Rukavina v Bridgestone Australia Ltd [2005] SAWCT 79

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A decision by the respondent, based on reasonable grounds, not to award or provide a benefit in connection with the worker's employment.

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Reasonable action undertaken in a reasonable manner by the respondent to counsel the worker in connection with unsatisfactory work practices or other unsatisfactory aspects concerning the performance of his duties of employment.

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Reasonable administrative action undertaken in a reasonable manner by the respondent in connection with the worker's employment.

6 The determination of the respondent was disputed by the worker. The disputed decision was confirmed, and the matter now falls for judicial determination in accordance with two of the issues raised in the respondent's rejection of the claim.

7 The worker's notice of injury and claim was accompanied by a rather disjointed and rambling five page statement[4] which he said he prepared on about 10 June 2003 at the request of his general practitioner. This made general reference to a number of matters alleged to be causative of his disability. I have attempted to draw from it the main themes as to alleged causes of his condition which include:-

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Pressures arising from simultaneous resignations of the laboratory supervisor and quality assurance manager in 2002 and the introduction of replacements without experience, with consequent loss of direction in the laboratory and a deterioration in safety, quality, workload and many other factors.

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Continual problems arising from the breakdown of equipment resulting in increased workload and an inability to keep up with testing of production samples.

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Long absences of three out of six technicians leaving remaining technicians to run the laboratory on 12 hour shifts.

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Unnecessary and unreasonable duress over the past six months whilst performing work.

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"Near miss" incidents involving malfunctioning machinery when the worker asserted his life was at risk and a subsequent attack by his supervisor on him and for blaming the supervisor for the malfunction with a consequent lack of trust and confidence developing between one another and advice from his manager that he had not followed procedures.

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Abuse directed to the worker as a result of conflicts over a contractor technician introduced to assist with workload.

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Allegedly inappropriate criticism from his supervisor of actions taken by the worker in relation to what he perceived to be faulty equipment with subsequent disciplinary process for alleged failure to follow instructions not to use the equipment.

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Conflict over interpretation of agreed procedures to be followed to address technician's workloads and disputes arising as to laboratory testing work being left by the worker to be done by the next shift.

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Extreme and insulting abuse towards the worker from a fellow employee on the morning of 6 June 2003 which caused the worker to become frightened and to leave the workplace.

8 The medical evidence is not in dispute. Dr WB Blakemore saw the worker on four occasions from 24 June 2003, shortly after the date of the alleged injury and obtained a history of the worker's problems which in general terms was consistent with the statement of the worker referred to above. In his first report dated 25 June 2003,[5] Dr Blakemore, after summarising in detail the causative events of the disability as related to him by the worker, said the following:-

"There had been pressures of work, Mr Rukavina describing his work as being busier, with fewer people on the ground, but this was not something that had been particularly troubling. The difficult relationship which had developed between him and his supervisor had been very stressful, Mr Rukavina said, with the attempted disciplining after he had repaired a broken down machine leading him to be very careful of what work he did and didn't do, and, essentially, he described himself becoming stressed from that incident, from abuse then he received (sic) from workers on the floor who disliked his summation of another worker. The final straw had been Mr Rukavina's being abused by one of his peers when he had had to leave some work for the day shift at the end of one night shift when he was short staffed.

Aetiologically there do then appear to be multiple causative events, each adding together. It is not possible to attribute a percentage of causation to each, although the likelihood is that the tension Mr Rukavina experienced with his supervisor has probably been the major problem, but at the same time, it was something he was coping with and may well have continued to cope with had it not been for the traumas abovementioned.

I understand that these are industrial matters, and there may well be some disputation about what actually has happened, and I am not in a position to say what actually happened there, but I can say that Mr Rukavina presented very genuinely."

9 There are many employment related events which occurred between about mid 2002 and 6 June 2003 which Mr Rukavina alleged in his evidence to the Tribunal to have been contributory causes of his disability, a number of which are additional to those summarised from his initial statement referred to above. It is necessary to approach the matter initially by giving a general overview of the case as presented, and the scope of the issues which arise, before focusing on those events of significance in relation to the worker's condition.

10 Counsel for the worker, Mr Telfer, and counsel for the respondent, Mr Cole, agreed as to the legal principles to be applied with respect to the application of potentially disqualifying events under s 30A(b) of the Act. They also agreed that any stress to the worker arising from the various events occurring during his employment in 2002 should be regarded as having largely dissipated before the last few months of his employment, such that the main focus should be on the events which occurred over the last days of the worker's employment in June 2003 (as counsel for the respondent contended) or an altercation which arose in the last few minutes before the worker left his employment never to return on 6 June 2003 (as counsel for the worker contended). It was suggested that the events of 2002 were mainly relevant as matters of history or background, and additionally from the respondent's perspective, as productive of many examples of events in relation to which the worker gave evidence unreliable at best or alternatively simply untruthful.

11 As noted above, the determination of the respondent rejecting the claim dated 4 July 2003 relied only on the assertion that the worker's disability wholly or predominantly was caused by one or the other of three disqualifying factors, which in turn related to paragraphs (i), (ii) and (iii) of s 30A(b) of the Act.

12 The rejection of the claim on the basis of s 30A(b)(ii) of the Act, which refers to a decision based on reasonable grounds not to award or provide a benefit in connection with employment, arose from an assertion that the worker's disability was caused (in part at least) by his reaction to his unsuccessful application for the position of Laboratory Supervisor, which was won by an outside appointee who commenced employment on 7 July 2002, and with whom the worker had significant conflict over the next year. In his closing address, counsel for the respondent conceded quite properly in my view, that there was insufficient evidence upon which the respondent could maintain that assertion as one of the grounds for the rejection of the claim.[6]

13 Accordingly, the issue is whether the worker has established that his disability was not wholly or predominantly caused by the factors referred to in s 30A(b)(i) or (iii), namely:-

"(i) Reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss a worker;

(iii) Reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment"

14 The issue is further refined in that the only actions relied on by the respondent as disqualifying causes of the worker's claimed disability in relation to s 30A(b)(i) were those taken to either discipline or counsel the worker. With respect to s 30A(b)(iii), the respondent contended that administrative actions which were relevant included those which might fall short of what could be described as "counselling", but if so could be described as administrative actions with respect to issues connected with the worker's employment. Such actions were said to include the giving of directions to the worker as to how and what duties were to be carried out, "informal" counselling, and action taken in response to other alleged stressors and pressures arising from the employment such as extra work demands due to planned or unanticipated absences from work of other technicians, machinery and equipment breakdowns, peaks in demand during the production cycle, conflicts between the worker and his co-workers, and other matters.

15 Counsel for the respondent drew my attention to the decision of the Full Supreme Court of South Australia in the matter of Keen v Workers Rehabilitation and Compensation Corporation ("Keen"),[7] which addressed the approach to be taken in determining whether a worker has discharged the onus to prove that the whole or predominant cause of the alleged compensable condition was not reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment. The respondent submitted that the approach outlined by the Court in Keen with respect to s 30A(b)(iii) could also be appropriately applied to the inquiry under s 30A(b)(i) as to whether reasonable action taken in a reasonable manner to discipline or counsel a worker had been proven not to have wholly or predominantly caused the disability.

16 It may be that there is a fine line as to whether some of the actions of the respondent can be considered to have been counselling, so as to potentially come within s 30A(b)(i) of the Act,[8] and if not, as to whether they can be considered to be "administrative actions" comprising decisions or actions related to the workings or functioning of the workplace, which may potentially come within s 30A(b)(iii) of the Act, as opposed to decisions or actions related to the actual tasks performed by the worker, which may fall outside the relevant disqualifying provision.[9] As it happens, the basis of my decision does not require the close scrutiny of these potentially difficult questions.

17 Evidence was presented in an agreed Trial Book,[10] which contained statements of the worker, and of witnesses called by the respondent being John Cicchiello ("Mr Cicchiello"), Laboratory Supervisor, David Mullins ("Mr Mullins"), Quality Assurance Manager and Alison Sharman ("Ms Sharman") who at material times was employed as a Quality Assurance Engineer and Acting Laboratory Supervisor, although by the time of giving evidence she was no longer employed by the respondent. In addition to the statements contained in the Trial Book, the worker and these witnesses were examined and cross-examined. The Trial Book also contained numerous attachments to the statements of the worker and Mr Cicchiello comprising log book entries, diary notes, email records and other documentation, together with medical records and sundry other documentation relating to the various incidents said to be relevant to the worker's condition.

18 In addition, oral evidence was called by the respondent pursuant to a summons to witness from an employee named Meli Botei ("Mr Botei"), with whom the worker had the final altercation on 6 June 2003 which was said by the worker to be the predominant cause of his disability.

19 The Trial Book also contained various medical reports, importantly three reports of Dr Blakemore to the respondent dated 25 June 2003, 25 February 2004 and 10 December 2004, and a further report from Dr Blakemore dated 29 April 2005 was admitted as Exhibit A1.

Credibility of the witnesses

20 I make some general comments at this stage in relation to my impression of the witnesses. The worker was an unimpressive witness. He presented as a person with a difficult and unusual personality who held and expressed dogmatic, rigid and uncompromising views. As his counsel noted, he tends to see things in "black and white". He was prone to react in an oversensitive manner to various events, and I find that his account of certain events in his written and oral evidence was greatly exaggerated, although many of these instances concerned peripheral events. Some of his evidence was evasive, lacking in credibility or disingenuous, particularly his denials or non acceptance of the fact that on certain occasions he had carried out tasks contrary to instructions or that he had received informal counselling with respect to his conduct, and his explanations for not following instructions where such was admitted. He was far too ready to accuse Mr Cicchiello of vindictiveness, harassment, malice and dishonesty with respect to actions Mr Cicchiello took or statements he made in evidence in relation to the worker. The worker lacked insight into his own behaviour, and was unable to accept that his conduct might on occasions have contributed to difficulties which developed in his relations with co-workers and his supervisor.

21 I qualify the matters set out above by noting that there are likely to be a number of causes for the unsatisfactory presentation of the worker as a witness. The worker's personality had much to do with his problems at work. His perceived success in his employment in the initial stages and the positive recognition which flowed from that was of great importance to his sense of self worth and esteem. Until July 2002 at least, he appears to have carried out his work satisfactorily and without any undue conflict or stress despite cost cutting pressures which had been adversely affecting the workload imposed on technicians for some time. The worker was clearly distressed by the turn which events took during the second half of 2002 and in 2003. My unfavourable impression of him as a witness must be considered in light of the loss of self worth and esteem which followed from his inability to cope with the various matters arising from his employment which led to his disability, and in light of the fact that during this time he became quite mentally unwell and remained so at the time of giving his evidence.

22 Because of these matters, there are a number of instances (which are detailed below) where I consider the worker's evidence ought not to be preferred to that of other witnesses, or where I consider that his inability to recall certain events indicates at best either a substantially impaired or suppressed memory or at worst a lack of credibility. This does not mean that I am unable to accept the worker's account of certain critical events. In this regard I have been assisted by the fact that some details of many of the incidents which occurred during the course of the worker's employment have been documented in log book notes or internal memos and emails, and thus provide an objective background against which conflicting evidence as to events surrounding those incidents can be assessed.

23 Most of the conflict in the evidence was between the worker and his supervisor Mr Cicchiello. The circumstances in which Mr Cicchiello came to his new position as Laboratory Supervisor in July 2002 produced immediate difficulties and challenges for him. He had experience in quality, safety and supervision, but was new to the detail of the respondent's operations, and had to adjust in challenging circumstances. When he commenced his employment he seems to have been informed that the worker had conflicts with previous supervisors, that he was not well liked, and that the worker was annoyed that he had missed out on the supervisor's position to Mr Cicchiello.[11] The provision of this information to Mr Cicchiello and the expectation created that the worker may be a difficult employee to deal with, together with the fact that he was replacing the previous supervisor Mr Gareth Widdeson ("Mr Widdeson"), with whom the worker stated he had a good relationship, did not help their relationship to develop appropriately.

24 I consider Mr Cicchiello endeavoured to give a truthful recollection of events. The disputed evidence mainly relates to whether or not the worker was given certain instructions or directions by Mr Cicchiello, and whether the worker received counselling on occasions from Mr Cicchiello, and as to exchanges between them in this context. Many of the incidents which occurred between the two were documented by Mr Cicchiello in what were presented as (in the main) contemporaneous diary notes, although in fact, some appear to have been made well after the events in question. I suspect to some extent these notes sanitise the tone of the relationship between the two so as to put Mr Cicchiello in a better light. I think his conduct was at times more antagonistic to the worker than he was prepared to admit.

25 Nevertheless where there are conflicts between the evidence of Mr Cicchiello and that of the worker, I prefer that of Mr Cicchiello except where otherwise stated. The narrative history of causative events will be set out on this basis.

