Wright v the Workers' Compensation Regulator
[2015] QIRC 189
•5 November 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wright v the Workers' Compensation Regulator [2015] QIRC 189 |
PARTIES: OTHER: | Wright, Paul Joseph v The Workers' Compensation Regulator BHP Billiton Mitsui Coal Pty Limited |
CASE NO: | WC/2015/2 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 5 November 2015 |
HEARING DATES: | 15 - 17 June 2015 |
| HEARD AT: | Mackay |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. The Appellant is to pay the Respondent's cost of, and incidental to, the appeal in an amount to be agreed between the parties or, failing agreement, on application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINT DECISION – whether the injury arose out of, or in the course of, employment - reasonable management action - perception of reasonable management action - conflict with co-worker - medical evidence - paranoid schizophrenia |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr P. Wright, in person, Mr S.P. Gray, of Counsel, directly instructed by Ms R. Jamieson, Workers' Compensation Regulator, for the Respondent. Mr G.C. O'Driscroll, of Counsel, instructed by Mr G. Traves, HWL Ebsworth Lawyers, for the Employer. |
Reasons for Decision
Mr Paul Wright has appealed the decision of the Workers' Compensation Regulator rejecting his application for workers' compensation for a psychiatric or psychological injury said to have been sustained in the course of his employment as a miner with BHP Billiton Mitsui Coal Pty Limited (BHP).
At the relevant time, the appellant was employed by BHP as an operator and he was assigned to the A crew. He asserts the injury occurred at BHP's Poitrel Mine on or about Saturday 29 March 2014.
It is not contested that Mr Wright was a "worker" for the purpose of the Workers' Compensation and Rehabilitation Act 2003. In this appeal it is necessary to determine whether Mr Wright has suffered an injury within the meaning of s 32 of the Act. The regulator and the employer appear to have accepted that he has suffered a "personal injury", and this conclusion is supported by the medical evidence.
Section 32(1) of the Act defines an injury as being a personal injury arising out of, or in the course of, employment if, for a psychiatric or psychological disorder, the employment is the major contributing factor to the injury.
Section 32(3) provides that "injury" includes an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation.
By operation of s 32(5) a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment or the worker's expectation or perception of reasonable management action being taken against the worker is not an injury for the purposes of the Act.
The regulator accepts that Mr Wright's personal injury may have developed during the term of his employment with BHP, and in those circumstances, it is arguable that his personal injury has arisen in the course of his employment.
BHP submits that the appellant's case "...should be dismissed in that employment is not the major significant contributing factor to the injury, taking into account the balance of the available medical evidence … and taking into account the raft of other stressors, particularly his Alcohol Abuse Disorder, personal issues and stressors outside of work."
It seems that neither the regulator nor BHP disputes that Mr Wright's personal injury arose during the course of his employment. In my opinion the facts support a conclusion that it did.
Accordingly, the issue for determination in this appeal is whether the employment is the major significant contributing factor to the injury. If the answer to that question is in the affirmative consideration must be given to whether Mr Wright's personal injury is nevertheless excluded from the definition of "injury" by operation of s 32(5) of the Act.
In accordance with a directions order the appellant filed a statement outlining the work events which he alleges caused his psychological/psychiatric injury, a statement of stressors. He filed an amended statement of stressors on 4 March 2015. Although there are 15 such stressors they can be grouped. The appellant was self-represented and his statement of stressors is in some respects difficult to understand. A copy of the statement as amended, dated 4 March 2015, is attached to these reasons.
