Cawthorne and Comcare (Compensation)
[2016] AATA 285
•4 May 2016
Cawthorne and Comcare (Compensation) [2016] AATA 285 (4 May 2016)
Division
General Division
File Number(s)
2015/1091
Re
Donald Cawthorne
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 4 May 2016 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Ms N Isenberg, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – whether Applicant suffered disease –whether Applicant suffered injury – adjustment reaction with anxious mood – workplace harassment and bullying – reasonable administrative action – whether counselling action reasonable administrative action – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Martin v Comcare [2015] FCAFC 169
REASONS FOR DECISION
Ms N Isenberg, Senior Member
4 May 2016
NATURE OF THE APPLICATION
This application relates to a claim for acceptance of liability to pay compensation for an "injury" under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"). The Applicant made a claim dated 11 September 2014 for "work related anxiety & depression". On 10 November 2014, the Respondent issued a Determination denying liability for a condition described as "adjustment reaction with anxious mood" on the basis that the claim fell within the exclusionary provisions of s 5A of the SRC Act. That determination was affirmed on reconsideration. The Applicant now seeks review by this Tribunal.
ISSUES
Whether the Applicant suffered an ailment or the aggravation of an ailment that was contributed to, to a significant degree by his employment, such that it comes within the definition of 'disease' in s 5B of the SRC Act?
If the Applicant suffered from a disease, whether that disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant's employment for the purposes of the definition of 'injury' in s 5A of the SRC Act?
If the Applicant suffered from an injury, does that injury create a liability for Comcare to pay compensation under s 14 of the SRC Act?
BACKGROUND
In early 2005 the Applicant commenced employment with the Department of Foreign Affairs and Trade (DFAT) in the Sydney Passport Office.
From reasonably early in his career there the Applicant had a number of disagreements or misunderstandings with other officers, which he regarded as bullying or harassment. From 2011 he was the recipient of explicit emails and allegations of homosexuality. There was a disagreement with GM. On 4 September 2014 the Applicant had a telephone conversation with Ms Moores, Assistant Secretary – Passport Business Improvement and Integrity Branch. Following that conversation, the Applicant, after a time, left work and the next day consulted a general practitioner, Dr Sara Guirgis who diagnosed him as suffering from anxiety and depression.
The Respondent conceded that the Applicant suffered from an adjustment disorder with anxious mood, but that the resultant incapacity for work was only from 4 September 2014, and no earlier. The Respondent further contended that the conversation with Ms Moores was counselling and, as such, was reasonable administrative action, taken in a reasonable manner in respect of the Applicant's employment. In the alternative, the Respondent submitted, the actions of Ms Moores on 4 September 2014 were actions done in connection with reasonable counselling action, and, as a result, the disease suffered by the Applicant was suffered as a result of the reasonable administrative action of the employer, reasonably undertaken in respect of the Applicant's employment.
RELEVANT LEGISLATION
8. Subsection 14(1) of the SRC Act provides:
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.
In subsection 5A(1) injury is defined to mean:
(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.
Relevantly, s 5A(2) provides that for the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment and anything reasonably done in connection with such an action.
Section 7(4) of the SRC Act deems the date of injury to be when the employee first sought medical treatment or the condition first resulted in incapacity for work or impairment of the employee.
THE EVIDENCE
The parties agreed that the Applicant’s interaction with Ms Moores on 4 September 2014 was the crux of the matter.
Nonetheless, it is useful to set out in summary form the Applicant’s general complaints about the work environment. These provide some context to the events of 4 September 2014, and are largely undisputed.
The Applicant had a heavy work load and, in 2011 he received the assistance of another officer – RB. From that time onwards, the Applicant received emails circulated by TB of an explicit nature, including alleging he was in a homosexual relationship with RB. The Applicant described the emails as “disgusting” and was deeply offended by the allegations. He made no complaint.
