Alfonso Trudu and and and and Comcare
[2012] AATA 286
•11 May 2012
[2012] AATA 286
Division GENERAL ADMINISTRATIVE DIVISION File Number
2008/1919
Re
Alfonso Trudu
APPLICANT
And
Comcare
RESPONDENT
File Number
2008/3260
Re
Alfonso Trudu
APPLICANT
And
Comcare
RESPONDENT
File Number
2008/3271
Re
Alfonso Trudu
APPLICANT
And
Comcare
RESPONDENT
File Number
2008/4595
Re
Alfonso Trudu
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 11 May 2012 Place Brisbane In each application the decision under review is affirmed.
........................................................................
Deputy President P E Hack SC
Catchwords
COMPENSATION – Injury - psychiatric condition - adjustment disorder - attributed to employer - failure to obtain a promotion or benefit - not within statutory definition of “injury” - reasonable administrative action taken – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7(4), 14
REASONS FOR DECISION
Deputy President P E Hack SC
11 May 2012
Introduction
Dr Alfonso Trudu was an employee of the Minerals Division of the Commonwealth Scientific and Industrial Research Organisation (CSIRO) between 1998 and 2010. During 2007 and 2008 Dr Trudu suffered from a psychiatric condition described as an adjustment disorder. He attributed the onset of this condition to his employment and sought compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Comcare rejected his claims on the basis that the condition was the consequence of actions taken within CSIRO that prevented the condition satisfying the statutory definition of “injury”. The decisions were affirmed on reconsideration.
Dr Trudu seeks a review of those decisions.
As will appear, I am of the view that the various decisions were correct and should be affirmed.
The legislative scheme
By virtue of s 14 of the SRC Act, Comcare is liable to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. At the time of Dr Trudu’s first claim the term “injury” was defined in s 4 of the SRC Act in these terms:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or medical injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Dr Trudu was an employee and, in the injury (properly so called) and disease dichotomy, his condition was plainly a disease. That term was defined, also in s 4 of the SRC Act, as meaning:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licenced corporation.
Those definitions were subsequently amended[1] in relation to a disease, injury or aggravation that an employee sustains on or after 12 April 2007. From that point the terms injury and disease were defined by s 5A and 5B respectively in these terms:
[1] By the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54, 2007).
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Finally reference needs to be made to s 7(4) of the SRC Act which, relevantly, deems the employee to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease or aggravation.
The Factual background
The events that are relevant to these proceedings took place between 2006 and 2008. Comcare called six witnesses who worked in the Minerals Division of CSIRO during that period – Ms Linda Colla, the HR Manager; Dr Angelica Vecchio-Sadus, the Health, Safety and Environment Officer; Mr Markus Fietz, the Research and Development Manager; Mr Jonathon Campbell, who was Dr Trudu’s direct supervisor from August 2007; Dr Ralph Holmes, Dr Trudu’s supervisor prior to August 2007 and Dr Bart Follink, Chief of the Division. Mr Campbell and Dr Holmes (and Dr Trudu) were based at CSIRO’s Queensland Centre of Advanced Technology in Pullenvale; the remaining witnesses were based in Melbourne.
Despite trenchant (but unfocussed) criticism of these witnesses by Dr Trudu I see no reason not to accept the accuracy and reliability of their evidence. It is not at all clear to me that Dr Trudu disputes their evidence: his emphasis seems more to be on the inferences that ought be drawn from the facts. In that regard I note that, as part of his written submissions, he produced a document entitled “facts in dispute”[2] which does not suggest that any primary facts are in dispute.
[2] Exhibit 36.
The narrative that follows is taken mainly from the various witness statements and the contemporaneous documents[3], supplemented by matters that appear to be common ground.
[3] Exhibit 5.
Dr Trudu is undoubtedly a highly qualified scientist. He has a doctorate from the University of Genoa (considered to be the equivalent of a master’s degree in science), a master of science in geology from Queen’s University in Ontario and a doctorate in geology from Monash University. He commenced employment with the Minerals Division of CSIRO in January 1998. At least from 1999, and at all material times since, he was classified at level 5. His supervisor, Dr Holmes, was classified at level 8 and the Chief of Minerals, Dr Follink at level 9.
In August 2004 a senior research scientist in the Minerals Division left the employ of the CSIRO with the result that three other employees working in the same area were required to perform tasks and responsibilities above their classifications[4]. CSIRO had a system in place where additional remuneration, in the form of an Enhanced Responsibility Allowance (ERA) could be paid to those employees. Mr Fietz, in consultation with Dr Holmes and Ms Carruthers, the HR Manager at the time, determined to pay an ERA to each of the three employees whose workload and responsibilities had increased.
[4] Exhibit 8 at [4].
Dr Trudu was not given an ERA. It seems clear that that irked him. He obviously felt (and continues to feel) that he was poorly treated. In May 2006 and June 2006 Mr Fietz had informal discussions with Dr Trudu and explained the rationale for the decisions to pay ERA’s to the three staff but not to him.[5] Dr Trudu expressed his disagreement with the decision to pay the ERA’s in discussions with Dr Holmes.[6]
[5] Exhibit 8 at [7].
[6] Exhibit 12 at [7].
For at least two years prior to May 2006 Dr Trudu had been dissatisfied with the level of his classification and had expressed that dissatisfaction to Dr Holmes[7] and to Mr Fietz.[8] Dr Trudu had meetings with Mr Fietz in May and June 2006 in which Mr Fietz assisted in the preparation of an application for re classification to level 7. Dr Holmes had input into that document as well and provided written endorsement for reclassification to level 7.
