Guandalini v Workers' Compensation Regulator [2025] QIRC 171

Industrial Relations (Tribunals) Rules 2011, r 41

Blackwood v Mana [2014] ICQ 27

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

Davis v Blackwood [2014] ICQ 009

Fairley v Q-Comp (2008) 187 QGIG 150

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Groos v WorkCover Queensland [2000] ICQ 44; (2000) 165 QGIG 106

Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, IM Taylor, 15 November 2001)

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; [2006] 1 Qd R 519

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Qantas Airways Ltd v Q-COMP [2009] QIC 20; (2009) 191 QGIG 115

Q-COMP v Green (2008) 189 QGIG 747

Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97

Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1

Simon Blackwood (Workers' Compensation Regulator) v Chapman [2016] ICQ 011

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9

Taylor v Workers' Compensation Regulator [2017] QIRC 6

WorkCover Queensland v Kehl [2002] QIC 23; (2002) 170 QGIG 93

Dr M.J. Brooks, Counsel, directly instructed by the Workers' Compensation Regulator.

• [1] From 2006 Mr Anthony Carlo Guandalini ('the Appellant') was employed by the State of Queensland (Department of Education and Training) ('the Department') as a Mathematics Teacher within the North Coast Region and performed his duties at Urangan State High School ('USHS').

• [2] Since 1 April 2021 the Appellant has been absent from the workplace with a psychological injury. On 13 July 2021 the Appellant lodged an application for compensation for a psychological injury. By a review decision dated 25 March 2022 the Workers' Compensation Regulator ('the Respondent') confirmed the decision of WorkCover to reject the Appellant's application for compensation pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act').

• [3] This appeal filed in the Queensland Industrial Relations Commission ('the Commission') on 27 April 2022 is the subject of that review decision.

• [4] It is not disputed the Appellant was a worker within the meaning of s 11 of the WCR Act and suffered a psychological injury diagnosed as an adjustment disorder with mixed anxiety and depressed mood ('the injury').[1]

• [5] In short, the issues in dispute between the parties are:

1. when was the injury sustained;
2. whether the injury arose out of or in the course of the Appellant's employment;
3. whether the Appellant's employment was a significant contributing factor to the Appellant's injury; and
4. whether the injury arose out of reasonable management action taken in a reasonable way.[2]

• [6] The Appellant contends that the dispute is whether:

a) the injury arose from stressors in early 2021 as the Appellant alleges, being:

1. when he encountered Mr Kerby in staffroom 4 on 17 February 2021, despite a return-to-work protocol whereby Mr Kerby was required to be absent from staffroom 4; and

1. the USHS's response and investigation into complaints about the Appellant, following his encounter in staffroom 4 on 17 February 2021, alleging breaches of USHS's Code of Conduct; or

b) the injury was part of an earlier adjustment disorder diagnosed in 2019, as alleged by the Respondent; and

1. those stressors were other than as described; or

1. those stressors were part of reasonable management action carried out in a reasonable way.[3]

• [7] The Appellant seeks orders that the review decision of 15 March 2022 be set aside and the Respondent pay the Appellant's costs of the hearing.[4]

• [8] The Respondent argues that the injury did not arise out of or in the course of the Appellant's employment and that employment was not a significant contributing factor to his injury but, prior to 17 February 2021, arose out of his personal issues.[5] It is further contended by the Respondent that if the Commission determines that the Appellant's injury did arise out of or in the course of his employment; and his employment was a significant contributing factor to his injury, then the Appellant's injury arose out of reasonable management action taken in a reasonable way. [6]

• [9] The Respondent seeks orders that the appeal be dismissed, and the Appellant pay the Respondent's costs of the hearing.[7]

• [10] In order for his appeal to succeed, the Appellant must prove that the injury arose out of, or in the course of, employment and employment was a significant contributing factor to the injury.[8]

• [11] Only if the Appellant is able to satisfy the statutory criteria will it become relevant to consider whether his disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with his employment.[9]

• [12] Section 32 of the WCR Act, relevantly provides as follows:

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -

(iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;

(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the worker's application for compensation.

• [13] The Appellant contends that the injury arose from his employment as the result of two events which occurred at his workplace and was not the result of reasonable management action taken in a reasonable way.

• [14] Within this appeal reference is made to various employees at USHS. As will become relevant, from approximately mid-2019 the Appellant was in a personal relationship with fellow USHS mathematics teacher, Ms Monique Psaila. Mr Michael Kerby was a mathematics teachers' aid and was involved in an ongoing conflict with Ms Psaila. Their head of department (HOD) was Mr Kurt Richardson who oversaw the mathematics staffs' shared staffroom, Staff Room 4 ('SR 4'). The USHS Principal was Mr Glen Robinson. He had several deputies, including Ms Kelly Dorries, Deputy Principal (Human Resources) and Mr Nick McMorrow Deputy Principal (Staff Performance) who investigated the grievances lodged by three of the Appellant's co-workers.

• [15] The two events relied upon by the Appellant were expressed as follows:

From late 2019 to late 2020 the leadership team at the School conducted an investigation into complaints of bullying raised by Ms Psaila in relation to a colleague of the Appellant and Ms Psaila, Mr Michael Kerby.

The Appellant, Ms Psaila and Mr Kerby shared a staffroom.

In late 2020, the Appellant and Ms Psaila took leave on the grounds that they considered that the leadership team at the School had not put adequate measures in place to protect Ms Psaila's and the Appellant's wellbeing while the investigation of Ms Psaila's complaints against Mr Kerby occurred.

While the Appellant and Ms Psaila were on leave, the Appellant and Ms Psaila negotiated with the leadership team at the School a set of parameters for their return to work.

A parameters document was prepared and agreed to by the Appellant, Ms Psaila, Mr Kerby and the leadership team at the School, including the executive Principal Mr Glen Robinson in November 2020. It included the following statement:

The Principal can only give permission for Michael Kerby to return to staffroom 4 after a successful mediation process between Monique [Ms Psaila] and Michael [Mr Kerby] has occurred.

The mediation process must achieve an outcome where Monique and Michael both feel comfortable to be present in the same work space.

After the agreed parameters were established the Appellant and Ms Psaila returned to work. On 17 February 2021 Mr Kerby attended the Appellant's and Ms Psaila's staffroom unannounced. This was prior to any mediation process occurring as foreshadowed in the agreed parameters.

The Appellant questioned Mr Kerby about why he was at the staffroom and Mr Kerby responded with words to the effect, "well I'm glad you asked ...".

The Appellant immediately sought clarification from his line manager Mr Kurt Richardson and the Principal Mr Robinson as to why Mr Kerby believed he was able to attend the staffroom.

Mr Robinson had relaxed the terms of the agreed parameters without consulting with the Appellant or Ms Psaila.

Mr Robinson admitted that an error had been made in allowing Mr Kerby to go to the staffroom and directed Mr Kerby not to do so following the incident.

Shortly after Event 1, three complaints were made against the Appellant by colleagues.

All three complaints were made in writing on 18 February 2021, and all three complainants were said to be close friends of Mr Kerby.

The content of each of the complaints was similar in that they each alleged that:

1. the Appellant's workload appeared to be more relaxed than were the complainants;
2. the Appellant had been late for work and meetings;
3. in February 2021 the Appellant lost his temper and yelled at Mr Richardson, which was overheard by the complainants and perceived as intimidating;
4. the Appellant ignored the complainants in the workplace over a period of some 12 months;
5. the Appellant spoke loudly and changed the subject in the staff room, so as to monopolise discussion;
6. the Appellant did not engage fulsomely in professional discussions; and
7. the Appellant had personal conversations which made the complainants feel uncomfortable.

The complaints were provided to the Appellant for response on 10 March 2021.

The Complaints included allegations of poor behaviour and communication of an historical nature ranging over a two-year period which had never been brought to the Appellant' attention.

Concerns about behavioural standards and interpersonal issues between others within the Appellant's staffroom, including about the complainants, had been discussed in both staff meetings and between the Appellant and his line managers and no concerns had been raised about the Appellant's behaviour in those meetings.

The Appellant had, during the period complained of by the complainants, received positive feedback from his line managers concerning his behaviour in respect to interpersonal interactions.

