State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2024] QIRC 53

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Avis v Workcover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95

Gilmour v Workers' Compensation Regulator [2019] QIRC 022

Haack v Workers' Compensation Regulator [2017] QIRC 115

Ivey v Workcover Queensland [1999] QIC 65; (1999) 162 QGIG 392

Misevski v Q-COMP [2009] ICQ 2

RACQ Operations Pty Ltd v Q-Comp [2003] ICQ 49; (2003) 174 QGIG 824.

Read v Workers' Compensation Regulator [2017] QIRC 072

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

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

Versace v Braun [2005] QIC 18; (2005) QGIG 315

WorkCover Queensland v Curragh Mining Pty Ltd [2002] ICQ 59; (2003) 172 QGIG 6

Wyllie v Q-Comp [2009] ICQ 9; (2009) 190 QGIG 233

Mr C. J. Murdoch KC of Counsel instructed by Ms L. Brown of Crown Law for the Appellant.

Mr P. Rashleigh of Counsel directly instructed by Ms J. Webb of the Respondent.

• [1] Ms Alison Brunker is employed by the State of Queensland through the Department of Agriculture and Fisheries ('the Department'). Ms Brunker is employed in the Department on a permanent basis and, at all times material to this appeal, was based in Mareeba.[1] Ms Brunker was employed in the position of Manager, Strategic Projects and Planning in Rural Economic Development, North ('RED North'), classification AO8.[2] However, over time the position was referred to as Regional Manager.[3] Ms Brunker managed a team of four employees. Part of Ms Brunker's role involved managing the Department's response for the recovery of the agricultural industry in North Queensland following natural disasters and other emergencies ('disaster management' or 'disaster response').[4]

• [2] On 5 April 2019, Ms Brunker, pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), made an application for workers' compensation in respect of a psychiatric/psychological injury.

• [3] Ultimately, by a review decision of the Workers' Compensation Regulator dated 22 February 2021 ('the review decision'), Ms Brunker's application for compensation was accepted. The Regulator relevantly determined that Ms Brunker's work-related injury arose out of, or in the course of, management action that was not reasonable and was not taken in a reasonable way. By notice of appeal filed on 22 March 2021, the Department appealed against the review decision.

• [4] The appeal primarily centres around the application of s 32(5) of the Act. That section relevantly provides:

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

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

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

• [5] The three stressors said to have contributed to Ms Brunker's injury were:

• the requirement she perform disaster management duties as well as those of her Regional Manager's position ('the second stressor'); and

• her perception of a lack of management support ('the third stressor').

• [6] The substantive dispute between the parties is about the application of s 32(5)(a) of the Act. The Department's case is that Ms Brunker's injury is withdrawn from being a compensable injury because:

• Ms Brunker's workload, which was inextricably linked to management action, was reasonable;[5]

• dealing with disaster responses while undertaking the core duties of her Regional Manager's role was inextricably linked to management action, and that management action was reasonable because Ms Brunker was not required to maintain her Regional Manager's role during disaster responses;[6] and

• the issue about the level of support provided by management to Ms Brunker clearly involved management action, the level of support provided to her by management was, in reality, reasonable, and her perception of a lack of support by management was flawed.[7]

• no management action was involved in respect of Ms Brunker's intense workload and her dealing with disaster responses while maintaining her core Regional Manager's role, because those stressors were part of her role,[8] and even though the management failure to temporarily backfill a position in her team - that of Mr Peter Holden, Industry Development Officer, RED North, classification PO4[9] - was management action, that management action was not causative of her injury;[10] and

• the unreasonable lack of support from Ms Brunker's management, which included the failure to backfill Mr Holden's role, was not her perception but was the reality, such that her injury did not arise out of reasonable management action taken in a reasonable way in connection with her employment.[11]

• [8] Much of the evidence cut across the three stressors. Further, the evidence was not straightforward about whether there was any actual management action taken in connection with Ms Brunker's employment so as to enliven s 32(5)(a) of the Act.

• [9] Having regard to the parties' submissions, the questions for my determination, in respect of the application of s 32(5)(a) of the Act, are:

• did the fact of Ms Brunker's workload involve management action and, if so, was it reasonable and undertaken in a reasonable way?

• was management action involved, that was reasonable and undertaken in a reasonable way, in respect of the issue of Ms Brunker's disaster response work and the performance of the duties of her Regional Manager position? and

• was there, in reality, a lack of support from Ms Brunker's management and, if so, was the lack of support reasonable and undertaken in a reasonable way?

• [10] A further issue is whether Ms Brunker's injury arose out of, or in the course of, her expectation or perception of reasonable management action being taken against her within the meaning of s 32(5)(b) of the Act.

• [11] For the reasons that follow, I find that:

• Ms Brunker's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment; and

• Ms Brunker's injury did not arise out of, or in the course of, her expectation or perception of reasonable management action being taken against her.

• Ms Brunker was a worker within the meaning of s 11 of the Act;[12]

• Ms Brunker sustained a personal injury in the nature of a psychiatric/psychological disorder,[13] namely, an Adjustment Disorder with Anxiety and Depression;[14]

• Ms Brunker's injury arose out of, or in the course of, her employment by the Department;[15] and

• Ms Brunker's employment was the major significant contributing factor to her injury.[16]

• [13] The Department accepted that Ms Brunker's injury had a causal connection with her workload.[17]

• [14] In my view, the evidence supports this. Ms Brunker, as part of her application for compensation, was referred by WorkCover Queensland for an independent medical examination by Dr Janet Bayley, Consultant Psychiatrist.

• [15] In her subsequent report, Dr Bayley relevantly opined:

1. Do you consider employment to be a significant contributing factor to the injury? if so, please detail all events (arising from employment or otherwise) that you consider caused the psychological/psychiatric injury.

I consider employment to be a significant contributing factor to the injury. I believe Ms Brunker's intense workload, perception of lack of support from management, and dealing with the various disaster responses whilst being required to maintain her core Regional Manager role, caused the psychiatric injury. This was exacerbated by inadequate resources with regards staffing within her department to allow her to engage in her various roles in a satisfactory manner.[18]

• [16] It is also accepted by the parties that:

• an appeal of this type is a hearing de novo[19] of the issue determined by the review decision,[20] namely, whether Ms Brunker has suffered an injury within the meaning of the Act; and

• the onus is on the Department to prove, on the balance of probabilities, that Ms Brunker did not suffer an injury within the meaning of the Act.[21]

• [17] To understand my reasons, it is necessary to set out the relevant background.

• a primary activity of RED North was to provide responses to emergencies, such as natural disasters and biosecurity issues, so that once the emergency was over, it deployed staff to co-ordinate various forms of assistance to the agricultural industry in North Queensland for its recovery;[22]

• in respect of such responses and recovery, RED North developed Regional Disaster Response Plans, including the Regional Disaster Response Plan North Region, dated December 2018, which was for the 2018-2019 disaster season ('the 2018 Disaster Plan');[23] and

• RED North also had the responsibility for implementing a State government initiative called the One Stop Service ('OSS'), the purpose of which was to streamline private sector agricultural planning and development processes within the Department.[24]

The relevant reporting relationships for RED North

• [19] Ms Brunker had four persons who reported to her, namely:

• Mr Peter Elliot, Senior Project Officer, RED North, classification AO7, who was based in Townsville;[25]

• Mr Holden, who was based in Mareeba;[26]

• Ms Angelika Ziehrl, Project Leader, OSS, classification AO7, who was based in Cairns;[27] and

• Ms Mindi Tonak, Project Support Officer, OSS, classification AO3, who was based in Cairns.[28]

• [20] Ms Brunker reported to Mr Adam West, Regional Director, RED North, who was based in Townsville.[29]

• [21] Mr West reported to Mr Elton Miller, Executive Director, who was based in Brisbane.[30]

Ms Brunker's duties and responsibilities in the Regional Manager role

• [22] Ms Brunker had been employed in the position of Regional Manager, within the Department, since 2011.[31]

• [23] From the evidence, there was no dispute that, in broad terms, Ms Brunker's responsibilities in the Regional Manager role, included:

• contributing to agricultural planning and development in the North region;[32]

• representing the Department and providing relevant advocacy for industry development for Far North Queensland;[33]

• planning, co-ordinating and leading RED North's disaster management activities including developing, reviewing and implementing the Regional Disaster Response Plans;[34]

• supervising the four person team that reported to her.[36]

• [24] In evidence are documents entitled 'Performance and Development Agreement' ('PDA'). They were Ms Brunker's PDA for 2016-2017 ('the 2016 PDA')[37] and her PDA for 2017-2018 ('the 2017 PDA').[38] These documents, prepared by Ms Brunker and then reviewed by Mr West,[39] set out, amongst other matters, Ms Brunker's work performance plan and her work performance objectives.

• [25] The Regulator did not dispute that Ms Brunker's role and activities were determined by the PDAs and that the PDAs more fully encapsulated what Ms Brunker was required to do in her Regional Manager role.[40]

• [26] In the 2017 PDA, the work performance objectives listed by Ms Brunker were:

• to provide Departmental representation and advocacy at relevant regional governance frameworks (internal and external) and multi-stakeholder forums;

• to further expand the OSS to facilitate private sector initiatives for developing appropriate land and water resources in North Queensland on a sustainable basis, through the various approval and development processes of government;

• to lead emergency management coordination and associated activities related to disasters, and to participate in drought coordination;

• to provide input into statutory and non-statutory land use planning processes and policy development and to ensure the agriculture sector has ongoing access to appropriately located resources underpinning industry development in respect of land, water and energy;

• to actively contribute to RED North business planning and to ensure all services are aligned to agreed State government and Departmental priorities and activity captured through allied performance evaluation and reporting;

• to provide Regional intelligence to head office and to the Minister and Director-General as required;

• to assist with regional visitation processes and correspondence;

• to advise and support regional workforce development, skilling and training initiatives;

• to collaborate with clients and stakeholders regarding agriculture strategy for place based areas; and

• to represent the Department and consult with industry and associated supply chains relating to potential export markets and broader regional and place based opportunities and inhibitors.[41]

• [27] In respect of each work performance objective, Ms Brunker also set out the associated performance standards, referred to as 'Deliverables'.[42]

• [28] In respect of the work performance objective of leading emergency management coordination and associated activities related to disasters, and participation in drought coordination,[43] the 'Deliverables' were:

Support to site coordinators regarding BCPs[44] and monitoring all site BCPs completed annually (Oct)

Regional Coordination of DAF response to disaster events, including confirmation of staffing and training opportunities

Provision of support/assistance to DAF business units in disaster related matters/situations

Departmental representation on District Disaster Management Groups (DDMGs) and DDMG subgroups

Collaboration with Head Office re various disaster management policies and initiatives (Ag Regions MApp)

