Burke and Comcare - [2001] AATA 984

DECISION AND REASONS FOR DECISION [2001] AATA 984

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/73 and V2001/1204
GENERAL ADMINISTRATIVE DIVISION
  Re:         PETER BURKE
  Applicant

COMCARE
Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             2 November 2001
Place:            Melbourne

Decision:For the reasons given orally at the hearing the decision under review are set aside and in substitution Tribunal decides that the respondent is liable, under section 14(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act), to pay compensation to the applicant in respect of depressive disorder, and pursuant to section 67(8) of the Act the Tribunal orders that the applicant's costs are to be paid by the respondent.

(sgd) M. J. Carstairs
Member

COMPENSATION – depressive disorder – whether incapacity the result of failure to obtain a promotion, transfer or benefit
Safety Rehabilitation and Compensation Act 1988 ss 4,and 14.
Comcare v Mooi 1996 137 ALR
Commissioner for Safety and Rehabilitation for Commonwealth Employees v Chenhall 1992 109 ALR 361
Trewin v Comcare [1998] 713 FCA

REASONS FOR DECISION

2 November 2001 M.J. Carstairs, Member

This is the hearing of two applications by Peter Burke (the applicant) for review of decisions made by Comcare (the respondent). The decisions are those made by Comcare on 11 January 2001 and subsequently varied by a decision on 4 September 2001, that the applicant was not entitled to compensation in respect of major depression and migraines
At the hearing the applicant was represented by Mr M Walsh of Counsel and the respondent was represented that Mr E. Dezilwa of Counsel.
The Tribunal had before it six exhibits on behalf of the applicant (marked A1 to A6) and two exhibits on behalf of the respondent (marked R1 and R2) in addition to the documentation prepared under s37 of the Administrative Appeals Tribunal .Act (1975)
BACKGROUND
The applicant is a married man aged 56 years. He is legally qualified and practised as a solicitor prior to the joining the Family Court in 1984 as Deputy Registrar. Immediately before joining the Family Court he was a partner in the firm of McNab and McNab. Since joining the Court He has worked at its Melbourne Registry.
In late 1998 and early 1999 the Family Court announced a restructure of the positions of Deputy Registrar throughout the Court. This followed an earlier restructure in relation to Registrars. Action was taken (unsuccessfully) by the Community and Public Sector Union (CPSU) in the Federal Court early in 1999 to oppose the proposed restructure of the Deputy Registrar positions. Interviews as part of the restructuring process were conducted at or about August in Melbourne.
While travelling to work on 10 August 1999, the applicant suffered a neurological event in which he lost vision. This was subsequently diagnosed as retinal ischaemia.
The applicant had some leave after this incident, returning on a graduated return-to-work program on 2 September 1999, followed by the resumption of full-time duties on 8 October 1999. His own interview for the restructured position of Deputy Registrar, initially set down for 18 August 1999, was delayed. That interview ultimately took place on 19 April 2000, the day before he took a period of extended leave, which had been planned towards the end of 1999. He was to return to work in July 2000. However on 6 July 2000 he was advised that he had not been successful in winning the position. The applicant has not returned to work since being so advised.
A claim for compensation was lodged, signed by the applicant on 18 April 2000. The applicant sought compensation for "work stress induced migraine attack with resultant unconsciousness, left eye injury and cognitive dysfunction, anxiety and depression". A decision rejecting his claim was made on 23 October 2000. Essentially the rejection was on the basis of the exclusionary provisions of the Safety Rehabilitation and Compensation Act 1988 (the Act), which exclude liability where a disease or injury has resulted from an employee failing to obtain a promotion, transfer or benefit in connection with employment.
The decision was affirmed on review on 11 January 2001 and the applicant sought review with the Tribunal on 23 January 2001. On 4 September 2001, a further decision was made which accepted retinal ischaemia and in doing so amended the determination of 23 October in that liability was accepted for the period 10 August 1999 to 8 October 1999. A second application to the Tribunal was then lodged on 18 September 2001.
