Bernard Ting and Comcare
[2014] AATA 85
[2014] AATA 85
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4688
Re
Bernard Ting
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 21 February 2014 Place Sydney The Tribunal:
(a) Sets aside the decision under review and substitutes a decision that Mr Ting suffered an injury as defined in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and that the Respondent is liable to the Applicant under s 14 of the SRC Act.
(b) Remits the matter to the Respondent to assess Mr Ting’s specific claims for compensation;
(c) Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
........................[sgd]................................................
Deputy President RP Handley
Catchwords
COMPENSATION – definition of disease – ailment – mental disorder – must be outside the boundaries of normal mental functioning and behaviour - contributed to a significant degree by employment
COMPENSATION – definition of injury – excludes diseases or injuries resulting from reasonable administrative action taken in a reasonable manner – management of an employee’s performance generally reasonable – reasonable manner – consideration of the particular circumstances of the individual – administrative action not taken in a reasonable manner
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases
Comcare and Martinez (No 2) [2013] FCA 439
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86
Dunstan and Comcare [2012] AATA 567
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42REASONS FOR DECISION
Deputy President RP Handley
Mr Ting has applied to the Tribunal for the review of a decision made by Comcare to refuse his claim for compensation in respect of a psychological injury sustained during the course of his employment with the Australian Tax Office (ATO).
BACKGROUND
Mr Ting was born in January 1950 in China and is aged 64. He migrated with his family to Malaysia when he was aged eight and, at the age of 26, he migrated to Australia in 1976. Mr Ting graduated from the University of New England in 1987 with a degree in Financial Administration, majoring in Accounting, and later qualified as a Chartered Accountant. After working in a restaurant and then in a menswear store, in January 1988 he began work for the ATO.
Between mid-2001 and late 2002, Mr Ting experienced difficulties working with his acting supervisor, Mr Holloway. He went on stress leave from 5 August 2002 to 18 August 2002 and from 11 September 2002 to 18 September 2002. Mr Ting experienced similar difficulties with a new supervisor in 2004. At the ATO’s request, he underwent a fitness for work assessment in which Dr K Bruck, of Health Services Australia, noted that Mr Ting was unfit to perform his current duties as a result of anxiety. On 26 March 2004, Mr McCarthy had a meeting with his then supervisor, Mr Tankard, and a Human Resources representative, Ms McKenzie. Mr Ting told them about his current problems, including the employment-related factors that caused stress. At about this time, Mr Ting took a 3 week period of stress leave.
In 2005, Mr Ting was transferred to the ATO’s audit section. In early 2008, problems arose with a newly appointed manager of this section, Mr Minbatiwala. During his period working under Mr Minbatiwala’s supervision, from 2008 to early 2010, Mr Ting claims to have been subject to harassment and bullying. This allegedly caused significant stress. Mr Ting claims that he continued to be stressed after the appointment of Mr Siely as Acting Manager in 2010.
On 21 June 2010, Mr Ting was offered redundancy. At the time, he was employed in the audit section on a salary of approximately $62,000. Mr Ting accepted the redundancy offer and ceased employment with the ATO on 30 June 2010. However, prior to ceasing work, he took sick leave from 22 to 24 June 2010. He has not worked since 30 June 2010.
On 2 September 2011, Mr Ting made a claim for compensation for depression that arose from bullying and harassment during his employment with the ATO. Comcare denied liability in its decision dated 23 March 2012. An Authorised Review Officer affirmed this decision on 13 August 2012. This was on the basis that the depressive condition suffered by Mr Ting was a new condition that arose towards the end of his employment. The ARO also found that Mr Ting’s condition was substantially contributed to by action that the ARO regarded as reasonable administrative action. The ARO concluded that Comcare was not liable to pay compensation to Mr Ting for this reason. On 18 December 2012, Mr Ting applied to the Tribunal for a review of the ARO’s decision.
LEGISLATION AND ISSUES
Claims for workers’ compensation by Commonwealth employees are governed by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation for an injury suffered by a Commonwealth employee that results in incapacity for work. Section 5A(1) of the SRC Act defines an ‘injury’ as:
(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.
Section 5B defines a ‘disease’:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; ...
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.
The word ‘ailment’ is defined in s 4(1):
(1) In this Act, unless the contrary intention appears ...
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
There is no dispute that Mr Ting currently suffers from a mental disorder. The expert medical reports submitted by the parties, those of Psychiatrists Dr Selwyn Smith and Dr Ben Teoh, indicate that Mr Ting suffers from Adjustment Disorder with Depressed and Anxious Mood. This disorder constitutes an ‘ailment’ and, if contributed to, to a significant degree, by Mr Ting’s employment by the Commonwealth, also constitutes a ‘disease’ as defined in s 5B(1). One of the issues in dispute is when the injury occurred: if the mental disorder occurred prior to 13 April 2007, an earlier different version of the SRC Act would apply and the contribution required by Mr Ting’s employment would be a ‘material’ rather than a ‘significant’ contribution. In Dr Smith’s opinion, on which the Respondent relies, Mr Ting suffered an Adjustment Disorder on 30 April 2007. Dr Teoh said that in his opinion the onset of his disorder was in 2008. However, the Applicant contends that Mr Ting’s condition arose in 2004.
