ANGELO BAUDUCCIO and COMCARE

[2009] AATA 333

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 333

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4667

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ANGELO BAUDUCCIO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member  

Date12 May 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe

Senior Member

COMPENSATION - adjustment disorder - alleged harassment - whether injury - whether within bounds of applicant's normal functioning - incapacity for work - failure to obtain a benefit in connection with employment.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

12 May 2009 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent dated 4 September 2007 to affirm a prior determination of 29 June 2007 that it was not liable to pay compensation to the applicant for aggravation of adjustment reaction with mixed emotional features. 

2.      At the hearing, the applicant, Mr Bauduccio, was unrepresented.  The respondent was represented by Mr J. Lenczner of Counsel. 

3.      Mr Bauduccio had been employed by the Department of Defence at Victoria Barracks Melbourne in a section known as Royal Australian Air Force Aeronautical Information Service (RAAF AIS).  On 24 January 2007, Mr Bauduccio lodged a claim for compensation for a medical condition described by his general practitioner as adjustment disorder with depression and anxiety.  In the claim he described the cause of his injury as a series of harassment by fellow workers and work pressure, that I was verbally abused in front of all the workers and that he was injured by workload, and others [sic] workers.  He stated that the person responsible was a Grace Donato. 

4.      Mr Bauduccio has a history of compensation claims and three of these are relevant in considering this application.  In October 2003 a claim for psychological injury was made alleging harassment by a co-worker as the cause.  Compensation was denied initially but, after seeking Tribunal review, the matter was resolved by consent and compensation was paid for a limited period from 3 September 2003 to 24 November 2003.  As a result of advice from a psychiatrist that it would be preferable for Mr Bauduccio to be employed in a different workplace, he commenced work at the RAAF Museum at Point Cook on 28 January 2004.  In September 2005 a compensation claim for depressive disorder was made attributed to being required to transfer back to RAAF AIS and the stress of negotiating the role to be filled.  This again was denied but, again, was resolved with a consent decision of the Tribunal awarding compensation from 21 July 2005 to 31 August 2005.  On 13 September 2005, Mr Bauduccio submitted a claim for bruising of his coccyx sustained in a fall in a shower.  This claim was denied also and the decision affirmed by this Tribunal on the grounds that the injury occurred prior to the commencement of work and unrelated to work. 

5.      Mr Bauduccio resumed work at RAAF AIS on 12 September 2005 on a limited time graduated return to work basis.  He became full time from January 2006. 

6.      Mr Bauduccio said that he was originally a toolmaker at the ordinance factory at Maribyrnong from 1982.  In 1988, after the factory closed he transferred to a drawing office in St Kilda.  After the closure of this office, he transferred to RAAF AIS as a draftsman generating images on computers and training as a cartographer.  On his return to RAAF AIS in September 2005 he was placed in the cartography section.  Mr Bauduccio maintained that this new role was difficult and he was overworked, under-staffed and under skilled.  He said that he worked excess hours to accomplish the work then done by two people where there had previously been six people.  He said that he felt isolated and no one would talk to him.  He said that he tried to ignore this and just get on with the work. 

7.      Mr Bauduccio said that when he returned from leave in September 2006 he found the telephone formerly on his desk had done and been replaced with another.  He said that he needed a telephone with a speaker so that he could talk and listen while using both hands on paperwork.  After looking around the office, he found his phone on a desk in an empty cubicle.  He then took that telephone and replaced it with the one that had been left on his desk.  Later he was approached by a Samantha O’Connell and Debbie Fisher who he described as being very nasty in demanding that he return the phone to where it had been.  Mr Bauduccio said that he apologised but they continued to berate him until he finally stood up to get himself a cup of tea.  He acknowledged that the two ladies said that he picked up a fork in a threatening manner but denied that this had happened. 

8.      The next incident which loomed large in the evidence of Mr Bauduccio related to a Dymo labelling machine.  He said that he requested that such a machine be purchased.  On arrival it was placed on his desk and the appropriate software installed on his desk computer.  Subsequently, Ms Donato advised him that the Dymo machine was to be available for all staff and was removed from his desk.  In October 2006, after some weeks without the machine Mr Bauduccio asked Ms Fisher where it was so that he could use it.  She gave him a key to a cupboard and he retrieved the machine.  When asked how long he would need it, Mr Bauduccio said that he didn’t know because he had many labels to prepare.  He accepted that part of his response may have been how long is a piece of string.  After a short time, Ms Donato came to him and demanded to know what he was doing with the machine and why he had not given an appropriate answer to Ms Fisher.  Mr Bauduccio maintained that Ms Donato kept at him for some time until he unplugged the Dymo machine and handed it to her.  He said that he was upset at the incident and mentioned it to his supervisor.  Subsequently he discovered that this had been treated as a complaint of harassment and was to be investigated.  The result of the independent investigation was that there was no case to answer.  Mr Bauduccio said that he was so upset that he left work and had some days off.  He noted that he had been upset some time earlier by Ms Donato when, during a telephone call to enquire why she was holding up approval to reimburse the cost of spectacles, she hung up on him.  While Mr Bauduccio acknowledged that he had been loud and critical, as was his nature, he considered it rude to have the call terminated abruptly by Ms Donato. 

