Cantwell-Zeb and Comcare (Compensation)
[2016] AATA 379
•7 June 2016
Cantwell-Zeb and Comcare (Compensation) [2016] AATA 379 (7 June 2016)
Division
GENERAL DIVISION
File Number(s)
2014/4231
Re
Marilyn Cantwell-Zeb
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 7 June 2016 Place Brisbane I affirm the decision under review
..............................[sgd]..........................................
Deputy President Dr P McDermott RFD
Catchwords
COMPENSATION – application for compensation for injury – alleged workplace bullying and harassment – major depression – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Wiegand v Comcare [2002] FCA 1462REASONS FOR DECISION
Deputy President Dr P McDermott RFD
7 June 2016
INTRODUCTION
Ms Marilyn Cantwell-Zeb (“the applicant”) seeks review of a decision of Comcare (“the respondent”) dated 28 July 2014 which affirmed a determination dated 2 January 2014 that the respondent was not liable to pay compensation to the applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) for a condition of “major depressive disease”.
CLAIM OF WORKPLACE INJURY
The claim form of the applicant dated 11 October 2013 contains a claim for “severe anxiety, depression with low self-esteem, severe aches, poor sleep, poor energy” which was alleged to be caused by “ongoing bullying and harassment throughout my career with child support and recently with my team leader”.[1] A statement with the claim form contained assertions that since 2005 the applicant has been subjected to bullying and harassment.
[1] Exhibit A, T-Document, T4 at pp. 20-22.
The applicant claimed that it was on 30 September 2013 when she was first injured or first noticed that she was ill. The claim form indicates that she first sought medical treatment on 11 March 2014 at the McCullough Centre.
LEGISLATION
Section 14 of the Act provides that the respondent is liable to pay the applicant compensation in respect of an injury suffered by her if it results in death, incapacity or impairment.
Under s 5A(1) of the Act: "injury" means:
a)a disease suffered by an employee; or
b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Under s 5B(1) of the 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.
Subsection 5B(2) of the Act provides:
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
a)the duration of the employment;
b)the nature of, and particular tasks involved in, the employment;
c)any predisposition of the employee to the ailment or aggravation;
d)any activities of the employee not related to the employment;
e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
The term “significant degree” is defined in subsection 5B(3)of the Act to mean a degree that is substantially more than material.
EVIDENCE OF THE APPLICANT
Evidence in Chief
The applicant was shown her statement of evidence[2] and asked about her remarks on the second paragraph of her statement concerning when she commenced employment for the department in 2005. Her last position before going on leave was as an Employer Services Officer; she commenced duties in that position in about 2011. She was also directed to paragraph seven of her statement in which she asserts that in or about 2011 she asserted: “In or about May 2011, I believe I was subject to bullying and harassment by my team leader”,[3] the applicant stated that this date was incorrect and that she believed the correct date to be May 2012. The applicant was then taken to paragraph 9 of the statement in which she remarked that in May 2011 she sought medical assistance from Dr Asadi. The applicant verified that this date was correct.
[2] Exhibit B, Statement of Marilyn Cantwell-Zeb dated 16 June 2015.
[3] Ibid at [7].
The applicant was then taken to paragraph 13 of her statement which refers a number of incidents. The applicant was directed to an event that she described on the 4 October 2013 where she asserts: “I recall one incident where Debbie was constantly monitoring me while I was on my lunch break”.[4] Underneath those remarks are comments where the applicant stated: “I recall saying words to the effect, why are you harassing me, please stop”.[5] The applicant confirmed that those remarks relate to the lunchbreak incident and not to an earlier incident in that paragraph.
[4] Ibid at [13].
[5] Ibid.
The applicant was asked when the lunch break incident occurred and was shown an email dated 11 October 2012 which was sent to the applicant.[6] The applicant did not recall getting that email. The applicant was taken to another email dated 12 October 2012 which would have been that particular incident.[7]
[6] Exhibit A, T-Documents, T7 at p. 125.
[7] Ibid at p. 134,
The applicant was then taken to paragraph seven of her statement in which she mentioned that her team leader would constantly send her emails. The applicant was directed to some more emails to her from her team leader. One email of 25 September 2013, which refers to “inaction taken”, contains the remarks: “I would like you to work only on linking referrals as a priority today”.[8] The applicant confirmed that this is the type of email that she was referring to in her statement when she referred to “constant emails”. The applicant was asked to give the Tribunal an idea of what the work actually involved and what is meant by “linking referrals”. The applicant replied that linking referrals is taking action to link paying parents to their employers to get child support moneys. The applicant confirmed that there were timeframes around taking those actions that she had to work to.
[8] Ibid at p. 97.
The applicant confirmed that, aside from the matters that were touched upon, the contents of the statement of evidence are true and correct to the best of her belief and knowledge.
The applicant was taken to page 33 of the Tribunal documents and confirmed that she wrote that document. The applicant was asked whether she felt the need to correct that document. She replied that she was not sure because she had not gone through it thoroughly; she had just had a quick glance of the main points. The applicant confirmed that when she wrote that document, she was satisfied that it was true and correct. She stated that she believed that she would have written the correct date. She had not looked at “typos” but she could not remember dates specifically without looking them up.
Cross-examination
In cross-examination the applicant was taken to her statement of evidence where she made a correction to paragraph seven where the remark to “In and about May 2011” is wrong and should instead read “In about May 2012”. The applicant was asked whether she did not give as much detail in respect of specific events: this question was directed to either the document in front of her (the statement of evidence) or the lengthy document which accompanied her claim. The applicant replied that she did believe to the best of her knowledge that she had actually put as much detail as she did recall at that time that she felt was important for the documents.
The applicant was asked whether she accepted the proposition that, aside from the 4 October 2013, she had not specified any particular instance of what she called bullying and harassment by her team leader. The applicant stated that she did believe that in her documents that she had written, both in the statement and her lengthy document, that she had put the points that she then needed to make in those two documents. When the applicant was asked could she respond to the question or not, she replied that she thought that she did respond to the question. The applicant was asked about her not specifying any individual events other than the 4 October 2013 to which she replied that she did not understand the question.
The applicant was told that she had been earlier taken to the email from her team leader of 25 September 2013[9] and asked whether she had regarded this as an example of her bullying and harassing her: the applicant replied “Yes”. The applicant was then asked whether the team leader was merely asking her to do her job, she replied “Yes”. The applicant was asked how the email had become bullying and harassment, the applicant replied that with a lot of constant emails that are marked urgent, she cannot prioritise her work.
[9] Exhibit A, T-Documents, T7 at p. 97.
The applicant was then taken to the second last paragraph of the email which states that if there was an issue that restricted her from actioning the in-trays, to come and talk to the team leader. The applicant was asked whether she had done that, she replied that she did not recall any specific details of any particular day but she had seen and spoken to the team leader on different occasions. The applicant also confirmed that she did not recall dates specifically but she would have addressed issues with the team leader.
The applicant agreed that she was taking a lot of unplanned leave at least from 2010 onwards in respect of a number of physical ailments. The applicant was asked whether she would fall behind her work that she necessarily had to do as part of her job. She agreed that she this would happen on “some occasions”. It was put to the applicant that this was a fairly consistent pattern of her work situation. The applicant was referring to the IPA when the team leader wrote that she was pleased with her level of work and that the team leader wanted to use her to help others manage their workload in-trays.
