Australasian Lubricants Manufacturing Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) and Harvey
[2015] QIRC 80
•8 May 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Australasian Lubricants Manufacturing Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) and Harvey [2015] QIRC 80 |
PARTIES: | Australasian Lubricants Manufacturing Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) and Harvey, Martin |
CASE NO: | WC/2013/348 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 8 May 2015 |
HEARING DATES: | 6 to 9 May 2014 28 January 2015 (Second Respondent's submissions) 26 February 2015 (Appellant's submissions in reply) |
MEMBER: | Industrial Commissioner Thompson |
| ORDERS: | 1. The Appeal is upheld. 2. The decision of Simon Blackwood (Workers' Compensation Regulator) of 17 October 2013 is set aside with the claim not being one for compensation. 3. The Appellant is entitled to costs of and incidental to this Appeal. The parties are directed to confer on the matter of costs and failing agreement, to be subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ decision of Simon Blackwood (Workers' Compensation Regulator) ‑ Appellant bears onus of proof ‑ standard of proof ‑ balance of probabilities ‑ witness evidence ‑ witness credibility ‑ worker sustained a personal injury in the form of a psychiatric injury ‑ the personal injury arose out of, or in the course of, his employment and the employment was a significant contributing factor to the injury - reasonable management action taken in a reasonable way - Appeal upheld - decision of Simon Blackwood (Workers' Compensation Regulator) set aside with claim not being one for compensation - Appellant entitled to costs of and incidental to this Appeal. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 550 Davidson v Griffith Muir's Pty Ltd [2010] FWA 4342 Rebecca Jones v Brite Services [2013] FWC 3392 |
| APPEARANCES: | Mr A. Ross of Sparke Helmore Lawyers for the Appellant. Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the First Respondent. Mr M. Henry, Counsel instructed by Hall Payne Lawyers, for the Second Respondent. |
Decision
Australasian Lubricants Manufacturing Company Pty Ltd (the Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q‑COMP Review Unit (Q‑COMP) released on 17 October 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q‑COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation from Martin Harvey (Harvey) and substitute a new decision to accept the application in accordance with s 32(5) of the Act.
On 4 November 2013 Vice President Linnane issued an Order that the worker (Harvey) be a party to the Appeal.
Relevant Legislation
The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2)However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances ‑
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the worker's application for compensation."
Note: This section of the Act was amended effective on 29 October 2013 with this matter determined subject to the legislation prior to the amendment.
Nature of Appeal
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by six witnesses.
The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
The witnesses for the Appellant were:
· Trevor Greenaway (Greenaway);
· Craig Dietzsch (Dietzsch);
· Dr Mohamed Milad (Dr Milad); and
· Dr Peter Bradley (Dr Bradley).
The witnesses for the Worker:
· Harvey; and
· Tracey Harvey (Tracey Harvey).
Appellant
Greenaway
Greenaway, the Human Resources Manager for the Appellant since March 2011, holds a Commerce Degree and Graduate Diploma in Psychological Studies. When he commenced this employment Harvey was already in employment as Plant Manager. Harvey had no reporting obligations to Greenaway reporting directly to Dietzsch.
In March 2013 Harvey took long service leave and according to Greenaway was "forced" to return to work on 8 July 2013. Upon his return he worked for a couple of days and then had a couple of day's absence due to sickness. Harvey returned to work (again) on 15 July 2013 and on the following day Phil Murtagh (Murtagh) contacted Greenaway with concerns after having witnessed Harvey going on a "bit of a tirade" regarding work not completed in his absence and of overhearing raised voices and, in particular, Harvey using a number of expletives directed towards subordinate employees. Murtagh who had acted as Plant Manager in Harvey's absence whilst on long service leave was concerned the behaviour was not in keeping with the Code of Conduct nor was it the behaviour expected from a leader in the business.
Greenaway raised the issue with Dietzsch who undertook to further investigate the matter and let him know what was going on. On 17 July 2013 Dietzsch reported he had spoken to a number of people and was going to meet with Harvey at 1.00 pm that day and wanted Greenaway to attend as he had concerns about Harvey's wellbeing as he had appeared "quite emotional".
On his attendance at the meeting he had taken no notes nor did he plan to record the meeting. Harvey in his presence (at the meeting) had not requested a support person be available or informed him of his intention to record the meeting. Harvey from Greenaway's own knowledge had been trained in workplace investigations in July 2012 where it was made known that if there were serious concerns about the conduct of an employee there was a need for that employee to have a support person present.
Greenaway understood the purpose of the meeting was to provide Harvey with some internal feedback from Dietzsch's various discussions in the Plant and further would Harvey be amenable to taking some personal leave "to put some distance between himself and the plant" as it appeared he had some personal issues that were affecting his work at the Plant. Subsequent to the meeting he became aware of Harvey having broken down earlier in the day and having become "teary" in the office earlier that day. Harvey at the meeting appeared quite subdued and at the conclusion of the meeting Harvey agreed to take some personal leave. In an effort to protect Harvey's integrity as Plant Manager he was to inform staff the leave was due to the unwellness of his father.
At the time of the meeting there were no formal allegations levelled against Harvey in relation to the activities of the previous days and Greenaway had not considered whether the Disciplinary Standard had any application even though he had raised Murtagh's concerns (relating to Harvey on 15 and 16 July 2013) with Dietzsch. At the meeting Harvey became quite concerned about his employment at which time Greenaway sought to defuse his concerns. Harvey at the time mentioned his mother and father's illnesses and an aunty who was dying, also being quite apologetic in respect of possibly having offended staff on the previous two days.
The meeting went for about 45 minutes and in the days subsequent to the meeting he interviewed a number of people with regards to the allegations. A number of individuals were interviewed after which he formed a "statement of allegations". Contact was made with Harvey on the Tuesday afternoon where he was invited to come and view the document and to answer some allegations gleaned from the investigation. Harvey informed him there was no point in him coming in because he was not going to answer any questions anyway and he had Greenaway email the document to him.
The document [Exhibit 3] dated 23 July 2013 emailed to Harvey contained the following allegations which were to be investigated by Greenaway:
"1. Not displaying an appropriate image of professionalism at ALMC on;
a.Monday 15th July at a Engineering meeting in the Lytton Facility meeting room at 1pm in the presence of Phil Murtagh, Stephen Hunter, Ron Crimlis, Aaron Dighton, Graeme Brigg, Peter Frangleton, Rick Burnett, Philip Harley you said;
i.that you don't care about the budget and that the budgeting process in this company is 'fucked'.
ii.that there is no point saving with regards to the budget as the company takes the money off you in the next year,
iii.that you had saved money in previous years, and other sites didn't, they got a bonus and we didn't, and
iv.that we are going to fix what I want to fix.
4. Engaging in conduct which may cause any reasonable person unwarranted offence or embarrassment, acting in a aggressive manner towards others and using offensive language on;
a.Tuesday 16th July at a meeting in the Plant Manager's office at approximately 8.30am with Darran Walding you told Darran;
i.that he needed to step up and make 'those pricks' out there do their jobs,
ii.that he needed to make a marked improvement on the state of the filling hall and 'if you can't fucking do it then I'll find someone who can', and
iii.that 'now I am back I don't give a shit who I upset or who takes me across to Craig or Trevor. I don't give a fuck. I'm going to get things done'.
b.Tuesday 16th July at a huddle meeting in the Plant Manager's office at 9am in the presence of Phil Murtagh and Aaron Dighton you;
i.said that operators and lab staff were treating you 'like a fuckwit' in relation to the operation of the plant pager system,
ii.said to Aaron Dighton 'Thanks for treating me like a fuckwit' in relation to the operation of the plant pager system, and
iii.repeatedly used offensive language in an angry and aggressive manner."
Harvey was informed in the correspondence whilst the Appellant had made no assumptions about the accuracy of the allegations he was being directed not to attend work from 18 July 2013 pending an investigation into the allegations. Harvey was to continue to receive his usual remuneration whilst away from work. In accordance with the Disciplinary Standard he was invited to respond in writing to the allegations by no later than 29 July 2013. If the allegations were founded the Appellant may take disciplinary action against him that may include the termination of his employment.
Greenaway first became aware the meeting of 17 July 2013 had been recorded by Harvey when the Appellant decided to appeal the Q‑COMP decision to overturn WorkCover.
Note: At this stage of the evidence‑in‑chief a recording of the meeting of 17 July 2013 covertly recorded by Harvey was played in the proceedings. At the conclusion of the recording a number of matters were put into evidence by Greenaway.
Greenaway's evidence was:
· recording was consistent with his memory of what took place;
· there did not appear to be any overt or obvious breaks in transcript; and
· the content confirmed his verbal evidence given earlier in the proceedings.
After Harvey had been provided with the allegations a response was received from Lawyers acting on his behalf (dated 26 July 2013) requesting an extension of time for a response to the allegations which the Appellant granted. A day or two following the receipt of the letter from Harvey's lawyers a Workers' Compensation Medical Certificate was forwarded from Harvey in which Dr Bradley, a General Practitioner, had stated:
"The workers stated cause of injury: Called into supervisor's office on the above date and advised, with no prior warning he was suspended pending his response to a series of allegations which he feels are unfounded". [dated 26 July 2013]
The certificate stated he was not capable for any type of work from 17 July 2013 until 16 August 2013.
Greenaway gave evidence of Harvey severing his employment relationship with the Appellant in November 2013 by way of a resignation.
At the meeting on 17 July 2013 at no time did Harvey request that a lawyer be present. The Disciplinary Standard policy had no application at that meeting and Greenaway, at that time, had not determined if there was any breach of the Code of Conduct.
In a question from the Bench with regards to the Disciplinary Standards being enlivened at the meeting on 17 July 2013, Greenaway did not accept that there were any specifics mentioned.
Greenaway's evidence‑in‑chief concluded with reference to his recording interviews with staff members only occurring if the matter of recording had been openly discussed with the other party.
Cross‑Examination
Second Respondent
Under cross‑examination, Greenaway acknowledged that prior to the meeting of 17 July 2013 he had discussed with Dietzsch the proposition of affording Harvey personal leave however there was no discussion about standing him down if he refused to take personal leave [Transcript p. 1‑62]. On Harvey's role in the business since becoming employed in 2006 he stated "I think it would be fair to say he's had a fairly good run with ‑ with some blips on the way probably like ‑ like a number of employees" [Transcript p. 1‑62]. The Appellant had developed procedures and systems under which they assessed performance in a particular role described by Greenaway as a "calibration process" [Transcript p. 1‑64]. Greenaway's role encompassed the development of policies and procedures to ensure that psychiatric and psychological injuries do not occur in the workplace as a result of management action [Transcript p. 1‑65]. On the matter of the use of language in the Plant area, Greenaway recalled an incident in which he had some involvement where it was more the aggressive nature of delivery rather than the language itself [Transcript p. 1‑66]. That type of language it was accepted whilst unwelcomed in Head Office was not such an issue in the Plant [Transcript p. 1‑67].
