Dorcy Pacific Pty Ltd v Q-COMP [2011] QIRC 4

CITATION: Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) DEPUTY PRESIDENT BLOOMFIELD 28 January 2011 DECISION Background [1] This decision concerns an appeal by Dorcy Pacific Pty Ltd (Dorcy Pacific) against a decision of the Review Unit, Q-COMP (Q-COMP), dated 1 February 2010, to uphold an appeal by Ms Antoinette Mears against a decision of WorkCover Queensland, given on 9 December 2009, to reject her application for workers' compensation dated 17 November 2009. In her original application Ms Mears described her injury as "psychological system in general, Anxiety/depression combined". Legislation [2] Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) relevantly provides: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances- (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.". Nature of the Appeal [3] The appeal to the Commission is by way of a hearing de novo. It is the Appellant, Dorcy Pacific, which bears the onus of the proof on the balance of probabilities (see State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne1; and Qantas Airways Limited v Q-COMP2). In the latter case, Commissioner Blades explained the onus or burden of proof where an employer is the Appellant, as follows: "… (an employer is required to) raise, by way of admissible evidence, those matters upon which it relies to escape liability. The worker is not a party to the proceedings so it is probably not right to say that the worker has any onus of proof but the factual situation must be found to exist as will bring the worker within the provisions of the Act. That factual situation must be on the balance of probabilities.". [4] In order to succeed in its appeal, Dorcy Pacific must establish at least one of the following points: • that at the relevant time Ms Mears was not a worker within the meaning of the Act (this point is conceded and is not argued); or • that at the relevant time Ms Mears did not sustain an injury; or • that if Ms Mears did sustain an injury then that injury either did not arise out of or in the course of her employment or was one to which the employment was not a significant contributing factor; or • that any injury alleged (being of a psychiatric or psychological nature) was one which arose out of reasonable management action taken in a reasonable way or, alternatively, occurred as a result of Ms Mears' expectation or perception of reasonable management action taken against her. 1 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne 172 QGIG 1447 2 Qantas Airways Limited v Q-COMP 181 QGIG 301 -- 1 of 19 -- 2 [5] Because the matter is a hearing de novo, not a review of Q-COMP's decision, it is necessary for Q-COMP to establish on the balance of probabilities that Ms Mears did suffer a personal injury that arose out of or in the course of her employment and that the employment was a significant contributing factor. The participants in the events [6] Ms Antoinette Mears - commenced work in October 2008 with Dorcy Pacific in the position of Office Co-ordinator. The role involved accounts receivable, answering telephones, dealing with customer concerns, processing delivery dockets, preparing invoices, acting as the personal assistant to Dorcy Pacific's Managing Director, Mr Peter Lucas, and performing clerical and administrative work for a related company, A H Knowles Pty Ltd (A H Knowles). [7] Mr Peter Lucas - the Managing Director of both A H Knowles and Dorcy Pacific. A H Knowles is a manufacturers' representative in the State of Queensland for a number of Australian-based manufacturing companies. Dorcy Pacific is an importer and wholesaler of a range of products, mainly lanterns and torches, manufactured in China. [8] Mrs Elizabeth Lucas - also a Director of A H Knowles and Dorcy Pacific and takes an active part in the day-to- day functioning of both those companies as Administration Manager. Mrs Lucas works three days a week (Monday, Wednesday and Friday). [9] Mr David Lucas - the son of Peter and Elizabeth Lucas who works for Dorcy Pacific as the State Account Manager. This was described as "a jack of all trades" role involving preparing overseas purchase orders, liaising with the Company's Hong Kong office, liaising with the National Sales Manager in Sydney and preparing invoices. [10] Mr Mark Kleinschmidt - the Automotive Sales Manager for A H Knowles and handles the relationships between A H Knowles and the firms it represents in Queensland, who manufacture and/or supply automotive products. [11] Ms Jane Dewar - employed on a part-time basis, for five hours a day, as an Administration Sales Consultant with A H Knowles, having commenced in August 2008. [12] Mr John Hardi - the Bunnings' Account Manager for A H Knowles. In this role he oversees four Account Managers and 14 Merchandisers who maintain standards in Bunnings' stores for the 13 companies A H Knowles represents as manufacturers' agent. Mr Hardi liaised with Ms Mears who recorded the reports of the field staff employed by A H Knowles and facilitated distribution of memos and the like to the Merchandisers and Account Managers. [13] Ms Tracey Banks - a Stores Person employed by Dorcy Pacific. [14] Ms Lauren Donhardt - employed as a Sales Assistant by A H Knowles. Conduct of the proceedings [15] As the Appellant in the proceedings, Dorcy Pacific led all of its lay witness evidence first. This involved all of the above persons, except Ms Mears, as well as two other persons, namely Mr Lance Nicoll, Warehouse Manager for A H Knowles and Mr Craig Adams, Principle of CA Investigations Pty Ltd. [16] However, the Appellant's evidence is best understood in the context of the Ms Mears' evidence, which was delivered immediately after the last witness for Dorcy Pacific. As such, I propose to record Ms Mears' evidence first in order to set out the various incidents Ms Mears alleges caused, or contributed to, the development of her psychiatric or psychological condition. I will then deal with the evidence of those witnesses called by Dorcy Pacific which relate to the same incidents outlined by Ms Mears. [17] Unfortunately, because of the nature of the case, it has been necessary to record a significant amount of the actual evidence given by individual witnesses. This is because the ultimate determination of the appeal depends very much upon witness credibility as well as my assessment of the overall evidence. The various incidents 1. The "rolling of the eyes" and the "Oh what …?" incidents [18] Ms Mears said there were times when she would knock on the door and go into Mr Lucas' office. He would look up and go "Oh what …?" and that would happen several times a week. Sometimes it would happen several times a day depending on his mood. On occasions he would also roll his eyes and/or sigh as he said "Oh what …?". -- 2 of 19 -- 3 Ms Mears said she tried not to bother Mr Lucas and would only go and see him if something needed to be clarified and she couldn't find an answer elsewhere. [19] Under cross-examination Mr Lucas said he had "no conscious feeling" that he might have rolled his eyes or sighed from time to time when speaking with Ms Mears. [20] He also said he would have used the words "Oh, what?" but not in the way Ms Mears alleged. "… I would probably say 'Oh, what?' anywhere, not in the office but anywhere. I suppose anyone can say 'Oh, what?', but to her, in that context, no.". [21] While Mr Lucas denied having said "Oh, what?" to Ms Mears on any occasion he, nonetheless, said that he may have stated those words to others. 2. The desk thumping incidents [22] Mr Lucas would allegedly thump Ms Mears' desk as he walked by. It caused Ms Mears to wonder whether she was supposed to be doing something for him or whether she hadn't performed a particular task. She asked him once whether she was meant to be doing something for him or had she forgotten to do something and he said "no, no, I just felt like thumping your desk.". [23] Mr Lucas categorically denied Ms Mears' allegations. He said he had never banged anyone's desk. It was not something he would do. 3. The minimum dollar value incident [24] Ms Mears said Dorcy Pacific had a number of contracts with customers where a minimum dollar value per order had been negotiated. On one occasion she was trying to ascertain the minimum dollar value for a particular customer but could not find any record to help her resolve the query. She found a handwritten entry of "$250" on the back of a nondescript piece of paper in the customer's folder and tried to get hold of David Lucas, without success, to clarify the minimum dollar value. [25] After several unsuccessful attempts to locate David Lucas she went to see Mr Lucas. When she went into his office she "got" the "oh what …?" and the rolling of the eyes from Mr Lucas, as well as an annoyed sigh. She told him she needed to get some clarification and he asked her whether she had looked in the file. When she told him she had but couldn't find anything in it he allegedly responded, with an annoyed tone, "well, just go and have another look.". After again looking in the file she went back to Mr Lucas and described the nondescript piece of paper she had discovered previously. He abruptly said "well, we are not going to do it for less than that.". (Transcript 3-72) [26] Ms Mears said she felt frustrated and annoyed at Mr Lucas' attitude in relation to what she saw as a reasonable request. When asked whether it was what was said or the way it was said that made her feel anything, Ms Mears responded "A bit stressed - yeah, just stressed, annoyed, frustrated, anxious. You know, I don't like to - I felt like in some way I had irritated him or annoyed him or been stupid and been, you know, dense by not knowing when contracts - they did vary and I wasn't to know and I felt it was better to clarify than to just guess.". (Transcript 3-72) [27] Mr Lucas had no specific recollection about any particular discussion with Ms Mears concerning minimum invoice values. He said, however, that he and Ms Mears had discussed minimum invoice values on a number of occasions because it fluctuated, depending on the customer. [28] Under cross-examination Mr Lucas said he had no recollection of the alleged conversation. However, he did concede that the words "… we're not going to do it for less than that" could be something he might have said because he wouldn't send out $100 worth of stock if it was going to cost $200 in freight. He also said it was "possible" he might have had a raised voice when he made the comment. 