//
[2017] QIRC 88
General information, not legal advice.
Queensland Industrial Relations Commission
2017-09-28
Mr P
Original judgment source is linked above.
WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Where injury exists - Whether injury excluded under s32(5) of the Workers' Compensation and Rehabilitation Act 2003 - Appeal allowed
Uniform Civil Procedure Rules 1999 (Qld) ch 11 pt 5
Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
Commonwealth Bank v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Davidson v Blackwood [2014] QIC 008
Davis v Blackwood [2014] ICQ 009
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473
Luxton v Q-Comp [2008] QIC 2; (2009) 190 QGIG 4
Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Newberry v Suncorp Metway Insurance Limited [2006] QCA 48; [2006] 1 Qd R 519
O'Brien v Q-Comp [2007] QIRComm 53; (2007) 185 QGIG 383
Q-COMP v Green (2008) 189 QGIG 747
Read v Workers' Compensation Regulator [2017] QIRC 072
Rutledge and Comcare [2011] AATA 865 (7 December 2011)
WorkCover Corp (SA) v Summers (1995) 65 SASR 243
Ms S D Anderson of Counsel, instructed by Shine Lawyers for the appellant
Mr P Rashleigh of Counsel, instructed directly by the respondent
[1] Jason Allwood commenced employment with BES IT Systems on 1 August 2005 first as a technician and thereafter as a service manager. The appellant's role mainly comprised the maintenance and repair of computers. The appellant claims to have suffered a psychiatric injury in the course of his employment between an unidentified date in 2008 and 18 July 2014. He now seeks to set aside the decision of the Workers' Compensation Regulator dated 15 April 2016 confirming the decision of Workcover Queensland to reject the claim for compensation in accordance with s32 of the Workers' Compensation and Rehabilitation Act 2003.
[2] In this matter there are four questions which must be answered in deciding the ultimate issue:
[3] For the reasons below, questions 1 through 3 must be answered in the affirmative, and question 4 must be answered in the negative.
[4] The issues in this matter arise from section 32 of the Act. Section 32, so far as it is relevant, is in the following terms:
(1) An injury is personal injury arising out of, or in the course of, employment if -
(b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
(5) Despite subsection (1)..., injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
Did the appellant suffer a personal injury, that being a psychiatric or psychological disorder?
[5] Two consultant psychiatrists gave evidence before the Commission: Dr Michael Dwyer, was called by the appellant; and, Dr Prabal Kar, who was called by the respondent.
[6] Dr Michael Dwyer's evidence was that the appellant suffered a major depressive disorder, adjustment disorder with anxiety and an eating disorder in relation to events that occurred in his employment between 2008 and 2015. In his view, the symptoms were clinically significant as evidenced by the degree of impairment in the appellant's social and occupational functioning. It was his view that the appellant had developed emotional and behavioural symptoms in response to the stresses he had experienced at work.
[7] Dr Prabal Kar expressed the view that the appellant's symptoms were the consequence of a personality disorder with border line traits. In Dr Kar's view, the appellant did not suffer from a work related injury. In his report of 10 September 2015, Dr Kar stated as follows:
"In summary, in my opinion, Mr Allwood does not have a work-related psychiatric condition. He has pre-existing personality abnormalities. He currently has stress from the WorkCover process, stress from his unresolved litigation/compensation issues, and stress from not working and not having an income. He has experienced stress. He feels anger over how he believes he has been poorly treated by his employer after many years of hard work and loyal service. Because of his underlying personality abnormalities, he remains fragile and unstable.
I am not in agreement with the psychiatric diagnosis made by other treating clinicians psychologists, doctors and GP's as given in his file. His eating disorder is not as a result of work stress. There is documented evidence of non-work related factors which has caused him to feel suicidal before even work matters of June/July 2014. Feeing suicidal is a characteristic of his personality vulnerabilities. This behaviour has continued to be expressed during his occupational stressors and the stress from the above processes."[1]
Dr Kar does not diagnose the appellant with Borderline Personality Disorder but is of the opinion that he had many of the "traits" of Borderline Personality Disorder.