26 Whilst Mr Mullins, the Quality Assurance Manager, was not involved in the supervision of the worker nearly as much as Mr Cicchiello, he gave evidence presenting an overview as to the problems which developed with the worker. I found much of that evidence to be unhelpful, as it frequently contained glib asides or sweeping generalisations (much of it being unsupported assumption based on information obtained from others) which were very negative and dismissive of the worker. Whilst Mr Mullins may have had good reason to be unhappy with the worker's performance, his evidence indicated a degree of exasperation and a state of mind which I consider contributed to a failure to deal appropriately with ongoing performance issues.[12]

27 Ms Sharman was an impressive witness who gave evidence as to largely peripheral matters which I will address briefly where necessary. Her evidence is important in that it highlights the unreliability of the evidence of the worker, and the need to treat his evidence with caution. I accept the submission of counsel for the respondent that this is particularly demonstrated by reference to the conflicts between her evidence and that of the worker on the issue of overtime for which the worker was booked for Friday 28 June 2002 and Sunday 30 June 2002. I do not intend to go into the details of that conflict other than to say that Ms Sharman's evidence and her contemporaneous diary notes showed the worker to be quite incorrect in his denial that on two occasions he had either cancelled an agreement to do overtime without adequate notice or had failed to turn up without giving notification beforehand as required. His intransigence on these peripheral matters in the face of overwhelming evidence to the contrary did not reflect well upon him. [13]

28 I will refer to the evidence of Mr Botei when addressing the one incident in which he was involved on the day the worker became incapacitated for work.

29 The worker was born on 26 August 1971. He is married with three children. He was educated to year 12. Upon leaving school he obtained employment as a technician, and after one year he left that employment to work as a machine operator where he remained for about five years until he was retrenched. He was then a self-employed opal miner for a period of five years, and obtained employment for a period of time in 1999 as a metal slitting operator. In May 1999 he took up employment with the respondent as a machine operator. His role was to build tyres, service machines and operate machinery.

30 The worker appeared quite successful in his role as machine operator. He did not take any sick leave, and received official recognition from the respondent for a perfect attendance in the year 2000.[14]

31 In late 2000 the respondent advertised for an internal vacancy with respect to the position of technician. The worker applied for the position, and was successful. He was officially appointed to the position with effect from 8 January 2001 under the supervision of Mr Widdeson. A "performance planning and review" conducted by the employer on 30 May 2001 was positive and noted that the worker had adapted well to his new position and demonstrated eagerness to learn and ability and willingness to contribute. The worker continued to apply himself diligently to his duties, such that for the calendar year 2001 he again received a congratulatory award on "the completion of perfect attendance" for the year. As observed above, the worker appeared to carry out his duties from that time until July 2002 without any adverse issues arising with respect to his performance.

32 At all relevant times, the laboratory was operational on a 24 hour basis and the technicians worked on rotating eight hour shifts over a three week period, being day shift, afternoon shift and night shift.[15] It was the practice for the technicians to work in pairs, although each technician generally carried out his or her work alone and independently on one side of the laboratory or the other, although they might alternate tasks during the shift, or occasionally seek assistance from the other when circumstances required it. On one side of the laboratory were situated what were called the rheometer machines ("rheos") and the viscometer. The rheos, of which there were three, were used to test rubber samples sent to the laboratory by the Banbury machines ("Banburys") during production runs. The viscometer was used for specific gravity testing as well as some rubber milling. The other side of the laboratory contained machinery more focussed on testing of fabric and incoming material, with tests including tensile properties, adhesion, the curing rate and so on.

33 Throughout the period of time the worker was employed as a technician he generally worked his shift with another technician who had been with the respondent for over 25 years, namely Percy Humphries ("Mr Humphries"), with whom the worker said he got on well and respected.

34 Overtime work was available beyond the eight hours of ordinary time each day during the week when special work came in, or if one of the other technicians was away from work for some reason. There was also weekend overtime work available when the Banburys were operating. Overtime was performed on a voluntary basis. No demands were placed on the technicians to perform overtime.

35 Mr Widdeson resigned from his position as Laboratory Supervisor on 2 April 2002. After seeking Mr Widdeson's advice, the worker applied for the position, even though he says he did not expect to be successful in the application given the relatively short time he had been working as a technician. He did not get the job and Mr Cicchiello was appointed to the position from outside Bridgestone as from 7 July 2002. In the meantime Ms Sharman had been the Acting Supervisor of the laboratory. The worker said he was not concerned at his not having obtained the supervisor position. Although both Mr Mullins and Mr Cicchiello suggested in their evidence that the worker's resentment at Mr Cicchiello being appointed over him was a reason for his alleged unsatisfactory work performance, I do not consider there to be objective support for these assertions.

36 Coincidentally, in June 2002, shortly before Mr Cicchiello commenced, Mr Mullins was also appointed from outside the respondent's organisation to take up a vacancy in the position of Quality Assurance Manager, one level above that of Mr Cicchiello.

Alleged causative events July 2002 - December 2002

37 I will now set out the evidence and my findings in relation to the various events relevant to the causation of the worker's condition when he left work on 6 June 2003. The worker agreed with the suggestion of counsel for the respondent that reference to the log book whilst the worker prepared his statement assisted him in establishing and detailing a pattern of events which he thought to be significant.[16] Not all of the many matters to which the worker referred in his evidence can be said to have been part of the matrix of causes of his disabling condition when he ceased work. I do not consider it necessary to deal with many of the matters which have been referred to.

38 In this section of my reasons I will make findings as to those events which have contributed to the causes of the worker's disability. Having identified such causative events, I will then analyse their import in terms of the provisions of s 30A of the Act.

39 Of those matters which I do address, some may have caused stress to the worker at the time of their occurrence, and for some time afterwards, but had dissipated by June 2003. Nevertheless, details of some of these events need to be recorded in order to appreciate the nature and personality of the worker, the manner in which he reacted to certain events and situations, the unreliability of certain aspects of his evidence and the way in which the worker, Mr Cicchiello and Mr Mullins interrelated with one another.

40 In this context I comment that I do not agree with the approach of either counsel for the worker or for the respondent[17] that the events of the calendar year 2002 are only relevant for the most part by way of background or indirectly with respect to credibility. I consider that at least one of the events from that time caused significant stress to the worker and contributed substantially to the disability which led to him ceasing work, this being the "mill incident" of 11 and 12 September 2002 and its aftermath.

41 The various relevant events can be broken down into the following broad categories, although it should be understood that events overlap to some extent, and may be addressed in more than one of the specified categories:-

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workload pressures arising from staff shortages due to leave and unplanned absences, machinery breakdowns, the amount of overtime worked, peaks in production demands and like matters which could be said to inevitably arise in the course of the operations of a large manufacturer such as the respondent

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abuse and intimidation of the worker by co-workers

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incidents involving malfunctioning equipment which the worker said resulted in "near miss" incidents which caused him shock and which he said had the potential to cause him serious injury or death and the manner in which the respondent dealt with such incidents

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conflicts in his dealings in relation to a variety of matters with his immediate supervisor Mr Cicchiello and to a lesser extent with Mr Mullins.

Workload pressures arising from staff shortages and other matters

42 The nature of the work of technicians, being an integral part of the quality assurance procedures related to the production process, was such that the technicians were vulnerable to increases in work pressure and workload for a variety of reasons, including staff absences due to illness or leave, lack of overtime volunteers and the difficulty of readily finding appropriately qualified replacements, machinery breakdowns and failures, and peaks in the production cycle. The timely testing of production samples and prompt feedback of results by the technicians to the production area was essential. If the technicians fell behind in their work, and it was later ascertained by them or the Technical Services Department that production samples left with them for testing but not yet reached fell outside certain required parameters for a safe and acceptable product, there could be serious consequences. These might include down time in the production process while potentially defective batches of product were located and recalled, at substantial cost to the respondent, as well as serious and potentially catastrophic consequences should defective product find its way to the market.

43 There was particular difficulty with shortages in the number of technicians available for work during the period August 2002 - October 2002 due to some taking long periods of leave and to unanticipated absences through injury. The problems caused by the shortages took quite some time to address according to Mr Mullins, in part due to difficulties in reaching an outcome from negotiations with the relevant union as to procedures and limitations on the engagement of contract technicians to address the shortages.[18]

44 I do not consider that these shortages in themselves caused any particular stress to the worker. He chose to work a substantial amount of overtime, and indeed prided himself on so doing, and appears to have done so throughout most of his employment as a technician apart from a period when he was disabled by ankle soreness from December 2002 to January 2003. As noted by Mr Cicchiello, during the three months prior to 29 November 2002 the technicians were two employees down and the worker did as much as 20-25 hours per week overtime voluntarily.[19] The worker's attendance record would have also been perfect for the 2002 calendar year had he not taken a few days sick leave at the end of November 2002 for reasons outlined below.

45 The worker attached to his statement a list of machinery breakdowns during the period 23 January 2002 to 4 June 2003, and asserted that these problems, and in particular the repeated breakdown in the automatic rheometer machine ("rheo #1"), adversely affected staff morale, caused internal difficulties, and prevented technicians from completing testing work on their shifts with the result that unfinished work had to be left behind for the next shift to complete.[20] It was inferred that these matters all added to his stress at work.

46 I do not consider that the staff shortages, and the level of overtime as such, and any difficulties arising from the same, contributed to the causes of the worker's disability, and indeed he said as much to Dr Blakemore as noted in the extract from Dr Blakemore's first report referred to above.[21] Nor did the machinery breakdowns and the consequent difficulty in keeping up with work, or fluctuating production demands, cause ongoing stress contributing to the worker's disability except to the extent such may have been related to certain events which occurred over the period April - June 2003, combined with a dispute over staffing levels required for certain testing procedures. I address these matters below.

47 It was obviously in the interests of management of the respondent to address staff shortages and machinery breakdowns as best it could, and I consider that it did. As I have found these issues did not cause stress to the worker which contributed to his disability, I need not consider the nature of the actions taken by the respondent any further.

Conflict with co-workers

48 As a result of some difficulties in the relationship between the worker in his role as a technician and some production floor workers, it appears that he became the butt of various gibes and derogatory comments over a period of time which caused him considerable distress, and which he suggests contributed to his condition. He further asserts that inadequate action was taken by his supervisors to deal with the issue.

49 Ms Sharman referred to an incident on 5 July 2002, when the worker had returned to the laboratory having collected some "poly" samples. He was very upset and throwing utensils around the laboratory. Upon making enquiry as to what was wrong, Ms Sharman was shown the piece of poly which had some derogatory comments written or marked on it about the worker. Upon making further enquiry, it appeared to Ms Sharman that there may have been some incident involving conflict between the worker and some production operators. She immediately contacted the Production Supervisor, Mr Hazel, who indicated that the worker had "had a go" at some of the production operators. Upon the worker becoming annoyed when that suggestion was relayed to him, she arranged to meet the supervisor, and showed him the poly and what was written on it, whereupon she says Mr Hazel immediately returned to the production floor to reprimand the operators. Apparently at about that time the worker contacted his union representative. The worker suggested that inadequate action was taken by management to deal with the matter, and that nothing would have been done by Ms Sharman had he not contacted his union representative. I do not accept that evidence. In the circumstances, Ms Sharman took prompt and appropriate action with respect to the issues raised by the worker in relation to this event.[22]

50 The worker also alleged that he was subjected to a period of ongoing denigration and humiliation by production workers from August 2002 until November 2002. He produced copies of various "collection check sheets" which were monthly sample collection sheets distributed in each production area. As I understood it, the practice was that samples of product would be delivered to the laboratory, or collected by the technicians for testing during the relevant period. A number of the sample collection sheets bore anonymous comments, apparently emanating from production workers, which the worker considered to be offensive and derogatory, and understandably so.[23] Two rubber samples were also tendered which bore comments to which the worker took offence. He said he felt humiliated and embarrassed by these comments, and that he sought assistance from his supervisor, but this brought no respite.[24] Mr Cicchiello said he acted on two occasions to do what he could to stop these incidents, and that the worker could have taken the matter further had he been unhappy with his efforts in this regard.[25]

51 I do not think it necessary to resolve any conflict of evidence in this regard. The evidence given by the worker does not persuade me that any distress caused by these events, which had ceased by November 2002 at the latest, was contributing to the worker's condition by the time he ceased work in June 2003. I note in any event that this particular issue does not appear to be included in clear terms in the list of causative factors provided by the worker with his claim form.

52 There are further allegations of abuse directed towards the worker on certain particular occasions, but these matters are better addressed in the context of the evidence concerning the worker's relationship with his supervisor.

