649

The Queensland Government

Industrial Gazette PUBLISHED BY AUTHORITY

PP 451207100086 Annual Subscription $358.00 (GST inclusive) ISSN 0155-9362

Vol. 186 FRIDAY, 9 NOVEMBER, 2007 No. 14

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 341(1) - appeal against decision of commission

Richard Foster AND Rinker Australia Pty Ltd (C/2007/39)

PRESIDENT HALL 30 October 2007

DECISION Richard Foster commenced his first engagement with a company within the then CSR Group in 1991. That company was CSR Hebel Australia Pty Ltd. Mr Foster was employed as a CAD Draftsman. He was to render service to companies within the CSR Group at various locations south of the border, for the next 11 years. On all occasions, other than his first engagement as a CAD Draftsman, Mr Foster was in fact provided with the use of a motor vehicle. The letter of 1 April 1992, from CSR Hebel Australia Pty Ltd confirming Mr Foster's appointment as a Design Engineer simply said "... You will have the use of a company car.". Subsequent letters of appointment from other companies within the CSR Group referred to the provision of a "... tool of trade company vehicle to assist you in carrying out your duties.". Those subsequent letters of appointment also referred Mr Foster to the "CSR Company Car Policy" for further details. It was plainly arguable that the various companies had undertaken a contractual obligation to provide Mr Foster with a vehicle and to do so on the terms of the "CSR Company Car Policy"; though, I should add, it was equally arguable that each of the companies was simply asserting its authority to set the meets and bounds of the bailment under which Mr Foster was to hold a vehicle to assist him in performing his duties. The circumstance that the "CSR Company Car Policy" was understood to be subject to alteration, was not necessarily decisive of the question whether each of Mr Foster and the relevant corporate employer was contractually bound to the terms of the Policy. The case of Loftus v Roberts (1902) 18 TLR 532 has long since been distinguished. A contract of employment which binds an employee to the employer's policies but leaves the employer with latitude to vary those policies is no longer thought (in all cases) to show that the parties were not in truth intending to be legally bound. The law has been able to take that step because, having regard to the nature of the arrangement, the law has been able to conclude with such a discretionary power to alter policy is not unfettered. Admittedly, there is some difference of opinion as to the extent of the constraint placed upon the employer. In Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at 223, Mansfield J put the matter thus:

"[52] Nor do I consider that the fact that it was contemplated by the policy clause in the letter that the appellant might change its policies from time to time, or introduce new policies, signifies that it did not intend to be contractually bound to the respondent to comply with its policies from time to time. Its power to change its policies, or to introduce

650 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007

new policies, from time to time would be constrained by an implied term that it would act with due regard for the purposes of the contract of employment: eg Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 63, 137-8; 55 ALR 417, so it could not act capriciously, and arguably could not act unfairly towards the respondent: cf Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 61; 17 ALR 513. It might also be a power which, by implication, must be exercised reasonably having regard to the nature of the contract and the entitlements which exist under it: Renard Constructions (M E) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 279-80 per Handley JA. There is no issue as to the extent of any such implied constraints on the exercise of that power in this matter. Byrne v Australian Airlines Ltd (1995) 185 CKR 410; 131 ALR 422 does not, in my view, point to any different conclusion in the particular facts of this appeal. It concerned the question whether a clause in an industrial award was by virtue of that character to be implied into a contract of employment: see per McHugh and Gummow JJ at CLR 446, National Coal Board v Galley [1958] 1 All ER 91 provides an example where the terms of a contract of employment included terms incorporated by reference to a "national agreement" which it was contemplated might be altered or substituted over the period of employment.".

(That approach, I should add, was recently approved by Marshall J in Goldman Sachs J B Were Services Pty Ltd v Nikolich [2007] FCAFC 120 at para 124. See also Saad v TNT Limited No. CA40373/95 [1998] NSWSC 282). Later in 2000, in Clark v Nomura International plc [2000] IRLR 766 at 774-775, Burton J formulated the constraint in terms allowing the employer much greater freedom of action. At 774 to 775 Burton J said:

"Quite apart from the additional contractual straitjacket for the discretion in this case, the employer's discretion is in any event, as a result of the authorities, not unfettered, as both sides have accepted to be the law in this case. Even a simple discretion whether to award a bonus must not be exercised capriciously (United Bank Ltd v Akhtar [1989] IRLR 507 EAT, Clark v Bet plc [1997] IRLR 348 and Midland Bank plc v McCann 5/6/98 unreported EAT) or without reasonable or sufficient grounds (White v Reflecting Roadstuds Ltd [1991] IRLR 331 EAT, and McClory v Post Office [1993] IRLR 159). I do not consider that either of these definitions of the obligation are entirely apt, when considering whether an employer was in breach of contract in having exercised a discretion which on the fact of the contract is unfettered or absolute, or indeed even one which is contractually fettered such as the one here considered. Capriciousness, it seems to me, is not very easy to define: and I have been referred to Harper v National Coal Board [1980] IRLR 260 and Cheall v APEX [1982] IRLR 362. It can carry with it aspects of arbitrariness or domineeringness, or whimsicality and abstractedness. On the other hand the concept of 'without reasonable or sufficient grounds' seems to me to be too low a test. I do not consider it is right that there be simply a contractual obligation on an employer to act reasonably in the exercise of his discretion, which would suggest that the court can simply substitute its own view for that of the employer. My conclusion is that the right test is one of irrationality or perversity (of which caprice or capriciousness would be a good example) ie that no reasonable employer would have exercised his discretion in this way. I canvassed this provisional view in the course of argument with both counsel, and neither appeared to dissent, and indeed Mr Temple QC in his closing submissions expressly adopted and used a test of irrationality. Such test of perversity or irrationality is not only one which is simple, or at any rate simpler to understand and apply, but it is a familiar one, being that regularly applied in the Crown Office or, as it is soon to be, the Administrative Court. In reaching its conclusion, what the court does is thus not to substitute its own view, but to ask the question whether any reasonable employer could have come to such a conclusion. Of course, if and when the court concludes that the employer was in breach of contract, then it will be necessary to reach a conclusion, on the balance of probabilities, as to what would have occurred had the employer complied with its contractual obligations, or, as Timothy Walker J put it in Clark v BET plc, assess, without unrealistic assumptions, what position the employee would have been in had the employer performed its obligation. That will involve the court in assessing the employee's bonus, on the basis of the evidence before it, and thus to that extent putting itself in the position of the employer; but it will only do it if it is first satisfied, on the higher test, not that the employer acted unreasonably, but that no reasonable employer would have reached the conclusion it did acting in accordance with its contractual obligations, and the assessment of the bonus then of course is by way of an award of damages.".

Given that Commissioner Fisher, who dealt with the matter at first instance, chose not to determine whether over the period 1992 to 2003, Mr Foster had a contractual entitlement to a motor vehicle and chose not to determine whether the conditions of the "CSR Company Car Policy" had been incorporated into that contract, it is unnecessary to pursue the conflict here. (Though as a matter of prudence, I add that the determination of the legally binding promises which constitute the contact of employment is to be made on the whole of the circumstances of the particular case, and is not an exercise which involves the fitting of the facts of the case to a template established by the authorities, compare Goldman Sachs J B Were Services Pty Ltd v Nikolich, op. cit., at para 287 per Jessup J.) In early 2003, Mr Foster opted to take up a Queensland appointment with Readymix Holdings Pty Ltd, a company which subsequently left the CSR Group and was rebadged as Rinker Australia Pty Ltd. Again, Mr Foster was provided with a motor vehicle. However, the companies within the Rinker Group followed policies about the provision of motor vehicles which differed significantly from the policies which attached (attempting to use a neutral word) to the provision of the vehicles of which Mr Foster had had possession prior to his venture into Queensland. The decision of Commissioner Fisher is now reported at 185 QGIG 99. The Rinker Group Policy is adequately summarised at pp 101-102. There is no

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 651

utility in reproducing the summary here. It is sufficient to say, that on any view of the "constraint" on an employer's discretion to alter its policies, the change was a step too far. Plainly, it is also arguable, that where a new contract is negotiated or an existing contract is subject to consensual variation, there is no role for the operation of the "constraint". The compounding difficulty here, of course, is that by his letter of appointment from Readymix Holdings Pty Ltd, Mr Foster was to receive an increase in salary but "other terms and conditions of employment will remain the same"; a passage which might be either a misrepresentation or an indication that (at least) Readymix Holdings Pty Ltd did not apprehend that its Policy about the provision of motor vehicles and the "CSR Company Car Policy" were contractual instruments. Again, one may pass by those difficulties because they were not addressed by Commissioner Fisher. By April 2004, it had become apparent to Rinker Australia Pty Ltd that Mr Foster no longer required a company motor vehicle to discharge his duties. The matter was not raised with Mr Foster at the time but, as the end of the year and the expiry of the lease of the vehicle supplied to Mr Foster approached, the matter assumed significance. In November 2004, the matter of ceasing to provide Mr Foster with a vehicle for the future (or as Mr Foster would have it the "removal" of his vehicle) was raised with him by the Group Manager. The approach led to protracted negotiations (facilitated by extension of the lease of the vehicle), but the negotiations were not fruitful and Mr Foster surrendered the vehicle at the end of May 2005. Two months later, on 29 July 2005, Mr Foster commenced proceedings under s. 276 of the Industrial Relations Act 1999. In broad terms, the case to be advanced was that Mr Foster's contract of employment had always been, or had over time worked out to be, unfair in that it had permitted removal of the motor vehicle and that the Queensland Industrial Relations Commission should make the contract fair by including therein certain nominated terms and make consequential orders financially to compensate Mr Foster. Mr Foster who, I should add, is still employed by Rinker Australia Pty Ltd, took the opportunity to raise also issues about the fairness of his remuneration. The case developed was not that Mr Foster was inappropriately remunerated for the skills which he was required to display and the duties which he was required to perform. Neither was it contended that Mr Foster was remunerated otherwise than in conformity with the policies on the basis of which Rinker Australia Pty Ltd claimed to reward its employees. Rather, the case made, was that other employees called upon to display the same skills and performing the same duties were in receipt of higher salaries and entitled to the calculation of what might loosely be described as "bonuses" on a more generous formula. Again, Mr Foster sought orders to make his contract of employment a fair contract and consequential orders about compensation. The application was amended on 10 January 2007 and heard on the merits on 31 January, 1 February and 2 March 2007. By a decision of 31 May 2007, now reported at 185 QGIG 99, the Commission rejected Mr Foster's application in its entirety. This is an appeal against the decision of the Commission. It is common ground that the Appellant is limited to the grounds of error of law or excess, or want, of jurisdiction; see s. 341(1) of the Industrial Relations Act 1999 (the Act). It is for that reason that issues (properly) pursued with great vigour at first instance have not been referred to on the Appeal. Any error was but factual. However, it is important to add also, that because appeals to the Full Bench of the New South Wales Industrial Commission against decisions given under a counterpart to s. 276 of the Act are all appeals on fact and law, though those decisions are highly persuasive on matters of principle, those decisions are not a good guide as to the circumstances in which this Court may properly intervene. It is useful to reproduce the "Amended Application to Appeal" formal parts omitted.

