Clifford v the Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Clifford v the Workers' Compensation Regulator [2016] QIRC 061
PARTIES:	Clifford, Christopher (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/197
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	27 May 2016
HEARING DATES:	16, 17, 18 and 19 November 2015
HEARD AT:	Townsville
MEMBER:	Industrial Commissioner Black
ORDERS:	1. The Appeal is allowed; 2. The decision of the regulator dated 22 June 2015 is set aside and substituted with a decision that the claim is one for acceptance; 3. Costs are reserved.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - psychological injury - whether employment the major contributing factor - whether management failures amounted to unreasonable management action.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5), s 550
APPEARANCES:	Mr A. Collins, Counsel, instructed by Rapid Legal Solutions for the Appellant. Mr A. B. Johnson, Counsel, instructed by the Workers' Compensation Regulator, the Respondent.

Decision

Introduction

Christopher Clifford ("the appellant") appeals a decision of the Workers' Compensation Regulator ("the regulator") dated 22 June 2015 in which the regulator refused to accept the appellant's claim for compensation. The appeal to the Commission is conducted by way of a hearing de novo.

The appellant was employed by Woolworths Limited as a Safety and Asset Protection Investigator at the time his injury was sustained. In his application for compensation dated 10 October 2014, the appellant described his injury as "Workplace Stress/Depression Mental Condition". He said that the condition arose out of his treatment in the workplace by his line manager, Ms Kym Brumby. He decompensated following his participation in a review meeting with Ms Brumby on 22 May 2015. He never returned to work following this event and he was subsequently made redundant on 21 August 2015.
The appellant had been employed by Woolworths for approximately 26 years. Prior to a restructure of the organisation in 2013 he had been employed as Investigations and Protections Manager (North Queensland). After the restructure his position was designated as "Safety and Asset Protection Investigator". He had been based in Townsville since 1990.

The regulator conceded that the appellant was a "worker" pursuant to the relevant provisions of the Act, however it did not accept that his psychological injury arose out of his employment or that his employment was the major significant contributing factor to the injury. The regulator also maintained that if the injury were deemed to fall within s 32(1) of the Act, it would nevertheless be removed from s 32(1) by virtue of the operation of s 32(5) of the Act.

Evidence

During the course of the proceedings, evidence was provided by seven witnesses. Kym Brumby and Jason Lowe gave evidence in support of the regulator's case while the witnesses for the appellant were as follows:
§Christopher Clifford
§Scott McLean
§Dr Michael Likely
§Michael Sorrensen
§Deborah Olive

Statement of Stressors

The appellant's statement of stressors was filed on 20 August 2015 and included reference to nine stressors. The regulator submitted that stressors 7, 8, and 9 should be excluded from consideration. It was put that these matters postdated the date of alleged decompensation and brought no probative value to the proceedings. It was also submitted that the appellant did not adduce evidence in relation to these stressors. I concur with the regulator's position in that the matters canvassed in stressors 7, 8, and 9 are not relevant to the determination of the appeal and will consequently be excluded from consideration. The relevant stressors, as described by the appellant, are set out below:

No. Date Event

1. 18 November 2013 to 17 December 2013
My Manager, Kym Brumby provided me no direction, support or assurance following reporting a situation to her of which I found distressing. In a meeting following my initial reporting of the situation she told me she would "contact me in the next few days to discuss".

Upon not receiving any further information from her I followed her up including the HR Manager (who had been at the original meeting and was aware of the situation) and his Manager to which she in turn responded in a blunt tone.

2. 7 April 2014 In a meeting with my Manager, Kym Brumby, she accused me of not bringing KPIs which I note had not been in use at Woolworths for 18 months previously. Upon talking to other co-workers following this meeting, they confirmed that they had not been asked by Kym Brumby to provide these documents. Kym Brumby also did not discuss my performance over the July- December 2013 period for which she was not my manager which I had prepared for and brought details of to the meeting. Kym Brumby then accused me of breaching confidentiality in relation to the above "speak up" matter and gave me no details or a chance to respond. She was confrontational in the meeting and did not acknowledge that I was given no direction from her as to what was expected of me. She also accused me of not arranging my time on a trip to Brisbane in my role as Investigator when I had made arrangements to spend time with another Investigator based in Brisbane but I was not given a chance to speak about this.

3. 8 April 2014 At a follow up meeting my Manager, Kym Brumby, treated me different from others and she would not allow me to explain or talk to her when I tried to speak to her further about the accusations she raised regarding the breach of confidentiality the day prior. She further told me to hand over a matter I was working on to another Investigator which confused me and I was unable to speak to her further about this. She also criticised my 30/60/90 days plan despite my basing it closely on a co-workers plan which had received positive feedback from Kym Brumby.

4. 10 April 2014 My Manager, Kym Brumby, embarrassed me in front of my peers at a team meeting by saying in a demeaning tone "can you remind me why I hired you."

5. In or about 15 April 2014 My Manager, Kym Brumby, contacted me and was agitated and appeared upset with me and told me she didn’t understand where I was up to in the investigation at our last meeting and wanted to give the Investigation back to me. I told her that I tried to tell her and she told me that it was up to me to challenge her on matters like that.

6. 22 May 2014 My Manager, Kym Brumby, during a one on one telephone link treated me unfairly. She spoke to me in an aggressive tone sending quick one after the other accusations at me and made untrue assertions to my work performance. She provided me with little or no supporting evidence or an opportunity to answer.
Injury

Whether the appellant sustained an injury pursuant to the Act was contested by the regulator. Section 32(1) of the Act relevantly, and for the purposes of this appeal, provides that an injury is a personal injury arising out of, or in the course of, employment if, for a psychiatric or psychological disorder, the employment is the major significant contributing factor to the injury. It was the regulator's submission that the appellant's employment was not the major significant contributing factor in the development of his psychological condition.

The medical evidence bearing on the matter for determination comprised the medical records of the Fairfield Waters Medical Centre which were tendered with the consent of the regulator (Exhibit 9), a report prepared by a Consultant Psychiatrist, Dr Michael Likely (Exhibit 10), and the evidence in the proceedings of Dr Likely. The regulator's position was based on the following propositions:
(i)Dr Likely's opinion was formulated on incorrect history;
(ii)At the time of assessment of the appellant by Dr Likely, the appellant's adjustment disorder caused by events in May 2014 should have resolved;
(iii)Multiple stressors contributed to the development of the appellant's psychological condition including bankruptcy, a tumour, and family tension;
(iv)A pre-existing or underlying depressive disorder was also a contributing factor.

The regulator questioned the probity of Dr Likely's report on the basis that any conclusions formed were based on an incorrect history. The history relied on by Dr Likely in forming his opinion or diagnosis was in part provided by a briefing note forwarded to Dr Likely by the appellant's solicitors. It was unsurprising that the briefing note incorporated the appellant's version of events, but so to would have any oral history provided by the appellant on the day of the examination. Whether, and to what extent, Dr Likely might have acted on a wrong history was a matter to be explored in cross-examination.

The regulator also advanced the substantive proposition that the report and the evidence of Dr Likely did not support a finding that the employment was the major significant contributing factor. The submission was that the report was only able to provide a limited nexus between the appellant's injury and his employment. Further in asserting that the employment was not the major significant contributing factor, the regulator relied on a concession by Dr Likely that factors other than the employment could also amount to major significant contributing factors in terms of the development of a psychological condition (T2-12):
"Is it possible, doctor, that those two factors, in conjunction with an observation that he has been probably depressed for 18 months, could also be major significant contributing factors to the symptoms that he was expressing?‑‑‑Absolutely, yes. And certainly in terms of bankruptcy."

The proposition that multiple stressors, including a pre-existing condition, had contributed to the development of the appellant's injury was based on entries in the medical records of Dr Murray (Exhibit 9). The entries of interest, which were included in the notes of the consultation on 26 May 2014 or on 10 June 2014, are reproduced hereunder:
-     Recent ov tumour and bankruptsy
-     prob depressed for 18mo
-     probs c 15yo daughter amotivated
Dr Murray was not called to give evidence and the medical records tendered did not include records of consultations prior to 31 October 2013. An expansion of the evidence in either area may have helped resolve the question of whether the appellant had been treated for depression prior to 26 May 2014.