Harvey in his seven plus years with the Appellant, to Greenaway's knowledge, had no disciplinary history [Transcript p. 1‑67]. On the development of the Disciplinary Standards he had not sought legal advice but accepted he was aware of his obligations to ameliorate the risk of prejudice to a person or otherwise risk injuring them when developing of the policy [Transcript p. 1‑67]. All employees were reminded on an annual basis of their obligations to understand the Appellant's standards and policies [Transcript p. 1‑68]. Greenaway accepted the proposition that the effect of the Disciplinary Standard in respect of counselling is a distinct process from other activities such as coaching, performance reviews or performance management [Transcript p. 1‑70].
For matters where an investigation is commenced or conducted into an alleged breach in the Disciplinary Standard and the breach is of a serious nature an employee could be directed not to attend the workplace [Transcript p. 1‑71]. Dependent on the circumstances another option may be to let the employee continue their role and advised on what behaviour should cease [Transcript p. 1‑72]. With regards to the letter sent to Harvey on 23 July 2013 directing him not to attend work from 18 July 2013 in retrospect it was Greenaway's evidence the direction should have applied from 23 July 2013 [Transcript p. 1‑74]. Greenaway confirmed that at no time was there ever a formal complaint made against Harvey although the company had an option to investigate matters of health and safety without a formal complaint [Transcript p. 1‑75]. In Greenaway's time with the Appellant he could only recall two occasions where pending determination of an investigation which related to issues concerning the distribution of hard‑core pornography around the workplace and two operators involved in a non‑physical altercation, that employees were stopped from attending the workplace [Transcript p. 1‑79].
In terms of Harvey there were two allegations levelled against him in that he engaged in conduct which may cause a reasonable person unwarranted offence or embarrassment and that he had not displayed an appropriate image of professionalism [Transcript p. 1‑79]. On 18 July 2013 he had spoken to Murtagh, Aaron Dighton (Dighton) and Darren Walding (Walding) who gave their accounts of Harvey's behaviour. Statements were taken from each of them although they were never required to sign the statements and they were never provided to Harvey [Transcript p. 1‑80]. With consent of the three employees he recorded their conversation and it was his evidence that copies of the conversations were never disclosed to Harvey [Transcript p. 1‑84].
Greenaway was critical of Harvey's criticisms of senior management in an open forum with a number of people rather than his use of the expletive "fucked" when describing a process in the company [Transcript p. 1‑87]. Walding had indicated he had taken offence by Harvey's comments which he felt were a threat to his position [Transcript p. 1‑87]. Harvey's conduct in general was not the appropriate leadership behaviour espoused by the company [Transcript p. 1‑88]. He had shown disrespect to 83 operators in the company through the comments attributed to him as well as "lab" staff [Transcript p. 1‑88]. The delivery of comments by Harvey that the operational "lab" staff were treating him like a fuckwit had been, according to Dighton, made in an aggressive way [Transcript p. 1‑89]. Greenaway did not accept that when the meeting was held with Harvey on 17 July 2013 that he was in possession of information that could have justified Harvey's employment being terminated [Transcript p. 1‑90].
In granting lawyers acting for Harvey an extension of time to respond to his correspondence of 23 July 2013 Greenaway had done so on the proviso that neither Harvey nor his representative contact the Appellant's employees. The intent of the proviso was to protect the integrity of the investigation interview [Transcript p. 2‑7]. Greenaway reiterated his view that the meeting of 17 July 2013 was a discussion and not a disciplinary meeting [Transcript p. 2‑10]. Greenaway had been of the view that at the 17 July 2013 meeting Harvey wanted to know if he had offended anybody and it sounded like he wanted some feedback [Transcript p. 2‑11]. Since Harvey's departure a meritorious selection process had occurred with Murtagh now occupying the position of Plant Manager [Transcript p. 2‑14].
As Plant Manager one of Harvey's key performance indicators related to workplace health and safety with the workplace culture being for incident free operations. The workplace due to the nature of the business has the potential for accidents and environmental disasters to occur but according to Greenaway it was not a "major hazardous facility" [Transcript p. 2‑15].
First Respondent
Greenaway accepted the specifics of Harvey's behaviour given to him on 16 July 2013 by Murtagh were no different to what formed the 23 July 2013 allegation with regards to the engineering meeting [Transcript p. 2‑27]. Greenaway accepted there were allegations that arose from Murtagh's exchange with him prior to 17 July 2013 that were serious enough for him to request Dietzsch make some informal investigations [Transcript p. 2‑29]. Dietzsch informed him prior to the 17 July 2013 meeting that he had spoken to a few employees on the Plant [Transcript p. 2‑29]. Greenaway recalled providing Dietzsch with information on 16 July 2013 around comments attributed to Harvey by Murtagh particularly around budgeting processes [Transcript p. 2‑29].
Prior to the meeting with Harvey on advice from Greenaway a conference call was arranged with the CEO of the Appellant business where in the company of Dietzsch a summary was given with regards to Dietzsch's conversations about Harvey's behaviour and concerns about his performance in the workplace, providing a level of specifics [Transcript p. 2‑34]. The CEO was informed of two staff who had expressed intentions of not sticking around if Harvey continued to behave in that manner. The option of personal paid leave was also discussed as was the option for him to remain in the workplace [Transcript p. 2‑37]. At the meeting later that day the option of staying in the workplace was not pursued [Transcript p. 2‑38]. Greenaway conceded that the position prior to the meeting of 17 July 2013 was in general terms what Murtagh had told him about Harvey's behaviour and had been corroborated by Dighton [Transcript p. 2‑43]. The primary purpose of that meeting was to find out where Harvey's "head was at and how he was feeling because that was the primary purpose of the meeting. It was not to commence an informal investigation [Transcript p. 2‑43].
On the option of Harvey taking personal leave following the 17 July 2013 meeting, it was Greenaway's evidence had he not taken up that option he would have been allowed to return to work until there was more specific allegations that could be put to him [Transcript p. 2‑45]. It was accepted that in the meeting Dietzsch had outlined Harvey's behavioural issues and performance in the workplace which dealt with his conduct as a Plant Manager [Transcript p. 2‑45]. It was also accepted that in the course of the meeting Dietzsch had said Harvey's conduct was damaging the business [Transcript p. 2‑46] and that at the end of the meeting it was outlined to Harvey that an investigation into the allegations would be undertaken [Transcript p. 2‑50]. Greenaway refused to accept the meeting was the start of the disciplinary process [Transcript p. 2‑50].
The start of the investigation into the allegations only started when Greenaway sat down with someone and talked about specifics which could then be put to an individual [Transcript p. 2‑51]. Whilst there were no written specific allegations that could have been given to Harvey at the meeting, Greenaway conceded he did have the specific oral allegations from Murtagh [Transcript p. 2‑52]. On hearing from Dietzsch after his information gathering prior to the meeting, Greenaway formed the view there was a problem with Harvey in the workplace that needed investigating [Transcript p. 2‑55].
Greenaway gave evidence regarding the persons interviewed in respect of forming allegation one against Harvey included Murtagh, Dighton, Ron Crimlis (Crimlis) and Stephen Hunter (Hunter) [Transcript p. 2‑55]. Greenaway had not interviewed Graeme Brigg (Brigg), Rick Burnett (Burnett) or Philip Harley (Harley) because he had not wanted to broaden the investigation any further and have to "basically drag" Harvey through more with other individuals [Transcript p. 2‑56]. Greenaway accepted it would have been prudent to have interviewed all persons to be sure the allegations could be drafted with a hundred per cent certainty [Transcript p. 2‑57].
In re‑examination Greenaway gave evidence around the telephone call with the company CEO on 17 July 2013 which lasted for 10 to 15 minutes and that the CEO had not been provided with any documentation prior to the call. At the time of the 17 July 2013 meeting he had not formed the view that Harvey's conduct was unacceptable but had wanted to speak to other individuals to determine whether something formally needed to be put to him. The Disciplinary Standard did not require the provision of statements to a person.
Dietzsch
Dietzsch is the Operational Manager for the Appellant with all Facility Managers reporting to him in that role with his job being to provide leadership on achieving operational targets in an incident‑free, safe environment with costs targets being third in the priority list. The business has around 250 employees with 200 employees in the operations area.
In July 2013 Harvey was Facility Manager at the Lytton Plant with close to 100 operators on site making his role the most senior of all Facility Managers. Harvey's remuneration was well above $130,000 per annum. Harvey's role including having the following groups reporting directly to him:
· engineering team;
· engineering co‑ordinators;
· production managers; and
· warehouse managers.
Prior to July 2013 Harvey had been absent on long service leave during which time Murtagh occupied his role. On his relations with Harvey they got on well and he seemed to respond well to coaching provided by him. His performance review of Harvey at the end of 2012 saw Harvey rated "4D out of 5E". In the period preceding the taking of long service leave by Harvey in July 2013 according to Dietzsch, he was not 100 per cent on the job and he had informed him of personal issues regarding his wife and how they had impacted on their relationship.
On his return Harvey was involved in a handover meeting with Murtagh and was introduced to the Total Production Maintenance (TPM) team where it was agreed Murtagh would continue to run the TPM teams while Harvey "got his feet under the desk". At the time Harvey appeared to be very energised, fit, healthy and motivated to return to work. Sometime around 17 July 2013 he was approached by an employee who advised of an altercation with Harvey telling him "If he stays I'm going to have to leave".
Dietzsch, in the lead up to the meeting of 17 July 2013, had discussions with others including Dighton who indicated concerns over Harvey's behaviour with some reports having Harvey breaking down in the office and crying. He initiated a discussion with Greenaway about having a "chat" with Harvey to find out what was going on as he was concerned the Appellant would end up with a bullying or stress claim. He mentioned to Greenaway they may need to give Harvey some "personal time off". He also decided to give the CEO John Warnock (Warnock) a "heads up" about what was happening in the Plant. In the phone conversation with Warnock, which lasted about five minutes, he indicated his support for the approach they were taking.
Prior to the meeting he has a one‑on‑one discussion with Harvey where he informed Harvey of concerns he held regarding reported interaction with his team and of the need to have a discussion involving Greenaway. Harvey was not told to bring a support person to the meeting as the meeting was not to be a performance discussion. At the time Harvey had "teared up" when describing the situation with his father's health.
At the meeting itself neither he nor Greenaway recorded the conversation as a value of the company was to have open and honest communications with staff and to record a conversation without another person's knowledge would be against those values. At around the time this matter was the subject of a conciliation conference the Appellant became aware for the first time that the meeting of 17 July 2013 had been recorded by Harvey which at the time did not sit well with Dietzsch and in hindsight he was disappointed because it was not fair and honest behaviour.
On a medical certificate [Exhibit 11] provided by Harvey the content was disputed by Dietzsch with regards to him being suspended without any prior warning at the 17 July 2013 meeting and of a series of allegations having been put to him at the meeting. The meeting was not a disciplinary discussion but an open and honest discussion with a senior manager who had significantly upset his team.
