being causative of the injury and also included under the heading of unreasonable management actions. Q-COMP submitted that these factors were not included in the list of stressors identified in the Application for Compensation dated 7 December 2010. In that Application Mr Bailey claimed that his injury occurred because of "stress at work related to workload, long hours and responsibility". [85] In the form "Psychological and psychiatric injury - Claim information summary for workers" Mr Bailey nominated the following factors as being the most significant in contributing to his injury: "1. Work Load & Responsibilities; 2. Hours of Work; and 3. Being unable to Relax or Sleep". [86] Mr Bailey attached a six page document to that form but did not identify the Coolum factory set-up or inadequate systems of work as contributing factors to his injury. [87] Q-COMP said that Dr Eshuys had identified the stressors as being overwork, factory work and the belief that management were not entirely addressing or reacting to Mr Bailey's concerns. Dr Stobbs said that the factors giving rise to the injury were that Mr Bailey felt undervalued as a long term employee; appropriate recognition, including financial recognition, was not given to the level of his responsibility and his work environment was unsupportive of the issues he raised. Q-COMP said that Mr Bailey had four opportunities to identify the relevant factors and in none of them had he identified issues relevant to the start-up of the factory. On that basis the Commission should disregard those matters and focus on those matters identified to the insurer and the medical practitioners. [88] The Commission accepts that in these proceedings, for the first time, Mr Bailey complained about the disorganisation of the Coolum factory set-up, the lack of training for his position and an absence of systems and procedures in the workplace on set-up. They were also not identified in the claim forms submitted to WorkCover nor were they identified by Dr Stobbs or Dr Eshuys as factors giving rise to Mr Bailey's condition. Q-COMP was not initially prepared to meet a case that included these factors but an opportunity was available for Mr O'Neill, Counsel appearing for Q-COMP, to take instructions, to cross-examine the Appellant's witnesses and to lead evidence from Q-COMP witnesses on these matters. Like Q-COMP, the Commission has reservations about the propriety of dealing with these factors when they had not been previously identified in any of the documentation submitted to the insurer or to the medical practitioners. However, the Commission notes that the Psychological and psychiatric injury - Claim information summary for workers form completed by Mr Bailey discloses that the he first reported the injury to Mr Jamieson on 2007 and first sought treatment in relation to the injury on 17 March 2008. In light of this information and the Appellant's contention that the events of 2006-2008 were causative of the injury, they will be addressed. [89] There is no doubt that during the set-up phase of the factory that difficulties with services were experienced. These difficulties arose as a result of issues with the subdivision of land on which the factory was situated. The Commission accepts that they would have been frustrating and inconvenient for those who were on site. However, the evidence is that the difficulties with services lasted approximately six to eight weeks, with the issue concerning the power to the site taking slightly longer to resolve. Mr Jamieson acknowledged the interruption to production caused by the power issues. Although it would not be common for the type of problems which arose at Coolum to occur many, if not all, appeared to arise after staff were deployed on the site. In fact some of the matters complained of appear to have been beyond management's control. It is also noted that other means of providing water and electricity were made available. However, the Commission accepts Mr Bailey's evidence that because workers complained to him about the problems he felt burdened by them. -- 9 of 16 -- 10 [90] The Commission also accepts that there were problems with one of the pieces of machinery and maintenance was difficult to access. However, these issues appeared to be of relatively short duration and not uncommon on start- up of a new operation. [91] The Commission has difficulty with Mr Bailey's contention that he was not trained for the role of Operations Supervisor. Certainly he did not undertake formal training such as a TAFE or university course. Mr Bailey applied for the position having had experience as a leading hand, a supervisor of staff and experience in the set-up of a greenfield site. There was always going to be