Chapman v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 132
•16 July 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Chapman v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 132 |
PARTIES: | Chapman, Geoffrey v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/335 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 16 July 2015 |
HEARING DATES: | 23 to 25 March 2015 |
MEMBER: | Industrial Commissioner Thompson |
| ORDERS: | 1. The Appeal is upheld. 2. The decision of Simon Blackwood (Workers' Compensation Regulator) of 27 October 2014 is set aside. Claim one for acceptance. 3. The Regulator is to pay the Appellant's costs of and incidental to this Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Simon Blackwood (Workers' Compensation Regulator) ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Stressors - Worker sustained a personal injury in the form of a psychiatric injury - Personal injury sustained by the worker arose out of or in the course of his employment and the employment was a significant contributing factor to the injury - Stressors 6 and 8 found to be unreasonable management action taken in an unreasonable way - Appeal upheld - Decision of Simon Blackwood (Workers' Compensation Regulator) set aside - Appellant entitled to costs of and incidental to this Appeal . |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 11, s 32 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 State of Queensland AND Q-COMP (C/2009/42) - Decision < Comcare v PVWY [2013] HCA 41 |
| APPEARANCES: | Mr S. Sapsford of Counsel, initially instructed by Industrial Relations & Employment Solutions Australia, now instructed by Romans and Romans Lawyers for the Appellant. |
Decision
On 21 November 2014 Geoffrey Chapman (Chapman) lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 27 October 2014.
The decision of the Regulator confirmed the decision of WorkCover Queensland (WorkCover) to reject an application by Chapman for compensation in accordance with s 32(5) of the Act.
Relevant Legislation
The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if
…
(b)for a psychiatric or psychological disorder ‑ the employment is the major significant contributing factor to the injury.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances ‑
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way ‑
•action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
•a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
Nature of Appeal
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by eight witnesses.
The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
The witnesses for the Appellant were:
· Chapman;
· Dr Paul McConnell (Dr McConnell);
· Daniel Hillhouse (Hillhouse);
· Bradley Johnston (Johnston); and
· Gregory Bryan (Bryan).
The witnesses for the Regulator:
· Erik Scholz (Scholz);
· Paul Calabro (Calabro); and
·Matt Halvorson (Halvorson).
Appellant
At the commencement of proceedings a Statement of Stressors [Exhibit 1] was tendered under the signature of Chapman (dated 16 January 2015).
"Statement of Stressors
No. DATE ‑
(dd/mm/yy)EVENT ‑ Short description of the work events including the name of the person involved that caused your psychiatric/psychological injury 1. From 2009 until 2012 The Employer expected the Appellant to be available for lengthy meetings outside business hours. No notice was given. The Employer cancelled meetings with little or no notice. 2. From 2009 until mid‑February 2014 The Employer did not share the outcome of client meetings with the Appellant causing the Appellant to look unprepared or disconnected when next he met with the client. 3. In or about 14 May 2013 The Employer held the Appellant responsible for employees no longer reporting to him after unilaterally instigating a change in reporting lines, without consultation with the Appellant. 4. In or about July 2013 The Employer directed the Appellant to terminate the employment of a subordinate for discriminatory reasons, namely that the subordinate was fat and because he was a smoker. 5. In or about 17 October 2013 The Employer unilaterally changed the Appellant's employment contract by amending the composition of an annual, non‑discretionary bonus payment. The amendment reduced the bonus payment by increasing the deductible component of sales commissions from 5% to 11.5%. 6. On or about 14 January 2014 The Employer failed to provide necessary budget information to the Appellant so that he could plan realistic targets and outcomes for a presentation at a strategy meeting on 17 January 2014 and then criticized the Appellant's presentation delivered at the meeting as 'lacking any detail or tangible initiatives'. The Employer classified this feedback as an official warning. 7. On 12 February 2014 The Employer by its General Manager said the Appellant, 'fuck you pal' in an aggressive, loud and hostile tone in a gathering of senior managers of the Employer in Perth discussing workplace incentives. 8. On 13 February 2014 The Employer raised performance issues with the Appellant by email at 12:44 am, with a demand for a 7.00 am breakfast meeting to discuss those performance issues where the Employer did not attend that 7:00 am breakfast meeting."
Chapman
Chapman at the time of the hearing was currently unemployed having previously spent 38 years working in the electrical industry which included establishing his own business which he sold to Scholz Industries Pty Ltd (Scholz Industries) in 2009. The terms of the sale contained provisions for Chapman to receive a lump sum payment for the business in addition to a five year contract of employment in the position of General Manager ‑ Electrical Group.
As General Manager the immediate reports to him were five State Managers which included the Queensland Manager (Bryan). The primary function of his role was to create relationships with key electrical wholesale accounts and to ensure the State Managers understood the policies and procedures with regards to sales.
In the conduct of his role as the General Manager his evidence was that Scholz would continually set agendas for meetings outside business hours, at unreasonable hours and then cancel the meetings and reschedule them at other times. Chapman had a contract of employment that stipulated his hours of work as 8.00 am to 5.00 pm with a provision for work to be performed outside the normal business hours of work of which Chapman had no problem. In 2012 he told Scholz that he was finding it difficult to take calls at 9.00 pm and 10.00 pm and respond to emails for business meetings the next day. It was agreed this would desist however Scholz continued with the conduct which saw Chapman ignore the emails.
In terms of client meetings he would meet with electrical wholesalers Australia wide to set up trading terms, discuss warranties, discounts and rebates after which he would report the outcomes to Scholz. Difficulties arose when Scholz would hold separate meetings with the same companies and he would offer them additional rebates beyond the established guidelines which caused Chapman embarrassment and frustration when he next met with the companies. Chapman identified the companies involved which included:
· BGW Group;
· MM Electrical;
· Lawrence and Hanson Group;
· Hagemeyer Electrical; and
· Middendorps.
Whilst he provided information of the meetings he attended by emails so that Scholz was aware of the outcomes, the same was not afforded by Scholz which Chapman said affected his ability to complete sales. A major change in his role occurred when the State Managers were required to report directly to Scholz which was conveyed to him by two of the managers who rang him asking what the change meant. The fact there was an absence of consultation was, according to Chapman, inappropriate as was the failure to provide any reasons to him for the change. He did not receive a new job description. Chapman acknowledged an email had been sent advising of the change however he had not seen the email at the time he was contacted by the two managers.
