Background
Background to the litigation
On 2 April 2019, the Respondent affirmed the determination to refuse the Applicant’s claim for compensation.[4] As a result the Applicant sought review of that reviewable decision by this Tribunal.[5][4] Exhibit 1, T Documents, T22, pages 236-244, Reviewable Decision.[5] Exhibit 1, T Documents, T2, pages 4-11, Application for Review of Decision. BACKGROUND The Applicant commenced employment with the AFP on 30 June 2008.[6] Prior to joining the AFP, the Applicant was employed by the Queensland Police Service (QPS) from 30 May 1994 to 29 June 2008.[7][6] Exhibit 1, T Documents, T6, page 36, Workers’ Compensation Claim.[7] Exhibit 1, T Documents, T17, page 203, Applicant’s CV. On 11 June 2018, the Applicant transferred to ACT Policing as part of a six month rotation from Brisbane Aviation and was assigned to Team 6 at the Woden station.[8][8] Exhibit 2, Supplementary T Documents, ST1, page 253, Professional Standards Proposed Finding Investigation Report. According to the Professional Standards Proposed Finding Investigation Report:[9][9] Exhibit 2, Supplementary T Documents, ST1, pages 252-270, Professional Standards Proposed Finding Investigation Report.1.4On 15 October 2018, towards the end of the six (6) month temporary transfer to ACTP, [the Applicant] was sent an email request from [redacted] requesting him to complete a PDA for this time period;1.4.1[the Applicant] spoke with [redacted] in relation to the request and stated words to the effect he believed ‘everyone out to get him’ and he would ‘CRAMS Woden members if he was [expletive] over’; and1.4.2these conversations gave rise to [redacted] making notes in his official police notebook N34048 pg 76. [Redacted] made an observation [the Applicant] appeared to be distressed and paranoid in his behaviour. 1.5 On 21 October 2018, [redacted] spoke with [the Applicant] in relation to the conversation on 15 October 2018 which he recorded in his official police notebook N34047, pg 1. At this time [the Applicant] said words to the effect:1.5.1not to include any negative comments about teamwork Issues in his PDA:1.5.2he is a victim of bullying, lack of leadership and failure by the AFP to adequately train him;1.5.3if you put any negative comments in the PDA I have a right to reply; and 1.5.4ACT Policing had triggered pre-existing Post Traumatic Stress Disorder (PTSD).1.6On 8 November 2018, [redacted] sent [the Applicant] a further email requesting he complete his portion of the PDA so [redacted] could finalise it. [The Applicant] would be returning shortly to Brisbane after his rotation in ACTP.1.7 About 11.20am the same day [the Applicant] and [redacted] entered the Sergeant’s office and commenced a discussion about the topics listed in [the Applicant’s] PDA. [The Applicant] asked [redacted] if any negative comments would be placed in his PDA to which [redacted] Owens stated. ‘one paragraph would detail the issues he had with working as part of a team’. The paragraph in question read as follows; 1.7.1 during Kevin’s time in ACT Policing, he experienced minor issues relating to working as part of a team. This caused some administrative issues and affected productivity within the team. 1.8 Upon hearing this, [the Applicant] has allegedly become irate and raised his voice. He stated words to the effect ‘the comments would not be accepted’. [The Applicant] began swearing, said it was ‘[redacted expletives]’, he became physically aggressive, kicking a chair and pacing around the room. 1.9[Redacted] was intimidated by the actions of [the Applicant] to such an extent he became aware and remembered he was no longer in possession of his accoutrements, as he had handed them in earlier the same morning. [Redacted] observed the hood of [the Applicant’s] Glock holster was also lowered. [Redacted] has not nominated seeing [the Applicant] lower it, or manipulate it in any way. 1.10 [Redacted] has attempted to placate [the Applicant] and suggested they go outside to talk further, to de-escalate the situation and because officers in the day room would hear what was being said. [The Applicant] has continued yelling and swearing and stated words to the effect ‘if the comments remained on his PDA that he would CRAMS everyone’. [The Applicant] has then walked out. 1.11 About 11.42am the same day, [the Applicant] has later requested a meeting between himself, [redacted] and fellow team member, [redacted]. A meeting was organised for later in the day. [The Applicant] remained argumentative and continued to swear during conversations in the day room with [redacted]. This was in front of junior staff also present in the day room, prior to the second meeting. …1.13 About 12.55pm the same day, [redacted], [the Applicant] and [redacted] commenced the meeting. [The Applicant] questioned the integrity of [redacted] and referred to another female team member as ‘a [expletives]’. [The Applicant] further questioned the integrity of [redacted] and said words to the effect of ‘I don’t know if I should CRAMS you or take you downstairs to flog you’ to [redacted]. …1.16 A discussion was held with [redacted] who accepted the representations of [redacted] and [redacted], [the Applicant] was stood down from further duty by [redacted] and his firearm was surrendered. [Footnotes omitted]
Evidence
Evidence Before The Court
