Ticehurst v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  Ticehurst v Simon Blackwood (Workers'

Compensation Regulator) [2014] QIRC 008

PARTIES:	Ticehurst Joe
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO/S:	WC/2012/391
PROCEEDING:	Appeal against a decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON:	17 January 2014
HEARING DATE:	4-7 June 2013
12 August 2013 (Appellant submissions) 4 October 2013 (Respondent submissions)
MEMBER:	Deputy President Swan
ORDERS :	1. The appeal is dismissed
2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Simon Blackwood (Workers' Compensation Regulator) – Appellant bears the onus of proof – whether the
injury arose out of reasonable management action
– Appellant suffered a personal injury, namely
adjustment disorder and conversion disorder – the
disorder did not arise out of reasonable
management action taken in a reasonable way –
application dismissed
CASES:	Workers' Compensation and Rehabilitation Act
2003, s 32
APPEARANCES:	Mr L. Bertrand of Beaudesert Legal for the Appellant. Mr F. Lippett, Counsel instructed by Simon Blackwood (Workers' Compensation Regulator).

[1] This matter is an Appeal by Mr Joe Ticehurst (the Appellant) pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Review Unit of Q-COMP dated 19 September 2012. Since the hearing of this application, 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.

[2]      The Regulator's decision determined that the Appellant had satisfied the definition of injury pursuant to the Act, but rejected the claim on the basis that:

"Although your injury may fall within section 32(3) of the Act, section 32(5) excludes the kind of injury you have sustained from being compensable, as it has arisen out of reasonable management action taken in a reasonable way.".

Onus of Proof

[3]      The onus of proof lies on the Appellant to establish that there is an error in the Regulator's Review Decision. The standard of proof is on the balance of probabilities.

[4]      The hearing is a hearing de novo.

Matters to be determined

[5]      It is accepted that the Appellant is a "worker" for the purposes of the Act.

[6]      It is also accepted that the Appellant suffered a personal injury (an acute anxiety and/or conversion disorder, and/or tremor and/or adjustment disorder and/or severe depression) which arose out of his employment at CSR, and that employment was a significant contributing factor to the injury.

[7]      The question to be determined is whether or not the injury arose out of reasonable management action taken in a reasonable way.

[8]      The Act relevantly provides:

"32 Meaning of Injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."

…

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a)	reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)	the worker's expectation or perception of reasonable management action being taken against the worker;
(c)	action by the Authority or an insurer in connection with the worker's application for compensation.".

Witnesses

[9]      Witnesses for the Appellant were:

 Mr Joe Ticehurst

	Mr Lance de-Har (Storeman CSR)
	Mr Wayne Ringuet (Warehouse Operator CSR)
	Dr Douglas Tong (General Practitioner)
	Mr Damien Hoare (former CSR worker)

 Ms Michelle Alexander (Psychologist).

[10]    Witnesses for the Regulator were:

	Mr Robert Jabbar (Distribution Centre Warehouse Manager)
	Mr Gavin Brown (Regional Logistics Manager CSR)
	Mr Keith Wright (Supervisor CSR).

Appellant's evidence

[11]    The Appellant started work for CSR at its Coopers Plains gyprock factory in 2005.

[12]   He stated that he left CSR during 2009 because of a personality clash with a co- worker [T2-9].

[13]    He returned to CSR some four months later as a forklift driver.

[14]    The Appellant had worked initially in the bulk area on shift work from 11.00 a.m. to 7.00 p.m. but later worked on the night shift from 9.00 p.m. to 5.00 a.m.

[15]   The Appellant's application for workers' compensation was lodged with the Insurer (CSR) and was rejected. Upon further application to the Regulator for review of the Insurer's decision, the Regulator upheld the Insurers' decision. The Appellant now appeals the Regulator's decision by way of Notice of Appeal dated 15 October 2012.

[16]    The stressors, briefly described at this point, are listed hereunder. The Statement of Stressors were filed with the Queensland Industrial Relations Commission (QIRC) on 10 January 2013.

(1) "docking of pay"

"The first stressor is the docking of the Appellant's pay by CSR in late February - early March 2012 for being late after having complained about the re-hiring of Mr Brock Stanfield.

The Appellant had never been docked pay before. The Appellant was not
and is not aware of anyone else having been docked their pay for being late.
It was at this stage that the Appellant felt targeted by CSR management.