DAF Representation at Emergency Management Forums/workshops (e.g. IGEM Forums)

Development of District Agriculture Industry Recovery Plans (5)

Participation on North/North West drought Response Network

Communication with councils and/or peak bodies regarding drought initiatives and concerns/issues

Collaborate/provide support as required, to Bio-security response and program teams relating to pest and disease outbreaks Preparation of Regional DMP, DDMG.[45]

Ms Brunker's role as Regional Co-ordinator for disaster management and disaster response

• [29] The 2018 Disaster Plan was compiled by Ms Brunker.[46] In cross-examination, Ms Brunker stated that while the 2018 Disaster Plan was ultimately approved by Mr West, it was her plan.[47] Indeed, Ms Brunker's evidence was that she had compiled the previous plans since 2011 or 2012,[48] and that the process involved updating the previous plans to ensure that lessons learned from previous disasters would be contained in the plans as updated.[49]

• [30] The 2018 Disaster Plan relevantly provided:

This plan has been developed, as a complement to the DAF Disaster Management Plan, to assist regional staff to respond effectively to a disaster event that has significantly impacted on the department's service delivery and/or agricultural industries within the region.[50]

• [31] Fundamentally, the 2018 Disaster Plan provided for the establishment of a Regional Disaster Response Team ('RDRT') to manage the disaster response of the Region. In the 2018 Disaster Plan, the RDRT was described as being the Department's 'Command and Control' at the regional level, being responsible for implementing the disaster response and recovery phases to assist industries and communities within the Department's areas of responsibility and internal Business Continuity Plans. [51]

• [32] In this regard, the 2018 Disaster Plan provided:

The Regional Controller is appointed by the Regional Director to coordinate and manage DAF's operational response and recovery activities within the region. In consultation with the Regional Director, the Regional Controller assesses the need for RDRT[52] activation dependent on the event.

The Regional Controller is responsible for the management of all activities of the RDRT who are responding to the disaster event.[53]

• [33] Ms Brunker was listed as the Regional Controller in the 2018 Disaster Plan.[54] Ms Brunker's evidence was that, by 2018, she was very experienced in performing the Regional Controller's role.[55] The 2018 Disaster Plan listed Mr Phil Hales - a Manager, whose position was classified AO8 and who was based in Cairns[56] - as Ms Brunker's backup as Regional Controller. The evidence also was that others who could perform the Regional Controller role were Mr Stephen Smith and Mr Gareth Jones.[57]

• [34] Ms Brunker's evidence was that the disaster season in North Queensland, to the extent it impacted upon her position, ran from November until April, but particularly during the period December to April.[58]

The first stressor - did the fact of Ms Brunker's workload involve management action and, if so, was it reasonable and undertaken in a reasonable way?

• [35] The Department submitted that an employee's workload is directly informed by decisions made by the Department in relation to the allocation of work to staff and, therefore, an employee's workload is inextricably linked to management action as it is the Department's managers who are responsible for allocating and overseeing staff workloads.[59]

• [36] The Regulator submitted that no management action was involved in respect of Ms Brunker's workload because the cause of her injury was the role itself.[60]

• [37] From the evidence, my view is that in assessing this stressor (and the third stressor, namely, the issue of the perception of the lack of management support for Ms Brunker), the matter of the decision to not backfill Mr Holden's position is also relevant.

• [38] I am not persuaded by the Department's submissions that, in the circumstances of the present case, Ms Brunker's workload, whether described as intense or not, involved the exercise of management action in connection with her employment within the meaning of s 32(5)(a) of the Act.

• [40] First, it seems to me that, other than the issue concerning the non-backfilling of Mr Holden's position (which I deal with below), no management action concerning Ms Brunker's workload is involved.

• [41] It is the case that the Industrial Court of Queensland has taken a wide view of what is '... management action'. This includes the introduction of a behavioural management plan for students that is administered by a school,[61] the investigation of a school principal, that principal's removal from the school and that principal's demotion,[62] and the restructuring of businesses.[63]

• [42] However, the exclusory action in s 32(5) of the Act was intended by Parliament to relate to specific management action directed to the worker's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in employment, such that the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the worker's employment.[64]

• [43] Further, as to what is meant by the phrase '... management action' in s 32(5) of the Act, in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator ('DAF'),[65] I relevantly stated:[66]

What is 'management action' within the meaning of s 32(5) of the Act?

• [32] In Canadian General Electric Company Limited v The Ontario Labour Relations Board, the Supreme Court of Ontario was required to determine whether the Ontario Labour Relations Board acted beyond its jurisdiction in issuing certificates that a trade union was a bargaining agent for particular employees of the applicant company_._ One of the questions was whether or not the employees concerned exercised '... managerial functions ...' within the meaning of the relevant statute. That question arose because the Board had no jurisdiction to issue the certificates if the employees met that statutory description.

• [33] In this regard, Wells J relevantly held:

It therefore becomes necessary for me to determine as best I can what the Legislature meant when it exempted employees exercising managerial functions and employees employed in a confidential capacity in matters relating to labour relations from the Board's powers as to employees. It is obvious, I think, that "managerial" means something pertaining to or characteristic of a manager and it is equally obvious that the word "manager" means one who manages. In Murray's New English Dictionary the word "function" is defined as the action of performing, or as the special kind of activity proper to anything, the mode of action by which it fulfils its purpose. The word "manage" is said to be equivalent to conducting or carrying on a business or undertaking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking charge of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious, I think, that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of and planning for any particular enterprise.

• [34] In 2007, Vice President Linnane in O'Brien AND Q-COMP cited, with approval, this part of the decision of Wells J in determining whether particular action met the description of 'management action' within the meaning of s 32(5) of the Act. Vice President Linnane's decision has been cited with approval by Deputy President O'Connor.

• [35] In my view, the decision of Wells J in Canadian General Electric is of some assistance in construing the phrase 'management action' in s 32(5) of the Act.

• [36] The verb 'manage' relevantly means '... to handle, direct, govern, or control in action or use' and the noun 'management' relevantly means '... the act or manner of managing; handling, direction, or control.'

[37] Section 32 of the Act provides the following examples of actions that may be reasonable management actions taken in a reasonable way, namely:

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

• a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment

• [38] An example in an Act of the operation of a provision of the Act is part of the Act. Section 14D of the Acts Interpretation Act 1954 provides that if an Act includes an example of the operation of the provision:

• the example does not limit, but may extend, the meaning of the provision; and

• the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.

• [39] The examples contained in s 32 of the Act are an aid to its interpretation and having regard to the examples, the phrase 'management action' means action taken by a manager, in relation to a worker, in managing, handling, directing or controlling the worker.

• [44] It must be remembered that at all times material to this appeal, Ms Brunker:

• was employed in the position (styled) Regional Manager, classification AO8, being a senior management position in RED North located in Mareeba; [67]

• Ms Brunker reported directly to Mr West whose position was located in Townsville;[68] and

• Mr West reported directly to Mr Miller, the Executive Director, who was located in Brisbane.[69]

• as an AO8 Manager, she had to prioritise her work[70] and that of the staff who reported to her;[71]

• she would delegate tasks, she was to perform, to her staff;[72] and

• the hours she worked, during disaster responses, depended upon what she was required to do.[73]

• [46] The Department submitted the evidence disclosed that:

• Ms Brunker was an experienced senior manager and she was reasonably expected to prioritise (her work) and to delegate tasks, and to seek support from Mr West and others if she needed to manage her workload, being something repeatedly emphasised to her by Mr West;[74]

• outside of a response in respect of a disaster, Ms Brunker was not expected to work significant additional hours above her standard working hours;[75]

• working in a disaster management response necessarily contemplates that there will be periods of work in excess of 7.25 hours per day for brief periods of time, which is consistent with the expectations of the remuneration level of a AO8 Manager; and it was always open to Ms Brunker to seek relief or to take a break during a disaster response, as assistance was available;[76]and

• Ms Brunker would have been aware of the ability to call additional staff and the importance of taking a break in a disaster response.[77]

(b) the workload expected of Ms Brunker by her manager (management action) was not "intense". That she may have felt it was not to the point.[78]

• arising out of Ms Brunker's comment in the 2016 PDA that she had accrued excessive hours,[79] Mr West stated:

Right. And was a strategy discussed between you and her?---Yes, this was a discussion - well, yes.

And what was the strategy that was discussed?---I guess this was an ongoing conversation with Alison that cut to the heart of her underlying work - commitment to work ethos.[80]

• Mr West had oral and written communications with Ms Brunker about delegating and prioritising her work, seeking assistance and taking leave;[81]

• in an email to Ms Brunker dated 1 November 2018, Mr West stated:

[Y]ou will need to prioritise and manage your time appropriately to accommodate DM[82] responsibilities within normal/acceptable work parameters and boundaries; [83]

• Mr West stated that other staff could have performed Ms Brunker's role of Regional Controller for the purposes of the 2018 Disaster Plan;[84]

• in relation to advice Mr West had received that, in relation to the 2018-2019 Disaster season, Ms Brunker was at times feeling overwhelmed, had '... a full agenda' and was struggling,[85] he (Mr West) stated that he left Ms Brunker '... as an eminently capable and experienced manager to manage.';[86] and

• Mr West stated to Ms Brunker, in an email dated 12 February 2019, after her second involvement in the 2018-2019 disaster response:

'Up to you if you want to take or need additional leave to assist family.'[87]

• [49] The expectations Mr West had of Ms Brunker:

• that she would not work significant additional hours above her standard working hours; and

• that it was open to her to seek relief or take a break,

do not point to any management action being taken by Mr West.

• [50] The evidence referred to above tends to prove that these matters concern discretions that Mr West expected Ms Brunker - as a Regional Manager, classification AO8, located in Mareeba - may exercise. The evidence does not rise to the level where I am satisfied the discussions and communications Mr West had with Ms Brunker about these matters amount to any management action taken by Mr West.

• [51] In my view, the action pointed to by the Department about Ms Brunker's workload concerns a broadly expressed expectation of her direct manager (Mr West) about how she would exercise her own managerial discretion and judgment in performing her role. This was not management action; that is, it was not any specific action taken by Mr West managing, handling, directing or controlling Ms Brunker's workload.

• [52] To the extent the decision not to backfill Mr Holden's position involved management action, I deal with that in paragraphs [64] to [108].

• [53] Secondly, if I am wrong, and the discussions and communications Mr West had with Ms Brunker about the discretions she may exercise, in relation to her role and workload, amounted to management action, then s 32(5)(a) of the Act is still not enlivened on the facts.

• [54] This is because management action, for the purposes of s 32(5)(a) of the Act, must not be too remote to the injury. Section 32(5)(a) of the Act has application only in respect of management action that has a causal connection with a worker's injury.[88]

• [55] I am not persuaded that, if what Mr West was doing was management action, it had a causal connection with her injury. My view is that such action was too remote to her injury.