"The grounds of appeal are as follows:

(a) Commissioner Fisher erred in law and/or acted in excess of or with want of jurisdiction in that Commissioner Fisher identified the wrong issue or asked the wrong question in failing to advert to the fact that the respondent in removing the subject motor vehicle from the appellant acted unilaterally and in breach of the appellant's contract of employment;

...

(b) Commissioner Fisher erred in law and/or acted in excess of or with want of jurisdiction in that Commissioner

Fisher identified the wrong issue or asked the wrong question in failing to advert to the legal consequences attending the change in policies made by the respondent with respect to the use by employees of motor vehicles supplied by the respondent;

...

(c) Commissioner Fisher erred in law and/or acted in excess of or with want of jurisdiction in asking the wrong

question or identifying the wrong issue in failing to appreciate the relief sought by the appellant with respect to the removal of the subject vehicle and failing to award any compensation to the appellant or amending the appellant's contract of service with respect to notice as to removal of that vehicle;

652 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007

...

(d) Commissioner Fisher erred in law and/or acted in excess of or with want of jurisdiction in that Commissioner Fisher asked the wrong question or identified the wrong issue with respect to the appellant's application in respect of the disparity in the remuneration between that received by the business system analyst identified as Kay Hayes and himself whereas Commissioner Fisher addressed the matter from the perspective of job grading.

The decision sought is:

(a) The appeal be allowed and the decision of the Commission overturned set aside. (b) The appellant be granted the orders given the relief as sought in the his proceedings in B2005/1099 or that which

this Honourable Court deems met. (c) Alternatively, that the matter be returned to Commissioner Fisher to act according to law.".

It is convenient to deal with the grounds of appeal in the order in which they appear. In fairness to Counsel for the Appellant and to the Appellant's solicitor (who argued the matter at first instance), I should stress that no attempt is made to go behind the decision of the New South Wales Court of Appeal in Sydney Water Corporation Limited v Industrial Relations Commission of NSW (2004) 141 IR 14. It is accepted that s. 276 of the Act does not vest the Queensland Industrial Relations Commission with jurisdiction to entertain a claim for a remedy for breach of a contract of employment. Rather, the submission is that the case developed at first instance was that the unilateral removal of the motor vehicle, in breach of the Appellant's contract of employment and with the consequence that the Appellant's remuneration was effectively reduced by the money value of the private use of the vehicle, was inherently unfair. Support for the proposition is said to be found in Rigby v Ferodo Limited [1988] ICR 29 at 43 per Lord Oliver and in Gillies and Others v Health Administration Corporation and Another [2003] NSWIR COMM 243 at para 206. At para 206 Schmidt J said:

"I am satisfied that a unilateral reduction by an employer such as the respondent, of an employee's contractual entitlement to a valuable benefit, for such reasons, can only result in the most obvious unfairness.".

It must be conceded that Commissioner Fisher did not advert to that argument. If the argument was an issue in the case, I consider that Commissioner Fisher's decision would be affected with error of law and indeed jurisdictional error in failing "to apply ... herself to the questions to be decided", see Re: Patterson; ex parte Taylor (2001) 182 ALR 657 at 676 per Gaudron J and in asking the wrong question, see Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351. The hurdle posed by s. 341(1) of the Act would have been well cleared. However, Counsel for the Appellant has quite failed to satisfy me that, the submission that the "unfairness" which triggered s. 276 was to be found in the removal of the vehicle from the Appellant in breach of contract, was a submission which was put at first instance. It is sufficient to go to the "Amended Application to Amend or Void a Contract" filed on 10 January 2007. The general nature of the Appellant's case appears sufficiently from paragraph 1 which is in the following terms:

"An order amending or declaring void (wholly or partly), except as to monies already paid, either from its commencement or some other time, the contract or the arrangement whereby I performed work as a Business Systems Analyst for Readymix Holdings Pty Ltd (with a Contract), on the grounds that the Contract is an unfair contract ...".

The basis for the conclusion that the Contract was unfair is asserted at paragraph 4(n). Emphasis added, paragraph 4(n) is as follows:

"(n) The Contract is unfair because:

(i) it allowed the respondent to remove the vehicle from me in breach of its own policy;

(ii) alternatively, it did not contain a provision requiring the respondent to provide me with reasonable notice of the removal of the Vehicle;

(iii) it did not contain a provision requiring the respondent to redress any financial disadvantage I suffered by

the removal of the Vehicle;

(iv) it required me to perform the same or similar work as other Business Systems Analysts at a different job grade and at a level of remuneration that was significantly lower than that paid to other Business Systems Analysts.".

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 653

On the face of para 4(n), so far from complaining that the Contract (i.e. the contract and arrangement) was breached by the Respondent's removal of the vehicle, the Appellant seems to have been complaining that the Contract (i.e. the contract and arrangement) was unfair because it allowed removal of the vehicle (albeit in breach of policy) or, alternatively, failed to ameliorate the shock, and for financial consequences associated with any such removal. The "decision sought" appears at paragraph 2(b)(i) and (ii). The Commission was, inter alia, being asked to render the Contract (which can only mean the contract of employment) fair by varying the Contract by inserting the following provisions:

"(i) The respondent shall not, without providing 12 months notice of its intention to do so, restrict or remove the applicant's use of and entitlement to his employer provided vehicle (the Vehicle);

(ii) Upon expiration of the notice period, the respondent shall increase the applicant's annual salary package by the

amount necessary to compensate the applicant fairly for the restriction or removal of the private use of the Vehicle;".

The variations, one should add, are intelligible only as variations to a contract which does not prohibit removal of the vehicle. I recognise that it is a consequence of s. 320(2) of the Act that proceedings in the Commission (even proceedings under s. 276) are attended by much informality and have considered whether the Appellant's claim changed as the case unfolded. I have also considered whether "allowed" at para 4(n)(i) was used in much the way in which "permitted" was used in Walker v Industrial Court (NSW) (1994) 53 IR 121 at 149 per Sheller JA (with whom Meagher JA agreed) i.e. in the sense of "that which the contract did not proscribe". However, the closing submission of the Appellant's solicitor both rejects the contention now boldly asserted and disavows a case based on breach of contractual obligation. The critical passage in the transcript appears at p 264:

"So in so far as City Water Corporation simply says that mere conduct in breach of a contract of employment is not an appropriate issue for the jurisdiction of the Commission, this is not what this case is about either.

Mr Foster does not come to this Court on the basis of trying to enforce a breach of his contract of employment. This is not a breach of contract of employment case. This is about the arrangements that occurred in relation to this - the provision of his vehicle and in relation to the - his remuneration.

Now whether they were terms and conditions of his employment capable of being the basis of some civil law claim in relation to breach of contract and damages is not an issue that has been raised in these proceedings at all. We don't talk about anything other then there being a breach of the company policy.

Now whether or not the policy actually constituted terms and conditions of employment in the sense that of a legal contractual entitlement, we don't need to argue that and, in fact, is not argued in front of you. We don't need to establish that. All we need to establish is that it was part of his collateral arrangements associated with his employment sufficient to bring it within the jurisdiction."

Whilst that is sufficient to dispose of ground (a) of the Appeal, I should deal with two further matters. First, it is the submission of Counsel for the Respondent that although Commissioner Fisher did not correctly confront the question whether the motor vehicle had been removed from Mr Foster in breach of his contract of employment, Her Honour did make findings in the course of dealing with other issues which would have required Her Honour to give the question a negative answer. The matter arises in this way. Starting (185 QGIG 99 at page 100) from the assumption that from 1992 onwards "provision of a vehicle formed part of the contract of service", Commissioner Fisher turned to the question whether the failure of the Appellant's contract with the Respondent to prohibit removal, inhibit removal or limit the financial consequences of removal, made the contract unfair. Her Honour concluded that those omissions did not render the contract unfair, because the basis on which the vehicle was supplied, viz. as a tool of trade vehicle, precluded characterisation of the removal as unfair where provision of the vehicle was no longer required to enable the Appellant to perform his duties (at pp 105-106). The submission now made is that the finding about the basis of provision of the vehicle is a barrier to a finding of an express or an implied term prohibiting removal of the vehicle, once provision of the vehicle had ceased to have a business purpose. I do not have the courage to accept that submission. Commissioner Fisher's decision is written in a language of conclusion and judgement. It is apparent that in determining the basis of provision of the vehicle, Commissioner Fisher, as Her Honour was entitled to do, took the broadest view of the relationship between the Appellant and the Respondent. The painstaking process of sorting through the exchanges (written and oral) between the Appellant and the Respondent leading to the formation of the contract with a view to determining the express and implied terms of that contract and the assessment of the basis of provision of the vehicle by objective construction of that contract in its commercial and historic setting, may well have led Her Honour to quite a different

654 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 outcome. In my view, the decision at first instance may not be protected against ground (a) of the grounds of appeal upon that basis. Second, whilst I accept that unilateral reduction by an employer of a contractual entitlement is prima facie unfair, I have reservations about proceeding from that finding to a conclusion that the contract itself is unfair within the meaning of s. 276. The decision of Schmidt J in Gillies and Others v Health Administration Corporation and Another [2003] NSWIR COMM 243, precedes the decision of the New South Wales Court of Appeal in Sydney Water Corporation Limited v Industrial Relations Commission of NSW (2004) 141 IR 14. Whilst the Court of Appeal accepted that the New South Wales equivalent of s. 276 recognised that a contract may become unfair, so as to attract the jurisdiction of the Commission, because of the post-contract conduct of the parties, the Court of Appeal also stressed that in the final analysis the jurisdictional foundation is to be found not in the conclusion that the conduct was unfair but in the conclusion that the contract was unfair, at 21 per Mason P with whom Hodgson and McColl JJA agreed. In this case, to move from the proposition that the Respondent's conduct was unfair to the conclusion that the contract was unfair, one would have to accept that it is unfair for a contract to leave a party disappointed by a breach to his remedies at common law. That submission would attract the considerations inconclusively dealt with by Mason P at 24-45. The matter has not been the subject of a full argument on this Appeal. It would be wrong to express an opinion upon it. However, I caution against use of this decision to support the view taken by Schmidt in Gillies and Others v Health Administration Corporation and Another (2003) NSWIR COMM 243 at para 246. Ground (b) of the grounds of the Appeal is subject to the same criticism as ground (a). It was not an aspect of the case developed at first instance that each of the contracts of employment which referred to access to a motor vehicle and to the "CSR Company Car Policy", incorporated the policy as a term of the contract. In particular, it was not an aspect of the case argued at first instance that the differences between the "CSR Company Car Policy" and the Rinker Group Policy were such that the Respondent had stepped beyond restraints placed upon its discretion. On the contrary, by paragraph 4(g) of the Amended Application to Amend or Void a Contract filed 10 January 2007, the Appellant sought to embrace the Rinker Policy and to assert a claim under the Policy. That claim was vigorously pressed. That explains why at pp 104-105 at the heading "Tool of Trade or Market Benefit?" Commissioner Fisher dealt at such length with the Appellant's entitlements under the policy. In my view, Commissioner Fisher neither identified the wrong issue nor asked the wrong question. Ground (c) of the grounds of the Appeal seems to me to be made out. However, having found that there is no relevant unfairness, Commissioner Fisher had no jurisdiction to go to matters of remedy and it is entirely understandable that Her Honour declined to do so. Grounds (a) (b) and (c) do not identify an error by the Commission. In my view ground (d) of the grounds of the Appeal has been made out. The critical passage in Commissioner Fisher's decision appears at p. 107. To understand the passage, one has to understand that the explanation (not justification) for the over grading and for the overpayment (if any) of other employees who are called upon to discharge duties and perform skills comparable to those discharged and exercised by the Appellant, was said to be found in history. A good example is the employment history of Ms A, a highly graded and highly paid employee who the Appellant put forward as the preferred comparator. Ms A had skills, not now required to be exercised but which at one time were required to be exercised by her, as an employee of the CSR Group of Companies whilst based in the United States. The skills, which at that time, had considerable market value. Instead of being offered an allowance or loading, Ms A was over graded and the effects of the over grading were said to linger on. Against that background Commissioner Fisher said:

"I accept that some BSAs whose duties and responsibilities may be equivalent to Mr Foster are paid more than he is. However, I am satisfied that this occurs primarily because of historical reasons and has occurred as a result of particular decisions made by the company. I do not propose to disturb those job grades which have been retained for historical and industrial purposes. I do not thing it is appropriate to adjust Mr Foster's job grade to match those other job grades as all this would do would be to compound the existing anomalies and not provide the remuneration relevant to the duties and responsibilities of his position. Nor do I think that it is appropriate to tinker with the integrity of the job evaluation system to increase Mr Foster's job grade in light of the existing anomalies. His position was evaluated in accordance with the system in place in Rinker and its predecessors. The outcome showed that his job grade was appropriate for his position and consistent with past evaluations. The process was conducted fairly, if anything on some aspects, Ms Chapman gave Mr Foster the benefit of a higher score than that which may have been required. Accordingly, Mr Foster's contract in this respect is no unfair and I decline to intervene.".

The Appellant complains about the second sentence. The case made at first instance was that, the problems having arisen, the Respondent disregarded the Appellant's disadvantage and failed to take decisions to redress the situation. As to the

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 655

second and third sentences, it was rightly submitted that such a relief had not been sought by the Appellant. (Indeed, in circumstances in which the other employees were not parties to the proceedings, the capacity of the Queensland Industrial Relations Commission to take the steps adverted to in the second sentence is questionable. The complaint about the remaining five sentences is that the Appellant had not sought to source unfairness in the job evaluation system or in the application of the system, but had sought to source the unfairness in the fact that persons discharging comparable duties and exercising comparable skills were significantly differently paid*. [*In fairness to the Respondent I should note it was always and remains the Respondent's contention that the factual basis of the claim has not been made and note also that, the consequence of the use of the verb "may" in the first sentence is that Commissioner Fisher fell short of determining that issue.] In my view, each of the Appellant's criticisms is justified. Additionally, there is no finding that the contract was unfair within the meaning of s. 276 of the Act. The Respondent was entitled to a finding on that question. If the matter of unfairness was determined favourably to the Respondent, that was the end of the case. The Commission had no jurisdiction to grant any relief whatsoever. The Appellant also was entitled to a determination of the question whether the contract was unfair. To begin with, the Appellant had sought a declaration of unfairness (and it had not been argued that such a declaration when coupled with substantive relief is beyond power). Further, the appropriateness of the relief sought can properly be assessed only if one is aware of the unfairness which the relief is directed to redress. In any event, the Queensland Industrial Relations Commission is not vested with intended power to review contracts and grant orders to make those contracts fairer and more equitable. The Queensland Industrial Relations Commission has jurisdiction to intervene only where the contract is shown to be unfair within the meaning of s. 276. The issue of unfairness was a "necessary issue" and a failure to deal with the issue involved jurisdictional error, see Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at para 48 per Marshall and Tracey JJ:

"38 The question remains whether the error is properly to be characterised as jurisdictional or non-jurisdictional in nature. It may be possible to describe the error as one involving the ignoring of relevant material: cf Craig at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CKR 323 at 352 [84]. There is, however, force in Kiefel J's observation, that, in context, the High Court is to be understood as merely referring to the well established ground of failure to have regard to relevant considerations in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CKR 24 at 40-41; see Linett v McIntyre [2002] FCAFC 157; (2002) 117 FCR 189 at 199. In the present case the complaint is not that the Full Bench ignored evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one to which there is a failure by a tribunal to deal with 'necessary issues'. Such a failure constitutes a jurisdictional error: see Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132 at 140, 160; SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 at [30].".

On the matter of disparity in remuneration the decision of the Commission must be set aside. In my view, this is not a situation in which this Court should exercise the power at s. 341(3)(b) to substitute another decision. Disparity in remuneration does not in itself render a contract unfair, compare Rothmans Distributions Limited v Full Court of the Industrial Court of New South Wales - BC 9402492. There are significant unresolved questions of fact; e.g. about whether the Respondent has taken steps to ameliorate and ultimately eliminate any disparity. This Court has been taken to parts of the evidence. Commissioner Fisher has had access to the whole of the evidence and has seen the case develop. Additionally, the legislative policy at s. 276 is that on the question of fairness - a question upon which reasonable minds will on occasion differ - the parties are entitled to the opinion of the Queensland Industrial Relations Commission. The Commission is also to adjudicate on remedy and, indeed, may go beyond the relief sought (provided that the parties are heard). This Court is to intervene only where there is error of law or excess or want of jurisdiction. I remit to Commissioner Fisher the outstanding issues at paragraphs 2(a), (b)(iii) and 4(n)(iv) of the Amended Application to Amend or Void a Contract, in order that those matters may be heard and determined according to law. I reserve all questions as to costs. Dated 30 October 2007. D.R. HALL, President. Released: 30 October 2007

Appearances: Mr K. Watson, instructed by Milner Lawyers, for the Appellant. Mr A.A. Horneman-Wren, instructed by Allens Arthur Robinson for the Respondent.

656 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to Commission

Craig John Hohn AND Q-COMP (WC/2007/8)

COMMISSIONER ASBURY 31 October 2007 Workers' Compensation and Rehabilitation Act 2003 - Allegations of workplace harassment and assault - Meaning of management action - Operation of reasonable management action exclusion in s. 32(5) - Circumstances where global approach to consideration of stressors will apply - Finding management action significantly contributing to injury was not reasonable or reasonably taken - Appeal allowed. Overview Craig John Hohn was employed by C. E. Marshall and Sons (Marshalls) as a casual plant operator, from 8 November 2004. On 8 June 2006, there was an incident in the workplace between Mr Hohn and his supervisor, Mr Paul Goldspink. As a result of that incident, Mr Hohn claimed to have suffered a psychological injury and has not worked for C. E. Marshall and Sons since 16 June 2006. On 23 June 2006, Mr Hohn made an application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). That application was rejected by WorkCover and on 11 October 2006 Mr Hohn lodged an application for review. In a decision of 19 December 2006, the Q-COMP Review Unit confirmed the decision of WorkCover that Mr Hohn's claim for compensation was one for rejection. This is an appeal by Mr Hohn under s. 549 of the Act, against the decision of the Q-COMP Review Unit. Evidence In addition to Mr Hohn, the following persons were called to give evidence in support of the appeal:

• Ms Meryl Corke, Psychologist; • Mr Carl Anthony Hudson, formerly employed by Marshalls; • Mr Kelvin William Munro, formerly employed by Marshalls; • Doctor Nyi Nyi Aung, General Practitioner.

Evidence for Q-COMP was given by:

• Mr Peter Andrew Beddow, Production Superintendent for Marshalls; • Mr John David Marshall, Supervisor for Marshalls; • Ms Melody Helen Burey, Project Manager for Marshalls.

In his application for compensation made on 24 June 2006 (Exhibit A), in response to the question: "How did the injury happen?", Mr Hohn said:

"Caused by unreasonable management practice by foreman bullying + harassing". In his evidence to the Commission Mr Hohn said that Mr Goldspink physically assaulted him on the night of 8 June 2006. At the start of the shift, Mr Goldspink told Mr Hohn that he wanted to see him later, and Mr Hohn thought that this was in relation to a day off he had the week before. During the shift Mr Goldspink drove to the area where Mr Hohn was working. Mr Goldspink got out of his car and walked about 50 metres towards Mr Hohn, who also got off the machine he had been operating and walked towards Mr Goldspink. Mr Goldspink yelled at Mr Hohn:

"You're a toad smoking little cunt and I'm going to get you the fucking sack and fucking you're gone". Mr Hohn responded by saying that he did not have to be spoken to like that, and turned and walked away. As Mr Hohn walked away he heard Mr Goldspink's footsteps behind him. Mr Hohn said that it felt like he was being "chased by a big yowie". Mr Hohn asked Mr Goldspink what he wanted, and Mr Goldspink responded by saying:

"You can't walk a-fucking-way from me. You get the fuck over here.".

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 657

Mr Hohn and Mr Goldspink turned and walked towards Mr Goldspink's car and Mr Hohn told Mr Goldspink he did not want to argue with him anymore and just wanted to do his job. Mr Hohn also asked Mr Goldspink why he always hassled him. Mr Hohn put his hand out, to shake Mr Goldspink's hand as he wanted to end the altercation. Mr Goldspink grabbed Mr Hohn's hand and jerked him into the car saying: "Don't fuck with me or you're gone" and pushed Mr Hohn back out of the window, causing Mr Hohn to trip or fall over. Mr Goldspink then left in his car. According to Mr Hohn's evidence Mr Goldspink is a large man with a black goatee beard and gold teeth. Mr Hohn is 165 cm tall and weighs 65 kilograms. Mr Hohn also said that Mr Goldspink generally spoke to staff in loud and aggressive terms and used bad language. Mr Hohn felt intimidated by Mr Goldspink. It was dark in the area where Mr Hohn was working on 8 June, as the machinery lights had been switched off. Mr Goldspink could have waited another half an hour until Mr Hohn went in to sign off after completing his shift, so that the discussion took place in a lit area. After the incident on the evening of 8 June Mr Hohn said that he felt devastated and was concerned about the implications of losing his job. When Mr Hohn walked in to sign off, he told another supervisor, Mr Carl Hudson (Carlos), that Mr Goldspink had just assaulted him. While Mr Hohn was signing off, Mr Goldspink winked at him and told him that this would be sorted out tomorrow. Mr Hohn took this to mean that he would be sacked the next day. Before attending work on 9 June Mr Hohn prepared a letter complaining about his treatment by Mr Goldspink (Exhibit 1A) in the following terms:

"To Marshalls

I would like to notify that I am being harass by Goldy.