In November 2011, the Applicant and others attended a dinner of the "5 Nations Anti-Fraud" group (“the 5 Nations meeting”). A few days later the Applicant and others received an email from TB regarding “name calling and personal attacks” with respect to SB. The Applicant said SB told him that he had been told by another DFAT officer, KE, that the Applicant made offensive remarks about him (SB) and that other staff had complained to TB. Shortly after, the Applicant sent an email to all staff who had been sent TB’s email, denying that he had made offensive remarks, even though he does not appear to have been named in TB’s email.
On Friday 2 August 2013, the Applicant received an email from GM requesting that he arrange meetings with stakeholders for the following Wednesday. A short time later, the Applicant replied seeking to postpone the meeting until the following week because the Monday was a public holiday and he was approved to take “time off in lieu” on the Tuesday, and it was also short notice to arrange a meeting with all the stakeholders. GM told him that the week after was no good for him. The Applicant replied that he would make some calls and check. There appears to have been a telephone call in which the Applicant again sought to postpone the meeting.GM replied to the Applicant to the effect that it was his perception that the Applicant could not be bothered to organize the meetings.The Applicant reported this incident to TB and advised that he felt "bullied", and emailed GM that he did not appreciate the insinuation that he could not be bothered.
In early to mid-2014, the Applicant had conversations with GM in which he, GM, was said to have been critical of the Applicant for “replying to a letter addressed to the Assistant Secretary”. On 17 June 2014, GM sent an email to a number of staff advising the procedure to follow in two circumstances, one of which was if a letter is received which is addressed to an APO Executive. Following this, the Applicant emailed GM advising he did in fact "forward the letter to the Director, who at the time was the Acting (Assistant Secretary)". GM emailed the Applicant that he should “get over it” and that what he had sent around was a reminder to everyone and didn't single the Applicant out. The Applicant then emailed TB advising that he considered GM’s treatment of him was "harassment and bullying". When TB informed the Applicant by email of 18 June 2014 that, based on the email, he did not consider GM’s conduct to constitute bullying, the Applicant forwarded the email exchange to Ms Moores.
Ms Moores telephoned the Applicant on 19 June 2014. He told her that he felt bullied and harassed and that he felt GM’s behaviour was affecting his health and made him feel depressed. During the course of the conversation, it appears from the email of the same date, the Applicant was provided with a contact for support and it was agreed he would consult an Employee Assistant Program (EAP) counsellor.
On the same day, Ms Moores made a file note in which she stated:
At approx. 2.30pm on 18 June 2014, I spoke to [GM].
I made the following points:
·I had received a complaint from Don Cawthorne about an email [GM] had sent him earlier that day.
·I told [GM] that the tone of one sentence in the email was discourteous and not appropriate for use with a colleague. It was important that we all treat each other with respect.
On 23 June 2014, the Applicant met with an EAP Counsellor, Ms Buchanan and informed Ms Moores that he had done so. He reported that the counsellor had said he had a “health issue” caused by work-related issues.
On 28 July 2014, Ms Moores, who was Canberra-based, went to the Sydney office and met with the Applicant. They discussed the Applicant’s history with GM, including the Applicant’s allegation that at a NSW Police meeting in 2013 GM was drunk. During the meeting with Ms Moores, the Applicant asked her whether GM’s contract (which was due to end in October 2014) was being extended and Ms Moores told him that it was not. The Applicant said that he told her if GM was no longer around, then he believed “the problem” would resolve itself.
On 31 July 2014, GM sought some input on an issue from the Applicant. In responding, the Applicant wrote: “I thought it was a simple exercise, but you sure know how to make it difficult”.
On 27 August 2014, GM sent an email to RB advising him about what the Applicant described as "a very serious matter".The Applicant was not included in the email group and, on 28 August 2014, when he became aware of this email and raised it with GM, GM replied: "…I inadvertently lefty (sic) you off”. The Applicant replied to GM, with a copy to RB and Ms Moores: "I find that hard to believe, just another example of harassment and bullying.''
