Constantinou and Comcare (Compensation) - [2022] AATA 2380

Constantinou and Comcare (Compensation) [2022] AATA 2380 (26 July 2022)
Division:GENERAL DIVISION
File Number(s): 2018/7631
Re:Constantinou
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date:26 July 2022
Place:Melbourne

The Tribunal, having considered all the evidence before it, determines that the Applicant is excluded from any form of compensation under the Safety, Rehabilitation and Compensation Act 1988 as the action of revoking his deployment was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of that Act.
....................[sgd]....................................................
Ms Anna E Burke AO, Member
Catchwords
COMPENSATION – accepted psychological ailment contributed to a significant degree by employment – whether reasonable administrative action exclusion applies – condition arose from reasonable administrative action undertaken reasonably – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Woodhouse v Comcare (2021) 285 FCR 14
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Mooi (1996) 69 FCR 439
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Su and Comcare [2011] AATA 934
Comcare v Power (2015) 238 FCR 187
Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
REASONS FOR DECISION
Ms Anna E Burke AO Member
26 July 2022

The Applicant, Mr Constantiou, applied for review of a decision by the Comcare Review Officer dated 30 October 2018 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). This determination accepted that Mr Constantiou suffered from a psychological ailment which was contributed to, to a significant degree, by his employment with the Australian Federal Police (AFP). However, the review officer found Mr Constantiou was excluded from any entitlements as his ailment was caused by reasonable administrative action.
On 21 December 2018 Mr Constantinou sought review of that decision by the General Division of the Administrative Appeals Tribunal, submitting the decision was wrong at law and against the weight of the evidence.
BACKGROUND
Mr Constantinou is a current serving sworn AFP officer, holding the rank of Detective. Mr Constantinou joined the AFP in 2002, following completion of tertiary studies and employment in various other full-time roles. In August 2016, Mr Constantinou was deployed to Papua New Guinea (PNG) as a member of the AFP’s International Deployment Group, initially stationed at the Port Moresby International Airport for a period of 12 months. Mr Constantinou was deployed as a Security Advisor (aviation expert) to the Royal Papua New Guinea Constabulary (RPNGC). Originally the critical object of this role was to create and maintain a constructive and coordinated working environment with the RPNGC, non-RPNGC stakeholders and community through relationship building and in accordance with the Police Partnership Plan. This progressed to providing targeted capacity development activities, agreed with the RPNGC, to ensure delivery of a safe and secure APEC PNG 2018.
Mr Constantinou submitted a Comcare claim on 10 May 2018 for a psychological stress injury, first noticing symptoms on 1 September 2016 at 8am having been subjected to workplace bullying, discriminatory behaviour, and assault. Mr Constantinou reported that he first sought treatment on 17 April 2018.
The following is a timeline of events preceding Mr Constantinou’s lodgement of his Comcare claim:
(a)On 22 July 2015, Mr Constantinou completed a psychological assessment conducted by AFP wellbeing for selection into deployment.
(b)On 16 August 2016, Mr Constantinou arrived in PNG and was assigned to the Airport Policing Team.
(c)On 13 September 2016, an incident occurred with Mr Constantinou’s Team Leader, Mr Peter Murphy.
(d)On 13 September 2016, Mr Constantinou emailed AFP Safe Place recommending a refresher bullying training course in the PNG Mission given an incident he had been subjected to that day.
(e)On 21 October 2016, Mr Twist (Mr Constantinou’s colleague) advised Superintendent Raiser of the incident which took place on 13 September between Mr Constantinou and Mr Murphy. Later that same day, Mr Constantinou forwarded Superintendent Raiser the report he had made to AFP Safe Place.
(f)On 22 October 2016, Superintendent Raiser met with Mr Constantinou to discuss the incident with Mr Murphy.
(g)On 24 October 2016, Superintendent Raiser and Commander Giles (Mission Commander) met with Mr Constantinou to discuss the incident with Mr Murphy.
(h)On 27 October 2016, Superintendent Raiser met with Mr Constantinou and Mr Twist to advise that she would be meeting with Mr Murphy later that day as he had returned from leave.
(i)On 27 October 2016, Superintendent Raiser and Superintendent Shane McLennan met with Mr Murphy to put Mr Constantinou’s allegations to him. Following this meeting, Mr Murphy was removed from his role as team leader so he would have no supervisory role over Mr Constantinou. He was counselled, did not have opportunities for higher duties, and did not have his deployment extended.
(j)On 8 November 2016, Mr Dion Burrows lodged on the Complaints Reporting and Management System about Mr Constantinou’s incident with Mr Murphy, as Mr Constantinou had been reluctant to submit a complaint.
(k)On 27 November 2016, Ms Samantha Donoghue, Investigator from Professional Reporting Standards (PRS), travelled to PNG to interview Mr Constantinou.
(l)On 30 November 2016, Mr Constantinou moved to a different residential compound away from Mr Murphy.
(m)On 24 December 2016, Mr Murphy’s deployment to PNG ended.
(n)On 15 February 2017, Mr Murphy returned to PNG in a non-AFP role.
(o)On 31 March 2017, Mr Murphy provided a Natural Justice response to the PRS investigation.
(p)On 30 May 2017, following its investigation into the incident, PRS established a category 2 breach of the AFP Code of Conduct by Mr Murphy for inappropriate behaviour.
(q)In mid-2017, Mr Constantinou was offered a contract extension to remain in PNG until December 2018.
(r)On 3 August 2017, all members in PNG were sent an email reminding them of the Mission Commander’s Orders which prohibited consuming alcohol in Police Stations.
(s)On 21 November 2017, a new AFP Acting Superintendent, Mr Darin Ferguson, was appointed to the team. Acting Superintendent Ferguson was then appointed as Acting Superintendent in the AFP APEC Operations Portfolio which incorporated the airport where Mr Constantinou worked.
(t)On 21 December 2017, Mr Constantinou completed an AFP psychological services assessment form, noting ‘moderately’ ‘repeated, disturbing dreams of the stressful experience’. He noted extreme stress from double standards, the behaviours of others, the AFP’s lack of concern with deployed members, and AFP hierarchy. On the form, Mr Constantinou has written ‘incident last year-assaulted by “Commander”- dealt with by Safe Place and senior officers’.
(u)On 5 February 2018, a new team leader of the airport team was appointed, Mr Andrew Bicker. He filled the position previously held by Mr Murphy.
(v)On 20 February 2018, Mr Bicker sent an email to Mr Constantinou, reminding him to use the chain of command, to share information in its entirety, and not to operate independently.
(w)On 19 March 2018, the new Airport Police Station was opened by the AFP and RPNGC Commissioners of Police.
(x)On 22 March 2018, Mr Robert Wane (PNG Airport Police Commander) invited Mr Bicker to have a couple of beers after work on Friday 23 March to celebrate the successful opening of the new airport office.
(y)On 22 March 2018, Mr Bicker and Mr Constantinou had a discussion about drinking alcohol on police premises. Mr Constantinou denies this discussion took place.
(z)On 23 March 2018, a team BBQ was held to mark the opening of the new Police Station.
(aa)On 23 March 2018, Mr Constantinou was observed with alcohol on RPNGC premises. Mr Constantinou does not deny consuming alcohol with Robert Wane in the Commanders office on police premises.
(bb)On 26 March 2018, Mr Bicker counselled Mr Constantinou about the reported drinking at the station incident and other complaints relating to his work.
(cc)On 27 March 2018, Acting Superintendent Ferguson provided information via email about Mr Constantinou’s behaviour and performance.
(dd)On 31 March 2018, Mr Constantinou was removed from a trip to Brisbane allegedly due to the investigation of the 23 March 2018 incident where he breached Mission Commander’s Orders by consuming alcohol on Police Station premises.
(ee)On 1 April 2018, Mr Constantinou provided a Natural Justice response to the AFP Chief of Staff in relation to the allegation of having consumed alcohol on Police Station premises in breach of the Mission Commander’s Orders.
(ff)On 9 April 2018, Mr Constantinou was advised by email of a meeting to be held on 10 April 2018 to discuss his future in the mission. He was advised that he would be sent relevant paperwork and that he could bring a support person to the meeting.
(gg)On 10 April 2018, a meeting took place between Mr Constantinou and Acting Superintendent Ferguson to discuss Mr Constantinou’s future in the mission. Mr Constantinou had a support person present at the meeting. Mr Constantinou advised that he would provide a response by 26 April 2018. The meeting was electronically recorded, and a copy of the recording was given to Mr Constantinou.
(hh)On 12 April 2018, Mr Constantinou left PNG on recreational leave.
(ii)On 17 April 2018, Mr Constantinou attended his general practitioner in Melbourne.
(jj)On 27 April 2018, Mr Constantinou lodged his written response to the recommendation that he be removed from the PNG-APP Airport team.
(kk)On 30 April 2018, Mr Constantinou’s deployment to PNG was revoked. He was required to return his work mobile phone and computer.
(ll)On 1 May 2019, Mr Constantinou returned to Melbourne. He advised that he saw Mr Murphy at the airport when he was departing.
LEGISLATION
Relevantly, section 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the Act defines an ailment to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the Act, as follows:
5A Definition of injury
(1)In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or;
(c)   an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
...
5B Definition of disease
(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.
‘A psychological condition can be considered either a mental injury pursuant to section 5A(1)(b) or an aggravation thereof, or a disease, by way of being understood as an ailment pursuant to sections 4 and 5B(1)(a) or an aggravation thereof. However, to be considered a disease, the ailment must have been contributed to, to a significant degree, by the employee’s employment. If this threshold is met, or if the condition is considered an injury, then it is necessary to consider whether the exclusion of reasonable administrative action under section 5A(1) applies.
ISSUES
The key issues for determination are:
(a)Did Mr Constantinou suffer from a ‘disease’ for the purposes of ss 5A(1) and 5B of the Act?
(b)If so, was the ‘disease’ suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary provision in section 5A(1) of the Act applies?
EVIDENCE BEFORE THE TRIBUNAL
Medical
Dr Michael Epstein, Psychiatrist, opines in a medico-legal report for the Applicant of 12 March 2019 that Mr Constantiou:
On the balance of probability your client did sustain an injury in the course of his employment with the AFP, that injury being a mild chronic Adjustment Disorder with depressed mood. His employment appears to have been a significant contributing factor to the onset of this injury. He continues to suffer from this condition although it has improved.
Dr Epstein’s report details at length his opinion of the genus of Mr Constantinou’s psychological ailment:
Theodoros Constantinou appears to have been roughly handled by his supervisor on 22 September 2016. Prior to that time there had been two incidents where photographs had been displayed that appeared to be racist referring to his ethnicity. One incident was in 2002 and the other in 2014 that led to action by the Deputy Commissioner in Canberra.
He stated that he had no problems with work colleagues. After the complaint about being “assaulted” in September 2016 he believed that he was not treated the same by his managers and subsequently there was conflict with an acting manager that led to his deployment being revoked. He ceased work at that time and has not worked since then.
He said that he was improving but after reading allegations about him in about July 2018 and again after hearing about questions being asked of his sexual behaviour in Papa New Guinea he felt much more upset and angry.
He has a mild chronic Adjustment Disorder with depressed mood. The “assault” although technically an assault was more humiliating and embarrassing rather than causing any physical injury and this led to a falling out with his supervisor that had significant repercussions. His concern was not only about that particular incident but also about the way his complaints about this situation were dealt with and in particular that the commander in Papa New Guinea seemed to regard the incident as trivial and by implication that he was overreacting.
