Carr v Workers' Compensation Regulator [2022] QIRC 59

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carr v Workers' Compensation Regulator [2022] QIRC 059 PARTIES: Carr, Donna Noreen Appellant v Workers' Compensation Regulator Respondent CASE NO: WC/2021/4 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 1 March 2022 HEARING DATES: 6 October 2021 and 7 October 2021 DATES OF WRITTEN CLOSING SUBMISSIONS: MEMBER: HEARD AT: Appellant's submissions, 10 November 2021 Respondent's submissions, 14 December 2021 The Appellant did not file any reply submissions McLennan IC Brisbane ORDERS: 1. The appeal is allowed. 2. The decision of the Respondent of 4 December 2020, as set out in the correspondence dated 18 December 2020, is set aside. 3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted. -- 1 of 43 -- 2 4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – consideration of the date a psychological / psychiatric injury was sustained – whether the psychological /psychiatric injury arose out of or in the course of employment – whether employment was the major significant contributing factor to psychological / psychiatric injury – whether psychological / psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 545 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132 Allwood v Workers' Compensation Regulator [2017] QIRC 88 Blackwood v Mahaffey [2016] ICQ 10 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Davidson v Blackwood [2014] ICQ 008 Davis v Blackwood [2014] ICQ 009 Delaney v Q–COMP Review Unit (2005) 178 QGIG 197 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027 Kavanagh v Commonwealth (1960) 103 CLR 547 -- 2 of 43 -- 3 Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42 Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99 Prizeman v Q–COMP (2005) 180 QGIG 481 Q-COMP v Hohn (2008) 187 QGIG 139 Read v Workers' Compensation Regulator [2017] QIRC 072 Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 Sabo v Q–COMP [2010] ICQ 47 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097 State of Queensland (Queensland Health) v Q– Comp and Beverley Coyne (2003) 172 QGIG 1447 Tuesley v Workers' Compensation Regulator [2021] QIRC 071 Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028 WorkCover Queensland v Kehl (2002) 170 QGIG 93 Workers' Compensation Regulator v Langerak [2020] ICQ 2 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 APPEARANCES: Mr C D Watters of counsel instructed by My Work Rights Industrial Advocates for the Appellant. -- 3 of 43 -- 4 Ms L Willson of counsel, directly instructed by the Respondent. Reasons for Decision [1] Ms Donna Carr got her start in an entry-level administration position with Road Freight Services1 at age 23. [2] Over the next 18 years, Ms Carr progressed to a highly significant position with extensive responsibilities within the company. The scope of her duties as "office manager"2 "in charge of finances, admin teams, so forth"3 included: supervising the administration staff, liaising with the accountant, liaising with the bank, ordering office supplies, reconciliation, setting up the Bundy Clock system with regards to payroll,4 accounts receivable, accounts payable, superannuation, taxation, operations accounts and funds controller, trusts and properties.5 [3] Against the backdrop of several challenges and changes at work, Ms Carr sustained a psychological injury in 2019. [4] Ms Carr lives locally on the Gold Coast with her husband and two children. Claim details [5] Ms Carr lodged an application for compensation (the application) with WorkCover Queensland (WorkCover) on 12 December 2019.6 [6] Her claim was in respect of having sustained a psychological injury described as "stress psychological"7 to which she succumbed on 30 July 2019 due to "cumulative stress".8 [7] WorkCover rejected Ms Carr's application, concluding that her injury resulted from reasonable management action taken in a reasonable way. This had the effect of excluding Ms Carr's application pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').9 [8] Ms Carr applied to the Workers' Compensation Regulator ('the Regulator') to review that decision on 9 July 2020. [9] The Regulator confirmed WorkCover's decision in correspondence dated 18 December 2020. 1 SRV Management Pty Ltd, trading as Road Freight Services. 2 T 2 – 57, line 39. 3 T 2 – 45, line 33. 4 T 1 – 22, lines 12 – 13. 5 T 2 – 57 – T 2 – 59. 6 Regulator's Review Decision correspondence, 18 December 2020, 1. 7 Ibid. 8 Ibid. 9 Ibid 2. -- 4 of 43 -- 5 [10] Ms Carr subsequently filed this appeal against the Regulator's decision on 15 January 2021. What legal tests must be satisfied for Ms Carr's appeal to succeed? [11] The definition of injury, per the iteration of the Act at the relevant time, was (emphasis added): 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if - (a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or (b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. … (3) Injury includes the following – (ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation; … (4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsections (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 Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way- • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment. [12] An injury arises out of employment where there is a causal connection between the employment and the injury.10 [13] Additionally, the employment must be the major significant contributing factor in the case of a psychiatric or psychological disorder. [14] An appeal such as this is a hearing de novo.11 The Appellant bears the onus to prove, on the balance of probabilities, that she sustained an injury within the meaning of the Act. 10 Kavanagh v Commonwealth (1960) 103 CLR 547, 558–559. 11 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447. -- 5 of 43 -- 6 As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator: The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.12 What are the questions to be determined? [15] There is no dispute between the parties that: • Ms Carr was a worker within the meaning of s 11 of the Act, during the relevant period;13 and • Ms Carr sustained a personal injury in the form of a psychological condition,14 namely anxiety and depression.15 [16] The questions to be determined are: • the date of injury; • whether the personal injury arose out of, or in the course of, Ms Carr's employment; • if so, whether Ms Carr's employment was the major significant contributing factor to her psychiatric injury; and • if so, whether Ms Carr's psychological injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment. Summary of Findings [17] For the reasons that follow, I find that: • the date of Ms Carr's psychological injury was 30 July 2019; • Ms Carr's psychological injury did arise out of, or in the course of, her employment; • Ms Carr's employment was the major significant contributing factor to her psychological injury; and • Ms Carr's psychological disorder did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment. 12 [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 13 Respondent's Closing Submissions, 14 December 2021, 1 [3]. 14 Ibid. 15 Mention Transcript: T 1 – 3, lines 3 – 5. -- 6 of 43 -- 7 Evidence and submissions [18] Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only). [19] The Appellant's written closing submissions were filed on 10 November 2021. [20] The Respondent's written closing submissions were filed on 14 December 2021. [21] The Appellant did not file any written closing submissions in reply. [22] The evidence of the six witnesses and 17 Exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Workers' Compensation Regulator notice of appeal and other materials filed in this matter were considered in this Decision. I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided. Witnesses [23] The witnesses for the Appellant's case were: • Ms Donna Carr, the Appellant herself; • Ms Tracey Taylor, the Appellant's former work colleague; • Ms Margaret Powell, the Appellant's former work colleague; and • Dr John Chalk, a Consultant Psychiatrist. [24] The witnesses for the Respondent's case were: • Mrs Melanie Cosgrove, Business Manager, SRV Management Pty Ltd16 (formerly Fleet and Compliance Manager);17 and • Mr Errol Cosgrove, Company Director,18 SRV Management Pty Ltd.19 What date was Ms Carr's psychological injury sustained? [25] It is not disputed that Ms Carr has a psychological injury, namely anxiety and depression.20 16 Trading as Road Freight Services. 17 T 1 – 27, lines 19 – 23. 18 T 1 – 45, line 27. 19 Trading as Road Freight Services. 20 Mention Transcript: T 1 – 3, lines 3 – 5. -- 7 of 43 -- 8 [26] Specifically, Dr John Chalk's report dated 29 February 2020 assessed Ms Carr's psychological condition to be "an adjustment disorder with depressed and anxious mood."21 [27] The Appellant's position was that "the date of injury may have been as early as 30 July 2019 and / or 5 August 2019",22 though the "injury may have occurred as late as 10 October 2019".23 Ms Carr's injury was said to have occurred over time in the period between 30 July to 10 October 2019.24 [28] The Respondent's position is that the date of injury is 30 July 2019.25 [29] In determining the question of the date of injury, the following evidence is relevant: GP consultation – 30 July 2019 [30] On 30 July 2019, Ms Carr consulted her GP, Dr Peter Gold.26 [31] The GP records of that date described the reason for Ms Carr's visit as "Mental health consult". The notes indicated Ms Carr was "struggling with MH" and had described "unbearable" work pressures and dynamics. She was provided with a medical certificate. [32] The Appellant's Statement of Facts and Contentions referred to the GP consultation in these terms: …she was not coping with her current employment situation and the effect it is having on my and all parts of my life she had a breakdown.27 GP consultation – 5 August 2019 [33] On 5 August 2019, Ms Carr again consulted her GP, Dr Peter Gold.28 [34] The GP records of that date described the reason for Ms Carr's visit as "Mental health care plan". The notes stated the diagnosis of Ms Carr's psychological condition as "Anxiety / Depression." Ms Carr's self-reported symptoms were assessed as "moderately severe depression" and "severe anxiety." [35] At that time, Ms Carr was referred to Dr Jan Murgatroyd, Psychologist. Workers' compensation medical certificate [36] On 12 December 2019, a Queensland workers' compensation medical certificate was issued.29 That document certified that Ms Carr was first seen for the injury diagnosed as 21 Exhibit 2, 55. 22 Appellant's Closing Submissions, 10 November 2021, 2 [11]. 23 Ibid [12]; That is, the date of Ms Carr's last day at work. 24 Appellant's Closing Submissions, 10 November 2021, 3 [17]. 25 Respondent's Closing Submissions, 14 December 2021, 1 [8]. 26 Exhibit 2, 36. 27 Appellant's Statement of Facts and Contentions, 26 March 2021, 3 [q]. 28 Exhibit 2, 37. 