Searle v Workers' Compensation Regulator
[2017] QIRC 92
•16 October 2017 28, 29 June 2017 and 17 August 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Searle v Workers' Compensation Regulator [2017] QIRC 092 |
PARTIES: | Searle, Carl v Workers' Compensation Regulator |
| WC/2016/64 | |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: HEARING DATES: | 16 October 2017 28, 29 June 2017 and 17 August 2017 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDER: | 1. The appeal is allowed; 2. The decision of the regulator dated 7 April 2015 is set aside; and 3. Costs are reserved. |
| CATCHWORDS: | APPEAL AGAINST DECISION - Psychiatric or psychological injury – unreasonable management action alleged – whether concerns about safety issues were responded to by management in a reasonable way - whether injury removed from s 32(1) by virtue of the operation of s 32(5). |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32, s 550. |
| APPEARANCES: | Mr D V Nguyen, Counsel, instructed by Black & Co Lawyers, for the Appellant; Mr G C Read, Counsel, directly instructed, for the Workers’ Compensation Regulator. |
Decision
Introduction
Prior to commencing work at Vicon in April 2013 the appellant had worked for Central Queensland Petroleum in the capacity of Fleet Manager. He commenced working for Vicon in the capacity of site manager. His role did not change following the take-over of Vicon by Enermech on 17 July 2013. During his time with Vicon, and for the majority of his time with Enermech, the appellant reported to the Gladstone Area Manager, Glenn Keogh.
The appellant, Mr Keogh, and the site secretary, Monique Searle, were based at a depot located at 8 Neil Street, Gladstone. However much of the appellant's work was undertaken on site, particularly the Queensland Alumina Limited (QAL) site where Vicon/Enermech held a high pressure water blasting cleaning contract.
While the appellant's responsibilities were varied, he maintained that his area of specialist expertise lay in the area of high pressure water blasting. He said that within Enermech there were two divisions, "high pressure water blasting" and "chemicals". It was his evidence that while he had a broad understanding of the regulatory regime associated with the transport and storage of dangerous goods, operational responsibility for the movement and storage of chemicals lay with the chemicals divisions of Enermech.
The appellant decompensated during a shift at the QAL site on 4 March 2014. He said that he had a breakdown, "walked off the site", and drove home in an upset state. He attended on his general practitioner the same day. He said that he was emotionally upset and concerned for his own health. He said that his doctor suggested that he was suffering from depression and anxiety. His doctor issued a medical certificate containing a diagnosis of "severe depression/sleep disturbance". Subsequently, after suffering an anxiety attack, anti-depressants were prescribed and he was referred to a psychiatrist.
On 19 March 2014, the appellant lodged an application with WorkCover claiming a psychological condition due to a lack of communication from upper management and increased workload caused by the loss of two staff from Gladstone. His application was accepted by WorkCover on 2 October 2014. However following a review of WorkCover's decision on the application of his employer, his claim was determined to be one not for acceptance.
The appellant was examined by Dr Foxcroft on 29 February 2016 for the purpose of completing an independent medicolegal report at the request of the appellant's solicitors. Dr Foxcroft's report, which is dated 16 March 2016, is in the evidence as Exhibit 15. Dr Foxcroft diagnosed a major depressive disorder which had arisen out of a chronic adjustment disorder with depressed and anxious mood. He noted that appellant had been totally incapacitated for work since March 2014 and concluded that the appellant's condition arose out of stresses in the workplace occurring between July 2013 and March 2014. In his report, Dr Foxcroft described the appellant's "History and Presenting Complaint" in the following terms:
"Mr Searle described a history of conflict with respect to the response by his management over a number of issues which occurred from the period July 2013 to March 2014. He had been working for Vicon Services and then this company had been taken over in July 2013 by Enermech. He had returned to work for Enermech under his previous manager Glen and was involved in providing occupational health and safety and training services along with general support and maintaining the area involved with high pressure blasting hoses and equipment. Mr Searle said that from the time the new company took over there was an increased difficulty in obtaining communication and response from management, particularly with respect to safety issues."
On the evidence, this record stands as a reasonably accurate version of events.
It was Dr Foxcroft's evidence that the appellant's psychiatric injury arose out of his employment with Enermech, and that the stressful events that contributed to the onset of the appellant's depression were primarily the lack of management action in relation to safety issues, particularly in relation to the issue of fire extinguishers and the storage of hazardous chemicals in the workplace. Other stressors alluded to in his report or in his evidence in the proceedings included:
(i)The appellant's dissatisfaction with the manner in which the take-over of Vicon by Enermech was being effected;
(ii)The appellant's belief that he may lose his job;
(iii)A dispute over the non-payment of commissions;
(iv)A pre-disposition to develop a mental illness.
Scope of Appeal
The respondent conceded that the appellant was a worker within the meaning of the Act; that he had suffered a personal injury; and that the injury satisfied the test of association with his employment. The respondent resisted the appeal on the basis that the appellant's injury was withdrawn from s 32(1) by virtue of the operation of s 32(5) of the Act. The relevant parts of the legislation are set out below:
32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if—
(a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
(b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the Regulator or an insurer in connection with the worker’s application for compensation.
The issue for determination in the appeal is whether the appellant's psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way by the employer; and/or whether the injury arose out of or in the course of the appellant's perception of reasonable management action being taken against him.
The medical evidence established that while there may have been multiple stresses in the workplace, the appellant was particularly concerned and frustrated with the failure of management to respond to his safety concerns. Consistent with this evidence, the appeal was defended on the basis that the management action associated with the safety issues was reasonable management action, reasonably taken.
The Evidence
A the heart of the appellant's case was an alleged failure by management to respond in a timely and adequate manner to concerns that he had repeatedly expressed about chemicals being stored at the Neil Street site. It was his view that the chemicals were not being correctly stored (T1-25):
"You’ve mentioned your concerns about those particular chemicals, what did – from your experience what was your particular concern about the threatened safety to the people and to yourself that was there?‑‑‑My main cause initially was the different types of chemicals that were accumulating at the depot; the mix matching, some were, perhaps, stored next to one another where they should have been at a particular type of distance; chemicals should have been bunded right throughout the plant, for example, there’s chemicals that need specific ventilation which we did not comply with."
The appellant added that there were hydroxide materials on site which should not have been stored with other chemicals also on site. Further, some chemicals were inappropriately left outside without protection from the elements. It was his evidence that the majority of the chemicals were highly corrosive and necessitated the use of personal protective equipment by those handing the chemicals.
There was a difference in the evidence about whether chemicals had been stored at Neil Street prior to November 2013. Mr Keogh's evidence was that prior to November 2013, chemicals had not been delivered to, or stored at, the Neil Street facility. Mr Niall Conlon's recollection was consistent with Mr Keogh's evidence in that he said that chemicals were first stored at Neil Street in the last quarter of 2013. However, Mr Hanna was of the view that chemicals would have been moved through the Neil Street depot throughout 2013. His assumption was based on the fact that every two or three months Vicon would do a chemical clean at QAL. He said that on this basis "we would have had chemicals going through" Neil Street.