Subsequently it appears that although asked to stay on for a further period of time after his deployment was due to cease in December 2017 issues arose with another acting supervisor that led to his deployment being revoked and it was after he returned to Melbourne that he ceased work and has not resumed work since then.
He is having psychological counselling every six weeks but in general his mental health has improved and indeed he could return to work immediately. However he has lost confidence in management at the AFP and in my view it would be unwise for him to return to work with the AFP because of his loss of trust. He could work elsewhere however and his mental state would not prevent this but he may be wary about being vulnerable.
…
The performance management undertaken has contributed to his mental health issues but I am not in a position to judge as to whether or not these were performance management issues or whether this was a form of harassment.
He should continue to see his psychologist monthly for at least the next six months. He should continue to take antidepressant medication. Once he returns to work in work that is appropriate it is likely that his mental state would improve.
Dr Nitin Dharwadkar, Consultant Psychiatrist, diagnosed Mr Constantinou as suffering from a Major Depressive Disorder in a medico-legal report for the Applicant of 31 August 2018:
The contributing factors were: the chronic stress due to being harassed and being exposed to racist behaviour (since 2002) , being bullied by boss , being assaulted by his boss, being over worked ,being highly scrutinised and micromanaged by management .
The final work related stressor was: when, on 1st May 2018- being sent back to Melbourne, based on management allegations -that were not really appropriate and/or serious to warrant the management stating that they had lost confidence in Mr Constantinou and thereby the action of being sent back to Melbourne not being a fair or reasonable management action.
To note that Mr Constantinou suffered from depressive symptoms, since Sep 2016: he never really improved but he coped (at work ) albeit with difficulties.
Mr Constantinou reported the following clinical depressive symptoms since Sep 2016 : he never really improved but he coped with difficulties and he continued working on account of his excellent work ethic
He reported early and middle insomnia and would wake up with sweats and anxiety dreams of the assault.
The frequency of anxiety dreams is every night. The dreams were of being assaulted and being bullied at work.
He also told me that he had lowered appetite and had lost 6-7 kgs of weight.
He also reported lowered energy/motivation. He used to be very fit and he stopped running and also does not really look forward to anything and also barley even talks to his own partner.
He has lost pleasure in any activities, he had almost zero interest in social activities.
Some of his friends do not even know he has come back in May 2018.
He had developed an anxious, depressed, mood.
He remained preoccupied with work issues he has been ruminating about work and being humiliated at work.
He reported feelings of frustration.
He has lost all his self-confidence /self-esteem.
He feels useless and ostracised and also feels like he is not good for any job.
He reported periodical difficulties with concentration and easily distracted (reading, conversations) and has developed fluctuating forgetfulness for everyday home tasks and has been keeping lists of chores.
(To note that, In April 2017 he underwent a psychological screening and he was experiencing anxiety provoking dreams and was anxious and had a flat /depressed mood and had insomnia.)
Dr Andrew Howie, Consultant Psychiatrist, opined in a medico-legal report for the Respondent of 12 July 2018 that Mr Constantiou was suffering from an Adjustment Disorder with depressed mood and anxiety and a Major Depressive Disorder:
Mr Constantinou presents with increasing anxiety, and lowering of mood, following the events in September 2016 which he now characterises as an “assault”. His low mood is a consequence of other adverse events, which Mr Constantinou characterises as “bullying”.
Subsequently commencing in late April or early May, Mr Constantinou has experienced low mood, sleep disturbance, poor concentration, poor energy and agitation. This in terms of the narrative offered on 21 June 2018 seems to be the culmination of a long period of stress.

Dr Howie’s report of 30 August 2019 opined:
Mr Constantinou presents with increasing anxiety and low mood following events in September 2016 which are now characterised as an "assault". When assessed in June 2018 by me, my opinion was that he met criteria for diagnosis of a Major Depressive Disorder, but that his treatment was appropriate, and that he warranted a period of time off work of between six weeks and three months. His low mood and anxiety persist, raising the question of:
1. Whether the treatment thus far has been adequate.
2. Whether the ongoing stressors continue to impact his mood.
3. Whether the diagnosis is correct.
It appears on my review of the notes that his low mood, and the development of Major Depressive Disorder, are both on the balance of probabilities directly related to his workplace stressors.
Dr Howie’s supplementary report of 4 February 2020 opined:
To summarise:
·I conclude that Mr Constantinou is unlikely to have been diagnosed with a psychological condition without these later events, but that, on balance of probabilities, the earlier events were necessary also for anxiety and mood symptoms, and the disorders, to develop.
·In my opinion, on balance of probabilities, the earlier events, including that involving Mr Peter Murphy, contributed significantly to the development of Mr Constantinou’s psychological condition.
·I concur with the opinions of my colleagues Dr Donahue, Prof Epstein, and Dr Dharwadkar.
…
As indicated, my clinical impression is that discipline for breaching Mission Commander’s orders and subsequent events were necessary but not sufficient factors for the Adjustment Disorder and Major Depressive Disorder that subsequently developed.
Other factors
Mr Constantinou’s statement of 10 May 2018 reads:
I was the longest serving PNG Australian Policing Partnership (APP) Advisor at Port Moresby airport which had been severely undermanned for considerable periods of time between August 2016 and December 2017. As such I was largely viewed by AFP colleagues, PNG Police and Airport stakeholders as an expert in the PNG Aviation field retaining considerable knowledge which I shared with them constantly to enhance performance and relationships across the board.
I had consistently over this time been overworked addressing mission aviation and AFP APEC Aviation Policing objectives. The mission objective has been amended to support the PNG Police response to the security issues around the Asia Pacific Economic Cooperation (APEC) Meetings scheduled to end in November 2018.
In October 2017 New Zealand Police advisors were deployed to mission and one to the Airport. In November 2017 a new AFP Team Leader was appointed to my team, along with another AFP member. This imposed considerable obligations on me to impart my aviation knowledge and provide effective handovers.
In late January 2018 another AFP member Andy BICKER was moved from a defunct mission area and appointed to an Acting Team Leader role on my team at the airport. Again I was responsible for handover and Aviation knowledge provision. Since BICKER’s appointment in late January 2018 there has been some tension between us, including his micromanagement of my movements and allegations in emails and text messages criticising the transparency of my work. He continually accused me of undermining his authority in my dealings with the PNG Police by not passing on information to him.
Other members of my team also displayed behaviours which have kept me isolated and excluded with awkward silences when I entered a room or conversation and the creation of a team messaging app through Whatsapp from which I was excluded.
In March 2018 another NZZPOL Officer Patrick PAPALLI showed me a message circulated on this application that I took to be critical of me and my professionalism. PAPALLI told me that he was upset that I was being excluded from the team relationship which is why he showed me the message. PAPALLI also told me that he wanted to tell me something that he had heard our colleagues say about me that had made him feel uncomfortable. He said that he would tell me on our pending work trip to Brisbane in April 2018 outside of the mission environment.
I emailed my concerns to the Chief of Staff, Superintendent Leanne RAISER, who was not aware of the NZPOL reporting procedure or Code of Conduct. As result of this bullying I felt increasingly isolated and stressed so much so that it affected my work, judgment and sleeping patterns. There were few friends among the remaining AFP members in PNG in which I could confide. My only remaining friends were my PNG police counterparts with whom I could find support.
During the week commencing 19 March 2018 the new AFP funded Airport Police Station was opened with numerous dignitaries in attendance. To ensure a fuss free occasion I had worked throughout the previous weekend. The remainder of the week consisted of moving AFP offices to the new station and assisting the PNG police to settle into new arrangements. Given my previous experience an inordinate part of my week was consumed in ensuring that the PNG police were accommodated. These efforts left me exhausted.
Reasonable Administrative Action
The email ‘Mission Commander Update 3 August 2017’ from Mr Giles to all PNG-AFP staff reads:
Firstly, just a reminder that the consumption of alcohol by AFP members in all RPNGC establishments is expressly prohibited. The only exception to the above concerns the Officer’s Mess at the Bomana Police Training College, where on official occasions, and with the approval of the Mission Commander and RPNGC Commissioner, alcohol may be consumed).
An email from Mr Bicker to Mr Constantinou dated 20 February 2018 reads:
I understand you have all the connections and all the relationships and this is untenable.
These requests need to come from me and in my absence you.
I understand that you have pretty much run the airport for the last 8 months but I want to move towards a truly cohesive team with the rest of the guys having a say and not just being given enough info to get them through what you tell them to do.
This means a chain of command and sharing of information in its entirety.
This is not meant to stifle your unbelievable appetite for assisting the RPNGC guys and girls but to make it easier for everyone.
An email from Mr Bicker to Acting Superintendent Ferguson dated 27 March 2018 reads:
As already discussed I have taken supervisory action in relation to this incident and the subject is under no illusion that any repeat incident will be dealt with differently. There were some lead up events prior to the actual incident which I have outlined below:
On Thursday Robert WANE mentioned to me that it would be good to have a couple of beers after work on Friday to celebrate the successful opening of the new Airport Office. I advised him that our Commanders Orders state that we cannot consume alcohol at RPNGC locations but I would be keen to have a beer with him elsewhere.
A little later the same day I mentioned this to Theo and he said “he (Robert) knows we can’t drink at RPNGC locations”. That was the last conversation relating to this I had with Theo.
About 1510hrs on Friday, I was about to depart the Airport Police Station as I had a meeting with the owner of the Airvos Apartments in relation to the social club. Theo asked me if I was coming back (which he has never asked me before). I said “no, as I won’t be done until 1545hrs and I will head home from there”.
About 1700hrs on Friday Joel Morris advised that when he and Alana walked out of the office they sit in, Theo was walking up the stairs (or was in the vicinity of) to Roberts office with a some beers in his hand. Allegedly, he looked surprised and that Alana and Joel were still there and said to them “grab a beer from the fridge and come and join us”. Both declined and departed the airport police station.
I advised you of the issue when you arrived back from Cairns on Sunday afternoon and I did locate the email from Commander Giles dated 3 August 2017 which I sent to you. I advised I would be talking to Theo on Monday.
On the morning of Monday 26 March 2018, I had a conversation with Theo about this issue and a number of others that had come to my attention over the past few weeks.
I advised him that I was aware that he was drinking alcohol at the Airport Police Station on Friday afternoon afterhours. I went on to say that he knew that this was not allowed as we discussed this the day before.
I also said that it appeared to me he knew he was going to do this due to his asking me if I was coming back.
I asked him to explain the circumstances of how this occurred.
He was silent for at least 15-20 seconds and I said from my perspective surely you can see how this looks.
Finally, he says “I just need to think about the circumstances that led to this.” Followed by “Robert gave me permission to drink here”. To which I said Robert does not trump Commanders Orders and Robert would also be aware of no alcohol on premises. I mentioned MC’s email from August.
He then made reference to other RPNGC officers drinking there as well who turned up with another box of “brown bottles”. I did not explore this further.
Aside from the consuming alcohol issue, it is my opinion that Theo is doing his best to keep Robert closer to him than me. I believe that this is a further example of this.
I said to Theo that I and the rest of the team would have loved to have a beer with Robert and his team to build the comradery and if discussed I could have sought special approval from Mission Commander and CoP’s office for a one-off approval. I am not averse to team building ideas such as this but it needs to be done correctly to see if we can make it happen or seek alternatives.