"Near miss" incidents

Mill malfunction 11 June 2002 or 23 July 2002

53 Rubber samples had to be milled on a daily basis by the technicians who used the mill machine for this purpose to test the rubber before it could be released into production. The mill had an electric motor which the worker estimated to weigh approximately 400 kilograms. When the worker pushed the start button on the machine to commence a milling process on a date which he said was 11 June 2002, the bolts that secured the electric motor snapped off, as a result of which the motor swung violently towards him. He said he thought he was "going to die" and he immediately ran to the next room. As it was, the motor did not fall because it remained suspended by a thick electric cable. He came back into the room and switched the motor off. He was very shaken up by the incident, and felt that his safety "was not being given priority", as similar problems had been reported before and in his view had not been acted upon. He reported the incident. It was investigated by the whole factory management team. He said they expressed their shock at the incident.[26]

54 Mr Cicchiello refers in his statement to an incident which occurred on 23 July 2002, rather than 11 June 2002 as noted by the worker, but it appears to be the same event.[27] He appeared to concede that there was an incident when the mill motor mounts broke, although he makes no comment as to whether or not the incident may have been one which caused significant concern to the worker. The Maintenance Supervisor had informed Mr Cicchiello that there was a low risk of any physical injury as the motor was sufficiently restrained by a guard on the drive mechanism. The problem was said to have been fixed immediately, and the worker did not disagree with this.[28]

55 This is not to say however, that the incident did not occur as described by the worker, or that it did not cause significant alarm to him at the time. I find that it did occur, and cause alarm, although the worker is likely to have overstated the effect of the incident in this regard. Despite the worker's assertion that there were long standing problems with the mill which should have been attended to earlier or were not adequately dealt with, I do not consider there to be evidence to support any dilatory conduct by the respondent with respect to its maintenance. However, given that the incident happened, and the worker's capacity to overreact to a given situation, I find that the fact of its occurrence and residual concerns in relation to his safety contributed to the unfortunate consequences of a further incident with the mill in September 2002 to which I now refer.

56 I consider the effects of the September incidents to be important, not so much because of the risk of physical injury to the worker, which I find was negligible, or the extent to which he suffered shock or was frightened of injury, which I find was a consequence of the incidents although exaggerated by the worker, but rather because of the way in which the matter was dealt with by the worker and his supervisors. The incidents and the unsatisfactory nature of the communications between the worker and his supervisors with respect to them were the cause of a significant deterioration in their relationship, particularly that of the worker and Mr Cicchiello. I address this aspect of the matter below under the part of the reasons concerning the worker's relationship with Mr Cicchiello. For the moment I set out the facts concerning the incidents, and the degree of the threat of physical harm to the worker, and the extent to which this aspect contributed to his ongoing disability.

57 The worker said that he was using the mill on 11 September 2002 on night shift when it became overloaded. In this situation, he said the usual practice was to put the mill in reverse. The worker did so and then he heard a loud bang from within the mill. He immediately stopped the machine. The malfunction appeared to the worker to be of a similar nature to that which his partner Mr Humphries had been complaining about one month previously. He emailed Mr Cicchiello at 2.27 am giving a general description of the nature of the problem as far as he was aware of it and advised that he had left an "out of service" tag on the machine so that it would not be used until repaired.[29] He also left a note in the log book advising something had broken inside the mill and referred in the note to the email.[30]

58 Mr Cicchiello said that when he arrived on day shift he had no detail as to what the actual problem with the mill was, although this does not appear to be quite correct unless he had not read the email sent by the worker, which gave some indication of the nature of the problem.[31] In any event, the worker was not contacted during the day on 11 September 2002 for further information, understandably so, given that he was probably at home asleep having completed his night shift. A maintenance fitter was called to inspect the machine, and apparently identified some loose bolts on the upper housing of the mill. He tightened them. He removed what was said to be a "Danger" tag placed on the mill by the worker (who described it as a "do not use" or "out of service" tag).

59 After the maintenance fitter completed his repairs, Mr Cicchiello used the machine to mill some samples that required testing. He had no problems with the operation of the mill. The mill was thus left available for use by the technicians. When the worker attended his next night shift he assumed the mill was operational as the tag had been removed. There was no log book note or other form of communication from Mr Cicchiello to the worker as to whether the apparent problem with the mill the night before had been diagnosed and if so what had been done to fix it.

60 The worker commenced to use the mill. When he tried to reverse the mill to remove a rubber sample, he said the entire upper housing suddenly moved towards him. He said the casing weighed 50 - 100 kilograms. The worker felt particularly vulnerable in such a situation, because in order to put the mill in reverse, one had to stand close to the mill and stretch one's arms and hands horizontally on either side of the mill to reach and press the reverse buttons. In such a position the operator's face was quite close to the mill. The worker said that whilst he was in this position, the mill housing suddenly moved towards his face. He immediately released the reverse buttons. He felt very shaken, and said he believed that if the structure had fallen on him he would have been killed. He again ran into the next room in fright. He was particularly shocked because he leapt to the conclusion that the mill had been placed back in operation without proper safety checks. He was wrong in this assumption given what Mr Cicchiello had arranged to be done during the day, but was not prepared to concede this in cross examination.[32]

61 Whilst in this agitated frame of mind, the worker sent another email to Mr Cicchiello.[33] The email read as follows:-

"Tonight as I went to use the mill, the repair obviously was not carried out. Upon reversing the mill to remove the stock the whole upper main housing is moving. The part that broke last night appears to be the bolts that were holding the mills together. John it is scary to use the mill at the best of times, but to remove the (out of service) tag and say it is ok to use without investigation and repair is irresponsible. The possibility of the top main housing falling on top of the operator is there. I should trust the equipment that I use and that concerns like this are taken seriously. I would like to go home to my family in one whole piece.

62 This email was received by Mr Cicchiello when he attended work for day shift on Thursday 12 September 2002, and provoked the following response sent at 8.50 am[34]:-

The mill was repaired yesterday and the "Out of service" tag was removed by the qualified fitter that completed the job. I would never remove a Danger Tag as I believe this would be a dismissible offence. I personally inspected the mill and used it yesterday without incident. Meli has shown me the current issue you have described.

GET YOUR FACTS STRAIGHT BEFORE YOU ACCUSE ME OF BEING IRRESPONSIBLE."

63 It is important to note that this email exchange was sent on the internal email site available for all technicians to see, as was a further response from the worker later on the evening of 12 September 2002, which indicated he maintained his position and that he would raise safety issues with other people that did care for his safety and that he felt Mr Cicchiello was "getting quite upset and arrogant".[35]

64 On the next day shift Mr Cicchiello called back the maintenance fitter for a further examination of the mill, on which occasion an additional defect comprising cracks in the rear left hand side of the upper housing were detected. The mill was placed out of service and repairs were commenced.

65 The worker says that he relayed his concerns to Mr Mullins and a Mr Kearns, a Health and Safety Manager, and to the union delegates Mr Matthews and Mr Marshall. Mr Mullins sent an email on 13 September 2002 to the technicians, Mr Cicchiello, Mr Kearns and the union representatives advising of his intention to meet with the worker on Monday 16 September 2002 "to discuss exactly where he has not followed proper procedure, and also his intention not to follow it in the future". It was not explained what the latter part of this message was alluding to.[36]

66 On 16 September 2002 Mr Mullins met with the worker about the incident. In his statement Mr Mullins described the actions of the worker as a "failure to follow proper procedure" and asserted that "several lab mill breakdowns were caused directly by (the worker's) failure to comply with his training". His evidence was that when he advised the worker of the appropriate procedure to adopt with respect to the process in which he was engaged when the mill broke down on 11 September 2002, the worker complained that the required procedure took longer. Mr Mullins asserted that the worker displayed a consistent attitude to the avoiding of established practices "throughout his time at Bridgestone". Mr Mullins equated this to "reckless shortcuts" by the worker whenever he was not closely supervised.[37]

67 The worker says that following these events his relationship with Mr Cicchiello began to deteriorate, and that Mr Cicchiello began to intimidate and abuse him.[38]

68 Mr Cicchiello said that the upper housing of the mill could not possibly have moved violently towards the worker when he activated the mill on 12 September 2002 so as to present some imminent threat of harm as asserted. The upper housing was still held in place by six bolts which could result in minor movement only, and certainly not such as to cause any serious injury. I accept this to be so.

69 There was a considerable degree of exaggeration by the worker as to the extent to which the incident gave rise to any threat of physical injury, and I find that the machine may have moved towards him to a minimal extent only.[39] However, I accept that he may have suffered considerable alarm, shock and fright as a result, particularly because of the vulnerable position he was in at the time with his face quite close to the mill and his arms extended along each side. The tendency to exaggerate and embellish the seriousness of the event would most likely have been heightened by his misplaced sense of grievance that the machine had not been attended to after the incident the night before, and the perception held by the worker (which would appear to have no objective basis in fact) that appropriate measures were not being taken generally with respect to the safety and maintenance of machinery, this perception relating back in part to the first mill incident in June/July 2002.

70 I find that the stress resulting from the "near miss" incidents, particularly that of 12 September 2002, combined with the nature of the communications between the worker, Mr Cicchiello and Mr Mullins as to the incidents on 11 and 12 September 2002, was a cause of significant ongoing problems and a contributing cause of the worker's disability. This leads me to the topic of the relationship between the worker and Mr Cicchiello, the unsatisfactory nature of which I consider was the predominant cause of the disability the subject of the claim, and which had its genesis in these events.

Conflict with supervisors and in particular Mr Cicchiello

71 Apart from the adverse preconceptions raised in relation to the worker when he commenced employment, to which I adverted above,[40] there were immediate difficulties for Mr Cicchiello to contend with due to ongoing equipment breakdowns in the laboratory area and a confluence of circumstances which caused an ongoing shortage of technicians. This no doubt placed pressure on all those working in the laboratory. It would appear nevertheless that the work performance of the worker was seen as suitable by Mr Cicchiello up until about September 2002,[41] and that from the worker's perspective there had been no conflicts before that time.

72 The key element which led to the ongoing problems arising from the events of 11 and 12 September 2002 was the lack of adequate communication, and the inappropriate nature of the communication which did occur. Difficulties in communication were to some extent unavoidable because of the fact that both Mr Cicchiello and Mr Mullins worked day shift from 8.00 am to 5.00 pm, whereas the technicians worked rotating shifts, such that personal contact might be made on a regular daily basis perhaps about one week in three, with some cross-over when on afternoon shift. Understandably, communications between the supervisor and the technicians often took place by remote means such as the log book, individual notes and the internal email system.

73 As observed above, no message appears to have been conveyed to the worker before he commenced his shift on 12 September 2002 as to what, if any, problem had been diagnosed with respect to the operation of the mill the day before and what had been done. Thus, when another problem emerged as the worker was operating the mill the next shift which caused him considerable fright, the lack of communication contributed to his ill informed belief that nothing had been done to service the mill in the meantime, and that the problem of which he had notified his supervisor of the night before had not been fixed. In the heat of the moment, the worker sent a further email to Mr Cicchiello which, consistently with the worker's tendency to overdramatise and exaggerate, accused Mr Cicchiello of irresponsibility and of not taking concerns with respect to safety seriously.

74 One has to wonder at the validity and objectivity of the comments made by Mr Mullins in his email of 13 September 2003, and in his account of the meeting with the worker on 16 September 2003. He had only commenced employment with the respondent in June 2002, after the worker had been in his current position for 18 months. His comments are dismissive of the worker's commitment to training and performance which was acknowledged by the performance and planning review of 30 May 2001. Although no further such review had taken place by 12 September 2002, there appear to have been no recorded incidents (apart from the overtime issue with Ms Sharman in June 2002) to suggest that the worker's approach had become unsatisfactory since May 2001, far from being demonstrative of a consistent failure to comply with training and company procedures as asserted by Mr Mullins. I have already referred above to the tendency of Mr Mullins to make sweeping and unsupported statements about the worker in his written evidence.

75 It is quite clear from the evidence of the worker that he considered the events of 11 and 12 September 2002 to be a prime cause of his ongoing problems, and that he believed that he was from then on "going to be taught a lesson". He believed subsequent actions of Mr Cicchiello to be an ongoing campaign of victimisation and harassment against him. I accept the evidence of the worker as to the belief he held in this regard, notwithstanding my concerns as to his credibility in relation to many aspects of his other evidence. In so saying I do not suggest that his belief reflected the true position, for I do not consider that Mr Cicchiello embarked upon a campaign of victimisation and harassment. I think it important to highlight some aspects of his evidence in this regard. I refer to the following excerpts from his cross examination:-

**"**Q. We can look at that incident in a moment in more detail, but what he said (Mr Cicchiello) was you'd accused him of putting the machine back without having attended to it for repair.

Q.

He wrote back and said, "Get your facts straight before you accuse me of not doing my job properly," or words to that effect.

