Linke v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 181

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Linke v Simon Blackwood (Workers' Compensation

Regulator) [2014] QIRC 181

PARTIES:

Linke, Deborah

(Appellant)

v

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO:

WC/2014/145

PROCEEDING:

Appeal

against

decision

of

the

Workers'

Compensation Regulator

DELIVERED ON:

6 November 2014

HEARING DATES:

25, 26, 27 and 28 August 2014

MEMBER:

Industrial Commissioner Neate

ORDERS:

1. The appeal is dismissed.

2.	The decision of the Workers' Compensation Regulator dated 31 March 2014 is confirmed.
3.	The Appellant pay the Regulator's costs of and incidental to this appeal as agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - Psychological injury - dispute between workers at workplace - alleged bullying and harassment - whether that behaviour caused injury - whether injury arose out of, or in the course of, employment - whether employment was a significant contributing factor to the injury - whether injury arose out of, or in course of, reasonable management in connection with workers employment - appellant bears onus of proof

CASES:

Avis v WorkCover Queensland (2000) 165 QGIG 788 Bowers v WorkCover Queensland (2002) 170 QGIG 1

Commonwealth of Australia v Lyon (1979) 24 ALR
300

Coombes v Q-Comp (2007) 186 QGIG 680

Croning v Workers' Compensation Board of

Queensland (1997) 156 QGIG 100
Davis v Blackwood [2014] ICQ 009
Delaney v Q-COMP (2005) 178 QGIG 197

Dickinson v The Motor Vehicle Insurance Trust

(1987) 163 CLR 500
Federal Broom Co Pty Ltd v Semlitch (1964) 110
CLR 626

Graham Douglas Sergeant v Q-COMP (C/2010/52) -

Decision
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR
473
Kavanagh v The Commonwealth (1960) 103 CLR
547
Lackey v WorkCover Queensland (2000) 165 QGIG
22
Luxton v Q-Comp (2009) 190 QGIG 4

Newberry v Suncorp Metway Insurance Limited

[2006] 1 Qd R 519
Prizeman v Q-COMP (2005) 18 QGIG 481
Qantas Airways Limited v QComp (2006) 181 QGIG
301

Qantas Airways Limited v Q-COMP and Blanch

(2009) 191 QGIG 115
Q-COMP v Glen Rowe (2009) 191 QGIG 67
Q-COMP v Green (2008) 189 QGIG 747
Q-COMP v Hohn (2008) 187 QGIG 139

Rossmuller v Q-COMP (C/2009/36) - decision

State Government Insurance Commission v Stephens

Brothers Pty Ltd (1984) 154 CLR 552

State of Queensland (Queensland Health) v QComp

and Beverley Coyne (2003) 172 QGIG 1447

Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision

Versace v Braun (2005) 178 QGIG 315

WorkCover Queensland v Curragh Queensland

Mining Pty Ltd (2002) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Ms L. Willson, Counsel instructed by Shine
Lawyers.
Mr C. Clark, Counsel directly instructed by the
Respondent

Decision

[1]      This is an appeal by Deborah Leanne Linke ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the Respondent") in a letter dated 31 March 2014 rejecting her application for compensation. The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
Brief history of the claim
[2]      At all material times the Appellant worked for Smiths Snackfood Company Ltd (the snackfood operating division of PepsiCo Australia and New Zealand) ("the company") as a casual packer, mostly in the Multipack department where small packages of chips are packaged. Employees work on different pieces of machinery including the six-pack and Lewis machines. Staff in the Multipack department have different roles and rotate periodically through a shift.
[3]      Heather Erwin works in the Multipack department. She is a machine operator, and was trained to do some high duty activities. Although she and the Appellant were at the same level of employment, Ms Erwin had some control over other workers, or gave guidance to them, in their work in the packing of packets of chips, telling them when to do or stop doing things such as tipping into the six-pack machine and how some rotations occurred. The Appellant was not a machine operator. The Appellant claims that, after a period of conflict with Ms Erwin, she suffered a psychiatric/psychological injury.
[4]     On 17 September 2013, the Appellant lodged an application with WorkCover Queensland for compensation for a psychiatric/psychological injury that she stated was caused by the interaction with Ms Erwin and the decisions of workplace management in connection with managing this dispute. On 20 November 2013, WorkCover made a decision to reject the application for compensation on the basis that the Appellant's psychiatric/psychological injury arose out of reasonable management action, taken in a reasonable way, in connection with her employment. The Appellant sought review of that decision.
[5] In a decision of 27 March 2014 and sent to the Appellant's solicitors by letter dated 31 March 2014, the Review Unit of the Respondent confirmed the decision of WorkCover to reject the Appellant's application for compensation in accordance with s 32(5) of the Act. It is that decision against which the appeal was made to the Commission.
Appellant's stressors
[6]      Before the hearing of the appeal, and in accordance with the Further Directions Order dated 16 May 2014, the Appellant provided a statement of stressors (Exhibit 1). That statement was reduced and revised before, and at the start of, the hearing. The hearing was conducted by reference to the remaining seven stressors (numbered 1, 3-8). They are a combination of statements about the alleged types of behaviour of Ms Erwin towards the Appellant and specific incidents which the Appellant said resulted in the Appellant's injury, and which culminated in her attempting suicide on 19 July 2013.
[7]      Given the way evidence was adduced and the case was conducted, it is not necessary to quote the stressors in full. However, it is appropriate to paraphrase them.

Stressor 1 is indicative of the others. It is, in summary, that between August 2012 and 19 July 2013, Ms Erwin:

(a) would often stare at the Appellant aggressively across the Multipack room, in a manner that was intimidating;
(b) would ignore the Appellant, but spoke and cooperated with other workers in the Multipack department;
(c) would speak in a condescending manner to the Appellant and would refuse to assist the Appellant when she required assistance;
(d) would ignore the Appellant when the Appellant asked her about work issues;
(e) spoke to the Appellant in an aggressive manner;
(f) would make snide and sarcastic remarks to the Appellant in front of co- workers; and
(g) would criticise the Appellant's work performance in front of other staff.

Stressor 3 states that, following an alleged incident in August 2011 (which Ms Erwin denies occurred), Ms Erwin began to exclude and ignore the Appellant at work. On 28 August 2012, the Appellant wrote to her employer and complained about the way she was being treated by Ms Erwin. An investigation and mediation took place in September 2012.
Stressor 4 alleges that, in January and early February 2013, Ms Erwin continued to bully the Appellant who sought treatment from her general practitioner. The Appellant was required to take a week off work due to the stress caused by Ms Erwin. On her return to work, the Appellant advised Kylie Milton of Human Resources ("HR") that she had been on stress leave due to Ms Erwin's continued bullying. The Appellant was advised that she was not entitled to stress leave and that the leave would be unpaid. The Appellant is unaware of any management action following her notification that Ms Erwin's actions had caused her to take a week of sick leave due to stress.

[11]   Stressor 5 describes a "very negative culture" and "unpleasant time" in the Multipack department throughout February 2013, after the Appellant's return to work. The employer engaged someone to attempt to improve the culture in the department and to suggest improvements.
[12]   Stressor 6 refers to further alleged behaviour of Ms Erwin toward the Appellant, and an alleged lack of supervision of Multipack workers. On 2 July 2013, the Appellant made a third formal complaint about Ms Erwin's behaviour and advised management. The Appellant is unaware of any action taken as a result of this complaint.
[13]   Stressor 7 alleges that Ms Erwin began spreading rumours about the Appellant's friend and co-worker Karen Egan, based on information the Appellant had shared with another co-worker, which caused conflict between the Appellant and her co- workers. On 16 July 2013, the Appellant complained to management. The Appellant is unaware of any action taken as a result of this complaint.
[14]   Stressor 8 alleges that, on 17 July 2013, the Appellant was transferred to the Multipack department where Ms Erwin was based, and Ms Erwin spoke to the Appellant in a loud and aggressive voice, with a vindictive and nasty tone, in front of their co-workers. The Appellant became physically upset, removed herself from the Multipack room and began to hyperventilate and suffer from an asthma attack. She complained to her department manager about Ms Erwin and asked to be allowed to go home. Instead, she was told by her manager to work in the Cereals department for the remainder of the day. The stressor notes that on 19 July 2013 the Appellant attempted suicide and states that was "as a result of" Ms Erwin's "constant bullying."
Legal requirements and onus of proof
[15] The appeal has to be decided by reference to s 32 of the Act which, at the time material to the Appellant's notice of claim for damages, relevantly provided:

"32 Meaning of injury

(1)

An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…

(3) Injury includes the following -

(a) a disease …
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;

(iii) a medical condition if the condition becomes a
personal injury or disease because of the aggravation;

…

(4) For subsection (3)(b) to remove any doubt it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
(5) Despite subsection (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;
…

Examples of actions that may be reasonable management actions taken in a reasonable way -

(a) action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker;
(b) 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."