The Appellant met with deputy Principals of the School, Mr Nicholas McMorrow and Ms Kelly Dorries concerning the complaints on 10 March 2021.

The Appellant responded to the complaints in writing on 25 March 2021. He:

1. explained that his behaviour over a period of time may have been perceived by others as withdrawn as he had been experiencing a difficult separation, for which he apologised;
2. raised concerns that alleged historical behaviour had not previously been raised with him, so that he might address it at the time;
3. identified a generally disrespectful culture in his staffroom;
4. identified allegations that he refuted;
5. raising concern that the complaints, being largely historical yet raised on the same day, were coordinated so as to disingenuously attack the Appellant; and
6. requested the opportunity to apologise and mend relationships.

An outcome meeting occurred on 1 April 2021 between the Appellant, Mr McMorrow and Ms Dorries and an outcome letter was provided to the Appellant on that day. It outlined disciplinary action to be taken, in the form of relocating the Appellant from his staffroom.

The School did not make enquiries of the complainants during the investigation as to whether the complainants had spoken to one another about raising the complaints or agreed to coordinate their complaints.[10]

• [16] In respect of Event 1, the Appellant submits that he returned to work following a period of absence in November 2020. His return to work (and that of his partner Ms Psaila) was according to the following Protocol:

a) Mr Kerby would 'not visit staffroom 4 at any time until further notice given by Principal'; and

a) 'the Principal can only give permission for Michael Kerby to return to staffroom 4 after a successful mediation process between Monique and Michael has occurred.'[11]

• [17] The Appellant said no mediation occurred. The USHS allowed Mr Kerby to visit SR 4 and that is where the Appellant encountered him on 17 February 2021.[12]

• [18] The Appellant said the day after Event 1, three formal complaints were made about him by colleagues from his staffroom (Event 2). The complaints were similar; all three cited the 17 February 2021 encounter as the catalyst for their complaints; and each contained historical complaints. They were made by friends of Mr Kerby; one of whom witnessed the encounter.[13]

• [19] The Appellant met with the two deputy Principals, Ms Dorries and Mr McMorrow responsible for undertaking an investigation of the complaints. The Appellant provided a written response to the complaints, he was concerned that the complaints were: historical; made in the context of, but without reference to, his separation from his ex-wife in early 2019; did not address the perceived culture and toxicity in SR 4; did not contextualise the encounter between the Appellant and Mr Kerby relating to the breach of the return to work Protocol; and finally that the timing of the complaints suggested some co-ordination or collusion to disingenuously attack the Appellant.[14]

• [20] The Appellant was told his complaints about toxicity in SR 4, including about the complainants, would form no part of the investigation and he was not to raise them. The investigation concluded finding that the Appellant had breached the USHS's Code of Conduct and he was removed from SR 4. [15] His treatment was inconsistent with the treatment of Mr Kerby whose removal was instigated, only with his consent, and what the Principal considered to be 'an action of last resort'. The investigation process was grossly unfair and unreasonable to exclude the Appellant from SR 4 and he was not permitted to have an internal review.[16]

• [21] In the submissions of the Appellant both events arose from management action, the management of which was not taken in a reasonable way.[17]

• [22] In evidence-in-chief the Appellant said in early 2019 he decided he would end his marriage.[18] In March 2019 the Appellant was prescribed Efexor (venlafaxine).[19]

• [23] Despite attending marriage counselling, the Appellant became more unwell and made threats of suicide to his ex-wife in May 2019.[20] Following which in August 2019 the Appellant spent time voluntarily as an inpatient in Caloundra Private Clinic.[21]

• [24] The Appellant endured ongoing issues in relation to his acrimonious divorce and shared care of his three young children.[22] These issues continued until at least May 2020 when the Appellant attended on Dr Ursula McCann, a General Practitioner who recommended he remain on Efexor. [23]

• [25] Dr Sanjay Nandam, was the Appellant's treating psychiatrist. In his report he states the Appellant continued to be prescribed Efexor as at 31 August 2023 and in cross-examination the Appellant said that his daily dosage of Efexor was increased in September 2023. [24]

• [26] During the same time, 2018-2020, there was a breakdown of a friendship group in the Maths Department of USHS who shared SR 4. The friendship group included Ms Psaila, Ms Psaila's former partner Mr Andrew Rye (then a Deputy Principal), Mr Michael Kerby and Mr Richardson.[25]

• [27] When Ms Psaila's relationship with Mr Rye ended, Ms Psaila claimed she was being bullied by Mr Kerby.[26] Following investigation of her complaints, Ms Psaila agreed in cross-examination that she was not happy with the outcome. The investigator found even though there was some unreasonable conduct by Mr Kerby, there was no bullying.[27]

• [28] In August 2020 the Appellant and Ms Psaila consulted Dr Farzin Zaer, General Practitioner for the first time. The Appellant took sick leave and sought a medical certificate to come to terms with the bullying of his partner Monique.[28]

• [29] The Respondent submits that while the workplace was the location of the stressors, the Appellant's concern at that time was for his new partner and her issues with Mr Kerby and did not arise out of his employment.[29]

1. on 2 October 2020 the Appellant is unable to get to work due to his partner still struggling;[30]
2. Dr Zaer commenced treating the Appellant for his own issues in October 2020;[31] and
3. on 5 November 2020, the Appellant "still has the ongoing issues" and is still taking Efexor.[32]

• [31] During November 2020 discussions were held between Ms Psaila, the HR Deputy Principal and a nominated return to work contact to enable Ms Psaila to return to USHS without unnecessary interaction with Mr Kerby. The 'parameters' document outlined the return-to-work plans for the Appellant and Ms Psaila.[33]

• [32] On 23 November 2020 the Appellant and Ms Psaila returned to USHS for the remainder of the school year. Mr Kerby took leave at the same time.[34]

• [33] On 17 February 2021 the incident in SR 4 occurred.

• [34] The Appellant relies on the evidence of Dr Sanjay Nandam, Consultant Psychiatrist.

• [35] The Appellant attended a series of consultations with Dr Nandam, the first being on 30 August 2021. Dr Nandam diagnosed the Appellant as suffering from adjustment disorder with mixed anxiety and depressed mood.

• [36] In his evidence-in-chief, Dr Sanjay Nandam, gave the following evidence:

MR FORD: Dr Nandam, I wonder if you could briefly summarise for us your diagnosis of Mr Guandalini?

DR NANDAM: ---Yeah. Mr Guandalini presents with an adjustment disorder with [indistinct] anxiety and depressed mood. Now, adjustment disorder is a DSM diagnosis where one - psychiatric assessment indicates depressive symptoms and anxiety symptoms secondary to a specified stressor. And in my opinion, the stressor that caused his psychiatric symptomatology is the management [indistinct] high school.[35]

MR FORD: Can you tell us, having reviewed that material, was there anything in there that was significant or might be significant to your opinion

DR NANDAM: ---Yeah. So when I saw the material, I thought it was important that I go through it to determine whether Mr Guandalini had a pre-existing depressive disorder which might account for his current symptoms. And if it's okay, would you like me to elaborate on the reasoning to that?

MR FORD: Yes, please. And perhaps you could tell us the documents you found to be significant as well?

DR NANDAM: Yes. So I think the most significant documents were the [indistinct] general practice record, but in my experience in these situations, that's very important because it's contemporaneous. It's outside of a compensation environment for the most part and that perhaps lends some objectivity to that record. I also had access to his previous treating specialists and hospital records as well, which are clearly objective and contemporaneous and outside of the compensation environment [indistinct] document. So [indistinct] situation for the document, I mean, the medical evidence suggests from 2019, he had a significant depressive disorder, and that appears to have arisen in the context of marital breakdown. That depressive disorder was severe enough to require an inpatient psychiatric admission, psychology and antidepressant treatment. Significantly, though, his general practice records show that on the 20th of May 2020, he consulted with a GP saying that he was doing well and he was well enough to discuss coming off antidepressants and he wanted to do that. I think his GP, in an abundance of caution, suggested that he should remain on antidepressants [indistinct] feeling well, and he elected to do that. That's quite normal practice, I would suggest. So for me, seeing that 30th of May 2020 entry in the general practice record [indistinct] the preceding depressive illness had resolved by May 2020. Okay. Then if we keep going into the general practice record, it's the same surgery, he was asked to present [indistinct] August 2020 [indistinct] for his [indistinct] his new [indistinct] and [indistinct] discussion [indistinct] psychiatric [indistinct] In November 2020 he continued [indistinct] but the record changes, and then - and then by March 2021 [indistinct] Dr Farzin [indistinct] general practitioner that he [indistinct] difficulty in the [indistinct] report which then contributed to [indistinct] deterioration. And then in August 2021, Dr Farzin, his general practitioner, referred him to me for further psychiatric treatment, and that's when I become involved.[36]

MR FORD: Yes. And the other - the acute psychiatric care to which you were referring in 2019, that's his admission to the Caloundra Private Clinic; is that right?---

MR FORD: Okay. Thank you. With those additional documents and information in mind, does it affect at all your opinion that you set out in your report in February 2022?