I went on to say it appears to me that you are actively isolating yourself from the rest of the team to show yourself as the good guy to the RPNGC. To which he replied that wasn’t his intention.
I then discussed a few other issues with Theo.
I am of the opinion it was a deliberate act to isolate the rest of my team from the RPNGC which is not helping to achieve my goals for us at the airport. I am hoping that this is the wakeup call that Theo needs however one thing I am certain of is that he will not consume alcohol at RPNGC premises again.
Submitted for your information as directed.
Mr Constantinou’s 10 May 2018 statement reads:
On Friday 23 March 2018 a team barbeque was arranged (funded by AFP/NZPOL advisors) to celebrate the opening of the new Police Station. At 3.30pm I was invited by the PNG Airport Police Commander, Inspector Robert WANE to share a drink with him in his private office so that he could personally thank me for my efforts and to celebrate his recent promotion to Inspector. I was concerned that a refusal on my part would offend him, and I was eager to maintain a good relationship with him as I considered that essential to the success of mission goals. I had completed my shift and was exhausted from the week’s activities and accepted his offer. I placed a plain t-shirt over my uniform shirt and joined WANE in the privacy of his office for one can of beer.
Mission Commanders Orders state that AFP members are not permitted to partake of any alcohol at a PNG police station unless permission has been given by Mission Command. However, due to my exhaustion and the stress of the preceding week, I failed to recall the order.
This meeting and my consumption of one can of beer with the Airport Commander in the privacy of his office was reported up to AFP Management by persons unknown to me.
On Monday 26 March 2018 BICKER discussed this incident with me and asked me if I realised that I was not allowed to drink at the police station and I responded that I had not recalled the restriction at the time and was worried that I would offend WANE if I refused. BICKER then said to me that if he had known I was going to have a drink with WANE to celebrate our recent successes that he would have joined us. The matter was left there, and I received no indication from BICKER that any further action would occur.
During that week we were preparing for a trip with 5 PNG police officers to Brisbane Airport to observe Australian airport operations during the Commonwealth Games. I was included as an advisor on this trip which was to depart PNG on Sunday 1 April 2018.
On Friday 30 March 2018 I attended an AFP function at our residential compound. During the evening I saw that MURPHY was also present at the function. I immediately felt sick and left the function. During previous occasions I had been notified that he had been invited to other AFP Functions and I elected to either avoid or attend these functions as a result. (MURPHY obtained AFP Leave without Pay and was currently working in Port Moresby as a contractor for a security firm and obviously had many friends among the AFP members which led to the invitations).
On Saturday 31 March 2018 I was notified by FERGUSON that I had been removed from the pending Brisbane trip due to my consumption of the can of beer with WANE in his office on 23 March 2018.
On Sunday 1 April 2018 I forwarded a Natural Justice response to the AFP Chief of Staff RAISER as I had not been provided the usual formal disciplinary process, nor had I been asked for my version of events. I remained working at the airport with the PNG Police during the week that I would have been in Brisbane as planned.
On Sunday 1 April 2018 I reported my concerns regarding MURHPY’s attendance at the AFP function to an AFP Confidante which was reported to the AFP Confidante Network.
On Monday 9 April 2018 I was contacted via phone by FERGUSON who told me that a meeting was scheduled for Tuesday 10 April 2018 to discuss my future in the mission. He said he would forward paperwork to me which would explain the reason, however he failed to provide any further information at that time. I felt immediately victimised and bullied, and could not understand why I was being treated so unfairly.
Shortly after I received a document from FERGUSON titled "Recommendation For Removal from the PNG-APP Airport Police Team", which indicated that the AFP Executive Management Team unanimously supported the recommendation, or that of removal from the mission entirely. The document accused me of professional misconduct due to the drink I had shared with WANE, and three other issues involving damage to a police station door, the use of a PNG term ‘Dim-Dim’ and my alleged failure to inform BICKER of my every movement. The anxiety I was already experiencing increased dramatically as I was fearful that my career and professional integrity were in jeopardy. I felt that I had been blindsided by the entire issue, and that no proper process had been afforded me which robbed me of the opportunity to seek support and guidance. I felt bullied, victimised, intimidated and unfairly treated.
I was offered the opportunity to respond to this document by Thursday 26 April 2018, whilst I was on recreational leave with my family in Melbourne. I contacted my Union, Australian Federal Police Association AFPA seeking assistance. I have not received a reply as yet however this reply may have been sent to my PNG email account to which I no longer have access. During this time I emailed AFP Safeplace reporting the incidents and forwarded the entirety of documents at hand. The reply from SAFEPLACE was that I was subject to “reasonable management action” and offered no further assistance apart from the provision of contacts to AFP welfare services.
On Thursday 12 April 2018 I left PNG for recreational leave in Melbourne. These incidents had left me continuously stressed and I attended my Doctor on 17 April 2018 and obtained sleeping tablets and ulcer medication.
On Friday 27 April 2018 I returned to PNG at the conclusion of my leave. I was prompted for my response over the leave period by FERGUSON by email and phone. I submitted my written response on Friday 27 April 2018 TO Acting Superintendent Timothy AYERS as FERGUSON had commenced leave (attached).
On Saturday 28 April 2018 I was notified by AYERS not to attend work on Monday 30 April 2018 as the AFP Executive Management Team were to meet and consider my submission.
About 12.00pm on Monday 30 April 2018 I was notified by AYERS to attend a meeting in his office at 2.00pm that day. I attended this meeting with an AFP support person, Detective Inspector Steve MELLICK acting as my AFP Confidante. Also present during this meeting was AFP Chief of Staff Leanne RAISER. I was given a document titled “Revocationof Deployment to PNG-APP” which revoked my deployment to PNG and I was offered the option of three return flights home leaving at 6.15am, 12.00pm or 2.00pm on Tuesday 1 May 2018.
I was directed to immediately return my work mobile phone which I handed to RAISER, which obviously contained evidence relevant to my response against the allegations made, and was issued another phone to use until I left the following day. This obviously further isolated me and made me feel more vulnerable as I had no access to my contact list, and was unable to contact my PNG police colleagues to say goodbye and explain why I was leaving. The mobile phone also obviously contained personal messages between myself and my family, as due to my long absences from home our main contact was through that mobile phone. Normal process is to hand in all assets before you board your flight to depart mission, either at the office or residential security. I felt bullied and ambushed into handing over the phone prematurely and in hindsight believe it is because the EMT did not want me to have access to text messages that support my response against my removal from mission.
I was ordered to vacate my residence and return all my assets including my work laptop (which also included evidence I require) by 9.00am the next morning. MELLICK supported me during this period and voiced his concerns to me that I was being treated unfairly and as a former member of the AFP PRS portfolio, he could not believe how I was being treated. He was also concerned about my welfare and travel home, as he could see how greatly distressed I was due to the treatment I had received.
I attended Port Moresby Airport on Tuesday 1 May 2018 to board the 2pm flight to Brisbane. Whilst I was saying goodbye to some of my PNG police colleagues on the ground floor of the International Terminal, I saw MURPHY seated nearby and I immediately felt sick.
I felt that he must have been told by someone in the AFP that I was leaving, and that he had deliberately attended the airport to intimidate me. I believe as final insult AFP members communicated my departure information to MURPHY. PNG Airport colleagues have obtained the CCTV footage from the coffee shop in which MURPHY was seated. His presence exacerbated my feelings of helplessness and hopelessness adding to my health concerns and anxiety about the future of my career.
I have been the subject of bullying behaviours and poor treatment from the AFP Executive Management Team, my Team Leader and AFP colleagues whilst in PNG. I have not been officially counselled about any of the issues raised, and have received no reasonable opportunity to respond or have agreed outcomes. The rapidity of the decision for removal from mission indicates that no enquires or investigations were conducted in relation to any of the issues raised by me submission to the EMT. I believe that the decision to remove me from mission was made before I had even had the opportunity to submit my response.
I have been subject to previous bullying episodes in the AFP when stationed in Canberra and Darwin which resulted in a F72Application for an order to stop bullying to the Fair Work Commission in November 2014. This was circumvented by the involvement of AFP Deputy Commissioner Leanne CLOSE who was successful in putting a stop to the bullying behaviour.
As an AFP member of 17 years and a designated Detective with numerous outstanding achievements and awards for my service I feel totally betrayed and targeted by the very organisation that I have contributed a significant part of my life to serving.
…
My sense of outrage over this situation is heightened by the fact that I am aware that other AFP members deployed in PNG at Port Moresby have breached mission orders, including drinking alcohol at a police station, and have been permitted to remain on mission.
I believe that the reason I have been the target of such unreasonable and bullying behaviour is that my AFP colleagues and management are uncomfortable with the level of cooperation I have fostered with our PNG police colleagues. Since the beginning of my deployment I recognised the importance of engaging with the PNG police on a social level to gain their trust, and to gain a sound understanding of their perceptions and goals. On a professional level I have always treated them as equals with dignity and respect and as a result of the efforts that I have made, I had developed an excellent, trusting, productive and effective relationship with them all. I was incredibly distressed and insulted to have been accused on numerous occasions by BICKERS that I was consistently and deliberately failing to disclose information to him. At no stage did I do that, it was simply a case of the PNG police feeling comfortable with dealing with me, rather than my AFP colleagues who as a whole failed to make any effort to build relationships with the PNG police.

The Review Officer's reconsideration of determination dated 30 October 2018 states:
You submitted a compensation claim, dated 10 May 2018, for a psychological injury that you state was caused by workplace bullying, discriminatory behaviour and assault. You alleged that you first noticed your symptoms on 1 September 2016 and first sought medical treatment on 17 April 2018.
In a determination dated 24 July 2018, Comcare declined your claim for initial liability for an adjustment reaction with depressive reaction. The delegate was satisfied that you sustained a psychological ailment and it was significantly contributed by your employment with the Australian Federal Police (AFP). However, your claim for compensation was declined as it was considered that your ailment was caused by reasonable administrative action.
Injury
13 September 2016 Incident
On 13 September 2016, Mr Constantinou emailed AFP Safe Place:
Hi team, I write to you to recommend a refresher bullying training course in the PNG Mission given an incident I was subject to today (13Sept 2016).
My team leader entered a hot desk area (Boroko downstairs hot desk office), in which I was working from a desktop in the company of another member, "Emily Ferns) from another hot desk area in an adjoining office
in which other members were working. He said "this is how we do it at the XXXXX XX" and then grabbed my shirt at the top of my forearm and marched me into the other office in front of other members (Peter GRITSCH) and demanded to know where a document was located for which he required to approve my work expenses. He released me and I told him that it was attached. On reentering the link on his computer the document appeared. This is not the first time he has berated my alleged poor work performance before other members.
I felt embarrassed, humiliated and intimidated yet held my tongue in order not to create a scene. In all other respects he remains approachable and supportive.
Given his position, the popularity amongst the leadership he holds and my relative newness to the Mission (3 weeks) , I do not wish this incident to be made public however request that the Mission considers refresher bullying training . If this explicit information is released I believe my position in the mission will remain untenable".
On 10 May 2018, Mr Constantinou provided the following extract to Comcare addressing the question ‘When did your injury happen or when did you notice your disease?’:
In September 2016 I was assaulted by my then Team Leader, Federal Agent Peter MURPHY, in an AFP office, in the presence of other AFP members. I was sitting at a desk next to Federal Agent Emily FERNS when MURPHY hovered over me and said to Emily “This is how we do things at the airport”.