EVIDENCE
The applicant told the Tribunal that during the time of his employment with the Family Court it had undergone several restructures. His evidence related particularly to restructures in 1993 and 1997. He said that his work has changed greatly in the period that he had been with the Court. In 1984 he said the work he did was mainly Order 22 conciliation conferences, conciliations on financial matters, and taxation of costs. By the late 1980s, some of the Deputy Registrars were authorised to do dissolutions and he was amongst them. This court work for Deputy Registrars continued after a restructure undertaken in 1993 when the position of Registrar was made a Senior Executive Service (SES) position. He said that i the restructure was intended to permit Registrars to do the court work, such as dissolutions. However, there were insufficient SES appointments made, so Deputy Registrars continued to do such court work.
In the mid-1990s the Court also commenced a duty counter. A large variety of matters had to be dealt with on the duty counter. These matters were frequently of an urgent nature and involved unrepresented people. Additionally, there was a roster for an after-hours service. It was shared amongst the Deputy Registrars. Those on roster were required to carry a "beeper" and a mobile telephone and to be on call at any time. The applicant gave evidence about many difficult clients that he had to deal with. He referred to one particularly distressing incident, during one Christmas period, when he was rostered on the after-hour's service. On that occasion the client carried on a barrage of telephone harassment of such concern that it required the intervention of the Marshall of the Family Court and its Chief Executive Officer. After that incident the applicant said he opted out of the after- hours roster until the end of 1999, or early 2000, when staff shortages led him to take his place on the roster again.
The applicant gave evidence that before 1990, Deputy Registrars did not conduct pre-hearing conferences, as that was done in call-overs. From 1992, Deputy Registrars were doing an increased amount of work including Order 24 conferences, pre-hearing conferences, manning the duty counter as well as court work, taxing of costs, Orders on the Papers and other duties.
The applicant said that during 1999 he found he was working longer hours and rarely left work before 6.30pm. His evidence was that there was increasing responsibility for assisting those who were temporary appointees in Deputy Registrar positions. As he had lengthy experience with the Family Court, he took on this responsibility. He said that other Registrars and, on occasions, judges would seek him out for his technical expertise, which he was always willing to give.
He also gave evidence that the Deputy Registrars' work cohesively as a team, and each supported the others as much as he or she could. In cross-examination he acknowledged that, whilst it was not a requirement of the job to assist with the training of temporary Deputy Registrars, he regarded it as his responsibility because of the team approach that applied to the role.
The applicant also gave evidence that some of the Court's more difficult clients were transferred to him, particularly if there was a security risk. His evidence was that clients who presented a security risk could particularly target female Deputy Registrars. In the Family Court at Melbourne the Deputy Registrars were predominantly female. After 1998 the applicant was the only male Deputy Registrar. He gave evidence of one difficult client who was transferred to him from the Dandenong Registry. The applicant acknowledged in cross-examination that it may have been open to him to refuse to accept these difficult referrals, but he said that it would have been unfair to his colleagues.
Other matters that he referred to as making work more stressful were a move of premises in 1997 and the changeover to computers. He said that when he commenced employment with the Family Court, there was one secretary for two Deputy Registrars. By 1998 there was one assistant between three Deputy Registrars. After the introduction of computers all Deputy Registrars were required to do their own typing and e-mailing. He said that limited training was providied. It was often given long after the need for it arose. The applicant said that in all the changes he was finding himself in trouble especially due to the lack of assistance. He said that the thrust of the changes in the Court in the 1990s meant that there was more "in-person" work and "in-person" cases simply took more time. He said that he thought that management never knew the correct number of Deputy Registrars that were needed in Melbourne and the thrust of his evidence was that there were not enough Deputy Registrars to cope with the workload as it increased.
