Kuenstner v Workers' Compensation Regulator
[2016] QIRC 83
•9 August 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 |
PARTIES: | Kuenstner, Julio Bansano v Workers' Compensation Regulator |
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 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 < |
| APPEARANCES: | Mr H. Kuenstner, appearing as agent on behalf of the Appellant |
Decision
Julio Bansano Kuenstner ("the Appellant") is a chef. He claims to have suffered a psychological injury during the course of his employment as a chef by Australian Leisure and Hospitality Group Pty Ltd ("ALH"). On 25 February 2014 he lodged with self-insurer, Woolworths, an Injured Worker Statement Form in which he described his injury as "work related stress." Woolworths rejected his application for compensation.
By letter dated 25 November 2014, a review officer of the Workers' Compensation Regulator ("the Respondent") advised the Appellant of the Respondent's decision of that date to confirm the decision of Woolworths to reject his application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") against that decision.
Background
The Appellant was born in June 1987. In December 2005, while still at high school, he commenced employment with ALH as a kitchen hand. Early in 2009, he commenced his apprenticeship as a chef. He completed that apprenticeship in December 2012 and was awarded a Certificate III in Hospitality (Commercial Cookery) from the Southbank Institute of Technology (Exhibit 11).
The Appellant served two and a-half years of his apprenticeship at the Lawnton Tavern. In August 2012, he transferred to the Warner Tavern to complete practical aspects of his apprenticeship (see T2:44, 3:45).
On 1 December 2012, the Appellant was transferred to the Captain Cook Tavern. Most of the events or interactions which, he claims, caused his psychiatric or psychological injury and gave rise to his claim for compensation occurred there.
On 1 December 2013, following a series of alleged events and interactions, the Appellant was provided with a notice to attend a performance meeting in relation to allegations of misconduct made against him (Exhibit 15). Having attended a meeting at which he was counselled about unsatisfactory aspects of his conduct within the workplace, he was provided with a written warning by letter dated 3 December 2013 (Exhibit 16). About 17 or 18 December 2013, the Appellant was transferred at his request from the Captain Cook Tavern to the Petrie Hotel.
By letter dated 21 January 2014, the AHL Human Resources Manager responded to various items of correspondence from the Appellant and his father in relation to aspects of his employment, his concerns about being disciplined and other matters, and his experience of stress (Exhibit 14). The Appellant commenced a period of sick leave on 27 January 2014 and made his application for compensation dated 25 February 2014 (Exhibit 12).
Legal framework
The appeal is to be resolved by reference to s 32 of the Act, in particular the definition of "injury" in subsection (1).
Before 29 October 2013, s 32(1) provided:
"(1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
As a consequence of amending legislation that commenced on 29 October 2013, s 32(1) provides:
"(1)An injury is a personal injury arising out of, or in the course of, employment if-
(a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury."
As a result of the different wording, and depending on when his injury occurred, the Commission has to decide whether the Appellant's employment was:
(a) "a significant contributing factor" to his injury; or
(b) "the major significant contributing factor" to his injury.
Consequently, it is necessary to determine when the Appellant's injury was sustained before ascertaining the relevant definition of injury.
Subsection 32(5) of the Act states:
"(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action taken by the regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way-
·action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
·a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
In its written submissions, the Respondent:
(a) concedes that the Appellant is a "worker" for the purposes of the Act; and
(b) concedes that the Appellant has suffered a psychological/psychiatric injury; but
(c) notes that the timing of the onset of the Appellant's initial symptoms and the timing of the onset of his psychiatric injury is very much in issue.
It is clear from the Respondent's submission that the issues to be resolved in this case are:
(a) when the Appellant suffered his injury;
(b) whether his injury arose out of, or in the course of, the Appellant's employment;
(c) depending on when the injury occurred, whether the Appellant's employment was "a significant contributing factor" or "the major significant contributing factor" to his injury; and
(d) whether the Appellant's injury is excluded from the definition of "injury" by the operation of s 32(5) of the Act.
Although the appeal is against the decision of the Respondent, the proceedings are not conducted as an appeal. Rather, the proceedings are conducted as a hearing de novo. The Commission decides the matter afresh by reference to the evidence before it and the submissions made by the parties to the proceedings, not by reference to the reasons for decision of the Respondent on the material to which the Respondent had regard in making its decision.
The Appellant bears the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.
Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. The possibility of an appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.[1]
[1] See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 (Hall P) and cases cited.
There is room for intuitive reasoning when determining whether a worker has suffered an "injury" within the meaning of the Act. But, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.[2]
[2] Nilsson v Q-COMP (2008) 189 QGIG 523, 526 (Hall P).
In a case where expert medical evidence is led, before any such expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence.[3]
[3] Coombes v Q-COMP (2007) 185 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J).
Accordingly, the appeal will only succeed if the Appellant satisfies the Commission that:
(a) he suffered an injury that arose out of, or in the course of, his employment;
(b) the employment was either a significant contributing factor to the injury or the major significant contributing factor (depending on the date of the injury); and
(c) his injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way, or his perception of reasonable management action being taken against him.
Legal tests for deciding whether an injury is work-related
The legal test that the injury must arise out of, or in the course of, employment is relatively undemanding. There are decisions for the propositions that:
(a) the phrase "arising out of" is wider than "caused by" and, although it involves some causal or consequential relationship between the employment and the injury, "arising out of" does not require that direct or proximate relationship that would be necessary if the phrase used were "caused by;"[4]
(b) an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury;[5]
(c) in determining whether an injury occurred "in the course of" employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.[6]
[4] Avis v WorkCover Queensland (2000) 165 QGIG 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6.
[5] Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324.
[6] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 484 (Mason CJ, Deane, Dawson and McHugh JJ)
There might be more debate about the meaning or scope of the expression "the major significant contributing factor." When introducing the amending Bill on 15 October 2013 the Attorney-General said:
"The bill will increase the onus on workers to prove psychiatric and psychological disorders are work related. Workers will have to satisfy insurers that their employment was 'the most' significant contributing factor to the injury or aggravation in order to be compensated."
In my view, the current requirement is more demanding or stringent than its predecessor because the Act now requires the employment be "the major" rather than "a" significant contributing factor to the injury, apparently removing the possibility that an application for compensation could be accepted where employment was simply one of a number of significant contributing factors to the injury.[7] "Major" is one of three adjectives describing the nature of the necessary factor. It is used in its ordinary English sense of "greater, as in … importance," "very important or significant,"[8] and "unusually important or serious or significant."[9]
[7] See Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101, [34] (O'Connor DP); Cooper v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38, [23]-[24] (Fisher C).
[8] Macquarie Dictionary, 5th edn, 2009, 1010.
[9] The Australian Concise Oxford Dictionary, 7th edn, 1987, 652
The Act as amended does not preclude claims being accepted where the injury is caused by more than one significant contributing factor. As I read s 32(1)(b), a number of factors could contribute to a worker's psychiatric or psychological disorder. However, the worker's claim will only be accepted under the Act if their employment was "the major significant contributing factor" to their disorder.
Whether employment is the major significant contributing factor to an injury is a question of mixed law and fact to be determined by the Commission.[10] In reaching that determination, the Commission can be assisted by evidence given by medical practitioners.[11]
[10] Mater Misercordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144; Ward v Q-COMP (C/2011/39)
[11] See Davidson v Blackwood [2014] ICQ 008; Q-COMP v Parsons (2007) 185 QGIG 1, 3 (Hall P); Davis v Blackwood [2014] ICQ 009, [51] (Martin J).
There are decisions for the propositions that:
(a)the reference to "employment" in s 32(1) is to employment as a set of circumstances, that is to the exigencies of employment of the worker by the employer, and refers to what the worker in fact does during the course of employment;[12]
[12] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529 [27].
(b)the fact that an injury has been suffered arising out of, or in the course of, employment is not sufficient to establish that the employment has been "a significant contributing factor to the injury" (and hence "the major significant contributing factor") and there needs to be a more substantial connection between the employment and injury;[13]
[13] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 532, [42]-[43].
(c)employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs;[14]
[14] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.
(d)if innocuous events which actually occurred were totally misconstrued by the claimant because of an existing condition, and the claimant imagined that other events or incidents had occurred, the claimant's employment could be said to be a contributing factor but not a significant (and hence not the major) contributing factor;[15]
[15] WorkCover Queensland v Buchanan (2000) QGIG 124.
(e)the operation of disturbed perception and reasoning upon objectively identified workplace issues (such as the presence of toxic compounds in the product with which a claimant was required to work) can be sufficient to make the causal connection between the disorder and employment;[16]
[16] Q-COMP v Riggs (2005) 179 QGIG 251.
(f)where a claimant is mistaken about what their employer was asking them to do and becomes distressed on the basis of that misunderstanding such that there was no factual basis for their concern, or the workplace issues could be understood as pure fantasy, their employment would not be a significant contributing factor to the injury;[17]
(g)events that do not occur in the workplace cannot contribute to the development of a work related psychiatric or psychological condition.[18]
Legal tests for deciding whether an injury arose out of, or in the course of, reasonable management action
[17] Boyd v Q-COMP (2005) 180 QGIG 1129.
[18] Misevski v Q-COMP C/2009/29, [30].
Numerous decisions of the Commission and Industrial Court include discussions about the operation of s 32(5)(a) of the Act. They provide the context in which this aspect of the appeal will be decided.
In Q-COMP v Queensland Rail,[19] President Hall wrote:
"Section 32(5)(a) of the Act operates, inter alia, to deny a worker access to statutory benefits under a no-fault scheme notwithstanding that the injury exists, notwithstanding that the injury arose out of or in the course of the worker's employment and notwithstanding that the employment was a significant contributing factor to the injury."
[19] Q-COMP v Queensland Rail, Decision C/2011/26 at [11].
