Azary and National Australia Bank Limited
[2014] AATA 222
•16 April 2014
[2014] AATA 222
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4778
Re
Hashem Azary
APPLICANT
And
National Australia Bank Limited
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Dr Couch, MemberDate 16 April 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – COMPENSATION – psychological impairment – whether applicant suffered a psychiatric illness – diagnosis – causation – whether employment contributed to a significant degree – surveillance material – whether reasonable administrative action – whether taken in a reasonable manner – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Safety Rehabilitation and Compensation Act 1988 ss 5A(1), 5A(2), 5B(1), 5B(3), 14
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
REASONS FOR DECISION
Senior Member J Toohey
Dr Couch, MemberBackground
Mr Hashem Azary was born in Iraq and arrived in Australia in 1995. After completing his Higher School Certificate, he worked in a range of jobs and obtained qualifications in real estate sales. In 2006, he became a Licensed Real Estate Agent.
In July 2007, Mr Azary joined the National Australia Bank (the respondent) as a Customer Service Officer. In October 2007, he was promoted to the Sales Team on a higher salary and, between 2007 and 2009, was paid bonuses and received several certificates in recognition of his successful dealings with customers. In March 2009, he was promoted to the Home Loans Division. In January 2010, he took up a position as a banking adviser. In May 2011, he was promoted to a more senior banking adviser position.
Mr Azary claims that, despite meeting his performance targets, his manager subjected him to increasing pressure to meet unrealistic targets, and bullied and intimidated him until, at a meeting on 20 April 2012, he was given an ultimatum: to accept a lower level position, or be subjected to extended “micro-management” with the threat of termination if his results did not improve.
Mr Azary has not worked since that meeting and has been under the care of a psychiatrist for much of the time. On 16 May 2012, he claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for “Acute Anxiety Attacks/Depression”.
The respondent disputes Mr Azary’s claim to suffer from a psychiatric condition and says that, even if he suffers from such condition, his employment did not contribute to it to a significant degree. The respondent contends that, even if his employment contributed significantly to his condition, he has not suffered a compensable injury because it was the result, in whole or in part, of reasonable administrative action taken in a reasonable manner in respect of his employment.
Relevant legislation
6. The respondent will be liable to compensate Mr Azary for an injury that results in incapacity for work: s 14 of the Act.
7. By s 5A(1) of the Act, injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment.
8. By s 5B(1), disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. Significant degree means a degree that is substantially more than material: s 5B(3).
9. By s 5A(1), injury does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. By s 5A(2), reasonable administrative action includes but is not limited to:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employees employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employees employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, classification, transfer or benefit, or to retain the benefit, in connection with his or her employment.
The issues
10. We have to decide:
(i)whether Mr Azary suffers from a psychiatric condition and, if so, what condition does he suffer from;
(ii)if he does suffer from a psychiatric condition, whether his employment contributed to a significant degree to his condition;
(iii)if his employment contributed to a significant degree to his condition, whether his injury was the result of reasonable administrative action taken in a reasonable manner in respect of his employment.
It is agreed that, if Mr Azary suffers from a work-related injury, it is properly characterised as a disease for the purposes of the Act.
The evidence
Written and oral evidence was given by: Mr Azary and his wife, Yasameen Al-Haddad; Wayne Atkinson, Regional Executive Retail Manager and Local Area Manager for the respondent’s Greater Western Sydney market; Fadi Adhami, Mr Azary’s direct supervisor from August 2011; and Vicki Withers, a Customer Advisor who worked with Mr Azary.
We also had oral and written evidence from treating and consultant psychiatrists, reports and clinical notes from other health care professionals, and documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
Mr Azary’s appearance at the hearing
Mr Azary attended the four and a half days of the hearing with his wife. Throughout the hearing, he displayed what some doctors noted in their consultations with him and describe as “regressive behaviour”: walking stooped with his hands clasped in front of him, rocking continually in his seat, avoiding eye contact and speaking in a somewhat child-like voice. Mr Azary gave evidence that his symptoms started within one or two days of his meeting with Mr Adhami on 20 April 2012. He said he was unable to control the rocking and it “never stops”.
Although he clearly found the hearing stressful at times, Mr Azary had no apparent difficulty answering questions, recalling details of events, or responding to matters asked of, or put to him, in evidence. The discrepancy between his physical presentation and his ability to respond to questions was considered significant by a number of medical witnesses whose evidence is considered below. Further, as we discuss below, Mr Azary’s appearance when under surveillance on four occasions was markedly different from his presentation at the hearing.
Events during 2011
Mr Azary’s ambition was to be a Mobile Banker. In January 2010, he took up a position as a Banking Advisor 1 (BA1) at the Auburn branch. After working in several branches, in about February 2011 he was offered a transfer to the Merrylands Branch where there was the prospect of promotion. In March 2011, Ms Jenny Ferguson, then manager of the Merrylands branch, rated his performance “C3”, equivalent to satisfactory, at his mid-year performance review.
In May 2011, Mr Azary was promoted to Banking Advisor 2 (BA2). In that position, he was effectively second in charge at the branch. A Role Purpose Statement for the position describes its purpose as “[a]ssist the branch achieve performance targets by meeting sales and service expectations. This will ensure revenue growth; customer service scores and sales targets are achieved”. A Banking Advisor Scorecard describes performance measures for the position by reference to categories such as percentage weight, measurement and evidence.
Mr Azary gave evidence that he found the position “quite stressful” as he was the only person dealing with home loans, and bonuses depended on his performance.
In June 2011, Mr Alex Nasser was appointed Regional Manager. Around June or July 2011, Ms Ferguson took extended sick leave, apparently on account of Mr Nasser’s management style which Mr Azary says was “aggressive and intimidating”. Ms Withers supported this allegation and said she had complained herself about Mr Nasser’s “managerial style”.
For a time after Ms Ferguson went on leave, several short term replacements filled in for her. Mr Azary says one acting manager had “no clue”, he had to manage everything himself and do Ms Ferguson’s work as well as his own; he felt overwhelmed and stressed, and feared losing his job.
In her evidence, Ms Withers agreed there were several acting store managers after Ms Ferguson went on leave but said everyone, including an experienced manager, helped out. She said there was no more pressure on Mr Azary than anyone else. She said he never presented as under pressure, or anxious or stressed, and he never complained to her about work pressures.
Mr Azary gave evidence that, at his annual performance review around August or September 2011, Mr Nasser rated him 1E or 2E. (Mr Atkinson gave evidence that he was actually rated 1D but nothing turns on this; all are well below the minimum 3C rating required to be “satisfactory”).