**"**Q. When do you say that problem started with Mr Cicchiello.

A.

It started with that incident when he said to get my facts straight. I believe it started from that."[43]

"Q. So you were given an opportunity to express your thoughts about the matter.

A.

If you can see, before my response I've addressed the issue to John Cicchiello and John Cicchiello only. I thought that was an issue for the laboratory. After this incident I decided to raise the issue with the health and safety officer of Bridgestone Mr John Kearns, his senior manager which was David Mullins, Chris Matthews my union delegate, and also another, Andy Marshall, as my union delegate. I was under the impression because of his outburst, "Get your facts straight", that safety wasn't concerned, that he was getting - dismissible offence. I believed that he was feeling that I was trying to dismiss him or some sort of sense so obviously he was getting quite angry with the fact that he was shown to not do his job. So from then on - as I said this is when this issue between John Cicchiello and myself deteriorated - I decided to issue all the matters regarding safety of the laboratory to people that needed to know. So I informed John Kearns about the issues that I've had, which is the company health and safety officer. I've informed Dave Mullins, which is my manager, QA manager. I also informed both of my union delegates that I'm having issues here regarding my safety that are not being adhered to and they have been treated like some sort of trivial matters, which I should not even think that it should be even considered.

Q.

That was based on you being of the view that the machine had swung towards you.

A.

It was based on the, "Get your facts straight." It was arrogant when it was my safety, my life. For him to say, "Get your facts right," when my life was in danger - I don't think that that was appropriate for him to state."[44]

"A. At the time when I was under the impression that I was going to be killed, I was very upset and I was very tormented by it. As I said, it wasn't fixed. It was his job to provide me with safe - it's his job that I don't get killed. That's his job. I shouldn't be killed at work. We are here now because of that.

A. That's right, and I was shaken up and incredibly distressed over it.

76 The subsequent conflicts with Mr Cicchiello flowed from this setting. As I state below in the context of consideration of s 30A of the Act, much of the ongoing interreaction in 2002 after this time could be said to have occurred in a context in which Mr Cicchiello was taking reasonable action in a reasonable manner with respect to the worker's employment, or alternatively, reasonable action in a reasonable manner to discipline or counsel the worker. In my view however, substantial and ongoing damage had been done to the relationship as a result of the events of 11 and 12 September 2002 and its immediate aftermath, such that the worker saw subsequent events from a distorted perspective, which remained the case until he ceased employment.

77 Confirmation of the strained relations as between Mr Cicchiello and the worker which followed immediately from the "mill incident" of 12 September 2002 is contained in an email sent from Mr Cicchiello to Mr Mullins on 20 September 2002 headed "Disciplinary Action - AW".[46] The email appears to have been in response to another email, presumably from Mr Mullins, which was not in evidence, but it clearly relates to the mill incidents of 11 and 12 September 2002, and presumably to the meeting between the worker and Mr Mullins on 16 September 2002. It read as follows:-

"This may be difficult to prove, I spoke to Allen last night about stuff.

He will argue that there is no BSP[47] on how to operate the Mill

Did general wear and tear lead to the motor breaking off it's mounts (this happened in my second week here, I did notice the drive housing move a little, but I had no idea what was going on).

He was shooting his mouth off saying he would go on stress leave and get his lawyer involved if he believed he was being treated unfairly. Blah, blah, blah."

78 Whilst neither Mr Cicchiello nor Mr Mullins agreed that the sending of an email in such a form was not appropriate organisational behaviour,[48] I consider it confirms that Mr Cicchiello regarded the worker at this stage to be a troublesome employee, and that the mill incidents and Mr Cicchiello's manner of dealing with them, clearly stressed the worker to a significant degree. The worker denied that he had said anything about going on stress leave, and referred to his email of the previous week, and said Mr Cicchiello was "just wrong" in what he said.[49] I have already mentioned that the worker generally denied that he made any statements that in any way reflected badly on him, or that he was on occasions informally counselled by Mr Cicchiello. For the most part I do not accept the worker's evidence in this regard, and I do not accept his denial of this reported statement about going on stress leave. However, the fact of it having been made supports the finding that the incidents affected him badly.

Counselling/Discussions with worker as to performance issues or work incidents September - October 2002

79 There were other incidents in 2002 which may have added to the stress of the worker, but in the case of many such incidents that stress was not ongoing or was not a major contributor to the cause of his disability. I set out a summary based on the evidence of Mr Cicchiello, which I accept in regard to these matters unless otherwise stated.

80 On 24 September 2002 when the worker was scheduled to work overtime, he left at the end of his normal shift after Mr Cicchiello appears to have given some instructions to the worker to which the worker took offence. Mr Cicchiello asserts that on looking at the overtime roster he noticed that the worker's initials had been "liquid papered out". Mr Cicchiello says that on Wednesday 25 September 2002 he instructed the worker to notify him by a note in the log book, email or verbally if he was going to cancel overtime. Mr Cicchiello made a written note with respect to this incident.[50]

81 The worker's response is that on this particular day he was asked by Mr Cicchiello to work overtime and asked to prepare "balance cement". The worker asserted that the request from Mr Cicchiello was part of a campaign of harassment following the incident in the mill in early September 2002. The worker felt he was being pressured and that Mr Cicchiello was rude to him, and it appears that he elected to not do the overtime, and went home.

82 The worker was also allegedly "informally counselled" on 9 October 2002 with respect to two alleged instances of failure to follow instructions given on 30 September 2002, one concerning a failure by the worker to test Banbury stock for specific gravity, and the other concerning a failure to mix two cans of balance cement.[51] These failures were said by the worker to arise out of his concerns at the instructions being contrary to previous endorsed practices of the respondent, or to previously agreed demarcations of work tasks. Mr Cicchiello made a note confirming the counselling on 9 October 2002.[52] The worker denies that he underwent any counselling with Mr Cicchiello in relation to these matters, informal or otherwise.

83 Whilst one could delve into the question as to whether more should have been done by Mr Cicchiello to ascertain the understanding of the worker in relation to the duties required of him by his position information description, and the application of previous understandings and union agreements with respect to job demarcation, and whether the letter of previous procedures had to be strictly followed or could be varied by log book instructions from Mr Cicchiello without more, it is not necessary. I find that any stress arising from the perception of the worker that he was being harassed by these instructions was minor and made no significant contribution to the causes of the worker's disabling condition.

Counselling with respect to alleged comment in relation to Kylie Victory

84 Kylie Victory ("Ms Victory") was a young female engaged as a contract technician in the laboratory following shortages of staff from August 2002. She apparently carried out her work to the satisfaction of the respondent to the extent that she was accepted for permanent employment after a period of time. However, the worker was of a different view as to her capabilities, and after a particular incident involving safety which he said caused him concern, he raised the matter of her capabilities on 9 October 2002 with Mr Cicchiello in the laboratory. The worker says he told Mr Cicchiello that Ms Victory was unsuitable for the job. He says he did not make any other comment or abuse Ms Victory, nor make the comment in such a tone or manner that it was heard by others.[53]

85 Mr Cicchiello has a different recall of this incident. He says that the worker came into the laboratory, and in front of three or four persons made a comment "at the top of his voice" to the effect "I am not working with her, she doesn't know what she's doing". Mr Cicchiello considered this to be inappropriate and offensive behaviour, and that the worker should have spoken to him privately if he had any issues.

86 Mr Cicchiello informed Ms Victory of the comments that had been made by the worker. As a consequence, she refused to work further with him. The adverse comment by the worker about Ms Victory quickly became known to other employees. On the same date as the incident, a production worker name Alan Murray ("Mr Murray") came into the laboratory. Apparently he was on a scheduled work break, and made it a habit to come to the laboratory and play computer games on the laboratory equipment. The worker said that Mr Murray proceeded to take issue with him as to the comments that he made about Ms Victory, and asked why he was causing trouble for his friend. Upon the worker attempting to tell Mr Murray that it was not a concern of his, Mr Murray then embarked upon a process of invective and abuse of the worker which appears to have proceeded for some time.[54]

87 Whilst there was some issue as to who initiated the exchange, the worker says that he asked Mr Cicchiello to remove Mr Murray from the laboratory and to tell Mr Murray to stop abusing him. He says Mr Cicchiello was ineffective in attempting to resolve the situation. The worker requested that security be called to have Mr Murray evicted. Mr Murray remained and continued to abuse the worker. The worker attempted to get on with his work. Mr Murray finally left. The worker says he was very shaken by the incident, felt alone and was humiliated. He did not feel that there was any support given to him by Mr Cicchiello, and that Mr Cicchiello did nothing to assist him. When he completed his work he went home feeling very bad and depressed. His feelings of humiliation and stress continued, heightened by the awareness of his fellow employees of the situation.

88 Mr Cicchiello's version is that the worker requested him to have Mr Murray leave the laboratory. He said he requested that Mr Murray do so, but he refused, saying, "I am on a break". At this stage the other technician present, Mr Byrne, intervened and told the worker that he had brought the altercation upon himself due to his insensitive comments in relation to Ms Victory. For reasons not connected with the incident, Mr Murray left his employment shortly afterwards.

89 After taking advice from a superior concerning the worker's behaviour, Mr Cicchiello spoke to the worker privately on an informal basis on 11 October 2002 regarding his comments about Ms Victory. Mr Cicchiello told the worker that it was inappropriate to have made his comments openly, and that he should have raised any concerns with Mr Cicchiello in private.

90 According to his note of the informal counselling,[55] Mr Cicchiello also took the opportunity to advise the worker that his work performance had been "very good" up until the last month, and asked the worker whether there were any personal issues affecting his performance. He offered him the opportunity to have external counselling, which Mr Cicchiello says he declined. He also reminded the worker that he had failed to follow instructions given in relation to the cancellation of overtime, and advised that the next time he failed to follow instructions Mr Cicchiello would take disciplinary action.

91 I accept Mr Cicchiello's evidence as to the circumstances in which the incident occurred and that he counselled the worker two days later in accordance with the record in his notes. The worker denies that Mr Cicchiello engaged in any counselling with him in relation to what he said about Ms Victory, or that he was offered informal counselling, or that he was told that disciplinary action might be taken.[56] He asserts that Mr Cicchiello is "lying about" the counselling, is "vindictive", and made the assertion that counselling had taken place so that the worker's claim would be denied.[57] I reject the worker's evidence. I am unable to say whether he is simply being untruthful about the matter, or whether he has such a deficient or distorted memory of the occasion that he cannot accept what occurred. He has fixed views as to what may constitute "counselling", and considers it to be a procedure which involves being "charged" with a breach of discipline and being found to be in the wrong.[58] In such a case he would have immediately called for his union representative. In any event, however one might try to rationalise the worker's response, I find he was informally counselled on this occasion, and consequently stressed by it.

Worker's unauthorised "repairs" of machine 13 November 2002 and subsequent "counselling"

92 Shortly after the worker commenced night shift at 11.00 pm on 13 November 2002, Mr Cicchiello arrived a few minutes later to attend to the fixing of a rheometer which had broken down earlier in the day but which he had not then been able to attend to. By the time he arrived two rheometers had broken down. Mr Cicchiello was able to repair one manual rheometer, but could not repair the automatic rheo #1. He placed an "Out of service" tag on rheo #1, which bore his name and was dated 13 November 2002 and included the words "Out of service - do not operate" with the reason being "Out of calibration". He says he instructed the worker and the other technician present not to use the machine.[59] The worker acknowledges that Mr Cicchiello placed a "Do not use" tag on it but denies that he was instructed verbally by Mr Cicchiello not to use the machine.

93 Be that as it may, the worker apparently recalled a similar problem having been encountered when Mr Widdeson was supervisor, which was resolved by switching the machine off and then on, as a result of which it would reset. He also made reference to Ms Sharman permitting him to attend to repairs of the rheometer when she was Acting Supervisor in April to July 2002. He says that he checked the previous log book and read the "instructions" to this effect. He then says he "followed the instructions" and the machine began working.[60] He then compared results received from rheo #1 with another rheo machine and found the results matched. He then continued with the testing of materials and informed the supervisor of what he had done, leaving it to the supervisor to determine whether to release the material upon seeing the data.[61]

94 The worker said he was merely trying to help and use his initiative, and that what he did was consistent with procedures he had successfully adopted before. I consider the evidence of the worker to be disingenuous. I find he was instructed not to use the machine, but chose to disobey those instructions and call past practice or procedures to his aid as a justification for such disobedience. It was a continuation of his campaign of non co-operation and passive resistance to Mr Cicchiello's authority.