The appellant's stressors may conveniently be condensed:
· bullying and harassment by work mates by making repeated comments relating to an incident ($5 dollar blow job) occurring offsite at a strip club (stressors and 1 and 2);
· harassment by two co-workers relating to their intimate relationship (stressor 13);
· Stressors 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14 are interrelated. The appellant appears to have regularly clashed with his co-worker, Ms Sharlene Cameron. Stressor five has been articulated as "Discrimination with regard to the bus seating arrangement and the ROD" (Record of Discussion). However it appears that it was not the bus seating arrangement per se, but rather:
i.the allegations by Ms Cameron of bullying and harassment regarding the appellant sitting in "her" seat on the bus,
ii.Ms Cameron's complaint about the appellant's failure, whilst driving a bus, to turn down the air conditioning,
iii.Ms Cameron's complaint about the appellant's "anti-bikies" comments
iv.the appellant's breach of confidentiality (by disclosing details of the dispute with Ms Cameron) and the subsequent investigations,
v.the handling of the appellant's allegations of discrimination and the alleged breach of his confidentiality by Ms Cameron in relation to the discussion.
that caused him distress, as he was of the view that the allegations were unreasonable given that he believed he had not done anything wrong.
· His being asked to sign a ROD resolving the dispute with Ms Cameron, in circumstances where the appellant considered the ROD did not accurately reflect what had been said and his being stood aside over allegedly unsubstantiated allegations that he had breached confidentially exacerbated his stress;
· harassment after he reported Ms Cameron speeding at the mine (stressor 8);
· Stressor 16 appears to be no more than a complaint that proper procedures were not followed because the appellant was not accompanied to the medical centre when he stated that he was too stressed to continue working.
Mr Wright suffers from paranoid schizophrenia. It is convenient to deal with the medical evidence at this time.
The medical evidence
Dr Amitava Sarkar, a consultant psychiatrist, was called by the appellant. In a letter dated 20 February 2015[1] he noted that the appellant has been his patient since 4 October 2014. He was being treated for a paranoid condition which he told the doctor started in October 2013 "around a work related dispute, when he got involved with two persons at work." Mr Wright also told the doctor about having to answer complaints of bullying and harassment in March 2014, after which he became very confused. He also told the doctor that he was forced to sign a document at work and was stood down. The doctor anticipated that his paranoia became accentuated.
[1] Ex A6.
The doctor noted that there is a family history of schizophrenia "in first degree relative"; Mr Wright's brother. Dr Sarkar had diagnosed the appellant with schizophreniform disorder, a precursor to schizophrenia.
In an earlier letter of 4 October 2014[2], to Mr Wright's referring doctor he noted that the appellant had increasing anxiety which escalated into frank paranoia since late 2013 when he got involved with a couple's relationship at work. That later he further deteriorated when pulled up by management for bullying/harassment claims against him, and still later when he was asked to sign a document which did not reflect the proceedings of the meeting. The doctor went on to state that the appellant had reported an additional stressor, being a court case relating to his plumbing job in April 2013.
[The evidence before me was that he had lost his plumber's licence and was eventually fined for practising as a plumber whilst unlicenced.]
[2] Ex A7.
During cross-examination the doctor accepted that manifestations of Mr Wright's paranoia began to appear in April 2014. He agreed that the manifestations were the external manifestations of the underlying psychiatric or psychotic conditions starting to come to the surface. The doctor opined that stress exacerbates the condition.
BHP has an employee assistance program conducted by Gryphon Psychology. On 30 March 2014 Mr Wright telephoned Gryphon seeking an urgent appointment. He spoke to a clinical psychologist, Dr Sanri Blom, via the emergency service on 8 April 2014 where he reported feeling distressed after having been stood down with full pay due to allegations of bullying and sexual harassment at work. Mr Wright explained that he was in trouble with work for breaching a confidentiality clause following a mediation meeting between himself and the female who made the bullying and sexual harassment claims. Mr Wright felt that he had been targeted at work and was convinced that people were setting him up. He was fearful of losing his job and had trouble sleeping and was ruminating about being treated unfairly by his employer. He also reported insomnia and that he was drinking excessively, often to the point of blacking out, as well as smoking heavily. He told Dr Blom that he often reads malicious intent into situations and that he sometimes had to check his suspicions with others at work to help form a more rational thought pattern.[3]
[3] Ex E8.
