Cho and Comcare (Compensation) - [2017] AATA 175

Cho and Comcare (Compensation) [2017] AATA 175 (10 February 2017)
Division:GENERAL DIVISION
File Number(s): 2014/5236
Re:Kelvin Cho
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:10 February 2017
Place:Sydney

The decision under review is affirmed.
.............................[sgd]..............................
Ms N Isenberg, Senior Member
Catchwords
COMPENSATION - Commonwealth Employees - nature of injury – adjustment disorder with mixed emotional features - whether disease – date of injury – whether caused by employment – whether pre-existing condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, (2), 7(7), 14(1)
Cases
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve and Anor (2012) 199 FCR 463
Meaney and Comcare [2012] AATA 352
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316
REASONS FOR DECISION
Ms N Isenberg, Senior Member
10 February 2017
DECISION UNDER REVIEW

The Applicant, Kelvin Cho, claims that he suffers depression, anxiety and insomnia, diagnosed as an adjustment disorder with mixed emotional features, principally as a result of events which occurred in his workplace in the national office of the Department of Immigration and Citizenship (now Department of Immigration and Border Protection (‘the Department’)) from 16 May 2013 onwards.
In his claim the Applicant asserted that his condition developed as a result of his supervisor verbally abusing and spitting on him on 16 May 2013, slamming her office door into his face on 17 May 2013 and making false accusations which led to his suspension from work on 29 May 2013, collectively ‘events relied on’.
In the reviewable decision dated 3 October 2014 the Review Officer affirmed the determination dated 13 May 2014 which had disallowed the claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) in respect of the claimed condition. While the delegate had been satisfied that the Applicant suffered from an “ailment”, namely an “adjustment disorder with anxious and depressed mood” which was significantly contributed to by his employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the “injury” was ‘suffered as a result ofreasonable administrative action taken in a reasonable manner’. The Review Officer was satisfied that the Applicant’s condition was ‘as a result of’, at least in part, the decision on 29 May 2013 to suspend the Applicant, and was satisfied that this suspension was undertaken in a reasonable manner.
BACKGROUND TO THE CLAIM
The Applicant was employed in 2013 as a Legal Assistant (APS3) at the Department in Canberra. A detailed account of the events relied on was set out in a lengthy statement attached to his claim for compensation dated.
In its Statement of Facts, Issues and Contentions (‘SFIC’) the Respondent contended that Mr Cho’s employment did not contribute, to a significant degree, to his ‘ailment’ because by May 2013, if not earlier, he was already suffering the effects of an underlying and constitutional psychotic condition. Further, to the extent that his condition may have worsened during his employment, the employment was not a significant contributing factor in the worsening.
In the alternative, the Respondent contended there that Mr Cho’s underlying condition was aggravated by his employment, but that that condition was contributed to, to a significant degree, by ‘reasonable administrative action taken in a reasonable manner’ with respect to his employment. It referred to:
·the decision to demote Mr Cho from his acting APS4 position at the end of March 2013;
·the meeting between Ms Calvert and Mr Cho on 16 May 2013 where she informed him she would need to discuss his work performance with her own supervisor, Mr Phillipson;
·the discussions between Ms Calvert and Mr Cho on 17 May 2013, regarding his leave “arrangement” and her request that he supply records to support that the arrangement had been approved;
·meetings involving Mr Cho, Ms Calvert and Mr Phillipson on 22, 24 and 27 May 2013, during which they raised their concerns about Mr Cho’s work performance and behaviour; and
·the decision on 29 May 2013 to suspend Mr Cho.
As to the reasonableness of these actions, the Respondent submitted that they should be considered in the context of repeated efforts to alert Mr Cho to concerns about his performance and behaviour at work; that he was difficult to manage; his behaviour and interpersonal skills caused apprehension in other staff, and; he repeatedly refused to accede to legitimate requests by his superiors.
In its submissions, the Respondent articulated its position as follows:
·that Mr Cho’s ailment arose as a result of endogenous factors unrelated to employment;
·in the alternative, or additionally, that his ailment arose as a result of the myriad psychosocial stressors which Mr Cho concedes were then pressing on him;
·that the events described by witnesses of abnormal and dysfunctional interpersonal behaviours in the workplace in the weeks preceding the events in May 2013 were themselves manifestations of extant illness, as was the incident with Ms Calvert a consequence of, by then well-established, mental health dysfunction;
·that weeks before the Applicant went off work he was psychologically unfit, though lacking insight whilst purporting to be capable of work, and that the only significance of the events in May 2013 were that they galvanised him to leave work due to the inevitable conflict between his deteriorating functioning and the requirements of his employment;
·that if there was any relevant work contributions by way of aggravation, other earlier employment events, such as those which culminated in the cancellation of his placement in another division under Ms Bloomfield and his return to Ms Calvert's supervision were also contributory; and
·that the reasonableness of subsequent actions on the part of his employer is established by the fact of serious dysfunction serially observed in his behaviour by the time that the events in May 2013, and those leading to his suspension, took place.
RELEVANT LEGISLATION
Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations.
The requisite connection between a psychological condition suffered by an employee and the employment is provided for indirectly, via the definitions of “injury” and “disease”. “Injury” is defined relevantly, in s 5A, as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
...
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 paragraph (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.
The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
Under s 7(7) of the SRC Act, a disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment “made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease”. “Disease” is defined relevantly, in s 5B as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(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.
ISSUES
In the reviewable decision, the Respondent did not dispute that the Applicant suffers from ‘an adjustment disorder with mixed emotional features’ and that this ailment is in the nature of a disease that was contributed to, to a significant degree, by the Applicant’s employment with the Department. However, the Respondent’s position at hearing was that Mr Cho’s employment did not contribute, to a significant degree, to his “ailment” because, by the time of the events relied on, he was already suffering the effects of a pre-existing psychological condition. The Applicant’s behaviour in the workplace leading up to the events relied on was said to be manifestations of an existing illness and that weeks before he went off work, he was already psychologically unfit for work. Even if his condition worsened during his employment, the employment was not a significant contributing factor in the worsening, there being multiple stressors, not just work issues.
The Respondent contended, in the alternative, that if Mr Cho’s underlying condition was aggravated by his employment, that that condition was contributed to, to a significant degree, by “reasonable administrative action taken in a reasonable manner” with respect to his employment.
Consequently, the issues may be distilled as follows:
·Did Mr Cho suffer a pre-existing psychological condition prior to the events relied on? If so, was that pre-existing psychological condition aggravated by those events?
·If he did not suffer a pre-existing psychological condition, did he suffer an “injury” as defined in the SRC Act?
·If he suffered an injury or if his pre-existing psychological condition was aggravated by the events relied on, did that occur as a result of reasonable administrative action taken in a reasonable manner?
EVIDENCE
The Applicant relied on a number of detailed statements and also gave extensive oral evidence at the hearing. Evidence was also given by:
·Olivia Cho, the Applicant’s wife
·Dr S Allnutt, consultant psychiatrist
·Dr S Yenson, consultant psychiatrist
·Lisa Harris, Director, Change and Procurement Team, Services Management Branch of the Department
·Stella Calvert, Principal Legal Officer, Legislative Services and LEGEND Section of the Department
·Peter Noakes, Director, Onshore Contract Section, Service Management Branch of the Department
·Rachel Major, Intelligence Analyst, Strategic Policy and Planning Division of the Department
·Dr A Rees, consultant psychiatrist
The hearing proceeded over six days. Both parties then made extensive written submissions.
Events leading up to May 2013
The Applicant was born in Singapore in 1975. In 1986, the Applicant arrived in Australia. While at school, the Applicant said, he was subject to bullying and racist remarks. In one altercation, he experienced a retinal detachment. He was expelled from school on 2-3 occasions for fighting, which, he said, was because he was defending himself against bullying. After completing year 12, he undertook further study at TAFE, completing a Diploma in Marketing. In 1994, he commenced working in the family’s restaurant/business.
In 2003, the Applicant graduated from Sydney University with a Bachelor of Laws. He completed a Graduate Diploma in Legal Practice at the College of Law. Following his admission in 2004, he worked as an employed solicitor, changing firms in 2005.
In 2006 the Applicant left legal practice to undertake postgraduate studies, completing a Graduate Certificate in Chinese Administrative Law in 2006 at the East China University of Political Science and Law, and a Master of Laws at Sydney University in 2007.During 2007, the Applicant was also employed by a firm of solicitors as a self-styled Senior Associate.
Between 2008 and 2011, the Applicant undertook further study at Sydney University completing a Master of International Business and a Master of Commerce.
In January 2012, the Applicant accepted a graduate position as a Legal Assistant (APS3) with the Department in its Canberra office, notwithstanding that it was at a significantly reduced salary. The Applicant lived and worked in Canberra during the week and returned to Sydney on the weekends. Mr Cho said that he found it ‘frustrating’ having to cook and clean for himself, in addition to missing his family. Throughout 2012 he undertook three graduate rotations, which were in the nature of probation. In the course of his evidence he provided some information about his first posting. He said there were ‘personality issues’ with his supervisor, Ms Choon. He said that he was critical of the Department’s treatment of refugees and told Ms Choon’s supervisor what he thought. He said Ms Choon ‘passed’ him, saying that ‘she knew the circumstances that he was under’. Of another rotation, he said there was one personality issue but he also had concerns about the format of how the work should be done.