29 Ibid 57. -- 8 of 43 -- 9 "work related stress disorder leading to anxiety / depression" on 30 July 2019. It further indicated that the "worker stated date of injury" to be 18 July 2019. WorkCover claim [37] On 12 December 2019, Ms Carr lodged a WorkCover claim.30 That claim nominated the date of injury to be 18 July 2019. Further, the document stated that the employer was advised about the injury on 31 July 2019. Dr Chalk's evidence [38] At the Hearing, Dr Chalk's evidence was that Ms Carr had advised him that she had a range of symptoms including difficulties with her motivation in July 2019. Dr Chalk opined that would be "consistent with the diagnosis of adjustment disorder."31 Ms Carr's evidence [39] At the Hearing, Ms Carr accepted that she went to the GP to seek help on 30 July 2019 because she was not coping.32 [40] Ms Carr described the "breakdown" she experienced at the GP consultation on 30 July 2019 in these terms: The work situation that I was in was affecting all parts of my life, and I wasn't coping with that, and I wasn't functioning as the - as a – as a person.33 Consideration [41] I consider the following points to be persuasive in finding 30 July 2019 to be the date of Ms Carr's psychological injury: • the Queensland workers' compensation medical certificate stated the date that Ms Carr was first seen for her psychological injury was 30 July 2019; • Dr Chalk's evidence was that Ms Carr's reported symptoms in July 2019 were "consistent with the diagnosis of adjustment disorder"; • Ms Carr's evidence was that she had a breakdown at the GP visit on 30 July 2019, where she went to seek help because she was not coping; • the GP notes of 30 July 2019 confirm the reason for Ms Carr's visit as "Mental health consult" and she was issued a medical certificate at that time; • when Ms Carr returned to her GP about a week later, she was issued with a Mental Health Care Plan, referred to a Psychologist and a diagnosis of "Anxiety / Depression" was recorded; and 30 Ibid 2. 31 T 1 – 16, lines 5 – 10. 32 T 1 – 87, line 30; T 1- 84, line 31. 33 T 1 – 84, lines 22 – 24. -- 9 of 43 -- 10 • the WorkCover claim submitted by Ms Carr nominated the date of injury to be about a fortnight earlier that 30 July 2019 – certainly not later than that date – though indicated that the employer was advised about the injury on 31 July 2019. Both those dates are proximate to 30 July 2019. [42] I recognise that both parties have cited the decision of Industrial Commissioner Hartigan in Tuesley v Workers' Compensation Regulator in that: It is accepted that an injury may occur over time. As such, the matters leading up to when the injury is sustained, albeit over a period of time may be considered relevant to the causation of that injury.34 [43] Notwithstanding Ms Carr's psychological injury did indeed appear to have "arisen over a period of time", it is clear on the evidence before me that by 30 July 2019 she was very unwell. [44] As observed above,35 the matters leading up to 30 July 2019 may be considered relevant to the causation of that injury. Put another way, the events said to have occurred after that date are not. [45] As Counsel for the Appellant explained "…the establishment of the injury date signifies a cut-off point, after which evidence of stressors contributing to the injury are no longer relevant."36 Did Ms Carr's personal injury arise out of, or in the course of, her employment? If so, was Ms Carr's employment the major significant contributing factor to her psychiatric injury? [46] In cross-examination, several potential stressors (other than work) were put to Dr Chalk in relation to the causation of Ms Carr's injury.37 Those included the passing of Ms Carr's father, a "cancer scare" and the fallout from becoming embarrassingly intoxicated at a work-related event in Melbourne. However, Dr Chalk maintained his view that it was "work" that was the significant factor to the development of Ms Carr's condition.38 [47] Psychological injuries sustained before 30 October 2019 are required to meet the test of "major significant contributing factor". That is the case here. [48] Dr Chalk opined in his report that the causation of Ms Carr's psychological injury was rooted in her work: …it would appear that the interaction with (Ms X),39 who was not following directions and not completely tasks, and the lack of support that she received from Errol in all this, was the crux of the 34 [2021] QIRC 071, [16]. 35 [42] of this Decision. 36 Appellant's Closing Submissions, 10 November 2021, 2 [9]. 37 T 1 – 17, lines 6 – 47; T 1 – 18, lines 1 – 30. 38 T 1 – 18, lines 23 – 30. 39 The name of the worker is not materially relevant to this Decision. -- 10 of 43 -- 11 matter. She felt that she was "shot down if I tried to have a discussion" and "I didn't understand the relationship between (Ms X) and Errol.40 … This 43 year old lady developed an adjustment disorder with depressed and anxious mood. This had been in the setting of difficulties in the workplace that had arisen over a period of time, although it would appear that there is some discrepancy between her account and the lengthy statement by her employer with regards to matters. It would certainly appear that Ms Carr felt increasingly harassed and marginalised in the workplace and at least, from her own account, there does not seem to have been any clear discussion of any change or delineation of duties. Whilst it would appear that work has been the only factor of significance leading to the development of her condition, in these circumstances, the issue of management action and the reasonableness or otherwise of that emerges.41 [49] That evidence led the Respondent to concede in closing that "…it is open to the Commission to find that the Appellant's injury arose out of employment in circumstances where employment was the major significant contributing factor."42 [50] That settled these two questions by agreement between the parties. Nominated Stressors in the relevant period [51] The Appellant's Statement of Facts and Contentions contains 9 nominated stressors said to have occurred prior to, or on, 30 July 2019.43 [52] The events contained in the table below are based closely on the relevant sections of the List of Stressors, supplemented in part by the contents of the Appellant's Statement of Facts and Contentions.44 Those matters will be considered further in this Decision. No. Date Title Description 1 November 2018 Meeting request Ms Carr requested an offsite meeting with Mr Errol Cosgrove and Mr Shane Basile regarding the affects the stress of her job was having on her health. In the subsequent meeting held on 2 November 2018, Ms Carr raised concerns about sub-standard cash flow, invoicing financial controls payroll, taxation and significant staff shortages and related under resourcing in the financial and administrative work units of the business. Ms Carr also discussed her relationship with SRV in relation to 'Expectation v Performance', 'Effort v Reward' and the affect the stress of her job was having on her health. 2 January 2019 – June 2019 Advising not keeping up nor coping with workload During this period, Ms Carr verbally and by way of physical demeanour communicated on many occasions to Mr Errol Cosgrove, Mr Shane Basile and Mr Brad Lane she was not keeping up nor coping with her workload. The plans put in place during the offsite meeting on 2 November 2018 were not being followed. 40 Exhibit 2, 50, lines 35 – 39. 41 Ibid 55, lines 153 – 164. 42 Respondent's Closing Submissions, 14 December 2021, 2 [21]. 43 Appellant's Statement of Facts and Contentions, 26 March 2021. 44 Ibid 1 – 3, 7 – 8. -- 11 of 43 -- 12 No. Date Title Description On 1 April 2019, a one-week onsite business review was conducted by an external accountant, Mr Richard Grumont, who advised Mr Cosgrove that Ms Carr's "responsibility level was unreasonable along with her workload." In late May 2019, Ms Carr expressed her concerns to Mr Cosgrove and Mr Basile over re-hiring of some staff she considered to have been poor performers. In June 2019, Ms X was engaged through Hays Recruitment to undertake Accounts Payable data entry. On 11 June 2019, Ms Y45 (former employee) was re- hired on a 9 week contract to undertake Accounts Receivable data entry. 3 8 July 2019 Uncommunicated changes made by Mr Errol Cosgrove Mr Errol Cosgrove made uncommunicated changes to the system of work and engages Ms X in bookkeeping / accounting tasks. Ms X appears to be promoted by Mr Cosgrove and commences issuing directive to administration staff which undermines Ms Carr's senior position to the staff within her team. Ms Carr starts to feel targeted, intimidated, harassed and bullied which caused her significant angst and stress. 4 17 July 2019 Email regarding concerns about Ms X Ms Carr sent an email to Mr Errol Cosgrove (cc Mr Shane Basile and Mr Brad Lane) regarding her concerns about the entire shift in the workplace which included direct contact between Mr Cosgrove and Ms X. 5 18 July 2019 Meeting with Mr Errol Cosgrove, Mr Shane Basile and Mrs Melanie Cosgrove Mr Errol Cosgrove yelled at Ms Carr "Are you coming?" which shocked Ms Carr as he had never yelled at her before. Mrs Melanie Cosgrove was also in attendance at the meeting. Ms Carr had understood the purpose of the meeting would be to discuss the contents of her email sent the previous day; however general business matters were discussed including the need for an in-house financial person to provide more assistance. Ms Carr tried to voice her views but was ignored and felt she was being talked at rather than talked with. 6 19 July 2019 Meeting with Mr Errol Cosgrove and Mrs Melanie Cosgrove Mr Errol Cosgrove and Mrs Melanie Cosgrove insisted on Ms Carr attending a meeting with them to discuss the email Ms Carr sent on 17 July 2019. During the meeting Mr Cosgrove verbally agrees that perhaps he did not deal with Ms X change in position correctly. Mrs Cosgrove advised Ms Carr "will need to find a way to work with (Ms X)." 7 23 July 2019 – 26 July 2019 Melbourne Trip Ms Carr felt compelled to take the trip to Melbourne and attend a work-related dinner with Ms X. Due to feeling stressed and anxious from the situation she felt forced into, it led to Ms Carr overindulging while drinking alcohol at the work-related dinner. 45 The name of the worker is not materially relevant to this Decision. -- 12 of 43 -- 13 No. Date Title Description Ms Carr spent 4 days at the Melbourne office with Ms X, who travelled on the same flight and car from the airport to the office. 8 26 July 2019 Ms X's disclosure Ms X disclosed to Ms Carr her knowledge of specific content of Ms Carr's email dated 17 July 2019. This made Ms Carr uncomfortable and anxious, as that information should have remained confidential. 9 30 July 2019 Breakdown at GP's office Ms Carr attended Our Home Medical at 8 pm and upon advising that she was not coping with her current employment situation she had a breakdown. Dr Peter Gold issued a medical certificate from 31 July 2019 to 2 August 2019. [53] The remaining 14 nominated events in the List of Stressors said to have occurred after 30 July 2019 cannot have caused the injury on that date.46 As those will not be considered further in this Decision, I have not repeated them here. [54] The Respondent has submitted that the Appellant is bound by their case specified. Did Ms Carr's psychological injury arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment? [55] A psychiatric or psychological disorder is not taken to be an 'injury' under the Act where it arises out of "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment". [56] The definition of injury, per the iteration of the Act at the relevant time, provides for that exclusion as follows (emphasis added): 32 Meaning of injury … (5) Despite subsections (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 Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way- • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment. 46 Appellant's Statement of Facts and Contentions, 26 March 2021, 9 – 10. -- 13 of 43 -- 14 "Reasonable management action taken in a reasonable way" [57] Justice Martin has observed in Davis v Blackwood that: 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 consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.47 [58] In Blackwood v Mahaffey, Justice Martin further said that: The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied. In the cases decided in this Court, any attempt to provide some type of formula or application of dominant cause has been rejected. Section 32 must be applied in light of the evidence accepted by the Commission. If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms a conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the workers favour must follow.48 [59] Deputy President Merrell explained in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator that:49 The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental.50 Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.51 Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant.52 An imperfection in management action may not justify the characterisation of the management action as unreasonable.53 Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable. Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.54 It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.55 However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury.56 In an appropriate case, that consideration may require a global view of the 47 [2014] ICQ 009, [47]. 48 [2016] ICQ 10, [57]. 49 [2020] QIRC 097, [25] – [28]. 50 Sabo v Q–COMP [2010] ICQ 47, [21]. 51 Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [65] citing Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 47 – 48. 52 Delaney v Q–COMP Review Unit (2005) 178 QGIG 197, 197. 53 Q–COMP v Hohn (2008) 187 QGIG 139, 146. 54 WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94. 55 Prizeman v Q–COMP (2005) 180 QGIG 481, 481. 56 Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028, [41]. -- 14 of 43 -- 15 management action to determine if the action was reasonable.57 However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.58 [60] His Honour Martin J observed in Workers' Compensation Regulator v Langerak (emphasis added): The ultimate question under s 32(5)(a) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment. The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.59 "Management action" [61] With respect to defining "management action", his Honour DP O'Connor (as he then was) referred to his earlier decision in Read v Workers' Compensation Regulator where he explained that: Management action is not defined in the Workers' Compensation Act 2003. Indeed, very little has been written in this jurisdiction to assist in the interpretation of the expression "management action".60 [62] In Allwood v Workers' Compensation Regulator, his Honour further stated that (emphasis added): 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.61 [63] With respect to the consideration of the expression at [57] above, I find that Stressors 1 – 8 in paragraph [52] above each involved allegations of events that would constitute the exercise of 'management action'. That is, it is clear that each of those particular events comprised "actions undertaken when managing the worker's employment". "Arising in the course of" [64] It has been said that "It has generally been accepted that these words do not require a causative element but a temporal one…"62 [65] Ms Carr worked at Road Freight Services63 for 18 years. The nine stressors nominated by Ms Carr were each said to have occurred within the period of her employment. [66] The parties have accepted the evidence of Dr Chalk as to the causation of Ms Carr's psychological injury, being "work". 57 Ibid [42]. 58 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027, [15]. 59 [2020] ICQ 2, 18 [86]. 60 [2017] QIRC 072, 5 [8]. 61 [2017] QIRC 88, [60]. 62 LexisNexis, Industrial Law Queensland, Service 119, 110, 116 [71,005]. 63 SRV Management Pty Ltd, trading as Road Freight Services. -- 15 of 43 -- 16 [67] The events alleged in Ms Carr's nominated stressors 1 - 8 would each involve the exercise of management action. [68] Therefore, I am satisfied that Ms Carr's psychological injury "arose in the course of" "management action" "in connection with her employment". [69] To satisfy this test, it is sufficient for Ms Carr to prove that the psychological injury either arose "out of" or "in the course of" reasonable management action taken in a reasonable way. It need not be both. [70] Though for the sake of completeness, I will proceed to consider the second limb of the test below. "Arising out of" [71] The phrase "arising out of" involves a causal or consequential relationship between the management action and the injury, but does not require a direct or proximate relationship.64 [72] The events alleged in Ms Carr's nominated stressors 1 - 8 would each involve the exercise of management action. [73] Therefore, I am also satisfied that Ms Carr's psychological injury "arose out of" "management action" "in connection with her employment". Was the management action "reasonable" and "taken in a reasonable way"? [74] Having established the 9 nominated events said to have occurred in the relevant period, my task is now to consider whether those particular circumstances can be substantiated on the evidence before me. In other words, did those events occur as Ms Carr says they did? [75] For each of the 9 nominated events that I find to be substantiated on the balance of probabilities, my task is then to consider for each whether or not they constituted "reasonable management action taken in a reasonable way". Consideration – Nominated Stressor 1 No. Date Title Description 1 November 2018 Meeting request Ms Carr requested an offsite meeting with Mr Errol Cosgrove and Mr Shane Basile regarding the affects the stress of her job was having on her health. In the subsequent meeting held on 2 November 2018, Ms Carr raised concerns about sub-standard cash flow, invoicing financial controls payroll, taxation and significant staff shortages and related under resourcing in the financial and administrative work units of the business. Ms Carr also discussed her relationship with SRV in 64 Avis v WorkCover Queensland [2000] QIC 67; as cited in the Regulator's Review Decision, 18 December 2020, 15. -- 16 of 43 -- 17 No. Date Title Description relation to 'Expectation v Performance', 'Effort v Reward' and the affect the stress of her job was having on her health. [76] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.65 [77] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [78] With respect to this particular nominated stressor, I have earlier found that it would have been characterised as 'management action'. That is accepted by the Respondent.66 [79] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". Ms Carr [80] At the Hearing, Ms Carr said that a meeting occurred on 2 November 2018 in which she raised a number of concerns about "frivolous spending", "juggling cashflow", wages payments and bills.67 [81] Ms Carr complained there was no formal outcome of that meeting as there was no "action plan or anything advised to myself."68 [82] Although Ms Carr recognised she was thanked for her loyalty and dedication in raising the matters at the meeting and told that it was appreciated.69 [83] Ms Carr spoke about the new approach taken in early 2019: So upon the return to work in 2019, it appeared to be that Errol Cosgrove and Melanie Cosgrove returned to the office with a – a view of this is how they would like things to be done. And they were going to make some changes."70 She added that: In the ensuing discussions that I had, I listened to the changes that they wanted to make, and I said, you know, that's – if that's what it is – that's the changes that you want to make, that's what it is.71 [84] In further conversation in January 2019,72 Mr and Mrs Cosgrove outlined their plans to Ms Carr. Ms Carr's response was that she didn't feel they understood the processes involved, considered their ideas would not work and that they were trying to push things 65 Appellant's Statement of Facts and Contentions, 26 March 2021, 1, 7. 66 Respondent's Closing Submissions, 14 December 2021, 3 [32]. 67 T 1 – 23 – T 1 – 26. 68 T 1 – 27, lines 4 – 5; Respondent's Closing Submissions, 14 December 2021, 3 [30]. 69 T 1 – 27, lines 2 – 11. 70 Ibid 20 – 23. 71 Ibid 23 – 25. 72 Ibid 33. -- 17 of 43 -- 18 through too quickly.73 Ms Carr accepted that the plans were ultimately initiated and she "had to find a way to try to deal with that."74 [85] Ms Carr's oral evidence was that she let Mr Cosgrove and Mr Basile75 know of "some concerns that I was having, and I guess let them know how I was feeling. How I saw things, and the effect it was having on me."76 That aligns with her account of the meeting in the List of Stressors, which included reference to discussion at the meeting about "the effect the stress of her job was having on her health". Medical evidence [86] The medical evidence does not address the effect those concerns were having on Ms Carr, in the lead up to the 2 November 2018 meeting. [87] The GP records available commence on 30 July 2019.77 [88] Dr Chalk's report stated: Essentially, Ms Carr described having had difficulties in the workplace over a period of time and the difficulties appear to have begun when a temporary worker, (Ms X), came to work for them.78 I note that Ms X did not commence until June 2019.79 Mr Cosgrove [89] Mr Cosgrove did not recall the 2 November 2018 meeting precisely but accepted that it could have occurred on that date.80 [90] Counsel for the Appellant put to Mr Cosgrove that at the 2 November 2018 meeting, Ms Carr told him she was not coping and that the situation was affecting her health. Mr Cosgrove's response was that he did not deny that, but could not recall it.81 Finding [91] I believe that a meeting occurred on 2 November 2018 in which Ms Carr raised a number of concerns. [92] I accept that meeting included Ms Carr sharing "the effect it was having on me" with Mr Cosgrove and Mr Basile. Ms Carr clearly recalls that was the case, whilst Mr Cosgrove did not deny it were so. In my view, that would also account for the expressions of appreciation made to her at that time (although I have already observed that the GP notes 73 Ibid 25 – 47. 74 T 1 – 28, lines 1 – 5. 75 The company accountant. 76 T 1 – 23, lines 38 – 40. 77 Exhibit 2, 36. 78 Ibid 49. 79 Appellant's Statement of Facts and Contentions, 26 March 2021, 2. 80 T 1 – 45, line 46. 