Australian Industry Development Corporation v Boyd
[1990] FCA 96
•21 MARCH 1990
Re: AUSTRALIAN INDUSTRY DEVELOPMENT CORPORATION
And: BEVERLEY JUNE BOYD
No. ACT G47 of 1988
FED No. 96
Workers' Compensation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Workers' Compensation - Commonwealth employees - Employee of Commonwealth authority - Employee suffering from reactive depression - Aggravation of disease due to being informed employment with Commonwealth authority no longer available - Employment subsequently terminated - Right to return to Australian Public Service - Whether employment a contributing factor to aggravation of disease.
Administrative Appeals Tribunal Act 1975 (Cth), s.44(1) Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss.5(11), 7(6), 27, 29, 31(4), 46
Australian Industry Development Corporation Act 1970 (Cth), s.35
Officers' Rights Declaration Act 1928 (Cth), s.6
HEARING
CANBERRA
#DATE 21:3:1990
Counsel for the applicant : Mr H.D. Sperling, QC
and Mr D.G. Nock
Solicitors for the applicant : Mallesons Stephen Jaques
Counsel for the respondent : Mr K.J. Crispin, QC
and Mr R.L. Crowe
Solicitors for the respondent : Pamela Coward & Associates
ORDER
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal
be set aside.
3. The determination made on 17 September 1987 by a
delegate of the Commissioner for Employees' Compensation be affirmed.
4. The respondent pay the applicant's costs of the
appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Australian Industry Development Corporation ("the Corporation"), has applied to this Court by way of appeal pursuant to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision made on 13 September 1988 by the Administrative Appeals Tribunal ("the Tribunal") constituted by a Senior Member. The Tribunal had before it an application by Beverley June Boyd ("the respondent") to review a determination made under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) on 17 September 1987 by a delegate of the Commissioner for Employees' Compensation ("the Commissioner"). By that determination the delegate rejected a claim for compensation made by the respondent against the Corporation. The Tribunal set aside the determination made on 17 September 1987 and remitted the matter to the Commissioner for reconsideration in accordance with directions to the following effect:
(a) the respondent suffered an aggravation of stress-related psychiatric illness, namely reactive depression, to which her employment was a contributing factor and is partially incapacitated thereby;
(b) the respondent is entitled to be paid compensation by the Corporation for partial incapacity in a sum to be determined in accordance with the Tribunal's reasons for decision;
(c) the respondent is entitled to be paid compensation by the Corporation for her medical expenses for treatment of her reactive depression on and from 5 January 1988.
(It may be, having regard to the reasons given by the Tribunal for its decision and the significance which it placed on the events which occurred on 5 January 1987 that that date was intended rather than 5 January 1988.) The Tribunal further decided that the respondent was entitled to her costs at three-quarters of the Supreme Court scale.
Although the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") was repealed with effect from 1 December 1988 (see Commonwealth Employees' Rehabilitation and Compensation Act 1988, s.139 and Commonwealth of Australia Gazette No.S196 of 1988), it is by reference to the provisions of the repealed Act that this application is to be determined.
Section 29 of the repealed Act, so far as material, provided:
"(1) Where -
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect.
(2) If -
....
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -
(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g) .... the date of commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
(3) ...."
Section 29 was to be read with s.27 which provided, so far as material, that, if personal injury arising out of the employment of an employee by the Commonwealth was caused to the employee, the Commonwealth was, subject to the Act, liable to pay compensation in respect of that injury in accordance with the Act. It is common ground that, for the purposes of the application of the Act in relation to the respondent, the references in the above provisions to the Commonwealth were, by reason of the operation of sub-s.7(6) of the Act, to be read as references to the Corporation.
Reference should also be made to sub-ss.5(11) and 31(4) and s.46 of the Act. Sub-section 5(11) provided, inter alia, that, for the purposes of the Act, the incapacity of an employee was to be taken to have resulted from a disease contracted by the employee or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the disease or the aggravation, acceleration or recurrence, as the case might be, contributed to the incapacity. Sub-section 31(4), so far as material, provided that an incapacity for work was to be taken for the purposes of the Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence of a disease if, but for that disease, or that aggravation, acceleration or recurrence, as the case might be, the incapacity would not have occurred, the incapacity would have commenced at a significantly later time or the extent of the incapacity would have been significantly less. Section 46 provided that compensation was payable in accordance with the Act where an injury to an employee resulted in the employee being partially incapacitated for work.
The relevant claim for compensation is dated 30 January 1987. By that claim, the respondent sought compensation in respect of "stress-related illnesses" the symptoms of which, according to the claim, first became apparent in 1979 while she was performing the normal duties of the position of Executive Assistant which she occupied in the course of her employment by the Corporation. The claim did not specify during what period or periods, or from what date or dates, the respondent was incapacitated for work.
The claim, as so framed, was refused by the delegate of the Commissioner. On the review by the Tribunal of the determination made by the delegate, the respondent claimed that the stress of the work while she was carrying out the duties of Executive Assistant with the Corporation caused her to suffer reactive depression. That claim was rejected by the Tribunal, the Tribunal stating that the respondent's work style "may be described more as causing stress to others than stressful to herself although it probably also indicates some instability in the (respondent) herself". The Tribunal's reasons for decision continue:
"On all the evidence it seems to me on the balance of probabilities that the (respondent's) work as Executive Assistant with the
(Corporation) did not contribute to the causation, aggravation or acceleration of the reactive depression. Even if that finding was otherwise, that work (sic) resulted in no incapacity to work."