In December 2012, at the end of his graduate year, the Applicant was placed in the Legislative Services and LEGEND section as an APS3, where he was supervised by Principal Legal Officer, Stella Calvert.Ms Calvert said that the Applicant told her that he was disappointed not to have been promoted at the end of his graduate year and was upset that other graduates from his cohort had received promotions.
The Applicant said he was applying for executive roles. He wanted to contribute to his mother’s medical expenses, she having been diagnosed in December 2011 or January 2012 with terminal cancer. There was financial pressure on his family. At the same time, his father had been diagnosed with ‘end stage emphysema’ and was being cared for by the Applicant (although he was in Canberra), his wife and friends. He said that his faith provided solace, although Mrs Cho said that her husband was ‘sad’ because of his mother’s terminal illness and that he was not there to look after her. He said there had been ‘communication problems’ with his wife even before he had left for Canberra. The Applicant denied that these pressures had any effect on his mental health.
Shortly after he commenced in Ms Calvert’s section, the Applicant submitted an Expression of Interest for an APS5-6 role but said he was told there were none and that he was offered an acting APS4 role in the Detention section. He said he was keen to take it on so as to learn about different areas of the Department and also because it paid more, albeit marginally, than an APS3.
Ms Calvert supported his application but said he needed to be closely supervised. The Applicant was offered the role in Detention, and commenced on 22 January 2013 after his return from leave. The Applicant said his expectation was that the temporary role was for 12 months. He was under the supervision of an EL2 level Director, Lisa Harris.In a statement dated 17 September 2015, Ms Harris said that, subject to his performance, it was anticipated at that early stage that the Applicant might continue in the role indefinitely, provided he was suitable.
Ms Harris described the Applicant’s APS4 role as being ‘fairly low level’, whereas Mr Cho described it as having ‘executive work level responsibilities’. He claimed that part of his role was to provide legal and financial opinion, but Ms Harris said this was not the case. The Applicant claimed he was a participant in high level meetings, but Ms Harris said his role, as an APS4, was only to provide secretariat functions.
On 31 January 2013 the Applicant emailed Ms Harris (and others) to tell her that he had an arrangement in place to leave work early on Fridays. He also specified that his work hours were 0700 to 1500 so he could tutor his children over the internet. He said he was preparing his PhD pre-submission, that his house was in Sydney and that his mother had terminal cancer and was in and out of hospital. He cited the Fair Work Act 2009 (Cth) and the Department’s Enterprise Agreement. He wrote of his flexibility with his work hours, taking longer lunches if he needed to stay late. He referred to his role as a ‘Legal Officer’.
Ms Harris said she agreed to continue the work hours arrangement but said she would review it ‘in about two weeks’.
In his detailed statement in reply to Ms Harris (see below), he wrote that from the outset he was ignored by two staff members and he said he felt nervous around them.
In early February 2013, Jane Bloomfield joined the Detention team (as an EL1 level officer) from another agency and was assigned to work with the Applicant on process and legal analysis. The Applicant was required to report to Ms Bloomfield, although she was not his direct supervisor. The Applicant said he felt some animosity towards him and claimed that Ms Bloomfield neither understood nor accepted his role within the Detention team and made his job more difficult. He said that she did not like that he had been asked to help her ‘learn the ropes’, notwithstanding the disparity in their levels. Ms Bloomfield, he said, was ‘very dismissive’ of his offers of help.
By at least 21 February 2013 the Applicant was complaining to Ms Harris via email about Ms Bloomfield, including alleging Ms Bloomfield was ‘lying’ about him. Ms Bloomfield herself made a written complaint about the Applicant on 7 March 2013, alleging, amongst other things, that he had lied to her. Ms Major, an APS4 in the Detention team, described the relationship between Mr Cho and Ms Bloomfield as being, by March 2013, ‘toxic’.
Ms Bloomfield also allegedly made a remark about inter-racial marriages. The Applicant said while it had not been pleasant, he just ‘moved on’ and made no complaint, although he made a number of email and verbal complaints to Ms Harris regarding Ms Bloomfield. He said in cross-examination that he had a poor opinion of Ms Bloomfield’s legal ability and he thought it more appropriate that he be supervised by someone at Director level.
Mrs Cho said in her evidence that her husband was feeling frustrated because he had a new supervisor and they weren’t interacting well; he felt he wasn’t being supported. She said that he ‘gets frustrated when he’s trying to speak and people aren’t listening to him, or he’s trying to get his point across’.

Ms Harris said she had concerns about the Applicant’s conduct and his health. He said she had asked if he was working too hard and if there was anything else she should know about. He said he told her that there was no health issue, just a problem with Ms Bloomfield who ‘refused to clear [his] work’ and who had ‘denigrated his position as an APS3’. He doubted that Ms Harris was genuinely concerned about him because she had done nothing about his complaints about Ms Bloomfield. He denied that others had also complained about his conduct, until ‘the end’. He considered he had been denied procedural fairness. The Applicant said in his evidence at hearing that he felt ‘cornered’ and ‘fearful’.
Mr Noakes had observed the Applicant being what he described as ‘unusually emotionally involved’ and appeared to find it ‘hard to be dispassionate or objective about individual issues’. He observed the Applicant’s work to be impulsive and attended by an under-developed level of thinking. He emailed Ms Harris on 8 March 2013 that he had observed the Applicant becoming ‘increasingly aggressive’ towards members of his section and that his conduct had deteriorated over the previous few weeks.
At the end of March 2013, Ms Harris decided to terminate the Applicant’s acting role. There had been several incidents which concerned Ms Harris - including an incident which involved the Applicant accessing confidential security-classified information for reasons that were not related to the work he had been allocated. Ms Harris terminated his 24/7 access to the building. Ms Major said, as a result, the Applicant was very upset and she took him away from the office for a coffee, to ‘calm him down’. Ms Harris said she counselled him on 6 March 2013 and a copy of the counselling record was provided. She was also aware that the Applicant had approached staff in another area about them joining her section. She said she had not asked him to do that, and in any event, she was not looking to recruit. He had, she said, ‘pre-empted HR’ and was looking for talent in Legal. She was informed by other work areas that he was regularly going to them with discussions about collaboration. She instructed him first orally, and then in writing, not to engage in such meetings. She found him paranoid, aggressive, resistant to supervision and felt he considered himself more suited to EL2 or SES level work - far above anything at the APS level. She thought he exaggerated his contribution to enhance his own importance.
The catalyst for the decision to terminate his role was a report from a colleague that she felt uncomfortable working even near the Applicant and was worried about being alone with him.
Ms Harris met with the Applicant on 28 March 2013, who was accompanied by a support person. Ms Harris read out a prepared statement, including that since 21 February 2013 she had received regular complaints from people in the branch about the Applicant’s inappropriate behaviour. She provided examples of the type of behaviour to which she referred. She told him his performance did not consistently meet required standards. The prepared document referred to the concern by a number of people in the section about his health. The Applicant provided a detailed written response wherein he wrote in relation to some exchanges with Ms Bloomfield that he ‘felt intimidated’, ‘threatened’ and ‘really scared’.
Mrs Cho reported her husband was ‘relieved’ to be leaving the Detention section.
The Applicant, on the other hand, claimed that he left Ms Harris’ team by way of a mutual agreement that his placement in the section wasn’t ‘working out’. He said he had raised issues with Ms Harris about his ‘treatment and the lack productivity’. He said he was not able to do his job because of ‘interactions’. One such interaction ended in him swearing at Ms Bloomfield. He told Ms Harris that she needed to address issues about Ms Bloomfield because the Detention team’s dynamics were not healthy.
The Applicant returned to his substantive position as a Legal Assistant in Ms Calvert’s team on about 2 April 2013. Ms Calvert said he was sent to her because she had a reputation of being able to manage people who were under-performing. The Applicant claimed that his experiences in Detention were then ‘out of [his] mind’.
On his return, he said, Ms Calvert was aware he had ‘a disagreement’ with Detention but had said she would judge him on how he performed for her. Ms Calvert said the Applicant was initially supervised by both her and by an EL1 Senior Legal Officer, Anna Hunter. The Applicant denied he was supervised at all by Ms Hunter, whom he described as ‘very cold’, but said she would give him feedback on his work with her, and that she ‘guided’ him. He conceded that he was to follow her directions and that she was unhappy with aspects of his work performance. In his evidence he said that he had ‘expressed dissatisfaction’ to Ms Calvert about working with Ms Hunter and complained that she was not very sociable.
In the weeks that followed, Ms Calvert developed increasing concerns about the Applicant’s behaviour and performance. Consequently, she said in her evidence, ‘quite soon’ after his return to the section (2-3 weeks), she took the unusual step of personally taking responsibility for his supervision. Ms Calvert said she was concerned about his output and required the Applicant to email her daily, summarising the work tasks he had completed during that day. The Applicant said he did not find that arrangement unusual, and claimed it was actually his idea, and that it started almost from the time he returned to the section. He said that there was never any discussion that his work was inadequate, although conceded that Ms Calvert had pointed out mistakes, which he said were only those that any new starter might make.
Ms Calvert said he had ‘an inability to remain focused on one task’. He would do ‘self-directed work, ignore instruction or direction and pretty much do work as he pleased, rather than the work that was requested’.
