BRETT MCGEE and COMCARE
[2010] AATA 386
•24 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4725
GENERAL ADMINISTRATIVE DIVISION ) Re BRETT MCGEE Applicant
And
COMCARE
Respondent
DECISION
Tribunal G.D. Friedman, Senior Member Date24 May 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ...............[signed]................
Senior Member
COMPENSATION – depressive disorder – fraud investigator – whether condition resulted from reasonable administrative action taken in a reasonable manner – whether condition was an injury
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14(1)
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16
Hart v Comcare (2005) 145 FCR 29
Re Lynch and Comcare [2010] AATA 38
Re von Stieglitz and Comcare [2010] AATA 263
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
REASONS FOR DECISION
24 May 2010 G.D. Friedman, Senior Member
1. Brett McGee works for the Australian Taxation Office (ATO) investigating the alleged selling and distribution of illegal tobacco. On 14 January 2008 he claimed compensation for a depressive condition for which he first sought treatment on 7 November 2007. He said the work-related matters that caused his condition were harassment and bullying by an officer investigating the arrest in 2004 of Mr McGee’s mentor; the complaint by a colleague about the behaviour of officers involved in an operation in which Mr McGee took part; and a proposed transfer to a workplace located with investigators involved in the matter concerning his mentor. The respondent refused the claim on the grounds that Mr McGee’s condition was the result of reasonable administrative action taken by the ATO in dealing with the matters.
LEGISLATIVE BACKGROUND
2. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in section 5A of the SRC Act:
(1) In this Act:
injury means:
(a) a disease suffered by the employee; or
(b)an injury (other than a disease) suffered by the employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment,
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
ISSUE
3. There was no dispute that Mr McGee suffers from a psychological condition which, on the medical evidence, the Tribunal finds is best characterised as depressive disorder which is an ailment that was contributed to, to a significant degree, by his employment with the ATO. Therefore the issue before the Tribunal is whether the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr McGee’s employment such as to exclude him from receiving compensation in accordance with s 5A(1) of the SRC Act because it would not constitute an injury.
4. This involves consideration of the following questions:
· Was action taken by the ATO administrative action? If so:
· Was the administrative action reasonable? If so:
· Was the reasonable administrative action taken in a reasonable manner? If so:
· Was the administrative action taken in respect of Mr McGee’s employment? If so:
· Was the ailment suffered as a result of the administrative action so as to exclude Mr McGee from receiving compensation?
WAS ACTION TAKEN BY THE ATO ADMINISTRATIVE ACTION?
5. By way of background Mr McGee told the Tribunal that he joined the ATO in 2003 as an investigator after about eight years in a similar role with the Health Insurance Commission, and worked in the Serious Non-Compliance (SNC) area investigating possible excise evasion involving the manufacture, distribution and sale of illegal tobacco products. He said that initially he enjoyed his work, which involved travel to rural and regional areas and the execution of warrants to seize goods in co-operation with Victoria Police and the Australian Federal Police.
6. Mr McGee stated that the situation changed in March 2004 when an experienced officer assigned to act as his mentor was arrested and charged with offences related to allegedly selling seized tobacco for personal profit and for possession of marijuana. Mr McGee explained that he was distressed at the arrest, as he had no idea that his experienced colleague was involved in any unlawful activity. The first action considered by the respondent to be administrative action occurred following the arrest by way of an investigation by the Fraud Prevention and Control Unit of the ATO of the circumstances of the arrest and the activities of the SNC (the drug matter). Mr McGee made a written statement admitting that he had signed a document as a witness confirming that seized goods had been destroyed (the destruction notice), as requested by his mentor, when in fact he had not witnessed the destruction. Mr McGee said that the investigation included an interview on 27 May 2004 between himself and fraud investigators Mr D Mitchell and Mr T Davies, and that he had felt harassed and bullied by the investigators and that the process had caused him distress and anxiety.
