Bauer v Workers' Compensation Regulator [2026] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND CITATION: Bauer v Workers' Compensation Regulator [2026] ICQ 010 PARTIES: LINA BAUER (Appellant) v WORKERS' COMPENSATION REGULATOR (Respondent) CASE NO: C/2026/5 PROCEEDING: Application to Appeal DELIVERED ON: 30 July 2026 HEARING DATE: 10 July 2026 MEMBER: HEARD AT: Merrell DP Brisbane ORDER: The order contained in paragraph [131] of these reasons for decision. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – where the Appellant was employed on a fixed term basis by the State of Queensland through the Department of Education – where the Appellant applied for workers' compensation for a psychological injury she claimed was caused by the way she was treated by her supervisors – where the Appellant's application for workers' compensation was rejected and that decision was affirmed on review by the Respondent – where the Appellant then appealed the review decision of the Respondent to the Queensland Industrial Relations Commission – where the Queensland Industrial Relations Commission rejected the Appellant's appeal on the basis that her injury arose out of reasonable management action taken in a reasonable way by the employer within the meaning of s 32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003 – -- 1 of 34 -- 2 where the Appellant appealed to the Industrial Court of Queensland contending the Queensland Industrial Relations Commission erred in law and erred in fact in its decision – whether the decision of the Queensland Industrial Relations Commission is vitiated by errors of law and, or in the alternative, errors of fact as contended by the Appellant – no error of law disclosed in the decision of the Queensland Industrial Relations Commission – no error of fact disclosed in the decision of the Queensland Industrial Relations Commission – decision of the Queensland Industrial Relations Commission confirmed LEGISLATION: Workers' Compensation and Rehabilitation Act 2003, s 32 CASES: Alex Sabo v Q-COMP [2010] ICQ 47 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Bauer v Workers' Compensation Regulator [2026] QIRC 042 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; (2020) 270 CLR 494 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Kelsey v Logan City Council & Ors (No. 5) [2024] ICQ 015 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 Prizeman v Q-COMP [2005] ICQ 43; (2005) 180 QGIG 481 RSL Care Limited v Wallace [2019] QCA 23 State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97 -- 2 of 34 -- 3 Streeter v Zhang [2026] VSCA 170 Sullivan v Council of the City of Gold Coast [2026] QCA 105 Tsakirios v State of New South Wales [2026] NSWCA 132 United Group Resources Pty Ltd and Others v Calabro and Others (No 5) [2011] FCA 1408; (2011) 198 FCR 514 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 COUNSEL: The Appellant appeared on her own behalf Ms L. Willson of Counsel for the Respondent SOLICITORS: Ms C-L. Godfrey of the Respondent Reasons for Decision Introduction [1] Ms Lina Bauer was employed as a teacher on a fixed-term temporary basis by the State of Queensland through the Department of Education at the Tagai State College ('the College') on Thursday Island. [2] On 1 September 2022, Ms Bauer lodged an application with WorkCover Queensland for workers' compensation in respect of a psychological injury which she claimed was sustained through incidents at work that had made her anxious and very stressed.1 On 25 October 2022, WorkCover Queensland advised Ms Bauer that it had rejected her application for workers' compensation because the psychological injury she sustained, the subject of her application for workers' compensation, was determined to have been sustained through reasonable management action taken in a reasonable way by the employer in connection with her employment within the meaning of s 32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').2 [3] On 3 November 2022, Ms Bauer sought a review of the decision of WorkCover Queensland with the Worker's Compensation Regulator. On 13 April 2023, the Regulator made its decision to confirm the earlier decision of WorkCover Queensland ('the review decision').3 1 Bauer v Workers' Compensation Regulator [2026] QIRC 042 ('the Primary Decision'), [65] (Industrial Commissioner Caddie). 2 The Primary Decision, [66]. 3 The Primary Decision, [67]. -- 3 of 34 -- 4 [4] Ms Bauer then, pursuant to ch 13, pt 3, div 1 of the Act, appealed the review decision to the Queensland Industrial Relations Commission. [5] After a five-day trial held on Thursday Island, and following the parties' filing and serving closing written submissions, the Industrial Commissioner, into whose hands Ms Bauer's appeal fell, dismissed Ms Bauer's appeal on the basis that Ms Bauer's injury arose out of reasonable management action taken in a reasonable way. The Industrial Commissioner concluded, therefore, that Ms Bauer's injury was excluded as being a compensable injury by virtue of the application of s 32(5)(a) of the Act ('the Primary Decision').4 [6] By application to appeal filed on 4 March 2026, Ms Bauer, pursuant to s 561(1) of the Act, appeals to this Court against the Primary Decision. [7] Ms Bauer pursues five grounds of appeal against the Primary Decision, namely: • that the Industrial Commissioner erred in law in misapplying the statutory test for reasonable management action in s 32(5) of the Act ('the first ground of appeal'); • that the Industrial Commissioner erred in law in concluding that the management action was carried out in a reasonable way ('the second ground of appeal'); • that the Industrial Commissioner erred in fact in making findings that were not reasonably open on the evidence ('the third ground of appeal'); • that the Industrial Commissioner erred in law in failing to properly determine whether her injury arose from reasonable management action as opposed to the manner and context in which that action was undertaken ('the fourth ground of appeal'); and • that the Industrial Commissioner failed to provide adequate reasons for concluding that the management action was both reasonable and undertaken in a reasonable way ('the fifth ground of appeal'). [8] For the reasons that follow, none of the five grounds of appeal pursued by Ms Bauer are made out. The consequence is that pursuant to s 562(1)(a) of the Act, I will confirm the Primary Decision. Background The matters conceded by the Regulator before the Industrial Commissioner [9] As set out in the Primary Decision, before the Industrial Commissioner, the Regulator conceded that: • Ms Bauer was a 'worker' within the meaning of the Act; 4 The Primary Decision, [250]. -- 4 of 34 -- 5 • Ms Bauer suffered a psychological injury arising out of, or in the course of, her employment and that her employment was a significant contributing factor to her injury; and • Ms Bauer's injury arose out of management action.5 Facts not in dispute [10] The following facts are not contentious between the parties having regard to Ms Bauer's grounds of appeal. [11] Ms Bauer commenced employment as a teacher at the College in June 2021 on a fixed term temporary contract of employment that was extended to December 2022. At that time, Ms Bauer held provisional teacher's registration.6 [12] In May 2022, Ms Bauer was approached by Ms Yolanda McLean, Head of School, about her (Ms Bauer's) intentions in respect of her employment at the College. In June 2022, Ms Bauer emailed Ms Suberia Bowie, Head of Campus and Ms McLean advising that she had applied for full teaching registration. Later in June 2022, Ms Bauer informed Ms Bowie that she advised Ms McLean that she would stay at the College for another year until December 2023. In response, Ms Bowie asked Ms Bauer if she intended on staying as a temporary employee or seeking conversion to being a permanent employee. Ms Bauer advised Ms Bowie that she wanted permanency in her employment.7 [13] On 18 July 2022, Ms Bauer received an email invitation from Ms Bowie to attend a meeting on 22 July 2022. The email invitation had the subject header 'Permanency Application' and listed the purpose as being '… to give feedback on permanency application.' 8 [14] On 22 July 2022, Ms Bauer attended the meeting with Ms Bowie during which she was informed of the contents of two written permanency reports. The first, dated 18 July 2022, was completed by Mr Patrick Fortescue, Head of Department, HPE, the Arts, Technologies and Languages ('Mr Fortescue's report'). The second, dated 22 July 2022, was completed by Ms Sarah Moss, Head of Department, English and the Humanities ('Ms Moss' report'). In their reports, both Mr Fortescue and Ms Moss reported about Ms Bauer's performance as a teacher.9 [15] The Industrial Commissioner found that the tenor of both (written) reports was that while aspects of Ms Bauer's performance as a teacher were good or sound, "… 'significant' improvement in classroom behaviour management skills was required."10 [16] By Ms Bauer's email sent on 24 July 2022 to Ms Bowie, to Mr Adrian Jeloudev, a representative of the Queensland Teachers' Union of Employees ('QTU') and to another person, Ms Bauer advised that her application to become a permanent employee had been 5 The Primary Decision, [6]-[8]. 6 The Primary Decision, [22] and [23]. 7 The Primary Decision, [27]-[29]. 8 The Primary Decision, [32]. 9 The Primary Decision, [34]-[36]. 