Archer and Telstra Corporation Limited
[2007] AATA 1227
•12 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1227
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200400386
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD ARCHER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Dr D Weerasooriya, Member
Date12 April 2007
PlacePerth
Decision The Tribunal affirms the decision under review. .........(Sgd. Ms L R Tovey)..................
Member
CATCHWORDS
COMPENSATON – Commonwealth employees – Definition of disease and injury – Reasonable disciplinary action taken against the employee – failure by the employee to obtain a transfer
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss. 4 (definitions of "ailment", "disease" and "injury"), 14, 108A
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenall (1992) 37 FCR 75
Hart v Comcare (2005) 145 FCR 29
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
12 April 2007 Ms LR Tovey, Member Dr D Weerasooriya, Member 1. This is an application by Mr Richard Archer ("the Applicant") for a review of a decision taken by Telstra Corporation Limited ("Telstra") on 12 October 2004. That decision affirmed an earlier decision of 26 August 2004 which denied Telstra's liability to pay compensation to the Applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act").
ISSUES
2. On 25 June 2004 the Applicant, who was employed by Telstra as a communication faults technician, lodged a claim for compensation for injury that he described as "stress and harassment". That claim was supported by a First Medical Certificate for the period 10-13 June 2004 signed by the Applicant's general practitioner, Dr Tan, on 14 June 2004. The medical assessment was "fidgety, pressure of thought, anger and frustration". Subsequent medical certificates described the Applicant's condition as "anxiety state" and "depression/anxiety". The Applicant remained certified unfit for work until at least September 2004.
3. The Applicant was reviewed by a Consultant Psychologist, Dr Lawrence Terace, on 10 August 2004. In a report to Telstra's insurer dated 22 August 2004 Dr Terace diagnosed the Applicant as suffering from a condition which may be described as either generalised anxiety disorder or panic disorder.
4. The issue before the Tribunal was whether this condition was an "injury" for the purposes of the Act. The effect of ss. 14 and 108A of the Act is that Telstra is relevantly only liable to compensate the Applicant in respect of an "injury" suffered by the Applicant. The term "injury" is defined in s. 4(1) of the Act as follows:
"injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
5. The term "disease" is defined in the same sub-section to mean:
"(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation."
6. The term "ailment" is in turn defined in s. 4(1) of the Act to mean:
"any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)".
7. Although it initially took the point, in the end Telstra did not seriously contest that at the relevant time the Applicant was suffering from an ailment, or the aggravation of an ailment, that was contributed to in a material degree by the Applicant's employment by Telstra. On all of the evidence, we are so satisfied. The real point of dispute between the parties is whether this disease was suffered by the Applicant as a result of reasonable disciplinary action taken against him or the failure of the Applicant to obtain a transfer or benefit in connection with his employment. If an affirmative answer is given to this question then the disease is not an "injury" by reason of the concluding words of the definition of that term, and Telstra is not liable to pay compensation to the Applicant under the Act.
8. In order to rely on the exemption in the concluding words of the definition of "injury" it is not necessary for Telstra to show that one of the prescribed factors was the only, or the predominant, cause of the disease. Rather, it is sufficient to exclude the disease from the definition of "injury" if one or more of the prescribed factors materially contributed towards the disease: Hart v Comcare (2005) 145 FCR 29 at 32-33.
9. Telstra contended that the following factors each materially contributed to the Applicant's disease:
(a)Three verbal warnings which the Applicant was given in the weeks prior to the onset or aggravation of the disease, which is said to be reasonable disciplinary action for the purposes of the exclusionary part of the definition;
(b)A failure by the Applicant to obtain a transfer to a division of Telstra known as the SST working group;
(c)A failure by the Applicant to be excluded from the trial of a new piece of diagnostic equipment, known as the "riserbond", which is said to be a failure to obtain a benefit in connection with his employment by Telstra; and
(d)A failure by the Applicant to accumulate "CC points", which reflect the efficiency with which the Applicant performed his work, which was said to be a failure to obtain a benefit in connection with his employment by Telstra.