[8] Dr Dwyer disagreed with Dr Kar's diagnosis in relation to the issue of personality disorder noting in his report:
"In order to make a diagnosis of personality disorder impairments have to be relatively stable across time and consistent across situations. Essentially, this means that Mr Allwood would have had to display evidence of personality disturbance for most of his adult life. However, there was no evidence that this was the case. Prior to his experiences at BES, Mr Allwood described himself as bubbly and outgoing. He had been in several jobs for long lengths of time, had maintained a very stable relationship and continued solid relationships with his family and friends. Furthermore there was no evidence of Mr Allwood had struggle with issues relating to his identity. The changes in Mr Allwood's behaviour had occurred in the context of the stresses he was experiencing. I believe he was suffering from distinct mood, anxiety and eating disorders, and there was no evidence of personality disorder, especially no evidence of borderline personality traits."[2]
[9] In oral evidence before the Commission Dr Dwyer said:
"... if you are going to make that diagnosis you would want to see a pattern of suicidal ideation and behaviour dating back throughout one's adult life, or to at least adolescence, and quite often earlier into early adulthood, and that - I - I - I didn't see any evidence, and Mr Allwood gave me no evidence, nor did his wife Dianne, that that had been happening prior to the events that occurred at work."[3]
[10] Dr Dwyer said the appellant coped well with the death of his father-in-law and his grandmother. Whilst Dr Dwyer accepted that the deaths may have been minor stressors "...that contributed to his condition, but - but by far and away it was the work stressors that were the main - main factors."[4]
[11] Under the heading "Relationship to Events", Dr Dwyer expresses the view:
"In my opinion, there appears to be a direct correlation between the events at work described by Mr Allwood and the major depressive disorder, adjustment disorder and eating disorder. Mr Allwood's disturbed eating developed as a maladaptive coping mechanism to deal with the stress he was experiencing in regards the child pornography. His depressive disorder and adjustment disorder occurred in the context of prolonged stress regarding fraudulent activity at his workplace, and the attitude of his managers to that activity. Furthermore, unreasonable behaviour by his managers, especially Alexa, for example her response to him taking leave for the death of his grandmother, the derogatory emails that she sent, and the January 2015 letter, all clearly had very significant effects of Mr Allwood's mood and anxiety. It was not unreasonable that Mr Allwood developed those symptoms in response to such stressors."[5]
[12] In my view, the expert evidence of Dr Dwyer established that had it not been for the employment the injury would not have been sustained.
[13] The Commission was not assisted by the nature of the expert evidence relied upon by the respondent. Dr Kar's report could not be regarded as falling into a category of an impartial experts' report, especially where he expressed opinions of the following type: "As his GP had not documented it, it strongly indicates Mr Allwood is manipulating the information to support his compensation claim."[6] Dr Kar went on to observe in his report:
"Mr Allwood said the company does not accept mental illness as an injury so he was scared to tell the company about. It is inconsistent as Mr Allwood did make a work-related stress claim. It is not relevant as a GPs medical certificate, a legal document, is required to, and the company would be obliged to accept it. In claiming this I believe Mr Allwood is trying to explain away inconsistencies that he is aware of. Inconsistency strongly raise the suspicion of Malingering according to the objective DSM-IV criteria."[7]
[14] In Davidson v Blackwood, Martin J wrote that:
"It is inevitable in cases such as this that expert witnesses will play important, if not determinative, roles for both parties to a dispute. The outer limits of these roles must, however, be marked out by the law of evidence, and, in particular, the ultimate issue rule, according to which an expert witness must not seek to substitute himself or herself for the tribunal of fact, or for the Court."[8]
[15] The overriding duty of an expert witness is to assist the Commission impartially on matters relevant to his or her area of expertise. The paramount duty of an expert witness is to the Commission, not to the party by whom he or she is retained. An expert witness is not an advocate for a party. These principles find expression in the Uniform Civil Procedure Rules 1999.[9]
[16] In Makita v Sprowles, Heydon JA undertook an extensive examination of the authorities concerning the duties of expert witnesses in civil cases. His Honour said that:
"...the prime duty of experts in giving opinion evidence: to furnish the trier of facts with criteria enabling the evaluation of the validity of the expert's conclusions."[10]
"... these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialized knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight."[11]
[18] In my view, the key deficiency in the evidence of Dr Kar is the uncertainty that the opinion proffered by him was based "wholly or substantially" on his expert knowledge or that it was influenced by considerations which were outside the realm of his expertise.
