Allan and Australian Postal Corporation

[2009] AATA 165

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200500829                  )  No V 200501150

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOHN ALLAN

Applicant

And

AUSTRALIAN POSTAL

CORPORATION

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date13 March 2009

PlaceMelbourne

Decision

The Tribunal:

1.      affirms the Respondent’s liability under s 14 of the Safety and Rehabilitation Compensation Act 1988 (the Act) to pay Mr Allan compensation for the right rotator cuff injury;

2.      varies the decisions under review to the extent that the Respondent is liable under s 14 and s 16 of the Act to pay Mr Allan compensation for:

(a)     left wrist tenosynovitis from 15 April 2005 until 13 February 2006; and

(b)     adjustment disorder with depressed mood and anxiety from 15 April 2005 until 30 January 2006;

3.      the decision under review is otherwise affirmed; and

4.      the matter is remitted to the Respondent to determine the compensation payable.

The Respondent shall pay the Applicant’s costs in this matter in an amount agreed by the parties or, in the event that the parties cannot agree, as taxed by the Tribunal.

(sgd) E A Shanahan

Member

COMPENSATION – new physical injury on return to work program – mental injury – personality disorder, adjustment disorder – dismissal for breach of code of ethics – bullying and harassment claimed – mental injury if present resulted from reasonable disciplinary action. Decision varied.

Safety and Rehabilitation Compensation Act 1988  ss 4, 14, 16, 19

Transport Industries Insurance Company Limited v Longmure (1997) 1 VR 125

Re McFarlane v Telstra Corporation Limited [2007] AATA 1663

Weigand v Comcare [2002] FCA 1464

Comcare v Chenhall (1992) 37 FCR 75

Hart v Comcare [2005] FCAFC 16

REASONS FOR DECISION

13 March 2009 Miss E A Shanahan, Member       

1.      Mr J Allan lodged a claim for compensation for an injury to wrist to fingers on left hand on 2 May 2005.  The Australian Postal Corporation (the Respondent) denied liability for the injury.  This decision was affirmed on internal review on 26 October 2005.  Mr Allan lodged a further claim for psychological stress at failed return to work program causing further injury on 16 May 2005.  The Respondent again denied liability for the injury.  The decision was internally reviewed and affirmed on 20 July 2005.  Both injuries occurred while Mr Allan was on a return to work program (RTWP) for a right shoulder injury, for which the Respondent had accepted liability. 

2.      Mr Allan was employed by the Respondent from 28 October 1993 until 27 November 2006, on which date he was dismissed from employment.  Mr Allan applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Respondent’s decisions; with respect to the wrist injury on 20 December 2005 (V 200501150), and for the psychological stress on 15 September 2005 (V 200500829). 

3.      Mr Allan had applied to the Australia Post Board of Reference for review of the decision to dismiss him.  This application was heard on 8 January 2007 and dismissed.  Mr Allan then lodged an application for unfair dismissal with the Australian Industrial Relations Commission (AIRC).  This application was heard and dismissed on 7 August 2007.  The hearing before the Tribunal was originally listed to commence on 2 July 2007 but was adjourned pending the AIRC hearing.  The Tribunal heard the matter over a period of ten and a half months involving 10 days of hearing with numerous unavoidable adjournments and intervening directions hearings. 

4. Mr Allan was self-represented. Mr A Moulds of counsel, instructed by the Australian Government Solicitor appeared for the Respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).  The parties tendered a vast volume of documents:

For the Applicant:

·documents exchanged by Mr J Allan pursuant to Tribunal Direction – Exhibit A1

·email from Maria Tonsic dated 11 September 2006 – Exhibit A2

·hand written stock take note of Acer monitor – Exhibit A3

·email between G. Rooney and R Burrows dated 27-28 April 2006 – Exhibit A4

·colour photographs – produced at the AIRC hearing – Exhibit A5

For the Respondent:

·T-Documents – Exhibit R1

·Allianz File – Exhibit R2

·Rehabilitation Plan 4 April 2005 – 4 May 2005 – Exhibit R3

·bundle of documents – 2006 Rehabilitation and Return to Work Plan and Certifications – Exhibit R4

·report of Dr Mendelson dated 30 January 2006 – Exhibit R5

·report of Dr Mendelson dated 22 March 2007 – Exhibit R 6

·report of Dr Mendelson dated 17 March 2008 – Exhibit R7

·report of Dr Smithwick dated 23 January 2007 – Exhibit R8

·report of Dr Kornan dated 4 May 1990 – Exhibit R9

·report of Dr Stevenson dated 20 December 1989 – Exhibit R10

·report of Dr Lee dated 29 October 1989 – Exhibit R11

·report of Dr Kahans dated 26 May 1986 and 4 April 1987 – Exhibit R12

·report of Dr Ross Robinson dated 27 May 1986 – Exhibit R13

·report of Dr Freed dated 27 June 1986 – Exhibit R14

·report of Dr Wong dated 27 March 2007 – Exhibit R15

·part of AIRC Transcript (Mr Allan’s evidence) – Exhibit R16

·clinical notes of Dr Fagan – extracts – Exhibit R17

·letter from G Rooney to J Allan dated 4 May 2006 – Exhibit R18

·Australia Post Code of Ethics – Exhibit R19

·Employee Counselling and Discipline Policy Procedures – Exhibit R20

·statement of Peter Anthony Olthof dated 15 June 2007 – Exhibit R21

·small hacksaw blade and razor blade – Exhibit R22

·coloured photograph of computer stand – Exhibit R23

·bundle of documents delivered to Ms Franks – Exhibit R24

·emails relating to Mr Allan and Ms Long – Exhibit R25

·Dean Marshall – AIRC – statement – Exhibit – R26

The Respondent neglected to tender the report of Mr Jonathon Rush and the Tribunal has identified this as R27. 

5.      Many of the documents were not strictly relevant to matters before the Tribunal but went to Mr Allan’s credibility, past compensation claims and his psychological status.  The Tribunal has examined all of the material. 

6.      Mr Allan, Associate Professor G Mendelson, Ms L Davis, Mr D Franken, Mr F Phillipou, Ms D Franks, Mr A Hewitt, Ms G Rooney, Mr P Hutchinson, Mr P Olthof, Ms T Grinberg, Mr C Onezime, Ms M Long and Mr S Bignoux gave evidence.  Mr Allan’s evidence was given over five days.

ISSUES

1.Was there an injury to Mr Allan’s left wrist; and if so, what was the diagnosis and was it work-related?

2.Did Mr Allan suffer a mental injury or disease; and if so, what was the diagnosis and was it work-related?  If such injury was work-related, did it result from reasonable disciplinary action taken against Mr Allan by his employer Australia Post?

BACKGROUND TO THE APPLICATION

7.      Mr Allan was born on 4 August 1960 and is now 48 years old.  He left school at the age of 15.  He ran away from home to avoid apprehension by the police, having been involved in a burglary.  He obtained work in South Australia for a period of 10 months before he was apprehended and returned to Victoria.  In 1977 he commenced working for Metrail (now Vicrail).  He eventually became an assistant clerk at the Montmorency Railway Station.  In this role he was harassed by a group of youths over a period of four years.  Mr Allan suffered a stress reaction to this harassment and underwent psychiatric treatment commencing in 1986.  A diagnosis of an anxiety depressive reaction superimposed on a paranoid personality disorder was made.  His then employer accepted liability for the injury.  Mr Allan received compensation payments for approximately five years. 

8.      Mr Allan joined Australia Post in 1993, serving in various roles.  In 1999 and 2000, while working as a driver collecting mail from Post Offices, he was the subject of two complaints from members of the public following which he was re-delpoyed to the State Mail Centre (SMC). 

9.      On 5 November 2003 Mr Allan fell at work injuring his right shoulder predominantly.  There is no dispute that he sustained a right rotator cuff injury which was proven on Magnetic Resonance Imaging (MRI); and Australia Post accepted liability for the injury.  At the time of the injury he also reported injury to his right wrist, right elbow, left wrist, left shoulder, left elbow, left knee, neck and back.  He returned to light duties on a Return to Work Program (RTWP) designed by Australia Post and the facility nominated doctor (FND), Dr Y Boon.  On 21 February 2004 (T5 p14) he submitted a claim for left elbow pain which was diagnosed as lateral epicondylitis.  This was attributed to excessive use of his left arm in the sorting of letters.  Australia Post accepted liability, limited to medical costs, for left tennis elbow (T34).

10.     Dr Poppenbeek viewed Mr Allan’s then workplace (the State Mail Centre at Port Melbourne) and recommended suitable areas of work as being sorting, coding, taxing, sorting some parcels and labelling.  Australia Post constructed detailed work plans based on those recommendations (T22).  Dr Gross carried out a further workplace assessment (T13) in June 2004.  However, Australia Post found few appropriate jobs for Mr Allan and suitable jobs were described as either unavailable or infrequent.  Mr Allan normally worked a night shift commencing at 6.00pm.  The RTWP plans were frequently modified according to Mr Allan’s symptoms. 

11.     In 2005 Mr Allan claimed his left wrist was painful, swollen and bruised.  A general practitioner diagnosed left wrist tenosynovitis.  Later specialist opinion questioned this diagnosis, as the only objective evidence obtained by MRI suggested an old, minor injury or degenerative changes.  Mr Allan believed he could have sustained this injury during his initial fall in 2003. 

12.     Mr Allan refused to sign most RTWPs after 4 April 2005 but occasionally verbally agreed to follow them.  Mr Allan had numerous meetings with rehabilitation providers, supervisors and team leaders, some of which he tape recorded, causing conflict with Australia Post managers and supervisors.  Mr Allan endeavoured to modify his worksite on one occasion by constructing a support for his right forearm, but the use of this support was disapproved of; although the Tribunal can see a benefit from this modification. 

13.     The State Mail Centre relocated to the Melbourne Gateway Facility (MGF) at Tullamarine on 15 January 2006.  At the new site Mr Allan’s duties were predominately taxing and re-wrapping.  His RTWP allowed him to work at his own pace, take five minute breaks each hour to exercise, and it was recommended that his duties be rotated in one to two hour blocks.  The RTWP placed restrictions on lifting and repetitive tasks. 

14.     In early 2005 Mr Allan was frequently late for work, providing various excuses relating to his shoulder pain, heavy traffic and his mother’s health.  He was now driving daily from Montmorency to Tullamarine and commencing work at 6.00pm.

15.     He was rostered for two to six hour shifts but on numerous occasions left work before completing his shift, either because his shoulder/elbow/wrist was painful or there was no work for him to do.  In 2005 Australia Post could not regularly provide sufficient duties or rotate his duties; that is, there was not enough appropriate work to keep him fully occupied.  On occasions, Mr Allan failed to inform his supervisors of his early departure as he was required to do.  In mid-2005 Mr Allan took five months accrued recreational and sick leave, returning to work on 17 October 2005 to the same limited duties.  Following annual leave in 2006, Australia Post made an effort to expand Mr Allan’s duties from September of that year to include recording the weight of Express Post parcels at a weighing station.  This attempt failed, despite Mr Allan’s recommendations of modification to the provided workstation.  The failure related to Australia Post’s refusal to grant access to the work floor to the union representative assisting Mr Allan.