Talks in a manor that is unexpectable name calling, bully tactics.

June 8 hadnt seen goldy all nite comes down pulls me of Grader told me your on ya last chance. That stunt u pulled last week (day-off) doens right thing rang-up went to doc couldn't get in.

Called me a toad smoking little cunt and he gunna sort me out.

When I thought it was over put hand out shake hands Goldy did to, and then jerked arms towards him, I do not have to put up with that bullying.

He also like playing mind games by telling me Marshalls wanted to sack me over compo, since gone + seen Barry Pete and Brad Marshall they said NO.

Why is he doing this?

CJ Hohn.".

Mr Hohn said that on 9 June 2006 he felt physically ill and was vomiting bile, and that he told a work colleague, Mr Munro, that he had been assaulted by Mr Goldspink. Mr Hohn attended at the workplace, and before commencing his next night shift, attempted to hand the letter to Mr Beddow, Production Superintendant of Marshalls who would not take the letter. Mr Hohn read the letter aloud to Mr Beddow, who then said that he would take the letter and give it to Ms Melody Burey. Mr Beddow smirked at Mr Hohn and said: "how do I know you're not lying, how can I believe you over my supervisor's word". Mr Hohn said that given Mr Beddow's refusal to take the letter, he told Mr Beddow that he would give it to Ms Burey himself. On 9 June 2006 Mr Hohn was given a warning letter in relation to chit chat on the two-way radio. That letter (Exhibit 9) alleged that on night shift on 8 June 2006, Mr Hohn had created idle chatter on the two-way radio in breach of company policy, and any further breaches of procedures could result in further disciplinary action such as suspension or dismissal. Mr Hohn was also taken off the grader he had been operating and was required to drive a truck. After completing four hours of this shift, Mr Hohn was told to go to the gate line, and was sent home by Mr John Marshall for allegedly running over a rock.

658 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 Mr Hohn wrote a second letter (Exhibit 1B) complaining that his allegations of harassment had not been dealt with and that the harassment had continued. The letter also alleged that Mr Hohn had been sent home because he had read the first letter to Mr Peter Beddow, and that the warning letter was a fabrication to cover up the way that he had been treated by Mr Goldspink. Mr Hohn tried unsuccessfully for a number of days to give the letters to Ms Burey, driving out to site during hours he was rostered off. Mr Hohn then contacted the President of the local lodge of The Construction, Forestry, Mining & Energy, Industrial Union of Employees (CFMEU) in Blackwater, who made contact with Ms Burey. Mr Hohn said that Ms Burey telephoned him within twenty minutes of the Union becoming involved. According to Mr Hohn, at that stage it was too late and he was already on a downward spiral, feeling that no-one believed him or wanted to talk to him. Under cross-examination, Mr Hohn admitted to a bit of chit chat with his workmate, Mr Hudson, but maintained that they were chatting mainly for the purpose of keeping two graders they were operating in line and had been doing their job. The circuit had been shut down and there were no trucks running. Mr Hohn agreed that the issue of chit chat on radios had been mentioned at toolbox meetings, but said that he had not been spoken to about this issue before the warning on 9 June 2006. Mr Hohn also agreed that too much chit chat on the two-way is a safety issue and that anyone - including him - who talks too much deserves a safety breach. Mr Hohn was shown a document headed "Assessment Radio Communication" and said that he had completed this document by ticking a number of boxes and writing answers on it. The document was dated 10 June 2006 and was signed off by Ms Melody Burey on 11 June 2006 (refer Exhibit 2). Mr Hohn agreed under cross-examination that the question of whether he was engaging in too much chit chat on the radio was a question for his employer to determine as part of the employer's responsibility for workplace health and safety, and that the employer was entitled to raise this issue with him. However, Mr Hohn maintained that he was not talking too much on the evening of 8 June, and questioned why Mr Hudson did not also receive a breach for the same issue, given that they were both supposedly talking. Mr Hohn also maintained that Mr Goldspink had not initially discussed the issue of chit chat on the radio with him on the evening of 8 June, but had a go at Mr Hohn about a day off he had taken the previous week. Mr Hohn agreed that Mr Goldspink then said that Mr Hohn had engaged in chit chat, and Mr Hohn responded by saying:

"I haven't been talking, all I've heard is you gobbing off with Drew.". Mr Goldspink had then "just gone off". Mr Hohn also maintained that Mr Goldspink had been swearing and yelling when he got out of his car. Mr Hohn rejected the proposition that Mr Goldspink had raised the issue of chit chat on the radio with him on earlier occasions, saying that the only thing Mr Goldspink ever said to him was to blame Mr Hohn for switching the two-way radio to a music channel. Mr Hohn and Mr Goldspink had words about this issue, but Mr Hohn said that other employees had done this as a joke and he had been blamed. Mr Hohn agreed that this was the wrong thing to do and constituted a safety breach, but maintained that he did not do it. Mr Hohn agreed that he also asked Mr Goldspink why he was not chipping Mr Hudson for talking on the two-way, but could not remember whether he told Mr Goldspink to check with Mr Hudson whether Mr Hohn had been talking excessively. Mr Hohn said that he was panicking about what Mr Goldspink said to him and could not recall every word that was said. Mr Hohn also said that the radio was only brought up after Mr Goldspink was "going off about the day off". By then it was a screaming match, and Mr Hohn told Mr Goldspink: "Well go and sack me, fuck off and sack me". In response to the proposition that after saying this to Mr Goldspink it was strange for him to put out his hand and offer to shake hands with Mr Goldspink, Mr Hohn said that this did not occur straight away. It was after they had walked back to the car, and Mr Goldspink had responded by grabbing Mr Hohn's hand with force and pulling him into the car through the door. Mr Hohn agreed that when he received the warning letter dated 9 June 2006 he was upset, but rejected the proposition that he had dwelled on this over subsequent weeks. Mr Hohn also said that he had not run over a rock or a piece of dirt, and that in any event, it was not usual practice for employees to be sent home for this type of incident or a more serious incident. Mr Hohn said that he did not leave his letter of complaint with Mr Beddow, because he could tell that Mr Beddow thought that it was a joke and was concerned that he would tell Mr Goldspink about the complaint and that it would become common knowledge. Mr Hohn also said that he drove to site in the middle of the day to try to catch Ms Burey on three occasions. He did not initially leave the letter because he wanted to be sure that Ms Burey received it. Mr Hohn left the letter in an envelope for Ms Burey after the Union became involved. Mr Hohn agreed that he might have left the letter for Ms Burey on Monday, and had gone to site two or three times, once on Friday and possibly on Saturday. Mr Hohn also put the second letter of complaint which he had written by this stage, into the same envelope.

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 659

Mr Hohn maintained that he had not committed three safety breaches in a short period of time on 8 and 9 June 2006, and said that in the whole time he had worked for Marshalls only one other person had been sent home for similar breaches. Other employees had been spoken to and retrained, but had not been penalised in the same way. Mr Hohn said that the assault by Mr Goldspink and the warning letter, and being sent home on 9 June caused him to feel victimised. Mr Hohn also agreed that when he saw the psychologist he raised a number of issues that caused him to be stressed, but maintained that the main issue was being assaulted and no-one believing him or wanting to help. While the other issues had contributed to his condition, the main issue had been the assault. Mr Hohn was also shown a letter in relation to a safety breach involving jumping down a ladder from a machine and failing to maintain three point contact. Mr Hohn said that he had previously filled out a defect book pointing out that the machine did not have a handrail, so that there was nothing to hold onto. Mr Hohn also said that at the time this incident occurred he had been suffering from a hernia in his groin and had been unable to get down from the machine in the proper way without hurting himself because it did not have a handrail. Mr Hohn denied that he wanted Marshalls to sack Mr Goldspink but said that he asked for an apology from Mr Goldspink in front of his crew, so that they did not think he was lying about being assaulted. Mr Hohn also said that he wanted an apology and did not care whether or not it was public. By the time Ms Burey rang Mr Hohn he was on medication as a result of his psychological injury, and did not want to speak to her. The CFMEU on behalf of Mr Hohn wrote to Marshalls and requested that Ms Burey cease her attempts to contact Mr Hohn by telephone. Mr Hohn agreed that after he went on workers' compensation, and began taking medication, Ms Burey proposed that he return to work on light duties. Mr Hohn said that he was prepared to do this as soon as his doctor cleared him to return to work. Mr Hohn was shown a letter from Ms Burey dated 16 June 2006 (Exhibit 13), in the following terms:

"Dear Craig

With reference to your recent complaint regarding your Supervisors (sic) language and behaviour while he was disciplining you for a safety breach, the following actions have been taken.

The Supervisor was interviewed and he agreed that he did talk to you in an inappropriate manner and his actions were not to be condoned or appropriate either. The Supervisor's behaviour has now been addressed and he has provided his assurance he will not act in this manner again.

CE Marshall and Sons require all employees to act in a manner that is appropriate and in accordance with company policies and procedures, if any employee chooses to disregard these requirements they will be disciplined accordingly.

Should you require any further information please do not hesitate to contact me at your earliest convenience.".

Mr Hohn said that his view on receiving the letter was that it was wrong, because Mr Goldspink was not disciplining him for a safety breach, but was having a go at him for having a day off. Mr Hohn also denied that he had complained to other staff about Mr Goldspink disciplining him for chit chat on the radio, and said that he complained about being assaulted by Mr Goldspink. In response to the proposition that he was not prepared to accommodate the proposals put to him by Ms Burey for a return to work, Mr Hohn said that at the time he could not go back to work and would have done so once his doctor cleared him. Mr Hudson said that at the beginning of the shift on 8 June 2006, Mr Hohn appeared to be in good spirits. At the end of the shift Mr Hohn had been distraught and was shaking and upset. Mr Hohn told Mr Hudson that Mr Goldspink had grabbed him by the hand and tried to pull him off the machine and had called Mr Hohn a "toad smoking C or something like that". Mr Hudson said that he told Mr Hohn that he should put it in a letter and give it to Mr Beddow. Mr Marshall later told Mr Hudson, with reference to Mr Hohn: "Goldie told me I got to ride him". According to Mr Hudson there was an operative work instruction from the safety officer that he did not mind a bit of chatter on the two-way radio for fatigue management. This directive had been given at a pre-start safety meeting before 8 June 2006. Mr Hudson also confirmed that he had not been spoken to on the night of 8 June about his chatter on the two-way radio being excessive, and had never been spoken to in this regard either before or after that date. Mr Hudson said that there was some chatter with Mr Hohn, but it was work-based and was not excessive. Mr Hohn was learning how to operate the grader and had not been "passed out" in relation to grading wet circuits. The chatter had been for the purpose of Mr Hudson assisting Mr Hohn to operate the grader.

