Roberts v Workers' Compensation Regulator
[2016] QIRC 30
•7 March 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Roberts v Workers' Compensation Regulator [2016] QIRC 030 |
PARTIES: | Roberts, David Grant v Workers' Compensation Regulator |
CASE NO: | WC/2013/437 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 7 March 2016 |
HEARING DATES: | 26 - 29 May 2014 |
HEARD AT: MEMBER: | Brisbane Industrial Commissioner Neate |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. The Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL FROM DECISION OF THE WORKERS' COMPENSATION REGULATOR - injury is a psychiatric or psychological disorder - events occurred on multiple occasions over a seven month period - appellant bears onus to establish that his condition falls within the definition of "injury" in the Workers' Compensation and Rehabilitation Act 2003 - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - appellant to establish that the elements of s 32(5) of the Act are not satisfied. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 |
| APPEARANCES: | Mr D.G. Roberts, Appellant in person |
Decision
This is an appeal by David Grant Roberts ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the Respondent") to reject the Appellant's application for compensation for what he claims is a work related psychiatric or psychological injury. The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
Background to the claim
The Appellant is an engineer. He commenced employment as a Project Manager for Powerlink Queensland ("Powerlink") from early 2011 in the Network Property Group. He known to his work colleagues as Grant.
Powerlink is involved in projects which can be broadly characterised as:
(a)regulated projects which service the general supply of electricity throughout the State (e.g., augmenting the existing network to ensure that future demand can be met) and which are paid for by the State; and
(b)non-regulated projects where an entity engages Powerlink to provide transmission lines or substations to allow them to connect to the transmission grid within Queensland in order to meet the entity's energy needs for its business purposes, and that entity pays for the asset that is used to connect them to the main grid.
In a formal sense there was no difference in process between regulated and non-regulated projects. However, as this case illustrates, there can be significant practical differences in how Powerlink undertakes aspects of its work depending on the type of project.
Stages of a project: Peter Briggs (previously a Project Manager then a Senior Project Manager with Powerlink) and Terrence Miller (previously the Manager of Network Investment and Regulatory Strategies for Powerlink), described the stages of a project and the associated access arrangements. In summary, the evidence of Mr Briggs was that after the need to build infrastructure is decided:
(a)a corridor (about two to three kilometres wide) is identified;
(b)landholders within that corridor are advised that their properties are within the project area;
(c)a Project Manager or other person from Powerlink talks to each landholder about how their property fits within the project area and the opportunity for Powerlink to access the project area, including their property, to assess what constraints[1] might impact on decision-making in relation to the placement of infrastructure on the particular property, and the economic impacts of a transmission line on land use, the value of the property, and activities associated with the property;
[1] The constraints could include social constraints such as housing and graveyards, assets on the property, and environmental constraints such as vegetation, creeks, high raised soil areas, or steep gullies.
(d)usually each landholder provides (or, at least, most landholders provide) Powerlink with access to their property;
(e)when access is denied, Powerlink decides how to progress the matter (including whether that property needs to be accessed) and uses different tools to try to achieve access (including sending, for example, a more experienced person or someone in a more senior role to try to negotiate access);
(f)sometime access is granted on the basis of a permission to enter form, a non-binding agreement with relevant conditions (e.g., an indemnity granted by Powerlink) (see Exhibit 17 document 31);
(g)if that fails, Powerlink will consider other ways to secure access, including under s 36 of the Acquisition of Land Act 1967 which empowers an officer, employee or contractor of Powerlink to enter upon any land (and re-enter and remain on the land for such time as is necessary) for the purpose of making any inspection or survey;
(h)a "natural justice letter" is sent to the landholder before a s 36 notice is issued, and a significant number of landholders negotiate at that stage to avoid a s 36 notice being issued;
(i)if a s 36 notice is issued, Powerlink normally allows about 10 days before exercising its rights of access.
Mr Miller stated that the Project Manager (or their assistant or sometimes the consultant engaged by Powerlink) contacts the landholders whose land is traversed by the preferred alignment. Further discussions are required to refine that alignment, if necessary, to take into account additional information obtained from the landholders.
Mr Briggs stated that, depending on the number of landholders involved, Powerlink would allow a period of about six weeks to three months for the negotiation phase. To give some indication of how often s 36 notices are used, Mr Briggs gave evidence that s 36 notices were issued in two of the nine projects that he delivered as Project Manager.[2] In his opinion, a six month period for negotiations and s 36 notices would be a reasonable period for a project with a large number of landholders.
[2] On one project s 36 notices were issued to about 20 or 30 landholders, and only one s 36 notice was issued on the other project.
After a process involving research and draft documents, a final Environmental Impact Statement ("EIS") is developed having regard to those discussions with landholders. The alignment that will be designated by the relevant Minister must be located so that there is an appropriate balance between the environment, social impact and cost. Any variation to the alignment that would result in some additional cost will be a trade-off for a better environmental or social outcome.
Mr Miller said that it is not unusual for a proposed alignment to change particularly where, as in the project mentioned in the present case, gas infrastructure was being developed as the Powerlink project proceeded. Changes were made to the powerline alignment to take into account that infrastructure (some of it existing or almost in place, and other infrastructure identified for the future).
The project: Australia Pacific LNG Pty Ltd ("APLNG") asked Powerlink to establish direct connections into the high voltage transmission network to supply power to its future gas processing facilities in the area west of Wandoan. To meet that request, Powerlink proposed to establish about 100 kilometres of transmission line and four substations. It commenced a project to identify and acquire the necessary easements and land for the proposed infrastructure. Initially the project involved two joint ventures with APLNG and GLNG, and affected 65 landholders. Powerlink was constructing the powerline for the companies who were paying for the project.
Powerlink engaged a consultant, GHD, to undertake an assessment of a range of possible corridors. By reference to desktop research initially, GHD selected the most favoured corridor (about two kilometres wide) based on the criteria in the Sustainable Planning Act 2009 and selected a preferred alignment within that corridor.
Project Newsletter 1 of April 2012 (Exhibit 17 document 1) stated that, as part of the Environmental Impact Assessment ("EIA") process for the project, a study corridor was identified for each stage of the project within which the proposed infrastructure was to be located. The study corridors would be used as a starting point for detailed investigations and discussions with potentially affected landowners and stakeholders. The approach of having corridors much wider than what was needed, provided some flexibility in narrowing and identifying a route for a proposed transmission line which could help minimise its overall impact.
Project Newsletter 1 listed the factors taken into account in determining the position of the final alignment for a transmission line:
(a)social factors - such as minimising the number of homes near the alignment and impacts on current and future land use e.g. farming operations;
(b)environmental factors - such as the location of regional ecosystems and rare and threatened species (if any);
(c)visual factors - such as scenic amenity of the area, and road, creek and rail crossings; and
(d)economic factors - such as costs associated with length of the line, type of structure, and number of line angles.
These factors are to be "weighed up together to determine an alignment which on balance, has the lowest overall impact." After stating that Powerlink's infrastructure and farming operations can coexist safely and productively, the Newsletter continued:
"Local farmers and landowners potentially affected by a new transmission line can play an important role in helping to select an alignment of least overall impact as part of the EIA process. As part of this project, we will be working closely with these groups and the community to determine an alignment for the proposed transmission lines of least overall impact."
Elsewhere in the Newsletter references were made to identifying a route that "could help minimise its overall impact," and to determining an alignment that has the "lowest overall impact" or the "least overall impact."
The Newsletter also stated : "No decision will be made regarding the final location of the proposed infrastructure until the EIA and related consultation has been completed."
Unusual features of the project: Mr Briggs said that the "main factor with that project was time." Powerlink's customers had agreements in relation to supplying their own customers with electricity so that they, in turn, could export coal seam gas to their customers to meet contract dates. Another practical and distinguishing feature of the project was that the companies were "very commercial" and had their own interests to protect. They were active in negotiations with landholders, and were "playing Powerlink off the landholders so they could build a relationship with the landholder at Powerlink's expense" (e.g. by being willing to pay the landholder for access to their property for the company's exploration for gas activities). Mr Briggs suggested that even landholders who did not have direct interactions with gas companies might have expectations of Powerlink that are influenced by their impression of what the companies offer. Powerlink had not experienced that previously, and it was "highly challenging."
Mr Miller also gave evidence that the circumstances surrounding the project were more complex because gas companies were interacting with landowners with whom Powerlink had to negotiate, and were setting expectations about interactions and compensation. That was a new environment for Powerlink. For example:
(a)those companies had different options from Powerlink if they were unable to reach an agreement with landholders (e.g., by not drilling on those properties), whereas Powerlink did not have a choice of avoiding properties that were "difficult" as the continuous power lines had to go from property to property without any gap;
(b)gas companies made payments above what was paid by other infrastructure providers (such as Powerlink) for landowners' interactions and time;
(c)because of the procedural requirements of the Acquisition of Land Act 1967, payments of compensation to landholders with respect to electricity infrastructure could take about two years or longer from the day that a landowner was first spoken to, whereas gas companies were able to negotiate deals "here and now."
According to Mr Miller, "there were visible differences that we are becoming aware of at that time" and it was "a learning curve" for Powerlink.
Any delays to the project or additional expenses would be met in accordance with the terms of the contract with Powerlink. Hence it was more difficult for Powerlink to manage delays than might have been the case in relation to regulated projects.
Powerlink apparently wrote to the gas companies asking them not to communicate with landholders about Powerlink's project (in the same way that Powerlink could not communicate about the gas project) unless there was some agreement for that to occur, e.g. by way of a joint meeting where there might be some communication about how the whole project fitted together. Mr Briggs said that he and the Appellant spoke quite regularly in relation to the challenges with landholders and what was happening in relation to landholders. Although Powerlink's standard approach was to try to negotiate access to properties, some landholders either did not communicate with Powerlink or were not accommodating. Mr Briggs recalled the Appellant speaking about the process under s 36 of the Acquisition of Land Act 1967, and different opportunities to gain access so that Powerlink could deliver its project.
