Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 16
•22 January 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 016 |
PARTIES: | Connolly, Trevor and Cheryl v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/174 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 22 January 2015 |
HEARING DATES: | 24, 25 and 26 February 2014 |
MEMBER: | Industrial Commissioner Thompson |
| ORDERS: | 1. The Appeal is upheld. 2. The decision of the Regulator is set aside. 3. The claim is not one for acceptance. 4. The Regulator is to pay the Appellant's costs of and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ decision of Simon Blackwood (Workers' Compensation Regulator) ‑ Appellant bears onus of proof - standard of proof - balance of probabilities - witness evidence - witness credibility - worker suffered a personal injury - personal injury arose out of or in the course of employment - employment was not a significant contributing factor to the injury - Appeal upheld - claim not one for acceptance - decision of Regulator set aside - Regulator to pay Appellant's costs. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 136, s 550, s 535 Leigh Sheridan v Q-COMP (2009) 191 QGIG 13 CS Energy Limited v Q-COMP [2008] QIC 57 WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93 |
| APPEARANCES: | Mr P. Rashleigh, Counsel instructed by Colwell Wright Solicitors for the Appellant. Mr S. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
Trevor Connolly and Cheryl Connolly (Appellant) lodged with the Industrial Registrar a Notice of Appeal on 28 May 2013 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q‑COMP Review Unit (Q‑COMP) released on 9 May 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q‑COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to accept an application for compensation from Kerry Jahnke (Jahnke), in accordance with s 32(1) of the Act.
Relevant Legislation
The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Authority or an insurer in connection with the worker's application for compensation."
Note: This section of the Act was amended effective on 29 October 2013 with this matter determined subject to the legislation prior to the amendment.
Nature of Appeal
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by twenty witnesses.
The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
The witnesses for the Appellant were:
· Trevor Connolly (Connolly);
· Derry Fortescue (Fortescue);
· Cheryl Connolly (Cheryl Connolly);
· John Gaudion (Gaudion);
· Ben Ilka (Ilka);
· Toni Barry (Barry);
· Jessica Black (Jessica Black);
· Amanda Black (Amanda Black);
· Anthony Thelander (Thelander);
· Lisa Bolding (Bolding); and
· Lena Ogilvie (Ogilvie).
The witnesses for the Regulator were:
· Thomas Wilson (Wilson);
· Dr Benjamin Perkins (Dr Perkins);
· Jahnke;
· Paul Jahnke (Paul Jahnke);
· Noreen Morris (Morris);
· Benjamin Black (Benjamin Black);
· Summer Collins (Collins);
· Dr David Phang (Dr Phang); and
· Dr Benjamin Duke (Dr Duke).
Appellant
Connolly
Connolly operates Fish on Flinders (Flinders), a seafood restaurant/takeaway business at Sandgate employing around 50 staff who are predominantly part-time or casual employees. The business employed Jahnke who, for a period in 2012, held the position of store manager.
On 25 November 2012 he had cause to raise an issue with Jahnke regarding insufficient staff at Flinders the previous day which became "very volatile" due to her yelling at him. Paul Jahnke who was present at the time joined in and he too was "yelling and carrying on". At the conclusion of the exchange Jahnke left and never returned to the business.
Connolly refuted allegations that he had ever yelled, spoken aggressively or thrown masking tape at Jahnke. There were times when he had raised matters with her about operational matters but had never done so in an aggressive manner. He had witnessed Jahnke raising her voice at staff and was reluctant to talk to her about her behaviour as it was likely to "cause a fight".
Connolly recalled an incident where Jahnke had purchased product in the form of waffles, paid cash, had not obtained a docket and of having to raise the matter with her due to an inability to process such a purchase without an invoice. There was also an issue involving Paul Jahnke who was working at Flinders, in which he was required to comment on an operational issue. He could not recall ever having any argument with Jahnke over the running of the business.
Under cross-examination Connolly gave evidence of Jahnke commencing with Flinders in 2010 as a general hand but denied having discussions with her about the then manager at Flinders and of requesting her to formulate a document of complaint in order that the manager may be dismissed [Transcript p. 1-27]. He further denied having Jahnke create a written warning which was subsequently given to the manager [Transcript p. 1-27]. Connolly could not recall the circumstances of the manager leaving but denied she had been fired [Transcript p. 1-28]. Towards the end of 2011 Jahnke became the manager of Flinders with the terms of the employment agreed in February 2012 which included a bonus of 10 per cent of net profits to be paid quarterly [Transcript p. 1-29]. In the time Jahnke was manager of Flinders the business turned gross profits but never a net profit [Transcript p. 1-30].
Evidence was given around the operation of surveillance cameras at Flinders with Connolly denying that in April 2012 as a result of observing Jahnke and Morris "chit‑chatting instead of working" he had words with Jahnke. He denied being critical of her around issues associated with name tags not being worn by staff [Transcript p. 1‑31]. He denied an incident around the air-conditioning controls had resulted in him instructing Jahnke to fire the staff member who had changed the controls [Transcript p. 1-32]. Connolly denied he told Jahnke that an employee who had not taken a Liberal National Party (LNP) how to vote form from him should be sacked because he was a Labor or Green voter [Transcript p. 1-33].
There were other denials around Connolly's behaviour which included:
· a milk bottle incident;
· telling Jahnke it was her role to have staff hate her;
· a cutlery incident - November 2012;
· incident involving Collins having been taken to a doctor by Jahnke following a burn injury suffered at work;
· accusing Jahnke of not caring about the business because of extra costs in workers' compensation premiums;
· filling sauce containers too full;
· waffle invoice issue; and
· incident involving Connolly's daughter's hours of work.
All of the above incidents which were said to involve a level of conflict between Connolly and Jahnke and were denied by him as having occurred [Transcript pp.1-34 to 39].
Connolly denied any knowledge of Jahnke having presented a medical certificate in May 2012 for two days off following the incident involving his daughter's hours of work [Transcript p. 1-40.
Connolly did not recall going in the company of his wife to the Jahnke residence in October 2012 to speak to her about a customer complaint [Transcript p. 1-41]. On 25 November 2012, the final day of Jahnke's employment, questions were put to Connolly about the conversation he had with her on that day. He denied that:
· Jahnke had apologised for cancelling staff (the prior evening) due to rain;
· telling her she was useless and an idiot; and
· speaking to her in an aggressive fashion [Transcript p. 1-44].
Connolly denied he had been told by Jahnke to "stop yelling at her" and he had "finally broken her" [Transcript p. 1-45].
Connolly was aware of covert surveillance undertaken of Jahnke in Babinda in November 2013 when she had attended a function. He could not recall whether he had paid for the surveillance "yet". He acknowledged there was documentation at Flinders in recent times that revealed in the 1990s Jahnke had been in trouble with the law for an offence of dishonesty [Transcript p. 1-47].
Connolly had concerns that Jahnke had travelled overseas during the currency of her incapacity acknowledging his solicitors had contacted WorkCover on 27 June 2013 [Exhibit 2] [Transcript p. 1-49].
Fortescue
Fortescue lives in accommodation at the rear of Flinders and whilst he did not know Jahnke by name, he noticed her at the back of the restaurant area once or twice a day. At a time at least 12 months previous he observed her at the Brighton Bowls Club undertaking food preparation in the kitchen area on five separate occasions.
Under cross-examination Fortescue explained he was able to observe Jahnke at the back of Flinders from his accommodation which he leased from Connolly [Transcript p. 1-53]. When he observed her at the Brighton Bowls Club he had been having a drink but could not give a date as to when this occurred [Transcript p. 1-54].
Cheryl Connolly
Cheryl Connolly's role in the operation of Flinders was to pay invoices and undertake general cleaning duties. Additionally she at times viewed CCTV mainly to do with questions over whether the correct change had been given following a complaint from a customer. Cameras were located in other parts of the building. On her interactions with Jahnke at the time she managed Flinders, the evidence was whilst she ran the business they left it to her but they did at times question things.
Cheryl Connolly had never raised her voice or yelled at Jahnke in the interactions. On 25 November 2012 she overheard Jahnke and her husband discussing things but could not remember what they were saying. Her husband had "kept pretty cool".
Under cross-examination Cheryl Connolly was unable to given evidence that the exchange between Jahnke and Connolly on 25 November 2012 was "a heated discussion" but conceded it was upsetting enough for Jahnke to pack up her gear and leave the premises. In the past there had been discussions between Jahnke and her husband but she did not accept they were arguments [Transcript p. 1-57]. Whilst the business was increasing, more product was being ordered and cooked and greater profits were being made, it was Cheryl Connolly's evidence it was not "directly" as a result of Jahnke's input [Transcript p. 1-58].
Cheryl Connolly acknowledged there was a surveillance camera in the preparations area and could recall an incident in early 2012 where she and her husband had watched Jahnke and Morris "chit-chatting" and not working which resulted in the Connolly's having words with them [Transcript p. 1-58]. Cheryl Connolly had no recall of an incident involving the filling of sauce bottles where it was alleged she had said "Don't listen to him [Connolly]. He's a bloody idiot" [Transcript p. 1-59].