4. The coffee making incident [29] Mr Kleinschmidt came out from a meeting with two gentlemen from a potential new client and asked Ms Mears if she could come into the meeting in five to ten minutes to see if anyone wished to have tea or coffee. After about five minutes she knocked on the door and went in. "In front of the people sitting at the table (Mr Lucas) just turned to me and goes 'Oh what …?'. I said I'm just enquiring as to whether anyone requires any coffee or tea. (Mr Lucas) said 'no' back (at me) and then thought for a second and said 'oh, hang on a minute, does anyone want coffee?'. …". (Transcript 3-72) -- 3 of 19 -- 4 [30] When asked if the incident had any impact on her or made her feel any particular emotion Ms Mears said "I was a little bit embarrassed for the fact that there were others in the room. A little bit sort of shocked that I'd got that - a little bit upset that I'd got that - well, upset that I'd got that response.". (Transcript 3-75) [31] Mr Lucas remembered a meeting with Mr Kleinschmidt and two gentlemen from a potential new client but had no recollection about any incident concerning coffee. He agreed that people probably would have ordered coffee, because Ms Mears would have come in and asked the people in the room, but he had no idea what was actually said. [32] Under cross-examination Mr Lucas said he remembered the meeting very clearly but he didn't remember asking for coffee or talking about coffee. [33] Mr Kleinschmidt recalled the meeting mentioned by Ms Mears because it was a rare occurrence to hold meetings with a Principal in Mr Lucas' office, let alone two people from the same company. He also recalled that the meeting was held somewhere around 13 October 2009. [34] Mr Kleinschmidt said that after introducing the Principals to Mr Lucas he went outside and asked Ms Mears if she could come in to the room in a couple of minutes to ask the gentlemen whether they wanted a coffee. After several minutes Ms Mears tapped on the glass and was asked to come in by Mr Lucas. Ms Mears asked everyone if they would like coffee at the same time that Mr Lucas did and everyone had a bit of a giggle about it because it was rather a jovial atmosphere. After taking orders from those who wanted refreshments, Ms Mears left the meeting and returned a few minutes later with the refreshments. She was thanked for her services. [35] Under cross-examination Mr Kleinschmidt said he had a clear recollection of Mr Lucas thanking Ms Mears and believed the other gentlemen would have too, but couldn't recall. He also recalled Mr Lucas asking Ms Mears to "Come in" with a wave of his hand when she knocked on the door. In addition, he reiterated that Mr Lucas and Ms Mears spoke at the same time when they asked if anyone wanted a coffee. 5. The FedEx Incident [36] Ms Mears said she had received permission to re-arrange the contents of a number of filing cabinets to make it easier to access those files she needed on day-to-day basis. Not long after the files were rearranged, Mr Lucas told her he had been looking for a particular document in a FedEx file and couldn’t find it. He then asked her where the FedEx files were now kept. She responded along the lines that she wasn't sure, as she didn't use them, and explained they had been moved from one drawer to another drawer. Mr Lucas said "Well, they used to be in there. Where are they?". She responded by saying she had simply moved the files from one drawer to another drawer and it was a straight transfer of contents. He abruptly said "Well, why is it I don't believe you then?". Some further words about the location of the files were exchanged after which Mr Lucas said "Find them.". [37] A little while later Mr Lucas came out and asked her if she had found the files. At that point David Lucas went to his filing cabinet and found them saying "Oh, they're here.". Ms Mears said she said something to Mr Lucas trying to make light of the incident but "He put his hand up in (a stop position*) about that far (25 - 30 centimetres*) away from my face and just went, 'Uh, uh, uh, uh.'. And I said sort of said, 'Oh, really, I didn't.'. And he (went) 'uh'. Any time I went to say something at all, I got that response from him. It really upset me because I hadn't done anything wrong and felt like I'd really been put in the position of - that I was at fault in some way from this action and just that - yeah, what had I done wrong in this situation to have deserved that behaviour when I really hadn't done anything. I felt it was really unjust the way that that had been dealt with at my desk and in my face.". (Transcript 3-76) (* Ms Mears held up her hand to show a stopping motion and then held her hand approximately 25 - 30 centimetres from her face.) [38] Under cross-examination Ms Mears said she could not remember which month the incident occurred but thought it was within three or four months of her leaving Dorcy Pacific, probably three. It was certainly after May 2009. [39] Mr Lucas had no recollection of any event involving missing or misplaced FedEx files, saying that the company only used FedEx about once a month. [40] Under cross-examination Mr Lucas strongly refuted the allegations made by Ms Mears stating that the incident never happened. [41] Mr David Lucas said he had no recollection of the incident complained of by Ms Mears. If a FedEx delivery docket was being filled out the paperwork might be on his desk or Ms Mears' desk, as they were the only two people who had anything to do with dispatching stock. The only occasion his father might want to look at a FedEx file was if he was wishing to check whether stock might have been sent. If a consignment docket wasn't being filled out the FedEx documents would be kept in a filing cabinet. -- 4 of 19 -- 5 6. The product numbers incident [42] Ms Mears said there were two products with similar codes, D4248 and D4284, which were frequently confused. On one occasion, she had prepared some invoices for a major client and taken them down to Mr Lucas who was helping out in the warehouse. A little while later Mr Lucas came up and dumped some papers on her desk saying, as he stabbed his fingers on the paperwork, "This is wrong, you need to fix this … bring it back down …". (Transcript 3-76) She looked at the paperwork but couldn't see where she had made a mistake. [43] She went down and asked Mr Lucas whether they were talking about the correct product because one came in a box of three items and the other came in a box of six items. He allegedly said "I've told you what it is. Now just go and change it.". After changing the product codes Ms Mears took the paperwork back downstairs but checked the box Mr Lucas had pulled out. She noticed it was the incorrect box and mentioned this to him. He responded "Well, I don't care. We'll just send it off to them.". After Ms Mears told Mr Lucas she would need to ring the customer and alert them to the change, because they would just reject it and return it, he instructed her to go back and change the invoices to the way they were originally. [44] When asked to describe Mr Lucas' manner during the above conversations, Ms Mears responded by saying "Very abrupt, very gruff, aggressive with the tone and also the instruction, the pointing of the - of, like, pointing back up to the office would be very like, (a) 'Just get out of here' point.". (Transcript 3-77) When asked whether the incident had any adverse impact on her and if so, how it made her feel, Ms Mears said "It was becoming an accumulative affect on me as to just the feeling of doubting myself, doubting my abilities, why am I getting, you know, why is he talking to me like this? Does he - is it just that he doesn't like me or am I actually doing a good job? It just became very much questioning myself as to - to my ability and my knowledge, and I'd never had that before.". (Transcript 3-77) [45] Mr Lucas recalled an incident involving the two products, although he couldn't remember the exact detail. Nonetheless he stated "I may have been wrong in that error". (Transcript 2-38) [46] Under cross-examination Mr Lucas appeared to partially resile from the evidence given immediately above. In doing so he said that there were several product ranges that had similar code numbers and it was easy to mix them up. While he had no direct memory of the incident he said "… if she said it happened, it may have happened. As I've agreed, I may have got it wrong.". Although stating several times that he had no recollection of the incident he thought that he "could have" said to Ms Mears that the box sizes were wrong, there should be six and not three, and that he would have said something like "Fix it now and bring it straight back down" because of the urgency of getting the orders out. (Transcript 2-52 to 53) [47] However, Mr Lucas categorically rejected that he would have stabbed his fingers on the paperwork as Ms Mears alleged, saying that was not how he behaved. 7. The kitchen incident [48] Ms Mears said she worked in the same building with Ms Dewar but there wasn't too much of a friendship between them. She helped Ms Dewar do some of her work but beyond that she tried not to have too much to do with her. She found Ms Dewar hard to talk to and to deal with and said she could sometimes be abrasive. About three to four weeks before she finished employment, on 13 November 2009, she complained to Peter Lucas about several issues related to Ms Dewar and her own workload. [49] Some time later Ms Mears was in the kitchen, which measured approximately three metres by five metres with a single doorway. (Ms Dewar thought it was two metres by two metres. I am content to accept it was somewhere between the two estimates.) Ms Dewar came up to the doorway, put her hands on her hips and said "I hear you have a problem with me.". Ms Mears said she was somewhat taken aback because she thought it was not the type of conversation that would normally be had in that sort of setting where she was totally unaware of "what was to come at her". [50] Ms Mears responded by saying she did have a problem, which involved "what she was taking on", and they discussed the matter further. Ms Mears said she didn't want to get into the subject matter too much with Ms Dewar, she just wanted to settle the situation down. Ms Mears said that the incident had an adverse impact on her in that she was quite shaken, quite taken aback and upset that she had been approached in this way. [51] Mr Lucas said he became aware of some issues between Ms Mears and Ms Dewar as a result of speaking to them individually. Ms Dewar felt that Ms Mears wasn't pulling