CITATION: State of Queensland - Department of Education and Training AND Q-COMP and Raymond Rex (WC/2011/72) - Decision <

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1 CITATION: State of Queensland - Department of Education and Training AND Q-COMP and Raymond Rex (WC/2011/72) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act s appeal to commission State of Queensland - Department of Education and Training AND Q-COMP and Raymond Rex (WC/2011/72) COMMISSIONER THOMPSON 20 February 2012 Introduction DECISION [1] On 11 March 2011, the State of Queensland, Department of Education and Training (Appellant) filed with the Industrial Registrar a Notice of Appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 25 January The decision of Q-COMP was to set aside the decision of the Insurer (WorkCover) to reject an application by Raymond Rex (Rex) for Workers' Compensation therefore accepting the claim. The injury subject to the claim was of a psychiatric/psychological nature. [2] In accordance with s. 549(3) of the Act, Rex became a party to the Appeal. Relevant Legislation [3] The following is the relevant section of the Legislation: "32 Meaning of injury Nature of Appeal (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 the Authority or an insurer in connection with the worker's application for compensation.". [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls to the Appellant (see Hans Continental Smallgoods Pty Ltd v Q-COMP 1 per Bloomfield DP (then Commissioner)). Standard of Proof [5] The Commission, after consideration of the evidence, material and submissions before the proceedings, must be satisfied on the balance of probabilities that a person, if found to be a Worker, did suffer a personal injury arising out of, or in the course of employment, and if the employment is a significant contributing factor to the injury. Further, in respect of a psychiatric or psychological disorder, an injury cannot arise out of reasonable management action taken in a reasonable way by the employer in connection with the Worker's employment. Evidence [6] The Commission took evidence from 11 witnesses in the course of the proceedings. 1 Hans Continental Smallgoods Pty Ltd v Q-COMP [2009] 190 QGIG 82

2 2 [7] The Commission, in deciding to précis the evidence of each of the witnesses, notes that all evidence has, for the purposes of this decision, been considered in its entirety. Witness Lists [8] The witnesses for the Appellant were as follows: Neil Clarkson; Donna-Maree O'Connor; Douglas Egerton; Dr Frank Varghese; Wayne Licciardello; and Joann Pyne. [9] The witnesses for Rex were as follows: Raymond Rex; Patricia Rex; Richard Burchill; Dione Rodgers; and Helen Ramoutsakis. [10] Q-COMP exercised a discretion not to call witness evidence. Appellant [11] At the outset of the hearing, a number of concessions were made on behalf of the Appellant: Clarkson Raymond Rex, for the purposes of s. 11 of the Act, is a Worker; Rex suffered a pre-existing condition, but that pre-existing condition was not a chronic disorder of adjustment with mixed anxiety and depressed mood (as had been previously diagnosed) but was major depression; and It was accepted that the telephone call (of 18 December 2009) giving Rex a number of options as to his future aggravated his condition of major depression. That whilst the telephone call was said to be reasonable management action taken in a reasonable way, it was accepted that employment in relation to that phone call was a significant contributing factor to Rex's injury. [12] Clarkson is the Manager of Workforce Capability for the Tropical North Institute of TAFE (having also held the position in the 2006 to 2009 period) and his responsibilities include: human resources processes, policies, implementation, recruitment, staff development opportunities, performance management and workplace health and safety. [13] He became aware in the latter half of 2009 of the need to relocate the Mossman TAFE Campus from the Mossman State School to another location but had no direct role in the process involving the relocation. [14] Clarkson gave evidence that Rex was a TAFE teacher who had been engaged to teach the Conservation and Land Management (CALM) program and, in 2009, had returned to work on a suitable duties program following two workplace accidents that occurred in 2006 and [15] In November 2009, TAFE required Rex to submit to a medical assessment in accordance with provisions of the Public Service Act 2008 to determine his fitness for work. An independent medical examination was conducted in Cairns and a report provided to TAFE (dated 10 December 2009) [Exhibit 5]. Upon reading the report, TAFE management formed a view that as Rex was unlikely to resume the duties of a full-time teacher, it was decided to communicate with him about future employment options he may be able to undertake. [16] On 17 December 2009, telephone contact was made with Rex who advised that it was not a suitable time for him, making arrangements for the contact to take place the following day between 1.00 p.m. and 2.00 p.m. At the time Clarkson made comments to the effect "Look, Ray, we need to - as a result of Dr Hayne's report, we need to have a discussion with you around the possibilities of what work you could be able to do in light of that report" [Transcript p. 2-15]. The following day at the designated time, Clarkson, Egerton and Licciardello telephoned Rex at which time a number of options were put to him which included: undertaking some activities in terms of the CALM program; curriculum writing;

3 3 medical re-deployment; part-time work; and ill-health retirement [Transcript p. 2-16]. [17] According to Clarkson, Rex asked a limited number of questions with him being informed that further contact would be made in January 2010 to see how he was progressing and to see whether he had "thought through any of those options, or had a preference for any of those things that were put to him" [Transcript p. 2-16]. The telephone call had not ended "acrimoniously" with Rex saying at the conclusion of the telephone call "Thank you for letting me know all these things" [Transcript p. 2-17]. [18] Under cross-examination, Clarkson recalled that Egerton had spoken to him on a number of occasions about concerns he had for Rex's future, but did not recall ever being told that he was suffering depression [Transcript p. 2-18]. He accepted that he was present at a meeting of the Executive team in September 2009 where discussions occurred around the relocation of the Mossman TAFE Campus and conceded that the future level of service would be "smaller" [Transcript p. 2-26], however he did not accept that it would have been possible to close the Campus because of community obligations and for political reasons [Transcript p. 2-28]. [19] Clarkson was aware that in October 2009 Rex would not have been able to take a position in Cairns (if one had been offered) due to difficulties with prolonged driving [Transcript p. 2-34]. Also in November 2009 he was aware of the physical limitations facing Rex but continued to have no knowledge around issues relating to depression [Transcript p. 3-42]. [20] On his understanding of Rex's condition, on or around 18 December 2009 Clarkson gave evidence that in retrospect he may have "checked" a little more into where Rex was in his own mind at the time. However, in terms of the conversation on that day, he would not have done anything "greatly different" [Transcript p. 2-57]. In the course of the telephone call, Rex was informed that the diagnosis of Dr Haynes was that it was fairly unlikely that he would return to full-time duties as a CALM program teacher or as an administration employee and a number of options that included part-time work, deployment to another government department (unlikely to happen in Mossman) [Transcript p to 2-62]. According to Clarkson the purpose of the telephone call was to give Rex options for his consideration if he could return to work in the first semester of 2010 [Transcript p. 2-65]. Clarkson could recall that Cairns was mentioned as a place where Rex may be offered work, but had no recall of a suggestion that Rex might undertake travel to Yarrabah. Other matters discussed included writing of curriculum and the possibility of early medical retirement [Transcript p. 2-65, 2-66 and 2-67]. Rex made a limited contribution during the course of the call. [21] In re-examination, questions were put around Rex's status as a teacher as opposed to the administrative duties undertaken by him. In respect of a number of s from Rex about his own and other employees stress issues, Clarkson confirmed that he had no prior knowledge of those s [Transcript p ]. His recollection of the phone call to Rex on 17 December 2009 was that Rex did not express any concerns about his health condition [Transcript p ]. Dr Varghese [22] Dr Varghese, a Consultant Psychiatrist, prepared a report in relation to Rex upon the request of the Appellant. The report dated 20 October 2011 was tendered in the proceedings [Exhibit 7] along with the letter of instruction to Dr Varghese dated 7 October 2011 [Exhibit 8]. [23] The letter of instruction made reference to the Appeal against the Q-COMP decision, and the factors upon which the Appeal was being argued. Details were provided in respect of: additional duties; closure notification; lack of communication; future employment options; additional non-tafe related stressors; previous Workers' Compensation applications by Rex; and medical evidence. [24] The request of Dr Varghese was to address the following: "1. In your opinion, does Mr Rex suffer from a psychiatric or psychological condition? 2. If he does have a psychiatric or psychological condition, please advise of:- (a) the primary diagnosis of the condition, detail, exact nature and severity of the condition, and duration.