9.      Mr Bauduccio said that his problems at coping with the work had been exacerbated by the employment of a Mr R Harvey in May 2006.  He said that Mr Harvey was inexperienced and had to be assisted and have his work checked.  It was clear that Mr Bauduccio both resented and disapproved of Mr Harvey. 

10.     Mr Bauduccio said that, prior to going on leave in August 2006, he had a meeting with Wing Commander V. Lewkowski, the officer in charge of RAAF AIS.  At that meeting Wing Commander Lewkowski insisted that he work normal hours and not flex-time which had been his custom.  Mr Bauduccio said that it suited him to start at 7am and use flex-time to fit in with travel and family arrangements.  He believed that he was entitled to do so and was upset at the effort to limit such use and also limit the extra hours which he believed were needed to get the job done. 

11.     On 16 November 2006, Mr Bauduccio had another meeting with Wing Commander Lewkowski to complain at the amount of work he was expected to do, the understaffing, the need to train Mr Harvey and the general difficulties he had in coping with the work.  He said that the Wing Commander was unsympathetic and believed that he used the words you do this or you can take the door. 

12.     On 21 November 2006, Mr Bauduccio left work and has not returned other than for a meeting on 9 February 2007.  He said that he felt that this was the last straw so packed up and went home. 

13.     Mr Bauduccio said that after several attempts to arrange a meeting to discuss his future with Wing Commander Lewkowski this occurred on 9 February 2007.  A Mr E Turley attended this meeting as a witness.  Mr Bauduccio said that he was very frustrated with the response at that meeting where the Wing Commander wanted to answer all his questions with you will have to ask management.  One of the issues which concerned him particularly was said to be the failure to sign a novated lease for a motor vehicle he had purchased in September 2006.  Mr Bauduccio maintained that the paperwork had been prepared by a consultant and was within the entitlement under remuneration guidelines.  He said that the Wing Commander stated that the proposed arrangement did not comply with requirements and that he had been advised that he should not sign the papers.  Again, it was alleged that he told Mr Bauduccio to ask management.  Mr Bauduccio accepted that he became upset, likely used bad language and, at one stage stood up.  Mr Turley put a hand in front of him and he sat down.  Subsequently, he stood up, walked out of the office and slammed the door.  He said that he was surprised to be served later with a summons for assault of Wing Commander Lewkowski.  He acknowledged that he subsequently pleaded guilty before the Magistrates Court but said this was on legal advice to ensure that he would be granted a diversion order to write a letter of apology and attend an anger management course without a conviction being recorded. 

14.     Mr Bauduccio accepted that, at times, he spoke in a loud voice but that is a product of his ethnic background and he does not mean to indicate that he might hurt anyone or be disrespectful.  He accepted that those of Anglo-Saxon descent may take it the wrong way.  In relation to his feeling of isolation he noted that at one social function he sat down at a table but no other person sat with him at that table.  Later he moved to another table and those who were there got up and left. 

15.     After the incident on 9 February 2007, Mr Bauduccio was suspended on full pay.  His employment was terminated on 7 December 2007 for breach of the Australian Public Service Code of Conduct. 

16.     Ms G Donato said that she was the business manager of RAAF AIS.  She said that it had been made clear that the Dymo machine was to be connected to a stand alone personal computer for use of all staff.  When she discovered that Mr Bauduccio had taken the machine to his own desk and, when asked how long he would need it replied how long is a piece of string, she approached him and asked what he was doing with the machine.  He then disconnected the machine and pushed it across to her.  Thirty minutes later he delivered an armful of tapes and dropped them on her desk.  She denied any yelling or screaming by her and considered that Mr Bauduccio’s attitude was inappropriate.  Ms Donato accepted that she had hung up on Mr Bauduccio at an earlier time in relation to his claim for reimbursement of the cost of spectacles but said that she had done so as he was rude and yelling at me. 

