Naylor v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 82
•13 May 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Naylor v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 082 |
PARTIES: | Naylor, Brendon Conrad v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/176 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 13 May 2015 |
HEARING DATES: | 17 and 19 December 2013 |
MEMBER: | Deputy President Bloomfield |
ORDERS: | 1. The Appeal is dismissed. 2. The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal with recourse available to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychiatric/psychological condition - Whether injury arose out of or in the course of employment - Whether employment was a significant contributing factor - Allegations of bullying - Allegations of threats of physical violence - Allegations of inappropriate management action - Evidence - Some allegations found to be without foundation - Other allegations found to involve reasonable management action taken in a reasonable way - Injury excluded by the operation of s 32(5) of the Act - Appeal dismissed - Costs awarded. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Ms S. Anderson, Counsel instructed by Mr R. Flores of Shine Lawyers for the Appellant. Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, with Mr G. Clark. |
Decision
This decision relates to an Appeal by Mr Brendon Naylor against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) to set aside the decision of WorkCover to accept Mr Naylor's Application for workers' compensation for a psychiatric or psychological injury said to have been incurred around 12 noon on
12 November 2012. As it turned out, Mr Naylor's Statement of Stressors (see below) identified seven events and/or circumstances, in the period August - 12 November 2012, as causative of his psychiatric/psychological condition.At the time of the events/circumstances identified by Mr Naylor as causative of his condition he was working as a Transport Driver, on local bulk deliveries and pick-ups, for Followmont Transport Pty Ltd (Followmont) in Bohle, a suburb of Townsville.
Nature of the Appeal
The Appeal is by way of hearing de novo with the onus being placed on Mr Naylor to show that his Appeal should be allowed on the balance of probabilities[1].
[1] Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision <
Section 32 of the Worker's Compensation and Rehabilitation Act 2003 (the Act) relevantly provides:
"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;
..."
In summary, it falls to Mr Naylor to establish, on the balance of probabilities, that:
· he was a worker within the meaning of section 11 of the Act (the Regulator does not dispute this issue);
· he sustained an injury within the meaning of section 32;
· the injury arose out of, or in the course of, his employment;
· the employment was a significant contributing factor to the injury; and
· his injury did not arise out of, or in the course of,
oreasonable management action taken in a reasonable way by Followmont in connection with his employment; or
ohis expectation or perception of reasonable management action being taken against him by Followmont.
The events/circumstances said to have caused Mr Naylor's injury
In response to a Further Directions Order to the effect that he identify the work events alleged to have led to him to sustain his psychiatric/psychological injury, Mr Naylor submitted a "Statement of Stressors" which detailed seven events/circumstances said to have caused his injury.
Although the "Stressors" so identified are not evidence, I have decided to record each event/circumstance (small typographical and spelling errors corrected) to provide some context to Mr Naylor's evidence (which was very difficult to follow and, generally, quite limited) about the same matters. For ease of reference I have also decided to include the evidence given by other witnesses about the same event/circumstance.
Before commencing to record the evidence given in relation to each stressor, it is necessary for me to record that while some of the evidence deals with events after
12 November 2012, the date Mr Naylor is said to have decompensated, I have only taken this evidence into consideration in a limited way to assist me to resolve conflicts in the evidence about events prior to 12 November 2012.Stressor 1
"23 August 2012 - Allan Christensen verbally abused Mr Naylor and threatened to bash him and then misrepresented the situation to the employer.
a. Mr Naylor was issued a formal warning as a result of an incident with Allan Christensen.
Mr Christensen had lied and told one of the Luthers that Mr Naylor had refused to deliver a 'connote'. In fact, Mr Christensen had willingly taken it off Mr Naylor's truck and not put it back on. The circumstances of that event was that Mr Christensen loaded his truck with half a load so Mr Naylor told him he would prefer to take a full load. During that conversation Mr Naylor asked Mr Christensen who it was who had told the Luthers that he had refused to deliver the connote. Mr Christensen admitted that it was he who had done so. Mr Christensen then informed management of his altercation. Mr Christensen told Mr Naylor that he was a 'lazy cunt' and that he had no hesitation in telling the company that fact.b. On two separate occasions before 28 August 2012 Mr Christensen became aggressive towards Mr Naylor and screamed that he was going to bash Mr Naylor saying 'I'll fucking bash you, you cunt!' On one occasion Mr Naylor told him to watch his fucking mouth and that his brain had run away with him. Tom Dungavell witnessed this event."
Evidence
Mr Naylor gave the following evidence about this stressor:
· tension, which had been developing between he and Mr Allan Christensen (a forklift driver) for a period of time, spilled over and they became involved in a verbal altercation on the morning of 23 August 2012;
· Mr Christensen had previously admitted he had spoken to management about an issue at the workplace (allegedly refusing to deliver a partial load to a customer) as a result of which he (Naylor) had received a formal warning;
· he had confronted Mr Christensen about having received the warning "on another day… so this was rolling along on that basis…";
· as Mr Christensen was loading his truck on the morning of 23 August 2012 he confronted him about the issue of receiving the warning;
· Mr Christensen told him he was "a lazy cunt", he was going to bash him, his (Naylor's) problem was that he didn't work and then just launched into a tirade;
· he told Mr Christensen "don't get your ambition mixed up with your capabilities";
· Mr Christensen drove away and came back and "repeated the performance";
· when Mr Christensen finished loading his truck he jumped in and drove off.
However, later in his evidence (T1-25) Mr Naylor said he had been "written up" (i.e. given a Warning) on the afternoon of 23 August 2012 for failing to deliver a connote and not hitting a time slot for a delivery and that the altercation with Mr Christensen happened about a week later. Still later (T1-29), he claimed that the altercation with Mr Christensen happened soon after he returned to the depot on the afternoon of 23 August 2012 and received a warning, for the reasons mentioned in the previous sentence, in a meeting with Mr Jason Luther, shift supervisor, and Mr Rowan Luther, the Depot Manager, (see below).
Mr Naylor said the circumstance surrounding his alleged failure to deliver a connote (i.e. a delivery) was that for quite some time he had been delivering partial connotes (i.e. only part of a delivery), which meant he had to explain to the customer that not all of their freight was on board and the rest of it would be delivered later. On this particular day he came to work and his truck was loaded with an incomplete connote and he asked
Mr Christensen if he could replace it with a full connote. Mr Christensen said he would take the partial delivery off the truck and did so. He then went to find something else. After 15 minutes he came back and said "I've got nothing to replace it with, you are right to go.".Later that afternoon Jason Luther took him over to Rowan Luther's office at which time "Rowan just started getting into me about how I'd missed a time slot and (asked) why … had I refused to carry a connote and all - like, I'm like what? … I was a bit flabbergasted. I was on my own. I had no witnesses, and I just didn't know where it was all coming from. It was just like totally out of - yeah out of…". In the course of his defence he told Mr Luther that in his mind he was better off taking a full connote (full load) and if there was a full one available that should be delivered first.
Mr Naylor said that Mr Luther made it pretty clear that he couldn't refuse a connote and if it happened again he "more or less" didn't have a job.
Mr Naylor also alleged he did not get an opportunity to tell Mr Luther he had not refused the connote, saying "I would have been lucky to have said three sentences", and it was "basically sign here, get out". "… I think he made me sign the - the Warning letter there. I later got a formal copy.".
In the course of his cross-examination Mr Naylor agreed he had seen his regular doctor on 30 August 2012 but rejected the suggestion he had not reported the events of
23 August 2012 as having caused him stress or to be fearful. Mr Naylor also said:· "If that's what the records show that's what the record shows. … If it's not in there, it's not in there.";
· "I didn't say to him 'I've been abused'. No, I didn't say that to him";
· while there was nothing in the doctor's records about his fear that did not mean the incident didn't happen;
· the doctor might not have written down what he told him in that he was a doctor who only wrote three or four lines; and
· he could not recall whether he reported the event to the doctor at the time.