On 10 May 2013, the Applicant was tasked to examine legal instruments to determine whether permanent visa applicants who were pregnant should be exempt from x-rays. In the course of this duty the Applicant engaged in email dialogue with an officer of Global Health NSW, which Ms Calvert said was in direct contravention of her direction. She said he held himself out as a legal officer and offered legal advice. She ultimately undertook the task she had assigned him and, even allowing for her greater experience, it had only taken 10 minutes to complete, the inference being that the Applicant had over-worked the task.
Events relied on leading up to the Applicant’s suspension
The Applicant felt that he had a productive and ‘extremely friendly’ relationship with Ms Calvert up until May 2013; she had recommended and ‘encouraged’ him to apply for several promotions and had provided references in support of his applications, although this appears to have been before he went to the Detention team. In his evidence the Applicant described their pre 16 May 2013 working relationship as ‘perfect’ and that Ms Calvert had never had cause to express any adverse sentiment about what he was doing whilst working for her.
16 May 2013
On 16 May 2013, the Applicant sent an email to Ms Calvert to the effect that he had capacity for more work. To keep him busy, Ms Calvert invited the Applicant to attend a meeting later that day regarding IT testing issues which was conducted by Rohan Chesney, an IT executive. According to Ms Calvert, the Applicant asked a question which she considered was unrelated to the content of the meeting or to the Applicant’s work. He said that she had ‘rudely stated in a terse and dismissive tone’ words to the effect: ‘don’t you talk about this, you are wasting time’. He perceived this remark to be a putdown. In her statement, dated 18 September 2015, Ms Calvert denied that she was rude or used those words, but admitted that she intervened, and said words to the effect: ‘Kelvin, that is not relevant. We don’t have the time.’ The Applicant’s evidence was that he felt humiliated and embarrassed. At the conclusion of the meeting the Applicant stayed behind and asked Mr Chesney questions.
Following the meeting, the Applicant sent Ms Calvert an email thanking her for inviting him to attend.
Earlier in the day, as required by Ms Calvert, the Applicant emailed her about the work he had completed that day. When the Applicant went to Ms Calvert’s office to say goodbye for the day and to discuss with her anything arising from that email, Ms Calvert had not had time to read the Applicant’s email, so she quickly reviewed it while he waited at her office door. She formed the view that he had performed tasks which he had not been asked to perform and asked him to explain his actions. In her statement she said that he had responded that he was working on ways to promote the section. Ms Calvert told him that she was not happy and that it was clear that he was occupied with work which he had not been tasked to do. One matter, for example was that he claimed to be mentoring a person who was a Legal Officer and therefore some levels above the Applicant’s position.
She told him she would need to raise this with her supervisor, Assistant Secretary Greg Phillipson, ‘because [she] felt [the Applicant] was failing to respond to directions’.
The Applicant’s version of the conversation was that upon greeting Ms Calvert, she began yelling at him about the work email update. Her face, he said, was red with rage. In her statement, Ms Calvert reported that, at this point, the Applicant then became aggressive; he stood at the edge of her desk - about 60 or 70 cms away from her - leaning over the desk; she felt that he was trying to intimidate her by standing over her. The Applicant asked Ms Calvert to explain why she was going to speak to Mr Phillipson. According to Ms Calvert, each time she tried to answer, the Applicant would speak over her. They were speaking loudly enough that eventually a colleague approached to shut the door, and said: ‘It is getting loud’. Ms Calvert asserted that she said to the Applicant, ‘You are making me talk at this level. It is not satisfactory, it is unprofessional. I am not happy about having to talk at this level. You are not listening. I am your Director, you are meant to listen to what I say.’ She said she was as measured as she could be in the circumstances and denied intimidating the Applicant or being ‘enraged’. The Applicant said he spoke only in a ‘very firm’ voice that was not inappropriate or aggressive. Ms Calvert said she felt intimidated by the Applicant’s aggression in the conversation.
The Applicant said he felt fear and apprehension. He noticed spittle on his face. He said she also said ‘how dare you ask an irrelevant question of IT? How dare you waste Rohan’s time and stay behind to ask him questions!’
That night the Applicant sent a further email to Ms Calvert about the exchange.
17 May 2013
On 17 May 2013, Ms Calvert emailed the Applicant, repeating an earlier request she had made for some form of a record that he was approved to leave work early on Fridays so as to return to Sydney for the weekend. Based on his response to her initial request for documentation, Ms Calvert came to the view that the arrangement that the Applicant believed he had in place was probably something he had negotiated with various supervisors during his employment at the Department. Yet, to that point, Ms Calvert had not received a leave request to approve leave on a Friday. That being the case, she asked the Applicant to go into the Department’s online leave system to lodge a formal leave application. The Applicant claimed that Ms Calvert threatened to block his leave requests, gave him orders which he considered would be impossible for him to follow, and criticised him for not following the orders. In her evidence Ms Calvert said there was no possibility his leave would be refused. She said she wanted to assure he had the available leave because he hadn’t been working sufficient hours to have accumulated the necessary flex leave. The alternative was to verify that he had a formal arrangement in place about his hours.
According to the Applicant, the leave arrangement arose from an agreement with Ms Calvert that he would use flex time to travel to Sydney on Fridays before the end of his working day. However, in her statement, Ms Calvert suggests that the Applicant claimed when he arrived in her section that he already had some form of approval for the arrangement, and she says that at some point in May 2013 she had asked the Applicant to provide her with further information about that approval. According to Ms Calvert, when she indicated to the Applicant that she wanted to see records about the leave arrangements, he responded (in words to the effect): ‘This is what I have always done. I’m supposed to finish early and stay late on other days’. In her statement, Ms Calvert denied that she told the Applicant that she could cancel his leave at any time but believes that she may have said to him something to the effect of ‘Leave is not a right’.
The Applicant said in his evidence that he was taking leave to be with his family; he said he was looking after his father who was very sick with emphysema. It was eventually explained that his father has lived at the home of the Applicant and his wife since they moved in together in 2009, and that during the week his wife, and some friends cared for him. The Applicant said it was his responsibility and his wife was not his father’s blood relative and she did not speak his language.
Later that day, the Applicant said that when he approached Ms Calvert to say goodbye and discuss the email correspondence from the previous night, she slammed the office door in his face, hitting his nose. Ms Calvert denied this. She considered that the Applicant’s recollection of events is fanciful and simply did not occur. She accepted that it was possible she did not see him and shut her door as he approached her office. However, if this did occur, she did not intend to shut the door in his face.
The Applicant subsequently sought advice from Ian Arthur of the Department’s Conduct Team and also met with his mentor, Geoff Fearns, a Finance Director, to seek guidance in relation to Ms Calvert’s behaviour. In his statement dated 9 February 2015, the Applicant noted that on the weekend following the events of 16 and 17 May 2013, ‘I went to my room, rolled into a ball and cried. I could not sleep. I felt humiliated, fearful and that my trust had been breached’.
20-28 May 2013
On 21 May 2013, Ms Calvert received a call from Mr Phillipson regarding communication he had had with a colleague, Hedvika Gibbs, about incorrect legal advice provided by the Applicant to a person in her branch. The advice was unsolicited by the section and had not been cleared by a more senior officer. The Applicant claimed Ms Calvert had tasked him with providing the advice, but he had told her he wasn’t up to it.
Ms Calvert evidence was that the advice was contrary to her express direction to the Applicant that he was not to provide legal advice or hold himself out as a legal officer to any other section of the Department. After this was brought this her attention, Ms Calvert emailed the Applicant to ask him to attend a meeting with her later that day.
In his evidence the Applicant said that when he had given the (incorrect) advice about x-rays for pregnant visa applicants, the previous night his wife had telephoned him to say that she was bleeding. He said that Ms Calvert excused the advice, saying, ‘you’ve got problems with your wife. I know your head’s not in it today’.
The Applicant said in his evidence that as the days went by, Ms Calvert was looking for things to find fault with.
The Applicant reported that he sent an email to Ms Calvert in relation to a task allocated to him to clarify an error that he had made on the task. In her reply Ms Calvert wrote: ‘Be prepared to explain this at 3pm today. I will be at Anna’s office at 3pm.’ The Applicant emailed Ms Calvert to state that his stress would prevent him from attending the meeting. Ms Calvert sent a reply email to the Applicant, indicating that the meeting would be rescheduled for the following day.
On 21 May 2013, the Applicant had a second meeting with Mr Fearns, he said, to discuss potential 'job opportunities’. He also engaged in further email dialogue with an officer from Global Health NSW.
Later that day, the Applicant received an email from Ms Calvert requesting his attendance at a meeting in Ms Hunter’s office to discuss the email correspondence with Global Health NSW. The Applicant requested that the meeting be postponed in order to allow a union representative to attend. The meeting was rescheduled to 24 May 2013 and a union representative, Adelle Trommestad, was arranged to attend. In his evidence the Applicant said that on the day he suffered ‘particular difficulties’, presumably referring to his wife’s miscarriage. Ms Calvert said the Applicant told her about his wife’s miscarriage but it was not on that day, because on the day he had told her, she had sent him home.
On 22 May 2013, the Applicant emailed Ms Calvert alleging ‘abuse’ on 16 May 2013. In addition, the Applicant made an appointment with the Chief Lawyer to ‘discuss [his] … concerns over [Ms Calvert’s] conduct and…the power disparity’. The Applicant subsequently received a call from Mr Phillipson requesting, the Applicant said, a ‘man-to-man’ chat. The Applicant later attended a meeting at Mr Phillipson’s office, accompanied by a union representative. He said he told Mr Phillipson that he wanted an apology from Ms Calvert, who was also present. According to the Applicant, the meeting was not to discuss allegations against Ms Calvert, but rather focused on what Mr Phillipson could do for the Applicant. The Applicant stated that Mr Phillipson unilaterally cancelled the meeting that he had requested with the Chief Lawyer.