Mr Briggs expressed the opinion that, in providing "highly aggressive timetables" to the customer in relation to the delivery of the project, Powerlink probably did not identify all the risks associated with the project (particularly the big landholder risk). He believed that Powerlink provided "unrealistic timeframes" which assumed that "everything went like clockwork" and that "there were effectively no significant problems associated with the project." He had not worked on any project where that had been the case.
Toward the end of 2012, Powerlink was finding access to properties "challenging" and advised APLNG that it was likely there would be some delays to the project. At that stage Powerlink would probably not have been advising APLNG of solutions, but in early to mid-2013 started communicating what it was doing in relation to trying to minimise the impacts of delays on the project. Powerlink held workshops and meetings with the customer to try to identify opportunities to minimise the impacts of those delays.
Mr Briggs gave evidence that Powerlink had not been involved in this type of project before, and the environment was complicated by a change of government in March 2012. Powerlink was trying to assess the policy direction of the incoming government in relation to Powerlink's place within the infrastructure environment. Powerlink learnt lessons for future non-regulated fast tracked projects from decisions made in relation to this project.
Management structure for the project: Mr Briggs described the management structure within Powerlink relevant to this project:
(a)the Appellant, as Project Manager and a community contact officer,[3] reported directly to Mr Briggs;
[3] The other community contact officers later in the project were Vince Bein until he resigned about late July 2012 and then Ross Thompson and David Hunter, who was also involved on other projects. (See Exhibit 7 document 7.)
(b)Mr Briggs, as Senior Project Manager, reported to Mr Baker;
(c)Mr Baker, as Local Relationship Manager for Powerlink since early 2013, reported to Alison Gray;
(d)Ms Gray, as Manager Network Property, reported to Mr Miller, Manager of Investment and Regulatory Strategies;
(e)Mr Miller reported to Gary Mulherin;
(f)Mr Mulherin reported to the chief executive Merryn York.
At the hearing, the oral evidence was given by the Appellant, Mr Briggs, Mr Baker and Mr Miller, and by Amy Brutton (the Recruitment Advisor and People and Culture Advisor at Powerlink) and Melissa Azzopardi (the Group Manager, Landholder Relations).
Mr Miller gave evidence that once APLNG and GLNG committed to the project and did some pre-work it became evident that a dedicated Project Manager was required. The Appellant was appointed for all of the work. As the project started to unfold, and particularly the difficulties with landowners (in "two real trouble spots") and other complexities became apparent, it was decided to divide into two projects, i.e., the APLNG component with the Appellant as Project Manager and the GLNG component with Nicole Bolton as Project Manager. That decision was in response to a resourcing issue (i.e., the impact of that workload on Powerlink's resources) and to meet the companies' expectation that Powerlink do something like that to meet their concerns about any delays.
The intended impact of that decision on the Appellant was to ensure that he had a "bundle of work that was doable" in circumstances where the amount of work in dealing with difficult landowners escalated and one Project Manager could not bridge the two trouble spots.
Mr Briggs also said that initially the project involved two joint ventures, and the Appellant ran both the APLNG and GLNG projects which involved 65 landholders. Powerlink identified all the challenges associated with those projects and the significant workload for delivering them. It decided that the Project Manager's role probably needed to focus more on management then the delivery of tasks. Mr Briggs recalled that the Appellant was taken away from dealing with some of the landholders after Vince Bein was appointed as a community contact officer. However, the Appellant would retain contact with other land holders, and was still responsible for managing the community contact officers associated with the project. The handover served two purposes namely, to relieve the Appellant of some of his work and to enable another person to have contact with landholders who had not agreed to provide Powerlink with access to their properties. According to Mr Briggs, the transition occurred from mid-2012 towards the end of that year. Mr Briggs was not involved directly in the decision by management, and he imagined that the Appellant would have been part of that decision.
Ms Bolton reported to Andrew Owen, a Senior Project Manager, in the same way that the Appellant reported to Mr Briggs. Mr Owen and Mr Briggs then reported up the line. That arrangement "made things challenging" because two Senior Project Managers were trying to deliver two projects in the area where there was a lot of overlap. In response, Powerlink formed a North West Surat team in the first quarter of 2013.
Given the reporting arrangements, Mr Baker had limited day-to-day involvement in the project in 2012. However, he noted that, with two projects operating concurrently in the same area, there was "a fair degree of crossover between the teams."
The Appellant's role: Mr Briggs described the role of Project Manager for the project as involving managing the budget associated with the project and the timing of the delivery of the project. The Project Manager also had to deliver aspects of the project and, in effect, became a landholder liaison officer or community contact officer and managed access to properties, consultants and a range of other day-to-day activities. Separate community contact officers do much of the "leg work" in relation to negotiations with landholders. The Project Manager's role is to manage the day-to-day activities of the community contact officers.
The Appellant described his role as a Project Manager as involving negotiations for the preparation for construction of electrical infrastructure. It included procuring ministerial designation as community infrastructure under the Sustainable Planning Act 2009 and procuring rights to the land (or acquiring land) under the Acquisition of Land Act 1967. Without those two things, the project could not proceed to the construction stage, and the project would fail. As part of his role, the Appellant identified locations for electricity substations and alignments for transmission lines, and negotiated access for EIS fieldwork by specialists and consultations with landholders to inform the EIS process. He negotiated on behalf of Powerlink with landholders to obtain access and to acquire easements or purchase parcels of land. He was not involved in the construction of the project.
The Appellant gave evidence that he successfully negotiated access in relation to 18 properties. Following an email dated 30 January 2013 (Exhibit 17 document 25), the inner part of the project (about 100 kilometres affecting 20 landholders) remained with him and the rest (the Yuleba North to Blythdale line and two other lines in the GLNG project) was allocated to Nicole Bolton, another Project Manager.
The Appellant's claim
The Appellant claims that he suffered a psychiatric or psychological injury resulting from his employment as a Project Manager with Powerlink. The events and circumstances that he contends gave rise to his injury are set out later in these reasons for decision.
The Appellant presented to his general practitioner, Dr Vinodha Naidoo from 18 February 2013, complaining of stress related to work. On 6 June 2013, his general practitioner issued a workers' compensation medical certificate describing the Appellant as "stressed and very anxious," and describing the Appellant's stated cause of injury as "project falling behind being put in a bad ethical position company not following statutory process" (Exhibit 6). The certificate stated that the Appellant was not able to work at all from 6 until 14 June 2013.
On 7 June 2013, the Appellant lodged an application for compensation with WorkCover Queensland ("WorkCover") in relation to an injury that the Appellant asserted he had sustained during his employment. WorkCover rejected the application for compensation on the basis that the injury had arisen out, or in the course of, reasonable management action taken in a reasonable way and was therefore excluded from the definition of "injury" in s 32 of the Act by operation of s 32(5).
In October 2013, the Appellant applied to the Respondent for a review of the decision of WorkCover. In a decision dated 2 December 2013, contained in the reasons for decision dated 6 December 2013, the Respondent's Review Unit confirmed the decision of WorkCover to reject the Appellant's application for compensation in accordance with s 32(5) of the Act. It is against that decision the Appellant currently appeals.
The legal requirements and onus of proof
The appeal has to be decided be reference to s 32 of the Act.
At the times of the alleged events that caused the Appellant's injury, and at the date of the application for compensation the relevant subsections of the Act provided:
"(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 being taken against the worker;
…
Examples of actions that may be reasonable management actions taken in a reasonable way—
· action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
· a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
The definition of "injury" in s 32(1) of the Act was amended from 29 October 2013. However, s 680 of the Act provides:
"680 Injuries sustained before commencement
(1) This section applies if a worker sustained an injury before the commencement.
(2) The pre-amended Act continues to apply in relation to the injury as if the amendment Act had not been enacted.
(3) Without limiting subsection (2)—
(a)the amount of compensation payable in relation to the injury must be worked out under the pre-amended Act; and
(b)chapter 5 of the pre-amended Act applies in relation to damages for the injury.
(4) In this section—
injury has the meaning given by section 32 of the pre-amended Act."
Consequently, despite that change to s 32(1), it is clear from the operation of s 680 of the Act that s 32 as it was immediately before the 2013 amendments applies to this appeal. The case was conducted on that basis.
The Appellant carries the burden of proof on the balance of probabilities.[4] The Respondent does not contest that at the relevant time the Appellant was a "worker" for the purposes of the Act, and that he sustained a personal injury that is a psychiatric or psychological disorder.
[4] See e.g. Rossmuller v Q-COMP (C/2009/36) - decision [2].
Given the concessions made by the Respondent, the Appellant must prove, on the balance of probabilities, that his claim for compensation should be accepted because:
(a)his injury arose out of, or in the course of, his employment;
(b)his employment was a significant contributing factor to the injury; and
(c)his injury did not arise out of, or in the course of reasonable management action taken in a reasonable way by Powerlink in connection with his employment.
If Powerlink's actions in connection with the Appellant's employment comprised reasonable management action of that type, the appeal must fail.
Some preliminary observations about procedural matters
The conduct of the hearing of this appeal, including the written submissions made in relation to it, illustrate the difficulties faced by a litigant in person who has no formal legal training and is unfamiliar with legislation and the conduct of an appeal (both during and after the hearing). To some extent, the Commission can assist a litigant in person who is unfamiliar with the procedures of the Commission and the ways to handle the cut and thrust of exchanges between the parties in the course of a hearing. To some extent, the Commission can be assisted in performing its function by the Respondent acting as a model litigant.
The transcript of these proceedings records examples of the practical difficulties faced by the Appellant and the ways they were addressed in the course of the hearing. Despite his lack of formal qualifications and experience in relation to such proceedings, the Appellant showed his adeptness in coming to grips with what was required of him as the hearing proceeded. He was well prepared, and the documents on which he relied were collated in chronological order. The passages relevant to his argument were highlighted. That gave structure to the order in which he presented his case.
