Hayter v HWE Mining Pty Ltd - [2017] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HAYTER -v- HWE MINING PTY LTD [2017] WADC 26

CORAM: GOETZE DCJ

HEARD: 11 NOVEMBER 2016

DELIVERED : 24 FEBRUARY 2017

FILE NO/S: APP 20 of 2016

BETWEEN: STEPHEN GEORGE HAYTER
Appellant
AND
HWE MINING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR POWLES
File No  :A 22617 of 2015

Catchwords:

Appeal - Workers' compensation - Stress injury - Whether work caused - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr B L Nugawela & Mr K H M Wong
Respondent: Mr D R Clyne

Solicitors:

Appellant: Friedman Lurie Singh & D'Angelo
Respondent: Mills Oakley

Case(s) referred to in judgment(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bobic v City of Armadale [2013] WADC 126
Catholic Education Office of WA v Granitto [2012] WASCA 266
Department of Education v Azmitia [2014] WADC 85
Devereaux‑Warnes v Hall [2006] WASCA 268
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Martin v Minister for Health [2016] WADC 15
Mokta v Metro Meat International Ltd [2005] WASCA 143
Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361
Waterford v Commonwealth [1987] 163 CLR 54

GOETZE DCJ:

Introduction

The appellant, Mr Hayter, claims to have suffered depression from stress in his work place. The respondent employer, HWE, did not accept the claim and refused to pay him workers' compensation.
After arbitration in the Workers' Compensation Arbitration Service, Mr Hayter's application for workers' compensation was dismissed. The arbitrator was not satisfied that Mr Hayter's depression was work caused.
Mr Hayter now appeals the arbitrator's decision.

Factual background

In November 2013, Mr Hayter commenced work as a machine operator for HWE in the Pilbara. This was fly-in, fly‑out work comprising 12.5 hour shifts, on swings of 14 days on and seven days off.
In March 2014, Mr Hayter was promoted to the position of leading hand/supervisor. However, he subsequently reverted to his previous role as a machine operator. Mr Hayter said this reversion occurred on 18 July 2014. HWE disputed that claim.
After the change back to machine operator, Mr Hayter was a hotseat operator and on light pick up duties. This meant that he may not always have been given a machine to operate on a full‑time basis. Instead, he may have been required to wait on standby in the crib room until required to hotseat ie, replace another machine operator.
Mr Hayter claimed that from July 2014, he would work on some machines but, it was not always all shift long or every day and that, by September, he was sitting more and more in the crib room and would only work a machine for a whole shift every three days or so. This continued into October 2014. This caused him to suffer stress resulting in depression.
On each of 29 September 2014 and 18 October 2014, Mr Hayter returned to Perth before the end of his swing by reason of depression.
Mr Hayter has not returned to the mine since departing therefrom on 18 October 2014.
On 21 November 2014, Mr Hayter obtained his first medical certificate for workers' compensation purposes. This certificate specified 'Depression'. Subsequently, two psychiatrists diagnosed a recognisable psychiatric condition, which is capable of being an injury within the meaning of s 5(1)(c) the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

The legislative requirement to pay workers' compensation

Pursuant to s 18 of the Act, an employer is liable to pay compensation to a worker who suffers injury, subject to the Act.
The definition of 'injury', by s 5(1), includes:
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
…
Subsection (4) then provides:
(4)For the purposes of the definition of injury, the matters are as follows ‑
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of –
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
Relevantly, subsection (5) further provides that:
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account ‑
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.

Stress claims

A stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts. It is not necessary for a worker to prove that his or her subjective perception of proven facts was reasonable ‑ Department of Education v Azmitia [2014] WADC 85 [16].

The position of the parties at the arbitration

Mr Hayter's application for arbitration claimed he suffered depression from sitting in the crib room for extended periods of time without work during September and October 2014. This depression was diagnosed on 21 November 2014 but, its existence was said to have pre‑dated that diagnosis. It must be remembered, that, this arbitration did not just concern September and October. It was also concerned with Mr Hayter's alleged time in the crib room on standby from 18 July 2014 and which time in the crib room, he said, increased incrementally into September and October 2014.
Mr Hayter's application also stated that the issues in dispute were:
1.Whether psychological injury caused by demotion.
2.Whether psychological injury caused by domestic issues.
HWE's response was that it:
1.contended Mr Hayter refused to work on another crew at a particular location in the mine which had more duties available and would have prevented him from being assigned to the crib room;
2.a) disputed the claim that Mr Hayter was left in the crib room without work and maintained he was provided with appropriate duties during the course of his shifts; and
b)disputed that being assigned to the crib room was causative of stress and contended that personal factors, unrelated to employment, were the cause of Mr Hayter's illness; and
3.pleaded Mr Hayter's stress was not caused, or contributed to significantly, by his employment, or if it was, then the stress was wholly or predominantly the result of a matter within s 5(4) of the Act namely, the change in Mr Hayter's role and his subsequent disappointment at the loss of further opportunities to undertake supervisory roles.
This would then seem to fit within s 5(4)(a), being either demotion, transfer or redeployment, or s 5(4)(b), being not granted a benefit in relation to his employment ie, the loss of opportunity for promotion.
It was not suggested by Mr Hayter's counsel that either his demotion, transfer or redeployment, or that any loss of a chance of further promotion, were unreasonable and harsh on the part of HWE. On appeal, demotion was not an issue.