much for Mr Bailey to learn about the new position and BlueScope gave him the opportunity to job shadow the Operations Supervisor in Toowoomba for a period of six to eight weeks before being required to step in to an operating factory in Coolum. The evidence is that the factory at Coolum was almost a carbon copy of the one in Toowoomba with respect to machinery (albeit Toowoomba was larger), policies and procedures. [92] It is the case that Mr Sargeant considered that Mr Bailey could benefit from further training and identified an external program dealing with essential leadership training for supervisors as being relevant. Clearly, this training was not Operations Supervisor position specific yet as I understood Mr Bailey's evidence, his complaint was that he had not been trained for this position. Leadership training may have assisted Mr Bailey develop much needed leadership and delegation skills but it would not assist him with other required position specific skills and duties. The Commission accepts that the training canvassed by Mr Sargeant did not come to fruition but the evidence does not show whether Mr Bailey himself pursued access to this training with other managers, especially Mr Hill, who had taken over from Mr Sargeant and with whom he had a good working relationship. Given Mr Bailey was provided with on-the-job training for a period of six to eight weeks in a similar position, the Commission cannot accept as justified his complaint about the lack of training for the Operations Supervisor position. [93] With respect to Mr Bailey's complaint that the systems of work were not adequately set up at Coolum, it is clear that there were some delays in having all systems of work put in place. However, the evidence of Mr Jamieson was that the systems and procedures that were introduced into Coolum were the same as those operating at other factories. Mr Jamieson took on some of Mr Bailey's responsibilities with respect to safety in 2007 when it became clear that Mr Bailey was not dealing with this aspect of his duties. Mr Sargeant found there were some deficiencies in systems when he was briefly in the Acting Branch Manager position and worked with Mr Bailey and Ms Ryan to have those established. When Mr Hill assumed the Branch Manager's position in April 2008 he was satisfied the systems and procedures that were in place were those of BlueScope. That did not mean that nothing more needed to be done as evidenced by his allocating Ms Ryan responsibility for safety policies and procedures. Some bedding down period with a new factory would inevitably be required. In the circumstances I am not satisfied that it has been established that the systems of work were not adequately set-up at Coolum. [94] The events of 2006 to 2008 also encompass issues of workload and hours of work. The Commission accepts that initially Mr Bailey worked long hours. The work responsibilities were demanding because of the start-up nature of the factory. Reference to problems with one of the machines has already been made. Mr Bailey also complained about excessive demand for production. Production demand versus production capacity was a vexed issue in these proceedings. On the one hand Mr Bailey, Mr Illet and Mr Mitchell all referred to struggle to meet production demands given the capacity of the factory, the fact that late orders were accepted by sales staff and the number of staff employed on the factory floor. Against that, Mr Jamieson said that production capacity had been struck in concert with the factory staff. For a considerable period he could not justify increasing staff because the factory was not operating at capacity. When it did Mr Jamieson introduced a second shift with a concomitant increase in staff. [95] Mr Hill was satisfied that when he assumed the position that the factory was reasonably busy and not over-stretched. [96] The Commission is satisfied that difficulties were encountered with orders being placed late in the day for next day delivery. However, the Commission is also satisfied that these difficulties were substantially overcome with the introduction of the second shift in early 2007. Based on the evidence of Mr Jamieson about the setting of production targets, the Commission is not satisfied that, outside of the difficulties with ordering, production demand regularly exceeded capacity. [97] The Commission cannot also be satisfied that absenteeism contributed, in any ongoing way, to the workload or working hours of Mr Bailey. Although there were periodic absences, the Commission accepts the evidence of Mr Jamieson, supported by Mr Mitchell, that absenteeism was within the normal range. Mr Bailey referred to certain staff having long term absences but this is not supported