16.     In approximately August 2006 Mr Allan’s supervisor found a hacksaw blade and a small knife blade at Mr Allan’s worksite.  Mr Allan denied these items were his property.  He did carry a small hacksaw blade in his shirt pocket that he uses to clean his pipe.  The Tribunal noted that throughout the hearing this blade was present in Mr Allan’s pocket and during adjournments observed him using the blade to clean his pipe. 

17.     On 20 October 2006 Mr Allan’s supervisor found a computer monitor stand at Mr Allan’s desk.  It was removed to the supervisor’s (Mr Bignoux) office as it was considered to be Australia Post property.  That evening Mr Allan retrieved the stand from Mr Bignoux’s office.  During an earlier warning counselling interview, Mr Allan had been informed that his entry to this office was prohibited except with permission of the supervisor and then only in relation to work issues.  Mr Allan’s activities on the night of 20 October 2006 were video recorded and the videotape was played for the Tribunal’s benefit. 

18.     The videotape showed Mr Allan performing his work, collecting mail from a Unit Load Device (ULD) and sorting and depositing it in other receptacles.  He moved slowly between these sites and his workstation.  Following attendance at his workstation, he walked to the supervisor’s office and picked up the computer monitor stand and a pink plastic hoe which had been placed on top of a filing cabinet.  He returned to his desk and proceeded to work on the stand, cutting it down in size and placing the cut-offs in rubbish bins.

19.     Mr Allan claimed that the black plastic monitor stand was his property and that he had found it in a refuse skip at a Port Melbourne business involved in removal and recycling of computer parts.  It was his plan to modify the stand and attach it to the arm of his desk chair or any other chair he might use, to provide an arm support and take the weight of his upper limb from his shoulder.  He described this as converting his chair to an old-type school chair.  He believed the video recording of his actions was a set-up.  However, there is evidence that the surveillance was conducted for other purposes, namely to investigate reports that valuable items had been stolen in the rewrap area, where damaged parcels containing such items were repaired and rewrapped prior to delivery. 

20.     The MGF checked on the number of computers, monitors and stands in its possession.  Those items not in use were kept in a storage shed.  The computers and monitors were counted and it was found that two black monitor stands were missing.  Australia Post concluded that Mr Allan had taken these stands, although only one stand was found in his possession.  Following this investigation, Ms Gail Rooney of the Human Resources department recommended Mr Allan’s suspension and that a disciplinary enquiry take place.  Mr Allan was informed of these decisions when he returned to work on 24 October 2006.  He was accompanied to his locker in order to remove his property prior to his suspension taking effect.  The locker was found to contain a sheaf of bulk lodgement invoices to the value of $1,500. 

21.     The formal disciplinary enquiry was conducted by Mr Peter Olthof.  Mr Allan was said to have breached Australia Post’s Code of Conduct as follows:

1.On 20 October 2006 (you) entered the Supervisor’s office without authorisation and removed a piece of equipment from that office without authorisation.

2.On 20 October 2006 you damaged a piece of Australia Post equipment and sought to dispose of the pieces.

3.On 20 October 2006 you bought [sic] into the workplace a tool that is a potential weapon and used it to damage Australia Post equipment.

4.On 24 October 2006 you accessed your locker in the presence of a corporate Security Group representative and a Supervisor during the course of which it was identified that your locker contained corporate documents belonging to Australia Post.

5.You have impacted on revenue collection and correct mail processing procedures by withholding corporate Australia Post documents.

22.     The disciplinary enquiry interview took place over two days, 27 October 2006 and 1 November 2006.  Mr Allan and several supervisors attended.  A union representative was present.  Mr Olthof found all charges proven.  He decided Mr Allan’s conduct represented serious wilful misconduct and recommended Mr Allan be dismissed.  A meeting occurred on 22 November 2006 to give consideration to a lesser penalty.  This did not change the decision.  Mr Olthof’s recommendations were accepted and Mr Grogan terminated Mr Allan’s employment as of the close of business on 27 November 2006.

23.     The Board of Reference affirmed Mr Olthof’s findings and Mr Grogan’s decision of 27 November 2006, with the exception of breach 5.

EVIDENCE BEFORE THE TRIBUNAL

Mr J Allan

24.     As Mr Allan was self-represented the Tribunal assisted him in the presentation of his case by directing him to answer relevant questions.  Throughout the hearing he expressed his belief that Australia Post was withholding documentation referable to his claim; that he had been subject to overt surveillance, harassment and bullying by his supervisors; that his RTWPs had not been adhered to by Australia Post and that frequently no suitable work was available to him.  On numerous occasions he had complained to his Rehabilitation Officer, Mr Peter Hutchinson, that designated tasks were not rotated or were not available and that there was a need to adjust the program.  At times, while he attended the work place for the full work day, he performed no work at all.  This led to anger and frustration and eventually to his stress problem.

25.     Mr Allan denied that the computer monitor stand or stands he allegedly misappropriated were Australia Post property.  He said he had found the stands in the refuse skip in the grounds of a computer parts company and had taken this home to devise an armrest.  During the hearing he was unable to provide the name of the company in Port Melbourne that dealt in computer parts.  However, he later provided some details before the decision was finalised. 

26.     Mr Allan explained that he had, of his own volition, commenced recording details of miss-streamed mail at MGF in order to inform the delivery centre that had accepted the mail of their error.  This involved copying details from the account invoices.  He collected the invoices, copied them and then submitted the invoices weekly.  He had put the originals in his locker for safe-keeping as items kept disappearing from his desk.  This desk could be used during other shifts by other Australia Post employees.  He denied he had appropriated these invoices as at all times they had been kept on Australia Post sites.

27.     As a result of his frustration and anger, arising from the perceived failure by Australia Post to adhere to his RTWP and provide suitable alternative and rotated duties, Mr Allan filed his stress claim on 16 May 2005 (T67, p139).  He was referred to a Dr Lipp, an FND who diagnosed a stress problem and suggested re-deployment or transfer to somewhere to get me out of where I was for the time being (Transcript p20).  Mr Allan was perturbed by the exclusion of Dr Lipp’s certificate from his Australia Post claim file.  It had been included in the file of his former solicitors, Maurice Blackburn and Associates.  On 14 April 2005 Mr Allan had seen Dr Fagan, his local FND, who diagnosed stress and anxiety and recommended a referral to Mr Clyde Smithwick, a psychologist.  Mr Allan was grateful for this referral as at the time he felt his anger was such that he was in danger of unleashing it and harming one of his colleagues.

28.     Mr Allan did not include his rehabilitation providers, Mr Peter Hutchinson and later Ms Leanne Davis, in his general claim of harassment; although he considered Ms Davis’ conversation with Dr Fagan regarding his wages as being outside her duties and authority.  As a result, he withdrew the authority he had previously given for the providers to contact his treating doctors. 

29.     Mr Moulds conducted his cross-examination of Mr Allan over a period of two days. 

30.     The cross-examination went through all aspects of Mr Allan’s work for Victorian Railways and Australia Post in great detail.

31.     Mr Allan confirmed that in the months prior to the termination of his employment he had worked in the taxing and re-wrap section of the MGF at Tullamarine.  Just prior to his termination his duties had been concerned with re‑wrapping alone as the taxing section had been transferred to the Dandenong Mail Centre.

32.     Mr Allan had commenced working with the predecessor of VicRail in 1977.  Over a period of several years in the early 1980s, while working at the Montmorency railway station, he had been harassed by a gang of youths.  This led to an acute stress reaction and subsequently to a claim for a psychiatric illness; for which he received treatment by his general practitioner and several psychiatrists.  He was treated for a period of three to four years by a psychiatrist, Dr Kahans.  He was off work for a period of approximately four years.  Eventually it was recommended that he return to work but not in a railway station environment.  During the four years he was off work, Mr Allan had become disillusioned with the lack of assistance and retraining provided by WorkCare.  Eventually, he was retrained as a backhoe operator.  Victorian Railways did not have any work for a backhoe operator and Mr Allan accepted an alternative job as a ganger for a short period of time and then worked for 12 months with the railways’ building management department, following which he took a redundancy package.  He had been prescribed antidepressants during this illness and responded beneficially.  He then worked for a period of 10 or 12 months at a tyre re-cycling facility, driving a large excavator.  Before leaving this position he had applied for a job at Australia Post, where he commenced work as a driver and remained as a driver throughout 1999 and 2000. 

33.     During the period that he was a driver, two complaints were lodged by members of the public about Mr Allan’s behaviour.  The first complaint was lodged on 1 September 1999 when another road user accused Mr Allan of driving like a maniac.  The second complaint arose from an argument on 31 December 1999 between Mr Allan and the owner of a local Post Office, regarding Occupational, Health and Safety issues.  Mr Allan denied that he had been rude to this lady but had merely been informing her of her duty to abide by Australia Post’s Occupational, Health and Safety rules.  Following a Board of Reference enquiry into Mr Allan’s actions he was transferred to the State Mail Centre at Port Melbourne, it having been determined that he should not have direct contact with the public.  

34.     As mentioned in paragraph nine above, on 5 November 2003, while at the State Mail Centre, Mr Allan suffered a fall injuring his right shoulder predominantly. Following this right shoulder injury Mr Allan was referred to a FND once the diagnosis of complex rotator cuff syndrome was confirmed by an MRI.

35.     Over the years numerous RTWPs were devised by the FNDs and the Australia Post Rehabilitation Officer.  Initially, Mr Allan had returned to work in the taxing and re-wrap section at the State Mail Centre and he found this position most suitable.  He agreed with Mr Moulds that he resented being shifted to other duties.  At the same time that he was seeing first Dr Boon and then Dr Fagan (FNDs), he continued to see his own general practitioner, Dr Malek.  In addition to the FNDs providing RTWPs, Australia Post also sought advice from Dr Elder, Dr Poppinbeek and Dr Kevin Fraser.  Modifications were made to the RTWPs and Doctors Elder and Poppinbeek performed site visits.  A Dr Andrews also made recommendations in regard to the RTWP; but as far as Mr Allan was aware none of her recommendations were implemented.  All the RTWPs provided restrictions.  These restrictions were modified when Mr Allan developed a left lateral epicondylitis in January 2004, right lateral epicondylitis in February 2004 and left wrist pain and swelling diagnosed as tendinitis in April 2005. 

36.     Mr Allan contended that all of the RTWPs required that he be rotated between various approved jobs or tasks on a one to two hourly basis but this had not been done.  The failure to provide the rotation was due to Australia Post not having sufficient appropriate work available.  Mr Allan claimed that he spent most of time sitting doing nothing.  When he did ask for more work he was usually re-assigned to the earlier tasks he had performed.  Mr Moulds took Mr Allan through all of the RTWPs and the restrictions placed on weight-bearing, movement of the shoulder, elbows and so on.  Mr Moulds asserted that the two rehabilitation providers, Mr Peter Hutchinson and Ms Leanne Davis, had been fully aware of the programs and had made certain these restrictions were complied with.  Mr Moulds challenged Mr Allan’s claim that the requirements included job rotations.  Eventually, Mr Allan’s claim was confirmed, for example, in Dr Elders’ report of 13 January 2005 (T49, p103).  The RTWPs had recommended that Mr Allan work at his own pace.  He had for a time performed frame-sorting of the Express Post letters but was so slow that he was disrupting the work of his colleagues. 