Dr Blom concluded that he was of the opinion that Mr Wright was suffering from an adjustment disorder with mixed anxiety and depression with mild co-morbid alcohol use disorder.
In his oral evidence the doctor added that during the telephone conversation of 8 April 2014 Mr Wright had mentioned that he was worried about his father and his mother and about their health as they were quite old and frail, that he had a brother with schizophrenia, that he had had to go to court in relation to a non-licensed plumbing job that he had undertaken and that he was struggling with his sleep. The doctor seemed surprised that the $5 dollar blow job incident had not been mentioned by Mr Wright at the time as being one of his stressors.[4]
[4] T3:4/30-45.
The regulator called Doctor Martin Nothling, a psychiatrist who had examined the appellant at the request of BHP. His report of 7 July 2014 was tendered and he also gave evidence orally. Dr Nothling had seen the appellant on 17 June 2014 at which time he interviewed him for more than three hours. The doctor took an extensive history from Mr Wright. He noted that there had been an alcohol breach on 6 June 2013.
Dr Nothling noted, from the history obtained from the appellant:
"Shortly after starting work at the Poitrel Mine for BHP, he had an alcohol breach on 25 November 2012, with a blood alcohol of 0.02. He had a written warning and he lost some pay.
In February 2013, he had been to a nightclub and, as a result, suffered a black eye and was thrown out of the nightclub. He stated he had drunk too much alcohol. He returned to work with a black eye, then fellow workers questioned whether he was gay or not. There were comments that he was a 'five dollar blow job'.
He joined the union early in April 2014, paying $700 per year then to the CFMEU. He stated there had been no union involvement for him in terms of any assistance from the union, except that the union had become involved in the unfair dismissal matter.
There had been a breach for alcohol after the State of Origin on 6 June 2013, when he recorded 0.007. Then he called in, unfit for duty, and the employer placed him on a SHAPE plan. He was tested for his blood alcohol every shift for over three months. He stated he was never actually signed off on the SHAPE program in the usual timeframe but then stated, finally, he was signed off on the SHAPE program.
Between October and December 2013, a male and female fellow workers were having an affair. The male worker, [Mr X], came to him for help, as the worker [Mr X] was having an affair with, [Ms Y], was threatening to tell [Mr X's] wife. The subject actually helped [Mr X] to block her mother calling [Mr X]. Then [Mr X] asked him to get [Ms Y] off his back. The subject sent [(Ms Y)] a mischievous comment on Facebook, which was a private message. However, [Ms Y] reported this on 5 May 2014.
A fellow worker, Sharlene Cameron, complained that he, the subject, was sitting on her seat on the bus. He made a comment to Sharlene that some of the bikies deserved what they got. Subsequently, he learned that her boyfriend may be a bikie. Sharlene complained that he had harassed her by sitting on her seat on the bus. She had asked him to turn the air-conditioning down when he was driving the bus, which he did when someone else also had asked him to turn it down. The other person had asked him more pleasantly than Sharlene did.
He stated he had heard comments about his sexuality for a year until he finally left the job.
He had missed the Court case on 3 April 2014, with regards to the unlicensed plumbing due to the stress he was under at work."
After reviewing and discussing a considerable amount of documentation with which he had been provided, including the report of Gryphon Psychology dated 11 June 2014 signed by Dr Sanri Blom and the report of the appellant's GP, Dr Manoheran, dated 30 April 2014, Dr Nothling opined:
"Mr Paul Wright presented to me as a 35 year-old truck driver, and previously a licenced plumber, who was suffering from chronic Alcohol Use Disorder (DSM 5TM), which had been in existence prior to his commencing his employment at BHP Billiton. He also presented with an Adjustment Disorder with mixed anxiety and depressed mood, which was now in partial remission as a result of treatment by his general practitioner with antidepressant medication and a treating psychologist.
