CCTS and Comcare (Compensation) - [2023] AATA 60

CCTS and Comcare (Compensation) [2023] AATA 60 (24 January 2023)
Division:GENERAL DIVISION

File Number(s): 2021/7190
Re:CCTS
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:24 January 2023
Place:Sydney

The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
WORKERS’ COMPENSATION – whether the Applicant suffered an ailment or an aggravation of an injury for the purposes of section 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 resulting in disease as defined by section 5B(1)(b) of the Act – whether the Applicant’s employment contributed, to a significant degree, the aggravation of the ailment such that she has a ‘disease’ under section 5B(1) of the Safety, Rehabilitation and Compensation Act 1988 – whether employer’s conduct amounted to reasonable administrative action – whether any reasonable administrative action was taken in a reasonable manner – whether any injury is excluded for being a result of reasonable administrative action - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)
Cases
Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Drenth v Comcare [2011] AATA 582
Hollis v Comcare [2017] FCA 558
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
Su v Comcare [2011] AATA 934
Vo v Comcare [2005] AATA 773
Von Stieglitz v Comcare [2010] AATA 263
REASONS FOR DECISION
Senior Member Dr Linda Kirk
24 January 2023
INTRODUCTION

CCTS (‘the Applicant’) was born in 1996.[1] She commenced employment with the Australian Border Force (‘the ABF’) in the Department of Home Affairs in October 2018.[2] From October 2019, she was employed as an APS3 Officer in Aviation Traveller, New South Wales working in airport operations at the Sydney International Terminal.[3]
[1] Exhibit R1, T25, 180.
[2] Transcript of proceedings, 9 August 2022, 5.
[3] Ibid at 45.
On 3 June 2021, the Applicant lodged a claim for workers’ compensation in respect of ‘major depression and anxiety’ which she claimed to have sustained as a result of a series of workplace incidents on 5 and 25 December 2020 and 9 January 2021.[4] The Applicant reported that she first noticed her symptoms on 5 December 2020, and first sought medical treatment on 11 January 2021.[5]
[4] Exhibit R1, T25, 7-18.
[5] Ibid at 14.
By determination dated 23 August 2021, Comcare (‘the Respondent’) denied liability under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (‘the SRC Act’) in respect of ‘adjustment disorder with mixed anxiety and depressed mood’ sustained by the Applicant on 11 January 2021 (‘the Determination’).[6]
[6] Exhibit R1, T28, 196-199.
On 24 August 2021, the Applicant requested reconsideration of the Determination. The Applicant stated that she was bullied and harassed when made to work with officers with whom she did not get along, and she felt unsupported in light of the personal issues and circumstances she had been experiencing.[7]
[7] Exhibit R1, T30, 203-220.
On 1 October 2021, the Respondent affirmed the Determination (‘the Reviewable Decision’).[8] The decision-maker found that the Applicant was suffering from an Adjustment Disorder with mixed anxiety and depressed mood, which was significantly contributed to by her employment following a meeting on 9 January 2021 which discussed the Applicant’s wellbeing and performance. However, that meeting constituted reasonable administrative action pursuant to section 5A(2) of the SRC Act, and thus is excluded from liability under section 5A(1) of the SRC Act.
[8] Exhibit R1, T32, 223-231.
On 1 October 2021, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[9]
[9] Exhibit R1, T1, 1-5.
The review application was heard by the Tribunal at a hearing conducted by videoconference on 9, 10 and 11 August 2022. The following witnesses gave oral evidence at the hearing:
·The Applicant
·Emily Hay
·Stephen Mercer
·David Sealey
·Clodelia (Del) Carrero
·Dr Christopher Cocks, Consultant Psychiatrist
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 26 July 2022;
·Section 37 T-Documents (‘T-documents’) lodged on 10 November 2021 (Exhibit R1); and
·Bundle of agreed documents lodged on 2 August 2022 (Exhibit R2).
LEGISLATIVE FRAMEWORK
The entitlement to compensation for an employee under the SRC Act is conferred by section 14(1) which provides that the Respondent 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.
(emphasis added)
‘Injury’ is defined in section 5A of the SRC Act:
(1)…
(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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in subsection (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
A ‘disease’ is defined in section 5B of the SRC Act to mean, so far as this case is concerned:
(1)…
(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.
(2)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.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
An ‘ailment’ is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ includes acceleration or recurrence.
ISSUES FOR DETERMINATION
The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under section 14 of the SRC Act and specifically:
1)what is the diagnosis and date of onset of the Applicant’s condition?
2)is the Applicant’s condition an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in section 4 of the SRC Act?
3)was this ailment or aggravation of an ailment contributed to, to a significant degree, by the Applicant’s employment with the ABF, such that she has a ‘disease’ under section 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in section 5A(1)(a)?
4)whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner by the ABF within the meaning of section 5A(2), such that it is excluded from the definition of ‘injury’ in section 5A(1) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Early years
The Applicant was born in Sydney in 1996. She is the youngest of four children and has an older sister and two older brothers. She attended Tahmoor Public School and then went to Magdalene High School, a private catholic school. After term one, she moved to Picton High School where she completed her education. She was an academic student who was always in the top two classes.[10] The Applicant is reported to have been a shy child who worried about embarrassing herself. She experienced separation anxiety or “high trait anxiety”.[11] She is reported to have suffered from anxiety in secondary school and would go to the sickbay with nausea. She also experienced performance anxiety and suffered from migraines.[12]
[10] Exhibit R2, R1, 78.
[11] Exhibit R2, R2, 96.
[12] Exhibit R2, R2, 96.
The Applicant was prescribed an anti-depressant by her general practitioner in August 2013. She claims that she did not have the script filled and therefore did not take the medication. She had been getting upset and crying, but she believes this was an effect of taking the contraceptive pill.[13]
Education and employment
On completion of her High School Certificate, the Applicant completed a Bachelor of Policing through the University of Western Sydney over a three-year period. She then completed a Certificate in Workforce Essentials through Charles Sturt University. She withdrew from the process of becoming a police officer and did not attend the New South Wales Policy Academy in Goulburn to complete the final stage of her studies as she was concerned about the culture within the police force.
[13] Transcript of proceedings, 10 August 2022, 121.
The Applicant applied for a position with the ABF and as a Correctional Officer with Juvenile Justice. She obtained both positions and worked full-time with the ABF and as a casual Detention Officer at Reiby Juvenile Justice Centre. She transferred to working with the ABF full-time in 2018 and worked six days per week.[14] She commenced working in airport operations at the Sydney International Terminal at the end of October 2019. Her duties involved conducting passenger processing and enforcing customs and migration legislation at the border.
[14] Exhibit R2, R1, 78.
Relationship with father
The Applicant is reported to have described her father as “scary”.[15] He was a very jealous man, and the Applicant stated she would sometimes be ‘walking on eggshells’.[16] In her oral evidence, the Applicant stated that her father was abusive and controlling towards her mother, but not with the children. He had addiction issues and a complicated relationship with her mother, but these were ‘not all the time’.[17] She told the Tribunal that she did not often fight with her father during her childhood.[18]
[15] Exhibit R2, R2, 96.
[16] Exhibit R2, R2, 96.
[17] Transcript of proceedings, 9 August 2022, 8.
[18] Ibid, 9.
The Applicant’s father suffered from depression, and he had been prescribed anti-depressant medication for a number of years. He committed suicide in December 2019 when the family was evacuated from their home due to the bushfire threat. He was struggling through a complex workers’ compensation claim where he alleged bullying and harassment from his employer. He remained behind when the family evacuated the home, and he hung himself in the bathroom. The Applicant’s mother and brother discovered his body when they were allowed access to the family home. The Applicant told the Tribunal that her father’s death was a devastating loss.[19]
[19] Ibid, 6.
It is reported that the Applicant and her father argued in the week prior to his death when she confronted him after discovering his extramarital affair. The Applicant’s father accused her of being a ‘troublemaker’ and told her that everything in the family was her fault. It is documented that the Applicant felt angry and disclosed to her mother an email to her father in which she stated, “he was dead to me”.[20] At the hearing, the Applicant confirmed that the confrontation between her and her father did occur and the content of the email.[21]
[20] Exhibit R2, R2, 97.
[21] Transcript of proceedings, 9.
The Applicant returned to work three days after her father passed away in December 2019. She told the Tribunal that she returned to work ‘in order to be in a safe place’.[22] It was very emotional at home and going to work was ‘kind of a normality’ for her.[23] Her work environment was ‘very supportive at the time’ and was a ‘safe and happy place’ for her to be.[24] She denied that she returned to work to distract herself from feelings of grief and anger.[25]
[22] Ibid, 6.
[23] Ibid.
[24] Ibid, 7.
[25] Ibid, 6.
The Applicant saw her GP, Dr Malak Makarious, in mid-January 2020, about three weeks after her father died . She told him that she was feeling okay and was dealing with her father’s death in her own way. He strongly suggested she have counselling with a psychologist, but she did not feel that she needed it.[26] The Applicant was urged again by Dr Makarious in October 2020 to consider psychological counselling.[27] She told the Tribunal that, in the circumstances, any reasonable doctor would make this recommendation.[28]
[26] Transcript of proceedings, 9 August 2022, 10.
[27] Ibid, 14.
[28] Ibid.
Restructure
In around August 2020, due to reduced passenger numbers in the airport, the number of units was reduced from five to four. As a consequence, the Applicant’s support at work changed as prior to this she was working with colleagues all of whom she regarded as friends.[29] However at this time, she did not feel that she required much support, so she did not need to raise the change in support with her supervisors.[30]
[29] Ibid, 11.
[30] Ibid, 13.
Workplace incidents
On 27 November 2020, the Applicant’s mother phoned her at work in an extremely distressed state and advised her that her sister had lost her baby at 22 weeks’ gestation. The Applicant left work mid-shift as she was very upset, and she took three days of bereavement leave. The Applicant described the loss of her sister’s baby as devastating for the family. She denied that this triggered the decline in her mental health, as grief and bereavement are not mental health disorders.[31]
[31] Ibid, 16.
5 December 2020
The Applicant returned to work from bereavement leave on 5 December 2020. She told the Tribunal that she had not been expected to return to work that day, and therefore she had not been placed on the daily deployment sheet.[32] Her shift commenced at 1:45pm. She spoke to an APS6 supervisor, Andrew Logan, and asked whether she could work in the ‘Yankee’ role and was told she could do so. At approximately 4:30pm, another APS5 supervisor, Gulay Erener, approached the Applicant in the mess/amenities room when she was on a break. She told the Applicant that she had been expected in Outwards an hour ago.[33] She said to the Applicant ‘you need to go upstairs right now, Josephine has been waiting for you’. The Applicant replied, ‘no one has told me this and I would really prefer to not go up there today, not today on my first day back’. Ms Erener asked ‘why?’, and the Applicant responded, ‘I can’t work with Josephine today, I really don’t think it will be good for me to go up there’. A fellow colleague then advised the Applicant that she could work in his area, and he would send another officer to Outwards.[34]
[32] Transcript of proceedings, 9 August 2022. 50.
[33] Ibid, 17.
[34] Exhibit R1, T3, 14.
Later during her shift, the Applicant was instructed to report to her Inspector, Emily Hay. She attended Ms Hay’s office and they had a conversation about the Applicant’s behaviour. The Applicant stated that Ms Hay told her that she should not have initiated a private conversation with the supervisor (Ms Erener) in the mess room with fellow colleagues present. She replied, ‘I am not the supervisor, they came into the lunchroom with fellow colleagues and initiated the conversation, it is their role to initiate a private conversation and not conduct it in the lunchroom, that is not my job’. The Applicant became very upset and emotional during this conversation to the point of crying, as she ‘felt there was no support provided to help [her] return to work after experiencing a tragedy within [her] family.’ She ‘felt as though [she] was receiving all the blame for a conversation that could have been handled differently by the supervisor.’[35]
[35] Ibid.
During cross-examination, the Applicant agreed that during their meeting, Ms Hay advised her that the Employee Assistance Program (EAP) was available to her and recommended she access it. She said that she told Ms Hay that she did not need assistance and that a counsellor could not help. She told Ms Hay that she ‘didn’t want to be medicated’ as she was ‘kind of insinuating’ that she should be. She agreed that Ms Hay asked her what roles she would like to do, and she said ‘Juliette’ as it was a role that she enjoyed.[36]
[36] Transcript of proceedings, 9 August 2022, 19.
Following the meeting, the Applicant was still extremely upset and emotional, and she called her mother to talk to her about what had just happened. The Applicant subsequently advised Ms Hay that she did not think she was ‘emotionally stable to come to work for the next two days and [she] would like to take leave.’[37] She told Ms Hay that she thought she was ‘going to get a bit more support’, and that she should have a few more days off because ‘this isn’t the environment that is supportive for me.’[38] She was approved by Ms Hay to take two days annual leave.[39]
[37] Exhibit R1, T3, 14.
[38] Transcript of proceedings, 9 August 2022, 20.
[39] Exhibit R1, T3. 14.
At the hearing, the Applicant confirmed that this interaction with Ms Erener and the meeting with Ms Hay were the first incidents that had an impact on her injury.[40]
[40] Transcript of proceedings, 9 August 2022, 24.
25 December 2020
On 24 December 2020, the Applicant was selected to act in a higher position as an APS5 during her shift. She completed all tasks and managed her fellow colleagues in her team that day and was praised for her performance by her supervisor, Stephen Mercer. She was meant to act up the next day on 25 December 2020, although she was attending work three hours after the shift had started at 5pm instead of 1:45pm so that she could have Christmas lunch with her family. She advised Mr Mercer that she was happy for someone else to be put into the higher role ‘to make the day easier’.[41]
[41] Exhibit R1, T3, 14.
On 25 December 2020, the Applicant arrived at work at about 3:30pm. She went to find her team leader, Josephine Gayet to see what tasks she had been allocated. When she received her tasks, she noticed that there was a point in the shift where she was going to have to be at two places at once. She advised the team leader that she was unable to do both tasks as she could not get to both with the time constraints. She advised her that she would do the clearance task and they just need to find a replacement for health. She then went and sat down in the lunchroom with her fellow colleagues. A couple minutes later Ms Gayet, who was sitting approximately five metres away from her, called over to another team leader and said ‘[CCTS] is a sook, she is just sooking about this’. She said this ‘in a very loud voice and quite negative tone in front of everyone in the lunchroom with all [her] fellow colleagues.’ The Applicant replied, ‘I’m not sooking, I can’t physically be in two places at once and the fact that your friends have 2 jobs and the rest of us 5 jobs is ridiculous’.[42] At this point, the Applicant was getting upset, but she denied she swore at Ms Gayet. She agreed she said, ‘it’s the anniversary of my dad passing away. This is the first Christmas, yes, I’m going home.’[43]
[42] Exhibit R1, T3, 14.
[43] Transcript of proceedings, 9 August 2022, 29.