Ms Calvert claims that, during the meeting on 22 May 2013, the Applicant described a number of different stressors in his personal life. These included his sick parents, his wife suffering a miscarriage and the fact that he was forced to sell his BMW. The Applicant also believed that his friends were laughing at him - but he told them and said to those at the meeting that he was committed to being a public servant. According to Ms Calvert, the Applicant was in tears for much of the meeting. Mr Phillipson suggested that he take unpaid leave or reduce his hours to address his personal issues but he said he could not afford to do that.
On 24 May 2013, the Applicant attended a further meeting with Mr Phillipson, Ms Calvert and union representative, Ms Trommestad. The Applicant was informed that the purpose of the meeting was not to discuss his concerns about Ms Calvert’s behaviour, but rather his underperformance as an APS3. The Applicant, prior to this meeting, was not provided with a meeting agenda nor was provided with a union representative. The Applicant had to organise a union representative himself. The meeting was adjourned until 27 May 2013 and when it resumed on that date, the Applicant provided correspondence to refute allegations that he was underperforming. The Applicant indicated that he felt extremely distressed and unsafe as a result of the meeting.
During the meeting on 24 May 2013, Ms Calvert and Mr Phillipson expressed a number of concerns to the Applicant about his work performance (e.g. his failure to focus on allocated tasks), concerns which the Applicant refutes. These concerns were reiterated at the meeting on 27 May 2013. At the meeting, the Applicant referred to Ms Calvert having ‘very recently’ given him a good reference for the acting opportunity with Ms Harris, although this was in fact in late 2012.

In her statement dated 18 September 2015, Ms Calvert reported that sometime during the week commencing 22 May 2013, she met with Human Resources to talk about commencing a performance management process.
On 28 May 2013, the Applicant handed Ms Calvert a medical certificate for carer’s leave. In support of his leave application, he provided Ms Calvert with a copy of his father’s medical certificate. According to Ms Calvert, the Applicant told her at that time that he wanted things to go back to how they were when he first started in the section. Ms Calvert responded with words to the effect that: ‘Things won’t be the same Kelvin’. The Applicant’s version of the conversation was that Ms Calvert had added: ‘you should know your place’. The Applicant indicated that he felt intimidated by her comments.
29 May 2013
The Applicant received a telephone call from Ian Arthur requesting that he attend a meeting at his office. Mr Arthur was the Principal Investigator of the Workplace Relations and Conduct section, and the officer appointed to investigate a complaint lodged by the Applicant against Ms Calvert, following the incident on 16 May 2013. At the meeting the Applicant was given a Suspension from Work Notice. The suspension (with pay), which was effective from 29 May 2013, was based on the following:
On 16 May 2013, during a conversation with Ms Stella Calvert in her office, you stood above her while she was seated, and yelled at her in a physically threatening and aggressive manner
At the conclusion of the meeting the Applicant was escorted from the premises by security officers.
The Applicant claims that, after he complained about Ms Calvert, she lodged a counter-complaint against him. The complaints were investigated. The Applicant claims that Ms Calvert made false accusations and lied to the investigators, and that this led to his suspension. However, Ms Calvert stated that she never claimed that she had been bullied or harassed by the Applicant. When Mr Arthur asked her if she wanted to lodge a counter-complaint, she declined the offer.
Also on 29 May 2013, the Applicant checked his Performance Development Agreement (‘PDA’) review and noted that Ms Calvert had assessed his performance as ‘development needed’, whereas in his self-assessment he had rated his own performance as ‘effective’. Ms Calvert has denied that she was responsible for the PDA change.
The Applicant stated that he considered that Ms Calvert had not followed the Department’s HR policy and enterprise agreement as she had failed to provide a month’s notice in the initial discussion period. The Applicant raised his concerns regarding the PDA review with Jim Lightowler, an HR executive in the Department, who confirmed that failure to provide a month’s notice was contrary to the Department’s HR policy and the enterprise agreement.
Notwithstanding the suspension, the Applicant commenced a period of approved carer’s leave shortly thereafter, i.e. on 31 May 2013.
Post Suspension
Between 31 May 2013 and 7 June 2013, the Applicant visited Singapore, the purpose of which he said, was to accompany his elderly father and provide emotional support for his mother while she underwent surgery there. He said that his father was very ill and was ‘unable to fly’ (presumably alone), and was in a wheelchair. At the hearing, the Applicant’s wife said the trip was financed by the divorce settlement she had recently received.
Medical Evidence
‘Suicide attempt’ - July 2012
Summonsed records disclosed that in July 2012 the Applicant was taken by ambulance for emergency hospital treatment and psychiatric assessment following a reported suicide attempt after an argument with his wife. He gave a history to the attending ambulance officers/hospital staff of having ingested multiple analgesics as well as "Flea Die" and "Ajax" - described as a “polypharm overdose”. In his evidence though, he denied that he had taken those substances and claimed having falsely reported in order to upset his wife. His evidence was that he had taken painkillers because he had a ‘raging headache’. He denied it was a suicide attempt.
Mrs Cho said that they had had an argument and she had telephoned a friend to come and collect her and the children. The Applicant made no attempt to stop her leaving, unlike previously, when, on a number of occasions, she had to call the police. She later changed her evidence and said that she only had occasion to call the police after the Applicant had been in Canberra.
Mrs Cho believed that the Applicant thought she was permanently leaving him, whereas she just wanted to remove herself from the argument, as she had previously done several times.
She said though that before 2013 there were times when she feared for his safety, for example, he would run into the traffic and she was unable to get him back to their home. Later in her evidence she said that this too had only occurred after the events relied on, and an occurrence is referred to in the summonsed hospital records.
On her return, she found him on the bed, crying, ‘look[ing] emotional’ and a little lethargic. She called an ambulance and he told them that he had taken pills and they asked how many. She told them about the Ajax and the Flea Die, but later in her evidence said that it was her husband who reported taking those substances. She said his stomach was pumped in the ambulance. He was hospitalized for a few hours. She didn’t think it was a genuine attempt because, soon thereafter, he was ‘fine’.
In his evidence, the Applicant conceded that there had been an earlier occasion when his wife had threatened to leave him and he had stood in front of the car, blocking her departure, and she had called the police. He said at the time he was having a ‘tough time with depression’ and was dealing with work issues.
Mrs Cho said in her evidence that in the following year she did not see any manifestation of that kind of behaviour. The only noticeable change was his tiredness, such that he did not want to spend too much time with his wife and the children.
Employee Assistance Program
In July - September 2012, the Applicant attended Employee Assistance Program (‘EAP’) counselling sessions at Davidson Trahaire Corpsych (‘DTC’). In cross-examination, the Applicant said that he had sought counselling to assist with his adjustment to working in Canberra and his new role. Mrs Cho said he sought assistance because they had been arguing a lot since he had moved to Canberra and he needed someone to talk to about his loneliness and the problems they were having.
The undated notes of the first attendance refer to the Applicant reportedly telling the counsellor that he had attempted suicide in July. Although the Applicant had denied in his evidence that it was a suicide attempt, he explained the counsellor’s entry by saying that he must have subconsciously intended to commit suicide (by taking 10 Panadol). It was recorded that he reported that there was a financial argument and he had lost his temper and shaken his wife. He confirmed in cross-examination that he had been asked at the hospital whether there was a problem with domestic violence.
He also told the counsellor that his wife was embroiled in an 18 month custody battle for her children. He said his wife had recently suffered a miscarriage, although, the Applicant said in his evidence, it later transpired that she had other gynecological problems.
The notes of the next attendance - on 18 August 2012 - record that it was a wide-ranging consultation, including aspects of the Applicant’s work and his preference to work in Sydney rather than Canberra.
He attended DTC again on 30 August 2012, and again on 10 September 2012. In the latter session, he discussed that his grandmother had died the previous week.
In a Certificate of Attendance dated 20 June 2013, DTC reported that the Applicant sought assistance on 11, 18 and 22 April 2013. After the events relied on he also attended on 23 May 2013, and 18 June 2013 and 25 June 2013. The Certificate does not indicate the reason/s the Applicant sought counselling assistance. The Applicant said in his evidence that the attendances were also about adjusting to working in Canberra and living in Sydney. The notes of the first of those meetings, however, record concerns about ‘workplace harassment/bullying’ and ‘moving away from section’. The notes of 18 April 2013 refer, amongst other things, to the death of his grandmother, and the need to spend time with his wife.
On 23 May 2013, the Applicant attended another counselling session at DTC. The counsellor took a history that the Applicant ‘had been to his doctor, suffered from a lack of sleep due to projects and caffeine (coffee), workplace harassment from director, investigation.’
When the Applicant attended again on 18 June 2013 he reportedly said that he had attempted suicide the previous year. In cross-examination, he denied that he had said that to the counsellor; only that he had taken ‘an overdose of pills’.
Dr Christopher Tan, General Practitioner
Dr Tan’s clinical notes also show that the Applicant attended upon Dr Goh at the same medical centre on 26 April 2013, at which time the Applicant seems to have been referred by his counsellor to explore with a doctor whether he might be prescribed anti-depressants for ‘swinging moods’; although the Applicant said it was to eliminate the possibility he was bi-polar.