7. The second action considered by the respondent to be administrative action occurred in 2007 by way of an investigation by the ATO into a complaint by a colleague, Ms L McKaskill, to a solicitor working for the Commonwealth Director of Public Prosecutions (DPP) about the actions of Mr McGee’s team in executing a warrant during an operation in Pakenham, Victoria, in December 2006 (the warrant matter). Ms McKaskill had alleged that officers in the team (but not Mr McGee) had manipulated evidence by moving a bag from the place it was discovered to a location inside the premises under investigation in order to implicate the alleged offender. Mr McGee said that he and his colleagues were most upset that Ms McKaskill had gone outside normal channels by complaining in the first instance to a person not within the ATO. He explained that no-one else in the team had considered that there was any substance to the allegations, and he felt betrayed by Ms McKaskill’s lack of courtesy and professionalism, particularly as previously he had a good working relationship with her.
8. Mr McGee said that the investigation of the warrant matter by management, including a report by Mr P Tregillis, a senior officer, caused him significant distress and brought back memories of the drug matter. He stated that Mr I Rogers, Regional Manager of SNC, held a team meeting on 10 August 2007 but Mr McGee left the meeting because he and others were dissatisfied with the way the matter was handled by management, and later he complained through ATO channels.
9. The third action considered by the respondent to be administrative action occurred when Mr Rogers called a meeting of the SNC team at Dandenong on 30 October 2007 at which he proposed a transfer of the team to Casselden Place in Melbourne CBD (the transfer matter), which would require Mr McGee to work under the supervision of officers involved in the investigation of the drug matter and to be located near Ms McKaskill. This was unacceptable to him and he lodged an official complaint. He said that on 1 November 2007 Mr P Zdjelar, a senior officer of SNC, informed the team by email that no decision on a possible re-location had been made by the SNC Executive and that the Executive had not considered any business proposals to do so, but Mr McGee said that he had lost trust in management’s assurances.
10. In Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 Doyle CJ stated at 247:
[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties…
11. In Re Lynch and Comcare [2010] AATA 38 Senior Member Professor Creyke stated at [97]:
What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples. The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’ These indications imply that ‘administrative action’ is capable of having a broad meaning.
Senior Member Professor Creyke concluded that administrative action must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer.
12. In the circumstances of the application under review, the Tribunal concludes that the drug matter involved a particular investigation by the ATO following allegations of corruption within the SNC. Similarly the warrant matter involved a specific inquiry into issues raised by a member of the SNC team. The transfer matter involved an event concerning possible re-location of the SNC team to the city office. The Tribunal finds that each of these matters was an action by management which involved ATO staff, and that each constitutes administrative action for the purposes of the SRC Act.
WAS THE ADMINISTRATIVE ACTION REASONABLE?
13. Mr McGee told the Tribunal that the administrative action in relation to the three matters was unreasonable. In respect of the drug matter, he said that an investigation was warranted, but not the type of interview that was conducted. He said that he was told that his action in signing the destruction notice without witnessing the destruction had been a breach of ATO protocols but that no further action would be taken against him. However Mr McGee said that this did not alleviate his concerns that he had been the target of Mr Mitchell’s investigation, rather than a witness against his mentor.
14. In a statement dated 24 December 2009 Mr Mitchell said that in March 2004, following the arrest of Mr McGee’s mentor and other officers, he was authorised to conduct an investigation into alleged corruption within the SNC, including a review of the policies, practices and management of the SNC. He stated that as part of the investigation he approached Mr McGee as a witness regarding the activities of his mentor. Mr Mitchell also referred to the admission by Mr McGee that he signed the destruction notice without witnessing the destruction of the goods.
15. The Tribunal accepts that the arrest of Mr McGee’s mentor and allegations of possible corruption within the SNC justified an investigation by Fraud Investigation and Control officers within the ATO. Consequently the Tribunal finds that the administrative action involving the drug matter was reasonable.
