Raineri v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 124
•8 August 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Raineri | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 124
| PARTIES: | Raineri, Guiseppe (Joe) | ||||||
| (Appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (Respondent) | |||||||
| CASE NO: | WC/2013/68 | ||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||
| (Workers' Compensation Regulator) | |||||||
| DELIVERED ON: | 8 August 2014 | ||||||
| HEARING DATES: | 29 and 30 April 2014 | ||||||
| 1 and 2 May 2014 4 June 2014 (Respondent's submissions) 17 June 2014 (Appellant's submissions) | |||||||
| MEMBER: | Industrial Commissioner Thompson | ||||||
ORDERS : |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - Appellant established the personal injury arose out of, or in the course of, employment - employment was a significant contributing factor to the injury - psychiatric/psychological injury - unreasonable management action taken in an unreasonable way | ||||||
| - in connection with employment - decision of | |||||||
| Regulator set aside - Appeal allowed - Regulator to pay Appellant's costs. | |||||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||||
| 2003 s 11, s 32(1), s 32(5), s 550 | |||||||
| Evidence Act 1977 State Buildings Protective Security Act 1983 Invasion of Privacy Act 1971 | |||||||
| |||||||
| |||||||
| < | |||||||
| Susan Forden v Q-COMP [2009] Magistrate Lee (MAG 31405/07, 28706/08 & 36307/08) D Byrne and JD Heydon, Cross on Evidence, fourth Australian Edition, Butterworths 1991, page 1029 Montfory v Rhodes Corporation [2005] VSC 320 RPS v The Queen [2000] 199 CLR 620 Insurance Commissioner v Joyce [1948] 77 CLR 39 | |||||||
| Flinders Operating Services Pty Ltd (formally NRG Flinders Operating Services Pty Ltd) v | |||||||
| Amato [2007] SAWCT 33 | |||||||
| Rea Georges v Telstra Corporation Limited | |||||||
| [2009] AATA 731 Bowers v WorkCover Queensland [2003] 170 QGIG 1 Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301 Catholic Education Services v Q-COMP [2007] 185 QGIG 248 Q-COMP v Department of Education [2005] 179 QGIG 491 Prizeman v Q-COMP [2005] 180 QGIG 481 Q-COMP v Hohn [2008] 187 QGIG 139 | |||||||
| APPEARANCES: | Mr B. Munro, Counsel instructed by Turner Freeman Lawyers for the Appellant. Mr N. Jarro, Counsel directly instructed by Simon Blackwood (Workers' Compensation | ||||||
| Regulator), the Respondent. |
[2] The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to reject the Appellant's Application for Compensation in accordance with s 32 of the Act.
[3] On 16 July 2013 the Appellant lodged with the Industrial Registrar an Amended Notice of Appeal which reflected an Amended Statement of Stressors.
Relevant Legislation
[4] The Legislation pertinent to this Appeal is 32 of the Act:
"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."
[5] Note: This section of the Act was amended effective on 29 October 2013 with this matter determined subject to the legislation prior to the amendment.
Nature of Appeal
[6] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[7] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[8] In the course of the proceedings, evidence was provided by eight witnesses.
[9] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[10] The witnesses for the Appellant were:
Appellant (Raineri); and Dr David Storor (Dr Storor).
[11] The witnesses for the Regulator were as follows:
Keith Fayers (Fayers); Leanne Irving (Irving);
Mick Bowe (Bowe); Brandon McDonald (McDonald); Annette Zerner (Zerner); and Susan Stubbings (Stubbings). [12] Note: The Appellant made an application to the Commission on the first day of hearing for an Affidavit of Kevin Stacey (Stacey) to be admitted into the proceedings pursuant to s 92(2)(b) of the Evidence Act 1977. The basis upon which the application was made related to the unavailability of Stacey who was believed to be out of Australia at the time of hearing. The Regulator opposed the admittance of the document on the basis of non-compliance with Directions Orders that had been issued in the matter in addition to identifying other issues including:
potential hearsay; opinion evidence; highly prejudicial information; scandalous material; and material post-dating the incident. The Commission rejected the application to tender the statement in the proceedings on grounds that included:
failure to disclose the document in accordance with Direction Orders; no opportunity for the Regulator to cross-examine Stacey; content of the statement included hearsay and opinion evidence; and of limited probative value. Appellant
Raineri
[13] Raineri, in 2012, was a Protective Security Officer (PSO) with some 20 years' service working in a number of Government buildings in Brisbane, including the Police Headquarters Building (PHQ). In mid 2012 he was working a four day on - four day off rotating shift of 12 hours duration for each shift, working day shift and weekends, but did not include a night shift component.
[14] The PHQ had three entrances, being Garrick Street, Makerson Street and May Street (loading dock). PSOs would usually be located in two positions and there was always one operating as a "floater". The immediate supervision was provided by a Senior Protective Services Officer (SPSO) who generally remained in the communications room. In 2012 that position was held by Fayers.
[15] In 2011 a Building Services Coordinator (BSC) was employed at PHQ with the initial occupant of the role being described as "consultative with everyone". In early 2012 Irving went into that role and at the time she was qualified for the position of BSC and was also an SPSO (in training) which meant she was not a "sworn" person therefore not having powers such as search and detention. In early February 2012 Raineri was approached by Irving and instructed to remain at the front of the building for the entirety of his shift. He refused and was subsequently told by her that she was the SPSO and if he continued to refuse her direction she would demand that he leave the building. Raineri went to the communications room and informed Fayers of the exchange and whilst Fayers was unresponsive at the time, he sent Stacey to relieve Irving.
[16] Raineri entered the lunchroom and was about to consume some food when Irving entered and demanded he leave the area. Irving appeared angry, flustered and spoke to him in a raised voice. Raineri requested that he be allowed to have his break but Irving continued to demand he leave the building throughout the "smoko" break. Raineri then headed out to the Garrick Street entrance and was followed by Irving who continued to demand he leave the building.
[17] Raineri eventually took up his post at the front of the building and some 20 minutes later was summoned to the lunchroom where he met with the Operations Officer from Mineral House, Max Calhoun (Calhoun) to whom he gave his version of events and later returned to the front of the building. Raineri never heard about the incident again and was not the subject of any disciplinary proceeding in relation to the event.
[18] Raineri also performed work at a Police Warehouse (Building 62), a facility at West End that housed police exhibits. His duties in the first instance had been to undertake camera surveillance and conduct patrols when someone left the building. Upon Irving becoming the BSC, the patrols were changed from "regular" to "hourly roles" which resulted in him contacting McDonald and raising concerns that his position as a PSO was at a "higher risk" as he was required every hour to leave a secure area and go to the street. He discussed with McDonald the limited powers of a PSO as opposed to an SPSO but at the time received no response to his complaint. Sometime in May 2012 McDonald started to regularly attend Building 62 at which time he informed Raineri there had been complaints about him performing an inadequate number of patrols. McDonald negotiated a lessor number of patrols with Raineri and denied that he was performance managing him by attending the work site each night Raineri was on a shift.
[19] There was a meeting on 16 May 2012 with a Glen Dyer (Dyer) who was filling in for Bowe, attended by Raineri who had requested McDonald attend. He raised concern about the directive issued by Irving to increase the patrols and questioned again whether he was being performance managed which was denied.
[20] Raineri's evidence went again to his role at PHQ and monitoring of vehicles and persons entering that location. In the case of vehicles, they entered through the Garrick Street entrance and there was a loading dock access through May Street that catered specifically for deliveries. He had returned from his role at Building 62 to PHQ and was required to staff the May Street loading dock between 7.00 and 9.00 am Monday to Friday. To ease congestion a contractor's pass was introduced to allow easier access. On 2 July 2012 Raineri commenced work at the Garrick Street entrance and later that morning he was handed an email [Exhibit 3] addressed to the Shift Supervisor from BSC Irving. The content of the email related to "ALL trucks/vans etc entering the old loading dock with deliveries ie. Startrack, Australia Post/Messenger Post, Toll are correctly recording in the logs for the Garrick Street new and old loading docks". Raineri raised with the person who handed him the email that it seemed "ambiguous" and he telephoned Fayers telling him he wanted to clarify a couple of things. Fayers said he would get back to him later. At some point in time he was continuing to discuss the email with the person who had brought it to his attention when was he interrupted by Irving who became upset with his questioning of her memo asking him to explain why he could not understand a simple memo or instruction. At that time Raineri decided to take his lunch break and headed to the lunchroom. There was an exchange between Irving and himself where she demanded he leave the building or she would restrain him and remove him forcibly. Raineri's evidence was he continued to walk to the lunchroom with Irving continuing to direct him to leave the building which led to Raineri raising the issue of her authority and qualifications.
[21] Irving was said to have responded angrily, with a raised voice, then leaving the area to go to the communication room. Raineri entered the lunchroom and was about to make a cup of tea when Fayers entered the room telling him to remain there as Mineral House had been notified and were coming down. Fayers then exited the room and a short time later Irving entered the room and handed him her training certificates that had been issued by the Training Officer.
[22] Raineri gave evidence of telling Irving to go away and let him have his lunch, but she actually moved closer to him, picked up a box and put it on the table in front of him. She demanded he fill the box with the contents of his locker which he refused. He was then informed Mineral House were coming down to forcibly remove him. Raineri decided to leave the lunchroom, however Irving was "right in his face" seeking to block his exit. At some stage his stomach made contact with Irving's stomach at which time she sought to grab his wrist, telling him she was restraining him in accordance with the Act. She then accused (in a loud voice) Raineri of having hit her to which he replied "I didn't hit you". The method of restraint attempted by Irving was said to be the type used by Police.
[23] Raineri then exited the lunchroom with the intention of going to the toilet where he was intercepted by Irving and informed McDonald was here to see him. He went with McDonald to the lunchroom and gave him his version of the events that had occurred from the Garrick Street issue through until the lunchroom incident. In the course of that meeting the Day Operations Officer, Zerner, entered the room at which time Raineri (on request) demonstrated the way in which the incident with Irving had transpired. McDonald then informed him Irving had alleged he had assaulted her which was the first he had heard of an allegation against him.
[24] Raineri accompanied McDonald to Mineral House where he engaged in an interview that was chaired by Bowe and in attendance were McDonald, Zerner, Terry Webb (Webb) and John Clayvey (Clayvey) who acted as a witness for Raineri. Bowe made no mention of the assault allegation but nevertheless Raineri was concerned about giving his version of events due to Bowe's prejudices. He refused to answer questions until he had seen a police report on the incident but did give his version of the incident regarding the email. The meeting, which lasted about five minutes, concluded without any mention of an investigation or a tape recording of the incident.
[25] Raineri left for Perth (on annual leave) a couple of days after the meeting and started to receive calls from other PSOs where information was provided along the lines that he had "bashed" Irving. He started to feel unwell, was not sleeping properly and described himself as a "wreck". On 10 July 2012, whilst still in Perth, he forwarded a written complaint to the employer regarding misconduct against him by Irving.
[26] On his arrival back in Brisbane on 16 July 2012 there was correspondence from the Human Resources department requiring his attendance at a meeting on 18 July 2012. Raineri sought legal advice, with his Solicitor requesting from the employer "all relevant documentation, video tapes and/or listening devices". Further he requested that the meeting be postponed which was subsequently rejected by the employer. Correspondence from the employer advised there had been no written complaint made against him however allegations were raised verbally by the complainant on 2 July 2012.