Nonetheless, there were examples of the Appellant not pursuing matters or potentially not adducing relevant evidence apparently because of his unfamiliarity with the applicable procedures. For instance, the Appellant submits that counsel for the Respondent had the opportunity to raise specific issues with two witnesses (Bob Baker and Mr Miller) but did not do so and consequently the Appellant was unable to cross-examine them on that issue. In its detailed reply, the Respondent notes that the Appellant's cross-examination of the Respondent's witnesses was not limited to matters that were led in evidence-in-chief, and that the Appellant was given an indication by the Commission about how he might proceed with such questioning.
In his written submission, the Appellant refers to the extracts from case law quoted, and submissions in relation to them made, by the Respondent. He states: "I am not equipped to fully analyse this." However, he does make some brief points in relation to the thrust of that case law.
The detailed written submissions made by the Respondent deal with each of the matters about which the Commission must make findings. Although those submissions assist the Commission, they are made by a party defending its decision against the contentions of the Appellant. Helpful as the Respondent's submissions are in identifying the issues and evidence in relation to them, they do not relieve the Appellant of discharging his onus of proof.
Ultimately, the Appellant has to prove each element of his case on the balance of probabilities. He cannot rely on the Commission or the Respondent to make his case for him or to fill in significant gaps in the evidence or his submissions.
These observations are not, and are not intended to be, critical of the Appellant or the way he conducted his case. Indeed, he conducted himself appropriately throughout the preceding. These observations simply illustrate some of the difficulties faced by litigants in person generally, and the Appellant in particular, when conducting an appeal.
The nature and cause of the injury
The injury and its cause were variously described in the original WorkCover claim form, the medical certificate of the same date, a report of a consultant psychiatrist, and the statement of stressors provided to the Commission in relation to this appeal.
The WorkCover claim form (Exhibit 5) was signed by the Appellant and dated 6 June 2013. For present purposes it is relevant to note that:
(a)the nature of the injury was stated to be "Anxiety;"
(b)the injury was said to have occurred "Dealing with failing project;"
(c)the injury was said to have happened in the office of Powerlink in Virginia;
(d)no date was nominated for when the injury occurred;
(e)the claim was for time off work and medical expenses; and
(f)a medical certificate was attached to the claim form.
The medical certificate dated 6 June 2013 (Exhibit 6) was provided by Dr Naidoo of the Courtyard Medical Centre, Kenmore. For present purposes, it is relevant to note that:
(a)the worker's stated cause of injury was "project falling behind being put in a bad ethical position company not following statutory process;"
(b)no diagnosis was listed, but the Appellant was described as "stressed and very anxious;"
(c)the unspecified injury was stated to be consistent with the Appellant's description of the cause;
(d)the Appellant was assessed as not able to work from 6 June to 14 June 2013 and was to be reviewed on 14 June 2013; and
(e)the treatment was to refer the Appellant to Dr Andrew Nielsen, a psychiatrist.
Having seen the Appellant for assessment on 14 and 16 June 2013, and 9 and 16 July 2013, Dr Nielsen wrote a report dated 16 July 2013 to Dr Naidoo (Exhibit 13) in which he diagnosed the Appellant as having "major depressive disorder and generalised anxiety disorder."
In a statement of stressors filed with the Industrial Registrar on 6 February 2014 (Exhibit 7), the Appellant stated that:
(a)the events that caused his injury occurred on multiple occasions between November 2012 and June 2013; and
(b)the work events (and the persons involved) that caused his injury were as follows:
"Powerlink managers as a group (Peter Briggs, Bob Baker, Alison Gray, Terry Miller and Melissa Azzopardi) refused to allow me to extend concessions they made to certain landholders to all other landholders affected by the same project. This resulted in two classes of landholders - a class who dealt with them who were advantaged, and a second class who dealt with me who were disadvantaged. As the nominal project manager, this left me looking like a liar and a cheat. I offered to leave the project on five occasions but was refused on the grounds that the project would suffer."
It appears from those documents that the nature of the injury was not expressed with any precision (if at all) before Dr Nielson's report, and that the descriptions of events said to have caused the injury have changed as the claim has progressed through the system. The causes of the injury are set out in most detail in the statement of stressors.
As Justice Martin, the President of the Commission, has stated in recent decisions:
(a) the process of filing and serving a list of stressors is used to identify those events or matters which an Appellant says caused the psychiatric or psychological injury;[5]
[5] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].
(b) the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[6]
[6] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8]
(c) the list of stressors is not, by itself, evidence;[7]
[7] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].
(d) mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[8]
(e) however the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[9] and
(f) the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[10]
[8] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].
[9] Blackwood v Adams [2015] ICQ 001, [17].
[10] Blackwood v Adams [2015] ICQ 001, [19].
The Appellant's case - an overview
On the basis of the evidence summarised above, I understand that:
(a)the Appellant's injury is a major depressive disorder and generalised anxiety disorder;
(b)the injury is said to have arisen out of, or in the course of, the Appellant's employment as a Project Manager at Powerlink (as particularised in the statement of stressors) and that the employment was a significant contributing factor to the injury; and
(c)the work events that are said to have caused his injury occurred on multiple occasions between November 2012 and June 2013.
In summary, the Appellant submits that:
(a)this case is not about reasonable management action because his injury arises not from management action but from the nature of the work he did as Project Manager on the project, as a result of which he suffered stress because he could be called a liar and a cheat; or
(b)in the alternative, if this case is about management action, then, in the terms of s 32(5) of the Act, the management action was not "reasonable management action taken in a reasonable way."
I note that the Respondent submits that the list of stressors makes it "abundantly clear" that the matters described relate to management action in connection with the Appellant's employment. That issue is dealt with toward the end of these reasons for decision.
In support of his case, the Appellant relies on oral evidence given by himself, Richard Golden (a landholder) and Dr Nielsen, as well maps (Exhibits 1-4) and numerous emails and other documents collated as Exhibit 17.
At the heart of his appeal is the Appellant's allegation that his injury occurred because he was required to be part of a process by Powerlink of cutting corners to get around problems that arose with the project. I note that Powerlink was not a party to the proceedings, and the Respondent does not act for Powerlink.
At the hearing, the Appellant described his approach in relation to this appeal in the following terms:
"I'm not asking the commission to conflict [sic - "convict"] Powerlink of anything. Anything bad I've said about Powerlink is only on the way to show other things. I was required by my job to be part of some behaviour that I wasn't comfortable with, but I thought was pretty dodgy. I was made to be the public face of that dodgy behaviour on that put me in an ethical bind not of my making.
This caused me distress. I tried to solve the problems within Powerlink unsuccessfully. Powerlink refused to let me exit this bind and, in fact, they put further pressure on me to conform to that dodgy behaviour - what I consider to be dodgy behaviour and at that point I left work on the 6th of June."
Although that is his gloss on his approach to the appeal, the evidence given and submissions made by him contained numerous allegations of conduct by Powerlink which he described using words and phrases such as "unreasonable," "unethical," "not open, honest, nor fair," "shonky," "dangerous," "improper," acting "in contravention to statutory requirements… and universally understood concepts of ethics," and other deprecatory expressions such as "sneak thru … then sneak away." In proceedings such as these, colourful or emotive language is not sufficient to achieve success. Evidence is required. As mentioned earlier, the Appellant bears the onus of proof in relation to the relevant statutory criteria.
The specific factors on which the Appellant relies and in relation to which evidence was given are listed in the Respondent's written submission as follows:
(a)the Appellant was being set up as the "fall guy" in relation to the project;
(b)after having negotiated access through 18 properties, the Appellant was removed from two (and then three) properties as someone else managed access in relation to them;
(c)the people from those two properties were given compensation beyond what was required by legislation and rerouting the power plan, which would cost the taxpayer millions of dollars and was unnecessary;
(d)the Appellant would look dishonest to the people with whom he had negotiated;
(e)the Appellant identified those people because he and they were from the bush;
(f)the prospect that the Appellant would meet people with whom he had developed a relationship and places he might do work in the future where he had been made to look "dishonest" because of the project;
(g)return to work plan.
Although it could be useful to assess the evidence and submissions in relation to each of those factors, ultimately that evidence must be considered by reference to the stressors nominated by the Appellant. To better reflect the order and terms of those stressors, the evidence will be considered by reference to the following topics:
(a)the different approach to concessions made or allowed by Powerlink's managers to landholders affected by the project (items (a), (b) and (c) above);
(b)the effect of that action on the Appellant's reputation (items (d), (e) and (f) above);
(c)Powerlink's refusal to accept the Appellant's offers to leave the project, and aspects of his return to work plan (item (g) above).
The different approaches to concessions made, or allowed, by Powerlink's managers to landholders affected by the project
At the heart of the statement of stressors, and hence this appeal, is the assertion by the Appellant that Powerlink managers as a group refused to allow him to extend concessions that they had made to certain landholders to all other landholders affected by the project. As a consequence there were two classes of landholders – a class dealt with managers who were advantaged, and a class dealt with the Appellant as Project Manager who were disadvantaged. The Appellant was critical of the content of the special arrangements which were made by others with some landholders, primarily because, in his opinion:
(a)those arrangements were contrary to the relevant legislation and Powerlink policy which he was directed to implement and did implement; and
(b)if such arrangements were to be negotiated, they should extend to other landholders.
Given the centrality of this aspect of his appeal, it is appropriate to look in some detail at the written and oral evidence relating to:
(a)some of the unusual features of the project which had a bearing on how Powerlink's access arrangements were negotiated;
(b)the usual arrangements that Powerlink sought to make for access to properties where transmission lines or substations were to be constructed; and
(c)the individual arrangements made with some landholders whose properties were affected by the project, including why and by whom those arrangements were negotiated.