Mr Rowan Luther said he had a number of discussions with Mr Naylor in April 2012 when he was working in an operational role on the floor. Mr Naylor spoke to him about some concerns he had including access to lunch breaks and a claim that Mr Christensen had damaged his truck with a forklift. When Mr Christensen denied it, he had to let the issue go to one side because he could not resolve it.
Under cross-examination Mr Luther agreed Mr Christensen raised the issue of Mr Naylor refusing to take a short delivery to a customer. He also agreed that Mr Naylor advised him that he did not refuse to take a short load. However, he denied that Mr Naylor told him that one of the issues between he and Mr Christensen was part connotes / part deliveries.
Under further cross-examination about the investigation he undertook prior to issuing
Mr Naylor with a warning (which concerned not only the refusal to deliver a partial connote but also his failure to meet a delivery timeslot at a customer's premises),
Mr Luther said, in essence, he made enquiries about the issues involved and "formalised" the counselling about a week later, on 29 August 2012, because he found the complaints against Mr Naylor to have substance.
Stressor 2
"On or around 30 August 2012 - The employer, by Rowan Luther, refused to hear or investigate a complaint about Allan Christensen.
a. Mr Naylor attempted to advise Mr Luther in his office about Mr Christensen's poor loading practices and the vehicle overloading. Damien Ross, North Queensland vehicle repair manager was present in Mr Luther's office. Mr Luther did not give Mr Naylor the opportunity to explain the situation with Mr Christensen or to advise him that Mr Christensen had threatened to bash him. Mr Luther ended the meeting before he was able to mention it."
Evidence
Mr Naylor said he attempted to have a meeting about Mr Christensen with Mr Rowan Luther, but was not successful. He went to see Mr Luther, who was talking with the fleet manager, Mr Ross, and asked Mr Luther if he was aware of "what was going on out the back". "Almost immediately" both Mr Luther and the fleet manager told him they knew what was going on and were happy with what was going on. "I just got bundled out of the office. They just weren't interested in talking to me.".
In the course of his cross-examination, Mr Luther said he could not remember Mr Naylor approaching he and Mr Ross, the workshop manager, and could only remember
Mr Naylor asking him "on occasion, to go out the back and see stuff". He also said that he did not recall telling Mr Naylor he was very happy with what was going on out the back and only became aware of the allegation Mr Christensen had threatened to bash
Mr Naylor when he saw Mr Naylor's Letter of Complaint dated 12 November 2012 (see paragraph [60] below).Stressor 3
"23 October 2012 - Abuse by Rowan Luther regarding taking a lunch break while on the road.
a. Mr Naylor was approached by Rowan Luther, the depot manager for Followmont in Townsville, while he was sitting in his truck having his lunch break. Rowan Luther aggressively ripped open the drivers cabin door of the truck and using a loud and abusive tone asked 'what the fuck are you doing?' Mr Naylor replied after gathering his composure 'I am on my lunchbreak, unless you have taken that right back from us?' Mr Luther then yelled at Mr Naylor in an accusatory tone 'You're attempting to conceal a Followmont vehicle in a side street, or residential area, for your own purpose and gain.' Mr Naylor responded 'in front of the fucking RAAF base is hardly fucking residential and hardly concealed!'
Mr Luther yelled 'When I see one of my trucks concealed in a side street you will be approached!'.b. Mr Luther continued his tirade by pointing out that Mr Naylor had not entered his lunchbreak on his Followmont Driver Run Sheet at that time. He accused Mr Naylor of being 'sloppy' and had 'unaccounted for time' on his run sheet. Mr Luther then yelled at Mr Naylor 'clean it up!'."
Evidence
In relation to this Stressor, Mr Naylor said:
· on 23 October 2012 he was parked in front of the RAAF base on Pilkington Street, in one of the small trucks, having his lunch;
· he was part way through his lunch when the left-hand door on the truck was "ripped open" and Mr Rowan Luther was there, just going off his nut at me.
· Mr Luther said "what the fuck are you doing?". In reply he said "I'm having my lunch";
· "and he's going off, like, have you told the F-ing fleet controller and, yeah, just - it was just a tirade";
· He (Naylor) said "have you taken lunch back off us? Like, what's the problem? Aren't we allowed to have lunch?";
· Mr Luther just ignored him and said that the sales team had spotted trucks where they shouldn't be, in residential areas;
· he told Mr Luther that the front of the RAAF base was not a residential area and that he must be joking;
· Mr Luther then questioned him about whether he had filled in his run sheet. He replied by saying that he didn't need to fill in his run sheet until he completed an activity;
· Mr Luther then told him "I believe you're trying to conceal this truck for your own profit and gain". In reply he said "I beg your pardon? … do you realise what you've just said? You've accused me of stealing a vehicle.";
· "I was just flabbergasted.… He wasn't responding much to what I said, and I started to get worried for my wellbeing, you know. I said 'do you have some purpose? What do you want? What is it you want me to do? Is there a job you want me to do?' … and I started to get worried.".
Mr Naylor also said Mr Luther spoke pretty loudly to him and he "was pretty loud back".
Under cross-examination Mr Naylor agreed that when he was parked outside the RAAF base he was sitting in his vehicle with the engine running and air-conditioning on and that he had heard the controller seeking a driver to pick up six pallets. In relation to this matter he said it was not his duty to respond to the controller because he was having his lunch break at that time.
Mr Naylor also rejected the proposition put to him that Mr Luther simply opened the driver's door and asked him what he was doing. He also said he could not recall
Mr Luther asking him if he was aware that the fleet controller was calling drivers in relation to the six pallets. When it was further suggested to him that that was what
Mr Luther actually said to him, Mr Naylor responded by saying "he accused me of stealing a truck. I remember that… he said 'you're using the truck for your own purposes and gain'." Mr Naylor also rejected the proposition that Mr Luther took the run sheet from the vehicle to look at it (saying he snatched it from the middle of the seat) and questioned him about what he had been doing since his last job at 11:40am when the time was now about 12:15pm. (Note: elsewhere in the proceedings the times mentioned were 11:25am and 12:15pm as well as 11:50am and 12:25pm. I do not regard the differences as important. This is because any reference to time was purely to indicate that more than 35 minutes had elapsed since the last job was completed.)It was also put to Mr Naylor that he did not mention the above incident when he went to see his doctor on 5 November 2012. After some prompting by Dr Spry, who represented the Regulator, Mr Naylor eventually said "… to the best of my recollection I don't remember what was said at that meeting (with the doctor), or he did not write it down.".
Mr Rowan Luther said he was out visiting customers and happened to be driving down Pilkington Street and heard the radio controller looking for a vehicle to pick up six pallets at the same time as he saw one of the company's vehicles parked on the right hand side of the road with the driver hunched (on his arms) over the steering wheel. He called up the fleet controller and asked if the truck was on a break but the controller said he did not know. He asked the controller who was driving the vehicle and received the response that the truck had not been booked out. He did a U-turn and ended up parking about 50 metres from the truck and walked up to it.
He opened the vehicle and saw Mr Naylor was in it. He asked him if he was on a lunch break because he noticed it was about 12:15 pm. About the same time as he was asking Mr Naylor whether he was on a lunch break he saw the run sheet on the middle seat "so I grabbed the run sheet, noticed that his last job was completed at 11:25… (and) … I suggested to him that he'd been there for longer than half an hour and asked him if his lunch break was over. He said it wasn't, he didn't start till 12 because he was doing some other jobs…". Mr Luther said he did not remember much about the rest of the conversation because he was more focused on getting the pallets picked up. He told
Mr Naylor that if this was his lunch break he should "just finish it, complete it, and then give the depot a call because they needed someone to pick up those six pallets.". He recalled that after he closed the door and began to walk back to his own vehicle Mr Naylor drove off pretty much straight away.
