Edmunds v Workers' Compensation Regulator [2022] QIRC 285

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Edmunds v Workers' Compensation Regulator [2022] QIRC 285 PARTIES: Edmunds, Maree (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO.: WC/2020/95 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 29 July 2022 HEARING DATES: 19 and 20 October 2021 MEMBER: HEARD AT: Power IC Townsville ORDERS: 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action reasonable – appeal dismissed LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11 and 32 -- 1 of 17 -- 2 CASES: Allwood v Workers' Compensation Regulator [2017] QIRC 088 Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437 Davis v Blackwood [2014] ICQ 009 Mahaffey v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 116 Ms SB [2014] FWC 2104 O'Brien v Q-Comp (2007) 185 QGIG 383 Prizeman v Q-COMP (2005) 180 QGIG 481 Svenson v Q-COMP (2006) 181 QGIG 629 Workcover Queensland v Kehl (2002) 170 QGIG 93 APPEARANCES: Ms M Edmunds, as self-represented Appellant Ms H Blattman of Counsel, directly instructed by the Respondent Reasons for Decision [1] Ms Maree Edmunds ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') dated 29 June 2020, to reject an application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). [2] The Respondent rejected the Appellant's claim that she suffered a compensable psychiatric or psychological injury whilst employed by the Appellant as a security officer at Securecorp Qld Pty Ltd ('Securecorp') at the Queensland Rail ('QR') site in Flinders Street, Townsville. [3] The primary question to be determined in this appeal is whether the Appellant suffered an injury within the meaning of s 32 of the Act. At the date of injury, s 32 defined the meaning of an 'injury' in the following terms: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— … -- 2 of 17 -- 3 (b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury. … (5) Despite subsection (1)…, 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; ... [4] The onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that she has sustained an injury pursuant to s 32(1) of the Act and the injury is not excluded by the operation of s 32(5). [5] The Respondent does not dispute that the Appellant was a worker in accordance with s 11 of the Act and concedes the Appellant sustained a personal injury in the form of an aggravation of a pre-existing psychiatric illness, namely, chronic complex post-traumatic stress disorder which arose out of, or in the course of, her employment, and that her employment was the major significant contributing factor to the injury. However, the Respondent asserts that the personal injury arose in circumstances set out in s 32(5) of the Act, that being reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, and, or alternatively, her perception or expectation of reasonable management action being taken against her. Statement of Facts and Contentions [6] The Appellant outlines the following events in her statement of facts and contentions, that: (a) the Appellant attempted to call the Supervisor, Mr Fred Alterator, and Business Manager, Mr Daniel Story, during her shift on 22 September 2019 however neither answered her call; (b) the Appellant looked for the rules for contacting staff on-call after hours on the notice board in the mailroom however they were extremely hard to find; (c) Mr Alterator returned the Appellant's call and said he would be in as soon as possible however arrived at his usual time; (d) when Mr Alterator arrived, he entered the mailroom to place his belongings on the bench and then came over to the Appellant and "began to rage at me, red faced, pointing his index finger, 40cms in front of me, in my personal space, so I had to back up to the corner of the room, against the photocopier, and could go no further"; (e) the Appellant was in shock, "disbelieving that anyone could rage in this way to someone who is sick" and was diagnosed with bronchitis later that morning; (f) Mr Alterator stated that the Appellant should have 'rung and rung and rung him' continuously referring to the rule about contacting staff. The Appellant advised that she had looked for it and could not find it; -- 3 of 17 -- 4 (g) Mr Alterator noticed the Appellant's security keys were still in her pocket and demanded them. The Appellant asked if she should put the keys back in the key safe, and Mr Alterator angrily responded that she was to give the keys to him; (h) the Appellant took the keys out of her pocket and Mr Alterator snatched them from her hand and remarked that her hands were shaking. The Appellant denied that her hands were shaking but then noticed they were shaking "from his tirade of abuse"; (i) the Appellant saw another QR staff member in the car park and told him that she had just been 'traumatised'; (j) Mr Alterator accused the Appellant of 'being on drugs' which the Appellant contends was because he saw her taking Panadol for her osteoarthritis; (k) Mr Alterator continued his 'verbal abuse' until a QR staff member arrived for work at 6.25am; (l) Mr Alterator would normally have already put the three flags up the flag poles, unlocked the