her weight but Ms Mears felt she was. After he got them together to talk about it and to tell them that they had to sort it out and work together, Ms Dewar told him she was going to have a chat to Ms Mears while she was in the coffee room. Mr Lucas said the coffee room was directly in front of his office and he could see both women in there. After they spoke to each other he felt that the situation between them improved. -- 5 of 19 -- 6 [52] Under cross-examination Mr Lucas said that about 15 - 30 minutes after he spoke to the two women together in his office Ms Dewar came to ask him whether he would mind if she went and spoke to Ms Mears. He responded by saying words to the effect "If it can fix it up, yes, please.". [53] Ms Dewar said she worked at a desk some three to four metres from Ms Mears' desk and at times their relationship was strained. Ms Dewar said that she and Ms Mears were of similar age and had children of similar ages and opined that both she and Ms Mears were reasonably head-strong women. She also said she felt, at times, that Ms Mears wanted to be her supervisor rather than her work colleague and she didn't like that situation when it happened. [54] Ms Dewar recalled having a conversation with Mr Lucas about her relationship with Ms Mears but couldn't recall any conversation where Ms Mears was also present. In that conversation she asked Mr Lucas if she could approach Ms Mears to try and resolve the situation. [55] The following extract from the transcript records Ms Dewar's evidence on the point. "SAPSFORD: … you approached her? --- Oh yes, I did. And where was that? --- It was in the kitchen upstairs and Toni was at the sink and I came in one doorway and spoke to her at the sink and then she was drying up, so I moved around her to the other side so she could put things away. Yes, and did you speak to her? --- Yeah, the whole time while we were in there and said, 'You know, look, I'm sorry that things have got this way. Peter tells me that you find it difficult to work with me, I find it difficult to work with you, as I feel that you talk down to me and that you don't treat me like your equal.' Yes? --- She said that she found me aggressive and I said, 'Look, I'm sorry that things got this far.' Yes, and was that it, was there any resolution reached of any ---? --- Well, I apologised for my behaviour and I thought that was it. She didn't apologise to me, she just nodded and went, 'Hmm, okay.' And so I just left it at that. Well, how were things after that? --- Things after that seemed to pretty much resolve themselves. I didn't - we didn't seem to have ongoing conflict with her at all. Bearing in mind that Ms Mears left Dorcy Pacific in November of 2009, can you say how long before that this conversation took place? --- It was about August (2009).". (Transcript 2-81) [56] Under cross-examination Ms Dewar accepted that rather than the discussion with Ms Mears occurring in August it might have been October. (Transcript 2-90) Ms Dewar also said she had not attended any meeting involving Ms Mears, Mr Lucas and herself. [57] Ms Dewar said she had approached Ms Mears in the kitchen within five minutes of Mr Lucas having spoken to her about her and Ms Mears' relationship. She agreed that she'd started the conversation by saying words to the effect "I've just been in with Peter and I hear you have a problem with me". She also said that her tone might have been assertive. 8. Mr Lucas' behaviour [58] Ms Mears said that Mr Lucas presented as a fairly nice, friendly, family man when she first started employment. However, she started noticing changes a few months into her employment, but more particularly around June/July 2009. He seemed to be happy and joking one minute and extremely agitated the next. He seemed to have a bit of a volatile personality. He was having a lot of mood swings and behaved erratically. [59] Under cross-examination it was put to Mr Lucas that in the four to five months leading up to November 2009 his demeanour towards Ms Mears changed from what it had been previously and that from time to time he became angry quite quickly. In response, Mr Lucas said "I'd use the word 'frustrated' at the constant mistakes. I would not say angry … because we tried to talk to her, tried to help her, David spent time with her and it was - it was frustrating.". (Transcript 2-58) [60] When asked to explain what his demeanour was like when he was frustrated Mr Lucas said he was "firm" with Ms Mears, telling her "This is wrong and it's got to be fixed.". He accepted his tone of voice was raised more than normal. (Transcript 2-58 to 59) -- 6 of 19 -- 7 [61] Mr Lucas accepted that when he was feeling frustrated his manner of speech, his body language and his whole demeanour would be different from what it was when he was cool, calm and peaceful. He also agreed that his change in behaviour towards Ms Mears was instigated by mistakes she had made in her work saying he explained things to her many times, as did his son David and his wife, although he didn't hear them doing it. (Transcript 2-59) 9. The events of 13 November 2009 (the "primary allegation") [62] Ms Mears said she had spoken to Mr Lucas on 12 November 2009 about her plans to prepare delivery dockets to send out some orders to a major client which had been held up for a few weeks waiting for delivery of several products which had been out of stock. A container was due on Friday 13 November 2009 and she had contacted the transport company to find out the latest time they could collect deliveries from Dorcy Pacific to get them to the required locations by the dates the customer had requested. She also confirmed to Mr Lucas she had discussed the matter with Ms Banks, who had approved her plans. [63] On the morning of 13 November Ms Mears was on the telephone to Mr Hardi when Mr Lucas came upstairs and "very heavily" walked over to her desk. She described what happened then in the following words: "He basically just put his hand on my desk and leaned forward and said - I'm a bit blurry on exact words now, but it was along the lines of, 'This paperwork was supposed to be' - you know, 'Why isn't the bloody paperwork downstairs?' Or - it was very - it was very in my face, very loud, very aggressive tone. The look on the face was anger --- … His eyes were scowled, his lips were pursed, he was red in the face. It was just - it was an angry face. … And in a very loud voice said, you know, 'Where the hell' or something along those lines, 'This paperwork is supposed to have been downstairs. Where the hell is it? Get it down there now.'". (Transcript 3-80) [64] Ms Mears said she was very shaken, upset and embarrassed because when she turned around Ms Donhardt and Ms Dewar were just sitting there staring at her. She got on with the job of preparing the paperwork as quickly as possible and took it downstairs. She was upset and on the verge of tears and went back to her desk and tried to compose herself by doing some tasks Mr Hardi had given her. [65] A short time later she went to see Mrs Lucas. After composing herself, she had started crying, she told Mrs Lucas that the way Mr Lucas had just spoken to her was completely unreasonable. She said Mrs Lucas "arced up" and asked her what she had done wrong. She responded by telling Mrs Lucas that if she had done something wrong she would admit it but what had happened was a misunderstanding and Mr Lucas' reaction was totally unacceptable. He had been loud in front of the other staff and his behaviour was unreasonable. Mrs Lucas responded with words to the effect "Look, I realise he has a volatile personality. I'm surprised he does keep it under control as well as he does. He is a lot better than he used to be with it.". (Transcript 3-82) [66] Mrs Lucas suggested to Ms Mears that she take a couple of minutes to compose herself and offered to go and talk to her husband about the issue. Ms Mears agreed with this request but suggested that Mrs Lucas wait until her husband had finished unpacking the container before she went to talk to him. [67] Several hours later Mr Lucas again came to her desk with a look of "controlled anger" on his face with some of the documents she had taken downstairs earlier, saying "Why is this wrong? What did you do? … Why have you put these through? You should have known that they were still out of stock. … Fix this. Get it down.". (Transcript 3-81) Ms Mears corrected the mistake she had made and took the paperwork straight back downstairs. [68] Later in the afternoon Mr Lucas called Ms Mears into the office and said "So, explain to me what today was about?". She responded by saying that it was a misunderstanding in that she thought the delivery dockets were to be prepared as soon as the incoming stock was entered into the computer. Mr Lucas responded by indicating that he accepted it was a misunderstanding between the two of them and that he would be clearer next time as to what he thought the procedure should be. [69] Under cross-examination Ms Mears rejected the proposition that she had suggested, the previous day, that she would produce delivery dockets, which would leave a negative stock balance in the computer, in anticipation of receipt of those goods in the container on the following day. She said that while putting stock into a negative position had happened before it was not discussed on this occasion and that had led to the misunderstanding between Mr Lucas and herself. [70] Ms Mears also rejected the proposition that she misunderstood the interchange with Mr Lucas on the morning of 13 November 2009 saying she didn't see how she could have misunderstood it when he was leaning over her -- 7 of 19 -- 8 desk and she had seen the expression on his face, the tone of his voice and his demeanour towards to her. She knew when somebody was angry at her and "almost overbearing with me.". (Transcript 3-108) [71] Ms Mears also rejected the suggestion that the idea to put the stock into a negative situation was hers. She said she had spoken to Ms Banks about how long it might take her to put the order together once the container arrived and was unpacked. She had also spoken to the transport company and Ms Banks believed she could put the orders together, after the container was unpacked, for collection by approximately 2-2.30 p.m. (Transcript 3-109 to 111) [72] Mr Lucas said Dorcy Pacific's performance was judged by its major customers on the basis of delivery in full on time (DIFOT) and if the company did not meet its customers' expectations it could be penalised. On each order there was a date for delivery