[16] The appeal proceeded as a hearing de novo. The Appellant carries the onus of
proving on the balance of probabilities that she has an "injury" within the meaning
1

of the Act.
[17] There is no dispute that the Appellant was a "worker" at the relevant dates.
[18] In order for her appeal to succeed, the Appellant must prove that:

(a) she suffered an injury;
(b) the injury arose out of, or in the course of, employment; and
(c) employment was a significant contributing factor to the injury.

[19]    Only if the Appellant is able to satisfy those statutory criteria will it become relevant to consider whether her disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment.
[20]   The nature of the Appellant's injury was not identified precisely. In her opening
address, Ms Willson for the Appellant referred to the Appellant’s claim for
"psychological injury," which she then described as a "depressive episode or an aggravation of a depressive episode." The Appellant's final written submission was expressed in the alternative, namely that she suffered a psychological depressive episode or aggravation of such condition in the lead up to 19 July 2013 when she attempted suicide. Ms Willson added that, in her submission, the medical evidence suggests that it was more an aggravation style injury in that her condition had worsened, been aggravated or accelerated.
[21]   The Respondent essentially conceded that the Appellant suffered an injury in the form of some sort of psychiatric condition (or mental dysfunction) in July 2013. In his closing submissions, Mr Clark for the Respondent referred to the various descriptions of the Appellant's condition contained in the medical records in evidence. These included a clinical note from Dr Tian, the Appellant's general practitioner, on 30 July 2013 that referred to her "chronic depression" (Exhibit 9). Other assessments were made after 19 July 2013, including that the Appellant was
suffering from "Adjustment disorder …mixed anxiety and depression" (Dr Varghese
on 25 July 2013, Exhibit 18), "Adjustment Disorder with depressive features" (Dr Keulder on 28 August 2013, Exhibit 19) and "depression or anxiety" (Ms Tracey Clarke on 29 August 2013).
[22]   Given the concession made by the Respondent, it is not necessary to give a more precise description of the Appellant's injury at this stage. However, such a description will be made after the Appellant's medical history, and the range of workplace and other events that preceded her decompensation in July 2013, are considered.
[23]    The key issue in this case was whether the injury "arose out of, or in the course of, employment" and whether the employment was "a significant contributing factor to the injury."
[24]    There is oral and documentary evidence in relation to the Appellant's work and other circumstances for the period August 2012 to July 2013. Most of the medical evidence comprises records of consultations and diagnoses after 19 July 2013, i.e. outside the period relevant to the Appellant's decompensation but potentially significant in determining both the Appellant's mental health before 19 July 2013 and the factors that contributed to or caused her injury.
[25]   Because that part of the medical evidence derived from consultations after 19 July 2013 has to be considered with some care for the purposes of this appeal, it is appropriate to commence with other evidence, including:

(a) evidence about the relationship between the Appellant and Ms Erwin, aspects of the Appellant's medical history and family circumstances, and the Appellant's partial deafness; and
(b) evidence (including contemporaneous documents) about events in the period August 2012 to July 2013.

[26]   Relationship between the Appellant and Heather Erwin: Central to the resolution of this appeal is the nature of the relationship between the Appellant and Ms Erwin. Consequently, it is appropriate to describe the length of their association; how, when and in what circumstances the relationship changed from being a friendship; and the impact of the subsequent conflict between them on their interactions in the workplace.
[27]   Detailed information about their relationship was given in oral evidence by the Appellant and Ms Erwin. That evidence was supplemented by the observations of their co-workers and supervisors, expressed in oral and documentary evidence. In essence, the evidence establishes that the two women met at work. They became friends at and outside work in about 2009. They socialised regularly outside work, and would visit each other in their homes, including for meals or birthday parties. They went to dinner and movies together. A fairly deep, close, personal relationship developed between the two women outside work. The Appellant confided in Ms Erwin about personal issues, including problems that her husband was experiencing, difficulties the Appellant was experiencing in her marriage as well as good aspects of their relationship, and the welfare of the Appellant's daughter (who apparently had been sexually molested by the Appellant's husband's father). The closeness of the relationship was such the women had discussed the Appellant moving into Ms Erwin's home if the Appellant separated from her husband (although that did not occur). From the vantage point of such a close relationship, Ms Erwin noted that at times the Appellant was not "her bubbly old self," but was "down in the dumps," confused and upset, moving from being happy one minute to sad the next.
[28]    On or about the weekend of 18 or 19 November 2011, the two women were due to go to the movies together. By the Appellant's account, her daughter was supposed to take her and Ms Erwin out but when neither mother nor daughter wanted to go, the Appellant sent a text message and Ms Erwin replied by text: "That's okay. I'm used to being disappointed." However, according to Ms Erwin, she sent a text to the Appellant to ask if she was coming and the reply was "NO," which Ms Erwin interpreted as the Appellant either being angry or yelling. Ms Erwin gave evidence that she sent a text reply to say that, if she had upset the Appellant in any way, she apologised. If the Appellant did not want to be friends with her that was OK, and Ms Erwin wished the Appellant all the best in the future in whatever she chose to do.
[29]   Although the Appellant and Ms Erwin agreed that they had a positive relationship until about 18 or 19 November 2011, and that the friendship ended at the time of the text message, they did not agree as to what caused the rift. Ms Erwin gave evidence that she had never been given a reason why the friendship ended and was still "in the dark" about it, an observation she had made to Ms Milton on 31 August 2012 (see Exhibit 10).
[30]   However, according to the Appellant, in August 2011 while they were still friends, Ms Erwin had asked her to sabotage the six-pack machine in a particular way so that another worker would be unable to beat Ms Erwin's record quota. Everything was fine with their relationship until Ms Erwin's request, "Then I started to realise what she was really like." Ms Erwin denied any such conversation with the Appellant. When cross-examined, Ms Erwin said that she did not ask the Appellant to sabotage the six-pack machine and would not do so even as a joke as she would not "muck around with a machine or my job." She also noted that, although the alleged conversation was in August 2011, the two women were still talking until November 2011, some three months later. Indeed, Ms Erwin recalled being at the Appellant's house in September 2011.
[31]   In cross-examination, the Appellant denied that she had decided to terminate the friendship. Her evidence was that she and Ms Erwin had "a personal relationship"
which broke down, and when that broke down "so did our work relationship … both
had broken down." When it was put to the Appellant that the breakdown had nothing to do with work but had occurred in her personal life, she stated, "It occurred at work and our personal life."
[32]   Whatever caused its demise, the end of the friendship did not signal a parting of ways in the workplace. At the time when the friendship ended, the two women were working together every day in the Multipack department as co-workers, employed at the same level. The only formal distinctions between them in the workplace were that:

(a) the Appellant was a casual worker and Ms Erwin was permanent; and
(b) Ms Erwin was trained to perform higher duties, in particular to operate different machines in the Multipack department, and the Appellant was not a machine operator.

[33] Those distinctions were relevant to aspects of social interaction in the workplace and the way in which management attempted to deal with conflict between some employees. For example, it appears that there were two "camps" in the workplace - the casuals (who also included Karen Egan and Jason Jerome, two of the Appellant's workplace friends) and the permanents, who the Appellant described as the "in group."
[34] The Appellant gave evidence that she had issues with Ms Erwin in her role as machine operator from at least August 2012 onwards. The alleged incidents are recited in the list of stressors summarised earlier. For immediate purposes, the behaviours described by the Appellant included:

(a) Ms Erwin would not communicate with the Appellant on matters that affected the Appellant's job (as a consequence of which the Appellant felt angry, guilty, and incompetent when things went awry);
(b) on the relatively few occasions when she spoke to the Appellant, Ms Erwin belittled her or spoke down to her, including in front of co- workers;
(c) Ms Erwin gave the Appellant a nasty look, that is, a look of satisfaction or gratitude when she had succeeded in getting to the Appellant;
(d) Ms Erwin would watch or stare at the Appellant; and
(e) Ms Erwin would stand with her back to the Appellant and whisper things to other co-workers.

