Banwell and Comcare (Compensation)
[2016] AATA 30
•28 January 2016
Banwell and Comcare (Compensation) [2016] AATA 30 (28 January 2016)
Division
GENERAL DIVISION
File Number
2014/1871
Re
Mark William Lister Banwell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 28 January 2016 Place Melbourne The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Regina Perton, MemberWORKERS’ COMPENSATION – whether mental health condition arose out of or in the course of employment – whether the result of reasonable administrative action in a reasonable manner – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
28 January 2016
Mark Banwell worked as an electorate officer for Senator John Madigan from July 2011. He no longer works for the Senator. Mr Banwell was in conflict with Senator Madigan’s then Chief of Staff, Stephen Campbell, who also no longer works for the Senator. Mr Banwell was diagnosed with an adjustment disorder with mixed emotional features and/or depression for which he blames the workplace and incidents that happened during his employment.
Mr Banwell completed a claim for compensation on 14 May 2013. On 30 October 2013 Comcare’s delegate accepted that Mr Banwell suffered from a work-related condition but determined that liability was excluded because the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr Banwell’s employment.
On 30 November 2013 Mr Banwell requested reconsideration of the decision. On 19 February 2014 a Senior Review Officer of Comcare affirmed the delegate’s decision.
On 14 April 2014 the Tribunal received Mr Banwell’s application for review. Mr Banwell submitted that whilst Comcare accepted that his employment contributed to his condition to a significant degree, it had used a legal loophole to dismiss his case. Comcare maintains that its determination was appropriate.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(1) In this 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;
but 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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(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 employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s 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, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the Act states:
Definition of disease
(1) In this Act:
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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material
Ailment is defined in s 4 of the Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
MR BANWELL’S HISTORY
Mr Banwell grew up in the Ballarat area. After completing secondary school, he undertook officer training at the Royal Military College, Duntroon. He completed an Arts degree as part of his training. Mr Banwell retired from the army in 1987. He and his family returned to Ballarat where Mr Banwell operated a small family business. He also worked in the finance industry for a time having studied for the relevant qualification.
Mr Banwell was the Liberal Party candidate for the seat of Ballarat at the 2010 Federal election. The seat was retained by the sitting Labor member. Mr Banwell had become friendly with the Ballarat based DLP candidate for the Senate, John Madigan. Mr Madigan was elected to the Senate and Mr Banwell was offered and accepted a position as a member of Senator Madigan’s electorate staff in his Ballarat office.
MR BANWELL’S HEALTH
After lodging his claim for compensation on 14 May 2013, Mr Banwell provided a statement on 17 July 2013 describing the factors that led to his claim. Mr Banwell stated that the date of injury was 1 December 2012. Part of his statement is as follows:
Statement of factors leading to claimant’s condition
At the conclusion of Parliamentary Sittings in November 2012 a performance review of my position was conducted by the Chief of Staff for Senator John Madigan, Mr Steven Campbell in Canberra.
During that review of my tasks and duties as Executive Support Officer to the Senator, Mr Campbell advised me that he was very happy with my performance and stated: “I could not fault you”. As recognition of my performance Mr. Campbell advised me that he would promote me from EOA band level to EOB in December 2012.
On return to the Electorate office in Ballarat I was presented with the employment agreement without the promotion to EOB and only an incremental increase in EOA level. I was not informed why the promotion was not given. I was most disappointed that this promised rise in my band level did not eventuate…
I am the only staff member in Senator Madigan’s office still at this band and there are other staff members who have been employed and have been promoted above me. I believe this is a wilful act of discrimination by Mr. Campbell against me.
The reason why I did not say anything at the time was that I was fearful my position would be terminated if I objected…
In an email Mr Campbell sent to me at 3:35 PM on 9 May 2013 …, he states:
“I understand that you have advised … that you were promised a promotion in a meeting with me in November last year, and that you have been overlooked as a promotion had not happened.
…
I accept your point that this was your impression from our meeting and I will take your feedback on board to ensure I am very clear with you and other staff when we have one-on-one performance discussions, particularly when I am discussing upcoming plans for the office. I am advised that your salary is scheduled to advance to the next increment point on 1 July.”
This is a total prevarication of the interview and Mr Campbell has twisted the facts, admitting it happened but denying that he promised me the band rise. Nor was there any discussion; the interview was a monologue, with Mr Campbell speaking all the time. This is his Modus Operandi when holding meetings with staff, as there are no records kept.
The practice of deceit is revealed in the next interview we had in 2013. I took my annual leave under a cloud of uncertainty and disappointment and returned to my duties at the Ballarat electorate office in January 2013. I had another performance review that month with Mr. Campbell. His first words to me at the interview were:
“You’re not going to Canberra as much this year”
I noted at the time that he had a notepad on his desk with only three letters: EOA. Clearly, he was aware of my pay grade in the conversation we had in November. He made no other notes for the whole time of the interview. Looking back, I believe it was done deliberately to goad me.
I was also informed that a junior staff member would be taking my place. No reason was given and again I did not challenge his decision. I performed my duties at the Senator’s Parliamentary office in the first sitting week. I have not been back to Canberra since then.
Mr Banwell described an incident that occurred on 2 May 2013:
…While attending my workstation Mr Campbell emerged from the Senator’s office and ordered me to answer the phone first in the office. I was quite startled by this unprovoked unwarranted directive as I had already been doing this. I turned around and tried to explain that I was already answering the phones but he continued his rant trying to justify his outburst. I then asked him if he was victimising me when he became enraged, calling me and idiot three times in front of the Senator and other staff members. I removed myself from my workstation without saying anything further to him.