The Applicant’s evidence was that he had consulted the doctor because of work stress, but the doctor told him there was nothing wrong with him.
He also reported to the doctor that he had trouble sleeping. He does not appear to have informed Dr Goh that he was consuming at least six, and up to 12, energy drinks a day, which, he said, he consumed when he was working ‘on projects’; whereas the Applicant told Dr Hong in July 2013 that he had been consuming those quantities for several months.
Dr Goh noted the Applicant’s family situation and challenges at work. Dr Goh suggested that the Applicant adopt a ‘non-medicative approach,’ consisting of:
·identifying problems and solutions;
·reviewing family arrangements; and
·swimming/meditation for relaxation and areas to focus on.
It is unclear if the Applicant took any steps to follow this advice.
On 19 June 2013, the Applicant attended a medical appointment with Dr Tan. Dr Tan’s consultation summary indicated that the Applicant suffered from Depression and ‘[felt] it is work related’. He prescribed 20 mg of Aropax. He noted that the Applicant had:
gone through a lot of bullying at work, feeling helpless due to this. Had made complaints to work and union and matter is being investigated. Currently on paid leave until matters are sorted out by his work. Feels that things will improve if work situations improve, or if manage to move to a new job.
In the notes of an appointment on 11 October 2013, Dr Tan indicated that the Applicant’s ‘Depression is under controlled (sic). Seeing specialist again next month. Aropax ceased. Medication started by specialist: Duloxetine [Cymbalta] 60 mg’. At the subsequent appointment, on 21 October 2013, Dr Tan stated that the Applicant has:
Depression and anxiety. Is not ready to return to work. Also looking after his elderly father who has emphysema. Mother is going to have gallbladder surgery in Singapore. Would need medical certificate for unpaid leave…
On 21 March 2014 the Applicant again attended Dr Tan who provided the Applicant with a medical certificate and a letter in response to Comcare’s request for clinical notes relating to the Applicant’s condition and treatment. Dr Tan confirmed that the Applicant first consulted him on 19 June 2013 ‘regarding symptoms of depression and anxiety after incidents at work which he had reported to his superior for further investigations’. With respect to the cause/s of the Applicant’s condition, Dr Tan wrote:
·May 2013 - being bullied at work by his superiors. Feeling hopeless as there is no actions taken to rectify the situations. (sic)
·29/5/2013 - being suspended from work.
·Social isolations and parents’ poor health.
·Majority of his symptoms are attributed to the specific incident at work in May 2013. Prior to this, he was functioning well at work.
On 10 February 2015, the Applicant reportedly told Dr Tan that he was unable to go out without being accompanied by his wife and that the bullying at work reminded him of the bullying in school.
Dr Michael Hong, Consultant Psychiatrist
On 28 June 2013 the Applicant was assessed by Dr Hong, at the request of the Department, as to his fitness to work. Dr Hong provided a report dated 4 July 2013. Mr Cho reportedly gave a history that he had not had significant psychological symptoms, and had never consulted a counsellor, EAP, psychiatrist or taken any psychiatric medication prior to 2012, nor had he ever had a psychiatric admission.
The Applicant reportedly told Dr Hong that he had never taken any illicit substances such as cannabis, amphetamines or ecstasy. In cross-examination the Applicant said that he meant he had never taken any substances as an adult or while at work.
The Applicant was described by Dr Hong as having a ‘particular personality style and having been subjected to severe bullying in early life’. Dr Hong also indicated that the Applicant had experienced ‘significant psychosocial stressors since commencing work at [the Department], with mounting stresses in 2012 due to isolation and various family members having health issues’.
Dr Hong took a history that
[the Applicant] stated that he has always been highly driven, he sets a very high standard for himself; as a result he has been an anxious person for most of his life. He feels there is a need to perform and achieve, and to do things properly. He has felt more distressed due to various family health issues. Since going to Canberra and being isolated, [the Applicant] started experiencing increased psychological symptoms which include poor sleep, low mood, high level of anxiety, being easily frustrated and being more argumentative. Following the complaint by [his supervisor at the time, Stella Calvert] against him, [the Applicant] felt highly ‘despondent’. He found it hard to get out of bed, he felt he had lost weight, he was not suicidal, he had impaired concentration, he found it difficult to sleep and to switch off; he was irritable, withdrawn and quiet.
The Applicant told him his ‘symptoms escalated when he made a formal complaint against a supervisor and she then made a counter complaint’. Dr Hong concluded that the Applicant’s presentation was consistent with diagnosis of an adjustment disorder. In particular Dr Hong noted that the Applicant was ‘particularly sensitive to what he perceives as injustice and a violation of his rights. Since taking antidepressant medication, he had gained significant improvements’, although from Dr Tan’s notes, this prescription had only occurred a week beforehand.
Elsewhere in his report, Dr Hong also refers to an incident at a hospital in early 2012 when the Applicant pushed a male nurse who was preventing the Applicant from visiting his mother outside visiting hours.
The Applicant’s fitness for work was reviewed by Dr Hong on 22 November 2013 and in his report dated 28 November 2013, the doctor noted that the Applicant:
… has an ongoing adjustment disorder. This is a transitory condition however there are ongoing perpetuating factors, including a number of stressors in his personal life.
In terms of the factors causing the Applicant’s symptoms, Dr Hong wrote:
[The Applicant] described ongoing stressors relating to:
·His mother is dying from gallbladder cancer in Singapore.
·He is selling his house to pay for his mother’s treatment in Singapore, which costs around $200,000.
·He has no income.
·He is currently living with his wife, his father and three children aged 7, 8 and 10 years. He is caring for the 3 children.
·His father has end stage emphysema and now requires an oxygen tank. [The Applicant] cares for him.
·As he has no income he can no longer afford his apartment in Canberra or to pay a second set of rent.
Since the last assessment, [the Applicant] described feeling psychologically worse due to ongoing work and non-work stressors.
[The Applicant] reported feeling angry and sad that he has done nothing wrong and yet his supervisor AC had bullied him. [The Applicant] had spoken to AC’s supervisor [Greg Phillipson], who simply replied, ‘I don’t want to hear about it’.
[The Applicant] also described a loss of face amongst his family. He stated that his mother asked him why he was suspended and he felt unable to explain this to her.
(The reference to ‘AC’ appears to be an error by Dr Hong and are most likely intended as references to Ms Calvert.)
The Applicant’s medical condition was again assessed by Dr Hong on 11 April 2014. In Dr Hong’s report dated 28 April 2014, he states that the Applicant:
… does not think about previous work bullying issue and is not stressed by this issue anymore.
[The Applicant] continues to suffer anxiety and depressive symptoms. He worries about his financial situation and stated that he cannot afford to be working in Canberra, as he would have to pay for two sets of accommodation...
On specific enquiry, [the Applicant] confirmed experiencing the following..:
oDepressed mood.
oLoss of energy.
oRecurrent suicidal thoughts – [the Applicant] is less suicidal over time, as he no longer thinks about previously (sic) workplace bullying.
oFeels more hopeless over time.
oContinues to gain weight from stress.
oSleep disturbance - he worries and cannot switch off.
oConstantly thinking and worrying - about work, finance, family’s health.
oSocially withdrawn.
Dr Hong indicated that ‘[the Applicant] is not medically fit to participate in Canberra-based employment’ and that if he was required to do so, the isolation and separation from his family, and the financial strains he would experience, would likely ‘trigger a rapid deterioration in his psychological state’. Dr Hong wrote:
As time goes on, the work-related psychological symptoms would abate, and indeed work related psychological symptoms have largely resolved. However, there are many non-work perpetuating factors, and realistically until his personal life stressors are resolved, he is not likely to be able to return to work in Canberra and maintain psychological stability.
Dr Sean Yenson, Consultant Psychiatrist
The Applicant was referred by Dr Tan to Dr Yenson for treatment, whom he saw for the first time on 14 August 2013.
In a report dated 4 September 2013, Dr Yenson wrote that the Applicant was:
Suffering from symptoms of depression and anxiety which occur in the context of work related issues. [The Applicant] describes significant problems at work which involved bullying and harassment and as a result has been unable to function at work.
In addition, [the Applicant] has not functioned well at home…[the Applicant’s] wife today confirmed…symptoms of depression…
He is on treatment which includes anti-depressant medication. [The Applicant] will also see a clinical psychologist.
…major component of minimising stress would be for him to be relocated in (sic) Sydney where he would be around his support network.
On 26 March 2014, the Applicant again attended Dr Yenson. Asked to comment on any relevant history, or pre-existing or underlying condition, Dr Yenson wrote in his report dated 31 March 2014:
[The Applicant]… suffers from an adjustment disorder with depressed mood. …characterised by a sense of anxiety and constant feeling of being unsettled. His mood has been in the depressed range.
…
[The Applicant] reported he was on an anti-depressant medication Paroxetine for approximately two months in the middle of 2012. This occurred in the context of a number of stressors including the death of his grandmother in 2011 and the diagnosis of cancer for his mother also in 2011.
He was able to cease the medication after 2 months and his overall functioning improved.
Although the diagnosis during this period would have been an adjustment disorder with depressed mood, the symptoms did resolve. He was then free of such symptoms until the workplace stressors occurred. As a result, I would not consider this a pre-existing condition.
…
The most significant incident causing his condition is the employment incident in May 2013. This relates to the workplace bullying that he experienced. The duration of time it is taken to resolve this has exacerbated his condition.