The issues for determination by the arbitrator

On appeal, the four issues for determination identified by the arbitrator were not challenged. Those issues were:
1.whether Mr Hayter spent long periods in the crib room waiting for the allocation of work;
2.whether the employment was a contributing factor and contributed to a significant degree to the contraction of a disease;
3.whether Mr Hayter was precluded from an entitlement to compensation by virtue of the exclusions contained within s 5(4) of the Act; and
4.whether any incapacity for work and need for medical treatment results from an injury.
Given the pleadings, and in particular HWE's defence at [18.2] above, the issues identified at [19.1 and .2] above meant that Mr Hayter's evidence concerning periods in the crib room and personal factors would necessarily be scrutinized and that findings would have to be made as to his credibility, accuracy and reliability as a witness. Such findings would necessarily be central to the arbitrator's ultimate decision.

The arbitrator's decision

Section 213(4) of the Act provides as follows:
(4)The reasons for an arbitrator’s decision ‑
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
Notwithstanding Mr Hayter's criticism of the arbitrator's written reasons, she identified facts and gave detailed reasons for not being satisfied that his employment was a factor contributing to a significant degree to his psychiatric condition. Essentially, she was not persuaded by his evidence. His application was therefore rejected.
Some of the findings made by the arbitrator were as follows:
1.Mr Hayter flew into site on 4 August 2014 and flew out on the following day by reason of his low mood.
In passing, the arbitrator did not make any finding as to why Mr Hayter departed the mine on 18 August 2014, one week before the end of his then swing.
2.Mr Hayter himself chose to revert to the role of machine operator.
3.The change in role did not occur until the swing starting Thursday, 28 August 2014, for which Mr Hayter flew into site on Friday, 29 August, commencing work on Saturday, 30 August.
4.During September and October 2014, Mr Hayter did spend periods of time on standby in the crib room waiting for work to be allocated to him. However, the arbitrator was unable to determine whether these were long periods. There was evidence that Mr Hayter undertook hotseating and other tasks, rather than just being on standby, such that he was not idle for extended periods of each shift.
5.Following the end of his swing on 18 September 2014 and his return to Perth, Mr Hayter consulted Dr Suresh Panikker of High Wycombe General Practice on 19 September and was certified unfit for work for four days. The certificate did not provide any information as to the nature of Mr Hayter's illness at that time and did not provide any support for Mr Hayter's claim.
6.Mr Hayter returned to the minesite on 25 September 2014. On 28 September, he was highly distressed at work. He flew home the next day.
7.Upon returning home, Mr Hayter recovered from his distress. His wife gave evidence that when he was due to go back to site on 9 October, he 'seemed fine'. Her evidence did not assist any inference of depression at that time.
8.On 17 October 2014, Mr Hayter manifested extreme distress at work. He flew home on the following day.
9.The reason given by Mr Hayter to his work supervisors requiring him to leave the minesite on each of 29 September and 17 October was matrimonial difficulties.
10.On 28 September and 17 October, Mr Hayter did not advise his supervisors that he was distressed by reason of excessive time spent in the crib room. He did not give this information to anyone whenever he left the minesite.
11.Mr Hayter was due to return to site for his next swing on 30 October 2014. He intended to do so but, by reason of a chest infection, he did not. There was no evidence that he then had a psychiatric illness.
12.Mr Hayter has not since returned to the mine.
13.On 21 November 2014, Mr Hayter consulted Dr G Caddy of Mead Medical Group and was provided a first medical certificate based on depression.
14.Dr Caddy's first medical certificate provided limited support for the claim that Mr Hayter's idle time spent in the crib room significantly contributed to his depressive illness. That certificate recorded an incorrect history that Mr Hayter was 'put out' of his supervisory role and into the crib room for 12 hours per day. He was neither put out of his supervisory role, nor did he spend 12 hours per day in the crib room.
15.On 28 April 2015, Mr Hayter consulted Dr D Shub, clinical psychiatrist, who diagnosed a psychiatric illness. However, Dr Shub provided little support for causation of Mr Hayter's illness. Dr Shub merely stated that Mr Hayter
asserted that he was overlooked and neglected with respect to various work duties, which he claimed resulted in escalating levels of psychological distress.
16.Dr Shub's opinion focused on contradicting HWE's assertions as to the cause of Mr Hayter's illness, rather than providing a positive statement in respect of causation.
17.Dr Shub observed that Mr Hayter disputed that his condition arose by reason of matrimonial conflict. As to Mr Hayter's work contributing to his condition, Dr Shub stated:
Whilst I do not doubt that he has developed significant psychopathology, it is not possible to comment on specific causal factors without having objective information from his workplace.
18.Mr Hayter told Dr Shub that his distress dated from approximately October 2014.
19.Mr Hayter told Dr L Terace, consultant psychiatrist on behalf of HWE, that, his depression occurred from the end of October 2014. However, Mr Hayter was prepared to return to work on 30 October 2014 and would have done so, but for his chest infection and after recovering therefrom, he would have attended work had a flight been booked for him. Dr Terace diagnosed a similar psychiatric illness to that diagnosed by Dr Shub.
20.It was highly relevant to the arbitrator that Mr Hayter was intending to fly back to work on 30 October and would have done so, but for his chest infection. Apart from Mr Hayter's evidence, there was no other evidence of any psychiatric illness at that time. It was particularly relevant that there had been no complaint of distress from spending time in the crib room to any of Mr Hayter's supervisors or a medical practitioner. Rather, complaints to supervisors concerned matrimonial issues.
21.When cross‑examined at arbitration on the statements of his two supervisors that he told each of them he was distressed by reason of marital difficulties, Mr Hayter claimed he told them that so he could immediately fly home. He said he had told a white lie. This made it difficult for the arbitrator to discern the truth because she queried whether his other evidence might also be so categorised.
22.It was difficult to accept Mr Hayter's evidence that he told his work supervisors of his matrimonial difficulties merely as an excuse to be sent home early.
23.Mr and Mrs Hayter disputed that there were problems in their marriage.
24.The evidence of Mr Hayter's supervisors was to be accepted in preference to that of Mr and Mrs Hayter.
25.By reason of inconsistencies in Mr Hayter's evidence, and in the absence of contemporaneous medical consultation and report, the arbitrator was not satisfied that time spent in the crib room contributed to a not insignificant or material degree to Mr Hayter contracting his psychiatric condition. Rather, the only relevant potential contributing factor to such condition was stress associated with his marital difficulties. However, by 21 November 2014 when he was diagnosed with an illness, a factor which may have then contributed to his illness was his feeling that his employer did not want him back.

