CXFD and Comcare (Compensation)
[2021] AATA 2377
•19 July 2021
CXFD and Comcare (Compensation) [2021] AATA 2377 (19 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4741, 2020/1489
Re:CXFD
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:19 July 2021
Place:Sydney
2019/4741
The reviewable decision made on 2 August 2019 is set aside, and in substitution, it is decided that:
·pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the Respondent is liable in respect of aggravation of ‘Major Depressive Disorder with Anxious Distress’, suffered on 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Major Depressive Disorder with Anxious Distress’ or aggravation thereof suffered from 2014 and prior to 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Hypertension’ or exacerbation thereof suffered before or after 6 March 2019.
2020/1489
The reviewable decision made on 14 February 2020 to refuse to accept liability for ‘tinnitus’ pursuant to s 14 of the SRC Act is affirmed.
....................................................[sgd]………….....
Mrs J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – workers compensation – Major Depressive Disorder with Anxious Distress and Hypertension – administrative action -- where injury was contributed to, to a significant degree, by the employment – whether injury was suffered as a result of reasonable administrative action taken in a reasonable manner – decision under review set aside and substituted – Tinnitus – Applicant claimed to suffer tinnitus as a result of noise emitted by air conditioners – whether tinnitus was contributed to, to a significant degree, by the employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
CASES
Beasley and Comcare [2012] AATA 411
Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105
Georges and Telstra Corporation Ltd [2009] AATA 731.
Martinez and Comcare [2013] AATA 949
Radulovic and Comcare [2010] AATA 777
Wilson and Comcare [2010] AATA 396
SECONDARY MATERIALS
Public Services Regulations 1999 (Cth) reg 3.10
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
19 July 2021
Decisions under review
There are two matters before the Tribunal. In matter 2019/4741, Comcare, the Respondent, refused to accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of ‘Major Depressive Disorder with Anxious Distress’ and ‘Hypertension’ or aggravation thereof.
In matter 2020/1489, the Respondent refused to accept liability for ‘tinnitus’ under s 14 of the SRC Act because the Applicant’s [CXFD] employment did not significantly contribute to the occurrence of the Applicant’s condition.
I made a confidentiality order in respect of the identities of employees or former employees of Services Australia (the employer), previously known as the Department of Human Services, because of the nature of the allegations about workplace behaviour. That has resulted in some repetition in these reasons for decision.
MATTER 2019/4741
Background
On 13 March 2019, the Applicant lodged a claim for compensation in respect of “hypertension and anxiety” and “humiliation and impact on reputation” which resulted from being “suspended without notice, abruptly in front of colleagues” (on 6 March 2019). He first noticed symptoms on 7 March 2019 and attended for medical treatment on 9 March 2019.
In his statement dated 20 March 2019, the Applicant expanded his claim. The date of injury was from June 2014 onwards with an exacerbation on 6 March 2019. He claimed that two colleagues sought to undermine him in June and July 2014 which took several months to address, including allegations made by one colleague to the Fair Work Commission on two occasions. He claimed that Code of Conduct inquiries were undertaken in respect of those two colleagues. He accused a legal representative of his employer of lying to the Fair Work Commissioner. He claimed that the situation with one colleague was never resolved effectively and set out details of the ongoing conflict. The Applicant was also under extreme pressure to improve the performance of the team he was managing. He detailed the administrative measures taken in relation to his team. Consequently, he had lost faith in the leadership within his employer and harboured animosity to his employer for its handling of the matter relating to one of his colleagues. The Applicant continued to do his job. He did take time off for an operation for a physical condition. He recalled that time off work for surgery was preferable to being in the stressful environment at work.
The doctor placed him on medication for anxiety. He had never before been diagnosed with a mental health condition or taken medication for such a condition. He engaged in private sessions with a clinical/counselling psychologist, as needed, over subsequent years.
In relation to the suspension on 6 March 2019, the Applicant wrote that it was inappropriate, there was no Human Resources (HR) person present, and he was not provided with notice or an opportunity to have a support person present. He claimed to have been placed at significant risk, that he had not engaged in workplace behaviour to warrant such action and had not been advised of the allegations or who had lodged them. He listed nineteen symptoms and signs he had experienced since the suspension. He complained about the ongoing handling of the matter.
The Applicant also detailed several incidents at work that he claimed had affected his mental health because he was exposed to unnecessary and avoidable work health and safety risks because of poor local/area leadership since 2014.
The Employer Statement in Response to s17 Request dated 5 April 2019 included the following information. The Applicant first reported Anxiety to the employer in 2014 which was linked to a combination of workplace and personal issues. He provided a Certificate of Capacity dated 12 March 2019 which included a diagnosis of Anxiety with physiological response due to being “told of suspension (from the workplace) without notice or reasoning on 06/03/2019, causing exacerbation of anxiety and subsequent physiological symptoms”. The Applicant was certified fit for an unspecified type of employment.
An employment record shows that the Applicant reported Anxiety on 28 November 2014 in respect of the colleague who he claimed took the Fair Work Proceedings.
The Applicant’s manager (the Manager) provided a statement dated 15 April 2019. The Manager wrote that the Applicant was relocated to the Manager’s team in December 2014. At that time the claims about the conflict with the Applicant’s two colleagues were considered resolved and no further actions were required.