by other witnesses. The Commission accepts that when employees gave short notice of their absence it was difficult to find a replacement and this may have meant an extra load for Mr Bailey. However, the evidence does not support a conclusion that this was an ongoing problem or one that contributed to his injury. -- 10 of 16 -- 11 [98] Mr Jamieson, Mr Sargeant and Mr Hill were cognisant of the hours spent by Mr Bailey in respect of production. This was in part required when the factory started up production. However, it is also clear from the evidence given by various managers of the Sunshine Coast branch that a key reason that Mr Bailey was struggling with workloads and hours of work was that he was too closely involved with the factory floor. He did not delegate responsibility or tasks. Mr Jamieson identified this as an area requiring improvement in the 2005/06 performance review where he encouraged Mr Bailey to delegate more. It was a view also held by subsequent managers, including Mr Hill. [99] Mr Jamieson did not just advise Mr Bailey to take a step back but attempted to facilitate this outcome by the appointment of Mr Illet as Leading Hand in early to mid 2007. This appointment did not result in Mr Bailey changing his work habits and spending less time on the factory floor. The other staff and Mrs Bailey were concerned about the impact of the hours worked by Mr Bailey on his health. [100] The Commission is satisfied that the meeting in December 2007, prompted by Mrs Bailey's telephone call to Mr Jamieson, canvassed Mr Bailey's feelings of overwork. Consistent with the 2005/06 performance review, Mr Jamieson again suggested that Mr Bailey step back from a hands on role in the factory. [101] With respect to the Employee Assistance Scheme the Appellant seems to suggest that Mr Jamieson did not offer Mr Bailey access to it because it was not then in existence. In this regard reliance was placed on the evidence of Ms Ryan that she was allocated responsibility for implementing the scheme some time in 2008. For this reason, the Appellant contends that Mr Jamieson was unable to fully explain to Mr Bailey the purpose and nature of the scheme. [102] I am satisfied that Mr Jamieson referred to a scheme whereby employees could receive confidential counselling albeit he provided no more than cursory reference to it. I have reached that conclusion in light of the evidence given by Mr Jamieson and also by Mr Bailey. In his evidence-in-chief Mr Bailey said Mr Jamieson referred to a help line for work assistance. The scheme may have been different to that implemented by Ms Ryan, including having a different name, but nonetheless it was still a scheme which provided confidential counselling to employees. In addition, for reasons given under the heading of "Credibility" the Commission is unable to accept much of the evidence of Ms Ryan. [103] It seems clear that Mr Jamieson did not explain that the scheme could address work related issues, including workload. The Appellant suggests that had Mr Jamieson provided a more fulsome explanation then Mr Bailey may have taken advantage of the scheme. On this point I note the opinion of Dr Eshuys that because of the nature of Mr Bailey's condition, he is unlikely to seek help from a clinician. Although I accept that opinion is given with respect to Mr Bailey's condition as at the time of the assessment, it is likely that even had the scheme been explained in greater detail in December 2007, he would not have sought to access it. It was his evidence that unless his workload was reduced or more staff were employed then the scheme would be of little assistance to him. No counselling service was going to deliver those types of outcomes. Mr Bailey's view about the benefit of counselling given his problems in the workplace is consistent with the evidence of Dr Eshuys who said that the adjustment order does not really resolve until the stressors themselves resolve. [104] Mr Bailey took leave in March 2008 because of stress. It is the events from 2006 until this point that the Appellant contends was causative of the psychiatric condition. The Commission is prepared to accept that Mr Bailey's coping mechanisms were impacted in 2006 and 2007. His was a busy position with many demands made upon his time especially on start-up of the factory. Inevitably, there would have been pressure in setting up a new business and within a short period it had grown significantly. Mr Bailey had taken a lot on himself with the result that he worked long hours, was committed to the timely production and delivery of product to the exclusion of some of his other, equally important duties. He also had to deal with complaints from the employees on the factory floor especially