95 Some consternation followed upon Mr Cicchiello's discovery that the machine had been used and some stock tested. As it was, the stock could ultimately be used, even though the worker's actions the previous shift had not fixed the machine. The following day Mr Cicchiello sent a letter to the worker dated 14 November 2002 requesting that a meeting be held on 18 November 2002 regarding the alleged failure to follow instructions and advised that it was to be a "formal counselling session", and that the worker was invited to have a union representative present. [62]

96 The worker professed to being shocked to discover that he was to be disciplined for disobeying instructions. He asserted that it was another example of vindictive behaviour by Mr Cicchiello, and determined that from then on he would do everything "by the book", as he was afraid to show initiative in case he was punished for it.[63] Then followed a prolonged saga before the so-called disciplinary meeting was held on 19 December 2002. Before dealing with that, I refer to certain further events in between.

97 The counselling meeting was postponed from 18 November 2002 due to the unavailability of the worker's union representative. On the following day the worker went on sick leave which covered the period from 19 November 2002 to 27 November 2002 (including one annual leave day). Up to this time, the worker says that he was heading for another "perfect attendance" record for the calendar year 2002. However, he took time off work during the periods mentioned above ostensibly to look after his son who had just had an operation. He said he did not have to do this, as his wife would usually do it, but that he wanted to because although he didn't want to have a sick day "I just couldn't handle it" and "I needed to stay home."[64] In his statement he said it was following the incident with the tag and the advice that he was being placed on a disciplinary charge that he became "so stressed and anxious that I took my first period of sick leave since being employed by Bridgestone in 1999."[65]

98 I consider that this evidence demonstrates that the worker was by this time becoming significantly stressed as a result of his conflicts with Mr Cicchiello which I find emanated from the email exchange on 12 September 2002, and subsequent incidents where formal counselling was attempted, and issues were raised with respect to his not following instructions, and particularly by the letter advising that a formal counselling session was to be held.

99 When the worker returned to work on 28 November 2002, there was immediate further conflict with Mr Cicchiello. On that day the worker discovered some notes written by Mr Cicchiello concerning himself on what the worker described as a "communal desk" in the laboratory which Mr Cicchiello said was the "supervisors desk". Be that as it may, the worker approached Mr Cicchiello and accused Mr Cicchiello of discriminating against him. Mr Cicchiello denied that he was victimising the worker, and said that he was simply keeping a record because of the delays in setting up the formal counselling meeting.

100 At this stage, Mr Cicchiello records the worker as having said "I'm not going to support you or help you out anymore - I'm not going to do any overtime anymore." Mr Cicchiello replied that that was "okay, overtime is voluntary."[66]

101 The worker maintained that he was being victimised because he could no longer do the right thing and whatever instruction he followed was wrong. Again, he was referring to events over the period from September 2002.[67] In this context, the worker sought to contrast his position with respect to another technician, David Byrne, who he asserted had ignored instructions on a particular occasion yet not been reprimanded. There was no basis for the worker to be inferring that his fellow technician was treated in a manner differently from that in which he would have been treated had the same thing occurred.[68]

102 On 29 November 2002 there was a further altercation between the worker and Mr Cicchiello. Mr Cicchiello recorded a note of an alleged "verbal threat" made by the worker to him.[69] He had asked the worker and Mr Humphries whether they could stay back and do overtime on that day. Mr Humphries said that he could not as he had a wedding to go to. Mr Cicchiello records the worker as saying "no, I'm not working, I want to see you drown."

103 The worker agreed that he did say that he could not do the overtime, but denied that he said words to the effect that he wanted to see Mr Cicchiello drown. He asserted that the only reason Mr Cicchiello recorded those words was because he was "malicious."[70] I find the worker did make the statement to Mr Cicchiello as alleged.

Counselling/disciplinary meeting December 2002

104 For reasons to do with the absence of various necessary participants, the formal counselling session was not held until 19 December 2002. The people present were the worker, Mr Mullins, Mr Cicchiello and two union representatives. Mr Cicchiello says there was a lengthy discussion between the parties with respect to the incident in question involving his operating rheo #1 contrary to instructions. He asserts that towards the end of the meeting, Mr Mullins began a sentence by saying "We understand that you were trying to do the right thing ...", and that before Mr Mullins had a chance to finish what he was saying, the union representatives intervened, and claimed that the respondent had acknowledged the worker had done nothing wrong. After a heated exchange between Mr Mullins and the union representatives, the meeting ended. The respondent took the matter no further. The respondent's witnesses did not appear to disagree with this summary of the outcome.

105 The worker saw the result as a vindication of his actions in seeking to fix rheo #1 on 13 November 2002, and as a rebuff for Mr Cicchiello. He did not profess to be labouring under any sense of grievance as a result of the attempt to discipline him after that date, given his satisfaction with the outcome. The worker's interpretation of the meeting was that Mr Mullins had conceded that the worker had done the right thing and that consequently he was not disciplined. The worker considered this to have been reinforced by Mr Allery.[71] As it happened therefore, this incident, which I find constituted reasonable action taken in a reasonable manner to counsel or discipline the worker, which added significantly to the stress from which the worker was already suffering during the one month leading up to it, was no longer causative of stress after that time because of the worker's sense of vindication. Given the circumstances, this may not have been warranted, and no doubt the respondent felt the process to have been unsatisfactory and to have been prematurely terminated. However that may be, I find that there was no relevant stressor continuing from the counselling action taken by the respondent in December 2002 which contributed to the disability which caused the worker to cease work.

Ankle problems

106 On 29 November 2002, which was the same day of the altercation when the worker said he wanted to see Mr Cicchiello "drown", the worker submitted a claim in relation to injury to his ankles, which he alleged had first arisen on 29 August 2002 during the course of his employment due to excessive standing and walking exacerbated by the frequency of overtime he was undertaking. The worker said that it was a coincidence that his condition had become such that he put in a claim on that day. The claim, which was for payment of medical expenses and compensation with respect to an alleged inability to work overtime, was ultimately accepted by the respondent in about February 2003. As a result of the delay in acceptance of the claim, and the worker's understanding that some investigation was undertaken, he became incensed at his treatment at the hands of the Workcover Co-ordinator and Mr Cicchiello.[72]

107 I consider that there was nothing untoward in the action taken by Bridgestone to investigate the claim made by the worker. By the same token, I find that once the worker considered that he was able to resume overtime as from January 2003 after various discussions, and the claim was subsequently accepted, there was no ongoing stress arising out of the circumstances of the claim which contributed to his disability.

108 However, there are two things to note with respect to the documentation arising out of the ankle injury claim. One is that an investigator engaged by the respondent annexed to his report on the claim of 14 January 2003 some notes made by Mr Cicchiello with respect to the confrontations referred to above on 28 November 2002 and 29 November 2002.[73] These notes take a different form from those presented as Appendix 5 and Appendix 6 to Mr Cicchiello's statement.[74] Whereas the notes given to the investigator were contained on one page, and had no subject headings, and had various corrections made to the hand written text, the Appendices were contained on two separate pages, and appear to be a "tidied up" version of notes earlier taken by Mr Cicchiello. The only significance of this is that the note provided to the investigator recorded that on 29 November 2002 after the worker said "I want to see you drown", also recorded was Mr Cicchiello's response, which was "we will see who drowns first". This responsive comment of Mr Cicchiello was not included in the Appendix which he attached to his statement. He was not questioned as to this discrepancy. However, the note appears to have been signed by him and would appear to more accurately record what was said on 29 November 2002. I think the relevance is that it is confirmation that Mr Cicchiello was finding the worker difficult to deal with, and that on this occasion he responded inappropriately to the worker's aggressive comment. It provides some support for the worker's statement to the effect that he felt from the time of the incident of September 2002 that he was not being treated appropriately.

109 A further document of relevance is a report which was obtained from Dr John Meegan, Occupational Physician, dated 6 February 2003 with respect to the ankle claim.[75] In the course of the history taken by Dr Meegan with respect to the ankle injury, he noted the following as part of the history given by the worker:-

"He reports some anger over his treatment placing a workcover claim feeling his validity had been questioned. However there is no significant psychological disturbance and there is a good relationship with management and co-workers"

110 The worker was cross-examined in relation to this record and indicated that in stating that there was a good relationship with management he was referring to his personnel manager, Mr Allery, who appears to have made a statement to him after the disciplinary meeting in December 2002 that the matter had been dropped, and that the worker had done nothing wrong. Thus the worker felt he had a good relationship with Mr Allery, although not with Mr Cicchiello or Mr Mullins.

111 With respect to the statement that he got on with his co-workers, the worker said:

"I was under the impression I got on really well with my workers - co-workers. I was doing my job. I have perfect attendance doing 12 hour days, 7 days a week. I didn't think there was any issues with co-workers."[76]

112 The worker suggested that he did not go into detail with respect to Mr Cicchiello and Mr Mullins because at the time he was there to discuss his ankle injury. He did not agree with the suggestion that as at that time, 6 February 2003, things were going along happily at work.[77]

113 I do not think that too much can be read into this one paragraph of the report of Dr Meegan. As the worker commented, he was attending upon Dr Meegan in relation to an ankle injury. I do not consider it surprising that the one sentence reference to his relationship with management and co-workers in the circumstances may not have reflected the true underlying situation which was not directly connected with the reason he was attending Dr Meegan. I consider the worker was still aggrieved at his treatment by Mr Cicchiello dating back to 11 and 12 September 2002, and that other matters including the abuse he received from Mr Murray and the perceived lack of action to protect him by Mr Cicchiello still rankled with him.

Events during 2003 leading up to worker's cessation of work on 6 June 2003

114 Apart from an incident involving a dispute with Ms Sharman when she was again Acting Supervisor of the laboratory for a few weeks in March 2003 when Mr Cicchiello was away, there appear to have been no recorded conflicts or issues relevant to the worker's disability until about mid April 2003. One aspect of the incident with Ms Sharman is instructive.

115 On 24 March 2003, when Ms Sharman was Relieving Supervisor she had cause to reprimand the worker for spending too long, in her view, talking to another person whilst he was supposed to be on duty. She says that when she spoke to the worker, he became aggressive towards her, swearing at her and continued in this vein for some considerable time. The worker maintained that whilst he was speaking to this worker he was doing his work at the same time, and considered that Ms Sharman had been rude and aggressive towards him. I do not accept his evidence in this regard. The purpose of referring to this incident is to note the comment made by Ms Sharman that when the worker left at the completion of his shift, still arguing the point with her, he made a comment to her to the effect "you can't do anything in this place without the supervisor doing this and that". This comment is indicative of ongoing issues as far as the worker was concerned with his supervisors (namely Mr Cicchiello apart from this period when Ms Sharman was relieving). The comment supports the finding I make that a sense of grievance resulting from his perception of the conduct of his supervisor from the year before was unresolved.

The union agreement in relation to the operation of the rheo machines

116 It would appear that since the time of the introduction of the automatic rheo #1, there had been frequent breakdowns, usually in its automatic loading mechanism, which meant that it then had to be operated manually as with the two other rheo machines. The function of the rheo machines was to test the mix of ingredients made into a rubber sample by the Banburys which operated in the production area. The Banburys mixed the chemicals and raw materials necessary to make processable rubber, and sometimes made a preliminary mix and at other times a final mix. On the occasion that the final mix was produced, a sample product from the Banbury was sent by vacuum chute to the laboratory so that the samples could be quickly examined. At times, depending upon the production schedule, there may be three Banburys operating at the same time each producing final mix samples for testing, which required the operation of three rheo machines by the technicians.

117 Usually one technician was engaged in the operation of a rheo machine, while the other technician attended to other tasks. On occasions however, workload difficulties would arise for the rheo machine operator if more than one Banbury was producing a final mix for testing, or if rheo #1 was not operating, such that it had to be manually loaded. Further, the ability of a technician to keep up with the testing of samples produced would be compromised if the samples were failing the rheo test standards. In that case, records had to be kept, red tickets completed with respect to abnormalities, and generally further work was required, such that often the technician engaged in the work would call for assistance from the other technician until the situation returned to normal.

118 Mr Cicchiello recorded[78] that on 10 April 2003 a meeting was organised with the staff union to discuss a formal agreement as to how many rheos a technician should be expected to operate at the one time, and as to action to be taken in the event that rheo # 1 was not operational, with particular reference to the situation when one, two or three Banburys were sending through samples. He referred to an informal discussion that he had with the union representative and three of the technicians, including the worker, prior to the union meeting. He said it was his opinion that a technician operating the rheometers should be capable of running two final mix stocks on his own, and that if a technician got into trouble with the workload as a result of stock failure, he could then call over the shift partner to assist. Mr Cicchiello said that some technicians were capable of running three final mixes on their own, as was he, even though he had not been long with Bridgestone.

119 The note made by Mr Cicchiello was that the worker's response to Mr Cicchiello's statement as to a technician being able to run two final mixes on his own was to say "if you expect me to run two final mixes by myself I will go straight to the medical centre."