The Applicant’s general practitioner, Dr Jeremy Nguyen, provided medical certificates dated 12 March 2019 and 1 April 2019 which diagnosed Anxiety with physiological response and Anxiety with physiological response (including hypertension) respectively.
Dr Shannon Paisley, consultant psychiatrist, examined the Applicant on 17 April 2019 and prepared a report of the same date. His opinion was that the Applicant satisfied the criteria for a Major Depressive Disorder with Anxious Distress as set out in DSM-5.[1] The main trigger was the sudden and unexpected suspension from work following an accusation of harassment by him. The Applicant had a pre-existing condition dating back to 2014 for which he received psychotherapy and antidepressant medication for his anxiety symptoms. The Applicant attributed the onset of the symptoms to work related stress, the breakdown of his marriage and ensuing financial, legal and custody problems. His symptoms were not of sufficient severity to warrant time off work. The GP notes showed that the Applicant was still symptomatic in July 2018 when paroxetine was increased in response to ongoing issues with the end of his marriage.
[1] Diagnostic and Statistical Manual of Mental Disorders, 5th Edition by the American Psychiatric Association.
Dr Paisley’s opinion was that the Applicant had ongoing symptoms at the time of the suspension and therefore it was likely that his pre-existing symptoms were contributing to his current presentation. The Applicant’s current condition was an exacerbation or aggravation of his pre-existing psychological symptoms. Dr Paisley could not estimate with confidence to what degree work stress versus marital breakdown contributed to the Applicant’s symptoms in 2014. It was probable that both contributed in some way. In his opinion, the symptoms of his pre-existing condition had probably reached partial remission prior to his suspension in March 2019. There had been a substantial decompensation since the suspension in the absence of any acute non-work-related stressors.
Dr Paisley concluded:
[CXFD's] suspension in March 2019 has contributed to a significant degree to the onset of his psychological symptoms. Any pre-existing symptoms prior to his suspension were likely to be minor in comparison to his current symptoms which were precipitated by his suspension from work.
The psychological impact of his sudden, unexpected and what he perceived as undeserved suspension from work was the work-related event that contributed to his symptoms.
In relation to hypertension, Dr Paisley wrote:
[CXFD’s] medical history is not relevant to his current condition. I note that [CXFD] put forward hypertension and anxiety as a condition resulting from work-related stress. [CXFD’s] hypertension began in his 20s and he has received treatment since that time. Therefore, I do not consider that his work problems are the main contributing factor to his hypertension. However, anxiety can exacerbate hypertension and it is possible that his blood pressure has increased since his suspension. [CXFD’s] regular alcohol use may also increase his blood pressure.
The Respondent denied liability on 17 May 2019. The assessment made by the Senior Case Manager dated 13 May 2019 was adopted as the reasons for decision of the decision-maker. They included the following findings:
·The medical evidence supports that the employee suffers from an injury as defined in the SRC Act, namely an aggravation of ‘Major Depressive Disorder with Anxious Distress’.
·The Applicant’s reported psychological symptoms and exacerbation of hypertension dating back to July 2014 (should they constitute a psychological injury) had not been contributed to, to a significant degree, by his employment with the employer.
·On the balance of probabilities, the Applicant’s condition, aggravation of Major Depressive Disorder with Anxious Distress, was contributed to by his employment and that contribution was significant.
·The exclusionary provisions set out in s 5A of the SRC Act state that, if the injury was "suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment", the employee will not be entitled to compensation under the SRC Act [s 5A(1)].
·Reasonable administrative action is taken to include "a reasonable suspension action in respect of the employee's employment" [s 5A(2)(c)].
·It was reasonable for the employer to suspend the Applicant from duty pending the outcome of the Code of Conduct investigation.
·The discussion on 6 March 2019 regarding the employer’s decision to suspend the Applicant from duty, and the related administrative actions, contributed to his condition. These actions can reasonably be categorized as ‘reasonable administrative actions’ conducted in a reasonable manner and taken in respect of the Applicant’s employment.
·Any such workplace contribution to the Applicant’s condition was as a result of the work events discussed above. Consequently, the exclusionary provisions set out in s 5A of the SRC Act operate to exclude the Applicant’s psychological injury from compensation.
The Applicant requested reconsideration on 4 July 2019 and the Respondent affirmed the denial of liability on 2 August 2019. The Applicant applied for review in this Tribunal.
Dr Paisley examined the Applicant by videoconference on 15 April 2020 and provided a supplementary report of the same date at the Respondent’s request. The purpose of the examination was to determine the Applicant’s progress. Dr Paisley’s opinions relevant to the issues in dispute in these proceedings were unchanged.
At the hearing, the Respondent maintained the position summarised from the assessment at paragraph 17.
At [13] of his Statement of Issues, Facts and Contentions, the Applicant wrote:
… it is considered that both parties agree that [CXFD’s] employment contributed to his claimed condition and that this contribution was likely significant…’. It is contended that there is no ongoing need to review [CXFD’s] past medical evidence regarding his psychological injury as has been undertaken in the Respondents Statement of Issues, Facts and Contentions.