[35]    According to the Appellant, she was intimidated and bullied by Ms Erwin every day. She characterised herself as a victim. Although she volunteered that "I wouldn't totally say that I am an innocent party," the Appellant rejected any suggestion that she instigated any of the behaviour. In cross-examination in relation to Exhibit 11, the Appellant said she did not think that she treated Ms Erwin unfairly but rather "I was always polite to Heather." The Appellant said that she never tried to "set up" Ms Erwin.
[36]    Mr Jerome and Ms Egan, gave evidence about behaviour exhibited by Ms Erwin to the Appellant. The strained nature of the relationship was illustrated by Mr Jerome, who said there were "almost too many [unfriendly incidents] to really be recalling" but listed specific incidents of derogatory name calling and other demeaning statements, as well as staring, by Ms Erwin. He also recalled that Ms Erwin would never speak to the Appellant directly.
[37]   Ms Egan also gave evidence that Ms Erwin would either ignore the Appellant or speak to her in a tone that was different from the tone she used for everyone else and which suggested that the Appellant was "an idiot." Ms Egan gave evidence that the Multipack room could be loud and sometimes one had to look around the room to be aware of the surroundings and what was happening. She recalled Ms Erwin staring at the Appellant with a smirk on her face, and speaking disparagingly to others about her. Ms Egan recalled the Appellant complaining to her, sometimes every day in a week, about Ms Erwin's behaviour and how she interfered with how the Appellant was doing her job. On occasions, Ms Egan accompanied the Appellant when she made complaints to Ms Milton about Ms Erwin.
[38]   The alleged behaviour of Ms Erwin in the workplace, was not said to be directed only at the Appellant. Ms Egan gave evidence that Ms Erwin "would bounce
between picking on Deb [Ms Linke] and then picking on me … Interfering with the
way I did my job." Ms Egan had made complaints about Ms Erwin to Ms Milton. That evidence has to be assessed in light of the oral evidence of Ms Egan and Ms Erwin that each disliked the other.
[39]   In her evidence, Ms Erwin denied that she stared at the Appellant, spoke to her aggressively or in a demeaning or belittling way, or made fun of the Appellant by calling her names.
[40]    Ms Erwin also denied that she ignored the Appellant and did not communicate with her about work matters, Ms Erwin explained that as the operator of the Multipack machine she had to monitor the other three people (such as the Appellant) to make sure that the system works, e.g. that packets are fed in correctly and that there are no rejects. She confirmed that she did not speak to the Appellant directly, but explained that she did not single anyone out. Rather she would address the three people as a group.
[41]    According to Ms Erwin there was no communication between her and the Appellant unless it was a work-related matter "so we didn't speak to each other at all" on other matters. She described the situation (after the mediation between them in September 2012) in the following terms:
"We have to work together, but I made it perfectly clear that I will only communicate with Deborah Linke if it was a work-related matter. I didn't want to know what she did outside work and I didn't want her to know what I did outside work. Work is work. That is it."

[42]   Ms Erwin gave evidence that, following that mediation, the Appellant isolated herself and they only spoke to each other regarding work. She described the Appellant's attitude to her in the workplace as "stand offish," in the sense that the Appellant was not happy to be told what to do by the machine operator.
[43]    Much of the evidence about the work-based aspects of the relationship between the Appellant and Ms Erwin was provided orally by Ms Milton and in meeting records, which she prepared in relation to meetings with each of the women as they raised with her complaints about the other. Although some witnesses disputed or could not recall some passages in those meeting records, I accept them as generally accurate contemporaneous summaries of those meetings. That evidence is outlined and considered elsewhere in these reasons. For immediate purposes, I note that Ms Milton gave oral evidence that "Ms Linke has an issue with Heather," and referred to "the obvious conflict or disharmony with each other."
[44]   Appellant's medical history and family circumstances: The Appellant indicated that she had been suffering from chronic depression from when she found out that her father-in-law is a paedophile. Indeed, in 2011 she had tried to commit suicide in response to the sexual molestation of her daughter. The Appellant said that she was depressed at the time she wrote her letter to management on 28 August 2012 (Exhibit 2), and indicated that she was contemplating suicide in August 2012 but had not mentioned that to others.
[45]   As noted earlier, one matter that was discussed by the Appellant and Ms Erwin in the period of their friendship was the difficulties of the relationship between the Appellant and her husband. There had been discussions about the Appellant moving into Ms Erwin's home if the Appellant separated from her husband. The Appellant said that she and her husband "have always had marital problems" but they work through them.
[46]   The strain on the marital relationship was apparently compounded by financial difficulties, particularly when the Appellant's husband was out of work.
[47]    There is also evidence that her relationship problems at work exacerbated strains on her family relationships. The Appellant said that she noticed changes in her mood into 2013. She was always upset and yelling at her family. Her relationships with her husband and daughter started to go downhill as she would talk to them about what happened at work. They got sick of listening to her and told her to do something about it. The Appellant said that she had raised issues with HR but, in the absence of feedback about those complaints, she felt like everything was falling on deaf ears and HR was not listening. She felt worthless, and her relationships with her husband and daughter started to go downhill.
[48]   Appellant's partial deafness: It is relevant to note the Appellant's partial deafness when assessing some of the stressors, and the Appellant's reaction to the alleged actions by Ms Erwin. Her medical records (Exhibit 9) show that, at least as early as October 2011, the Appellant was experiencing hearing loss with tinnitus. Even in the quiet acoustic of a Commission hearing room, with no human or mechanical background noise, the Appellant said that she sometimes found it hard to hear what she was being asked because she is partially deaf in both ears (with one being worse than the other).
[49]   One of the Appellant's complaints was that Ms Erwin made a comment about deaf people, which the Appellant took to heart. The Appellant also gave evidence that the workplace was noisy, and she (and apparently other co-workers) wore ear plugs or some hearing protection to diminish the noise of machinery. Consequently, "there were lots of times I couldn't hear anyone." Indeed the Appellant said that, even if she was not partially deaf, it was most likely that she would have had difficulty hearing conversations around the workplace because of the noise. Although she could not hear what was said, the Appellant complained that Ms Erwin stood with her back to the Appellant and would whisper things to other co-workers while they were on the six-pack machine. On at least one other occasion, the Appellant tried to lip read what was said.
An overview of circumstances and events from August 2012 until July 2013
[50]    It is apparent that from the breakdown of the close friendship between the Appellant and Ms Erwin in November 2011, there was antipathy between the two women which was demonstrated by the way they interacted in the workplace, and there was no interaction between them outside the workplace.
[51]   In an unaddressed letter dated 28 August 2012 (Exhibit 2), the Appellant listed various issues in the workplace that she wanted to be addressed and resolved. It is worth quoting the letter in full:
"My name is Deborah Linke, I am a casual at Smiths Snackfoods in Multipack on day crew. I have issues that I would like to be addressed and resolved as soon as possible. These issues concern my fellow co-worker Heather Iian Erwin.
I am finding it very difficult and stressful to come to work because of her bullying and constant mind games. She refuses to communicate with me on work related issues and fails to lend a hand when she works with me. I find her not to be an active team player, rude and nasty.
Before I left to have my surgery, Dana came up to me and told me that everything had been resolved. They haven't, if anything, it has increased.
I am not the only multipack team member that has issues with her. We have put in complaints but nothing seems to have been resolved.
It is little things that she says and does that no-one else seems to hear or see, but in all honesty I can tell you that I am down to my last teather and am at the point that I may say or do something that I 'will' regret. After all, "everyone has a breaking point."
I was under the assumption that Smiths was an anti-bullying workplace, and feel that I am being let down. I have, up to this point enjoyed working for this company, but because of one person I find it almost unbearable to come to work. She to me and other co-workers is a 'bully' and would like to see a positive outcome on this unfortunate situation.
Yours Sincerely
Deborah Linke"

[52] The contents of the letter are clear. The Appellant expanded on it in her oral evidence. In summary, the evidence was that:

(a)

Ms Erwin's poor behaviour in the workplace was in relation to work tasks (e.g. changing the roster, refusing to communicate or assist the Appellant) and the Appellant (staring at her, belittling her in front of co- workers);

(b)

there had apparently been complaints previously and the Appellant was told by one of the managers that the matters had been resolved;

(c)

the alleged behaviour of Ms Erwin was adversely affecting the Appellant and her attitude toward coming to work (the Appellant said that she had been constantly harassed and had a breaking point because "a person can only put up with so much"); and

(d)

the Appellant was drawing the behaviour complained of to the attention of management and asking that action be taken to resolve the issue of bullying.

