Bunnings Group Limited v Q-COMP [2010] QIRC 81

CITATION: Bunnings Group Limited v Q-COMP (WC/2010/65) – Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Bunnings Group Limited AND Q-COMP (WC/2010/65) COMMISSIONER FISHER 15 December 2010 Appeal against decision of Q-COMP - Onus of proof to establish decision wrongly made - Evidence - Agreed matters - Stressors - Principal stressor - Alteration in hours significant contributing factor - How the alteration in hours came about - Credibility of witnesses - Casual employee engaged on a regular and systematic basis - Management action reasonable and taken reasonably - Employee's injury withdrawn from s. 32(1) by the operation of s. 32(5) of the Act - Decision of Q-COMP set aside - Appeal allowed. DECISION [1] On 16 October 2009 Karen Paull lodged an Application for Compensation with WorkCover for "Anxiety/stress disorder" said to have been sustained during the course of her employment with Bunnings Group Limited (Bunnings). In response to a question posed on the Application for Compensation form as to "How did the injury happen" Ms Paull said "Cut hours, management have acted aggressive towards me". In the WorkCover Psychological and psychiatric injury claim information summary for workers form dated 26 October 2009 Ms Paull nominated the following three factors as being the most significant in contributing to her injury: "1. Work place Bullying 2. Being Pressured Mentally/Physically 3. Being threaten (sic) concerning myself and daughter.". [2] Ms Paull's Application was rejected by WorkCover on 3 December 2009. [3] Ms Paull applied for a review of the decision by Application for Review dated 20 January 2010. The decision of the Review Unit, Q-COMP made on 31 May 2010 was to set aside the decision of WorkCover to reject the application for compensation and to substitute another decision that the application for compensation is to be accepted. [4] Bunnings now appeals that decision. [5] Bunnings and Q-COMP agree that the onus of proof rests with Bunnings to establish that the decision of the Review Unit, Q-COMP was wrongly made: State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne.1 Evidence Bunnings [6] Evidence in support of Bunnings' appeal was called from the following witnesses: Peter Conrad Schilling, Acting Complex Manager, Bunnings Warehouse Booval (until August 2009); Kerrie Anne Shepley, Activities Organiser, Bunnings Warehouse Booval; Cassandra Hellyer, Activities/Community Involvement, Bunnings Warehouse Booval; Ryan Baker, Complex Manager, Bunnings Warehouse Booval, 2005-February 2009; Roger Scott Sweet, initially Future Leader Program and then Coordinator, Bunnings Warehouse Booval, 2006-September 2009; Emily Howe, Human Resources Coordinator, Bunnings; and Dr Hugh Daniel, Consultant Psychiatrist. Q-COMP The following witnesses were called by Q-COMP: *Lynn Absalom, Team Member, Bunnings Warehouse Booval; 1 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 at p. 1448. -- 1 of 8 -- 2 Daniel Colin Albury, part-time Team Member, Bunnings Warehouse Booval; Katrina Ellen Conway, casual Team Member, Bunnings Warehouse Booval; Karen Paull, DIY Presenter, Bunnings Warehouse Booval; Dr Fereshteh Shahidzadeh Mahani, General Practitioner, Medicross Yamanto; and Donna Simpson, Psychologist, Ipswich and West Moreton Psychology Clinic, Ipswich. *Denotes correspondence tendered by consent. The author was not required for cross-examination. Agreed Matters [7] The parties agree, and the Commission accepts, that the following elements of s. 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) are satisfied: • Ms Paull is a worker; and • Ms Paull suffered a personal injury being a major depressive disorder. The first two nominated stressors [8] Ms Paull nominated three factors in the Psychological and psychiatric injury claim form as being significant contributors to the injury. Q-COMP did not lead evidence in respect of the first two factors and the case proceeded on the basis that the third factor encompassed the explanation from Ms Paull as to how the injury happened, viz., that "cut hours/management acted aggressive towards me". In the circumstances Bunnings and Q-COMP agree that the first two cannot be sustained. However, given the factor of "workplace bullying" also encompassed allegations of sexual harassment and such allegations are serious I consider that some further comment needs to be made. [9] The alleged sexual harassment of Ms Paull by Mr Sweet was found not to have been substantiated by the Q-COMP Review Officer and as noted above Q-COMP decided not to lead evidence with respect to that allegation. In cross-examination Ms Paull gave