The respondent does not dispute the findings there recorded.
The Tribunal went on to consider whether the circumstances in which the respondent was removed from the position of Executive Assistant and the circumstances in which she was informed that her employment with the Corporation was terminated contributed to the aggravation of the reactive depression from which she suffered. The Tribunal answered that question in the affirmative, and found that the respondent was thereby partially incapacitated for work. The determination which is now challenged by the Corporation was then made.
Before proceeding further, it is convenient to refer to the factual background giving rise to the issue before the Court. The respondent gave evidence before the Tribunal as to that factual background and, although there is no express statement to that effect in the reasons given for its decision, the Tribunal appears to have accepted her evidence except in so far as it conflicted with that given by two employees of the Corporation, Margaret Mary Doyle and David George Anderson, as to the manner in which the respondent conducted herself in performing the duties of the position of Executive Assistant during the period that John Robert Thomas held the office of Chief Executive of the Corporation.
In 1957 the respondent, who was born on 8 June 1941, joined the Commonwealth Public Service as a typist after completing a six months' training course. After approximately two years she was promoted to a position of stenographer. After a further period of approximately two years she became secretary to the Director of Social Services, in Melbourne. She also worked for a time for the Director-General of Social Services in that City. She was later promoted as typist in charge and after approximately twelve months in that position she became a stenographer in the office of the Minister of State for Social Services. In 1966 or 1967 she became assistant private secretary to the Minister and in 1969 or 1970 she became private secretary to the Minister of State for Repatriation.
Following the establishment of the Corporation by the Australian Industry Development Corporation Act 1970 (Cth), the respondent became, as from 11 February 1971, the Personal Secretary to the Executive Chairman of the Corporation, Sir Alan Westerman. The terms and conditions of her appointment included a provision for the termination of her service on one month's notice. As a person who was, immediately before her appointment an officer of the Commonwealth Public Service, the respondent was a person to whom the Officers' Rights Declaration Act 1928 (Cth) (incorrectly referred to by the Tribunal as the Officers' Rights Protection Act and abbreviated as "the ORP Act") applied (see Australian Industry Development Corporation Act, s.35 and, after its amendment by the Statute Law Revision Act 1973 (Cth), the schedule to the Officers' Rights Declaration Act). Section 6 of the Officers' Rights Declaration Act as in force at the date of her appointment provided:
"(1.) An officer who is employed as, or as a member of, or by, a Commonwealth authority at or after the commencement of this Act shall, during his employment, be deemed to be an unattached officer of the Public Service of the Commonwealth.
(2.) Subject to this Act, an unattached officer shall, during the period of his employment, preserve rights in respect of the matters mentioned in paragraphs
(a), (b), (c), (d) and (e) of sub-section (1.) of the last preceding section, and the period of his employment shall, for all purposes, be included as part of his period of service as an officer of the Public Service of the Commonwealth.
(3.) Upon the termination of his employment an unattached officer who has not been dismissed for misconduct or who has not attained the maximum age for retirement fixed by the Commonwealth Public Service Act 1922-1924, shall be entitled to be appointed by the Public Service Board to an office in the Public Service of such status and salary as are determined by the Board, having regard to the office in the Public Service previously vacated by the officer and the period of his employment."
The matters mentioned in pars (a), (b), (c), (d) and (e) of sub-s.5(1) of the Act as it stood in 1971 were the following: leave on the ground of illness, long service leave or pay in lieu thereof, superannuation, child endowment and, in the case of female officers, payment on marriage. Sections 5 and 6 of the Act were subsequently amended but it is unnecessary for present purposes to refer to those amendments.
The Officers' Rights Declaration Act was subsequently repealed (see Public Service Amendment Act 1978 (Cth) s.44(1)). It is common ground that, notwithstanding its repeal, the Officers' Rights Declaration Act continued to apply to and in relation to the respondent (see ibid., s.44(2) and Public Service Acts Amendment Act 1982 (Cth), s.64 inserting s.87TA in Division 4 of Part IV of the Public Service Act 1922 (Cth)).
Mr Thomas became Chief Executive of the Corporation in 1977 and from that time the respondent worked to him in a position of Executive Assistant. She continued to be employed in that capacity until Mr Thomas retired from the Corporation on or about 11 December 1986.
In her evidence, the respondent described Mr Thomas as "a man of very, very pedantic nature and a very demanding man". She said that her workload increased from what it had been under the Executive Chairman and that her work became very difficult and stressful. She was working long hours and she regarded it as being "a very emotionally draining and difficult time".
During the period from 1972 to 1977 the respondent was treated for a number of minor ailments by Dr Geoffrey Davis, a general practitioner. Early in 1978 she began to suffer gynaecological problems for which she was referred by Dr Davis to Dr J. McCracken, a consultant gynaecologist. She also attended Dr A. Hosking, also a consultant gynaecologist.
Towards the end of 1979 the location of the Corporation's office was changed and the move involved the respondent, so she said, in additional work. Her health deteriorated and she developed a rash on her hands which, she said, she had not had since before she began to work for the Corporation. She considered she could not cope with her work and tendered her resignation to Mr Thomas. After some discussion, she withdrew her resignation and proceeded on three months' leave from January to March 1980. She did this, she said, because she realised that at that time she was not capable, because of the state of her health, of making a decision that was going to affect her future.