The legislative provisions as to an appeal

The right to appeal from the arbitrator is, relevantly, set out in s 247 of the Act, as follows:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless ‑
(a)in the case of an appeal in which an amount of compensation is at issue ‑
(i)a question of law is involved and the amount at issue in the appeal is both ‑
(I)at least $5000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
…
(7)On hearing an appeal made under this section, the District Court may ‑
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
Mr Hayter first requires a grant of leave to bring his appeal. He can only be granted such leave to appeal on a question of law.
In Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Buss JA said: [53] – [57]
53An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 ‑ 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made 'on a question of law'. That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act.
…
55A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 [146].
56A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742.
57A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigration and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
'There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors.'

Paradis was followed in Catholic Education Office of WA v Granitto [2012] WASCA 266 in which Murphy JA, with whom Pullin and Newnes JJA agreed, said:
53An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17. (An appeal of this kind is accordingly broader than an appeal 'on a question of law' – …
54If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the commissioner to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]. That was a case involving s 247(3) but the point plainly applies to s 247(2) which uses the word 'unless'. It is unnecessary for present purposes to consider whether there are any differences in relation to the operation of the grant of leave contemplated under s 247(2) and s 247(3).
55Further, in Atanasoska Buss JA (Wheeler and Pullin JJA agreeing) said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
Later in Atanasoska [32], the court referred with approval to the observations of Pullin JA in BHP Billiton Iron Ore Pty Ltd v Brady [14]:
In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either:
(a)grant leave and uphold or dismiss the appeal, or
(b)refuse leave to appeal.
Pullin JA also said in that case [15] that the 'commissioner was not bound to accept that questions of law were involved merely because the appellant asserted there were such questions'.
56It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that the commissioner, within the constraints marked out by the nature of the appellate process, must conduct a 'real review': Pacific Industrial Co v Jakovljevic [20], [24].
57Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator: Pacific Industrial v Jakovljevic [20], [26].

The grounds of appeal

The grounds of appeal are as follows:

Ground 1

The learned Arbitrator erred in law by critically misapprehending the evidence. She had assumed there was a conflict in the evidence (D144) requiring her to make credibility findings against the Applicant and Mrs Hayter, when there was no evidence of probative value in relation to any conflict.
Particulars
The evidence of Mr Hayter was that being ill and depressed, as an excuse to return home, he told Mr Browne and Mr Milich that his wife was leaving him and taking the kids. The fact that the excuse was believed by Mr Brown and Mr Milich, and they formed an opinion that such was the cause of his early exit from site, is not probative evidence that Mr Hayter's wife was leaving him and taking the kids. Neither is that evidence of the supposed conflict in evidence. It was in fact Mr Brown's evidence that Mr Hayter's wife had sent a text message concerned about his well‑being in August 2014. She had continued to be his advocate whilst he was depressed and decompensated, and the Arbitrator had found at D145 that Mrs Hayter was a supportive wife.

Ground 2

The learned Arbitrator erred in law by omitting to make necessary findings of fact on the evidence before her, overlooked critical aspects of the evidence, and provided inadequate reasons for concluding at D147 that marital problems were the cause of his distressed state requiring emergency evacuation from the FIFO site in September and October 2016.
Particulars
1)Failed to evaluate and accept or reject evidence:
a)from Mrs Hayter that she did not threaten to leave Mr Hayter and take the kids (cf evidence of what Mr Hayter said by way of excuse to leave site);
b)from Mrs Hayter that she cared for her husband and her undisputed role as advocate for him during his depression;
c)from Mrs Hayter that she spoke to supervisor Carl Coulson [sic] to organise a flight back in August 2014 when the Applicant felt low;
d)from both psychiatrists that relate the injuries to the way Mr Hayter felt; that is, being overlooked, ignored, excluded, and marginalised;

2)What were the marital problems and why emergency evacuation was required for him to return home.
3)Why Mrs Hayter was by her husband's side advocating for him, demanding answers on how her husband came to be decompensated as he was.