The changes to the reporting structure occurred in May 2013 which reduced Chapman's role to that of providing support to the national sales team. On 23 January 2014 Scholz sent an email to Chapman in which he expressed his concern regarding his performance in his current role. In the email he stated:
"Our business has seen a decline in gross margin. I really would have expected you to have dealt with this before this meeting, consistent with your role. I expect more from a senior member of the team."
Additionally it was stated:
"I have never received any meeting notes from your customer meetings. We discussed the need for this some time ago. If you check your inbox you will see dozens of meeting notes from me."
Chapman responded to the email as he was unhappy with the content which included an official warning. They later met and according to the evidence of Chapman "put it all behind us".
The Sales Manager (at that time) for Queensland was Bryan who according to Chapman, was disliked by Scholz because "he was fat and was a smoker". At one stage he had himself been required to performance manage Bryan for a period of three months after which Bryan reached an acceptable standard. At one stage Scholz directed Chapman to terminate Bryan's employment which he refused to do as there were no grounds for termination. Scholz later had a discussion with Bryan who resigned.
In October 2013 following receipt of his incentive bonus which was considerably less than previous years although sales and profitability were up, he sent an email to Scholz (dated 10 October 2013 ‑ 6.21 pm) seeking a discussion around the issue. The concerns expressed by Chapman included references to the structure of the bonus being changed without any consultation. In an email sent by Scholz to Halvorson (on 25 October 2013) he stated that he had agreed with Chapman on the 2012/2013 payment to be based on the lower commission rates and that whilst he believed the changed rates were appropriate as far as equity was concerned, he conceded he "should have notified" him earlier.
Evidence was given around an Electric Strategy Meeting held on 23 January 2014 which Chapman found concerning in that prior to the meeting he was unable to get access to relevant information in particular to a Quick Tag program where he held a different view than Scholz on the prospects of success of the program. Scholz would later be critical of Chapman's performance in his current role and in particular his presentation at the strategy meeting which he said "lacked any detail". In an email on 28 January 2014 Chapman responded to the criticisms levelled against him pointing out deficiencies in the process and challenging the accusations regarding his performance. On questions regarding Chapman's alleged inconsistencies regarding his communications, he gave evidence of an issue with a default option in his work issued Apple Air Mac computer which he was unaware of at the time.
Chapman met with Scholz on 7 February 2014 after which he sent an email to Scholz in which he affirmed the following:
"Thanks for the conversation we had around my role and our agreement to move forward.
I appreciate also that your previous correspondence surrounding a warning is now behind us and agreed as not applicable.
You have my full support and confidence and I look forward to having a few wins in the days ahead."
Chapman acknowledged that he had not received a response to that email.
Later in February 2014 there were a number of State sales meetings in various States where the executive team provided presentations on the business and strategies to improve on sales and achieve business goals. Chapman gave evidence of his participation which included presentations undertaken by him and of no adverse comments made about his presentations at the time of their delivery.
At the Perth meeting he gave his presentation which was partly missed by Scholz who was absent from the room. Later that evening he attended a "compulsory" dinner where the day's activities were discussed plus there was some mention of an incentive program for the top sales representative of the year who was to escort customers to Hong Kong for a function. When discussing the criteria, Chapman made mention of the need for consideration to be given to gender as there were now female salespersons. Scholz is alleged to have pointed his finger at Chapman saying words to the effect:
"…Fuck you pal. You're so far off the mark. This is a trip where I'll be taking one of our top salesmen. It's a man's trip that can do a lot of fucking and a lot of drinking with my customers."
Chapman said he felt humiliated and belittled by the way Scholz had spoken to him and got up and walked out of the room. Once back at his room Hillhouse and Calabro turned up at which time Calabro expressed an opinion that Scholz was out of order and should not have targeted Chapman.
Chapman received an email at 12.44 am on 13 February 2014 whilst in his room in which Scholz provided the following comment:
"Geoff,
When we discussed and agreed to our regional meetings we clearly allocated responsibilities for all.
Your specific tasks, as discussed, agreed and confirmed in Paul's email were as below
1. Analysis by region of customer, product purchases, gaps and opportunities
2. Rebates, trading terms and growing sales through LTI program
3. Lifting and managing gross margin
4. Growth in MMS business, target 30%
5. Ownership of regional accounts
6. Promotional Strategy, Ian Healy Activity
7. Wholesaler display opportunities
8. Customer credit responsibility.
In no way have you covered these topics, or prepared any presentation or action list relating to this.
Your input today was quite minimal.
In my ongoing discussion on people, accountability and integrity I felt that I made it very clear as to what is expected.
You can not attend these meetings and simply wing it.
Recently we discussed your performance and my note to you regarding this.
I believe that we have a significant disconnect in terms of your role and performance, which together we need to address.
Tomorrow I will discuss this with you.
Erik."
Chapman responded to the email at 2.38 pm on 13 February 2014 where he raised reference to having a disconnection in their relationship as causing him real stress and requesting Scholz take stock of other episodes and reflect upon them. The other matters included:
· an email sent at 12.44 am that was highly critical of his presentation and the expectation to absorb those comments and attend a 7.00 am breakfast with prepared responses. The email and subsequent text arranging the meeting were extremely stressful and exacerbated his distress;
· question emails sent after beverages had been consumed;
· challenged the concerns about his presentation when Scholz was not in the room for 100 per cent of the presentation;
· causing stress to him by arranging an early morning meeting and not attending the meeting; and
· sending stressful emails after having consumed a considerable amount of alcohol.
Chapman offered the opportunity to discuss the issues face‑to‑face.
Following breakfast Chapman spoke to other staff about his presentation receiving positive feedback, in the presence of Scholz. He also sought to engage with Scholz about the issues.
On his return to Brisbane he was feeling unwell with symptoms that included diarrhoea and chest cramps which prompted him to make an appointment with Dr McConnell his general practitioner. He informed the doctor of his circumstances and was prescribed sleeping tablets and referred to a psychologist. He had previously seen the psychologist (Johnston) for personal matters that were no longer present. On this occasion he consulted with Johnston on three occasions before being referred to another doctor.