10. We do not regard the last two matters to constitute "benefits" in connection with the Applicant's employment with Telstra for the purposes of the definition. Whether or not the Applicant was required to use the riserbond was an aspect of the manner in which he was required to perform his work, from which he received no benefit. It may be that if the Applicant was required to perform his work in a different manner he would have felt subject to less pressure and stress. However, it does not seem to us that the withdrawal of a requirement to use the riserbond can be a "benefit" within the meaning of the definition for that reason. If any the reduction in pressure or stress associated with the removal of any aspect of the employment which an applicant did not like was seen to be a benefit, there would be few cases of psychological injury materially caused by employment which would fall within the definition of injury in the Act. We do not think that this can have been intended. Nor does the accumulation of "CC points" appear to have resulted in any direct or indirect benefit to the Applicant other than the reduction in pressure and stress resulting from a failure to attain the standard which the Applicant would have liked.
11. We do not regard the approach we have taken as inconsistent with the decision of Heerey J in Trewin v Comcare (1998) 84 FCR 171 at 176-8. It is true that Heerey J referred to a benefit as "anything that is good for a person or thing". However, the point of his Honour's discussion was to find that the term "benefit" was not restricted to something which is a matter of charity or gratuity, but extended to something to which the employee in that case was entitled. The benefit with which the Court was concerned in Trewin was permanency in employment. We do not regard the decision in Trewin as addressing the situation now before us.
12. However, we do regard the first two matters identified by Telstra as falling within the exclusionary part of the definition of "injury". Those matters, if made out, would exclude the Applicant's disease from that definition. Therefore, we regard the critical remaining issues falling for our determination as follows:
(a)Was the Applicant subject to reasonable disciplinary action;
(b)Did the Applicant fail to obtain a transfer to Telstra's SST working group; and
(c)If the answer to either question is "yes", did the reasonable disciplinary action or failure to obtain a transfer materially contribute to the Applicant's disease?
CONSIDERATION OF THE ISSUES
Reasonable Disciplinary Action
13. It is not in dispute that Telstra has established a hierarchy of disciplinary action, being a verbal warning, a written warning, a final written warning and, ultimately, dismissal. This hierarchy of disciplinary action is described in a document called Performance Improvement and Conduct Management ("PICM"), which is published on Telstra's intranet.
14. It is also not in dispute that the Applicant received three verbal warnings from his immediate supervisor, Jon Berner. Mr Berner was the Applicant's team leader. Two of the verbal warnings were given on Thursday 20 May 2004, and the third was given on Friday 4 June 2004.
15. The evidence of Mr Berner as to the first of these warnings was in substance as follows. On 19 May 2004 Mr Berner received a telephone call from the Applicant during which the Applicant told Mr Berner that another Telstra employee, Mr Andy Lawrence, had done a "ride on" with him and had noticed that one of the Applicant's test sets wasn't working properly. The reference to a "ride on" was to a supervisor or other person travelling with the Applicant and observing the manner in which the Applicant performed his work. The Applicant said to Mr Berner that he had told Mr Lawrence that he had reported the fault to Mr Berner, but that Mr Berner had done nothing about it. Mr Berner asked the Applicant when he had reported the fault to Mr Berner. The Applicant responded that he had not reported the fault to Mr Berner. When asked by Mr Berner why he had told Mr Lawrence that the fault had been reported, the Applicant had responded "I was nervous".
16. Mr Berner subsequently spoke to Mr Lawrence, who confirmed the Applicant's account of the conversation about the testing equipment during the ride on. Mr Berner subsequently determined that he would give the Applicant a verbal warning for lying to his supervisor. He regarded the conduct as contrary to the requirement in Telstra's Code of Conduct that employees act with honesty and integrity. That Code indicates that a breach of the Code may lead to an employee being disciplined in accordance with the PICM process.
17. On the following day, Friday 20 May 2004, Mr Berner drove to a location where he had ascertained the Applicant would be attending to a reported fault, for the purpose of delivering a verbal warning in relation to the incident involving Mr Lawrence. Mr Berner arrived at that location prior to the Applicant, and waited in his car which he parked down the street from the premises concerned. Mr Berner then took a telephone call, during which time the Applicant arrived, parked his van in the street, exited with a frame and toolbox and opened up and began working on a telecommunications pit.