10 The Primary Decision, [34]. -- 5 of 34 -- 6 placed on hold as a result of Mr Fortescue's report and Ms Moss' report. In that email, Ms Bauer described those reports as '… fallacious, malicious and libellous' and that they were full of inaccuracies, generalisations and that there was no solid evidence to support the reports.11 [17] On 27 July 2022 a meeting took place to discuss the feedback given to Ms Bauer from Mr Fortescue and Ms Moss. The persons in attendance at the meeting were Ms Bauer, Ms Bowie, Mr Fortescue, Ms Moss, Mr Jeloudev and Mr Matt Arkell, another representative of the QTU.12 The Primary Decision The date of Ms Bauer's injury [18] The Industrial Commissioner found that the date of Ms Bauer's injury was 8 August 2022.13 Ms Bauer, in her appeal, does not challenge that finding of fact. The principal issue for determination by the Industrial Commissioner [19] In the Primary Decision, the Industrial Commissioner succinctly set out the principal issue that had to be determined (footnotes omitted): One question remains [9] The remaining question for determination is whether the injury arose out of reasonable management action taken in a reasonable way, or Ms Bauer's perception of it, so as to exclude the injury from being compensable under s 32(5)(a) and (b) of the WC Act. [10] Ms Bauer must prove on the balance of probabilities that the question should be determined in her favour. [11] The Statement of Facts and Contentions ('SOFC') of Ms Bauer filed on 12 October 2023 sets out the factors Ms Bauer says render any management action unreasonable: • that the positive performance management principles had not been followed regarding 'detailing, describing and managing employee work performance'; and • the psychological 'hurt' was 'caused by' the 'unreasonable, unjust, biased and unfair actions of the management team'. [12] No stressors were nominated by Ms Bauer so the SOFC generally set the bounds of the case before the Commission. Accordingly, Ms Bauer's additional claims at trial and in closing submissions regarding alleged workplace bullying and discrimination are not within scope of the appeal and will not be considered further. [20] The Industrial Commissioner then addressed the relevant provisions of s 32 of the Act, specifically s 32(5)(a) of the Act, and how that provision had previously been construed by this Court and by the Commission.14 11 The Primary Decision, [41]. 12 The Primary Decision, [44]-[53]. 13 The Primary Decision, [69]-[72]. 14 The Primary Decision [73]-[82]. -- 6 of 34 -- 7 [21] The Industrial Commissioner also addressed the question of the onus of proof by stating (citations omitted): [83] Ms Bauer bears the onus to establish on the balance of probabilities that the injury did not arise out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with Ms Bauer's employment or the [sic] Ms Bauer's expectations or perceptions of reasonable management action being taken against her. [22] Ms Bauer, before this Court, does not challenge the decision by the Industrial Commissioner that she bore the onus of proof in her appeal to the Commission against the review decision. The Industrial Commissioner's determination about the principal issue The issues considered by the Industrial Commissioner [23] Relevantly to Ms Bauer's grounds of appeal, in coming to a determination about the principal issue, the Industrial Commissioner addressed the following issues that were agitated in the case before her: • the permanency process in respect of Ms Bauer's employment;15 • whether the meetings that took place on 22 and 27 July 2022, and the related processes, were taken in a reasonable way;16 • whether the positive performance management principles applied to Ms Bauer, including Ms Bauer's claim that there was no mention of positive performance reports about her;17 • the nature of Mr Fortescue's report and of Ms Moss' report;18 and • certain email correspondence sent by Ms Bauer between March and June 2022, to the administrative team at the College, about classroom behaviour management.19 [24] Relevantly to Ms Bauer's grounds of appeal, the Industrial Commissioner made the following relevant findings of fact. The meetings on 22 and 27 July 2022 constituted reasonable management action [25] The Industrial Commissioner found that: • the purpose of Ms Bowie wanting to meet Ms Bauer on 22 July 2022 was to give feedback to Ms Bauer about her request for permanent employment;20 15 The Primary Decision [84]-[96]. 16 The Primary Decision [97]-[101]. 17 The Primary Decision [102]-[119]. 18 The Primary Decision [121]-[150]. 19 The Primary Decision [151]-[172]. 20 The Primary Decision [85]. -- 7 of 34 -- 8 • it was reasonable management action to set a meeting with Ms Bauer to discuss feedback relevant to her request for permanent employment21 and (therefore) the meeting of 22 July 2022 was reasonable management action;22 • during the meeting on 22 July 2022, Ms Bauer insisted a second meeting be convened in order for the evidence and particulars to justify Mr Fortescue's and Ms Moss' feedback to be put, along with Ms Bauer having an opportunity to defend the '….allegations';23 and • therefore, despite, Ms Bauer's '… fervent disagreement with the feedback and rationale provided' by Mr Fortescue, Ms Moss and Ms Bowie, the holding of the meeting on 27 July 2022 constituted reasonable management action.24 The meetings on 22 and 27 July 2022 were taken in a reasonable way [26] The Industrial Commissioner found that the meetings on 22 and 27 July 2022 were taken in a reasonable way because: • while the College management held a genuine but mistaken belief that the provisions of Directive 15/20 Positive performance management ('the Directive')25 did not apply to temporary employees, the feedback meeting on 22 July 2022 was not part of any of Ms Bauer's work performance cycle and was a direct response to her request to be made a permanent employee;26 • while there could have been better communication with Ms Bauer about the meeting and the criteria that were relevant to the feedback discussion, that was an imperfection in the process that did not render the way the action was taken, in the feedback meeting, as being unreasonable;27 and • it was Ms Bauer's expectation that she would receive only positive feedback, and it was her complete rejection of any of the feedback provided that led to her conclusions that the entire process was unreasonable.28 The written reports by Mr Fortescue and Ms Moss [27] The Industrial Commissioner found, in respect of Mr Fortescue's report, that : • the timing of the feedback in the report was unlikely to have altered Ms Bauer's absolute disagreement with, and rejection of, the feedback, particularly as it related to her capacity to manage classroom behaviour; and 21 The Primary Decision [90]. 22 The Primary Decision [92]. 23 The Primary Decision [93]. 24 The Primary Decision [96]. 25 Exhibit 18, page 613 of the Appeal Book. 26 The Primary Decision [102]-[103]. 27 The Primary Decision [110]. 28 The Primary Decision [111]. -- 8 of 34 -- 9 • the views of Mr Fortescue contained in his report about Ms Bauer were based on his own assessment of Ms Bauer's capacity in the role, and there was no evidence of collusion.29 [28] The Industrial Commissioner found, in respect of Ms Moss' report, that : • while Ms Moss' experience with Ms Bauer was more limited, that did not mean her feedback should be completely discounted; • Ms Moss' direct experience of her interactions with Ms Bauer, together with an email that had been forwarded to her by Ms Bowie and feedback received from students wandering around the College, was not an unreasonable basis for her to form the views expressed in her report; • the process was open for Ms Bauer to question the feedback about her issues with behaviour management in the circumstance of Ms Moss never having observed her (Ms Bauer) teach; and • Ms Moss' explanation of how she formed her views was reasonable, and while not of the same probative value as those of Mr Fortescue who was Ms Bauer's line manager, Ms Moss' views were not made up and there was no evidence of collusion.30 [29] In respect of both reports by Mr Fortescue and Ms Moss, the Industrial Commissioner concluded: [150] Having considered the evidence of Mr Fortescue and Ms Moss I find there is no basis to support the claim of collusion in the development of the permanence reports. Mr Fortescue and Ms Moss confirmed they developed the reports based on their own assessment of Ms Bauer against the criteria. [30] By way of an overall conclusion about the feedback given to Ms Bauer and how that was done, the Industrial Commissioner stated: [199] I conclude the management action of gathering the HOD feedback, holding the feedback meeting, setting up the second meeting at the request of Ms Bauer, holding that meeting and referring to the body of emails sent by Ms Bauer to various members of the management team to support a finding that she required significant improvement in classroom management was reasonable management action taken in a reasonable way. The other issues raised by Ms Bauer [31] Relevantly to her grounds of appeal, after reviewing the email correspondence and evidence relevant to this issue, the Industrial Commissioner concluded it was reasonable for Mr Fortescue, Ms Moss and Ms Bowie to form a view, based on the body of emails sent by Ms Bauer, that: • she (Ms Bauer) was struggling to manage behaviour, and it was affecting her ability to teach; and 29 The Primary Decision [133]-[134]. 30 The Primary Decision [144]. -- 9 of 34 -- 10 • any objective assessment of the email correspondence would reasonably lead a person to conclude that was the case.31 [32] The Industrial Commissioner also relevantly found that Ms Bauer incorrectly asserted that her request to be made a permanent employee was rejected because of the feedback. This was because: • the discussions were about what support she (Ms Bauer) would need to address the areas highlighted to get her to permanent employment; • Ms Bauer's employment by the College as a permanent employee '… was never off the table'; and • at the meeting of 27 July 2022, it was Ms Bauer herself who said she no longer sought permanency as a primary outcome of the process, and that what she wanted was to '… clear her name'.32 The Industrial Commissioner's conclusion about the principal issue [33] The Industrial Commissioner concluded: [248] Ms Bauer has not met the onus of demonstrating that her psychological injury is one for acceptance as the evidence shows, on the balance of probabilities, that the management action taken was reasonable and taken in a reasonable way. [249] I find Ms Bauer's own expectations and perception of the events that occurred, rather than the reality of those events, has led to her inability to reflect on or accept any of the feedback given or support offered. [250] I find that Ms Bauer's injury arose out of reasonable management action taken in a reasonable way and is therefore excluded pursuant to s 32(5)(a) of the WC Act. The nature of an appeal to this Court pursuant to s 561 of the Workers' Compensation and Rehabilitation Act 2003 [34] Section 561 of the Act provides: 561 Appeal to industrial court (1) A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court. (2) The Industrial Relations Act 2016 applies to the appeal. (3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard. (4) The court's decision is final. 31 The Primary Decision [173]-[174]. 32 The Primary Decision [193]. -- 10 of 34 -- 11 [35] In Allesch v Maunz,33 Gaudron, McHugh, Gummow and Hayne JJ described the nature of an appeal by way of rehearing (citations omitted): 23. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.34 The theme of Ms Bauer's appeal against the Primary Decision [36] As set out above, Ms Bauer pursues five grounds of appeal against the Primary Decision. [37] Having regard to the content of those five grounds of appeal, and to Ms Bauer's written and oral submissions, there is a theme in her criticisms of the Primary Decision. That is that the Industrial Commissioner failed to accept Ms Bauer's argument that the feedback provided to her in the meeting on 22 July 2022, contained in Mr Fortescue's report and in Ms Moss' report: • amounted to final adverse findings about her teaching performance; and • that such findings were made: - in a way that was in not accordance with the Directive; - other than on direct observations of her when she was teaching; and - without her first being given an opportunity to be heard before those final conclusions were reached. [38] It is for that reason that Ms Bauer contends that the Industrial Commissioner erred, in law and in fact, in determining that her injury arose out of reasonable management action taken in a reasonable way by the employer in connection with her employment. [39] Ms Bauer's principal written submissions were very general in nature and only addressed the first four grounds of appeal and not the fifth ground of appeal by which Ms Bauer contends that the Industrial Commissioner failed to provide adequate reasons. Understandably, the Regulator did not address that ground in its written submissions. However, Ms Bauer then addressed that fifth ground in her written submissions in reply. Ms Bauer's written submissions in reply were more detailed than her principal submissions. The Regulator addressed Ms Bauer's fifth ground of appeal in its oral submissions. 33 [2000] HCA 40; (2000) 203 CLR 172. See also Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [57]-[58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 34 Citations omitted. -- 11 of 34 -- 12 [40] Ms Bauer's oral submissions, which were brief, focused upon the central theme of her criticisms of the Primary Decision as I have set out above. [41] The fundamental contention of the Regulator, as contained in its written and oral submissions, is that the Primary Decision contains no vitiating error because the management action Ms Bauer impugned was reasonable and was taken in a reasonable way. This is submitted to be the case because: • the evidence was that the two meetings the College held with Ms Bauer were not part of any formal performance management of, or disciplinary process against, Ms Bauer, but were the start of communications with Ms Bauer and were concerned with giving her feedback, both positive and negative, for the purpose of her improvement in light of her application to be made a permanent employee; and • as a consequence, no final conclusions about her performance were reached which required her to be given a prior opportunity to be heard or a prior warning. The first ground of appeal [42] Ms Bauer's first ground of appeal states: Ground 1 – Misapplication of the statutory test for "reasonable management action" The Commissioner erred in law in the application of section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) by characterising the relevant actions as reasonable management action despite findings that reveal substantive procedural deficiencies. Particulars: a. The Commissioner accepted that concerns about the Appellant’s performance arose in circumstances where the Appellant had: • not been subject to a structured performance management process; • not been provided with prior formal warning of deficiencies; b. The Commissioner nevertheless concluded that the actions were reasonable on the basis that management action need not be "perfect". c. In doing so, the Commissioner failed to distinguish between: • minor imperfections in process; and • the absence of fundamental procedural fairness. d. The conclusion that the actions were reasonable was legally inconsistent with the factual findings and reflects a misapplication of the statutory test. [43] In her written submissions in reply, Ms Bauer submitted: • the Industrial Commissioner erred by treating fundamental deficiencies in procedural fairness as though they were merely minor imperfections in process; • the '… findings established that concerns regarding the Appellant's performance had been formed prior to any structured management process, prior warning or meaningful opportunity' for her to respond; • the Directive: -- 12 of 34 -- 13 - expressly provides that public service employment is to be directed towards the application of positive performance management principles and establishes processes for managing employee work performance, including during induction and probation; - contemplates the management of work performance and, where necessary, the management of unacceptable work performance in a supportive manner; and • both principles from the Directive necessarily involve the provision of timely feedback, support, performance development and opportunities for improvement before adverse conclusions affecting '… an employee's employment interests are reached.'35 [44] Ms Bauer then submitted: 14. In the present case, the Commissioner accepted that no structured performance management process had been undertaken before significant concerns were formed and communicated to the Appellant. 15. This was not merely a minor procedural imperfection. It was directly relevant to whether the management action was objectively reasonable and undertaken in a reasonable way for the purposes of section 32(5) of the WCRA. 16. The Respondent's submission that "every performance process must begin somewhere" overlooks the purpose of the Positive Performance Management Directive. 17. The issue is not whether management could raise concerns. The issue is whether concerns affecting the Appellant's suitability for permanency were formed and communicated in a manner consistent with the supportive performance management framework that governed the employment relationship. 18. The Commissioner's findings do not adequately explain how a process undertaken without prior performance management, structured support or a meaningful opportunity to respond before conclusions were formed remained consistent with those principles. 19. The Commissioner failed to distinguish between procedural imperfections and the absence of fundamental procedural fairness. 20. Accordingly, the Appellant maintains that the statutory test under section 32(5) was misapplied. [45] Ms Bauer made the same point in her oral submissions. Ms Bauer submitted that the Industrial Commissioner's findings that the management action of holding the meeting was reasonable was '… not legally open on the findings made' because she was invited to a meeting, described as a feedback meeting, when there was no structured performance process and where there was no prior warning.36 [46] Ms Bauer does not challenge the Industrial Commissioner's construction of s 32(5) of the Act, or the Industrial Commissioner's identification of the relevant principles in the application of that section, as set out in paragraphs [73] to [82] of the Primary Decision. Further, from the content of this ground of appeal and from her submissions, it seems to me that Ms Bauer does not allege that the Industrial Commissioner applied the wrong 35 The written submissions in reply of Ms Lina Bauer filed on 22 June 2026, paras. 8-9 and 11-13. 36 T 1-3, ll 1-6. -- 13 of 34 -- 14 legal test contained in s 32(5)(a) of the Act. That is, Ms Bauer does not contend that the Industrial Commissioner erred in determining if the management action, which that had a causal connection with her injury, was reasonable management action and, if it was, whether that reasonable management action was taken in a reasonable way. [47] As a consequence, there is a question as to whether the first ground of appeal properly identifies an alleged error of law. This was a point made by the Regulator, about the first ground of appeal (and about the second ground of appeal), in its oral submissions.37 [48] Whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.38 However, where a statute uses words according to their ordinary meaning, then the question of whether the facts found fall within those words is a question of fact.39 If, in applying the statutory expression to primary facts, it is reasonably possible to arrive at different conclusions, the question being one largely of degree upon which different minds may take different views, then the matter concerns a question of fact.40 [49] In Vetter v Lake Macquarie City Council,41 Gleeson CJ, Gummow and Callinan JJ relevantly stated (citations omitted): [24] Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General: "[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law". … [26] Earlier in Williams v Bill Williams Pty Ltd, Mason JA had observed: "[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law. 37 T 1-7, l 47 to T 1-8, l 9. 38 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 ('Hope'), 7 (Mason J, Gibbs and Stephens JJ at 3 agreeing and Murphy and Aicken JJ at 11 agreeing. See also Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 (Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ), Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 [25] (Gleeson CJ, Gummow and Callinan JJ) and Streeter v Zhang [2026] VSCA 170, [57] (McLeish, Kennedy and Kaye JJA). 39 Hope (n 38), 8, Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 (Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ) and Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; (2020) 270 CLR 494, [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). 40 Hope (n 38), 7-8. 