120 In this regard, the worker explained that the process of testing samples manually was quite time consuming.[79] He was of the opinion that one technician was capable of running two stocks if the automatic rheo was operating together with a manual rheo, but that otherwise it was difficult. He said he could not run two final mixes at the same time.

121 He denied that he responded to the statement by Mr Cicchiello as detailed above, and said the reason Mr Cicchiello would have recorded the comment was "because he's malicious".[80] I do not accept the worker's evidence as to his denial or the motives of Mr Cicchiello.

122 A meeting between the union and management then followed. Mr Cicchiello did not attend that meeting as he was covering for the technicians whilst they were in attendance. Mr Mullins attended on behalf of management. As a result of that meeting, a document was produced which apparently set out the agreement reached as to the number of rheos to be operated by technicians in given circumstances.[81] Both Mr Cicchiello and Mr Mullins considered that the outcome of the meeting was an agreement that in a situation where all rheos were operational, and two Banburys were producing final mixes, only one technician was needed, with the qualification that if there was a high failure rate, the rheo technician may call over the second technician for assistance, or in general might do so if assistance was required due to a high workload situation.[82]

123 The worker interpreted the agreement to mean that if two Banburys were operating then there must be two technicians operating the two rheos necessary in these circumstances. The worker insisted that the agreement was not discretionary in that situation, and that for safety reasons, if there were two final mixes running on manual machines, one person could not monitor results of both tests at the same time. The worker did not concede that the agreement allowed for one technician to be operating two rheo machines with a discretion to call for assistance as necessary.[83] He considered that both Mr Cicchiello and Mr Mullins were wrong in their understandings.

124 It was against this background that conflicts arose as to the level of work done by the worker over the next few weeks. It may be that on this issue the worker was not being deliberately obtuse and uncooperative, but that he genuinely held a different view as to the effect of the agreement between the union and management on 10 April 2003. Whatever be the situation, I consider that as continuing workload issues and conflicts arose over the worker's interpretation, idiosyncratic though it may have been in the eyes of Mr Cicchiello, the issue should have been addressed by laboratory management and clarified. As things happened, it was an issue left to fester, and the continuing refusal of the worker to accept management's interpretation of what the agreement required was the major cause of the conflicts leading to the worker ceasing employment.

125 An explanation for the failure of the worker's supervisors to tackle the issue is likely to have been their difficulty in dealing with the worker, and their previous experience of the counselling process in December 2002. As Mr Mullins said, in what appears in part to be a reference to that episode:-

"Mr Cicchiello has documented a number of instances of informal sessions with Mr Word. The union representatives get very defensive about counselling occurring here and it takes a lot of work and time. The several times that I have been involved in counselling Mr Word about his performance he has been a difficult customer to deal with. When he is on night shift you can never get hold of him. When you get him on the day or afternoon shift then his union representative is never present when he needs him and he won't talk to anyone without them. So it often takes up to a month to tie him down, with his union representative, to talk to him about any issue."[84]

"I think Mr Word's poor work performance borders on grounds for dismissal...His behaviour had been consistently bad. It has been a week by week event, an ongoing dramatic performance by Mr Word. I think he enjoys creating trouble to minimise the amount of work that is required of him, regardless of how that behaviour affects the other people whom he works with."[85]

126 The above appears to confirm that management was at a loss as to how to deal with the worker. The failure to act over the period from April 2003 to June 2003 so as to address performance issues principally arising from the disputed interpretation of the agreement with the union was a major cause of the worker becoming disabled.

The practice as to "boxing" of samples for testing

127 Generally it appears that the understanding between the technicians was that as Banbury samples were sent to the laboratory, they should be tested on the rheos during the shift when they were received. If they were not all able to be attended to immediately, the samples might be "boxed" and attended to later, but ideally by the technicians on duty during the shift when the samples arrived carried out the necessary testing.

128 On 6 May 2003, when the worker was on duty with Mr Humphries, whilst three final mixes were being sent to the laboratory for testing, some of the samples were being boxed. Mr Cicchiello requested that Mr Humphries test the boxed final mix on one machine whilst the worker ran the other two final mixes, in accordance with Mr Cicchiello's understanding of the agreement, which allowed, as he described it, "two final mixes and two technicians with three operational rheos".

129 Mr Cicchiello asserts[86] that when he requested the worker to run two final mixes on his own, the response was "are you serious?" and when he repeated the question, the worker did not respond, removed his gloves and walked out of the laboratory returning a few minutes later and advising that he had an appointment to attend the health centre at 1.00 pm that day to see the sister because he had hurt his back. He then sat down for 30 minutes waiting until that time. Mr Cicchiello says that during this time Mr Humphries ran two final mixes on two rheos by himself. He says the worker attended on the medical centre and returned saying he had reported the injury but had not filled out an incident report at this time.

130 The worker's response was that the request that he run two rheos manually was not in accordance with the agreement reached with the union, and that as he had been experiencing some aggravation of back pain (arising from a work back injury suffered in 2000) he was concerned at his ability to carry out the necessary manual work managing two manual rheometers, and for that reason attended on the medical centre. He asserted that the timing of the incident was merely coincidental.[87]

131 The medical records show that the worker is recorded as having attended the medical centre at 12:30 pm that day reporting "aching lower back" with no specific incident but aggravation due to the repetitive nature of the work. He was given two Nurofen. It was recorded that he was "told to return if not okay". The note then referred to "inquiries from bosses?? Policital in nature,"[88] which followed from a later inquiry by Mr Mullins of the medical centre as to what had happened, Mr Mullins clearly believing the worker was not genuine.[89]

132 The worker took the request of Mr Cicchiello to be another example of Mr Cicchiello picking on him personally and ordering him to perform tasks contrary to an agreement which had been made between the union and the respondent, and that Mr Cicchiello was looking for anything possible to antagonise him. He asserted it was another instance of deliberate victimisation. He disclaimed any knowledge as to how other technicians might interpret the agreement or as to whether some ran two machines with two final mixes or even three machines with three final mixes on their own.[90] He said that the suggestion that he immediately went to the medical centre because of the request was not true and was taken out of context.

133 I doubt that the worker's visit to the medical centre was truly coincidental. I consider his conduct to be another example of his indirect defiance of Mr Cicchiello's instructions. However, the incident again highlights the need for action to have been taken to deal with the disagreement on the number of rheo machines one technician should be required to operate. The failure to do so resulted in increasing levels of conflict and consequent stress to the worker.

Hi-Lo testing instructions

134 A matter incidentally involved in the conflicts which occurred over the last days of the worker's employment arose from his failure to comply with instructions from Mr Cicchiello on testing procedures relating to viscosity of product. On the basis of training previously received, the worker took the view that the instructions given were contrary to standard operating procedures, and that were he to comply with such instructions, notwithstanding that Mr Cicchiello had put them in writing in the log book, he might have allowed stock to pass contrary to specifications which may have led to disciplinary procedures.[91]

135 The instructions given in this regard by Mr Cicchiello were recorded in the laboratory log book on 23 May 2003.[92]

136 It appears that the worker again acted contrary to Mr Cicchiello's instructions with respect to viscosity testing on night shift on 4 June 2003. As a result, Mr Cicchiello sent a note to the worker early on 5 June 2003, the day before he left work. The note appears to have been sent to him privately (that is, not a log book entry for all technicians to see), and referred to the instructions in the log book on 23 May 2003. Those instructions were repeated. The note finished with the comment "please advise if you do not understand these instructions".[93]

137 The worker responded at the commencement of his night shift at 11.00 pm on 5 June 2003 by writing a comment at the bottom of the note to the effect that he did not have time to test viscosity on his own and that the job required "two per run - see bsp not some note". Again, the worker appears to have been taking the position that the "note", being the log book instructions of 23 May 2003, should not be complied with if contrary to some previous standard procedure.

The instruction to "box samples"

138 Another note recorded by Mr Cicchiello on 5 June 2003 led to an extreme reaction from the worker. As a result of certain information reported to him, it was the view of Mr Cicchiello that on his night shift of 4 June 2003 finishing at 7.00 am, 5 June 2003, the worker again did not follow the procedures with respect to the operation of more than one rheo when testing samples as agreed at the meeting with the union on 10 April 2003. He had apparently been informed during the night of 4 June 2003, that there were two final mixes going at once, but that the worker did not call over his then shift partner, Damien Jelicic ("Mr Jelicic"), to assist, but rather rang the Banbury supervisor and told him to box samples and hold them for testing later. Thus he worked one machine only, and as Mr Cicchiello understood it from the information given to him by Mr Jelicic, made no attempt to catch up with the other boxed samples and test them. Further, Mr Cicchiello understood that the worker had declined offers of help from Mr Jelicic, and in response to the suggestion that he work with Mr Jelicic to run two final mixes said "I'm not running around like a bitch." As a result, the boxed samples were left for the following shift to test, a procedure which Mr Cicchiello said should only be adopted as the last resort due to the potential to disrupt factory production.[94]

139 As a result, on 5 June 2003, before the worker attended for night shift, below an entry individually addressed to "Allen" in relation to an offer of overtime, which the worker declined, Mr Cicchiello wrote:-

"All - if you box samples you must make every effort to catch up on your shift."

140 With respect to the events leading up to the messages from Mr Cicchiello dated 5 June 2003, the worker said that for much of the time that he was working the other technician, Mr Jelicic, was not present for various reasons. It is not necessary to go into the detail of the response he would have made to the comments made by Mr Jelicic to Mr Cicchiello which led to the note except to record that he denied them, and said he had to leave boxed samples behind for the next shift to test because he had too much other work to do. The allegations made by Mr Jelicic and anyone else who reported to Mr Cicchiello were not put to the worker to give him an opportunity to respond before the log book note was written by Mr Cicchiello.

141 On attending for the commencement of his shift at 11.00 pm on 5 June 2003, the worker says he was informed by Mr Jelicic that another technician who had commenced on the shift after the worker the day before, namely Mr Botei, had been complaining about the boxed work that the worker had left behind at the completion of his shift on the morning of 5 June 2003. He understood that Mr Botei was upset.

142 He also read the note from Mr Cicchiello addressed to "All" in the log book. As this was written immediately after the worker had not completed the boxed work during the previous shift, he felt it was directed towards him personally and that other technicians would have read it like that. He said it was not an uncommon occurrence for work to be left behind, and that he felt humiliated at being singled out in this manner. He then wrote a response on the same page in the log book while he was in "shock" at the note from Mr Cicchiello which he interpreted as having been directed specifically to him.

143 This response read as follows:-

When one man is by himself with broken down equipment the rest of the factory needing service how can he

Next time you say things like this have some feelings for the poor bloke on his own. Allen W.

JC you were fully aware this may happen and you did nothing to help me. You think by sitting on your hands and doing nothing problems may go away. Do your job and plan for things like this. Look around and see the crap you failed to do the place is ***

144 The worker said that Mr Cicchiello had said to him a few months before to box up samples when he couldn't fix the machines and have them tested. He said that everyone had left samples for someone else to test on occasions and complained that the first time he had left samples to test, not because he didn't want to do them, or because he was on his own even, he had now received a note in the book. He suggested that the note should have acknowledged that he had been working on his own and that there was pressure from the factory, and that something would be done to fix things up. He said that on previous occasions he had been left samples when he came on his shift and caught up with them.[96]

145 He confirmed that he felt he was being singled out, notwithstanding that on other occasions Mr Cicchiello had left notes addressed specifically to him. He suggested that Mr Cicchiello should have called everybody up for a meeting and discussed the workload issues and how it could be resolved in terms of inadequate labour, or people not pulling their weight, and that something should have been done other than the leaving of a note which singled him out. The worker suggested Mr Cicchiello was lying about it not being common for samples to be left behind, and referred to a list of entries he had made drawn from the log book showing that samples had been left behind by various technicians for completion by the next shift on 20 September 2002, 26 September 2002, 2 December 2002 and 4 April 2003, by Mr Cicchiello.[97] He said the work left behind may not only be boxing samples, but also may be other unfinished work.

146 Whilst Mr Cicchiello said it was not a personal attack as it was a note in the log book addressed to "All" technicians, and that he did not want to direct it to anyone in particular, it was written by him because of what had been reported to him by Mr Jelicic.[98] It should have been obvious to him that despite the generic address on the note the worker would take it personally.

147 It was against this background that the worker had an altercation at 6.45am on 6 June 2003 with a fellow laboratory technician, Mr Botei, 15 minutes before the completion of the worker's night shift.

148 Mr Botei had been employed as a laboratory technician by Bridgestone since 1985. At his arrival at work for the morning shift the day before on 5 June 2003, which was at the completion of the worker's shift where boxed samples had been left for the next shift for testing, and which caused Mr Cicchiello to write his note in the log book, he said the worker had told him that during that shift he was busy with final mixes, and showed him two boxes of samples yet to be tested. Mr Botei noted that and during the course of the first part of his shift, he and his day shift partner caught up on the testing of those samples.