4 4 (b) (c) (d) (e) in your objective opinion, and on the balance of probabilities, is Mr Rex's condition simply a continuum of his pre-existing psychiatric or psychological condition. in your objective opinion, and on the balance of probabilities, is Mr Rex's condition an aggravation or exacerbation of his pre-existing psychiatric condition? given his pre-existing condition, the ongoing treatment he was receiving at the time of the nominated factors and personality factors (including the obsessional personality traits diagnosed by Dr Woolridge), on the balance of probabilities, in your objective view, did his injury arise out of, or in the course of his employment with TAFE or was it a continuum of his prior condition or the result of other non-work factors. to the extent to which the development of the injury was caused or contributed to by Mr Rex's nominated Factor 1 - Additional duties? i. if so, was Mr Rex's nominated Factor 1 a significant contributing factor to the development of his condition? (f) the extent to which the development of the injury was caused or contributed to by Mr Rex's nominated Factor 2 - Closure notification? i. if so, was Mr Rex's nominated Factor 2 a significant contributing factor to the development of his condition? (g) the extent to which the development of the injury was caused or contributed to by Mr Rex's nominated Factor 3 - Lack of communication? i. if so, was Mr Rex's nominated Factor 3 a significant contributing factor to the development of his condition? (h) the extent to which the development of the injury was caused or contributed to by Mr Rex's nominated Factor 4 - Future employment options? i. if so, was Mr Rex's nominated Factor 4 a significant contributing factor to the development of his condition? (i) (j) (k) (l) in your objective view, on the balance of probabilities, did any of the personal stressors identified by Mr Rex (including those listed about at page 6) cause or contribute to his condition. in your objective opinion, taking in to consideration Mr Rex's pre-existing psychological condition, and the personal stressors from which he was suffering (including those listed above at page 6 above), on the balance of probabilities, do you consider that Mr Rex's employment with TAFE was a significant contributing factor to the development of his condition? on the basis of your examination of Mr Rex, and the material provided to you, do you consider that Mr Rex suffers from a pre-existing personality disorder. If so, in your objective view, on the balance of probabilities, do you consider that Mr Rex's personality disorder caused or contributed to his condition. If so, please describe the extent to which you consider that Mr Rex's personality disorder contributed to his condition. In your objective opinion, and on the balance of probabilities, in light of his pre-existing psychological or psychiatric condition, his personality factors including his obsessional personality traits diagnosed by Dr Woolridge and the stressors described by Mr Rex (including those listed at page 6 above), to what extent did the condition arise out of, Mr Rex's perception of management action being taken by the TAFE against him. (m) In your objective opinion, and on the balance of probabilities, in light of his pre-existing psychological or psychiatric condition, his personality factors including his obsessional personality traits diagnosed by Dr Woolridge and stressors described by Mr Rex (including those listed at page 6 above), to what extent did the condition arise out of, Mr Rex's expectation of management action being taken by the TAFE against him. 3. Any other matters you consider relevant in your diagnosis?". [25] Dr Varghese provided a comprehensive report (of some 23 pages in length) which commenced with a number of historical issues being presented by Rex which included both matters of a personal nature as well as work related events.

5 5 [26] In regards to the problems that he considered had led to his psychiatric difficulties, he had identified starting to get "snippets of information" in the second half of 2009 that the Mossman State School wanted their facilities back and, despite ing TAFE authorities, his questions were "brushed aside". Staff numbers had been reduced and he was overloaded with office work. In September 2009, two TAFE management staff met with the employees in Mossman where they advised they were looking for smaller premises but were not told that they were closing down. The employees during this time were not advised as to what was happening which he (Rex) considered to be disrespectful. [27] On Friday 11 December 2009, Rex was rung by the facilities manager and informed that "the TAFE was to be closed and things were to be put in storage until a new facility was found". He was told to organise everything being packed up and whilst not in charge of the Mossman TAFE Campus, he nevertheless did everything that was asked of him. On 18 December 2009 he stated that prior to participating in the telephone conference with the TAFE management, he had returned from a WorkCover conference in Brisbane and was experiencing the following: worried and confused about what was happening; feeling dejected; feeling bad emotionally; and feeling weighed down. [28] He thought the purpose of the telephone call was about the future of the TAFE but was instead told "What are we going to do with you". He was given a number of options to consider and was told he had a month to think about them. The options were: working at Yarrabah; work at Cairns TAFE; course writing; and medical retirement. [29] At the conclusion of the phone call, he informed Dr Varghese that he had "crashed", thought he was a "thorn in their side", and had bad thoughts about his "worth". When requested to outline the symptoms he was having at the time he ceased work, he gave the following account: "He says he felt 'numb' and felt 'useless'. 'I sunk to a situation of self blame' and 'I worried about what people thought of me'. 'I felt I had let down the community' and 'that people would think this'. He describes himself as being 'down in the dumps' all day, everyday and he could not be cheered up. I noted decreased interest and marked decrease in concentration. 'I was unable to focus'. He describes marked decrease in energy.". [30] The report under the heading "Mental State Examination" noted the following comment: "I note that the principle stressor he reports is the uncertain future of Douglas Campus of TAFE and the events leading up to him being asked about his future with respect to work. A significant issue for Mr Rex appears to be an interview he had with an Occupational Physician where he was asked about medical retirement. He is concerned about his future and job security.". [31] Further on in the report, under the heading "Diagnostic Issues" a range of commentary was provided that included the following excerpts: "With a developing depressive illness it seems that Mr Rex became increasingly concerned about his future even if there may have been good reason. In this context the issues around the probable closure of the Mossman TAFE Campus became a major issue for him. In the setting of his depressive cognitions with a tendency to catastrophise and to see things negatively, being told by an Occupational Physician that he should consider medical retirement, followed by a phone call to the effect that he would not be able to work in his usual capacity and he needed to consider options for the future, was a major psychological event leading to a deterioration in his depression. Unfortunately Mr Rex was not treated with antidepressants essential for his condition until It is likely that he was significantly disabled with depressive symptoms. I note that he had in fact responded to antidepressants although there remain residual depressive features. There should be further improvement with treatment and time.". [32] Dr Varghese, in the preparation of the report, also pursued a range of previous medical reports and opinions pertaining to Rex's health and to previous workplace injuries. Commentary in terms of his consideration of this material included:

6 6 "In the context of Major Depression it seems that the issues to do with whether the TAFE campus was to be closed or moved became a major issue for Mr Rex exacerbating his depression with a cycle of depressive cognitions, catastrophisation and resultant increased depression.". [33] In responding to the questions Dr Varghese had been required to address, he found that Rex did have a psychiatric condition and that major depression had been developing insidiously over several years, since around Rex did not appear to have a history of pre-existing psychiatric or psychological condition at the time of his 2006 physical injury, however if the point of reference was 2009, then his condition on ceasing work would have been a continuation of a pre-existing injury which had been aggravated. [34] There was, in the view of Dr Varghese, an exacerbation of major depression which arose during the course of his employment with TAFE as against a simple continuation of his prior condition and whilst other non-work related factors were certainly involved including his medical condition, it was considered that there was an aggravation of his already present major depression. [35] On the matters of what were described in Exhibit 8 as "Additional non-tafe related stressors" he was inclined to the view that Rex's already present major depression was aggravated and issues related to the "probable closure or degrading" of the TAFE were a significant contributing factor and that the nominated stressors all played a part in exacerbating Rex's depressive condition. There was no clinical data available that indicated Rex suffered from any "pre-existing personality disorder". [36] On Rex's perception of management action being taken by TAFE against him, it was the opinion of Dr Varghese that his perception was affected by the already major depression and the depressive cognitions that accompanied it and the subsequent development of a depressive spiral which results in certain perceptions or misperceptions which further aggravate the depression. It was quite likely that Rex's depressive cognitions were already present as a result of depression which lead to an expectation of negative things happening which would include actions taken by TAFE against him accentuating the depressive spiral. [37] In concluding his diagnosis, Dr Varghese, on page 23 of the report, stated: "A question that arises is whether management's action with respect to the closure/downsizing of the TAFE was reasonable management action carried out in a reasonable manner. This would also apply to the question of discussion of options including retirement options. This issue is of course a question of fact that needs to be determined by legal authorities. It is inappropriate for a medical evaluator to make judgements of fact. However what I would say is that given Mr Rex was suffering from Major Depression with resultant negative depressive cognitions, his depression would have been aggravated, whether or not management's actions were reasonable and carried out in a reasonable way.". [38] In cross-examination, Dr Varghese was asked to comment on whether the raising of early medical retirement in the telephone conversation of 18 December 2009 would have the status of being a significant contributing factor. He replied: "Yes, I would. Because I think Mr Rex is in a state of significant depression is probably the same data from the prison, like a depressive cognition: Everything looks bleak, the future looks bleak, he can't plan; he thinks he's - he's useless. And the concept of medical retirement when he is - can't be - when the - asked by that for - by the - by Dr Haynes, that was very distressing for him because he'd never considered that as an option, and subsequently if this was put to him as an option, then his fear for the future, his fear for his job would exacerbate his depression." [Transcript p. 2-73]. [39] Further in cross-examination, it was put that if Rex had been unaware of the purpose of the appointment with Dr Haynes and also unaware of the questions to be asked would this have had a relevant bearing in his reaction to the 18 December 2009 phone conversation. This was accepted by Dr Varghese [Transcript p. 2-74]. [40] In re-examination, Dr Varghese was taken to Rex's reaction to having to consider (amongst a number of options) early medical retirement. Dr Varghese stated that with Rex already significantly depressed, ruminating about his future concerns, the moving or closure of the Mossman TAFE Campus, he would not have processed the information in the way a well person would have. Dr Varghese went on to say: O'Connor "So the option may well have been entirely reasonable - that's not for me to say - and the option may have been put to him in an entirely reasonable manner, but he would have still processed it from the - from the perspective of a depressed mind." [Transcript p. 2-77]. [41] O'Connor, the Deputy Institute Director for the Tropical North Institute of TAFE, manages the education and training side of the organisation in the four facilities where training is delivered. In 2009 the bulk of the training