Prior to commencing work at BHP, he was vulnerable to decompensation. He had been accused of practising as a licensed plumber when, in fact, he was not licensed, which was prior to when he commenced work at BHP. However, this had all culminated in recent Court proceedings, where he had been found guilty of the criminal matter of practising as a plumber without a current licence. This was an extremely stressful situation for him, as it involved total fines and Court costs of about $7000. He also had a resultant criminal record. He appealed this ruling, but was unsuccessful and the ruling stood.
The Substance Abuse with Alcohol pre-dated and continued during his time working for BHP and was significant in terms of his employment being terminated with BHP recently.
The Adjustment Disorder with mixed anxiety and depressed mood is in partial remission and would not be preventing him from returning to the workforce. He himself stated that he believed he was fit to return to the workforce.
However, he is continuing to drink alcohol at a level which is well above the recommended levels for safety.
At this stage, the prognosis with regards to the pre-existing Alcohol Use Disorder is guarded, unless he has appropriate treatment to withdraw him from the use of alcohol. His Alcohol Use Disorder is not attributable to work factors but was a pre-existing disorder. There are other factors involved in the development of the Adjustment Disorder with mixed anxiety and depressed mood.
He himself considers he is now fit to apply for work for which he is suited by training and experience. In terms of the Adjustment Disorder, he would be, in my opinion, fit to apply for work but would require to substantially reduce his alcohol consumption consistent with his Substance Abuse with Alcohol. He does have a past history of polysubstance abuse, as detailed in the body of the report. He clearly had a pre-existing vulnerability to psychiatric decompensation, given the pre-existing polysubstance abuse history with the described illegal use of LSD, Speed (amphetamine), cannabis and mushrooms. He had also used his parents' Valium. The illegal substance use is now in remission.
The non‑work‑related factors maintaining an Adjustment Disorder included his relationship breakdown, his financial problems following the failure of his business, the ongoing concerns about the charges and conviction relating to being an unlicensed plumber, and being a carer for his father. His alcohol excess may have played a part in his isolating other workers from him. His breaking of confidentiality and bullying of others at work would not have been caused by work-related factors.
In my opinion, the Adjustment Disorder is substantially related to non‑work‑related factors. In my opinion, his employment was not a major significant contributing factor to the Adjustment Disorder. Work factors had not contributed to the pre-existing illegal substance abuse."[5]
[5] Ex R1.
During his oral evidence Dr Nothling said that if Mr Wright had been developing paranoid thinking during the period October 2013 and April 2014 it could have impacted on his perception of the events that were occurring. He noted that schizophrenia is a biologically based disorder; not a stress-related disorder. He said that although stress could not cause the paranoia to develop, an external stressor may tend to temporarily exacerbate or exaggerate psychotic symptoms, albeit not causing them.[6] It was the doctor's view that although the stressors may have operated on Mr Wright simultaneously with him beginning to develop paranoid thoughts, this was mainly coincidental.
[6] T2:50/45.
Dr Nothling went on to say that as a psychotic disorder develops it would distort perceptions of relationships and events that were going on around that individual. His opinion is that a psychologically fit person would not become stressed about the sexual relationship between two work colleagues or about in which seat in a bus he sat.[7]
[7] T2:51/5-22.
During cross-examination by Mr Wright, the doctor rejected the proposition that severe depression is a symptom of paranoid schizophrenia but accepted that there might be anxiety with paranoid schizophrenia.
The Stressors
The Strip Club incident
On 27 February 2013 the appellant and some colleagues went out for the night and after visiting various drinking venues ended up at a strip club where a heavily intoxicated Mr Wright offered to perform fellatio on another patron for $5. This resulted in a fight leading to the appellant and the other person being evicted from the club. Mr Kevin Baptista, one of the colleagues with whom the appellant had been drinking and a mate of his who also worked on the A crew, emerged from the club to find the appellant on the ground being punched by the other person who said, "...this fucking faggot has tried to offer me $5 for a blow job." Mr Baptista and Mr Tony Gray (the other member of the group) put Mr Wright into a taxi and sent him home, whereupon they returned to the club.