When asked if she remembered her husband saying to Jahnke "shut up and do what I tell you to do", she replied "I don't know really. He might've" [Transcript p. 1-59]. Cheryl Connolly had no recall of an incident around the air-conditioning but could remember her husband putting tape on the controls to stop people fiddling with them [Transcript p. 1-59]. She had limited memory of an incident involving Jahnke and an invoice over the purchase of waffles [Transcript p. 1-60]. Cheryl Connolly recalled going to the Jahnke's residence with her husband with a view to asking Jahnke about a customer complaint [Transcript p. 1-61].
Gaudion
Gaudion operates a food service that delivers product to clubs and shops including Flinders which had been a client for 20 years and at times dealt with Jahnke. At some stage he had a discussion with her about catering at the Brighton Bowls Club and recalled delivering product to the club. Gaudion identified a number of invoices for product supplied to Jahnke between 2 November and 21 December 2012 [Exhibit 4].
He had occasion to talk to Jahnke regarding payment for the product delivered to the Brighton Bowls Club but never received any money at the time although he acknowledged he was eventually paid.
Under cross-examination Gaudion confirmed the invoices were for the Brighton Bowls Club and not Flinders [Transcript p. 1-68]. The business eventually received a cheque from the Jahnke's (back-dated) some six months after it was due. Gaudion was unable to remember who had him sign a statement in June 2013 yet was giving evidence relating to events in November 2012 that had been fairly clear [Transcript p. 1-69]. Gaudion then recalled the person was a Wendy Wells [Transcript p. 1-70].
In re-examination he confirmed the orders for the Brighton Bowls Club had been made by Jahnke.
Ilka
Ilka, an employee of Flinders for five years, met Jahnke when she worked at Flinders and gave evidence of her behaviour once she occupied the manager position. At first she was nice to everybody but he noticed she became prone to losing her temper which included verbal arguments with customers that got quite heated. If she did not get her own way she would become aggressive and that applied when her way was different to the way Connolly would do things. Ilka made further criticisms of Jahnke's management style which included:
· bringing people's personal lives into the conversation;
· was particularly nasty to one of the staff;
· tended to be quite pushy in her opinions;
· put customers last; and
· was unwilling to work out or negotiate problems with customers.
Under cross-examination Ilka recalled on quite a number of occasions he heard quite heated discussions between Jahnke and Connolly but they were nothing he would not have expected between a manager and their boss [Transcript p. 1-78]. Ilka accepted Connolly had some trouble with Jahnke insofar as he would give her certain directions and she would argue back [Transcript p. 1-79].
Barry
Barry had been employed at Flinders since January 2010 having met Jahnke at work prior to her becoming the manager. She noticed that Jahnke in her capacity as manager lacked the ability to take Connolly's directions as the owner and failed to manage the business the way he wanted. There was a lot of interaction between them and whilst Connolly was firm with Jahnke, Barry never witnessed him bullying her.
Under cross-examination Barry recalled Jahnke telling her she had a written warning for the then manager (Hillary) and was trying to get her out of the business [Transcript p. 1-81]. Barry claimed to have witnessed disagreements between Jahnke and Connolly but there were no arguments [Transcript p. 1-82].
Jessica Black
Jessica Black had been employed at Flinders for the past 10 years with a break in the employment due to having a child. On her return in 2012 Jahnke was employed as a "regular employee" before becoming the manager. She never witnessed any interaction between Connolly and Jahnke.
Under cross-examination Jessica Black admitted she admired Connolly and Cheryl Connolly and considered herself close to Connolly. She had witnessed Connolly becoming annoyed if the business was not being run in accordance with his directions [Transcript p. 1-84].
Amanda Black
Amanda Black had worked at Flinders for 12 years with a three year break when she had children. When she returned in 2012 Jahnke was not the manager but assumed the role later. She did not find her very professional, offering an opinion that she was not manager material and did not notice any untoward behaviour by Connolly towards Jahnke.
Under cross-examination Amanda Black gave evidence of noticing Jahnke override direction given by Connolly which did not please him [Transcript p. 1-86].
Thelander
Thelander, a veterinary consultant, operated a veterinary practice at Chermside in the 1980s where he had employed Jahnke for about six years. After she had been dismissed, an audit of the business was conducted where it was discovered there was at least $90,000 missing over a period of four to five years. Jahnke faced criminal prosecution and there were civil proceedings where after a judgement was issued he was able to recover $40,000 from the sale of the Jahnke residence with an amount of $29,000 remaining unpaid. Jahnke had bankrupted herself to avoid paying the debt.
Under cross-examination Thelander confirmed his evidence regarding his pursuit of the monies taken by Jahnke [Transcript p. 2-8].
Bolding
Bolding, a customer advisor with WorkCover, had an involvement in the early stages of determining Jahnke's claim for workers' compensation and upon receiving a promotion inherited the claim when a colleague changed departments.
On 3 December 2013 she had a discussion with Jahnke who at the time appeared quite distressed about the upcoming court case. In the course of the conversation she raised with Jahnke the prospect of a return to work who in response became quite distraught at this time due to her emotional state. Jahnke at the time had a medical certificate certifying her totally incapacitated for work.
Under cross-examination Bolding recalled in the telephone conversation Jahnke was extremely upset at the prospect of speaking to her barrister and that appeared to be foremost in her mind [Transcript p. 2-13].
Ogilvie
Ogilvie, a private investigator under instruction from the Appellant's solicitors, undertook surveillance of Jahnke on 29 November 2013 at Babinda in North Queensland. The surveillance took place at the Babinda Hotel where a fashion launch was taking place in the function room. She took footage intermittently on the evening whilst Jahnke undertook a range of duties that included:
· assisting customers;
· dressed mannequins;
· folded clothes; and
· passed out nibbles.
Jahnke was wearing a name badge and spoke to other people who were also wearing badges and left the function at around 9.30 pm after having first been observed around 6.30 pm.
Under cross-examination Ogilvie explained the methods relied upon to conduct her surveillance [Transcript p. 4-6]. The fashion launch was for an organisation by the name of R-Lee Fashions [Transcript p. 4-7].
Note: The surveillance DVD was tendered in the proceeding following a viewing [Exhibit 10].
In re-examination Ogilvie gave evidence Jahnke's name badge had "R-Lee Fashions" written on it along with her name. The only information given to her prior to conducting the surveillance was that Jahnke would be attending the function.
Regulator
Wilson
Wilson, a semi-retired IT person, was the Deputy Chairman of the Brighton Bowls Club and held that position in October 2012 when the club advertised for potential caterers. The contract was awarded to Capers Catering, an operation run solely by Paul Jahnke.
Under cross-examination, Wilson was questioned regarding reports presented to meetings at the club between 16 December 2012 to 18 January 2013 which indicated Kerry and Paul Jahnke were trading under the name of Capers Catering which Wilson described as an "unfortunate choice of words" [Transcript p. 2-18].
There were references in the reports to the Jahnke's registering the trading name [Transcript p. 2-19]. In reports between 18 January to 15 February 2013 there was the reference to "Kerry and Paul still haven't formally responded to my email requesting the trading name, ABN etcetera" with Wilson giving evidence "they" were still going through the process [Transcript p. 2-20].
In a report dated 16 February to 15 March 2013 there were further references to the Jahnke's in the plural [Transcript p. 2-20].
In re-examination Wilson indicated that contract discussions were with Paul Jahnke and his understanding of Jahnke's involvement in the catering was she would help Paul Jahnke to set up the kitchen and bistro prior to the commencement of operations, which was what happened.
Dr Perkins
Dr Perkins, a medical practitioner, currently practices at a Bracken Ridge clinic and was practicing at the clinic on 31 May 2012 when he treated Jahnke. His clinical notes referenced that "PT visibly teary and distressed" and that a medical certificate was issued to her rendering her unfit for her usual occupation from 31 May to 1 June 2012. A referral was made to a clinical psychologist.
Under cross-examination Dr Perkins had noted there was no history of depression or other mental health concerns at the time (31 May 2012) and was taken to clinical records which had recorded the following in terms of Jahnke:
· 30 August 2007 - "acute situational crisis with husband's depression and low mood";
· 14 July 2005 - "recent work stress, secondary to harassment by chef"; and
· 9 September 2009 - letters from Dr Carnie of the practice which recorded:
·"she stopped taking her medication and this has resulted in deterioration of mood, deterioration of sleep levels, deterioration in joint symptoms, increase in food intake".
Dr Perkins indicated the matters were suggestive of a previous history of depression with some of the symptoms consistent with low mood. He was unsure if such a diagnosis was made and he had only ever seen her on the one occasion (31 May 2012) [Transcript p. 2-28].
There was a record of Jahnke having been admitted to a mental treatment facility in 1991 for three months which he accepted would suggest there were previous mental health concerns [Transcript p. 2-29].