Approximately 45 minutes later, the Applicant had a conversation with the other team leader about ‘how unprofessional that was and that it is not acceptable.’ She then became ‘extremely upset and quite agitated to the point of tears.’ The Applicant went into the change room to collect her belongings, and then went into the supervisor’s area and asked if she could speak with one of the supervisors, Stephen Mercer. She explained to him what had happened and said that she was too distressed to remain at work. She found it ‘extremely embarrassing and hurtful to have that happen and have [her] work ethic torn down to a fellow colleague and in front of all [her] fellow colleagues while [she] was in the room.’ She told Mr Mercer she ‘didn’t want to be there’ by which she meant with the ABF, and he said that they could transfer her out.[44] She explained to the Tribunal ‘… after the kind of support that I’d received in the responses from the employees … I didn’t think I wanted to be in a culture like that anymore.’[45]
[44] Ibid.
[45] Ibid.
The Applicant departed work at 5:00pm and spoke on the phone with her mother to help calm her down to drive home.[46] After leaving work, the Applicant took two weeks of planned annual leave.
[46] Exhibit R1, T3, 14.
9 January 2021
The Applicant returned from leave on 9 January 2021. She was ‘extremely anxious and nervous to return to work’.[47] She commenced her shift at 4:45am, and at about 9:00am she was told she was required to see her supervisor, Mr Mercer. He told her he wanted to have a meeting to conduct a welfare check and raise some other issues. The Applicant ‘instantly became quite distressed and anxious about this.’[48] He asked whether she wanted a support person and she said ‘no’, as she did not ‘want more people knowing kind (sic) of [her] tragedies.’ The meeting commenced, and they were joined by another supervisor, Ms Carrero who attended as a witness/independent support person. The meeting began with a welfare check and they said they felt that she was ‘not okay.’ She ‘became extremely upset and very anxious [and] could not stop shaking and crying.’ She ‘was very hurt and upset about the fact they wanted to raise issues.’[49] They then began raising the other issues which were about her ‘not being reliable’ as she had left work on two occasions.[50] She was advised that discussions had been had about her with Emily Hay, and that she requested the meeting be held on her return from leave.. The Applicant claims that they suggested that she should not be at work as her work ability was being affected. She found this ‘extremely confusing and hurtful’,[51] as on 24 December 2020 she had been considered capable to act as a supervisor. The Applicant claims that Ms Carrero commented that she was ‘not normal’, and that they do not know whether or not she is going to stay at work, which is an issue because staff are allocated to an area for operational requirements. The Applicant claims she was told that she should not have left work on the two occasions because she was not ‘physically sick.’[52]
[47] Exhibit R1, T3, 14.
[48] Ibid.
[49] Exhibit R1, T3, 15.
[50] Ibid.
[51] Ibid.
[52] Exhibit R1, T3, 16.
In her statement, the Applicant stated that she believed that it would have been more appropriate for the meeting to have been conducted towards the end of shift, ‘as it was always going to be an emotional meeting for me especially when they think I am not okay/normal.’[53] The Applicant was ‘an emotional wreck’ following the meeting and was not in any state to be able to go straight back to work. She rang her mother and ‘was quite distressed and emotional.’ She did not however leave work even though she was not in a state to work. The Applicant wrote in her statement that she felt ‘this meeting was poorly timed and [it] was not appropriate to raise issues as it was my first day back. I would have been completely open to a welfare check being conducted on my first day, but to raise issues in the same meeting was not appropriate and very hurtful for me.’[54]
[53] Exhibit R1, T3, 16.
[54] Exhibit R1, T3,16.
Dog attack
The Applicant provided copies of the discharge referrals relating to the injuries she and her mother sustained in a dog attack on 10 September 2021. In her letter to the Tribunal dated 26 November 2021, the Applicant explained that she was struggling financially, that her mother was working from home to care for her, and this was the only reason she was home the day of the attack. The Applicant was taken by an ambulance to Liverpool Hospital suffering from significant injuries to her left leg requiring two operations, and puncture wounds to both her arms and right thigh. While she was in hospital, she was not coping mentally, was held in hospital under duty of care, and was placed on suicide watch. Her mother's injuries were so significant that the hospital staff prepared her sister for the possibility that her mother would die, or at least have her left leg amputated. Her mother was placed into a coma when she arrived at Liverpool Hospital and stayed in a coma for approximately six days. She was operated on for 25 hours in the first 48 hours after the attack. She had multiple operations on all of her body including her neck and face. Her injuries included a bypass in her left leg, tissue transfusion from her right thigh to her left thigh, skin graft from her right thigh to her left thigh, skin graft from her right thigh to her right forearm, laceration and puncture wounds to the majority of her body, a shattered thumb on her right hand that required the insertion of pins inside, and a snapped tendon and chipped bone in her left hand. Her neck was also bitten, which cut the facial nerve, resulting in loss of movement on the left side of her face.[55]
WITNESS EVIDENCE
[55] Applicant’s letter dated 21 November 2021.
Emily Hay
Ms Hay is employed by the ABF as Operational Inspector (EL1). She has held this position since November 2019. She has been the Applicant’s manager since November 2019 except for a period between 24 July 2020 and 27 November 2020 when she was seconded to a different role. Ms Hay provided a statement dated 24 March 2022,[56] and gave oral evidence at the hearing.
[56] Exhibit R2, R3, 100-113.
In her oral evidence, Ms Hay described her observations of the Applicant when she first moved to the airport in November 2019:[57]
‘[The Applicant] was one of those workers that you could ask to do anything, and you would know that the job would be done and completed to the best of her ability. She was an officer I saw great potential in and was very keen to develop and grow. She had recently graduated BFORT training. So she was an officer that I could see great potential in and have a really great career [in] Border Force.’
[57] Transcript of proceedings, 10 August 2022, 74.
In her statement, Ms Hay detailed her interactions and conversations with the Applicant throughout 2020 following the death of the Applicant’s father in December 2019. She reported that following the Applicant’s return to work and in subsequent months she had ‘multiple conversations’ with the Applicant ‘concerning her mental well-being’.[58] She was concerned about the Applicant’s welfare and would ‘regularly check in to see how she was going and whether she needed any assistance.’[59] She recommended to the Applicant on numerous occasions that she contact the ABF’s EAP provider (Benestar) to discuss any concerns or issues she was having.[60] These conversations were held at times in Ms Hay’s office, in passing whilst the Applicant was performing her duties, and at times, out the front of the airport terminal building.[61] Ms Hay told the Tribunal that it was not uncommon when she had a conversation with the Applicant ‘that would result in tears.’[62]
[58] Exhibit R2, R3, 100.
[59] Ibid, 101.
[60] Ibid.
[61] Ibid.
[62] Transcript of proceedings, 10 August 2022, 78.
Ms Hay stated that she was informed on a few occasions by the Applicant’s colleagues that she ‘was not coping well’ or was not ‘good’. She often found the Applicant outside the terminal building on the telephone to her mother.[63] Although the Applicant had left her duties to speak to her mother, Ms Hay states that she never reprimanded the Applicant, nor was she disciplined. She told the Tribunal that she ‘knew that that was a coping mechanism’ for the Applicant, ‘either to get through the shift or to get through a difficult period.’[64] She tried to provide the Applicant with support, as she was concerned about her mental health and well-being.[65] She encouraged the Applicant to reach out for professional assistance.[66] The Applicant’s response to Ms Hay’s concerns was to deny that there was anything wrong, and at times she would roll her eyes at Ms Hay.[67]
[63] Exhibit R2, R3, 101.
[64] Transcript of proceedings, 10 August 2022, 74.
[65] Ibid.
[66] Exhibit R2, R3, 101.
[67] Ibid.
Ms Hay stated that throughout 2020, and in particular after she returned to her role at the airport in November 2020, she observed a change in the Applicant’s appearance and demeanour. She told the Tribunal that she observed ‘a complete flip’ in the Applicant: she did not want to step up or step outside what she was tasked to do. Her attitude was ‘I’m doing this job and that’s all I’m doing’.[68] Ms Hay noticed that the Applicant had become ‘more withdrawn … and rarely [was] seen smiling or joking with colleagues’ and ‘looked upset and cranky.’[69] It appeared to her that the Applicant ‘was less enthusiastic about what she was doing at the airport and her purpose.’ She also noticed that ‘she appeared to be a lot more depressed in her attendance and just her overall well-being.’[70] Numerous colleagues and supervisors expressed their concerns to Ms Hay about the Applicant’s behaviour and presentation, and indicated that they were becoming ‘increasingly concerned for her.’[71] In her oral evidence, Ms Hay explained that officers would come into her office and have a general chat with her and say they were concerned for the Applicant. They observed from general conversations with the Applicant that she had become ‘a bit standoffish’ and ‘less engaging with them’.[72] Towards the latter part of 2020, the Applicant’s attitude and behaviour resulted in employees ‘treading on eggshells’ around her whilst also trying to provide her with support.[73]
[68] Transcript of proceedings, 10 August 2022, 74.
[69] Ibid.
[70] Ibid.
[71] Ibid, 75.