Thereafter the Applicant only addressed the psychological injury arising from the events of 6 March 2019. At the hearing, he said that he was limiting the matter to the incident of 6 March 2019 and not traversing the earlier stressors.
For certainty, I find that Dr Paisley’s evidence does not support a finding that the Applicant had suffered a psychological injury before 6 March 2019 that was contributed to, to a significant, degree by his employment. Dr Paisley could not estimate with confidence to what degree work stress versus marital breakdown contributed to the Applicant’s symptoms in 2014. While the Applicant was symptomatic in July 2018 when paroxetine was increased, that was in response to ongoing issues with the end of his marriage.
The Applicant did not focus on the condition hypertension or point to evidence to support a finding that the condition was work related or that there was an exacerbation of that condition related to the events of 6 March 2019. On 17 May 2019, the Respondent determined that the Applicant suffered from an aggravation of major depressive disorder with anxious distress and hypertension. The medical evidence before me, including that from Dr Paisley and Dr Nguyen referred to above, does not persuade me that the Applicant’s hypertension was contributed to, to a significant degree, by his employment before 6 March 2019 or that there was an exacerbation of the Applicant’s hypertension that was contributed to, to a significant extent, by the Applicant’s employment by the events of 6 March 2019.
The remaining issue in dispute is whether the Respondent’s liability for the psychological injury suffered by the Applicant as a result of the events on 6 March 2019 falls within the exclusionary provisions of s 5A of the SRC Act.
The events leading up to and on 6 March 2019
The following account of events is based on the written and oral evidence of the Applicant, contemporaneous documentary evidence and the statements and oral evidence of several witnesses involved in the events that led up to and culminated in the person I will refer to as the Messenger, visiting and meeting with the Applicant at his workplace at about 3 pm on 6 March 2019. I found all witnesses gave a straightforward account of the events as they recalled them.
On Monday, 4 March 2019 at 12:44 pm, the Manager sent an email to HRSupport and a copy to Person E. The subject was “Sexual harassment complaint”. The Applicant’s manager wrote:
I was hoping to get some guidance regarding complaints I have now received from several sources regarding an Assistant Director in my team.
The nature of the complaint is extremely concerning. I received a phone call from a staff member today who described the ongoing “sexualisation” of behaviour in the workplace. The incidents described involve the AD discussing sexual matters in detail with staff despite them asking him not to. This has included talking with staff about dating websites, showing photos of women on his phone, asking people to look at texts with explicit/graphic sexual context and discussing sexual acts. The team member advised that they were extremely distressed when he shared information about two daughters (aged 10 and 12 years) of women he had been dating which left them questioning whether the girls were safe.
The staff member advised that many of the women on site feel negatively affected by the AD’s behaviour and they are concerned for their safety. … The AD has also taken photos of them at work when they were unaware, apparently to give them tips on their posture. They are concerned that should they complain formally that the person may take some actions outside of the workplace to harm them.
I received a complaint last year from a staff member in another area describing an incident that occurred with the AD several years ago that left her very upset (again of a sexual nature). The staff member did not wish to take the matter further at the time and advised they preferred not work in the same area with the person again.
I am to meet with a Director this afternoon regarding a separate matter (again a complaint but I do not have details as yet), where a staff member has been off work sick following an incident with this AD and does not wish to return to work in the same location.
The Region Manager for the site has contacted me on the 1/3/19 and formally requested that I move the staff member from the site.
In addition to the information, the AD in my team is currently working privately in counselling, they are a psychologist and I am concerned regarding the seriousness of the matters raised and would appreciate your guidance on how I could address these. I am available on the numbers below.
The person I will refer to as the National Director is the most senior person in the HR area of the employer who was involved in the relevant events. The National Director wrote a statement dated 11 June 2020 and gave oral evidence. On 5 March 2019 the National Director received a copy of the Manager’s email that is set out above. The matter had been escalated to the National Director because of the serious nature of the allegations against the Applicant, especially the reports of staff not feeling safe. The National Director was required to determine the appropriate course of action. The National Director considered that the allegations warranted consideration of a Code of Conduct investigation and forwarded the email to the relevant person (the Director), to discuss referral for investigation as a potential breach of the Code of Conduct due to the seriousness of the allegations.
On the morning of 6 March 2019, the National Director had a conversation with the Director after the Director had reviewed the allegations. The Director was prepared to refer the matter for a Code of Conduct investigation. As part of that conversation, they discussed who would be the most appropriate person to communicate and speak with the Applicant. In normal circumstances it would be the manager of the site, but because the Applicant was an Executive Level 1 Officer, they considered the most appropriate senior person was the Messenger, because the location of the Applicant’s office fell within the Messenger’s geographical area of responsibility. For that reason, it would not be unusual for the Messenger to attend the location where the Applicant worked. The Messenger was a very experienced manager who the National Director and the Director considered would be the best person to have the meeting with the Applicant and be as discrete as possible. The Messenger confirmed availability to communicate with the Applicant. The National Director advised the Director that the Messenger was available.