41 [2001] HCA 12; (2001) 202 CLR 439. -- 14 of 34 -- 15 The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact." [27] In Hope v Bathurst City Council, Mason J pointed out that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open. [50] Ms Bauer does not challenge the Industrial Commissioner's finding that the action of the College she impugns was '…management action'. In fact, at paragraph 39 of her submissions in reply, Ms Bauer submits that she '… accepts that management action occurred.' The attack made by Ms Bauer is that the management action that occurred was found by the Industrial Commissioner to be reasonable. In Ms Bauer's submission, the facts as found by the Industrial Commissioner do not allow for that conclusion when applied to s 32(5)(a) of the Act. [51] In my view, once the relevant facts about the impugned management action are fully found, whether that management action was '… reasonable' is a question where different conclusions are reasonably possible.42 This is because the word '… reasonable' as part of the phrase '… reasonable management action' bears its ordinary meaning or common understanding. [52] For these reasons, the first ground of appeal contends that the Industrial Commissioner erred in fact and not in law. On this basis, the first ground of appeal cannot be made out. [53] In any event, no error of the kind actually asserted by Ms Bauer in this ground, being an alleged error of fact, is made out. [54] Ms Bauer, in this ground of appeal, contends that because her performance had not been subject to a structured performance management process, and because she had not been provided with prior formal warnings of deficiencies in her performance, the Industrial Commissioner was wrong to conclude that the management action of giving her feedback about her performance (in the first meeting on 22 July 2022) was reasonable. [55] This conclusion reached by the Industrial Commissioner reveals no error, in the application of the facts as found, to s 32(5)(a) of the Act. This is for three reasons. [56] First, the Industrial Commissioner, at paragraph [82] of the Primary Decision, authoritatively identified that in the application of s 32(5)(a) of the Act: • the determination of whether management action is reasonable and whether such action is taken in a reasonable way is evaluative as well as judgmental to be determined objectively;43 • management action needs only to be reasonable and not perfect, and imperfect management action may be reasonable;44 and 42 See e.g. Alex Sabo v Q-COMP [2010] ICQ 47, [21] (President Hall). 43 Citing State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97 ('DAF') , [25] (Deputy President Merrell). 44 Ibid [26]. -- 15 of 34 -- 16 • reasonable means reasonable in all the circumstances of the case and that it is the reality of the employer's conduct that must be considered and not the employee's perception of it. 45 [57] Secondly, the Industrial Commissioner made the following relevant findings of fact: • the meeting on 22 July 2022 was to give Ms Bauer the gathered feedback about her request to be made permanent; 46 • the need for, and purpose of, that meeting had been foreshadowed in an earlier email from Ms Bowie to Ms Bauer;47 • Ms Bowie undertook her own process of gathering feedback in preparation for the meeting which involved obtaining Head of Department reports from Mr Fortescue and Ms Moss;48 and • Ms Bauer insisted on a second meeting after the 22 July 2022 meeting, and the purpose of the 27 July 2022 meeting was for Mr Fortescue and Ms Moss to document the evidence upon which they relied in their reports, and for Ms Bauer to respond to those reports.49 [58] Thirdly, on the basis of these findings of fact, the Industrial Commissioner concluded that the management action of holding the meetings on 22 July 2022 and on 27 July 2022 was reasonable.50 This conclusion reveals no error in the application of the facts as found by the Industrial Commissioner to the first part of s 32(5)(a) of the Act, namely, that there was reasonable management action. This conclusion arises for a number of reasons. [59] For a start, it was Ms Bauer's earlier request to be made a permanent employee that prompted the 22 July 2022 meeting to occur. That meeting occurred so that feedback could be given to Ms Bauer about that request. It was clearly reasonable management action for that meeting to occur. The Industrial Commissioner found that, on the evidence given by Ms Bauer at the hearing, she understood the meeting would involve giving her feedback on her application for permanent employment and, indeed, Ms Bauer had done some preparation for the meeting on that basis.51 As stated above, it was found by the Industrial Commissioner that the tenor of the reports of Mr Fortescue and Ms Moss was that Ms Bauer needed significant improvement in her classroom behaviour management skills. [60] Furthermore, the 27 July 2022 meeting occurred at Ms Bauer's insistence so that Mr Fortescue and Ms Moss could document the evidence they relied upon in their reports for their views about Ms Bauer's classroom behaviour management skills. For this reason, the holding of that second meeting was clearly reasonable management action. 45 DAF (n 43), [27]. 46 The Primary Decision, paras. [85] and [89]. 47 The Primary Decision, para. [32], [84] and [91]. 48 The Primary Decision, para. [88]. 49 The Primary Decision, paras. [93] and [95]. 50 The Primary Decision, paras. [92] and [96]. 51 The Primary Decision, paras. [32]-[33]. -- 16 of 34 -- 17 [61] Finally, even though both meetings were not preceded by a structured performance management process, and even though that both meetings were not preceded by prior warnings about the area of Ms Bauer's work performance that needed improvement, this cannot mean the holding of those meetings was unreasonable. [62] This is because the meetings were for the narrow and limited purpose of giving Ms Bauer feedback about her request to be made a permanent employee during which Ms Bauer was informed of an area where her teaching skills required improvement. Because of that purpose, it was not necessary for any prior structured performance management process to have taken place so as to be able to conclude, as a matter of fact, that the holding of the meetings was reasonable. Similarly, it was not necessary for prior formal warnings to have been given to Ms Bauer to conclude that the holding of the meetings was reasonable. Such conclusions may not have been open if the purpose of the meetings was part of a process for the College to take adverse disciplinary action against Ms Bauer because of concluded negative views about her work performance. However, that was not the nature or the purpose of the meetings. The unchallenged finding by the Industrial Commissioner was that the feedback provided to Ms Bauer was not for the purpose of denying her request to be made permanent, rather, it was for the purpose of supporting her in becoming a permanent employee.52 [63] For these reasons, it was reasonable for the College, after Ms Bauer had requested that she be made a permanent employee, to meet with her and give her feedback about the area in which her teaching performance needed improvement so as to support her becoming a permanent employee. The fact the meetings were not preceded by a formal structured management performance process, or by a prior warning process, did not mean that the holding of the meetings was unreasonable management action. [64] For all these reasons, this ground of appeal is not made out. The second ground of appeal [65] Ms Bauer's second ground of appeal states: Ground 2 – Error in concluding the management action was taken in a "reasonable way" The Commissioner erred in law in concluding that the management action was carried out in a reasonable way. Particulars: a. The findings establish that: • the Appellant was first confronted with adverse performance conclusions in a formal meeting context; 52 The Primary Decision, para. [193]. For this same reason, Ms Bauer's submission that she was denied procedural fairness by the fact of the holding of the meetings, without any prior performance process or prior warnings, is unmeritorious. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Brennan J at 628 relevantly held (citations omitted): A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. In the present case, by the College holding the meetings, no power was going to be exercised which adversely affected Ms Bauer's interests. -- 17 of 34 -- 18 • those conclusions were based substantially on reports rather than direct observation; b. The opportunity afforded to the Appellant to respond occurred after the formation and communication of adverse conclusions. c. The Commissioner characterised this as a sufficient opportunity to respond, notwithstanding that: • procedural fairness requires a meaningful opportunity to respond before adverse conclusions are reached; d. The conclusion that the process was "reasonable" was not open given the sequence and manner in which the concerns were raised and relied upon. [66] Ms Bauer, in her written submissions in reply, stated: 22. The Respondent submits that the meetings on 22 and 27 July 2022 provided the Appellant with an opportunity to understand the concerns held by management and to improve. 23. However, the findings reveal that conclusions concerning the Appellant's classroom performance had already been formed before those meetings occurred. 24. The Appellant's opportunity to respond arose only after those conclusions had been reached and communicated. 25. The issue raised by this appeal is not whether the Appellant was eventually allowed to speak. The issue is whether the process was reasonable when the opportunity to respond occurred after adverse conclusions had already been formed. 26. The Respondent's submissions fail to address this distinction. 27. Procedural fairness ordinarily requires that a person be informed of adverse matters and afforded a meaningful opportunity to respond before conclusions affecting their interests are reached and relied upon. 28. The Commissioner did not adequately address whether that requirement had been satisfied [67] For the same reasons as given in respect of the first ground of appeal, this ground contends that the Industrial Commissioner erred in fact and not in law. The challenge made by Ms Bauer is to the finding by the Industrial Commissioner that the management action was taken in a '… reasonable' way. [68] Again, because the word '… reasonable', as part of the phrase '… taken in a reasonable way', bears its ordinary meaning or common understanding, Ms Bauer's actual complaint is not that the Industrial Commissioner erred in law, but that the Industrial Commissioner erred in fact. [69] As a consequence, this ground of appeal cannot be established. [70] However, like with the first ground of appeal, no error of the kind actually asserted in this ground is made out. [71] Ms Bauer contends that it was not open to the Industrial Commissioner to conclude that the process by which the issue of her needing to improve her classroom behaviour management skills was made known to her, was reasonable. [72] Specifically, Ms Bauer contends that such an error arises because: -- 18 of 34 -- 19 • she was confronted with adverse performance conclusions in a formal meeting which were based substantially on (second hand) reports and not direct observation; • she was only offered the opportunity to respond after those conclusions were formed and communicated to her, where procedural fairness required her to be given a meaningful opportunity to respond before