Because of this, the Appellant suffered stress and this contributed to his injury.

(2) "Suggestion of laziness/underperformance"

The employer CSR alleged on numerous occasions that the

Appellant was underperforming and/or lazy.

Mr Keith Wright told the Appellant words to the effect of that the

slowdown in productivity was due to the Appellant's attitude.

On another occasion, Mr Robbie Jabbar stated to the Appellant "I
don't pay for you to stand around and talk.".

There was a meeting on 21 May 2012 between Mr Gavin Brown and the Appellant (with Mr Wright present) in which Mr Brown told the Appellant that he was underperforming.

There was an email from Mr Brown to the Appellant on 25 May 2012 inter alia stating that "you were witnessed making statements, 'I will come in and just stand around all night' and I have been made aware of concerns regarding your performance and the fact that you stated you would come in and stand around and do nothing along with the drop in output is a concern that I feel needs to be addressed.".

There were other incidents as well, in which it was suggested that

the Appellant was underperforming and/or lazy.

All these incidents caused or contributed to the Appellant's injury.

(3) "Meeting and shift change"

During the meeting on 21 May 2012, it was announced that the Appellant's

shift was being changed.

The Appellant said that Mr Wright told him that this shift change occurred
because he was not prepared to compromise on safety issues.

The Appellant claims he was not consulted in relation to the change of shift.

The Appellant was denied natural justice with respect to a decision which
would affect him, and particularly so because of his family commitments.

The shift change and the way it was done caused stress to the Appellant and contributed to the Appellant's injury [Appellant's Statement of Stressors - Annexure A].

[17]    It is clear that the Appellant relied upon the stressors nominated in his Statement of Stressors and was not seeking to broaden his case beyond those matters. The Regulator during the course of the hearing, had broadened the issues to deal with other instances involving the Appellant which had occurred at the workplace. The Regulator submitted that it was highlighting other factors, together with the nominated stressors, to show that the injury suffered by the Appellant was as a consequence of his "perception" of management action.

[18]    The Appellant did not address those broader issues identified by the Regulator in his final submissions. Rather, he relied upon addressing the nominated stressors. Upon receipt of the Regulator's submissions, he responded to those submissions by stating:

"The respondent's submissions discuss the issue of safety at the employer's workplace, which was an issue often ventilated at the hearing, but which was not discussed in the appellant's submissions, Some observations about the issue of safety are necessary in order to rebut the suggestion that the appellant's complaints about safety were wrong and without basis, particularly since more generally the respondent's submissions criticise the appellant's perceptions of various matters, including safety matters.".

[19]    In the course of making this decision, and in the particular circumstances of this case I have given appropriate consideration to the Appellant's nominated stressors.

Medical Opinion

[20]    On 25 May 2012, the Appellant was sent home from work because he believed that he couldn't function anymore and his hands were shaking [T2-37].

[21]   The Appellant saw Ms Alexander the following week. The Appellant returned to work on 20 May 2012 but found that the shaking he was experiencing continued and he was sent home.

[22]    Dr Tong saw the Appellant on 28 May 2012 and observed that the Appellant's arms were shaking [T3-56], as had Ms Alexander [T4-3].

[23]   Ms Alexander stated that in her view the Appellant was suffering from an adjustment disorder mixed with depression and anxiety and had suicidal ideation [T4-8].

The Matter to be Determined by the Commission

[24]   The Regulator states that the Appellant's disorders arose out of Mr Ticehurst's inaccurate perceptions of some workplace matters and out of management action which was reasonable and which was taken in a reasonable way.

[25]   The matter to be determined by the Commission relates to whether or not the Appellant's injury occurred as a consequence of unreasonable management action taken in an unreasonable way by CSR in connection with the Appellant's employment.

Docking of pay

[26]    The 'docking of pay' incident, in context, appeared to have occurred around the time of CSR re-employing Mr Stanfield at the site. Mr Stanfield was an ex-employee of CSR with whom the Appellant appeared to have some concerns.

[27]    It is accepted that previously CSR had not docked the Appellant's pay when he was late.

[28]   Mr Jabbar's evidence was that when an employee was late, he usually manually over-rode the record the following day to show the full working hours, but then deducted the time added to the record from the employee's Rostered Day.