The National Director stated that the meeting was arranged promptly due to concerns about the seriousness of the allegations, including that staff had reported feeling unsafe while the Applicant was in the workplace. The National Director recalled that the Applicant worked part-time and as it was the last day of his working week, the meeting was arranged for that day.
The National Director wrote:
Notification is not provided to the individual beforehand relating to a Code of Conduct investigation and any related potential suspension from duty. This is because if it is serious enough to consider suspension from duty, this can be a confronting situation for the individual without the proper context. Also, staff need to be provided with letters which outline the processes and this should be hand delivered wherever possible and accompanied by a conversation. Further, in some instances, the employee may then choose to access documents or remove evidence from their computer that may hinder a future investigation or react negatively to other staff in office.
The National Director referred to the Support Person Guide and explained that employees may not be offered a support person before discussions of “this nature” because they do not know what is going to be discussed and if an individual attended as a support person, there would potentially be a breach of privacy.
The National Director was not aware or informed of health and safety pre-existing issues with the Applicant.
The National Director confirmed that in making the statement, the policies that were considered in response to dealing with the complaint and to determine appropriate actions were:
·Conduct and Behaviour Policy which outlines that Managers must deal with complaints seriously, sensitively and in a timely manner.
·Sexual Harassment Policy which provides that where complaints are of a serious nature, they should be referred for Consideration of Code investigations.
Having determined that the complaints were of a serious nature, the National Director referred the matter for consideration of investigation of a potential breach of Code of Conduct through the appropriate delegate, the Director. That process is covered under the Code of Conduct Procedures.
The National Director sent Person S and Person B an email at 1:34 pm on 6 March 2019 with the subject Sexual Harassment complaint
Hi
This is the matter I was alluding to. I have spoken with Person E and Person C this morning and feel, on the basis of that conversation and the content below, [CXFD] should be suspended from the workplace immediately – with pay – as Person C has indicated that, in conversations with the region manager and individuals, staff feel unsafe with him onsite.
I have also spoken with Person K who advised # has spoken to Person T in the past regarding [CXFD’s] behaviour.
(P)B and I believe we have enough information to suspend with pay and remove him immediately and then undertake a preliminary investigation into the allegations. Person C will be providing more information by COB today regarding the sexualisation behaviour mentioned below but [CXFD] only works part time and today is his last working day.
Person C is the Manager. I infer that Person B is the Director.
During oral evidence, the National Manager said that the Director had a conversation with the Messenger about the role the Messenger was to undertake.
The National Director had a conversation with the Messenger following the meeting with the Applicant and was not informed of any adverse issues or concerns that occurred at the meeting.
The critical decision made on 6 March 2019 was made by the person I will refer to as the Delegate. The Delegate decided to place the Applicant on Miscellaneous Pay With Leave while a decision was made whether to temporarily reassign different duties to him or suspend him from duty pending the outcome of the Code of Conduct investigation. The Delegate provided a statement dated 5 June 2020 and gave oral evidence. Following is a summary of that evidence.
The Delegate received a verbal communication from the Director about the allegations made against the Applicant and was directed to the particulars saved on the shared electronic filing system. The Delegate annexed to the statement dated 5 June 2020 a copy of the email from the Manager sent at 12:44 pm on 4 March 2019 set out at paragraph 27 above.
The Delegate decided that immediate action was necessary because of the seriousness of the allegations and the potential risk to staff if the Applicant remained in the workplace while the matters were investigated. The Delegate drafted an undated letter which the Messenger gave to the Applicant that afternoon.
The Delegate stated that the Applicant’s well-being was considered in the preparation of the letter. The potential impact on him was balanced against the obligations the Delegate had to the safety of staff potentially impacted by his presence in the workplace. The Delegate concluded that it was in the best interests of the employer to issue a Notice of Intention to suspend the Applicant. The impact on the Applicant was balanced by having him placed on leave with pay and giving him an opportunity to respond to the proposed suspension before action was taken.
The Delegate pointed out that the employer was not obliged to provide the Applicant with an opportunity to respond before suspension occurred, referring to Regulation 3.10(7) of the Public Services Regulations 1999 (Cth) which allows a decision maker to dispense with that process where they are satisfied on reasonable grounds that it is appropriate.
Following is a copy of the undated letter drafted by the Delegate and delivered to the Applicant by the Messenger on 6 March 2019:
Dear [CXFD]
SUSPECTED BREACH OF THE CODE OF CONDUCT
I am writing to advise you that as a duly authorised delegate, I am currently making an assessment to determine whether you should be temporarily reassigned different duties, or suspended from duty pending the outcome of an investigation into your suspected breach of the Australian Public Service (APS) Code of Conduct.
Temporary reassignment of duties and suspension are not forms of punishment. They are administrative measures designed to protect the interests of Department of Human Services (the department) and the APS.
In order to suspend you from duty, I am required to form the opinion that:
• You have, or may have, breached the Code of Conduct; and
• It is in the public, or the department's interest.
The information provided to me indicates that a complaint has been received about your behaviour in the workplace. The behaviour detailed in the allegations (which will be provided to you in due course for comment), suggests that you may have behaved in a manner that could potentially represent harassment.
I understand that a duly authorised person will be assigned to undertake a formal investigation regarding your suspected breach of the APS Code of Conduct.
