Wilson Parking Australia (1992) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) and Eddy
[2014] QIRC 144
•10 September 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Wilson Parking Australia (1992) Pty Ltd v Simon | |||
| Blackwood (Workers' Compensation Regulator) | ||||
| and Eddy [2014] QIRC 144 | ||||
| PARTIES: | Wilson Parking Australia (1992) Pty Ltd | |||
| (Appellant) | ||||
| v | ||||
| Simon Blackwood (Workers' Compensation Regulator) | ||||
| (First Respondent) | ||||
| And | ||||
| Eddy, Daniel | ||||
| (Second Respondent) | ||||
| CASE NO: | WC/2012/456 | |||
| PROCEEDING: | Appeal against a decision of the Regulator | |||
| DELIVERED ON: | 10 September 2014 | |||
| HEARING DATE: | 10 September 2013 | |||
| MEMBER: | Industrial Commissioner Black | |||
| ORDERS - : | 1. The Appeal is dismissed; | |||
| ||||
| CATCHWORDS: | WORKERS' COMPENSATION - Appeal against | |||
| decision – psychological injury - whether injury arose | ||||
| out of reasonable management action taken in a reasonable way. | ||||
| CASES: | Workers' Compensation Act 2003 s550 Exide Australia Pty Ltd and WorkCover Queensland | |||
| ||||
| < | ||||
| APPEARANCES: | Mr. J. Wiltshire of Counsel, instructed by Jensen McConaghy Solicitors, for the Appellant. Mr. S. McLeod of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the First Respondent. | |||
| Ms. J. Sorbello of Counsel, instructed by Murphy | ||||
| Schmidt Solicitors, for the Second Respondent. | ||||
| Decision |
Introduction
[1] This is an appeal by Wilson Parking Australia (1992) Pty Ltd ("the appellant"), against a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to accept Daniel Eddy's claim for compensation dated 22 May 2012. Mr Eddy ("Eddy") is the second respondent to this appeal.
[2] Eddy was employed as a Security Officer by the appellant. He was stationed at the Scherger Immigration Detention Centre located near Weipa on Cape York Peninsula. The detention centre was the responsibility of the Commonwealth Department of Immigration and Citizenship (DIAC). Serco was the company contracted by DIAC to operate the detention centre. The appellant company was subcontracted by Serco to provide perimeter and entry and egress security at the centre. The work included the staffing of the entry and exit point used by staff and contractors coming into and out of the centre. Eddy was abused and threatened when he directed an employee of Serco to submit to a bag search on 19 April 2012.
[3] Eddy lodged an application for workers' compensation with WorkCover Queensland on 22 May 2012, alleging that he had sustained a psychological and/or psychiatric injury while undertaking his duties on 19 April 2012. WorkCover rejected Eddy's application for compensation on 9 July 2012. On 11 October 2012, Eddy sought a review of the Insurer's decision with the regulator. On 14 November 2012, the regulator overturned WorkCover's decision and determined that Eddy's application for compensation was one for acceptance. The appellant now appeals the Regulator's decision pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
[4] In the proceedings the appellant conceded that Eddy was a "worker" within the meaning of the Act. It also conceded that Eddy sustained a psychological injury which arose in the course of employment and in respect of which employment was a significant contributing factor. The appellant submitted however that the injury arose out of or in the course of reasonable management action taken in a reasonable way or that the injury arose out of or in the course of Eddy's expectation or perception of reasonable management action taken against him by his employer.
Issue for Determination
[5] The issue for determination in this appeal is whether the psychological injury sustained by the Second Respondent, Eddy, should be excluded from s 32(1) of the Act by virtue of s 32(5) of the Act. Section 32 of 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 workers' application for compensation.".
Nature of Appeal
[6] The Appeal to the Commission is by way of a hearing de novo. The standard of proof upon which an Appeal of this type must be determined is that of "on the balance of probabilities".
Background Documents
[7] The regulator tendered the following background documents [Exhibit 1]:
WorkCover Queensland Application for Compensation dated
22 May 2012; WorkCover Queensland Reasons for Decision dated 9 July 2012; Q-COMP Application for Claim Review dated 11 October 2012; Q-COMP Review Unit Reasons for Decision dated 14 November 2012.