…
I also noted a marked change in Mr. Campbell’s attitude towards me after the Christmas break. He rarely spoke to me after the performance review in January. I also noticed that he would be constantly monitoring me, looking over my shoulder at my computer screen…This atmosphere of distrust and suspicion continued up until the time of our exchange on the 2nd of May and it is my opinion he deliberately contrived the situation to provoke a response from me. As he could not fault my performance at any time in my employment he introduced this requirement to answer the phones as an issue to have me dismissed.
All these incidents have taken place in the absence of a formal framework with an office charter and formal job descriptions…
After the rejection of his compensation claim on the basis that he had suffered a health condition which was significantly contributed to by his employment but that his injury was not compensable as it had arisen due to reasonable administrative action taken in a reasonable manner, Mr Banwell sought reconsideration of the decision. In his lengthy submission dated 30 November 2013, Mr Banwell stated, amongst other things, that:
…
The Comcare delegate has given no consideration to the instances of bullying to which I was subjected by Mr Campbell.
The Comcare Delegate’s description of the nature of my employment and tasks involved on page 5 of the Statement of Reasons is inaccurate, misleading and incomplete. This is a description of my duties AFTER all of my other duties were removed from me by Mr Campbell in January of this year. It does not acknowledge any of the duties and tasks I performed in the Senator’s Canberra office of the Ballarat office from the commencement of my employment.
…
On 17 May 2013 Dr Ifiok Uko, general practitioner, issued a Certificate of Capacity with the diagnosis of:
Depression – worsening – anxiety disorder – adjustment disorder.
In the certificate, Dr Uko stated that bullying and harassment at work had aggravated Mr Banwell’s depression.
On 18 July 2013 Dr Uko provided a report to Comcare at its request. He stated:
Mr Mark had his first consultation with me on 10/05/2013 regarding bullying and harassment at his work place. He stated that this had been going on for about 6 months.
He reported that due to this, he felt more depressed, did not look forward to being at work, he had poor sleep and he was drinking more than usual. He stated that he was in counselling at his work place and he reported no thoughts of selfharm…
I noted that he had a past history of Depression and was still taking his antidepressant at the time.
On examination he looked anxious, there was good eye contact and he was well groomed. He had no abnormal thought disorder…
I then discussed with him about doing a mental health plan for him to start counselling and also to get him reviewed with a specialist psychiatrist as Mr Mark felt that he would not be able to go back to work for up to 12 months.
He did not need a mental health plan since this was a workcover consultation but I did go ahead with referring him to Claire Vrieze who is a psychologist and I also sent a referral across to Dr Dominic Green, a specialist psychiatrist who has seen Mr Mark in the past regarding his depression.
It is possible that Mr Mark has suffered and [sic] aggravation of his pre-existing mental health condition of Depression.
Dr Domenic Green, consultant psychiatrist, provided a report to Dr Keith Ho, medical practitioner, on 18 July 2013, following a review of Mr Banwell on 16 July 2013. Dr Ho had previously treated Mr Banwell in relation to mental health issues prior to his employment with Senator Madigan but Dr Ho was no longer his treating general practitioner:
…
History of Presenting Complaint:
Mark is a 57 year old male living with wife Therese
Currently on Sick Leave
Staffer fulltime with Senator for 2 years till 31st May, 2013
“Work conditions have caused my health to suffer. Steady campaign since last year around December. Performance review late November 2012 and told I had performed admirably and pay rise would occur. It never happened and told I would not be going to Canberra anymore. Made redundant and demoted effectively and no reason given. Office Manager is Employing Officer and his DLP political views are anti-Liberal and jealous of my contacts only reason I can think of.
At work Office Manager spying on me and told me “you are an idiot” three times.
Two people prior to me removed in same way
Claire Psychologist seen twice and been helpful
EFFEXOR since early this year and been helpful and more buoyant mood
Nil contact Ballarat Base Hospital Psychiatrist Services since 2 years ago
Family are very supportive”
…
Alcohol History:
“One BEER per day and no more than usual”
Past Psychiatric History:
“Before family thing but this now is purely work thing and totally unrelated to previous problem that I made complete recovery from”
Mental State Examination:
Mood: Anxious somewhat
Thought: Nil self harm symptoms. Nil Psychosis symptoms
Impression:
Adjustment Disorder
Claire Vrieze prepared a report for Comcare at its request on 23 July 2013. Mr Banwell’s first appointment with her was on 20 June 2013. Ms Vrieze had seen Mr Banwell for three 50 minute sessions. She had before her a copy of Mr Banwell’s Mental Health Plan dated 17 May 2013 prepared by Dr Uko and Mr Banwell’s submission to Comcare dated 17 July 2013.
Ms Vrieze provided a summary of events and factors that contributed to Mr Banwell’s mild to moderate psychological injury. Ms Vrieze diagnosed Mr Banwell as suffering from an Adjustment Disorder with depressed mood. She was of the view that he was fully in remission from an earlier bout of clinical depression.
Ms Vrieze stated that Mr Banwell’s prognosis for a full recovery was excellent citing a number of protective factors. She also recommended that Mr Banwell should not return to his pre-injury workplace as this is likely to exacerbate negative emotions. Ms Vrieze stated that:
…
The nature of Mr Banwell’s injury…indicates that the workplace issues materially contributed to him developing this injury. There are no other factors or pre-existing psychological conditions which could better account for his diagnosis.
