CFMEU v Blackwood and Vaccaneo
[2015] QIRC 50
•13 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | CFMEU v Blackwood and Vaccaneo [2015] QIRC 050 |
PARTIES: | Construction, Forestry, Mining and Energy Union (Queensland Branch) v Simon Blackwood (Workers' Compensation Regulator) AND Stuart Vaccaneo |
CASE NO: | WC/2013/180 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 13 March 2015 |
HEARING DATES: | 10-14 February 2014 |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The Appeal is dismissed 2. The decision of the Workers' Compensation Regulator dated 3 May 2013 is confirmed. 3. The Appellant is to pay each Respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - Appeal against decision of Workers' Compensation Regulator - psychiatric and psychological injury - Regulator's decision to accept an application for compensation - employer appealed - employer bears onus of proving that employment was not a significant contributing factor to the injury |
| CASES: | Acts Interpretations Act 1954 |
| APPEARANCES: | Mr M. Hinson QC, Counsel for the Appellant, instructed by Hall Payne Lawyers |
Decision
The Construction Forestry Mining and Energy Union (Queensland Branch) ("CFMEU"/ "the Union") appeals under ss 549 and 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the WCR Act") against a decision of the Review Unit of Q-COMP (now Simon Blackwood, the Workers' Compensation Regulator) ("the Regulator") dated 3 May 2013 to accept an application for compensation made by Stuart Vaccaneo.
In his application for compensation, made to WorkCover Queensland ("WorkCover") on 23 September 2010 (Exhibit 1), Mr Vaccaneo described the nature of his injury as "Psychological system in general, Reaction to stressors – other, multiple" and stated that the injury happened at his normal workplace and was "Work related stress." According to the compensation application, the injury did not happen over a period of time but happened at 12.00 am on 11 August 2010. On that date, Mr Vaccaneo was employed by the CFMEU as the Queensland District Executive Vice President.
On 12 April 2012, WorkCover issued a decision in which it rejected his application for compensation. Mr Vaccaneo appealed that decision and, in a decision dated 4 September 2012, Q-COMP set aside the decision of WorkCover and substituted it with a decision to return the matter to WorkCover with appropriate directions.
By letter dated 27 November 2012, WorkCover advised Mr Vaccaneo that it had decided not to accept his application for compensation as he did not sustain an "injury" as outlined in s 32 of the Act (Exhibit 2). Mr Vaccaneo made an application for claim review dated 22 March 2013 (Exhibit 3). By letter dated 3 May 2013 he was advised that a Review Officer of the Regulator had set aside the decision of WorkCover and had substituted it with a decision to accept the claim for compensation in accordance with s 32 of the Act (Exhibit 4). It is against that decision that the current appeal is made by the CFMEU.
Background to the proceedings
Organisation of Queensland District Branch of the CFMEU: Under the Queensland District Branch Rules for the Union's Mining and Energy Division ("the District Branch Rules"):
(a) the District Branch Executive consists of the President, Executive Vice-President, Vice Presidents and the Secretary; and
(b) the District Branch Executive Committee comprises the President, Executive Vice-President and Secretary (Exhibit 9).
Executive officers are elected by the membership of the District Branch every four years.
The District Branch Rules provide that the Executive Vice President "shall act in conjunction with the President and the Secretary" in transacting the general business of the District Branch. In the absence of the President, the Executive Vice President performs the duties of that position and deputises for the President (Exhibit 9).
The District Branch Rules also provide for three District Union Inspectors to be elected every four years and whose functions include inspecting coal mines in Queensland, recording the results of those inspections, and providing "general advice and guidance to members of the District Branch on matters relating to occupational health and safety." At the relevant dates for the Stressors in these proceedings, those District Union Inspectors were Timothy Whyte, Steven Smyth (until November 2009) and Gregory Dalliston.
The role of IHSRs: Each District Union Inspector is also known as an Industry Health and Safety Representative ("ISHR"). That is a statutory position under the Coal Mining Safety and Health Act 1999 ("the CMSH Act"). Each ISHR is appointed by the Union after a ballot of its members. An ISHR is appointed for a four year term. The Minister may terminate an appointment if the Minister considers that the ISHR is not performing their functions satisfactorily.[1]
[1] Coal Mining Safety and Health Act 1999 ss 109, 112, 115.
Mr Vaccaneo and the CFMEU: Mr Vaccaneo became a member of the CFMEU in 1982 and held his first position in the Union (as a local inspector at an underground mine in Collinsville, North Queensland) from about 1998. Apart from a 12 month period when he was at college, Mr Vaccaneo was a member of the Union continuously until he finished employment there. He was an IHSR for some years.
In 2006, Mr Vaccaneo became Executive Vice President. At that time, Andrew Vickers was the District President and he looked after the legal functions in relation to the Union. When Mr Vickers became a national official, Greg Betts (at that stage, the District Secretary) was elected unopposed as District President. Mr Betts introduced a different arrangement whereby Mr Vaccaneo, who continued as Executive Vice President, assumed the role in relation to the legal department, which he was to fill until the election of the next District President. In 2006, James Valery was elected the District Secretary, and continued in that role until Mr Vaccaneo left the Union.
In late 2009, after Mr Betts retired, there was an election at which Stephen Smyth and Mr Vaccaneo stood for the presidency. Mr Smyth had been an ISHR since 2001, (Exhibit 8) but resigned that role in November 2009.
After the election, Mr Smyth became District President and Mr Vaccaneo continued as Executive Vice President. They would have regular contact with each other; sometimes face-to-face but more often (given that Mr Smyth lived in Mackay and Mr Vaccaneo in Brisbane) by telephone or email. According to Mr Smyth, the relationship between them became strained following the elections; indeed he said that "everything went south between Stuart and myself" after Mr Smyth was elected President (Exhibit 8), and their relationship was poor.
The executive usually met monthly. They would deal with safety issues, negotiating enterprise agreements and dealing with disputes arising under industrial instruments and other industrial issues. Mr Vaccaneo's position was a busy, full-time job and he worked long hours, as did other members of the executive. The executive was responsible for managing the Union's affairs under the relevant rules, and dealt with external organisations such as employers as well as members of the Union. Each executive member was expected to be familiar with the legislation that governed matters that they had to look after. Vice Presidents were located across the state. Delegates who wanted an issue dealt with were encouraged to contact first their local Vice President with responsibility for their mines. Depending on the issue and their availability, a Vice President might refer the matter to someone else within the executive.
Mr Vaccaneo took over the responsibility for the CFMEU's legal department. Although that was usually the role of the District President, Mr Smyth seems to have accepted Mr Vaccaneo performing it, both because Mr Vaccaneo had been filling the role for some time and because some others apparently thought that Mr Smyth lacked the experience to look after the legal department. The role involved supervising a legal unit which, when Mr Vaccaneo was elected, comprised two full-time legal officers who were practising solicitors and a paralegal assistant. Mr Vaccaneo attended weekly meetings to review the progress of existing matters and deal with any new issues, ensuring that they were allocated properly. Mr Vaccaneo said that he took that role "very seriously." He explained that the Union had finite financial and personnel resources and they had to ensure that the appropriate resources were allocated to appropriate cases. In relation to the volume of litigation, Mr Vaccaneo gave evidence that:
"Unfortunately dealing with major companies that are taking disciplinary and flagging dismissal against their members, it's miles more litigious than I would like."[2]
[2] Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 12 February 2014) 36.
From 2008 to 2010, Mr Vaccaneo was the coordinator of the Health and Safety Division of the Union. According to Mr Whyte, that role involved gathering resources and assisting the ISHRs do their work, for example where there was a serious accident or a fatality and the ISHR had to visit the relevant mine site. Mr Vaccaneo gave evidence that the role had been filled by Mr Vickers but when Mr Betts became the District President, it "made more sense" for Mr Vaccaneo to take over that role because Mr Betts did not have a background in underground matters and Mr Vaccaneo was an ISHR and still a member of the Coal Mining Safety and Health Advisory Council.
Mr Dalliston confirmed that Mr Vaccaneo, like other Union officials, took his job seriously. He also noted that Mr Vaccaneo had been an ISHR first and had dealt with a couple of fatalities. So far as Mr Vaccaneo was concerned, the Union came first.
It is clear from Mr Vaccaneo's evidence and his demeanour when giving evidence that he was a dedicated member and officeholder of the CFMEU. He was passionate about his work, and devoted his time and energy to the Union and its members. He upheld the positive values which he considered the Union embodied.
Mr Vaccaneo agreed, in cross-examination, that although he did not have any expectation that he could please all members of the Union all the time, he expected "to be able to do our level best" to please most of the people most of the time. He also agreed that during his time on the executive (from 2006 until he finished work at the Union) the members of the executive were people with different personalities and approaches. When asked if he was a cautious and conservative person, Mr Vaccaneo said that he liked to "think issues through where possible," "take a methodical approach" and "try and give it my best." In his view "there would be people who would be more cautious than me and less cautious." He agreed that he and other executive members would not see eye to eye on every issue, and that on occasions there would be disagreements and robust debate within the executive about a particular issue.
Mr Smyth, who had been a member of the Union since 1988 and an officeholder since 2000, said that it was "not all smooth sailing" within the Union and "it can be challenging at times." There were strong willed people who were strong in their beliefs, and personalities contributed to working relationships. It was not unusual for there to be tension, even conflict, from time to time between Union members or officers.
Mr Valery worked in the same office building in Brisbane with Mr Vaccaneo and Mr Dalliston. Mr Valery said that he had a good working relationship with Mr Vaccaneo, and there were times when they socialised outside office hours, including at staff functions, travelling together to various events and time away from the office such as catching up for a beer on a weekend.
Mr Dalliston had almost daily contact with Mr Vaccaneo as they were in adjoining offices and were sometimes away from the office together on work-related matters. Mr Dalliston gave evidence that there was a factional split between the officials with those based in Brisbane (Mr Dalliston, Mr Valery and Mr Vaccaneo) being in one group and those based in Mackay (Mr Whyte and Mr Smyth) being in another, with the Vice Presidents being variously aligned.