[27] On 18 July 2012 Raineri, accompanied by a Solicitor, attended the meeting at Mineral House which, according to his evidence, was also attended by Stubbings who was questioned by his Solicitor on whether she had any documentation on the complaint, her role in the matter and independence. At the meeting Raineri informed Stubbings he would respond on some matters but not offer comment surrounding the allegations of assault. Stubbings gave a commitment at the meeting that on completing interviews he would be provided with any relevant documentation in the following week, giving him the opportunity to inform himself prior to another meeting. A request was made to Stubbings for any recordings of the incident with Stubbings indicating she had nothing. Solicitors acting for Raineri corresponded with the employer on 25 July 2012 requesting any documentation and information in their possession be forwarded within three days and according to Raineri there was no documentation provided within that timeframe or immediately thereafter.
[28] During that period of time he became very upset and stressed through not being contacted by the employer causing his attendance at a medical Clinic on 2 August 2012 where he was prescribed with some medication. Raineri had informed the Doctor of his concerns regarding the employers handling of the allegations against him and was diagnosed as suffering from depression. A medical certificate was issued and other certificates continued to be issued at 12 week intervals. Raineri's evidence was that since the incident of 2 July 2012 he had not returned to work.
[29] Towards the end of August 2012 he received correspondence from Stubbings requesting him to present for an interview with the complaint made by Irving attached to the correspondence. Raineri presented to Mineral House but did not see Stubbings as she was on leave and later after unsuccessfully trying to contact Stubbings was contacted by her and asked to attend a second interview. His Solicitor requested further documentation be provided before he would consent to any further interviews. The investigation was concluded without further participation by him with there being some adverse findings made against him.
[30] Under cross-examination, Raineri acknowledged that his application for workers' compensation had identified an injury happening over a period of time in his employment at PHQ. He had provided an Amended Statement of Stressors (dated 15 July 2013) which contained two additional stressors which were identified as occurring in the period 2 July to 2 August 2012 and being:
the employer relied upon covert recording of interactions involving
Raineri on 2 July 2012; and the appointment of Stubbings to conduct an investigation about the
events of 2 July 2012 [Transcript p. 2-13].
[31] Raineri claimed the stressor relating to the Stubbings investigation was based on the denial of natural justice with the specific event being the meeting of 18 July 2012 [Transcript p. 2-14]. He was aggrieved by that meeting despite having his Solicitor present on the basis of not being provided with any documentation prior to the meeting which affected his preparation. There were also issues with the refusal of the employer to postpone the meeting [Transcript p. 2-20].
[32] On the meeting of 18 July 2012 Raineri agreed that allegations were put to him regarding the incident of 2 July 2012 that included:
he refused a lawful direction from Irving; and he was insubordinate to Irving on numerous occasions [Transcript
p. 2-23].
[33] It was made clear to Stubbings there would be no discussion around allegations of assault [Transcript p. 2-24].
[34] Raineri, in evidence, claimed to have been formally detained by Irving at PHQ on 2 July 2012 [Transcript p. 2-25] and that he repeatedly refused her direction to leave the building as he did not accept it was a reasonable instruction [Transcript p. 2-26]. Under the relevant Act, on that day, Irving had no authority. Raineri had also refused to discuss his own complaint where issues around assault allegations had been made [Transcript p. 2-27] although he claimed Stubbings was not investigating his complaint [Transcript p. 2-28].
[35] On the question of whether it was fair to say that Stubbings (on 18 July 2012) had
put forward all allegations that she had before her in order to get a response, Raineri
conceded that "Well, originally the whole document was put to me, that is, the
th
document of the 18 July" [Transcript p. 2-29]. [36] Raineri confirmed that Stubbings contacted him on 29 August 2012 to confirm he had received the amended terms of reference and he was asked if he wished to have a further opportunity to respond to those terms of reference [Transcript p. 2-30]. He recalled informing Stubbings whilst he was happy to have an interview with her he would not until he had received all relevant documentation [Transcript p. 2-30]. He went on to tell Stubbings he stood by all that was contained in his letter of complaint against Irving [Transcript p. 2-31] and that he was a reluctant participant in the meeting [Transcript p. 2-35].
[37] Raineri, in general terms, accepted that Stubbings had finalised her report in October 2012 but the delay in releasing the report had aggravated his psychiatric injury [Transcript p. 2-35]. He believed that Stubbings had been biased against him in the conduct of her investigation [Transcript p. 2-36]. Raineri accepted that on 2 July 2012 Irving was a BSC and one of his supervisors [Transcript p. 2-37].
[38] Raineri was then questioned regarding a document headed "Application for Claim Review" under his signature which stated:
"Ms Irving's actions in directing me to 'leave the building' were unreasonable as they were made in circumstances where Ms Irving had no authority to direct me to leave the building. If she wished to suspend my employment then she should have done so in accordance with the provisions of the Public Service Act 2008. If she wished to direct me to attend another workplace, which she ultimately did, she should have specified that. It cannot be reasonable for a manager to simply ask an employee to 'leave the building'. SSPO in training, Irving, also deprived me of my liberty by restricting me to the lunchroom in the building. It can never be reasonable management action for an employer to deprive an employee of their liberty."
Raineri accepted the document acknowledged that Irving was his manager and in reference to being deprived of his liberty, it was him who elected to make the decision to leave the lunchroom [Transcript p. 2-40].
[39] Raineri conceded during the day shifts he worked at PHQ between 1 January and 2 July 2012 that when Irving was present, she was one of his supervisors [Transcript p. 2-53]. The incident of 2 July 2012 had stemmed from the email sent by Irving about the completion of the log books which Raineri accepted was a security issue [Transcript p. 2-53]. He had concerns about the email which led him to seek some clarification from Fayers [Transcript p. 2-54]. There was an opportunity to seek that clarification from Irving when she attended the loading dock but he chose not to because of "the way she raised the matter with me was objectionable to me" [Transcript p. 2-54]. In addition she had listened into a conversation he was involved in and demanded to know what was ambiguous about the email [Transcript p. 2-54].
[40] Raineri, on 2 July 2012, had no direct knowledge of what qualifications Irving held but did not believe she was a qualified SPSO who had been sworn in by the Minister [Transcript p. 2-56]. He accepted his position description required him to report to, amongst other persons, the BSC [Transcript p. 2-57] and that Irving's email was part of a work instruction. Raineri had complied with previous email instructions issued on 23 November 2011 regarding Garrick Street loading dock but he required clarification on the instruction from Irving because it did not clarify what had to be entered [Transcript p. 2-59]. Raineri denied Fayers had told him the email was not intended to be a directive, only a reminder of current procedures in place at the Garrick Street entry [Transcript p. 2-60].
[41] Raineri, having experienced Irving previously, was not willing to engage with her about the email although he tried not to be put in a position where she made demands of him [Transcript p. 2-61]. He was unable to explain to her the concerns he had and at a time when she was trying to engage him in conversation about the building manual, he walked away from her. He accepted that Irving told him that if he did not follow the building instruction he should leave the site [Transcript p. 2- 63]. Raineri admitted that at one point he had said to Irving that he had more authority than her and in cross-examination did not accept the proposition that Irving did have authority [Transcript p. 2-63].
[42] Raineri, in respect of the position description for the BSC, acknowledged references to:
exercising functions and powers pursuant to the State Buildings
Protective Security Act 1983; maintaining procedures, general building security; entry of personnel and parking of vehicles; and provide leadership, supervision and training to other staff to persons
such as himself [Transcript p. 2-65].
[43] On 2 July 2012 whilst in the lunchroom Fayers turned up and told him to remain in the area of the lunchroom which he agreed to do [Transcript p. 2-66]. There was no questioning of Fayers with whom he had a good rapport. Raineri did not eventually comply with the instruction because it was not a direction [Transcript p. 2-67]. In the course of having his lunch, Irving returned which led to the exchange taking place. He acknowledged he was upset and angry at that time [Transcript p. 2-68]. He conceded he said words to the effect "Either you go from here or I'll go" but he did not approach her, it was in reverse, she approached him. There was shouting going on but he denied thrusting his stomach, hitting her body [Transcript p. 2-69]. She could have asked him to remain in the building but he was trying to get away from her. He did not dispute he shouted loudly "Leave me alone. Piss off. Leave me alone". Raineri disregarded her instruction because it was an unreasonable instruction [Transcript p. 2-70]. In demonstrating to McDonald and Zerner the incident involving Irving, he could not recall if Zerner referred to it as an assault or if she had used another word [Transcript p. 2-71].
[44] The Mineral House meeting did not go for long and whilst Bowe asked for his version of events, he refused to respond to anything about the assault until he saw a police report. But in response to a question from Bowe about what had happened that morning, he had stated "you know, Mick, or why would I be here" [Transcript p. 2-72].
[45] In his letter of complaint [Exhibit 6] Raineri suggested that he was very emotive at the time it was prepared and accepted the document did not contain words such as "berate" or "aggressively demanded" [Transcript p. 2-74].
[46] Raineri was taken to the previous incident with Irving where he denied he had told her to "get fucked" and "fuck off" but when she approached him in the lunchroom demanding that he leave, it was likely that he told her "go away, just leave me alone" [Transcript p. 2-75]. On that occasion he had no intention of leaving the building when told to do so by Irving, ignored her and walked away [Transcript p. 2- 76].
[47] In terms of medical treatment sought on 2 August 2012 he was there for other reasons as well as the stress-related condition and did not consult a medical practitioner between January and 2 August 2012 in respect of work-related stress [Transcript p. 2-78].
[48] In re-examination, Raineri gave evidence that prior to 2 August 2012 he was not aware of statements from Zerner, McDonald and Fayers (all dated 3 July 2012) and prior to 2 August 2012 Stubbings had not provided copies of the statements.
Dr Storer
[49] Dr Storer, a Consultant Psychiatrist, prepared a medico-legal report [Exhibit 19] at the request of Solicitors representing Raineri (dated 30 April 2013). On 1 July 2013 in response to correspondence from the Solicitors which included the following attachments, Dr Storer confirmed that the additional material had not caused him to alter, supplement or otherwise change his report [Transcript p. 2-44]:
medical records from the Morningside Family Medical Centre; proposed Amended Notice of Appeal; and proposed Amended Statement of Stressors.
[50] In the medico-legal report, Dr Storer diagnosed that Raineri met the criteria for the
following conditions as defined in the Diagnostic and Statistical Manual of Mental
th
Disorders (4 Edition): "Axis I - Clinical Disorders
Adjustment Disorder with Anxiety, Chronic
Axis II - Personality Disorders
There is no personality disorder
Axis III - General Medical Conditions
Type 2 Diabetes
Axis IV - Psychosocial and Environmental Problems
Reported workplace incident leading to disciplinary proceedings
Extended period of leave from work
Axis V - Global Assessment of Functioning
GAF = 65."
[51] Dr Storer opined that Raineri had suffered from a diagnosable psychiatric disorder as a result of the workplace events (noted) and that the stated mechanism of injury was consistent with his current condition. Those workplace events were a significant contributing factor to the development of his condition. There were no reported non-work related factors contributing to his condition.