81 T 2 – 68, lines 26 – 33. -- 18 of 43 -- 19 available do not address claims of the effect those concerns were having on Ms Carr, in the lead up to the 2 November 2018 meeting). [93] While Ms Carr has stated that there was no "formal" action plan arising from the meeting, she did nonetheless also complain that "The plans put in place during the offsite meeting on 2 November 2018 were not being followed" in the Appellant's Statement of Facts and Contentions.82 Ms Carr also gave evidence of a new approach signalled by Mr and Mrs Cosgrove upon their return to work in January 2019. [94] It appears most likely that the couple reflected on what they had heard from Ms Carr over the Christmas break and decided to make some changes in the new year. [95] The evidence shows that a series of initiatives were authorised in the coming months aimed at addressing the issues raised by Ms Carr at the 2 November 2018 meeting, including implementing an alternative payroll solution to remove that workload and responsibility from her, recruiting additional staff, commissioning an independent review of the business and engaging with Ms Carr about relinquishing her exclusive access to the company's authorities. [96] Ms Carr said that those plans "with regards to the administration"83 were shared with her in ensuing discussions. And whilst Ms Carr raised some concerns about whether all of the changes outlined would work in practice, she accepted that if "that's the changes that you want to make, that's what it is." [97] Essentially, Ms Carr raised a range of matters on 2 November 2018, said it was having an effect on her and received expressions of appreciation from her employer. Mr and Mrs Cosgrove appeared to have considered what Ms Carr had said, returning to work in the new year planning to make some changes. The timing of such initiatives makes it most likely to be in response to her concerns. Ms Carr noted that those plans relevant to her work area were shared with her in "ensuing discussions". While Ms Carr's advice was that some of those plans would not work in practice, she ultimately accepted that if that is "the changes that you want to make, that's what it is." [98] For those reasons, I consider the employer's response outlined in nominated stressor 1 constitute "reasonable management action taken in a reasonable way." However, my consideration of the external review contained in the section below explains that such workload and work intensity over a lengthy period, leading to Ms Carr raising the matter with her employer, does not constitute reasonable management action taken in a reasonable way. Consideration – Nominated Stressor 2 No. Date Title Description 2 January 2019 – June 2019 Advising not keeping up nor coping with workload During this period, Ms Carr verbally and by way of physical demeanour communicated on many occasions to Mr Errol Cosgrove, Mr Shane Basile and Mr Brad Lane she was not keeping up nor coping with her workload. 82 Filed 26 March 2021, 1. 83 T 1 – 28, line 4. -- 19 of 43 -- 20 No. Date Title Description The plans put in place during the offsite meeting on 2 November 2018 were not being followed. On 1 April 2019, a one-week onsite business review was conducted by an external accountant, Mr Richard Grumont, who advised Mr Cosgrove that Ms Carr's "responsibility level was unreasonable along with her workload." In late May 2019, Ms Carr expressed her concerns to Mr Cosgrove and Mr Basile over re-hiring of some staff she considered to have been poor performers. In June 2019, Ms X was engaged through Hays Recruitment to undertake Accounts Payable data entry. On 11 June 2019, Ms Y84 (former employee) was re-hired on a 9 week contract to undertake Accounts Receivable data entry. [99] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.85 [100] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [101] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepts that the implementation of changes is management action.86 [102] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". Ms Carr verbally and by way of physical demeanour communicated to Mr Errol Cosgrove, Mr Shane Basile and Mr Brad Lane that she was not coping with her workload [103] I have earlier considered that Mr and Mrs Cosgrove returned to work in early 2019 set to implement a range of initiatives, in response to Ms Carr's expressed concerns in the meeting on 2 November 2018. I have found the changes pertinent to Ms Carr's area were raised with her in ensuing discussions. While Ms Carr did not consider that Mr and Mrs Cosgrove understood all the processes involved and she believed their proposed changes would not work, Ms Carr's evidence was that she accepted that "if that's what it is – that's the changes you want to make, that's what it is."87 84 The name of the worker is not materially relevant to this Decision/ 85 Appellant's Statement of Facts and Contentions, 26 March 2021, 1 – 2, 7. 86 Respondent's Closing Submissions, 14 December 2021, 5 [45]. 87 T 1 – 27, lines 20 – 30. -- 20 of 43 -- 21 [104] At the Hearing, Ms Carr's evidence was also that she said "I feel like you're steamrolling me, that you're trying to push these things through too quickly."88 The person(s) to whom Ms Carr directed those comments was not directly stated, but I presume made to Mr and Mrs Cosgrove as part of the "ensuing discussions" about the changes they had outlined. [105] While Ms Carr expressed the view at the Hearing that "They looked to roll them out, and I had to find a way to try and deal with that,"89 I can accept that was certainly an expression of how she felt about it. However, it was not something she asserted was communicated at the time either "verbally and by way of physical demeanour." [106] Mr Cosgrove expressly denied that Ms Carr told him she was not coping.90 [107] At the Hearing, Ms Carr also stated that by June 2019 "It was becoming apparently obvious that I was not keeping up with the cashflow and expenses".91 Ms Carr clarified that it was: Obvious to my work colleagues, because they would come and say, "are you alright? What can we – is there anything we can do to help?" To the point where the national sales and development manager was in Mister – so Errol Cosgrove's office and I had been called in to look at something on his computer… … And so Bradley Lane, he said to me, like "what's up?" You know, su – what's going on? I said, "I don't even have the words to tell you what's going on. It's not – you know – it's just – I don't have the words to tell you." And I couldn't even tell him what I needed to say, that it was too much and those kinds of things. And from there, he took the initiative to make inquiries about engaging a temp.92 [108] Ms Carr went on to explain that the conversation about engaging a temp occurred between she, Mr Lane and Mr Cosgrove right there in the latter's office. Immediately, "It was determined that temp would be supplied. Mr Lane organised that…And I was advised of the date – whatever the date may be – let's say Monday, that a temp from Hays Recruitment would be starting…And they were to work where, I guess, I saw fit, which happened to be accounts payable."93 On the basis of Ms Carr's evidence, it appears to me that even on the very little she did say to Mr Lane, action was taken not only reasonably, but with commendable alacrity. [109] It may indeed be true that Ms Carr's work colleagues noticed she was increasingly under the pump and offered assistance. However, what those administration team members working in close quarters with Ms Carr, all day every day, may have noticed is conceivably different to what she may have chosen to display to Mr Errol Cosgrove, Mr Shane Basile and Mr Brad Lane. I cannot accept that because Ms Carr's stated distress at that time was said to be clear to her subordinates, then it must follow that it was also clear to her employer, the company accountant and national sales and development manager. [110] I would observe that Mr and Mrs Cosgrove were in an unenviable position at this point. 88 Ibid 35. 89 T 1 – 28, line 5. 90 T 2 – 61, line 39. 91 T 1 – 30 ,lines 2 – 3. 92 Ibid 7 – 20. 93 Ibid 28 – 35. -- 21 of 43 -- 22 Ms Carr had expressed a range of concerns to Mr Cosgrove and Mr Basile in November 2018. After some reflection over the Christmas break, Mr and Mrs Cosgrove had clearly decided to take action on those stated concerns - and had returned in the new year prepared to do so. Having brought Ms Carr in on their new initiatives, they were then apparently told that they were acting too quickly. In my view, Mr and Mrs Cosgrove were being responsive to the matters raised by Ms Carr in the 2 November 2018 meeting. Those actions were reasonable. I note that elsewhere Ms Carr's contradictory complaint was that her employer was not taking any action at all. Both positions cannot be correct. Plans put in place during the offsite meeting on 2 November 2018 were not being followed [111] At the Hearing, Ms Carr's evidence was that there was no formal outcome of that meeting as there was no "action plan or anything advised to myself."94 [112] That assertion would appear to contradict this particular complaint, contained in her earlier Statement of Facts and Contentions. If there was no plan on the one hand, it does not make sense to complain it was not being followed on the other. [113] If instead what Ms Carr means by this inclusion is that the entirety of initiatives discussed with her in early 2019 were not all successfully implemented or determined to be progressed, they are matters open to Mr Cosgrove to decide. That is not unreasonable in any sense. [114] However, I also note that Ms Carr's evidence was that the plan was ultimately initiated.95 [115] Further consideration of this matter is contained above at paragraphs [91] - [98]. [116] Ms Carr's complaint on this point is not borne out. Conduct of onsite business review [117] From 1 - 5 April 2019, a SRV Finance Structure Review was conducted by an external accountant, Mr Richard Grumont. That included the preparation of a report with findings and recommendations.96 [118] The report stated that Ms Carr was "stretched" and suggested further personnel resources were required to fulfil the current scope of her responsibilities.97 [119] It is not a requirement that the report be provided to Ms Carr or shared with her in its entirety. That is not in itself an unreasonable management action. 94 T 1 – 27, lines 4 – 5; Respondent's Closing Submissions, 14 December 2021, 3 [30]. 95 T 1 – 28, line 1. 96 Exhibit 16. 97 Ibid 2. -- 22 of 43 -- 23 [120] Mr Cosgrove's evidence was that the review was commissioned because "…I spoke to my financial broker, and we suggested – and he suggested it was probably about time to look at an in-house accountant."98 [121] Mr Cosgrove expressly denied the review was conducted in response to Ms Carr's claim that she told he and Mr Basile that she was not coping in their meeting on 2 November 2018.99 [122] The Appellant argued in closing submissions that "…the contents of this report further support her claim that what was occurring in the workplace was the major significant contributing factor to her injury."100 As previously noted, the Respondent had since conceded that work was the major significant contributing factor to Ms Carr's injury. The contest in this matter though is whether that injury was excluded under s 32(5) of the Act. [123] I am mindful that Dr Chalk's report contains a recount of the history taken from Ms Carr, in which she "…described having had difficulties in the workplace over a period of time and the difficulties appear to have begun when a temporary worker, (Ms X), came to work for them."101 However, the history Ms Carr provided to Dr Chalk could not have been entirely accurate, given her upbeat email to Mr Cosgrove commending Ms X's work dated 17 June 2019.102 If that were to be accepted, it would appear to place the onset of Ms Carr's psychological condition from 18 June 2019 (at the earliest) meaning the injury Dr Chalk said occurred "over a period of time" was merely about 6 weeks (at most) ahead of 30 July 2019.103 [124] Dr Chalk's report also noted that "These difficulties occurred against a background where apparently a number of people left the workplace and that two people in her area were not replaced and this seems to have placed everyone under the pump." References to reduced staffing were also made in the SRV Finance Structure Review report, which noted a couple of roles vacant due to staff departures,104 with a couple of further roles being occupied by those "being trained to take over the process".105 [125] For the sake of completeness, Dr Chalk further noted "However, whilst those difficulties were as noted, it would appear that the interaction with (Ms X), who was not following directions and not completely tasks, and the lack of support she received from Errol in all this, was the crux of the matter."106 [126] Foundationally, I consider the imposition of an unattainable level of workload and work intensity on a worker, in the absence of adequate support and resources to the job, to be unreasonable management action. 