[29]   The Appellant's time sheets did show a number of late starts at work "just about every day" according to the evidence of Mr Wright. However, under cross- examination, Mr Wright accepted that the Appellant often came in well before the shift started [T4-64]. CSR said that the late arrival of the Appellant on many occasions caused difficulties on the night shift.

[30]   However, in the particular instances where the Appellant had been docked pay for being late, Mr Jabbar said that he had no intention of doing that at that time. Rather his evidence was that "it's easily overlooked because it's not on the scheduled time so it doesn't pick up" [T3-37]. In effect, inadvertence was the cause of the 'docking of the pay'.

[31]   Having considered all the evidence around this point, I have determined that the actions of CSR were far from in appropriate or unfair. I have accepted CSR's evidence that the docking of pay on these occasions was unintentional. The Appellant's perception is flawed.

[32]    Having considered the evidence around this point I have determined that the actions of CSR were far from inappropriate or unfair. I have accepted CSR's evidence that the 'docking of pay' on these occasions was unintentional. The Appellant's perception in this instance is flawed.

Suggestion of laziness/underperformance and meeting and shift change

[33]   Upon the question of "suggestions of laziness/underperformance" the Appellant stated that he had been told he was "lazy" on occasions by Mr Brown and also by Mr Wright. During further evidence, the Appellant said he had not been told that he was "lazy" as such, but the inference was clear in his view.

[34]    The Appellant said that other CSR management personnel had told him that he was underperforming or standing around on numerous occasions. The Appellant stated that Mr Jabbar had said to him that "I don't pay you to stand around" although in cross examination Mr Jabbar denied this.

[35]   These issues were raised in a meeting with Ms Alexander who stated that the Appellant:

"…. felt very stressed about expectations put on him about his job since he called

HR regarding another incident and he felt that – I felt that he was ruminating on the thought that they thought he was a lazy worker, and he's a – in my opinion, a

very conscientious person, and the thought that they were calling him lazy and

irresponsible is really – shook Joe up." [T4-4].

[36]    The evidence more than suggests that the Appellant believed that he was being seen as lazy at the workplace and that this had an adverse and injurious affect on him. All CSR evidence was to the fact that the Appellant was a diligent worker and his work performance had only altered prior to his leaving CSR. Evidence from co- workers and CSR management was that the Appellant had always been a diligent and reliable employee, but that somehow his attitude and work performance had deteriorated. I have accepted that evidence as reliable. In saying that, I have also formed the view that the Appellant's attitude to work had deteriorated so much so that CSR appropriately considered means of resolving the issue.

[37]   Mr Brown advised the Appellant that CSR intended changing his shift times from

11.00 am – 7.00 pm to 9.00 pm - 5.00 am. The Appellant was given 7 days notice of

the change and upon his request, another 7 days were permitted before the changed
shift came into effect.

[38]   The Appellant objected to these changes on the basis that he believed CSR (and specifically Mr Jabbar and Mr Brown) was unfairly targeting him. The basis for this belief was his speaking out about the re-employment of Mr Stanfield. Mr Brown responded by stating that it had been 3½ months since Mr Stanfield had been re- employed and he did not accept that the Appellant was being targeted regarding this issue.

[39]   Mr Brown stated that he had taken into account the Appellant's family responsibilities, but believed that a change in shift hours, "where you can work more closely with your warehouse manager and myself to assist in improving outcomes" would be the best course to adopt. As well, Mr Brown indicated that the Appellant was afforded extra time in which to arrange his family responsibilities before commencing night shift.

[40]    The Regulator's evidence is that on 21 May 2012, the Appellant had started work at 7.00pm on overtime. Mr Brown, at that time, spoke to employees on the night shift

about complaints which had been made concerning "bad wood – gyprock". Mr

Brown advised staff to adhere to safety rules and procedures.

[41]   The Appellant responded that the team were working safely and then stated, "How

would you know – you're never there". Mr Brown called the Appellant into his

office to discuss with him a series of issues relating to concerns of underperformance, punctuality matters, the induction form issue and a text the Appellant had sent to Mr Jabbar which in Mr Brown's view was offensive. The text was sent in response to Mr Jabbar's request for employees to work overtime and was as follows: "No, not interested. Give it to your cronies.".

[42]   Mr Brown advised the Appellant that his shift was going to change to 11.00am to 7.00pm. The Appellant stated that this would interfere with his family responsibilities, and then Mr Brown offered him the 6.00am to 2.00pm shift but the Appellant said this wouldn't suit him because he didn't like to rise early.