[7] Exhibit 12 at [8]; oral evidence.
[8] Exhibit 8 at [8].
The application was not successful. The internal CSIRO committee met on 26 July 2006 and determined that Dr Trudu did not warrant reclassification to either level 7 or level 6. Dr Trudu was advised of this outcome in August 2006 by Dr Follink when Dr Follink was visiting Pullenvale. Formal notification, including brief reasons for the committee’s decision, was given by letter dated 23 August 2006.
While matters involving reclassification had been progressing Dr Trudu had also raised with Mr Fietz two particular matters of concern to him – that others had received rewards outside the usual reclassification process that had been denied to Dr Trudu, and that Dr Trudu had not been provided with adequate or appropriate opportunities to demonstrate higher level competencies and so progress his career.
The first area of concern related to the award of ERA’s to the three staff. It is plain that Dr Trudu was aggrieved that these three were rewarded but that he was not. Some idea of Dr Trudu’s view can be gained from his statement[9] detailing the sequence of events in application 2008/1919. By reference to “problems” he had with Dr Holmes he said:
The problems related to the way he managed staff and provided them with ERA’s. The most obvious case was related to Mr Garden’s confirmation of his ERA in September 2005 against my opinion as his supervisor at the time. My opinion was independently validated by Messers [sic] Young and Manual, my peers and colleagues who had Mr Garden in projects they were managing. I found the overruling of my assessment of Mr Garden’s performance by Dr Holmes particularly disrespectful since he has no proven expertise in geology through degrees or publications, neither was he directly involved in the technical side of the projects. I am a fully qualified geologist. Mr Garden is a B Sc graduate in geology. … On the other side, at the time Dr Holmes gave ERA’s to my colleagues, my responsibilities had actually increased significantly, as a result of the resignation of Dr Clout in August 2004. When I approached him a number of times about the possibility of being also granted an ERA, Dr Holmes constantly refused.
[9] Exhibit 26.
In early September 2006 Mr Fietz sent Dr Trudu a lengthy email dealing with his concerns.[10] Later on the same day Dr Trudu notified Dr Follink that he intended to appeal the decision to refuse his reclassification.
[10] Exhibit 5, pages 38-39.
There was a third strand to the difficulties that Dr Trudu was having with his supervisors and that related to his annual performance agreement (APA). In theory at least an APA was to be prepared annually to set the goals and objectives to be achieved in the ensuring 12 months and the results monitored at the conclusion of that period. In July 2006 Dr Holmes prepared, and sent to Dr Trudu, a draft APA. It was returned by Dr Trudu on 8 August 2006, unsigned and with some changes but with a note to this effect:
I [would] like to wait the outcome of my reclassification case before I sign my new APA, as some modifications may become necessary, if I do not succeed in my case at a suitable level (CSOF6.1 is NOT suitable). For example, there will have to be an agreement with you in the APA that all of my international activity will be assessed as CSOF8 performance. There will be more conditions added to my APA, e.g. a possible ERA etc.
Dr Trudu met with Dr Holmes to discuss the 2006-2007 APA on 30 August 2006. Dr Trudu insisted that the APA ought record “benchmarks” with reference to classification levels 7 and 8. Dr Holmes did not agree with this practice, preferring to determine in review the extent of Dr Trudu’s performance against the various objectives. Further drafts were prepared during the latter part of 2006. Dr Holmes completed the APA by 19 December 2006 however Dr Trudu insisted on adding benchmarking statements. Dr Holmes deleted these comments (by drawing a line through them) and forwarded the APA to Mr Fietz for his approval or otherwise.
In December 2006 Dr Trudu found a further issue on which to disagree with Dr Holmes. At that time a decision was required about the overall management of a project involving analysis of iron ore samples for a third party. Part of the project was undertaken in the CSIRO’s Perth office and part at Pullenvale where Dr Trudu was based. Dr Holmes did not favour Dr Trudu taking overall management of the two components (the outcome sought by Dr Trudu) and appointed Dr Trudu to supervise the Pullenvale component and a Perth employee to supervise the Perth component.
More generally in the workplace, Dr Trudu did not attempt to hide his dislike of Dr Holmes. On 19 October 2006 Dr Holmes had occasion to counsel him about denigrating his colleagues, including Dr Holmes. Dr Trudu tried to negotiate stopping that behaviour if his demands for reclassification etc. were met. Dr Holmes rejected that attempt. Reports that Dr Trudu’s comments were undermining Dr Holmes’ position and authority were received by Mr Fietz. That resulted in a meeting between those two on 25 October 2006. Mr Fietz cautioned Dr Trudu about this unprofessional behaviour. Dr Trudu told him that he had lost confidence in Dr Holmes as his supervisor and wanted him replaced. Mr Fietz suggested that Dr Trudu put his concerns in writing.
It is not clear to me whether Dr Trudu did so however he did complain to Mr Fietz about the split responsibilities of the iron ore project. He sent a lengthy email to Mr Fietz on 16 December 2006 suggesting, amongst other things, that he be the “overall leader” of the project. Mr Fietz was not prepared “to override the agreed arrangements” and assign overall project leadership to Dr Trudu. Dr Trudu responded with a further email of 20 December 2006 which was copied to a number of other CSIRO staff. In a passage to which Mr Fietz took offence he said:
I find your attitude of continuously requesting me to prove myself in fields where my achievements have been recognised even by Ralph [Holmes] as my supervisor and yourself in writing, to be borderline harassment. If you continue along this line, I will need to report you to the Chief [of the Minerals Division] and, if necessary above, for appropriate action as I feel victimised by you. It is time you give me some credit for my work, as Ralph has just shown regarding the comments on Mike’s draft. I take a dim view of the way you are acting as the R & D Manager in Minerals on this occasion.