DR NANDAM: --- No, it doesn't change my opinion and I think, if anything, it reinforces that that opinion is - is correct.[37]

• [37] In cross-examination, Dr Nandam was asked:

DR BROOKS: And that's why the diagnosis, you felt, was appropriate in 2021, when you first consulted and saw him, is still appropriate, two years later?

DR BROOKS: And that diagnosis hasn't changed, although as we've been discussing, the stressor changes?

DR NANDAM: Yes. You can get an adjustment to a new stressor. It's just got the same name again.[38]

• [38] The Appellant submitted that Dr Nandam's opinion was not contradicted during cross‑examination. Dr Nadam said the acute psychological distress caused to the Appellant by the difficult separation from his ex-wife had subsided and: "it was a new disorder arising from new stressors."[39]

• [39] In cross-examination, Dr Nandam expressed the view that people who had experienced a previous adjustment disorder requiring treatment are more vulnerable to developing an additional adjustment disorder when under stress:

DR BROOKS: And is it the case that the medication is maintained in order to mitigate against a further similar psychiatric response to a new stressor?

DR NANDAM: ---Yeah. And also to prevent deterioration.

DR BROOKS: Yes. All right. And is it the case that the medication is maintained because there's an ongoing vulnerability to having a further, excessive response to a stressor?

DR NANDAM: --- I think [indistinct] in the stressful situation, if the medication is stopped, the stress would likely worsen his mental health. Yes.

DR BROOKS: And then, when there is no stressor present, the purpose of the medication is to prevent an excessive response, should there be a new stressor?

DR NANDAM: --- Yes. It - it's more - more nuanced than that. I mean, once you've had two depressive episodes, statistically, there's evidence now that people who remain on antidepressants whilst well are much more likely to have a further episode, no matter what the cause. So it'd be - he - so he's basically advised to remain on the medication [indistinct].

DR BROOKS: Yes? Okay. So that statistical likelihood that is increased for people who've had a couple of adjustment disorders as a result of stressors, is it the case that that's - that it will wax and wane, depending on what stressors are present?

DR NANDAM: --- I think you can say that people who've had previous adjustment disorders that require treatment are at a higher risk of - are much vulnerable to developing an additional adjustment disorder under stress.

DR NANDAM: --- Could increase the statistical likelihood to have the same condition again.

DR BROOKS: Yes. All right. And while it might be in remission in relation to the earlier stressor - - -?

DR NANDAM: ---Yep. - - - it may manifest again if there's, as you say, an extreme stressor present?---Yeah. I mean, this is where the dif - difference between separate episodes and baseline vulnerability. You could've been in remission for many years, and with the right stressor, you could have another episode.[40]

• [40] The Respondent referred to the evidence of Dr Nandam's that whilst the condition might be in remission for some years, the condition may manifest itself again when another stressor is present. Dr Nandam accepted that the Appellant had, notwithstanding his ongoing use of Efexor, succumbed to further stressors. That was why his diagnosis of the Appellant's condition in 2021 was still appropriate in 2023, though the stressors had changed.[41] The Respondent submitted that this is what occurred between 2019 and the events of February to April 2021.[42]

• [41] The Appellant submits the Respondent has misstated Dr Nandam's evidence as suggesting that the Appellant's current injury was a continuation of his previous injury.[43] The Appellant submits that the evidence of Dr Nandam was that the previous injury had "resolved" and a new injury arose from a new stressor, albeit the same type of injury as before:[44] "You can get an adjustment [disorder] to a new stressor. It's just got the same name again." [45]

• [42] In reply the Appellant submits that the evidence of Dr Nandam was that the continuation of Efexor was for two reasons: to prevent a similar psychiatric response to a new stressor; and to prevent deterioration.

• [43] The Appellant consulted Dr Zaer on 20 August 2020 who issued a medical certificate stating the Appellant first suffered the injury on 17 August 2020.[46] A further certificate was issued with those same dates.[47] Dr Zaer provided medical certificates for the Appellant from 20 August 2020 to 13 November 2020 as follows:

• 20 August 2020 "partner Monique Psaila [sic] has issues with bullying he need time to come to terms with him. MC done."[48]
• 2 October 2020 "partner still struggling - he is unable to get to work - MC done".[49]
• 5 November 2020 "still has the ongoing issues - use venlafaxine - need repeat scripts".[50]
• 7 November 2020 "Stress due to alleged bullying of partner at work".[51]
• 13 November 2020 "RTW certificate done". [52]

• [44] In his evidence-in-chief, Dr Zaer said the Appellant attended upon him on 13 July 2021 and sought changes to the dates on his Workers' Compensation medical certificates to 31 March 2021.[53] According to the records, the change of date to 31 March 2020 was incorrect.[54] Dr Zaer also changed the date of injury to 31 March 2020.[55]

• [45] At his next appointment with Dr Zaer on 14 August 2021 the Appellant sought the dates be altered to record the date of the first consultation in respect of the injury as 31 March 2021 and the date of injury as 31 March 2021 (being post the stressors nominated in this claim).[56]

• [46] Dr Zaer said at the consultation on 11 November 2021 the Appellant gave him: "a long list of papers of complaints and what date and what had happened and the - the detailed ... allegations ... and the time line of events that happened ...".[57]

• [47] The Appellant was upset that his claim had been rejected, and he had sought to have the workers' compensation medical certificate reflect the date he alleged he was injured being 31 March 2021, which Dr Zaer corrected.[58]

• [48] The Respondent contends the Appellant attempted: 'to contrive a more helpful clinical picture by putting pressure on Dr Zaer to reissue workers' compensation medical certificates'.[59] It is further submitted that the Commission have regard to the contemporaneous reports of Dr Zaer as evidence of what occurred and not the amended workers' compensation certificates.[60]

• [49] In the submissions of the Respondent, it is more probable than not the Appellant's condition, 'waxed and waned according to stressors acting upon him at any one time' and the events nominated in this appeal did not give rise to any new psychiatric condition.[61]

Appellant's psychological condition prior to the nominated stressors

• [50] The Respondent contends that the Appellant's adjustment disorder was first causally related to his marriage breakdown, and it is more probable than not the same illness affected him while he was dealing with issues relating to his new partner; his encounter with Mr Kerby in the staffroom on 17 February 2021; as well as the grievance made against him at work because:

a. on Dr Nandam's clinical assessment as at 30 August 2021, 3 March 2022 and 12 May 2022 his separation issues were still impacting upon him;

b. stressors related to Ms Psaila's difficulties rendered him incapacitated for work between 20 August 2020 and 23 November 2020; and

c. he has remained on the same continuous treatment.[62]

• [51] The Appellant submits that what the Respondent put to Dr Nandam and Dr Zaer seemed to be that the Appellant's injury pre-dated his alleged stressors and instead were a 'continuation from his difficult separation from his ex-wife in 2019, or related to his reaction to the bullying at work of his colleague and his new partner, Ms Psaila'.[63]

• [52] In relation to the separation, the Appellant submits that it was the unchallenged evidence of Dr Nandam that the: "acute psychological distress caused Mr Guandalini by that earlier event had subsided; was in remission".[64] Dr Nandam's view was that the current injury was: "a new injury arising from new stressors".[65]

• [53] In his evidence-in-chief, Mr Michael Zandy, Maths Teacher at USHS said he observed the Appellant after his separation: "once that was sort of finalised, I felt Tony was a more happy - and just more comfortable in the workplace."[66]

• [54] As to the suggestion the Appellant was not diagnosed with an adjustment disorder in August 2020 at the time he went on sick leave with Ms Psaila, the Respondent submits that where there is demonstrated incapacity for work a diagnosis is not required.[67]

• [55] The Appellant has not pleaded any aggravation of an existing condition. Instead, he claims he was psychologically well before 17 February 2021 when he developed a new adjustment disorder injury for which he is already being treated with Efexor.[68]

• [56] The Appellant contends the following are the four stressors as set out in his Statement of Facts and Contentions:[69]

1. Unilateral change of agreed parameters;
2. Complaints against the Appellant;
3. Management of investigation of complaints by complainants; and
4. Decision of the School about the complaints and imposition of disciplinary action.