From June 1980 onwards she was provided with an assistant to ease her workload. Asked how her health was during the period from October 1980 to April 1984 she said:
"I think I was on hold. I did not get any worse. I did not get any better but I managed to cope with most of the work that I had to do with Myra's assistance. And despite the growth of the Corporation we still managed to cope."
The reference to Myra was to Miss Myra Ruth Chambers who worked as the respondent's assistant from October 1980 to May 1984.
It appears that in May 1981 the respondent was referred by Dr Davis to Dr W. Coupland, a consultant physician, regarding symptoms of lassitude and irritability.
On 6 October 1983 and on a number of occasions thereafter the respondent consulted Dr Jacob Tech Hein Foo, a general practitioner. In March 1984 she complained of lack of concentration and memory lapses which she attributed to stress at work. On 16 July 1984 she reported to Dr Foo that she had had an episode of feeling unable to cope and of being emotionally distressed following an assault on her by three teenage children. The doctor, however, was unable to find any physical symptoms and referred her to a psychologist, Dr Sutton.
After Miss Chambers transferred to the Corporation's office in Adelaide in May 1984, a number of persons worked as assistant to the respondent for periods ranging from 2 to 12 months. For one reason or another the respondent did not regard any of them as satisfactory. She continued, she said, to have a heavy workload and to work long hours.
In late 1985 the respondent contemplated resigning and undertaking a course in therapeutic massage. She remained with the Corporation, however, after Mr Thomas requested that she continue working for him until he left the Corporation, his expectation then being that he would do so in May or June 1986. The respondent agreed in evidence that she may have said at the time that she might leave the Corporation when Mr Thomas left. The Tribunal, while accepting the evidence of Miss Doyle that the respondent had discussed with her well before Mr Thomas' retirement the possibility that she, the respondent, would retire to the Wauchope area where her parents lived, found that there was no evidence of an actual commitment by the respondent to retiring before being told on 5 January 1987 that she no longer had employment with the Corporation.
During 1986 the respondent had a number of health problems, including a back problem and allergic reactions to certain foods. She developed what she referred to as "a really ugly red rash" on her abdomen, arms and legs. She said she was aware that Mr Thomas would be leaving the Corporation and that a replacement for him was being sought. The date of his departure, however, was deferred from time to time. Mr Thomas was endeavouring to complete a number of projects and it was, she said, a very trying time as "everything was up in the air". She considered that the impending retirement of Mr Thomas resulted in increased pressure on her. She was aware that she would not necessarily be kept on as Executive Assistant by Mr Thomas' successor, the position of Executive Assistant being a personal appointment by the Chief Executive. She was also aware that she had a right to return to the Public Service.
In July 1986, she considered she needed a break. She informed Mr Thomas that she was physically and mentally exhausted and that, unless she had some time off, she would not be able to cope. She proceeded on a week's sick leave. After her return to work she continued to have problems with her health and consulted Dr Foo on 19 August, 10 September and 10 October 1986. Those visits concerned a hormonal problem. In November 1986 an incident occurred at work involving a momentary loss of memory and consequent distress. At about this time the respondent was concerned that Mr Thomas had not discussed with her a revised remuneration package and this led, in her words, to "an altercation" with Mr Thomas on the afternoon of 4 December 1986. She had also had a confrontation with another member of the staff on the morning of that day. During the evening of 4 December 1986 she consulted Dr Foo, his notes recording that the visit was in relation to a rash on her hands and other parts of her body. The doctor's clinical notes record that in answer to questions from him, the respondent said she was "under stress at work mainly with 'boss'". The doctor did not consider her unfit for work.
On Friday, 5 December 1986 she attended work but, by arrangement, left early in order to drive to Wauchope to attend her brother's wedding, intending to return to work on the following Monday. She had planned to commence two weeks' recreation leave later in December 1986. She knew that Mr Thomas was to retire towards the end of the following week. Once the date of Mr Thomas' retirement became known at the beginning of October 1986, other employees of the Corporation inquired of the respondent what she was going to do once Mr Thomas had left. The respondent said that she gave flippant responses to those inquiries. She gave the following evidence:
"I had neither the time nor the mental capacity at that time to do anymore than hold that job that I was doing and, as for planning for the future, it was down the track and always I knew I had long-service leave that would get me through any time that I needed to look to the future."
The respondent became ill during the week-end and on Monday, 8 December 1986 she consulted Dr W.G. Hain at Wauchope. He diagnosed bronchitis and certified that she was unfit for work until 13 December 1986. On 15 December 1986 Dr Hain issued a further certificate of unfitness for work until 29 December 1986.
As she was still feeling unwell, the respondent took a few days' recreation leave before returning to work on 5 January 1987. Asked about her health at that time, the respondent said:
"I was still ill. I still had the bad cough. I was just so weak and I could not think straight. I could not remember. I could not transfer dates from one side of the piece of paper to another and I was worried about all the things, the normal things, that had not got done on the job during November. I worried about those while I was away ill. I was just holding together."
While in Wauchope the respondent learned that Mr O'Sullivan had been appointed Chief Executive of the Corporation in succession to Mr Thomas. On her return to the office on 5 January 1987 Mr O'Sullivan informed the respondent that he had appointed another person to the position of Executive Assistant. Asked what was her intention regarding the job before Mr O'Sullivan told her that, the respondent said:
"I really had not had time to think or plan about my future and I just hoped that - I knew I was unwell. I was in no condition to think about changing jobs at that time. I just wanted to quietly work my way out of my illness. I just wanted to be well again and able to cope with things as I had before and I hoped that they would not be as demanding after Mr Thomas."