660 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 Under cross-examination, Mr Hudson agreed that chit chat on the radio is a safety issue, and that it was the responsibility of supervisors or senior crew members to prevent excessive chit chat by taking appropriate steps. Mr Hudson agreed that when he saw Mr Hohn in the early hours of 9 June, Mr Hohn said that Mr Goldspink had chipped him pretty hard about excessive use of the radio and threatened him with the sack. Mr Hudson also agreed that Mr Hohn said something about a pretty vigorous handshake, but did not say anything about being chipped for taking time off work. Mr Hudson maintained that Mr Marshall had stated that Mr Goldspink had told him to "ride" Mr Hohn. Mr Hudson had seen other employees sent to the gate line for running over rocks, and whether this happened depended on whether the employee concerned was liked by management. Mr Hudson agreed that this was only his impression and that he did not know which employees were liked or disliked by management. Mr Munro said that he and Mr Hohn travelled to work together while working for Marshalls. Mr Munro said that he remembered going to Mr Hohn's house early in June 2006, and having a discussion about an incident which had occurred between Mr Hohn and Mr Goldspink. Mr Hohn told Mr Munro that he had an altercation with Mr Goldspink at work and after it was over, Mr Goldspink dragged Mr Hohn into the side of a car, while Mr Hohn was trying to shake Mr Goldspink's hand. Mr Munro said that Mr Hohn had been really upset and could not talk much because he was vomiting into his bin. On another occasion Mr Hohn had been vomiting and had backed his car into Mr Munro's car. This had occurred when Mr Hohn was on his way to work. Mr Munro was not aware of any formal grievance procedure at Marshalls for dealing with workplace bullying and harassment. Under cross-examination Mr Munro agreed that he had not seen the things that made Mr Hohn upset, and only knew what Mr Hohn had told him. Mr Munro agreed that on the first occasion when Mr Hohn was upset, Mr Hohn told him that he had been chipped by Mr Goldspink for excessive use of the two-way radio. Mr Hohn had not mentioned any other reason for being chipped by Mr Goldspink. Mr Munro agreed that there was a concern at Marshalls and in the mining industry generally about damage caused to truck tyres due to running over rocks. Mr Munro said that if employees of Marshalls ran over rocks and damaged tyres they would be suspended for several days. Mr Beddow said that Mr Goldspink had spoken to him at the beginning of a night shift, in relation to Mr Hohn's communication on the two-way radio. As a result of what he was told by Mr Goldspink, Mr Beddow wrote a warning letter to Mr Hohn dated 9 June 2006 (Exhibit 9). Mr Beddow could not remember exactly what he had been told by Mr Goldspink. The letter was in accordance with Marshalls' standard practice with respect to safety breaches. Mr Beddow could not remember when Mr Hohn received the letter or whether it was handed to Mr Hohn during the discussion about Mr Goldspink or before or after that discussion. However, Mr Beddow could recall that Mr Hohn was not happy about the letter and said that it was not correct. Mr Beddow said that he had not refused to take documentation from Mr Hohn, and Mr Hohn had not attempted to give him any documentation. Mr Hohn complained to Mr Beddow about being harassed by Mr Goldspink. Mr Beddow could not remember the exact words, but said that Mr Hohn was not happy with the way he was spoken to or dealt with. Mr Beddow told Mr Hohn that he would talk to Mr Goldspink. Mr Beddow had a discussion with Mr Goldspink about Mr Hohn's complaint and told Mr Goldspink to back off and leave Mr Hohn alone. After the matter was investigated by Ms Burey, Mr Goldspink received a written warning. Mr Beddow said that Mr Hohn's complaint had been taken seriously, and denied that he had laughed at Mr Hohn when he made the complaint. Under cross-examination Mr Beddow agreed that the policy about chatter was directed to excessive chatter and there was some latitude about what was excessive. There was no guideline about when chatter was or was not excessive, and this could vary in relation to site conditions on the evening in question. Mr Beddow also agreed that employees working the night shift would talk on the radio as a means of managing fatigue. Mr Beddow agreed that if a supervisor believed that chatter was excessive, he would expect that the supervisor would intervene immediately and not leave the matter until the end of a shift. Mr Beddow also agreed that if a supervisor heard excessive chatter at the beginning of a shift it would be quite improper for that supervisor to wait until the end of the shift to approach the worker concerned. Mr Beddow said that when he executed the warning letter of 9 June 2006 to Mr Hohn, he did not investigate who the other person involved in the alleged excessive chatter was. Mr Goldspink had not mentioned Mr Hudson as being involved in the chatter. Mr Beddow agreed that this singled out one perpetrator while nothing was done about the other one. Mr Beddow also agreed that talking on the radio was a two-way street involving two employees, and that the fact that only one was warned indicated that there was a flaw in the investigative process. Mr Beddow had taken Mr Goldspink's word at face value. Mr Goldspink had not relayed that he had used inappropriate language, and this would have put a different complexion on the events of the evening. Mr Beddow said that this was inappropriate behaviour on the part of Mr Goldspink and was not language that Mr Beddow would use in disciplining an employee.

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 661

Mr Beddow agreed that Mr Goldspink and Mr Hohn did not have a good working relationship and that there is a significant size difference between the two men, with Mr Goldspink standing six feet and two inches tall and weighing 120 kilograms, and Mr Hohn about five feet and six inches tall and weighing 65 kilograms. Mr Beddow agreed that he had not ensured that a thorough investigation was carried out in relation to the denial by Mr Hohn of committing a breach of safety requirements and that this should have been done. Mr Beddow initially denied that Mr Hohn told him that he was being intimidated by Mr Goldspink. Mr Beddow later conceded that he had given a signed statement to WorkCover saying that Mr Hohn told him he was being intimidated by Mr Goldspink; that Mr Goldspink had called him a "fucking cunt"; and that Mr Goldspink had pulled him by the hand. Mr Beddow agreed that if he had spoken to Mr Hudson, and known of Mr Goldspink's behaviour towards Mr Hohn (assuming that Mr Goldspink had assaulted Mr Hohn), it was unlikely that he would have written the warning letter dated 9 June 2006. Mr Marshall said that on 9 June 2006 he was told to wait back for Mr Hohn who was meeting with Mr Beddow, as the rest of the crew had already been bussed to the job site. Mr Hohn had not seemed upset and Mr Marshall dropped him to the point where his truck was waiting at around 5.30 p.m. Later in the shift, Mr Marshall observed Mr Hohn drive his truck in front of another truck and reverse, while the driver of that truck was tipping his load. Mr Hohn had not communicated positively to let the driver at the dump know that he was coming around him. Mr Hohn then ran over some huge rocks while reversing his truck towards the rill, and his truck hit the rill, with the risk that it would fall over the edge. This conduct involved three safety breaches. Mr Marshall called Mr Hohn on the radio and asked Mr Hohn to meet him at the "go line". Mr Hohn became heated and asked Mr Marshall: "What the fuck have I done now?". Mr Marshall told Mr Hohn about the three breaches and Mr Hohn calmed down, saying that he realised he had "fucked up". Mr Marshall suspended Mr Hohn for the rest of the shift, with the result that Mr Hohn was not paid past approximately 8.45 p.m. that night. There was nothing unusual about an employee being suspended in these circumstances, and Mr Marshall denied that he had been instructed to ride Mr Hohn or had any discussions with Mr Goldspink about Mr Hohn. Mr Marshall also denied that he had any discussions with Mr Hudson about Mr Hohn. Mr Marshall produced case notes which he had written before the end of the shift on 9 June 2006 to document the circumstances which led to Mr Hohn's suspension (Exhibit 10). Mr Marshall said that the case notes comprised two pages because he had large handwriting. One of the pages of notes stated that Mr Hohn was seen at the dump on ramp 50 driving in front of truck 23 while that truck was dumping. There was no radio contact by Mr Hohn. The note went on to state that Mr Hohn backed back to the rill over rocks as big as a bucket and hit the rill with his back four tyres. This incident was said to have happened at 8.45 p.m. The second document stated that at 8.45 p.m. Friday night Mr Hohn was seen entering the ramp 50 dump running over rocks and that Mr Hohn drove in front of truck 23 with no radio communication before reversing back hard into the rill. Under cross-examination, Mr Marshall denied that he had been told by Mr Goldspink to "ride" Mr Hohn or had reported this to Mr Hudson. On 9 June 2006, Mr Marshall was unaware that Mr Hohn had earlier complained to Mr Beddow about Mr Goldspink. Mr Marshall was also unable to explain why there were two case notes, one longer and more detailed than the other, about the same three incidents or why there were inconsistencies in the sequence of events described in the two documents. In response to the proposition that he had rewritten his notes to get three breaches so Mr Hohn could be put off that night, Mr Marshall said: "No, not really". Mr Marshall said that it was not company policy to use hand signals to communicate as there had been instances when hand signals were missed. When Mr Marshall observed Mr Hohn committing these safety breaches he was 50 metres away and could not see whether Mr Hohn and the other truck driver exchanged hand signals. Ms Burey said that she became aware of the incident involving Mr Goldspink and Mr Hohn, on 14 June 2006, when she returned from a number of days off, and saw letters from Mr Hohn. Ms Burey could not deal with the issues raised in the letters immediately because both Mr Hohn and Mr Goldspink were off roster. Mr Goldspink returned to work first and Ms Burey spoke to him about his involvement on or around 15 June 2006. Contemporaneous notes of this discussion taken by Ms Burey were admitted and marked as Exhibit 11. Mr Goldspink admitted to Ms Burey that during a discussion with Mr Hohn he had called Mr Hohn a "toad smoking cunt". Ms Burey's notes indicate that according to Mr Goldspink, Mr Hohn extended his hand and Mr Goldspink shook it, and Mr Goldspink's stronger handshake caused Mr Hohn to fall in towards Mr Goldspink. Ms Burey told Mr Goldspink that this was inappropriate and not allowable and issued him with a written warning which was placed on his file. Mr Hohn did not return to work and Ms Burey attempted to contact him. Subsequently Ms Burey had dealings with Mr Curtis, a representative from the CFMEU, and told Mr Curtis what action had been taken with respect to Mr Goldspink. On 16 June 2006 Ms Burey wrote to Mr Hohn at the request of Mr Curtis (Exhibit 13). Ms Burey also spoke to Mr Hohn and made offers to him about returning to work on a different crew or performing

662 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 maintenance work. Mr Hohn had not agreed to these proposals and continued to be subject to medical certificates stating that he was unable to work. Mr Hohn advised Ms Burey that he wanted a public apology from Mr Goldspink. Ms Burey responded to this request by telling Mr Hohn that Mr Goldspink would not apologise publicly but was happy to do so one-on-one. Ms Burey also offered to arrange mediation through an independent person. Mr Hohn said that he was not comfortable with this and would return to work when he felt better. Ms Burey told Mr Hohn to take as much time off as he needed. Mr Hohn ultimately resigned from the Company. Doctor Nyi Nyi Aung, General Practitioner said that Mr Hohn consulted him on 19 June 2006 in relation to some work related matters. When Mr Hohn presented he told Doctor Aung that he had communication problems with a supervisor for the past six months and had been yelled at and called inappropriate names. Mr Hohn had also stated that he had been harassed and threatened with the sack for excessive use of the two-way radio. Further, Mr Hohn reported that he felt nauseous and vomited when he thought about going to work. Doctor Aung made a diagnosis of adjustment disorder, depression and anxiety. Doctor Aung prescribed medication for Mr Hohn but Mr Hohn had not wanted to take medication. That diagnosis was set out in a letter to a WorkCover claims assessor dated 29 June 2006 (Exhibit 7). On 23 August 2006 Doctor Aung certified that Mr Hohn had work related stress and anxiety since 16 June 2006 and was totally incapacitated. The certificate also stated that Mr Hohn had been referred to a clinical psychologist for further management (Exhibit 8). On 5 July 2006 Mr Hohn had a consultation with Ms Meryl Corke, a Psychologist, who was retained by WorkCover to provide an assessment. Ms Corke's report (Exhibit 6) lists the following events said by Mr Hohn to have contributed to his injury:

• inappropriate workplace behaviour; • difficulty submitting a grievance to Human Resources; and • complaint not satisfactorily resolved by management.