Mr Azary was “extremely upset” at the “harsh and unreasonable” rating and asked to have it reviewed. It is not clear exactly when this occurred but nothing turns on this. Mr Atkinson gave evidence that he thought a rating of 1 “a bit tough” and 2 “more reasonable as [Mr Azary] was developing”. He amended it to 2C. According to Mr Atkinson, Mr Azary was “very happy” when Mr Adhami told him the outcome of the review. Mr Azary maintains 2C was “still under what he normally scored” and he was upset and still worried for his job.
Performance measures and Mr Azary’s ratings
At this point, we set out our understanding of the performance measures by which bank officers are rated. Mr Atkinson gave evidence that, while the system overall has remained the same over time, the current rating scales were introduced in about 2010. Officers are rated on five-point numerical and alphabetical scales for “results” and “behaviour”, five being the highest for results and “A” the highest for behaviour. A rating of 3C is the minimum required to be considered satisfactory. Officers are rated at mid-year reviews in March, and annual reviews in September, after moderation by a “round table” of managers across the State.
We also heard evidence from Mr Atkinson and Mr Adhami about Star Sales Incentive (SSI) points which are not themselves a performance measure, and have no relevance to ratings on the five-point scale, but are relevant to performance bonuses. An officer must achieve a minimum 3C rating to be entitled to a performance bonus. The amount of any bonus is calculated on the basis of the number of SSI points an officer has accumulated.
Mr Atkinson and Mr Adhami gave evidence that the ratings system is explained in information on the respondent’s intranet and is available to all staff. Further, the relevant performance measures are described clearly in each officer’s review Banking Advisor Scorecard. We accept this is so.
Mr Azary claims he had been performing well throughout his employment with the respondent and that he “normally scored 3C”. He claims the low scores given by Mr Nasser and, later Mr Adhami, came as a shock. A computer-generated document setting out his performance history indicates otherwise. The document is not easy to read and understand but what is clear is that, while he scored well sometimes, Mr Azary did not perform to the high standard he claims.
Mr Azary’s ratings appear in the document for mid-year and end-of-year performance reviews each year. For the years ending September 2008 and September 2009 he was rated “2 Unsatisfactory” and, at his mid-year review in March 2010, he was rated 2C. For the year ending September 2011, he scored 1C. (It is not clear how this fits with his evidence that Mr Nasser scored him 1D or 1E, or with Mr Atkinson’s revised rating of 2C, which does not appear on this document).
Despite his less than satisfactory ratings in October 2011 and around April 2012, Mr Azary insists that he was performing well, and the only score relevant to his performance was his SSI points which, he says, were always above 100 per cent.
The ratings system is somewhat complex, and Ms Withers gave evidence that she only understood it “to a certain degree”. However, Mr Azary could not plausibly have been under any illusion as to how it worked or that his performance rating depended on his meeting the various targets and not his SSI points. Further evidence about this is considered below.
Mr Adhami appointed branch manager
In August 2011, Mr Nasser left the bank and Mr Adhami, who had come from another bank, took over Ms Ferguson’s position. He gave evidence that, when he joined the branch, Mr Azary was not meeting his targets and had not done so at mid-year reviews in 2010 and 2011. The performance history document shows this was so. In particular, Mr Azary was not meeting targets for home loan applications and “drawdowns”.
Mr Azary says within a short time of starting at the bank, Mr Adhami put him under increasing pressure to meet unachievable targets. He says Mr Adhami bullied and belittled him in front of other staff and customers, and called him names like “Short Black”, “Shorty” and “Little Man”, sometimes up to three times a week, and he interrupted his work to tell him to clean the office or check the mail.
Ms Al-Haddad gave evidence through an interpreter that her husband complained to her about Mr Adhami’s behaviour and said he “screamed and shouted” at him in front of others, and called him “short”, “little” and “dark skinned”. Mr Azary has not claimed that Mr Adhami “screamed and shouted” at him. Ms Al-Haddad’s evidence, and our conclusion that it was not reliable, is outlined in more detail below.
Mr Adhami strongly denies bullying, belittling, or calling Mr Azary names. He thought their relationship “quite good”. Mr Atkinson and Ms Withers say they never heard Mr Adhami address Mr Azary, or anyone, in such manner. Both thought their relationship seemed good; they always appeared friendly and would be seen laughing and regularly had cigarette breaks together. Both spoke well of Mr Adhami as a manager. Asked about bullying, Ms Withers said he was “just not like that”.
Mr Azary maintains that, whatever Mr Adhami thought of their relationship, it was not so. We appreciate that a manager might put on his best face for the Tribunal but Mr Adhami did not appear to us likely to be overbearing or intimidating as Mr Azary claims, and Mr Atkinson impressed us as a manager keen to get the most from his staff and likely to be encouraging and supportive.
Around this time, Mr Azary says, he started having nightmares, headaches and heartburn; he could not concentrate and he started forgetting things. On one occasion he was so stressed he got up and dressed for work in the middle of the night and his wife had to tell him to go back to bed. Ms Al-Haddad supports his claims but there is no evidence, including in clinical notes, that he reported these symptoms at the time to anyone else.
Mr Adhami, Mr Atkinson and Ms Withers all gave evidence that Mr Azary did not appear to them to be under stress, or anxious, at any time. All say they knew nothing of such symptoms until after he left work in April 2012.
October 2011
On 10 October 2011, Mr Adhami met with Mr Azary to discuss “where he was sitting” and what he needed to do to lift his rating to 3C. He says he told Mr Azary he was ranked number 225 (of 226) BA2 staff in New South Wales. They came up with an “action plan” and agreed to have one “documented coaching session and observation” each week as well as “one-to-one catch ups”.
An email from Mr Adhami to Mr Azary confirming their discussion on 10 October 2011 is in evidence. It describes Mr Azary’s performance against various measures, each of which was below target, and describes various activities that it was agreed he would undertake over the next four weeks to achieve a minimum 3C rating. Giving evidence, Mr Azary agreed they discussed most of the activities described in the email but denied discussing them all. He conceded Mr Adhami “maybe” told him he was ranked 225 of BA2s in New South Wales.
Weekly meetings and Activity Planners
“Weekly Activity Planners” for most weeks from 25 November 2011 to 30 March 2012 are in evidence. They record Mr Azary’s results for the week for home loan applications, “drawdowns”, “Sales Per Sales Person” and cross-selling, and outline targets for the coming week. They show that, with few exceptions, Mr Azary failed to meet the agreed targets.
