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Raymond james lock and q-comp (first respondent) and jbs australia pty ltd (second respondent) (wc/2011/296)

CITATION: Raymond James Lock AND Q-COMP and JBS Australia Pty Ltd <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Raymond James Lock AND Q-COMP (First Respondent) and JBS Australia Pty Ltd (Second Respondent)
(WC/2011/296)
In this matter, Raymond James Lock (the Appellant) sought to overturn the decision of Q-COMP (the first Respondent) issued on 11 July 2011. The decision confirmed the decision of the self insurer JBS Australia Pty Ltd (JBS) (the second Respondent) to reject the Appellant's notice of claim for damages dated 25 February 2010. The claim for damages was made pursuant to s. 275 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). The appeal was conducted pursuant to s. 550 of the Act and to succeed the Appellant must convince the Commission, on the balance of probabilities, an injury, as described in s. 32 of the Act occurred. JBS sought and was granted leave to participate in the hearing. JBS was the employer of the Appellant at relevant times.
Legislation

"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a
significant contributing factor to the injury. (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) (3) Injury includes the following-
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation- (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out
of, or in the course of, any of the following circumstances- (a) reasonable management action taken in a reasonable way by the employer in connection with the (b) the worker's expectation or perception of reasonable management action being taken against the (c) action by the Authority or an insurer in connection with the worker's application for compensation. The Appellant commenced employment with AMH Bremer Works in 2001 and remained employed in that business (which ultimately became JBS) until his termination in October 2009. The injury in question was a psychological injury, said to have occurred over a period of time commencing 1 March 2007 and culminating on 22 October 2009, the date of the Appellant's termination from JBS. The Appellant in his claim for damages (Exhibit 1A) cited a number of matters relating to management action said to have constituted employer negligence which he claimed impacted on him. They were:  Failing to take any or any adequate precautions for the safety of the worker whilst he was engaged in  Exposing the worker to a risk of damage or injury of which it knew or ought to have known;  Failing to provide and maintain any or any safe or proper system of work;  The worker was bullied, abused and ridiculed by his supervisor, Kevin Tanner[sic], in the course of his employment and the employer is vicariously liable for conduct of the said Tanner[sic];  Allowing or permitting the worker to be bullied, abused and ridiculed by his supervisor Kevin  Failing to act on complaint by the worker that he was bullied, abused and ridiculed by his supervisor  Failing to provide the worker counselling and/or a safe place of work after the employer became aware that the worker was stressed in the workplace;  Requiring the worker to undertake excessive work duties which should have been performed by three  Failing to provide any or any adequate assistance to the worker in order for him to carry out his duties;  Further, or alternatively, the said worker's personal injuries and other loss and damage were caused by the employer's breach of s. 28 of the Workplace Health and Safety Act 1995 (as amended) in that it failed to ensure the workplace health and safety of the worker at work.
Evidence of the Appellant

[7]
Evidence was educed from the Appellant with respect to job demands and responsibilities which he said increased in early 2008 with the departure of employee Ms Lyn Dryer through ill health. Ms Dryer assisted the Appellant while she was performing duties of a production manager. Her input at this level ceased following the onset of her health problems. This it was claimed, increased the work load of the Appellant who at times was also training a supervisor. The Appellant said the extra duties were taken on at the request of Kevin Tana, operations manager. The Appellant claimed the extra duties required of him included preparation of daily production reports of downtime and inefficiencies, doing up loss reports and providing them to the operations manager each morning and afternoon, signing QA sheets for pre-op and post-op and night cleaning and took on all non-conformance requirements. Mr Kevin Tana was employed by JBS in late 2007. The Appellant claimed within a few months of Mr Kevin Tana's employment he became "aggressive and very demanding, intimidating" (T1 P17 L4). According to the Appellant, Kevin Tana's abuse and intimidation was occasionally delivered via the internal two way radio system. The hand sets were in the possession of various key staff, including the Appellant and when in use conversations could also be heard by others in the vicinity. The transcript of day 1, page 17 records the Appellants evidence: "If he was searing or anything like that just tell us exactly what he was saying to you on the radio?-- He would ask, you know, where the f-ing hell you were, what was I f-ing doing, why wasn't I on an f-ing line when there was a breakdown, if I was on another job, couldn't get there, you were abused and intimidated in the - What did he say to you, sir?-- On several occasions he'd just say, "Well, why the fuck don't you know what's going on? Stop doing what you're doing and get to, you know, line 2 or line 3," wherever the incident may be. And everybody heard it, everyone that had a radio" (T1 P17 L16-27)." [10] At (T1 P17 L39-43) the Appellant claimed Kevin Tana's comments were also to the effect if the Appellant couldn't do a job and Kevin Tana had to do it, he (Kevin Tana) "didn't fucking need me" (the Appellant) (T2 P20 L40-44). [11] The Appellant expressed concern that positive comments made about him by Kevin Tana in "Top Management" meetings caused him (the Appellant) misgivings and uncertainty with the Appellant suspecting that Kevin Tana's motive may be to cause a "false sense of security" (T1 P18 L1-3) in that this behaviour on the part of Kevin Tana conflicted with the Appellant's other inter-actions with him in his view. [12] He described the work area as comprised of different production areas all located at ground level within one [13] The Appellant said he was still receiving treatment for his medical condition(s) which included tablets to treat depression, cholesterol and blood pressure. He said his working hours prior to Kevin Tana's arrival were usually 4:00am to 2:00pm. [14] Following Kevin Tana's arrival and with the departure of Ms Dryer, the Appellant was starting work at 3:00am in order to complete work prior to the commencement of production at 4:00am. At this point he would, he said, work until 3:30pm or 4:00pm some days. He claimed Kevin Tana would have known of his earlier start because of the timing of e-mails sent to him (Tana) by the Appellant (T1 P23 L7). [15] The Appellant said changes to production starting times in late 2008 or early 2009, resulted in a change to his usual starting and finishing times, the new time being 4:30am to 4:30-5:00pm (T1 P25 L12-13) although he said this made no impact on his workload. [16] He said the stress created by his work situation caused him to be snappy and aggressive. This impacted negatively on his home and family life. The Appellant expressed his concerns regarding workload to Kevin Tana in 2008 and 2009 and that Kevin Tana didn't respond in any helpful way (T1 P26 L54-56). He also said he raised objections with Mr Tana about his manner of addressing him but to no avail (T1 P27 L27). [17] The Appellant said he raised the issues including Mr Tana with Ms Belinda Byrne, an employee of JBS. He detailed his workload, the medication he was taking and the effect this was having on him and his home life. He stated: "I told her of the one incident that - that really set me off was the one that I was abused over the - the radio" (T1 P28 L43-45). [18] He said he had spoken with Ms Byrne on a number of occasions prior to raising matters directly with Mr Tana (T1 P29 L10). The Appellant said Ms Byrne's was a witness to a two way radio instruction given by Mr Tana to the Appellant to get his "arse" over to a particular line (T1 P29 L26-27). The Appellant also said he raised workload and stress matters with human resources manager, Ms Maureen Rae on two or three occasions. He said he advised Ms Rae of his problems with Mr Tana and claimed she responded by saying "oh that's just Kevin's mannerism" (T1 P31 L34). Ms Rae, according to the Appellant did nothing to help.
Medical

