Bracken and Australian Postal Corporation
[2004] AATA 939
•10 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 939
ADMINISTRATIVE APPEALS TRIBUNAL )
) A2003/284
) A2003/285
GENERAL ADMINISTRATIVE DIVISION ) Re GLENN BRACKEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date10 September 2004
PlaceCanberra
Decision The decisions under review in applications A2003/284 and 285 are set aside and in substitution thereof the Tribunal decides that Mr Bracken suffered an injury (aggravation of depression) on 8 August 2002 in relation to which Australia Post is liable to pay compensation.
Australia Post is to pay Mr Bracken’s reasonable costs in these proceedings as agreed or taxed.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION – injury – disease – depression - multifactorial condition - stress - pressure to meet performance standards - claims of harassment, bullying and teasing - personality predisposition and previous psychological trauma - material contribution by employment - scope of disciplinary framework - reasonable disciplinary action - contributory employment factors not all exclusionary - decision set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4, 7, 14, 67
Compensation (Commonwealth Government Employees) Act 1971 (Cth)Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Rizkallah and Australian Postal Corporation (1991) 14 AAR 348
Re Quarry and Comcare (1997) 47 ALD 113
Re Arthur and Comcare (2004) AATA 241
Re Murray and Comcare (1998) AATA 12706)
Re Wicks and Telstra Corporation Ltd [1997] AAT 12448
Re Inglis and Comcare (1997) 49 ALD 183
Comcare v Mooi (1996) 69 FCR 439
Trewin v Comcare (1998) 84 FCR 171
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Weigand v Comcare (2002) FCA 1464
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Comcare v Amorebieta (1996) 22 AAR 539)REASONS FOR DECISION
September 2004 Mr S. Webb, Member 1. By these applications Glenn Bracken is seeking relief from reviewable decisions by the Australian Postal Corporation (“Australia Post”) to deny his claims for payment of compensation in relation to a right shoulder and neck injury and depression.
2. The matter came on for hearing in Canberra on 16, 17 and 19 August 2004. Mr Bracken was represented by Mr A. Anforth, counsel. Australia Post was represented by Mr D. O’Donovan, counsel. Mr Bracken, Mr A. Berenyi, Mr A. Branson, Dr W. Knox, Mr T. Sutton and Dr J. Saboisky gave oral evidence. Materials were tendered and labelled as exhibits.
factual context
3. The following material facts arise from the evidence.
4. Mr Bracken (date of birth 23 August 1964) was employed by Australia Post as a Postal Delivery Officer from 1 March 2001.
5. Mr Bracken is left handed. He was required to sort mail using a V-sort frame designed for use by a right handed person from November 2001 or thereabouts. He suffered an injury to his right shoulder and neck in the course of his employment in February 2002. He had difficulties meeting his performance targets and his performance was erratic thereafter. Mr Bracken was repeatedly counselled in relation to his erratic performance and in relation to incidents in the course of his employment prior to August 2002 and thereafter.
6. On 26 February 2002 Mr Bracken lodged an incident report form concerning “muscular pain in right shoulder and right side of neck… while sorting letters on V-sort frame” (AT3). Mr King recorded that “Glen [Bracken] is over 6 feet tall. Requested 4th module. Sits down while throwing off. Dubious?” and recommended “Perform stretching exercises as per V-sort manual, Lower shelving while sequencing. Do not sit down while sequencing.” (AT 3 folio 11).
7. On 15 April 2002 Dr Reading, facility nominated doctor, certified that Mr Bracken was suffering from “muscular pain R trapezius – overuse” and was fit to return to work with restrictions “No V-sorting above shoulder height. Extra module recommended. Physiotherapy. NSAIDs”. That day, Mr Bracken lodged a compensation claim in relation to “Pain in right shoulder and RHS of neck” and stated “Sorting mail into V frame the pain increased. The more I used the frame, the worse it got.” Mr Bracken’s supervisor, Mr K. Rodda, recommended acceptance of the claim. Mr Bracken was not provided with an extra V-sort module. Australia Post accepted liability for Mr Bracken’s injury on 22 April 2002 with the date of injury being 26 February 2002 (AT6).
8. On 24 April 2002 Ms Donna Trevenar, Occupational Therapist, conducted an assessment of Mr Bracken’s workstation. On 29 April 2002 she reported that Mr Bracken’s pain symptomatology was continuing and recommended adjustments to the V-sort frame he was using (AT7).