37.     Mr Allan said that he had tried to devise aids to assist him in performing his work and Australia Post had provided him with a small rake which he described as a child’s plastic rake, normally part of beach equipment.  This was supposed to assist him in removing small parcels or large letters from ULDs.  He claimed his efforts to construct supports for his right arm were encouraged by his rehabilitation provider, Leanne Davis, but were not approved by Australia Post.

38.     Several doctors who had examined Mr Allan had reported that his hands were dirty, suggesting that he was in fact performing some sort of manual work.  Mr Moulds questioned Mr Allan extensively on this point, asking whether he was in fact working on motor bikes or cars at home or performing other tasks around the house.  Mr Allan denied that he had been doing any mechanical repairs, although he admitted to changing the oil in his car once a year and had recently changed the spark plugs.  The other cars and the three motorcycles housed at his home were all in a state of disrepair and he had not worked on them for years.  Mr Moulds provided photographs of Mr Allan’s house, garage and garden.  The garage was packed with boxes and miscellaneous items.  Mr Allan described himself as a hoarder and collector.  At the time the photographs were taken, he was in the process of cleaning up the garage and the yard under instruction from the local council.  It was his habit to collect what he regarded as valuable items from roadside pick ups and approximately twice a year he attended swap markets.  He described this activity as an example of the adage that one man’s trash is another man’s treasure (Transcript p168). 

39.     Mr Allan did collect more valuable items like cigarette lighters and old pipes. These he kept in the house.  The photographs of Mr Allan’s home had been taken by an investigator and Mr Allan expressed his relief on being told of this, as he had suspected he was being watched and the knowledge that there had been an official surveillance was re-assuring.  He had thought he was paranoid and was imagining being watched.  As he had not been doing any work of a manual nature he had been unable to explain why his hands appeared dirty, until he realised it was staining from his pipe.  Since determining the cause of the blackening of his hands, he has been soaking them in peroxide in an effort to get rid of the stain. 

40.     During 2005 and 2006 Mr Allan had regular meetings with the rehabilitation providers to discuss RTWPs, with other staff to determine suitable tasks within the MGF and informal face-to-face counselling meetings.  Mr Moulds alleged that Mr Allan had recorded these meetings, beginning in the latter part of 2004.  Mr Allan said he could not recall which meetings he had recorded but that he had a total of ten tapes relating to various meetings.  He had recorded the meetings as an aide memoire.  He insisted that at all times he had told people that he was recording and had in fact provided a memo to the supervisors, setting out a list of requirements regarding his attendance at meetings (R24).  This list included the statement I may or may not tape record the meeting.  On 28 March 2006 he had sent a further memo to Ms Franks saying: FYI I will be tape recording tonight’s meeting. John (R24).  The meeting of 28 March 2006 did take place and Mr Allan did place a tape recorder on the table.  Ms Franks objected strongly to its use.  According to Mr Allan, Ms Franks made some derogatory remarks which he found offensive.  She refused to allow him to tape-record the meeting and she and Mr Mathew Lee, who was also an attendee, left without the agenda being addressed.  

41.     In answer to Mr Moulds’ question, Mr Allan reiterated that he could not recall whether he had recorded a meeting that took place on 31 May 2005 but he may well have done so.  If he had, the tape recorder would have been on the desk but may not have been turned on at all times.  He agreed that he had later told Ms Gail Cholosznecki, a union representative, that he had recorded the meeting of 31 May 2005.  Mr Allan denied that he had been counselled and warned not to tape‑record such meetings.  He had asked for clarification of the position and was subsequently, at a much later time, informed that taping meetings was unacceptable (Transcript p233).  He said he had searched through Australia Post’s policies but was unable to find any entry regarding tape recording of meetings.  In Mr Allan’s opinion it would have been much easier for the supervisors to take him aside and inform him that they did not want him to tape-record the meetings.  He believed that the actions they had taken were aimed at providing grounds to discipline him for his tape recording activities (Transcript p 234).  He said:

…they wanted to get me on a warning counselling … For breach … of the Code of Ethics.

42.     Mr Moulds dealt with the informal and formal counselling meetings that had taken place with regard to Mr Allan’s work performance.  The first of these had been on 13 April 2005 and addressed his late attendances (12 in 5 weeks) and Mr Allan absenting himself from the workplace during his shift.  These were discussed in detail and Mr Allan was given advice.  A similar informal discussion took place on 24 October 2005 (T91, p 320), which again concerned late attendance and the:

·Failure to seek permission for absences whilst on duty. 

This was expanded to include additional topics:

·Failure to treat a fellow employee with courtesy and respect;

·Failure to exercise due care in your work;

·Inability to perform work to an agreed standard in conjunction with your rehabilitation program;

·Cancellation of a Medical Appointment in August 2005;

·The inability to attend work on time due to Medical Appointments occurring late in the afternoon; and

·Repeat late attendance due to “rest breaks”.

43.     Mr Allan agreed with Mr Moulds on the content of these counselling interviews and explained that his late arrivals were due to a combination of factors, namely his mother’s ill-health, traffic hold-ups on the Tullamarine Freeway and the need to attend medical appointments and physiotherapy appointments late afternoon.  It had not been possible for him to attend earlier appointments for a variety of reasons.  All of these items were dealt with in detail.  Mr Allan explained that when he was late he would fill in what was called a make-up time form and that all of these records should have been kept.

44.     Thereafter, all interviews were in the form of formal or warning counsellings.  Mr Allan had complained to various supervisors about events but felt he had never received an adequate answer or reply.  Some of the actions taken by various senior persons, such as Ms Gail Rooney, had been provocative and he agreed that his behaviour toward Leanne Davis had been inappropriate (Transcript p239).  Mr Allan had been instructed to stop emailing supervisors and more senior staff regarding his unanswered queries.

45.     Australia Post had accused Mr Allan of obtaining his RTWP from a supervisor’s office and annotating it.  Mr Allan denied that he had done this and explained that he had written the comments on his own copy of the program, had photocopied this in the supervisor’s office (where the photocopier for that floor was kept) and had placed this in his return to work folder.  He had also photocopied the clean copy contained in the folder for his own records.

46.     At the meeting held on 28 March 2006, Mr Allan had been instructed that he was only to access the supervisor’s office with the permission of the supervisor (Transcript p252).  Mr Allan said he took this to mean that he had access to the office for work-related matters but not for any other reason.  He described how his work colleagues frequently occupied the empty supervisor’s office for non-work related gatherings.

47.     At a follow-up meeting on 8 May 2006, there is an entry to the effect that Mr Allan was following all the actions outlined at the earlier counselling meeting (T113, p381).

48.     The Tribunal heard a compact disc recording made by Mr Allan of a meeting with Ms Franks among others.  The quality of the recording was extraordinarily poor. However, Mr Moulds said he was more intent on the Tribunal hearing the actual tone of the voices, rather than the content of what was said.  Mr Allan was able to identify the voices of Debra Franks and of his co-worker, Mr Long Nguyen, and his own voice.  This conversation related to him attempting to tape-record the meeting of 28 March 2006.  The Tribunal was not able to discern what was said.  The tone of the voices sounded normal, the only change being an increase in the loudness of the voices towards the end, which may have been due to them raising their voices or may have been a recording defect.  Mr Moulds played a second recording, this one on tape, involving a conversation between Mr Bignoux and Mr Allan, said to have been recorded on 6 October 2006.  The voices on this tape were even harder to hear.  Mr Moulds asked Mr Allan if Mr Bignoux had known he was being recorded.  Mr Allan said he had thought he had placed the tape recorder on the table but now he was not sure.  If it had not been on the table it would have been in his pocket.  Mr Moulds advised the Tribunal that Mr Bignoux would deny that he had any knowledge that he was being recorded.

49.     Mr Moulds tendered part of the transcript of the AIRC hearing referring to the tape recording of these meetings (R16).  It had been Mr Allan’s evidence before the AIRC that I couldn’t say which meetings I did or which meetings I didn’t, however there was notification.  He also said that when he did tape-record a meeting the tape recorder was in clear view.  Before this Tribunal Mr Allan confirmed that that is what he said and that that was in fact the truth (Transcript p434).

50.     Mr Allan confirmed that he had gone on leave for a period of five weeks in 2006, returning to work on 11 September 2006.  Prior to him going on leave there had been a suggestion that he might be suited to a job involving the recording of the weights of mail as it was delivered to the MGF.  This involved him sitting close to the delivery site which was open to the air and using a lectern to support the documents he was to complete. 

51.     Mr Moulds put to Mr Allan that a team meeting had been arranged for the evening of September 11^th.  In the course of this meeting Mr Allan posed a question to a trainer and while she was in the midst of answering his question, he stood up and walked out.  This action on his part resulted in a warning counselling interview being planned for 3 October 2006.  Mr Allan agreed that this event occurred but said the trainer had no problem with his leaving the meeting.  On 13 September Mr Allan was again allegedly chastised by a supervisor for using a computer to send an email.  Mr Allan said he was using the computer to report his concerns regarding the weight recording job, as he had been advised to do by Debra Franks.  He said that he had told Ms Franks of his concerns and she had instructed him to put it in writing.  (Transcript p258).  His union representatives had advised him that the creation of such letters and emails was work-related and should be done in his work time.  Mr George Sardilius had told him to turn the computer off in what Mr Allan considered to be an unprofessional manner.  Mr Moulds put to Mr Allan that on the following day he had been observed leaving his workstation without the permission of his supervisor.  Mr Allan said he regarded this direction as ridiculous as he would have to go looking for his supervisor in order to ask if he could leave his workstation.  On the 14^th he had been unable to find a supervisor and had to exit the building rapidly because of the sudden onset of nausea.  He felt he was going to vomit.  Once he got outside his nausea settled and he then returned to his workstation.  Mr Allan indicated that while he had not told a supervisor he was leaving the building he had signalled by hand to a co-worker, Mr Tran, that he was leaving the work floor.

52.     On 20 September discussions occurred regarding Mr Allan’s placement in the weight recording position.  Whereas this task had previously been done in the seated position it was to be altered so that he could perform it while standing.  Mr Allan had identified problems with the lectern prior to his annual leave.  He had been shown a photograph of the lectern but had not seen the lectern in place at the facility.  Having discussed the position by looking at the photograph, a site visit was suggested.  As his union representative was refused access to the floor, Mr Allan refused to view the lectern.  Mr Allan demonstrated to the Tribunal how he had intended to support his right elbow during the recording of the weights in order to limit the movement of his right shoulder.  The Tribunal was shown the photograph of the lectern with a man, who was obviously left-handed, standing in the working position.  Mr Allan firmly believed he could have performed the job had he been allowed to modify the ergonomic arrangement of the lectern to suit his requirements. 