particulars of her allegation. Those particulars are not repeated here, because I do not find them to be credible in light of the inconsistencies between her evidence and the information she gave about the matter to Ms Simpson, her Psychologist. Further, Ms Paull alleged that she had reported the matter to both Mr Schilling and Ms Howe. Both denied any such report being given to them and no reference is made in Ms Howe's contemporaneous notes of Ms Paull making a complaint of sexual harassment by Mr Sweet. Bunnings submitted therefore that the weight of evidence supports a finding on the balance of probabilities that there was no sexual harassment by Mr Sweet of Ms Paull. [10] The Commission accepts that submission without hesitation. The inconsistencies in Ms Paull's evidence and report to Ms Simpson have already been noted. I also accept the evidence of Mr Schilling and Ms Howe in respect of this matter. In particular, I accept the evidence of Ms Howe that had Ms Paull raised that with her in any of the telephone conversations that she would have made a note about it. She said that such a complaint would have caught her attention. As Ms Howe is a trained and experienced human resources professional I accept that evidence as correct. [11] The Commission is satisfied that there was no bullying and sexual harassment. It follows then that those factors could not have been significant contributing factors to the injury sustained by Ms Paull. The Principal Stressor [12] Counsel for Bunnings submitted that the principal stressor has always been the events around Ms Paull's cessation of the role in the Do it Yourself (DIY) classes. Bunnings conceded that this stressor arose out of, or in the course of, employment and employment was a significant contributing factor to the personal injury. [13] Q-COMP relied on the evidence of Dr Daniel and Ms Simpson to submit that the alteration in hours was a significant contributing factor to the injury. [14] Having considered that evidence and taking into account the concession made by Bunnings the Commission accepts that the change around the DIY role, including the hours of work, was a significant contributing factor to the injury. [15] Where the parties disagree, and the issue requiring a finding to be made by the Commission, is whether the injury is withdrawn from s. 32(1) because of the operation of s. 32(5) of the Act. This provision allows the withdrawal of an injury from compensation if the injury arose out of, or in the course of, reasonable management action taken in a reasonable way. -- 2 of 8 -- 3 [16] The relevant facts are now set out. Given the difficulties with some of the evidence from Mr Schilling, Mr Sweet and Ms Paull, which are addressed later, I have done the best I can to piece together the sequence of events and details of the conversations. [17] Ms Paull commenced employment with Bunnings in March 2007 as a Team Member on a casual basis. From the commencement of her employment Ms Paull presented the DIY classes at the Bunnings Warehouse Booval. Ms Paull was regularly rostered to work all day on Saturday and Sunday and in the last 18 months of her employment had initiated a Ladies' DIY class on Wednesday nights which she presented. [18] A position had existed for some time in the Bunnings Warehouse Booval of Community Activities Organiser. Ms Paull complained that she was not told when this position last became vacant in 2008 and Kerrie Shepley was appointed. In mid-2009 Ms Shepley was planning to take maternity leave with the result that the position was to become vacant on a temporary basis. Ms Shepley said that in about mid-April the position of Community Activities Organiser was advertised on noticeboards in the team room which was used by all Team Members and in the office used by herself and Ms Paull. Mr Schilling confirmed that it was standard practice when filling an internal vacancy to advertise it on noticeboards and Mr Sweet believed that the advertisement for the position had been placed on noticeboards. Ms Hellyer said that she saw the position advertised within the store and as a result expressed her interest in the position to Mr Sweet. Ms Shepley went further and said that she had advised Ms Paull of the impending vacancy and when it was advertised she encouraged Ms Paull on about two occasions to apply. [19] Ms Paull said she did not know the position had been advertised and denied that Ms Shepley had encouraged her to apply. [20] Although Mr Sweet could not recall how interested employees made an application for the position it is clear that no formal application process was adopted. According to Ms Hellyer, the process was that