The following work day the appellant turned up for work with a black eye and facial abrasions. At "pre-start" people asked him what had happened, and he told them the story. According to Mr Baptista the appellant was being "jovial" when he recounted what had occurred at the strip club Mr Baptista said he had told no one of the incident prior to this.
From that time the "$5 blow job" appears to have become a fairly regular joke in the work place with Mr Wright often recounting the story and others asking him for, or offering him, $5.
On one occasion Mr Wright had gone to the urinal when Mr Mark Fehlberg and Mr Joshua Ward, two co-workers, used the urinal on either side of him and Mr Fehlberg said to him, "Hey Lefty, do you got (sic) five bucks on you?' Laughter ensued.
The appellant submits that numerous employees, being the majority of A crew, made comments of this nature to him and that he was the brunt of their jokes. He nominates this as one of the stressors leading to his decompensation.
Several witnesses were called by BHP in relation to this matter. Mr Nathan Spencer a supervisor on A crew in his written statement[8] said he was not aware of anyone calling the appellant a "poofta". He went on to say that Mr Wright had never complained to him about people calling him a poofter and if he made such a complaint he (Mr Spencer) would have acted on it.
[8] Ex E5.
In his statement of stressors the appellant alleges that these bullying comments took place over the course of some fifteen months between February 2013 and May 2014.
Mark Fehlberg who was also called by BHP and worked with the appellant at the relevant time accepted that he and Mr Ward went into the urinal on either side of the appellant but said that he had no recollection of anybody saying "Lefty, have you got $5 bucks on you?" I accept Mr Ward's evidence that the comment was in fact made by Mr Fehlberg. Mr Fehlberg also said that the $5 blow job comments were frequently made by employees including the appellant, that they were made in jest and that the appellant also treated this as a joke. This is consistent with the evidence of Mr Dan Doran, another member of the A crew at the relevant time, who use to "car pool" with Mr Wright. Mr Doran said the $5 blow jobs were frequently referred to by employees and that the appellant would often bring up the matter himself and joke about it. Mr Baptista gave evidence to a similar effect.
I do not accept the appellant's evidence to the effect that the comments about the $5 blow job made by others constituted bullying or harassment. I accept that the comments were made in jest and given and taken by Mr Wright in that manner. It is significant that he made no complaint about them and did not raise them until he mentioned them to Dr Blom on 13 May 2014, after the date of decompensation. There is nothing in his GP's notes about the $5 blow job.[9] No evidence was led that corroborated Mr Wright's perspective of the events. I do, however, accept that as time went by the joke began wearing thin and the appellant no longer appreciated the comments from his work mates.
[9] Ex R2 - the notes were tendered by consent without Dr Manoheran being called.
To the extent that Dr Sarkar's diagnosis was based on Mr Wright having told him he was stressed by these events the diagnosis was based on inaccurate information.
Accordingly, I find that the alleged bullying and harassment relating to the $5 blow jobs did not contribute to Mr Wright's personal injury.
Harassment by two employees over their relationship
The appellant alleges that one of the stressors that led to his decompensation was the harassment by two employees, Mr X and Ms Y, relating to their clandestine relationship. The appellant said he had worked closely with the two employees while they were having a discreet affair.
The appellant said he felt anxious knowing about their relationship and had to be careful in his conversations with his colleagues not to reveal the existence of the relationship. The appellant said that Mr X believed his affair with Ms Y was getting out of hand and his wife would find out and wanted the appellant's help to get the situation under control.[10] On October 29 2013, the appellant received a call from Mr X who asked him to send a message to Ms Y to 'stir her up'. He sent her a message the same day via Facebook which read, "Hey, you should have a remote controlled dildo by internet." Ms Y was quick to point out her distaste at the comment. The two exchanged some further messages. In December, the appellant again advised Ms Y to 'buy a dildo.' Mr Wright said that his involvement in the affair was a cause of considerable stress at the time. Ms Y reported the appellant's messages to her employer. The messages the appellant sent formed the basis of a sexual harassment allegation against him which was substantiated. This was one factor that led to his dismissal on 23 May 2014.