vestibule, collected the vestibule railings, placed them in the spare room and unlocked and opened the green gate near the annexe. None of these tasks had been completed and after the QR staff member arrived, Mr Alterator stormed back into the mailroom and retrieved the three flags before angrily leaving via the front door; and (m) the Appellant was confused by what had happened and so called after Mr Alterator, stating, 'I should be back by next weekend' which was her normal shift. [7] In response to the Appellant's statement of facts and contentions, the Respondent states the following, that: (a) Mr Alterator returned the Appellant's call at 5.09am and the Appellant answered on the second occasion he returned her call at 5.11am. Mr Alterator advised the Appellant he would attend the workplace as soon as possible, arriving on site at 5.39am; (b) Mr Alterator greeted the Appellant in the mailroom and asked how she was; (c) the Appellant followed Mr Alterator to the kitchen where he was putting drinks in the fridge and enquired why neither he nor Mr Story answered her calls; (d) a conversation followed where: (i) Mr Alterator advised the Appellant of the correct contact procedure to use in the circumstances; (ii) Mr Alterator showed the Appellant where the contact process was located on the bulletin board in the mailroom; (iii) Mr Alterator noticed that the Appellant's hands were shaking and asked the Appellant if she was okay; -- 4 of 17 -- 5 (iv) the Appellant said they were shaking because of a medical condition; (v) Mr Alterator asked what medical condition; (vi) the Appellant said that she has osteoarthritis and stated that she took pain relief medication for the condition every four hours, including during her work shifts; (vii) Mr Alterator said that he would need to tell his manager of the Appellant's condition given the physical requirements of her role as a security officer; (viii) Mr Alterator asked the Appellant to go home as she was unwell; (ix) Mr Alterator remained calm and used a modulated tone throughout the conversation; and (x) the Appellant continued to follow Mr Alterator around as he commenced performing his duties and claimed that Mr Alterator was trying to get rid of her, which he denied, and again requested she please go home; (e) the Appellant did not leave the site until approximately 6.40am; and (f) the Appellant phoned Mr Alterator at approximately 7.20am to advise him the water filter in the office required changing. The conversation was pleasant and the Appellant did not appear distressed. Appellant's submissions [8] The Appellant's submissions can be summarised as follows, that: (a) the Appellant's injury was caused by "an extremely aggressive, red-faced, belligerent, completely angry, Supervisor, yelling at the top of his capability, at me, finger pointing, in my personal space"; (b) the behaviour started upon Mr Alterator's arrival on site, in the mailroom and took place from 5.40am to 6.25am non-stop. The "chain of verbal abuse" only ended when a QR worker came in earlier than usual to attend a conference in the adjacent conference room. This worker did not recall that she arrived at 6.25am on that day and so was not called to give evidence; (c) upon hearing the QR worker enter the reception area, Mr Alterator moved at an exceptional pace from where he was in front of the Appellant to the side of the room between the mailroom and the reception area which made it appear as if he was there 'apparently' working; (d) at that time in the morning, there are no onsite QR staff entering or leaving and no other staff such as cleaners, tradespeople, security staff or members of the public around; -- 5 of 17 -- 6 (e) the behaviour of Mr Alterator on the morning of 23 September 2019 does not, in any way, come under the heading of 'reasonable management action' as per s 32(5) of the Act; (f) the Respondent agrees that the Appellant did sustain an injury in the form of an aggravation of a pre-existing psychiatric/psychological disorder, however, then retracts that agreement by alleging that the injury arose out of, or in the course of reasonable management action; (g) Mr Alterator is a Supervisor and not Management within the business of Securecorp, referring to Canadian General Electric Company Limited v The Ontario Labour Relations Board;1 and (h) there are no Managers in Townsville employed by Securecorp, with the management of Townsville Securecorp controlled by two Business Managers in Brisbane. [9] The Appellant submits that she attended upon her General Practitioner, Dr Poolman, at a pre-arranged appointment at 9.00am on 23 September and was diagnosed with bronchitis. Dr Poolman also completed a WorkCover claim form after the Appellant advised her of the incident involving Mr Alterator earlier that morning. The Appellant continued to receive monthly medical certificates from Dr Poolman up to December 2020 when she resigned from her employment. [10] The Appellant submits that Mr Alterator's conduct in yelling and screaming at her was likely to be because he had been in error by not being contactable despite being on-call. The Appellant submits that Mr Alterator was furious that she had phoned