interested employees informed Mr Sweet. He interviewed Ms Hellyer but could not recall interviewing anyone else. Ms Hellyer said she was aware of two other employees from the store having been interviewed. Mr Sweet did not interview Ms Paull because she had not approached him about the position. Ms Hellyer was appointed to the temporary vacancy. [21] Ms Paull was informed of Ms Hellyer's temporary appointment to the Community Activities position on Wednesday 29 April 2009 by Ms Shepley. On learning of this Ms Paull said she "nearly collapsed to the floor just in shock"; and she "couldn't stop crying"; "couldn't breathe" and "couldn't feel anything". As a result of her distress two managers of the store, Jay and Luke, told her to go home. Ms Paull did not return to work. [22] The following day Mr Sweet telephoned Ms Paull at home after learning that she had failed to complete her rostered hours the previous night. Mr Sweet described Ms Paull as being "very aggressive on the phone, rude, upset and angry". Ms Paull described Mr Sweet as "smug". Mr Sweet said that he attempted to calm Ms Paull down and suggested she come in for a meeting to discuss the matter. She declined this offer and asked that Mr Schilling contact her. I note that Ms Paull said that others (Jay, Luke and Mr Sweet) had told her that Mr Schilling would contact her but nothing turns on who initiated the first telephone call on 30 April 2009. In the result Mr Schilling telephoned Ms Paull about ten minutes after the call with Mr Sweet had ended. Mr Sweet said he had no further contact with Ms Paull. [23] In his evidence Mr Schilling said that he found Ms Paull to be stressed and "jumping around a fair bit in her conversation". Mr Schilling said he told Ms Paull that leaving a class in a huff was not acceptable and if she was unable to control herself in a more professional manner then perhaps the DIY position was not for her. He said that Ms Paull replied with words to the effect that "this is all a bit too stressful for me and maybe I shouldn't do that role". As a consequence of that statement Mr Schilling spoke to her about other areas in the store where he believed she could make a contribution as Ms Paull had great product knowledge and customer service. Areas of the store included the builders' department and a position in night fill. [24] In cross-examination Mr Schilling was quite clear that Ms Paull said she did not want to do the DIY classes any more. However, Ms Paull denied that she told Mr Schilling that she wanted to relinquish the role. She said she loved her job and enjoyed it. [25] Ms Paull was invited to attend a meeting with Mr Schilling at the store on 1 May 2009. At the meeting Ms Paull complained about Mr Sweet and other employees. It appears that no discussion occurred about the DIY position. According to Ms Paull, Mr Schilling told her to have the weekend off to allow him to have discussions with other coordinators to work out what was going on and to investigate what had happened. Ms Paull also said that there was no discussion about her hours, only a possibility about her working with a new coordinator. She said Mr Schilling undertook to get back to her and when he did not she telephoned human resources. -- 3 of 8 -- 4 [26] Ms Paull spoke to Ms Howe on 8 May 2009. Ms Howe kept contemporaneous notes of the conversation. With the assistance of those notes Ms Howe said that Ms Paull was ringing to complain that she had sought the Community Activities position in the store but another person had been appointed. Ms Paull alleged that the employee was appointed because she was the best friend of the manager. Ms Paull further alleged that she did not know the position had been advertised and when she queried Ms Shepley as to how the position could be filled Ms Shepley replied that she had told her about the advertisement. [27] Ms Howe asked Ms Paull if she was comfortable raising her concerns with Ms Schilling to which she replied that Mr Schilling was "nice" and she found him approachable. Ms Howe also informed Ms Paull that she would be giving feedback to Mr Schilling about her call. [28] It is important to note that Ms Howe recorded in her notes that Ms Paull "got very emotional" and was "confused - could not give examples" in reference to being asked to back up her complaints with dates, times and people. Ms Howe also recorded that she had "stopped making notes as the same issues were raised more than once". In evidence Ms Howe said that she was initially "confused about the context and content of her complaint". [29] As a result of receiving the telephone call Ms Howe telephoned Mr Schilling to tell him of the concerns Ms