• [56] A case that provides some assistance in assessing this issue is the decision of the Industrial Court of Queensland in RACQ Operations Pty Ltd v Q-Comp.[89]

• [57] In that case, it was claimed the appellant's system of work - in respect of its patrol officers who were dispatched to attend to members of the Royal Automobile Club of Queensland whose motor vehicles were disabled or troubled - was constituted by giving directions about sites to be attended and the provision of detailed workplace health and safety manuals. The manuals detailed how specific incidents were to be dealt with by patrol officers. It was claimed those directions and manuals provided the sufficient connection between (reasonable) management action and the worker's injury.

• [58] In rejecting that argument, President Hall stated:

The appellant's response was that patrol officers employed by RACQ were in an atypical situation because of the detail of the workplace health and safety manual and the significant discretions allowed to employees. The rejoinder, and it seems to me to have been correct, was that the judgements required of Patrol Officers and the discretions reposed in Patrol Officers by the Manual are so substantial as to render the preparation/circulation of the Manual and the giving of directions about vehicle location too remote from the injury to allow one to characterise the injury as "arising out of reasonable management action taken in a reasonable way by the employer". Without that minimal causal nexus, s. 34(5)(a) cannot apply, compare WorkCover Queensland v. Curragh Mining Pty Ltd (2003) 172 QGIG 6 at 7. The point may be illustrated by reference to the provisions of the Manual dealing with the situation in which a patrol officer is sent to a vehicle parked by the roadside. The relevant provision is para 2.5 which provides:

The circumstances of any particular on road job will often vary, depending on the job location and the nature of the breakdown. Discretion as to how a particular job site should be treated must always be adopted. The following variables must be followed when establishing an on road site.

Be seen is the best practice in all situations. Patrols and M.T.O.'s should make the job site as obvious as is reasonably practicable, to provide other drivers with sufficient warning of the job site and the need for caution or possible evasive action.

When providing roadside assistance the safety of you and the member/s is paramount. Arriving at a breakdown location and you consider the position of the vehicle to be unsafe have the vehicle towed to a safe area. Tow the vehicle with the towrope provided or call for a Tow Truck to tow the vehicle to a safe location.

Potential danger areas to be considered are:-

1. Road width for passing traffic.
2. Clearway or No Standing Zone.
3. Visibility of the Job Location for on-coming traffic.
4. Speed of passing traffic.
5. Traffic congestion.".

The car by the roadside was the situation which confronted Mr Barnes at Sumner Road. Conceding the obligation to tow the vehicle to a safe position to be mandatory, the obligation arose only if the patrol officer considered "the position of the vehicle to be unsafe". Mr Barnes made that assessment and came to the conclusion that he might with safety refuel the vehicle, notwithstanding that he was required to stand on the side of the vehicle facing the road. Mr Barnes erred in that judgment in that a particular vehicle drove atypically close to the edge of the road, and caused him to fear for his safety.[90]

• [59] Assuming that the communicated expectations by Mr West to Ms Brunker concerning the prioritisation of her work, the delegation of her work, what hours she should work (outside of disaster responses) and her ability to obtain relief or take a break amounted to management action within the meaning of s 32(5)(a) of the Act, then, in my view, such management action was too remote from her injury.

• [60] This is because, having regard to Mr West's evidence (referred to above in paragraph [48]), the matters raised by him with Ms Brunker were at a general level. They were what Mr West expected of Ms Brunker in the exercise of her discretion or judgment, as a Manager, about how she would decide she would work.

• [61] The discretions to be exercised by Ms Brunker about these matters, in her senior management position, located in Mareeba, with her own team to directly supervise, are too substantial to have any connection with Mr West's generally expressed expectations about how Ms Brunker was to perform her role.

• [62] For these reasons, my view is that that there was not a causal connection between that (assumed) management action and Ms Brunker's injury.

• [63] To the extent the decision not to backfill Mr Holden's position involved management action that was remote or otherwise, I deal with that in the following paragraphs.

The decision not to backfill Mr Holden's position

• [64] As from 17 September 2018, Mr Holden was said to be 'seconded' from his substantive position, as Industry Development Officer in RED North, to a temporary position entitled Principal Policy Officer, classification AO7, in Planning, Industries Food and Trade ('PIFT').[91] This was initially for three months, but was extended and ended in June 2019.[92] Mr Holden's work location remained in Mareeba during this time.[93]

• [65] In my view, describing Mr Holden's move to PIFT as a secondment may not be entirely accurate and, for the reasons given below, that inaccuracy exposes a difficulty in one of the Department's submissions. At the material time, s 120(1)(a) of the Public Service Act 2008 provided that the chief executive of a department may 'second'[94] a public service officer of the department within the department. On the evidence before me, that is not what occurred in respect of Mr Holden. There was no evidence that an authorised delegate of the Chief Executive of the Department, of their own volition, exercised any discretion to second Mr Holden from RED North to PIFT.

• [66] The evidence is that Mr Holden expressed an interest for the temporary PIFT position, he was successful in being selected for it, he accepted the temporary appointment when it was offered to him, and after his successful selection, he advised Mr West and Ms Brunker of that fact.[95]

• [67] The evidence is that the officer of PIFT who advised Mr Holden of his success in his expression of interest, Mr Chris Devine, described Mr Holden's appointment as a '... temporary appointment'.[96] This is the more accurate way to describe Mr Holden's temporary move to PIFT. To the extent that Mr Holden's temporary appointment itself involved management action, it was the management action of selecting him to be temporarily appointed to the position in PIFT following Mr Holden's expression of interest in the position.

• [68] The Department submitted that Mr Holden's secondment was '... approved by Ms Brunker.'[97] For the reasons given in the previous three paragraphs, that was not the case. Ms Brunker had no approval power or authority in respect of Mr Holden's temporary appointment to PIFT, other than agreeing to an operationally convenient date that Mr Holden could be released from RED North to go to PIFT.[98] Having regard to all this evidence, I do not find that Mr Holden's temporary appointment to PIFT was approved by Ms Brunker as submitted by the Department.

• [69] The more relevant issue is how Ms Brunker's managers acted in response to her agitation about how the duties of Mr Holden's RED North position were going to be performed in his absence.

• [70] In an email to Mr West dated 10 September 2018, Ms Brunker raised the issue of Mr Holden's substantive position in RED North being backfilled by way of an expression of interest.[99] Mr West asked Ms Brunker and Mr Elliot to draft a business case (to temporarily replace Mr Holden) so he could take the matter up with Mr Miller.[100] Ms Brunker put forward a first such business case by email to Mr West on 14 September 2018.[101]

• [71] The fact that Mr Holden was to be working in another position was of concern to Mr West, particularly in respect of RED North's delivery of services during the 2018-2019 disaster season, and he expressed such concern by email to Mr Miller dated 6 September 2018.[102] By email dated 10 September 2018, Mr West expressed to Mr Miller his view that backfilling Mr Holden's position was his preference.[103]

• [72] Mr West's own evidence was that backfilling of Mr Holden's position was a priority issue for him, and that he also took that issue up with Mr Miller by telephone and also in face-to-face meetings.[104]

• [73] However, Mr Holden's substantive position was not backfilled during the entire period of his secondment (which was extended to 30 June 2019).[105]

• [74] Mr West's evidence as to why Mr Holden's substantive position was not backfilled, in respect of the first three month period of his absence, was:

• RED North was under a full-time equivalent cap (in respect of employee numbers) and the business group that Mr Miller was administering, of which Mr West was a part, was projecting a deficit;[106] and

• Mr Holden was to remain in Mareeba, in the same building within about 10 to 15 metres of where Ms Brunker was located and, further, there was an agreed position between Mr Miller and PIFT that, if needed, particularly in an emergency response situation, Mr Holden could be released to assist RED North in that regard.[107]

• [75] Ms Brunker put forward a second business case, for Mr Holden's position to be backfilled, by email to Mr West dated 21 December 2018.[108] By that stage it had become clear to Mr West[109] and then to Ms Brunker[110] that Mr Holden's temporary transfer would be extended until 30 June 2019. In that email, Ms Brunker stated:

I'd like to reiterate that we do need this position backfilled, as otherwise these tasks I have to add to my already busy role.[111]

• [76] Mr West's evidence was that he was acutely aware of the resourcing implications, not just for Ms Brunker but for the '... broader group', if Mr Holden's vacancy was managed for another six months.[112]

• [77] By email sent on 22 January 2019 to Mr West, Ms Brunker enquired if the business case she put forward for Mr Holden's vacancy to be backfilled, until June 2019, had been approved. Mr West responded in an email sent on the same date relevantly stating:

I have a meeting scheduled with Bob and Elton in Brisbane tomorrow regarding a raft of HR/ Resourcing issues for North

The reality is if the savings that Elton requested remain for the 18/19 financial year, I will be vacancy managing Peter 's role through till June 2019 to achieve this.[113]

• [78] By return email sent on the same day, Ms Brunker stated:

Thanks for the update however flagging that some things will need to drop off if Peter not backfilled and given cyclone season will ramp up now then this will be additional interruption[114]

• [79] By a response email from Mr West to Ms Brunker, sent on the same day, he stated:

Yep - acutely aware of the implications of not having a full staff compliment [sic].[115]

• [80] Mr West's evidence was that the reasons for the rejection of the second business case were the same reasons as those for the rejection of the first, namely, RED North's full-time equivalent staff parameters, budgetary savings and '... I guess an agreed position that we would, as a collective, manage the implications of that vacancy.'[116]

• [81] Mr West's further evidence was that Ms Brunker would pick up a significant percentage of Mr Holden's duties during his absence.[117]

• [82] Ms Brunker's evidence was that while Mr Holden was able to assist her in respect of her disaster management,[118] she had to perform some of his other duties including:

• dealing with enquiries that came in;[119]

• undertaking economic analysis (in respect of which she was assisted by agronomists);[120] and

• on occasions, attending the Tablelands Futures group meetings ('the Tablelands Futures work'), but that '... the rest of it I put off'.[121]

• [83] Ms Brunker stated that the effect of the non-backfilling of Mr Holden's position was that she had extra duties, other tasks would not get done or would get delayed or postponed, and it caused a build-up of her tasks.[122]

• in the first three months of his 'secondment', he did perform some of the work of his substantive position, although his evidence was vague as to the volume;[123] and

• from about 17 December 2018, he only performed his 'seconded' role full-time, other than in respect of responding to natural disasters.[124]

1. The only management action in respect of the Claimant's intense workload and her dealing with disaster responses while maintaining a core regional manager's role was with respect to not backfilling Holden's position.
2. However, not only was it the fact that Holden's position was not backfilled, it was primarily her own workload and the issues with the disaster management that were her main concerns.
3. As West pointed out, the backfill to perform some of Holden's functions was part and parcel of her duties.
4. According to West, she was an eminently capable and experienced manager who was expected to menage in her role as the Manager North Queensland Region.
5. The failure to backfill may touch upon the Claimant's injury, but is not causative in the sense required by s32(5)(a) of the Act and, in those circumstances, stressors A and B as set out in paragraph 90 above, do not arise out of, or are not in the course of, reasonable management action taken in a reasonable way in connection with the claimants employment.