In Q-COMP v Foote (No 2), President Hall wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[20] In relation to those statutory qualifications, Hall P wrote:
"Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[21]
[20] Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810 (Hall P).
[21] Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810 (Hall P).
It follows that, as Justice Martin has observed, in circumstances where the trigger for the injury was reasonable management action taken in a reasonable way, then "it is an error not to have concluded that the injury was excluded by virtue of s 32(5)."[22]
[22] Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001, [21].
In Lackey v WorkCover Queensland,[23] President Hall accepted that:
"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"
The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[24]
[23] Lackey v WorkCover Queensland (2000)165 QGIG 22.
[24] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stephens Brothers Pty Ltd (1984) 154 CLR 552, 555 and 559; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505.
In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[25] President Hall stated that the statutory provision:
"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way. It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way." (emphasis added)
[25] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003)172 QGIG 6, 6-7.
He continued by reiterating that it was settled by the decision in Avis[26] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[27]
[26] Avis v WorkCover Queensland (2000) 165 QGIG 788.
[27] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7.
However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[28] Justice Martin has expressed his agreement with the reasoning in Q-Comp v Hohn where President Hall said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[29]
[28] See Q-COMP v Hohn (2008) 187 QGIG 139, 144; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.
[29] Davis v Blackwood [2014] ICQ 009, [51].
There is also authority in decisions of President Hall for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[30]
[30] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197. See also Re Yu and Comcare [2010] AATA 960.
In Bowers v WorkCover Queensland,[31] President Hall rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
[31] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).
There are also decisions to the effect that:
(a) what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[32]
(b) it is not necessary that management action be perfect or above criticism,[33] and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[34]
[32] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C); McMah v Simon Blackwood [2014] QIRC 013, [37] (O'Connor DP).
[33] Misevski v Q-COMP, C/2009/29, 6 November 2009, [27]; Christine McHours v Q-COMP, C/2012/12 [10].
[34] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.
In Prizeman v Q-COMP,[35] President Hall stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
[35] Prizeman v Q-COMP (2005) 18 QGIG 481.
Where there are multiple stressors alleged to be management action, the Commission may make a more "global" evaluation of management action when considering whether that management action was unreasonable or was taken in an unreasonable way (e.g. where there are were repetitive blemishes joined by subject matter, time and personality in a discordant workplace).[36]
[36] Delaney v Q-COMP Review Unit (2005) 178 QGIG 197, 198 (Hall P).
For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility for management action being taken in a reasonable way lies with the management. Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[37] Language, tone of voice and demeanour are relevant to the issue whether action was taken in a reasonable way.[38]
[37] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision < , [21]
[38] WorkCover Queensland v Heit (2000) 164 QGIG 121, 122 (Hall P).
The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[39] As Justice Martin stated:
“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[40]
[39] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.
[40] Davis v Blackwood [2014] ICQ 009, [47].
Stressors
Part of the task of the Commission is to decide which of the stressors identified by the Appellant are significant in giving rise to his condition.
In accordance with the Further Directions Order dated 12 March 2015, the Appellant filed a Statement of Stressors. That document lists the following 13 events between March 2013 and January 2014, which are said to be "reasons for sustained psychiatric/psychological injury/illness" referred to in the Licensed Investigator IDIS Group report 26 March 2014:[41]
[41] The Licensed Investigator IDIS Group Report was not in evidence in these proceedings.
(1)"That during the month of March 2013, Head Chef 'Cranston' on holidays for 2 weeks, there was no Sou Chef (a requirement), Chef Julio performed all head chef duties replenishing food stocks etc., Cook 'Taiperty Nolan'" (part time tattooist) neglected kitchen duties attending to his customers on his mobile phone, there was an overload of cooking for Chef Julio. The Assistant Manager "Thierry and Taiperty" (both indigenous New Zealanders) refused around 15 repeated request from Chef Julio not following up his pleading for help.
(2)That in late February or early March 2013, Chef Julio also requested help/intervention from Venue Manager Ben Dyson for the above stated reasons no help was forthcoming.
(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.
(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.
(5)That after forwarding a written complained to Head Office Melbourne Area Manager Dane Drane was required to sort issues with Chef Julio, that meeting took place in late February 2013, subject; non-appointment to Sou Chef position. The meeting lasted for 13-15 minutes only, there was no mention regarding the issue of Chef Julio's Sou Chef position.
(6)That a letter received from Jenny Wregg Human Resources stated that Area Manager Dane Drane discussed the Sou chef position with Chef Julio for 1 hour. Subsequent to the reply from Human Resources Manager Jenny Wregg, Ashley Harris ALH Investigator checked Chef Julio's time line on CCTV, confirming Area Manager Dane Drane misleads Melbourne Head Office. In August 2013, at mediation prior Head Chef Cranston's transfer to the North Lakes Tavern Venue Manager Ben Dyson was informed by head chef 'Cranston' - a Sou Chef was needed.
(7)That subsequent to the above described incidents Chef Julio at that time employed by ALH without any incidents for 8 years was targeted by Area Manager Dane Drane and Venue Manager Ben Dyson for a dismissal.
(8)That for over 2 weeks Chef Julio was the acting Head Chef, Steve Speack was appointed as the new head chef (at that time for 3 month on probation) Chef Julio instructed on kitchen procedures. At that time Head Chef Steve Speak over ordered chicken schnitzel and large quantities of chips, stored in the cool room instead the freezer. Prior Chef Julio's days off, 'Julio' advised Head Chef Speak not to serve the smelly chicken, returned by Tavern Patrons. Instead Head Chef Speack sorted cross contaminated chicken schnitzels indented to serve smelly chicken for lunch the next day - the cause for Salmonella poisoning. Chef Julio was wrongfully accused of undermining Head Chef!
(9)That Chef Julio also raised his concerns with Venue Manager Ben Dyson with the knowledge of Head Office management in Bulimba, Chef Julio was framed with false allegations, concocted evidence was produced by Venue Manager Ben Dyson with the support of Ezra Pyers, Bulimba Head Office management arranged a trumped up investigation claiming Chef Julio undermined the newly appointed Head Chef Steve Speak.
(10)That during the same period after Cook Taiperty's replacement, Venue Manager Ben Dyson appointed his friend Sean Beck as a Cook who had no knowledge of cooking tavern food, Head Chef Cranston and Chef Julio instructed him how to prepare food, many times the COOK sent out food half cooked only. The COOK distorted factual kitchen issues, his uniform was unwashed (owned 1 uniform only) had mental issues, was on prescription drugs. There was a build up for multiple stressors, especially with Venue Manager Ben Dyson stating that on food preparations Cook Sean Beck and Chef Julio are equal, Julio trained 4 years at the South Bank Institute of Technology it included food safety.
(11)That following Venue Manager Ben Dyson's dismissal in December 2013, Bartender Gracie Mills, De Facto of Cook Sean Beck posted during working hours on Face book in December 2013, threatening with retaliation.
(12)That after Chef Julio was transferred to the Petrie Hotel; he was shunned and called a "TROUBLEMAKER" by Bartender Ronan.
(13)That in January 2014 the Melbourne Head Office Recourse Manager Jenny Wregg informed Chef Julio "HIS WORK WITH ALH HAS BECOME UNTENABLE"." (Emphasis and errors in original)
Having listed the 13 stressors the Appellant wrote:
"All above stated incidence plus many more are fully documented causing a build up of work related psychological injuries deliberately manufactured by ALH management with the intent to create a reason to dismiss Chef Julio, who was assisted by the Fair Work Commission President The Hon Justice IJL Ross preventing the pre-arranged dismissal." (Errors in original)
The Appellant agreed that he had the opportunity of preparing the Statement of Stressors in conjunction with his father, and that he had made sure that the document represented all of the factors that he wanted to raise as the cause of him becoming unwell.
As the President of the Commission, Justice Martin, stated in recent decisions:
(a) a statement of stressors is an aid in the determination of a worker's entitlements;[42]
[42] Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [39].
(b) the process of filing and serving a list of stressors is used to identify those events or matters which an appellant worker says caused the psychiatric or psychological injury;[43]
[43] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7]; Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [37].
(c) the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[44]
[44] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].
(d) the list of stressors is not, by itself, evidence;[45]
[45] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].
(e) the provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[46]
[46] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].
(f) the statement of stressors serves to confine the issues which must be considered on the appeal, and an appellant may not depart from the statement of stressors without leave;[47]
(g) the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[48]
(h) the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[49]
[47] Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [35].
[48] Blackwood v Adams [2015] ICQ 001, [17].
[49] Blackwood v Adams [2015] ICQ 001, [19].
Conduct of the appeal
The Appellant's father, Hans Kuenstner, appeared as the authorised agent of the Appellant. Mr Kuenstner Snr is not a lawyer, and was not familiar with the conduct of hearings before the Commission. In many respects, the practical difficulties that attend many proceedings conducted by litigants in person were apparent in these proceedings. These included difficulties with the framing of appropriate questions of witnesses and with the tendering of documentary evidence in an appropriate manner. Mr Kuenstner Snr brought to the hearing a bundle of documents which he asserted were relevant to the appeal. Some of them are in evidence.
Mr Kuenstner Snr was actively involved in many of the events that preceded the lodgement of the claim for compensation and the lodgement of the appeal to the Commission. He prepared many documents that the Appellant signed and are significant for this appeal, namely:
(a) the Injured Worker Statement Form (Exhibit 12), which Mr Kuenstner Snr hand wrote; and
(b) letters and related documents sent to management of ALH between 8 December 2013 and 17 February 2014 in relation to warnings and disciplinary proceedings involving the Appellant (Exhibits 1, 2, 3, 4, 5, 6, 9 and 10), which he typed.