[19] In resolving the conflict in the medical evidence,[12] I find the evidence of Dr Dwyer to be more persuasive.
Did the appellant's personal injury arise out of, or in the course of, his employment?
[20] During the hearing, the stressors alleged to have given rise to the appellant's injury were reduced to, and somewhat informally described as:
[21] Each of the above stressors is considered in turn below. The evidence, as it was presented, has led to me to state the facts as follows.
[22] The appellant was undertaking a backup of a laptop computer for a client within the Catholic Education Office in late 2008 or early 2009[13] when he came across a file entitled "12 year old girl gets fucked".[14] He did not see the content within the file,[15] but he was distressed by its title and believed that the file contained an image, or images, of a "12 year old that's getting fucked".[16]
[23] The appellant stopped the backup and asked Steven Donnelly, a co-worker in the service division, to come over and witness what he had just seen.[17] The backup was stopped and run again. The file appeared once more, although Mr Donnelly recalled that the name of the file was something in the terms of "12 year old", "sex", "pornography", or a combination of some of those words.[18] Mr Donnelly did not see the contents of the file.[19] The appellant then picked up the computer and took it through to show David Claydon, BES's operations manager.[20] Dylan Mapp, the sales manager, had arrived when David Claydon was shown the location of the file.[21] Both Mapp and Claydon confirmed to the appellant, who had deliberately turned away from the computer, that the file's name represented its contents.[22]
[25] Shortly after showing the file's location to Claydon and Mapp, the appellant spoke to Mr Claydon and they said that they would "take it to Alexa Bowen, the CEO of the company, and explain to her what had - what [they] had seen."[26] They saw Ms Bowen approximately thirty minutes later and Mr Claydon explained to her what had happened and which teacher the computer belonged to,[27] at which point Ms Bowen said that she would "deal with it."[28] It is not clear what Ms Bowen did, or did not do, to "deal with" the matter. Ms Bowen told this Commission that she has no recollection of a "pornographic" file in 2008 or 2009,[29] however, she was also contacted by the police concerning the file.[30]
[26] A few days after finding the file, the appellant, having not heard anything about it, asked Ms Bowen what had happened. He states that the exchange went as follows:
"I said, "How did you go with that teacher?" And [Ms Bowen] said, "I have dealt with it," or, "I have sorted it." Leave it alone, end of story, kind of, finish - she turned aggressively as she said it and - yes. I was shocked because she never stopped. She just kept walking and walking."[31]
[27] The appellant also told Ms Melissa Bates about having come across "child pornography." Ms Bates could not recall when that occurred, but she could recall that the appellant was shaky, upset, angry, and disgusted.[32]
[28] The appellant also talked to his wife regularly about the file and whether he should inform the police about it.[33] Mrs Allwood informed the Commission that her husband had impacted by the event in that he had become less happy; he was upset about going to work; he was not eating well; and, he started to exercise a lot more.[34]
[30] The discovery of the pornographic file on a Catholic Education Office computer played on the appellant's mind and he was concerned that BES had done nothing about it. He said that the thought of the file made him feel sick, anxious and distressed; at the time of discovering the file the appellant had 12 year old nieces and it was upsetting.[37]
[31] I accept the appellant's evidence concerning the existence of the file, whom he informed, and the circumstances of the file's discovery. The evidence of the appellant's colleagues who have no recollection of the file does nothing to counteract the evidence of the other witnesses who corroborate the events.
