State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator

[2020] QIRC 97

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

PARTIES:

State of Queensland (Department of Agriculture and Fisheries)
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2018/58

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

30 June 2020

HEARING DATES:

DATES OF WRITTEN SUBMISSIONS:

10 June 2019, 11 June 2019, 12 June 2019, 13 June 2019, 14 June 2019, 24 June 2019 and 9 September 2019

Respondent's written submissions filed on 6 August 2019

Appellant's written submissions filed on 27 August 2019

Respondent's written submissions in reply filed on 3 September 2019

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

1.        The appeal is allowed.

2. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is set aside and another decision is substituted, namely, that Mr Mattley Davis did not suffer an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003.

3.        The Respondent is to pay the Appellant's costs of the appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - psychiatric or psychological injury - whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - perceived conflict of interest - whether action taken to try to move worker to another work unit so as to deal with a conflict of interest was management action - whether the management action taken had a causal connection with the injury - whether the management action taken was reasonable management action taken in a reasonable way - whether worker's psychiatric or psychological injury arose out of the worker's perception of reasonable management action being taken against worker

LEGISLATION:

Acts Interpretation Act 1954, s 14 and s 14D

Public Service Act 2008, s 26, s 133 and s 186

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

CASES:

Allwood vWorkers' Compensation Regulator [2017] QIRC 088

Avis v Workcover Queensland [2000] 67 QIC; (2000) 165 QGIG 788

Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Blackwood v Mana [2014] ICQ 027

Canadian General Electric Company Limited v The Ontario Labour Relations Board [1955] CanLII 162 (ON SC); (1956) OR 437

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197

Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95

Food and Beverage Australia Ltd v Andrews [2017] VSCA 258

Gilmour v Workers' Compensation Regulator [2019] QIRC 022

Haack vWorkers' Compensation Regulator [2017] QIRC 115

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027

Ivey v Workcover Queensland [1999] 65 QIC; (1999) 162 QGIG 392

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Keating v Morris & Ors; Leck v Morris and Ors [2005] QSC 243

Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42

Kuhl v Zurich Financial Services Australia [2010] HCA 11; (2011) 243 CLR 361

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Manly Council v Byrne [2004] NSWCA 123

Misevski v Q-COMP [2009] ICQ 2

MWJ v R [2005] HCA 74; (2005) 222 ALR 436

Parker v Q-COMP [2007] ICQ 31; (2007) 185 QGIG 269

Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481

Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643

Read v Workers' Compensation Regulator [2017] QIRC 072

Sabo v Q-COMP [2010] ICQ 47

Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010

State of New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226

State of Queensland v Q-COMP [2010] ICQ 6

State of Queensland (Queensland Health) v Q‑COMP and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Versace v Braun [2005] QIC 18; (2005) QGIG 315

Waugh vSimon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028

WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93

Wyllie v Q-COMP [2009] ICQ 9; (2009) 190 QGIG 233

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr C J Murdoch QC of Counsel instructed by Crown Law for the Appellant.

Mr P B O'Neill of Counsel directly instructed by the Respondent.

TABLE OF CONTENTS

Background

Matters not in dispute

The issues in dispute

The construction and application of ss 32(5)(a) and (b) of the Act

Section 32(5)(a) of the Act

Section 32(5)(b) of the Act

What is 'management action' within the meaning of s 32(5) of the Act?

The actions of the Department's management referred to by the parties

The State's case

The Regulator's case

Were the actions of the Department, as identified by the parties, 'management action' within the meaning of s 32(5) of the Act?

The action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest

The action taken by departmental management to transfer or move Mr Davis from his role

Did the management action taken by Mr Davis' managers, prior to the action to address the perceived conflict of interest, have a causal connection with Mr Davis' injury?

The conflict of interest scenario was created by Mr Fullelove

The failure by Mr Fullelove to act on the concerns raised by Mr Sharman

The failure by Dr Hall to take action to address the perceived conflict of interest

Did the management action taken by Mr Davis' managers to move him from his position have a causal connection with Mr Davis' injury?

Did Mr Davis' injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment?

The management actions referred to by the Regulator

The manner in which management prepared for and conducted the meeting on 21 March 2017

Were performance issues the real or motivating factor behind moving Mr Davis?

Did Dr Hall come to the 21 March 2017 meeting with a predetermined position, namely that Mr Davis was to be transferred out of Toowoomba to Gatton?

The 13 January 2017 meeting

The 3 March 2017 meeting

Did Dr Hall come to the meeting on 21 March 2017 with only one predetermined decision, namely, to transfer Mr Davis out of the CFSG to Gatton?

Dr Hall misled Mr Davis by stating that he had the power to transfer Mr Davis when he did not

Dr Hall misled Mr Davis by stating that the conflict of interest process had not arisen out of a complaint

Dr Hall misled Mr Davis by stating that the sole reason for the proposed move was the conflict of interest issue when another reason was the alleged and unidentified performance issues of Mr Davis

Dr Hall misled Mr Davis by stating that he had not spoken to Mr Fullelove about the perceived conflict of interest issue

There was never any genuine intent given by Dr Hall or Mr Fullelove to consider the options of either a restructure or a line management alteration

Mr Davis and Dr Colson were being singled out compared to other couples in the Department

The grievance lodged by Mr Davis against Dr Hall and the way that was managed

Procedural failures by the Department in addressing the perceived conflict of interest

The failure to retain the services of an organisational psychiatrist/psychologist

The failure to ensure that Mr Davis and Dr Colson had the availability of another source of HR advice other than Ms Luck

The failure by management to comply with the timeframes indicated to Mr Davis and Dr Colson in the meeting on 21 March 2017 for a resolution of the process, and the delay in the return of the signed declaration of interest forms and the management plan

The failure to have a further meeting with Dr Colson and Mr Davis by representatives of HR

The failure by management to properly explain the process and the procedure of how the conflict of interest was to be dealt with

That unreasonable pressure was brought to bear on Mr Davis to provide a response to the offer of a transfer to BQ particularly in light of the other management failures

The management action referred to by the State

The requirement for Mr Davis to sign a declaration of interest form was reasonable management action taken reasonably

The proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably

Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment

Did Dr Davis' injury arise out of or in the course of Mr Davis' perception of reasonable management action being taken against him?

The State's submissions

The Regulator's contentions and submissions

What is the evidence about Mr Davis' perception of the management action taken against him?

Mr Davis' statements to Dr Hall on 10 March 2017

Mr Davis' email to Ms Luck sent on 14 March 2017

Mr Davis' statements to Dr Hall in the meeting on 21 March 2017

The content of the written grievance Mr Davis made to the Director-General on 25 May 2017

Was the management action being taken against Mr Davis reasonable?

Is there a causal connection between Mr Davis' perception of the reasonable management action being taken against him and his injury?

Conclusion

Reasons for Decision

Background

1. Mr Mattley Davis commenced employment with the State of Queensland in April 1998 in what is now the Department of Agriculture and Fisheries ('the Department').

2. By 2015, Mr Davis was employed in the position of Experimentalist, later called Diagnostic Coordinator, in Crop Protection Systems (the 'CPS').  The CPS is part of the Crop and Food Science Group (the 'CFSG') of Agri-Science Queensland ('ASQ'). ASQ is a business area of the Department.

3. At the times relevant to this proceeding:

   ·Mr Davis worked from the Department's premises in Toowoomba; and

   ·the classification of Mr Davis' position was TO3.

4. In about 2001, Mr Davis became the partner of Dr Emma Colson.  At that time, Dr Colson was employed in the Department.  In 2005, Dr Colson became the Science Leader, later called Director, of CPS.  They married in 2007.

5. In about 2013, Mr Garry Fullelove was appointed as the General Manager of the CFSG.

6. In the years immediately before 2014, Mr Davis' line supervisor was Mr Matthew Hickman. Mr Hickman was the Science Leader of the Sustainable Farming Systems, Research, Development and Extension Directorate (the 'SFS').  The SFS was part of the CFSG.  Mr Hickman worked in Toowoomba.

7. In September 2015, Mr Murray Sharman, Senior Plant Pathologist, CPS, became Mr Davis' line supervisor principally because of Mr Hickman's view that he could not supervise the technical aspects of the work Mr Davis was performing.  Mr Sharman worked in Brisbane.  This change in the line supervision of Mr Davis meant Mr Sharman was supervised by Mr Davis' wife, Dr Colson.

8. In between September 2015 and November 2016, Mr Sharman expressed concern to Mr Fullelove about his supervision of Mr Davis, because, amongst other reasons, it could put him in an awkward position, given that Mr Sharman's supervisor (Dr Colson) was Mr Davis' wife, if he had to deal with performance issues of Mr Davis.  Ultimately, Mr Sharman's concerns were escalated through Ms Keely Smith, Manager, Government and Ethics, and Ms Naomi Luck, Principal Consultant, both of whom worked in Human Resources of the Department, to Dr Wayne Hall, Executive Director, ASQ.  On 16 December 2016, Dr Hall met with Ms Smith and Ms Luck where they raised with Dr Hall the issue of Dr Colson having managerial responsibility for Mr Davis.

9. In early 2017, Dr Hall formed the view that there was a perceived conflict of interest with Dr Colson having managerial responsibility for Mr Davis.  On 21 March 2017, Dr Hall acted to manage the perceived conflict of interest by, with Ms Luck, meeting with Mr Davis and Dr Colson. In that meeting, Dr Hall:

   ·directed Mr Davis and Dr Colson to complete Declaration of Interest Forms ('DIF'); and

   ·proposed that Mr Davis be transferred, at level, out of CPS and the CFSG to the Horticulture and Forestry Science Group (the 'HFSG') of ASQ located at the Department's Gatton Research Station ('the Gatton proposal').

1. Proposals were also made by Mr Davis or Dr Colson about how the perceived conflict of interest could be managed.  They were:

   ·that the management of Mr Davis be realigned so that he reports to another Director in the CFSG ('the management realignment proposal');

   ·that Mr Davis and Ms Lisa Kelly, who made up the Plant Pest Diagnostic Service in CPS, be moved to the Crop Improvement Research, Development and Extension Directorate, under Dr Rex Williams ('the restructure proposal'); and

   ·that Mr Davis work in Toowoomba but in Biosecurity Queensland ('BQ') which was a different business unit of the Department ('the BQ proposal').

2. Ultimately, on 2 June 2017, a written offer was made to Mr Davis that he accept a temporary host placement in BQ for a period of four months. Mr Davis did not see that offer until 5 June 2017 and he decompensated on that day.[1]

   [1] Exhibit 1, docs. 119 and 144.