Paull had raised. She and Mr Schilling discussed the matter and Mr Schilling agreed to contact Ms Paull. He did so on 11 May 2009. [30] Mr Schilling was unclear about the content of this conversation. However, Mr Sweet who was present during this conversation, confirmed that casual shifts in night fill (replenishment) and one other area were discussed. Mr Schilling said that Ms Paull was quite upset and after the offer of other roles had been made she hung up on him. [31] Ms Paull provided a different version of this conversation. She alleged that Mr Schilling told her that her hours, along with other employees, were going to be cut. She understood that Mr Schilling was going to contact her again with further information about her hours and where she would be working but that he did not. Ms Paull said she was never offered hours. Mr Schilling said, however, that he tried to contact Ms Paull on two more occasions but without success. [32] Ms Howe had a second set of contemporaneous notes from 14 and 15 May 2009. The first set of notes from 14 May 2009 recorded that Mr Schilling had telephoned on 14 May 2009 and had left a message to say that he had spoken with Ms Paull. On 15 May 2009 Ms Howe had a discussion with Mr Schilling about the conversation he had had with Ms Paull. Ms Howe recorded that Mr Schilling said he had offered Ms Paull hours in replenishment. Ms Paull had said that she wanted to retain her position in DIY however, Mr Schilling informed her that as a casual employee she could not pick and choose her hours or her role. Mr Schilling reported that Ms Paull had claimed he was trying to move her out of the business. [33] Ms Paull telephoned Ms Howe on 14 May 2009 but did not leave a message. She rang again on 18 May 2009. Ms Howe again made notes of the issues raised by Ms Paull during that conversation. Many are not relevant to the issue of her decompensation and so are not listed here. Relevantly, Ms Paull is recorded to have said that Mr Schilling had offered her night fill hours. She also reported that her position was now being advertised. Ms Howe recorded that she told Ms Paull that she was a casual employee and as such management reserves the right to move team members where they see fit. Also, Ms Paull should be grateful for the hours being offered as many other casuals had had their hours cut due to the current economic climate. Ms Howe assured Ms Paull that Mr Schilling was not trying to move her out of the business. At that point Ms Paull replied "OK, fine, thank you" and hung up. [34] With reference to the position currently being advertised, Ms Howe believed this to be the Community Activities Officer position. However, it seems that it was the DIY position that was being advertised. Ms Howe told Ms Paull that it was her decision whether to apply for that position or to accept the night fill hours that had been offered. [35] Ms Howe again noted that Ms Paull "was all over the joint" - a reference to Ms Paull being confused, being unable to provide specific information about dates and times and jumping from one story to the next. She also recorded that Ms Paull became more and more aggressive and would not listen to Ms Howe's comments. [36] The DIY position was advertised in the Bunnings Booval store sometime in mid-May 2009. Daniel Albury said he had seen an advertisement in a few locations in the store for "DIY Team Member Perm Part Time 15hrs wk x 2". Mr Albury detached the notice from the noticeboard in the lunch room and took it to Ms Paull at her home. [37] Although the position was advertised it is clear that it was never filled. The evidence from a number of witnesses is that after Ms Paull left work on 29 April 2009 the DIY role was filled by different employees from around the store depending on the subject matter of the particular class to be presented. -- 4 of 8 -- 5 [38] Ms Paull did not apply for the permanent part-time DIY position. [39] It is agreed between Bunnings and Q-COMP that Ms Paull decompensated in May 2009. [40] About six weeks after Ms Paull left the store on 29 April 2009 Ms Paull said she contacted the national human resources office of Bunnings. As a result of this contact she alleged that Mr Sweet telephoned her at home and threatened her and her daughter's employment. (Ms Paull's daughter also worked at Bunnings Warehouse Booval). This allegation is relevant to the third factor nominated by Ms Paull. [41] Mr Sweet vehemently denied the allegations. He said he only contacted Ms Paull on one occasion, on 30 April 2009, and denied telling her at any stage not to contact human resources or she and her daughter would not get shifts. Mr Sweet added that