concerning matters relating to production. Mr Bailey felt that Mr Jamieson was not supportive of his concerns about production demands and staffing levels. It is clear that Mr Bailey had little regard for Mr Jamieson's management of the factory. [105] However, the work situation as it has been found to have existed from mid-late 2007 to March 2008 does not give a clear indication of the reason that Mr Bailey was not coping and required leave to deal with what he said was workplace stress. The interruptions to services and machinery breakdowns were resolved in 2006. The issues concerning production demand exceeding capacity, even if they existed to the extent alleged by Mr Bailey, were addressed by the introduction of the evening shift in or about March/April 2007. On Mr Bailey's own evidence he then had the ability to hire, and did hire casuals in the factory to alleviate absenteeism. A Leading Hand was appointed in the factory with the result that some of the workload was removed from Mr Bailey. Mr Jamieson had also taken on some of Mr Bailey's safety duties. As a consequence of all of these measures Mr Bailey's hours had reduced from about 60 per week to 45 hours per week. [106] The Commission is not prepared to find that the psychiatric injury occurred in March 2008. Although the Commission has acknowledged that Mr Bailey's coping mechanisms had been impacted by events in the workplace in 2006 and 2007, there is no medical evidence about a psychiatric injury having occurred in March -- 11 of 16 -- 12 2008. Although Dr Stobbs made a note of stress in the patient records of 17 March 2008 there is no diagnosis of a psychiatric condition. Dr Eshuys did not make a diagnosis of a psychiatric injury retrospective to that date. Other health issues were also present at that time. In short, the Appellant has failed to link the events of 2006 to 2008 to causation of the injury. [107] Having rejected the Appellant's argument that the primary cause of the psychiatric injury was the events of 2006-2008, the Commission must further consider whether later workplace events contributed to the injury in order to satisfy the elements of s. 32(1) of the Act that have been put in issue by Q-COMP. To this end it is necessary to firstly consider the events between March 2008 and May 2010. According to Dr Stobbs, May 2010 was the significant point of breakdown in Mr Bailey's life. Dr Stobbs said that Mr Bailey was unhappy going to work and work caused him stress and tension. Mr Bailey reported feeling unsupported and undervalued in the workplace. Dr Stobbs considered Mr Bailey was clinically depressed and prescribed medication. [108] Mr Sargeant, but primarily Mr Hill, were the Branch Managers for the bulk of that period now under consideration. Mr Johnson was the Acting Branch Manager for only part of April and May 2010. The Commission has previously noted that both Mr Sargeant and Mr Hill had mutually positive working relationships with Mr Bailey. There is nothing in the evidence of Mr Bailey which indicated that under their leadership issues in the workplace were causing him stress. In fact, Mr Hill took positive steps to assist Mr Bailey become more operationally focussed with a concomitant reduction in working hours. [109] When Mr Hill became the Branch Manager, Mr Illet continued as the Leading Hand in the factory. About six to eight months later Mr Hill brought on Mr Hastie to understudy Mr Illet's Leading Hand role. This was designed to give Mr Hastie more experience and to develop him to eventually assume aspects of the Operations Supervisor role as well as to relieve Mr Illet of the position who did not want the responsibility for health reasons. The evidence of Mr Hill was that Mr Bailey was supportive of these changes and it was his proposal to develop Mr Hastie. Ms Ryan was also given responsibility for safety, continuing the changes initially implemented by Mr Jamieson and Mr Sargeant. Even on Mr Bailey's evidence these changes positively impacted on his working hours. His assessment varied but it was somewhere between 38 and 45 hours per week. [110] Mr Johnson had only been in the position for about two weeks before Mr Bailey became ill in May 2010. In his evidence Mr Bailey could not point to any event or action by Mr Johnson or indeed any other workplace event at or about that time that caused his stress to crescendo. [111] Mr Hill referred to Mr Bailey feeling pressure at work but said that he was coping. Mr Bailey said he was going backwards but could not point to any particular concerns or issues in the workplace during the relevant period. Dr Stobbs gave evidence that Mr Bailey felt undervalued and unsupported in the workplace at this time, however, there is no evidence to support