State of Queensland (Office of the Queensland Parliamentary Counsel) v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 68

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Office of the Queensland
Parliamentary Counsel) v Simon Blackwood
(Workers' Compensation Regulator) [2014] QIRC 068
PARTIES:	State of Queensland (Office of the Queensland
Parliamentary Counsel)
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2012/164
PROCEEDING:	Appeal against a decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON:	11 April 2014
HEARING DATES:	23 July, 1, 12, 13, 15 and 16 August 2013
21 February 2014
MEMBER:	Industrial Commissioner Fisher
ORDERS:	1. The appeal is allowed.
2. The review decision of the Regulator dated

4 April 2012 is set aside.

3.   A new decision rejecting the application for

compensation be substituted in lieu of the
Regulator's decision.

4. Costs are reserved.

CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychiatric injury - Manner employer dealt with ending of employment - Stressors causative of injury - Appellant to establish decision wrongly made - Appellant employer to establish any one of the elements of s 32(1) or (3) not satisfied - Whether reasonable management action taken in a reasonable way - Contract of employment - Admissibility of medical evidence in absence of facts to establish foundation - Medical evidence inadmissible and excluded - Senior Executive Service contract - Contract not
extended - Contract expired in accordance with its
terms - Manner of communicating decision - Support person - Determined reasonable management action taken in a reasonable way - s 32(5) of the Act satisfied - Appeal allowed.
CASES:	Workers' Compensation and Rehabilitation Act
2003, s 32(1), (3) and (5), s 549(3)
Industrial Relations Act 1999 Public Service Act 2008
State of Queensland (Queensland Health) and
Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Australian Meat Holdings Pty Ltd AND Angela
Merilyn Kennedy AND Q-COMP(2006) 181 QGIG 474
Toll Holdings Limited AND Q-COMP (C/2011/14) - Decision Craig Henry Trimble AND Q-COMP and v State of Queensland (for Queensland Audit Office) (WC/2012/73) - Decision
CS Energy Limited v Q-COMP (2008) 188 QGIG 6 WorkCover Queensland v Kehl (2002) 170 QGIG 93
APPEARANCES:	Mr A.K. Herbert, Counsel instructed by Crown Law for the Appellant. Mr S.P. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.
Decision

[1]      Silvio Angelucci had worked in the Office of the Queensland Parliamentary Counsel (OQPC) for 14 years and had risen to the rank of First Assistant Parliamentary Counsel (FAPC), when he sustained physical injuries during his lunch break as a result of a bus accident in June 2009. As a result Mr Angelucci had approximately three months off work and received workers' compensation benefits. On his return, Mr Angelucci joined Drafting Group A, where his supervisor was Theresa Johnson, Deputy Parliamentary Counsel. Mr Angelucci worked to a Suitable Duties Plan (SDP) but encountered some difficulties with the way in which Ms Johnson managed him. Mr Angelucci took a further period of leave from work - 24 December 2009 to 9 February 2010 - and lodged a WorkCover claim for stress arising from his management by Ms Johnson. That claim was ultimately successful on review. Although the State of Queensland (OQPC) appealed that decision to the Queensland Industrial Relations Commission (the Commission), the appeal was subsequently withdrawn.

[2]      On his return to work, Mr Angelucci formally remained within Drafting Group A, but was supervised by an Associate Parliamentary Counsel, David Connolly.

[3]      In February 2010, Ms Johnson was appointed as Parliamentary Counsel, the Chief Executive of the OQPC. After that appointment, Ms Johnson rearranged the drafting groups. Ian Beale, Ian Larwill and Annette O'Callaghan were the three Deputy Parliamentary Counsel, with the two gentlemen taking responsibility for the two drafting groups. Mr Beale became Mr Angelucci's manager from 1 April 2010, although he (Beale) took a period of leave from the OQPC from 15 October 2010 until 19 April 2011.

[4]      Mr Angelucci remained on SDPs between February and August 2010 and took recreation leave between 9 May and 11 July 2011.

[5]      On or about 10 August 2011, Mr Beale received negative written feedback by way of a client survey from an officer of a department and an experienced instructor, Leanne Barbelar, about Mr Angelucci's work on a particular Bill. This was unprecedented. Mr Beale attempted to address the feedback with Mr Angelucci by sending him an email attaching the survey results and, amongst other matters, asking for his response. Mr Angelucci requested further information to enable him to respond, however, Mr Beale advised that he could access much of the information electronically. As a consequence of the emails from Mr Beale, Mr Angelucci took sick leave from 22 August 2011 and he returned to work on or about 7 September 2011.

[6]      Mr Beale provided Ms Johnson with a draft report on Mr Angelucci's performance dated 25 August 2011. Its purpose was to apprise her of Mr Angelucci's work performance generally and specifically in relation to the Bill about which Ms Barbelar had provided negative written feedback.