7 7 delivery was at the Cairns Campus, however there were several regional Campuses' operating, one of which was Mossman. [42] The Mossman TAFE Campus, at that time, was located at the Mossman State School, with the bulk of courses being delivered via predominantly video conferencing. The remainder of the courses were delivered by casual and temporary teachers as well as Rex who was a permanent teacher located at the Campus. During 2009 there was also one administrative support staff member employed on site. [43] In mid July 2009, TAFE were advised that they needed to vacate the premises in time for the commencement of the 2010 school year. The notification came as a surprise as the facility had been provided "rent free" and was regarded as a good arrangement for TAFE. The leadership team discussed the various options and, as most of the options had a cost component, the issues were raised with the hierarchy in Brisbane. In or around September 2009, staff at Mossman were advised that it was not the intention to close the Mossman TAFE Campus and search was underway for new accommodation. A number of the management team (including Pyne and Licciardello) went to Mossman to speak to staff and attend a community meeting in an effort to allay any fears that the Campus would be closing and to advise of the various options being explored at the time. [44] In late November or early December 2009, TAFE were advised that they now needed to vacate the school premises at the start of the school holidays so that renovations could be undertaken during the school holidays. O'Connor, at that time, travelled to Mossman to assist with packing up equipment and determining what needed to be returned to Cairns and what required storage in Mossman. On these visits to Mossman, the witness did not have a conversation with Rex as he was on "non-attendance time" which is available to teachers to assist with their preparation for the next semester. Even though Rex was not teaching at the time and had not taught in 2009, he was allowed to access this time. [45] O'Connor recalled having a telephone conversation with Rex in 2009 (probably after the community meeting) where she reassured him that there was no intention to close the Mossman TAFE Campus and informed him of the options that were being considered for the future of the Campus. O'Connor formed the view that Rex appeared not to trust TAFE but at the conclusion of the conversation stated he was pleased that there had been a conversation. In the course of the call, Rex had not raised any concerns about suffering from depression or stress because of abuse he may have been suffering at the hands of the Mossman community [Transcript p. 3-7]. [46] Under cross-examination, O'Connor gave evidence that alternate premises were found in 2010 at the Community Centre where there was access to two rooms each of which were shared. TAFE had arranged for the installation of video conferencing equipment which was to be used for the purposes of conducting courses. In the period between September 2009 and December 2009, O'Connor indicated that she had no personal knowledge of Rex having either been distressed or suffering from personal stress and accepted that during that period she had been involved in discussions about the work capacity of Rex and of work that may be offered to him [Transcript p. 3-14]. [47] In relation to questioning around the medical reports relating to the condition of Rex, the evidence was that those records were treated with complete confidentiality to the extent that she would never be given access to those particular records [Transcript p. 3-15]. O'Connor acknowledged that when TAFE was considering a range of options around the future of the Mossman TAFE Campus, that the closure of the Campus would have been one of those options, however her understanding was that there had never been a request made to the Minister to close the Campus [Transcript pp and 3-19]. [48] O'Connor had recalled reading articles published in the local media in Mossman about the potential closure or otherwise of the Campus, but she was not aware that the closure was a matter of controversy within the community [Transcript p. 3-20]. She was not aware that Rex had been passing on information by way of to Licciardello or Egerton as early as 9 September 2009 about the toll that the possible closure of the college was having upon staff members at Mossman [Transcript p. 3-21]. [49] When questioned on a briefing document that had been prepared on 6 October 2009 to go to the Minister and of comment contained within that document of the possible relocation of a permanent teacher (Rex) to another Campus, O'Connor accepted that the offer of work would be at another Tropical North Institute of TAFE Campus other than at Mossman [Transcript p. 3-22]. [50] On the matter of what procedure would be appropriate for a situation where a worker was claiming to have "crashed", O'Connor indicated that it would not have been reasonable to have involved herself in matters of that nature and they should be discussed with the Rehabilitation Officer, the treating Medical Practitioner and the Worker in question [Transcript p. 3-22]. [51] O'Connor had been aware that independent medical advice was being sought to determine the future working arrangements of Rex and had herself signed on behalf of the Institute Director, a memorandum to the Assistant Director of Human Resources in Brisbane seeking approval to undertake the examination. O'Connor indicated that she had not made any enquiries about the content of the memorandum and relied upon the content having

8 8 been prepared by the Organisational Health staff within TAFE indicating that her own knowledge in respect of terms such as "adjustment disorders" was limited and that she accepted from the correspondence that Rex was suffering a level of depression and anxiety which she believed was subsequent to physical injuries which he had sustained. [52] O'Connor recalled seeing an from Rex on or around 6 October 2009 where Rex had advised that his son had been severely bashed and O'Connor accepted that, in those circumstances, Rex would be fragile and emotionally distressed. [53] O'Connor agreed with the proposition that there was no certainty as to the future arrangements for the conduct of the Mossman TAFE Campus at the time the school term ended in However, in relation to what Rex would have known at the time he was commencing his break, O'Connor indicated that he would have known from communications in October and November 2009 that they were going to have to move the Campus, it is just that it had happened earlier than what had been expected, but at the same time an explanation would have been provided to Rex in respect of the change in dates. [54] In re-examination, when taken to the of 6 October 2009, O'Connor did not have any concerns about whether the contact between a journalist and Rex had had any impact on his mental state and indicated that in terms of her assessment, he actually seemed quite calm and was offering to give assistance and help in respect of dealing with the pending community meeting. [55] In relation to a decision by Rex to travel to Brisbane on 9 September 2009 to collect an award, O'Connor indicated that it was definitely the decision of Rex to travel to Brisbane and that it would have been possible to have sent someone else if there were to be difficulties in terms of the impact the travel might have upon him. [56] On four occasions when she had visited Mossman between October 2009 and January 2010, O'Connor gave evidence that at the time the Campus was fairly quiet and that, in the course of the day, there may have been three or four people attend the reception area of the Campus, none of whom were abusive [Transcript p. 3-44]. [57] In regards to the referring of Rex to an independent medical examiner, O'Connor indicated that since 2006 there had not been many long periods where Rex had actually been teaching full-time and that TAFE needed to resolve what was actually going to be the long term outcome. From a taxpayer point of view, it was difficult for TAFE to continue to pay someone full-time but had nothing really for them to do that would add to the output of the institute [Transcript p. 3-44]. Egerton [58] Egerton is employed as a Fire Safety Officer, Workplace Health and Safety Officer, and Workplace Rehabilitation Co-ordinator at the Tropical North Institute of TAFE. He had been the Workplace Rehabilitation Co-ordinator for Rex since late 2007 and had continued in that role until mid [59] His understanding of the duties and role of Rex as a CALM program teacher was that there were significant levels of field work which included driving in remote locations. In 2009, a suitable duties program had been established and was being undertaken by Rex which required him to work five hours per day for four days a week. Due to injuries which he had suffered in relation to his back and in respect of pain management, he was not, at that time, part of the CALM program, nor was he required to carry out on-country duties. [60] A facsimile was received from Rex on 29 July 2009 to which was attached a Return to Work Plan which had, according to Egerton, been signed off by Dr White, the treating Medical Practitioner of Rex. In that Return to Work program, there were no suggestions of any requirements or any steps that would be needed to be taken in relation to any depression that Rex may have been suffering and the understanding of Egerton in relation to the requirements of the Return to Work Plan were to provide information in regards to the activities his Doctor thought that he was capable of performing and getting advice back to the Doctor that he was capable of performing those duties [Transcript p. 3-50]. The limitations imposed in the Return to Work Plan were predominantly around the physical activities and the ability of Rex to carry out those physical activities with him being allowed to drive only occasionally, not able to four wheel drive, and could not sustain long journeys. [61] On 20 October 2009, Dr White had forwarded correspondence to Egerton which included a signed Work Capabilities Checklist which predominantly had stated that there should be reduced hours of work (five hours per day for four days a week), reduced lifting (of five kilograms) and limited climbing of stairs. There was also a restriction requirement for forceful grasp for an affected hand and regular breaks required when sitting. These restrictions were put in place so that he would be able to follow the restrictions and would be able to do the suitable duties program within these limitations. There was no mention, in the correspondence, that there was any psychiatric or psychological condition affecting Rex's Return to Work Plan and it was the understanding of Egerton that the Checklist related to a back injury [Transcript p. 3-51].