3. On 6 June 2017, Mr Davis made an application for compensation under the Workers' Compensation and Rehabilitation Act 2003 ('the Act').  On 13 September 2017, WorkCover Queensland rejected Mr Davis' application.  Mr Davis then sought a review with the Workers' Compensation Regulator. By review decision of 13 February 2018, the Regulator accepted Mr Davis' application for compensation ('the review decision').

4. The State of Queensland appeals against the review decision.

Matters not in dispute

1. There is no dispute that Mr Davis was a worker within the meaning of s 11 of the Act. [2]

   [2] The submissions of the State of Queensland filed on 27 August 2019 ('the State's submissions'), para. 209.

2. The parties agree that on the evidence:

   ·Mr Davis suffered a personal injury, namely, anxiety and depression, and that the injury arose out of his employment;[3] and

   ·Mr Davis' employment was the major significant contributing factor to his personal injury.[4]

   [3] The submissions of the Workers' Compensation Regulator filed on 6 August 2019 ('the Regulator's submissions'), para. 66 and the State's submissions, paras. 9 and 209.

   [4] The Regulator's submissions, paras. 64-65 and the State's submissions, para. 209(c).

1. Having regard to the medical evidence tendered by consent, I am satisfied that Mr Davis' anxiety and depression arose out of his employment and that his employment was a major significant contributing factor to that injury.[5]

[5] Exhibit 1, docs. 144, 145, 146, 147, 148, 151, 153, 154, 156, 157, 159, 162 and 164.

The issues in dispute

1. Due to Mr Davis' injury coming within s 32(1)(b) of the Act, s 32(5) must be considered.[6] Section 32(5) of the Act relevantly provides:

   (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 workers expectation or perception of reasonable management action being taken against the worker;

   …

   [6] Blackwood v Mana [2014] ICQ 027, [23] (Martin J, President).

2. Having regard to the contentions of the State[7] and the Regulator,[8] the issues for my determination are whether Mr Davis' anxiety and depression arose out of or in the course of:

   ·reasonable management action taken in a reasonable way by the Department in connection with Mr Davis' employment, within the meaning of s 32(5)(a) of the Act; or

   ·Mr Davis' expectation or perception of reasonable management action being taken against him, within the meaning of s 32(5)(b) of the Act.[9]

   [7] The statement of facts and contentions filed by the State on 6 June 2018 ('the State's contentions'), paras. 30-38.

   [8] The statement of facts and contentions filed by the Regulator on 20 July 2018 ('the Regulator's contentions'), under the heading 'Contentions', paras. 1-5.

   [9] The State's submissions, para. 210 and the Regulator's submissions, para. 357.

1. An appeal of this type is a hearing de novo[10] of the issue determined by the review decision.[11]

   [10] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [24]-[27] (Martin J, President).

   [11] Ibid [37]-[39] (Martin J, President).

2. The onus is on the State to prove, on the balance of probabilities, that Mr Davis' injury is of the kind described in either ss 32(5)(a) or (b) of the Act.[12]

The construction and application of ss 32(5)(a) and (b) of the Act

[12] State of Queensland (Queensland Health) v Q-COMP and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (Hall P).

Section 32(5)(a) of the Act

1. Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of 'injury' where reasonable management action is taken in a reasonable way.[13]

   [13] State of Queensland v Q-COMP [2010] ICQ 6, [21] (Hall P).

1. In order for s 32(5)(a) of the Act to apply, three things must be shown, namely:

   ·that there was reasonable management action; and

   ·that it was taken in a reasonable way; and

   ·that the 'action' gave rise to the disorder.[14]

   [14] Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011, [23] (Martin J, President).

1. The correct enquiry is not whether or not unreasonable management action was the dominant cause of the injury.[15] The phrase 'arising out of' in section 32(5)(a) of the Act can be readily understood, when combined with 'reasonable management action,' as requiring the demonstration of a causal relationship; and the phrase 'in the course of' in section 32(5)(a) of the Act generally requires a temporal connection.[16]

   [15] Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010, [53] (Martin J, President).

   [16] Ibid [56] (Martin J, President).

1. The task for the Commission, when applying s 32(5)(a) of the Act, does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. 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; and sometimes that may involve consideration of what else might have been done however that will only be relevant to whether what was done was, in fact, reasonable.[17]

   [17] Davis v Blackwood [2014] ICQ 009, [47] (Martin J, President).

1. The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental.[18] Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.[19]

   [18] Sabo v Q-COMP [2010] ICQ 47, [21] (Hall P).

   [19] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [65] (Deputy President O'Connor) ('Lawton') citing Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42, 47-48 (Lander J).

1. Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant.[20]  An imperfection in management action may not justify the characterisation of the management action as unreasonable.[21] Management action need only be reasonable; it does not need to be perfect.  Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.[22]

   [20] Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197, 197 (President Hall) ('Delany').

   [21] Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139, 146 (President Hall).

   [22] Lawton (n 19) [68] (Deputy President O'Connor).

1. Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.[23] It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.[24]

   [23] WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93, 94 (President Hall).

   [24] Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481, 481 (President Hall).

1. However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury.[25] In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable.[26] However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.[27]

   [25] Waugh vSimon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028, [41] (Martin J, President).

   [26] Ibid [42].

   [27] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027, [15] (Martin J, President) ('Hardy').

2. Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.[28]

[28] Delaney (n 20), 198 (Hall P) and Hardy (n 27), [15] (Martin J, President).

Section 32(5)(b) of the Act

1. Section 32(5)(b) of the Act has operation:

·when a psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management where the management action is being taken against the worker;[29] and

·in respect of a worker’s perception of action actually taken against the worker.[30]

[29] Wyllie v Q-COMP [2009] ICQ 9; (2009) 190 QGIG 233, 235 (President Hall) ('Wyllie').

[30]Misevski v Q-COMP [2009] ICQ 2, [30] (President Hall).

1. Even if the elements in s 32(5)(a) of the Act are not made out, but the psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management being taken against the worker, then the disorder is withdrawn from being an injury.[31]

[31] Wyllie (n 29), 235.

What is 'management action' within the meaning of s 32(5) of the Act?

1. In Canadian General Electric Company Limited v The Ontario Labour Relations Board,[32] the Supreme Court of Ontario was required to determine whether the Ontario Labour Relations Board acted beyond its jurisdiction in issuing certificates that a trade union was a bargaining agent for particular employees of the applicant company. One of the questions was whether or not the employees concerned exercised '… managerial functions …' within the meaning of the relevant statute. That question arose because the Board had no jurisdiction to issue the certificates if the employees met that statutory description.

   [32] [1955] CanLII 162 (ON SC); (1956) OR 437 ('Canadian Electric').

1. In this regard, Wells J relevantly held:

   It therefore becomes necessary for me to determine as best I can what the Legislature meant when it exempted employees exercising managerial functions and employees employed in a confidential capacity in matters relating to labour relations from the Board's powers as to employees. It is obvious, I think, that "managerial" means something pertaining to or characteristic of a manager and it is equally obvious that the word "manager" means one who manages. In Murray's New English Dictionary the word "function" is defined as the action of performing, or as the special kind of activity proper to anything, the mode of action by which it fulfils its purpose. The word "manage" is said to be equivalent to conducting or carrying on a business or undertaking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking charge of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious, I think, that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of and planning for any particular enterprise.[33]

   [33] Canadian Electric (n 32), 443 (Wells J).

2. In 2007, Vice President Linnane in O'Brien AND Q-COMP [34] cited, with approval, this part of the decision of Wells J in determining whether particular action met the description of 'management action' within the meaning of s 32(5) of the Act.[35] Vice President Linnane's decision has been cited with approval by Deputy President O'Connor.[36]

   [34] [2007] QIRC 75; (2007) 185 QGIG 383.

   [35] Ibid, [106].

   [36] Read v Workers' Compensation Regulator [2017] QIRC 072, [9] ('Read').

3. In my view, the decision of Wells J in Canadian General Electric is of some assistance in construing the phrase 'management action' in s 32(5) of the Act.

4. The verb 'manage' relevantly means '… to handle, direct, govern, or control in action or use'[37] and the noun 'management' relevantly means '… the act or manner of managing; handling, direction, or control.'[38]

   [37] Macquarie Dictionary (7^th ed, 2017) 'manage' (def 4).

   [38] Ibid, 'management' (def 1).

1. Section 32 of the Act provides the following examples of actions that may be reasonable management actions taken in a reasonable way, namely:

·         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

1. An example in an Act of the operation of a provision of the Act is part of the Act.[39] Section 14D of the Acts Interpretation Act 1954 provides that if an Act includes an example of the operation of the provision:

   ·the example is not exhaustive; and

   ·the example does not limit, but may extend, the meaning of the provision; and

   ·the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.

   [39] Acts Interpretation Act 1954, s 14(3).

2. The examples contained in s 32 of the Act are an aid to its interpretation and having regard to the examples, the phrase 'management action' means action taken by a manager, in relation to a worker, in managing, handling, directing or controlling the worker.

1. I accept the Regulator's submission that the Industrial Court of Queensland has taken a wide view of what is 'management action', ranging from the introduction of a behavioural management plan for students administered by a school,[40] to an investigation of a school principal, that principal’s removal from the school and that principal's demotion,[41] to the restructuring of businesses.[42]

   [40] Avis v Workcover Queensland [2000] 67 QIC; (2000) 165 QGIG 788, (788) (President Hall).

   [41] Ivey v Workcover Queensland [1999] 65 QIC; (1999) 162 QGIG 392, (392) (President Hall).

   [42] Versace v Braun [2005] QIC 18; (2005) QGIG 315, 316 (Hall P) and Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95, 95 (Hall P).

1. More recently, Vice President O'Connor, following his Honour's consideration of other authorities and the examples of reasonable management action taken in a reasonable way contained in s 32 of the Act, held that the exclusory action in s 32(5) of the Act was intended by Parliament to relate to specific management action directed to the worker's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in employment. His Honour held that, therefore, the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the worker's employment.[43]

   [43] Read (n 36), [8]-[10], Allwood vWorkers' Compensation Regulator [2017] QIRC 088, [58]-[68], Haack vWorkers' Compensation Regulator [2017] QIRC 115, [44]-[46] and Gilmour v Workers' Compensation Regulator [2019] QIRC 022, [78]-[79].

1. Of course, even if relevant action meets the description of 'management action', there must be a causal or temporal connection with the worker's injury before a consideration of whether the management action was reasonable or taken in a reasonable way in connection with the worker's employment.

The actions of the Department's management referred to by the parties

1. Statements of facts and contentions were filed and served by the State and the Regulator, as were detailed written submissions.  Further, on 9 September 2019, counsel for the State, Mr Murdoch QC, and counsel for the Regulator, Mr O'Neill, made oral submissions in support of their client's cases.

