O'Neil v Workers' Compensation Regulator [2022] QIRC 310

Queensland Industrial Relations Commission|2022-08-09|Before: Mr P

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - Where

psychological / psychiatric injury is accepted - whether the psychological / psychiatric injury arose out of or in the course of employment - whether employment was the major significant contributing factor to psychological / psychiatric injury - whether psychological / psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way - appeal dismissed.

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 10

Davis v Blackwood [2014] ICQ 009

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Prizeman v Q-COMP [2005] QIC 53; (2005) 180 QGIG 481

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

Mr P Rashleigh of counsel instructed by Shine Lawyers

Ms L Willson of counsel directly instructed by the Workers' Compensation Regulator

[1] Mr Nathan Wade O'Neil is and was employed by RoadTek, a commercial business within the Department of Transport and Main Roads in a full-time capacity as Coordinator (Radio Network).

[2] Mr O'Neil's role involves managing the Department's land-based very high frequency ('VHF') and high frequency ('HF') communication networks and associated fixed and variable assets and infrastructure located throughout Queensland.1

[3] Mr O'Neil has worked for Queensland Transport since 7 February 2005. He was the Customer Development Coordinator for RoadTek from 2010 and assumed the duties of his current position on or about 20 June 2013.2

[4] Mr O'Neil applied for compensation for an injury sustained in the workplace following the receipt of a medical certificate dated 24 June 2019 diagnosing Mr O'Neil with anxiety and depression.

[5] In a decision dated 13 March 2020, the Workers' Compensation Regulator (the Respondent) confirmed a decision by WorkCover Queensland to reject Mr O'Neil's application for compensation.

1 T1-6 l46 - T1-7 l31; Exhibit 1.

2 T1-6 ll3-11.

Mr O'Neil is a worker within the meaning of the WCR Act

[6] It is mutually understood that Mr O'Neil was a worker within the meaning of s 11 of the

[7] In this appeal, it is necessary to consider whether Mr O'Neil has sustained an injury within the meaning of s 32 of the WCR Act.

Mr O'Neil sustained a personal injury in and around May 2019

[8] It is matter of common ground that Mr O'Neil sustained a personal injury of a psychological or psychiatric nature. The evidence of Mr Bob Thomas, General Practitioner at the Mt Ommaney Family Clinic, is that Mr O'Neil suffered from anxiety or depression in and around May 2019.

[9] Mr O'Neil contends that his personal injury arose out of, or in the course of, his employment and the employment was the major significant contributing factor to the injury.3

[10] The Respondent is not satisfied that Mr O'Neil's injury arose out of, or in the course of his employment. The Respondent says that Mr O'Neil's employment was merely the setting in, or against which, any injury occurred and as such, under s 32, any alleged injury is not compensable.

[11] Further, the Respondent is not satisfied that Mr O'Neil's employment was the major significant contributing factor to his injury and says it believes that to the extent that employment contributed to the injury, it was Mr O'Neil's perception (as opposed to the reality) of his employment and management action that cause his injury.

[12] Mr O'Neil says that his injury is not excluded from the definition of injury because it does not arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment, nor his expectation or perception of reasonable management action being taken against him.4

[13] The Respondent contends that Mr O'Neil's injury is withdrawn from being a compensable injury by way of operation of s 32(5)(a) of the WCR Act because any psychological injury arose out of or in the course of reasonable management action taken in a reasonable way by Mr O'Neil's employer in connection with Mr O'Neil's employment.

His injury arose out of or in the course of his employment;
The employment is the major significant contributing factor to the injury;
The injury did not arise out of or in the course of:

reasonable management taken in a reasonable way by the employer in connection with his employment;
his expectation or perception of reasonable management action being taken against him.

[15] The relevant part of the legislation is set out below:

(1) An injury is personal injury arising out of, or in the course of, employment if -

(a) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

...

(3) Injury includes the following-

...

(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-

(i) a personal injury other than a psychiatric or psychological disorder;

(ii) a disease;

(iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.

...

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

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

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

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

_Examples of actions that may be reasonable management actions taken in a reasonable way - _

action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker.
a decision not to award or provide promotion, reclassification or transfer of or leave of absence or benefit in connection with the worker's employment.

Mr Nathan Wade O'Neil, the Appellant
Mr Gregory Brown, former training instructor for RoadTek
Mr Michael O'Brien, former private contractor for RoadTek
Dr Bob Thomas, General Practitioner
Dr Karen Chau, Psychiatrist

Mr Gary Coop, Fleet Manager, RoadTek
Mr Kevin Taylor, Communications Technician, RoadTek
Mr Gavin Paine, former Executive Director, RoadTek
Ms Katerina Allen, Administration Coordinator, RoadTek

[18] Mr O'Neil's representative filed his Statement of Facts and Contentions on 14 July 2020.

[19] In Annexure D to his Statement of Facts and Contentions, Mr O'Neil's stressors are listed as:

Excessive workload primarily between the beginning of 2018 to May 2019.
Lack of appropriate support to perform the workplace tasks primarily between the beginning of 2018 and May 2019.
Lack of appropriate support for periods of leave primarily between the beginning of 2018 and May 2019.

[20] The Respondent filed a Statement of Facts and Contentions on 8 September 2020 and an amended Statement of Facts and Contentions on 6 December 2021.

[21] A hearing of the matter was held over four days in Toowoomba from 6 to 9 December 2021.

[22] I am approaching consideration of this appeal by way of grouping the Statement of Facts and Contentions of the parties, the relevant evidence and submissions together, rather than rehearsing the case for each party.

[23] Following consideration of the material and submissions, I will consider the questions to be answered in deciding the appeal.

[24] In order to consider the matters required to determine this appeal, it is necessary to consider the extensive evidence before the Commission to understand Mr O'Neil's role, the kind of work he undertook, the patterns of travel and office time involved, and the support provided to him to do his job.

[25] Mr O'Neil says the following with respect to his role with the employer:

(a) it required him to be responsible for the management of a state-wide radio network;

(b) the network is a mixture of leased and owned sites spread across approximately 50 locations throughout Queensland;

(c) the position is to manage the Department's state-wide communications sites and associated

infrastructure, communication systems, fixed and mobile assets, to engage with customers, stakeholders and land owners;

(d) he was responsible for monitoring and maintaining a range of assets including radio towers and associated equipment throughout Queensland to sure that these assets remain fully operational and to maintain their security and integrity.5

[26] Mr O'Neil says that he is the only person (within the Department) specifically trained and with the necessary experience to carry out the unique and skilled demands of his position, including his knowledge regarding the digital HF network (one of the two networks operated by the employer).

[27] The Respondent admits that Mr O'Neil is the only person in the Department with technical experience in the digital HF network but says that there are a number of persons within the Department who are able to carry out aspects of Mr O'Neil's position. To the best of the Respondent's knowledge, Mr O'Neil has no formal qualifications in radio operation, inspection or maintenance but is self-trained in the digital HF network and has some technical knowledge of it.

[28] The Respondent says that an employee named Mr Kevin Taylor is a qualified radio technician employed by the Department and is very familiar with and qualified in the inspection, repair and servicing of the VHF equipment. The Respondent further says that on the maintenance runs, Mr Taylor would inspect and service the radio and similar equipment and that Mr O'Neil would inspect towers and the like. Mr O'Neil would also undertake whipper snipping, fence repair and similar tasks at the sites.