9 9 [62] Evidence was given by Egerton that in relation to communications occurring between himself and Rex over a period of time there had been, at Rex's request, a process where most, if not all, of the communication was to be in written form via , fax or writing as Rex indicated he wished to provide to his legal representatives details of those communications. [63] Egerton had a conversation with Rex on or around 10 December 2009 and also received an from him on that same date where Rex had indicated concerns about the upcoming relocation and was seeking information. Egerton, in evidence, indicated he was astounded at the request as he understood there had been public forums conducted earlier in the year in Mossman around the relocation of the Campus and also Pyne and Licciardello had travelled to Mossman on occasions and spoken to staff members about the relocation that was to happen at the end of the year. The concerns that Egerton had were such that he contacted Licciardello and asked him to speak to Rex about the relocation. [64] In relation to leave arrangements that Rex had put in place for the period of December 2009 and January 2010, Egerton indicated that approval had been given for non-attendance time to be taken from 14 December 2009 to 6 January 2010 and for recreational leave to be taken from 7 until 29 January [65] Egerton gave evidence of his involvement in the arranging of the independent medical assessment that was undertaken by Rex and recalled a conversation (with Rex) where he had indicated that the Brisbane office was keen to look at the ability of Rex to keep doing his present duties and of the chances of him being able to get back into full duties, therefore requiring the medical assessment to be undertaken by Dr Haynes. He, a short time later, fielded a request from Rex as to whether or not he had heard anything about the assessment undertaken by Dr Haynes and at that time there was nothing in that from Rex that would have caused him to believe that he had been suffering from depression or stress due to the fact that he was required to remove his personal possessions from the Mossman TAFE Campus. [66] Shortly after TAFE received the report from Dr Haynes (Rex had also been provided with a copy of the report) Egerton contacted Rex for the purposes of arranging to have a discussion around the report. Rex was not available at that time to speak to TAFE staff, however arrangements were made for contact to be made the following day. [67] On 18 December 2009 there was a telephone conversation with Rex that included Egerton, Clarkson and Licciardello which was described, in evidence, as a "fairly brief conversation" where it was outlined to Rex a number of matters arising from the report in respect of his ability to be able to do ongoing teaching in the field and that TAFE were looking at options to fit in with his Return to Work Plan, for him to be able to continue doing some teaching. In the course of the conversation they canvassed working from home and Licciardello had talked about some work for the Yarrabah community but that work was not to be carried out at Yarrabah. There was also mention of the possibility of ill-health retirement and there was no requirement from Rex that he should provide answers then and there as the situation had been regarded as delicate. [68] Egerton's recall was that Rex appeared upset about the options and wanted time to think about it, so they arranged to talk to him in late January The purpose of the conversation with Rex about the report of Dr Haynes was in no way connected with the relocation or possible closing of the Mossman TAFE Campus, it was simply to look at the options that were available in relation to Rex following receipt of Dr Haynes' report. [69] Under cross-examination, the first issue dealt with related to the phone conversation with Rex on 18 December 2009 where it was put that Rex was being required, in the course of that conversation, to make a decision over the Christmas period of the options that had been put, Egerton disputed such claim and indicated that there was not a definite decision required from TAFE and they simply wanted to work within the Return to Work Plan with Rex to accommodate those options that had been put [Transcript p. 3-62]. The period of the conversation on 18 December 2009 was said, by Egerton, to have been some ten minutes and in the course of the discussion, it had never been suggested that Rex would be required to drive to Yarrabah and that was because of the regard that TAFE had in respect of his condition relating to pain and other difficulties [Transcript p. 3-65]. The option of work in Cairns would have, according to Egerton, required some travel to Cairns, but the evidence was Rex had travelled to Cairns from time to time on other matters and that this was, in their view, something that may have been accommodated. [70] In response to the question that TAFE had acted in "haste" in arranging the telephone conversation with Rex on 18 December 2009, Egerton replied that there was a need to speak to him about the report and that the telephone conversation seemed the best way for that to have occurred. There had been no discussion about the option of a face to face meeting with Rex [Transcript p. 3-71]. [71] On the matter of an dated 9 September 2009 sent to Licciardello and copied to Egerton, it was put that Rex had identified in that that there were obvious signs of stress appearing in every quarter as a result of the rumours regarding the closure of the Mossman TAFE Campus. A response was being sought from Licciardello, more so than Egerton, and Egerton gave evidence that he did not accept that all of the staff, as indicated by Rex, were in fact stressed. In terms of the , he had made some enquiries to Licciardello that night to see what

10 10 was happening in Mossman, however he did not ask questions about staff stress levels and did not accept that someone making a statement such as this necessarily means that that situation is true [Transcript p. 3-74]. [72] On 14 October 2009 an had been received from Rex indicating that he was suffering from bad depression due to a number of stressors. Egerton contacted Rex around concerns about the condition of Rex's son who had been subject to a bashing and had not drawn any other conclusion from the in respect of the cause of the depression mentioned by Rex in that [Transcript p. 3-77]. [73] Questioning again went to the medical assessment of Rex undertaken by Dr Haynes and the evidence from Egerton was that Rex had been provided with written information sent from Organisational Health in Brisbane which set out the details of the assessment and included a number of possibilities that may have arisen including an early medical retirement [Transcript p. 3-82]. Egerton gave evidence that he had contacted Rex about the medical appointment, although he did not assume the responsibility for the whole organisation though he informed Rex fully of what was contained in the provided information. The options that had been put to Rex on 18 December 2009 were covered further in cross-examination, and in particular there was reference to the options that had been put which included Yarrabah, working from home, and possible course writing. Egerton did not accept suggestions that the conversation on 18 December 2009 was premature and that the issue of the early medical retirement would have been better to have been dealt with at a time beyond two days after Rex had been presented with Dr Haynes' report. [74] In re-examination, the evidence of Egerton was that in respect of his role as Rehabilitation Co-ordinator and of his dealings with Rex, the future of the Mossman TAFE Campus had not played any role in his thinking [Transcript p. 3-81]. [75] In regards to suggestions to Egerton in cross-examination that the CALM program was reducing at the Mossman TAFE Campus, Egerton was asked whether or not that was the case and gave evidence that as he understands that course is presently still in operation. Licciardello [76] Licciardello is an Education Manager employed at the Tropical North Institute of TAFE and in 2009 was responsible for programs within the facility of Aboriginal and Islander Studies, including the CALM program. He gave evidence in relation to the CALM program being both classroom oriented as well as providing instruction "on country" which required students and the teacher to spend time in the country. Rex had been delivering the CALM program from 1990, quite some time before Licciardello had assumed the role of responsibility for overseeing those programs. [77] In 2009, Rex injured his back and leg whilst on a Return to Work Plan which resulted in him being placed on a program of further restricted duties which did not allow him to go "on country" due to the pain that he had suffered as a result of the injury. [78] In 2009, the Mossman State School advised that they were wishing to take back the buildings that they had been providing to TAFE that had formed the Mossman TAFE Campus and there was a need to relocate the Campus. Licciardello, as part of his role, was involved in the search for new premises and in conjunction with Pyne attended a briefing meeting with staff at Mossman to advise of the relocation and what steps were being taken by TAFE in respect of the future operation of the Mossman TAFE Campus. Licciardello was aware that a community meeting had taken place, although he was not personally in attendance at that meeting. He had spoken on one occasion with Rex about the need to move and what they were required to do in respect of packing up all of the equipment and to then determine what facilities would be organised at other venues. There was no suggestion by Rex that he had concerns about his ongoing employment due to the movement of the Mossman TAFE Campus at that time and whilst he was not involved directly in the delivery of the CALM program, he was carrying out a range of administrative work due to his incapacity. [79] Evidence was given that in 2010 the CALM program was not offered in Mossman as the Traditional Owners of the land used in the course were not interested in the course being provided if Rex was not available to teach. However in 2011, the CALM program was offered and implemented in Mossman with a teacher other than Rex. [80] On 18 December 2009, Licciardello, along with Clarkson and Egerton, was involved in a telephone conversation with Rex following the receipt of Dr Haynes' medical report. Licciardello recalled that the purpose of the meeting was to put options that might be available for Rex in relation to his work commitments in 2010 and Licciardello, as his Line Manager at the time, gave evidence that he was keen to keep Rex involved in connection with the CALM program due to his wealth of experience and thought that it was possible that he may well have been able to undertake consultation with the local community as well as involvement in management of the program even though he was unable to teach. He recalled that discussions took place about Rex travelling to Cairns, but his own knowledge was that Rex had had some difficulty with the drive due to his injury problems. He recalled discussion around the issue of course writing and believed that Rex, as with other TAFE teachers, had some capacity to assist in that particular area. In relation to the response of Rex, the evidence was