Because the Appellant bears the onus of proof, I begin with his evidence in relation to this matter and his assessment of other evidence, before considering evidence given by and on behalf of others to whom he reported in the management structure of Powerlink.
Unusual features of the project: Some of the unusual features of the project are described earlier in these reasons (see [15] to [21]).
The Appellant also gave evidence about the unusual nature of the contractual arrangements with the gas companies that governed the project and the negotiating environment within which he and others operated on behalf of Powerlink. By comparison with the approximately 30 months usually taken for the standard regulated project, the contractual arrangements for this non-regulated project provided for a period of 19 or 20 months, with provision for liquidated damages. According to the Appellant, there were "risk and uncertainties far above what Powerlink is used to on a compressed timetable." Added to this was a difficult negotiating environment as a result of landowners negotiating with gas companies about access and compensation around the same time as Powerlink was seeking to negotiate with them about access to conduct the EIA before finalising the location of transmission lines and substation.
According to the Appellant, the overall cost of the project was about $1 million per kilometre. A kink in the line increases costs substantially.
The Appellant contends that a delay in the project led to Powerlink attempting to compensate by cutting corners to overcome obstacles. That included doing favours for people who were delaying the project on the basis of how much pressure they were applying politically and in the media. Such favours were over and above what was being offered to others involved in the project, above what was done in other projects elsewhere in Queensland, and were given over his objections. He categorised what was done as:
(a)violations of statutory process to achieve predetermined outcomes;
(b)discretionary payments for access to land and payments for legal costs associated with those access negotiations that did not come under the head of compensation under the Acquisition of Land Act 1967;
(c)malapportionment of the adverse impacts of the project
According to the Appellant, he "headed off" some attempts by Powerlink to "cut corners" with the "effect that my superiors were displeased." He was not able to head off some others.
To illustrate that submission, the Appellant contrasted the principles or approach set out in public documents produced by Powerlink (with which Powerlink usually complied) and some specific documents (primarily email correspondence) in relation to dealings with individual landholders which, he submitted, showed that Powerlink went outside its usual policies and practices on some occasions. He focused on two separate but related matters:
(a)arrangements for access by Powerlink and its consultants to individual properties;
(b)the payments which Powerlink would or would not make to individual landholders.
Usual arrangements that Powerlink sought to make: The steps that Powerlink usually follow for obtaining access to land that might be affected by power lines or substations are described earlier in these reasons (at [4] to [8]).
In relation to the types of payments which Powerlink would or would not make to individual landholders, the Appellant gave evidence that the policy of Powerlink was:
(a)to pay legal costs associated with the change of ownership, but not negotiations for access;
(b)to pay for general disturbance during construction;
(c)to make payments later in the project for access during construction;
(d)to have access agreements to ensure that Powerlink has ongoing access to its transmission line easements.
In support of his understanding of the policy, the Appellant referred to the following passage provided to him by Mr Briggs on 22 March 2013, apparently to go in a letter to particular landholders:[11]
"The Acquisition of Land Act 1967 does not provide for 'miscellaneous costs'. Compensation payment resulting from the acquisition of land rights under the Act are based on heads of claim. These heads of claim do not include any miscellaneous costs." (Exhibit 17 document 36)
[11] The Ladbrooks, whose negotiations with Powerlink are summarised later in these reasons for decision.
That proposition and others were set out in the following draft of a proposed paragraph prepared by Mr McBride[12] on 24 March 2013 for use by the Appellant:
"The ALA allows for compensation for a number of factors resulting from the acquisition including - any change to property value resulting from the easement acquisition, the number of structures on the easement, possible visual impacts, impacts on farming activities which increase the costs of operation. The ALA also requires that the dispossessed owner be paid reasonable legal and valuation costs associated with the filing of a claim for compensation. Powerlink will pay those costs once a claim under s19 of the ALA has been made and, importantly, once compensation has been settled. Legal and other professional fees prior to the acquisition of land (easement and freehold) will not be paid." (Exhibit 17 document 37, emphasis added)
[12] Powerlink's Legal Counsel.
The Appellant gave evidence that he understood that although limited legal fees could be paid, Powerlink did not "pay people to argue with us about access." The Act talks about paying for damage, it does not talk about paying for access.
Individual arrangements with some landholder: The Appellant's main example of the way in which Powerlink acted contrary to its policy involved dealings with Gary and Kerry Ladbrook ("the Ladbrooks") whose property was the proposed location for a substation and transmission line. Evidence was also given in relation to negotiations with some other landholders including the Taylors and Hairs (whose properties are immediately south of the Ladbrooks' property), and with Todd Wathen and Richard Golden (whose properties are to the south-east of the Ladbrooks' property). Powerlink proposed to erect transmission lines across those properties (see Exhibits 1 to 4).
In considering this evidence, it should be noted that, according to the Appellant:
(a)he was taken away from the negotiations in about the middle of June 2012 "with the effect that negotiations and consultation on my project was being done by others;"
(b)he was allowed back into the field about November 2012 ("only when the fieldwork and negotiations went sour") but was "in the background for all communications, or say all negotiations" with the Ladbrooks, Taylors and Hairs, and, although he had some email communications with those people, he was "doing what I was told;"
(c)during that period, Mr Owen more or less ran the project but others in Powerlink approached the Appellant asking for records of conversations with landholders and other records which he did not have. That situation, he suggested, illustrated his statement in an email to Mr Owen on 27 August 2012 that there would be confusion about lines of communication and responsibility.
It should also be borne in mind that the Appellant's stressors cover the period from November 2012 until June 2013. Consequently much of what follows provides background to those stressors.
Ladbrooks: The Appellant gave evidence that, contrary to the usual process, the Ladbrooks would not allow the consultants involved in the EIA to have access to their property until Powerlink had fixed an alignment that was acceptable to them, much of which was just to the north of their property and on their neighbour's property (i.e., John Zerk's property) running parallel with that boundary (see Exhibits 1, 2 and 3). That route was possibly 1.5 kilometres longer than the more direct route north-west across their property from the proposed location of the substation (see Exhibit 3). The Appellant referred to a contract negotiated between Powerlink and the Ladbrooks which included payment for access and for legal fees associated with it, and included maps showing a narrow 300 m corridor from the Yuleba North Substation northwards across their property on which the alignment was to be placed. He also gave evidence that the agreement was arrived at over his objections, in particular to the inclusion of maps "as this would lock Powerlink into that alignment unless the contract was repudiated. Either way, Powerlink would be in the wrong." The Appellant said that he was also concerned that the process for locking in the alignment was happening without reference to Mr Zerk who, he suggested, would have kilometres of additional transmission lines on his property and should have been consulted as much as the Ladbrooks.
The types of issues raised by the Ladbrooks, and the ways in which they were dealt with by the Appellant and other Powerlink officers are illustrated by the following chronology.
In an email dated 1 July 2012, the Ladbrooks sought confirmation that Powerlink "would cover all reasonable legal advice that we may require," noting that resource companies offer up to $7000 without question (Exhibit 17 document 3).
An issue arose involving correspondence about access arrangements. The Appellant gave evidence that he sent the Ladbrooks a permission to enter form, which was a standard form plus one paragraph that the Ladbrooks had insisted upon in relation to weed hygiene. Because he could not get the document to the other officer who was to meet with the Ladbrooks, the Appellant sent it directly to them by express mail so that it arrived in time before the other officer visited them. The Appellant understood that "for some reason they took it as being overbearing on my part, which it was not … It was our standard document and they'd requested it."
A series of emails dated 11 and 17 August 2012 between the Ladbrooks and Mr Owen (Exhibit 17 document 7) commenced with the Ladbrooks referring to a meeting on 27 July 2012 which opened with an apology for previous correspondence received by them from the Appellant, which Mr Owens agreed was "inappropriate and should never have been sent." They record that Mr Owens used the expression "damage control" and assured them that, with the newly established meeting on Powerlink's internal roles and responsibilities, this "abrasive approach" would not occur in the future. The staff concerned had been spoken to and Mr Owen hoped this would allow them "to move forward in a good partnership." The Ladbrooks understood that "all internal matters within Powerlink were now under control," and that they would be involved in the planning process for the easement across their land (that could take up to 10 or 12 consultations). They recorded that Mr Owens apologised for, and advised them to disregard, the Appellant's letter dated 18 July 2012 requesting a permission to enter form. They asked whether this meant they would be covered for the legal costs.
It is appropriate to note at this point that the Appellant was concerned that Mr Owen had apologised at his expense rather than explaining the story behind his letter. Consequently, Mr Owen "comes out of it looking like a good guy" and the Appellant is "the bad guy and they say it twice." In an internal email dated 15 October 2012,[13] Mr Owen described the circumstances that may have led to several landowners (including the Ladbrooks) complaining to the local member of Parliament about the Appellant's overbearing attitude. He suggested that the Ladbrooks were pleased to receive the letter from the Appellant but that several issues needed to be resolved. Subsequent emails involving several neighbours may have triggered the Ladbrooks' complaint. Mr Owen wrote:
"From my observation and involvement, Grant has always presented himself in a professional manner and followed the due process. He has addressed the landowners' questions and concerns. I consider that the adverse feedback is the result of the community 'Shooting the messenger' and has no legitimate grounds.
I fully endorse Grant's actions and herewith express a vote of confidence in his ability." (Exhibit 17 document 8)
The Appellant, however, observed that although Mr Owen was apologising to him, it was Mr Owen's style to be agreeable with the Appellant and then to be "off with somebody else and he is agreeable again and it just goes on and it's really hard to deal with."
[13] Addressed to Ms Gray, Mr Miller, Mr Baker, the Appellant and Mr Briggs.