The effect of Mr Hanna's evidence was that while the preferred course may have been to effect deliveries direct to QAL, in some instances transport logistics did not allow for that, and chemicals would travel to QAL via the Neil Street depot. He said that major long haul transport companies would deliver chemicals to Gladstone, and if temporary storage at Neil Street was necessary, a local contractor would shift the chemicals on to QAL.
The imprecise nature of Mr Hanna's evidence leads me to prefer the consistent view expressed by Mr Niall Conlon and Mr Keogh, the effect of which was that chemicals were not stored at Neil Street prior to October 2013.
The appellant said that he did not receive any prior warning of the arrival of chemicals and the effect of his evidence was that he had not been given any information regarding the type of chemicals despatched for delivery. Monique Searle's evidence was to the effect that no one at Neil Street knew about the chemical deliveries in advance. Mr Keogh said that the major deliveries commenced at the start of December 2013 and that he was unaware that deliveries were to be made.
Mr Hanna said that he could not recall whether his practice had been to inform Mr Keogh about chemical deliveries despatched to the Neil Street depot. He said that he would have emailed Mr Keogh, but agreed that he had not provided copies of any such emails in the disclosure process. He also said that if he placed an order for chemicals he would have told the appellant that a truck was due.
Other than Mr Hanna's view, there was no evidence of prior notice. While Exhibits 25 and 26 are evidence of some communication from Mr Hanna to Mr Taylor, and subsequently to Ms McKenzie, about the ordering or transport of chemicals, no similar documentary evidence was available confirming that either the appellant or Mr Keogh were informed about chemical movements.
Exhibit 25 disclosed that Mr Hanna had placed an order for chemicals on 3 November 2013 and had instructed the supplier to deliver the chemicals to a Mr Ross Taylor at the Neil Street depot. The effect of an email from Ross Taylor to Sarah McKenzie on 11 November 2013 (Exhibit 26) was to inform Ms McKenzie that Mr Hanna had placed an order with Orica for chemicals, presumably for delivery to Neil Street.
Mr Hanna said that Mr Taylor was the Enermech project manager for the Curtis Island contract, but he was based at the client's site, not at Neil Street. Ms McKenzie was the site administrator for Enermech's contract on Curtis Island whose duties included the logistics of chemicals and equipment. Ms McKenzie's unannounced arrival at Neil Street supports a view that she was not part of Mr Keogh's team and was independently reporting through to the chemical division.
The evidence of the appellant, Mr Keogh and Monique Searle was that Ms McKenzie presented at the office one day and said that she was assigned to the Curtis Island contract. Monique Searle said that Ms McKenzie made her and the others aware that "she was the administration for the chemicals in relation to the work on Curtis Island" (T2-57). Mr Keogh said that he could not recall when Ms McKenzie presented for work at Neil Street but that she advised him "that she was working for EnerMech, and it was to deal with Curtis Island stuff" (T2-36). Ms McKenzie did not give evidence and it not known when she commenced work at Neil Street.
The appellant said that he spoke to Ms McKenzie about the chemical deliveries and that she informed him that the chemicals were in transit and that they would be stored at the Neil Street depot for three to four days before being transported to the Curtis Island LNG project. However, the appellant said that when the chemicals had not been moved one and half to two weeks later, he again spoke to Ms McKenzie. It was his evidence that she responded (T1-12) by saying that "the LNG project weren’t prepared to take the chemicals on at this stage and we were to store these chemicals at our depot."
The appellant said that after speaking to Sarah McKenzie, he raised the chemicals with the Area Manager, Glenn Keogh. He said that he told Mr Keogh that he was "very concerned at the location of the chemicals and as to how long they were going to be on our site". It was the appellant's evidence (T1-19) that chemicals included a hydrate solution, hydrochloric acid, and numerous acidic materials.
The effect of Mr Keogh's evidence was that he and the appellant conducted an internet search to establish the properties of the stored chemicals and to gain some understanding of safe storage practices. He said that the appellant explained to him the danger of the chemicals being stored together and not being correctly bunded.
Following this, Mr Keogh raised the issue with Jason Weeks, the operations manager for Enermech and his direct report. Mr Weeks told him that the chemicals delivered to Neil Street were in transit and were only going to be stored at the depot for a couple of days. In these circumstances, Mr Weeks said that the chemicals did not need to be bunded.
A diary entry made by Mr Keogh on 5 December 2013 (Exhibit 24) confirmed the content of the discussion. The diary entry recorded Mr Weeks saying that "chemicals only there for a couple of days so no need to set up permanent storage as they are in transit. No legal requirements."
It was the appellant's evidence that he had also raised the issue with Jason Weeks (T1-13):
"Okay. And what was the conversation? What did you say to Jason?‑‑‑I expressed my concerns regarding the chemicals being at our depot and they were not stored correctly and there was unskilled personnel within the site as well and there was an overall – it didn’t comply with the Australian standards.
And what was the response in relation to that conversation with Jason Weeks?‑‑‑Jason Weeks instructed me that the chemicals were not to have anything to do with me and I was to concentrate on my prime objective, which was a list of contacts."
Mr Keogh said that after he spoke to Mr Weeks he spoke again to the appellant before placing a call to Mr Niall Conlon. A diary entry made by Mr Keogh on 6 December 2013 stated that when he raised the chemical issue with Mr Niall Conlon, he was told that "Carl is over reacting to chemicals and has nothing to do with him". Mr Keogh's evidence in the proceedings about the exchanges is as follows (T2-24):
"Okay. And so after speaking with – with Jason, what did you do then?‑‑‑I went back and talked to Carl. And told him what I was told. And Carl’s then advised me that that’s incorrect. They’re a danger because they have to be bunded properly. In transit, I’m not – I had nothing to do with it. Which I took on board. I then rang Niall Conlon, and talked to him about it. And Niall’s comment was that it was an over-reaction – Carl was over reacting with the chemicals, and we’re to have nothing to do with the chemicals. The chemicals had nothing to do with us. We were hydroblasting."
Mr Keogh also said that during his conversation with Mr Niall Conlon he was told that the chemical issue was being addressed and that Enermech would be "sending a manager to sort it out".
Mr Niall Conlon acknowledged that he had been copied into particular emails that Mr Searle had authored and that he responded by checking with Messrs Weeks, Keogh and Hanna to ensure that Enermech had the right storage regime in place for the goods that were held at the Neil Street depot. Mr Conlon denied telling Mr Keogh that the appellant had nothing to do with the chemicals, but agreed that he regarded that appellant's position on chemicals to amount to an over-reaction (T3-13):
" … well, I did say that I thought that Mr Searle was overreacting, simply, but it was from a lack of understanding on his part, rather than anything else. So we – we were – we had done the safety assessment on the storage of the chemicals, we were comfortable with that. We explained that to Mr Searle. And I’m – for – for whatever reason he – he didn’t understand it or wasn’t happy with it."
It was Mr Hanna's evidence that the Neil Street depot was a transit facility for chemicals, not a permanent storage facility (T2-74) and that chemicals in transit do not have to be bunded. The effect of Mr Hanna's evidence was that all chemicals that transited through Neil Street were stored there "for as many days or weeks that it takes to get them onto a, you know, customer site for use". While he defined the transit window, in terms of compliance, as three days and implied that this was the practice, he accepted that chemicals may have been stored at Neil Street for longer periods and up to three weeks.