[29] Mr O'Neil said that there was a budgetary allocation for Mr Taylor to attend one of the three monthly maintenance runs. This was because Mr Taylor's role was technical and only one of the maintenance runs each year was focused on technical maintenance.6

[30] Mr Taylor gave evidence that he works for RoadTek as a communications technician and that over the period between 2018 and 2019, he undertook field trips with Mr O'Neil.7 Mr Taylor said that on those field trips, he would 'do the...technical stuff to test the equipment' and that Mr O'Neil would accompany him and 'did a lot of the driving, and he would tidy up the compounds and check towers and things like that while I did the technical stuff'.8

[31] Mr Taylor recalled that field trips would be 'sort of like a six-week stint. We'd do 10 days on, then come back for four days, then leave again for 10 days; four days off, then do that three times'. Mr Taylor recalled that 'we usually had every Sunday off when we were away' and that 'the average day would be eight and a half...we would quite often do 10- hour days, sometimes 12-hour days, I suppose.'9

[32] Mr Coop, Fleet Manager, described Mr O'Neil's role as involving maintenance of the radio network, ensuring the network was safe and compliant and looking at 'the upcoming capital type works that he felt the network needed'.10 Mr Coop expected that Mr O'Neil

5 Appellant's Statement of Facts and Contentions filed 14 July 2020.

6 T1-22 ll11-16.

7 T4-2 l41 - T4-3 l2.

8 T4-3 ll5-9.

9 T4-3 ll28-47.

10 T3-14 l9-12.

would work autonomously, manage his own workload, supervise staff if required, make informed decisions and provide Mr Coop with information at Mr Coop's level.11

[33] When asked about what support was provided to Mr O'Neil to perform his role, Mr Coop said that Mr O'Neil was assisted by Mr Taylor where required. Further, if there was a need for another person to travel with the radio technician, this was either arranged locally or out of Brisbane. Mr Coop also said that there was a dedicated administration assistant named Ms Katerina Allen, and a second person who could book travel if Ms Allen was unavailable.

[34] Mr Coop was asked about the management structure when Mr O'Neil was working in the field or not in the workplace. Mr Coop said that in between the two major service runs each year, there could be planning for identified capital works and that there was administrative compliance-type work that needed to be done between those maintenance runs. Mr Coop said that depending on the length of planned leave Mr O'Neil was taking, Mr Coop would decide if there was a need for someone else to relieve in the role. Mr Coop said that if Mr O'Neil was not around, it would be rare to plan capital works and that these could easily be put off if Mr O'Neil was planning time off.12

[35] Mr Coop said that during the Newman era when RoadTek stopped taking apprentices on, the training instructor for the apprentices, Mr Gregory Brown, experienced a dramatic decrease in his workload. At that point, Mr Brown 'came across and started assisting...on radio network maintenance and some upgrade work'.13 Mr Coop said that Mr Brown's role prior to retiring at the end of 2018 was assisting Mr O'Neil on radio network works. Mr Coop was taken to a document Mr O'Neil had prepared which stated that the use of Mr Brown as a temporary assistant would not be required after 30 June 2017. Mr Coop said that he had asked Mr O'Neil about this and that Mr O'Neil had said that a lot of the work had been done to upgrade sites and that the work had dropped away.14

Length of workdays when in the field and in the office

[36] Mr O'Neil says that he was required to work up to 14 hours per day, 10 days per fortnight and that due to the large geographical area covered, he was required to travel significant distances to perform his duties.15 Mr O'Neil said that the maintenance program involved visiting each site every six months and that the inspections were done by way of two sets of inspections each year. Mr O'Neil said that the inspections would take around 3 months with travel time.16

[37] Mr O'Neil was asked more about his hours and work days under cross-examination. Mr O'Neil said 'we were allowed to work up to 14 hours a day, because some sites are very remote and it takes a lot of time to get to those sites in travel time and then the - obviously the time on site as well. So, yes, there was preapproval to work up to 14 hours a day...'.17

11 T3-14 ll16-20.

12 T3-15 ll7-19.

13 T3-15 ll34-41.

14 T3-16 ll14-24.

15 T1-11.

16 T1-1 ll1-17.

17 T1-66 ll37-44.

[38] Mr O'Neil was asked how often he worked 14 hours a day. Mr O'Neil said that 'it wouldn't be all that often'. It was put to Mr O'Neil that the exhibit listing his work hours did not show any days where he worked for more than 14 hours, 18 Mr O'Neil said that there would not be any days where he worked more than 14 hours and he noted that the document did not include other activities done at the start or finish of the day.19 Mr O'Neil agreed that on the document capturing his work hours, there were 11 days when he was in the field where he worked 12 hours or more. Mr O'Neil also agreed that there were no days where he worked 14 hours in the relevant period for this appeal, being 1 January 2018 to mid-2019.20

The extent of travel Mr O'Neil was required to undertake

[39] The Respondent agrees that at times, Mr O'Neil's position and duties required him to travel significant distances in performing his duties but says that Mr O'Neil chose to travel more than was required by the position and chose to continue doing so after being counselled against this.

[40] The Respondent says that Mr O'Neil chose to undertake travel after 6 December 2018 despite his line manager suggesting and counselling him that the role required him to coordinate more, as opposed to physically attending sites himself. Mr O'Neil was told that he could arrange for people internally or externally to attend to matters.

[41] The Respondent corroborated Mr O'Neil's evidence that his role required the coordination of six-monthly maintenance site visits across Queensland, adding that the trips generally occurred between February-March and August-October.

[42] The Respondent says that Mr O'Neil had preapproval to work up to 12 hours per day when working away from home. When working at the Toowoomba office, Mr O'Neil would normally work a 7.25-hour standard day.

[43] The Respondent says that during the 10-day away periods, Mr O'Neil did not work for 10 days in the fortnight, but would work for nine days, typically having Sunday off. The Respondent says that Mr O'Neil wanted to work Sunday and told his employer this, but his line manager required him to take Sundays off as a rest day to avoid fatigue. Mr O'Neil expressed his opposition to this managerial decision.

[44] Mr Coop recalled that, within months of starting the role of Fleet Manager in 2016, he implemented a policy requiring the team to take Sundays as a rest day while travelling. Further, Mr Coop says that he spoke with Mr O'Neil very early on in Mr Coop's tenure to raise concerns about fatigue. Mr Coop said that he had become aware that the team were 'working 10 days straight, and then coming for four days at a time, and working very long hours while they were away'. Mr Coop said that he 'made a ruling at that time, based on all the information...that I didn't want him working Sundays any longer when they were away travelling'. Mr Coop said that the team were still allowed to do a reasonable amount of overtime but that he wanted them to take Sunday off as a rest day. Mr Coop said that it seemed to be accepted at the time and was communicated to

18 Exhibit 6.

19 T1-67 ll1-8.

20 T1-67 ll16-21

Mr Brown and Mr Taylor by Mr O'Neil. However, Mr Coop recalled that Mr O'Neil had raised the matter again and that Mr Coop advised him that he needed to take Sunday off as a rest day.21

[45] The Respondent further says that Mr O'Neil's position did not require him to undertake significant travel as it was a coordinator role. Mr O'Neil was able to arrange for both people employed by the Department and external to the Department to do physical inspections, servicing, site maintenance etc. rather than Mr O'Neil travelling extensively.