9. On 27 May 2002 Dr Reading certified that Mr Bracken was fit to return to work on full duties with the notation “Physiotherapy. Awaiting specialist’s opinion”. On 7 June 2002 he certified that Mr Bracken was unfit for work from 7 June 2002 with the notation “Restrictions No V-sorting – extra module recommended – X-ray cervical spine – Ultrasound R shoulder” (AT9).
10. On 24 June 2002 Dr R. Creer, orthopaedic surgeon, reported “Clinically [Mr Bracken] has an impingement syndrome…” and that “He should also remain on light duties where he avoid shaving [sic] to sort mail at or above chest height” (AT11).
11. On 22 July 2002 Dr Reading certified that Mr Bracken was fit for work with restrictions with the notation “- No V-sorting above shoulder height – Physiotherapy NSAIDs – Steroid injection R shoulder”. On 24 July 2002 Dr Reading certified that Mr Bracken was unfit for work from 24 to 26 July 2002 as a result of “R shoulder tendonitis” (AT14). On 8 August 2002 Dr Reading reviewed Mr Bracken’s condition and, diagnosing him to be suffering from depression, prescribed anti-depressant medication (BT30).
12. On 21 August 2002 Mr Bracken was assessed by Mr H. van Wijk, consultant psychologist, “under [Australia Post’s] Violence in the Workplace policy” in relation to an incident involving reference to a gun which resulted in Mr Bracken being placed on suspension from 9 August 2002. On 22 August 2002 Mr van Wijk reported that “It seems likely that Mr Bracken is suffering from depression related to the stress involved with his marital separation, past experiences and work factors contributing to his present level of functioning” (BT4 folio 13).
13. On 22 August 2002 Australia Post purportedly determined to cease liability for Mr Bracken’s right shoulder and neck injury (AT19) on the basis of a report by Dr Whittaker, consultant rheumatologist (AT18). The determination was affirmed in a reviewable decision dated 18 November 2002 (AT27). On 10 August 2004 Australia Post decided in an own motion reconsideration to set aside the determination, accepting that liability for Mr Bracken’s right shoulder and neck injury was ongoing.
14. On 26 August 2002 Mr K. McLoughlin, Human Resource Consultant, reported on his inquiry into an alleged breach of Australia Post’s Code of Ethics by Mr Bracken with the purpose of recommending appropriate action. Mr McLoughlin found the breach proven and recommended that “Mr Bracken be given a Warning Counselling” and observed “There are no previous disciplinary matters evident on his file. Conduct Improvement initiatives have been noted…” (BT5 folio 22 - 23 ).
15. On 29 August 2002 Dr Reading certified that Mr Bracken was unfit for work from 29 August to 6 September 2002 as a result of “Reactive anxiety/depression” “secondary to R shoulder tendonitis” (AT21).
16. On 20 September 2002 Mr J. Andrews aborted the warning counselling with Mr Bracken because “it became apparent to me during the course of discussions about mitigating circumstances that Mr Bracken was the victim of a “get square” by his Team Leader Ms Lesley Taylor” (BT9). In consequence, Mr Bracken’s disciplinary action was reduced to a face to face interview with a three month review period (BT11).
17. On 24 October 2002 and 22 November 2002 Mr Bracken lodged incident reports concerning pain symptomatology in his right shoulder and neck using the V-sort frame (BT 12 and 13).
18. On 3 January 2003 Mr Bracken lodged an incident report concerning “stress” in relation to “Pressure put on by MOS times. Constant intimidation by management. Been put under the spotlight all the time.” (AT28).
19. On 6 January 2003 Dr Reading certified that Mr Bracken was suffering from “Reactive depression” and was fit to return to work with the notation “- Trial of antidepressants – counselling” (AT29). On that day Mr Bracken lodged a claim for compensation in relation to stress on 20 December 2002 in relation to which Mr K. Farah noted “Regarding claim by Glen Bracken of being stressed by constantly being asked why he is not meeting times by the MOS system” that “It is part of work practices to check on staff who are not meeting their times out and finding reasons to help them improve their performance”. Mr Farah concluded “I do not recommend that this claim be accepted but I will offer Mr Bracken to attend counseling to try and get rid of his stress.” (AT 30).
20. On 10 January 2003 Australia Post determined to reject Mr Bracken’s claim (AT31).
21. On 2 May 2003 Dr Reading certified that Mr Bracken was unfit for work from 15 April to 2 May 2003 as a result of “acute stress/depression” and from 2 May to 2 June 2003 (BT18).