Comcare accepted that Mr Banwell suffered from an ailment that was contributed to, to a significant degree, by Mr Banwell’s employment by the Commonwealth. That ailment was described as adjustment disorder with depressive symptoms.
Taking into account the evidence before the Tribunal from his treating health practitioners and Mr Banwell’s evidence and submissions, the Tribunal also accepts that Mr Banwell’s employment was the major contributor to the development of adjustment disorder. The Tribunal is satisfied that Mr Banwell suffered an ailment as defined in Sections 4, 5A and 5B of the Act.
DID MR BANWELL SUFFER A WORK RELATED AILMENT?
A person may have suffered from an adverse health condition with a significant work contribution but still not be entitled to workers’ compensation in certain circumstances. These include the provisions set out in Section 5A(2) of the Act where examples of reasonable administrative action are spelled out:
(a) a reasonable appraisal of the employee’s performance
...
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Mr Banwell cited a number of incidents that led to his eventual claim in his written statement. He stated that these went back some six months until a final incident in early May 2013 where an unanswered ringing phone sparked a response from Mr Campbell in which Mr Banwell states that he was called an idiot three times.
Mr Banwell represented himself through the claim and reconsideration periods and when lodging his application to the Tribunal. However he subsequently obtained legal assistance and was represented by Ms Renee Sion of counsel at the hearing. In her submissions to the Tribunal, Ms Sion stated that Mr Banwell had only obtained legal representation prior to a conciliation conference at the Tribunal. She submitted that Mr Banwell had drafted his statement dated 17 July 2013 setting out the factors leading to his condition at Comcare’s request. Ms Sion criticised the delegate’s summary of Mr Banwell’s five page statement into six dot points as the causes of the injury.
…Mr Banwell drafted the statement without assistance, and certainly without legal representation. He drafted it in response to Comcare’s request that he draft a statement of factors ‘leading’ to his condition (cf:’causing’). Understandably, and pursuant to the instruction, the statement is a lengthy airing of grievances by Mr Banwell with respect to his employment; it contains everything he was dissatisfied about, everything that had annoyed or aggravated him, and every inconsistency between the role as had been described to him and the role he was being led to undertake. The statement easily paints the picture of a disgruntled employee. It doesn’t, however, in legal speak, break down and identify the exact causes of Mr Banwell’s injury, and the danger of that having been done by the Comcare delegate on behalf of Mr Banwell is self-evident – she erred on the side of inclusiveness and dot-pointed every topic that had been referred to in the statement.
…
…All of the material set out in Mr Banwell’s statement - and summarized in the original determination and reviewable decisions – is part of the factual matrix of the situation, but in our respectful submission, did not all cause the injury sustained by Mr Banwell.
Ms Sion submitted that only the phone answering incident on or about 2 May 2013 and a subsequent email sent to Mr Banwell on 9 May 2013 were relevant to the claim. She submitted that:
…In our respectful submission, the factors that might be characterised as administrative action, eg: Failure to obtain a promotion, the removal of travel duties and the lack of office charter and formal job description, did not cause Mr Banwell’s injury. In contrast, the altercation between Mr Banwell and Mr Campbell could not be characterised as administrative action, or if it was, it was not taken in a reasonable manner.
…
If the Tribunal finds that Mr Banwell’s injury was caused by factors that include administrative action, then in our respectful submission the reasonable administrative action was not taken in reasonable manner.
The decision to remove Mr Banwell from travel duties and instead require a part time employees/university student replace him was unreasonable….
Comcare maintained its view that administrative actions in December 2012 and January 2013 were relevant to the claim and that reasonable administrative action had been undertaken by Mr Campbell in a reasonable manner.
In Hart v Comcare [2005] FCAFC 16 the Full Federal Court held that, provided that an ailment is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that ailment is also suffered as a result of any other employment-related circumstance.
The need to differentiate between administrative and other actions was considered in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 where Gray J stated at [31]:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. 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.
Mr Banwell provided a further written statement dated 10 September 2014. That statement was primarily about the phone answering incident on 2 May 2013.
In his oral evidence, Mr Banwell told more of his background. As an army officer he had served in Australia and overseas including working with US intelligence in Arizona. After he left the army in 1987, he was self-employed with a restaurant in Ballarat for 15 years which he subsequently sold. He then worked in the finance industry providing advice on futures trading and commodities. He was licensed as a financial advisor.
Mr Banwell said that he had worked for Senator Madigan from 20 July 2011. He was interviewed by the then Chief of Staff and offered a role as personal assistant/advisor at the Electoral Officer Band A level (EOA). Mr Banwell said that he was not given any specific details but rather a broad brush description of his duties. He said that he was told that he would assist Senator Madigan with matters such as arranging for the Senator’s travel by air to and from Canberra and his access to Commonwealth cars; maintaining the Senator’s diary including arranging meetings with constituents; office administration in Canberra; making sure the Senator was at question time and other related matters. Mr Banwell said that he attended every parliamentary sitting from his appointment in July 2011 until February 2013. Mr Banwell said that of his own initiative, he had familiarised himself with parliamentary procedures. Mr Banwell said he reported directly to the Senator although it was Mr Campbell who interviewed him to the position and was responsible for supervising him and allocating duties.