Mr Story, who was the next person in line. [11] The Appellant submits that Mr Alterator 'completely fabricated his sworn testimony, as well as his response to the incident as requested by Securecorp'. [12] The Appellant disputes that her perception of what transpired was untruthful, unbelievable, or made up as a result of an irrational dislike of Mr Alterator. [13] The Appellant submits that the action was not 'reasonable in all the circumstances of the case' as per Workcover Queensland v Kehl ('Kehl'),2 as Mr Alterator 'chose to verbally bully, verbally attack, and verbally abuse' her while she was ill with bronchitis. The Appellant contends that Mr Alterator knew she was ill before coming into work and no measure of reason was applied by him. [14] The Appellant contends that she did not misperceive Mr Alterator's verbal abuse, submitting that his behaviour was "astounding in its verocity, length, lack of empathy, duty of care, compassion, intimidation, rage, ferocity, as well as an absolute horror of an experience". 1 (1956) OR 437. 2 (2002) 170 QGIG 93. -- 6 of 17 -- 7 [15] Distinguishing this matter from that considered in Svenson v Q-COMP ('Svenson'),3 the Appellant submits that she did not have a problem with her perception of what took place in the workplace and that as a security officer, one must be a good observer of people, their actions, conversation, attitude, personality and overall presentation. [16] The Appellant acknowledges that there were no witnesses to the relevant incident, submitting that "I can only supply you with my credentials – and mention also, that I have a very good Reference from a Manager at QR, as well as a Reference from Securecorp". The Appellant referred to her role as the Chief Warden, and further outlined her other qualifications, volunteer work and membership of various local organisations. [17] The Appellant outlined her difficult financial position following her resignation from her position at Securecorp following a direction to return to work or be dismissed, along with her difficulty in securing legal assistance to pursue this appeal. Respondent's submissions [18] The Respondent's submissions are extensive and relate primarily to the questions of disputed fact which will be considered further below. The relevant general submissions are as follows, that: (a) it is the Appellant's perception of the employer's conduct that must be taken into account. To the extent that the Appellant experienced symptoms of stress and anxiety because of a misperception of Mr Alterator's actions and motivations for them, the Appellant's appeal must fail by operation of s 32(5)(b) of the Act; and (b) in Svenson, President Hall found that the appellant had 'developed a propensity to perceive "bullying" in the conduct of others and to react to it'. President Hall continued: …Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred. But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s. 34(5) because of the claimant's flawed perception, see esp. s. 34(5)(b).4 Consideration [19] The issue to be determined in this matter is whether the injury arose out of reasonable management action taken in a reasonable way or the Appellant's perception of reasonable management action being taken against her pursuant to s 32(5) of the Act. [20] The Appellant's contention as outlined in her statement of facts and contentions is that her injury was caused by an interaction she had with Mr Alterator at the workplace on 23 September 2019. 3 (2006) 181 QGIG 629. 4 Ibid 630. -- 7 of 17 -- 8 [21] The Appellant commenced her shift at 7.00pm on the night of 22 September 2019 and was scheduled to finish at 6.00am on 23 September 2019. The Appellant's evidence was that she wanted to be relieved from her shift just after midnight as she was feeling unwell. [22] The Appellant attempted to contact Mr Alterator on his mobile phone during the shift to advise that she was sick. Mr Alterator was rostered to be 'on-call' however he did not answer the call. The Appellant called again and left a message on Mr Alterator's phone. The Appellant then attempted to contact Mr Story by calling his mobile phone which went unanswered. The Appellant then called back again and left a message. [23] The Appellant submits that she considered calling the Queensland Ambulance Service, but she did not want to desert the post and knew that she had already arranged an appointment with her doctor for 9.00am that morning. [24] Mr Alterator returned the Appellant's call at 5.09am. The Appellant answered on the second attempt when he called her again at 5.11am at which time Mr Alterator advised that he would attend the workplace as soon as possible. Mr Alterator arrived on site at approximately 5.40am. [25] The evidence of the conversation which followed upon Mr Alterator's arrival differs significantly between the parties involved. [26] The Appellant's evidence was that when Mr Alterator arrived, he began yelling loudly at her for not following the on-call procedures, stating that she was required to keep ringing. The Appellant gave evidence that Mr Alterator pointed his finger at her in her personal space whilst yelling at her.5 [27] Mr Alterator's