Chronology
[8] A chronology of events relevant to Eddy’s injury is set out in the table below:
Date Event Thursday 19 April 2012 to Eddy rostered to work at Scherger Wednesday 3 May 2012 Thursday 19 April 2012 Confrontation between Eddy and Lotowa Friday 20 April to Thursday Eddy continues to work as normal 3 May 2012 Saturday 21 April 2012 Meeting between Eddy, Pick and Ellis Sunday 22 April 2012 Mediation meeting Friday 4 May 2012 Commencement of scheduled leave period Friday 9 May 2012 Travel from Brisbane to Weipa Thursday 10 May 2012 Start of new roster period Thursday 10 May 2012 Eddy attends at the Weipa Hospital Evidence
[9] During the course of the proceedings, evidence was provided by three witnesses. The witnesses for the Appellant were as follows:
Geoffrey Pick (Security Supervisor); and Shaun Hogan (State Security Manager).
The First Respondent did not call witness evidence, while Daniel Eddy (worker) gave evidence for the Second Respondent.
Workplace Events
[10] The injury arose out of an incident in the workplace on Friday 19 April 2012 which involved a confrontation between Eddy and a Serco employee, Bill Lotowa. The incident occurred while Eddy and other employees of the appellant were conducting routine security checks on persons entering the centre. Five contemporaneous incident reports are in the evidence as Exhibits 3 through to 7, the more relevant being the statements provided by Eddy, and security supervisors Geoff Pick and Daniel Braybrooke. Most of the details of the confrontation are not in dispute.
[11] On entering the security check point Lotowa was selected by Eddy for a random bag search. Lotowa accused Eddy of picking on him and responded in an abusive and aggressive manner, refused the bag search and attempted to enter the centre. Eddy asked Braybrooke to intercept Lotowa and prevent him from entering the centre while Eddy made contact with Serco and asked for assistance. Having contacted Serco, Eddy then proceeded to assist Braybrooke who was trying to contain the situation. At this point Lotowa yelled at Eddy, called him a "fucking white cunt", and threw a bag at him, hitting him on the chest. Lotowa then approached Eddy and poked him just below his eye. According to Eddy, Lotowa then threatened him by
saying that "I’m going to put you down". When the bag search was completed it
revealed that a pair of metal scissors, which was a prohibited item, were sought to be
carried into the centre by Lotowa.[12] The appellant accepted that Lotowa's actions in refusing a bag search and attempting to bring prohibited items into the centre were highly inappropriate. It was also highly inappropriate for Lotowa to verbally abuse Eddy with threatening and obscene language, to throw his kit bag at Eddy and to poke Eddy in the face.
[13] Subsequent to the 19 April 2012 incident, Sondra McDonald, an employee of Serco, informed both Pick and Eddy that she had been told that Lotowa had made a statement to the effect that if he were to encounter Eddy outside the centre, he would inflict physical harm on him. Pick agreed in his evidence that McDonald was concerned by the threat and took it seriously. Pick agreed that no action was taken
by him to investigate the threat. Eddy said that he had raised Lotowa’s threats in a
meeting with Pick and Tony Ellis, the operations and security manager for Serco, on 21 April 2012. Eddy said that when he asked Ellis about the threats, Ellis denied any knowledge of them. Eddy said that when Ellis asked him what he (Eddy) wanted done, he replied by saying that "I'm a reasonable man, but I want him sacked".
[14] Eddy said that after the meeting he told Pick that he was thinking of reporting
Lotowa’s conduct to the police. This was not disputed by Pick who said that he
reported the prospect of police involvement to Shaun Hogan, the State Security Manager, who was based in Brisbane. Hogan confirmed that Pick had passed on the information and he accepted that he informed Pick in response that if police were involved Serco would not be happy to have Eddy on the site. Eddy said that Pick told him of Hogan's response in the following terms (T1-80):
"He said that Shaun Hogan said that – that I would not be able to work at
Scherger because I'd involve the police, and he didn’t have anywhere for me to
work down there so I'd be jobless."
[15] Further to this it appeared that Ellis had also raised the prospect of Eddy being removed from site at either the 21 or 22 April meeting. In his evidence Pick agreed that Ellis told Eddy that "it would be sad to see you leave over this". There was no unanimous view about what Ellis meant by this statement, but it may reflect an approach by Serco that if necessary it would resolve interpersonal conflict or matters attracting police attention by directing the sub-contractor to remove a worker from the project. Eddy's evidence about the matter was recorded at T1-80:
"... And I said – and I looked at Tony, and I said – I said, “What did you say?”