Giving evidence, Mr Azary agreed that Mr Adhami would discuss his outcomes against the targets each week. He agreed he had to write five loan applications each week but he maintained that was not a relevant measure and had “absolutely” nothing to do with his performance. He said Mr Adhami always told him gaining SSI points was most important to his performance rating and never indicated that failure to meet other targets could affect his rating.
We do not accept Mr Adhami told Mr Azary that SSI points were the only relevant target. That would have been contrary to every document which describes relevant performance measures and would make nonsense of the Weekly Activity Planners.
The most important part of Mr Azary’s job concerned home loans. His emails to Mr Atkinson refer to his efforts to meet home loan targets. Ms Al-Haddad gave evidence that he told her the importance of achieving home loan applications and “drawdowns” and that it was his objective to write as many as possible. We do not accept his claim that he did not understand, with the SSI points he had achieved, how he could be judged less than satisfactory.
There can be no question that Mr Azary’s poor performance had been brought to his attention in different ways over many months and previous years. It was the documented subject of his weekly meetings with Mr Adhami. He could not reasonably have been under any misunderstanding that his performance review rested on achieving those targets.
A number of certificates of achievement issued to Mr Azary between 2007 and 2010 are in evidence. One is described as a “Rising Star” certificate; others are for a “Customer Compliment”, “Being genuinely interested in your customer!!!” and “Achieving great results across the board”. In September 2010, he received an Appreciation Award for “being such a valuable asset to our team!”
We have no evidence about when such certificates are usually awarded to employees. They appear to be by way of encouragement as much as recognition. They do not alter our view that Mr Azary cannot plausibly have been in any doubt about what was expected of him as a BA2 officer and where his performance was wanting.
Compliance audits
In November 2011, a Decisions Tools Assurance Review (DTAR), which is a random audit of home loans applications written by bank officers, was conducted. It showed Mr Azary’s compliance with procedures was unsatisfactory. Mr Atkinson conveyed the results to Mr Adhami who discussed them with Mr Azary.
By email dated 2 December 2011, Mr Azary outlined to Mr Adhami his five-point “action plan” for dealing with the deficiencies identified in the audit. An audit in January 2012 showed Mr Azary’s compliance with procedures was satisfactory. A further audit in March 2012 was unsatisfactory.
December 2011
As the Weekly Activity Planners show, by December 2011 there had been no real improvement in Mr Azary’s targets. On 16 December 2011, Mr Adhami and another manager, Mr Alameddine, met with him to discuss how to increase his home loan activity by February 2012.
According to Mr Adhami, Mr Azary was “motivated” during the meeting; he acknowledged he had not had much success with “triggers” and was keen to improve his “pipeline” and overall lending business. Mr Adhami’s note of the meeting shows that Mr Azary proposed certain targets and activities.
Giving evidence, Mr Azary dismissed efforts to support him or improve his performance as irrelevant to his knowledge and experience. He commented that he did not need training on how to say hello to customers and described Mr Alameddine as “another pathetic character”.
January 2012
In late January or early February 2012, Mr Adhami developed another action plan for increasing home lending in the branch. It included sitting with Mr Azary to observe phone calls and provide feedback. It noted a target of five home loan applications per week (identified as the target in previous documents). For Mr Azary it is contended this further increased the pressure on him and was unreasonable. We do not accept that contention. In the absence of any apparent improvement, it was not unreasonable for Mr Adhami to discuss other ways of lifting his performance.
In January 2012, Mr Azary applied for a position of Mobile Banker Associate. At an interview with Mr Atkinson and another manager in late January, Mr Atkinson told him he needed to achieve a personal ranking in the top 10 ten per cent of employees as a successful BA2, to be eligible for the position. According to Mr Atkinson, Mr Azary understood his point of view and did not show any signs of stress during that discussion and he seemed happy with the outcome.
Mr Azary does not deny this discussion took place but he denies, apart from “maybe once, at the end”, that Mr Atkinson ever spoke to him about his unsatisfactory performance or brought to his attention that he was failing to meet his targets.
Loan application by Mr Adhami’s father-in-law
Around January or February 2012, Mr Adhami’s father-in-law applied to refinance his mortgage. It is agreed that Mr Adhami gave Mr Azary certain documents and asked him to prepare the necessary paperwork. The loan went through the bank’s two verification processes and was approved. Subsequently, however, it was found that the application did not include company tax returns which were required because Mr Adhami’s father-in-law was self-employed, with the result that the bank could not “on-sell” the loan. Mr Azary says the credit manager criticised him and said he had made a mistake in processing the application.
Mr Azary claims Mr Adhami “set him up” by withholding important information needed for the loan application and told him to “get on with it” when he said the company tax returns were missing. He claims he felt under intense pressure to have the loan approved and submitted the application hoping the verification team would pick up that information about the company tax returns was missing.
Mr Adhami denies “setting Mr Azary up”. He says he thought it was an opportunity for Mr Azary to write a home loan application. He says he gave Mr Azary his father-in-law’s personal Notices of Assessment; at no time did Mr Azary ask him for the company tax returns and he was not aware they were required. His claim finds support in the fact that the application withstood two verification processes without anyone realising the company tax returns were still required. Further, he says, he had nothing to gain by the application being approved.
We did not find Mr Azary’s evidence about the loan persuasive. We do not accept he told Mr Adhami several times that the company tax returns were missing. Given the history of compliance problems identified by the DTAR audits and his performance generally, we think it more probable that Mr Azary failed to identify the documents needed. We prefer Mr Adhami’s evidence and do not accept that he acted as Mr Azary claims in relation to the loan.
March 2012
Mr Atkinson gave evidence that in the months from about November 2011, Mr Adhami talked to him regularly about Mr Azary’s performance. He knew that Mr Adhami was having “daily follow-ups” with Mr Azary. They provided a mentor for him, and Mr Atkinson and a credit manager gave him additional coaching. They tried to remove as many other tasks as possible so he could focus on home lending but, despite Mr Azary’s genuine efforts, his performance was not improving.
Mr Atkinson says on all occasions Mr Azary was “very thankful” and tried the suggested activities. In emails to Mr Atkinson in March 2012, Mr Azary reported his progress and plans to increase his home loans. The tone of Mr Atkinson’s replies appears encouraging and supportive.
Despite this, it is clear that Mr Atkinson and Mr Adhami doubted that Mr Azary would be able to achieve a satisfactory rating at the mid-year review. Mr Atkinson gave evidence that, by about March 2012, something “serious had to be done” and he discussed with Mr Adhami the options he should put to Mr Azary.