Timothy Whyte: Another key witness in these proceedings was Mr Whyte, who was an ISHR for six years before June 2013, when he was elected District Secretary after a contest with the incumbent Mr Valery. While he was an ISHR, Mr Whyte was not a member of the executive committee of the Union. As an ISHR, he was responsible for inspecting coalmines and giving advice on health and safety matters to members. In that role he was answerable to the Minister for Mines and could be directed by the Union's Board of Management. While Mr Vaccaneo was the coordinator of the Health and Safety Division, Mr Whyte was not answerable to him but Mr Vaccaneo would coordinate resources if they had a major issue or fatality. (Exhibit 8)
According to Mr Whyte's written statement (Exhibit 8), he did not know Mr Vaccaneo before the work environment and initially had "no problems with him in a professional manner." Indeed, prior to the incident in December 2008 referred to in Stressor 1 and the other issues that followed, they had a "very good professional and social relationship." In his oral evidence Mr Whyte agreed that he completely lost trust in Mr Vaccaneo from the time of the Stressor 1 incident onwards.
Mr Vaccaneo's decompensation: Following a series of incidents in the workplace (details of which are set out below) Mr Vaccaneo decompensated on 10 August 2010. The incident which gave rise to his decompensation was a telephone call from a delegate regarding a worker who had been reprimanded for using a work email to access pornographic material. Mr Vaccaneo consulted the worker to clarify details of the allegations and to try to provide some help, but he was met with an angry and rejecting response with the worker stating that the CFMEU was doing nothing for him or other workers.
On 11 August 2010, Mr Vaccaneo went to work in a distressed state and was taken home that morning. He did not return to work after that date, and left his employment with the Union on 28 August 2011 having signed a deed of settlement and release.
Nature of Mr Vaccaneo's injury
There is no dispute that Mr Vaccaneo has been diagnosed as suffering a psychiatric or psychological disorder which constitutes an injury for the purpose of s 32 of the WCR Act. He was examined by two psychiatrists, Dr Michael Likely and Dr John Chalk whose diagnoses were respectively:
(a) a generalised anxiety disorder;
(b) an adjustment disorder with depressed and anxious mood.
The symptoms which gave rise to those diagnoses and aspects of the diagnoses are considered later in these reasons the decision.
Stressors
Mr Vaccaneo listed the following four stressors in relation to his claim for compensation:
(a) defamatory emails sent by Mr Whyte just before Christmas 2008;
(b) phone call from the District Secretary in January 2010;
(c) Mr Whyte advised he was going to shut down BHP; and
(d) in August 2010, Mr Whyte engaged in a guerrilla campaign against Mr Vaccaneo.
Mr Vaccaneo gave evidence that he did not list specific stressors in his workers' compensation application because they were relevant to active court and Fair Work Australia cases, and he was "not willing to share that confidential information" with someone he did not know at WorkCover.
In cross-examination, Mr Vaccaneo agreed that at the time of his decompensation he considered that the three main things which contributed to his condition were:
(a) misuse of the Union's email system that included arguably clearly defamatory comments made about many people, continued sniping via email and discussing topics that should never be discussed via email despite training and repeated warnings of dangers of discovery, etc.;
(b) the Goonyella Riverside Mine OSPAT action; and
(c) Mr Whyte's BMA fitness for duty directive.
Those matters were apparently listed in a letter from Mr Vaccaneo to Mr Valery, as the District Secretary, on 8 August 2011 in connection with negotiations about a termination or severance package for Mr Vaccaneo.
On 28 November 2011, Mr Vaccaneo lodged with WorkCover a notice of claim for damages (Exhibit 30). That document was apparently prepared with the assistance of a solicitor. At the hearing, Mr Vaccaneo confirmed the passage describing the details of events resulting in his alleged injury. However, given the errors that Mr Vaccaneo identified in another similarly worded document sent to WorkCover on 23 February 2012 (Exhibit 31), some of the details in the previous document must be taken to be incorrect. For present purposes, it is sufficient to note that Exhibit 30 described the symptoms as commencing in December 2008 and the period of the events ceasing on 28 August 2011, the date when Mr Vaccaneo ceased employment with the CFMEU. The document refers to, and effectively incorporates by reference, the details of the major stressors set out on page 2 of the report of Dr Likely dated 31 October 2011 (Exhibit 6). In summary, the four stressors listed in Exhibit 30 were:
(a) the "defamatory email" sent by Mr Whyte just before Christmas 2008 and the "vexatious and ill-advised emails" that continued to be sent by Mr Whyte notwithstanding that the protocols and etiquette of the use of emails was the subject of a meeting;
(b) a phone call from the District Secretary to Mr Vaccaneo in about January 2010 in relation to the Goonyella Riverside Mine, which involved a CFMEU delegate advising Union members to refuse to undertake pre-shift assessment of the worker's fitness to work prior to the commencement of the shifts, and workers being stood down in circumstances where Union members blamed the CFMEU for causing this situation;
(c) Mr Whyte advising in February 2010 that he was going to "shut down BHP," and the "potentially disastrous consequences" that the CFMEU faced; and
(d) Mr Whyte being found guilty of "exceeding his powers" by the Mines Department and the subsequent "guerrilla campaign" engaged in by Mr Whyte against Mr Vaccaneo by means of "vexatious and derogatory emails" around August 2010.
That statement of stressors provides the basis on which evidence was given in these proceedings. Evidence was also given in relation to the circumstances in which Mr Vaccaneo decompensated on 10 August 2010. There was some contention about whether those events constituted a separate Stressor 5.
Preliminary issues in relation to the nature and conduct of the appeal
Detailed written submissions were made in relation to the following aspects of the appeal:
(a) what is the applicable statutory definition of "injury"?
(b) what is the nature of the hearing of the appeal?
(c) which party bears the onus of proof?
Each issue can be dealt with relatively briefly.
The relevant definition of "injury": The case falls to be determined by reference to the meaning of "injury" in s 32(1) of the WCR Act. That subsection, as amended from 29 October 2013, provides:
“An injury is personal injury arising out of, or in the course of, employment if-
(a) for an injury other than a psychiatric or psychological disorder-the employment is a significant contributing factor to the injury; or
(b) for a psychiatric or psychological disorder-the employment is the major significant contributing factor to the injury.”
Before it was amended, and both at the time of the injury to Mr Vaccaneo and at the date of his workers' compensation application, s 32(1) provided:
“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.”
Mr Vaccaneo’s injury is a psychiatric or psychological disorder.
The threshold question is: which wording of s 32(1) applies in these proceedings? Depending on the answer, it will be necessary to show that Mr Vaccaneo’s employment was either “the major significant contributing factor to the injury” or “a significant contributing factor to the injury”.
Although detailed written submissions, particularly on behalf of the Appellant, were made in relation to this issue, the position is clear. Section 680 of the WCR Act, which commenced in October 2013, states:
'680 Injuries sustained before commencement
(1)This section applies if a worker sustained an injury before the commencement.
(2)The pre-amended Act continues to apply in relation to the injury as if the amendment Act had not been enacted.
(3)Without limiting subsection (2)-
(a)the amount of compensation payable in relation to the injury must be worked out under the pre-amended Act; and
(b)chapter 5 of the pre-amended Act applies in relation to damages for the injury.
(4)In this section-
injury has the same meaning given by section 32 of the pre-amended Act."
That section is sufficient to resolve the issue. The applicable definition of "injury" is the definition in s 32(1) of the WCR Act immediately before the 2013 amendment. Accordingly, it is not necessary to consider the other legislation[3] and decision[4] quoted in the written submissions made on behalf of the Regulator.
[3] Acts Interpretation Act 1954 s 20.
[4] Lackey v WorkCover Queensland (2000) 165 QGIG 22.
Nature of the hearing of the appeal: The relevant legislative provisions provide the starting point in deciding the nature of the hearing in relation to the appeal. In summary, the Act provides that:
(a) a claimant, worker or employer aggrieved by a review decision may appeal to an appeal body against the decision of the Regulator (ss 548, 549); and
(b) for this purpose, the Commission is an appeal body (ss 548A(1)).
In deciding an appeal, the appeal body may -
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate (s 558(1)).
If the appeal body acts under s 558(1)(b) or (c), the decision is taken to be the decision of the insurer (s 558(2)).
There are numerous decisions of the Commission and the Industrial Court in relation to the nature of an appeal in cases such as the present case. The parties provided detailed written submissions in relation to this issue. It is not necessary to set them out at length here. In the end the parties agreed, correctly, that an appeal against the decision of the Regulator is by way of a hearing de novo. It is not a review of the reasons for decision of the Regulator.
The Commission considers the evidence and submissions provided to it by the parties, rather than reviewing the material before the Regulator. Indeed it is usually the case that the Commission has evidence that was not available to the Regulator. The Regulator proceeds primarily on the papers, that is, on material put before it. Although the applicant has a right of appearance (s 543), the Regulator does not obtain evidence orally from witnesses and the parties do not have an opportunity to examine and cross-examine such witnesses. Sometimes documents that are tendered in the appeal proceedings were not before the Regulator. Sometimes documents that were considered by the Regulator are not tendered in evidence to the Commission. The Commission decides the appeal by reference to evidence admitted and submissions made in the hearing.
Although, in that sense, the hearing is conducted on a de novo basis, the starting point is that it is an appeal from a decision of the Regulator. Without that decision, there would be no proceedings in the Commission. The Commission's jurisdiction is attracted by the making of an appeal against the Regulator's decision in accordance with the Act. As noted above, the appeal body may do one of four things in deciding an appeal, but each potential outcome relates to "the decision" against which the appeal is made. If, for example, the appeal is unsuccessful, and the Commission confirms the decision, the Regulator's decision will stand. In that sense, the status quo is the decision of the Regulator.[5]
[5] See Rossmuller v Q-COMP (C/2009/36) - Decision < [2].
The nature of the Regulator's decision will determine who are the parties to any appeal. So, for example:
(a) if the decision is that the claim for compensation is rejected, the appellant will be the worker and the respondent will be the Regulator, and the employer may but might not seek leave to be heard the proceedings;
(b) if the decision is that the claim for compensation is accepted, the appellant will be the employer and the respondent will be the Regulator, and the worker may but might not seek to be a party to the proceedings (s 549).