18. Mr Berner's observation was that the Applicant did not test for gas in the pit prior to opening it up and commencing work. Testing for gas before entering the network was a mandatory safety requirement, and the Applicant had an instrument, called a "crowcon", for this purpose. Gas testing was an important safety requirement and one of the "golden rules" by which Telstra's employees were required to operate.
19. When Mr Berner completed his telephone call, he "coasted" down in his car to the driveway of the premises where the Applicant was working. When the Applicant saw Mr Berner, the Applicant got up and went straight to his van and brought the crowcon, which was running, out of the van and set it down by the side of the vehicle.
20. The Applicant then said to Mr Berner "I didn’t even see you", to which Mr Berner replied "Well you see me now". Mr Berner said to the Applicant that he was giving the Applicant a verbal warning for having entered the network without testing for gas. Mr Berner then spoke to the Applicant about his ride on the day before with Mr Lawrence, where the Applicant said he reported a faulty test set to Mr Berner but Mr Berner had done nothing about it. Mr Berner told the Applicant he was giving the Applicant a verbal warning for lying to Mr Lawrence when he knew he had never told Mr Berner about the fault.
21. Before us the Applicant accepted that the two verbal warnings had been given. He accepted that the testing equipment which Mr Lawrence had seen was faulty and that he had said to Mr Lawrence that he had reported the fault to Mr Berner who had done nothing about it. He also accepted that he had entered the network without testing for gas, and was aware that this was in breach of Telstra's safety requirements and that the requirement of testing for gas was one of Telstra's "golden rules".
22. In other respects, the Applicant's evidence before this Tribunal was far from satisfactory. We found much of the Applicant's evidence to have been argumentative and self-contradictory in many respects. For example, the Applicant at first asserted that he thought, when he spoke to Mr Lawrence, that he had spoken to Mr Berner in the previous day or so but now accepted that he was mistaken about this. Subsequently, in cross-examination, the Applicant accepted that he had lied to Mr Lawrence, and lied to us about having lied to Mr Lawrence. The Applicant later seemed to resile from this position when answering our questions. In the end the Applicant's counsel accepted that the evidence of the Applicant had to be looked at with some suspicion. We do not regard the Applicant as a reliable witness, and in general would not accept his evidence in the absence of some corroborating evidence.
23. By contrast, we did find Mr Berner to be a truthful and credible witness, who answered questions in a straightforward manner and whose evidence reflected his recollection of the facts. Generally, that recollection was supported by notes, which Mr Berner had made at or about the time the events occurred, produced in evidence before us.
24. For the above reasons, we find the facts to be as described in the account of Mr Berner's evidence given above.
25. We find that the giving of these two verbal warnings was disciplinary action for the purposes of the definition of "injury" in the Act. The meaning of the phrase "disciplinary action" in this context was considered by Cooper J in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenall (1992) 37 FCR 75 at 83, where his Honour said:
"In the context of the definition of "injury" in s 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. Additionally, the action must be directed against a particular employee and does not include an action taken by the Commonwealth as part of the general maintenance of discipline over employees of which the particular employee is but one. Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act.
The nature of the action which may be taken, and which must be lawful, depends upon the nature of the duties and the rules of conduct or behaviour, and, the means provided for by statute or the common law to enforce them. The definition of "injury" in the Act assumes the right of the Commonwealth as an employer to take disciplinary action against an employee. As it is an Act dealing with compensation it does not purport to deal with discipline or disciplinary action. In consequence, the Act leaves unanswered three questions:
1. What discipline or rules of conduct apply to an employee of the Commonwealth?
2. In what circumstances can the Commonwealth as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against an employee?
3. What type of action may the Commonwealth take against an employee if the circumstances giving occasion to the taking of disciplinary action exist?
It is not possible, in my view, to say whether any particular conduct is or is not "disciplinary action" within the meaning of the definition without determining the answers to the three questions posed above, and testing the conduct against the answers obtained to those questions. It follows that the effect to be given to the words is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees."