11 11 that no answers were given by Rex in relation to the options and the TAFE participants in that telephone conversation indicated that they would get back to Rex in January 2010 to "see how he was travelling". [81] In 2009, Licciardello could not recall Rex expressing any concerns about the pressure he may have been under due to the level of abuse that he may have been receiving from the local community. [82] Under cross-examination, Licciardello gave evidence that in the period of time between early September and 18 December 2009, he had no understanding that Rex was suffering from depression and he had not been aware that Rex had previously been diagnosed with an adjustment disorder with features of depression and anxiety [Transcript p ]. [83] Following the decision of the Mossman State School to require TAFE to vacate the Campus premises in 2010, Licciardello visited the Campus on a number of occasions in late 2009 and his evidence was that there was no indication from any of the staff that they were feeling stressed as a result of the proposed relocation. He did recall that Rex, at one stage, was "pretty upset" as a result of his son being bashed [Transcript p ]. Licciardello recalled having a telephone conversation with Rex in respect of the requirement to move all personal gear from the Campus by staff as they had been required to vacate the premises by a certain date. There had been prior notice given in respect of the need to pack up and vacate, but that date was revised from the original date provided to TAFE as a result of the Mossman State School requiring access to their buildings earlier. [84] In relation to the telephone conversation of 18 December 2009, the evidence was there was not any plan in terms of what might be said, it was just an opportunity to look at options and they were about asking Rex what he would like to do. He recalled that there had been mention of early medical retirement, but that reference had not been made by him. Prior to the telephone conversation, Licciardello indicated that he had not read Dr Haynes' medical report and had not been provided with any detail in respect of contents of the report. In relation to the option of Yarrabah, Licciardello indicated that it had not been suggested that Rex would do delivery of that program, obviously he was still incapacitated and coming back through a rehabilitation program and, in effect, what was being suggested was that he would co-ordinate and do some consultation with the Yarrabah community's Traditional Owners, but it was never the intention for him to train or deliver the program in Yarrabah. The reason being that Rex would not have been able to travel the distance that would be required to undertake such a program in respect of teaching. [85] Questions were also asked in respect of the other options, with the evidence of Licciardello being that, in relation to the course writing, in his mind, it had always been simply in respect of the CALM program and not any other particular course. [86] Licciardello was asked on reflection whether he considered that the telephone conversation of 18 December 2009 could have been handled differently in that it might have provided a better outcome for Rex, to which he replied that he thought the information that was given to him about the options was valid and that he was given time to think about them with the arrangement being for a follow up meeting on 22 January 2010 (of which he was not part) [Transcript p ]. [87] In re-examination, Licciardello indicated that the only qualification held by Rex in respect of teaching was for the CALM program. Pyne [88] Pyne, the Institute Director of the Tropical North Institute of TAFE, had known Rex for a period of eight years and gave evidence initially in respect of the operation of the Mossman TAFE Campus in 2009, including staffing arrangements at that time. In July 2009, TAFE were advised by the Mossman State School of the need to vacate the premises for the 2010 year and at that time began a search for alternate accommodation. TAFE was required to undertake a range of considerations and at one stage looked at providing an interim request to the Minister to close the Mossman TAFE Campus, however following discussions at the local level, that option was never put to the Minister as there was not an intention of the TAFE management at the Tropical North Institute of TAFE not to have operations in the Mossman community. [89] In September 2009, Pyne and Licciardello met with staff at the Mossman TAFE Campus to update them on matters relating to the relocation. On or around 7 October 2009, Rex advised via that his son had been involved in an incident which had been described as being quite serious and he had, in the course of the discussion with Pyne, indicated that he was suffering from insomnia and that his Doctor had recommended the taking of antidepressants although he had expressed some reluctance to do that. At no time after the discussion of 7 October 2009 did Rex ever again raise the issue in respect of the incident involving his son nor did he advise that he was not coping with that situation. It was decided that there would be a community meeting in Mossman to discuss proposals for the continuation of the Mossman TAFE Campus and that meeting was held 18 October The recollection of Pyne was that about 40 people/organisations had been invited to attend the community meeting and, on the day in question, some 20 people attended, although Pyne's recall was that Rex

12 12 himself had not been in attendance. At some period of time around late October 2009, she had raised with Rex the need to sit down and talk about some options that might be available for him of which he was said to have stated "Well, I really don't want to talk about it until the Workers' Compensation is resolved. We'll see where that takes us" [Transcript p. 4-11]. The position adopted by Pyne at the time was "Well that's your choice and we'll wait and see what happens with that". [90] On 17 November 2009 there was a meeting held in Cairns at which Rex was in attendance and one of the agenda items related to issues in respect of Yarrabah and the possibility of providing some training in that area. Also on the agenda at that meeting were matters relating to an industry liaison meeting which occurs regularly to allow industry groups to participate in the delivering and running of courses and, in this case, it was to do with the CALM program. Rex is said to have suggested that the meeting take place in early February [91] Pyne gave evidence about the work undertaken in 2009 by Rex that due to a work-related shoulder injury that he had suffered he had been unable to carry out the full duties as a CALM program teacher and in particular "on country" work. It had been some 18 to 24 months since he had actually been able to do the job fully due to his injuries. [92] Due to some confusion over the injury that Rex had suffered and what duties he was able to undertake following discussion with Human Resources in Brisbane, it was decided that there should be an independent medical examination so it could be determined as to what duties Rex might be able to carry out should he continue at TAFE. The independent medical examination had nothing to do with the relocation of the Mossman TAFE Campus and Rex had not raised issue with Pyne in respect of concerns he may have had about attending that examination. [93] On 24 November 2009, Pyne received Dr Haynes' report but had no further conversation herself with Rex in relation to the findings of the examination or any other matter. [94] Under cross-examination, Pyne was taken to a meeting involving Clarkson, Egerton and herself and was required to disclose the substance of that meeting as it related to Rex. Pyne indicated that the meeting had canvassed what other roles in TAFE might be available for Rex, including work at the Indigenous Centre, and curriculum writing. It was also discussed that Rex may choose to affect an ill-health retirement, however Pyne accepted that in the report of Dr Haynes, there was nothing in respect of that particular option. Rex had previously raised with Pyne the issue of voluntary redundancy and whilst it was a completely different option to that of early retirement, Pyne believed that it was right to consider a range of options that included ill-health retirement. There was to be a discussion with Rex but there would be no pressure applied in terms of having to come up with answers to the options by a certain date. Pyne stated "on every occasion we've talked to Ray [Rex] about the full range of options open to him and we would discuss it with him and make a decision that, what was best for him in terms of his ability to work for us" [Transcript p. 4-23]. [95] On the awareness of Pyne in respect of Rex having suffered a condition of depression, she understood that he would definitely have been affected as a result of what had happened to his son, however she believed that the condition relating to the distress and insomnia that Rex was experiencing as a result of the back pain from a previous injury [Transcript p. 4-24]. Pyne recalled that on one occasion Rex had indicated that he was struggling and fragile, but was working with his Doctor in respect of that condition. Pyne, at the time, reminded Rex that there was an Employee Assistance Scheme available and she was confident that he had been receiving medical treatment and was also aware of the support that the organisation could give him in difficult times [Transcript p. 4-29]. [96] In respect of the telephone conversation involving Rex and TAFE management on 18 December 2009, Pyne was quite comfortable with the fact that the range of options were put to Rex in that forum and held this view as a result of the very good relationship that Rex had had with each of the management persons involved in that conversation [Transcript p. 4-25]. [97] In response to a question relating to the Return to Work Program undertaken by Rex, Pyne gave evidence that TAFE had created that role for him, that the role had not previously existed, and the role was not filled after he had left. On whether it was fairly obvious to everybody that Rex could not teach the CALM program again due to the travel and physical restrictions, Pyne replied that Rex had never said that his condition was a permanent situation [Transcript p. 4-26]. [98] Rex was present at a team meeting in November 2009, according to Pyne, when the matter of the CALM program for 2010 was discussed including what roles would be undertaken by members of the team, including Rex, in the coming year. However at the time of that meeting, TAFE did not have access to Dr Haynes' report and was still unsure whether Rex could work as a CALM program teacher or not [Transcript pp and 4-33]. [99] In respect of questions about the 18 December 2009 telephone conversation with Rex not being conducted "faceto-face", Pyne gave evidence that it was common to communicate with the smaller Campuses outside of Cairns by phone, or sometimes video link [Transcript p. 4-35].

13 13 [100] In reply to a question about whether the Return to Work Plan had a life, Pyne replied that the purpose of the Return to Work Plan was to enable an employee to return to their original position or to be redeployed and the Return to Work Plan was limited in terms of its longevity [Transcript p. 4-36]. [101] Further questions were put to Pyne in respect of what had been said to Rex at the time he was sent to Dr Haynes for the independent medical examination, and it was suggested that Rex had not been told that, in any shape or form, seeing Dr Haynes could become a trigger for him being given final options about his future work. Pyne stated that she had spoken to him about the appointment and the reason for the appointment being to find out what work he could do so they could plan for him knowing that they may have to accommodate his disability in the workplace [Transcript p. 4-39]. [102] In re-examination, a question was put in respect of the payment arrangements for Rex whilst he was on the Return to Work Plan and evidence was given that whilst he was working part-time, he was receiving a "top-up from his Super" and effectively receiving a full-time salary. Second Respondent (Rex) Burchill [103] Burchill is currently an employee of Queensland Health, however in 2009 he was employed as a Student Support Officer at the Mossman TAFE Campus. Whilst employed at TAFE he had been involved with Rex in the delivery of the CALM program and working in the office. He gave evidence that he could recall people coming to the Mossman TAFE Campus in 2009 and asking Rex for his opinion regarding the possible closure of the Campus. He observed that Rex was flustered at times, was in emotional distress and became angry at times. Despite all that, his evidence was that "his motivation never wavered, no his - I noticed his energy level may have reduced some degree because of the stress" [Transcript p. 2-85]. [104] Burchill recalled attending a staff meeting at which management from Cairns were present. The message from that meeting was that staff were left unsure as to what was happening the following year but were not told to "start looking for another job because this is getting closed, it was nothing like that" [Transcript p. 2-85]. Prior to leaving TAFE at the end of 2009, Burchill could not recall anyone from TAFE communicating to him where the Mossman TAFE Campus would be operating from in [105] Under cross-examination, Burchill was initially unsure about the period of time he was off work in the last quarter of 2009 due to his involvement in a motor vehicle accident. He was able to recall one day (with certainty) when he had brought in a medical certificate that he witnessed Rex being spoken to about the closure or relocation of the Mossman TAFE Campus [Transcript p. 2-88]. [106] Burchill recalled work undertaken in Yarrabah in the first half of 2009 but had no recollection of Rex travelling to Yarrabah with him [Transcript p. 2-90]. Despite giving evidence that he spent a lot of time with Rex in 2009 he could not recall if he had taught the CALM program in that year [Transcript p. 2-92]. He gave evidence that he attended a staff meeting at which management (Pyne) advised that the Mossman State School wanted to take back the accommodation being used by TAFE but he could not remember being told they were looking for other premises [Transcript p. 2-95]. Rex [107] Rex, a TAFE teacher (although currently not practicing in that role) commenced with Cairns TAFE in 1990 having been actively sought out to be part of the CALM program. His qualifications include an Arts Degree and a partially completed Masters Degree in Indigenous Australian Studies. He has no professional teaching qualifications although on commencement with TAFE, he undertook a Train the Trainer course and has been required to continue to up-skill in that area. Rex gave evidence on the role undertaken as a CALM program teacher including being required to work in remote locations on Cape York, four wheel drive travel on good and not so good roads, camping out and with significant heavy lifting required at times. [108] In 2006 he suffered the first of two workplace injuries in which he injured his spine and thigh and later in 2008, as a result of another incident, injured his right shoulder. The effect of those two physical injuries led to the developing of a degree of disability which made it impossible for him to continue doing the strenuous elements of the CALM program teaching job. After a period of time off work on WorkCover, he ultimately returned on a WorkCover supervised Return to Work Plan with Egerton being the person responsible for its supervision. In respect of Egerton, he had only become involved in 2009, but prior to that the original Return to Work Plan had been arranged through another Rehabilitation Officer. [109] When first commencing the Return to Work Plan, he had been required to undertake some travel by car to the Atherton Tablelands and found that, resulting from time spent in the vehicle, he was suffering from increased pain and it was difficult to travel any great distance without having a break. He gave evidence of being