[72] Transcript of proceedings, 10 August 2022, 75.
[73] Ibid.
Ms Hay explained that during 2020, ABF management assisted the Applicant by allocating her duties alongside those colleagues with whom she got along well, and whom she regarded as her friends.[74] However, there were periods when, due to operational reasons, this could not be arranged and the Applicant was not allocated with her close friends.[75] According to Ms Hay, the Applicant appeared to interpret this as ABF management ‘acting against’ her, and that it was unsympathetic’ about her circumstances’.[76]
[74] Exhibit R2, R3, 101.
[75] Ibid, 102.
[76] Ibid.
5 December 2020
In her statement, Ms Hay provided her account of her conversation with the Applicant on 5 December 2020, after she had been made aware that the Applicant had a verbal altercation with an APS6 supervisor Ms Erener. At the hearing, Ms Hay explained that on 5 December 2020 the Applicant had been deployed to Gulf 1 and she did not report to her duties to the APS6 supervisor and she was looking for her.[77] It is Ms Hay’s understanding that the Applicant ‘had responded inappropriately and with an aggressive tone to Gulay when she was questioned as to why she hadn’t reported for duty’.[78] She says she informed the Applicant that ‘this behaviour was inappropriate’,[79] and explained that it would have been better to have had a private conversation about her concerns about which duties she had been assigned, and not to have escalated the matter in the mess room.[80] Ms Hay did not discipline the Applicant for her behaviour as she ‘suspected that there were other issues affecting her mood.’ She questioned the Applicant ‘to find out if there was some other reason for her reaction and to understand her poor behaviour.’[81] She also raised her concerns for the Applicant’s mental health, and indicated that she had noticed the Applicant ‘appeared flat and her appearance had changed and that minor issues appeared to be getting to her’.[82] She offered the Applicant EAP documentation and offered to call an EAP counsellor. The Applicant ‘stated numerous times that she did not want help, that a counsellor could not help her and that she did not want to be medicated.’[83] She ‘flatly denied that there was anything wrong with her, that she needed help.’[84] Ms Hay told the Tribunal that she witnessed ‘somebody breaking down in front of [her] and not coping with work and not coping with the situation she was in.’[85] Ms Hay inquired with the Applicant as to which roles she preferred to undertake, and she indicated her preference for ‘Juliet’. She told the Applicant she would try her best to put her in this role, but it could not be guaranteed as she was expected to work with all her colleagues.[86]
[77] Transcript of proceedings, 10 August 2022, 78.
[78] Exhibit R2, R3, 103.
[79] Ibid.
[80] Ibid, 102.
[81] Ibid, 103.
[82] Ibid.
[83] Ibid.
[84] Transcript of proceedings, 10 August 2022, 79.
[85] Ibid.
[86] Exhibit R2, R3, 104.
Stephen Mercer
Stephen Mercer is employed by the ABF as a Border Force Supervisor (APS6). He has held this position since early 2002. He provided a statement dated 1 March 2022,[87] and gave oral evidence at the hearing. The Applicant came under his supervision in October 2019.[88]
[87] Exhibit R2, R5, 117-139.
[88] Ibid, 117.
In his statement, Mr Mercer explained that on the Applicant’s return to work after the death of her father in December 2019, he tried to make things as easy as possible for her, including deploying her with colleagues who were her friends and approving requests for leave on very short notice.[89] Mr Mercer stated that he intervened in the restructure in August 2020 to request that the Applicant remain in the same unit as David Sealey as they car-pooled to work, and he was providing her with support.[90] Mr Mercer attached copies of text messages he sent to the Applicant during 2020 checking on her well-being.
[89] Ibid, 118.
[90] Ibid.
Mr Mercer detailed his observations and interactions with the Applicant on 25 December 2020. The Applicant approached him ‘very upset’ and said she had heard Ms Gayet tell some colleagues that she was a ‘sook’. He thought, from a duty of care perspective, it was best for the Applicant not to be at work and that she should go home.[91] She indicated to him during their conversation that she ‘did not want to be here’. He understood that to mean the airport, and he suggested she ask Ms Hay to explore options for facilitating a move to another unit or area. The Applicant indicated to him that she was not sure if she even wanted to be in the ABF anymore. Mr Mercer asked the Applicant to send him a text when she was safely at home which she did, thanking him for ‘everything’.[92]
[91] Ibid, 119.
[92] Ibid, 120.
On 9 January 2021, Ms Hay was on leave and not due to return until the following week so they agreed that Mr Mercer should speak with the Applicant on her return from leave to ‘check on her welfare.’[93] At about halfway through the shift on 9 January 2021, Mr Mercer asked the Applicant’s team leader to ask the Applicant to come and see him when she was free. His intention was to advise the Applicant that he ‘needed to have a chat with her later in the shift to see how she was going and to discuss other matters.’ He wanted ‘to give her time to arrange to bring a support person’ to the meeting. Mr Mercer informed the Applicant that he ‘wanted to have a chat later that day to see how she was after what had happened on Christmas Day and also to discuss her leaving early.’[94] He asked her if she wanted to have someone with her as a support person. She said she did not, and she ‘wanted to have the discussion straightaway.’[95] She ‘appeared to be getting upset’ and he was concerned about proceeding with the meeting without her having a support person present.[96] He asked Ms Carrero to be present at the meeting.
[93] Ibid.
[94] Ibid, 121.
[95] Ibid.
[96] Ibid.
During the meeting, Mr Mercer explained to the Applicant that he wanted to check on how she was feeling following what had happened on 25 December 2020 when she left work early.[97] The Applicant became ‘defensive’ and accused him of ‘having a go’ at her for leaving work early without due regard to her circumstances.[98] He expressed concern about the Applicant’s mental health and that it was affecting her behaviour at work, including her relationships and interactions with colleagues.[99] He also explained to the Applicant that when she had to leave early it had an impact on the unit.[100] He denied criticising the Applicant for taking time off work for mental health issues and leaving work, and claimed that he always tried to support her and placed priority on her mental health and well-being.[101] He and Ms Carrero shared their personal mental health issues and experiences with counselling to encourage the Applicant ‘to acknowledge that she needed help.’[102] The Applicant complained that he had not scheduled the meeting for later in the shift given it was upsetting for her. He acknowledged that ‘given the nature of the discussion it would have been upsetting regardless of when it was held.’[103]
[97] Ibid.
[98] Ibid.
[99] Ibid, 122.
[100] Ibid.
[101] Ibid.
[102] Ibid.
[103] Ibid.
During cross-examination, Mr Mercer was asked whether Ms Carrero called the Applicant ‘not normal’. He replied, ‘most definitely not. I refute those comments. And I find them insulting and offensive. Certainly not.’[104] He was asked whether the Applicant was told she was not ‘strong enough’, to which he replied, ‘definitely not.’ He was asked whether he told the Applicant she was not ‘resilient enough’ to which he replied ‘no, I think we suggested counselling would help her deal with situations.’[105] Mr Mercer was asked whether it was reasonable to criticise the Applicant for leaving work early on two occasions. He stated:
‘I don’t know that anyone has criticised you. We were trying to help you and - and get across the impact of leaving early. And basically, if you’re not in a fit state to work, maybe you shouldn’t be there. And we’ve offered you counselling and you didn’t want to take it ...’
[104] Transcript of proceedings, 10 August 2022, 110.
[105] Ibid, 101.
Clodelia (Del) Carrero
Ms Carrero is employed by the ABF as a Supervisor (APS6). She has held this position since July 2020. She provided a statement dated 11 February 2022,[106] and gave oral evidence at the hearing. She has known the Applicant since August 2020 however has not been her supervisor.[107]
[106] Exhibit R2, R4, 114-116.
[107] Ibid, 114.
In her statement, she confirmed that she was not aware of the Applicant’s personal or work issues prior to the meeting on 9 January 2021. She was asked by Mr Mercer to attend the meeting as the Applicant’s support person. She observed the Applicant ‘appeared upset from the outset’ she had ‘tears in her eyes’, and as the meeting proceeded she ‘became increasingly upset and teary.’[108] Mr Mercer indicated that he was concerned about the Applicant’s ‘welfare and mental state’ given she went home early on Christmas Day. The Applicant ‘appeared defensive during the discussion and did not seem to be listening.’ Mr Mercer tried to get the Applicant ‘to acknowledge that her personal issues were affecting her performance at work and her interactions with her colleagues.’[109] He encouraged her ‘to seek some professional assistance’.[110] Ms Carrero confirmed that the Applicant ‘was not criticised for taking time off work or leaving early due to her psychological issues rather she was encouraged to acknowledge that her mental health issues were having a negative impact on her behaviour and interactions at work’ and to get some professional help.[111] Ms Carrero observed that the Applicant ‘was becoming increasingly upset’ and she said to her that ‘her reactions did not appear be normal reactions and there were obviously some issues she needed to get help with.’[112] She denies that she called the Applicant ‘not normal’ and believes that the Applicant did not hear her properly or misinterpreted what she said. She spoke to the Applicant alone at the end of the meeting in the hope she would ‘open up’ to her but she did not do so. The Applicant told Ms Carrero that she did not have to stay with her. Before she left the room, she repeated to the Applicant that if she ever needed to talk to someone, she could always grab her for a chat.[113]
[108] Ibid.
[109] Ibid.
[110] Ibid.
[111] Ibid, 115.
[112] Ibid.
[113] Ibid.