Note: At this stage of the evidence‑in‑chief a recording of the meeting of 17 July 2013 covertly recorded by Harvey was again played in the course of the proceedings.
Dietzsch disputed the content of a medical certificate provided by Harvey which suggested the cause of a stress condition related to the "threat of dismissal" emanating from the 17 July 2013 meeting. Again it was emphasised the purpose of the meeting was not about performance and for a period of time prior Dietzsch had been involved in coaching Harvey about leadership matters which was a process distinct from a disciplinary process.
Dietzsch was taken to a number of passages in the recorded meeting of 17 July 2013 giving evidence that Harvey:
· seemed very calm;
· was not agitated;
· was not upset by the discussion; and
· on five or six times offered an apology.
However in looking back knowing Harvey had recorded the meeting, Dietzsch did not believe what Harvey said in the meeting was an honest account. None of his comments around the issues of awareness of staff as a result of his behaviour made sense at the time although in hindsight with the meeting having been recorded, now made sense to him.
About a quarter of the way through that meeting he offered Harvey the opportunity to take some "personal paid leave" for compassionate reasons which would have benefited him and the employees who had been upset. The recording has Harvey agreeing to the personal leave option on the basis he tells people he is on personal leave.
The letter sent to Harvey on 23 July 2013 which set out allegations against Harvey had been a decision of Greenaway's following his investigation and was supported by Dietzsch. On the absence of reference to particular employees (said to have been upset by Harvey) on the 17 July 2013 recording it was Dietzsch's evidence names were not mentioned because it "wasn't a performance discussion"
Cross‑Examination
Second Respondent
Under cross‑examination Dietzsch gave evidence of his knowledge of workplace health and safety and of his obligations under legislation applicable to those functions [Transcript p. 3‑19]. He did not accept the business operated in a dangerous industry, had excellent controls in place in the event of a spill [Transcript p. 3‑20]. Costs were never an issue with regards to workplace health and safety practices [Transcript p. 3‑23]. Dietzsch accepted that since he commenced employment a number of staff members had departed the business including medium to long‑term employees in the management structure [Transcript pp. 3‑25 to 3‑27].
The nature of the Lytton Plant was heavily blue collar with robust language used on a daily basis [Transcript p. 3‑28] with the culture in the head office more respectful [Transcript p. 3‑29], In 2013 it was conceded that the business was over budget in certain operational areas [Transcript p. 3‑31]. Dietzsch denied at the time of Harvey's return from long service leave there were some serious safety issues emerging at the wharf with employees being required to work in unsafe conditions and that an amount of $100,000 was needed for repairs which he was not keen to spend [Transcript p. 3‑34]. At no point had Harvey put a proposal to him about that issue or the issue about valves or other matters on the wharf [Transcript p. 3‑35].
Whilst Harvey was on long service leave there was a serious oil spill (8,000 litres) that required a formal investigation. The cause of the problem was that on the installation of a new control system the previous wiring had not been taken out and disconnected [Transcript p. 3‑41]. On whether the Lytton Plant Manager's role was particularly stressful, Dietzsch stated:
"I think Martin [Harvey] had done the job for years and didn't strike me to be a person that was getting stressed about the day to day issues all the time and he certainly had plenty of help." [Transcript p. 3‑45]
In the four months prior to Harvey going on long service leave he had witnessed Harvey cry in his presence, confiding of concerns about his wife's health issues that were affecting his relationship with her [Transcript p. 3‑47]. Harvey in a performance review undertaken by Dietzsch in March 2012 was rated "4D" for the period January to December 2012 and he was really happy with Harvey's performance at that time [Transcript p. 3‑49].
Coaching activities which involved Harvey on occasions related to his interaction with subordinate employees however he had a lot of empathy for Harvey based on his personal circumstances and he was shown a lot of compassion [Transcript p. 3‑52].
Dietzsch acknowledged that Harvey had previously informed him that his wife had breast cancer that required an operation and he had passed that information on to his legal representatives [Transcript p. 3‑102]. He denied having sourced this information through his own enquiries [Transcript p. 3‑103].
In relation to the first allegation levelled against Harvey in the correspondence of 23 July 2013 it was Dietzsch's evidence he spoke to Murtagh and Dighton on 15 July 2013 making him fully aware that Harvey had not been displaying an appropriate image of professionalism, well in advance of the 17 July 2013 meeting [Transcript p. 3‑106]. On 15 July 2013 he also spoke to Walding and Crimlis and was given an account which went to the second allegation [Transcript p. 3‑107]. Prior to his attendance at the meeting of 17 July 2013 he gave evidence of having an "open mind" with regards to what was going on [Transcript p. 3‑109]. There was no presumption of guilt regarding the allegations [Transcript p. 3‑110]. Of the allegations it was the case Dietzsch had never dealt with Harvey about them as he had "lawyered up, went and had a stress claim before we could have discussions" [Transcript p. 3‑112].
Prior to 17 July 2013 he held no concerns that Harvey was not honest or open however in seeing the WorkCover certificate he believes that Harvey had made "fraudulent accusations" [Transcript p. 3‑113]. He was disappointed to hear from other employees about Harvey's behaviour which left people "trembling and upset" [Transcript p. 3‑113]. He was not concerned Harvey had disagreed with him on work matters but it should have been done in the right way [Transcript p. 3‑113].
On the morning of 17 July 2013 he met with Harvey and spoke to him about damaging relationships with his team but never spoke about him causing damage to the business [Transcript p. 3‑115]. He requested Harvey attend Greenaway's office at 1.00 pm which was agreed. In the discussion involving Warnock, Greenaway and himself before the meeting, Dietzsch accepted an option discussed was that Harvey would be stood down at the meeting and was a likely option but not a fait accompli [Transcript p. 3‑116]. At the meeting of 17 July 2013 he accepted that cost performance issues were discussed but health and safety were not really discussed [Transcript p. 3‑118]. Dietzsch denied his attitude hardened up about a third of the way through the interview and said he remained compassionate [Transcript p. 3‑120]. A range of questions were put to Dietzsch regarding the 17 July 2013 meeting which included references to:
· Harvey's father being unwell;
· upsetting people and putting them offside;
· discussion about other roles;
· personal leave;
· tough conversations in the future;
· safety issues not progressed in his absence; and
· agreement to concoct a story to cover Harvey's absence [Transcript pp. 3‑122 to 3‑128].
Dietzsch accepted he had told Harvey at the meeting on 17 July 2013 to give him a call if the whole process was "doing his head in" but had done so on the basis of Harvey being upset prior to the meeting [Transcript p. 3‑131].
First Respondent
Under cross‑examination, Dietzsch's evidence was that at 17 July 2013 Harvey had not been upfront with his mental health issues [Transcript p. 4‑15]. He had difficulty recalling his interaction with Greenaway about the correspondence sent to Harvey on 23 July 2013 but conceded he had given a verbal "okay" for the letter to go out [Transcript p. 4‑16]. The formal disciplinary action had commenced with the 23 July 2013 correspondence and the direction not to attend work. The matter became formal once Greenaway had conducted the investigation and he held the opinion that Harvey was fully aware of the process from his previous exposures as Plant Manager [Transcript p. 4‑22]. The discussion on 17 July 2013 was an informal process [Transcript p. 4‑24].
Dietzsch first became aware of issues regarding Harvey when Murtagh had passed on comments made by Harvey at an engineering meeting about budget and not "giving a fuck" [Transcript p. 4‑26]. Other persons had come to him unsolicited giving him feedback on Harvey's performance and how it was affecting them [Transcript p. 4‑27]. At the time he was acutely aware there was some "personal stuff" going on but Dietzsch was also focussed on erratic behaviour which had the potential to create a problem in the workplace [Transcript p. 4‑29].
Dietzsch had a conversation with Crimlis regarding Harvey's behaviour which had left Crimlis feeling bullied and worried about his job being threatened [Transcript p. 4‑33]. At the time of the discussion Crimlis was shaking, trembling and had tears in his eyes [Transcript p. 4‑34]. On Monday 15 July 2013 the only conversation he had regarding Harvey's behaviour was with Murtagh and Crimlis however he had further discussions on the following day with Dighton and Natasha Geddes (Geddes) [Transcript pp. 4‑36 to 4‑37]. In his exchange with Dighton words had been said by Dighton to the effect "What's going on with Mr Harvey" [Transcript p. 4‑43] but Dietzsch was unable to articulate some recollection of the inappropriate behaviour mentioned by Dighton [Transcript p. 4‑44].
After a series of conversations he formed the opinion that things were not right and at some stage conveyed some specific information to Greenaway about what he had heard which ultimately formed part of the allegations that were levelled against Harvey [Transcript p. 4‑50]. There was a discussion with Harvey and himself on the morning of 17 July 2013 which he had sought because of the reports about him crying in front of his team and to organise the meeting later in the day [Transcript p. 4‑52]. Dietzsch also had concerns about "potential performance stuff" [Transcript p. 4‑54].
Dietzsch conceded he went into the meeting of 17 July 2013 with a preference for Harvey to take personal leave to "create a little bit of separation and let the dust settle for ‑ for Martin and the team" [Transcript p. 4‑55]. Harvey appeared not to be upset throughout the meeting which Dietzsch found perplexing [Transcript p. 4‑55]. The discussion was not normal in that the previous interaction was gone, it was a cold discussion and we had a leader coming back into the organisation unaware he was upsetting people [Transcript p. 4‑59]. Dietzsch did not accept he had been critical of Harvey at the meeting and thought the meeting went smoothly and politely [Transcript p. 4‑59].
Dietzsch accepted he had gone into the meeting of 17 July 2013 with a number of quite serious allegations and that no specifics were provided to Harvey except that an employee had stated they would resign if the behaviour continues. Greenaway indicated after his investigation Harvey would be given some specifics [Transcript p. 4‑62]. Dietzsch had no expectations about the outcome of the meeting just the belief that Harvey would have an honest conversation with them. At the time he did not think that Harvey was being dishonest [Transcript p. 4‑63]. He agreed he had formed the view prior to the meeting there was a degree of truth around the issues raised by Harvey's co‑workers [Transcript p. 4‑64] but at the same time had an "absolute open mind" there may have some inaccuracies. He was also cognisant of the natural justice section in the Disciplinary Standard for consideration of mitigating circumstances [Transcript p. 4‑65].
Dietzsch was aware under the Disciplinary Standard there was a counselling process with had six steps to follow and was familiar with that process. In the course of the meeting he accepted he had outlined a potential problem without going into specifics [Transcript p. 4‑68]. Dietzsch refused to accept the first two steps of the Disciplinary Standards were followed [Transcript p. 4‑69]. There were not two applications of the disciplinary procedures with one for senior management and another for other employees [Transcript p. 4‑71]. Dietzsch indicated there was often an informal meeting before starting the official disciplinary process in which a support person would be offered [Transcript p. 4‑71]. The meeting of 17 July 2013 was in his opinion not a disciplinary meeting and did not warrant a support person being offered to Harvey [Transcript p. 4‑72]. Dietzsch considered the correspondence on 23 July 2013 was effectively the commencement of the show cause process.