The Appellant and Mr Kuenstner Snr gave evidence to the effect that the documents were prepared on the basis of notes and oral elaborations and instructions provided by the Appellant. The letters were expressed using Mr Kuenstner Snr's phraseology rather than the Appellant's "different wording." Although the documents were signed by the Appellant, some refer to him in the third person. That is consistent with Mr Kuenstner Snr having prepared them. Mr Kuenstner Snr gave oral evidence that he wrote the letters "because my son was accused of doing things he has not done." However, Mr Kuenstner Snr rejected the suggestion that he was the motivating force behind the documents and this appeal. So did the Appellant, who explained that he told his father what to write in the Injured Worker Statement Form and that the Appellant proof-read and signed it.
Other evidence (some of which is summarised in these reasons) also shows how extensively and actively Mr Kuenstner Snr was involved in events that preceded the lodgement of the claim for compensation and in the prosecution of the claim. For example, Mr Keunstner Snr:
(a) attended an interview conducted with the Appellant by ALH's Area Manager Dan Drane and Venue Manager Ben Dyson about the Appellant's work performance or conduct in relation to incidents in the kitchen in about March 2013;
(b) was present as a witness or support person in a meeting on 2 December 2013 convened by Human Resources Manager Ezra Pyers to investigate allegations against the Appellant in relation to incidents in the workplace;
(c) attended each of the six consultations the Appellant had with his general practitioner, Dr Lindsay Davidson, between 28 January 2014 and 8 May 2014 (Mr Kuenstner Snr gave evidence that at the first consultation the Appellant, who "was in a very depressed state," asked him to inform Dr Davidson about what had happened to him, and her consultation notes record that on that occasion he did most of the talking and appeared, at a subsequent consultation, to be a "forceful character");
(d) attended and spoke at the Appellant's consultations with his next general practitioner, Dr Bhat;
(e) had three telephone conversations with Mr Pyers about allegations concerning the Appellant's behaviour at work.
There was no evidence that the Appellant, aged 26 in 2013, was incapable of doing many of those things on his own. He completed year 12 at school and a three year course as part of his apprenticeship to qualify as a chef. He can read and write in English. As a witness he demonstrated that he is a thoughtful, intelligent man who at times put his recollection or version of events firmly and with conviction. Yet it was readily apparent that the conduct of the appeal was very much in the hands of Mr Kuenstner Snr, and the Appellant appeared to play little if any part in instructing or assisting his father during the hearing.
It is clear that Mr Kuenstner Snr prepared the written submissions on behalf of the Appellant. The conclusion to the written submissions commences:
"I Hans Kuenstner, appointed as an Agent by Appellant Chef Julio Kuenstner regretfully without the advantage of any legal training endeavour to inform the Commissioner of all truthful events bringing on Chef Julio's work related stressors."
The Respondent is meant to behave as a model litigant in proceedings such as these. Counsel for the Respondent, Mr O'Neill, took appropriate objections to questions (and to the tender of some documents) but otherwise provided a level of assistance in relation to the procedures before the Commission consistent with his client's model litigant role.
It is appropriate to make that observation because the written submissions made on behalf of the Appellant contained numerous and sometimes vitriolic criticisms of Counsel for the Respondent and his instructing officer in relation to aspects of their conduct during the course of the hearing. A careful analysis of those criticisms indicates that many of them arise from a misunderstanding of the role of Counsel. Others are mistaken allegations of impropriety in relation to the production into evidence of a letter from the Appellant to the General Manager of Child Support dated 22 September 2014 (Exhibit 19), which contains material adverse to the Appellant's case.
The Appellant's written submissions contended, for example, that Counsel for the Respondent put words in people's mouths and manipulated facts. It was clear, however, that in the course of cross-examination, counsel was testing the evidence of witnesses and putting propositions to them that reflected evidence called by the Respondent. That was in accordance with the rule that counsel are obliged when cross-examining to provide the witness with the opportunity to deny the evidence of that Counsel's own witnesses. A failure to cross-examine a witness on the evidence of that other witness may be taken as an admission of the truth of that evidence.[50] In that context, I reject the Appellant's contentions in this case that counsel was putting words into the mouths of witnesses or manipulating facts.
[50] Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 44 ALR 607.
The Appellant (or at least Mr Kuenstner Snr) appeared to allege that a witness (or witnesses) called by the Respondent was "coached" by Counsel for the Respondent in relation to the evidence they would give to the Commission. In apparently equating a barrister having a conference with a witness as them coaching the witness, the Appellant misunderstood the process of preparing for a hearing and made unsubstantiated allegations against Counsel for the Respondent.
Much time and energy was spent in the course of the hearing dealing with contentions about whether the Appellant's letter dated 22 September 2014 to the General Manager of Child Support should be evidence in these proceedings. The Appellant made various allegations about how the Respondent acquired that letter, and disputed its relevance to this appeal and the propriety of relying on it. It is not necessary here to recount the contentions made and dealt with at length, particularly on day five of the hearing.[51] It is sufficient to note that I am satisfied that:
(a) the letter was signed by the Appellant;
(b) the letter was provided to the Respondent by the Appellant along with other documents on a USB stick on 23 September 2014 in the course of disclosing to the Respondent the documents in the Appellant's possession relevant to the matter in issue in these proceeding; and
(c) that the contents of the letter are relevant to both the basis on which Dr Matheson formed an opinion about the cause of the Appellant's psychiatric or psychological disorder and the credibility of the Appellant.
[51] See T5: 4, 11-44
Although some latitude was given to the Appellant and his representative in the conduct of the appeal, it remains the case that:
(a) the decision about the appeal can only be based on evidence before the Commission; and
(b) the Appellant bears the onus of proof on the balance of probabilities.
The detailed written submission made on behalf of the Appellant commences with the statement that it:
"identifies Appellant Chef Julio's psychological injuries in the course of his employment, the proof employment was the major significant contributing factor for injuries sustained. Furthermore, the court proceedings provided the 'proof' management actions are the major contributing factor in respect to a build-up of work related stressors ..."
The conclusion to the submission refers to its "long list of identified causes causing psychological injury." The submission summarises much of the evidence in the case in the order in which that evidence was given. However, it does not analyse the evidence by reference to the 13 stressors particularised by the Appellant. It includes commentary and criticisms of the Respondent (dealt with above), and appears to include or refer to material that was not provided as evidence during the hearing.
For example, the overarching statements in relation to the range of stressors said to have given rise to the Appellant's injury include a reference to those stressors "incubating in November 2012" with the alleged actions of the venue manager at the Lawnton Tavern. The submission expressly states that the "incubation of the first stressor was not listed in the list of stressors," although it was referred to several times in the course of the hearing. The Commission cannot consider stressors that were not identified in the Statement of Stressors (see [47] above). Nor can it give any weight to what purports to be evidence, if that evidence was not received properly in the course of the hearing. Such material must be disregarded.
For those reasons, the Appellant's written submissions (although broad in scope) are not as helpful as they might be. That does not relieve the Commission of the obligation to deal with the appeal by reference to the listed stressors. However, it is not for the Commission to make the case for the Appellant. The Commission can only deal with the case which the Appellant has made, based on evidence properly adduced during the hearing.
Evidence in relation to the injury and its cause
Given the way the appeal was run, it is appropriate to consider in the following order:
(a)the evidence in relation to each nominated Stressor to assess whether each event or interaction occurred in the way contended by the Appellant and, to the extent relevant, whether the event or interaction involved reasonable management action taken in a reasonable way;[52] and
(b)the evidence of the Appellant[53] and the medical experts[54] respectively, as to the nature of the Appellant's injury, the cause of his psychiatric or psychological condition, and when his injury occurred.
[52] See paragraphs [66] to [406].
[53] See paragraphs [407] to [425].
[54] See paragraphs [426] to [445] and [459] to [472].
As noted earlier, the Appellant did not make submissions in relation to specific stressors, preferring to summarise the evidence in the order in which it was given. The Respondent made submissions in relation to every stressor but in some instances the submissions were made about two stressors together on the basis that the factors identified those stressors can be dealt with more effectively together. The following analysis of the evidence and submissions adopts the format used by the Respondent. Accordingly:
(a) Stressors 1 and 2 are considered together;
(b) Stressors 3 and 4 are considered together;
(c) Stressors 5 and 6 are considered together; and
(d) Stressors 8 and 9 are considered together.
Some evidence was relevant to more than one stressor. It was not clear to which stressor some other evidence related.
Stressors 1 and 2
Stressor 1: "That during the month of March 2013, Head Chef 'Cranston' on holidays for 2 weeks, there was no Sou Chef (a requirement), Chef Julio performed all head chef duties replenishing food stocks etc., Cook 'Taiperty Nolan'" (part time tattooist) neglected kitchen duties attending to his customers on his mobile phone, there was an overload of cooking for Chef Julio. The Assistant Manager "Thierry and Taiperty" (both indigenous New Zealanders) refused around 15 repeated request from Chef Julio not following up his pleading for help."
Stressor 2: "That in late February or early March 2013, Chef Julio also requested help/intervention from Venue Manager Ben Dyson for the above stated reasons no help was forthcoming."
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.
Area Manager Dan Drane gave evidence that he was made aware by Mr Dyson of some interpersonal issues in the kitchen, apparently involving Cook Starr-Nolan and Cook Sean Beck. According to Mr Drane, it seemed to Mr Dyson that the Appellant was "highlighting a number of other people's shortcomings in order to distract the attention that was placed on him for his performance". Mr Drane addressed the issue with Mr Dyson as they were Mr Dyson's staff and he was accountable for their performance. Mr Drane asked him to try to resolve the issues amicably and get on with running the business effectively.