Appeal grounds 1 and 2 can be conveniently dealt with together. They both attempt to overcome the arbitrator's finding of fact that Mr Hayter suffered marital problems in September and October 2014, when he made early departures from the minesite.
Appeal ground 1 alleges an error of law in that it complains the arbitrator misapprehended that she was required to resolve an 'assumed' conflict in evidence between Mr and Mrs Hayter on the one hand and Mr Hayter's supervisors on the other hand. This conflict related to the marital problems. Thus, it seems that this appeal ground is predicated on the following:
1.Mr and Mrs Hayter both gave evidence that there were no matrimonial difficulties at any time. Only they could give this direct evidence; and
2.The supervisors could only give hearsay evidence as to conflict in the marriage of Mr and Mrs Hayter. Their evidence could only ever be limited to the fact that Mr Hayter complained to them of matrimonial difficulties.
In this way, it is argued that there was no conflict at all as to evidence of matrimonial difficulties and that therefore, there was no need for the arbitrator to make a credibility finding against Mr and Mrs Hayter on the issue of marital conflict.
Appeal ground 1 is framed in terms of a question of law however, in reality, this ground seeks to overcome and challenge the arbitrator's finding of fact that Mr and Mrs Hayter did experience matrimonial difficulties.
Appeal ground 2 first challenges the arbitrator's finding of fact as to marital problems by reference to the evidence of Mrs Hayter and the two psychiatrists. It claims an error in law by the arbitrator omitting to make necessary findings of fact and overlooking critical aspects of the evidence of Mrs Hayter and the psychiatrists. Implicitly, if these matters were not omitted and overlooked then, the arbitrator would not have preferred the evidence of the supervisors as to marital problems.
A complaint that the arbitrator failed to take into account matters she was bound to consider, as distinct from particular pieces of evidence, alleges an error of law: Paradis [57]. However, the matters particularized were not matters the arbitrator was bound to consider. They were pieces of evidence. There is therefore no error of law as particularised in ground 2.
It is pertinent to note here, that, at arbitration, it was necessary for Mr Hayter to prove his psychiatric condition was work caused. Mr Hayter claimed his stress was work caused by reason of sitting idle in the crib room for extended hours following his change in role to leading hand in July 2014. He argued these hours in the crib room increased incrementally, such that by September, he would only be designated a whole shift about one day in three. This continued into October 2014. However, Mr Hayter reported low mood to his supervisors when he departed the minesite in September and October 2014. He gave his reason for these departures as marital difficulties. He did not allege work caused stress until November 2014. Hence, the defence case was that Mr Hayter's stress was not work caused but, was caused by marital difficulties.
There was therefore a conflict of evidence between what Mr Hayter said as to his matrimonial problems causing low mood in September and October and what he claimed thereafter, in November 2014 and at arbitration, was work caused stress. The arbitrator was required to resolve this conflict before she could make findings as to causation.
Even if the arbitrator was wrong to have found that Mr and Mrs Hayter did experience marital difficulties, such does not raise a question of law. The finding was not manifestly unreasonable. It was not based on illogical reasoning: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 and Paradis [55]. There was a factual basis for the arbitrator to make that finding, namely Mr Hayter's complaints of matrimonial difficulties to his supervisors in June, August, September and October. The June and August complaints of difficulties were made while Mr Hayter was still a leading hand and he cannot now complain that his low mood resulting in his early departure from a swing in August was the result of long periods on standby in the crib room. This is more fully dealt with below at [111] – [122].
Mr Hayter's supervisors could not give direct evidence of the state of the marriage of Mr and Mrs Hayter. They could only give hearsay evidence of what Mr Hayter said to them about his marriage in June, August, September and October 2014. What Mr Hayter said on each of those occasions, in the context of the issues at arbitration, was an admission against interest and admissible as an exception to the hearsay rule which, when added to his admission of having told white lies, other inconsistencies and his general lack of credibility, accuracy and reliability, all meant that his evidence was so largely non‑persuasive that the evidence of Mrs Hayter and the psychiatrists as particularized in appeal ground 2 could not, in any event, salvage the situation for him. In the end result, Mrs Hayter's evidence could not, and did not, assist Mr Hayter. Likewise, the psychiatrists could not overcome his evidentiary problems.
Appeal ground 2 secondly appeals an error of law claiming that inadequate reasons were provided by the arbitrator for her finding that marital problems caused Mr Hayter's early departures from the minesite. However, she did explain why she preferred the evidence of the work supervisors to that of Mr Hayter and why she was not persuaded by his evidence: see [133] below.
The arbitrator was not persuaded by Mrs Hayter's evidence. This is dealt with at [171] – [177] below. The evidence of the psychiatrists is dealt with at [194] – [206] below.
There was no need for the arbitrator to determine what marital problems existed, the reasons why Mr Hayter had to return home at least in terms of any marital dispute and why Mrs Hayter supported him in November 2014 and thereafter at arbitration. That she did not do so is not an error of law. These were not matters she was bound to consider.
The findings made by the arbitrator, and which are indirectly challenged in appeal grounds 1 and 2, were reasonably open to her on the evidence. The arbitrator only needed to resolve the issues identified at [19] above and she did so in the evidence before her. Once she determined the facts, resolution of the issues for determination become clear. Even if the arbitrator found the facts wrongly or upon a doubtful basis, she did not commit an error of law: Paradis [55]. Her findings were not manifestly unreasonable: Paradis [56].
Appeal grounds 1 and 2 do not raise a question of law.

Ground 3

The learned Arbitrator erred in law by requiring a contemporaneous complaint from the Applicant that idle time in the crib room was the cause of his mental injuries (D131 to D140, D176) without considering reasons given by the Applicant, thereby overlooking critical evidence, and failing to provide adequate reasons.
Particulars
Applicant explained that the cause of his depression was determined after the benefit of hindsight when David Bradbury, the Chaplin, said that stress from work was what started it. It was then that he started the paperwork by going to a doctor to get a first medical certificate for Worker's [sic] compensation.
He explained that it was the idle time that he had there waiting for work that really killed him. He was missing his wife and kids, and thinking of them. He may well have told Mr Milich that his wife was leaving and taking the kids, but that was the furthest thing from the truth. He has a supportive wife and they have a loving relationship.

This ground claims that the arbitrator required, as a matter of law, contemporaneous complaint from Mr Hayter as to the cause of his psychiatric condition before she could accept causation. She did not, as will be seen at [208] below. There is a further complaint that critical evidence was overlooked. It is also claimed in that ground that adequate reasons were not given.
This ground misunderstands the arbitrator's reasons and essentially repeats appeal ground 1 in that Mr Hayter does not accept the arbitrator's findings of facts. This ground does not give rise to a question of law.