this view. Quite the contrary. Mr Bailey described Mr Hill as "a bloke you could rely on" and someone who helped him out "a lot". As Q-COMP noted, the issue around this time was the departure of Mr Hill and his replacement. Mr Bailey gave evidence that managers were able to move on while he was left at Coolum "all the time to cope with it". However, the Commission is unable to make a definitive finding that this was the cause of the stress in May 2010 in the absence of any evidence, especially medical evidence. [112] The Appellant argued that the injury (which I have determined did not occur in 2008) was compounded by the events of late 2010. Dr Eshuys' report adopts the date of decompensation determined by the Q-COMP Review Officer of 2 December 2010, being the date Dr Stobbs certified Mr Bailey as being totally incapacitated for work. Dr Eshuys' report states that Mr Bailey's symptoms had been developing over time and the acute precipitants for his decompensation were the offer of a state-wide safety position that was later withdrawn and the meeting of 29 November 2010. [113] The Commission does not accept that an offer of a new position was made on 14 September 2010; rather, it was a proposal. This is confirmed by Mr Bailey's evidence-in-chief where he said that the matter was left on the basis that it would be further examined. In cross-examination Mr Bailey said he understood an offer to have been made. The Commission accepts that Mr Bailey had been excited by the prospect of a new role, perhaps seeing it as his chance to move on. The Commission also accepts that Mr Bailey was disappointed that the job did not come to fruition. However, none of this changes the fact that a firm offer of a new safety position was not made. [114] Mr Bailey gave evidence that he was "shattered" by the meeting of 29 November 2010 and attended on Dr Stobbs a few days later. He did not return to work. Dr Stobbs said that by this time Mr Bailey's condition had worsened. [115] The question remains then of whether the injury arose out of, or in the course of, employment and whether the employment was a significant contributing factor. The Appellant argued that these conditions were met because:  the evidence of Mr Illet and Mr Mitchell was that when Mr Bailey first commenced employment he was a very positive and happy person. This changed over time. Their evidence supports that given by Mr and Mrs Bailey on the point; -- 12 of 16 -- 13  the issues concerning Mr Bailey's son were not having the same impact as when he first acquired the condition in 2000. Evidence of this was given by both Mr and Mrs Bailey and confirmed by Dr Stobbs who said that the period of adjustment had been met well by the Baileys and they were coping with the change to their son;  Mr Bailey had been suffering from various physical illnesses (some of which were undiagnosed) for a lengthy period of time without impact on his mental health; and  it was Dr Eshuys' opinion that the workplace was the cause of the injury. [116] I have previously found that Mr Bailey's coping mechanisms had been diminished in the years between 2006 and 2008 because of the work demands primarily placed on him in 2006 and 2007. However, for reasons given earlier, I am not satisfied that an injury occurred in March 2008. Moreover, I consider that Mr Bailey's coping mechanisms had been somewhat restored after his period of leave in March 2008 as he gave evidence that he returned to work feeling relaxed. [117] If, as Dr Stobbs considered, the injury occurred in May 2010, then the evidence does not disclose that employment was a significant contributing factor to it at that time. Other non-work related factors have been identified as being present in the lead up to May 2010, including the acrimonious break up of Mr Bailey's daughter's marriage. If, the evidence of Dr Eshuys is accepted, that is, the injury developed over time and the events of late 2010 were the acute precipitants of the decompensation on 2 December 2010, then the elements of s. 32(1) of the Act would be met. [118] I have considered the evidence of both Dr Stobbs and Dr Eshuys about the date and causation of the injury. In respect of the date, I prefer the evidence of Dr Stobbs because he was Mr Bailey's treating General Practitioner for a reasonable period of time and, unlike Dr Eshuys, saw Mr Bailey contemporaneously with his diagnosis of clinical depression. Moreover, Dr Eshuys did not have a complete history of workplace events upon which to make an accurate assessment. [119] Given the lack of identifiable workplace stressors at the time the Commission cannot find that employment was a significant contributing factor to the psychiatric or psychological condition which occurred in