[52] Under cross-examination, Dr Storer gave evidence that in the preparation of the medico-legal report he had access to information, identifying the rejection of Raineri's WorkCover claim and his Appeal to Q-COMP significant enough to include in his report [Transcript p. 2-48]. In terms of the additional stressors contained in the amended statement of stressors which were not available at the time of completing the report, they were considered by him to be "further significant contributing factors" [Transcript p. 2-49]. The injury diagnosis was as a result of Raineri's reaction to the stressors and his perception of things [Transcript p. 2-49].
[53] In re-examination Dr Storer recalled that Raineri initially had related to him the investigation that had been undertaken and the upset it had caused him. Dr Storer did have Stubbings' report but had no recollection of there being covert recordings. The failure to record that some angst existed with Raineri about the investigation was explained in the following terms:
"No, that's right. I mean, looking at significant stressors, I thought - at the time that I saw him, I thought they were the ones that were most significant." [Transcript p. 2-50]
Regulator
Fayers
[54] Fayers, a SPSO was Raineri's supervisor in July 2012 at PHQ with Irving the BSC which meant she was a "go-between" person between the security and building management looking after directives and was basically Fayers' superior.
[55] On 3 July 2012 he completed a statement [Exhibit 26] in respect to the incident of 2 July 2012 involving Raineri and Irving. On 2 August 2012 he was interviewed by Stubbings regarding the same incident [Exhibit 27].
[56] The statement of 3 July 2012 contained the following passages:
"At approximately 0945 hrs I instructed PSO K. Monico to take an email from
th
BSC L. Irving that had been received on the 27 June, to the Garrick Street Security point and to give it PSO J. Raineri to read and to leave it there for all
Security Officers…
A short time later PSO Raineri phoned me and stated that this was not a directive and he did not recognise it as such. I advised PSO Raineri it was not intended to be a directive, only a reminder of our current procedures which are in place at the Garrick Street entry point. I advised BSC L. Irving what had
transpired…
I entered the lunch room to speak with PSO Raineri and before I could say anything and to my recollection he said something to the effect of 'I don't want to speak to you now. Leave me alone go away' in a dismissive manner. He was speaking louder than normal. His demeanour was extremely angry, unprofessional and inappropriate and goes against 'The Code of Conduct'. After he finished speaking I directed him to stay in the lunch room until further notice and then he questioned me as to why he should and that he was going out to the Atrium point to relieve SPO K. Stacey who had already had his meal break.
PSO Raineri stated he was not going to stay in the lunch room even though being his immediate Supervisor I had directed him to do so."
[57] In the statement of 2 August 2012, Fayers provided information that included:
when Raineri was on day shift the BSC was his supervisor; in November 2011 BSC Peter Hartmann introduced a new vehicle
logging process for Garrick Street security point; since the introduction of the log (November 2011) Raineri had
completed such log; he had not heard a tape recording (mentioned in his statement); since Irving had commenced at PHQ Raineri had consistently acted
hostile towards her. Raineri did not afford Irving respect; Raineri was not singled out or targeted as a result of his industrial
activity or involvement in workplace health and safety; and Irving treats all staff equally.
[58] Under cross-examination, Fayers was required to respond to numerous questions in relation to the role of the BSC, providing evidence of tasks:
liaison between management and Security Officers; worked on the security team communicating directives; breakdown of role - 60 per cent liaising with the client, 40 per cent with
the Security Officers [Transcript p. 2-87].
[59] Fayers' role involved supervision of three officers, emails, rotations through different points in the building and if an issue arose with the PSOs they should raise it with him [Transcript p. 2-88]. Fayers agreed that he was the Manager of the team and the BSC was more of a Supervisor [Transcript p. 2-88]. If issues arose involving the BSC he would go to the Operations Officer [Transcript p. 2-89]. There was a previous issue with the BSC and a Security Officer which he did not refer to the Operations Manager, allowing the parties to sort it out [Transcript p. 2- 90]. Fayers accepted the proposition that performance management issues ought to be dealt with by line management at Mineral House. Although since the commencement of Irving he assumed she would take on the role of performance management [Transcript p. 2-91]. Fayers later conceded that in his vast experience with the service he had not known a BSC on their own volition to have started a performance management process [Transcript p. 2-92].
[60] Fayers gave evidence around the changes to the new vehicle logging process for the Garrick Street entry point and about the different level of passes for certain couriers and contractors [Transcript p. 2-94].
[61] On 2 July 2012 Fayers instructed Ken Monaco (Monaco) to leave the email of 27 June 2012 from Irving in the diary at the back gate so that everyone knew what was going on [Transcript p. 2-96]. He received a call from Raineri who was refusing to accept the email as a directive to which he replied by stating "it's not meant to be a directive. It's just a reminder to reiterate on what your duties are". Fayers gave an explanation on the difference between a directive and an instruction indicating that directives had to be followed. The email in question was not meant to be a directive but was a reminder [Transcript p. 2-97].
[62] Fayers gave evidence the email of 27 June 2012 [Exhibit 3] could have been somewhat confusing in that there was no mention of the "green passes" [Transcript p. 2-99] accepting that some people may have found it ambiguous. On the direction from Irving to Raineri to leave PHQ on the morning of 2 July 2012, Fayers accepted the proposition that you would need to be a sworn SPSO to facilitate such a direction and at the time Irving had not been sworn in although she was acting in the position [Transcript p. 2-100]. He agreed Irving did not have the authority as she had not been sworn in at the time [Transcript p. 2-101]. The role of the BSC did not include the authority to detain or compel a person to leave the building [Transcript p. 2-102].
[63] On 2 July 2012 Fayers formed the view the situation between Irving and Raineri had deteriorated to the point where he went to the lunchroom to talk to Raineri following a request to do so by Irving. Prior to leaving his office Irving put a tape recorder in his pocket which left him feeling uncomfortable. Fayers thought it was unfair on Raineri to tape him [Transcript p. 2-105]. He told him Irving wanted him to stay in the lunchroom but he did not formally direct him to do so. Fayers agreed that he just delivered a message and walked out [Transcript p. 2-106]. He had no further involvement with Irving basically taking over [Transcript p. 2-107].
[64] In re-examination Fayers identified the State Buildings Protective Security Act 1983 as containing the provisions of detention or removal from buildings.
Irving
[65] Irving, a BSC with State Government Security, was sworn in as a PSO on 14 February 2011 and in July 2012 as a BSC she looked after three locations for the Queensland Police Service which were:
PHQ; West End Supply Centre (Building 62); and Alderley Police Depot.
[66] Irving was, at the time, an SPSO in training but as she had not been sworn in she did not have the powers provided for under the State Buildings Protective Security Act 1983. She was subsequently sworn in as an SPSO in September 2012.
[67] In February 2012 in her role as the BSC at PHQ she had cause to approach Raineri to tell him he was required to complete the shift at the front counter. Raineri became angry and aggressive about having to carry the extra workload and walked off to the "bunker". Raineri returned later to the front counter and such was his behaviour told him to go for another walk. She was replaced on the front counter and when she entered the meal room found Raineri having a beverage. He told her to "go away and leave me alone" and then got up and walked away coming back later pulling a door open with such force that it hit the filing cabinet with a force that it vibrated through the building. She followed attempting to engage him in conversation with him telling her to "fuck off" and repeated the comment in front of a number of police officers. Irving contacted an officer at Mineral House who agreed to come to PHQ and talk to Raineri. After a conversation with Fayers she later spoke to Raineri saying the incident was over but if he ever spoke to her again in that manner she would have no problem writing him up. Raineri apologised for his behaviour.
[68] There was another issue, this time at West End Supply Centre where a request was received from the Officer-In-Charge following an incident for hourly patrols to be undertaken by the PSO's. There was an instruction issued and Raineri was spoken to about the increase in patrols. Several Officers approached Irving to express concerns on the failure of Raineri to conduct the hourly patrols. This resulted in her consulting McDonald and requesting his removal from the site.
[69] On the morning of 2 July 2012 Fayers informed her he had been contacted by Raineri who told him he was not going to comply with the email of 27 June 2012 as it was not a direction. Irving went to the Garrick Street entry for the purposes of speaking to Raineri and on arrival overheard Raineri refer to the email as "ambiguous". She attempted to discuss the matter with him drawing his attention to the building instruction manual but he refused to speak to her. She told him if he was not going to follow building instructions or listen to her, he could pack his belongings and report to Mineral house. He pointed his finger at her and said words to the effect "I have more authority than you in this building". His manner was threatening, leading her to tell him to go to the meal room and remain there until otherwise directed.
[70] She followed Raineri part of the way before going to Fayers' office to report what had occurred in respect of his refusal to take any direction from her. Fayers was asked to have him remain in the meal room whilst arrangements were made to have the Operations Manager come from Mineral House to the site. She activated her voice recorder and told Fayers to record his conversation with Raineri due to several work conduct issues from the previous three months. There was a conversation with her direct supervisor (Zerner) and arrangements for McDonald to attend site were agreed.
[71] Fayers returned informing her Raineri was not going to stay in the lunchroom which prompted to go to her office and collect documentation regarding her qualifications as a BSC and having done the SPSO course. She was hopeful once he realised she was qualified in those areas he would sit down with her. Raineri was approached in the meal room at which time he yelled at her to "go away". Irving asked him to remain in the room at which time he came towards her, thrusting his stomach at her forcing her back three or four steps. He was warned that if he was to hit her again she would physically restrain him. He told her to "piss off" and came at her again with force which resulted in her connecting with his right shoulder which had them both hitting a locker. At that stage she thought that Raineri was about to punch her and she sought to restrain him. She told Raineri that he had physically hit her which he denied and she released him when he said words to the effect "stop torturing me". Irving was clear (through her background) that Raineri had assaulted her. Shortly thereafter she told him to get his belongings and leave the building although it was her evidence that at no time did she give him an official direction. Raineri refused to leave the building, telling her to piss off. He told her that she was not his boss "just the bane of my employer".
[72] On the basis of having been assaulted, she again contacted Zerner and told her she wanted him out of the building. McDonald had arrived on site and she took the opportunity to update him on what had occurred. Irving went to the atrium area of the building where she noticed her husband (a serving Police Officer) but before she could talk to him Raineri walked past heading toward the front security counter. Raineri was approached and told to go back to the meal room which he refused to do until McDonald arrived in the area. Along with Zerner, she spoke to Monaco about the earlier incident at the loading dock and played "part of" her tape recording to Zerner, of the exchange with Raineri. Irving later attended Mineral House where she made a fresh complaint of assault against Raineri.
[73] Under cross-examination Irving was clear that on 2 July 2012 Raineri had assaulted her and spoke to both McDonald and Zerner about the incident when they arrived at PHQ. McDonald was only partly briefed as she had to go to see her husband [Transcript p. 3-24] and in the case of Zerner her direct supervisor, she spent no more than ten minutes with her and was unable to recall the detail of their discussion but did recall playing the tape recording of the conversation with Raineri [Transcript p. 3-27]. Zerner took no notes during their meeting [Transcript p. 3-28]. Irving regarded the exchange with Zerner as a discussion not an interview. It was possible Zerner listened to the full recording which lasted seven minutes [Transcript p. 3-29]. In the discussion with McDonald which lasted three to four minutes he took notes [Transcript p. 3-30].