If the Tribunal is satisfied that Mr Ting suffered a mental injury, it must proceed to consider whether, pursuant to s 5A, that injury arose out of, or was suffered in the course of Mr Ting’s employment. The Applicant contends that Mr Ting’s condition was caused, or materially contributed to, by the harassment of which he was allegedly the victim.
If the Tribunal is satisfied that Mr Ting suffered a ‘disease’, it must decide whether Mr Ting’s mental condition was caused by reasonable administrative action. Section 5A excludes liability for injuries that are caused by reasonable administrative action taken in a reasonable manner in respect of an individual’s employment. This provision in the SRC Act also resulted from an amendment that took effect from 13 April 2007 and widened the exclusion for reasonable administrative action previously found in s 4(1) of the Act. The ARO refused Mr Ting’s claim for compensation on the basis of the reasonable administrative action exclusion.
The Act provides some guidance as to what constitutes reasonable administrative action. Section 5A(2) states:
(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.
Whether liability is excluded under the exception is dependent upon whether Mr Ting’s condition was suffered ‘as a result of’ reasonable administrative action. Reasonable administrative action must be an operative cause of the injury: Drenth v Comcare [2012] FCAFC 86, at [29]; Dunstan and Comcare [2012] AATA 567 [280]-[281].
Finally, if the Tribunal is satisfied that Mr Ting suffered from a disease arising out of or in the course of his employment by the ATO, and not as a result of reasonable administrative action taken by his employer, it must decide whether the injury resulted in incapacity for work or impairment. Section 14(1) of the SRC Act provides:
(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.
MR TING’S EVIDENCE
Mr Ting provided a statement dated 12 November 2013 and gave oral evidence at the hearing. He is married with two children, one of whom is still at university, the other having just graduated. His wife works part-time as a nurse. Mr Ting said he started work at the ATO in 1988 as a graduate trainee, working in four different areas over the course of the first year by three monthly rotation. Thereafter, he worked in the recoveries section for a year before moving to the auditing section. In January 2000, he was promoted to an ASO4 position and then moved to the GST section. Mr Ting said most of his professional development in respect to GST was by self-directed learning.
Mr Ting said his team leader in 2000 was Frances Brown with whom he worked well and who was impressed by his technical ability. In about mid-2001, Peter Holloway became his team leader with whom he found it hard to form a relationship. Mr Ting said Mr Holloway criticised his work but refused to help him when Mr Ting needed assistance, refused to allow Mr Ting to attend professional development courses, picked on him, and said Mr Ting should get the union representative involved because Mr Ting was going to be counselled. Mr Ting formed the impression that Mr Holloway was trying to sack him. At one point, Mr Holloway drew him into a meeting behind closed doors and told Mr Ting he wanted to sack him because he was not performing. Mr Ting said he was never formally counselled but was very depressed by Mr Holloway’s attitude and conduct which included picking on him for petty things and finding fault with his work.
Mr Ting said that as a result of Mr Holloway’s conduct towards him, which left him feeling worthless and not like a human being, Mr Ting was placed on stress leave from 5 to 18 August 2002 and from 11 to 18 September 2002. However, when Mr Ting returned from stress leave, Mr Holloway had been promoted and moved to another area. He was replaced by Penny McNaughton who was Mr Ting’s supervisor for about a year. Ms McNaughton assessed his work and said it was fine. She was replaced by John Tankard, according to the ATO, in July 2003. Mr Ting said Mr Tankard told him that he was taking too much sick leave and referred him to Health Services Australia for medical assessment. Mr Ting said he thought he was going to be sacked and was very upset and depressed. After the assessment, three weeks’ stress leave was approved. Mr Tankard went on leave and was replaced by Lynette Cardin in June 2004 with whom, Mr Ting said, he got on well.
When Mr Ting returned from leave, he was placed on an Employment Assistance Program and had a number of sessions with a Rehabilitation Consultant, Ms E McLean. Mr Ting said he found these sessions helpful. He was also told that his counselling had finished and not to worry about being sacked. By the date of the Rehabilitation Closure Report (15 October 2004), Mr Ting said he was managing well, with no anxiety, having been given advisory work which he could do. He was happy in his work but still felt the need for some psychological counselling. He acknowledged that he did not discuss this with his GP and when he enquired about counselling from “one or two places”, it was expensive and so he did not take it further.
Mr Ting acknowledged that he had health problems prior to working at the ATO, including an ulcer, and that in 2003/2004 he had time off work for physical problems.
In November 2004, Maggie Lo took over as team leader and, according to the ATO, remained in that position until September 2007. Mr Ting said Ms Lo assisted him with his work from time to time. She said his technical knowledge was very good but his report writing was not good. He was not given any specific assistance with this. Mr Ting said he had no problems working with Ms Lo nor with her successors Pam Devlin, Maxine Murphy and Choon Teoh.
It appears to have been around this time that an ATO officer was moved to Sydney from Canberra and, according to Mr Ting, took over Mr Ting’s position. Mr Ting said he was moved into the auditing section without any previous training. His team leader became Homi Minbatiwala. Mr Ting said he experienced difficulties in his work because of a lack of training and when he asked for leave to upgrade his skills Mr Minbatiwala “obstructed” him and even issued Mr Ting with a written directive to prevent him using his own leave to attend a seminar. Mr Ting said he complained about this to the union delegate who wrote a letter to Mr Minbatiwala on Mr Ting’s behalf asking Mr Minbatiwala to reconsider his decision, but to no avail.