There followed a series of email communications between Mr Fietz and Dr Trudu. It is not necessary to recite the detail of the message however I observe that those from Mr Fietz are written in a professional and objective tone and seem to me to be perfectly reasonable both in tone and in content. The same cannot be said for Dr Trudu’s emails. In his email of 4 February 2007 Dr Trudu, having asserted that he had lost trust in Dr Holmes completely, requested that a temporary change be made to his supervisor and nominated a person to be his supervisor. Mr Fietz, he said, did not “have the technical expertise” to supervise him.
On 5 February 2007 Mr Fietz responded to Dr Trudu’s complaint about the removal of bench marking. He decided that,
…it is inappropriate to link individual APA objectives with a specific predetermined CSOF levels [sic] as you propose.
There were further emails on the topic culminating in one from Dr Trudu to Mr Fietz of 9 February 2007 which commenced,
Thank you for your determination.
I refuse to accept it.
He also refused to accept Dr Holmes as his supervisor.
Mr Fietz reported the tone of Dr Trudu’s correspondence to Dr Follink and to Ms Colla. They considered that Dr Trudu’s behaviour had been unacceptable and potentially contravened the CSIRO code of conduct. They determined to meet Dr Trudu to discuss the concerns. The meeting took place at Pullenvale on 28 February 2007. Dr Trudu was accompanied by a support person. Extensive minutes were prepared and produced. Dr Trudu did not suggest at the time, or in the course of the hearing, that the minutes did not accurately record the discussions at the meeting. Again the minutes demonstrate that the approach of Dr Follink and Ms Colla was reasonable and objective. The minutes demonstrate that Dr Trudu was somewhat chastened, accepting that in his emails to Mr Fietz he had overreacted and suggesting that his behaviour had been a “strategy” for changing his career.
By letter of 28 March 2007 Dr Trudu was given “an official written warning about [his] unacceptable behaviour in the workplace.”
In the meantime, two events of significance had occurred – Dr Trudu’s appeal against the refusal to reclassify him had been heard on 8 March 2007 and on 12 March 2007 he consulted his general practitioner, Dr Laister, complaining of stress in the workplace. As to the latter, it is of significance that Dr Laister’s clinical notes record,
Denied promotion 8/06, situation has been undermined since 10/06.
In any event Dr Leister certified Dr Trudu as being unfit for work from 12 March 2007 to 26 March 2007 and continued to certify him as unfit until 13 August 2007 when she certified him as fit to resume suitable duties from 14 August 2007.
Dr Trudu lodged his first (of four) claims for compensation on 1 May 2007 In response to a question directed at the “action, exposure or event” that caused the injury or illness, Dr Trudu wrote,
Lack of recognition of my value in the workplace. My perception that my superiors failed in their duty of care towards me. Perception of on-going harassment of me.
Dr Trudu continued on leave. On 22 May 2007 he was seen by Dr Greg Apel, a consultant psychiatrist, at the request of CSIRO for the purpose of ascertaining whether Dr Trudu was fir for work. Dr Apel considered that the psychiatric condition that best explained the history and examination was one of personality difficulties. The problems with Dr Trudu, he felt, lay in the industrial realm rather than in the medical realm. He expressed the opinion that Dr Trudu was fit for work on psychiatric grounds, but may not be suitable for work because of the extent of his anger and the limits to his control over this.
At the request of Dr Trudu, mediation was undertaken in late May 2007 however Dr Trudu’s grievances were not able to be resolved.
CSIRO arranged for Dr Trudu to be seen by Dr E McLachlan, another consultant psychiatrist, on 12 July 2007 for a further opinion on his fitness for work. Dr McLachlan concluded:
I found him fit for work duties; however, it appeared that a Return to Work program may be difficult to implement in view of Dr Trudu’s specific requirements to agree to return to his workplace. Dr Trudu stated that he expected that there be further external independent investigation of his claims though he admitted that he had not yet made any formal complaints or grievances. He also stated that he could not work for any of his Line Managers which included five (5) people from Melbourne and instead wished to report to somebody who was outside of his Division.
Dr Trudu commenced treatment with another consultant psychiatrist, Dr Catherine Curson, in early July 2007 and he has continued to see her for treatment ever since.
Dr Vecchio-Sadus became involved with Dr Trudu’s condition at least by February 2007 when Dr Trudu lodged a health and safety incident report which Dr Vecchio-Sadus investigated. She was appointed Dr Trudu’s rehabilitation case manager once he had made a claim for compensation. In the initial stages she consulted with Dr Leister concerning Dr Trudu’s ability to return to work. She had considerable dealing with Dr Trudu in July 2007 regarding his possible return to work. Dr Trudu was, apparently, prepared to return to work but only upon his terms.[11]
[11] See exhibit 5, page 303.
By early August 2007 Dr Trudu had used all of his sick leave. CSIRO had reports from two independent psychiatrists – Dr Apel[12] and Dr McLachlan – who each concluded that Dr Trudu was capable of performing his duties. On the basis of those reports Dr Follink wrote to Dr Trudu on 9 August 2007 directing him to return to work on 20 August 2007. The letter advised that Dr Vecchio-Sadus would discuss a return to work plan with Dr Trudu but emphasised that previous management decisions would not be revisited. Dr Trudu, in fact, returned to work on 14 August 2007 following Dr Leister certifying him fit to do so on suitable duties. Dr Vecchio-Sadus prepared a return to work plan which was agreed to be Dr Trudu and by Dr Campbell who, by agreement, had been nominated as Dr Trudu’s direct supervisor in place of Dr Holmes.