16. In respect of the warrant matter, Mr McGee said that, although the allegations by Ms McKaskill were found to be false, the investigation into the allegations was unreasonable because management should have supported him and the team, rather than scrutinising him unnecessarily, particularly as the team had followed correct procedures during the execution of the warrant. He agreed that he had no concerns about his discussion with Mr Tregillis during the investigation.
17. In a statement dated 21 January 2010 Mr Tregillis said that in October 2007 he was requested to carry out an independent investigation of concerns raised by SNC staff about the issue of a warrant in December 2006. He said that he reviewed documentation and met with relevant SNC and DPP officers, including a meeting with Mr McGee on 11 October 2007, and he sent Mr McGee a copy of his record of interview which gave details of the concerns expressed by Mr McGee about questions raised regarding Mr McGee’s integrity and the actions of Ms McKaskill, after which Mr McGee indicated his general agreement with the contents.
18. The Tribunal accepts that the action by the ATO in appointing Mr Tregillis to conduct an independent review into the circumstances of the issue of the warrant, including a meeting with Mr McGee, was appropriate. Consequently the Tribunal finds that the administrative action involving the warrant matter was reasonable.
19. In respect of the transfer matter, Mr McGee said that the administrative action was not reasonable because he received notification on 1 November 2007 that no such re-location was planned, and the way that the matter was handled reinforced to him the inconsistency and lack of concern by senior management, particularly as there was in fact no business proposal that the team be re-located to the city at that time. He said that even a suggestion or proposal to move that was raised at the meeting on 30 October 2007 was not authorised by SNC management, so it was unreasonable.
20. In a statement dated 31 March 2008 Mr Rogers said that at the meeting on 30 October 2007 staff were advised that regional management intended to submit a document to the SNC Executive within about six weeks recommending an amalgamation of the Dandenong and Melbourne offices of the SNC, and that the SNC would make the decision. Mr Rogers stated that during the meeting…Brett said that he believed that it was a ‘fait accompli’… In a statement dated 8 February 2008 Mr A Johnson stated that he was a member of the SNC team at Dandenong and attended the meeting on 30 October 2007. Mr Johnson said that Mr Rogers told the meeting that in consultation with team leaders an SNC Executive Paper would be prepared and presented to the SNC Executive recommending that SNC investigators at Dandenong be re-located to the city. He stated that Mr Rogers emphasised that any team member wishing to stay at Dandenong would be assisted to do so, and that Mr McGee had indicated his interest in remaining at Dandenong.
21. The Tribunal accepts the evidence from Mr Rogers and Mr Johnson that the question of transferring the SNC team to the city was raised as a proposal to be considered by management, and that the meeting held on 30 October 2007 was an appropriate opportunity for team members to discuss the proposal. No decision had been made on that date. The notification by Mr Zdjelar on 1 November 2007 that no decision had been made or had been considered as a business proposal was also appropriate. Consequently the Tribunal finds that the administrative action involving the transfer matter was reasonable.
WAS THE REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
22. Mr McGee told the Tribunal that the administrative action in relation to the three matters was not taken in a reasonable manner. In respect of the drug matter, he said that during the interview on 27 May 2004 he felt sick to the stomach at his treatment, and he felt threatened by the questions and the manner of questioning. He said Mr Mitchell interrogated him and harassed him about his knowledge of his mentor’s activities. Mr McGee stated that over the next few months he felt that he was the real target of the investigation, and although he provided three written statements the questioning continued, including telephone calls from Mr Mitchell.
23. Mr McGee said that he began to feel anxious, less sociable and started to drink alcohol to excess. His work was affected, and he had difficulty sleeping. He stated that on 1 September 2004 during a telephone call with Mr Mitchell he became angry and hung up, although he rang back soon afterwards to apologise to Mr Mitchell. Mr McGee told the Tribunal that he felt bullied, and broke down at home in front of his family. He said that he informed Mr Mitchell on 11 October 2004 that he would no longer speak to investigators about the drug matter, and after reporting the harassment to senior management, the harassment ceased.