In re‑examination Dietzsch confirmed that Harvey had the delegated authority to spend up to $50,000 for various work‑related activities and the safety issue on the wharf was actually remedied for around that amount.
Dr Milad
Dr Milad, a Psychiatrist with United Kingdom qualifications, had worked in Australia since 2003 and conducted a Specialist Medical Examination of Harvey on 2 December 2013 at the behest of WorkCover. The Report prepared by Dr Milad was tendered in the proceedings [Exhibit 6]. Dr Milad confirmed the content of the Report and indicated he had recently been contacted by the Regulator and provided with extra information relating to medical episodes involving Harvey in 2007 and 2009. The original past history only dealt with a matter some 20 years previous. The original history had been provided by Harvey at the time of the examination.
In terms of the 2009 episode, it was Dr Milad's understanding from the information that Harvey had presented to hospital in a very distressed state, citing stressors in his life at the time and maybe having been excessively drinking. Symptoms included:
· acute stress reaction;
· depressive symptoms;
· anxiety symptoms; and
· stress symptoms.
A further Report from Dr Milad [Exhibit 7] was tendered in the proceedings. This Report had been authored following receipt of further information including General Practitioner notes and material from Logan Hospital. Information provided to Dr Milad regarding his Second Report was in the form of an Adult Mental Health Services ‑ Consumer Assessment [Exhibit 8] issued by the Logan facility on 20 June 2009. Having read the history provided in the General Practitioners notes he found evidence of a 2007 consultation where Harvey presented for a stress reaction and anxiety but could find nothing to indicate he had received any psychiatric assistance.
On the content of his Second Report where Dr Milad opined that the 2013 condition presented by Harvey could be a relapse of a pre‑exiting injury, he made the following comments:
"…sometimes the word relapse maybe meant for those people who just recover but don't stay well and relapse again, or if ‑ it's a new episode, some people might not call that a relapse, just call that a new episode." [Transcript p. 3‑92]
In the First Report [Exhibit 6] in terms of DSM‑IV‑TR multi‑axial classification the diagnosis was at:
"Axis I was unclear whether he suffered from a Major Depressive Disorder and Generalised Anxiety Disorder or an Adjustment Disorder with anxious mood and depressive symptoms but most probably suffered a Major Depressive Disorder of moderate severity and Generalised Anxiety Disorder, moderate severity, after an initial acute stress disorder developed after 17 July 2013 due to management actions.
Axis IIPersonality Disorders ‑
Pre‑morbid personality of Obsessive compulsive.
Axis IIIGeneral Medical Conditions ‑
No medical illness causing his current stress.
Axis IVPsychosocial and Environmental Problems ‑
·Loss of his job;
·Work related stressors.
Axis V Global Assessment of Functioning (GAF) Scale ‑
GAF = 41‑50."
The Report noted that further information would be needed to rule out any tendency to develop mood disorder.
In the Second Report Dr Milad noted that the additional information provided gave no indication of Harvey being unwell or having received treatment in the early half of 2013 which indicated that the symptoms became prominent and worse after July 2013, precipitated by his reaction to the perceived stress from the suspension and investigation.
The condition he presented with in 2013 was of a similar nature (to a previous condition) and would be considered as an aggravation of pre‑existing condition or relapse of pre‑existing condition.
Cross‑Examination
Second Respondent
Under cross‑examination Dr Milad considered the 2013 injury as a new injury because of the effluxion of time, with the difference between the 2007 ‑ 2009 conditions and the 2013 condition being that the latter lasted longer [Transcript p. 3‑93]. There was a high probability that Harvey had an existing predisposition to have a psychiatric disorder under situations [Transcript p. 3‑94]. The "new" injury was precipitated or triggered by the incident which resulted in Harvey experiencing a lot of symptoms [Transcript p. 3‑95]. From the history provided it was Dr Milad's diagnosis that Harvey "developed a psychiatric disorder after the sequence of events that happened in July 2013" [Transcript p. 3‑96].
Dr Bradley
Dr Bradley, a General Practitioner, commenced treating Harvey on 2 July 2007. In the proceedings the following documents pertaining to Harvey were tendered:
· a workers' compensation medical certificate issued on 26 July 2013 which contained the following diagnosis:
"Acute stress as a result of workplace issue and threat of dismissal"; and
· patient notes relating to treatments provided to Harvey from 22 January 2013 to 5 August 2013 (inclusive).
Dr Bradley, at the consultation with Harvey on 26 July 2013, had not initially issued a workers' compensation medical certificate and later received a message from Harvey that he had obtained legal advice and wanted to make a claim under WorkCover.
Cross‑Examination
Second Respondent
Under cross‑examination Dr Bradley gave evidence that in the consultation with Harvey on 26 July 2013 the possibility of it being a WorkCover issue came up in the course of the conversation [Transcript p. 4‑10]. On Harvey's presentation he observed he was "devastated" [Transcript p. 4‑10]. Dr Bradley provided a referral for Harvey to see Brian Drury a Psychologist [Transcript p. 4‑13].
Second Respondent
Harvey
Harvey was currently unemployed with his last employment being with the Appellant business and which ceased on 8 November 2013. He was at the time of hearing in receipt of workers' compensation benefits.
As the Plant Manager at the Lytton facility he had approximately 120 personnel and contractors that reported directly to him. His performance to his knowledge was of a very high standard with his 2012 performance review attracting a "4D" rating which was above average and had him meeting all of the objectives and consistently surpassing expectations. He was an enthusiastic team member who demonstrated well‑developed leadership qualities in all areas. In March 2013 he received a before tax bonus payment of $10,746.
At 17 July 2013 (and immediately prior) his supervisor was Dietzsch who was located in a separate National Office situated some 300 metres from the Lytton Plant. Harvey gave evidence that since the arrival of Dietzsch at the business there were a number of senior management that had departed the business including some who exited after Harvey tendered his resignation in November 2013.
Harvey's understanding of Dietzsch's role was that he had an overarching responsibility (as all managers had) to ensure safety was the focus but he also had a very high focus of financial cost control. Dietzsch spent most of his time interstate but there were times when he was at the Lytton Plant as well as his office located close by. The business measured cost performance on the basis of cents per litre with Dietzsch's role to measure the costs with a view to reduce anything that impacts on operational costs. Notwithstanding his obligation to safety, in his view, there was a higher focus on the financial cost control.
Harvey was in an operational role where his number one focus was on safety which was regularly reinforced by the Board and senior management. Training was provided about safety and how to maintain safety to ensure all operational managers took the necessary steps to maintain a safe workplace. The Lytton Plant as a major manufacturing Plant stored millions of litres of base oil in hundreds of tanks with millions of litres of combustible products stored in multiple warehouses, so there was always the risk of an environmental disaster, fire, explosion and risks associated with truck and forklift traffic at the Plant.
On 15 March 2013 Harvey was to commence three months of long service leave and in the week prior he sought to contact Dietzsch about the period of leave which he wanted to extend by a further four weeks from his previous request and he wanted to be sure from a business perspective it was okay for him to be away for the full period. Contact was made with Dietzsch on his last day of work who initially did not approve the extension but did so some days later via an email. Dietzsch's first response had been to say "fuck" which did not offend Harvey as swearing was a part of the business culture.
With regards to his personal circumstances, Harvey gave evidence that in May 2012 his wife had undergone a minor operation for the removal of a benign lump from her breast and at no time was she diagnosed with cancer or had any chemotherapy or radiotherapy. In June 2012 his wife developed a post‑operative infection which was treated with antibiotics (unsuccessfully) thus she was required to undergo a further operation. In January 2013 after being cleared of the infection his wife underwent reconstructive surgery for the breast. He was not overly concerned about her condition during the period of his long service leave.
In terms of his parents they were aged 90 and 85, resided in a retirement village in Ballina and he worries about them as any child does about a parent which he considers not to be unusual.
Harvey returned to work (from long service leave) on 8 July 2013 having emailed Dietzsch a week prior to his return with a suggestion that he come into work and get a "heads up" about Dietzsch's goals and primary objectives. On 11 July 2013 he came down with a head cold and went home on sick leave returning to work on Monday 15 July 2013. On his return he became concerned that a major safety upgrade to the wharf facility had not progressed at all despite an approach to Dietzsch and the financial controller prior to going on long service leave to have this work undertaken. Additionally he had left instructions with Murtagh as acting Plant Manager that this work was a high priority and the failure to undertaken the work conflicted with information provided earlier by Dietzsch.
A document shown to him at the earlier meeting had identified an extremely high risk to the business relating to a valve head and access by valve head operators on the wharf when exposed to the weather, oil and petrol products on the deck. There was extreme risk associated with the work which had been performed that way since 2006. Photographs of valves on the wharf were tendered [Exhibit 14] to which Harvey testified had been that way since he commenced his employment with the responsibility of this equipment falling under his control. Harvey had spent six to seven years seeking to have the problem remediated putting a final proposal to head office prior to Dietzsch's commencement with the business. The difficulty in progressing the project was that the wharf itself was owned by Caltex and as it received ships on a 24 hour, 365 days of the year basis, to have any work effected there needs to be approval from Caltex. Over time Harvey had engaged three engineers who had an involvement in the project but had all left prior to any work on the project commencing.
On his return to work he was provided with a report regarding an 8,000 litre oil spill that had occurred in his absence from which Harvey gleaned that the root cause of the incident had been cost‑cutting. Also on his return to work he discovered there were over 180 outstanding work requests to remediate problems at the Plant that had not been actioned. In his view in his absence the actual housekeeping of the facility had deteriorated which prompted him to have some discussions with people about those problems as well as discussions with his "direct reports".
On 17 July 2013 at around 11.20 am whilst attending a meeting in the facility meeting room Dietzsch entered the room and requested him to immediately withdraw from the meeting. They then went to his office where Dietzsch advised him that he had "upset a number of people" and "damaged the business" which perturbed Harvey greatly. He then mentioned that somebody wanted to leave if it's going to be like this around here and asked if there were any sort of external issues playing on his mind. He advised Dietzsch that he was obviously concerned about his parents who were aging and he was told to attend a meeting in Greenaway's office at 1.00 pm on that day. In the next hour and a‑half whilst waiting for the meeting he became extremely anxious, felt stressed and wondered what on earth he had done to create this.
He attended the meeting at 1.00 pm turning on his phone prior to entering the meeting for the purposes of recording the meeting with a view to having a better understanding as to what was to be advised to him. Dietzsch provided him with some feedback he had received which indicated Harvey had upset a number of people which was the first time he had received any real feedback. Dietzsch indicated that he wanted to stand him down and he was required to absent himself because he had upset a number of people and damaged the business. The allegation regarding damaging the business was repeated a couple of times. There was no clarification provided as to what he had said to upset people and no details how he had damaged the business.