98 T 2 – 61, lines 42 – 44. 99 Ibid 36 – 39. 100 Appellant's Closing Submissions, 10 November 2021, 5 [30]. 101 Exhibit 2, 49. 102 Exhibit 12. 103 30 July 2019 is the date of injury. 104 Exhibit 16, 2, 2(a), 3(a). 105 Ibid 2, 2(b), 3(b). 106 Exhibit 2, 50. -- 23 of 43 -- 24 [127] At paragraph [92] above, I have earlier found that the 2 November 2018 meeting included Ms Carr sharing "the effect it was having on me" with Mr Cosgrove and Mr Basile. In response, a series of initiatives were devised in early 2019. [128] For at least over the last four years, Mr Cosgrove accepted that Ms Carr's responsibilities in his $25 million business was that of "office manager"107 "in charge of finances, admin teams, so forth".108 That included banking, accounts receivable, accounts payable, superannuation, taxation, operations accounts and funds controller, trusts, properties.109 [129] Mrs Cosgrove's evidence with respect to Ms Carr's role was that it was highly significant to the company, with extensive responsibilities. Mrs Cosgrove said: …her involvement was integral with the operating system that we had which was Freight2020. This is where we were able to create invoices for the work done. We were also able to have our whole accounts – AR/AP – run through that and operations run through that. So there was only a set amount of logins and we were sharing logins etcetera…110 … Even Errol wasn't able to…access Westpac…The daily operating of the business, payroll, asset, trusts, the houses, properties. Yeah. That did everything.111 [130] Mr Cosgrove's evidence was that he "went in everyday and just oversaw the - the goings on in the business".112 [131] As that was the case, it should have been evident to someone of Mr Cosgrove's business acumen and experience that the level of resourcing allocated to the 'finance and administration' department of his company was too lean to adequately administer his company's growing success. Too much was being asked of Ms Carr over an extended period of time. [132] It came to pass that Mr Cosgrove's expectation that Ms Carr continue to do more with less was not sustainable indefinitely. [133] In my view, the scene was set for the onset of Ms Carr's psychological injury that occurred "over a period of time". [134] I do not consider foisting that amount of workload, work pressure and responsibility on Ms Carr over a significant period to be "reasonable" management action. Recruitment of additional staff [135] In light of those findings, I find it that it was reasonable management action to recruit additional staff in May and June 2019. [136] I note Ms Carr's complaint that she had expressed concerns to Mr Cosgrove and Mr Basile over re-hiring of some staff she considered to have been poor performers in late 107 T 2 – 57, line 39. 108 T 2 – 45, line 33. 109 T 2 – 57 – T 2 – 59. 110 T 2 – 28, lines 17 – 21. 111 Ibid 38 – 43. 112 T 2 – 45, line 30. -- 24 of 43 -- 25 May 2019. It may well have been the case that the urgency of the staffing need was so clearly apparent by that stage that it overshadowed Ms Carr's concerns. In any event, it was not unreasonable for the employer to make such hiring decisions. Finding [137] For the reasons explained above, I do not consider the workload, work pressure and responsibility on Ms Carr's shoulders over a significant period to be "reasonable" management action. [138] For the sake of completeness, I do not consider the context of Mrs Cosgrove's comments that "it was probably a bit negligent having one person in control of so much" to be an admission as such. Rather I believe Mrs Cosgrove recognised the inherent risks of that course to the company, rather than to Ms Carr. Her observations proved apposite in this case. Consideration – Nominated Stressor 3 No. Date Title Description 3 8 July 2019 Uncommunicated changes made by Mr Errol Cosgrove Mr Errol Cosgrove made uncommunicated changes to the system of work and engages Ms X in bookkeeping / accounting tasks. Ms X appears to be promoted by Mr Cosgrove and commences issuing directive to administration staff which undermines Ms Carr's senior position to the staff within her team. Ms Carr starts to feel targeted, intimidated, harassed and bullied which caused her significant angst and stress. [139] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.113 [140] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [141] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepts that the changes made by Mr Cosgrove and communicated to Ms Carr via email constituted management action.114 [142] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". [143] For the reasons considered above, Mr Cosgrove hired additional staff and I have found that to be reasonable. 113 Appellant's Statement of Facts and Contentions, 26 March 2021, 2, 7. 114 Respondent's Closing Submissions, 14 December 2021, 5 [52]. -- 25 of 43 -- 26 [144] It follows that the new staff were allocated work tasks and responsibilities. At first, Ms X was tasked with performing data entry duties in Accounts Payable. [145] When the administration team members moved to a temporary donga office on or about 1 July 2019 whilst renovations were underway, Ms Carr observed Ms X was often absent from her desk and upon her return conveyed Mr Cosgrove's directions to various staff members. As office manager and supervisor of the administration team, such directions would previously have been issued by Ms Carr in that capacity. Ms Carr also noted that Ms X was permitted to use her personal mobile phone at work. A consideration not extended to other workers. That too was a source of irritation. As Dr Chalk had put it, "the crux of the matter."115 [146] At the Hearing, Ms Carr explained that: There seems to be preference given to (Ms X), ie, she has her personal phone. No one else is afforded that luxury. We – you know, spend time at our desk. I feel like someone that's been – for want of a better time description, with – doing a data entry job that's been there five minutes, is given all the freedom in the world, a – where people that have supported and been loyal to the company are brushed aside.116 [147] On the evidence before me, it appeared Ms X had been granted preferential treatment with respect to access to her personal mobile phone during work time. That constituted inconsistent treatment between employees. That was certainly impolitic in an office environment. The resultant ill will is self-evident. However, I would stop short of calling that unreasonable management action. Ms X may indeed have sought and been granted permission from her employer for sound reasons that are not in evidence. [148] While those matters did cause Ms Carr "significant angst and stress" as she contends in her Statement of Facts and Contentions and as she relayed to Dr Chalk, she was not "targeted, intimidated, harassed and bullied" in my view. I agree with the Respondent's submissions that Exhibit 3 does not evidence any such targeting of Ms Carr – rather it evidences Ms Carr's irritation at that time. [149] Ms Carr's evidence was that "Mid-July, I receive an email from Errol Cosgrove telling me that the data entry job is finished, and that (Ms X) would start to look at some other things, and I was to facilitate her doing these things."117 [150] Mr Cosgrove's evidence at the Hearing was also that he had met with Ms Carr and Ms X off-site at a local coffee shop where he had "said to (Ms Carr) that, you know, like, I'm wanting to bring (Ms X) into this – this sort of role to make things better, and yes. So it was agreed upon that – that was it. She would start doing – or taking that accounting – or bookkeeping stuff off (Ms Carr)."118 [151] At the very least, that email of mid-July outlined a change in work arrangements, appropriately communicated by Mr Cosgrove to Ms Carr (albeit a little belatedly perhaps). As such, I consider this was a reasonable management action, notwithstanding that by that time it was clearly most unwelcome news received by the recipient, Ms Carr. 115 Exhibit 2, 50. 116 T 1 – 33, lines 40 – 45. 117 Ibid 32 – 34. 118 T 1 – 49, lines 33 – 38. -- 26 of 43 -- 27 Finding [152] For those reasons, I consider the matters outlined in nominated stressor 3 constitute "reasonable management action taken in a reasonable way." Consideration – Nominated Stressor 4 No. Date Title Description 4 17 July 2019 Email regarding concerns about Ms X Ms Carr sent an email to Mr Errol Cosgrove (cc Mr Shane Basile and Mr Brad Lane) regarding her concerns about the entire shift in the workplace which included direct contact between Mr Cosgrove and Ms X. [153] The above description of the nominated stressor is drawn from the Appellant's List of Stressors.119 [154] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [155] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepts that the contents of that 17 July 2019 email contains Ms Carr's complaints of management action (and lack thereof, in some cases). Further the Respondent accepts that the subsequent meetings held on 19 and 19 July 2019 (following her email), in order for Mr and Mrs Cosgrove to obtain information to access the various accounts and authorities from Ms Carr also constituted management action.120 [156] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". [157] The email from Ms Carr to Mr Cosgrove, copying in Mr Basile, dated 17 July 2019 is Exhibit 3 in this case. That document contained Ms Carr's assessment of Ms X's performance and suitability, her objection to the special treatment of Ms X regarding her personal mobile phone usage, absences from her desk on "secret squirrel business"121 and non-compliance with established reporting lines. Ms Carr also articulated feelings of being sidelined, both in her direct relationship with Mr Cosgrove and in the company's established reporting structure. [158] While the email has been nominated as a stressor, it is presumed rather what is meant is the subject matter contained therein and the response received to it. [159] It has been submitted that Ms Carr's email was sent in the spirit of feeling "so anxious and disturbed" and it should be characterised as a "complaint about workplace injustice", the point being made that Ms Carr was so deeply affected by those circumstances that 119 Appellant's Statement of Facts and Contentions, 26 March 2021, 7. 120 Respondent's Closing Submissions, 14 December 2021, 7, [67], [71], [76]. 