53.     Mr Moulds followed with a lengthy cross-examination about the restrictions placed on Mr Allan’s shoulder movement, as advised in various RTWPs drawn by his doctors.  None had addressed the particular problem Mr Allan had discussed.  Mr Allan said that he actually tried the weight recording job for one night using a support he constructed from five mail tubs.  This he did in a sitting position with his arm resting on the tubs and his feet elevated.  However, he experienced pain in his right shoulder. 

54.     On 20 October 2006 Mr Allan was seen to enter a supervisor’s office and remove a black plastic object identified as the bottom half of a computer screen stand.  Mr Moulds provided a surveillance videotape of this event for viewing by the Tribunal.  Mr Allan brought to the Tribunal’s attention the fact that the videotape commenced at 18 hours 8 minutes and 56 seconds on 20 October 2006.  This indicated that the first eight minutes of the video had been deleted.  He had seen the full videotape at the Board of Reference hearing in January 2007.  These first 8 minutes had shown him arriving at work, walking past the supervisor’s office and noticing the objects on top of a filing cabinet.  He believed these objects to be his property   The videotape shows Mr Allan moving between sorting racks and mail bins, which he indicated was him looking for articles requiring re-wrap attention.  Mr Allan commented that the night appeared to be particularly quiet in that there were very few staff around and very little mail sorting was taking place.  On the videotape the Tribunal saw Mr Allan enter the supervisor’s office and remove a black plastic object and a smaller pink-handled object from the top of the filing cabinet and return with them to his work station.  He then proceeded to cut the black plastic object with a hacksaw blade.  Having completed this sawing action he walked to a distant bin on his way, he said, to performing his hourly stretching exercises.  He said he abandoned his idea to do the exercises and returned to his desk.  Mr Allan readily admitted that he had brought in the hacksaw blade for the express purpose of cutting the black plastic object, which was later established to be an Acer plastic computer screen stand.  He also asserted that the stand was his property and that he had brought it into the facility for the express purpose of making an arm support to be placed on the arm of the recording job lectern.  He said he had performed most of the hacksawing at home prior to bringing the stand into MGF. 

55.     The videotape also showed him speaking to a lady who was identified as Zoe the Timekeeper.  Her task was to perform hourly checks regarding the workers’ presence, record overtime hours and maintain data required by the pay office.

56.     The Tribunal having watched the videotape, Mr Moulds continued with his cross-examination.  He contended that the object Mr Allan had hacksawed in half was a computer screen stand of the kind used by Australia Post at the facility.  Mr Allan said he had never seen one in use at the facility; that they were on a separate floor, if they existed, and the ones on the floor on which he worked were adjustable stands.  He had obtained the stand he modified from a refuse skip at a company known as Computer Technology in Port Melbourne.  He had obtained two such stands from that site, as well as other pieces of equipment over a period of time.  Australia Post housed spare computers, monitors and stands in a shed at the Tullamarine facility.  Mr Allan said he had never seen these spares, although he had accessed the shed in order to obtain plastic bags and tapes to use in his re-wrapping duties. 

57.     Mr Allan was cross-examined at length with regard to the computer company and its whereabouts.  While he had difficulty remembering the details of the name of the company (as noted above, he subsequently recalled the name of the company) he was able to provide directions to its original site in Port Melbourne and its current site in Todd Road, Port Melbourne.  Between the AIRC meeting and the hearing before this Tribunal Mr Allan said he had visited the premises of Computer Technology and ascertained that they did receive similar or the same computer monitor stands from government departments for disposal.  Mr Allan had been provided with a photograph of the stand in the course of the AIRC hearing and had also obtained one from eBay.

58.     Following the video-recorded events of 20 October 2006, it was recommended that Mr Allan be suspended.  Mr Peter Olthof was appointed to undertake the investigation of the event and interview Mr Allan in order to determine whether he had breached Australia Post’s Code of Ethics. 

59.     The first action taken in the investigation was a stocktaking of Acer computers and monitors at the MGF.  Ms Toni Grinberg had been delegated to supervise the stocktaking.  Results of this stock take were recorded in longhand (A3).  The actual count was of computers and monitors as opposed to individual stands but in the analysis of the results two computer monitor or screen stands were found to be missing.  These were identified by their barcode numbers.  Mr Olthof had stated that each item, that is, the computer, the monitor screen and the stand all carried Australia Post identification stickers on their bases.  In the case of the stand that Mr Allan had allegedly modified no sticker was present on the stand but photographs revealed a mark consistent with a sticker having been removed.  Mr Allan denied removing any sticker and said that, to his knowledge, Australia Post did not in fact label their stands, only their computers and the monitors. 

60.     There was some confusion, at least on the part of the Tribunal and Mr Allan, as to what exactly had been counted as the official report described the items as monitors/stands whereas Mr Allan maintained that the monitors and stands were separate and it was his evidence that the stands had been stored separately in a box.  This dilemma was resolved later by the evidence of Ms Grinberg, who supervised the stocktaking procedure.  Mr Allan said he had performed his own count of monitors on the ground floor of the MGF and found that there were 19 screens.  The stocktake also revealed that 10 of the stands were in the shed, 17 having been originally assigned to MGF. 

61.     Mr Allan was asked where he had obtained the Bulk Lodgement documents found in his locker on 24 October 2006.  He said he had found them in various places including mixed up in tubs of mail, in waste bins and lying around on desks.  In his enquiry Mr Olthof had determined that while Mr Allan was in possession of these documents, his actions had not been fraudulent. 

62.     During the exchange of documents that took place in December 2007, Mr Allan had provided to the Respondent some 4,000 pages of information.  These included copies of rehabilitation records relating to him and other Australia Post workers and RTWPs.  Mr Allan said he had found these in places such as recycling bins and denied that he had removed them from the rehabilitation officer’s desk or office.

63.     In April 2005 Mr Allan had noted his left hand turning black.  This had started at his knuckles and proceeded upward to his wrist.  He noted swelling of his wrist because his watch strap became progressively tighter.  He had shown his hand and wrist to Ms Mary Long and Mr Silvio Bignoux and had filled out an incident report.  While he was uncertain of dates, he thought he saw his general practitioner, Dr Boon, the following day.  Mr Bignoux had completed the incident report.  Mr Allan assumed that Mr Bignoux had noted something wrong as he had proceeded with the incident report, although neither he nor Mary Long had acknowledged there was any discolouration of his wrist.  Despite the wrist symptoms he said he continued to work for a period of two weeks before going on sick leave.  His reasons for taking sick leave were not solely related to his wrist injury.  He felt angry and was concerned that he might hit one of his co-workers. 

64.     Mr Allan agreed with Mr Moulds that he had been upset and anxious about the entire process of his dismissal including the Board of Reference and the AIRC hearings; and because he was being confronted with having to change career at the age of 47. 

65.     Mr Allan did not call any witnesses.  The Respondent called 12 Australia Post employees and Associate Professor Mendelson, a consultant psychiatrist. 

66.     The Australia Post employees who gave evidence were all of a managerial or supervisory level and included Mr Peter Olthof, Manager of Contract Management Business Review, who had conducted the enquiry into Mr Allan’s alleged breaches of Australia Post’s Code of Ethics that formed the basis for Mr Allan’s dismissal, Mr Andrew Hewitt, Mr Peter Hutchinson and Ms Leanne Davis, all members of the Human Resources Department.

Mr A Hewitt

67.     Mr Hewitt, Rehabilitation Manager of Australia Post for Victoria and Tasmania, gave evidence as to the structure of the Department, its aims and its order of process.  This Department conducted internal self-audits, submitted to further internal audits conducted by an external consultancy and a third audit imposed by Comcare.  The internal audit, which was among the documents Mr Allan provided to the Respondent, was conducted by Chris Mesurier and Associates.  It had been sent to all rehabilitation providers and rehabilitation managers in confidence.  However, the document was not so marked.  Mr Hewitt had no idea how this document might have come into Mr Allan’s possession.  Mr Allan had given evidence that he had found it on a table in the staffroom.

68.     Mr Peter Hutchinson and Ms Leanne Davis had been Mr Allan’s Rehabilitation Providers.  Mr Hutchinson was involved until Mr Allan sought transfer to another provider.  Ms Davis took over his case from Mr Hutchinson in late 2005 while the facility was still housed in Port Melbourne.

Mr P Hutchinson

69.     Mr Hutchinson indicated that in designing Mr Allan’s return to work programs in consultation with his medical practitioners and Mr Allan, he had adopted a more restrictive approach to the activities that Mr Allan had been assessed as being able to undertake. 

70.     Mr Hutchinson agreed that it was very likely that he had told Mr Allan that they have got you by the short and curlies by which he meant they’ve got you over a barrel and you’re in a difficult situation.  This was in reference to the RTWPs.  Under cross-examination he agreed with Mr Allan that Australia Post had difficulties in finding suitable rotational positions and also in finding work that met the restrictions placed by the medical advisers.  Mr Hutchinson had been in favour of Mr Allan pursuing the so called dock recording job, but to his recollection management had been hesitant in approving this position.  In relation to the audit document, Mr Hutchinson said he would have stored it on his computer.  He made all his entries in workers’ files electronically and did not write things down in long-hand and place them in folders.  If he did have any files containing documents they were placed in a filing cabinet which he locked every night. 

71.     Ms Leanne Davis took over from Mr Hutchinson in October or November 2005 at Port Melbourne but she did not recall having much, if anything, to do with Mr Allan in the last two months of 2005.  Her transfer to the new Tullamarine facility was slightly delayed and she believed her first contact with Mr Allan occurred in March or April of 2006.  She described her normal process of devising RTWPs, including consultation with doctors and the worker concerned and the practice of centralising RTWPs and rehabilitation folders in the Exhibition Street, Melbourne office.  She herself made notes long-hand, then typed them up and placed them in a manila folder kept in her filing cabinet.  The copies were transferred electronically to the city office.  It was her practice at the end of the day to place all employees’ files in the filing cabinet and lock it, although during the day they may well have been on her desk.  In relation to the audit reports, she thought that she had probably left them in her in-tray over a period of time.  After her hand-written notes had been transcribed they were shredded.  Ms Davis said she had regularly communicated with treating doctors and had spoken with Mr Allan’s FND, Dr Fagan, regarding Mr Allan’s suitability for overtime.  If the restrictions placed on Mr Allan included that he was unable to perform overtime activities he would receive extra payment, as Australia Post was obliged to offer him rostered overtime work.  Ms Davis had been aware that he would have received a top up to his pay under these circumstances. 

72.     Ms Davis was unaware that meetings had been tape recorded.  She agreed she had supported Mr Allan in his application for the dock recording job and also in his suggestions to modify his worksite in order to reduce any strain on his right shoulder.  This was particularly so in relation to the dock recording job, but once they had sorted out the ergonomics, they found the job was no longer in existence. 

73.     Under cross-examination Mr Allan asked Ms Davis if she had ever felt threatened or intimidated by him.  She said she had felt intimidated on the occasion when they discussed and looked at the dock recording job but that in case review meetings she had not felt challenged.  Mr Moulds and Mr Allan took Ms Davis through a large number of emails circulated between various employees and managers relating to RTWPs.