Attached to Ms Corke's report was a statement taken from Mr Hohn, signed and dated 10 July 2006. That statement is generally consistent with the evidence Mr Hohn gave to the Commission, and in particular that he had been verbally abused, threatened and physically assaulted by Mr Goldspink. It also details the attempts made by Mr Hohn to give letters setting out his grievances about his treatment by Mr Goldspink to Mr Beddow and Ms Burey. Mr Hohn described symptoms such as nausea, sleep disturbance, difficulty relaxing, worrying about work, being irritable and teary, loss of appetite, increased smoking, feeling helpless and useless, feeling down and self-doubt. Ms Corke found that these symptoms were consistent with a formal diagnosis of Adjustment Disorder with Mixed Anxiety and Depression. Ms Corke's report concluded that it appeared Mr Hohn had experienced inappropriate workplace behaviour and was still concerned that the behaviours were not dealt with appropriately by management when the incidents occurred. In her evidence to the Commission, Ms Corke said that there was no evidence of any stressors which were not work related. Ms Corke agreed that if Mr Hudson's evidence was that he observed that on the evening of 8 June 2006 Mr Hohn was visibly upset, and if another co-worker noted that Mr Hohn had been physically ill the next day before coming to work, that this would support the information Mr Hohn had given her about how he felt after the incidents of 8 June. Ms Corke said that in relation to the conflicting versions of the incident between Mr Hohn and Mr Goldspink, something in the ilk of Mr Hohn's version of events must have occurred for Mr Hohn to be so distressed and upset. Ms Corke also said that she would not expect that Mr Hohn would be in the distressed state he was in, if there had not been something serious like an assault. According to Ms Corke the assault was a major contributor to Mr Hohn's injury. While that would have been a major thing, the fact that there were other issues and that Mr Hohn reported the threat of losing his job, would also have contributed to getting Mr Hohn to the state where he was unable to work. Ms Corke said that Mr Hohn's distressed state caused by the assault, and the threat of losing his job, would have remained until those two issues were addressed. These issues were not addressed and were added to on the next night. The most significant damage was done on 8 June 2006. In response to the proposition that the non-resolution of these issues played a less significant role, Ms Corke said that this was a fair enough statement. Ms Corke also said that if the incidents on 8 June 2006 had not occurred, then the other subsequent incidents would not have had such an impact on Mr Hohn. Under cross-examination, Ms Corke said that for her to report a stressor, it would have been a contributing factor in the crystallisation of Mr Hohn's condition. In relation to the issue that Mr Hohn's complaint was not resolved by management, Mr Hohn had particularly wanted an apology and some acknowledgement of what Mr Goldspink had done, and the letter from Ms Burey dated 16 June 2006 had not done this. Mr Hohn was not dissatisfied with what was proposed in that letter, but rather felt that his issues had not been fully resolved.

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 663

Ms Corke agreed with the proposition that there might be more effective resolutions of Mr Hohn's issues other than an apology, and that it was ultimately a matter for management to determine. Ms Corke also agreed that the most significant stressor was the inappropriate workplace behaviour by Mr Goldspink, but the second issue of difficulty in submitting a complaint became more significant. Ms Corke agreed that the three stressors together had contributed to the diagnosis. Submissions It was submitted for the appellant that the Commission must accept the evidence of Mr Hohn about the incident with Mr Goldspink unless the version of Mr Hohn is so improbable that it is implausible. The significant contributing factor to Mr Hohn's injury was the assault by Mr Goldspink, as evidenced by the indicia observed by his co-workers the next day, including Mr Hohn vomiting and being distraught. This was said to establish that Mr Hohn already had a significant psychological reaction before returning to work on 9 June 2006. It was also submitted that the Commission should accept the evidence of Mr Hohn and Mr Hudson over that of Mr Marshall. Further, it was contended that the management action was fatally flawed from the outset due to lack of procedural fairness on the part of the employer, as conceded by Mr Beddow. A global approach should be taken in this case, so that what could be viewed in isolation as minor blemishes in management action, are re-categorised as unreasonable management action in the context of the total course of conduct engaged in by management. Here, management action taken as a whole, was fundamentally flawed at its inception and the whole management process was therefore tainted. According to the appellant's submissions the present case falls outside Q-COMP v Education Queensland (2005) 179 QGIG 491 (McArthur's case) and is not governed by that case. If it is determined that this is not a case where a global approach should be taken, the appellant will still succeed in relation to any factual findings that must be made and in relation to the contention that the management action was not reasonable. In this regard, it is conceded by the respondent that the assault by Mr Goldspink upon Mr Hohn could not amount to reasonable management action. The concession by Mr Beddow that Mr Hohn was not offered procedural fairness taints it at inception, and any of the process that flows thereafter is unreasonable management action. Any factual finding could only lead to the conclusion that Mr Marshall was told by Mr Goldspink to "ride Hohn" and this is confirmed by the surrounding circumstances on the evening, including the two irreconcilable written versions of the facts prepared by Mr Marshall. On a sequential step-by-step process, there will be a finding that the management action was not reasonable. It was submitted for Q-COMP that notwithstanding that Mr Hohn was a worker who sustained an injury to which employment was at least a significant contributing factor, Mr Hohn's application for compensation must fail because his injury was at least partly caused by reasonable management action taken in a reasonable way. In addition to the three stressors identified by Ms Corke in her report, it was submitted that Mr Hohn's stressors extended to include:

• his sense of outrage that he was given what he felt to be a fabricated written warning by Mr Beddow for excess chit chat on the two-way radio on 8 June 2006;

• his sense of outrage at the fact of his having been stood down and driven to the gate by Mr Marshall for allegedly having committed a series of safety violations whilst driving a dump truck on the evening of 9 June 2006, with the result that he lost two hours pay.

Each of these matters qualify as matters falling within "management action" as that expression is used in s. 32(5) of the Act. Harassment and bullying in the workplace by a supervisor is an instance of management action, as are subsequent steps taken by higher management (or failure to take action) to investigate and deal with such matters: Hastings Deering (Australia) Limited v Q-COMP (2007) 185 QGIG 310; Parker v Q-COMP (2007) 185 QGIG 269. According to the submission for Q-COMP, for the appeal to succeed it must be demonstrated that the worker's condition has been completely caused by unreasonable management action or reasonable management action that has been taken or implemented in an unreasonable way. If any aspect of the condition is found to arise out of reasonable management action, then the appeal as a whole must fail. What constitutes "reasonable" for the purposes of s. 32(5) means what is "reasonable in all the circumstances of the case": WorkCover Queensland v Kehl (2002) 170 QGIG 93. It was contended that in the present case, those circumstances must be taken to include the kind of cultural milieu afforded by a shift work open cut coal mining operation in central Queensland. Further, the test of reasonableness does not require perfection, and mistakes or errors or even less than ideal management action, does not, without more, amount to unreasonable management action: Bowers v WorkCover Queensland (2002) 170 QGIG 1. It was submitted that in the specific context of the present case, the steps taken by Mr Beddow and Ms Burey to investigate and deal with matters, once they became aware of Mr Hohn's complaints about Mr Goldspink, should not be assessed against an excessive standard. In assessing the reasonableness of management action, a global approach should only be taken as a last resort, in cases where evidence cannot be made susceptible to proper analysis without recourse to global

664 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 analysis. The present case is not exceptional or difficult, and there is no need to depart from the usual approach where identified stressors are considered individually. In relation to McArthur's case supra:

"...it is now not possible to accept an injury as compensable if it is caused by multiple stressors where at least one or some of these are instances of reasonable management action. Once an injury is in any way touched by RMA, then it becomes completely non-compensable. In this sense there can be no 'mixed aetiology' claims. Put another way, there is no requirement for significance in s. 32(5) and any claim that is touched by reasonable management action - and no matter how peripheral RMA may be as a stressor giving rise to the condition - then the claim as a whole must be rejected because of s. 32(5).".

If there is insufficient evidence to make a factual finding in relation to one among several alleged stressors, then it is impossible to make a finding other than that the stressor amounts to an instance of "reasonable management action reasonably taken" such that the claim as a whole must be rejected: Prizeman v Q-COMP (2005) 180 QGIG 481. Further, in Parker v Q-COMP (2007) 185 QGIG 269, President Hall held that it was impossible to accept a view of s. 32 which permitted the injured worker to rely on the bullying and harassment by a supervisor to connect the injury with employment for the purposes of s. 32(1) and (2), whilst concluding for the purposes of s. 32(5) that the same bullying and harassment ruptured the chain of causation between the reasonable management action reasonably taken, and the injury. It was submitted that versions of events given by Mr Hohn closer to the events in question reveal that his distress was caused by more than the alleged assault by Mr Goldspink, and that the primary focus of the confrontation between Mr Hohn and Mr Goldspink was in relation to excessive chit chat on the two-way. It was reasonable management action for Mr Goldspink to raise this issue, and it is irrelevant that Mr Goldspink did not speak to Mr Hudson about it on the evening of 8 June 2006. In relation to the alleged assault it was pointed out that Mr Goldspink had conceded that he called Mr Hohn a "toad smoking cunt" but otherwise denied assaulting Mr Hohn. It was submitted that given Mr Hohn's general demeanour in the witness box, it is easily conceivable that Mr Goldspink lost his temper with Mr Hohn. However, for a leading hand to call a worker such a thing, even if provoked, cannot amount to reasonable management action. In the circumstances of this case it is unnecessary for the Commission to make any finding in relation to the alleged assault and given the seriousness of the allegation it would be unwise for the Commission to do so in circumstances where there is no testimony from Mr Goldspink. It was submitted that other aspects of the management action complained about by Mr Hohn are instances of reasonable management action or Mr Hohn's perceptions of reasonable management action. In this regard, it was always open for Mr Hohn to leave his letters of complaint with Mr Beddow, who had offered to take them, and who had the requisite level of seniority to deal with these issues. Mr Beddow denied that he refused to take the letters or that Mr Hohn read them to him, and for reasons of his own, Mr Hohn had only wanted these matters to be divulged to Ms Burey. Mr Hohn attempted to see Ms Burey on Friday and could have left the letters for her on that date. The delay in Ms Burey dealing with the letters of complaint is explicable and was not lengthy or unreasonable in the circumstances where Ms Burey was absent to attend medical appointments related to her pregnancy. It was objectively reasonable for Mr Goldspink to speak to Mr Hohn about excessive chit chat on the two-way radio, and for Mr Beddow to issue him with a warning about this matter. Mr Hohn's complaints about this matter are an instance of his own perceptions of reasonable management action, a matter caught by s. 32(5). The evidence in relation to Mr Hohn being taken to the gate part way through his shift on 9 June 2006 was said to establish that this amounted to reasonable management action, which was not detracted from because of Mr Hohn's unhappiness about losing pay. The steps taken by Ms Burey to resolve Mr Hohn's complaint were also reasonable in all the circumstances. Issues for Determination Q-COMP concedes that Mr Hohn, at the relevant time, was a worker as defined in s. 11 of the Act. Further, it was not in issue that Mr Hohn sustained an injury arising in the course of employment. That injury was diagnosed by a Psychologist, Ms Meryl Corke, as Adjustment Disorder with Mixed Anxiety and Depression, and by Doctor Aung, a General Practitioner, as work related stress and anxiety. Both Ms Corke and Doctor Aung were of the view that Mr Hohn's employment was a significant contributing factor in the development of his medical condition, and there was no evidence of any other factor.

