Boglari and Ron Finemore Transport Service Pty Ltd (Compensation)

[2021] AATA 3320

Boglari and Ron Finemore Transport Service Pty Ltd (Compensation) [2021] AATA 3320 (17 September 2021)

Division:GENERAL DIVISION

File Number:          2019/2795

Re:Boldizsar Boglari

APPLICANT

AndRon Finemore Transport Service Pty Ltd

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:17 September 2021

Place:Melbourne

The Tribunal sets aside the reviewable decision of 13 May 2019 and in substitution decides that the Applicant is entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

.........................................................................

R Cameron, Senior Member

Catchwords

Depression – major depression – anxiety disorder – whether those conditions arose out of or during the course of employment – entitlement to compensation – whether injury significantly contributed to by employment – decision set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Comcare v Drinkwater (2018) 260 FCR 150

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Federal Broome Company Pty Ltd v Semlitch (1964) 110 CLR 626

Secondary Materials

Heavy Vehicle (Fatigue Management) National Regulations

Heavy Vehicle (Vehicle Standards) National Regulation

REASONS FOR DECISION

R Cameron, Senior Member

17 September 2021

INTRODUCTION

1. The Applicant seeks a review of a decision made on 13 May 2019 denying liability under the Safety, Rehabilitation and Compensation Act1988 (“the Act”) for a condition of DSM 5 adjustment disorders[1] of depression, major depression, and anxiety sustained on 12 December 2018 (“the reviewable decision”).[2]

   [1] Diagnostic and Statistical Manual of Mental Disorders (“DSM 5”).

   [2] Document T 55 of the T documents.

   ISSUES FOR DETERMINATION BY THE TRIBUNAL

2. The Applicant contends and the Tribunal agrees that the following issues should be determined in his favour if a decision of liability under s 14 of the Act is to be made. Those issues are whether:

   a. the Applicant is an employee for the purposes of the Act;

   b.    the Applicant suffered an injury being a psychiatric condition beyond the boundaries of normal mental functioning;

   c.     the injury was an ailment, or the aggravation of an ailment, to which his employment contributed to a significant degree or was an injury, or the aggravation of an injury, being a mental injury that arose out of or in the course of his employment;

   d.    the injury resulted in either incapacity for work or impairment or he obtained medical treatment that was reasonable to obtain for the injury; and

   e.    there are no circumstances giving rise to any exclusion from liability.

3. It is not contentious that the Applicant was a relevant employee for the purposes of the Act. This was acknowledged in the reviewable decision. Additionally, documentary evidence was before the Tribunal which formed his contract of employment.[3] He commenced as a full-time interstate linehaul driver with the Respondent on 1 October 2018.[4] He had previously been employed by the Respondent as a casual linehaul driver  from 2 April 2018.[5]

   [3] T-Documents T3/4 being a letter of offer and attachment dated 24 September 2018 and signed by the Applicant on 25 September 2018 and T4/5 being a "Position Description, Driver-General" also signed by the Applicant.

   [4] T-Documents T52/111.

   [5] T-Documents T55/123.

4. The Respondent’s submissions specifically referred to several provisions of the Applicant’s contract of employment with it as a full-time Road transport driver. It is appropriate to mention those provisions in these reasons. The “Key Responsibilities” of the Applicant were listed as follows:

   a)to report any pickup/delivery difficulties to the operations personnel for rescheduling or customer contact and advise that the earliest possible time any delivery cannot be carried out;

   b)maintain accurate details of all driving and working hours in accordance with the National Heavy Vehicle Standards for Driving Hours;

   c)perform his driving activities in accordance with the National Heavy Vehicle Standards for Driving Hours; and

   d)he may be subject to irregular work schedules, temperature and weather extremes, long trips, tight delivery schedules, delays en route and other stresses related to driving a large commercial vehicle on crowded streets and highways in all kinds of weather.[6]

   The Applicant’s Hours of Duty were described as follows:

   (a)he was required to be available 7 days a week, capable of driving up to 72 hours in a six-day period in accordance with statutory authority regulations or as outlined in the applicable Enterprise Bargaining Agreement;

   (b)he must be prepared to undertake trips/tasks that may necessitate him spending overnight away from the home location when/where required and/or as directed by company management; and

   (c)No driver was required to exceed regulation driving hours under any circumstance.[7]

   [6] T-Documents T4/7-13.

   [7] T-Documents T4/12.

5. Mention should be made of the fact that in April 2018 the Applicant applied for a driver training position with the Respondent. He did so as he had previous experience in driver training and education. He was not successful with that application and took the position as a casual linehaul driver as noted.

6. Again, in September 2018, he applied for a driver training position with the Respondent and was similarly unsuccessful after completing an interview. After commencing full-time work as an interstate linehaul driver, as will be touched on later, the Applicant continued with some enthusiasm to seek appointment as a driver trainer with the Respondent.

   Some observations on the Applicant’s evidence

7. It is appropriate given the length of this hearing and the highly contested way in which this application was conducted to make some observations about the Applicant’s evidence. He was in the witness box for four days. He gave evidence in chief and was extensively and searchingly cross examined by Mr Clark of counsel for the Respondent.

8. The Applicant demonstrated an awareness of all around him and that he is not an unintelligent man. He is obviously very well educated and eloquent. One who is very capable of engaging in critical thinking and problem-solving. Additionally, he had the hallmarks of a person who is careful and methodical. He demonstrated that he could and was very much alive to, protecting his own interests at all times. Several instances of these capabilities, or perhaps propensities, readily emerged in the course of his evidence. For instance, on his telephone he had a program (frequently referred to by the American term “App”) which enable him to tape record all of his phone calls. There were occasions where he promptly sent to his employer (the Respondent) carefully constructed and thought out emails concerning various topics.[8] There was of course his evidence concerning the telephone conversation he had with an officer of the National Heavy Vehicle Regulator on 20 September 2018. It was a lengthy, careful, probing phone call designed to and indeed successful in eliciting significant detail.

   [8] By way of example his email of 7 December 2018, T-Document T5.

9. Unfortunately, there were qualities of his evidence or characteristics, which were not satisfactory. Frequently he was loquacious and engaged in lengthy responses that were simply not called for by the questions asked of him. These questions were asked both by his counsel, and counsel for the Respondent. Additionally, on several occasions if not frequently, his responses did not answer the question that was put to him. This was although the question was a simple one with which he could have been in no doubt about the response required. Often these responses turned into a speech, or were designed to protect his interests, or advance his case as he saw it. Regrettably, this approach to his evidence was of no assistance to the Tribunal and in several cases, of no assistance to his case, if not positively detrimental.

10.  There were several occasions where his evidence had an air of unreality, if not embellishment or unreliability to it. By way of example (this and the following examples are not comprehensive), there was the obvious personal animus that he had to Jason Malseed that emerged that coloured his evidence concerning his dealings with him.

11. 

Another unsatisfactory aspect of his evidence concerned the tape recording and downloading of several phone calls. His evidence was that the tape recordings produced to the Tribunal and referred to in his supplementary witness statement were downloaded to his laptop from his telephone. Such phone calls, it will be recalled, having been recorded by through of the use of the App installed on his phone. His evidence was that he selectively downloaded phone calls that he considered relevant to his dispute and the prosecution of this application against the Respondent. There were several phone calls that he referred to in his supplementary statement that were surely highly relevant to the Application that he did not download to his computer. These phone calls included those with Mr Malseed on

7 and 12 December 2018, Mr Kennedy on 17 December 18 and with Ms Waters on

4 January 2019. The Tribunal cannot accept his explanation as to why these phone calls were not downloaded. Unfortunately, his evidence was that he lost his mobile phone in May 2019 and had no way of retrieving the remaining phone calls which he had tape-recorded from either the App provider or in what is known as the “Cloud” (being an online data storage medium).

12.  There is another matter that the Tribunal cannot accept concerning the Applicant’s evidence. That was the evidence that emerged from Dr Mobilia’s clinical notes. They revealed treatment for several conditions including depression, stress, the prescription of various medication and other matters. These matters were highly relevant to the mental health care professionals whom he subsequently saw, namely Dr Sowden and Dr Ventura. It is inconceivable to the Tribunal, having observed the Applicant and the qualities he possesses as outlined earlier, including those of being careful and methodical, that he did not think to mention them to those doctors. His explanation for this failure was not plausible.[9] The failure to do so does not reflect at all well upon him and leads the Tribunal to question his reliability in many respects. It has the hallmarks of a witness who was selective in what he did and what he told the Tribunal. He was likely selective in the belief that he would assist his case and detract from that of the Respondent.

[9] In the witness box he gave several different explanations including that he didn't remember what happened 15 years ago that he was under situational stress and that what he suffered in the past bore no resemblance to his current symptoms.

13.  Notwithstanding the several unsatisfactory features of the Applicant's evidence, there were aspects of his evidence relevant to this application that the Tribunal accepts. They will be touched on in the course of these reasons.

THE MEDICAL EVIDENCE

14.  The medical evidence was largely consistent and accorded with the clinical diagnosis of the Applicant’s condition.

15.  In a Certificate of Capacity of 12 December 2018, Dr Mobilia diagnosed the Applicant with a DSM 5 adjustment disorder[10] of depression, major depression and anxiety disorder. [11] His viva voce evidence was to the same effect. It should also be noted that Dr Mobilia has been the Applicant’s treating general practitioner for some years. He gave evidence from the witness box that he had also previously in his career been the psychiatric registrar at a rural hospital.

[10] Diagnostic and Statistical Manual of Mental Disorders (“DSM 5”).

[11] T-Documents T14/ 24-25.

16.  Dr Sowden, a clinical psychologist called on behalf of the Applicant, prepared two reports dated 11 March 2019[12] and 4 November 2019.[13] The first report stated that she considered the Applicant presenting with symptoms of an adjustment disorder with anxiety and depressed mood. His responses to the Depression and Anxiety Stress Scale (‘DASS-21’) placed his symptoms of depression and anxiety in the severe range and his symptoms of stress in the moderate range.[14]  

[12] T-Document T45/85-86.

[13] Exhibit A3.

[14] T-Document T45/85-86.