and Dorcy Pacific was expected to deliver to the store in question in the week immediately following that date. If the date was Monday the 16th, Dorcy Pacific had to deliver the stock by the end of that same week. The company was built on one motto, giving customer service, and every order it received went out as soon as it could. [73] Mr Lucas said Ms Mears came to him on 12 November 2009 with "an initiative" of putting stock in a negative situation to allow pre-picking of the bulk of an order, with the balance of the order to be completed once the container arrived the following day. [74] As he was unpacking the container on the following day Mr Lucas asked Ms Banks if she had the orders (delivery dockets) so he could add the items they had been waiting for to the other orders. Ms Banks replied by saying that she hadn't received the delivery dockets yet, as a result of which Mr Lucas thought to himself "we're in a pickle now …". He went up to see Ms Mears and said "I don't know why these aren't done. Would you get them down to the warehouse as quickly as you can?". [75] Mr Lucas said he was happy to admit that he was very frustrated by what had happened because it had put a huge impost on the rest of the staff. He also said he was cross and annoyed but did not yell at Ms Mears. He had to take Ms Banks out of the container and put her on to picking the orders that should have been picked the day before. He also asked Mr Kleinschmidt, who changed into clothes he had in his car, to help unload the container. That resulted in him being off the road for half a day. (Transcript 2-35) [76] When the delivery dockets arrived downstairs Ms Banks pointed out a mistake which had been made because of a transpositional error in a particular item number. Mr Lucas said he went back upstairs and "actually very calmly and quietly" asked Ms Mears "where on the manifest that I gave you was that part number that you've invoiced out?". When she told him it wasn't there he said "No, it's not, you've invoiced the wrong part out. Can you re-do the invoices and get them down to Tracey.". (Transcript 2-36) [77] Later that afternoon he called Ms Mears into his office. He said to her "Where did we go wrong here? You came to me with the idea to do it and then it all fell apart. It cost Tracey time, it cost Mark time; it cost the company time and it was unacceptable.". Ms Mears responded by saying she didn't understand what he wanted her to do. Mr Lucas said he found this comment very hard to understand on the basis she brought the idea of going into negative stock to him and she had done it in the past. (Transcript 2-36) [78] Under cross-examination, Mr Lucas refused to accept that Ms Mears' failure to produce delivery dockets by going into a negative stock situation might have been as a result of a misunderstanding "because we've done it in the past using that system.". [79] Mr Lucas also said that he was very calm in the way that he approached Ms Mears when he went to see her about the transposed product numbers because his wife had told him Ms Mears had been upset before, saying "understanding she was upset, I tried to be more calmer than anyone would be.". He also agreed that his voice would have been raised, but not in a nasty way, during his first conversation with Ms Mears. "I would've been firm and stern but I would not have raised it in a loud, abrupt or any other manner.". He also said he was a bit angry, but more frustrated than anything, because another mistake had been made that cost a lot of time for the company. (Transcript 2-67) [80] In relation to the afternoon conversation with Ms Mears, Mr Lucas said he spoke calmly saying something like "Toni, what went wrong? … We had this organised, it was going to happen, what went wrong? … Even Tracey was expecting them downstairs. So just why wasn't it done?". He thought he also said "I'm disappointed in you but let's move on.". (Transcript 2-69) [81] Mr Hardi was on the telephone to Ms Mears during the morning of 13 November 2009 when he heard Mr Lucas walking up to Ms Mears and saying, to the best of his recollections, "Have you invoiced these items to go out?" and Ms Mears response was "No, I haven't invoiced them because Tracey has not booked the stock in.". Mr Lucas then replied "We can raise the invoices at any time and as soon as Tracey books the stock in, the stock can -- 8 of 19 -- 9 then be released. We do not have to have the stock booked in before an invoice is raised. Can you do that, and do that now, please?". Ms Mears then excused herself from the telephone call saying she had to do this task for Mr Lucas and she would call him later. (Transcript 3-15) [82] When asked if Mr Lucas was loud or had used a raised voice or anything of that nature, Mr Hardi replied "No. I wouldn't say loud or yelling. I would say that he was correct in what he needed to say to her, but it was probably no different to our conversation now.". (Transcript 3-15) [83] Under cross-examination Mr Hardi agreed he had not made any record of the conversation he had overheard. He also said he could not remember what he and Ms Mears might have been talking about when Mr Lucas interrupted them but had remembered the conversation between Mr Lucas and Ms Mears because when she had rung him back later in the day she mentioned it was inappropriate for Mr Lucas to have spoken to her that way without knowing who was on the telephone at the time. He also remembered the conversation he had overheard because he had been asked about it several times subsequently, including over the phone by an Officer from WorkCover. [84] Mr Hardi rejected any suggestion that Mr Lucas had spoke to Ms Mears in a raised voice or that he might have sounded frustrated. When questioned further, Mr Hardi said that what he heard was Mr Lucas come up to Ms Mears with a specific question and a specific task and just asked for it to be done. In doing so, Mr Lucas was "short, sharp and direct.". (Transcript 3-20) [85] Ms Dewar recalled Mr Lucas having a conversation with Ms Mears on 13 November 2009. Ms Mears was on the telephone and Mr Lucas appeared anxious for her to finish. Ms Dewar said she didn't hear the conversation but it sounded like Mr Lucas was upset. [86] Some time later she saw Ms Mears speaking with Mrs Lucas. A little while later she noticed that Ms Mears appeared to be upset and asked her whether she was okay. Ms Mears didn't engage her in conversation but looked at her, put her arms up and said "I'm gone. I'm done.". Ms Mears was not crying and she did not notice any tears in her eyes. [87] Under cross-examination Ms Dewar agreed she had prepared a statement on 3 December 2009 in which she recorded her recollections of the events of 13 November 2009. In that statement she recorded that Mr Lucas seemed agitated while he was waiting for Ms Mears to get off the telephone. She also agreed that she had written "from (Mr Lucas') body language, he was not happy about something … he spoke in what to me was an angry but controlled voice.". [88] Ms Dewar also agreed that she had written in the 3 December statement that when she walked past Ms Mears desk later in the morning Ms Mears was upset and had tears in her eyes. When asked to explain why her oral evidence about this matter was different to what she had recorded in her written statement, Ms Dewar said she had written down things in December that she recalled at that date but had no recollection now of Ms Mears having tears in her eyes. [89] Ms Donhardt indicated that she had only commenced working for A H Knowles several months prior to the events of 13 November 2009. She recalled having seen Mr Lucas come upstairs and approach Ms Mears. He asked her, in a stern voice, about some invoices he had asked her to do the day before. [90] When asked to describe the tenor of Mr Lucas' voice Ms Donhardt said "He was obviously frustrated. I mean he wasn't - you could tell maybe - he was, like, using a stern - it wasn't, like, an angry loud voice; but it was just raised a little.". (Transcript 2-93) [91] Under cross-examination Ms Donhardt was asked what it was about Mr Lucas that made her think he was frustrated but not angry. She responded by saying "you could see it in his face.". She also said that while she hadn't seen Mr Lucas when he was angry she had seen him on other occasions when he had been frustrated, when he adopted a particular look. (Transcript 2-94) [92] While continuing to assert she had never seen Mr Lucas get angry, Ms Donhardt did tell Mr Lippett, who appeared for Q-COMP, "I think when Mr Lucas is angry, his brow gets a little indented ….". However, when Mr Lippett attempted to raise the inconsistency in her evidence compared to what she had said previously, Ms Donhardt said she didn't recall having mentioned what Mr Lucas looked like when he was angry because she had never seen him angry. When it was suggested that she had said "when he gets angry he gets indentations in his brow" she said she could not recall having given that evidence but meant to say "frustrated". (Transcript 2-95) [93] Mrs Lucas said she had her own desk in her own office which was about five metres from Ms Mears' desk. She recalled her husband walking briskly to Ms Mears' desk on the morning of 13 November 2009, speaking to her -- 9 of 19 -- 10 and then leaving. He also came up on a second occasion. Mrs Lucas didn't hear the content of either conversation. [94] Some time after her husband's second* visit Ms Mears came to see her. She was crying and very upset. She said something like "I've had enough.". ( *This appears to be an error on Mrs Lucas’ part. All the other evidence points to it being after her husband’s first visit.) [95] The only thing Mrs Lucas could recall about the conversation was that she said something along the lines "well, I don't know how Peter controls himself at times with what goes on around here.". She said she didn't know what Ms Mears had said to make her say that but she did recall saying something along those lines. [96] Mrs Lucas also said the conversation with Ms Mears was quite short because she was very focused on going downstairs to find out what had happened. She went downstairs and spoke to her husband and Mr Kleinschmidt in the container. She also spoke to Ms Banks to find out what she had to say about matters and then went back upstairs to her office. She recalled making sure that Ms Mears was okay. [97] Despite indicating on several occasions that she did not hear what her husband said to Ms Mears on either his first or second visit to Ms Mears' desk, Mrs Lucas said she