adverse conclusions were reached; and • the Industrial Commissioner's conclusion that the management action was taken in a reasonable way was not open given the manner in which the concerns about her teaching performance were obtained and then raised. [73] No error is made out when applying the facts as found by the Industrial Commissioner to s 32(5)(a) of the Act. This is for three reasons. [74] First, in respect of the basis upon which the views about Ms Bauer's classroom behaviour management skills were obtained, the Industrial Commissioner found that: • in respect of Mr Fortescue's report, his views were based upon his own assessment of Ms Bauer's capacity in her role and that there was no evidence of collusion;53 • while Ms Moss' experience of Ms Bauer was more limited (than that of Mr Fortescue), that did not mean her feedback should be completely discounted because Ms Moss' feedback was derived from her own interactions with Ms Bauer, from an email she had received from Ms Bowie, and from feedback received from students wandering around the College, which was not an unreasonable basis for her to form the views expressed in her (Ms Moss') report;54 and • while Ms Moss never observed Ms Bauer teach, her explanation of how she formed her views was reasonable, and while not of the same probative value as those of Mr Fortescue who was her line manager, they were not '… made up' and were not formed by collusion.55 [75] On the basis of these findings of fact, no error is disclosed in the Industrial Commissioner's conclusion that the reasonable management action (of having the feedback meetings) was taken in a reasonable way in respect of the formation of the views formed about Ms Bauer's classroom behaviour management skills.56 The views formed by Mr Fortescue and Ms Moss about Ms Bauer's classroom behaviour management skills were based upon their own direct assessment and they were not formed by collusion with others. In all the circumstances of the facts as found by the Industrial Commissioner, it was open for her to accept the evidence of Mr Fortescue and Ms Moss. 53 The Primary Decision, para. [134]. 54 The Primary Decision, para. [144]. 55 The Primary Decision, para. [144]. 56 The Primary Decision, para. [199]. -- 19 of 34 -- 20 [76] Secondly, before the Industrial Commissioner, Ms Bauer contended that the management action was not taken in a reasonable way because of the College's failure to comply with the positive performance management principles contained in the Directive.57 [77] However, the Industrial Commissioner found that, while the local school management held an incorrect although genuine belief that the positive performance management principles in the Directive did not apply to temporary employees:58 • the feedback meeting was not part of any performance cycle in respect of Ms Bauer and was in direct response to Ms Bauer's request to be made a permanent employee;59 • Ms Bauer describing the process as the end of a non-existent performance appraisal cycle, or as performance management, did not make it so;60 • the evidence was that the feedback gathered about Ms Bauer was the start of a process that would involve a discussion of how Ms Bauer could be made a permanent employee;61 and • Ms Bauer's ongoing palpable outrage about the feedback itself led to the Industrial Commissioner's conclusion that there was no circumstance in which that feedback would have been received and interpreted by her differently.62 [78] On the basis of these findings of fact, no error is disclosed in the Industrial Commissioner's ultimate conclusion, in applying those facts to s 32(5)(a) of the Act, that the management action was taken in a reasonable way. Even though the College mistakenly believed that the Directive did not apply to Ms Bauer, the purpose of the meeting on 22 July 2022 was not to inform Ms Bauer of formed conclusions about her work performance as part of an adverse formal performance review or as part of a disciplinary process that adversely affected her interests. The sequence of events of gathering the feedback and then providing that feedback to Ms Bauer for the purpose of assisting Ms Bauer with her request to be made a permanent employee, was, in all the circumstances, objectively reasonable, particularly when that process emanated from Ms Bauer's request to be made a permanent employee. [79] Further, as submitted by the Regulator,63 it is the reality of the employer's action that must be considered and not the employee's perception of the management action. The Industrial Commissioner, as set out in paragraph [82] of the Primary Decision was aware of that principle. [80] The facts as found by the Industrial Commissioner, as set out immediately above, were the reality of the way the College took the management action of holding the feedback 57 The Primary Decision, para. [97]. 58 The Primary Decision, para. [102]. 59 The Primary Decision, para. [103]. 60 The Primary Decision, para. [103]. 61 The Primary Decision, para. [106]. 62 The Primary Decision, para. [108]. 63 The written submissions of the Workers' Compensation Regulator filed on 11 June 2026 ('the Regulator's submissions'), para. 13. -- 20 of 34 -- 21 meetings. The holding of the meetings, and the way the feedback was gathered and provided to Ms Bauer, was for the purpose of assisting her with her request to be permanently employed. The holding of the meetings, and the way the feedback was gathered and provided to Ms Bauer, was not part of a formal performance management process. Ms Bauer's obvious (incorrect) perception was that the management process undertaken was a formal performance management process. That is why the Industrial Commissioner concluded at paragraph [249] of the Primary Decision that it was Ms Bauer's own expectation and perception of the events that occurred, rather than their reality, that led to her inability to reflect upon or accept any of the feedback given or support offered.64 [81] For all these reasons, this ground of appeal is not made out. The third ground of appeal [82] Ms Bauer's third ground of appeal states: Ground 3 – Findings not open on the evidence The Commissioner made findings that were not reasonably open on the evidence. Particulars: a. The finding that concerns regarding classroom and behaviour management were "genuinely held" and justified was not supported by: • direct classroom observation evidence; • contemporaneous performance management documentation; b. The Commissioner relied upon: • second-hand reports; and • the Appellant's own requests for support as corroboration of performance deficiency. c. Such material was not capable, without more, of reasonably supporting the conclusions drawn. d. The inference that the Appellant's performance justified the management action was therefore not reasonably open. [83] Ms Bauer, in her written submissions in reply, submitted: 30. The Respondent submits that there was evidence capable of supporting the findings regarding classroom and behaviour management concerns. 31. However, the Appellant's appeal concerns the quality and sufficiency of the evidence relied upon. 32. The findings were based substantially upon second-hand reports, opinions and impressions rather than direct classroom observation or contemporaneous performance management documentation. 33. Further, the Appellant's requests for support were treated as corroborative evidence of performance deficiency. 64 For the same reasons as given in footnote 52, Ms Bauer's contention as part of this ground, that she was denied procedural fairness, is unmeritorious. -- 21 of 34 -- 22 34. Seeking support in a challenging teaching environment is not, of itself, evidence of incompetence or deficient performance. 35. The inference drawn by the Commissioner was therefore not the only inference reasonably available on the evidence. 36. The Appellant maintains that the conclusions reached were not reasonably open on the evidentiary foundation identified in the decision. [84] The Regulator relevantly submitted that: • it accepted that the Industrial Commissioner's findings, that the concerns raised about Ms Bauer's work, were based on indirect evidence, such as the conclusions of Mr Fortescue and Ms Moss and their reports, however there was direct evidence in the form of emails from Ms Bauer that supported their conclusions; • these references included: - emails from Ms Bauer dated 19 June 2022 that were a cry for help; - evidence of the Regulator's witnesses, namely Mr Levi Duggar, Ms Bauer's former Head of Department and Ms Jess Miller, Teacher. • this Court must assess the evidence for itself but having regard to the advantage enjoyed by the Industrial Commissioner in seeing and hearing the witnesses give evidence; • in appeals to this Court that are a rehearing on the evidence, restraint is required on findings of fact that depended upon the Industrial Commissioner's impressions of the credibility and reliability of witnesses, and such findings should not be disturbed unless they are glaringly improbable or contrary to compelling inferences; • the findings that Ms Bauer had issues with classroom behaviour management were grounded in multiple consistent sources of evidence and cannot be characterised as glaringly improbable or contrary to compelling inferences; and • it was open to the Industrial Commissioner to make the findings of fact in paragraphs [85] to [88] of the Primary Decision and those findings of fact are not incompatible with the conclusions at paragraphs [90] or [92] of the Primary Decision.65 [85] Ms Bauer, in respect of this ground of appeal, submits that the inference drawn by the Industrial Commissioner, that her performance justified the reasonable management action of the College giving her feedback about her classroom behaviour management skills, was not open to be made. [86] In respect of the drawing of inferences, in United Group Resources Pty Ltd and Others v Calabro and Others (No 5),66 McKerracher J stated: [71] Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [90]); that is, by proof of 65 The Regulator's submissions, paras. 26-31. 