17.  In the second report of 4 November 2019, which is the more extensive of the two, she expressed the opinion that the Applicant was suffering from a major depressive disorder, single episode moderate severity along with severe anxiety.[15] She observed that the Applicant remained preoccupied with the risk of drivers being involved in accidents resulting in injury or death. Dr Sowden was of the opinion that the Applicant’s psychological injury had arisen out of his employment with the Respondent. She also expressed the opinion that the Applicant’s employment with the Respondent has been a significant contributing factor to his psychological injury. Her viva voce evidence was also to the same effect.

[15] Exhibit A3.

18.  The Tribunal should observe that there were features of Dr Sowden’s report that took on the role of an advocate for the Applicant. They are to be found in the portion of her report headed “Process of assessment”. This was unfortunate, by way of example, there was an observation in her report suggesting that the Respondent had engaged in a fishing expedition and that the initial letter from it rejecting the Applicant’s claim suggested it was “a private insurer that they are above the law are not responsible.” These observations are not helpful and are not the sort of comments that should be made by a responsible expert in a report prepared for the Tribunal. This is because it violates the obligations of an expert under the Tribunal Guideline for “Persons Giving Expert and Opinion Evidence” which provides, amongst other things, that a  person giving evidence based on his or her special knowledge or experience in an area:

(a)has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience; and

(b)is not an advocate for a party to a proceeding.

19.  Dr Ventura, a consultant forensic psychiatrist called by the Respondent, prepared a report dated 16 July 2019 which was in evidence.[16] Her diagnosis was that the Applicant’s symptoms and mental state examination meet the DSM-5 diagnosis of a major depressive disorder (‘MDD’). She observed that the Applicant was preoccupied by the reported lack of safety measures in the fatigue management of truck drivers by the Respondent. Dr Ventura expressed the opinion that the Applicant’s employment was a significant contributing factor to his current psychiatric condition. She further observed that the Applicant has unfortunately not had evidence-based treatment for his disorder and his psychiatric symptoms continue to deteriorate. Additionally, she cautioned that the prognosis of MDD is poor without treatment as it can go into chronicity and become treatment resistant. She opined that with no treatment, Applicant is unlikely to regain fitness for employment. Dr Ventura’s evidence from the witness box was to a similar effect. She was a most impressive witness who gave her evidence fairly and impartially. Her conclusions did not greatly vary from those of either Dr Mobilia or Dr Sowden save that she did not diagnose an anxiety disorder or an adjustment disorder. This was surprisingly not probed during her evidence from the witness box.

[16] Exhibit R 3.

20.  Given the preponderance of medical evidence pointing in the same direction, the Tribunal concludes that the diagnosis of Dr Ventura, namely, major depressive disorder, is preferable. The Tribunal is satisfied that it is a psychological condition beyond the boundaries of normal mental functioning.

21.  The Tribunal also concludes, having considered the preponderance of the medical evidence, that the Applicant’s employment was a significant contributing factor to his current psychiatric condition. It also finds that the condition from which the Applicant suffers – namely, MDD – is an ailment to which his employment with the Respondent contributed to a significant degree. It was a mental injury that arose out of or in the course of his employment.

22.  The injury from which the Applicant suffers, MDD, resulted in incapacity for work and he obtained medical treatment that was reasonable to obtain for such injury.

23.  Surprisingly, when each of the healthcare professionals were in the witness box, the date of onset of the Applicant’s condition was not explored. Dr Sowden and Dr Ventura in their respective reports did not identify a date on which the onset of the Applicant’s condition occurred. Dr Ventura observed that from the history available to her the Applicant was not symptomatic until workplace events of October 2018. In response to a specific question asked of her in a letter of instruction she did express the opinion that as at 7 December 2018 the Applicant suffered from a condition outside the boundaries of normal mental functioning and behaviour. It must be repeated however, that she did not identify the date of onset of the condition concerned. Dr Sowden stated that it was reported that the Applicant sustained a phycological injury around October 2018.[17] The only evidence before the Tribunal identifying a date of onset of the condition was contained in the several Certificates of Capacity from Dr Mobilia that were in evidence before the Tribunal.[18] In each of those certificates, he opined that the date of the injury was in November 2018. This evidence was not challenged. The Tribunal sees no reason why this date should not be accepted. It is not inconsistent with the evidence of Dr Ventura or Dr Sowden.

[17] Exhibit R3.

[18] T-Documents T48/103; T50/106.

24.  Therefore, the Respondent’s contention that there was no independent evidence establishing that the Applicant was suffering any mental health symptoms as a result of illegal activities prior to his interactions with Malseed in the period of 7 to 12 December 2018 must be rejected.

25.  Further comments should be made regarding another aspect of the Respondent’s submissions concerning Dr Mobilia’s evidence. Reference is made to his clinical notes of 12 and 21 December 2018, and 8 January 2019. Those notes indicate, as did his evidence from the witness box, that he was prepared to encourage the Applicant to engage in discussions with the Respondent with a view to negotiating a satisfactory return to work program. This return to work program would preferably require the Respondent to meet three conditions including the return of what was known as the “Canberra run”.

26.  The Tribunal accepts Dr Mobilia’s evidence that given his diagnosis of an adjustment disorder, with depression, major depression and anxiety disorder he was hopeful that the negotiations proposed between the Applicant and the Respondent would resolve the issues between them. His hope being that such negotiations would eliminate the circumstances which were the stressors that created the adjustment disorder of depression in the first place. Once the stressors are addressed, he stated, so too must the medical issues which are the consequence of that be addressed. Both matters need to be addressed for resolution to occur, and as he observed, it is usually undertaken by a rehabilitation provider. In this setting it is perfectly understandable why Dr Mobilia encouraged the Applicant to engage in discussions with the Respondent to negotiate a return to work subject to the three conditions concerned.[19]

27.  The Tribunal should also observe that it rejects the Respondent’s contention that the entries in Dr Mobilia’s clinical notes of 12 and 21 December 2018 and 8 January 2019 undermine his opinion that the Applicant was incapacitated by anxiety and depression brought on by the illegal activities on 12 December 2018.

28.  Some further observations should be made about the Applicant’s failure to explain his past history to both Dr Sowden and Dr Ventura. Dr Sowden in her first report recorded that the Applicant said he had never sustained any former psychological injuries and had never been prescribed medication for anxiety or depression. He told her it was the first time in his life that he had suffered any psychological symptoms. This, as noted above, was incorrect. Dr Ventura similarly noted that the Applicant informed her he had no past psychiatric history. In the witness box, however, both Dr Ventura and Dr Sowden acknowledged the importance of being furnished with an accurate medical history and the role it played in forming the opinions that they reached.

29. 

Dr Sowden was asked after having taken the Applicant’s medical history into account, whether and how her opinion was altered. She stated that it did not alter her opinion.[20]

Dr Ventura when in the witness box, surprisingly was not asked whether the revelation of the prior history of the Applicant caused her to alter her opinion.[21] She acknowledged that past psychiatric history can inform a psychiatrist as to whether a person has a predisposition to developing further episodes of such condition. She did not alter her opinion however as to the diagnosis of  MDD or its cause.

30.  Dr Ventura conceded in the witness box that if the patient was told by their doctor that they had an adjustment disorder some years earlier and there were no major psychiatric intervention, medication or the like, she would assume that it was just a mild adjustment disorder and not major depression.

31.  The Respondent has contended that medical evidence that relied upon the Applicant’s self-reporting should not be accepted.[22] The Tribunal cannot accept this contention. The reason is that it has accepted the medical evidence concerning the diagnosis of his condition and its cause. Dr Mobila’s diagnosis was made with full knowledge of the Applicant’s prior medical history. Dr Sowden and Dr Ventura (who it will be recalled was a witness for the Respondent) once appraised of the Applicant’s medical history whilst in the witness box, had the opportunity to change their opinions but did not do so. Had they done so, the Tribunal might well have reached a different conclusion. However, this ventures into the realms of impermissible speculation.

[19] Dr Mobilia’s evidence at pages 470, 478-479 of the Transcript of Proceedings.

[20] Transcript of Proceeding p 431.

[21] Given that Dr Mobilia’s clinical notes were summoned it is also surprising that copies of them were not furnished to Dr Ventura prior to the hearing with a request that in the light of their contents she produce a supplementary report stating whether or not her opinion had changed in any in any way, and if so, how.

[22] See paragraph 5(1) and paragraphs 17 to 20 of the Respondent's submissions.

THE FACTS AND CIRCUMSTANCES CONTRIBUTING TO THE APPLICANT’S DIAGNOSED CONDITION

32.  At the outset of this analysis, the Tribunal should observe that the Applicant’s case was conducted in a manner which sought to scrutinise the overall conduct of the Respondent’s business, particularly in relation to the adherence of fatigue management rules and other safety obligations. The Tribunal will not in these reasons undertake such a task, nor is it appropriate and necessary to do so in order to determine the application. The Tribunal will instead consider each of the individual facts, acts and circumstances referred to and determine them accordingly.

33.  The Respondent has steadfastly denied that it has ever encouraged or instructed its employees to breach fatigue management or other safety rules. Indeed, its general manager, Scott Finemore, gave evidence of the Respondent's commitment to high safety standards.[23] He also pointed out that the Respondent is subject to regular audits by the National Heavy Vehicle Regulator. A recent audit report by the Regulator was in evidence which found no issues of non-compliance of any significance. The Tribunal acknowledges this.

[23] Mr Finemore made two statements and gave evidence from the witness box.

34.  The Applicant gave evidence that in approximately June 2018 he observed practices with respect to the safe securing of loads on vehicles which were a breach of applicable rules. In short, he observed insecure, or not properly secured loads. This observation prompted him on 14 June 2018 to take photographs of two trailers which were in evidence before the Tribunal.[24] Apparently, the problem with these particular loads were that they were not tied down and secured. The Applicant then sent these photographs to Mr Eddy who was employed by the Respondent as an Operations Supervisor, and to Mr Malseed. the Operations Manager at the Respondent’s Barnawartha Depot, to advise them of the problem. There was no evidence before the Tribunal at either of them responded after receiving the photographs from the Applicant.

