Kuenstner v Workers' Compensation Regulator

Case [2016] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:        

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

PARTIES:  

Kuenstner, Julio Bansano
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2014/343

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

 9 August 2016

HEARING DATES: 

HEARD AT:

12, 15, 16 and 17 June 2015
12, 13, 14 and 16 October 2015
23 November 2015 (Appellant's written submissions)
26 November 2015 (Respondent's written submissions)
10 December 2015 (Appellant's written submissions in reply)
11 January 2016 (Respondent's reply to the Applicant's written submissions)

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDERS:

1.      The Appeal is dismissed

2.      The decision of the Respondent 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 the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - injury a psychiatric or psychological disorder - 13 stressors - whether the appellant's injury arose out of, or in the course of, the appellant's employment - whether the appellant's employment was the major significant contributing factor to his injury - whether his injury arose out of, or in the course of, reasonable management action taken in a reasonable way - whether injury arose out of his perception of reasonable management action taken against him - appellant bears onus of proof

CASES:

Workers Compensation and Rehabilitation Act 2003 s 32

Alex Sabo v Q-COMP (C/2010/46) - Decision <
Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Avis v WorkCover Queensland (2000) 165 QGIG 788
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324
Blackwood v Adams [2015] ICQ 001
Bowers v WorkCover Queensland (2002) 170 QGIG 1
Boyd v Q-COMP (2005) 180 QGIG 1129
Browne v Dunn (1894) 6 R 67
Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101
Christine McHours v Q-COMP, C/2012/12
Coombes v Q-COMP (2007) 185 QGIG 680
Cooper v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
Davidson v Blackwood [2014] ICQ 008
Davis v Blackwood [2014] ICQ 009
Delaney v Q-COMP Review Unit (2005) 178 QGIG 197
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500
Elizabeth Miller v Q-COMP (C/2009/20) - Decision < v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001)
Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Lackey v WorkCover Queensland (2000)165 QGIG 22
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
Mater Misercordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144
Mayo v Q-COMP (2004) 177 QGIG 667
McMah v Simon Blackwood [2014] QIRC 013
Misevski v Q-COMP, C/2009/29 - Decision < v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519
Newman v Blackwood [2015] ICQ 014
Nilsson v Q-COMP (2008) 189 QGIG 523
Pollock v Wellington (1996) 15 WAR 1
Prizeman v Q-COMP (2005)…

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AGLC
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
Case
[2016] QIRC 83
Decision Date

CaseChat Overview and Summary

In the case of Kuenstner v Workers' Compensation Regulator, the appellant, Kuenstner, appealed a decision by the Workers' Compensation Regulator regarding his entitlement to workers' compensation. The central issue was whether Kuenstner's injury, a psychiatric or psychological disorder, arose out of or in the course of his employment. The claim was based on various stressors, including inadequate assistance from a colleague, perceived failures of management to address issues in the workplace, and specific incidents involving verbal abuse and improper kitchen practices.

The court needed to determine whether Kuenstner's employment was a significant contributing factor to his injury, if his injury arose out of or in the course of reasonable management actions taken in a reasonable way, and whether his injury arose out of his perception of such reasonable management actions. Given that Kuenstner bore the onus of proof, the court scrutinised the evidence presented to assess the validity of his claims.

The court found that while Kuenstner had experienced some stress due to inadequate assistance from a colleague and perceived failures of management to address workplace issues, management had taken appropriate actions in response to his concerns, albeit not permanently successfully. Additionally, the court concluded that the appellant had not provided sufficient evidence to support the claim that specific incidents of verbal abuse and improper kitchen practices were significant stressors. Consequently, the appeal was dismissed, and the decision of the Workers' Compensation Regulator was confirmed. Kuenstner was ordered to pay the Respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The Appeal is dismissed