22. On 21 May 2003 Mr Bracken lodged an incident report in relation to “stress” for which he was treated by Dr Reading on 15 April 2003 as a result of “constant harassment by management. Harrassed over MOS times, delivery standard and damage to Aust Post property”. Mr Branson noted “Mr Bracken’s performance and conduct has been under scrutiny for over 6 months. He continues to avoid meeting his commitments to Aust. Post.” (BT21 folios 56 and 57).
23. On 23 May 2003 Mr Bracken lodged a claim for compensation in relation to stress resulting from “Starting work 14.4.03 called into office and harassed by management. Not the first time” (BT 22 folio 58). In response Mr Branson wrote (BT 23 folios 61-62):
“Clearly I have placed Mr Bracken under pressure in order to improve his poor performance and conduct. At each stage of our discussion’s, [sic] assistance has been offered in the form of counselling via EARS and I have even involved the Area Manager [Mr Andrews] in order to ensure that the issues are addressed firmly but effectively, taking into account the employee’s concerns and rights.
As Manager of this facility, I have to ensure that not only the facility is managed efficiently but also all staff conducts themselves in an appropriate manner. Mr Bracken does not want to perform or conduct himself in a manner which is appropriate for Australia Post and therefore it is of my view that this claim should not be accepted as this will send an incorrect message to all staff that [sic] this facility.”
24. On 29 May 2003 Australia Post determined to reject Mr Bracken’s claim (BT24).
25. On 11 July 2003 in a reviewable decision an Australia Post delegate affirmed the determination to deny Mr Bracken’s January 2003 compensation claim, observing (BT31):
“It is concluded that [Mr Bracken’s] inability to deal with the reasonable demands of his duties has been the causal factor in his medical condition, rather than the duties themselves in his facility.”
On the same day the determination denying Mr Bracken’s May 2003 compensation claim was affirmed in a reviewable decision. The delegate stated (BT32 folio 79):
“I note the report from the manager Tony Branson dated 23/5/03 in relation to the meeting that occurred on 14/4/03 and I am satisfied that it meets with reasonable disciplinary practice.
Therefore… I am satisfied that any condition [Mr Bracken] alleges to be suffering from has arisen out of reasonable disciplinary action and as such falls under the exclusionary provision of the SRC Act 1988.”
26. By applications A2003/284 and 285 to this Tribunal Mr Bracken pursued his rights of review in relation to the reviewable decisions concerning depression and stress.
legal principles
27. Mr Bracken’s applications rise for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Liability to pay compensation arises in relation to an injury. “Injury” is defined to include a “disease”, which is defined to be an ailment that is materially contributed to by employment (s.4). The definition of “injury” excludes a disease that is the result of reasonable disciplinary action.
28. In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 (see paragraphs 24 to 32) Cooper J considered the disciplinary exclusion to the definition of “injury” and observed that “The only matters which fall to be determined under the definition are: (a) Was the action which resulted in the injury disciplinary action? (b) If “yes”, was it reasonable?”. Cooper J was of the opinion that disciplinary action could not be found unless the following questions were answered:
“1. What discipline or rules of conduct apply to an employee of
the Commonwealth?
2. In what circumstances can the Commonwealth as an employer
take action of a disciplinary nature to enforce the
discipline or rules of conduct against an employee?
3. What type of action may the Commonwealth take against an
employee if the circumstances giving occasion to the taking
of disciplinary action exist?”
The term “disciplinary action”, in the context of the definition of “injury”, is “reasonable action lawfully taken against an employee in the nature of or to promote discipline” and is not limited in its meaning to action involving a sanction or punishment (see Re Rizkallah and Australian Postal Corporation (1991) 14 AAR 348). The scope of the term “reasonable disciplinary action” has been previously considered by the Tribunal. Action that is anterior to a decision to take disciplinary action, that is action of a preliminary or informal nature, is not disciplinary action (see Chenhall (supra); Re Quarry and Comcare (1997) 47 ALD 113; Re Arthur and Comcare (2004) AATA 241; Re Murray and Comcare (1998) AATA 12706). In Re Wicks and Telstra Corporation Ltd [1997] AAT 12448 it was found that “it was necessary to balance the objective of the employer to maintain or promote discipline of employees and the rights of the employee”. In Re Inglis and Comcare (1997) 49 ALD 183 the Tribunal concluded that it “should include in its consideration the issue of ‘fairness’.”