[24] Copies of the photographs were attached to the Further Statement of Applicant made on 19 August 2020.

35. 

Memoranda were then sent by Mr Parry to the General Manager of the Respondent which emphasised the need for safe strapping and load restraint on 22 June 2018 and

13 September 2018.

36.  Another matter of concern to the Applicant arising from the strapping and securing of loads arose in the context of what became known in the course of this hearing as the “Mars loads”. Mars is a well-known multinational corporation that has a significant manufacturing facility approximately 25km from the Respondent’s Barnawartha Depot. The practice had developed that from time to time drivers who had delivered a load to Canberra upon their return would collect a load from Mars and deliver it a short distance to Barnawartha prior to completing their shift. The Applicant observed that drivers returning from a Canberra run were frequently reluctant to carry over 20 angles and tiedowns which were needed to secure a Mars load. The reason for this was that they were usually stored at the rear of the cabin behind the driver in the sleeping area. Two problems were said to emerge from this fact. Firstly, if a driver is fatigued and required to rest, he could only do so by remaining on the front seat. Secondly, there was said to be a risk of serious injury if there were a crash as the angles are unsecured behind the driver. These were understandable concerns on the part of the Applicant.

37.  In these circumstances the Applicant stated that he had observed Mars loads to be rarely secured properly on the journey between the Mars factory and the Respondent’s Barnawartha Depot. He gave evidence that the drivers took their chances with an unsecured load. The reason for this was that if they took the time to secure their load properly, they might exhaust the number of available hours before they were obliged to take a rest in compliance with Basic Fatigue Management obligations about which more will be said later on. The Applicant contended that it was bad practice to, as he put it, “squeeze an extra load” on a shift from a driver who was fatigued or potentially fatigued, at the end of the shift.

38. 

The Applicant expressed concern that there was no response to him from Mr Eddy or

Mr Malseed after alerting them to problem of insecure loads as highlighted in the photographs that he took. His view was that management of the Respondent simply ignored what he put to them.

39.  Whether it was prompted by the Applicant sending the photos to Mr Eddy and Mr Malseed on 14 June 2018, as referred to earlier, it is not quite accurate to say that the Respondent ignored the problem. It did send the memorandum of 22 June 2018. The document speaks for itself. It is expressed in clear and unequivocal language concerning the obligation to properly secure loads.

40.  Nonetheless, the Tribunal accepts that these events as recounted above concerning insecure loads or adequately secured loads from Mars, were the first in a series that caused the Applicant to, as Dr Ventura observed, become greatly preoccupied by what he perceived to be the lack of safety in the trucking industry and specifically that of the Respondent. The Tribunal also accepts that these concerns continued until the next event which occupied a significant portion of his evidence and thereafter until such time as he ceased work with the Respondent.

41.  The next event that was canvassed in the evidence concerned what was known as “the Biada-Marrickville run 19 – 20 September 2018”.

42.  The Applicant commenced his working day early on the morning of 19 September 2018 at the Woolworth’s Barnawartha Depot. He signed onto a 40-tonne prime mover. He was assigned to pick up a load at Biada, Hanwood near Griffith being 30 tonnes of chicken for subsequent delivery to M & J Poultry in Marrickville which is a suburb of Sydney.

43.  Upon signing for the prime mover and undertaking the daily check, he drove to Wodonga to pick up a refrigerated trailer for the purposes of transporting the chickens to Sydney. The trailer was full of empty pallets which needed to be returned. Those empty pallets are referred to in the industry as “salvage”. These pallets were plastic trays used for meat products. They were required to be returned to Teys, a meat processing company based in Bowman located on the outskirts of Wagga Wagga.

44.  In his evidence the Applicant observed that his Work Diary Daily Sheet recorded that he departed Wodonga at 7.00 AM. This was purportedly after an hour and 15 minutes rest. His evidence was that he had no rest whilst at Wodonga. This evidence given by him was not challenged when he was in the witness box.

45.  The Applicant arrived at Teys in Wagga at approximately 10AM. He gave evidence that the Work Diary Daily Sheet[25] contains an entry recording a 30 minutes rest. In his evidence he said that he did not rest at all. The reason for this was that whilst there, he was in the rear of the trailer using a manual hydraulic pallet jack to assist unloading the salvage. Once again, this evidence given by him as to this fact was not challenged when he was in the witness box.

[25] The Work Diary Daily Sheet is a business record of the Respondent in which the driver makes entries. It is the document that was used by the Respondent to calculate driver’s pay. The drivers also keep, as they are required to do by the National Heavy Vehicle Law, a logbook. The logbook is an electronic logbook. Pages of the Driver Work Daily Sheet for the Applicant and the Biada-Marrickville run on 19-20 September 2018 were in evidence before the Tribunal as an attachment to the first witness statement of the Respondent's General Manager, Scott Finemore.

46.  The Applicant then drove to the Biada factory at Hanwood, arriving at approximately 1:00PM. Whilst there, he did have a rest of one and a half hours which was recorded in the Work Diary Daily Sheet.

47.  He departed Biada at 2:30PM arriving at Yass at 6:30PM. This was accurately recorded in the Work Diary Daily Sheet. As at that time he had been working for 13 hours with only 1.5 hour’s rest. He had a 15-minute break at Yass. His journey then continued to M & J Poultry in Marrickville arriving at approximately 10:00PM.

48.  Prior to his arrival at Yass, the Applicant anticipated that he would be out of hours before the delivery of chickens to M & J Poultry could be completed. He telephoned one “Terry” at 3:42PM who was apparently a scheduler at the Respondent’s Depot. A tape-recording of that telephone conversation was in evidence and played before the Tribunal.[26] The Applicant informed Terry that he needed to be off the road by 10:30 PM as he had started work at 5:30 AM that morning. He pointed out to Terry that the window for delivery was between midnight and 1.00 AM. The Applicant explained to Terry that if he could arrive at M & J Poultry before 10:30 PM he would be required to take his compulsory seven-hour break immediately. He also explained to Terry that the other option was to stop an hour out of Sydney to take his compulsory seven-hour break and then deliver the chickens to M & J Poultry in the morning. Terry said words to the effect that he would need to consider the matter and call him back shortly. He did not do so.

[26] The audio file of this telephone conversation was known as Audio File 3.

49.  What happened was that Mr Eddy then telephoned the Applicant at 5:03 PM.[27] The Applicant explained to Mr Eddy that by the time of his anticipated arrival at M & J Poultry he would have to be off the road. Mr Eddy explained to him that what was known as a “split break” was an option. He would be able to rest from the time of his arrival until the chickens were unloaded. He could then split his break by travelling to Minchinbury (within two hours) and then complete his rest break provided he did not work more than 14 hours in that 24-hour period. Mr Eddy asked the Applicant if he was happy with such an option to which he replied he was absolutely.

[27] The audio file of this telephone conversation was known as Audio File 25.

50.  By way of completeness, it should also be observed that towards the end of the conversation, the Applicant asked Mr Eddy if he had heard anything regarding his desires to be appointed to a position of a driver trainer. Mr Eddy advised the Applicant that he had not at that stage.

51.  It was common ground at the hearing of this application that the advice provided by Mr Eddy to the Applicant during the telephone conversation of 19 September 2019 was wrong. The Respondent and none of its witnesses contended otherwise. It would be subsequently confirmed to be wrong by the Applicant in a conversation he had with an officer of the National Heavy Vehicle Regulator on its telephone advice line.[28] The substance of the advice given in that telephone conversation was that the seven-hour break should not be split and a split rest break could not be rostered or scheduled.

[28] The audio file of this telephone conversation was known as Audio File 21. The contents of that Audio File are referred to in their entirety for the full force and effect.

52.  Mr Eddy gave evidence that his advice to the Applicant in their phone call was based upon his understanding that his plans had changed whilst he was out on the road. This was considered to be an exception to the prohibition on taking a split break. Mr Eddy understood that such a split break could be undertaken if the driver’s scheduled plans had changed whilst he was on the road. He stated that when he later spoke to the Applicant, he was given different information from what he had initially understood. Had he been aware that the Applicant’s plans had not changed whilst on the road and the run scheduled in the way it was, he would not have advised him that he could take a split break.[29] Mr Eddy also gave evidence that the Applicant never made any complaint to him about any stress or concerns he had emanating from the events that took place on such run.

[29] Scott Finemore the General Manager of Manager of the Respondent in his evidence produced an extract from the website of the National Heavy Vehicle Regulator which explains the operation of split breaks. It is useful to reproduce that for the purposes of these reasons as follows:

"A split rest is where a driver takes 6 continuous hours at one time and 2 continuous hours another time in a 24-hour period, rather than the required 7 continuous hours of rest.

Split rests are not encouraged because they can impact on the quality of the drivers sleep. However, the HVNL does provide a defence if you take a split rest under the BFM. The defence only applies if you had at least the required 7 continuous hours of rest in the previous 24-hour period and you did not schedule the split rest."

The contention of the Applicant is that the Biada-Marrickville run 19-20 September 2018 run as scheduled could not be undertaken without the driver having to take a split break which violates the rule.

53.  Upon arrival at M & J Poultry at 10.00PM, the Applicant’s evidence was that he had worked for 12 hours and 45 minutes. Therefore, under Basic Fatigue Management rules which only permitted him to work 14 hours excluding rest breaks before the commencement of a seven-hour continuous rest break, he had only one hour and 45 minutes left.

54.  However, M & J Poultry were not due to commence unloading the consignment of chickens until 1:00AM. The Applicant was left with no alternative but to wait in the street in the prime mover until the commencement of unloading. He waited until 1:00AM and assisted with the unloading which took one hour and 30 minutes. The unloading finished at approximately 2:30AM after which he immediately drove the truck and empty trailer to the Woolworth’s distribution centre at Minchinbury. He arrived there at approximately 3:30AM having been on duty now for 22 hours with only a one hour and 45-minute rest during that time. The Applicant contends that under Basic Fatigue Management Rules he should have been taking his compulsory full seven-hour resting break by 10:30PM. He was unable to do so because of the requirement to wait at M & J Poultry and then unload.