1. Having regard to the cases developed by the State and by the Regulator, the following is a summary of the action of the Department's management, referred to by the parties, as to whether or not ss 32(5)(a) or (b) of the Act have been enlivened in respect of Mr Davis' personal injury.

The State's case

1. The State's statement of facts and contentions, as to why Mr Davis does not have a compensable injury, focused on the statement supporting Mr Davis' application for workers' compensation. In that statement, Mr Davis identified the following actions by Dr Hall as contributing to his injury, namely:

·being forced to sign a DIF to be made to comply with a predetermined management action, thereby inappropriately using his (Mr Davis') marital status;

·having to transfer to another position within the organisation which would hinder his (Mr Davis') career and personal/family life; and

·unreasonable management action and bullying.[44]

[44] The State's contentions, para. 29.

1. The Regulator accepts that it was reasonable management action for the Department to try and address the perceived conflict of interest that had arisen from the relationship between Dr Colson and Mr Davis.[45]

   [45] The Regulator's submissions, para. 78.

1. The State contended that:

   ·the requirement for Mr Davis to sign the DIF was reasonable management action taken reasonably;[46]

   ·the requirement for Mr Davis to transfer to a position outside of CPS, including the management consideration of various proposals made about such a transfer, was reasonable management action taken reasonably;[47] and

   ·the steps taken by the Department to resolve the conflict of interest arising from the reporting relationships between Mr Davis and Dr Colson was reasonable management action taken reasonably; and there was no bullying, at any stage, of Mr Davis and Mr Davis was actively encouraged, supported, consulted and kept informed throughout the process implemented by management.[48]

   [46] The State's contentions, paras. 32-33.

   [47] The State's contentions, paras. 34-36.

   [48] The State's contentions, paras. 37-38.

1. The State submitted that the medical evidence is that the injury arose out of what the medical practitioners described, on the reporting by Mr Davis to them, as being workplace bullying and victimisation in respect of the proposal that Mr Davis change roles.[49] 

   [49] The State's submissions, para. 213.

1. The State further submitted:

   ·having regard to the Regulator's concession, that it was reasonable management action for the Department to try and address the perceived conflict of interest that had arisen from the relationship between Dr Colson and Mr Davis, and that the focus of attention in the present case is whether the manner in which the Department sought, by the proposal that Mr Davis move out of CPS, to address the perceived conflict of interest, was undertaken in a reasonable way;[50] and further

   ·that Mr Davis' injury arose out of his mistaken perception of the reasonable management action being taken against him.[51]

   [50] The State's submissions, para. 214.

   [51] The State's submissions, para. 215.

2. The State submits that in respect of its contention that the manner in which the Department sought to take the reasonable management action, to try and address the perceived conflict of interest, which was taken in a reasonable way, is proven by a consideration of two issues, namely:

   ·the requirement for Mr Davis to sign a DIF was reasonable management action taken reasonably;[52] and

   ·the proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably.[53]

   [52] The State's submissions, paras. 216-237.

   [53] The State's submissions, paras. 238-240.

3. The State also submits that in respect of its contention that Mr Davis' injury arose out of his mistaken perception of the reasonable management action being taken against him, that is proven by the fact that all the steps taken by the State to resolve the perceived conflict of interest was reasonable management action taken reasonably and, as such, the bullying and victimisation allegations made by Mr Davis are based on his misconception of those facts.[54]

   [54] The State's submissions, paras. 241-244.

1. The State also makes submissions in response to the contentions of the Regulator, as summarised below, that the management actions that preceded the reasonable management action to address the perceived conflict of interest were unreasonable or not reasonably taken, and that certain management actions taken in addressing the perceived conflict of interest were not reasonably taken.[55]

[55] The State's submissions, paras. 245-343.

The Regulator's case

1. The Regulator contends that Mr Davis' injury did not arise out of reasonable management action taken in a reasonable way.[56]

   [56] The Regulator's contentions, under the heading 'Contentions', page 3, para. 4.

2. This contention was expanded upon during the course of the hearing.  The Regulator contended that:

·it was unreasonable for Mr Fullelove to put in place a scenario where Mr Davis was reporting through Dr Colson's line of management;

·there was a failure by Mr Fullelove to act on the concerns raised by Dr Sharman to try and address the issue at an earlier stage;

·there was a joint failure by Dr Hall and Mr Fullelove to address the perceived conflict of interest at an early stage, thereby missing opportunities to resolve the issue;

·the manner in which the meeting on 21 March 2017 was conducted was that it was a fait accompli in that Dr Hall came to the meeting with a predetermined position, namely, the Gatton proposal;

·there was never any genuine intent given to consider the management realignment proposal or the restructure proposal;

·the decision to transfer Mr Davis was made without adequate explanation and was made without retaining the services of an organisational psychiatrist in circumstances where there was a substantial upheaval to Mr Davis' employment;

·there was a failure to ensure that Mr Davis and Dr Colson had the availability of another source of Human Resource ('HR') advice other than Ms Luck given Ms Luck's substantial involvement as a management advisor;

·there was a failure to comply with the timeframes, given at the meeting on 21 March 2017, to resolve the process;

·there was a delay in the return of the signed DIFs and the accompanying management plan;

·there was a failure to have a further meeting with Dr Colson and Mr Davis by a representative of HR as requested by Dr Colson on 5 May 2017;

·there was a failure by management to properly explain, to Dr Colson and Mr Davis, the process and procedure of how the conflict of interest was to be dealt with; and

·there was unreasonable pressure brought to bear on Mr Davis to provide a response to an offer to accept a temporary host placement at BQ.[57]

[57] T 4-29, l 31 to T 4-30, l 30.

1. These contentions were developed further in the Regulator's submissions.  The Regulator submitted that:

·preceding the reasonable management action to address the perceived conflict of interest, there had already been a series of management actions that were either unreasonable or unreasonably taken such that Mr Davis' psychiatric injury arises out of those earlier management actions;[58] and

·once the Department did take steps to address the perceived conflict of interest, the actions taken by the Department contained a series of flaws compelling the conclusion that the management action was both unreasonable and was not reasonably taken.[59]

[58] The Regulator's submissions, para. 79.

[59] The Regulator's submissions, para. 80.

1. In terms of the management actions that preceded the reasonable management action to address the perceived conflict of interest, the Regulator contends the following management actions were unreasonable or unreasonably taken:

   ·the conflict of interest scenario that was created by Mr Fullelove;[60]

   ·the failure by Mr Fullelove to act on the concerns raised by Mr Sharman;[61] and

   ·the failure by Dr Hall to take action to address the perceived conflict of interest.[62]

   [60] The Regulator's submissions, paras. 81-97.

   [61] The Regulator's submissions, paras. 98-129.

   [62] The Regulator's submissions, paras. 130-147.

1. In terms of the management actions taken in addressing the perceived conflict of interest, the Regulator contends the following management actions were unreasonable and/or not reasonably taken:

   ·the manner in which management prepared for and conducted the meeting on 21 March 2017;[63]

   [63] The Regulator's submissions, paras. 148-177.

   ·that Dr Hall misled both Mr Davis and Dr Colson in the meeting on 21 March 2017 by:

   -        stating that he had the power to transfer Mr Davis when he did not;[64]

   [64] The Regulator's submissions, paras. 181-187.

   -        stating that the conflict of interest process had not arisen out of a complaint;[65]

   [65] The Regulator's submissions, paras. 188-193.

   -        stating that the sole reason for Mr Davis' proposed move was the conflict of interest issue when another reason was the alleged and unidentified performance issues of Mr Davis;[66] and

   [66] The Regulator's submissions, paras. 194-203.

   -        stating that he had not spoken to Mr Fullelove about the perceived conflict of interest issue;[67]

   [67] The Regulator's submissions, paras. 204-205.

   ·that there was never any genuine intent given by Dr Hall or Mr Fullelove to consider the options of either a restructure or a line management alteration;[68]

   [68] The Regulator's submissions, paras. 206-235.

   ·that Mr Davis and Dr Colson were singled out compared to other couples in the Department;[69]

   [69] The Regulator's submissions, paras. 236-258.

   ·the grievance lodged by Mr Davis against Dr Hall and the way that grievance was managed;[70] and

   [70] The Regulator's submissions, paras. 259-271.

   ·six procedural failures by the Department in addressing the perceived conflict of interest, namely:

   -        the failure to retain the services of an organisational psychiatrist/psychologist;[71]

   [71] The Regulator's submissions, paras. 272-294.

   -        the failure to ensure that Mr Davis and Dr Colson had the availability of another source of HR advice other than Ms Luck;[72]

   [72] The Regulator's submissions, paras. 295-301.

   -        the failure by management to comply with the timeframes indicated to Mr Davis and Dr Colson in the meeting on 21 March 2017 for a resolution of the process, and the delay in the return of the signed DIFs and the management plan;[73]

   [73] The Regulator's submissions, paras. 302-326.

   -        the failure to have a further meeting with Dr Colson and Mr Davis by a representative of HR;[74]

   -        the failure by management to properly explain the process and the procedure of how the conflict of interest was to be dealt with;[75] and

   -        that unreasonable pressure was brought to bear on Mr Davis to provide a response to the offer of a transfer to BQ particularly in light of the other management failures.[76]

Were the actions of the Department, as identified by the parties, 'management action' within the meaning of s 32(5) of the Act?

[74] The Regulator's submissions, paras. 327-333.

[75] The Regulator's submissions, paras. 334-341.

[76] The Regulator's submissions, paras. 342-355.

1. As is evident from the foregoing:

·the Regulator seeks to impugn certain action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest; and

·both parties refer to action taken by departmental management in addressing the perceived conflict of interest.

The action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest

1. For the reasons which I give below,[77] I find that in September 2015, Mr Fullelove made a decision that Mr Sharman supervise Mr Davis. That action was not action directed to controlling part of the everyday duties and incidental tasks of Mr Davis' employment, but was specific action about who should supervise Mr Davis. For these reasons, that action was management action within the meaning of s 32(5) of the Act.

   [77] Paragraphs [74]-[79] of these reasons for decision.

2. The evidence about Mr Fullelove's actions in responding to Mr Sharman's concern about supervising Mr Davis, first expressed by Mr Sharman to Mr Fullelove in September 2015, is referred to below.[78]  The Regulator submits that the failure by Mr Fullelove to take action concerning the perceived conflict of interest was management action taken in connection with Mr Davis' employment.[79]  The State accepted that Mr Fullelove's actions were management action.[80] I agree. 

   [78] Paragraphs [93]-[100] of these reasons for decision.