29. If a disease is multifactorial, only employment related factors that materially contribute to the condition are relevant for compensation purposes under the Act. When considering whether an “injury” has occurred under the Act in the case of a multifactorial disease, it is necessary to ascertain whether the contributory and operative employment factors are within the exclusions to the definition of “injury”. If all those factors are exclusionary the employee is not entitled to succeed. However, if any one of those factors is not exclusionary, and the definition of “injury” is satisfied, then the claim may succeed (see Comcare v Mooi (1996) 69 FCR 439 and Trewin v Comcare (1998) 84 FCR 171).
30. When considering whether the employment made a material contribution to the ailment it is relevant to consider the words of the Full Federal Court in relation to a similar question under the Compensation (Commonwealth Government Employees) Act 1971 in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323:
“…the section [s.4 definition of “disease”] is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
31. Von Dousa J said in Weigand v Comcare (2002) FCA 1464 at paragraphs 24 and 31:
“24 It will be noted that Kitto J [in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632] does not introduce any qualification or refinement to the meaning to be given to "employment" which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a "reality" test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
…
31 In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
issues
32. The issues for determination by this Tribunal are whether Mr Bracken suffered from a disease, being an ailment or the aggravation of an ailment, that was materially contributed to by his employment, and if so whether that disease is within the exclusionary terms of “injury”, and if, in whole or in part, it is not, then whether Mr Bracken is entitled to payment of compensation.
summary findings
33. Mr Bracken suffered from depression prior to his employment by Australia Post.
34. At all relevant times Mr Bracken was an employee under the Act.
35. The applicable rules of conduct are set out in the Australia Post Enterprise Agreement December 2001 and the Code of Ethics to which it refers.
36. The circumstances in which Australia Post may take action of a disciplinary nature against an employee are circumstances in which the employee’s conduct falls below the standards set out in the Code of Ethics. The disciplinary actions that Australia Post can take in those circumstances are set out in the Australia Post Enterprise Agreement 2001 and the Employee Conduct Improvement and Discipline Process. I note, however, that actions that are anterior to a decision to take disciplinary action are not, of themselves, disciplinary actions.
37. Mr Bracken suffered an aggravation of depression that was materially contributed to by factors in his employment that did not constitute “reasonable disciplinary action” within the exclusionary terms of the definition of “injury”. The aggravation of his depression is an injury under the Act that is compensable.
38. The date of injury is 8 August 2002, when Mr Bracken first sought medical treatment for the aggravation of his depression. The injury first caused impairment on or about 8 August 2002 and incapacity for work on 22 August 2002.
39. Australia Post is liable to pay Mr Bracken compensation in relation to the injury pursuant to s.14 of the Act from 8 August 2002.
decisions
40. The decision under review in application A2003/157 is set aside and in substitution thereof the Tribunal decides that the Australian Postal Corporation's liability to pay compensation in relation to Mr Bracken's right shoulder and neck injury did not cease on 8 August 2002 and is ongoing.
41. The decisions under review in applications A2003/284 and 285 are set aside and in substitution thereof the Tribunal decides that Mr Bracken suffered an injury (aggravation of depression) on 8 August 2002 in relation to which Australia Post is liable to pay compensation.
42. Australia Post is to pay Mr Bracken’s reasonable costs in relation to these proceedings as agreed or taxed.
reasons for the decisions
43. Making these decisions I have carefully considered all of the evidence, the credit of witnesses, the submissions of the parties, the relevant case law and legislation.
disease
44. The evidence is that Mr Bracken has a history of depressive illness over an extended period, probably from the age of 17 or thereabouts. I so find. It is not necessary here to set out the circumstances or causes of his previous depression. It is likely that the symptoms and intensity of Mr Bracken’s depression have fluctuated over time in response to environmental factors. There is no evidence before me that he was being treated for depression when he commenced employment with Australia Post in 1999 or subsequently in 2000 or in 2001.
45. The evidence is that Mr Bracken consulted Dr Rowe in January 2002 complaining of symptoms of depression at that time. Plainly, his depression was multifactorial. The break down of his marriage and a trial separation from his wife in January 2002 contributed to cause the re-emergence of overt symptoms of depression in Mr Bracken at that time. The evidence is that in all likelihood he suffered a predisposition to depression and a susceptibility to perceive persecution in his employment. It matters not for present purposes that Mr Bracken was so disposed by factors in his personality or his past that were beyond his control (see Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Comcare v Amorebieta (1996) 22 AAR 539). Nor does the multifactorial nature of the aggravation of his depression defeat his claim (see Trewin v Comcare (1998) FCA 913).