Mr Ting said Mr Minbatiwala tried to discipline him about petty things and would constantly question him about his conduct. As a result, Mr Ting felt intimidated and harassed. On one occasion, Mr Minbatiwala questioned what Mr Ting “was good for”, making Mr Ting feel humiliated and depressed. In an email exchange on 6 November 2009, Mr Minbatiwala criticised Mr Ting’s typing errors, accused him of “slackness” in preparing a letter for a client which Mr Minbatiwala said was full of errors, and questioned whether this was due to Mr Ting’s “laziness”. (The Tribunal has been provided with copies of the emails in question.) Mr Ting said that at that time he was having difficulty with the Siebel software program. Mr Minbatiwala was also in the process of putting Mr Ting on a performance improvement plan but Mr Ting said he was never given a copy of this.
On 10 December 2009, Mr Ting said Mr Minbatiwala accused him, wrongly, of not working his required hours and put Mr Ting on a ‘standard day’, meaning that he had to work from 8.30 am to 4.21 pm daily and was denied use of the flex time system. This caused Mr Ting considerable difficulties because of peak hour commuting problems. Mr Ting said Mr Minbatiwala also forwarded personal emails concerning disciplinary matters to Mr Ting’s colleagues and transferred a case on which Mr Ting was working to another officer, thereby affecting his performance statistics and causing him humiliation and embarrassment.
Mr Minbatiwala went on 12 months leave in early February 2010 and was replaced by David Siely as Acting Team Leader. Mr Ting said he found it hard to communicate with Mr Siely. Notwithstanding this, Mr Siely put him back on flex time and did not counsel him about his work or how he was performing. Mr Ting said in the first few months of 2010, he just “buried my head and worked hard” notwithstanding that he was not totally well, although he did not consult a GP about his depression. Mr Ting agreed that he did not have a performance development agreement (PDA) when Mr Siely took over as his supervisor. He did not recall meeting with Mr Siely and Sue Kelly (ATO Assistant Director) to discuss a proposed PDA. Mr Ting told Mr Siely he would be able to undertake the case load proposed (a specific number of cases) in the draft PDA he was given. However, Mr Ting said specifying a number of cases is always arbitrary because it is difficult to know how complex any particular case is.
Mr Ting claimed that Mr Siely refused him flexi leave to attend an ATO careers expo in May 2010, and “pestered me to take a redundancy”. Mr Ting said that on the last day of the redundancy offer being open to him, Mr Siely came to talk to him and said that his counselling, started by Mr Minbatiwala, was still ongoing although Mr Siely had not undertaken any counselling with him at that time. Mr Ting did not want to go through that again and so he decided to accept redundancy. Mr Ting said but for the counselling, he would have liked to work for the ATO for a few more years and would have worked under Mr Siely, whom he otherwise liked as a boss. He now feels deprived of his accustomed life and of the right to work.
Mr Ting said he has been actively looking for work without success. He feels his ATO experience is like a scar. He sees his GP, Dr Tran, about every week for help with his mental state, and his psychiatrist, Dr Henson, about monthly or bimonthly, it being hard to get appointments with Dr Henson. Dr Henson has prescribed the antidepressant Axit which Mr Ting takes on an as needs basis because he it makes him very sleepy. He took one tablet last week and one the week before. Mr Ting said one packet of 20 antidepressants lasts about a month. He also takes multi-vitamins, Ginseng and Chinese herbs.
In cross-examination, Mr Ting was asked about a clinical note by one of the GPs Mr Ting consulted at the Forum Medical Centre, Dr Sim. Dr Sim records on 5 August 2002: “Patient under a lot of work stress, he has had been given a notice of a termination of his employment in 4 weeks.” Mr Ting denied knowing that his employment could not be terminated in this way. He thought he would be sacked in four weeks because his counselling with Mr Holloway was not going well and Mr Holloway had said he would get rid of him. In a clinical note dated 19 November 2002 by Dr Renganathan at the Macquarie Medical Centre, the doctor recorded: “Given notice to terminate in 6 weeks. Has worked 15 years. Feels Stressed.” Mr Ting said this might have been at the time he was told by Ms McNaughton, who replaced Mr Holloway, that she would continue with the counselling begun by Mr Holloway. Mr Ting thought if he did not do well in the counselling he would be sacked. However, at the end of the counselling, during which Ms McNaughton pointed out errors and made suggestions for improvement, she said he had done well.
Mr Ting was asked why he had not mentioned that he was suffering from stress and depression in the many other GP consultations he had had. He said he did not know he was depressed and, anyway, he tended to keep these things to himself. He acknowledged that on the day after he saw Dr Bruck (on 22 March 2004) for a fitness for work medical assessment, he did not mention his depression to the GP he saw at Chatswood Medical Centre.
Mr Ting was asked why he had not made a claim for compensation until 15 months after taking redundancy. He said he had not known why he was depressed, but Dr Tran identified his depression and said that he should make a claim.