[32] The evidence suggests that ACER and HP appear to have been the only manufacturers who supplied the schools serviced by BES. There is a certain fluidity of the terms used throughout the evidence, a repair appears to relate to both the physical repairing of a broken device in its totality, and the replacement of a broken or faulty part within a device. Moreover, the evidence does not make it possible to accurately ascertain the true nature of the arrangements BES had in place during the relevant periods.
[33] The business of BES, insofar as it concerned the appellant, was primarily the repair of computers within the specified confines of contracts for service. The repairs were known as "jobs". In order to track which jobs were to be completed, they would be logged in the "BESman" system.[38] The system was relatively simple in its operation in that a client would lodge a job online, the repair would then be created within BESman and from that point it could be tracked by technicians as it worked through the various stages.[39] Those persons lodging jobs online were based at schools with which BES held contracts. Additional one-off jobs not from the schools would come to BES over the counter and they would be manually logged into BESman by an employee of BES.[40]
[34] Jobs recorded in BESman would have a particular string of information depending its method of lodgement. If it was lodged online the job would show the name of the technician at the school who had lodged the job as well as the name of the school; when it was lodged; the model, make, and serial number of a computer; and, a precis of the job.[41]
[35] On occasion employees of BES would log jobs internally against the serial number of a different computer. This occurred when the job computer was not covered by an accidental damage policy. Instead, the subject computer would be repaired under the accidental damage policy of another computer and using its serial number. This arrangement effectively prevented the client from paying for the repair of the uninsured computer. A similar system was in place for ordering replacement parts for current repair jobs or parts needed for other purposes. Additional parts would be acquired by logging a fault against parts which were otherwise functional and installed in different computers.
[36] The serial number used in lieu of the actual serial number of the computer under repair would be selected by looking for the model number of the computer to be repaired, locating a serial number and then checking the repair history which had been recorded against that particular serial number. If there had been more than three repairs logged against the computer then the manufacturer would not pay for the repair.[42] There were also other restrictions on the number of jobs logged per day and the amounts which would be paid from the manufacturer up to, and beyond, a particular limit, but it is not necessary to detail that scheme here.
[38] Generally, however, the repair jobs coming from the schools created an opportunity for BES to over-order stock as replacement parts would be ordered from the manufacturer as well parts surplus to requirements. This allowed BES to complete large numbers of repairs jobs within a short timeframe, for example, at the end of a school term.[45] It was not unusual for the appellant to lodge fake jobs.[46]
[39] Whilst it was asserted that BES had an arrangement with ACER,[47] there was no evidence from ACER to support the claim that such an arrangement existed. It seems curious to me that a company such as ACER would permit or acquiesce to such an arrangement. Moreover, it is clear from the evidence that no such arrangement was in place with respect to HP. I am comfortable in drawing a conclusion that the systems in place at BES, as they have been variously described by Mr Donnelly, Ms Barnes, and Mr Retchless, accord somewhat with the appellant's understanding of the system.
[40] The appellant's anxiety about the creation of the types of jobs described above arose from a belief that if the suppliers detected the anomalies then it would be traced back to him. I accept that the appellant told Ms Barnes and Mr Claydon that he was unhappy with logging those jobs.
[41] For the 25th anniversary of the founding of BES a screen was placed in the foyer of the office with a rolling photo collage of people who had worked with the company over that period. It remained in the foyer for some 12 to 18 months. The Appellant appeared in two of the photographs comprising the collage.
[42] At different points, but during the period in which the collage was on public display, the appellant asked Ms Bowen[48] and Ms Barnes to remove the "fat photo" of him from the slideshow. Ms Barnes was asked by the appellant to have the photograph removed in an email exchange which appears to have centred on the appellant's annual leave. The request was in the following terms:
"...for the last time, can you make sure the fat photo of me is removed from reception screen before I return. I've asked Alexa numerous times and it's fallen on deaf ears. It's offensive and makes me uncomfortable." [49]
Ms Barnes responded by sending the appellant a message that said: "Let's just hope you don't get to sit beside this guy!" That message was accompanied by an image of an overweight man standing in the aisle an airplane attempting to take his seat.[50] The request was, otherwise, not acted on.