26. Counsel for Telstra advised us that, unlike the situation in Chenall, Telstra did not at the relevant time have any statutory provisions governing the disciplining of its employees. Telstra relies on the common law right of an employer to direct its employees as to the manner in which they will perform their work, and to give warnings if those instructions are contravened.
27. The instructions given to Telstra's employees included a requirement to act with honesty and integrity, and to test for gas, in terms which contemplate the PICM process being applied if an employee does not adhere to those requirements. That process contemplates verbal warnings being given as the lowest level of disciplinary action. It is open to Telstra, as an employer, to lawfully give verbal warnings to its employees when one of its managers is reasonably of the view that the instruction is not being complied with. In that context the giving of a verbal warning is disciplinary action within the meaning of the Act.
28. We are also of the view that the disciplinary action was reasonable in the context of the facts which we have found above. The Applicant had told Mr Berner that he lied to Mr Lawrence, and had given his explanation for doing so. Mr Berner had confirmed those facts with Mr Lawrence before taking action. The telling of those lies was contrary to Telstra's Code of Conduct and the giving of a verbal warning of the kind contemplated by the PICM was, in our view, a reasonable response to that conduct. The breach of the safety requirement of testing for gas was established by Mr Berner's own observation, and the Applicant was aware of the safety rules and that he was in breach of those rules. The giving of a verbal warning could not be said to be an unreasonable response to the intentional contravention of an important safety requirement.
29. The Applicant submitted that the failure of Mr Berner to adopt some of the steps set out in the PICM meant that the giving of a verbal warning was either not disciplinary action or was not reasonable disciplinary action. We do not agree. Although it gives details of the process which might be followed, we do not regard the PICM as setting out a procedure to be rigidly followed in all cases. In that regard, the PICM is not a statutory instrument, but is merely a policy document describing the way in which Telstra will generally exercise its common law contractual right of control over the manner in which its employees perform their work. The PICM itself recognises that, in dealing with what it refers to as "unacceptable behaviour", a manger has "the flexibility and discretion to apply the managing unacceptable behaviour procedure according to the individual circumstances". Given that only a verbal warning was contemplated, and in all the circumstances as they presented to Mr Berner, the taking of all of the steps set out in the parts of the PICM on which he was cross-examined would not have been practical in the field and would not have had any utility. We are of the view that the approach taken by Mr Berner was reasonable, and was proportional to the conduct of the Applicant as it appeared to Mr Berner.
30. We also find that Mr Berner was doing more than informally admonishing the Applicant. On each occasion Mr Berner said words to the effect "I'm giving you a verbal warning". In the context of Telstra's hierarchy of disciplinary action, which includes verbal warnings, Mr Berner's use of this language was clearly intended to invoke the disciplinary action described in the PICM.
31. Before us there was much debate about whether the Applicant had also attended the pit which he failed to test for gas on 18 or 19 May 2004, which were the days prior to the day he was observed at the pit by Mr Berner. We have not found it possible to make any factual finding in relation to that issue. The Applicant said that he had been to the premises the previous day, and had found the fault to be inside the premises which he was unable to access. If that was the case the Applicant did not give a convincing explanation as to why he went into the pit the following day, when he had already located the fault within the premises on the previous occasion. On the other hand, Telstra did not adduce evidence that the Applicant was not at the pit on 18 or 19 May 2004, and given its record keeping Telstra ought to have been able to have adduced evidence of the jobs assigned to the Applicant in the previous two days. There was evidence that when Mr Berner returned to the pit on 13 March 2006 there was no "pride tag" for the Applicant's attendance on 18 or 19 May 2004, which the Applicant ought to have left in the pit had he been there on either of those dates. That evidence may be explained by the fact that the Applicant was not at the pit on those dates, was there but forgot to leave a pride tag, or was there and left a pride tag which was subsequently removed. An attendance on site by representatives of the parties on 6 April 2006 produced an agreement between counsel and a number of photographs. Ultimately, that site visit was not of substantial assistance in resolving the question of whether or not the Applicant attended the site in the days prior to 20 May 2004.