Jahnke
Jahnke, currently unemployed, had for a period of time worked for the Connolly's at Flinders. She have evidence initially of helping her best friend Rhonda start a business named "R-Lee Fashions" by assisting with the launch in Babinda. She also has two children that reside in the vicinity of Innisfail. Prior to assisting her friend she had discussed the issue with Dr Duke who had encouraged her to get away from Brisbane where she was having stress and panic attacks as a result of being watched and followed continuously.
At the launch she encouraged her daughter-in-law to try some clothes on but was not paid any monies or had any financial association with R-Lee Fashions.
Jahnke gave evidence of having been convicted for fraud stating she had betrayed a trust whilst working at a veterinary clinic in Chermside. The incident which happened 20 to 25 years previous, resulted in her serving six weeks in prison. Leading up to going to prison she had been admitted to hospital for a psychiatric evaluation. There were financial consequences as well in that they had to sell their property and the full amount had been repaid.
In evidence, Jahnke indicated she commenced employment as a kitchen hand at Flinders in mid-2010. In the course of her employment she was approached by Connolly and requested to draft a written warning for the (then) manager. After the warning letter was given to Connolly she was aware he took the manager into the function room for about an hour after which the manager emerged "visibly upset, collected her belongings and left".
About two days after the manager's departure, Connolly offered Jahnke the manager's position on a wage of $1,000 per week and 10 per cent of net profits as a bonus to be paid quarterly.
In February 2011 whilst working in the "prep" room she was approached by Cheryl Connolly and along with a co-worker (Morris) told to stop talking and start working. She was told the Connolly's had been watching them on video and Jahnke had made a comment about that should not be happening. About five minutes later Connolly came charging into the room and yelled at them stating he will "damn well watch us whenever he wants to watch us work". He told her she was useless and should not be friendly with staff as it was her job to make them hate her. She told him she was not going to be his "punching bag".
When her first bonus payment was due in 2011 she approached Connolly who yelled at her and said they were not making money and he had no intentions of paying a bonus until they were making money. She gave evidence of significant increases in product being sold and increases in staff from a first roster with eight staff and her final roster with 22 staff.
Jahnke recalled an incident in January 2012 where Connolly had yelled at her over staff not wearing name badges and had thrown a roll of masking tape at her, telling her she was useless.
On the morning of the 2012 State election, Connolly had informed her he would be handing out how to vote forms for the LNP at Brighton. At around 11.00 am he came to the shop for breakfast at which time he told her he was very upset because one of his staff would not take a how to vote form from him. He yelled at her and told her to sack the person concerned because he was a Labor or Green voter which made him an idiot and he did not want idiots working for him.
In February 2012 Connolly had become upset over someone touching the air‑conditioning controls the evening before and in an aggressive manner he instructed her to call all staff on shift that night and to sack the person concerned. On that occasion he also told her she was useless and an idiot when she was unable to contact staff.
On another occasion there was an incident involving the filling of sauce bottles which according to Connolly she was providing customers with too much sauce. Cheryl Connolly had expressed a different view which resulted in Connolly getting "very much in my face" and yelling at her that it was his business.
Following her attendance at a trade food show she had sourced a new product in the form of Belgium waffles which, upon obtaining three boxes, she had been required to settle the account in cash and given a computer generated receipt. Reimbursement was made through the register however the next morning there were phone calls from the Connolly's where Cheryl Connolly seemed to accept her explanation but Connolly did not and accused her of doing him out of $150.
At around the same time as the waffle incident there was another incident on 31 May 2012 relating to the employment of the Connolly's daughter who had worked extra hours causing a double up of staff. On raising the matter with Connolly she was again told she was a useless manager and yelled at her to the point she left the shop in a very upset state, crying, sobbing and having trouble breathing. She attended the Bracken Ridge Medical Centre and saw Dr Perkins who gave her a medical certificate for some time off work as a result of stress. She presented the certificate to the employer informing Cheryl Connolly it was for stress at which time she laughed at her.
Jahnke recalled an incident about a milk bottle being put in the bin without a lid on it which resulted in Connolly telling her she was a useless manager.
A more serious incident occurred in October 2012 when a staff member (Collins) suffered a burn on her arm and after phoning Connolly to inform him of the incident she took Collins to a medical centre at Strathpine. On returning to the store Connolly fronted her about having to pay for Collins' medical treatment which would increase his workers' compensation premiums and if she was any decent sort of a manager who cared about his business she would not have taken her to a doctor.
In the same month there had been an incident at Flinders where some customers had become unruly and she had told a woman that if she was not happy with the service her money could be refunded. Jahnke in the end delivered the meal to the customer and apologised. The next day (her day off) on returning home found that her husband had let the Connolly's into their home. Connolly demanded to know why she was rude to customers and causing harm to his business and refused to accept her explanation. Again she was the subject of being told she was useless. In October 2012 Paul Jahnke started a catering business at the Brighton Bowls Club and six weeks after it commenced he came up with the name Capers Catering. Prior to this he had been employed at Flinders as a cook/cleaner/kitchen hand. The assistance Jahnke provided went to her connections with stock through Enright Pty Ltd. In respect of invoices [Exhibit 4] for the Bowls club she acknowledged she was the "Kerry" mentioned but only ordered some of the product and her husband ordered the remainder. Her involvement in Capers Catering was to assist in setting the business up and be there in the background.
On 20 November 2012 she fell down some stairs at work and after informing Connolly by phone left the shop to seek medical attention. Unable to access a doctor, she consulted with a chemist and obtained medication. She had two days off because of the pain.
On 24 November 2012 due to it being a rainy day she cancelled staff to a minimum however none of the cancelled staff worked at the Brighton Bowls Club that evening or at any other time. The only staff member who worked for Paul Jahnke had been Morris who helped him out a few times.
That evening she attended the Brighton Bowls Club to help Paul Jahnke if necessary but ended up playing the poker machines. At around 8.30 pm she noticed she had a number of missed calls from Flinders and immediately rang and spoke to Ilka who told her things had got busy, but not to bother coming down as everything was under control.
On the following morning on arrival at work, Connolly became very aggressive towards her about staffing issues from the previous evening and told her she was useless. He disappeared for a while leaving her shaken and crying only to return and confront her about being useless and of having done absolutely nothing for his business. The exchange was witnessed by Benjamin Black, Collins and Morris as well as customers in the shop. She requested her husband who was present to get her out of there and other staff members left as well which included Morris.
Jahnke confirmed the record of conversation with Bolding on 3 December 2012 was a fair record of that conversation.
She had a number of concerns regarding these proceedings, being stalked and running into the Connolly's which caused her not to leave the house because of the fear of being followed and watched. In March 2013 she had been admitted to the Belmont Private Hospital under the treatment of Dr Duke.
In 2013, encouraged by Dr Duke and her husband, she took an overseas holiday informing WorkCover prior to taking the trip.
Under cross-examination Jahnke denied on 29 November 2013 she was doing voluntary work in Babinda but was simply supporting a friend [Transcript p. 4-49]. She did not accept what was depicted on the surveillance footage was undertaking work [Transcript p. 4-50]. She gave evidence of a deliberate criminal conduct, stealing from her employer and accepting she had a history of dishonesty [Transcript p. 4-53]. She accepted she had past psychiatric issues dating back to 1991 and included issues after that date, none of which were disclosed to Dr Perkins on 31 May 2012 [Transcript p. 4-53]. As the psychiatric conditions were from long ago she did not inform Dr Perkins because she "didn't think it counted" [Transcript p. 4‑54]. She conceded she may have told Dr Duke that she had no previous psychiatric issues [Transcript p. 4-55].
Jahnke acknowledge she was involved in the setting up of Capers Catering stating it was set up in mid October 2012 and at times she served up meals at the Brighton Bowls Club prior to 25 November 2012 but not after that date [Transcript p. 4-57]. Questions were put to the witness about various interactions with Connolly which included:
· being observed on surveillance cameras not working;
· name badge incident; and
· throwing a roll of masking tape at her.
Her evidence around the masking tape issue was inconsistent with claims it landed on a table in front of her, it had hit her, it had slid across the table on to her stomach [Transcript pp. 4-60 to 61].
Further issues were raised which included:
· employee failing to take LNP how to vote card;
· adjusting air-conditioning temperature; and
· over filling sauce bottles.
Jahnke did not accept Connolly in all the engagements was "stayed" but he had "yelled [Transcript p. 4-62]. On the incident regarding the waffle invoice, she was "pretty sure" the invoice had everything that was required [Transcript p. 4-63].
Jahnke confirmed her evidence regarding Connolly repeatedly yelling at her and telling her she was useless and denied she was trying to paint him as "some sort of ogre" [Transcript p. 4-64].
On 25 November 2012 in the discussion she had with Connolly about staff shortages the previous evening she accepted the proposition one of the issues had been about Flinders staff working at Brighton Bowls Club that evening, but it had not happened. Jahnke denied she was aggressive towards him but "was firm and I had to be firm" [Transcript p. 4-65].