In her oral evidence at the hearing, Ms Carrero denied that she said to the Applicant during the 9 January 2021 meeting that she was not ‘strong enough’ or ‘resilient enough’.[114] She told the Tribunal that she advised the Applicant that she ‘needs support’ and ‘professional help’ and that they are not qualified to give her this assistance; they can only offer it to her. She said that what the Applicant was ‘going through is not normal [and] that she needed to seek some help.’[115]
[114] Transcript of proceedings, 10 August 2022, 128.
[115] Ibid.
David Sealey
Mr Sealey has been employed as a Team Leader (APS5) for the last 10-12 years. He provided a statement dated 28 February 2022,[116] and gave oral evidence at the hearing. He has known the Applicant since late 2019 when they started working in the same team. As he and the Applicant live nearby to each other and need to travel some distance to work, they started car-pooling together in early November 2019. They would spend about 2-2 ½ hours a day in the car together travelling to and from work.[117] In his oral evidence, he described the Applicant prior to December 2019 as a ‘bubbly, vibrant girl.’[118]
[116] Exhibit R2, R6, 140-145.
[117] Ibid, 140.
[118] Transcript of proceedings, 10 August 2022, 94.
Following the death of her father in December 2019, Mr Sealey observed a change in the Applicant’s ‘behaviour and mental state’. He noticed that ‘her resilience and ability to cope at work was diminished.’[119] She ‘was not her usual bubbly self’ and was ‘easily frustrated, sometimes anger (sic).’[120] Throughout 2020, he ‘noticed that her emotional state was deteriorating’, and on numerous occasions he suggested to her ‘that maybe she should talk to someone or seek some counselling.’[121] He also suggested that ‘she take some the time off work to get away from both work and home to have a break.’ She indicated to him that ‘the family were helping each other through this traumatic time.’[122] The Applicant told Mr Sealey that she was grateful for the support she had received from the ABF.[123]
[119] Ibid.
[120] Ibid, 95.
[121] Exhibit R2, R6, 140.
[122] Ibid, 141.
[123] Ibid.
Mr Sealey confirmed that there was ‘genuine concern’ for the Applicant’s wellbeing at all levels at the ABF, and management had been ‘very accommodating’ and ‘mindful and respectful of her emotional and mental state.’[124] He observed that the Applicant was often upset at work, and on one occasion she seemed convinced and paranoid that someone was talking about her. He also observed that ‘her coping skills at work were sliding and she was easily upset by minor things that people would say.’[125] Mr Sealey observed the Applicant after she received the news of the death of her sister’s baby, and saw that she was ’terribly distraught and in hysterics’.[126]
[124] Ibid.
[125] Ibid.
[126] Ibid.
Mr Sealey contacted the Applicant on 8 January 2021, the day prior to her returning to work. She told him that she was ‘anxious’ about returning to work, and he tried to allay her concerns by telling her she had been rostered on with him. When they were driving home on 9 January 2021, the Applicant said she was ‘not happy’ that she had been ‘questioned on her work behaviours’ at a meeting that day. She said she had decided to leave the ABF and the decision ‘had been made by the way that she had been treated during that meeting.’[127] She said that she was questioned on her performance and told that she should not have left work early on 25 December 2020 when she was not physically ill.[128] The Applicant said she believed that the ABF management ‘did not have any concerns for her wellbeing’. When Mr Mercer tried to explain that the ABF were ‘very concerned’ about her well-being, ‘she disputed that’.[129] The Applicant ‘was adamant that the supervisors and inspector were not concerned about her mental health.’[130] At this point, the Applicant became ‘quite upset’ and so he ‘changed the topic of the conversation’ so as ‘to not make matters worse’.[131]
MEDICAL EVIDENCE
[127] Ibid, 143.
[128] Ibid.
[129] Ibid.
[130] Ibid.
[131] Ibid.
Dr Malak Makarious, General Practitioner
On 14 January 2020, Dr Makarious completed a file note in relation to the Applicant, recording that the reason for the consultation was ‘stress’. He documented that the Applicant’s father committed suicide three weeks prior, and that the Applicant denied any undue anxiety. Dr Makarious strongly suggested that the Applicant seek counselling with a psychologist, but the Applicant was ‘not keen’ at that point in time.[132]
[132] Exhibit R2, R8, 181.
On 7 October 2020, Dr Makarious assessed the Applicant for ‘stress and anxiety’. He recorded that the Applicant said that she had been ‘getting emotional’ over the past few days. Her father’s death had been ‘on her mind’, and she had been ‘teary at work’. She reported that she had been ‘going well’ for the last six to eight months. Dr Makarious reported that the Applicant had a ‘down mood’. He also repeated his recommendation for counselling. The Applicant denied any acute depression or thoughts of self-harm. Dr Makarious advised her to see a clinical psychologist.[133]
Dr Himanthi Balasuriya, General Practitioner
[133] Ibid.
The Applicant saw Dr Balasuriya on 11 January 2021, who provided a medical certificate dated 11 January 2021 stating that the Applicant was unfit for her usual occupation between 10 to 22 January 2021.[134] In a certificate of capacity for work completed by Dr Balasuriya on 11 June 2021, she wrote that the Applicant suffered a mood disorder secondary to workplace harassment and bullying and was unfit for work from 11 January 2021 to 11 July 2021.[135] She noted the Applicant had been prescribed antidepressant medication Sertraline (50 mg), and had been referred for psychological therapy. Dr Balasuriya also recommended the Applicant undergo review by a psychiatrist to confirm the diagnosis and to optimise treatment. She confirmed the Applicant had first seen her for the condition on 11 January 2021, and that the date of injury was 5 December 2020.
[134] Ibid, 172.
[135] Ibid, R7, 151.
Dr Balasuriya provided a report dated 7 July 2021 at the request of the Respondent. She reported that the Applicant first saw her for the work-related issue on 11 January 2021 indicating she was ‘feeling low and stressed’. The Applicant gave her a history that during Christmas 2019 her father had committed suicide, and after a few days she had returned to work in order to assist her to ‘cope and keep her mind off of it’. The Applicant reported that she had continued to work the next year and ‘felt that she was coping okay’. On the day of the anniversary of her father’s death, she wanted to be with her family but ‘work was not supportive of this and wanted her to stay back at work.’ The Applicant ‘had felt stressed and felt her teammates were being nasty towards her.’[136] She learned of the death of her sister’s baby when she was at work, and she left to be with her family. After returning to work she noticed that the work environment had changed, and her team leader and team-mates’ behaviour towards her had changed. Her team leader/boss ‘called her in for a meeting and advised that she should not have left work early on that day as she was not physically ill.’ On hearing this ‘she felt very unsupported, cornered and upset as they did not take a mental status into consideration and made such a comment.’[137] Following this, the Applicant ‘felt her mental health started deteriorating rapidly due to the unsupportive work environment.’[138]
[136] Exhibit R2, R8, 170.
[137] Ibid.
[138] Ibid.
Dr Balasuriya noted that although she first saw the Applicant in January 2021, she advised that ‘workplace bullying started around mid-December hence the date of first impairment.’ Dr Balasuriya was of the opinion that the Applicant was suffering with a ‘mood disorder likely mixed depression and anxiety or Adjustment disorder with depression and anxious mood with stress which was precipitated by work related stress and bullying as well as stillbirth of her niece or nephew on a background of complicated grief due to her father's death.’[139]
[139] Ibid, 171.
Associate Professor Saji Damodaran, Consultant Psychiatrist
Associate Professor Damodaran examined the Applicant at the Respondent’s request via a telehealth appointment on 11 August 2021 and provided two reports dated 18 August 2021.[140]
[140] Exhibit R2, R10, 278-291.
Associate Professor Damodaran diagnosed the Applicant with ‘adjustment disorder with mixed anxiety and depressed mood.’[141] He considered that the symptoms from this condition became clinically identifiable by 9 January 2021 but noted that the Applicant had ‘some emotional distress and emotional symptoms’ before this date. He reported that there was no pre-existing psychiatric condition, although the Applicant was ‘psychologically vulnerable given the understandable grief and bereavement she was going through during 2020.’ In his opinion, the Applicant’s condition ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ His view is that the main factors contributing to the Applicant’s condition are the employment factors in relation to the Applicant’s concern regarding what she described as ‘the alleged lack of support’ and the ‘accusation that she was unreliable and her perception that she was not being understood and they did not understand mental health issues’.[142] He noted that he is aware of the non-employment factors, namely ‘the bereavement and also the grief in relation to the loss of her sister's unborn child which were also significant non-employment factors and could be making her vulnerable.’[143] In his opinion, ‘the employment factors are a significant factor in relation to the development of the psychiatric condition though the non-employment factors made her highly vulnerable.’ Associate Professor Damodaran stated that it is ‘difficult to isolate the contribution’ of employment factors to the Applicant’s condition, however in his opinion they ‘are the predominant factors which could contribute at least 70%.’[144]
[141] Ibid, 288.
[142] Ibid, 289.
[143] Ibid.
[144] Ibid.
Leanne Bridgford, Clinical Psychologist
Ms Bridgford reported that the Applicant presented to her on referral from Dr Balasuriya with mixed anxiety and depressive symptoms against a background of loss, grief and workplace bullying and harassment. She provided a report back to Dr Balasuriya in June 2021, in which she noted that her overall impression was that the Applicant had a complicated grief reaction to her father’s death that had been exacerbated by stress and bullying at work and the stillbirth of her sister’s baby.[145]