[19] The
 He made written records of issues of importance - "if I felt it was an issue" (T2 P3 L46-47);  Exhibit 5A - a photocopy of a page dated 27 August 2008, in which the Appellant has noted "abuse of  Exhibit 5B - a photocopy of a page dated 16 December 2008 in which the Appellant has recorded the  Exhibit 5C - a photocopy of a document dated 20 January 2009 from a book kept by the Appellant for human resource meetings. The Appellant has made a notation "bullying from KT";  Exhibit 5D - a document dated 8 September 2008 in which the Appellant has recorded "work difficulties referred to KT" as well as "KT had a go at me";  Exhibit 5E - a document dated 9 September 2008 containing more production related entries and a record of "run in with Kevin-most on phone not all abuse was via radio" and  Exhibit 5F - KT said "go hard, go long". The Appellant gave evidence of seeing Dr Andrew Byth regarding preparations of a report for these proceedings. He gave the doctor all psychological and other medical history including reasons for his admission to the Ipswich hospital in February 2010. Other medical evidence of the Appellant included:  In April 2007, Dr Tucker "stress at work" which the Appellant in his evidence put down to neck spasms;  Later in April 2007, Dr Tucker records inter alia - "needs to discuss work condition" (T2 P17 L3) which the Appellant attributed to stress from change to the management structure;  The Appellant acknowledged a further 14 consultations with doctors in 2007 prior to the arrival of Kevin  He saw Dr Hugh Wall a day after meeting with Maureen Rae and Kevin Tana and was prescribed  He told Dr Wall his problem stemmed from work and problem with Mr Tana (T2 P39 L29);  The Appellant acknowledged Dr Tucker's records show the first mention of a psychologist in relation to treatment of the Appellant was during the visit of 9 December 2009 and the first discussion with psychologist Owen Kessels had occurred on 18 March 2010  The Appellant's evidence was within about a month of Mr Tana commencing employment at JBS, the abusive treatment to him started. This included Kevin Tana abusing and bullying the Appellant almost daily (T2 P13 L26-58); [21] The Appellant acknowledged making six visits to Dr Tucker in the period from January to May 2009 none of which were recorded as involving work related stress. The dates of the visits were: [22] He acknowledged the next entry for a visit was on 28 May 2998 and Dr Tucker's record states "extremely stressful work situation yesterday" (T3 P76 L60-61). Dr Tuckers notes for the 13 July 2009 visit recorded "very stressed, arguing at home with wife", which the Appellant claimed to have been a reference to arguments at home caused by the Appellant bringing work related stress at home. While his son had some medical problems which "probably" led to arguments, work was the primary cause he said. [23] The Appellant acknowledged further Dr Tucker's records between July and October 2009 with two entries recording the Appellant as "doing better" (September) and "better on cymbalta" (October). [24] The Appellant acknowledged differences between his statement prepared for the Fair Work Australia matter and his evidence in this matter regarding Kevin Tana's swearing. [25] The Appellant recalled two occasions where police attended his residence for matters related to his son. On one occasion, the Son was taken to hospital by ambulance. The Appellant acknowledged this was stressful. The Appellant recalled that soon after the ambulance/hospital event, he spoke with Kevin Tana about the problem and at the invitation of Kevin Tana, the Appellant and his son attended Kevin Tana's gym and he and his son participated in Taekwondo classes. The evidence of Dr Byth a psychiatrist, "included" the doctors evaluation of records, information provided by the Appellant and others, and an examination of the Appellant which occurred on 3 May 2011. Dr Byth's diagnosis was the Appellant had a major depressive disorder with prominent associated anxiety (Exhibit 13). Paragraph 13.2 of Dr Byth's report (Exhibit 13) states: "13.2 This psychiatric condition was caused by his difficulty coping with long hours and feeling overworked in his job, and his complaints of excessive pressure and excessive expectations at work, along with being bullied by a manager. He also felt that he was unfairly dismissed in 2009". [27] Dr Byth's evidence was that towards the end of the Appellant's employment, his judgement would have been impaired (Exhibit 13) (T1 P10 L7-20) and had his work related problems been addressed then his judgement would have been less affected. Dr Byth's evidence also included:  He wasn't informed of the Appellant's son's problem nor the police involvement or the ambulance  He didn't believe the doctor's notation that the Appellant was "doing better" (on cymbalta) recorded for visits in August and October 2009 equated to the Appellant having been cured;  He believed that the Appellant's depression was present at the time of and before the Appellant's termination but rejected a suggestion the Appellant's depression was pre-existing;  The Appellant's condition became worse at the time of his termination (T4 P24 L14-20) and was work [28] Dr Nothling's evidence included a report complied by him following an interview with the Appellant which lasted some 2.6 hours and occurred on 24 August 2010 and a further report compiled on 8 June 2012 (Exhibit 24) Exhibit 23 included: "He had actually developed a Major Depressive Disorder and a Generalised Anxiety Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR). In my opinion the pre-existing disorder was exacerbated as a result of what he described as the interpersonal dispute with Mr Kevin Tana, who was operations manager." [29] The Appellant's termination "was a further stressful event for him as he was then concerned about his future employability in the industry" Exhibit 23 P13). [30] Dr Nothling based his assessments on information provided by the Appellant as to the stressors allegedly caused "I can simply point out that interaction between the two, according to the account provided to me by Mr Lock, was stressful for him and lead ultimately to his employment being terminated on 22 October 2009. This was a further stressful event for him as he was then concerned about his future employability in the industry. From the information he has provided to me, he had a reasonably stable employment record prior to the problems developing from 1 March 2007 in his interaction with Mr Tana." (Exhibit 23 P13). [31] Dr Nothling (Exhibit 24) detailed events in the Appellant's medical history as recorded by the Flinders Peak  12 May 2004 - lost temper at work which the Appellant related to stress about chronic sleep apnoea;  10 January 2006 - Stress - no reference to cause;  12 February 2007 - Stressed at work, felt faint;  13 February 2007 - "Faint longer"  18 April 2007 - Quite stressed at work;  20 April 2007 - "Still headachy" and "needed to discuss work conditions at work"  13 June 2007 - Tight chested "Stressed with production manager quitting". These he noted all occurred prior to the engagement of Kevin Tana employment in November 2007. [32] Dr Nothling agreed with the proposition put to him that his visit to Dr Tucker on 5 October 2009 showing "better on cymbalta" was an indication the Appellant's mental state was improving at that point. Further, Dr Nothling agreed with Dr Tucker's assessment that the Appellant had not lost the capacity to make rational and appropriate decisions and based this on the absence of evidence to the contrary and Dr Tucker;s proximity in treating the Appellant at the time in question. [33] Dr Nothling accepted the Appellant had not been treated with medication to assist him to cope with any psychiatric state between June 1996 and 29 May 2008. This he opined reflected the Doctor's assessment the symptoms weren't "troubling enough" (T5 P32 L46) to warrant treatment and was not an indication of an absence of psychological symptoms. [34] Dr Byth was asked to comment on the comments made by Dr Tucker on 18 June 2012 that the Appellant had, as at 5 October 2009, the capacity to make rational and appropriate decisions in the workplace setting (T4 P30 L1-9). His reply included: "I think his capacity for rational thought wouldn't have been perfect by any means. When he's getting treatment for major depression and he's on a - been put on an anti-depressant you've have to expect some impairment of his capacities for thinking carefully and making good decisions." (T4 P33 L12-17)
In relation to the Appellant's workload his evidence included:

 Mr McDonnell was appointed as a trainee production supervisor in January 2008 and the Appellant was  Within a short period the Appellant and Mr McDonnell were able to divide responsibility for the factory at times. This the Appellant felt was the equivalent of an extra "half a person" (T2 P12 L4) from January 2008  In order to prepare for the days work, the Appellant usually started between 3:30am and 3:45am in 2007 prior to the employment of Mr Tana at JBS;  The Appellant recalled in 2008 being upset and reporting to Maureen Rae (human resource manager at JBS) regarding abuse he'd received from Mr Tana. Ms Rae requested the Appellant, Mr Tana and herself have a meeting in which they discussed Mr Tana's communication style and the Appellant's hours of work;  He recalled being told during the meeting to better utilise support resources available to him;  He was told also that management recognised his efforts and he agreed that participating in the meeting with Ms Rae and Mr Tana was a better option than going home as was his original intention;  The Appellant produced a statement for another proceeding in the Fair Work Australia jurisdiction wherein the Appellant stated Mr Tana had directed him not to start until 4:45am;  The Appellant recalled Mr Tana suggesting Mr McDonnell could perform some of the duties in the afternoon but this didn't happen straight away (T2 P43 L51 to T2 P44 L10) and  Mr McDonnell did the rosters for a time but Mr McDonnell used to make mistakes to the point where the Appellant would need to be involved and similarly with reporting requirements which were transferred to Mr McDonnell from the Appellant. [35] In the Appellant's evidence, he recalled fairly consistently abiding by the direction from Ms Rae and Mr Tana to start at 4:45am but that on occasions he came in earlier with the consent of Kevin Tana (T3 P24 L1-10). The Appellant was questioned regarding Exhibit 7 and Exhibit 8, the statements he prepared in relation to his Fair Work Australia matter dated 15 April and 27 May 2010 respectively. Further evidence of the Appellant included:  The Appellant accepted he'd received training which coupled with his experience meant he was quite an  He'd dealt with staff issues previously and was aware of the grievance process in place at JBS (T3 P29  He had not lodged any written grievance regarding Kevin Tana but had raised his concerns with Ms Rae in May 2008 and orally subsequently (T3 P30 L15);  The Appellant recalled JBS weren't profitable in the time preceding the engagement of Kevin Tana and he'd heard this led to the termination of the previous operations manager, Mr Kevin Jude (referred to as Kevin Yardey at times) and  With the arrival of Kevin Tana, weekly meetings of senior personnel became daily meetings and involved Kevin Tana, the Appellant, the planning and supply manager, quality assurance manager, the product development manger and the engineer. [36] The Appellant claimed to have frequently worked on weekends and the entries in the diary record book (Exhibit 9) weren't a record of all weekend work he performed he said. The Appellant further stated in his evidence:  Shift changes which followed the May 2008 meeting with Maureen Rae and Kevin Tana meant that the three distinct areas of production which commenced at 4am, 5am and 6am changed to a common start of 5am;  The Appellant denied Judith Wallace was assigned to assist him and only assisted him by helping out  Upon Lyn Dryer's absence from work, the Appellant acknowledged that, of her duties, Mr McDonnell performed checking chillers for production needs, rostering and finishing the days production reports;  The Appellant stated that his finishing at 2:00pm to 2:30pm was short lived as the work demands meant  Food management team meetings were introduced in early 2009 and involved senior employees including
The evidence from the Appellant regarding Mr Kevin Tana included:

[38] The Appellant claimed Kevin Tana swore at and abused him on a daily basis. This let up for a time following
the May 2008 meeting with Ms Rae for a time but returned to previous levels soon after (T3 P33 L1-15). The Appellant cited one example where, after being contacted by Kevin Tana regarding a problem and in reply explaining he was presently occupied in another area. This reply resulted, he said, in Kevin Tana saying "well get your fucking arse down there" (T3 P35 L1-48). [39] After Kevin Tana heard of the Appellant's sons problems he invited the Appellant and his son to go to the gym [40] Kevin Tana drove the Appellant and his son to the gym on one occasion, the Appellant drove on other occasions and the arrangement continued for "five, six maybe eight weeks" (T3 P82 L1-6). The Appellant felt belittled - bullied by Kevin Tana. [42] In the Appellant's evidence regarding Exhibits 5a to 5e containing extracts from workbooks and diaries. The Appellant denied falsifying the entries but acknowledged he'd had them for a long period (T4 P52 L23-25).
Evidence from the Appellant regarding his termination included:

The Appellant acknowledged conducting, in October 2009, a toolbox talk with forklift drivers where one of the points made during the talk was "wearing a seatbelt is a must. Any operator found not wearing a seatbelt will be referred to HR immediately" (T4 P85 L1-3). [43] In that the Appellant was experiencing difficulty in the witness box to the point where the parties and the Commission had reservations about a possible adverse impact on his health, the parties agreed the cross-examination not yet covered in this hearing would be dealt with by the admission into evidence of the Appellant's evidence in chief and the cross-examination with the admission into evidence of the transcripts of proceedings in the Fair Work Australia matter, to be considered along with Exhibits 7 and 8. [44] By agreement, Mr Geoff Yarham's witness statement was accepted into evidence without the need for him to be examined. The statement was initially prepared for the Fair Work Australia matter involving the Appellant and JBS. Mr Yarham had been an employee of JBS and its predecessor since 1973 and in a safety role since 1996. His statement included:  The Appellant stated there was a human resource reporting policy to be followed by supervisors in the event of breaches of policy and the Appellant supported the strengthening of the company approach to human resources;  The Appellant acknowledged having been given a final written warning on 25 May 2009 following an incident involving the Appellant as supervisor allowing two employees to continue working on a line without the person protective equipment being worn, namely gloves;  He claimed to have signed the final warning under duress;  The Appellant completed a five day safety officers course in 2005;  During his employment, the Appellant participated in various other training courses regarding or related  The Appellant participated in regular weekly meetings which discussed, inter alia, workplace health and  The Appellant conducted numerous toolbox talks with including on 7 October 2009 dealing with forklifts and wearing seatbelts and earlier toolbox meetings in January 2009 reinforcing the same message regarding the importance of wearing of seatbelts whilst driving a forklifts and  The accidental death of an employee following a forklift accident in early October 2009 prompted the
Evidence of Ms Maxine Rogers

[45] Ms Maxine Elizabeth Rogers worked with the Appellant until her departure from JBS in about April or May
2009. Ms Rogers was responsible for quality assurance which meant she was also responsible for inspecting the factory prior to production. This she said, brought her into regular contact with the Appellant. Her evidence included:  The Appellant's workload increased when Ms Dryer went off sick;  She noticed an adverse impact on the Appellant;  Staff numbers on "the line" were inadequate on occasion which caused her difficulty;  She ultimately left because she couldn't cope. There was "too much pressure" which she found  She recalled asking the Appellant to raise staff issues with Mr Tana and noticed him looking distressed  She carried a two way radio at work;  Ms Rogers overheard Mr Tana swear at the Appellant on the two way and heard Mr Tana say "I don't have a fucking supervisor to do the job myself" (T1 P45 L32-33);  That was the only occasion she heard Mr Tana swear;  She didn't witness Mr Tana speaking directly to the Appellant inappropriately;  She was not involved in the split up of Ms Dryer's role;  She wasn't aware of Ms Dryer's actual list of duties and wasn't aware of what, if any, had been distributed  In the two years she performed in the quality assurance role, she started around 3:00am;  In around 2007 she would notice the Appellant at work at 4:00am or a little earlier;  She said the Appellant started to come in earlier toward the end of her employment with JBS;  She couldn't remember him starting later;  Earmuffs were required to be worn in the production area;  Mr Tana spoke loudly over the 2 way radio but spoke normally face to face;  Swearing was very unusual on the 2 way radio;  Whilst initially claiming to be the sole author of her written statement, she later accepted she'd used the statement forwarded to her by Lisa Baker-Clark as a template (Exhibit 4) and  She said they (her and Ms Baker-Clark) worked together in similar circumstances and therefore had
Evidence of Ms Judith Ann Wallace