He said, “It’s a shame that you're going, you know, you're going to have to
leave.” And I said to Tony, “I’m not leaving anywhere.” And he said, “With
that incident with Bill. And, you know - and, you know, I really don’t want to see you go, but Shaun Hogan, you know, probably, you know – you probably have to leave Scherger.” And that’s – that’s when my heart just dropped, and I
thought, “Wow, this is madness."
[16] Pick said that when he offered to do something about the threat passed on by McDonald, Eddy declined the offer and said that he did not want anything done in relation to the threats. It was Pick's view that, at the time, neither he nor Eddy took the threat seriously. The difficulty with Pick's evidence is the inconsistency which arises from it. On the one hand he accepted that Eddy considered making a complaint to police which he took sufficiently seriously to notify Hogan, and yet on the other hand he asserted that Eddy was not concerned by Lotowa's threat and wanted nothing done about it. Pick's evidence under cross-examination about his response to the 19 April incident and Lotowa's threat is recorded at T1-30:
"But you were aware of a violent - - -?---Yes.
- - - aggressive event out of character?---Yes.
You were aware of threats being made - - -?---Yes.
- - - in that event. You were aware that an employee of Serco had contacted
you because of concerns, and passed on the threats – other threats that have
been made?---Mmm.
And you formed the impression that that employee had taken the threat
seriously?---She reported it to me, as I said. So, I asked Dan did he want me to
take it further, and he said no.
And despite being aware that at least the [indistinct] employee thought it wassufficient to report to you, and the aggressive altercation, initially – you didn’t
take any further action to investigate the threats, did you?---No.
No. No procedure put in place to identify whether the threats were genuine;
whether there was any veracity to the complaints?---I didn’t take it any further,
as I said, based on Dan’s reaction to it – response to it.
Do you consider that reasonable, against a background where other people
have been taking the complaints more seriously?---Well, it’s only – it was
from Sondra McDonald, who I have no reason not to believe, and that was the
only person we had heard the statement from.
Yes. But there was also the initial altercation; the [indistinct] altercation?---
Yes. Yes."
[17] It was Hogan's evidence at T1-50 that he was not aware of the threat passed on by McDonald until well after the event, and not until July 2012. While not expressed with total clarity, Pick's evidence at T1-30 was to the effect that when he rang Hogan to tell him that Eddy might notify the police, he intimated that Eddy's complaint would be about the assault on 19 April and not the threat made after that date. I do not consider this evidence, however, to be significant because while Hogan may not have been aware that Lotowa had threatened Eddy after 19 April, Pick was aware of this development and he could have passed this information on to Hogan. His failure to do so does not assist the appellant's case.
[18] Ellis was sufficiently concerned about the nature and extent of the fall-out from the 19 April 2012 incident that he invited the relevant parties to participate in a mediation session on 22 April 2012. Both Eddy and Lotowa attended the meeting as well as Pick and Ellis. Ellis conducted the meeting and Pick's role was to represent the appellant and support Eddy. Pick said that Ellis informed the participants that Lotowa had been issued with a verbal warning by Serco in relation to the incident on 19 April 2012 and that Lotowa would be given a written warning if there were any future incidents. Pick did not express any opinion on the appropriateness of the punishment. The meeting did not appear to be particularly productive and lasted less than 15 minutes. On Pick's account, Ellis needed to direct Lotowa to apologise to Eddy. He said that Eddy was emotional and visibly upset during the meeting and that Eddy was clearly upset when he left the room at the end of the meeting. He said that Eddy was very angry at the outcome of the meeting and that immediately after the meeting it took some time for Eddy to calm down and compose himself in order for him to resume work. It was Pick's view that Eddy was angry because he considered Lotowa's punishment to be insufficient and that Eddy thought that Lotowa should have been sacked.
[19] It was Pick's evidence that either he or Eddy raised the threats that Lotowa was alleged to have made at the mediation meeting. Pick suggested that he asked Ellis for a response by saying (T1-16) "what about the situation where Bill had threatened Dan"? Pick said that Ellis indicated that he had spoken to Bill and that Bill had been asked to apologise to Dan. Eddy said that Ellis was informed of Lotowa's threats during the 21 April 2012 meeting. While the evidence supports a finding that Ellis
was informed about a threat made by Lotowa, it does not say much about Ellis’s
response.