Section 4 of the SRC Act defines ailment as any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development).EVIDENCE Applicant’s Evidence The Applicant provided a comprehensive statement dated 14 February 2020 outlining his life from childhood up until shortly after he resigned from his employment with the AFP in 2019.[30] [30] Exhibit 4, Joint Hearing Bundle, A3, pages 15-40, Applicant Statement. Relevantly the Applicant outlined that:[31][31] Exhibit 4, Joint Hearing Bundle, A3, pages 15-40, Applicant Statement.·He joined the Army Reserves in 1990 as an Officer Cadet. He graduated from Officer Cadet School and in 1993 was commissioned into the Australian Army reserve as a Lieutenant. In October 1993 he suffered a training accident where his leg was broken and foot was dislocated for which he required hospitalisation and surgery and was unable to work for several months. In February 1998 he became the Platoon Commander of the local 51st Battalion FNQR Army Reserve Unit.·In May 1994, having passed the physical fitness test, he was accepted into the Queensland Police Service Police Academy. He graduated from the QPS Academy in December 1994 and was posted to the Toowoomba Police Station to perform General Duties.·He was married in October 1996. His marriage produced three children.·During his employment as a member of the QPS, which ended in mid-2008, he had undertaken a number of different postings and undertook a variety of roles. He outlined a number of incidents he witnessed or investigated during that period, including but not limited to fatal or serious road crash incidents, suicides and discovery of deceased persons. He also outlined an incident where his family were threatened.·He received a Bravery Award for his actions at an incident on 6 January 1997.·At various times throughout his QPS employment his family life suffered, he was drinking on his days off, developed stomach problems, had troubles sleeping and became hyper-vigilant, was stressed and anxious about his work and had issues with his superiors. He applied for other positions when he had issues with his supervisors, he enjoyed his work when he got along well with his team and did not feel he was being targeted, hounded or that his good work was not being recognised.·At various times he was angry and frustrated with decisions being made by his supervisors.·In 2007, he applied for the AFP International Deployment Group (IDP) and was subjected to a full day of Psychometric and Aptitude Testing during which he remembers speaking with a psychologist about his policing experiences, during which he disclosed the issues and events he had experienced as a Police Officer. ·On 1 June 2008, he was accepted into the AFP and resigned from the QPS on good terms after 14 years of service. ·After attending relevant training, he was deployed in September 2008 to the Solomon Islands as a member of the Regional Assistance Mission Solomon Islands (RAMSI), Participating Police Force (PPF). He outlined his duties, postings and operations during the deployment as well as the response received by the PPF from the local police, militants and towns people. He described experiencing, attacks on the police post, investigating a missing child notification and assault on a child, being surrounded by a group of 50 people with rocks when attempting to talk to a driver of a vehicle and frustrations with the way in which matters were handled.·After the incident with the large group of people (which occurred in approximately February 2010) he had trouble sleeping, felt anxious and began to drink on his days off. He did not talk to anyone about what was going on. It was then that he struck up a friendship with a New Zealand woman who was part of the New Zealand Police Contingent, working as a communications operator. She was the only person he felt he could talk to about his experiences.·Shortly after that incident he went on a break home to Australia, his father was ill and his marriage was in trouble. After he returned to the Solomon Islands his wife posted on Facebook about his affair with the New Zealand woman. He deleted Facebook and accepted his marriage was over. He was then shunned by all of his friends and some of his extended family and was very depressed and again started to drink heavily. He began a relationship with the New Zealand woman until she finished her mission.·He outlined that at various times during his deployment to the Solomon Islands and on breaks home he felt hypervigilant, had trouble sleeping, began to drink heavily and was angry and easily upset.·He outlined various instances that left him frustrated during his deployment to the Solomon Islands due to local practices.·In November 2010, he finished his mission in the Solomon Islands and returned home, moving back into the family home.·In December 2010, his father passed away and he was very depressed and started attending counselling sessions with Mr Langley.·Between 2011 and June 2018, he undertook a number of different roles in the AFP which included positions at the Gold Coast, Brisbane, Cairns and Perth Airports, as part of a task force investigating a riot in an Immigration Detention Centre and a deployment to Christmas Island.