14 14 requested to attend a presentation in Brisbane where the courses that he had been involved with were to be recipients of some form of excellence award and he undertook that travel. He indicated that he had no option but to undertake the trip to Brisbane, but at the same time was proud to go and receive the award as a result of the role that he had played in the development of the courses. He indicated that, in relation to the Brisbane trip, there was some difficulties for him travelling and on his return home he felt tired, in fact very tired. [110] Rex gave evidence that from early September to 18 December 2009 he had made mention, in a number of s, matters relating to his emotional state and psychological wellbeing. Those s had been forwarded to Egerton and, on occasion, copied (CC'ed) to Licciardello and others. His evidence was that he received no response from either of the recipients, particularly as it related to his comments about the trip to Brisbane. [111] Included in the s that he had forwarded to Egerton and Licciardello, he had raised issues about whether it was true that the Mossman TAFE Campus was to close and had sought further information, however he, in evidence, indicated that he did not receive a response from Egerton in respect of his enquiry. [112] There was a meeting held in Mossman, attended by Pyne and Licciardello, where they advised staff about the budgeting and financial situation of the Mossman TAFE Campus and that there were issues with the Mossman State School needing to utilise their accommodation that would require TAFE to find other premises with each staff member present at the meeting asked to actively participate in trying to find appropriate accommodation that could house the operations of the Mossman TAFE Campus. [113] Rex gave evidence that, when his son was bashed in August 2009, it had a major emotional effect on his already fragile state which was as a result of concerns in the community about whether TAFE would continue to operate in Mossman. Enquiries were being made of him whilst he was at TAFE and in locations away from TAFE when he was, for example, at the supermarket and he received a number of after hour phone calls. There were articles written in local newspapers which further generated responses from members of the community and Rex gave evidence that following these newspaper articles, two to three people per day would come in to the TAFE and question him about the future of the Campus. He indicated that in total some 30 people had approached him within the TAFE facility, with at least a similar number or more contacting him outside of TAFE [Transcript p. 4-61]. The demeanour of the people contacting were said, in many cases, to be aggressive and people were "aggravated" with him [Transcript p. 4-62]. [114] On questioning from the Commission, he identified two persons who had been in discussions with him, the first being Ernie Loan, a community Elder, who had contacted him somewhere around 18 or 19 October 2009 indicating his concerns that persons would be trained in locations that were not satisfactory. The other person identified by Rex was said to be Dr White, his General Practitioner, and treating Doctor at the time. She had suggested that he should be "out there protesting" about what was happening to TAFE. The Commission asked the question why, Dr White being aware of all the matters in relation to his health, had suggested that he should be "out there protesting" to which Rex replied "well she said I should be doing something about it, like, just shouldn't have it like this. Shouldn't just sit back" [Transcript p. 4-63]. [115] Rex, in evidence, took issue with the minutes of a faculty of Aboriginal and Torres Strait Islanders Studies meeting [Exhibit 20] that was held in Cairns on 17 November 2009 in that what was recorded did not reflect what he had said in relation to a decision that WorkCover would be making on 14 December 2009 in relation to clarity of his work duties. In the course of the 18 December 2009 telephone meeting (at which time he did not have the results of the 14 December 2009 WorkCover assessment) he indicated there were no discussions about his WorkCover assessment or his Return to Work Plan. [116] On or around 10 December 2009, Rex indicated, in evidence, that he was very confused about the relocation process in respect of the Mossman TAFE Campus, although he understood that this was to occur over the Christmas period. A week previous, Eddie McKewan, the TAFE Facilities Manager from Cairns, had been on site (unannounced) measuring certain areas which he had indicated, upon questioning from Rex, were for the possible installation of toilet facilities. He did advise Rex at the time that TAFE were investigating numerous options in respect of accommodation. Further on 10 December 2009, Rex had sent an to Egerton [Exhibit 14] where he had indicated that he had been shocked at being contacted that morning requiring some receipt books to be found and sent back to Cairns prior to everything being packed up. The person who had contacted him, Katie Grant, was informed by Rex that he, along with other Mossman TAFE Campus members, were oblivious to what was happening at the Campus and they had not been told anything. The went on further to cover a range of issues including: Why is the agenda for the Douglas [Mossman] Campus being kept secret or hidden from staff? Staff (including Rex) were feeling the Mossman, Port Douglas and Daintree community's pressure and Rex sensed that there may be a certain amount of trepidation and grief as to what the outcome for the future of the Douglas [Mossman] Campus might be. Rex acknowledged that they had been briefed by Pyne about the situation, however there had been no clarity for staff on the many or varied issues that arose with such a situation that the Campus finds itself in since the public meeting in Mossman (October 2009).

15 15 Concerns were raised around what had been reported in local newspapers and in relation to snippets of news from various staff members which included McKewan. Comments were made regarding the health and wellbeing of staff within the with Rex specifically stating the following: "Everyone sees me as the senior person having been here for 20 plus years (Jan 1990) and the person to turn to when they all feel so insecure. I am trying to put on a brave and strong front to help them in their needs. Little do they know how I am feeling inside. As a result, I am overloaded to breaking point with everyone else's problems whilst doing my own job and trying to fill in for Tahnee as best I can and deal with my own personal problems at the same time which I am just keeping the lid on. I am lucky to have lasted until today when my leave begins without loosing it completely. Added to this is all the pressure being brought to bear on me with TAFE Medical Assessment on Monday and the upcoming Workcover Medical assessments on Monday in Brisbane.". [117] Rex gave evidence that he had attended a WorkCover assessment in Brisbane on 14 December 2009 having been required to fly down the day before, stay overnight, and then return to Cairns. The process had some effect on him and he stated the following [Transcript p. 4-75]: "And it was emotional anyway going down to the tribunal enough for me, as well as the travel, so I was - I was possibly a bit, you know, soft at that particular time. And in fact I was very sad at the tribunal, and one of the ladies came up to me and asked me what I was - you know, what was wrong with me and I told her that - what had happened at the TAFE and I said, 'I just don't know what my future holds, you know.' ". [118] In evidence, relating to the visit to Dr Haynes, Rex indicated that he had received a letter from TAFE on 24 November 2009 about the appointment, however had not read it at first, re-read it later (after the examination) and thought it was just about another medical appointment which he described as "oh, yeah, the same old, same old" [Transcript p. 4-82]. No contact was made by any of his direct management about the appointment. He gave evidence that Pyne had not contacted him about the purpose or ramifications of the appointment. The letter [Exhibit 22] advised that the appointment had been made pursuant to s. 175 of the Public Service Act 2008 (PS Act) and had the following attachments: Background information supplied to Dr Haynes that included Rex's history insofar as his employment, duties, medical conditions, managing his back injury (since 2008) and that there were concerns for Rex's continued wellbeing and functional capacity whilst performing his duties in the workplace. Information relating to two accepted WorkCover claims in 2006 and Advice that Rex had developed an adjustment disorder with depressed mood and anxiety secondary to chronic pain from his physical injuries. Advice that both WorkCover claims had ceased however there was advice from Dr Russell d'scarlett, an External Medical Examiner (on behalf of WorkCover) had on 29 June 2009 recommended that Rex not return to his full-time substantive role. Part 7 of the PS Act - "Mental and Physical incapacity". Included in this material was s "Action following the report": "(1) If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may - (a) (b) transfer or redeploy the employee; or if it is not reasonably practicable to transfer or redeploy the employee - retire the employee from the public service. (2) Subsection (1) does not limit the action that may be taken relating to the employee.". [119] After completing the interview and the examination, according to Rex he was asked by Dr Haynes "Have you ever considered medical retirement?" [Transcript p. 4-81]. [120] In response to a question from the Commission as to whether he had read s. 178 of the PS Act, and in particular about transfer, redeployment and to retire the employee from the Public Service, Rex replied "Yeah, and sort of dismissed it as, 'Well, that's not me'." [Transcript p. 4-85]. [121] On 15 December 2009, Egerton furnished Rex with a copy of the report that Dr Haynes had compiled.