Mr O'Sullivan informed the respondent that there was no job for her with the Corporation. He offered the use of consultants, at the Corporation's expense, to assist her to find other employment. Her evidence continued:
"Q. And what was your reaction to that offer? A. I said to Mr O'Sullivan that there was no way that I was in any state of health to go looking for another job at that time and that consultants would be of no use to me and that, regardless of circumstances, before I was ready to look for another job I would take a lot of my accumulated leave. I did also say that I wanted the opportunity to clean up the job that I had been doing. Q. And what was his response to that? A. Well, he said he wanted to get the new show on the road very soon and he hoped that I would clean up this work and get it done within a month. And he agreed to that.
Q. All right. And did you continue working? A. Yes, I moved into a small office with the papers and tried to clean them up. Q. And what was the nature of that work compared with the job you had been doing previously?
A. Well, that was just a tidying up job and doing the claims for Mr Thomas's travelling and sort of just culling files and just checking out that all the accounts that should have been paid in the period I was away were and it did not involve much dealing with other people and it did not involve appointments or travel or any of those things. It was second rate. Q. And how was your health during that period, January and February of 1987? A. It was really frightening me how the memory and the way that I was so quick to read and comprehend something had left me. I did not have it any more. I had to read and re-read and I had lost confidence in transferring something from one piece of paper to another."
Having been asked, in cross-examination, questions concerning the sequence of events between 4 December 1986 and 5 January 1987, the respondent was asked whether, when she returned to work on the latter date, she was prepared to continue working in the position of Executive Assistant. The respondent replied:
"I do not believe it is correct to say I was perfectly prepared to - at that point in time, I was still very ill with the bronchitis. I had not really given the matter a great deal of consideration. While I was away ill I was very concerned about the state that I had left that job in. I had wanted to wrap up the things that needed to be done for Mr Thomas and I wanted to have that two weeks leave, when - I did not know that I was going to spend it as ill as I was and I had hoped during that time when all of the pressures were off me, to give some thought to the future, and at that time I had expected I would have known who it was who had that position. I still had a great interest in AIDC."
Asked whether, if Mr O'Sullivan had offered her the job as his personal assistant on the morning of 5 January 1987 when she arrived at work, she would have taken it, the respondent said:
"I believe I would have said I would stay on probably a year to help him settle into that job, but at that time I was not in a condition of health to look for another job."
The respondent said that in January 1987 she was in touch with the Public Service Board inquiring whether her right to return to the Public Service would remain if she took a long period of leave without pay from the Corporation after exhausting her recreation and long service leave. She was given certain information and referred to the Superannuation Board for advice concerning the possible effect upon her superannuation entitlements of her taking a long period of leave without pay. She also made enquiries at the office of the Commissioner for Employees' Compensation. Asked why she wanted leave without pay, the respondent said:
"Because I had no idea at that time what future I had regarding work. I did not know whether my health was going to improve or not and if so, how much it did. I just simply knew that I could not do the kind of work that I had been doing before where I relied on my memory so much when I could not transfer a date from side of a page of paper to the other without checking three times. I wanted to give myself as much time as I could to recover my health, both physically and emotionally. And the one way of doing that was to retain my right of return to the public service. It was something that I had that would be there as a backstop to me while I got my health back in order."
On 12 January 1987 Dr Foo signed a certificate that the respondent had been "under severe stress from work for the last several months" and that she "should be able to cope with a position at work which involves a minimum of stress at the present time". In forwarding that certificate to the Corporation under cover of a letter dated 27 January 1987, the respondent wrote:
"I attach copy of the certificate I obtained from my dr on 12/1/87. I have been attending work each day (with the exception of Tues 21/1/87 which was the day after I had a further mild confrontation with my former boss). I feel I am coping reasonably well with culling the files to pass over to my replacement. Certainly I feel more at peace in my mind that I will be able to have the position in a better state with all the files updated."
On 30 January 1987 the respondent lodged her claim for compensation claiming, as I have said, compensation for "stress-related illnesses" symptoms of which, she said, first became apparent in 1979.
The respondent said she made a request through Mr K.J. Heffernan, the Deputy Chief Executive of the Corporation, that she be allowed to take her recreation leave and her long service leave to be followed, if she were not then well enough to take up a new career or return to the Public Service, by leave without pay for 12 months. She understood this was agreed.
On 11 February 1987 the respondent had a discussion with Mr R.J. Stephens, the Administrative Services Manager of the Corporation. Mr Stephens' note of the discussion contains the following:
"Miss Boyd advised me that she was not in a position to complete her work today but would certainly finish it on Friday. Accordingly she wanted to defer her departure until then. As she was not well at the moment Miss Boyd would be visiting her doctor on Monday (the first available day for an appointment) and would expect then to be given sick leave because of her condition (spreading skin rash). This condition was caused by the stress problem referred to in her claim for compensation. Miss Boyd wished to recover full health before taking either recreation or long service leave and proposed to defer consideration of the option to return to the APS (Australian Public Service) until fully recovered. Miss Boyd regarded the processing of her compensation claim as the first step. She required the Corporation to respond to her claim."