May 2010. In the circumstances the Commission cannot be satisfied that the provisions of s. 32(1) of the Act have been met. In the event I am wrong about that, and in light of the arguments presented about management action, the Commission will consider the matters relating to s. 32(5) of the Act that were raised. Section 32(5)(a) Reasonable management action exclusion [120] Having so found the Commission needs to consider the matters raised under s. 32(5) of the Act. Some of these matters have already been discussed. In relation to those matters the Commission, and without repeating views previously expressed, makes the following findings:  the problems with services experienced on start-up were not unreasonable management actions taken in an unreasonable way. The problems were of relatively short duration and some were beyond the control of management;  the systems of work, while not perfect, were adequate on start-up of the Coolum factory;  the training provided to Mr Bailey was reasonable and provided in a reasonable way. On-the-job training is a reasonable way to deliver specific job skills;  it was reasonable management action taken in a reasonable way to appoint a Leading Hand to relieve some duties and responsibilities from Mr Bailey;  the failure of Mr Jamieson to provide a detailed explanation of the Employee Assistance Scheme cannot be characterised as anything more than a blemish;  the actions of Mr Jamieson in relation to staffing, setting production targets, introducing the evening shift, trying to focus Mr Bailey more on operational matters and reallocating work duties from him to others were reasonable management actions taken in a reasonable way; and  the steps taken by various managers to reallocate Mr Bailey's duties to others when he was not coping with the workload were reasonable management actions taken in a reasonable way and resulted in fewer working hours for Mr Bailey. Offer of position [121] The issue of the purported offer of a state-wide safety position was not specifically raised by the Appellant with respect to s. 32(5)(a) of the Act. However, for completeness, it will be addressed. [122] It must be remembered that at the time Mr Bailey had indicated to Mr Morgan that he did not wish to continue in the Operations Supervisor position. Mr Morgan brought Mr Fea into a discussion to try to determine a future position for Mr Bailey within BlueScope. It was in this context that a safety role was mooted. Despite the position not coming to pass, it cannot be argued that Mr Morgan acted unreasonably in his actions or that Mr Fea -- 13 of 16 -- 14 acted unreasonably in not being able to deliver on the position. It was only a proposal which needed the approval of others in BlueScope. After it did not eventuate, other positions were subsequently explored. All of these actions are indicative of a management endeavouring to assist a long term employee and can only be construed as reasonable management actions taken in a reasonable way. Meeting of 29 November 2010 [123] The Appellant argued that Mr Bailey had been ambushed at the meeting. He was confronted by three managers, angry at Mr Bailey's having sent his resignation email to the CEO. Further, the meeting was in the nature of a disciplinary meeting. At the conclusion of the meeting he was asked to go away and consider resigning. Relying on the decision of WorkCover Queensland v Kehl,5 ('Kehl'), the Appellant submitted that BlueScope knew, on at least two previous occasions, Mr Bailey had time off work because of work stress. Because of this, it was incumbent on BlueScope to take reasonable steps to ensure that the meeting was conducted appropriately for him. That included giving Mr Bailey proper notice of the meeting, including an agenda; giving him the opportunity to bring a support person and suspending it until Mr Bailey had a support person present. The Appellant submitted that in light of these omissions this meeting could not be seen as reasonable management action taken in a reasonable way. [124] Q-COMP submitted that it was reasonable for senior management at BlueScope to arrange a meeting with Mr Bailey to discuss potential alternative roles given that he had indicated he no longer wanted to undertake the Operations Supervisor position and his allegations that he was not physically capable of working on the factory floor. [125] The meeting of 29 November 2010 could not be characterised as a disciplinary meeting. It was reasonable management action that Mr Bailey be asked about his actions in sending the CEO a blind copy of his email. Q-COMP submitted that it was clear on the evidence that no disciplinary action was threatened in the meeting nor was there any disciplinary action subsequently taken