MR SIELY’S EVIDENCE
Mr Siely provided a statement dated 10 January 2014 and gave oral evidence at the hearing. He has been employed by the ATO since 1995 and is currently a Technical Leader of an audit team. He said that he, like Mr Ting, was part of the original team whose job in the first six months of 2000 was to advise on the introduction of GST which commenced on 1 July 2000. Audit work started in the second half of 2000 when Business Activity Statements (BAS Statements) began to be lodged. Mr Siely said that before 2010, the last time he had worked with Mr Ting was in 2007. In early 2010, having worked with Mr Ting previously, he regarded his relationship with Mr Ting as “friendly”.
Mr Siely said the Siebel software system was introduced in the ATO in August/September 2006. Staff engaged in on-line training in using the system and there were advisers on-hand to provide assistance if a person was experiencing difficulty with using the system and there were also mentors within each team. Mr Siely said the system was used for all client contact and if an officer was unable to use the system, they would have “issues” with their work. Mr Siely said that the system was not difficult to use but he acknowledged that he initially had problems getting used to it.
Mr Siely said he had not worked under Mr Minbatiwala’s supervision and had not observed his supervision although he had had a desk close to Mr Minbatiwala’s. He does not recall Mr Minbatiwala not being responsive to someone saying ‘hello’ and does not recall any instances of either good or bad behaviour on his part.
Mr Siely said he took over as Acting Team Leader from Mr Minbatiwala in February 2010 while Mr Minbatiwala took 12 months leave. As part of the hand-over process, he and Mr Minbatiwala discussed the staff in the team and Mr Minbatiwala told him that he had been in the process of implementing a performance improvement plan for Mr Ting and that Mr Ting was interested in redundancy. Mr Siely said Mr Minbatiwala did not provide him with a copy of Mr Ting’s performance improvement plan and he does not know whether Mr Minbatiwala had provided a copy of this to Mr Ting. Mr Siely acknowledged that such a plan should be given to the person concerned. Mr Minbatiwala offered to come in for a day after his leave had commenced to provide further information for Mr Siely but apparently Mr Minbatiwala’s manager did not permit this. As a result, Mr Siely never saw Mr Ting’s performance improvement plan and was never provided with copies of Mr Ting’s previous performance development agreements (PDAs). Mr Minbatiwala did, however, tell Mr Siely that Mr Ting did not have a current PDA.
Mr Siely explained that performance improvement plans are part of an informal process of counselling and distinct from PDAs which are a requirement for all ATO staff. Both should be documented. There is also a formal process of counselling that, if unsuccessful, can lead to a warning that a person’s performance is unsatisfactory. It was the informal process of counselling in which Mr Minbatiwala had been engaged with Mr Ting.
Mr Siely said that on 14 April 2010, in the company of his Assistant Director, Ms Kelly, he met with Mr Ting to discuss a PDA for Mr Ting, all ATO staff being required to have one. He provided Mr Ting with a draft PDA and asked him to consider this and if he was happy with it, to sign and return it to Mr Siely.
On 20 April 2010, Mr Siely received a phone call from Diana Johnston in the Personnel section informing him that the names of two members of his team had been put forward as possible candidates for redundancy, one of these being Mr Ting. Mr Siely said he had not put forward Mr Ting’s name. He assumes that either Mr Minbatiwala or another manager had done so. This would probably have been because of performance problems.
Mr Siely said at the end of April 2010, he asked Mr Ting whether he was going to sign the proposed PDA. Mr Ting said that he could not sign it because he could not meet the performance requirements. He said he did not understand how to process and record audits in Siebel. Mr Siely said he then asked Mr Ting whether he was interested in a redundancy. Mr Ting said he would think about it. About a week later, on 4 May 2010, Mr Siely arranged a telephone hook up with Ms Johnston, a union representative, and Mr Ting to discuss the redundancy process. Mr Siely said he did not express any view about whether Mr Ting should accept a redundancy. Mr Ting asked what would happen if he did not take a redundancy. Mr Siely responded that Mr Ting would be assessed against performance measures like everyone else.
Mr Siely said his view was that if Mr Ting wanted a redundancy, he should accept the offer. Mr Siely denied having asked Mr Ting on 2 June 2010 whether he was going to accept the offer. Mr Siely said it would not have been appropriate for him to do so. He said he had no further discussion with Mr Ting about the offer of redundancy after the meeting on 4 May 2010. Specifically, Mr Siely denied ever having told Mr Ting that if he did not accept the offer of redundancy, there would have to be a process of formal counselling or that he would be sacked if he did not take a redundancy. Mr Siely said that on 2 June 2010 he gave Mr Ting four ‘new to business checks’ cases having previously given him three such cases on 20 May 2010. Mr Siely denied saying it was essential for Mr Ting complete these before leaving. Mr Siely said he did not, at that time, know whether Mr Ting had decided to take the redundancy.
Mr Siely acknowledged that Mr Ting appeared to struggle with his work. He was doing new to business checks which were simple audits. New to business checks were not supposed to be undertaken by Mr Ting’s team, for which it was not funded and which would not count towards the team’s overall performance. Mr Siely had a discussion with Mr Ting about moving him back to audits from new to business checks and Mr Ting said he did not have a problem with this.