Mr Niall Conlon's evidence about bunding was that (T3-16) once Enermech realised that there would be a requirement for chemicals to be stored at Neil Street on a longer term basis, a number of special storage containers were purchased.
The appellant had raised the safety issue with the head of the human resources department, Barbara Vanthoff, in a telephone call made on 4 December 2013. Evidence of this communication took the form of an email dated 5 December 2013 (Exhibit 5) in which the appellant summarised issues canvassed during the phone call made on 4 December 2013. The list included an entry about "Safety issues revolving around chemicals on site and information beforehand regarding requirements from site – Gladstone". The concern was amplified in a closing paragraph of the email which read as follows:
"There are also several other important issues regarding the safety aspect of chemicals and products stored out at our depot. Documentation, including photographs, have been recorded for further discussion and a few points OHS standards have been ignored. Several compliance standards have been enforced recently regarding PPE and storage, but still borderline compliance as far as I’m concerned."
The appellant said that he had also raised his safety concerns on three or four occasions with Tiffany Vann, an officer in the human resources department. He said that he told Ms Vann that he had "major concerns as to the chemicals and the safety of the employees at the time and my concern for future employment within the company" (T1-17). He also said that he advocated for a site inspection (T1-14):
"Okay. And so the first conversation with Tiffany Vann, what did you say to her?‑‑‑I highlighted my concerns with the chemicals being stored at our depot. I explained it wasn’t a storage facility and wanted to know through herself how I could try to get someone to come and have an inspection or try and sort this matter out.
And what happened after your conversation with Tiffany Vann?‑‑‑Tiffany advised me that there was going to be someone that would be sent down to have a look at the chemicals and to see what could be done with them."
Corroboration of the appellant's position was provided by a text exchange between himself and Ms Vann on 6 December 2013 (Exhibit 8). In the exchange Ms Vann responded to the appellant's concerns about safety issues and job security:
" Carl, there is no confusion or compromise when it comes to the safety of our employees. There has evidently been little or no integration during the takeover, this will be managed immediately. I have raised your concern to our Operations Manager who will send a Coordinator to Gladstone on Monday to assess and act on the issues we have at hand. Please be informed that your anonymity has been maintained. I have not released any names as promised. We are a fair company with a global reputation and I will not put the company at risk so I thank you for your feedback today. Please don't feel like you have done anything wrong or think that your job is at risk. Relax and unwind this weekend. Tiffany
19:11, 6 Dec 2013"
The appellant believed that his involvement in the chemicals issue may have been placing his job in jeopardy particular given his continuing interest in the matter despite the instruction that he had given by Jason Weeks that he had no responsibility for chemicals.
Any concerns that the appellant had about job security were exacerbated when Mr Keogh told him around the middle of December 2013 that he should consider looking for different employment. It was the effect of Mr Keogh's evidence that he informed the appellant that his job might be in jeopardy. He said that in a face to face meeting with Mr Conlon around the middle of December 2013, Mr Conlon told him that "there were going to be changes" and that either himself or the appellant had to go because of the "us and them mentality". Mr Conlon then intimated that the appellant would be the one to go. Mr Keogh relayed the information to the appellant in the following terms (T2-35):
"And – and did you tell Carl about that conversation?‑‑‑I didn’t tell Carl that he was going to be retrenched. I more hinted in general conversation with Carl – was advising with the changes with management and all that – it might be more advisable if he did look around for other work.
And what was Carl’s reaction to that?‑‑‑Carl was a bit stunned and shocked at the time. Because he actually asked me “Am I losing my job?”. And I said “To my knowledge, no”. Because to me, it was told as confidential."
The appellant's insecurity led him to email Niall Conlon when he returned from leave on 6 January 2014 and ask him whether he "still had a job" (Exhibit 12). In his evidence however, Niall Conlon denied that he told Mr Keogh that the appellant's job was in jeopardy, said that he did not know why the appellant had raised the matter in his email, and said that he informed the appellant that his job was not at risk.
Email exchanges in the evidence as Exhibit 7 and Exhibit 9 reveal that the appellant had also drawn his concerns about chemical storage to the attention of the Enermech Chemicals Manager, Vaughan Hanna.
In an email sent at 9.59am on 6 December 2013 (Exhibit 7) the appellant informed Mr Hanna, Mr Weeks and Mr Keogh that chemicals were still stored at the depot and that because "currently chemicals are stored in a non-bunded area, a decision on movement would need to be made as soon as possible. The appellant intimated that the failure to remove the chemicals was due to an unavailability of drivers, or appropriately licensed and accredited drivers. An issue of significance canvassed in the email related to the requirement for drivers engaged to transport the chemicals to the QAL site being appropriately licensed and to have completed the QAL induction.
Mr Keogh responded to the email at 11.38 am on the same day (Exhibit 11) and copied his response to Mr Hanna, Mr Weeks and Mr Conlon. Mr Keogh's response is set out below:
"The correct handling/transporting and all legalities for chemicals will not be sitting with me as the Gladstone area Hydroblasting manager.
Whoever orders/organises this stuff and requires it for their line of work have a legal obligation to follow correct legal procedures.
I will help out anyway I can but no one in my section of Enermech/Vicon has DG licence or appropriate PPE to handle
This email probably sounds harsh and its not intended to offend, I am just advising I am not going to be the one liable if something goes wrong as this is out of my field of expertise, I just seem to be the one left to sort out this mess when it all turns up here without no communication of what's coming, how it is to be handled, do we have experienced people to handle it legally, etc etc etc "
Mr Keogh' asserted that his responsibilities were confined to high pressure water blasting operations and it was not necessary for him, in his line of work, to have any particular knowledge of chemicals. His evidence about Exhibit 11 is recorded at T2-32:
"Okay. And can you give an idea to the Commission – I mean, the words are there, they speak for themselves, but can you further elaborate on that particular email. Is there anything else you wish to add?‑‑‑The only thing I wish to add is this: the reason I – the main reason I sent this email is me as Gladstone area manager – operations manager – I felt I had a – I have a duty of care with my employees, and I had no help whatsoever sorting out these chemicals when I – when I went up the hierarchy of the trade. And I just put the email out there. I said with my duty of care is that I will not be taking any responsibilities for anything that goes wrong with these chemicals turning up I know nothing about – don’t know how much is coming, when it’s coming. And that was just me, basically – I don’t want to be the scapegoat when something goes wrong."
Mr Hanna responded to the appellant's email at 12.33pm on 6 December 2013 (Exhibit 9) in which he canvassed options to facilitate the removal of dangerous goods stored at the depot.
The effect of Mr Hanna's evidence was that a mix of dangerous goods and non-hazardous chemicals could have been stored at the Neil Street depot, and that the goods included:
(i)Non-hazardous chemicals - citric acid, korantan, various surfactants which are much like dishwashing detergents;
(ii)Dangerous goods products - class 8 corrosives including hydrochloric acid, caustic soda, ammonia, and MW40; Sodium nitrite – an oxidiser (stored in 25 kg bags); sodium metasilicate pentahydrate.