MURPHY grabbed both of my shoulders with force and lifted me out of my chair. He then physically dragged me into an adjoining room in which another AFP member was present. He released his hold on me, sat down at his desk and loudly said words to the effect “where’s the receipt I need to approve”, indicating that he was unable to open the file on his computer. I immediately felt threatened and humiliated and could not believe that an AFP member had physically assaulted me in such a fashion. It was such a shock to me that I was unsure how to deal with the situation.
I did not directly report it to my Superintendent at the time but informed AFP SAFEPLACE (offered by the AFP as an internal confidential avenue) as I believed that I would not obtain a fair hearing from my current managers because I knew that MURHPY had a close relationship with them due to their long history and shared longevity in the AFP.
I confided in colleague Federal Agent Colin TWIST as to what had happened, and he felt that it was too serious an issue to remain unaddressed by management. The following day I was contacted by my immediate Superintendent, Federal Agent Leanne RAISER, who had been advised of the assault by TWIST, and she arranged a meeting with the Mission Commander, Bruce GILES, at which I was present, to address the issue.
During this meeting Mr GILES asked me how the assault had affected me and how I was feeling, and asked how I wanted the matter resolved. I said that it had made me feel intimidated and fearful of MURPHY, and that I did not want to work with MURHPY again. Mr GILES suggested that he arrange a meeting with myself and MURPHY to discuss the issues and shake hands over the matter. I was extremely uncomfortable with that approach, however because Mr GILES was the Mission Commander, I felt that I had no choice but to agree.
This meeting was never arranged. MURPHY was moved to the position of AFP FIFA Field Commander, assisting the PNG Police with the coordination of the FIFA Women’s Under 18 World Cup tournament to be held in Port Moresby in November 2016. I was still put in the position of having to see MURHPY when he came to Port Moresby Airport in that role, and I also had to forward reports directly to him relevant to airport police availability to assist in the requirements of the tournament. Whenever I saw MURPHY I would immediately become anxious, but was forced to remain professional and I felt that I had received no support or resolution in relation to the assault. Essentially I felt that the matter had not been addressed at all and I was expected to forget it had ever happened.
I did not wish to engage with MURPHY at all and felt stressed and intimidated at times with sleepless nights contemplating the assault. A short time after it occurred, the assault was reported to the AFP Complaints Resolution Management System (CRAMS) by other unknown AFP members, and it was investigated by the AFP Professional Reporting Standards Team (AFP PRS). I was interviewed by Federal Agent Samantha DONAHUE of PRS in November 2016 and I gave her my account of the assault and resulting issues.
…
I think it was the following day that I moved to another compound. MURPHY was permitted to stay in the PNG Mission until the end of his contract in late December 2016. I was informed by PRS via email in mid-2017 that an AFP Code of Conduct breach was established against MURPHY regarding the assault. I have received no other correspondence, information or contact from any AFP staff in relation to the matter, including any assistance or support from management or welfare services.
In mid-2017 I was offered a contract extension to remain in the PNG mission beyond my original August 2017 end of mission date. I accepted the offer, and was required to complete a psychological report as part of the extension process. I was notified by AFP Psychological Services that they had identified a stress issue relating to my response of disturbed sleep patterns due to nightmares about the assault, which they said had been recorded in my file. My extension was approved by the AFP until December 2018.
On 23 May 2018, Mr Murphy made the following statement in response to Mr Constantinou’s Comcare claim:
My full name is Peter Charles Murphy. I am a Sergeant of the Australian Federal Police (AFP), with 32 years of service. I am currently on Long Service Leave, working in Papua New Guinea (PNG) having been approved to engage in Secondary Employment. I am currently performing a Security Management role for a company contracted by the Department of Foreign Affairs and Trade to provide security management for Australian Public Servants deployed to PNG.
Between July 2014 and January 2017, I was a part of the AFP’s Papua New Guinea – Australia Policing Partnership (PNG-APP), performing various roles in Lae and Port Moresby. Between May 2016 and October 2016, I was the Team Leader of the PNG-APP Airport Uniform Police Team based at Jackson’s International Airport, Port Moresby. My direct counterpart was RPNGC Inspector Robert Wane.
Senior Constable Theo Constantinou arrived into mission on 16 August 2016 and commenced working at the Airport Team.
As a former member of the PNG-APP, I have been requested in an email dated 21 May 2018 from Coordinator Chris Dillon to respond to a document submitted by former PNG-APP member, Theo Constantinou (Theo).
My responses are below:
Paragraphs 1 – 2: Alleged Assault
The incident referred to by Theo on 13 September 2018 was subject to a protracted and thorough AFP Professional Standards investigation, which saw AFP investigators travel to PNG.
On 31 March 2017, I provided a Natural Justice response to the allegation of inappropriate behaviour. That response is attached to this statement at Attachment 1.
Within that response, I refer to the process which ensued following the allegation namely:
It is disappointing that this issue has been escalated to a PRS Investigation. I believe it is a disproportionate response, to an issue which could have been resolved by mission management at a number of levels.
Firstly, if the complainant had elected to have an initial conversation with me, it would have been resolved at that point. Furthermore, there is a raft of senior and experienced Superintendents within mission with whom he could have sought counsel and resolution. Finally, there is a freely available Commander within mission, with whom he could have consulted. I firmly believe if any of these avenues had been explored, the matter would have been resolved, without the time, resources, cost and stress of a PRS investigation.
I maintain the position that this matter was escalated to a disproportionate level and the issue could have been satisfactorily resolved at a management level.
On 30 May 2017, I was provided with an outcome of the investigation, which specifically refers to “engaging in inappropriate behaviour”. The incident was downgraded from PRS Category 3 to Category 2. There is no reference to the term ‘assault’.
Whilst I have accepted the findings of the investigation, the reference by Theo to the term “assault” is exaggerated and misleading.
Whilst an error of judgement, I maintain the action I took on that day was a light-hearted gesture, with no malice or intent. In the weeks leading up to the incident, I believed Theo and I were developing a good relationship. We travelled to work in the same vehicle and alternated buying coffee and the newspaper.
The incident occurred on Tuesday 13 September 2016. On the following week-end, Saturday 17 September 2016, Theo accepted my invitation to go out on one of my friend’s boats, where he enjoyed the day.
We had met the same friend for drinks after work at the Car Club in Port Moresby. Theo and I both had an interest in rugby league and his son was a contracted player in the Queensland Cup. Theo provided me with one of his representative training tops as a gift.
The voluntary participation by Theo in these social events outside of work hours is inconsistent with a person who feels threatened or intimidated in the workplace.
Theo and I lived in nearby AFP provided apartments at Airvos Avenue. On one occasion, Theo was at another AFP accommodation site (Kermadec) for a Saturday bbq, which I was attending later in the day. He requested that I access his bedroom to retrieve some footballs and bring them to Kermadec.
It is noteworthy that this occurred on the AFL Grand Final Day (1 October 2016), which is some two weeks after the incident.
On another occasion, I was trying to place an online bet, and was struggling with internet reception at my location. I telephoned Theo and he placed that bet on by behalf, by using my log-on and password, which I had provided to him. The bet was on Burleigh Bears in the Intrust Super Cup Grand Final, played on 25 September 2016, 10 days after the incident.
The level of trust being demonstrated between two workmates is inconsistent with a person who feels threatened or intimidated in the workplace.
There was no ill-feeling between Theo and I in the lead up to the incident and I had only recently endorsed Theo to act in my position whilst on I was on leave.
The allegation from 13 September 2016 has been fully and thoroughly addressed. As a consequence, I was counselled by Commander Giles and have completed an online training course, gaining access to the AFP Mainframe at the Australian High Commission. From my perspective, the matter was fully resolved at that time and I am looking forward to returning to work with the AFP in 2019.
I have no ongoing relationship with Theo and do not engage with him socially. It is disappointing that a purely coincidental sighting of each other at an airport brings the minor incident from 2016 back into question.
Paragraph 3
I refer to the allegation that “I felt like he had been told by someone in the AFP that I was leaving, and that he had deliberately attended the airport to intimidate me”.
My current security role in PNG frequently involves me attending the airport in Port Moresby (Jacksons), in order to greet and security brief incoming Australian deployees. On 1 May 2018, I was at Jacksons Airport in my security role, to greet deployees and I had no prior knowledge that Theo was departing PNG on that day. The purpose of my attendance at the Espresso Coffee Shop was to purchase and consume a sandwich for lunch. I had no conversation or engagement with Theo whatsoever.
I have communicated this to Commander Giles in an email dated 1 May 2018, which is attached (Attachment 2). It also contains supporting documentation which confirms the identity and flight details of the incoming deployees.
As such, the allegation I attended the airport to intimidate Theo is completely fictional. The allegation that I would go out of my way to attend the airport to in a pre-mediated fashion to intimidate Theo, is highly defamatory.
Paragraph 4
It is noteworthy that at no time in the daily interactions with Theo between his arrival on 16 August 2016 and my return from leave on 27 October 2016, did Theo mention to me that he was uncomfortable with any aspect of my supervision.
CONTENTIONS
Mr Constantinou
The Applicant contended that his psychological injury, however described, which the parties agree arose from his employment with the AFP, was not contributed to by any reasonable administrative action taken in a reasonable manner with respect to his employment.
He contended that his psychological injury arose as a result of accumulated stressors and experiencing repeated harassment in his long employment with the AFP. He claims to have been significantly impacted by the incident on 13 September 2016 with his supervisor Mr Murphy, which he categorises as an assault. He goes on to note that this action was not reasonable, as assessed by a PRS review, and regardless was not an administrative action.
The Applicant argued that his condition was outside the boundaries of normal mental function and behaviour prior to the disciplinary action of sending him home from mission.
He contended that the action of sending him home from mission for his consumption of alcohol on RPNGC premises was unreasonable and not undertaken in a reasonable manner.
The Applicant argued he had been ostracised by team members, particularly in relation to his adoption of the mission’s goal. He worked closely and cooperatively with members of the PNG police in a way that others in the mission failed to do. His preparedness to closely cooperate with members of the PNG police both professionally and socially resulted in him being branded as ‘self-isolating’. The evidence suggests that the ‘self-isolating’ was constituted by his association and good personal relations with members of the PNG force.
He argued that rather than self-isolating, he was ostracised and came to be viewed as a person to be excluded from the mission. He further noted that the supposed reasonable administrative actions were merely an excuse to conduct that exclusion through administrative measures.
The Applicant contended that his conduct, in associating with the newly appointed PNG Inspector and toasting his success by accepting a can of beer, was not a repudiation of the mission but a pretext for discriminatory action against him by members of the AFP on mission.
Comcare
The Respondent accepted that the evidence indicated that Mr Constantinou’s psychological injury arose from his employment with the AFP, namely the disciplinary action taken in respect of his breaching mission commander’s orders, and is therefore excluded from the definition of injury by s 5A(1) of the Act. It went on to argue that these actions were all reasonable and undertaken in a reasonable manner, and relied on the report of Dr Howie where he stated:
my clinical interpretation is that the employment discipline of the applicant was a necessary but not a sufficient feature of his developing mental health symptoms and disorders.
…
my opinion, on balance of probabilities, that the applicant’s discipline for breaching Mission Commander’s orders was a necessary condition, though not sufficient, for his current condition.