24. Under cross-examination Mr McGee agreed that he had not complained to senior management about Mr Mitchell’s actions during the investigation of the drug matter. However he maintained that he was not in a state to think or act clearly as a result of the harassment and threatening treatment by Mr Mitchell, and was not familiar with the processes of the ATO, despite several years’ experience as an investigator with the Health Insurance Commission and the ATO. He was unable to recall many of the events of that period, and said that his psychological condition may have been a contributing factor. He also agreed that during the period 2004 to 2006 he did not mention to any medical practitioner the alleged harassment by Mr Mitchell or any other work-related stressor or issue that might have led to his psychological state. Mr McGee agreed that he had breached ATO protocols by signing the destruction notice and that he had been assured by management that no further action would be taken against him.
25. In a statement dated 24 December 2009 Mr Mitchell described his investigation into allegations of corruption within the SNC in Victoria/Tasmania and an assurance review of work practices. He said that as part of the investigation he approached Mr McGee, who was one of ten witnesses involved with Mr McGee’s mentor. Mr Mitchell stated that Mr McGee admitted to signing the destruction notice on 12 January 2004 without witnessing the destruction of seeds that had been seized by Mr McGee’s mentor, and that a criminal and misconduct investigation of Mr McGee could have been undertaken. However he took the view that Mr McGee had been naïve rather than corrupt, and there was more value in approaching Mr McGee to assist in the investigation of his mentor.
26. Mr Mitchell emphasised that Mr McGee’s involvement in the investigation was as a witness and he was never the subject of any separate criminal or misconduct investigation, and that he explained this to Mr McGee on numerous occasions. He said that initially Mr McGee was co-operative, but despite the assurances, Mr McGee became increasingly reluctant to co-operate and appeared nervous in dealings with him. Mr Mitchell said that Mr McGee had not been forthcoming in his original statement, so further inquiries were necessary. He said that at the meeting on 27 May 2004 he acted in a friendly, relaxed and congenial manner towards Mr McGee. He denied that he was threatening, aggressive or overbearing during the interview or at any other time.
27. Mr Mitchell explained that after the meeting he was aware that Mr McGee felt under pressure as a result of the investigation and that Mr McGee believed that his health was suffering. Mr Mitchell said that Mr McGee was concerned about the investigation because he was aware that he had acted inappropriately by signing the destruction notice. Mr Mitchell said that he was not aware of any complaints by Mr McGee against him or his conduct of the investigation.
28. In a statement dated 22 December 2009 Mr F Camerota, former Regional Director, SNC, said that, following the arrest of Mr McGee’s mentor, senior management of the ATO decided to conduct an investigation of the Melbourne Excise investigation team, in particular the circumstances of alleged misconduct by Mr McGee’s mentor, and a probity review. Mr Camerota stated that he did not consider this approach by the ATO to be unusual in the circumstances. He said further that he explained to Mr McGee that ATO protocols had been breached by the failure to witness the destruction of seized goods despite having signed the destruction notice, but the matter would not be taken further. Mr Camerota explained that he was not aware of any complaints made by Mr McGee about the conduct of the investigation or the actions of the investigators. He emphasised that during the investigation process Mr McGee and other staff members were provided with general support and access to confidential counselling. Meetings were held throughout the process to keep staff informed of progress.
29. In Re von Stieglitz and Comcare [2010] AATA 263 Senior Member Professor Creyke observed at [67]:
Whatever administrative action is to be taken must be ‘reasonable’. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’.