74.     Although Mr Allan had withdrawn his authority for direct contact to be made between the rehabilitation provider and his doctors, Ms Davis continued on the instruction of Mr Chris Dixon, her superior in the Rehabilitation Section, to contact the doctors but only by mail.  Ms Davis had difficulty recalling specific instances relating to review meetings, doctor certificates and changes in return to work programs.

Mr F Philippou

75.     Mr Phillipou was the Human Resources Manager at the State Mail Centre in Port Melbourne from August 2000 onwards.  His role was to co-ordinate the rehabilitation providers, external providers and the employment of rehabilitees.  He had known Mr Allan as an employee since he commenced working for Australia Post but had no direct contact until the meeting of 31 May 2005, called to discuss issues regarding Mr Allan’s late arrival for work, Dr Fagan’s recommendation that redeployment of Mr Allan be considered and Mr Allan’s accrued excess recreational leave.  Mr Allan had left this meeting abruptly and later stated that he had been held against his will.  Mr Phillipou denied any attempt to force Mr Allan to stay.  A review meeting, which was to be a face-to-face informal counselling, had been planned for 24 October 2005, after Mr Allan’s return from leave on 17 October 2005.  When informed that this meeting was to take place Mr Allan had reacted by yelling and screaming at Mr Burrows, the bearer of the message, telling him to stay away from me (Transcript p576).  The meeting planned for 24 October 2005 was cancelled.  An agenda for this meeting had been constructed.  It included the three earlier issues plus failure to seek permission for absences while on duty and failure to treat a fellow employee with courtesy and respect.  Mr Allan provided a letter dated 18 October 2005 listing restrictions he wished imposed on such meetings based on medical advice (R24).  A formal counselling meeting was planned for 29 November 2005 at Mr Phillipou’s direction. 

76.     Mr Phillipou informed the Tribunal that he believed that the tape recording of meetings would have been a breach of Australia Post’s privacy policies.

77.     Mr Phillipou said that from early 2005 Human Resources had received complaints from process leaders and production managers regarding Mr Allan’s unapproachability and refusal to attend meetings.  These managers had sought advice from Human Resources.  Formal counselling meetings had been arranged for 28 March 2006 and 10 April 2006. 

78.     Mr Allan cross-examined Mr Phillipou about the content of several emails Mr Phillipou had authored.  The latter had no recollection of the events or contents to which the emails related but was aware that floor supervisors had reported Mr Allan’s late arrivals to work and late returns from lunch.  He denied Mr Allan’s assertion that there was a conspiracy to get Mr Allan out of Australia Post employment (Transcript p605).  Mr Phillipou did recall describing Mr Allan’s behaviour toward Mr Burrows on 24 October 2005 as irrational and extreme.  Mr Allan had behaved as if he was suffering from a psychiatric condition.  Mr Phillipou was unaware that Mr Allan had by then been diagnosed as suffering from anxiety or a stress disorder. 

79.     Mr Phillipou explained that monitoring of the return to work programs, in terms of adherence to restrictions, was left to the supervisors’ discretion and time limitations were imposed.  He said that over supervision, extending outside the activities provided for in the program, would be inappropriate.  Fellow workers had not been instructed to monitor their colleagues but complaints had been received from co-workers regarding Mr Allan’s pace and pattern of work. 

Mr D Franken

80.     Mr Franken was the Site Production Manager at the State Mail Centre at Port Melbourne 2005 and shifted to Tullamarine in January 2006.  His duties included participation in the review of the rehabilitees’ progress.  A formal counselling interview of 29 November 2005 considered those items on the agenda of 31 May 2005 and new complaints lodged since Mr Allan’s return to work on 17 October 2005.  A review conducted on 9 February 2006 found that Mr Allan had addressed all the areas of complaint.  At the meeting of 28 March 2006 Mr Allan had produced a tape recorder, despite being told this was not permitted. 

81.     Mr Allan questioned Mr Franken with respect to the process of conducting formal counselling and whether the Code of Ethics laid down a process to be followed with suspected breaches.  Mr Franken agreed that such was the case.

Ms G Rooney

82.     Ms Rooney is the Manager of the Human Resources Advisory Unit.  She had attended the formal counselling meeting of November 2005 and the meeting conducted in April 2006 but could not recall the details of these meetings.  She had arranged counselling for other employees via the Employee Assistance Program.  Those employees counselled where predominately supervisors and managers.  Under cross‑examination she agreed that Mr Burrows had said he had kept a special file highlighting all activities/dealings relating to Mr Allan’s claim (A4).  Ms Rooney had undertaken to investigate Mr Allan’s query as to whether tape recording of meetings was illegal.  This had taken some time to conduct.  She had found that while the tape recording of meetings at which the person performing the tape recording was present was not in breach of the relevant legislation, it was not accepted under the terms of Australia Post’s privacy policy.

Ms T Grinberg

83.     Ms Grinberg is a Human Resources Manager.  She was delegated to conduct a stocktaking of Acer monitor stands at MGF.  She in turn delegated the actual count to Mr Onezime, also of the Human Resources Department.  The Information Technology Department provided a list of computers, monitors and stands supplied by Australia Post to the MGF.  This list identified the equipment by serial numbers and barcodes. According to the list there were 17 computers.  The official count was recorded in Mr Olthof’s witness statement to the AIRC (R21).  Mr Allan provided a copy of the hand-written stocktake list (A3).  In her evidence Ms Grinberg interpreted the count as identifying 17 Acer monitors, all of which should have had a stand.  Two stands were said to be missing. 

84.     Ms Grinberg also gave evidence that all the stands were stored in boxes and all monitors were in use in MGF.  The stands had never been used, having been substituted by adjustable or swivelling monitor stands.  The stands and monitors were said to bear Australia Post identifying stickers.  The stand Mr Allan allegedly removed had a mark on its base corresponding to where a sticker may have been.  Access to the shed where 10 of the original 17 stands were stored was available to anyone.

85.     Ms Grinberg said she had found a blade similar to a razor blade taped to Mr Allan’s desk.  She had been alerted to its presence by Mail Officers working on the floor. 

Mr C Onezime

86.     Mr Onezime confirmed he had conducted the stocktaking procedure and had done so by looking for and identifying the 17 stands, all of which should have been stored and then searching for the corresponding monitors on the floor.  He did not count or include other computers and monitors off the floor or in administration areas.  One of the stands had been given to Mr Olthof.  Two stands could not be accounted for.

87.     Mr Allan cross-examined Mr Onezime regarding a special file that had been kept on Mr Allan by Mr Ron Burrows of OH&S.  Mr Onezime said there was no special file.  He was particularly aware of this because he had been asked by Ms Rooney some three to four months earlier to locate such a file.  All workers rehabilitation files had been transferred to Mr Onezime’s care in Williamstown Road, Port Melbourne when the State Mail Centre re-located from Port Melbourne to Tullamarine in January 2006.  Only the current return to work programs were transferred to Tullamarine. 

Ms D Franks

88.     Ms Franks is the Staff Production Manager at MGF Tullamarine.  She had organised the counselling meeting of 28 March 2006 to discuss Mr Allan’s complaints regarding his rehabilitation program and other matters.  He was given three hours notice of the meeting on the night.  Prior to the meeting she received three letters from Mr Allan advising he may be taking notes of the meeting; he may tape record the meeting and that he would leave if intimidated.  At the commencement of the meeting there was a tape recorder on the table.  Mr Allan had informed Ms Franks that he intended to use it to record the meeting.  Ms Franks told him that was inappropriate and a discussion took place as to Australia Post’s policy on the tape recording of meetings.  Mr Allan and Ms Franks, according to Ms Franks, had raised their voices to some degree (Transcript p631).  Ms Franks said that a dock assistant’s job recording the weights of parcels had been identified as suitable for Mr Allan as the taxing and re-wrap position was not a full-time task.  The dock assistant’s job was to be examined and discussed with Mr Allan on his return from leave on 11 September 2006.  Various modifications to this job had been discussed, including Mr Allan constructing an arm support.  Mr Allan did not inspect the lectern in use as his union representative was refused access to the floor.  Eventually he trialled the job for one day.  The position was later shifted outdoors and assigned to a forklift driver. 

89.     Security surveillance of the work floor had been set up after potentially valuable items had been reported as missing from the taxing and re-wrap area (Transcript p638).  On the afternoon of 20 October 2006 Ms Franks, accompanied by Mr Bignoux, had observed a black plastic monitor stand underneath Mr Allan’s workstation.  They removed it and placed it in Mr Bignoux’s office.  At approximately 7.00pm that day the Security Officer, Mr Dean Marshall reported to Ms Franks that he had viewed Mr Allan cutting a black stand in half and disposing of the cut-offs.  Ms Franks said she found the cut-offs in separate bins, one a couple of metres from Mr Allan’s desk and the other 10 to 15 metres from his workstation.  She collected the cut-offs and the remaining stand and locked them in a filing cabinet.  She reported her actions verbally and in writing to the Manager, Mr Grogan.  On the advice of Mr Grogan, the decision was made to suspend Mr Allan forthwith.  Ms Franks delivered the letter to him on 24 October 2006.  Security staff then accompanied Mr Allan to the locker room to remove his personal items and see him off the premises.  It was then that the sheaf of bulk mailing documents was found in the locker.

90.     Mr Allan cross-examined Ms Franks about the counselling meetings, team meetings and the surveillance.  In the case of the surveillance, Ms Franks said that Mr Allan’s general area had been subject to surveillance as this was the area where mail items had been reported missing.  Only two people, on different shifts, worked in Express Post re-wraps and Mr Allan was one of these.  The other worker had reported the items missing.  The area was freely accessible to the other workers on each shift. 

91.     Ms Franks regarded Mr Allan as not co-operating with the return to work program, raising unreasonable issues in relation to the dock assistant job, being difficult to manage and having a very poor work performance.

92.     Mr Allan asked Ms Franks if any of the Acer monitor stands had been used in the recent installation of two screens attached to the top of a filing cabinet in outbound international mail.  Ms Franks had no knowledge of these installations. 

93.     Mr Allan asked Ms Franks if she thought he had been over monitored and his activities over reported.  She said she did not.  She said his poor performance had attracted this level of monitoring. 

94.     The Tribunal asked how frequently warning and informal counselling meetings occurred at Tullamarine.  Mr Franks said that in her experience lower level counselling of a worker occurred approximately once a month and warning counselling meetings once every six months.  She confirmed there were 200 to 210 staff members at MGF. 

Ms M Long

95.     Ms Long was an Operations Manager at Port Melbourne and is now an Area Co‑ordinator at MGF.  Her contact with Mr Allan was mainly in 2004 and 2005.  During Mr Allan’s shift she said there would be 10 managerial or supervisory staff and herself on duty and thus readily accessible to workers on the floor.  Mr Allan was regularly late and left early without completing the required form or reporting to a supervisor.  His actions were reported to her by the timekeeper.  In addition, Mr Allan had excess recreation leave credits that needed to be utilised. 