16 16 [122] Egerton contacted him on 17 December 2009 wishing to have discussions to which Rex suggested that they be held the next day as he was not fully recovered from his trip to Brisbane. As arranged, Egerton rang on 18 December 2009 advising that Clarkson and Licciardello were on speaker phone with Clarkson then taking the lead informing him that they wished to go over a number of options following receipt of Dr Haynes' report. [123] In respect of the options, Rex gave evidence that the first three options were: working or assisting with Yarrabah project; working within the CALM program in Cairns; and course writing (not limited to the CALM program). [124] A fourth option was then put by Clarkson which was "Had I ever considered medical retirement". Clarkson did not elaborate on this option but stated that Rex was not required to decide "right then and there" and that they would get back to him in a months time to which Rex replied "okay" [Transcript p. 4-99]. The conversation had lasted about ten minutes and concluded by them wishing Rex a Merry Christmas. Rex indicated that he had been "blown away" and "crushed" at being faced with medical retirement: "I was just totally dumbfounded. I - I - I didn't know what to think. I was - my - my brain was going at a thousand miles an hour and I just felt really crushed. I - I thought, goodness me, after 20 years service my teaching life and my life at TAFE is down to four options. So many things went through my mind." [Transcript p. 4-99]. [125] The other three options were not considered by Rex to be viable or achievable. [126] On 20 January 2010 he was telephoned by Clarkson who informed him the reason for the call was to seek his response to the options that were opened up for him in the 18 December 2009 call. Rex informed them that he was in no fit state to "handle this" as he had crashed and was in a bad way mentally [Transcript p ]. [127] Rex was the subject of lengthy cross-examination with initial questioning focussed on the 18 December 2009 telephone conference. Rex acknowledged that: he did not feel the need to have a support person (wife) present [Transcript p ]; he was told on 17 December 2009 by Egerton the purpose of the call on 18 December 2009; it was not unusual for three TAFE managers to be involved in such a conversation. He thought they may give him some information about the Mossman TAFE Campus [Transcript p ]; he trusted Egerton and Clarkson but had some issues around trusting Licciardello; and he was given options but not told he had to make up his mind "there and then" [Transcript p ]. [128] Rex's evidence was that he had not undertaken any teaching since August 2008 due to limitations preventing him going into the field [Transcript 4-107]. He had no qualifications to enable him to write courses, however if he had been able to successfully complete a "TAA" course over the 2009 Christmas break, he would have been qualified to undertake this task [Transcript p ]. It had been his intention to use the TAFE computers to complete this course (not his own) and gave evidence that as at December 2009 he did not know that TAFE had to be out of the Mossman State School, which he then qualified in respect of McKewan's visit to the Campus. He accepted that prior to his evidence in these proceedings, he had never previously mentioned the McKewan visit [Transcript p ]. [129] When questioned about the telephone conference of 18 December 2010, Rex conceded that he had not been told that he had to accept medical retirement and that it was only put as an option [Transcript p ]. It had been only Dr Haynes who said that he should "consider" medical retirement. [130] Rex accepted that he was unable to return to full-time teaching duties and that limitations had existed with the part-time office duties he had been undertaking in his TAFE facilitated Return to Work Plan. [131] Rex accepted that he had ed Egerton enquiring about "where things are at with Dr Haynes" (arising out of the medical examination). Egerton had sent the report to him around 16 December 2009 with Rex accepting the following position put by Counsel for the Appellant: "That's right, the 16th of December. So, you were concerned to get the report, have a read of it, and you would not want to be left hanging without talking to TAFE about the report, would you? You wouldn't want to be left in uncertainty about where things go with this report; that's correct? So, having the report, the sooner you had a conversation with Doug and Neil and Wayne the better; correct, from your perspective?".

17 17 [132] In response to the correspondence he received requesting his attendance at the medical examination conducted by Dr Haynes, Rex gave evidence that: he read the letter but "didn't go over it as thoroughly as I should have" [Transcript p ]; on the purpose and possible consequences of the examination and, in particular, s. 174 to s. 179 of the PS Act, he said that he assumed he had read it and then went on to say he had briefly looked at it [Transcript p ]; and on the background information contained in the letter, Rex stated that "it's very much like WorkCover does" and he "glanced at it" [Transcript p ]. He acknowledged that he received a call from TAFE prior to the examination, but could not recall Pyne or Egerton talking to him about the appointment [Transcript p ]. [133] Under cross-examination, Rex refused to accept that when Pyne and Licciardello visited the Mossman TAFE Campus in September 2009 that staff were informed that the Mossman State School site would be closing [Transcript p ], in fact his position was that they had convened the meeting and travelled from Cairns on the basis of the site "possibly" closing [Transcript p ]. [134] Rex had attended a community- meeting in October 2010 following which he forwarded an to Pyne said to provide feedback from the meeting. In cross-examination, he was taken to sections of that [Exhibit 19] and in particular the third paragraph: "I informed the meeting that it was proposed that the Primary School needs its space back due to increased numbers of students and as most meeting participants knew an area to build the new Resource Centre for the School. I also gave them a history of the TAFE as a number of participants were concerned that TAFE had moved to the Primary School in the first place. As a result of the Primary School's needs for 2010, the Douglas Campus was looking for an appropriate new home if one could be found and that this was the major issue confronting us all. They asked why this hadn't been made public to which I replied that I believed this was an issue for the relevant Ministers or Director Generals' of both Departments and that TNQ TAFE's hands were tied - it was a matter of protocol which has put a lot of people especially TNQ Management in a difficult situation. I also mentioned that I believed that some sort of discussions had taken place between TAFE Management and CR Council in regards to finding suitable alternative accommodation. Liz Collyer who is like the 2IC here in Mossman new nothing about it and that all discussions must have occurred in Cairns and at political level rather than an Admin level. She believed that with renovations the top floor of the old Council Chambers in Mill Street could be utilised but I said to her that it would need to be user friendly to accommodate disabled students. A number of other persons discussed unused Dongas at the Council and the possibility of going back to the High School or for the Dongas to be placed in the high School's grounds.". [135] In responding to questioning, Rex gave evidence that he should have used the words "the possible" when referring to the Mossman State School needing their space back [Transcript p ]. [136] On the incident involving the bashing of his son, Rex acknowledged it had occurred in August 2009, he had taken no time off work as a result of the incident and had first mentioned the stress it had caused to Pyne in an of 6 October Rex accepted that the major emotional impact from the incident had subsided by 6 October 2009 [Transcript p ]. [137] On the issue of the TAFE toilets at the Mossman State School, Rex in evidence accepted that he knew in September 2009 that they needed to be moved and in October 2009 was aware that a building was to be constructed on the site occupied by the toilets [Transcript p. 5-5]. [138] Rex was taken to a report (not tendered in the proceedings) from Dr Woolridge, a Psychiatrist that Rex had visited on 21 September He acknowledged that he had read the report "a long time ago" and accepted that he had made certain disclosures including: he was depressed all the time; and he felt he was not believed by some Doctors who had interviewed him and also not believed by WorkCover. [139] Whilst accepting that the matter of medical retirement put to him on 18 December 2009 was an option, he gave evidence that he was "shattered" and that he would have to make up his mind by mid January 2009 [Transcript p. 5-19]. [140] In concluding the cross-examination, Rex was taken to correspondence forwarded to Egerton on 21 January 2010 which recorded the following message: "Please find latest Medical Certificate. Dr White is very concerned about my mental state and is presently seeking a suitable Psychologist or even a Psychiatrist to refer me to. I know this will affect my discussions with you as I realise both Neil and yourself want to know what holds with my future. Can you please explain the aspect raised by Neil about medical retirement or voluntary retirement if these are still options available to me.