[145] Exhibit R2, R8, 243.
Ms Bridgford provided a second report dated 23 August 2021.[146] The Applicant told Ms Bridgford that following the death of her father in December 2019, her workplace was ‘very supportive’. The Applicant reported ‘that she had begun to notice a decline in her mental health part way through last year but was still able to work describing work as a safe place to be.’[147] However following the stillbirth of her sister’s child in late November 2020, ‘she was disappointed that her work place was not as supportive of her this time.’ The Applicant reportedly ‘asked for an easier area to work in for a while as she was still keen to remain at work.’ Her boss ‘humiliated her in front of her work colleagues’ and ‘her work colleagues then started to tease of (sic) her.’[148] The Applicant detailed an incident in which ‘she had requested to leave work on time to spend time with her family on the anniversary of her father’s death.’ She explained that ‘she was told to work overtime’ “stay back”. She described some of her interactions with her team leader as ‘very stressful.’ She also described her team leader as having been ‘nasty towards her’. She described the incident on 9 January 2021 when she was asked to attend a meeting to discuss some welfare issues. She said she ‘felt singled out and picked on and she was aware of her colleagues watching her.’[149]
[146] Exhibit R1, T29, 201.
[147] Ibid.
[148] Ibid.
[149] Ibid.
Dr Christopher Cocks, Consultant Psychiatrist
Dr Cocks examined the Applicant at the Respondent’s request and provided a report dated 1 March 2022.[150]
[150] Exhibit R2, R1, 75.
Dr Cocks diagnosed the Applicant with Major Depressive Disorder. He explained how the Applicant’s symptoms met the DSM-5 criteria for this condition:[151]
‘[CCTS] presents with biological and psychological symptoms characteristic of a depressive illness. She presents with hopelessness and worthlessness. She reported a pervasively low and depressed mood. She reported marked anhedonia with a loss of interest in activities once enjoyed. Her sleep is impaired with initial and intermittent insomnia. Her concentration is impaired and she suffers from short-term memory deficits. [CCTS] struggles with fatigue throughout the day. She rarely exercises. [CCTS]'s weight has diminished and her appetite is suppressed. Of concern, [CCTS] reported non-specific suicidal thoughts.’
[151] Ibid, 82.
Diagnostic Criteria For Major Depressive Disorder
A) Five (or more) of the following symptoms have been present during the same 2‐week
period and represent a change from previous functioning; at least one of the symptoms
is either (1) depressed mood or (2) loss of interest or pleasure.
(Note: Do not include symptoms that are clearly attributable to another medical condition)
1) Depressed mood most of the day, nearly every day as indicated by either subjective
report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears
tearful). (Note: In children and adolescents, can be irritable mood).
2) Markedly diminished interest or pleasure in all, or almost all, activities most of the day,
nearly every day (as indicated by either subjective account or observation).
3) Significant weight loss when not dieting or weight gain (e.g., a change of more than 5%
of body weight in a month), or decrease or increase in appetite nearly every day. (Note:
In children, consider failure to make expected weight gain.)
4) Insomnia or hypersomnia nearly every day.
5) Psychomotor agitation or retardation nearly every day (observable by others, not
merely subjective feelings of restlessness or being slowed down).
6) Fatigue or loss of energy nearly every day.
7) Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional)
nearly every day (not merely self‐reproach or guilt about being sick).
8) Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by
subjective account or as observed by others).
9) Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without
a specific plan, or a suicide attempt or a specific plan for committing suicide.
B) The symptoms cause clinically significant distress or impairment in social, occupational,
or other important areas of functioning
…
Dr Cocks reached this conclusion based on the evidence from the assessment that he conducted, and a review of the documentation he was provided. He concluded that the Applicant ‘suffers from a severe and functionally disabling depressive illness.’[152] In his opinion, ‘the aetiology of this condition is multifactorial’ and ‘there was not a direct causal relationship between the depression … and [the Applicant’s] employment with the [ABF].’[153]
[152] Ibid.
[153] Ibid, 84.
Dr Cocks reported that the Applicant ‘had impressed throughout the assessment that her employment at [ABF] was the sole contributor to the deterioration in her mental health since January 2021’ at the ‘exclusion of other significant traumas suffered by her’. In his opinion, ‘this was not a conscious attempt by [the Applicant] to manipulate the process.’ He suspected that she ‘has become enmeshed in the claim process.’ In his view, this is ‘an unfortunate outcome as treatment has focused on the work-related contribution to the exclusion of the substantial external stressors that she has suffered both prior and post the claimed injury.’[154]
[154] Ibid, 83.
Dr Cocks was asked to consider the contribution, if any, of the workplace incidents on 5 and 25 December 2020 and 9 January 2021 to the Applicant’s condition. He stated:[155]
‘In my opinion, these work-related incidents should not be attributed as substantial in their contribution to [CCTS]'s development of a Major Depressive Disorder. These incidents are relevant in their perpetuation of the condition; however, they need to be considered in the context of the substantial nonwork-related psychosocial stress suffered by [CCTS] that both predates and postdates the claimed injury. I suspect that these incidents were perceived by [CCTS] as a lack of support by her employer. Given her mental state at the time; however, it is possible that [CCTS]'s perception of these events was adversely affected by the non-work-related traumas that she was experiencing. In my opinion, having assessed [CCTS] and reviewed the substantial documentation provided, the incidents outlined and meeting of 9 January 2021 whilst relevant should not be considered as causative to [CCTS]'s diagnosed psychological condition.’
[155] Ibid, 84.
In his oral evidence at the hearing, Dr Cocks told the Tribunal that he did not consider that work could be seen as a sole or substantial contributor to the Applicant’s condition, but he ‘accepted that it was a stress that she had to endure amongst substantial stress outside of work leading to the development of her condition.’[156]
[156] Transcript of proceedings, 10 August 2022, 113.
Dr Cocks was asked to consider the contribution if any to the Applicant’s condition of the death of her father, the stillbirth of her sister’s baby, and the dog attack. He stated:[157]
‘In my opinion, the factors that are raised in this question are all relevant to contributing to [CCTS]'s depressive illness. The death of her father in December 2019 was a profound loss for her. [CCTS]'s sister's miscarriage was described as a further death in the family. These two losses were significant for [CCTS] and are, in my opinion, substantial contributors to the depressive illness that she suffers to date. The dog attack in September 2021 was a further trauma suffered by [CCTS]. As I have outlined, she has also suffered significantly in the context of the breakdown of a recent relationship, the father of which is the biological father of her baby. Furthermore, [CCTS] has a significant financial stress. There are significant non-work-related factors that are, in my opinion, contributing to [CCTS]'s major depressive disorder.’
[157] Exhibit R2, R1, 84.
Dr Cocks was asked for his opinion in relation to whether the Applicant had a pre-existing condition and, if so, the effect, if any, of the workplace incidents on the condition. He stated:[158]
‘In my opinion, this condition is pre-existing evident by the fact that she had a pre-existing vulnerability to the development of depression. She previously has been prescribed antidepressant medication as early as 2013. The death of her father and the subsequent loss of her sister's baby were two substantial traumas suffered by her that in my opinion impacted upon her mental health in 2020. Her clinical psychologist provides evidence that there was a general deterioration in her mental health towards the middle of 2020. In my opinion, work has contributed an exacerbation of her condition - to what degree I cannot quantify.’
[158] Ibid, 85.
Dr Cocks provided a supplementary report dated 11 May 2022 after reviewing additional material provided to him.[159] He confirmed that the additional information did not alter his opinion.[160] He stated:[161]
‘In my opinion [CCTS] has suffered from a Major Depressive Disorder. In my opinion, the aetiology of this condition is multifactorial. The clinical file of Dr Toohey confirms my opinion that [CCTS] presents as a woman with significant pre-existing vulnerabilities. There is evidence throughout the medical file of Dr Toohey that [CCTS] has suffered significant psychological adversity throughout her life that pre-dates to her childhood and adolescence. There is medical evidence that she suffered from significant anxiety prior to the claimed injury that was functionally impairing for her. I acknowledge that [CCTS] was not formally diagnosed with a major mental illness prior to the claimed injury. The prescription of an antidepressant in 2013 suggests that a medical practitioner assessed her psychological state at that time and determined that she met criteria for treatment with antidepressant medication.
In my opinion, there is consistent evidence that [CCTS] has suffered psychological adversity outside of her employment with The Department of Home Affairs. In my opinion, [CCTS]’s depressive illness is related to the psychological adversity that she has suffered outside of her employment with The Department of Home Affairs.’
[159] Exhibit R2, R2, 95.
[160] Ibid, 97.
[161] Ibid, 97-98.