55.  The next day, on 20 September 2018, the Applicant telephoned the National Heavy Vehicle Regulator (‘the Regulator’) which maintains a telephone advice line.[30] The Regulator regulates heavy vehicles over 4.5 tonnes in all Australian states (save for Western Australia) and the ACT. Part of its regulatory regime includes the Heavy Vehicle (Fatigue Management) National Regulation. Those regulations are administered by the Regulator. The Law and the Regulations need not be reproduced for the purposes of these reasons.[31] In that telephone conversation with the Regulator, Applicant was informed that a split rest break could not be rostered or scheduled. This advice given to the Applicant during this conversation by an officer of the Regulator was an accurate statement of the application of the Regulations concerning Basic Fatigue Management. This telephone conversation with the Applicant confirmed that the advice given by Mr Eddy to him in their telephone conversation in the afternoon of the previous day was wrong.

[30] The audio file of this telephone conversation was known as Audio File 21.

[31] Details of the Heavy Vehicle National Law were provided to the Tribunal during the hearing of the application and are carefully canvassed in paragraphs 21 to 29 and 41 to 43 of the submissions lodged on behalf of the Applicant dated 7 May 2021. Those submissions were not challenged by the Respondent either during the hearing of the application or in its written submissions. Indeed, the relevant witnesses including Mr Eddy, Mr Malseed, Mr Kennedy and Mr Finnemore all acknowledged the application of the Heavy Vehicle National Law.

56.  The Applicant gave evidence that the reason he telephoned the Regulator was because he was unable to put the legal hours that he had worked into his logbook. It should be noted that the logbook is a digital logbook. The Applicant’s evidence was that the digital logbook did not allow him to record an entry with a split break in any shape or form. He also gave evidence that he used a logbook checking app known as “Blue Tree” which also informed him that he could not record a split break in the logbook. This also prompted him to crosscheck by way of the telephone call with the Regulator.

57.  The Applicant gave evidence that this revelation caused anxiety and worry to him which continued until 12 December 2018 when he could no longer continue working for the Respondent because of his psychological injury. This evidence is accepted by the Tribunal. This expressed state once again, was consistent with the observations made by Dr Ventura and Dr Sowden, that he became preoccupied by the reported lack of safety measures (and risk of drivers being involved in truck accidents resulting in injury) in the fatigue management of truck drivers by the Respondent. The Tribunal accepts that these events surrounding the Biada-Marrickville run 19 – 20 September 2018 contributed to the condition of the MDD from which he suffers.

58.  By reason of these conclusions, the Tribunal rejects the contention of the Respondent that there is no evidence to suggest that the Applicant suffered any stress or mental health symptoms on account of what occurred with respect to the split break during the Biada-Marrickville run om 19 – 20 September 2018. This is notwithstanding that the Tribunal agrees with the Respondent’s contention that a significant concern of the Applicant at this time was that he was seeking a permanent appointment to a driver/trainer position. The fact that he was seeking appointment to the position of driver/trainer, does not mean that the events that occurred on the Biada-Marrickville run on 19 – 20 September 2018 were not a stressor that ultimately contributed to the diagnosis of MDD from which he now suffers.

59.  A telephone conversation occurred between the Applicant and Mr Eddy 1 October 2018.[32] The substance of the telephone conversation was that Mr Eddy informed the Applicant that he was going to use his skill set as a driver/trainer. This would also include couple and uncouple assessments and Verification of Competencies (“VOC”). Mr Eddy also stated that it was anticipated that in the longer term his skillset would be utilised in conducting “buddy runs” and assisting with on road training. The Applicant expressed his delight at this development.

[32] The audio file of this telephone conversation was known as Audio File 6.

60.  From this time on, it appears that the Applicant was used as a driver/trainer on an as required basis. There was, however, no change to the written contract of employment between the Applicant and the Respondent. Any driver training work that he did was subject to what other work the scheduler or the Respondent’s operations section had allocated to him.

61. 

Another telephone conversation occurred between the Applicant and Mr Eddy on 15 October 2018 that lasted for just under 15 minutes.[33] A range of issues were canvassed in that conversation. They included whether the Applicant could continue in a role as a driver/trainer, whether he could undertake a Certificate 4 upgrade, whether he could undertake his B-Double and whether he could be given a permanent Saturday/Sunday run. The Respondent notes that these three requests are the same as those identified by

[33] The audio file of this telephone conversation was known as Audio File 23.

Dr Mobilia in his clinical note of 21 December 2018. The Respondent described them as “demands”. When one listens to this telephone conversation, let alone later conversations, the Tribunal would not classify or categorise them as “demands”. At best the Tribunal considers they were enthusiastic requests, or perhaps more accurately, an employee sounding out an employer about the prospect of these things being given to him. Given his previous history as a driver educator – which was acknowledged by the Respondent – this does not seem to the Tribunal to be particularly out of the ordinary.

62.  The next event that featured in the evidence revolved around a Mars load on 21 to 22 October 2018. The Applicant commenced work on that day at 12:00PM. He was rostered to take a load to Queenbeyan and pick up another load from Mars on his return. The Applicant gave evidence that the entries in his Work Diary Daily Sheet record him as resting from noon till 1:00PM. This was not correct as he was working collecting paperwork, conducting a driver daily check and attending to security at the weighbridge. He then travelled to Queenbeyan via Holbrook where he had a 30-minute rest. He was present at Woolworths Queenbeyan for approximately one hour. Instead of resting he assisted with the unloading. He gave evidence that his Work Diary Daily Sheet recorded the time at Woolworths of one hour and 15 minutes at Queenbeyan as rest time when it was not. This evidence was not contradicted.

63.  The Applicant departed Queenbeyan at approximately 7:45PM. After a short break of 15 minutes at about 10:00PM in Gundagai, which was recorded correctly in his Work Diary Daily Sheet, he arrived at Mars Wodonga at approximately 12:30AM. Upon arrival at Mars it became apparent to the Applicant that he did not have a headboard nor enough straps and needed approximately 22 angles to properly secure the load.

64.  He called the Respondent’s operations section at Barnawatha and spoke with Debbie Neile. There were two conversations took place between them. Tape recordings of those conversations were in evidence before the Tribunal.[34] The Applicant explained that he did not have the necessary restraint equipment and that he was almost out of hours under the Basic Fatigue Management Rules. He would then need to have a full seven-hour stationary compulsory rest break. Ms Neilie suggested that another driver could be procured but the Applicant would need to show him what to do. He elected not to adopt this suggestion because he would still be required to work out of time.

[34] The audio files of those telephone conversations were Audio File 10 and Audio File 11.

65.  The Applicant then went to the Respondent’s Wodonga depot to obtain the necessary strapping and returned on his own to Mars. Upon his return to Mars he observed that the trailer was loaded but not strapped. The Applicant elected to drive the load to Barnawartha without the load being correctly restrained. He left at approximately 3:00AM and arrived at Barnawartha at approximately 4:00AM. The Applicant contends that by 2:30AM on 22 October 2018 he was out of hours. He was then required to commence the compulsory seven-hour continuous rest break under Basic Fatigue Management Rules. Upon arrival at Barnawartha he still spent another approximately 45 minutes to wind up his duties for the run.

66.  In his evidence, the Applicant took issue with two phone calls that occurred at 9:33AM and 10:01AM on 22 October 2018 during his seven-hour continuous stationary rest period.[35] Concerning the first call, he gave evidence that an employee Omar, from Barnawartha operations, demanded to know about deliveries and assessments from the previous week. It is an exaggeration to say that Omar demanded anything on the phone call. It was conducted courteously between the parties with Omar apologising for disturbing the Applicant. In his penultimate sentence of the conversation, the Applicant said, “No worries at all”. Similarly, in the second conversation Omar apologised for disturbing the Applicant and the Applicant said it was all right. At no time did the Applicant in either of those phone calls object to being interrupted during his rest period. The gloss that the Applicant put on these phone calls in his evidence reflected his tendency, from time to time and as observed earlier, to embellish or exaggerate his evidence to suit his case.

[35] The audio files of those telephone conversations are Audio Files 7 and 8.

67.  Whilst the Applicant’s account of these phone calls is exaggerated, the Tribunal accepts that he has ruminated on them since they occurred. The fact that they did occur during his 7-hour rest period has further contributed to his preoccupation with what he sees as deficient safety measures in the area of fatigue management by the Respondent.

68. 

Mr Malseed telephoned the Applicant on the morning of 24 October 2018 to discuss what occurred at Mars early in the morning of 22 October 2018.[36] The Applicant gave an account to Mr Malseed of what occurred much as has been recorded earlier in these reasons.

[36] The audio file of that telephone conversation Is Audio File 16.

Mr Malseed acknowledged what the Applicant explained to him. He also said that if in future he was likely to be running late for a Mars load, he should contact operations. The Applicant expressed the hope that what occurred to him with that Mars load would not happen to another driver ever again. It was a courteous phone call conducted in a friendly tone between them. It was not conduct that could be described as bullying in any way.

69.  Another incident of concern to the Applicant occurred on 24 October 2018. Whilst performing the duties of a driver instructor conducting a Verification of Competencies (“VOC”) he was requested to undertake what is known as “driver rescue” or “driver salvage”. The Applicant was assessing a new driver for VOC and requested to rescue a driver out of time. The Applicant stated that it caused him difficulties because he could not properly assess the new driver for the VOC. It also caused the Applicant concerns because the driver who is out of hours when being “rescued” or “salvaged” does not have a compulsory seven-hour stationary rest break as required by the Basic Fatigue Management Rules. That driver is a passenger in the cabin of the truck driven by the fresh driver who returns the driver out of hours to the Respondent’s depot. What happened in the specific case on 24 October 2018 was that the driver out of time was tasked to supervise the new driver’s return to Barnawartha with a load.

70. 

The Applicant raised his concerns about this practice in a telephone conversation with

Mr Eddy on the next day namely 25 October 2018 which conversation was tape-recorded.[37] It appears that in the course of that conversation Mr Eddy also discussed the matter with Mr Malseed. The Applicant concluded from a conversation that Mr Malseed and probably others in the Respondent’s employ were either unaware of the rules or were prepared to bend them. He gave evidence that this caused him concern. Once again, the Tribunal accepts that these events caused the Applicant considerable distress and contributed to his condition from which he now suffers.