[7]      Ms Johnson was informed on or about 7 September 2011 that Mr Angelucci was to return to work on a SDP, which had been developed on advice from Mr Angelucci's General Practitioner, Dr Mark Morris. It provided that Mr Angelucci work modified hours of 7.25 hours per day; he was unable to report to Mr Beale or have any one on one contact with him and was unable to participate in a conflict resolution process with Mr Beale. In light of this Ms Johnson instructed Mr Beale not to have any contact with Mr Angelucci. Further, Ms Johnson altered the working arrangements so that although Mr Angelucci was retained in Mr Beale's drafting group, he reported to Mr Larwill.

[8]      At the request of Ms Johnson, Mr Beale provided Mr Larwill with a copy of his report given to Ms Johnson on 25 August 2011 and made several recommendations. These were that Mr Angelucci's work performance be discussed with him, Mr Angelucci be followed up to secure a response to Ms Barbelar's feedback and that training and development needs that had previously been identified with Mr Angelucci be implemented.

[9]      On 14 October 2011, Ms Johnson was informed that Dr Morris had advised that Mr Angelucci was still unable to provide a response to the client feedback as Mr Beale's emails were a source of significant distress to him. Further, he was also unable to receive general feedback regarding his performance and the conflict resolution process could not occur until Mr Angelucci was medically cleared. In light of this advice, the alternative reporting arrangements remained in place.

[10]   On his appointment as FAPC, Mr Angelucci was engaged on a Senior Executive Service (SES) Contract, which provides an appointment period of three years with an option of a further two years. Mr Angelucci's three year appointment period was due to expire on 14 November 2011. He exercised the option available under the contract to seek a further two year appointment by writing to Ms Johnson on 5 October 2011.

[11]   By this time, Ms Johnson had a number of concerns about Mr Angelucci's performance. The Executive Management Group (EMG) met on 31 October 2011. Ms Johnson sought advice at that meeting as to whether to extend Mr Angelucci's contract (and that of another SES officer). As part of the decision-making process the EMG was provided with a copy of Mr Beale's report on the productivity of Mr Angelucci. The collective view was that Mr Angelucci should not be offered the contract extension, however, the final decision rested with Ms Johnson. Ultimately, Ms Johnson decided to not extend Mr Angelucci's contract for a further two years.

[12]   Ms Johnson sought advice from her colleagues at the meeting about how best to inform Mr Angelucci of the outcome. To this end she also consulted the Deputy Crown Solicitor and an officer of the OQPC with a Human Resources background, Tait Lepasteur.

[13]   After considering the advice she had been given, Ms Johnson decided that she should personally inform Mr Angelucci of her decision. Shortly after 5.00 pm on Friday, 2 November 2011, Ms Johnson's Executive Assistant advised Mr Angelucci to attend a meeting in Mr Larwill's office at 5.15 pm. When he arrived, Ms Johnson and Mr Larwill were present. Ms Johnson informed Mr Angelucci of her decision, made a few other brief comments, and then left the room. Ms Lepasteur then entered and spoke with Mr Angelucci about the practical aspects of his employment ending.

[14]   When Mr Angelucci left the meeting, he sought to return to his office through the foyer but found that his access card had been disabled. Mr Larwill facilitated his re-entry and remained until about 8.00 pm to allow Mr Angelucci to clear his office. He regularly went to Mr Angelucci's office to check on his well-being and gave him his mobile number in the event he needed to contact him after leaving.

[15]   Mr Angelucci lodged a WorkCover claim on 21 November 2011. In the Notice of Appeal, the Appellant states that Mr Angelucci claimed he had sustained an aggravation of his earlier psychiatric injury as a consequence of the manner that the OQPC dealt with the ending of his employment. However, the Application for Compensation form tendered to the Commission as a jurisdictional document does not state the nature of the injury. I proceed on the basis that the claimed injury is of a psychiatric or psychological nature, however, I am uncertain whether it falls within s 32(1) or is an aggravation injury under s 32(3) of the Act.

[16]    The claim for compensation was accepted by WorkCover. The OQPC applied for a review of the decision and the Review Unit, Q-COMP confirmed the decision. The State of Queensland now appeals against that decision to the Commission. [Note: Since the filing of the appeal, the Workers' Compensation and Rehabilitation Act 2003 (the Act) has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood (the Regulator). In this decision, the Regulator is used in place of Q-COMP].

Injury

[17]   In its Notice of Appeal, the Appellant put in issue the decision made by the

Regulator on injury and management action. An appellant, being either a worker or

an employer, is required to satisfy the Commission that the decision of the Regulator

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was wrongly made. The matters to be established differ as between a worker

appellant and an employer appellant. An employer appellant is required to establish

that the decision was wrongly made by showing that any one of the elements of

s 32(1) or (3) is not satisfied or, alternatively, by satisfying s 32(5) of the Act i.e.,

that reasonable management action was taken in a reasonable way. In contrast, a

worker appellant bears the onus of establishing all of the elements of s 32(1) or (3)

2

of the Act. A worker appellant is also required to negative any issue raised under s

32(5) of the Act raised by their own evidence, evidence led by the Regulator or

called by an employer that has been granted leave to appear and be heard in the

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proceedings.