Under cross‑examination Chapman confirmed that MM Electrical and Hagemeyer were businesses he had been working with for the past 15 years [Transcript p. 1‑47]. The other business he brought on board in the 12 month period after he commenced with Scholz Industries as an employee [Transcript p. 1‑48]. He described the business as sales orientated retailing to wholesalers [Transcript p. 1‑48]. Once he established relationships with clients he would hand the management of their business to the relevant State Manager [Transcript p. 1‑49]. He would then assist the State branches on sales calls and strategies [Transcript p. 1‑50]. In the structure of the business he worked directly under Scholz with Regional Managers and Sales Representatives immediately below him [Transcript p. 1‑52]. There was a Finance Manager (Halvorson) but he was not aware of him also having Human Resource (HR) responsibilities [Transcript p. 1‑53]. When he ran his own business he had responsibility for HR and Workplace Health and Safety [Transcript p. 1‑53] although there was limited documentation regarding Workplace Health and Safety and HR procedures [Transcript p. 1‑54]. Upon taking up his employment with Scholz Industries it was not his role or responsibility to put such policies in place [Transcript p. 1‑55].
In terms of the business he had sold to Scholz he conceded he had no formal HR policies about bullying [Transcript p. 2‑3]. Chapman had no awareness of a Code of Conduct and other work‑related policies in place at Scholz Industries as he only managed the electrical division [Transcript p. 2‑4]. At the time of his employment he was not given an induction or any policies or procedures. If he employed staff he would do the interview and then hand them over to Scholz. None of those employees were ever briefed on HR nor was there any policies or procedures handed to them [Transcript p. 2‑4].
The employment contract (dated 1 December 2009) was prepared by Chapman's Solicitor and although he had never signed the document he adhered to the terms and conditions [Transcript p. 2‑7]. Chapman accepted that the contract had set business hours of work and at times he had to undertake other hours of work for which he had no entitlement for remuneration, having no problem with that arrangement [Transcript p. 2‑9]. The issue he had was being contacted whilst having dinner and in the early hours of the morning. The constant change of meeting times got beyond a joke [Transcript p. 2‑9]. He had raised the matter with Scholz (verbally) in 2012 [Transcript p. 2‑10]. He did not accept that having completed a full day at work that it was reasonable to be required to take phone calls and emails at 10.00 pm and it was not a 24 hours‑a‑day position [Transcript p. 2‑11]. Chapman denied that it was rare to be requested to perform work outside of the set hours [Transcript p. 2‑12]. On the emails allegedly sent by him raising issue with the out of hours contact he was not able to tender them in the proceedings as Scholz had demanded the return of his laptop when he became ill [Transcript p. 2‑13]. He implied that Scholz would sanitise the server and be prepared to commit a fraud to prevent those emails becoming available [Transcript p. 2‑14]. Chapman had been requested by Scholz to sign some fraudulent documents at the time of Bryan's departure from the business and he was aware Scholz had deleted a number of emails [Transcript p. 2‑14].
Chapman conceded the contract of employment allowed Scholz to alter his duties [Transcript p. 2‑16]. The reporting lines had been unilaterally changed by Scholz without any consultation [Transcript p. 2‑17]. On the reduction in his bonus without any discussion, it was eventually restored following about one month of email exchanges, with Chapman denying it was rectified the next day [Transcript p. 2‑20].
On the practice of Scholz to attend meetings with clients and offer arrangements different to what was available to Chapman his evidence was he raised the issue with Scholz on many occasions always orally and he had never put those concerns into emails [Transcript p. 2‑25]. The instruction to terminate Bryan was opposed by Chapman because it discriminated against a person because he was fat and smoked. Chapman accepted at the time Bryan's sales budget was running at 40 per cent [Transcript p. 2‑26]. He denied having discussed with Scholz that Bryan had to leave due to his performance [Transcript p. 2‑27]. Chapman issued a written warning to Bryan in 2012 because amongst other things he was not getting out and doing his calls or following up on certain things [Transcript p. 2‑30]. Chapman conceded Bryan's employment was not terminated because of his size or for being a smoker and in fact he had resigned from the company [Transcript p. 2‑35].
The criticism by Scholz regarding a presentation on 17 January 2014 as lacking detail or tangible initiatives was the subject of questions to which Chapman gave evidence that he was not provided with all relevant financial information from Halvorson [Transcript p. 2‑36]. Chapman had sought a range of financial information from across the business prior to the strategy meeting of 17 January 2014 [Transcript p. 2‑40]. Chapman did not accept his presentation on the electrical side was lacking [Transcript p. 2‑41].
The incident complained of in Perth where Scholz was alleged to have said "Fuck you, pal" in an aggressive manner according to Chapman did take place and he attended the 7.30 am meeting the next morning [Transcript p. 2‑42]. Chapman met with Scholz sometime after the strategy meeting of 17 January 2014 at which time the written warning was withdrawn [Transcript p. 2‑44]. Chapman had no issue with a "Role, responsibilities and expectations" document given to him by Scholz on 3 February 2014 [Exhibit 25] [Transcript p. 2‑45].
Chapman confirmed his evidence‑in‑chief regarding the incident with Scholz in Perth stating that Scholz was aggressive and used a hostile tone of voice saying "Fuck you, pal" and that no woman would win the trip. Chapman did not accept the proposition this was an allegation entirely false and made up by him [Transcript p. 2‑49]. With regards to his presentation earlier in the day, he was not aware of any concerns being raised by those in attendance [Transcript p. 2‑50]. On the allegation that Scholz had "demanded" he attend breakfast it was Chapman's evidence that he classed the statement "could we meet" as a demand [Transcript p. 2‑52].
Scholz had notified him in September 2014 that he would not be renewing his employment contract when it expired in November 2014 [Transcript p. 2‑54]. The claim for WorkCover was lodged after he had commenced proceedings in Fair Work Australia [Transcript p. 2‑55].
In re‑examination Chapman gave evidence that Fair Work Australia released a decision relating to an application by him in December 2014 and his application for WorkCover was made on 4 July 2014 for an injury that occurred on 14 February 2014. Chapman's employment contract stipulated that the remuneration should not be reduced under any circumstance but as a result to the proposed change to his bonus it was in fact a reduction. The employment contract on hours of work had a provision that stated "…reasonably required of the employee".
On the performance improvement process entered into by Bryan, it was Chapman's evidence Bryan met all the required criteria three months after commencement being compliant by the end of September 2012. Chapman confirmed the information he was seeking of the 17 January 2014 strategy meeting related to all aspects of the business. He confirmed the contents of Exhibit 3 had a reference from Scholz about "dozens of meeting notes" from customer meetings attended by him.