[46] Judith Ann Wallace, a witness for the Appellant, worked for JBS as a supervisor in the quality control area at
 She worked in tandem with the Appellant each morning preparing the factory for the days production and talked highly of the Appellant's ability and commitment to his work;  She noticed changes including higher stress levels in the Appellant following the arrival of Mr Tana;  She was instructed to assist the Appellant with work following Ms Dryer's absence and continued to assist  She believed the Appellant was "ok" coping with his workload;  When asked if she noticed the Appellant displaying signs of stress, she replied: "No, he was okay, working, yeah"." (T2 P51 L56-57)  When asked further regarding his stress levels, Ms Wallace's reply was: "Oh, yes, he used to come up to me and say, "I'm stressed out", you know, and I'd just used to say, "Calm down", you know, yeah"." (T2 P52 L2-4)  She also stated "he worked himself up a lot" (T2 P52 L13-14)  Ms Wallace was issued with a 2 way radio and she recalled Mr Tana frequently speaking "aggressively"  She recalled Mr Tana swearing over the radio at the Appellant and recalled reporting this to the technical service manager, Mr Chris Sanders, she said the swearing occurred "probably once a week" (T2 P53 L50-53);  In cross-examination Ms Wallace recalled the Appellant reporting feeling stressed at work since he took on the role of supervisor in 2001 and more frequently in the time since JBS took over the business (T2 P55 L52);  She described the state of the business at this time as "not too good" and believed Mr Tana was engaged  She said in early 2008 she was asked by Mr Tana to assume some more of the production supervisors duties and believed that because of Mr Tana's lack of experience in the value added environment, he relied to an extent on Mr Chris Sanders and the Appellant for information and advice;  Ms Wallace had never seen a duty statement for Lyn Dryer nor was she aware of how duties were distributed and her belief that the Appellant had assumed some of Ms Dryer's duties was founded on information provided by the Appellant;  She believed Mr Tana's swearing was born of his having worked in meatworks and was "just his everyday language" (T2 P61 L8-11). He used swearing generally but not to Ms Wallace as she was the only female with a 2 way radio and  She said the Appellant could also become short tempered and could "lose it" under pressure.
Evidence of Ms Lisa Baker-Clark

[47] Lisa Baker-Clark an employee of JBS at material times gave evidence for the Appellant. Her position was
process worker and her supervisor was the Appellant. Her employment with JBS ceased in 2009 prior to the Appellant's termination. Her evidence included:  Hearing Kevin Tana swear at the Appellant over the 2 way radio while in the product development kitchen which she visited from time in the course of her employment;  In her later evidence she "assumed" Kevin Tana was talking to the Appellant (T2 P72 L60 and T2 P77  She recalled on one occasion Mr Kevin Tana said "tell them to fucking go hard or go home" to the Appellant over the 2 way radio (T2 P70 L17-L21);  According to her recollection she heard Kevin Tana swear over the 2 way radio only once (T2 P70 L13);  She couldn't recall any occasion upon which she was either present or aware of an issue arising on the workshop floor over which the Appellant had to see Kevin Tana;  She recalled the Appellant exhibiting higher levels of stress after Kevin Tana commenced employment at  She recalled starting at 4am and the Appellant being already at work when she arrived;  The Appellant left with some exceptions at approximately 2pm once the afternoon shift was in place and  Did recall the production starting time being put back from 4am to 5am (T2 P81 L14-15). Regarding her statement prepared for the Fair Work Australia proceeding she said:  The Appellant asked her to prepare it;  The Appellant intimated to her the statement should reflect her opinion of the Appellant's attitude to  She showed her statement to Maxine Rogers as an example as Maxine Rogers had said she was uncertain regarding the production of such a statement and  She had discussed the seatbelt-forklift incident with the Appellant and recalled the Appellant saying "he should have told her to get straight off it but he let her drive it back to the forklift bay.
Evidence of Chris Saunders
[
49]
Mr Chris Saunders, Technical Manager with JBS gave evidence which included:  For two months he did the Appellant's job as well as his own after the Appellant left and found the  He worked five days at 12 hours per day and six hours for one day;  Couldn't have maintained both jobs longer than he did;  Hadn't heard Kevin Tana swear on the radio;  Had received comments from other staff but not complaints about Kevin Tana's methods;  He believed some staff had a whinge about some tasks set by Kevin Tana but denied having received  Judy Wallace expressed to him concern over Kevin Tana's confronting style but didn't make a report to him about Kevin Tana's comments to the Appellant;  He denied Ms Maxine Rogers had raised concerns about the Appellant's health with him;  He believed there was widespread frustration with aspects of production and there were differences over  He believed Kevin Tana's style was abrupt and direct;  The Appellant had mentioned his heavy workload at times;  The Appellant had also mentioned his long hours but never formally and had never raised any adverse  He was at an equivalent level to the Appellant in terms of seniority with JBS;  He hadn't observed any aspect of Kevin Tana's behaviour that would cause him to raise a complaint with  The Appellant never made a formal approach to him to do anything regarding working concerns. He believed the Appellant's comments amounted to the Appellant unburdening himself.
Evidence of Kevin Tana
[50]
Kevin Tana, operations manager of JBS evidence included:  He commenced with the food partners division of JBS in November 2007;  At the time there was one shift work worked. That increased to two;  Mr Dave McDonnell was appointed as a shift supervisor and the Appellant was involved with training  After three months Mr McDonnell supervised the permanent night shift;  Kevin Tana took over Ms Lyn Dryer's role when she left where upon the Appellant reported to him;  He had reservations regarding Ms Dryer's management style and believed supervisors should improve with respect to their awareness of the numbers of staff and their whereabouts and production details;  He believed the supervisors hadn't previously kept Mr Dryer adequately in formed;  He started pressing supervisors for up-to-date information throughout each shift and eventually the  He had reservations regarding the appellant in that he thought he didn't respond well to these  The Appellant should have finished work earlier once Mr McDonnell took some of the Appellant's duties;  He recalled the exchange between himself and the Appellant which preceded the Appellant going to the  He recalled the Appellant arriving at the factory office after he had requested production figures and the Appellant saying he had no time as he was busy. He (Kevin Tana) recalled saying if he had to get the figures himself, why would he need a supervisor;  It was at this point he recalled the Appellant saying he couldn't do this and that he (the Appellant) was  Following this Ms Rae requested a meeting between herself, Kevin Tana and the Appellant;  During the meeting with Ms Rae and the Appellant, Kevin Tana explained the importance of being appraised of the production progress and believed the Appellant understood;  He apologised for his comment about not needing the Appellant if he had to do the job himself;  He recalled Maureen Rae raising the Appellant's working hours and telling him to start at 5:00am to  Ms Rae sent the Appellant home and Kevin Tana believed the meeting ended positively;  He believed the Appellant generally complied with the later start time;  He didn't believe he raised his voice on the radio;  There was usually background noise and hearing protection was usually worn;  He said he liked the Appellant and had made positive comments about him in management meetings;  He invited the Appellant and his son to Taekwondo defence classes after learning of his sons problems;  The Appellant attended three or four times;  To Kevin Tana's knowledge the Appellant made no further complaints to HR or senior management after  Profitability of the facility improved;  Some of Lyn Dryer's responsibilities were passed to the Appellant;  The later shift start times and introduction of the afternoon shift reduced the Appellant's workload;  He had never threatened the Appellant's employment and believed he had no need to;  A series of tool box meetings we caused to be held following the death of an employee in a forklift  The Appellant was involved in conducting tool box meetings;  The information imparted involved specific instructions about the wearing of seatbelts;  When he became aware of the situation involving the pregnant employee driving a forklift while not wearing a seatbelt he interviewed her and reported it to HR;  He believed the Appellant should have instructed one of the ten or so other licensed forklift operators to  After the Appellant was sent home Kevin Tana saw all other supervisors to reinforce the safety message;  He recalled the meeting in which the Appellant had said words to the effect that given the same circumstances over he'd make the same decision and said he believed others at the meeting would do like wise;  He believed the Appellant's termination was justified given the seriousness of the issue and the earlier  He recalled the claim in his statement prepared for the Appellant's Fair Work Australia proceeding and accepted the claim he made in the statement that he didn't swear over the radio wasn't true;  He said he tried not swear of the radio but occasionally did including the work fuck and on occasions to  He had participated in management training courses which included bullying and harassment;  He denied repeated swearing and denied having ever been counselled about this or in connection with the  He denied making regular threats against the Appellant but had had a faint recollection of a radio comment to the effect if I have to go and do this, why do I need a fucking supervisor?;  The Appellant trained Mr McDonnell from December 2007 to April or May 2008 and Ms Lyn Dryer was  He denied telling employee's to, go hard or go home;  He denied Angela Pattermore's claim that he spoke inappropriately to her, the Appellant or others;  He accepted he would have instructed the Appellant to stop working on a particular task and go to another  He claimed that when he swore it was not directed at anyone.
Evidence of Maureen Rae