66 [2011] FCA 1408; (2011) 198 FCR 514. -- 22 of 34 -- 23 primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen (1990) 170 CLR 573 at 579). The primary facts can themselves be the product of inference from other facts. [87] In RSL Care Limited v Wallace,67 Bond J (Fraser JA at [1] and Philippides JA at [2] agreeing) stated: [20] The question is whether there was evidence before the primary judge justifying his inference that the slip resistance of the floors in 2008 was inadequate in consequence of the appellant's failure to take reasonable steps to ensure the safety of its employees. As I observed in Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [55] (Gotterson and Morrison JJA agreeing): The approach which must be taken to the process of inferential reasoning required in this case is clear: see per Gageler J in Henderson v State of Queensland (2014) 255 CLR 1 at [87]-[91] and Gordon J in Re Day (2017) 340 ALR 368 at [18], and the authorities which their Honours cite. Whether the subject of the inference is a particular fact, or the existence of a state of affairs: …where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise. [88] The Industrial Commissioner concluded that the management action of gathering the feedback about Ms Bauer's classroom management skills, and then the College holding the feedback meeting about that issue, was reasonable management action taken in a reasonable way in connection with Ms Bauer's employment.68 In coming to that conclusion, the Industrial Commissioner relevantly found that: • Mr Fortesue's report, to the extent it concerned Ms Bauer's classroom behaviour management skills, was based on his own assessment of Ms Bauer in the role in respect of which there was '… no evidence of collusion.';69 • while Ms Moss' experience of Ms Bauer was more limited, her own direct experience of her interactions with Ms Bauer, an email she had received from Ms Bowie, and the feedback received from students wandering around the College, was not an unreasonable basis for her (Ms Moss) to form the views expressed in her report;70 • having considered the evidence of Mr Fortescue and of Ms Moss, there was no basis to support the claim of collusion in the development of their reports which were based on their own assessment of Ms Bauer against the relevant criteria;71 • there was email correspondence from Ms Bauer that supported the conclusion Ms Bauer was struggling to manage classroom behaviour and it was affecting her ability to teach;72 and 67 [2019] QCA 23. 68 The Primary Decision, para. [199]. 69 The Primary Decision, para. [134]. 70 The Primary Decision, para. [144]. 71 The Primary Decision, para. [150]. 72 The Primary Decision, paras. [173] and [174]. -- 23 of 34 -- 24 • all that evidence supported a finding that Ms Bauer needed significant improvement in classroom behaviour management.73 [89] There are two reasons why this ground of appeal is not made out. [90] First, the Industrial Commissioner's conclusion that Ms Bauer was struggling to manage classroom behaviour, and that it was affecting her ability to teach, was not a finding of fact made by the Industrial Commissioner drawn by inference from primary or intermediate facts. It was a finding of fact made on the balance of probabilities upon the direct proof given by Mr Fortescue and by Ms Moss, who gave evidence for the Regulator, and upon the direct proof of certain emails sent by Ms Bauer. While part of the conclusions expressed by Mr Fortescue and Ms Moss were not formed from their direct observation of Ms Bauer when she was teaching, it was their direct evidence given before the Industrial Commissioner that was relied upon by the Industrial Commissioner in finding that Ms Bauer's classroom behaviour management skills needed improvement. [91] As stated, the Industrial Commissioner relevantly found the report of Mr Fortescue, to the extent it was critical of Ms Bauer's classroom behaviour management skills, was based on his own assessment of Ms Bauer's capacity in the role and was not the subject of collusion.74 [92] The evidence relied upon by the Industrial Commissioner to come to this finding was: • Mr Fortescue's evidence in chief that he completed the report himself;75 • Mr Fortescue's evidence in chief that he came to the views in his report based upon emails he received from Ms Bauer by which she sought help about classroom management;76 • Mr Fortescue's evidence in chief (contained in his report) about his own view of Ms Bauer that she struggled with change and faced some interpersonal difficulties in communicating with colleagues and other staff when upset;77 and • Mr Fortescue's evidence in chief about the strategies he communicated to Ms Bauer about improving her management of student behaviour.78 [93] Again, as stated, the Industrial Commissioner also found that the report of Ms Moss, to the extent it was critical of Ms Bauer's classroom behaviour management skills, was based on her own assessment of Ms Bauer and was not the subject of collusion.79 [94] The Industrial Commissioner accepted Ms Moss' evidence that while Ms Bauer competently planned and assessed her classes, she struggled with behaviour management 73 The Primary Decision, para. [199]. 74 The Primary Decision, para. [134]. 75 The Primary Decision, para. [122]. 76 The Primary Decision, paras. [123]-[124]. 77 The Primary Decision, paras. [125]. 78 The Primary Decision, paras. [129]. 79 The Primary Decision, para. [144]. -- 24 of 34 -- 25 and professional communication.80 In accepting the veracity of Ms Moss' report, the Industrial Commissioner referred to Ms Moss' evidence that the content of her report was informed by her knowledge of emails that had been sent to her or which had been copied to her, her own interactions with Ms Bauer at the College, and from what she had learned from students at the College.81 [95] The Industrial Commissioner also set out, between paragraphs [151] to [174] of the Primary Decision, emails from Ms Bauer to others in the College about certain issues she had with the management of student behaviour. The Industrial Commissioner concluded that any objective assessment of those emails would reasonably lead a person to conclude that Ms Bauer was struggling to manage behaviour and it was affecting her ability to teach because a number of the emails featured '… a cry for help' and that there were explicit statements contained in the emails about her not coping.82 [96] To the extent that the Industrial Commissioner accepted Mr Fortescue and Ms Moss as witnesses of credit, then those findings must stand unless it can be shown that the Industrial Commissioner failed to use, or has palpably misused, her advantage of seeing and hearing them give evidence. [97] Further, the findings of fact made from the Industrial Commissioner's acceptance of the evidence given by Mr Fortescue and Ms Moss, and the findings of fact made from Ms Bauer's emails, must stand unless it can be shown the Industrial Commissioner has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, has made findings of fact which are glaringly improbable, or has made findings of fact contrary to compelling inferences. [98] In Kelsey v Logan City Council & Ors (No. 5), 83 I summarised the relevant principles about the determination of alleged errors of fact in an appeal by way of re-hearing (citations omitted): [220] First, a court of appeal is bound to conduct a real review of the trial and of the trial judge's reasons, and they are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions though they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in that respect: Fox v Percy. [221] Secondly, in particular cases, incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings: Fox v Percy. Such evidence must point decisively, and not merely persuasively, to error in the trial judge in acting on their impressions of the witness or witnesses. [222] In Fox v Percy, the facts were that the appellant was injured when a horse she was riding came into collision with a motor vehicle driven by the respondent. The crucial factual contest at trial was whether the respondent's motor vehicle was on the correct or incorrect side of the road at the time of impact. There was evidence of skid marks, on the respondent's correct side of the road, which was incontrovertibly established. The trial judge concluded that despite that evidence, the accident happened on the appellant's correct side of the road. That conclusion was reached based upon the appellant's evidence, the rejection of the respondent's 80 The Primary Decision, para. [139]. 81 The Primary Decision, para. [138] and [141]. 82 The Primary Decision, paras. [173]-[174]. 83 [2024] ICQ 015. -- 25 of 34 -- 26 evidence and the acceptance of the evidence of two other witnesses, one being an expert. The majority of the New South Wales Court of Appeal set aside the trial judgment on the basis the skid marks were unexplained or insufficiently explained to warrant a conclusion adverse to the respondent. The High Court agreed. As the Councillors submitted, the skid marks were incontrovertible evidence about the critical issue. [223] Thirdly, in rare cases, an appellate court may interfere with a judge's findings of fact if they are '…glaringly improbable' or '…contrary to compelling inferences'. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. [224] Fourthly, appellate restraint with respect to interference with a trial judge's findings – unless they are '…glaringly improbable' or '…contrary to compelling inferences' – is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence; and that includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. [225] As recently stated by Logan J: In relation to alleged errors in fact finding, an appellate court is required to exercise restraint when a primary judge's findings of fact depend, to an extent, on impressions as to the credibility and reliability of witnesses formed on the basis of observations of their oral evidence at trial: Fox v Percy (2003) 214 CLR 118, at 127 [26]–[27] (per Gleeson CJ, Gummow and Kirby JJ). [226] Fifthly, as referred to by McHugh J in Abalos v Australian Postal Commission ('Abalos'), unless it can be shown that a judge has failed to use or has palpably misused their advantage, a higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. In this regard, McHugh J held: Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion": Watt or Thomas v. Thomas. [227] Earlier in these reasons I referred to the decision in Earthline. That is a case of an example of a judge failing to use or palpably misusing their advantage. In Earthline, Callanan J accepted the appellant's submission that: • no different principle from that stated in Abalos needed to be developed or applied; and • notwithstanding the advantages that the trial judge had, because the trial judge did not give proper weight to the corroborative effect of the evidence of certain witnesses who were not relevantly cross-examined, the trial judge fell into error. [99] Ms Bauer does not claim that the Industrial Commissioner misused her advantage in seeing and hearing Mr Fortescue and Ms Moss give