evidence is that after arriving, he greeted the Appellant and stated: Maree, are you okay? Is everything all right?6 [28] The Appellant denies that Mr Alterator greeted her or asked if she was okay or if everything was alright. [29] Mr Alterator's evidence is that the Appellant responded by saying: What is the good of having two managers on call when they don't answer their phones?7 [30] The Appellant denies asking the above question, stating that she had been told by Mr Story not to call Mr Anderson, Business Manager, Brisbane, after hours as he lives out of phone range. [31] In response, Mr Alterator's evidence was that he made the following statement: "Maree, two things: (1) if you're going to call someone at that time in the morning" - because the missed call was, from recollection, just after midnight and the text message was approximately about an hour later, would have been just after 1 am some time. I said, "if you're going to try and get in touch with somebody at that time of morning, keep ringing. If it's a medical emergency, keep 5 T 1-5, ll 9-10. 6 T 2-35, ll 7-10. 7 T 2-35, ll 14-15. -- 8 of 17 -- 9 trying to get a hold of us. One of us is not – one of us is going to answer. We're not going to hear the phone go off once at that time of night. I apologise. I was asleep. I had to get up for work."8 [32] The Appellant submits that Mr Alterator did not speak in a calm manner, rather, he said 'you need to ring, ring, ring, ring', which she submits was not a rule of Securecorp.9 [33] Mr Alterator gave evidence that the Appellant's response was, 'Well, it was okay because, thankfully, the headache went away'10 after which he asked the Appellant when she had started feeling sick. Mr Alterator stated that the Appellant said that she started feeling sick prior to her shift on the Saturday evening, to which he responded by asking the Appellant, 'why didn't she contact earlier, why didn't she – before she started her shift, even earlier in the evening, if she wasn't feeling well. It would have been easy to cover the shift'.11 [34] Mr Alterator stated that the Appellant responded that she did not call beforehand because she was not sure as to what she needed to do and she was waiting for the new station guard to finish his shift to ask him what she should do.12 [35] Mr Alterator stated that he asked the Appellant, 'Are you trying to say that you don't know what to do when you're feeling sick?… It's on the bulletin board',13 to which the Appellant replied that she did not see the bulletin.14 [36] The Appellant submits that she was aware that a new rule regarding contacting staff had been issued by Mr Alterator in May 2019 and all staff were required to read and sign to confirm they were aware of the new rule. The rules were then placed on a notice board in the mailroom.15 [37] The Appellant submits that it was exceedingly difficult to discern which of the many Securecorp letter-headed A4 sized papers was the one she needed to find as the board was completely covered by these papers.16 [38] Mr Alterator showed a photograph of the notice board on which a folder labelled 'Bulletins' was attached.17 The Appellant submits that there was no folder at that time and the photograph was taken after the 23 September 2019. [39] Mr Alterator's evidence was that he showed the Appellant where the contact process was located on the bulletin board in the mailroom, stating: Then I – I got quite concerned, because the bulletin is very clearly visible --- There's no mistaking it. And Maree had had a number of performance issues leading up to this which had raised a number of concerns with me --- both in regards to not only her temperament, but her ability to recall facts 8 T 2-35, ll 17-24. 9 Appellant's closing submissions filed 6 January 2022, [28] ('Appellant's closing submissions'). 10 T 2-35, ll 26-27. 11 T 2-35, ll 33-35. 12 T 2-36, ll 39-42. 13 T 2-36, ll 44-47. 14 T 2-37, ll 6-7. 15 Appellant's closing submissions (n 9) [25]. 16 Ibid. 17 Exhibit 2. -- 9 of 17 -- 10 to be able to log things accurately, to know what to report and what not to report… it was very concerning… I had genuine concern for her welfare, her health.18 [40] Mr Alterator's evidence is that the Appellant enquired as to whether he really wanted to know about her condition to which he replied that he did as it might give him a bit more of an understanding as to what was going on.19 Mr Alterator gave evidence that the Appellant told him that she had severe osteoarthritis in her spine, hands, all of her joints and that she took Panadol every four hours without fail for pain relief as prescribed by her doctor. The Appellant denies giving Mr Alterator these details, stating that she does not have severe osteoarthritis in her spine, rather she has a bulging disc and only has osteoarthritis in some of her fingers and only takes Panadol when required. [41] The Appellant submits that Mr Alterator's evidence was a fabrication as he had never been concerned with her working abilities. The Appellant states that she responded to Mr Alterator that she could not find the Bulletin at which point he walked toward the notice board and suddenly asked 'are you on drugs?', to