[10] T1-6/5.
Insofar as any stress occasioned to the appellant by the relationship between Ms Y and Mr X, may have led to his decompensation, it did not arise out of, or in the course, of his employment. The employment was merely the setting.[11]
[11] Croning v Workers' Compensation Board of Queensland (1987) 156 QGIG 100.
Stressors 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14
I will deal with these matters together as they all involve interactions between the appellant and another employee.
The appellant appears to have regularly clashed with co-worker, Ms Sharlene Cameron. An incident occurred on the work bus between the two which resulted in management convening a meeting to discuss the issues between them. On 4 March 2014 he was called into the office to discuss claims of bullying that Ms Cameron had levelled at him. During this meeting with Bryony Andrews and Greg Sinton he said that he would report Ms Cameron for talking to him abusively.[12]
[12] T1-9.
The A crew travelled together by bus from the camp to the work site. While the seats on the bus were not allocated to specific people, it was known by the crew members that Ms Cameron would sit at the front of the bus. Ms Cameron said she did not view her regular seat as hers, but preferred to sit there because she would get sick if she was not sitting at the front. The appellant's co-workers, Mr Fahlberg and Ms Ward, both said they had observed the appellant purposely do things to annoy Ms Cameron like sit in her seat or next to her just to upset her. Ms Cameron said that on several occasions she had found herself being antagonized by the appellant over bus seating and had asked him to stop. Despite the appellant giving evidence that he was entitled to sit where he wanted as the seats were not allocated, it was clear to me that he would purposely sit in Ms Cameron's seat for the purposes of bothering her. Additionally the appellant, apparently in the knowledge that Ms Cameron had a friend who was a "bikie" made some derogatory comments about bikies in her hearing.
Ms Cameron had complained to Mr Spencer about the appellant's behaviour. She also said that a co-worker had also reported the issue to management after seeing her in tears about the matter one morning.[13] A meeting was convened for 13 March 2014 between the appellant, Ms Cameron, Ms Bryony Andrews, the Poitrel Mine's production manager and Mr Greg Sinton, the appellant's supervisor. The appellant called this meeting off after he learnt that Ms Andrews had not yet spoken to Mr Sinton about his concerns.[14]
[13] T2-18.
[14] T1-12/42.
It was also on 13 March that the appellant had reported Ms Cameron for speeding.
As I noted earlier, while one of the appellant's stressors has been articulated as the discrimination regarding bus seating arrangements, it appears that it was not solely the bus seating arrangement itself but rather the subsequent investigations, allegations of bullying or harassment, discrimination and breach of confidentiality issues which followed and were made against the appellant which could be said to be the constituent parts of the one stressor. The appellant was upset at the allegations because he believed he was not doing anything wrong and that the allegations came from an unreasonable person due to the dynamic between the two.
It is unclear to me how the appellant puts his case of "Discrimination with regard to the bus seating arrangement …" The evidence does not disclose that either Ms Cameron or the appellant was allocated any seat on the bus, let alone that he was required to sit in an inferior seat.
Insofar as the appellant alleges that he was discriminated against in relation to the bus seating arrangements, I find that no discrimination occurred. Further, to the extent that the bus issues (seating and air conditioning) contributed to the appellant's decompensation, I find that the cause was the interaction between the appellant and Ms Cameron, largely instigated by the appellant. The employment was not a significant contributing factor, let alone the major significant contributing factor, to the injury.