In either of those circumstances, the Regulator will be the respondent[6] and conduct its case as it sees fit to defend its decision, including calling relevant witnesses for that purpose. Where the employer or the worker respectively does not have leave to appear or is not a party, it would be wrong to think that the Regulator will conduct its case as if it were acting on behalf of, or in the interests of, the absent party.[7] For completeness, I note that the scheme prescribed in the Act is sufficiently different from the statutory scheme considered by the New South Wales Court of Appeal in Turnbull v New South Wales Medical Board.[8] Consequently, the passages from the judgements in that case relied on by the CFMEU are distinguishable for the purposes of this appeal.
[6] See Robyn McCauley AND Q-COMP and Club Resort Holdings Pty Ltd (WC/2011/112) - Decision < See Australian Meat Holdings Pty Ltd AND Angela Merilyn Kennedy And Q-COMP (2006) 181 QGIG 474, 476.
[8] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281.
The employer, the injured worker and the Regulator are parties to the present appeal. Each played an active role in the proceedings. Given the statutory functions of the Regulator and its role in proceedings such as these, and the different interests of the employer and worker respectively, it is important for the conduct of the hearing, and potentially the outcome, to understand which party bears the onus of proof.
Onus of proof: The appellant in this case was Mr Vaccaneo’s former employer. The Regulator submits that, in determining what an employer appellant is required to prove, it is essential to note the distinction between an appeal by a worker and that of an employer. In the Regulator’s submission, it is well established that:
(a) when a worker appeals against a decision of the Review Unit, he or she bears the onus of satisfying the elements of s 32(1) of the WCR Act and, where reasonable management action is involved, to show that the injury is not excluded by the reasonable management action provisions of the Act;[9]
(b) where an employer appeals against a decision of the Review Unit, the employer would have to disprove the worker’s claim.
[9] See Rossmuller v Q-COMP (C/2009/36) - Decision < type="1">
Again, detailed submissions were made in relation to this issue, and numerous decisions of the Commission and Industrial Court were cited or quoted. It is not necessary to set out the submissions at length or refer in detail to the authorities.
On the current state of the authorities it is clear that in cases such as the present case, where the employer is the appellant and the decision appealed against is a decision to accept the claim for compensation, the employer bears the onus of proving on the balance of probabilities that the claim is not one for an acceptance.[10] In some cases it would fall to the employer appellant to prove that:
[10] See State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447, and the more recent decisions in State of Queensland (Department of Communities Disability Services) AND Q-COMP and Saskia Germaine Bettels (WC/2011/247) - Decision < State of Queensland AND Q-COMP and Mrs B (C/2013/2) - Decision < Myer Holdings Ltd AND Q-COMP (WC/2013/118) - Decision < person claiming compensation was not a "worker" within the meaning of the Act at the relevant time; or
(b) the person claiming compensation did not sustain an "injury" within the meaning of the act at the relevant time; or
(c) if they did sustain an injury, the injury either did not arise out of or in the course of the person's employment or the injury was one to which employment was not a significant contributing factor.
Issues in this appeal
In the present case, there is no dispute that Mr Vaccaneo was a worker at the relevant time, that he suffered an injury or that his injury arose in the course of his employment. The only issue is whether his employment was a significant contributing factor to the development of his injury. To succeed in this appeal, the CFMEU must prove on the balance of probabilities that Mr Vaccaneo's employment was not a significant contributing factor to his psychological injury.
Medical evidence
As the Regulator submits, the question of whether or not a worker has sustained an injury arising out of, or in the course of, employment and whether employment is a significant contributing factor to an injury, is a question of mixed law and fact to be determined by the court or Commission.[11] In reaching that determination, ordinarily emphasis is placed on the opinions of medical practitioners.[12]
[11] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142; Sutherland v Q-COMP (2009) 190 QGIG 106, 110; Theresa Helen Ward AND Q-COMP (C/2011/39) - Decision < See Q-COMP v Parsons (2007) 185 QGIG 1.
Mr Vaccaneo was examined separately by two psychiatrists:
(a) Dr Likely who examined him on 31 October 2011 and provided a report dated 31 October 2011 (Exhibit 6); and
(b) Dr Chalk who examined him on 16 February 2012 and provided a report dated 21 February 2012 (Exhibit 5). In preparing his report, Dr Chalk had access to, among other things, the report of Dr Likely.
According to Mr Vaccaneo, he gave each doctor "as full a response as I could" to their questions.
Each psychiatrist also gave oral evidence in the course of the hearing. The following paragraphs draw on their written and oral evidence in relation to a set of common topics or issues. The description and analysis of Mr Vaccaneo's symptoms and injury referred to the key event in the chronology, namely the event on 10 August 2010 when he decompensated while at work.
Symptoms: In his written report, Dr Likely set out in detail a long list of symptoms experienced by Mr Vaccaneo after 11 August 2010. These included the onset of acute and intense symptoms of anxiety (such as acute and intense anxiety, symptoms of autonomic arousal describing cardiorespiratory distress, gastrointestinal distress flushing, tremulousness, light-headedness, stuttering with an inability to communicate clearly and a fear of losing control or dying, apprehension and worry combined with a subjective sense of being unable to control the worry, muscle tension, poor sleep, poor concentration, difficulty making decisions, procrastination, and low self-esteem). Mr Vaccaneo had experienced "a pervasive depressed and dysphoric mood with anergia, amotivation, anhedonia, social withdrawal …, frequent episodes of tearfulness, a desire to be alone, and feelings of hopelessness (although these never coalesced into any formal suicidal ideation)." (Exhibit 6)
When Dr Chalk examined Mr Vaccaneo more than three months later, he noted that Mr Vaccaneo described feeling "considerably better than he did previously" when he had experienced significant anxiety, depression and panic attacks. When he saw Dr Chalk, Mr Vaccaneo reported having adequate sleep, and average appetite, and energy levels that were "slowly improving" although his concentration remained "indifferent." Mr Vaccaneo described some enduring irritability but not pervasive guilt or tearfulness. Although he remained more emotional than he had been in the past, he was not "pervasively sad, hopeless and helpless" but feelings of anger about the ways in which he was treated remained. There was no evidence of any obsessive-compulsive symptomology. (Exhibit 5)
Both doctors noted that Mr Vaccaneo began drinking alcohol heavily in the aftermath of the initial events but, by the time he saw Dr Chalk, his alcohol consumption appeared to have moderated and there was no diagnosis of alcohol abuse or dependence. (Exhibit 5, Exhibit 6)
Diagnosis: Dr Likely diagnosed Mr Vaccaneo as having "Generalised anxiety disorder (arising as a result of an accumulation of circumstances at work resulting in an acute decompensation on the 11th of August 2010) – partially remitted." Having described specific areas of functional impairment, Dr Likely assessed Mr Vaccaneo as having a Whole Person Impairment ("WPI") of 17 per cent. In the course of his written report, Dr Likely quoted the diagnosis of "acute stress disorder and major depressive episode" made by a clinical psychologist, Brenda Muller, on 10 September 2010. (Exhibit 6)
In his written report, Dr Chalk stated that Mr Vaccaneo "has symptoms of an adjustment disorder with depressed and anxious mood" following a breakdown in August 2010. He assessed Mr Vaccaneo as having a WPI of 4 per cent. (Exhibit 5)
The doctors' diagnoses and their respective assessments of Mr Vaccaneo's WPI were considered in the course of the doctors' oral evidence.
Dr Chalk said that there were no significant differences between his diagnosis and that of Dr Likely. Dr Chalk suggested that he was probably more impressed with some depressive symptoms exhibited by Mr Vaccaneo. Dr Likely said that the symptoms reported to both Dr Chalk and himself by Mr Vaccaneo seemed to be "entirely consistent" and the apparently different diagnoses could be explained on the basis that (having regard to the relevant Diagnostic and Statistical Manual of Mental Disorders, DSM-5) if the symptoms for an adjustment disorder persist for longer than six months then the disorder should be reclassified. According to Dr Likely, "essentially, it's a matter of semantics." Both doctors believed that Mr Vaccaneo has a clinically significant psychiatric condition and relied on essentially the same symptoms when preparing their diagnosis.
Dr Chalk also suggested that, although he did not think that Mr Vaccaneo had a degree of psychiatric illness that would warrant a 17 per cent permanent impairment, the different percentages of WPI assessed by him and by Dr Likely were comparable.
Factors giving rise to condition: Dr Likely recorded Mr Vaccaneo's description of a series of events from approximately 2008 which culminated in an "acute decompensation" in his mental health on 11 August 2010, forcing him to cease work on that date. (Exhibit 6) Dr Likely concluded that Mr Vaccaneo's psychological injuries began with a "full blown panic attack" on 11 August 2010, and that they arose "as a result of an accumulation of circumstances at work." In the course of his oral evidence, Dr Likely referred to the "cumulative effects of the stressors" outlined in his report, and described the event in August 2010 as "one too many" for Mr Vaccaneo to bear. In his oral evidence, Dr Likely described the symptoms between 2008 and 2010 as "evanescent" during that period, in that there would have been times when Mr Vaccaneo was reasonably well and unencumbered and other times where symptoms were present and caused him distress. It is also relevant to note that, although he reported that Mr Vaccaneo had dealt with seven fatalities in the course of his work, Dr Likely noted (and apparently accepted) Mr Vaccaneo's statement that none of these tragedies had any enduring effect on his mental health. (Exhibit 6)
In his report, Dr Chalk wrote "It would appear that this man developed psychiatric symptoms as a consequence of a number of difficulties that had been developing over a period of some 12 to perhaps 18 months" in the workplace. Although "it would appear that there was some indication of symptoms developing over a period of time", Mr Vaccaneo described the "fairly sudden onset of a psychiatric symptomology" in August 2010. In his oral evidence, Dr Chalk described that incident as the "final straw" that broke the camel's back. In Dr Chalk's written opinion, "the work related events as described, were a significant contributing factor in the development of his psychological condition." That conclusion is consistent with Dr Chalk's note that Mr Vaccaneo described "becoming increasingly preoccupied with 'internal bullshit'" and that his "difficulties revolved around matters essentially within the union rather than his interaction with external employers." Dr Chalk recorded other traumatic experiences in Mr Vaccaneo's life but noted that there is "no relevant pre or post accident psychiatric history" and "no evidence of a pre-existing psychological or psychiatric illness." He concluded that "there is in my view, no clear evidence that this man had pre-existing significant psychiatric symptomology." That conclusion is consistent with his note that it did not appear from Mr Vaccaneo's account that there are "matters outside of work related issues that are of significant moment in the development of his symptoms." (Exhibit 5)
Prognosis: The prognosis proffered by each doctor was somewhat different from that proffered by the other. Those differences seem to reflect the improvement in Mr Vaccaneo's condition in the period between his examination by Dr Likely and his examination by Dr Chalk. Having examined Mr Vaccaneo on 31 October 2011, Dr Likely reported that Mr Vaccaneo's generalised anxiety disorder had caused him a "permanent psychiatric incapacity" and he would require ongoing psychiatric treatment. Given that Mr Vaccaneo had been "significantly symptomatic for some three years, despite appropriate treatment," Dr Likely stated that it was "difficult to see an endpoint in his treatment regimen." He also stated that Mr Vaccaneo was unable to work in his pre-injury position, and his work-related future "is highly dubious at present." (Exhibit 6)
However, more than three months later, Dr Chalk noted that Mr Vaccaneo described feeling "considerably better than he did previously." (Exhibit 5) In Dr Chalk's opinion, Mr Vaccaneo would ultimately return to work although not to his previous job. More specifically, Dr Chalk wrote:
"I think his psychiatric symptoms, such as they are, are likely to continue to improve and I would expect that once this litigation is resolved and he has returned to some form of appropriate employment, that he is likely to continue working and his working life will not be impeded by significant ongoing psychiatric symptomology." (Exhibit 5)
He confirmed that opinion in his oral evidence when he stated that Mr Vaccaneo would appear to have a very strong work history and "work is good for people, and I think that returning to work is likely to assist him. And when I saw him I didn't think that his symptoms were of such moment as to prevent him from returning to work down the track."