Dr Cocks confirmed that in reaching his opinion, he required a full history of the Applicant’s relationship with her father, which were contained in Dr Toohey’s clinical notes, and access to the full scope of the medical records from the Tahmoor Medical Centre.[162]
[162] Transcript of proceedings, 10 August 2022, 118.
In his oral evidence at the hearing, Dr Cocks was asked to explain to the Tribunal about displacement as a protective mechanism. He explained that ‘displacement is a defence mechanism that we often use to manage processing … difficult situations.’ It is ‘a displacement of the tension that the individual is feeling … instead of confronting the source of the problem, it is displaced onto another, less confronting source.’[163] Dr Cocks was asked what, if any, relevance he considered that displacement has in the Applicant’s circumstances. He stated:[164]
‘[The Applicant] has displaced the psychological stress that she’s endured in those non work-related factors and identified work as the sole contributor and that has been something that has been a way of her managing the substantial stress that she’s been under. Unfortunately, that process is counterproductive, because as she focusses on work as a sole contributor to her problems, she doesn’t focus on the other things. She doesn’t address the sole cause to her mental health related difficulties, so she doesn’t engage in psychological support. Or when she does (indistinct) treatment, it involves focussing on work-related issues where, in fact, in my opinion, [the Applicant] requires assistance in trying to help her navigate the implications of the dog attack, the flashbacks and nightmares that she may well be experiencing, continuing the grief associated with the death of her father and her sister’s loss, to help support her through the financial stressors that she’s facing. All of these non work-related factors get ignored when people displace issues into territory that where - that’s not the source of the issue.’
[163] Ibid, 116.
[164] Ibid.
Dr Cocks was asked whether, in his opinion, work was an inert focus for a psychological condition that was determined by other factors. He replied:[165]
‘Yes, I agree that work became a focus for her stress. It became a focus for her trying to understand her condition at the exclusion of the other factors that were, in my opinion, clearly contributing to her psychological difficulties.’
[165] Transcript of proceedings, 10 August 2022, 116.
In relation to the statement in his first report that ‘work has contributed an exacerbation of her condition. To what degree, I cannot quantify’, Dr Cocks was asked whether he would say it was ‘to a degree that is substantially more than material’, he replied ‘no’.[166]
[166] Transcript of proceedings, 10 August 202, 116-117.
Dr Cocks was asked whether he considered that Associate Professor Damodaran made the correct assessment in relation to the Applicant’s condition. He said that he disagreed that the Applicant suffers from Adjustment Disorder, as the DSM-5 criteria for this condition are not met.[167] He explained that criteria C requires that ‘the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.’ In his opinion, the stress-related disturbance suffered by the Applicant meets the DSM-5 criteria for Major Depressive Disorder. She meets these criteria for reason that she experienced ‘biological and psychological symptoms characteristic of a depressive illness.’ He also disagreed with Associate Professor Damodaran’s finding of 70 percent work contribution to the Applicant’s condition. It is unclear to him how this figure was arrived at by Associate Professor Damodaran.[168]
[167] Adjustment Disorders DSM-5 Diagnostic Criteria Code 309
A. The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviors are clinically significant, as evidenced by one or both of the following: Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation. Significant impairment in social, occupational, or other important areas of functioning.
C. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
D. The symptoms do not represent normal bereavement.
E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.
[168] Transcript of proceedings, 10 August 2022, 117.
Dr Cocks was asked to explain the interrelationship between grief and a depressive illness. He explained:[169]
‘When … grief isn’t processed properly, then it can become a complex grief, and that can become a risk factor for the development of a depressive illness. The distinction is that grief tends to be more fluctuating. It doesn’t tend to be associated with suicidal ideation. It doesn’t tend to influence biological parameters such as a pervasive sleep disturbance, or a profound loss of weight. Grief can have - you know, periods of being quite almost relieved in the absence of anxiety. Followed by devastating despair. So, the mood states of an individual struggling with grief is that it fluctuates. That needs to be processed through the support of loved ones, and potentially the support of a grief counsellor, or a clinical psychologist. When that doesn’t happen and it’s pushed down and suppressed, and the individual says, I’m fine, there’s nothing to see here. Then it can come out in other ways. When this accumulates or other factors come to play, and it can lead to a pervasive depressive illness.’
CONTENTIONS
[169] Ibid, 125.
Applicant
The Applicant’s mental health and well-being were not the concern of the ABF. There was a clear and obvious point of deterioration in the Applicant’s mental health following her mistreatment in the workplace. It is clear that the Applicant was experiencing normal grief and bereavement following the death of her father in December 2019. This grief was fluctuating and had not impacted the Applicant’s capacity to function. Support provided by family, friends and her workplace had allowed her to move through this grief. The workplace was supportive following the death of the Applicant’s father. Following the suffering of another family tragedy, the workplace’s attitude towards its support for the Applicant significantly changed, and the focus shifted to running a business and how the Applicant was disrupting this. The fault here is that the outlined effects of the Applicant leaving work early on two occasions and how it was managed was unreasonable and unfair.[170]
[170] Transcript of proceedings, 11 August 2022, 140.
The performance and capability of the Applicant was not actually an area of concern for the ABF. This is supported through the higher duties that she was performing only a day prior to the second workplace incident, along with the positive feedback that she had received for her performance in the higher duties. Higher duties would not be given to employees whose performance has caused concern about their abilities to perform their job. A team leader role would not be given to an employee who is unstable and struggling to maintain professionalism and respectful interactions with her peers. This evidence goes against claims that the Applicant’s mental health was deteriorating and impacting her ability to function in the workplace prior to the events in December 2020 and thereafter.[171]
[171] Ibid.
The Applicant was called a ‘sook’ in a common area in front of her colleagues, and that is not okay or reasonable. No notice was given of the meeting on 9 January 2021 and the Applicant was instead ambushed on her first day back. That is not reasonable. Before the meeting commenced, the Applicant was crying, shaking, and in complete distress. The Applicant could not make a rational decision in regard to a support person given her state of distress. The Applicant was not advised who could be a support person at the meeting. This is not reasonable. Nor was the role of the support person in the meeting advised to the Applicant. That is not reasonable. Continuing the meeting with a co-focus on how the Applicant was impacting the running of a business was not reasonable when she was in such distress.[172]
[172] Ibid, 141.
Medical records clearly state in January 2020 – ‘no red flags apparent’ – and in October 2020 ‘no self-harm thoughts denies any red flags’. Doctor stated no red flags to be in reference to suicidal ideation. Dr Cocks’ determination at the time of his assessment was not wrong, although his assessment has been clouded by another tragic event (the dog attack). Therefore, the weight of his report should be highly scrutinised, given the timing of his assessment being compromised.[173]
[173] Ibid, 142.
Associate Professor Damodaran’s assessment and conclusion cannot be dismissed. His assessment was conducted closer to the injury providing a clearer assessment of the Applicant’s mental state following mistreatment in the workplace. Associate Professor Damodaran’s report dated 11 August 2021 highlighted that the Applicant suffered from clinically identifiable symptoms of Adjustment Disorder by 9 January 2021. He noted that the significant factor was the Applicant’s employment and the perceived lack of support from her employer. He further noted that whilst there were also significant non-employment factors, the employment factors were the predominant factors.[174]
[174] Ibid.
Dr Cocks stated in his cross-examination that grief can be differentiated from depression due to its fluctuating nature. Medical evidence from December 2019 to December 2020 clearly support this, as they record the Applicant’s stress and emotional state as fluctuating. In 2020, she visited the GP on four occasions; two of which recorded no comments on the Applicant’s mental state. The January 2020 consultation, only three weeks after the Applicant’s father’s death, recorded stress and anxiety. The October 2020 consultation was for the purpose of the Applicant asking for a self-care day.[175]
[175] Ibid.
Dr Cocks argued that unprocessed experience of trauma can lead to mental health difficulties and defence mechanisms. Dr Cocks was not granted the time or opportunity to explore how the Applicant had processed these events in her life and he made his judgment purely relying on the fact that they had occurred. Dr Cocks accepted that not everyone who experiences trauma requires psychological or psychiatric support.[176]
[176] Ibid.
The evidence shows a clear timeline where the Applicant was functioning well until mistreatment in the workplace occurred. It supports a finding that the administrative action was unreasonable in a number of aspects. No prior warning of the meeting, no clear outline of the support person, inappropriate comments, and an employee’s distressed state not being taken into consideration.[177]
[177] Ibid.
Criticising an employee for leaving work early because a family member had died is not reasonable. It is these events that caused and/or aggravated a mental injury as outlined in section 5A(1) of the SRC Act.[178]
[178] Ibid.
Respondent
The Applicant suffers from an ailment namely Major Depression. The evidence indicates that there was a gradual onset of symptoms prior to 5 December 2020.[179]
[179] Ibid, 144.
The Respondent submits that the Tribunal should prefer the evidence of Dr Cocks as set out in his two reports. He diagnosed a condition of Major Depression which is multifactorial in origin. He was unable to identify with certainty the date of the onset of the Applicant’s condition, but his view is that it was before 5 December 2020. He explained why the workplace events were not a significant contributor to the Applicant’s condition, and his view that the non-workplace factors contributed to, and have continued to perpetuate, the condition.[180]
[180] Ibid, 146.
Dr Cocks is the only medical expert whose opinion was provided to the Tribunal who had been fully briefed. He received and considered all the material and was cross-examined by the Applicant as to the key parts of his opinion. There was nothing that was put to him that caused him to change his opinion.[181] The Applicant did not give a full history to all of the medical experts who provided opinions about the cause of her condition. This history included her complex relationship with her father and the tragic circumstances that led up to his suicide. This history was given weight by Dr Cocks in reaching his opinion.[182]
[181] Ibid.
[182] Ibid, 147.
In relation to Dr Balasuriya’s report, she only had regard to what the Applicant had told her and she did not have access to the full scope of the materials in preparing her report. There is no evidence that she reviewed the previous notes of consultations with the Applicant at the Tahmoor Medical Centre. She did not give evidence, and it was not possible to test what if any impact other material may have had on her opinion had she been provided it.[183] Ms Bridgford’s opinion also was largely dependent on what the Applicant told her and when she told her. She did not have access to the entirety of the materials, and she did not give evidence, which necessarily limits the scope of her opinion on the contributing factors and whether they were significant or not.[184]
[183] Ibid, 148-149.
[184] Ibid, 150.
In relation to Associate Professor Damodaran’s report, he was briefed quite early in the Comcare process and he was provided with limited information, which did not include the 30 summons documents. The Applicant gave him a limited history which did not include her complicated relationship with her father or the events that led to his suicide. She did not mention that she had previously been prescribed an anti-depressant or that she had a history of childhood anxiety. Nor did she mention that she had 40 days leave in 2020.[185]
[185] Ibid.
It is apparent from the evidence that the Applicant’s work colleagues held a concern for her welfare. This concern followed the death of her father and continued on all the way through and up to and including the events on 5 December 2020 through to 9 January 2021.[186]
[186] Ibid, 151.
The evidence of the Applicant’s colleagues is that she had a decline in her mental health across 2020 following the death of her father. Mr Sealey was specifically asked and confirmed that the change in the Applicant’s behaviour he witnessed was present before the Applicant’s sister tragically lost her baby. There were issues with the Applicant coping, her resilience, and her ability to deal with work and her colleagues. Ms Bridgford’s report also indicates that the Applicant noticed the decline in her mental health part way through 2020.[187]
[187] Ibid.
In relation to the incident in the mess room on 5 December 2020, the Respondent contends it was reasonable for Ms Erener to come looking for the Applicant, and to have a discussion with her in the mess.[188] It was also reasonable for Ms Hay to have a conversation with the Applicant. The motivation of the conversation was not to discipline the Applicant. In the context of the circumstances, it was a reasonable conversation to have. The Tribunal should conclude that what occurred on 5 December 2020 was reasonable administrative action conducted in a reasonable manner. [189]
[188] Ibid.
[189] Ibid.
In relation to the incident on 25 December 2020, the Applicant was given an overlap of flights which is something that happens from time to time and can be resolved. This is not an extraordinarily unusual occurrence at the airport. It led to an interaction between the Applicant and Ms Gayet who called her a ‘sook’ or said that she was ‘sooking’. This led to a strong reaction from the Applicant, and the use of strong language. She left work with the agreement of Mr Mercer.[190]
[190] Ibid, 152.
In relation to the meeting on 9 January 2021, it was held against a background of a deterioration in the Applicant’s work behaviour, including in relation to her performance and actions that were becoming very noticeable at work. This required some sort of a management response, and that response was to conduct a welfare check.[191] The evidence of Mr Mercer is that he gave the Applicant notice that he wanted to have a meeting with her, but that she insisted it take place right away. He also gave evidence that he offered her a support person and that she declined it because she did not want anybody else to know about her tragedies, which were considerable. However, by then, there were any number of the Applicant’s colleagues who were aware of her tragedies and had, according to the Applicant’s own evidence, been providing her with support. She insisted that the meeting occurred immediately and did not ask for it to be deferred.[192]
[191] Ibid.
[192] Ibid, 153.
The evidence is that the Applicant was upset both at the start of the meeting and during the meeting. There is evidence that the Applicant regularly became upset and teary during meetings to discuss her welfare. The point had been reached where it was necessary to have a discussion with the Applicant about the concern for her mental health. This was not unreasonable in light of the important work that takes place at the airport.[193]
CONSIDERATION AND REASONS
[193] Ibid, 152.
What is the diagnosis and date of onset of the Applicant’s condition?
Based on the evidence before it, and for the following reasons, the Tribunal finds that the Applicant suffers from Major Depressive Disorder with an unspecified date of onset.
Associate Professor Damodaran diagnosed the Applicant with ‘adjustment disorder with mixed anxiety and depressed mood.’[194] He considered that the symptoms from this condition became clinically identifiable by 9 January 2021 but noted that the Applicant had ‘some emotional distress and emotional symptoms’ before this date. He reported that there was no pre-existing psychiatric condition, although the Applicant was ‘psychologically vulnerable given the understandable grief and bereavement she was going through during 2020.’ In his opinion, the Applicant’s condition ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’
[194] Exhibit R2, R10, 288.
Dr Cocks’ opinion is that the Applicant suffers from Major Depressive Disorder as her symptoms meet the DSM-5 criteria for this condition. Specifically, the Applicant ‘presents with biological and psychological symptoms characteristic of a depressive illness.’ In his view, the Applicant’s condition does not meet criteria C for Adjustment Disorder, as the criteria for another condition, Major Depressive Disorder, are met. Dr Cocks’ evidence is that the Applicant’s symptoms are not consistent with bereavement or grief which tends to be fluctuating and does not influence biological parameters such as a pervasive sleep disturbance. He found that as the symptoms the Applicant displayed are biological changes, this indicates she suffers from a depressive illness not the effects of bereavement.
In reaching a finding as to the ailment which the Applicant suffers, the Tribunal has given greater weight to the opinion of Dr Cocks for reason that, unlike Associate Professor Damodaran, he received and considered all the relevant material including the summons documents. The evidence that the Applicant’s condition has persisted beyond six months is a further indication that the criteria for Adjustment Disorder are not met as criteria E provides ‘Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.’
In relation to the date of onset of the Applicant’s depressive illness, Associate Professor Damodaran’s opinion is that this condition became clinically identifiable by 9 January 2021. Whereas she had ‘some emotional distress and emotional symptoms’ before this date, she did not have a pre-existing psychiatric condition. Accordingly, the Applicant’s depressive illness ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ Dr Cocks’ view is that the Applicant’s condition is pre-existing as evidenced by the fact that she had a pre-existing vulnerability to the development of depression, and the evidence in the notes of the clinical psychologist (Ms Bridgford) that the Applicant noticed a general deterioration in her mental health towards the middle of 2020. In Dr Cocks’ opinion, the workplace incidents ‘contributed an exacerbation’ of the Applicant’s condition. The medical evidence is therefore inconclusive as to the date of onset of the Applicant’s condition.