[43] There was also, at least, one incident in which the appellant was referred to as a "fat kid on skittles".[51] I accept that that comment was not intentionally derogatory, and was perhaps meant as an indicator of his competence or attention to task,[52] nevertheless it offended the appellant.[53]
[44] There were other instances in which light was made of the appellant's size in the photographs contained in the slide show. There was also at least one additional photograph being sent between colleagues that was the subject of some ridicule. I accept, that the appellant requested that his image be removed from the slideshow and that his colleagues were making remarks about his weight. Given that the appellant was exhibiting disturbed eating behaviours and other characteristics of binge eating disorders,[54] it is not surprising that any comments made by his colleagues about his weight, or general humour about people of a larger size, had an impact on him.
The appellant's grandmother passing away - 18 July 2014 Conversation
[45] In June 2014, the appellant took two weeks leave to travel to the United Kingdom as his father-in-law had died.[55] Shortly after he returned to work, the appellant's grandmother died and he asked for and received two days bereavement leave. When he had returned from leave, the appellant said that Alexa Bowen ignored him. It came to the attention of the appellant that Ms Bowen was angry with him for taking a further period of leave following the death of his grandmother, notwithstanding the fact that she lived in the United Kingdom.[56]
[46] The appellant said that being ignored was particularly noticeable in a small office with a small number of people working together.[57] The appellant went to Alexa Bowen's office with the intention of raising his concerns with her. He said that he raised the issue of the payment of his two days of leave with Ms Bowen to see if she had a problem with the payment. Ms Bowen said she had no issue with the payment but did not understand why it was necessary for the appellant to take a further two days off because his grandmother had died in the United Kingdom.[58]
[47] The appellant was "gobsmacked" by the comment, and could not believe what Ms Bowen had just said to him.[59] The appellant said he was disgusted with her and walked out of her office. Ms Bowen accepts that the conversation took place, that the appellant got very upset with her and that he said he was disgusted with her.[60]
[48] An injury "arising out of, or in the course of, employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[61] All of the appellant's stressors arose either from tasks he completed while at work or through interactions with his work colleagues. Consequently, I can only find that the appellant's injury arose out of, or in the course of, his employment.
Was his employment the major significant contributing factor to his injury?
[49] On the respondent's case, it was contended that the appellant had some underlying personality traits that exposed him to reacting the way he did, and that the major significant factor for the appellant's injury are his underlying personality traits rather than any work-related issues. That view was, of course, informed by the evidence of Dr Kar. As I do not accept Dr Kar's evidence I am unable to accept the respondent's submission on that issue.
[50] The evidence of Dr Dwyer indicated that the appellant's employment was the major significant contributing factor to the appellant's injury. The episode involving the file of child pornography clearly set the appellant down the path which would ultimately lead him to being in the vulnerable position that he was in at the time that his injury arose.
[51] Moreover, the manner in which BES conducted its business fed into the appellant's general anxieties; the jokes concerning his weight also troubled him. However, it would appear as though the treatment that the appellant received from Alexa Bowen, so far as it related to his taking of bereavement leave, is what, ultimately, pushed him over the edge.
"Doubtless there will be cases in which one work-related incident will trigger a psychological disorder, e.g. a bank teller is the victim of an armed hold-up. However in other cases (and often in cases about s. 32(5) of the Act), the evidence will be that over time a worker has coped with workplace stress until (eventually) the worker's capacity to cope is exhausted, the worker visits a medical practitioner and a psychological injury is diagnosed." [62]
[53] This case falls into the latter category, as can be seen from the outlines of the stressors above but that does not impact on whether the appellant's employment was the major significant contributing factor to his injury. For employment to be the major significant contributing factor to the injury, the employment must be important or of consequence,[63] and there should be some linkage between the employment and the injury.[64]
[54] In Newberry v Suncorp Metway Insurance Limited, in discussing the s32 of the Act as it then was, Keane JA wrote as follows:
"... The requirement of s. 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made."[65]
"That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury". To read s. 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment"."[66]
[55] Section 32 of the Act has since been amended to require that the employment is "the major significant contributing factor to the injury." While the test is now, relatively, a higher one, his Honour's remarks are still relevant.