[12]A further report of 20 July 2007 had been obtained from Dr Apel directed to Dr Trudu’s capacity to undertake his usual duties.
During 2007 Dr Trudu had been the vice president of the International Council for Applied Mineralogy (ICAM) and chair of the organising committee for the International Congress for Applied Mineralogy scheduled to be held in Brisbane in September 2008. CSIRO had agreed to jointly organise this conference. After his return to work in August 2007 Dr Trudu attended a meeting with Dr Holmes and Mr Campbell to discuss his duties. In the course of that meeting Dr Trudu announced that he proposed to resign as vice president of ICAM and as chair of the congress organising committee. Dr Holmes advised him that to do so without valid reason would not be viewed favourably by his peers in the international mineralogy community or in CSIRO. Despite that warning, on 27 August 2007, Dr Trudu sent an email to the President of ICAM (later copied by him to persons within CSIRO and outside it) in these terms:
I have resumed my duties at the office a fortnight ago after five months of sick leave. This came as a result of very stressful conditions at work over the previous six months. Given my current conditions of employment (i.e. I am still being paid at a level for which international activities are not part of my duties, neither are all the decisions and technical knowledge which are, in my view, essential in making a multi-faceted event like ICAM 2008 successful), I tender my resignations as ICAM 2008 Chairperson and IMAM Vice-President. As a result of extensive, deep and (from my point of view) still unresolved disagreements about the assessment of my performance over the nine years of my employment with the CSIRO, I have completely lost motivation to be involved in international activities related to chairing a top level conference as ICAM 2008 is.
On 29 August 2007 Dr Trudu went to see Mr Campbell to tell him that the President of ICAM had asked him to reconsider his resignation and was concerned that the conference might be taken over by commercial interests. Mr Campbell made a diary note of the conversation. It was not challenged by Dr Trudu. It recorded, relevantly,
[Dr Trudu] asked whether there was any change in CSIRO position on his higher level duties etc. I said no – there was no offer on the table of that. He said that he would respond to the ICAM President saying that he had talked to me and CSIRO would not change their position on his higher level duties so he would not reconsider…
Mr Campbell was concerned about the sending of this email and forwarded a copy of the email to Ms Colla. Ms Colla sought advice from CSIRO’s workplace relations staff whether Dr Trudu’s email would amount to a breach of the CSIRO Code of Conduct. She was told that it did. In the result Mr Campbell arranged for Dr Trudu to attend a meeting on 10 September 2007 to discuss the sending of the email by Dr Trudu. Ms Lyndelle Bailey from CSIRO People and Culture also attended the meeting as did Dr John Read, Dr Trudu’s support person. Again, I did not understand Dr Trudu to contest the accuracy of the detailed minutes of the meeting. They record, amongst other things, Ms Bailey noting that she had counselled Dr Trudu against sending the email when he had sought her advice on its terms and that detailing the reasons in the manner that Dr Trudu ultimately did, would be “unprofessional and unnecessary”. She gave Dr Trudu alternative phrases that he could use.
Dr Follink was informed by Mr Campbell of his investigation into Dr Trudu’s email. He decided to have a meeting with Dr Trudu on 3 October 2007 at 12:30 pm. Mr Campbell gave Dr Trudu verbal notice on 1 October 2007 that Dr Follink wished to meet with him to discuss the outcome of his deliberations regarding Dr Trudu’s resignation from ICAM. Dr Follink confirmed the meeting by email the same day.
Dr Trudu did not attend the meeting. He lodged his second compensation claim on 1 October 2007 for a condition he described as “psychological injury (adjustment disorder)”. He gave this description of the circumstances of the injury:
Working in my office. Without prior warning I was compelled by my supervisor to attend a formal meeting within 5 hours on the same day despite of my prearranged commitment (visitor and GP related to Comcare claim). Supervisor requested me to attend a formal meeting dealing with unspecified accusations about the content of one of my emails. The attendance of the meeting without given a chance to defend myself properly.
On 2 October 2007 Dr Trudu saw Dr Curson who certified him to be unfit for work up to 9 October 2007. She later extended that to 30 October 2007, noting that whilst on sick leave Dr Trudu “should not receive documents or emails from his employer.”
On 4 October 2007 Dr Follink sent an official warning letter to Dr Trudu’s home address, presumably the letter that prompted Dr Curson’s additional note.
Dr Trudu saw Dr Apel again on 16 October 2007. Dr Apel remained of the view that he had earlier expressed. On the basis of that report, Mr Fietz (as the acting Chief of the Division in Dr Follink’s absence) sent Dr Trudu a letter dated 2 November 2007 directing him to return to work on 7 November 2007. Dr Trudu returned to work as directed.
On 6 November 2007 Dr Trudu lodged his third compensation claim in relation to an “injury” first noticed about 3 pm on 1 October 2007. His description of the circumstances of the injury suggests that it was a consequence of being informed of the forthcoming meeting with Dr Follink.
On 21 November 2007 Mr Fietz wrote to Dr Trudu requesting that he attend a meeting to discuss a proposed investigation of Dr Trudu’s conduct, as detailed in some length in an accompanying letter of the same date. The meeting took place as planned and Dr Trudu was invited to respond to the various matters particularised. He was given seven days in which to provide his response. Thereafter representations were made on Dr Trudu’s behalf that the proposed investigation ought not be undertaken.