The respondent did not perform any work for the Corporation after 13 February 1987. She said that thereafter her health "went right down". She said she did not feel competent to drive a car and she "could not read or retain anything". She attended on Dr Foo on 17 February 1987 requesting a certificate of unfitness for work. Dr Foo recorded in his notes that the respondent informed him that she was claiming compensation for a stress related condition which she claimed was a result of work. Dr Foo certified that she was suffering from "work related stress" and unfit for duty from 16 February 1987 to 13 March 1987 inclusive. Further certificates were subsequently given and the respondent remained on sick leave until her employment with the Corporation was terminated on 23 October 1987 in circumstances to be mentioned.
By letter dated 10 August 1987 and signed by Mr O'Sullivan, the Corporation informed the respondent as follows:
"When, early this year, we agreed you would finish up at AIDC in February, you asked to remain shown as an employee on unpaid leave for several months, even though you would not be returning to AIDC. This, as I understand it, was to preserve your right of re-entry to the Public Service whilst you considered your future. More than six months have now passed, during the whole of which time you have claimed sick leave payments. I do not wish to debate the justification of claiming sick leave payments after you had ceased effective employment and during a period when you remained an employee on unpaid leave solely at our discretion to assist you in planning your future career. Suffice it to say that the Corporation has always wished to be a helpful and generous employer in staff dealings. But the time has come for the arrangement for unpaid leave to cease, and accordingly AIDC hereby gives you formal notice of termination of your employment, such termination to be effective on 10 September 1987. At that time, we shall arrange to pay you all entitlements owing to you by the Corporation."
The respondent was asked what was her response to receiving the letter dated 10 August 1987. She said:
"Disbelief and a great shock that it was not what I had been assured by the two most senior men in AIDC - it was in contradiction of what they had assured me."
In cross-examination, she said:
"It was extremely upsetting to me after 16 years' employment with someone to receive the kind of letter that they sent me ...."
A further letter, dated 7 September 1987, was sent by the Corporation to the respondent setting out alternative courses open to her and extending the date of termination of her employment with the Corporation by one month to 10 October 1987. The letter discussed whether a return to the Public Service was advisable having regard to the state of her health and suggested, as an alternative, her acceptance of a redundancy package which would involve the termination of her employment with the Corporation and of her right to return to the Public Service. Forwarded with that letter was a copy of a letter dated 25 August 1987 addressed to the Corporation by the Public Service Board outlining "the procedures involved in returning Ms Boyd to the APS". That letter included the following paragraphs:
"Ms Boyd is an officer of the APS covered by the Officers' Rights Declaration Act. In order for her to be appointed to a position in the APS we need a written application from her seeking reappointment. Once we receive her application we can proceed to determine the appropriate classification level for her re-entry. Normally we also require a curriculum vitae and invite the officer to provide any other information he or she considers relevant to determining the classification level. However, given Ms Boyd's current state of health we would be prepared to accept from you a description of the skills and expertise Ms Boyd has acquired and the development of her duties as Executive Assistant whilst employed at the Corporation. If Ms Boyd decides to return to the APS, she should forward her application to us as quickly as possible. This is to overcome the situation where should she return to the APS and we have not determined a classification level, she can only be paid salary at her previous APS classification until such time as a level is determined. In Ms Boyd's case her salary for this period would be at a Typist Grade 1 rate."
On 9 October 1987 the respondent as plaintiff commenced proceedings in the Supreme Court of the Australian Capital Territory against the Corporation as defendant in relation to the termination of her employment. The proceedings were settled on 12 November 1987 on the following terms:
"1. The Injunction dated 9 October 1987 and continued by Order dated 16 October 1987 be dissolved.
2. The plaintiff's Notice of Motion dated 9 October 1987 be dismissed.
3. Declaration that the plaintiff's employment with the defendant was validly and lawfully terminated on 23 October 1987 on the grounds of redundancy and that the plaintiff ceased to be an officer or employee of the defendant on and after that date.
4. Judgment for the plaintiff in the sum of $57,705.76.
5. No interest shall be payable on the judgment sum if paid within seven days of the Order.
6. No order as to costs."
Medical evidence was given on behalf of the respondent by Dr Foo and by Dr Tony Ching Teong Lee, a consultant psychiatrist, and on behalf of the Corporation by two psychiatrists, Dr Robert Edward Shoulder and Dr John Wentworth Shand. The Tribunal expressed itself as finding no significant inconsistency between the evidence of Dr Lee and Dr Shand and as preferring their evidence to that of Dr Shoulder.
After concluding that the respondent's work as Executive Assistant with the Corporation "did not contribute to the causation, aggravation or acceleration of the reactive depression" from which the respondent was suffering, the Tribunal turned to the question whether the circumstances of the respondent's removal from that office was a contributing factor. The Tribunal referred to certain evidence given by Dr Shand in answer to questions put to him by the Tribunal. Having said in that evidence that the respondent was suffering from a psychiatric disorder which did not render her totally incapacitated for work but limited the type of work with which she could cope, Dr Shand was asked the following question:
"Do you think the circumstances of losing her job and being offered to go back to the public service as a very lowly typist would contribute to the factors and to the aggravation of her disease?"
Dr Shand replied that he would have no doubt they were. Without referring specifically to any of the other material before it, the Tribunal expressed a finding that the circumstances of the respondent's removal from the position of Executive Assistant had contributed to her condition.