heard her husband, while sitting at her desk, invite Ms Mears into his office during the course of the afternoon. [98] Ms Banks said she was expecting paperwork to be delivered to her on Thursday 12 November 2009 so that she could pre-pack orders in anticipation of a container coming in the following day. When the container came in she was to finish filling the orders with those items from the container which she needed. [99] On the morning of Friday 13 November Mr Lucas asked her where the delivery dockets were and she told him she hadn't received them. He had a stern look on his face and went upstairs. [100] Ms Banks also said that Mr Lucas took her off the job of unloading the container and asked her to go inside and wait for the orders. He then took someone else from the floor to help him unload the container. [101] Under cross-examination Ms Banks said that Mr Lucas told her to expect the paperwork on the afternoon of 12 November so that she could have the orders ready for the Friday. She vaguely remembered talking to Ms Mears about how long it would take for her to do the orders on the Thursday and responded by saying it wouldn't take her long at all. Other evidence 1. "Extra-curricular activities" [102] Ms Mears said her de facto partner had commenced a general freight business in the electrical industry in around January 2009 and that she was (technically) a partner in the business. In that role she had set up the administration system, using Excel, to help monitor the consignment notes so that invoices could be sent out at the end of each month. [103] She said it took approximately two months to figure out the finer points of the system and to get it working properly. The system was relatively simple and allowed her to produce invoices and reports at the end of the month by copying and pasting other entries. Overall there were six to eight clients, each with a number of branches. Ms Mears said she spent approximately an hour a week inputting data and then about a day at the end of each month copying and pasting entries onto an invoice and printing them out. [104] Under cross-examination Ms Mears said her partner's business made approximately 21 - 28 deliveries per day. Each delivery was then recorded on a spreadsheet and became part of an invoice at the end of the month by copying and pasting. After some "tweaking" the system would have been "over and done with by March". [105] In light of the above evidence Ms Mears was asked to explain the contents of an email sent to her mother on Friday 1 May 2009, which was in the following terms: "Not sure if this email reflects the stress I am feeling today. The business has taken off. We have nearly as much in one week as we did the first month and we have to place an add for more owner drivers next week. Which means we may have to approach the bank for a loan as the money from the customers for this month is 2 months from payment with invoicing at the end of the month and then 30 days to pay. But if we don't get the extra drivers we can't supply the good service we have been due to the work load. Means I have more work and basically 2 jobs. 2 nd one being done at time (ok most of the time in the 1 st ones time) but when things get busier here again I won't have the time so I will not have time for anything at home but work. So looking at getting a housekeeper in a few hours a week. Hopefully a Friday so my weekend is less stressful. -- 10 of 19 -- 11 Drew's comment to someone yesterday was "We have created a monster" The guys reply was "and you have to feed a monster" I agree to that. This monster grows every time we feed it though. I'm not complaining as this is mine and Drews retirement fund but at the moment the growing pains are very painful.". [106] In response to the question posed, Ms Mears indicated that, to a degree, the email had been taken out of context. The reference to "monster" was her partner's stress in that he was trying to deal with employees, where he wasn't coping. She was doing the paperwork and there was still "some tweaking happening". In addition, she was a mother with a teenager having to do housework and trying to achieve everything that you do as a working mother. [107] Ms Mears also rejected a proposition to the effect that Mr Lucas had told her she wasn't permitted to do any other (private) work in her spare time with Dorcy Pacific saying he had told her he didn't care what she did as long as all of the work was done. [108] Ms Mears was also taken to a video recording of a reasonably lengthy conversation she had with a private detective (Mr Adams) who was pretending to be interested in a delivery van Ms Mears and her partner had for sale. [109] After playing the video, Mr Sapsford, who appeared for Dorcy Pacific, invited Ms Mears inter alia (see more below), to explain the different estimates about the time that she was spending in her partner's business as provided to the Commission compared to what she had said to the private detective. Ms Mears answered by saying that she had been busy during the initial setup period, when she was working every night and every weekend, but now it was an hour a week and a day at the end of each month. (Transcript 3-106 to 107) 2. Ms Mears' application for workers' compensation [110] In the course of her cross-examination, Ms Mears was taken to her initial Application for Workers' Compensation (Exhibit 1) and Claim Information Summary for Employers, Psychological and Psychiatric Injury (Exhibit 2). The Application showed that her injury happened at 12am (sic) on 13 November 2009. It also recorded that her injury did not happen over a period of time. The accompanying Claim Information Summary identified the "nominated factor" (leading to the injury) as follows: "On Friday 13 Nov 2009 at roughly 9:30am was yelled at by boss and owner of the company Peter Lucas in front office in regard to an ordering misunderstanding.". [111] In response, Ms Mears disputed the accuracy of the information contained in the two documents, saying that what had been recorded was the interpretation of the WorkCover Officer she had spoken to during a 30-40 minute telephone conversation. During this conversation she told the Officer that while Mr Lucas had "basically yelled" at her she couldn't say that he actually yelled, it was more like he was loud, angry and aggressive. "Yell" was not what she had said. [112] Ms Mears also said that the WorkCover Officer kept trying to pin her down to a particular date although she told them it was a "building thing" and it was a case of the straw that broke the camel's back. She told the Officer "if you need to pin it down to a date, then I would say the 13th .". Ms Mears also disputed that the injury did not happen over time. She said she told the WorkCover Officer that she felt that events had gone on for a period time but was informed that it had to be a specific incident for WorkCover to proceed. (Transcript 2-93 to 94) [113] In response to a question from Mr Sapsford in relation to whether she told the WorkCover Officer about all of the other matters she was now raising, Ms Mears said she was not 100 percent sure if she'd actually seen the (claim) form at this time. Her concern at that point in time was that every time she spoke to the Officer on the phone she could not understand why there was such a focus on the word "yell", which was a word she hadn't used. (Transcript 3-93 to 95) [114] After her initial application for workers' compensation was rejected by WorkCover, Ms Mears initiated a review of that decision through Q-COMP. [115] In the paperwork accompanying the Application for Review Ms Mears mentioned that after her initial phone call to WorkCover she had other conversations with them in which she questioned why they were focusing on the word "yell" when she had said it was more loud and aggressive than yelling. She was told that if her application was rejected she could take the matter up with Q-COMP. -- 11 of 19 -- 12 [116] Attached to her Application for Review was a copy of a seven page complaint Ms Mears was in the process of sending to the Department of Workplace Health and Safety (as a workplace bullying complaint) which showed other examples of Mr Lucas' behaviour. This complaint included what Ms Mears described as a few examples of Mr Lucas' ongoing and frequent behaviour, with the most recent one listed first: • the events of 13 November 2009; • the desk thumping incidents; • the minimum dollar value incident; • the coffee making incident; • the FedEx incident; • the product numbers incident; • the "Oh, what" and rolling of the eyes incidents; • the kitchen incident. [117] In relation to the latter incident, I note that Ms Mears' complaint mentions Ms Dewar approached her in the kitchen on the same afternoon of her meeting with Mr Lucas about Ms Dewar's workload and problems Ms Mears was having dealing with her. 3. The private detective [118] Mr Lucas told Mr Lippett in cross-examination that he had engaged a private detective in May 2010 (through his Solicitors), to investigate Ms Mears because he had the firm belief, based on the evidence in the emails (see above) his son had discovered, that she was working two jobs. "She was falsely stating that she was unable to work and (was) still working … so I wanted to try and prove it.". [119] He said WorkCover hadn't done its job properly and he wanted the truth to come out. (Transcript 2-42) [120] Mr Adams said his firm had been engaged to undertake a period of surveillance to see if the claimant (Ms Mears) was undertaking any form of employment. [121] In the course of that investigation he "conducted enquiries" in relation to a vehicle she had for sale on the footpath outside her residence. The "enquiries" constituted a conversation with Ms Mears which Mr Adams (secretly) recorded using a "pin-hole" video recorder he held in his hand. This recording was later transferred to a DVD (Exhibit 14). The DVD recording was played to Ms Mears, who confirmed its accuracy. She was asked a number of questions by Mr Sapsford about what she said to Mr Adams concerning the amount of time she was spending in her husband's business. [122] In the course of her discussion with Mr Adams, the following exchange occurred: "MEARS: We have Con note books which we hand out ‘cause we have regular clients. We hand them out and they give us that and he writes up a run sheet everyday, just as he picks something up he'll write on, then enter all the Con notes in, then depending on who's getting charged what, but all their charges in for the different thing, then