The applicant was asked whether there was a fairly consistent pattern of her falling behind in respect of her work output, she agreed that this was the case due to sickness.
The applicant agreed that the email from the team leader is merely asking her to prioritise something that has fallen behind. In the email the team leader states: “I’m concerned that you have not taken any action on linking referrals each day. This is something that needs to occur daily as part of your role”.[10] The applicant accepted that this was a fair comment.
[10] Ibid.
The comments of the team leader from the email were read out to the applicant: “As we’ve had discussion previously, the importance of taking required action of all elements of your workload, the reports, ERRs and in-trays for your result this month. It’s evident that this approach is not happening which is having an impact on your outcomes”. The applicant was asked whether this is a fair criticism or a fair reflection of what was happening. The applicant agreed that she was falling behind due to illness.
Further comments of the team leader from the email were read out to the applicant, one comment referred to “the inaction taken on the above in-trays, after making three contacts today”. The applicant agreed with the proposition that was put to her that she was being reminded of important time constraints or time limits on various work tasks. The team leader also mentioned: “It is not appropriate for in-trays to fall overdue to no action”:[11] the applicant agreed that was a fair point to make.
[11] Ibid.
The applicant was taken to entries on 6 April, 12 April and 20 April 2013 which do not mention work stress and entries until 13 and 20 May 2013 which refer to a number of physical ailments but nothing to do with any work stress. She replied “I will just read - I will just quickly read all this. I haven’t seen this document.” The applicant was asked whether she had read these documents before and she replied “No. Actually, no. This is the first time I have seen it”.
The applicant was referred to an entry for 20 May 2013 which indicated that she was in dispute with her doctor about B12 injections. It was put to the applicant that this concerned personal issues and that there had been little if any serious mention of bullying and harassment. The applicant agreed with the comment according to those particular notes.
It was put to the applicant that the particular email, which she had selected out of any number of emails, as an instance of harassment is nothing more than her merely asking the applicant to catch up with her work. The applicant agreed with that proposition in respect of that particular email.
The applicant was shown a copy of Dr Apel’s report.[12] The applicant agreed that her solicitors sent her to see Dr Apel and that his report would be utilised as part of her case. The applicant was asked to read the account of events in the report.[13] While she could not recall the exact dates, she agreed that she had seen Dr Apel on 20 January 2015 and in March 2015. She also agreed that she had seen Dr Varghese’s report before she had seen Dr Apel.
[12] Exhibit C, Report of Dr Apel dated 1 April 2015.
[13] Ibid at pp. 1-3.
The applicant was asked about the opinion of Dr Varghese who stresses the psychiatric difficulties that she was facing in respect of her husband being back in Pakistan and not being able to get to Australia. It was put to the applicant that she did not mention anything to Dr Apel about that particular issue in the history which she gave to him. The applicant replied that she thought that she had at the time. It was put to the applicant that there was no mention of this in the report.
The applicant was asked about whether the issue of her partner still being in Pakistan and not being able to move to Australia was impacting upon her psychiatric health for some time; she replied “only partly”. The applicant explained that she had a lot of stressors in her life and that was only one small factor; the main factor at the time was work.
The applicant was shown clinical notes from a number of medical practices that she had attended which were admitted into evidence.[14]
[14] Exhibit D, Clinical Notes of Pacific Family Medical Centre; Exhibit E, Clinical Notes of Surgery Centre; Exhibit F, Patient Health Summary from Algester Medical Centre.
The applicant was referred to a consultation of 13 January 2009 when she indicated that she was desirous of falling pregnant at that time. The applicant was asked whether the chances of her husband being able to stay in Australia would have considerably strengthened if she and her husband had conceived a child. The applicant replied “Yes, but it’s not a guarantee”. The applicant was asked why her husband had to leave Australia: she confirmed that was because he had to go back to work in Pakistan.
The applicant was referred to an entry on 6 July which refers to stress at work, lethargy, and complaints of a sore throat. It was put to the applicant that she had complained of stress at work but that complaint was accompanied with complaints of physical illness. The applicant stated that she was advised by medical doctors that her physical illness was due to the stress. She was asked which doctor told her that, she replied that was her current doctor, Dr Farag. It was put to the applicant that she had only been seeing that doctor since she made her claim. She stated that she was seeing another doctor at that practice for, she thought, a few months before then.
It was put to the applicant that no doctors, prior to putting the claim in, suggested that the physical complaints were caused by stress at work. The applicant replied that she had been advised by doctors, to the best of her recollection, that stress can cause these physical symptoms. She stated that she had been advised of that “much, much, earlier” before the claim.
The applicant was advised that she had after 20 May 2013 went to another medical practice and was shown the medical notes from that practice.[15] The applicant was directed to the entry for her first appointment on 8 August 2013 when she had a cough and a sore throat. On 14 September 2013 she consulted the practice for a stomach complaint. On 30 September she had consulted the doctor for multiple problems and was then asked if she was self-medicating herself with natural supplements and was not taking any of the medication which had been prescribed for her. She replied “correct”.
[15] Exhibit D, Clinical Notes of Pacific Family Medical Centre.
She was also told that the notes indicated that her husband was overseas. She replied “if the note says, I would have, yes, spoken about that”.
In relation to the note of 30 September 2013 which mentioned a “hard time at work with bully boss” it was put to the applicant that all that was happening at that time was the email dated October 2013 where she merely had to be reminded of her routine workplace responsibilities. She replied “That was one of the emails”. The applicant was asked if this was nothing more than the applicant being merely reminded as to her routine work tasks and the need to complete them in a timely fashion. She replied “I do believe it was my lawyers that picked that out”. She then added “I’m just trying to remember that email, that it was me and my lawyers that picked it”. It was put to her that this email was an example of what she considered bullying and harassment. She replied “That would be - yes, I agree. Yes. That was one of the elements”. It was put to the applicant that when she was questioned on it, she accepted the proposition that it amounted to nothing more than you being reminded of completing your work tasks in a timely fashion. She replied “Yes, it was asking me to do that”.
The applicant agreed that she was referred to a specialist who deals in chronic musculoskeletal pain issues.
It was put to the applicant that it was on 11 October 2013 that she submitted her claim at a time when her physical ailments were aggravating, she agreed and also agreed that she was referred to a specialist.
It was put to the applicant that she settled upon the date of at least 4 October 2013 in her evidence-in-chief, and was asked if there was another further incident around that time, she could not think of one. The applicant was asked to look at her statement where in paragraph 13 there is a reference there to 4 October 2013 and was reminded that her barrister had asked her a number of questions attempting to illicit from her whether or not there was another incident around that time and she could not specify one. She replied “I did say that that was terrific, because he asked if - it starts from … I recall the lunch time incident, and I said, ’Yes’. So there’s two - two separate ones here”.