Each doctor described the further medical treatment that, in his opinion, Mr Vaccaneo should receive. (Exhibit 5, Exhibit 6)
Other parts of their evidence will be considered in respect of each Stressor.
Approach to dealing with the Stressors
Stressors are not the creatures of, or required by, the Act. However, in the absence of pleadings, they define the case mounted by the worker and it is by reference to them that the other party or parties engage in the proceeding and that the Commission decides whether an appeal succeeds.[13]
[13] See Blackwood v Adams [2015] ICQ 001 [5], [17], [19].
In dealing with each Stressor it is appropriate to adopt an approach along the lines suggested by the CFMEU, namely:
(a) determine what happened, i.e., what events occurred;
(b) determine the effect of the event or stressor on Mr Vaccaneo's psychological state, in particular whether it was manifested in symptoms of a diagnosable psychiatric or psychological disorder; and
(c) determine whether the medical evidence addresses the events and their effects and, if so, whether the effects were the result of those events or stressors or something else.
The CFMEU submits that the events listed in stressors 1, 2 and 4 (which the Regulator found were substantiated) did not occur in the way described by Mr Vaccaneo or other witnesses called on his behalf, and have been exaggerated, and were not a significant contributor to his injury.
Stressor 1
The stressor: This stressor relates to the "defamatory email" sent by Mr Whyte just before Christmas 2008 and the "vexatious and ill-advised emails" that continued to be sent by Mr Whyte notwithstanding that the protocols and etiquette of the use of emails was the subject of a meeting;
To make a determination in relation to Stressor 1 it is necessary to consider the context, chronology and content of the subject emails; action taken in response to the emails; their effect on Mr Vaccaneo; and the medical evidence about whether the emails caused or contributed to Mr Vaccaneo's injury.
The evidence: Context and chronology of emails: The emails complained of were sent by Mr Whyte on 15 and 16 December 2008. In order to understand and assess the strength of Mr Vaccaneo's concerns in relation to those emails, it is necessary to outline the background to them and quote some preceding emails sent by other people.
In summary, concerns had been expressed by the ISHRs about the safety of a polyurethane product promoted by ResCo Services Pty Ltd ("ResCo") being used as a strata consolidator in the roof of underground coalmines. The product is injected into broken ground to assist in consolidation. Apparently it had been used in mines in America and was known to cause fires. According to Mr Whyte, the product had potential to self-ignite and to give off high carcinogens. It had not been approved at the German testing laboratory and was not given approval for use in New South Wales mines. He and Mr Smyth met with the company's representatives who were unable to provide specific documents which the Union's representatives wanted. Subsequently, Mr Smyth issued a directive that the product could not be used in the Queensland mines. He was contacted by the CEO of ResCo, Craig Ransley, about allowing the product to be used, and by Peter Murray, who was the General Secretary of the CFMEU. Apparently Mr Murray was endorsing the product being used in the mines. According to Mr Smyth, Mr Murray's position was "in conflict to the Union interests and against me personally." (Exhibit 8)
On Monday 15 December 2008 at 9.20 am, Mr Smyth sent the following email:
"Greg & Peter,
I was wondering have you blokes heard any thing from the jokers at RESCO about this crap with their products being stopped from being used? I got a E mail today from a supplier of a product who informs me that RESCO are going to take the NSW DPI to court over the 'restriction of trade' on them?If you have any information in relation to this or in fact what they have been saying would be good. For the record this group are a bunch who do not want to follow a due process and will do anything to get what they want. They wouldn't lie straight in bed. In simple terms why would you want to use a cavity filled product in your coal mine if it catches on fire? I don't understand that.
Any way if you have any info that would be good."
Although the exhibited copy of the email bears no additional reference to the names of the addressees, it appears they were Greg Betts (the then District President) and Mr Murray.
At 2.31 pm that day, Mr Ransley sent the following email to Mr Smyth (cc'd to, among others, Mr Betts, Mr Murray, Mr Dalliston, and Mr Whyte):
"Stephen – I refer to your email below. I note its contents and in particular the criticisms you make of RESCO, its Directors, Executives, and its products and services which are, in every respect, utterly without foundation. I also note with great interest that you have included an EX official as well in your email. I will be referring this email to RESCO's legal advisers immediately."
At approximately 6.12 pm that day, Mr Whyte sent the following email to Mr Smyth:
"Smythy
As I would be sure you are asking the same question, was (sic) sort of low life scab, grub, Judas, Benedict Arnold would be responsible for Resco being able to obtain your e-mail? A question that will be answered in time with the responsible low-life snake being flushed out and exposed. It appears that a Union (and I use that term loosely in this case) person has done this, if this is proved correct then the entire rank and file WILL be informed as well other avenues of information dissemination.
You are Union and Proud mate, and I count you as one of the true stalwarts of this movement and a bloody good friend. I am totally disgusted that this so-called company are pushing their wares, knowing that they have a less than adequate product. That pales into insignificance with this revelation that one of our supposed brothers has seen fit to pass this on to these grubs. You don't have to be Bill Gates to work out email sent and received – if you know where to look. The world had water-gate and now we have SCAB-GATE - pitiful!
Keep your head up mate, the persons responsible for this crap will pay dearly.
yours in safe mining."
Although the email was addressed only to Mr Smyth, it was apparently copied to others whose names do not appear on it. At 6.30 pm that day, Keith Shaw, a Union Official in the northern districts of New South Wales, sent the following email in response to Mr Whyte and Mr Smyth (cc'd to others including Mr Betts, Mr Murray and Mr Dalliston):
"Tim,
Delivered with true dignity. Here, here.
Shawry."
Mr Vaccaneo gave evidence that he first became aware of the emails while he was on annual leave. The District Secretary, Mr Valery, was made aware of the email exchange and contacted Mr Vaccaneo by telephone indicating that there was a major problem with some emails sent by Mr Whyte to the National Secretary. Mr Vaccaneo said he realised that this was "an extremely serious matter" and returned to the office in his capacity as acting District President.
Although he was not directly involved in the issue, Mr Valery as Secretary sent an email expressing concerns in relation to the content of some of the emails, asking people to refrain from sending emails of this nature on the email system.
Andrew Vickers, who by that time was General Vice President of the Union's Mining and Energy Division, sent an email dated 16 December 2008 (at 8.52 am) to 14 named addressees (including Mr Vaccaneo, Mr Valery, Mr Whyte, Mr Smyth, Mr Dalliston, Mr Murray and Mr Betts). The email was headed "Email content" and stated:
"All
Can I please request some calm and decorum and propriety and better still, a refrain from communicating widely, if indeed at all, via email or other written form, in relation to ResCo or any other matter that people may feel offended by.
As Qld Secretary Jim Valery has pointed out, again apparently, overnight, emails and letters have a half life second only to Plutonium and can be the subject of "discovery" orders by Courts in legal proceedings.
I also point out, that this union has a set of Rules which binds all of its members AND officers. I expect all members and officers to abide by those Rules and to process any complaint in accordance with them - not stoop to needless name calling and vilification via email.
I asked everybody to consider the Union first and foremost and conduct themselves accordingly.
Vickers"
In the meantime, at 7.10 am on 16 December 2008, Mr Murray sent an email to Mr Whyte and Mr Smith (copied to seven others including Mr Betts, Mr Dalliston and Mr Shaw). The email stated:
"For the information of all I contacted Resco as I have another issue on the boil with them and questioned them as to the validity of their claims that their product has been approved and I stand by what I done.
If we are going to challenge issues such as this then back door tactics are not my go if we are prepared to take on an issue as important as this then let's have the courage of our convictions and attack it head on and in the open.
Peter Murray"
On 16 December 2008 at 5.27 pm, Mr Whyte sent an email to Mr Murray headed "It Is My Belief":
"P. Murray,
It is my belief that the following applies to yourself – do the right thing and call the dogs off Smythy!
Murray's 30 Pieces of Silver
'Then one of the CFMEU Executive Officials, called Peter Murray, went unto the chief bidders, and said unto them, 'What will ye give me, and I will deliver him unto you?' And they bought him for 30 pieces of silver."
According to Mr Whyte, he took it upon himself to write to Mr Murray advising him to back off as mining health and safety was not his area. The correspondence was sent solely to Mr Murray, who then "copied in just about everyone in the Organisation about what I had sent him in a derogatory form. Various exchanges took place from there." (Exhibit 8)
On 17 December 2008, Mr Whyte sent the following email to Mr Vaccaneo with the "30 pieces of silver" email:
"Stu.