The Tribunal then posed the question "whether aggravation or acceleration of an underlying mental disease by her removal from office and the manner of it amounts to an aggravation or acceleration within section 29 of the Act". In considering that question, the Tribunal referred to the decision of the High Court in Federal Broom Co. Pty Ltd v. Semlitch (1964) 110 CLR 626, to decisions of this Court in Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173, Commonwealth Banking Corporation v. O'Neill (1987) 75 ALR 154 and on appeal (1988) 9 AAR 170 and Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235, to C.P. Mills "New South Wales Workers' Compensation (2nd ed.) pp 45-6 and to the decision of the Tribunal in Re Zissopoulos and Australian Telecommunications Commission (1987) 14 ALD 489. Referring to the latter decision, the Tribunal said:
"That matter is not on all fours with the facts of this matter since this (respondent's) employment situation has to been seen on the basis that she was an unattached member of the Commonwealth Public Service working for a statutory authority, the (Corporation). It was a characteristic of the conditions of her employment (whether her employment by the AIDC, or her employment by the Public Service) that she might at any time return to the Commonwealth Public Service on terms laid down by Parliament, possibly involving some loss of status and salary. Loss of a job at AIDC as an incident of that employment did not, of itself, incapacitate her from working since, as an unattached officer of the Commonwealth Public Service, she retained a statutory right to continue to work, albeit for another employer, probably at a lower rate of pay."
The Tribunal then referred to the circumstance that, after the hearing had been completed, it had requested the parties to make submissions concerning the implications of the Officers' Rights Declaration Act (or Part IV of the Public Service Act 1922 (Cth) which replaced the earlier Act) and had sought information as to the respondent's entitlement, as at February and September 1987, to sick leave, recreation leave and long service leave. After referring to submissions made by the parties pursuant to its request, the Tribunal referred to Dr Lee's report dated 19 July 1988 and to parts of his oral evidence (to which I shall return) and continued:
"I find that the removal of the (respondent) from her job in January was the trigger changing the (respondent) from a person with a capacity to work to one with a limited capacity to work. It also seems to me that the letter dated 10th August 1987 purporting to terminating (sic) her job while the (respondent) still had a continuing entitlement to sick leave was a further contributing factor. It seems to me that in the context of the ORP Act (sic) and her continuing entitlement to sick and other forms of leave these amount to events or occurrences in the course of employment or some characteristic of the work performed or the conditions in which it was performed to apply Windeyer J.'s test in Semlitch's case. The fact that the characteristic or condition of the employment does not appear to have caused problems with any others similarly so employed does not seem to me to detract from the fact that it is such a characteristic or condition. On that basis that both Semlitch's case and Tzikas' case support the claim for compensation."
Having found that the respondent was entitled to compensation for partial incapacity, the Tribunal again referred to the Officers' Rights Declaration Act and said:
"The incidents precipitating the (respondent's) partial incapacity took place in the course of her employment with the (Corporation). I do not accept the argument that the ORP Act (sic) is no concern of the (Corporation). The Australian Industry Development Corporation Act 1970-1973 is included in the Schedule to the ORP Act (sic) and 'Commonwealth Authority' in that Act is defined as meaning an authority created by an Act specified in the Schedule. Thus the ORP Act
(sic) does apply to the (Corporation) with the consequence that that Act must be taken to be part of the conditions of the (respondent's) employment by the (Corporation). Since the incidents giving rise to the entitlement to compensation took place while she was employed by the (Corporation), her claim relates to her employment by the (Corporation) and the
(Corporation) is liable to pay any compensation resulting. As I understand the terms of settlement the (Corporation) has accepted liability to pay for the very entitlements preserved by the ORP Act (sic)."
The Tribunal then made the decision from which the present appeal is brought.
It is implicit in the decision that the Tribunal gave an affirmative answer to each of the following questions -
(a) Was the respondent suffering from a disease, being a stress-related psychiatric illness referred to as reactive depression?
(b) Did the respondent suffer an aggravation of that disease?
(c) Was there a causal relationship between the events of 5 January 1987 following the respondent's return to work on that day and the aggravation of the disease such that those events "contributed to" the aggravation?
(d) Did it follow that the respondent's employment contributed to the aggravation?
(e) Was the respondent partially incapacitated for work as a result of the aggravation of the disease?
No argument was addressed to the Court on behalf of the Corporation that it was inappropriate for the Tribunal to give an affirmative answer to questions (a) and (b). No separate argument was presented in relation to question (e). It was submitted, however, that there was no material before the Tribunal to support an affirmative answer to questions (c) and (d). In particular, the finding of the Tribunal that "the removal of the (respondent) from her job in January was the trigger changing the (respondent) from a person with a capacity to work to one with a limited capacity to work" was challenged as being a finding that was not open to the Tribunal on the material before it. It was also submitted on behalf of the Corporation that the Tribunal had erred in law in that it determined the respondent's entitlement to compensation on the basis that a temporal connection between the employment of the respondent by the Corporation and the aggravation of the disease was sufficient to satisfy the statutory requirement that the employment be a contributing factor to the aggravation. It was further submitted that the Tribunal was in error in asserting that the decisions in Federal Broom Co. Pty Ltd v. Semlitch (supra) and Australian Telecommunications Commission v. Tzikas (supra) supported the respondent's claim for compensation and had erred in treating the provisions of the Officers' Rights Declaration Act as having relevance to the issue which the Tribunal was called upon to decide.