…the allegations that he conducted himself inappropriately and allegations that he breached the APS Code of Conduct has further perpetuated his symptoms.
To a much smaller degree, the ongoing poor state of his mother contributes to his low mood.

However, in a letter dated 25 May 2015 Dr Yenson wrote:
In my report dated 31 March 2014,…I stated that [the Applicant] had been on antidepressant medication for 2 months in the middle of 2012. On review of my clinical notes, I had documented the same information when I first saw him on 10 August 2013. However, recently [the Applicant] brought to my attention that this is incorrect. I have viewed a letter from his GP that indeed the anti-depressant was commenced on 19 June 2013 (and not 2012…). I am unsure why I have recorded 2012 in my clinical notes…, but it is now clear that antidepressant medication was commenced in June 2013.
…
I can also confirm that he had EAP sessions in April and May 2013.
The Applicant attended another appointment with Dr Yenson, who, in his report dated 16 June 2014, referred to the DTC notes as ‘extremely brief and cursory’, but went on to write: ‘Despite this practical difficulty, the notes clearly indicate that [the Applicant] had reported workplace harassment to EAP. His initial contact was on 11 April 2013’. Dr Yenson remarked:
In addition I believe that when [the Applicant] attended EAP counselling he was ‘outside the boundaries of normal mental functioning at that time’. Comcare has accepted that he suffered from a condition, namely an adjustment disorder with mixed emotional features. Thus [it] is accepted that his functioning had been impaired. Although the diagnosis was made subsequent to the EAP sessions, the symptoms he was suffering from began following the workplace incidents and he attended the EAP sessions as a result of these [incidents]…
Dr Yenson noted in another report dated 20 August 2014 that:
[The Applicant] has a substantial psychiatric condition, namely an adjustment disorder with mixed emotional features.
[The Applicant] contends that as a result of workplace bullying he developed this psychiatric condition. His claim with Comcare has been rejected…. He has been out of work for a substantial period of time.
…
Upon my review of [the Applicant] today, he continues to suffer from his psychiatric condition. His wife attended the review and she confirms that he remains low in mood, highly anxious and preoccupied with his plight and clearly different in mental state compared to his premorbid state.
In his evidence Dr Yenson said that the Applicant’s symptoms had probably started sometime in early 2013 when he had started to attend EAP counselling, and that there were a number of factors involved in the development of his symptoms. His notes included references to ‘anger’ and ‘rage’, but took no history that counselling had occurred before the events of May 2013. He conceded that it was possible that the Applicant had a developing anxiety depressive condition in July 2012 (at the time of the ‘suicide attempt’) which continued to progress.
As to the alleged incident 16 May 2013 the Applicant gave a history of being ‘self-conscious’ at having been yelled at in front of everyone. The doctor said that, on the history he took, this was the most significant in his employment history.
Dr Stephen Allnutt, Consultant Psychiatrist
On 9 December 2014, the Applicant was assessed by Dr Allnutt. Dr Allnutt’s report dated 16 March 2015 states that:
…[the Applicant] said he felt “no good”. He said he continued to be triggered by similar people or events (which resembled what had occurred at work or his supervisor, SC). …poor self-esteem and thought of him (sic) as deserving of all the horrible things that had happened to him, and thought him to be a horrible person.
…[the Applicant] manifests a constellation of depression and anxiety symptoms.
…Prior to the index injury there is insufficient evidence of a significant psychiatric diagnosis, pre-existing condition, non-work-related stressors or functional impairment... [h]is work with the Department of Immigration and Border Protection substantially contributed to his current condition, in particular the manner in which he felt he was dealt with by his supervisor, such as being overcritical of him, learning in retrospect that he was recommended for a promotion and realising her criticism of him might have been unfounded, having the door slammed in his face, having her spittle land on his face, being humiliated in front of other staff, not pursuing administrative process (particularly his performance management) in a proper manner, and denying him what he perceived as due process.
…[The Applicant] is currently incapacitated for work, both within his pre-injury role and within the broader work environment, because of the severity of his depressive symptoms...[the Applicant] must continue to see the psychiatrist and accept anti-depressant medication.
He acknowledged ‘other comorbid’ stressors included: the death of his grandmother, stress in his relationship with his wife due to his excessive travelling and his mother’s terminal illness.
In his evidence he also observed that at that time he was seeking more emotional support from his wife and was socially withdrawn. He agreed that it was possible that he was suffering an adjustment disorder, given the stressors he was experiencing, but noted that the Applicant had reported that he was functioning adequately at work. He also considered that his depressive symptoms may have had an onset before May 2013.
In his report, Dr Allnutt noted that the ‘index incident allegedly occurred in mid-May 2013. However, there were a series of events at work prior to this’. His discussion of these includes the ‘stressors’ mentioned above and a report that, after an argument with his wife, the Applicant took 10 Panadol pills to get rid of pain from a migraine and needed to go to the hospital. In his evidence Dr Allnutt said that after the [‘suicide’] event communication with his wife improved.
Dr Allnutt was aware that the Applicant saw an EAP psychologist on and off (approximately 4 or 5 times in total) from mid-2012 to early 2013, but did not indicate his understanding of why this had occurred.
Dr Allnutt noted the Applicant’s reports about work, namely that:
[The Applicant] was also doing complex work and this was stressful. He estimated that he had started to do more complex work when he started working with detention centres in late 2013 (sic)...
Between January and March 2013 he worked on a short-term contract with a person, JB. She was assigned to be his supervisor but he was requested to report above her… JB made racist comments to him that he said didn’t really bother him ... but he did bring it up with his director. When he raised the issue of not being happy working with this person with his director there was a mutual agreement to terminate the short-term contract early, and he was happy with this.
Dr Allnutt reported that in the time leading up to May 2013:
[The Applicant’s] mood was “up and down”. His sleep was disturbed and he used to worry about work. He was waking up earlier than normal and his appetite was diminished; he was gradually losing weight by 2013. He tired more easily but had adequate motivation.
Yet, at the same time:
He felt good about himself and had good self-esteem. He was confident in his decision-making and could focus, follow conversations, take instruction, plan and organise tasks, and complete tasks. He was at times forgetful, but this was mainly due to tiredness. His interests were constrained due to his circumstances. He found capacity for pleasure in activities and there were no suicidal thoughts or panic attacks
In his evidence Dr Allnutt said the view expressed by Dr Rees (see [133]-[144], below) that the Applicant was already unwell before the events of May 2013, was ‘close’ to his own.
Dr Anne-Marie Rees, Consultant Psychiatrist
On 11 March 2015, the Applicant attended, at the Respondent’s request, an assessment with Dr Rees, consultant psychiatrist. On 2 February 2016, the Applicant attended a second session with Dr Rees. Reports for these assessments were dated 25 March 2015 and 23 February 2016 respectively.
In her report dated 25 March 2015, Dr Rees diagnosed the Applicant as having ‘a severe mental illness with depression including psychotic symptoms’ and ‘features of anxiety and agitation’. She considered that:
... these may have evolved from an original adjustment disorder related to all of the stressors that the Applicant experienced into a more severe depression with now psychotic symptoms with an underlying vulnerability related to his childhood post- traumatic stress. However alternatively he has had an underlying vulnerability to developing psychosis which with multiple stressors resulted in triggering what is an underlying constitutional illness.
Dr Rees rejected the proposition that the Applicant’s employment contributed, to a significant degree, to the development of his condition. In particular, she said:
In my opinion he was already unwell in the workplace related to multiple personal stressors and then the stressors related to the workplace have occurred. Namely the triggers appear minor in my opinion but would have appeared more major to him because of his underlying vulnerability from trauma in the past. Also he had already been experiencing significant stress related to personal problems and in my opinion was likely already fairly depressed when he perceived problems with his supervisors.
The level of mental illness that he has currently is not in keeping with the level of stressors from the workplace described. He would need far more significant underlying vulnerability and far more significant stressors to have caused the current status of his mental health. The illness is also of a constitutional nature in terms of psychotic symptoms. In my opinion therefore the work issues were not a significant contributor to the condition.
The multiple non-work related factors that Dr Rees attributed to the Applicant’s condition included: his mother’s illness, his father’s illness, his grandmother’s death, marital strain and isolation from being in Canberra - particularly when his family was so unwell.
Dr Rees read through Dr Hong’s reports with the Applicant. He accepted what was written but added to the ‘History of Presenting Complaint’:
He reported the journey between Sydney and Canberra was making him tired and he saw an EAP counsellor during 2012 to help him improve his communication with his wife because of the distance between them and he noted that by late 2012 problems had resolved.
Dr Rees reported that work-related issues emerged in early 2013:
He described that he had problems with the sub-supervisor (“JB”). He said he was on a temporary contract and then the contract was released and he moved away from her. He said she was racist towards him and had made comments that she would never marry an Asian man and doesn’t believe in inter-racial marriage (referring to him and his Caucasian wife). He described her making comments about him being an APS 3 and why he was doing this project and noted that he had identified inconsistencies in the way the department operated which had made him unpopular with low level staff.
…
He was then working with his new supervisor (“SC”). He then described problems with his supervisor SC in May 2013. This went on for several weeks and he said that she had abused him and slammed a door in his face and he lodged a complaint against her for her violence. He said also when he asked a question in a meeting she told him not to talk about that now in a rude tone of voice. He said that he felt betrayal of trust by her. He said staff were laughing at him...