Please find below as requested, obviously the man has a habit of passing mail all around the shop. My main concerns are:-
1. The Union movement.
2. Smythy's impending legal concerns instigated by the same man.
3. The current National executive being more concerned about the mail than the cause of this whole rot.
CheersGoran
yours in safe mining." (Exhibit 8)
Mr Vaccaneo said that he was "incredulous" and couldn't believe that Mr Whyte had sent such an email on 16 December (which was "arguably worse" than his email of 15 December) after the email from Mr Vickers. Mr Vaccaneo said there was no doubt that the Union had to seek its own legal advice about the Union's exposure to a defamation action. He sought that advice in relation to the email of 15 December from an external legal practitioner, Cate Hartigan, who apparently advised that the Union did have some exposure and that Mr Whyte had personal exposure.[14] According to Mr Vaccaneo, the matter was sufficiently serious that they had to involve as many full-time officials in the discussions as possible. A telephone hook-up of all available officials across the state was organised. The position of the district executive was that the Union had its legal advice, Mr Whyte had to obtain his own legal advice, and the Union would not pay for his personal legal advice.
[14] Mr Vaccaneo sought advice from Ms Hartigan in relation to the "scab" email, before the "30 pieces of silver" email, and obtained written advice quickly in relation to the exposure of the Union and of Mr Whyte. He did not seek advice in relation to the latter email, apparently because he had already sought advice in relation to a similar email. In Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 13 February 2014) 44-46.
Mr Valery gave evidence that Mr Whyte's emails contained matters "that we were quite concerned of obviously, seeing as there's a comment to take legal action against the union. They're things that you have to take quite seriously, so they were definitely things that we were quite concerned about." He was aware that Mr Murray threatened to take legal action against individuals and the Union, and those threats "further compounded the concern in relation to the whole matter."
It fell to Mr Vaccaneo, as the acting District President, to contact Mr Whyte and inform him of the decision of the executive. After he arrived home that afternoon, Mr Vaccaneo contacted Mr Whyte by telephone and informed him of the decision, including that they would not be providing him with a copy of the legal advice that the Union had received. Mr Vaccaneo described it as a "strained conversation without being heated", and without either of them resorting to foul language. According to Mr Vaccaneo, Mr Whyte was not happy and had a "strong reaction". He was "extremely disappointed" that the Union was "leaving him hanging," and that so close to Christmas it was up to him to find a suitable legal practitioner to give advice. Mr Whyte was "very bitter" that the Union was not going to pay for that advice. Furthermore, at that stage, Mr Whyte would not or could not recognise the problems with that email. Rather, he considered that he was totally justified in sending that email to the District Secretary, Mr Murray.
In his evidence, Mr Whyte referred to correspondence around Christmas 2008 from Mr Murray's lawyer stating that he would be receiving correspondence for workplace bullying. Mr Whyte confirmed that he was told of the Board of Management's decision that the Union would not be supporting him on the matter, and strongly advising him to obtain his own legal advice. (Exhibit 8) Mr Vaccaneo expressed his concerns about the liability of the Union being sued for Mr Whyte's actions. Mr Whyte obtained advice, though with difficulty given the time of year, and was upset that he was being dealt with for the email when the real issue was the safety of the ResCo product.
Mr Vaccaneo contacted Mr Whyte after the Christmas/New Year shutdown. Mr Whyte informed him that he had obtained legal advice, but he was still not impressed that he had to pay for that advice and continued to think that the Union was hanging him out to dry.
Actions taken as a consequence of the emails: Mr Vaccaneo gave oral evidence that, after the email concerning Mr Murray, he had continuing concerns that people within the CFMEU had sitting on the Union's server "defamatory, insulting, disgusting emails" that had been pointedly directed to a national official. Mr Vaccaneo was "very concerned" about a number of things, including the active threat of defamation proceedings being taken by Mr Murray, and he considered that the Union had to take steps to ensure that it was not going to be similarly exposed again.
As a consequence, Mr Vaccaneo was given authority by the district executive to engage Ms Hartigan to develop a formal training package to demonstrate that they had been trained and understood the material that had been provided to them. A copy of the PowerPoint presentation, Pitfalls of written communication, made to the CFMEU Board of Management on 3 August 2009, around a board meeting in Rockhampton, is Exhibit 11 in these proceedings. As far as Mr Vaccaneo was concerned, that training had legally protected the Union from people who had undergone the training but continued to flout the rules or policy.
The wide-ranging presentation made by Ms Hartigan covered topics relevant to these proceedings and included statements to the effect that:
(a) written communication includes letters, faxes and emails which can be relied on by the person who sent it and the person who received it;
(b) parties involved in litigation have a duty to disclose all relevant documents;
(c) material that is offensive, derogatory or a lawful should not be circulated by email;
(d) communication should be written in an appropriate tone as if it were going to be read by the recipient(s) and a third person (i.e. a court);
(e) written communication should avoid matters which lessen the credibility of the writer (e.g. defamatory matters and threats),
and information about the nature of defamation and matters relevant to defamation actions. The summary at the end of the presentation included:
"Remember your communication may be disclosed in the course of a court proceeding or tendered into evidence - always write as if your communication will one day be viewed in court."
Content of the emails: Some stages of the hearing could be described as a tutorial in the taxonomy of traducing. Terms of abuse were identified, and the circumstances when they are used and their intended effect were described. In relation to Stressor 1, those terms included "low life scab," "grub," "Judas," "Benedict Arnold" and "low life snake." Other terms were mentioned in relation to other Stressors. Not all of them are recorded in these reasons for decision.
In the first email relevant to Stressor 1, perhaps the most familiar of these terms is "scab" which has a long history in the lexicon of Australian vernacular.[15]
[15] For example, about 120 years ago, author Henry Lawson wrote: "It is a great pity that the word 'scab' ever dirtied the pages of a work man's newspaper. It is a filthy term in its present meaning - objectionable every way you look at it. It should never be used by one man in reference to another, no matter how bad the other may be. It is a cowardly word, because it is mostly used behind a man's back; few men, except bullies who have the brute strength to back them, would call a man so to his face." '' The Union Buries Its Dead," first in Henry Lawson, Short Stories in Prose and Verse (Dodo Press, first published 1894, 2008 ed) reprinted in Stephen Torre, The Macquarie Dictionary of Australian Quotations (The Macquarie Library, 1st ed, 1990), 393.
[100]In his evidence about the upset he experienced by having a Union official describe the National Secretary as, among other things, a "scab," Mr Vaccaneo said:
"I don't know of any greater attack you could make on a union official, and especially the word scab, you know. For people who like to throw that word around, there is not a bigger insult and people who throw that word around should have a look at the actual dictionary definition of it."[16]
[16] Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 13 February 2014)
[101]Among the definitions of "scab" in the Macquarie Dictionary are:
"4. someone who continues to work during a strike, takes a striker's place or refuses to join a union, etc.; blackleg … 5. Colloquial a despicable person, especially one who is disloyal."[17]
[17] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 1470.
[102]In cross-examination, Mr Whyte, the author of the email, agreed that calling someone a "scab" is the worst thing you could do to another unionist. It is defamatory of a person to call them scab and is also highly offensive.
[103]It is clear from the evidence that the word "scab" used by one unionist in relation to another as in Mr Whyte's email of 15 December 2008 could only be characterised as being, and intended to be, derogatory and offensive.
[104]Although not integral to the reasoning or conclusion in this case, I note that in judgments delivered after the hearing of this appeal, the Federal Court of Australia and the High Court of Australia have considered the use of "scab."
[105]In Fair Work Ombudsman v Maritime Union of Australia,[18] Siopis J accepted that a poster which described five named persons as "Scabs in Fremantle" carried imputations that the named employees were disloyal, immoral and of a "low life status." His Honour found that the language of the posters cast aspersions on the honesty, integrity and reputation of each of the named employees and that the words were defamatory.[19] Having noted, among other things, the effect of the poster on the persons named in it, his Honour stated that the poster was "particularly obnoxious because in inviting the reader to treat the named employees as devoid of human dignity, it thereby marginalised them and licensed the co-workers to treat them as less than human."[20]
[18] Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440.
[19] Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, [163].
[20] Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, [250].
[106]In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[21] the High Court heard an appeal concerning the termination of employment of an employee who, in the course of a protest, held and waved a sign which had been supplied by the CFMEU and which read "No principles SCABS No guts." Hayne J wrote:
[21] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41.
"There can be no dispute that, as the trial judge found, the sign … was offensive and abusive and that 'the whole point of calling someone a scab was to offend and to belittle them.'."[22]
[22] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, [41].
[107]For completeness, I note that each of the other terms ("low-life," "grub," "Judas," "Benedict Arnold" and "thirty pieces of silver") used in the emails of 15 and 16 December 2008 was, and was intended to be, disparaging and contemptuous of the person to whom they referred. In particular (although it is, perhaps, unnecessary to do so), I find that:
(a) "low life" refers to "a despicable person; a scumbag" or can be used in relation to such people e.g. a low-life scum,[23] or low-life scab, low-life snake;
[23] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 992.
(b) "grub" has various meanings (e.g. the bulky larva of certain insects, and colloquially a person covered with dirt or poor personal hygiene, or a non-union worker who enjoys benefits provided by the union)[24] none of which, in the context of the subject email, is complementary;
[24] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 741.
(c) Judas (i.e., Judas Iscariot)[25] was the disciple of Jesus Christ who betrayed Jesus by identifying him to those who took ultimately secured his crucifixion;[26]
[25] See evidence of Mr Whyte: Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 11 February 2014) 93.
[26] See Matthew 26:47-50, Mark 14:43-46; Luke 22:47-53; John 18:1-9.
(d) 30 pieces of silver was the sum paid to Judas Iscariot to betray Jesus Christ;[27]
[27] See Matthew 26:14-16, also Mark 14:10-11, Luke 22:3-6; and for the consequences for Judas see Matthew 27:3-10.
(e) Benedict Arnold was a general during the American Revolutionary War who originally fought for the American Continental Army but defected to the British Army. Because of the way he changed sides, his name became a byword in the United States for treason or betrayal.