Notwithstanding this discussion, Mr Siely did not take any steps to move Mr Ting back to audit work. He said he thought Mr Ting would probably accept the offer of redundancy, both as a result of talk around the office and the impression he formed that Mr Ting was seeking advice on whether to take redundancy, for example by contacting his Super Fund.
Mr Siely said he could not remember whether Mr Ting was still required to work ‘standard hours’ at the beginning of 2010. However, after an email from Mr Ting questioning him about this, Mr Siely confirmed that this was not the case. Mr Siely acknowledged that being put on standard hours and being denied access to flexitime, is a punishment of sorts.
With regard to the ATO Careers Expo on 26, 27 and 28 May 2010, which was designed for ATO staff to find out more about other areas in the ATO referred to by Mr Ting, Mr Siely said Sydney staff were permitted to attend one day of the three days. Mr Siely recalled seeing Mr Ting at the Expo on 26 May 2010. From looking at Mr Ting’s timesheets, he assumes Mr Ting did attend the Expo. Mr Siely could not recall declining a request from Mr Ting to use flex leave to attend the conference. He rarely declined such applications.
With regard to paying out any positive flex balance on leaving the ATO, Mr Siely said that around 21 June 2010 he recommended to Mr Ting that he should try and reduce his positive balance to zero in accordance with the ATO (General Employees) Agreement 2009. Paying out a positive balance on a person’s leaving is discretionary and Mr Siely declined to recommend this for Mr Ting. He cannot recall his reasons. (It appears from documents attached to Mr Siely’s statement that Mr Ting’s flex balance as at 30 June 2010 was 7 hours 11 minutes.)
THE EXPERT MEDICAL EVIDENCE
The Tribunal was provided with expert reports from two Psychiatrists, Dr Selwyn Smith and Dr Ben Teoh. Dr Smith’s reports are dated 19 April 2013, 29 May 2013 and 19 September 2013. Dr Teoh’s report is dated 5 August 2013. Dr Smith and Dr Teoh gave evidence concurrently on the second day of the hearing having had a brief discussion beforehand to identify areas of agreement and disagreement. They agreed that:
·Mr Ting has experienced an Adjustment Disorder with Mixed Depression and Anxious Mood as a result of his work experience.
·There is no evidence of PTSD or Major Depression as reported by Mr Ting’s treating Psychiatrist, Dr K Henson.
·Mr Ting could engage in ‘suitable duties’ and then, after a period of time, full-time duties. (Dr Teoh said that, in his opinion, the initial suitable duties should be part-time to allow Mr Ting to regain confidence. Dr Smith agreed that because of Mr Ting’s current despondency and time out of the workforce, he would initially need suitable support.)
·Mr Ting could continue psychiatric treatment at this stage and his treatment could be reviewed by an independent Psychiatrist. (Both Dr Smith and Dr Teoh expressed uncertainty about whether Mr Ting’s current psychiatric treatment is of benefit. Dr Smith commented that sporadic taking of antidepressants - Mr Ting is currently taking medication on an ‘as needs’ basis - is generally not effective.)
In his report dated 5 August 2013, Dr Teoh said that in his opinion “Mr Ting’s presentation is consistent with work-related stress”. He said that while, initially, Mr Ting suffered stress at work in 2002, his symptoms were insufficient for a psychiatric diagnosis. However, this changed in 2008 when a new manager took over and Mr Ting suffered significant stress as a result of what he claims was bullying and harassment: Mr Ting’s symptoms at that time were sufficient to support the diagnosis on which Dr Teoh and Dr Smith agree.
In his report dated 19 April 2013, Dr Smith said that, in his opinion, Mr Ting was exposed to occupational conflict, “Against a background of what he deemed to be bullying and harassing behaviour and concerns over the possibility that he would be dismissed.” In 2010, Mr Ting felt vulnerable and accepted voluntary redundancy. Dr Smith said Mr Ting’s “condition appears to have fluctuated in response to his perception of his manager’s responses towards him” and he has not suffered a permanent impairment. Dr Smith described Mr Ting as a sensitive, highly anxious man who has, nevertheless, expressed his desire to work. Dr Smith stated that Mr Ting’s prospects for rehabilitation are good: if he obtains suitable employment, Mr Ting will need no further psychiatric intervention. Dr Smith dated the onset of Mr Ting’s Adjustment Disorder to 30 April 2007 (when he consulted his GP, Dr KY Sim at the Forum Medical Centre about work-related stress and feeling depressed).
SUBMISSIONS
Mr Hourigan, for Mr Ting, said the diagnosis agreed by the two expert medical witnesses should be accepted. However, the date of onset of the condition is a live issue. The Applicant contends that the date of injury is April 2004 when Dr K Bruck made a diagnosis very close to that made by the two expert witnesses. Although the Occupational Physician, Dr E Metalani (report dated 25 April 2004), to whom Mr Ting was also referred, did not refer to a diagnosis, he recommended treatments similar to those proposed by Dr Bruck.
Mr Hourigan said Mr Ting’s condition arose as a result of three situations: the conduct of Mr Holloway, of Mr Minbatiwala and, to a lesser extent, of Mr Siely. Mr Hourigan said Mr Ting’s evidence was credible and should be accepted and the Tribunal was entitled to draw inferences from the fact that the Respondent had not called either Mr Holloway or Mr Minbatiwala to give evidence. Mr Hourigan referred to various incidents to illustrate his contention that, in particular, Mr Minbatiwala’s attitude and conduct towards Mr Ting was similar to that of a schoolyard bully – rude and intimidating.