It further relies on the report of Dr Epstein dated 12 March 2019, where he stated:
On 23 March 2018 he had one drink of alcohol while at the AFP airport with a newly appointed inspector of the RPNG Constabulary, Robert Wane. … As a formal process commenced he became increasingly anxious and dissatisfied with his work.
…
On 9 April 2018 he was advised by telephone of a scheduled meeting the following day to discuss his future Mission…. He was given until 26 April 2018 to provide a response.
His mood deteriorated. He had difficulty getting to sleep and then slept poorly and woke feeling unrefreshed. He lost interest in things that he normally enjoyed including the company of family and friends. His concentration was poor and he was easily distracted. He developed social anxiety. He wondered about his future and felt helpless and hopeless.
…
The performance management undertaken has contributed to his mental health issues
Without the discipline process which followed the applicant breaching Mission Commander’s orders the applicant would not have suffered from a mental health condition.
The Respondent argued that reasonable administrative action includes ‘a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment’. It contended that whether an action is reasonable administrative action taken in a reasonable manner is to be determined by taking into account the circumstances and facts giving rise to the requirement for the administrative action, the way the action impacts on the Applicant, the circumstances in which the administrative action was implemented, and any other relevant matters.
It contended the actions taken by the AFP in response to the breach by Mr Constantinou of Mission Commanders Orders and various instances of counselling in relation to his performance of duties were administrative actions. This included the consumption of alcohol on RPNGC premises on 23 March 2018. This also included instances of leaving the Airport Police station during shifts, ongoing failure to comply with directions of his team leader, disrespect to colleagues, failure to uphold the values of the AFP and mission, undermining his team leader/other advisors, and damaging a door to the PNG-AFP Office.
The Respondent contended that the AFP is required to take practical steps to ensure its members adhere to, and uphold, the values of the AFP and the Mission. Accordingly, it contended that the administrative actions, including further steps taken by management in dealing with the above, were reasonable and appropriate.
It further contended that the relevant administrative actions were undertaken in a reasonable manner as Mr Constantinou was provided with notice of the meetings, given the option of bringing a support person to the meetings, provided with written statements of the actions being considered, and provided with an opportunity to respond to the allegations, including the ability to seek an extension of time to respond.
The Respondent contended that prior to 17 April 2018, Mr Constantinou did not suffer from a condition outside the boundaries of normal mental functioning and behaviour.

The Respondent goes on to argue that had Mr Constantinou suffered a psychological condition due to events in the workplace prior to 18 February 2016, he would have indicated as much to a health professional, as he ultimately did on 17 April 2018. The Respondent highlights that during the period of April 2002 to 17 April 2018 there was a lack of complaints by Mr Constantinou to his GP about work issues relating to his employment with the AFP. It relies on the report of Dr Howie dated 4 February 2020, where he stated:
Clinicians often think in terms of necessary and sufficient conditions for a disorder to develop.
…
I conclude that the event with Peter Murphy was not a sufficient condition for him to develop a disorder to a degree that therapy was sought, and a diagnosis made as part of this process.
CONSIDERATION
There was no dispute between the parties that Mr Constantinou suffered from a condition outside the boundaries of normal mental functioning and behaviour that was contributed to, to a significant degree, by his employment with the AFP.
The dispute between the parties is two-fold: the actual onset (time period) of Mr Constantinou’s psychological condition and how it arose.
Mr Constantinou contends his psychological condition was a result of a myriad of bullying events prior to his deployment. He argues it was contributed to, to a significant degree, by the September 2016 incident, through the inappropriate behaviour of his then supervisor Mr Murphy, and eventually manifested in him seeking medical attention.
Mr Constantinou gave the following evidence at the hearing:
Now as far as I can see, the first record that you had of any treatment for, should we call them mental ill health problems was 17 April 2018, does that sound right to you?---Yes, that's correct.
Why didn't you go and get help earlier?---My concern at the time was the…The stigma associated in police with any mental health concerns, I tried to fight it through, I hadn't had any - given the response over the years from AFP and in respect of some of my complaints, I was loathed to actually approach the AFP and given the response of my commanders to the initial incident with Murphy, I was loathed to tell them about it, thinking that they might have an excuse to remove me from the mission. So I was - I didn't seek it and I tried to fight my way through what my concerns were because of those factors, especially the stigma associated with mental health amongst police officers.
Mr Constantinou contends his claim should not be excluded, arguing the administrative action of revoking his redeployment was neither reasonable nor taken in a reasonable manner.
Comcare contends that Mr Constantinou developed symptoms of his psychological condition following the revocation of his deployment to PNG in May 2018, and that this was 'reasonable administrative action taken in a reasonable manner'. This is significant because it is an essential precondition to the exclusionary provision in section 5A(1) of the Act which, if made out, excludes Mr Constantinou’s claim for compensation.
Disease
The review officer's reconsideration of determination dated 30 October 2018 states:
In order to accept liability for compensation it must be established, on the balance of probabilities that:
-    You sustained a psychological ailment (or an aggravation of a psychological ailment) that is outside the boundaries of normal mental functioning and behaviour;
-    The ailment was contributed to, to a significant degree, by your employment; and
-    The ailment did not result from ‘reasonable administrative action’ as defined in the SRC Act.
The first two issues are not in dispute. The determination dated 24 July 2018 has been reviewed and there is no dispute that you sustained a psychological ailment that was contributed to, to a significant degree, by your employment with AFP, specifically an adjustment disorder. The new report from Dr Dharwadkar opined similar findings to that of your general practitioner, Dr Margaret Donohue, and consultant psychiatrist, Dr Andrew Howie. The evidence of Dr Howie is preferred. He wrote that the employment factors contributed to your adjustment disorder, however, could not find the link between employment factors and the development of your major depressive disorder.
This was on the basis that any link between the development of your major depressive disorder and your employment was unclear. Dr Dharwadkar while considering that you met the criteria of a major depressive disorder, did so by the same symptomology that Dr Howie found that you met the criteria of an adjustment disorder. Notwithstanding, the precise diagnosis of your psychological condition, it is clear that you meet the criteria of a psychological condition.
The Tribunal is satisfied on all the available evidence that Mr Constantinou sustained a psychological condition as a result of his employment with the AFP. The Tribunal is not able to determine the precise diagnosis of Mr Constantinou psychological condition given the differences in the evidence provided by the medico-legal consultant psychiatrists. Nevertheless, the Tribunal finds that Mr Constantinou suffered outside the boundaries of normal mental functioning and behaviour.
The Tribunal is satisfied that Mr Constantinou’s mental health condition was significantly contributed to by his employment with the AFP, such that it is a ‘disease’ within the terms of section 5B(1) of the Act.
Counsel for Mr Constantinou submitted that:
(a)There was no dispute between the parties that Mr Constantinou suffered from a psychological condition as a result of his employment. The question for the Tribunal was: when did the injury or disease occur?
(b)The Tribunal should be guided by the leading case of Comcare v Mooi (1996) 69 FCR 439, Drummond J states at pages 443-445:
It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
…..
Only conditions involving a disturbance of the normal functions of body or mind are within the term “disease”, as defined, and thus “injuries” for the purposes of s 14(1) of the Act.
(c)Mr Constantinou first experienced major depressive disorder in 2016 because of the incident with Mr Murphy, relying on the cogent oral evidence of Dr Dharwadkar:
T: …you’re now saying that a work related stressor in May 18 contributed…can you just reconcile these two things for us please.
D: …with MDD…it’s generally never one factor which causes the condition, for example, I see a lot of police officers and ambulance officers and it’s never the final event which they attended, the traumatic event which they attended, and caused them to start seeking treatment and…made them stop work…which was the only contributing factor. It was the state of events prior and building up to that and in fact, most of these officers, the symptoms start much earlier, it’s only the final seminal event that they realise they just can’t cope and start seeking treatment, so my answer is really that yes, the symptoms started in September 16 but the final stressor on 1 May 18 was enough to tilt the balance where he wanted to get treatment, he couldn’t cope at all so it, it did contribute to making it worse but the condition was already there.
…
T: …Mr C gave evidence…that he first sought medical treatment for his condition on the 17 April 2018…assume that’s correct, does this pose any difficulty for your opinion that he already had a condition by then, that had its onset a year and a half or so earlier?
D: No we do see…a lot of people coming with host of conditions, not just MDD, where the onset has started several months, sometimes a year or two before they actually seek treatment, because Mr C’s resilient nature meant that he was able to cope with the symptoms to as much as he could to do his work, but his symptoms were already there… this is all dependent on the interview I had with Mr C.
…
M: Tipping point for this is that, you have made this statement that the condition started from September 2016 and then, the straw that breaks the camel’s back may be the performance appraisal in 2018 and you have made that assumption on the basis of the history taken from Mr C.
D: that is correct.
…everything started way back in 2002…he took it in his stride because…he was a strong, stoic police officer, and if…he complained about it would go against career or…status, all those definitely left a mark somewhere in his core and therefore when that incident happened in September 2016, it became such a big incident because it was perceived by him as being a…major incident. If all the events did not occur before September 2016 had never happened, then of course the perception of that incident…would be of far lesser intensity. That’s why I make the point that it’s not one incident, it’s…cumulative, evolutionary aspect…
…
M: Given that these stressors are compounding, could they have also impacted how Mr C was behaving with his peers between 2016 and 2018?
D: yes…it must have, because when someone is starting to get depressed or is depressed to some level…they would be more sensitive to comments, they may act out in a more agitated, angry manner…they would take small[er] stressors or relatively trivial factors as perceiving as it’s against them and act out in a manner in which they otherwise would not act out…that goes with that incident which we did not come to…alcohol incident, and that was according to Mr C, it was something which everybody did… but he was singled out, and I don’t know why he never said that he did not do it, so he accepted that incident, but he saw that as yet another place where he was victimised and targeted, whereas it was considered not such a big deal...—in his mind --- … in his opinion.
M: In his mind, he felt that he had been singled out for heftier treatment, for breaking the rules than other people had been
D: …although he may not have been diagnosed and he had not sought treatment, and he was still having a capacity for work…excellent point you make because that is what I was alluding to in the history that, all along, a lot of his behaviour can be explained in the fact that he was starting to decompensate, and therefore he was starting to behave in a manner which was a bit agitated…angry…frustrated.
(d)Dr Dharwadkar and Dr Howie both agreed that Mr Constantinou was a resilient man. In their extensive clinical experience, it was not unusual to see late clinical presentation of psychological disorders, especially in the context of police officers/first responders/defence personnel. It would have been highly unlikely that Mr Constantinou would have sought help from his general practitioner within weeks of experiencing symptoms in 2017.
(e)Alternatively, if the Tribunal does not accept this submission, it should accept Dr Howie’s opinion that:
Adjustment Disorder was not diagnosed in Mr Constantinou until May 2018. However, in my opinion it is likely that the condition was present for some months before this.
(f)Section 14 of the Act requires that Comcare pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The Respondent notes that malfunction of the mind is not a high bar and that Mr Constantinou had suffered from an impairment in accordance with the Act.
(g)The medical evidence of Dr Dharwadkar supported this assertion as his evidence was that Mr Constantinou’s Adjustment Disorder did not result in total incapacity for work.
(h)Under section 4(9) of the Act, incapacity for work encompasses not just incapacity to engage in any work but work at the same level as before the injury occurred.