Another meeting was convened by management later on 13 March 2014 where the issues between the appellant and Ms Cameron were discussed.[15] A ROD was produced. The reason for the initial meeting, as the document reads, was "…to discuss Sharlene's concerns that Paul was deliberately harassing her in the workplace and travelling to and from work." The ROD records both the appellant's and Ms Cameron's viewpoints. The parties were presented options to remain working together on conditions or to be moved to separate crews. Both parties wanted to stay on A crew and agreed to conduct themselves appropriately.
[15] Ex A4.
The appellant refused to sign the ROD because he felt, having regard to its terms, that to do so would be to acknowledge that he had been bullying or harassing Ms Cameron, which he denied. Further, he considered that it denied him the freedom to sit where he wanted on the bus.[16] For example, I note in the Actions / Outcome section it reads that "Paul would not further antagonize Sharlene. He would not make inappropriate comments or sit in the seat that he is aware she prefers on the bus."
[16] T1:15/21.
If this is said to constitute discrimination, I disagree – it was an agreed outcome of the discussions. In effect it was no more than an acknowledgment by Mr Wright that he would conduct himself appropriately in the future. If it contributed to his injury it was reasonable management action taken in a reasonable way.
The appellant says he was pulled aside on 29 March 2014 by his supervisor Mr Spencer and again asked to sign the ROD, which he again refused to do as he did not consider that it reflected the outcome of the discussion which had taken place at the meeting. Mr Spencer said he would speak to Frank about it.[17] The appellant says at this time his mental state began to plummet as he felt that no action was being taken about his bullying complaint.
[17] T1:15/5. "I’m not signing this record of discussion. This makes me out to be a bully. And if you’re going down this path, I’m going to report you for calling me a ‘poofter’ and the $5 blowjob comments”. Nathan Spencer said, “I will speak to Frank”, and then he left at this point. My mental state began to plummet very rapidly. Nathan Spencer did nothing about the bullying and sexual harassment that I just reported him to."
Some 45 minutes after this encounter, during which the appellant told Mr Spencer that he would report him for calling him a poofter, the appellant became more distressed and said that he was too stressed for duty and that he needed to be sent back to the camp. He left the office and waited to catch the bus to the camp.
Eventually, the appellant did sign the ROD, in order to obtain a copy of it so that he could take advice, it having been refused him in an unsigned form. Mr Spencer said that he and Mr Civello were happy to withdraw the ROD until they discussed its contents further with Bryony Andrews. After the appellant further complained that it did not accurately reflect the outcome of the discussion he handed it back to Mr Spencer, who tore it up.
Mr Wright returned to work the following morning, 30 March 2014. He said that he felt bullied by management and sick of the sexual harassment and left work. He was driven to the Camp 40 crib hut[18] where he was left waiting for the rest of the day. Ms Cameron was also there. The appellant felt that was unreasonable considering what had transpired between them. He thought that he had been left with her deliberately. Mr Spencer denied this saying that if Ms Cameron had been there it was coincidental. The appellant phoned Gryphon Psychology.
[18] Ex E4.
Prior to the ROD regarding the discussions between the appellant and Ms Cameron being issued, they each signed a confidentiality statement to the effect they were not to talk about the discussion. At around 4:00pm the appellant was called to the office where Messrs Civello and Spencer told him they believed he had "breached confidentiality", stood him aside and sent him back to the camp. They told him that the whole camp knew about the ROD and investigation. It appears that that day the rest of the crew found about it and Ms Cameron reported that fact to management. Ms Cameron made a statement that it was the appellant who told crew members what was in the record of discussion and said there were also witnesses.[19]
[19] Evidence of Spencer T1-70.
Mr Wright went on to say that he believes he fully decompensated over the way he was being treated. His anxiety was through the roof. He stayed the night at the camp and drove to Mackay the following morning where he saw his GP.
He said that over the next few days his state of mind deteriorated with the consequence that he was unfit to appear at his court case in relation to the unlicensed plumbing charge, resulting in a $6,800 fine. This further exacerbated his symptoms. From 1 April 2014 he further decompensated into a psychotic episode. He was having auditory hallucinations, extreme paranoia and delusional thoughts.