   [79] The Regulator's submission, para.129.

   [80] The State's submission, para. 256.

1. Mr Fullelove's actions were not actions directed to controlling the everyday duties and incidental tasks of Mr Davis' employment, but concerned Mr Fullelove's management response to the concerns raised by Mr Sharman. I agree with the Regulator that Mr Fullelove's actions had a connection with Mr Davis' employment. For these reasons, that action was management action within the meaning of s 32(5) of the Act.

1. The evidence about Dr Hall's response to the perceived conflict of interest, prior to March 2017, is referred to below.[81] Dr Hall's actions were not actions directed to controlling the everyday duties and incidental tasks of Mr Davis' employment. In my view, Dr Hall's actions were actions concerning the specific issue around Dr Colson having managerial responsibility for Mr Davis. For these reasons, Dr Hall's action, prior to March 2017, was management action within the meaning of s 32(5) of the Act.

[81] Paragraphs [112]-[119] of these reasons for decision.

The action taken by departmental management to transfer or move Mr Davis from his role

1. The parties agree that the action taken by management to try to transfer or move Mr Davis from his role clearly constituted management action taken in connection with his employment which enlivens the consideration of s 32(5) of the Act.[82]  I also agree. 

   [82] The Regulator's submissions, para. 73 and the State's submissions, para. 211.

2. The action taken by Dr Hall, from March 2017, was action to deal with the perceived conflict of interest arising from the relationship between Dr Colson and Mr Davis, by attempting to control where Mr Davis worked in the Department. Further, that action was not action forming part of the everyday duties and incidental tasks of Mr Davis' employment. That action was management action within the meaning of s 32(5) of the Act.

Did the management action taken by Mr Davis' managers, prior to the action to address the perceived conflict of interest, have a causal connection with Mr Davis' injury?

1. The State, in its submissions contends that some of the action taken by Mr Davis' managers, prior to the action being taken to address the perceived conflict of interest, did not have a causal connection with Mr Davis' injury. These were:

   ·the allegation that the conflict of interest scenario was created by Mr Fullelove;[83]

   ·the alleged failure by Mr Fullelove to act on the concerns raised by Mr Sharman;[84] and

   ·the alleged failure by Dr Hall to take action to address the perceived conflict of interest.[85]

   [83] The State's submissions, paras. 248-255.

   [84] The State's submissions, paras. 256-257.

   [85] The State's submissions, paras. 258-267.

2. I will address these matters below using the Regulator's sub-headings.

The conflict of interest scenario was created by Mr Fullelove

1. While there was no express contention by the Regulator that Mr Fullelove's decision was part of the unreasonable management action that had a causal connection with Mr Davis' injury, the issue was the subject of evidence led by both parties and the subject of argument by both parties.

2. The Regulator submits that it was unreasonable management action for Mr Fullelove to put in place the very reporting arrangement, namely, that Mr Davis reported to Mr Sharman who in turn reported to Dr Colson, which gave rise to the perceived conflict of interest which led to Mr Davis having to be moved.[86]

   [86] The Regulator's submissions, paras. 81-97,

3. The State submits that:

   ·the Regulator's assertion is inconsistent with the stresses admitted by the Regulator and the medical evidence, and submits that the injury did not arise out of any action by Mr Fullelove in 2015 or 2016;

   ·the Regulator's assertion is inconsistent with the Regulator's contention that the injury arose out of the management action taken by the Department in trying to remove Mr Davis from his position; and

   ·if the management action taken by the Department to address the perceived conflict of interest between Mr Davis and Dr Colson was taken in a reasonable way, then s 32(5)(a) has been satisfied regardless of whether earlier management action was unreasonable, because s 32(5) of the Act excludes from the definition of 'injury', an injury that arises 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.[87]

   [87] The State's submissions, paras. 252-255.

4. In its submissions in reply, the Regulator submits that the Commission can take into account the management action of Mr Fullelove (and Dr Hall) prior to the management action taken to try to move Mr Davis to address the perceived conflict of interest. This is  because, in reliance of the decision of the Industrial Court of Queensland in Parker v Q‑COMP,[88] it is open to the Commission to conclude that Mr Davis' injury occurred in the course of a continuum of management action that commenced with the decision of Mr Fullelove to put in place the arrangement that gave rise to the conflict of interest.[89]

   [88] [2007] ICQ 31; (2007) 185 QGIG 269 ('Parker').

   [89] The submissions in reply of the Regulator filed on 3 September 2019 ('the Regulator's reply'), paras. 17-19.

5. In Parker, the claimant made a complaint to management about a verbal altercation with another employee concerning the claimant's use of a car park and about that employee's treatment of a co-worker. The claimant's complaints were investigated which resulted in the other employee receiving a warning, in consequence of which the other employee abused the claimant. Other incidents of bullying by the employee against the claimant occurred, in respect of which the claimant made complaints to the manager but asked the manager to take no action. An Industrial Magistrate found that the claimant did not suffer an injury within the meaning of the Act because she had suffered an aggravation of a psychiatric/psychological disorder which arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the claimant's employment.[90]

   [90] Parker (n 88), 270 (President Hall).

1. On appeal to the Industrial Court, the claimant argued that the initial complaints and investigation should have been severed from her subsequent complaints and dealings about stress.  President Hall found that:

   ·while the claimant's initial complaints, and the subsequent investigation, did not cause any anxiety or stress to the claimant, those events were inextricably linked with all which subsequently happened;[91] and

   ·the Industrial Magistrate was correct to take the view that there was one continuum of management action that, whilst not taken against the claimant, had a causal connection with the aggravation of the claimant's psychiatric/psychological injury.[92] 

   [91] Ibid.

   [92] Ibid, 272.

2. In oral submissions, the State distinguished Parker on the basis that, in the present case, the problems for Mr Davis started after Dr Hall decided to try to move Mr Davis out of his position (as a way of dealing with the perceived conflict of interest), which was after the alleged conduct of Mr Fullelove of putting Mr Davis in a situation where he was under Mr Sharman's supervision who, in turn, was under Dr Colson's supervision.[93]

   [93] T 7-21, l 9 to T 7-22, l 34.

3. The evidence was that from about late 2013 or early 2014[94] to about the middle of September 2015, Mr Hickman supervised Mr Davis[95] and that Mr Sharman supervised Mr Davis after that time.[96]

   [94] Exhibit 1, doc. 4.

   [95] T 2-74, ll 1-2.

   [96] T 1-15, ll 34-35 and T 2-74, ll 45-48 .

4. There is a factual dispute about whether Mr Davis, being supervised by Mr Sharman, was proposed by Dr Colson or proposed by Mr Fullelove.  Mr Fullelove's evidence was that he never doubted that it was Dr Colson who suggested making the change so that Mr Davis was supervised by Mr Sharman[97] but stated that it would have been his decision that Mr Davis work under Mr Sharman.[98]

   [97] T 2-74, ll 39-43.

   [98] T 2-73, ll 5-6.

5. It was put to Dr Colson, in cross-examination, that it was she that suggested to Mr Sharman that Mr Davis should come under Dr Sharman's supervision.  Dr Colson said she did not recall having that conversation and that it was Mr Fullelove's decision to do that.[99]

   [99] T 6-78, ll 17-25.

6. On 10 September 2015, in responding by email to Mr Fullelove's earlier email enquiring as to who had suggested the proposed change, Mr Sharman informed Mr Fullelove that it was Dr Colson who suggested making the change.[100]

   [100] Exhibit 1, doc. 8.

7. Mr Sharman's oral evidence was that around 9 September 2015, it was Dr Colson who suggested Mr Davis come under his supervision[101] and in cross-examination Mr Sharman stated it would surprise him if it was true that Mr Fullelove proposed he (Mr Sharman) supervise Mr Davis.[102] Mr Sharman's evidence was that within a couple of weeks of Dr Colson suggesting that he supervise Mr Davis, he was in fact supervising Mr Davis.[103]

   [101] T 1-14, ll 37-45.

   [102] T 1-29, ll 10-14.

   [103] T 1-15, ll 34-35.

8. Having regard to Mr Sharman's email, Mr Sharman's evidence and Dr Colson's lack of recall, the weight of evidence is that it was Dr Colson who suggested Mr Davis be supervised by Mr Sharman. Having regard to Dr Colson's and Mr Fullelove's evidence, Mr Fullelove approved that change in supervision. It was Mr Fullelove's decision that that Mr Davis work under Mr Sharman ('Mr Fullelove's decision').

9. It is for the Commission to weigh and determine the probable cause of an injury, and in doing so, it may be assisted by the medical evidence; however, that task is for the Commission and not the witnesses, and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.[104]

   [104] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

10. There is no clear medical or other evidence that tends to prove Mr Fullelove's decision was part of a chain of management action that had a causal connection with Mr Davis' injury.

11. On the medical evidence, the management action that had the causal connection to Mr Davis' injury commenced with the decision taken by Dr Hall, approximately 18 months later in March 2017, to try to move Mr Davis so that he could not be subject to any supervision by Dr Colson in CPS.

12. Dr Andrew Nielsen, Psychiatrist, reported that the cause of the injury, as reported to him by Mr Davis, was that:

    ·Mr Davis was bullied by a local boss[105] and another boss in Brisbane,[106] both of whom had conspired with one another to have him move to a different job with the excuse being he was incorrectly supervised by his wife which caused a conflict of interest;

    [105] It is reasonable to assume this is a reference to Mr Fullelove.

    [106] It is reasonable to assume this is a reference to Dr Hall.

    ·Mr Davis did not know what it stemmed from and whose idea it was to bully him;

·the conflict of interest was not discussed with Mr Davis' supervisor or team and his bosses wanted to push him out of a job he had been in since 1998, wanting him to drive to a different job, 45 minutes away, in Gatton;

·other staff had a conflict of interest issue but were not so treated; and

·Mr Davis was accused of a breach of the Code.[107]

[107] Exhibit 1, doc. 162, para. [4]

1. Under the heading of 'Conclusions', Dr Nielsen:

   ·diagnosed Mr Davis as having a 'Major depressive disorder in partial remission'; and

   ·opined that the relevant stressors and cause of Mr Davis' psychological injury was being '… obliged to change jobs.'[108]

   [108] Exhibit 1, doc. 162, paras. [46]-[50].

2. When asked to consider if employment was the major significant contributing factor to the injury, Dr Nielsen reported that employment was the major significant contributing factor to the injury and that the cause of the injury was '… the obligation to change roles and the surrounding events and interactions.'[109] Dr Nielsen does not particularise or specifically identify the surrounding events and interactions; however, reading his report as a whole, it is reasonable to conclude that those surrounding events and interactions were those reported to him, by Mr Davis, referred to above in paragraph [83], as being the cause of the injury as understood by Mr Davis.  These events concern actions taken by management after Dr Hall's identification of the perceived conflict of interest.