96.     Ms Long acknowledged that in an email to Mr Carlton, then the acting Human Resources Manager, she wrote that she was frightened of dealing with Mr Allan without a witness present and that she had trouble controlling her temper when dealing with Mr Allan.  She wanted to avoid being placed in a position where she might be the subject of a Code of Ethics breach.

97.     On 15 April 2005 Mr Allan had reported to Ms Long that his left hand or wrist was painful, swollen and bruised.  She did not notice any swelling or bruising but had deputised Mr Bignoux to fill out an Incident Report Form (P400 form).

98.     Ms Long had dealings with Mr Allan regarding overtime provision, his rehabilitation program and provider, the unauthorised use of computers and various complaints regarding his work performance (R25).  In an email to Mr Phillipou and Mr Franken, Ms Long had described Mr Allan as:

Looking like a zombie, the way he was walking around almost mechanical it was scary and my main concern is whether his mental state is table [sic]. 

Mr Allan asked Ms Long to elaborate on what she meant by describing him as a zombie.  She answered:

Walking around in dirty clothes, with long dirty hair.  Walking around like you didn’t know where you were going.  And walking away from everyone else.  Not being part of the team.  What can I say John. (Transcript p858)

Not surprisingly, Mr Allan took umbrage to the suggestion that his clothes and hair were dirty.  He explained that his hair appeared lank because he had psoriasis of the scalp, necessitating the application of a greasy ointment daily.  Ms Long also made the comment:

It was one person versus the rest of the supervisory staff who were very uncomfortable working around you, John. (Transcript p858)

Ms Long denied Mr Allan was over monitored and that supervisors to whom he had been told to report were frequently unavailable.  Ms Long said that at the time there were 35 rehabilitees at MGF (Transcript p849).  (The Tribunal notes this tallies with figures given by Mr Hutchinson and indicates that at any one time 16 to 17 per cent of employees at MGF were on rehabilitation programs.)  In response to Mr Allen’s complaint that no work was available on many of his shifts, Ms Long indicated that when no work was available all rehabilitees were expected to sit in the team work area and wait for work, that is, for mail to come in.

99.     The Tribunal asked Ms Long if, once the structured program was in place for an individual worker, was it followed rigidly?  Ms Long indicated this was the case; for example, if Mr Allan was required to do five minutes of stretching exercises per hour this was interpreted as meaning he worked for 55 minutes and then exercised for five minutes.  If he did not take these five minutes or took it after 10 minutes of work, rather than after 55 minutes, he had failed to follow his program (Transcript p861).  Mr Allan said he regarded the actions of his team leader collecting him from one task and taking him to the next, whether there was any actual work to do, as being treated like a baby (Transcript p863); whereas Ms Long said she considered this to be very good supervision (Transcript p863).  Mr Allan asked if it was reasonable for him to have objected to the practice of his fellow mail officers reporting on his activities to supervisors.  Ms Long said she regarded this as appropriate as it went to concerns involving the morale of the facility workers.

100.   Ms Long confirmed that eight staff supervisors who were concerned with overseeing Mr Allan had been sent for counselling via the Employment Assistance Program.  The exact nature of the counselling was unknown to her.  Ms Long could not recall the nature of Mr Allan’s injuries nor that he had been diagnosed with an anxiety disorder in May 2005. 

101.   Ms Long agreed with the Tribunal’s suggestion that given her knowledge of the work floor duties she would have input into the identification of suitable duties for Mr Allan or any other rehabilitee, in the design of a return to work program.  She said she did so with all rehabilitees with the exception of Mr Allan.  The Tribunal noted that Ms Long had some difficulty controlling her temper when cross-examined by Mr Allan and frequently raised her voice.

Mr S Bignoux

102.   Mr Bignoux was a Process Manager at Port Melbourne and is now a Process Leader at Tullamarine.  He had completed the P400 Incident Report Form regarding Mr Allan’s left wrist symptoms on 14 April 2005.  He did not recall Mr Allan showing him his wrist and could not comment on any swelling or bruising.  The injury was described as pain from the wrist down to the fingers on the left arm. 

103.   Mr Bignoux had on occasions chastised Mr Allan for incidents, such as propping open an exit door near his work site.  Mr Bignoux believed that supervisors should be treated with respect and their orders followed.  At times Mr Allan was fairly aggressive (Transcript p898) and Mr Bignoux felt intimidated.  In his evidence Mr Bignoux confirmed that he, in the company of Ms Franks, had found the computer stand near Mr Allan’s desk.  He said Ms Franks was about to throw it away when he intervened and said he would return it to the stores’ shed.  In the interim he placed it on a filing cabinet in the Express Post supervisor’s office.  Mr Bignoux had seen the surveillance video some days after it was recorded. 

104.   Under cross-examination Mr Bignoux agreed that if there was no suitable work available for Mr Allan he would be told he could go home.  In these circumstances Mr Bignoux would send an email after he had identified there was no work to be done (Transcript p 904).  Mr Allan took Mr Bignoux to several specific incidents but he could not remember them.

105.   Mr Allan asked each manager what was the appropriate thing to do if a worker developed pain during their shift.  All answered similarly.  The worker should report it to the supervisor.  Mr Allan contended that the correct initial response was to cease the offending work task.  He also asked the majority of these managers if they were familiar with his injuries including his claim for a psychiatric disorder.  Apart from the rehabilitation providers, none of the managers was fully aware of the extent of his claimed injuries.

Mr P Olthof

106.   Mr Olthof conducted the enquiry into Mr Allan’s alleged breaches of Australia Post’s Code of Ethics.  These have been set out in paragraph 21 above.

107.   Mr Olthof held interviews on 27 October 2006 and 1 November 2006.  At both meetings Mr Olthof, Mr Allan, a union representative and Ms Grinberg were present. Ms Grinberg acted as the scribe at the first meeting.

108.   Mr Olthof determined that all breaches were proven.  In relation to breach number five ‑ You have impacted on revenue collection and correct mail processing procedures by withholding corporate Australia Post documents ‑ he found no intention to defraud Australia Post. 

109.   At the interviews Mr Allan had stated that the computer stand was his property obtained at a refuse skip outside a computer parts disposal company in Port Melbourne.  He denied the hacksaw and the razorblade were his and claimed that his recording of the bulk document lodgement data was approved at managerial level.

110.   At the first interview it had been stated that Mr Allan had been witnessed coming out of the storage shed.  Mr Olthof made further enquiries of the alleged witness identified as Effie Tsaposias.  She denied any knowledge of the event. 

111.   Mr Olthof provided a detailed statement addressing all aspects of the enquiry (R21).

MEDICAL EVIDENCE

Associate Professor G Mendelson

112.   Professor Mendelson is a consultant psychiatrist who saw Mr Allan at the request of the Respondent on 30 January 2006 and again on 17 March 2008.  In all, he provided three reports including a commentary on the report of the psychologist Mr Clyde Smithwick.  Professor Mendelson’s report of 30 January was extremely detailed.  He concluded that Mr Allan did not have a diagnosable mental disorder on 30 January 2006.  Mr Allan did however have personality traits which predisposed him to feelings of anger and resentment when involved in a situation of potential or actual conflict with authority or authority figures.  Professor Mendelson had reviewed the previous psychiatric reports arising from Mr Allan’s WorkCare claim in the late 1980s and the reports of Mr Smithwick.  He agreed that there were various personality traits but found no evidence of an adjustment disorder as diagnosed by Mr Smithwick in 2005.  In his report of 17 March 2008 Professor Mendelson considered Professor Wong’s diagnosis of bipolar II disorder and totally rejected it.  He believed that the only psychiatric diagnosis relevant to Mr Allan was that of personality disorder, which was not work related.

113.   In his evidence before the Tribunal, Professor Mendelson confirmed his diagnosis of personality traits that caused Mr Allan to experience conflicts in various situations.  The Tribunal asked Professor Mendelson why he was not prepared to make a diagnosis of a personality disorder.  He said that he regarded such diagnoses as being too judgemental and preferred to describe the individual’s behaviour as traits rather than disorders, despite the fact that the standard diagnostic tool, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) does list various personality disorders.  Professor Mendelson was asked if such a pre-existing personality trait or disorder could be contributed to by employment disciplinary action and whether this was a medical or a legal question.  Professor Mendelson answered that if there was specific evidence of an event causing symptoms or exacerbating specific symptoms, then it was reasonable for a doctor to conclude that this particular event had contributed to the symptomatology.  The question of whether the action taken was reasonable or not was not a medical question.  He was of the opinion that such events can exacerbate the way that a personality disorder or trait is manifested:

For example, that person can become more easily angry or feel more upset, or become aggressive in a particular situation and that is due to the interaction between the personality treys and the environmental stressor.  

He did not regard this effect as an aggravation but simply a disorder becoming more manifest.  Mr Moulds asked Professor Mendelson if it was the personality disorder creating the circumstances in the environment or was it the environment making the personality disorder symptoms worse.  Professor Mendelson answered:

It depends on the facts and whether or not there is some objective support for an assertion, for example, that in this case that the compensation claim was being mismanaged or that something was being deliberately done to adversely affect the person.  Now if there is objective support for that view then obviously one can say well this is an understandable emotional response and there was a specific cause for it.  If on the other hand it involves some misinterpretation of the event then again one can say, well this is really much more to do with the personality trait or disorder than with the reality of the situation that is being misinterpreted.  (Transcript p322)

114.   On further questioning from the Tribunal, Professor Mendelson agreed that of all the types of personality disorders/traits outlined in DSM-IV that which most appropriately fitted Mr Allan’s traits was that of a paranoid personality disorder. 

115.   Under cross-examination Mr Allan asked Professor Mendelson if he would be rendered more vulnerable having experienced, traumatic stressful events while working for the Victorian Railways in the late 1980s.  Professor Mendelson said such an event could render someone:

… more sensitive and more vulnerable to react more strongly should anything similar occur in the future.  (Transcript p328)

On the other hand he believed some people learn from the experience and are able to deal with future events more adequately. 

Documentary Evidence

116.   There is a vast amount of documentary evidence before the Tribunal.  The Tribunal has examined all of the material but has only considered those documents relevant to the issues before the Tribunal. 

117.   Mr Allan’s WorkCare file arising from his employment with the Victorian Railways and his harassment by a gang of youths was presented in full.  This confirmed the events of which he complained, and which he contended caused a stress reaction with anxiety and depression.  It was in this period that he underwent several psychiatric examinations and reports from consultant psychiatrists Dr Paul Kornan dated 4 May 1990; Dr Henry Stevenson dated 20 December 1989, Dr Lee dated 29 October 1989, Dr Kahans dated 26 May 1986 and 4 April 1987; Dr Ross Robinson dated 27 May 1986 and Dr Freed dated 27 June 1986 were tendered in evidence.  In all cases a diagnosis of a personality disorder was made; with Dr Kornan describing this as a paranoid personality disorder.  Dr Stevenson, having diagnosed a personality disorder, also made a diagnosis of an anxiety depressive reaction to the traumatic events of the 1980s.  Dr Freed made a similar diagnosis, as did Dr John Garland, whose report was not tendered. 