Mr Luther also denied accusing Mr Naylor of stealing a vehicle.
Under cross-examination Mr Luther said he contacted the fleet controller and asked if the truck on Pilkington Street was on a break. The fleet controller responded by saying that he did not have that truck logged out, which Mr Luther said caused him concern, more than anything else. This was because the controller was responsible to ensure that
pick-ups were made and he needed to know where the fleet was so that he could appoint the right truck to the right job. He also said that when he opened the door (he rejected the contention he "ripped" it open) he did not know who might be in the vehicle or whether the person might be on a break. When he opened the door he saw that it was Mr Naylor, who said he was on a lunch break. Given that there were allegations from Mr Naylor in the past that he did not receive lunch breaks he grabbed the run sheet to see what time he actually logged his break.Mr Luther also said there was a lot of stuff mentioned during the ten minute conversation he had with Mr Naylor and while initially denying it involved raised voices he then said "I was trying to establish whether he was on lunch or not and I was not getting direct answers. So - yes.".
Stressor 4
"23 October 2012 - Mr Luther required Mr Naylor to advise the fleet controller each time he had a meal break in circumstances where no other driver was required to do so.
a. Mr Luther then asked 'Have you advised the fleet controller that you are intending to have a meal break?' Mr Naylor responded that he had not heard a single other Followmont driver advise the fleet controller that they were going on a meal break ever and that in all the time he had worked for Followmont that this directive was not in the Followmont Drivers Handbook given to all drivers as part of their training material. Mr Luther responded by raving on 'You are to from hereon tell the fleet controller whenever you go to lunch and when you return from lunch you don't communicate with the fleet controller.'
b. Mr Naylor then asked Mr Luther 'Do you have something that you specifically need doing?' Mr Luther was causing fear of violence and distress to Mr Naylor because by this point in time he was smiling at Mr Naylor while yelling at him and quite obviously enjoying the situation."
Evidence
Mr Naylor said that after he asked Mr Luther whether he had a specific job he wanted him to do, Mr Luther asked him if he had called the fleet controller to tell him he was having lunch. After he replied that he had not spoken to the controller he asked Mr Luther "since when do we have to do that?". Mr Luther told him he would need to call the f-ing fleet controller from now on and tell him he was having his lunch break.
In the end, he told Mr Luther that if he had nothing else to say he was going to call in and see if he could get another job. He finished his lunch abruptly and went and undertook the job he was assigned (collecting the six pallets). "… (T)he whole thing was very, very, traumatic.".
When asked how he felt after the above event, Mr Naylor replied "Distressed. Extremely distressed… I was afraid for my wellbeing". He also said the way Mr Luther conducted himself "frightened me". "That's why I said to him, 'Have you got a job? Do you have a job?' All I was looking for was an out. I wanted to go.".
Under further questioning, Mr Naylor said that up until this time "not one single person" had ever told him he was not allowed to pull over and have lunch. Equally, no one had ever mentioned the requirement to contact the fleet controller before commencing a lunch break. Neither matter had been raised at any of the Thursday morning toolbox meetings and neither matter was mentioned in the induction paperwork or the driver's handbook.
Under cross-examination Mr Naylor rejected the contention he had continually approached Mr Luther, during a period when he was acting as a supervisor in about
April 2012, to complain he was not getting his lunch breaks. He also agreed that while most of the drivers returned to the depot for lunch, it would not be correct to say there would be no need for those drivers to radio the controller to inform him they were having their lunch break out on the road.Mr Luther's evidence was that he advised all the staff that the company needed to know where its trucks were, more for their safety than anything else. He said he told all staff that if they were not returning to the depot for lunch, they needed to advise the controller so that Followmont knew who was on a meal break and where their trucks were when they were available for work again.
Stressor 5
"25 October 2012 - Mr Luther raised the issue of staff parking vehicles/trucks on residential streets in a toolbox meeting in circumstances where Mr Naylor was the only driver Mr Luther could have been speaking about.
a. At a toolbox talk with all Followmont staff present, Mr Rowan Luther conducted the meeting. Mr Luther brought up the fact that he was not happy that Followmont sales staff were currently working in the city area, and that complaints had been raised about company vehicles/trucks being parked up in residential areas, and that it was 'not what I call a good look'. He also said that in his opinion most drivers were doing the right thing, but there was a 'small group of people that were fucking it up by doing the wrong thing.'
b. Mr Naylor said 'hold on you're calling Pilkington Street where you abused me a residential area?'. Mr Luther attempted to fob Mr Naylor off by telling him that if he had an issue that he wanted to talk about to him one on one that he should go to his office. Mr Naylor told Rowan Luther in front of all who were present that he would not be talking to him but that he would be talking to Brett Webb the North Queensland area manager about the treatment he had received from Mr Luther.
Evidence
Mr Naylor said that a day or two following the incident outside the RAAF base,
Mr Rowan Luther was conducting the usual 8am Thursday toolbox meeting with all staff and told them that the sales team had been out on the road and noticed trucks parked up on the side of the road in residential areas and "it was not a good look". Mr Luther also told the meeting that while most of the staff were doing the right thing there were a couple of people, just one or two, "that were fucking it up". When he said this, Mr Naylor took him to task, fairly loudly, questioning Mr Luther about how parking in the front of the RAAF base involved parking in a residential area.Mr Luther told him that he could come to the office later and talk one-on-one. In front of the meeting Mr Naylor told Mr Luther "… I'm not prepared to talk to you at all mate. I will talk to Mr Brett Webb…" the area manager. Mr Webb, who was standing not far away, indicated that he could see him (Naylor) later on.
Under cross-examination Mr Naylor agreed that his name had not been mentioned at the toolbox meeting "… but he did mention that some people had been fucking it up for everybody.".
It was also put to Mr Naylor that while he was allegedly afraid of Mr Rowan Luther at this time, he nonetheless challenged him at the meeting by telling him (Luther) that he would not speak with him and would only speak with Mr Webb. In response, Mr Naylor agreed: he did challenge Mr Luther at the meeting; he did say that he was only going to speak to Mr Webb; and, he did not think fear "was a part of it" when he had 70 other witnesses there.
Mr Luther said he reiterated to all the staff at the toolbox meeting that they needed to call the fleet controller if they were not coming back to the depot for their lunch break. In the course of his address to the meeting, Mr Naylor said something which he did not hear. He responded by telling Mr Naylor this was not the place and that he could come into his office after the meeting if he wanted to discuss anything and they could talk about it
one-on-one. He also said that Mr Naylor "pretty much aggressively pointed to the North Queensland Manager who was standing beside me, which is Brett Webb, and said 'I won't be talking to you, I will be talking to him.'."Later, Mr Webb pulled him into his office and said that it had been suggested he was picking on Mr Naylor. Mr Webb told him he needed to sort the situation out because he needed his managers to be able to communicate with their staff. Mr Luther said "there was about a four day period" where he tried to touch base with Mr Naylor in the presence of other staff, because he was concerned Mr Naylor was running some secret agenda. However, every time he went to walk toward Mr Naylor he would walk off. Mr Naylor then went on stress leave.
During the period Mr Naylor was away, Mr Webb kept asking him if he had spoken to Mr Naylor to sort the issue out. After Mr Naylor returned to work on 19 November 2012 he approached him and expressed to him that "the problems" in the early stages of the year had escalated and got out of control and "how about we let's just forget about all of this, put it behind us, forget about what's done. We need to start afresh and we need to move on.". According to Mr Luther, Mr Naylor said he had "concerns about rebuilding my trust and I assured him that that wouldn't be an issue. We'd move on.". Mr Naylor said he would be really happy with that and shook his hand.