·In May 2011, he was transferred to the Gold Coast Airport and only saw his children every second weekend. He was very depressed and would have regular counselling sessions with Mr Langley, he had trouble sleeping and was very angry and began to hate going to work, he started to have issues with other members and felt that he was not liked by some of his team, however received good feedback from his team leader because of his work ethic and diligence. ·In March 2013, he found it difficult to fit into his new team and felt the Team Leader was very controlling. He felt that he was always tasked with the worst duties by the Team Leader and that would affect his chances of further deployments. He felt unduly targeted and that started to affect his health, he had trouble sleeping and developed stomach issues due to anxiety. He reported this to his general practitioner who provided him with a two-week medical certificate to allow him to recover. He was also receiving counselling from Mr Langley in relation to his marriage break down and his work-related issues. He was isolating himself from friends and family and began to be extremely sensitive and constantly angry. ·In June 2015, he transferred from IDG to a permanent role as a team member in Aviation Protection at the Brisbane Airport. The previous Team Leader had transferred and the workplace had changed, he fitted in well with his new team. He outlined incidents in relation to passenger deaths, suicides and assaults by intoxicated passengers.·In February 2017, he experienced flashbacks of the fatal crashes he had investigated at specific locations while working for the QPS.·In March 2017, he made an arrest and was later informed that he did not follow correct procedure and that he would be subject to formal investigation. ·In June 2018, he started a short-term secondment to ACT Policing at the Woden Police Station to perform General Duties. He was not given any induction training on his arrival and did not have experience or knowledge of ACT Policing procedures or legislation. At that time, he had 24 years of experience as a police officer and realised that he was working with other police much younger than him and with less policing experience. His Team Leader only had 8 years of experience. He held the rank of Leading Senior Constable which was senior to every other team member at the station. ·He seemed to fit in well and got along with everyone except Acting Sergeant Campbell who he felt appeared to be dismissive and short with him in conversation, he got the impression that he did not like him.·He commenced work rotating every day with a different partner within the team, he needed assistance in completing the case files as he was unsure of the ACT procedure which appeared to be totally different to what he had been taught during his AFP service.·The nature of the work was like what he experienced in the QPS, however the legislative powers of investigation were different and somewhat limiting as the ACT Government appeared to be more conservative.·He outlined different situations he was called to attend and investigations he undertook during his work with ACT Policing, which included, but were not limited to, sudden deaths, discovery of a dead body, being first response to a siege situation involving methamphetamine, an OMCG shooting, a sexual assault of a fourteen-year-old, many alcohol and drug related disturbances, domestic violence incidents, vehicle crashes and arson offences.·As his workload increased, he became increasingly frustrated and stressed as he needed constant help to ensure he followed ACT procedures. He felt he was singled out for certain tasks and was more regularly tasked to perform duties on the front counter than anyone else.·He began to notice a change in himself. His sleep was broken and his separation from his partner triggered many negative emotions which he had experienced when deployed overseas. He felt he had no support network and could not talk to his partner about his experiences. ·He felt that the traumatic experience of working day-to-day in first response policing triggered memories and emotions from previous traumatic experiences during his service with QPS and AFP, he started to isolate himself from his colleagues and began to grind his teeth.·He would frequently relive traumatic events when he drove near places those events had occurred and was becoming angry and irritable at work and believed that was starting to affect his work relationships.·He described attending a report of a breach of a Family Violence (FV) Protection Order and his subsequent interactions with the Constable with whom he was partnered for that day. He had corrected the Constable and reported the interaction when he returned to the station. In a follow up meeting he felt he was forced to apologise, however, the wrong information that had been provided to the victim of the FV by the Constable was not addressed. He noticed that after this incident the younger team members of the shift began to avoid him, he felt like he was being ostracised.·He described attending a disturbance at an aged care facility from which an allegation was made that he intentionally shoulder barged Acting Sergeant Carter. He became frustrated during this attendance as he was going backwards and forwards between the management of the aged care facility and Acting Sergeant Carter, who he considered was having a personal conversation. On return to the station, he was called into the Sergeants Office by Acting Sergeant Campbell who he considered appeared angry and was told that his attitude was doing him no favours, that no one wanted to work with him and that he was insubordinate and rude. He was taken aback and upset by the way in which he was spoken to and how the matter had been dealt with.·He agreed to an offer to return to Brisbane three weeks early and did his best to not cause further issues during the remainder of his tenure.