On 2 February 2016, the Applicant’s medical condition was reviewed by Dr Rees. Dr Rees’ report dated 23 February 2016 stated the following:
Diagnosis …is that of major depression with a constellation of depressive and anxiety symptoms…I would not say that he has an underlying pre-existing psychotic illness…[although] he was likely bordering on this in 2015 when he presented to me. This has subsequently improved.
…currently his presentation is much better because he has actually improved…. He considers that all the [workplace issues] contributed to his stress levels to a degree… [H]e was already depressed and accessing treatment in 2012. He was accessing psychological intervention across 2012/13 so for Dr Allnutt to say that he was completely better at the beginning of 2013 lacks evidence… He was seen in the workplace to be frequently emotional, aggressive in his manner, inappropriate with his emotions and boundaries, and perceived as inflating his self-worth. In my opinion therefore the psychological condition did not result from these issues in the workplace… The interactions between him and SC that he described, if he had a stable background and was not depressed, would not in the average member of the population have resulted in a serious deterioration in functioning that he has experienced related to psychiatric illness.
…
He has a very vulnerable personality and whether he was actually functioning okay before 2012 is unclear from the evidence presented.
…
No evidence that he was voluntarily exaggerating his symptoms… He does present fairly genuinely believing that all of his symptoms relate to SC…[h]is account is not necessarily inconsistent but just his perception is, in my opinion, lacking insight, which is understandable.
Dr Rees also said that in her opinion:
… he was already depressed and he had a very vulnerable personality where he had extremely low self-esteem generally and is very sensitive, particularly to powerful women, because of issues from his past, and was very sensitive to perceptions he was not a high performer.
In his evidence, the Applicant denied having problems with female superiors. I accept that while the Applicant may have had some problems with his supervisors, there was no basis for finding that this was gender-specific.
In his evidence the Applicant denied that he saw himself as emotional or aggressive or that he inflated his own self-worth. He said he did not get feedback that that is how others saw him. He denied that he came into conflict with any more than ‘a couple of people’ in the Department or that he had ever had any ‘substantial conflicts’ during his employment.
In her evidence, when referring to the Applicant’s maladaptive coping strategies, Dr Rees referred to some personality traits but not a disorder; she then said he did have a personality disorder. She considered his attempted suicide was extremely suggestive of a significant personality dysfunction. She conceded that having maladaptive coping strategies as part of an underlying personality would not necessarily preclude a person from working. She placed significant weight on his suicide attempt: ‘people don’t take overdoses unless they have got some psychiatric problem’.
She agreed that even if he had an underlying vulnerability, whether due to low self-esteem or his personality structure, it would be reasonable to conclude that the events of May 2013 were what resulted in him first going on anti-depressants, first coming under the regular care of a psychiatrist, and first being incapacitated for work. The workplace events were, what she described as the ‘icing on the cake’. She noted that she considered the interactions with Ms Bloomfield and Ms Harris to have a contributory effect.
Dr Vaman Radha Prabhu, Clinical Psychologist
On 10 September 2014, the Applicant told Dr Tan he wanted to see a psychologist and agreed to participate in Mental Health Plan. Dr Tan provided the Applicant with a referral to Dr Prabhu, clinical psychologist and in September 2014 the Applicant commenced seeing Dr Prabhu. Dr Prabhu was not called as a witness, and his reports were not tendered as exhibits.
In a report dated 1 June 2015, Dr Prabhu said that he had been treating the Applicant for 9 sessions. He reported that the Applicant presented with severe depression following work incidents. In particular, he noted:
...In April 2013, while working in Immigration Detention he was assigned extreme workloads and also was subject to racist bullying by a supervisor. [The Applicant] sought EAP psychological treatment in April 2013 for the resulting work stress and was referred to see a GP in April 2013.
He left his position in Detention and started a new position in legal and was in the process of managing his wellbeing and earned recommendations for promotions. However, bullying incidents with his supervisor in May 2013 where he had to face an angry tirade in which his supervisor had also spat on his face, left him shaken and upset. He was also humiliated as co-workers overheard the abuse and some laughed. [The Applicant] wrote an email to his supervisor requesting that the abusive behaviour stop. In response to his email his supervisor continued the next day with unlawful threats to remove his validly applied carer’s leave to take care of his mother who at the time was suffering from cancer. When [the Applicant] tried to discuss his concerns with his supervisor she slammed a door into on his face (sic). [The Applicant] sought guidance from Human Resources and submitted a complaint. In response to his complaint his supervisor unlawfully performance managed him in breach of his employment conditions. [The Applicant] was so distressed by the situation he saw EAP in mid May 2013 for psychological treatment...[and] sought workplace health and safety to arrange a fitness to work appointment with a workplace doctor as he felt he could no longer work in his current situation.
CONSIDERATION
Whether the Applicant suffered a psychological condition prior to the events relied on is ultimately immaterial because, the question is, if he did, did the events relied on contribute, to a significant degree, to an aggravation of the claimed condition? If he did not, it is the same question: did the events relied on contribute, to a significant degree to the development of the claimed condition?
What was Mr Cho’s psychological state prior to the events relied on?
A psychological injury such as that claimed by Mr Cho - an adjustment disorder with anxious and depressed mood - is compensable if the condition is sufficiently serious to be described as ‘outside the boundaries of normal mental functioning and behaviour,’ provided it is contributed to, to a significant degree, by the employee’s employment: s 5B of the SRC Act (and provided it has not been excluded under s 5A).
In my view, for the reasons discussed below, the evidence supports a finding that prior to the events relied on, the Applicant’s condition was one outside the boundaries of normal mental functioning and behaviour: per Comcare v Mooi (1996) 69 FCR 439.
The Applicant had some psychological history well before the events relied on. Dr Hong reported that in early 2012 the Applicant had assaulted (by pushing) a male nurse when he attempted to visit his mother in hospital outside visiting hours.
Then, in July 2012, the Applicant reportedly attempted suicide after an argument with his wife. The Applicant claimed that that incident was merely a cri de coeur, seeking better communication with his wife. As to whether it was a genuine suicide attempt remains unclear, largely it seemed to me, by the obfuscation of the Applicant’s own evidence. The Applicant ultimately conceded in his evidence that, ‘subconsciously’, he may have been attempting suicide. He also conceded that he had taken 10 analgesics, which, he told Dr Allnutt, was for a migraine, but Dr Allnutt took no history of a suicide attempt. The Applicant reportedly told the counsellor that he had attempted suicide in July. Mrs Cho’s evidence was that her husband required his stomach to be pumped, and the relevant hospital notes record a ‘polypharmacy overdose’. Notes were made of the quantities and of the chemicals in the other substances. Quantities of analgesics included 48 Panadol as well as multiple other analgesics such as Nurofen plus and codeine. He gave a history that there were ‘lots of little stressors’, but on that day, there was the big stress of his wife leaving. He was reported as being drowsy and vomiting. He reported a suicidal intent. He referred to his mother’s cancer diagnosis, that he was working interstate, money stresses and that his wife had ‘just left him’. In discussion with the psychiatric registrar he reportedly referred, amongst other things, to extensive racist bullying at school, and that two weeks beforehand he had been challenged about his work hours. Further, his favourite dog had died that week, and six weeks previously his wife had suffered a miscarriage. Despite the Applicant’s denials of a suicide attempt, but noting his subsequent concession of a ‘subconscious’ attempt and the history provided on the day of the incident, I find, on balance, it more likely than not, that the Applicant did attempt suicide in July 2012.

It was unhelpful that police records of the multiple callouts to the home of the Applicant and his wife were not available. These may have clarified the evidence as to whether the callouts had occurred before or after the events relied on, given that Mrs Cho’s evidence – the only reference to the callouts – was so confusing as to the timing as to be unreliable.
Dr Yenson thought that it was possible that the Applicant had a developing anxiety depressive condition from the time of the suicide attempt in July 2012 and that that condition continued to progress. Dr Rees placed significant weight on the suicide attempt, saying that people don’t take overdoses ‘unless they have some psychiatric problem’. On the basis of the evidence of Dr Yenson and Dr Rees, it is possible that the Applicant, in July 2012, was already psychiatrically unwell.
According to Dr Yenson the Applicant took Aropax for about two months in 2012, but the doctor subsequently said, on information provided by Dr Tan at the Applicant’s request, that this was an error and that the Applicant had not in fact been prescribed Aropax until June 2013, namely after the events relied on. Dr Yenson was unable to explain the error in the history he had taken, but I observe that, inconsistently, the Applicant, at the time of the notation, had given a history linking the taking of the medication to the death of his grandmother in 2011 (although this was subsequently corrected to 2012 in Dr Yenson’s letter of 25 May 2015) and the diagnosis of cancer for his mother, also in 2011. I accept, on balance, that the Applicant was not medicated until June 2013.
The Applicant attended counselling sessions after the suicide attempt – from July to September 2012. On 18 August 2012 he reported to the counsellor that his wife had suffered a miscarriage, and on 10 September 2012, that his grandmother had recently died.
In January 2013 the Applicant commenced a temporary secondment to the Detention team on higher duties. From February 2013, when Ms Bloomfield joined the Detention team, the Applicant was in conflict with her. Ms Harris identified some performance issues. When his higher duties were terminated at the end of March 2013 he returned to Ms Calvert’s team from the beginning of April 2013.