which the Appellant responded 'yes, pharmaceutical ones, Panadol'.20 [42] Mr Alterator states that he replied that he felt that her osteoarthritis and the requirement to take painkillers every four hours without fail affected her ability to do her job and that he had a duty of care to report it. He explained that if she got hurt, for example by a fall, he would be liable if he had not reported it.21 [43] Mr Alterator stated that he noticed that the Appellant's hands appeared to be shaking and the Appellant denied it.22 He states that he asked the Appellant to calm down and told her she needed to go home. The Appellant agrees that her hands were shaking but denies that Mr Alterator told her to calm down or go home. [44] During the interaction, Mr Alterator gave the following evidence: There were – there was a number of times throughout – because I'm a creature of habit, when I'm doing jobs in the morning, I like to have things down by a certain time, so I was trying to take the flags out to hang the flags up --- and Maree was basically – if I went to leave, Maree would raise her voice so loud that a few times, I would get the door, open the door and I'm like, "No, I have to go back..."23 [45] Mr Alterator stated that the building is shared with 'network control', who are responsible for the safety of trains north of Rockhampton, and he did not wish to distract them in any way, and that in any case he did not want an incident of someone screaming unnecessarily onsite.24 [46] In cross-examination, Mr Alterator said that it was two or three times that he tried to leave the mailroom to go and erect the flags, and once he got as far as hitting the actual exit button and opened the door before having to turn around and come back to the 18 T 2-38, ll 4-14. 19 T 2-39, ll 11-12. 20 Appellant's closing submissions (n 9) [35]. 21 T 2-39, ll 36-38. 22 T 2-39, ll 39-41. 23 T 2-40, ll 12-19. 24 T 2-40, ll 19-25. -- 10 of 17 -- 11 mailroom.25 The Appellant disputes this evidence, stating that Mr Alterator never tried to leave the mailroom to carry on with his duties until the QR staff member entered the building. The Appellant states that she did not raise her voice and it was Mr Alterator who yelled at the top of his voice.26 [47] Mr Alterator's evidence was that throughout the whole conversation he was calm.27 [48] After leaving the worksite, the Appellant phoned Mr Alterator at approximately 7.20am to advise him the water filter in the office required changing because there were ants in her water bottle.28 [49] Mr Alterator gave evidence that he had raised a number of performance issues with the Appellant and the Appellant had previously received a first and final warning.29 Witness evidence [50] Ms Deb Patel gave evidence regarding her experiences with Mr Alterator. Ms Patel stated that Mr Alterator had called her and screamed at her about bringing in work keys at a time when he was on sick leave. The impression I formed from Ms Patel's evidence was that she had a clear distain for Mr Alterator and Securecorp. Ms Patel admitted to disliking Mr Alterator and also gave evidence that she considered the employer had wronged her son because of their handling of an incident where he attended work after consuming alcohol whilst employed by Securecorp. I do not place significant weight on Ms Patel's evidence as it does not shed any light on the events of 23 September 2019 and is impacted on by Ms Patel's clear animosity toward both Mr Alterator and Securecorp. [51] Mr Tony Edmunds, the Appellant's husband and an employee of Securecorp, gave evidence that the Appellant phoned him at approximately 7.55am on the 23 September 2019 and told him she had been verbally abused by Mr Alterator and that she would be discussing it with her doctor at an appointment that morning. Mr Edmunds had been disciplined by Securecorp for accessing the CCTV footage to assist the Appellant in identifying the staff member she spoke with in the carpark after leaving on 23 September 2019. I do not place significant weight on Mr Edmunds' evidence given he was not present during the interaction between Mr Alterator and the Appellant the morning of 23 September 2019. [52] Mr Alterator gave clear evidence of his recollection of the interaction with the Appellant on 23 September 2019. There was nothing implausible about the account he provided. [53] Mr Alterator presented as a worker who took his job seriously and whilst his diary entries and oral evidence suggest that he was becoming frustrated with the Appellant, there is no reason not to accept his account of the events of 23 September 2019. [54] The Appellant gave evidence of her recollection of the interaction with the Appellant on 23 September 2019. I formed the view that the Appellant was an honest witness who was 25 T 2-66, l 45 – T 2-67, l 2. 26 Appellant's closing submissions (n 9) [39]. 27 T 2-40, ll 42-44. 28 T 1-32, ll 1-10; T 2-41, ll 4-7. 