[74] Irving went to Mineral House about an hour after the incident and was able to give her version of events in a meeting attended by Bowe, Terry Webb (Webb), McDonald and Zerner [Transcript p. 3-33] but was upset at the end of the meeting when Raineri was allowed to return to PHQ and Bowe would not allow her to do the same [Transcript p. 3-34].
[75] Irving was questioned regarding a statement prepared by McDonald which recorded, in bullet point form, details of what she had told him upon his arrival at PHQ on 2 July 2012. Irving accepted the statement reflected the overall version of events given to McDonald. Irving confirmed McDonald's notes contained no reference of a series of assaults [Transcript p. 3-37].
[76] Irving was given the opportunity to peruse a statement prepared by Zerner of 3 July 2012. The statement mentioned listening to a taped conversation rather than a "part of the tape" [Transcript p. 3-39]. Zerner's statement mentioned Raineri pushed Irving with his belly so he could pass with Irving acknowledging it made no mention of a series of rolling assaults. Irving disagreed that Zerner's statement reflected all what she had told her on the day [Transcript p. 3-40]. She went on to express the view that Zerner had been given the full version of events and she did not believe Zerner's statement. Irving conceded there was no mention of a rolling series of assaults [Transcript p. 3-43] with Irving questioning whether Zerner had read the statement before she signed off [Transcript p. 3-44].
[77] Irving was questioned regarding a document "Meeting Notes 2 July 2012" prepared by Webb with Irving again disputing the content of this document. The document contained no reference to a rolling series of assaults nor was there a mention of any "threats" said to have been levelled against her by Raineri [Transcript p. 3-49].
[78] Irving was questioned regarding a statement [Exhibit 30] completed by her over a period of time between 2 and 16 July 2012. The statement had been prepared off a tape recording of the incident with Raineri, with Irving giving evidence that she had faithfully recorded (from the tape) and was confident of the accuracy [Transcript p. 3-55]. The tape had been offered to Stubbings at the interview (18 July 2012) but had not been accepted at the time due to concerns regarding legal ramifications [Transcript p. 3-56]. About a month or two after the interview she was told the tape would have to be provided to Raineri and it would be up to him whether it could be used by the employer to which Irving replied "Well, with all due respects it's - it's either everyone gets it or no one gets it" [Transcript p. 3-56]. She told Webb if she was subpoenaed she would hand the tape over [Transcript p. 3-57]. Irving no longer had the tape as it was deleted by another member of staff who had borrowed her recorder [Transcript p. 3-58]. Irving did not accept that her statement had been written to bolster her evidence [Transcript p. 3-64]. It was said to be "an annoying coincidence that it got taped over" [Transcript p. 3-66].
[79] Irving did not accept that in the course of the incident with Raineri she had shouted loudly on two occasions "you hit me" for the purposes of the recorder but did accept there was nowhere in her evidence before the Commission mention of any allegation that Raineri struck her with his hands [Transcript p. 3-67].
[80] Irving, after some initial dissention, accepted that if there was a practice at the Garrick Street entry of allowing vehicles with green passes to enter the building without being logged, then her email of 27 June 2012 might be "somewhat confusing" [Transcript p. 3-69]. Her purpose for attending at the Garrick Street entry on 2 July 2012 was the advice from Fayers that Raineri was not going to comply with her email unless it was a directive from Fayers [Transcript p. 3-69]. Irving denied she was "fuming" at the time. It was another example of Raineri not following her instructions and when she approached him her tone was conciliatory [Transcript p. 3-70]. Irving conceded when Raineri was unwilling to follow building instructions or listen to her, she had told him "you can pack your belongings and report to Mineral House and explain to them why I've sent you there" [Transcript p. 3-71].
[81] Irving gave evidence regarding her role as a BSC at PHQ and of the process relied upon to review procedures at that building [Transcript p. 3-75]. A number of questions were put and answered around the position description [Transcript p. 3- 76]. On reporting for PSOs on daytime duties they were required to report to the BSC [Transcript p. 3-77]. At PHQ her role did not contain the power to performance manage [Transcript p. 3-78]. She accepted the proposition she could have stepped away from the conflict with Raineri at some point, however Raineri's past performances had potential to cause some drama in an operational building [Transcript p. 3-80]. Irving in terms of power held by a BSC did not have the capacity to "put on a performance management process" but could remove a person from a building under the Criminal Code for trespass if the BSC believed that person was creating a disturbance in the building [Transcript p. 3-84]. Irving claimed that she had never directed Raineri to remain in the lunchroom but "asked him to stay" [Transcript p. 3-84]. There was an authority as the BSC to instruct Raineri to remain in the lunchroom as he was causing a disturbance and she did not want him to go to the front of the building and continue that disturbance [Transcript p. 3-86]. In terms of her physical interaction with Raineri, it was said to have occurred as "self-defence" [Transcript p. 3-86]. Irving denied that in February 2012 she had demanded Raineri leave PHQ [Transcript p. 3-90].
[82] The issues with Building 62 came about following a negotiation with the client who had sought an increase in patrols to one an hour. Three PSOs working at the location informed her Raineri was not complying with the requirement to carry out the increased patrols [Transcript p. 3-93]. She requested McDonald not to roster Raineri at Building 62 and was not aware of any workplace health and safety concerns that were raised with McDonald around the increase in patrols.
[83] Irving denied a version of the lunchroom incident of 2 July 2012 which had her saying to Raineri:
"You are to leave the room You are detained You must not leave this area You are no longer working in this building" [Transcript p. 3-96].
[84] The situation changed after she was assaulted by Raineri. She denied that she had stood in front of the lunchroom doorway blocking Raineri's exit and repeated he was not detained to that room [Transcript p. 3-98]. At no time did she give Raineri an "official direction" [Transcript p. 3-99]. Irving conceded she had never successfully restrained Raineri and disputed the version offered by Raineri regarding her actions on the day [Transcript p. 3-101].
[85] Irving agreed that her version regarding the lunchroom incident (of 2 July 2012) had her following Raineri after he had assaulted her multiple times going on to state:
"And so, no, I didn't walk out because I was in fear of my life. I didn't want to get hit again. I'm not someone's punching bag. I didn't want to be hit; I restrained him from hitting me. Was I in fear of my life? No" [Transcript p. 3-103].
Irving never raised a complaint of assault with the Queensland Police Service
[Transcript p. 3-103].[86] In re-examination, Irving's evidence was that "they" were informed if at any time her complaint of assault was not going to be investigated to what she perceived as a proper manner she would make the complaint straight to police.
Bowe
[87] Bowe, a Senior Operations Manager with State Government Security, recalled in evidence the events of 2 July 2012 where upon being informed of an issue at PHQ between Raineri and Irving he requested McDonald and Zerner to attend the site and report back to him.
[88] McDonald was the first to report back at which time he asked them to bring Raineri back to Mineral House. At a meeting attended by Zerner, McDonald and Webb he asked Raineri to provide his version of events from the morning. Raineri said that he (Bowe) was aware of what had happened because Irving had sent an email. Raineri refused to discuss what occurred because he did not have a police report or Irving's statement. Raineri had a support person with him and in the course of the meeting that may have taken up to 45 minutes, it was the case that Raineri provided some background about a new procedure that was being put in place, going on to accuse Bowe of asking Irving to "provoke him or set him up".
[89] Bowe requested the allegations be clarified and informed Raineri he would pursue those allegations separately. He sent Raineri back to PHQ at the conclusion of the meeting and then met with Irving who had been brought down to Mineral House to give her version of event including:
contact from Fayers about Raineri questioning procedure at the back
gate; lunchroom incident; and Raineri had pushed past her with his belly and she had pushed back.
[90] Under cross-examination Bowe was taken to Zerner's statement regarding the 2 July 2012 incident and confirmed that the reference to Raineri coming into contact with Irving with his belly was the same as his recollection in terms of contact [Transcript p. 3-111]. When questioned regarding the notes by Webb of the 2 July 2012 meeting where Irving had told the meeting Raineri had used his belly to push me out of the road, Bowe indicted that was consistent with his evidence given to the Commission [Transcript p. 3-112].
[91] Note: The document was tendered without objection on the basis that Bowe had completely identified the notes as deriving from the process [Exhibit 31].
McDonald
[92] McDonald, an Operations Manager with State Government Security, had held that position since February 2012.
[93] He gave evidence of having discussions with Raineri in May 2012 about extra patrols at Building 62 which had been instigated by Irving and seen by him (Raineri) as a personal attack on him. He informed Raineri it was not a personal attack as all Officers were required to undertake the patrols. Raineri was informed if he did not complete the required patrols he would be removed from the site. Raineri committed to making an effort to complete the patrol requirements because McDonald had asked him to do it.
[94] On 2 July 2012 following discussions with Zerner and Fayers about an incident at PHQ involving Irving and Raineri, he attended the site. Upon arriving at the Garrick Street entry he was greeted by Irving who told him about encountering Raineri at the back gate where an argument took place and when he became rude and aggressive she told him to remain in the lunchroom and he would be required to attend Mineral House to explain his actions.
[95] McDonald started to take notes at which time Irving was called away only to return and inform him Raineri was standing in the atrium of PHQ and McDonald was requested to remove him. He went to that section of the building where he found Raineri agitated and upset. They headed off to the lunchroom where Raineri told him of a direction for the back gate which he felt was a contradiction or unclear and of the heated exchange with Irving at the back gate. She had told him to stay in the lunchroom which he felt was unnecessary and had physically tried to keep him in the room. Raineri re-enacted what occurred in terms of the physical exchange and did the same when Zerner arrived a short time later.
[96] There was a discussion between himself, Zerner and Irving and amid allegations of assault it was decided he take Raineri to Mineral House where there was a meeting held with Bowe, Zerner, Webb and Raineri. He was unsure about the length of the meeting forming the impression Raineri was unhappy and felt an injustice had occurred. There seemed to be an inordinate amount of time talking about the back gate directive and not the incident that had occurred. Most of the discussion was between Raineri and Bowe. At the conclusion of the meeting, Bowe sent Raineri back to PHQ and advised there would be a meeting with Irving to get her version of events.
[97] McDonald dropped Raineri off at PHQ with Irving accompanying him back to Mineral House. Irving was upset and quite animated with her description about what had happened, claiming she had been assaulted by Raineri who was said to have pushed his way out of the meal room, past her.
[98] McDonald gave evidence of being interviewed by Stubbings on 2 August 2012 who had a copy of a written statement prepared by him 24 hours past the 2 July 2012 incident.
[99] Under cross-examination, McDonald confirmed he had informal discussions with Irving prior to 8 May 2012 where she had asked him not to roster Raineri at Building 62 because he was not doing all the patrols required of him [Transcript p. 4-10]. McDonald, when he raised the matter, could not recall the patrol increases as having workplace health and safety issues [Transcript p. 4-12]. Raineri continued to remain at Building 62 (for his night shifts) until 2 July 2012 and was not formally performance managed [Transcript p. 4-14].
[100] On his arrival at PHQ on 2 July 2012 it was his evidence Irving had every opportunity to tell all she wanted to tell and he had taken notes of their conversation making the notes as detailed as he could at the time [Transcript p. 4-15]. Mc Donald accepted it was a common feature of both Raineri and Irving's versions that initial physical contact was made with Raineri's stomach when he sought to leave the room and a responding physical action by Irving [Transcript p. 4-16].
