QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gilmour v Workers' Compensation Regulator [2019] QIRC 022 |
PARTIES: | Mark Paul Gilmour v Workers' Compensation Regulator |
CASE NO: | WC/2017/21 |
PROCEEDING: | Appeal |
DELIVERED ON: | January 21 2019 |
HEARING DATE: | 4, 5, 6 June 2018 |
MEMBER: HEARD AT: | O'Connor VP Townsville |
ORDER: | 1. The appeal is allowed. 2. The decision of the Regulator dated 20 January 2017 is set aside. 3. The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of an application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL – Psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 Allwood v Workers' Compensation Regulator [2017] QIRC 88 Attorney General’s Department v K (2010) 8 DDCR 120 R 52 Byrnes v Workers' Compensation Regulator [2018] ICQ 004 Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100 Davis v Blackwood (Workers' Compensation Regulator) [2014] ICQ 9 JBS Australia Pty Ltd v Q-Comp [2013] ICQ 13 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Read v Workers' Compensation Regulator [2017] QIRC 72 |
| APPEARANCES: | Mr J Greggery QC instructed by Organic Legal for the appellant Mr S Gray directly instructed by the respondent |
Reasons for Decision
Mark Paul Gilmour appeals a decision of the Workers' Compensation Regulator dated 20 January 2017 that rejected his application for compensation in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003. The appellant claims that he has suffered a psychiatric or psychological injury whilst employed as a first aid trainer at St Johns Ambulance (Queensland) based in Townsville.
The appellant's claim relates to a period of time from approximately 4 January 2016 to 28 June 2016. The appellant alleges that during this time he was overworked, under resourced and inadequately supported. An additional component to his claim relates to an accusation of inappropriate workplace conduct which occurred when he attended a training course in Brisbane on 28 June 2018. However, the appellant submits that by the time of the accusation the appellant had already suffered an injury.[1]
[1] Submissions of the appellant, para 46.
Legislative framework
Section 32 of the Act defines the meaning of an “injury” and, so far as it is relevant, is in the following terms:
32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if—
…
(b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
…
(5)Despite subsection (1)…, 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…
Continue reading Gilmour v Workers' Compensation Regulator
Sign in free to access the full text
- AGLC
- Gilmour v Workers' Compensation Regulator [2019] QIRC 22
- Case
- [2019] QIRC 22
- Decision Date
CaseChat Overview and Summary
In addressing the legal issue, the court referenced previous decisions in Allwood v Workers' Compensation Regulator and Read v Workers' Compensation Regulator, where the concept of "management action" was explored in detail. The court emphasised that "management action" should not be interpreted broadly to include every action or statement by a manager within the workplace. Instead, it pertains specifically to actions taken while managing the worker's employment. This interpretation was supported by the reasoning in WorkCover Corp (SA) v Summers, which highlighted the distinction between administrative action and operational action related to employment. The court also considered Commonwealth Bank of Australia v Reeve, where the Federal Court discussed the significance of the term "administrative" in distinguishing certain types of employer actions.
After thorough consideration, the QIRC found that the Regulator's decision to exclude Gilmour's injury under section 32(5) was flawed due to an incorrect interpretation of "management action." The court determined that the injury was not excluded from compensation as it did not result from a management action in the strict sense defined in previous cases. Consequently, the appeal was allowed, the Regulator's decision was set aside, and the respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The appeal is allowed.
2. The decision of the Regulator dated 20 January 2017 is set aside.
3. The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of an application to the Commission.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In Allwood v Workers' Compensation Regulator[69] and Read v Workers' Compensation Regulator[70] I had cause to examine the meaning of “management action” within the context of the Act. In Allwood, I wrote the following:[69] [2017] QIRC 88.[70] [2017] QIRC 72. The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment. This statement is informed by the reasoning of Doyle CJ, with whom Prior and Williams JJ agreed in WorkCover Corp (SA) v Summers.[71][71] WorkCover Corp (SA) v Summers (1995) 65 SASR 243. In Summers, their Honours were called upon to construe the words "reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment" in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA). I note the similarities of that provision to the one under consideration in this matter. In Summers, Doyle CJ wrote: "The appellant argued that "administrative action" referred to "every instruction given by the employer or action taken by the employer which relates to the performance of the worker’s duties, whether directly or indirectly". That is how it was put in the appellant's outline. In his submissions counsel for the appellant said that administrative action embraced every instruction or action by the employer, indirectly or directly …. I am unable to accept this submission.If it is correct, it means that it becomes necessary to identify all instructions and directions given by the employer which did contribute or might have contributed to the stress, and then to examine the reasonableness of each one of them. That would be a daunting task, and I would hesitate to conclude that Parliament intended that it be performed. …if the stress resulted from instructions or actions of the employer (and presumably an implied instruction would be as good as an express instruction), then the claim would fail unless the instruction or action was unreasonable. Commonsense suggests that many, and probably most aspects of a worker’s work could be related back to instructions given by an employer or action taken by an employer. It is clear that Parliament intended to restrict stress claims, but it is another matter whether it intended to go as far as this….Moreover, the words chosen by Parliament — "administrative action" do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties. In my opinion the appellant’s submission fails to give any effect to the adjective "administrative"."[72][72] Ibid 247. Summers was considered by the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve.[73] In that matter their Honours examined, amongst other things, s5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Gray J, in dismissing the appeal, wrote the following: "The use of the word "administrative" in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word "administrative" must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not "administrative" could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as "administrative" action, but as operational action with respect to the employee’s employment."[74]Rares and Tracey JJ, also dismissing the appeal, stated that:"It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action" in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action"."[75]In discussing the definition of "administrative" their honours wrote:"The ordinary and natural meaning of “administrative” concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. "Administrative" has the following relevant dictionary meanings:• relating to administration (“administration” being defined as “the management or direction of any office or employment”) (The Macquarie Dictionary online); • pertaining to, or dealing with, the conduct or management of affairs (The Oxford English Dictionary online);[76][73] Commonwealth Bank v Reeve (2012) 199 FCR 463.[74] Ibid 473-4 [31]. [75] Ibid 486 [74]. [76] Ibid 548 [52].