[37] The audio file of that telephone conversation Is Audio File 15.

71.  On 3 November 2018 the Applicant had another telephone conversation with Terry who it will be recalled is a scheduler employed by the Respondent. That phone call was tape-recorded.[38] In that phone call the Applicant complained that he would not be getting a full rest break or sleep between the time he was required to present for work the next day. He considered that the scheduling as applicable to him was not properly accommodating Basic Fatigue Management Rules. Once again, this also contributed to the Applicant's preoccupation with what he considered to be a lack of safety measures in the fatigue management of truck drivers in the Respondent's business.

[38] The audio file of that telephone conversation Is Audio File 18.

72.  On 5 November 2018, the managing director of the Respondent Mr Parry circulated a memorandum to all the Respondent’s employees concerning the death of an employee’s wife and child in an accident with a truck.[39] (Not a truck belonging to the Respondent.) The truck concerned was driven by driver on his first run. In cross examination, the Applicant conceded that the offending driver was under the influence of drugs when the accident occurred. He had been detected previously with drugs in his system. Nonetheless, the Applicant said that this memorandum caused him to worry about bad practices that he had observed being developed by the Respondent into driver instructions. There was also the worry caused to him by the Respondent’s practices of signing of drivers on their competency assessment while rescuing other drivers who were fatigued and out of hours in breach of the applicable fatigue Management rules. He recounted ruminating over split breaks, extra runs at the end of the shift when he was likely to be out of time, cutting corners, and not properly strapping or securing loads and driver salvage in what he saw as violation of the Basic Fatigue Management Rules. The Tribunal accepts this evidence from the Applicant. Once again, this is consistent with the observations of Dr Sowden and Dr Ventura to the effect that the Applicant had a preoccupation with the alleged lack of safety measures in the fatigue management of truck drivers by the Respondent.

[39] This was referred to in evidence and submissions as the Kilmister memorandum.

73.  Another event occurred on 16 November 2018 whilst the Applicant was conducting a VOC for a driver on a run to Canberra. As previously he was requested to rescue a driver who was running out of hours. He was requested to allocate the driver with whom he was undertaking the VOC into the truck with the out of hours driver. The Applicant had three telephone conversations with two schedulers and Mr Eddy. Three of those telephone conversations were tape-recorded.[40] The conversations speak for themselves. However, in the course of them, the Applicant emphasised that the rescue of drivers out of hours was illegal and not something he was prepared to do. He gave evidence that he was concerned about these practices and that what he was being forced to do in violation of the Basic Fatigue Management Rules. The Applicant felt he was the only one taking such rules seriously and that he was in effect on his own.

[40] The audio files of those telephone conversations are Audio Files 13, 26 and 14.

74.  On 2 December 2018, the Applicant did a Canberra run and during which he was scheduled to pick up a Mars load upon return. The Applicant refused to pick up the Mars run on the return because he was concerned that he would be out of hours and unable to undertake the run legally.

75.  The Applicant also contended that the addition of a Mars load after the Canberra run would cause him personal difficulty because the next day was his day off and he was driving to Melbourne early in the morning to undertake a course. He was concerned he would not have sufficient sleep to recover and would be potentially an unsafe driver on the highway the next day on his trip to Melbourne.

76. 

On his next day at work, namely 5 December 2018, the Applicant had a meeting with

Mr Malseed. Also present in the room were Mr Eddy and Mr Meikle. The Applicant in his evidence asserted that Mr Malseed threatened him with putting him on a night shift roster as a means of intimidating him. In the witness box he repeated on several occasions that the proposal was a threat. He described Mr Malseed as angry and threatening. Mr Eddy made both a statement[41] and gave evidence from the witness box concerning this meeting. Whilst he said both the Applicant and Mr Malseed became at times frustrated, he did not suggest that Mr Malseed engaged in threatening, angry or intimidating behaviour. When in the witness box even went so far as to say it was not even forceful. Mr Malseed himself gave similar evidence. The Tribunal prefers the evidence of Mr Eddy, who it will be recalled was called as a witness by the Applicant. He struck the Tribunal as a fair and credible witness. His written statement was made relatively soon after the meeting concerned. [42] He was probed on and confirmed its contents during cross examination. His evidence largely corroborated that of Mr Malseed. The Tribunal rejects the suggestion that the proposal for the Applicant to change to nightshift was a means of intimidating him. Nor was it a threat. It accepts that the proposal was made by Mr Malseed to the Applicant as a realistic means of getting him adequate rest periods so that he could wake up early on Monday morning for his trip to Melbourne. For whatever reason the Applicant did not see it in that light.

[41] T-Document T10.

[42] T-Document T10 which is described as an undated email. In the witness box Mr Eddy stated that he believed he sent the email sometime after 12 December 2018 when Mr Kennedy became involved.

77.  It was also observed by the Applicant that both Mr Eddy and Mr Meikle did not intervene during this meeting. The Tribunal finds that there was no need or reason for them to intervene. The Tribunal has no doubt that if Mr Eddy, a credible witness and who was a long-serving former soldier had felt that the conduct of either of the parties justified his intervention, he would have done so. It is telling that he did not.

78.  It is timely at this stage of the reasons in this matter to make reference to an observation made by Mr Eddy in his statement. He considered that the Applicant had taken a couple of conversations that occurred in relation to his role within the Respondent and blown them out of proportion in terms of what his role was and whether that role was an ongoing role in regards to driver training.[43] Having observed the evidence as it unfolded before the Tribunal from all relevant witnesses, this observation has a significant degree of reality to it.

[43] Paragraph 14 of Mr Eddy's statement, exhibit A 4 is referred to.

79.  Notwithstanding the findings of the Tribunal with respect to the 5 December 2018 meeting, it does consider that once again that the Applicant ruminated upon these events. Incorrectly, he felt he had been threatened and was targeted with the suggestion that he undertake a night shift roster. To this extent, what transpired at the meeting did contribute to the Applicant’s condition of MDD from which by then he was already suffering as noted above.

80. 

The Applicant sent an email to Mr Malseed 7 December 2018 following the meeting in the office on 5 December 2018. The contents of the email speak for itself. However, it is at variance with the evidence given in the Applicant’s witness statement and from the witness box. Nowhere did he suggest that he was threatened, intimidated, or that Mr Malseed was angry. He did say that he had been reprimanded like a little boy. He did not say how this was so. Mr Malseed in his evidence denied that allegation and stated that he spoke to the Applicant the way he would talk to any other driver. Overall, the tone of the email was quite conciliatory. The Applicant emphasised that he wished to continue on the day shift. This constitutes a further reason why the Tribunal prefers the evidence of Mr Malseed and

Mr Eddy concerning what happened at the meeting.

81.  Nonetheless, the Tribunal accepts that once again the upshot of the meeting was to cause the Applicant to ruminate on safety concerns, particularly that of fatigue management on the part of the Respondent. It was a contributing factor to the condition with which he was ultimately diagnosed and from which he was by then suffering from. It was also a contributing factor to the preoccupation about reported lack of safety measures in fatigue management at the Respondent as assessed by Dr Ventura.

82. Following the meeting on 5 December 2018, the Applicant commenced work at 10:00AM and did a large Woolworths run to the ACT. At the end of that run he did a further Mars load, in as he put it, the same way as he had done on the evening of 2-3 December 2018. The Applicant gave evidence that he worked 15 hours and 15 minutes on that shift. He worked over the prescribed maximum number of hours without a stationary rest break. The Applicant gave evidence that he was paid in accordance with the hours recorded in his Extras/Delay Sheet that he handed in; however, his Driver Work Daily Sheet did not accurately record that number of hours. This evidence given by the Applicant concerning the difference between the two documents was not challenged when he was in the witness box. The Applicant contended that he was worried by this and what he saw as the competing demands between Basic Fatigue Management requirements and as he described it his employers demands.

83.  The next event that the Applicant referred to in his evidence occurred on 9 December 2018. He reported for work and was given to short trips to Lavington, Albury and back. He was not allocated any training duties nor a regular driving run. He was then as he described it put on yard duties. It was described by him as a humiliation because they were not the duties of a driver or a driver trainer. The Applicant gave evidence that he was taunted in front of a group of approximately eight or nine people in the canteen at Barnawartha who were both employees of the Respondent and another transport company Toll. The Applicant contended this was a form of bullying and a means of humiliating him.

84.  The Respondent through several witnesses including Mr Kennedy and Mr Morton denied the allegations that it was a form of humiliation or for that matter bullying. The evidence was that from time to time, drivers are allocated local work which includes yard duties moving trucks and trailers and other relevant equipment within the local areas in between sites that are owned and operated by the Respondent. Mr Malseed gave evidence that it was common for a driver such as the Applicant to be allocated that sort of work. The evidence was that all drivers are asked to complete yard duties at various times and it is not considered or constituted a demotion. He even said that some drivers appreciate doing the work because they get home early. Such occasions were described as a “bonus”. It should not be lost sight of that the Respondent gave evidence that it has a fleet of in excess of 250 trucks. Almost invariably, yard duties or work in the yard undertaking these tasks as described will be an essential and necessary part of its operational requirements. The Tribunal accepts the Respondent’s evidence that it was not a form of bullying humiliation or demotion.

85.  Notwithstanding this finding, however, the Tribunal appreciates that the Applicant saw his allocation to yard duties in the light that he said. Given the previous findings of the Tribunal as to the date of onset of the condition it was more probably than not a factor that contributed to his already diagnosed condition which was probably worsening by that time.

86.  The Applicant gave evidence that without warning at 7:25AM on 12 December 2018, he received a text message from the Respondent’s operations section informing him that he was to undertake a Griffith-Biada-Marrickville run starting at 11:00AM. He had for some time been on permanent day shift. The Applicant says that he was given no warning that his shift was going to change. This he also said needs to be considered in the light of the fact that he had been working as a driver trainer which he could only undertake if he continued to remain on dayshift.

87. 