Under cross-examination Mr Luther said that Mr Naylor brought it to his attention while they were in the truck outside the RAAF base that there was no detail in the Driver's Handbook to the effect that drivers needed to contact the fleet controller when they were on a lunch break on the road. As such, he thought that he should bring it up at a toolbox meeting to make sure everyone was aware of the requirement. He also admitted that he had never thought about the matter until Mr Naylor brought it up.
Mr Luther denied he told the staff during the toolbox meeting that sales staff had been driving around and noticed vehicles parked in residential areas and it was not a good look. He also did not recall telling the meeting that there was a small group of people that were "fucking it up".
Mr Webb said Mr Luther told the drivers during the toolbox meeting that if they were out on a run they could decide whether to come back to the depot and have lunch or whether they stayed out on the road but, in any event, they needed to communicate with the fleet controller so he knew where the trucks were and what the drivers might be doing. He also said he could not remember Mr Naylor's exact words when he spoke up during a toolbox talk but it was words to the effect that he believed Mr Luther was talking about him and he took offence. After Mr Luther said this was not the time to talk about it and that they should meet in his office straight after the meeting, Mr Naylor pointed at him (Webb) and said that he did not want to talk to Mr Luther, he wanted to talk to me (Webb).
Stressor 6
"25 October 2012 - In a meeting with Brett Webb, Mr Naylor raised his concerns about Mr Luther's abuse of him.
a. Mr Naylor immediately asked for a meeting with Brett Webb. The meeting was held on the same day in Mr Webb's office with only Mr Naylor and Mr Webb present. During the same meeting Mr Webb brought up that he had had someone reporting to him on more than one occasion that Mr Naylor's work was not up to the standard it was when he signed on as a permanent worker at Followmont.
b. Mr Naylor took issue with Mr Webb about the remark saying that he was aware that the forklift driver who loads the bulk trucks called Allan Christensen had made no secret of the fact that he was a stool pigeon for the company and that he had run to either a supervisor or the office to inform on Mr Naylor when he challenged him over the issue in the yard one day. During the meeting Brett Webb said that 'Regardless he would have to back his depot manager, and that was his stance.' Mr Webb then asked Mr Naylor what 'he was prepared to do or change to improve the situation'. Mr Naylor replied 'Absolutely fuck all Brett'.
Evidence
Mr Naylor said he met with Mr Webb later that day in the latter's office and told him about what had happened with Allan Christensen, Rowan Luther and "all that sort of thing". He spoke to Mr Webb about Mr Christensen because previous attempts he had made to speak with Mr Jason Luther (who "came across like he didn't even understand his position, so I forgot about him") and with Mr Rowan Luther, on the day Mr Ross was in his office, had all been unsuccessful. He told Mr Webb he thought Mr Christensen was a stool pigeon who was running around dobbing people in behind their backs. "Brett Webb never ever denied it".
Mr Naylor also said Mr Webb told him he had been receiving reports that he wasn't working as well as when he signed on as a permanent, as a result of which he (Naylor) "gave him a couple of opportunities to demonstrate that fact" because all of the company's records were loaded on the computer and Mr Webb should have been able to pull out a report if he believed he (Naylor) was not doing his job.
He also spoke to Mr Webb about the incident involving Mr Luther on the side of the road outside the RAAF base and told him word-for-word what had happened. He told
Mr Webb that Mr Luther had abused him and that it wasn't right and asked him what he was going to do about it. Mr Webb said he would talk to Mr Luther but also said "I'll let you know now, I will be in the practice of backing my depot manager…". In response he told Mr Webb he could understand his position but if the depot manager had done something wrong, that could be fatal insofar as his (Webb's) career was concerned.
Mr Naylor said that as far as he was aware there was never any investigation undertaken in relation to his complaints.Mr Naylor also said that in the course of the meeting Mr Webb asked him what he was prepared to do to change things and make them better. In response he said "I'm going to do fuck all, Brett. You've got a problem here…".
Mr Naylor said that at this time he felt like he was being singled out for special treatment, and cornered, like he had a target on his back. "Even after the meeting that we had - we tried to introduce two days later, after abusing me, the policy of calling in, it was never really enforced with anybody; however, he made it quite plain to me on that occasion that, like, if I valued my job I would be calling in.". In that respect Mr Naylor said that sometimes he contacted the fleet manager and sometimes he didn't. "It would depend, I guess, on my frame of mind - where I was…. because at the time I felt pretty intimidated.". However, he also said he did not get called in (before management) when he did not contact the fleet controller. He also claimed "I never heard anyone calling in on the radio. In fact, I used to record it in my diary when I did.". He claimed that when he called in, the fleet controller would be on lunch and no one would even answer the radio.
Mr Naylor also claimed "we were told that they were going to track us". He opined that this would be done by using trigonometry to track the Personal Digital Aid (PDA) he and other drivers carried in their vehicles to scan deliveries and pick-ups. He said the digital PDA "pinged the towers" and by calculating how long it took for the ping to reach a particular tower it was possible to calculate roughly where the vehicle was. He also said "when they (presumably Followmont) found out that they had this thing, they put out just a scatter gun thing - 'we're going to be looking at at least one driver a day to find out where yous (sic) are going and what yous (sic) are doing'.".
Because he had a background in telecommunications he understood "how these PDA tracking units work, and I knew that if the battery was removed from the back of it they couldn't see where you were, so I used to disconnect the battery out of it… so it wasn't going to ping them and tell them where I am and I'd have my lunch.". When asked why he would take such action, Mr Naylor responded by saying "self-preservation was what it felt like to me. I felt better when I turned it off.". He said he was worried about being tracked because he had been abused and accused of stealing a vehicle for his own purposes and then "pretty much obviously made to be the one and only guy that had to comply with (the) policy".
Mr Naylor said nothing came out of his meeting with Mr Webb and he joined the Union to try to get some more leverage. Later, on or about 12 November 2012, he wrote a Letter of Formal Complaint in relation to Mr Christensen, in the course of which he referred to:
· Mr Christensen twice threatening to bash him and referring to him as a lazy cunt, as well as admitting that he'd talked to management representatives about me (Naylor) on several occasions;
· Mr Christensen misrepresenting him to management by deliberately informing management that he had refused to take a connote and, on another occasion, telling Mr Jason Luther he had been standing around for an hour talking to another person and "doing fuck all";
· Mr Christensen deliberately defaming his "previously good reputation" and "bringing unneeded attention" from Followmont management which "has caused me continual stress, worry and anxiety, and the situation is now beginning to affect my health and wellbeing";
· the defamation had resulted in him (Naylor) being written up with a permanent warning as a direct result of Mr Christensen's self-admitted meddling and defamations; and
· having to deal with constant fear for his own well-being not knowing if, or when, Mr Christensen would physically lash out at him - as a result of which he was now suffering anxiety attacks and migraines on a daily basis and having breathing difficulties on other occasions.
The Letter of Complaint also acknowledged that Mr Webb informed him on 8 November 2012 that he had checked his (Naylor's) work (presumably on the computer) and it was "alright". The letter continued "I APPRECIATED his comments, HOWEVER, I want my reputation restored and Followmont management OFF my back." "I am ABSOLUTELY SPEECHLESS that Followmont management could use the defamatory statements of this man as a means to assess my work, and then place a permanent written warning on me.".