Mr Hourigan contended that Mr Ting took redundancy because he felt that he had no other option. There was a history of insufficient support and training for Mr Ting. Even Mr Siely acknowledged that he thought redundancy was probably the appropriate course for Mr Ting.
Miss Henderson, for the Respondent, contended that the documents indicate a history of Mr Ting having work performance issues. This is apparent from much of the evidence, including that involving Mr Holloway, Ms McNaughton, Mr Tankard, Mr Minbatiwala and Mr Siely. Mr Ting appears to have been fearful because of things he imagined such as his being given notice of termination (of which he told two GPs) and his interpreting Mr Tankard’s referring him to Dr Bruck for assessment as an indication that Mr Tankard was trying ‘to get rid of him’.
Miss Henderson noted that while Mr Ting claims to have been very stressed at work, he rarely mentioned this in the many consultations he had with GPs over the period from 2002. In any event, stress does not of itself constitute evidence of psychiatric illness. For a mental condition to be compensable, it must be “outside the boundaries of normal mental functioning”: Comcare v Mooi (1996) 69 FCR 439 at 444, per Drummond J.
Miss Henderson noted that in early 2010, Mr Ting was the only person in his team without a current personal development agreement (PDA). He was also undertaking new to business checks that Mr Siely stated were not part of the work of team and would not count towards the assessment of its performance. Mr Siely attempted to progress completing a PDA but Mr Ting was not prepared to sign the proposed PDA because he said he could not cope with the work. There was, however, no alternative work in the team.
Miss Henderson noted that the two expert witnesses agreed on their diagnosis and contradicted that of the treating psychiatrist, Dr Henson. She said the scant treatment Mr Ting is currently receiving casts doubt on the severity of Mr Ting’s condition.
With regard to whether Mr Ting’s injury is attributable to reasonable administrative action taken in a reasonable manner, Miss Henderson said Mr Ting’s concern that he was going to be sacked related to long standing performance issues from 2001 onwards noted by a series of his supervisors. By 2010, the ATO had no option but to put him on a performance improvement plan. Mr Ting feared being put on such a plan could lead to him being sacked, and so he decided to accept a redundancy. The record of contact with Mr Ting provided by his Union indicates that he sought advice from the Union about the offer of redundancy on approximately nine occasions between 14 April 2010 and 21 June 2010.
Ms Henderson said it was not unreasonable for the ATO to offer Mr Ting a redundancy in view of the fact that he told Mr Siely that he could not do the work proposed in the proposed PDA and the work he was undertaking – new to business checks – was no longer available to him in his team.
DISCUSSION
I am satisfied from the evidence of the two expert witnesses, Psychiatrists Dr Teoh and Dr Smith, who agreed on their diagnosis, that Mr Ting has experienced an “Adjustment Disorder with Mixed Depression and Anxious Mood as a result of his work experience”. Dr Teoh said that while Mr Ting suffered stress at work in 2002, his symptoms then were insufficient for a psychiatric diagnosis. Dr Teoh attributed the onset of Mr Ting’s condition to 2008 after Mr Minbatiwala took over as Mr Ting’s supervisor. Dr Smith attributed the onset to 30 April 2007 when he first consulted his GP, Dr Sim about work-related stress and being depressed.
I note that Mr Ting consulted three GPs about ‘stress’ in 2002:
·On 5 August 2002, he consulted Dr KY Sim at the Forum Medical Centre, and Dr Sim recorded that Mr Ting “had been under a lot of work stress, he had been given a notice for termination of his employment in 4 weeks”. Dr Sim wrote Mr Ting a medical certificate covering the period 5 to 18 August 2002.
·On 11 September 2002, he consulted Dr G Artinian at the Chatswood Medical Centre about stress and abdominal pain, and Dr Artinian wrote Mr Ting a medical certificate covering a period from 11 September 2002. The clinical note makes no mention of the stress being work-related.
·On 19 November 2002, he consulted Dr R Renganathan at the Macquarie Medical Centre, who noted that Mr Ting had been “given notice to terminate in 6 weeks … feels stressed.”
I am not satisfied from this evidence that Mr Ting was suffering anything more than stress and, equally, I am not satisfied from the evidence that his condition “was outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 439, 444.
On 22 March 2004, Mr Ting was assessed by Dr K Bruck of Health Services Australia as to his fitness for work on a referral from Mr Ting’s then Team Leader, Mr Tankard, who was apparently concerned about the amount of sick leave Mr Ting had been taking. I note that Mr Ting also suffered from an ulcer and other physical problems, but Dr Bruck’s focus was on the stress and depression Mr Ting reported. Mr Ting’s evidence is that he perceived being referred for assessment as an indication that he was going to be sacked and that he was very upset and depressed as a result. Dr Bruck diagnosed Mr Ting as suffering from “an adjustment disorder with stress and depression” and said he was unfit for his current duties. Mr Ting’s recollection is that following this he had three weeks’ sick leave. On 25 April 2004, Mr Ting was assessed by an Occupational Physician, Dr E Matalani, who, while not specifically making a diagnosis, noted Dr Bruck’s diagnosis and found Mr Ting’s “mood was depressed and he displayed melancholic features”. Dr Matalani recommended that Mr Ting attend counselling, “attend stress management and problem solving training so as to be equipped to adequately cope with stresses at work”, but return to his team and be gradually introduced to more complex work with appropriate training and mentoring.