[18] In an appeal filed by an employer, the worker may elect to become a party to the

4

appeal (s 549(3) of the Act) but is not a necessary party to the appeal. In the

present matter, Mr Angelucci did not make that election and was thus not a party to

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the appeal. Further, the worker is not a client of the Regulator.

[19]    The subject of an appeal to the Commission is the decision and the appeal is by way

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of hearing de novo. For these reasons, neither party is bound by the case which it

7

developed at the Review stage and it is thus open to a party to raise fresh issues in the appeal not previously considered. This is because the reasoning, determinations, evidence or allegations made contained in the reasons for the decision are not

8

relevant to the scope of the appeal.

[20]    There are no pleadings in appeals to the Commission. The absence of pleadings and the ability to raise new issues in a hearing means that only on opening would the Regulator's case become known. The Appellant considered it was important for the proper and efficient conduct of its case to understand the case to be conducted by the Regulator before the substantive hearing commenced. To this end the State of Queensland extensively endeavoured to ascertain from the Regulator the work events which led to Mr Angelucci sustaining an injury. However, because it was not acting for Mr Angelucci, the Regulator contended it was not appropriate for it to prepare a Statement of Stressors.

[21]   However, in order to assist the Commission, the Regulator stated its case on the

transcript on 1 August 2013 as "the failure to renew his contract of employment in

the circumstances was unfair and amounted to unreasonable management action

taken in an unreasonable way. And further that the manner in which that occurred,

as particularised by the subparagraphs to paragraph 33 of the statement, indicate the

manner in which that was unreasonably implemented." ("The statement" is a

reference to a Statement prepared by Mr Angelucci on 21 November 2011 and

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which the Regulator had provided to the Appellant). The non-renewal of Mr Angelucci's contract was a new issue raised by the Regulator. Having ascertained the work events, the Appellant put forward its evidentiary case, which dealt with all of the matters raised by the Regulator.

[22]    The substantive hearing of the appeal occurred in the week of 12 August 2013. The proceedings were adjourned to find additional days for the purpose of hearing evidence from Mr Angelucci and for final submissions to be made. Approximately three weeks before the hearing was scheduled to resume, the Regulator advised the Appellant that it was not calling Mr Angelucci as a witness but that he had made himself available if the Appellant wished to call him.

[23]   The Commission accepts that the Regulator is not bound to call evidence. In this case, however, the Regulator had consistently indicated that Mr Angelucci was to be called as a witness. Indeed, as mentioned earlier, extra hearing days were obtained specifically for this purpose. The Appellant elected not to call Mr Angelucci after receiving the Regulator's advice. To do so in this case would have meant that the Appellant would have to seek that Mr Angelucci be declared a hostile witness by the Commission so that he could be cross-examined. Consequently, the Commission has not heard direct evidence from the claimant worker, Mr Angelucci. The result is that neither the Commission nor the Appellant are able to properly understand the factors that Mr Angelucci claims were contributory to his psychiatric injury. In addition, it was not until final submissions were made that the Appellant fully understood the Regulator's case.

[24]   The decision not to call the claimant worker as a witness in the proceedings has caused a number of difficulties. In particular, the Appellant made submissions about the admissibility of the medical evidence in the absence of facts to establish the foundation of the medical opinion.

[25]   In order to meet the commitments of Mr Angelucci's General Practitioner, Dr Morris, the Appellant agreed to his evidence being interposed during its case. The Appellant contends that the Commission cannot now consider Dr Morris' evidence as it is hearsay. The Regulator accepts that proposition but contends that the Commission can consider the medical certificates issued by Dr Morris.

[26]   In addition, Mr Angelucci had been ordered by the Commission to undergo a

psychiatric examination by Dr Varghese. The reasons for that order are set out in a

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decision by the Commission as constituted. The Appellant called Dr Varghese to give evidence. His evidence is based in part on his examination of Mr Angelucci but he also had available certain other documents provided by the Appellant, and other medical reports. The Appellant claims that Dr Varghese's evidence also suffers because Mr Angelucci was not called to give evidence about what he reported to Dr Varghese. As a consequence the Commission cannot be satisfied that Mr Angelucci suffered an injury or that the employment elements of the definition of injury have been satisfied. The Regulator contends that Dr Varghese's evidence is not affected because a range of materials were available to him in reaching his opinion.