Mr Hanna said that there was no risk, or a very low risk associated with the storage of chemicals at Neil Street. He said that the chemicals arrived and remained in a packaged or contained state and were not opened or tampered with while in transit. Mr Niall Conlon said that a critical element in the safe storage of chemicals was the separation of acids and alkalis to mitigate against the possibility of explosion. Exhibit 27 disclosed that alkali's used by Enermech included sodium hydroxide solution (caustic soda), ammonia solution, and sodium metasilicate. Acids included nitric acid, hydrochloric acid and ammonium bifluoride.
In his evidence in the proceedings, Mr Hanna expressed the view that the matters complained about by Mr Keogh and the appellant could be characterised as minor indiscretions which should have been resolved directly by Mr Keogh or the appellant (T2-84):
"Most of the minor indiscretions that have been brought up in this case could’ve been resolved quickly and easily by anyone at that facility. I think, at that time, people had credit cards, you know, for things like signage and bunding and it could have been dealt with quite quickly and easily.
Would you expect them to be – those sort of minor things, to be dealt with by the occupational health and safety officer?‑‑‑Yes.
And is it your understanding Mr Searle was that person?‑‑‑Yes."
Other than matters that should have been addressed by the appellant, it was the tenor of Mr Hanna's evidence that while that the corrective action taken after the audit may not have matched best practice, it was adequate in all the circumstances considering the nature of the chemicals and their in transit status.
Mr Tabone's Audit
The person despatched by Enermech to conduct the inspection of the Neil Street depot was Julian Tabone, an operations co-ordinator. Mr Tabone conducted the inspection on 9 December 2013 and completed an assessment based on a check list referred to as "Management Health, Safety & Environment Tour" (Exhibit 13).
The check list incorporated twelve questions which were relevant to chemical storage. These questions and the answer recorded by Mr Tabone are set out below:
Are there sterile eyewash bottles in place and accessible? No
Are fire extinguishers within test dates? No
Are staff wearing the correct PPE? No
Is PPE stored correctly? Yes
Are chemicals stored correctly? No
Are there safety data sheets? No
Are all containers clearly marked with contents and warnings? Yes
Are all chemicals/oil containers placed on drip trays or in a bunded area? No
Are any stacked items stacked safely? Yes
Is the dangerous goods store locked to prevent unauthorised access? No
Is all relevant signage in place regarding storage of chemicals and/or gas? No
Are there adequate spill kits/with acceptable stocks? No
Mr Tabone included four notes in his audit document all of which were relevant to the storage of chemicals:
1.Hydrofluoric Acid in temp bunding outside and covered with a tarp. The bunding is full of liquid (possibly rain water) – this needs to be Ph tested and cleaned out.
2.Temp Bunding inside shed had one side of bunding open. This was rectified before leaving site.
3.All necessary HAZCHEM signs to be put up on fence asap.
4.Monique to advise what Chemicals are onsite and arrange with Vaughan/Vicki about getting MSDS sheets.
Mr Tabone's report was tendered with a number of email exchanges that followed the conduct of his audit. The Enermech management response to Mr Tabone's report is set out in an email dated 10 December 2013 which appeared to be sent from Mr Weeks to Mike Wilson. This email is attached to, and forms part of, Exhibit 13.
The email trail included in Exhibit 13 establishes that Enermech had moved early on 10 December 2013 to address the chemical storage issue and a number of other issues which emerged from Mr Tabone's report. The email trail reveals that Mr Weeks discussed the inspection with Mr Tabone either after the inspection was completed on 9 December 2013 or early in the morning on 10 December 2013. In an email sent at 8.04 am, after noting discussions with Mr Tabone, Mr Weeks identified eleven activities for completion.
The exchange included an email from Jason Weeks to an unnamed recipient which listed a number of items requiring attention including the following matters which are expressed in abbreviated form:
-Removal of ammonia drums per the quote already received by Monique;
-Dangerous goods containers will be hired for temporary storage in lieu of the use of bunds;
-Obtain a quote for an oil bund to cover the used oils section at the front;
-Display Hazchem complete sign set;
Mr Tabone's evidence in the proceedings was not particularly helpful. While he was charged with the responsibility of conducting the audit, and notwithstanding that the audit occurred because of complaints made by the appellant about chemical storage, Mr Tabone maintained that he had very limited knowledge of chemicals and he could not say definitely that the chemicals stored at Neil Street were either hazardous or dangerous. He said that he deferred to Mr Hanna in this regard. The fourth note in his audit document may provide confirmation of Mr Tabone’s predicament. In this note, he says that Monique Searle had been asked “to advise what chemicals are on site” and to make arrangements for MSDS sheets. The implication is that Mr Tabone did not know himself which chemicals were stored at Neil Street. The other Enermech manager involved in the matter, Mr Weeks, did not give evidence.
Mr Hanna said that he did not commission the audit conducted by Mr Tabone. He said that the report was commissioned by Mr Duncan. Mr Hanna's evidence was that he did not speak to either Mr Tabone or Mr Duncan about the matter, but that he was made aware of Mr Tabone's report.
While he may not have been involved in the audit at the time that it was conducted and had not apparently expressed a view at the time about the audit findings, Mr Hanna was asked to retrospectively evaluate some of the audit findings in his evidence. He was also asked to give an opinion about the method of storage of certain chemicals shown in photographs taken by the appellant in November 2013.
Mr Hanna evidence about the photographs and audit report tended to be of a reflective and theoretical character. He was not involved in decision making associated with the audit and he did not recall with precision what had actually happened at the time. There is also no evidence that Mr Hanna challenged Mr Tabone about particular audit findings when they were given to him on 10 December 2013.
Mr Hanna contested the finding that the dangerous goods store was not locked by saying that in his view the store did not need to be locked provided that access to the facility was controlled. In terms of a failure to maintain correct signage Mr Hanna suggested that there was no impediment to the erection of signage, and that the appellant should have done this. Mr Hanna disputed the finding about the failure to provide adequate spill kits. He said that what was in place was more than adequate.
The photographs taken by the appellant showed aqua ammonia drums placed on wood pallets sitting on a tarpaulin or plastic cover, bags of citric acid on pallets, and tanks of sodium hydroxide solution in steel cages. All three chemicals were stored both inside a warehouse and out in the open, at times in direct sunlight. The sodium hydroxide solution stored in the open however was covered by a tarpaulin. Labelling on the chemicals showed that the sodium hydroxide solution and the aqua ammonia solution were class 8 dangerous goods. Mr Hanna said that the sodium hydroxide solution was not explosive nor flammable.
Mr Hanna's contention however that the citric acid was a non-dangerous good was challenged. A material safety data sheet in the evidence as Exhibit 14 classified citric acid as hazardous and stated that the acid should be stored out of direct sunlight.
The effect of Mr Hanna's evidence was that the photographic evidence did not disclose the presence of any risk, and while some improvement could have been made in bunding, what was in place was adequate. On the evidence however, there were other chemicals stored in transit at Neil Street including hydrochloric acid, sodium nitrite, and sodium metasilicate, all of which were classified as hazardous substances or dangerous goods.
There was some contest in the evidence about Mr Hanna's direct connection to Neil Street. The appellant, Monique Searle and Mr Keogh all denied that Mr Hanna was a regular visitor to the site and said that they had only seen him at Neil Street on a couple of occasions. Mr Hanna however said that he visited the Neil Street site at least once a month during 2013 and 2014, and that it was his practice to go directly to the Neil Street facility after his arrival at Gladstone airport to collect his PPE.