At the time, there was an opportunity for a BA1 position in another branch that Mr Atkinson thought would be suitable for Mr Azary. A BA1 officer does simple home loans and has a target of one “drawdown” per fortnight. Mr Atkinson was to investigate whether it would involve lower pay.
Mr Atkinson gave evidence that he advised Mr Adhami that he should put to Mr Azary the options of taking up a BA1 position or undergoing 13 weeks of performance management (the “final review period” in the performance management framework), longer than the six to eight weeks usually given under the framework. Mr Atkinson gave evidence that the policy can be applied flexibly depending on an employee’s circumstances. For instance, while it indicates that a performance review may be instituted any time an officer’s performance falls below a satisfactory rating, it had not been applied to Mr Azary previously.
Giving evidence, Mr Adhami said he proposed the longer time frame for the final review period to give Mr Azary a better opportunity to improve his performance and he believed Mr Azary could achieve a satisfactory rating. We doubt, given Mr Azary’s performance up till then, that Mr Adhami really believed that but, in the end, nothing turns on this.
Meeting on 20 April 2012
At about 4.30pm on Friday, 20 April 2012, there was a meeting between Mr Adhami and Mr Azary.
Mr Azary says Mr Adhami called him into his office without notice, told him he had been rated 2C on his “Scorecard”, and gave him an ultimatum: to accept a BA1 position or undergo extended “micro-management” with the prospect of termination if his results did not improve.
Giving oral evidence, Mr Adhami said he “definitely” gave Mr Azary notice of the meeting even though it was not a formal requirement to do so. He thought he would have done so by email but he had no record of any notice. In contrast, in his written statement, he said he could not recall whether he gave Mr Azary notice but did not think he did “because it was not a performance meeting; it was to deliver his scorecard” and he was delivering them to everyone.
In the absence of any document showing notice to Mr Azary, and in light of the inconsistency in Mr Adhami’s account, we think it probable he did not give Mr Azary notice of the meeting. As we discuss below, however, given the nature and purpose of the meeting, he was not required to give him notice.
In written evidence, Mr Azary said Mr Adhami told him he was given a 2C rating “as a result of the situation with the loan application for [his] father-in-law and the lack of company tax returns with the application”. Mr Azary did not mention this in oral evidence but said Mr Adhami simply gave him his rating and gave him no feedback about it.
Mr Azary says he told Mr Adhami he had an SSI score of 113% but Mr Adhami dismissed it as “not good enough” and gave him the option to “demote himself” or undergo a three month “micromanagement plan”. When he asked Mr Adhami what would happen if he did not improve after “micromanagement” he said “Mate, termination is on the table”. He concedes Mr Adhami said he would see if management would maintain the same salary if he elected to take the BA1 position. He says the meeting ended abruptly with Mr Adhami telling him the meeting was over and it was time to go home.
Mr Adhami agrees he put those options to Mr Azary but denies doing it in the manner claimed. He strongly denies saying “Mate, termination is on the table” and says he told Mr Azary termination was a last resort and he would do everything he could to help bring his performance up to an acceptable level. He denies ending the meeting abruptly and says he asked Mr Azary if he had any further questions and he said he did not. He agrees the meeting ended around 5pm and Mr Azary was “disappointed” and “not happy”. He agrees he asked Mr Azary to think about the options over the weekend and tell him on Monday what he had decided.
Giving evidence, Mr Azary maintained he had an SSI of 113% in April 2012 and that was the target. If it was not, he said, “they” misrepresented it as the target and made him sick. In cross-examination, he conceded that he knew, from the time Mr Atkinson rated him 2C until the day he left work, that the bank did not think his performance satisfactory. He maintained it was nevertheless a shock to be rated 2C when he had scored 113% on his SSI.
After the meeting on 20 April 2012
Mr Azary gave evidence that he left the meeting shocked, stressed and depressed. Over the weekend, his wife went into labour unexpectedly early and gave birth to their son on Sunday morning. He already had paternity leave approved from mid-May when the baby had been expected.
On Monday 23 April 2012, Mr Azary went to work, expecting to meet with Mr Adhami but he was not there. Mr Adhami gave evidence he was not in the office that day until the afternoon. Mr Azary says he was shocked and further upset that he was not in the office and he felt Mr Adhami was “playing games” with him. He does not suggest they had arranged a time to talk. It does not appear that he inquired about Mr Adhami’s whereabouts. It is not clear what decision, if any, he had made over the weekend.
Mr Azary’s paternity leave was brought forward. He left the office and went home. He has not worked since.
Surveillance evidence
Surveillance of Mr Azary was carried out by Adroit Business Advisers Pty Ltd on behalf of the respondent over seven days in September and October 2013, four days in February 2014 and two days in March 2014. He was filmed for a total of 16 minutes on four days when he was observed at home, or coming and going from his home. The investigator’s report and films are in evidence.
On 15 October 2013, Mr Azary was filmed for a total of four minutes outside a relative’s address in company with another man, whom he identified as his brother, and driving his car away from the address with his brother a passenger. The following day, he was filmed briefly walking to his letterbox and wheeling a rubbish bin inside the fence of his property while carrying his son.
On 18 February 2014, Mr Azary was filmed for a total of four minutes driving his son to day care in the morning. He was filmed picking his son up in the afternoon and shopping at a local shopping centre. On 11 March 2014, he was filmed for a total of nearly seven minutes driving his wife and children to day care, taking his son into the centre, and from there driving his wife and daughter to McDonalds and then to the railway station. They caught the train to the city, returning some hours later when he drove his family to the day care centre and collected their son.
At all times while filmed, Mr Azary’s presentation bore no resemblance to how he presented at the Tribunal hearing: he was clean-shaven and appeared quite neatly dressed; he appeared to move about and walk normally, without any sign of stooping or clasping his hands; and while seated talking with his brother, he showed no sign of rocking behaviour.
Save for Dr Mustapha Alameddine, the DVD was made available to each of the doctors who gave evidence at the hearing. Their evidence is considered below.
Mr Azary’s response to the DVD evidence
Giving evidence, Mr Azary maintained he was unable to control the rocking but “sometimes it stops”. He claimed he was seen seated with his brother without rocking because he had just been driving with his seat belt on which helps stop the rocking. He said he stoops and clasps his hands when he is stressed or anxious.
Contrary to Mr Azary’s claim that he only drives the car in an emergency, he is seen driving his wife and his brother and could not satisfactorily explain what emergency prevented them from driving him on those occasions other than that he had to take his son to child care.