   [109] Exhibit 1, doc. 162, para. [60].

3. Mr Davis did not give any evidence that Mr Fullelove's decision caused him any anxiety.

4. Unlike the facts in Parker,[110] Mr Fullelove's management action, taken in about September 2015, of approving that Mr Sharman supervise Mr Davis, is remote in time to the injury suffered by Mr Davis.  For that reason, I accept the State's submission that Mr Davis' injury was not causally connected to Mr Fullelove's decision.

   [110] In Parker, the management action that was found to have the causal connection with the claimant's injury commenced on 9 July 2003.  The claimant suffered her injury on 26 August 2003: Parker (n 88), 271-272 (President Hall).

5. For these reasons, Mr Fullelove's decision is not relevant to whether Mr Davis' personal injury is withdrawn from being a compensable injury by the operation of s 32(5) of the Act.

The failure by Mr Fullelove to act on the concerns raised by Mr Sharman

1. The Regulator submits that despite Mr Fullelove, in September 2015, being informed of Mr Sharman's concerns about having to supervise Mr Davis when Dr Colson was his (Mr Sharman's) supervisor, between September 2015 and about September 2016, Mr Fullelove sat on his hands and did nothing which resulted in Mr Sharman escalating his concerns to Ms Smith in November 2016.[111]

   [111] The Regulator's submissions, paras. 98-110 and paras. 116-120.

2. In particular, the Regulator submits that Mr Fullelove failed to take steps to address Mr Sharman's concerns either by taking steps to reinforce with Mr Sharman his obligation to perform his supervisory functions, or by removing Mr Sharman as Mr Davis' supervisor and/or putting in a different reporting structure to remove the perceived conflict of interest.[112]

   [112] The Regulator's submissions, para. 126.

3. The Regulator submits Mr Fullelove's action was not reasonable management action nor was it taken in a reasonable way.[113]

   [113] The Regulator's submissions, para. 128.

4. The State submits that:

   ·the Regulator's submission concerns management action prior to the reasonable management action that caused the injury;

   ·even if Mr Fullelove did engage in unreasonable action in respect of his management of Mr Sharman's concerns, that did not undermine the legitimacy of Mr Sharman's concerns which were ultimately acted upon by Dr Hall; and

   ·the Regulator's submission - that Mr Fullelove's failure to take early action to address the perceived conflict of interest meant other opportunities to resolve the matter were missed - is based on speculation as there is no evidence as to what those other opportunities may have been.[114]

   [114] The State's submissions, paras. 256-257.

5. Mr Sharman's evidence was that he had concerns about the suggestion that he supervise Mr Davis because of the relationship between Dr Colson and Mr Davis; and because of his concerns of compromising his relationship with Dr Colson should he be required to manage HR issues involving Mr Davis.[115]

   [115] T 1-15, ll 24-28.

6. By email dated 9 September 2015, Mr Sharman asked for Mr Fullelove's opinion about this matter and set out the potential good and bad aspects of the proposal that he supervise Mr Davis.  In that email, Mr Sharman stated:

   On the balance of things, I'm not keen but I feel I'm in a difficult position to say no. I guess my question for you is are you ok with this proposed arrangement? If so, I'll give it a go.[116]

   [116] Exhibit 1, doc. 8.

7. Mr Fullelove's email response on 10 September 2015, was that he was keen to explore the landscape as the supervision of Mr Davis had been an ongoing issue for exactly the 'bad' points which Mr Sharman had raised in his earlier email including that he was in a different city to Mr Davis.[117]

   [117] Exhibit 1, doc. 8.

8. Mr Fullelove took no other action in relation to Mr Sharman's concerns until he emailed Mr Sharman on 4 November 2015 stating that he had been working on a plan to have Mr Davis report to Ms Lisa Kelly.[118] Mr Sharman expressed the view that that proposal was a better option than the current arrangement.[119] Ms Kelly worked on the Diagnostics Project in Toowoomba and if that plan had eventuated, Mr Davis would have reported to Ms Kelly, who in turn reported to Mr Sharman, who in turn reported to Dr Colson.[120] Mr Fullelove was unsure if Ms Kelly ever took on that supervisory role.[121] Mr Sharman's evidence was that this proposal, concerning Ms Kelly, never went ahead.[122]

   [118] Exhibit 1, doc. 10.

   [119] Exhibit 1, doc. 10.

   [120] T 2-75, ll 14-25.

   [121] T 2-75, ll 31-35.

   [122] T 1-17, ll 14-15.

9. Mr Sharman's evidence was that he was still expecting a response from Mr Fullelove and for something to happen in the background but it never did.[123] On 21 September 2016, at the time performance development agreements with staff were being completed, Mr Sharman sent a further email to Mr Fullelove stating, once again, that he felt it was not appropriate for him to be the supervisor of the partner of his supervisor, that he was concerned that if there was a performance management issue in the future, it may reflect badly on him as a supervisor and that he did not feel he was in a position to manage Mr Davis openly and effectively.[124]

   [123] T 1-32, ll 12-15.

   [124] Exhibit 1, doc. 14.

10. Mr Fullelove's email response, on the same day, was that the matter remained an ongoing issue, that he had an idea or two but he '… would be keen to hear any solutions you may have' and that he was '… open to all suggestions at present in search for a lasting solution.'[125]

    [125] Exhibit 1, doc. 14.

11. Mr Sharman stated that he was disappointed nothing had happened at that point and that he received no further response from Mr Fullelove about the issue.[126] Mr Sharman then took the opportunity, at a training seminar he attended on 16 November 2016, which was conducted by the HR staff in the Department, to speak with Ms Smith and told her what his concerns were about his current line management structure.[127] In response to Ms Smith's suggestion that he give her more details, by email sent on 17 November 2016, Mr Sharman set out for Ms Smith, in detail, his concerns about supervising Mr Davis.[128]

    [126] T 1-34, ll 17-22.

    [127] T 1-34, ll 29-47.

    [128] Exhibit 1, doc. 15.

1. As will be referred to below, that email resulted in Ms Smith and Ms Luck organising to meet with Dr Hall, which ultimately led on to Dr Hall and Ms Luck meeting with Mr Davis and Dr Colson on 21 March 2017.

2. In my view, leaving aside whether Mr Fullelove's management action from 10 November 2015 through to 21 September 2016, in dealing with Mr Sharman's concerns about supervising Mr Davis, was reasonable or unreasonable management action, the claim made by the Regulator about Mr Fullelove's management action cannot be accepted.

3. There are two reasons for this conclusion.

4. First, unlike in Parker, there is a distinct break in the management action of Mr Fullelove's responses to Mr Sharman's concerns and the injury suffered by Mr Davis.  Mr Fullelove did not take any action, about Mr Sharman's concerns, after 21 September 2016.  Mr Davis decompensated on 5 June 2017.  In my view, Mr Fullelove's impugned management action (or inaction) was remote in time to Mr Davis' injury.

5. Secondly, the medical evidence is that it was the management action that obliged Mr Davis to change roles and the surrounding events and interactions, that had the causal connection with his injury.  There is no medical evidence that tends to prove that Mr Fullelove's management action was part of a chain of management action that had a causal connection with Mr Davis' injury.

6. For these reasons, Mr Fullelove's management action in response to the concerns raised by Mr Sharman, between September 2015 and September 2016, did not have a causal connection with Mr Davis' injury.

7. Mr Fullelove's management action is not relevant to the consideration of whether Mr Davis' injury is withdrawn from being a compensable injury by the operation of s 32(5) of the Act.

The failure by Dr Hall to take action to address the perceived conflict of interest

1. The Regulator submits that:

·following the meeting between Dr Hall, Ms Smith and Ms Luck on 16 December 2016, Dr Hall delayed for a further four months before addressing the issue with Mr Davis and Dr Colson in the meeting on 21 March 2017;[129] and

·if it is accepted that Dr Hall had been aware, in the 13 to 15 months prior to him meeting with Mr Davis and Dr Colson on 21 March 2017, that Dr Colson and Mr Davis had been married and had delayed acting on the conflict of interest issue, then Dr Hall's failure to act earlier, and perhaps allow for a greater period of time to explore and consider other solutions and afford Mr Davis more time to adjust to the proposal that he move position, was either unreasonable management action or management action not taken in a reasonable way.[130]

[129] The Regulator's submissions, para. 142.

[130] The Regulator's submissions, para. 144.

1. The State submits that:

·Dr Hall took prompt action once the matter was brought to his attention as being a specific problem;[131]

[131] The State's submissions, para. 259.

·following his meeting with Ms Smith and Ms Luck on 16 December 2016, Dr Hall did not delay addressing the issue, in that:

-        the time between 16 December 2016 and 21 March 2017 was only slightly more than 3 months;

-        there were two meetings between him, Ms Smith, Ms Luck and Mr Fullelove in February and early March 2017; and

-        Dr Hall had liaised with Dr Michael Kennedy, the General Manager of the HFSG, regarding what position may be available for Mr Davis at the Gatton Research Station; and

·once it is accepted that it was reasonable management action to seek to resolve the perceived conflict of interest, any previous unreasonable management action is irrelevant.[132]

[132] The State's submissions, paras. 261-267.

1. Having regard to the evidence of Dr Nielsen, it does not appear to me that there is any clear medical evidence of a causal connection between Dr Hall's alleged failure to address the perceived conflict of interest prior to March 2017, which caused a reduction in time to explore and consider other solutions for Mr Davis, and Mr Davis' injury.  However, there is a faint suggestion. Dr Nielsen's evidence was that the cause of Mr Davis' injury was the obligation to change roles and the surrounding events and interactions.[133]

   [133] Exhibit 1, doc. 162, para. [60].

2. Both parties seemed to assume there was such a causal connection and this issue has been argued by both parties. In these circumstances, I will give it consideration.

3. Dr Hall commenced as Executive Director of ASQ in December 2015[134] and his evidence was that he believed the first time he became aware that Dr Colson and Mr Davis were married was in a general briefing provided by Mr Fullelove in either late December 2015 or early 2016.  Dr Hall stated that, at that time, Mr Fullelove informed him that Dr Colson was managing a group in which her husband sat and that there had been some issues about Mr Davis' performance and how he worked within a group environment.[135]

[134] T 1-42, ll 38-39.

[135] T 1-44, ll 26-38.