The evidence of the Applicant’s colleagues is that they noticed a decline in her mental health following her return to work after the death of her father in December 2019. During 2020, and prior to the first workplace incident on 5 December 2020, there were multiple instances of reports by her colleagues about the Applicant appearing to be ‘more withdrawn’, ‘rarely seen smiling or joking with colleagues’, looking ‘upset and cranky’ and being ‘less enthusiastic about what she was doing at the airport and her purpose.’ It was also noticed that ‘she appeared to be a lot more depressed in her attendance and just her overall well-being.’ Whereas these reports by her colleagues of the Applicant’s demeanour are obviously not professional assessments of her mental health condition during 2020, they do indicate that she was at least suffering symptoms of depression prior to the first workplace incident in early December 2020. This lends support to a finding consistent with Dr Cocks’ view that the Applicant had a pre-existing psychological condition which was exacerbated by the workplace incidents.
However, for the reasons that follow, whether the workplace incidents caused the Applicant’s condition or exacerbated a pre-existing condition is not determinative of whether the Respondent is liable under section 14 of the SRC Act. The Tribunal must however be satisfied that the Applicant’s condition satisfies the requirements of section 5A of the SRC Act, which first requires consideration of whether the Applicant’s condition, or exacerbation of an existing condition, is a ‘disease’ as defined in section 5B for reason that it is an ‘ailment’ or an ‘aggravation’ of an ‘ailment’ as defined in section 4 of the SRC Act:
Is the Applicant’s condition an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in section 4 of the SRC Act?
The Tribunal finds that, on the basis of the evidence before it specifically the medical evidence, the Applicant suffered from a depressive illness, specifically Major Depressive Disorder, and that this satisfies the definition of an ‘ailment’ in section 4(1) of the SRC Act in that it is a ‘defect’ or ‘disorder’ of ‘gradual development’. Given the broad and circular definition of an ‘ailment’ which includes ‘a morbid affection of the body or mind’[195] and which ‘is intended to cover the whole range of physical and mental illnesses from major to minor ones’,[196] the Applicant’s claimed condition can be characterised as an ‘ailment’ under section 4(1) of the SRC Act.
[195] Comcare and Mooi (1996) 69 FCR 439 at [10].
[196] Ibid.
For the ‘ailment’ to be a ‘disease’ for the purposes of section 5B(1) of the SRC Act it must have been ‘contributed to, to a significant degree by the employee’s employment.’
Was the Applicant’s ailment ‘contributed to, to a significant degree’, by her employment with the ABF, such that she suffers a ‘disease’ under section 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in section 5A(1)(a)?
As Mortimer J noted in Comcare v Reardon,[197] ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.
[197] [2015] FCA 1166 at [75].
In Comcare v Power,[198] Katzmann J discussed the meaning of ‘to a significant degree’ in section 5B(2) of the SRC Act, which is defined in section 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’,[199] and further that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.[200] Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in section 5B of the SRC Act which requires the employment to have contributed ‘to a significant degree’ was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated:[201]
‘There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.’
[198] (2015) 238 FCR 187.
[199] Ibid at [78].
[200] Ibid at [82].
[201] Ibid at [93].
In Su v Comcare,[202] Member Webb expressed the requirement of ‘contribution to a significant degree’ when approving of Justice Finn’s approach to interpretation of this phrase in Comcare v Sahu-Kahn,[203] as follows:
‘When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).’
[202] [2011] AATA 934 at [5].
[203] (2007) 156 FCR 536.
On the basis of the evidence before it, and for the reasons that follow, the Tribunal finds that the Applicant’s employment, specifically the three workplace incidents, did not contribute to her ailment, or the aggravation of her ailment, to a significant degree.
Associate Professor Damadoran’s opinion is that the main factors contributing to the Applicant’s ailment are her concerns about what she described as ‘the alleged lack of support’ and the ‘accusation that she was unreliable and her perception that she was not being understood and they did not understand mental health issues’. Whereas he acknowledged that it is ‘difficult to isolate the contribution’ of these employment factors to the Applicant’s condition, in his opinion they ‘are the predominant factors which could contribute at least 70%.’[204] Associate Professor Damadoran noted that there were non-employment factors, namely the Applicant’s grief in relation to the death of her father and the loss of her sister’s unborn child which also were ‘significant’ and made her ‘highly vulnerable.’[205]
[204] Exhibit R2, R10, 289.
[205] Ibid.
Dr Cocks’ opinion is that the work-related incidents were not ‘substantial’ in their contribution to the Applicant’s development of Major Depressive Disorder. While they are ‘relevant in their perpetuation of the condition’ they need to be viewed ‘in the context of the substantial nonwork-related psychosocial stress’ she suffered prior to and following the date of the claimed injury. He concluded that while the workplace incidents were ‘relevant’, they ‘should not be considered as causative to [the Applicant’s] diagnosed psychological condition. In his oral evidence, Dr Cocks did not agree that the workplace incidents contributed to an exacerbation of the Applicant’s condition ‘to a degree that is substantially more than material.’
In reaching a view as to whether the employment factors contributed to a significant degree to the Applicant’s ailment, the Tribunal has given greater weight to the opinion of Dr Cocks. As outlined above, unlike the other medical experts, including Associate Professor Damodaran, only Dr Cocks received and considered all the relevant material including the summons documents and was cross-examined on his opinions. Whereas Associate Professor Damodaran examined the Applicant on 11 August 2021, which is closer in time to the date of the claimed injury, she gave him a limited history which did not include her complicated relationship with her father or the events that led to his suicide. Nor did not mention that she had previously been prescribed an anti-depressant or that she had a history of childhood anxiety. As Associate Professor Damodaran did not give evidence at the hearing, he did not have the opportunity to explain whether this information may have caused him to change his view about the contribution of non-employment factors. Nor was he given the opportunity to explain how he reached the view that the employment factors were ‘predominant’ and ‘could contribute at least 70%’ to the development of the Applicant’s ailment. As Dr Cocks noted, Associate Professor Damodaran did not explain in his report how he calculated this 70% work-related contribution to the Applicant’s condition.
Accordingly, having given greater weight to Dr Cocks’ opinion as to the work contribution to the Applicant’s condition, the Tribunal is satisfied on the balance of probabilities that the Applicant’s employment did not contribute, to a significant degree, to her ailment. Accordingly, the ailment does not satisfy the definition of ‘disease’ in section 5B(1) of the SRC Act.
In reaching this finding, the Tribunal also has had regard to the factors in section 5B(2) of the SRC Act which the Tribunal ‘may’ take into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment.
(a) Duration of employment
The Applicant has been employed by the ABF since 2018 and commenced her role as an APS3 officer in Aviation Traveller, working in airport operations at the Sydney International Terminal Sydney in October 2019. She was therefore a relatively inexperienced officer when she encountered difficulties in the workplace during 2020, including interactions and unpleasant conversations with her colleagues and supervisors. The longevity of her employment is a relevant factor in considering the work contribution to the Applicant’s ailment, as she may not have fully developed the resilience she requires for the role, for example, appreciating that when comments are made about her work behaviour these are invariably to ensure that operational requirements are being met and are not personal criticisms or attacks on her character. The Tribunal finds that the Applicant’s relatively limited period of employment in her role is a factor which would increase the impact of perceived criticism in the workplace on her mental health and the development or exacerbation of the ailment.