46. I am satisfied on the balance of probabilities that Mr Bracken’s employment with Australia Post materially contributed to aggravate his depressive disorder and so find. The preponderance of medical opinion supports that conclusion.
On 26 June 2003 Mr Sutton reported (BT 27 folio 66):
“Mr Bracken’s current significant depression appears to be a result of cumulative pressures within the workplace: shoulder injury, pressure to make time commitments, interpersonal clashes with colleagues, suspensions, blamed for damage to the workplace facility and threatened job loss.”
On 3 July 2003 Dr Reading stated (BT 30 folio 76):
“In summary, Glenn Bracken appears to be suffering the direct effects of a work related shoulder injury, and reactive anxiety and depression related to the chronic nature of the problem, the stress involved with his work situation and the fact that his compensation claim has been denied.”
On 6 November 2003 Dr Saboisky reported (Exhibit R2, p6):
“3. His work related problems, while the result of a high degree of interpersonal sensitivity, may have exacerbated his depression.”
On 19 November 2003 Dr Knox reported (Exhibit A3, p9):
“3. I judge that Mr Bracken’s disturbed psychiatric health in the course of the last two years has resulted from the difficulties faced in his workplace both arising from his physical injury and the unpleasant interpersonal work environment.”
injury
47. In Australia Post’s submission any work related aggravation of Mr Bracken’s depressive disorder was as a result of reasonable disciplinary action. As will appear, I do not agree.
48. The Australia Post Code of Ethics (Exhibit R5) sets out applicable standards of behaviour, breach of which may lead to disciplinary action on the part of an employee. The specific disciplinary action that may be taken in the case of a breach or an alleged breach of the Code of Ethics is set out in the Australia Post Employee Conduct Improvement and Discipline Process Managers Guide (Exhibit R6) (“the Discipline Process”).
49. The Discipline Process includes four stages, each of which constitutes disciplinary action for present purposes: “Face to Face Discussions”, “Face to Face Interview”, “Warning Counselling” and “Inquiry”. I note, however, under the first two stages of the Discipline Process involving face to face discussion or interview, that the employee concerned is to be given an opportunity to “answer the allegation and/or provide an explanation for their conduct prior to a decision to discipline the employee… If discipline action is to result, the employee needs to understand the discussions are in relation to a minor breach of the Code”. In either stage:
“> The matter may be dealt with under alternative processes such as Employee Assistance Program (Welfare), Alcohol and Drug Dependence Programs, refresher/additional training etc where appropriate.
> Where a breach of the Code has occurred, the employee should be assisted by:
·explaining that the particular conduct that has occurred is unacceptable and why;
·advising the employee of the standard of conduct expected under the Code of Ethics
·discussing and jointly identifying what needs to be done to prevent a repeat of the unacceptable conduct including whether any assistance can be given to the employee.
·A review should be undertaken within a reasonable period of time focussing on any assistance that was provided and the employee’s progress.
> The Manager should make a brief diary note to assist in the monitoring of remedial action, as it is essential that the follow-up take place at the agreed time(s).”
50. Plainly, in either of these “Face to Face” processes or stages a preliminary discussion is envisaged that is anterior to a decision to take disciplinary action and that, as a result of that preliminary discussion a decision could be taken to deal with the matter under a process other than the disciplinary process. Following Chenhall (supra) (at 37 FCR 84) such preliminary action is not “disciplinary action” for present purposes. It is not because it is anterior to a decision to take disciplinary action in the specific circumstances.
51. Mr Bracken’s evidence, which I accept, was that he first experienced pain in his right shoulder and neck using the V-sort frame at the Phillip Mail Centre in or about December 2001. Thereafter he experienced difficulties meeting his sorting and delivery Management Operating System (“MOS”) times. The evidence is that he lodged an incident report form in relation to those alleged pains in relation to using the right V-sort frame on 26 February 2002 and requested a left V-sort frame. That request was denied. His evidence which I accept is that using his right hand and arm to operate controls on his postal delivery motor bike while delivering mail contributed to his symptoms of pain, especially in the cold.