In their email dated 11 August 2012, the Ladbrooks also noted that the second reason for the meeting on 27 July 2012 was in relation to no consultation with them as the landholder on study corridors and powerline alignments. They hoped that certain mapping had been taken into account so that the power line from the proposed substation would pass through their property in a straight line between two main dams, rather than bisecting their property, water points and cultivations. They identified variations on that alignment, and referred to MetroCoal's proposed pipeline through the same area as where they would prefer the powerline to go. Although concerned that they were getting "limited consultation" because of staff changes at Powerlink, they hoped that "a new alignment will allay our concerns." They also mentioned other matters.
Mr Owen replied to the Ladbrooks by email dated 15 August 2012 (and copied it to the Appellant). He advised them:
(a)Ross Thompson would be taking over the consultation role and that Mr Owen would take a role (overseeing the overall project and landowner contacts) to ensure there was a "continued transfer of knowledge and information;"
(b)that he had referred their issues regarding compensation and costs to another person[14] for response (which he understood had been sent in a separate email followed with a telephone conversation);
[14] Guy Naish.
(c)that until Powerlink understood the plans of MetroCoal, it could not commit to any alignment but would "make every endeavour to accommodate your requests" and had taken note of the property development, dams, cultivation etc and would ensure these were addressed in the development of the study alignment;
(d)that, due to matters beyond their control, the Appellant did not meet with MetroCoal as scheduled and the meeting was being rescheduled;
(e)that, as part of Powerlink's internal reporting process, the business unit manager (Mr Miller) was aware of the issues regarding this project and land and concerns.
In their reply by email on 16 August 2012, the Ladbrooks expressed their inference that they had "now been pushed to the back of the queue" and asked for a copy of the proposed (preliminary) powerline location. They asked for Mr Owen's opinion on whether their legal costs were now covered ("due to" the letter sent by the Appellant) and asked for a written apology for that letter. They also raised issues about the possible relocation of the proposed substation on less productive land and the extension of the study corridor to east of the substation and of their dam (as a "necessary step to help reduce impacts on our viability/sustainability and succession plans"). They asked whether it was necessary to resume 15 hectares when another substation would be no more than three acres. They requested replies by email with a map of the proposed (preliminary) powerline and a written apology. That would "be very much appreciated and would go a long way in assuring us we will see change due to genuine consultation with yourself and help to create a more positive view on Powerlinks ability to consult correctly and understand our rural issues."
Mr Owen sent an email to the Ladbrooks on 17 August 2012 providing interim responses to some issues and an aerial photo showing alignment options, including one that could be adopted if MetroCoal indicated that their lease area would extend in accordance with the proposal. He also noted that all substations are different due to the variety of voltages and the number of lines in and out of them. He was awaiting advice regarding the proposal there so that he could source photographs of the most likely ultimate development (Exhibit 17 document 7).
On 27 August 2012, Mr Owen sent an email to the Appellant in relation to the proposed substation site and line north in the Ladbrooks' property. He stated that he would send through the KMI for the entire line "as it is somewhat to the west of the preliminary alignment" (Exhibit 17 document 7).
The Appellant illustrated how he had expressed concerns about the arrangements being entered into with the Ladbrooks. On 12 November 2012, the Appellant organised a meeting to discuss the "early access/license to occupy that Andy [Owen] is negotiating with the Ladbrooks (site of the Yuleba N substation on CP.02155)." The meeting request message from the Appellant continued:
"There are a couple of issues to do with how this is unfolding that are really concerning me. I would value input from you all.
Andy, please do not make any further undertakings or information with the Ladbrooks for now." (Exhibit 17 document 9)
According to the Appellant, the meeting with him was attended by Ms Gray, Mr Baker,[15] Mr Owen and Mr Briggs, and that everyone agreed that it was not a good idea to have those maps in the agreement. The Appellant asked Mr Owen, who was negotiating the agreement, whether he really wanted to have maps included as they would become terms of the contract. According to the Appellant, Mr Owen said he would take them out. One day later, the Appellant found that the maps had not been taken out and asked him again. Mr Owen said the maps were not going to be in the agreement, but they were there some days later.
[15] Mr Baker could not recall that meeting and could not say with certainty whether or not he was there, but he suggested that he may not have been present.
On 15 November 2012, Mr Owen sent the Appellant by email a plan for inclusion in the licence agreement. That day he also sent to the Ladbrooks and their solicitor, Ari McCamley, an updated Licence Agreement. It appears from that correspondence that:
(a)the Licence Agreement provided for Powerlink to provide the Ladbrooks with notice prior to accessing their property;
(b)the Licence Agreement included agreement to pay a fixed sum for the Ladbrooks' legal costs that are directly related to the preparation and negotiation of the licence agreement (with the fixed sum based on figures provided by the solicitor), contingent upon the Ladbrooks signing the agreement;
(c)the Premises Plan annexed to the Licence Agreement had increased in area to include the area of the original Study Corridor (to satisfy Powerlink's obligations under the Sustainable Planning Act 2009) and a second area extending to the east to accommodate the possible MetroCoal amendment;
(d)Powerlink required a signed Licence Agreement no later than 23 November 2012, otherwise it would "have to utilise our other rights." (Exhibit 17 document 15)
According to the Appellant, he was not involved in the discussions about legal fees with the Ladbrooks. He stated that he understood that, consistently with the policy noted above, payments of the type made to the Ladbrooks had not been made previously. His contention was that the project was going badly and Powerlink had to cut corners to remove the obstacles. The Appellant also stated that, had the Ladbrooks refused to grant access, Powerlink had standard procedures under s 36 that had already been used in this project. In his view, the s 36 route would have taken less time than to negotiate the agreement.
There was internal email correspondence on Tuesday 20 November 2012 about the possible issue of notices under s 36 of the Acquisition of Land Act1967 in relation to some land owners in the Surat Basin. One email from Mr Briggs noted that the Ladbrooks had until the close of business on Friday to provide Powerlink with a signed access agreement. "Should a signed agreement not be forthcoming, Powerlink will consider the issuing of s 36 to the Ladbrooks to access their property." He stated, however, that there was a possibility that the Ladbrooks would sign the agreement. (Exhibit 17 document 11, see also document 12)
The Ladbrooks then had an exchange of emails on 21 and 22 November 2012 with Mr Owen in relation to the areas of possible study (including beyond the area 300 metres either side of the potential study alignment) and logistical arrangements for the conduct of studies on their property (Exhibit 17 document 15).
On 20 November 2012, the Appellant replied to Mr Owen by asking whether they needed "to have a line in there at all?" He asked whether they could not just show "the area" which was his understanding of the last two meetings. Mr Owen replied by email on 21 November 2012 stating that the area indicated was "consistent with the 300 m offset from the MetroCoal and accepted, notional alignment" and was a "Potential study alignment" "for discussion." He stated that the EIS and approval process still needed to consider principles of ESD "before anything can be locked in." The Appellant replied that day stating that Mr Owen did not answer his question. He continued "My understanding was that NO alignment would be shown. I gather that regardless, it has gone out with an alignment shown?" (Exhibit 17 document 13)
[100]Mr Owen replied to the Appellant by email on 22 November 2012:
"It is your preference that no alignment was to be shown. The hachured area surrounds the notional Metrocoal alignment and focuses on an area of interest. See Amanda and Andrew S's emails regarding the extent of the study. Also note mine from 4:24 yesterday reinforcing the urgency.
At some stage we need to show the landowners the revised study alignment which is being considered for the line route investigations.
I am currently in a discussion on this issue with the ladbrooks, which is better dealt with at this stage than at the objection or designation submission stage." (Exhibit 17 document 13)
[101]On 22 November 2012, the Appellant sent an email to Ms Gray, Mr Baker, Mr Briggs and copied it to Mr Owen. It read:
"Am I going crazy?
Did we not go around the table at the meeting on 12/11/2012 and agree that an alignment shown as part of the Ladbrooks agreement would be a really bad idea?
And did we not agree at the meeting with Mark McBride[16] on 15/11/2012 about the same thing?
[16] Mr McBride was Legal Counsel for Powerlink.
And has it not come to pass that the Ladbrooks are using the alignment as 'the' alignment for what is in effect a contract, even before the agreement has been signed?" (Exhibit 17 document 13)
[102]Mr Briggs replied to the Appellant that afternoon by email. The email was also sent to Ms Gray, Mr Baker, Mr Owen and Kerrie Brown.[17] He wrote:
[17] One of the Legal Counsel at Powerlink.
"As discussed in our recent meeting, preference is usually given to ensuring that that until a environmental consultant has had the ability to survey/ground truth the study corridor, Powerlink should not be taking [sic talking] specifically to landholders about possible alignments or alignment changes within this study corridor. Any such discussions would be premature and potentially would be subject to challenge as the alignment being discussed would not consider a balance between social (such as landholder concerns), environmental (consultant observations as the environmental experts) or economic aspects of the project. If an alignment is needed for discussion purposes, then the alignment should be that reflected in the PAR[18] prepared for the project which has considered such aspects from a desktop assessment.
[18] PAR is the preliminary alignment report, part of the initial desktop investigations in preparing a corridor selection report.
With the current project, it is understood that discussions occurred with landholders about alignments different to that presented in the PAR. Information provided to landholders in the past cannot [be] retracted and we will need to manage how to best address this moving forward.
It is also worth noting that environmental aspects cannot be ignored when making decisions about alignments unless the environment is homogenous within the study corridor/locality. Changes to the preliminary alignment in the PAR should only occur after access to properties and ground truthing has been carried out. This usually occurs after field surveys and before the release of the final EIS - this is when Powerlink ideally should be discussing specific alignments with landholders.
The challenge faced is some landholders have expectations in relation to potential alignments before ground truthing has been completed, and that they require acceptable alignments to be presented to them before property access is given. This is something that Powerlink has not faced in the past to the extent on these projects and has possibly been influenced by the methods [of] gas companies to obtain access to properties.