Ms Al-Haddad’s evidence
Ms Al-Haddad provided a written statement and gave oral evidence. She and Mr Azary married in Iraq in October 2010. They knew each other for about six months before they married.
Ms Al-Haddad gave evidence that her husband was “a bit sad” when Ms Ferguson had to go on leave but otherwise he was happy up until 20 April 2012. When he came home that day he was depressed, he would not eat and he had a terrible headache. He told her about the meeting and the options given by Mr Adhami. She did not feel he was very happy when their son was born on the weekend, and on Monday morning he came to see her wearing his bank uniform and said he had to go to work for a meeting with Mr Adhami.
Ms Al-Haddad claims Mr Azary is “totally dependent” on her: she has to help him shower, shave and dress, and has to put his food out for him and encourage him to eat. He has little social interaction and is afraid of open spaces. He only drives under “extreme” circumstances. She says she first noticed him rocking a day or two after the meeting with Mr Adhami. It became worse until, about two weeks later, she urged him to see a doctor after he mentioned suicide.
Ms Al-Haddad was not shown the surveillance DVD but was asked about her husband’s physical presentation and driving. She said he rocks when under pressure but “occasionally” stops when he “takes his medication”. Asked if she could explain why he might be observed sitting without rocking, she said he could have just been driving and the seat belt would have helped. She was asked repeatedly about how often he walks stooped with his hands clasped but she would not say. Asked whether Mr Azary goes out alone, Ms Al-Haddad said sometimes he will take out the bins; if they go out together, he asks to go home after about 15 minutes. She said she can sometimes urge him to stay out for about 45 minutes. She could not recall an occasion when he managed to go out twice on the same day (as he was observed in her company on 18 February 2014).
Ms Al-Haddad maintained she drives if they are together and Mr Azary only drives in an emergency. Despite being pressed, she could not say how often emergencies happened. Asked about the occasions when he was observed driving on the DVD, she could not recall what the emergency was that meant he had to drive. When pressed, she said her daughter had a fever that lasted two days so he drove their son to child care; another time she had a headache and could not drive. Asked about him driving to the train station on 11 March 2014, she said they went to the embassy to complete the children’s citizenship applications. She could not explain why this was an emergency or why she could not drive.
Ms Al-Haddad’s evidence was not convincing. Even allowing for some misunderstanding due to interpretation (which was not evident), her responses were frequently evasive. Her explanations strongly suggested she had discussed the DVD overnight with Mr Azary and tailored her evidence accordingly. We find her evidence unreliable and we reject it.
Consideration
Mr Azary and Ms Al-Haddad’s explanations for the discrepancies between his appearance when observed unawares on the DVD and before the Tribunal were unconvincing and we do not accept them. Moreover, it would be remarkable if, coincident with each random occasion on which he was filmed, he suffered no stress or anxiety, his rocking ceased, he walked normally and an emergency occurred which prevented his wife from driving.
Mr Azary’s presentation to doctors
In December 2012, Mr Azary was injured in a motor vehicle accident for which he has an insurance claim. He has seen several doctors and a physiotherapist for treatment and assessment of his neck, back and shoulder problems. Mr Azary and Ms Al-Haddad maintain he was rocking at each medical appointment and the doctors all asked him about it.
Reports and clinical notes of Dr Mehdat Guirgis, orthopaedic surgeon; Dr Alan Home, Dr Alameddine and Ms Joanne Duggan, a physiotherapist who treated him 19 times, make no reference to Mr Azary’s rocking or other symptoms suggesting a possible psychiatric illness.
The respondent submits it is significant that Mr Azary’s presentation was consistent with a psychiatric illness when he saw his workers compensation doctors but it was not apparent when he saw the motor vehicle accident doctors.
Dr Alameddine has treated Mr Azary for his injuries since the accident. His notes refer to Mr Azary’s psychiatric condition but not to any physical symptoms. He confirmed by telephone that he had observed Mr Azary rocking, nodding, and apparently anxious but it was not clear from his evidence why he did not record these symptoms in his notes. He said he “looks after the whole patient” and agreed he would refer a patient to a psychiatrist where it appeared needed.
In the absence of hearing from any of the others who treated Mr Azary for his physical injuries, we cannot reach any conclusion about whether they observed any symptoms of psychiatric illness and, if not, why not.
Medical treatment and opinions
On 9 May 2012, Mr Azary saw Dr Fitch at the practice he usually attended. He says he was too embarrassed to see his usual doctor, Dr Saddiq, and tell him what had been happening. Dr Fitch referred him to Dr Saddiq. He saw Dr Saddiq two days later and told him he was having visual & auditory hallucinations. Dr Saddiq prescribed Murelax and Zoloft. Dr Saddiq’s clinical notes make no mention of rocking. Since then Mr Azary has been on a range of antipsychotic, antidepressant and mood stabiliser medications including Olanzapine and Lithium.
Dr Tsang
Mr Azary saw Dr Leo Tsang, psychiatrist, weekly during May and June 2012. He observed Mr Azary rocking and noted he complained of auditory hallucinations. He diagnosed Major Depression with Psychotic Features. He arranged for a cerebral CT scan to exclude organic disease (which it did). Dr Tsang thought stresses associated with Mr Azary’s work a major precipitating factor in his illness.
In July 2012, Dr Tsang recorded that Mr Azary agreed to voluntarily admission to the Mental Health Unit Liverpool Hospital for four days in August 2012. He was admitted again for two weeks in October 2012 and underwent four sessions of electroconvulsive therapy (ECT) after which he withdrew consent for further ECT and discharged himself.
Dr Tsang saw Mr Azary again in April and May 2013 when his symptoms of psychosis and condition generally seemed improved. Dr Tsang diagnosed Major Depression in partial remission.
Asked what he made of Mr Azary’s presentation on the DVD, Dr Tsang said his posture was very different from when he saw him, he looked confident and relaxed, and he seemed to have a warm relationship with his son. He had never seen him appear like that during their consultations. He still thought Mr Azary had suffered Major Depression precipitated by Mr Adhami’s adverse assessment.
Dr Tsang thought the DVD showed a “welcome improvement” in Mr Azary. When Mr Azary’s appearance at the hearing was described to him, he thought it possible Mr Azary had experienced an acute relapse due to stress. However, he would not expect his symptoms to vary greatly although they could improve with medication. He could not rule out the possibility that Mr Azary was feigning but he thought it unlikely given he saw several psychiatrists at Liverpool Hospital and underwent ECT.