In early 1999 the Family Court had announced the restructuring of the Deputy Registrars' positions. As set out above, this was opposed by those affected and injunctive action was taken in the Federal Court by their union. The applicant was not a signatory to the joint action. He subsequently felt pressured, particularly by interstate Deputy Registrars, for not joining in the action.
His evidence about 1999 was that the year was busy and stressful for him especially as the number of Deputy Registrars was reduced due to the illness of one of them. This person needed to take substantial leave after a diagnosis of cancer. He said that the work of that Deputy Registrar then had to be shared among those remaining. He also said that there was more court work and he had the biggest circuit portfolio for Albury. He said that all the Deputy Registrars were under the additional stress of knowing that they would be interviewed for their newly redefined jobs.
The applicant was originally scheduled to have his interview for the position on 16 August 1999. However on 10 August he suffered an injury on his way to work. After a period of recovery the applicant returned to work on a graduated return to work program and resumed full-time work on 8 October. He presented a conference paper on costs at a Sydney conference for the newly appointed Deputy Registrars, who had been successful in the interviews conducted in the intervening period. Towards the end of 1999 he planned to take extended leave of three months, commencing in April 2000.
After several changes to the dates for his own interview for the position of Deputy Registrar, he was interviewed on 19 April 2000, the day before he commenced leave. The applicant told the Tribunal that the interview process was unsettling. He said the interview was unusual as two members of the interviewing panel were connected on video-link, two members were participating by telephone and two members were present in the room with him.
He was notified of his failure to win the position of Deputy Registrar on the Thursday before he was due to return to work in July. He has not returned to work since.
The applicant also gave evidence that from the early 1990s he had suffered headaches and an inability to sleep. He said that his trouble with sleeping had been ongoing for years. As to his present circumstances, the applicant said that he had trouble with side-effects from anti-depressant medications and has avoided taking these. He said he still gets headaches and has a feeling of incompetence and worthlessness. He find he is unable to do things that he used to do easily – even writing letters presents difficulty. He said he gets upset very readily.
He said that Mr Little, his psychologist, has encouraged him to do more physical work and he has returned to playing hockey. He finds he can submerge himself more readily in physical work even though it takes him longer than it should. The applicant said that he has not been in receipt of any payment from his employer since the middle of 2001. He has used his personal leave credits and is presently on leave without pay.
The applicant's wife gave evidence that supported the applicant's evidence about the incidents of headaches and sleep problems dating from the early 1990s. She had prepared a statement (Exhibit A3) in which she set out that the applicant was stressed by his work, was taking more work home, had become socially more isolated and emotionally distant from his family. She said that she had taken over responsibility for running the household as the applicant was so physically tired that he was unable to cope with domestic issues. His sleep pattern was disturbed and he suffered from nightmares. She said that her husband would go to bed as late as possible and read when he woke at night. He would be just falling asleep when the alarm would go off in the morning.
She said that he had no problems with his colleagues and that he loved his job and was proud of it. She said that she had observed a constant descent in her husband's health as he became more and more worn out by his work. She recalled the first incidence of headaches being in the early to mid '90s. She said then that he would take Disprin or go to bed. She said that he told her that there was more and more work in the Court and less time being allowed to do it. Her statement set out that the pattern of poor sleep and nightmares about work increased in the course of 1999. She said, in cross-examination, that she did not consider that the applicant applying for his job in 1999 had nothing to do with his emotional state or lack of ability to cope In her view it was one more thing that had to be dealt with.
Athina Sikiotis gave oral evidence at the hearing. She had been a Deputy Registrar at the Dandenong Registry for 14 years and had known the applicant for some 20 years. Her evidence confirmed that of the applicant, that in the early days of their respective appointments, that is during the 1980s, there was more support given to Deputy Registrars. She said that in the Dandenong Registry there was more administrative support, even during the 1990s, than there was in the Melbourne Registry. She gave evidence that after the introduction of computers in the Family Court, administrative support for Deputy Registrars was reduced.