I understand your concerns in relation to including an alignment in any access agreement with landholders, especially if such an alignment is different to that in the PAR. As discussed and was agreed in our recent meeting, access negotiations should be based on access to the study corridor and inclusion of areas which the landholder may wish Powerlink to also investigate (the additional area does not necessarily mean Powerlink will place a line there, but allows Powerlink to assess/address alternative alignments landholders believe Powerlink should pursue).
I am sure Andrew understands the risks of deviating from the above and any negotiations with the Ladbrook family considers these risks." (Exhibit 17 document 14)
[103]The Appellant described that email as:
(a) setting out the proper policy;
(b) being reassuring to the Appellant while providing a "gentle dig in the ribs" to Mr Owen;
(c) not addressing the fact that the maps are in the agreement even though at the previous meeting they had agreed it was a bad idea.
He also characterised the lack of response from Ms Gray and Mr Baker as indicating that they expected Ladbrooks to insist on the agreement, and that they "were okay with this" even though it was "a big bit shonky."
[104]The Ladbrooks signed a Licence dated 28 November 2012, extracts of which were in evidence (Exhibit 9). Those extracts show that:
(a)a licence fee of a specified amount was to be paid;
(b)the licensee would have access to and from those parts of the land identified in the plan as "Approved Study Corridors" and "Addition to Study Corridor," excluding the main residence and farm infrastructure within 200 metres of the main residence;
(c)EIS investigations could be carried out by GHD to commence on 30 November 2012;
(d)the licensee was to give notice of its intention to access the property, and the anticipated duration and permitted use to be carried out during each period of access;
(e)the licensee would reimburse the licensors the fixed specified amount for the reasonable legal costs and outlays associated with the negotiation, preparation and execution of the licence agreement.
[105]On 28 November 2012, Mr Miller sent an email advising of the "Good News" that the landowners had agreed to the early access agreement for the "critical substation site" on the Ladbrooks property. He noted that would allow on-site environmental work to proceed without the need for a s 36 notice. Ms York, the CEO of Powerlink, congratulated Mr Miller and the team working on this. Mr McBride, legal counsel for Powerlink, replied that Powerlink "did give a fair bit away," but Mr Miller stated that "not having the central substation site locked down early in the process can lead to rework costing hundreds of thousands of dollars."
[106]The Appellant said that he "hit the roof". He replied to Mr Miller (and the other addressees) as follows:
"I could not disagree more.
The landholder consultation process of which this is a part has been circular, fainthearted, counter to PQ's processes and its overall interests, and has cost my project at least six months.
This agreement includes an alignment against my wishes and against an agreement of all Network Property staff involved that could not have been clearer. I firmly believe this will come back to haunt us.
I was sidelined throughout this but now it becomes a problem for me to deal with.
For example, Todd Wathen down the road was initially hostile and uncooperative. Since I took back landholder consultations in October he has been cooperative. He also has a substation site on his property (NB the APLNG gas plant at Combalula i.e. Dinoun S will remain his land).
I request that the same payments (albeit with less legal costs) and the same advantages be given to Todd Wathen also. Otherwise my name and PQ's name will be mud with Todd Wathen in particular and the other landholders in general once the Ladbrooks settlement is known." (Exhibit 17 document 17)
In his oral evidence, the Appellant explained that Mr Wathen would be more affected than the Ladbrooks as he had a gas plant (which is several hectares of pumping station and dewatering station) as well as a greater length of transmission line and a substation. The point the Appellant was making was that if Powerlink was going to do things for the Ladbrooks they should also go out to Mr Wathen.
[107]On 29 November 2012, Mr Briggs sent an email to the Appellant suggesting that they catch up with Ms Gray and possibly Mr Miller the next day to discuss "some business decisions which are made from time to time and which can impact on the delivery of a project." He noted that such decisions are often outside the direct control of the Project Manager, but need to be accommodated through the delivery of the project. He continued:
"These decisions may also be contrary to our own thoughts or the approved project schedule and estimate…however, we (PMs and SPMs) often do not fully appreciate the political, legal or business environment that influence the decisions which are made (and why possibly others are paid the big biscuits to make such decisions).
There are possibly a number of business decisions associated with the APLNG project which will impact on the delivery of this project. These decisions will also create lessons learnt for future non-regulated (fast tracked) projects.
We can discuss further when we catch up." (Exhibit 17 document 18)
[108]On 5 and 6 December 2012, there was an email exchange between the Ladbrooks and Powerlink officers about access to the Ladbrooks' property for the week from 17 to 21 December 2012 to carry out geotechnical investigations in relation to the project. Mr Owen then advised Mr Thompson about how to deal with an access issue. On 7 December 2012, the Appellant sent an email to Mr Owen expressing his preference that Mr Owen "go through me when making arrangements like this. Saves multiple lines of communication and confusion." Mr Owen replied by email, apparently agreeing but stating he was dealing with it as "an access issue relevant to the conditions detailed in the Agreement." He asked whether the Appellant wanted to "catch up" about some issues. The Appellant replied:
"Regardless, I want you to do me the courtesy of going thru me as the Project Manager.
As before: if you want to run the project, run the project, as the Project Manager. Otherwise, allow me to run it.
Advice is welcome, but it is not acceptable to me that you come in from outside and make decisions leaving me with all the responsibility but not the control." (Exhibit 17 document 19)
Mr Briggs then sent an email requesting a meeting with the Appellant and Mr Owen as "we need to sort this one out."
[109]On 4 January 2013, Mr Owen sent to Mr Briggs and other Powerlink officers (but not the Appellant) his proposed response to the latest email from the Ladbrooks. Mr Briggs replied in detail to Mr Owen and the other addressees and the Appellant. He commenced:
"It is important to include in the response to the Ladbrooks that much of the information raised in their correspondence will be addressed in the EIS/EMP and answering specific questions may be seen as pre-empting the findings of the environmental assessments and the EIS. The Ladbrook family, along with all other landholders will have the opportunity to review and comment on the draft EIS/EMP. …"
Having made specific suggestions about proposed responses to the numbered items, Mr Briggs concluded:
"Please also ensure all that Grant [i.e., the Appellant] is cced in any correspondence relating to the substation development on the Ladbrook's property, especially since Grant is the PM for this project." (Exhibit 17 document 22)
[110]The Appellant gave evidence that the approach taken by Mr Briggs was correct, and was the policy as Mr Briggs had explained to the Appellant previously. It was consistent with the statement in Project Newsletter 1 that "All comments received on the Draft EIS reports will be individually responded to and addressed in the Final EIS reports, and submitters will receive a formal response to any matters raised." The Appellant noted, however, that he was unaware what the numbered demands made by the Ladbrooks were because he was "out of the loop." He also noted the "bit of a dig" at Mr Owen in the final sentence of the email.
[111]The Appellant tried to arrange a discussion with Mr Owen about the Ladbrooks and a meeting before the release of the EIS. When the electronic invitation was declined, the Appellant wrote to Mr Owen on 31 January 2013:
"My view as the relevant PM is that there should be no meeting pre the release of the draft EIS. This was the previous understanding.
If necessary, I (and Nicole if she agrees) will provide a briefing to the Ladbrooks post release, as for other stakeholders with multiple project involvement. This was the previous understanding." (Exhibit 17 document 27)
[112]Mr Owen replied that day saying that he understood the Appellant's "frustrations." He explained that when the matter was discussed previously the draft EIS was scheduled for release in early February and the review of the Ladbrook issues by Michael Brown ("MB")[19] had not been undertaken. It now seemed that the draft EIS may be available several weeks later than indicated, and Mr Brown's emails had reinforced "recommend all relevant PQ staff attend meeting with landowner prior to release of Draft EIS." That approach was about reducing the risks of an extended objection process with the Ladbrooks. Mr Owen concluded:
[19] Michael Brown was another project manager.
"I am prepared to assist where required to deliver the project (with my head suitably retracted).
Willing to discuss and chart a way forward." (Exhibit 17 document 27)
[113]On 1 February 2013, the Appellant replied to Mr Owen:
"Thanks, to you and to MB, but this has been discussed and the bottom line is that the Ladbrooks will do what the Ladbrooks have always done, and we are already locked in to dealing with their inevitable objections and submissions.
Keep in mind there is precious little to be gained and a lot to risk by meeting them out of sequence. Landholders up and down the line will demand the same and also take it as special treatment. I have answers to all of their gripes to date but wouldn't have an answer to that one." (Exhibit 17 document 27)
[114]A series of emails between the Ladbrooks and Powerlink officers from 31 December 2012 which traversed issues raised by the Ladbrooks culminated in an email dated 5 February 2013 from them to Mr Owen and others (including CEO Merryn York and the Appellant). That email concluded "We require a meeting in the next week and our issues need to be addressed prior to the release of the draft EIS." (Exhibit 17 document 28) In his oral evidence, the Appellant highlighted that statement as indicating where the pressure on Mr Owen was coming from. He stated that if Powerlink agreed to the demand that their issues be addressed before the release of the draft EIS, Powerlink would be in breach of its obligations under s 207 of the Sustainable Planning Act 2009 in relation to adequate environmental assessment.[20] In another email that day, the Ladbrooks wrote:
(e)the Appellant's relationship with his employers and being upset with his employers was not the cause of his injury at all, but rather the cause of his injury was that he had been, and would be, looked down on or humiliated by people with whom he identified;
(f)people behaving unethically would not have caused him so much distress and definitely not the amount of distress that caused the psychological injury, nor would a requirement that he be involved in unethical dealings;
(g)the Appellant had been distressed because, as a consequence of being obliged to act unethically, he perceived that he was going to be faced with people when he was walking down the street who would think poorly of him or even be physically threatening to him;
(h)nonetheless the Appellant's injury was caused by work.