[101] Evidence regarding the re-enactment of the doorway incident produced the following comments from McDonald:
"It was not something that two people would walk beside each other going
through in a normal sense" [Transcript p. 4-17].
"If two people were to try and stand side by side, one may be touching the
lockers, from what I recall, yeah" [Transcript p. 4-18].
"Well, a space meant for one person" [Transcript p. 4-20].
[102] On whether two people moving to that space at about the same time could be described as an assault he stated:
"As far as I am aware, an [un]invited contact with someone constituted -
constitutes an assault" [Transcript p. 4-20].
Zerner
[103] Zerner, a Security Officer with State Government Security, also a sworn SPSO gave evidence of receiving two phone calls from Irving on 2 July 2012 about problems with Raineri and of him becoming physical. On arrival at PHQ she was given a copy of the email that had been sent and then went to the control room where Fayers informed her Irving was in the lunchroom. She found Irving (away from the lunchroom) and whilst she headed back towards the lunchroom Irving played her a recording of the incident with Raineri.
[104] After speaking to Irving she returned to the control room (before going to the lunchroom) where she saw Raineri and McDonald. She was shown what had occurred in the door way, following which she informed Raineri that his actions could be regarded as an assault because it was "unwarranted touching or striking".
[105] Zerner returned to Mineral House where she participated in the previously mentioned meeting with Bowe and others. Prior to her return to Mineral House it was her observation that neither Raineri nor Zerner seemed upset or stressed.
[106] The first meeting (with Raineri) went for 15 or 20 minutes during which Raineri expressed a view that Bowe was encouraging Irving to treat him differently than other officers, by giving him a hard time. The second meeting (with Irving) went for about 45 minutes to an hour where they went through the events of the day and at the conclusion Irving was "a bit upset" because she was required to complete her shift at Mineral House whilst Raineri had been sent back to PHQ.
[107] Under cross-examination Zerner recalled the first phone call she received on 2 July 2012 was between 9.00 and 10.00 am with her evidence being at no time did she actively encourage Irving to deal with Raineri, most likely to have said to McDonald "there's problems" at PHQ [Transcript p. 4-29]. She had no difficulty with Irving going back into the lunchroom to show Raineri her certificates despite there being a number of issues with shift officers about her lack of qualifications [Transcript p. 4-29]. Zerner could not recall if she had mentioned to Irving that McDonald was to come to site [Transcript p. 4-30]. Zerner conceded that she did not have a particularly good recollection of what she heard on Irving's tape [Transcript p. 4-31]. She did get a version of what occurred from Irving which was committed to writing in the form of notes [Transcript p. 4-31]. The notes were used when she prepared her statement after the Mineral House meeting [Transcript p. 4- 32].
[108] Zerner was taken through the statement prepared on 2 July 2012 including reference to her notation "Leanne stated that Joe Raineri tried to push her out of the way with his belly" which was described as and accepted by Zerner as a "consistent reference" [Transcript p. 4-35].
[109] Zerner was shown the notes taken by Webb [Exhibit 31] of the meeting on 2 July 2012 where Irving was quoted as saying "He said he wasn't interested and used his belly to push me out of the road". Zerner's memory was refreshed in the context of Raineri trying to leave the room [Transcript p. 4-35]. She accepted the proposition it was never the case that Irving said that the push with the belly was specifically directed at her [Transcript p. 4-36].
[110] Zerner had a "fairly clear" memory of the re-enactment involving Raineri and McDonald playing the role of Irving that demonstrated he was trying to get past [Transcript p. 4-39]. She agreed if two people tried to leave that room at the same time, some incidental contact was likely [Transcript p. 4-40].
[111] At the point in the re-enactment when contact was made, Zerner recalled having made the comment "Hey, that's an assault" [Transcript p. 4-40]. Zerner retained her view the contact was an assault [Transcript p. 4-41] although she did not accept (hypothetically) if she was standing in front of a lift (not moving) and someone walked into her that would constitute assault [Transcript p. 4-41].
[112] Zerner recalled that she mentioned Irving's tape to Bowe, probably on 3 July 2012, but could not recall mentioning it to Stubbings although it was possible [Transcript p. 4-43].
Stubbings
[113] Stubbings is an Industrial Relations Specialist with Queensland Urban Utilities, who in July 2012 was employed by QBuild as a Senior Employee Relations Advisor. On or around 11 July 2012 she was appointed to conduct an investigation in relation to the incident at PHQ on 2 July 2012. She undertook a number of interviews with various individuals prior to releasing the report on 8 October 2012.
[114] Note: Initially objection was raised by the Appellant to the tendering of the report on the basis of:
fairness; report published in October 2012 - post-dated stressors; and prejudice.
[115] The argument around the tendering of the report was significant to the extent it occupied some 21 pages of transcript.
[116] Following an adjournment, Counsel for the Appellant informed the Commission of being instructed to withdraw the objection on the basis of the previous discussions which, in effect, was that pages 12 through to 46 (inclusive) were to be disregarded by the Commission. Attachments to be disregarded (by agreement) were identified as 11, 13, 14, 17, 18, 20, 25 and 26. Other sections of the report were identified as being considered with the Commission apportioning certain weight to that evidence.
[117] Stubbings gave evidence that she was happy to stand by the contents of her report and made no alterations. The report was finally tendered in the proceedings [Exhibit 35].
[118] Under cross-examination, Stubbings advised that Allan Lally (Lally) had appointed her to carry out the investigation and agreed after some posturing, that the complaint from Irving was the subject of the investigation [Transcript p. 4-72]. The matter to be investigated was Irving's suggestion that Raineri had assaulted her [Transcript p. 4-72]. At the time of the commencement of the investigation, Stubbings had no written complaint or material, direct from Irving [Transcript p. 4-73]. There was no reference in the letter of appointment of a written complaint having been made by Raineri at that point [Transcript p. 4-73].
[119] Stubbings had conducted many investigations previously and indicated she was very aware of the principles of procedural fairness, prejudicial information and the more prejudicial information against a person the more important the requirement to let them know about it [Transcript p. 4-74]. Many of the complaints previously investigated by her did not necessary derive from a particular written complaint but as a result of an event occurring in the workplace but more often than not an investigation would commence upon receipt of a grievance or complaint [Transcript p. 4-74]. Stubbings conceded that investigation commenced by a document was a "little easier" [Transcript p. 4-75].
[120] Stubbings was questioned regarding correspondence from Lally to Raineri (dated 11 July 2012) advising of the investigation of certain allegation regarding an alteration between him and Irving at PHQ on 2 July 2012 [Exhibit 7] which she agreed added little detail beyond what was contained in the terms of reference [Transcript p. 4-76].
[121] An interview was scheduled with Raineri for 18 July 2012 and in the intervening period a complaint from Raineri was received which raised allegations of assault by Irving against him which led to the terms of reference being changed in August 2012 to include Raineri's allegations [Transcript p. 4-77].
[122] Upon commencement of the investigation Stubbings knew that:
management persons had gone to PHQ on 2 July 2012 to interview
witnesses; there had been a series of meetings at Mineral House; some documentary material generated from the process; meeting notes would be available; and early statements may have been provided [Transcript p. 4-78].
[123] Stubbings accepted that Zerner had made a statement on 3 July 2012 that referenced the existence of a recording taken by Irving and the recording had been played on the day of the incident. Zerner had also expressed a view that Raineri had perpetrated an assault against Irving. Stubbings agreed these factors were potentially adverse to Raineri [Transcript p. 4-79]. Stubbings also agreed that a portion of a statement from McDonald (dated 2 July 2012) contained facts and information potentially adverse to Raineri's position [Transcript p. 4-80]. Meeting notes [Exhibit 31] from the meeting at Mineral House on 2 July 2012 were also agreed by Stubbings to contain information and evidence that was potentially prejudicial to Raineri's position [Transcript p. 4-80].
[124] In the interview with Irving on 18 July 2012 Stubbings was for the first time informed of a recording of the incident and offered a copy. Stubbings advised that she did not want a copy, feeling uncomfortable in receiving the recording without seeking legal advice due to her limited knowledge of the Invasion of Privacy Act 1971 [Transcript p. 4-81]. In the end, Stubbings neither received a copy of the tape nor listened to the content [Transcript p. 4-82]. Stubbings did not accept the proposition that the evidence "sitting on that recording" was the most important evidence available [Transcript p. 4-82]. The instructions from the legal unit had been not to obtain the tape without Raineri's permission which was never sought [Transcript p. 4-82].
[125] Stubbings had assured both Raineri and his legal representative on 18 July 2012 that after all witnesses had been interviewed and all information obtained a second interview would be held to allow him to respond [Transcript p. 4-83]. Documentation forwarded from Raineri's Solicitors on 16 and 17 July 2012 regarding the proposed interview with Raineri on 18 July 2012 had not been sighted by her at the time [Transcript p. 4-86]. Stubbings was of a view that if all the material was available to him prior to the interview it would have helped [Transcript 4-87]. Stubbings had asked Lally (at the time of receiving the terms of reference) whether there was any documentation but received none [Transcript p. 4-87]. Stubbings conceded she had not enquired of Webb or Bowe about notes from the Mineral House meeting [Transcript p. 4-88].
[126] Stubbings had attempted to convene a second interview with Raineri where it was her intention to present him with statements from other individuals [Transcript p. 4- 90]. Stubbings did not accept allegations from Raineri's Solicitors that he had been denied procedural fairness [Transcript p. 4-91]. Raineri had not attended a second interview despite the effort of Stubbings to arrange a subsequent interview [Transcript p. 4-92]. Had Raineri attended the second interview, he would have been provided with all the relevant material and not ambushed [Transcript p. 4-96].
Submissions
Regulator
[127] The Regulator submitted that the Appellant had failed to particularise in the Application for Compensation how the alleged injury occurred and it was only in his Amended Statement of Stressors that the events giving rise to his asserted injury were identified. Out of the nine alleged stressors, the Appellant was only really aggrieved about the event between himself and the BSC (Irving) on 2 July 2012. Matters pre-dating and post-dating the relevant event of 2 July 2012 were subject to evidence, however in reality it was the 2 July 2012 incident that was the focus of the Appeal. The other alleged matters relied upon by the Appellant cannot be categorised as anything other than reasonable management action taken in a reasonable way or the Appellant's perception of matters (if indeed such events are found to occur).
[128] The legislation relevant to the proceedings was s 32 of the Act with the matter being a hearing de novo in which the onus of proof rests with the Appellant.
[129] An attachment to the submissions provided a brief summary of the salient features of the evidence of all witnesses in the proceedings.
[130] There was no issue in relation to the Appellant being a "worker" for the purposes of the Act, however the following elements are contested and the need for (a)(b) and (c) to be satisfied particularly before considering the application of s 32(5) of the Act:
"(a) that he has suffered a personal injury; (b) that the injury arose out of or in the course of his employment; (c) that the employment is significant contributing factor to the injury; (d)
that the operation of s. 32(5) is excluded, that is, it is shown on the balance of probabilities that any psychological or psychiatric disorder has not arisen out of or in the course of reasonable management action taken in a reasonable way in connection with the Appellant's employment."