Mr Dyson described the Appellant's performance as a commis chef as "very hit and miss" in the sense that there tended to be more bad days than good. Although Mr Dyson had concerns about the Appellant's performance in the kitchen, the main issues that arose involved the Appellant's "interactions with other staff members, not being the team player and being a bit of a pot-stirrer." He recalled that the main staff issues were between the Appellant and Cook Starr-Nolan, who commenced work at the Tavern before Mr Dyson commenced there and who had "rather immense personal issues with his family." In the absence of Head Chef Cumberbatch, they were consistently "bickering and backstabbing each other." There was a decrease in performance by both of them. The tensions between the two men were brought to Mr Dyson's attention on "many occasions" by the management team, half of the frontline staff, and the Appellant and Cook Starr-Nolan. In response, Mr Dyson first addressed the head chef, to whom the Appellant reported. Mr Dyson did not give him directions, and Mr Cumberbatch was apparently happy to try to resolve the issues within the kitchen before getting higher management involved. However, they were never resolved.
Mr Dyson hosted a couple of performance management sessions with him, Head Chef Cumberbatch had counselling sessions with him on several occasions, and one of the assistant managers also had a chat with Cook Starr-Nolan. It appears that those conversations were, at least in part, a response to the Appellant's pleas for help in relation to what was occurring in the kitchen.
In cross-examination, Mr Dyson agreed that it had been brought to his attention that Cook Starr-Nolan had long smokos and restroom sessions. However, Mr Dyson said that he had not observed that the Appellant was overloaded with kitchen duties, prompting requests for help.
Head Chef Cumberbatch gave evidence that there were "many situations" when he and Venue Manager Dyson (and sometimes other management) had to reprimand Cook Starr-Nolan about such matters as turning up late for work, not doing his job properly, general kitchen safety issues, his use of the telephone and his attitude in the kitchen. Mr Cumberbatch did not involve the Appellant when dealing with such issues because what he was doing in his role as head chef was "irrelevant to anybody… who it doesn't concern."
Following those attempts to address the issues, Cook Starr-Nolan "had his good days and he had his bad. At some stages there he tried to improve his work commitments." Apparently he had "a lot of ongoing issues outside of work with his private life" which, Mr Cumberbatch suggested, could explain why he was late for work on occasions.
Appellant's submissions: The Appellant submits that the combination of kitchen incidents and unresolved kitchen issues were responsible for an overload of work contributing to additional work-related stressors, as the Appellant had to fill-in for others and do extra kitchen duties. Also, whilst working with untrained kitchen staff over a period of time there was a build-up of work-related stress. In particular, the Appellant submits in relation to Cook Starr-Nolan that there were issues about kitchen safety, his attitude and his lateness for work (or not turning up for work, calling in sick) which were a distraction in the kitchen, and he had no real interest in cooking, was covered with tattoos, and his tattoo clients came to the workplace.
The Appellant submits that, despite his pleas for help from assistant managers and the venue manager, he was denied help from venue management and that ALH key management forced him to confront significant kitchen issues without management support. That was responsible for the build-up of work related stressors. Although he requested help from Venue Manager Dyson, there was no help from management in relation to kitchen issues (especially reflecting on health and safety). He was handicapped by Cook Starr-Nolan's kitchen performance and stated that he could not do all the work by himself.
The Appellant acknowledged, however, that Head Chef Cumberbatch and Venue Manager Dyson had reprimanded Cook Starr-Nolan, and that Cook Starr-Nolan and Cook Beck's kitchen issues were addressed with Venue Manager Dyson and managers.
Respondent's submissions: The Respondent submits that the effect of these stressors is that:
(a)the Appellant was subject to an additional workload because Cook Starr-Nolan was slacking off and not doing his job properly; and
(b)the Appellant made numerous requests for assistance regarding the lack of performance by Cook Starr-Nolan, but nothing was done to assist him.
The Respondent submits that, although the Appellant repeatedly asserted that unresolved kitchen issues were responsible for an overload of work contributing to additional work-related stressors, that contention is not made out on the evidence. Indeed it has never really been clarified how the Appellant was overloaded with work. The Respondent submits that the Commission should reject that contention.
The Respondent notes that the Appellant had interpersonal issues with Cook Starr-Nolan and, after a period, had similar interpersonal issues in working with Cook Beck (see Stressor 10). Almost immediately upon Mr Speak starting as head chef, the Appellant was critical of him and their working relationship appeared to be a "rocky one" (see Stressors 8 and 9). The Respondent describes the Appellant as the common denominator in each scenario, and suggests (consistently with Mr Drane's evidence) that the Appellant was raising issues to deflect attention from his own performance.
The Respondent submits that, although the evidence establishes that there was a drop in performance by Cook Starr-Nolan in early 2013, there was also a drop in the Appellant's performance in the context of an increasingly problematic working relationship between the two men where both parties appear to have been at fault.
The Respondent submits that it has not been established on the evidence (other than by the broadest of allegations) how the alleged drop in performance by Cook Starr-Nolan necessarily impacted upon the Appellant to cause him additional work and to cause him stress. Equally, there is no evidence of the Appellant raising any concerns about him being stressed by the actions of Cook Starr-Nolan. Nor is there any evidence of the Appellant making a contemporaneous report to a medical practitioner of the onset of any symptoms brought about by the actions of Cook Starr-Nolan. The Appellant failed to report the onset of symptoms arising from these events, which are some time in the past from his decompensation in January 2014. Rather, the Appellant told Dr Bhat that he only had an onset of symptoms in November 2013. Accordingly, the Respondent submits, these stressors can be safely put to one side as not having caused the Appellant's condition.
In the alternative, the Respondent submits that, contrary to the Appellant's assertion that management failed to act on his complaints/concerns, the evidence establishes that Head Chef Cumberbatch, Venue Manager Dyson, Mr Magnon and other managerial staff members tried to address the performance issues of Cook Starr-Nolan (and Cook Beck). Indeed, the Appellant gave evidence that he raised his concerns with Head Chef Cumberbatch who told him that he was taking steps to address them. The Appellant agreed that there would be an improvement in Cook Starr-Nolan's attitude and performance for a period then he would slack off again.
In the Respondent's submission, those actions constitute reasonable management action taken by the employer in response to the concerns that were raised by the Appellant about the work performance of his co-workers. The fact that the interventions attempted by management were not successful in having Cook Starr-Nolan permanently lift his performance does not mean that management did not act reasonably.[55]
[55] See Bowers v WorkCover Queensland (2002) 170 QGIC 1, 2 (Hall P); see also Elizabeth Miller v Q-COMP (C/2009/20).
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."
Evidence: The Appellant agreed that when the head chef was away from work, he and the cook would operate the kitchen. During the two week period when Head Chef Cumberbatch was on leave, the Appellant was alleging that Cook Starr-Nolan was not pulling his weight and the cook was alleging that the Appellant was not pulling his weight. The Appellant agreed that there was such a breakdown in the way that he and Cook Starr-Nolan were functioning as a team that the kitchen was not operating properly. He did not agree that there was a distinct drop in his performance at that time, however agreed that on occasions he was late to work, as was the cook.
The Appellant recalled an incident, possibly on a Wednesday, early in March 2013 while Head Chef Cumberbatch was on leave. After the lunch service, but before taking his afternoon break, a staff member in the gaming area asked him about gaming snacks.[56] They were supposed to provide deep fried snacks in the afternoon. Cook Starr-Nolan left at 2.30 pm, and everything in the kitchen was turned off. The Appellant said that he offered to prepare the snacks but was told not to worry about it.
[56] The Appellant described the different types of snack food (including sandwiches and deep fried snacks) that are served to patrons while they are playing poker machines.
The Appellant also said that (apart from the drip trays, grill and stove tops) everything in the kitchen was clean. He did not agree that the surfaces in the kitchen were dirty or that the fridges and cool room were left in a poor state. Indeed, he stated that he always cleaned the kitchen before he left and was the last one that finished. However, he agreed that his performance that day (in the way he left the kitchen after lunch) was below his usual standards.
The Appellant had been on his post-lunch break from about 2.50 pm and returned at 5.00 pm, half an hour before the next meal service began. Mr Dyson spoke to him and Cook Starr-Nolan in the kitchen, and said that the drip trays were not cleaned and the gaming snacks were not sent out. Mr Dyson said that he had got into trouble with Area Manager Dan Drane that afternoon. Mr Drane had inspected the kitchen, pulled out the drip trays, opened the fridges and entered the cold room. He had, in effect, had a go at Mr Dyson about the state of the kitchen. Mr Dyson gave a direction that the kitchen was to be cleaned (which they did after the dinner service before going home). He spoke "in a loud voice, but not … enough to hear patrons and staff member to hear in the kitchen." Mr Dyson then walked away, said in a loud voice "You two sort your shit out" and went home.
The Appellant recalled saying "Oh my God" loudly, putting the tongs on the sink, and shaking his head. He denied using abusive language in the kitchen immediately after the meeting with Mr Dyson, or making derogatory comments about Mr Dyson and his girlfriend.
The Appellant agreed that, on the day in issue, Cook Starr-Nolan had arrived late for his shift and that, although both of them were responsible for ensuring that gaming snacks were prepared in the morning and afternoon, the gaming snacks had not been made by either the cook or the Appellant after the lunch service.
The Appellant referred to Cook Starr-Nolan as "a cook that wasn't qualified," who did not have "the care factor of basically running the kitchen." By comparison, the Appellant was "basically making sure the kitchen was running fine as a business." He agreed that the head chef had the responsibility for running the kitchen, and that he felt comfortable with Head Chef Cumberbatch with whom he had trained and worked previously.
The Area Manager, Mr Drane, gave evidence that he would visit the Captain Cook Tavern weekly during 2013. Some of the visits were announced and he would have a one-on-one conversation with the hotel manager about the venue's performance. On other visits he would walk through all parts of the business and review the different departments, and would walk through the kitchen and related rooms to assess its level of compliance with food safety and other matters. He would make comment to Venue Manager Dyson as to the standard of each of those areas any concerns he might have.