From his own experiences he was aware that only in extreme situations or very significant situations would the Appellant business stand a person down and it was unusual in the case of senior management. At the time he asked for clarification because without that he would be unable to respond to the allegations. In fact in the meeting he had been advised there was no formal allegation leaving him with no real understanding as to why he had been stood down. Having previously been asked by Dietzsch whether or not he wanted to remain in his role he believed that he was no longer wanted in his role.
Harvey then asked for the people whom he had supposedly upset to be identified. He had not been afforded the opportunity to have a support person with him but would have done so if given the chance. At the conclusion of the meeting he was told to stand down and to advise his Plant and direct reports that he was going to be taking a leave of absence and Murtagh would again be the Acting Manager.
[100]Harvey did not accept that he agreed to take personal leave nor was he given the option to take personal leave, it was more a fait accompli than an option. He was not given a chance to reply to any of the allegations. On his return to the Plant he advised his direct reports what Dietzsch had advised him to say which was "he was taking leave and that Phil [Murtagh] was to be the acting Plant Manager in my absence".
[101]Over the next couple of days he gave consideration to the Disciplinary Standards that were in place at the business which caused a great deal of anxiety as the referenced disciplinary procedures had not been applied to him and the key component of the process being that of natural justice had also not been applied. He reached the conclusion that senior management must have thought the allegations were extremely bad as they had seen fit to discharge him from the workplace without following the procedure.
[102]He recalled occasions in the past where people had been stood down pending a formal investigation which included:
· where a contractor seriously assaulted an operator; and
· extreme pornography had been circulated by one of the senior blenders which had been inadvertently emailed to a female customer.
Harvey could see no comparison between what had happened to those employees and himself in that the business had applied the disciplinary process to the other employees.
[103]At this stage he became quite distressed and sought the services of a Psychologist as well as unsuccessfully seeking treatment from a General Practitioner after having approached three medical clinics on the Sunshine Coast. He ultimately saw a General Practitioner on 26 July 2013 who diagnosed he was suffering acute stress as a consequence of his work environment.
On 23 July 2013 he received a phone call from Greenaway who advised they had conducted an investigation and a number of allegations had been made requiring some discussion between the two of them. Harvey requested the allegations be forwarded to him in writing and he subsequently received them the same day. The correspondence indicated the potential for him to lose his employment.
He was left feeling absolutely devastated and since being diagnosed on 26 July 2013 he had been prescribed a number of different medications and dosages.
[106]Note: At this stage of the evidence‑in‑chief the recording of the meeting of 17 July 2013 covertly recorded by Harvey was played in the proceedings.
Harvey under cross‑examination described the process he relied upon to record the meeting of 17 July 2013. He regarded the company supplied the phone as a workplace tool and that "on other occasions it's ‑ it's a common practice to alert people that ‑ that a meeting whatever is taking place is going to be recorded" [Transcript p. 5‑7]. The decision to record the conversation was taken just before he entered the office and to date he had never personally informed the Appellant of having recorded the meeting [Transcript p. 5‑9]. Harvey denied that he had deliberately withheld the fact he had recorded the conversation [Transcript p. 5‑9]. The failure to disclose the recording according to Harvey was because it was "the last thing on my [his] mind" [Transcript p. 5‑11].
[108]Harvey accepted that he had, as a senior Manager, been involved in numerous potential disciplinary matters and that the Appellant had a relationship of trust and confidence between its employees but rejected his decision to record the meeting was pre‑mediated or that he deliberately withheld his actions from the other participants in the meeting [Transcript p. 5‑16]. He was aware the meeting of 17 July 2013 was significant as Dietzsch had told him at the earlier meeting he had seriously damaged the business [Transcript p. 5‑17]. Harvey on the proposition of the recording identifying him commending Dietzsch and Greenaway on their conducted stated:
"I can recall from the transcript making those comments, and that was towards the very end of the conversation, and at the time I would have said that whilst being sincere, I was dumbstruck by the information that I had been provided, and I was trying to maintain some semblance of composure." [Transcript p. 5‑18].
Harvey had first played the recording on the evening of 17 July 2013 [Transcript p. 5‑20]. He denied in the course of the meeting he was "fishing" for some detail or attempting to have Dietzsch make some adverse comments [Transcript p. 5‑21]. The recording which had been transcribed by his wife was not disclosed to WorkCover when he made his claim because he "didn't see it as being necessary that I provide that information" [Transcript p. 5‑24]. The transcription of the recording was undertaken after the Regulator had set aside the decision of WorkCover and at a time after he became aware there was to be an appeal to the Commission [Transcript p. 5‑25].
[110]Harvey as a member of senior management had previously taken part in disciplinary proceedings, having on occasion initiated such processes as well as having counselled employees, conceding he had not requested the presence of a support person because the decision for him not to have support had been made by Dietzsch [Transcript p. 5‑31]. Claiming to have "lost track" with the question, Harvey on the issue of a support person stated "Well, I never expected that I would need to have a support person and that was based on the original first meeting" accepted that "in essence, it was my decision not to because I was led to believe through Mr Diche's (sic) comments that it was going to be a discussion." [Transcript p. 5‑32]. Harvey conceded that in the meeting of 17 July 2013 he was not requested to address an allegation concerning any employee and there was no employee explicitly named at the meeting [Transcript p. 5‑32].
[111]Harvey gave evidence of having resigned his position in November 2013 but refused to answer a question that he had not been terminated for misconduct. He claimed to have been stood down and did not accept he had agreed to stand down [Transcript p. 5‑34]. Harvey was taken to line 274 of the transcript [Identification 2] of the recording of the 17 July 2013 meeting and asked if it was a genuine comment made by him to which he replied "At the time ‑ I ‑ I believed…Yeah Okay. Well, yes". The comment referred to was:
"You know, you guys, like I said, you got to do your thing, which is the right thing, and I do commend you for it, the way you've managed it. I'm deeply, deeply upset that I've created the situation, ah, that we're, ah ‑ well, I'm not ‑ you guys, I apologise, you know, for distracting you from my business." [Transcript p. 5‑36]
Harvey acknowledged it was eight or nine days after the meeting of 17 July 2013 that he presented to Dr Bradley's clinic ‑ nor did he seek to contact him despite Dr Bradley knowing his forensic mental health history [Transcript p. 5‑38]. He had unsuccessfully sought to obtain medical assistance on the Sunshine Coast in the period immediately following the 17 July 2013 meeting [Transcript p. 5‑38]. Upon returning from the Sunshine Coast he contacted Dr Bradley's office and secured an appointment five days later [Transcript p. 5‑39]. Harvey accepted that the medical certificate issued on 26 July 2013 contained the wording that he was "threatened with dismissal" which had come from him [Transcript p. 5‑40]. Harvey reported to Dr Bradley he was experiencing distress arising from an event on 17 July 2013 [Transcript p. 5‑41]. Harvey did not provided Dr Bradley or Dr Milad (at the time of the consultation) with access to the recording or transcript [Transcript p. 5‑42].
[113]On the consultation with Dr Milad he understood it was for the purposes of an assessment as to whether or not he had suffered a psychological injury and a report would be provided that may have been of importance regarding his workers' compensation claim [Transcript p. 5‑43]. Harvey whilst accepting he had been managing a mental health condition for a considerable period of time, denied it was as early as 2007 or 2009 [Transcript p. 5‑51]. He recalled that in 2009 he had informed Dr Bradley he was distressed by the health of his parents and further acknowledged he had a mental condition that could be traced back to 2007 [Transcript p. 5‑52]. Harvey accepted in 2009 he reported to Queensland Health with a mental health condition and he had taken anti‑mental health medication prior to 2013 [Transcript p. 5‑52]. The event in 2009 was described as "very short‑lived" and there had not been anything from a mental health perspective until the events of 17 July 2013 [Transcript p. 5‑53. Harvey accepted that in 2009 a diagnosis had been made in the following terms:
· adjustment disorder with depressed mood;
· acute stress reaction;
· acute grief reaction; and
· alcoholic hallucinasis [Transcript p. 5‑54].
Harvey had not informed Dr Milad of the 2009 condition but had answered the questions put by Dr Milad to the best of his ability and at the time he was very distressed and on medication [Transcript p. 5‑54].
On his return to work on 15 July 2013 it was Harvey's evidence that he had concerns that safety issues supposed to have progressed over his long service leave had not progressed and other safety issues had developed in his absence [Transcript p. 5‑68]. In his evidence‑in‑chief where he had commented on some of the work scheduled by Murtagh in his absence using words that included "fantastic" and "excellent" it was Harvey's evidence his reference was to project work and minor areas of the Plant [Transcript p. 5‑68].
Harvey denied at an engineering meeting on 15 July 2013 that he had "lost your [his] cool". He denied on 17 July 2013 disclosing that his wife had suffered serious illness and he was personally distressed and affected by it [Transcript p. 5‑71]. Harvey had some previous experience at the Plant with persons who had made claims for workers' compensation for a psychiatric or psychological condition acknowledging an understanding of what reasonable management action was and how a claim for compensation could be made [Transcript p. 5‑73]. Harvey understood that if an injury was caused entirely or partly by personal matters it either negates or reduces the claim [Transcript p. 5‑74].
[116]In hindsight a support person may have been needed for emotional support but that was not the case at the time [Transcript p. 5‑77]. Harvey received the letter from the Appellant (dated 23 July 2013) whilst at his Brisbane residence and in the company of his wife [Transcript p. 5‑78]. He did not accept it was impact of the allegations in the letter and not the meeting of 17 July 2013 that caused his distress, stating:
"No. Sorry, you're wrong. The meeting of the 17th was the meeting that put my head into a tailspin and the letter of allegations as ‑ as detailed exacerbated the situation." [Transcript p. 5‑79]
At some time the next day he read the Disciplinary Standard [Transcript p. 5‑79] although he already had an understanding of the Standard [Transcript p. 5‑80]. Harvey repeated his early evidence that the onset of his condition arose from the meeting of 17 July 2013 and was exacerbated by the correspondence of 23 July 2013 [Transcript p. 5‑80].
On viewing the correspondence of 23 July 2013 [Exhibit 3] Harvey indicated that:
· it did not state he had been terminated;
· he understood the requirement to warn of the possibility of termination in progressing an disciplinary matter;
· he was familiar with the process; and
· he was able to provide detailed response submissions to the Appellant through his lawyers [Transcript p. 5‑82].
[118]Harvey did not accept that the correspondence gave him sufficient detail about the allegations and it was a "rather shoddy document" [Transcript p. 5‑82]. The response identified that the allegations had been completely taken out of context and conjured up [Transcript p. 5‑83]. He acknowledged the use of a profanity as alleged [Transcript p. 5‑83]. At the meeting he had emphasised that Murtagh who was running the meeting was trying to reduce the "R and M" spending when in actual fact there existed 195 outstanding work requests. There were a number of areas requiring attention and the rest of the filling hall was an absolute disgrace [Transcript p. 5‑84].