Contrary to other psychiatrists who do not believe that workplace stressors can trigger a psychotic illness (see below), Dr Tsang said there is clear evidence that they can.
Dr Alhajali
Dr Hecham Alhajali, psychiatrist, has seen Mr Azary on five occasions since August 2013 and is his current treating psychiatrist. He reports that Mr Azary continues to complain of “ongoing and relentless psychotic symptoms including Auditory Hallucinations and Paranoid Delusions”. He diagnoses Mr Azary as suffering from Schizoaffective Disorder, a chronic and severe form of mental illness. He says Mr Azary’s cognitive functioning has declined over the last few years and his mental state remains unstable despite treatment.
Dr Alhajali agreed that none of the behaviours he had observed in Mr Azary were apparent on the DVD but that did not alter his diagnosis or his opinion that his condition was likely related to his employment. He said rocking behaviour of the kind demonstrated by Mr Azary fluctuates and becomes more prominent with anxiety, which could account for his presentation at the Tribunal. He thought situations observed on the DVD, such as being near his home or out with his wife, were probably less stressful and could account for Mr Azary’s different presentation.
Dr Alhajali agreed that profoundly regressive symptoms are not necessarily typical of reactions to workplace stresses but said he saw Mr Azary about a year after events at work when it was possible his condition had become entrenched. He agreed with Dr Tsang that stress can trigger the emergence of serious mental illness, including schizoaffective disorder, in a vulnerable person (that is, a person not constitutionally predisposed to that condition) but said it was unusual. He understood from Mr Azary that the repetitive rocking movement began in 2011, or at least before April 2012, which he agreed influenced his diagnosis and indicated a psychotic component of his illness manifesting prior to April 2012.
Dr Alhajali agreed it would be unusual, if doctors had observed Mr Azary rocking, for them not to record that observation. He thought it would be “quite significant” if Mr Azary was observed rocking only when he saw doctors in relation to his compensation claim and not in relation to the motor vehicle accident. He agreed it would be unusual, but thought it possible, that seeing doctors for his physical injuries caused him less stress and anxiety than seeing doctors for his psychiatric illness. He said he had no evidence that Mr Azary was malingering but agreed that the symptoms he presented with could readily be affected.
Evidence of Drs Champion, Bell and Newlyn before seeing the DVD
Dr David Bell, psychiatrist, assessed Mr Azary in June 2012. He took a history of work stresses for three years. He thought Mr Azary had experienced a gradual onset of psychosis rather than a rapid decompensation due to stress. He thought he had a serious mental illness possibly exacerbated by the effect of his drugs. Mr Azary’s report of auditory hallucinations made him strongly suspect schizophrenia or bipolar disorder, particularly as the history given at the consultation was that the hallucinations began a year prior, before he began taking medication. He doubted his employment contributed at all, much less significantly. He thought the meeting with Mr Adhami was possibly the straw that broke the camel’s back but no more; he thought it had begun well before that.
In July 2013, Dr Thomas Newlyn, psychiatrist, gave the principal diagnosis of major depressive disorder. He did not think Mr Azary had schizophrenia given the age of onset and that he had “intact affective range”. He reported events as recounted by Mr Azary but did not express an opinion as to causation, it seems because he was not asked.
Dr John Champion, psychiatrist, saw Mr Azary in June 2013. He thought Mr Azary’s presentation appeared consistent with a significant psychiatric disorder but inconsistent with the clarity of the history he was able to give spontaneously. He thought Mr Azary’s reported hallucinations were fabricated because, in his opinion, they are not a sign of depressive illness or schizophrenia and were therefore an attempt to simulate mental illness. Further, his report of hearing voices from inside his head was contrary to genuine hallucinations in which voices are heard from outside the head.
Dr Champion made a provisional diagnosis of severe chronic treatment resistant psychotic depressive illness, likely complicated by unwanted side effects of medication. He did not think that sort of illness would be produced by work stresses which, at worst, would produce Adjustment Disorder. He thought the severity of symptoms indicated not work stress but constitutional factors. Given the inconsistencies in his presentation he arranged for Mr Azary to be tested by Dr Thomas O’Neill, a neuropsychologist whose report is outlined below.
In October 2013, Dr Champion reported that the results of Dr O’Neill’s testing “strongly confirmed” his suspicions that Mr Azary was feigning.
Dr O’Neill’s report
Dr O’Neill saw Mr Azary for several hours in August 2013. By agreement between the parties, he was not required to give oral evidence.
Dr O’Neill took a detailed history from Mr Azary and administered a range of psychometric tests. Mr Azary’s scores were low enough to indicate a mild intellectual impairment. Dr O’Neill commented on the “significant discrepancy” between his reported pathology and his presentation and noted “he showed clarity of thought despite his rocking behaviours and complaints of impairments”. On the Structured Interview of Reported Symptoms test, considered the “gold-standard assessment of feigning”, Mr Azary’s overall response indicated “a likelihood of 81.8% of feigning mental disorder”.
Dr O’Neill reported:
On multiple scales measuring feigning of mental disorder, he endorsed a high degree of exaggerated, unusual and extreme symptoms atypical of bona fides clients, but more typical of individuals asked to feign mental disorders in simulation research.
Dr O’Neill thought the meeting on 20 April 2012 did “highly stress” Mr Azary who feared losing his job or other consequence as a result of the poor assessment. However, he agreed with Drs Champion and Bell that a major depression with psychotic features was “far more consistent with that typically found in those with constitutional disorders”.
Dr O’Neill thought it possible that Mr Azary’s functioning had been deteriorating in the year leading up to the meeting, but his level of pathology was “extreme and out of expectations one would find with work-related stressors”. He said persons distressed by performance management processes or perceived bullying, can sometimes develop an adjustment disorder with depressed mood but such reactions “typically tend to settle down within a week to a couple of weeks if not months at most with supportive counselling [etc]”.
Evidence of Drs Champion, Bell and Newlyn after seeing the DVD
Drs Champion, Bell and Newlyn gave oral evidence concurrently. Dr Newlyn said that, having seen the DVD and having seen Dr O’Neill’s report, he no longer consider that Mr Azary has had, or has, any psychiatric illness. Dr Champion said it confirmed his opinion that he does not. Dr Bell’s opinion changed after seeing the results of Dr O’Neill’s testing and, he said, was confirmed on seeing the DVD. All considered the presence of a psychiatric disorder inconsistent with Mr O’Neill’s results and with Mr Azary’s presentation on the DVD.