While the consultation records extended forward from 26 May 2014 and up to 23 January 2015, and included 13 consultations, no further entries were made which bore any resemblance to the topics of tumours, bankruptcy, family tension, or a pre-existing depressive condition. Some stress in family relationships was canvassed in the report of Dr Likely but these issues were a result of the appellant's decompensation, not a cause of the decompensation.
The abbreviated medical records of Dr Murray alone cannot sustain the regulator's position on "injury". The possibility that the appellant had been declared bankrupt, had a pre-existing depressive condition, or that he (or someone else) had suffered a tumour could not be resolved to the required level of satisfaction unless Dr Murray gave significant supporting and explanatory testimony or unless the appellant made significant concessions when giving his evidence in the proceedings. However no such concessions were solicited from the appellant and none were made.
While the regulator has failed to establish that the appellant's injury was causally related to events unrelated to employment, it is for the appellant to establish that his employment was the major significant contributing factor to his injury. In this regard the appellant relied on the medical records of at least some of the appellant's attendances on the Fairfield Waters Medical Centre and on the report and evidence of Dr Likely. The evidence of the appellant, Ms Olive, and Mr Sorrensen, is also relevant to a consideration of whether the appellant decompensated following his meeting with Ms Brumby on 22 May 2014 and whether any injury sustained should be attributed to factors associated with his employment.
The regulator questioned Dr Likely's diagnosis on the basis that he had assessed the appellant more than six months after the adjustment disorder was sustained and at a point in time when the disorder would have been expected to have dissipated. However it was Dr Likely's evidence that the appellant was still significantly symptomatic at the time of the assessment on 7 April 2015 and that all work related stressors had not be removed at that time. It was his evidence that (T2-10):
" … I think it’s worth pointing out that, as outlined in my report of the 7th of April 2015, that Mr Clifford had, or at least told me, that throughout his life he had been – he’d held down gainful employment and had derived a lot of his self-image and pride and self-worth on his performance at work. He certainly didn’t give me a history of any prior problems in the work touching before the issues discussed in my report. So that, whilst ceasing work on the 22nd of May 2014 may be seen as the cessation of the stressor, he was still left, you know, without work and symptomatic with both symptoms of depression and anxiety. So, if you like, the stressor was still there in terms of the consequences – the psychological consequences that Mr Clifford had because he prided himself on his work ethics throughout his life."
It was Dr Likely's opinion that the appellant's psychological injury was causally related to the appellant's employment. He diagnosed the appellant with an "adjustment disorder with mixed anxiety and depressed mood as a result of work related stressors". In his report Dr Likely said that the appellant told him that "he had never before experienced any disturbance in his mental health nor was he aware of any family history of mental disorder", while in his evidence in the proceedings he said that (T2-16):
" … what I was just read is consistent with my contention that the stressors, which were experienced by Mr Clifford in the work place, has had such an apparently clinically significant effect on his life because much of his self-esteem and self-image has been defined by his work performance and work ethic throughout his working life."
There was no medical evidence adduced contradicting Dr Likely's diagnosis of a psychological injury, nor was any sufficiently substantive evidence adduced to contradict Dr Likely's opinion that the injury was causally connected with the appellant's employment and that the employment was the only significant contributor to the development of the injury.

I am satisfied, after consideration of the evidence in the proceedings and the submissions of the parties, that the appellant has sustained a psychological injury, that his injury was causally connected with his employment, and that the employment was the major significant contributing factor to the development of his injury. Consequently, the outcome of the appeal turns on whether the appellant's injury is withdrawn from s 32(1) of the Act by virtue of the operation of ss 32(5)(a) and (b) of the Act. Any determination about reasonable management action is to be resolved by reference to a consideration of the issues which arise out of or are related to the stressors nominated by the appellant.
The 2013 Restructure

Woolworths announced a major organisational restructure in July 2013. It was understood that significant redundancies would be a product of the restructure. Ms Brumby agreed (T4-17) that the restructure would bring about "massive changes" to both Woolworths in general and loss prevention departments in particular. It was a challenging and stressful time for all in the organisation as acknowledged by Ms Brumby in her evidence (T4-17):

"MR COLLINS: No one was comfortable at the end of 2013, were they, in the whole organisation? People didn’t know whether they were going to get jobs. People didn’t know whether they would be in the organisation. Managers undoubtedly would have been concerned about they needed to deal with people who may very well not handle that news well. You would agree with that, wouldn’t you?‑‑‑Yes.
Yes. It was a very, very difficult time for the organisation?‑‑‑Yes, it was."

It was Ms Brumby's evidence that 25 per cent of the loss prevention team lost their jobs in the restructure. Further, current staff had to apply for jobs in the restructured organisation, a factor which led to competition among co-workers for positions. She said that the new shared services structure was focussed on prevention and relied on very detailed root cause analysis to mitigate risks going forward. It was her evidence that (T3-29):

" … one of the big directions that we had in the Shared Service was to really step up those investigations and really be able to get to the root cause so that we could stop those things, or at least reduce them going forward."

The potential for morale to be negatively impacted and for performance standards and commitment to fall was addressed in a memorandum to staff in August 2013 from the national manager for risk and asset protection (Ms Flynn). The memorandum exhorted staff to stay positive, to maintain performance standards and warned against unproductive work practices. It also encouraged staff to report unprofessional or inappropriate conduct.

Prior to the 2013 restructure, the appellant held the role of Investigations Manager for North Queensland for safety and loss prevention issues. He said that safety had been added to his portfolio in late 2012, however he was not given any specific training in the area and he had not been required to conduct many significant safety investigations. He was assisted by an Investigations Officer (Ms Olive) and reported to Mr Jason Lowe who was his line manager based in Brisbane. The appellant was responsible for about 45 supermarkets across the North Queensland region, including Cairns, Mt Isa, Mackay and Townsville. The shift to a shared services model where loss prevention and safety responsibility was exercised across all Woolworths divisions, not just the supermarket division, had been commenced in an earlier restructure in late 2012. The involvement in other divisions was demonstrated in the record of his June 2013 performance appraisal which is in the evidence as Exhibit 5. Under the shared services regime the appellant was responsible for stores in all of Woolworths divisions including supermarkets, hardware, liquor, petrol, and Big W.

The appellant was interviewed for a position in the new structure by Ms Brumby and Mr Kennedy from the state human resources department on 29 October 2013. A competitor for a position in the new structure was Russell Wrench who prior to the restructure held the Townsville based position of Preventions Manager. Both Mr Wrench and the appellant worked in the same open plan office area in a Woolworths office in Townsville. The appellant was informed on 18 November 2013 that he had been successful in securing a position as a safety and asset protection investigator. While Mr Wrench was unsuccessful in this round of applications he subsequently secured a role in the liquor division of Woolworths and as a consequence relocated to an office in a different location in Townsville. The appellant had known and worked with Mr Wrench for about 20 years.
During the proceedings the appellant posed the question that some explanation needed to be found for the relatively quick and substantial deterioration in the appellant's standing in the Woolworths organisation that led to his decompensation. The explanation promoted by the appellant was that the appellant's injury was caused by a change in the appellant's line manager and the subsequent conduct of the new line manager (Ms Brumby) including the taking of decisions that negatively and unreasonably impacted on the appellant's psychological well-being. The impact of the restructure on the appellant however extended beyond a change in line manager and included:

(i)The investigation and response of lower severity incidents (severity three and four) was transferred to the operations. That is, local store managers assumed the responsibility for investigating and responding to these events;
(ii)It was the appellant's responsibility to train store based staff on how to investigate and respond to low severity events;
(iii)The appellant's role was consequentially focussed on higher severity incidents. This led to an emphasis on more detailed analytical work and the development of written recommendations promoting solutions which might prevent further incidents;
(iv)The appellant was required to perform the dual role of asset protection and safety. He was the only investigator reporting to Ms Brumby who was required to exercise a dual role;
(v)The appellant was to discharge his role without the support of an investigation officer. The person assisting him in his pre-restructure role had been retrenched and was not replaced.

The change in reporting line took effect in August 2013 when Ms Brumby notionally replaced Mr Lowe as the appellant's line manager. In practical terms Mr Lowe's supervision of the appellant ended in June 2013 and while Ms Brumby had been appointed as the manager of the shared services section relevant to the appellant in August 2013, the appellant did not secure a place in the Ms Brumby's team until 18 November 2013. In the circumstances Ms Brumby's contact with the appellant was limited until January 2014 when her new team had been assembled and she had relocated from Sydney to Brisbane to run the section. The appellant decompensated on 22 May 2014 and never worked for Woolworths after this date.
Mr Lowe presided over the appellant's last performance appraisal under the old structure. This appraisal was conducted on 19 June 2013. In his evidence Mr Lowe said that the appellant possessed a very high sense of integrity. When asked if the appellant was a good and useful employee and whether he trusted the appellant he replied "very much so". In the appraisal Mr Lowe commented that the appellant was a "great asset to the team and has built some very solid relationships with other divisions he is unfamiliar with". Mr Sorrensen, who had been the appellant's direct line manager at an earlier time, said (T3-9) that the appellant was an excellent employee and that this rating was reflected in his performance reviews. Ms Olive, who was the appellant's long serving assistant, also spoke very highly of the appellant.
Dual Role
The appellant was the only asset protection investigator who assumed a dual role of asset protection and safety. Ms Brumby said that the reason that the appellant was offered a dual role was because there was not enough incidents of one type or the other to warrant two specialist roles in Townsville. It was also relevant that the appellant had, in his pre-existing role, completed safety investigations.

The appellant had completed an ICAM course which was a two day course providing a methodology to facilitate the completion of investigations including training on root cause analysis. The appellant said in an email dated 27 February 2014 (Exhibit 15) however that he had only completed about four ICAM investigations over the past 12 months. He gave consistent evidence in the proceedings saying that since safety had been added to his role in late 2012, he had only responded to three or four significant safety incidents. It followed therefore that his proficiency in the safety area was limited.

The effect of the appellant's evidence (T2-69) was that while the ICAM training and access to Ms Monk's specialist knowledge helped, the safety area was a specialised area that requires more training than the ICAM training to achieve specialist knowledge. His view in this regard was supported by the job description for a "risk shared services safety and health investigator" (Exhibit 12) which provided that it was essential that an incumbent have 5-10 years practical experience in the investigation of safety incidents and risk, and stated that tertiary qualifications in a safety related field was desirable.