[53] Although the letter was not addressed to any named person, there was evidence from the Appellant that she gave a copy of it to Ms Milton, Gavin Devine and Bevan Hodson.
[54] The response of management was prompt. On 29 August 2012, the Appellant met with Mr Devine (production manager), Ms Milton (senior HR advisor) and Bevan Hodson (team co-ordinator). Ms Milton made a detailed written record of the meeting (Exhibit 3) and, in her oral evidence, the Appellant agreed that it reflected the conversation, although she did not recall making all of the statements attributed to her. In light of how the Respondent's case is put, it is useful to quote all the substantive parts of the meeting record. I note that the abbreviations refer to named persons as follows: KM = Kylie Milton, DL = the Appellant, HI (sic) = Heather Erwin, GD = Gavin Devine.
"KM opened the meeting confirming that they were meeting today to discuss
her complaint and offered DL a support person. DL declined.
DL stated that HI and her use to be best friends but they had a falling out over a personal matter around xmas last year.
DL stated that since then it feels like she is being bullied by HI. KM asked
DL if she could provide examples to describe why she feels this way.
DL stated that HI ignores her and doesn't talk to her the way she does to others. She also doesn't help her/act like a team player. She also makes comments under her breath which is hard to hear but that DL feels are demeaning. KM asked DL if she could recall any specific occurrences.
DL stated that there was one time where she asked HI to go and tip. DL said that HI just made a comment under her breath and walked away, ignoring DL. KM asked DL if there was any witnesses to this event, DL said no. She hardly ever treats her badly when anyone else is around.
DL stated that there was a time when HI was operating the six pack machine and she was there packing and it was turned off and she asked HI why and HI just told her its ok and walked off, she didn't even bother to explain. GD asked DL if there was any witnesses to this event, DL stated that Raewyn [Pelling] and Si were on the machine packing with her. DL stated that she went after HI on this occasion to say that HI had spoken to her rudely and HI just responded with 'mind your own business'.
DL stated that there was a time when they were meant to stop filling the hoppers and HI didn't tell her but she knew. DL stated that she had to then empty the hopper which was a waste of time. Its ridiculous.
DL stated that other people don't see how she treats me but I've had enough.
Its like she holds a grudge.
DL stated that Karen Egan who she is close friends with also has issues with HI. KM advised DL that KE needed to raise these concerns herself as raising them on behalf was hearsay. DL agreed.
KM asked DL if she had spoken to HI how this behaviour made her feel. DL stated no were haven't spoken really since we fell out. KM asked DL if she was willing to meet with HI, with GD and KM, in a mediation forum to clear the air and improve the relationship. DL stated yes.
Meeting closed."

[55] On 31 August 2012, Ms Erwin met with Mr Devine, Ms Milton, and Mr Hodson in relation to a complaint raised by the Appellant about Ms Erwin's behaviour. Ms Milton's meeting record (Exhibit 10) shows:

(a) how and when management dealt with the Appellant's complaints;
(b) what complaints were put to Ms Erwin;
(c) what were Ms Erwin's responses to the complaints; and
(d) Ms Erwin's concerns about the Appellant.

[56] With respect to those matters, the meeting record states that:

(a) management met with Ms Erwin within two days of the Appellant
making specific complaints orally about Ms Erwin’s behaviour, and at that meeting secured Ms Erwin’s agreement to participate in a mediation
forum in an attempt to "clear the air and improve the relationship;"

(b)

the complaints concerned three separate incidents (when the Appellant asked Ms Erwin to go and tip; when Ms Erwin was operating the six- pack machine and it was turned off while the Appellant was packing; and when Ms Erwin did not tell the Appellant to stop filling the hoppers);

(c)

Ms Erwin’s initial response to the Appellant making a complaint was "That’s typical, she hates me and wants me to lose my job. I’m so over
this." Ms Erwin gave a specific response or explanation in respect of the allegations against her concerning each of the three separate incidents. Ms Erwin stated that she did not speak with the Appellant in this same way as she spoke to others in the team because she was "scared of it ending in an argument." Ms Erwin was "over the tension" and wanted it to stop; and

(d) Ms Erwin suggested that, ever since the Appellant and she had fallen out (for reasons which Ms Erwin said she did not know), the Appellant had been "ganging up against her" with people such as Karen Egan. Although the Appellant had raised a complaint against her, Ms Erwin stated that she should be raising a complaint against the Appellant.

[57] On 31 August 2012, Raewyn Pelling met with Mr Devine and Ms Milton because, on 29 August 2012, the Appellant had nominated Ms Pelling as a witness to one of the alleged incidents. It is apparent from the meeting record (Exhibit 11) that Ms Pelling:

(a) stated that the Appellant and Ms Erwin did not like each other, they make their dislike clear to each other and, where possible, they will not speak to each other (although they had been best friends but had a falling out);
(b) stated that the Appellant and Ms Erwin each has a group of friends who do not like each other;
(c) said that the disagreement "makes it hard … makes life hard sometimes
in the team;"

(d) recalled and gave her version of an incident where she was packing at the six-pack machine with the Appellant and another employee, and Ms Erwin was operating - which ended with the Appellant and Ms Erwin exchanging words, Ms Erwin walking away and the Appellant following Ms Erwin and they appeared to be arguing; and
(e) suggested that the two women needed to be sat down and have this sorted out "as it is affecting everyone" and they were "as bad as each other."

[58] On 4 September 2012, a mediation conference for the Appellant and Ms Erwin was convened by Ms Milton, who also wrote a meeting report (Exhibit 12). According to the meeting report, the Appellant outlined how Ms Erwin had upset her and gave examples. She stated that ultimately the issues came down to communication or the lack thereof, including with other team members. Ms Erwin stated that she understood that there was a communication breakdown and that as a result she was scared to speak to the Appellant in case further issues arose. She stated that her behaviour could give someone the impression that she was avoiding and ignoring them. After discussion about the means for dealing with any future objections, the women agreed to:

(a) communicate effectively;
(b) be sensitive to others’ feelings; and
(c) state objections to the other person (in a respectful manner).

Ms Milton advised that she would be following up in the succeeding weeks to ensure that both women were following through with these actions.
[59] Although aspects of the mediation conference may have been tense, Ms Milton gave oral evidence that the meeting ended positively. Both women had commented that they had not realised how much the lack of communication or teamwork was affecting the other and they needed to move on. She spoke with each of them (at one week and four weeks after the mediation) and "things had calmed right down and they were working well together." By Ms Milton's account, "they were still not friendly, but they were professional and they were working the way they needed to, which was all they need to do in the workplace." According to Ms Erwin, the Appellant isolated herself and did not try to speak to Ms Erwin other than in relation to work matters.

[60]   The Appellant gave oral evidence that she was satisfied with the results of the mediation in September 2012, and that she and Ms Erwin were going "to try to get along," to communicate with each other on work related issues and treat each other with respect. Not only was agreement reached, Ms Erwin subsequently helped the Appellant on machines such as the Lewis, and would tell her if a changeover on the six-pack was required. Apparently, such communication and assistance had not been given previously. The Appellant said that Ms Milton followed up by asking her how things were going with Ms Erwin. At that stage, according to the Appellant "they were going good."
[61]    Although the mediation falls within the period covered by the Appellant's case, and is referred to in Stressor 3, the Appellant's final submission states that she does not complain that this was causative to her injury. Rather, she submits, what occurred was reasonable management action and her injury clearly did not arise out of this.
[62]   The positive change lasted for about three months before, according to the Appellant, Ms Erwin "went back to her usual ways," in the sense that she would not assist the Appellant, would not speak to her on work-related matters or spoke to her in a nasty way.
[63]   On 9 January 2013, the Appellant met with Mr Devine and Ms Milton to outline the Appellant's concerns about Ms Erwin. According to Ms Milton's meeting record (Exhibit 4), the Appellant expressed some concerns about Ms Erwin and said that she had "had enough." In summary the concerns were that:

(a)

Ms Erwin was going home early all the time, and that was not fair for everyone else;

(b)

Ms Erwin had changed the rotation on the six-pack machine and, when the Appellant told her that was wrong, Ms Erwin "just stood there with her hands on her hips, with a smug smile on her face." (The Appellant had then advised a supervisor, Barney, who spoke to Ms Erwin. The Appellant did not overhear the conversation, but said that the supervisor told her that he told Ms Erwin to "pull her head in.")