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 665

There is a contest over the question of whether the stressors identified by Ms Corke were significant contributors to Mr Hohn's injury. There is also a question of whether there were additional stressors which significantly contributed to the injury other than those identified by Ms Corke. However, regardless of the differences between the parties about which of the alleged stressors significantly contributed to the injury, all of those stressors are within the ambit of the term "management action". The major issue for determination is whether Mr Hohn's injury is withdrawn from s. 32(1) because of the reasonable management exclusion in s. 32(5) of the Act. To determine this issue, it is necessary to identify which of the series of events, interactions and dealings between Mr Hohn and Marshalls significantly contributed to Mr Hohn's injury. It is then necessary to determine whether any of the events, interactions or dealings which were significant contributors, were reasonable management action taken in a reasonable way, or Mr Hohn's perceptions of reasonable management action. Legislative Provisions and Relevant Case Law The legislative provisions relevant to the issues for determination in this appeal are found in s. 32 as follows:

"32 (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 subsection (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 an insurer in connection with the worker's application for compensation.".

Section 32(1) provides the basis upon which an injury is compensable as follows:

• the injury must be a personal injury; • the injury must arise out of or in the course of employment; and • employment must be a significant contributing factor.

An injured worker must, on the balance of probabilities, establish that an injury for which compensation is claimed is within the definition of injury in s. 32(1) of the Act: Lobaj v WorkCover Queensland (2003) 174 QGIG 370. The complete factual situation which must be found to exist before the worker obtains a right under the Act is stated at s. 32, and the onus in establishing the necessary factual situation rests with the worker: Ivey v WorkCover Queensland (1999) 162 QGIG 392 (where President Hall made this observation with respect to s. 34, the forerunner to s. 32). Typically, where the injury for which compensation is sought is a psychiatric or psychological disorder, there are transactions, incidents, dealings or events involving the worker in the workplace, which are said to have caused the injury. These may be referred to in the reports of medical practitioners as "stressors" and for ease of reference I will use that term. It is generally necessary to analyse each stressor - "to tease out the transactions and series of events said to have brought about the injury" - to determine which of the stressors was a significant contributor to the injury so that it can be said that there is a causal or consequential relationship between the worker's employment and the injury: Delaney v Q-COMP (2005) 179 QGIG 471 at 472 (Delaney). In effect, this process may involve a determination of the weight of each incident to establish whether it is significant or a "blemish": Prizeman v Q-COMP (2005) 178 QGIG 197 (Prizeman). In Prizeman the appellant based her claim for compensation on a number of incidents involving a certain Manager, but only some of those incidents were relied on at the hearing of her appeal. President Hall observed that the Magistrate at first instance had considered the items separately and had then entered upon a global consideration of three incidents. Two of these incidents were found by the Magistrate to be "blemishes". When the third issue was considered the Magistrate found that "overall" the appellant had not proved that the incidents were anything other than reasonable management action. The President said that he was unable to conclude that the Magistrate's decision was not open to His Honour.

666 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 I generally accept the submission of Q-COMP in relation to Prizeman. However in my view, the proposition that the case stands for, is that if there is insufficient evidence to make a factual finding that one among several stressors was a significant contributor to an injury, then it is impossible to make a finding other than that stressor amounts to an instance of "reasonable management action reasonably taken", such that the claim as a whole must be rejected. It could also be said that where a nominated stressor is found to be a mere blemish the effect is that the stressor is found not to have been a significant contributor to the injury so that the issue of whether it is reasonable management action does not arise. I do not accept the submission of Q-COMP that a global analysis of stressors should be applied sparingly and as a last resort, or that use of a global approach should be reserved only for those cases where the evidence cannot be made susceptible to proper analysis without recourse to global analysis. In my view such an approach is unduly restrictive and a global approach is open whenever the circumstances outlined by President Hall in Delaney exist. That case stands as authority for the proposition that incidents which in isolation may be viewed as insignificant, may be evaluated on a global basis where they are repetitive incidents with a connection such as subject matter, time or personalties involved. I am also unable to accept the submission of Q-COMP to the effect that once an injury is in any way touched by reasonable management action, then it becomes completely non-compensable. In my view that submission overstates the effect of s. 35(2) of the Act and the decision of President Hall in McArthur's case, in relation to that section. Section 32(5) of the Act does not stand alone. Rather, it operates to withdraw an injury from the definition in s. 32(1) of the Act, in circumstances where a significant contributing factor which would otherwise bring the injury within that sub-section is reasonable management action taken in a reasonable way. In determining whether a particular injury is withdrawn from the definition in s. 32(1) by virtue of the reasonable management action exception in s. 32(5), it is wrong to start by eliminating all work related causes which might be characterised as reasonable management action reasonably taken, and inquire whether any remaining causes might be characterised as significant causes of the injury: Delaney. To take this approach is to start at the wrong end. It should be remembered that in McArthur's case there were two stressors which were significant contributors to worker's injury - although one was more significant than the other - and one was found to be reasonable management action, thereby withdrawing the injury from the definition in s. 32(1). Before s. 32(5) can be considered it is necessary for a finding to be made that a stressor said to be reasonable management action was a significant contributor to the injury in question. Where a series of transactions, incidents, dealings or events (stressors) involving the worker in the workplace occur, s. 35(2) can have no effect unless one or more of these stressors significantly contributed to the injury. An injury cannot be withdrawn from s. 32(1) because a stressor nominated by an injured worker which is found not to have significantly contributed to an injury, is reasonable management action taken in a reasonable way. If the nominated stressor is not a significant contributor it cannot be relied on to bring the injury within s. 32(1), and in such a case s. 32(5) can have no effect with respect to consideration of the nominated stressor. The distinction is important. An injured worker who sustains a psychological injury should not be concerned when consulting a medical practitioner to classify his or her stressors as significant contributors or mere contributors to the injury. An injured worker will simply report what occurred. The fact that an injured worker reports transactions, dealings, incidents or events leading up to or subsequent to sustaining a psychological injury to a medical practitioner does compel a finding that all of these stressors significantly contributed to the injury. After considering all of the evidence, the Commission may find that on balance some of the claimed stressors did not contribute significantly to the injury, or that other stressors not specifically nominated by the injured worker did make such a contribution. Where s. 32(5) operates, an injury can be withdrawn from the definition in s. 32(1) in circumstances where there are two or more stressors which constitute management action both of which contributed significantly to the injury, and one of those stressors is reasonable management action taken in a reasonable way. This is the case notwithstanding that the other stressor may be management action which is unreasonable. Conclusions Q-COMP concedes that Mr Hohn qualifies as a worker as defined in s. 11 of the Act. Q-COMP also submits that there is sufficient evidence for the Commission to find that Mr Hohn sustained an injury for the purposes of s. 32(1) of the Act. I am satisfied that this is the case and that Mr Hohn suffered an Adjustment Disorder with Mixed Anxiety and Depression. I am also satisfied that altercation between Mr Hohn and Mr Goldspink at the conclusion of the night shift commencing on 8 June 2006, was a significant contributing factor to Mr Hohn's injury. Indeed, this incident was the most significant contributing factor to the injury. It is clear from the evidence that Mr Goldspink called Mr Hohn a "toad smoking cunt". I do not accept that there is any workplace in Australia where the cultural milieu could reasonably include any worker being referred to in these terms. There is nothing about heavy industry such as the mining industry which would cause me to come to a view that such language should be subject to some sort of adjustment/accommodation to account for the context in which the language was used. While I accept that Mr Hohn and other employees may have used inappropriate