(b) Nature of, and particular tasks involved in, the employment

The Applicant’s duties at the airport involved conducting passenger processing and enforcing customs and migration legislation at the border. These involve activities that are integral to Australia’s border security. The Applicant and her colleagues work in a high pressure environment where it is essential that officers are in their allocated positions for the duration of their shift, and that they can be relied on to perform their duties in a disciplined manner. The nature of the Applicant’s work duties is relevant in considering the contribution of her employment to her ailment, in that disciplined attendance is a central requirement of her role, and it would be expected that it be a priority of those charged with ensuring that operational requirements are met. The tasks the Applicant’s role involved diminish the relative contribution of work-related factors to her ailment.
(c) Any predisposition of the employee to the ailment or aggravation
The evidence before the Tribunal is that the Applicant had a pre-disposition to depressive illness if not a pre-existing mental health condition prior to the date of claimed injury in January 2021. The Applicant denies that she took the anti-depressant that was prescribed to her in 2013, however Dr Cocks’ evidence is that her doctor must have considered that this medication was indicated for her condition at the time.[206] There also is evidence before the Tribunal that the Applicant suffered from anxiety as a child. This pre-disposition to a psychological illness decreases the relative contribution of work-related factors to the Applicant’s ailment.
(d) Any activities of the employee not related to employment
[206] Transcript of proceedings, 10 August 2022, at 120.
There are no non-work-related activities relevant to the Applicant’s ailment other than the health matters detailed in (c) above.
(e) Any other matters affecting the employee’s health
There are no other matters affecting the Applicant’s health that are relevant to the Applicant’s ailment.
On the basis of the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that the Applicant’s ailment was contributed to, to a significant degree, by her employment. Accordingly, her ailment is not a ‘disease’ as defined by section 5B(1) and it follows that she did not suffer an ‘injury’ as defined by section 5A(1)(a) of the SRC Act .
Having found that the Applicant’s ailment was not contributed to, to a significant degree, by her employment and that accordingly, her ailment is not a ‘disease’ as defined by section 5B(1), it is unnecessary to consider whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action taken in a reasonable manner’ by the ABF within the meaning of section 5A(2), such that it is excluded from the definition of ‘injury’ in section 5A(1) of the Act. However, for completeness the Tribunal has considered whether, had the Applicant’s ailment been contributed to, to a significant degree by her employment, it nevertheless is excluded from being a compensable ‘injury’ under section 5A(1) for reason that it was suffered as a result a ‘reasonable administrative action taken in a reasonable manner’ by the ABF within the meaning of section 5A(2).
Was the ailment suffered by the Applicant a result of ‘reasonable administrative action taken in a reasonable manner’ by the ABF within the meaning of section 5A(2)?
To determine whether the ailment suffered by the Applicant is excluded by section 5A(2) from being a compensable ‘injury’ under section 5A(1), it is necessary to determine the following:
(a)Were the conversations and meetings between the Applicant and her supervisors on 5 and 25 December 2020 and 9 January 2021 to discuss her workplace behaviour and their concerns about her mental health (‘the workplace meetings’) ‘administrative action’ taken in respect of the Applicant’s employment?
(b)Was the administrative action ‘reasonable’?
(c)Was the action ‘taken in a reasonable manner’?
(d)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?
(a) Were the workplace meetings ‘administrative action’?
The term ‘administrative action’ is not given any special meaning under the SRC Act. In Commonwealth Bank of Australia v Reeve (‘Reeve’),[207] Rares and Tracey JJ held that ‘administrative action’ referred to in the exclusion part of section 5A(1):[208]
‘… was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
…The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.’
[207] [2012] FCAFC 21; (2012) 199 FCR 463.
[208] Ibid at [57] and [60].
Having considered the Explanatory Memorandum to the Bill that introduced the amendments to the SRC Act, Rares and Tracey JJ observed:[209]
‘Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).
However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.’
[209] Ibid at [73]-[74].
The evidence before the Tribunal is that the workplace meetings between the Applicant and her supervisors were in relation to her workplace behaviour and the performance of her duties, including how these were being impacted by her mental health condition. None of the meetings involved taking disciplinary action against the Applicant nor did they purport to impact on her contract of employment. The workplace meetings were to ‘define or delimit or supervise the employment, job or task entrusted’ to the Applicant or to give directions to her and explain how these are to be performed. They were for the purpose of discussing the manner in which the Applicant was to carry out the employment for which she was engaged. As Rares and Tracey JJ in Reeve explained, this is not ‘administrative action’ as contemplated in the Act. Accordingly, the Tribunal is not satisfied that the workplace meetings were ‘administrative action’ for the purposes of section 5A of the SRC Act. It follows that any ailment the Applicant suffered as a consequence of the workplace meetings (had they contributed to her ailment to a significant degree) would not be excluded by section 5A(2) from being a compensable ‘injury’. If the Tribunal has mischaracterised the nature of the workplace meetings and they are ‘administrative action’ it is necessary to consider whether it was ‘reasonable’.
(b) Was the administrative action ‘reasonable’?
The Tribunal finds that the workplace meetings have characteristics similar to the examples of ‘reasonable administrative action’ listed in section 5A(2), specifically (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment.

The Tribunal notes that the examples in section 5A(2) are not exhaustive, and while the workplace meetings may not neatly fit within the specific actions listed in section 5A(2), they have a close similarity with these examples.
The Tribunal is therefore satisfied that if the workplace meetings were ‘administrative action’ they satisfy the definition of ‘reasonable administrative action’ for the purposes of section 5A(1) of the SRC Act.
(c)Was the administrative action ‘taken in a reasonable manner’?
Whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[210]
[210] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61].
In Drenth and Comcare, Deputy President Jarvis and Professor Ben-Tovim explained:[211]
‘To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare.’
[211] [2011] AATA 582 at [75] and [76].
In Von Stieglitz and Comcare, Senior Member Creyke and Member Miller stated:[212]
‘Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.’
(emphasis added)
[212] [2010] AATA 263 at [67].
The Federal Court in Comcare v Martinez (No 2)[213] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (‘Keen’)[214]:
‘Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.’
[213] [2013] FCA 439 at [83].
[214] [1998] SASC 7056; (1998) 71 SASR 42.
The Full Court in Keen found:[215]
‘In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.’
(emphasis added)
[215] at [63] Cited with approval by Cowdroy J in National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].
The Tribunal finds, based on the evidence before it, and for the following reasons, that the ‘reasonable administrative action’ was ‘taken in a reasonable manner’ by the Applicant’s employer.
The Tribunal is satisfied that the workplace meetings were conducted in a manner which were professional and took into account both the operational needs of the unit and the attributes and circumstances, including the emotional state, of the Applicant. In the meeting between Ms Hay and the Applicant on 5 December 2020, which followed her verbal altercation with Ms Erener, Ms Hay displayed judgment and a willingness to listen, was sensible and moderate, and did not expect too much. She informed the Applicant, who was at the time a relatively junior officer, of the expected protocols for discussing workplace matters with her supervisors. Ms Hay also inquired about the Applicant’s mental health and made her aware of the availability of EAP support. Further, she asked the Applicant about her preferred workplace role, and said she would do her best to accommodate her preference. The Tribunal is satisfied that if this meeting was ‘administrative action’ it was ‘taken in a reasonable manner.’
The meeting between the Applicant and Mr Mercer, also attended by Ms Carrero, on 9 January 2021 took into account the Applicant’s emotional state and her vulnerabilities. The content of the meeting was balanced and not disproportionate to what was required, namely informing the Applicant that her mental health was impacting some aspects of her work behaviour and strongly encouraging her to seek professional help. Whether this meeting was ‘reasonable’ does not involve determining whether the action could have been done more reasonably or in a different way. The meeting could have been held later in the day; it could have occurred the following day; and it could have been deferred until the Applicant had chosen her own support person to attend the meeting. The fact that there were alternative times the meeting could have been held or that another support person could have attended does not detract from the reasonableness of the meeting that occurred on 9 January 2021.
In summary, the Tribunal is satisfied that, assessed objectively and taking into account all the circumstances, the workplace meetings (if ‘administrative action’) were ‘taken in a reasonable manner’.
The Tribunal is therefore satisfied that the workplace meetings (if ‘administrative action’) would be ‘reasonable administrative action taken in a reasonable manner’ as contemplated by section 5A(1) of the SRC Act.
(d) Was the condition suffered by the Applicant ‘as a result of’ the administrative action?
The Full Federal Court in Lim v Comcare,[216] applying Comcare v Martin,[217] explained that to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that the Applicant would not have suffered the ailment if the administrative action had not been taken.[218] The Court explained:
‘… where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.’
[216] [2017] FCAFC 64 at [41].
[217] [2016] HCA 43; 339 ALR 1; 91 ALJR 29 at [45].
[218] See also Hollis v Comcare [2017] FCA 558, at [5].
On the basis of the evidence before it, particularly the medical evidence, the Tribunal is not satisfied that the Applicant would not have suffered the ailment if the workplace meetings (if ‘administrative action’) had not been taken.
CONCLUSION
The Tribunal is not satisfied that the Applicant suffered an ‘injury’ for the purposes of section 5A of the SRC Act for which the Respondent is liable to pay her compensation under section 14 of the Act.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..................................[SGD]......................................
Associate
Dated: 24 January 2023

Date(s) of hearing: 9, 10 and 11 August 2022

Applicant: Self-represented

Counsel for the Respondent: I. Sekler, Australian Government Solicitor

Solicitors for the Respondent: S. Johnson, HBA Legal

Date(s) of hearing:	9, 10 and 11 August 2022
Applicant:	Self-represented
Counsel for the Respondent:	I. Sekler, Australian Government Solicitor
Solicitors for the Respondent:	S. Johnson, HBA Legal