[119]In re‑examination Harvey gave evidence at no time was he ever provided with statements from the various people said to have witnessed the allegations nor was his request for the investigative material met. In terms of his telephone being used as a work tool beyond telephone calls or sending emails, he would use it to:
· make memos;
· record messages regarding activities when walking around the Plant;
· leave notes for himself in a voice format; and
· record meetings to make minutes.
[120]On his circumstances at the time of consultation with Dr's Bradley and Milad he was:
· Dr Bradley ‑ extremely anxious, upset, very unsure ‑ in a bad place;
· Dr Milad ‑ had been medicated for some period of time, distraught (at times), distressed.
[121]In relation to the 2009 presentation for mental health problems he had been drinking too much alcohol and was experiencing withdrawal from the medication Clonazepam. It was Dr Bradley who on 26 July 2013 suggested he should seek some legal advice (later that day) which led to his request to Dr Bradley for the workers' compensation medical certificate.
Tracey Harvey
Tracey Harvey has been married to Harvey for almost twelve years and she recalled waking up on 20 July 2013 to discover her husband was not on the premises. He returned home at around 8.30 am in a dazed condition, breathing rather heavily, almost hyperventilating when talking to her. At the time they were on the Sunshine Coast rather than their usual place of residence.
[123]Harvey had talked about wanting to end it and of how he had worked out how he could do it properly which saw her encourage him to seek some help through an Employee Assistance Program. She also contacted his parents to notify them as to what was taking place and to seek some guidance from them. Tracey Harvey rang a few medical clinics in the hope of getting him some help but was unable to get an appointment. The clinics called were identified as:
· Bundilla Medical Centre;
· Mooloolaba Medical Centre; and
· Kawana Clinic.
In the period between 17 and 26 July 2013 her observations of Harvey were that he was anxious, not eating or sleeping, was going to the toilet often and he jumped every time the phone rang. In the week prior to 17 July 2013 she had returned from a cruise and found him to be in high spirits.
Under cross‑examination, Tracey Harvey gave evidence that Harvey was very distressed on 17, 18 and 19 July 2013 but it was not seen as bad as it was by 20 July 2013 [Transcript p. 5‑95]. Harvey would discuss issues regarding his parent's health on an intermittent basis [Transcript p. 5‑96]. They had no serious health issues although on the night before 17 July 2013 they found out Harvey's father had "some sort of heart condition" [Transcript p. 5‑97]. In regards to her recall of 20 July 2013 being above her recall of 18 July 2013, Tracey Harvey gave evidence that 20 July 2013 was significant because her "husband was talking about committing suicide" [Transcript p. 5‑98].
Submissions
Appellant
[126]The submission identified dates said to be a chronology of the critical events which included:
· 8 ‑ 15 July 2013 ‑ Harvey returns from leave;
· 17 July 2013 ‑ preliminary discussion between Harvey and Dietzsch;
· 17 July 2013 ‑ discussion between Harvey, Greenaway and Dietzsch ‑ secretly taped by Harvey and tape revealed in December 2013;
· 23 July 2013 ‑ letter from Appellant to Harvey seeking response to various allegations; and
· 26 July 2013 ‑ Harvey attends Dr Bradley ‑ receives medical certificate for event of 17 July 2013.
The letter of 23 July 2013 constituted reasonable management action therefore any alleged injury resulting from receipt of the letter was immunised from compensation by virtue of s 32(5)(a) and (b) of the Act. Harvey ultimately faced serious allegations of misconduct which if established had the potential to cause psychological injury to his colleagues and amounted to a breach of trust to his employer. The course of action taken by the Appellant to investigate the allegations and request Harvey to respond was reasonable and unremarkable.
Harvey had not presented to a doctor until eight to nine days after 17 July 2013 with the doctor reliant upon Harvey's self‑reporting and ability to distinguish his feelings upon receiving the letter of 23 July 2013 and of his demeanour immediately after the 17 July 2013 meeting. The Regulator and Harvey appeared to be at odds over the "triggering event" with Harvey supporting the Regulator's original position of 17 July 2013 disciplinary meeting without a support person and the Regulator now viewing the receipt of the 23 July 2013 correspondence as the triggering event.
Meeting of 17 July 2013
[129]There were references to a number of points made in respect of this meeting which included:
· Dietzsch at the commencement advised of having consistently supported Harvey and of being anxious to continue that support;
· conscious of Harvey's personal life prior to his return from leave;
· Dietzsch acted compassionately towards Harvey;
· had a proactive duty to protect the physical and psychological health of its employees after receiving feedback from other staff around Harvey's behaviour;
· Harvey was advised of the intention to seek more in‑depth feedback;
· Harvey was amenable to taking leave at the time but had the option of remaining in the workplace;
· Appellant behaved professionally and fairly in what was a very general discussion on a very wide range of possibilities that could arise from the enquiries;
· Harvey was apologetic about the nature of the feedback and for placing Dietzsch and Greenaway in the position of having to commence enquiries about his conduct; and
· on two occasions Harvey had commended Dietzsch's handling of the situation and committed to co‑operating with the investigation.
The letter issued on 23 July 2013 was consistent with the events of 17 July 2013 and met the company standards and procedural fairness. There were no assumptions made about the allegations and advised that after Harvey's response he would be informed if required to respond to the findings.
[131]When allegations are made and the nature of those allegations may amount to serious misconduct it is reasonable to ask an employee to take leave or stand down so as to protect the efficacy of the investigation and to protect Harvey as the most senior operational manager on site. The absence of a "formal" complaint was irrelevant as an employer has a duty to respond to any allegation whether truly formal or informal.
[132]Harvey's evidence had previously not been supported in the past where in the matter Lewis v Q‑COMP[1] a negative finding had been made about Harvey's evidence in that case.
[1] Lewis v Q‑COMP (unreported, Industrial Magistrates Court of Queensland, Lee IM, 15 January 2010)
Support Person
[133]The submission relied upon a number of authorities regarding the provision or otherwise of a support person for the purposes of disciplinary matters that included:
· Davidson v Griffiths Muir's Pty Ltd[2];
[2] Davidson v Griffith Muir's Pty Ltd [2010] FWA 4342
· Kelly Biggs‑Venz v Ozcare[3];
[3] Kelly Biggs‑Venz v Ozcare [2010] FWA 4797
· Dissanayke v Busways Blacktown Pty Ltd[4]
[4] Dissanayke v Busways Blacktown Pty Ltd [2011] FWA 3549
"'…the applicant was advised it was a disciplinary meeting which could result in his dismissal…the applicant had not requested a support person' [para 26]. 'The applicant was not offered a support person of his choice' [para 70]. 'The applicant was not denied an opportunity for a support person. In fact, he never asked for one' [para 83]. At [para 133]: 'There was no evidence of the applicant asking for a support person and being denied the request. Indeed, the applicant said he did not ask because he did not see the point, because he knew the request would be rejected…I do not accept this hypothetical expectation of the applicant…In any event, the test in s 387(d) of the Act, is not that the applicant was not offered a support person of his choice, but that "there was an unreasonable refusal by the employer to allow a support person to be present".' On the applicant's own evidence, there was no request for a support person and, logically, there could have been no unreasonable refusal by the employer. Accordingly, the respondent was not in breach of subsection (d) of s 387 of the Act."; [emphasis added]
· Nishat v Degremont Pty Limited[5]
[5] Nishat v Degremont Pty Limited [2010] FWA 1938
"The applicant did not have a representative or support person at the meeting of 22 October 2009. There is no evidence that the applicant sought the presence of a representative or support person at that meeting or that the respondent refused any such request. Contrary to the submission of the applicant, generally speaking, it is not the responsibility of an employer to provide a support person or ensure that one is present." [emphasis added];
· Rebecca Jones v Brite Services[6]; and
[6] Rebecca Jones v Brite Services [2013] FWC 3392
· Travis Northey v Bradken Resources Pty Limited[7]
[7] Travis Northey v Bradken Resources Pty Limited [2013] FWC 6423
"…the applicant was called into a meeting and was 'not offered a support person' [para 18]. 'At no time did the applicant request a support person' [para 44]. Importantly the following comments were made at paras 196‑197:
'There appeared to be some implied criticism that not much was said in this first meeting and the applicant was not offered a support person. In my view, neither of these criticisms are valid. Firstly, as just mentioned, the time since the incident had only been an hour. The Company was hardly in any position to have considered the circumstances or taken evidence from any witnesses. Its purpose was to advise the applicant that prima facie the incident was serious and, that being so, it was appropriate he be stood down.
[197] Secondly, this was not a meeting which warranted a support person present. On one view, it was not even a disciplinary meeting at this early stage. In any event, the statutory requirements of s 387(d) as to whether there was an unreasonable refusal to allow a support person to be present is not the same as the employee not requesting a support person. No adverse finding can arise if the employee does not make the request ‑ as was the case here.' [emphasis added]"
Deceptive Recording of 17 July 2013 meeting and Engagement with Medical Experts
Without informing the Appellant, Harvey secretly recorded the meeting of 17 July 2013, attempting in the proceedings to downplay his actions by suggesting it was the normal use of a workplace tool. The Fair Work Commission has described the secret recording of workplace conversations as "deceptive".
Dr Milad was not provided with the recording or transcript of the 17 July 2013 meeting with Harvey conceding he saw no advantage in providing Dr Milad with it despite Harvey's demonstrable good knowledge of the workers' compensation system.
The 17 July 2013 transcript was said to be highly significant as it evidences Harvey's state of mind at the time of the interview commencing with the following points identified regarding the consultation with Dr Milad:
· the composure, preparation and presence of mind required of Harvey to record the meeting would be an important forensic matter for Dr Milad to consider;
· Harvey did not disclose to Dr Milad that he had taken the recording;
· the recording may balance, indeed contradict, the claims made by Harvey during the interview with Dr Milad;
· Harvey's characterisation of the meeting of 17 July 2013 as a disciplinary meeting is contradicted by a statement of Dietzsch during the meeting that it was not a disciplinary meeting;
· Dr Milad did not have records of Harvey's consultations with his General Practitioner;
· Dr Milad quotes a statement from Q‑COMP that Harvey was not provided with enough time to prepare for the meeting that he was asked to attend on 17 July 2013, yet Harvey was able to prepare sufficiently to record the meeting;
· Harvey's statement to Dr Milad that he "until 17 July 2013, was happy at work, enjoyed his work and was satisfied with his work" is inconsistent with his preceding conduct on both 15 and 16 July 2013, and his evidently distressed state upon arriving at work on 17 July 2013. It is also inconsistent with Harvey's evidence that he was attempting to raise various safety issues at work; and
· Dr Milad reviewed his opinion to that of "aggravation only" although this was only after Harvey's Counsel had three attempts at obtaining a clear opinion from Dr Milad.