Not a decision in relation to suspected breaches
Please note that it is not my task to establish whether or not you breached the Code of Conduct, but rather to make decisions as to whether you should be temporarily reassigned different duties or suspended from duty, and whether any suspension from duty should be with or without pay. I understand that an investigation will be undertaken by an authorised party in the near future. You will be contacted in due course by an investigator and provided details of the allegations made, as well as invited to respond to the allegations.
Why this action is being considered
While this investigation is being undertaken, I do not believe it is in the interests of the department or yourself that you remain in the workplace. The nature of the allegations made, if proven, may constitute a serious breach of the Code of Conduct. Further, allegations of this type, if proven, have the potential to damage the department's reputation. I am also of the view that allegations of this type suggest a potential risk to the health and wellbeing of others, noting that the department is committed to providing all staff with a safe and respectful workplace, free from harassment.
Having considered the circumstances, I am considering whether you should be initially suspended from duty with pay.
Opportunity to comment
Before making a final decision as to whether it would be appropriate to initially suspend you from duty with pay, pending the outcome of the Code of Conduct investigation, I would like to provide you with an opportunity to comment.
You have until close of business on Monday 11 March 2019, to provide me with a statement in writing regarding my proposal to suspend you from duty with pay whilst the allegations are investigated. You do not have to make a statement if you do not wish to do so.
If you would like to provide me with a written statement, or provide supporting documents, you may forward them to me at [email address].
I intend to provide a copy of any material you provide to me to the investigator. If you do not want me to do that, you should tell me and explain why you do not want that to happen.
You are not to report for duty for the time being
Pending my decision regarding your suspension, you will be deemed to be on duty, but not required to report for duty until I make a final decision (that is, you will be on miscellaneous leave with pay).
Because you are not required to report for duty, I am directing you to remain out of the workplace until instructed otherwise.
I am also formally directing that you do not make, or attempt to make any contact, directly or indirectly, with any departmental employee based, or who works from time to time, at the department's [Geographical Area] Customer Service Centre.
Any failure to comply with such directions may potentially result in a referral for consideration of a suspected breach of the APS Code of Conduct, in particular section 13(5) which states; 'An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction'.
If you need to enter departmental premises for any reason, other than to transact business as a departmental customer, you must contact me, on [telephone number] to seek permission to do so.
You will be notified of my final decision in regards to suspension, via email, to your personal email address as recorded in ESSentials: [email address]. Please let know if you would prefer that I send my correspondence to a different email or postal address.
Access to employee assistance
I appreciate that the information contained in this letter and the enclosed material may be difficult for you to comfortably absorb. If you would like to talk to someone about your feelings, I encourage you to make use of the department's Employee Assistance Program…
The Applicant responded to the letter on 10 March 2019. On 11 March 2019 the Delegate decided to suspend the Applicant with pay until review of that decision or pending the outcome of the Code of Conduct Investigation.
The Messenger wrote a witness statement dated 29 March 2019 and gave oral evidence. The Messenger arrived at the location of the Applicant’s office around 2:45 pm on 6 March at the request of the National Director. The Service Centre Manager (SCM) handed him documents that had been received from the Director and printed out. The Messenger perused the documents. The SCM provided the Messenger with a private room and directed the Messenger to where the Applicant was working.
The Messenger approached the Applicant and said that the Messenger needed to speak to him regarding an HR matter, asked him to log off and shutdown his computer and join the Messenger in the Carers’ Room. The Messenger waited for the Applicant do so and walked with him to that room.
The Messenger informed him that the Messenger had been asked to attend the site as the senior executive with pastoral care of the geographic area which included the Applicant’s office location. The Messenger informed the Applicant that the delegate had decided to suspend him from the workplace immediately while an investigation into a possible breach of the Code of Conduct was undertaken. Other staff were in the general work area.
The Messenger observed very little if any immediate reaction from the Applicant. The Applicant then declared he had absolutely no clue as to what this might refer to, as nothing had been raised with him prior to the Messenger’s arrival, and his behaviour was always correct. He had several, repeated, questions about the details of his alleged breaches. To all of the Applicant’s questions the Messenger was only able answer that:
(a)More detail would be provided to him by the Delegate throughout the process.
(b)The process was described to him in the material provided.
(c)Suspension did not indicate the he was 'guilty' but that the Delegate had enough information to form the opinion that in the circumstances his removal from the workplace was appropriate, however, the Messenger did not have the information available to the delegate. The Messenger suggested that as the documentation suggested the breach was related to harassment there would be consideration of the potential of any alleged behaviour to impact other staff including their safety and wellbeing.
(d)The Messenger expected that the process would afford him natural justice by providing more detail and giving him appropriate time to respond however the Messenger would not be involved in that process so could not guarantee any timeframe for resolution.
(e)The Applicant advised that he had been part of a Code of Conduct process previously which was stressful. The Messenger replied that the Messenger expected it would be and ensured the Applicant knew how to contact the Employee Assistance Program provider which he acknowledged he did.
The Applicant had questions about the two processes, suspension versus Code of Conduct. After reading through the advice with him the Messenger confirmed that the Applicant could provide feedback in relation to the decision to suspend him if he had concerns, to which he asked if he was going to be paid. The Messenger advised the Applicant that he was suspended with pay initially.