[100]Mr Drane recalled an occasion after the lunch service where he found the kitchen was left "in a state that was unacceptable in terms of food safety and cleanliness." Food was left uncovered, the stove was on, there were dirty dishes on the benches, the char grill was dirty, the kitchen was untidy and food was uncovered in the cool room. There was no one in the kitchen. Mr Drane said that both cooks on that shift (Starr-Nolan and the Appellant) "should have left the kitchen in a satisfactory condition. That's the requirement." In particular, all food should be wrapped and stored in its correct area; any pots, pans and dishes that had not been cleaned were at least to be left soaking, completely submerged in water; and the kitchen should have been cleaned and tidy and left in a sanitary condition. On that occasion, the state of the kitchen was "completely unacceptable." Although Cook Starr-Nolan had worked at the Captain Cook Tavern longer than the Appellant, the Appellant as a qualified chef had more experience and knowledge of the kitchen than a cook. Accordingly, Mr Drane seemed to suggest that the Appellant could have instructed Cook Starr-Nolan about kitchen cleanliness.
[101]That was not the only occasion on which he saw the kitchen in a mess. He estimated it would have been more than three times over a period of three to four months.
[102]Mr Drane described it as a "very serious" issue. He said that ALH takes food safety "very seriously." It is "dealing with people's health," and is concerned that if the kitchen is left in a poor state of repair, food could spoil and be produced and people would get sick. It also attracts vermin and cockroaches if not cleaned and left in a satisfactory and sanitary condition. ALH is under a lot of scrutiny from the regulator, and there are financial risks if things are left to spoil. Mr Drane recalled that, on that occasion, he was "very stern" in his way of dealing with the situation. He needed action to take place directly with the people responsible. If there was no satisfactory response there would have been some sort of disciplinary action. He made it clear that the Venue Manager was responsible and accountable for those matters within the venue. Mr Drane subsequently became aware that Mr Dyson had addressed those concerns with the relevant staff members, including the Appellant. He recalled being involved in a disciplinary meeting with Mr Dyson, the Appellant and Mr Kuenstner Snr. Although he could not recall the details, Mr Drane said that there probably would have been consultations between himself and others within ALH before the Appellant received a written warning.
[103]Mr Dyson gave evidence that his area manager, Mr Drane, would conduct inspections of the Captain Cook Tavern "quite regularly," "on average probably fortnightly." He recalled one occasion when Mr Drane saw the kitchen after a lunch service. Mr Dyson described the state of the kitchen as "a disgrace." "Nothing was cleaned. It was just very substandard." Food was left out, and there was an issue about the cold room. Neither the Appellant nor Cook Starr-Nolan were present in the kitchen during the inspection, presumably being on the usual break after lunch. As a consequence of finding the kitchen in that state, Mr Drane told Mr Dyson to speak to the Appellant and Cook Starr-Nolan at the commencement of the dinner service and explain to them what was found. Usually Mr Dyson would have passed the information to Head Chef Cumberbatch to deal with his staff. However, as the head chef was on holidays, Mr Dyson had to do so.
[104]Around at that time, Cook Starr-Nolan was periodically late for work, and the Appellant was occasionally late. Mr Dyson said that there was quite a decline in Cook Starr-Nolan's performance over a couple of months. Mr Dyson gave evidence that, on that particular day, Cook Starr-Nolan had arrived between 30 and 60 minutes late for work (with no telephone call, no reason given and not in uniform) and that both Cook Starr-Nolan and the Appellant had failed to cook snacks for the gaming patrons before leaving after the lunch service. When a staff member asked them about the gaming snacks she was told the fryers were turned off.
[105]That evening, Mr Dyson spoke to them about the cleanliness of the kitchen, the fact that gaming snacks had not been cooked that day, Cook Starr-Nolan's tardiness that day and his lack of a uniform. As he progressed, Mr Dyson raised his voice, becoming firm but not loud. He also spoke to them briefly about how they had been interacting with each other. At the end of the meeting, Mr Dyson told them to "Sort your shit out." He said that because both the Appellant and Cook Starr-Nolan had come to him behind each other's back complaining about the other, and accusing each other of things that were or were not being done in the kitchen environment.
[106]The incident occurred in the kitchen. No patrons were present in the kitchen when he made that statement.
[107]Having been told of the Appellant's reaction to that discussion, Mr Dyson passed the information to Mr Drane who had a management session with Mr Dyson, the Appellant and Mr Kuenstner Snr. As a result of that meeting, Mr Dyson received a verbal warning for the way he spoke to the staff when he raised his voice and swore. The Appellant also received a verbal warning.
[108]Appellant's submissions: In relation to the incident in March 2013, the Appellant submits that:
(a)he offered to stay back, turn the stoves on and cook the gaming snacks but the manager told him not to worry about it;
(b)during the lunch break, everything was clean with the exception of the drip trays and stove tops;
(c)he was not guilty of any kitchen wrongdoings.
[109]In the Appellant's submission, because he had no involvement in that kitchen issue, it was Mr Dyson's responsibility to address those kitchen issues with Cook Starr-Nolan in his office. Mr Dyson confirmed that the Appellant had raised kitchen issues in regard to Cook Starr-Nolan. Mr Dyson also confirmed that Cook Starr-Nolan had multiple private issues and failed to perform proper kitchen duties. He described the gaming snacks out of context.
[110]Consequently, when Mr Dyson shouted "You two sort your shit out in this kitchen," that "shouted verbal abuse" was "hurtful, setting a trigger for work related stress inflicted by the Venue Manager." In the Appellant's submission, that was another issue adding toward his work-related stressors.
[111]The Appellant notes that Mr Dyson acknowledged that he received a verbal warning for his conduct, specifically in relation to the way he spoke to those staff.
[112]Respondent's submissions: As the Respondent observes, there was no real controversy about what occurred. The evidence of the Appellant and other witnesses was to the same effect. The Respondent submits that there should also be no controversy that a verbal reprimand was at the minimum warranted in all the circumstances of the case. In particular:
(a)it was not unreasonable for management to expect that the Appellant and Cook Starr-Nolan should have been able to successfully manage to be kitchen operations while Head Chef Cumberbatch was on leave;
(b)in the period leading up to the subject day there had been allegation and counter allegation by the Appellant and Cook Starr-Nolan that the other was not pulling their weight;
(c)there were occasions when the Appellant and Cook Starr-Nolan was late for work;
(d)on the day in question, Cook Starr-Nolan was approximately 30 to 60 minutes late for his shift;
(e)the gaming stacks were not made after the lunch service;
(f)the grills and drip trays were left in a dirty state;
(g)there had been a breakdown in the way that the Appellant and Cook Starr-Nolan were functioning as a team, and as a consequence the kitchen was not operating properly; and
(h)the manner in which the kitchen had been left that day was well below the standards that the Appellant set for himself.
[113]In light of that evidence, the Respondent submits that it was not only appropriate but entirely necessary that both the Appellant and Cook Starr-Nolan received a verbal dressing down. Mr Dyson addressed his reprimand to both men equally. He addressed them in the kitchen with no other staff present and hence took care not to humiliate them in front of other staff members. Mr Dyson spoke to them in an assertive voice which was entirely warranted given the substantial concerns about the respective performances. What was done constituted reasonable management action taken by Mr Dyson.
[114]The Respondent also notes that there is no evidence before the Commission that any patrons heard, or could have heard, the discussion between Mr Dyson, the Appellant and Cook Starr-Nolan.
[115]Although Mr Dyson told the Appellant and Cook Starr-Nolan "to sort their shit out," that comment could be seen to be fairly mild in the circumstances. At worst, the Respondent submits, it would constitute a blemish that would not make otherwise reasonable management action unreasonable. Consequently, the Respondent submits that there has been reasonable management action taken in a reasonable way in relation to Stressors 3 and 4.
[116]The Respondent also notes that, after receiving the rebuke from Mr Dyson, the Appellant acted and spoke inappropriately. As a consequence, he was called to a meeting with Mr Drane in which those allegations were addressed with him, and both the Appellant and Mr Dyson received a warning. Once again, the Respondent submits, the action taken was reasonable management action because the Appellant was not treated arbitrarily and both he and Mr Dyson received the same punishment.
[117]Consideration: On the basis of the evidence summarised above, I find that, while Head Chef Cumberbatch was on leave in March 2013:
(a)the Appellant and Cook Starr-Nolan were operating the kitchen at the Tavern;
(b)at that time, the Appellant was more experienced and had more knowledge of the kitchen than Cook Starr-Nolan;
(c)there was a breakdown in the way the two men were functioning as a team, and the kitchen was not operating properly;
(d)each man alleged that the other was not pulling his weight, and there was some drop in the Appellant's performance;
(e)on the day in question, Cook Starr-Nolan was late to work without a telephone call or reason given, and he was not in uniform;
(f)on the day in question, neither the Appellant nor Cook Starr-Nolan prepared gaming snacks after the lunch service and they left the kitchen in an unsatisfactory state, well below the required standards (and those which the Appellant espoused);
(g)while the Appellant and Cook Starr-Nolan were away from the kitchen on their post-lunch break, Area Manager Drane inspected the kitchen and found it completely unacceptable for a range of reasons, including by reference to health standards;
(h)that was not the first or only occasion on which he saw the kitchen in a mess during the course of his periodic inspections of the Captain Cook Tavern while the Appellant worked there;
(i)later on the day in question, at the direction of Area Manager Drane, Venue Manager Dyson spoke with both the Appellant and Cook Starr-Nolan about the cleanliness of the kitchen, the fact that gaming snacks had not been cooked that day, and Cook Starr-Nolan's tardiness and his lack of uniform;
(j)it was appropriate that Mr Dyson speak to both men together and that he reprimand each of them in relation to matters for which they were responsible;
(k)in the course of that conversation, Mr Dyson spoke to them briefly about how they had been interacting with each other;
(l)Mr Dyson's voice became raised during the conversation and he concluded by telling them to "Sort your shit out;"
(m)that exchange took place in the kitchen, no patrons were present when he made that statement and there was no evidence that any patrons elsewhere could have heard what was said;
(n)after that conversation, and apparently after Mr Dyson left the kitchen, the Appellant responded loudly and placed (possibly threw) his tongs in the sink;
(o)subsequently both Mr Dyson and the Appellant received a verbal warning for their behaviour.