[51] Ms Maureen Rae's evidence included her recollection of the May 2008 meeting with the Appellant and the
meeting involving her, the Appellant and Kevin Tana which followed. She described the Appellant as having appeared very animated and concerned saying he was unhappy with the way Kevin Tana had spoken with him. The meeting addressed Kevin Tana's communication style and the working hours of the Appellant. She believed the meeting finished positively. The Appellant appeared happy and thanked both her and Kevin Tana. She believed the Appellant's concerns were resolved. [53] Ms Rae believed the hours worked by the Appellant and the hours he was actually required to work were two different matters. She was aware of his valuim use but not why or whether it related to the workplace. Ms Rae didn't make further enquiries regarding Kevin Tana's communication manner after the meeting but did have a follow up talk with the Appellant about his working time and early starts. Further evidence of Ms Maureen Rae included:  She was aware the Appellant took valium but hadn't discussed the reason for this with the Appellant;  She confirmed the Appellant performed some of Ms Lyn Dryer's work following her absence but recalled also the appointment of Mr McDonnell and that Ms Dryer's HR responsibilities reverted to the HR department;  She said the Appellant did do some of the work formally performed by Ms Dryer;  She recalled the Appellant having mentioned these extra duties to her and indicating a desire to keep  She was concerned at the Appellant's starting at 3:00am and told him not to. The Appellant expressed a preference to start early to do the job the way he wanted and she told him if he wasn't handling the work to talk with the afternoon shift co-ordinator;  She recalled Belinda Byrne mentioning the Appellant was taking valium but not the reason for this;  She had privacy concerns about raising this with the Appellant;  Belinda Byrne didn't raise Kevin Tana's manner of management with her;  There were no other formal complaints regarding Kevin Tana and  She received further reports that Kevin Tana and the Appellant had joined in the Taekwondo classes
Conclusion