On 29 August 2014, GM complained by email to Ms Moores (copy to TB) about the Applicant, in particular the Applicant’s contention that GM had deliberately left him off the email group.
The Applicant said that the events of August 2013 had “sickened” him and he “felt disgusted”. Notwithstanding his “depression”, he did not seek medical treatment.
4 SEPTEMBER 2014
Ms Moores telephoned the Applicant at 10.40 am in relation to the complaint she had received from GM about the emails the Applicant had sent to GM on 31 July 2014 and 28 August 2014. The Applicant said the conversation came “out of the blue”.
In his evidence the Applicant said, for the first time, that he was afraid of Ms Moores because on a previous visit to Sydney he had raised with her a policy of the Department which he claimed facilitated fraud. He said that on that occasion Ms Moores “took umbrage” and alleged he was calling all the investigators fraudsters. In her evidence Ms Moores said that they had had a “robust discussion” in which she said she did not agree with the Applicant’s claim and that it was not appropriate for him to “cast aspersions” on the whole organisation. She said she could not recall her own tone of voice but the Applicant had become agitated.
When asked in cross-examination if a face-to-face interview might have been more appropriate, Ms Moores said she already knew the Applicant was seeking EAP counselling. She had received no information from any medical expert that he was mentally ill.
The Applicant said he “took umbrage” at Ms Moores pursuing GM’s complaint. In her evidence Ms Moores said that she owed a duty of care to GM and, similarly in respect of the Applicant’s complaints about GM, a duty of care to raise those matters with GM, as had occurred.
Ms Moores prepared a file note of the conversation two hours after its conclusion, and this formed the basis of her written and oral evidence before me. The Applicant conceded that he did not make a contemporaneous file note, even though he had claimed in correspondence with the compensation decision-maker on 2 November 2014 that he had. He said in his evidence that he had been too upset at the time to make a file note. He had, however, provided a very detailed statement in support of his compensation claim made in early-mid September 2014.
Ms Moores said in her evidence that she had hoped to arrange mediation between GM and the Applicant. The conversation went so badly that she did not even raise that possibility before she terminated the conversation.
Ms Moores told the Applicant that she considered his 31 July 2014 email to GM to have been “gratuitously insulting”. The Applicant did not agree with Ms Moores that the tone and language of his emails had been inappropriate. In her evidence Ms Moores said that at least three times in the conversation she sought an undertaking from the Applicant that all future dealings with GM would be conducted in a professional and courteous manner to which the Applicant responded in words to the effect that he did always communicate this way. She said after further discussion he agreed, although Ms Moores thought “less than enthusiastically”, – that in future dealings with GM he would communicate with him in a polite and professional manner.
Referring to the email of 28 August 2014 in particular, Ms Moores told the Applicant that she considered his email to have been discourteous and unprofessional. The Applicant told Ms Moores that he did not accept as truthful the explanation provided by GM that his omission of the Applicant as a recipient to a series of emails had been inadvertent.
Ms Moores said that during the discussion the Applicant asked her whether she had counselled GM in respect of complaints raised by the Applicant against GM on 18 June 2014. She replied that she had previously told him on two occasions that she had counselled GM. Although Ms Moores again confirmed that GM had been counselled, the Applicant insisted that she confirm this in writing and stated words to the effect: "if it is not in writing it never happened". Ms Moores told the Applicant that she considered the implication of his request to be that her word could not be trusted; she found his comments upsetting. Despite this, Ms Moores advised the Applicant that she would provide this written confirmation, which was subsequently provided later that day.
The Applicant also challenged her previous advice to him that GM would be leaving DFAT in October, despite having also having told him this both during their discussion on 28 July 2014 and in writing in a subsequent email. She asked the Applicant whether he was again questioning her integrity and honesty.
The Applicant’s account of the conversation was different in a number of respects. He said he told Ms Moores that if GM was offended he would apologise, whereas Ms Moores said he did not offer to apologise during the conversation, and in fact, resisted on several occasions to give an undertaking that he would in the future communicate with GM in a respectful and polite manner. Further, she said, on a number of occasions during the conversation, he denied that his behaviour had been inappropriate.