On 11 January 2008 Mr Fietz decided to proceed with the formal investigation and notified Dr Trudu of that fact. He appointed Mr Paul Walker from the People and Culture section of CSIRO to undertake the investigation. That prompted Dr Trudu to object to Mr Walker’s appointment on the basis that Mr Walker was a colleague of Ms Colla. Mr Fietz declined to appoint another investigator.
In late January 2008, and prior to the commencement of the investigation, Dr Trudu requested recreation and long service leave from 11 February 2008 to 6 March 2008. That request was declined on the basis that the granting of such leave was subject to the operational requirements of CSIRO and Mr Fietz was of the view that it was in the best interests of all parties that the investigation of Dr Trudu’s suspected misconduct be completed as soon as possible. Given that it was unlikely that the investigation could be concluded before 11 February 2008 the request was refused however Dr Trudu was informed that if there were compelling reasons for the leave Mr Fietz was prepared to consider them.
Dr Trudu lodged the fourth compensation claim on 7 March 2008. The events claimed by him to have caused his injury were the receipt by him of various emails from CSIRO in January and February 2008.
In the meantime, Dr Vecchio-Sadus was continuing with her efforts at Dr Trudu’s rehabilitation given that Dr Trudu had been absent (again) from work since 7 February 2008. She arranged for him to be seen by Dr Apel on 25 March 2008. Dr Trudu rescheduled that appointment (without any explanation to Dr Vecchio-Sadus) to 15 April 2008. On 14 April 2008 Dr Trudu provided a letter to her regarding that appointment. It read:
Alfonso Trudu has been ordered to see a specific psychiatrist by his employer, CSIRO, for an opinion as to his fitness to return to work. Alfonso believes he will not have an independent evaluation from this psychiatrist due to previous interactions they have had. It is my opinion that Alfonso should see another psychiatrist for an independent opinion.
Dr Curson
On receipt of that letter Dr Vecchio-Sadus attempted, unsuccessfully, to contact Dr Curson. She contacted Dr Trudu to ascertain whether he was proposing to attend the further appointment that had been made with Dr Apel. Dr Trudu attended the appointment but his behaviour was agitated and aggressive and eventually Dr Apel asked him to leave.
It appears that Dr Trudu was made redundant in 2010 without having returned to work.
Procedural history
Dr Trudu’s first claim (made on 1 May 2007) was rejected by a determination made on 19 September 2007. That determination was affirmed on reconsideration on 7 March 2008. That decision forms the subject matter of application 2008/1919, lodged on 6 May 2008.
The second claim (1 October 2007) was rejected by a determination made on 11 February 2008, affirmed on reconsideration on 22 May 2008. It is the subject matter of application 2008/3260, lodged on 18 July 2008.
The third claim (6 November 2007) was rejected on 15 March 2008 and that determination was affirmed on reconsideration on 23 June 2008. This decision is the subject matter of application 2008/3271, lodged on 18 July 2008.
The final claim (7 March 2008) was rejected on 19 May 2008 and affirmed on reconsideration on 5 August 2008. It is the subject of application 2008/4595, lodged on 2 October 2008.
I note that the hearing and determination of these applications has been delayed considerably due to Dr Trudu’s inability, as certified by Dr Curson, to cope with the proceedings and that the proceeding, when they did come on for hearing, were conducted at a pace to suit Dr Trudu to ensure that he was not unduly stressed by them.
The issues for decision
Two issues fall for consideration:
(1)From what condition did Dr Trudu suffer?
(2)Was it a condition that is excluded from the statutory definition by operation of one or both of the statutory exclusions?
The medical evidence
The submissions for Comcare[13] accept that,
The preponderant weight of [the medical] evidence established that the applicant did suffer an “injury” in the sense that he meets the Mooi[[14]] threshold – “condition that is outside the boundaries of normal mental functioning and behaviour” – and that injury, however described, is linked to his work duties.
Reference to the evidence demonstrated that the concession is rightly made and should be accepted.
[13] Exhibit 38 at [65].
[14] See Comcare & Mooi (1996) 69 FCR 439, 444.
Dr Apel, whose reports of 4 June 2007, 20 July 2007, 23 October 2007 and 23 April 2008 are based on interviews with Dr Trudu on 22 May 2007 (following the lodging of the first claim), 16 October 2007 (following the lodging of the second claim) and 15 April 2008 (after the fourth claim), considered that Dr Trudu suffered from personality difficulties with marked paranoid traits[15] but found no evidence of significant major psychiatric illness.[16] He did consider, however, that there “may well be a degree of adjustment disorder”.
[15] Exhibit 5 at page 214.
[16] Exhibit 5 at page 653.
Dr De Leacy, who saw him on 5 July 2007, considered that the appropriate diagnosis was of adjustment disorder with anxiety[17] (in the report of 12 July 2007) and of adjustment disorder with anxiety and depressed mood in the report of 12 February 2008.
[17] Exhibit 5 at page 276.
In her report of 5 November 2007[18] Dr Curson (who had, at that stage, seen Dr Trudu on eight occasions) made a diagnosis of adjustment disorder with anxiety and depression. She remained of the same view, in her subsequent report of 15 January 2008.[19]
[18] Exhibit 5 at page 450.
[19] Exhibit 5 at page 524.
Dr Alison McColl, who saw Dr Trudu on 2 November 2007, concluded that Dr Trudu suffered from adjustment disorder with anxiety.[20] For completeness I note that Dr McLachlan, who saw Dr Trudu on 12 July 2007, did not find any diagnosable condition.