at the end of the month Excel just collates it all into a report for me which I then use that to invoice from. … ADAMS: Pretty minimal then. MEARS: So its mainly like the tolls just diesel that sort of stuff. So he just hands me the Con notes, delivery manifest and the receipt at the end of the day then I just enter it onto it and download my statements just before the end of the month. ADAMS: And away you go. MEARS: So it took a couple of months to sort it out, but it's not bad. But I was working full time. ADAMS: How long have you's been going for? MEARS: Umm, over a year. ADAMS: Over a year? Yeah you must have found it hard doing two jobs. MEARS: Yes excessively. I'm actually out on WorkCover at the moment we have got a court case going on with my ex boss. So I'm finding it a lot better now. So I can spend the time on it, ‘cause it was every weekend and every night just setting up trying to figure out what was going to work for us, -- 12 of 19 -- 13 just playing with it. But if she's good with Excel then it shouldn't be a problem. I think the simpler you keep it the better. ADAMS: The better it is yeah. MEARS: And I really itemise everything on my invoice, so they can refer back to stuff.". [123] After playing this segment, Mr Sapsford questioned Ms Mears about it, as follows: "SAPSFORD: Thank you. You appreciate what you said there, Ms Mears, in relation to what's just gone on? --- Yes. Yes. And it seems to indicate that on a daily basis you are supplied with con-notes, delivery manifests and receipts from your husband; is that right? --- Yes. And now, you indicated to that gentleman you were speaking to that you were finding it a lot better, that you can spend the time on it, you don't have to work on weekends? --- This was a person I was trying to make the - he was asking me in regards to his wife and if - you know, it depends on people’s circumstances. I was trying to put it across that this - I'm trying to sell the van - that this is a business that's, you know, its going well, you know. Are you indicating that you were saying to this gentleman that you were, in fact, working a lot harder than you actually do? --- yes, because they need to be aware --- So what you ---? --- it depends - what he - what I felt he was looking at was a courier van and they tend to have a lot more work and the weekend work is once a month. That's one day a weekend.". (Transcript 3-105) [124] In his final submissions Mr Sapsford invited me to consider Ms Mears’ general behaviour and demeanour in her interactions with Mr Adams, as revealed in the video recording. He said she presented as a woman “without a care in the world” on the same day she had been to see Dr Richardson, who diagnosed her as suffering a psychiatric illness. It was submitted that there must be “some serious doubt as to the truthfulness of the representations made by her to Dr Richardson on the very day that the video reveals a completely different woman.”. (Transcript 4-22 to 23) [125] The first problem with this submission is that Dr Richardson was not asked to give evidence about whether the demeanour of Ms Mears, as reflected in the video recording, was the same or different to the person he had seen earlier that day. Similarly, he was not asked to express a view about whether he might have altered his diagnosis of Mears’ condition based upon what he had seen in the video. The second problem is that I am not qualified to express an opinion about Ms Mears’ likely psychiatric condition on the day in question, irrespective of how I might have perceived she appeared and acted. I can only arrive at a view about her credibility based on my observations of her in the witness box on the day she gave evidence. The medical evidence [126] Dr Graeme MacLaverty said that prior to August 2009 he had seen Ms Mears several times for a few incidental matters but since 14 August 2009 he had seen her regularly. [127] Dr MacLaverty confirmed that the records of the practice he worked in showed that Ms Mears had received treatment in relation to mental health issues on several occasions since June 2003, when she was going through grief processes associated with the death of her son, from a terminal condition, approximately six months previously. [128] Dr MacLaverty saw Ms Mears on Tuesday 17 November 2009 when she complained of bullying in the workplace, having panic attacks and not sleeping well. She said that the manager who owned the company "constantly harasses her, yells at her, etc". Dr MacLaverty diagnosed that she was suffering a depressive anxiety disorder from "alleged workplace bullying [perceived].". [129] He also confirmed that both before and after 17 November 2009 Ms Mears had not mentioned issues about her partner starting a business or working in her partner's business. [130] Under cross-examination Dr MacLaverty confirmed that Ms Mears' visit on 17 November 2009 was the first occasion she had made mention to himself, or any other doctor in the practice, of any problems she was having at work. -- 13 of 19 -- 14 [131] Dr MacLaverty also explained that he had written "alleged workplace bullying [perceived]" because Ms Mears perceived that she was being bullied at work and it was "alleged" because nothing had been proven. [132] In re-examination Dr MacLaverty was asked to express a view about the differences in a patient's capacity to do some paperwork at home in her partner's business compared to their capacity to go back to the workplace that was the source of the bullying. In response, the Doctor said he thought it was a completely different situation. If someone was suffering stress from a workplace then actually having to get up in the morning, get dressed and drive to a workplace which caused distress in the past was almost like a post-traumatic stress, they were obviously going to suffer from anxiety symptoms, if not full-blown panic. By comparison, working at home, where one is aware of one's surroundings and can work by one's self, was a completely different situation. The person is not subjected to the same stress, and they're doing things they are comfortable with in an environment they are comfortable with. [133] Dr MacLaverty also opined that if someone was comfortable in that situation (i.e. at home) it was different to both the old job and also the idea of going to a new job where you were uncertain and out of your comfort zone. "When someone is being like she is I think it would have been very difficult for her.". (Transcript 3-60). [134] Dr Greig Richardson, called by Dorcy Pacific, is a Consultant Psychiatrist who saw Ms Mears on 10 May 2010 for the purposes of preparing a WorkCover report. [135] Dr Richardson was taken to certain aspects of his report, as follows: • Page 3 - Where Ms Mears reported to him that while she was somewhat affronted and shocked by Ms Dewar's level of hostility (during the kitchen incident described above) she was able to talk through the situation with each party coming to a mutual agreement. • Page 6 - Where Ms Mears reported she was, at that point in time, being supported on WorkCover benefits. • Page 6 - Where Ms Mears reported that, at that point in time, she felt she lacked confidence and self esteem with respect to her capacity to return to a working role. • Page 9 - Where Ms Mears reported (again) she was being supported on WorkCover benefits, with her partner being actively employed in his own general freight business. Dr Richardson said he did not recall Ms Mears making any mention of her involvement in that business. [136] Dr Richardson also told Mr Sapsford that during his mental state examination of Ms Mears she appeared to be relatively stable in terms of her mental functioning. She was not confused but her mood was dysthymic, which meant a low, irritable or sad mood. This was not a clinical diagnosis but was used to describe people who are in a somewhat saddened or "down" mood. [137] Finally, Dr Richardson confirmed that he had not received any information regarding the veracity of any of the statements made by Ms Mears. However, in preparing his report he did have access to statements* prepared by Mr Lucas, Ms Donhardt, Ms Dewar and Ms Banks. His role was to listen to what Ms Mears said and evaluate the state of her mental functioning. (*Mr Mears said she had sent Dr Richardson a copy of her complaint to Workplace Health and Safety, evidence which I accept, but he did not mention having sighted it.) [138] Under cross-examination Dr Richardson was taken to page 10 of his report which recorded Ms Mears had indicated a progressive decline in her relationship with Mr Lucas. Dr Richardson was asked whether he was told, or given, any information about some incident that constituted a progressive decline. In response Dr Richardson said "Ms Mears stated that … initially she had a good relationship with her boss, Mr Lucas, but acknowledged that he could sometimes be what she described as irritable, taciturn and with low frustration tolerance. She said that - she described him as a difficult man but the relationship was not difficult. That was in the initial stages. She described him as someone who could - at times he could present as a nice family man but at other times he could 'fly off the handle'.". (Transcript 4-5) [139] Dr Richardson also said that he had been in private practice for about 15 years and regarded himself as being fairly skilled in his capacity to assess peoples' likely veracity. In this instance, Ms Mears' complaint about an apparent altercation with Mr Lucas was considered by him in light of the statements of other people which backed up the fact that on the day in question there was an "interaction" between Mr Lucas and Ms Mears. Dr Richardson opined that when Ms Mears presented her version of events that version appeared to be honestly held by her. For her part, she thought it was a negative interaction and was distressed by that. (Transcript 4-7) [140] Dr Richardson also opined that at the time he saw Ms Mears on 10 May 2010 she was, clinically, experiencing a degree of anxiety and distress. She also felt upset in that she perceived she had been spoken to in a negative and aggressive manner. -- 14 of 19 -- 15 [141] In response to a (long) question about Ms Mears' capacity to help her partner in his business, by preparing invoices and doing other types of administration, compared to her capacity to work for a stranger in outside employment, Dr Richardson said he thought Ms Mears was capable of providing that form of assistance to her partner. However, he expressed some reservation about her degree