• [86] The Department did not submit that the decision not to backfill Mr Holden's position, considered on its own, triggered s 32(5)(a) of the Act. The Department's submissions about this issue went to the reasonableness of the management action it says Mr West took about Ms Brunker prioritising her work.

• [87] In this regard, the Department submitted:

1. Ms Brunker raised the matter again in an email dated 22 January 2019. Mr West replied to the effect that they were "vacancy managing the position as the primary mechanism to deliver savings dividends required". Mr West advised Ms Brunker that he was acutely aware of the implications of not having a "full staff complement" in response to Ms Brunker, saying that if Mr Holden was not replaced "some things will need to drop off' (underlining added). This was a pellucidly clear statement to Ms Brunker that some work would need to go undone, with the authority of Mr West.
2. This confirms that there was no requirement for Ms Brunker to take on the work that was not being undertaken by Mr Holden and that she had to prioritise. If things needed to drop off, they could, as directed by her direct line manager.[125]

• [88] In relation to these submissions by the Department and, in particular, the last sentence in paragraph 66 - that if '... things needed to drop off, they could, as directed by her direct line manager' - the Department cited, in support of that submission, evidence given by Mr West in cross-examination. Mr West's evidence was:

And they had a limited opportunity to assist in any meaningful way in respect to Mr Holden's duties, you'd agree with that?---It would require a realignment of their time and effort balancing other competing interests, correct.

And if they were unable to do that, then they wouldn't be able to assist in any meaningful way, would they?---Well, the answer would be no, which would be where if it was time critical or of importance, Alison - I would have an expectation that if Alison could not manage that, that would be forwarded as a clear and present issue for myself to resolve.[126]

• [89] In my view, this evidence of Mr West is not evidence of an express direction he gave to Ms Brunker that Mr Holden's work could '... drop off' if it could not be done. Mr West's evidence goes to what he expected Ms Brunker might do, in the exercise of her judgment or discretion as a senior Manager, in respect of the performance of Mr Holden's duties.

• [90] Similarly, Mr West's email to Ms Brunker dated 22 January 2019 (referred to in paragraph [79]) is not evidence of an express direction that Ms Brunker could let some of Mr Holden's work drop off. Rather, Mr West's statement in that email that he was '...acutely aware of the implications of not having a full staff compliment [sic]' when read in the context of the preceding email to him from Ms Brunker, is merely an acknowledgment by him that Ms Brunker, in the exercise of her judgment as a Regional Manager, may decide that, having regard to the forthcoming disaster season, some of Mr Holden's work would not be done.

• [91] On the evidence, the failure to backfill Mr Holden's position did have a causal connection with Ms Brunker's injury. Dr Bayley's evidence tends to prove this to the extent she stated that Ms Brunker's injury was '... exacerbated by inadequate resources with regards staffing within her department to allow her to engage in her various roles in a satisfactory manner.'[127]

• [92] The actual decision not to backfill Mr Holden's position did involve management action, namely, the 'vacancy managing' (as Mr West described it in his email to Ms Brunker dated 22 January 2019) of the duties of Mr Holden's vacant role. For the reasons I give below in respect of the third stressor, that was not reasonable management action.

• [93] However, to the extent the Department submitted that managing the workload created by the vacancy of Mr Holden's position involved management action due to the '... pellucidly clear statement to Ms Brunker that some work would need to go undone, with the authority of Mr West', then I cannot accept that submission.

• [94] Again, no management action is involved.

• [95] For the reasons given above, Mr West did not direct that Ms Brunker could let work drop off. At most, the evidence is that Mr West had an expectation that Ms Brunker could decide not to perform some of the work of Mr Holden's position. This concerns a discretion that Mr West expected Ms Brunker may exercise.

• [96] Mr West's general expectations of how Ms Brunker would perform her role does not amount to management action taken by him in terms of a direction as to how Ms Brunker was to perform any of the work of Mr Holden's position. Indeed, the managerial discretion and judgment Mr West expected Ms Brunker to exercise was expressly accepted by the Department in its written submissions. The Department submitted:

1. It was in Ms Brunker's managerial remit to use the resources of her time as she saw fit (balancing the service delivery priorities of the day). Contrary to the Respondent's assertions that Mr West should have made specific enquiries of Ms Brunker's staff to make sure they were undertaking work, such an action would be to micro-manage a senior manager who was eminently capable of, and reasonably expected to be capable of, managing her team.
2. Notwithstanding that Mr Holden's role was not backfilled, it was never expected that Ms Brunker would perform a high percentage of his duties. Her role as manager was to respond to them by performing them herself, to delegate them to others, to seek assistance from elsewhere in the Region, to seek assistance from Mr West, or to balance competing interests. All of this is a standard part of the management role of an A08 Manager. Further, it was acknowledged expressly by Mr West that some work would not be able to be performed.[128]

• [97] Again, if I am wrong and such an expectation (of Mr West) was management action, then it is too remote from Ms Brunker's injury. The managerial discretion and judgment to be exercised by Ms Brunker, in respect of the additional work thrown up by Mr Holden's vacancy, is too substantial to have any connection with Mr West's generally expressed expectations about how Ms Brunker may deal with such additional work. If Mr West's expectation about which of Mr Holden's work she may perform was management action, it was spent by the time Ms Brunker decided to let any such work drop off.

• [98] For these reasons, my view is that that there could not be a causal connection between this (assumed) management action and Ms Brunker's injury.

1. Regarding the work of Mr Holden's role, some of the work went into abeyance, other aspects were shared between the remaining staff and Ms Brunker, and some aspects were performed by Mr Smith and Mr Jones.[129]

• [101] The evidence relied upon for this submission was Mr West's evidence in chief[130] and his evidence in cross-examination.[131] Mr Smith and Mr Jones were not called to give evidence.

• [102] I do not accept that Mr West's evidence provides support for this submission. First, Mr West's evidence in chief about this was vague. In his evidence in chief, Mr West was asked how the general lack of Mr Holden's availability was managed. Mr West's answer was:

So for any given officer, there's a range of priorities. So some of the more menial, less risky, less profile stuff, it literally went into abeyance. So what we started to do as a business group through Alison, less so Angelique and Mindi because of their specific project work, but Mindi certainly started to take on a broader administrative support role, but what we did was start to load share the higher profile elements of Peter's role. So from a planning sort of perspective, Peter Elliott took a stronger role because of his experience and credentials and training, etcetera in that space. Some of the representation stuff probably slipped, but otherwise Alison would have taken on some additional work, and we certainly saw some load sharing through to other managers, myself included, but also Gareth Jones. It was a load share collective effort to address the vacancy.[132]

• [103] Mr West did not expand upon what he meant by a '...load share collective effort' and he did not give any precise evidence of how such an effort meant any of Mr Holden's duties were performed by an officer other than Ms Brunker.

• [104] Mr West was pressed about this in cross-examination and his evidence was even more vague, namely:

Thank you. Now, when Mr Holden was seconded, Ms Brunker voiced her concerns about the need to put somebody in that position so as to negate the excess or the extra work it would put on the team, her team and particularly her?---Yes.

All right. So what did you do about that?---I guess to start at the start, it was a review then of - and this was done with Alison - around the current roles and responsibilities project wise, representation, other things that Peter was currently doing, yep. So it was clearly evident that for me a subset of those duties were very low risk if they didn't actually persist. There were another subset that absolutely required it had to be done. So the initial approach was to obviously seek to backfill and that wasn't evident. It was, I guess, out of necessity a need to load share, share not only amongst Alison, but the broader RED North team the responsibilities that - the core subset of responsibilities that Peter in his absence would not be able to undertake.[133]

• [105] Mr West was then asked what arrangements he put in place for Mr Holden's duties to be done by someone other than Ms Brunker. Mr West's response was similarly vague:

Well, from a statutory, non-statutory planning linkage, there was really only one other officer that could assist that had skills or experience to do it, which was Peter Elliott. The broader side of things, in essence, a lot of that would have fallen to Alison in terms of how that was best aligned or those duties were best completed having access to not only her direct team but obviously the broader suite of resources that could be brought to muster through the RMT, regional management team, collective.[134]

• [106] Mr Elliot's evidence was that he did not take on any more of Mr Holden's functions that he was doing previously and he did not do any more work in Mareeba than Mr Holden would have done.[135]

• [107] On the evidence before me, namely Ms Brunker's evidence, Mr West's vague evidence as set out above and Mr Elliot's evidence, I do not accept the Department's submission that officers other than Ms Brunker did any of Mr Holden's duties.

• [108] This finding is relevant to my assessment of the third stressor below.

• [109] For the reasons I have given, s 32(5)(a) of the Act is not enlivened in respect of the first stressor.

The second stressor - was management action involved, that was reasonable and undertaken in a reasonable way, in respect of the issue of Ms Brunker's disaster response work and the performance of the duties of her Regional Manager position?

• [110] As referred to above, the Department contends that:

• Ms Brunker's dealing with disaster responses while undertaking the core duties of her Regional Manager's role was inextricably linked to management action; and

• that management action was reasonable because Ms Brunker was not required to maintain her Regional Manager's role during disaster responses;[136]

• [111] In written submissions, the Department submitted that:

• there was never any expectation that, during a disaster or emergency response, Ms Brunker would work a full or extended day of her disaster response duties and then have to action other tasks the same day, and there was no expectation that she would need to work longer or extended hours to clear the inevitable backlog of work that builds up during major disruptions;[137] and

• Ms Brunker '... was not required to maintain her core Regional Manager role during disaster responses (as conceded by Ms Brunker).'[138]

• [112] In oral submissions, the Department submitted:

• on the evidence, there was no requirement for Ms Brunker to continue to perform her core role whilst being required to deal with a disaster response;

• it was made clear to Ms Brunker by Mr West that disaster response was to be the priority, which was also made clear by the 2018 Disaster Plan that she wrote;

• Ms Brunker understood that the other duties had to be put to one side;

• Exhibit 7[139] tends to prove that, in terms of her overall role and workload, 20 per cent of her time was budgeted to disaster response activities; and

• Ms Brunker gave no evidence of any occasion where she was required to maintain, in any significant way, her core regional management role during her dealing with various disaster responses; and

• there was a reasonable expectation by management that, as part of her role, Ms Brunker respond to a disaster response and that when involved in a disaster response, she was not required to maintain her core regional management duties.[140]

• [113] The Regulator submitted that no management action was involved in respect of Ms Brunker dealing with disaster responses while maintaining her core Regional Manager's role. [141]

• [114] The Department's overall case is that Ms Brunker's injury arose out of, or in the course of, reasonable management action. Specifically to the issue of Ms Brunker dealing with disaster responses while simultaneously undertaking other core duties of her role, its case is that this matter is related to allocated workload which is inextricably linked to management action.[142]

• [115] Therefore, the principal question is whether there was any relevant management action involved in respect of the other duties Ms Brunker would perform when she was required to perform disaster response duties.