He quoted his counsellor to her that “if it isn't in writing then it hasn't happened”. She took this to mean that the Applicant did not believe her advice to him that she had not in fact counselled GM and considered this to be questioning her honesty and integrity.
The Applicant said that when he asked Ms Moores if she would confirm what she had previously told him (that GM was leaving in October), Ms Moores, he said, immediately stated "you are calling me a liar". He said he explained that he was only asking a question and was not accusing her of lying. Ms Moores, he said, repeated that he was accusing her of lying. He said he again stated that he was not and was only asking a question. Ms Moores said that it was significant that the Applicant’s characterisation of that part of the conversation omitted an earlier exchange in the conversation where the Applicant implied that she had not counselled GM. At the end of the conversation, the Applicant again questioned the advice she had previously provided him orally and in writing in relation to GM's departure date from DFAT.
The Applicant said he asked Ms Moores if she was going to take any further action in relation to GM’s attendance at the NSW Police meeting in 2013, she replied that she had received two complaints that he, the Applicant, was drunk at the 5 Nations meeting in 2011. The Applicant conceded in cross-examination that he “could have been inebriated” at the function. Ms Moores denied that the Applicant asked her if she was going to take any further action in relation to GM's attendance at the NSW Police meeting in 2013. Instead, she said, the Applicant, in response to her further request that he should treat GM with respect, raised his voice and said “so I should treat someone who gets drunk with respect, should I?”. Ms Moores understood this to refer to allegations previously raised by the Applicant that GM had attended a meeting while “hung over”, despite the Applicant not having been present at that meeting.
Ms Moores said that she understood the Applicant had himself behaved inappropriately after becoming drunk during a work function. The Applicant mistakenly took this to be a reference to his belief that work colleagues had accused him of criticising another colleague at a work event in 2011. The Applicant responded in words to the effect that it was not his fault that he had become drunk and that “others should have intervened when they could see that he was getting drunk”. In cross-examination Ms Moores said that she now regrets having raised the two reports of drunkenness. However she said it was relevant because the Applicant had claimed GM was not deserving of respect because of his drunkenness.
The Applicant alleged Ms Moores stated: "You are calling me a liar."When the Applicant attempted to clarify that he was only asking a question and was not accusing Ms Moores of lying, he said Ms Moores stated: "You are accusing me of lying". She did not think she was the first to use “liar” in the conversation. The Applicant then asked if he could be provided with written confirmation she had counselled GM. Ms Moores then said that she had received two complaints that the Applicant was drunk at the 5 Nations dinner in 2011, or words to that effect.
Ms Moores said that at all times during the telephone conversation with the Applicant she was cordial and polite and allowed him to express his views. She said in her evidence that from the outset the Applicant’s tone led her to abandon her primary objective of agreement to mediation. The Applicant said, however, that the conversation started in a cool and calm manner but escalated. He said Ms Moores raised her voiced in the middle of the conversation and, by the end, they were both angry. As to what had caused Ms Moores to raise her voice he said it was when he had asked her to put in writing that GM had been counselled, which, he said, was on the advice of the counsellor. It was then that Ms Moores accused him of calling her a liar. He said she was sarcastic when she accused him of being drunk at the 5 Nations dinner. Ms Moores described it as “a robust conversation” and agreed she became upset during the conversation.
The telephone conversation concluded at about 11.00 am. Ms Moores said she was very upset at how difficult the conversation had been.
Following the telephone conversation, the Applicant said he became ill and tearful. He went to the toilet and vomited. He had to stay in the toilet “for a long while” as he was crying. He said he felt shocked and very distressed that a matter was brought up from 2011 when no previous allegations about being drunk had been made in the intervening 3 years. However, at 11.03 am, that is, almost immediately after the telephone conversation concluded, the Applicant returned to his desk, located an email from 2011 and emailed it to his home email address. He said “it only took a second”.