(i)Dr Howie gave careful evidence; he agreed that Mr Constantinou’s Adjustment Disorder was present before 9 April 2018, however he opined that Mr Constantinou didn’t meet the diagnostic criteria of Major Depressive Disorder until after the events of 9 April 2018.
(j)Dr Howie’s evidence was that Mr Constantinou had a significant psychological disturbance, which was present before 9 April 2018, which fulfilled the requirement of an impairment. He also opined that Mr Constantinou’s incapacity for work was 50/50.
Counsel for Comcare submitted that:
(a)Even if the Tribunal accepted that Mr Constantinou’s psychological condition had been quietly increasing from 2016, it did not necessarily mean he had suffered an impairment.
(b)There was no direct medical evidence before the Tribunal which could establish when Mr Constantinou’s psychological condition first manifested itself; there were no medical records from his general practitioner, he was never prescribed antidepressant medication, and he had not seen a psychologist or psychiatrist prior to April 2018.
(c)There was no evidence that Mr Constantinou’s psychological condition prevented him from being able to undertake his work until 9-10 April 2018; his performance appraisals indicated his work was satisfactory and there was no evidence his work capacity was at a level below his accepted performance standard following the 2016 incident.
(d)It was not until his deployment ended, as described by Dr Epstein, that he decompensated in response to the 9 April 2018 events; it was this event that was significant, and without which an incapacity for work and impairment would not have resulted.
(e)Even if the Tribunal accepted that Mr Constantinou had an Adjustment Disorder before April 2018 and suffered from an impairment, it was not until after 9 April 2018, due to reasonable administrative action, that Mr Constantinou developed a different and more profound disorder which caused him to be incapacitated for work as well as impaired. The causal point was 9 April 2018 where evidence of decompensation into a serious disorder is seen.
(f)In those circumstances, the Tribunal needed to decide whether it was an aggravation and, if so, that no compensation is payable because significant factors of development of the condition arose solely from reasonable administrative actions.
(g)The Respondent drew attention to the unanimous Full Court decision of Woodhouse v Comcare (2021) 285 FCR 14 at [89]-[90]:
The continuing effect of the “contribution requirement”
It follows that Comcare’s submissions in this respect were more correct than those of the applicant. Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an “injury”. In the case of an ailment said to constitute an “injury” on the basis that it is a “disease”, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment. (For the avoidance of doubt, this does not require causation in the sense of a “but for” test: Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 [67]). In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.
Conversely, the applicant’s preferred construction should be rejected. Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.
Considering all the medical evidence, the Tribunal concludes that it is probable that, but for the 9 April 2018 phone call between Mr Constantinou and Acting Superintendent Ferguson discussing Mr Constantinou’s future in the mission, his psychological condition would not have arisen. The Tribunal relies upon the oral evidence of Dr Epstein:
M: Dr E bear in mind the background to this, which I’m sure you’ve read but just to clarify, is that Mr C’s actual Comcare claim relates to the 2016 incident as being part of the trigger. With that in mind…and having read Dr D’s commentary that stressors build up…straw that broke the camel’s back was the reprimand in April 2018 that sent him home from PNG…you’ve reached a different conclusion to Dr D?
D: Not completely. What I’m saying is that I think there were stressors going on before this event but they weren’t manifested by ongoing symptoms…and it seemed that after this telephone call, I don’t think he’d had the meeting at the time that he started becoming symptomatic. But clearly, he’d been made manifest that this particular incident had been taken very seriously and there are other issues as well. It was at that time, it seemed to me, there was this real understanding that this may well jeopardise his deployment or his employment.
The Tribunal also draws on the oral evidence of Dr Howie, in which he opined that the events of 9 April 2018 and the early stressors of 2016 were jointly sufficient to give rise to Mr Constantinou’s psychological condition:
H: …prior to the disciplinary event in April 2018, Mr C was significantly stressed by events in his workplace, two of them have occupied a lot of the pages in the documents of evidence, that is the instance of what he described as bullying over his ethnicity and the presentation of the pictures, the second being…where he claimed he had been assaulted…whether this was precisely as [he] had stated it or whether it was more in terms of play fighting – the kind of thing that friends might do together or family members might do together – whatever it was, something happened. The clinical indication was that it was very stressful for Mr C, we have references in the psychologist’s assessment, we have the items of history obtained by my two psychiatrist colleagues and the General Practitioner, we have a vulnerability there arising. In my fourth report, I tried to find a language of concepts that psychiatrists and lawyers might have in common, but there’s a big picture too, that is that, what we have here seemingly on the face of it is…a robust individual…passing police qualification, adventurous enough to have been involved with the Northern Territory police, to go to Papua New Guinea who, if prior events had not had an impact, suddenly a snowflake in the desert…folds with a singular interaction with his superiors which leads to a decline which is clinically inexplicable I’m thinking. Unless you’re positive that he was significantly stressed and the whole flavour of his interactions with the police force and his employers had caused him significant stress up until this point. In the language of the psychiatric formulation and psychological formulation, of course the event of April 2018 was a precipitating event, clearly he was functioning better before that happened. But there are also the predisposing and perpetuating factors for the stress, and is very much part of the way psychiatrists and psychologists view the world clinically to be looking for those things…There is a bias inherent in that, the bias is that our whole profession…is set up to find out what is going on with an individual for therapeutic purposes…but having taken that into account, I think there were significant stressors arising from the prior events…We have differed over whether an adjustment disorder was present, or whether it went straight to a MDD…the threshold for diagnosis for adjustment disorder is astonishingly low, can even be events that people would ordinarily experience as inconsequential which because of particular vulnerabilities in that individual, suddenly become significant…Nonetheless I think it was sufficiently significant, that it is not merely the events of April 2018 that gave rise to his decline and subsequent pathway. Mr W asked me… a very simple question in closing, did I think that ‘but for’ events of April 18…would his current clinical pathway wouldn’t have happened? and I agreed with that. But for those events, it wouldn’t have happened. But I would equally assert that but for the stressful interactions with his employers…this pathway would not have happened either…I think that the events of April 18 were necessary conditions for this, but equally the earlier events were necessary conditions also, and I think they were jointly sufficient…
…
T: …That means someone having a condition and battling on for some time, and then at a later point presenting to a clinician, a doctor or psychologist…?
H: That’s correct.
T: Would you say that that’s particularly the case, of a late clinical presentation, is that particularly the case when dealing with police officers in your experience?
H: That’s a very interesting question… certainly been my experience when dealing with the military and the services in general… particular example I would give is the Department of Veterans Affairs where cases of trauma come to light years and in some instances decades after the traumas which gave rise to them, your question is about police, I would say also however that it’s true…of the general population, it’s possible for traumas to happen, peoples resilience to keep them functioning and are not presenting, and only for them to present some time later when their factors for resilience are overwhelmed. So, as a general statement, that’s my experience.
T: … No dispute that Mr C’s first presentation to a clinician was on 17 April 2018…he attended his GP…it’s likely that he had clinically significant symptoms for some time prior to that, isn’t it?
H: I think so, yes, sir... the usual story that we hear from patients is that they have tried to cope the way they normally do, in fact most times people are successful in doing that, because we see only a fraction…of people who might have mental stress or mental illness, they might then raise an issue with their family, or others, who might then guide them to seek further help. Certainly, seeing a GP can be quite some way down the track and a psychiatrist will often see a person even further down the track than that…so in general terms, without specific reference to Mr C’s situation, that is the way I conceive the usual pathway by way in which we or GPs or psychologists would see people.
T: You made a passing reference earlier in your evidence that your opinion may have modified slightly since your final report, I just wanted to ask you about the psychological screening of December 2017. Do you remain of the view…?
H: I remain of the view that that indicated a significant level of stress, perhaps not at the threshold to make a diagnosis, although I don’t know because a comprehensive assessment in those terms wasn’t done, but my opinion reading the documents was that a significant level of stress was identified in the psychologist’s documents.
T: So if the first presentation was 17 April 2018, there was a psychological assessment with significant stress December 2017, are you able to say on the balance of probabilities approximately when you think a mental disorder was present?
H: that is very hard and I’d need to- I think because the timeline is complex and it’s some time since I’d considered the documents in detail, I would need to look carefully at that but my opinion is that a diagnosable mental disorder, for what it’s worth, was present before…the disciplinary event took place.
T: There was a significant disciplinary event on the 10 April 2018 where Mr C had a meeting, is that the one that you’re referring to there?
H: Yes sir.

Counsel for Comcare submitted that:
a)The actions taken by the Respondent, outlined in the table in paragraph 63 above, were administrative actions.
b)The Tribunal should be mindful of the determination in Comcare v Drinkwater (2018) 260 FCR 150, where a process led to the final outcome and not one singular event, at [71]:
i) In the present case, the fact that this administrative action was “in respect of” Mr Drinkwater’s employment was highlighted by the decision-making processes leading up to it: see [2017] AATA 1228 at [12]- [20], [22]-[27].
c)The AFP Executive Management Team (EMT) had undertaken a disciplinary process following Mr Constantinou’s breach of Command orders which had resulted in him being sent home from mission, and these constituted administrative actions which were reasonable.
The Tribunal finds that the EMT of the AFP mission in PNG had undertaken a decision-making process to arrive at a conclusion that Mr Constantinou’s breach of Command orders warranted disciplinary action in the form of revocation of his deployment. The Tribunal finds that this constituted an administrative action as envisaged by the Act.
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
…
(d) reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
…
(f) anything reasonably 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 Tribunal is satisfied that the disciplinary procedure against Mr Constantinou was an administrative action as envisaged by the Act. The Tribunal determines the action was not operational in nature, involved an administrative action specifically directed to Mr Constantinou and specifically about Mr Constantinou, and resulted in Mr Constantinou’s failure to retain a benefit.
Was the administrative action ‘reasonable’ and ‘taken in a reasonable manner’?
Counsel for Mr Constantinou accepted that the disciplinary actions which lead to Mr Constantinou being removed from the Brisbane trip and his deployment being revoked were administrative actions. But they contended that these were unreasonable and undertaken in an unreasonable manner for the following reasons:
a)Mr Constantinou had already been disciplined by reprimand by Mr Bicker; Mr Bicker’s evidence was he thought he had dealt with the matter appropriately. Mr Bicker had conveyed to the EMT that Mr Constantinou understood this was never to happen again. Moreover, Mr Constantinou was subsequently punished two more times prior to his removal from the Brisbane trip and being sent home from mission.
b)The infractions were not worthy of the punishment Mr Constantinou received. Objectively, when considering Mr Constantinou’s conduct, the infractions were not particularly serious. Mr Constantinou’s evidence was that he drank half a can of beer, was in casual clothes, in the privacy of Mr Wane’s office and was not drinking out the front of the station. He accepted he had done the wrong thing, apologised in writing, and Mr Bicker had said he wouldn’t do it again. The evidence from Mr Giles was that PNG officers were drunk out the front of the Police station, and it was accepted that this was serious. However, the administrative action needed to be directed to Mr Constantinou’s behaviour and not public relations implications for the mission.
c)Mr Giles’ evidence was that the mission was becoming more serious, and standards needed to improve with the change of direction to ready PRNGC staff for APEC. Accordingly, the EMT’s action towards Mr Constantinou were unreasonable as he was used to a different standard.
d)The other issues raised about concerns with Mr Constantinou’s behaviour were trivial. The incident in which Mr Constantinou damaged a door was patently a trivial matter not worthy of being sent home, and the issues Mr Bicker had with Mr Constantinou’s adherence to AFP core values were simply teething issues with Mr Constantinou adjusting to a new accountability structure and leadership style. Particularly as, prior to this, Mr Constantinou had run the airport team for most of 2017 without supervision. The argument that Mr Constantinou’s behaviour had been so terrible that he had to be sent home was undermined by management offering him the Team Leader role, and this presented a real inconsistency issue for Comcare’s case.
e)Mr Constantinou had been asked to build a relationship with the RPNGC and had been held responsible for doing so. Yet the Respondent is suggesting he had crossed a line because he had established a close working relationship with the RPNGC members.
f)In comparison to how EMT had treated Mr Murphy, fundamentally the two men were treated very differently. Mr Murphy had not been sent home, had his deployment extended, and was simply moved out of direct line of command of Mr Constantinou. Mr Murphy’s action had been referred to PRS whilst Mr Constantinou’s had not, but Mr Constantinou had been sent home from mission. Mr Murphy received preferential treatment as he was part of the ‘in-crowd’ whilst Mr Constantinou was considered an outsider.
g)Mr Constantinou had been singled out and made an example of. Ms Raiser’s evidence supported this proposition as she indicated that sending Mr Constantinou home sent a message to the rest of the mission about acceptable standards and, in these circumstances, was indicative of a heavy-handed approach which smacks of unreasonableness.