The complaint made by Scholz about his presentation in Perth related to an audience of two, both of whom informed him the next day they had understood each and every item.
Dr McConnell
Dr McConnell, a General Practitioner, had been Chapman's treating doctor for a number of years. He provided clinical notes relating to Chapman for the period 14 May 2003 until 12 March 2015 [Exhibit 15]. His evidence went to a consultation on 14 February 2014 where Chapman had informed he had been belittled at work in front of colleagues by his boss. Dr McConnell diagnosed Chapman as suffering from anxiety on the basis of him being clearly distressed as a result of activities that occurred at his work. In documentation provided to WorkCover on 11 September 2014 Dr McConnell in response to questions generated by the Insurer opined that:
· Chapman's employment was the major significant contributing factor to his injury; and
· there were not and non work‑related or pre‑existing factors impacting on Chapman.
In a Workers' Compensation Medical Certificate issued on 27 June 2014 Dr McConnell diagnosed Chapman as having "Severe Anxiety" with the worker's stated cause of injury being "Alleged bully at work".
Under cross‑examination Dr McConnell gave evidence of relying upon the reporting of a patient and the accuracy of that reporting [Transcript p. 1‑59]. In the clinical notes he agreed that an entry of 8 October 2008 had recorded Chapman exhibiting signs of stress at that time [Transcript p. 1‑59]. This diagnosis was described as situational anxiety with a relationship to something that was happening at the time [Transcript p. 1‑60]. In the clinical notes there was reference to Chapman exhibiting a depressive disorder on 22 January 2009 [Transcript p. 1‑60]. Other dates upon which Chapman was being treated for various stress‑related conditions were identified as 29 October 2010, 18 April 2011 and 9 May 2011 [Transcript p. 1‑60].
On 14 February 2014 Chapman was suffering situational anxiety [Transcript p. 1‑61].
Hillhouse
Hillhouse, a Business Development Manager with a renewable solutions company had worked for Scholz Industries from 2010 until April 2014 when he saw the chance of a better opportunity at the new company. At the time of departing he held a number of concerns about the company that included:
· mistrust;
· numbers were concealed and covered up;
· lack of control in regards to responsibility; and
· it became increasingly difficult to execute his duties without retribution.
Rather than having suffered some form of retribution it appeared he had a fear of it.
He became aware that State Managers reporting to Chapman changed when he received an email from Scholz advising they would be reporting directly to the owner which was the first he had heard of it. Hillhouse did not see the new reporting practice as a normal business activity.
Hillhouse recalled travelling to the various branches in February 2014 for the purposes of presenting on the plans for the coming twelve months. The team consisted of Calabro, Chapman, Scholz along with himself and he was present when Chapman presented in Melbourne and Brisbane where at no time did he hear any complaints regarding the presentations.
On arrival in Perth the group undertook their presentations and in terms of Chapman his presentation was the same as previously given although at times Scholz left the meeting to take some phone calls which Hillhouse thought was quite rude. In the evening there were some drinks followed by dinner which was attended by some customers as well as all the presenters.
After dinner he was present at a discussion that involved Calabro, Scott McCallum (McCallum), Chapman and Scholz at which they discussed outcomes and incentives. He recalled Calabro objecting to the discussion as being inappropriate. Everyone expressed their views with Chapman the last to offer an opinion that there needed to be measurable results and it was conceivable that a female could be the winner. Scholz came forward and made it quite clear that a female would not win the incentive trip because it was a trip for "blokes who were able to entertain customers, drink and fuck". Scholz had singled Chapman out by telling him he was far off the mark and he said "fuck you pal". Chapman appeared to be taken back with the comment sort of just shocking the whole table.
Chapman told Scholz that his name was "Geoff not pal". There was some discussion back in the rooms about what had occurred down in the bar after which Chapman went to bed. He next saw Chapman at breakfast the following morning where the presentations were discussed with the regional Sales Manager indicating they had understood Chapman's presentation the previous day. Hillhouse observed that Chapman was clearly disturbed by the events and at 6.39 pm on 14 February 2014 he received an email from Chapman that contained the following content:
"Dan
I just wanted to send you this email to say thanks for your support, especially after the events of the dinner.
I agree that Eric's behaviour was inappropriate…I guess that amount of alcohol unleashed his real personality. I must admit that the aggression was a bit threatening…the swearing and name calling was out of order. I really felt uncomfortable for myself and everyone when he started the "no f..k..g listen Pal" stuff…I can't apologise for him but I wish he hadn't carried on like that.
Again thanks for the support and keep your chin up."
Under cross‑examination Hillhouse gave evidence of his employment with Scholz Industries and of reporting directly to Scholz [Transcript p. 1‑71]. His role related to the solar side of the business and he had no involvement in the day‑to‑day business activities undertaken by Chapman in his role although he had served with him on the executive team [Transcript p. 1‑74]. Whilst Scholz had never threatened that he would lose his job there were implications from his management style where people would resign after being the subject of suitable pressure [Transcript p. 1‑75]. At an executive meeting held in Melbourne he had been present when Scholz gave instructions to Chapman to reduce Bryan's salary by $30,000 per annum by converting him from a Regional Manager to a Sales Representative [Transcript p. 1‑76].
In terms of the incident in Perth involving Chapman he recalled having consumed a number of alcoholic drinks prior to and during the course of dinner, later moving on to the lobby bar. Discussions were being conducted about an incentive plan and how metrics could be used as a measurement tool. Chapman said that no‑one could be excluded from the incentive plan at which point Scholz interrupted telling him he was off the mark saying words to the effect "Fuck you, pal. You're so wide of the fucking mark" [Transcript p. 1‑79].
Hillhouse acknowledged that he had previously worked for Chapman as a commission sales agent for a period of 12 months and only had a social relationship during their time at Scholz Industries [Transcript p. 1‑80]. In respect of Chapman's presentation at the Perth meeting he had no concerns about it not having reflected upon the agreed topics but it became clear later that Scholz and Calabro were expressing concerns about the presentation [Transcript p. 1‑81]. Hillhouse was taken to an undated and unsigned affidavit said to have been prepared by him that included references to the exchange in Perth between Chapman and Scholz and where he expressed a view that someone should not send a business related email after an amount of alcohol had been consumed [Transcript p. 1‑83]. He identified his hours of work at Scholz Industries as 7.00 am to 7.00 pm and sometimes after hour's duties [Transcript p. 1‑84].