29 Exhibit 1. -- 11 of 17 -- 12 genuinely impacted by her interaction with Mr Alterator. The difficulty I have with accepting the Appellant's account, however, is that some aspects seem implausible. Whilst the Appellant's perception of the interaction may have been that Mr Alterator was yelling abusively for 45 minutes, the content of his speech as recalled by the Appellant could not possibly have taken that long to deliver. [55] I also note that the relationship between the Appellant and Ms Patel was characterised by significant conflict, with the Appellant making three complaints about Ms Patel alleging harassment leading to a mediation. Both the Appellant and Ms Patel were aggrieved by Mr Alterator's role in informing management about Ms Patel's son attending work after consuming alcohol which resulted in a first and final warning for the Appellant and Ms Patel's son resigning during a disciplinary meeting. Medical evidence [56] The Appellant's Psychiatrist, Dr John Rogers, outlined a summary of the interaction with Mr Alterator as relayed to him by the Appellant. Dr Rogers stated in his report that 'I can confirm that as an immediate response to the above incident, there was a significant deterioration in her mental state'.30 [57] Dr Rogers gave evidence that although post-traumatic stress disorder can cause cognitive function to be impaired, in his opinion, the Appellant gave an accurate account of events to him on 9 October 2019. Dr Rogers also stated that when he saw the Appellant on 13 September 2019, ten days prior to the relevant incident, she was anxious, fearful and ruminating about tensions at work, overtime, and a situation brewing between the Appellant and her supervisor. [58] Ms Wendy Arnold was the Appellant's treating Psychologist and outlined a similar summary of the interaction with Mr Alterator as outlined to her by the Appellant. Ms Arnold's report states that the Appellant's condition had been improving but quickly decompensated after the incident on 23 September 2019 to the point where she cannot return to work if Mr Alterator is in her work area. [59] On the basis of the evidence of Ms Arnold and Dr Rogers, I accept that the Appellant's injury arose out of her employment and that employment was the major significant contributing factor to the injury. Did the injury arise out of management action? [60] As outlined above, I accept that the injury arose out of the interaction between the Appellant and Mr Alterator on 23 September 2019. In considering the operation of s 32(5) of the Act in this matter, I must first determine whether this interaction is considered 'management action'. 30 Exhibit 3. -- 12 of 17 -- 13 [61] In Allwood v Workers' Compensation Regulator,31 Deputy President O'Connor described 'management action' in the following terms: The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment… … …The exclusory action in s32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…32 [62] The Appellant submits that the action of Mr Alterator was not 'management action' on the basis that he was her supervisor rather than her manager. The Respondent notes that it was never in issue that Mr Alterator was the Appellant's manager. The fact that Mr Alterator held the title 'supervisor' rather than 'manager' does not exclude the actions from being those of 'management'. [63] In Mahaffey v Simon Blackwood (Workers' Compensation Regulator),33 Deputy President Kaufman determined that a manager's interaction with staff, at least to the extent of giving directions and making requests of them fits within the concept of management action.34 [64] In O'Brien v Q-Comp,35 the Commission referred to the scope of management action as considered in Canadian General Electric Company Limited v The Ontario Labour Relations Board,36 which stated: ...managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages … The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking of an operations, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious … that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise…37 [65] It appears that the interaction between Mr Alterator and the Appellant commenced as a conversation about the process the Appellant should have followed when she needed to contact someone when she became unwell. The conversation then progressed into a discussion about the Appellant's physical injury and fitness for work. In my view, these topics are managerial as they were not connected to everyday duties and concerned the Appellant's employment. The interaction between Mr Alterator and the Appellant falls within the concept of 'management action' for the purposes of s 32(5) of the Act. 31 [2017] QIRC 088. 32 Ibid [60] and [68]. 33 [2015] QIRC 116. 34 Ibid [32]. 35 (2007) 185 QGIG 383. 36 (1956) OR 437. 