It was put to the applicant that on 4 October 2013 she was away from her desk from 10:02am until about 10:17am. She replied “I don’t recall the date - the times I was actually gone”. She was then told that there was a reference in the Tribunal documents about her receiving a call and then leaving the work area for a further 25 minutes.[16] The applicant replied “I did leave the work area but exactly how long I was away I can’t recall”. It was also put to the applicant that “this wasn’t the first time that this had occurred” and that other team leaders had commented upon the amount of time that she was spending away from her work desk in October 2013. It was put to the applicant that in the two months prior to October 2013, there was two occasions where other team leaders had raised the prospect of her spending amounts of time away from her desk, more particularly, especially when the team leader was absent from the workplace. When she was asked whether that happened or not, she replied that she did not recall specifically.
[16] Exhibit A, T-Documents at p. 67.
The applicant was asked whether her team leader was aware of the various physical illnesses that she was suffering. She replied: “I don’t know that I would have told her every single little thing. … I’m sure I would have told her the main things”. The applicant was asked about the issue about her husband not being able to get back to Australia. She replied “Of course I did. I would have. Yes”. It was put to the applicant that she confided in the team leader and she was more than willing to listen to her. She replied “Yes, and there was a reason I did that”.
It was put to the applicant that on Friday, 4 October 2013, her team leader approached her and explained that she had seen her leaving her desk at 10am and that she was away for some 25 minutes and that her team leader wanted to know if she had received any upsetting news. The applicant replied “No, I don’t” when asked whether she remembered her asking her about that.
It was put to the applicant that her team leader had explained to her the importance of not being away from her desk for any lengthy times and what effect that could have upon her work output. She replied “I do remember her standing over me and I felt very uncomfortable about it, that she didn’t say any caring things about me…You stated that she was asking if I had any bad news. She didn’t ask any of that...She was standing over me with her hands on her hips. I felt really uncomfortable with that. I did not feel safe”.
The applicant was referred to a further incident on 11 October 2013.[17] She replied “I think that’s when I put my Comcare claim in … I wasn’t at work on 11 October … 7 October was my last day”. The applicant was asked if the “two of you” met downstairs in the food court. She replied “I was not at work. That was a time that Dr Farag gave me off”. The applicant was asked to contemplate another date; she replied that it would have been an earlier date. The applicant agreed that at some time in early October, the team leader and her meet down in the food court at 1:45pm. She replied “Thereabouts. I don’t recall the exact time”.
[17] Exhibit A, T-Documents, T7 at p. 68,
The applicant was told that the team leader observed her sitting at a desk at the computer services eating her lunch. She replied “That probably would have been around about right”. It was also put to her that her team leader checked the roster and confirmed that her designated lunch break would have finished, at which point the applicant remarked: “I don’t recall when my lunch break would have finished”. The applicant was asked if she remembered that the team leader approached her and asked her if she was still on lunch break. She replied “Yes, and I fully explained the situation to her”. It was put to the applicant that she told the team leader that she was still on lunch and that she was only taking 30 minutes. She replied “I advised her that I actually wasn’t feeling well. I came - when I came back to my desk, so I put my lunch aside and I decided to go straight back into work, and then I explained to her that’s why I’m having lunch now, because I was feeling a bit better. That’s why I - it was off the - whatever roster that she was looking at that time for lunch, for a specified lunch”.
The applicant was asked if she remembered that she made the allegation that her team leader was micromanaging her. She replied “Yes”. It was put to the applicant that the team leader merely explained that she wanted clarity on when she was actually taking her break, particularly in light of the fact that she had just returned to work after four days of personal leave due to stomach issues. She replied “When I referred to her as micromanaging, that - that was - there was a lot of issues, not just the one - that one issue”. It was put to the applicant that the team leader asked to speak with her in the meeting room about this. She replied “She actually didn’t speak to me. She yelled at me”. It was suggested to the applicant that nothing of the sort happened and that she did not even set this out in her statement, she replied “Mr Clark, you weren’t there on the day”. The applicant was asked to respond to the question, she replied “this one is actually in - in - it’s got an exclamation mark in there. In my Comcare statement, I - I actually do state it”. It was put to the applicant that she could not even nominate when this incident occurred when she was asked earlier that morning. The applicant replied “I was getting mixed up with the dates, as I stated”.
EVIDENCE OF TEAM LEADER
The respondent called Ms Debrah Ireland, an employee of the Department of Human Services. Ms Ireland confirmed that she had provided a statement.[18] Ms Ireland stated that the contents of her statement are true and correct. Ms Ireland was asked whether there was anything in the statement that she wished to alter or delete, she referred to the comment on page 68 which says:
Ms Cantwell-Zeb (indistinct) around, not - again around not taking designated break away from the work area on Thursday, 11 October 2013.
[18] Exhibit G, Statement of Debrah Ireland with attachments.
Ms Ireland states that this is actually incorrect and should refer to 2012.
Ms Ireland said that she joined the employee services team in May 2012 and had not worked in any supervisory capacity with the applicant prior to that time. She explained that the employer services team is part of the Child Support Division and the employer services team works directly with the employer to establish links for the employer to commence making deductions of child support payments. Ms Ireland confirmed that she was the team leader of a team which included the applicant.
Ms Ireland confirmed that the applicant is still employed as an APS 4 service officer. Her functionality within the team is to reconcile an “alpha split” with the employers each month. She explained that the team manages the money that comes in from the employers which is disbursed across to the paying parent’s account. The employer takes the money from the paying parent who is the person who is paying child support. Once the accounts are reconciled that money is disbursed to the receiving parent. The allocations need to be actioned within 48 hours through calls and letters that need to be sent out and the process needs to be carried out in a timely manner. She agreed that people who receive child support payments are reliant upon that money and that the applicant’s job was to ensure that the process was completed without delay.
Ms Ireland stated that it was part of her role as the team leader to ensure that the applicant met the time constraints. She emphasised the need to keep progressing the action items within the required timeframes and it is not unreasonable for a team leader to send reminder emails, not just to the applicant and to anyone else in the team who had work sitting there that needed to be moved on. At some point in time team leaders will make the decision to actually move that work around so that it is actioned effectively within the required timeframe.
Ms Ireland was asked if she became a supervisor in May 2012. She replied that she was a team leader before May 2012. Whilst she joined employer services as their team leader in May 2012, she had had actually been a team leader within Child Support for two years beyond that. She became the applicant’s team leader in May 2012.
Ms Ireland was taken to the first page of her statement because the applicant had stated that she had made reference to managing her work successfully. Ms Ireland was referred to her comments:[19]
She has required assistance with her workload each month with the exception of three months since May 2012.
[19] Ibid.
Ms Ireland confirmed that those remarks were correct.
Ms Ireland was referred to her comments:[20]
Both attendance and workload management have been raised by two previous team leaders also.
[20] Ibid.
Ms Ireland also confirmed that those remarks were correct.
Ms Ireland was taken to her statement where (at T7, fol 64) she remarked:[21]
Ms Cantwell-Zeb has high unplanned leave which has impacted upon performance indicators being met. A history of stomach problems, sinus issues, reactions to medications has been raised as a cause for her illness.
[21] Exhibit A, T-Documents, T7 at p. 64.
Ms Ireland was asked whether the pattern was consistent from the time she took over in May 2012. She replied that it was for most months except for two. Apart from unplanned leave, she referred to other factors that have on her own admission impacted on her attendance: she is estranged from her family and doesn’t have a lot of family support; she has a partner or a husband who is living overseas and for whom she was spending a great deal of time filling out visa applications. Ms Ireland mentioned that the applicant had disclosed that she had married someone who was residing in another country and she was having difficulty getting a visa for him to return to the country and this was certainly having an impact on her.