Mr Banwell said that in the Ballarat office there were ten people including himself, six full-time and four part-time. He said that he had a cordial relationship with his colleagues. Mr Banwell said that he was happy with the workplace environment during 2011 and 2012. He was glad to have a position where he could use his skills. He said that there were no harsh words with anyone, particularly none with Senator Madigan.
Mr Banwell said that in late November 2012 in Canberra, the then Chief of Staff, Mr Campbell, had said in a meeting that he was happy with how Mr Banwell had performed. Mr Banwell said that Mr Campbell indicated that he would be recommending him for the next band level. Mr Banwell says that he understood that to mean he would be paid at Electorate Officer Band B (EOB).
In early December 2012, during a performance appraisal, he was told that he would receive an incremental rise in the EOA Band. Mr Banwell said that he did not discuss the issue further during the meeting as he was confused. He said that he was also aware that there were some staff who had left and thought that Mr Campbell had been behind their removal after they had challenged his authority and directives.
Mr Banwell returned from leave in January 2013. He said that he had overcome his disappointment at not being reclassified. Mr Banwell said that things appeared fine on his return until he participated in a one on one interview with Mr Campbell. Mr Banwell said this occurred on or around 15 January 2013 in Mr Campbell’s office. No one else was present. Mr Banwell said that Mr Campbell’s first words to him were you are not going to Canberra as much this year. Mr Banwell said that he said nothing in reply. Mr Banwell said that Mr Campbell explained what was happening. Another much younger staff member who was a part-time EOB, Matt Restall, would be accompanying the Senator to Canberra. Mr Banwell said that he was directed to give his Canberra key to Mr Restall and to brief him. Mr Banwell said that he did as he was told. He returned to Canberra in the first week of February 2013 and showed Mr Restall where everything was. Mr Banwell returned to Ballarat and has not been to Canberra with Senator Madigan since then.
Mr Banwell said that he was verbally told of his change of duties. There was no documentation provided. Mr Banwell said that it had been shocked by the situation after having previously had positive feedback. He felt he had been unfairly treated. He said that it was difficult to coordinate the Senator’s activities in Canberra from Ballarat when he could not see who was coming in and out. He said that at one stage, Mr Campbell criticised him stating that the calendar was not working as well as it should.
Mr Banwell gave evidence about what happened on 2 May 2013. He said that Mr Campbell went into the Senator’s office for a meeting at around 1pm. Mr Banwell said that he was at his desk trying to prepare the calendar for the next sittings. He said that Mr Campbell emerged from the Senator’s office and told him that he wanted Mr Banwell to answer phones from now on. When the receptionist was there, she would usually answer the phone. When she was absent, then each person in the office was responsible and everybody would pick up the phone. Mr Banwell said that Mr Campbell emerged from the meeting and accused him of not answering the phone. Mr Banwell said that he had been answering. Mr Banwell stated that his comment to Mr Campbell was “Are you victimising me?”. Mr Banwell said that Mr Campbell’s tone of voice upset him and he felt he was being singled out for no operational reason. Mr Banwell said that Mr Campbell had said “you are an idiot”. Mr Banwell said he felt shocked by the unwarranted behaviour on Mr Campbell’s part and humiliated as this took place in front of the Senator who had also emerged from his office. Mr Banwell said it was demeaning to be dressed down in front of juniors. Mr Banwell said that he left the office at about 2 pm and went to see Dr Uko that day. He said that the whole experience from the time of being told he would not have a pay raise until the latest incident worried him. He said that he took the incident on 2 May 2013 as the final chapter in his time in his role.
Mr Banwell said that he took the rest of 2 May 2013 off but then worked until 9 May 2013. He saw Dr Uko on 10 May 2013. Mr Banwell said that he explained the situation to Dr Uko, saying that he had been bullied and harassed by his supervisor and described the atmosphere as corrosive.
Although he had not worked since May 2013, Mr Banwell thought he was fit to return to work and that he could undertake the electorate officer role but not in the Senator Madigan’s office. Mr Banwell said that he was quite satisfied with his work until November 2012 but he became disgruntled as the atmosphere deteriorated and his duties were taken away.
Under cross-examination by Mr Harris, counsel for Comcare, Mr Banwell said that taking on the electorate officer role allowed him to follow his passion for politics and to work in Canberra. Whilst not the career prize he wanted, it was still a very good role.
Asked about the differences between his job and that of Mat Restall, Mr Banwell said that his job went beyond managing the calendar, events and emails. He said that while Mr Restall’s job was to vet and review legislation, he was not the only one in the office to do so. Mr Banwell said his area of review was defence legislation.
Questioned as to why he now placed emphasis on the events of 2 May 2013 when he had not mentioned them in his claim form, Mr Banwell said that if he had been more astute, he would have engaged a solicitor prior to lodging his claim. He said that in his submission dated 17 July 2013 he had elaborated on the events that he believed were relevant. Mr Banwell said that the material in that submission was by way of background.
Mr Banwell said that he did not keep his own records of meetings with Mr Campbell. He confirmed that there were no witnesses when he and Mr Campbell held meetings in December 2012 and January 2013.
When it was pointed out that he had told Dr Uko, Dr Greene and Ms Vrieze that there were several reasons for his state of health and that they had repeated those in their reports, Mr Banwell said that he had not been to the doctor about those issues in December to April 2013. Asked why Dr Uko had said that he first saw Mr Banwell on 10 May 2013 rather than 2 May 2013, Mr Banwell said he did not know but it may have been the day after he received Mr Campbell’s email dated 9 May 2013 rather than the day of the confrontation about answering the telephone.