·A few days later he was approached by Acting Sergeant Owens regarding the finalisation of his Performance and Development Agreement (PDA), who stated that he would be making a positive report however would have to mention some of the difficulties he had encountered. In the discussions with Acting Sergeant Owens he informed him that he was suffering from PTSD but believed that on his return home the injury would take care of itself.·A few days later AFP Welfare rang him and he spoke to them about how he was feeling, however nothing more came of the conversation.·In his final week he was tasked by prosecutions to complete a full brief of evidence and three Summons Briefs. His request for assistance to complete the paperwork by being rostered on administrative shifts was refused.·At the time his partner’s close family friend passed away and he chose not to attend the funeral and remained in ACT Policing as he felt compelled to complete the outstanding Court Briefs as a priority. This decision caused considerable stress on his partner who was suffering and needed his support, he felt that he had failed her.·On 7 November 2018 he was subject to a disciplinary interview by the Acting Chief Police Officer in relation to a matter in March 2017, it was an honest mistake that caused him considerable stress and embarrassment.·He felt that 8 November 2018 was a tipping point. He had a meeting with Acting Sergeant Owens in relation to his PDA. When he was shown the appraisal of his performance during his deployment to ACT Policing he read one paragraph regarding a comment that he had problems working in a team and although the majority was very positive, he got extremely emotional and upset. He was shaking and a wave of anger came over him, he stood up and swore at the computer, with his foot he pushed the chair he was sitting on back against the wall and walked out.·A short time later Acting Sergeant Owens approached him and he asked him for a three-way meeting with Acting Sergeant Campbell. At about 1 pm Acting Sergeant Campbell returned to the station and they had a meeting. He felt that everyone had turned against him and he got emotional and angry as he realised the meeting was futile, he felt unable to cope and left the meeting angry and returned to work.·About an hour later the Officer in Charge (OIC) of the Woden Police Station asked him to step into the sick room where there were two other AFP Members who he did not know. He was asked to remove his accoutrements and was informed that he was being stood down as he had threatened other staff. He was then escorted from the building by the two members who he later found out were from AFP Welfare.·He drove to his accommodation and felt very depressed and emotional, he drank heavily that night so he would pass out and sleep.·The next day the OIC contacted him and asked him to attend a meeting on 13 November 2018. ·On 13 November 2018, he attended the Woden Police Station and was handed his personal belongings from his locker and was informed that the Deputy Chief Officer had issued a written notification of the revocation of his Use of Force permit and that his behaviour and demeanour had created a sense of apprehension and fear in other police officers.·On 14 November 2018, he spoke to an AFP psychologist who recommended a mental health treatment plan.·He returned to Brisbane and saw his local general practitioner, Dr Ho who issued a medical certificate and referred him to see Dr Nguyen.·He sought counselling from an AFP psychologist and spoke to AFP Welfare, and his personal counsellor, Mr Langley. He stopped drinking and attended counselling at Benestar with his partner.·On 27 November 2018, he lodged a compensation claim with the Respondent regarding his injury.·In about January 2019, he commenced treatment with Dr Nguyen and in May 2019 he was cleared by Dr Nguyen to return to work with the AFP at the Brisbane Airport. He returned to work after passing all the required requalification training and his Use of Force permit was reinstated.·In about August 2019, he was contacted by AFP Professional Standards and interviewed in relation to the incident that had occurred on 8 November 2018. ·In about September 2019, he was given the PRS report in relation to the investigation and was stood down from duty and served with a show cause notice. He submitted his response to the show cause notice in October 2019 and was successful in being reinstated with the condition that he continued his medical treatment.·He was soon thereafter advised that he was the subject of an investigation in relation to his disclosure of information to his counsellor Mr Langley regarding the investigation. He was advised that as he had not obtained permission to speak about those matters with Mr Langley, he had breached the AFP Act. He believed at the time that a counselling session was exempt. He was informed that he would be stood down and would be served with a new show cause notice.·He tendered his resignation on 15 December 2019 with effect from 20 February 2020. He felt he was not psychologically well enough to subject himself to a further show cause process.·He undertook further training to find a new career.·He had been successful in attaining a part time position as a Security Officer at South Bank subject to him completing a security licence.·He continued to attend monthly appointments with Dr Nguyen and Mr Langley.