Ground 4

This ground of appeal was abandoned.

Ground 5

The learned Arbitrator erred in law in critically omitting consideration of any and all of the features of FIFO work in the s 5(5) considerations in D164.

This ground alleges an error of law by omitting to take into account features of FIFO work as part of the statutorily required review of the s 5(5) considerations. However, Mr Hayter did not complain of all features of FIFO work. The arbitrator could not reasonably be expected to deal with unlimited features of FIFO work not being the subject of evidence specifically raised at arbitration. Mr Hayter complained only of sitting idle in the crib room without work, with that idleness increasing incrementally over time from July to September.
The arbitrator's reasons specifically refer to s 5(5). She found that only s 5(5)(f) was relevant; the other matters in s 5(5) did not assist her. She did not omit consideration of s 5(5) of the Act. Subject to comments concerning s 5(5)(b) at [181] – [192] below, the arbitrator was entitled to make her findings as stated.
The arbitrator was not bound to take all features of FIFO work into account. This appeal ground does not give rise to an error of law.

Ground 6

The learned Arbitrator erred in law at D174 by critically overlooking the fact that the feeling that the Applicant's employer did not want him back was consistent with aetiology of mental injury from being overlooked and left in the crib room. (see page 5 paragraph 9 of report of Dr Shub dated 8 May 2015.)

This ground simply repeats part of Mr Hayter's history to Dr Shub up to December 2014. Further, this ground misinterprets Dr Shub's report dealing with causation as set out at [198] below. The passage referred to from Dr Shrub's report deals with Mr Hayter's complaints both prior to his departure from the minesite and thereafter. The arbitrator necessarily made findings about Mr Hayter's complaints prior to his final departure from the minesite and in doing so, she did not overlook his evidence. In any event, the arbitrator did note that by 21 November 2014, a factor that may have contributed to Mr Hayter's illness, at that time, was a feeling that his employer did not want him back. However, this was outside the ambit of Mr Hayter's pleaded case. The events of November 2014 were not fully argued at arbitration, as will be seen at [240] – [244] below.
Appeal ground 6 does not raise a question of law.

Ground 7

The learned Arbitrator erred in law by critically misapprehending evidence, elevating subtle semantic differences as major conflicts in evidence, when there was no probative evidence of material conflict.
Particulars
a)D171 'put out' of supervisory role: whilst Mr Hayter volunteered to go back to machine operating and was then required to spend time in the crib room, this situation was brought about by cut backs of supervisory positions with Thiess taking over from Leightons (para 51 of Applicant's Statement). There was accordingly no reason to criticise Dr Caddy's certificate.
b)D172 'back in the crib room for 12 hours a day on stand by': Mr Milich stated in paragraph 20 of his statement that there were 3 days, 3 – 5 September 2015 [sic] where the Applicant was not appointed to any specific duties. Whilst the Applicant admitted to the odd errand, again there is no reason to criticise Dr Caddy's evidence.

This ground reflects findings on the evidence, namely that Mr Hayter was not put out of his leading hand role but rather, he himself chose to revert to the role of a machine operator and that he did not spend 12 hours a shift in the crib room. These findings are not a criticism of Dr Caddy's certificate. He simply reported what Mr Hayter told him. This ground involves factual findings which were reasonably open on the evidence. The findings are indirectly critical of Mr Hayter in that they contradict what Mr Hayter told Dr Caddy. This ground does not give rise to a question of law.

Ground 8

The learned Arbitrator erred in law by critically misapprehending the evidence at D174 and D177 when she concluded that as Mr Hayter had intended to fly back to work, there was no evidence he had a psychiatric illness at that time.

This ground of appeal misunderstands the arbitrator's reasons. The arbitrator simply noted that Mr Hayter intended to return to work on 30 October 2014 and would have done so, but for his chest infection. That was a highly relevant matter to the arbitrator. She also observed, quite separately, that there was no evidence of psychiatric illness at that time. Her observation was correct. This ground does not raise a question of law.

The real issue on appeal

Mr Hayter's application for compensation, referred to at [16] and [17] above, sets out his claim. The issues arising on the pleadings are set out at [19] above.
Only Mr Hayter could give evidence as to the existence and nature of his depression beginning in July after his change in role, his hours on standby in the crib room continuing to increase incrementally into September and October 2014 and his perceived reasons for that depression. HWE challenged his evidence and claimed that the depression suffered by Mr Hayter only arose from his marital difficulties. Therefore, the main issue at arbitration was the cause of Mr Hayter's psychiatric illness. This, in turn, required an examination of his evidence.
By reason of the arbitrator's factual findings on the evidence, only the first two issues identified by her at [19] above required determination. The findings on these two issues reflected the arbitrator's findings of Mr Hayter's credibility as a witness. He failed to satisfy the arbitrator that his psychiatric illness was work caused.
The real issue in this appeal then, is whether the arbitrator was wrong to find Mr Hayter had not proved the facts necessary to establish the cause of his psychiatric illness. This, in turn, comes back to Mr Hayter's credibility. This does not amount to a question of law and the 'linguistic gymnastics' engaged in the grounds of appeal outlined above cannot assist Mr Hayter. This appeal should be dismissed. However, if this is incorrect, it is appropriate to consider any error that may have arisen in not accepting Mr Hayter's evidence.

It is appropriate to first consider Mr Hayter's credibility as a witness.

The credibility of Mr Hayter

Mr Hayter's credibility requires examination from a number of different aspects.

