Weiss v Workers' Compensation Regulator - [2020] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Weiss v Workers' Compensation Regulator [2020] QIRC 111
PARTIES:	Weiss, Nathan (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2018/195
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	4 August 2020
HEARING DATES:	21 – 24 October 2019 7 February 2020 (Respondent's Submissions) 5 March 2020 (Appellant's Submissions) 30 March 2020 (Respondent's Reply Submissions)
HEARD AT:	Caloundra Magistrates Court
MEMBER:	Knight IC
ORDERS:	1. The appeal is dismissed. 2. The decision of the Respondent dated 3 October 2018 is affirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological or psychiatric injury – psychological injury arising out of employment – where appellant claims meeting with manager led to decompensation – whether employment was the major significant contributing factor to the onset of anxiety and depression – whether injury is excluded by virtue of s 32(5) of the Act – appeal dismissed.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003
CASES: APPEARANCES:	Blackwood v Mana [2014] ICQ 027 Davis v Blackwood [2014] ICQ 009 Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42 Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99 Vensa Misevski v Q-COMP (C/2009/29) Newman v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 182 Pouesi AND Q-COMP (C/2013/4) Ramsay v Watson (1961) 108 CLR 643 Rucker v Blackwood [2014] ICQ 028 WorkCover Queensland v Buchanan [2000] QIC 255 Wicks v Workers' Compensation Regulator [2018] QIRC 63 Mr N Weiss, representing himself Mr S Gray, Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Mr Nathan Weiss has appealed to the Commission against a decision of the Workers' Compensation Regulator to reject his claim for compensation for a psychiatric injury.
By way of background, he was working as a venue manager for Australian Leisure and Hospitality ("ALH") at the Villa Noosa Hotel when he was requested to attend a 'catch-up' with his regional operations manager, Mr Dan Drane, at around 9.00am on 25 June 2018.
Mr Weiss maintains he was ambushed during the meeting when Mr Drane unfairly accused him of 'stealing time' in circumstances where he was of the view Mr Weiss had taken two 'time off in lieu' ("TOIL") days, without firstly obtaining approval.
In the same meeting, Mr Weiss submits Mr Drane unreasonably raised concerns about his performance and that those issues had not previously been raised with him. Approximately five hours after the conclusion of the meeting, Mr Weiss was emailed correspondence requesting his attendance at a formal meeting to address concerns around alleged misconduct and performance issues.
Mr Weiss claims the hostile way he was treated, in combination with the unreasonable manner in which Mr Drane raised concerns about his performance and conduct during the meeting, had a such profound impact on his mental health that he visited his GP early the following day whereupon he was diagnosed with anxiety and, later, depression.

Central to Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QIRC 111
Decision Date: 4 August 2020

CaseChat Overview and Summary

Weiss v Workers' Compensation Regulator involved an appeal by the appellant, Mr Weiss, against a decision of the Workers' Compensation Regulator. Mr Weiss sought compensation for a psychological injury he claimed arose out of his employment, specifically citing a meeting with his manager, Mr Drane, which led to a decompensation of his pre-existing anxiety and depression. The primary legal issues the court had to decide were whether Mr Weiss' employment was the major significant contributing factor to the onset of his anxiety and depression, and if the injury was excluded by section 32(5) of the Workers Compensation Act 1987 (Qld).

The court examined the roles and responsibilities of both Mr Weiss and Mr Drane, as well as the accepted policies and practices of Australian Leisure & Hospitality Group (ALH) regarding leave and performance feedback. It was necessary to assess whether Mr Drane's actions during their meeting on 25 June 2018 were reasonable and if the performance matters raised during that meeting had been previously discussed with Mr Weiss. The court also considered whether Mr Weiss' application for his time off in lieu (TOIL) adhered to the accepted ALH policies and practices. Ultimately, the court concluded that Mr Weiss' psychological injury did not arise out of his employment but was rather a result of pre-existing conditions exacerbated by work-related stress.

The appeal was dismissed, and the decision of the Respondent dated 3 October 2018 was affirmed. The appellant, Mr Weiss, was ordered to pay the Respondent's costs of and incidental to this appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Respondent dated 3 October 2018 is affirmed.

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

Background

Background to the litigation

In relation to the other witnesses, I have commented below on their credibility where necessary and relevant. Background and events prior to 25 June 2018 meeting As best I understand, part of Mr Weiss' argument in this appeal is that Mr Drane had previously condoned processes that he or his assistant managers had followed when applying for or accessing accrued leave or TOIL; therefore, Mr Drane's response to the TOIL incident during their meeting on 25 June 2018 was disproportionate and unreasonable. Separately, Mr Weiss asserts the performance matters raised by Mr Drane during their catch-up had not previously been discussed with him. He maintains this resulted in considerable distress for him in circumstances where he considered both he and the Villa Noosa Hotel were performing well. Mr Weiss denies being told he would be required to participate in a PIP; or that Mr Drane mentioned the plan during their performance discussions. Given Mr Weiss' assertions and their relevance to the question of whether Mr Drane's actions on the morning of 25 June 2018 were reasonable, it is therefore also necessary to consider:(a) the respective roles and responsibilities held by both Mr Weiss and Mr Drane;(b) the accepted ALH policies and practices associated with the taking of leave and approval of TOIL, along with Mr Weiss' understanding of the practices;(c) the nature and content of a 2018 performance feedback meeting and any other interaction between Mr Drane and Mr Weiss related to his performance in late May 2018;(d) the steps taken to communicate and implement a PIP for Mr Weiss following the May 2018 performance feedback meeting; (e) whether Mr Weiss applied for his TOIL on the weekend of 22 June 2018, in accordance with the accepted ALH policies and practices;(f) when did Mr Drane become aware Mr Weiss had taken time off without approval; and(g) what occurred in the meeting between Mr Weiss and Mr Drane on the morning of 25 June 2018? Throughout the issues listed below I have considered the evidence and made findings of fact where relevant.(a)What were the roles and responsibilities of Mr Weiss and Mr Drane at the relevant time? Mr Weiss commenced his employment as a venue manager with ALH in February 2015 at the Villa Noosa Hotel, which is located on the Sunshine Coast. As best I understand, the Villa Noosa Hotel is a flagship venue in the ALH portfolio. Although he was responsible for the overall operation of the Villa Noosa Hotel as the venue manager, Mr Weiss told the Commission he structured his management team so that they were responsible for individual areas with the venue. By way of example, he explained how he established a system where a single manager would generally be responsible for TimeTEQ and payroll related issues, such as uploading rosters and leave approvals. Other managers were responsible for areas such as accommodation or food. Mr Weiss told the Commission he undertook a lot of his work in a nook located in the sports bar of the hotel, where he would set up his laptop. He explained he generally took Thursday and Sunday as his rostered days off.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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