evidence. [100] Further, on the basis of the evidence given by Mr Fortescue and Ms Moss, and on the basis of Ms Bauer's emails, the Industrial Commissioner's finding of fact that Ms Bauer struggled with classroom behaviour management cannot be said to be inconsistent with facts incontrovertibly established by the evidence, cannot be said to be glaringly improbable and cannot be said to be contrary to compelling inferences. Ms Bauer does not point to any such inconsistency, improbability or contrariety that vitiates the Primary Decision. -- 26 of 34 -- 27 [101] Secondly, the conclusion reached by the Industrial Commissioner, that Ms Bauer struggled with classroom behaviour, was one that was open on the evidence given by Mr Fortescue and Ms Moss, and, in particular, from Ms Bauer's emails. [102] The relevant content of Mr Fortescue's report is set out in paragraph [35] of the Primary Decision. It clearly states that, in Mr Fortescue's view, Ms Bauer's classroom behaviour management required '… significant improvement.' [103] The relevant content of Ms Moss' report is set out in paragraph [36] of the Primary Decision. Ms Moss stated that, in her view, Ms Bauer was struggling with managing classroom behaviour, although Ms Bauer was ' … improving in this space.' [104] There are ten emails from Ms Bauer that are set out between paragraphs [151] to [172] of the Primary Decision. In particular, the emails from Ms Bauer contained in paragraph [161] (sent on 8 May 2022) and in paragraph [163] (sent on 19 June 2022) objectively indicate that Ms Bauer was not coping with the classroom behaviour of some students and that she was asking for assistance. [105] For these reasons, this ground of appeal is not made out. The fourth ground of appeal [106] Ms Bauer's fourth ground states: Ground 4 – Failure to properly consider whether the exclusion was the true cause of injury The Commissioner erred in law by failing to properly determine whether the Appellant's injury arose from reasonable management action, as opposed to the manner and context in which that action was undertaken. Particulars: a. The Commissioner accepted that the Appellant suffered a psychological injury. b. The reasoning conflates: • the existence of management action; with • the causal mechanism of injury c. Insufficient attention was given to whether the injury arose from: • the suddenness of the process; • the absence of prior warning; • the manner in which conclusions were communicated d. The statutory exclusion requires careful causal analysis, which was not properly undertaken. [107] In her written submissions in reply, Ms Bayer submitted: 40. The Appellant's case is that the psychological injury arose from the manner, timing and context of that action, including: (a) the absence of prior warning; (b) the absence of a structured performance management process; (c) the reliance upon concerns formed without prior consultation with the Appellant; -- 27 of 34 -- 28 (d) the communication of adverse conclusions before a meaningful opportunity to respond had been afforded. 41. The statutory exclusion requires careful examination of the true cause of the injury. 42. The Commissioner's reasoning did not adequately distinguish between the existence of management action and the manner in which that action was carried out. [108] This ground is misconceived for three reasons. [109] First, before the Industrial Commissioner, the Regulator conceded that Ms Bauer's injury arose out of management action.84 [110] Two, therefore, as correctly identified by the Industrial Commissioner, the principal issue for determination was whether Ms Bauer's injury arose out of reasonable management action taken in a reasonable way in connection with her employment.85 [111] Three, the matters contended by Ms Bauer in this ground of appeal are the same as the contentions contained in the first two grounds of appeal pursued by her. As stated earlier in these reasons, despite the fact that those grounds do not properly identify an alleged error of law, those grounds, when considered as alleged errors of fact, disclose no such error. That is, on the basis of whether the facts as found answer the statutory provision of the management action being 'reasonable' and taken in a '… reasonable way', the matters contended by Ms Bauer do not disclose any vitiating error in the Primary Decision. [112] For these reasons, this ground of appeal is not made out. The fifth ground of appeal [113] Ms Bauer's fifth ground of appeal states: Ground 5 – Inadequate reasoning The Commissioner failed to provide adequate reasons for concluding that the management action was both reasonable and undertaken in a reasonable way. Particulars: a. The decision asserts that the process was "fair" and "reasonable" without adequately explaining how that conclusion is reconciled with: • the absence of prior warning; • the reliance on indirect evidence; b. The reasons do not sufficiently expose the path of reasoning linking the factual findings to the legal conclusion required under section 32(5). [114] In her written submissions in reply, Ms Bauer submitted: 44. The Respondent's submissions do not address the Appellant's complaint that the reasons fail to expose a logical pathway between the findings made and the ultimate conclusion of reasonableness. 84 The Primary Decision, para. [8]. 85 The Primary Decision, para. [9]. -- 28 of 34 -- 29 45. The decision acknowledges matters including the absence of prior warning, the reliance upon indirect reports and shortcomings in the process. 46. However, the reasoning does not adequately explain how those findings were reconciled with the conclusion that the management action was both reasonable and undertaken in a reasonable way. 47. The Appellant submits that the reasons do not sufficiently disclose the reasoning process required to support the conclusion reached under section 32(5) of the WCRA. [115] In the recent decision of the New South Wales Court of Appeal in Tsakirios v State of New South Wales ('Tsakirios'),86 Kirk JA, with whom Bell CJ at [1] agreed, addressed the relevant principles about the judicial duty to provide reasons: The duty to provide reasons 160 It was not disputed that the primary judge had a duty to provide reasons for his rejection of the appellant's claim. The requirement to give reasons is a normal, though not universal, incident of the judicial process: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666–667; [1987] HCA 7; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]–[59], [68], [92] and [147]. As was said in Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [26]-[29], the reasons for the existence of this duty include the following: a hallmark of judicial power is that it resolves disputes in a way that is reasoned; providing reasons facilitate justice being seen to be done; reasons enable the parties to understand the basis for the decision so as to consider exercising any rights to appeal, and enable an appellate court to review the decision for error; and formulating reasons is a discipline which promotes better decision-making. 161 There are related administrative law principles. A failure to address a "substantial, clearly articulated argument relying on established facts" may constitute constructive jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. A constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter: Ming at [12]. Further, an administrative decision-maker with a duty to consider representations must, amongst other things, "have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them": Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1; [2024] HCA 11 at [6]. 162 The duty of judges to provide reasons involves issues beyond those involved in administrative law principles. Nevertheless, it is not necessary for judges to refer to every piece of evidence nor every argument made: see eg Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 280 and 282; Fletcher Construction v Lines Macfarlane and Marshall Ltd (2002) 6 VR 1; [2002] VSCA 189 at [157]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[66]. 163 Three members of the High Court addressed the level of detail required of judicial reasons in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (see also Nettle J at [131]) (citations omitted): [33] … At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including 86 [2026] NSWCA 132. -- 29 of 34 -- 30 the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. 164 In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 444, Meagher JA noted that the duty to provide sufficient reasons had to be balanced with the fact that "an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system". His Honour indicated that the adequacy of reasons should be assessed against the purposes which reasons serve. 165 In that context, where there is a duty on a judge to give reasons, in general those reasons should consider and address the core matters of law, fact or discretion in dispute between the parties in a reasoned way, such that the parties can consider the merits of any appeal. An appeal court considering the matter should be in a position to understand the essence of why the judicial officer came to the conclusions reached on those core matters. As was said in Ming at [43]: what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties' cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision. 166 In Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95, Basten JA noted that cases where reasons had been regarded as inadequate included "where the reasons set out the submissions presented by both parties, and then simply express a preference for one set of submissions over the other": at [45]; see further Jones v Bradley [2003] NSWCA 81 at [127]-[131]; Keith v Gal [2013] NSWCA 339 at [125]-[131]. That class of cases includes where "the judge adopts one party's submissions almost in their entirety, whilst totall[y] ignoring the submissions of the other side": Li at [46]. Similarly, it is not sufficient for a judge "merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other": Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28].87 [116] Ms Bauer's submission is that the Industrial Commissioner's reasons do not adequately explain how the Industrial Commissioner's findings – of an absence of prior warning, the reliance upon indirect reports and shortcomings in the process – were reconciled with the conclusion that the management action was both reasonable and undertaken in a reasonable way. [117] In oral submissions, the Regulator submitted by Ms Bauer just contending, without more, that the reasons where inadequate, does not prove that they were.88 [118] This contention by Ms Bauer is not made out. [119] After setting out s 32(5) of the Act and the relevant principles about the application of that provision,89 in paragraphs [84] to [96] of the Primary Decision, the Industrial Commissioner gave her reasons why the holding of the meetings on 22 and 27 July 2022 was reasonable management action.90 The reasons reveal that the Industrial Commissioner reached that conclusion because: 87 See also Sullivan v Council of the City of Gold Coast [2026] QCA 105, [18]-[22] (Doyle JA, Mullins P at [1] and Kelly J at [74] agreeing). 