Mr Harris asked why Mr Banwell had changed his view on the various factors that caused his ailment, Mr Banwell responded that the injury occurred on 10 May 2013 when he saw Dr Uko who diagnosed his adjustment disorder. Challenged by Mr Harris as to whether he had changed his story about the various causes of his ailment to suit his case, Mr Banwell said that the circumstances have not changed but his interpretation of the nature of the actions has.
Mr Banwell said that he was unaware of the staffing levels in the office as far as EOA and EOB levels were concerned. When it was put to Mr Banwell that Mr Campbell had said in a statement that he did not offer him a promotion in late 2012, Mr Banwell said that there were no notes of the conversation and therefore no weight should be given to Mr Campbell’s comments.
Mr Banwell said that he had not been given an explanation as to why Mr Restall was the preferred person to go to Canberra with Senator Madigan until Mr Campbell sent him an email on 9 May 2013.
Mr Banwell agreed that in early to mid-2014, Dr Uko had stated that Mr Banwell was fit to return to work. He agreed he was undertaking training in the financial area but said, as Dr Uko and Ms Vrieze had stated, that he could work in an electorate office but not in Senator Madigan’s with Stephen Campbell.
Upon re-examination, Mr Banwell said that he may well have had a consultation at the clinic where Dr Uko practised, where there were about 20 doctors. He said that he had seen two or three doctors at that clinic. He could not recall the exact dates.
Having been asked what was so significant about 2 May 2013 and how he remembered the detail, Mr Banwell said he saw it as a career ending incident. In relation to his perception of promotion being offered to EOB in late 2012, he said that he had believed it was possible. Mr Banwell stated that of all the matters he had raised, none was as significant as the event on 2 May 2013.
Mr Rodney Broadbent, the Senior Liaison Officer in Senator Madigan’s office during Mr Banwell’s employment, provided a written statement dated 10 September 2014 and gave oral evidence. In his statement, Mr Broadbent stated:
…
2. I first became aware of a dispute between Mark and STEPHEN CAMPBELL (“Stephen”) at the beginning of February 2013.
3. Mark told me he was offered a change in duties and an increase in remuneration by Stephen in a discussion prior to Christmas 2012 on the basis that he had performed well as an Executive Support Officer to the Senator. The role would commence when Parliament resumed at the end of January 2013.
4. Mark was not happy with his new role as he was informed he would no longer be required to travel regularly to Canberra and his duties as Manager of Senate Procedure and Standing Orders, and Manager of the Canberra Officer, were now going to be carried out by part-time junior Staffer MATHEW RESTALL (“Matthew”).
5. Mark also indicated to me that far from being rewarded as indicated in his discussions with Stephen prior to Christmas 2012 the new arrangements resulted in a reduction in his remuneration.
6. I was concerned that because basic H.R. procedures had not been followed there was uncertainty and confusion. There should have been a third party as a witness to the conversation between Mark and Stephen that occurred prior to Christmas 2012, and again when Mark’s role was redefined in January 2013.
…
10. On 2 May 2013, at the Ballarat office, there was an altercation between Mark and Stephen. I was taken by surprise by the incident, both by the fact that it occurred at all and by the intensity of the language used by Stephen.
11. At the time I was discussing matters with the Senator and Stephen. Mark was in his cubicle near the reception area. The telephone rang and I answered it. At the end of the telephone call I heard Stephen ask Mark why he had not answered it. Mark replied that I had answered the call. Stephen then said to Mark that from now on he was to answer the telephone. Although this was a relatively straight forward request it was not so in the context of discussions that had already occurred within the office. The Senator was concerned that there be one initial point of contact in the office to avoid confusion caused by multiple people answering the telephone. We had a receptionist Celeste, and she had been directed to make sure that she was the first point of contact for both phone and those attending the office. The instruction given to Mark by Stephen was in direct contradiction of that arrangement.
12. I heard Mark say something to Stephen and I was surprised when he responded loudly to Mark “you’re an idiot”. He repeated that expression in the same raised voice.
13. Mark was understandably upset, by what I saw as an unprovoked attack in a most unprofessional manner. I was relieved when Mark left the building after stating to me the obvious – this sort of situation could not continue.
…
Mr Broadbent told the Tribunal that he worked as a real estate agent in the Ballarat area. He started working for Senator Madigan on 1 July 2011. He is no longer working for the Senator. His role was a Senior Liaison Officer. He was out in the field with the Senator around Victoria. He also provided assistance to the office manager particularly in relation to human resources issues. Mr Broadbent said that he first met Mr Banwell while handing out DLP flyers at Bacchus Marsh in 2010. Mr Banwell was then the Liberal candidate in a safe Labor seat.
Mr Broadbent said that Mr Banwell had first told him of the earlier meetings with Mr Campbell towards the end of January or early February 2013. Mr Broadbent said that Mr Banwell said he was unsure of his role and that everything had blurred. Mr Banwell indicated that Mr Campbell had offered a promotion but instead was now going to receive an incremental increase at the same classification. He said Mr Banwell also told him he was no longer going to Canberra but rather another staffer was to do so.