In re‑examination his evidence was that Calabro, McCallum along with himself witnessed Scholz say to Chapman "Fuck you pal. You're so far off the mark". The unsigned affidavit according to Hillhouse had been prepared in July 2014 which was followed by a subsequent version that he had signed.
Johnston
Johnston, a Clinical and Consulting Psychologist, had the occasion to treat or consult with Chapman after which he prepared two reports (dated 1 April 2014 and 10 November 2014). Chapman had been referred to him in 2011 and then in 2014 by Dr McConnell from the same practice. In the case of 2014 he first saw him on 27 February of that year.
In 2011 he diagnosed Chapman as suffering from an adjustment disorder with mixed anxiety and depressed mood of mild severity. The diagnosis in 2014 was the same except the severity was much greater in the moderate to severe range. The diagnostic criteria relied upon in 2014 was the Diagnostic and Statistical Manual ‑ Fifth Edition (DSM‑V Classification 309.28).
The Report of 10 November 2014 contained reference to a history provided by Chapman that he had been "bullied, unjustly criticised, and professionally humiliated, in front of his peers by his employer". The history given went to emails that had attacked him both personally and professionally.
There was, in the opinion of Johnston, a new injury in 2014 and not an exacerbation of a pre‑existing injury. Johnston was not aware of any other stressors that potentially caused or contributed significantly to the symptoms he displayed at the time.
In the Report (dated 1 April 2014) [Exhibit 27] Johnston acknowledged he had "no independent corroboration of the allegations of workplace bullying made by Mr Chapman".
Under cross‑examination Johnston confirmed that Chapman had informed him in April 2014 he had been the subject of increasing harassment and bullying in the workplace, publicly humiliated and having his character and professionalism unjustly criticised. He confirmed there was no independent corroboration of these allegations [Transcript p. 2‑68].
Bryan
Bryan, currently a Senior Account Manager, had previously been employed by Scholz Industries in 2010 as the Queensland Sales Manager. He initially reported to Chapman however in the last six months of employment reported directly to Scholz. The change in reporting was advised by email on 14 May 2013 and took effect immediately.
In terms of doing business it was not uncommon for Scholz to do "deals" with specific customers with Bryan's evidence providing examples in the form of an electronic dimmer and a plastic fan which were offered to the Middendorp Group in around late 2012, early 2013. Bryan did not see it as unusual for someone in Scholz's position to have particular dealings with customers however by not notifying the rest of the company details of arrangements it had at times caused him embarrassment. Other customers favoured by Scholz were identified as BGW Group and The Lighthouse.
Bryan acknowledged that in June 2012 he had participated in a performance improvement agreement which was prior to hearing Scholz comment in a phone hook‑up involving the various States that "We'll have to get rid of Greg, because he's fat and he smokes". In terms of the performance issue he finalised the program with all issues addressed. Whilst he continued in the position sometime later he was called into Chapman's office and informed that a new employee would be taking over his role as Queensland Sales Manager and he would, on Scholz's instructions, have his salary decreased by $30,000 per annum.
Bryan continued his employment for a couple of months before going on stress leave. An application for workers' compensation was rejected. Subsequently on re‑entering the workforce he was offered a sum of money to resign which he accepted. At the time of the reduction in salary he sought advice from Chapman who to talk to in HR but was advised the company did not have a HR department.
Under cross‑examination Bryan firstly gave evidence regarding discount arrangements entered into by Scholz where a ceiling fan that wholesaled at $49 was offered at $25 [Transcript p. 2‑80]. On becoming aware of price discrepancies in a number of orders he contacted Chapman who then elevated the issue to Scholz. The arrangement identified to a customer that he did not have the power to provide a better deal causing him to lose credibility and feel embarrassed [Transcript p. 2‑82]. Bryan had no personal knowledge of Scholz undertaking meetings of this nature with customers [Transcript p. 2‑83]. On the allegation that he heard Scholz on a telephone hook‑up say that they needed to get rid of him because he was fat and smoked it was Bryan's evidence Scholz had admitted making those comments at a previous hearing [Transcript p. 2‑85]. Bryan said he had tended to grow up as the subject of these types of comments but did not expect it in the business world [Transcript p. 2‑85]. In the third month of his sick leave he was given verbal confirmation that Halvorson had been appointed to look after the HR stuff [Transcript p. 2‑85]. He accepted that at the end of his employment his sales budget was running at around 40 per cent.
In re‑examination he gave evidence that when made aware that Halvorson was to look after HR he made the assumption that Halvorson would look after all HR dealings going forward.
Regulator
Scholz
Scholz, the Managing Director of Scholz Industries, gave evidence regarding the company structure including the acquisition of companies including MMS that had been owned by Chapman and his wife. As a condition of the sale he was obliged to enter into a contract of employment whereby Chapman was provided with a five year term of employment. An employment contract was prepared by Chapman's Lawyers which led to him subsequently becoming the Executive General Manager for the electrical division. The role was that of a standard CEO role being responsible for a team of people, sales, marketing and ultimately the financial health of the business, reporting directly to Scholz.
Chapman's role initially included the Regional Sales Manager having to report him however as their role evolved Scholz took the decision that they would report directly to him with the day‑to‑day sales responsibilities remaining with Chapman.
At the time of the acquisition of MMS and another business Halvorson joined the business as the Chief Financial Officer also assuming the duties in respect of HR and payroll. There was a position of Executive General Manager for marketing and product innovation that was held by Calabro who was based in Adelaide but spent about 40 per cent of his time in Melbourne.
Scholz in conducting the business operated mostly out of Melbourne with the amount of time spent in Brisbane being minimal. Executive meetings were held in Melbourne always within business hours. There were never expectations for Chapman to do anything unrealistic after hours although at times customers had after hour's functions. Communications were conducted with Chapman via email, telephone or text and would have been very rare for him to have rang after 6.00 pm although on occasion there may have been an emergency arise if he was travelling. Emails were sent at odd hours due to his overseas travel although there was no expectation of anyone reading an email at midnight or responding to an email half an hour later.
With regards to client meetings it was Chapman's responsibility to negotiate and deal with customers in the electrical business and as Scholz had involvement with eight other companies he never had the time to engage directly with clients. There were never meetings behind the scenes without Chapman being aware and there was a requirement to document the details of all meetings. Pricing was done through a price book which was computerised, for which Chapman had responsibility.