32. However, even assuming in the Applicant's favour that he had attended the pit on the previous days that attendance would not have excused the Applicant from failing to test for gas on re-entry into the pit on 20 May 2004. Further, the Applicant did not offer the explanation of his previous attendance to Mr Berner when the verbal warning was given. On the assumption that the Applicant did attend the pit the previous day, the verbal warning which Mr Berner gave to the Applicant on 20 May 2004 in relation to testing for gas remained, in our view, reasonable disciplinary action. In those circumstances it is not necessary for us to make any finding as to whether or not the Applicant had in fact attended the pit in the days prior to 20 May 2004.
33. For these reasons, we find that the giving of the first two warnings was reasonable disciplinary action for the purposes of the definition of "injury" in the Act.
34. The third warning followed an external audit conducted on the morning of Friday 4 June 2004, which included a check of premises in Dianella on which the Applicant had worked. That audit noted that the Applicant had failed to cap two pairs that were running out of a joint. That had the potential to introduce water into the joint if the pit filled up with water.
35. Mr Berner's evidence was that he met with the Applicant at Telstra's Balcatta Exchange on 4 June 2004. Mr Berner informed the Applicant of the results of the external audit, and that the Applicant was being given a verbal warning in respect of the failure. The Applicant responded with words to the effect "if that's the way Telstra wants it to be". Mr Berner then explained to the Applicant that quality control had been around for a number of years and that this was a critical failure because of the potential to introduce water into the joint. Mr Berner said that the Applicant was not particularly happy about the warning.
36. Mr Berner also gave evidence that he had been instructed by his supervisor, Mr Tester, that any failure of an external audit should result in at least a verbal warning. This instruction had been given on Mr Berner's return from leave in February 2004, and reflected a change in the policy of which Mr Berner had previously been aware.
37. Before giving the warning, Mr Berner had attended the site and confirmed that the two pair running from the joint had not been capped.
38. Mr Berner had also, in the course of giving the warning, told the Applicant that he, Mr Berner, would probably have missed the two pair himself. Mr Berner's evidence was that he said this because this was the Applicant's third verbal warning in a short period, and he wanted to "lessen the blow a bit".
39. In his evidence before us the Applicant accepted that he had forgotten to put a cap on the two pair. His account of the discussion was consistent with that of Mr Berner.
40. For similar reasons to those we have expressed in relation to the first two warnings, we find that the giving of this third warning was reasonable disciplinary action. We infer from the Applicant's evidence that he was aware that the two pair ought to have been capped and accidentally forgot to do so. The failure to do so was a significant failure, and we regard Mr Berner's response to have been a reasonable one in accordance with the PICM. It is clear from Mr Berner's evidence, which we accept, that this was a formal verbal warning and not merely an informal admonishment of the Applicant.
41. The view we have reached as to the three warnings constituting reasonable disciplinary action is confirmed by the evidence of Mr Ian Hitch, a senior HR advisor engaged by Telstra. He expressed the view that the giving of the three warnings was justified in accordance with the PICM in the circumstances, and indeed regarded a verbal warning as a somewhat lenient outcome.
Failure to Obtain a Transfer
42. Mr Berner's evidence was that on Thursday 3 June 2004, the day prior to the Applicant's third verbal warning, he went with the Applicant on a "ride on". During this time Mr Berner tried to convince the Applicant to use a riserbond which he had been allocated as part of a trial. The riserbond was a piece of diagnostic equipment designed to replace several separate pieces of diagnostic equipment then in use by Telstra technicians. The Applicant's complaint about the riserbond was that it took longer to use and this effected his efficiency, including his tally of "CC points". In saying that he did not want to use the riserbond, the Applicant said that he was "stressed to the max" and was a very highly-strung person.
43. Mr Berner's evidence was that he suggested that the Applicant see a member of the Employee Assistance Program ("EAP") and gave the Applicant a pamphlet on the EAP.