[313]Appellant's submission: The thrust of the Appellant's case is set out as follows in the concluding summary to his written submissions:
·"Grant Roberts was required by his job to be part of some pretty dodgy behaviour by Powerlink. This was done due to pressure of a contract that they had negotiated. The effect of this was that there were winners and losers, be they adjoining landholders, landholders elsewhere in the project area, or stakeholders elsewhere in Queensland.
·He was made be the public face of that dodgy behaviour which put him in an ethical bind not of his making, and this caused him distress;
·Powerlink kept on with their dodgy behaviour regardless of his efforts to solve the problems;
·Powerlink refused to let him exit the situation or at least not without penalty, for their own expediency, even after they acknowledged the effects on him;
·Powerlink produced a badly done and badly intentioned RtW Plan that made things worse;
·Powerlink applied further pressure to make him conform;
·Powerlink punished him for not conforming; and
·Eventually this caused an actual injury and he had to leave work on 6th June 2013."
[314]The Appellant submits that a global approach should be taken when analysing these matters. He contends that the earlier items in the list by themselves may only have caused aggravation not injury, had Powerlink taken "the perfectly feasible options that were open to it." But taken together, they become a "cascade of actions by Powerlink, each compounding the effects of the previous actions, and with an increasing degree of injuriousness. The list then becomes something that cannot be discarded on the basis of requiring 'absolute and unremitting solicitude for an employee's mental health'."
[315]Respondent's submission: The Respondent submits that the Appellant's injury did not arise out of and was not caused by his employment. The Respondent's submissions in relation to specific stressors are set out earlier in these reasons.
[316]The Respondent submits that, on the basis of the medical evidence, the Appellant's claim is that, because of what had occurred in the workplace, at some undefined stage in the future the Appellant may encounter those people with whom he felt he had a kinship, and they would react negatively to him because of what had occurred during the Powerlink project. That claim should not succeed.
[317]The Respondent submits that the most important issue to have arisen from the evidence is whether the Commission can still find employment is a significant contributing factor in circumstances where the events have not occurred as described by the Appellant and/or it is the Appellant's perception of events occurring in the workplace that is that significant contributing factor to his injury. Critical findings of fact must be made in respect of those matters that are said to be causally connected with his injury. Where those matters arise from the Appellant's perception of events occurring in the workplace, or have not occurred, his employment cannot be a significant contributing factor.
[318]The Respondent submits that the Appellant's employment was not a significant contributing factor to his injury because, in summary:
(a)although the Appellant raised his concerns about the processes in relation to the project (including the special compensation arrangements with some landholders and the rerouting of the alignment of the proposed powerline), there is no evidence to support a finding that those "stressors" as described to Dr Naidoo and Dr Nielsen are factually correct, and his claims are far from reality;
(b)the only evidence given by the Appellant of rerouting of the alignment of the proposed powerline was for an extra 1.5 kilometres (because of the slight alteration to the alignment on the Lambert property), which is not evidence of excessively long routes from one place to another and hence this claim is grossly exaggerated or fictitious;
(c)although the Appellant's complaint to Dr Nielsen was that taxpayers were footing the bill, the Appellant was aware that the work being undertaken by Powerlink was a non-regulated commercial contract, and any additional expenses were being met within the terms of the contract, and hence there was no foundation to conclude that his claim was based on objectively identifiable facts occurring in his employment.
[319]Consideration and conclusion: On the basis of the evidence set out in length earlier in these reasons for decision, I find that:
(a)the Appellant considers himself to be open, honest and fair;
(b)the Appellant has obsessional personality traits (i.e., he likes things to be ordered, and to be ethical and have things done correctly, and is concerned about being humiliated, rejected and looked down upon by others);
(c)the Appellant held strong ethical objections to some of the actions of Powerlink in negotiating access and other agreements with, and paying the legal costs of, some landholders but not others - apparently on the basis that he considered that all comparable landowners (on the basis of project impacts) should receive comparable treatment;[40]
[40] He also highlighted the related concepts or values of honesty and all stakeholders having equal importance. As the Respondent points out in its written submissions in reply, this concern of the Appellant is curious if it means that he now accept the benefits of the agreement reached with the Ladbrooks so long as comparable benefits go to other landholders in similar circumstances, while same time contending that Powerlink's conduct in entering into the agreement was unethical and bordering on fraudulent activity.
(d)the Appellant held, and expressed to management, concerns about aspects of the way in which the project was being managed, in particular the types of arrangements that were entered into, and payments made to, some landholders in order to secure access to their properties prior to the construction stage;
(e)the Appellant's concerns were based on a number of factors, including his assessment that:
a.there would be significant additional costs (to the billpayers and taxpayers) of relocating the proposed powerline;[41]
[41] In particular an extra $1.5 million in the single case of the Ladbrooks.
b.statutory requirements for EISs were not being met in the way the process was administered,[42]
[42] E.g., outcomes being determined during the EIS access negotiations before EIS work had taken place to please noisy landholders and at the expense of less noisy landholders, and certain stakeholders being given the opportunity to access a draft EIS prior to its public release to ascertain whether they would object to any content and potentially change at content.
c.discretionary payments were being made for access to land prior to the EIS process, which payments were not based on heads of compensation under the Acquisition of Land Act 1967 (i.e. for obtaining easements or resuming land) and which were being made using community resources (which should not be paid "willy-nilly" by a government owned monopoly provider of essential infrastructure to get managers out of a bind of their own making, and hence were improper);[43]
[43] As the Respondent points out in its written submissions in reply, this concern is at odds with the submission seeking comparable treatment of landholders, and ignores the evidence (particularly that given by Mr Briggs) that those payments were being met within the terms of the contract.
d.it is not policy that certain landholders are compensated by getting preferential treatment because they are in some way "more impacted" or "more important," and it is not policy that this be done to grease the wheels at the start of the project before its impacts are fully established;
e.the different arrangements were not restricted to practical details;
f.Powerlink knew that it was acting against its own policies;
g.Powerlink consciously kept the special deals secret (and the Key Messages document in May 2013 showed "a guilty mind" on the part of Powerlink); and
h.there was a lack of any substantive response on some occasions when he expressed his concerns to his managers;[44]
[44] In particular the "Am I going crazy?" email dated 22 November 2012.
(f)some matters (including decisions about whether a landholder was paid) were outside his responsibility as Project Manager;
(g)there are internal inconsistencies in the Appellant's espoused reasons for his concerns;
(h)although managers acknowledged his concerns, and sometimes took steps to deal with them, they continued with some actions that caused the Appellant distress;
(i)the Appellant understood himself to be the face of the project to the affected landholders, tried to work within the system to manage upwards in relation to the issues he identified, and considered that he suffered for speaking up to Powerlink management; and
(j)the Appellant considered that the cutting of corners on a statutory process for the EIS was a serious violation of his professional standards as an engineer and feared that, if and when this was exposed, he would be blamed for what he saw as the unfair treatment of some landholders, and it would be a serious risk to his reputation and future employment prospects.
[320]As will be apparent from the analysis earlier in these reasons, some of his concerns, beliefs or assessments about Powerlink's actions were based on incorrect information or misconceived perceptions. However, the actions of Powerlink were real and not imagined. The Appellant understood the relevant policies of Powerlink, some of which were reiterated to him in written communications from other Powerlink officers. He observed actions taken by Powerlink which were inconsistent with the stated practices which he had followed, and which went beyond the statutory requirements. He made those observations from the vantage point of a Project Manager, albeit that the actions about which he felt most concerned were taken by officers over whom he had no control, and were beyond the areas for which he had day-to-day operational responsibility at the relevant time.
[321]It is apparent from my findings elsewhere in these reasons for decision that the Appellant has not succeeded in proving key stressors, either because he was wrong or there is insufficient evidence to support findings in his favour. However, the Appellant experienced symptoms of what would ultimately be diagnosed as major depressive disorder and generalised anxiety disorder during the period when he was working as a Project Manager on the project and in response to actions taken by his managers in relation to the project. Although his perceptions or concerns about some of those actions were misconceived, some were not (e.g. the potential for other landholders to demand similar agreements to that entered into with the Ladbrooks, with consequent delay and cost for the project). Accordingly, I find that his disorder arose out of, and in the course of, the Appellant's employment.
[322]There is no suggestion that those symptoms were caused by anything other than the Appellant's employment or that they were an aggravation of a pre-existing condition. Accordingly, I find that the Appellant's employment was a significant contributing factor to the injury.
Is the Appellant's injury removed from the statutory definition of "injury" because of s 32(5) of the Act?
[323]As noted earlier, even where the Commission is satisfied that a worker's injury arose out of, or in the course of their employment and their employment was a significant contributing factor to the injury, their application for compensation will be dismissed if the psychiatric or psychological disorder arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.
[324]Given my findings that:
(a)the Appellant's injury arose out of, or in the course of, his employment; and
(b)his employment was a significant contributing factor to his injury,
it is necessary to decide whether s 32(5) of the Act operates to remove the Appellant's injury from the definition of "injury" in s 32(1) and hence that his appeal must fail.
The operation of s 32(5) of the Act
[325]The extent and limits of the operation of s 32(5) of the Act have been described in decisions on previous workers' compensation appeals.
[326]In Q-COMP v Queensland Rail,[45] Hall P wrote:
[45] Q-COMP v Queensland Rail, Decision C/2011/26 at [11].
"Section 32(5)(a) of the Act operates, inter alia, to deny a worker access to statutory benefits under a no-fault scheme notwithstanding that the injury exists, notwithstanding that the injury arose out of or in the course of the worker's employment and notwithstanding that the employment was a significant contributing factor to the injury."
[327]For the present appeal to succeed, the Appellant needs to establish that:
(a) his psychiatric or psychological disorder did not arise out of, or in the course of, management action, whether reasonable unreasonable; or
(b) if it does so arise, such action was not reasonable or taken in a reasonable way (in other words that management action was unreasonable or taken in an unreasonable way).
[328]In Q-COMP v Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[46] In relation to those statutory qualifications, Hall P wrote:
[46] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).