118.   Mr Allan was referred to Mr Clyde Smithwick, a consultant psychologist, by his treating general practitioner, Dr Roger Fagan.  Mr Smithwick first saw Mr Allan on 19 April 2005.  Mr Smithwick noted Mr Allan’s shoulder, elbow and wrist injuries and their psychological impact.  Mr Allan told Mr Smithwick that he felt his supervisors had not followed the return to work program devised by his rehabilitation provider and doctor and that the supervisors had pressured him into returning to a normal work output without regard to his physical limitations.  As a result he had become stressed out. 

119.   Mr Smithwick diagnosed an adjustment disorder with anxiety and depressive symptoms, contributed to by Mr Allan’s employment.  He also diagnosed a personality disorder that rendered Mr Allan rigid in his ideas and easy to anger.  Both of these traits had been aggravated by perceived bullying and harassment at work.  At the time of his report, 23 January 2007, Mr Smithwick was aware that Mr Allan had been dismissed from his employment and as a result his condition had worsened.  Overall, Mr Allan’s prognosis was unclear.  Mr Smithwick was of the opinion that Mr Allan would have difficulties adjusting to any workplace and that given his existing physical injuries his general capacity for work was limited. 

120.   The general practitioner, Dr Malek, referred Mr Allan to Associate Professor Michael Wong.  Professor Wong first saw Mr Allan in March 2007 (R15).  Professor Wong noted Mr Allan’s past history, particularly his psychiatric disorder in the mid‑1980s and the then diagnosis of a personality disorder.  He obtained a history of increasing depression with disturbed sleep, loss of appetite, weight loss of 20 kilograms, with reduction of energy, motivation, interest, attention and concentration since May 2006.  He also recorded interspersed episodes, lasting up to three days, of anger, irritability and increased energy.

121.   Based on the history he obtained from Mr Allan, Professor Wong was of the opinion that the most likely diagnosis was that of Bipolar II Disorder characterised by depression, punctuated by repeated hypomanic episodes.  Professor Wong prescribed Epilim, which was added to Mr Allan’s existing regime of Lexpro, and continued counselling.  Mr Allan gave evidence that he continued to see Professor Wong on a regular basis throughout 2007 and 2008. 

MR ALLAN’S PHYSICAL INJURIES

122.   Mr Allan’s right shoulder rotator cuff syndrome and the underlying damage to several muscles has been well documented, the subject of several medical experts opinions, and has been objectively delineated by MRI investigation.  Similarly, the left and right elbow episodes of epicondylitis, commonly called tennis elbow, have been confirmed by Dr Boon, Dr Fagan, Mr Booth (T38) and Associate Professor Barnsley (T39). 

123.   Mr Allan completed an incident report on 15 April 2005 regarding an injury to his left wrist, which is the subject of one of the decisions under review.  While there are several references to this injury, the most complete and detailed medical report is that of Associate Professor Barnsley dated 1 June 2005.  Mr Allan reported pain in the left wrist with some numbness in the left fourth and fifth fingers but denied any swelling.  He attributed the pain to general work following an increase in his duties.  Physical examination revealed tenderness on palpation of the radiocarpal joint with a normal range of movement and no discernable swelling.  Sensation was normal. 

197.   Masters Le Mesurier was highly critical of Australia Post’s rehabilitation processes.  They found poor record keeping, return to work programs not consistent with the medical advice and certification and, in 50 per cent of the files they examined, that there was no evidence that the employee had been involved in the construction of the program. 

198.   Mr Allan’s RTWPs were constructed on a monthly basis and were said to be based on the FND’s medical certificate as well as consultation with the employee.  Mr Hutchinson told the Tribunal he acted only on the diagnosis provided by the FND.  If the FND failed to enter all injuries in the certificate those not entered were taken to be inactive.  From the time of his injury in 2003, Mr Allan regularly attended the FNDs Dr Boon and later Dr Fagan, who provided certificates active for a period of one month.  At various intervals, Australia Post obtained opinions from other FNDs which were at times in conflict with the recommendations of Doctors Boon and Fagan.  Mr Allan objected when his long-term treating doctors’ recommendations were overlooked and those of Dr Elder, Dr Poppinbeek and Dr Fraser were substituted.  The Tribunal does not know what training Australia Post provides to its FNDs.  Certainly, in general, workers’ compensation medical certificates following the initial report are in the nature of progress reports.  Despite the initial incident report of the accident of 5 November 2003, which notes injuries to the right shoulder, right elbow and right wrist, the left shoulder, left elbow and left wrist, the back and the neck, the RTWPs up until 10 February 2004 mentioned only the right shoulder injury.  From 10 February 2004 the injuries were described as right shoulder, right tennis elbow and left tennis elbow.  Thereafter, the left and right tennis elbows appear intermittently.  Dr Gross’ certificate of 26 May 2004 states shoulder and left elbow clerical duties only.  Dr Boon’s certificate of 2 June 2004 states that the duties that Mr Allan had been doing were unsuitable and recommends transfer to another centre.  An earlier certificate from Dr Boon had recommended clerical duties only.  Dr Fagan’s certificate of 15 April 2005 mentioned the shoulder, both elbows and the left wrist.  His certificate of 2 June 2005 also included a diagnosis of a stress disorder and again recommends re-deployment.  Australia Post had sent Mr Allan to see Dr Andrews to obtain a fitness for duty assessment in April 2005.  She diagnosed a right rotator cuff injury, bilateral epicondylitis and tenosynovitis of the left wrist.  She made recommendations regarding Mr Allan’s capacity for work and these were not instituted.  In some of the RTWPs in early 2004 all the injuries had been entered but then the wrists, the knees, back etcetera were crossed out, although two months later these injuries were restored.  Mr Allan signed all RTWPs, up to and including that dated 4 April 2005.  Thereafter, he occasionally signed a RTWP.  There are other minor errors, such as Ms Davis recording the date of injury as being 5 November 2005 instead of 5 November 2003 and Mr Hutchinson referring to the left shoulder when be obviously meant the right shoulder.

199.   Mr Onezime gave evidence that when the MGF shifted from Port Melbourne to Tullamarine in January 2006 all existing RTWPs and their accompanying medical certification were placed in storage.  Only current programs were kept in a supervisor’s office at the facility.  Mr Onezime also denied that he had received for storage, communications between Mr Ron Burrows and Ms Grinsberg relating to a file that Mr Burrows had kept separate from his general file concerning Mr Allan’s injuries, work performance and counselling. Mr Burrows’ email said he had lodged this with Mr Onezime for filing. 

200.   None of the Australia Post supervisors or managers who gave evidence were fully aware of Mr Allan’s injuries at any time.  Mr Onezime and Ms Long’s comments in emails addressed at the hearing, regarding Mr Allan’s state of mind and those of Ms Franks at the meeting in March 2005 as recorded on CD1 were totally unacceptable, given Mr Allan’s five month absence from work in 2005 with an adjustment disorder. 

201.   While Mr Allan frequently complained about some of the tasks included in his RTWP and of the lack of rotation of tasks (as advised by a vast majority of the medical practitioners) it is obvious that he was not involved in the construction of all RTWPs.  This is particularly obvious during his absence of five months in 2005 and his absence on annual leave in 2006.  In both of these periods the rehabilitation providers continued to construct RTWPs and to modify them, often on a fortnightly basis, although Mr Allan was not at the workplace. 

202.   The Tribunal found Mr Hutchinson a truthful and helpful witness.  He was obviously frustrated by his inability as a Rehabilitation Provider to provide suitable work tasks and suitable rotations for Mr Allan.  While Commissioner Gay was most impressed with Ms Davis as a witness, this Tribunal was not.  She had poor recall of events and appeared to the Tribunal to be distracted.  It may be that she was not well on the day. 

203.   Mr Allan has a particular interest in occupational health and safety matters.  It was this interest that lead to the argument with Ms Jane Lauber at the Hurstbridge Licensed Post Office in 2000.  In May 2005 Mr Allan applied for, and on 12 May 2005 was appointed to, the position of Deputy Health and Safety Representative.  This appointment was reversed on 25 May 2005 on a technicality, the method of appointment not having been followed exactly.  This voluntary position remained vacant for many months.  During 2004 and 2005 Mr Allan completed several Safety Observation Feedback Forms, reporting Unsafe acts/conditions.  During this period he reported some 87 breaches of Occupational Health and Safety rules.

204.   Mr Allan demonstrated the same interests and concern in regard to his own RTWPs and any adverse physical events that occurred at work.  For example, if he developed shoulder pain while working he firmly believed he should cease the offending activity.  His supervisors equally firmly believed the first action to be taken was to report the occurrence to a supervisor, and when so instructed, to report the event by email; but in the interim to continue with the RTWP until it was altered by certification of an FND.  Adherence to the current RTWP was enforceable and enforcement was practised.

205.   It was clear that Australia Post managers and supervisors had difficulties dealing with Mr Allan, his questioning and seeking clarification of decisions such as the legality of tape-recording meetings; his complaints of symptoms exacerbated by work tasks; the inability of Australia Post to provide sufficient work and rotate tasks as prescribed in the RTWPs and his late arrivals at work and early departures when no work was available, some of which were recorded on the provided forms but many were not.  Mr Allan is far from being compliant or what might be termed a yes man.  Some emails reveal a degree of exasperation on the part of managers with comments such as here we go again (Ms Long) and John is up to his old tricks again, why does he have to be treated differently from other staff? (Mr Onezime ‑ email of 12 September 2006).  Ms Long felt that she couldn’t discuss issues with Mr Allan, except in the presence of a third person acting as a witness.  She stated she feared she would lose her temper and become, herself, the subject of a Code of Ethics enquiry. 

206.   Despite the above, the Tribunal does not accept Mr Allan’s contention that there was a conspiracy amongst managers and supervisors of Australia Post who, as he put it, set him up and sought to remove him from Australia Post’s employ.  However, there does appear to have been a bonding of supervisors and managers resulting from their inability to cope with Mr Allan and their lack of skills in dealing with an unconventional individual. 

207.   Australia Post’s Code of Ethics states that all employees commit to:

·Treating everyone with courtesy, patience and respect and not causing disadvantage, discomfort or embarrassment to fellow employees.

·Contributing to an atmosphere in which diversity of constructive opinion, perspective and culture is valued and encouraged.

·Contributing to continuous improvement through the exchange of information, opinions and ideas.

·Being adaptable and having a positive approach to change by supporting new ideas, programs and practices that benefit the business and its stakeholders.

·Ensuring that there is no direct or indirect discrimination or harassment. 

208.With respect to work practices and performance the Code states:

Honesty and high performance standards will prevail.  We commit to:

·Being aware of, and complying with, Australia Post policies and all applicable laws, industrial awards and agreements governing our business conduct, and seeking clarification if needed.

·Ensuring, to the best of our knowledge, that all declarations or statements relating to Australia Post are true and correct.

·Consistently performing work to an agreed or prescribed standard or higher.

·Exercising due care in our work.