of involvement, saying that while Ms Mears might be able to spend some time assisting her partner, that didn't necessarily mean she could work an eight hour day. (Transcript 4-8) Findings - incidents 1 to 8, inclusive [142] After carefully considering all of the evidence, and then reflecting upon it at length, I have come to the conclusion that pretty well all of the incidents cited by Ms Mears as examples of Mr Lucas' behaviour towards her occurred largely as she claimed. Leaving aside the coffee making incident, the kitchen incident and the events of 13 November 2009, each of which I shall deal with later, the only exception to this finding is Ms Mears' allegation about Mr Lucas banging her desk as he walked past, which I thought involved a degree of exaggeration on her part. The more likely scenario is that he might have tapped or drummed his fingers on her desk as he walked past with his mind pre-occupied on other matters. On one occasion he may even have hit the desk a bit harder but I do not accept that he banged it on any occasion. [143] So that there can be no doubt, I record that I accept Ms Mears' evidence over that of Mr Lucas about the minimum dollar value incident, the FedEx incident and the product numbers incident, respectively. In relation to the latter incident, Mr Lucas accepted that he may have confused the part numbers and agreed that he would have said something like "Fix it now and bring it straight back down." because of the urgency of getting the orders out. Although he specifically denied doing so, I also think it was highly likely he stabbed his fingers on the paperwork as he gave Ms Mears this direction. [144] On his own admission, Mr Lucas had become frustrated at the number of mistakes Ms Mears was allegedly making (I say "allegedly" because no examples were provided and the issue was not raised with Ms Mears in cross-examination). In those circumstances it seems highly probable that his overall attitude towards her changed over time. On my assessment of the evidence he became less friendly, more critical and somewhat dismissive of her. It was in this frame of mind that he behaved towards Ms Mears in the manner she alleged in the minimum dollar value, FedEx and product number incidents, respectively. [145] For largely the same reasons as expressed in the paragraph immediately above, I also accept Ms Mears' evidence about the rolling of the eyes and the "Oh what?" incidents as well as her other more general complaints about Mr Lucas' overall behaviour towards her. In this regard, Mr Lucas readily acknowledged that when he was "firmly" telling Ms Mears things like "this is wrong and its got to be fixed", his voice was raised more than normal and his body language and demeanour was different to times when he was calm. [146] In addition, I thought it somewhat odd that Mr Lucas consistently stated that he had "no conscious feeling" that he might have rolled his eyes or sighed when talking to Ms Mears. Importantly, he didn't say that he hadn't - which suggested to me that he came to the realisation at some point in time that he might have been doing one or both of those things, or that someone else told him that he was. [147] Further, I found it difficult to accept Mr Lucas' evidence that while he probably would say "Oh what?" anywhere but in the office, and had used that turn of phrase to others, he had never said those words to Ms Mears. [148] In respect to the coffee making incident I have, after considerable consideration, decided to accept Ms Mears' general version of events. In doing so I have especially reflected on Mr Lucas' overall evidence and arrived at the conclusion that he, more likely than not, did say "Oh what?", or perhaps just "What!", when he waved to her to come into the room after she tapped on the glass to his office. To all intents and purposes she was interrupting a meeting he was having with potential new clients. Given his then feeling towards Ms Mears, being one of constant frustration at her performance, his reaction to her interruption of the meeting would have been less than friendly, notwithstanding the presence of his visitors. [149] In deciding to generally accept Ms Mears' version of this incident I have had to reject Mr Kleinschmidt's evidence on the point. He knew the purpose of Ms Mears' interruption and was probably more focussed on the needs of his guests than the initial exchange between Mr Lucas and Mr Mears. If Mr Lucas and Ms Mears did speak at the same time it was more likely to have been after Mr Lucas enquired about the reason for her interruption than immediately upon her entry into the room. [150] Considered in context, this incident seemed to be a specific example of Mr Lucas' saying "Oh what?" to Ms Mears, but in a situation which made her feel somewhat belittled and embarrassed in front of two gentlemen she didn’t know, as well as Mr Kleinschmidt. -- 15 of 19 -- 16 [151] I also accept Ms Mears' evidence about the kitchen incident over that of Ms Dewar where there are any points of difference. This is because while Ms Dewar initially downplayed the whole encounter she ultimately conceded a number of points put to her in cross-examination which had the effect of casting the event in a different light to that which she had first suggested. In relation to this point I also conclude that Ms Dewar's visit to see Ms Mears in the kitchen occurred less than five minutes after Mr Lucas spoke to Ms Dewar about the matters Ms Mears had discussed with him just a few hours earlier, which included information to the effect that Ms Mears had a number of concerns about Ms Dewar’s work performance. Findings - the events of 13 November 2009 [152] At the outset, I reject Mr Hardi's evidence that Mr Lucas spoke to Ms Mears in a manner and tone which was no different to that used during his examination-in-chief (see paragraph [82] above). [153] Rather, I conclude that Mr Lucas spoke in a loud, aggressive and visibly angry manner towards Ms Mears, demanding to know why the paperwork he had expected wasn't downstairs and instructing her to "get it down there now". [154] In arriving at this finding I have essentially accepted the evidence of Ms Mears, who I found to be a credible and honest witness. In any event, after allowing for some partial exaggeration or under-exaggeration of the events of the day (as the case may be) by the respective witnesses, I did not find the substance of Ms Mears' evidence to be substantially different to that presented by Mr Lucas, Ms Dewar or Ms Donhardt. [155] For his part, Mr Lucas conceded that he was angry and spoke to Ms Mears in a raised voice. Ms Dewar recorded in her 3 December 2009 statement that Mr Lucas seemed agitated while he was waiting for Ms Mears to get off the telephone to Mr Hardi and that she could tell from his body language he was not happy about something. She also recorded that he spoke in an angry, but controlled, voice. Ms Donhardt, whilst somewhat equivocal about whether Mr Lucas was frustrated or angry, said that he spoke to Mrs Lucas in a stern voice which was raised "just a little". (I note that Ms Donhardt's statement to WorkCover apparently said Mr Lucas "used a raised stern voice, as he was frustrated." - see page 1 of attachment to Exhibit 8 and page 8 of Exhibit 6). [156] I also conclude that during the course of his second visit to Ms Mears' desk, during which he spoke to her about the transposed figures on the invoice, Mr Lucas spoke to Ms Mears in a somewhat sarcastic and condescending way by inviting her to show him on the manifest the part number she had included in the invoice, then, when she couldn't find it (he already knew she wouldn't), telling her she'd invoiced the wrong item out of the store. Conclusions Was Ms Mears a worker? [157] Dorcy Pacific does not dispute that Ms Mears was a worker within the meaning of the Act. Did Ms Mears sustain an injury? [158] Dorcy Pacific does not concede that Ms Mears suffered an injury on the basis the diagnosis of her injury by both Dr MacLaverty and Dr Richardson is dependent upon a set of circumstances related to them by, what the Appellant describes as, "an untruthful witness". [159] Dorcy Pacific goes on to say "It may well be that the determination of injury is on a 'subjective basis' (Q-COMP v Foote3 and Sheridan v Q-COMP4) but even such a subjective basis requires acceptance of the workers recitation of her version of events as being truthful. Given the above interaction between the worker and Dr Richardson and the worker and the (private) investigator it is submitted this Honourable Commission would have some real doubt in this regard.". (Paragraph 11.1 of written submissions) [160] Notwithstanding the Appellant's submissions, I am satisfied, from my consideration of the evidence of Dr MacLaverty and Dr Richardson, that Ms Mears did suffer a psychiatric or psychological injury as a result of events that happened in the course of her employment with Dorcy Pacific. Was employment a significant contributing factor to the injury? [161] Dorcy Pacific generally accepts that in the absence of competing contributory factors and in the presence of the definition "a significant contributing factor" the Commission may well find that should Ms Mears have sustained 3 Q-COMP v Foote [2008] 189 QGIG 539 4 Sheridan v Q-COMP [2009] 191 QGIG 13 -- 16 of 19 -- 17 an injury then that injury was one which arose out of or in the course of her employment where employment was at least a significant contributing factor to the contraction of that injury. [162] Given that the threshold in such determination is relatively low, in that employment need only be a significant contributing factor, and not the significant contributing factor, it is clear that that test, on the evidence of Dr MacLaverty in particular, has been met. Did the injury arise out of management action? [163] Dorcy Pacific does not seriously dispute that in circumstances where the matters complained of by Ms Mears related to the conduct of her employer, Mr Lucas, then it follows that the events complained of as being contributory to her psychiatric or psychological illness were matters which arose out of or the course of management action within the meaning of that term as used in s. 32(5) of the Act. [164] However, the Appellant argues that the interaction between Ms Mears and Ms Dewar (i.e. the kitchen incident) was inconsequential in the aetiology of injury. Reasonable management action taken in a reasonable way? [165] Mr Sapsford argued that any assessment of "reasonable management action" for the purposes of s. 