The reason for Mr Hayter's change from leading hand to machine operator

Mr Hayter pleaded in his application for compensation that demotion causing psychological injury was an issue in the arbitration.
In his statement supporting the application, Mr Hayter stated that:
51.Thiess were coming to take over from Leightons in around July 2014. This meant that my role as a leading hand changed and I was put back to machine operator as they needed to cut back on the amount of supervisory roles.
52.Because I did not want to lose my job I said I would be happy to go back to operating the machinery and told my superintendent Murray Smalls that as long as I would be going back to the pit to operate the machines I would do so.
53.I was not angry about this change as my days always go quicker when I was working in the machines. I was not stressed at anyone or anything and was happy to do as I was told.
Mr Hayter's supervisor, Mr David Brown, provided a contrary statement as follows:
26.Stephen resigned from his leading hand role in August 2014 because the position he was in would mean a Monday fly in roster, and he wanted to go on the Thursday fly in mining roster. Stephen wanted that particular roster.
27.Stephen was my leading hand under mining at the time and it was decided it would greatly benefit his personal development if he could work the Thursday fly in roster.
Another of Mr Hayter's supervisors, Mr David Milich, also provided a contrary statement as follows:
7.Stephen was initially employed as an ancillary operator and was promoted to leading hand due to his experience and ability. He had previous experience as a leading hand with a past employer.
8.Stephen then decided to revert back to crew and operate the machinery again and stepped down from his leading hand position in late July 2014. I was the superintendent at Firetail when this occurred.
9.Stephen opted to change roles because he said he wanted to stay on the mining shift roster with a fly in on a Thursday instead of the alternative leading hand roster that has a fly in on a Monday.
10.Stephen had said the Monday fly in roster was hard on him at home as he had two small children and he would prefer the Thursday fly in.
11.This was at Stephen's request and we honoured this request. He was not asked to step down from his position as a leading hand.
12.From July 2014 Stephen was on the mining crew roster working as an ancillary operator at Kings Pit, flying in and out on Thursdays.
Further, Mr Lawrence Wood, from HWE, gave evidence that leading hands flew in and out of the minesite on Mondays and machine operators did so on Thursdays.
The need 'to cut back on … supervisory roles' as suggested by Mr Hayter in his first written statement at [51] outlined above was not directly contradicted by either Mr Milich or Mr Brown in their written statements. However, in their statements they each explained he gave them different reasons for his request for the change in role and their explanations were consistent with each other and with the evidence of Mr Wood. Mr Hayter's supplementary statement did not challenge his supervisors' statements. Mr Hayter did not explain to his supervisors that cutbacks at the mine caused him to change his role.
Given Mr Hayter's first statement, it was inconsistent of him to not challenge his supervisors' statements if he maintained his first statement was correct, as it seems he did in November 2014 when Mr Hayter gave his explanation to Dr Caddy who reported that his employer
did not have enough work so put out of supervisory role
which is not consistent with his evidence at arbitration when Mr Hayter said:
I'll be the first one to put my hand up and go back on a machine.
In cross‑examination, Mr Hayter said it was his preference to start on a Thursday because the swing commencing on a Thursday meant one extra day spent at home with his family. It was not about extra money. This is consistent with the evidence of Mr Wood and the statements of Mr Brown and Mr Milich as to Mr Hayter's reason for changing his role back to machine operator but, it is inconsistent with the reasons given by him in his first statement and to Dr Caddy.
At arbitration, Mr Brown, Mr Milich and Mr Woods were not challenged as to the need to cut back on supervisory roles. Neither however, was Mr Hayter.
It was not disputed that it was Mr Hayter's choice to change his role. On the evidence, it was open to the arbitrator to find that Mr Hayter chose to revert to being a machine operator. It was not necessary for the arbitrator to resolve the conflict as to the reason why Mr Hayter chose to change his role. However, he was neither demoted, nor 'put back' or 'put out' of his leading hand role.