17.     Ms D Fisher said that the telephone incident arose when the handset previously used by Mr Bauduccio had been located in a four person cubicle.  This handset had the number published as the point of contact for the section and had a light to show that an out-of-hours message had been received.  On 27 September 2006, it was noticed that the telephone was no longer in that position and a search located it on the desk of Mr Bauduccio.  A note was left on the telephone asking him to return it.  On 28 September, Ms Fisher went to Mr Bauduccio and asked him to return the telephone.  She said he was aggressive and said that he needed that telephone.  Ms Fisher said that she noted the incident in her diary and provided a copy of the diary page.  The note of the incident concluded: Angelo stood up. You are trying to interrogate and intimidate me and leaned on file trays. GRABBED FORK!!! prior to standing.  Ms Fisher said she did not think that Mr Bauduccio would do anything but she felt a little scared and stepped back.  She said that Mr Bauduccio did try to intimidate people and often threw files on her desk. 

18.     Mr R Harvey said that he commenced with RAAF AIS on 15 May 2006 as a Document Editor and was expected to assist Mr Bauduccio in relation to other publications.  Unfortunately, Mr Bauduccio seemed to be under the impression that he would be working exclusively as Mr Bauduccio’s assistant not in the role for which he was appointed.  He felt that they had a reasonable business like relationship but not friends.  He said that Mr Bauduccio had his way of doing things and would not accept criticism or suggestions.  He said that, after Mr Bauduccio left, he found an easier way to complete the work and, as the only one left to do both jobs he was able to cope.  Mr Harvey said that Mr Bauduccio was frequently loud and critical of others, there was regular tension and he was not liked by others.  In relation to the Dymo incident, Mr Harvey said that while Mr Bauduccio was yelling and shouting, Ms Donato did not raise her voice and was not aggressive or confrontational.  He said that Mr Bauduccio disconnected the machine and pushed it aggressively across the desk to Ms Donato. 

19.     Mr E Turley gave evidence that he attended the meetings of Mr Bauduccio and Wing Commander Lewkowski in November 2006 and February 2007.  He made notes of the meetings immediately after.  He said that at the November meeting Mr Bauduccio was emotional and said that, although he liked his job, he wanted to feel valued and supported with his opinions being sought and accepted.  Initially he said that he wished to leave but, after discussion, agreed to think about it overnight.  The next day Mr Bauduccio agreed to stay, put concerns behind him and, as the Wing Commander had discussed the position with supervisors, all would seek to be professional and respectful.  At the February meeting, Mr Bauduccio was upset that his car loan agreement had not been signed and that he was told that a return to work situation would have to be managed from Bourke Street and all questions would have to be directed to his case officer.  Mr Turley said that Mr Bauduccio rose from his chair and swore obscenely at the Wing Commander.  He became aggressive and approached the Wing Commander who drew back.  Mr Turley said that he obstructed Mr Bauduccio with his arm from what appeared to be an imminent striking approach.  Again he sought to block Mr Bauduccio as he was convinced that Mr Bauduccio was trying to get to the Wing Commander and looking for an object to use as a weapon.  Ultimately Mr Bauduccio left the room with an obscene gesture and comment.  Mr Turley said that he followed Mr Bauduccio to his desk where he said I still wish I’d done it; still it felt good to scare him. 

20.     Wing Commander Lewkowski gave evidence by telephone from Canberra.  He said that he had read the notes of the meetings in November 2006 and February 2007 prepared by Mr Turley and believed them to be a reasonable summary.  The Wing Commander believed that considerable effort had been put in to ensure Mr Bauduccio had a fair go, particularly on his return from Point Cook.  In December 2006, the Wing Commander prepared a Request for Investigation of the conduct of Mr Bauduccio.  In this request he noted work inaccuracies becoming more pronounced, not responding to performance feedback, personality clash incidents involving Mr Bauduccio not taking criticism or advice, the claim of harassment by Ms Donato where an independent assessment found no case to answer, failure to lodge leave applications, unauthorised absences, open arguments over petty workplace issues, anomalies in timesheets and medical certificates and unauthorised changes to processes, standards and output formats.  The Wing Commander understood that this investigation was stayed when Mr Bauduccio was stood down after the 9 February 2007 incident.  He said that the document relating to the car lease appeared to involve the purchase by the Department of a car for Mr Bauduccio’s wife, be responsible for all outgoings and lease it to him for a peppercorn rent.  After speaking to the Defence Legal Officer he was advised that he was not empowered to sign such a document and should not do so. 