Ms Ireland also mentioned that the applicant had spoken to her on several occasions about a stomach virus which on her own account had quite an impact on her own health and wellbeing.
Ms Ireland was asked to explain the required assistance with her workload with the exception of one three-month period from May 2012. Ms Ireland remarked:
The employer services workload has several aspects and it’s being able to manage the work effectively to move through all elements of the work through the month. So [the applicant] …would often have the ability to focus on the reconciliation of her accounts, which was wonderful, but her in-trays would often suffer because of that. And for many months we worked on her COGNOS reports. Again, I will try and explain what a COGNOS report is. Often you will get money into the Child Support Agency where it’s difficult to reconcile the account because there’s not enough information accompanying those payments, so we need to contact the employee and find out why they have remitted the money, what period of time it aligns to, and often she would forego her actioning those COGNOS reports and focus on other things. It was more a focus and ability to effectively work through all aspects of her workload.
Ms Ireland was asked how often she would have to be raising these issues with the applicant. She replied: “Mostly in our monthly one-on-ones. I would often go and chat to her at her desk and raise things, send things through via email. Her absence had a huge impact on her ability to action the work”.
Ms Ireland was asked if she took steps to find others to do the work, she replied: “Yes. We quite often get allocated - when someone is away for, say, a week at a time, then we would move that work around, and it’s part of the employer services role statement that people on unplanned leave’s work would be distributed across the team”.
Ms Ireland was asked to confirm that there wasn’t an expectation that the applicant would have to complete work that she otherwise would have done but for the fact of being away for three weeks. Ms Ireland replied:
No, no. On a regular occurrence, if she was away, others would work on her Alpha split, because when you’re reconciling accounts there’s two important periods through the month, and that’s at the end of the first fortnight - we call it first disbursement. 88 per cent of our employees - sorry - our employers need to have their accounts reconciled. And then the remainder two weeks of the month is when you would work on the remaining - the remaining parts of your Alpha split.
Ms Ireland was asked about the response of the applicant when she raised these issues with her. Ms Ireland replied:
She certainly took on board that she hadn’t been actioning her work. She raised being on unplanned leave as the common factor of her not being able to get through her work, despite work being moved around. I recall one occasion where [the applicant] had returned to work and had given out some of her Alpha split, so when she returned to the workplace she was actually sitting at 44.4 or 44.8 per cent, which had already been completed, and we had given out her in-trays, her linking allocations as well.
Ms Ireland was shown an email dated 25 September 2013 from her to the applicant in the Tribunal documents.[22] Ms Ireland remembered writing that particular email. Ms Ireland was asked what issues had arisen which prompted her to write that email. Ms Ireland replied:
the reason I sent the email was because if you look down - there’s 12 in-trays, which I referred to earlier. The top three were due that day but no action had been taken, so in effect, what that means is in the absence of the in-trays being actioned within the 48 hours, it would mean that they would certainly run overdue but now add another 21 days onto the finalisation of the in-trays and as we work our way down the list, the ones that were due the following day should have already had two calls and the letters issued.
[22] Ibid at p. 97.
Ms Ireland was asked about her comment in the second paragraph of the email:
As we have had discussion [sic] previously of the importance of taking the required action of all elements of your work, which included reports,
Ms Ireland was asked how many times she had discussed the sort of subject matter that’s dealt with in this email; she replied:
Monthly one-on-one meetings. It would be in emails. There would be other emails that would suggest that there would be - there would be components of the work - her work that needed action throughout other parts of the month, so it wasn’t - it’s not uncommon. But certainly, when we have monthly one-on-ones, there are two components to their outcomes. There are ERRs.
Ms Ireland was asked about ERRs which she explained are “the accounts to be reconciled”. She stated that part of the benchmarks of a service officer in employer services is to have 88 per cent of their employees reconciled by this first disbursement, which is the second Friday of the month, and 100 per cent reconciled at the end of the month. In addition to that, their in-trays need to be actioned accordingly and their COGNOS reports actioned. She would set times for COGNOS reports to be actioned, which was something that the team voted on and agreed upon as the most effective way for them to stop and focus on one element of their work for a period of time through general discussion, one-on-one meetings and emails.
Ms Ireland was referred to the next page of the email which read:[23]
It is not appropriate for in-trays to fall overdue…
[23] Ibid at p. 98.
Ms Ireland confirmed that this was a point that she had made to the applicant in the past.
The attention of Ms Ireland was drawn to her comment in the email:[24]
If this was an issue that restricted you from actioning these in-trays, please come and chat to me.
[24] Ibid.
Ms Ireland was asked if she remembered if she ever come and chat to her , she replied “Not in September, no”
Ms Ireland was referred to attachment eight of her statement which is a note for a meeting on 21 June 2012. There is a reference to a high level of unplanned leave and a frequent pattern of arriving late for work. The note mentioned “One to three hours late most days”. Ms Ireland was asked whether that had become an issue in June 2012. Ms Ireland remarked:
It had actually always been an issue. … I moved into the team in May, and it was evident by June that there was a pattern of late attendance, so that was part of the reason that we talked about it in this particular discussion. There were quite a few things that we needed to talk through because I needed to get an understanding of whether there was anything that was impacting on the ability to be in the workplace at the designated start time of 7 am.
Ms Ireland was asked whether the applicant had ever designated anything in that regard, she replied:
Yes. We talked about that she had been suffering illnesses for a three-week period around headaches, tonsillitis, tooth ache - sorry - headaches, fatigue, and at that point she advised that it had been improving. She also mentioned an occurrence that had happened in the workplace the year before with her previous team leader and we talked through that, about what happened, and I provided her the opportunity to have it further investigated just to give her some closure, but at the time she didn’t want to pursue it and she asked that I not document what we discussed, which I haven’t done.
Ms Ireland was directed to the last document of attachment ten of her statement which is an email from her to the applicant at 4:19pm on Thursday, 11 October 2012 and asked to briefly explain what happened on that day. Ms Ireland explained that she went downstairs to the food court on level 1 in the building to purchase lunch and the applicant was down there getting her lunch too at about 1:50pm. She then returned to the 23rd floor, had lunch in the kitchen, and then about 2:30pm she realised that there was lots of chatting going on in the desk area where the applicant sits. The applicant then stated that she was then at lunch. The applicant had advised her that she had bought her lunch and she put it aside because she didn’t feel hungry and she wanted to have lunch with her peer who was having lunch at a later time.
Ms Ireland stated: “I reminded her that she needs to take her lunch breaks during designated times, because before I approached her desk, all in a rostered environment, and the roster clarified that her lunch break had actually been and she should have had lunch a lot earlier than what she did. And at that point she actually got quite aggressive, stating that I was micromanaging her and that I didn’t have a right to tell her when she was able to have her lunch breaks, and I confirmed with her again that you can’t have a lunch break when you start at 7 outside of five hours, and that’s what she was doing. And given the tone of the conversation and her reaction, I actually offered to meet with her off the floor, because it wasn’t an appropriate place to have that conversation, at which time she refused to meet with me. Given how hostile she was at the time, I decided to go back to my desk and pen this email to allow her to finish her lunch, calm down, with the intention of meeting with her the next morning.” Ms Ireland confirmed that the applicant did not ever reply to her email.