[27]   In this regard, the Crown Law brief to Dr Varghese was tendered as an exhibit. It sets out background information, referencing Mr Angelucci's prior physical and psychiatric injuries and claims as well as an overview of the circumstances leading to the decision not to extend Mr Angelucci's contract. In addition, a section of the brief is devoted to Mr Angelucci's psychological make-up and refers to various medical reports and records. These were all provided to Dr Varghese. As is Dr Varghese's practice, he examined Mr Angelucci (twice) and made a provisional diagnosis based on the interview and his observations at the interview. Dr Varghese then considered his diagnosis in light of the medical reports. However, Dr Varghese did not approach the examination without any prior knowledge of Mr Angelucci. Dr Varghese had access to some documents as he had prepared an Affidavit dated 25 September 2012 for use in the proceedings on the preliminary issue of referring Mr Angelucci to for medical examination.

[28]   In support of its contentions about the admissibility of the medical evidence, the

Appellant provided the Commission with the decision of the High Court of Australia

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in Ramsay v Watson which held that statements made to an expert witness are

hearsay if they are not confirmed in evidence and the expert testimony based on

those statements may have little or no value. This decision and others were

considered in Cross on evidence - Proof of assumed facts on which expert opinion is

12

based, where the following is stated:

"The 'basis rule' provides that an expert opinion is not admissible unless evidence has been, or will be, admitted whether from the expert or from some other source, which is capable of supporting findings of primary fact which are sufficiently like the factual assumptions on which the opinion is based to render the opinion of value."

[29]   In the present matter, Dr Varghese provided a provisional diagnosis based on his observations and what Mr Angelucci told him, then arrived at his final opinion based on a range of sources, including other medical reports. The Commission has not had the benefit of evidence from Mr Angelucci or the other medical practitioners whose reports were provided to Dr Varghese. Although the opinion of Dr Varghese is partly based on his observations, I am of the view that it is impossible to excise his opinion based on observations, from what he was told by Mr Angelucci or taken into account from the other medical reports. Where his opinion was formed on the basis of the information given to him by Mr Angelucci or other medical opinions, it was formed on the basis of hearsay because no direct evidence has been given by Mr Angelucci or the other medical practitioners. That the information from Mr Angelucci formed a substantial component of Dr Varghese's provisional diagnosis and the other doctors' reports were taken into account in forming his conclusions leads me to determine that the whole of Dr Varghese's evidence, whether written or oral, is inadmissible.

[30]   Dr Varghese's opinion is also not given value by the evidence of the Appellant's witnesses about the reasons for the decision not to extend the contract and the manner in which that decision was communicated. This is because the evidence was given from their perspective and it may or may not accord with Mr Angelucci's perspective and the impact of particular events upon him.

[31]    In light of this the Commission finds the evidence of Dr Varghese to be inadmissible and it will be excluded from my deliberations.

[32]    The evidence of Dr Morris is also inadmissible for the same reason. However, the inadmissibility also extends to the medical certificates he wrote after examining Mr Angelucci. Dr Morris formed an opinion on hearsay. It follows then that the medical certificate, which is a written expression of that opinion, is also inadmissible.

[33]   In Coyne,[13] Hall P decided that in an employer appeal, a worker had the benefit of the decision below, even though in Queensland that decision is an administrative one where there is no requirement to observe the rules of evidence or to hear from anyone other than the person seeking the review. Despite recognizing the fundamental differences between an administrative decision and one made by a tribunal, the President nonetheless considered that a worker who had been successful in the administrative proceedings was entitled to the benefit of that decision until that decision was disturbed on appeal. Further, the worker was not required to go to proof at trial.

[13]

[34]    In that decision also, Hall P noted that in a simple action involving a plaintiff and a defendant if, at the close of the plaintiff's case, the defendant elects not to call any evidence the case will be determined on the whole of the plaintiff's evidence. In this case the whole of the evidence is that called by the Appellant excluding that of Dr Varghese. (Dr Morris' evidence also having been excluded.) The Appellant's challenge to the decision made on injury by the administrative body is rendered nugatory by the fact that Mr Angelucci did not give evidence. The Commission accepts that the Appellant could have elected to call the worker to give evidence, however, for reasons given earlier, that raises other issues.

[35]   The Appellant is unable to show that the decision of the Regulator on injury was wrongly made. What is left is a finding on injury made by an administrative body, such decision having been made without any of the statements, documents or medical opinions being tested in court, despite the Appellant clearly seeking to do so.

Management Action

[36]   The Regulator contends that the decision made by Ms Johnson not to extend Mr Angelucci's contract was unreasonable and the way in which it was done was also unreasonable. Section 32(5) of the Act requires that both the management action and the way that such management action is taken are reasonable. As the Regulator notes in its submission, should the Appellant fail to establish either of these matters, then it fails to discharge its onus regarding s 32(5) and fails on its prosecution of the appeal on this limb.