There is no objective or contemporaneous evidence about the visitations. Mr Hanna said that he did not produce any reports or keep any records of his visits to Gladstone and there were no emails dealing with the matter. In particular, there is no evidence to the effect that Mr Hanna was at Neil Street for any significant period of time, had inspected chemicals stored at the site during the relevant period, or took specific responsibility for regulatory compliance.
As it transpired, Mr Hanna did not claim that he had any direct involvement in, or supervision of, the storage of chemicals at Neil Street in late November or early December 2013, nor that he had any exclusive responsibility for the site. His evidence was that the Neil Street facility was not strictly under his control and that his "main concern was just making sure the jobs ran smoothly on the client site as opposed to the management of the Neil Street facility" (T2-101).
It was in these circumstances that Mr Weeks evidence may have been of assistance. Not only was he primarily responsible for the operational aspects of the Neil Street depot, he was also the supervisor of Mr Keogh and through Mr Keogh of the appellant.
Mr Hanna's evidence about material safety data sheets was unsatisfactory. The audit report included a finding that safety data sheets were not available for all chemicals. The email sent by Mr Tabone on 10 December 2013 (Exhibit 13) included a statement that he spoke to someone and that person "is sending a copy of the MSDS's to Monique to be able to print out and keep in a file in the office". Despite this evidence, and the evidence of the appellant, Mr Keogh, and Monique Searle, Mr Hanna maintained that material safety data sheets were readily accessible at Neil Street at the relevant time (T2-72):
"And they were within the – where were they kept?‑‑‑They should be kept in a box accessible to all staff and emergency staff, you know, should they attend the facility for an incident. I – I mean, this is a long time ago – I understand from the audit which I believe everyone has seen that – that – well, on some of the dates in question a physical copy of them may not have been present at the office, but it is, without doubt, there – there would be electronic copies with staff in and around the facility, and, if not, it’s – it’s an email away."
It was Mr Keogh's evidence that material safety data sheets were not held at the Neil Street depot either in hard copy format or in an electronic form. He also said that hazardous goods registers were not held at the depot.
Mr Niall Conlon's evidence was that after Mr Tabone's report had been received, he approved the purchase of some fire extinguishers and also storage containers to facilitate the additional segregation of chemicals. While this may have been case, on the evidence overall it can be concluded that this response was either only partially implemented, or in other respects not implemented at all for some time. On Mr Roberts evidence, the specialist containers had not been ordered, or were not in place, until some time in February or March 2014, and other evidence established that some elements of the fire extinguisher project remained incomplete in April 2014.
It was the appellant's evidence that he was not provided with any information about the results of Mr Tabone's site inspection. It was also his recollection that no prior risk assessment had been conducted of the site. It was his view that "we weren't regarded as a chemical storage facility" and that he did not think that the site would be used for the storage of chemicals. Consistent with this the appellant said that a hazardous substances register was not held on site.
The appellant said that, on his own initiative, he had arranged for the installation of a safety shower about two to three weeks after the chemicals had arrived at the depot. He also said that there was an attempt at bunding around the same time and that "they tried to create a bunded area for the chemicals inside our depot" by laying plastic and placing timber to encapsulate (T1-19).
Fire Extinguishers
It was the appellant's evidence that in late December 2013 or early January 2014 he became aware that some of the fire extinguishers were out of date. As a consequence he requested Monique Searle "to do an audit on all the truck fire extinguishers as well as our depot and give me a list of firefighting equipment" (T1-20).
It was Mr Keogh's evidence at T2-33 that both the appellant and Monique Searle brought to his attention a problem with fire extinguishers being out of date or not in service. He said that QAL conducted audits on Enermech vehicles and trucks and that it was necessary to ensure that fire protection equipment on the vehicles was current.
Monique Searle said (T2-54) that towards the end of November 2013 she was asked by Mr Keogh to, in effect, complete a compliance audit on all fire extinguishers. Following the request she inspected the fire extinguishers, checked whether they were still in service, and noted whether they were time compliant. Subsequently she made contact with the supplier, Chubb, and obtained price information or quotes relating to the replacement or refurbishment of fire extinguishers. Mr Niall Conlon's evidence was that after Mr Tabone's report had been received, he approved the purchase of some fire extinguishers and asked that others be re-certified. However the evidence associated with Barry Conlon's involvement suggested that, these outcome were not implemented in full on a timely basis. Further, Mr Roberts agreed that full compliance in respect to fire extinguishers had not been effected before 15 April 2014.
An email trail in the evidence as Exhibit 18 broadly supports the evidence led by the appellant. The first email dated 3 December 2013 discloses that Monique Seale received from a supplier, Chubb, a schedule of rates relating to fire extinguishers including recharge rates and service charge rates. She subsequently passed on this information to Barry Conlon on 11 December 2013 and asked him whether he wanted the information in the form of a quote. Barry Conlon told her on 12 December 2013 that he wanted a quote from Chubb. On 18 December 2013, the appellant tried to expedite the matter. He emailed Barry Conlon and asked him to approve the quotation as soon as possible because of a concern that the company may be found to be in breach of QAL standards. A follow-up email was sent on 19 December 2013 to which Barry Conlon responded by asking whether it was possible to re-certify the extinguishers. Later that day Barry Conlon asked the appellant to inform him of the number of extinguishers currently held, the number of additional extinguishers required and whether Chubb could re-certify existing extinguishers.
In response to Barry Conlon's request for information, Monique Seale informed him that only one fire extinguisher was compliant and in a serviceable condition. This extinguisher was held at the QAL office. She said that eight other extinguishers were out of date and empty, however the email did not disclose where these extinguishers were located. She also indicated that twenty additional extinguishers were required for placement in company vehicles including trucks. In her evidence in the proceedings (T2-55), Monique Searle said that she was informed by Chubb that either some or all of the extinguishers could not be recertified because the due dates had expired. She said that the replacement cost was a lot more expensive than the recertification cost. The effect of her evidence was that Barry Conlon had a clear preference for re-certification.
It appeared with the Christmas break intervening, nothing further transpired until early January 2014 when the appellant emailed Mike Wilson on 7 January 2013 and asked him whether fire extinguishers had been included in a container received from Gove. The effect of the appellant's evidence in this regard was that Barry Conlon had decided, rather than order the equipment from Chubb, to ascertain whether extinguishers were available to be transferred from other sites, including Gove (T1-20):
"And how did it make you feel in respect to those fire extinguishers being not ‑ ‑ ‑?‑‑‑I think it was more because a few weeks had gone by where nothing was answered and then some emails came through regarding firefighting equipment from other depots around Australia. One was in Gove, Australia and one was in Perth. And they wanted to try and utilise all that firefighting equipment taken from that site and bring it on to our site.
Okay. Why wasn’t that suitable?‑‑‑Because most of the equipment was not only out of date, but they had to be replaced with brand new equipment. You can’t just refill a firefighting container, it has to be a new material. So we had to replace all with new."
While it can be accepted that the appellant identified the instances of non-compliance, and reported the issues to head office, there was no agreement between the parties as to what the appellant's responsibilities were beyond that. Both Mr Roberts and Mr Niall Conlon said that the appellant should have used a company credit card to purchase any extinguishers or take what other measures were necessary. Mr Niall Conlon said that the appellant “had the – the approval or the authority to do that himself anyway, but in the case it hadn’t been done I – I instructed it to be done”.