Ms Ireland was taken to attachment eleven to her statement which contains a number of emails in that attachment. Ms Ireland stated that she sent an email to Mr Mark Aton who is a rehabilitation manager of the people support team and that he replied to the email on 16 October 2012 at 1.40pm. When asked what prompted the email, Ms Ireland explained that the applicant did not come into the workplace the following day and she was off for a period of time. Ms Ireland stated that she actually asked her to come back in and have a discussion about the incident and to try and move forward from it, and in readiness for her to return to the workplace she contacted the people support team to engage some assistance for her.
The attention of Ms Ireland was directed to a note which stated :
Several support strategies have been implemented to assist Marilyn, such as a firstly ending the regular hours agreement - - -
Ms Ireland confirmed that the support strategies did happen and the note referred to “twice-weekly discussions with her about her wellbeing “. Ms Ireland referred to general catch up when she came in the morning: “How you feeling? Are you okay?” The note also referred to “additional reg and flex approvals to support her” and “seating reallocation within the team to combat her concerns with the lighting”. Ms Ireland said that the seating allocations would have occurred before October 2012 because initially the applicant was sitting in another area of the team and she asked to be moved to a specific desk where she previously sat. Ms Ireland said:
At the time I said to her, “If you were sitting there before, why did the team leader move you,” and she said, “I don’t know”. So I said, “Look, given you’re sensitive to the light and you’re happy to sit there, let’s make it happen,” and she moved the following day, I recall. And then I since found out that the reason she was moved from that initial seating arrangement was because of the excess chatting in the in the work environment.
Ms Ireland was taken to a note which referred to “Adjustment and repair to a workstation chair” and “Updated workstation assessment declined”. Ms Ireland explained that there was an issue with the applicant’s chair and the chair company came in and fixed it, or someone in the building might have fixed it for her but she did not need or did not want another workplace assessment.
Ms Ireland was asked to explain a note which referred to: “Approval of late planned leave to assist Marilyn with personal issues and her health.” Ms Ireland remarked:
“Often - Marilyn had - had spoken to me about trying to find new doctors, and she was changing doctors regularly, trying to find some resolution to her health issues. And often she would require late approved leave, which I was more than accommodating with. With the last planned leave occurring on 1 October, we had a conversation where she expressed some relief to have found a new doctor, and she requested 8 October off as late planned leave because she had appointments with a doctor, a specialist, an appointment at the hospital I think, from memory. And she asked whether she needed to find someone else to replace her on the telephone roster in telephony environment, and I said, “No.” I just took her off the roster to allow her to go to the medical appointments”.
Ms Ireland was then taken to the various dates when the applicant had unplanned leave between April and October 2012. Ms Ireland was asked to explain the discrepancy between a record of the applicant having late arrivals of 119 days and a note that stated: “Marilyn has arrived late in the workplace on 63 occasions”. Ms Ireland was unable to explain the discrepancy stating that she would have to check the records and stated that there were 119 days but that the applicant was on a regular hours agreement that hadn’t been reviewed for quite a long time, where she was supposed to start work at 7 am each morning, and she wasn’t making it into the workplace.
Ms Ireland stated that since 2012 she had offered the applicant the opportunity to have a Rehabilitation Case Manager to support her with her performance and her engagement in the workplace, but she declined this assistance on two occasions.
Ms Ireland was directed to her statement which refers to an incident on 4 October 2013.[25] She was asked to tell the Tribunal what happened on that occasion. Ms Ireland remarked:
My desk is beside Ms Cantwell-Zeb’s and I observed her leaving her desk at around 10 o’clock. She returned to her desk approximately 25 minutes later. Or, actually, sorry, not 25 minutes later. It was less than that. Yes, about 15 minutes later, at which time her mobile phone rang, and she took the call in a conference room, which I had no issue with. She returned to her desk about 25 minutes later, and I popped over to see if everything was okay, because I know that she was in the midst of working on immigration visas and things for her husband. So I bent down beside her to ensure - because the desks are quite high with a petition around them. To protect her privacy I made sure that I knelt down beside her to ask whether everything was okay, and that she hadn’t received any upsetting news, at which time she confirmed that she hadn’t. So I then asked, you know, why she’d been off the floor and at that time she - I think she advised me that she’d been on another floor delivering a document. Now, it’s very unusual for a service officer to actually have to take work off the floor. We certainly deal electronically with everything that we do. And I certainly wasn’t made aware of what she was working on, or that there was a deadline for the document. So I’m still unclear as to what it was.
[25] Exhibit A, T-Documents, T7 at p. 67.
Ms Ireland was asked whether the incident on 4 October 2013 and the incident on 11 October 2012 were prompted in any way by the longitudinal history as to what had been happening with her to which she replied: “No, not at all”.
Ms Ireland was asked to explain why she spoke with her in respect of those two issues. Ms Ireland replied: “It’s reasonable for a team leader to ask what time people are having for their lunch, and are they staying within the designated times of their roster. More importantly it’s my duty of care as a team leader to ensure that people are taking their breaks within that five-hour timeframe”.
Cross-examination
Ms Ireland was directed to T7, fol 135 of the Tribunal documents which she confirmed was the “job statement” of the position of the applicant and the statement that ESOs work under the general direction of a TL - team leader and that “Team sizes are approximately 15 staff, which consist of staff, a mixture of staff at the APS3 and APS4 level”. Ms Ireland confirmed that these details were correct and that the applicant as one of her APS4s.
Ms Ireland was referred to a box in the job statement referring to “Employers services and ESOs’ primary responsibilities”. Her attention was directed to the page 136 which refers to “action work from in-trays and reports”. She was asked whether that was a reference to the in-trays that she was talking about before that need to be actioned daily. Ms Ireland replied: “You’ve got 48 hours to action it, yes. But when I say action daily, it means work that you’d started the day before would be ready for its second call, so when we talk about actioning work items daily, it’s to move them on. It’s not necessarily actioning the ones that you’ve got that day”.
Ms Ireland confirmed that the in-trays need to be progressed each day. She confirmed that there is a series of phone calls that need to be made as well as follow up letters. Ms Ireland was also directed to another dot point on that page which refers to “Undertake and adhere to rostered phone shifts”. She confirmed that this is a reference to both outbound and inbound calls and that there is an inbound telephone queue which has a rostered time to be on the phones, and outbound calls are made around that. Ms Ireland agreed that the rostered phone shifts are for inbound calls. Another dot point on the job description referred to proactive outbound calling. Ms Ireland confirmed that the last dot point in the job statement concerned the requirement to “Manage competing priorities in a high volume work environment” which she agreed was a fair description of the work environment.
Ms Ireland agreed that as a team leader she would regularly send emails to her staff to identify urgent or overdue tasks. Ms Ireland was taken to passages in her statement[26] which explains that sending these emails affords the opportunity for the ESO to quickly read the emails and know what action is required and part of her role is to make sure the work is actioned with the least amount of impact to families. It was put to Ms Ireland that the purpose really of these emails was just to make sure that work is being done, and done on time. She replied “Yes, and just - it gives a snapshot of where the ESOs are up to, so they know that, okay, there’s the CSID, I’ve got to go in and make one call on that. Rather than have to go in and relive the case again and look at all the case notes”.