In relation to the challenge to the Tribunal's answer to question (c), it must be accepted that the case which the present respondent set out to make before the Tribunal, initially at all events, was that she was totally incapacitated as a result of the contraction, or alternatively the aggravation or acceleration, of a reactive depression due to the demands placed upon her since 1979 in carrying out her normal duties as Executive Assistant to Mr Thomas. That was the focus of the respondent's evidence in chief, evidence which was clearly directed to supporting the case that had been put to the delegate of the Commissioner and which the delegate had rejected. In her evidence she attributed her illness, and the incapacity alleged to result from it, to the events which she recounted and which extended over a long period. In recounting those events she referred to the conversation with Mr O'Sullivan on 5 January 1987 but she referred to that conversation as a matter of history only. She placed no emphasis in relation to her state of health upon being told by Mr O'Sullivan that he had appointed another person as his Executive Assistant and that there was no job for her with the Corporation. She did not suggest that her illness or any aggravation or acceleration of it resulted from her reaction to what she was then told by Mr O'Sullivan. The conversation did not even evoke a reaction similar to that, referred to earlier in these reasons, which the respondent said attended the receipt by her from the Corporation of the letter dated 10 August 1987. It was during the cross-examination of the respondent that the question was first raised whether a case might be made for the respondent based on being stressed by the circumstance of being removed from the position of Executive Assistant. That question was raised by the Tribunal itself but, nowithstanding that intervention, no attempt was made by the respondent's counsel to adduce further evidence from her to support such a claim.
It is hardly surprising, given that the respondent was making a different case, that she placed no emphasis in relation to her health on what Mr O'Sullivan told her on that day. Further it is clear from her evidence that she was well aware of the likelihood that Mr Thomas' successor, whoever he might be, would not employ her as his Executive Assistant and that her employment with the Corporation could be terminated on one month's notice. She also was aware that, in that event, she had a right to return to the Public Service at a level of remuneration to be determined by the Public Service Board after considering her qualifications and experience. In this connection it is to be noted that questions were put to her, and to some of the medical winesses, that she would return to the Public Service as a Typist, Grade 1. That that was not her understanding of the position is clear from the following answers given in the course of her cross-examination:
"Q. Did the Public Service Board tell you under what conditions you would be re-employed in the public service? A. They gave me the basis for my re-employment. Q. Yes, what was that? A. That I would need to submit to them a full CV of what I had done in the last 20 or so years and, then based on that, they would determine a level of salary, at which the Department of Veterans Affairs would have me back and I would be able to return to that department. Q. You were told, were you not, by the Public Service Board, that if you returned to the public service you would be initially graded as a Grade 1 Typist because that is where you left the board, is not that right? A. No, that is not correct. They told me I would have to have my position - and I believe they used the word 'determined'. Q. They told you that you would have the right to return immediately as a Grade 1 Typist, that being the grade upon which you were employed and at which time you left the public service about 20 years, did not they, that is what they told you? A. No, they did not tell me that. Q. Well, you were aware that that is the rule relating to returning to public service, that you go back in at the grade you left until you are reassessed, is not that right?
A. No, I was given the information that I needed to give them at least a month and preferably I think two months time for them to reassess me. That was what I was told and there was no way, and it was not suggested to me at that time, that I would return as a grade 1 typist. Q. You say that you were not advised by the Public Service Board that that would be your only direct entitlement under the legislation concerned to return to the public service?
A. I was told that I would have my position determined and in that discussion I do not recall that it was even mentioned what my level had been when I left."
I should add that the respondent's understanding of the position accords, in my opinion, with the relevant statutory provisions.
I turn then to the evidence of Dr Shand and Dr Lee. The only relevant evidence of Dr Shand is the answer which he gave to the question put to him by the Tribunal to which I have already referred. That answer does not, however, support the Tribunal's finding as the question to the doctor was based on the incorrect assumption that the respondent's return to the Public Service would be "as a very lowly typist".
Dr Lee's report dated 19 July 1988 records that the respondent first consulted him, on referral from Dr Foo, on 10 July 1987 for "problems regarding her 'stress symptoms'". The report also records, without further particularity, that the respondent "gave a long drawn-out history about her feelings of distress, anger, resentment with symptoms of anxiety, tension and depression". The report continues:
"Further elaboration of her history revealed a highly conscientious person much dedicated to her work, very competent and hard working. Starting work soon after leaving school at 15, she strived hard and achieved responsible positions in her work.
In 1971 she was employed by Australian Industry Development Corporation and was very pleased by her appointment, its challenges and responsibility. For the first six years there were no difficulties and she worked very well with her senior offices (sic) and colleagues. In 1977 she had a change of her boss and problems began to surface for the first time. She was unable to relate to the person and felt manipulated by pressures put on her, both mentally and physically with excessive work. Over the ensuing years she had on many occasions felt unable to tolerate the emotional stress and turmoil and felt inclined to resign but unable to do so as it was not pragmatic, and she was also dissuaded from doing so by this boss. She felt ambivalence in her relationship with the man with need to please him and yet resenting his manipulation.
Contributing to her difficulties were problems with food allergies, relationship difficulties with a neighbour and some grief problems related to the loss of her boyfriend at that time. As a result of continuing pressures and emotional turmoil, she began to decompensate in her functioning with development of symptoms of forgetfulness, memory gaps, poor concentration, intense anxiety, irritability, depressive feelings and inability to cope. Her sleep was poor and disturbed frequently by intense headaches. She became irrationally fearful and confused, culminating in her stopping work by the beginning of 1987, feeling totally devastated and defeated.