Mr Broadbent said that Mr Banwell was also concerned about the lack of a formal job description. Mr Broadbent described the steps he took in creating job descriptions and an office charter during 2013. He also described the events of 2 May 2013 from his perspective. He said Celeste, who sat near reception, was not in that day as she was part time. The phone answering protocol was that if the phone rang twice, others in the office picked it up. Mr Campbell left the meeting with the Senator and asked Mr Banwell why he had not picked up the phone. Mr Campbell had been abrupt and Mr Banwell had challenged his comment. Mr Broadbent said that anyone would have been surprised by Mr Campbell’s tone which was bordering on aggressive. He answered a number of further questions about the 2 May incident. He said that it had not been a screaming match. He said that the word idiot was used twice.
Mr Broadbent confirmed that Mr Banwell had enjoyed going to Canberra. There was a living away allowance which was also welcome given the relatively low earnings of an EOA earned. He clarified that the term of junior staffer used by Mr Banwell referred to Mr Restall’s age and experience. Mr Restall was not junior in classification being a part-time EOB while he finished university studies.
Mr Broadbent was asked about two employees that Mr Banwell believed had been sacked at Mr Campbell’s directions. Mr Broadbent said that he was aware of the circumstances but that any termination had to be at Senator Madigan’s direction.
Mr Stephen Campbell provided a witness statement dated 23 September 2014 and gave oral evidence at the hearing. Mr Campbell was the Chief of Staff in Senator Madigan’s office from 1 July 2011 until 2 January 2014. As such he was Mr Banwell’s manager from 20 July 2011 until Mr Banwell commenced leave in May 2013. He stated:
…
5. In response to the claim by Mark that I reduced his duties to administrative office duties in January 2013, I state that his duties were the same from his first day in the office. I explained the nature of the job to Mark before he commenced with the office and he stated that he was not looking for anything beyond those duties…
6. As the only EOA in the office, he was tasked with dealing with enquiries in person at reception. It was always a requirement of his job that he be first to answer the phone, whether he was in the Ballarat office or the Canberra office, unless he was unavailable in which case others in the office would do so. All of the duties listed could be done in either the Canberra or Ballarat offie. The only additional task which Mark was initially supposed to perform in Canberra was to act on the Standing Orders, however because Mark did not seem able to manage this task, I dealt with them myself.
…
8. In regard to the claim by Mark that Celeste Hevey (Celeste) was hired as a receptionist and that it was her role to answer the phone, I refute that claim. Celeste was hired as an office manager, from the relieving staff budget, on a part time basis to replace Michael Keane, who had previously been in that role. I also note that she was hired sometime after Mark, who was required to answer the phone from his commencement date.
9. At the performance review in November 2012, I reject that I said anything which could be construed as offering Mark a promotion. My email to Mark on 9 May 2013, where I state that I understand he formed this view, should not be taken as an acknowledgment that I said anything which would suggest that he would be promoted. This is because there was no vacant Electoral Officer B position which was vacant and no additional budget from which to create this position. Although I was delegated to sign employment agreements on behalf of Senator Madigan, all decisions on hiring and promoting employees were made by Senator Madigan. I also did not dismiss any staff on my own initiative. I further reject that I stated that a further increment would be paid mid-cycle, because they are paid on 1 July each year and Mark had received an increment in July 2012. The only discretion is to withhold the increment. This would not have happened in this case.
10. During the performance review, I explained to Mark that it had become clear that it was necessary for someone with research skills to accompany the Senator to Senate Committee meetings and during sitting weeks. I did not specify at that time that it would be Mat Restall (Mat), who was the Electoral Officer B (EOB) level, but employed on a part time basis. Previously both Mark and Mat had sometimes travelled to Canberra at the same time. I also explained that the travel budget had been reassessed and that it had been decided that normally only one Electoral Officer travelling to Canberra at a time and that any other travel would be at the discretion of Senator Madigan.
11. During the discussion with Mark in January 2013 I informed him that it would be Mat who would be accompanying the Senator to Canberra because he had the necessary research skills…
Mr Campbell then went on to describe his recollections of the processes initiated in March 2013 to create formalised duty statements. He stated that …before that, people had broad statements of the type of duties someone at their level did. He also described his memory of the 2 May 2013 incident. He denied he was shouting or used the word idiot three times.
In his oral evidence, Mr Campbell said that he had started working for Senator Madigan before the Senator was sworn in. He said that Senator Madigan had been entitled to six staff, two being personal staff and the rest electorate staff. Some of the staff were part time. Mr Campbell stated that the EOA was the first port of call for constituents, made travel arrangements, ran the appointments calendar and travel with the Senator at his discretion as required. Mr Campbell said he first met Mr Banwell after the Senator suggested he may be suitable for the EOA vacancy given his interest in politics and knowledge of Ballarat. Mr Campbell said he conducted an informal interview. The position was not advertised.
Asked why Mr Restall and Mr Banwell could not both travel to Canberra. Mr Campbell said that personal staff had an unlimited travel budget but that there was a set amount available for electorate staff. He said that the decision to change Mr Banwell’s role and that of Mr Restall was that of Senator Madigan. Mr Campbell confirmed that it was he who told Mr Banwell of the change in relation to Canberra travel around the end of the parliamentary year in November – December 2012.
In relation to Mr Banwell’s concern that he had not taken notes during the meeting with him, Mr Campbell said that he usually does not take notes in meetings with staff. If Mr Banwell had said something unexpected, then perhaps he might have jotted a note but did not recall doing so in this instance. Mr Campbell said that he had told Mr Banwell he was doing his job quite well but that things would change early in the next year. Mr Campbell said that the role would stay the same minus the travelling. He reiterated that there had been no vacancy that Mr Banwell could have been promoted into in late 2012.