18 18 The pressure build up of what had happened with the Douglas Campus and how we as staff were treated and how I have now collapsed under the weight of it all after helping all the other staff members with all of their issues and being the release valve/punching bag for the Douglas Campus clients, future students and general public of the local area. If I was not carrying any previous and ongoing physical and psychological injuries I probably would have coped. I am sorry by me being the way I am, if I have failed anyone - it certainly wasn't intended.". [141] Re-examination of Rex touched on a number of matters including: Patricia Rex McKewan visits to the Mossman TAFE Campus between September and December 2009 including the measuring relating to new toilets; 19 October 2009 community meeting in Mossman; and inability to complete his "TAA" training over the 2009 Christmas period due to the TAFE computers being packed up [Transcript p. 5-29]. [142] Patricia Rex (Rex's wife), a Teachers Aide by profession, gave brief evidence that between September and 18 December 2009 she observed that her husband was: Rodgers pretty quiet; a bit cranky; not happy; and upset. [143] Currently employed as a Teachers Aide at the Mossman State High School, Rodgers had worked as a casual Tutor with the Mossman TAFE Campus from 2005 through until She recalled a staff meeting held on 24 September 2009 at which Pyne advised staff that the school needed extra room and that premises were being sought to house the Mossman TAFE Campus. She had no recollection of any timelines being mentioned [Transcript p. 5-41]. Rodgers did not recall receiving any other information about premises until 9 December 2009 when Don Metcalfe told her that TAFE equipment had to go in to storage and the premises at the school had to be vacated by 14 December [144] Rodgers gave evidence that in the period between September and 18 December 2009, she observed Rex at work and recalled witnessing and overhearing exchanges with members of the public about what was happening with the Mossman TAFE Campus and that Rex was "shattered" because he could not give them answers [Transcript p. 5-46]. A couple of weeks prior to 9 December 2009 she witnessed a "heated" conversation with Rex and a French woman who was upset because rooms were not open on certain days and about what was happening with TAFE the following year. Her evidence was that Rex made the following comments at the time about TAFE: "He did say that they were looking into finding new premises, and he wasn't quite sure what would be on offer next year and that we were still finding out information" [Transcript p. 5-44]. [145] Cross-examination of Rodgers was brief going to matters as to the status of Rodgers (at the time in question) being a student or Tutor and of her recall of the 2 September 2009 staff meeting. Ramoutsakis [146] Ramoutsakis, now a Teacher at Mossman State High School, worked for the Tropical North Institute of TAFE in various capacities from 1999 until 9 December she recalled attending a staff meeting at the Mossman TAFE Campus in September 2009 where matters were discussed that included: problems associated with reduced staff; need to find new premises; and need to consult with the interested community groups (Indigenous, business, Chamber of Commerce). [147] Whilst there was no timeline discussed about vacating the premises, Ramoutsakis's impression was that TAFE would need to leave the Mossman State School. Ramoutsakis recalled attending a Community meeting (with around 20 in attendance) where Pyne spoke about different forms of delivery and that new premises for the Mossman TAFE Campus needed to be found. [148] On 9 December 2009, Metcalfe informed Ramoutsakis that the premises were to be vacated on 14 December 2009 which was the first information on this matter she had received since the community meeting.

19 19 [149] Ramoutsakis, in the period between September and 9 December 2009 was working only one day a week but on occasions observed Rex dealing with enquiries from persons about courses for the following year. She recalled Rex had difficulties in dealing with a particular student who was "quite aggressive" and "very belligerent". Rex, at times, appeared to be distressed when fielding enquiries. In respect of her own experiences with students seeking information about courses for 2010, the Commission asked what was different about 2009 (compared to 2008) to which Ramoutsakis replied [Transcript p. 5-59]: "Because of the uncertainty about the location of the Campus and particularly towards the end after we'd had the community meeting with Jo Pyne and - and the staff meeting in September because we knew that we'd be moving premises and there was no word of whether we had any other premises, so we didn't know if we had a physical location for the campus.". [150] In cross-examination, the identity of the student said to have been belligerent towards Rex was raised with Ramoutsakis giving evidence that she was a French woman who had been a student in her class. She had managed her by establishing rapport and did not have any difficulties. [151] On her hours of work, Ramoutsakis' evidence was that she worked one day per week between the hours of 9.00 a.m. to 3.00 p.m. taking a 10 to 15 minute morning tea break and a one hour lunch which she usually spent in the office area. Submissions [152] Written submissions were provided in line with time frames agreed at the conclusion of the hearing proper. Additionally, the parties took the opportunity to provide oral submissions at a time after the written submissions had been filed. Appellant [153] The Appellant bears the onus of establishing the decision of Q-COMP was wrongly made and submitted that they had satisfied that onus. [154] The Appellant admits that Rex is a Worker for the purposes of s. 11 of the Act and also admits Rex suffers from major depression, however denies that it was aware that Rex was suffering from major depression in the latter part of 2009, the period relevant to his Workers' Compensation claim. The Appellant further admits that Rex's major depression was aggravated on or about 18 December 2009 when contacted by Egerton, Licciardello and Clarkson following the receipt of Dr Haynes' independent medical examination report and at which time a range of options were suggested to Rex. The Appellant maintains that any aggravation of Rex's major depression was as a consequence of reasonable management action taken in a reasonable way, thus excluding the injury from the operation of the Act by virtue of s. 32(5) of the Act. [155] The Appellant denies that Rex's major depression was aggravated by issues concerning the need to relocate the Mossman TAFE Campus away from the grounds of the Mossman State School and the alleged "failure to properly communicate a closure" to Rex. On the evidence before the proceedings, Rex was well aware of the requirement for the move from the Mossman State School grounds and the stressor is also excluded from operation by virtue of s. 32(5) of the Act. [156] The submission dealt with "reasonable management action" as provided for in s. 35 of the Act and mentioned the following precedents arising from various authorities: "The term 'reasonable' in s. 32(5) means reasonable in all the circumstances of the case: WorkCover Queensland v Kehl (2002) 170 QGIG 93. Reasonableness does not mean perfection: Q-COMP v Holn [Hohn] (2008) 187 QGIG 139. Management action may still be reasonable although blemished: Q-COMP v Holn [Hohn] (2008) 187 QGIG 139. 'It is the reality of the employer's conduct that must be taken into account and not the employee's perception of it': Prizeman v Q-COMP (2005) 180 AGIG 481; Leigh v Q-COMP (2008) 189 QGIG 65.". [157] Issue was taken with the evidence given by Rex with the Appellant arguing that he was not a credible witness and should not be accepted as a witness of truth. Rex was said to be evasive, unwilling to answer questions adverse to his interests, and his evidence was contradictory at times. His evidence regarding his role as a CALM program teacher also came under scrutiny. It was submitted that his evidence was tainted by "recent invention" and that Rex was prepared to say anything that best suited his interests as he perceived them. Under cross-examination, Rex had given evidence that was said to further demonstrate his unreliability as a witness.

20 [158] In relation to the stressors relied upon by Rex, they were identified as: Communication of the relocation of the Mossman TAFE Campus; and 18 December 2009 telephone conversation. 20 Communication of the relocation of the Mossman TAFE Campus [159] Little reliance could be placed on the allegations of Rex that TAFE failed to properly communicate with him on the relocation of the TAFE Campus. Rex and the other staff were informed on the Mossman State School's need to take back its facilities for the 2010 school year and of the steps being taken to locate alternate premises within Mossman. The evidence of Pyne, O'Connor and Licciardello on the issue should be preferred to that given by Rex. The evidence of Ramoutsakis, who was called by Rex, confirmed what Pyne and Licciardello had said at the meeting with staff: "The TAFE would have to vacate the primary school and at the same time they were looking for alternative premises elsewhere in Mossman" [Transcript p. 5-55]. [160] Rex himself had participated in assisting to organise community information sessions around the changes and, on one occasion, briefed a meeting of interested community groups. [161] On the evidence of Rex (if accepted) that his treating General Practitioner Dr White had told him he should be "out there protesting" about the alleged closure of the Mossman TAFE Campus and this was a cause of stress resulting in injury, then this injury is excluded from the Act as employment is not a significant contributing factor. Similarly, the same would apply for anything said to Rex by Loan which may have caused him to stress. This evidence of Rex was said to demonstrate his unreliability and inference may be drawn that the failure to call Dr White and Loan was that their evidence would not have supported the version of events offered by Rex to the Commission. [162] The Appellant submitted that the steps taken by TAFE personnel to inform staff, including Rex, of the changes to the Mossman TAFE Campus were reasonable taken in a reasonable way. 18 December 2009 telephone conversation [163] On 24 November 2009, Rex was directed (by letter) to attend an independent medical examination and was provided with relevant extracts from the PS Act which he claimed he had not read or were not applicable to him. This evidence was said to be "simply not credible". Rex attended the examination on 7 December 2009 and shortly thereafter ed Egerton asking "where are things with Dr Haynes". Rex accepted in the proceedings that he sent the because he was interested and concerned about the outcome of the examination [Transcript p ]. Dr Haynes provided a report to TAFE (dated 10 December 2009) of which a copy was sent to Rex on or about 16 December Rex agreed that he did not want to be left in uncertainty about the content of the report and he further agreed that the sooner he had a conversation with Egerton, Clarkson and Licciardello, the better [Transcript p ]. [164] Egerton phoned Rex on 17 December 2009 in relation to the report and a telephone conversation was arranged for the following day. Rex, who had known each of the participants for a considerable period of time, gave evidence that he trusted Egerton and Clarkson and took no exception to the way the meeting on 18 December 2009 was conducted and considered it had been reasonable [Transcript p ]. Rex was said to be evasive on whether he trusted Licciardello and gave no reasons for any mistrust. [165] Given Dr Haynes' report, Rex's physical limitation, and the nature of the CALM program ("on country" work), the options given to Rex in that conference were: working from home co-ordinating the CALM program and course writing; working from the Cairns Campus within his physical limitation; working on the Yarrabah project; or medical retirement. [166] Rex had not been required to make a decision "then and there" and, as it turned out, he was able to seek out further information. [167] On the matter of early medical retirement, under cross-examination Rex had said that when this option was put to him it had taken him by surprise and yet, in a Statutory Declaration prepared on 3 December 2010, he had said "As expected, the other option was medical retirement as suggested by Dr Haynes" [Transcript p. 5-23]. The option of early medical retirement was a reasonable one as was the other options put during the telephone conversation. On the evidence of Rex that provided a contrary position on the medical retirement issue, it was said that this evidence did not reflect well on his credit.