At 12:34 pm that day, the Applicant sent an email to Ms Moores in respect of his mistaken belief that Ms Moores had referred during their telephone conversation to allegations the Applicant believed had been made that he had made disparaging remarks about a colleague at a work function in November 2011. The Applicant sent an email to Ms Moores in which he stated:
I am very upset that you made mention this morning of 2 complaints you received about an incident that occurred at around 10pm in November 2011 at a venue in Circular Quay, Sydney. At the time I denied that I had said anything that the person who made the complaint had alleged I said. I personally spoke with [SB] and he stated that he was surprised and embarrassed that [KE] had made the complaint without his knowledge.
I've attached part of an email sent after this occurred and [TB] sent out an email broadcasting the complaint to all in PFS.
“As this email appears to elaborate on what the matter is about, I read with great concern that the quote relayed to Don was that… ?? representative at the 5 Nations Dinner had told him that I had said that all the Australian RIMs thought that [SB] was a c***. For the record, I do not recall a conversation regarding [SB] taking place at our table (and I was not affected by alcohol nor do I recall Don making such a strong comment about [SB] in any regard."
In cross-examination he said he could not now recall if SB was mentioned by name in the course of the conversation.
Later that day, Ms Moores replied to the Applicant in relation to this email and stated:
I'd like to clarify that both of the occasions that reference was made to you and the Five Nations dinner in Sydney, the comment was about the fact that you had been drunk.
Your comments to me today in this email from you is the first time I have heard anything about an alleged comment by you about [SB].
So I was referring to that at all today but the fact that 2 people had told me that you had been drunk at an official event. Nothing more.
At 1.19 pm that day, just before he left the office, the Applicant emailed GM, copy to Ms Moores, in relation to his email to GM of 28 August 2014 and stated, inter alia: "I did not in any way mean to infer that [GM] was or is a liar and if it was taken that way I sincerely apologise". He did not apologise in respect of his email to GM dated 31 July 2014.
At 4.10 pm the same day, Ms Moores emailed the Applicant and stated:
As requested, this is to confirm, in writing, that as you requested, I counselled [GM] in relation to his email to you on 18 June.
I counselled him at 2.30pm on 18 June. I then called you at 4.50pm on 18 June to advise you that I had counselled him. I also advised you at our meeting in Sydney on 28 July that I had counselled [GM].
GM confirmed that this had occurred.
The following day, at his wife’s urging, the Applicant attended Dr Sara Guirgis.
In an email that day, the Applicant again questioned Ms Moores' assurance to him on 28 July 2014 that GM had been counselled in respect of the email he had sent to the Applicant on 2 August 2013. On 8 September 2014, Ms Moores informed him that she had asked TB to undertake the counselling of GM in respect of that complaint.
Also on 8 September 2014, Ms Moores sent an email to the Applicant in which she enquired as to his well-being. The Applicant replied by email in which he stated: "Yes I went to pieces last thursday (sic) after being accused if (sic) calling you a liar."
MEDICAL EVIDENCE
On 5 September 2014, the day after the telephone conversation with Ms Moores, the Applicant attended a GP, Dr Sara Guirgis who provided a medical certificate to the effect that the Applicant was unfit for work from 5 to 19 September 2014.
On 26 September 2014, Dr Guirgis provided a report at Comcare's request in which she wrote that the Applicant first consulted her regarding the claimed condition on 5 September 2014. As to the specific incidents causing the Applicant's condition, she wrote: “emails from [TB] and [GM] and bullying him... [indecipherable]”.
On 5 October 2014, Marcia Tsimboukis, psychologist, provided a report at Comcare's request, and diagnosed major depressive disorder. Ms Tsimboukis wrote of having her first consultation with the Applicant on 2 October 2014. He had reported experiencing in the past 18 months, panic attacks, deteriorating sleep, poor mood, fleeting self-harm, thoughts without plans or means or intent, hypervigilance and fear with communications with TB and GM.