37 Ibid 443. -- 13 of 17 -- 14 Was the management action reasonable? [66] In Kehl, President Hall stated that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. The question is then whether the conduct of Mr Alterator constitutes reasonable management action. [67] The task of determining the reasonableness of management action was considered by Martin J in Davis v Blackwood:38 …The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.39 [68] In Svenson, President Hall determined that 'what is required is reasonable management action reasonably taken in all the circumstances of the case, not best practice'.40 [69] As determined in Prizeman v Q-COMP,41 it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account. [70] It is clear from the evidence that the relationship between the Appellant and Mr Alterator was, at the very least, tense and uneasy. The Appellant's psychologist, Ms Arnold, states in her report that the Appellant 'indicated she found Mr Alterator's behaviour in the workplace to be difficult and controlling'.42 [71] Mr Alterator's evidence was that the Appellant's behaviour had been erratic in the weeks leading up to the incident of 23 September 2019. He referred to a number of performance concerns, including an incident in which the Appellant had lodged a security action form because she saw a pigeon near the male toilets, and withdrew it the next day because the bird had flown away.43 [72] The Respondent submits that it was appropriate and necessary that Mr Alterator enquire with the Appellant about her health in the context of the incidents that had occurred leading up to that day, and her behaviour on the morning of 23 September 2019. The Respondent submits it was reasonable for Mr Alterator to discuss with the Appellant her obligations in relation to who to call when sick and her fitness for duty. [73] Although it was the manner and tone in which these topics were raised that formed the basis of the Appellant's claim, I do consider that Mr Alterator should have assessed more critically whether it was appropriate to raise such issues at all at that particular time. It was not unreasonable to raise both concerns, however, I would question whether the appropriate time to do so was when an employee was sick and had waited a number of 38 [2014] ICQ 009. 39 Ibid [47]. 40 (2006) 181 QGIG 629, 631. 41 (2005) 180 QGIG 481. 42 Exhibit 4. 43 T 1-15, l 5; T 2-39, ll 2-6. -- 14 of 17 -- 15 hours to be relieved. This issue was not pressed by the Appellant and in fairness to the Respondent, Mr Alterator's evidence that the Appellant stated that her headache had 'gone away' by the time he arrived may have led him to believe that she was no longer ill by that time.44 [74] The Respondent submits that Mr Alterator was dealing with an extremely difficult employee in the Appellant, who was behaving erratically and aggressively to him that day, as she had done in the past. [75] The difficulty in assessing the reasonableness of Mr Alterator's conduct is that the evidence of one party almost entirely contradicts the evidence of the other. The Appellant's evidence is that Mr Alterator yelled at her for approximately 45 minutes, whilst the evidence of Mr Alterator is that the Appellant was the one who raised her voice preventing him from performing his duties. There is no eye-witness evidence of the interaction and both the Appellant and Mr Alterator gave clear oral evidence supporting their version of the event. [76] Notably, both the Appellant and Mr Alterator gave evidence that the Appellant phoned Mr Alterator after leaving the workplace following the interaction to advise him that she had found insects or ants in her water bottle and the filter at the work water station needed to be changed.45 The Appellant's evidence was that she made this phone call because she was prioritising her job responsibilities. This may be the case, however, it appears to be inconsistent with the evidence given about the 'ferocity' of Mr Alterator's earlier conduct. If the Appellant had been yelled at by her supervisor for 45 minutes, it is somewhat unlikely that the Appellant would then choose to speak to him less than an hour after she had left the workplace about a relatively minor matter. [77] The Appellant states that after the QR employee had entered the building, Mr Alterator stormed back into the mailroom and retrieved the three flags before leaving via the front door. The Appellant states that she called after him, stating, 'I should be back by next weekend' which was her normal shift.46 Although the Appellant states that she was sick and confused, this statement appears unusual in the context of abuse described by the Appellant. [78] The Appellant states that she was still onsite in the mailroom a long time after she would normally have departed. This may well be the case, but it is not evidence of unreasonable conduct on the part of Mr Alterator. [79] It seems to me that the interaction between Mr Alterator and the Appellant was tense and either or both parties may have raised their voices. The Appellant's view of Mr Alterator may have caused her to perceive Mr Alterator's conduct as being more aggressive than it actually was, particularly in circumstances in which the Appellant gave evidence of her frustration at the failure of the on-call employee to answer his phone. Whilst the Appellant's frustration was entirely understandable, it is likely to have impacted upon her perception of Mr Alterator's conduct. 44 T 2-36, ll 31-34. 45 T 1-32, ll 1-10; T 2-41, ll 4-7. 