Counsel for Comcare submitted that the administrative actions taken against Mr Constantinou were reasonable and undertaken in a reasonable manner for the following reasons:
a)Following well-established case law, the Tribunal was required to determine a question of fact against the ordinary standards of reasonable employers in all the circumstances of the case.
b)Mr Constantinou was fully aware that he was not allowed to drink on RPNGC premises, and this information had been reiterated to all AFP officers on mission via email on 3 August 2017.
c)The consumption of alcohol on the premisses was not a trivial matter, especially when one looks at the consequences, particularly potentially significant reputational damage to the AFP, the people working on mission, and the Australian government.
d)The AFP is required to take practical steps to ensure its members adhere to and uphold the values of the AFP and the mission. The counselling action taken by Mr Bicker and the further steps taken by management in dealing with Mr Constantinou’s ongoing failure to comply with directions of his team leader, disrespect to colleagues, failure to uphold the values of the AFP and mission, including the breach of Mission Commanders Orders prohibiting consuming alcohol on RPNGC premises on 23 March 2018, undermining his team leader/other advisors and damaging a door to the PNG-APP office were reasonable and appropriate actions.
e)Mr Constantinou’s disease was therefore excluded from the definition of injury by s 5A(1) of the Act.
f)There was no moral equivalence in what may or may not have happened to someone else. The suggestion that there is an equivalence between Mr Murphy’s actions and how he was treated by the AFP, and Mr Constantinou’s actions and how he was sanctioned was ridiculous.
g)Mr Constantinou was not a credible witness as he continued to put forward the proposition that he was badly manhandled by Mr Murphy in front of witnesses. The witnesses cited by Mr Constantinou told investigators that they thought the incident was a joke, there was no evidence of his uniform being affected or torn, there was no complaint from Mr Constantinou yelling “get your hands off me” or “what are you doing”, such that Mr Constantinou’s description of the event was so implausible it bordered on ridiculous.
h)Mr Constantinou was provided with notice of the meetings, he was given the option of a support person attending the meeting with him, provided with written statements of the actions to be considered, and provided with an opportunity to respond, including the ability to seek an extension of time to respond.
The Tribunal finds that the EMT of the AFP PNG mission adopted a reasonable disciplinary process in respect of Mr Constantinou’s breach of the Mission Commander’s orders. Mr Constantinou was afforded procedural fairness in the disciplinary procedures as he understood the case against him and was given a reasonable opportunity to respond. Mr Constantinou was notified of intended meetings to discuss his situation, provided time to submit written responses, and given the opportunity to bring a support person to the meetings.
The Tribunal considers that the EMT’s actions were a reasonable and proportionate response to a breach of mission command. The Tribunal does not concur with the Applicant’s counsel that the review by the EMT was disproportionate and the drinking of alcohol in breach of such command was trivial. Nor does the Tribunal consider Mr Bicker’s reprimand sufficient to deal with Mr Constantinou’s consumption of alcohol on RPNGC premises. The Tribunal, having reviewed the evidence before it, concludes that there is no cogent evidence which indicates that it was unreasonable for the EMT to have conducted the review of Mr Constantinou’s breach or impose the sanctions.
The Tribunal considers that Deputy President Dr P McDermott’s decision in Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769 is analogous where he found, at [307]:
In Reeve, Rares and Tracey JJ pointed out that there is a non-exhaustive list of examples of “reasonable administrative action” in section 5A(2) of the Act. The workplace investigation would in my opinion be a reasonable administrative action as it satisfies section 5A(2)(a) of the Act as being a reasonable appraisal of the employee's performance, as well as satisfying section 5A(2)(e) of the Act as being anything reasonable done in connection with an action mentioned in s5A(2)(a) of the Act. I have concluded that the workplace investigation is a reasonable appraisal of the applicant’s performance in the administration of the Code of Conduct and policies affecting personnel. I have also concluded that the workplace investigation was a reasonable disciplinary action (whether formal or informal) taken in respect of the applicant’s employment under section 5A(2)(d) of the Act.
The Tribunal was impressed by the candour Mr Constantinou continued to exhibit towards his admittance of consuming alcohol on the RPNGC premises. However, his testimony about the events of 23 March 2018 did not appear reliable as they were at odds with every other eyewitness account of the event.
The Tribunal also did not find Mr Constantinou’s claim that he had forgotten the Mission Commander's orders about consumption of alcohol credible. The command appeared self-evident to the Tribunal. The Tribunal also questions why Mr Constantinou had gone to the trouble of placing a t-shirt over his uniform if he thought he was not in breach of any command orders. The Tribunal relied upon Mr Constantinou’s evidence at the hearing:
Now, you maintain that on Friday, 23 March, you were invited by Inspector Wane, a senior PNG officer at the airport; is that correct?---Invited?
Sorry, invited to have one beer?---Yes.
And do you recall, from the information that you've been provided with in connection with your workers' compensation claim, that there is at least this allegation, that two police officers saw you at the Jackson Airport area, at where you gain access to the PNG Police Station, with a T-shirt on over your uniform; is that correct?---That's correct, yes.
And also observed that you were carrying some beer; do you recall that?---I was carrying one can of beer, yes.
One can of beer. And how did you get that one can of beer?---It was in a fridge in the mess room of the adjoining building.
And when you say the mess room, is that an AFP New Zealand mess room or was it a general mess room?---It was a general mess room for everybody.
For PNG officers as well?---As well, yes.
And were you there with Inspector Wane in that mess room at any time? ---Not with Inspector Wane, no.
You see, I think your story is that you were invited by Inspector Wane to have a beer and you went with him to his office?---That's correct.
Now, earlier in the day, had you taken the car to a nearby supermarket; did you buy any beer at all?---No.
Did you drive your car to a nearby supermarket on that day; do you recall? ---I don't recall. I may have driven it to pick up some lunch.
Yes. But, what about these words, "Grab a beer from the fridge and come and join us"?---No, I don't think I said that, no.
You don't deny you said it though; do you?---Well, I deny I said it, yes.
You do deny it?---Yes, from recollection I think I just said, "I'm just going to toast Robert" or something, I'm not quite sure.
Now, in saying you were just going to toast Robert, Robert's a reference to Inspector Wane; is it not?---That's correct.
And you taking even one can of beer would be in breach of the mission commander's orders?---Yes.
Not to consume any alcohol in a Papua New Guinea police station?---I understand that, yes.
So, at the time you knowingly breached those orders; did you not?---At the time I wasn't - not knowingly no. I'd forgotten those orders I can honestly say, yes.
And you know that Inspector Bicker will come here and tell the tribunal that he had a conversation with you the day before and the question of having drinks in the police station arose, he will say he recounted what the commissioner commander's orders were and you agreed with him and it was on the basis that Inspector Wane had asked Bicker to go and have a drink with him; you understand that?---I don't recall that conversation with Andrew.
No. Do you deny categorically it didn't happen?---Yes.
You believe what Inspector Bicker's doing, to use a vernacular, was verballing you?---Yes.
Is he not?---Yes, I don't think we had a conversation about any drinking.
Well, you have used the expression 'being verbal', have you, in one of your statements in response to the claim for compensation; yes?---(No audible response).
You have to answer the question verbally?---I can't recall what I've been verballed about.
Yes. Verballed about one day prior there being a discussion that expressly dealt with the mission commander's orders prohibiting alcohol to be consumed by AFP officers in PNG police station; that's what it's about?---I can't recall that conversation. I think the only conversation I had with Andy about the next day's proceedings was the barbecue.
And the barbecue that you attended?---Yes.
……
Now, at that particular point in time, was there, to your knowledge, adverse media concerning PNG police consuming excessive amounts of alcohol whilst on duty?---I don't recall that media at that time, no.
The Tribunal does not consider that Mr Constantinou was dealt with in a heavy-handed way or made an example of, relying upon the testimony of Ms Raiser and Mr Giles. Each emphasised that deployment requires a higher standard of conduct, and the role of advisor is to set that example:
Ms Raiser:
T: You made an example of him instead, didn’t you?
R: No…I subjected him to the conditions that we were allowed to under the deployment directive, which was to rescind his deployment because he had exercised extremely poor judgement and broken commander’s orders.
…
M: On mission did you see [the need] to hold a higher standard because of the example you were trying to set to assist with lifting up the PNG force…?
R: Correct, yes, that’s the whole purpose of being a capacity building adviser, not wearing a gun and arresting people yourself, teaching them how to do it correctly, and the correct processes…to do that, you actually have to be… there can’t be a chink in your armour, you have to be pretty much perfect…you are held to much higher standards as an adviser…everybody watches you…with great interest and they see, and they are quick to pick up…Junior constables…[are] looking for signs on how to behave from their senior officers, and especially from the advisors. To see their OIC and adviser that they know best enabling that drinking – It’s a green light…do as we say not as we do kind of thing and that kills you as adviser. You’ve got to be consistent and you’ve got to have the high standards.