[46] The Respondent says that Mr O'Neil chose to undertake maintenance runs himself and this involved significant travel and spending time away at various locations throughout Queensland. Mr O'Neil accumulated significant days off and time off in lieu (TOIL) or overtime which he utilised.

[47] Mr Coop maintained that Mr O'Neil's role was not a predominantly field based role. Mr Coop said that the role required two field trips to be done by a radio technician to manage the radio network maintenance. It was put to Mr Coop that Mr O'Neil was spending more time in the field than in the office during the relevant period of time and Mr Coop answered that Mr O'Neil was in the field more but that he was not at work the rest of time.22

[48] The Respondent says that coordination of breakdown repairs and capital works was on an 'as needs' basis.

[49] In terms of capital works, the Respondent says that Mr O'Neil's workload was driven by his own desires and input. When Mr O'Neil identified ways to make improvements, there was no particular time requirements to undertake the capital improvements and that Mr Coop did not require recommended capital works to be undertaken within a defined timeframe.

[50] Mr O'Neil's role also involved responding to, and communicating with, employees of the Department and third parties in connection with the network and undertaking licensing and administrative tasks associated with the radio network.23

Management of Mr O'Neil's field work and travel

[51] The Respondent says that Mr O'Neil was responsible for the management of the state- wide radio network, and that Mr Coop, as manager, had overall responsibility and accountability for the radio network.

[52] It was put to Mr Coop that when he came to the position of Fleet Manager, he did not understand Mr O'Neil's role. Mr Coop said that he knew that Mr O'Neil looked after the radio network but that he did not know the actual specifics of what Mr O'Neil did. Mr Coop said that he understands the maintenance requirement of the radio network and but that he does not know the specifics of the work of a radio technician.24 Mr Coop said that he understood that Mr O'Neil was 'testing radio equipment and doing

21 T3-17 ll24-40; Exhibit 17.

22 T3-41 l13-45.

23 T1-12 ll9-31.

24 T3-27 ll34-46.

maintenance work on sites'. Mr Coop detailed the type of work Mr O'Neil was undertaking to include grounds maintenance, fence repairs, tower inspections, battery testing, ensuring hazard identification for radio frequencies was up to date and was looking after electricity supply to sites.25

[53] When put to Mr Coop that he had not taken steps to address Mr O'Neil's concerns about travel prior to Mr O'Neil complaining about it, Mr Coop disagreed and pointed to the implementation of a rest day on Sundays discussed at [43] above.

[54] Mr O'Neil's evidence was that he suffered stress due to excessive workload. He said that he found the volume of work overwhelming. When asked if he worked too many hours, Mr O'Neil said, 'Yes. There were a number of hours worked. Particularly in the field sense there was a large number of hours worked. The office-based tasks were predominantly kept to standard working hours of around seven and quarter, seven and a half hours a day'.26

[55] When asked if his concern was that he was working too many hours in the day, Mr O'Neil said, 'I don't think it's a concern; it's just how it was. The sites are remotely located, so the travel time to travel out to site, do the works on site and travel back - it was a long day'. When asked if the long hours in the field caused his stress condition, Mr O'Neil said that he believed the workload caused his stress condition.27

[56] Mr O'Neil spoke about having raised workload concerns in 2014 and that a process was put in place to approve some assistance for Mr O'Neil.28

[57] The Respondent says that the assistance Mr O'Neil refers to was provided by Mr Brown who retired in May 2018. Mr Brown was a mechanic by trade. Mr Brown was tasked with looking after the younger apprentices around the state and making sure that their training and competencies were on track. Mr O'Neil said that Mr Brown was able to assist with fencing and structures and that he also assisted with stakeholder liaison. Mr O'Neil said that Mr Brown was able to undertake quick trips to site which 'freed me up to complete office-related tasks'.29

[58] Mr Brown said that he assisted Mr O'Neil by travelling to sites and helping to maintain and improve sites. Mr Brown said that the work included 'more concreting. Put new huts in. Replace towers...new fences. Security type of things...'.30

[59] Mr Brown said that he would give some assistance to Mr O'Neil when they were back in the office, helping to order things that were needed and putting together and decommissioning radios. Mr Brown said that after he announced his retirement, he did not train anybody to do the same work that he was doing with Mr O'Neil.31

25 T3-28 ll4-14.

26 T1-48 ll25-35.

27 T1-48 ll37-47.

28 T1-14 ll5-24.

29 T1-14 l46 - T1-15 l22.

30 T2-29 ll39-45.

31 T2-29 l40 - T2-30 l32.

[60] Mr Brown was asked to comment on Mr O'Neil's workload at the time. Mr Brown said that Mr O'Neil had a 'huge workload'. Mr Brown said that there were days where if Mr Taylor was with them in the field, Mr O'Neil would stay back at the motel and do office work or computer work. Mr Brown said that he knew that Mr O'Neil would work late into the night back at the motel when they were in the field because he would go to Mr O'Neil's room to discuss the work for the following day or week and Mr O'Neil's 'table would be full of things - like paperwork and things like that...'32

Paperwork, work arising from field trips and work that came in while Mr O'Neil was in the field

[61] It was put to Mr Coop that Mr O'Neil would go out and do work on site and then would have to come back to complete reports. Mr Coop said that Mr O'Neil would do paperwork when he got back to his motel from time to time.33 Mr Coop said that the 'maintenance sheets' were done on site when the maintenance work was being done. Mr Coop said that these reports would be filed when Mr O'Neil returned to Toowoomba. Mr Coop also said that the report Mr Paine requested regarding each site was a one-off and not something that Mr O'Neil was regularly preparing.34

[62] With regard to Mr O'Neil's work when he was back in the office, Mr Coop said that Mr O'Neil would do 'day to day activities that come into the radio network, deal with issues about easements and co-ownership of properties, communicate with other customers. Mr Coop said that some of the work that Mr O'Neil needed to do came in when he was out in the field and some work did not.35

[63] Mr Coop said that he would do any of the work that came in while Mr O'Neil was away that 'had to be handled at the time'. When asked if he only did urgent work, Mr Coop said that he would also do the mundane day to day activity. Mr Coop said that the workload awaiting Mr O'Neil when he returned from the field would be 'very small'.36 Mr Coop said that he did not know how many emails there may be in Mr O'Neil's personal Department of Transport and Main Roads email inbox but that Mr Coop monitored the radio network inbox and said that there was 'very little left out of that' for Mr O'Neil to deal with after his leave. Mr Coop said that the only significant piece of work left outstanding for Mr O'Neil to deal with on his return was the 'wind farm at Banana Range'. Mr Coop thought that the wind farm work may have been left for Mr O'Neil in 2018 before the meeting of 9 December 2018 when Mr O'Neil raised the issue of travel.37

[64] When asked about whether there must have been a backlog of work built up while Mr O'Neil was working in the field in the first half of 2018, Mr Coop said that there was no backlog and that if he had been aware of a backlog, he would have put something in place to manage it.38

32 T2-31 l19 - T2-32 l7.

33 T3-31 ll34-42.

34 T3-32-T-33.

35 T3-33 ll9-25.

36 T3-33 ll32-47.

37 T3-34 l41 - T3-36 l28.

38 T3-36 l39 - T3-37 l7; T3-44 l43-45.

[65] Mr Coop agreed that Mr O'Neil had to deal with an easement in central Queensland. He also agreed that Mr O'Neil dealt with shared facilities and contract arrangements with contractors but said that these were not matters that required regular communication. Mr Coop said that reports on what maintenance was done in the field were completed while in the field and were filed when Mr O'Neil returned to the office.39