Why was Mr Kerby in staffroom 4 on 17 February 2021 (The unilateral change of agreed parameters)

• [57] The Appellant submits there is contention over why Mr Kerby was in SR 4 on 17 February 2021 despite the terms of the return-to-work Protocol.

• [58] During cross-examination, Mr Robinson denied he had given Mr Kerby permission to be in the staffroom:

MR FORD: Was he not explicitly told he couldn't be there?

MR ROBINSON: He - he had been told the year before and he came back to request whether he could go back into the staffroom as part of his job, and, at that time, as I said earlier, the three - three people there, Kirt, Lisa, Cooper, myself felt that was a reasonable request but would need to be put in place by talking with the other staff, in particular, Tony and Monique.[70]

• [59] A file note of a meeting on 23 February 2021 records Mr Robinson acknowledging: 'there was some miscommunication in relation to expectations of the parameters'.[71] The Appellant later sought clarity because he understood that Mr Robinson had given permission to Mr Kerby.[72] During cross-examination Mr Robinson accepted that the 23 February 2021 minutes did not give clarity to the Appellant's question.[73] However, Mr Robinson confirmed that he had directed Mr Kerby not to enter the staffroom.[74]

• [60] In his evidence, Mr Kurt Richardson, Head of the Maths Department, USHS confirmed he was familiar with the return-to-work Protocol: "for a few days or maybe a week at most maybe - I could be wrong - before the incident with Michael Kerby coming into the staffroom".[75]

• [61] Mr Richardson knew Mr Kerby was entering the staffroom in early 2021 but had not been provided the parameters document by Ms Buxton or Mr Robinson and was not aware of its implementation until 10 February 2021.[76]

• [62] The Appellant submits it is clear the Protocol was being breached and senior staff failed to take steps to enforce it. After months of meetings prior to the implementation of the Protocol this was not a minor slip. This was not reasonable management action by the USHS.[77]

• [63] In evidence-in-chief, Mr Robinson said after the encounter he asked Mr Kerby for a written report and immediately told him that he was not to go into the staffroom again and: "reiterated that, made it, this time, very clear that that was the case".[78]

• [64] Mr Robinson agreed there had been miscommunication around the expectations of the parameters document.[79]

• [65] The Respondent submits the Appellant's evidence-in-chief in respect of the 23 February 2021 meeting about the encounter is inconsistent with the evidence, and that he was not satisfied with the meeting as to how Mr Kerby came to be in the staffroom. [80] The Appellant continued to agitate the matter via email.[81]

• [66] The evidence as submitted by the Respondent is that after the 17 February 2021 encounter Mr Robinson, 'undertook to make clear to Mr Kerby that he was still subject to a direction to not enter the staffroom and he did not do so'.[82]

• [67] The Respondent submits there was no unilateral change to the parameters document by Mr Robinson. At most, there was a failure to make sure that all appropriate staff were fully cognisant of its terms. However, staff were expected to act professionally and abide by the Code of Conduct including if they couldn't manage to avoid each other, whereby such stringent oversight was arguably unnecessary. In this instance the criticism of management action would only render it a blemish on otherwise reasonable management action taken in a reasonable way.[83]

• [68] In referring to the Appellant's encounter in the staffroom on 17 February 2021, Mr Richardson in evidence-in-chief said: "I asked Tony to come to my office with me to have a chat about what was going on. He was very frustrated about that - frustrated about - that the plan - that return to work plan that we're referring to hadn't been adhered to".[84]

• [69] On 18 February 2021 three grievances about the Appellant were made to Mr Robinson.[85] The catalyst for the lodging of the grievances was said to be the verbal encounter on 17 February 2021 between the Appellant and Mr Richardson. The complainants were asked to put their grievances in writing. Written grievances were submitted by Ms Landon on 19 February 2021; Ms Long on 4 March 2021; and Ms Watters on 9 March 2021.

• [70] Only one of the complainants, Ms Renae Watters, whose office was opposite Mr Richardson's office, heard the encounter.[86]

• [71] The Appellant submits that an inference can be drawn that sometime on 17 or 18 February 2021, the three complainants discussed what Ms Watters heard in SR 4 prior to making their complaints to the Principal.[87]

• [72] The Appellant submits that the Commission does not need to decide whether there was collusion but need only consider whether the investigators, Ms Dorries and Mr McMorrow, sufficiently investigated the issue to exclude such possibility.[88]

• [73] The Appellant claims that USHS failed to resolve or effectively manage a toxic environment in SR 4, actively ignored formal complaints against the Appellant when they arose, and the investigation process lacked natural justice and fairness. Further, it was contended that the Appellant was wrongly denied the right to internal review.[89]

• [74] The investigation was asserted to be deeply flawed and not conducted reasonably, nor were its outcomes reasonable. The Appellant submits the management action was not reasonable nor carried out in a reasonable way.[90]

• [75] The management of the investigation was carried out by two independent and experienced deputies who applied the relevant grievance policy.[91] In doing so, the Appellant was given every opportunity to understand and respond to the complaints. It was ultimately determined that the Appellant was in breach of the Code of Conduct and a decision was made to move him from SR 4 for a time to give everyone space to rebuild relationships. The Respondent submits the management action was reasonable and taken in a reasonable way.[92]

• [76] The Respondent further submits the Appellant has failed to discharge the onus of proof to satisfy the Commission he suffered an injury within the meaning of s 32 of the WCR Act.[93]

• [77] In Blackwood v Mana[94] it was held by Martin J that:

[23] A worker who claims an entitlement under the Act carries the onus of satisfying the relevant authority that s 32(1) applies and s 32(5) does not apply. These tests are to be considered separately. Clearly, if an alleged workplace injury is not covered by s 32(1), then no further inquiry is made. If the injury comes within s 32(1)(b), then s 32(5) must be considered.

Did the Appellant suffer an injury within the meaning of s32 WCR Act?

• [78] As a threshold question, the Commission must be satisfied that the psychiatric or psychological disorder has arisen out of, or in the course of, employment, and that the employment is the significant contributing factor to the injury.

• [79] In reaching a conclusion on that point, the Commission must consider the stressors nominated by the Appellant. If, during that process, the Commission decides that one or more of the stressors either cannot be established as a matter of fact or, if established, that there is no causal link, then such a stressor cannot be taken into account when considering s 32(5).[95]

• [80] It is only those stressors which are held to have had the necessary causal link which can be the subject of consideration as to whether or not they fall within s 32(5).

• [81] It is not in contention that the Appellant suffered from a psychiatric or psychological injury. However, what is in contention is whether the claimed injury arose out of or in the course of his employment. The employment must be a significant contributing factor to the injury.

• [82] In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said:

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.[96]

[T]he 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'.

Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.[97]

• [84] For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of 'important' or 'of consequence'.[98]

• [85] In Qantas Airways Ltd v Q-Comp Hall P was invited to elevate the word 'significant' to the same level as 'substantial. [99] His Honour said:

On balance, I am not prepared to accept the submission that "significant" bears the meaning of "large", "great", "weighty" or "substantial". I regret that I am unable to be more precise in fixing the meaning of "significant" as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as "strong", "important" or "of consequence".[100]

• [86] The employment factors do not need to be 'the' significant causal factor for the injury or psychological condition. It is sufficient that employment was 'a significant' causal factor for the purpose of s 32 of the WCR Act and within this context, significant must be given its natural meaning.[101]

• [87] The term 'employment' in s 32 of the WCR Act refers to what the Appellant actually did in his employment and not to the fact of being employed. As was observed in Croning v Workers' Compensation Board of Queensland, de Jersey P (as his Honour then was) held that the employment needs to be a 'real effective cause' of the injury and not merely the setting or background in which the injury occurs.[102]

• [88] What is advanced by the Appellant is that two work events caused him to suffer an adjustment disorder with anxiety and low mood.