44. During the discussion on 3 June 2004 the Applicant also asked to be transferred to the SST work area, where he felt that the pressure would be less. In that area there was not any fault finding or installation work, and the work was not monitored to the same degree. Mr Berner's evidence was that the Applicant had brought up the idea of a transfer to the SST on a number of occasions.
45. On 9 June 2004 the Applicant had an appointment with a member of the EAP, and booked sick leave at the completion of this appointment. The Applicant then arranged an appointment to see his general practitioner, Dr Tan, on 10 June 2004. Because there was a potential workers' compensation claim involved, Mr Berner attended the clinic with the Applicant. While they were waiting for the doctor to arrive, the Applicant told Mr Berner that all he wanted to do was to get over to the SST area. Mr Berner informed the Applicant that "that ain't going to happen". The Applicant looked sideways at Mr Berner, said "you think so", and looked back down.
46. The Applicant's evidence accepted that he wanted a transfer to the SST, but that it had not happened. He said that he could not recall the details of the discussion with Mr Berner on 10 June 2004, but accepted that Mr Berner may have said that the transfer was not going to happen. Eventually, in cross-examination, the Applicant conceded that the first time the Applicant realised that he was not going to the SST was during his discussion with Mr Berner at Dr Tan's rooms on 10 June 2004.
47. Again, the Tribunal prefers the evidence of Mr Berner to the extent of any inconsistency with that of the Applicant, and finds that the Applicant had sought but not obtained a transfer to the SST working group, and was informed by Mr Berner on 10 June 2004, just prior to seeing Dr Tan, that he was not going to get that transfer.
Causation
48. It is then necessary to consider whether any of the three verbal warnings and failure to obtain a transfer, alone or in combination with each other, materially contributed to the Applicant's disease. We find that the combination of the verbal warnings and the failure to obtain a transfer did materially contribute to the Applicant's disease for the following reasons.
49. Firstly, we regard these events as objectively the most significant events at the Applicant's work in the weeks prior to the diagnosis of the disease. In particular the three verbal warnings were significant, in a context where the Applicant previously had what his counsel described as "17 years of virtually unblemished service", and placed him at risk of more formal disciplinary action for any future infractions. The Applicant was, on his own evidence, very keen to be transferred to the SST and the failure to get that transfer would naturally have been a source of frustration for him.
50. Secondly, the evidence does not establish any other particular incidents at work which objectively were likely to produce pressure or stress in the Applicant. The Applicant gave evidence that he felt continuing pressure from the requirement to use the riserbond, and the reduced efficiency which resulted from that use. However, this was a generalised pressure of work which had been ongoing for some time. Further, the evidence of Mr Berner was that, when he checked the relevant computer records on 26 July 2004, they showed that the Applicant had only used the riserbond on two occasions in the months prior to his diagnosis. That counts against the use of the riserbond being the only source of pressure and stress on the Applicant.
51. Thirdly, the final warning was given only two working days before the Applicant started his sick leave. The third warning was given on Friday 4 June 2004. We find from the Applicant's evidence and the records as to the use of testing equipment that the Applicant worked on Saturday 5 June 2004, but did not work on Sunday 6 June or Monday 7 June 2004. Monday 7 June 2004 was a public holiday. The Applicant worked on Tuesday 8 June 2004, saw the member of the EAP on Wednesday 9 June 2004 and saw Dr Tan on Thursday 10 June 2004. There is no evidence that anything eventful occurred on 5 or 8 June 2004. Mr Berner's indication that the Applicant would not be transferred to the SST working group was given on 10 June 2004. The diagnosis of a work related injury in the first medical certificate was made on 14 June 2004. The proximity of the events to the diagnosis is itself suggestive of a causative relationship between the events and the disease.