[66] Mr O'Neil corroborates that Mr Brown assisted him with his workload until 2018 when Mr Brown retired. Mr O'Neil says that at the time Mr Brown left, his workload was manageable as Mr Brown and he had worked together to 'get through that workload'.40 From then on, Mr O'Neil was required to complete his workload with ad hoc assistance from Kevin Taylor, a radio technician based in Brisbane. Mr O'Neil says that Mr Taylor's assistance was limited as Mr Taylor had his own work and tasks to complete in Brisbane.41 Mr O'Neil said that in order to get assistance from Mr Taylor, Mr O'Neil was required to go through Mr Coop who would liaise with Mr Taylor's manager.42

[67] It was put to Mr O'Neil that it was not true to say that he had no support after Mr Brown left because Mr Taylor was assisting him. Mr O'Neil said that 'the workload that my role undertakes was not assisted by any person'. Mr O'Neil said that Mr Taylor assisted in 'minor work' but that Mr Taylor was not responsible for communications licencing, nor did he deal with stakeholders or customers. It was put to Mr O'Neil that Mr Taylor did a lot of the technical work and Mr O'Neil said that Mr Taylor did the 'servicing and calibration of equipment'.43

[68] Mr O'Neil maintained that Mr Taylor did not undertake any of Mr O'Neil's work tasks. Mr O'Neil said that he was responsible for coordinating or managing to make sure the that the servicing of equipment occurred and that Mr Taylor undertook that work. It was put to Mr O'Neil that in fact, he did not have to physically complete any of the field jobs and that his job was to manage or coordinate getting those jobs done. Mr O'Neil disagreed. He said 'by going to site, I am looking at - doing audits on equipment and also making sure that we're compliant in areas that need to be compliant, inspection of the equipment as well...'44 It was put to Mr O'Neil that he could get the job done by having other people conduct the audit. Mr O'Neil said that other people could be trained to do the role but that the Department was not willing to release those people. Mr O'Neil said that was why he was raising succession planning as an issue.45

[69] Mr O'Neil was asked about his grievance regarding Mr Brown not being replaced when he retired. It was put to Mr O'Neil that Mr Brown was only working in a two day a week capacity in May 2018 and Mr O'Neil said that was not correct and that by May 2018, Mr Brown had been moved to work for 'fleet' permanently. Mr O'Neil was taken to a document prepared by him, RoadTek Radio Network Review,46 where he had stated that Mr Brown would not be required after 30 June 2017. Mr O'Neil agreed that he had written that.47

39 T3-37 l15-44.

40 T1-22 ll38-41.

41 T1-21 ll35-43.

42 T1-22 ll1-6.

43 T1-53 ll14-47

44 T1-54 ll4-17.

45 T1-54 ll19-21.

46 Exhibit 2.

47 T1.52 ll12-47.

Administration assistance provided to Mr O'Neil

[70] Mr O'Neil was asked about the administrative support provided to him by Ms Allen, who the Respondent says was supporting Mr O'Neil at all material times until she took leave on short notice on 17 May 2019 and at that time, there was cover for her work in place by 21 May 2019.

[71] Mr O'Neil said that Ms Allen was the administration and support officer for the entire fleet team. Mr O'Neil was asked if part of Ms Allen's role was to support him while he was away by monitoring the electronic inbox and dealing with inbox items when she could. Mr O'Neil said 'some electronic filing was carried out' and that Ms Allen 'did monitor the inbox and make phone contact with me if she needed to send an email or alert me to things that I may not have seen so that I can actually - well, at least provide preliminary response until we go back to the office.'48 He was taken to an email which provided an example of the type of work Ms Allen did in monitoring his email inbox.49

[72] Mr O'Neil agreed that Ms Allen would undertake payment of invoices and that Mr Coop would approve those while Mr O'Neil was out of the office. Mr O'Neil was asked if Ms Allen did a lot of record keeping, such as using a spreadsheet to keep track of the radio sites, electricity counts and other documents. Mr O'Neil said that he was not familiar with that and that the only spreadsheet he was familiar with was the one he had created himself.50

[73] Mr O'Neil said that Ms Allen supported him by creating purchase orders for equipment and items and that if needed, Ms Allen would follow up and ring people about getting those items. Mr O'Neil also agreed that Ms Allen undertook travel and accommodation bookings for him at times.51

[74] Mr O'Neil disagreed that Ms Allen would undertake tests of equipment for him from the radio in the office. He said that he would be very surprised if Ms Allen knew how to use the radio.52

[75] Mr O'Neil said that Ms Allen's tasks were administrative tasks not ordinarily performed by him. Mr O'Neil said that if Ms Allen was not performing those tasks, another administration officer would have.53

[76] Ms Allen gave evidence about her time working as Administration Coordinator with Mr O'Neil. Ms Allen said that she undertook tax invoicing, a financial system called SAC and learning about equipment for radios.54 Further, Ms Allen said that she looked after the travel bookings and expense claims for the radio network team. Ms Allen said that she would also look after the radio network inbox and look after some of the simpler emails. Additionally, Ms Allen said that she paid accounts for general expenses and made

48 T1-54 l40-T1-55 l4.

49 Exhibit 13.

50 T1-5516-23.

51 T1-55 l28-37.

52 T1-55 l42-46.

53 T1.56 l18-23.

54 T3-6 ll19-27.

payments after Mr O'Neil had approved them. Ms Allen also managed radio stock in the project database and would update the database to indicate what supply was on site.55

[77] Ms Allen said that if an email came in that looked as though it required urgent attention, she would try and communicate with Mr O'Neil by phone. She said if the matter was not urgent, she would 'let it sit there' and that Mr O'Neil would keep in contact.56 Ms Allen was shown Exhibit 13. She said that this was an example of where an email had come in that she thought might be urgent and that she would have discussed it with Mr Brown as the support person in the radio team and with Mr Coop because it was something she could not action herself. Ms Allen said that her important role in that regard would be to draw to Mr O'Neil's attention that there was something requiring action.57 Ms Allen said that there were emails she could action while Mr O'Neil was away but she could not action technical matters.58

[78] In terms of procurement, Ms Allen said that quotes would come in and that she would get documents together for purchase order creation.59

[79] Ms Allen was taken to Exhibit 15 which was a document she had created prior to taking some leave. Ms Allen said that she would like to make sure that everyone was 'clear where I am with my workload'. Ms Allen went through the document and indicated the tasks she undertook that were related to the radio network. Those tasks included the ProMaster system for paying bills with the government credit card; travel for the radio network team; monthly revenue and expense reports for the radio network; 'disposal Mount Hopeful gear'; 'logic wireless purchase order'; weekly internet check; and contacting Mr O'Neil or a manager to rectify any issues with the line not being active.60

[80] Ms Allen said that about fifty percent of her work time was associated with Mr O'Neil and that she 'was basically told to support...the radio network as a priority'. Further, Ms Allen said that she 'did a lot of tidy-up work' with the physical records.61 Ms Allen confirmed that her role did not involve undertaking technical aspects of the radio network work.62

[81] Ms Allen said that Mr O'Neil undertook performance review or feedback conversations with her. She said that she would meet with Mr O'Neil first and then meet with her manager. Ms Allen said that the meetings were held at six months and twelve months but 'you don't just wait for the six-month. You have checks in place to make sure that we're on target with what we need to do. Well, what I need to do.'63