• [116] For the reasons that follow, on the evidence before me, there was no such management action.

• [117] The Department submitted that Mr West explained to Ms Brunker, on a number of occasions, that her position included both managerial and disaster response aspects within the same position, that she was required to prioritise her workload,[143] and during a disaster response, it was expected she was to put other work to the side.[144]

• [118] In support of these submissions, the Department referred to the following evidence:

• discussions Mr West had with Ms Brunker about her prioritising her workload,[145] including how she utilised the employees in her team in the prioritisation of her work;[146]

• Mr West's reply email to Ms Brunker sent on 1 November 2018 in which he relevantly stated:

The gist of your conversation was that RED activity was already 100% of your time, and that the DM work adds on an additional 20%.

The DM work is business critical, will not be going away and for now, has you in a key leadership role.

Obviously we are now going to explore support capacity/capability, but in the interim, you will need to prioritise and manage your time appropriately to accommodate DM responsibilities within normal/acceptable work parameters and boundaries.[147];

• the meeting notes of the RED North workshop held on 30 and 31 October 2018 ('the RED North workshop');[148]

• the 2016 PDA[149] and the 2017 PDA;[150] and

• the clear articulation by Mr West, in discussions with Ms Brunker, that during a disaster response, all other work was to be put to one side.[151]

• [119] I cannot accept these submissions. In my view, on the evidence, there was no management action involved in the issue concerning the performance of Ms Brunker's disaster response duties and the ordinary duties of her role as Regional Manager. That is to say, on an examination of the evidence, at best, Mr West was expressing the view to Ms Brunker that, as a senior manager whose position was classified at AO8, he expected her to prioritise her duties particularly when she was required to perform disaster response duties.

• [120] However, no management action was taken by Mr West in relation to this issue in that Mr West was content to leave it to Ms Brunker to exercise her discretion, as a manager, in relation to these competing work demands.

• [121] In terms of the discussions Mr West had with Ms Brunker about her prioritising her workload, including how she utilised the employees in her team in the prioritisation of her work, the evidence given by Mr West about such discussions was at a general level. For example, in the evidence of Mr West relied upon by the Department,[152] he stated:

Yes?---So Alison was extremely committed to work, had incredibly high standards of herself, her staff and others. So tasks that were set to her often became very, very important to her. As I said to you, she had made, in my view, the disaster space through the refinement of our plan, processes, supporting documents, etcetera her own. So yeah, she had a really high performing commitment work ethos and matched with at times - I'm going to choose my words - but a suboptimal arrangement with her support staff, her direct reports. And I think at times struggled to prioritise or delegate for a range of reasons. So Alison would take on a high degree of ownership herself. So I guess where that exceeded or started to impinge on a healthy work/life balance we often had conversations about how she should go about implementing approaches to manage that. And that ranged from taking leave, be that flex, TOIL, etcetera, through to prioritisation right the way through to making better use of the resources that report to her and broader.[153]

• [122] Similarly, the evidence of Mr West, pointed to by the Department, about Ms Brunker prioritising the work of the employees she supervised,[154] was also broad in nature:

Now, why did you take that approach?---Exactly that, Alison was an experienced, senior manager that had a number of direct reports at her disposal, having due regard for a number of priorities initiatives. So she was totally at liberty and had direction to utilise those resources as she best saw fit to meet the priorities at the time. So I guess, without being rude, this was being a little bit reflective in a way and saying, Alison, as a manager, take some initiative here around how to best utilise your resources and I'll support you if it makes sense.[155]

• [123] In the same vein, Mr West's email sent to Ms Brunker on 1 November 2018 (cited by the Department in its submissions[156] as evidence in support of its contention and which is reproduced in the second dot point in paragraph [118] above) does not persuade me that that email involves management action on the part of Mr West. The broad statement made by Mr West, in the last paragraph of that email, cannot be characterised as him managing, handling, directing or controlling Ms Brunker about her disaster response duties. Rather, it is a statement about Mr West's expectations of how Ms Brunker will exercise her own broad managerial discretion in that situation.

• [124] The meeting notes of the RED North workshop held on 30 and 31 October 2018 do not contain any express record of any relevant direction to Ms Brunker.

• [125] As best as I can read Mr West's handwritten notations on the PDAs, there does not appear to be any express direction from Mr West that Ms Brunker's disaster management work was to be prioritised over other work.

• [126] In terms of the Department's submission that there was a clear articulation by Mr West, in discussions with Ms Brunker, that during a disaster response, all other work was to be put to one side,[157] the evidence relied upon was Mr West's evidence in chief recorded at T 1-31, l 36 to T 1-32, l 14 and T 1-32, ll 30-34.[158]

• [127] A perusal of that transcript is that Mr West was speaking broadly about various discussions he had with Ms Brunker about her prioritising her work.

• [128] It is entirely understandable that Mr West would express his expectations that Ms Brunker would prioritise her work. After all, Ms Brunker was a Regional Manager, whose position was classified at AO8. Further, Ms Brunker was located in Mareeba while Mr West was located in Townsville.

• [129] However, for the reasons I have given, these various discussions and comments Mr West made to Ms Brunker about how he expected her to exercise her own managerial discretion in prioritising her own work, during a disaster response, does not amount to management action within the meaning of s 32(5)(a) of the Act.

• [130] Again, as with the first stressor, if I am wrong and the discussions and communications Mr West had with Ms Brunker (cited by the Department) amounted to management action, then in my view, the management action did not have a causal connection with Ms Brunker's injury.

• [131] Ultimately, it was Ms Brunker's managerial judgment and managerial discretion that was to be exercised in respect of putting aside the performance of her ordinary duties of her Regional Manager role during a disaster response. In that respect, any management action taken by Mr West about his expectations of what work Ms Brunker would perform at any particular time, would have been spent. Ms Brunker's discretion, about what work she did at any particular time, was too substantial for her injury to have any causal connection with such management action by Mr West.

• [132] There was evidence that, as part of RED North's human resource budget, 20% of Ms Brunker's time was allocated to disaster management.[159] However, even assuming such an allocation was management action, it is too remote from Ms Brunker's injury because it is merely a budget allocation on paper.

• [133] For these reasons, my view is that there could not be a causal connection between this (assumed) management action and Ms Brunker's injury.

• [134] For the reasons I have given, s 32(5)(a) of the Act is not enlivened in respect of the first stressor.

The third stressor - was there, in reality, a lack of support from Ms Brunker's management and, if so, was the lack of support reasonable and undertaken in a reasonable way?

• Ms Brunker was supported by management (thus management action was taken in a reasonable way);
• any '... perception of lack of support from managers' was just that, and not the reality;
• Ms Brunker was repeatedly told to prioritise, was told it was fine to drop things off, had support available during the (disaster) responses and was the manager of her team with the resultant reasonable expectation that she would manage her and their workload accordingly;
• Ms Brunker was herself confirming her availability to undertake disaster work, even as late as February 2019; and
• management's response has to be considered in the context of all of the circumstances, including Ms Brunker's communications to Mr West.[160]

• [136] The Regulator, in written submissions, contended:

1. The lack of support from management, rather than being the Claimant's perception, was the reality of what occurred for the following reasons:

(a) the Claimant had suffered significant physical illness after the 2017/2018 disaster season such that she required hospitalisation;

(b) the Claimant approached West and informed him that she did not want to continue in the same role as the coordinator was the previous years [sic];

(c) the Claimant had in fact made an application for a different position in South East Queensland of which West should have known;

(d) the Claimant had gone to the position of providing a number of alternative scenarios for the 2018/2019 disaster season in respect of the roles that she engaged; Holden was seconded to the higher duties on 17 September 2018;

(e) the Claimant put forward on at least two occasions a submission for that role to be backfilled, which it was not;

(f) the Claimant, to West's knowledge, was complaining about the lack of support and the workload overwhelming her towards the end of 2018 and into 2019. West did nothing other than to suggest that he had in place processes to alleviate any issues that may arise because of the requirement for the Claimant to pick up a significant portion of Holden's roles;

(g) West knew that Elliott was in Townsville and he knew that both Zirl and Tornak were in Cairns. They could be of little help to the Claimant.

1. Bearing all this in mind, West took no steps to contact the Claimant personally in order to ascertain how she was performing, as to whether she was in fact overwhelmed and whether, in fact, she needed some support.

1. West simply left her to manage in circumstances that prevailed.

1. In all the circumstances, the lack of support from management, rather than being perceived, was real.

• [137] To assess these submissions, it is necessary to look at the evidence concerning Ms Brunker leading up to the 2018-2019 disaster season.

• [138] After the 2016-2017 disaster season, Ms Brunker suffered from diverticulitis, was hospitalised and off work for about six weeks.[161] Mr West agreed that he knew Ms Brunker had suffered from that illness and had been off work.[162]

• [139] In the 2017-2018 disaster season, Ms Brunker also suffered from viral meningitis and was hospitalised for about six weeks.[163] Again, Mr West agreed that he knew Ms Brunker had suffered from that illness and had been off work.[164]

• [140] Indeed, Mr West's evidence was that, after the 2017-2018 disaster response, Ms Brunker had expressed to him that she wanted a less demanding role in disaster response. Mr West gave the following evidence in cross-examination:

Ms Brunker had raised with you, hadn't she, the hypothesis that she might move out of the regional manager's role, particularly the disaster response duties of that, into a less hands-on role with the disaster response?---Yes.[165]

Ms Brunker's proposed restructuring of RED North management

• [141] By email from Ms Brunker to Mr West dated 11 September 2018, Ms Brunker proposed some options about the restructuring of the RED North management.[166] Mr West's evidence was that Ms Brunker's issues in this email concerned her job title and remuneration.[167]

• [142] However, Ms Brunker's evidence was that she had discussed with Mr West that her workload was high and that he had asked to put forward some suggestions which resulted in her email to him dated 11 September 2018.[168] That email forms part of Exhibit 11, and four options (Options A, B, C and D) were put forward by Ms Brunker including the removal, from her, of some of her responsibilities in her Regional Manager's role and the distribution of those responsibilities to other managers.[169]

• [143] Ms Brunker's evidence was that while Mr West stated that these matters would be discussed at the RED North workshop meeting in October 2018, none of the options that she put forward were acted upon.[170] I discuss below the fact that there was some further email communication between Ms Brunker and Mr West, before the RED North workshop, about Option A as proposed by Ms Brunker.

