McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd - [2014] QIRC 13

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McMah

Simon

Blackwood

(Workers’

Compensation Regulator) [2014] QIRC 013

PARTIES:

McMah, Paul Antony Douglas

(appellant)

Simon Blackwood (Workers’ Compensation

Regulator)

(respondent)

CASE NO:

WC/2012/385

PROCEEDING:

Appeal to Industrial Commission against a decision

of the Regulator

DELIVERED ON:

23 January 2014

HEARING DATES:

22–3 July 2013

MEMBER:

Deputy President O‟Connor

ORDERS:

(1)	That the appeal be dismissed;
(2)	That the decision of the Regulator dated 12 September 2012 be confirmed; and

(3) That the appellant pay the Regulator’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.

CATCHWORDS:

WORKERS‟ COMPENSATION – MEANING

OF “INJURY” – PSYCHIATRIC OR

PSYCHOLOGICAL

DISORDER

–

REASONABLE MANAGEMENT ACTION – DISCRIMINATORY ACTION – Where the appellant sought workers‟ compensation for a

personal injury described as “stress” – Whether

that injury arose out of, or in the course of, reasonable management action taken in a

reasonable way – Where the appellant argued that the relevant “management action” was with

respect to his roster – Where the appellant was

required, upon commencement of his employment with the employer, to work on Saturdays as part of

a “seven-day roster” – Where the appellant

subsequently re-engaged with his religious faith

and came to believe that he could not work on the

Sabbath – Where the appellant argued that the seven-day roster therefore amounted to “indirect discrimination” – Where the appellant argued the

management action was discriminatory and

therefore could not be reasonable

CASES:

Anti-Discrimination Act 1991 (Qld), s 11

Workers’ Compensation and Rehabilitation Act

2003 (Qld), s 32, s 550

Svensen v Q-COMP (2006) 181 QGIG 629

Misevski v Q-COMP (C/2009/29) - Decision
<

Bowers v Q-COMP (2002) 170 QGIG 1

Sabo v Q-COMP (C/2010/46) - Decision
<

WorkCover Queensland v Kehl (2002) 170 QGIG
93
Prizeman v Q-COMP (2005) 180 QGIG 481

MacDonald v Q-COMP (C/2009/59) - Decision
<

APPEARANCES:

Mr S. McLennan of Counsel, instructed by Taylors
Solicitors, for the appellant.
Mr S. P. Gray of Counsel, for the first respondent.
Mr P. Cullinane of Counsel, instructed by Minter
Ellison Lawyers, for the second respondent.

This is an appeal by Mr Paul Antony Douglas McMah (“the appellant”) pursuant to
s 550 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”)
against the decision of Q-COMP‟s Review Unit dated 12 September 2012, which
confirmed the decision of the self-insurer BHP Billiton Limited dated 18 April 2012 to reject his application for compensation in respect of a psychiatric or psychological disorder said to have arisen during the course of his employment as a fitter at BHP
Billiton Coal Pty Ltd‟s (“BHP”) Peak Downs Mine.

[2] Since the hearing of the appeal, the Act has been amended. One such amendment
has resulted in the respondent to the appeal – Q-COMP – being abolished. As and from 29 October 2013, the Act provides that Q-COMP is replaced by the Workers‟ Compensation Regulator, Simon Blackwood (“the Regulator”). Thus, the Regulator
is the respondent in this appeal.
[3]      The basis for decision by the respondent was that the appellant did not sustain an
“injury” within the meaning of that term in s 32 of the Act, relying on the
determination that the appellant‟s injury arose out of “reasonable management action taken in a reasonable way” and was therefore ousted from the definition of “injury” by virtue of s 32(5).
Grounds of Appeal
[4]      The grounds of appeal upon which the appellant relied are as follows:
“(a) he sustained a personal injury namely a psychological/psychiatric injury;-