[82] Mr O'Neil said that after being away for a long period of time, there was a lot of inspection and audit reports that had to be collated and filed. Mr O'Neil said that when there was damage to an easement or a track, he would have to follow the government procurement policy and get a number of quotes. Mr O'Neil said that this could be quite

55 T3-6 l40 - T3-7 ll21.

56 T3-7 l23-28.

57 T3-7 l36 - T3-8 l7.

58 T3-11 l35-46.

59 T3-7 ll30-34.

60 T3-8 l16 - T3-9 l9.

61 T3-9 ll25-36.

62 T3-10 l46.

63 T3-9 l38 - T3-10 l24.

time consuming.64

Work done by Mr O'Neil when in the field

[83] Mr O'Neil said that when he was away in the field, he would 'always have a look at my emails or my smartphone before I depart to go and do site visits on the morning'. Mr O'Neil said that this could take between 10 minutes and an hour. Mr O'Neil said that he would depart for site visits at about 7.30am.65 Mr O'Neil said that in the afternoon after travelling back to his base after a field visit, he would 'have all the things I haven't done through the day, for example, emails and telephone calls and missed calls or voicemail'.66 Mr O'Neil says that this generally takes around an hour but 'could be as many as three hours'.67

[84] Mr O'Neil was asked whether the work he was doing was captured in his timesheets and he said that it was not. Later, under cross-examination, Mr O'Neil conceded that time spent attending to emails out-of-hours was sometimes included in the hours of work entered into his timesheet. Mr O'Neil was asked about an inconsistency in his evidence where he said that he was attending to emails before and after field visits but then also said that he would return from field work to the office to find many emails to action. Mr O'Neil said that he would deal with quick and easy things or send preliminary responses from the field but that anything in detail was left until he got back to the office.68

[85] Mr O'Neil said that he would peruse emails but that did not mean that they were actioned to completion. Mr O'Neil also said that he would listen to voice messages that had been received throughout the day. When asked why he did not capture the work he was doing after hours on his timesheet Mr O'Neil said that he would capture some of it on timesheets.69

[86] It was put to Mr O'Neil that he had every reason to capture the time he was working out- of-hours on his timesheets and that the field work period is about accumulating time and TOIL so he could have time off. Mr O'Neil disagreed and said that he did not believe most public servants capture every minute on a time sheet and that that had not been his practice throughout his career.70 Mr O'Neil said that if the field work was just about accumulating time off, he would be adding in time spent doing emails and phone calls because this would be to his benefit.71

[87] Mr O'Brien gave evidence of a period of eight to ten weeks in 2013 when he worked with Mr O'Neil. Mr O'Brien said that during that time, Mr O'Neil's workload was 'pretty excessive' and that Mr O'Brien was engaged to help repair radio communication sites. Mr O'Brien said that at that time Mr O'Neil's workload 'seemed to be pretty extensive and was - he was always on the phone, work working extremely long hours at that particular time. Like we were doing between 10- and 12-hour days and sometimes he

64 T1.11 ll41-47.

65 T1-12 l39- T1-13 l3.

66 T1-13 ll10-12.

67 T1-13 ll15-16.

68 T1-49 ll7-18

69 T1-50 ll1-2.

70 T1-51 ll16-23.

71 T1-51 ll25-28.

would still be working, you know, two or three hours after that, answering phone calls, returning emails...but his workload seemed to be very, very, excessive.'72

[88] Mr O'Neil was asked about his evidence-in-chief where he had said that out-of-hours work was captured 'so we don't lose it. So we're not working for free'. It was put to Mr O'Neil that it was unbelievable for him to say that he was not capturing every minute worked in his timesheets. Mr O'Neil reiterated that his timesheet did not capture emails and messages responded to in the mornings or after dinner.

[89] Mr O'Neil was taken to an email he had sent to Ms Allen on 28 February 2019 at

8.39pm.73 With regard to his evidence that he would not normally have captured checking or replying to emails at this time of night in his timesheet, Mr O'Neil was taken to the timesheet spreadsheet document. On 28 February 2019, Mr O'Neil had banked TOIL time from 6pm to 9.15pm. Mr O'Neil was also taken to an email sent at 6.10pm, and another sent at 6.50am and further emails sent before 7:00am where his timesheet did not have hours logged for the times these emails were sent.74

[90] Mr O'Neil says that sometimes the matters that came to his attention while on field trips could not be dealt with immediately. In these cases, Mr O'Neil would send an email to say that the information had been received and then he would deal with it when he was back in the office.75

[91] The Respondent says that Mr O'Neil's workload was not unmanageable at the material time.

[92] The Respondent points to the 'RoadTek radio network five-year review 2011-2016' report prepared by Mr O'Neil stated that the temporary assistance being provided by Mr Brown was not required after 30 June 2017. The Respondent says that Mr O'Neil also verbally told this to Mr Coop.

[93] Further, the Respondent reiterates that Mr O'Neil could be assisted by both internal staff members and external contractors at all material times.

Backfilling arrangements when Mr O'Neil was on leave

[94] Mr O'Neil claims that since commencing the role, his employer has not backfilled his position while he has been on leave.

[95] Mr Coop said that the first time he recalled Mr O'Neil raising the issue of backfill with him was in 2017. Mr Coop said that when Mr Brown retired, he and Mr O'Neil, 'were starting to have a very, very different opinion about whether the position needed to be backfilled or not while he was on leave.'76 Mr Coop recalled that Mr O'Neil was adamant that he wanted someone to backfill his role while he was away but that when Mr Coop would ask what work needed to be done and what the person backfilling would do, Mr O'Neil was unable to give him enough information to substantiate why the position

72 T2-24 ll26-40.

73 Exhibit 14.

74 Exhibit 26; Exhibit 27; Exhibit 28.

75 T1-13 ll21-33.

76 T3-23 ll41-47.

needed backfilling.

[96] With regard to the need for backfilling, Mr Coop said that Mr O'Neil always took his leave in between the major servicing runs each year. Mr Coop said that it was a 'generally quiet time of the year' and that it was 'only the day to day running and if there was a breakdown'. Mr Coop said that 'there was not enough work and there was not enough justification to backfill it, and we didn't have any other experience in that area to take on a major project'. Mr Coop said that major projects could easily be put off.77

[97] Mr Coop was asked if there was any negative consequence of not backfilling Mr O'Neil's position. Mr Coop said that 'after the event, after we called out and the holidays would - would morph into a long period of time...sometimes it would become challenging for me, because we would be running into the next maintenance run'.78 Mr Coop was asked how he dealt with this and he said 'I actually managed to find a project manager. I found two project managers in Toowoomba that had some experience that was able to help me out, and had a project manager do a maintenance run with Kevin Taylor, we got the maintenance run done'.79

[98] The Respondent admits that no one staff member has been assigned solely to backfill Mr O'Neil. However, the Respondent denies that there was a significant backup of work and that Mr O'Neil's workload significantly increased when he returned from leave in September 2018. The Respondent says that Mr O'Neil's workload at the time of his leave was light and that Mr Coop and others covered Mr O'Neil's role leaving only non-urgent matters for his return. The Respondent also says that it had no reasonable notice that Mr O'Neil would be taking a total of 35 days of leave.

