French v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	French v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 095
PARTIES:	John Wayne French (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2011/110
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	21 May 2015
HEARING DATES:	24-28 February 2014, 29 and 30 April 2014 28 May 2014 (submissions of Respondent) 12 June 2014 (submissions of Appellant) 20 June 2014 (submissions of Respondent in reply)
MEMBER:	Industrial Commissioner Neate
ORDERS:	1. The Appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychological injury arising out of or in the course of employment - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - Appellant bears onus to establish that the Regulator's decision was wrongly made - Appellant to establish that the elements of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) are not satisfied
CASES:	Workers' Compensation and Rehabilitation Act 2003 ss 11, 32 Avis v WorkCover Queensland (2000) 165 QGIG 788 Blackwood v Adams [2015] ICQ 001 Bowers v WorkCover Queensland (2002) 170 QGIG 1 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Davis v Blackwood [2014] ICQ 009 Delaney v Q-COMP (2005) 178 QGIG 197 Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500 Gregory Versace v Ronald Braun (2005) 178 QGIG 315 Labaj v WorkCover Queensland (2003) 174 QGIG 370 Lackey v WorkCover Queensland (2000) 165 QGIG 22 Mason v WorkCover Queensland (2002) 170 QGIG 376 Mayo v Q-COMP (2004) 177 QGIG 667 Prizeman v Q-COMP (2005) 180 QGIG 481 Q-COMP v Foote (2008) 189 QGIG 539 Q-COMP v Glen Rowe (2009) 191 QGIG 67 Q-COMP v Green (2008) 189 QGIG 747 Q-COMP v Hetherington (2004) 176 QGIG 493 Q-COMP v Hohn (2008) 187 QGIG 139 Re Yu and Comcare [2010] AATA 960 Sheridan v Q-COMP (2009) 191 QGIG 13 State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 Svenson v Q-COMP (2006) 181 QGIG 629 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 WorkCover Queensland v Heit (2000) 164 QGIG 121 WorkCover Queensland v Kehl (2002) 170 QGIG 93
APPEARANCES:	Mr P. O'Neill, counsel for the Appellant, instructed by Sciacca's Lawyers Mr R. Clutterbuck, counsel for the Respondent, directly instructed by the Workers' Compensation Regulator

Decision

John Wayne French ("the Appellant") applied in August 2010 to WorkCover Queensland for compensation in relation to an injury described as psychological stress which he alleges occurred as a result of workplace bullying. On 5 November 2010, WorkCover decided to not accept the application on the basis of the operation of s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QIRC 95
Decision Date: 21 May 2015

CaseChat Overview and Summary

The appeal in this case was brought by the Appellant, who sought to challenge a decision made by the Workers' Compensation Regulator. The Appellant claimed that he suffered a psychological injury that arose out of or in the course of his employment, which led to a period of sick leave. The Regulator, however, found that the Appellant's claim did not meet the criteria for workers' compensation, as it was not established that the injury arose out of or in the course of his employment, and that the recruitment process was not unfair or unreasonable.

The key legal issues that the court had to determine were whether the Appellant's psychological injury arose out of or in the course of his employment and if the recruitment process was fair and reasonable. The Appellant bore the onus to establish that the Regulator's decision was wrongly made, and that the elements of section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) were not satisfied.

After considering the Appellant's submissions and the evidence presented, the court found that the Appellant had not established that the recruitment process was unfair or unreasonable. The evidence suggested that the Appellant and all the other candidates had the relevant minimum level of technical capability for the position and that the successful candidates were selected based on relevant criteria. Furthermore, the court was not convinced that there was any interference in the selection process by Mr Ney or Mr Fordyce. While the Appellant felt a sense of disquiet about not securing the position, this did not necessarily mean that the process was fundamentally flawed. The court also noted that the Appellant had been on sick leave due to work-related stress, but this did not automatically mean that the injury arose out of or in the course of his employment.

The court dismissed the appeal and confirmed the decision of the Regulator. The Appellant was ordered to pay the Respondent's costs of and incidental to the appeal, to be agreed upon or, failing agreement, to be the subject of a further application to the Commission.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The decision of the Regulator is confirmed.

3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion: Having considered the Appellant's detailed submissions in light of the totality of the evidence, I am not satisfied that the recruitment process was unfair or unreasonable. It is clear that the Appellant and all the other candidates had the relevant minimum level of technical capability for the position and the successful candidates were selected by reference to that and other criteria relevant to the CRO role. The evidence does not suggest interference by Mr Ney or Mr Fordyce in the selection process. Just because the Appellant felt an understandable sense of disquiet about his failure to secure a position does not mean that the process was fundamentally flawed.Appellant on sick leave in March 2010 Shortly after the interview with Mr Austin, the Appellant saw a doctor at the work site and commenced a period of sick leave related to stress. The period of leave was about three to four weeks. The Appellant also made use of Rio Tinto's Employee Assistance Program and was referred to a psychologist, Tania Gorton because he was having trouble dealing with issues and felt that he was at fault for everything. He saw Ms Gorton "frequently" and over time became "a lot better" and "more productive." Mr Ney recalled a discussion with the Appellant who expressed concerns about missing out on the CRO position, and that soon afterwards the Appellant was on "stress leave" and was seeing a company psychologist. Indeed, Mr Ney had encouraged the Appellant to go to the medical centre. He contacted the Appellant by phone on 15 March 2010, during the period of stress leave, inquiring about his well-being. Although the Respondent submits that there is no medical evidence attendant to this particular incident, and it is not known what caused the Applicant to leave work at that time, I am satisfied that the Appellant was on sick leave in relation to work related stress. As noted earlier, Dr Chalk gave evidence that it was hard to know from the material available to him how well the Appellant was when he returned to work after that leave. Dr Chalk expressed the view that, as the Appellant had been required to take sick leave because of stress in March and he had consulted Ms Gorton, he was probably in a more vulnerable state to decompensate later in the year. The Appellant initiated a Fair Treatment Review by lodging a Fair Treatment System Issue Statement dated 15 March 2010 with Rio Tinto (Exhibit 11). Thirty pages of documents were attached to it. The following is a summary of the issues raised (many of them in the form of questions) and the preferred outcomes identified by the Appellant. The issues were, in essence:(a) why he had not advanced within the company since 17 September 2007 even though he filled a Team Leader relief position and Control Room relief position;(b) why he had been disadvantaged with role level classification, internal advancements, internal positions, internal promotions and role band changes Stratum to ITMS;(c) why he had not had fair and equal opportunity with positions (e.g. no advertising of and for roles) and personal advancement;(d) why, after three years with Rio Tinto, he was told "I don't listen to question for a reason not to obtain a CRO position recently since I asked question about unfair treatment is happening in work group;"(e) he had no training for 12 months (or his courses were cancelled which would have enabled his skills and qualifications to progress internally);(f) why he had been disadvantaged with RD and Band change;(g) why he was subjected to less favourable treatment in the workplace just after using the Speak Out system;(h) why, having been trained in Rio Tinto systems, policies and procedures, and having been relieving in Team Leader and CRO positions, he did not meet the qualifications to fill a CRO position after two years of interviews (and having been told recently he was not suitable because he doesn't listen);(i) his role description had changed four times with no communication of the changes and why they were made.

Ratio Decidendi

Legal Principle Established

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