Armstrong and Australia Postal Corporation

[2005] AATA 928

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/909

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN ARMSTRONG

Applicant

And AUSTRALIA POSTAL CORPORATION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr G J Maynard, Member

Date26 September 2005

PlaceBrisbane

Decision The decision under review is affirmed.

.................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – Commonwealth employees – whether applicant has a work related injury in issue – adjustment disorder with anxiety – work related stress – applicant unable to establish he suffered from a work related injury that results in death, incapacity for work, or impairment – respondent not liable to pay applicant compensation.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14

Comcare v Mooi (1996) 69 FCR 439; (1996) 137 ALR 690; (1996) 42 ALD 495 (1996) 23 AAR 160

REASONS FOR DECISION

26 September 2005	Senior Member B J McCabe   Dr G J Maynard, Member
introduction

1.      Mr Stephen Armstrong is employed by Australia Post. He is seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an injury that he says arises out of his work. The respondent, Australia Post, says Mr Armstrong does not have an injury within the meaning of the SRC Act – and if he does, the injury is not attributable to the applicant’s work.

2. Much of the evidence led by Mr Armstrong was aimed at establishing that Australia Post was not a good employer, and that its actions led to his current condition. We accept Mr Armstrong holds those views in good faith. It is unnecessary to consider that evidence in detail because we are not satisfied the applicant suffers from an injury or disease within the meaning of the SRC Act. We have explained our reasons below.

the material before the tribunal

3. The Tribunal was provided with the documents furnished by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal was also provided with the following documents:

·     Report of Dr Reddan dated 18 April 2005 (exhibit 2);

·     Report of Mr Stebbins, clinical psycologist dated 17 March 2005 (exhibit 3);

·     Employee leave record dated 2 September 2005 (exhibit 4);

·     Report of Dr Griffin dated 26 April 2005 (exhibit 5);

·     Report of Dr Samios dated 29 Jul 2005 (exhibit 6);

·     Report of Dr Slaughter dated 3 September 2004 (exhibit 7);

·     Report of Dr Slaughter dated 11 September 2004 (exhibit 8);

·     Report of Dr Slaughter dated 5 October 2004 (exhibit 9);

·     Report of Dr Slaughter 20 April 2005 (exhibit 10);

·     Letter of Dr Slaughter dated 11 May 2005 (exhibit 11);

·     Report of Dr Slaughter dated 10 August 2005 (exhibit 12);

·     Bundle of documents under fax cover letter dated 12 May 2005 (exhibit 13);

·     Bundle of documents including undated statement of Mr Brian Edwards (exhibit 14);

·     Letter of Ms Debbie Harris dated 28 June 2004 (exhibit 15);

·     Letter of Mr Doug Whitson dated 12 July 2004 (exhibit 16);

·     Task lists of Duty 265 – Northgate Transport dated 18 May 2004 to 30 June 2004 (exhibit 17);

·     Australia Post Safety Brief dated September 2003 (exhibit 18);

·     Bundle of documents regarding medical appointments (exhibit 19);

·     Additional report of Mr Stebbins, clinical psychologist dated 27 March 2003 (exhibit 20);

·     Letter of Australia Post to Ms Helen Brackenrig dated 14 February 2005 (exhibit 21);

·     Letter of Australia Post to Mr Stephen Armstrong dated 9 March 2005 (exhibit 22);

·     Letter of Australia Post to Ms Heidi Holloway dated 7 April 2005 (exhibit 23);

·     Letter of Australia Post to Ms Heidi Holloway dated 5 May 2005 (exhibit 24);

·     Bundle of email correspondence (exhibit 25);

·     Bundle of documents lodged by the applicant (exhibit 26);

·     Statement of Ingrid King dated 9 September 2005 (exhibit 27);

·     Impact statement of business trial authored by Australia Post managers dated 12 December 2003 (exhibit 28);

·     Northgate Transport Run Review dated 23 June 2004 (exhibit 29); and

·     Article titled ‘Straight Talking’ contained within the Post Journal produced by Australia Post dated May 2005 (exhibit 30).