The appellant also claimed that in the application of a root cause analysis, a lot more was required for a safety investigation than there was for loss prevention or asset protection events. Mr McLean also distinguished between loss prevention and safety when he said in his evidence (T2-116) that "root cause was often the basis of a safety report, not so much an asset protection report".

It was not in dispute that the appellant required significant additional training in the area of safety. This had been emphasised by Ms Brumby in her discussions with the appellant about his work plan for the week in Brisbane in April 2014. She had also criticised the omission from the 30/60/90 day training plan prepared by the appellant of more detail relevant to what was needed to ensure he upskilled his knowledge in the safety area (T3-72). Finally Ms Brumby had canvassed the issue with the appellant in an earlier email exchange on 27 February 2014 (Exhibit 15):

" … I could not remember if you had the 'formal' training – I know we are certainly hitting the ground running for you with safety, but sometimes that is the best way to go … Just keep doing what you are doing and liaising with Nicole as you have been and as soon as we get a senior safety investigator, I can get them to plan some training and development for you as a priority."

Complaints

The appellant lodged an anonymous "Speakup" complaint on 3 October 2013 and subsequently filed a written complaint about the same matter directly with Ms Brumby on 15 November 2013. The Speakup complaint made by the appellant may have been prompted by an earlier memorandum distributed by Ms Flynn, the head of the asset protection team, on or about 9 August 2013. The memorandum referred to concerns about "standards of behaviour" and directed recipients to perform the "expected hours", to ensure co-workers knew of their whereabouts, and to ensure that they were "contactable at all times when not in the office".

The memorandum also encouraged staff to surface concerns by saying "one part of being professional is to also discuss issues and areas of concern in an appropriate way". Finally the memorandum gave advice on the available channels through which concerned staff should communicate. The options set out were firstly to inform the line manager, then if that were not appropriate to inform the state manager and if this was not the preferred course, to inform human resources. The memorandum then drew attention to a different communication channel and informed the reader that matters of concern could be communicated through the "Speakup line". The Speakup line was said to be "for people including suppliers who feel that they are unable to raise a concern with anyone in the chain of management".

The memorandum was particularly directed at staff who tended to work in an unsupervised setting. It referred to roles which give "flexibility and freedom" about work location and dealt specifically with "work from home" arrangements. I think that it can be safely inferred that the memorandum served a number of purposes including that:

(i)It was a warning to staff to maintain performance levels notwithstanding the uncertainty about their future in the organisation;
(ii)It was an encouragement to staff to report questionable behaviour.

The appellant did not have a line manager when he decided to lodge a complaint and preferred to complain anonymously rather than take up his complaint with management outside his chain of command, or with HR. The complaint alleged that another Townsville based manager, Russell Wrench, had breached the corporate code of conduct by engaging in non-work activities during work-time. The appellant had an expectation that the complaint would be investigated and resolved within a reasonable period of time. However, while the complaint was anonymous, when he was unable to discern that any action had been taken against Mr Wrench, or that some form of investigation had taken place, he elected to renew his complaint using a different channel.
At 6.18 pm on 15 November 2013, the appellant emailed his line manager, Ms Brumby, and enclosed a copy of a statement he had prepared which detailed his allegations against Mr Wrench and provided information about an investigation that he had conducted for the purpose of supporting or substantiating his complaint.
While the appellant did not refer in the email to his earlier Speakup complaint, Ms Brumby's reply indicated that she was aware of the earlier complaint. Her evidence was that, Mardi Walker, a corporate HR officer had informed her of the Speakup complaint and that it had been agreed that this complaint would be investigated by the corporate human resources department. In her response to the appellant Ms Brumby expressed support for his decision to make the complaint and assured him that the "supporting evidence will be taken very seriously". In her evidence in the proceedings, Ms Brumby said that she immediately passed on the appellant's complaint to both Ms Walker and to Justine Robbins, her line manager.
The appellant accepted that his complaint was directed at a co-worker who was expected to be a competitor for a position in the new structure. He was conscious of the possibility that he would be accused of using the complaint process to his advantage in a competitive situation. In the email that accompanied his complaint to Ms Brumby (Exhibit 3) he wrote that "I am concerned about the timing of this statement given the current restructure and forthcoming announcements. I can assure you that there are no other ulterior motives for raising this matter."

Notwithstanding his denial, the appellant's motivation attracted attention in the proceedings. The not unexpected suggestion aired was that while the appellant had known about Mr Wrench's aberrant behaviour for some time, he did not act to draw attention to the behaviour until a point in time when both he and Mr Wrench were competing for the same job in the new organisation structure. Additionally, he had elected to renew his complaint directly with Ms Brumby only a few days before the names of successful candidates were to be released. Given the timing, it was suggested that the appellant's motivation was more to do with discrediting an opponent than in improving the effectiveness of the organisation. In my view however the temporal connection with Ms Flynn's memorandum and the coincidence in the misconduct described in the memorandum and Mr Wrench's alleged conduct, supports a conclusion that the decision by the appellant to lodge his Speakup complaint was positively influenced by Ms Flynn's memorandum and that the complaint may not have been made had this communication not been issued.
Ms Brumby and a state based human resources officer, Mr Kennedy, met with the appellant in Townsville the following Monday, 18 November 2013. In this meeting the appellant was informed that he had been successful in winning a position in the restructured organisation. He became aware later the same day that Mr Wrench's application had been unsuccessful. The meeting with Mr Kennedy and Ms Brumby had also touched on the subject of the appellant's complaint. Ms Brumby told the appellant that his complaint would be investigated and that she would get back to him about the matter. Further it was Ms Brumby's evidence that she told the appellant that HR had carriage of the investigation, and that any feedback about the matter would come from HR. She said (T4-20) that she "had asked HR to ensure that Chris was updated". It is not clear whether Ms Brumby, in referring to human resources, distinguished between the state department and the corporate office.
As it transpired, the appellant had not received any feedback about his complaint from either HR or Ms Brumby by 11 December 2013. In this regard Ms Brumby acknowledged that she did fail to get back to the appellant after the 18 November 2013 meeting, acknowledged that some form of communication should have occurred, and said that she was surprised that HR had not made contact with the appellant. Her evidence about the matters included the following (T3-41):

"So the 11^th of December of 2013, there’s an email there. Can you recall what you were doing or ‑ ‑ ‑?‑‑‑I don’t recall, but I probably – I probably was a bit taken back that there hadn’t been anything go back from HR back to Chris at that stage, even, you know, just a bit of a check in."

Nothing may have turned on the failure of communication had Mr Wrench's exit from the organisation been confirmed. To the contrary, around or about 11 December 2013, the appellant became aware that Mr Wrench had been successful in a secondary application for a position in the liquor division. This news prompted the appellant to send an email to Ms Brumby asking her if there had been any developments in the matter. When he did not receive a response to this email, the appellant dispatched an email to Mr Kennedy on 17 December 2013 and copied Mr Kennedy's manager, Tim Gaylard. In this email the appellant drew attention to the fact that he had not received feedback on his complaint despite receiving an undertaking to this effect, and expressed his concern that Mr Wrench had been appointed to a senior position within the liquor group before the investigation into his complaint had concluded. He also said that he had raised the matter with Mr Wrench's line manager (Nathaniel Lloyd) who denied any knowledge of the complaint. The appellant's disclosure that he had informed others of his complaint subsequently attracted criticism on the basis that he had breached confidentiality.

Ms Brumby said that Mr Gaylard informed her that he had received the email. It was Ms Brumby's evidence that Mr Gaylard told her that he was not aware of either the anonymous complaint or the appellant's direct complaint. While she said that she told Mr Gaylard that the complaint was being investigated by the corporate HR team, there was no evidence to the effect that the appellant was informed that the corporate office, rather than the state office was conducting the investigation.