Under cross-examination Mr Naylor was questioned about evidence he gave in chief to the effect that during the course of his meeting with Mr Webb, Mr Webb pulled out a previous record of counselling in relation to pallet control requirements and told him that counselling did not count because it had not been signed. This question followed
Mr Naylor's evidence in cross-examination when he agreed by saying "not to the best of my knowledge" when it was put to him that Mr Webb did not bring out any warnings or cautions during the course of their meeting. After some debate about his evidence and whether he had changed it. Mr Naylor ultimately said: Mr Webb did open his personnel file; the counselling he had signed and dated on 4 January 2012 was produced; and it was that counselling which Mr Webb told him did not count.Mr Webb said he met with Mr Naylor on the day of the toolbox meeting, or the following day, about an incident that happened in Pilkington Street. Mr Naylor told him that
Mr Luther tore the door open and abused him about what he was doing at the time. He took details of the allegations and told Mr Naylor he would need to gather information "about what he said, she said, all that sort of stuff" so that he could find out what really happened. He also told Mr Naylor he would be taking his complaint seriously and would talk to Rowan Luther.Mr Webb also agreed that Mr Naylor told him Mr Christensen was a stool pigeon and had been dobbing people in behind their backs. As a result, he asked Mr Christensen to come into his office and tell him what his thoughts were on the "whole arrangement with the dobbing and all that sort of stuff". Mr Webb also said that he did not have Mr Naylor's personal file when he met with him and did not look through it or pull any documents out of it - most particularly the counselling record Mr Naylor gave evidence about in paragraph [62].
Under cross-examination Mr Webb confirmed that Mr Naylor told him:
· Mr Luther opened the passenger door aggressively and said "what the fuck are you doing?";
· Mr Luther reached in and took the run sheet, had a look at it and asked
Mr Naylor a series of questions along the lines of "what are you doing?";· Mr Naylor said he thought that Mr Luther was picking on him; and
· Mr Luther was swearing and had a raised voice.
When it was put to Mr Webb that his notes of the meeting recorded that Mr Luther "basically confirmed the conversation Brendon had expressed to me", he said Mr Luther confirmed he did approach the truck, opened the door and had a conversation for some time with Mr Naylor. However, Mr Luther denied being aggressive and swearing.
Mr Webb also said that he told Mr Luther that regardless of all of that "you did bail him up and talk to him about why he was there and you did have a look at the running sheet, and he said 'yes'.".Mr Webb also said he did take Mr Naylor's complaint seriously because once things come to the area manager, because Mr Naylor did not want to talk to his local manager, it became "serious". After listening to Mr Naylor's side of the story and Mr Luther's side of the story his decision from there was to get the two of them to sort this out like grown ups.
Mr Webb confirmed he visited Mr Naylor at home on the day after the scheduled meeting involving the union representative and they had a chat for an hour or so about handling stress, relaxation and those sorts of things. After initially agreeing with the proposition put to him that he became aware Mr Naylor was still upset about the way he was treated by Mr Luther, Mr Webb then said "… the exact cause I was not sure but he definitely was upset and didn't appear well.". Mr Webb also agreed that he understood, following that meeting, that Mr Naylor had a referral to a psychologist and was going to seek treatment. He also said that while he was not a doctor, he thought that Mr Naylor was suffering from stress and anxiety.
Under further questioning Mr Webb agreed that he would have reprimanded Mr Luther if it was established that Mr Naylor's allegations about what happened in the truck were correct. In that respect, he agreed it would be inappropriate for Mr Luther to have rushed in and said "what the fuck are you doing?", but also said it would be out of character for Mr Luther to act that way based upon what he knew of him.
Mr Webb also agreed Mr Luther told him that he was not happy about the truck being parked with the engine running and the air-condition on but also said Mr Luther did not know why that was happening when he approached the truck. "He did not know until he got there what was going on."
Mr Webb said that up until the time of his conversation with Mr Luther he did not know that Mr Naylor had claimed that he had not received his lunch breaks in the past. He also said that if someone was not taking their lunch breaks it was an issue, because every driver is obliged to take lunch by law "so we encourage everybody to have lunch and anyone who is not having lunch is breaking the law and we're not that sort of company. So we want everyone to have lunch… our response is, mate, you've got to have lunch. You've got to record it on your running sheet. It's the law. That's the rules.".
Mr Webb also said that while his notes of the meeting with Mr Luther recorded that
Mr Luther told him Mr Naylor was "a difficult person", that did not cause him to have additional concerns about Mr Luther's version of events compared to Mr Naylor's and, in those circumstances, to dig deeper to find out whether what Mr Naylor was saying about Mr Luther was true.Mr Webb also agreed that during the course of their meeting he told Mr Naylor that there was a perception that Mr Naylor's performance had fallen off since he had been employed full time. In response, Mr Naylor asked for evidence that he wasn't doing well and requested him (Webb) to look at the run sheets.
Mr Webb said the question he put to Mr Naylor (immediately above) was in accordance with his habit, when talking to people about complaints and the like, to ask them to think in hindsight whether there was something they could have done differently. He remembered asking Mr Luther if he could have handled the situation in the truck any better and he remembered asking Mr Christensen the same type of question.
Finally, Mr Webb acknowledged that he did not realise until his meeting with Mr Naylor there was no formal requirement for drivers to inform the fleet controller when they chose to park up to have their lunch. It was his understanding that that was what people did as a matter of course. However, he accepted that Mr Naylor did not think there was any such rule in existence when he parked to have his lunch in Pilkington Street.
In the course of his re-examination Mr Webb said that while some people in the transport industry swore all the time Mr Luther was not one of those people. He also said that he had been a truck driver himself in the past, he had been in the industry for 30 years, and it was "standard practice in the industry that if you're offline to have lunch or whatever… you advise the fleet controller. That's - that's what everybody does. So I assumed that that's what everybody was doing.".
Stressor 7
"August to November 2012 - By its failure to take seriously Mr Naylor's complaints about Allan Christensen and Rowan Luther the employer caused a psychiatric injury.
a. Mr Christensen was not moved out of Mr Naylor's section at the depot until he went on WorkCover on 23 November 2012. The management at Followmont did nothing to investigate when a complaint was made by Allan Christensen against Mr Naylor. They simply accepted what was said about Mr Naylor.
b. Mr Naylor was not allowed to make a complaint against Mr Christensen because his issue with Mr Christensen was dismissed. The management, by Brett Webb, failed to take seriously a complaint that was made against Rowan Luther for his behaviour on 23 October 2012. No investigation was undertaken. Mr Luther's attitude was simply accepted by
Mr Webb."Evidence
Mr Naylor said he prepared his Formal Complaint prior to a meeting which was scheduled on 12 November 2012 between Mr Webb, Mr Rowan Luther, the Union delegate and himself to try to get some of the issues sorted out. However, on the day of the meeting he had an anxiety attack and told Mr Jason Luther that he had to see his doctor and go home. Jason followed him out of the depot and asked him if he wanted to be dropped off anywhere. However, he rejected the offer and drove himself to the doctor a short time later. After visiting the doctor he was provided with a Workers' Compensation Medical Certificate, which certified he was unfit for duty between 12 and 19 November 2012 because of "Anxiety related to work, emotional abuse". He apparently lodged his Application for Workers' Compensation later that same day (i.e. 12 November 2012).
Mr Naylor said that when he visited the doctor he was feeling pretty distressed and anxious and that he had been feeling like that quite often since the blow-up with
Mr Christensen after he received the formal warning (in August). He had not experienced such feelings for three or four years, at which time he decided to leave a high pressure, high paid, position he previously held.Mr Naylor returned to work, it appears, on 19 November 2012. He said that while he was away Mr Webb came and visited him but tried to keep the conversation away from his stress. After he resumed work he had one impromptu discussion with Mr Webb. He did not know whether Mr Webb made a point to come out and see him or whether they just crossed paths. Mr Naylor also said he found the return to work to be pretty stressful "because I had that daily thing of - I was the only guy that was made to call in and, yeah…".
Although Mr Webb spoke to him briefly after he returned to work about the altercation with Mr Luther outside the RAAF base, Mr Luther did not speak with him about that matter.