[232]On 7 May 2014 Dr Milad provided a report to Harvey's legal representatives in which he thanked them for providing extra material of a medical nature that indicated Harvey had suffered at least two psychiatric episodes in 2007 and 2009 which had not been covered in his Report of 5 December 2013. From the added information Dr Milad opined that Harvey had a recurrent psychiatric disorder of at least three episodes of presenting in acute stress situation with symptoms of stress, anxiety and depression of significant severity but not persistent. The condition Harvey presented with in 2013 was of a similar nature which Dr Milad considered to be an aggravation of pre‑existing condition or relapse of pre-existing condition, stating:
"The information provided does not indicate that he was unwell or has received treatment in the early half of 2013, which indicated to one that his symptoms became prominent and worst after July 2013, precipitated by his reaction to the perceived stress from the suspension and investigation."
[233]Note: At the consultation with Dr Milad on 2 December 2013 there is no question that Harvey failed to provide information regarding psychiatric episodes in 2007 and 2009 although at the time identifying a similar reaction of less severity some 20 years earlier when he had been made redundant.
[234]Dr Bradley recorded on the Workers' Compensation Medical Certificate issued on 26 July 2013 that Harvey's personal injury arose in effect from a workplace incident.
[235]I am satisfied that the personal injury sustained by Harvey was an aggravation of a pre-existing condition of which his employment with the Appellant was a significant contributing factor to the injury.
Whether the operation of s 32(5) of the Act excludes Harvey's personal injury on the basis of reasonable management action taken in a reasonable way
[236]There are in effect two events that emerged in the course of proceedings that required consideration by the Commission with respect to the alleged causation of Harvey's psychiatric condition. Those being:
· meeting of 17 July 2013 at 1.00 pm; and
· correspondence (dated 23 July 2013) which directed Harvey not to attend work from 18 July 2013 pending an investigation into allegations that had been levelled against him.
[237]The Appellant's case was that neither of the two events alleged to be causative of Harvey's condition were events where management action had been taken in an unreasonable way by the Appellant thus contributing to the causation of Harvey's psychiatric condition.
[238]In terms of standards of behaviour and conduct expected in the workplace at the time of the aforementioned events in July 2013, there was in place a company initiated document in the form of a Code of Conduct [Exhibit 1].
[239]The Code of Conduct expected all of the Appellant's employees to observe the highest standards of ethics, integrity and behaviour during the course of employment and provided an overview of the fundamental business values of the company. All workplace participants were expected to conduct themselves in a professional and courteous manner and observe a range of standards identified in the policy. Of the standards relevant to this Appeal, they included:
"Never
·Treat co-workers, customers, suppliers, company management and the general public in a discriminatory manner or without proper regard for their rights and dignity. In this regard, discrimination, victimisation or harassment based on a person's race, colour, creed, religion, national origin, citizenship, age, sex, sexual orientation, marital status, union membership or non-membership, mental or physical disability or any other classification protected by law will not be tolerated.
·Engage in conduct which may cause any reasonable person unwarranted offence or embarrassment.
·Act in an aggressive manner towards others in the workplace.
·Use obscene or offensive language in the workplace."
[240]There was also a provision in the Code of Conduct in respect of Managers and Supervisors which had a direct relationship to Harvey as the most senior operational manager in the business and an employee of seven years of service. The provision required Managers and Supervisors to:
· "Promote a positive team spirit.
· Maintain confidentiality when conducting investigations into grievances and disputes.
· Avoid bias in decision making.
· Ensure compliance with procedures when carrying out counselling and discipline.
· Exercise objectivity when administering rewards or discipline.
· Not condone, permit, or fail to report any breaches of the above code by workplace participants under their supervision."
[241]Also identified in the Code of Conduct were a number of Associated Documents that included a Disciplinary Standard.
[242]The Disciplinary Standard applicable in July 2013 contained the following content relevant to the matters raised in these proceedings:
"PURPOSE
The objective of this standard is to:·correct and/or improve the standard of conduct or performance of an employee where appropriate or necessary; and
·provide any particular employee with an opportunity to correct unacceptable conduct (other than in situations where summary dismissal is appropriate) or unsatisfactory performance.
…
Grounds for disciplinary action
Disciplinary action may be taken in response to any:·Unsatisfactory performance;
·Unacceptable conduct; and
·Wilful or serious misconduct.
…
CounsellingCounselling is the process of correcting an employee's inappropriate behaviour (sometimes referred to as misconduct) or poor performance in a systematic manner. Counselling should not be confused with other management activities of coaching, performance reviews or performance management."
[243]An example of inappropriate behaviour (misconduct) and poor performance contained within the Disciplinary Standard included abuse or harassment of other people.
[244]In terms of disciplinary action, there were provisions for dealing with an employee who had committed a breach of employment obligation by engaging in misconduct. In responding to such misconduct the Disciplinary Standard identified a process to be followed:
"This process follows six steps:
1. A description of the behavioural issue and/or performance problem will be given to the employee by their Supervisor.
2. The Supervisor will then explain the business impact of the behavioural issue and/or performance problem.
3. The employee will then be given an opportunity to provide an explanation for the behavioural issue and/or performance problem. The Supervisor will consider this response when deciding whether or not a disciplinary sanction is imposed (a break in the counselling interview may be required to obtain additional information at this time).
4. The Supervisor will then inform the employee of his/her decision and ensure the employee understands the performance and/or behavioural standards required going forward.
5. The Supervisor will then formulate an action plan for improvement in behaviour or performance in consultation with the employee. The action plan will include a warning describing the consequences if improvement does not occur.
6. Then the Supervisor will set a review date to meet to assess the application of the action plan and determine whether sufficient improvement has occurred."
[245]There was also reference made in the Disciplinary Standard with regards to natural justice:
"Natural Justice
In all instances of counselling the following principles of Natural Justice are to be observed:·Innocence is always presumed
·All matters are dealt with promptly
·All allegations regarding the poor performance or misconduct are given in full
·The employee is given an opportunity to explain his/her performance and/or behaviour
·The disciplinary action taken is appropriate to the seriousness of the breach
·Mitigating factors in relation to the breach are considered."
17 July 2013 meeting at 1.00 pm (Dietzsch, Greenaway and Harvey)
[246]In the lead up to this meeting it was the evidence of Greenaway that he was contacted by Murtagh (on 16 July 2013) who had acted as Plant Manager whilst Harvey was on extended leave in early to mid-2013. Murtagh is said to have expressed concerns after witnessing behaviour from Harvey which was described as "a bit of a tirade" and included raised voices and the use of expletives towards subordinate employees. There were concerns the behaviour was outside the Code of Conduct provisions.
[247]Greenaway informed Dietzsch of the concerns, who then undertook to further investigate the matter. On 17 July 2013 Dietzsch advised after having spoken to a number of employees he had decided to schedule a meeting with Harvey that day at which Greenaway's attendance was required.
[248]Whilst there was no evidence in the proceedings from Murtagh to corroborate the evidence of Greenaway, I can find no reason to doubt the veracity of Greenaway's evidence around the initial raising of concerns.
[249]Dietzsch in giving his evidence offered a description of Harvey on his return from long service leave that he appeared to be very energised, fit, healthy and motivated to return to work. In the lead up to the meeting of 17 July 2013 he had spoken to a number of employees who had indicated concerns over Harvey's behaviour since his return from leave which included having witnessed Harvey breaking down and crying. Dietzsch had concerns himself that there was a chance the Appellant would have a bullying or stress claim against them in respect of the behaviour described and decided to have a "chat" with Harvey to find out what was going on.
[250]Prior to the 1.00 pm meeting of 17 July 2013 he had a one-on-one discussion with Harvey where he informed him of concerns he held regarding the reported interaction with his team and of the need to have a meeting involving Greenaway. Dietzsch in the company of Greenaway prior to the meeting of 17 July 2013 had a telephone hook‑up with the CEO where they informed him they may need to give Harvey some personal time off.
[251]The meeting commenced at around 1.00 pm on 17 July 2013. The Appellant through the evidence of Dietzsch informed that the meeting was not about performance nor a disciplinary process. Greenaway's evidence was that he believed the purpose of the meeting was to provide Harvey with some internal feedback from Dietzsch's various discussions at the Plant level and being hopeful Harvey would be amenable to taking some personal leave to "put some distance between him and the Plant".
[252]According to Greenaway in the course of the meeting Harvey agreed to take some personal leave and in an effort to protect Harvey's integrity as Plant Manager, staff were to be informed the leave was due to his father being unwell. Greenaway had not considered at the time whether the Disciplinary Standard had any application. In the course of the meeting Harvey was said to have been quite apologetic at the possibility of having offended staff on the previous two days.
[253]Dietzsch had not considered the meeting to be a performance discussion which was the reason Harvey had not been told to bring a support person.
[254]The position of Harvey regarding the one-on-one meeting of 17 July 2013 was that Dietzsch had advised him he had upset a number of people and had damaged the business. At that meeting he recalled telling Dietzsch that he had concerns at the time about his aging parents. In the period between the end of the meeting and the start of the 1.00 pm meeting (1.5 hours) he became extremely anxious, stressed and wondered what he had done.
[255]In terms of the 1.00 pm meeting on 17 July 2013 Harvey had a completely different recollection than the other participants of events, giving evidence that in the meeting Dietzsch had:
· indicated he wanted to stand Harvey down;
· Harvey was required to absent himself because he had upset a number of people; and
· Harvey had damaged the business (repeated on a couple of occasions).
[256]Harvey was said, in the absence of details as to how he had damaged the business, sought clarification so as to respond to the allegations. At the conclusion of the meeting he was told to stand down and to advise staff he was taking a leave of absence. Harvey denied agreeing to take personal leave and his evidence was he was never given that option.
[257]Harvey became quite distressed in the days immediately following the meeting, attempting to unsuccessfully obtain medical treatment on or around 20 July 2013 and sought the services of a Psychologist.
[258]In most circumstances the Commission would have to make any findings about the meeting of 17 July 2013 based upon a preference for the evidence of one party as opposed to the other. In this case prior to entering the 1.00 pm meeting on 17 July 2013 Harvey activated his work issued telephone for the purposes of covertly recording the content of the meeting. The effect of knowing the meeting was being recorded in my view afforded Harvey the opportunity of taking a more measured approach to the discussion than someone may have taken if they were unaware of a meeting being recorded.
[259]Whilst I see no benefit at this point in offering a view about the behaviour of Harvey (as a Senior Manager) deciding to record a discussion without informing the other participants, I do however intend to reply upon the recording [Exhibit 15] which was played three times (in its entirety) in the proceedings and again at the time of producing this decision.
[260]Arising from the recording there were numerous references by Dietzsch to Harvey being paid personal leave and towards the end of the meeting acknowledgement from Harvey that he would inform the relevant people that he was "taking some personal leave" and of having "agreed" to take some personal leave which would not come out of his annual leave. I found no passage of conversation in the recording that would confirm at the meeting on 17 July 2013 Harvey was "stood down" as claimed.