When the 17 December 2013 email was forwarded to Ms Brumby she informed the appellant at 11.45 am that she would contact him the following day to discuss the matter. Subsequently at 3.37 pm on the same day she emailed the appellant and told him that Mr Kennedy from HR would call him to explain to him that he would not be getting progress reports about the investigation and to arrange a discussion with him the following day about his surveillance of Mr Wrench. She said in the email that the "matter should not be discussed with anyone else" including Ms Olive and Mr Lloyd. She also reiterated that the complaint was being taken seriously and that the investigation had been progressed. While this communication should have been sufficient to bring the matter to an end pending the discussion to take place the following day, the appellant elected to continue the debate and emailed Ms Brumby at 9.41 pm.
The email took issue with Ms Brumby's earlier response to him. He criticised Ms Brumby for not getting back to him after the 18 November 2013 meeting and for not formally responding to his 15 November 2013 complaint. He chastised her for not responding to his 11 December 2013 email. He suggested that he had a right to enquire about the progress of the investigation. He said that the complaint had caused him considerable stress and that his doctor had placed him on blood pressure medication and said that the cause of his anxiety, in part, was the failure to receive an explanation about Mr Wrench's appointment to the liquor division. He defended his right to inform Ms Olive about the matter and to raise the matter with Mr Wrench's line manager. He expressed concern that despite filing his Speakup complaint in early October 2013 there was evidence that Mr Wrench's behaviour had not been corrected. He finally expressed concern that Ms Brumby may be implying that he had acted improperly and asked her to advise him if he would require a support person for the discussion to take place the next day. Ms Brumby responded to the appellant's email a few minutes later at 9.34 pm. She told him a support person was not required and that the discussion would review his concerns and clarify his role in investigating Mr Wrench.
While the appellant was entitled to communicate with his supervisor and express his views, it was likely that his persistence in requesting information about his complaint and the criticisms included in his 9.41 pm email would not have endeared himself to Ms Brumby. Not surprisingly therefore the proposition was put to Ms Brumby in cross-examination that at this point in time the relationship between herself and the appellant had broken down (T4-27). While Ms Brumby denied that her working relationship with the appellant had been damaged by the exercise, I think it is fair to say that the relationship would have been put under some strain. While Ms Brumby denied that these events resulted in her treating the appellant less favourably going forward, the appellant formed a different conclusion.
It was the appellant's evidence that during the telephone discussion that he had with Ms Brumby and Mr Kennedy on 18 December 2013:

(i)Ms Brumby apologised to him for not responding to him in the week commencing 18 November 2013;
(ii)Ms Brumby said that she understood his frustration;
(iii)Ms Brumby asked him why he felt that it was necessary to conduct surveillance of Mr Wrench's home;
(iv)Ms Brumby expressed a concern about the appropriateness of the surveillance and photo taking;
(v)He told Ms Brumby that it was his responsibility to protect company assets.

It was Ms Brumby's evidence that during the call she confirmed that the complaint was being taken seriously and that the complaint was being investigated. She asked the appellant to explain who had authorised his surveillance of Mr Wrench and expressed concern about the activity. She also addressed the breach of confidentiality. She said that she told the appellant that he was not to discuss his complaint with anyone and that he should await some further communication from HR. She also told him in effect that he should not expect updates on the investigation.
The appellant conceded in his evidence that he told Ms Brumby and Mr Kennedy at the end of their discussion that he felt better after the discussion, that he had got the issue "off his chest", and that he was looking forward to moving on in the new structure. Ms Brumby's recollection about how the meeting ended was similar. There appeared to be no explicit discussion about the status of the complaint and the appellant said that it was his interpretation of the discussion, that the matter was closed. I take this to mean that he understood that he was not to persist with enquiries about the status of the matter and that he would not be informed of the result of the investigation. I do not think that there is any dispute that this was the conclusion that Ms Brumby and Mr Kennedy intended the appellant to draw.

Performance Appraisal

The performance appraisal process required Ms Brumby to complete the appraisals of nine subordinates. The effectiveness of the appraisals was limited by the fact that Ms Brumby had not actively supervised her subordinates across the appraisal period (six months ending on 31 December 2013) and the restructure of the department had not concluded until late in 2013. While most of the appraisals were conducted in late February, the appellant's appraisal was deferred until 7 April 2014 when he was next scheduled to be in Brisbane.

A matter in contention was whether the appraisal would include a rating of performance by reference to key performance indicators (KPI's). Key performance indicators had been canvassed at a team meeting held on 17 February 2014. Attendees at the meeting included Ms Brumby, Mr Lowe, Mr McLean and the appellant. The minutes of the meeting (Exhibit 6) noted that it would be very difficult to include a review of KPI's in the process and that "instead the performance appraisals will be based on behaviours, taking into consideration our re-structure and how we demonstrated leadership behaviours through this challenging time". Other particulars to be canvassed were included in the minutes.
In her evidence Ms Brumby acknowledged that many team members did not have structured KPI's in place relevant to their previous roles. She said that "given the fact that there wasn’t structured KPIs", she discussed in the team meeting the approach to be adopted in rating performance for the preceding half year (T3-58). Ms Brumby said that the question to be answered in the appraisal was that "in the light of having no structured KPI's, what was it that you actually have been doing for that six months that can support" your performance (T3-59). She added that:

" … the fact that there wasn’t structured KPIs wasn’t to be – wasn’t to then mean that we couldn’t have a conversation about what the team had been working on in the previous six months. So that was what – that was what I talked about. And I also talked about the roadshow, and the different elements of that – thinking about 30, 60, 90-day plans – how were they going to transition into – into that new – in the new roles."

It was Mr Sorrensen's evidence that key performance indicators were not in place in early 2014. It was Mr McLean's evidence that his understanding from the 17 February 2014 meeting was that he was to take information relating to past investigations to the meeting, but not KPI's. In my view Mr McLean's understanding appears consistent with the minutes. He gave the following evidence about key performance indicators (T2-107):
"All right. Now KPI – key performance indicators, prior to the reorganisation what was the status with those documents for people in your area?‑‑‑Under the Group Investigation structure the KPIs had been drafted but they were never implemented because the new structure had been announced and a decision was made that the investigators – KPIs wouldn’t go forward because of that reason. There was no point us endeavouring to achieve the KPIs because we were restructuring in a number of months. So it didn’t make any sense."
The appellant said that he found the instructions or guidelines given to assist preparation for the performance appraisal to be confusing and said in effect that he did not have a clear picture of what was required of him. He said that he consulted with co-workers about the matter and that he was able to get information about the process from those in Brisbane who had already completed their appraisal. Mr McLean said that he was not asked to provide tangible outcomes by Ms Brumby during his appraisal. He said that he took material relating to significant investigations with him, but he was not asked to produce the material. He said the review did not extend much beyond ad hoc exchanges.

It is clear on the evidence, including the evidence of Ms Brumby, that KPI's would not be used in the performance appraisal process and that the appraisal would involve a discussion about individual achievements registered during the six month period.

It was the appellant's evidence that in the appraisal meeting Ms Brumby asked him about his application for a specialist safety role, criticised him for failing to develop an adequate plan for his visit to Brisbane, and revisited the Speakup complaint by reminding him of his obligation to maintain confidentiality. The appellant said that in terms of key performance indicators he had been treated differently from his co-workers. He said that while Ms Brumby asked him for examples of what he had done over the previous six months, she also asked him to produce his KPI's. It was the appellant's evidence that when he said that he did not bring or have any KPI's he was admonished by Ms Brumby who said that she would expect anyone attending a performance review should have brought their KPI's (T1-44):
" … and then I started to speak about some investigations that I’d been – because in that role it was investigation after investigation, so I picked out two or three of the best ones that I did and there were some really good ones there, and I started to talk about one of them. I was quickly cut off at that stage and asked, well, you know, where are your KPIs."
Ms Brumby said she started the interview by asking the appellant about his application for the supermarket safety specialist position. The appellant had informed Ms Brumby by email (Exhibit 25) on Thursday 3 April 2014 that he had applied for an internal transfer to the position of "Supermarket Safety Specialist". She then asked the appellant to rate his own performance before informing him that she had rated his performance as "effective". Ms Brumby's said that she raised the issue of key performance indicators in the following context (T3-71):

" – I asked what it was that he had been working on, and Chris went to some theft investigations that he’d done in the previous structure, and wasn’t very forthcoming in any further information, and I asked, then, “Well, what were your KPIs?” and I think that’s when Chris – Chris then said, “I – I didn’t know I had to bring them.” So the conversation was then about, “What was it, then, that you have been working on?” And I – I don’t believe that he produced any information, so no supporting information ‑ ‑ ‑ ".

I accept that the request by Ms Brumby that the appellant address his KPI's appeared inconsistent with the minutes of 17 February 2014 and inconsistent with the appellant's expectations. I also accept that the appellant was entitled to feel confused about what was required of him in the appraisal, given the content of the minutes and Ms Brumby's failure in her evidence in the proceedings to unambiguously explain what was expected at the time of the appraisal. Given that the appraisal appeared to be largely ceremonial, that the appellant's performance for the specified period was rated "effective", and given that the confusion was not of the appellant's making, any criticism of the appellant's failure to produce KPI's was misplaced.

Work Plan

The appellant said that he had been unfairly criticised by Ms Brumby for not preparing a schedule of meetings and commitments for his time in Brisbane in the week commencing 7 April 2014. The effect of Ms Brumby's evidence was that she had made it clear to the appellant that he needed to develop a schedule for his visit to Brisbane to ensure that his time spent in Brisbane was spent productively. Ms Brumby had addressed the need to plan for the week in emails to the appellant dated 26 March 2014 (Exhibit 20) and 27 March 2014 (Exhibit 21). It was Ms Brumby's expectation that the appellant would have made firm plans to meet with head office personnel who could assist his safety upskilling.

In the email dated 26 March 2014 Ms Brumby had told the appellant that she wanted an update the next day on "how you plan on using your week down here". Ms Brumby said that she was concerned that without fixed appointments the appellant might not get the necessary access to key personnel such as Ms Monk. She agreed that she criticised the appellant during the appraisal for failing to prepare a detailed plan regulating the use of his time and said that she told the appellant to provide her with a plan the following day. It was her evidence that (T3-66):

"I told Mr Clifford that I was disappointed that the week hadn’t been planned. It was a big investment in time. It was a big investment to have – you know, to have him down in – in Brisbane for the week. We don’t often get the opportunity of him being in – in Brisbane for a week, and I wanted him to have the opportunities to be able to talk with as many people as he could, and to start building some relationships with divisional people. The safety work that was being prepared for him, I wanted to make sure that he had the time set aside for that."