Following this, Mr Ting was referred to a Rehabilitation Consultant, Ms E McLean, who met with Mr Ting on a number of occasions between May and September 2004 with his team leader Mr Tankard and, on one occasion, with Ms Carden who replaced Mr Tankard. In her closure report dated 15 October 2004, Ms McLean concluded that “to date Mr Ting is managing his work duties with no anxiety and his supervisor has stated there are no work performance issues”.
In my view, while Mr Ting appears to have been suffering a stress-related mental condition at the time of diagnosis by Dr Bruck in April 2004, the condition appears to have resolved by about October 2004. Mr Ting did not pursue counselling and, according to his GPs’ clinical notes, did not raise work stress with them until he consulted Dr KY Sim on 30 April 2007 when Dr Sim recorded that Mr Ting was suffering work stress and unable to concentrate, and “Patient admitted to feeling depressed but is reluctant for treatment”. There is no further reference to stress in the clinical notes in the period leading up to Mr Ting taking redundancy, although Mr Ting is recorded as having consulted his GPs in relation to a variety of physical conditions.
Mr Ting’s evidence about his relationship with his team leaders over the period after 2004 indicates that he did not have further problems until Mr Minbatiwala became his team leader in January 2008. Mr Ting accuses Mr Minbatiwala of intimidating and harassing him during the two years of his team leadership until Mr Siely took over in February 2010. Ms Henderson informed me that Mr Minbatiwala has left the ATO, and he was not made available to give evidence at the hearing. In terms of the date of onset of the ‘Adjustment Disorder with Mixed Depression and Anxious Mood’ diagnosed by Dr Teoh and Dr Smith, there is no contemporaneous medical evidence in this two year period, but given Mr Ting’s evidence and Dr Teoh’s opinion, I find that it is likely that onset of the condition occurred in about 2008. I am not satisfied on the evidence before me that the stress-related condition suffered by Mr Ting in 2004 was “outside the boundaries of normal mental functioning”: Comcare v Mooi. I make this finding for the purpose of determining whether the pre 13 April 2007 or post 13 April 2007 provisions in the SRC Act apply.
My finding that onset occurred in about 2008 means that the amendments to the SRC Act that took effect on 13 April 2007 and in particular, the definition of ‘injury’ in s 5A of the Act and the definition of ‘disease’ in s 5B apply in this case. Section 5A(1) excludes from the definition of ‘injury’ “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”. The definition of ‘disease’ in s 5B(1) requires that ailment or aggravation of the ailment “was contributed to, to a significant degree, by the employee’s employment” (as opposed to a ‘material’ contribution under the pre 13 April 2007 requirements).
I am satisfied from Mr Ting’s evidence and the evidence of the two expert witnesses that the Adjustment Disorder suffered by Mr Ting was contributed to, to a ‘significant degree’ (as defined in s 5B(3)), by his employment. However, the more difficult question is whether his mental condition was “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”, having regard to the examples included in s 5A(2).
In my view, it is the period from January 2008 (when Mr Minbatiwala became Mr Ting’s team leader) to 30 June 2010 (Mr Ting’s terminating his employment by accepting the offer of redundancy) which should be the focus of enquiry as to reasonable administrative action. However, it is clear from the evidence of previous years that Mr Ting had an ongoing problem with performance in his employment to which he was highly sensitive and criticism of which caused him stress. Of Mr Ting’s team leaders, the following have indicated that there were problems/issues with his work performance: Peter Holloway (team leader from September 2001 to October 2002), Penny McNaughton (October 2002 to July 2003), John Tankard (July 2003 to June 2004), Maxine Murphy (October 2007 to January 2008), Homi Minbatiwala (January 2008 to February 2010) and David Siely (February 2010 to June 2010).
To enliven the exclusion in s 5A the injury must be ‘as a result of’ reasonable administrative action conducted in a reasonable matter. The Full Federal Court decision in Hart v Comcare (2005) 145 FCR 29, at [21]-[23], establishes that where there are multiple causes, what is necessary is that the reasonable administrative action be a cause of the condition. There is no requirement that it be a significant or material cause, merely an operative one: Drenth v Comcare [2012] FCAFC 86, at [29]; Dunstan and Comcare [2012] AATA 567 [280]-[281].
The Full Federal Court in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 stated that management of an employee’s performance involving “specific administrative action directed to the person’s employment itself” is the action excluded from the definition of ‘injury’ by s 5A(1) of the SRC Act: see Rares and Tracey JJ at [60]. In my view, administrative action such as performance improvement planning directed to the individual employee is administrative action that is encompassed within the intended meaning. I am satisfied that administrative action taken to try and improve an employee’s performance where that person’s performance is deemed to be below the required standard would, in general terms, be considered reasonable. However, the specific action must be scrutinised to ascertain whether it is reasonable in the particular circumstances and whether it was taken in a reasonable manner.