The other concern about this allocation of the run to him was that he knew he could not complete the run and at the same time comply with Basic Fatigue Management Rules. He reiterated that a split break was not an option for a driver to adopt when undertaking a Griffith-Biada-Marrickville run. The Applicant gave evidence that it was in his eyes a provocative act on the part of the Respondent motivated by its reaction to the meeting on

5 December 2018 and the reaction of Mr Malseed.

88.  The Respondent denied the assertions of the Applicant as to why he was allocated the Griffith-Biada-Marrickville run on that day. Mr Morton, an allocator, gave evidence that he allocated the run concerned to the Applicant. The Applicant had been used for buddy runs and VOC’s but because there were no new drivers that week, he allocated him a Griffith-Biada-Marrickville run. His evidence on this topic was not seriously challenged. It was not put to him that it was part of some provocative plan or retaliation for the Applicant’s role in the meeting of 5 December previously described. It was also not put to him that Mr Malseed had any role to play in the allocation of the run at all. This was contrary to the Applicant’s evidence where he stated he felt that the allocation of this run to him was a provocation because of “Malseed’s angry outburst on 5 December after my issue with the extra Mars load”. The Tribunal accepts Mr Morton’s evidence. Mr Morton was specifically asked if he had had a conversation with any of the Respondent’s contract managers about allocating the Applicant’s loads. He said he had not. Mr Malseed gave evidence that he did not have any conversations with Mr Morton as to what runs the Applicant was to be allocated. He said he had absolutely nothing to do and did not interfere with the scheduling. The Tribunal accepts the evidence of Mr Morton and Mr Malseed.

89.  The Applicant also said that the limited notice he was given gave him no chance to prepare for the trip. He stated that usually when allocated such shifts he would be notified the night before so that he could make appropriate preparations including packing an overnight bag and preparing food. He also had domestic arrangements to attend to given that he and his wife share responsibility for minding their children as she also works nights.

90. 

The Applicant gave evidence that the allocation of a Griffith-Biada-Marrickville run to him in the circumstances described caused him to break down. He consulted Dr Mobilia.

Dr Mobilia concluded that the Applicant was unfit for work and issued the Certificate of Capacity which has been referred to earlier. He has not worked since.

91. 

The Applicant and Mr Malseed had a telephone conversation between approximately 9:00 and 9:30AM the morning of 12 December. This was before he had seen Dr Mobilia.

Mr Malseed’s version of the content of that conversation was not really challenged. He stated that the Applicant claimed that he had influenced operations supervisors to allocate him bad jobs and that he only wanted Canberra runs. The Applicant also accused him of bullying. Mr Malseed explained that he was not involved in allocating driver jobs. He further suggested that the Applicant come to a meeting at the Wodonga office at 12:30PM to discuss the contents of his email of 7 December 2018 and any further issues he may have. The meeting did not take place as the Applicant did not attend but arranged for the Certificate of Capacity from Dr Mobilia to be sent to the Respondent.

92.  At approximately 10:34AM, the Applicant attended a consultation with Dr Mobilia. His clinical notes were in evidence. It was apparently a lengthy consultation. Interestingly, the clinical note of that consultation has been reproduced in the Certificate of Capacity given by him on that day under the heading “Work Environment Considerations”.[44] The contents of that document and the clinical notes are referred to in their entirety. The Respondent placed much emphasis on the fact that in both the clinical notes and the Certificate of Capacity prepared by Dr Mobilia, there is, in contrast to the way the Applicant’s case was conducted at the hearing of this application, limited reference to him being asked “to do things that are essentially illegal and potentially dangerous”.

[44] T-Documents T32/57.

93.  Later on 12 December 2018, Ms Waters, a rehabilitation and compensation officer employed by the Respondent, telephoned the Applicant. She requested a meeting with him concerning what she described as the alleged bullying and stress leave. The Applicant informed her that he was too upset to meet that week and would prefer her to contact him the following week to arrange a meeting off-site to discuss his concerns.[45]

[45] Waters' note of that telephone conversation was T-Document T16.

94.  The Claim for Compensation was made on 14 December 2018. In response to when the Applicant first noticed his injury or condition, he stated it commenced over a period of time since he gained permanent employment. The described condition was major depression and anxiety disorder.[46] The claim form makes no reference to allegations of illegal activities in the way that it was contended for by the Applicant at the hearing of this application. In response to the question: “[w]hat happened and how are you injured?”, he responded “[w]orkplace bullying with harassment belittling and degradation due to workplace bullying by operations manager Jason Malseed.” In response to a further question “[w]here were you at the time of the injury?”, he responded, “[at]t work, on the phone, in his office, etc”.

[46] The Claim for Compensation dated 14 December 2018 as document T-Documents T18/30-33.

95.  A meeting was arranged for and took place on 17 December 2018 between the Applicant and Troy Kennedy the Senior Safety Officer of the Respondent. Kennedy became involved in the matter following a meeting on 12 December 2018 between Malseed, Scott Finemore (the Respondent’s General Manager), Meikle and Waters to discuss what he said were the Applicant’s claims of being bullied and harassed by Malseed.

96.  Kennedy made detailed notes of the meeting which were in evidence before the Tribunal.[47] In cross examination the contents of those notes were put to the Applicant and he agreed that they were correct. After the meeting had commenced, Waters arrived and participated. All that occurred in the meeting need not be reproduced for the purposes of these reasons. However, the Applicant did cover much in the meeting including allegations of bullying against Malseed. He also identified in response to a question concerning doing things that were illegal and potentially dangerous that there had been 14 occasions. Towards the end of the meeting he said he wanted “to request things off” the Respondent as follows:

[47] Those notes are documented in the T-documents at T22.

(a)        Upgrade training assessment certificate;

(b)        Upgrade licence to MC;

(c)        Don’t change Canberra runs; and

(d)        Get signed off on stores that are not signed off on.

97.  The Applicant then indicated he would return to work if his concerns were met.

98.  On 21 December 2018 the Applicant consulted Dr Mobilia. The clinical notes of that consultation were in evidence. Amongst the matters discussed were the fact that Dr Mobilia encouraged the Applicant to attend a meeting with the Respondent’s representatives in order to “resolve” the matter by seeking to have the issues resolved including the matters that had been canvassed at the previous meeting on 17 December 2018. The Respondent has observed that the clinical notes contain an entry that the main issue of concern to the Applicant was to restore him to the Canberra run.

99.  On 21 December 2018 the Applicant met with Waters at a coffee shop in Jindera NSW. Topics discussed included, as Waters put it, allegations in general terms that the Respondent undertook illegal activities and the fact that if necessary, the Applicant would take his proof to the authorities. Waters said she could not assist him with safety concerns. He also mentioned that he wanted to return to work but it had to be a respectful return. She understood that reference by the Applicant to mean his relationship with Malseed. Finally, he repeated three demands which had to be satisfied before he would commit to a return to work, they were:

(a)A certificate 4 upgrade;

(b)A driver trainer position; and

(c)To remain on the Canberra run.

1. Waters and the Applicant had a telephone conversation on 4 January 2019. Waters made a note of that telephone conversation that was in evidence before the Tribunal.[48] The document should be referred to in full. The Tribunal finds that it is an accurate record of the subject matter of that telephone conversation. However, several things did emerge from it. The Applicant was very agitated throughout the phone call and frequently talked over the top of Waters. He wanted to know if she had an outcome for him following the meeting of 21 December 2018. The Applicant repeated his demands for three things to be satisfied namely: to have his Certificate 4 upgraded, to continue working on the Canberra runs and to work as a driver/trainer. He stated that once he had a commitment that these three demands been met it would be happy to go to the doctor to get a clearance for work. Waters asked the Applicant why he was giving her an ultimatum in respect of his return to work. He denied this and then said he didn’t want to be forced to get the union and RMS[49] involved but that he would have to if the matter was not sorted out soon. He repeatedly asked Waters if she thought he should get the union involved, to which she responded that it was his decision that she could not advise on it and suggested he do whatever he felt comfortable with. Finally, he requested that someone call him on the following Monday with an update as he would like to return to happy employment.

   [48] T-Document T27.

   [49] Roads and Maritime Services, a New South Wales agency.

2. The Applicant and Kennedy had a telephone conversation on 7 January 2019. A note (although not contemporaneous) of that telephone conversation was made by Mr Kennedy and was in evidence before the Tribunal.[50] Its contents are also referred to in their entirety. Kennedy informed the Applicant that the claims of bullying and harassment that had been made by the Applicant had been investigated and that such investigation was closed. The Applicant said he would be happy to return to work however he wanted his Canberra run. He also stated that he had identified 25 safety related issues. Kennedy advised him to supply those details to his supervisor or manager, but he refused to do so. He then stated that he had recorded all his telephone conversations where he had been asked to undertake illegal work and that he would raise these issues with the union and the Regulator. The Applicant also made comments that he would be happy to return to work if Malseed became a better person and asked Kennedy why he was making it so hard. Kennedy did observe throughout the conversation the Applicant interrupted him without giving him the opportunity to finish what he was saying.

   [50] T-Documents T29.

3. On 7 January 2019 the Respondent wrote to the Applicant.[51] It was stated in that letter that no evidence could be found of workplace bullying or harassment. It contended the major cause of his current condition appeared to be as a result of his manager’s inability to accommodate his request for a change to his roster. The letter also made a request under s 58 (1) of the Act that the Applicant provide particulars of any requests made of him to undertake illegal activities which it noted his doctor had advised contributed to his condition. It was stated that once such information had been provided the author would review and determine whether there was any liability under the Act.

   [51] T-Documents T30.

4. Waters had another telephone conversation with the Applicant on 8 January 2019. A contemporaneous file note of that conversation was in evidence before the Tribunal.[52] She recorded that the Applicant was aggressive in tone and yelling at her. The Applicant stated that he had spoken to Kennedy and considered it to be a very poor investigation. He stated that he was left with no choice but to go to the National Heavy Vehicle Regulator and get the union involved. Waters informed him that if he felt he should do that then it was fine. Waters also noted that the Applicant, whilst yelling at her, accused her of making him go to the company doctor on three occasions and that he was going to complain to the medical Board. In his evidence the Applicant denied making these comments. The Tribunal accepts Waters’s evidence that such comments were made. Waters was a credible witness who had no reason other than to make accurate notes.