It was the appellant's evidence (T2-97) that "Ms Brumby was highly critical of me for not having a plan for the week, a written plan for the week. I left the meeting and I produced a plan … ". A copy of this plan is in the evidence as Exhibit 30. Ms Brumby said that when she reviewed the plan given to her the following day (8 April 2014) "she was quite pleased that he had put some detail in there, around what he could do for the week". She said that she told the appellant that it was good that he had added the extra detail. It would appear, on this rating, that the content of the plan, and the appellant's schedule for the week, had been settled.

Whether there was any need for a structured schedule to regulate the appellant's time in Brisbane was not necessarily made out on the evidence. The plan (Exhibit 30) that was ultimately approved by Ms Brumby was only sparsely populated with commitments and did not represent any vindication for the need of a detailed itinerary. On the premise that Ms Monk was the only safety expert available to meet the appellant, and given the appellant's ongoing working relationship with Ms Monk, the appellant may have been correct in asserting that an informal arrangement to meet with her was sufficient. Notwithstanding this Ms Brumby had asked for a plan and was entitled to receive same.

Confidentiality

During the appraisal, Ms Brumby revisited the issue of confidentiality that had been raised in December 2013 in connection with the appellant's complaint against Mr Wrench. Ms Brumby said that she had been asked by her line manager to raise the matter because "a person had had a conversation with HR" (T3-70) and there was a concern that the appellant had breached confidentiality notwithstanding the warning he had been given on 18 December 2013. Ms Brumby said that she reminded the appellant of the importance of maintaining confidentiality, but said that she did not take any action against the appellant in respect to the matter.
Ms Brumby accepted that the appellant was "quite concerned" about the warning or criticism and that he raised the matter with her, and asked questions in respect to it, when they met the next day. Ms Brumby said that she could see that the appellant's concern was genuine. She said that the appellant wanted to know who had informed HR that he had breached confidentiality. Ms Brumby responded that she did not have any further information. In the circumstances she conceded that she could understand why the appellant might regard any criticism of him about a breach of confidentiality as being unfair. Ms Brumby also accepted that it might have been preferable had she questioned her line manager about the matter and secured more information before proceeding to raise the issue during the appellant's appraisal. She said that if she had different or further information "there might have been a different outcome" (T4-50).
It was Ms Brumby's evidence (T4-78) that while the appellant's performance for the previous six months had been rated "effective", a positive outcome was not associated with the confidentiality issue:
" – the performance appraisal was positive from the aspect of Chris had been rated as effective for that prior six months, which was a positive outcome. The other aspects around the Speak Up complaint, they weren't positive. No.

Insofar as the – your assertions on the 7^th of April that he'd breached confidentiality again,. You accept that that was unfair, wasn't it?‑‑‑I don't think that that was unfair. The handling of that, as I said before, could probably have been done differently. I don't know that it was unfair.
Right?‑‑‑I was doing what I was asked to do."

It was not in dispute that the renewal of the confidentiality complaint was a cause of anxiety or distress for the appellant. He was understandably concerned that an allegation had been made during his performance appraisal which might negatively impact on his standing in the organisation. The further difficulty was that particulars of the allegation were not presented to him and he had not been given an opportunity to defend himself. Any adverse impact on the appellant's state of mind was compounded by the fact that the appellant had always maintained that he had acted correctly in raising the complaint and was aggrieved by the failure to receive any form of feedback about the outcome or status of his complaint.

One on One Meeting - 8 April 2014

After revisiting the confidentiality issue, the meeting on 8 April 2014 turned to a discussion about the 30/60/90 day training plan prepared by the appellant. Ms Brumby was not satisfied with the appellant's first draft and asked him to revise the document after he had sighted and read the plan completed by Mr McLean. In this regard Ms Brumby told the appellant that Mr McLean had prepared a very good 30/60/90 plan which incorporated a SWOT analysis and considered training needs in some depth. She asked the appellant to spend some time with Mr McLean to assist him to effect improvements in his own plan.

Ms Brumby said that the plan should have included specific activities supporting the appellant's obligation to train operational staff in the response and management of low severity incidents. She also said that she expected that the appellant's training plan would have included more detail and would have placed more emphasis on his requirement to upskill in the safety area (T3-72):
"‑ ‑ ‑ what did you say about this issue of more detail?‑‑‑So upskill knowledge safety area. So I would have expected to see there what aspects of safety he needed to have some upskilling in, knowing that there had already been an ICAM investigation. Knowing that Chris had already been through that course, and had done the ICAM course, it would have been around, “What else do you need to perform that role?” Sorry, “To – to be upskilled in safety. Is it going out and spending some time with Nicole, for example? Is it going and spending time with a safety specialist in a store? That type of thing. “Assist divisional risk and assurance staff in investigation.” So I talked to Chris about tasks – because there was a lot of tasks on here. That – that’s part of – part of the role.

The minutes of the 17 February 2014 team meeting included an item about "training needs analysis". In this regard feedback from participants suggested that more detail needed to be provided to facilitate completion of some tasks. Work was to start on the settling of the major components to be included in the analysis. Mr Sorrensen said that he had prepared a 30/60/90 day training plan and had submitted it to Ms Brumby. Mr Sorrensen said that he had prepared his plan after being advised by Ms Brumby to review the plan that Ms Monk had prepared. He said he modelled his plan on the plan produced by Ms Monk. He said that the appellant had asked him for a copy of his plan.
It was Mr Sorrensen's evidence that the preparation of the plan was facilitated by information that was sent through to each officer listing each person's role and the training that they were expected to complete. He said that this document was used to identify individual training needs. He said that he used the document as a guide to develop his own plan by determining which training should be completed within the specified time periods. Mr McLean's evidence was similar. He said that the company had prepared a training needs document which detailed what training was required for the role, and required staff to record what training they had already completed.

This meeting also featured a discussion about the status of a number of investigations being conducted by the appellant including the North Shore, Riverside Gardens, BWS Discovery Rise, and Cairns Masters' investigations. An email in the evidence as Exhibit 22 included a note sent by Ms Brumby to another investigator which states that Ms Brumby was not happy with some aspect or aspects of the appellant's report on the Discovery Rise matter.

A ceiling collapse at the North Shore supermarket is discussed in an email exchange on 27 February 2014 (Exhibit 15). The email trail ended on the basis that the incident required the appellant to complete an ICAM safety investigation. The appellant's report was subsequently reviewed by Ms Brumby and others, and on 27 March 2014 Ms Brumby emailed (Exhibit 21) the appellant with feedback on his work saying that there were some gaps in his investigation. Ms Brumby prefaced her feedback with a statement that she understood that the appellant "was in the process of up skilling" and she made observations to the effect that he should treat the feedback as constructive and as a learning opportunity. While the feedback was constructive, it was also very extensive and stood as a record of the deficiencies in the appellant's investigative and report writing capabilities in the safety area. These deficiencies had been recognised in the 27 February 2014 email where the appellant confirmed that he had limited opportunity to apply ICAM principles, and, where Ms Brumby had acknowledged his need for training and development as a priority.
The Riverside Gardens investigation attracted controversy because Ms Brumby claimed that she was misled by the appellant about its status. It was her understanding that the investigation had not been pursued in an expeditious manner and had a long way to run. Given that the incident was only ranked at level 3 severity, she decided that the investigation should be handed to the relevant division to progress and finalise. This meant that the division would have to incur the costs of sending someone to Townsville to progress the matter. However when the division made inquiries about the matter it emerged that the investigation was at an advanced stage and was about to be finalised. In the circumstances it appeared logical and cost efficient for the appellant to conclude the matter, and the division communicated this position to Ms Brumby on 15 April 2014 (Exhibit 23). In questioning the veracity of the appellant's advice to her, Ms Brumby relied on the records of the LPMS system which showed that the appellant did not make arrangements to interview a suspect until 16 April 2014. This and another entry at the same time suggested that the appellant had accelerated his involvement in the matter since the meeting with Ms Brumby on 8 April 2014, notwithstanding that he had been told to hand the matter over. The appellant, on the other hand, maintained that he had tried to provide Ms Brumby with an accurate account of the status of the matter, but that she dominated the discussion on 8 April 2014, and did not give him the opportunity to provide clear explanations.
The conflict in the version of events provided by the appellant and Ms Brumby about what was said on 8 April 2014 is difficult to resolve. Ms Brumby did admit however that she was short and direct when she raised the Riverside Gardens matter with the appellant. This setting may have put the appellant on the defensive and would not have been conducive to an open and fulsome account being provided by the appellant. A communications failure or a misunderstanding over the underlying facts would not have been improbable. In the end result, and at some embarrassment to Ms Brumby, the investigation was returned to the appellant. It could be expected that the relationship would be strained or further strained by these events.
The appellant said that Ms Brumby's demeanour in both the 7 April and 8 April 2014 meetings was rude and abrupt. It was Mr McLean's evidence that the appellant was often "very desperate after he'd come out of the meeting with Kym Brumby". He said this evidence was alluding to meetings occurring during the week commencing 7 April 2014.
Team Meeting - 10 April 2014

The appellant said that during a team meeting on 10 April 2014 Ms Brumby humiliated him by putting to him the rhetorical question of "remind me why I hired you". While Ms Brumby accepted that such a statement, if made, would be inappropriate or unsatisfactory in terms of management conduct, she maintained that she did not utter these words in the 10 April 2014 meeting.