[20] Hogan said that he spoke to both Ellis and Pick after the mediation meeting. The consistent feedback was that Eddy and Lotowa were laughing and joking towards the end of the mediation. He considered that the outcome of the mediation was positive and that no further action was required in relation to the 19 April incident. It is difficult to reconcile this evidence with the evidence of Pick and Eddy about Eddy's demeanour and state of mind during and immediately after the meeting. It suggests that Hogan was not well informed or that he was not an entirely reliable witness. Hogan agreed that he did not speak to Eddy during the relevant period (19 April to 10 May). Hogan also said at T1-49 that if the mediation process had not brought the matter to a successful conclusion he would have considered altering Eddy's roster or transferring Eddy to a different location.
[21] Eddy worked his rostered shifts from 19 April 2012 to 3 May 2012. During this period, according to Pick, Eddy conducted himself normally and Pick did not notice
anything abnormal about Eddy’s work behaviour. Pick said that it would be the
norm for him to speak to Eddy several times throughout each shift at work. Pick said that Eddy did not express any concern about his safety or about Lotowa's threats, nor did Eddy indicate that he was feeling stressed or anxious. Pick considered that the issue had been resolved. Eddy's evidence was different. He said that he told Pick on a daily basis that he was worried about the threats and was having difficulty sleeping. Eddy also said that he had a further discussion with Sandra McDonald in which she confirmed or reinforced the reality of the threat posed by Lotowa. Eddy also said that he did not recall seeing Lotowa in the work environment after the mediation.
[22] Eddy performed his work at the detention centre in accordance with a roster that provided for two week at work and one week on leave. Eddy said that after his week's leave in early May 2012 he returned to Weipa and commenced work on 10 May 2012. Soon after he started his shift and after conducting a bag inspection with a Department of Immigration employee he found that he could no longer cope. He then radioed Pick and asked that he attend his post and relieve him because he was not feeling right and he needed to go to the hospital. Pick confirmed that Eddy had asked to leave work and go to the hospital. He said that he granted the request but did not ask Eddy to give a reason or explain the nature of his illness. Eddy then attended at Weipa Hospital where he was provided with a medical certificate providing for two weeks off work. He gave the medical certificate to Pick later that day and, on Pick's evidence, said that he was commencing two weeks stress leave. The next morning Eddy left Weipa and travelled to Brisbane.
[23] Pick did not provide a convincing explanation for why he did not show greater interest in Eddy's illness. This may have been because as Pick said that it was not uncommon in the tropical environment for workers to seek medical attention for a range of matters. However it may also have been because, as Eddy asserted in his evidence, that he had regularly made Pick aware of his anxiety and had raised it with Pick while they were both on leave in Brisbane in early May and on 9 May 2012 when they both travelled back to Weipa.
[24] The notes of Eddy's attendance at the Weipa Hospital refer on the Triage Assessment Form to an incident at work where Eddy was physically and verbally abused. Further it was recorded that Eddy was fearful to go to work and refused to go to the police because of a fear of repercussion. The doctor's notes refer to interpersonal work conflict and abuse at the hand of another staff member. The entry also stated that Eddy expressed concern about his physical safety and that Eddy said that he was receiving minimal support from his employer. Further it was recorded that Eddy was planning on returning to Brisbane to pursue other employment avenues.
Management Action
[25] The determination to be made in respect to the management action taken by the appellant is focussed on the adequacy of the response by the appellant to the incident on 19 April 2012 and to the subsequent threat made against Eddy. A determination about the adequacy of the response extends to a consideration of the appellant's
response to Lowota’s threatening behaviour; the response to Eddy's distress at the
outcome of the mediation exercise including the disciplinary action taken against Lotowa; the response to Serco's foreshadowed removal of Eddy from the project; and the response to Eddy's attendance at hospital on 10 May 2012.
[26] The determination about reasonable management action is to be made having regard to all the facts and circumstances of the case. In this matter relevant considerations include that an inherent aspect of Eddy's work was to deal with situations which could involve a risk of physical confrontation and harm; that the appellant's response was influenced by the contractual relationship between it and the principal contractor, Serco; that the perpetrator of the unacceptable conduct and the threat against Eddy was an employee of Serco; and that Eddy was living away from home while working in an isolated location.