Jahnke on the trip to Babinda in November 2013 gave evidence it was an opportunity to visit her children and see her grandchildren and to support her "best friend in the world" [Transcript p. 4-67].
At this stage of the cross-examination the surveillance DVD was played in the court with a series of questions being put to Jahnke about her conduct on the event with the only concession made by Jahnke was that she wore a name badge with the name R‑Lee Fashions and her name [Transcript pp. 4-68 and 69].
In a question from the Commission about the instruction from Connolly to sack a worker because he may have voted Labor, her evidence was that she did not sack him and Connolly never raised the matter again [Transcript p. 4-70].
Paul Jahnke
Paul Jahnke, the husband of Jahnke, also worked at Flinders in the capacity of a part‑time employee in 2012. There was an incident in October 2012 where he gave a customer with a takeaway food container normal cutlery rather than plastic cutlery. Connolly was walking through the area at the time and spoke aggressively to him about the policy regarding the issue of cutlery. Later in the evening there were further exchanges with Connolly which included a heated interaction with his wife [Jahnke]. Paul Jahnke gave evidence of the Connolly's visiting his home on the last Monday in October 2012 about a customer complaint. Jahnke had arrived home shortly after they had arrived and was the subject of a most aggressive approach by Connolly demanding to know what had happened. Before a response could be given by Jahnke the Connolly's left.
In late 2012 he applied to an advertisement in the local paper for someone to provide a food service at the Brighton Bowls Club. As he had no background in food he took his wife to the meeting at the club so they could see he had someone to guide him in the venture.
He obtained the contract and went about starting the business. When questioned in relation to invoices regarding the supply of product for the period 2 November to 21 December 2012 his evidence was Jahnke would order the product as she was ordering product for Flinders at the same time. The business was operated under his ABN with Jahnke's main involvement being in the setting up and presentation of food.
On 24 November 2012 he catered for 32 persons and was assisted by Morris and her daughter and his grandson. Jahnke was present and helped set up the smorgasbord but most of the time she played the pokies or smoked cigarettes with other ladies.
The following day he arrived for work at Flinders at around 7.15 am with Jahnke arriving around 8.00 am. On Jahnke's arrival she was required to meet with the Connolly's and whilst in that meeting he was able to hear "quite a commotion" with Connolly being "very, very vocal and, obviously, I heard Kerry responding". Morris came to him and said words to the effect "I think Trevor is going to hit Kerry". Jahnke told him [Paul Jahnke] to leave her alone and was visibly upset. After further abuse from Connolly towards Jahnke they left the premises along with Morris.
Under cross-examination the evidence around Jahnke ordering all of the product for the Bowls club changed to having not ordered all of them and that he and Morris had put orders in with the supplier [Transcript p. 4-78]. With regards to reports of the Bowls club from 16 December 2012 to 15 March 2013 that referred to "Kerry and Paul" trading, the evidence of Paul Jahnke was that was "not the fact" [Transcript p. 4‑80].
On 25 November 2012 with regards to the heated argument between Connolly and Jahnke, he stated "Most of the time I heard Mr Connolly. I have no doubt my wife responded" [Transcript p. 4-83]. In terms of the allegations Connolly raised his hands in rage towards Jahnke, he did not say anything to stop it because he had "seen it happen repeatedly throughout the last two years" [Transcript p. 4-84]. Paul Jahnke indicated he did not witness Connolly about to hit Jahnke [Transcript p. 4-84].
On 24 November 2012 Paul Jahnke gave evidence of it being a rainy day but detail about the level of such rain was sketchy [Transcript p. 4-86].
Morris
[101]Morris worked at both Flinders and the Brighton Bowls Club at various times and gave evidence that on one occasion when Cheryl Connolly had been watching her and Jahnke on surveillance cameras whilst they prepared food and had told them they were not working but she could not remember if Connolly was involved in any way. Morris recalled witnessing an exchange with Jahnke and Connolly following an incident where an employee had been burnt at work and he admonished her for taking the injured worker to a doctor as it would be putting up his workers' compensation premiums. He had told Jahnke the injured worker "shouldn't be working here".
On 25 November 2012 Morris observed an incident involving Jahnke and Connolly in which he was yelling at her and raising his hands. She became concerned and told Paul Jahnke she thought Jahnke was about to get hit. After being called useless and stupid, Jahnke was crying and said "you've finally broken me". Morris was feeling scared and left the premises with the Jahnke's. At the time she worked for Flinders and Paul Jahnke there was no conflict as the shifts never clashed.
Under cross-examination she said her memory of the incident with the staff member suffering burns was "probably a bit hazy" [Transcript p. 4-92] but recalled Connolly saying "if she's stupid enough to burn herself she shouldn't be here" [Transcript p. 4‑92]. On the ownership of Capers Catering, she "thought it was his [Paul Jahnke's] business" [Transcript p. 4-93].
[104]Morris gave evidence of Connolly being in her face and thinking he was going to hit her but could not give a time or date when that happened but it involved an issue about not closing the cold room door [Transcript p. 4-94].
Benjamin Black
[105]Benjamin Black is currently employed at Flinders with 13 plus years' service. He gave evidence that during Jahnke's employment the sale of product went up "quite a bit" with a figure of 15 per cent being a modest number. He was working on 24 November 2012 at Flinders which was a busier than expected day. It was so busy he did not have time to contact Jahnke in relation to attending for work, even though it was his job to make contact.
On 25 November 2012 he recalled an exchange between Connolly and Jahnke which involved yelling and was in front of lots of customers. He recalled Morris was there "snooping around listening" but could not remember details of the discussion beyond Jahnke not being there the previous evening. He was aware about a posting on the notice board of Jahnke's criminal history but was not aware who posted the information.
Under cross-examination Benjamin Black's evidence was on 25 November 2012 both Connolly and Jahnke were yelling [Transcript p. 5-6]. On the increase in product it related to turnover but had nothing to do with profit [Transcript p. 5-7].
Collins
[108]Collins previously worked at Flinders and in or around September/October 2012 she burnt herself making coffee upon which she was taken by Jahnke to the doctor. She made an application for workers' compensation receiving reimbursement for medical expenses but not for the hours of work she lost.
On 25 November 2012 she heard yelling coming from the back of the shop from Connolly with Jahnke yelling back in defence.
Dr Phang
Dr Phang, a General Practitioner treated Jahnke on 27 November 2012 where his clinical notes recorded "Complaining of workplace harassment and bullying by the principal". A WorkCover certificate was issued rendering her incapacitated for work for the period 26 November to 16 December 2012.
Under cross-examination Dr Phang gave evidence that 27 November 2012 was the first time he had seen the patient and the notation in the clinical notes "Alleged persistent harassment and workplace bullying by proprietor" was based on what Jahnke had told him [Transcript p. 5-13]. There was reference in the clinical notes of the patient needing "two to three weeks off work" which was a request from the patient [Transcript p. 5-13].
Dr Duke
[112]Dr Duke, a specialist consulting psychiatrist prepared a number of reports in reference to Jahnke dated:
· 30 November 2012;
· 14 January 2013;
· 18 January 2013;
· 25 March 2013; and
· 19 November 2013.
The reports were tendered in proceedings as a bundle [Exhibit13].
[113]Dr Duke in his evidence-in-chief indicated the patient had "problems since May" [2012] which included being teary, upset and depressed. In the report of 30 November 2012 he recorded:
"Kerry presents with an acute stress reaction on an underlying background of a major depressive disorder".
At that time he had diagnosed she was suffering a psychiatric illness consistent with a major depressive disorder that had been present from May of that year with an increased level of distress consistent with an acute stress reaction as a result of difficulties within the workplace in the immediate lead up to the referral to see him.
[115]Information contained in the reports about concerns pursuing a workers' compensation claim as a result of having previously been abused by the owner had been relayed to him by the patient.
[116]Dr Duke had recommended Jahnke pursue a workers' compensation claim. Later in time she had become highly distressed at the prospect of legal issues surrounding her WorkCover claim. Dr Duke informed the proceedings that in the preparation of his reports Jahnke had not advised of any "past psychiatric history, no past contact with mental health services".
[117]Dr Duke gave evidence of Jahnke having begun to isolate herself at home following the workplace incident and of encouragement given by him for her to get out of the house including getting away from Brisbane which included numerous times she had travelled to Innisfail.
[118]In March 2013 the patient was admitted to Belmont Private Hospital due to her former employer and co-workers bringing up details of her past life which included her going to prison due to criminal fraud.
[119]Under cross-examination Dr Duke's evidence was the reports prepared by him were prepared on the history provided by the patient and observations on her mental state during the interviews. Dr Duke conceded in the initial consultations Jahnke had not told him about her past psychiatric history [Transcript p. 5-30]. Dr Duke acknowledged Jahnke's history regarding matters of mental health included:
· various times under mental health programs;
· had a borderline personality disorder;
· had mixed anxiety and depression; and
· involved in an affective disorder program on two occasions.