However the appellant's version of events was supported by Mr McLean who attended the meeting. His evidence was to the effect that the purpose of the meeting was to discuss training needs. He said that when it was the appellant's turn to speak, he indicated that he needed a number of safety qualifications for his role. It was while the appellant was defining his needs, or as he concluded stating his requirements, that Ms Brumby said "remind me why you hired me". Mr McLean said that when the appellant was listing the courses that he required, he was referring to safety courses included in a company training document which he needed for his role, but that he had yet to complete.
Mr McLean rejected the proposition that Ms Brumby may have made the contested observation in a humorous or flippant manner. It was his evidence that while the statement was not made in an aggressive manner "it was certainly demeaning". His further evidence was (T2-118):

"Can I suggest to you it didn’t occur by way of making a critical comment of Mr Clifford?‑‑‑Once again, I deliberated on that comment and I came to the conclusion that it was not managerial, it was not humorous, it was in no way constructive and it was certainly criticism."

Given the appellant's lack of experience in the safety role and the acknowledged need for upskilling, it was reasonable for the appellant to want to complete all available and relevant safety training. In a discussion which was apparently dedicated to the surfacing of training needs, he can hardly be criticised for identifying and tabling his requirements. Further, in so doing, he appeared to be responding to the criticism levelled at him by Ms Brumby in their meeting on 8 April 2014.

Ms Brumby said in her evidence that she wanted the appellant to specify in his 30/60/90 day plan what training he needed. Her controversial comment, if made, appeared inconsistent with her complaint about a lack of specificity and also inconsistent with her request that the appellant focus on upskilling in the safety area. Her comment was also not consistent with the evidence of Mr McLean and Mr Sorrensen both of whom said that the process was to review the company training document relevant to the particular role and to select the training activities specified that needed to be completed. Given the criticism that Ms Brumby had levelled at the appellant earlier in the week and the acknowledgement that Ms Brumby made about the impact of some of this criticism on the appellant, it was both inopportune and insensitive of her to embarrass the appellant in the manner that she did.
Report Writing

It was Ms Brumby's evidence that after a brief incident notification was completed and distributed immediately after an event, a full investigation report was to be compiled within one month of the event. She said that a template to facilitate the completion of the investigation was introduced in March 2014. The appellant's evidence was that while report templates were issued at a meeting on 22 January 2014, training on report writing was not delivered until some seven months later and well after his decompensation.

It can be inferred from the evidence that the appellant struggled with the higher and more complex investigative standards and report writing requirements. The inference is drawn from Ms Brumby's criticisms of reports prepared by the appellant, her conclusions about a skills gap, and parts of the appellant's and Mr McLean's evidence. Mr McLean expressed the opinion that a number of investigators had experienced difficulty in preparing reports to meet the new requirements. He noted that most reports had previously been prepared on a computerised loss prevention data system and that the mode of preparation was to enter data where prompted on the computerised form.
Mr McLean was familiar with the standard of the appellant's work because the appellant had been asked to seek his assistance and guidance in trying to effect improvements to his work in this area. The effect of Mr McLean's evidence was that the appellant would not have been previously required to complete reports in the form required by the organisation after the restructure. He was also critical of a lack of training and direction around the preparation of reports. He suggested that the problem was that investigators were not presented with examples which clearly set out and communicated the required standard in terms of outcomes. He said that this made it very difficult for a person who had never previously written reports.
One on One - 22 May 2014
The appellant had been absent from the workplace on annual leave between 30 April 2014 and 14 May 2014. A regular fortnightly "one on one" discussion between the appellant and Ms Brumby was scheduled for 22 May 2014. An email trail in the evidence as Exhibit 8 notes that Ms Brumby emailed the appellant on 21 May 2014 saying that she would send through an agenda for the meeting and that the appellant should work through the agenda in preparation for the meeting. However when the appellant responded to the effect that he was committed to an investigation during the day (and presumably therefore would not have the opportunity to review an agenda and prepare), Ms Brumby did not proceed to complete an agenda. She told the appellant however that the discussion would be guided by a new template. In this regard she said that there was nothing new in the template and that its purpose was to ensure that "when we do have one on one's they explore everything that is happening and cover off on all". Notwithstanding this clarification, Ms Brumby did concede that it would have been preferable had an agenda for the meeting been distributed before the event.

A review of the evidence discloses that Ms Brumby introduced a number of matters during the meeting. It appeared to be common ground that Ms Brumby did most of the talking. This is not to say that the appellant was not provided with an opportunity to speak. Rather, whether because of a level of stress or anxiety, because he was intimidated by Ms Brumby, or because he had no reasonable explanation, he mainly provided very short and unproductive responses. Ms Brumby said that she discussed weekly planner entries, late reporting, XBR training, North Shore, Big W Stockland, and the G-20 Cairns meeting. The appellant said that he introduced the result of his BWS Dalrymple investigation, he agreed that Ms Brumby raised the Big W Stockland and Cairns Masters reports, the weekly planner issue, and her concerns about late reports.

In terms of the North Shore investigation Ms Brumby said that there was an aspect of the investigation that had not been finalised by the appellant. This aspect had been taken up with Ms Brumby by the supermarket safety specialist, Ms Milton. Ms Brumby also objected to the appellant's involvement in the training of Mr Wrench on the XBR program which was a computer-based reporting tool used to surface anomalies arising from cash register usage. The difficulty for the appellant on Ms Brumby's version was that the XBR program was for the exclusive use of the shared services team and was not to be accessed by divisional staff. The matter of concern with the G20 meetings was that the appellant had not made the necessary arrangements to travel to Cairns and conduct preparations and consultations. However while the appellant said that Ms Brumby criticised him for failing to confirm arrangements for a visit to Cairns, he maintained that ample time remained for the trip to be arranged and for preparations to be completed.

The discussion about weekly planner entries involved consideration of the appellant's day to day activities. Ms Brumby said that in this discussion she was trying to surface information about the level of the appellant's workload so that she could provide appropriate support and assistance, but the appellant said that Ms Brumby's approach was critical and negative and amounted to an interrogation about his daily activities.
The appellant alleged that Ms Brumby criticised him for failing to comply with the 30 day rule and submitting late reports. He denied that he submitted late reports. While the evidence was sparse around the subject, Ms Brumby's principal concern may have been that the appellant was submitting reports at the eleventh hour, and that it was preferable from her perspective that they be submitted earlier. The appellant also maintained that all of his investigation reports attracted some criticism from Ms Brumby. The effect of Ms Brumby's evidence was that she did criticise some of the appellant's work. She said that a part of the North Shore investigation had not been completed and she told the appellant that he should not have been delivering XBR training to Mr Wrench. She also suggested improvements to his Big W report.
The appellant said that Ms Brumby also revisited the issue about how he spent his time in Brisbane in the week commencing 7 April 2014 and criticised him for not extracting full value from the week particularly in respect to safety upskilling. The appellant said that he was puzzled why the matter had been raised again.

It was Ms Brumby's evidence (T4-21) that the discussion on 22 May 2014 encompassed "a number of outstanding issues" that for the most part had been the subject of previous or on-going discussion between her and the appellant. She had concluded that "there was a skill gap between what needed to be completed in the role and what was actually being completed in the role". She described the objective of the meeting in the following terms (T4-57):

"I was asking questions around actions and reports and other areas that we had previously discussed to try to work through the reasons why I couldn’t get where we needed to, or Chris couldn’t get to where he needed to. That was the objective of the meeting. And at the end of the meeting there needed to be some outcomes. And one of those possible outcomes was a development plan."

Ms Brumby said that at times during the meeting she felt frustrated and that this may have led her to raise her voice and to adopt a more directive style of communication. This meant that at times she was short and to the point. She said that it had been a difficult conversation (T3-83):

"– the conversation was difficult because I wasn’t getting any feedback on these areas that I’d been discussing with Chris. A lot of them we had already talked about, and, as I say, my thought process for going into this discussion was to actually try to work through what – what were the impediments to getting these things across the line. So because that wasn’t forthcoming, and it was very much one-liners, and – and no interaction the – the conversation probably was shorter than what I thought it would have been … ".

Given the level of preparation, the consideration given to an improvement plan, and the evidence in the proceedings, it was reasonably clear that the discussion from Ms Brumby's point of view was pre-occupied with identifying and addressing performance shortfalls or areas for improvement. The performance of the appellant was therefore subject to criticism, whether constructive or otherwise.

There is nothing in the email trail in the evidence as Exhibit 8 which foreshadowed that the meeting might be disciplinary in nature. However, Ms Brumby said that she did not consider her approach to amount to an ambush because the majority of items discussed on 22 May 2014 were items that had previously had been discussed and were the subject of continuing discussion.