She also confirmed the applicant's evidence that there was little training given in computers. She said that she had better training in the Dandenong Registry, than the applicant had available to him in the Melbourne Registry, as she had access to IT support in Dandenong. Ms Sikiotis's evidence confirmed the increases in workloads through the period that they were each employed. She said that during the 1980s the Deputy Registrar's job was a nine-to-five one. In the 1990s she said she found she needed to be there every day by 7.30 am and would not leave before 6 pm.
She said that the Deputy Registrars as a group were very team-oriented and looked to support each other. She said that the duty counter, in particular, was a difficult job, both for its content and for the stresses that it put upon time management. She said that especially difficult were the self-represented clients as they took more time and they were more difficult personally to deal with. She said that practitioners also could adopt intimidatory tactics. She said that it was frequently a pattern when on duty counter that the Deputy Registrar would miss lunch. She said the number of clients dealt with on different days was very variable and it was very difficult to anticipate the workload.
She also gave evidence that confirmed the applicant's evidence about Dandenong clients who were transferred to Melbourne and she said that the applicant tended to inherit difficult clients. She said this was especially so if security issues suggested that someone heavier and preferably male was needed. She also confirmed that she had had threats made to her in her position as Deputy Registrar and was aware of the weekend harassment incident that the applicant had endured. She said that that incident was the worst incident of harassment that had arisen.
She also said that at the time that incident had occurred time-in-lieu was not given for work done out-of-hours, though time-in-lieu was adopted subsequently. She said that she was aware of the interview process for the applicant as he had spoken to her after the interview in April 2000. She acknowledged that it may have been difficult for the Family Court to reconstitute the panel as the panel involved members from other States. She said that she had had discussions with the applicant after the interview and that he had expressed his disappointment both at the process and at his own performance in the interview.
Ms Sikiotis said that the applicant had a high reputation in the Court and that he was used as a reference point for others as he was known for his technical expertise. She said that he, like other Deputy Registrars, had an open door policy when help was being sought. She said that he was consulted by members of the judiciary because of the high regard in which he was held and that few Deputy Registrars were held in that regard. She had attended the conference in November 1999 where the applicant had given his paper.
She recalled him discussing with her his concerns about the loss of expertise as a result of the selection processes. Some of those who had won jobs previously had been in temporary positions in the Court and his view was that they still needed a lot of help. She also said that at the November conference the loss of his eyesight was still preying on the applicant's mind along with the prospect of his own interview for the job. She said that in their discussions he said he was having difficulty with the workload and was finding it harder to work than he had in the past. At that time, she said, he was still under medication and was still going to doctors in regard to the eye problem.
In cross-examination she said it was her view that from July to November 1999 the applicant was concerned with his eye condition but after November and early into 2000 his real concern was with the workload.
Anna Boymal also gave oral evidence. She was a Deputy Registrar in the Melbourne Registry and during 1999 was the Manager (Legal) for the Deputy Registrars. She did not succeed in retaining her position after the restructure. Her evidence supported the other evidence given about increases in workload. She said that the Deputy Registrars simply had to absorb increases in workload.
Her evidence was that they were told some time before Christmas 1998 or early 1999 about the restructure and that it was a period of seven to eight months before the interviews were conducted. Her evidence supported Ms Sikiotis' evidence that the Deputy Registrars were a close-knit group. She said it was necessary for Deputy Registrars simply to keep the work moving along within terms of the practice directions and case management guidelines because there would be problems three months down the track if the work wasn't ready for the Judges because the Deputy Registrars had not conducted their end of it.
She confirmed the earlier evidence that the work was to be done with reduced administrative assistance. She also confirmed in her evidence what the applicant had said, that the change of premises had created its own problems and that from early 1999 and through that year they were one Deputy Registrar short and that the temporary replacements had to be trained by other Deputy Registrars. She said in her evidence that all the Deputy Registrars found it remarkable that they had to apply for their own jobs.