Personal Injury
[131] The Appellant had failed to demonstrate this threshold issue because the relevant contemporaneous medical records relied upon were almost non-existent and the diagnosis of Dr Storer post-dates the claimed period having first assessed the Appellant on 29 April 2013, some eight months after the Application for Compensation was made.
[132] The medical certificates (save for one) post-date the Application for Compensation (16 August 2012) and were as a consequence, irrelevant. The medical certificate issued by Dr Gabriel (General Practitioner) labelled a diagnosis of depression on 2 August 2012 based on a background provided by the Appellant of developing symptoms of depression through problems at work. Curiously the certificate contains no reference to the primary incident of 2 July 2012.
[133] The medical notes of the practice shows no record of treatment for anxiety or depression between 1 January and 1 August 2012. The entry on 2 August 2012 records matters including:
stressed from work-related issues; feeling anxious; no previous problems in the past; panic attacks; clinically depressed; and made complaint at work and has been stressed since due to reaction from
workforce.
Again no reference to the stressor - 2 July 2012 incident.
[134] The Appellants next attendance at the practice was 16 August 2012 for an unrelated issue with no mention of alleged depression from 2 August 2012. The Regulator was unable to cross-examine Dr Gabriel about the veracity of the certificates or entries, which was of concern.
[135] Given that the Appellant is claiming an injury over a period of time the test to be
1
applied was summarised in the decision of Ward v Q-COMP where Hall P determined that in the absence of an employee experiencing pain or pain over a period of time it was difficult for the Commission to determine whether there was an injury or not.
[136] In the matter of Forden v Q-COMP[2], Magistrate Lee stated:
"I am encouraged to find that one can sustain an injury over a period of time even though there may be no symptoms because symptoms are only further evidence of 'injury'. Assuming this to be so, 'injury' then might exist in the absence of symptoms. But one wonders, in the absence of symptoms, what evidence could be adduced in this respect to support a conclusion on the balance of probabilities that there is 'injury'."
[137] The present situation is one where the Appellant is asking the Commission to determine he sustained an injury in the workplace in the absence of contemporaneous reporting.
[138] On the limited medical evidence it was submitted the Appellant was unable to meet the threshold issue sufficient to find he sustained a "personal injury" for the purposes of s 32(1) of the Act.
Arose out of or in the course of employment
[139] If it was to be found that a personal injury exists for the purposes of the Act, the Regulator concedes it would be difficult to make a legitimate submission under this preliminary issue.
Is employment a significant contributing factor to the injury
[140] Careful consideration should be given to the opinion expressed by Dr Storer in that he relied upon the original Statement of Stressors and Notice of Appeal having no regard for the amended version of the same documents for his report of 30 April 2013. There was no reference in the report of the Appellant's subsequent reliance upon the Amended Statement of Stressors and, in fact, it was only in the lead up to the original hearing of this Appeal that Dr Storer was asked by the Appellant's representatives to clarify his opinion.
[141] In these circumstances caution should be exercised in accepting the weight of Dr Storer's opinion.
Is the injury removed from the definition of injury by virtue of s 32(5) of the Act
[142] The law has been established in that the Commission needs to look at the reasonableness of management action in all the circumstances of the case and determine overall whether the management action is objectively reasonable. Whilst a workers' perception may be relevant to the development of a condition, it is not the workers' perception that is relevant in terms of reasonable management action but what in reality, occurred. The Industrial Court had taken such a view excluding the workers' perception of the conduct.
[143] In this matter it is abundantly clear Raineri had difficulties working with Irving and did not respect her authority, in addition to personality issues. The reasonable management action provisions apply to Irving as she was one of Raineri's supervisors at PHQ on 2 July 2012 and part of the management team. There were previous instances where he had failed to comply with directions/requests given by Irving and his behaviour had shown he had nothing but disrespect and contempt for his female colleague/supervisor.
[144] There was an incident prior to 2 July 2012 involving Raineri and Irving when he had previously failed to comply with her instructions and had abused her at the main entrance to the PHQ building.
[145] If there was a finding in favour of the Appellant about injury, that injury could properly be characterised as having arisen out of reasonable management action taken in a reasonable way by the employer in connection with Raineri's employment. The events raised were nothing other than Raineri's perception of matters.
[146] Raineri was aggrieved by Irving's tone and mannerism but this does not fall outside the exclusionary of s 32(5) of the Act. The employer's actions had been reasonable management action taken in a reasonable way in connection with his employment and should any of the employer's actions be considered by the Commission to be unreasonable, in all the circumstances of the case, are only blemishes or events of imperfection.
[147] There was a failure by Raineri to discharge the onus on the balance of probabilities and a number of findings should be made including:
Raineri was not a credible witness; evidence of Fayers, McDonald, Zerner and Bowe should be accepted
above Raineri where evidence is in conflict; Irving as BSC was responsible for the oversight of security services related to facilities management and building safety at Queensland Police Service (QPS) locations; Raineri's role stipulated he was tasked to follow the procedures and
instructions in the building manuals; the email of 27 June 2012 was essentially a reminder of an earlier Directive issued by the BSC who had occupied the PHQ position prior to Irving; Fayers clarified the content of the email with Raineri also informing Irving who sought to approach Raineri to discuss the content of the email; the circumstances on 2 July 2012 were one of a supervisor who needed to have communications with a subordinate about a direction/instruction/ reminder of security pertaining to the PHQ and of Raineri refusing to engage in dialogue with that supervisor; following further communications in the lunchroom, Irving directed
Raineri to leave the building which he clearly refused; Irving had formed the belief that Raineri was going to undertake a course of conduct that had the potential to breach the security requirements for the building, for which she had over-arching responsibility; and Raineri was given the opportunity to explain his concerns but declined to
speak to Irving;
[148] The actions of Irving did not amount to management action taken in an unreasonable way with the failure of Raineri to engage in communication and follow what was reasonable in the circumstances.
[149] The incident (and the aftermath) was subsequently dealt with in a prompt and reasonable fashion which included:
immediate meetings undertaken at Mineral House; appointment of Stubbings to conduct an investigation; and Raineri was adequately supported throughout the process.
[150] The case for claimed stressors 7, 8 and 9 cannot, on Raineri's own case, be made out and at its highest the event of 2 July 2012 (claimed stressors 1 to 6 inclusive) may be construed as "not perfect" and/or a "mere blemish".
[151] It was finally submitted that in all circumstances the Commission ought to be satisfied that the conduct of the employer falls within the exclusionary provisions of s 32(5) of the Act. At most the actions might be construed to be a blemish but viewed objectively and indeed aside from Raineri's perception, reasonable in the circumstances. Therefore the Appeal should fail.
Appellant
[152] The issue for determination is whether Raineri suffered a personal injury within the meaning of s 32 of the Act and whether the injury was excluded by virtue of s 32(5) of the Act.
[153] The Regulator conceded Raineri was a "worker" as defined by the Act, but there was no concession he had suffered an Adjustment Disorder with Anxiety (chronic) which was the diagnosis of Dr Storer in his report of 30 April 2013.
[154] The submission provided a general overview of Raineri's employment which included some description of the organisational structure within which he worked:
Raineri was a PSO at 002 level having been employed for approximately
20 years; PSO role is to provide general security services to Government buildings
under the direction of SPSOs;
duties included such activities as operating a building console, monitoring surveillance systems and controlling the movement of personnel and vehicles;
on 2 July 2012 Raineri was a shift worker engaged at PHQ and also undertook shifts at Building 62. The shift pattern was four days on/off with shifts being on 12 hour duration;
at PHQ he was part of a team comprising of three PSOs rotating between
duties and a SPSO;
recommendations had been made to re-establish the position of BSC at the PHQ buildings with the intention for that position to act as a liaison between the PSOs and representatives of the client;
the position description for the BSC included inter alia the requirement to liaise with clients, building occupants and members of the public. In addition to other roles such as to maintain procedures for general building security and safety of persons in the building;
the BSC position was re-introduced in early 2011 with Irving commencing in the position in January 2012. Controversy surrounds the issue of whether Irving exercised any managerial authority over Raineri within the employers structure;
whilst there was differing evidence regarding an incident in February 2012, it is clear that Irving and Raineri fell into conflict very quickly after her commencement;
Raineri alleged that he sustained a psychiatric injury arising from
Irving's actions towards him on 2 July 2012 at the PHQ building;
the actions of Irving in the course of her dispute with Raineri on 2 July 2012 were outside the scope of management responsibility she held relevant to Raineri, thus irrelevant to the s 32(5) of the Act exclusions. Alternatively, it will be argued that deemed in the nature of management, her actions were both unreasonable and taken in an unreasonable way;
contrary to the submission of the Regulator, the Appeal should not be resolved merely by reference to the conflict which evolved on 2 July 2012 but as maintained by Raineri his stress was contributed to by the way the employer undertook its investigation up until the time of diagnosis of depression on 2 August 2012; and
the investigation of the events of 2 July 2012 were conducted in a way that was unfair and unreasonable in the circumstances with Raineri diagnosed with symptoms of depression by reason of "problems at work - and developed symptoms of depression after the problems occurred" prior to the completion of the investigation report.
[185] There were contentions about how the investigation was conducted and that it was not reasonable action taken in a reasonable way with such contentions said to include:
Raineri was not provided with any documents prior to the interview or
2 August 2012; despite a commitment to provide documents following the 18 July 2012
interview, none were supplied; no adequate particulars of adverse matters alleged against Raineri were
provided; refusal to grant an extension of time to ensure all relevant documents
were made available; and Raineri was interviewed first in circumstances where Irving was
acknowledged as the complainant.
[186] Further it was unreasonable management action to neglect to seek Raineri's permission to allow for the production of the digital recording to him and his legal advisors. Stubbings became aware of the recording within some hours of the interview with Raineri on 18 July 2012. Stubbings's failure to proactively gather any materials that were in existence prior to the interview with Raineri must be deemed unreasonable management action taken in an unreasonable way. These actions cannot be characterised as a mere blemish where it can be seen to have permeated the entire investigation. It has been established that Stubbings's investigation was not reasonable or undertaken in a reasonable way and the s 32(5) exclusions do not apply.
[187] In terms of where multiple causes or factors have given way to a worker's psychiatric injury and one of those causes arises out of, or in the course of, reasonable management action taken in a reasonable way, it was distantly expressed that it is enough to defeat any claim for compensation. See, for example, Q-COMP
12 13
v Department of Education and Prizeman v Q-COMP . [188] Such an interpretation is no longer sound. Only one stressor need to be found to
have been as a result of unreasonable management action taken in an unreasonable
14
way to see the injury accepted. In Q-COMP v Hohn, Hall P rejected the notion that once an injury is "touched" in any way by reasonable action taken in a reasonable way, it is not compensable. Hall P referred to cases and commentary on the topic by author Watson in Industrial Law Queensland:
"So it can now be definitely said that if there are multiple events or stressors and only one or some of them arise out of or occur in the course of reasonable management action taken in a reasonable way then the claimant may succeed in the claim based on any that do not so arise or occur in the course of reasonable management action taken in a reasonable way.". at [71,018]
[189] In this case, Raineri argues that even if some of the actions taken by Irving and Stubbings are found to be reasonable action taken in a reasonable way, but some are not, those aspects deemed to be reasonable cannot insulate the claim and allow the Regulator to succeed.