Dr Duke accepted Jahnke had a "significant past history" [Transcript p. 5-30].
Dr Duke had subsequently became aware of mental issues relating to Jahnke in July 2005, August 2007 and September 2007 [Transcript p. 5-31].
[121]On the question of whether Jahnke having been diagnosed with a major depressive disorder previously was endogenous, Dr Duke replied:
"Certainly if - if somebody has a previous episode of depression, they're more likely to have further episodes of depression. But, in many ways, it depends upon the context in which those depressive episodes occur, whether they tend to appear for no apparent reason, or whether they tend to occur in response to specific stresses. The depression that occurs in response to specific stresses is less likely to occur endogenously, but a depressive episode that occurs out of the blue, as it were, does predispose somebody to experiencing further depressive episodes arising out of the blue." [Transcript p. 5-31]
[122]When the issue of a number of reactions of the years was put to Dr Duke, his evidence was:
"It doesn't necessarily suggest that it's more likely the depression is endogenous, but it certainly does suggest that there are a degree of vulnerability to not cope with stressful situations well." [Transcript p. 5-31]
Dr Duke could not specifically recall if Jahnke had raised with him her involvement in a fashion function prior to her trip to Innisfail and there was nothing contained in his clinical notes prior to 29 November 2013 indicating it had been discussed [Transcript p. 5-32].
Dr Duke's evidence regarding his later acquired knowledge of Jahnke's medical history was that he was not inclined to change the diagnosis or the impression that he had about the causation of the diagnosed injury [Transcript p. 5-33].
Submissions
Regulator
The Regulator provided extensive written submissions (30 pages) which included a chronology of events for the period mid-2010 when Jahnke commenced employment at Flinders until her attendance at the R-Lee Fashions launch on 29 November 2013.
[126]In identifying the grounds for appeal relied upon by the Appellant, the evidence in these proceedings was said not to relate to the question of management action and there was a denial that any such management action had occurred between the Connolly's and Jahnke. These premises are not open to the Appellant to seek to rely upon s 32(5) of the Act as a provision of exclusion to remove a compensatable injury from the operation of s 32 of the Act.
[127]For the Appeal to succeed, the Appellant would need to establish:
· at the relevant time Jahnke was not a worker pursuant to s 11 of the Act;
· that she did not sustain and injury; and
· that any injury sustained did not arise out of or in the course of employment or was one to which employment was not a significant contributing factor.
In short compass the submission, in addressing the above points, argued there was no dispute that Jahnke at the relevant time was a worker employed at Flinders under a contract of service, nor was there medical evidence adduced in the proceedings that challenged the diagnosis's of Dr Duke and Dr Phang that she sustained a psychiatric injury attributable to events in the workplace.
[129]On the significant contributing factor the ongoing conflict between Connolly and Jahnke was likened to a "clash of personalities" similar to which was considered by Hall P in Sheridan v Q-COMP[1] where the "egg-shell psyche" principal was an authority for the proposition that the employer takes the employee as it finds them and in particular the existence of what might colloquially be called a "clash of personalities" is not sufficient to grounds to deny a worker his or her claim to compensation.
[1] Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
[130]The behaviour of Connolly amounted to an inappropriate and derogatory conduct towards Jahnke in the course of her employment and continued to the present day by way of:
· stalking by way of continuing surveillance;
· defamation (by malicious publications of Jahnke's prior offences);
· orchestrated bullying (in the Appellant's conduct after commencement of and during the proceedings); and
· prosecution of these proceedings with no better purpose than to vilify her and cause distress.
[131]The evidence was uncontroverted that the events in the workplace were a significant contributing factor to the contraction of a psychiatric injury by the worker. Any evidence of her having performed work duties elsewhere in the period at or around her cessation of work at Flinders does not detract from the diagnosis of injury or the fact it was occasioned by the conflict experienced with the Connollys.
[132]On the matter of management action, it was difficult to envisage how it might be alleged that any injury sustained by the worker had arisen out of "management action" and enliven s 32(5)(a) and (b) of the Act. Should reasonable management action fall for consideration, it was submitted the employer through the medical certificate of 31 May 2012 was "fixed with the knowledge" of an existing psychiatric illness on the part of the worker even though they are said to have no recollection of the said medical certificate.
[133]The matters of CS Energy Limited v Q-COMP[2] and WorkCover Queensland v Kehl[3] were cited as authorities on "fixed with knowledge" of psychiatric distress.
[2] CS Energy Limited v Q-COMP [2008] QIC 57
[3] WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93
[134]The submission addressed the witness evidence supportive of the Appellant's case drawing conclusions that included:
· Connolly
·inability to recall details of events and occurrences between himself and Jahnke;
·recollection of conversation regarding his daughter's hours but no recollection of medical certificate of 31 May 2012;
·quite prepared to swear under oath despite lack of knowledge;
·questions over whether Connolly was attempting to answer questions in the proceedings.
· Cheryl Connolly
·evidence at times at odds with her husband's evidence.
[135]Of the remaining witnesses whilst the evidence of Fortescue, Ilka, Barry, Jessica Black, Amanda Black and Thelander were in some instances critical of Jahnke, their evidence was of no relevance to the matters at issue. The same applied to Gaudion, save for the mala fides of the Appellant in leading this evidence.
[136]The evidence of Bolding was for the purposes of exposing alleged inconsistencies from a telephone conversation on 3 December 2013 with Jahnke and certain video evidence. The conduct of the Appellant bespeaks a complete lack of evidence in relation to the issues for consideration by the Commission and was an unfair and irrelevant attack upon the worker.
[137]The final witness (Ogilvie) was significant in that her evidence was a desperate attempt by the Appellant to bolster an otherwise non-existent case.
[138]A similar submission was made in terms of the Regulator's evidentiary case which included commentary regarding such evidence:
· Wilson
·initially included on Appellant's witness list;
·Regulator was compelled to call the witness to put certain issues to rest; and
·none of his evidence went to any of the issues for consideration by the Commission.
· Dr Perkins
·unchallenged evidence around 31 May 2012 of Jahnke needing two days off work due to the relationship with her manager; and
·evidence of Dr Perkins was uncontroverted regarding injury and significant contributing factor.
· Jahnke
·account of events - clear leaving little doubt about what occurred;
·cross-examination did not disturb her evidence around events of 25 November 2012 which resulted in leaving work and attending a doctor for treatment; and
·cross-examination on a range of matters that did not address any of the essential elements necessary for the Appeal to succeed.
· Paul Jahnke
·evidence corroborated events of 25 November 2012;
·Brighton Bowls Club activities; and
·Connolly's undesirable conduct at Flinders.
· Morris
·corroborated matters of surveillance in the workplace and Collins' burn incident; and
·witnessing 25 November 2012 incident involving Connolly and Jahnke.
· Benjamin Black
·corroborated increase in product turnover and a heated exchange on 25 November 2012.
· Summer Collins
·evidence unchallenged - burns incident; and
·heated exchange of 25 November 2012.
· Dr Phang
·evidence unchallenged to the causal link of the injury sustained and the events which occurred on 25 November 2012.
· Dr Duke
·evidence of Jahnke presenting with "an acute stress related reaction" on an underlying background of a major depressive disorder;
·work-related events causative of psychiatric evidence; and
·any prior predisposition to psychiatric injury did not affect her condition.
[139]In conclusion it was submitted it was not necessary for a finding that there had been "bullying or harassment" in order to properly find that the Appellant had failed to discharge its onus in relation to the relevant elements for consideration.
[140]It cannot be challenged that:
· the worker sustained a psychiatric injury; and
· the employment at Flinders was causative of the injury.
[141]Therefore on the premise of no adduced evidence or serious challenge to the evidence of Jahnke, the following pertains:
· Jahnke was at the relevant time a worker pursuant to s 11 of the Act;
· she sustained an injury of a psychiatric or psychological nature; and
· the injury arose out of or in the course of her employment with employment being a significant contributing factor.
[142]The issue of reasonable management action can be left aside and with the Appellant having wholly failed to adduce relevant evidence, the Appeal must fail.
[143]Accordingly it was submitted the Appellant had failed to discharge its onus of proof and the Appeal should be dismissed with costs.
Appellant
[144]Substantial written submissions were received from the Appellant which, in the first instance, indicted there was no dispute that Jahnke for the purposes of the Act was a worker with the issue to be determined "whether the worker sustained an injury within the meaning of s 32 of the Act".
[145]The Regulator's submissions where issues of management action were not raised in this case presupposes that the worker's version of what occurred is accepted. If the Appellant's version of the 31 May 2012 and 25 November 2012 incidents were accepted it would be entirely open to the Commission to find that if the worker did suffer an injury, then it arose out of reasonable management action taken in a reasonable way in respect of her employment, or an expectation or perception of reasonable management action being taken against her.
[146]The Commission has to determine which version of events it accepts by determining who is telling the truth.