On 21 October 2014, Dr Inglis Howe Synnott, consultant psychiatrist, provided a report at Comcare's request following an assessment of the Applicant on 20 October 2014. Dr Synnott wrote:
In my opinion, he describes previously experiencing sufficient psychological symptoms to meet the diagnostic criteria of adjustment disorder with anxiety and depressed mood – however, with the passage of time, he has improved to the point where it is now in remission; there was a recent flare up of his symptoms and this indicates residual vulnerability — but that is not the same thing as having a psychiatric condition.
It would appear the symptoms first became significant on 2 August 2013 and ebbed and flowed between then and going off work on 5 September 2014...
It is hard teasing apart the specific degree of contribution of each of the factors.
On 27 October 2014, Dr Joanna Guirgis, consultant psychiatrist, provided a report to Dr Sara Guirgis, in which she opined:
Mr Cawthorne gave a history of depressive symptoms which began in the context of significant bullying and harassment.
…
He describes suicidal ideation and thoughts of jumping off his balcony, however, cited protective factors of his wife and son.
…
Mr Cawthorne described that the workplace events reached a peak on 4 September 2014 and that following this, he was unable to work for a period of 7 weeks, due to depression and anxiety.
On 17 November 2014, Dr Ann-Marie Rees, consultant psychiatrist, provided a report at the DFAT’s request following an examination of the Applicant on 5 November 2014. Dr Rees opined:
Diagnosis is a major depressive episode and prognosis is good.
…
In my opinion, he should not be in the workplace whilst further treatment regimes are trialed and he is given the opportunity to improve with his significant symptoms of depression…
In regards to the originating complaints from the Applicant, Mr Cawthorne instructed Dr Rees that he has submitted a Comcare claim for anxiety and depression secondary to workplace bullying and harassment in recent times. He provided information about emails that he considered were harassing and inappropriate. He said the main problem was with GM and TB. He said that he’s got 100 pages of offensive emails.
On 12 May 2015, Associate Professor Michael Robertson, consultant psychiatrist, provided a report on behalf of the Applicant following an assessment of the Applicant on the same day. Associate Professor Robertson opined:
At present, Mr Cawthorne presents with a persistent depressive disorder. I suspect this is the persistence of a major depressive disorder that emerged as a consequence of the workplace bullying.
There is a guarded prognosis. I think Mr Cawthorne's clinical progress has been disappointing. Dr Rees felt there was likely a good prognosis, but I do not believe this has been borne out by the natural history of his illness. There is a significant chance that he will have persisting symptoms of depression particularly given his age, as depressive illnesses tend to become more brittle in the seventh and eighth decades.
In the absence of any developmental vulnerabilities to depression or previous established psychiatric disorder, it is clear that Mr Cawthorne developed his current psychiatric injury as a consequence of the bullying behaviour described in the above report.
Mr Cawthorne first sought treatment in August/September 2013.
…
Mr Cawthorne first experienced incapacity for employment after the problems emerging in August and September 2013.
Mr Cawthorne presents with a partial incapacity for employment. He seems to be working currently to his full capacity in light of his depressive symptoms.
On 24 February 2016 Associate Professor Robertson provided a supplementary report. There he specifically commented in relation to the telephone conversation of 4 September 2014 that it contributed materially to the Applicant’s depressive condition, as one of a number of workplace events. He described it being “precipitant” to the Applicant’s ceasing work.
The Applicant said in his evidence that he had told his solicitor, who had briefed Associate Professor Robertson, that he had had work problems since 2007 and would seek medical treatment but would not divulge the reason he was “sick” and that he needed a day off. He agreed this was not correct. He said he felt ashamed and could not tell anyone about the homophobic allegations. He said he may not have told the doctor that he was “nearly suicidal”, as was reported, but may have referred to his symptoms such as headaches, and received treatment accordingly.