[43]    Having altered the shifts, the Regulator stated that the Appellant worked on the night shift with less efficiency. Mr Wright said that he had been advised by two other night shift employees that productivity on night shift had slowed. However, these two employees were not called to give evidence.

[44]   In my view, considering all the evidence productivity on the night appears to have waxed and waned and the nature of the work being performed on this shift could vary in terms of what type of work was required. One particular duty performed on this shift related to "house lots" which was considered more time consuming work than sandwich lots and at times more of that work i.e. sandwich lots, was performed on the night shift than on the day shift and vice versa.

[45]    CSR had the right to alter the Appellant's shift times for the reasons cited. It is clear that the Appellant believed this was a reprisal for his comments concerning the re- employment of Mr Stanfield. I have not accepted that assertion and view it as a perception held by the Appellant but one not factually based.

[46]    I am unable to draw the conclusion that this is a case of the employer behaving in an unreasonable manner towards the Appellant.

[47]   CSR was entitled to alter its shifts for workers. CSR made the point of extending the period of notice to be given to the Appellant so that he could make arrangements concerning his family responsibilities. The reality was that CSR does run a night shift and there was an expectation that workers may be required to work on a range

of shifts – hence the ability to do so, within the industrial instrument, provided the

required notice was given to an employee. CSR did respond to the Appellant's
complaint about not wanting to work on night-shift by offering him another shift.

The Appellant had refused that because he did not like commencing work early in the morning. In my view CSR was attempting to facilitate the Appellant's needs in a reasonable manner.

[48]   At the meeting of 21 May 2012, the Regulator stated that there had been no suggestion of disciplinary action being taken against the Appellant but, the point was made that if he wasn't happy at CSR he would be given a few weeks pay to seek another job.

[49]    It is not the case that CSR did not give appropriate notice to the Appellant regarding his shift change because it gave him the requisite 7 days notice (with a further 7 days in which to arrange his family responsibilities). As I understand the Appellant's submissions, it was more the case that CSR didn't discuss the matter with him before changing his shift. CSR wanted him to work on night-shift; he refused that request; CSR accepted that refusal by offering him a day shift and he refused that as well, stating that he was not prepared to start work early in the morning. In the circumstances of this case, I have not found it unreasonable that CSR changed the Appellant's shift.

[50]   I have accepted that the Appellant had made statements at the workplace to the effect that he would just stand around etc. That CSR believed that his performance would be better managed through a shift change is not an action of CSR which was unreasonable.

Conclusion

[51]   From a consideration of all the evidence in this matter, I find that management action has been reasonable and taken in a reasonable way.

[52]   Considering firstly the stressors nominated by the Appellant, it is my view that management action with regard to those matters was reasonable and taken in a reasonable way. In terms of the broader issues raised by the Regulator in defending its decision, those matters have not affected the outcome reached.

[53]    The Appellant was upset around a number of issues at CSR – i.e. docking of his pay,

a shift change and assertions of his deteriorating work performance and the meeting

of May 2012 – all matters which in my view, during this latter period of his

employment contributed to his injury. In considering all of that, however, I am unable to find that the Appellant's injury was caused by unreasonable management action taken in an unreasonable way. Much of what occurred was a consequence of the Appellant's perception of reasonable management action being taken against him.

[54]    The issues raised by the Regulator, to which prior reference has been made at point 18 related to safety issues at work and being required to sign a safety induction document. Given the decision I have made in this matter, it is not necessary to pursue other matters raised by the Regulator as, in my consideration of the Appellant's claim which rely upon the nominated stressors, I have found that the Appellant's application must fail.

[55]   I have determined that:

	You did sustain a person injury,
	The personal injury arose out of the course of your employment,
	The employment was a significant contributing factor to the injury, and that
	The injury arose out of reasonable management action taken in a reasonable way by your employer in connection with your employment.

[56]    Consequently, I have determined that the injury arose out of reasonable management action taken in a reasonable way by the employer in connection with your employment.

[57]    The provisions of s 32(5) of the Act operate to exclude the injury from the definition of "injury" within s 32(1) of the Act.

[58]    The appeal is dismissed and the decision of the Regulator is confirmed.

[59]    The Appellant is to pay the Respondent's costs in this matter

[60] I order accordingly.