[261]In respect of Harvey's evidence that he was told he had damaged the business there were no such references in the recording of that nature but there were references to him having caused damage without expanding upon the type of damage. One might speculate the comment implied damage to the business just as one might equally speculate it was damage to relationships at the Plant. Whilst speculation is unhealthy what is clear is there was no mention of Harvey having caused damage to the business as claimed. At a point two thirds of the way through the meeting Dietzsch informs Harvey his impression was that any damage done was not too great and was fixable although not resiling from the position that there was some real damage and if Harvey remained in the role something had to be done to fix it.
[262]On whether the meeting was in fact a disciplinary meeting as claimed by Harvey the recording of the meeting had Greenaway informing Harvey this was no more than a preliminary discussion and there was no written information at the time that could be passed on. Dietzsch on the same issue made it clear there had been no formal complaint at the time of the meeting, just an "amount of noise".
[263]At the conclusion of the discussion Harvey is recorded commending Greenaway and Dietzsch for the way they had managed it and stating he was deeply upset at having created the situation. He apologised for distracting them from their business and when told by Dietzsch if it was starting to "do his head in" to contact him, responded by saying that would not happen as "there's been worse things than this".
[264]The recording contained no reference to comment either by Harvey or the other two participants with regards to the matter of Harvey having a support person present or having been at least offered the opportunity.
[265]The Disciplinary Standard at Appendix One "Counselling Interview Guidelines" recommends that the employee be offered an opportunity to have a support person present during the counselling process if it may lead to a written warning. In the case of a Final Written Warning the same Appendix indicated that the employee on being advised the reasons for the counselling interview should be advised before the interview commences if they require a support person to be present.
[266]With regards to the 17 July 2013 1.00 pm meeting the priority finding for the Commission is whether that meeting was a part of a disciplinary process in accordance with the Appellant's Disciplinary Standard or as claimed by the Appellant a discussion regarding a number of concerns about reports of Harvey behaving inappropriately towards subordinate employees and not a performance discussion.
[267]There were options available to the Appellant to respond to an employee's misconduct by way of counselling and to correct and improve a standard of conduct. Those options are clearly defined in the Disciplinary Standard which logically if embarked upon by the Appellant would allow for the enlivenment of the disciplinary process. Once enlivened the question becomes was the management action of the Appellant reasonable and undertaken in a reasonable way in relation to the conduct of the process.
[268]There is a need to take into account the status at the time of Harvey in that he was the Plant Manager to whom 120 or more employees reported to directly or indirectly. He had a firsthand knowledge of the Code of Conduct and the Disciplinary Standard having as a Senior Manager participated in such processes on more than one occasion.
[269]Having regard for his status and the impact upon subordinate employees if the allegations were upon investigation to be founded there was the potential of an exposure for the Appellant business with regards to duty of care obligations.
[270]Dietzsch in particular responded promptly to the information around the alleged inappropriate behaviour and undertook some "informal" enquiry that did not "lock in" the allegations as such but certainly there were issues that required a more thorough and formal investigation which he requested (at the time) be undertaken at Greenaway's earliest convenience.
[271]He made immediate contact with Harvey and in essence informed him of what had occurred and requested he meet at 1.00 pm that day (17 July 2013) with Greenaway and himself. Harvey was given around 1.5 hours' notice of the meeting and had been provided with an overview of the matters at issue.
It was reasonably evident that Dietzsch had (prior to the 1.00 pm meeting of 17 July 2013) given some serious consideration to having, in the short term, Harvey exit himself from the Plant whilst investigations were conducted into the allegations. Unquestionably a prudent managerial consideration in the circumstances when taking into account the standing of Harvey in the business as Plant Manager. He consulted with the CEO and received tacit approval prior to the meeting.
[273]In the course of the meeting that was recorded covertly without the knowledge of Greenaway or Dietzsch, it was made clear to Harvey it was a preliminary discussion and in regards to the alleged inappropriate allegations there had been no formal complaint lodged. Dietzsch went to the extent of informing Harvey that he had the impression the situation was "fixable".
[274]The record of the meeting is clear in that Harvey was not the subject of accusation he had damaged the business per se and it was abundantly clear he was not stood down at the conclusion of the discussion as claimed by him but he in fact had agreed to taking a period of paid personal leave which would not be deducted from his accrued annual leave entitlement. Dietzsch advised Harvey that an investigation as a best case scenario would take a couple of days but most probably it could be just over a week. There was at a time well into the meeting that Harvey commended Dietzsch on how he was managing the situation.
[275]The Appellant, facing a difficult set of circumstances, undertook a process that was reasonably open to them in terms of management action, undertaking their action in a reasonable way in reaching agreement with Harvey to take some personal paid leave whilst the concerns regarding his behaviour could be further investigated.
[276]The issue regarding the failure to ensure or at least offer Harvey the opportunity to be accompanied by a support person was not a failure of process by the Appellant and due to the nature of the 17 July 2013 discussion which did not relate to a written warning or termination of employment and there was no such requirement pursuant to the Disciplinary Standard.
23 July 2013 correspondence - allegations of misconduct for Harvey's response
[277]Following the 17 July 2013 meeting Greenaway's evidence was that he interviewed a number of staff after which a "statement of allegations" were prepared. Prior to putting the allegations to Harvey he exercised the option of contacting Harvey by telephone where he invited Harvey to come in and view investigation findings and respond to the material. Harvey declined the request to participate and instead asked that the document be emailed to him.
[278]The correspondence of 23 July 2013 set out the allegations that had been made against Harvey providing details of the persons involved and present when Harvey was alleged to have engaged in inappropriate conduct. Additionally the dates, times and locations were clearly identified in the correspondence.
[279]The Appellant, it was advised, had not made any assumptions about the accuracy of the allegations and in accordance with the Disciplinary Standard he was invited to respond in writing to the allegations by no later than 29 July 2013. At the completion of the investigation he was to be informed of the findings and then given the opportunity to respond to those findings. If the allegations were founded he was put on notice that disciplinary action may be taken against him that could include the penalty of termination of employment.
The letter confirmed he had been directed not to attend work from Thursday 18 July 2013 pending an investigation into the allegations and was required remain away from the workplace until further notice whilst being paid his usual remuneration.
[281]Greenaway, under cross-examination, gave evidence that the correspondence was defective in that it should have identified the date as 23 July 2013 in being directed not to attend work and not 18 July 2013 as contained within the correspondence.
[282]The disciplinary process outlined in the correspondence (23 July 2013) met the conditions imposed on the Appellant in the Disciplinary Standard for the initial stages of a disciplinary action in that:
· a description of the behavioural issues were provided;
· identified the business impact of the behavioural issues indicating the impact in terms of:
·professional image;
·causing unwarranted offence, embarrassment by acting in an aggressive manner using offensive language; and
· Harvey given an opportunity to provide an explanation for the behavioural issue allegations.
[283]The letter of 23 July 2013 was the formal commencement of the disciplinary process and was reasonable management action taken in a reasonable way despite the error in the correspondence that identified Harvey having been directed not to attend work from 18 July 2013 rather than 23 July 2013. The impact of the error in my view was limited in terms of its application to Harvey as he would have been fully aware (despite his evidence) of being amenable to taking a period of paid personal leave as agreed at the 17 July 2013 meeting and therefore already away from the Plant.
[284]The actions of an employer in any event to remove an employee from the workplace following allegations of serious inappropriate behaviour whilst investigations are conducted is far from an uncommon practice and provided, as was the case here, that the employee continues to receive their usual level of remuneration, any disadvantage one might suffer is somewhat minimised.
Witness Credibility
[285]In hearings of this nature the outcome of the Appeal is more often than not determined on the evidence of a party being preferred to that of another.
In this case the medical evidence was neither contested nor contentious with Dr Bradley and Dr Milad's evidence accepted by the Commission as honestly representing their views and opinion. In terms of their evidence there was significant reliance upon the history provided by Harvey with regards to the work events said to be causative of his psychiatric condition. With respect to the first report from Dr Milad, he was not provided with a full history from Harvey regarding previous psychiatric events in 2007 and 2009 yet Harvey made mention of an event some 20 years earlier.
[287]The witnesses for the Appellant (Greenaway and Dietzsch), in the view of the Commission, gave their evidence in an honest and open manner and they assisted appropriately in their evidence in the cross-examination phase. The Commission takes no issue with their credit.
[288]In terms of Harvey, his evidence was not regarded by the Commission at the same level as the previously mentioned witnesses. It was in the circumstances reasonable to conclude that Harvey gave misleading evidence regarding the meeting at 1.00 pm on 17 July 2013 in regards to the issues of:
· not being offered personal paid leave;
· allegations he had damaged the business; and
· having been stood down.
[289]Harvey having access to the disc holding the recording of the meeting as well as a transcript of the meeting prepared by his wife but not tendered as an Exhibit in the proceeding would have been fully aware of the fundamental inaccuracies of his recall of what happened in that meeting.
[290]Further it would be reasonable to conclude that he deliberately misinformed Dr Bradley of the causative nature of his injury that on 17 July 2013 being threatened with dismissal when there was no factual basis for that claim based on the recording of the 17 July 2013 meeting.
[291]In the initial consultation on 2 December 2013 with Dr Milad he withheld information about two psychiatric events in 2007 and 2009 yet was prepared to mention an event from some 20 years past. It would not be unreasonable to make the inference such information was withheld due to concerns of a negative impact upon his claim for workers' compensation.
[292]Finally, the evidence of Harvey that he decompensated on 17 July 2013 and the supporting evidence of Tracey Harvey of particular concerns about an episode on 20 July 2013 is given little weight on the basis of his non-attendance at a medical practitioner until 26 July 2013 and concerns expressed previously about Harvey misleading the Commission in terms of his evidence.
[293]I have a strong reluctance to accepting Harvey based on his evidence and my observations in the proceeding as being a witness of credit.
Finding
[294]On consideration of the evidence, material and submissions before the proceeding, I make the following findings:
· Harvey was, for the purpose of s 11 of the Act, at all relevant times a worker;
· Harvey sustained a personal injury in the form of a psychiatric injury pursuant to s 32 of the Act; and
· the personal injury sustained by Harvey arose out of, or in the course of, his employment and the employment was a significant contributing factor to the injury.
[295]I am satisfied that in terms of the personal injury of Harvey being excluded from being compensatable by the operation of s 32(5)(a) of the Act, the Appellant had discharged the onus of proof of having established that management action with regards to the disciplinary processes on 17 and 23 July 2013 was in both instances reasonable and taken in a reasonable way.
Orders
[296]I make the following orders:
· the Appeal is upheld;
· the decision of Simon Blackwood (Workers' Compensation Regulator) of 17 October 2013 is set aside with the claim not being one for compensation; and
· the Appellant is entitled to costs of and incidental to this Appeal. The parties are directed to confer on the matter of costs and failing agreement, to be subject of a further application to the Commission.
[297] I order accordingly.
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