121 T 1 – 32, line 18. -- 27 of 43 -- 28 she was prepared to end her employment with the company after 18 years' service if that was what her employer wanted.122 [160] I do not agree with that characterisation. The tone of that email instead appears to me to be an expression of Ms Carr's indignation and frustration, even anger. She perceived that her position was being usurped by the newly minted Ms X and was resisting that turn of fortunes. Ms Carr's email contains an unmistakable choice close – either Mr Cosgrove agrees to direct Ms X to "fall back into line under me and take direction the same as the other girls or be replaced and no longer part of the administration team I am responsible for" or in the event that he will not do so, "we can work out a transition and exit strategy for me".123 [161] Mr Cosgrove took it as a threat.124 A little more circumspect, Mrs Cosgrove saw it as "emotionally fuelled" and "a vent".125 In my view, the ultimatum issued could not be misunderstood. Ms Carr was reminding Mr and Mrs Cosgrove that they needed her and that she was prepared to walk. [162] Further evidence of Ms Carr's mindset is her text exchange with a colleague 6 minutes after sending the email. Ms Carr asks "Shall I go home now b4 wages are processed?", to which the colleague replies "That would get a point across."126 That is also persuasive in determining Ms Carr's intent in concluding the email as she did. [163] Two meetings followed this epistle. One the following day on 18 July 2019 and another the day after that on 19 July 2019. Mr and Mrs Cosgrove's stated agenda at those meetings was two-fold – to assure Ms Carr that they wanted her to both remain with the company and to "handover as much stuff, or information that she could."127 [164] Further consideration of the "reasonableness" of the content and conduct of those meetings are addressed in the sections that follow. Finding [165] Given the content and tone of the email fired off by Ms Carr, Mr and Mrs Cosgrove's responses as outlined in nominated stressor 4 – and the scheduling of two subsequent meetings - constitute "reasonable management action taken in a reasonable way." Consideration – Nominated Stressor 5 No. Date Title Description 5 18 July 2019 Meeting with Mr Errol Cosgrove, Mr Shane Basile and Mrs Melanie Cosgrove Mr Errol Cosgrove yelled at Ms Carr "Are you coming?" which shocked Ms Carr as he had never yelled at her before. Mrs Melanie Cosgrove was also in attendance at the meeting. Ms Carr had understood the purpose of the meeting would be to discuss the contents of her email sent the previous day; however 122 Appellant's Closing Submissions, 10 November 2021, 5, [31]. 123 Exhibit 3. 124 T 2 – 66, lines 5 – 9. 125 T 1 – 30, lines 38 – 40. 126 Exhibit 10. 127 T 2 – 68, lines 17 – 20. -- 28 of 43 -- 29 No. Date Title Description general business matters were discussed including the need for an in-house financial person to provide more assistance. Ms Carr tried to voice her views but was ignored and felt she was being talked at rather than talked with. [166] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.128 [167] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [168] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepts that this is management action.129 [169] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". Mr Cosgrove yelled at Ms Carr "Are you coming?" [170] Ms Carr's complaint was that Mr Cosgrove yelled "Are you coming?" at her, as he departed for the off-site meeting on 18 July 2019. [171] In cross-examination, Ms Carr did not accept the proposition that Mr Cosgrove just asked her if she was coming in a loud voice.130 Ms Carr denied that was the case even though she was "speaking with the staff, finishing that conversation, and then I believe I left shortly thereafter, and I advised that I was not going to be there on time."131 Ms Carr did accept that perhaps Mr Cosgrove was saying that they were going to be late if she didn't leave now, agreeing "Yes. I wrapped up what I was doing, and I left shortly thereafter."132 Notwithstanding that, Ms Carr's evidence was that she had "…formed the view that he was looking for confirmation that I was going to go."133 [172] It is quite probable that both were true. Mr Cosgrove may have been signalling it was time to go and also checking that Ms Carr was in fact planning to do so. Given Ms Carr's reference to "…the off-site meeting that I was directed to attend" and her nomination of the 18 July 2019 as the date of injury to her GP, it appeared that she was not an enthusiastic participant.134 128 Appellant's Statement of Facts and Contentions, 26 March 2021, 2, 7. 129 Respondent's Closing Submissions, 14 December 2021, 7 [71], [76], 8 [81]. 130 T 1 – 76, line 1. 131 Ibid 5 – 7. 132 Ibid 13 – 14. 133 Ibid 16 – 17. 134 Respondent's Closing Submissions, 14 December 2021, 8 [82]. -- 29 of 43 -- 30 [173] In my view, the relevant circumstances were that: Ms Carr was running late for the meeting;135 she and Mr Cosgrove were about 15 to 20 metres away from each other at the time;136 and Mr Cosgrove's apparent personal communication style. [174] Ms Carr stated that Mr Cosgrove was a loud person.137 That was also my observation of Mr Cosgrove's voice and demeanour as a witness. [175] On the balance of probabilities, and on the evidence before me, I do not find that Mr Cosgrove "yelled at" Ms Carr, but rather used his "loud voice" to communicate the urgency of leaving the office now. That does not seem unreasonable given Ms Carr was both some distance away from him and herself engaged in speaking with other staff at the time and Mr Cosgrove wished to be heard over that. As it happened, Ms Carr was in fact late for the meeting, so the urgency of leaving now was itself not misplaced either. Meeting on 18 July 2019 [176] An off-site meeting at the company accountant's office was held on 18 July 2019, being the day after Ms Carr's email. [177] At that meeting, Ms Carr's recollection was that "…the following issues were discussed: the business had real trouble; there needs to be an in-house financial person; the failure of the business to pay superannuation; bills not being paid on time; that Ms Carr would need to share the scope of her functions with others; failure to manage reconciliations; and that Ms Carr's role would be significantly changed."138 [178] Counsel for the Appellant put to Mr Cosgrove that the meeting was about "transition arrangements, because of the exposure of the business by only having one person in the financial control repository, for want of a better word; you disagree with that?"139 To which Mr Cosgrove replied that the purpose of the meeting on 18 July 2019 was to "…explain to Donna that it wasn't a her or me situation, right. We wanted Donna to stay. We just wanted Donna to handover as much stuff, or information that she could."140 [179] In closing submissions, the Appellant submitted that "…what follows is two meetings: one at Basile's office on 18 July 2019…and another the following day…The evidence reveals that there was some "meeting of the minds" at these meetings, and it was confirmed that the Appellant did not want to leave, and the employer did not want her to leave, although perhaps for different reasons."141 Those words suggest that elements of Ms Carr's email was discussed at the meetings on both days - and does not support the claim contained in this particular stressor above about Ms Carr's understanding of the purpose of the meeting compared with what actually transpired. 135 T 1 – 76, line 3 136 T 1 – 75, line 35. 137 Ibid. 138 T 1 – 76 – T 1 – 77; Respondent's Closing Submissions, 14 December 2021, 6 – 7 [69]. 139 T 2 – 68, lines 13 – 16. 140 Ibid 17 – 20. 141 Appellant's Closing Submissions, 10 November 2021, 5 [32]. -- 30 of 43 -- 31 [180] Mrs Cosgrove's evidence as to the content of that meeting was that "…given the content of that email, it was clear that Donna wasn't happy. So we just wanted common ground away from work, so that the other staff weren't privy to it and seeing as Shane Basile was CC-ed on this email and worked quite closely with Donna, we approached Shane to have it there, so that it – she wouldn't feel as though it was Errol and I ganging up or anything like that. But basically, it became apparent that we were very exposed as a business having one person – and it was probably a bit negligent having one person in control of so much. So we just wanted to look at having a backup plan…"142 [181] Mrs Cosgrove added that "…I was adamant that she understood this wasn't coming from a bad place. This wasn't being negative or forceful or disrespectful. It was purely from a point of, she is integral to our business, a necessary person in our business, however, its really negligent of us not to have a backup in the instance that she's not an active member of the running of that business."143 Finding [182] I have found that Mr Cosgrove used a loud voice to ask Ms Carr if she was coming to the off-site meeting that day. The evidence does not support a finding that Mr Cosgrove yelled at her. [183] Mr and Mrs Cosgrove's decision to hold the meeting with Ms Carr off-site, after her email outburst the previous day, was considerate in my view. I accept their evidence that they did not want to appear to be "ganging up" on Ms Carr, so had arranged for Mr Basile to also be in attendance, given he and Ms Carr had a longstanding and positive professional relationship. In circumstances where Ms Carr had chosen to copy Mr Basile into her email, it was open to include him in the conversations arising. As Mrs Cosgrove had thought Ms Carr's email was "emotionally fuelled", their decision about a suitable meeting location could also be viewed as reasonable in terms of some "neutral territory." [184] There is some muddle in the evidence provided and submission drawn as to precisely what parts of that overarching transition-themed discussion happened at the meeting on 18 July 2019 and thence what bit occurred on 19 July 2019. It is clear to me that it was a big conversation and likely therefore that it continued over the two meetings held on subsequent days, as inferred in the Appellant's closing submission. However, that precise detail is not foundational to my consideration of "reasonableness" here. [185] Mr Cosgrove apparently got straight to the key take out he had drawn from Ms Carr's email, assuring her he did not want her to leave. [186] The risk to their business though was by now writ large in the minds of Mr and Mrs Cosgrove, who became active in efforts to persuade Ms Carr to "handover as much stuff, or information that she could" by way of a backup plan. [187] That is not unreasonable. 142 T 2 – 31, lines 16 – 24. 143 Ibid 6 – 11. -- 31 of 43 -- 32 [188] With respect to Ms Carr's complaint that she had expected the meeting agenda would include some discussion of her email of the previous day, I have found above that certainly the upshot of it appeared to have been. Given Mrs Cosgrove's assessment of Ms Carr's email as an "emotionally fuelled" "vent", it could be considered a kindness to her not to be required to sit down with her employer, go through that email line by line, and discuss on the very next day. Mr and Mrs Cosgrove may have decided that the best course was one of "least said, soonest mended". It appears that was particularly apposite given Ms Carr had worked with Mr Cosgrove in their business for almost 20 years by that time, the last four years in the highly significant "office manager" position with oversight of "finance and admin" following the retirement of Mr Cosgrove's mother, and the couple clearly needed her to continue. [189] If I am wrong on that point, and Ms Carr's email was not discussed at all at the meeting on the 18 July 2019 but aspects of it were instead canvassed at the next meeting the following day, I do not consider that to be unreasonable either. Certainly, a discussion about matters arising from the email was had proximate to it being sent. Providing a little space before engaging in the matter would not have been entirely unreasonable either, given a second meeting was so scheduled. [190] For those reasons, I consider the matters outlined in nominated stressor 5 constitute "reasonable management action taken in a reasonable way." Consideration – Nominated Stressor 6 No. Date Title Description 6 19 July 2019 Meeting with Mr Errol Cosgrove and Mrs Melanie Cosgrove Mr Errol Cosgrove and Mrs Melanie Cosgrove insisted on Ms Carr attending a meeting with them to discuss the email Ms Carr sent on 17 July 2019. During the meeting Mr Cosgrove verbally agrees that perhaps he did not deal with Ms X change in position correctly. Mrs Cosgrove advised Ms Carr "will need to find a way to work with (Ms X)." [191] The above description of the nominated stressor is drawn from the Appellant's List of Stressors.144 [192] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [193] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepts that this constituted management action.145 [194] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". 