• [89] The first event was not in my view causative of any psychological or psychiatric injury. Whilst the event may have been the precursor to the development of the Appellant's claimed injury, it was not in my view causative of any workplace injury.

• [90] In examination-in-chief, the Appellant was asked:

MR FORD: I should say - I should ask, rather, Mr Guandalini, did Glenn - sorry, I'll withdraw that. What - now, this encounter with Michael Kirby in the staffroom and Glenn Robinson's explanation about how it happened, what sort of impact did that have on your relationship with the workplace

THE APPELLANT: ---I was - surprised is an understatement. It was incredible that Glenn Robinson could be so incompetent as to not recognise the enormity of that simple act of allowing Michael Kirby back into our work area. It - and for him to say it was an oversight is - it's - it's disrespectful to Monique and myself. It's disrespectful to Linda Buxton and to Lisa Cooper who worked so hard to resolve this issue. I lost 100 per cent trust in Glenn Robinson to manage my emotional safety and Monique's emotional safety in the future, and I think all of that is - is amplified by the fact that when we had the meeting with him in the student-free days before the school year started, he'd already told Michael Kirby that he could re-enter the staffroom, and he - it - it just didn't become a priority for him, apart from the massive contravention of the document.[103]

• [91] At the highest, the Appellant was 'surprised'; it was 'disrespectful to Monique and myself'; and thus he lost trust in Glenn Robinson's ability to: "manage my emotional safety and Monique's emotional safety in the future."[104] The Appellant's evidence was that he told Mr Richardson: "Imagine if - imagine if Monique had walked into the staffroom. Imagine how much that would've set back her mental health progress."[105] The Appellant was concerned for the mental health of Ms Psaila. His frustration was borne out of perceived failing on behalf of USHS to protect Ms Psaila's mental health.

• [92] In his initial report of 30 August 2021, Dr Nandam does not draw a causal connection between the finding of Mr Kerby in SR 4 and the Appellant's adjustment disorder diagnosis.

• [93] In his report, Dr Nandam describes the 'Presenting Complaint' in the following terms:

Tony had become Moniques's partner around two and half years ago. When her problems at work started, they had not been in a relationship. He expressed frustration at the lack of progress in her case, which had led to conflict at school. Michael Kirby was removed from the staff room.

In late March 2021, Tony had a formal complaint against him lodges by Michael Kirby's friends. Tony was still going through his own separation which had turned acrimonious, which had left him feeling distant. He had struggles at work, feeling isolated. The complaints alleged he had called students 'bitches' and 'sluts', which Tony stated he had never done and that he did not use those words.[106]

• [94] Following the consultation on 30 August 2021, Dr Nandam expressed the following opinion:

Tony is at an impasse with his work situation at the school. This is complicated by his partner's conflict with the school and his ongoing separation.[107]

• [95] In the further report of 7 February 2022, Dr Nandam takes a more fulsome medical history. Relevantly, Dr Nandam records:

A week later, Tony received three separate formal complaints against him by friends of Michael Kirby. The complaints were over Tony's behaviour, including making sexual comments about students, during the past to years and alleged that these had been brought to his line manager without action. Before the complaints, Tony had never heard about these issues, despite doing regular performance review with his line manager and the Principal. He denied any alleged behaviours.

Tony then provided a written response to the complaints denying the behaviours and querying the timing of the allegations due to the proximity of Michael Kirby being banned from the staff room. The investigating deputy principal, Nick McMorrow, stated that they saw no evidence of collusion or relationship to the Michael Kirby issue. Tony felt that there was a lack of natural justice with no proper investigation in substantiating the serious allegations and ignoring the timing and context of the complaints.

Tony was subsequently issued five breeches (sic) of the Code of Conduct.

On 31 March 2021, due to worsening anxiety and low mood, Tony stopped work. He had lost confidence in the capacity of the school to provide a safe workplace. Tony noted the significant inconsistencies in versions of events within the leadership team, which had ultimately resulted in him being issued the Code of Conduct breeches. (sic) [108]

• [96] In the report of 7 February 2022, Dr Nandam provides the following opinion:

Tony has developed anxiety and low mood secondary to the inconsistent processes at his school surrounding both Michael Kirby and the subsequent allegations against him. These issues occurred at work and constitute a work based psychological injury.[109]

• [97] Putting to one side the fact that Dr Nandam has strayed into territory properly reserved for the tribunal of fact, the reports of Dr Nandem, do not draw a causal link between Event 1 and the Appellant's diagnosed injury.

• [98] I did not find Dr Nandam's reports of great assistance in having to determine the matters before the Commission. In Simon Blackwood (Workers' Compensation Regulator) v Mahaffey[110] Martin J identified the following three matters upon which a medical report should offer an opinion:

[10] Such a report should, at a minimum, discuss, and offer an opinion on:

(b) what the subject told the psychiatrist about the employment, and

(c) the causal relationship (if any) between the employment and the condition.[111]

[11] In the process of doing that, the psychiatrist should specifically consider the stressors nominated by the subject and express a view, on the assumption that they will be established, as to any causal relationship.

• [99] Dr Nandam's report did not give a clear opinion in respect of the part the nominated stressors played. In his oral evidence, Dr Nandam did say the following:

MR FORD: Dr Nandam, I wonder if you could briefly summarise for us your diagnosis of Mr Guandalini?

DR NANDAM: Yeah. Mr Guandalini presents with an adjustment disorder with [indistinct] anxiety and depressed mood. Now, adjustment disorder is a DSM diagnosis where one - psychiatric assessment indicates depressive symptoms and anxiety symptoms secondary to a specified stressor. And in my opinion, the stressor that caused his psychiatric symptomatology is the management [indistinct] high school.

• [100] The inconsistent processes involving Michale Kerby as referred to by Dr Nandam involved Ms Psaila. The dispute between Ms Psaila and Mr Kerby arose out of a departmental investigation alleging bullying. It did not directly involve the Appellant. The Appellant's only connection with that dispute came as a consequence of his personal involvement with Ms Psaila. It did not arise out of or in the course of his employment at USHS.

• [101] It will be recalled that the Appellant and Ms Psaila commenced a personal relationship sometime in mid-2019.[113] Ms Psaila made a complaint against the behaviour of Mr Kerby. He was a member of a 'friendship group' which was the subject of an acrimonious breakdown resulting in a souring of the relationship between Mr Kerby and Ms Psaila. A complaint was made by Ms Psaila against Mr Kerby. An investigation ensued and whilst Mr Kerby was found to not have bullied Ms Psaila, he had acted inappropriately. Mr Kerby received a formal caution which remains on his employment record.[114] Ms Psaila was aggrieved by the outcome.

• [102] Ms Psaila wanted Mr Kerby to be removed from the SR4 however that was not the outcome of the departmental investigation. Mr Kerby was ultimately moved out of SR 4 following the agitation of Ms Psaila and the Appellant and as a condition of their return to work.

• [103] The Appellant became heavily intertwined in the work issues involving Mr Psaila and Mr Kerby such that, in examination-in-chief, he gave this evidence: "... so I guess, Monique filed two complainants, an Education Queensland complaint, and also through my Workers' Compensation process, and the Education Queensland investigation found that Michael was guilty of various allegations that Monique had made."[115] He further told the Commission that: "... once I entered a relationship with Monique, I was - I was unwillingly dragged into the vortex."[116]

• [104] Whilst the Appellant became invested in Ms Psaila's work issues, he also appears to have been personally affected by them. In or around August of 2020, the Appellant took an extended period of sick leave.

MR FORD: And you told him about what had happened and your symptoms?