4.      The Tribunal heard from a number of witnesses called by both parties. These were:

·     Mr Stephen Armstrong;

·     Mr Peter Kelly;

·     Ms Debbie Harris;

·     Dr John Slaughter, psychiatrist;

·     Dr Katrina Samios, psychiatrist;

·     Mr Rob Hinkley;

·     Mr Peter Stebbins, clinical psychologist; and

·     Dr Jill Reddan.

5.      Mr Armstrong called a number of other witnesses whom he wished to examine. These individuals were excused from giving evidence after it became apparent that their evidence was either irrelevant to the issues before the Tribunal, or simply repeated evidence given by other witnesses.

6.      Mr Armstrong represented himself. Mr Clark of counsel represented the respondent.

the factual background to the dispute

7.      The applicant was born on 24 January 1963. His parents both worked for the postal service (formerly known as the Postmaster-General’s department). Prior to 1997, the applicant owned a tip-truck and worked as a sub-contractor. He began working as a driver for Australia Post at its Northgate mail centre in Brisbane in 1997. He was made a permanent employee shortly thereafter.

8.      Mr Armstrong drove vans and trucks for Australia Post.  As part of his work, he would collect mail from various post offices and mail centres and the airport, and from post-boxes located around Brisbane. His duties each day were set out on a duty board. The drivers worked in shifts. The shifts were flexible so that individuals could swap duties amongst themselves.

9.      The applicant said this system worked well. The routes had been devised by experienced drivers over a period of time. The duty boards provided schedules that were achievable and safe. But he says all that changed in 2002 when a new manager arrived.

10.     The applicant says the new manager started changing the routes. He says the system that had previously worked well began to break down.  He says she did not understand how everything was connected. The duty boards did not make sense any more: they provided unrealistic schedules and unworkable routes and did not assign vehicles appropriately.

11.     Mr Armstrong says many of the workers were upset by the changes. He spoke of health and safety issues. Work became stressful. There was talk of strike action. Mr Armstrong took it upon himself to write to the general manager of Australia Post about the concerns. To his surprise, the general manager became involved and invited him to participate as a driver representative on a consultative committee that was struck to oversee a number of reforms that were being put in place. Mr Armstrong agreed to take on the work although he made it clear he had no special training for the role. He did not represent the union.

12.     The consultative committee was immediately confronted with the issues arising out of plans to more efficiently utilise the corporation’s transport fleet. A pilot project was commenced in which many of the routes that were previously managed out of Northgate were transferred to a new hub. The project was reviewed after running for three months; it continued for a further three months.

13.     Mr Armstrong said the “hubbing project” was a nightmare from his point of view. He spoke of operational chaos. He said there were health and safety issues. He was angry that the project appeared to have been designed by outsiders without properly consulting the drivers who knew how things worked. He said management was not listening. Mr Hinkley, the transport operations manager from Australia Post at Northgate, defended the project. He said management did take account of the drivers’ views.

14.     The pilot came to an end after six months. The decision was taken not to proceed with “hubbing” in practice. Management at Northgate resumed control over the old runs. Mr Armstrong said the drivers all assumed that the old routes would be restored, but they were not. Management made changes to the runs. The applicant said the disruption continued.

15.     Mr Armstrong also referred to several incidents that he said gave rise to stress. He was questioned by a mechanic in relation to a door on a van that had fallen off while he was completing a run. Mr Armstrong said he felt he was accused of having an accident. He resented the implication as he was proud of his driving record. He was also offended by a manager who questioned him about a problem collecting some mail. The manager spoke to him in the lunchroom in front of other drivers instead of taking him aside.

16.     The applicant also acknowledged he took leave while he was building his home. He agreed this was a very stressful period.

17.     Mr Armstrong said an incident in June 2004 at Northgate was the last straw. There was confusion over his destination. He said the confusion arose because of the uncertainty engendered by the changes to the duty boards. Mr Hinckley said the applicant simply failed to read his duty board.  In any event, the applicant became distressed and left work. He has not returned.

18.     The applicant says he spends his days preparing for these proceedings. He says he starts work in the morning and finishes at 2am.

the legislation

19. Section 14 of the SRC Act provides that the respondent is liable to pay compensation if an employee suffers an injury that results in death, incapacity for work, or impairment. The expression injury is defined in s 4 to mean:

(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.