The Messenger informed the Applicant that the Messenger needed to take possession of his tablet, work phone, ID keys etc., and that he was not to approach other staff or the workplace whilst the suspension was in place which the Applicant acknowledged. The Applicant asked if he could collect the required objects in a way that did not embarrass him. The Messenger agreed and was happy to wait in the Carers’ Room while he collected his effects and the departmental assets. The following then occurred.
As the Applicant no longer had his access card, the Messenger escorted the Applicant down the back stairs of the office into the car park and left the Applicant at approximately 3:30 pm. The Applicant thanked the Messenger for the way the Messenger had handled the interaction.
The Messenger then notified the Manager of the Applicant’s departure and advised the National Director that the Messenger had completed the delivery of the advice.
During oral evidence, the Messenger said that he spoke to the Applicant for about 40 minutes.
In addition to the Delegate’s letter set out above, the Messenger gave to the Applicant a letter dated 6 March 2019 from the Director in the following terms:
Dear [CXFD],
CODE OF CONDUCT INVESTIGATION
All Australian Public Service (APS) employees are required to uphold the APS Values and comply with the APS Code of Conduct, which are set out in sections 10 and 13 of the Public Service Act 1999 (PS Act).
I have received information that suggests that you may have breached the APS Code of Conduct. In particular, it is alleged that you may have engaged in behaviour which could constitute harassment towards your colleagues. As a result, I have determined that formal action to consider these allegations will be undertaken.
I have referred the matter to [the Delegate], and tasked him with reviewing the evidence in order to determine whether it is in the interests of the department to suspend you from duty or reassign your duties whilst the investigation is undertaken. [The Director] will contact you separately.
The matter will also be referred to an external investigator who will be in contact with you in due course. They will provide you with details of the allegations, an outline of how the investigation process will proceed and an opportunity to respond to the allegations and provide any additional information relevant to the investigation.
This matter will be investigated in accordance with the Department of Human Services' Procedures for determining breaches of the APS Code of Conduct and imposition of sanctions as required by subsection 15(3) of the PS Act. For your information, a copy of these procedures is attached to this letter.
If you are found to have breached the APS Code of Conduct, a sanction may be imposed, ranging in severity from a reprimand to termination of employment.
Formal direction
In order to ensure the investigation is not prejudiced, I am formally directing you not to make, or attempt to make, any contact, directly or indirectly, with any departmental employees who are based at the [Geographical Area] Service Centre.
A failure to comply with a direction may be a breach of the APS Code of Conduct. In particular, subsection 13(5) of the PS Act states that "An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give that direction".
This direction will continue to apply until further notice, but will be reviewed as appropriate. If you would like me to reconsider the scope of the direction, please provide reasons.
You are entitled to request, in writing, a review of my decision to issue you with a formal direction. An application must be made to your People Team…within 120 days of the date of this letter and state briefly why you are seeking a review and any specific outcome that you hope to achieve by having the action reviewed. Further information is available on the People Reference Centre on the Intranet.
Accessing support
I recognise that this letter, and the processes that will follow, may be both confronting and alarming for you. I would encourage you to seek support and confidential personal counselling through your EAP provider service…, from your local Manager, or through discussion with the local People Team who will be able to provide the appropriate contact points for you.
Following is the Applicant’s version of the meeting with the Messenger to the extent that it differs significantly from that version or casts light on his reaction to it. His first account appears in his statement dated 13 March 2019, which given its proximity in time to the meeting, I consider to be the most reliable version.
The Messenger approached the Applicant unexpectedly. When the Applicant entered the Carers’ Room, the Messenger said to take a seat, he had bad news and the Applicant was suspended. The Messenger was not clear on the reasons for suspension. The paperwork on the table simply stated ‘harassment’. The Applicant believed that the allegations were likely to be retaliatory action for his attempt to directly address inappropriate behaviour in the workplace. He knew that he had not engaged in any inappropriate behaviour and certainly nothing that would warrant instant suspension. He had not been advised of details of the matter and had had no opportunity to provide information other than to justify why he should be suspended with pay, as opposed without pay. The suspension was unexpected and shocking. The Applicant described the incident as “Unfair Suspension”.
In his statement dated 20 March 2019, the Applicant wrote that he looked up to see the Messenger “standing over him”, and “abruptly” telling him to shut down his computer and meet him in the Carers’ Room. The Messenger said that he had been told by the National Director to suspend the Applicant. The Applicant asked if there was any paperwork and then noticed paperwork on the desk which said that the reason for suspension was harassment.
During his oral evidence, the Applicant said the following. He emphasised that he had to ask to see the documents during the meeting and the Messenger could not answer questions and had to refer to the documents. The Messenger told him he was suspended. He was very confused. He thought he had been suspended. He said that the meeting lasted for about 15 minutes. He repeated that he would have wanted a support person present despite the sensitive nature of the allegations because he had nothing to hide and that person could have been a witness to the poor handling of the matter. He had to drive home alone. When it was put to him that the person would have been from his work, he said that he should have been given notice of the meeting. No consideration was given to his welfare.