The business employed at one time an Operations Manager by the name of Frank McCarthy (McCarthy) who took responsibility for a couple of businesses during which time he introduced a number of practices into the company dealing with:
· behaviour;
· conduct;
· recruitment; and
· compliance.
Additionally he set up an occupational health and safety team which was located in Melbourne.
On 14 May 2013 Scholz after discussions with Chapman made changes that required the Regional Sales Managers to report to him directly as there were some issues with some team members. The responsibility of sales remained with Chapman in what was described as a "matrix structure".
Scholz denied he had directed Chapman to terminate the employment of Bryan for reasons namely that he was fat and a smoker. There were issues with Bryan's sales (which were terrible) and he had previously been performance managed by Chapman. The business in South Queensland was losing money and they needed to get it working. Customers complained about Bryan's performance and the sales continued to deteriorate. Bryan had a number of personal issues prior to joining the company. He subsequently resigned at which time an ex grata payment was made to him due to concerns about his financial position. Prior to his leaving the business his position had changed and his salary had been reduced as an alternative to dismissing him. Scholz had never discussed that due to Bryan being fat and a smoker his employment should be terminated. On the allegation of making such comments in a phone hook‑up Scholz stated that would not have happened. At the time of Bryan's departure no emails were removed from his computer nor was there a discussion with Chapman about that issue.
The allegation that on 17 October 2013 he had unilaterally changed Chapman's employment contract by amending the composition of an annual non‑discretionary bonus payment it was Scholz's evidence that the employment contract was never changed and the bonus calculation was on the correct commission rate. Chapman disagreed with the calculation although acknowledging it was "probably the right formula" but was not aware of the change. It was eventually left as it was with adjustments to be made into the future. The issue was dealt within days of it being raised and co‑ordinated by Halvorson.
The claim that on 14 January 2014 he had failed to provide the necessary budget information to Chapman so he could plan realistic targets and outcomes for a presentation on 17 January 2014 and then criticising his presentation was responded to by Scholz giving evidence Chapman had access to everything that was ever produced relative to the electrical division but not information pertaining to all parts of Scholz Industries. Access was available to Chapman on the mainframe computer system which contained all the information required by Chapman. In past years Halvorson in conjunction with Chapman had managed the budgeting process. There was never an occasion when information was not available and Chapman's office was next door to Halvorson.
Scholz in terms of the email of 28 January 2014 [Exhibit 11] indicated it was the culmination of multiple discussions around many issues and contained an offer to sit down and work through the issues to end up with the right outcome. At the time there were many performance issues in the business and it was not improving so he finally decided to put something in writing which he would normally have avoided. The purpose of the warning was to highlight the critical nature of what was happening at the time.
Scholz gave evidence of the alleged incident said to have occurred in Perth on 12 February 2014 at the Rendezvous Hotel where after dinner a few of the participants stopped to have a drink at a bar in the hotel. The discussion at some stage went to the Sales Representative of the year which he stepped back from as he felt it was not his call to make. He denied having in an aggressive manner said to Chapman "Fuck you, pal" or pointing his finger in a threatening manner. He further denied making the comment to Chapman:
"Fuck you, pal. You're so far off the mark. This is a man's trip and there'll be no woman winning it".
Scholz claimed that would have been a ridiculous thing to say as on occasions customers had brought their partners on these trips. Also the Sales' Representatives were over 50 per cent women and the person who won the award that year was a lady from Victoria.
There was a further denial regarding the comment alleged to have been said by him that:
"This will be for a bloke that can drink a lot of alcohol and do a lot of fucking with customers to show them a good time."
Scholz thought the discussion took place around 11.00 pm and acknowledged he sent Chapman an email in the early hours of the morning indicating he was unhappy with his contribution in that he had failed to present critical information that was important and of wanting to discuss the issues with him the following morning so that there could be some final alignment as to handle the final day of the visit. There had already been a pre‑arranged meeting in the morning and he wanted to have a chat prior to that meeting. As it turned out through no fault of Chapman's they were not able to meet. Chapman went on sick leave following the Perth trip.
Under cross‑examination Scholz accepted that to remove the reporting of State Managers from reporting to the Executive Officer to whom they reported without telling him would be industrially unfair and he would never do that [Transcript p. 2‑104]. Prior to changing the reporting of the State Managers he had a discussion with Chapman about the changes and the reasons why, with Chapman saying he was perfectly comfortable and words to the effect "you own the business". He further understood his responsibility as Executive General Manager had not changed. The reasons discussed with Chapman was the fundamental change in the business with the introduction of logistics and the need to lift sales performance [Transcript p. 2‑105]. There was also an issue where one of the Regional Managers had left because they would not work with Chapman [Transcript p. 2‑105].
Scholz could not recall when he spoke to Chapman about the change to reporting but it was prior to the email of 14 May 2013 which said the changes were "effective immediately", probably about a week before [Transcript p. 2‑106]. Scholz indicated he probably had notes of the meeting in a handwritten book that was in Melbourne [Transcript p. 2‑107]. His lack of experience in matters such as this was the explanation for not having his diary available for these proceedings [Transcript p. 2‑108].
Three of the managers at that time were not happy with Chapman with regards to his inappropriate behaviour and one had complained of being bullied. There had been a number of serious complaints about Chapman over time having been made on multiple occasions. Chapman was asked by Scholz to apologise to two members of the marketing team [Transcript p. 2‑109].
Halvorson had initially evolved in to the HR role as he understood HR matters and whilst he was a qualified accountant he had "common sense" [Transcript p. 2‑110]. At the time Chapman left Scholz Industries Halvorson was the designated HR Officer [Transcript p. 2‑110]. Scholz was unable to provide documentation regarding Halvorson's appointment as the HR Officer [Transcript p. 2‑111]. A practice and procedures document had been developed by McCarthy to ensure the company kept up with latest rules and regulations. Scholz could not recall if the pack contained a grievance procedure but the recommended approach was for staff to talk to their managers [Transcript p. 2‑112]. Scholz was unable to give evidence that there was a bullying policy or procedures for handling grievances or disputes prior to the Fair Work Australia hearing [Transcript p. 2‑112]. Scholz was taken to a Fair Work Commission Form (dated 14 May 2014) [Exhibit 29] in which he had sworn his business had no bullying policy or procedure for handling grievances or disputes [Transcript p. 2‑113].