Mr Naylor also said that soon after his return to work on 19 November 2012
Mr Christensen was moved so that the latter worked inside the shed, "which really meant nothing… he still loaded my truck from time to time.". He made a point of not speaking to Mr Christensen because of what had happened between them previously.
Mr Naylor said the stress kept building at work and he was ultimately given a further Workers' Compensation Medical Certificate on 1 February 2013 which certified him to be unfit for duty for three days because of "Verbal abuse at work and physical threat at work". However, he did not return to work.
In response to questions in cross-examination about the stated cause of injury on
1 February 2013 as "Verbal abuse at work and physical threat at work", and what the physical threat was, Mr Naylor gave the following evidence:· he might have mentioned to the doctor (who was not his normal doctor) that he might have experienced a physical threat at work, he did not recall;
· he did not recall whether the reference to the physical threat at work related to Mr Christensen, "I may have been talking about Christensen… it was quite a while ago";
· "it was possible" that it might have been in relation to another physical threat;
· the incident outside the RAAF base was a very intimidating situation to be in and "I felt there was a physical threat there, yes" and "I felt unsafe in my workplace".
Under further cross-examination Mr Naylor agreed that Mr Webb told him on 25 October 2012 that he would be speaking to Mr Luther about his complaint in relation to what happened outside the RAAF base but, despite this, refused to accept that Mr Webb took his claims seriously. He also said that while Mr Webb told him he would talk with
Mr Luther "how do we know? He told me, but how do we know that he did?". "He was going to convene a meeting, that never happened and never re-happened.".Mr Naylor also agreed that during the course of his discussion with Mr Webb, Mr Webb asked him what had changed since he started as a permanent employee because he was clearly not happy. In response he agreed he conveyed the point to Mr Webb that he was not happy and was at the stage where he was considering his position. He also agreed that Mr Webb asked him what he was going to do to change his supervisor's perception of him and that he responded by saying words to the effect that he had nothing to change.
Mr Webb said that after his meeting with Mr Naylor he spoke with Mr Luther and told him to go and talk to Mr Naylor… he also told Mr Luther that he had invested a lot of money into training its employees and did not want to be losing them. "Rowan virtually confirmed the story about - about what happened at the - you know, when Brendon was parked with the engine running and all that sort of stuff. Rowan said he was concerned about what was going on, why the truck was there and I fully supported him in pulling up to find out what trucks are doing parked on the side of the road given that we want to know what's going on with the trucks. When you see a truck parked where it probably shouldn't be or oughtn't be, why it's there, why not ask?".
Mr Webb said he spoke to Mr Luther on a few occasions after that about whether he had managed to speak with Mr Naylor. Mr Luther told him that every time he tried to approach Mr Naylor he either ignored him or walked away in a different direction.
Mr Webb recalled that one of them was away for a week or so and the next time he asked Mr Luther if he had managed to speak to Mr Naylor, Mr Luther told him that they'd had a good frank discussion and cleared the air.Under cross-examination, Mr Webb said the first he heard about any issues between
Mr Naylor and Mr Christensen was when he received a copy of the formal Letter of Complaint from Mr Naylor dated 12 November 2012 (see paragraph [60] above). As a result, he met with Mr Christensen, who had a different story. Given this result, he made the decision to transfer Mr Christensen to duties inside of the shed and to move the "inside" forklift driver outside to handle the bulk loading.Findings and conclusion
Submissions
Ms S. Anderson, of Counsel, who represented Mr Naylor, urged me to accept the evidence of Mr Naylor ahead of Mr Luther wherever there was a conflict in their evidence - most particularly the events which occurred outside the RAAF base on 23 October 2012. In relation to this matter, she said Mr Luther was obviously agitated at the time of his encounter with Mr Naylor in that:
· he had seen a vehicle parked with the engine running, with a driver in it who was resting his head on his arms which were placed around the steering wheel;
· he did not know who was in the vehicle, why it was parked and why it had been taken out of the depot; and
· the fleet controller was trying to find a driver to collect six pallets, which were "like money to Followmont", but no driver was responding.
In Ms Anderson's submission it was more likely than not, given the above background, that Mr Luther would have opened the door aggressively and asked the driver "what the fuck do you think you're doing?", as suggested by Mr Naylor, rather than in the manner Mr Luther claimed. Further, Mr Webb's evidence was to the effect that Mr Luther essentially confirmed the version given by Mr Naylor when those gentlemen spoke about the incident a few days later.
In addition, Ms Anderson cited several other events which she submitted should be accepted by the Commission as sources of Mr Naylor's accumulating stress, including:
· the abuse of Mr Naylor by Mr Christensen and the threats to bash him, given Mr Christensen was not called to contradict Mr Naylor's evidence;
· Mr Luther telling Mr Naylor, outside the RAAF base, that in future he had to contact the fleet controller when he proposed to take a lunch break on the road in circumstances where there was no previous requirement to do so and where no other drivers were required to make contact with the fleet controller;
· Mr Luther's comment to the staff meeting on 25 October 2012 about "a few people were fucking it up" could only have been a reference to Mr Naylor and it was understandable he would be upset by that; and
· Mr Webb's failure to keep Mr Naylor apprised of the outcome of his investigation into Mr Naylor's complaints about Mr Christensen and
Mr Luther.Further, Ms Anderson said Mr Webb's decision to instruct Mr Luther to go and see
Mr Naylor to "sort this out", his view that he just wanted the two grown men to get along and his failure to keep Mr Naylor informed of the results of his investigation concerning Mr Christensen and Mr Luther, demonstrated that he had not taken Mr Naylor's complaint seriously.Finally, Ms Anderson submitted that Mr Webb's decision to instruct Mr Luther to go and see Mr Naylor and sort out the matters between them demonstrated that he must have believed something untoward had happened in the course of their encounter outside of the RAAF base. Absent that conclusion, there was no other reason for Mr Webb to have taken that step. Equally, the decision by Mr Webb to move Mr Christensen to the inside shed, albeit that that was after the date of decompensation, would not have been taken if Mr Webb did not think it was warranted.
In direct contrast to the submission of Ms Anderson, Dr Spry urged me to totally reject the evidence of Mr Naylor whose credibility he seriously challenged. Dr Spry said
Mr Naylor was evasive during cross-examination, deliberately confrontational and aggressive when responding to questions during cross-examination and frequently and repeatedly contradicted himself. He also said Mr Naylor told "blatant untruths" and, as such, his evidence should not be accepted because he was not a credible witness.In support of these submissions, Dr Spry highlighted a number of aspects of Mr Naylor's evidence, including:
· his specific denial, and repeated refusal to confirm the fact when challenged about it, that he had suffered similar depressive and/or anxiety like symptoms during his previous employment in 2010;
· his evidence in relation to the preparation of his Statement of Stressors, which he repeatedly asserted he had prepared, without assistance, on his computer at home;
· his response on his Workers' Compensation Application, when he answered "No" to a question about whether he had previously suffered any similar injuries or conditions, when he clearly knew that he had made a previous workers' compensation application while employed by a different employer (in about 2010) about the very same types of issues he was now complaining about;
· his consistent attempts to avoid any mention of the 2010 application or the fact he made that application; and
· the fact that he stuttered during the course of his examination-in-chief but did not stutter once during his cross-examination and then resumed stuttering when his Counsel asked him, in re-examination, why he had stuttered during one part of his evidence but not the other.
In continuing, Dr Spry submitted that I should accept the evidence of Mr Luther over that of Mr Naylor in areas where it conflicted, especially Mr Naylor's claim that he feared for his well-being during their discussion outside the RAAF base. He said the Commission had the opportunity to observe Mr Luther who was softly spoken and somewhat introverted. This was in contrast to Mr Webb, who was rather outgoing, and Mr Naylor who demonstrated during the toolbox meeting on 25 October 2012 that he was not fearful of, nor intimidated by, Mr Luther when he openly challenged the latter during the course of his address to the assembled drivers.