[55] The essence of the conflict in the evidence of Dr Byth and Dr Nothling resides in the assessment of Dr Byth that
the Appellant's previous psychiatric issues were short lived and resolved compared with the assessment of Dr Nothling that the Appellant showed ongoing signs of mental illness particularly in the years proceeding what the Appellant claimed were his stress sources i.e.:  Unmanageable workload created by the absence and subsequent death of production manager Lyn Dryer  The arrival of Kevin Tana and the alleged associated bullying, demeaning treatment directed at the Appellant beginning in November 2007 and  The termination of the Appellant in October 2009. [56] There was a difference in the estimate of each psychiatrist regarding the Appellant's ability to make appropriate reasonable decisions in October 2009. Dr Byth believed the Appellant's capacity in this regard was diminished, Dr Nothling didn't. Dr Nothling first examined the Appellant in August 2010 while Dr Byth first saw the Appellant in May of 2011. I believe Dr Nothling was better positioned than Dr Byth to assess the condition of the Appellant. I also note the Appellant didn't fully inform Dr Byth of the pressures which has existed in his personal life [58] In any event, both agree the Appellant has a personal injury in the form of a depressive disorder. In Dr Byth's view, the Appellant had a major depressive disorder and in Dr Nothing's view, the Appellant had an exacerbation of a pre-existing anxiety and depressive disorder. [59] I am satisfied the Appellant suffered a personal injury, psychological in nature, and that his work was a significant contributing factor. The question now to be determined is whether this constituted an injury within the meaning of the Act, specifically, whether the psychological injury is displaced as an injury by virtue of s. 32(5) of the Act. [60] The Appellant's of claim was that management action was the cause of his injuries and the attack on the reasonableness of management action centred on:  Management response to addressing his workload;  His treatment at work by Kevin Tana; [61] The Appellant's claim to have taken on all of the work of Lyn Dryer upon initially, her absence through illness and subsequently her death is not accepted. I accept he took some of it. The evidence from the witnesses who believed the Appellant assumed Lyn Dryer's duties as well as his own was flawed. Neither Rogers nor Clark actually knew what duties Lyn Dryer performed nor were they aware of how Lyn Dryer's duties were distributed. [63] The evidence was that it was the Appellant who told Rogers and Clark that Lyn Dryer's duties had been placed onto him, in fact, the evidence was the duties were shared by the Appellant and others including Kevin Tana and Mr McDonnell. [64] Evidence accepted here was the Appellant had consistently been present at work for long hours, 12 hours not being unusual and that this was prior to the arrival of Kevin Tana or the departure of Lyn Dryer and prior to the claimed onset of the Appellant's alleged over-time injury i.e. March 2007. [65] Other evidence regarding workload was that on 28 May 2008 the Appellant met with Maureen Rae from Human Resources and Kevin Tana regarding inter alia working hours, the outcome was that the Appellant was instructed to start later and to utilise available resources better including the night supervisor, Mr McDonnell and to leave at around 2:00pm. This he did for a time, but slipped back to his earlier ways after a period, the result being a further instruction to start later. [66] The start of the production process was also put back from a usual start time of between 4:00am and 4:30am to 6:00am further lessening the need for the Appellant to arrive early and in mid-2008, Kevin Tana instructed Ms Wallace to assist the Appellant with setting up. This is regarded as evidence the Appellant's concerns were raised and discussed and addressed. [68] I don't regard the Appellant's having to infrequently attend the workplace out of hours or work on some weekends as contributing to an unreasonable workload. I accept the evidence that following the May 2008 meeting when it was noticed the Appellant was again arriving at the factory earlier than had he been instructed he was further instructed not to come in early. [70] On the question of workload, I'm satisfied the Appellant's hours of work were to a large degree, of his own making and had been so well before the events cited by the Appellant as causing his concerns namely, March 2007 or the departure of Lyn Dryer and the arrival of Kevin Tana. Once appraised of the Appellant's concerns in May 2008, management took immediate steps to accommodate the Appellant and then to monitor or "keep an eye on the situation". There was no further formal complaint or mention of workload made by the Appellant or anyone in authority to Maureen Rae prior to the Appellant's termination. [72] The attachment to Exhibit 7, the Appellant's explanation of matters which led him to his termination, is also helpful in reaching a conclusion on the conflicting evidence with respect to the Appellant's workload and state of mind at that time. His response (Exhibit 7 attachment RLB) included: "I seen the factory with many an issue on my mind each day without incident or mishap and complete all my supervisory duties to a high standard each day". "I have been working closely with Kevin Tana and Steve Thompson and Steve's team in maintenance in regards to a number of projects to help improve productivity of the plant and reduce downtime, along with other managers at food-partners.". "One such improvement is the introduction of production overview meetings, this has proved to be of great value…". [73] There is no indication in this document prepared by the Appellant, that there has been any ongoing stressors aside from a suggestion from the Appellant that he might benefit from training in the day to day running of the factory. [74] In this document the Appellant also alludes to "trouble with time framing" his day and stated this was the reason he was "…coming in and starting at the times I was a few months ago". He acknowledged having lacked trust in others and "taking it all on himself" which led him then to state: "I had a taken on more than I was able to for one person after so long with three staff covering all aspects of production and did not want to look like I could not handle the job…". "I am the type of person that will try and please everyone at the same time and get very frustrated with myself when I am not able to do this and feel I have failed sometimes this is where the passion comes from and I try to do it all myself.". [77] In my opinion it wasn't unreasonable management action which left the Appellant's workload at levels which stressed him. It was the Appellant's failure to properly raise matters with the proper persons. [78] The Appellant's workload was heavy. The Appellant's failure to raise it in a manner which set out his concerns to the appropriate level of management meant management were, prior to his response to the show cause letter, generally unaware of the effect workload was having on the Appellant. I find, on the balance of probabilities, management action in this regard was reasonable. [80] Regarding Kevin Tana's interaction with the Appellant, in my view, there are two important background factors which must be considered when assessing the reasonableness or otherwise of Kevin Tana's methods and manner in the workplace. Firstly, Kevin Tana was engaged at a time when the business was losing money and he was charged with turning that around and secondly, the facility within which the complained of interactions occurred was a meat processing and packaging factory. [82] While it must be said that neither of those factors would justify unreasonable behaviour, in particular, bulling, harassing or belittling behaviour, the first factor, economic performance would justify, among other things, a firm approach to the implementation of instructions especially, instructions regarding change. [83] The second, the nature of the workplace, is to be considered when assessing what might be acceptable types of communication between workers as opposed to offensive or belittling communication. [84] Kevin Tana swore, on his own evidence, he swore in his conversations from time to time but claimed to have sworn as a way of emphasising matters rather than directing