1. Mr Fullelove's evidence was that he recalled having a discussion with Dr Hall about an issue concerning Mr Davis reporting through Dr Colson within the first 12 months of Dr Hall taking over as Executive Director of ASQ.[136] Mr Fullelove then stated that in the time after 16 November 2016, he recalled the relationship between Dr Colson and Mr Davis becoming a more hot topic for discussion about there being a potential conflict of interest and that he thought that was brought to his attention in discussions with Dr Hall.[137]

[136] T 2-76, ll 13-20.

[137] T 2-85, l 40 to T 2-86, l 2.

1. Dr Hall's evidence was that the issue of Dr Colson managing Mr Davis came back to his attention in December 2016 when it was raised with him by Ms Smith and Ms Luck in response to which Dr Hall stated he was not across the detail and said they all should have a follow-up meeting with Mr Fullelove.[138] In cross-examination, Dr Hall stated that he did not take any action until December 2016 because he was not aware of the seriousness of the nature of the conflict of interest.[139]

   [138] T 1-45, ll1-23.

   [139] T 2-7, ll 21-33.

2. In the 13 to 15 months prior to 21 March 2017, Dr Hall knew that Dr Colson and Mr Davis were married, however, there is no evidence he knew it was a serious problem until December 2016.

3. Having regard to the decision in Parker, I accept that I can take into account the management actions of Dr Hall commencing with the meeting on 16 December 2016. 

4. There are two reasons for this.

5. First, from Dr Nielsen's evidence, Dr Hall's management actions from March 2017 had a causal connection with Mr Davis' injury. Secondly, Dr Hall's action commencing on 16 December 2016, after being informed of the issue by Ms Smith and Ms Luck, of wanting to be provided with further information about the issue and having follow-up meetings with Mr Fullelove, Ms Smith and Ms Luck, were inextricably linked with the later action he took in March 2017. 

6. After the issue was raised with Dr Hall by Ms Smith and Ms Luck on 16 December 2016, a meeting took place on 13 January 2017 with Dr Hall, Ms Smith, Ms Luck and Mr Fullelove during which was discussed, amongst other matters, whether Mr Davis could work elsewhere including as a Technical Officer ('TO') at the Gatton Research Facility which would involve Mr Davis still working within ASQ but outside of the CFSG and working under Dr Kennedy.[140] Exhibit 1, document 23 contains emails between Dr Kennedy and Dr Hall and between Ms Luck and Dr Hall about the identification of a TO position at the Gatton Research Facility in February 2017.

[140] T 1-45, l 25 to T 1-46, l 38.

1. A further meeting took place on 3 March 2017 between Dr Hall, Ms Smith, Ms Luck and Mr Fullelove.  Dr Hall's evidence was that the discussion was about there being a potential role for Mr Davis at the Gatton Research Facility and the development of a strategy to gauge that proposal with Dr Colson and Mr Davis.[141] 

[141] T 1-47, l 35 to T 1-48, l 2.

1. The Regulator submits[142] that the issue did not become a priority for Dr Hall until Mr Sharman, a relatively junior employee, made unsubstantiated allegations to Ms Smith which then came to the attention of Dr Hall and that neither the Commission nor it (the Regulator) has the benefit of knowing what Ms Smith told Dr Hall. This is because the State failed to call Ms Smith to give evidence despite her still being employed by the State in the Department, and where she was in Brisbane and available to give evidence.[143]  The Regulator then submitted[144] that in these circumstances, based on the decision of the High Court in Jones v Dunkel,[145] it is open for the Commission to draw an inference that the evidence of Ms Smith would not have assisted the State in light of its failure to call her to give evidence.[146]

[142] The Regulator's submissions, paras. 140-141.

[143] T 2-11, ll 4-14.

[144] The Regulator's submissions, para. 141.

[145] [1959] HCA 8; (1959] 101 CLR 298 ('Dunkel').

[146] The Regulator's submissions, para. 141.

1. This submission was developed further in oral submissions.  The Regulator submitted that from the evidence of Dr Hall, it was reported to him by Ms Smith that issues had in fact been raised by multiple staff from the Toowoomba office, rather than the reality being that it was simply Mr Sharman, the reluctant supervisor, who was the person lighting the fuse for the management action which was to follow.[147]  The Regulator points to Exhibit 1, document 16, being Ms Luck's brief note of the 16 December 2016 meeting, in which she records the situation apparently being described by Ms Smith as 'toxic' and submitted that the entire management response to the perceived conflict of interest was premised upon hyperbole, exaggeration and hearsay allegations made by Mr Sharman to Ms Smith.[148]

[147] T 7-6, ll 40-44.

[148] T 7-6, l 44 to T 7-7, l 14.

1. The State submits that no such inference can be drawn because this was not a situation where there was one person who could have told the Commission the facts and the Commission had no answer from that one person.[149]

   [149] The State's submissions, para. 71, relying on the decision of Kitto J in Dunkel (n 145), 308.

2. The principle in Jones v Dunkel was referred to in Kuhl v Zurich Financial Services Australia.[150] In that case, Heydon, Crennan and Bell JJ stated that two inferences may be drawn from the application of the rule, namely:

·the unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case and that is particularly so where it is the party which is the uncalled witness; and

·the failure to call a witness may also permit a court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[151]

[150] [2010] HCA 11; (2011) 243 CLR 361 ('Kuhl').

[151] Ibid [63] (Heydon, Crennan and Bell JJ).

1. The inferences permitted by Jones v Dunkel which are drawn, if at all, are drawn once all the evidence in the case is in.[152] Further, if the evidence which has been admitted is enough to prove the case of the party who was not called a witness, the tribunal of fact could be justified of not counting the failure of that party to call that witness as something that reduces the strength of that case.[153]

[152] Manly Council v Byrne [2004] NSWCA 123, [54] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[153] Ibid [55] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

1. The inference sought to be drawn by the Regulator is the first type of inference available by the application of the principle in Jones v Dunkel, namely, that Ms Smith's unexplained absence would not have assisted the State's case.

1. This is not a case where I am persuaded I should draw the inference that Ms Smith's evidence would not have assisted the State.  This is because, for reasons which I give below, upon a consideration of all the evidence, the management actions of Dr Hall, particularly those from March 2017, were management actions directed towards his attempt to resolve the perceived conflict of interest arising out of Dr Colson having supervisory responsibility for Mr Davis.[154]

   [154] Paragraphs [194]-[199] of these reasons for decision.

2. That is, in my view, Dr Hall's actions from March 2017 were not taken on the basis of hearsay complaints from many employees or on the basis of there being a toxic workplace, but rather were taken on the basis of his attempt to resolve the conflict of interest arising out of Dr Colson having a supervisory responsibility for Mr Davis.

1. In any event, Dr Hall's management action on 16 December 2016 was reasonable and taken in a reasonable way.  It was reasonable for him to take steps to find out more about the specific issue that had been brought to his attention by Ms Smith and by Ms Luck.  There was a further meeting on 13 January 2017 where the issue about whether Mr Davis could work at the Gatton Research Facility was discussed.  There was the further meeting on 3 March 2017 about a potential role for Mr Davis at the Gatton Research Facility and the development of a strategy to gauge the proposal with both Dr Colson and Mr Davis. 

1. Whilst perhaps these meetings prior to 21 March 2017 could have occurred more quickly after December 2016, they were meetings taken in a reasonable timeframe, with a view to exploring an option to resolve the perceived conflict of interest, before meeting with Dr Colson and Mr Davis.  The draft discussion points, drawn up by Ms Luck for Dr Hall to use when he did meet with Dr Colson and Mr Davis, are in evidence.[155] It is apparent from the meetings which took place prior to the March 2017 meeting, and from those discussion points, that Dr Hall wanted to go to the March 2017 meeting proposing a solution to resolve the conflict of interest issue.

   [155] Exhibit 1, doc. 25, sixth to eighth pages.

2. For these reasons, Dr Hall's action from 16 December 2016, was reasonable management action taken in a reasonable way.  

Did the management action taken by Mr Davis' managers to move him from his position have a causal connection with Mr Davis' injury?

1. The parties agree that Mr Davis' personal injury arose out of or in the course of the management action taken by the Department in trying to move him from his position.[156]

[156] The Regulator's submissions, para. 14 and the State's submissions, paras. 10-13.

1. At paragraphs [83]-[85] of these reasons, I referred to Dr Nielsen's opinion about the cause of Mr Davis' injury.  Dr Nielsen was not called to give evidence in the hearing and his report was tendered by consent.  The particular actions of Mr Davis' employer, which Dr Nielsen opines caused Mr Davis' injury, are referred to in very general terms.

1. Having regard to the evidence of Dr Nielsen,[157] I am satisfied that Mr Davis' injury arose out of the action of Mr Davis' managers to attempt to move him so as to deal with the conflict of interest and arose out of the '… the surrounding events and interactions.'[158]

   [157] Exhibit 1, doc. 162, para. [60].

   [158] Ibid.

2. The next issue, having regard to the contentions and submissions of the parties, is whether Mr Davis' injury is withdrawn from being a compensable injury by the operation of s 32(5)(a) or s 32(5)(b) of the Act, having regard to the management action taken to address the conflict of interest.

Did Mr Davis' injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment?

The management actions referred to by the Regulator

1. At paragraph 78 of the Regulator's submissions filed on 6 August 2019 ('the Regulator's submissions'), it concedes it was reasonable management action for the Department to address the perceived conflict of interest that had arisen from the relationship between Mr Davis and Dr Colson.

2. The Regulator then points to a number of management actions taken to address the perceived conflict of interest which it contends were unreasonable or taken in an unreasonable way which had a causal connection with Mr Davis' injury. Given the number of issues in dispute, it is convenient to deal first with the management actions impugned by the Regulator.

The manner in which management prepared for and conducted the meeting on 21 March 2017

1. The Regulator submits that:

·Dr Hall formed the intention, due to the alleged conflict of interest and the concerns raised with him by Ms Smith, that Mr Davis had to be transferred to a location away from Toowoomba without making any enquiry as to Mr Davis' family circumstances or how the proposed transfer would impact upon Mr Davis;[159]

[159] The Regulator's submissions, para. 155.

·because of the mention in Dr Hall's file note of the meeting on 13 January 2017 of 'performance issues' in relation to Mr Davis, which had never been raised with Mr Davis, the inference may be drawn that a further factor driving the management intention to transfer Mr Davis were the alleged performance issues;[160]

[160] The Regulator's submissions, paras. 156-157.

·the email trail between Dr Hall, Ms Luck and Dr Kennedy, concerning the proposed transfer of Mr Davis to Gatton as a TO in the HFSG, contained an email from Dr Kennedy where he referred to sending a message to Mr Davis to be quite clear about expectations of future performance, such that the only sensible conclusion or inference that can be drawn is that there was some communication between Dr Hall and Dr Kennedy about Mr Davis' performance issues, and that a driving force behind the intention to transfer Mr Davis was the alleged performance issues; [161]

[161] The Regulator's submissions, paras. 158-160.