The Applicant said, for example, that an attendance at his GP in August 2013 recorded as “viral infection”, was as a result of his dealings with GM. The Applicant could not recall the attendance, and thought the summonsed medical records from his usual GP may have even related to his son (also named Donald).
CONSIDERATION
The Respondent conceded that the Applicant suffered from an adjustment disorder with anxious mood. However, it contended that the resultant incapacity for work was only from 4 September 2014, and no earlier.
The Applicant said that he had undertaken EAP counselling on 23 June 2014. He told Ms Moores that the counsellor had said he had a “health issue” caused by work-related issues, but there was no other evidence about the counselling, in particular, whether the counsellor provided “medical treatment” as defined or whether there was, at that time, any incapacity for work: s 7(4) of the SRC Act. Further, I reject his contention that he had previously visited the doctor with symptoms which although described otherwise, were related to workplace issues. There was no contemporaneous medical evidence that might support this contention.
However, there was clear evidence that the Applicant first sought medical treatment on 5 September 2014, that is, the day after his discussion with Ms Moores, after which he left work, and has never returned to fulltime work. Furthermore, the evidence was that this was the first occasion, on the evidence, when his psychological condition resulted in incapacity for work or impairment.
Associate Professor Robertson recorded that the Applicant first sought treatment in August/September 2013. This is clearly incorrect, and even the Applicant does not make this claim. Associate Professor Robertson also considered the Applicant first experienced incapacity for employment after the problems emerging in August and September 2013. But, it seemed to me, in his supplementary report, he resiled from this, describing the events of 4 September 2014 as “precipitant” to the Applicant’s ceasing work. Dr Joanna Guirgis, consultant psychiatrist, recorded that Mr Cawthorne described that the workplace events “reached a peak” on 4 September 2014, and this is consistent with the present view of Associate Professor Robertson.
Dr Synnott, on the other hand recorded that it would appear the Applicant’s symptoms first became significant on 2 August 2013, but, it is clear that this was on the basis of the Applicant’s self-report.
Consequently, I find that 4 September 2014 is the deemed date of injury as that was when the Applicant’s psychological condition first resulted in his incapacity for work. He first sought medical treatment for the condition on 5 September 2014.
The ‘precipitant’ events of 4 September 2014
In Commonwealth Bank of Australia v Reeve[2012] FCAFC 21 Gray J, discussed the operation of s 5A of the SRC Act:
In this respect, it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare [2005] FCAFC 16 (2005) 87 ALD 341 at [21]- [23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.
Most recently the effect of the exclusion provisions of s 5A of the SRC Act were discussed in Martin v Comcare [2015] FCAFC 169 where Murphy J (with whom Siopis J agreed), stated in the majority judgment:
…however many separate causes of an injury may have arisen out of or in the course of an employee’s employment, if any one of those causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury.
Simply put, the exclusion in s 5A applies even though an Applicant’s condition may have had other causes.
Consequently, if I find that the Applicant’s condition was, even in part, a result of, or in connection with, reasonable administrative actiontaken in a reasonable manner in respect of his employment, his claim must fail.
From the evidence it would appear that the Applicant’s workplace was not a happy one. There was, it seems, something of what is sometimes described as a “blokey” culture. The Applicant, for whatever reason, does not, from his evidence appear to have “fitted in”. Be that as it may, he appears to have had a good relationship with RB and perhaps, at some time at least, with TB when, according to his evidence, a member of TB’s family stayed at his home. He agreed in cross-examination that he had been easily offended over the last few years and had angered easily, for example, he “took umbrage” at not being selected for an overseas trip, which was instead given to “a young girl”. Despite this, by all accounts, he had a successful career at DFAT.
Things came to a head in mid-2014 which culminated in the telephone conversation with Ms Moores on 4 September 2014. I accept that Ms Moores’ role required her to undertake counselling and that it was her plan to have the Applicant agree to mediation in an attempt to resolve the differences he had with GM. I accept that the counselling conversation was an administrative action, and that it was a reasonable undertaking in view of the deterioration of the relations between the Applicant and GM.