• [144] Mr West's evidence was that at the RED North workshop in October 2018, these options were still under discussion.[171]

• [145] There is no evidence any of these options, either in full or in part, were adopted or accepted by Mr West for the 2018-2019 disaster season.

• [146] On 13 September 2018, Ms Brunker (unsuccessfully) applied for the temporary position of Director, South East Queensland Region.[172] Ms Brunker's evidence was that the reasons she applied for that position were:

• her role was expanding, she was having a performance development agreement coming up, and she had raised many times that she required more staff or that a delineation of roles be segregated to other people; and

• she did not want to undertake the disaster activity in the forthcoming disaster season (2018-2019).[173]

• [147] Mr West was cross-examined about his knowledge of Ms Brunker's application for this position and his evidence connected with that issue, as follows, is instructive in relation to the third stressor:

No, I'm just asking did you know about that? Did you know that she'd applied for a job in Southeast Queensland?---I can't recall.

If she'd applied, would you have been notified of that, do you think?---Yes.

All right. So you can't recall her applying for a temporary position of Director Southeast Region?---I can't, which is unusual because that - for me, that would be something that Alison - and she was quite open in that regard that we've discussed. But at this point in time I can't remember any detailed conversation around her wanting to take on such a role.

All right. But you agree she'd applied for a temporary position in south as director?---Yes, clearly.

Manger [sic] southeast region. In fact, she'd spoken to you, hadn't she, about the dilatory effect that the disaster management was having on her health?---Yes, that was one part of the discussion. If you don't mind me saying, Alison had had quite longstanding and a range of personal health issues. And it was certainly something that I was attuned to, particularly in more intense work situations. I had - I was certainly aware, partly because of her work ethos, underlying health issues, etcetera, but yeah, there was a - - -

Well, her work was having - sorry?--- - - -an environment where she would sort of crash a bit sometimes, that's correct.

There were issues where she - her health suffered because of what she was doing at work, correct?---Work was potentially or certainly one contributing factor, correct.

Okay. And she'd raised with you the difficulties she was having and the fact that she really didn't want to be involved in the disaster response role for the 2018/2019 20 year?---I wouldn't necessarily agree with that. She'd certainly given me in no uncertain terms an indication that there were other options that I should be considering which, if viewed favourably, would enable her to temper her - the level of leadership that she had had in that space, correct.

And did you - bearing that in mind, did you monitor her performance and how she was travelling, if I could say health wise, after June 2018 up until Mr Peter Holden was seconded in September 2018?---The answer would be yes. Was it overt monitoring of her health and wellbeing? No. Was it regular engagement, both through structured meeting schedules and indirect engagement? Yes.[174]

Ms Brunker's request for a person to be employed in the position of Senior Project Officer, classification AO6

• [148] By email dated 26 September 2018 to Mr West, Ms Brunker also requested an additional support person, to be employed in the position of Senior Project Officer, classification AO6, to assist her with her disaster management responsibilities.[175]

• [149] Mr West accepted that by her email, Ms Brunker was signalling that she needed more help in respect of the high-level tasks that she was performing.[176]

• [150] Mr West's evidence was that the request was not approved as it was beyond his power as Regional Director to approve, and that while he forwarded the request to Mr Miller for consideration, it was not approved:

[D]ue to FTE caps, due to budgetary constraints, requirement for savings dividends and also competing interests for positions across Elton's remit, including policy and regions, it was not viewed favourably.[177]

Ms Brunker's request to be relieved of some of her disaster response duties

• [151] As I understand Ms Brunker's evidence, at the RED North workshop held on 30 and 31 October 2018, Ms Brunker raised a number of issues on behalf of her team, stated that she needed support in the '... disaster management area' and that she would like to have a break, not totally from the Regional Controller's role, but just from coordinating disaster responses.[178]

• [152] On 2 November 2018, Ms Brunker sent an email to Mr West about a comment made by a colleague to her at the RED North workshop the day before. As part of that email, Ms Brunker stated:

These comments are exasperated by Peter Holden not being backfilled and confusion re-support requested in DM space.[179]

• [153] Mr West was cross-examined about these matters. The transcript records:

But see, rather than being supported, this meeting - this meeting was critical of her. Do you see what I mean? She's raising issues about workload, and people are being critical of her?---To a degree. I - there was a broader suite of issues. I think Alison was more concerned about some of the comments of - of the individual, and, you know, it linked with the ongoing vacancy management of Peter, etcetera. There is a - I'm acutely aware of this email. I - I did have a response email and a follow-up with Alison directly about this matter.[180]

• [154] Mr West responded by email on the same day in which he relevantly stated:

I conveyed some of my thoughts in my last email regarding time management and prioritisation.[181]

• [155] There is no evidence of any relief being provided to Ms Brunker, in respect of her disaster response duties, over the period of the 2018-2019 disaster season.

• [156] Ms Brunker's evidence was that, in respect of her responsibilities under the 2018 Disaster Plan, the 2018-2019 disaster season started on 12 December 2018.[182]

• [157] There were a number of responses required by the RDRT in the 2018-2019 disaster season arising from:

• Tropical Cyclone Owen ('TC Owen') in December 2018;[183] and

• Tropical Cyclone Penny between December 2018 and January 2019.[184]

• Ms Brunker had a month's leave planned from 10 December 2018, but that leave had to be adjusted because Mr West directed her to conduct a workshop on 12 December 2018;[185]

• Ms Brunker was to have eye surgery on 14 December 2018, but that was postponed because of Ms Brunker's disaster response duties commencing on 12 December 2018 due to TC Owen and she performed those duties from 12 December to 20 December 2018;[186]

• while Ms Brunker was to then commence leave on 21 December 2018, that was postponed[187] until 27 December 2018[188] and she returned from leave on 22 January 2019 (although she was due back on 21 January 2019 but could not return that day due to illness);[189] and

• - Mr West had emailed her specifying certain work that had to be completed as a priority regarding the OSS,[190] to which Ms Brunker responded by asking about the status of the backfilling of Mr Holden's position[191] and in respect of which their subsequent email exchanges about those issues are set out in paragraphs [77] to [79];

• - Ms Brunker's workload was considerable because of TC Owen and other smaller events, and she had to deal with emails that came in when she was on leave[192] as well as trying to delegate work;[193] and

• - Ms Brunker went on disaster alert on 23 or 24 January 2019 and then performed disaster response duties from around the weekend before the public holiday in January 2019, in respect of flooding in the Port Douglas Shire Council,[194] and did not stand down from those duties until 8 February 2019.[195]

• [159] Ms Brunker came back to her substantive role on 11 February 2019. Ms Brunker's evidence was that most of her work (from 22 January 2019 upon her return from leave) '...was still sitting there'[196] including the OSS work, work concerning a trade forum and a visit by the responsible Minister.[197] Ms Brunker also stated that:

• she could not do her own work let alone the work of Mr Holden's position;[198]

• the only other person who could perform a major part of Mr Holden's work - the Tableland Futures work - was her, and she could not delegate that work to other members in her team because they were on other duties at that time;[199] and

• immediately before she went to hospital (due to the symptoms she was experiencing that led to her claim for workers' compensation) she was advised she had to undertake some work in preparation for a visit to the region by the Premier of Queensland.[200]

• [160] The evidence surrounding Mr Holden's temporary appointment to PIFT, and the fact that his position within RED North was not filled, despite Ms Brunker's continued requests for his position to be filled, are dealt with above.

• [161] In cross examination, Mr West agreed that Ms Tonak and Ms Ziehrl, because of their specific OSS duties, would be in a limited position to take up the duties of Mr Holden's position.[201] Mr West also said that a high percentage of Mr Holden's duties fell on Ms Brunker.[202]

• [162] Mr West also accepted that other managers had informed him that Ms Brunker was feeling overwhelmed, had a full agenda and was struggling due to the work created by the vacancy of Mr Holden's position.[203]

Was there, in reality, a lack of support from Ms Brunker's management?

• [163] On the evidence before me, there was, in fact, a lack of support from Ms Brunker's management.

• proposed a restructure of RED North management to remove, from her, some of her responsibilities;

• had requested an additional support person to be employed in the position of Senior Project Officer, classification AO6, to assist her with her disaster management responsibilities;

• had spoken to Mr West about the dilatory effect disaster management was having on her health and had requested to be relieved of some of her disaster response duties; and

• had requested, on two occasions, that Mr Holden's position be backfilled because of the effect it was having on the performance of her own duties.

• [165] None of these suggestions or claims made by Ms Brunker were acted upon, in full or in part, by her management.

• [166] The Department submitted[204] that, in the lead up to the 2018-2019 disaster season, Ms Brunker took:

• recreation leave from 9 July 2018 to 20 July 2018;[205]

• recreation leave and time off in lieu of overtime from 8 August 2018 to 10 August 2018;[206]

• recreation leave from 3 September 2018 to 7 September 2018;[207] and

• recreation leave from 19 September 2018 to 21 September 2018.[208]

• [167] While this was the case, there is no dispute that it was leave Ms Brunker had lawfully accrued and to which, subject to it being approved by Mr West, she was entitled.

• [168] There is also no dispute that Ms Brunker, during the 2018-2019 disaster season, could have requested time off in lieu of overtime or the assistance of other managers in the Central Region of RED.

• [169] However, in my view, the lack of support provided to Ms Brunker, in the face of her direct and specific requests, was real. Ms Brunker was not under any flawed perception that her management were not determinatively considering her requests for assistance.

• [170] This was particularly the case in relation to the performance of her disaster management responsibilities together with the additional duties, that only she could perform, that were thrown up by the decision not to temporarily replace Mr Holden upon his temporary transfer to PIFT. For the reasons I have given in paragraphs [99]-[108], I do not accept the Department's submission that aspects of Mr Holden's work were shared between Departmental staff other than Ms Brunker.

• [171] In DAF I relevantly stated:[209]

• [23] The correct enquiry is not whether or not unreasonable management action was the dominant cause of the injury. The phrase 'arising out of' in section 32(5)(a) of the Act can be readily understood, when combined with 'reasonable management action,' as requiring the demonstration of a causal relationship; and the phrase 'in the course of' in section 32(5)(a) of the Act generally requires a temporal connection.

• [24] The task for the Commission, when applying s 32(5)(a) of the Act, does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way; and sometimes that may involve consideration of what else might have been done however that will only be relevant to whether what was done was, in fact, reasonable.