52. Fourthly, we do not give any great weight to the Applicant's denial of the significance of these events. In part, that is the result of our finding that the Applicant is not a credible witness. Further, the Applicant denied any appreciation of the significance for his compensation claim of a finding that the warnings and refusal of a transfer materially contributed to his disease. However, it seems likely that in the course of his receiving advice from union officials and his solicitors, referred to in the Applicant's evidence, he would have been made aware of the significance of those factors. His evidence before us as to the factors causing him stress is apt to be tainted by self-interest. Further, quite apart from these factors, the evidence of Dr Terace was that an individual's perception of causative stressors is not a reliable guide. In his evidence, which was not challenged by any other expert evidence, Dr Terace said:
"… when people present in these circumstances they tend to be so anxious about all the issues that they find it difficult to distinguish as to what it is that made them so highly distressed. It's very difficult for people and patients in particular to work out what the chain of causation is. They have a sense of anxiety, a sense of things, a sense of a chain of causation, but they simply feel overwhelmed and aren't able to make that distinction clearly. I think that's one of the reasons why people get confused at interview and can't even elucidate in their own minds what the critical incidents were, and that's one of the reasons why I'm very careful in my reports to state that, as a psychiatrist, I can't determine the facts of the case. …
In other words, when a person presents for such an appointment they themselves are aware that a chain of causation needs to be made for some reason, and often are not always aware what that chain of causation is. But the tendency is to focus on the events in the workplace that a person believes is more relevant to them either emotionally or financially, or sometimes because they know that those events are more likely to be compensible than others."
53. Later in his evidence Dr Terace noted, when questioned as to why he did not ask the Applicant about verbal warnings during their second interview:
"I specifically don't in these circumstances because - - firstly because the issue of the facts really is a legal process, and I think that's very important. But secondly because when time passes it all becomes retrospective bias to the person, because as the passage of time has occurred a person either consciously or unconsciously becomes aware of the relevance of all these things and then changes their mind consciously or unconsciously about what information to present, depending on what's going to be most beneficial to them or what they want to avoid. In other words, memory is notoriously unreliable in the best of cases. It's absolutely terrible in these sorts of cases. It's worse after the passage of time, and it's worst of all when time has passed and it's embroiled in a legal conflict of some kind, because then there are things to avoid and rewards to achieve, and those things specifically affect memory, recall and description. So in my experience it simply has no validity after that sort of time has passed. It's really only approximate and even barely approaches validity in the acute setting when you've seen somebody within 24 hours or in a period of days."
54. Dr Terace's evidence suggests that an objective consideration of the established facts is a more reliable guide to determining causation than the subjective appreciation of the person concerned given in evidence long after the relevant events occurred.
55. Finally, Dr Terace's evidence is that, assuming the facts we have found in relation to the warnings and the refusal of the transfer to be proved, it is more probable that those events did contribute to the Applicant's condition. When asked about the likely effect of the verbal warnings, Dr Terace said:
"Certainly the risk would increase depending on the number of warnings, the type of warnings and the seriousness that was understood those warnings to mean by Mr Archer under those circumstances. So if two or three warnings would pose a greater risk than one warning - - in other words, the risks are cumulative and at least linear such that the risk increases as one proceeds from one to two to three warnings. And secondly, the risk increases substantially if there's a perception of threat, and it may be threat to self-esteem or, even more importantly, a threat to employment and subsequent financial loss. And if that threat exists then the anxiety would be far greater and the risk even more substantial, and I would perceive that in order the risks would be lowest if there was simply one verbal warning, the risk would be highest if there were three verbal warnings and a perceived threat of termination of employment. In other words, the risk increases with the seriousness of the perception of the warnings themselves."
56. When asked about the likely effect of a refusal of a transfer, Dr Terace said:
"Firstly, it suggests that Mr Riddle would have - - I'm sorry; Mr Archer - -
Mr Archer?--- - - would have perceived that his way out of very unpleasant circumstances had been obstructed, and that would certainly raise his anxiety. And secondly, because the decline of such a transfer may have represented - - may have presented other problems to Mr Archer in terms of his available options, which would simply add to the cumulative stresses upon him."