[20] Exhibit 5 at page 485.
In light of the evidence I am satisfied that it is appropriate to act on Comcare’s concession and regard the appropriate diagnosis, at all material times, as one of adjustment disorder. Anxiety and depression are to be regarded as merely symptoms of that condition rather than separate conditions.
Whilst there is some evidence that Dr Trudu was treated (by an acupuncturist) with acupuncture, homeopathy and vibrational medicine for “anxiety and stress”[21] the first record of Dr Trudu seeking medical treatment is his visit to Dr Laister on 12 March 2007.[22] It is that date which, by operation of s 7(4) of the SRC Act, is to be regarded as the day on which Dr Trudu was taken to have suffered an injury (other matters of that definition being satisfied). It would not change the position if the date of the first consultation with Ms Bryant, the acupuncturist, was taken as the date on which medical attention was first sought.
[21] Exhibit 5 at page 43.
[22] Exhibit 5 at page 145.
On either basis the first claim falls to be decided by reference to the SRC Act prior to the April 2007 amendments. The remaining claims were lodged following those amendments. The medical evidence, understandably, does not make clear whether the conditions that were the subject of the second and subsequent claims amounted to a continuation of the first condition or separate aggravations of an underlying condition. Given the history, and the way in which Dr Trudu puts the claim, I propose to treat the subsequent claims as aggravations of the earlier condition. On that basis the subsequent claims fall to be determined by reference to the “reasonable administrative action” regime although on the view I take of the matter (as I explain below) the same results is reached whichever statutory regime is regarded as having application.
An injury?
As has been noted, the pre-amendment definition of injury did not include a disease or aggravation suffered by the employee as a result of:
·Reasonable disciplinary action taken against the employee; or
·Failure by the employee to obtain a promotion, transfer or benefit in connection with employment.
Comcare submits that there were numerous events answering the description of reasonable administrative action or a failure to obtain a promotion or benefit that contributed to Dr Trudu’s initial condition. It identifies,
(1)CSIRO’s decision to not grant an ERA to DR Trudu in 2005 and 2006;
(2)The decision not to increase his classification above level 5;
(3)The decision to refuse to allow Dr Trudu to include benchmarking against higher classifications in his APA;
(4)The decision not to assign overall leadership of the iron ore project to Dr Trudu;
(5)The undertaking of the disciplinary interview on 28 February 2007; and
(6)The hearing of the promotion appeal on 8 March 2007.
In my view those submission must be accepted and Dr Trudu’s case, that he was the victim of persistent bullying, must be rejected.
Both contemporaneous documents and more recent ones and the evidence demonstrate that to be so. The evidence of Ms Colla, Dr Holmes and Mr Fietz, which I accept, was that Dr Trudu was dissatisfied with CSIRO’s failure to provide him with an ERA. Dr Trudu’s statement, extracted in paragraph [17] above, makes that dissatisfaction plain. It is inherent in Dr Trudu’s statement, in his first claim, that the cause of his condition, at least in part, was a “lack of recognition of my value in the workplace.” And it emerges clearly from Dr Trudu’s own document, dated 9 November 2007, setting out the sequence of events,[23] which refers to his discussions with Ms Colla, on 13 May 2006,
regarding the granting of Enhanced Responsibility Allowances (ERA) to selected staff in CSIRO Minerals at Pullenvale from September 2004 onwards.
[23] Exhibit 31.
More recently, in his written submissions,[24] Dr Trudu returned to the same theme.
[24] Exhibit 37.
The position is the same in relation to Dr Trudu’s failure to obtain a reclassification. Dr Trudu’s response to that failure is caught up in his reference to a “lack of recognition of by value in the workplace” and in the “sequence of events” document prepared by him.[25]
[25] Exhibit 26.
A similar theme emerges from histories in the contemporaneous medical reports.[26]
[26] See e.g. exhibit 5 at pages 210-211 and 272-273.
Dr De Leacy expressed his opinion of the cause of Dr Trudu’s condition in this way:
The causative factors in this case appears [sic] to be the original problem that occurred with him being denied his promotion. Following this, he took various actions against his superiors which have led to escalation of action against him and this has become a snowballing effect, which has led to progression of the condition. The condition is now becoming more dominated by anger and determination to have justice done.[27]
The body of Dr De Leacy’s report amply demonstrates the signs and symptoms that support that opinion.
[27] Exhibit 5 at page 565.
It is undoubtedly the case that Dr Trudu’s failure to receive an ERA, as he believed he was entitled to, amounted to “a failure…to obtain a…benefit in connection with his…employment.” Equally it is clear that Dr Trudu’s failure to obtain the reclassification that he sought amounted to a failure to obtain a promotion in connection with his employment. The evidence is overwhelming that his condition in mid-2007 when he was first seen by psychiatrists was caused by a combination of those failures.
That being so Dr Trudu’s condition, subject of the first claim, is excluded from the statutory definition of injury at the time of that claim and was rightly rejected. That decision must be affirmed.
The remaining claims fall to be considered under the amended definition. Thus the question that arises is whether Dr Trudu’s condition at the time of those claims was an aggravation of a physical or mental injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Dr Trudu’s employment.