(b) that personal injury arose out of and in the course of his employment;
(c) his employment was a significant contributing factor to that personal injury; (d) the said personal injury arose out of or in the course of unreasonable management action taken in an unreasonably way by the employer in connection with his employment; and

(e) he has therefore suffered „injury‟ as that term is defined under [the Act.]”
Issue for Determination
[5]      The issue for determination in this appeal is whether the appellant suffered an
“injury”, namely stress, within the meaning of that term in s 32 of the Act and, in

particular, whether that psychiatric or psychological disorder is removed from the
definition of injury by virtue of s 32(5).
[6] Section 32 of the Act relevantly provides as follows:
“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.
…

(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 by the Authority or an insurer in connection with the
worker‟s application for compensation.”

[7] The Regulator concedes that, at the relevant time, the appellant was a worker.
[8] The appellant‟s application for compensation, which was received by the self- insurer on 2 March 2012, was for an injury described as “stress” which was said to
have occurred on 19 January 2012.
[9] The Regulator accepts that the matters described by the appellant have a causal connection with his employment sufficient to satisfy the provisions of s 32(1) of the Act.

The appellant‟s primary case is that he has been indirectly discriminated against
pursuant to s 11 of the Anti-Discrimination Act 1991 (Qld) and, as a consequence,
the “discriminatory action” cannot be regarded as reasonable management action.
Section 11 of the Anti-Discrimination Act 1991 relevantly provides as follows:
“11 Meaning of indirect discrimination

(1) Indirect discrimination on the basis of an attribute happens if a person
imposes, or proposes to impose, a term–

(a)

with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute

comply or are able to comply; and

(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant
circumstances of the case, including, for example–
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or
proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose,

the term is aware of the indirect discrimination.

(4) In this section–

term includes condition, requirement or practice, whether or not
written.”

[11] The appellant‟s submission is that for the purposes of s 11(1) of the Anti-
Discrimination Act 1991 the relevant “term” imposed by BHP was as follows:
“BHP imposed on the appellant‟s employment that in order for him to continue
working all of the shifts in the „7 day roster‟ as a fitter in the Maintenance
Department he had to work those shifts which fell on Saturdays.”
[12] Section 11(1) of the Anti-Discrimination Act 1991 provides that for conduct to amount to indirect discrimination a person must impose, or propose to impose, a term with which a person with an attribute does not or is not able to comply. The
appellant submits that the appellant‟s attribute is his religious belief – namely, that
he cannot work on the Sabbath. Nothing in the employment relationship changed until the appellant re-engaged with his religious faith. It was at this time that the
appellant‟s personal circumstances changed and he was no longer able to work a
seven-day roster.
[13]      The appellant raised the issue of his inability to work on Saturdays with Mr Gary Morgan, the mobile maintenance superintendent at Peak Downs Mine, sometime in early October 2011.
[14]      Whilst the appellant identifies with the Seventh Day Adventist Church, he does not fully subscribe to all of their teachings but believes that they are the closest Church to the true teachings in the Bible. He regards himself more of a Christian than a Seventh Day Adventist. His re-engagement with the literal teachings of the Bible coincided with a period in his personal life when his former wife and three children relocated to South East Queensland. This was, on his evidence, a major stressor in his life and precipitated his contact with the Seventh Day Adventist Church.
[15]      On 31 July 2008, the appellant accepted employment with BHP as a fitter at Peak Downs Mine. A condition of his employment was a requirement to work shift work which would include a seven-day roster.
[16]      The evidence of the appellant is that he commenced employment at Peak Downs on 12 August 2008 on a continuous seven-day rotating roster as a diesel fitter in the mobile maintenance section. He worked continually up to a point sometime in October 2011 when he re-engaged with his religious faith and adopted a literal interpretation of the Bible which prevented him from working on the Sabbath.
[17]      On the appellant‟s own evidence he accepted employment at Peak Downs on the