With respect to ‘reasonable manner’, the Federal Court in Comcare and Martinez (No 2) [2013] FCA 439 at [83] agreed with the following statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
One of the difficulties in reviewing Mr Minbatiwala’s conduct towards Mr Ting is that the Tribunal has very little evidence to rely on other than Mr Ting’s evidence. As noted above, Mr Minbatiwala has left the ATO and was not made available to give evidence. Moreover, the ATO states it lacks relevant documentary or electronic evidence with respect to Mr Ting’s claims about Mr Minbatiwala’s conduct. Mr Siely gave evidence that none of Mr Minbatiwala’s records, for example as to the performance improvement plan that Mr Minbatiwala may have instituted with Mr Ting, were provided to him when he took over as Acting Team Leader in February 2010 when Mr Minbatiwala went on 12 months leave. As I indicated during the course of the hearing, I find the lack of relevant ATO records strange.
The other matter which should be taken into consideration is what appears to be ultra-sensitivity on Mr Ting’s part to comments which he perceives reflect adversely on his expertise or ability to perform to the required standard.
In my view, doing the best I can on the basis of what is admittedly rather sparse evidence, it appears that the conduct of Mr Minbatiwala in managing Mr Ting’s performance was not taken in a reasonable manner. In Georges and Telstra Corporation [2009] AATA 731, the Tribunal stated, at [23]:
Implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry could be considered.
It ought to have been apparent to Mr Minbatiwala over the two years during which he was Mr Ting’s Team Leader and in the light of the past history of managing Mr Ting to which, presumably, Mr Minbatiwala had access as his immediate manager, that Mr Ting was sensitive to criticism of his performance. Mr Minbatiwala should have taken this into account in the way he approached his management responsibilities.
Mr Ting’s evidence is that Mr Minbatiwala’s conduct involved bullying, harassment and intimidation. I have not been provided with any specific evidence as to how Mr Minbatiwala undertook his responsibilities although Mr Siely, who had a desk near Mr Minbatiwala’s but was not at that time a member of the same team, was not aware of problems.
The impression I have formed is that Mr Minbatiwala’s conduct was not reasonable. While management of Mr Ting’s performance was, in the circumstances, reasonable administrative action, I am not satisfied that Mr Minbatiwala conducted himself in a reasonable manner. At the very least, he was insensitive in managing Mr Ting; more likely, his conduct was intimidatory.
This is highlighted by a number of email exchanges between Mr Minbatiwala and Mr Ting. On 6 November 2009, Mr Minbatiwala stated in response to some alleged errors in Mr Ting’s work: “Has your eyesight got to do [sic] anything with these errors or is it your laziness”. An incident where Mr Ting left his keys in a drawer cabinet led to Mr Minbatiwala writing to him on 5 March 2009: “I work hard with you in an attempt to improve you and as I put it ‘make you a professional ATO officer’, you do not appear to be helping yourself”. It should be noted that Mr Ting regarded himself as a hard-working, conscientious and skilled employee. Imputations that strongly attacked his professionalism would have been, and were, extremely insulting to Mr Ting. Such exchanges indicate an approach to managing Mr Ting that was insensitive to Mr Ting’s prior history of workplace stress, which should have been known to Mr Minbatiwala, and at times took the form of personal insults.
Mr Siely, the last of Mr Ting’s team leaders, who gave evidence at the hearing, gave a full and frank account of his involvement – he was a credible witness – and, in my view, his conduct in managing Mr Ting’s performance was taken in a reasonable manner. However, by the time of Mr Siely’s involvement as Acting Team Leader, Mr Ting had already suffered an injury and while Mr Siely’s actions were taken in a reasonable manner, during the five months between February and June 2010, Mr Ting’s injury appears not to have resolved: Mr Ting’s reaction to events were coloured by what had happened previously during Mr Minbatiwala’s team leadership. Mr Ting’s condition was not a result of the conduct of Mr Siely in managing Mr Ting; it was a result of the conduct of Mr Minbatiwala.
I therefore find that Mr Ting suffered an injury arising out of or in the course of his employment by the ATO and I am satisfied from the evidence of the expert witnesses that this caused incapacity for work. I also note the comments of the two expert witnesses about the efficacy of Mr Ting’s current treatment and the extent of any ongoing incapacity will need to be carefully assessed.
I find that the ATO is liable under s 14 of the SRC Act for the injury suffered by Mr Ting arising out of or in the course of his employment and I remit the matter to the Respondent to assess Mr Ting’s specific claims for compensation.
DECISION
79. The Tribunal:
(d) Sets aside the decision under review and substitutes a decision that Mr Ting suffered an injury as defined in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and that the Respondent is liable to the Applicant under s 14 of the SRC Act.
(e) Remits the matter to the Respondent to assess Mr Ting’s specific claims for compensation;
(f) Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
.....................[sgd]...................................................
Associate
Dated 21 February 2014
Date(s) of hearing 11 to 13 February 2014 Date final submissions received 13 February 2014 Counsel for the Applicant A Hourigan Solicitors for the Applicant Beston Macken McManis Solicitors Counsel for the Respondent R Henderson Solicitors for the Respondent Sparke Helmore Lawyers
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