[99] Mr O'Neil was taken to a document listing sick days taken in 2018 and 2019,80 text messages regarding sick days that he took and associated medical certificates. The messages indicated that when Mr O'Neil initially took leave on 30 July 2018, he said 'will be back in the office next week'. Mr O'Neil agreed that on 9 September 2018 he sent another text message saying 'I feel fine. So that could be as early as Tuesday this week' and 'I'll see what happens tomorrow and advise further'. On 10 September 2018, Mr O'Neil sent another text message saying that he would be having the remainder of the week off and that his definite return to work would be 17 September 2018.81 Mr O'Neil agreed that the text messages show a pattern of communication which indicates that he did not know when he would be coming back to work but that he was hopeful of returning at various points.82

[100] Mr O'Neil agreed that Mr Coop had not been advised at the start of the leave how long that leave would be for and said that Mr Coop knew that Mr O'Neil was having a number of tests done and that as soon as Mr O'Neil's medical certificate was renewed, he would let Mr Coop know that the leave would need to continue.83

77 T3-24 ll7-14.

78 T3-24 l16-19.

79 T3-24 ll21-24.

80 T1-61 ll29-36.

81 Exhibit 16.

82 T1-63 ll12-15.

83 T1-631l 6-25.

[101] It was put to Mr O'Neil that on the list he put together regarding his absences, the reasons provided were insomnia, high blood pressure and insomnia rather than psychological distress from workload. It was also put to Mr O'Neil that he had not complained to his doctor about workload stress until 24 June 2019. Mr O'Neil said that this was not correct and that he had discussed with his doctor that the insomnia was most likely caused by stress. Mr O'Neil said that his specialist noted that Mr O'Neil needed to be taking things easier because insomnia is generally caused by mental health.84 Mr O'Neil said that he had been discharged from that specialist for a 'fairly long time now' and he would not be calling that doctor as a witness.

[102] The Respondent says that on other occasions when Mr O'Neil took leave, the position was always backfilled by way of cover from his line manager (Mr Coop) and others. During the times relevant to this appeal that Mr O'Neil took leave, it was in between 'inspection/service/maintenance' runs and that Mr O'Neil's workload in between such planned maintenance runs was light and it was determined that no full-time backfill of the role was necessary. Further, the Respondent says that any capital works could have been put off until the following year and Mr O'Neil was aware of that.

[103] The Respondent says that to the extent that the role was not backfilled on a full-time basis, it was reasonable management action taken in a reasonable way when taking into account the extent of the preapproved leave and when taking into account the work undertaken while Mr O'Neil was on leave as against that which could be reasonably deferred until his return.

Mr O'Neil's office days following periods of leave or field work were limited

[104] The Respondent says that following his return to work after 35 days of time in lieu and recreation leave and one day of sick leave on 24 July 2018, Mr O'Neil also worked a standard 7.25-hour day each day for the first four days until going on sick leave on Monday 30 July 2018. During this time, Mr O'Neil did not request overtime and left his work computer and work phone on his desk when he left each night, indicating that his workload was reasonable and manageable.

[105] Mr O'Neil was taken to an entry for 12 February 2018 which showed that he was back in the office for a day. Mr O'Neil did not recall specifically what that office day was for but said 'it would be catching up on the paperwork from - in the field work.' Mr O'Neil said that he would have been updating the SAP system to show which radios were fitted into which vehicles so there would be an electronic record of them. He said that he also would have been 'going through emails and other action items'.85 Mr O'Neil said that he would not have been able to complete all of the work in that day.86

[106] Mr O'Neil said that when he returned from a fieldtrip it could by up to a fortnight by the time the paperwork was completed.

[107] Mr O'Neil said that the reason Exhibit 6 only listed four days in the office where Mr O'Neil worked 10 hours or more was that 'it's not the done thing to be working overtime when you are rostered in the office.'

84 T1-63 l45 - T1-64 l3.

85 T1-24 ll21-27.

86 T1-24 ll29-30.

[108] Mr O'Neil was also taken to a period of time from 12 March 2018 to 6 April 2018 where the spreadsheet indicated that he had taken accrued time off. Mr O'Neil explained that accrued time taken is 'time that's banked where you've accrued it when you've got over

7.25 hours in a day, up to and including 9.5 hours in a day'.87 Mr O'Neil said that he had to seek permission from Mr Coop to take accrued leave and that 'it's basically stated that they would like you to take that time off than lose it, to have a break from work'.88

[109] Mr O'Neil was taken to the time after that accrued time where he worked in the office on 11 April, 15 - 17 April, and 19 April 2018. Mr O'Neil said that he was unable to complete the work arising from the field work and other work that had come in during his accrued leave during this time that he was back in the office.

[110] Mr O'Neil was taken to the period commencing after the office-based work from 17 April 2018. Mr O'Neil confirmed that he was working in the field through until 25 May 2018. From 28 May 2018 until 29 June 2018, Mr O'Neil was on another period of accrued leave. Mr O'Neil said that he took that leave to 'basically wipe out the accrued leave balance, to get it back to a more manageable level'. Mr O'Neil said that he would not have done any work-related activities during that period of accrued time off.89

[111] From 2 July 2018 through until 13 July 2018, Mr O'Neil was on recreation leave.90 Mr O'Neil said that over this period of time he had the support of an administration officer.91 Mr O'Neil said that during those weeks that he was taking accrued leave and recreation leave, the administration assistant completed paying invoices, undertook some minor checks of email accounts and forwarded a handful of things to Mr Coop for consideration or action.92

[112] Mr O'Neil was taken to the time period following his recreation leave. Mr O'Neil worked in the office on 17 July 2018 for one day. The next office-based days after that were 24 and 25 July 2018. On each of 26 and 27 July 2018, Mr O'Neil worked for three hours.93

[113] From 30 July 2018 until 17 September 2018, Mr O'Neil was on sick leave. Mr O'Neil said that during that period of time his role was not backfilled and that nobody helped with the work.94 Mr O'Neil confirmed that Ms Allen undertook payment of invoices.

[114] In further support of its submission that Mr O'Neil's workload was reasonable and manageable following his return to work from sick leave, the Respondent says that when Mr O'Neil returned to work, he worked a standard 7.25-hour day for four days straight and again left his work computer and work phone on his desk each afternoon when he left work and did not seek to work overtime. Mr O'Neil took a single sick leave day on 21 September 2018 and did not take sick leave again until he took one day of sick leave

87 T1-24 ll39-44.

88 T1-24 l45-T1-25 l3.

89 T1-25 ll33-47.

90 T1-26 ll1-2.

91 T1-25 ll16-20.

92 T1-26 ll4-8.

93 T1-26 ll10-33.

94 T1-26 ll35-41.

on 19 March 2019.