(i) Decision not to extend the contract

[37]    Ms Johnson's evidence shows that she decided not to renew Mr Angelucci's contract for reasons including:

(a)	His output was significantly less than other FAPCs; and
(b)	Mr Angelucci was unable to work with her or with Mr Beale, leaving only two other DAPCs with whom he could work, although one of those, Ms O'Callaghan, was not at that time in charge of a drafting group. This was unsustainable as staff were required periodically to work together on particular projects.

[38]   In relation to the first matter, the Regulator contends that the decision of the EMG was based on a report that failed to take into account any physical or psychiatric incapacity being experienced by Mr Angelucci and as such, the EMG also failed to consider those matters in reaching the decision. This resulted in a fundamental denial of fairness to Mr Angelucci. In addition, the dismissal itself was unreasonable.

[39]   The Respondent consistently referred to the decision not to extend Mr Angelucci's contract as a dismissal. If a dismissal is defined as a decision by an employer to terminate the employment of an employee without their genuine consent, then a dismissal was effected. However, it is important to consider the nature of the engagement and the contract under which Mr Angelucci was engaged.

[40]   Appointment to the Senior Executive Service (SES), as its name implies, is appointment to the senior management structure of the public service, with all of the extra responsibilities that that entails, including management and supervision of staff. A Senior Executive is required to deal with significant professional challenges and at times, engage in robust conversations. The benefits of appointment are the higher salary and associated conditions but there is also the risk of precarious employment by the loss of tenure for those who are public servants and the greater capacity given to an employer in terminating employment.

[41]   The contract to which Mr Angelucci was a party is a standard form of contract offered under the Public Service Act 2008 to employees who are appointed to the SES. The terms and conditions of appointment are set out in the contract and the relevant clauses are set out below:

"1.

Basis of Employment

The executive accepts appointment as a senior executive on this contract from the commencement date until the termination date.

. . .

6.

Extension of Employment

(1) Subject to subclause (6), the executive may be offered an extension of employment under this contract of up to an additional term of two (2) years from the completion date.

(2)	The executive will be considered for continued employment as a senior executive if the executive gives a notice to the chief executive, indicating a wish to continue employment, not less than twenty-eight (28) days before the completion date.
(3)	If the chief executive receives a notice under subclause (2), the chief executive must give a notice to the executive, not less than fourteen (14) days before the completion date:

(a)	advising the executive that the executive will not be continued in employment as a senior executive; or
(b)	offering the executive continued employment as a senior executive for up to an additional two (2) years after the completion date, to be given effect by variation of the term of this contract.

. . .

7.       Termination

(1) If the executive -

(a)	receives a notice under clause 6(3) or clause 6(7) (as relevant to the circumstances) which advises that the executive will not be continued in employment or will not be reappointed as a senior executive after the completion date; or
(b)	does not receive a notice under clause 6(3) or clause 6(7)

the employment of the executive will terminate on the completion

date, without requiring further notice from the chief executive.

(2)	(a)	The employment of the executive may be terminated by the chief executive prior to the completion date by a notice given to the executive not less than one (1) month before the termination date.
(b)	A notice under paragraph (a) need not give any reason for the termination of the executive's employment."

[42]    It is clear from these terms that the senior executive is engaged for a period of three years, subject to an earlier termination pursuant to clause 7(2)(a). There is no guarantee that the contract will be extended by a further period up to two years nor is there any obligation on the chief executive to extend the contract for the further period. In my view the proper construction of the contractual terms is that the contract expired in accordance with its terms as the contract was for a period of three years, expiring on 19 November 2011. Clause 7(1) makes clear that regardless of whether the senior executive officer receives a notice from the chief executive advising that they will not be continued in employment or reappointed as a senior executive or they do not, the employment of the senior executive terminates on the completion date without any further notice being required to be given by the chief executive.

[43]   Because Mr Angelucci possessed legal qualifications, I consider Mr Angelucci was able to read and understand the contract which he signed. By writing to Ms Johnson seeking an extension of his contract, Mr Angelucci showed that he understood this was a term of the contract. In my view then, Mr Angelucci was able to also understand that it was open to Ms Johnson, as the chief executive, to decide not to extend his contract. I further accept that for a person employed in the same organisation for 16 years a decision not to extend the contract when an extension was sought would be unwelcome, but it cannot be said that it was not a possibility, given the terms of the contract.

[44]   The Commission further accepts that an employer is not immune from scrutiny because of the particular nature of the contract. Section 32(5) of the Act ensures that management action has to be reasonable and reasonably taken and this includes management action taken with respect to contracts of employment such as SES contracts. However, in considering the application of s 32(5), the Commission is also obliged to consider the contractual terms to which the parties to the contract freely agreed. Here, the SES contract permitted its conclusion on the terms set out therein and those terms were activated. There is nothing unreasonable about this.