• [25] The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.

• [26] Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.

• [27] Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.

• [172] I have outlined above in paragraph [164], the specific support sought by Ms Brunker prior to and during the 2018-2019 disaster season. As I have found above, none of the support sought was provided to Ms Brunker for that season. The Department does not submit that its response to these claims by Ms Brunker involved other than management action.[210] The question is whether this management action was reasonable in all the relevant circumstances.

• [173] The Department made a number of submissions about this.

The decision not to implement Ms Brunker's proposed Option A for the 2018-2019 disaster season

1. Ms Brunker requested in October 2018 to change the RDRT plan ahead of the 2018/2019 disaster period to allow for a two-team set-up in the North and Far North. It was not possible to implement the change on such short notice, as the disaster season commenced in November 2018.
2. It would have been very difficult to secure the staff to resource a dual RDRT in late 2018 and prior to the season commencing as appropriate training and inductions would have needed to be completed along with notifications to other key staff and regional stakeholders.
3. There was also an inherent risk in deviating from an accepted and proven emergency management plan framework without having invested the time in planning/preparedness of training.
4. Mr West was, however, supportive of the suggestion overall (see email exchange of 3, 9, 10 and 11 October). He undertook to implement it in advance of the following season. Subsequently in 2019/2020, the split region model was implemented.[211]

• [175] These submissions actually concern Ms Brunker's proposed restructuring of RED North that was first made in her email to Mr West on 11 September 2018 - not in October 2018 - as set out in Exhibit 11[212] and as referred to earlier in paragraphs [141] to [144]. This was one of four restructuring options (being Option A) put forward by Ms Brunker in that email.

• [176] The Department's submissions about the difficulty in implementing that proposal came from Mr West's evidence, namely:

• it was difficult to duplicate resources, get training and inductions, and heighten awareness around two discrete teams and have them operational and ready to function '... so close to the onset of the season';[213]

• history had shown to deviate from a proven structured plan so close to the onset of significant events was fraught with danger;[214] and

• some of the staff Ms Brunker put forward (as part of Option A) were not suitable for the tasks.[215]

• [177] Ms Brunker's evidence in cross-examination was that it was not too late to implement that change, it did not involve too much risk to split the teams as she had recommended to Mr West, and there were personnel who could implement that option.[216]

• [178] In fact, after further email correspondence between Ms Brunker and Mr West in early October 2018, in which Ms Brunker advised Mr West that the majority of affected staff had voted for Option A for the forthcoming disaster season (2018-2019),[217] Mr West, by email dated 11 October 2018, informed Ms Brunker that he was 'Happy to support what the majority want.'[218] Despite this, Mr West, for the reasons given above, did not approve Option A for the 2018-2019 season and he stated he advised Ms Brunker of this.[219] Yet, on Ms Brunker's evidence Mr West did not tell her of that decision until 30 October 2018 during the RED North workshop.[220]

• [179] On my assessment, this aspect of Mr West's response to Option A was reasonable management action. It was Mr West's decision as to when Option A may be implemented and his reasons for not implementing Option A for the 2018-2019 disaster season seem to be reasonable, despite the late notification of his final decision to Ms Brunker.

[A]ny "perception of lack of support from managers" was just that, and not the reality. Ms Brunker was repeatedly told to prioritise; was told it was fine to drop things off; had support available during the responses and was the manager of her team with the resultant reasonable expectation that she would manage her and their workload accordingly. Further, Ms Brunker was herself confirming her availability to undertake disaster work, even as late as February 2019. Management's response has to be considered in the context of all of the circumstances, including Ms Brunker's communications to Mr West. The fact that Ms Brunker decompensated or felt overwhelmed is not determinative of an unreasonable workload etc. Dr Bayley confirmed that her condition was capable of being based on her (mis-)perception.[221]

• [181] I do not find these submissions to be persuasive.

Ms Brunker was repeatedly told to prioritise and was told it was fine to drop things off

• [182] This submission is not meritorious for two reasons.

• [183] First, for the reasons I have given earlier in respect of the first and second stressors, Mr West did not undertake any management action in respect of Ms Brunker prioritising her work. At most Mr West, in his communications with Ms Brunker, was expressing his view that Ms Brunker exercise her own discretion about prioritising her work. This was not management action in respect of Mr West managing, directing or controlling how Ms Brunker must perform particular aspects of her work.

• [184] Secondly, also for the reasons I have given earlier, even if I am wrong and this amounted to management action, it is management action that was too remote to Ms Brunker's injury. The discretions Ms Brunker was to exercise about managing her own workload were too substantial, and therefore too remote, from any management action taken by Mr West.

Ms Brunker confirmed her availability to undertake disaster work and had support available during the disaster responses

• [185] These two matters can be considered together.

• [186] The Department's submission was that there was evidence that Ms Brunker communicated to Mr West that she was available to undertake disaster work.[222] There is evidence of that.[223]

• [187] Also, as the Department submits, there was evidence that, during the February 2019 floods that affected parts of North Queensland,[224] Ms Brunker did seek the assistance of other managers within the Department, namely, Mr Stephen Smith, her equivalent based in RED Central.[225] There also was the evidence of Mr Paul Walmsley, then Regional Director of RED Central, of that region assisting RED North during the February 2019 Townsville floods.[226]

• [188] However, on the facts of the present case, I do not find these submissions compelling.

• [189] The support that Ms Brunker was seeking from Mr West must be considered in light of all the circumstances known to him.

• [190] Leading to the 2018-2019 disaster season, Ms Brunker made direct requests to Mr West to provide specific human resource relief in respect of the performance of her (forthcoming) disaster management responsibilities and in respect of the performance of the ordinary duties of her position of Regional Manager.

• [191] Mr West's evidence was that he knew that Ms Brunker had a very high work ethic and that it was in her nature to take on tasks that were required to be taken on.[227] Yet, on the evidence I have referred to above, Mr West knew that Ms Brunker was having health issues to the extent that, on his own evidence, he was monitoring her health, at least up to Mr Holden's transfer.

• [192] Mr West also appreciated, from advice he received from other managers, that Ms Brunker was overwhelmed, had a full agenda and was struggling in relation to her workload.

• [193] By his email to Ms Brunker sent on 22 January 2019 (referred to in paragraph [79]), Mr West stated that he was clearly aware of the workload implications of not having a full complement of staff due to Mr Holden's absence. Given Ms Brunker's position as Manager, that her work location was in Mareeba and that there were no other employees in Mareeba to assist her (other than Mr Holden who did assist with disaster responses) Mr West's awareness (of the implications of not having a full complement of staff) could only have been that it was Ms Brunker who would be negatively impacted.

• [194] While I appreciate that the decision not to backfill Mr Holden's position was not a decision of Mr West, it was nevertheless a management decision. Similarly, the decision not to employ a Senior Project Officer as sought by Ms Brunker, while not Mr West's decision, was a management decision.

• [195] The assistance Ms Brunker was seeking was that beyond or in addition to that which would ordinarily have been made available to her, such as the ability to take leave, to take a break or to obtain support from existing employees in her region or in another region.

• [196] During the 2018-2019 disaster season, the only person that was available to perform disaster response duties in Mareeba (apart from the assistance provided by Mr Holden) was Ms Brunker. In terms of the performance of Ms Brunker's ordinary duties, Mr Holden's position was not even filled for part of the time of his temporary appointment. There is no evidence another officer was engaged or 'seconded', even on a temporary basis, to assist Ms Brunker before, during or just after the 2018-2019 disaster season. Ms Brunker was never relieved, even temporarily, of any part of her disaster response duties other than when she was on leave.

• [197] In my assessment, this was not reasonable management action. This is particularly the case in circumstances where Mr West knew that Ms Brunker had a strong work ethic and would continue to take on the responsibilities and duties given to her, yet, he was aware of the health issues she was having connected with her workload.

• [198] Mr West's principal response to the human resourcing issues raised by Ms Brunker, in respect of the workload that she potentially faced, and did face, in the 2018-2019 disaster season, was to communicate to her his expectations of how she should prioritise and delegate her work.

• [199] This issue is demonstrated in the following evidence given by Mr West in cross‑examination:

What did you do to I suppose help Alison through this period? I'm not here talking about what you might have done externally. What did you do, particularly do, with respect to her, your involvement with her, not with others. We're not - you know, it's not good duckshoving things off to other people. What did you do? You don't seem to want to answer my question. Did you do nothing, Mr West?---Well, the answer is no, but I guess my - outside of the management framework, which we've now covered a couple of times, I guess - and, again, it's evidential base, but I had contacted Alison, we had been in touch a number of times with a view - which she openly acknowledged - her work ethos, her high professional standards, etcetera, etcetera and the need for her to balance a strong - take a stronger balance in being able to prioritise, seek assistance and get a better work/life balance. They were conversations that we had fairly regularly.

All right so all you had - - - ?---And there are email exchanges to support that.

- - - conversations with her saying, "Look, you need to prioritise. You need to get a better work/life balance. That's what you need to do"; correct?---And potentially use better the resources that are around you. That was the remainder - excluding Peter's absence, the remainder of her existing team and some of the broader capacity that existed in RED North. The other thing that I did was regularly reaffirm with Alison - Ali had an approach where - I don't know why, but she would often talk to my executive assistant project support officer. She would often go to colleagues like Paula or to Phil Hales in Cairns to seek advice, you know, soundboard things, etcetera, etcetera. I consistently reiterated with Alison I welcomed her interaction and, as I have done with all my staff, have an open door policy and actively encouraged Alison to contact me directly where she thought things were becoming unrealistic.[228]

• an additional support person to assist her with her disaster management responsibilities;

• to be relieved of some of her disaster response duties; and

• on two occasions, that Mr Holden's position be backfilled because of the effect it was having on the performance of her own duties.

• [201] Leaving aside the decision not to implement Ms Brunker's Option A proposal for the 2018-2019 disaster season, the failure, in any meaningful or practical way, to implement any of these other requests made by Ms Brunker to reduce or relieve her workload, amounted to unreasonable management action.

• [202] The failure to meaningfully deal with such requests for support may, in ordinary circumstances, amount to reasonable management action. However, in the circumstances of this case, the management action in response to such requests became unreasonable due to Mr West's knowledge that Ms Brunker was prone to take on duties, his knowledge about Ms Brunker's health issues and his knowledge that she was overwhelmed, had a full agenda and was struggling in relation to her workload. These matters persuade me that this management action was not reasonable.

• [203] On Dr Bayley's evidence, there was a causal connection between that management action and Ms Brunker's injury.

• [204] For the reasons I have given, there was, in reality, a lack of support from Ms Brunker's management which was not reasonable management action.