The Appellant specified concerns about other named workers not doing their job properly, and about other named workers (including Ms Erwin) who the Appellant said were breaching anti-contamination policies. Those issues were expressed in the
context of the Appellant’s assertion that "no one is doing anything" about some of
the issues and her expectation that things would be done to fix the situation. There was a discussion about the extent (if at all) the Appellant had reported them previously to management, and Mr Devine advised the Appellant that they would investigate her concerns and take appropriate action.
[64] In cross-examination, the Appellant agreed that the record was correct and that the matters complained of on that occasion were not bullying or harassment. She surmised that she might not have told HR every time she visited them that Ms Erwin stared at her constantly, or that the meeting record did not include everything that was said.
[65] Also on 9 January 2013, Mr Hodson met with Ms Milton and Mr Devine in relation to one of the complaints because Mr Hodson had been named as a witness to the incident involving the Appellant complaining to him that Ms Erwin had modified
the rotation. Ms Milton’s meeting record (Exhibit 15) stated that Mr Hodson
recalled the Appellant coming to him "all worked up" saying that Ms Erwin was changing the rotation and not rotating the staff on the six-pack machine. Aspects of
the meeting record are relevant to the merit of the Appellant’s complaint and the
response of management to the complaint.

(a)

Mr Hodson said he spoke to Ms Erwin who stated that the rotation had not occurred because there were issues with the machine and the current staff were assisting with support.

(b)

Mr Hodson said that he told Ms Erwin that, if there were issues, she needed to come to him so that so that he could manage the situation. Ms Erwin apologised, said she did not mean to cause any harm, and said she thought she was doing the right thing. Mr Hodson did not believe that Ms Erwin had acted maliciously, so he did not take the matter further. He denied telling Ms Erwin that she should "pull her head in," or that he told the Appellant he had done so.

(c)

Mr Hodson said that Ms Erwin had complained about how the Appellant "was always trying to get her into trouble," and he described how the two women found it "very difficult to work together amicably." He found it difficult to manage them because of their conflict, and tried to separate them fairly where possible. But they need to work as a team and be professional.

(d)

Mr Devine advised Mr Hodson that they would work with him on some strategies to assist and ensure that he had support to manage the situation, and that Mr Devine would attend the next team meeting to outline the expected behaviours from the team.

[66] According to Ms Milton, not only had Mr Hodson said that he could see no issue with the rotation but there was a genuine human error. She described the Multipack room as:
"a very, very large warehouse area with multiple stations where people do
different activities and they rotate. Sometimes those rotations are different.
Sometimes people get confused. There's a lot of people who use casual labour
hire who come in who don't know what they're doing, and it can be confusing
2

at times. So the rotational problems do occur on occasion."

[67] The Appellant gave evidence that she accepted that her complaint was investigated.
[68] A document listing the actions taken in response to the Appellant's complaint of 9 January 2013 (Exhibit 16) includes notations to the effect that:

(a) Mr Devine and Ms Milton met with RP concerning an "unsubstantiated complaint" against Ms Erwin (described as "Possible Vexatious?");
(b) spot audits were conducted on the floor for anti-contamination with various concerns found and addressed, and audits to continue ad hoc;
(c) an investigation into staff going home early showed that team members rotate who goes home early and that Ms Erwin had not gone early more than any other team member;
(d) the Appellant had been advised of the substantiated outcome and the unsubstantiated complaint, and she had been "Educated/Cautioned on raising vexatious complaints" and encouraged to raise concerns in a timely fashion to enable timely identification of non-compliance items on the floor; and
(e) a team meeting would be held within the next month reinforcing expectations within the team and about how to escalate concerns in the first instance.

[69] Ms Milton gave evidence that she discussed these matters with the Appellant, advising the Appellant about the outcomes of the specific complaints (but not about the proposed team meeting).
[70] On 14 January 2013, Ms Milton and Mr Devine held three separate meeting with Ms Erwin, the Appellant and Karen Egan concerning a complaint made by Ms Erwin about the other two women. From separate meeting records prepared by Ms Milton (Exhibits 27, 13 and 24 respectively) the following emerges in relation to the nature of the complaint and the responses to it:

(a)

Ms Erwin stated that the Appellant and Ms Egan were "out to get her and were setting her up and trying to get her sacked," and that Ms Egan had told her that in the work locker room. Ms Erwin said that she had "had enough," was "tired of having to watch my back," felt she was always at HR defending herself from the two women, and wanted "something done."

(b)

When asked if she was aware of any conversations with Ms Erwin regarding setting her up or trying to get her sacked, the Appellant
"laughed and said … whats she said this time," and added that she and
Ms Erwin still had issues personally but that the Appellant tried not to talk to Ms Erwin at work to avoid escalating the issue.

(c) Ms Egan said she had no conversations with Ms Erwin in the locker room in the past week, and did not speak to Ms Erwin unless she had to. When asked whether she told Ms Erwin that she and/or the Appellant were trying to get Ms Erwin sacked, Ms Egan "laughed and said no, why
I would say that. She’ll get herself sacked because she is a bully, I don’t

need to do anything to help her." Ms Egan said that she did not like Ms
Erwin.
(d) Mr Devine reminded the Appellant and Ms Egan, at their respective
meetings, of the company’s policies on bullying, harassment and

victimisation and the expected behaviours. If any concerns arose, either
woman was to report to management immediately.

[71] Although Ms Egan denied making a complaint on 14 January 2013, or having any recollection of the meeting with Ms Milton and Mr Devine on that day as recorded in Exhibit 24, I am satisfied that the meeting record can be relied on.
[72] Ms Milton recalled that Ms Erwin's complaint was not substantiated (because she was unable to confirm that the discussion took place) and that she met with Ms Erwin to advise her of that, and with the Appellant and Ms Egan (as noted above). Ms Milton continued:
"Whilst it wasn't substantiated, we wanted to make it clear to all parties, and
we made the same comment to Heather Irwin (sic), that that sort of behaviour
wasn't appropriate, and that should something like that occur then we will be
3

dealing with it very seriously."

[73] On 8 February 2013, the Appellant consulted her general practitioner, Dr Liping Tian. Although there is no consultation note for the date, there is other evidence that Dr Tian:

(a)

issued a medical certificate (Exhibit 23) stating that he had examined the Appellant on that day and in his opinion she was suffering from a medical condition and was unfit for work from 8 to 15 February 2013 inclusive;

(b)

prescribed Escitalopram (Lexapro), an anti-depressant designed to treat both anxiety and depression (Exhibit 14).

[74]    Dr Tian gave oral evidence in relation to that consultation to the effect that he gave
the Appellant a medical certificate because she felt depressed and he "just let her …

have a rest." It was not, he said, an "industry related dispute" or for workers'
compensation, but was "definitely depression related."
[75]    The Lexapro was supplied on 9 February 2013 (Exhibit 14).
[76]   On Friday 15 February 2013, the Appellant consulted Dr Tian. His notes of that consultation record:
"feel a lot better now
sleep well
less anxious
feel ready to go back to work next week
no remarkable side effects
continue with lexpro [sic]
review in a month time." (Exhibit 9)

The statement about Lexapro suggests that the Appellant was using it and that she experienced no side effects. It is not clear whether that assessment was made on the basis of what the Appellant told Dr Tian on 15 February 2012. That matter is considered later in these reasons.
[77]   According to the Appellant, she took a week off work due to the stress caused by Ms Erwin and, on her return to work, the Appellant advised Ms Milton that she had been on stress leave due to that continued bullying. The Appellant also asserted that she was advised by Ms Milton that WorkCover did not cover stress leave and that the leave would be unpaid or she could use long service leave (an option not available to the Appellant as she had already used her leave entitlements). According to Stressor 4, the Appellant also contends that she is unaware of any management action following her notification that Ms Erwin's actions had caused her to take a week of sick leave due to stress. At the hearing, Ms Milton said she did not recall the Appellant having time off work or a discussion with the Appellant at that time about WorkCover statements. However, she gave evidence that it was not her role to say whether an employee is entitled to WorkCover payments and that is a matter between the employee and WorkCover.
[78]    In February 2013, the company engaged Michelle Yates, one of the company's HR managers from another state, to investigate the claims by Mr Jerome of bullying, harassment and discrimination in the workplace. According to Ms Milton, Ms Yates was engaged because Mr Jerome had referred to Ms Erwin and other employees, and Ms Milton had suggested a wide investigation to find out what was going on in this department, and ascertain whether there was a cultural issue or genuine issues that had not been found during previous investigations. Ms Milton said that she deliberately removed herself from this investigation because she had been involved in so many with these people before, and she wanted to see if Ms Yates could locate information that she had missed. A majority of the complaints investigated by Ms Milton had been unsubstantiated (which, she volunteered, was frustrating for the people involved). She felt that there was potentially a cultural issue within the department, of which Ms Erwin and the Appellant were a part though not necessarily the key.
[79]   The Multipack Tingalpa Investigation Report ("Investigation Report") (Exhibit 26) stated that Ms Yates was asked to independently meet with the Multipack Night shift and Day shift teams to investigate those claims. The agreed approach taken was to conduct an informal investigation and give each employee on the shifts the opportunity to raise "any incident of bullying, harassment or discrimination they had endured or they had witnessed." In addition to Mr Jerome, some 28 employees were listed for interview on 21 or 22 February 2013. They included the Appellant, Ms Erwin, Ms Egan, Ms Pelling, and Mr Hodson. All employees were asked the same questions and their responses were noted and signed as a true and factual statement. Specific incidents or recurring themes would be reported to HR Tingalpa for them to review and action (if any new actions were required).
[80]    I note the potentially wide scope of the investigation and the methodology because:

(a) although the present proceedings are not a response to Mr Jerome's complaints, the investigation touched on matters that are relevant to these proceedings; and
(b) only parts of the Investigation Report are in evidence (as Exhibit 26), with parts of the text (especially relating to Night Shift) having been redacted.

[81] The parts of the Investigation Report directly relevant to the present proceedings state:
"Day shift:
Heather Erwin:

 Some employees raised concerns with Heather Erwin's style and
'abrupt' 'aggressive' approach with people.



Some employees highlighted scenarios when Heather has 'stared' at them excessively to the point that the employees feel unreasonably watched



Some employees reported that Heather can be unhelpful and generally make casuals/new people to the department feel unwelcome (makes comments about them not knowing what they are doing - but doesn't help)



Some employees reported that there is a personal conflict with Debbie Linke and Karen Egan which affects the team, resulting in continuous complaints and disruption to the team.
…
Others (not originally named by JJ):



Karen Egan: A key person named by a few employees as causing disruption with Heather and Debbie. Karen herself had a number of people state that she is very unhelpful, abrupt and generally smart arse



Debbie Linke: Raised by a couple of people as being part of the ongoing issues and displaying similar behaviour to Heather and Karen.
…
Day Shift Summary:

 Different to night shift - it is clear that day shift has an unaddressed/unresolved problem at the moment particularly focussing around Heather Erwin, Karen Egan and Debbie Linke. It focuses mainly on their inability to get along and be able to work comfortably around each other. For Karen and Heather in particular focussed on them being unhelpful to new people/casuals in the department
 Heather, Karen and Debbie all reported each other as displaying the same behaviours that were alleged against them (as in: inappropriately talking to each other, general 'intimidation' through making their work environment difficult - eg: not helping each other, not addressing each other to get the job done, difficulty conveying basic messages about work requirements or rotations) and described as 'bad as each other'. Team members believe that these employees are continuously raising complaints to get each other 'punished', either pushed out of the department or sacked.
 Majority of employees saw that management at times have had many discussions with Heather, Karen and Debbie about how to speak to each other and how they should be able to get along, but majority of employees don't see this working and believe they feel too personal about the situation to change their view.
 Should review how Heather, Karen and Debbie can be separated fairly. As each has at times be [sic] the instigator of tit for tat against the other, it needs to be done in a way that it doesn't start another issue by someone thinking they are being punished and the other/s thinking they have 'won' by getting someone out of the area."

[82]   Those passages are set out in full, not as statements that are necessarily true (a matter which need not be determined) but because they present a picture which is entirely consistent with the impression conveyed by the oral evidence about relationships between those Day Shift workers given by the Appellant, Ms Erwin, Ms Egan, Mr Jerome and Ms Milton, and by other evidence, particularly the various meeting records prepared by Ms Milton.
[83]   Ms Milton gave evidence that she spoke to Ms Yates after the report was provided and, according to Ms Milton, Ms Yates indicated that people could not raise specific instances of what had occurred. That made investigation difficult, and was consistent with Ms Milton's experience that people came to her saying that they did not like a co-worker or could not work in an area. They would be asked for specific incidents to investigate or to nominate a witness to what was alleged. According to Ms Milton, they would say things like "no one ever sees what she does." The person complained about would deny that the incident occurred. It was one person's word against another's and, in the absence of other corroboration, there would be no factual basis to take action. In those circumstances, management would convene team meetings to retrain staff, and re-enforce or "re-baseline" their expectations about the lines they were not to cross and the repercussions of doing so.
[84]    Ms Milton said that she did not discuss with Ms Erwin, the Appellant, or Ms Egan the specific matters about each of them in the Investigation Report but rather raised the issues in a general forum in the next team meeting. According to Ms Milton, they did not "specifically target" individuals because:

(a) "the recommendation was that each were as bad as each other … and we
decided to take an alternative approach to see if we could settle the
interpersonal conflict without needing to take a formal approach;"
(b) the comments that people made, as noted in the report, "didn't necessarily surround specific instances" but described characteristics (like someone being sometimes abrupt) so that they were not "specific occasions to investigate;" and
(c) the report recommended taking team-based options rather than specific individual options.

[85] The actions taken by management following the investigation included changing the rotational roster, change of management practice (so that there was more supervision), training, team meetings, re-baselining the expectations, coaching, referral to the Employees Assistance Program ("EAP") and counselling.
[86] On 11 March 2013, the company conducted Bullying and Harassment training for Day Shift staff. The lead trainer was Ms Milton. The training was attended by 20 employees including the Appellant, Ms Erwin, Ms Egan and Mr Jerome (Exhibit 8).

(a) the response of management; and
(b) in particular (and most importantly) the lack of feedback to the Appellant about what management was going to do to improve her position.

[192] The Appellant submits that, so far as she was concerned, the "causative fact" in relation to the injury was that there was not adequate intervention to the bullying, and critical to this was that the company did not supply necessary feedback to the Appellant. Indeed, it is submitted, it was the failure of the company to properly communicate with the Appellant that is the cause of her injury. Such failure to act in that way in face of repeated and emotional reports could not be seen as reasonable management action and therefore cannot be precluded by s 32(5) of the Act.
[193] As noted earlier, the Appellant submits that the mediation process followed in September 2012 was reasonable management action and her injury clearly did not arise out of this. On the basis that the concerns expressed by the Appellant in August 2012 were addressed and apparently resolved (at least for work related purposes) by that process, and that the positive change lasted for about three months, it might be inferred that the Appellant's criticism of what she submits was an absence of reasonable management action only applies to the period from about January 2013 to July 2013.
[194] The Appellant submits that in the period to 14 February 2013, despite reports of bullying and harassment from the Appellant (sometimes with the support of Ms Egan), Ms Milton did not speak with Ms Erwin about the issues being raised by the Appellant. Yet Ms Milton organised an independent investigation because she was concerned about what was happening in the workplace. Whatever her knowledge before then, the Investigation Report would have informed Ms Milton about behaviour in the workplace. The Appellant further submits that the report together with the ongoing reports of bullying and harassment should have prompted Ms Milton to consider the position of the Appellant in the workplace. However, the actions taken after the Investigation Report were inadequate (e.g. that Ms Erwin was not disciplined) or were going to happen anyway. (As noted earlier, however, Ms Erwin gave evidence that she had been spoken to about aspects of behaviour e.g., being abrupt or aggressive at the workplace.)
[195] In my view, the issue is whether reasonable management action was taken - not whether such management action would have occurred anyway, or whether only the timing of it was adjusted in light of the conflict in the workplace. If the management action is reasonable for general management purposes and could also deal with specific issues (even if that was not its primary purpose) that does not make it any less reasonable management action for the purpose of s 32(5) of the Act.
[196] The Appellant referred to various authorities, including three in support of the
proposition that, when considering the reasonableness of management action,

18

"reasonable" means "reasonable in all the circumstances of the case" and other
19

referring to the "way" management action was taken.
[197] The Respondent submits that the management action was not shown to be unreasonable in its conception and execution, and that the Appellant's claim regarding an absence of feedback in regard to her complaint cannot be sustained.
[198] For s 32(5)(a) to apply, the Commission would need to be satisfied that reasonable management action was taken in a reasonable way by the company in connection with the Appellant's employment. That paragraph has been the subject of close consideration in decisions of the commission and the Industrial Court.