On having telephoned Chapman around meal times expecting to have a conversation, it was his evidence that 95 per cent of all communication would have been within working hours, depending upon whether they were travelling. The same applied to emails and texts [Transcript p. 3‑2]. There was never a demand for response immediately to emails. Scholz was taken to an email [Exhibit 3] which had been sent to Chapman by him at 12.39 am on 23 January 2014 from Melbourne which according to him was critical of Chapman's performance which was significantly below par and contained a written warning. At the time he had felt the need to put his concerns in writing [Transcript p. 3‑4].
On the subject of the written warning he had raised with Chapman on a number of occasions concerns about his performance and Chapman had continued not to perform as he should have in his role as a manager in the business. There had been no other written warnings [Transcript p. 3‑5]. Some six months prior to the issuing of the written warning there had also been discussions about specific issues around Chapman's performance [Transcript p. 3‑6]. Scholz conceded the written warning sent to Chapman in the early hours of the morning was something likely to cause him concern [Transcript p. 3‑7]. He had given no thought to the timing of the email as he was quite concerned with what had happened earlier in the day [Transcript p. 3‑7].
Scholz believed that an email was a passive form of communication but that an SMS was closer to a telephone call [Transcript p. 3‑8]. On the presentation given by Chapman in Perth according to Scholz it varied from the presentations given earlier in other States as each presentation was tailored around the regions [Transcript p. 3‑10]. Scholz refused to accept the presentations in all States were the same except for a change in local figures although he conceded there were a number of similar components [Transcript p. 3‑11]. There were no issues raised with Chapman with regards to the Melbourne and Brisbane presentations [Transcript p. 3‑11]. The next presentation was to be in Sydney in some seven days' time yet it was, according to Scholz's evidence, crucial that he appraised Chapman of his deficiencies by email at 12.44 am and followed up with an SMS at 12.45 am [Transcript p. 3‑12]. Both forms of communication were related and Scholz agreed it would be reasonable for the recipient to assume that to be the case [Transcript p. 3‑13]. Despite requesting a meeting with Chapman at 7.00 am on 13 February 2014 because of a number of circumstances, Scholz made the judgement not the have the meeting [Transcript p. 3‑14]. He denied having consumed a considerable amount of alcohol prior to sending the email [Transcript p. 3‑15].
Scholz denied he called on clients on a one‑on‑one basis to discuss business in relation to orders and product with the responsibility for sales and clients resting with Chapman. If there was any interaction at all Chapman was advised on outcomes if there was to be any impact on the business [Transcript p. 3‑16]. He denied doing a deal with the Middendorp Group where he reduced the price on ceiling fans from $49 to $25 [Transcript p. 3‑17]. Acknowledged was a rebate he put in place with Lighthouse for LED downlights said to have occurred in the early days of the business and Chapman was made aware of the arrangement [Transcript p. 3‑17]. There was no recall of dealings of a similar nature with BGW [Transcript p. 3‑18] nor meetings with Hagemeyer Electrical [Transcript p. 3‑19].
The business purchased from Chapman (MMS) delivered about 30 per cent of Scholz Industries' revenue and was an important part of the business with Chapman empowered to run MMS and the electrical division as it grew [Transcript p. 3‑20]. Scholz accepted the email of 14 May 2014 disempowered Chapman by removing the report of his general managers by the introduction of a matrix management structure however he continued to have direct responsibility for the sales functions [Transcript p. 3‑20]. He continued to claim that he held discussions with Chapman prior to the decision but was unable to produce any documentation to support the claim [Transcript p. 3‑21]. It was not a fundamental change to Chapman's role as he continued to provide national sales management support and sales management [Transcript p. 3‑22]. The managers remained part of Chapman's team according to Scholz despite changes to reporting [Transcript p. 3‑23]. The move in effect removed some of the burden from Chapman and pushed it down to the managers [Transcript p. 3‑25].
After the removal of the reporting of the managers from Chapman Scholz conceded that he still held him accountable for sales figures in general [Transcript p. 3‑27]. Scholz described the meaning of the official warning given to Chapman as "a note to Mr Chapman spelling out numerous areas of concern, all of which culminated in the overall poor performance of the business. The business was making losses. So ‑ and he was the executive general manager" [Transcript p. 3‑27]. In a discussion with Chapman the next day he addressed the issues and with Chapman being aware of Halvorson's HR role he could have spoken to him about the warning [Transcript p. 3‑28]. The written warning was "a very clear statement that I [Scholz] was concerned about his performance in a number of specific…..things" [Transcript p. 3‑29]. The issues identified in the document had previously been discussed with Chapman on countless occasions [Transcript p. 3‑30]. Whilst he had an awareness there were processes where an individual could be dismissed for performance issues, dismissal though was something he had not contemplated [Transcript p. 3‑32].
On 3 February 2014 he met with Chapman and they reached agreement that the issues around his performance would be worked through with it being an open discussion and no friction between them [Transcript p. 3‑33]. There was no agreement that the official warning was not applicable and as such the warning was never revoked [Transcript p. 3‑34]. In hindsight he acknowledged he should have responded to an email from Chapman (dated 7 February 2014) in which Chapman had referred to the warning as being behind them and not applicable [Transcript p. 3‑34].
In the case of Bryan there had been a number of complaints about his performance of which Chapman was aware and there were also personal issues at play around his wife and other things. There was a process put in place by Chapman to help him get his figures up and improve the situation and a previous process that had failed to improve the situation [Transcript p. 3‑36]. At no time had Chapman said Bryan was a good salesman and Chapman did not know how to deal with the situation requesting that Scholz and Halvorson help him [Transcript p. 3‑37]. Bryan's role had been restructured which included a salary adjustment for the purposes of helping him without sacking him despite there being grounds for dismissal on performance [Transcript p. 3‑37]. In October of that year Bryan sent a note to both Chapman and Halvorson saying that for personal reasons he wanted to leave the organisation and sought a calculation of existing entitlements. Scholz reaffirmed earlier evidence that he had never expressed a view that Bryan was not a suitable employee because he was fat and a smoker [Transcript p. 3‑38]. No representations were made to Chapman about getting rid of Bryan but he had on multiple occasions instructed Chapman to get Bryan's performance up [Transcript p. 3‑39].