46 Appellant statement of facts and contentions dated 20 October 2020, page 3. -- 15 of 17 -- 16 [80] The Appellant's evidence that Mr Alterator yelled and screamed at her for 45 minutes is also inconsistent with the narrow subject content of the conversation. The Appellant's evidence was that, during this interaction, Mr Alterator told her the requirement to contact on-call staff is to continue ringing and referred to the bulletin before then mentioning her pain medication, his duty of care and the keys. The Appellant was unable to give clear evidence about the content of Mr Alterator's alleged 'barrage of verbal abuse' despite asserting that it continued from 5.40am to 6.25am. It is implausible that a conversation of this nature was held at such an intensity for a full 45 minutes. [81] When it was put to the Appellant in cross-examination that Mr Alterator had shown her the bulletin on the board regarding on-call procedures, she stated that 'he mentioned it that the bulletin was up on the board',47 however, in evidence in chief the Appellant describes the interaction as Mr Alterator 'was attacking me for not finding it on the board'.48 Those two statements convey quite inconsistent descriptions of the manner in which Mr Alterator referred to the bulletin on the board. [82] In my view, the circumstances in this matter are analogous to that of Svenson, where an employee perceives that they are being treated unreasonably in circumstances where they are not. The conclusion is supported by Dr Rogers' evidence that the Appellant's post- traumatic stress disorder may cause her to perceive that she was being verbally attacked when she was not, although I note Dr Rogers accepted the Appellant's version of this event as accurate. Dr Rogers was obviously not a witness to the interaction and provided his opinion after hearing the Appellant tell her version of what had occurred. [83] I do not consider the Appellant's conduct relating to the first and final warning to be relevant to this appeal. I do, however, accept that Mr Alterator's actions in informing management about the incident involving Ms Patel's son is likely to have contributed to the Appellant's general distain for Mr Alterator. This is particularly so given that the incident led to the Appellant being issued with a first and final warning. I note the Appellant's evidence was that 'I blamed him for telling him them… because he had no knowledge of the – he wasn't there. He didn’t see him. He didn't know anything about the – what had transpired'.49 [84] As outlined above, my impression of the Appellant was that she was an honest witness, however her dislike of Mr Alterator skewed her perception of the interaction. Mr Alterator's work diary outlined a pattern of instances involving conflict with the Appellant. The Appellant gave evidence that Mr Alterator 'wanted to do it his way, all the time'.50 The Appellant's manner in which she spoke about Mr Alterator indicated a clear dislike that pre-dated the interaction the subject of this appeal. I also note Dr Rogers' evidence that when he saw the Appellant ten days prior to the relevant incident, she was anxious regarding tensions at work with Mr Alterator. [85] I am satisfied that Mr Alterator's inquiry regarding the Appellant's health condition and discussion regarding the process of calling employees outside of work hours was reasonable management action. Ensuring that employees understand important procedures relating to their health and safety, such as contacting on-call staff, is an 47 T 1-25, l 5. 48 T 1-6, ll 20-21. 49 T 1-20, ll 41-44. 50 T 1-13, l 43. -- 16 of 17 -- 17 important management task. Similarly, it is not unreasonable for management to inquire as to the health condition of employees including medication administered during a shift. In the circumstances of this matter, it was reasonable action to protect the safety of both the employee and others in the workplace. [86] The Appellant contends that Mr Alterator undertook this conversation in an unreasonable way. Mr Alterator could ideally have managed these inquiries in a more methodical and ordered manner and at a time after the Appellant had returned to work. Management action does not, however, have to be perfect to be considered reasonable.51 Mr Alterator's actions were not perfect, however the Appellant did not produce sufficiently persuasive evidence to satisfy the onus on the balance of probabilities that his actions were taken in an unreasonable way. Conclusion [87] There is insufficient evidence that Mr Alterator conducted himself in the manner asserted by the Appellant. In circumstances in which the Appellant bears the onus to prove their case, the evidence produced by the Appellant in this matter does not reach that level. [88] For the reasons outlined above, I have determined that: (a) the Appellant sustained a personal injury in the form of an aggravation of a pre- existing psychological injury, namely, chronic complex post-traumatic stress disorder; (b) the Appellant's injury arose out of, or in the course of, her employment; (c) the Appellant's employment was the major significant contributing factor to her injury; and (d) the Appellant's injury is excluded by operation of s 32(5) of the Act as it arose as a result of the Appellant's expectations or perception of reasonable management action being taken against her. Orders [89] I make the following orders: 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply. 51 Ms SB [2014] FWC 2104. -- 17 of 17 --