He attended three counselling sessions that month, commencing just over a week after his return to Ms Calvert’s team. While he claimed the treatment was mainly for the stress associated with being away from his family, his financial problems and his mother’s health, the notes of the first meeting, albeit scant, clearly record that he also had mentioned concerns about workplace harassment/bullying. On 18 April 2013 he was still citing his grandmother’s death (which, he had previously said was in September 2012).
He also attended Dr Goh, on 26 April 2013, he said, because of mood swings. The doctor noted the Applicant’s family situation and ‘challenges at work’. The Applicant reported having problems sleeping and that he was consuming 6-12 caffeinated drinks a day. The Applicant claimed he attended Dr Goh to confirm he was not ‘bipolar’. This is suggestive, that even by his own evaluation, he was not, at that time, psychologically well and was seeking medical reassurance. That Dr Goh did not medicate him and only treated him conservatively does not, contrary to the Applicant’s contention, detract from the fact that he was seeking medical intervention at that time, in addition to the ongoing counselling. Dr Goh was not called to give evidence, nor were the counselling providers.
In Dr Yenson’s report dated 16 June 2014 he referred to the Applicant having reported workplace harassment to DTC counselling on 11 April 2013 and considered that when the Applicant attended counselling he was ‘outside the boundaries of normal mental functioning at that time’. In his evidence Dr Yenson conceded that he initially had the impression that the Applicant’s symptoms had probably started sometime in early 2013 at the time he was seeing DTC; he had assumed (incorrectly) that was the first counselling the Applicant had undertaken.
Dr Allnutt, in his report of 9 December 2014 opined that prior to the events relied on, there was insufficient evidence of a significant psychiatric diagnosis, pre-existing condition, functional impairment or non-work-related stressors. This last observation is clearly incorrect, as the Applicant concedes that he had multiple non-work-related stressors prior to the events relied on.
I also note Dr Rees’ diagnosis, albeit belated, of depression at that time.
Did the events relied on contribute, to a significant degree, to an aggravation of the Applicant’s condition?
In deciding whether ‘an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment’, s 5B(2) ofthe Act indicates that consideration of a number of factors may be taken into account. Those non-exhaustive factors are:
·the duration of the employment;
·the nature of, and particular tasks involved in, the employment;
·any predisposition of the employee to the ailment or aggravation;
·any activities of the employee not related to the employment;
·any other matters affecting the employee’s health.
Unfortunately there is no guidance as to how and to what extent those factors may be taken into account. They are discussed, albeit in general terms, in this Consideration.
When considering the phrase “contribution to a significant degree", Senior Member Creyke said in Meaney and Comcare [2012] AATA 352 at [103]:
The Act requires that in the case of a ‘disease’ such as a psychological illness, employment must have contributed to the development of the condition ‘to a significant degree’, that is, to a degree which is more than de minimis and is substantial or considerable. (Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at [15])
The Respondent, properly in my view, sought to contextualise the events relied on. It was submitted on the Applicant’s behalf that the only question is whether the events relied on contributed, to a significant degree, to his condition. These conflicting approaches, in my view, are not mutually exclusive. There was some contrivance, it appeared to me, in the Applicant’s reliance on the specific events of May 2013 when his psychological history prior those events was clearly somewhat problematic and it cannot, in my view, simply be put aside. If the events relied on did contribute, to a significant degree, to his condition, even if they acted on a pre-existing vulnerability, he would be entitled to compensation (unless the “ailment” is excluded by the “reasonable administrative action” defence). Perhaps it is for that reason that the Applicant, in the submissions filed on his behalf, contended that the Applicant was already unwell as a result of the events of 16 and 17 May 2013, and not the events of 29 May 2013 the culmination of which was the Applicant’s suspension.
Treloar v Australian TelecommunicationsCommission [1990] FCA 511; (1990) 26 FCR 316 at 323: “The causal connection must be established on the probabilities and not left in the area of possibility or conjecture...".
Just as he had sought to downplay his suicide attempt, the Applicant also sought to downplay the effects of his prior workplace issues, claiming that on his return to Ms Calvert’s section, his experiences in Detention were now ‘out of his mind’. Summonsed hospital record however note that, as late as September 2015 he was alleging that he had been subject to racism ‘since he started work [at the Department]’. Similarly, he described having been ‘assaulted’ at work. Other than Ms Calvert’s inadvertent spittle – a technical assault - there was no evidence of any ‘assault’ in the workplace.
The Applicant told Dr Allnutt that the termination of his acting role was by mutual agreement. Plainly this was incorrect; his acting was terminated by Ms Harris. He reported to Dr Allnutt that prior to the events relied on he ‘could complete tasks’. This also is at odds with the evidence of both his supervisors, Ms Harris and Ms Calvert, whose evidence I prefer to the Applicant’s in this regard.
The Applicant reported to Dr Yenson that, before the events relied on, he was free of symptoms. That plainly is also incorrect, because even on the history he gave Dr Allnutt, at that time he was having difficulty sleeping and had diminished appetite and became easily tired. That is also consistent with Mrs Cho’s evidence. The Applicant told Dr Yenson that the incident of 16 May 2013 was the most significant in his employment history, yet that it had only made him feel ‘self-conscious’. Such a response does not suggest a significant contribution by that, or any other of the events relied on to his condition.
The Applicant told Dr Hong that he had no previous history of any counselling, which was also plainly untrue. Similarly, he made no mention of the suicide attempt. He told Dr Hong that he had never taken any illicit substances, but qualified that in his evidence to mean, none as an adult or while working. He also told Dr Tan that prior to the events relied on he was functioning well at work. I prefer the evidence of Ms Harris and Ms Calvert that this was not the case. While he was not being ‘performance managed’ as that term is used in the public sector, he was being very closely monitored and his work, including his output, was the subject of criticism.
In her report of February 2016 Dr Rees observed that the Applicant was undergoing counselling from 2012 and pre-May 2013. She considered he appeared to have had depression in 2012 and by the time of the events relied on, the Applicant was already ‘unwell’ associated with multiple personal stressors. She also observed that, the Applicant’s behaviour in the workplace before the events relied on was frequently emotional, aggressive, emotionally inappropriate, and perceived as inflating his self-worth. This, to me, was borne out by the evidence of Ms Calvert, Ms Harris, Ms Major and Mr Noakes. I cannot accept that they were all wrong about the Applicant’s application to his work, and in expressing concern, before the events relied on, about his health.
It appears that Mr Cho was not well-liked in the workplace; Ms Major was able to recall conversations with about five people who expressed negative views about Mr Cho. But whether this was so is not relevant to the matters I must decide. There were however, personality clashes with some people and he conceded that he had some interpersonal problems with at least two colleagues - Ms Harris and Ms Bloomfield. In his evidence he conceded that he also had disputes with Ms Choon and at least one other (unspecified) person. There was also some criticism of various aspects of Mr Cho’s behaviour in the workplace, characterised by one colleague as ‘bizarre’ and ‘aggressive’.
Dr Allnutt was of the opinion that prior to the events relied on, there was insufficient evidence of a pre-existing condition but he had proceeded, erroneously, on the basis that there had been no non-work-related stressors.
Contrary to the proposition put to Dr Rees by the Applicant’s counsel that the events relied on were ‘the straw that broke the camel’s back’, Dr Rees described them as ‘the icing on the cake’. By that, I understood her to mean, in effect, that there was a contribution by the events relied on, but that that contribution was not so significant as to alter the Applicant’s state. I also accept that Dr Yenson observed that after the July 2012 suicide attempt, the Applicant’s condition, described as anxiety depressive condition, ‘continued to progress’.
In submissions the Respondent referred to Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195, where Sweeney and Woodward JJ referred to the difference between, on the one hand, the sequelae of employment making a sick mind sicker and thus contributing to incapacity and, on the other hand, a sick mind ‘latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity’.
The question is simply whether the condition is a result of the events relied on: Commonwealth Bank of Australia v Reeve and Anor (2012) 199 FCR 463 at [473]. The Applicant experienced a number of non-work-related psychosocial stressors in 2012 and 2013, including:
·financial problems maintaining two households, necessitating the sale of his BMW, and potentially his house;
·isolation from his wife and stepchildren;
·his wife’s gynecological problems;
·a terminally ill mother in Singapore;
·an elderly, chronically unwell father, left in his wife’s care; and
·the death of his grandmother.
None of these issues resolved before the events relied on, and to the extent possible, worsened. The workplace was the environment in which his condition played out.
On the evidence I find it is more likely than not that Mr Cho’s incapacity for work from June 2013 was merely the inevitable progression of his pre-existing psychological condition. I therefore find that to the extent that the Applicant’s condition may have worsened during his employment, the events relied on were not a significant contributing factor in the worsening and so the Applicant did not suffer an ‘injury’ as defined in s 5A of the SRC Act.
Having come to this view it was not necessary to consider if any of the events relied on came within the exclusion of s 5A SRC Act. Therefore, the Applicant is not entitled to compensation under s 14(1) of the SRC Act.
DECISION
The decision under review is affirmed

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

..............................[sgd]..........................................
Associate
Dated: 10 February 2017

Date(s) of hearing: 11-14 April, 8 & 10 June 2016

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: CommComp Law

Counsel for the Respondent: Mr M Snell

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	11-14 April, 8 & 10 June 2016
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	CommComp Law
Counsel for the Respondent:	Mr M Snell
Solicitors for the Respondent:	Australian Government Solicitor