[26] Ibid at p. 64.
Ms Ireland agreed that in her statement she has included some emails which are examples. Ms Ireland was asked “That’s not a complete record of all the emails you’ve sent to Ms Cantwell-Zeb?” She replied “I don’t know. That’s what I could find that I kept that were on file. But there were also - there’s also other emails around national feedback, particularly in that - when I looked back at the emails sent out in August and September, and the first week of October, there were lots of emails received from national feedback. There were emails that I forwarded on to Ms Cantwell-Zeb from our SSO around some work that she’d been doing that she hadn’t followed up”. Ms Ireland was asked whether there are other emails that are not included. She replied that there are other emails that weren’t sent by herself but by others.
Ms Ireland agreed that the emails that she sent to the applicant formed an everyday part of her duties and tasks as a team member in employer services and that it was just an everyday part of her job to receive the emails. Ms Ireland stated that she would follow up verbally or through written communication.
Ms Ireland was referred to a passage in one of the Tribunal documents which is an email from her to the applicant which states:[27]
I understand that at times it’s difficult juggling workload, but the role of an ESO within ES has always been one where in-trays are actioned on a daily basis -
[27] Ibid at p. 82.
It was put to Ms Ireland that it can be difficult juggling the workload of an ESO, she agreed. She confirmed that the email was sent on 9 February 2013 at 10:03 am.
Ms Ireland was also taken to an email from the applicant to her on 19 February 2013 at 12.48 pm which deals with a number of things, but reference was made to this sentence:[28]
I know that I am behind in my work and I can’t do the work if I’m not here, and so I’m doing all the catching up now.
[28] Ibid at p. 81.
Ms Ireland agreed that she would have understood from that sentence that the applicant felt she was behind in her work. Reference was made to the next sentence in the email which states:[29]
I know you don’t have any faith in me doing my work and hence you keep sending all the emails of what needs to be done.
[29] Ibid.
Ms Ireland was asked to just put to the side for a moment whether she is right or wrong in what she says. Ms Ireland was asked if she would have understood that the applicant felt like she did not have any faith in her work, she replied “Which, at the time I spoke to her about it”. The third sentence in the email states:[30]
I already know what needs to be done and don’t need constant emails about them as I have faith in myself to do my work.
[30] Ibid.
When Ms Ireland was asked whether she drew any conclusions from that last sentence, she replied that the applicant was struggling to catch up with her work, she added “But again it was more about having - being able to effectively plan and manage the work throughout the month”.
Ms Ireland was referred to the lunch incident on 11 October 2012 and was asked if she was satisfied for the explanation of the applicant for how long she was taking for lunch. She answered:
“Well, I couldn’t have been satisfied because I went to buy lunch at 10 to 1, and spoke to Ms Cantwell-Zeb while she was purchasing her own lunch. So when I spoke to her at her desk and asked whether she was still at lunch, and she said that she didn’t actually take lunch when she got back, that she was taking it now, I took that at face value. And when she reacted when I asked her about taking her lunchbreaks during the designated time as per the roster, I left it at that. She didn’t want to catch up and talk about it away from the team, but was certainly quite hostile in her response to me about the comment about micromanaging and that I can’t tell her when to take her lunchbreak. And that was never, ever my intention. It was more about clarifying that she’s having lunchbreaks within that five-hour period, because at that point in time she commenced work every day at 7 am. And to take a lunchbreak at 2.30 is outside of that five hours. So was I satisfied with the explanation she gave me? Yes, she advised me that she was having lunch and I left it at that. And her timesheet reflected that she had lunch at a later time, but my concern with that was the 15 minutes that it took her to go down and get her lunch wasn’t accounted for in any of the day”.
When Ms Ireland was asked whether the applicant said to her something like, “Why are you harassing me”, she replied: “She did. No, she didn’t actually say harassing her, she said, “Why are you micromanaging me? You can’t tell me when to have my lunchbreaks.” Ms Ireland confirmed that she asked her to go into a meeting room to continue the conversation. Ms Ireland was asked whether she said to her: “In the room now”, she denied saying that. She also denied talking about “going into the room now”. Ms Ireland said that she asked the applicant: “Let’s catch up off the floor so we can talk about it further. “ She also said that when she refused to go to a meeting room she “left it” to give her some space and catch up the following day.
Ms Ireland was asked: “I just want to make sure then I understand the purpose of you approaching Ms Cantwell-Zeb on that day. Initially was your concern that she was taking too long for lunch?”. She replied “That’s right”. Ms Ireland was then asked: “And then when she gave her explanation, you realised there’s still an issue in that she’s taking lunch too late?” to which she replied: “Yes, and it was more of a reminder, you need to make sure that you’re taking your lunchbreaks at the designated times, because she … often had lunch with one of her peers, who started in the workplace each day much later than she did”.
Re-examination
Upon re-examination Ms Ireland confirmed that she sent emails in respect of specific issues that she had identified and observed in respect of the applicant.
Following re-examination I referred Ms Ireland to her email of 25 September 2013[31] and asked her what matters were “blacked out” in the email. She explained that each person that has a Child Support case has a reference number, or a CSID number, which is taken out for the purpose of privacy. I also asked her about the reference to the three contacts that are mentioned in the email. She explained that there is a need to make three contacts to an employer within 48 hours of an action item in an in-tray. If they were unable to get on to the employer then they would issue an EF1 notice, the first notice to the employer to respond with the information that is required, this is to ask the employer to set up a link where they start deducting the paying parent’s wage.
[31] Ibid at p. 97.
SPECIALIST MEDICAL EVIDENCE
Two specialists gave evidence before the Tribunal: Dr Frank Varghese, consultant psychiatrist, and Dr Greg Apel, psychiatrist.
Dr Frank Varghese, consultant psychiatrist, was called by the respondent. Dr Varghese conducted an assessment of the applicant on 10 November 2014. Dr Varghese confirmed that he initially made a report on 19 January 2015 and that he compiled another report on 27 August 2015 in response to a request for him to consider further material. Both reports were admitted into evidence.[32]
[32] Exhibit I, Report of Dr Varghese dated 19 January 2015; Exhibit J, Supplementary Report of Dr Varghese dated 27 August 2015.
Dr Varghese gave evidence about the methodology he adopted in formulating his views. The first five pages of his initial report concerns the self-report of the applicant that he gathered from the interview and his observations. Pages 6 and 7 of the report contain his provisional formulation of the diagnostic issues. This provisional formulation is solely predicated upon the applicant’s self-report. Thereafter the report contains an examination of the medical records before arriving at his ultimate conclusion. In examining those records he was searching for explanations that would confirm his opinion but more specifically he was looking for information that would contradict his opinion.
Dr Varghese stated that his provisional formulation was that the applicant was suffering from a mood disorder, which he has called major depression which had partially responded to treatment. Dr Varghese stated that he had the impression that her condition was a recurrent major depression, meaning that there had been more than one episode with a possible episode following when the applicant had glandular fever years ago and then earlier episodes from the one that he had seen and that there was dysthymic disorder in-between the episodes. Dr Varghese remarked that the aetiology of major depression is invariably multifactorial. Constitutional factors are of particular importance in major depression but other factors that can give rise to the risk of major depression are developmental adversity and personality factors, although episodes (as he said on page 7 of his report) can occur for no apparent reason or be a reflection of medical illness or evolution factors. These episodes are often precipitated by adverse life events and circumstances.