The fact that matters had been the subject of prior discussion does not mean that the 22 May 2014 discussion did not assume a disciplinary character. The determining factor was whether the purpose of the discussion, or the manner in which the discussion unfolded, surfaced matters which were likely to have disciplinary consequences. It is likely that the appellant would have interpreted the discussion this way.
In her evidence in the proceedings Ms Brumby maintained that she had not decided in advance to place the appellant on a development plan. This evidence however was inconsistent with a prior statement wherein she had said that she had "put a lot of time and effort into preparing for the meeting as I was going to advise the complainant that I was putting him on a development plan" (T4-48). Ms Brumby agreed that she had invested significant time in preparing for the meeting. She gave the following evidence on these subjects (T4-53):

"I’d put a lot of time and effort into going through, looking at where I felt there was gaps in Chris’s performance and spent a lot of time going through typing up some different questions that I wanted to ask to find out from Chris what it was that was contributing to these – to these gaps. So that formed part of my notes and at the end of that discussion it was my intention to – from the information that I had gained from the discussion as to what the next steps were. So one of those steps may have been a performance improvement plan if I couldn’t get, you know, the – the answers, I guess, around if there was anything that was holding Chris back from performing those duties in that discussion on the 22^nd."

Notwithstanding this, Ms Brumby accepted that if there had been a predetermined position to put the appellant on a development plan, the approach she employed would have been unfair (T4-63):

"Likewise, if your intention was to put him on a development plan on the 22^nd of May without giving him the opportunity of having an agenda, without giving him the opportunity of preparing for it, without giving him the opportunity of being heard, it would have been grossly unfair on your part, wouldn’t it?‑‑‑It would have been."

The appellant said that Ms Brumby did not tell him that he would be put on a development plan but he acknowledged that such an outcome may have been foreshadowed when Ms Brumby ended the meeting by saying that she would get him down to Brisbane the following week and said that "we'll speak more about this". Ms Brumby said that the meeting ended with her saying that they would need to talk further about the matters canvassed and that this might happen the following week when a workshop was planned for Brisbane.

Ms Olive had been employed by Woolworths as a loss prevention officer assisting the appellant who she had worked with for 18 years. She had been retrenched as a result of the 2013 organisational restructure and her employment with Woolworths ended in January 2014. She said in her evidence that she received a call from the appellant around 6.00 pm on 22 May 2014 and that he informed her that he needed to speak to someone urgently. She arranged to meet with him at the Rasmussen store. She said that when the appellant arrived his demeanour was not good (T3-19):

"I’ve never seen him that way that – he just seemed – his eyes were red. He – he was shaking. He just didn’t seem himself. He just seemed totally out of character for Chris which really concerned me."

[100]Ms Olive said that while she considered the appellant as someone who was always in total control of a situation, he seemed shaky and nervous and that his hands were trembling. When the appellant told her about his conversation with Ms Brumby, Ms Olive said that he did not make eye contact, had his head down and was distressed and upset. Mr Sorrensen said that he spoke to the appellant over the phone after his conversation with Ms Brumby. He said that the appellant became a little incoherent from time to time during the conversation, that the appellant's voice was trembling, and that the appellant was holding back tears. He said that he had never previously encountered the appellant in this frame of mind.

Reasoning

[101]I accept the opinion of Dr Likely that the appellant's adjustment disorder was caused by an accumulation of work related stressors between late 2013 and May 2014. Consistent with this conclusion, it is my view that the facts and circumstances relevant to this appeal support findings of management failures associated with decision making or conduct directed toward the appellant between October 2013 and May 2014. The findings relate to the management response to the appellant's complaints, matters associated with meetings in Brisbane in the week commencing 7 April 2014, the delay in delivering safety and report writing training, and the conduct of the 22 May 2014 meeting. It was the cumulative effect of these failures that led to the appellant's decompensation on 22 May 2014.
[102]Whatever the doubts expressed about the appellant's motivation, the appellant's decision to make his complaint was substantially influenced by Ms Flynn's memorandum. He was entitled to act consistently with the views expressed in the memorandum and he was entitled to expect that his complaint would be processed expeditiously. The memorandum stressed the importance of guarding against time fraud and encouraged and facilitated the reporting of misconduct pending the completion of the restructure. Given that the restructure would be concluded within a few months of the date of issue of the memorandum, it would be reasonable to expect that complaints would be attended to promptly. Unfortunately for the appellant this did not occur and, for him, the complaints process was transformed from a demonstration of loyalty and leadership into an endeavour which resulted in a series of process related criticisms which negatively impacted his self-esteem and self-confidence, jeopardised his standing in the organisation, and caused him unnecessary anxiety and stress. In my view his descent into psychological disrepair can be traced back to these events.

[103]The management handling of the appellant's complaint was deficient in a number of respects and the deficiencies could have reasonably been expected to impact negatively on the appellant's psychological well-being. Firstly, the investigation into the complaint should have been completed sooner. Secondly, particularly given the delays, management should have proactively liaised with the appellant in relation to his complaint and endeavoured to answer his questions. Thirdly, it was a significant omission to appoint Mr Wrench to a new position before the investigation into the appellant’s complaint had concluded and without giving the appellant some explanation. Finally the employer failed to turn its mind to any practical adverse implications for the appellant in making a complaint about a co-worker. There were possible implications for his welfare, implications for his professional standing if his complaint were deemed frivolous or was unsubstantiated for other reasons, and implications for workplace harmony.
[104]While the organisation was in transition and while an anonymous complaint line might be expected to generate a very considerable number of both valid and vexatious complaints, the investigation into the appellant's complaint took too long. The investigation of the complaint would not have been a complex exercise. The starting point would have been to elicit a response from Mr Wrench's line manager, and subject to the nature of the response, the appellant may have been required to put his allegations to proof. The evidence that the complaint was still being investigated as at 18 December 2013 and that Mr Wrench's line manager was not aware of the matter at or around 11 December 2013 raises questions about the efficiency of the investigation.

[105]The decision to make a serious complaint against a co-worker which might be likely to bring about the termination of the co-workers employment put the appellant in a difficult situation. The appellant was on friendly terms with Mr Wrench and he worked in the same open office space as Mr Wrench. Given that it was possible that Mr Wrench might correctly speculate on who had made the complaint, the relationship could come under significant stress and the working environment would be very awkward. Compounding the unease about an act of personal disloyalty was the appellant's sensitivity to a proposition that his complaint would be seen to be motivated by self-interest. I think it reasonable to conclude that the appellant would have been anxious and stressed about what might transpire as the complaint was investigated. All these factors underscored the desirability of resolving the appellant's complaint as expeditiously as possible while keeping him informed along the way.
[106]The appellant had put forward a signed statement in support of his allegations. On the surface, if his allegations were considered to be false, this would have had significant and adverse implications for his own status in the organisation. Further, as the complainant, he would have been expected to have his allegations tested in an interview with the investigator. In the absence of an interview and any explanation about the outcome of his complaint, it might be open to conjecture that the alleged breaches of the code of conduct were not considered significant or that the complaint was frivolous or vexatious.

[107]While the appellant's expectations about the extent and nature of any feedback may have been too high, there would have been many ways that the appellant could have been provided with meaningful feedback without compromising the confidentiality of the investigation. For example, if the facts were not in dispute, the appellant could have been informed by HR that they had sought, and been provided with, full explanations by Mr Wrench, that they were satisfied with his explanations, and that the complaint had been closed. The failure to provide any feedback was understandably a cause of considerable concern to the appellant, a concern that was exacerbated when he was counselled and cautioned for breaches of confidentiality.

[108]In this regard it is relevant that the appellant's indiscretion, if it amounted to that, was triggered by his failure to understand why Mr Wrench was appointed to a new role before the appellant's complaint had been finalised and before Ms Wrench's line manager even became aware of the complaint. On any view of the matter, if his allegations were being taken seriously, the appointment should have been delayed pending the conclusion of the investigation. Alternatively, if there were reasons justifying the course of action taken, the appellant should have been given an appropriate explanation.
[109]I am inclined to the view that the response to the alleged breach of confidentiality was not proportional. Firstly, the appellant was entitled to ask Mr Kennedy in HR for an update. Ms Brumby had not responded to his earlier email and, on Ms Brumby's evidence, the appellant had been told that HR was responsible for the investigation. I agree that the inclusion of Mr Gaylard in the email distribution list was unnecessary, but it did not give rise to a breach of confidentiality. If the HR department had already been apprised of the complaint (albeit only through Mr Kennedy), confidentiality was not breached by furnishing Mr Gaylard with the same information that Mr Kennedy already had in his possession.

[110]While it is arguable whether the appellant should have raised the complaint with Mr Lloyd, I acknowledge that the appellant would have been entitled to presume that some ten weeks after lodgment of the complaint, Mr Wrench's line manager would have known about the complaint, and that he would not be telling him anything that he did not already know. It would be difficult in my view for the organisation to conduct even a cursory review of the complaint without speaking to Mr Lloyd. In the circumstances I do not regard the appellant's enquiry to amount to a significant breach of confidentiality. I accept that procedurally the disclosure may have caused the organisation some embarrassment in that some ten weeks after the lodgment of a complaint of some substance, Mr Lloyd appeared not to be aware of the matter.