30. In Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 the Full Federal Court held at [79]:
There are elements of rationality and proportionality in the relevant definitions of reasonably...The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court…
31. The Tribunal takes into account that Mr Mitchell is an experienced investigator whose evidence to the Tribunal was given in a frank and candid manner. The Tribunal also considers as significant Mr McGee’s concession that at no time did he complain about the conduct of the investigation or the interview, as he had demonstrated a readiness to raise his concerns about various aspects of the activities of the SNC such as re-location proposals and the conduct of other officers. He did not complain to his general practitioner about any alleged bullying or harassment. In all the circumstances the Tribunal prefers the evidence of Mr Mitchell and Mr Camerota to that of Mr McGee, and finds that the administrative action in respect of the drug matter was taken in a reasonable manner.
32. In respect of the warrant matter Mr McGee said that, although the investigation cleared the team of any wrongdoing, he felt let down by management during the process, and was critical of a lack of support for the team and the way the matter was handled. He referred to the meeting on 10 August 2007 and said that he and two others left because they were upset when Mr Rogers would not answer questions about Ms McKaskill’s actions. He said that this caused him to complain through the ATO’s internal complaint system. He said that Ms McKaskill had been promoted despite her actions. Under cross-examination he agreed that he had no problems dealing with Mr Tregillis, although he was disappointed with the outcome of the investigation because the report did not produce the results that he had wanted.
33. In a statement dated 21 January 2010 Mr Tregillis said that in 2007 he was requested to make an informal investigation of a complaint made by seven officers from SNC about the warrant matter through the ATO internal complaints mechanism. He stated that he interviewed Mr McGee on 11 October 2007 and forwarded his record of the interview to Mr McGee, who agreed with the contents apart from one minor amendment. During the interview Mr McGee raised concerns that Ms McKaskill had complained through non-ATO channels about aspects of the execution of the warrant, and that she had not alerted Mr McGee of her intention to do so. He said that Mr McGee had felt that his integrity had been questioned in the letter from the DPP following Ms McKaskill’s complaint, and had believed that the staff involved in the execution of the warrant had not been given an opportunity to respond at the time.
34. Mr Tregillis said that he had no further contact with Mr McGee and completed his report on 10 January 2008. He stated that he did not receive any feedback from Mr McGee about the report, and was not aware of any complaint by Mr McGee about the process by which he was interviewed or the findings in the report.
35. In his statement dated 31 March 2008 Mr Rogers explained that there was never any suggestion that criticism should be directed at Mr McGee. He said that, contrary to the assertions by Mr McGee, SNC staff had been advised on several occasions that Ms McKaskill had been dealt with as part of an approved ATO process and was not rewarded for her conduct, but that details could not be made public because of privacy issues.
36. The Tribunal takes into account that Mr McGee did not have any complaints about the way Mr Tregillis conducted the investigation, which constituted the major aspect of the review of the warrant matter. The Tribunal accepts Mr Tregillis’ evidence about the process involved in his investigation, including his interview with Mr McGee, and finds that the investigation was conducted appropriately. The Tribunal acknowledges that Mr McGee was unhappy with the outcome, but accepts Mr Rogers’ evidence that he kept the SNC team members informed of the investigation, and that at the meeting on 10 August 2007 he explained that Ms McKaskill had been dealt with in accordance with the correct ATO processes. For these reasons the Tribunal finds that the administrative action in respect of the warrant matter was taken in a reasonable manner.
37. In respect of the transfer matter Mr McGee said that the actions of the ATO in holding a meeting on 30 October 2007 announcing a transfer to the city, which was highly stressful to him, then rescinding the decision via an email dated 1 November 2007, demonstrated the inconsistency and lack of concern by SNC management.
38. The Tribunal has already accepted the evidence from Mr Rogers and Mr Johnson that the question of transferring the SNC team to the city was raised as a proposal only, and is satisfied that the meeting itself was a reasonable and appropriate way of discussing an important issue with team members. Similarly, in view of the concerns raised by Mr McGee and others at the meeting about the impact of a transfer, the Tribunal is satisfied that the email dated 1 November 2007 from Mr Zdjelar was a prompt and appropriate way of allaying the concerns. The Tribunal does not accept that these actions demonstrated a lack of understanding or support by management. For these reasons the Tribunal finds that the administrative action in respect of the transfer matter was taken in a reasonable manner.