   [52] T-Documents T31.

5. The Applicant furnished a reply to the Respondent’s letter of 7 January 2019.[53] The Applicant’s lengthy letter and its contents are referred to in their entirety. In it he stated, amongst other things, that he had been singled out by Malseed because of his commitment to the health and safety of drivers, and how to make sure that all new drivers were operating by the rules and regulations put in place by the Regulator. Extensive particulars were then given of alleged breaches of the National Heavy Vehicle Law. They need not be repeated. The Applicant concluded, amongst other things, that his injury was a direct consequence of the requests and demands placed upon him to support operations to have loads delivered at any cost, and not taking into account drivers’ legal requirements and his safety. He then stated that it was his duty to proceed to the next level and inform these matters to the relevant authorities.

   [53] The undated letter of reply from the Applicant's document T34 of the T-Documents.

   CONSIDERATION

6. The starting point is to identify whether the Applicant’s condition of MDD was contributed to by his employment. Should the contribution be significant, liability arises under the applicable section of the Act. This is of course subject to whether or not the exclusionary proviso in s 5A of the Act applies about which more will be said later.

7. The Applicant referred to an often-cited case of Federal Broome Company Pty Ltd v Semlitch[54] and an often-cited passage of Windeyer J from that case:

   When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.[55]

   [54] (1964) 110 CLR 626.

   [55] Ibid 641 (Windeyer J).

8. The Applicant contends and the Tribunal agrees that the concept of employment encompasses matters incidental to the performance of the employee’s duties.

9. It is sufficient if the event or occurrence, characteristic of the work or conditions in which it was performed, contributes to the contraction of the disease, its aggravation, acceleration or recurrence, even if the worker’s response to what occurred in the course of employment is otherwise irrational.

10. The Tribunal acknowledges the evidence that has been given by the Respondent’s witnesses concerning its compliance with the National Heavy Vehicle Law and all other applicable legislative and legal obligations. As noted earlier, there was the evidence of the General Manager of the Respondent Scott Finemore which is referred to in its entirety. In particular, there was his evidence that an audit was conducted by the Regulator in January 2019 which covered the period during which the Applicant alleged various safety breaches by the Respondent. That audit which was in evidence found no issue of non-compliance of any significance.

11. There was also evidence led on behalf of the Respondent that aside from some “minor blemishes”, no regulatory authority has taken any action with respect to the breaches or more accurately types of breaches of the National Heavy Vehicle Law that the Applicant has alleged.

12. However, the Applicant has identified several acts or events, details of which have been articulated earlier in these reasons, which he contends contributed to his illness. The Tribunal is satisfied that his response or reaction to those acts or events caused and or contributed to such illness.

13. Much emphasis was placed by the Respondent on the fact that in both the initial claim form and the Certificate of Capacity prepared by Dr Mobilia (and for that matter in his clinical notes) workplace bullying on the part of particularly Mr Malseed was the sole and/or dominant consideration. Certainly, in the claim form there was no reference to being required to carry out illegal acts.

14. Several things should be said about the Respondent’s contention concerning these matters. A workers’ compensation claim form can be and was in this case was prepared by the Applicant himself. He is not a trained lawyer and he should not be held strictly to everything in the form. It should not be treated as a pleading. The Applicant was searchingly cross-examined on why there was no reference to being asked to perform impermissible illegal activities. The Applicant said that he believed this fact was incorporated in the Certificate of Capacity prepared by his doctor which was faxed to the Respondent. He also made the point that the box in the claim form which required details had very little room as is the case. He put it that there was no room for him to be able to put everything in it. The Tribunal accepts this evidence.

15. Additionally, as the Applicant stated in his evidence, the Certificate of Capacity prepared by Dr Mobilia referred to, amongst other things, acts that were essentially illegal and potentially dangerous. It should be repeated that Dr Ventura found that the Applicant was preoccupied by the reported lack of safety measures in the fatigue management of truck drivers by the Respondent. She did not suggest that this preoccupation was anything other than genuine. Dr Sowden reached similar conclusions. Despite the reservations that the Tribunal has about some aspects of the Applicant’s evidence and his credibility, as was attacked with full force and effect by the Respondent, the Tribunal does accept that matters of essential road safety and Basic Fatigue Management Rules were genuinely of critical importance to him. It also should not be lost sight of that there is a fundamental obligation on applicable road users to obey the law. The law applicable to the Respondent includes the Basic Fatigue Management Rules and an obligation to ensure that its trucks transport loads that are properly secured. As the Respondent readily acknowledged, the Applicant had previous work experience in education and driver training. He discharged those duties from time to time for the Respondent as has been noted above. Matters of fundamental road safety were of critical importance to him.

1. The Tribunal finds that the facts before it concerning Basic Fatigue Management in so far as the Applicant was involved did contribute to a significant degree to the injury that he incurred being MDD.

2. There was scheduling the split break on the 19 - 20 September 2018 Griffith-Biada run. It is acknowledged that the Applicant followed the advice given to him by Mr Eddy. Whether or not Mr Eddy understood what the situation was as he gave evidence, ultimately it was wrong when applied to the situation facing the Applicant on that run. This was confirmed in the conversation with the Regulator.

3. With respect to the 19 – 20 September 2018 Griffith-Biada run, the Applicant contends, and the Tribunal agrees, that it was not challenged by the Respondent that such run was scheduled to start at 6:00AM in the morning. The Applicant’s window of delivery was not until 1:00AM the following morning. That fact was one that would put the driver and every other person in the Respondent’s chain of responsibility in breach of the Basic Fatigue Management Rules because the Applicant would run out of hours before the time fixed for finalisation of the delivery of the load of chickens.

4. The Respondent must have been aware of this fact. It had access to contemporaneous business records which also verified this fact namely the telematics data of the run which would prove the excessive hours travelled by the driver and of course the Driver Extras and Delay Sheets which recorded the excessive hours. Those sheets were used by the company to calculate drivers’ pay. This, as the Applicant contends, means there was never any doubt that the 19 - 20 September 2018 Griffith-Biada run, or for that matter, any other Griffith-Biada run scheduled that way, would fix a delivery time or window causing the driver to exceed the maximum number of hours he was able to drive in a shift before being required to take a compulsory seven-hour continuous stationary rest break. This is required by Regulation 9 “BFM hours-Solo drivers” and Table 1 of Schedule 2 of the Heavy Vehicle (Fatigue Management) National Regulations.

5. There was the other evidence given by the Applicant that was not seriously challenged about runs scheduled by the Respondent in which he became out of hours. These included the scheduling of the additional Mars load on top of the Canberra run on 22 October 2018 and a further example of the additional Mars load on 5 December 2018. It is quite apparent once again, that these examples cause the Applicant to deeply ruminate on the Respondent’s approach to Basic Fatigue Management Rules and its general approach to basic fatigue management and general road safety. It is again consistent with the findings in the medical evidence which was not challenged that the Applicant remained preoccupied with the risk of drivers being involved in truck accidents involving injury or death. These concerns arose as a result of his experiences whilst employed by the Respondent.

6. The approach to driver rescue or as sometimes was called driver salvage by the Respondent also was a contributing factor to the Applicant’s injury. There were the events of 24 October 2018 and the subsequent discussion that the Applicant had with Mr Eddy on 25 October 2018 that clearly raised his concerns. The Applicant felt that the Respondent’s approach to Basic Fatigue Management rules was one of non-compliance.

7. There was also the event of 16 November 2018 where the Applicant was again asked to engage in an active driver rescue which he refused to do. He considered that the events of that day were further reflections on the fundamental approach to basic fatigue management adopted by the Respondent. It is clear that these events caused him to ruminate on the issues of fundamental road safety and Basic Fatigue Management rules. He believed that the Respondent was not taking these critical matters seriously.

8. The Applicant also identified the interruptions to his rest time which occurred in the evening of 22-23 October 2018. The Tribunal accepts that his sleep was disturbed. It also finds that it did breach the continuous seven hours stationary rest time requirement. This also caused the Applicant to ruminate on the questions of Basic Fatigue Management rules and the general approach to road safety on the part of the Respondent.

9. The Tribunal also finds that the load safety concerns identified by the Applicant in his evidence were also a contributing factor to a significant degree to the injury from which he suffers MDD. The concerns about load safety identified by the Applicant occurred over some time. It has been recounted earlier that they commenced as early as June 2018 when he took photographs of insecure loads

   For the reasons outlined above concerning the meeting on 5 December 2018 and his assignment on yard duties 9 December 2019, The Tribunal does not find that the Applicant was bullied.

   Consideration of specific submissions by the Respondent

10. Some observations should be made about specific submissions on the part of the Respondent.

11. The Respondent contends from at least 15 October 2018 the Applicant had sought to achieve compliance by the Respondent with a number of personal demands including to be always assigned to a Canberra run. The conversation on 15 October 2018 does not go that far. He suggests to Mr Eddy it would be great if he could be given a permanent Saturday/Sunday run. It was at best an expression of interest and did not go so far as to be a demand as alleged by the Respondent.

12. It is further contended by the Respondent that over the period of 7 to 12 December 2018, a particular demand was brought into question and that Applicant was allocated an overnight run. The Tribunal does not find that the requests of the Applicant over that time span reached the level of a demand in the relevant sense. At best, he expressed a preference that he would like to continue with the Canberra run that he had been on since the start of his permanent employment. It is then submitted that by means of the claim for compensation the Applicant has sought to have the employer comply with these demands.

13. It was then said that the Applicant resorted to an impermissible use of the compensation claim particularly when it is looked at in the light of his demands made in the conversation of 4 January 2019 with Waters. There is no doubt that that conversation was on his part heated. There is no doubt that around that time and in several conversations, he requested if not demanded, three conditions be satisfied to ensure his return to work. The Tribunal considers that these demands were made in the context of genuine endeavours by both parties to arrive at a return to work program following the Applicant’s illness which had been sustained by that time. It should not be forgotten that on the medical evidence, the Tribunal has found that Applicant suffered his illness by November 2018 at the very latest.