The date Mr Hayter changed from leading hand to machine operator

Counsel for Mr Hayter, Mr B L Nugawela, submitted that Mr Hayter's position changed to machine operator 'as of 18 July 2014 (AB 346, from the respondent's Book of Documents)'. This is a reference to HWE's report following its own internal investigation into this matter, including the following note:
SH changed to level 7 (Leading Hand Rates) on the 18 July 2014. His rate was never reduced following this date.
This note seems to indicate Mr Hayter changed to, not from, leading hand rates on 18 July 2014. It may be that there were different levels of leading hands or it may be that level 7 was the only leading hand role. No attempt was made to explain this note. One explanation for it may be, as apparently indicated by Mr Hayter in re‑examination, that with the change in the corporate structure operating the minesite, one of the minesite operators was 'ringing (the other operator) to get me changed over onto their books'. It could well be that his promotion and pay were not recorded by the other operator until 18 July 2014. The full detail of the corporate structure and the changes which occurred around this time, including updating pay records, were not the subject of evidence. The HWE report does not help Mr Hayter in this regard.
There was contradiction in the evidence of the witnesses as to when Mr Hayter resumed his role as a machine operator. Mr Hayter and Mr Milich both provided statements that the change in role occurred in July 2014, whereas Mr Brown's statement nominated August 2014 and he maintained this stance in evidence.
There was however, other evidence.
First, the handwritten calendar of Mr Milich reveals that Mr Hayter worked as a leading hand until the end of his swing on Monday, 18 August 2014. He then returned home. The same calendar also reveals Mr Hayter's next swing, being his first shift other than as a leading hand, commenced on Thursday, 28 August. However, the calendar also records that he did not arrive at the minesite on that date. Mr Hayter flew in on Friday, 29 August and commenced work on day shift on Saturday, 30 August as a machine operator.
Secondly, the calendar shows that prior to Thursday, 28 August, Mr Hayter's swings in July and August all commenced and concluded on a Monday and that after Thursday, 28 August, Mr Hayter's swings all began and concluded on a Thursday.
Thirdly, consistent with the calendar, Mr Wood's evidence was that leading hands flew into site on a Monday and machine operators flew in on a Thursday.
Fourthly, in cross‑examination at arbitration, Mr Hayter gave evidence that he 'stepped down from being a leading hand' when he switched from a Monday fly in to a Thursday fly in. This is consistent with the calendar. However, in re‑examination at arbitration, Mr Hayter could not remember when he returned to the machine operator's role. He said it was 'a few months before' 18 October 2014.
Fifthly, the Minestar record of logins on machinery for the period between 14 July 2014 and 18 October 2014 shows Mr Hayter's first login on a machine was on Saturday, 30 August 2014. This record also shows that he operated machinery on 31 August and 1 September. This detail is consistent with Mr Milich's calendar as to Mr Hayter commencing as a machine operator and showing that he was operating machinery on 30 and 31 August and 1 September.
Sixthly, Mr Hayter gave evidence at arbitration that he spent his first three days as a machine operator 'in a machine'. This evidence is consistent with Mr Milich's calendar of Mr Hayter commencing machine operation on 30 August for three days and the Minestar login records showing that he was operating machinery on 30 and 31 August and 1 September.
Seventhly, the arbitrator considered it highly unlikely that Mr Hayter would not have had a single occasion operating machine prior to 30 August if, in fact, he had changed his role to that of a machine operator in July. This inference was reasonably open on the evidence.
The Minestar record of logins do not show all logins. They do not, for example, record light vehicle use.
The calendar kept by Mr Milich and the Minestar record of logins of machinery are contemporaneous business records which were not challenged by Mr Hayter at arbitration. Indeed, he sought to rely on them in his supplementary statement as will be seen at [97] and [103] below.
It was therefore reasonably open to the arbitrator to infer, from all the above matters, that Mr Hayter's change in role to machine operator occurred on 30 August 2014 and she so found. She was correct to do so. The inference was not drawn from illogical reasoning. Even if it was, there is no error of law: ABT (356) and Paradis [55].
It was argued that the arbitrator did not provide reasons for preferring Mr Brown's evidence. However, it should be noted that it was not just Mr Brown's evidence upon which the arbitrator relied or upon which she could have relied. There was all of the evidence to which reference has just been made. In the event, the arbitrator did give reasons for preferring Mr Brown's evidence. She said he was credible, forthright, thoughtful and had worked closely with Mr Hayter and had clearly held him in high regard.

Mr Hayter's pit location after the change in role

Mr Hayter said in his statement that after his change in role, he asked his supervisor if he could transfer from one location at the minesite to another, namely from Kings Pit to Firetail. His supervisor agreed and drove him over to Firetail. This supervisor has not provided a statement.
Mr Milich said in his statement that after the change in role, Mr Hayter was initially located at Kings Pit. He was unsure if Mr Hayter requested to transfer to Firetail. He just turned up there.
Mr Brown said in his statement that he did not have a machine for Mr Hayter to operate at Firetail and that he would have been better off at Kings Pit, where they had bigger equipment and he would have been more productive. However, Mr Hayter:
33.… did not want to go to Kings Pit and kept turning up on my crew bus. I kept telling him I did not have a machine for him. He seemed to want to stay with my crew. His sister Fiona was also on my crew and I believe this was the reason behind Stephen's desire to remain on my crew.
34.Stephen turned up on the bus for my crew approximately four times. On the fifth time I told him he had to go to Kings Pit the next day.
35.I explained to Stephen that the Kings Pit crew could use him more than I could. Even though he was being utilized at my pit it wasn't for the entire duration of the shift.
…
39.Stephen went to the Kings Pit for his following shift. …
The following shift however, was a night shift which commenced on 28 September. During that shift Mr Hayter had the flu, was physically ill and said he was depressed. He flew home the next day.
In evidence, Mr Hayter denied Mr Brown suggested to him that he work at Kings Pit, where there was more work available. Mr Brown's evidence was that he repeatedly told Mr Hayter to transfer to Kings Pit but, Mr Hayter repeatedly turned up at Firetail.
The arbitrator did not resolve this conflict as to pit location. There was no need to do so.
However, although Mr Hayter's pit location is a matter for consideration as to part of HWE's pleading as set out at [19.1] above, it also reflects on Mr Hayter's credibility because if Mr Hayter was truly concerned by reason of extended hours sitting idle in the crib room then, as Mr Brown suggested, Mr Hayter could have remained working at Kings Pit where more work was available. Indeed, when he first started as a machine operator at Kings Pit, he was given operating tasks as will be seen below at [95].

Mr Hayter's request for training as a truck driver

Mr Hayter's statement included:
59.I asked to be passed out as a truck driver because there was always trucks to drive but I was told I had too much experience as a machine operator and they refused to let me retrain.
60.I was told this by Wes I can't remember his last name, Blair McCloud, Cody West and Peter Thoroughgood at different times.
This part of Mr Hayter's statement is contradicted by his own handwritten timesheets which indicate, as will shortly be seen below at [98], that he was, in fact, trained on trucks and a digger between 3 and 7 September. He also accepted this in cross‑examination.
There was no need for the arbitrator to make a finding on this aspect of Mr Hayter's evidence. However, the impact on his credibility is self‑evident, especially given that he claimed to have been refused retraining by four people who were, presumably, employees of HWE acting in a supervisory role.