A review was carried out of the costs of the organisation which identified inconsistency between commissions paid to external parties for sales of MMS versus the internal people, so to be fair he asked Halvorson to look at it. A calculation was based on the profitability and the aligning of the commissions reduced the amount Chapman was to receive. After Chapman spoke to Halvorson about the situation Scholz reversed the decision to change and it was agreed there was a need to find a formula which delivered fairness [Transcript p. 3‑40]. The decision of Scholz was to change the percentage of the bonus without consultation with Chapman and was done unilaterally by him [Transcript p. 3‑41]. Scholz accepted the position expressed by Chapman that the bonus was part of his remuneration and the change to the commission structure from 5 to 11 per cent had made a difference to the bottom line of MMS and had dramatically reduced his bonus [Transcript p. 3‑42]. Scholz maintained there was nothing unreasonable in what had been done [Transcript p. 3‑43].
There were questions over the failure to provide appropriate documentation for the electric strategy meeting held in January 2014 when there had been a requirement placed on Chapman in relation to the whole of the group and for him to properly address the issue he was required to go beyond his normal area of operations. Such information was readily available through Halvorson who occupied the office next to Chapman [Transcript p. 3‑44]. The shared service team of which Chapman was a member were encouraged to contribute to other parts of the business [Transcript p. 3‑44]. At this meeting Chapman had failed to come up with one constructive strategy or plan that would have substantially improved the business [Transcript p. 3‑45].
On 5 February 2014 Scholz had sent an email to Chapman, Calabro and Hillhouse where he suggested some thought should be given to the criteria for the October Show in Hong Kong regarding eligibility, selection criteria prize and who selects in relation to the show. The issue, it was agreed by Scholz was to be discussed at the dinner in Perth [Transcript p. 3‑49]. When it was raised he recalled Chapman speaking about the issue but did not recall any comments from him that a woman may meet the criteria of being the salesperson of the year [Transcript p. 3‑49] although conceding he may have made such a comment that Scholz had missed due to a "noisy environment". He had no recall of Chapman remonstrating with him on the evening and he denied using the words "Fuck you, pal" in an exchange with Chapman [Transcript p. 3‑50]. On the subject of women his own two daughters worked in the business and the best representatives were women [Transcript p. 3‑51]. The sending of the email at 12.44 am and the SMS at 12.45 am on 13 February 2014 was admitted with Scholz not believing that that SMS was a "big impost" as they were already scheduled to meet at 7.30 am [Transcript p. 3‑51]. That morning Scholz recalled comments by Chapman that McCallum and Bender had no problems with the presentation by Chapman the previous day but in the circumstances he was not sure what else could have been said at that time [Transcript p. 3‑53].
Once again Scholz had decided to embark on an industrial relations path without regards for proper custom and practice, thus rendering the management action of sending the email at 12.44 am and the SMS at 12.45 am requesting a meeting the following morning sent immediately after the email as unreasonable management action taken in an unreasonable way.
Consideration of the Stressors
[257]The Commission having considered the stressors contained within the Statement of Stressors is satisfied based on the requisite standard of proof Chapman had not established that Stressors 1, 2, 4 and 7 fitted within the category of unreasonable management taken in an unreasonable way in connection with his employment and accordingly could not be considered as causative of the psychiatric injury. However in terms of Stressors 3, 5, 6 and 8 the evidence before the proceedings based upon the requisite standard of proof was sufficient to establish the management action of the employer had been unreasonable management action taken in an unreasonable way in connection with Chapman's employment.
[258]Whilst it has been determined that there was unreasonable management action at play in respect of Stressors 3 and 5, I have been unable to find that a temporal link existed between the conduct engaged upon and Chapman's diagnosed psychiatric injury. However in the case of Stressors 6 and 8 it is the opinion of the Commission that each of those particular stressors by the fact of their potential to have a detrimental impact on Chapman's immediate and long-term employment circumstances and the manner in which they were raised by the employer were major significant contributing factors to his psychiatric injury and more importantly directly proximate to the first medical intervention on 14 February 2014.
[259]The factual outcome that four of the stressors were not found to be unreasonable management action taken in an unreasonable way and that two were found to be unreasonable management action taken in an unreasonable way without a temporal link to Chapman's psychiatric injury does not preclude him from receiving compensation for a personal injury if the remaining two stressors were found to be major significant contributing factors.
[260]In the matter of Q-COMP v Hohn[12], Hall P stated:
[12] Q-COMP v Hohn (2008) 187 QGIG 139
"If indeed it was the submission of Q-COMP at first instance that once an injury was in any way touched by reasonable management action reasonably taken it is not compensable, I agree with the Commissioner (paragraph 3 at p. 666) that such a submission '...overstates the effect of s. 32(5).'. Indeed, in my view, the submission is inconsistent with Delaney v Q-COMP (2005) 178 QGIG 197. That case involved an appeal against a decision by an Acting Industrial Magistrate which teased out the transactions and events and concluded that Mr Delaney's adjustment disorder with mixed anxiety and depressed mood was attributable to a number of interactions with his superiors each of which constituted reasonable management action reasonably taken. There was a successful appeal to this Court. However, as is pointed out at [71, 015] by the learned author of Watson, Industrial Laws of Queensland (who appeared for Mr Delaney), Mr Delaney did not in that appeal challenge every finding that an interaction contributing (in some way) to Mr Delaney's decompensation was reasonable management action reasonably taken. One finding was allowed to remain in place on the appeal. In consequence, Mr Delaney was bound by the finding on the appeal. If the submission attributed to Q-COMP at first instance was correct, Mr Delaney's appeal should have failed. The appeal succeeded. The remaining finding of reasonable management action reasonably taken was treated by both parties as inconsequential so long as it stood alone."
Finding
[261]On consideration of the evidence, material and submissions before the proceedings the following findings are made:
· Chapman at all relevant times a "worker" pursuant to s 11 of the Act;
· Chapman sustained a personal injury in the form of a psychiatric nature pursuant to s 32 of the Act;
· the personal injury sustained by Chapman arose out of or in the course of his employment with Scholz Industries with the employment being the major significant contributing factor to the injury; and
· the operation of s 32(5) of the Act in relation to Chapman's personal injury is not excluded on the basis that Stressors 6 and 8 were found to be unreasonable management action taken in an unreasonable way by Chapman's (then) employer in connection with his employment.
[262]The Appeal is upheld and the decision of Simon Blackwood (Workers' Compensation Regulator) of 27 October 2014 is set aside. The claim for workers' compensation is one for acceptance.
[263]The Regulator is to pay the Appellant's costs of and incidental to this Appeal.
[264] I order accordingly.
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