149 During a break in Mr Botei's shift, it appears that he came by information from a Banbury supervisor that during the previous night shift, the worker had made no real effort to catch up on boxed samples, and that the worker had made the comment that he did not "do" catch up testing. Mr Botei said that he was "disappointed" on hearing this because such testing could and should have been done, as was required by all technicians, and as he understood the workload on that night shift, the worker could have caught up.

150 On arriving at work at 6.30 am on 6 June 2003, he greeted the worker and said that he told the worker he was not pleased that he had not tested at least one of the boxed samples the night before. At this stage the worker stood up from the table where he had been sitting, about four metres away from Mr Botei and said that he didn't do catch up testing, and referred Mr Botei to an entry in the log book. Mr Botei was directed by the worker to the entry containing the note of Mr Cicchiello addressed to "All" dated 5 June 2003, and to the workers written response. Mr Botei expressed incredulity at what the worker was suggesting and said that the technicians should be assisting one another if they are falling behind in their procedures. He says he "dropped the book back on the table". He then proceeded to question the worker as to why everybody else was doing two or three final mixes by themselves at the one time and why he was not willing or able to do that and complained about the fact that other technicians were doing so much more work than him. The worker kept referring to an agreement and pointing to the log book. Mr Botei continued to make his point about completing final mixes and says that during the conversation the worker said "I am not going to stay here" and left the laboratory.

151 Mr Botei conceded that he was cross with the worker and probably raised his voice but denied shouting at him or using abusive language.

152 The workers account of this confrontation is far more dramatic. He said that when Mr Botei arrived on the morning of 6 June 2003, he started abusing him and calling him a "fucking idiot, why can't you do your fucking work" and repeatedly swearing in such a manner, complaining of his making problems, and that he began banging on the table. The worker attempted to speak to him about what had occurred but said that Mr Botei continued to abuse him and that such abuse continued when Mr Botei's fellow technician Mr Wallace came into the laboratory. The worker said he was afraid that matters might come to physical violence as Mr Botei was becoming "very worked up" and as he was still "banging on the table," he dropped everything and quickly walked out of the laboratory, feeling very frightened and shocked by his behaviour.

153 When giving evidence about the incident the worker became very upset and tearful, and appeared unable to recount what was actually said apart from that he was verbally berated and verbally assaulted by Mr Botei, and that things were thrown on the table. He said that he was "shocked, speechless, frightened and bewildered" and that he ran out of the laboratory and went home. The worker said that Mr Botei was more than cross, he was angry.[99]

154 I do not think either witness gave an account of this altercation which is accurate. I consider that the worker, consistent with his personality, responded to Mr Botei in a defensive and uncooperative manner, and overreacted to the manner and tone of Mr Botei's challenge to him, and exaggerated his recount of the incident. I think it likely that Mr Botei expressed a greater degree of animosity towards the worker than he concedes, and that there may have been some abuse in what he said, although not to the extent suggested by the worker.

155 Part of my reason for drawing this conclusion is the fact that Mr Mullins said after he had been told about the altercation between Mr Botei and the worker by Mr Cicchiello, and before he had an opportunity to go to the laboratory to speak with Mr Botei, Mr Botei rang him at about 10.00 am on 6 June 2003 and expressed concern about what happened with the worker that morning. Mr Mullins described Mr Botei's report as that of a "run in" with the worker, and further stated his understanding to be that something written in the log book by the worker "got right up Meli's nose." Mr Mullins went to the laboratory and spoke to Mr Botei. He said that Mr Botei was "still a little bit worked up and upset" and that he had been with the company 18 years and "would not want to throw that away, that he was tired of doing Mr Word's work for him." He indicated that if Mr Botei's behaviour was found to be inappropriate, he would be counselled about it.[100]

156 I find that Mr Botei was more upset and confrontational with the worker than he was prepared to concede, and that although the worker overreacted his mental state was so fragile that the confrontation aggravated his condition such that he could no longer work. With respect to the causes of his breakdown, apart from asserting that what Mr Cicchiello did to him was one of the things which caused it, he said with respect to the incident with Mr Botei:-

"...Main thing, I think, was when I was assaulted, verbally abused and assaulted from a co-worker. That one was, I guess, what broke the back."[101]

Summary of causative events and application of legal principles

157 Bearing in mind the submissions put to me in relation to the application of the principles arising from Keen referred to above,[102] I approach the question of whether or not the worker in this matter has discharged the onus upon him to prove that the disability did not wholly or predominantly arise from actions to which subsections (i) and (iii) of s 30A(b) apply by consideration of the following matters:-

•

Whether the factors emanating from the employment which caused the disability resulted from stress arising from an inability to cope with the job itself and thus did not arise from any disqualifying actions of the respondent under s 30A(b) of the Act, or at least so outweighed any disqualifying factors such that the disability could not be said to have predominantly arisen from them - if so, the worker will succeed in his claim.

•

If the worker is not able to establish that the actions within the employment were not either actions taken to discipline or counsel him, or administrative actions in connection with his employment, whether or not the disability for which the employment was a substantial cause arose wholly or predominantly from such actions.

•

Even if there are causes other than those encompassed by action to discipline or counsel or from relevant administrative action, such that the disability does not arise wholly from those actions encompassed by the aspects of s 30A relevant to this matter, whether the worker has established that the disability did not arise predominantly from such actions.

•

If the worker is still unable to establish that the disability did not arise wholly or predominantly from action to discipline or counsel him, or from relevant administrative action, whether the disability arose from reasonable action taken in a reasonable manner by the employer to discipline or counsel the worker, or reasonable administrative action taken in a reasonable manner in connection with his employment. If the worker is not able to establish this (should the inquiry get this far), the claim will fail.

158 I now summarise my findings as to the causes of the disability which now incapacitate the worker, and analyse the origin of such causes, and whether, and to what extent, they result from actions to which s 30A of the Act applies.

Workload pressures

159 The first category comprise the workload pressures arising from staff shortages, overtime, machinery breakdowns and the like of the nature which arise during the normal ups and downs of factory production. I have found such did not contribute in any way to the cause of the worker's disability as at 6 June 2003.

Conflicts with co-workers

160 The next category comprises the effects of stressors caused by the worker's conflicts with his co-workers, and in particular the jibes and insults directed towards him as a result of the "poly" incident in July 2002, and the comments made on production sheets and other samples during the period August 2002 to November 2002, and the abuse of former co-worker Mr Murray on 9 October 2002. I have found that the effects of these events had by and large dissipated by early 2003, although I do consider that the contributing effects of the altercation with Mr Murray continued as at June 2003, notwithstanding what Dr Meegan recorded the worker as having said when he saw him in February 2003. Specific reference is made to the incident involving the abuse by Mr Murray in the worker's summary provided with the claim form. The effects of this incident could not be said to result from any disqualifying factors applicable under s 30A(b) of the Act. However, the contribution of that episode of abuse was relatively minor in the scheme of things by 6 June 2003.

"Near miss" incidents in July and September 2002 and respondent's actions

161 The "near miss" incidents in themselves, which occurred in June/July 2002 and September 2002, whilst causing a degree of stress to the worker, are unlikely to have been productive of any long term problems had they been reasonably dealt with by the worker's supervisors . However, I find that the combination of the stressors caused by those incidents, and the worker's reaction to the email of admonishment sent by Mr Cicchiello on the laboratory technicians email network on 12 September 2002, together with the email of Mr Mullins on the following day, were such as to cause a degree of ongoing stress which contributed significantly to the onset of the disability leading to the incapacity of the worker.

162 The response of Mr Cicchiello in his email sent on the morning of 12 September 2002 was intemperate, ill considered and unreasonable, and not in accordance with reasonable conflict management procedures which should have been applied by a person with the experience in supervision that Mr Cicchiello claimed, particularly with respect to a worker suspected of being potentially troublesome. Mr Cicchiello was quite entitled in the circumstances to admonish the worker given the tone of the worker's email and the quite unjustified accusations he made, but the admonishment should not have been delivered in that manner or at that time. Mr Cicchiello should have consulted the worker first to fully establish the facts which led to his concerns, particularly given that a further problem with the mill was diagnosed after the incident of 11 September 2002. There should have been a face to face meeting, or at least confidential communications from then on, not inappropriate exchanges by way of the technicians email system available for all to see. The fact that the worker had initially used this email system to make his inflammatory accusation did not justify a response through the same channels or in the same vein.

163 Mr Cicchiello's email response of 12 September 2002 inevitably led to a further inappropriate response from the worker which only served to take the issue further and bring others into the dispute when this need not have occurred. Mr Cicchiello's action in sending the email did not involve counselling or disciplining of the worker. Nor was it administrative action with respect to the worker's employment. Even if his actions fell into either category, the action when viewed objectively was not reasonable action and was not taken in a reasonable manner.

164 I have referred to the email sent by Mr Mullins on 13 September 2002 to various parties including other technicians advising that he would set up a meeting with the worker on 16 September 2002 to discuss "where he had not followed proper procedure, and also his intention not to follow it in the future".[103] Again it is hardly appropriate to have communicated such an intention in this manner, even if the email was only sent to the recipients of the worker's last email. The email of Mr Mullins discloses that a conclusion had already been reached that the worker had failed to follow proper procedure, but there is no evidence that the matters which led to this conclusion were put to the worker, or that he had any opportunity to respond before Mr Mullins determined there should be a meeting about such a failure.

165 Even if there was evidence which suggested that the problems with the mill on 11 and 12 September 2002 or on other dates before then were caused by the worker failing to follow proper procedure, the manner in which the incident was dealt with by Mr Mullins was far from satisfactory in terms of reasonable processes to be adopted in circumstances where an employer believes an employee to have acted inappropriately or contrary to procedure. Before any allegation was put to the worker, and before he had a chance to respond, a conclusion that there had been a failure to follow proper procedure was reached and broadcast to fellow workers. I do not consider the action of Mr Mullins in sending the email to have been administrative action taken with respect to the worker's employment, but if it was, it was not reasonable action taken in a reasonable manner.

166 Further, if the action taken comprising the sending of the email and the subsequent meeting of 16 September 2002 can be said to have been action taken to counsel the worker, it was not reasonable action, and nor was it taken in a reasonable manner.

167 In reaching these conclusions I have regard to the fact that the issue of reasonableness in these circumstances is a question of fact based upon the facts as they were known or ought to have been known at the relevant times without the benefit of hindsight, and further to the fact that the issue of reasonableness is an objective test to be applied considering all the circumstances.[104]

168 I am mindful of the fact that before 12 September 2002 there had not been a particular dispute between the worker and his supervisors, and that at this stage Mr Cicchiello still considered the worker to have been performing satisfactorily.[105] However, both Mr Cicchiello and Mr Mullins indicated in their evidence that they understood the worker had a history of being in conflict with either supervisors or co-workers, and both believed he was ill disposed to Mr Cicchiello because he did not obtain the position of supervisor. It is clear that before this event Mr Mullins had formed an adverse view of the worker.[106]

169 It may seem that too much emphasis is being placed upon the effects of the sending of these two emails and the subsequent meeting on 16 September 2002. However, as observed above, there is very clear evidence that these events had a significant adverse effect on the worker.[107] He appears to have been a man with a propensity to be highly sensitive to actual or perceived criticism of his conduct at work or his work performance. As I have noted above, the actions of the two supervisors concerned were actions which contributed to the causes of the disability and were not disqualifying factors under either of subsections (i) or (iii) of s 30A(b) of the Act. In the alternative, to the extent that they were actions which come within the relevant provisions of s 30A(b), the actions were not either reasonable actions taken in a reasonable manner to counsel the worker, or reasonable administrative action taken in a reasonable manner in connection with the worker's employment.

170 In forming this view I have regard to the endorsement by the Full Tribunal in Mitsubishi Motors Australia Ltd v Lupul[108] ("Lupul") of the statement of the learned Deputy President at first instance in that matter, who said:-

"113 It is obvious that what is reasonable must be seen in the context of all the circumstances. This includes the financial imperatives facing MMAL, the need to shed employees - the need to restructure - the time constraints imposed upon Adelaide management by Japan - the fact that the plant had to be kept operational while the total restructure was put in place.

114 Reasonable must also be considered in the context of an individual history, his age, personality and legitimate expectations. In other words in deciding whether an act is prima face (sic) reasonable, the manner of how that act impacts upon an individual employee must be examined. It is not the collective 'worker' who is disabled - it is the individual who claims compensation."