Mr Hayter's hours of work

In his first statement, Mr Hayter said:
54.From July 2014 onwards I would work on some machines but it was not always all shift long or every day
…
57.By September 2014 I was sitting around more and more and would only actually work on a machine for a whole shift every three days or so
and in cross‑examination in reference to his statement at [57] the following exchange occurred:
So how – was that [ie, September 2014] different from July when you first got back on machines or is that just different ‑ ‑ ‑?‑‑‑Yeah, yeah. Yeah, I was like I said, there was – it would go one day in the crib room, one day in the machine, one day in the crib room. Then two days in the crib room, half a day in the machine, three days in the crib room.
So your perception was then it was getting worse gradually over time?‑‑‑Mm.
Mr Hayter accepted in evidence that he was given a machine to operate on 30 and 31 August and 1 September 2014 at Kings Pit as follows:

30 August 6.45 am – 10.50 am

2.02 pm – 5.38 pm

31 August 8.50 am – 5.39 pm

1 September 7.26 am – 5.43 pm

The statement from Mr Milich included the following:
20.Annexed hereto and marked 'DM1' is a copy of Steven's roster between July 2014 and October 2014. … Based on the information contained in Steven's roster, it is apparent that there were only three days between 3 – 5 September 2015 where he was not appointed any specific duties.
Mr Hayter replied by his supplementary statement as follows:
2....
(c)David Milich says in paragraph 20 of his statement that I was not given any specific duties for three days between 3 – 5 September 2015. That is correct (see paragraph 64 of my statement to the investigator dated 5 February 2015). He, however, does not mention the fact that on other days, I was only given very limited duties. Looking, for example, the roster attached to his statement:
a.On 2 September, I only worked approximately 1 hr 40 min,
b.Between 3 – 5 September I did nothing,
c.On 6 September, I only worked approximately 2 hr,
d.On 7 September, I did nothing,
e.On 8 September, I worked 1 hr 37 min,
f.On 9 September, I did nothing,
g.On 10 September, I worked 1 hr 34 min,
h.On 11 September, I worked 21 min,
Before I flew out on 11 September.
Mr Hayter claimed to have only worked 1 hour 40 minutes on 2 September. However, Mr Brown was cross‑examined and gave evidence that, on 2 September, Mr Hayter was instructed to drive operators to Paraburdoo to fly out. Mr Brown said this took 6.5 hours. Mr Hayter in fact had agreed in his evidence that he did this, claiming it took 8.5 hours by reason that he stopped for lunch in Tom Price.
Contrary to Mr Hayter's claim at [2(c)] in his supplementary statement that he did 'nothing' on 3, 4, 5, 7 and 9 September, Mr Hayter's timesheets, handwritten by himself, were subsequently provided indicating as follows:
(a)on 3 September, Mr Hayter did 'AOZ training' for 12 hours;
(b)on 4 September, he was involved in 'AOZ load trucks' for 8.4 hours and on standby for 3.6 hours;
(c)on 5 September 2014, he was involved in 'Training in truck' for 6 hours, hotseating for 2 hours and also 'Push tiphead' for 3.5 hours, with a 'Late knock off due to late toolbox 1 hour';
(d)on 7 September, he was on standby and moving lights for 6 hours and 'training AOZ digger' for 6 hours; and
(e)on 9 September, he was hotseating and escorting a float for 12 hours.
When faced with these timesheets in cross‑examination, Mr Hayter conceded that he had not done 'nothing' as he claimed in his supplementary statement. He claimed that his supplementary statement was based on the machine login records.
Mr Hayter said that not all time recorded for training was in fact spent in training. However, he conceded he was involved in training as a truck driver which was inconsistent with his statement to the effect that he 'did nothing' and that he had been refused such training.
Mr Brown said that everyone was required to undertake at least six hours training on the trucks.
In his supplementary statement at [2(c)], Mr Hayter claimed he worked:
(a)on 6 September, for approximately 2 hours;
(b)on 8 September, for 1 hour 37 minutes;
(c)on 10 September, for 1 hour 34 minutes; and
(d)on 11 September, for 21 minutes.
Mr Hayter's timesheets reveal that for these shifts commencing on:
(a)6 September, he was on standby and moving lights for 9.5 hours and hotseating for 2.5 hours. The machine login shows he was operating a machine for 2 hours;
(b)8 September, he was hotseating for 3 hours, escorting a float for 9 hours and the login shows he was operating a machine for 1 hour 57 minutes; and
(c)10 September, he was hotseating and escorting a float for 12.5 hours. He also operated a machine for 55 minutes.
Mr Hayter's night shift starting 10 September ended on the morning of 11 September. His swing was then complete and he flew out.
In cross‑examination, Mr Hayter said hotseating meant he was operating another operator's machine under that operator's login. Further, standby meant that he was standing by waiting for work. He was told to round up the time he was doing tasks, such as windrow work, to make it appear that he was occupied throughout his shifts and not on standby.
Mr Hayter also claimed that someone else created entries in his timesheets. Mr Brown contradicted this saying that timesheets were only ever handwritten by the employee to whom the record related. He identified Mr Hayter's handwriting on the disputed timesheet entries. It seems fanciful to suggest that other people wrote details of work in Mr Hayter's timesheet.
Annexed to these reasons is a table setting out Mr Hayter's work history between July and October 2014, so far as can be ascertained from the evidence. This table reveals that it was only on 10 and 16 October 2014 that there are no recorded details of Mr Hayter's activities, contrary to his first statement at [57] and his cross‑examination as detailed at [94] above.

Shifts: 0530 hours – 1800 hours

1730 hours – 0600 hours

30 August	6.45 am – 10.50 am
2.02 pm – 5.38 pm
31 August	8.50 am – 5.39 pm
1 September	7.26 am – 5.43 pm