144 Appellant's Statement of Facts and Contentions, 26 March 2021, 8. 145 Respondent's Closing Submissions, 14 December 2021, [87]. -- 32 of 43 -- 33 Meeting on 19 July 2019 [195] I have earlier indicated there is some confusion as to whether or not Ms Carr's email of 17 July 2019 was discussed in the meeting on 18 July 2019 or 19 July 2019 or both, though ultimately that is not material for the reasons I have explained above. [196] I will therefore confine my consideration of this nominated stressor to Mrs Cosgrove's alleged statement that Ms Carr "will need to find a way to work with (Ms X)."146 [197] That claim was contained in the Appellant's Statement of Facts and Contentions but was not in oral evidence at the Hearing. Instead, what was accepted by Ms Carr was that Mrs Cosgrove "…acknowledged there had been some tension between (Ms Carr) and (Ms X) at the workplace…" That proposition is self-evident. It would not have been unreasonable for Mrs Cosgrove to have made that understated observation to Ms Carr in a meeting setting, two days after her email. Finding [198] For those reasons, I consider the matters outlined in nominated stressor 5 constitute "reasonable management action taken in a reasonable way." Consideration – Nominated Stressor 7 No. Date Title Description 7 23 July 2019 – 26 July 2019 Melbourne Trip Ms Carr felt compelled to take the trip to Melbourne and attend a work-related dinner with Ms X. Due to feeling stressed and anxious from the situation she felt forced into, it led to Ms Carr overindulging while drinking alcohol at the work-related dinner. Ms Carr spent 4 days at the Melbourne office with Ms X, who travelled on the same flight and car from the airport to the office. [199] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.147 [200] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [201] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepted that this was management action.148 [202] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". 146 Appellant's Statement of Facts and Contentions, 26 March 2021, 2. 147 Ibid 3, 8. 148 Respondent's Closing Submissions, 14 December 2021, 8 [96]. -- 33 of 43 -- 34 Melbourne trip [203] At the Hearing, Ms Carr stated: • Whilst she had gone to Melbourne previously because there was an administration staff member who worked there, Ms Carr had not previously been invited to go on the Kenworth factory tour; although "other people within the business had been invited to go, and – that posted on social media and the like."149 • "…at the 19 July 2019 meeting, I said I didn't feel that I was in the right space – frame of mind to go to Melbourne, but it would be my only opportunity to go on the factory tour. So I was determined that I would still go."150 • In cross-examination, Ms Carr confirmed both that "I was not told I had to go" and also that she had mentioned to Mr Cosgrove that she really did not want to go.151 • After her Business Class flights and accommodation were booked,152 Ms Carr was advised that Ms X would also be travelling on that trip. • Ms Carr said that while she "had huge concerns about that, but just soldiered on, I guess." 153 Ms Carr elaborated the concerns with Ms X were of a personal nature.154 • Ms Carr expressed that she felt forced to be in the same space as Ms X because she "had made the trip to Melbourne on numerous other occasions, so it would be expected that I would effectively guide her and show her."155 It transpired that Ms Carr and Ms X were booked on the same flight, with Ms Carr recalling that Ms X was seated two rows ahead of her.156 • Mr Cosgrove texted Ms Carr to advise that a limousine had been arranged to transport she and Ms X from the airport to the Melbourne office. Ms Carr said that "any other time I go to Melbourne I would catch an uber to the office",157 though she confirmed that she had not asked to be excused from taking the limo transport with Ms X.158 • There was an impromptu dinner on the first evening at a pub in Melbourne. "Everybody else" had gone to dinner together when Ms Carr received a call from a colleague present there to let her know where they were and inviting her to come. She did so and had a pleasant evening on the first night.159 149 T 1 – 38, lines 23 – 33. 150 Ibid 34 – 36. 151 T 1 – 81. 152 T 1 – 82. 153 T 1 – 38, lines 38 – 47. 154 T 1 – 39, lines 1 – 26. 155 Ibid 5 – 26. 156 T 1 – 82. 157 Ibid. 158 Ibid. 159 T 1 – 40, lines 1 – 33. -- 34 of 43 -- 35 • The following day, Ms Carr was told to be ready in the lobby at 7 pm to go to dinner. She presented as asked but found nobody there. She telephoned a colleague, who came to escort her to the floor where Mr Cosgrove, Ms X and some others were having drinks whilst waiting for another to arrive.160 • Dinner that night was at a private dining room in a fancy restaurant. Ms Carr and other colleagues have more drinks. After that, there was "general agreement" amongst the group to kick on at the casino. More drinks were consumed and Ms Carr told colleagues that "I really wasn't coping with Ms X's ingression into the business." The effects of the alcohol consumption hit Ms Carr, and she was assisted by a colleague to return to her accommodation.161 • She was woken the following day at about 11 am, as she had not checked out of her room. Upon doing so, Ms X came to reception to collect her (Ms X was in Melbourne to do some data base training, not to attend the factory tour).162 As they proceeded together to the apartment occupied by Mr Cosgrove, Ms X asked what Ms Carr's problem with her was.163 This event is further discussed at paragraphs [226] - [231] below. • There were company bills that needed to be paid that day. While Ms Carr didn't feel she had capacity to undertake that work, she "forced myself to." In cross- examination, Ms Carr accepted that the day was a work day.164 • A colleague who had attended the factory tour gave Ms Carr the gift bag she would have received there if she had attended. Mr Cosgrove walked past her and said "I'm not going to say a word."165 • Ms Carr returned home that evening. [204] At the Hearing, Mr Cosgrove: • stated it was not compulsory for Ms Carr to attend the Melbourne trip. It was open for her to elect not to go;166 • stated he did not see Ms Carr the following day, and so did not say to her "I'm not saying a word" about her failure to attend the factory trip as arranged; and167 • confirmed that attendance at the dinners on the Melbourne trip were not compulsory and it was not compulsory to drink alcohol.168 160 T 1 – 40 – T 1 – 41. 161 T 1 – 42. 162 T 1 – 82. 163 T 1 – 43, line 23. 164 T 1 – 84. 165 T 1 – 44. 166 T 1 – 53, lines 11 – 15. 167 T 1 – 53. 168 T 1 – 53. -- 35 of 43 -- 36 Finding [205] With respect to whether or not Ms Carr had to take the Melbourne trip, the evidence of both she and Mr Cosgrove was that the trip was not compulsory. [206] With respect to whether or not Ms Carr had to attend the work-related dinners on two consecutive evenings, Mr Cosgrove's evidence was that the dinners and drinks were not compulsory. [207] Ms Carr's evidence concurred that on the first night at least dinner plans were rather impromptu and that she was contacted by a colleague and invited to come along, once others were settling in at a pub. She chose to join in and had a pleasant evening. [208] Ms Carr's evidence was that she was told to be ready in the lobby at 7 pm, the day of the formal work-related dinner. Finding no-one there as arranged, she followed up with a colleague, and thence joined them for drinks in Mr Cosgrove's accommodations before heading out. That series of actions do not appear to me to indicate reluctance on Ms Carr's part to attend the work-related dinner that evening. [209] It is certainly the case too that the further excursion to the casino, settled by "general agreement" amongst dinner guests, was not compulsory. [210] Dr Chalk's evidence was that Ms Carr's advanced state of intoxication at the Melbourne work dinner was a reflection of the level of stress she felt under at work.169 While I accept that Ms Carr felt stressed and anxious, I do not find that she "felt forced into" the Melbourne trip or dinner attendance at the time. [211] With respect to the arrangements for Ms Carr and Ms X to travel on the same flight and in the same car from the airport to the office, it is neither unusual or unreasonable in circumstances where colleagues go on a work trip together. [212] I agree with the Respondent's submission that the opportunity of the Melbourne trip was "a very generous gesture of the employer".170 [213] With respect to Ms Carr's complaint about what occurred on the day she was to have attended the factory tour but did not, the point is well made that it was a work day nonetheless. Although proceeding on the tour as planned was out of the question given Ms Carr was unwell, it may have been assumed that she was able to pay some urgent bills on a computer, from the comfort of Mr Cosgrove's apartment in lieu of the alternative commitment. Ms Carr does not contend that she communicated the extent of her physical discomfort to Mr Cosgrove, when asked to do so. [214] With respect to Mr Cosgrove's alleged comment "I'm not going to say a word" when a colleague handed Ms Carr the gift bag that she was to receive at the factory tour, the recollections of Ms Carr and Mr Cosgrove differ. Quite simply, nothing turns on this point. If Mr Cosgrove's evidence is to be accepted, he didn't make that comment. If Ms Carr's evidence is to be accepted, he did. Taken at its highest however, even if I were to 169 T 1 – 18, lines 25 – 30. 170 Respondent's Closing Submissions, 14 December 2021, 9 [97]. -- 36 of 43 -- 37 accept that Mr Cosgrove made that remark, I would consider that he took a generous view of the situation. [215] I do not consider any of Ms Carr's complaints about the Melbourne trip constitute "unreasonableness" on the part of her employer. Consideration – Nominated Stressor 8 No. Date Title Description 8 26 July 2019 Ms X's disclosure Ms X disclosed to Ms Carr her knowledge of specific content of Ms Carr's email dated 17 July 2019. This made Ms Carr uncomfortable and anxious, as that information should have remained confidential. [216] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.171 [217] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". [218] With respect to this particular nominated stressor, I have earlier found that it would have involved the exercise of 'management action', if it occurred as Ms Carr alleges. The Respondent accepted that this was management action.172 [219] My task here is to determine whether this event(s) happened as Ms Carr says it did – and if so, whether the management action taken was "reasonable" and "taken in a reasonable way". [220] In this nominated stressor 8, Ms Carr complained that Ms X had knowledge of specific content of her email dated 17 July 2019 and contended this should have remained confidential. [221] The morning after the big night in Melbourne, Ms Carr stated that she was woken the following day at about 11 am, as she had not checked out of her room. [222] Upon checking out thereafter, Ms X came down to reception to collect her (it is noted that Ms X was in Melbourne to do some data base training, not to attend the factory tour).173 [223] As they proceeded together to the apartment occupied by Mr Cosgrove, "The conversation that (Ms X) and I had led me to believe she had some of the information contained in my email of 17 July."174 The conversation pretty much was "what was my problem with her."175 171 Appellant's Statement of Facts and Contentions, 26 March 2021, 3, 8. 