[45]    Ms Johnson was aware that any decision to not extend Mr Angelucci's contract had to be based on fair and reasonable considerations. She received advice from Crown Law (privilege was waived) to base the decision on the performance of Mr Angelucci and not on illness, his absence from duty on sick leave, the WorkCover claim or success or otherwise with the SDP or rehabilitation program.

[46]   The evidence and the Minutes of the EMG Meeting show that Mr Beale's report formed part of the consideration. Despite Ms Johnson advising that periods of absence were to be excluded from consideration, the report suffered because it included periods where Mr Angelucci was subject to a SDP and thus not fulfilling all of the duties and responsibilities of a FAPC. When Mr Angelucci was on a SDP he worked more in a checking capacity than a drafting capacity. Although checking is an important role of a FAPC, the principal function is to draft the most difficult and sensitive legislation. It is also evident that when Mr Angelucci was working to full capacity in drafting that his output was less than others at the same classification level. However, the quantitative analysis only formed part of the consideration by the EMG.

[47]   The Minutes of the EMG Meeting and the evidence of the participants confirmed that Mr Angelucci's performance was considered against each of the Key Responsibilities of a FAPC as set out in the Position Description. The EMG also considered the other SES officer who had applied for a contract extension against the same criteria.

[48]   The Regulator contends that the decision to not extend Mr Angelucci's contract did not allow an opportunity for Mr Angelucci to respond to the criticisms of Ms Barbelar and this was unreasonable. The sequence of events is that Mr Beale notified Mr Angelucci of the complaint and asked for his response. When Mr Beale pressed this, Mr Angelucci took leave and received medical advice that he could not communicate with Mr Beale about the matter or generally respond. At the time of the decision not to extend the contract, Mr Angelucci had not provided his response nor did it seem likely that it would be provided any time soon as a mediation between Mr Beale and Mr Angelucci was required before that could occur. Mr Beale's request for a response was reasonable and necessary. Mr Angelucci had the opportunity at the time the issue was raised to respond, however, he did not take advantage of that. Even allowing for Mr Angelucci's fragility, it seems to me that Mr Angelucci was avoiding accountability.

[49]   It is the case that the contract could have been extended to allow this response to have been given and, if dissatisfaction with Mr Angelucci's performance remained, his contract could have been terminated without reason. This was not an option considered by Ms Johnson but I do not consider this was unreasonable management action, particularly in circumstances where the opportunity had previously been given.

[50]   The OQPC was confronting a position that Mr Angelucci's output was lower than other FAPCs even allowing for the periods of incapacity and being subject to SDPs. He did not have a constructive working relationship with the chief executive and one of the three DPCs. This could not continue given Mr Angelucci was part of the senior management structure and the nature of the work required staff to work across drafting groups. Three of the four most senior managers were critical of Mr Angelucci's performance and ability to work with others. An experienced instructor had provided written criticism about Mr Angelucci's approach in drafting particular legislation with the result that the legislation requested by the client department was not produced in the desired manner, when it could have been achieved. Mr Angelucci could not cope with the criticism because of his psychological make-up necessitating a further period of leave and resulting in his inability to work with Mr Beale. His method of working had caused concern amongst junior staff and he was not undertaking the full range of management duties. Ms Johnson described issues of delay, inaccessibility and inflexibility with Mr Angelucci.

[51]   The Commission accepts that not all of these concerns had been addressed in performance reviews. The situation facing the OQPC was that staff were working around Mr Angelucci rather than working with him. The employment relationship could not be sustained in those circumstances.

[52]   For these reasons, I am satisfied that it was reasonable management action for Ms Johnson to decide not to extend Mr Angelucci's contract for a further period of two years.

(ii) Manner of communicating the decision

[53]   The Regulator makes the following criticisms about the way in which the decision not to extend Mr Angelucci's contract was communicated to him:

(a)	Ms Johnson informed him of the decision in circumstances where Mr Angelucci had had a workers' compensation claim accepted for a psychiatric injury as a result of Ms Johnson's management;
(b)	Mr Angelucci was not given adequate notice of the meeting;
(c)	Mr Angelucci was not told of the purpose of the meeting;
(d)	Mr Angelucci was not offered a support person; and
(e)	Mr Angelucci's access card was disabled before he had cleared his office.

[54]   Further, the Regulator contends that given the known psychiatric fragility of Mr Angelucci, communicating the decision in the manner described was unreasonable management action taken unreasonably.

[55]    In considering these matters, and at the risk of being repetitive, the Commission has not had the benefit of any direct evidence from Mr Angelucci as to whether any or all of the criticisms made by the Regulator impacted on his psyche. The medical evidence has also been excluded. The only evidence I have before me of Mr Angelucci's psychiatric vulnerability is the evidence of the witnesses called by the Appellant. The Commission accepts that those witnesses were aware of Mr Angelucci's fragility and it is in this light that I make the following findings.