he did not have any management responsibility for Ms Paull's daughter. Findings [42] Bunnings and Q-COMP are slightly at variance over the central issue. Whereas Q-COMP contends that the issue is a reduction in hours (and this is the reason nominated in the Application for Compensation as to how the injury happened), Bunnings submits that the issue is around the alteration to Ms Paull's duties. The Commission has concluded the best approach is to examine how Ms Paull came to be no longer working. Consideration of this encompasses how the alteration to Ms Paull's duties occurred and whether this involved a reduction in her hours of work. The Commission then needs to determine whether Ms Paull's injury arose out of, or in the course of, reasonable management action taken in a reasonable way. [43] It is common ground that Ms Paull left the DIY class early in the evening on 29 April 2009 and as a consequence both Mr Sweet and Mr Schilling had cause to contact Ms Paull by telephone on 30 April 2009. Q-COMP takes issue with Mr Schilling's claim that Ms Paull's hours in the DIY section were terminated because she said during this conversation that she did not want to do the DIY role "if it was going to be this stressful". Q-COMP submitted that it was only in these proceedings that the allegation was first made, despite the submissions made by Bunnings in the WorkCover and Q-COMP review process. Q-COMP also submitted that the claim was at odds with the evidence from Ms Howe and Mr Schilling that she wished to continue in the role. Moreover, Ms Paull denied that she had made the comment and made clear that she valued her role. [44] Bunnings said that information from Mr Schilling had not previously been put to WorkCover and Q-COMP because he had left the employ of Bunnings by the time the Application for Compensation was made and had only recently become available. Mr Schilling's departure from Bunnings was advised to Q-COMP during the review together with advice that he was not contactable to obtain a direct statement. Bunnings endeavoured to piece together information from Mr Sweet who had also left the Booval store at the time the Application was made and Ms Howe's notes. [45] The Commission accepts that the first occasion Q-COMP became aware of the claim was during the proceedings. Counsel for Bunnings outlined in his opening that Mr Schilling would be giving evidence to that effect and that Mr Schilling accepted that Ms Paull no longer wanted to work in the DIY section so offered her other opportunities. Although Mr Schilling's view of the matter may not have been known to Q-COMP prior to the proceedings the Commission considers there is a reasonable explanation for its past omission and should not be discounted because it was not previously available. [46] Whether the statement was made goes to the question of the credibility of the witnesses. As mentioned earlier, difficulties were encountered with the evidence of Mr Schilling, Mr Sweet and Ms Paull. With respect to Mr Schilling and Mr Sweet, their evidence was at times a little vague, particularly in respect to the details of conversations. However, there is some explanation for this. Mr Schilling no longer works for Bunnings and had had no access to any relevant documentation prior to the hearing and Mr Sweet, in moving to take up work in a Bunnings store in another location, mislaid his work diaries for the relevant period. The Commission has not drawn any adverse inferences about their credibility because of this vagueness; however, it has made the reconstruction of events more difficult. [47] The Commission generally found Mr Schilling to be a credible witness whose evidence is generally preferred to that of Ms Paull. Mr Schilling no longer has an association with Bunnings and has no vested interest in the outcome of the proceedings. He was clear and consistent when pressed in cross-examination that Ms Paull had made the statement that she did not want to do the DIY role "if it was going to be this stressful". [48] In contrast Ms Paull was a difficult witness. It was not suggested by Bunnings that she was dishonest nor is this the view of the Commission. Rather, she was adamant about her version of events even when they could not be objectively established. An example of this is where questions were being asked about Ms Paull's second conversation with Mr Schilling. Ms Paull asserted that the conversation occurred on 4 May 2009 even though he -- 5 of 8 -- 6 greeted her with a comment that he hoped she enjoyed Mother's Day. Ms Paull would not concede that the conversation must have occurred on 11 May as she would not accept the proposition that Mother's