[190] Finally it was submitted the Appeal should be allowed.
Conclusion
[191] The issue of whether Raineri was, for the purposes of s 11 of the Act, a "worker" is not a matter upon which a determination is required, with each of the parties having agreed that Raineri was at all relevant times a "worker" pursuant to the Act.
Matters for Determination
[192] The matters for determination were not of dispute in that the issues were:
did Raineri suffer a personal injury; did that injury arise out of or in the course of his employment; was the employment a significant contributing factor to the injury; and
whether the operation of s 32(5) of the Act is excluded on the basis that Raineri's psychological or psychiatric injury (if it is found he suffered such an injury) arose out of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment or otherwise.
Personal Injury
[193] On 16 August 2012 Raineri lodged an Application for Compensation where he alleged he had suffered an injury (stress) over a period of time. Evidence before the proceedings (uncontroversial) is that an incident occurred on 2 July 2012 involving Raineri and Irving at PHQ in Brisbane and that following the incident there was a formal investigation undertaken by the employer. Raineri claims to have decompensated in the period between 2 July and 2 August 2012 to the point where he attended upon Dr Gabriel (a General Practitioner) at the Morningside Family Medical Centre at around 11.00 am on 2 August 2012. The clinical notes from that attendance [Exhibit 13] recorded the following notations from Dr Gabriel:
stressed from work-related issues; not sleeping well; feeling anxious; and panic attacks.
[194] The notes also recorded Raineri had no similar problems in the past. He had been stressed as a result of making a complaint at work and the reaction from the workplace. The notes further identified a diagnosis of clinical depression for which medication in the form of Zoloft was prescribed.
[195] Dr Gabriel was not called by the Appellant to give evidence which was the subject of criticism by the Regulator who was not afforded the opportunity to test the veracity of clinical notes, in particular the entry of 2 August 2012. The Regulator questioned the limited medical evidence available to the Commission submitting that Raineri had failed to meet the threshold issue in that he had suffered a "personal injury".
[196] A medico-legal report from Dr Storer [Exhibit 19] dated 30 April 2013 opined that Raineri had suffered from a diagnosable psychiatric disorder with the stated mechanism of injury consistent with his current condition and that the workplace events were a significant contributing factor to the development of his condition. Dr Storer in the preparation of the report had access to Raineri's medical records in addition to information in the form of documentation from WorkCover and the Regulator. The report noted that whilst there was no past history of a psychiatric condition, he had experienced a temporary period of work stress in 1999/2000 which had not required treatment.
[197] There is some foundation for the position of the Regulator that the medical evidence regarding the initial treatment and diagnosis of the stress-related condition is somewhat scant. Nevertheless as limited as the evidence is, it is of fact on 2 August 2012 Dr Gabriel diagnosed a condition of "stress from work-related issues" and there is evidence of ongoing treatment contained within the records of the Morningside Family Medical Centre, although the ongoing treatment is not a factor in the determination of whether he had suffered a personal injury at the time period specified.
[198] The Commission, in regards to the medical centre records accepted the said records into the proceeding in accordance with s 83 of the Evidence Act 1977 despite the absence of evidence from Dr Gabriel and afforded them standing to the extent they are a record of consultations involving Raineri from 2009 to 2 August 2012 and beyond. The likelihood of the information within the records being disturbed in cross-examination is not of a level to warrant their rejection or the reduction of appropriate weight to be given to such records.
[199] In the absence of further specialist evidence offering a view contrary to that of Dr Storer, I accept the opinion of Dr Storer as set out in his report that Raineri suffered from a diagnosable psychiatric disorder as a result of the workplace events "noted" and as such he suffered a personal injury in accordance with s 32 of the Act.
Did his personal injury arise out of or in the course of employment
[200] The medical evidence before the proceeding, in particular the records of the Morningside Family Medical Centre contain no reference to Raineri having suffered a diagnosable psychiatric condition prior to 2 August 2012 nor was there evidence of factors outside Raineri's work that may have contributed to his condition.
[201] On that basis I conclude that Raineri did suffer a personal injury that arose out of or in the course of his employment in accordance with the Act.
Was Raineri's employment a significant contributing factor to his personal injury
[202] The Regulator in effect submitted the Commission should apply some prudence to the opinions expressed by Dr Storer to the extent that at the time of preparing his report the documentation provided to him included the original Statement of Stressors and as such he had no regard for the amended version, although it was conceded that prior to the hearing of the Appeal Dr Storer had been requested to clarify his opinion, in terms of the Amended Statement of Stressors.
[203] In the course of cross-examination, Dr Storer acknowledged the absence of the Amended Statement of Stressors at the time he prepared his report, however evidenced they were considered by him to be "further significant contributing factors".
[204] Dr Storer, by way of email [Exhibit 20], informed Solicitors acting on behalf of Raineri (on 11 July 2013) that having perused amongst other things the Amended Statement of Stressors, the opinion previously provided in his report of 30 April 2013 was unchanged and there was no need to alter or supplement his report.
[205] I am satisfied that in the case of the personal injury suffered by Raineri, his employment was a significant contributing factor to the personal injury in accordance with s 32 of the Act.
Whether the operation of s 32(5) of the Act excludes Raineri's personal injury on the basis of reasonable management action taken in a reasonable way
[206] The stressors relied upon by Raineri as causative of his psychiatric/psychological injury were identified [Exhibit 16] as:
"No.
DATE
EVENT - Short description of the work events including the name of the person involved that
caused your psychiatric/psychological injury.
1.
02.07.2012
The actions of Leanne Irving in confronting the Appellant and alleging a failure by him to comply with
building procedures which was untrue. 2.
02.07.2012
The actions of Leanne Irving in failing to consider or seek the Appellant's input before taking management action in relation to the alleged failure to comply with
building procedures was untrue. 3.
02.07.2012
The actions of Leanne Irving in failing to give the Appellant any or any reasonable opportunity to explain
his position. 4. 02.07.2012 The actions of Leanne Irving in being aggressive in her manner and tone in dealing with the Appellant. 5. 02.07.2012 The actions of Leanne Irving in unlawfully directing the Appellant to leave the workplace on multiple occasions. 6. 02.07.2012 The actions of Leanne Irving in assaulting the Appellant.
7. 01.01.2012 - The actions of Leanne Irving in harassing and bullying 02.07.2012 the Appellant consistent with an agenda to discriminate
against the Appellant because of:
(a) His membership of and positions held in the Queensland Protective Security Offices Associates Inc. (b) His active representation of his colleagues on industrial matters. (c) His history of actively challenging his employer in relation to industrial matters.
8. 02.07.2012 - The employer relied upon a covert recording of 02.08.2012 interactions involving the Appellant on 2 July 2012 without providing the Appellant with the opportunity to know and appreciate that he was being recorded and/or the opportunity to listen to or respond to the recordings during the course of the investigation. 9. 02.07.2012 - The actions of the employer and Ms Susan Stubbings, 02.08.2012 an investigator appointed by the employer, in conducting an investigation about the events of 2 July 2012." [207] The stressors 1 through to 6 (inclusive) related to the incident of 2 July 2012 at the PHQ building in Brisbane which was the subject of extensive evidence in the course of the proceedings. Stressor 7 identified a period of time between 1 January and 2 July 2012 which it was alleged Irving had harassed and bullied Raineri in relation to industrial activities undertaken by him in the workplace. Stressors 8 and 9 were the two stressors included in the amended list of stressors that related to circumstances of behaviour by the employer in the course of the investigation of the 2 July 2012 incident.
2 July 2012 - incident
[208] The main protagonists in this event were Raineri and Irving with their evidence occupying a substantial portion of the hearing. It would be safe to conclude that at times each of the two were less than ideal witnesses, both argumentative when being cross-examined, with each to some extent being focussed on protecting from scrutiny their own version of what occurred on that day.
[209] The more serious elements surrounding the incident were not, in effect, witnessed by a third party necessitating the requirement to prefer a version of one over the other.
[210] Prior to consideration of the incident itself, it is necessary to make an initial comment that the evidence, in my view, is clear that Raineri in his interactions with Irving on 2 July 2012 from the time she approached him a the Garrick Street entry point and onward, he displayed disrespect in his refusal to engage with a person who had a level of authority as the BSC in the PHQ building. Whatever the past history between the two, the failure to properly engage may be of a nature to have required some form of disciplinary consideration by the employer. That however is outside the parameters of this Appeal because I do not consider his behaviour to have been threatening or a prerequisite to some significant display of behaviour likely to have caused a disturbance within the PHQ precinct on that day.
[211] The initial approach of Irving, in interrupting a conversation with Raineri and another, could be itself described as somewhat ill-mannered with the situation deteriorating from that point and was not helped by her behaviour in telling Raineri at that time he would have to leave the building and could be restrained by her and/or removed forcibly. On 2 July 2012 Irving was an accredited BSC, a position which did not carry the authority to restrain or detain a person within PHQ, a situation that Raineri as a long-serving PSO was very aware of and despite Irving being an SPSO (in training) she had not been "sworn" at the time.
[212] There is no discrepancy in the evidence that Raineri went to the lunchroom and was subsequently spoken to by Fayers and that, on the instruction of Irving, he covertly recorded the exchange. I accept Fayers's evidence that Raineri's demeanour at the time was unprofessional and inappropriate and had advised Fayers of his intention not to follow a lawful instruction by Fayers to remain in the lunchroom.
[213] It was known at that time by Fayers and Irving that Mineral House had been notified of an issue between Raineri and Irving and were in the process of attending at PHQ to deal with the matter. The proper course of management action in those circumstances would have, in the case of Irving, been to disengage with Raineri and wait for McDonald (a person with direct management responsibilities over Raineri) to arrive on site.
[214] Irving however disregarded the reasonable approach and confronted Raineri in the lunchroom (whilst he was on his break) throwing her qualifications on the table for him to (on her direction) peruse.
[215] I accept the evidence of Rainer that he requested her to leave him alone to which Irving replied by placing an empty box on the table instructing him to fill it with the contents from his locker. In the circumstances this behaviour was not conducive of producing an acceptable outcome and when Raineri refused to comply with the direction, the matter was further compounded by Irving informing him that Mineral House were coming to PHQ to forcibly remove him.
[216] Raineri appears to have decided "enough is enough" and attempted to leave the lunchroom for reasons likely to include the avoidance of further confrontation with Irving. In my view he was the person acting responsibly and if left alone at that point, until McDonald arrived on site, there would have been no risk to any form of disturbance by Raineri and the matter could have, in all likelihood, been settled in a more sedate environment.
[217] As Raineri attempted to exit the lunchroom, the evidence points to Irving seeking to prevent his leaving by taking up a position in what was already a fairly "limited" door space at which point Raineri's (who is not a small person) stomach came into contact with Irving. Despite having given evidence that she had never directed Raineri to remain in the lunchroom, there is no doubt there was a physical altercation of sorts when he sought to leave with Irving's own evidence being she had not successful restrained Raineri which in essence acknowledges an attempt had been made to restrain him. Irving had (as previously mentioned) no lawful authority to detain Raineri in those circumstances.