She said that the applicant was a good technician in terms of Family Law, but he was also a very good "people person". She said that he would take time with conferences with parties, and that applicants felt that they really had a conference when it had been conducted by him. She said that the applicant had a real rapport with the judges, and that they frequently consulted him. She confirmed in her evidence that the applicant was very good at dealing with hostile male and female litigants.
Mr G. Little (psychologist) prepared a report dated 1 August 2001. He said that the applicant was referred to him, and that he had treated him since 5 March 2001, and was doing so currently. His report summarises that the applicant gave him a history of increasing workload and increasingly stressful work dealing with angry and abusive clients. He said he had given a description of pressures on him with the restructuring of the court, and lack of cohesion and staff.
He said the history was of a gradual build-up of stress and tension over some years, resulting in the incident when the applicant lost his vision when travelling to work in August 1999. Mr Little assessed the applicant as having a moderate to severe depression as the result of work related stress due to circumstances in the workplace. His report states that the applicant's condition was not the result of one event, but of a slow deterioration over more recent years in his employment in the Family Court.
In his evidence at the hearing, Mr Little said that he knew from the details given to him by Dr Broad, that the applicant had had headaches over a number of years. Dr Broad had told him that the applicant had been treated with antidepressants from November 1999. Mr Little said that he was now not optimistic about the applicant's future in the workplace.
Dr Andrew Broad, the applicant's general practitioner, gave evidence that he had treated the applicant since 1995, but he had access to earlier records as the applicant had been with the medical practice since February 1992.
Dr Broad recounted that there were two earlier incidents for attendance with stress with Dr Reynolds, who had treated the applicant before Dr Broad did. He noted that there were entries in the medical records for 23 August 1996 for headaches, and at 1 June 1999. At the time of the incident in regard to the applicant's eye in August 1999, there was an entry on 26 August 1999 where the applicant advised by phone that he had suffered a day-long headache, again with loss of vision.
Dr Broad's evidence was that the applicant had been reluctant to talk about work issues. He said that the applicant is difficult to engage, and to extract a history from. He said that in his opinion the applicant has been having difficulty since 1994. He said that the applicant internalises things, and that he was a reluctant patient who avoids medication. He said that in the initial stages after the eye incident in August 1999 the applicant was certainly reluctant to talk about work, and Dr Broad suggested anti-depressants to the applicant in October 1999. The thrust of Dr Broad's evidence was that he now realised the contribution of the workplace stresses to the applicant's condition. He said it was typical of the applicant that he would return to work in October 1999 after suffering the injury in August 1999, despite Dr Broad's advices to the contrary. He said that he saw the applicant on 18 November 1999; he was suffering headaches, and he observed him and recorded him as being "teary". The applicant expressed the view that, if he went part-time, "They will get rid of me".
At the November appointment he suggested anti-depressants again to the applicant. He told him he would "think about it". He said that the applicant told him he was planning leave after April 2000. When Dr Broad saw the applicant on his return, he said that he was almost on the verge of a nervous breakdown. He said he saw his July 2000 presentation to him as an acute exacerbation, but said that the applicant's state of health from August 1999 was such as to warrant anti-depressants, even though Dr Broad said he is generally reluctant to use anti-depressants clinically.
He considered that a diagnosis of depression in the applicant could be given as "highly likely" from 1994, based on his practice notes and the course of the applicant's medical history has taken since then. He said that it is his view that the applicant's depression is due to work stress, and Dr Broad said that he would advise against any work for the applicant at present. Also in evidence before the Tribunal were reports of Dr Walton, 29 May 2001, and Dr Strauss, 17 July 2000, (T9) who noted that the applicant had not had any psychological or psychiatric treatment before the event in the middle of 1999, and he gave the opinion that there was a significant increase in the applicant's workload over recent years that had contributed to his depression.