basis that he would be required to work a seven-day roster, which would naturally
include working during the period of the Sabbath.
[18]      As a consequence of an unrelated disciplinary proceeding, the appellant was stood down from his employment for a period between November 2011 and January 2012. He returned to work on 19 January 2012. It was at this time that he formally raised with management the prospect of a change in his roster to avoid him working on the Sabbath.
[19]      In cross-examination, the appellant conceded that his request for a change in his roster to avoid working on a Saturday was being considered by his employer but, in the interim, he would need to apply for, and take, annual leave. In response to the following question from Counsel for BHP, the appellant said:
“See, what I‟m suggesting to you is that he told that he was looking into this
matter that is a request for a change in roster. But that you would have to take
annual leave until it was sorted out or there was an answer. That‟s correct, isn‟t
it?---Until there was an outcome.
Yes?---Yes, I suppose.”
[20]      Whilst the issue of working on the Sabbath was raised by the appellant during a meeting on 18 November 2011 between himself, Ms Jodie Dubois, Human Resources in the Production Mining Department, and Ms Joanne Pearce, Senior Advisor, Human Resources in the Maintenance Department, it was not the reason for calling the meeting. The appellant conceded in cross-examination that the meeting was convened to deal with allegations against the appellant relating to threatening behaviour towards a co-worker at the mine and not the issue of a change in roster to accommodate his religious beliefs. It was subsequent to this meeting that the appellant was stood down.
[21]      During the period of his stand-down, the appellant made no attempt to contact Human Resources at BHP or management seeking a change in his roster. He stated clearly in his evidence before the Commission:
“Now, the question was quite simple: you didn‟t ring and speak to anyone in HR
or a supervisory position at the mine whilst you were stood down, seeking a
change of roster if you returned?---No.”
[22]      At 7:00am on 19 January 2012, the appellant spoke to Mr Morgan about his options for not working on a Saturday. In re-examination the appellant read from his diary note:
“And then 7 o‟clock: meeting with Morgs. Discuss no work Saturdays. Was told
to use annual leave and that working other days in lieu is not an option. Asked to
be – asked to be put on supervisor‟s course, told yes, next available course. Was
told current roster was only one available. Asked about planners since they work
Monday to Friday. Was told he hadn‟t thought of that. And then approximately
12 midday – do you want me to - - - Met Morgs near warehouse. Told him up
until this time next year we are rostered 26 Saturdays on and we get 22 annual
leave. No response.
Met with Jodie Dubois. Told her about the 26/22 stats. Was told to talk to Joanne
– Jo Pearce, who was away.”
[23]      The appellant met Ms Dubois and Ms Pearce sometime in January 2012 to discuss a
change in roster – in particular, to a Monday-to-Friday roster – on the basis that he
could no longer work on Saturdays. The appellant did not formally request a change to his roster at that time. However, in early- to mid-February 2012, Ms Pearce said that she received a request from the appellant to change to a Monday-to-Friday roster.
[24]      In the appellant‟s evidence, he recounted a conversation he had with Mr Chris
Brewster, his immediate supervisor in relation to his application for leave for those Saturdays on which he was rostered. Mr Brewster advised the appellant that he could not sign off on leave without pay and that the appellant would need to take annual leave. The appellant subsequently developed a severe headache, began vomiting, and was attended to by an ambulance officer. He was referred to Griffin Psychology and attended upon Dr Paul Joice, a general practitioner, on 13 February