Mr Giles:
Would you agree part of role of AFP members was to model appropriate behavioural standards to RPNGC members – yes
Would you agree that when people go overseas there is temptation to let your hair down – no, they shouldn’t, in fact standards should be higher if possible, when representing country offshore, the pre-deployment briefing that standards should be exemplary, some people may let their hair down but acceptance is not that behaviour should be less
Temptation – some people might avail themselves of opportunities not ordinarily available
Two things against each other, standards of AFP members adhere too, higher standards, and natural inclination of people overseas to engage in things not ordinarily have opportunity to
Suggest to you that the way Mr C was dealt with by EMT in 2018 was heavy-handed, would you disagree – yeah, reject basis of question, maybe help if set scene, I came Jan 2016 which was transition mission from traditional to preparing for APEC in 2018, so my job was transition mission to developing police to provide that security, world starts to watch what is happening, the job starts to transition to develop capabilities to provide security and interface, so we move it into mission that has at least 20 other economies watching, we are directly attributable advising, mentoring, developing, so it raises the stakes, visibility, raises chance of reputational damage significantly
In 2018 there were media reports, raised in EMT response of Oct 2018 provided Jan 2018 article of PNG officers getting drunk at police station – look there are lots of examples, letter from person in Lei pleading police not to be drunk on duty and do work properly, PNG did not go to police for help, they were actually fearful especially when drunk and we witnessed that firsthand, that’s why we were there
So when became known to EMT that Mr C consumed a beer, you needed to clamp down hard – I don’t know that we will ever know if half beer or 6, I do know from analysis of his vehicle that he was there for substantial time, went to supermarket with Wane, suggestion was beer was bought there then because others says no beer in fridge in morning but there afternoon, 3:30pm he went into office and several hours later, 3-4 hours later he left to go nearby Hotel, said he was getting pizzas and arrived home after that, this activity took place day after he was told that he was not to do that and police commander given same advice
So they could have been talking eating pizza and not consuming multiple cans – in circumstances of matter we will never know how many beers Mr C consumed, but I know given accounts of witnesses and adviser driving past seeing drunken police officers on road in drunk state that whether Mr C drank half a beer, no beers or one beer he at least facilitated, arranged or participated in an activity he shouldn’t have, he should have instructed Wane differently, the issue isn’t one or half, common sense should have dictated not taking part, if couldn’t shut down himself he should have called TL or me
So needed to clamp down hard – I don’t think matter of clamping down hard, matter of reputational damaged to AFP, Commonwealth, if officers went on to do crimes, drunken RPNGC officer picked up machine gun, pointed at adviser and pull trigger, drunk issues not confined to PNG but PNG police have dreadful reputation for doing bad things when drunk and can’t be seen to facilitate that in anyway

The Tribunal considers that Mr Constantinou’s own actions on the evening of 23 March 2018 indicated he was fully aware that drinking on the premises was not the standard he was required to uphold as he took it upon himself to remove the PNG police staff from the station. The Tribunal relies upon his evidence:
M: What do you say you consumed on that day
C: I was in possession of one can of beer, I had a sip which rendered me consuming half that can to toast Wane’s new position
M: You had a sip to toast his new position and drank no more even though you were there some hours
C: It was warm because it was in fridge which was moved
M: ok so that’s why it was warm but came from fridge
C: yes
W: You left police station an hour and half with company of Mr Wane to Gateway Hotel?
C: That’s correct
W: did you buy them any alcohol there
C: Yes alcohol and food, pizzas
W: At your own expense?
C: yes
W: why was that necessary? Given your role in deployment of mentoring them and assisting them in developing their professional skills, why would you do it?
C: The circumstances dictated that I removed them from the station, they were drinking alcohol in celebration and because we had a busy week because we shared a lot with those members, we took them away from the station to the hotel to celebrate and ensure they had food as well
W: why was that your responsibility? Why would you do that Sir?
C: we had a mutually close relationship with my PNG police counterparts, I considered them responsible of their own interests
The Tribunal was not persuaded by the Applicant’s argument that the actions against Mr Constantinou were unreasonable and undertaken in an unreasonable manner because he had been dealt with in a harsher manner than Mr Murphy.
The Tribunal’s task is to determine whether the administrative action taken against Mr Constantinou was within ‘the ordinary standards of reasonable employers in all the circumstances of the case’. The Tribunal finds the administrative actions taken against Mr Constantinou were ordinary procedures adopted by his employer to deal with issues of work performance whilst affording Mr Constantinou natural justice. The actions were not heavy handed, biased and more onerous penalties were not metered out to Mr Constantinou over others as, the evidence indicated that other AFP officers were also sent home from mission for breach of command orders.
Whilst the Tribunal does not consider it a valid argument, it considered the assertion that the actions taken against Mr Constantinou were not reasonable because, in comparison, Mr Murphy had not been subjected to a disciplinary process and received no sanction. The Tribunal does not consider that Mr Murphy was dealt with in a lighter manner, relying on the evidence of both Ms Raiser and Mr Giles:
Ms Raiser:
T: What I want to suggest to you is there was a very different way that EMT has dealt with P Murphy…compared to the way that it’s dealt with Mr C in 2018. I want to suggest to you that Mr C was dealt with in a heavy handed and Mr Murphy was dealt with in a compassionate manner, you disagree with that don’t you?
R: I do…not sure that I used the word ‘compassionate’ in my dealings with Mr Murphy…Mr Murphy was hit by these allegations in a…passive aggressive way it seemed…where Mr C went to Safe Place and just asked for bullying training for the entire cohort. Then D Burrows comes around the side and makes a PRS complaint…it’s a really serious thing to put in a PRS complaint about a police officer. We all take it to…heart, so I think…Mr Murphy’s crimes…were not, did not have the international import and mission import that Mr C’s did. As I said to you, this was a police station built with significant Australian tax payer dollars opened by the AFP Commissioner and the RPNGC Commissioner scant weeks before this drinking episode, we are there to mentor and lift the RPNGC, not to come down to their level, which is what Mr C did in this occasion and subsequently certainly in the other occasions that we have found out about, he went down to their level instead of lifting them up. That was inexcusable when it wasn’t just an error of judgement…he brought a plain clothes shirt to work that day so that he could change out of his uniform to drink, and yet then he claims that he was so exhausted that he forgot there was a prohibition on drinking, and yet he’s so exhausted he stays out until 9 o’clock at night…I know you seem to think…I’ve been harsher on Mr C, but the severity of his misjudgement and the potential impact on our relationship with the RPNGC and how it would look if it got out in the local press, Australian advisor buys beer, gets drunk with, you know, because that’s the way it would have been put. There would have been no “you’ve got no evidence” – It could have been a really nasty event for the mission and could have endangered all of the work we are doing right in the APEC year.
…
M: Was there any action taken by the AFP to notify the head of police about Robert Wane’s issues on the night…
R: I am not aware, but I imagine it would have been, and I’m quite sure that it was probably passed on in the executive meetings between the mission commander, but you’d have to ask Mr Giles that, but I would say so, and Mr Wane…I had heard talk that there’d been issues around…that he was lucky to be promoted because of his behavioural issues, to be fair to Mr Wane, his wife died during that period, she had, I think, breast cancer but mind you that hadn’t stopped him from engaging in things he shouldn’t have…it was a stressful time all around for everybody.
M: Dealing with the chronology[y] of events, you’ve dealt with the Murphy issue, and then going through to the final issue with drinking and sending Mr C home, did you notice a change in [his] behaviour arising out of the Murphy incident?
R: No. He and Mr Twist were quite a tight unit. I think that they were happier when they were just doing their own thing. I certainly didn’t notice any…I was surprised when I read his various claims that…he was stressed and not sleeping…because I hadn’t noticed and he had never once raised any of that with me…I didn’t think that he was suddenly locking himself in his room and not going anywhere or doing anything, he seemed to have quite an active social life, so no, I hadn’t noticed any change in his behaviour.
M: So his perhaps lack of judgement with drinking on this night with Mr W wouldn’t have, in your view, arisen out of his stress having arisen from the Murphy incident?
R: …No…he in fact invited the other advisors to go and get cans out of the fridge and join them according to the NZ adviser, so…I think it was just something that they were doing because I think he had lost objectivity.
Mr Giles:
Before PRS involvement the issue with Murphy was dealt with and appropriately sanction – yes, I did and I spoke with Theo and he said he didn’t want to see anything happen to the guy but remember Theo been in mission in 3 weeks, he recommended whole mission receive anti-bullying training, to my mind Theo satisfied and I was and Murphy wasn’t in mission much longer anyway
Mr Giles, Mr C claims he was dealt in a more heavy handed manner than others, his transgression was less onerous than others and ultimately sanction was higher, comparison to how Murphy was treated, would you agree the course of action given to Theo was worse than that given to Spud – the treatment of both issues were in line with actions both members undertook, Theo received revocation of deployment, Murphy’s which had less ramification, fair and reasonable for both…. Murphy was treated more leniently because relationship to EMT reject that
The Tribunal sensed that a lot of Mr Constantinou’s grievances stemmed from the feeling that he was considered an outsider by those on mission while Mr Murphy was ‘one of the boys’ and Mr Constantinou had felt more at home with his RPNGC counterparts than his AFP colleagues. Due to this, Mr Constantinou felt that the decision to send him home was egregious when compared to the treatment of Mr Murphy. The Tribunal does not consider that the evidence supports this.
The evidence indicates that Mr Murphy had been subjected to a PRS review while Mr Constantinou had not. Mr Murphy’s AFP record will always indicate he had a professional standards infraction against him, while Mr Constantinou’s record will indicate he was sent home from mission. Mr Constantinou did not lose his job, he was not demoted, and he has successfully, by his own evidence, returned to a full-time fulfilling role with the AFP.
The Tribunal does not consider that Mr Constantinou’s decision to consume alcohol with Mr Wane on RPNGC premises, nor the decision made by EMT to send him home, were linked in any way to his interactions with Mr Murphy. The evidence before the Tribunal, particularly the email from Mr Bicker to Mr Constantinou of 20 February 2018, painted a picture that the decision to drink with Mr Wane was another way of cementing his closeness with his RPNGC counterparts. He had assumed that he would only be given a slap on the wrist for the infraction which would be viewed favourably by his RPNGC counterparts and he was shocked when this did not come to fruition.
Additionally, the realisation that he would lose considerable earnings from the loss of his tax-free posting allowance was a significant blow.
The Tribunal does not consider the other issues raised, including undermining his AFP colleagues, using the term ‘dim dim’, damaging a door to the PNG-APP office and leaving the station without advising where he was going, were actions which warranted him being sent home from mission. However, they did combine to demonstrate that Mr Constantinou had little regard for his superiors or mission command. The Tribunal finds the Summary of outcomes of EMT meeting 30/04/2018 to discuss deployment of Theo Constantinou AFP 11521, was a balanced assessment of the issues and a considered decision about the appropriate response to the breach.
Decision:
All EMT members present unanimously decided that, noting the aggravating factors around the behaviour, revoking Constantinou’s deployment was the only appropriate response for the following reasons:
·His NJR account does not ring true and contradicts the statements of his TL and a NZP Advisor.
·The NJR compounds concerns about his behaviour rather than alleviates them.
·A pattern of behaviour is identified in relation to undermining his colleagues and enabling poor behaviour in his counterparts.
·He has lost objectivity about the distinction between professional and personal relationships with counterparts.
·That his continued presence in PNG-APP risked him deliberately undermining or critically damaging important counterpart relationships.
The Tribunal concurs with the decision in Comcare v Martin:
The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee.
….
That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
The Tribunal finds that the actions of the EMT resulted in Mr Constantinou suffering from a psychological condition, but as the Tribunal considers these were reasonable administrative actions taken in a reasonable manner, they are excluded from liability for Comcare payments in accordance with section 5A(1) of the Act.
CONCLUSION
The Tribunal, having considered all the evidence before it, determines that Mr Constantinou is excluded from any form of compensation under the Act as it has determined the action of revoking his deployment was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of the Act.
DECISION
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision of 30 October 2018 under review to reject Mr Constantinou’s claim.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

.....................[sgd]....................................
Associate
Dated: 26 July 2022

Date of hearing: 5, 9 July 2021, 15 – 18 March 2022

Counsel for the Applicant: Mr Ray Ternes

Solicitors for the Respondent: Maurice Blackburn

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	5, 9 July 2021, 15 – 18 March 2022
Counsel for the Applicant:	Mr Ray Ternes
Solicitors for the Respondent:	Maurice Blackburn
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Australian Government Solicitor