WAS THE ADMINISTRATIVE ACTION TAKEN IN RESPECT OF MR MCGEE’S EMPLOYMENT?
39. Mr McGee told the Tribunal that the administrative action in relation to the three matters was not taken in respect of his employment, but in fact was directed to other officers of the SNC. In respect of the drug matter he said that he was never the object of the investigation carried out by Mr Mitchell in 2004, and the investigation into possible criminality and misconduct was directed only at his mentor. In respect of the warrant matter he stated that any administrative action involved the transfer of Ms McKaskill following her unsubstantiated allegations against members of the SNC team. In respect of the transfer matter he stated that any administrative action involved Ms McKaskill, as she was located in the city office, and any transfer would mean that he would be required to work near her.
40. In respect of the drug matter the Tribunal concludes that, although Mr McGee was not a suspect in the alleged criminal activities of his mentor or other SNC officers, the investigation by Mr Mitchell included aspects of Mr McGee’s employment, particularly his action in signing the destruction notice. In respect of the warrant matter the Tribunal takes into account that the investigation concerned allegations about action by Ms McKaskill. However Mr McGee was part of the SNC team involved in execution of the warrant and he raised concerns about the handling of the matter. He was interviewed by Mr Tregillis as part of the investigation. In respect of the transfer matter the Tribunal takes into account that Mr McGee was present at the meeting conducted by Mr Rogers and voiced his opinion in relation to the possible re-location to the city office because it directly concerned him. The email from Mr Zdjelar included Mr McGee as a recipient. For these reasons the Tribunal finds that the administrative action in the three matters was taken in respect of Mr McGee’s employment.
WAS THE AILMENT SUFFERED AS A RESULT OF THE ADMINISTRATIVE ACTION SO AS TO EXCLUDE MR MCGEE FROM RECEIVING COMPENSATION?
41. Mr McGee told the Tribunal that there was no causal relationship between his work-related depressive condition and the alleged administrative action in relation to the three matters. He said that the cause of his ailment was the sequence of events surrounding his shock that Ms McKaskill, a colleague, would allege wrongdoing by him or part of his team as a whole to an external organisation without consulting him or other team members. Other relevant events included a repetition of suspicion and doubt as to his integrity as an investigator, plus a sense that management did not support team members.
42. In relation to the warrant incident, Mr McGee said that he experienced mood fluctuations, he became anxious and his work was affected adversely. His alcohol consumption began to increase once more. Under cross-examination Mr McGee agreed that no-one had accused him of any wrongdoing at any stage of the investigation, but he maintained that the lack of information concerning his complaint and the length of time taken to resolve the issues had a detrimental effect on his health, and he feared an investigation similar to the drug matter several years earlier and old feelings would be stirred up again. He said he was concerned that Ms McKaskill would be rewarded for her actions.
43. In respect of the transfer matter Mr McGee said that the meeting on 30 October 2007 upset him because of the possibility that he might have to work near Ms McKaskill, and he also had personal issues requiring him to remain at Dandenong. The email dated 1 November 2007 from Mr Zdjelar only reinforced to him the lack of concern by management. He said that he was already suffering from depressive symptoms, and the following weekend he broke down at home and on 7 November 2007 he sought medical advice and was prescribed anti-depressant medication. He began treatment by a psychologist and was unable to continue at work. He said that he remained off work until a graduated return to work program in September 2008, and has now resumed full-time duty. He said that his depressive condition is under control and he continues to take prescribed medication. Under cross-examination Mr McGee agreed that in his claim for compensation he stated as the cause of his injury or illness: Various issues occurred to cause my mental illness, all through work. I have highlighted these to Dr Rumble.