2012, where he was provided with a workers‟ compensation medical certificate.
[25]      It was at this stage that it became apparent to BHP that the appellant was suffering from stress relating to his concern that he did not have sufficient annual leave to cover him for the Sabbaths from March 2012.
[26]      The appellant was on sick leave from 8 February to 1 March 2012. Upon his return to work, the appellant had a meeting with Ms Pearce. It was her hope that she could
have finalised arrangements to accommodate the appellant‟s request but this had not
been possible owing to the absence of Mr Morgan.
[27]      In the evidence of Ms Pearce, she indicated that she raised the issue of the change in roster with Mr Morgan after he had returned from leave to see whether the
appellant‟s request could be accommodated. Subsequently, a meeting was held between Ms Pearce Mr Mark Stropiana, BHP‟s Human Resources Manager, and it
was agreed to create a position for the appellant on a five-day roster basis.
[28]      On 8 March 2012, Mr Morgan rang the appellant to advise him that arrangements had been made to accommodate his request for a five-day, Monday-to-Friday roster.
Conclusions
[29]      On a proper assessment of the totality of the evidence before the Commission, the conduct of BHP cannot, in my view, be considered unreasonable.
[30]      The appellant first sought a change of roster upon his return to work on 19 January 2012. Whilst his request was being considered, he was required to take annual leave. In accordance with his religious beliefs, he did not work on any Saturday until the change of roster came into effect.
[31]      An arrangement was made on 8 March 2012 which allowed the appellant to work a five-day roster and thereby avoid working on the Sabbath. The evidence, which I
accept, is that BHP specifically created a position for the appellant – something
which, according to Ms Pearce, had not been done in her 17 years with the company. The roster required the appellant to work 9:00am to 5:00pm, Monday to Friday, however, after a request from the appellant an arrangement was made whereby he could start on Friday at 6:30am and finish work at 2:30pm to allow him to reach home before sunset to prepare for the Sabbath. A further request was made by the appellant to change his hours on another day to suit his personal requirements, which was also accommodated.
[32]      I accept the evidence of Mr Morgan that the workload of the maintenance unit requires a seven-day roster arrangement to deal with an approximate mix of 60% maintenance work and 40% repairing breakdowns. I further accept his evidence that,
logistically, a request for a change in roster “involves quite a bit of work”.
[33]     Counsel for the appellant submitted that “as a result of the new roster, the appellant‟s remuneration was reduced from approximately $113,000 to
approximately $85,000”. I do not accept the submission that BHP has treated the
appellant unfavourably by acceding to his request to give him a five-day roster. On
the appellant‟s own evidence, he specifically sought a five-day roster. In my view,
BHP took considerable steps to accommodate that request, even to the extent of creating a position for the appellant. It is disingenuous to now claim that he has been disadvantaged financially.
[34]      In the submission of the appellant, it is argued that it took BHP nearly five months to transfer the appellant to a five-day roster. The evidence suggests that the appellant did not seek any accommodation for his religious beliefs prior to being stood down on 11 November 2011. Whilst the appellant had some brief conversations with his supervisor concerning his religious beliefs, none of these were done in a formal context. It was not until 19 January 2012 that a formal request for a change of roster considered. In my view, when the evidence is considered in its totality, BHP acted as quickly as possible to resolve the roster issue, particularly when the following factors are considered:

(a)

the evidence of Mr Morgan that a change in roster presents its own logistical difficulties;

(b)

the extended period during which the appellant was stood down from work from November 2011 to January 2012;
(c) the appellant‟s period of sick leave in February 2012;

(d)

the absence of Mr Morgan whilst on leave, which prevented discussions from taking place; and
(e) the steps which needed to be taken to create a position for the appellant.

[35] Whilst there may have been some delay it was not, having regard to the

circumstances, inordinate. As was observed in Svensen v Q-COMP, “What is
required is reasonable management action reasonably taken in all the circumstances
of the case; not best practice.”[2] In applying s 35(5) of the Act, we are not concerned
[2]
3

with perfection.
[36] The appellant‟s evidence of his conversations regarding a change of roster in the
period prior to being stood down was unimpressive. It lacked detail and, as was revealed in cross-examination, it was to some extent inconsistent with a previous statement he had given.
[37] Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action in this context may be
considered “blemishes”. Management action does not need to be without blemish to
4

be reasonable.

In Sabo v Q-COMP,[5] Hall P wrote:
[5]
“the exercise of assessing „reasonableness‟ for the purposes of s. 32(5)(a) of the
Act, is evaluative as well as judgmental. There is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a
measure of latitude”.[6]
[6]

[39] There was some evidence from the appellant that he took the view that Mr Morgan did not wish to accommodate his request for a change in roster. In considering the question of an employee‟s perceptions, Hall P in WorkCover Queensland v Kehl[7]

[7]
said that “reasonable” should be treated as meaning “reasonable in all the
circumstances of the case”.[8] It is thus the reality of the employer‟s conduct and not
[8]
the employee‟s perception of it which must be taken into account.[9]
[9]

[40] In dealing with the appellant‟s submissions concerning a breach of the Anti-

Discrimination Act 1991, I refer to the decision of MacDonald v Q-COMP, where
Hall P wrote:
“Counsel for the Appellant has pressed the argument that management action
which is unlawful cannot be „reasonable management action taken in a
reasonable way‟ and that, in this case, there had been a contravention of the
Workplace Health and Safety Act 1995. In my view, the submission is beguiling but incorrect. The purpose of s. 32(5) of the Act is to withdraw from the
definition of „injury‟ psychiatric and psychological injuries which arise out of or
in the course of reasonable management action reasonably taken. Where a regulation or ministerial notice has been made about the way to prevent or minimise an exposure to a risk, the Workplace Health and Safety Act 1995 allows no room for reasonableness. Reasonableness is a consideration only where a code of practice has been made and a defendant seeks to raise the defence at s. 37(1)(b)(ii), or if there is neither a regulation nor a ministerial notice nor a code of practice (see s. 27). To adopt the submission would be to limit the statutory
language and to limit the exclusionary effect of s. 32(5) (a) of the Act.”
[41] The submission of the appellant is, in short, that discriminatory treatment – namely, indirect discrimination under the Anti-Discrimination Act 1991 – cannot constitute
reasonable management action. Like MacDonald, this case did not involve a proceeding under another piece of legislation and, like MacDonald, there was no positive finding. The most that can be submitted by the appellant is that there is evidence which might amount to a breach of the Anti-Discrimination Act 1991. It does not, in my view, necessarily follow that evidence of conduct which may constitute a breach of the Anti-Discrimination Act 1991 would, of itself, lead to a conclusion of unreasonableness. It is but one of a number of factors which may be taken in account when considering whether or not the management action was reasonable and taken in a reasonable way.
[42] On consideration of the evidence before the Commission, I find that the appellant has not discharged the burden of displacing the operation of s 32(5) of the Act.
BHP‟s management action was reasonable and taken in a reasonable way. As a
consequence, the personal injury suffered by the appellant is, by virtue of s 32(5),
excluded from the Act‟s definition of “injury”.
Orders
[43] Accordingly, I make the following orders:

(1) That the appeal be dismissed;
(2) That the decision of the Regulator dated 12 September 2012 be confirmed;
and
(3) That the appellant pay the Regulator‟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.

(2006) 181 QGIG 629.

Ibid, 631.

Misevski v Q-COMP (C/2009/29) - Decision < [27].

Bowers v Q-COMP (2002) 170 QGIG 1.

Sabo v Q-COMP (C/2010/46) - Decision <

Ibid [21].

(2002) 170 QGIG 93.

Ibid, 94.

Prizeman v Q-COMP (2005) 180 QGIG 481.

MacDonald v Q-COMP (C/2009/59) - Decision < (“MacDonald”).

(a)	the evidence of Mr Morgan that a change in roster presents its own logistical difficulties;
(b)	the extended period during which the appellant was stood down from work from November 2011 to January 2012;
(c)	the appellant‟s period of sick leave in February 2012;
(d)	the absence of Mr Morgan whilst on leave, which prevented discussions from taking place; and
(e)	the steps which needed to be taken to create a position for the appellant.

Discrimination Act 1991, I refer to the decision of MacDonald v Q-COMP,	where
Hall P wrote:

(1)	That the appeal be dismissed;
(2)	That the decision of the Regulator dated 12 September 2012 be confirmed; and
(3)	That the appellant pay the Regulator‟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.