·having regard to an email from Ms Luck to Dr Hall dated 20 February 2017, in which Ms Luck referred to discussing and firming up their position about there being no suitable vacancies in Toowoomba, management set about manufacturing the outcome that the only viable option was for Mr Davis to be transferred;[162]

[162] The Regulator's submissions, paras. 165-167.

·on all the evidence, the Commission should be satisfied that the only solution that was going to satisfy Dr Hall, to address the conflict of interest, was a permanent one, namely, to transfer Mr Davis out of the CFSG;[163]

[163] The Regulator's submissions, paras. 171-172.

·having regard to these circumstances, and it being highly unlikely, given her history with the Department, that Dr Colson would ever act unethically or unprofessionally in respect of Mr Davis, the approach taken by Dr Hall was heavy-handed and not reasonable management action;[164]

[164] The Regulator's submissions, para. 173.

·the entire management approach to dealing with the conflict of interest issue was flawed from the outset because Dr Hall came to the meeting on 21 March 2017 with a predetermined position, namely, that Mr Davis was to be transferred to Gatton;[165] and

·the appropriate and reasonable management action would have been to:

-        arrange a meeting between Dr Hall, Mr Fullelove, Ms Luck, Dr Colson, Mr Davis and Mr Sharman (if he was willing to attend);

-        explain to Dr Colson and Mr Davis why the perceived conflict of interest was now viewed to be an issue that required resolution; and

-        prior to forming a final position, invite Dr Colson and Mr Davis to put forward options to resolve the issue, investigate such suggestions, fully explain the process to Dr Colson and Mr Davis, raise any management proposals with them and ask them for their feedback, arrange one further meeting (or more) to answer any questions Dr Colson and Mr Davis may have, and provide them with the outcome of the investigations, undertaken by management, to explore the proposals that Dr Colson and Mr Davis had made.[166]

The proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably

1. The State contends that the proposal for Mr Davis to transfer to a position outside of CPS was reasonable because:

·the perceived conflict of interest existed (as admitted by the Regulator);

·the State could transfer or redeploy public service employees within the Department pursuant to s 133(1) of the PS Act;

·due to Dr Colson's seniority and the limited available transfer options for her, the State's preference was to transfer Mr Davis, which was not unreasonable;

·Mr Davis was consulted throughout the process;

·the Gatton proposal put forward by the State was its operationally preferred option, however it was prepared to consider other strategies that Mr Davis (and Dr Colson) might suggest if it sufficiently resolved the conflict of interest issue;

·the restructure proposal put forward by Dr Colson was considered by the State not to be operationally suitable and did not sufficiently resolve the conflict of interest because it shifted the problem by having Mr Davis report to one of Dr Colson's peers; and

·the State agreed to the BQ proposal, put forward by Dr Colson on Mr Davis' behalf, because it was operationally suitable and would sufficiently resolve the conflict of interest.[431]

[431] The State's submissions, para. 238.

1. The State further contends that the BQ proposal was reasonable because:

·it was proposed by Dr Colson;

·it was located in Toowoomba;

·it was to a position at level;

·it was a meaningful role based on Dr Davis' skill set as outlined in his CV;

·Mr Davis had worked for BQ previously;

·it was not proposed that Mr Davis could not continue his flexible working arrangements;

·it was a four month trial period to allow Mr Davis and BQ to assess Mr Davis' suitability for the role and was to include an induction and training program to assist Mr Davis to succeed in the position;

·if the role was not suitable to either party, then other arrangements would be considered;

·if successful it would resolve the conflict of interest; and

·Mr Davis was not concerned that he would not succeed if he went to BQ.[432]

[432] The State's submissions, para. 239.

1. Finally, the State contends that it acted reasonably in respect of the BQ proposal because the State:

·advised Mr Davis within 16 business days of receipt of his CV that BQ would accept him at level as a Biosecurity Officer in Toowoomba, on a three to four month trial basis, for both Mr Davis and BQ to assess his suitability;

·provided Mr Davis with the position description for the BQ position within 18 business days of receipt of his CV;

·provided Mr Davis with the letter of offer for the BQ position within 22 business days of receipt of his CV;

·allowed Mr Davis seven days to indicate his willingness or otherwise to take the BQ offer, which was subsequently extended by a further seven days at Mr Davis' request; and

·responded promptly to Mr Davis' queries and provided opportunities for him to discuss the proposal with relevant officers, such that the State submits that a very high level of personal consultation and support was provided to Mr Davis.[433]

Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment

[433] The State's submissions, para. 240.

1. Both parties agree that it was reasonable management action for the Department to try and address the perceived conflict of interest that arose from the relationship between Dr Colson and Mr Davis.

2. Both the Regulator and the State have marshalled up the evidence to make their respective claims that Mr Davis' injury either did not or did arise out of reasonable management action taken in a reasonable way in connection with his employment.

1. Apart from the response by the Department to Mr Davis' grievance made on 25 May 2017, I have concluded that the management actions, impugned by the Regulator, were reasonable management actions taken in a reasonable way.

1. Having regard to the close connection between the management actions, taken by Dr Hall and Ms Luck in respect of dealing with the conflict of interest between March and June 2017, in my view, in determining whether Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment, I am entitled to take a global view of the management actions that have a causal connection with Mr Davis' injury.

2. I have made my conclusions as to whether the management action impugned by the Regulator, and whether the management action endorsed by the State, was reasonable management action and whether it was taken in a reasonable way in connection with Mr Davis' employment.

3. For the reasons given in these reasons for decision, the reasonable management action taken in a reasonable way in connection with Mr Davis' employment consisted of:

·the way Dr Hall and Ms Luck conducted the meeting with Mr Davis and Dr Colson on 21 March 2017;[434]

·the action of Dr Hall in requiring Mr Davis to sign the DIF;[435]

·Dr Hall's rejection of the management realignment proposal and the restructure proposal; [436] and

·the manner by which the Department put the BQ proposal to Mr Davis and required his response to that proposal.[437]

[434] Paragraphs [155]-[204] of these reasons for decision.

[435] Paragraphs [325]-[343] of these reasons for decision.

[436] Paragraphs [162]-[163] and [205]-[219] of these reasons for decision.

[437] Paragraphs [276]-[281] and [322]-[324] of these reasons for decision.

1. The above management action had a causal connection with Mr Davis' psychiatric and psychological injury.

2. The reality was that the above management action was reasonable management action taken in a reasonable way in connection with Mr Davis' employment.  As is evident from Mr Davis' responses to Dr Hall and Ms Luck during the 21 March 2017 meeting, and as is evident in Mr Davis' grievance (discussed in more detail below), Mr Davis perceived these management actions to be bullying, victimisation and discrimination by Dr Hall and Ms Luck.  While I consider that the Department's response to Mr Davis' grievance was not undertaken in a reasonable manner, my judgement is that Mr Davis' personal injury arose out of or in the course of the above mentioned reasonable management action that was taken in a reasonable way in connection with his employment. The Department's response to his grievance was not specifically identified by Mr Davis as a source of his anxiety. In my view, on the evidence, the management actions that had a causal connection with Ms Davis' anxiety were those he perceived as bullying, victimisation and discrimination that were referred to in his grievance.

1. For these reasons, the State has discharged its onus.  Mr Davis' injury is withdrawn from being a compensable injury because, on the balance of probabilities, Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment.

Did Dr Davis' injury arise out of or in the course of Mr Davis' perception of reasonable management action being taken against him?

1. If I am wrong about the application of s 32(5)(a) of the Act to Mr Davis' personal injury, I will consider whether s 32(5)(b) of the Act applies to Mr Davis' injury.

2. As referred to earlier, s 32(5)(b) of the Act has operation when a psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management action actually taken against the worker.

The State's submissions

1. The State submits that:

·all the steps taken by the Department to resolve the conflict of interest arising from the reporting arrangements between Mr Davis and Dr Colson was reasonable management action taken reasonably;

·it denies Mr Davis was bullied at any stage and submits that he was actively encouraged, supported, consulted and kept informed throughout the process implemented by management, including through communications from Dr Hall and Ms Luck and the capacity to discuss the BQ proposal with Mr Ashton;

·the bullying and victimisation allegations are based on Mr Davis' misconception of the process, which is evident from his misperception throughout the process, that he was targeted and singled out as part of an attack on the relationship between himself and Dr Colson; and

·Mr Davis' misperceptions as to objectively non-existent bullying and harassment caused him to decompensate.[438]

[438] The State's submissions, paras. 241-244.

The Regulator's contentions and submissions

1. The Regulator did not make any detailed submissions in relation to this submission by the State, although clearly, as is referred to earlier in these reasons, the Regulator submits that there was unreasonable management action taken against Mr Davis such that s 32(5)(a) and (b) of the Act are not enlivened.[439]

[439] The Regulator's submissions, paras. 356-357.

What is the evidence about Mr Davis' perception of the management action taken against him?

1. On 9 March 2017, Ms Luck first contacted Mr Davis by phone about the perceived conflict of interest and about Dr Hall and her meeting with him and Dr Colson.[440]

   [440] T 4-40, l 44 to T 4-41, l 11 and Exhibit 1, doc. 29, page 2.

1. The evidence is, from that point on, that Mr Davis was of the view he was being harassed and bullied by the management action of wanting to deal with the perceived conflict of interest concerning him and Dr Colson.

1. That evidence is:

·Mr Davis' statements to Dr Hall in a telephone conversation on or about 10 March 2017;

·Mr Davis' email to Ms Luck sent on 14 March 2017;

·Mr Davis' statements to Dr Hall in the meeting of 21 March 2017; and

·the content of the written grievance Mr Davis made to the Director-General on 25 May 2017.

Mr Davis' statements to Dr Hall on 10 March 2017

1. There was evidence about a return telephone call made by Dr Hall to Mr Davis on 10 March 2017.  Dr Hall had a clear recollection of that conversation.  Dr Hall stated that Mr Davis expressed to him that he was very upset about the telephone call from Ms Luck, that there had been three or four attempts to resolve the issue over the last 10 years, it kept coming up, it was having an impact on him and his family, he believed it was having an impact on his career and that he believed he was being bullied.[441]

   [441] T 1-50, ll 14-35.

2. Mr Davis was cross-examined about this telephone conversation.  Mr Davis' evidence was that there was a telephone call made by Dr Hall to him but he did not have a clear recollection of that telephone call.[442]  I accept Dr Hall's clearer and more precise evidence about the content of his conversation with Mr Davis on 10 March 2017.