The matters referred to in paragraphs 43, 45-58, all relate to the actions taken by management in relation to the issues described therein. It does seem that the calling of the meeting, the putting of allegations to the appellant, the issues with the signing of the ROD and, particularly, his suspension from duty did contribute to his decompensation. These events may be properly construed as management action. However, I find that the management action was reasonable and taken in a reasonable way. I have described what transpired and my conclusion is based on my findings of fact. Further, given Mr Wright's mental state, as described by Dr Nothling, it may well be the case that Mr Wright's injury arose out of, or in the course of, his perception of reasonable management action taken against him. In either case, the appellant's injury is excluded from the definition of "injury" by operation of section 32(5) of the Act.
Non-provision of Conduct of Interview Protocol in a timely manner
At the trial the appellant made much of the fact that he was not provided with a copy of BHP's Conduct of Interview Protocol prior to the discussion with him and Ms Cameron. According to him this should have been provided to him prior to the meeting, and certainly before he was asked to sign the record of discussion. It was apparently provided to him, and signed by him, some 45 minutes after the interview on 4 March 2014 with Ms Andrews and Mr Sinton.[20] However, he was not provided with a copy of the ROD for some days. He also complains that he was not offered a support person at the interview.
[20] T1-11/42.
The significance of this is that Mr Wright suggests, at least implicitly, that he was not aware of the requirement to keep the contents of the ROD and the discussion confidential because he had not been provided with the Conduct of Interview Protocol. It also suggests that Mr Wright did disclose what had occurred during the discussion the subject of the ROD. Further, on 10 March 2014, Mr Wright complained of a confidentiality breach regarding Ms Cameron's complaint.[21] This also suggests that Mr Wright knew about the necessity of keeping the ROD and the meeting confidential.
[21] T1-12/6.
It is not clear to me how these so-called stressors are said to have contributed to the appellant's decompensation. He did not complain to his treating practitioners of the lack of compliance with the protocol as being one of his stressors. There is no medical evidence to suggest that they did. This seems to me to be in the nature of a complaint that that BHP did not follow its protocols.
The appellant has not demonstrated that the alleged non-provision of the Conduct of Interview Protocol or the lack of a support person contributed to his decompensation. If I am wrong, the failure to provide the protocol prior to the interview, did not render what was otherwise reasonable action, taken by management in a reasonable way, unreasonable. Management action need not be perfect to be reasonable.[22]
[22] Bowers v WorkCover Queensland [2002] QIC 18.
I do, however, accept that the appellant was stressed by having been accused of breaching confidentiality and being stood down. To the extent that it may be said that these events contributed to his decompensation, they would be excluded from the definition of "injury" by operation of s 32(5) of the Act. The actions of management were reasonable in the circumstances and were taken in a reasonable way.
Conclusion
As was the case in Hardy[23] most of the stressors relied upon did not relate to management action, but to interactions between employees at the workplace. To the extent, if any, that the appellant's decompensation was caused by those interactions, even if it could be said that it arose in the course of his employment, the employment was not the significant contributing factor.
[23] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 202.
The appellant carries the burden of persuading me, on the balance of probabilities, that he suffered an injury. He has failed to do so. The medical evidence, particularly that of Dr Nothling, strongly suggest that the appellant's version of events is somewhat distorted.
To the extent that Mr Wright's injury arose in the course of his employment, I find that he has not established, on the balance of probabilities, that the employment was the major significant contributing factor, nor, if it be the relevant, that the employment was a major significant contributing factor.
To the extent that his injury arose out of or in the course of management action. I find that the action was reasonably taken in a reasonable way. Alternatively, that the injury arose out of Mr Wright's perception of reasonable management action taken against him.
The appeal is dismissed. The decision of the Regulator is confirmed. The appellant is to pay the respondent's costs.
Order accordingly.
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