Day traditionally falls on the second Sunday in May. Further, much of her evidence about her conversations with Ms Howe was not borne out by Ms Howe's contemporaneous notes. Dr Daniel opined that Ms Paull had a tendency to paranoid misinterpretation of the motives of others. Like Dr Daniel the Commission found Ms Paull to want to go behind the question being asked rather than answering the question and consistently with Dr Daniel, Mr Schilling and Ms Howe, found that Ms Paull jumped around in the evidence she gave. In the circumstances the Commission has generally preferred the evidence of the witnesses called by Bunnings where there is conflict between them and Ms Paull. [49] In this light the Commission accepts that during the conversation with Mr Schilling, Ms Paull said that she did not want to do the DIY role "if it was going to be this stressful". Because of that understanding Mr Schilling discussed with Ms Paull various alternative positions in the store, including builders' hardware and replenishment. Ms Paull acknowledged in her evidence that during the meeting of 1 May 2009 Mr Schilling raised one alternative role which involved working with a new coordinator. I am satisfied that Mr Schilling discussed possible alternative roles with her on 30 April and 1 May 2009. [50] The evidence also shows that Ms Paull did not object to or otherwise identify concerns about Mr Schilling canvassing alternative positions with her either during the telephone conversation of 30 April or the meeting on 1 May 2009. Certainly, Ms Paull was concerned about what was going to happen with the DIY Ladies' class, to which she had a strong attachment, but did not raise with him issues such as when she could return to that class or why he was canvassing other positions in the store if she believed she occupied the DIY role. The evidence shows that Ms Paull was not afraid to raise concerns with Mr Schilling and so the Commission considers that she would have raised concerns if they had existed. The meeting of 1 May 2009 seemed to focus on a series of complaints made by Ms Paull about other employees rather than her role in Bunnings in the future. [51] Ms Paull understood the outcome of the meeting was that Mr Schilling was going to "look into what was going on and get back" to her. She acknowledged that this was in the context of working with the new coordinator and Mr Schilling advising that he would "sort out" the DIY class. The Commission cannot conclude that Ms Paull was unaware that alternative roles were being considered for her. [52] An issue arises whether it was reasonable for management to firstly accept that Ms Paull had relinquished her DIY role and proceed to find alternative roles for her. I am not entirely satisfied that Ms Paull was intending that Mr Schilling draw the inference that she was relinquishing her role when she said she did not want to do the DIY role "if it was going to be this stressful". Ms Paull was passionate about the role and I believe she would not have readily relinquished it. However, I am satisfied that it was not unreasonable for Mr Schilling to infer that Ms Paull was giving up the role in light of the fact that she had left the store in distress and the agitation and upset she was showing during the telephone call. I accept a better approach would have been for Mr Schilling to have clarified with Ms Paull on 1 May 2009 that she had in fact relinquished the DIY role but given that Ms Paull did not raise any objections to other positions being canvassed with her I do not consider it was unreasonable management action taken in an unreasonable way for Mr Schilling to act on his understanding and consider other roles for Ms Paull. [53] Although I consider alternative roles were discussed I am not satisfied that Mr Schilling offered Ms Paull hours in replenishment during the conversation on 30 April 2009. The only reliable evidence about dates is Ms Howe's contemporaneous notes of the various conversations she had with Mr Schilling and Ms Paull. In her notes of 15 May 2009 Ms Howe recorded for the first time any conversation about an offer of hours. There she notes that Mr Schilling offered Ms Paull hours in replenishment. This is consistent with Mr Schilling's evidence (albeit he said the particular conversation occurred on 30 April 2009) where he said he offered her hours but as she was a casual employee the hours would be on an "as needs" basis. Mr Sweet confirmed that hours were offered during this conversation. [54] I am satisfied that a specific number of hours in replenishment were not offered by Mr Schilling. In my view he was making an offer of a role for Ms Paull's consideration