[442] T 5-34, ll 1-33.

Mr Davis' email to Ms Luck sent on 14 March 2017

1. In his email to Ms Luck sent on 14 March 2017, Mr Davis stated, amongst other things, that the conflict of interest issue raised by her felt '… like another undue attempt to harass and bully me, through inappropriate focus on my marital status with Emma.'[443]

[443] Exhibit 1, doc. 29, page 1.

Mr Davis' statements to Dr Hall in the meeting on 21 March 2017

1. On a number of occasions in the course of the meeting that took place on 21 March 2017, Mr Davis clearly expressed his view that the identification of the perceived conflict of interest by Dr Hall and the proposed action to be taken to resolve that conflict of interest involved him being bullied, harassed and the subject of unlawful discrimination.

1. In the course of that meeting, Mr Davis stated to Dr Hall and Ms Luck, amongst other things, that:

·his and Dr Colson's situation had come under scrutiny, it was unfair scrutiny, there were other people in the same situation as him and Dr Colson who were not being focused upon and it was a fine line between managing a conflict of interest and discrimination on marital status;[444]

[444] Exhibit 7, 9:38-10:03.

·he could give Dr Hall plenty of instances where being Dr Colson's partner had given him a career penalty and that this was going to be another one;[445]

[445] Exhibit 7, 11:25-11:32.

·it had been tried before and he had taken a career penalty;[446]

[446] Exhibit 7, 11:44-11:48.

·he felt like he was being picked on again, it was being given entertainment by management again, it was going to put him to financial and career detriment and he was not going to stand for it anymore;[447]

[447] Exhibit 7, 11:50-12:04.

·this was the fourth time the issue had been raised by management, in a harassing way, that it had caused him detriment in his career and with the history, this was just another one and in the present case, it has escalated because he now had to leave the unit;[448]

[448] Exhibit 7, 15:10-15:30.

·he had been involved in a traffic accident, and when he came back it was handled very poorly because at the time he was given no support from HR to recover from the accident;[449]

[449] Exhibit 7, 16:05-16:23.

·the information, to be put in the DIFs by Mr Davis and Dr Colson, would be used as ammunition against them and that he and Dr Colson had been hassled by Ms Luck to come down to 'crack a walnut with a sledgehammer';[450]

[450] Exhibit 7, 17:46-18:01.

·he was perceiving harassment from what Dr Hall was saying, he was not going to put up with it any more, he had been very compliant about this in the past and he was not going to comply with it now;[451]

[451] Exhibit 7, 18:22-18:34.

·it spoke volumes that Mr Fullelove was not at the meeting and he thought that this was just a process that had been put in place to 'pound' him and Dr Colson;[452]

[452] Exhibit 7, 35:40-35:53.

·he was Dr Colson's 'Achilles heel' when it comes to her career and that when people want to 'throw stones' at Dr Colson, they raise the conflict of interest issue and management gives it oxygen and entertains it;[453]

·Dr Hall and Ms Luck were not trying to find a solution, they were trying to railroad him and Dr Colson and that they had only picked on Mr Davis and Dr Colson and no one else in the Department;[454] and

·this was the final harassment and the final last ditch attempt to 'smash' him and Dr Colson.[455]

[453] Exhibit 7, 35:54-36:19.

[454] Exhibit 7, 37:33-37:40.

[455] Exhibit 7, 52:43-52:53.

The content of the written grievance Mr Davis made to the Director-General on 25 May 2017

1. By email sent on 25 May 2017, Mr Davis lodged the formal grievance, with Dr Beth Woods, Director-General of the Department.[456]  The content of that grievance by Mr Davis and the Department's response to the grievance are referred to earlier in these reasons.

[456] Exhibit 1, doc. 102.

1. However, it is clear from the content of his grievance that, from Mr Davis' perspective, he considered that Dr Hall's actions towards him, up to that point in time, constituted bullying and harassment.

1. It seems to me that Mr Davis incorrectly perceived the reasonable management action taken by Dr Hall during and following the 21 March 2017 meeting to be bullying, victimisation and unlawful discrimination.

1. In my view, Mr Davis' perception, in part, arose from other management action and interactions he had with management in the past.  It may well have been the case that Mr Davis had been treated unfairly by the Department in the past.  It is also open to conclude, on the evidence, that the conflict of interest that existed in respect of Dr Colson having managerial responsibility for Mr Davis should have been resolved many years before March 2017.  However, even in those circumstances, Dr Hall was still required, upon it being brought to his attention, to deal with the conflict of interest.

2. The fact that the conflict of interest should have been resolved before it came to Dr Hall's attention does not render Dr Hall's management action taken against Mr Davis, upon him becoming aware of the conflict of interest, as unreasonable. 

Was the management action being taken against Mr Davis reasonable?

1. There was reasonable management action taken against Mr Davis which he did perceive as being bullying, victimisation and unlawful discrimination.

2. That action was:

·the requirement for Mr Davis to complete Part A of the DIF and submit that to Mr Fullelove within seven days;[457]

·the requirement that Mr Davis provide his CV to Mr Ashton;[458] and

·the requirement that Mr Davis respond to the BQ offer.[459]

[457] Exhibit 7, 02:50-02:59.

[458] Exhibit 1, docs. 48, 59 and 60.

[459] Exhibit 1, docs. 117.

1. For the reasons given earlier:

   ·it was reasonable management action to require Mr Davis to complete part A of the DIF;[460] and

   ·it was reasonable management action to require Mr Davis to provide his CV to Mr Ashton.[461]

   [460] Paragraphs [325]-[343] of these reasons for decision.

   [461] Paragraph [323] of these reasons for decision.

2. It was also reasonable to require Mr Davis to respond to the BQ offer.  The BQ proposal was raised by Dr Colson on 27 March 2017 as a way to resolve the conflict of interest issue, but where Mr Davis could remain working in Toowoomba.  The BQ proposal was part of the draft management plan to deal with the conflict of interest.  As is referred to earlier in these reasons for decision[462] upon Dr Hall being informed of the potential that the conflict of interest issue could be resolved by Mr Davis moving to BQ, he engaged directly with Mr Ashton about whether there were possible roles for Mr Davis at BQ. That contact resulted in the BQ offer.  It was reasonable management action to require Mr Davis to respond to that offer.

   [462] Paragraphs [279]-[280] of these reasons for decision.

3. As is evident in his grievance, Mr Davis erroneously perceived these reasonable management actions being taken against him as being instances of him being bullied.[463]

Is there a causal connection between Mr Davis' perception of the reasonable management action being taken against him and his injury?

[463] Exhibit 1, doc. 102, third paragraph, second page (in relation to the requirement that he complete the DIF), Exhibit 1, doc. 102, sixth paragraph, second page (in relation to the requirement that he provide his CV) and Exhibit 1, doc. 102, last paragraph, second page and the first three paragraphs on the third page (in relation to the requirement he respond to the BQ offer).

1. On 29 March 2017, when Mr Davis first sought medical treatment in respect of the anxiety from which he was suffering, he expressed the view to his general practitioner that the cause of his anxiety was workplace bullying.[464]  Mr Davis expressed a similar view in subsequent consultations with his general practitioner[465] and then in subsequent sessions with his clinical psychologist.[466] Mr Davis' evidence-in-chief was that when he went to see his general practitioner on 5 June 2017, he told his doctor he felt bullied and that he could not cope with the stress.[467]

[464] Exhibit 1, doc. 143, first page.

[465] Exhibit 1, docs. 142, 143 third page, 144, 145, 146, 147, 148, 153, 154, 156, 157 and 159.

[466] Exhibit 1, docs. 152 and 160.

[467] T 4-74, l 45 to T 4-75, l 2.

1. Dr Nielsen's report tends to prove that the cause of Mr Davis' injury was the obligation for him to change roles and the surrounding events and interactions. As was the case when I considered the application of s 32(5)(a) of the Act, I accept that the management actions taken after the identification by Dr Hall of the conflict of interest, and the subsequent actions taken by Dr Hall, had a causal connection with Mr Davis' injury. Those actions included the management actions taken against Mr Davis that I have referred to above, namely, the requirement that he complete the DIF, the requirement that he provide his CV to Mr Ashton and the requirement that he respond to the BQ offer. Objectively, these were reasonable management actions taken against Mr Davis. Mr Davis perceived them to be something they were not, namely Dr Hall's bullying of him. In my view, these actions were taken by Dr Hall to deal with the conflict of interest issues that came to his attention.

1. For these reasons, even if I am incorrect about the application of s 32(5)(a) of the Act, Mr Davis' injury is withdrawn from being a compensable injury by the application of s 32(5)(b) of the Act.

Conclusion

1. I am critical of the Department for not dealing, in a determinative manner, with the conflict of interest created by Dr Colson having managerial responsibility for Mr Davis, prior to December 2016.

2. Dr Colson became the Science Leader, later called Director, of CPS in 2005.  It is reasonable to conclude that it would have been apparent that the conflict of interest emerged from at least 2005.

3. That lack of action, and other grievances that Mr Davis had with the Department, contributed to his flawed perception of the management action taken by Dr Hall, from March 2017, to deal with the conflict of interest.  Mr Davis' erroneous perception of the action taken by Dr Hall was clearly brought into focus in his response to Dr Hall in the meeting on 21 March 2017 and in his written grievance to Dr Woods and Mr Letts dated 25 May 2017.

4. However, the fact that the Department did not take any determinative action, to deal with the conflict of interest involving Mr Davis and Dr Colson, did not immunise Dr Hall from his obligation to deal with that conflict of interest when it was brought to his attention.

5. The fact that Dr Hall came to a preliminary view early on in his deliberations, that the restructure proposal and the management realignment proposal (which would have kept Mr Davis in the CFSG) was not his optimal resolution of the issue, does not lead to a conclusion that he failed to give proper consideration to them.  On the evidence, fair and reasonable consideration was given by Dr Hall to those proposals.

6. In this appeal, the onus was on the State to prove, on the balance of probabilities, that Mr Davis did not suffer an injury within the meaning of s 32 of the Act. The State has discharged the onus on it.

7. For the reasons given above, Mr Davis' personal injury of anxiety and depression arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment.  If I am wrong about that, then, for the reasons given above, Mr Davis' anxiety and depression arose out of or in the course of his perception of reasonable management action taken by Dr Hall against him.

1. For these alternative reasons, I allow the appeal.

2. Pursuant to s 558(1)(c) of the Act, the decision appealed against is set aside and another decision is substituted, namely, that Mr Davis did not suffer an injury within the meaning of the Act.

1. The Regulator must pay State of Queensland's costs of the appeal.