[56]   To assist the Commission in determining whether Ms Johnson had engaged in reasonable management action in a reasonable way by communicating the decision in the manner described, the Appellant requested Dr Peter Cotton, Consulting Clinical and Organisational Psychologist to review the file and provide a specialist opinion. Dr Cotton has extensive experience in reviewing psychological injury workers' compensation claims where the reasonableness of management action is contested. He also has knowledge of SES contracts in state and federal public services.

[57]   The Commission accepts that it must decide whether the management action was reasonable and taken reasonably. However, given the complexity of the circumstances, i.e., Mr Angelucci's psychiatric vulnerability, I consider that it is appropriate to take into account Dr Cotton's opinion in reaching the decision I am required to make.

[58]    Ms Johnson was aware of Mr Angelucci's psychiatric vulnerability and, consistently

14

with the decision in WorkCover Queensland v Kehl, was concerned to ensure that the decision could be communicated in an appropriate manner, sensitive to these vulnerabilities. To this end, Ms Johnson took advice from the Deputy Crown Solicitor, Crown Law; Ms Lepasteur and consulted her colleagues. The reality confronting Ms Johnson was that there was no best way or even a good way to deliver the news to a person as apparently fragile as Mr Angelucci. Ms Johnson had limited options as to how to communicate the decision - to personally inform Mr Angelucci of the decision, to send him a letter either at home or at work or to not provide any advice as to the decision. The latter course was permissible under the terms of the contract.

[59]   Ms Johnson determined that as it was ultimately her decision not to extend the contract, she should be the one to inform Mr Angelucci of this. Her decision to do it personally was reasonable given she was the decision-maker and notwithstanding her efforts to avoid contact with Mr Angelucci because of their past history. It was not as though Mr Angelucci had no contact at all with Ms Johnson after his successful workers' compensation claim. Ms Johnson gave evidence, under cross-examination, that Mr Angelucci met with her on 19 August 2011 about the issue that was the subject of negative criticism by Ms Barbelar. Ms Johnson recollected that Mr Angelucci requested he be provided with the full file on the issue about which the written complaint had been made by Ms Barbelar. However, the questions asked while Ms Johnson was being cross-examined suggest that Mr Angelucci was providing a verbal response to the criticism. Ms Johnson's evidence is to be preferred. Given her evidence, it seems reasonable to infer that Mr Angelucci requested the meeting. This casts considerable doubt on the Regulator's contention that Mr Angelucci was having continuing issues with the management of Ms Johnson between August and November 2011.

[60]   In my view, that Mr Angelucci initiated a meeting with Ms Johnson on 19 August 2011 undermines the Regulator's case that it was unreasonable management action taken unreasonably for Ms Johnson to communicate her decision to Mr Angelucci on 2 November 2011.

[61]   Ms Johnson endeavoured to minimise the impact on Mr Angelucci by not giving him much time to ruminate on the purpose of the meeting. Ms Johnson believed that by being called to a meeting with her, Mr Angelucci would have some sense of the purpose of the meeting. She had been informed by a senior officer of the Public Service Commission that Mr Angelucci was becoming increasingly stressed that he had not received an answer to his request for a contract extension. She did not wish to give Mr Angelucci a longer period of notice as she considered this would add to Mr Angelucci's stress or possibly he would have left the office so that she would be unable to communicate the decision to him.

[62]   In light of Mr Angelucci's predisposition, I consider it was likely that his anxiety would have increased if longer notice of the meeting had been given and its purpose notified. From Ms Johnson's evidence, it appears that Mr Angelucci had a reasonable belief about the purpose of the meeting in any event. In light of Mr Angelucci's avoidance behaviour, it was also a reasonable belief that Mr Angelucci might have avoided the meeting had a longer period of notice been given.

[63]   Ms Johnson decided to hold the meeting after 5.00 pm as most administrative staff would have left the office and, as Parliament was not sitting, there would be fewer staff present. She considered that this would cause less stress to Mr Angelucci than if he was told during the working day. Again, this is evidence of Ms Johnson's sensitivity to the issue.

[64]    Ms Johnson decided the meeting should be held in Mr Larwill's office as Mr Larwill

was Mr Angelucci's supervisor and Mr Angelucci was used to having meetings

there. The Regulator contends that it was not reasonable management action taken

reasonably for Mr Angelucci not to be offered a support person for the meeting

15

especially where the employer had knowledge of his past vulnerabilities.

Ms Johnson acknowledged that she had not considered offering Mr Angelucci the opportunity to have a support person present. She had assumed Mr Larwill would fulfil this role as he had been supportive when Mr Angelucci had sustained his physical injuries in 2009. The Commission accepts however that Mr Larwill was not there as a support person. Ordinarily, a support person is chosen by the employee who is the subject of the management action.