abuse and on the evidence, I accept this. [85] I also accept that it is commonplace for workers in an establishment such as JBS to be far less sensitive to swearing and more given to it than they might be in say a library or school. In short, in my experience, a simple fact is that workers are more given to punctuating conversations with expletives in a processing plant than in some other workplaces. [86] I find the use of expletives in such circumstances does not, of itself, constitute unreasonable management action. This is not to suggest conversations, directions or comments with or without expletives, can't be belittling, bullying or threating. There is a difference between bad language and verbal abuse. The Appellant's evidence was that Kevin Tana's abuse was constant, even daily. The evidence of others included Ms Roger's who on one occasion heard Kevin Tana swear in a two way radio conversation with the Appellant. Ms Roger's noted Kevin Tana spoke loudly on the two way radio. She never directly witnessed Mr Tana speaking inappropriately to the Appellant face to face. [88] Ms Roger's said the factory was noisy necessitating the wearing of earmuffs by workers. She said the two way radio volumes were quite high and that Kevin Tana spoke at a normal volume when speaking directly with people. Swearing was banned on the two way radios and that's why the one occasion on which she heard Kevin Tana swear stuck in her mind. [89] Judy Wallace heard Kevin Tana swear at the Appellant over the two way radio. She never saw Kevin Tana swear directly at the Appellant. She raised Kevin Tana's radio manner with Mr Chris Saunders following which Kevin Tana's radio etiquette improved. Kevin Tana's language was, she supposed, his everyday language as he'd come from a meatworks. [90] Ms Jackson said Kevin Tanner swore at people regularly and when questioned she agreed the swearing was expressive and whilst the language was used in conversation with people it wasn't necessarily directed at them. She said she was used to the swearing "you hear it all the time" (T5 P105 L21-22). [91] Angela Pattemore recalled Kevin Tana swearing on two occasions. She was within earshot of a two way radio for 30% of her working time. Kevin Tana spoke aggressively to her once telling her she wasn't the "fucking centre of the universe and would have to wait her fucking turn" (T6 P32 L36-37). She overheard Kevin Tana tell the Appellant to go to the office quickly by saying "hurry the fuck up". I have not relied on the appellant's diary and work book entries, Exhibit 5A to Exhibit 5F. The entries purporting to record times at which the Appellant took offence to Kevin Tana's comments were all entered in a fashion which allowed serious contemplation of the possibility of them having been added at a date later than that claimed. Aside from there being only six of them the Appellant himself described there having been "one incident which really set me off" (T1 P28 L43-45). This was the incident he reported to HR manager Maureen Rae in May 2008. Considering the direct evidence from witnesses other than the Appellant with respect at the Appellant and the absence of any formal complaint from the Appellant after May 28 2008, I have formed the view, Kevin Tana's use of expletives in communication, whilst not ideal, didn't amount to unreasonable management action in the circumstances. [94] Belinda Byrne's evidence of the Appellant's contact with her and her subsequent actions or inaction is also not [95] Belinda Byrne was at material times working in the role of internal labour co-ordinator. She came into contact with the Appellant who, she stated, on occasions, expressed concerns regarding treatment by Kevin Tana. She stated the Appellant's comments were regarded by her as of a conversational nature and not in the form of a complaint but noted that in her view the Appellant had a "tough time" with Kevin Tana (Exhibit 26 para 13 and 14). Ms Byrne believed the information conveyed by the Appellant to her regarding taking valium was personal. She considered the Appellant's taking of valium as a "personal medical matter" between the Appellant and his general practitioner. [97] I don't regard Ms Byrne's inaction following receipt of information from the Appellant as unreasonable. In any event she wasn't "management" in the sense she had any control over the Appellant. I'm satisfied Ms Byrne's actions were the actions of a co-worker keeping a confidence. [98] I now turn to the stressor said to have resided in the alleged unreasonable nature in which management terminated the Appellant's employment. The Appellant had a senior and serious role in ensuring the employers workplace health and safety policies were followed. [99] The Appellant was given a written "final" warning regarding his failure to ensure company policy was enforced in relation to the wearing of safety equipment. This was in 2009 (Exhibit 11). The Appellant claimed to have been coerced into signing the warning. Nonetheless he did sign it and he was given it. [100] Whether he disagreed or not, at this point the Appellant knew he'd received a final warning regarding safety and should reasonably have known that a further failure to follow and apply JBS's workplace health and safety polices could lead to dismissal. [101] The Appellant, as part of his responsibilities, conducted regular toolbox meetings of workers in order to convey relevant information including safety information. [102] On 5 October 2009 there was a fatality at JBS involving a worker and a forklift [103] Within two days of the fatal incident and that the instigation of management, the Appellant conducted a toolbox meeting which directly addressed the importance of employees wearing seatbelts whilst operating a forklift at the plant. Attendees at the meeting signed an attendance document acknowledging having been provided with the information which included "wearing a seatbelt is a must. Any operator found not wearing a seatbelt will be referred to Human Resources immediately". [104] On 14 October 2009, a week after the toolbox talk, the Appellant, contrary to workplace health and safety policy, authorised a pregnant worker to continue to drive a forklift without wearing a seatbelt. The worker had complained to the Appellant about discomfort associated with wearing the seatbelt. [105] I accept the evidence of Dr Nothling that the Appellant was capable of making rational decisions at the time. The decision in question i.e: to permit or not permit the unsafe use of machinery was in any event, not a matter of great complexity. I also not that the Appellant considered the matter before making the decision. [106] Exhibit 7, attachment C, records the Appellant saying "I took into account the potential loss of the product Angela was moving". The compromising of safety for the sake of productivity should always cause concern for responsible management. [107] The company investigated. The investigation included an interview with the Appellant during which the Appellant was given details of the matter of concern. Management also expressed their concerns in correspondence to the Appellant dated 19 October 2009. The Appellant was given and took the opportunity to respond in writing. JBS considered the response and decided to terminate the Appellant. [108] The process was reasonable and having examined the evidence and material including Exhibit 7 and the previous warning, I don't believe the decision to terminate the Appellant amounted to unreasonable management action. [109] I find against the Appellant. [110] I dismiss the appeal. D.K. BROWN, Commissioner. Hearing Details: Mr M. O'Sullivan, counsel, instructed by McKeering Mr P. O'Neill, counsel, instructed by Q-COMP for the First Respondent. Mr A. Herbert, counsel, instructed JBS Australia P/L for the Second Respondent.

Source: http://www.qirc.qld.gov.au/resources/pdf/published/2012/december/decision_wc296_2011_191212.pdf

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United States Court of Appeals for the Federal Circuit Robert S. Brennan, Miles & Stockbridge P.C., of Baltimore, Maryland, argued for plaintiff-appellant. With him on the brief were Donald E. English, Jr.; Kurt C. Rommel and James T. Carmichael, of McLean, Virginia. Of counsel were Leona Marx and David Williams, II, Vanderbilt University, of Nashville, Tennessee. Kevin M. Flowers, Marsh

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