44. In a report dated 5 March 2008 Dr G Rumble said that he has been Mr McGee’s general practitioner for a number of years. He stated that he first treated Mr McGee for his current medical condition on 7 November 2007, and that Mr McGee had attributed his work-related stress to three sets of circumstances: anxiety over an ongoing matter involving a former mentor during which Mr McGee was grilled and interrogated in 2004; inadequate response by management to unsubstantiated allegations about the execution of a warrant in 2006; and a possible re-location of his workplace to the city, which would be unacceptable because it would place him with management personnel who had treated him unfairly.
45. In a report dated 26 March 2008 Dr L Lim, consultant psychiatrist, stated that Mr McGee suffers from a major depressive disorder which commenced in 2005 following a work-related situation where Mr McGee felt interrogated and harassed for unsubstantiated allegations against him. She said that the symptoms diminished in late 2005 but were exacerbated in mid-2007 in relation to another work-related incident where he again felt that unfair allegations were being made against him and that senior management had not provided adequate support. In oral evidence Dr Lim stated that the three matters referred to by Dr Rumble were actions that resulted in the depressive condition being suffered or aggravated.
46. In a report dated 1 July 2009 Dr M Epstein, consultant psychiatrist, stated that Mr McGee felt harassed, threatened, bullied and unfairly treated during the investigation of the drug matter, which made him feel trapped, hopeless, irritable and frustrated, with a lowered mood and was often tearful. Dr Epstein referred to the warrant matter, and said that despite an apparent exoneration of himself and other SNC team members, he felt that management regarded them with suspicion, causing him distress, mood swings, increased alcohol consumption and social withdrawal. In respect of the transfer matter Dr Epstein noted that the possible re-location would place Mr McGee under the supervision of management who had wrongly accused him in the past, and led to a breakdown and the subsequent treatment by Dr Rumble.
47. In a report dated 22 February 2008 Mr J Jakupi, psychologist, stated that he has been treating Mr McGee since 9 January 2008 for an adjustment disorder with anxiety and depression, apparently related to a number of incidents that occurred at his workplace. Mr Jakupi said that Mr McGee became anxious at work when his mentor was arrested, and that Mr McGee perceived guilt by association from other staff, which appeared to occur when he was harassed by a member of the fraud investigation team over six months until he reported the harassment to senior management.
48. Mr Jakupi referred to the warrant matter and said that Mr McGee reported a return of feelings similar to those experienced during the drug matter, and that Mr McGee felt sickened by the unjust accusations made by Ms McKaskill and that she had taken the complaint outside the ATO in the first instance. Further, Mr McGee had believed that the team had not been given an adequate opportunity to reply to the allegations.
49. The Tribunal accepts the evidence from Dr Rumble and Dr Epstein about the history given to them in connection with Mr McGee’s depressive condition. This evidence is consistent with the evidence from Dr Lim and Mr Jakupi and statements made by Mr McGee in his claim for compensation that the three matters led to his psychological condition. The Tribunal finds that the drug matter, the warrant matter and the transfer matter caused the depressive condition suffered by Mr McGee.
CONCLUSION
50. In view of its findings the Tribunal is satisfied that the condition suffered by Mr McGee resulted from reasonable administrative action taken in a reasonable manner in respect of his employment, so it does not come within the definition of injury in the SRC Act. Although there may be other matters that contributed to the condition, no compensation is payable (Hart v Comcare (2005) 145 FCR 29).
DECISION
51. The Tribunal affirms the decision under review.
I certify that the fifty-one [51] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
……………………………[signed]……………………………
Associate Grace Horzitski
Dates of hearing: 15, 16, 17 and 18 March 2010, 17 May 2010
Date of decision: 24 May 2010
Counsel for the applicant: Mr M. Carey
Solicitor for the applicant: Maurice Blackburn Lawyers
Counsel for the respondent: Mr J. Wallace
Solicitor for the respondent: Thomson Playford Cutlers
2
5
0