[108]In cross-examination in relation to the "30 pieces of silver" email, Mr Smyth agreed that loyalty and solidarity are important to the CFMEU and someone who breaches solidarity has potentially betrayed its values. Mr Murray was being portrayed as having betrayed those values. However, Mr Smyth asserted that the 30 pieces of silver email was not offensive, derogatory, ill-advised or improper. He was not upset by it.
[109]Mr Whyte agreed that the reference to 30 pieces of silver maintained the Judas theme of the 15 December email, and characterised Mr Murray as a traitor, treacherous, and a "rat in the ranks". But he was unrepentant for those emails because the safety issue was uppermost in his mind and he was justified in saying such a thing about Mr Murray. Mr Whyte agreed that the reason for his role as an ISHR was to save lives and prevent injury, and that no stone should be left unturned to prevent fatality or injury. As he put it, "safety is paramount," and that justifies any measure to prevent a death or injury. He saw that any support for the ResCo product was a major risk to health and safety and that Mr Murray's support of it, at the highest level of the Union, was an act of betrayal.
[110]Mr Whyte was unforgiving of Mr Murray at that time and, on 18 August 2010 (some 20 months after the event and soon after Mr Vaccaneo's decompensation), sent an email with information about Mr Murray to five people within the Union. The subject of the email was "Super super sewer SCAB!!!!". When asked about that email, Mr Whyte said that he was happy to circulate it and did not think it was in breach of the training provided by Ms Hartigan. He said that the email was not offensive to himself and was not derogatory of Mr Murray. When asked whether he considered the expression "super, super sewer scab" to describe a former senior union official was slanderous, Mr Whyte replied:
"I don't believe so. Considering the situation that was at the time, and he was trying to push for a product that was going to cause ill health effects and dangerous conditions for coal mine workers."[28]
[28] Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 12 February 2014) 6.
[111]He conceded that were someone to circulate an email in the same terms about him he would probably find it slanderous at the time, "but I'd get over it."
[112]Effect of Mr Whyte's emails on Mr Vaccaneo: Mr Vaccaneo gave evidence that he was offended by both of Mr Whyte's emails, especially the one that was sent after the email from the national Vice President, Mr Vickers (which Mr Vaccaneo assumed Mr Whyte read). Mr Vaccaneo said:
"after all that, and the calling for calm, etcetera, etcetera, … I was horrified, mortified, disgusted, angry that within hours of receiving that it's quite obvious that Mr Whyte had ignored it, and was not going to stop, by the look of things."[29]
[29] Transcript of Proceedings, CFMEU v Simon Blackwood and Stuart Vaccaneo (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/180, Industrial Commissioner Neate, 13 February 2014) 42.
[113]Mr Vaccaneo said that he was incredulous and could not believe that, after Mr Vickers' email, Mr Whyte would ignore the advice of a national official and then send something "probably arguably worse."
[114]Mr Dalliston, whose office was next to Mr Vaccaneo's, said that Mr Vaccaneo was "pretty heated" after a discussion with Mr Whyte about his email, saying that Mr Whyte wouldn't listen to anything. According to Mr Dalliston, Mr Vaccaneo was "pretty angry, because everyone was concerned about what it could do to the union if it … got any further out of hand."
[115]Mr Vaccaneo said that his other concerns were that:
(a) despite the verbal assurances he had given, and the warnings or suggestions he had received, Mr Whyte had sent these types of emails on a Union email system and there was a possibility of legal action by one Union official against another - and where that would inevitably "play out," and the attendant publicity, could be nothing but detrimental to the Union as a whole;
(b) it was possible, and probable, that the email would cause some dysfunction within the organisation as a whole;
(c) Union resources would be spent in relation to some sort of legal action rather than servicing the membership of the Union; and
(d) Mr Whyte was leaving himself very exposed to being sued for defamation.
[116]Mr Vaccaneo said that after the incident involving Mr Murray, he was concerned that the Union was going to get dragged into a "protracted, very ugly, very public fight" that would expose, in particular, the "totally inappropriate content" of some of the emails on the Union's system, and that would "drag the good name of the union down irreparably." In his view, it was "painfully, painfully obvious" from Mr Whyte sending these emails and having a "totally unrepentant attitude" towards Mr Vaccaneo, that the Union had a "very, very serious issue." Mr Vaccaneo expressed his fear that Mr Whyte would continue sending these types of emails and that at some point someone would take legal action against the Union and Mr Whyte.
[117]Mr Vaccaneo also suggested that the emails continued to concern him because Mr Whyte had sent out emails previously using the Union's email system and the Union's logo stating exactly the position he held. Mr Vaccaneo referred specifically to the "very serious incident" involving the email to the then Chief Inspector of Coal Mines, Brian Lyne. One evening Mr Vaccaneo saw a "very, very active email exchange" taking place between Mr Whyte and Mr Lyne. Other mines inspectors and people not connected to the Union had also contributed to the exchange. The thrust of these "quite pointed exchanges" was along the lines that Mr Lyne was not performing his role. Mr Vaccaneo said that he contacted Mr Whyte and Mr Smyth via email and telephone to ask them to "cease and desist immediately." He persuaded Mr Whyte to do so, and thought that he had learned his lesson. Mr Whyte's evidence was that he did not recall such communications.
[118]Others’ views: There was evidence that not all those involved in the email exchanges understood or shared, Mr Vaccaneo’s concerns.
[119]In his written statement, Mr Smyth expressed the view that he could not see how Mr Vaccaneo could have taken offence at the 30 pieces of silver email as it was not addressed to Mr Vaccaneo, there was nothing in the email "that could have caused Stuart grief," and the exchange that followed was not directed at Mr Vaccaneo. (Exhibit 8) The email related to a product that was unsafe and being used in mines. (Exhibit 8) Mr Smyth's oral evidence was that, at the time, he did not believe the 30 pieces of silver email was offensive. He was not upset by it in any way and did not find anything improper about sending it. He acknowledged, however, the potential liability of the Union in respect of the statements about Mr Murray by Mr Whyte because defamation action was threatened. Mr Smyth knew that Mr Vaccaneo, in his legal role, was tasked with dealing with that issue. However, Mr Smyth was unhappy with the position taken by the national officials in not supporting Mr Whyte (and him) in relation to the ResCo issue.
[120]Mr Whyte stated that he told Mr Vaccaneo that the email was sent directly to Mr Murray and was for his information only. Although Mr Vaccaneo was arguing about this going on with the Union, Mr Whyte "could not see why Stuart behaved the way he did." (Exhibit 8)
[121]There was no direct evidence about the effect of the emails on Mr Murray.
[122]Mr Valery said that Mr Murray provided an email in which he expressed concern because other people had opened the email addressed to him. However, Mr Murray did not say to Mr Valery that he was personally offended by the email.
[123]In cross-examination, Mr Vaccaneo acknowledged that Mr Murray, in his email of 16 December, did not appear to express umbrage or offence at Mr Whyte's email. However, Mr Vaccaneo gave evidence that he spoke to Mr Murray that day and Mr Murray said he was seeking legal advice and was considering legal action. According to Mr Vaccaneo, Mr Murray went on stress leave and did not return to work but reached a mutual separation agreement with the Union. There was documentary evidence to suggest that Mr Murray retired from the Union in December 2008, and became a consultant (Exhibit 27). Apparently, he did not bring any proceedings against Mr Whyte or the Union.
[124]To the extent that it might be thought to counter Mr Vaccaneo’s claim, that evidence merely illustrates that different people respond differently to the same set of circumstances. That evidence does not contradict Mr Vaccaneo’s reaction to Mr Whyte’s emails. Indeed it confirms that he did react. Nor does it provide a reason to call into question the impact they had on him.
[125]Medical evidence: The two psychiatrists gave opinion evidence about this stressor. In his report, Dr Chalk wrote:
"Essentially Mr Vaccaneo describes ongoing difficulties with one of the CFMEU officials, Tim White (sic), who was an industrial safety health representative, a job that Mr Vaccaneo had previously had. There seemed to have been issues in regards to emails and the appropriateness or otherwise with how these were dealt.
… Mr Vaccaneo does not say why the sending of this email particularly impacted upon him. However, it would appear that this brought him into conflict with Mr White …" (Exhibit 5)
[126]Dr Chalk described Mr Vaccaneo's symptoms of an adjustment disorder with depressed and anxious mood which appear to have arisen as a consequence of a number of conditions. However, Dr Chalk was "not persuaded that the defamatory emails of Christmas 2008 were instrumental in the development of condition." (Exhibit 5)
[127]When questioned about that conclusion, Dr Chalk said that he had tried to understand why that particular email had more impact than other emails that were defamatory and vituperative. He was not trying to downplay the impact of the email, but was unpersuaded that at that time Mr Vaccaneo was developing a psychiatric illness. Dr Chalk said that, in retrospect, "it probably was of some significance" particularly as Mr Vaccaneo viewed things over time. Dr Chalk thought that Mr Vaccaneo was "clearly very concerned and rightly so about the impact" of the email, and it was the factors and issues that developed over time rather than that specific incident that led to the development of a clear illness. According to Dr Chalk, Mr Vaccaneo "may have had some symptoms at that time" but he was not persuaded that Mr Vaccaneo had a "clear illness" at that point in time. However, Dr Chalk said that he would accept that the email incident "may have contributed to the development of his symptoms later on." Dr Chalk also stated that the gap between the first stressor around Christmas 2008 and the other stressors in 2010 was of no relevance to the opinion he expressed about Mr Vaccaneo's illness.
[128]Dr Likely did not share the view expressed by Dr Chalk in his report about the impact on Mr Vaccaneo's mental health of the emails before Christmas 2008. According to Dr Likely, Mr Vaccaneo's mental health had not been affected until just before Christmas 2008 and from that time onwards he suffered some symptoms primarily of anxiety. The "culmination of circumstances" referred to in Dr Likely's written report began around Christmas 2008, from which time Mr Vaccaneo had "apparently significant symptoms" which were severe enough to cause him distress (including panic attacks) or impairment in one or more aspects of his functioning. Dr Likely expressly stated that he was not implying that the symptoms were so severe in 2008, but expressed the opinion that they had their onset at that time and progressively deteriorated between then and August 2010, although they may have fluctuated in their severity.