20.     The expression disease is also defined in s 4. The definition refers to an employee suffering from an ailment. Drummond J made it clear in Comcare v Mooi (1996) 23 AAR 160 that the use of the word ailment signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones”: at 164. His Honour said a claim should not be rejected simply because the employee’s condition cannot be identified as a recognised medical condition. However, his Honour added (at 164-165) it was:

…essential for…a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.

21.     His Honour said (at 165) an employee might engage in abnormal or unusual behaviour that was still:

“within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances…”.

22.     The Tribunal must be satisfied the applicant suffered an injury within the meaning of the Act, and – if he has suffered an injury – whether that injury is attributable to his employment. As we have already indicated, we have decided the applicant is not able to satisfy the first of these requirements.

does the applicant suffer from an injury within the meaning of the SRC Act?

23.     A number of medical experts provided reports and gave evidence.

24.     The applicant’s treating psychiatrist is Dr John Slaughter. Dr Slaughter is an experienced practitioner. He says the applicant has an adjustment disorder with anxiety (chronic) as a result of the experiences in the workplace. Dr Slaughter notes the applicant has strong obsessional traits, and he experiences stress and anxiety whenever he feels let down in his dealings with other people. Dr Slaughter has prescribed medication to treat the condition.

25.     Dr Katrina Samios also saw the applicant. She says the applicant does not have a diagnosable psychiatric condition. She says he has difficulty managing stress. She declined to express a view as to his underlying personality features. In the course of cross-examination, Mr Armstrong referred to several errors of fact in the history she had taken from him. After the errors were pointed out, the Tribunal asked Dr Samios whether her opinion as to the applicant’s condition changed. She confirmed she remained of the same view.

26.     The respondent called Mr Peter Stebbins to give evidence. Mr Stebbins is a clinical psychologist. He interviewed the applicant and a number of the applicant’s work colleagues. Mr Stebbins also administered a Personality Assessment Inventory (PAI) questionnaire. Mr Stebbins said the PAI was a reliable (although incomplete) tool used to evaluate a patient’s symptoms, general personality functioning, interpersonal behaviour and likely responsiveness to treatment. Mr Stebbins explained the PAI helped the treatment provider to make a more objective and informed assessment of a patient’s condition and needs.

27.     Mr Stebbins concluded the applicant does not suffer from a diagnosable psychiatric condition. He noted there were a number of stressors outside the workplace (eg, the dispute with the builder). He said the applicant would benefit from some counselling in relation to stress management and coping skills.

28.     The respondent also called Dr Jill Reddan. Dr Reddan gave an independent report in which she concluded the applicant does not suffer from a psychiatric condition. Dr Reddan said the applicant does have obsessional personality traits and agreed he would have difficulty coping with change and other stress. Importantly, Dr Reddan explained during her oral evidence that while the applicant’s current behaviour (eg, working on his case late into the night) was unusual and unfortunate, his conduct was not so unusual that it fell outside the broad range of what would be considered “normal” in the circumstances.

29.     The applicant questioned Dr Reddan about a document that had been provided to her when she was asked to examine him. The document is a statement of another individual but there is a suggestion Dr Reddan may have assumed the statement was that of the applicant. Dr Reddan confirmed she was not confused by the document and nothing she learned during the cross-examination changed her opinion as to Mr Armstrong’s condition.

30.     We have considered all of the medical evidence carefully. We prefer the opinion of Dr Reddan in particular. She is an independent expert and it was clear from her oral evidence that she proceeded about her task in a rigorous and fair-minded way. Her conclusions draw support from the results of the PAI conducted by Mr Stebbins. Dr Reddan’s opinions were not affected by a relationship with the client. Dr Slaughter’s evidence may have been affected by unconscious advocacy of his patient’s position.  

31.     We note Dr Reddan’s opinion does not merely confirm the applicant does not have a diagnosable condition. She says his behaviour, while unusual, is not outside the range of what might be considered normal. It follows the applicant cannot meet the test laid down in Mooi.

conclusion

32.     We are not satisfied the applicant has suffered from an injury within the meaning of the SRC Act. The respondent is not liable to pay him any compensation. We will not comment on the validity of the allegations he has made about the management of his workplace; those are not matters for the Tribunal.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G J Maynard, Member.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Dates of Hearing  14 – 16 September 2005
Date of Decision  26 September 2005

The applicant appeared in person.

The respondent was represented by Mr Clark of counsel.