However it was Mr Keogh's evidence (T2-34) that when Monique Seale sought quotes for the replacement or servicing of fire extinguishers, the quotes were required to be sent to a Mr Barry Conlon. It was Mr Keogh's evidence that Mr Barry Conlon refused to authorise the expenditure.
It seems to me that the exchange of emails included in Exhibit 18 contradicts the respondent’s evidence that the appellant was responsible for corrective action. If the appellant had the authority to resolve the problem with the fire extinguishers, the email exchanges must surely have included an instruction from Barry Conlon to the effect that the appellant should get on with it, and fix the problem. To the contrary, the email trail clearly indicates that Barry Conlon would be making the decisions, that Barry Conlon was prevaricating over the purchasing decisions, and that he was reluctant to commit to the expenditure that would have resulted from the acceptance of the Chubb quote.
Responsibility for Health and Safety
A matter in contention in the proceedings related to the scope of the appellant's job, and whether it included responsibility for safety and regulatory compliance associated with the storage of chemicals at Neil Street. The respondent submitted that there was no doubt that the appellant was the occupational health and safety officer for the Neil Street site and that "concerns raised by him in relation to storage of chemicals and fire extinguishers should have been dealt with by him". It followed in the respondent's view that any evaluation of the nature or extent of Enermech's response to safety issues needed to take this matter into account.
The appellant's view on the matter was more complex. He accepted that he held health and safety qualifications and that he was responsible for a range of compliance measures on the QAL site, including matters pertaining to health and safety, but that he did not have any responsibility for chemicals stored at the Neil Street site.
The respondent relied on the oral evidence adduced in the proceedings, on parts of the report prepared by Dr Foxcroft, and on an email sent by Mr Keogh (Exhibit 11) to the appellant on 6 December 2013 dealing with chemical storage. In the email, Mr Keogh said "you being O.H.S. please liaise with Vaughan on what is required to get this sorted within legal requirements/obligations".
Mr Conlon was very forthright in insisting that much of what the appellant complained about fell within his own responsibilities and should have been addressed by him (T3-11):
"Now, what was, in the regard to safety, what was Mr Searle’s duties or responsibilities with respect to safety on the QAL, on the Neil Street site, for starters?‑‑‑He was – he – he was – his role – well, he was responsible for safety at both the base and any of the sites we were working on in – in – in the Gladstone area.
And by virtue of that position, did he have any authority to maintain that safety provisions were complied with?‑‑‑He did. He had the ability to purchase things if they needed to be purchased. He had a purchasing limit. And he had the ability to – to stop work, or stop – stop operations. All of our employees are empowered with that. If they see something unsafe they’re entitled to stop the – stop the work.
Was there a limit on what he could spend on purchases?‑‑‑There was. From memory it probably would’ve been somewhere between 2,500 and $5,000."
When Mr Roberts was asked what the appellant's job designation was, he responded in unequivocal terms that it was Health and Safety Officer. Mr Hanna also contributed to the discussion. He had been employed by Vicon for approximately a year before it was acquired by Enermech. Mr Hanna said that he understood that the appellant was the QHSC manager for Vicon/ Enermech (T2-68).
Dr Foxcroft's report included a statement attributed to the appellant after he joined Vicon in 2013. The appellant said that "he had progressed to working in occupational health and safety and this caused extra stress when management were not responsive to occupational health and safety risks, leaving him vulnerable to the consequences".
The appellant said in effect that he held accreditation as a workplace health and safety representative and that this accreditation effected compliance with the Workplace Health and Safety Act. He said that he held a dangerous goods licence and that he had experience in dealing with chemicals accumulated from involvement with a number of sites in Gladstone. He was also familiar with dangerous goods and hazardous chemicals arising from his employment as a fleet manager with Central Queensland Petroleum where it was his responsibility to make or facilitate applications for dangerous goods licences. Notwithstanding this background, he said that his limitations must be recognised (T1-27):
"Okay. You didn’t receive any special training?‑‑‑I was probably the best qualified for an opinion due to the fact I had my dangerous goods, and I also had a good understanding of the chemicals on certain sites, but I still was far from being qualified to give my opinion and to store them in a specific way – in a specific manner."
It was the appellant's evidence that the handling and movement of chemicals in and out of the Neil Street depot were not undertaken by employees under his control, but were typically undertaken by contractors responsible for the delivery and despatch of goods from the depot. In terms of chemical storage, he maintained that he had been told by both Mr Weeks and Mr Conlon that he had no responsibility for the "chemical side of the business" (T1-75).
The appellant said that his compliance duties at the QAL site included responsibility for ensuring that all Enermech staff were inducted and trained to QAL standards. The appellant also said that he was hired because of his training knowledge and "to help authorise changes within the workplace as far as our own teams in high pressure water blasting" (T1-77). He said that he had been working in a technical training capacity for the previous 11 years. Mr Niall Conlon said that the appellant had previously conducted high pressure water jetting training for Vicon at Gove.
An Industrial Services Team organisation chart (Exhibit 21) supported the appellant's contention that his activities were focussed on the QAL contract, and that safety was an ancillary function. The chart showed the appellant's classification as "QAL Assistant Manager and OHS Manager". Mr Keogh was described on the same chart as QAL Manager.
Schedule 1 to the employment agreement entered into between Vicon Services and the appellant (Exhibit 1) listed the appellant's position title as "Manager". Clause 3.4 of the agreement stated that the appellant's duties and responsibilities were set out in "Schedule 2 – Job Description". Schedule 2 listed twelve areas of work or responsibility. The first listed job responsibility was to "assist the Gladstone Area Manager in overseeing all aspects of Vicon's operations as service provider of high pressure water jetting and heat exchanger overhauls in the Gladstone area". In terms of safety, the job description made explicit references in three areas of responsibility:
§"Actively participate in all aspects of Safety for the Region per the Key Performance indicators outlined in Schedule 1". Relevantly however no safety indicators were included in Schedule 1;
§"Ensure Vicon's best practices and internal policies are being adhered to in relation to safety, fatigue, cleaning equipment, support equipment, Personal Protective Equipment, inventory control, client relations, environmental policy";
§"Perform any administrative tasks as required including on site IT system, work timesheets, employee rosters, liaison with client for payment information, vehicle check sheets, equipment inventory lists - in conjunction with the Site Administrator and Site Safety & Training Officer".
Mr Keogh's evidence about the appellant's job was that the appellant relieved him during periods of leave and that "Carl’s position, as far as I was told, was to help me out on jobs I need him to help out on, the Hydroblasting at QAL. It was for service and – and seeking new clients. And if I needed him on project management to oversee a big job, it was for project management" (T2-41).
It was Monique Searle's evidence that the appellant gave her some training on safety issues. Her understanding was that the appellant was a qualified safety officer and a qualified trainer. She said that the appellant would train people in areas such as fire safety and use of equipment.
An email exchange between the appellant and Niall Conlon dated 7 November 2013 (Exhibit 20) provides some insight into the nature of the duties performed by the appellant. In broad terms, the email discloses that the appellant performed a mix of operational, compliance and safety functions and that the majority of activities related to the QAL site. He said that he had visited the QAL site on four or five occasions across the day.