with hours to be determined if she accepted it and subject to the requirements of the store. I accept that the lack of specificity in the number of hours would have been a cause for concern for Ms Paull, however, the principal concern at that point for Mr Schilling was to find Ms Paull a role within the store given his belief that Ms Paull had relinquished her DIY role. When she did not respond to the offer Mr Schilling tried to contact her again and when no further contact was made the situation was allowed to lapse. Again, perhaps the matter could have been handled better but it does not make the steps taken by Mr Schilling unreasonable management action taken in an unreasonable way. In fact, on one view it is arguable whether Mr Schilling had a responsibility to find an alternative role for her in the circumstances of Ms Paull's departure from the store on 29 April 2009 and her casual status. [55] Ms Howe also recorded in the same note that Mr Schilling told her that Ms Paull wanted her DIY role. It is apparent that Ms Paull changed her position between her initial conversation with Mr Schilling on 30 April 2009 -- 6 of 8 -- 7 and her conversation with him on 11 May 2009. I accept that Ms Paull may not have realised that she had changed her position from 30 April 2009 given her anxiety, upset and otherwise confused state. The evidence from Mr Schilling, Ms Howe and Dr Daniel all attested to the difficulty in understanding Ms Paull because she was confused and unclear in her conversation. In those circumstances I consider she resolved to continue in the position as a result of approaches she had received since 29 April 2009 from several ladies from her Wednesday night DIY class who had pressed upon her their desire to have her return to the classes. The change of mind by Ms Paull does not appear to have been either picked up by or focused on by either Mr Schilling or Ms Howe. [56] This leads to the issue of the advertisement for two part-time DIY positions. Although it was raised in the review it was not particularly pressed by Q-COMP in submissions. Ms Paull claimed not to have known of the advertisement before the closing date. However, this is contradicted by the notes made by Ms Howe on 18 May 2009. Ms Howe told Ms Paull she could apply for the position, however, she did not do so. [57] I accept that it would have been desirable for Mr Schilling to have notified Ms Paull of the advertisement during their conversation on 11 May 2009. However, I note that Ms Paull had hung up on him after this call and in any event the positions were not proceeded with. [58] It is the case that Bunnings advised during the review process that Ms Paull's hours were reduced around the time of the global financial crisis and consistent with the business needs to reduce or cease casual hours. Q-COMP submitted that the claim that Ms Paull's hours in the DIY section were terminated for operational reasons could not be accepted. However, it is unnecessary to deal with this submission as it was not pressed by Bunnings on appeal and the Commission has concluded that it was Ms Paull who relinquished the hours in the DIY section. [59] I do not accept Ms Paull's evidence that Mr Schilling told her that her hours were going to be cut as a consequence of budgetary considerations. Mr Schilling's evidence, which I accept, was that he told her she was employed as a casual team member, casual hours fluctuate and there were no guaranteed casual hours. In cross- examination he refuted the suggestion that the budgetary considerations were discussed. I also accept that at the time Ms Howe advised her that the hours of many casuals were being reduced in response to the economic climate. Ms Howe's contemporaneous notes do not record any complaint from Ms Paul about reduced hours. [60] Ms Paull had worked consistent hours in the DIY section and it is likely that her hours had not been reduced when the hours of other casual employees had been from time to time. In this context it is open to conclude that Ms Paull inferred from the statements of Mr Schilling and Ms Howe that her hours were likely to be reduced were she to be moved to another position within the store. [61] The view taken by Bunnings is that even though Ms Paull had consistently worked in the DIY role for a period of about two years she was a casual employee. As such, Bunnings was entitled to deploy Ms Paull in any role at any time to suit operational requirements. Under the Bunnings Warehouse Agreement 2006 the engagement of casual employees is defined to "commence at the start of each shift for which the casual is employed and shall terminate at the end of that shift". As Ms