[199] In Lackey v Workcover Queensland,[20] Hall P accepted that:

[20]

"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
21

("Avis").

[200] In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining

22

Pty Ltd, Hall P 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)

[201]He continued by reiterating that it was settled by the decision in Avis[23] that the test
[23]
posited by the words "arising out of" is wider than that provided by the words
24

"caused by."
[202] 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
25

compensable. In a recent decision, Martin P expressed his agreement with the reasoning of in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as
an “injury.”[26]
[26]
[203] The Commission's role is to embark upon the enquiry whether the
psychological/psychiatric injury arose out of, or in the course of, reasonable
27

management action taken in a reasonable way. As Martin P stated recently:
“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.”[28]
[28]
[204]In Prizeman v Q-COMP,[29] Hall P 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."
[29]
[205] For present purposes, it is important to note that the authorities make it clear that
perfection is not required. What is required is that the management action be
reasonable and reasonably taken. Reasonable means reasonable in all the
30

circumstances of the case.

[206] Earlier in these reasons I explained why I was satisfied that:

(a) employees were given reasonable opportunities to raise their concerns and make complaints about others in the workplace;
(b) those specific complaints were investigated in a timely manner;
(c) appropriate courses of action were devised depending on whether the complaints were substantiated; and
(d) management attempted to communicate to the complainant at least aspects of what was to be done, or not done, after the complaint had been investigated.

[207] While it is apparent from the Appellant's evidence that she did not think that she was being heard, there is sufficient other evidence to show that either:

(a) she was informed as appropriate that her complaints had been investigated and were being dealt with (though not with the outcomes she had wanted in relation to complaints that management found were unsubstantiated); or
(b) in relation to her mid-July complaints, there was not an opportunity to inform her of action taken by management before she decompensated.

[208] In retrospect, it might have been preferable for arrangements to have been made to ensure that, so far as practicable, the Appellant and Ms Erwin did not work together. Given that Ms Erwin was permanently based in the Multipack department, that would have resulted in the Appellant working in one or more other departments. There was little evidence about whether that would have been practical or, in general staff management terms, desirable. Such evidence as there was indicated that:

(a)

the Appellant was rotated to other departments as part of the new rotation scheme after the Investigation Report, but (on her and Ms Erwin's accounts) that did not substantially reduce their contact with each other;

(b)

on 17 July 2013, the Appellant was working in another department but returned to the Multipack department because the other department was overstaffed (so, as Ms Milton observed, the change to rosters was never going to stop the women having contact with each other);

(c)

according to Ms Milton, although staff are sometimes not assigned to a particular department for medical reasons (e.g. if they are allergic to nuts) it is not company policy to separate individuals who have personal conflict. Rather, adults need to work through issues from a professional perspective. She allowed, however, that if there was a medical reason for people being separated that would be considered.

[209] The actions of the company might not have been perfect, but management had to act fairly and in the interests of all its employees, including hearing and dealing with the concerns of complainants and acting fairly to those against whom the complaints were made, in circumstances where personal conflicts and alliances were affecting the work place generally and not just the specific individuals named in these proceedings. In any case, as Martin P has stressed, the task of the Commission does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.
[210] Having regard to the policies and procedures published by the company, the approach taken by management to receiving, investigating and dealing with complaints, and the follow-up that was tailored to specific circumstances from time to time, I am satisfied that, if the Appellant's injury arose out of, or in the course of, the way in which management dealt with her complaints, the injury arose out of, or in the course of, reasonable management action taken in a reasonable way.
[211] Consequently, I conclude that if, contrary to my earlier conclusion, employment was a significant contributing factor to the Appellant's injury, then s 32(5)(a) of the Act operates to deprive the Appellant of an entitlement to compensation for that injury.
Conclusion

[212] The appeal is dismissed and the decision of the Respondent is confirmed.

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

[214] Order accordingly.
1

Rossmuller v Q-COMP (C/2009/36) - decision [2]; State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301.

2

Transcript of Proceedings, Linke v Simon Blackwood (Queensland Industrial Relations Commission, WC/2014/145, Industrial Commissioner Neate, 27 August 2014) 41.

3

Transcript of Proceedings, Linke v Simon Blackwood (Queensland Industrial Relations Commission, WC/2014/145, Industrial Commissioner Neate, 27 August 2014) 51.

4
Coombes v Q-Comp (2007) 186 QGIG 680, 681 (Hall P).
5

Transcript of Proceedings, Linke v Simon Blackwood (Queensland Industrial Relations Commission, WC/2014/145, Industrial Commissioner Neate, 27 August 2014) 9.

6
Transcript of Proceedings, Linke v Simon Blackwood (Queensland Industrial Relations Commission, WC/2014/145, Industrial Commissioner Neate, 25 August 2014) 56.

Transcript of Proceedings, Linke v Simon Blackwood (Queensland Industrial Relations Commission, WC/2014/145, Industrial Commissioner Neate, 26 August 2014) 54.

8
Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J).
9

Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); WorkCover Queensland v Curragh

Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).
10
Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision at [3] (Hall P).
11

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, 641.

12

Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P).

See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P).
13

Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision [15] (Hall P).

14

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519.

15

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100, 101.

16

Croning v Workers' Compensation Board of Queensland [1997] 156 QGIG 100.

17

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100, 101.

18

Bowers v WorkCover Queensland (2002) 170 QGIG 1; WorkCover Queensland v Kehl (2002) 170 QGIG

93, 94; Delaney v Q-COMP (2005) 178 QGIG 197.
19

Versace v Braun (2005) 178 QGIG 315.

Lackey v WorkCover Queensland (2000)165 QGIG 22.

21
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.
22

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2002)172 QGIG 6, 6-7.

Avis v WorkCover Queensland (2000) 165 QGIG 788.

24

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2002) 172 QGIG 6 , 7.

25

See Q-COMP v Hohn (2008) 187 QGIG 139, 143; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

Davis v Blackwood [2014] ICQ 009, [51].

27

See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

Davis v Blackwood [2014] ICQ 009, [47].

Prizeman v Q-COMP (2005) 18 QGIG 481.

30

WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.

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Citations

Linke v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 181

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

0

Kavanagh v The Commonwealth [1960] HCA 25

Danvers v Commissioner for Railways (NSW) [1969] HCA 64

(a)	would often stare at the Appellant aggressively across the Multipack room, in a manner that was intimidating;
(b)	would ignore the Appellant, but spoke and cooperated with other workers in the Multipack department;
(c)	would speak in a condescending manner to the Appellant and would refuse to assist the Appellant when she required assistance;
(d)	would ignore the Appellant when the Appellant asked her about work issues;
(e)	spoke to the Appellant in an aggressive manner;
(f)	would make snide and sarcastic remarks to the Appellant in front of co- workers; and
(g)	would criticise the Appellant's work performance in front of other staff.

(a)	reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
…

(a)	action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker;
(b)	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."

(a)	she suffered an injury;
(b)	the injury arose out of, or in the course of, employment; and
(c)	employment was a significant contributing factor to the injury.

(a)	evidence about the relationship between the Appellant and Ms Erwin, aspects of the Appellant's medical history and family circumstances, and the Appellant's partial deafness; and
(b)	evidence (including contemporaneous documents) about events in the period August 2012 to July 2013.

(a)	the Appellant was a casual worker and Ms Erwin was permanent; and
(b)	Ms Erwin was trained to perform higher duties, in particular to operate different machines in the Multipack department, and the Appellant was not a machine operator.

(a)	Ms Erwin would not communicate with the Appellant on matters that affected the Appellant's job (as a consequence of which the Appellant felt angry, guilty, and incompetent when things went awry);
(b)	on the relatively few occasions when she spoke to the Appellant, Ms Erwin belittled her or spoke down to her, including in front of co- workers;
(c)	Ms Erwin gave the Appellant a nasty look, that is, a look of satisfaction or gratitude when she had succeeded in getting to the Appellant;
(d)	Ms Erwin would watch or stare at the Appellant; and
(e)	Ms Erwin would stand with her back to the Appellant and whisper things to other co-workers.