52. The evidence is that in May 2002 and thereafter he was repeatedly questioned about erratic performance outcomes in relation to his MOS times by Mr Branson. A review of Mr Bracken’s delivery times was conducted in consequence of which his postal delivery times were increased in or about June 2002.
53. There is evidence that Mr Branson was frustrated by Dr Reading’s comments in relation to work practices and his certifications in relation to Mr Bracken. However, the medical assessments of Mr Bracken’s right neck and shoulder symptoms in April, May, June and July 2002 plainly reveal that his symptoms were ongoing. There is also evidence that Mr Branson put Mr Bracken “under pressure” to meet his MOS times during this period. Mr Branson’s evidence was that “all staff are reviewed on a daily basis” against MOS times and “Mr Bracken’s performance depended on how he felt on the day”. I accept that evidence and find that Mr Branson discussed performance issues with Mr Bracken on a frequent and probably daily basis in and after May 2002.
54. For such discussions to be considered to be disciplinary actions under the Discipline Process, each must conform to the requirements set out therein. That is, in each case the employee must be given an opportunity to explain the alleged behaviour in question prior to a decision to take disciplinary action and if disciplinary action is to be taken then that must be clear to the employee and a review period agreed upon, focussing on any assistance that was to be provided and the progress of the employee.
55. Considering all of the evidence I am satisfied that discussions between Mr Branson and Mr Bracken about performance issues in relation to MOS times prior to August 2002 were, at the highest, informal performance counselling. I am satisfied that those informal performance counselling events were not disciplinary actions taken under the Discipline Process and so find. I note that Mr McLoughlin reported on 26 August 2002 that there were no previous disciplinary matters on Mr Bracken’s file (BT5, folio 23). However, if I am wrong and those informal counsellings are within the exclusionary provision I would be compelled to conclude that they are, in substantial part, not reasonable actions in the circumstances of Mr Bracken’s injury, the medical restrictions that applied and the failure of his supervisors to properly identify or address the reasons for his performance difficulties as required under the Discipline Process.
56. The medical evidence is that Mr Bracken was clinically depressed when he was reviewed by Dr Reading on 8 August 2002 (BT30) and subsequently when he was assessed and treated by Mr van Wijk after 21 August 2002. Both medical practitioners were of the opinion that employment factors were operative in relation to Mr Bracken’s depression.
57. Considering the weight of the medical evidence, I am satisfied it is more likely than not that the difficulties Mr Bracken experienced meeting his MOS times prior to August 2002 were in significant part related to his right shoulder and neck injury. Mr Bracken received informal counselling on a frequent and regular basis in relation to his failure to meet his MOS times, which added to the stress he experienced. His performance difficulties and frequent informal counselling were common knowledge in his workplace, where a culture of teasing and name-calling existed, and caused Mr Bracken to experience embarrassment and difficulties with his peers. Applying the civil standard of proof I am satisfied that, in fact and in truth, these events materially contributed to aggravate his depression, and so find.
58. That being so, Mr Bracken is entitled to payment of compensation in relation to the aggravation of his depressive disorder. The date of his injury in that regard is the day he first obtained treatment for the aggravation or the first date of impairment or incapacity caused by it (s.7(4)). In Mr Bracken’s case, the evidence of Dr Reading is that he treated Mr Bracken’s depression with medication on 8 August 2002 (BT30). Accepting that evidence, it follows that the date of Mr Bracken’s psychological injury is 8 August 2002. I do not accept that Mr Bracken’s consultation with Dr Rowe in January 2002 was in relation to any aggravation of depression by his employment.
59. It is not strictly necessary to progress further and make findings in relation to other alleged events that are in issue.
60. However, for completeness, I find that Mr Bracken was the subject of disciplinary actions in relation to his utterances concerning guns in the workplace on or about 16 May 2002 and 9 August 2002, in relation to which breaches of the Code of Ethics were found. I note, in relation to the latter, that the level of the disciplinary action was subsequently reduced by Mr Andrews following his finding that Mr Bracken had been the subject of a “get even” campaign levelled against him by his supervisor, Ms Taylor. I am also satisfied that warning counselling conducted by Mr Hesse on December 2002 in relation to an alleged incident on or about 9 December 2002 was disciplinary action. That action was subsequently withdrawn by Mr Andrews as disciplinary action was not taken against two other employees implicated in the alleged 9 December 2002 incident. Plainly, whether these disciplinary actions were reasonable in the circumstances is open to question.