In relation to the January 2013 performance appraisal, Mr Campbell said that in his view, Mr Banwell was still doing his job but was more surly in his attitude. He said Mr Banwell was unhappy about not going to Canberra regularly during the coming year. Others in the office had also told him that Mr Banwell was unhappy with the decision that Mr Restall go to Canberra rather than himself given Mr Restall’s young age and lack of lengthy work experience.
Mr Campbell described the circumstances of the departure of two staff whom Mr Banwell alleged had been forced to leave the Senator’s employment. Mr Campbell denied that it was his actions that led to their departure. One of the staff had been a member of Senator Madigan’s personal staff with whom Mr Campbell is still in contact. The other person was dismissed in circumstances not relevant to this matter.
In relation to the 2 May 2013 incident, Mr Campbell gave his version of what had happened. Shown the email he had written on 9 May 2013, Mr Campbell said that it appeared to reflect what had happened.
Mr Campbell clarified that Celeste was not in on that day. He said she was not a receptionist but rather a three day a week part time EOB whose job was to do accounts, budgetary management and the like. She was more an office manager.
Under cross examination, Mr Campbell repeated that the Senator had employed Mr Banwell and Mr Restall, not him. He said that Senator Madigan had known Mr Restall through shared interest groups. Mr Restall was in his early twenties and had almost completed a relevant degree. Mr Campbell said that Mr Banwell was not barred from trips to Canberra because of poor performance. He reiterated that Senator Madigan decided that he preferred to have a different person in Canberra and Mr Restall was the logical choice. He said that Mr Restall was still employed by Senator Madigan. Mr Campbell said that every employee was advised travel to Canberra may be required.
Asked why after 18 months of going to Canberra it was decided that Mr Banwell should stay in the Ballarat office to do his work, Mr Campbell said that it was decided that Mr Restall’s abilities and interests better matched what was now needed. Furthermore, the work Mr Banwell was expected to do could be done in either location whereas Senator Madigan needed someone in Canberra in relation to policy matters and discussions.
Mr Campbell was adamant that he had not promised a promotion to EOB to Mr Banwell. He said that he could not provide a salary increase in late 2012 as the increments were not due until the end of the financial year. He confirmed that the Canberra travel decision had been discussed with Mr Banwell in late 2012.
In relation to Celeste answering the phone, Mr Campbell said that everyone in the office was required to answer the phone but if Celeste chose to do so more quickly than others, that was fine. He said Celeste did not sit at a reception desk which was empty because few people actually came in to the office.
Mr Campbell could not recall if Mr Banwell was wearing headphones at the time of the 2 May 2013 incident but that he habitually did so. However on that occasion the phone flashed alongside the ringtone sound. Mr Campbell said that when the phone was not answered while he and Mr Broadbent were meeting with the Senator, he said he tapped Mr Banwell on the shoulder and asked him to answer the phone. Mr Campbell recalled that he had said ‘don’t be an idiot’ rather than ‘you are an idiot’ when Mr Banwell had suggested Mr Campbell was harassing him. Mr Campbell recalled writing a note but did not remember what it said. He no longer possesses such material as he no longer works for the Senator. Mr Campbell remembered that Mr Banwell came to work the next day but could not recall what he himself was doing that day. Asked why he had sent an email to Mr Banwell on 9 May 2013, Mr Campbell said that it was on advice from Mr House in the department that managed electorate staff and budget. Mr Campbell said that it was not his intention to sack Mr Banwell.
On 19 July 2013 Senator Madigan provided a statement in relation to the comments previously made by Mr Banwell:
In October 2012 I discussed the necessity of varying the personal in the Canberra office with my chief of staff Stephen Campbell. With an increasing amount of legislation coming before the Senate I found I needed a research officer from the electorate office to be on hand during sitting weeks and Senate estimates.
As the electorate staff travel budget is limited it was not possible to bring two electorate staff officers with me and still have sufficient travel resources available for electorate travel as well.
Mark was advised by Steve Campbell, under my direction, that as his duties could be conducted from the Ballarat office and as a research officer was required to attend the Canberra office during Senate sitting periods he would not be required to travel to Canberra as often. Mark did not raise any complaint with me at the time or since.
Regarding the allegations made against Steve by Mark I can say that I have never seen a case of harassment, bullying or victimisation by Steve against any staff member including Mark Banwell and until Mark lodged his recent Workers Compensation claim I have had no complaints of this type raised by any staff members.
Stephen Campbell is my Chief of Staff and has my complete confidence. His discussions with Mark were done with my full knowledge and approval.
I am aware of the contents of the statement by Steve Campbell and am in agreement with the details it contains.
…
IS MR BANWELL ENTITLED TO COMPENSATION?
As indicated earlier, Comcare accepts, as does the Tribunal, that Mr Banwell suffered a psychiatric injury to which his employment made a significant contribution. He therefore suffered an ailment/disease as defined in the Act.
Mr Banwell stated in his claim form and later submissions that his adjustment disorder and/or depression was caused by a number of workplace incidents over a six month period. He told Dr Uko, Dr Greene and Ms Vrieze about the multiple causes of his condition dating back to late 2012. Mr Broadbent confirmed in his evidence that Mr Banwell had confided in him in February or March 2013 mentioning the performance appraisals that had taken place and the removal of Canberra duties.