against Mr Bailey. An explanation was sought and it was sound and reasonable that Mr Bailey explain his conduct. [126] Q-COMP further submitted that there was no need for BlueScope to take the steps nominated by the Appellant because the meeting was not for a disciplinary purpose, including seeking Mr Bailey's dismissal. Mr Bos had not come to the meeting with prepared figures and it was only after about three quarters of an hour of discussion that consideration turned to a severance package. This was a reasonable proposal by management given that options had been explored without resolution. All Mr Bailey could say was that he wanted to work, however, he did not want the Operations Supervisor position; could not work on the factory floor and was unwilling to relocate. [127] Q-COMP rejected the proposition that the decision in Kehl, ibid, was relevant. In its submission that authority is only relevant where a worker has previously decompensated in the workplace. In that case the employer is put on notice to take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision. [128] I have given earnest consideration to the question of whether it was reasonable management action taken in a reasonable way to conduct the meeting on 29 November 2010 without taking those steps outlined by the Appellant. In the email Mr Bailey referred to his ill health and the fact that he had twice taken leave because of stress. It is evident from the way that the email is written and its content that Mr Bailey was not coping and in all likelihood was not well when he wrote it. [129] Had the meeting been conducted in the manner proposed by the Appellant then Mr Bailey might have had a clearer recollection of the discussions that occurred and may not be fixed with the notion that the purpose of the meeting was to have him resign from BlueScope. However, after giving the matter considerable thought, I have concluded that the conduct of the meeting was not unreasonable management action taken in an unreasonable way. [130] The Commission does not accept that the purpose of the meeting of 29 November 2010 was to discipline Mr Bailey or to force his resignation. In my view the meeting was convened with firstly, the intention of seeking an explanation from Mr Bailey of his actions given that sending a copy of a resignation from a position (but not from BlueScope) to the CEO was an extraordinary step to take. Had the intention been to discipline Mr Bailey then it is likely that some action in that regard would have been taken or foreshadowed at the meeting. For example, were BlueScope to issue a warning then it could reasonably have been expected that this would have been mentioned during the meeting. Neither Mr Bailey nor Mr Morgan referred to any type of disciplinary action being canvassed. [131] The real agenda for the meeting, in my view, was to explore options to retain Mr Bailey in employment. It was not unreasonable for Mr Warne and Mr Bos to have been present for that discussion given their respective roles in 5 WorkCover Queensland v Kehl (2002) 170 QGIG 93. -- 14 of 16 -- 15 BlueScope. The Commission accepts that had Mr Bailey been forewarned that this discussion was to occur then he may have better turned his mind to suitable alternative roles. However, a discussion of this type should not have been unexpected given that Mr Bailey had resigned from his position and had limitations on the work he could perform in the factory. It was not reasonable to expect BlueScope to carry two employees on the Operations Supervisor salary when one could not perform all of its duties and responsibilities. In addition, Mr Bailey was aware that an alternative role in safety had previously been mooted but rejected by BlueScope as not being feasible. Mr Bailey would have had time to mull over his plight given his request to resign his position. If management had wanted to act unreasonably it simply could have treated a resignation from the Operations Supervisor position as a resignation from BlueScope. Instead, Mr Morgan and other managers were prepared to work with Mr Bailey to find a suitable alternative position. [132] The Commission accepts the evidence of Mr Morgan that about 45 minutes elapsed before the discussion turned to Mr Bailey's separation from BlueScope. I further accept that by that time all reasonable options had been exhausted. However, as previously stated I do not accept that the purpose of the meeting was to force Mr Bailey's resignation nor do I accept that he was asked for his resignation. Having considered the evidence I have concluded that the managers of BlueScope offered Mr Bailey the option of resignation if that is what he wanted. No preparation had been done for that outcome as evidenced