THE APPELLANT: Yeah. So similarly with the GP, Dr Nandam was already Monique's psychiatrist that was referred by Dr Farsan. So Dr Nandam already knew the backstory of Monique's situation, and, you know, my story is the - just a - an extension on that. He was supportive of my view of the situation. He didn't change any - like, there was no - like, he asked if the antidepressants were still being taken and that was all - you know, there was no change in medication at that point. It was just more of a - a validation of - of what I was experiencing, I guess.[117]

• [106] The medical certificate issued by Dr Zaer on 20 August 2020 recorded that the Appellant needed time to come to terms with the alleged bullying of his partner. Again, on 2 October 2020 Dr Zaed records that the Appellant is still struggling and unable to get to work.[118] On 13 November 2020 Dr Zaed issued a Medical Clearance Certificate and recorded: "Stress due to alleged bullying of partner at work."[119]

• [107] The Appellant disputed the argument advanced by the Respondent that his condition had 'waxed and waned' according to the stressors acting upon the Appellant at any one time.[120]

• [108] In cross-examination Dr Nandam agreed that the symptoms that he referred to in his final assessment of the Appellant, namely, easily overwhelmed, hypervigilant, struggling to relax and negative self-talk were typical symptoms of an adjustment disorder. Moreover, he agreed that the symptoms were an extreme or excessive response to a stressor. He accepted that the purpose of the continuation of a medication regime was to prevent an excessive response, should there be a new stressor. Continuing the medication was also to prevent a worsening of the condition. He went on to observe:

DR NANDAM: It - it's more - more nuanced than that. I mean, once you've had two depressive episodes, statistically, there's evidence now that people who remain on antidepressants whilst well are much more likely to have a further episode, no matter what the cause.[121]

• [109] I do not accept the Appellant's submission that Dr Nandam expressed the view that the Appellant's condition had 'resolved'. Dr Nandam's reference to a condition resolving was in response to the following question in cross-examination:

DR BROOKS: Yes. Okay. Thank you. And the expectation is that somebody who's suffering an adjustment disorder as a result of a particular stressor, they're expected to recover in time, provided the - - -?---[indistinct] - - - stressor is removed?---

DR BROOKS Resolved. Yes. And the medication prescribed is to help with the symptoms; is that correct?

DR NANDAM: Yep [indistinct] depressive symptoms.[122]

• [110] In the report of 30 August 2021 under the heading 'Past Psychiatric history and treatment', Dr Nandam recorded that the Appellant had attended counselling and started venlafaxine during his marital separation.

• [111] The evidence before the Commission was that in mid-2019, the Appellant spent two weeks as an in-patient at the Caloundra Private Clinic where he was diagnosed with an adjustment disorder and received acute psychiatric care.[123]

• [112] It is not contended by the Appellant that he suffered an aggravation of a pre-existing condition. Rather, what is contended is that the Appellant suffered a new injury.

• [113] As Dr Nandam observed during cross-examination, there is evidence that people who remain on antidepressants whilst well are much more likely to have a further episode, no matter what the cause.[124] Dr Nandam further accepted in cross-examination that, notwithstanding the fact that the Appellant had continued to take venlafaxine, he succumbed to further stressors which appeared in his life and which were sufficient to cause the symptoms to 'come back'.[125]

• [114] I am mindful of what was said by Hall P in Q-COMP v Foote (No. 2):[126]

... a fragile psychological makeup is no more a bar to entitlement to benefits under the Act than an eggshell skull. Where the psychological disorder develops out of a worker's perception of reasonable management action been taken against the worker, it is withdrawn from the definition of injury (see s. 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of "injury", whatever the worker's perceptions may have been (see s. 32(5)(a)). However, those very significant statutory qualifications aside, an insurer takes a worker with all his faults.[127]

• [115] As the evidence demonstrates, throughout this entire period, the Appellant had a series of personal issues which has had a negative impact on his mental health. The Appellant was involved in acrimonious divorce proceedings involving the custody of his children and issues involving his partner's employment at the school. Those issues were present at the time of the Appellant's alleged workplace injury and were continuing features well into 2023.

• [116] As was observed by Martin J in Simon Blackwood (Workers' Compensation Regulator) v Mahaffey:

[55] Where the only cause of a personal injury is reasonable management action etc. then s 32(5) will work to exclude it from the definition of "injury" in s 32(1). The difficulty, as has become painfully obvious over the years, is where a psychiatric or psychological disorder can be seen to have arisen from a mixture of actions including reasonable management action. Experience in this jurisdiction shows that it is not uncommon for psychiatric disorders to be the result of a number of factors.[128]

• [117] It is not possible to clearly separate the various contributing factors to the onset of the Appellant's psychological or psychiatric injury. Dr Nandam records that the Appellant was at an impasse with his work situation which was complicated by his partner's conflict with the school and his ongoing separation.[129]

• [118] The Appellant bears the onus of establishing his entitlement to compensation. That is, it is for the Appellant to demonstrate to the Commission that the Respondent's decision was wrongly made. The standard of proof is on the balance of probabilities. Proof on the balance of probabilities requires actual persuasion.[130]

• [119] As was observed in Taylor v Workers' Compensation Regulator, [131] the Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.[132]

• [120] Having considered the totality of the evidence, I fail to be persuaded that the psychiatric or psychological disorder has arisen out of, or in the course of, employment, and that the employment is the significant contributing factor to the injury.

• [121] I cannot separate out the other 'complicating' factors in the Appellants life, all of which impacted on his mental health. Both the matrimonial and custody issues resulted in the Appellant's hospitalisation in August 2019. Moreover, the work issues involving Ms Psaila were ongoing. Both factors were present at 17 February 2021 and as noted in the report of Dr Nandam, continued into 2023. Neither of those identified issues arose out of or in the course of his employment.

• [122] In Croning v Workers' Compensation Board of Queensland[133] it was held that employment must be the real or effective cause of the injury, not merely the setting in which it occurred. The relevant passage of that decision is as follows:

Now but for those work conditions, this particular appellant's problem would not have arisen. That does not however necessarily mean that the work conditions were a significant contributing cause of the condition. Compare the distinction between a causa sine qua non and a causa causans or proximate cause (see Tophams Ltd v Sefton (1966) 1 All E.R. 1039, 1044 and Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) A.C. 663, 687). The necessity for the former does not mean that on an ultimate assessment, it must be regarded as a significant cause. As said in Tophams, the latter is the 'real effective cause', the former 'merely an incident which precedes in the history or narrative of events'. There may of course be two or more factors which might each be regarded as 'significant' contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise. Unless, here, the circumstances of the employment, being necessary background at least, must, because an essential prerequisite to what occurred, be regarded as a significant contributor, I should in principle respect the Magistrate's factual conclusion as reasonably open and dismiss the appeal.

• [123] Should I be in error in respect of whether the Appellant had a work-related injury, I will proceed to examine whether the Appellant's injury is withdrawn from s32(1) by operation of s35(5).

Reasonable Management Action taken in a Reasonable Way

• [124] In Davis v Blackwood (Workers' Compensation Regulator)[134] Martin J wrote that the approach to be adopted by the Commission in dealing with s 32(5)(a) of the WCR Act of the decision was 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 consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.

• [125] In WorkCover Queensland v Kehl[135] his Honour President Hall said that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively. Whilst considerations of fairness will always be relevant, reasonableness does not necessarily equate with 'industrial fairness'. It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account.[136]

• [126] Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances be considered a 'blemish'. Management action does not need to be without blemish to be reasonable.[137]

• [127] For the reasons which follow, I am of the view that the management action taken by the employer was reasonable and taken in a reasonable way.

• [128] The school had an obligation to deal with the formal grievances. The evidence is clear that the grievances could not be satisfactorily resolved informally through mediation and accordingly, they were managed through the process set out in the Department's Managing employee complaints.

• [129] The complaints against the Appellant were dealt with as Local Action. Local Action is defined as the primary stage of the employee complaints process where a written complaint is made, addressed and responded to at the workplace level.[138]

• [130] Mr Robinson appointed Mr Nick McMorrow and Ms Kelly Dorries to manage the grievance process. Mr Robinson selected Mr McMorrow and Ms Dorries because neither had been involved in related complaints which provided them with a degree of independence;[139] Ms Dorries was new to USHS; and both had previous experience in dealing with staff grievances.

• [131] The approach taken by Mr McMorrow and Ms Dorries in dealing with the written grievances was an orthodox one.