Dr Epstein reported on 19 October 2000 (T16) that the applicant had developed a major depressive disorder with features of anxiety. He said it was present in early 1999 and improved in the period he was off work in August and September 1999 and when off work after April 2000.
CONSIDERATION OF ISSUES
The relevant provisions of the Act are at sections 14 and 4 which provide
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
4. injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The respondent did not deny that the applicant is suffering depression but denied liability on the grounds that his depression falls within the exclusionary provisions within section 4 of the Act.
It is clear that there is agreement on diagnosis in the medical evidence before the Tribunal. Dr Strauss in his report dated 4 May 2001 diagnosed "depressive disorder" and went on to state that there is substantial unanimity of opinion on diagnosis. The Tribunal accepts the diagnosis of depressive disorder. The respondent submitted that whilst it can be acknowledged that the applicant worked in a difficult environment his work history shows that he usually has been able to overcome those difficulties and continue working. This was so, Mr Dezilwa submitted, until the point where the applicant heard of his non-selection after the interview.
Mr Dezilwa submitted that the overall evidence should be interpreted on the basis that, despite the constant change, prospects of restructure, and the applicant's earlier failure to succeed in winning a Registrar's positions, the applicant has managed in the workplace. Mr Dezilwa submitted that Trewin v Comcare [1998] 713 FCA assists in understanding that the concept of "failure to obtain a benefit" is to be understood in the context of Commonwealth employment. He submitted that policy considerations have led to excluding from the definition of "injury", stress arising from disappointment in Commonwealth careers.
Mr Dezilwa submitted that on the evidence of Dr Walton, who makes reference to the failure to win the position as being 'the straw that broke the camel's back," (T9 p 27); on the evidence from Dr Epstein's report that "the bottom dropped out" for the applicant after he was notified that he had not secured the job, (T16 p 53), and Dr Walton's report, (R2 p2) that after receiving the news he was quite overwhelmed and "had been a mess ever since", the injury in the applicant's case arises only after the announcement of the failure to obtain the benefit and is therefore excluded under the Act.
Mr Walsh submitted that the injury identifiably occurred at an earlier time. He submitted that the evidence of Dr Broad showed that Dr Heath had, in 1994, diagnosed the applicant as suffering from mild depression. He submitted that the clinical notes from Dr Broad's practice showed in 1997 and 1998 a pattern of fatigue and headaches (Exhibit A6). He submitted that Dr Broad's evidence should be preferred. Dr Broad found the applicant difficult to draw out and engage but in Dr Broad's assessment, albeit retrospectively, the workplace was a significant issue in the development in the applicant's decline over the later part of 1999.
Mr Walsh submitted that on the evidence of Dr Broad it was clearly wrong to say that the incapacity dated only from July 2000. Mr Walsh submitted that in accordance with Dr Walton's report, the announcement about the Deputy Registrar position was simply the last, albeit particularly significant, incident in a long line of workplace stressors. Mr Walsh submitted that Trewin's case was to be distinguished on its facts as the psychiatric condition of the worker was caused by lack of permanency in her job.
He submitted in the applicant's case, it was the job itself and the demands of it that contributed to his depressive condition. He submitted that the applicant's hardy approach and professionalism saw him continue, despite advice to the contrary.
The Tribunal in reaching its decision, has taken into account the relevant documents and oral evidence and submissions. As stated, there is no dispute about diagnosis and the medical evidence is essentially consistent. The Tribunal found the applicant to be a witness of truth and accepts his evidence that increasing workloads from the early 1990s began to impact on his health.
Having had the opportunity to observe him in the giving of his evidence, the Tribunal finds that the applicant was not prone to exaggeration. His evidence was supported by the evidence of Ms Sikiotis and that of Ms Boymal, and none of his evidence was challenged as to its truth. The Tribunal finds that by the mid 1990s, the applicant was suffering from increased incidence of headaches and disturbances in sleep patterns, and accepts the evidence of Mrs Burke on this also. The Tribunal finds that the lengthy period between the announcement of the restructure and the interview for the position placed additional and significant stress upon the applicant, more particularly after the retinal ischaemic incident in August 1999.