[218] Irving laid claim to have been in fear of her life which was clearly unsubstantiated on the evidence as was her allegations of an assault upon her by Raineri. The evidence around the alleged assault from Irving could best be described as inconsistent and it is of fact that a formal complaint regarding the alleged assault had never been raised with the Queensland Police Service.
[219] The behaviour exhibited by Irving on 2 July 2012 from the time of her initial contact with Raineri at the Garrick Street entry point through until Raineri's attempt to exit the lunchroom was not, on the evidence, reasonable management action taken in a reasonable way by a person who had (albeit) limited managerial responsibility regarding Raineri and where her actions exceeded those responsibilities, crossing over to the into an area for which McDonald and Fayers were the responsible officers. The behaviour of Irving on 2 July 2012 is characterised correctly in the Amended Statement of Stressors 1 to 5 (inclusive) and stressor 8 however in respect of stressor 6 there is insufficient evidence to support allegations of assault by Irving on Raineri and in terms of stressor 7 around allegations of Irving harassing and bullying Raineri over his industrial conduct, there is insufficient evidence to support this claim. Stressor 9 was at best a "blemish" and fits with stressors 6 and 7 not to exclude s 32(5) of the Act.
[220] The Commission is satisfied, on the requisite standard of proof (on the balance of probabilities) it has been established in relation to the Amended Statement of Stressors - stressors 1 to 5 (inclusive) and stressor 8 that the work events nominated were causative of Raineri's psychiatric/psychological injury as a consequence of unreasonable management action taken in an unreasonable way by the employer in connection with his employment.
[221] In respect of stressors 6, 7 and 9, the evidence before the proceedings supports a finding these stressors were not enlivened to an extent that would exclude his injury from the operation of s 32(5) of the Act.
[222] The stressors 1 to 5 (inclusive) and stressor 8 in my opinion are significant in nature to the point that the conduct of the employer in terms of stressors 6, 7 and 9 being reasonable management taken in a reasonable way does not isolate the first- mentioned stressors to preclude compensation for the personal injury suffered by Raineri.
[223] In the matter of Q-COMP v Hohn[15], Hall P stated:
[15]
"If indeed it was the submission of Q-COMP at first instance that once an injury was in any way touched by reasonable management action reasonably taken it is not compensable, I agree with the Commissioner (paragraph 3 at p. 666) that such a submission "...overstates the effect of s. 32(5).". Indeed, in my view, the submission is inconsistent with Delaney v Q-COMP (2005) 178 QGIG 197. That case involved an appeal against a decision by an Acting Industrial Magistrate which teased out the transactions and events and concluded that Mr Delaney's adjustment disorder with mixed anxiety and depressed mood was attributable to a number of interactions with his superiors each of which constituted reasonable management action reasonably taken. There was a successful appeal to this Court. However, as is pointed out at [71, 015] by the learned author of Watson, Industrial Laws of Queensland (who appeared for Mr Delaney), Mr Delaney did not in that appeal challenge every finding that an interaction contributing (in some way) to Mr Delaney's decompensation was reasonable management action reasonably taken. One finding was allowed to remain in place on the appeal. In consequence, Mr Delaney was bound by the finding on the appeal. If the submission attributed to Q-COMP at first instance was correct, Mr Delaney's appeal should have failed. The appeal succeeded. The remaining finding of reasonable management action reasonably taken was treated by both parties as inconsequential so long as it stood alone.
Repudiation of the proposition that s. 32(5) only operates where the reasonable management action is a significant contributing factor to a worker's decompensation, does not require embrace of the proposition that other words, viz., "or partly arising out of or in the course of reasonable management action", are to be read into s. 32(5). I respectfully adopt the view of Watson, op. cit., viz.:
'To read the subsection in that way would be to read into the subsection the words 'or partly arising out of or in the course of'. Implying words into legislation is not something that courts undertake lightly. See, for example, what Callinan J said in Electrolux Home Products Pty Ltd v AWU (2004) 221 CLR 309; 209 ALR 116; [2004] HCA 40; BC200405590 at [239].
Further, the argument runs counter to the interpretation given to similar legislation in other jurisdictions. See, for example, Rivard v Northern Territory (1999) 129 NTR 1; 150 FLR 33; [1999] NTSC 28; BC9901148 at [30].
It also runs contrary to logic. If there are eight stressors which gave rise to the injury and they all arise out of or in the course of employment only seven are significant contributors whereas the eighth is exceedingly minor but arises from reasonable management action taken in a reasonable way, where is the justification for denying a claimant compensation in those circumstances?'."
[224] The management action of the employer on 2 July 2012 from the time McDonald arrived on site through until the conclusion of interviews arranged and conducted by Bowe at Mineral House was a proper response in the circumstances, on that day, and I make no finding to the contrary. The action of Bowe at the conclusion of events at Mineral House on 2 July 2012, in sending Raineri back to PHQ to resume work, would seem to "douse" any concerns regarding Raineri's behaviour likely to cause a disturbance. Bowe also showed good judgement in deciding to require Irving to remain at Mineral House despite her objections.
Covert recording
[225] There is undisputed evidence that on two occasions on 2 July 2012 at PHQ Raineri was recorded covertly, firstly by Fayers (at the direction of Irving) and secondly by Irving. On 2 July 2012 Irving played the tape to Zerner on her arrival at PHQ although, in evidence, Zerner had limited recollection of what she heard. Zerner recalled mentioning the recording to Bowe on 3 July 2012 but could not recall mentioning the existence of the recording to Stubbings.
[226] On 18 July 2012 when interviewing Irving it was the first time Stubbings became aware of the covert recording. Stubbings at that time refused a copy preferring to obtain legal advice regarding the status of the recording due to her limited knowledge of the Invasion of Privacy Act 1971. The instructions received by Stubbings was not to obtain a copy of the recording until permission was given by Raineri. On informing Irving of the advice, it was the evidence of Irving that she replied in the following terms "Well, with all due respects, it's - it's either everyone gets it or no one gets it". Irving subsequently neither provided the recording to Raineri nor kept safe custody of the recording with it being deleted by another staff member in what can reasonably be described as "suspicious" circumstances. The recording, had it been available at the hearing of the Appeal, would have potentially been beneficial in terms of it being a record of what was the unwitnessed exchanges involving Raineri and Fayers/Irving.
[227] With regards to the effect of the covert recording as a stressor, it was apparent on 16 July 2012 that Raineri had some suspicions of its existence with his Solicitors requesting from the employer "all relevant documentation" including listening devices. Raineri was not formally advised at the interview on 18 July 2012 of the recording but more importantly later when Stubbings had become aware of the recording not contacted about the existence of the recording not contacted about eh existence of the recording.
[228] Dr Storer's evidence was that the additional stressors 8 and 9 were "further significant contributing factors" supports the position of Raineri that the failure to be provided with the opportunity to know and appreciate that he was being recorded and then denied the opportunity to listen and respond to the recordings had assisted with his decompensation.
[229] The conduct of the employer (more particularly Irving) to make the covert recording available to Raineri in the early stages of the investigation was recalcitrant in nature and certain not reasonable management action taken in a reasonable way. I make no adverse finding regarding Stubbings's management of the recording forming the view she dealt with the issue appropriately in the first instance and more importantly at no stage did she have possession or control of the recording.
The Stubbings investigation
[230] The appointment of Stubbings to conduct the investigation in regard to the incident of 2 July 2012 and her ultimate handling of the investigation was nominated as a stressor (stressor 8) causative of Raineri's psychiatric/psychological injury.
[231] On commencement of the investigation, the evidence from Stubbings was that (with later acquired knowledge) there was certain relevant information withheld from her at the hands of the employer. Some of this material had the potential to adversely impact on Raineri and in the interests of natural justice it would have been appropriate for her to have had knowledge of that material prior to interviewing Raineri on 18 July 2012. The allegations that the interview with Raineri on 18 July 2012 had placed him at a disadvantage because of the failure to provide all documentation prior to the interview would more likely than not been rectified with the production of all material obtained by Stubbings (in the course of the investigation) at the second interview. The evidence of Stubbings that it was her intention to present Raineri with the statements of other individuals at a second interview is accepted by the Commission as reasonable management action taken in a reasonable way. Unfortunately, Raineri refused to participate in a second interview prior to receiving the material, in effect a "Mexican standoff".
[232] The faults with the investigation that became evident in the proceedings were no more than a "blemish" with the conduct of the investigation overall undertaken by Stubbings in a professional manner.
Credibility of witnesses
[233] The evidence critical in the determination of the Appeal was that of Raineri and Irving as the main participants in the incident on 2 July 2012. Raineri, whilst not a "model witness" remained consistent with his recall of events, even though in some respects the passing of time had a bearing on the clarity of the events.
[234] In the case of Irving's evidence, it was at times at odds with others in particular the recall of Zerner and McDonald who had taken contemporaneous notes from the outset which clearly contradicted certain critical evidence regarding the claims of assault against Irving and of her physical composure on Zerner's arrival at PHQ.
[235] I have, where there were differences in the versions of evidence, preferred that of Raineri over Irving who, in my view to her detriment had some issues of credibility.
Finding
[236] Upon consideration of the evidence, material and submissions before the proceedings, I make the following findings:
at all relevant times, Raineri was, for the purposes of s 11 of the Act, a
"worker";
Raineri sustained a personal injury in the form of a psychiatric/psychological injury pursuant to s 32 of the Act; the personal injury sustained by Raineri arose out of, or in the course of, his employment and the employment was a significant contributing factor to the injury; and the operation of s 32(5) of the Act in terms of Raineri's personal injury is not excluded on the basis that in respect of stressors 1 to 5 (inclusive) and stressor 8 being the subject of unreasonable management action taken in an unreasonable way by the employer in connection with his employment.
[237] The Appeal is upheld and the decision of Simon Blackwood (Workers' Compensation Regulator) of 1 February 2013 is set aside. The claim is one for acceptance.
[238] The Regulator is to pay the Appellant's cost of and incidental to this Appeal or, failing agreement, to be the subject of a further application to the Commission.
[239] I order accordingly.
Decision
[1] On 1 March 2013 Guiseppe Raineri (the Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 1 February 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
1
Theresa Helen Ward AND Q-COMP (C/2011/39) - Decision <
Susan Forden v Q-COMP [2009] Magistrate Lee (MAG 31405/07, 28706/08 & 36307/08)
3
D Byrne and JD Heydon, Cross on Evidence, fourth Australian Edition, Butterworths 1991, page 1029.
Montfory v Rhodes Corporation [2005] VSC 320
RPS v The Queen [2000] 199 CLR 620
Insurance Commissioner v Joyce [1948] 77 CLR 39
7
Flinders Operating Services Pty Ltd (formally NRG Flinders Operating Services Pty Ltd) v Amato [2007]
SAWCT 33
Rea Georges v Telstra Corporation Limited [2009] AATA 731
Bowers v WorkCover Queensland [2003] 170 QGIG 1
Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301
Catholic Education Services v Q-COMP [2007] 185 QGIG 248
12
Q-COMP v Department of Education [2005] 179 QGIG 491
13
Prizeman v Q-COMP [2005] 180 QGIG 481
14
Q-COMP v Hohn [2008] 187 QGIG 139
Q-COMP v Hohn [2008] 187 QGIG 139
0
3
0