Exide Australia Pty Ltd v WorkCover Queensland [2002] ICQ 22 (2002) 170 QGIG 95

31 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 95 INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Exide Australia Pty Ltd AND WorkCover Queensland (No. C25 of 2002) PRESIDENT HALL 17 May 2002 DECISION The first point raised by this appeal is a short one. The matter before the Industrial Magistrate concerned a worker who decompensated in consequence of a restructuring of his employer’s business and an associated increase in his workload. The issue is whether s. 34(5)(a) operated to remove the worker’s psychological condition from the definition of “injury”. The Industrial Magistrate found:– “From Mr Hutchin’s evidence, in particular, I find the restructuring processes were reasonable. In other words, I should think it was reasonable for the employer, in this case, to restructure the business in Queensland to make it less top heavy, as it were; certainly, less expensive to run. However, where I part company with Mr Horneman-Wren is concerning those processes being taken in a reasonable manner. On the whole of the evidence, I find they were not.”. It is contended for the appellant that by that finding the Industrial Magistrate found that both the decision to restructure and the increase in workload which was a function of that decision were properly classified as reasonable management action reasonably taken. It is submitted that the Industrial Magistrate rejected the application of s. 34(5)(a) because His Worship was of the view that in omitting to provide the worker with additional training or to provide the worker with assistance in working through the difficulties caused by the increase in workload, the employer had not implemented what were inherently reasonable decisions in a reasonable way. It is then contended that the Industrial Magistrate was mistaken as to the evidence in that the evidence about lack of training and support went to a period before the restructure. With respect, I am unable to adopt the appellant’s interpretation of His Worship’s decision. It seems to me that His Worship was drawing a distinction between the decision to restructure the business and the increase in workload which resulted from the restructure. His Worship, or so it seems to me, is asserting that the decision to restructure was a reasonable management decision but, that in standing idly by whilst workers tried to cope with an increased workload flowing from the restructuring and in failing to provide assistance, the employer implemented the otherwise reasonable decision to restructure in a unreasonable way. There was evidence before His Worship to justify such a finding. It is to be found in the admission against interest of the employer’s Queensland State Manager, Mr Hutchins. It was the evidence of Mr Hutchins that:– “Necessarily by reducing the number of people handling the same area they’re going to have a bigger workload; that’s right, isn’t it? – It depends how we do the business. Indeed, what you needed to do and what you needed to encourage your salespeople to do was to look for better ways of doing things? – That’s correct. How to cope for the bigger workload in the same time? – That’s correct. Because there was little doubt after the restructure they were all coping with a much bigger workload? – That’s correct.”. And later that: “I left that up to the sales group to take through and to come up with those types of suggestions themselves.”. It may be conceded that it was the evidence of the worker that his condition was attributable to a lack of training and a lack of support during the period before the restructure. But that was not the medical evidence. As commonly happens, the medical practitioners gave evidence that the self-diagnosis was wrong and that although the consequence of the earlier lack of training and support was that the worker had become vulnerable, it was the overwork associated with the restructure which was the cause of the decompensation. For example, Dr Swift said:– “And the events which he didn’t, is that what you go on to say, ‘But the increased demands arising from the takeover of task [sic] led to the development of the clinical syndrome’? – Yes.”. In the alternative, it was contended that the worker’s condition was withdrawn from the definition of “injury” by s. 34(5)(b). It seems to me that it cannot be over-emphasised that whereas para (a) of sub s. (5) refers to reasonable management action taken in a reasonable way “by the employer”, para (b) sub s. (5) refers to reasonable management action “being taken against the worker”. Here, there is no evidence that any action, whether characterised as reasonable management action or not, was being taken against the worker or against any group of which the worker was a member. Furthermore, the circumstance that para (b) refers to “reasonable management action” rather than “management action” leads inexorably to the conclusion that para (b) is intended to operate only where there is actual management action and has no role where the management action lies all in the perception of the worker. The appeal is dismissed. There is no application for costs. Dated 17 May 2002. D.R. HALL, President. Appearances:– Released: 17 May 2002 Mr A. Horneman-Wren instructed by Phillips Fox, Solicitors for the appellant. Mr S.P. Sapsford instructed directly for the respondent. Ms C. Heyworth-Smith instructed by Rees and Sydney Jones, Solicitors, by leave, for Mr Lawrie (the worker). -- 1 of 1 --