This was in addition to his already stressful job, with which he was having difficulty coping. Those who work in situations dealing with unrepresented applicants and work in difficult and often emotional environments such as the Family Court presents, have no difficulty in accepting the evidence that was given about its pressures, and it was not challenged. The pattern of uncertainty about the process concerning the restructuring of the Deputy Registrar positions continued for over a year for the applicant. This was partly due to the intervention of the incident regarding the applicant's eye occurring in August 1999, causing additional delay in the process. The difficulties for the applicant were compounded further by the need to create a particular interview process to bring the panel back together. The Tribunal acknowledges the Court would have had difficulty reconstituting a panel involving interstate participants for a single interview. However, the applicant was already in a depressed state and the interview itself would have imposed additional stresses for him. The Tribunal accepts the evidence of Dr Broad that the applicant had a depressive disorder clearly evident in September 1999. With the value of hindsight, from the notes of earlier practitioners in the practice, Dr Broad is now able to say that the depressive condition was in evidence earlier, though in a mild form.
The Tribunal accepts that this is correct and considers that Dr Broad, having the most frequent contact with the applicant over the longest period, and being the treating doctor for the whole family, is in good position to take a long term view and be well aware of any other pressures that could have had a bearing upon the applicant. There were none identified apart from the pressures of the applicant's work. The Tribunal finds that the applicant has a depressive disorder as a result of increasing workloads in his workplace and as a result of a very stressful working environment.
The particular pressures in 1999 and the pressure of the uncertainty about the restructure and about his own future, lead to a result that the applicant was no longer able to cope. This process leading up to interview was extended for the applicant by the intervention of his eye incident. Applying the reasoning in Commissioner for Safety and Rehabilitation for Commonwealth Employees v Chenhall 1992 109 ALR 361 which dealt with a different part of the exclusionary provisions in s4 as they relate to disease or injury arising from reasonable disciplinary action, what must be examined is the extent of what is excluded under s4 of the Act by the exclusionary provisions. In Chenhall the Court decided that the term "disciplinary action" must be given its ordinary grammatical meaning. Processes prior to the action of a disciplinary nature being taken will not be included. Extending that reasoning to what is in issue here, the earlier phases before the "failure by the employee to obtain a promotion, transfer or benefit" are not intended to be excluded under the exclusionary provisions in section 4.
The Tribunal does not accept the submission of the respondent that the injury arose only after the notice to him of his failure to win the position in July 2000. The Tribunal does not accept the submission that the worsening of the condition that occurred after the announcement removes from liability under the Act, an injury suffered beforehand. The reasoning of Drummond J in Comcare v Mooi 1996 137 ALR 690 at 699 is apposite on this point :
I am not at all sure that if a worker is employed in circumstances in which his employer allows a state of uncertainty to exist as to whether the worker's employment which is longstanding or which the worker can fairly regard as permanent, might nevertheless be terminated, and if the employee develops a mental illness as a result of that uncertainty, that illness could not be said to have been contributed to in a material degree by the employee's employment.
For these reasons, the Tribunal decides that the applicant suffered an injury, being a mental injury, arising in the course of his employment, and it is not excluded on the basis of arising from the failure to obtain a promotion, transfer or benefit in his employment.
DECISION
The decisions under review are set aside and in substitution the Tribunal decides that the respondent is liable under section 14(1) of the Act, to pay compensation to the applicant in respect of depressive disorder, and, pursuant to section 67(8) of the Act, the Tribunal orders that the applicant's costs are to be paid by the respondent.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Rhona Hammond
              Clerk
Date of Hearing:  25 and 26 October 2001
Date of Decision:  2 November 2001
Solicitor for the Applicant:           Mr M Walsh
Solicitor for the Respondent:       Mr E Dezilwa