• [132] In a letter dated 20 March 2021 the Appellant was formally advised of the receipt of the three written grievances and the process which would be followed to deal with them.[140] Subsequently, the Appellant met with Mr McMorrow and Ms Dorries to discuss the grievances and the review process.

• [133] The Appellant was given an opportunity to respond to the grievances and an extension of time granted to make his written submissions. The extension was granted because: "... we genuinely wanted him, you know, to provide the best response that - that he could, so we didn't want to rush him on that. So we gave him a little bit, you know, extra time to do that."[141]

• [134] In the Appellant's response to the grievances, he detailed the following issues as follows:

(a) the misrepresentation by the complainants of my behaviours over the last 2 years focussing on the personal events which led to those behaviours being present and observed in my workplace;

(b) concerns that my repeated low-level behaviours over a 12 month period were never directly raised with me;

(c) the cultural issues that I believe are present within the Math's staffroom at USHS;

(d) identification of allegations that I believe are untrue;

(e) suggested process to resolve the issues raised by the complainants.[142]

• [135] A redacted copy of the Appellants response was provided to the complainants in the hope that by sharing this response: "... with the complainants to - I guess double-check whether - you know, in light of that, are you willing to sit down - you know, with Tony, and you know, try to mediate this out and - and come up with a resolution."[143]

• [136] It was contended by the Appellant that the timing of the lodgement of the grievances made the day after the encounter with Mr Kerby in the staff room: "suggested some coordination or collusion between the complainants so as to disingenuously attack Mr Guandalini."[144] What was submitted by the Appellant was that it was not necessary for the Commission to determine whether or not there was collusion. It was only necessary for the Commission to be satisfied that Ms Dories and Mr McMorrow, sufficiently investigated to exclude such a possibility.

• [137] Mr McMorrow was alive to the potential that there may have been some coordination of approach or collusion between complainants. In examination-in-chief of Mr McMorrow, the following was asked:

DR BROOKS: But did you talk with them separately or together?

MR MCMORROW: Yeah. Look, we always do that separately. We never talk to people together. We investigate lots of things in schools. More often than not, it's - you know, issues with kids. We would never ever interview kids as a group. And by interviewing people separately, you're much better able to gauge whether there's any, you know, collusion, whether people have come up with a - you know, a joint story together. And so lots of different - you know, questioning and rephrasing of questioning in those types of interviews, just to gauge the validity of - of the - of the reports that they're - they're - they're making.

DR BROOKS: What did you and Ms Dorries tell them in respect of other complaints? Or the - the other two complaints, I should say? ---

MR MCMORROW: Yeah, we didn't tell them anything about any other complaints. Anything that had come through with the names of the other people in were redacted, that tended to be later on, where we - we had responses back, so you know, for example, when Mr Guandalini wrote his written response back and he made reference to the three complainants. So in the copy we showed Renee Watters, we'd redacted the other names out of it, so - to try to keep that as clean as possible so they weren't aware of who else. So yeah, we also asked them to maintain strict confidentiality. They weren't to talk to anyone else about the case. We checked, "Have you discussed this with anybody?" So - - -

MR MCMORROW: Yeah, they hadn't. So their reasoning for the complaints or why they came in at the same time, there was a - I guess a culminating incident that had happened that they were aware of, that kind of shook them up a bit and that was an incident where Mr Guandalini had - I guess it was a occupational violence incident where he'd verbally had a go at the head of department, Mr Richardson. They were aware - heard that, and I guess they - they didn't use this la - all of them didn't use this language, but I guess my summary is that for each of them, it was kind of like the straw that broke the camel's back. It was like there'd been stuff going on for a period of time that they were able to all report to us, and that culminating incident was their reason why they said, look, that - you know, we need to do something.[145]

• [138] In examination in chief, Ms Dorries explained that each of the complaints were interviewed separately. Each of the complainants identified the altercation between the Mr Richarson and the Appellant as the catalyst for raising the grievances. In Examination-in-Chief, Ms Dorries told the Commission:

MS DORRIES: They talked about - all three, separately, had different examples. However, then within the documents and the complaints that they had listed, they all had their different examples of things that were making them uncomfortable, that were making them feel intimidated. One of the ladies was very emotional and broke down and was very, very upset when they were talking to us. Another one was visibly upset, not at the same level as the other one. And it was just - you could tell that they were very uncomfortable coming in and speaking to us about this.[146]

• [139] Whilst the Appellant believed that a number of the facts identified in the complaints were untrue or inaccurate, he acknowledged in his response that: "...the behaviours described in this complaint are true and correct. I would summarise these behaviours as withdrawn, distracted, frustrated and generally being introverted and not adequately aware of how my behaviours could be received by those around me."[147]

• [140] It was further acknowledged by the Appellant that he was obviously unaware of the impact of his behaviour and expressed the view that the: "formal complaint should never have been lodged because, if given a chance, I would have adjusted my behaviours accordingly in a timely manner."[148]

• [141] The Appellant concludes his written response with an apology for the way his behaviours have been interpreted as being personally directed at complainants, and the recognition that he was unaware of the impact of his behaviours. Moreover, he expressed a willingness to apologise for any behaviour that the complainants perceived as impolite or dismissive and an acceptance of guidance from the leadership team as to how the relationships are best mended.[149]

• [142] A copy of the letter dated 31 March 2021 was provided to the Appellant, outlining the outcome of the grievance process and a meeting was arranged to talk: "him through the decision". [150]

• [143] A meeting was held on 1 April 2021 between the Appellant, Mr McMorrow and Ms Dorries. At that meeting, the Appellant declined to read the outcomes letter but asked for Mr McMorrow and Ms Dorries to paraphrase it or explain what it contained.[151]

• [144] Ms Dorries gave evidence of her recollection of the meeting of 1 April 2021:

DR BROOKS: All right. And when you communicated the outcome to Tony, did - it was just the letter, or did you meet with him as well. I think you said you met with him as well, to give him that letter? -

Ms DORRIES: Yep. So Nick and I met with Tony to give him the letter, yes. And we talked him through the decision and talked to him about the willingness and openness of the head of department for science to have Tony be a part of their staffroom. We picked that staffroom for a couple of reasons. One is there was a neutral person in there, Ryan Wake, that Tony was friends with, so we thought that's - we'll put him in a room where he has someone that he is friends with. Anthony Clancy said that he had a professional relationship with Tony prior. I'm not sure if he taught in the department at some stage, and I actually line-managed the head of department for science and they had a really lovely atmosphere and collegiality in their staffroom, so I firmly believed that we were exposing him to some really good role modelling in that staffroom and if he could see that, that may also help aid the recovery.

DR BROOKS: Was he accepting of the findings that you'd provided to him? ---

MS DORRIES: Verbally in the staffroom - sorry. In our office, when we met with him, he didn't indicate to us that he wasn't. He asked when he should move, how he would get keys. There was no indicator that that was a big issue, no.[152]

• [145] The review of the grievances resulted in an outcome that required the Appellant to relocate from the maths staffroom to the science staffroom. The rationale for that decision was explain in the letter of 31 March 2021:

On your return to work we will require you to move to Staffroom 1 and join the Science Faculty. Your timetable will remain predominately Maths classes. This decision is to support you and the complainants with the time and space to rebuild your professional relationship. It will limit contact to professional meetings only. You will be required to attend Maths Faculty and planning meetings and work collaboratively with your colleagues as outlined in your role description. Please take this opportunity for a fresh start in a new staffroom. You will have the chance to develop appropriate professional behaviours in a new informal setting. I also advise that you must follow the Code of Conduct at all times, especially the sections that have been outlined to you.[153]

So overall, we could see a breakdown in that professional relationship between Lisa Landon, Renae Watters, and Melissa Long in terms of them being able to conduct themselves professionally in the staffroom. And the concern with moving forward was if we obviously leave them all in there together, how we facilitating to create a better workplace. So that's where we determine and said for Tony to move to the science staffroom where he had really good role morning - modelling within that staffroom of people that get along, interact really well, so that he could have that support if he needed.[154]

• [147] Whilst the Appellant was unhappy with the outcome it does not follow that the process followed by the school was unreasonable. [155]

• [148] One of the criticisms of the grievance process was that the outcomes letter was vague. What was submitted was that the correspondence of Mr McMorrow and Ms Dorries lacked particularity. It was submitted that: "If this finding was to be used to any serious action against Mr Guandalini, it ought to have been determined to a relatively high and defensible standard."[156]

• [149] It was contended by the Appellant that the school substantiated several allegations against the Appellant which were unfounded and imposed disciplinary action against him that was disproportionate to the substantiated allegations.