Further, and more importantly, in Dr Spry's submission, none of the events Mr Naylor particularly complained about - being the alleged threats by Mr Christensen on or around 23 August 2012 and Mr Luther's alleged aggressive behaviour towards him on
23 October 2012 - had been raised by Mr Naylor with his treating GP during the course of visits on 30 August and 5 November 2012, respectively. The nearest the doctor's notes came to recording any concerns by Mr Naylor about his alleged mis-treatment at work were the comments "very anxious" and "stress at work, under a lot of pressure at work" contained in the doctor's notes of Mr Naylor's visit on 5 November 2012.
Findings
If Mr Naylor's version of events during the period of August - 12 November 2012 is to be believed, he was a quiet, wise, hard-working and innocent choir boy who had been subjected to abuse, threats of physical violence, bullying and intimidatory type behaviour from at least Mr Christensen and Mr Rowan Luther over that same period.
[100]However, Mr Naylor's presentation as a witness, taken together with his version of events, leads me to conclude that he was anything but a choir boy. Rather, he seemed to be a person from "the old school" who would not hesitate to speak his mind or engage with someone - including his managers - if he thought they were wrong about something or were picking on him in some way.
[101]In this respect, I refer to Mr Naylor's evidence about the following events/circumstances:
· in his evidence about Stressor 1, it was Mr Naylor's evidence he had confronted Mr Christensen about having received a warning "on another day" and that he confronted Mr Christensen (again) about that same issue during the course of the day on 23 August 2012. As such, rather than being the victim of some unprovoked attack and/or threats from Mr Christensen it was
Mr Naylor, himself, who initiated the exchange. Having initiated the exchange between them, it is taking it a bit beyond the pale for Mr Naylor to then complain that he did not like what Mr Christensen said back to him in return;· equally, while Mr Naylor readily complains that Mr Luther allegedly asked him "what the fuck are you doing?" when he opened the door of the truck outside the RAAF base, it is clear from Mr Naylor's evidence that the conversation which then followed was not one where he was continually attacked by Mr Luther and given no opportunity to respond. Mr Naylor's evidence about this event is replete with the types of comments he made back to Mr Luther during which he openly challenged many of the points
Mr Luther raised with him. Indeed, Mr Naylor said that whilst Mr Luther spoke pretty loudly at him he was pretty loud back;· Mr Naylor's evidence about his loud challenge to Mr Luther during the course of the latter's address to staff during the course of the toolbox meeting and his response, when Mr Luther invited him to meet one-on-one to talk about it, "I won't be talking to you mate, I'll be talking to him."; and
· Mr Naylor also showed he was not intimidated by Mr Webb during the course of their one-on-one meeting following the toolbox talk on 25 October 2012. During the course of this meeting Mr Naylor (quite disrespectfully) told
Mr Webb that he intended to do "fuck all" to attempt to improve his relationship with Mr Luther as well as to warn Mr Webb that if he adopted the approach of supporting his manager it could harm his career.[102]All in all I gained the impression from listening to Mr Naylor, and then re-reading his evidence on 4 or 5 occasions, that he was attempting to portray himself to be a straight up and down, "ridgy-didge" type of employee who would always humbly obey his managers' instructions and could do no wrong. However, my impression of him is much different. On my observations Mr Naylor presented as a person who spoke his mind and also believed that anyone who disagreed with his view of the world either didn't know what they were talking about and/or was singling him out for special treatment and/or was picking on him. Relevantly, in terms of his honesty, Mr Naylor was also prepared to disconnect the battery from the PDA so that Followmont could not track his whereabouts.
[103]One example of Mr Naylor's view of the world is his claim that he was the only employee who was required to call in to tell the fleet controller when he was taking his lunch break and to tell the controller where his vehicle was parked. However, such claim is without foundation. While Mr Luther might have told him on 23 October 2012 that he needed to contact the fleet controller whenever he was talking his lunch break, this requirement was not limited to Mr Naylor. As soon as Mr Luther established that what Mr Naylor had told him to the effect that the requirement to contact the fleet controller was not recorded in the driver's manual was correct, Mr Luther took immediate steps to alert the workforce that it was a formal requirement for staff to contact the fleet controller to inform him if they were talking their lunch on the road.
[104]Prior to that time each of Mr Luther and Mr Webb, with good reason in my opinion, believed it was standard practice across the whole of the transport industry, not just within Followmont, that drivers alerted their fleet controller to the fact that they were taking a break whenever they went offline. However, once Mr Luther spoke to the whole of the staff at the toolbox meeting and formalised the requirement to let the fleet controller know if a lunch break was being taken on the road, that obligation fell on all drivers, not just Mr Naylor. Accordingly, it is totally incorrect for him to assert that he was the only one subject to that direction. The direction applied to every driver and the fact that not many drivers might have contacted the fleet controller to advise him they were taking their lunch break on the road might have had more to do with the fact that they mainly took their lunch in the lunch room provided by Followmont. In any event, Mr Naylor said he was never called in when he did not follow this directive.
Conclusion
[105]In the absence of specialist evidence, from a psychologist or a psychiatrist, it is impossible for me to be certain which of Mr Naylor's identified stressors might have been more significant, in his mind, than others in the lead up to his general practitioner's diagnosis on 12 November 2012 that he was suffering "anxiety related to work, emotional abuse". This is particularly so in circumstances where the general practitioner could only rely upon information provided to him by Mr Naylor with, if the practitioner is typical of most other general practitioners, limited time to both see and question him.
[106]In any event, I propose to record my conclusions, based upon my assessment of all of the evidence and submissions, in relation to the seven identified stressors and their relevance to the matters Mr Naylor is required to establish, on the balance of probabilities, to succeed in his Appeal (see paragraph [5] above).
[107]Stressor 1: I am not satisfied that this incident happened in the way Mr Naylor alleges. On my assessment of his evidence, Mr Naylor initiated the exchange of words with
Mr Christensen but did not like Mr Christensen's response. Importantly, Mr Naylor did not mention anything about the alleged threats to his general practitioner when he saw that person on 30 August 2012, nor did he make any complaint about Mr Christensen
to the management of Followmont until his written Letter of Complaint on
12 November 2012.[108]Stressor 2: If Mr Naylor was stressed by this event, then it arose out of reasonable management action taken in a reasonable way in that Mr Naylor interrupted a meeting between managers with a rather oblique question about whether they were "aware of what was happening out the back", without any more detail. In the absence of any clear or pressing need to interrupt their meeting or to further enquire what it was that Mr Naylor might have been alluding to, it was not unreasonable that they ushered him out the door and resumed their meeting.
[109]Stressors 3 and 4: I have made a number of comments (above) about this encounter and do not feel the need to repeat those comments here. Suffice to say, I am not satisfied that the encounter between Mr Luther and Mr Naylor involved anything other than reasonable management action taken in a reasonable way.
[110]This is for the following reasons:
· Mr Luther was entitled to be inquisitive and concerned when he noticed one of Followmont's vehicles parked to the side of the road with the driver resting his head on his arms on the steering wheel in circumstances where the fleet controller could not tell him who was in that vehicle, because it had not been booked out, and where the fleet controller was also looking for someone to collect six pallets;
· Mr Luther was entitled to check the run sheet, when Mr Naylor told him he was on a lunch break, to ascertain when the lunch break might have started and when it might be expected to end;
· having noticed that the last drop-off recorded on the run sheet was more than 35 minutes previously, Mr Luther was entitled to ask Mr Naylor when his break started and when it was due to end;
· similarly, in circumstances where the last job was completed more than 35 minutes earlier, Mr Luther was also entitled to ask Mr Naylor why he was not responding to the fleet controller about collecting the six pallets; and
· in circumstances where Mr Naylor had previously claimed he was not getting his lunch breaks, it was entirely reasonable for Mr Luther to instruct him to record his lunch break on the day in question (23 October 2012) on his run sheet and, notwithstanding that the requirement to do so was not included in the driver's handbook, to instruct him that in future he (Naylor) was to let the fleet controller know whenever he went off on his lunch break and when he returned from that break.