[65]    It came as a surprise to Ms Johnson when Mr Angelucci asked for a support person. Both Mr Larwill and Ms Johnson agree that Mr Angelucci asked whether he could have a support person only after he had been told that his contract was not being extended. I accept that evidence which is also supported by a contemporaneous note made by Ms Johnson.

[66]   Ms Johnson was only at the meeting long enough to inform Mr Angelucci of the decision, to advise that he had been placed on leave to his completion date without detriment to his annual leave and to express regret about the situation. She had put in place supports for Mr Angelucci by having Mr Larwill present and Ms Lepasteur entered the room to discuss administrative matters after she had left.

[67]    Given Mr Angelucci's position as an SES officer, I do not consider it was necessary for the employer to offer him a support person. Appointment to the SES indicates a level of capacity to deal with a senior management role and capacity to deal with challenging circumstances. He had knowledge that his contract might not be extended as evidenced by his application. I am content to make this finding even allowing for Mr Angelucci's vulnerabilities. The decision was communicated in an appropriate way by the decision-maker.

[68]   The Regulator was also critical of the meeting not being adjourned to allow Mr Angelucci to arrange a support person. By that time, there was nothing a support person could have done to minimise the impact of the notification of the decision. Support might have been required afterwards and this was provided by Mr Larwill, although I accept that Mr Larwill was not selected for this purpose by Mr Angelucci.

[69]    At worst the absence of an employee selected support person in this case could only be described as a blemish.

[70]   I also do not accept the submission of the Regulator that Mr Angelucci was denied natural justice by not having been given the opportunity to argue against the decision. The decision not to extend the contract was the information that had to be delivered and it was not a case where the decision could be debated. The decision had been made for reasons relating to Mr Angelucci's performance and his inability to work with two senior managers. As mentioned earlier, SES officers in the Queensland Public Service are in a different position to employees engaged under an award or otherwise entitled to access the unfair dismissal provisions of the Industrial Relations Act 1999. Although natural justice might be afforded by a chief executive, it is not prescribed by the contract or the Public Service Act 2008. In the circumstances it was not unreasonable management action not to give Mr Angelucci the opportunity to put his case forward.

[71]    Having considered the evidence, I am satisfied that the manner in which Ms Johnson communicated her decision not to extend Mr Angelucci's contract was reasonable management action taken in a reasonable way.

[72]    The Regulator also criticised the disabling of Mr Angelucci's access prematurely. I am prepared to accept that this might have added to any distress Mr Angelucci felt. However, in the scheme of things it was a blemish as Mr Larwill remained to assist Mr Angelucci when necessary and regularly checked on him.

Conclusion

[73]   Given Mr Angelucci's classification as an SES officer, I am satisfied that the decision not to extend the contract and the manner in which that decision was communicated to Mr Angelucci were reasonable management actions taken reasonably. In the circumstances, the Appellant has satisfied the provisions of s 32(5)(a) of the Act.

[74]    The appeal is allowed. The Commission sets aside the decision of the Regulator and substitutes a new decision rejecting the application for compensation in lieu of the decision of the Regulator.

[75] Costs are reserved.

[76] Order accordingly.
1

State of Queensland (Queensland Health) and Q-COMP and Beverley Coyne (2003) 172 QGIG 1447

('Coyne').
2
Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision
3

ibid.

4
SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision
5
In Australian Meat Holdings Pty Ltd AND Angela Merilyn Kennedy AND Q-COMP, Hall P held that it would be wrong for Q-COMP to treat an employer as a client and to take instructions from an employer: (2006) 181 QGIG 474 at 476. In my view, the decision is equally apposite where a worker is not a party to an employer's appeal.
6
State of Queensland (Queensland Health) and Q-COMP and Beverley Coyne (2003) 172 QGIG 1447.
7
Toll Holdings Limited AND Q-COMP (C/2011/14) - Decision
8
Craig Henry Trimble AND Q-COMP and v State of Queensland (for Queensland Audit Office)
(WC/2012/73) - Decision <
9

The Regulator consistently referred to the contract not being renewed. For reasons explained later in this decision, the contract was not extended. Hereinafter, I have replaced the Regulator's reference to "non-renewal" with the contract not being extended.

10

State of Queensland AND Q-COMP (WC/2012/197) - Decision

11

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.

12  th

Heydon J D, Cross on evidence (Chatswood, N.S.W.: LexisNexis Butterworths, 9 Australian ed, 2013) at

Chapter 15: (

[Accessed 3 April 2014].

State of Queensland (Queensland Health) AND Q-COMP AND Beverley Coyne (2003)172 QGIG 1447 at

14

WorkCover Queensland v Kehl (2002) 170 QGIG 93.

15

WorkCover Queensland v Kehl (2002) 170 QGIG 93; CS Energy Limited v Q-COMP (2008) 188 QGIG 6

at 8.