[118]I am satisfied that:
(a) Area Manager Drane did not "target" the Appellant;
(b) the action taken by Mr Dyson (at Mr Drane's request and in the absence of Head Chef Cumberbatch) was reasonable management action; and
(c) Mr Dyson's final statement, although intemperate, has to be considered in the context of the actions and behaviours he was addressing and, at worst, it could be characterised as a blemish on reasonable management action taken in a reasonable way.
[119]Consequently, I am satisfied that Stressors 3 and 4 were partially proven.
Stressors 5 and 6
[120]Stressor 5: "That after forwarding a written complained to Head Office Melbourne Area Manager Dane Drane was required to sort issues with Chef Julio, that meeting took place in late February 2013, subject; non-appointment to Sou Chef position. The meeting lasted for 13-15 minutes only, there was no mention regarding the issue of Chef Julio's Sou Chef position."
[121]Stressor 6: "That a letter received from Jenny Wregg Human Resources stated that Area Manager Dane Drane discussed the Sou chef position with Chef Julio for 1 hour. Subsequent to the reply from Human Resources Manager Jenny Wregg, Ashley Harris ALH Investigator checked Chef Julio's time line on CCTV, confirming Area Manager Dane Drane misleads Melbourne Head Office. In August 2013, at mediation prior Head Chef Cranston's transfer to the North Lakes Tavern Venue Manager Ben Dyson was informed by head chef 'Cranston' - a Sou Chef was needed."
[122]Evidence: According to the Appellant, he transferred from the Warner Tavern to the Captain Cook Tavern because they needed a sous chef in late 2012, around the time he had qualified as a commis chef. The Appellant said that the assistant manager at the time (a woman named Lisa) asked if anyone wanted to be the sous chef there. He understood that the previous sous chef was Joshua Stanley, although "he wasn't a qualified chef." He had not met Mr Stanley. In cross-examination, the Appellant recalled that the head chef would have said that Mr Stanley was his sous chef, and that the head chef told him that the person was not a qualified chef but was "just a cook."
(d) On 6 March 2014, the Appellant saw Dr Davidson and asked for a new certificate. It was another "long" consultation and she reported that the Appellant was "Much the same clinically. Problems relating to work, not home life." No treatment was provided or medication prescribed.
(e) The Appellant saw Dr Davidson on 1 April 2014 for the purpose of obtaining a mental health care plan ("MHCP") and a chat. She recorded:
"Several months history of low mood and anxiety symptoms triggered by alleged bullying and discrimination at work which resulted in him leaving his job as a chef. Currently not working.
Now has problems going out due to anxiety and worry about who he may see. Fearful to go out of the house alone and usually accompanied by father or sister for this. Gets panicked thinking about this. Poor sleep. Occasional flashbacks to events with ?panic attacks. Feelings of hopelessness and depression. Low self esteem. Ruminations of previous events.
…. Investigation by Company ongoing. Several people have been fired as a result he tells me."[74]
[74] The Respondent notes that this was an embellished or exaggerated statement. The only person who was fired was Mr Dyson and that was not as a consequence of any investigation into the dealings with the Appellant, but as a consequence of the Appellant's complaint.
Dr Davidson recorded a private conversation with the Appellant (i.e. without Mr Kuenstner Snr, who was present at all other consultations). His girlfriend was 38 weeks pregnant, and the Appellant told Dr Davidson "he is excited about becoming a father."
Dr Davidson also noted: "Requests to see a psychologist. Referral done on MHCP."[75] She wrote a letter in relation to mental health assessment and a mental health plan. In her oral evidence, Dr Davison explained that by that stage, given the symptoms he was experiencing, the Appellant would definitely qualify for the MHCP.
[75] The referral was to Ms Jo Erlich, a psychologist, who did not give evidence in these proceedings.
(f) The Appellant consulted Dr Davidson on 10 April 2014 in relation to stress. They had a "long" discussion in relation to the ongoing investigation and an updated WorkCover certificate was prepared. Dr Davidson noted that a baby girl was born on 3 April. She continued "Happy about this and showing pictures. Congratulated. States dad struggling to accept situation but no other concerns re their relationship."
In her oral evidence, Dr Davidson stated that the Appellant was referring to concerns about the relationship with his father. The Appellant did not ever provide her with a history of there being problems with his girlfriend, and Dr Davidson did not recall ever talking to him about problems in that relationship.
(g) The Appellant again consulted Dr Davidson on 8 May 2014 in relation to stress and a medical certificate. She recorded:
"Ongoing stress through work related events.
Dad explains ongoing investigation by company.
Overall improvement in anxiety. Has 'panic-like' episodes when comes across someone from his work but functioning reasonably well otherwise.
Little social support however, outwith immediate family.
Has been playing soccer but states this is by himself. Encouraged to exercise.
Still seeing a psychologist.
Worsening advice given."
He was scheduled for review on 12 June 2014 or sooner if needed.
[466]In her oral evidence, Dr Davidson confirmed that, if she accepted the following facts:
(a)the Appellant was transferred at his request from the Captain Cook Tavern where he alleged he had been bullied and discriminated against in the week before Christmas 2013;
(b)thereafter he had no contact with his former management, or anyone from that workplace;
(c)he was ultimately transferred to the Petrie Tavern;
(d)the only contact with the previous workplace was that Ms Johnson (Mr Dyson's partner) worked there, but she was transferred from the venue on 20 January 2014,
it would be unusual (though not impossible) for the Appellant's condition to develop some two months down the track. Rather, Dr Davidson would have expected it to be an ongoing kind of issue. She assumed however, that there might be some follow on from moving between premises within the same company.
[467]In her oral evidence, Dr Davidson confirmed what she had recorded in her consultation notes, namely that Mr Kuenstner Snr had been present at each consultation (other than the private session with the Appellant during the consultation on 1 April 2014) and had played an active role in those consultations. Her consultation notes record that "Dad did much of the talking" on 28 January 2014, and "Julio did more talking" on 11 February 2014. On 6 March 2014 she described Mr Kuenstner Snr as a "forceful character," by which she explained in oral evidence, she meant that he was quite a strong character in getting his point across in both his manners and the descriptions he gave. At the consultation on 8 May 2014 she recorded "Dad explains ongoing investigation by company."
[468]Dr Bhat's evidence: Dr Bhat, who saw the Appellant from 19 May 2014, said the Appellant had seen him for "anxiety symptoms from work-related stress caused by an incident that happened at work in November 2013" when he reported about the smelly chicken to his manager. The Appellant reported that since then he "felt that he was bullied at work and that's what led to his mental health symptoms." Dr Bhat's evidence was that the Appellant did not indicate to him any other events before November 2013 that caused him concern. The Appellant told Dr Bhat subsequently that there was bullying at work and that his concerns were not listened to and "this led to the anxiety symptoms." Dr Bhat noted that the Appellant already had those symptoms when he started seeing him. Dr Bhat indicated that he had seen the Appellant's about 25 times in the period from 17 May 2014 to 28 May 2015, but the Appellant had not provided him with any particulars as to what treatment he had received at his workplace after the smelly chicken incident. In cross-examination, Dr Bhat agreed to the suggestion that the history provided to him was of a very broad brush allegation of bullying subsequent to the incident on November 2013.
[469]Dr Bhat's consultation notes had not been exhibited when he gave his oral evidence. It is apparent from the patient history from the Lawnton Country Market Medical Centre that were tendered subsequently (Exhibit 21) that the majority of the consultations involved the Appellant coming to obtain further medical certificates.
[470]On 30 June 2014, the Appellant requested a review of the MHCP and a new referral as advised by his psychologist so that he could obtain six more sessions of counselling, which he found helpful. The reason for visit was recorded as "Anxiety disorder." Among other things a letter was written to psychologist, Ms Jo Erlich, about the MHCP review. Consultation notes for subsequent visits record the reasons for those visits as "stress" (11 and 21 July 2014), "Anxiety disorder" (8 August 2014), and "adjustment disorder with anxiety" (29 August 2014).
[471]Dr Bhat gave evidence that Mr Kuentsner Snr used to attend most of the consultations with the Appellant and that both father and son did an equal amount of talking. Dr Bhat would ask questions of the Appellant which he answered, and his father "contributed to some of the worries that he had." Dr Bhat's notes show that Mr Kuentsner Snr attended on at least five of the six occasions when Dr Bhat saw the Appellant between 19 May 2014 and 29 August 2014 (approximately the time the Appellant saw Dr Matheson).
[472]Dr Matheson's evidence: The relevant passages from Dr Matheson's report of 11 August 2014 (Exhibit 13) should also be considered against the background outlined above. It is clear from her report and her oral evidence that Dr Matheson relied on the history of events related to her by the Appellant (see [436]). Dr Matheson wrote that:
(a) the Appellant recalled that he began to experience work-related stress in late 2012 when he was transferred to the Captain Cook Tavern;
(b) the Appellant reported that he began to experience symptoms of anxiety in January 2013, shortly after commencing work at the Captain Cook Hotel (and he described anticipatory anxiety prior to work shifts and increased social withdrawal; he began to ruminate excessively about work-related issues and suffered frequent headaches; and his sleep deteriorated somewhat);
(c) the Appellant described increasing anxiety symptoms throughout 2013 in the context of conflict with co-workers at the Captain Cook Tavern;
(d) the Appellant's mental state deteriorated further from November 2013 with increasing anxiety symptoms (and a further reduction in hours of sleep per night, significantly diminished appetite with associated weight loss, and becoming more socially withdrawn, finding it increasingly difficult to concentrate), but he denied any significant symptoms of pervasively depressed mood;
(e) the Appellant ceased to work on 27 January 2014 "in the context of work related stress;" and
(f) the Appellant went on stress leave on 28 January 2014.