[147]A number of issues were raised concerning the credit of Jahnke which included:
· 1991 - convicted of a serious criminal offence arising from her employment with Thelander;
· voluntarily bankrupted herself to avoid repaying debt to Thelander;
· had a criminal history for dishonesty that occurred over an extended period of time involving a substantial sum of money;
· involved in a serious calculated course of criminal conduct for which she made no admissions prior to having been found out; and
· less than forthcoming in respect of previous mental health history which dated back to 1991.
Jahnke had been reluctant to accept she had not informed Dr Duke of her previous psychiatric injuries and her role in the Capers Catering at Brighton Bowls Club flies in the face of the evidence that included stock ordering invoices and reports of the Bowls Club that referenced her involvement in that venture.
[149]Other issues that impacted adversely on her credit were identified as:
· the evidence regarding the throwing of the masking tape at her by Connolly;
· her attendance and involvement in the R-Lee Fashions launch; and
· encouraged by Dr Duke to attend a fashion launch prior to going which was not supported by his clinical notes.
[150]In terms of other matters relied upon by the Regulator the issue of the worker's criminal history was suggested to be derogatory or defamatory. The witness evidence from Benjamin Black also went to some issue about the worker taking somebody for bullying. As for the issue of Jahnke being spied upon, taking holidays and setting up Capers Catering it was submitted that if an employer has concerns about the veracity of a worker's claim it might properly make such enquires and perhaps have somebody surveyed. The Commission was referred to ss 136 and 535 of the Act.
[151]On the matter of the worker being required to prepare a document to be used as a complaint against the former manager, it was noted the former manager was not called to give evidence and Connolly disavowed any issue about a warning. On the issue of this having caused stress to the worker, that was difficult to accept as she had attained the manager's position when the former manager had left.
[152]The question of the bonus was that there were never any net profits to activate payment and in fact Connolly had to support the business, at times, financially.
[153]Connolly had denied knowledge of other issues relied upon that included:
· throwing the masking tape at the worker;
· voting card incident;
· sauce container incident;
· having made the alleged comments regarding the issue of his daughter's hours of work;
· comments around the Collins' burns incident; and
· being aggressive to Jahnke over the cutlery issue.
The incident of 25 November 2012 was preceded by issues on 24 November 2012 whereby the worker suggested she had received a number of phone calls from Flinders but as her telephone was in her bag she did not hear the phone. She later called Flinders and when informed of issues around insufficient staff offered to come in, but her offer was declined on the basis things were under control. Her evidence was inconsistent with that of Benjamin Black whose evidence was he had been too busy to call the worker that evening.
The staff issue was said by Connolly to have led to an exchange on 25 November 2012 with Jahnke who was very volatile, yelling and carrying on as she always did and resulted in her leaving the premises with Morris and her husband, never returning to work. Connolly had made a settlement with the worker in respect of her outstanding entitlements.
The versions of what occurred in respect of the incident of 25 November 2012 were described as diametrically opposed. It was hard to imagine if the exchange on 25 November 2012 was as described by the worker her husband would have stood by in such a passive way.
[157]There was concern expressed around the reluctance of Morris to answer questions and the matters to which she did respond lacked detail and were vague with it being suggested there were issues over the veracity of her evidence.
There was no doubt there was some sort of discussion or argument on 25 November 2012 and that Connolly and Jahnke both raised their voices however on credit issues it would be difficult for the Commission to accept her version.
[159]The submission in response to the medical evidence related to:
· the medical certificate of 31 May 2012;
· Dr Phang's medical certificate; and
· Dr Duke in respect of pre-existing psychiatric illness suggesting a degree of vulnerability to not cope with stressful situations.
[160]The information relating to the worker's past psychiatric history, it was noted, would not have caused Dr Duke to change his diagnosis or the cause of the diagnosis.
[161]The Commission must determine whether in all the circumstances any injury suffered by the worker arose out of or in the course of employment and if the employment was a significant contributing factor. If the worker was not believed there is an entitlement to find as a matter of fact that the worker had not suffered a work-related injury in the sense that work was a significant contributing factor to the injury. Likewise if there is acceptance of the issues relative to the doctor's certificates of 31 May and 27 November 2012 but does not accept the worker's evidence about the circumstances giving rise to the injury, then based on Connolly's evidence it was open to determine any injury arose out of or was in the course of reasonable management action taken in respect of the workers' employment.
[162]The primary submission was the Commission would not believe the worker's version of what occurred over the period of her employment at Flinders and in those circumstances the Appeal should be allowed with costs.
Regulator in reply
[163]The submission in reply disputed the option put forward by the Appellant that it was open for the Commission to find any injury sustained by the worker arose out of reasonable management action taken in a reasonable way and/or an expectation of reasonable management action taken against the worker on the basis there was no factual basis identified by the Appellant that was capable of sustaining the application of s 32(5)(b) of the Act. It was the Appellant's case there was no management action taken against the worker.
[164]Other matters addressed included paragraphs 11, 69, 74 and 82 of the Appellant's submission.
[165]Concessions by the Appellant were identified as:
· a significant event occurred on 25 November 2012; and
· Dr Duke's medical evidence that the worker's past psychiatric history would not cause him to change his diagnosis.
[166]There was nothing in the Appellant's submissions to displace:
· Jahnke was at the relevant time a worker pursuant to the Act;
· Jahnke sustained an injury of a psychiatric or psychological nature;
· the injury sustained arose out of her employment with the Appellant and in particular the event which occurred on 25 November 2012; and
· the matters involved in the workplace were a significant contributing factor to the contraction of injury both from an objective and subjective point of view.
[167]There was no evidence or submissions which raised an exclusion under s 32(5) of the Act.
Conclusion
[168]There was no issue that Jahnke for the purposes of s 11 of the Act was a "worker" at all relevant times and as such was not a matter upon which a determination was required.
[169]The matters for determination are whether Jahnke:
· suffered a personal injury;
· did that injury (if suffered) arise out of or in the course of her employment; and
· was the employment a significant contributing factor to the injury.
[170]The Commission accepts the position advanced on behalf of the Regulator that the case pursued by the Appellant was not one that related to the question of reasonable management action taken in a reasonable way by the employer in connection with Jahnke's employment or her expectation or perception of reasonable management action taken against her.
[171]Therefore if it was to be found that Jahnke suffered a personal injury that arose out of or in the course of her employment and the employment was a significant contributing factor to the injury, the Appeal would fail on the basis of the causation not being excluded due to the enlivenment of s 32(5)(a) and/or (b) of the Act.
Personal Injury
An application was lodged for workers' compensation [Exhibit 1] by Jahnke (dated 28 November 2012) which identified 31 May 2012 as the date upon which the injury occurred however the worker's compensation medical certificate considered by WorkCover in their decision to accept the claim was from Dr Phang (dated 27 November 2012).
In evidence Jahnke told of an attendance at the Bracken Ridge Medical Centre on 31 May 2012 where she was issued with a medical certificate which certified her unfit to continue her usual occupation from 31 May 2012 to 1 June 2012 (inclusive) and of her presentation of the certificate to Cheryl Connolly who had at the time allegedly laughed at her. There was no evidence of any application for workers' compensation being lodged at or around the time of the issue of the medical certificate (dated 31 May 2012).
The 31 May 2012 medical certificate was not in the format of a workers' compensation medical certificate as approved under the Act and contained no information regarding the diagnosis or stated cause of the injury. Dr Jenkins the medical practitioner responsible for the issue of the certificate gave evidence of recording in his clinical notes that the patient was "visibly teary and distressed" and of issuing a referral to a clinical psychologist.
The finding open to the Commission regarding the 31 May 2012 medical certificate, based upon the medical evidence, was that Jahnke was distressed to the extent she was given two days absence from work to recuperate from her medical condition and the personal injury subject of that certification did not extend immediately beyond 1 June 2012.
The medical certificate issued by Dr Phang on 27 November 2012 was on the approved form and certified Jahnke was suffering from "workplace related stress" that had rendered her unable to work from 28 November 2012 until 18 December 2012. Dr Phang's clinical notes recorded the worker having informed him of the "need for time off work - like two to three weeks".
[177]Dr Duke, the treating psychiatrist, in a report to WorkCover (dated 14 January 2013) diagnosed Jahnke with "Acute Stress Reaction". On 18 January 2013 in correspondence to Jahnke's General Practitioner (Dr Wendy Price) advised he had extended the period of time for which she was unfit for work until 1 March 2013.
The Appellant in the prosecution of the Appeal did not adduce any evidence from medical specialists or practitioners that offered a view contrary to that of Dr Duke and Dr Phang that Jahnke had on or around 25 November 2012 suffered a diagnosable psychiatric/psychological injury.
[179]On that basis I conclude Jahnke did suffer a personal injury in accordance with s 32 of the Act.
Did her personal injury arise out of or in the course of employment?