"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[47]
[47] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).
[329]In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[48]
[48] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).
[330]In Lackey v Workcover Queensland,[49] Hall P accepted that:
[49] Lackey v WorkCover Queensland (2000)165 QGIG 22.
"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"
The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[50]
[50] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stephens Brothers Pty Ltd (1984) 154 CLR 552, 555 and 559; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505.
[331]In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[51] Hall P stated that the statutory provision:
[51] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003)172 QGIG 6, 6-7.
"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way. It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way." (emphasis added)
[332]He continued by reiterating that it was settled by the decision in Avis[52] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[53]
[52] Avis v WorkCover Queensland (2000) 165 QGIG 788.
[53] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 , 7.
[333]However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[54] In a recent decision, Martin J expressed his agreement with the reasoning in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[55]
[54] See Q-COMP v Hohn (2008) 187 QGIG 139, 144; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.
[55] Davis v Blackwood [2014] ICQ 009, [51].
[334]There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[56]
[56] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197. See also Re Yu and Comcare [2010] AATA 960.
[335]In Bowers v WorkCover Queensland,[57] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
[57] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).
[336]There are also decisions to the effect that:
(a) what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[58]
[58] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C).
(b) it is not necessary that management action be perfect or above criticism,[59] and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[60]
[59] Misevski v Q-COMP, C/2009/29, 6 November 2009, [27]; Christine McHours v Q-COMP, C/2012/12 [10].
[60] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.
[337]In Prizeman v Q-COMP,[61] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
[61] Prizeman v Q-COMP (2005) 18 QGIG 481.
[338]In Svenson v Q-COMP,[62] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it." Hall P continued:
[62] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).
"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred. But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)."
[339]For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility for management action being taken in a reasonable way lies with the management. Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[63]
[63] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision < , [21]
[340]The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[64] As Martin J stated:
[64] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.
“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[65]
[65] Davis v Blackwood [2014] ICQ 009, [47].
[341]Appellant's submissions: The Appellant submits that:
(a)management action is not the issue in this case because management action was not "taken" in the active or direct sense[66] and therefore s 32(5) of the Act does not apply; and
[66] See Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810.
(b)in any case, Powerlink management action was not "reasonable management action reasonably taken" and therefore s 32(5) of the Act does not apply.
He also contends that no amount of stretching of the language or logic will make Powerlink's behaviour fit the standard of reasonable management action, reasonably taken.
[342]Respondent's submissions: As noted earlier, the Respondent submits that the list of stressors makes it "abundantly clear" that the matters described relate to management action in connection with the Appellant's employment. The Respondent submits that there is a causal connection between the Appellant's injury and management action, and that the reasonable management action provisions of the Act will operate to exclude the injury.
[343]The Respondent also submits that the two legs of the Appellant's submission confuse elements of s 32(5) of the Act. In particular, the Respondent points out that s 32(5)(a) refers to reasonable management action taken by the employer "in connection with the worker's employment," whereas s 32(5)(b) refers to the worker's expectation or perception of reasonable management action "being taken against the worker." The Respondent refers to a statement in Parker v Q-COMP to the effect that s 32(5)(a) is not about reasonable management action taken in a reasonable way "against" a worker and there is nothing in the language of that paragraph to suggest that it is confined to management action taken in a reasonable way solely in connection with the claimant worker's employment.[67]
[67] Parker v Q-COMP (2007) 185 QGIG 269, 272 (Hall P)
[344]The Respondent does not submit that the management action in question in this case was management action being taken against the worker, and accepts that s 32(5)(b) of the Act does not apply.
[345]Rather, the Respondent submits that there is a causal connection between the Appellant's injury and management action, and that the reasonable management action provision of s 32(5)(a) of the Act will operate to exclude the injury.
[346]Where it is factually possible and appropriate to do so, an Appellant may seek a global assessment of multiple aspects of management action out of which, or in the course of which, the condition has arisen, and thereby exclude the operation of s 32(5).[68]
[68] See Delaney v Q-COMP (2005) 178 QGIG 197, 198.
[347]The Respondent submits that, having regard to the circumstances of this case and relevant decisions of Hall P,[69] it is appropriate to deal with the stressors in this case globally, given the temporal link between the matters complained of and because the personalities involved were relatively constant.
[69] Delaney v Q-COMP (2005) 178 QGIG 197, 198; Q-COMP v Whyte C/2009/32, [21]-[24].
[348]As noted earlier, the Appellant agrees that a global approach should be taken.
[349]The Respondent submits that, having regard to the Appellant's list of stressors and the way management dealt with each of those matters, s 32(5)(a) applies in relation to this appeal because reasonable management action was taken in a reasonable way by the employer in connection with the Appellant's employment. In particular, the Respondent submits that:
(a)although when Powerlink first started the project it thought that it was going to be like other projects and the Project Manager could manage the relationships, as it became apparent that there was more complexity to the project because of what the gas companies were doing, Powerlink acted reasonably in responding to the changes and the pressure being put on the Appellant and relieved him of some aspects of the project manager's role (by adding other community contact officers) and that action was taken in a reasonable way;
(b)the Appellant's managers at all times communicated to him that they understood any reasons for the delay in the project were not of his making;
(c)there is no evidence to support a finding that Powerlink was involved in inappropriate conduct when its provided compensation to certain landholders beyond what was required by the legislation and by rerouting parts of the powerline;
(d)rather there was evidence that Powerlink had previously entered into agreements with landholders similar to that which had been entered into with the Ladbrooks and, simply because that was not common practice does not make the decision to enter into the agreement with the Ladbrooks on this occasion improper;
(e)indeed the Appellant's evidence was that he had no objection to the agreement provided there was consistency in treatment with other land holders;
(f)given the particular circumstances of this project, including complications caused by the gas companies' activities, it is absurd to suggest that Powerlink developing work practices in view of the changing pressures was anything other than reasonable management action taken in a reasonable way in connection with the Appellant's employment;
(g)there are no circumstances in which the Appellant could be found to look dishonest to the people he had negotiated with, and the management action taken by Powerlink in relation to those matters was reasonable and was taken in a reasonable way in connection with the Appellant's employment;
(h)in developing the RTWAP, the Appellant's managers adequately set out his concerns in professional language (without resort to words such as "liar" and "bastard"), and the management action undertaken by Powerlink in respect of these matters was reasonable and taken in a reasonable way in connection with the Appellant's employment.
[350]Consideration and conclusions: The statement of stressors suggests that there was a direct link between the actions of managers and the Appellant's injury. For that reason, and reasons outlined in [323] and [324], it is necessary to decide whether s 32(5) applies to this appeal.
[351]I agree, generally speaking, with the submission summarised at [349], and conclude that s 32(5)(a) of the Act operates in relation to the circumstances of this case.
[352]It is not necessary to repeat or expand upon the matters listed in [349]. I simply add that, although the agreements entered into with individual landholders (particularly the agreement with the Ladbrooks) went beyond the usual practice followed previously by Powerlink, the timing and content of the agreements was defensible for reasons explained earlier in these reasons for decision. Consequently I find that they constituted reasonable management action by PowerLink.
[353]Earlier in these reasons I concluded that what the Appellant described as offers to leave during the period covered by his list of stressors were not firm offers to leave but were openings to discussion about the Appellant's ongoing role in the project (see [255] to [257].
[354]If I am incorrect in that conclusion then, having regard to:
(a)the circumstances in which the offer or offers to leave were made;
(b)the absence of any medical evidence before Powerlink to suggest that the Appellant would suffer a psychological injury if he was not redeployed away from the project; and
(c)the preference of management to retain the Appellant's knowledge, skills and experience for the project (as well as the practical difficulty of replacing him at that stage in the project),
the decision of management not to redeploy the Appellant from the project is properly characterised as reasonable management action taken in a reasonable way by Powerlink in connection with the Appellant's employment. As it happens, the action taken by Powerlink comes within one of the examples of reasonable management action listed after s 32(5) of the Act, namely a decision not to award a transfer of the Appellant's employment.
[355]I do not find that every action taken by Powerlink in relation to the project was perfect or necessarily best practice. Nor is that necessary for s 32(5)(a) to operate here.
[356]As outlined earlier, the circumstances in which the project was implemented posed unusual challenges, and Powerlink had to respond to those challenges within the time and other constraints of the contractual arrangements. It is clear that the operational management structure for the project changed from time to time in response to those challenges, and that there were some differences in operational styles and gaps in communication which created difficulties for the Appellant and his managers from time to time. Managers (particularly Mr Briggs) attempted to remove or reduce those difficulties.
[357]There appears to be no significant suggestion that management action was not taken in a reasonable way. Indeed, the Appellant characterised the tone many of the discussions and the content of some of the emails in positive terms. His main criticism seems to be that, although they were polite and courteous, his managers did not accept and adopt the views he expressed. I find that management action was taken in a reasonable way.
[358]Having regard to the evidence as a whole, I am satisfied that the Appellant's psychiatric or psychological disorder arose out of, or in the course of reasonable management action taken in a reasonable way by Powerlink in connection with the Appellant's employment.
Orders
[359]For the reasons set out above, I am satisfied that:
(a) the Appellant was a "worker" for the purposes of the Act;
(b) the Appellant suffered a personal injury that is a psychiatric or psychological disorder diagnosed as a major depressive disorder and generalised anxiety disorder;
(c) the injury arose out of, or in the course of the Appellant's employment;
(d) the Appellant's employment was a significant contributing factor to the injury; and
(e) the Appellant's disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by his employer in connection with his employment.
[360]Consequently, the Appellant's claim for compensation is excluded by the operation of s 32(5)(a) of the Act and cannot be accepted.
[361]It follows that I should make the following orders:
(a) the appeal is dismissed;
(b) the decision of the Workers' Compensation Regulator is confirmed; and
(c) the Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
[362]Order accordingly.
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