61. I am satisfied that there were elements of unfairness in these disciplinary actions in August, September and December 2002 which render them unreasonable in the circumstances. In the former, the level of disciplinary action was reduced after an inquiry when the “get even” campaign of Mr Bracken’s supervisor came to light. However, Mr Bracken was placed on suspension for the purpose of an inquiry into the allegation that was brought against him by that supervisor. I find that the level of the disciplinary action was not reasonable in those circumstances. In the latter case, the disciplinary action was retrospectively removed as no equal action had been taken against other employees who were implicated in the alleged incident concerning “the silver fox”. The absence of equal treatment renders the disciplinary action unreasonable. Unfortunately, retrospective removal does not displace the fact that disciplinary action was taken against Mr Bracken unfairly.
62. The right of an employer to maintain discipline in the workplace must be balanced with the rights of an employee to fair treatment. Those are relevant factors to consider when determining whether disciplinary action is reasonable in the particular circumstances (see Re Wicks (supra) and Re Inglis (supra)). In this case, while it may have been reasonable for Australia Post to take disciplinary action against Mr Bracken in relation to the incidents to which I have referred, Mr Bracken was entitled to expect that the Discipline Process would be properly and fairly applied. Plainly, that did not occur in relation to these incidents. The disciplinary action taken against Mr Bracken in those circumstances was not reasonable disciplinary action within the exclusionary provision.
63. I am satisfied that the following incidents added their measure to Mr Bracken’s depressive disorder but were not disciplinary actions under the Discipline Process:
·Mr Branson questioning Mr Bracken about bundles of mail under a tub on 8 August 2002;
·an altercation with Ms Taylor concerning Mr Bracken’s visit to Dr Reading on 8 August 2002;
·Mr Branson directing Mr Bracken not to stand on mail tubs and not to sit down when sorting mail in or about August, September and October 2002;
·Mr Branson questioning Mr Bracken in relation to a bundle of mail found in a mail tub on or about 15 October 2002;
·a performance review assessment conducted by Mr Branson in relation to Mr Bracken on or about 13 November 2002;
·communications between Mr Branson and Mr Bracken on or about 14 April 2003 in relation to damage to a wall and door which were preliminary to disciplinary action;
·name-calling and teasing of Mr Bracken by co-workers in the Phillip Mail Centre; and
·Mr Bracken’s perception arising from these actual events that he was being harassed and victimised at work.
64. Considering the foregoing, even if I am wrong in finding that Mr Bracken’s injury-related performance difficulties and informal counselling prior to August 2002 materially contributed to aggravate his depressive disorder, I would be compelled to conclude that the employment factors to which I have referred [61 and 63] materially contributed to that disorder and are not within the exclusionary terms of the definition of “injury” at s.4 of the Act. That being so, Mr Bracken would be entitled to succeed in his claim.
liability
65. For liability to pay compensation pursuant to s.14 of the Act the injury must result in impairment or incapacity for work. It may be inferred from Dr Reading’s diagnosis and treatment on 8 August 2002 that Mr Bracken suffered a psychological impairment on that date, even though, at that time, he was incapacitated for work. The evidence is that he first suffered incapacity for work as a result of aggravation of his depression on 22 August 2002. It follows that Australia Post is liable to pay compensation for Mr Bracken’s injury pursuant to s.14 of the Act from 8 August 2002. However, if I am wrong in that regard, liability under s.14 would arise on 22 August 2002 when Mr Bracken first suffered incapacity for work as a result of his psychological injury.
conclusion
66. By agreement of the parties, the decision under review in relation to Mr Bracken’s right shoulder and neck injury is set aside. Australia Post’s liability for that injury did not cease on 8 August 2002.
67. For the reasons already stated, Mr Bracken is entitled to payment of compensation in relation to aggravation of depression, which is an injury under the Act. The date of that injury is 8 August 2002.
68. The decisions under review are set aside. That being the case, I order pursuant to s.67(8) of the Act that Australia Post is to pay Mr Bracken’s reasonable costs as taxed or agreed in relation to each of the applications in these proceedings.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 16, 17 and 19 August 2004
Date of Decision 10 September 2004
Counsel for the Applicant Mr Allan Anforth
Solicitor for the Applicant Ms Charmaine Tunn
Counsel for the Respondent Mr Damien O’Donovan
Solicitor for the Respondent Mr Stuart Marris
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