There is little doubt on the evidence that on 25 November 2012 there was an incident at Flinders involving Connolly and Jahnke, a point conceded by the Appellant in submissions. The incident culminated on the Jahnke's and Morris leaving the premises and effectively ending their employment tenure with the Appellant on that day.
Jahnke attended Dr Phang on 27 November 2012 where in the course of the consultation informed him of "workplace harassment and bullying by principal" which she said had been happening for months. On the basis of the information provided by her, Dr Phang issued the workers' compensation medical certificate identifying the stated cause of injury as that alleged by Jahnke. Dr Phang who had not previously treated Jahnke "ticked the box" on the medical certificate form that indicated the injury was consistent with the workers' description of cause at the same time leaving blank the section which was for the purpose of mentioning matters relating to any pre-existing factors.
[182]Dr Duke in his report to WorkCover (dated 14 January 2013) in response to the question "Diagnosis of all work-related conditions" opined Jahnke currently had an "Acute Stress Reaction". As was the case with Dr Phang there was information conveyed to Dr Duke by the worker regarding activities in the workplace said to be causative of injury. Dr Duke responding to a question in regards to the work-related injury being an aggravation of a pre-existing condition stated "I do not believe that Ms Jahnke had a pre-existing mental health condition".
[183]On the basis of the medical evidence, acknowledging the detail of the workplace events said to be causative of the personal injury had been solely sourced from Jahnke, I conclude that her personal injury arose out of or in the course of her employment.
Was Kerry Jahnke's employment a significant contributing factor to her personal injury?
[184]Having found Jahnke suffered a personal injury that arose out of or in the course of her employment for that injury to be compensatable the Commission must be satisfied that her employment was a significant contributing factor to the injury.
[185]Unlike the previous two findings of the Commission the significant contributing factor component will be determined not simply upon the opinions of the medical practitioners but also from evidence of lay witnesses emanating from their participation in the relevant workplace. That evidence it must be said was of some controversy in that there are questions over issues of credit in respect of the two leading proponents in the proceedings. In terms of Connolly his evidence regarding the workplace events alleged by Jahnke on occasion simply denied such incidents occurred whereas in respect of Jahnke questions emerged in respect of her credit not only regarding her evidence in the proceedings but also of her character as a consequence of a conviction for theft in the workplace some twenty plus years previous. In addition the evidence of the other witnesses called by both parties in the proceedings tended to be in direct contrast on occasions to one another with regards to their recall of events and behaviour in the workplace of both Connolly and Jahnke.
The Commission was taken to a number of issues where the conduct and behaviour of Connolly was alleged to have been of a nature to have established in effect a pattern of bullying and harassment of employees at Flinders and in particular Jahnke who decompensated on or around 25 November 2012.
[187]Whilst all of the evidence in relation to the incidents has been considered it is the case in respect of certain of the alleged events that it is unlikely those events could be considered as having contributed in a significant way to Jahnke's injury and such that proposition has not been supported by evidence in the proceedings. Those incidents were:
· alleged written warning leading to the previous manager's departure;
· overfilling of sauce bottles;
· milk bottle put in rubbish without the lid;
· waffle invoice;
· issue of in-house cutlery for a takeaway meal; and
· bonus arrangement.
[188]The other events subject of consideration by the Commission were as follows.
Name badges
[189]Jahnke had given evidence of Connolly having yelled at her over the failure of staff to wear name badges describing her as useless and in the course of the exchange had thrown a roll of masking tape at her. Connolly denied there was an incident where he had criticised Jahnke about the failure of staff to wear name tags.
[190]Under cross-examination Jahnke in terms of throwing of the masking tape offered inconsistent evidence regarding being struck by the masking tape.
[191]There is some question around whether this incident occurred however the inconsistencies in Jahnke's evidence is against a finding that Connolly threw a roll of masking tape which struck her.
How to vote cards
[192]In February 2012 Connolly was alleged to have attended Flinders on the morning of the Queensland State election after handing out how to vote cards for the LNP and having given instructions that a member of staff be sacked by Jahnke for refusing to take an LNP how to vote card. In the course of giving the instruction he had yelled at her.
[193]Connolly denied the allegation that he had ordered an employee to be dismissed on the basis he was a Labor or Green voter.
[194]Jahnke according to her evidence, despite being bullied and harassed by the employer, in fact ignored the instruction and did not terminate the employee. There was no evidence of ramifications as a consequence of the failure to carry out the dismissal.
[195]Again there is some question over whether the incident as alleged occurred and there was certainly no evidence corroborating Jahnke's version.
Preparation room surveillance
[196]Jahnke, whilst working in the "prep" room with Morris was approached by Cheryl Connolly who informed her they had been watched on surveillance cameras talking and not working. Morris in her evidence supported the approach by Cheryl Connolly as evidenced by Jahnke.
[197]Jahnke went on to give evidence that following a comment by her to Cheryl Connolly that the use of surveillance cameras should not be happening, a short time later Connolly charged into the room and yelled at Morris and herself that "he'll damn well watch us whenever he wants to watch us work".
[198]Cheryl Connolly recalled they had words with Jahnke and Morris over "chit-chatting" and not working.
[199]Morris was unable to recall any involvement from Connolly in the matter and did not therefore corroborate the version given by Jahnke that Connolly had yelled at them on this occasion.
Summer Collins - burn incident
[200]In October 2012 Collins suffered a burn to her arm whereby Jahnke after advising Connolly by telephone of the accident took Collins to a medical centre at Strathpine for treatment. On her return to Flinders it was her evidence Connolly challenged her decision suggesting if she was a decent manager she would not have taken Collins for medical treatment as it would increase his workers' compensation premiums.
[201]Connolly in evidence denied any unreasonable behaviour around the burn incident involving Collins.
[202]In her evidence, Collins, a former employee of Flinders, corroborated Jahnke's version in terms of taking her to the doctor going on to provide details around an application for workers' compensation which was lodged and accepted. She was compensated for medical expenses but not for the hours of work lost.
[203]This incident lacks any grounds (that were the subject of corroborated evidence) likely to have significantly contributed to Jahnke's injury.
Customer complaint
[204]In October 2012 Jahnke gave evidence of an incident at Flinders where she had informed a female customer who was unhappy with the service that her money could be refunded. The matter was resolved at which time Jahnke apologised. The following day according to her evidence the Connolly's turned up unannounced to her residence where she was questioned by them with regards to the incident from the previous evening and told she was useless. Paul Jahnke's evidence supported the position of his wife claiming she was the subject of a "most aggressive" approach by Connolly.
[205]Connolly was unable to recall a visit to the Jahnke's residence however Cheryl Connolly recalled the visit and her husband asking Jahnke about a customer complaint.
[206]The evidence of Cheryl Connolly was at odds with her husband bringing into question his denial around this incident.
31 May 2012 - the Connolly's daughter's hours of work
[207]Jahnke's version was upon having raised with Connolly an issue involving his daughter working extra hours which in turn caused a double up of staff she was yelled at and told she was a useless manager causing her to leave the premises in a distressed state and requiring medical assistance. She attended Dr Perkins who issued a medical certificate rendering her unfit for duties for two days.
[208]Connolly denied the allegations and further denied any knowledge of Jahnke having presented the medical certificate.
What is known is that despite Jahnke being issued with a medical certificate on 31 May 2012 for what she alleged was a work-related injury, there was no claim for workers' compensation nor did she access sick leave.
Air-Conditioning controls
[210]Jahnke's evidence was that following someone having adjusted the controls she was instructed the next day by Connolly to contact all staff on shift the previous night to find out who was responsible and to then sack that employee. In the course of the exchange she was spoken to aggressively and told she was useless and an idiot.
[211]Connolly denied the incident giving evidence he did not given directions to Jahnke to terminate anyone's employment. Cheryl Connolly had no recall of the incident however she could remember he husband at some time placing tape over the air‑conditioning controls to stop people "fiddling" with them.
[212]As was the case with the how to vote card incident where Jahnke alleged she was instructed to terminate a staff member, there was no evidence before the proceedings that Jahnke complied with the direction to sack a staff member.
On consideration of the alleged workplace incidents so far there is, in my view, insufficient or reliable evidence that would collectively or singularly support a finding the incidents had been a significant contributing factor to the personal injury sustained by Jahnke on or around 25 November 2012. There was an absence of evidence to corroborate Jahnke's assertions of a pattern of abuse, bullying and harassment at the hands of Connolly whilst employed as a manager at Flinders up until 24 November 2012. There was clear evidence undisturbed in cross-examination from Ilka, Barry, Jessica and Amanda Black that they had never witnessed behaviour from Connolly as alleged by Jahnke. The evidence of Morris was she had on one occasion witnessed Connolly having admonished Jahnke over taking Collins to the doctor.
25 November 2012 - incident
[214]This particular incident would seem to be the most critical of all events relied upon by Jahnke as the causation of her personal injury for a number of reasons, none more so than the proximity of the incident in sustaining the injury and issuing by Dr Phang of the workers' compensation medical certificate.