The Applicant said that until he received the Delegate’s letter dated 11 March 2019 advising him that he was suspended from duty with pay from that day, he believed that he had been suspended on 6 March 2019.
The Applicant’s complaints about the administrative action and manner in which was undertaken overlapped and have been variously expressed. In summary they were that:
· The process was not reasonable, confidential, professional, appropriate or conducted in a safe manner;
· He was denied procedural fairness/natural justice;
· He was not provided with notice or an opportunity to have a support person present;
· He was not given details of the allegations;
· There was no preliminary investigation;
· He was not afforded the presumption of innocence;
· There was no HR person present;
· He was placed at significant risk;
· The allegations were from one person whose inappropriate behaviour he had tried to address;
· He was embarrassed and humiliated in front other employees.
Consideration
The administrative action taken on 6 March 2019 comprised the following:
·Without prior notice, the Applicant was approached at his desk by the Messenger, a senior officer of his employer who was based in his geographic area but not at his work location. The Messenger asked the Applicant to log-off and join the Messenger in the Carers’ Room. The Messenger then told the Applicant that he had been suspended from his duties, and the two letters from the Director and the Delegate, set out above, came to his attention.
·The effect of the two letters was that he would be the subject of a Code of Conduct investigation and was being considered for temporary reassignment to different duties or suspension from his duties with pay while the investigation was undertaken, he was being given an opportunity provide a response in relation to possible suspension until close of business on 11 March 2019, would be on miscellaneous leave with pay until that decision was made, and was directed to remain out of the workplace until instructed otherwise and not to make any contact with any employee from his place of work.
·He was escorted from the office by the Messenger, after returning all assets of the employer, including his building pass.
The following is taken from the Respondent’s Statement of Facts, Issues and Contentions. It is a useful summary of the authorities. Whether administrative action is reasonable and/or taken in a reasonable manner requires an objective consideration of the circumstances.[2] The Tribunal needs to be satisfied that there was nothing untoward about the action, that it was not irrational, absurd or ridiculous.[3] The test is not whether things could have been done more reasonably or in a different, more acceptable, way.[4] The action not need to be conducted perfectly, but it needs to be tolerable and fair.[5] Any 'unreasonableness' must arise from the actual administrative action in question, rather than the employee's perception of it.[6]
[2] Georges and Telstra Corporation Ltd [2009] AATA 731.
[3] Radulovic and Comcare [2010] AATA 777.
[4] Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105.
[5] Beasley and Comcare [2012] AATA 411, citing Wilson and Comcare [2010] AATA 396.
[6] Martinez and Comcare [2013] AATA 949.
I am satisfied that the Respondent took reasonable administrative action pursuant to s 5A(1) of the SRC Act because the Manager had provided information that there were very serious allegations of sexual harassment made against the Applicant by a number of employees over a period of time resulting in concern for the safety of staff members. The Manager had a reasonable basis for providing that information. It was necessary to remove the Applicant from the workplace immediately, remove his access to systems and prevent him from contacting employees, in order to protect other employees and the integrity of the evidence that was relevant to the Code of Conduct investigation.
What is striking in this case is the Respondent’s continued reference to the administrative action on 6 March 2019 being suspension, up to and during the hearing. It was not. The administrative action on the day was to remove the Applicant from the workplace and place him on miscellaneous leave with pay, pending a decision whether to suspend him or temporarily reassign him different duties.
It is clear from the email sent at 1:34 pm on 6 March 2019 that the National Director felt that the Applicant should be suspended from the workplace immediately. It is not clear at what time the Delegate made the decision to put the Applicant on miscellaneous leave with pay. It is not clear why the Messenger told the Applicant that he had been suspended. The Messenger had had conversations with the National Manager, and with the Director, according to the National Director. The Messenger did not mention the latter conversation. The Messenger had perused the documents when handed them at the Applicant’s workplace. In any event, the Messenger conveyed an incorrect message. Understandably, the Applicant was confused. He was told by a senior person in the organisation, the Messenger, that he was being suspended immediately, while the documents stated that the Delegate had made a different decision.
The administrative action was very serious for the Applicant. It was carried out without giving him prior notice. It was incumbent upon the employer to tell the Applicant the correct decision that had been made. It did not. It was not an insignificant error. Communicating the correct decision to the Applicant was fundamental to the carrying out of the administrative action on 6 March 2019.
While the administrative action was reasonable, it was not carried out in a reasonable manner pursuant to s 5A(1) of the SRC Act.
Decision
The reviewable decision made on 2 August 2019 is set aside, and in substitution, it is decided that:
·pursuant to s 14 of the SRC Act, the Respondent is liable in respect of aggravation of ‘Major Depressive Disorder with Anxious Distress’, suffered on 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Major Depressive Disorder with Anxious Distress’ or aggravation thereof suffered from 2014 and prior to 6 March 2019;
·the Respondent is not liable pursuant to s 14 of the SRC Act in respect of ‘Hypertension’ or exacerbation thereof suffered before or after 6 March 2019.
MATTER 2020/1489
Following is a chronological summary of the factual background to the Applicant’s claim for tinnitus.