• [150] The Appellant elevates the review undertaken by Mr McMorrow and Ms Dorries to a level akin to a disciplinary process.

• [151] The nature of the review undertaken by Ms Dorries and Mr McMorrow needs to be put into perspective. First, it was a process at the lower end of the measures available to deal with grievances raised by employees. Secondly, notwithstanding what was contended by the Appellant, it was not a disciplinary process, nor did the process result in a disciplinary outcome.

• [152] What was contended by the Appellant was that the school had failed over a considerable period to effectively manage what was described as a 'toxic environment' in SR4; 'the culture in SR4'; the 'wider cultural malaise in SR4'; and a refusal to allow the Appellant to give evidence that he considered relevant.[157]

• [153] The Appellant's contentions misapprehend what is involved under the Departmental grievance procedure. Both Mr McMorrow and Ms Dorries were charged with the responsibility of undertaking a review of three grievances. The parameters of that undertaking were contained within the three individual written complaints. It was not for either Mr McMorrow or Ms Dorries to embark on some wider unconfined review into the culture or toxicity in SR4.

• [154] It was apparent to Mr McMorrow and Ms Dorries that the prospect of some form of mediated or conciliated outcome with the complainants and the Appellant was impossible. The Appellant's move to the Science Staffroom would give both the complainants and the Appellant an opportunity to rebuild their professional relationship.[158] The move was not regarded as permanent and the school offered the Appellant some support mechanisms.[159] Mr McMorrow explained that it is not uncommon for staff to be removed from staffrooms for various relationship breakdowns.[160]Mr McMorrow consulted with the Queensland Teachers Union to ensure that 'industrially' the school did not '...infringe on the rights of any staff member.'[161]

• [155] It was submitted that the Appellant was denied an opportunity to make an application for internal review contrary to Departmental policy. The outcome letter stated that the Appellant could, if dissatisfied by the decision, make an application for an internal review. In relation to the internal review, Ms Dorries said:

MS DORRIES: We did have a statement in there towards the end that he could request an internal review. When Tony put that internal review in, we sought the advice of Chris McKay from the North Coast Department of Education office and he advised us that we had misinterpreted the complaints procedure and that the review was for the people that had put the complaint in if they were not happy with the outcome of the investigation, they weren't for Tony, which we were not aware of.

MS DORRIES: Nick or I were not aware of that.[162]

• [156] The written advice given to the Appellant regarding his right to make an internal review was made in error. The policy allows a complainant to make a request for an internal review and not the person who was the subject of the grievance. The Appellant had other avenues available to him to seek a review if he regarded the outcome as unfair or he was otherwise aggrieved.

• [157] The exercise for the Commission is not to determine what might have been reasonable management action. Rather the task of the Commission is to determine whether the management action was reasonable and undertaken in a reasonable way.[163]

• [158] Reasonable management act permits failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result.[164]

• [159] As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs, Ex parte Lam:[165]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

• [160] In considering whether there has been a lack of procedural fairness the Commission must ask: "has there been a practical injustice that could have materially affected the decision?" On any view of the evidence, the answer to that question must be, no.

• [161] For the reasons advanced above, I consider that the Appellant was provided procedural fairness during the grievance process. Moreover, having considered the evidence and submissions, I am satisfied that the management action was reasonable and taken in a reasonable way.

2. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 25 March 2022 is confirmed.

1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing by 4.00 pm on 18 July 2025; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

[1] Appellant's closing submissions filed 22 March 2024, [21]; Respondent's closing submissions filed 13 May 2024, [3] - [4]; Exhibit 18.

[2] Respondent's closing submissions filed 13 May 2024, [7].

[3] Appellant's closing submissions filed 22 March 2024, [22].

[5] Respondent's closing submissions filed 13 May 2024, [4], [5].

[8] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(1).

[9] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(5)(a).

[10] Appellant's Statement of Facts and Contentions filed 6 July 2022, [2]-[22].

[11] Appellant's closing submissions filed 22 March 2024, [4] Exhibit 1 - Draft Return to Work Plan dated 5 November 2020 (referred to as 'the parameters document').

[12] Appellant's closing submissions filed 22 March 2024, [5].

[14] Appellant's closing submissions filed 22 March 2024, [10].

[15] Queensland Government - Code of Conduct for the Queensland Public Service - 1 January 2011.

[16] Appellant's closing submissions filed 22 March 2024, [11]-[13].

[25] TR3-118, LL22-23; TR1-33, LL22-23.

[26] TR1-33, LL39-40; TR2-30, LL11-49; TR2-31, LL1-29.

[29] Respondent's submissions filed 13 May 2024, [29].

[33] Respondent's closing submissions filed 13 May 2024, [32]-[33].

[39] Appellant's closing submissions filed 22 March 2024, [28].

[41] Respondent's closing submissions filed 13 May 2024, [48].

[43] Appellant's closing submissions in reply filed 5 June 2024, [6].

[46] Exhibit 26, WCMC dated 30 April 2021.

[54] Exhibit 26, Workers' Compensation Medical Certificate dated 13 July 2021.

[56] Exhibit 26, Workers' Compensation Medical Certificate dated 14 August 2021.

[58] TR3-81, LL20-31; Exhibit 26, p 147.

[59] Respondent's closing submissions filed 13 May 2024, [57].

[63] Appellant's closing submissions filed 22 March 2024, [29].

[65] Appellant's closing submissions filed 22 March 2024, [30].

[67] Groos v WorkCover Queensland [2000] ICQ 44; (2000) 165 QGIG 106 (President Hall).

[68] Respondent's closing submissions filed 13 May 2024, [61].

[69] Appellant's statement of Facts and Contentions filed 6 July 2022, p8.

[71] Exhibit 2, p 3 (second discussion point, left hand side).

[76] Respondent's closing submissions filed 13 May 2024, [83](d).

[77] Appellant's closing submissions filed 22 March 2024, [79]-[80].

[78] TR3-100, LL23-32; Respondent's closing submissions filed 13 May 2024, [79].

[81] Respondent's closing submissions filed 13 May 2024, [82]; Exhibit 10, second bundle of emails.

[85] Exhibit 23, p 131, first dot point.

[86] Appellant's closing submissions filed 22 March 2024, [85]; TR3-38, LL26-30.

[88] Appellant's closing submissions filed 22 March 2024, [93].

[92] Exhibit 21, pp 3-4; Respondent's closing submissions filed 13 May 2024, [120].

[93] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447.

[94] [2014] ICQ 27. 8.

[95] Simon Blackwood (Workers' Compensation Regulator) v Chapman [2016] ICQ 011, [22].

[96] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; [2006] 1 Qd R 519, 529.

[98] Q-Comp v Green (2008) 189 QGIG 747.

[99] [2009] QIC 20; (2009) 191 QGIG 115.

[101] Fairley v Q-Comp (2008) 187 QGIG 150.

[102] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[110] [2016] ICQ 010.

[117] T1-30, LL17-24 (emphasis added).

[120] Respondent's closing submissions filed 13 May 2024, [58].

[126] [2008] ICQ 42.

[127] Q-COMP v Foote (No. 2) [2008] ICQ 42, p.9.

[128] [2016] ICQ 010, [55].

[130] Nguyen v Cosmopolitan Homes [2008] NSWCA 246. See also: Nguyen v Cosmopolitan Homes per: McDougall J (McColl and Bell JJA agreeing).

[131] [2017] QIRC 6.

[133] [1997] ICQ 41; (1997) 156 QGIG 100.

[134] [2014] ICQ 9, [47].

[135] [2002] QIC 23; (2002) 170 QGIG 93.

[136] Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97, Merrell DP, [22] - [29].

[144] Submissions of the Appellant filed 22 March 2024, [10].

[156] Submissions of the Appellant filed 22 March 2024 at para. 104(c).

[163] Davis v Blackwood [2014] ICQ 009, [47].

[164] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.

[165] (2003) 214 CLR 1, [37].