Dr Varghese remarked that the preferable issue seems to be that the applicant was desperate to have a child and her relationship with her husband of six years who was overseas. She was unable to see her husband and she had not seen him for six years. Dr Varghese considered that it was likely that issues in the workplace were a consequence of developing depression but he considered that this opinion would change if there was a finding of fact that the applicant was indeed being harassed and bullied in the workplace. Dr Varghese considered she came to experience the workplace as hostile and unsupportive because of her dire social circumstances. But he left open the possibility that she had, indeed, been harassed and bullied and, in which case, there would be an additional factor in her depression.
Dr Varghese was directed to page 6 of his report where he mentioned that it was difficult to get a coherent account as to what took place in the workplace. Dr Varghese remarked that her problem with the Department was described in a generalised way in that she stated that there was ongoing bullying and harassment “from the word go”. The only incident that she mentioned was being bullied by a particular trainer when she was doing training. He stated that otherwise if he asked her what was the problem at work she just said that there were ongoing problems with many instances of nasty people in constantly having to deal with negative people rather than specific events.
Dr Varghese was asked how his examination of the medical material impacted upon his provisional diagnosis and ultimate conclusion. Dr Varghese considered that the material supported his view that the principal clinical issue was of major depression. Dr Varghese remarked that at times some psychiatrists have suggested that the applicant had adjustment disorder, but he considered that her psychological symptoms were much more serious than adjustment disorder. Dr Varghese remarked that an adjustment disorder is a relatively mild disorder and if it was adjustment disorder it would be expected that it would be in remission six months after she left the workplace. Dr Varghese considered that this was more than an adjustment order and that a diagnosis of adjustment disorder should not be made if the patient fulfils the criteria for what is major depression.
Dr Varghese remarked that in the various symptoms that the applicant described to the general practitioner and the psychiatrist, there was a pattern of depressive symptoms presenting as somatic symptoms such as fibromyalgia which is almost always an indication of a dysthymic disorder. Dr Varghese remarked that the applicant has a good response to antidepressants, and then if, for some reason, she ceases the medication she gets a recurrence or a relapse. Dr Varghese considered that this indicates very strongly that major depression with dysthymic disorder in-between episodes is the principal clinical issue.
Dr Varghese remarked that having considered the medical records, the documentation confirmed his impression that the applicant’s problem commences with depression and then she began to experience that work was difficult. The general practitioner’s notes concern the issues about her husband and while the applicant describes herself as a high achiever, she had to struggle to reach a target at her work. Dr Varghese pointed out that what the applicant described to her doctor is what her depression does to her because what she previously did was easy, she had found to be a struggle.
Dr Varghese referred to an incident on 13 April 2012 when she found it difficult to go to work and she continued to talk about stress. She recovered after being prescribed medication and then in October 2012 she had a relapse after ceasing medication and that is when she mentioned she was being bullied by a manager.
Dr Varghese concluded that what the applicant has described is a major depression that is impacting on performance at work and a perception that because the applicant is struggling at work she was “put on diminished performance as against being put on diminished performance out of spite”. Dr Varghese remarked that the applicant then perceived the workplace as being hostile and that she had been bullied. Dr Varghese remarked that he was giving his impression after looking at the “clinical data”. However, he remarked that it could well be that she was bullied and that in a state of depression that bullying would have made her depression even worse.
Dr Varghese was referred to his second report where he referred to the medical records which record a number of complaints of physical ailments, stomach complaints, myalgia on one occasion, some diagnoses of fibromyalgia and chronic fatigue. In particular, at page 3 of his second report he remarked:[33]
I agree the depression has presented predominantly with some somatic symptoms which have been misdiagnosed as constituting fibromyalgia or chronic fatigue.
[33] Ibid at p. 3.
Dr Varghese remarked that he was in agreement with Dr Apel that there are somatic symptoms of depression. Dr Varghese said that somatic symptoms are frequently present in depression because some people when depressed do not express depression but express physical symptoms because they have difficulty expressing their emotions.
Dr Varghese in his second report refers to Dr Apel’s report and comments: "Dr Apel considers that there has been a sick work environment".[34] Dr Varghese remarked that Dr Apel has made a judgment of fact, and he may be right, but he cannot know that from being a psychiatrist.
[34] Ibid.
In cross-examination Dr Varghese confirmed that if, in fact, the applicant was indeed bullied and harassed then there might be some substance to her claim. Dr Varghese remarked that if the Tribunal was to make such a finding then the issues at work have two effects: one is to make her depression worse and moreover it may have prolonged the depression.
Dr Greg Apel, psychiatrist, was called by the applicant. Dr Apel confirmed that he had practised as a psychiatrist since 1992. The report of Dr Apel dated 1 April 2015 in which he confirmed that the applicant had “major depression ongoing” as well as the letter of instruction dated 18 December 2014 was admitted into evidence.[35] Dr Apel confirmed that the answers that he provided in the report corresponded to the questions numbered 1 to 9 in the letter of instruction. Dr Apel stated that he had prepared a report dated 1 April 2015. Dr Apel confirmed that he had seen the reports from Dr Varghese dated 19 January 2015 and 27 August 2015 as well as a statement from the applicant dated 16 June 2015. Dr Apel had also seen a statement from Ms Ireland in the T-Documents.[36]
[35] Exhibit C, Report of Dr Apel dated 1 April 2015.
[36] Exhibit A, T-Documents, T7 at p. 63.
Dr Apel was asked by counsel for the applicant to assume that the workplace events occurred in the way that Ms Ireland described in a professional and reasonable manner. He was then asked how that would affect his opinion about the contribution, if any, that the workplace made to the applicant’s condition. Dr Apel stated that he would answer the question in two parts. Dr Apel stated that there are two varying accounts with two grossly different perspectives of the situation. Dr Apel conceded that the account by Ms Ireland does come across in a much more objective fashion. Dr Apel remarked that given that Ms Ireland’s account does come across as so much more objective, then it would make him think that the applicant is depressed in her current state and perceiving things in a very negative and personalised sort of way for what Ms Ireland was straight forward managerial procedure. The respondent objected to this question. The Tribunal observed that this material is not in this report of Dr Apel or any statement that was filed before the hearing or it does not arise from anything that was previously ventilated such as during the cross-examination of Dr Varghese. The applicant did not persist in this question or require leave to commission another report.
Under cross-examination Dr Apel confirmed that he took a history from the applicant and that the salient features of that history are set out from page 1 under the Account of Events to page 3. Dr Apel confirmed that at page 4 of his report under the heading Domestic Situation there is some information about her marital situation. Dr Apel was asked about the information that he was provided about her marital arrangements. Dr Apel stated that the applicant gave him in detail the information about the workplace and he “had to forage in a detailed methodical manner” to obtain other information about matters that might be productive of stress. Dr Apel stated that the applicant was an individual who was highly focused on the workplace issues and not an individual who was reflective about other matters in her life. Dr Apel confirmed that he had read Dr Varghese’s first report in which he had placed considerable store upon her domestic situation.
