In Deanne Maree King v Workers' Compensation Regulator [2019] QIRC 134, Vice President O’Connor in the Queensland Industrial Relations Commission had to consider whether a particular witness should be permitted to give evidence in a hearing.
By way of background, the Appellant Injured Worker (the Injured Worker), made an application for compensation with a self-insured employer, the Coles Group (the self-insurer) for a work-related injury described in the application for compensation as "stress" and alleged a psychiatric injury (the claim). The Injured Worker’s claim was considered by the self-insurer. Two stressors were alleged. The first involved an industrial dispute over her rate of pay. The second involved the Injured Worker’s interactions with her Store Manager -which the Injured Worker alleged amounted to "bullying and harassment". The self-insurer investigated both claims and concluded that the action taken by the Store Manager in relation to the Injured Worker constituted reasonable management action taken in a reasonable way (see section 32 (5) of the Workers Compensation and Rehabilitation Act 2003 (the Act). The claim was rejected.
The Injured Worker sought a review of the self-insurers decision by the Workers Compensation Regulator (the Regulator). The Regulator confirmed the self-insurers decision.
The Injured Worker’ appealed against the Regulator’s decision to the Commission.
The Injured Worker was planning to rely on “similar fact evidence” in support of her case, namely that the Store Manager had a history of bullying. The Injured Worker planned to lead evidence from another co-worker to show that on another occasion, the Store Manager acted, in a particular way, in a particular situation, which would tend to prove that the Store Manager acted in a similar way on the occasions that were the subject of the second stressor alleged in the claim.
The Regulator opposed the leading of similar fact evidence from his co-worker. The Regulator submitted that the co-worker's evidence was inadmissible as similar fact evidence, irrespective of whether it was true. It was not relevant and was not probative of the allegations about the Store Manager’s behaviour towards the Injured Worker. The Regulator also argued that the evidence was “inherently prejudicial”.
The Commission observed this in relation to similar fact evidence:
“ [11] As a matter of general principle, if the similar fact evidence is logically probative, that
is, relevant to proving a matter in issue, provided that it is not unfair or oppressive and
the other side has had notice, it will be admissible.”
The Commission added that the recent cases supported the view that the essential criterion for the admissibility of similar fact evidence is relevance.
The Injured Worker argued that proceedings in the Commission were not strictly bound by the rules of evidence (see section 531 (2) and 531 (3) of the Industrial Relation Act 2016.
and had a “flexible” discretion as to how to receive evidence to “inform itself”. However, while noting that, the Commission also noted that the discretion afforded to the Commission under section 531(3) did not excuse it from applying the general law (at [17]).
The Commission concluded that the co-worker should be allowed to give her evidence. The Commission found that to the extent that evidence would be led from that witness that tended to be of a ”similar fact” to matters in issue - it was permissible for that evidence to be led from her.
The Commission found:
“ … [25] The overriding obligation of the Commission remains a duty to act judicially and to afford the parties procedural fairness. Consistent with that obligation is a recognition that in the conduct of proceedings before the Commission, the rules of evidence are, as observed by Evatt J in Bott "… a method of inquiry best calculated to prevent error and elicit truth." In my view, the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done.”
The Commission concluded the correct and proper approach to adopt in the circumstances was to permit the co-worker to give her evidence. But that the relevance and weight to be afforded to that evidence should be left to the ultimate trier of fact to determine after having the benefit of hearing the totality of the evidence.
The decision can be found here.
Principal