[115] Mr O'Neil said that when he returned from his sick leave, he found that invoices had been paid, Mr Coop had sent 'a handful of emails to customers' giving them a preliminary response telling them that they would have to wait until Mr O'Neil returned and that the workload had continued to increase while he was on leave.95 Mr O'Neil said that the work from the previous site inspections and audits was outstanding. When asked whether he was able to complete the work from the site inspection and audits during the office- based days, Mr O'Neil said that the workload was too great for him to complete during those office-based days.96

[116] When asked specifically what work had built up and been left for him to do, Mr O'Neil said that the 'fall arrest inspection device' work was left outstanding. He said that there had been changes to the Communications and Media Authority licensing that had not been completed. Mr O'Neil said that there were also some stakeholder emails left for him to action. Mr O'Neil says that in an email dated 20 September 2018, he mentioned in an email to Mr Stubbs (acting in Mr Coop's role), that he was a long way behind with his workload because there was no backfill for his role.97

[117] Mr O'Neil referred to an email of 25 October 2018 which he says is an example of work that had been left for him to complete upon his return. Mr O'Neil said that Ms Allen had access to his own work email account and that Ms Allen, Mr Coop and Mr Taylor (among others) had access to the radio network generic email account.98

[118] Mr O'Neil said that when he returned to work and saw the emails, he felt overwhelmed. Mr O'Neil said that he 'started going through emails to try and determine where I was up to, or what had or hadn't been done'.99 Mr O'Neil said that his recollection was, that returning from leave, 'I didn't get too many full days done before I just got overwhelmed and fatigued and had time off in lieu'.100 Mr O'Neil recalled that on his first day back from leave, he did not work the full day.101Mr O'Neil said that he had the time owing to him and so he used the time off in lieu to 'go home and just have a break from the work'.102

[119] Mr O'Neil was taken through his workdays for the week following his return from leave. Mr O'Neil said that on his second day back, he left early and had 0.75 hours off. On the third day back (19 September 2018), Mr O'Neil said that he got to work late because he was 'still fatigued and hadn't slept well that night' so he started at 11.45am or thereabouts and finished at 3.45pm. Mr O'Neil said that on 20 September 2018 he worked longer than a standard 7.25-hour day. And on Friday 21 September 2018, Mr O'Neil said that he had sick leave for the entire day. He said that the sick leave was taken because he was 'just overwhelmed with the workload and just felt really tired'.103

[120] Mr O'Neil was asked about his remark that he had not slept well. Mr O'Neil said that he

95 T1-27 ll1-7.

96 T1-27 ll9-16.

97 T1-27 ll20-35.

98 T1-29 ll22-26.

99 T1-29 ll28-30.

100 T1-29 ll31-34.

101 T1-30 ll45-46.

102 T1-29 ll33-34.

103 T1.30 ll4-17.

was sleeping enough hours. He said that he sleeps with a Continuous Positive Airway Pressure ('CPAP') mask that gives him a report regarding how well he slept. He said that his 'compliance was good' but that he 'just felt lethargic and tired all the time'.104

[121] It was put to Mr O'Neil that his work pattern upon return to work on 17 September 2018 was suggestive of somebody with not a lot of work to do. Mr O'Neil disagreed and said that it demonstrated that he was overwhelmed and fatigued. Mr O'Neil said that he did not think he would have taken his work mobile phone or computer home with him when he left work on 17 September 2018.105

[122] It was put to Mr O'Neil that the reality was that any work that came in while he was away, including on sick leave, could be done when he returned without any significant increase in workload. Mr O'Neil disagreed.106 Mr O'Neil also disagreed that capital works could be put off without any 'major dramas' and said that there were some things that would need to be taken care of and not all things could be put off.107

[123] With regard to field trips, it was put to Mr O'Neil that he has never been pressured to do field work site visits. Mr O'Neil disagreed and said that he has been required to do site visits since 2010 and that it was a requirement of his role. Mr O'Neil was asked if he had ever been disciplined for 'lags in time periods or delays' and he said that he had never been disciplined in his entire career. When asked if it was not the case that he was going to be held responsible for a leak in a hut or anything like that, Mr O'Neil said, 'No, but it comes under the umbrella of - of tasks that I have to look at.'108

[124] It was put to Mr O'Neil that Mr Coop and Mr Paine had being trying to tell him to stay back and just manage it with contractors and to stop going out on site. Mr O'Neil said that this occurred 'later in the piece' in around March 2019. Mr O'Neil said that there had been discussions about the risks and the issues around use of contractors.109

[125] It was put to Mr O'Neil that there was no requirement on him to have matters identified and tasks done in a particular timeframe. Mr O'Neil disagreed and said that it was necessary to avoid the wet season in North Queensland and that the second visit each year was done prior to the storm season. It was put to Mr O'Neil that the timing of the visits were conditions that he was putting on himself. Mr O'Neil disagreed and said that it had been required since 2013.110

[126] The following week, Mr O'Neil said that he took Monday 24 September 2018 as accrued time in lieu. He said that the accrued time was probably sick leave and that he 'just didn't feel well enough to attend work'. Mr O'Neil said that he 'always had a policy that if he doesn't feel 100 per cent, I didn't attend work because it is sometimes counter-productive to be at work'.111 Mr O'Neil said that he was feeling as though he needed afternoon naps and was still needing to sleep for 12 hours or longer.112

104 T1-30 ll19-24.

105 T1-64 l 20 - T1-65 l18.

106 T1-65 ll15-18.

107 T1-65 ll20-26.

108 T1-65 ll 28-39.

109 T1-66 ll 6-12.

110 T1-66 ll 23-28.

111 T1-30 ll31-37.

112 T1-30 ll34-43.

[127] Mr O'Neil said that from 25 September 2018 to 27 September 2018, he worked longer hours to catch up for being away for so long. On 28 September 2018, Mr O'Neil worked and took some accrued time off. From 1 October 2018, Mr O'Neil said that he was in the field again. Mr O'Neil said that at the time he started in the field again, the office-based work was overwhelming because it hadn't been done for 'quite a period of time'.113

[128] With regard to the field work that commenced on 1 October 2018 and concluded on 9 November 2018,114 Mr O'Neil said that the 'field based stuff just could not wait any longer' and the previous maintenance run had not been completed so there was a need to undertake inspections, audits, calibration or servicing of transmitters, faults that needed to be looked at, compliance related tasks.115

[129] Mr O'Neil said that on 9 November 2018 he had some accrued leave. On 12 November 2018 he was doing office-based work. With regard to the workload at that time, Mr O'Neil said that he was working on 'emails that hadn't been actioned' and 'basically making headway through the emails and trying to get as much of that that I could completed'.116

[130] Mr O'Neil said that he went back in the field from 13 November 2018 until 23 November 2018. Mr O'Neil said that he did not recall having any assistance during that field work. On 24 November 2018 there was another day of office work and then he returned to the field until 5 December 2018.117

Mr O'Neil says he raised the issue of his workload

[131] Mr O'Neil says that he raised the issue of his workload and the effect it was having on his health and sought assistance to better manage his workload and effectively carry out his duties. Mr O'Neil says that his requests for assistance were not actioned. Mr O'Neil says that these matters were raised with Mr Coop and Mr Paine in the following ways:

(a) at the annual fleet training meeting;

(b) in December 2018 at this six month personal development achievement plan;

(c) 24 January 2019 in a meeting with Paine and Coop;

(d) on 28 February 2019 in an email sent to Coop;

(e) on 4 March 2019 in an email sent to Coop;

(f) on 5 March 2019 in an email sent to Paine;

(g) on 18 March 2019 when the Appellant met with Coop;

(h) on 1 May 2019 in a meeting with Coop.

[132] It was put to Mr O'Neil that he did not complain to Mr Coop about workload stress or psychological injury during this period of time. Mr O'Neil said that he would have verbal conversations with Mr Coop to the effect of having a lot of work to do or saying 'I'm over it. So I'm heading home for the day.'118

[133] The Respondent says that during the period around July to September 2018, Mr O'Neil

113 T1-31 ll1-19.

114 T1-32 ll12-14.

115 T1-32 ll1-10.

116 T1-32 ll25-28.

117 T1-32 ll30-46.

118 T1-63 ll 27-32.

indicated to Mr Coop that he had difficulties with sleep, was having tests done and was seeing his cardiologist. Mr O'Neil did not suggest that work was causative of his need for leave.