21.     Dr L Walton, a consultant psychiatrist, had examined Mr Bauduccio on 10 August 2005 in relation to his earlier claim, 12 February 2007 and 22 April 2008.  In his report of 15 May 2008, Dr Walton noted that, at interview on 22 April 2008, Mr Bauduccio was the most at ease that I have observed to date.  He found that there was no cognitive deficit and nothing indicative of psychotic disturbance.  Dr Walton noted that there have been multiple contributions to his mood disturbance, diagnosed as adjustment disorder both from work and his domestic situation.  It was said that it would now seem to be fairly well established that it is he who is responsible for such conflict with other workers and supervisors.  Dr Walton said that the fundamental cause of Mr Bauduccio’s problems resides within his personality, that is, his tendencies towards generating conflict with others.  In his oral evidence, Dr Walton said that adjustment disorder was the mildest psychological condition and was generally short lived. 

22.     Mr Bauduccio had been treated by Dr P. Wood a psychiatrist from July 2005.  Dr Wood diagnosed adjustment disorder with depression and anxiety.  In a report dated 17 April 2007, Dr Wood noted that he continued to do well after consultations and a brief period of medication until November 2006 when he started to complain again of persecution.  He was last seen on 7 February 2007 when he was complaining that he had been excluded from privileges that were available to his colleagues. 

23.     Mr Bauduccio was examined by Dr D Shan, a consultant psychiatrist, on 9 May 2007.  Dr Shan’s diagnosis was adjustment disorder with mixed anxiety and depressed mood.  He attributed the condition to personality interactions that have occurred at the work place and that employment had contributed in a significant but transient manner.  Dr Shan noted that his personality factor was a significant contributing factor.  He was of the view that Mr Bauduccio could recover well from this episode but there could be further episodes in the future if he has unexpected personality conflicts with colleagues and superiors. 

24.     It was submitted for the respondent that, based on the evidence of Dr Walton, there was no compensable injury in that it was the normal behaviour of Mr Bauduccio to be aggressive and create conflict and any stressors were the result of his acting within the bounds of his normal functioning.  It was further submitted that there was no incapacity for work, at least from early February 2007 based on him telling Wing Commander Lewkowski on 9 February that he was ready to come back and the opinion of Dr Walton in February 2007.  Finally, it was submitted that, if an injury occurred in the course of employment it was the result of a failure to obtain a benefit in conjunction with his employment. 

25.     Mr Bauduccio clearly regarded the stressors evidenced by him as being caused by others in the work place.  He maintained that he was not seeking any benefit, solely to retain a benefit of being treated politely and the same as everyone else. 

26.     In relation to the question of injury, I am satisfied that Mr Bauduccio’s personality is a significant factor in that the conflict which he attracts does result in a temporary aggravation of adjustment disorder to which he is vulnerable.  As a consequence, I am satisfied that he did suffer an injury during the latter part of 2006 in the course of his employment.  It is difficult to see how the employer could have avoided such injury given the obvious vulnerability resulting from his personality.  However, I am satisfied also that the effect of that injury was transient and, no later than February 2007, there was no ongoing effect or incapacity from the injury. 

27. The more important question is whether that injury is excluded under the definition of injury in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) as being suffered as a result of failure to obtain a benefit in connection with his employment.  On balance and having regard to all of the evidence, I am satisfied that any injury did result from the failure to obtain a benefit.  The Dymo machine incident and the telephone incident both occurred because Mr Bauduccio was not prepared to accept administrative actions which did not allow him exclusive use of the Dymo machine and to unilaterally take back a telephone needed for other purposes.  More significantly the problem arose from a perceived failure to have his opinions sought and accepted, to spend time on his work in excess of that considered reasonable by his supervisors, to perform his tasks in a manner which he considered correct and not necessarily according to the established system and to be treated politely with his own loud outbursts accepted and ignored.  Collectively, I am satisfied that it was not a matter of Mr Bauduccio seeking to be treated the same as everybody else but seeking special benefits for himself not available to others.  As such, the psychological condition of Mr Bauduccio was not an injury within the meaning of the Act. 

28.     It follows that the decision under review should be affirmed. 

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision herein of Mr B H Pascoe,
Senior Member

Signed: …Dianne Eva
  Clerk

Dates of Hearing  11 November 2008
  28 January 2009

29 January 2009

Date of Decision  12 May 2009
Applicant  Self Represented
Solicitor for the Respondent        Mr J Babalis, Australian Government Solicitor
Counsel for the Respondent        Mr J Lenczner