by the need for Mr Bos to return to Brisbane to have calculations made, including determining what would be an appropriate ex gratia payment. The fact that the prospect of an ex gratia payment was discussed shows that BlueScope were not seeking to punish Mr Bailey. Mr Morgan allowed Mr Bailey to have time off work so that he could talk to relevant people to make an informed decision. In the result Mr Bailey remains an employee of BlueScope. [133] In all of the circumstances the Commission concludes that the meeting was reasonable management action taken in a reasonable way. Overall conclusions about s. 32(5)(a) [134] The Commission is satisfied that reasonable management action was taken in a reasonable way with respect to Mr Bailey. There were certainly problems with the set-up phase and on commencement of the factory, however, the Commission has not accepted that these difficulties were ongoing throughout 2007 and into 2008. The evidence supports the view that Mr Bailey was supported in his role by the appointment of Leading Hands and by the removal of other aspects of his role to Mr Jamieson and Ms Ryan. These changes were designed to ease the workload of Mr Bailey and to assist him become more focussed on management and leadership issues. Mr Bailey acknowledged these measures and that they reduced his hours of work. Moreover, these changes were made without any impact on Mr Bailey's salary. He also confessed that he did not know what else BlueScope could do to alleviate his situation. [135] In addition, when Mr Bailey indicated that he wished to stand down from the Operations Supervisor position, he was retained in employment. Steps were taken to try to find Mr Bailey alternative roles within BlueScope which met his needs and restricted physical movement. [136] The Commission accepts that the actions by BlueScope were not entirely without blemish. The meeting of 29 November 2010 could have been better handled, for example, giving notice of the meeting and allowing Mr Bailey to have a support person present would have been a more appropriate process especially in light of his evident diminished emotional capacity at the time. However, this was not a disciplinary meeting but a meeting to discuss a future role for Mr Bailey in the organisation given his resignation from the position of Operations Supervisor. [137] For all of the reasons given in this decision the Commission is satisfied that reasonable management action was taken in a reasonable way and accordingly, the claim is withdrawn from the operation of s. 32(1) of the Act. Section 32(5)(b) [138] An injury is excluded if s. 32(5)(b) applies, viz., the worker's expectation or perception of reasonable management action taken against the worker. Q-COMP submitted that s. 32(5)(b) was put in issue on the basis that Mr Bailey's perception from May 2010, and especially the meeting of 29 November 2010, management was intending to dismiss him or otherwise manoeuvre him out of a job with BlueScope. However, Q-COMP relied on the evidence of Mr Morgan to contend that neither of these outcomes was the objective of the meeting of 29 November 2010. The Commission must assess the reality of the management action and not Mr Bailey's perception of that action: Prizeman v Q-COMP.6 [139] The Appellant did not press any issues concerning Mr Bailey's expectation or perception of management action taken. 6 Prizeman v Q-COMP (2005) 180 QGIG 481. -- 15 of 16 -- 16 [140] In the previous section I expressed my views about the action taken by management after May 2010, especially with respect to the "offer" of the safety position and the meeting of 29 November 2010. For reasons I do not intend to repeat I reject Mr Bailey's perception of both of those events. However, discussion about an alternative role in safety cannot be characterised as management action taken against Mr Bailey and s. 32(5)(b) does not apply to this incident. That section is only relevant to the meeting of 29 November 2010 and operates to exclude the claim. Conclusion [141] The Commission finds that the elements of s. 32(1) of the Act have not been satisfied in that employment was not a significant contributing factor to the injury. [142] In the event that it is necessary, the Commission finds that s. 32(5) of the Act withdraws the claim from the operation of s. 32(1) of the Act. [143] The Appeal is dismissed and the decision of the Review Unit, Q-COMP is confirmed. [144] The Commission reserves all questions as to costs. [145] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2011 August 2, 8-10 November 3, 8 and 9 Released: 20 January 2012 Appearances: Mr T. Nielsen, Counsel instructed by Lynch and Associates. Mr P.B. O'Neill, Counsel instructed by Q-COMP. -- 16 of 16 --