2. The decision of the Respondent 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 the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence: According to the Appellant, in March 2013 whilst Head Chef Cranston Cumberbatch was on holidays for two weeks, the Appellant was basically doing the head chef's role of maintaining the kitchen, ordering stock, doing temp logs and maintaining the kitchen flow. He recalled that Cook Starr-Nolan was often engaged in other activities (including conversing on his mobile phone). As a result, the Appellant had to do his work as well to ensure that the job was done and meals were prepared. The Appellant explained to the assistant manager that Cook Starr-Nolan "wasn't a team player, and he wasn't, you know, fully, 100 per cent on working in the kitchen". He asked the assistant manager to speak to Cook Starr-Nolan about not having his phone on. However, after that, nothing was done and Cook Starr-Nolan still brought his phone. Despite the Appellant's pleas for help, his concerns about the kitchen were not rectified. The Appellant spoke to Venue Manager Ben Dyson about the matter twice, once in earlier February and again the day before the visit of Mr Drane, because Cook Starr-Nolan would not assist him. Despite Mr Dyson saying he would "sort it," the situation continued with Cook Starr-Nolan being on the phone. The Appellant said that he started experiencing issues with Cook Starr-Nolan in January 2013. After working with him for about six weeks, the Appellant started to realise that Cook Starr-Nolan "wasn't into food and he had tattoos that he was doing with clients and patrons." He would call in sick and the head chef would contact the Appellant to fill in that shift. The Appellant said he raised his concerns with Head Chef Rob Morris in about mid-January 2013. He also raised concerns with Head Chef Cumberbatch who was appointed in March 2013. The Appellant agreed that some action was taken in response to his concerns and that there would be an improvement in Cook Starr-Nolan's attitude and performance for a period and then he would slack off again. Cook Starr-Nolan left the Captain Cook Tavern in about May 2013. Although the hierarchy of the kitchen comprised the head chef, commis chef and cook, it was usual that only two of them worked on any particular shift. All three worked together one day each week (usually Friday as it was a busy day), and each of them was absent for two days each week. In cross-examination, the Appellant suggested that he experienced stress because he had to do additional work on the two days each week when he worked on the same shift as Cook Starr-Nolan. Having raised issues with Mr Morris, Mr Cumberbatch and Mr Dyson, the Appellant was not informed of what they did in response and, from what he witnessed in the kitchen, it was his perception that nothing was done. He suggested that if they had convened a mediation in the kitchen to talk about the issues he would have observed action in response to his concerns. However, the Appellant conceded he had not asked that there be mediation between him and Cook Starr-Nolan.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Consideration: On the basis of the evidence summarised above, I find that, in or around February and March 2013:(a)while Head Chef Cumberbatch was on holidays for two weeks, the Appellant, as the more qualified and experienced person on the kitchen staff, was in practice maintaining the kitchen and doing associated tasks;(b)on occasions during those two weeks, and at other times, Cook Starr-Nolan's attendance at work and attitude to work were below the standard required of a cook at the Tavern;(c)the Appellant had some personal issues with Cook Starr-Nolan which originated, in large part at least, as a response to the Appellant's assessment of Cook Starr-Nolan's attitude and actions in the kitchen and absences from the kitchen when he should have been on duty; (d)the Appellant expressed concerns about Cook Starr-Nolan to his immediate managers, including Venue Manager Dyson and Head Chef Cumberbatch, but did not ask for mediation between himself and Cook Starr-Nolan;(e)Mr Dyson, Head Chef Cumberbatch and other managerial staff spoke with Cook Starr-Nolan about such matters as being late for work, not doing his job properly, kitchen safety issues, his attitude and his use of the telephone at work (and at least some of those conversations could be characterised as counselling sessions);(f)as a result of those conversations, there was some improvement in Cook Starr-Nolan's attitude and performance before he would slacken off again;(g)although the Appellant was not involved in the counselling sessions with Cook Starr-Nolan, he was aware that Cook Starr-Nolan was reprimanded;(h)although the Appellant perceived, incorrectly, that little or nothing had been done in response to his concerns, management had taken appropriate (though not permanently successful) action;(i)as a result of the inadequate assistance provided to him in the kitchen on the two days each week when he worked on the same shift as Cook Starr-Nolan, the Appellant had to do some additional work and experienced some stress (and perhaps frustration or annoyance) as a consequence;(j)the Appellant was not observed to be overloaded with kitchen duties, and he did not report to a doctor or management that he was suffering stress. Consequently, Stressors 1 and 2 were only partially proven and, although management took appropriate actions in response to the Appellant's concerns, those actions were not permanently successful. Stressors 3 and 4 Stressor 3: "That instead correcting kitchen issues with Cook Taiperty, whilst Head Chef Cranston was on holidays, Venue Manager Ben Dyson with a very loud voice for Tavern customers to hear abused Chef Julio with the use of f…. words. The uncalled abuse on kitchen issues should have been addressed to the Head Chef or to the non-existent Sou Chef - not Chef Julio." Stressor 4: "That around the same time Chef Julio was targeted by Area Manager Dane Drane claiming he inspected the kitchen after serving lunch there was oil left in the tray, Cook Taiperty failed to empty the tray."