[473]Appellant's submissions: The Appellant's written submissions did not address this issue directly. However, as noted earlier, the Appellant contends that his symptoms commenced soon after his transfer to the Captain Cook Tavern, and at least by February 2013.
[474]Respondent's submissions: The Respondent submits that:
(a)the Commission would reject the Appellant's evidence that he had begun to experience symptoms in either December 2012 or early 2013; and
(b)the Commission would find on the evidence that the Appellant did not experience any significant symptoms before November 2013 and began to experience some mild anxiety in December 2013 in the context of him being the subject of a disciplinary process but these mild symptoms did not amount to a psychiatric injury until well into April 2014.
Because the Appellant's injury was sustained after October 2013, he has to prove that his employment was the major significant contributing factor to his injury.
[475]In support of the first limb of that submission, the Respondent submits that:
(a)the Appellant did not provide any evidence of experiencing anxiety in January 2013, despite being given every opportunity to do so;
(b)the Appellant provided clearly inconsistent versions as to when he experienced an onset of symptoms;
(c)the Appellant's evidence of an early onset of symptoms (including in his history provided to Dr Matheson) was very unconvincing;
(d)there was no contemporaneous report by the Appellant either to a medical practitioner or anyone else (whether at the workplace or outside it) that he was experiencing symptoms in December 2012 or 2013, and no evidence of any treatment being provided to him in 2013;
(e)the early onset of symptoms is inconsistent with what the Appellant said in his application for compensation form (Exhibit 12); and
(f)the early onset of symptoms is inconsistent with the history that the Appellant provided to Dr Bhat and Dr Davidson.
[476]In support of the second limb of that submission, the Respondent submits that:
(a)the stressors or factors that the Appellant consistently identified to Dr Davidson and Dr Matheson as the alleged causes for his psychiatric injury were the events that occurred from November 2013 to January 2014;
(b)Dr Matheson confirmed that if the sous chef issue was stressor at all it was a very minor one, that the Appellant had not given any specific history of an onset of symptoms following being reprimanded by Mr Dyson in March/April 2013, that the Appellant reported that his symptoms fluctuated throughout 2013 but significantly worsened after November 2013, and that the disciplinary procedure definitely caused the Appellant's increasing distress;
(c)the Appellant has not reported to any medical practitioner that events prior to November 2013 have caused his injury;
(d)the Injured Worker Statement Form (Exhibit 12) states that the injury occurred in November 2013 and because the Appellant was "framed by the now dismissed Capt Cook management and his close friends" which could only sensibly be interpreted as referring to the investigation and disciplinary process;
(e)the first mention of stress in the correspondence referred to in the Injured Worker Statement Form (i.e. Exhibit 4) could only be interpreted as an assertion by the Appellant that the build-up of stress occurred in December 2013/January 2014 as a consequence of events in November and the investigation and disciplinary process in December 2013.
Was the Appellant's injury work-related?
[477]As noted earlier in these reasons for decision, the Appellant bears the onus of proving on the balance of probabilities that:
(a)he suffered an injury that arose out of, or in the course of, his employment;
(b)the employment was either a significant contributing factor to the injury or the major significant contributing factor (depending on the date of the injury); and
(c)his injury did not arise out of, or in the course of reasonable management action taken in a reasonable way.
[478]The legal tests in relation to those aspects of s 32 of the Act are summarised earlier in these reasons.
[479]Appellant's submissions: The Appellant did not make specific submissions in relation to each of those criteria to demonstrate that he suffered an "injury" as defined in s 32. However, he submits that his psychological injuries were:
"in the course of his employment, the proof employment was the major significant contributing factor for the injuries sustained. Furthermore, the court proceedings provided the 'proof ' management actions are the major contributing factor in respect to a build-up of work related stressors …"
[480]He also contends that "reasonable management action was never considered by management." The import of the Appellant's case is apparent from the list of 13 Stressors and his submissions in relation to each of them. They are considered earlier in these reasons for decision.
[481]Respondent's submissions: The Respondent made extensive and detailed written submissions in relation to each of the criteria.
[482]Whether injury arose out of or in the course of employment: The Respondent submits, first, that the Appellant has failed to meet his burden of proof to establish that his injury arises out of, or in the course of, his employment because, at its highest, the Appellant's evidence establishes that he may have experienced some stress from the investigation and the disciplinary process. That did not cause him to take any sick leave or to seek any medical treatment until late January 2014, well after the relevant stressors and after he had been removed from the workplace and any of the former co-workers involved in the stressors.
[483]The Respondent points to evidence that indicates that:
(a)despite the Appellant leaving the workplace on or about 27 January 2014, his treating general practitioner, Dr Davidson, was not satisfied at her first three consultations with him over a period of almost two months that the Appellant was suffering from a mental illness, and during that period no treatment was prescribed to him;
(b)at the second consultation on 11 February 2014, Dr Davidson noted an overall improvement in the Appellant's condition as reported by him and that the Appellant's presentation was not that of someone who was anxious or depressed, and she noted no evidence of mental illness and did not believe that the Appellant would qualify for a MHCP at that time;
(c)at the third consultation on 6 March 2014, Dr Davidson noted that the Appellant remained much the same clinically as on 11 February 2014;
(d)Dr Davidson confirmed that the sudden worsening of the Appellant's condition in early April was "unusual", given that he had been away from the workplace for about two months and the alleged stressors took place some three and a half months earlier;
(e)Dr Matheson, who was the only specialist psychiatrist to examine and report on the Appellant, could not confirm (in light of Exhibit 19) that his injury arose out of, or in the course of employment or that his employment was the major significant contributing factor to his injury.
[484]As noted early in these reasons, before expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence. If an expert has been misinformed about the facts, or has taken irrelevant facts into consideration or has omitted to consider relevant facts, their opinion is likely to be of little or no value.[76] It will be apparent that a number of the aspects of the evidence given in this case by some doctors depends on factual circumstances beyond the knowledge of those doctors. In particular, they depended heavily, and perhaps exclusively, on the history of events given to them by the Appellant. The Respondent submits that, to the extent that that history is incorrect, little or no weight should be given to the opinions based on it. (See Respondent's submission paras 126-130)
[76] See e.g. R v Turner [1975] QB 843, 840 (Lawton LJ), Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).
[485]As the Respondent notes, neither Dr Davidson nor Dr Bhat expressed an opinion whether the Appellant's injury arises out of or in the course of his appointment, or whether the Appellant's employment was the major significant contributing factor to his injury or condition. (Respondent's Submission para 131)
[486]The Respondent also submits that, because the Appellant has failed to provide an accurate history of his relationship issues to any of the medical practitioners, their evidence about causation must be given limited weight. (Respondent's Submission para 132) In particular, the Appellant had failed to reveal to any of his treating medical practitioners or to Dr Matheson:
(a)the breakdown of his relationship with his partner, J;
(b)the fact that his father did not approve of that relationship;[77]
[77] But see Dr Davidson's consultation notes of 10 April 2014, Exhibit 21.
(c)J's ongoing denial of the Appellant seeing his newly born daughter;
(d)an increasingly bitter and acrimonious relationship between the Appellant and J which appeared to involve a complete breakdown in communication between them;
(e)some financial stress later in 2014 caused by J's actions in providing information to the Child Support Agency.
[487]However, the Respondent submits that the Commission would accept the revised opinion expressed by Dr Matheson that, although the work-related stressors did seem to be a contributing factor, the conflict with the Appellant's ex-partner and difficulty of access to their daughter was likely to be at least as significant factor in causing his symptoms. Indeed, Dr Matheson went on to opine that it was entirely possible that the relationship issues were in fact the major significant contributing factor giving rise to the Appellant's injury.
[488]The Respondent also submits that the significant and unusual role played by Mr Kuenstner Snr in his adult son's application for workers' compensation is such that the Commission would have concerns whether it is a genuine claim for a work-related injury.
[489]Accordingly, the Respondent submits that the appeal must be dismissed.
[490]Major significant contributing factor: Secondly, the Respondent submits that the Appellant sustained his injury after October 2013 and therefore he must establish that his employment was "the major significant contributing factor" to his condition. In the Respondent's submission, for reasons similar to those set out in the preceding paragraphs, the Commission would not be satisfied on the balance of probabilities that the Appellant's employment was the major significant contributing factor to his injury. In particular, the Respondent submits that:
(a)none of the medical witnesses confirmed that the Appellant's employment was the major significant contributing factor to his injury and, as noted above, Dr Matheson now appears to conclude that personal stressors are the major significant contributing factor to his injury;
(b)based on the medical evidence, the Commission would find that there are only two operative stressors that could be related to work (Stressor 9 - being provided with a notice to attend the meeting on to December 2013, the investigation process, and being the subject of a disciplinary process arising from his conduct, and Stressor 11 - the Facebook post by Gracie Mills, although that was not sufficiently causally linked to the workplace to give rise to a work-related injury);
(c)to the extent that the injury arises from work events, it arises not from the reality of workplace events but from the fact that both the Appellant and Mr Kuenstner Snr have a flawed perception of those events (e.g. that there was some conspiracy involving managers and other employees to have the Appellant sacked, and that the Facebook post from Ms Mills referred to the Appellant and constituted a threat towards him).