[129]Dr Likely understood from what Mr Vaccaneo told him that the defamatory nature of the emails regarding the national Secretary of the Union was distressing to Mr Vaccaneo "from a subjective point of view." Mr Vaccaneo was sufficiently concerned at that time that he felt obliged to seek legal advice. Dr Likely expressed the view that Mr Vaccaneo was not affected because he had to seek legal advice, but he sought legal advice because "the symptoms had such an effect upon him … such was the nature of the anxiety."
[130]Submissions: The Union's submission observes, in relation to the evidence, that:
(a) Mr Vaccaneo said that he was concerned about Mr Murray suing for defamation, and spoke with Mr Murray who said he was considering legal action - however Mr Murray retired from the Union in December 2008, did not bring any proceedings, and later went to work for ResCo;
(b) there was support among the ISHRs for Mr Smyth's opposition on safety grounds to the use of the ResCo product in Queensland mines, and there was a serious safety issue underlying the emails;
(c) Mr Whyte's position was that he was justified in sending the email to Mr Murray because of the safety issues, and he regarded Mr Murray's support for the ResCo product as an act of betrayal in circumstances where safety was paramount;
(d) the email sent to Mr Murray at 5.27 pm on 16 December 2008 appears to have been sent only to Mr Murray - it could not have been the subject of defamation proceedings because it was not published to anyone else, and it was not the subject of any legal advice sought by Mr Vaccaneo whose concern seems to have been that it was sent after Mr Vickers' email;
(e) Dr Chalk was unpersuaded that the emails of Christmas 2008 were instrumental in the development of Mr Vaccaneo's condition, stating that difficulties around that time sensitised Mr Vaccaneo to problems rather than being causative of problems;
(f) the symptoms Mr Vaccaneo described were not prominent at that time and developed subsequently over a period, and Dr Chalk was not persuaded that Mr Vaccaneo was developing a psychiatric illness at that time - an opinion supported by the evidence of others about Mr Vaccaneo's development of symptoms;
(g) Dr Chalk's opinion should be preferred to Dr Likely's opinion that Mr Vaccaneo was experiencing panic attacks around Christmas 2008, which opinion is not supported by the evidence.
[131]Accordingly, the Union submits that Stressor 1 has not been substantiated. Dr Chalk's evidence should be accepted. This incident was not causative of any psychiatric condition, and was not instrumental in the development of Mr Vaccaneo's condition. Mr Vaccaneo's employment, so far as it involved this Stressor, was not a significant contributing factor to his injury.
[132]The submission on behalf of Mr Vaccaneo is that, as Mr Vaccaneo's job at the time was to superintend legal issues for the Union, his role in this event was squarely within that job. He had the responsibility of dealing with the issue arising from Mr Whyte's offending emails. There was conflict between the two men on the issue. Mr Whyte was and remains resolute in his lack of repentance. He did not see a problem with what he had done, whereas Mr Vaccaneo did see a problem with potential legal liability arising as a consequence of the emails. Mr Vaccaneo's evidence of his concerns about the legal exposure of the Union and the potential for reputational damage is unchallenged. Defamatory comments about a person of the type contained in the emails exposes the commentator and those on whose behalf it is sent to both litigation and potential general opprobrium should the facts of what occurred be published outside the Union.
[303]Emails tendered or referred to in evidence and the "guerrilla" email campaign: Mr Vaccaneo submits that a guerrilla campaign is ordinarily understood as marked by a sudden attacks, harassment and sabotage.
[304]The email sent by Mr Whyte early in the morning of 9 March 2010 before the Union's Board of Management meeting in Dalby was sent without warning and was intended to refer to Mr Vaccaneo. It was a statement of no confidence in him and, in an environment where solidarity was a core value, the sending of the email was an act of ostracising or isolating Mr Vaccaneo. The email could be described as a sudden act of sabotaging Mr Vaccaneo with his peers. It had an immediate and significant effect on Mr Vaccaneo, which effect was apparent to observers of Mr Vaccaneo at the time and the heated discussions which followed.
[305]Beyond that email, Mr Vaccaneo submits that Mr Whyte sent other emails in the period from January 2010 which troubled him and caused him to approach Mr Whyte and ask him to stop. Despite the absence of such emails in evidence in these proceedings, and in the face of denials by Mr Whyte, it is submitted that such a finding can be made because Mr Whyte had a penchant for nasty emails. Examples of such emails include those in relation to Mr Murray, and the "Word of the Week" emails with pejorative words and their meanings aimed at unnamed persons (who could be identified by reference to surrounding events) and circulated to senior officials.
[306]It is submitted that the emails sent by Mr Whyte made Mr Vaccaneo feel denigrated and worth nothing. He expressed his displeasure to Mr Whyte and asked him to cease. Given Mr Whyte's approach to the impact of his email activity on others, Mr Vaccaneo's evidence that he raised the matter with Mr Whyte should be accepted. In support of that conclusion, it is submitted that what is remarkable for an email recipient such as Mr Vaccaneo was apparently unremarkable for Mr Whyte, and it is highly likely that Mr Whyte was dismissive of Mr Vaccaneo and that it would have passed from his memory.
[307]The Union submits that Stressor 4 has not been substantiated. In summary:
(a) although Mr Vaccaneo said that he felt "absolutely filthy and livid" when he saw the email of 9 March 2010 and there was a confrontation about that email at the Dalby Board of Management meeting, that confrontation seems to have cleared the air and it does not appear that the email had some continuing effect on Mr Vaccaneo;
(b) the "Word of the Week" or "Word of the Day" emails can be excluded as contributing to Mr Vaccaneo's injury - although Mr Vaccaneo remembers seeing a couple of the emails he said they were not at the forefront of his mind, and he did not explain to Dr Likely anything about the content or frequency of the emails;
(c) although Mr Vaccaneo said he had no doubt he was the target of the emails, he could not explain why;
(d) Mr Vaccaneo mentioned for the first time in oral evidence emails mentioned to him by Mr Hannay which were circulating in 2009 - but Mr Vaccaneo does not say that they affected him, neither Mr Whyte nor Mr Smyth were asked about them, and they were not mentioned to or considered by the doctors;
(e) Mr Whyte was the author of at least some of the emails but denied engaging in a guerrilla campaign against Mr Vaccaneo by email and was not cross-examined about the "Word of the Week" or "Word of the Day" emails;
(f) the psychiatrists did not address the circumstances revealed in the evidence, and there is no medical evidence about the effect of those circumstances.
[308]Consideration and conclusion: The case in relation to this Stressor was the most difficult to assess, primarily because of the unsatisfactory state of the evidence.
[309]I am satisfied that the email of 9 March 2010 was directed at Mr Vaccaneo, and was a statement of no confidence in him with some serious consequences including attempting to isolate Mr Vaccaneo in an environment where solidarity was a core value. There is clear evidence that Mr Vaccaneo was very angry with Mr Whyte about the email and had reason to be angry. He expressed his views to the relevant people, and had Mr Smyth send a cease and desist email to Mr Whyte to which Mr Whyte replied "received and understood." However, there is no medical or other evidence to suggest that the email had some continuing psychological effect on Mr Vaccaneo.
[310]In relation to the "undisclosed" emails, but am unable to make a finding that particular emails or a number of emails in a specified category exist. This is not a case where I could rely on the rule on Jones v Dunkel in relation to the alleged failure to disclose document to find that Mr Vaccaneo's case about an email guerrilla campaign should be accepted.
[311]The principles covered by the rule in Jones v Dunkel are usefully summarised in the leading text Cross on Evidence.[49] The following principles (drawn from that text, without the supporting citations) are relevant to this appeal:
[49] JD Heydon, Cross on Evidence (LexisNexis, 9th ed, 2013) 36-39.
(a) unexplained failure by a party to tender documents or other evidence may (not must) in appropriate circumstances lead to an inference that the missing material would not have assisted that party's case - but the rule has no application if a reasonable explanation of the failure is given;
(b) although an inference that the untendered evidence would not have helped the party who failed to tender it is permitted, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it;
(c) the rule only applies where a party is required to explain or contradict something.
[312]I acknowledge the Union's explanation that, in essence, such emails do not exist or if they do they could not be located by IT staff. I will not repeat my concerns and reservations about that explanation. It is necessary to deal with a more substantive point.
[313]In this case, the only evidence in relation to specifically identified emails which might have been, but were not, produced concerns emails such as Mr Valery's email of 15 or 16 December 2008 (referred to in Mr Vickers' email on 16 December 2008) and a reference in one document to an email in which Mr Whyte refers to Mr Murray as a "girl". Although those emails, if they still exist, might have been produced, they would not go to the matter in issue. They would not of themselves convince me to draw an inference that numerous other vexatious of derogatory emails existed and continue to exist and that such emails were directed at Mr Vaccaneo.
[314]There was no clear evidence from Mr Vaccaneo or other witnesses, including the doctors, about the content, number or frequency of particular emails (such as "Word of the Week" emails) during the period ending in August 2010. Consequently, it is not appropriate to draw inferences both that the emails existed and that they were about, and denigrated, Mr Vaccaneo.
[315]I do not suggest that Mr Vaccaneo misled the doctors when he referred to such emails. However, Dr Likely coined the phrase "vexatious and derogatory" in relation to them and said that he was unaware of their contents and the frequency with which they were sent. In the absence of specific evidence from Mr Vaccaneo as to the contents of a particular emails, and sufficient corroborating evidence, I am unable to find how many such emails were sent, what they contained and whether they could reasonably have been said to have been directed at Mr Vaccaneo. Furthermore, Mr Vaccaneo's evidence in relation to the "Word of the Week" emails was ambiguous. On the one hand, he said that they made him feel used, abused, denigrated and worthless. On the other hand, the emails only came in spasmodically. It was not something that he obsessed about, and was not in the forefront of his mind each day.
[316]In the absence of specific evidence about particular emails in the period before early August 2010, or copies of at least some of those emails, I find that Stressor 5 has not been proved.
[317]I am satisfied that the Appellant has discharged its onus in showing on the balance of probabilities that Stressor 5 was not a significant contributing factor to Mr Vaccaneo's injury.