(a)	Ms Erwin's poor behaviour in the workplace was in relation to work tasks (e.g. changing the roster, refusing to communicate or assist the Appellant) and the Appellant (staring at her, belittling her in front of co- workers);
(b)	there had apparently been complaints previously and the Appellant was told by one of the managers that the matters had been resolved;
(c)	the alleged behaviour of Ms Erwin was adversely affecting the Appellant and her attitude toward coming to work (the Appellant said that she had been constantly harassed and had a breaking point because "a person can only put up with so much"); and
(d)	the Appellant was drawing the behaviour complained of to the attention of management and asking that action be taken to resolve the issue of bullying.

(a)	how and when management dealt with the Appellant's complaints;
(b)	what complaints were put to Ms Erwin;
(c)	what were Ms Erwin's responses to the complaints; and
(d)	Ms Erwin's concerns about the Appellant.

(b)	the complaints concerned three separate incidents (when the Appellant asked Ms Erwin to go and tip; when Ms Erwin was operating the six- pack machine and it was turned off while the Appellant was packing; and when Ms Erwin did not tell the Appellant to stop filling the hoppers);
(c)	Ms Erwin’s initial response to the Appellant making a complaint was "That’s typical, she hates me and wants me to lose my job. I’m so over

(a)	stated that the Appellant and Ms Erwin did not like each other, they make their dislike clear to each other and, where possible, they will not speak to each other (although they had been best friends but had a falling out);
(b)	stated that the Appellant and Ms Erwin each has a group of friends who do not like each other;
(c)	said that the disagreement "makes it hard … makes life hard sometimes

(d)	recalled and gave her version of an incident where she was packing at the six-pack machine with the Appellant and another employee, and Ms Erwin was operating - which ended with the Appellant and Ms Erwin exchanging words, Ms Erwin walking away and the Appellant following Ms Erwin and they appeared to be arguing; and
(e)	suggested that the two women needed to be sat down and have this sorted out "as it is affecting everyone" and they were "as bad as each other."

(a)	communicate effectively;
(b)	be sensitive to others’ feelings; and
(c)	state objections to the other person (in a respectful manner).

(a)	Mr Hodson said he spoke to Ms Erwin who stated that the rotation had not occurred because there were issues with the machine and the current staff were assisting with support.
(b)	Mr Hodson said that he told Ms Erwin that, if there were issues, she needed to come to him so that so that he could manage the situation. Ms Erwin apologised, said she did not mean to cause any harm, and said she thought she was doing the right thing. Mr Hodson did not believe that Ms Erwin had acted maliciously, so he did not take the matter further. He denied telling Ms Erwin that she should "pull her head in," or that he told the Appellant he had done so.
(c)	Mr Hodson said that Ms Erwin had complained about how the Appellant "was always trying to get her into trouble," and he described how the two women found it "very difficult to work together amicably." He found it difficult to manage them because of their conflict, and tried to separate them fairly where possible. But they need to work as a team and be professional.
(d)	Mr Devine advised Mr Hodson that they would work with him on some strategies to assist and ensure that he had support to manage the situation, and that Mr Devine would attend the next team meeting to outline the expected behaviours from the team.

(a)	Mr Devine and Ms Milton met with RP concerning an "unsubstantiated complaint" against Ms Erwin (described as "Possible Vexatious?");
(b)	spot audits were conducted on the floor for anti-contamination with various concerns found and addressed, and audits to continue ad hoc;
(c)	an investigation into staff going home early showed that team members rotate who goes home early and that Ms Erwin had not gone early more than any other team member;
(d)	the Appellant had been advised of the substantiated outcome and the unsubstantiated complaint, and she had been "Educated/Cautioned on raising vexatious complaints" and encouraged to raise concerns in a timely fashion to enable timely identification of non-compliance items on the floor; and
(e)	a team meeting would be held within the next month reinforcing expectations within the team and about how to escalate concerns in the first instance.

(a)	Ms Erwin stated that the Appellant and Ms Egan were "out to get her and were setting her up and trying to get her sacked," and that Ms Egan had told her that in the work locker room. Ms Erwin said that she had "had enough," was "tired of having to watch my back," felt she was always at HR defending herself from the two women, and wanted "something done."
(b)	When asked if she was aware of any conversations with Ms Erwin regarding setting her up or trying to get her sacked, the Appellant

need to do anything to help her." Ms Egan said that she did not like Ms Erwin.
(d)	Mr Devine reminded the Appellant and Ms Egan, at their respective

(a)	issued a medical certificate (Exhibit 23) stating that he had examined the Appellant on that day and in his opinion she was suffering from a medical condition and was unfit for work from 8 to 15 February 2013 inclusive;
(b)	prescribed Escitalopram (Lexapro), an anti-depressant designed to treat both anxiety and depression (Exhibit 14).

(a)	although the present proceedings are not a response to Mr Jerome's complaints, the investigation touched on matters that are relevant to these proceedings; and
(b)	only parts of the Investigation Report are in evidence (as Exhibit 26), with parts of the text (especially relating to Night Shift) having been redacted.

	Some employees raised concerns with Heather Erwin's style and 'abrupt' 'aggressive' approach with people.
	Some employees highlighted scenarios when Heather has 'stared' at them excessively to the point that the employees feel unreasonably watched
	Some employees reported that Heather can be unhelpful and generally make casuals/new people to the department feel unwelcome (makes comments about them not knowing what they are doing - but doesn't help)
	Some employees reported that there is a personal conflict with Debbie Linke and Karen Egan which affects the team, resulting in continuous complaints and disruption to the team.

	Karen Egan: A key person named by a few employees as causing disruption with Heather and Debbie. Karen herself had a number of people state that she is very unhelpful, abrupt and generally smart arse
	Debbie Linke: Raised by a couple of people as being part of the ongoing issues and displaying similar behaviour to Heather and Karen.

	Different to night shift - it is clear that day shift has an unaddressed/unresolved problem at the moment particularly focussing around Heather Erwin, Karen Egan and Debbie Linke. It focuses mainly on their inability to get along and be able to work comfortably around each other. For Karen and Heather in particular focussed on them being unhelpful to new people/casuals in the department
	Heather, Karen and Debbie all reported each other as displaying the same behaviours that were alleged against them (as in: inappropriately talking to each other, general 'intimidation' through making their work environment difficult - eg: not helping each other, not addressing each other to get the job done, difficulty conveying basic messages about work requirements or rotations) and described as 'bad as each other'. Team members believe that these employees are continuously raising complaints to get each other 'punished', either pushed out of the department or sacked.
	Majority of employees saw that management at times have had many discussions with Heather, Karen and Debbie about how to speak to each other and how they should be able to get along, but majority of employees don't see this working and believe they feel too personal about the situation to change their view.
	Should review how Heather, Karen and Debbie can be separated fairly. As each has at times be [sic] the instigator of tit for tat against the other, it needs to be done in a way that it doesn't start another issue by someone thinking they are being punished and the other/s thinking they have 'won' by getting someone out of the area."

(a)	"the recommendation was that each were as bad as each other … and we
decided to take an alternative approach to see if we could settle the interpersonal conflict without needing to take a formal approach;"
(b)	the comments that people made, as noted in the report, "didn't necessarily surround specific instances" but described characteristics (like someone being sometimes abrupt) so that they were not "specific occasions to investigate;" and
(c)	the report recommended taking team-based options rather than specific individual options.

(a)	the response of management; and
(b)	in particular (and most importantly) the lack of feedback to the Appellant about what management was going to do to improve her position.

(a)	employees were given reasonable opportunities to raise their concerns and make complaints about others in the workplace;
(b)	those specific complaints were investigated in a timely manner;
(c)	appropriate courses of action were devised depending on whether the complaints were substantiated; and
(d)	management attempted to communicate to the complainant at least aspects of what was to be done, or not done, after the complaint had been investigated.

(a)	she was informed as appropriate that her complaints had been investigated and were being dealt with (though not with the outcomes she had wanted in relation to complaints that management found were unsubstantiated); or
(b)	in relation to her mid-July complaints, there was not an opportunity to inform her of action taken by management before she decompensated.

(a)	the Appellant was rotated to other departments as part of the new rotation scheme after the Investigation Report, but (on her and Ms Erwin's accounts) that did not substantially reduce their contact with each other;
(b)	on 17 July 2013, the Appellant was working in another department but returned to the Multipack department because the other department was overstaffed (so, as Ms Milton observed, the change to rosters was never going to stop the women having contact with each other);
(c)	according to Ms Milton, although staff are sometimes not assigned to a particular department for medical reasons (e.g. if they are allergic to nuts) it is not company policy to separate individuals who have personal conflict. Rather, adults need to work through issues from a professional perspective. She allowed, however, that if there was a medical reason for people being separated that would be considered.