[111]The mistakes made by management in relation to their dealings with the appellant in respect to his complaint were compounded by their revival of the confidentiality issue on 7 April 2014. While the introduction of the issue may have been intended to be no more than a friendly reminder, it should have been foreseeable that the appellant would have been aggrieved by further criticism around a matter where he had always believed that he had done the right thing. No clear or compelling reason was provided explaining why the matter had to be revived well after the resolution of the complaint and in circumstances where particulars of the complaint were not provided and the appellant was not given the opportunity to defend himself.
[112]The key issues in contention arising from the 7 April 2014 performance appraisal were whether Ms Brumby treated the appellant differently in conducting his appraisal by requesting that he produce KPI's, whether she inappropriately criticised the appellant during the appraisal about his planning for his week in Brisbane, whether she acted reasonably in reviving the earlier criticisms of the appellant about breaches of confidentiality, and whether she acted in an aggressive, abrupt or hostile manner toward the appellant. Without making specific findings adverse to Ms Brumby in respect to the issues in contention, I am of the view, on balance, that a more supportive and less critical management approach would have been more appropriate. Ms Brumby had only supervised the appellant for a few months and, given his location in Townsville, there had been limited face to face opportunities to build a positive rappour and to better understand his strengths and weaknesses. These outcomes were desirable in a context where the appellant was experiencing difficulty in managing the transition, where there were limitations on his access to support, and where he needed more training to help him master his new role.
[113]There appears to have been inconsistent treatment of the appellant in the performance appraisal process in terms of the use of key performance indicators. I accept that the appellant was entitled to be confused about what was expected of him in the appraisal. I do not think that the evidence of Ms Brumby in the proceedings adequately explained how KPI's were going to be used during the appraisal. Further the minutes of the team meeting on 17 February 2014 make it reasonably clear that KPI's would not be a part of the performance appraisal process. In the circumstances the appellant's performance should not have been assessed by reference to KPI's.

[114]While the issue did not affect the appellant's past performance rating, it may have negatively impacted on his rating for the current period. In any event, it emerged as another issue which attracted criticism from Ms Brumby. Despite therefore rating the appellant's performance as effective, Ms Brumby used the occasion to criticise the appellant for other reasons. Consequently what should have been a routine recognition of satisfactory past performance, turned into a session in which dissatisfaction with the appellant was clearly communicated. It would not be unexpected in the circumstances for the appellant to experience anxiety or stress, an outcome confirmed by Mr McLean when he described the appellant's demeanour as "desperate".

[115]I accept that Ms Brumby did ask the appellant to remind her why she hired him during the 10 April 2014 meeting. In different circumstances this quip could have been regarded as a humorous response to the appellant's presentation of a long list of training needs. However, given the criticism that Ms Brumby levelled at the appellant earlier in the week, the comment was insensitive and inopportune and would have caused embarrassment and added to any earlier held anxiety about his job security and a diminishing standing in the organisation. Mr McLean was resolute in his evidence that the remark was offensive or demeaning.

[116]It was also an odd comment for Ms Brumby to make given that she had made it clear on earlier occasions that the appellant needed to upskill in the safety area, given that the appellant appeared to be responding to Ms Brumby's criticism that he had failed to adequately particularise his training needs, and given that the appellant appeared to be following the 30/60/90 process in identifying his requirements.
[117]While the appellant completed a training plan in early April 2014, it is more likely than not, that the delay in delivering training and upskilling the appellant, particularly in the safety area, contributed to his failure to perform to expectations. Ms Brumby knew as early as 27 February 2014 that there was a significant skills deficiency for the appellant in terms of the conduct of safety investigations. The delay in delivering training was attributable in part to a delay in the appointment of a senior investigator. Ms Brumby had told the appellant in late February 2014 that it would be a priority for the senior investigator, when appointed, to address the appellant's training and development needs. Unfortunately however this appointment was not made until July 2014. The appellant's location in Townsville may have hindered the delivery of training but the evidence did not address the issue. Mr McLean was specific in his criticism of a management failure to address training needs in a structured way.
[118]The appellant's deficiencies in both investigation and report writing were illustrated by the extent and nature of Ms Brumby's feedback on his North Shore safety report (Exhibit 21). Whether the deficiency was more pronounced in the investigative stage or the report writing stage is not clear on the evidence, but some evidence pointed to a difficulty with report writing. While Ms Brumby knew that the appellant needed training as a priority, none had been delivered by 22 May 2014.
[119]I am satisfied on the evidence that the 22 May 2014 discussion was not a routine review of current projects. Ms Brumby had invested a significant amount of time in her preparations. Either acting on feedback received from others or on her own initiative, Ms Brumby had concluded that the appellant's performance was deficient in a number of areas. This was not the occasion for a balanced review of strengths and weaknesses. This was a reasonably detailed examination of matters in which the appellant had not performed to expectations. The meeting had a clear disciplinary character. Ms Brumby employed a directive style and presented the allegations to the appellant ad seriatim. There was a determination on Ms Brumby's part to bring matters to a head and to put the appellant on notice that his performance was less than the required standard. In the circumstances the appellant should have been given prior notice of the nature of the meeting, informed of the performance gaps to be addressed or the matters in contention, and given time to prepare a response.

[120]While Ms Brumby would not have anticipated the appellant's decompensation, there were difficulties with the conduct of the meeting over the phone in that the appellant's demeanour could not be observed. It seemed reasonably clear on the evidence that as the meeting progressed the appellant started to disengage with the process. His responses were short and, to the extent that it could be discerned over the telephone, a negative demeanour would have been communicated. If there were signals emitted to the effect that the appellant was in a state of distress or psychological decompensation, they were not recognised or acted on by Ms Brumby. While Ms Brumby had no visual appreciation for the impact of her words on the appellant, his disengagement and failure to respond should have been noted. It was likely that given the level of Ms Brumby's preparation, and the absence of preparation on the appellant's part, the appellant was overwhelmed by the presentation of the case against him and did not have the capacity in the circumstances for the alacrity of thought and expression necessary to marshal an impromptu defence.
Conclusion

[121]The appellant was transitioning into a new role which included new responsibilities, an expanded coverage of stores, a new supervisor, and with less support given the retrenchment of his assistant. He took on a more complex and difficult investigative and preventative role with increased reliance on analytical skills and a new and much higher standard of report writing was required. The appellant experienced difficulty in managing the transition and in responding positively to a more direct and critical management style where his past achievements or historical standing in the organisation did not count for much.

[122]Prior to the restructure he had been well regarded by his supervisors and he had completed 25 years of exemplary service. The appellant's decompensation was attributable to factors emerging or developing over a relatively short period of time. The most significant of these factors were associated with management action. Repeated failures of management over time negatively impacted on the appellant's confidence, his self-esteem and his psychological well-being. If evaluated independently of each other, some of the management failures may appropriately be classified as blemishes. On a global approach however, a consideration of the cumulative and collective impact of management blemishes or failures lead to a conclusion that the appellant's adjustment disorder was causally connected with unreasonable management action.
[123]The appeal is allowed. The regulator's determination in its decision dated 22 June 2015 is set aside and replaced with a determination that the appellant's claim is one for acceptance. The matter of costs is reserved.

[124]I order accordingly.

No.	Date	Event
1.	18 November 2013 to 17 December 2013	My Manager, Kym Brumby provided me no direction, support or assurance following reporting a situation to her of which I found distressing. In a meeting following my initial reporting of the situation she told me she would "contact me in the next few days to discuss". Upon not receiving any further information from her I followed her up including the HR Manager (who had been at the original meeting and was aware of the situation) and his Manager to which she in turn responded in a blunt tone.
2.	7 April 2014	In a meeting with my Manager, Kym Brumby, she accused me of not bringing KPIs which I note had not been in use at Woolworths for 18 months previously. Upon talking to other co-workers following this meeting, they confirmed that they had not been asked by Kym Brumby to provide these documents. Kym Brumby also did not discuss my performance over the July- December 2013 period for which she was not my manager which I had prepared for and brought details of to the meeting. Kym Brumby then accused me of breaching confidentiality in relation to the above "speak up" matter and gave me no details or a chance to respond. She was confrontational in the meeting and did not acknowledge that I was given no direction from her as to what was expected of me. She also accused me of not arranging my time on a trip to Brisbane in my role as Investigator when I had made arrangements to spend time with another Investigator based in Brisbane but I was not given a chance to speak about this.
3.	8 April 2014	At a follow up meeting my Manager, Kym Brumby, treated me different from others and she would not allow me to explain or talk to her when I tried to speak to her further about the accusations she raised regarding the breach of confidentiality the day prior. She further told me to hand over a matter I was working on to another Investigator which confused me and I was unable to speak to her further about this. She also criticised my 30/60/90 days plan despite my basing it closely on a co-workers plan which had received positive feedback from Kym Brumby.
4.	10 April 2014	My Manager, Kym Brumby, embarrassed me in front of my peers at a team meeting by saying in a demeaning tone "can you remind me why I hired you."
5.	In or about 15 April 2014	My Manager, Kym Brumby, contacted me and was agitated and appeared upset with me and told me she didn’t understand where I was up to in the investigation at our last meeting and wanted to give the Investigation back to me. I told her that I tried to tell her and she told me that it was up to me to challenge her on matters like that.
6.	22 May 2014	My Manager, Kym Brumby, during a one on one telephone link treated me unfairly. She spoke to me in an aggressive tone sending quick one after the other accusations at me and made untrue assertions to my work performance. She provided me with little or no supporting evidence or an opportunity to answer.

[2016] QIRC 61

27 May 2016