The decompensation event
[318]On the evening of Wednesday 10 August 2010, Mr Vaccaneo took a telephone call from a Union member at a BHP site who was facing disciplinary action by his employer in relation to his alleged use of a work email to access pornographic material. Mr Vaccaneo had held face-to-face discussions with the member previously. Apparently, the member was disgruntled because he considered he was being set up to get the sack. Mr Vaccaneo tried to clarify details of the allegations and to provide some help to the member, but was met by an angry response. The worker referred to all the work that had been done on behalf of the people at Goonyella Riverside and told Mr Vaccaneo that he was doing little compared with that. (Exhibit 6)
[319]Mr Vaccaneo gave evidence that the conversation involved a mixture of the Goonyella Riverside situation and inappropriate emails. When the member "mentioned those things together - and in some form it has made some sort of connection in my head and don't ask me why - but when he put it to me in those terms … I felt my heart break and I heard it break." It was then that he had his "meltdown." Mr Vaccaneo knew that he could no longer continue the conversation, so he told the worker he would have to ring him back in the morning. At the end of the conversation, Mr Vaccaneo "collapsed to the floor, sobbing, crying, uncontrollable."
[320]Mr Dalliston gave evidence that, late that Wednesday afternoon (which was an Exhibition public holiday), he met up with Mr Vaccaneo at the Union's car park after they had been at separate meetings. Mr Vaccaneo spoke to Mr Dalliston about something that upset him. He had taken phone calls from people "having a go at him," being unhappy with him and blaming him for not supporting one of the workers in the field. Goonyella Riverside and the differences about when to take the OSPAT test was mentioned. They discussed who would deal with the matter.
[321]Mr Vaccaneo did not have much sleep that night and was shaking and stammering. He was incapable of driving but wanted to go to the office to "get rid of that mongrel laptop because I never wanted to see a union email ever again" and because he believed that he owed Mr Valery and Mr Dalliston some sort of explanation about what had happened and where he was. He sent them text messages asking when they would be in the office as he needed to talk to them.
[322]On 11 August 2010, Mr Vaccaneo's partner, Ms Robinson, drove him to work and dropped him off at or before 6.00 am. The only person at the office at that time was Mr Valery, and Mr Vaccaneo spoke with him on the balcony outside Mr Valery's office.
[323]Mr Valery gave evidence that Mr Vaccaneo sent him a message during the night of 10 August 2010 asking if he was going to be at work early as he had something he needed to discuss. Mr Valery apprehended that Mr Vaccaneo was "quite upset," and when Mr Valery arrived at work the next morning Mr Vaccaneo was sobbing and crying uncontrollably. Mr Valery found that to be "very shocking" because he knew Mr Vaccaneo and thought of him as a man's man where that is "not something that would be normal nature." Mr Valery believed that Mr Vaccaneo "just totally broke down." He kept sobbing, and Mr Valery organised for Mr Vaccaneo to be taken home.
[324]Having suffered a breakdown and left his workplace on 11 August 2010, Mr Vaccaneo did not return to work, and was on sick leave until he ceased employment with the CFMEU on 28 August 2011 when he signed a deed of settlement and release.
[325]When asked why, before 11 August 2010, he had not let anyone know how he was feeling, Mr Vaccaneo said that he did not recognise the symptoms at the time and did not know he was experiencing symptoms. He described some of his physical symptoms at that time as "embarrassing."
[326]Mr Vaccaneo stated that, in hindsight having listened and talked to his psychiatrist and psychologists "it was probably inevitable" that he would have decompensated even without that event. Ms Robinson, gave evidence that in the period from January to August 2010, Mr Vaccaneo started to drink more than previously and that his smoking increased from about one packet of cigarettes a day to two packets. His sleep patterns were "all over the place" and he was not getting a great deal of sleep. Mr Vaccaneo would wake up every one and a half or two hours and would get up to do some work or read or watch television. According to Ms Robinson "his mind was constantly on the problems at work." He would often get very quiet, he became less communicative, and became more agitated over small mishaps (something he had not done previously).
[327]Medical evidence: The medical evidence in relation to the events of 10 and 11 August 2010 is set out earlier in these reasons[50] and need not be repeated. It is sufficient to note that Dr Chalk described the telephone conversation on 10 August 2010 as the "final straw." It was not causative as such, but was a "tipping point." At that point, Mr Vaccaneo became "more fulsomely symptomatic than he had been previously." In Dr Chalk's experience, such a final incident can appear relatively minor but is not.
[50] See Medical evidence - Factors giving rise to condition
[328]Submissions: In its submission, the Union notes that:
(a) Mr Vaccaneo made no reference to this Stressor in his notice of claim to damages;
(b) the details provided to Work Cover on 22 February 2012 did not refer to this Stressor; and
(c) in its decision, Q-Comp considered this Stressor to have been unsubstantiated.
As noted earlier in these reasons for decision, the hearing of the appeal was conducted as a hearing de novo. Consequently, the reference to the decision of Q-Comp is only relevant to demonstrate when this Stressor was separately identified in the series of events that preceded this hearing.
[329]The Union's submission, however, refers to the evidence of Dr Likely (describing the phone call) and Dr Chalk's description of the telephone conversation as the final straw or tipping point rather than causative.
[330]The Union submits that Dr Chalk's opinion should be accepted. The incident was not causative of Mr Vaccaneo's psychological injury. It should be concluded that this incident was not a relevant stressor which contributed to Mr Vaccaneo's injury.
[331]Mr Vaccaneo submits simply that the evidence of the telephone conversation is not contested. The member's complaints were, to use Dr Chalk's words, the final straw. The breakdown occurred when Mr Vaccaneo was working for a member. It is not in contest that it occurred in the course of his duties or arose out of his employment. The effect on Mr Vaccaneo was immediate, direct and drastic. It was a contributing factor and significant in its immediate effect. Mr Vaccaneo came to work the next morning, but he was a mess. He did not last long in the office but was taken home, never to return to work.
[332]Consideration and conclusion: Whether or not this factor can be described as a stressor for the purposes of this appeal, the date of the decompensation event was identified in the original application for compensation. The factor was apparently considered by Q-Comp in the decision against which the Union has appealed. The evidence about it is clear and not contested. Mr Vaccaneo decompensated at his workplace while conducting work-related activity on 10 August 2010, and it was apparent on the following day that he could not continue to work.
Conclusion
[333]Given my conclusions in relation to individual stressors, it is not necessary to make detailed general findings. However, it is relevant to record that I agree with Mr Vaccaneo's submissions that the Union has not met its onus to displace the Regulator's decision. In particular it has not identified any factors external to work that caused Mr Vaccaneo's injury, and has not marshalled medical evidence to contradict the evidence on which the Regulator relied, nor has it provided evidence of an alternative hypothesis of any external contributing factor, let alone a significant one.
[334]In similar terms the Regulator submits that the Union has not adduced evidence that would require a finding, on the balance of probabilities, that Mr Vaccaneo's employment is not a significant contributing factor to the injury. I agree.
[335]It is worth noting, however, that Mr Vaccaneo's injury was not the result of any one of the nominated Stressors. Although it has been necessary to consider each Stressor separately, the medical opinion evidence referred to earlier in these reasons draws on the series of events which preceded Mr Vaccaneo's decompensation. In Dr Likely's opinion, Mr Vaccaneo's decompensation was the result of an accumulation of circumstances at work. Dr Chalk referred to Mr Vaccaneo developing psychiatric symptoms as a consequence of a number of difficulties that had been developing over a period of some 12 to perhaps 18 months in the workplace, and to there being some indication of symptoms developing over a period of time. The incident in August 2010 was the "final straw."
[336]The Union submits that if the Commission is satisfied that one or more of the Stressors have been substantiated, there is a question whether the psychiatrists have considered those Stressors and whether their opinions can be said to relate to the Stressors as found to be substantiated. The Union submits that it might be appropriate to remit the matter to the Regulator with a direction about obtaining further medical evidence.
[337]In essence, the Union notes that Mr Vaccaneo and the Regulator both place great reliance on the medical reports to support Mr Vaccaneo's claim for compensation being accepted. The Union submits, however, that the medical evidence is only of value to the extent that the opinions are supported by findings of primary fact which are sufficiently like the factual assumptions which each doctor made when expressing his opinion. If, the Union submits, the findings about particular events or Stressors did not form the basis of the doctor's opinion, then it would be appropriate to remit the matter to the Review Unit of the Regulator with a direction that medical evidence be obtained upon the facts as found to see if that would justify a conclusion that Mr Vaccaneo was entitled to compensation in terms of the WCR Act.
[338]In reply, the Regulator submits that although he relies on the medical evidence, the distinctions which the Union seeks to draw between the evidence in these proceedings in relation to some of the Stressors and the factual basis on which the doctors expressed their opinions are of little moment. The decided cases focus on events in the workplace that have the effect of causing an injury. Whilst there might be some differing of emphasis that emerges from the evidence, the fact is those events have occurred and caused the injury. In this case, the Regulator submits, the evidence before the Commission is sufficiently like the factual assumptions on which the doctors based their opinions.[51] In particular, there is ample evidence to show that the interactions occurred and that they had the effect upon Mr Vaccaneo to cause his injury. That requires a finding that the appeal is dismissed.
[51] See e.g. Q-COMP v Robin Jeffrey Foote (2008) 189 QGIG 802, 810.
[339]In light of the findings I have made in relation to each Stressor, I am content to adopt the Regulator's submission. Any differences between my findings and the factual basis on which the doctors proceeded in expressing their opinions are differences of degree rather than kind in relation to specific events or interactions. Furthermore, I am not convinced that any useful purpose would be served by remitting the matter to the Regulator.
[340]Given the findings made above in relation to each Stressor, and the evidence of the psychiatrists in relation to each Stressor and the cumulative effect of the Stressors, I have concluded that the evidence supports a finding that Mr Vaccaneo's injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to the development of his injury. Consequently his application for compensation is one for acceptance.
[341]Accordingly the appropriate orders in relation to the appeal are that:
(a) the appeal be dismissed;
(b) the decision of the Regulator dated 3 May 2013 is confirmed; and
(c) the Appellant pay each respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
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