[56] Notwithstanding the death of both his father-in-law and his grandmother, at the relevant time the appellant's employment was the major significant contributing factor to his injury. All of the stressors experienced by the appellant are related to his employment and his employment environment. There is a very substantial connection between Mr Allwood's employment and his injury. Accordingly, I find that the appellant's employment was the major significant contributing factor to his injury.
Is the injury excluded from being compensable because the injury was the consequence of "reasonable management action taken in a reasonable way" by his employer in connection with his employment?
[57] The respondent contends that even if the appellant suffered a work related psychological or psychiatric injury, the injury would be excluded by s32(5) of the Act because it arose out of or in the course of reasonable management action taken in a reasonable way. In answering that question it is first necessary for me to consider the meaning of "management action".
[58] In Read v Workers' Compensation Regulator, I wrote the following:
"Management action is not defined in the Workers' Compensation Act 2003. Indeed, very little has been written in this jurisdiction to assist in the interpretation of the expression "management action".
In O'Brien v Q-Comp,[67] Linnane VP referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board to assist in determining the scope of what is and is not management. In that case, it was stated that:
"... managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages ... The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise ..."[68]
Management action does not embrace every instruction of and action by an employer. Rather, the expression contemplates a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform his or her duties.[69] Management action must be something different to the normal duties and incidents of her employment as a Town Planner. In other words, it must be something more than what was part and parcel of her employment.[70]"[71]
[59] This appeal provides a further opportunity to consider the meaning of "management action".
[60] The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment. This statement is informed by the reasoning of Doyle CJ, with whom Prior and Williams JJ agreed in WorkCover Corp (SA) v Summers.[72]
[61] In Summers, their Honours were called upon to construe the words "reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment" in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA). I note the similarities of that provision to the one under consideration in this matter. In Summers, Doyle CJ wrote:
"The appellant argued that "administrative action" referred to "every instruction given by the employer or action taken by the employer which relates to the performance of the worker's duties, whether directly or indirectly". That is how it was put in the appellant's outline. In his submissions counsel for the appellant said that administrative action embraced every instruction or action by the employer, indirectly or directly ....
If it is correct, it means that it becomes necessary to identify all instructions and directions given by the employer which did contribute or might have contributed to the stress, and then to examine the reasonableness of each one of them. That would be a daunting task, and I would hesitate to conclude that Parliament intended that it be performed. ...if the stress resulted from instructions or actions of the employer (and presumably an implied instruction would be as good as an express instruction), then the claim would fail unless the instruction or action was unreasonable. Commonsense suggests that many, and probably most aspects of a worker's work could be related back to instructions given by an employer or action taken by an employer. It is clear that Parliament intended to restrict stress claims, but it is another matter whether it intended to go as far as this....
Moreover, the words chosen by Parliament - "administrative action" do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties. In my opinion the appellant's submission fails to give any effect to the adjective "administrative"."[73]
[62] Summers was considered by the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve.[74] In that matter their Honours examined, amongst other things, s5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Gray J, in dismissing the appeal, wrote the following:
"The use of the word "administrative" in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word "administrative" must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not "administrative" could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as "administrative" action, but as operational action with respect to the employee's employment."[75]
[63] Rares and Tracey JJ, also dismissing the appeal, stated that:
"It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action" in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action"."[76]
[64] In discussing the definition of "administrative" their honours wrote:
"The ordinary and natural meaning of "administrative" concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. "Administrative" has the following relevant dictionary meanings:
[65] The Workers' Compensation and Rehabilitation Act 2003 (Qld) sets out examples of actions that may be reasonable management actions taken in a reasonable way. That includes action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker or a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
[66] Section 14D of the Acts Interpretation Act 1954 (Qld) provides that:
If an Act includes an example of the operation of a provision -
(b) the example does not limit, but may extend, the meaning of the provision; and
(c) the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails."