I prefer the appellant’s characterisation of the role. The contemporaneous evidence is more consistent with his version of events. While he reported the existence of problems and pressed for their timely resolution, there was no contemporaneous Enermech evidence that supported a conclusion that Enermech expected the appellant to take responsibility for implementing corrective action, that the appellant was authorised to spend Enermech funds, or had the capacity to act unilaterally to resolve safety issues.
Relocation from Neil Street
As I followed the evidence of Mr Keogh, a determination had been made by Enermech to relocate himself, the appellant and Monique Searle to office facilities located on the QAL site. He said that Enermech was "in the process of setting up a site office" at QAL. While there was no evidence on the subject, I proceed on the basis that, in the ordinary course of events, the move was intended to take place during December 2013 or January 2014. It was in this context that Mr Keogh elected to effect the move sooner rather than later because of a concern about the chemicals stored a Neil Street. A diary entry made by Mr Keogh on 9 December 2013 relevantly stated:
"Over the Chemical issues with storage & risk. Now moving all staff to site office ASAP as been told by Niall that Vaugh[sic] is in charge of chemicals & not me or Carl."
Mr Keogh said that the move occurred on or about the 11th, 12th, or 13th of December 2013. On this evidence, it is likely that the appellant would have been operating out of the QAL office on and from Monday 16 December 2013. An email dated Thursday 19 December 2013 (Exhibit 18) disclosed that the appellant would be absent on leave for two weeks. He subsequently resumed work on Monday 6 January 2014.
Only limited evidence was adduced about whether the appellant's removal from Neil Street might have been expected to reduce the adverse impact of stressors. Dr Foxcroft opined at page 14 of his report that the appellant's depression "would seem almost certainly to have been present by early February 2014", while the appellant’s version of events was not challenged. He maintained in his evidence that the presence of chemicals at 8 Neil Street continued to disturb him notwithstanding his relocation to the QAL site. He said he rang Jason Weeks on two or three occasions to ascertain what had been done to resolve his concerns. He also said in effect that he would return to the depot from time to time, and that it was his observation that nothing had changed in terms of the storage of chemicals (T1-35):
"COMMISSIONER: When you say you did something further with the chemicals, what do you mean, because you’ve left – you’re now at QAL in January?‑‑‑This is January the 6th, we were at QAL at that time. The – I kept ringing to find out – with Jason Weeks what the situation was. I spoke to him maybe three times in all.
This is between the middle of December and ‑ ‑ ‑?‑‑‑Middle of December and early January.
‑ ‑ ‑ 6th of January. So you continued to make inquiries?‑‑‑I continued to because the situation hadn’t changed. I’d come back to the yard and seen the yard, there was no changes there, and right throughout my main concern was always the employees there at the time dealing with them, and being inexperienced with them, so I was told in – very definitely by Jason Weeks that my responsibility was to have nothing to do with the chemicals in any way."
Monique Searle had resigned from employment with Enermech in mid-January 2014 and Mr Keogh had left Enermech's employment some time in February 2014. Their evidence did not include comment on how the safety issues evolved or progressed in either January or February 2014. Mr Keogh confirmed that the chemicals were still at the Neil Street depot when he and the others relocated to the QAL site in mid-December 2013. Mr Keogh said that he did not return to Neil Street between mid-December 2013 and the date of his resignation in February 2014.
[100]Mr Roberts commenced work for Enermech at the Neil Street facility on 6 January 2014. He said in effect that during January and February 2014 he would have had face to face interactions with Mr Searle about two to three times a week. It was relevant that for much of this period the appellant continued to report directly to Mr Keogh, while Mr Keogh reported to Mr Roberts. Mr Roberts said that he did not recall the appellant complaining directly to him about the storage of chemicals, but acknowledged the possibility that the appellant may have raised the fire extinguisher issues with him (T1-45):
"And with regard to the fire extinguishers, did he raise with you that there was a situation that needed to be corrected?‑‑‑I don’t recall it ever being an email and we – we may have spoken verbally, it may have come up in a meeting or something but I don’t recall. No."
[101]Mr Roberts said that issues relating to fire extinguishers were drawn to his attention when he commenced work at Neil Street. His understanding was that a number of fire extinguishers were out of date and that an action plan was put in place to arrange the purchase of replacement extinguishers or to ensure that existing extinguishers were brought up to compliance. Mr Roberts' gave evidence about an email (Exhibit 19) that he had sent to a number of Enermech managers on 15 April 2014. In the email he acknowledged that some issues arising from the audit of fire extinguishers remained unresolved and that "there was still some work to do" in relation to achieving alignment with dangerous goods requirements. Mr Roberts accepted that as at 15 April 2014 work still remained to be done before full compliance was effected.
[102]While Mr Roberts said that he would have been responsible for chemicals stored at the Neil Street depot from 6 January 2014, he said that issues related to chemical storage were not raised with him and that he had not seen the report prepared by Mr Tabone. He said that he relied on Mr Hanna's advice on the subject and that he was satisfied, in terms of regulatory compliance, that Mr Hanna had taken all necessary steps. He said that when he arrived at Neil Street, he believed that chemicals were segregated and fully bunded. He said that he did not make any changes to storage arrangements when he arrived and that he relied on Mr Hanna's advice in terms of compliance with regulations. He said that he "was happy that Vaughan had everything set up the way it should be".
Conclusion
[103]It is not in dispute that the employment was the major significant contributing factor to the appellant's injury. Nor was any significant challenge raised in respect to Dr Foxcroft’s evidence that the relevant management action contributing to the appellant’s injury was management action principally associated with the storage of chemicals and the currency and serviceability of fire extinguishers. The appeals turns on whether this management action was unreasonable or unreasonably taken.
[104]The appellant's case was that the appellant was justified in drawing the attention of management to a series of safety breaches, that the management response to the concerns expressed was inadequate, that management failed to address safety breaches on a timely basis, and that there were significant management failures associated with the decision to use the Neil Street depot as a storage facility for chemicals.
[105]The respondent argued that any breach or instance of non-compliance was relatively minor in nature, that the appellant had misconceived or overstated the level of risk, and that notwithstanding any overstatement, management had responded to concerns raised by the appellant by commissioning an audit of the site and in implementing corrective measures. Finally, the respondent argued that the appellant, as health and safety officer, was responsible for responding to and correcting any health and safety issues at the Neil Street depot. It followed in the respondent's view that if the appellant was responsible for the safe storage of chemicals and the currency and serviceability of fire extinguishers, it would be difficult, or more difficult, to sustain an argument that off-site or head office management responses associated with these issues were unreasonable.
[106]In my view the evidence supports a finding that the appellant performed a range of functions. His primary role was managerial and operational support which included OHS responsibilities, technical training, and QAL compliance activities. I accept that the appellant's testimony in the proceedings more accurately described his role and responsibilities than did the testimony of the respondent's witnesses.
[107]The proposition that the appellant was responsible for the safe storage of chemicals at Neil Street has not been made out on the evidence. Any clear accountability for the chemicals would have meant that the appellant had prior notice of their arrival on site, knew the type of chemical that was being delivered and the safety hazards associated with those chemicals, had a supervisory role over how and where the individual chemicals were stored, and would have been directly briefed or consulted about the outcomes of Mr Tabone’s audit.