When Dr Apel was cross-examined he was referred to the conclusion in his report concerning the applicant:[37]
An ongoing current issue of unhappiness in her job. She relates the passion and commitment to her work with the Child Support Agency in accumulating good skills at this, of becoming stressed and decompensating in the setting of an inclement work environment.
[37] Ibid.
Dr Apel was asked about the fact that the words that he chose do not reflect the description of the applicant which she gives at the workplace is that it was an incredibly toxic environment. Dr Apel remarked that he used the word “inclement’ to refer to an environment that she did not find welcoming.
It was put to Dr Apel that the employment of the applicant had not met the threshold of having contributed in a significant degree to any psychiatric health issues. Dr Apel replied: “I readily present a list of the contributing factors but just how you weigh them up is difficult to say”. Dr Apel recognised that the applicant carries significant vulnerability factors both from her past and her current situation being alone but she also was an individual who had coped fairly well in the world until this point so he found the degree of her decompensation to be remarkable. Dr Apel also recognised that she had been self-employed as a marketing manager of major organisations telephone sales which is not an easy position to hold. She is an individual of some resiliency who had demonstrated her resiliency up until her mid-thirties or so until she joined the Department. Dr Apel remarked that it is not as if she is someone who is never been in love before and is a person of the world and has had de facto relationships in the past. Dr Apel remarked that he put some weight on the workplace issues, or her perception of them “for whatever objective facts were there, were that those factors - there’s positives and strengths in her life as well and the fact that she had decompensated at this time”. Dr Apel agreed that these expressions of opinion are predicated upon her self-report to him.
CONSIDERATION
There is a consensus of specialist opinion from both Dr Apel and Dr Varghese that the applicant has a major depression condition: both specialists agree that there are somatic symptoms of depression. There is, however, a difference of professional opinion as to whether the applicant’s employment has contributed to her depressive disorder.
Dr Varghese considers that the applicant has a mood disorder which he has called depression and her condition was a recurrent major depression which has partially responded to treatment. I rely upon the opinion of Dr Varghese who considered that it was likely that issues in the workplace were a consequence of her depression condition.
I do not find that the condition of the applicant is work related. I prefer the explanation of Dr Varghese who recognised that her condition would mean that her work would be difficult. The contrary opinion of Dr Apel that workplace factors are significant causes of her condition is based on self-report of the applicant. Dr Apel frankly recognised that how contributing factors are weighted is difficult to say.
Dr Varghese has presented a fair report in recognising the possibility that there might be some substance to her claim if the Tribunal had found as a fact that the applicant had been bullied. It was fair for him to take account of this possibility having regard to the fact that the applicant had informed him that there was bullying and harassment “from the word go”.
The letter of instruction asked Dr Varghese to provide details of any specific incidents reported by the applicant during the course of her employment. The applicant did not nominate the events of 11 October 2012 and 4 October 2013 but made only generalised assertions of bullying and harassment except for an incident with a trainer that has not been referred to in the applicant’s statement of facts, issue and contentions. However, after my review of the evidence I cannot make a finding that the applicant had been bullied or harassed at the workplace.
I do not consider that the incidents on 11 October 2012 and 4 October 2013 could be regarded in any way as bullying and harassment.
In cross-examination Ms Ireland was taken to the event of 11 October 2012 and she gave an explanation of her incident that was unremarkable; certainly as a supervisor she has a duty to ensure that an employee had a meal break after working for five hours.
The incident on 4 October 2013 could not be regarded as bullying as it was legitimate for Ms Ireland to ascertain why the applicant was away from the workplace for an extended period of time. The account of the incident of Ms Ireland was discussed in her evidence in chief of Ms Ireland and her account was not challenged. I accept the account of Ms Ireland. There are no contemporaneous medical notes from this time even though the applicant had regularly visited her doctor when she had ailments.
Prior to the incident on 4 October 2013 the applicant had visited her doctor on 30 September 2013 when she was distressed. The foremost matter that she then raised was the absence of her husband overseas and the difficulty in bringing him into Australia. On 30 September 2013 the applicant did tell her doctor that she had a hard time at work with a bully boss, when the applicant was being questioned about this entry in the medical records she did not demur to the proposition that an email of 25 September 2013 reminded her to complete her work in a timely fashion.
There is no other incident such as in May 2012 that could be regarded as bullying or harassment.
I do not consider that the emails that the applicant received at the workplace could be regarded as harassment. When those emails were shown to the applicant during the hearing she certainly did not regard them to be harassing in nature. It would be unfair for this Tribunal to make a finding of harassment at the workplace when no such allegations of harassment had been put to the Ms Ireland. Dr Apel regarded the account by Ms Ireland as coming across in an objective fashion: indeed he referred to “straight forward managerial procedure”.
While the applicant had asserted that Ms Ireland has not given her support at the workplace, it is apparent from the evidence of Ms Ireland that this certainly was not the case. Indeed she had put in place support mechanisms to assist the applicant who she recognised had difficulties caused by the absence of her husband overseas for six years.
I rely upon the report of Dr Varghese who has produced a comprehensive report which fairly assesses the condition of the applicant. I do not consider that the evidence supports a conclusion that her depression condition was contributed to or aggravated in a significant degree by her employment.
The case of Wiegand v Comcare [2002] FCA 1462 was raised in the submissions of the applicant lodged after the hearing. That case can be distinguished from this present case as I do not consider that the condition of the applicant has been significantly caused or aggravated by an incident at the workplace.
As I have not found that the incidents at the workplace have contributed to or aggravated the condition of the applicant in any significant degree, it is not necessary for me to consider the “reasonable administrative action” exclusion which was raised in the applicant’s statement of facts issues and contentions in respect of the events of 4 October 2013. However, I make the finding that the actions of Ms Ireland on that day were taken in a reasonable manner and her account of what occurred on that day was quite properly not challenged.
I do not accept the account of the applicant that on that day Ms Ireland was standing over her with her hands on her hips or made remarks such as “in the room now”: no such assertions were put to Ms Ireland. Similarly the assertion of the applicant that her team leader “yelled” at her at any time was never put to Ms Ireland. I do not consider that this had occurred.
While the applicant’s statement of facts issues and contentions do not refer to the email that Ms Ireland sent on 25 September 2013, I consider that the actions of Ms Ireland in sending that email was taken in a reasonable manner. The email required the applicant to give priority to linking referrals and she had in her evidence mentioned the importance of completing such work in a timely manner. In her evidence she explained the need for sending that particular email.
The facts of the case of Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, which is the only case which is cited in the applicant’s statement of facts issues and contentions, are quite different from this present case as the psychiatric disorder in that case was certainly contributed to by actions at the workplace.
DECISION
I affirm the decision under review.
I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ................................[sgd]........................................
Associate
Dated 7 June 2016
Date(s) of hearing 14-15 September 2015; 21 October 2015 Date final submissions received 9 December 2015 Counsel for the Applicant Mr M Black Solicitors for the Applicant Mr A Ghaleb, Slater and Gordon Lawyers Counsel for the Respondent Mr C Clark Solicitors for the Respondent Mr A Burgess, Sparke Helmore Lawyers
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