[67] Accordingly, the examples set out in s32(5) are not exhaustive. They act as an aid to interpretation as they elucidate which "actions" are appropriately deemed "management action".
[68] I respectfully adopt the approach of Rares and Tracey JJ in Reeves. The exclusory action in s32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment. Therefore the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the appellant's employment.
[69] In Davis v Blackwood, Martin J observed as follows:
"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable."[78]
[70] The management action said by the respondent to enliven s32(5) of the Act included: The failure of BES to act in response to the discovery of the pornographic file on a computer undergoing repairs and said to belong to an individual in the employ of Catholic Education; the undertaking of "fake jobs" with respect to warranties and repairs on ACER and HP computers; the failure by BES to remove a "fat photo" of Mr Allwood from a PowerPoint presentation notwithstanding his request that the photo be removed; and, the conversation with Alexa Bowen in her office on 18 July 2014. In short, these "actions" are an analogue of the four informal stressors covered above in paragraphs [20]-[48].
[71] Given the meaning of "management action" discussed above, I am unable to see how most of the actions submitted by the respondent constitute management action. The argument advanced by the respondent was that the only work related matter relevant to the injury was the conversation between Mr Allwood and Ms Bowen on 18 July 2014. The other stressors were, according to the respondent's submission, too remote in time. I do not accept that submission.
[72] For the purposes of s31(1) of the Act, a worker may sustain one or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period. The matter before the Commission was conducted on the basis that it was an "over time" claim.
[73] It is accepted by the respondent that BES undertook repairs of computers using accidental damage policies from other school computers and that BES did not have an accidental insurance policy on its computers.[79] It is clear that a system was put in place to manage the repair and maintenance of computers from schools or school based organisations. The system of work adopted by BES applied to all technicians including the appellant.
[74] It was not seriously contended by the respondent that the system in place for the repair of computers at BES constituted management action. In my view, the arrangements for the repairs of the computers can be characterised as action forming part of the appellant's everyday duties or tasks that he was required to perform as part of his employment and was therefore not management action. Even if the arrangement was considered to be management action for the purposes of s32(5) of the Act, the requirement could not be regarded as reasonable.
[75] Equally, the photo collage display on the PowerPoint in the BES foyer is not something which would come within the exclusionary provisions of the s32(5) of the Act as they did not touch on the management of the appellant's employment.
[76] The conversation stemming from the appellant's bereavement leave with Alexa Bowen on 18 July 2014 was an ad hoc, informal, or spontaneous, conversation between a manager and a worker that would not, in my view, ordinarily be considered management action, even if issues as expressed in s32(5) of the Act were raised.[80] In coming to that view, it is necessary to consider the context in which the conversation occurred, the particular circumstances of the conversation, as well as its content and purpose.
[77] The background to the conversation was the belief of Mr Allwood that over a couple of days he was ignored by Ms Bowen, something which he said was particularly noticeable in a small office environment. Mr Allwood sought a short meeting with Ms Bowen to discuss his concerns. It was during this conversation that a comment was made by Ms Bowen that she could not understand why Mr Allwood had found it necessary to take a couple of days off work for the death of his grandmother.
[78] It was not the case that Mr Allwood sought a meeting to seek permission for leave to be considered as leave had been approved and taken. The meeting was unplanned, involving an informal conversation lasting only a few minutes and it did not traverse matters which might properly be considered in a management context. The location of the meeting and the fact that it was with his manager does not draw it into the definition of management action.
[79] The reaction, however, of BES to the alleged child pornography file is the exception.
[80] The discovery of the pornography file on a computer under repair at BES comprises two elements: First, is the discovery by Mr Allwood of the file which caused his anxiety and stress; the second element was the failure of BES to respond in an adequate or indeed in any way to the complaint. Dr Dwyer observed in his report that Mr Allwood's disturbed eating developed as a maladaptive coping mechanism to deal with the stress he was experiencing in regards to the child pornography.