88 T 1-9, ll 11-12. 89 The Primary Decision, paras. [73]-[83]. 90 The Primary Decision, paras. [92] and [96]. -- 30 of 34 -- 31 • the meeting on 22 July 2022, as mutually understood between Ms Bowie and Ms Bauer, was to give Ms Bauer feedback on her application for permanent employment;91 and • the meeting on 27 July 2022 was held because Ms Bauer insisted on a second meeting for Mr Fortescue and Ms Moss to justify their feedback and for Ms Bauer to " 'defend the 'allegations.' "92 [120] The Industrial Commissioner then gave the reasons why the reasonable management action, of holding the two meetings, was taken in a reasonable way by the College. [121] In respect of the alleged absence of a prior warning about what was to be discussed in the meetings, the Industrial Commissioner stated (footnotes omitted): Were the principles applied and does this impact whether the management action was taken in a reasonable way? [102] The evidence shows that local school management held the incorrect, but genuine, belief that these principles did not apply to temporary employees. The terms of the directive itself make clear the principles apply to all employees as follows: 3. Application 3.1 This directive applies to all public service employees (except chief executives, senior executives and senior executive equivalents) as defined in section 9 of the PS Act, including public service officers, general employees, and employees engaged on a fixed term temporary or casual basis. [103] Having established that, the question is to what extent that mistaken belief could render the feedback provided as part of the permanence process unreasonable. The feedback meeting was not part of any performance cycle. It was in direct response to requested consideration for permanence. Ms Bauer describing the process as the end of a non-existent performance appraisal cycle or performance management does not make it so. [104] I do agree with Ms Bauer that the process had not been spelt out clearly by Ms Bowie before the meeting. Ms Bowie's evidence about what she thought she would have told Ms Bauer before the meeting was confused and contradictory. Ms Bowie ultimately conceded she could not recollect any other discussions or emails prior to the meeting. While she thought she had asked the HODs to discuss the feedback with Ms Bauer, their evidence supports this did not occur. While Ms Bauer asserts this makes Ms Bowie a liar, I do not agree. I consider this an example of recollection being overlaid, often subconsciously, with things a person thinks they would have or should have done. If contradictory testimony made all witnesses liars there would be no credible witnesses – even Ms Bauer. [105] As previously considered, Ms Bauer was not expecting further information leading into the meeting as she advised by email she knew the kinds of matters that would need to be discussed and was gathering her own material for that discussion. Further, there is nothing pointed to by Ms Bauer in the positive performance management principles that required direct consultation on the development of the feedback documents prior to the feedback meeting scheduled to discuss feedback. [106] If, as argued by the Regulator and supported by the evidence of the Regulator's witnesses, the feedback gathered was the start of the process that would also involve discussion of how 91 The Primary Decision, paras. [84]-[91]. 92 The Primary Decision, paras. [93]-[95]. -- 31 of 34 -- 32 to get Ms Bauer to permanence, then the absence of discussion of that feedback with Ms Bauer prior to the meeting (called to discuss the feedback) would be unremarkable. [107] Ms Bauer gave evidence at Hearing that, had she been told about the issues of concern before the meeting, it would have been a different story. For example: …if she had told me that, you know, you can't be promoted because we – we saw you on this day and we told you that you should improve in these areas, you know, if she had documents to say that and to show me, 'd [sic] say yes, I can understand why you wouldn't want to promote because you've got -you - you told me that I should improve and I haven't done anything about it. I can understand that totally. [108] I accept that the feedback would not have been a surprise at the meeting on 22 July 2022 if it had been raised earlier. However, Ms Bauer's ongoing palpable outrage about the feedback itself, leads me to conclude there were likely no circumstances in which that feedback would have been received and interpreted differently. [109] Ms Bauer considers the feedback provided to be an 'attack on her reputation', designed to deliberately undermine her standing as an exceptional teacher. The process to develop and deliver the feedback is asserted to be 'collusion', an 'ambush' and 'criminal'. [110] While there could have been better communication with Ms Bauer about the meeting and the criteria that was relevant to the feedback discussion, I consider this to be an imperfection in the process that does not render the way the action was taken via the feedback meeting unreasonable. [111] It was Ms Bauer's expectation that she would receive only positive feedback and her complete rejection of any of the feedback provided that has led to her conclusions that the entire process was unreasonable. For example, in cross-examination: Did you not expect to have any areas for improvement raised with you?... No, because not at that point, because they hadn't raised anything with me before and everything had been good. Can you accept you have room for improvement? All people always have a room for improvement. Why would you not accept, when you spoke to Suberia, that you needed – there was room for improvement for you?--- because she was telling lies. [122] In respect of the reliance upon indirect reports and shortcomings in the process, the Industrial Commissioner gave the following reasons why the reasonable management action of holding the meetings was taken in a reasonable way: • in paragraphs [114] to [119] of the Primary Decision, that despite Ms Bauer's contentions that all highly positive reports were ignored or mentioned fleetingly, there was positive feedback provided in the reports by Mr Fortescue and Ms Moss; • in paragraphs [120] to [150] of the Primary Decision, that the reports by Mr Fortescue and Ms Moss were developed from their own assessment of Ms Bauer and that there was no collusion in the making of their reports; • in paragraphs [151] to [172] of the Primary Decision, that by the email correspondence from Ms Bauer to the administration of the College about classroom behaviour '… it was reasonable for the HODs and Ms Bowie to form a view, based on the body of emails sent by Ms Bauer, that she was struggling to manage behaviour and it was affecting her ability to teach.';93 93 The Primary Decision, para. [173]. -- 32 of 34 -- 33 • in paragraphs [179] to [192] of the Primary Decision, that Ms Bauer was responsible for classroom behaviour; and • in paragraphs [193] to [198] of the Primary Decision, that the feedback provided to Ms Bauer was not used by the management of the College to reject her request to be made a permanent employee but was undertaken to support her in her request to be made a permanent employee. [123] Ultimately, having regard to all those findings of fact contained in these reasons, the Industrial Commissioner concluded: Management action taken in a reasonable way [199] I conclude the management action of gathering the HOD feedback, holding the feedback meeting, setting up the second meeting at the request of Ms Bauer, holding that meeting and referring to the body of emails sent by Ms Bauer to various members of the management team to support a finding that she required significant improvement in classroom management was reasonable management action taken in a reasonable way. [124] These reasons given by the Industrial Commissioner in fact give the explanation Ms Bauer contends is missing. The reasons consider and address the core matters of law and fact in dispute between the parties in a reasoned way. That is, from the reasons given by the Industrial Commissioner that I have set out in paragraphs [119] to [123] of these reasons for decision, two matters are clearly explicable. [125] The first matter is that I can understand how the Industrial Commissioner construed the phrase '… reasonable management action taken in a reasonable way in connection with the worker's employment' in s 32(5)(a) of the Act. [126] The second matter is that I can understand how, in applying the facts found to s 32(5)(a) of the Act, the Industrial Commissioner concluded that the management action process of informing Ms Bauer, during the meeting of 22 July 2022, that she needed significant improvement in her classroom behaviour management skills, was reasonable management action taken in a reasonable way. Further, I can understand how the Industrial Commissioner reached this conclusion: • despite Ms Bauer's claim to the Industrial Commissioner that she had been given no warning prior to the 22 July 2022 meeting; and • despite Ms Bauer's claim to the Industrial Commissioner that the College's conclusion about her classroom behaviour management skills: - was not based upon direct observations by other persons; and - was produced from shortcomings in the process. [127] In truth, this ground of appeal is not about adequacy of reasons but is an attempt by Ms Bauer to re-argue her case at first instance in the guise of an alleged error of law. [128] This ground of appeal is not made out. -- 33 of 34 -- 34 Conclusion [129] For the reasons I have given, none of Ms Bauer's grounds of appeal have been made out [130] As a consequence, the Primary Decision of the Commission will be confirmed. Order [131] The Court makes the following order: Pursuant to s 562(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Queensland Industrial Relations Commission in Matter No. WC/2023/69, delivered on 19 February 2026, is confirmed. -- 34 of 34 --