Again, the evidence is overwhelmingly to the effect that it was. It seems likely that the original causes of complaint – the failure to obtain an ERA and a reclassification – were still operating on Dr Trudu’s mind at the time when the subsequent claims were lodged. The opinion of Dr De Leacy has already been noticed. But to those issues are the further matters that compound the relationship between Dr Trudu and others at CSIRO – the disagreement about benchmarking Dr Trudu’s APA, the series of disagreements with Dr Holmes, the emails and the resultant disciplinary action taken in March 2007, the division of responsibility for the iron ore project, the directive in August 2007 to Dr Trudu to return to work, Dr Trudu’s actions regarding ICAM and the resultant disciplinary actions and Dr Trudu’s refused leave request in February 2008.
Dr Trudu has not presented his case on the basis that any particular action by CSIRO was unreasonable, or that is was undertaken in an unreasonable manner. His case broadly stated is that he was the victim of sustained bullying and harassment. I will deal, in particular, with the arguments presented by Dr Trudu in his written submissions however I should say immediately that I reject as unfounded the notion that Dr Trudu was bullied or harassed by CSIRO staff or their actions. The actions taken with respect to Dr Trudu were eminently reasonable and were undertaken in a reasonable manner.
It is appropriate, in explaining why that is so, to note that Dr Trudu struck me as a very intelligent, yet quite manipulative, person. It is evident that he was prepared to act in a particular manner in order to force others to give in to his demands. He has as well an unshakeable conviction about the correctness of his own views and a disdain, verging on contempt, for those who do not agree with him. A prime example of the latter is his rejection of the view of Dr Laister, his general practitioner, that he was able to resume work on a restricted basis in August 2007. In rejecting that view, (which conflicted with that of Dr Curson) Dr Trudu said of Dr Laister that she was not even aware what an adjustment disorder was but he did so with unusual vehemence. It seems highly unlikely that a general practitioner would not be aware of the condition of adjustment disorder but that is not to the point; Dr Trudu focussed upon that as a basis for rejecting an opinion that did not support his position.
In a similar view, Dr Trudu submitted, in relation to one of the CSIRO’s witnesses that,
…he was initially hired to be the Divisional Research manager without a Ph D and with almost non-existent research skills as he probably has no publication record at all.[28]
[28] Exhibit 35, page 3.8.
Dr De Leacy expressed the matter rather well in his 12 February 2008 report when he said:
[Dr Trudu] has personality characteristics that show he has led an isolated life and probably has had difficulty relating to people. The features he now shows include marked obsessionality, rigidity and suspiciousness. These personality characteristics have probably predisposed him to developing his condition but do not represent a pre-existing condition.
I propose to deal with Dr Trudu’s final submissions[29] and, in so doing, demonstrate why I regard CSIRO’s actions as reasonable, and undertaken reasonably.
[29] Exhibit 37.
In relation to the first claim Dr Trudu submits,
The cause of the illness was the failure by CSIRO to follow their own procedures, namely giving ERA’s to retain staff, which is forbidden by CSIRO policy.
CSIRO completely failed in the promotion process by breaking their own policies, guidelines, Code of Conduct etc. before they made the decision against my promotion. Had they followed the procedure honestly, no injury would have occurred.
It is implicit in that extract that Dr Trudu’s case, in substance, is that his condition was caused by the failure to reward him with an ERA and a promotion. As Mr Clark, counsel for Comcare, pointed out in Comcare’s written submissions, consideration of the element of failure to obtain a benefit or promotion does not invoke any objective judgment about the process which led to the failure to obtain that benefit or that promotion; it is enough that the disease, injury or aggravation was the result of that failure.
I should add, perhaps unnecessarily, that I do not consider that the factual substance of Dr Trudu’s complaint is made good. Were it necessary for me to do so, I would have been satisfied that CSIRO’s actions that resulted in Dr Trudu’s failure to obtain an ERA and a promotion were entirely reasonable. The evidence, particularly of Mr Fietz, is that the rewarding of three staff with ERA’s had the effect of encouraging them to remain with CSIRO but that that was not the reason for granting the ERA. Moreover the process that resulted in Dr Trudu not obtaining the promotion that he considered that he deserved was objectively reasonable. Put bluntly, Dr Trudu‘s opinion of his own worth was not shared by his colleagues.
Similarly, I regard Dr Holmes’ actions in relation to Dr Trudu’s APA as perfectly reasonable. It may be that no CSIRO policy expressly prohibited benchmarking but it is implicit in the process of setting objective and subsequently reviewing performance against those objectives that it is only as the time of review that a determination can sensibly be made about the level of performance. As it seems to me Dr Trudu simply wanted, contrary to logic and the considered opinion of others, to use the benchmarking of his APA as a vehicle to demonstrate his worth and the desirability of his promotion.
Dr Trudu’s case on the second claim is that CSIRO “forced” a disabled employee back to work when it was not entitled to do so and that it “intentionally inflated any possible infringement [he] might have committed” for the purpose of dismissing him. I reject both arguments.
The matters of discipline occurred first in time. The first meeting, on 28 February 2007, was the administration of many months of discord by Dr Trudu arising from his dissatisfaction that others, that he regarded as less able than him, had been rewarded with ERA’s but that he had not, and with his failure to obtain a promotion. His conduct was wilful and disruptive – refusing to accept Mr Fietz’s decision and refusing to accept Dr Holmes as his supervisor are prime examples – and properly made the subject of disciplinary proceedings.
I am satisfied that the direction to Dr Trudu to return to work on 20 August 2007 was reasonable and was undertaken in a reasonable manner. CSIRO had the opinions of two consultant psychiatrists that Dr Trudu was capable of performing his duties. Dr Laister, his general practitioner, was of the opinion that he was fit for suitable duties. There was no opinion to the contrary. Dr Trudu may have been, in his words, “a psychologically disabled employee” but was, on all the medical evidence, perfectly able to return to work. I reject his assertion that he “was unable to distinguish between right and wrong in the workplace.” It is unsupported by any evidence and appears contrary to all the psychiatric evidence.