Dr Newlyn said he would not have changed his opinion on the basis of the DVD alone, because people have variable presentation outside clinical settings and it was possible Mr Azary was feeling better on those days. However, combined with Mr O’Neill’s report, in his view it was conclusive because the outcome of Mr O’Neill’s testing “changed the meaning” of the DVD.
The Tribunal asked the doctors how common it was for someone without a psychiatric illness to undergo four sessions of ECT. Dr Champion thought, in Mr Azary’s case, it could be explained by his presentation and the treating psychiatrist at the time may not have been aware of the extent of any inconsistency between his presentation and his ability to function.
Dr Newlyn and Dr Bell agreed. Dr Bell said that simulation can be very effective, and detection by others including judges and even doctors can be no better than chance. All thought the opportunity to observe a person unawares, such as the DVD, was persuasive.
Other medical evidence
Dr Klaus Akkerman, psychiatrist, saw Mr Azary in October 2012 and April 2013 for assessment and provided a written report of each consultation. He diagnosed Mr Azary as suffering severe Major Depression with psychotic features caused by his employment.
Dr Akkerman was not available to give evidence at the hearing and he had not viewed the DVD when he wrote his report. In these circumstances, his reports do not assist us.
Ms Arzu Oytam, clinical psychologist, first saw Mr Azary in August 2012. She saw him on 19 occasions up to March 2014. In her report dated 17 March 2014, she noted Mr Azary’s reported symptoms were consistent with a major depressive disorder (severe with psychotic features) which appeared to have developed in the context of workplace stressors. She considered his prognosis poor given the treatment resistant nature of the condition and thought it unlikely he would be able to return to work any time in the foreseeable future. Ms Oytam’s report summarises a history provided by Mr Azary. She makes no reference to reviewing other medical reports in existence at the time, including Dr O’Neill’s report, and she had not seen the DVD when she wrote the report. Ms Oytam does not comment on causation and in the circumstances her report does not assist us.
Findings about diagnosis
We are not satisfied, on the evidence before us, that Mr Azary suffered any symptoms of psychiatric disorder prior to the meeting on 20 April 2012. We have only his evidence and that of Ms Al-Haddad that he did. Although he reported to doctors after the meeting that he had experienced symptoms including hallucinations, there is no record of him reporting them to his doctor before that date. The fact that he did not mention symptoms to others at work is not itself surprising but Mr Atkinson, Mr Adhami and Ms Withers all gave evidence that they observed nothing to suggest he was under stress. In the absence of independent evidence to corroborate his claim, we do not accept it.
We have considered carefully the evidence about the diagnosis of any psychiatric condition suffered by Mr Azary, bearing in mind especially that he has undergone ECT. That fact alone is not easily reconciled with the absence of any psychiatric disorder but nor is it evidence in itself of a psychiatric illness.
Dr Tsang and Dr Alhajali, who have treated him at different times, were not persuaded by Mr Azary’s presentation on the DVD to alter their diagnoses and thought his different presentation explicable by reference to the fluctuating nature of his condition. However, both agreed aspects of Mr Azary’s condition were unusual and the explanations they suggested still do not explain discrepancies, for example, between the DVD and Mr Azary’s claim that he only drives in an emergency.
Drs Bell, Champion and Newlyn each saw Mr Azary only once. However, their unanimous conclusion, having seen the DVD, was that he has, and has had, no psychiatric disorder. Dr Newlyn changed his opinion completely, though not on the basis of the DVD alone.
Dr O’Neill suggested it was possible that Mr Azary’s cognitive functioning had been deteriorating in the year or so before meeting with Mr Adhami and Dr Bell also thought it possible (before seeing the DVD) that his deteriorating performance at work signalled the gradual development of a mental illness. If that is so, it could be open to us to find that Mr Azary suffered an aggravation of a pre-existing condition as a result of the meeting on 20 April 2012. However, we prefer the evidence of Drs Bell, Champion and Newlyn that Mr Azary does not, and has not, suffered from a psychiatric condition.
It seems extraordinary that any person would submit to ECT and anti-psychotic medication if not suffering from a psychiatric condition. On the evidence before us, however, we find Mr Azary has not suffered, and does not suffer, from a psychiatric disorder.
Did Mr Azary’s employment contribute to a significant degree?
If we are wrong, and Mr Azary does suffer a psychiatric disorder, it is probable that the meeting on 20 April 2012 did contribute to a significant degree to his condition. However, even allowing (without deciding) that is so, for the reasons that follow we find his claim is excluded by s 5A(1).
Was Mr Azary’s injury the result of reasonable administrative action taken in a reasonable manner in respect of his employment?
The respondent says that, even if we find that Mr Azary suffered an injury within the meaning of the Act, it is not compensable because it was the result of reasonable administrative action taken in a reasonable manner in respect of his employment.
The respondent says it was reasonable, in circumstances where Mr Azary had repeatedly failed to meet targets, to support him to improve his performance in the way that it did and, when that failed to produce results, for Mr Adhami to meet with him on 20 April 2012 and put options to him as he did.
For Mr Azary it is submitted that what was done concerning Mr Azary’s performance was not administrative action, it was not reasonable administrative action, and nor was it taken in a reasonable manner. It is submitted it was unreasonable for Mr Adhami to, in effect, “ramp up” his close supervision of Mr Azary by subjecting him to increasing pressure and new forms of supervision. Further, that the manner in which Mr Adhami convened and conducted the meeting on 20 April 2012 was unreasonable in that he called it without notice, at the busiest time of the week; he did not give Mr Azary the opportunity to have a support person present; he threatened termination; and he gave Mr Azary only until Monday morning to decide which of the options he would take.
Was it reasonable administrative action taken in respect of Mr Azary’s employment?
For Mr Azary it is submitted that the performance management and the meeting on 20 April 2012 were not administrative action in respect of Mr Azary’s employment. We do not agree.
133. The meaning of administrative action for the purposes of the SRC Act was considered by the Full Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. The Court noted at [25] and [71] that the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, by which the current version of s 5A(1) was enacted, stated that an objective of the exclusion was:
to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers compensation.
Gray J said at [31]:
The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
135. At [33], he said:
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. … As the tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken. (Original emphasis.)
136. The fact that Mr Azary’s meetings with Mr Adhami over several months, and the meeting on 20 April 2012, concerned the everyday duties and tasks that were required of him does not change the character of their meetings and their discussions from administrative action to merely operational. They were about Mr Azary’s performance of those duties and tasks, and his failure to meet expectations and in our view were administrative action.