The observation of the Full Tribunal was as follows:-

"In any event, we think the learned Deputy President's description of how reasonable action in s 30A is to be assessed, in pars 113 and 114 of his decision was fair and accurate in law, and that in particular he was right in indicating that reasonable action is to be considered having regard to the impact of the employer's actions on the particular individual concerned, and not on some abstract 'ordinary' worker. The actions of the employer are to be measured against an objective reasonable standard, but the legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be...(case reference omitted)"

Informal counselling and other events September - December 2002

171 I consider that the various actions taken after 12 September 2002 until 19 December 2002 by the respondent which involved what might be described as "informal counselling" of the worker, or the giving to the worker of directions or instructions with respect to compliance with the respondent's procedures, were actions which did aggravate the stress the worker had been suffering as from 12 September 2002.

172 The various actions of Mr Cicchiello were not indicative of any singling out or harassment or victimisation of the worker as alleged.[109] The worker's conduct during this period involved the rather disingenuous tactic of resorting to reliance upon apparently contradictory instructions or procedures emanating from the time before Mr Cicchiello became supervisor. I consider the worker was being deliberately difficult, and adopted a "work to rule" approach involving passive resistance to any variation on former procedures.

173 I find that the actions of Mr Cicchiello during this period were actions taken by the respondent which fell within either subsection (i) or (iii) of s 30A(b) of the Act. I consider such actions, in aggravating the stress suffered by the worker from 12 September 2002, continued to contribute to the worker's condition, so as to be one of the causative factors of his disability, with one exception. Any such resultant stress as at 6 June 2003 was a minor contributing feature to the disability.

Rheo machine incident and counselling meeting December 2002

174 The one exception in terms of the ongoing minor stressful effect of events from this period relates to the formal counselling procedures which were taken against the worker after his failure to follow instructions not to use the rheo machine on 13 November 2002. As evidenced by the taking of some sick leave for the first time towards the end of November 2002, this event was causing some considerable stress to the worker. I have no doubt that all steps taken by the respondent in relation to that process were reasonable actions taken in a reasonable manner with respect to the disciplining or counselling of the worker. However, fortuitously from the worker's point of view, the counselling process appears to have been short circuited in such a way that the worker felt that his conduct had been found to be appropriate, and as such he felt completely vindicated. Whatever the merits of that attitude with respect to the outcome of the counselling process, I consider that it had the effect of removing those events as an ongoing stressor of any nature.

Assessment of events of April to June 2003

175 The events which occurred between 10 April 2003 and 6 June 2003 were the major contributors to the worker's condition. It is my view that they should be viewed from a broad perspective in the first instance. As noted in the reasons set out above, the main source of conflict emanated from the differing interpretations held by the worker and his supervisors, and perhaps by his co-workers as well, as to the implementation of the agreement reached with the union as to the number of rheo machines technicians could be expected to operate without assistance. It may be that the view taken by the worker was completely without merit, although one cannot draw this conclusion on the face of the document which purported to record the agreement. In assuming this to be the case however, I consider that it was a major failing of the respondent's supervisors not to address this conflict over the manner in which the agreement should be implemented. The continuing difference as to the effect of the agreement was what underpinned much of the ongoing disputation between the parties.

176 I consider the negotiation of an agreement concerning workload with a view to implementation of the same in the workplace for the benefit of management and employees was reasonable administrative action. However, I cannot accept that such action was taken in a reasonable manner in circumstances where the worker vehemently maintained and persisted in acting upon an interpretation of the agreement which appeared to be at odds with the understanding of the respondent. Some action should have been taken in my view, to seek a resolution with respect to this ongoing difference. The failure of the respondent to take action to defuse the ongoing tension between the worker and the respondent in relation to the implementation of the agreement of 10 April 2003 was a failure by the respondent to take action of a nature which could give it the benefit of the disqualifying provisions of s 30A(b) of the Act.

177 Both Mr Cicchiello and his immediate superior, Mr Mullins, found the worker very difficult to deal with in relation to what they saw as a continuing deterioration in the worker's level of performance. I consider that the unsuccessful and frustrating attempt in December 2002 to engage in a formal counselling process with respect to a failure by the worker to follow instructions caused both Mr Cicchiello and Mr Mullins to be reluctant to embark on a similar process with respect to the conflicts over the period from April to June 2003. This is regrettable, as it allowed the stress resulting from continuing confrontations to spiral out of control, and to culminate in the altercation with Mr Botei.

178 Moving from the broad perspective to examine the particular incidents does not greatly avail the respondent in my view. The approach taken by Mr Cicchiello to the problems he understood arose from the worker's failure to test boxed samples on 4 June 2003, given the history of conflict between he and the worker, was likely to inevitably lead to an overreaction by the worker. Mr Cicchiello knew that there was an ongoing dispute between he and the worker as to what was agreed by the respondent and the union with respect to the number of persons required to run the rheometers. The worker had on two occasions prior to 4 June 2003, to Mr Cicchiello's knowledge, reacted in an extreme way to the suggestion that he operate two manual rheometers at the one time. When he wrote the memo in the log book on 5 June 2003 addressed to "All", Mr Cicchiello was acting upon information provided to him by Mr Jelicic as to the worker's conduct on the previous shift which suggested that the worker was not complying with the policy, and that he had made no reasonable effort to catch up with the boxed work. Mr Cicchiello did not seek an explanation from the worker as to what, if any, problem had caused the build up of work before writing his note in the log book. Although the note was addressed to "All", it was clear that it was written because of what had been reported to Mr Cicchiello about the worker's behaviour on the shift before.

179 The intimate nature of the laboratory environment was such that word would have quickly spread as to the issues arising from the worker's approach to the staffing policy on the operation of rheometers. It was not unreasonable for the worker to feel that the note was directed to him and that other laboratory personnel would understand that to be so.

180 It must be remembered also that on the same day, Mr Cicchiello had prepared a separate and apparently private note to the worker in relation to his not following the policy as previously directed on 23 May 2003 in relation to "hi-lo" testing. It would have been preferable to direct any comment in relation to catching up with testing of boxed samples by providing an individually addressed note to the worker, or by meeting with him to put the allegations of Jelicic to him for his response, or better still, by trying to get to the nub of the problems the worker was so clearly having with his work performance.

181 There was every reason for management to take action with respect to the worker's performance, and as observed above, such action should have been taken well before 5 June 2003. There was clearly a workload issue which had to be addressed. The application of the April agreement should have been clarified so that it was understood and acted upon in the same manner by all technicians.

182 Thus I find that the action taken by Mr Cicchiello to communicate to "All" as he did in the log book on 5 June 2003 was not reasonable action taken in a reasonable manner. It was inevitable in light of the personality of the worker and the history of his conduct that he would consider that he was being singled out and unfairly victimised, and that the note was likely to prompt an extreme reaction from him. The comments referred to above in the matter of Lupul[110] are again apposite. As with the incident of 11 and 12 September 2002, there should have been a meeting at which the allegations of wrongdoing were put to the worker so that he could respond, and an attempt should have been made to sort the matter out other than by means of the log book note.

183 The worker's response in the log book on 5 June 2003 was intemperate and insubordinate and would quite reasonably have caused the respondent to consider disciplinary action for abuse of the supervisor. The worker conceded that it was an inappropriate reaction. His evidence was that he felt overwhelmed with the requirement to do all the work coming in on his own. Nobody was wanting to work overtime, there were demands with respect to testing which he could not meet and that in the circumstances he "was losing the plot", "losing my mind basically" and that the note itself showed that the person who wrote it "has lost it". He said "I just couldn't handle anymore and this is what I wrote."[111] I accept his evidence as to how he felt at the time.

184 It will be apparent from the above that I do not accept the submission put by counsel for the worker that the only incident of any real relevance is that which took place on the last morning, being the conflict with Mr Botei. Whilst I accept that such incident was an important contributing factor, and that it is not a disqualifying event within the terms of s 30A(b) of the Act, it is not appropriate to consider such an event in isolation. The worker's response to that altercation must be considered in light of events which preceded it. I do not consider that his disability can only be attributed to this last contributing event and in this regard, would take the same approach as noted by Deputy President Judge Parson in Yeomans v Walker Australia Pty Ltd.[112]

185 Counsel for the respondent, Mr Cole, submitted that the attention should be focused on the two events which took place shortly before the altercation with Mr Botei. The first of these concerned the reminder note written directly by Mr Cicchiello to the worker complaining of his failure to follow the log book instruction given on 23 May 2003 with respect to the procedure for checking viscosity. At some stage during the night shift commencing 11 pm on 5 June 2003, the worker received that note, and wrote a response which, consistent with much of his behaviour, indicated a resistance to accept instructions because they appeared to be contrary to some pre-existing standard procedures which suggested an alternative procedure. I accept that the issue of this reminder note by Mr Cicchiello in the form it took, viewed in isolation, was a reasonable administrative action taken in a reasonable manner, and I do take into account that the receipt of the instruction must have played a part in aggravating the increasingly agitated state of the worker after he commenced his shift on 5 June 2003.

186 The second event relied on by Mr Cole was the provision in the log book of the instruction addressed to "All", in relation to the boxing of samples. There is no doubt that the worker reacted to this instruction in an extreme way, and I consider that, in the circumstances, it was far more significant in the scheme of things than the reminder concerning instructions with respect to checking viscosity.

187 For reasons I have set out however, I do not consider that the action of Mr Cicchiello in recording the instruction in the log book in this way was a reasonable administrative action taken in a reasonable manner. In any event, I consider the greater failing was that of not addressing the conflict over compliance with the union agreement over the period of almost two months up to 6 June 2003.

188 Accordingly, it is my conclusion that the main causes of the worker's disability were the stresses flowing from the events of 11 and 12 September 2002, the failure to adequately address the disputation arising out of the union workload agreement of 10 April 2003, and the final incident being the altercation with Mr Botei. None of these matters are causes of the disability which come within s 30A(b) of the Act with one qualification. If one looks behind the ongoing failure to address the continuing disputation arising out of the workload agreement, one can see that the reminder from Mr Cicchiello to the worker that he follow instructions on "hi/lo" testing, and the log book note addressed to "All", were important factors. I have found the first action falls within s 30A(b)(iii), but the second does not.

189 As noted above, the reasonable actions taken to discipline or counsel the worker or instruct him in the latter part of 2002 (which had a minor ongoing contribution) would also attract the protection of s 30A(b)(i) or (iii) of the Act. However, even when one combines the effect of these actions with those of the reminder note of 5 June 2003, they are far outweighed in the circumstances by the stressors causative of the worker's disability which do not come within the disqualifying provisions of s 30A(b) of the Act.

190 In light of my above analysis, I conclude that the worker has proven that his disability was not wholly or predominantly caused by actions which come within the terms of subsections (i) and (iii) of s 30A(b) of the Act.

191 Accordingly, I set aside the determination of the respondent dated 4 July 2003. I will hear the parties as to what further orders should be made in light of this decision.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

[2] In the notice of injury and claim for compensation the worker described his family name as

"Rukavina" and his "other names" as "Word Allen", on some other forms the family name is "Word

Rukavina", and on occasions, work related documentation refers to him as Allen Word, or Mr Word.

[7] [1998] SASC 7056; (1998) 71 SASR 42

[8] As to which see the discussion of Gilchrist DPJ on this issue in Ashby v State of South Australia

[2003] SAWCT 61 at 40-48

[9] See WorkCover Corporation of South Australia v Summers (1995) 65 SASR 243 per Doyle CJ at 248

[12] Refer TB 258 par 11, 260/19,261/24, 261/24, 261/25, 262/27, 262/29, 263/32, 263/33, 264/39,

[13] Ms Sharman at TB 280-281, Tr 202-204, worker at Tr 170-174

[15] Shift hours were 7 am to 3 pm (day shift), 3 pm to 11 pm (afternoon shift) and 11 pm to 7 am (night

[19] TB 195 and also see Mr Mullins at TB 260 par 19

[22] TB 281, Tr 205-207

[27] TB 211 par 11 - Mr Cicchiello must be correct in this regard as he did not start working with the

[41] TB 223 Appendix 3 to Cicchiello statement

[48] Tr 244 (Mr Cicchiello), Tr 254 (Mr Mullins)

[51] Failure admitted by the worker - Tr 143-144

[62] TB 224/Appendix 4 Mr Cicchiello's statement

[95] This was a reference to the agreement of 10 April 2003

[104] Price v The Corporation (Adelaide Casino) A. 45/1994 at page 4

[105] According to his note recorded at the informal counselling on 11 October 2002 - TB 222-223

[106] TB 259/19, 262/28, 262/29, 263/32, 263/33

[108] [2004] SAWCT 130 at pars 22 and 26

[109] except perhaps for the inappropriate riposte to the worker's comment that "I want to see you drown"

[112] [2001] SAWCT 40 at par 44 - I note this comment was not the basis upon which the decision was