[27] The appellant's submissions addressed the management action which may have caused Eddy's injury. The submissions considered the decision of Serco not to
impose any significant punishment on Lotowa; Eddy’s response to this decision;
Pick's response to threats made by Lotowa against Eddy; and Pick's limited participation in the mediation.
| [28] |
It was submitted that Serco's failure to sack Lotowa or impose a serious penalty was particularly upset and angry at this development. However, according to the appellant, Eddy's anger was misplaced because in its view Serco did complete an effective counselling process and warned Lotowa in respect to future behaviour. The appellant also argued that Pick's response to Lotowa's threat against Eddy was reasonable having regard to the following facts:
(a) the reported threat was only second-hand and not made to Eddy's face; (b)
Eddy did not express concern about it, appear stressed by it or request that any action should be taken in respect of it;
(c)
Lotowa was a Serco employee in a relatively small community where people knew each other and he would have known he could not have committed an assault on another worker and got away with it; and
(d) there was only a matter of a few days between the events on 19 April concerning the relationship between Eddy and Lotowa which culminated in the mediation, at which that threat was discussed.
[29] The appellant rejected criticism of Pick's limited participated in the mediation given that Ellis convened the mediation, took responsibility for its conduct, and progressed the mediation in a way which resulted in expected outcomes being achieved. In this regard it was submitted that Lotowa's threats were discussed and Lotowa was
directed to apologise to Eddy. Further, no criticism was directed at Eddy and he (or expectations, it was neither appropriate nor necessary for Pick to try to involve himself in Serco's disciplinary process. Finally it was pointed out that Pick was an operations supervisor and not a HR professional who may have had considerable experience in the conduct of mediations or dispute resolution.
[30] The appellant argued that the relevant management action involved reasonable management action taken in a reasonable way. It submitted that the employer investigated the 19 April incident through its standard procedure of taking incident reports from its staff. Pick ensured that Hogan was informed following which Hogan then liaised with Ellis. In these communications Hogan established Ellis' understanding of events; expressed his disappointment at the behaviour of the Serco employee; and established what action Serco was taking in respect of the incident.
[31] In summary, it was submitted that, given the following outcomes, the appellant was entitled to treat the matter as having been appropriated dealt with and concluded:
(a) the incident had been investigated; (b) the employer had expressed its disappointment to Serco; (c) Serco had undertaken a disciplinary procedure and the instigator had been given a warning as to his future behaviour; (d) a mediation had taken placed between the relevant workers at which the need to act professionally and to move forward had been stressed, the issue of threats had been raised, and an apology had been proffered; (e) While Eddy was angry about the disciplinary outcome, that was a circumstance over which the employer had no control and could reasonably do nothing other than to reassure Eddy as to his own conduct; (f) Eddy had continued with his duties in an uninterrupted manner and was exhibiting no signs of stress or anxiety.
[32] The second respondent submitted however that the action taken by the appellant was not reasonable and advanced the following grounds to substantiate its position:
(a)
no action was taken to investigate the veracity of the threats made by Lotowa;
(b)
the appellant's involvement in each of the meetings involving Ellis did not in any way extend to seeking any sort of assurance or assistance from Serco which might have rectified the matters in concern;
(c)
despite being aware of Eddy's real concern of danger to himself, the appellant discouraged Eddy reporting his concerns to the police by threat of a withdrawal of work;
(d)
no support or assurance was provided to Eddy as to his safety nor action taken to ensure his safety;
(e) when covert threats were made about Eddy's security of employment as his position was secure.
[33] I accept that the applicant has raised a series of legitimate propositions in defence of its argument that its management action was reasonable and reasonably taken. On the evidence however I have concluded that the appellant should have done more, or should have handled matters differently, in response to the circumstances associated with Eddy's decompensation.
[34] The appellant’s response to the prospect that Eddy may be removed from site was
inadequate. It was self-evident that this prospect may have been the cause of significant concern. Despite the fact that the appellant knew that such an outcome may eventuate they did not take steps to reassure Eddy that his employment was secure or discuss with him options for employment in the event that he may have been removed from the project. It was Hogan's evidence at T1-49 that if the mediation process had not brought the matter to a successful conclusion he would have considered altering Eddy's roster or transferring Eddy to a different location. If Hogan had a more accurate understanding of the outcome of the mediation, which in my view he should have had, it would have been appropriate to canvass these options with Eddy immediately after Serco had foreshadowed his removal from the project.