She now feels extremely angry, resentful and depressed that she had lost a job for which she worked so very hard, a position symbolic to her of success and achievement but especially more so because psychologically it was important for her to be good, capable and recognised by others, almost a psychological indictment of her."
Later in the report, Dr Lee said:
"I feel that his person suffers a Reactive Depression stemming from her difficulties in resolving the loss of her professional status which she had striven for many years to achieve. She feels strongly aggrieved by what she perceives as an injustice done to her by others who were unsupportive and who treated her poorly. The emotional turmoil has caused her to have symptoms of anxiety, depression, irritability and other somatic manifestations of her frustrations.
In my opinion the alleged stresses caused by her work environment could possibly have contributed and triggered off the particular mental and physical condition that she now presently suffers. Even though there had been some emotional factors of her life that may have played a role in her present predicament, I feel that the environmental circumstances of heavy work and emotional binds in her workplace influenced the onset of her difficulties. With ongoing psychotherapy, there is some ability to look at her emotional conflicts and patient has reported feeling less agitated or depressed at times. Nonetheless the continuing anger and resentment with the perceived injustice, the very difficult prospect of seeking new directions in life at her age of 47, losing her self respect and indeed removing the symbolic emotional stability which is so necessary for her, all have contributed to her need to seek redress and will continue to be a de-stabilising force for the moment."
The report concludes with the following paragraph:
"Under normal circumstances I feel that this person could possibly function adequately and well. This is shown by her history of excellent work performance and promotions that she had obtained in the past. But under specific types of stress conditions that suggest injustice, non appreciation and exploitation with extreme workloads which she finds hard to refuse, a process of disintegration can set in to allow borderline features and even 'paranoid' feelings to surface. The resultant emotional change would be anger and resentment, irritability, depression, anxiety, physical symptoms of stress with inability to cope."
In his evidence in chief Dr Lee was not asked any questions concerning the significance in relation to the respondent's psychiatric condition of the events of 5 January 1987 though he was asked such questions in relation to the possible impact on that condition of Mr Thomas' retirement. However, in cross-examination by counsel for the Corporation, he gave the following evidence:
"Q. Now, is it important in your conclusion as to the work situation as to the precise situation that occurred when the symptoms became manifest, which appears to be some time in February of 1987, when she first saw Dr Foo; is it important what was actually going on at that period of time? A. I think so.
Q. You did not, in your history, get any indication as to the actual time sequence of the way in which retirement or ceasing of work occurred, apart from what is written in your notes, is that right? A. That is right, yes."
I interpolate that the doctor's notes contained the simple statement, not elaborated upon:
"January '87 found herself displaced from the job."
The evidence continued:
"Q. Assume, if you would, that she says that around 4 December she had been working for Mr Thomas, who was the man in question, and that on that day she had had arguments, nor only with him but with another member of the staff - and I will come back to that in a minute - but that she had made arrangements to go on the following day, the Friday, the 5th, to her brother's wedding in Wauchope and that she had gone to work on the 5th and then driven to Wauchope. By the time she got to Wauchope she was suffering severely from the flu, which she said - it was coming on before she left Canberra and she was suffering severely from the flu. Assume, if you would, that it was her indication that she was taking the weekend off and coming back to work in her normal job on the Monday, the 8th. Assume, if you would, that she saw the local doctor in Wauchope and was given a certificate off work and told to stay in bed with a viral bronchitis infection. She remained off work then until 5 January, either using sick leave from certificates from the doctor in Wauchope re a viral infection, or part of some recreation leave. She returned to work on 5 January. Assume, if you would, that at the time she went to Wauchope on 5th December she was unaware of who was going to be the replacement chief executive, but she knew that, I think on 11 December or certainly while she was away, that that announcement would be made. Given her personality, which you have referred to, the announcement of who was the new chief would be a very important announcement for her, given her emotional situation, is that right?
A. Yes, I would say so. Q. Assume, if you would, that she says at that time, that is, when she had the flu and she got over the flu and she was quite prepared to continue working as the personal assistant to the new chief executive, that she had not made up her mind, she says, although I have given you some earlier information that what she was going to do and on 5 January when she turned up she was prepared to continue working as a Personal Assistant to the new Chief Executive? A. Can I clarify a point here? Q. Yes?
The Tribunal also, in my opinion, misdirected itself as to the relevance and effect of the Officers' Rights Declaration Act in relation to the issue whether the respondent's employment by the Corporation contributed to the aggravation of the disease. The provisions of that statute appear to have loomed large in the Tribunal's consideration of the matter. However, the rights which the respondent retained under that statute, whatever they might be, could not, as the Tribunal appears to have thought, have any possible bearing on the question whether the respondent's employment was a contributing factor so as to satisfy the test in s.29(1) of the Compensation (Commonwealth Government Employees) Act.
For the reasons set out above, I am of opinion that it was not open to the Tribunal, on the material before it, to conclude that the respondent's employment by the Corporation contributed to the aggravation of the disease from which she was suffering. The appeal is, therefore, allowed and the decision of the Tribunal set aside. The determination made on 17 September 1987 by a delegate of the Commissioner for Employees' Compensation is affirmed. The respondent must pay the Corporation's costs of the appeal.
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