32(5) of the Act is by way of an objective approach. In determining the reasonableness or otherwise of management action taken in a reasonable way "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account." (Prizeman v Q-COMP)5. Reasonable is "reasonable in all the circumstances of the case." (WorkCover Queensland v Kehl) 6. (Paragraph 9.1 of written submissions) [166] He went on "(a)ny consideration of whether the management action was reasonable and taken in a reasonable way (and any collateral assessment of whether the Appellant's perception of that management action was accurate) is to be conducted by the Court by way of an objective analysis of the facts and circumstances surrounding the management action in question.". (Paragraph 9.2 of written submissions) [167] In this respect, Mr Sapsford argued very strongly that any consideration of the management action in question must necessarily focus upon the primary allegation maintained by Ms Mears in her application for compensation (see Exhibits 1 and 2). Although the Dorcy Pacific recognised that these matters were expanded by additional material supplied to Q-COMP in Ms Mears' review application of January 2010, as well as in the present hearing which is by way of hearing de novo, it remained the case that it was the events of 13 November 2009 which were: • complained of consistently by Ms Mears in her application for workers' compensation and relation of events to WorkCover; • contemporaneous to her cessation of work and seeking of medical attention; and • complained of by Ms Mears to both her General Practitioner (Dr MacLaverty) and to the Psychiatrist (Dr Richardson). [168] In addition, Mr Sapsford submitted that the fact that Ms Mears made no report of the other incidents (see above) in her application for compensation or to either of the medical practitioners simply underscored the lack of importance of these events to Ms Mears. In such circumstances, he said, it was unsurprising that she was unable to recall, with any specificity, when the events actually occurred. [169] As such, it was put that the "primary consideration" for the Commission as presently constituted was whether or not the actions taken by management on 13 November 2009, and that date only, constituted reasonable management action taken in a reasonable way. In this regard it was submitted that the correction of an employee in relation to a mistake (or even a misunderstanding) is a matter of daily business in the interaction between management and staff. [170] After carefully considering Mr Sapsford's well crafted and well presented submissions I am unable to agree that my consideration of the management action involved, in particular its reasonableness or otherwise, is to be limited to a consideration of the events of 13 November 2009. This is for a number of reasons. [171] Firstly, I do not think that the limited information contained in the initial Application for Workers’ Compensation and the Psychological and Psychiatric Claim Information Summary form (Exhibits 1 and 2) has the degree of importance suggested by Mr Sapsford. The respective forms were completed by an officer of WorkCover and were never signed by Ms Mears. It was her evidence, which I accept, that she disputed what 5 Prizeman v Q-COMP [2005] 180 QGIG 481 6 WorkCover Queensland v Kehl [2002] 170 QGIG 93 -- 17 of 19 -- 18 had been recorded from virtually the minute she found out about it and this is reflected in her Application for Review, submitted to Q-Comp on 11 January 2010. While the 13 November incident was clearly foremost in her mind, and the major focus of her discussions with WorkCover and in the Application for Review, the other incidents were raised as examples of Mr Lucas’ overall behaviour towards her quite early in the prosecution of her application. [172] Secondly, although the individual incidents might not have been significant in themselves, Ms Mears' evidence was that it was the accumulation of incidents, each of which was an illustration of Mr Lucas' behaviour towards her, which caused her to doubt herself and her abilities, and to wonder whether she was doing a good job or not. (Transcript 3-77) Ultimately, after the events of 13 November 2009 - especially the first interaction with Mr Lucas that day - it all became too much for her and she decompensated. [173] Thirdly, while it is true that Ms Mears could not recall the dates of the desk thumping incidents, the minimum dollar value incident or the product numbers incident she was able to state that the FedEx incident happened within the last three or four months of her employment, but definitely after May 2009. The coffee making incident was about a month before her employment ceased, while the kitchen incident occurred roughly around the same time. Ms Mears' other complaints, about the rolling of the eyes, the "Oh, what?" comments and her concerns about Mr Lucas' behaviour, all appear to relate to the time period from June/July 2009 until the cessation of her employment on 13 November 2009. [174] Fourthly, to concentrate on the events of 13 November 2009 to the exclusion of the other incidents would involve ignoring Ms Mears' evidence under cross-examination (which I accept) to the effect she "had been having small panic attacks or shaking of the hands and fluttering of the heart driving to work prior to that (date) and I had - was becoming more and more under stress.". She said she had noticed these things not long after the kitchen incident, which she placed as having occurred in October 2009. (Transcript 3-100 to 101) [175] Fifthly, Dr MacLaverty's notes of 17 November 2009 also confirm that Ms Mears told him on that date she was having panic attacks, was experiencing nausea, had knots in the stomach and wasn't sleeping well as a result of what was happening at work. (see Exhibit 15). [176] Finally, to exclude the other events from consideration would also be to ignore Mr Lucas' evidence about his increasing frustration at the mistakes Ms Mears was allegedly making as well as his concession that his behaviour towards her changed over the last four to five months of her employment. (Transcript 2-58 to 59) [177] I am also unable to agree with Mr Sapsford's submissions that the interaction between Ms Mears and Ms Dewar in the kitchen was inconsequential in the aetiology of injury. Ms Mears was clearly intimidated by the manner, tone and circumstances of Ms Dewar's approach as well as being concerned about Mr Lucas' breach of confidence. Her evidence was that the panic attacks and other symptoms of stress (see paragraph [174] above) started not long after this incident. [178] All things considered, I do not think that the individual incidents complained about by Ms Mears can be treated as separate or discrete events, with the management action associated with each incident considered in isolation. Rather a "global" evaluation (see Delaney v Q-COMP7) is required because of the nature of the incidents and the involvement of common participants over a relatively short period of time - namely four to five months. [179] During that period Mr Lucas' whole attitude towards Ms Mears changed because of the alleged mistakes she was making. As I have already recorded (see paragraph [144]) he became less friendly, more critical and somewhat dismissive of her. [180] The work environment was such that she began to have panic attacks and to feel more and more stressed (see paragraph [174]). Ultimately, after the events of 13 November 2009, she could take it no longer and went to see Dr MacLaverty who diagnosed her as having a depressive anxiety disorder. [181] In the course of the verbal interactions between them complained about by Ms Mears, particularly the events of 13 November 2009, Mr Lucas' behaviour towards her, considered as a whole, was not reasonable. [182] Mr Lucas' failures were not mere blemishes. They were more significant than that. They went to the core of his management relationship with Ms Mears. For example, it was not appropriate for Mr Lucas to hold his hand in a "Stop!" position in front of Ms Mears' face and repeatedly say "Uh, uh, uh, uh" when she attempted to talk. It was not appropriate for him to say "What?" or "Oh what?" and roll his eyes when she came to ask him a question or seek his advice. 7 Delaney v Q-COMP 178 QGIG 197 -- 18 of 19 -- 19 [183] In relation to the events of 13 November 2009 it was not appropriate for Mr Lucas to raise his voice and chastise Ms Mears, in a clearly angry manner, when there was an obvious misunderstanding about the preparation of invoices by going into "negative stock". The appropriate reaction would have been to ask, in a reasonable tone of voice, something like "What happened? I thought we agreed we would pre-produce invoices by going into negative stock?". [184] It was also not appropriate for him to request Ms Mears to correct a mistake later that day by requiring her to look on a manifest for a part number he knew did not exist and then, after she could not find it, to tell her (in words to the effect) "No, its not there is it? … fix it up.". He knew at that stage she was upset but his words and actions did not reflect his knowledge. [185] Further, it was not appropriate for Mr Lucas to countenance a situation where Ms Dewar was permitted to directly confront her "accuser" (i.e. the kitchen incident). The appropriate management response should have been to ask Ms Mears if she would mind if Ms Dewar spoke directly to her or by sitting the two women down and facilitating a discussion between them. [186] Simply put, Mr Lucas' interactions with Ms Mears, insofar as her specific complaints are concerned (other than the desk thumping allegation), and the way he handled Ms Mears' complaint about Ms Dewar - which led immediately and directly to the kitchen incident - constituted management action which was taken in an unreasonable way. [187] In light of the above findings Ms Mears' injury is not excluded from the definition of "injury" within the meaning of s. 32(5) of the Act. Accordingly, I uphold the decision of Q-COMP dated 1 February 2010 and confirm that the application for workers' compensation by Ms Mears is one for acceptance. [188] I dismiss the appeal (WC/2010/14) by Dorcy Pacific. [189] I reserve the issue of costs. [190] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2010 15 June 16 June 26 July 28 July (Transcript) Released: 28 January 2011 Appearances: Mr S. Sapsford (Counsel), instructed by MVM Legal for the Appellant. Mr F. Lippett (Counsel), directly instructed by the Respondent. -- 19 of 19 --