57. In the course of cross examination, Dr Terace noted:
"I think that if it had only been the pressure of work over a sustained period of time then the anxiety symptoms would have been experienced over a longer period of time. In other words, I would have expected him to have expressed and manifested major anxiety symptoms well prior to the receipt of those three written - - three verbal warnings. But my understanding from him was that the anxiety was much more manifest and much more acute and much more abrupt, and whilst he perceived that all this was terribly unpleasant and he perceived emotions over a period of time, that the period in which he built up to a psychiatric condition was acutely related to the time of the receipt of the three warnings themselves. So one can only make a probabilistic inference that it's more likely that, and on the balance of probabilities that the threat from the three warnings by virtue of the very unpleasantness of the criticism, which in itself is a major - - so it's narcissistic injury, and that is a psychiatric term which effectively means that it acutely affects our self-esteem and the way that we look at ourselves. And also it presents a very real threat to employment and subsequent financial loss, and those stresses tend to be much more formative and much more acute than a vague, ongoing cumulative stress of unpleasant work which is unsatisfactory, and being excessive both by quantity and quality. So again, I can't state with any degree of certainty. I can only state that on the balance of probabilities it's more likely than not that three warnings collectively were more significant in provoking the anxiety disorder than the cumulative changes over time."
58. We have already noted that Dr Terace's evidence was not challenged by any other expert medical evidence adduced by the Applicant. This was notwithstanding the fact that the Applicant was given an adjournment to enable him to obtain responsive evidence if he wished to do so. In those circumstances, the Tribunal accepts Dr Terace's evidence, which supports an inference that the three verbal warnings and the failure to obtain a transfer did materially contribute to the Applicant's disease.
59. We do not regard the views expressed in the reports of Dr Tan which formed part of the record before us as a reason for refusing to accept Dr Terace's evidence. Dr Tan is a general practitioner rather than a psychologist and was not called to give evidence before us. Further, it is not apparent from Dr Tan's reports that he was aware of the history of disciplinary action and failure to obtain a transfer which we have found.
60. We do not regard the views expressed by Dr Terace in evidence before us as inconsistent with the reports of Dr Raymond Wu, a Consultant Psychiatrist to whom the Applicant was referred by Dr Tan. In a report dated 28 June 2004, Dr Wu expressed the view that the Applicant was suffering from a "work related stress disorder", which Dr Wu characterised as a "mild to moderate depressive disorder". Dr Wu, who first saw the Applicant on 27 June 2004, was unable in that report to say when the condition started. A subsequent report of 27 August 2004 recommends treatment options, and does not address the causation of the Applicant's condition. While Dr Wu characterised the Applicant's condition as "work related", his reports do not consider which aspect or aspects of the Applicant's employment materially contributed to the Applicant's condition. Nor is it apparent from his reports that Dr Wu was aware of the reasonable disciplinary action or the failure to obtain a transfer to which we have previously referred. Dr Wu did not give evidence before us, so his views as to the significance of those matters are not known.
61. Our finding does not to deny that other factors, such as the general pressure of work, internal predisposition or other events in the Applicant's life were not causative of his condition, even to a greater extent than the reasonable disciplinary action and failure to obtain a transfer. However, the question for the Tribunal is whether the reasonable disciplinary action or the failure to obtain a transfer, alone or in combination with each other, were a cause of the Applicant's ailment, in the sense that it or they materially contributed to the onset or aggravation of that ailment. For the above reasons, we find that the reasonable disciplinary action and the failure to obtain a transfer did, in combination, materially contribute to the onset or aggravation of the Applicant's ailment.
Conclusion
62. We therefore find that the Applicant has suffered a disease but that disease was suffered as a result of reasonable disciplinary action taken against the Applicant by Telstra and the failure of the Applicant to obtain a transfer to Telstra's SST working group. It follows from this conclusion that the disease is not an "injury" for the purposes of the Act, so that compensation in respect of that disease is not payable by Telstra to the Applicant under the Act.
DECISION
63. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Dr D Weerasooriya, Member
Signed: ..................(Sgd. Ms R Riberi)..........................
AssociateDates of Hearing 13-15 March and 28-29 August 2006
Date of Decision 12 April 2007
Counsel for the Applicant Mr J CriddleSolicitor for the Applicant Mr C Prast
Slater & Gordon
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Ms R Waldron-Hartfield
Sparke Helmore
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5
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