[108]In terms of fire extinguishers, the documentary evidence supports a finding that the appellant had very limited autonomy in terms of remedial action, that Barry Conlon exercised full control over expenditure, and that Barry Conlon's decision making processes significantly delayed the implementation of corrective action. While it may have fallen to the appellant to conduct audits and monitor compliance, it was clear on a reading of the relevant emails that he did not have the authority to commit the expenditure necessary to ensure compliance.
[109]While the respondent's case about accountability relied on oral assertions made by witnesses, there was an absence of supporting contemporaneous evidence. It could have been expected that if the respondent's version were correct, email responses would have been available showing that when the appellant complained about safety issues, management responded by reminding him of his accountability and instructing him to resolve the issues.
[110]A particular opportunity for senior management to clarify responsibility for the movement and storage of chemicals at 8 Neil Street was clearly available when Mr Keogh sent his email on 6 December 2013 (Exhibit 11) completely disavowing any responsibility for the chemicals. The failure of management to spell out clearly the chain of responsibility was telling. Consistent with this reasoning, I find that it was more likely than not that the appellant and Mr Keogh had been informed by either Mr Weekes or Mr Niall Conlon, or both, that they had no responsibility for the chemicals.
[111]I prefer the evidence of the appellant, Mr Keogh and Monique Searle that the Neil Street depot had not been used in any significant way for the storage of chemicals before November 2013. I accept their evidence that whatever the original intention was, some chemicals were stored at the Neil Street depot for at least three weeks. Consequently any defence based on a diminished regulatory requirement for chemicals held in transit was not available.
[112]I don’t accept the evidence of Mr Hanna that he gave the appellant and/or Mr Keogh prior notice of despatch of chemical deliveries to Neil Street. While there is evidence that Mr Ross Taylor and Ms McKenzie were informed of the despatch of chemicals at least in one instance, there is no documentary evidence disclosing that either the appellant or Mr Keogh were informed. Further, the oral evidence of the appellant, Monique Searle and Mr Keogh was unambiguous in this area and I prefer their evidence to the extent that they were not informed in advance that chemicals were to be delivered to Neil Street.
[113]The position of management as at the end of November or early December 2013 appeared to be that chemicals stored at Neil Street were only in transit, they were separated and safely stored, and that there was no significant safety risk. In this context the appellant's conduct was not considered proportionate and was regarded as an over-reaction.
[114]That such a characterisation of the appellant's concerns was inaccurate was demonstrated by the audit findings resulting from Mr Tabone's audit. The audit tool (Exhibit 13) incorporated fifty-nine questions, most of which were not relevant to chemical storage. Nine out of the twelve relevant questions were given a negative response indicating some shortfall in compliance either with Enermech standards or with health and safety regulations. Further, the four audit notes drew attention to areas for improvement related to chemical or dangerous goods storage and included an acknowledgement that site personnel were not aware of the type of chemical stored and did not have access to material safety data sheets.
[115]In circumstances where chemicals had not previously been stored at Neil Street, no prior warning had been given about the arrival of the chemicals, no information was directly given to Mr Keogh or the appellant about the type and nature of chemicals being stored, and responsibility for the chemicals was not apportioned, it cannot reasonably be concluded that the appellant's apprehension was misconceived. The appellant held managerial responsibility, he was an accredited health and safety representative, and he a held a dangerous goods licence. He was correct in canvassing his concerns with his direct report, and in pressing for a timely resolution of the issues.
[116]The respondent's defence was not assisted by the failure of its witnesses to deliver a clear and coherent account about the relevant facts and circumstances. This deficiency was partly attributable to dynamics associated with the integration of two companies, the overlapping areas of responsibilities of witnesses, the failure of Mr Weeks to give evidence, and the requirement to give evidence about events occurring over three years earlier.
[117]While Mr Hanna and Mr Niall Conlon said that they regularly visited Neil Street, their evidence did not extend to any specific assertion that they had inspected the chemicals and knew first hand how they were stored at the relevant time. Further Mr Hanna was not involved in the audit process and indicated that operational responsibility for Neil Street was held by Mr Weeks. Given that Mr Weeks did not give evidence in the proceedings, it was only Mr Tabone who could say with conviction that he inspected the site at the relevant time. However, he deflected responsibility by saying that he had no particular expertise in chemicals, or the regulatory regime, and that he deferred to Mr Hanna on the subject. While Mr Roberts had responsibility for the Neil Street site after 6 January 2014, he said that he relied entirely on Mr Hanna in respect to compliance and the safe storage of chemicals.
Decision
[118]In my view the appellant was justified in raising concerns. This is so irrespective of whether he was the designated safety officer for Neil Street or a manager with responsibility for the site and persons engaged therein. Having raised the concerns the appellant was entitled to a timely and adequate response from relevant management. On a global view of the facts and circumstances of the case, the management response could not be considered to be either timely or adequate. Nor, given the significant safety issues involved, could the management response be characterised as blemished or something less than unreasonable.
[119]While the respondent relied on the conduct of the audit by Mr Tabone as evidence of appropriate management action, the truth was that management was slow in responding to the appellant's concerns and was only motivated to act when the appellant, in effect, circumvented his chain of command and complained to HR. It was this initiative, and Mr Keogh's abandonment of responsibility on 6 December 2013, that caused the audit to be commissioned.
[120]The delay in securing a timely and effective response to safety concerns led the appellant to escalate the matter through HR. I accept that this step would have caused the appellant unnecessary anxiety and distress. The repeated articulation of his concerns and the escalation to HR also caused the appellant to worry about his job security. Reasonable management action would have avoided these consequences by addressing the underlying issue in an adequate and timely manner.
[121]The management planning associated with the use of the Neil Street depot as a chemical storage facility was deficient. Many of the chemicals were classified as hazardous materials or dangerous goods, and the separation of some of the chemicals was a critical measure. The chemicals were stored in substantial quantities, and in some instances were stored on site for a number in weeks under temporary storage arrangements. It was a significant omission to fail to inform local management in advance of the arrival of chemicals, and to ensure that Neil Street personnel had the necessary skill and knowledge to safely handle and safely store the chemicals.
[122]There was an inadequate understanding on management's part of the period of time that chemicals would be stored at Neil Street, too much reliance was placed on an expectation that the chemicals would be stored briefly in transit, and a designation of accountability for the safe storage and movement of the chemicals was overlooked. Confusion over accountability contributed to something less than than full compliance with a range of regulatory and internal policy requirements. This uncertainty contributed to less than effective communications about the status of the chemicals and exacerbated the appellant's anxiety or concern.
[123]It was not reasonable for management to prevaricate to the extent that it did over the replacement of fire extinguishers and to countenance a situation in which extinguishers held at Neil Street, or in particular Enermech vehicles, were not in a serviceable condition or whose certificate of currency had expired. It was not unexpected that the management response associated with fire extinguishers exacerbated the appellant's concern about the management commitment to the maintenance of safety standards.
Orders
[124]The appeal is allowed. The decision of the regulator dated 7 April 2015 is set aside and the appellant's application for compensation deemed to be one for acceptance. The matter of costs is reserved.
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