[215]The background to the incident was that in October 2012 the Jahnke's sought to enter into an arrangement with the Brighton Bowls Club to provide a meals service on a limited basis. The Jahnke's evidence was that this was solely a venture operated by Paul Jahnke and refuted allegations regarding Jahnke's involvement in the business beyond the setting up phase. Evidence supportive of the Jahnke's position was given by Wilson who as Deputy-Chairman of the Brighton Bowls Club indicated the contract was awarded to Capers Catering, run solely by Paul Jahnke.
[216]There were a number of reports authored by Wilson as Deputy-Chairman that contained the following content which directly contradicted his evidence in the proceeding and as such cast extreme doubt upon the veracity of that evidence:
· Report 16 December 2012 to January 2013 - "Capers Catering is the name under which Kerry and Paul will be trading. They are still going through the process of registering the trading name, and will get back to me once it's finalised. I have emailed them what I need and they are aware that they will have to sign a contract when they provide the information.";
· Report 18 January 2013 to 15 February 2013 - "Kerry and Paul still haven't formally responded to my email requesting Trading Name ABN etc."; and
· Report 16 February 2013 to 15 March 2013 - "Following a meeting with Paul regarding kitchen issues, he mentioned that both Kerry and he are away a lot, and therefore unable to manage the staff properly. They will not be seeking a contract, but are happy to continue the current arrangement, until we find a replacement".
[217]Wilson, under cross-examination, described the content of his reports as it related to the Jahnke's as an "unfortunate choice of words". I see the content of the minutes as confirmation that both Jahnke's were directly involved in the setting up of the business in a way contrary to their evidence in the proceedings and the initial operation commenced whilst they were employed at Flinders.
On 24 November 2012 Jahnke worked the morning at Flinders and in determining the staff requirements for the day reduced staff numbers due to inclement weather. That evening the Jahnke's venture at the Brighton Bowls Club operated a smorgasbord with work most definitely performed by Paul Jahnke and Morris with a denial that Jahnke whilst present at the club undertook any work duties.
[219]It eventuated that Flinders had an extremely busy night which impacted negatively on those operating the business on the night due to insufficient staff having been rostered on duty.
[220]Jahnke gave evidence of having a number of missed calls on her telephone from Flinders and when they were discovered at around 8.30 pm she rang Flinders and spoke to Ilka who told her things had got busy but not to bother coming down as all was under control. Benjamin Black gave evidence of 24 November 2012 being so busy he did not have the time to contact Jahnke about coming into work which was in contradiction to Jahnke's evidence of having been contacted through the missed calls. Benjamin Black's evidence of being the person with the responsibility for making the call was unchallenged.
[221]The following morning it is not of dispute that Connolly was less than happy with staffing arrangements from the previous evening and took up the issue with Jahnke on her arrival at work.
[222]Connolly gave evidence of raising the issue with Jahnke who became "very volatile" and was "yelling and carrying on". Paul Jahnke was said to have joined in and at the conclusion of the exchange they left the premises never to return.
[223]Jahnke claims that Connolly had become "very aggressive" towards her about staffing issues and telling her she was useless. The exchange had been witnessed by Benjamin Black, Collins and Morris.
Benjamin Black recalled the exchange between the pair on 25 November 2012 which involved yelling and was in front of customers but could not remember the details other than Jahnke not being there the previous evening. When taken to the exchange in cross-examination, the evidence was that both Connolly and Jahnke were yelling.
Collins on 25 November 2012 heard yelling coming from the back of the shop with both parties said to be yelling.
[226]Morris was said to have observed the incident which she recalled Connolly yelling at Jahnke and raising his hands which led her to go to Paul Jahnke as she feared Jahnke was about to be hit. Under cross-examination she gave evidence of Connolly on another occasion being in her face and of thinking she was about to be hit, although she had no recall when the incident had occurred and in her evidence-in-chief had not raised the alleged incident.
[227]Paul Jahnke overheard the exchange between Connolly and his wife which he described as "quite a commotion" with Connolly being "very, very vocal and his wife responding". Morris had approached him believing his wife was about to be hit upon which he approached his wife who told him to "leave her alone". She appeared visibly upset. In cross-examination his evidence was he had no doubt in the heated argument with Connolly his wife had responded. He had not said anything about the rage towards his wife because he had seen it happen repeatedly throughout the previous two years. He did not witness Connolly about to strike his wife.
Jahnke in cross-examination denied she was aggressive towards Connolly on 25 November 2012 but acknowledged she "was firm" and "had to be firm".
[229]At the conclusion of the exchange the Jahnke's, along with Morris, left the building which as it turned out brought their employment to an end.
In consideration of the evidence there is ample proof to support that an exchange occurred between Connolly and Jahnke on 25 November 2012 and that it was heated with each of the parties contributing to the aggressive nature of the exchange. Connolly as the employer was within his rights to raise issue with Jahnke regarding the previous evening however on his evidence he was immediately confronted by a person acting in a "very volatile" manner with the exchange developing from there into a slanging match of sorts between the two. I am unable to find the behaviour exhibited by Connolly was any more or less aggressive than the behaviour of Jahnke. I certainly do not accept the version offered by Morris of the threat of a physical attack on Jahnke as being imminent, a position which I suggest was borne out by the response to the situation of Paul Jahnke who would be unlikely to stand by whilst his wife was the subject of a threatened assault.
[231]The question is whether the exchange between the two was a significant contributing factor to the injury or whether Jahnke suffered a psychiatric/psychological injury for which the causation was not work-related. Dr Duke in formulating his diagnosis that it was a work-related injury did so without being informed by Jahnke of her past mental health history. Information relating to mental health conditions in the 1990s, 2005 and 2007 were withheld by Jahnke in the course of her consultations with Dr Duke including significant period of hospitalisation. Dr Duke when advised of the history in the proceedings was not inclined to alter his diagnosis although he did give evidence to the effect:
"Certainly if - if somebody has a previous episode of depression, they're more likely to have further episodes of depression. But, in many ways, it depends upon the context in which those depressive episodes occur, whether they tend to appear for no apparent reason, or whether they tend to occur in response to specific stresses. The depression that occurs in response to specific stresses is less likely to occur endogenously, but a depressive episode that occurs out of the blue, as it were, does predispose somebody to experiencing further depressive episodes arising out of the blue." [Transcript p. 5-31]
[232]Dr Duke in his report to WorkCover (dated 14 January 2013) had stated:
"Ms Jahnke has a history of a number of medical conditions. In particular she has suffered from hypertension, obesity, a prolonged QT interval, hyperlipidemia, osteoarthritis, reflux, polyarthralgia and diabetes. She is under the care of a General Practitioner for these conditions, the majority of which have improved following partial gastrectomy in May 2012."
I have concluded there is insufficient evidence before the proceedings to find on the balance of probabilities that the incident of 25 November 2012 involving Connolly and Jahnke was a significant contributing factor to the causation of her psychiatric/psychological injury.
[234]Having found that the injury was in effect not work-related, it is not necessarily incumbent upon the Commission to offer a view on the causation of the injury and to do so would be in this case speculative however it is of note Dr Duke in evidence offered the opinion that a person who had previously suffered an episode of depression was likely to have further episodes of depression which could tend to appear for no apparent reason or in response to specific pressures.
Post 25 November 2012
[235]There was material put before the proceedings relating to the behaviour and conduct of both the Connolly's and Jahnke which I assume was more for the purposes of providing insight into the character of those involved, more particularly Jahnke. The surveillance undertaken of her at the fashion event in Babinda offered nothing in terms of the employment being a significant contributing factor to her injury but did expose her evidence around having discussed her attendance at the show with Dr Duke prior to going as being untruthful. A viewing of the footage appeared to offer a different perspective of her participation on that evening that she was prepared to agree to in cross-examination.
Witness credibility
[236]I have, in reaching my conclusions, preferred the evidence of Connolly to that of Jahnke who I found to have not been a witness of credit although that is not to say Connolly was necessarily an outstanding witness. There were issues around certain of his denials however it was safer to accept in all the circumstances the veracity of his evidence as opposed to Jahnke where the evidence conflicted.
Findings
[237]Upon the consideration of the evidence, material and submissions before the proceedings, I made the following findings:
· Jahnke at all relevant times was for the purposes of s 11 of the Act a "worker";
· Jahnke sustained a personal injury in the form of a psychiatric/psychological injury pursuant to s 32 of the Act;
· the personal injury sustained by Jahnke arose out of or in the course of her employment; and
· the Appellant established in accordance with the requisite standard of proof that Jahnke's employment was not a significant contributing factor to the personal injury.
The Appeal is upheld and the decision of Simon Blackwood (Workers' Compensation Regulator) of 9 May 2013 is set aside. The claim is not one for acceptance.
[239]The Regulator is to pay the Appellant's costs of and incidental to this Appeal or, failing agreement, to be the subject of a further application to the Commission.
[240] I order accordingly.
0
0
0