• [205] Further, for all the reasons I have given above in relation to the first, second and third stressors, Ms Brunker's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment within the meaning of s 32(5)(a) of the Act.

Did Ms Brunker's injury arise out of, or in the course of, her expectation or perception of reasonable management action being taken against her?

• [206] Section 32(5)(b) of the Act has operation:

• when a psychiatric or psychological disorder arises out of, or in the course of, the worker's expectation or perception of reasonable management action where the management action is being taken against the worker;[229] and

• in respect of the worker's perception of action actually taken against the worker.[230]

• [207] Even if the elements in s 32(5)(a) of the Act are not made out, but the psychiatric or psychological disorder arises out of, or in the course of, the worker's expectation or perception of reasonable management action being taken against the worker, then the disorder is withdrawn from being an injury.[231]

1. In the alternative, s.32(5)(b) applies. Ms Brunker's workload expected by management was imposed on her by her manager, so in that sense was "taken against her". That workload was, for the reasons above, reasonable, and it was her misperception of what was expected that caused her injury

• [209] The Regulator submits that no management action was taken against Ms Brunker within the meaning of s 32(5)(b) of the Act.[232]

• [211] There is no evidence of any management action being taken 'against' Ms Brunker, such that s 32(5)(b) of the Act may be enlivened.

• s 32(5)(a) of the Act does not apply to Ms Brunker's injury; and

• s 32(5)(b) of the Act does not apply to Ms Brunker's injury.

• [213] The review decision of the Regulator will be confirmed.

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 the review decision of the Respondent, contained in the Respondent's letter to the Appellant dated 22 February 2022, (reference 57584) is confirmed; and

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

(a) the parties are to file and exchange written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 13 March 2024; and

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

[1] The Amended Statement of Facts and Contentions of the State of Queensland through the Department of Agriculture and Fisheries filed on 29 November 2021 ('the Department's contentions'), para. 2 and the Amended Statement of Facts and Contentions of the Workers' Compensation Regulator filed on 7 December 2021 ('the Regulator's contentions'), para 3.

[2] Exhibit 2, page 18 of the Hearing Bundle ('HB') and T 1-11, ll 34-37. The HB was prepared and handed up by the Department and was not an agreed bundle.

[5] The written submissions of the State of Queensland through the Department of Agriculture and Fisheries filed on 28 March 2023 ('the Department's submissions'), paras. 20(a) and 133(b) and (d).

[6] The Department's submissions, paras. 20(c) and 133(a).

[7] The Department's submissions, paras. 20(b) and 133(c) and (d).

[10] The written submissions of the Workers' Compensation Regulator filed on 21 February 2023 ('the Regulator's submissions'), paras. 93-97.

[11] T 5-6, l5 to T 5-7, l 8 and the Regulator's submissions, paras. 99-110.

[12] The Department's contentions, para. 63 a. and the Regulator's contentions, para. 38(a).

[13] The Department's contentions, para. 63 b. and the Regulator's contentions, para. 38(b).

[14] Exhibit 54, page 390 of the HB, para. 2.

[15] The Department's contentions, para. 63 b. and the Regulator's contentions, para. 38(c).

[16] The Department's contentions, para. 63 c. and the Regulator's contentions, para. 38(d).

[19] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461, [24]-[27] (Martin J, President).

[21] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall)

[22] T 1-14, ll 43 to T 1-15, l 46 (Mr West) and T 2-38, l 37 to T 2-39, l 14 (Ms Brunker).

[23] Exhibit 4, pages 79-202 of the HB and T 1-17, ll 36 to 44 (Mr West) and T 2-36, l 42 to T 2-37, l 5.

[24] T 1-24, ll 7-12 and T 2-13, ll 35-36 (Mr West) and T 2-34, ll 26-30 (Ms Brunker).

[30] T 1-11, ll 5-8 and Exhibit 2, page 18 of the HB.

[34] T 2-36, ll 21-22 (Ms Brunker) and T 1-14, ll 15-41 (Mr West).

[35] T 2-34, ll 25-30 (Ms Brunker) and T 1-24, ll 5-8 (Mr West).

[39] T 1-13, l 19 to T 1-14, l 6 (Mr West) and T 2-69, l 15 to 2-71, l 8 and T 2-72, l 38 to T 2-73, l 11(Ms Brunker).

[40] The Regulator's contentions, paras. 2(d) and 4.

[41] Exhibit 8, pages 28- 32 of the HB.

[44] 'Business Continuity Plan' - Exhibit 4, page 101 of the HB.

[46] Exhibit 4, page 80 of the HB and T 2-37, ll 7-14.

[56] Exhibit 4, page 185 of the HB and T 1-19, ll 29-40.

[57] T 1-19, ll 24-27 and T 2-79, ll 14-20.

[59] The Department's submissions, para. 20(a).

[61] Avis v Workcover Queensland [2000] QIC 67; (2000) 165 QGIG 788, (788) (President Hall).

[62] Ivey v Workcover Queensland [1999] QIC 65; (1999) 162 QGIG 392, (392) (President Hall).

[63] Versace v Braun [2005] QIC 18; (2005) QGIG 315, 316 (President Hall) and Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95, 95 (President Hall).

[64] Read v Workers' Compensation Regulator [2017] QIRC 072, [8]-[10], Allwood v Workers' Compensation Regulator [2017] QIRC 088, [58]-[68], Haack v Workers' Compensation Regulator [2017] QIRC 115, [44]‑[46] and Gilmour v Workers' Compensation Regulator [2019] QIRC 022, [78]-[79].

[65] [2020] QIRC 097 ('DAF').

[67] T 1-10, l 32 (Mr West) and Exhibit 2, page 18 of the HB.

[68] T 1-10, ll 30-33 and Exhibit 2, page 18 of the HB.

[69] T 1-9, ll 19-20 and Exhibit 2, page 18 of the HB.

[72] T 2-35, ll 7-36 and T 2-43, ll 17-22, and T 2-51, ll 19-36 in relation to the delegation of her tasks to Mr Holden.

[74] The Department's submissions, paras. 125-126.

[75] The Department's submissions, para. 127.

[76] The Department's submissions, para. 128.

[77] The Department's submissions, para. 129.

[78] The Department's submissions, para. 133(b).

[79] Exhibit 9, page 14 of the HB and T 1-28, l 37 to T 1-29, l 1.

[81] T 1-29, ll 4-39, T 1-71, ll 38-48 and T 1-72, ll 20-28.

[88] WorkCover Queensland v Curragh Mining Pty Ltd [2002] ICQ 59; (2003) 172 QGIG 6, 7 (President Hall) Simon Blackwood (Worker's Compensation Regulator) v Mahaffey [2016] ICQ 10, [54] (Martin J, President) and DAF (n 65) , [42].

[89] [2003] ICQ 49; (2003) 174 QGIG 824 ('RACQ').

[91] T 3-59, l 36 to T 3-60, l 40 and Exhibit 15, pages 19-20 of the HB.

[94] Schedule 4 to the Public Service Act 2008 defined 'second', namely:

second, a public service officer, means temporarily employ the officer:

(a) on different duties at the same classification level; or

(b) at a higher classification level or lower classification level.

[95] T 3-60, ll 12-22 and Exhibit 15, pages 19 and 20 of the HB.

[97] The Department's submissions, para. 57, citing Exhibit 16, page 21 of the HB.

[98] Exhibit 16, page 21 of the HB and Exhibit 48.

[109] Exhibit 19, page 2-3 of the HB and T 1-43, ll 1-45.

[113] Exhibit 21, pages 207-208 of the HB.

[126] Footnote 83 of the Department's submissions, which cites T 1-70, ll 7 to11.

[130] The Department's submissions, footnote 75, T 1-41, ll 35 to 48.

[131] The Department's submissions, footnote 75, T 1-64, ll 31-44, T 1-65, ll 9-16, T 1-69, ll 40-45 and T 2-8, ll 19-31.

[136] The Department's submissions, paras. 20(c) and 133(a).

[137] The Department's submissions, para. 92.

[138] The Department's submissions, para. 133(a).

[142] The Department's submissions, para. 20(c).

[143] The Department's submissions, para. 34.

[144] The Department's submissions, para. 35.

[145] T 1-29, ll 20-26 and T 1-71, ll 38-48.

[146] T 1-59, ll 4-23 and Exhibit 29, page 53 of the HB.

[148] Exhibit 13, pages 62-67 of the HB.

[149] Exhibit 9, page 10-17 of the HB.

[150] Exhibit 8, pages 27-37 of the HB.

[151] T 1-31, l 37 to T 1-32, l 14 and T 1-32, ll 30-34.

[152] The Department's submissions, footnote 27.

[154] The Department's submissions, footnote 27.

[156] The Department's submissions, para. 52(a).

[157] The Department's submissions, para. 35.

[158] The Department's submissions, footnote 31.

[159] Exhibit 7, page 9 of the HB, T 1-14, ll 18-20, T 1-17, ll 12-17, and T 1-22, ll 3-24.

[160] The Department's submissions, para. 133(c)-(d).

[161] T 2-39, ll 20-25 and Exhibit 54, page 390 of the HB.

[163] T 2-39, l 27 to T 2-40, l 2 and Exhibit 54, page 390 of the HB.

[166] Exhibit 11, pages 24-26 of the HB.

[169] See for example, Option A as proposed by Ms Brunker, Exhibit 11, page 24 of the HB.

[174] T 1-62, l 26 to T 1-63, l 30. Emphasis added.

[175] Exhibit 17, pages 38-52 of the HB.

[183] T 1-48, ll 46-48 and Exhibit 28, page 285 of the HB.

[184] T 1-49, ll 6-12 and Exhibit 28, page 285 of the HB.

[185] T 2-55, ll 15-24 and Exhibit 35.

[186] T 2-56, ll 22-37 and Exhibit 35.

[190] Exhibit 21, page 208 of the HB and T 2-58, ll 37-40.

[204] The Department's submissions, para. 88.

[205] Exhibit 26, pages 296-298 of the HB. In fact, 20 July 2018 was taken as public holiday leave.

[209] DAF (n 65). Citations omitted.

[210] The Department's submissions, para. 20(b).

[221] The Department's submissions, para. 133(d).

[222] The Department's submissions, para. 133(d).

[223] See for example, Ms Brunker's email to Mr West sent on 10 October 2018, Exhibit 22, page 55 of the HB and Exhibit 25, page 279 of the HB.

[225] T 3-16, l 42 to T 3-17, l 28 and Exhibits 41 and 42, pages 213-214 of the HB.

[229] Wyllie v Q-COMP [2009] ICQ 9; (2009) 190 QGIG 233, 235 (President Hall) ('Wyllie').

[230] Misevski v Q-COMP [2009] ICQ 2, [30] (President Hall).

[232] The Regulator's submissions, paras. 87-89.