The contributing factors Mr Banwell cited included performance appraisals, losing the opportunity to work in Canberra, lack of a formal job description and an incident where he believed he was called an idiot after a telephone had not been answered promptly. Once he obtained legal representation, his solicitors submitted that the only relevant event occurred on 2 May 2013 in relation to the unanswered phone and the use of the word idiot by Mr Campbell.
Ms Sion submitted that as a self-represented claimant, Mr Banwell was disadvantaged and might well have described the causes of his condition differently had he been acting on legal advice. She cited the 2 May 2013 incident as being the only causal factor of his condition on the apparently mistaken view that Mr Banwell’s first medical attendance about workplace issues was in early May 2013 after the phone incident. Mr Banwell later conceded that he had sought medical help as far back as December 2012. The Tribunal notes that Mr Banwell is a former army officer with tertiary qualifications, he has run small businesses, he has been a financial advisor, a political candidate and has worked as an electorate officer. He gave evidence of legislative interpretation he had undertaken. In his submission dated 20 November 2013 seeking Comcare’s reconsideration of his claim, Mr Banwell cited pertinent case law and put relevant arguments about what did and did not constitute reasonable administrative action. The Tribunal therefore does not accept Ms Sion’s submission and Mr Banwell’s assertions that he did not really know what he was doing when he lodged his claim and that his submissions to Comcare merely created factual background.
Comcare submitted that while Mr Banwell did suffer a psychiatric injury to which his employment made a significant contribution, the cause of that condition was multifactorial and included matters that would attract the exclusionary provisions set out in ss 5A(1) and 5A(2) of the Act. Comcare submitted that because of the case of Hart v Comcare [2005] FCAFC 16 was relevant in this matter. The Full Federal Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
Comcare suggested that Mr Banwell was not a credible witness and urged the Tribunal to find likewise, citing examples where inconsistent evidence had been given. However the Tribunal does not make such a finding. Mr Banwell may well have forgotten some events and may have been trying to put a different spin on the events from late 2012 to early May 2013 which he initially claimed as being relevant. The Tribunal, nonetheless, prefers the descriptions in the treating medical practitioners’ reports and those given by Mr Campbell and Mr Broadbent. There was also a relevant statement made by Senator Madigan cited above.
The Tribunal is satisfied that there were multiple work-related issues occurring between late 2012 and May 2013 which contributed to Mr Banwell’s disease.
Comcare submitted that the two performance reviews, the alteration of the location where Mr Banwell was to undertake his duties and his failure to gain promotion or a salary rise were relevant incidents of administrative action. Comcare submitted that those actions met the requirements of subsection 5A(2) of the Act and the general principles set out in Commonwealth Bank v Reeve ([2012] FCAFC 21. The Tribunal accepts that those occurrences could be classified as administrative actions and, in the case of the loss of Canberra travel, a failure to retain a benefit in connection with Mr Banwell’s employment.
Mr Banwell agreed that he had performance reviews in late 2012 and again in January 2013. The evidence before the Tribunal does not indicate that the performance reviews were carried out in a less than reasonable manner. Mr Campbell corroborated Mr Banwell’s evidence that he was told that he would no longer be the electorate officer accompanying Senator Madigan to Canberra. While Mr Banwell may have believed that he was being offered a promotion, Mr Campbell’s evidence and Senator Madigan’s statement show that this was not possible with the staffing profile and the timing of salary increments. It seems unlikely that it would be offered sooner rather than later given the budget and staffing profile.
Mr Banwell submitted that the performance appraisal after he returned from leave in January 2013 was unreasonable because Mr Campbell did not take notes during the interview and only had the letters EOA on his notepad. The Tribunal accepts Comcare’s comment that objectively, there is nothing unreasonable in this. The Tribunal also accepts that the opening comments that Mr Banwell said Mr Campbell had made stating that there would be less Canberra travel that year, do not appear to be unreasonable where the appraisal was at the start of the year. The Tribunal accepts Comcare’s contention that performance reviews can be carried out on an informal basis with no set procedure requiring a written statement of the discussion.
The Tribunal is satisfied, on the balance of probabilities, that the two performance appraisals conducted in November 2012 and in January 2013 were reasonable administrative actions taken in a reasonable manner in respect of Mr Banwell’s employee. As stated earlier, only one of the multiple causes of Mr Banwell’s employment related disease needs to be a reasonable administrative action for Mr Banwell not to be eligible for compensation (Comcare v Hart).
The Tribunal therefore is not required to analyse whether the event of 2 May 2013 which appears to have been the last straw for Mr Banwell constituted reasonable administrative actions taken in a reasonable manner.
The Tribunal finds that Mr Banwell’s adjustment disorder and/or depression does not come within the definition of injury in the Act and he is not entitled to compensation.
DECISION
The Tribunal affirms the decision under review.
87. I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]........................................................................
Administrative Assistant
Dated 28 January 2016
Dates of hearing 2 - 3 February & 10 March 2015
88. Counsel for the Applicant
89. Ms Renee Sion
90. Advocate for the Applicant
91. Michael Morrow
92. Solicitors for the Applicant
93. Morrow & McKenzie
94. Counsel for the Respondent
95. Joel Harris
96. Advocate for the Respondent
97. Brenton Lochert
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Statutory Construction
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Judicial Review
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Jurisdiction
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