[491]Reasonable management action: Third, the Respondent submits that s 32(5) of the Act operates to exclude the Appellant's claim because this is a very clear-cut case of reasonable management taken by ALH in relation to each of the matters that are raised by the Appellant in his Statement of Stressors. In particular, the Respondent submits that:
(a)the actions and alleged inaction of Head Chef Cumberbatch, Venue Manager Dyson and Area Manager Drane (who were in the direct line management structure above the Appellant) would clearly constitute relevant management action for the purpose of s 32(5) of the Act;
(b)the actions of Mr Pyers (in conducting an investigation into the allegations against the Appellant, handling the disciplinary process, and interacting with the Appellant and Mr Kuenstner Snr after the Appellant was issued with a written warning) would constitute relevant management action for the purposes of the Act;
(c)consequently, the Commission would be satisfied on the balance of probabilities that the Appellant's injury arises out of or in the course of management action taken in connection with his employment.
[492]Hence:
(a)if the Commission accepts that Stressors 8, 9 and 13 are the only relevant stressors, then each of those stressors clearly involves reasonable management action taken by ALH; or
(b)if the Commission finds that each of the numbered Stressors must be considered, then each Stressor that can be substantiated and has given rise to stress for the Appellant is touched by some form of reasonable management action.
[493]The Respondent also submits that it was the Appellant's flawed perception after receiving Exhibit 14 that his career was over. More generally, the Respondent submits that the Appellant's entire case is based on a series of flawed perceptions and misunderstandings of what has always been reasonable management action taken by ALH.
[494]Consequently, the Respondent submits, the Commission would be satisfied on the balance of probabilities that s 32(5) of the Act operates to exclude the Appellant's claim.
[495]Consideration: My conclusions in relation to the outcome of the appeal are based not only on the medical evidence just considered but the evidence as a whole. For reasons set out in detail earlier, I have concluded, in summary, that:
(a)Stressors 1 and 2 were only partially proven and that, although management took appropriate actions in response to the Appellant's requests, those actions were not permanently successful;
(b)Stressors 3 and 4 were only partially proven, Area Manager Drane did not "target" the Appellant, and the action taken by Mr Dyson was reasonable management action;
(c)Stressors 5 and 6 were not proven, and management acted reasonably in relation to the Appellant's concerns about the sous chef issue;
(d)Stressor 7 was not proven;
(e)Stressors 8 and 9 were not proven, and ALH management took appropriate action in a reasonable way in relation to the smelly chicken incident and other allegations against the Appellant;
(f)Stressor 10 was not proven;
(g)Stressor 11 was not proven;
(h)Stressor 12 was proven in part;
(i)Stressor 13 was proven but Ms Wregg's letter constituted reasonable management action taken in a reasonable way, and ALH management took reasonable management action in a reasonable way in relation to the communications from the Appellant and Mr Kuenstner Snr that preceded Ms Wregg's letter;
(j)the relationship between the Appellant and J broke-up in May 2014.
[496]That summary gives only the barest outline of what might lead to the outcome of the appeal. The specified Stressors were somewhat awkwardly worded, and to reach the correct conclusion on the appeal it is necessary to:
(a)take into account the evidence and specific findings in relation to those Stressors;
(b)take into account the medical and other evidence considered following the consideration of the Stressors; and
(c)make a global assessment of management actions taken by ALH managers in relation to the circumstances described or alleged across the range of stressors.
[497]Having regard to the evidence as a whole, I find that:
(a)the Appellant experienced various degrees of concern in relation to actions and perceived slights in the work place from around February 2013 when it was made clear to him that he was not a sous chef, but that and other interactions with fellow workers were of little or no significance to what became his psychiatric or psychological disorder;[78]
[78] Accordingly, Stressors 1 to 7, and 10, can be put to one side.
(b)the Appellant first experienced significant symptoms of anxiety and distress in November and December 2013 in response to the investigation following the smelly chicken incident and the subsequent disciplinary actions (about that incident and other matters)[79] including the warning letter;
[79] Stressors 8 and 9.
(c)the Appellant did not accept the basis on which he was disciplined and, having made allegations about Venue Manager Ben Dyson which led to Mr Dyson’s dismissal, became concerned that he was being shunned, isolated or criticised by others in the workplace;
(d)his concerns were increased by his perception of the Facebook post by Ms Mills on 14 December 2013,[80] the comment made to him by Mr Renikki at the Petrie Hotel in January 2014[81] and Mr Wregg's letter dated 21 January 2014;[82]
[80] Stressor 11.
[81] Stressor 12.
[82] Stressor 13.
(e)all these events and interactions occurred after October 2013;
(f)the Appellant's level of anxiety was reduced when he left work on sick leave from 28 January 2014 and, although he was not depressed at that stage and his symptoms fluctuated over successive weeks, his condition was such that he qualified for a Mental Health Care Plan by 1 April 2014;
(g)most of the significant contributing factors to his condition of Adjustment Disorder with Anxiety arose out of, or in the course of, his employment;
(h)one factor, the Facebook post, although created by a work colleague was not strictly speaking a work-related Stressor;
(i)the major significant contributing factor to the Appellant's psychiatric or psychological disorder was the action taken by management in relation to:
-his conduct in the smelly chicken incident and other aspects of his behaviour in the workplace which were investigated and for which he was given a written warning (and in respect of which he and Mr Kuenstner Snr engaged in persistent communications with senior ALH management); and
-subsequent communications culminating in Ms Wregg's letter dated 21 January 2014;
(j)the comment by Mr Renikki was a contributing factor to the Appellant's condition but the Appellant misperceived the context in which it was made.
[498]Those findings about which events did (or did not) contribute to the Appellant's injury are supported by:
(a)the Appellant's statements in Injured Worker Statement Form, and the written communications with his employer referred to in that Form;
(b)the Appellant highlighting to Dr Davidson the smelly chicken incident, the disciplinary proceedings that followed it, and Facebook messages;
(c)the Appellant not telling Dr Bhat that any events before the smelly chicken incident in November 2013 caused him concern;
(d)the Appellant's statements to Dr Matheson that his symptoms became significantly worse from November 2013 and that the disciplinary procedure in December 2013 caused increasing distress (i.e. his illness did not start but became worse around November 2013);
(e)Dr Matheson's assessment that the Appellant's mental state deteriorated further from November 2013 with increasing anxiety symptoms and other significant and specific symptoms.
[499]Dr Davidson's consultation notes and her oral evidence demonstrate that:
(a)before and after the MCHP the symptoms experienced by the Appellant were work-related (as she put it, "all his anxieties were so caught up in work");
(b)for a period of at least, his health improved when away from the workplace;
(c)by 1 April 2013, given the symptoms he was experiencing, the Appellant definitely qualified for a MHCP.
[500]I accept Dr Davidson's opinion that the Appellant's condition could develop some two months down the track (given that he had moved premises within the same company) and Dr Matheson's opinion that this could be an example of the often significant delay in someone accessing treatment after the onset of psychological symptoms (particularly if the person has not experienced mental illness difficulties previously) because it can take several months for them to realise that their experience is not normal human emotion or stress.
[501]The findings are made on the balance of probabilities. They are the most favourable that the Appellant could reasonably expect having regard to the evidence as a whole, particularly given the inconsistent and at times misleading statements he made to some of the people who gave evidence in these proceedings.
[502]However those findings do not result in the appeal succeeding. As is clear from the detailed consideration of the relevant stressors, I am readily satisfied that the actions taken by ALH management in relation to the Appellant's behaviour and subsequent communications (including the offer of counselling) constituted reasonable management action taken in a reasonable way. To that extent, s 32(5)(a) of the Act applies and the Appellant's psychiatric or psychological disorder is withdrawn from the definition of "injury" in s 32(1).
[503]Another provision of the Act is relevant. It is apparent from some of the listed Stressors that not only does the Appellant criticise specific management actions (or management's failure to take action), he also alleges that certain managers acted with improper motivation or intent towards him. In particular, he alleges that he was "targeted" by Mr Drane (Stressor 4), he was "targeted" by Mr Drane and Mr Dyson for dismissal (Stressor 7), he was "wrongfully accused" of undermining Head Chef Speak (Stressor 8), he was "framed with false allegations" and "concocted evidence was produced" by Mr Dyson with the support of Mr Pyers, and they arranged a "trumped up investigation" claiming he undermined Head Chef Speak (Stressor 9). More broadly, the Appellant alleges that the specified incidents (plus many more) caused a build-up of work related psychological injuries "deliberately manufactured by ALH management with the intent to create a reason to dismiss" him.
[504]On the basis of the evidence given to the Commission and for the reasons given earlier, I am not satisfied that any of those contentions about the motivation or intention of ALH management or individual managers is supported let alone proved. It is the reality of the employer's conduct, and not the Appellant's perception of it, that must be taken into account. Consequently, to the extent that he experienced symptoms of stress and anxiety because of such a misperception of the management actions taken against him and the motivations of ALH managers, his appeal must fail by operation of s 32(5)(b) of the Act.
[505]Finally, to the extent that he misconstrued a relatively innocuous event or interaction (e.g. Stressor 12) his claim cannot succeed.
Conclusions and Orders
[506]Having regard to the evidence and for the reasons set out above, I find that:
(a)the Appellant sustained an injury in the form of a psychiatric or psychological disorder which is an Adjustment Disorder with Anxiety;
(b)his injury occurred in response to events in relation to his employment between late November 2013 and late January 2014;
(c)his injury arose out of his employment;
(d)his employment was the major significant contributing factor to his injury;
(e)the Appellant's injury arose out of:
- reasonable management action taken in a reasonable way in connection with his employment; and
- his perception of reasonable management action being taken against him.
Consequently, the Appellant's injury is excluded from the definition of "injury" in s 32(1) of the Act and the appeal cannot succeed.
[507]In light of those findings:
(a)the appeal is dismissed;
(b)the decision of the Respondent is confirmed;
(c)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.
[508]I order accordingly.
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