Paull had relinquished her DIY role Mr Schilling took reasonable management action to seek out other casual roles for her and as a consequence of being a casual employee fulfilling another role her hours could fluctuate according to business demands. [62] Ms Paull contended in evidence that at the time of her decompensation she was employed on a permanent part- time basis. She said Mr Baker, the former Complex Manager, had offered her a permanent part-time position. This was denied by Mr Baker who said that he had held no discussions with Ms Paull about her employment status and that she was employed on a casual basis. He agreed in cross-examination that Ms Paull was regularly rostered in the DIY role which required work on weekends and for the last 12 months of his employment in the store Ms Paull had also worked Wednesday nights, however, at no time had he indicated to her that her position should be – or was – changed to permanent part-time. [63] The argument by Q-COMP was, effectively, that Ms Paull could reasonably have expected her position was permanent given she had been employed in the same role with consistent hours for a number of years. I do not accept that Ms Paull was employed on a part-time basis. I accept that she was employed as a casual employee. To adopt the terminology of the Workplace Relations Act 1996 (Cth), the applicable industrial legislation at the time, Ms Paull was a casual employee engaged on a regular and systematic basis. Nonetheless as a casual employee Ms Paull was still subject to the vagaries of precarious employment. Her role could be changed and her hours altered. The Bunnings Warehouse Agreement 2006 specifically provides at clause 4.2 that to achieve the objectives of the Agreement, "Bunnings and the SDA declare their commitment to ensuring that: 4.2.1 Warehouse Team Members are willing to accept total flexibility of jobs and duties subject to individual skills and abilities to meet company requirements.". -- 7 of 8 -- 8 [64] In this case while the company requirements were not the overriding objective, Ms Paull's indication that she wanted to relinquish the DIY role was the prompt to review her job and hours. It follows then that some flexibility was required on the part of Ms Paull. [65] Although the Agreement does not expressly provide for consultation in relation to changes in jobs or duties it would be reasonable to expect that such changes would be the subject of consultation between the employee and management. In relation to hours, rosters are set at least 14 days in advance but may be varied with seven days' notice or by mutual consent. As far as possible rosters are set by mutual agreement. In this case, consultation occurred with Mr Schilling initially canvassing various jobs with Ms Paull and leading to a role in night fill being offered. That Ms Paull did not ultimately like what she was being told by Ms Howe and Mr Schilling does not make their actions unreasonable management actions taken in an unreasonable way. [66] Finally, it is also necessary to consider the third factor nominated by Ms Paull as a stressor that Mr Sweet had threatened her and her daughter in relation to their employment. The threat was alleged to have occurred about six weeks after Ms Paull left the store on 29 April 2009 after Ms Paull contacted the national human resources office of Bunnings. [67] The Commission simply does not find the evidence of Ms Paull credible on this matter. There was simply no reason that Mr Sweet would have been aware that Ms Paull had contacted the national human resources office of Bunnings or for him to contact her about this. It was not a matter that came within his responsibility. Further, as he had no management responsibility for Ms Paull's daughter there is no credible reason for him to make such a threat. [68] In view of the foregoing findings the Commission considers that, although the management action was not perfect, the management action was reasonable and taken reasonably with the inevitable conclusion that Ms Paull's injury is withdrawn from s. 32(1) by the operation of s. 32(5) of the Act. [69] The Commission therefore concludes that the decision of the Review Unit, Q-COMP was wrongly made. The appeal is allowed. The decision of the Review Unit, Q-COMP is set aside and the Commission determines the Application is not one for acceptance. [70] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2010 17 August 6, 7, 12 and 29 October 24 November Released: 15 December 2010 Appearances: Mr J. Dwyer, Counsel directly instructed by the Appellant. Mr S. Gray, Counsel instructed by Ms J. Horton, Q-COMP on behalf of the Respondent. -- 8 of 8 --