14. The Respondent contended that as the Applicant’s claims of bullying, particularly against Malseed, were rejected that there was a corresponding increase in the tempo of his claims concerning unlawful or illegal acts on the part of the Respondent, coupled with the threat to report those allegations to the union and the relevant authorities. Whilst there is some force in this contention that the emphasis became more on illegal acts rather than allegations of bullying, the Applicant nonetheless continued to maintain them at all times. The response to the letter of 7 January 2019 from the Respondent certainly maintained the bullying allegations. It should also be recalled that the letter from the Respondent sought particulars of the illegal acts alleged by the Applicant.

15. The Tribunal would not go so far as to accept a contention if it is in fact meant to be put, that way, that the Applicant’s compensation claim was made for the collateral purpose of securing additional benefits from the Respondent as his employer. There was a proper basis for the making of the claim based upon the Certificate of Capacity signed by Dr Mobilia 12 December 2018. The fact that demands may have been made, as in fact they were at that time, is beside the point. Once again it should be repeated, that the medical evidence reveals that by the time of the compensation claim the Applicant was suffering from a recognised mental illness namely MDD.

16. For these reasons, the Tribunal rejects the primary submissions for denial of liability advanced by the Respondent; in particular at paragraphs 45 to 47 of its written submissions.

    Exclusionary proviso

17. In the alternative, the Respondent formulated a subsidiary submission which relied upon the exclusionary proviso contained in s 5A(2) of the Act. The Tribunal cannot accept this submission. There are several reasons for this.

18. The submission relying upon the operation of the exclusionary proviso was predicated upon the Tribunal finding that the Applicant suffered some form of mental health symptoms on

    
    

    12 December 2018, due to his interactions with Malseed and to a lesser degree Morton which would amount to an injury within the meaning of the Act.[56] For the reasons already articulated, the Tribunal has found that by 12 December 2018, the Applicant had already suffered the injury. Therefore, the injury had been suffered prior to any of the acts relied upon by the Respondent as amounting to reasonable administrative action assuming that they otherwise can be classified as administrative action.

    [56] See in particular, paragraph 49 of the Respondent’s Submissions.

19. In any event, the Tribunal finds that what occurred on 12 December 2018 did not constitute administrative action within the meaning of s 5A(2) of the Act. It is appropriate to refer to case of Commonwealth Bank of Australia v Reeve,[57] in which during the course of discussing s 5A(1) of the Act, Rares and Tracey JJ said:

    The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee's employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee's employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists — the person's employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at [72]-[73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen from the facts in Commonwealth v Rutledge (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks the employee developed into an active psychotic. As Menzies J put it (at 11):

    “ … it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.” (Emphasis added.)

    Here, Mr Reeve's employment included the tasks of attending the teleconferences and dealing with the consequences, results and outcomes of the customer surveys. Thus, the teleconferences, customer surveys and their uses were not administrative action taken in respect of his employment — they were part and parcel of his employment.

    The non-exhaustive list of examples of “reasonable administrative action” in s 5A(2) could not confine the meaning of that expression as used in s 5A(1). So much follows from the chapeau to s 5A(2) that contained the words “without limiting” in referring to the expression “reasonable administrative action”: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J with whom Barwick CJ at 674 and Aickin J at 680 agreed. Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee's performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee's employment dispel anyPAGE 19 OF 20 doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1). Likewise, s 5A(2)(e) and (f) provided that this expression included anything reasonably done in connection with either any of the actions in s 5A(2)(a) to (d) or the employee's failure to obtain a different position or to obtain or retain a benefit in connection with his or her employment.

    Each instance referred to in s 5A(2), however, concerned something outside the actual employment, or job, that the employee was required to perform. An appraisal involved reviewing how the employee performed his or her employment and so can be seen readily to fit into action taken “in respect of the employee's employment”. Each of the instances in s 5A(2) was of a matter that was in respect of, but apart from, ordinary duties or tasks of the employee's employment or job itself.[58]

    [57] (2012) 199 FCR 463.

    [58] Ibid [60]-[63].

20. These passages demonstrate that the allocation of a Griffith-Biada-Marrickville run to the Applicant by Morton and the discussions that he had with Malseed on 12 December 2018 (or for that matter his earlier interactions with Malseed such as the meeting between them on 5 December 2018) concerned tasks, hours and workload to be undertaken. They were operational rather than administrative. They were not specific administrative action directed to the Applicant's employment itself. They related to and were action forming part of his everyday duties or tasks that he performed in his job. It should be recalled that the contention of the Respondent in the evidence adduced on its behalf was that at all times the Griffith-Biada-Marrickville run was one to which the Applicant could be allocated as well as the Canberra run. He was employed as a road transport driver under his contract of employment. Such contract did not identify, or specify, a specific run to which the Applicant was allocated or required to perform. The contract specifically provided that drivers may be subject to irregular work schedules and should be prepared to undertake trips and tasks that may necessitate their spending overnight away from their home location when/where required and/or as directed by company management. That is precisely what occurred on 12 December 2018.

21. It was suggested by the Respondent that the facts and circumstances concerned constituted reasonable administrative action because they were done in connection with the Applicant’s failure to retain a benefit being the Canberra run. Once again, the Tribunal cannot accept this contention, there was no benefit, as undertaking the Canberra run was part of his every day or normal duties that it was within the Respondent's power as his employer to allocate or roster him to, as it was to allocate or roster him to a Griffith-Biada-Marrickville run. There was also no transfer to an alternative work location or position as in Comcare v Drinkwater (‘Drinkwater’)[59]– certainly not at least on a true and proper construction of his contract of employment.

    [59] (2018) 260 FCR 150.

22. The Respondent sought to develop an argument based upon a more recent decision of the Full Court of the Federal Court of Australia in Drinkwater.[60] The Applicant in that case was a customs officer performing duties including shifts. He was transferred as part of an employer’s mobility policy from one airport to the Customs House. It was not disputed that such decision once confirmed after several representations from him caused the Applicant to suffer an adjustment disorder with anxiety. The question for determination by the Full Court was whether the decision to transfer the Applicant was administrative action within the meaning of s 5A of the Act.

    [60] (2018) 260 FCR 150.

23. The case of Drinkwater can be distinguished from this case in several respects. The Terms of the applicant’s employment in Drinkwater were covered by a written “Mobility Policy” authorised under the provisions of s 25 of the Public Service Act of which he was first made aware upon joining the public service. [61] This allowed his transfer from different divisions. The mobility policy was not implemented for some years and did not affect him until 2013. The Department took administrative action “in respect of” Drinkwater’s employment by making a decision to transfer him from his post at Sydney Airport to a different one in the Customs House. There was no dispute that employment was a significant contributing factor to his illness. The application of the exclusionary proviso was due to what was asserted to be a failure to retain a benefit which was a transfer to a non-shift role involving the loss of income from shift penalties.

    [61] As to s 25 the Full Federal Court observed: “Section 25 of the PS Act provided that “[a]n Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed” at [4].

24. It is worthwhile citing one passage from the Full Court’s decision in Drinkwater which demonstrates how it can be distinguished from this case, as follows:

    In the present case, the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ: see Tribunal’s reasons at [36]. This was administrative action taken with respect to Mr Drinkwater under s 25 of the PS Act: see further Director-General of Education v Suttling (1987) 162 CLR 427at 437–8; 69 ALR 193 at 200–1; 12 ALD 245 (Brennan J, with whom Mason ACJ and Deane J(2018) 158 ALD 244 at 260agreed). It was action that took Mr Drinkwater’s employment “as a factum”, to use the language of Rares and Tracey JJ in CBA v Reeve at [60]. Although discussing a different provision of the SRC Act, Dowsett J, with whom Spender J agreed, reasoned in a similar way in John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566; 117 ALD 215; [2010] FCAFC 88 at [72]–[73]. This action was plainly taken “in respect of” Mr Drinkwater’s employment because it was action directed specifically to his employment and taken in respect of his employment. A determination by the employer that the employee will move from his or her existing post to a new post in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee.[62]

    [62] Comcare v Drinkwater (2018) 260 FCR 150 [70].

25. In this case there was as noted above, no transfer to an alternative work location, post or position as occurred in Drinkwater. It should also be recalled that the Canberra run was not the only task or run undertaken by the Applicant. He was also allocated other Riverina runs as well as training and assessment runs, which included amongst other things VOC's. In carrying out those tasks he undertook runs to the greater Riverina area and Victoria. There was no benefit within the meaning of the exclusionary provision as these were his normal tasks.  

1. Additionally, in Drinkwater, there was medical evidence showing concern over the transfer as the sole cause of the Applicant’s employment distress. In this case as contended for by the Applicant there have been serious and long-term concerns held by the Applicant with respect to safety of himself, drivers and other road users against the Respondent’s alleged breaches of the National Heavy Vehicle Law. There were a series of acts or events which the Tribunal has found contributed to the condition from which the Applicant has been diagnosed namely that of MDD.

2. Additionally, there is no medical evidence to point to a contribution from any administrative action to the injury from which the Applicant suffers namely MDD. The Tribunal accepts the contention of the Applicant that there is nothing in the history particularly referred to by the medical witness called by the Respondent Dr Ventura (let alone Dr Mobilia or Dr Sowden) which concludes that administrative action concerning any benefit in connection with the Applicant’s employment caused such illness.

   CONCLUSION AND DECISION

3. By reason of the foregoing consideration the Tribunal considers that the correct preferable decision is as follows:

   (a)The reviewable decision is set aside.

   b.    In substitution therefore the Tribunal finds:

   i.The Applicant suffered incapacity and impairment as a result of injury identified as DSM-5 diagnosis of major depressive disorder which arose out of or in the course of his employment with the Respondent, or to which that employment contributed to a significant degree, the subject of a claim for compensation dated 14 December 2018, and which gives rise to entitlement to compensation pursuant to s 14 of the Act.

   c. The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to s 67 of the Act.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.........................[sgd]...............................................

Associate

Dated: 17 September 2021

Date of hearing:	10, 12, 13, 14, 15 & 16 October; 1, 2, 3 & 4 December 2020
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Nevin Lenne Gross
Counsel for the Respondent:	Mr Charlie Clark
Solicitors for the Respondent:	Hall & Wilcox Lawyers