[35] A reasonable expectation would be that the appellant could have, and should have, done more to address Lotowa's threat. While Pick maintained that Eddy was not concerned and did not want anything done, his view should have been revised when he became aware that Eddy flagged reporting the matter to the police. Given that the threat followed the confrontation on 19 April and was passed on by a Serco employee who took it seriously, Pick should have taken steps to address the matter irrespective of whether the circumstances were a cause of anxiety to Eddy or not. I accept that any course of action must necessarily have involved Serco however the evidence around how the appellant passed the threats on to Serco and the level of seriousness attached to the communication is not convincing. Nor does the evidence disclose that Serco addressed the matter with Lotowa in any significant way or at all. Lotowa should have been informed in the mediation by both Pick and Ellis that his behaviour in threatening another worker on the project was completely unacceptable and both Pick and Ellis should have requested that he withdraw the threats and give assurances about his behaviour and attitude to Eddy going forward. This is the necessary discussion about correcting inappropriate behaviour which is to be distinguished from the decision to be taken by Serco about the disciplinary action and the disciplinary penalty.
[36] Eddy was entitled to be concerned by the light punishment meted out to Lotowa. It was not unreasonable for him to imply from what he was told that Lotowa might consider himself, although mistakenly, vindicated by reference to the penalty imposed on him by Serco. Also Eddy might reasonably conclude that the penalty
imposed would not diminish the prospect of Lotowa’s threat materialising. Further
Eddy might understandably be concerned about future interactions between himself
and Lotowa when Lotowa was subject to Eddy’s security procedures when entering
or leaving the site. While the disciplinary decision and the associated management action was a matter for Serco, the appellant had to deal with the consequences of that decision. One of those consequences was to consider the impact on Eddy and to determine whether any consequential management action was necessary or appropriate. Hogan acknowledged this when he said an option that he may have considered was to change Eddy's roster (presumably to avoid contact with Lotowa).
[37] Finally the appellant may have been able to do more to prevent Eddy's descent into depression. Perhaps when Eddy told Pick he was struggling to cope and needed to go to hospital, he was articulating a cry for help. A more positive and constructive
response involving some enquiry about the cause of Eddy’s condition and a
consequent offer to address the matters of concern to him on a timely basis, may have served a preventative purpose or have contributed to a diminishing of the risk to Eddy's health.
[38] The appellant also submitted that Eddy's injury may have arisen out of his
expectation or perception of reasonable management action being taken against him.
It was the appellant's submission that Eddy had a perception that management failed
to take appropriate action and failed to support him. Further it was put that this
perception had the greatest impact on Eddy and that his injury can be said to have
arisen out of that management action. President Hall addressed the application of
1
section 32(5)(b) in Exide Australia Pty Ltd and WorkCover Queensland (page 95): "In the alternative, it was contended that the worker’s condition was
withdrawn from the definition of “injury” by s. 34(5)(b). It seems to me that it
cannot be over-emphasised that whereas para (a) of sub s. (5) refers to
reasonable management action taken in a reasonable way “by the employer”,
para (b) sub s. (5) refers to reasonable management action “being taken against the worker”. Here, there is no evidence that any action, whether characterised
as reasonable management action or not, was being taken against the worker
or against any group of which the worker was a member. Furthermore, the
circumstance that para (b) refers to “reasonable management action” rather
than “management action” leads inexorably to the conclusion that para (b) is
intended to operate only where there is actual management action and has no
role where the management action lies all in the perception of the worker."
[39] In this matter the difficulty lies in identifying the actual management action in question which was taken against Eddy. While it could be said that the failure to take more severe disciplinary action against Lotowa may have been adverse to Eddy's interests, it does not amount to reasonable management action being taken against Eddy. Alternatively while the possibility that the appellant may be directed by Serco to remove Eddy from the project does amount to management action being taken against Eddy, I have already determined that elements of the appellant's treatment of this issue were not reasonable. Having regard to the submissions of the appellant and the evidence adduced in the proceedings I am not persuaded to conclude that Eddy's injury arose out of an expectation or perception of reasonable management action being taken against him.
Decision
[40] I conclude that Eddy’s injury did not arise out of, or in the course of, reasonable
management action taken in a reasonable way by the appellant. I accept that the test
in these matters is not one of perfection and that the appellant’s difficulty or
restrictions in responding to the relevant events are matters for consideration.
However in the particular respects identified, the appellant’s conduct has fallen short
of what can be considered reasonable.
[41] The appeal is dismissed and I reserve the question of costs.
[42] I order accordingly.
| 1Exide Australia Pty Ltd and WorkCover Queensland | (C/2002/25) - < |
0
0
0