For Mr Azary it is contended that Mr Atkinson and Mr Adhami were themselves under pressure to lift the performance of the Merrylands branch, in effect that they were motivated by their own interests and subjected Mr Azary to unreasonable pressure and “micromanagement”.
Mr Atkinson and Mr Adhami agree that the branch was underperforming but deny they put pressure on Mr Azary for their own purposes. We accept their evidence about this. Mr Azary’s underperformance and his failure to improve were reasons themselves to monitor his performance closely. We are satisfied that, whatever pressure each was under, Mr Azary’s performance was of such concern that they were required to act. They had set out their expectations clearly over many months and supported him to improve, without success. He occupied an important position in the branch and both his, and the branch’s performance relied on his meeting targets at least to a level considered satisfactory.
The weekly meetings with Mr Adhami and the meeting on 20 April 2012 were in connection with a reasonable appraisal of Mr Azary’s performance and reasonable counselling action (whether formal or informal) taken in respect of his employment. We are satisfied they were reasonable administrative action in respect of his employment.
Was it taken in a reasonable manner?
The respondent’s performance management policy
The respondent’s performance management procedures, including those for managing underperforming staff, are set out in a document titled “Performance management” which is available on its intranet. The copy before the Tribunal is dated October 2012, after Mr Azary stopped work. Mr Atkinson gave evidence, which we accept, that the version at all times relevant to Mr Azary’s claim would have been substantially the same.
The document broadly outlines the steps to be taken by managers when an employee’s performance does not meet expectations. It states that managers have an obligation to address performance issues as soon as they are identified; to discuss in detail the specific areas that require development with the employee; and to work with the employee to develop strategies, goals and action to be undertaken by the employee. While the employee’s performance is under review, the manager and employee must meet regularly to discuss the employee’s performance and the activities undertaken. The manager must provide the employee with a reasonable period of time for review and there a number of factors the manager should consider when determining this.
If an employee’s performance does not reach a satisfactory level of performance within the review period, the manager must provide the employee with a final review period. The manager is required to inform the employee in writing that they will be undertaking a final period of review, the duration of the review and that a failure to perform to a satisfactory level could result in termination. Similar obligations for recording activities and regular meetings are required during the final review period. If, at the completion of the final review period, the employee has failed to attain a satisfactory level of performance, the manager is required to seek advice from next level management and Workplace Relations.
Was action taken in a reasonable manner?
We are satisfied it was reasonable for Mr Adhami to institute weekly meetings in late 2011 and that he conducted them according to the policy and in a reasonable manner. Had the meetings not happened, and his poor performance not been brought to his attention, Mr Azary might reasonably claim not to have been on notice of his employer’s expectations and the poor rating he was likely facing.
There is no evidence that Mr Adhami conducted the weekly meetings in a manner other than helpful to Mr Azary. We accept Mr Atkinson’s and Mr Adhami’s evidence that Mr Azary seemed receptive to suggestions and Mr Azary’s emails bear this out.
When the Tribunal asked Mr Atkinson where the meeting on 20 April 2012 fitted into the formal process described in policy documents, he said it did not; it was because the BA1 position in another branch had come up and he thought it “perfect” for Mr Azary; it was not part of any formal performance management discussion. We accept his evidence.
Mr Adhami gave evidence that if Mr Azary had declined to take up the BA1 position he would have met with him again to notify him that a final review period would commence. Mr Adhami said he would have given Mr Azary notice of that meeting and the opportunity to have someone present with him if he wished. The process he describes is consistent with the final review process in the performance policy and we accept his evidence.
It was reasonable, in our view, for Mr Adhami to talk with Mr Azary about what he was facing. It was reasonable for him to answer truthfully, when Mr Azary asked him, that what he was facing if the final review was unsuccessful, was termination. Mr Azary must have known that himself because it was part of the published policy and was a reason he was concerned about his poor ratings previously. Although he claimed Mr Adhami’s manner during the meeting was “very cold”, he also said he spoke in a “very calm voice” and his manner was “laid back”. Nothing suggests to us that Mr Adhami’s manner was threatening.
There is no evidence, and Mr Azary does not claim, that he asked to have someone present at the meeting or that he asked Mr Adhami for more time to consider his options. Mr Adhami gave evidence that he would have granted both had Mr Azary asked.
It was not unreasonable for Mr Adhami to ask Mr Azary to decide over the weekend what he wanted to do. In effect, he was being asked whether he wanted to take up the option of the BA1 position. The respondent was under no obligation to offer him that position, whether at the same or lower salary. It is not even clear that the salary would have been lower. Mr Azary conceded in evidence that Mr Adhami said he would see if “management” would continue to pay him at the same level. It was open to the respondent to institute a final period of review without offering Mr Azary any alternative course.
We do not accept that Mr Adhami bullied or belittled Mr Azary or called him names. We prefer Mr Adhami’s evidence that he did none of these. We accept Mr Adhami’s evidence that they had what appeared to be a good relationship and accept the evidence of Mr Atkinson and Ms Withers to that effect as well.
It may be that Mr Adhami could have handled the meeting differently: he might have given Mr Azary more notice that he wanted to discuss his performance rating and, knowing Mr Azary was likely to be upset, he might have set aside more time to discuss it. When asked what would happen if he failed to achieve a satisfactory rating at the end of the formal process, it is possible he could have mentioned the possibility of termination more gently. But his rating and what he was facing in the absence of improvement cannot possibly have come as a surprise to Mr Azary.
The fact that action might have been conducted differently, or in a more reasonable manner, is not to the point. The judgment required is “whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court: Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [79] per French J.
Conclusion
It does not appear, from the evidence before us, that Mr Azary had any psychiatric problems before April 2012. He appears to have done reasonably well in his studies and his employment up until 2010 when he took up the position of banking advisor. It is possible that he was simply not suited to that position. Whatever the reason, he was unable or unwilling to recognise his unsatisfactory performance.
We accept that Mr Azary found the prospect of moving to a BA1 position or undergoing a formal performance management process distressing. It is possible that he suffered some psychological reaction at the time or even that it was the trigger for an underlying disease. On the evidence before us, we are not satisfied either was so but, even if we were, we would find it was the result of reasonable administrative action taken in a reasonable manner in respect of his employment. It follows that any psychological condition he suffered was not a compensable injury for the purposes of the Act.
For the reasons we have given, we affirm the decision under review
156. I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr M Couch, Member.
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Associate
Dated 16 April 2014
Date(s) of hearing 25, 26, 27, 28 and 31 March 2014 Counsel for the Applicant Mr Frank Curran Counsel for the Respondent Mr Michael Snell
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