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 667

language in the workplace, Mr Goldspink was a supervisor acting with ostensible authority on behalf of Marshalls, and as such should have known better than to engage in such behaviour. Mr Goldspink should have been actively engaged in preventing such language from being used. I am also satisfied that this incident went beyond a verbal altercation and involved something more on the part of Mr Goldspink than the abuse he heaped on Mr Hohn. In this regard, I accept the evidence of Ms Corke who said that something in the ilk of what Mr Hohn reported to her must have occurred in order for Mr Hohn to have been so distressed. It is also unlikely, on my observations of Mr Hohn while giving his evidence, that a verbal altercation with Mr Goldspink would have caused him to be distressed to the point where on the next day he was vomiting into a rubbish bin prior to going to work or was suffering the kind of symptoms that he described to Ms Corke on an ongoing basis. Given that Mr Goldspink did not give evidence, Mr Hohn's version of events is uncontested and I accept it. In my view, the question of whether Mr Goldspink was raising an issue of chit chat on the two-way radio, or a day off taken by Mr Hohn, or both, is irrelevant. I do not accept that any inconsistencies between the evidence given to the Commission by Mr Hohn and what he told other employees or his medical practitioner is an indication of lack of credit on the part of Mr Hohn. In all probability these inconsistencies are more likely the result of Mr Goldspink's behaviour towards Mr Hohn during the altercation and the distress that Mr Hohn suffered as a result. I do not accept that Mr Hohn committed a safety breach by engaging in excessive chit chat on the two-way radio during the shift commencing on 8 June 2006. Like the tango, excessive chit chat takes two, and if there was excessive chit chat it is more probable than not that both employees would have been spoken to. It is also more probable than not that the issue would have been raised with Mr Hohn at the time it occurred, rather than at the end of the shift. There was also evidence from Mr Hudson that any talking he engaged in on the two-way radio with Mr Hohn during that shift, was appropriate and necessary for the purpose of training. There was no evidence to the contrary. In any event regardless of whether Mr Hohn committed a safety breach, Mr Goldspink's conduct was appalling. This would have been so even if Mr Goldspink's conduct only amounted to verbal abuse, rather than the more serious conduct which in my view probably occurred. Even if Mr Goldspink was justified in raising the issue of excessive chit chat on the radio with Mr Hohn, I do not accept that the appropriateness of the issue being addressed can be viewed in isolation from the manner in which Mr Goldspink conducted himself. The subject of the discussion and the manner in which it was conducted should be considered on a global basis, given that they are joined by subject matter, personality and time. The totality of Mr Goldspink's conduct was not reasonable management action. I am satisfied that the difficulties encountered by Mr Hohn in having his complaints about Mr Goldspink dealt with and investigated, significantly contributed to Mr Hohn's injury. I accept that Mr Hohn's distress about the manner in which he claimed to have been treated was increased because of the warning he was given about chit chat on the two-way radio, and being stood down for alleged safety violations, also contributed to his injury. However, in my view, these incidents are part of Mr Hohn's larger and more general concern about his complaints not being dealt with appropriately and these matters should be considered globally. They are repetitive in the sense that Mr Hohn spoke to Mr Beddow on two occasions, and tried on three occasions to see Ms Burey, and are connected by subject matter. All of these incidents occurred in a very short space of time, effectively a 24 hour period, and essentially involved the same personalities. If the warning and suspension initiated by Mr Marshall are considered in isolation, I did not find Mr Marshall's evidence compelling. Mr Marshall wrote two case notes about the same incidents, and they are inconsistent. The two case notes are clearly two separate documents and each could stand alone. Mr Marshall's explanation that there were two pages because he has big writing is, on the face of the documents, unconvincing. On balance, I do not accept that there was justification for suspending Mr Hohn on 9 June 2006. It is also the case that by the time this suspension occurred, Mr Hohn had made a serious allegation about his supervisor to Mr Beddow, and notwithstanding this had been sent off to work in an area where that supervisor was also working. In all of the circumstances these incidents were not reasonable management action. I do not accept Mr Hohn's view that his complaint was not satisfactorily resolved by management, and in particular the fact that Mr Hohn was not given an apology, was a significant contributing factor to his injury. The evidence clearly establishes that by the time this point was reached, Mr Hohn had sustained an injury due to the altercation with Mr Goldspink and the manner in which his complaint was dealt with by management of Marshalls immediately following that altercation. The fact that Mr Hohn did not receive an apology may have contributed to the injury, but that contribution was not significant. This is clear from the report of Ms Corke, and the attached statement of Mr Hohn which indicates that prior to being told by Ms Burey that there would not be an apology forthcoming from Mr Goldspink, Mr Hohn claimed to have been unable to go to work due to dry retching and feeling nauseous. While Ms Corke agreed under cross-examination that this issue contributed to Mr Hohn's injury, she did not say that it was a significant contributor. Ms Corke also said that the most significant damage was done on 8 June and the few days immediately following, and that if those incidents had not occurred, subsequent incidents would not have had such an impact.

668 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007 There is no question that Mr Goldspink's conduct towards Mr Hohn, which occurred in the early hours of 9 June 2006, was management action. It is well established that conduct such as bullying and harassment, when engaged in by a supervisor, comes within the meaning of the term "management action: Hastings Deering (Australia) Limited v Q-COMP (2007) 185 QGIG 310; Parker v Q-COMP (2007) 185 QGIG 269. As Q-COMP properly concedes, a leading hand speaking to a worker in the terms adopted by Mr Goldspink on that date, cannot amount to reasonable management action. I am also unable to accept that it was reasonable management action for Mr Goldspink to have raised the issue in the first place. Firstly, for the reasons set out above, I am not satisfied that Mr Hohn actually engaged in excessive chit chat. Secondly, for the reasons set out above, even if Mr Goldspink did have some basis to raise the issue of excessive chit chat on the two-way radio with Mr Hohn, I do not accept that the manner in which the issue was raised can be separated from the issue itself and in my view the way in which Mr Goldspink behaved taints the entirety of the management action with unreasonableness.

I do not accept that any of the incidents surrounding Mr Hohn's attempts to report Mr Goldspink's conduct towards him were reasonable management action. Mr Beddow wrote a letter of warning to Mr Hohn before properly investigating whether it was warranted. It should have been apparent to a reasonable person in Mr Beddow's role that the other employee working with Mr Hohn had not been warned. Mr Beddow readily conceded this under cross-examination. At almost the same time that Mr Goldspink spoke to Mr Beddow about Mr Hohn resulting in Mr Beddow giving Mr Hohn the warning letter, Mr Hohn reported to Mr Beddow that Mr Goldspink had intimidated him, called him a "fucking cunt", and pulled him by the hand. Mr Beddow's denial that Mr Hohn reported these matters to him is at odds with the statement he gave to WorkCover. The terms of that statement are also consistent with the contents of the letter which Mr Hohn claimed to have read aloud to Mr Beddow, contrary to Mr Beddow's evidence. It is more probable than not that Mr Hohn did read the allegations in his first letter to Mr Beddow. That Mr Beddow gave some credence to the allegations made by Mr Hohn is apparent from the fact that he told Mr Goldspink to leave Mr Hohn alone. In my view, this was not a reasonable response at that point given the seriousness of the allegations. Even if Mr Hohn was insisting on giving his letter of complaint to Ms Burey, Mr Beddow should have immediately responded by offering support and assistance to Mr Hohn to ensure that Mr Hohn knew that his complaint was taken seriously. Further, Mr Beddow should have suspended the warning process to enable a proper investigation to take place. In my view any reasonable Manager would have taken these steps. Mr Hohn's allegations were serious and I can see no evidence that they were treated accordingly by Mr Beddow. An employee making an allegation of the type made by Mr Hohn, in the state of distress Mr Hohn was in, should not have to encounter the difficulties which were placed in the path of Mr Hohn. The management action in connection with the submission of Mr Hohn's grievance was not reasonable and it was not taken in a reasonable way. I am also of the view that the flaws in the investigative process and the timing of the warning given to Mr Hohn should have sounded alarm bells when Ms Burey came to investigate Mr Hohn's allegations. Marshalls is a company large enough to have several layers of management. A Senior Manager, Mr Beddow, was confronted with a situation which would have placed a reasonable Manager on notice that further investigation was warranted. That information should have been relayed to Ms Burey to inform her investigations. This did not occur and the entire investigation process was tainted. This is clear from the letter sent to Mr Hohn on 16 June 2006, making it clear a view had been formed that the altercation was verbal not physical as reported by Mr Hohn, and that it had occurred in the context of Mr Goldspink disciplining Mr Hohn. These conclusions were contrary to the allegations made by Mr Hohn and they were reached without any discussion with Mr Hohn. I accept that by the time Ms Burey had an opportunity to consider matters raised by Mr Hohn it was not possible for her to speak with him. I also accept that Ms Burey had legitimate reasons for any delay in dealing with the matter. However, I am also of the view that matters reached this stage because Mr Beddow did not respond appropriately and reasonably to Mr Hohn's allegations on 9 June 2006. The test of reasonableness does not require allegations made by an employee to be investigated with the forensic thoroughness that would be employed by police. Reasonableness does not equate with perfection. It is also the case that reasonableness does not equate with industrial fairness. As President Hall has pointed out while the concept of industrial fairness is not a dominant consideration, and cannot improve on the test of reasonableness, considerations of fairness will always be relevant: Delaney v Q-COMP (2005) 178 QGIG 197 at 199. What is required is reasonableness in all of the relevant circumstances. The case of Rachel Nicole Parker v Q-COMP (2007) 185 QGIG 269 can be distinguished from the present case. In that case, the appellant carried a dormant psychotic state. President Hall noted that there was an absence of independent evidence to support the appellant's allegations and behaviour on the part of the appellant (hearing voices) which would have caused a prudent Manager to exercise caution in taking action against the supervisor alleged to have bullied the appellant. Parker was also a case where the Manager took a significant number of steps to support the appellant and to investigate her allegations. In the present case, Mr Beddow did not consider independent evidence, such as the absence of a warning to the other employee involved in the alleged excessive talking on the two-way radio, and did not take any steps to support Mr Hohn in the face of serious and detailed allegations against his supervisor. Further, at almost the same time he became aware of those allegations, Mr Beddow caused a warning to be issued to Mr Hohn at the behest of the

9 November, 2007 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 669

supervisor against whom the allegations had been made. There was also nothing to suggest that Mr Hohn had any pre-existing psychological condition that would have caused a reasonable Manager to exercise caution before taking action with respect to his allegations of harassment and intimidation. Mr Hohn had an altercation with his supervisor. Mr Hohn detailed his allegations to a more senior Manager, Mr Beddow. Those allegations were serious and involved bullying, harassment, intimidation and assault. That Manager did not take reasonable steps to ensure that Mr Hohn was offered support and the complaints were immediately responded to. The investigation of the complaints was flawed because Mr Hohn was not afforded procedural fairness and the outcome was determined in the absence of any discussion between Mr Hohn and Ms Burey. While delay on Ms Burey's part in dealing with the allegations was understandable, any difficulty in this regard could have been easily alleviated if Mr Beddow had responded reasonably when the allegations were first made by Mr Hohn. Even if the failure to resolve Mr Hohn's complaint to his satisfaction did contribute significantly to Mr Hohn's injury, in all of the circumstances the response was not reasonable. It is not sufficient at this stage to suggest that an apology would have been inappropriate. The fact remains that some action to address and resolve Mr Hohn's concerns should have commenced at an earlier stage than it did. The response that was ultimately provided to Mr Hohn was not reasonable because it was formulated on the basis that Mr Hohn's allegations were found by Ms Burey not to have been substantiated, without affording Mr Hohn the opportunity to have an input into the investigation and the proposed resolution. I uphold the appeal. I set aside the decision of Q-COMP dated 19 December 2006, and determine that Mr Hohn's claim for compensation is one for acceptance. I order accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2007 25 and 26 July

22 August (Respondent's Written Submissions) 27 September (Applicant's Written Submissions)

Appearances: Mr G.C. O'Driscoll of Counsel instructed by Mr C. McCracken of Hall Payne Lawyers for the applicant. Mr A. McLean Williams of Counsel instructed by Ms L. Booth of Q-COMP. Released: 31 October 2007

CONTENTS

(Gazette No. 14 —pp. 649-670)

INDUSTRIAL COURT NOTICES

Page

DECISIONS—Richard Foster AND

Rinker Australia Pty Ltd ................................ 649-655

Craig John Hohn AND Q-COMP.........................656-669

670 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2007

© The State of Queensland (SDS Publications) 2007Copyright protects this publication. Except for purposes permitted by the Copyright Act, reproduction by whatever

means is prohibited without the prior written permission of SDS Publications. Inquiries should be addressed to SDS Publications, Locked Bag 500, Coorparoo, DC, Q, 4151.

_____________________________BRISBANE

Printed by Government Printer, Vulture Street, Woolloongabba9 November, 2007