[81] Whilst Mr Allwood did not see the contents of the file, the mere name of it was sufficient to raise serious concerns for him. His concerns were based on the genuine belief that the file was contained on a computer owned by an organisation which had some involvement for the care of children. BES undertook repairs and maintenance on computers predominately for schools or school based organisations. Having seen the file and reported it to BES management he was entitled to expect, at the very least, that some form of investigation would have taken place. I found the evidence of Mr Claydon, Mr Mapp and Ms Bowen to be unsatisfactory and less than convincing in relation to BES's knowledge, or reporting, of the file. As outlined elsewhere, I accept that the file, as described by Mr Allwood, was discovered by him and reported to his superiors at BES.
[82] I cannot address the response of the appellant's employer as there was none. On the evidence before the Commission, there was no investigation by the employer nor was the file's discovery reported to police by the appellant's employer. It was the appellant who decided to report the matter to the authorities.
[83] The definition of management action would ordinarily include the investigation of complaints or reports, and where serious criminality is found or suspected, management action would extend to a referral to the relevant authorities. Such a scenario goes beyond the everyday, operational matters connected with a workers' employment. Rather, investigations sit under the management rubric as it is the role of management to ensure compliance with the law. Accordingly, it was, in all of the circumstances, unreasonable for BES not to act on the report of the discovery of the child pornography file.
[84] Consequently, the appellant's injury is not excluded from being compensable by operation of s32(5) as there is no relevant reasonable management action which gave rise to the appellant's injury.
[85] The stressors identified by the appellant, with the exception of the investigation of the report of the discovery of the porn file, could not properly be described as management action and consequently would not trigger the operation of s 32(5) of the Act. The combination of those work related incidents led to a situation in which the appellant could no longer cope. The medical evidence of Dr Dwyer was sufficient to draw the causal relationship between the incidents and the development of the appellant's psychiatric and psychological symptoms. Furthermore, the conduct of a manager not to investigate the report by the appellant of the porn file was a failure to perform appropriate management functions and, as a consequence, could not be categorised as reasonable management action taken in a reasonable way.
[86] For the reasons given above I have concluded that Mr Allwood:
[8] Davidson v Blackwood [2014] QIC 008, [17].
[9] See generally: Uniform Civil Procedure Rules 1999 (Qld) ch 11 pt 5.
[10] Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729.
[61] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473, 478; Theiss Pty Ltd v Q-COMP (C/2010/11), [3].
[62] Steven Lane AND Q-COMP (C/2009/34), [8].
[63] Q-COMP v Green (2008) 189 QGIG 747, 751; Luxton v Q-Comp [2008] QIC 2; (2009) 190 QGIG 4, 6.
[64] Graham Douglas Stewart v Q-COMP (C/2010/52), [15].
[65] Newberry v Suncorp Metway Insurance Limited [2006] QCA 48; [2006] 1 Qd R 519, 529-30 [27].
[66] Newberry v Suncorp Metway Insurance Limited [2006] QCA 48; [2006] 1 Qd R 519, 533-34 [41].
[67] O'Brien v Q-Comp [2007] QIRComm 53; (2007) 185 QGIG 383, 401.
[68] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437, 443.
[69] WorkCover Corp (SA) v Summers (1995) 65 SASR 243, 247.
[70] Commonwealth Bank v Reeve [2012] FCAFC 21; (2012) 199 FCR 463, 474 [33], 483 [60].
[71] Read v Workers' Compensation Regulator [2017] QIRC 072, [8]-[10].
[72] WorkCover Corp (SA) v Summers (1995) 65 SASR 243.
[74] Commonwealth Bank v Reeve [2012] FCAFC 21; (2012) 199 FCR 463.
[78] Davis v Blackwood [2014] ICQ 009, [47].
[79] Submissions on behalf of the respondent [18].
[80] Rutledge and Comcare [2011] AATA 865 (7 December 2011), (2011) 130 ALD [94].
Allwood
Workers' Compensation Regulator [2017] QIRC 88
(2012) 199 FCR 463
(1979) 24 ALR 300
(1995) 65 SASR 243
(1992) 173 CLR 473
(2001) 52 NSWLR 705