Was the reasonable administrative action conducted in a reasonable manner?
From the evidence, the conversation did not go well from either perspective.
The Applicant submitted that the conversation should have taken place face to face as Ms Moores was on notice from the Applicant’s report of his EAP counselling that he had a “health issue” and that it was a mental health issue. However there was no evidence prior to the conversation that the Applicant’s mental functioning was outside normal bounds; he was continuing to work well. EAP counselling is not medical treatment and there was no evidence that the Applicant claimed he had been diagnosed with a psychiatric problem and needed treatment or time off work. Nonetheless, I agree that, with the benefit of hindsight, the conversation might have had a better outcome if it had been conducted face to face.
The Applicant also submitted that, as it was clear to Ms Moores from the outset that the Applicant was agitated, she should have terminated the conversation, especially when it was clear to her that her aim of reaching agreement to participate in mediation was going to fail. However, in my view the evidence supports a finding that she terminated the conversation at an appropriate time because it was not getting anywhere. I note too, that it was open to the Applicant to terminate the conversation at any time.
It might also have been preferable had some aspects of the conversation not been raised, for example the Applicant’s allegation that GM was not deserving of respect because he was a drunkard. Similarly, Ms Moores need not have raised, at that time, that the Applicant had himself reportedly been drunk, but I accept she did so in the context of the Applicant’s assertion about GM.
It is difficult to say how the conversation escalated. Ms Moores said that from the outset the Applicant was “agitated”. Her evidence was to the effect that she may have matched his tone of voice, whereas the Applicant said that it was Ms Moores who first raised her voice. I consider Ms Moores’ contemporaneous account is to be preferred to the Applicant’s. Her version was thorough, but she, properly in my view, conceded that she could not be sure it was verbatim. I consider the Applicant’s later account, in the context of his claim, was less reliable, especially as he had made no contemporaneous notes notwithstanding his presumed understanding of the importance of doing so, given his role as an investigator. I did not find his evidence before me to lead me to a different view. For example, he gave evidence of regularly seeing a doctor but now seeks to attribute his symptoms to work stress. Similarly, I find his conduct immediately following the conversation with Ms Moores – of returning to his desk and locating old emails and crafting further emails to be inconsistent with his contention in his evidence of having “mentally exploded” and retiring “for a long time” to the bathroom where he vomited and needed to compose himself, and that he was too upset to make a file note.
Ms Moores was, on her own evidence, offended that, in demanding she confirm in writing information which she had previously provided, the Applicant had called her integrity into question. I accept the Applicant’s general submission that even if the person being counselled “loses it”, it is undesirable that the counsellor does too. However, I do not accept that that this is a proper characterisation of Ms Moores’ response to the Applicant’s allegations. The Applicant said that he did not intend to call her “a liar”, but to me there is no other inference, even on his own version of the conversation. While there was a dispute as to who had first used the word “liar”, Ms Moores was, in my view, entitled to use that word in circumstances where the Applicant was calling her integrity into account. Again, with the benefit of hindsight it might have been preferable that Ms Moores had not used that term.
In Comcare v Martinez (No 2) [2013] FCA 439 (“Martinez”) Robertson J stated at [81]:
This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
I have referred above to a number of aspects of the conversation which, with the benefit of hindsight, might have been done differently. Applying Martinez however, I accept though that the reasonable administrative action was undertaken in a reasonable manner.
I have found that the telephone conversation between the Applicant and Ms Moores was a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. Accordingly, the Applicant’s condition is excluded from the definition of “injury” in s 5A of the SRC Act. Consequently, Comcare is not liable to pay compensation in accordance with s14 of the SRC Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .................................[sgd].......................................
Associate
Dated 4 May 2016
Date(s) of hearing 25 and 26 February 2016 Counsel for the Applicant John Mrsic Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent John Wallace Solicitors for the Respondent Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Statutory Construction
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Remedies
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