The Applicant claimed that he consulted his General Practitioner (GP) in relation to tinnitus on 9 April 2018 and 4 May 2018. Following a referral from his GP, the Applicant consulted Dr Nicholas Jufas, Ear, Nose and Throat Surgeon, in respect of tinnitus on 12 June 2018 and 31 July 2018. In Dr Jufas’ first report dated 12 June 2018, he stated that the Applicant presented with an eight-week history of left-side pulsatile tinnitus. The Applicant hears a high-pitched whistling sound on the left side that was present all the time unless he has significant background noise to drown it out. The Applicant had measured it and it was in time with his pulse. Dr Jufas carried out and arranged various investigations. In his 31 July 2018 report, Dr Jufas wrote that the Applicant had not developed any new symptoms and was doing well keeping his pulsatile tinnitus under better control. He expressed the opinion that if the Applicant did not get any new symptoms, he should not need any follow up.
At the hearing, the Applicant said that he had misunderstood a question from Dr Jufas and that his tinnitus was constant, not pulsatile.
In a WorkCover NSW certificate of capacity dated 29 October 2019, Dr Jeremy Nguyen GP stated that the date of injury was approximately April 2018 and that the Applicant was first seen at the practice for tinnitus on 17 July 2018.
On 1 November 2019, the Applicant submitted a Worker’s Compensation Claim for tinnitus in his left ear which he attributed to the two large portable, extremely noisy industrial air-conditioners that had been installed to deal with extreme heat during a hot summer. He claimed that one was placed in close proximity to his desk and that people could not be heard on the phones over the noise. They operated for several weeks to a few months. He had taken a video of the one near his desk operating, including sound, which was in evidence. He claimed to have first noticed his symptoms/injury on 13 February 2018 at 10:46 am.
On the same day in a statement, the Applicant wrote:
It was only recently I was required to complete a timeline and linked the timing of the onset of the Tinnitus with the exposure to the industrial air-conditioners.
The employer statement and chronology show that the air conditioners were installed on 13 February 2018 in response to a request from the Applicant on 8 February 2018. He had lodged a Report of Injury on 25 January 2018 for wellbeing concerns relating to a long-standing problem with air-conditioning in the office.
The Respondent sought a report from Professor Paul Fagan, consultant otolaryngologist who assessed the Applicant on 25 November 2019. In his report dated 17 December 2019, Professor Fagan expressed the opinion that there was a cause and effect relationship between the symptoms the Applicant described, and the noise caused by the air-conditioner because tinnitus is known to follow exposure to industrial noise. The noise level was of the order of 90 dB as conversations were not possible at a distance of one metre. His diagnosis was noise induced tinnitus. He reported that the Applicant’s employment contributed to a significant degree to the causation of the condition.
On 19 December 2019 the Respondent denied liability for tinnitus under s 14 of the SRC Act. The Applicant lodged a reconsideration application. On 14 February 2020, the reviewable decision affirmed the decision to deny liability. On 11 March 2020, the Applicant lodged an application for review of this decision with this Tribunal.
The Respondent asked Professor Fagan to review the matter. It provided the clinical notes and medical reports of Dr Jufas to Professor Fagan, who prepared a supplementary report dated 25 August 2020. He did not reassess the Applicant. He noted that the Applicant had consulted Dr Jufas with pulsatile tinnitus, ‘a totally different entity to the “steady state” tinnitus’ which brought the Applicant to himself. Professor Fagan revised his opinion in light of the new information. He set out his reasons and concluded that the Applicant did not have noise damage to his left ear and did not believe that there was any connection between the noise emitted by the air conditioner and the Applicant’s symptoms. Professor Fagan could see no reason why a patient could not suffer from both pulsatile and noise induced tinnitus, but the Applicant did not have pulsatile tinnitus when he saw him and in his opinion the Applicant’s current tinnitus is not noise induced.
During his oral evidence, Professor Fagan frankly admitted that he changed his opinion because he had got it wrong in his first report.
The Applicant sought to rely on Professor Fagan’s first report. He said at the hearing that he had always had the “steady state” tinnitus and that he had misunderstood a question that Dr Jufas had asked him. He criticised Professor Fagan’s reasons for changing his opinion in various respects, including that he relied on a paper that addressed domestic air-conditioners rather than commercial/industrial air-conditioners.
Dr Jufas carried out a very thorough investigation of the Applicant’s hearing in June 2018. The Applicant did not mention to Dr Jufas any concern about noise from an air-conditioner earlier in that year. It was uncontested that pulsatile tinnitus is not noise induced.
Neither Dr Jufas nor Professor Fagan supports the conclusion that the Applicant’s tinnitus was noise induced by the air conditioner that he sat near in February to about April 2018. The Applicant’s tinnitus was not contributed to, to any significant extent, by his employment.
Decision
The reviewable decision made on 14 February 2020 to refuse to accept liability for ‘tinnitus’ pursuant to s 14 of the SRC Act is affirmed.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
......................................[sgd]..................................
Associate
Dated: 19 July 2021
Date(s) of hearing: 28, 29 & 30 June 2021 Counsel for the Respondent: Mr Matt Gollan Solicitors for the Respondent: Ms Jenny Proimos, Comcare
Mr Lachlan Martin, Comcare
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