·Attending work reliably and on time, consistent with the hours of duty arrangements and advising of inability to attend and absences during duty, in accordance with the correct procedures.

·Acting and behaving in a manner that never intentionally causes damage to Australia Post’s business interests, employee relations or public reputation.

·Not engaging in conduct that intimidates, offends or damages the property of other employees, customers, suppliers or the public.

·Not engaging in any transaction at the workplace between employees whereby interest, money or kind is charged or paid.

209.   The Code appears to be interpreted broadly. Presumably, Mr Allan’s counselling regarding tape-recording of meetings is covered by workplace relationships and not causing disadvantage, discomfort or embarrassment to fellow employees.  Equally, the habit of walking between staff sorting at ULDs and throwing sorted mail into receptacles was presumably covered by exercise due care in our work as this was the subject of complaints by fellow workers.  The damaging of Australia Post property seems to be implied as it is not mentioned in the Code of Ethics.  It is clear he failed to meet the work practice covered by dot point five, in that he was frequently late for work and allegedly absent during duty without cause or permission and did not always follow correct procedures with respect to notification of his late arrival or early departure.

210.   During 2003 and 2004 Mr Allan was not subject to any disciplinary or counselling processes.  In 2004 he worked two hours per night on average, despite his shift being from 6.00pm to 1.21am.  He was frequently sent home even earlier, as no suitable work in accordance with his RTWP could be provided.  On 22 October 2004 a face-to-face discussion between Ms Long, Mr Phillipou and Mr Allan took place.  Two issues were addressed:

1.Mr Grogan the Manager of MGF had spoken to Mr Allan regarding his posture.  Mr Allan was sitting on a chair with his feet on a rail.  When Mr Grogan left the area Mr Allan resumed the position with his feet on the rail.  At the face-to-face discussion he explained he adopted this position in order to rest the clipboard he was using on his knees while he wrote.  This position reduced any traction on his injured right shoulder.  Mr Allan was advised by Ms Long to speak with the Rehabilitation Provider regarding provision of a footrest or some other aid. 

2.Mr Allan was directed to take his RTWP -prescribed, five-minute task breaks, one hour after his shift commenced and not before; and that he must stay within the facility during these breaks, walk within the facility and perform his exercises in the First Aid room.  He was not to walk outside in the dark or to go to the car park.  Mr Allan argued that this approach was unreasonable as he needed to get his medication which he kept in his car.  He was told to obtain his supervisor’s permission to leave the facility to get his medication.  Given that Mr Allan was only working a two-hour shift he was only entitled to one five minute break during that work period.  Mr Allan smoked a pipe and often did so during his five minute breaks.  Ms Long gave evidence to this effect as she also smokes and does so in the car park area during her breaks.  She had seen Mr Allan smoking in the car park.

211.   Early in 2005 Australia Post identified a greater range of suitable duties consistent with Mr Allan’s medically imposed restrictions and his work hours were increased to a six hourly shift, and in turn to full time hours over a period of two to three weeks. 

212.   Another informal face-to-face discussion took place between Mr Allan and Mr Glen Carlton on 13 April 2005.  This discussion was primarily concerned with Mr Allan’s accrued recreational leave and also his attendances and absences in the workplace.  Ms Long and Mr Franken had discussed Mr Allan’s absences from the workplace on 12 April and Ms Long had provided a list of 12 late work arrivals since 12 March 2005.  Mr Allan explained the causes for his lateness as problems with his car, traffic on the Tullamarine Freeway and his commitment to looking after his mother, including an inability to leave home until another family member relieved him of his caring duties.  Mr Carlton noted that the attendance pattern indicated that Mr Allan arrived at work within 30 minutes of the scheduled starting time.  The need for Mr Allan to advise the Operations Manager of early departure was also stressed and Mr Allan undertook to improve his performance in all these respects.  The following day Mr Allan reported his left wrist injury and on 19 April Mr Smithwick’s certification of an adjustment disorder was provided. 

213.   In his evidence Mr Allan described the meeting with Mr Carlton as excellent and most helpful. 

214.   Thus, at the time of the diagnosis and notification of Mr Allan’s adjustment disorder, he had been subjected to two discussions regarding his work practices and performance.  In each case he had explained the reasons for his actions and had undertaken to abide by Australia Post’s requirements.  These discussions appear to equate with face-to-face feedback as described in the Employee Counselling and Discipline Policy and Procedures document (ECDP).  This states that such face-to-face meetings are attracted by a minor shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics (Clause 6.2.3a of the ECDP).  Formal and Warning Counsellings and a Disciplinary enquiry are also defined in the ECDP. 

215.   The Tribunal is satisfied that at the time of diagnosis of the adjustment disorder the identifiable stressor was the new injury of tenosynovitis of the left wrist, suffered by Mr Allan and attributed by his FND and Dr Andrews to work tasks as outlined in the RTWP, which was constructed in reliance on Dr Elder’s assessment, albeit modified to a more conservative level by Mr Peter Hutchinson, and not the result of the informal face-to-face discussions of 22 October 2004 and 13 April 2005.  This injury and its occurrence while on a RTWP was the material cause of Mr Allan’s adjustment disorder (Wiegand and Comcare Australia [2002] FCA 1464).

216.   The Tribunal accepts Associate Professor Mendelson’s opinion that, as of 30 January 2006, Mr Allan did not have a diagnosable psychiatric disorder; that is, his adjustment disorder had resolved.  Dr Fagan did not mention stress or an anxiety state in his certificates beyond the one dated 20 October 2005, in which certificate he advised Mr Allan could return to work on 5 November 2005.

217.   Based on this medical evidence, Mr Allan suffered from an adjustment disorder from 14 April 2005 until 30 January 2006 and this was attributable to his new physical injuries materially contributed to by his RTWPs.  An adjustment disorder developed in response to a work-related stressor may be considered a mental injury for the purposes of s 4 of the Act (prior to the amendments of 13 April 2007).

218.   The Tribunal is uncertain of the exact period of Mr Allan’s absence from work in 2005.  Mr Moulds stated that Mr Allan was off work from 16 May 2005 to 17 October 2005.  Mr Phillipou gave evidence that he had requested a face-to-face discussion with Mr Allan to be conducted on 31 May 2005.  This had proceeded in the presence of Ms Long and Mr Long Nguyen, a union representative.  The agenda for this meeting included Mr Allan’s late attendances, his accrued recreational leave, Dr Fagan’s suggestion that Mr Allan be redeployed and a new request from supervisors and managers to address Mr Allan’s ‘behavioural issues’.  Mr Allan attended this meeting but walked out after an unknown time, stating he had enough and wasn’t feeling well.  Mr Allan asserted that he had been held against his will.  Mr Phillipou denied Mr Allan’s exit had been obstructed.  Following this meeting, Mr Allan was absent on annual leave (later converted to sick leave) for five months.

219.   The Tribunal has examined the evidence before it in two time periods: first from the time of his injury from 5 November 2003 up to his return from five months sick leave on 17 October 2005 and the second period from 18 October 2005 until Mr Allan’s dismissal from Australia Post’s employment on 27 November 2006.  There is no contemporaneous medical evidence during the second period that Mr Allan suffered from a psychiatric disease or mental injury. 

220.   During this second period Mr Allan was subjected to formal counselling on 29 November 2005, 6 April 2006 and 10 April 2006.  Warning counsellings took place on 28 September 2006, 3 October 2006 and the disciplinary enquiry was conducted on 27 October and 1 November 2006, to be followed by a Board of Reference hearing on 8 January 2007. 

221.   While Mr Smithwick reported on 5 December 2006 that Mr Allan’s symptoms had magnified, he attributed this to Mr Allan’s sacking.  As Mr Smithwick had not seen Mr Allan since July 2005 he was not in the position to accurately comment on Mr Allan’s symptomotology during this latter period.  The Tribunal is not able to identify any psychiatric disease or injury during this period and there were no further reports of physical injury other than his ongoing right shoulder pain and intermittent minor pain in both elbows.  While Mr Allan has claimed that he was harassed and bullied by supervisors and managers during this period, he did not identify any injury.  It is therefore not necessary for the Tribunal to consider whether the disciplinary procedures taken by Australia Post were reasonable or not.  Commissioner Gay has found that Mr Allan did damage Australia Post property and that this amounted to serious misconduct, giving a valid reason for Mr Allan’s termination.  While this Tribunal is not convinced on the evidence before it, which may well differ to the evidence that was before Commissioner Gay, that the Acer computer monitor stands were Australia Post property, the Tribunal has no jurisdiction to challenge the findings of the AIRC.

222.   The Tribunal accepts that the warning counselling and disciplinary enquiry were reasonable disciplinary action taken against Mr Allan with respect to breaches 1 and 4 and possibly 2, although the penalty of dismissal appears harsh (Comcare v Chenhall applied).  The Tribunal expresses its concern at the apparent lack of knowledge of, let alone familiarity with, the Comcare Service Standards among Australia Post MGF personnel.

DECISION

223.   The Tribunal affirms the Respondent’s liability under s 14 of the Act to pay Mr Allan compensation for the right rotator cuff injury. 

224.   The Tribunal varies the decision under review to the extent that it finds that Mr Allan’s left wrist tenosynovitis was a work-caused, although transient, condition.  Similarly, the adjustment disorder diagnosed on 14 April 2005 resulted from further physical injury while on a RTWP that tended to fluctuate in terms of the provision of tasks and in particular the rotation of these duties in early 2005.  On the medical evidence before the Tribunal, the adjustment disorder had resolved by the 30January 2006 that being the date Associate Professor Mendelson found no present evidence (emphasis added) of a psychiatric disorder.  This date is in conflict with Dr Fagan’s certification that Mr Allan was fit to resume work on 5 November 2005.  His clinical notes indicate that he discussed Mr Allan’s stress disorder with him on 27 November 2005.  The Tribunal accepts the evidence of Dr Mendelson, an experienced psychiatrist.

225.   The matter is remitted to the Respondent to determine the compensation payable to Mr Allan pursuant to s 14 and s 16 of the Act for:

(a)left wrist tenosynovitis from 15 April 2005 (the date of Dr Fagan’s certificate) to 13 February 2006 (the date of Mr Rush’s report); and

(b)an adjustment disorder with depressed mood and anxiety from 15 April 2005 (the date of Dr Fagan’s certificate) to 30 January 2006 (the date of Dr Mendelson’s assessment).

226.As this decision is marginally more beneficial to Mr Allan than that of the primary decision-maker the Respondent shall pay the Applicant’s costs in this matter in an amount agreed by the parties or, in the event that the parties cannot agree, as taxed by the Tribunal.

I certify that the two hundred and twenty‑six [226] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd):   Leah Berardi

Clerk

Dates of Hearing  27 March 2007, 2 July 2007, 19‑20 November 2007, 31 March 2008, 1-4 April 2008, 12‑13 May 2008

Date of Decision  13 March 2009
Solicitor for Applicant                  Nil ‑ Self-represented
Counsel for Respondent              Mr A. Moulds
Solicitor for Respondent              Australian Government Solicitor