The event that immediately preceded the lodging of Dr Trudu’s second claim was the giving of notice requiring him to attend a meeting with Dr Follink on 3 October 2007. Notice was given orally by Mr Campbell informing him that Dr Follink wished to meet to discuss the outcome of Mr Campbell’s investigations into Dr Trudu’s ICAM resignation email and by a subsequent email from Dr Follink. Contrary to the detail recorded in Dr Trudu’s second claim he was given two days’ notice (not five hours) and was not asked to deal “with unspecified allegations about the content of one of [Dr Trudu’s] emails.” As the email from Dr Follink made clear the purpose of the meeting was to provide information to Dr Trudu; he was to be provided with adequate opportunity to respond subsequent to the meeting.
There is no conduct on the part of CSIRO that Dr Trudu identifies that I regard as other than reasonable, nor does the evidence show any other conduct of CSIRO not identified by Dr Trudu that could be regarded as unreasonable.
Dr Trudu’s second claim was rightly rejected as the matters that caused the condition were the result of reasonable administrative action taken in a reasonable manner.
The third claim appears to identify the same precipitating event i.e. notification of the meeting with Dr Follink on 3 October 2007, as the second claim. Dr Trudu put his case at hearing somewhat differently.[30] Now the case is put on the basis that CSIRO “forced” him back to work, against the advice of Dr Curson, so that more misconduct investigations could be undertaken for the purpose of terminating his employment. I reject that case.
[30] See exhibit 37 at page 3.
Dr Trudu was directed to return to work on 7 November 2007 by a letter dated 2 November 2007. Mr Fietz sent that letter based upon the view expressed by Dr Apel on 23 October 2007. Dr Curson had provided a medical certificate suggesting that Dr Trudu was unfit for duty up to 20 November 2007 but it was qualified to the effect that he needed more time to complete a submission to Comcare.
I consider it to have been reasonable for Mr Fietz to have acted on the view of Dr Apel and the earlier views of Dr Apel and Dr McLachlan. Dr Trudu did not suggest that he felt unable to cope adequately with the work he was asked to perform on his return and there is no evidence of which I am aware that returning to work as directed had a deleterious effect upon him. Ms Vecchio-Sadus said, and I accept, that Dr Trudu settled back at work and continued to work at his assigned tasks.
Moreover I refuse to draw the inference that the purpose of requiring Dr Trudu to return to work was as he asserts. The letter of 2 November 2007 lists tasks that Dr Trudu was required to complete and stressed the need to accommodate a successful return to work plan.
I am satisfied that the action of CSIRO that preceded the third claim, including those of which Dr Trudu complains, were reasonable and were undertaken reasonably.
The fourth claim is now advanced by Dr Trudu on a similar basis i.e. that the “real intention” of CSIRO management was to harass him with more misconduct investigations. That claim, when lodged on 28 March 2008, identifies four emails of late January/early February 2008 as the starting point of Dr Trudu’s injury. Not all of those emails are in evidence however it is evidence that Dr Trudu complains of two matters – Mr Fietz’s email of 1 February 2008 refusing, on the basis of operational requirements, Dr Trudu’s request for leave from 11 February 2008 to 26 March[31] 2008 and emails of 5 February 2008 concerning the type of leave required for Dr Trudu to attend an examination at the behest of Comcare.
[31] Exhibit 5 at page 541.
Dr Trudu says of the refusal of his leave that it was part of CSIRO’s “harassment and bullying policy.” I reject that claim. In circumstances where Dr Trudu had work to complete, including a consultancy for a third party, and there was an outstanding investigation of possible misconduct to be undertaken, I am satisfied that it was quite reasonable for CSIRO to refuse to grant the leave requested. The letter made it clear that the matter would be reconsidered if Dr Trudu had compelling reasons to take the leave at that time.
The other email, of 5 February 2008, wrongly advised Dr Trudu that he needed to access sick leave to attend a Comcare medical examination. The error was conceded within a short period of time. If it had an effect on Dr Trudu, and there is no evidence (or inference open upon the evidence) that it did, its effect was de minimus. It was one minor action amongst many that I regard as reasonable actions taken reasonably.
It follows that I would affirm the decision to reject the fourth claim.
I want, finally, to remark upon the evidence provided by Dr Curson. It underlines starkly the general undesirability of a treating psychiatrist giving evidence beyond a factual recitation of matters of treatment. It is evidence from the statements (in particular) provided by Dr Curson that she has gone well beyond providing an objective opinion about Dr Trudu’s condition. The most egregious example is in a statement, provided after she had given evidence[32], in which, having referred to medical certificates of 13 November 2008 “relating to two incidents” she continues,
I believe these incidents were evidence of unfortunate and unwanted management action that caused deterioration in Dr Trudu’s condition and should be considered in the case for adequate compensation.
[32] Exhibit 32.
Dr Curson’s evidence makes it clear that she has adopted the role of advocate for Dr Trudu. I give no weight to her views on the cause of Dr Trudu’s condition or her observations about the propriety of CSIRO’s actions.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
........................................................................
Associate
Dated 11 May 2012
Date(s) of hearing 5, 6, 7, 8, 9, 12 and 30 March 2012 Applicant In person Counsel for the Respondent Mr CJ Clark Solicitors for the Respondent Spark Helmore
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