The fleet team meeting on 6 December 2018

[134] Mr O'Neil recalled that he returned from North Queensland to be back in the Toowoomba office on 6 December 2018 to attend the annual fleet team meeting. Mr O'Neil recalled that a topic of discussion at the meeting was the annual employee survey. He said that he provided an extensive response, of about 15 minutes,119 to the meeting about his response to the survey question about work-life balance.120 Mr O'Neil said that he was 'very direct with his words' but that he did not become agitated.121

[135] The Respondent says that Mr O'Neil did not notify management of any psychological injury or psychological symptoms or that his workload was causing any health concerns at any material time. The Respondent submits that the employer only became aware of the allegation that his workload was allegedly causing health concerns, in the nature of a psychological injury when Mr O'Neil lodged his Application for Compensation with WorkCover in July 2019.

[136] The Respondent says that at the annual fleet team meeting on 6 December 2018, Mr O'Neil raised a number of matters in the context of a talking point around work-life balance. Mr O'Neil raised matters including that he was spending increasing time away from home and that he was not being allowed to work on Sundays while away. Mr O'Neil did not raise any effect that his employment was having on his health.

[137] Mr Coop also recalled the meeting on 6 December 2018. Mr Coop said that during the part of the meeting where there was a review of the employee opinion survey results, Mr O'Neil became 'very agitated and gave his opinion in a very forthright manner'.122 Mr Coop said that Mr O'Neil said that he was spending far too much time away from home, that he was doing a role he had never applied for, that he was doing work he had never been trained to do and that he was not allowed to work on Sundays while he was away.123

[138] Mr Coop said that during that meeting he 'got a little bit concerned about Nathan'. Mr Coop said that Mr O'Neil 'had become very, very agitated, and he was very vocal, swearing in front of the girls, which his not like him at all'.124 Mr Coop said that when the meeting ended, he asked Mr O'Neil if they could catch up before Mr O'Neil went home and that they spent close to an hour talking.125 Mr Coop said that following that meeting he 'did a handwritten report' which he typed up at a later date.126

[139] The Respondent says that at that meeting on 6 December 2018, Mr O'Neil did not seek assistance to better manage his workload and be able to carry out his duties. The

119 T1-71 ll4-8.

120 T1-33 ll1-41; ll20-46.

121 T1-71 ll10-11.

122 T3-18 ll15-18.

123 T3-18 ll20-26.

124 T3-18 ll28-30.

125 T3-18 ll31-35.

126 T3-18 ll40-43; Exhibit 35.

Respondent further notes that Mr Paine was not present at that meeting.

[140] Mr O'Neil recalled this meeting in his evidence and described Mr Coop suggesting that they 'have a chat, just to have a debrief about the things that I had discussed at the team meeting'.127 The Respondent says that in this meeting, Mr O'Neil spoke of a range of issues that concerned him including management decisions that had occurred over a very long period, in excess of nine years, that Mr O'Neil said he did not agree with. Mr O'Neil recalled that a range of matters were discussed in that meeting including succession planning, training, not being able to work on Sundays and spending decreased time away from home.128

[141] Mr Coop said that he reported the matter to his immediate supervisor Mr Chris Pearson and that Mr Coop spoke to Mr Paine. Mr Coop said that he ran through the incident report with Mr Paine. Mr Coop recalled that Mr Paine 'found out more about the radio network and how we managed it and Nathan's role with the radio network. And Nathan's qualifications as well. He took a keen interest in the network from that point on'.129

Work undertaken by Mr O'Neil after he raised his concerns on 6 December 2018

[142] Mr O'Neil recalled that he was office-based until 12 December 2018 and then had accrued time off for various rest days until 6 January 2019. From 7 January 2019, Mr O'Neil was back in the office for five days and then there were some more rest days before he returned to the field on 14 January 2019.130 Mr O'Neil said that during the five office days, he was unable to catch up on work. He said that he was feeling overwhelmed at that time. Mr O'Neil said that he would go to work, do the work, and become fatigued by the work.131 Mr O'Neil said that he would go to work with good intentions to complete the work and if he felt he could not continue, he would go home.132

[143] Mr O'Neil said that at this time, the work he needed to finish included the completion and amendment of site radiation folders, Communications and Media Authority licensing, the decommissioning of certain sites, ordering parts for upcoming service runs, and the completion of a number of radio installations in January. Further, Mr O'Neil said that there were radios that had be decommissioned and installed and that this involved engraving, programming and testing them and then arranging for them to be fitted into vehicles.133

Meeting on 24 January 2019 and Mr O'Neil's work during first half of 2019

[144] Mr O'Neil said that he was back in the office on 24 January 2019 and that on that day, there was a meeting where Mr Paine discussed completing a review of the radio network.134 Mr O'Neil recalled that at that meeting, Mr Paine said that there would be benefit in completing a review of the RoadTek structures.135 Mr O'Neil said that

127 T1-34 ll1-2.

128 T1-72 ll9-27.

129 T3-20 ll1-6.

130 T1-37 ll25-34.

131 T1-37 ll36-46.

132 T1-38 ll1-3.

133 T1-38 ll1-20.

134 Exhibit 9.

135 T2-4 ll24-45.

Mr Paine had suggested at that time that Mr O'Neil would need to provide some input and that he later provided an email regarding what he would require in a site summary for the sites that RoadTek owned.136 Mr O'Neil agreed that when asked to do the task, he did not say that he could not do that work due to his workload or not having enough time to do the work. However, he said that Mr Paine had said that other work should be suspended in order to complete the review and that Mr O'Neil could see the benefit in doing so.137

[145] Mr Coop recalled the meeting on 24 January 2019 between himself, Mr O'Neil and Mr Paine. Mr Coop said that Mr Paine had some concerns about the radio network and the maintenance of the radio network. Mr Coop said that Mr Paine 'was concerned that Nathan was actually inspecting structures - the towers - and possibly doing some electrical work'.138 Mr Coop recalled that as a result of that meeting, Mr O'Neil was asked to put together a report for each site with radio equipment on it that was owned by the Department. Mr Coop said that Mr O'Neil was asked to 'provide information about what was on site, and to give a general condition report on the site'.139 Mr Coop recalled that Mr O'Neil had said that it would be a very easy task and that he would be able to get it done before he headed back up north again. Mr Coop did not recall Mr O'Neil raising any issue about workload at that meeting.140

[146] Mr O'Neil was taken to the email he sent immediately after that meeting at 2.47pm. In this email, Mr O'Neil said that he believed that he could provide the bulk of the information Mr Paine was seeking by close of business the following day and that, if possible, he would like to continue with the field work to be undertaken in Cluden.141 It was put to Mr O'Neil that this email did not reflect that he was overworked and did not want to attend on-site visits. Mr O'Neil said that he did not think the job would take more than four or five days to complete.142

[147] Mr O'Neil returned to the field from 29 January 2019 to 8 February 2019 after some rest days over the Australia Day weekend. Mr O'Neil recalled returning to the office for four days from 11 February 2019 to 15 February 2019. He said that he had not caught up and that the work had continued to build up. Mr O'Neil then returned to the field until 8 March 2019.

At a glance

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Decision date

Before

Catchwords

Source

Catchwords

Judgment (399 paragraphs)

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Legislation Cited (1)