[111]In arriving at these conclusions I do not suggest, for one minute, that the discussion between Mr Luther and Mr Naylor was not "lively". It clearly was. However, I am not satisfied that Mr Luther was anywhere near as aggressive during the course of their discussion as Mr Naylor alleges. In any event, Mr Naylor's evidence elsewhere (see for example the matters raised by Dr Spry at paragraph [96] above) causes me to be somewhat reluctant to accept his claims, especially when they involve obvious exaggeration on his part. A ready example of such exaggeration is Mr Naylor's claim he was fearful for his well-being when Mr Luther was in the truck. This is because Mr Luther is the shorter, smaller-framed and lighter of the two gentlemen.
[112]Stressor 5: It was perfectly reasonable management action, taken in a reasonable way, for Mr Luther to let the staff of Followmont know that management had received complaints about drivers parking up in residential areas and for him to tell them (if, indeed, he did say the words) "it was not a good look". It was also reasonable management action, taken in a reasonable way, for Mr Luther to say that while most of the staff were doing the right thing there were a number of people who might not have been.
[113]While Mr Naylor complains that Mr Luther could only have been speaking about him, when he allegedly said that there was a small group of people "fucking it up" by doing the wrong thing, Mr Naylor's name was not mentioned and nor was it suggested that he was one of the people Mr Luther might have been alluding to. Quite apart from this,
Mr Naylor categorically rejected that Pilkington Street was a residential area. If that be the case (and I agree that Pilkington Street outside the RAAF base is not a residential area) Mr Luther could never have been referring to Mr Naylor. Mr Naylor simply assumed Mr Luther was referring to him and reacted aggressively.[114]I also reject Mr Naylor's contention that Mr Luther tried to "fob him off" by suggesting that they talk about the matter later. This is because the issue which Mr Naylor was attempting to canvass was not the type of matter to debate in front of 70 or so staff members (on Mr Naylor's count) waiting for the toolbox meeting to end so that they could start work. It was entirely reasonable for Mr Luther to suggest to Mr Naylor that he should come and talk with him later if he (Naylor) wanted to discuss something he (Luther) had said.
[115]Stressor 6: I am satisfied that Mr Webb's actions in convening this meeting on
25 October 2012, as well as the way he went about conducting it, involved reasonable management action taken in a reasonable way. Firstly, he told Mr Naylor he would meet with him when he (Naylor) demanded such meeting at the toolbox meeting. Secondly, Mr Webb clearly listened to Mr Naylor's list of complaints and made notes in relation to them. Relevantly, in terms of Stressor 1 (above) and Stressor 7 (below) Mr Naylor did not complain to Mr Webb that Mr Christensen had threatened to bash him or called him objectionable names. Mr Naylor simply complained that Mr Christensen was a stool pigeon who dobbed people in behind their backs, including himself.[116]I also do not think there was anything untoward in Mr Webb mentioning to Mr Naylor that he had received some reports that Mr Naylor's work had fallen off since he had become a full-time employee. He simply relayed the point to Mr Naylor that that was what he had been told and invited Mr Naylor to respond. Raising this issue, in this way, in circumstances where something had been said to him, did not mean that Mr Webb engaged in unreasonable management action or that he undertook it in an unreasonable way. In any event, after Mr Naylor disputed the point, Mr Webb subsequently checked his records and then approached Mr Naylor to tell him he had looked at the issue and there was nothing wrong with his work.
[117]Equally, there was nothing wrong with Mr Webb forewarning Mr Naylor that as a general principal he stood by, or backed, his managers. From my perspective, that was a reasonable thing for Mr Webb to have said to Mr Naylor because if his investigation of Mr Naylor's complaint led to a situation where Mr Luther simply denied it he would, more likely than not, be compelled to support his manager because there was no witness. In that case, it would have been the proverbial "he said, he said differently" scenario, in which case Mr Webb would almost certainly have stood behind the more senior person.
[118]Stressor 7: Mr Naylor's assertion that Followmont did not act on his complaint about
Mr Christensen is without foundation because the first time management became aware that there might be some issue between the two gentlemen was when Mr Naylor lodged his Letter of Complaint on 12 November 2012, the day he has said to have decompensated. Importantly, as noted above, Mr Naylor did not make any comment to Mr Webb about Mr Christensen's alleged threat to bash him when the two gentlemen met on 25 October 2012. On that date the only complaint Mr Naylor made about
Mr Christensen was that he was a stool pigeon who dobbed people in behind their backs. It was also incorrect for Mr Naylor to allege he was not allowed to make a complaint against Mr Christensen because the issue was dismissed. If this is a reference to the matter recorded at Stressor 2, then everything that needs to be said about that Stressor has been said. However, if this Stressor relates to some other occasion no evidence was led to that effect.[119]I also do not accept Mr Naylor's contention that Mr Webb did not take his complaint about Mr Luther seriously and he did not conduct an investigation. I am satisfied on my consideration of Mr Webb's evidence that he did discuss the matter with Mr Luther and that, as a result, he requested Mr Luther to meet with Mr Naylor to sort out any differences between them. On Mr Webb's evidence, which I accept, he followed
Mr Luther up to see whether such meeting had taken place. In that regard, I also accept Mr Luther's evidence which was that while he attempted to approach Mr Naylor on a number of occasions to try to talk about the issue, Mr Naylor walked away from him on each occasion. Faced with that scenario, I think it was entirely reasonable for Mr Luther not to yell out or otherwise try to detain Mr Naylor so that they could have a talk.
Mr Naylor had already complained about him and any such attempt by Mr Luther could have led to an escalation in Mr Naylor's grievance about him.[120]While hindsight suggests that Mr Luther might have made more concerted attempts to talk with Mr Naylor, or Mr Webb might have gone and seen Mr Naylor himself and let him know that he had asked Mr Luther to talk to him, the test in such matters as this is whether the management action involved was reasonable, not whether it was perfect[2]. Given that a period of 10 working days (only) elapsed between the date of the meeting between Mr Webb and Mr Luther on 26 October 2012 and Mr Naylor making his application for Workers' Compensation on 12 November 2012, I am not satisfied that the management action fails the test of "reasonableness" established by the authorities.
[2] Donald John MacDonald v Q-COMP (C/2009/59) - Decision < at [15].
Summary
[121]For the reasons recorded above, I find that:
· Mr Naylor's recorded injury of "anxiety related to work, emotional abuse" arouse out of or in the course of, his employment where the employment was a significant contributing factor to the injury;
· Stressors 1 and 7a could not have contributed to the development of
Mr Naylor's psychiatric or psychological condition because they either did not happen or did not happen in the way he alleged[3]; and[3] Vesna Misevski v Q-COMP (C/2009/29) - Decision < at [30].
· any contribution to the development of Mr Naylor's psychiatric or psychological condition as a result of the matters recorded in Stressors 2, 3, 4, 5, 6 and 7b was as the result of reasonable management action taken in a reasonable way.
[122]In light of these findings, Mr Naylor's Appeal must be refused in that his psychiatric
or psychological injury is excluded from the definition of "injury" at section 32(1) of
the Act by the operation of section 32(5). Accordingly, I dismiss his Appeal,
Matter No. WC/2013/176.[123]I also determine that the Appellant is to pay the Respondent's costs of, and incidental to, the Appeal with recourse to be available to the Commission if the parties are unable to agree on the amount of costs involved.
[124]I determine and Order accordingly.
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