172 Respondent's Closing Submissions, 14 December 2021, 9 [103]. 173 T 1 – 82. 174 T 1 – 43, lines 16 – 18. 175 Ibid 23. -- 37 of 43 -- 38 [224] Ms Carr's account was that "she said to her that I feel like the only reason that I am still here is that there's things I can do that no one else can do. And she said that is correct."176 [225] At the Hearing, Counsel for the Respondent put to Ms Carr that her admitted "possible conduct" the evening before, talking to other colleagues about her dislike for Ms X, was what led Ms X to ask what her problem with her was. Ms Carr did not accept that this was the case.177 Finding [226] Quite simply, given Ms X broached the topic with Ms Carr the very morning after the big night out gives weight to the proposition that she was in receipt of new information at that time. [227] Counsel for the Respondent put to Ms Carr that she had shared her dislike of Ms X with several colleagues the previous evening, to which Ms Carr conceded that she "possibly did." [228] There is no evidence that Mr Cosgrove shared the contents of the 17 July 2019 email with Ms X. [229] What remains is Ms Carr's own admission that she "possibly did" tell various people the night before that she did not like Ms X. The timing of Ms X confronting Ms Carr and asking her what her problem is cannot be a mere coincidence in my view. [230] On the balance of probabilities, I find it most likely that Ms X was told by other colleagues what Ms Carr had been saying about her the night before. [231] For those reasons, I do not consider the matters outlined in nominated stressor 8 constitute any "unreasonableness" on the part of the employer. Consideration – Nominated Stressor 9 No. Date Title Description 9 30 July 2019 Breakdown at GP's office Ms Carr attended Our Home Medical at 8 pm and upon advising that she was not coping with her current employment situation she had a breakdown. Dr Peter Gold issued a medical certificate from 31 July 2019 to 2 August 2019. [232] The above description of the nominated stressor is drawn from the Appellant's Statement of Facts and Contentions and List of Stressors.178 [233] I have earlier determined that Ms Carr's psychological injury "arose out of, or in the course of," "management action" "taken…by the employer in connection with her employment". 176 Ibid 33 – 34. 177 T 1 – 83. 178 Appellant's Statement of Facts and Contentions, 26 March 2021, 3, 8. -- 38 of 43 -- 39 [234] With respect to this particular nominated stressor, this is a report of Ms Carr's visit to her GP. It does not involve the exercise of 'management action'. [235] At the Hearing, Ms Carr stated that 30 July 2019 was the first day that she returned to the office after the Melbourne trip. Whilst Mrs Cosgrove had told her that Ms X would no longer be located in the same office as Ms Carr, that did not eventuate. Ms X "was still seated in the office, the same area as myself. I did the best I could to carry on with the work that needed to be done for the day. I returned home…I was not coping…with the situation."179 [236] Ms Carr clarified that the situation she was not coping with was getting exceedingly intoxicated in Melbourne.180 She said that was "Very out of character. I was not happy with the situation of my employ…I was feeling more and more ostracised every time I presented myself to the office, and I was finding it more difficult to complete the tasks that were expected of me by Errol Cosgrove. And I took myself to see my GP."181 [237] Ms Carr's GP issued her with a medical certificate for three days. Subsequently, an assessment under a MHCP was undertaken and a referral to a psychologist made.182 [238] In cross-examination, Ms Carr was asked what she meant by "breakdown" at the GP consultation, in the description of this nominated stressor 9. She said "The work situation that I was in was affecting all parts of my life, and I wasn't coping with that, and I wasn't functioning as the – as a – as a person."183 "Did I feel like my mental health was affected, yes."184 Finding [239] I have earlier found this to be the date of injury. [240] This is not an event said to have caused or contributed to the injury, but rather instead it is the date that Ms Carr sought the assistance of her GP. Costs [241] In light of my conclusions above, an order will be made in favour of Ms Carr to allow the appeal and set aside the Respondent's decision set out in the correspondence dated 18 December 2020. [242] I will now consider the issue of costs. 179 T 1 – 44. 180 Ibid 31 – 46. 181 T 1 – 44. 182 T 1 – 45. 183 T 1 – 84. 184 Ibid. -- 39 of 43 -- 40 [243] In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),185 Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following (citations removed): [16] The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act. It therefore follows that costs ought ordinarily follow the event. While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order. In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event. That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made… … [1] Section 558 provides as follows: "558 Powers of appeal body (1) In deciding an appeal, the appeal body may— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision; or (d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate. (2) If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer. (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." (emphasis added) [2] By s 558(3), what is "in the appeal body's discretion" (here the QIRC ) are the "costs of the hearing". The "costs of the hearing" may be quite a different thing to the "costs of the appeal". [3] The power to award costs is not a common law power. It is one granted by statute. Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so. … [4] However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act. In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole. [5] In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing". 185 [2021] ICQ 13. -- 40 of 43 -- 41 [6] The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms: "1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution." [7] I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont. [8] Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont. [244] Section 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) provides that "A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission." [245] Counsel for the Appellant has submitted in closing that: The Appellant makes no application for costs, in the event that she is successful on appeal. In the event that the Appellant fails on appeal, it is submitted that hers was a justiciable case with real prospects of success and including live issues to be heard and determined. … There is no vexatious, litigious or other bad conduct on the part of the Appellant and on this basis, it is respectfully submitted that the Tribunal might exercise its discretion to make no order as to costs. [246] That is unusual. [247] Costs in Workers' Compensation Appeals ordinarily follow the event. Had the Respondent not defended this proceeding, Ms Carr would not have incurred the expense which she did during the hearing of this matter. In my view, an award of costs in favour of Ms Carr is reasonable and appropriate, not to punish the Respondent for defending the proceeding but rather out of fairness to Ms Carr in ensuring appropriate indemnification. For those reasons, a costs order will be made in favour of Ms Carr. [248] For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),186 the Respondent will only be required to pay the "costs of the hearing" rather than the "costs of the appeal". 186 [2021] ICQ 13. -- 41 of 43 -- 42 Conclusion [249] It is accepted that Ms Carr's work was the major significant contributing factor to her psychological injury. [250] This Decision turns on whether or not the management action taken was 'reasonable' and taken in a 'reasonable way'. [251] This was not a case where Ms Carr was subjected to management action applied to correct any real or perceived performance or conduct deficiency - and an injury thence resulted. No "management action" was taken against Ms Carr of the type provided in the examples of s 32(5) above. Mr Cosgrove did not exercise, or indicate any intention to exercise, any of the suite of typical management actions such as transfer, demotion, initiation of a discipline process, redeployment, retrenchment or dismissal. Nor did Mr Cosgrove exercise, or indicate any intention to exercise, any decision against Ms Carr not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment. This appeal was simply not that type of matter. [252] Following the expression of Ms Carr's work concerns including the impact it was having on her, in November 2018, Mr Cosgrove responded by initiating a series of strategies in 2019. Some of those alleviated matters, others appeared to compound them. [253] By April 2019, an internal review commissioned by Mr Cosgrove had concluded. That review contained a series of recommendations, including a broad observation that Ms Carr had too many responsibilities and not enough staff. Some of that needed to be shifted from her shoulders. [254] Other staff were employed as a result. Ms X was one of the new hires and she quickly gained Mr Cosgrove's trust and confidence. Ms X's rapid elevation and the special considerations afforded to her were a source of irritation for Ms Carr. [255] Such chronicle of harboured hurts was recounted to Dr Chalk, who opined that the difficulties with Ms X and lack of support from Mr Cosgrove appeared to be the "crux of the matter". Dr Chalk stated that Ms Carr's psychological condition had developed "in the setting of difficulties in the workplace that had arisen over a period of time", whereby such difficulties "…occurred against a background where apparently a number of people left the workplace and that two people in her area were not replaced and this seems to have placed everyone under the pump." [256] I have not found that Ms Carr's various complaints about her interactions with, or about, Ms X constituted management action that was either unreasonable or taken in an unreasonable way. [257] However, I do consider the imposition of an unattainable level of workload and work intensity on Ms Carr, in the absence of adequate personnel support and resources to the job, to be unreasonable management action. That is what occurred in this case. It is on that basis that Ms Carr's appeal must succeed. -- 42 of 43 -- 43 [258] For the reasons above, I have found that "reasonable management action taken in a reasonable way" was not a factor causative of Ms Carr's injury – and thus the injury remains one that is compensable under s 32 of the Act. [259] I order accordingly. Orders 1. The appeal is allowed. 2. The decision of the Respondent of 4 December 2020, as set out in the correspondence dated 18 December 2020, is set aside. 3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted. 4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission. -- 43 of 43 --