David Bose and Swire Pacific Ship Management (Australia) Pty Ltd

[2013] AATA 307

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4416

Re

David Bose

APPLICANT

And

Swire Pacific Ship Management (Australia) Pty Ltd

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 15 May 2013

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided that, pursuant to s 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”), compensation is payable to the applicant for Major Depressive Disorder suffered by him on 5 June 2012.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to 92(1) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
....................[sgd]....................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant employed by respondent as Chief Engineer – applicant removed from vessel and replaced as Chief Engineer – applicant suffered major depressive disorder – applicant’s major depressive disorder contributed to in a material degree by employment – applicant’s major depressive disorder a “disease” – applicant’s major depressive disorder suffered as a result of removal from vessel – decision to remove applicant from vessel “disciplinary action” – decision to remove applicant from vessel not “reasonable” – applicant’s major depressive disorder not suffered as a result of “reasonable disciplinary action” – applicant’s major depressive disorder an “injury” – compensation payable to applicant for major depressive disorder – decision under review set aside
LEGISLATION
Seafarers Rehabilitation, and Compensation Act 1992 (Cth), s 3, s 6, s 8, s 10(4) and s 26(1)
CASES
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75Click here to enter text.
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member
15 May 2013
INTRODUCTION

David Bose (“the applicant”), who is 58 years of age, has been employed by Swire Pacific Ship Management (Australia) Pty Ltd (“the respondent”) since 1993.
On 27 June 2012 the applicant made a claim for workers’ compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act) in relation to a condition described by him as “severe depressive disorders”. In the compensation claim form the applicant indicated that he first noticed that condition at 4.00 pm on 30 May 2012 when on board the vessell Pacific Valkyrie and he described the circumstances in which he sustained that condition as follows:
“ As a Chief Engineer I am the on-site Manager of the vessel’s Technical Department and am required to make engineering decisions which affect the operation of the vessel and I feel the final decision of how this is achieved lies with me as I will suffer the effects of my decision. I also have 2 engineers as well as crew working under my direct supervision. I have served as a Chief Engineer for 16 years in this company.
During my last period of duty on the mv Pacific Valkyrie I was required to receive a piece of main engine equipment on-board and make it ready for use. This was supposed to have been done ashore 2 months previously. I had a view about logistics and engineering principles with regard to this job based on my 34 years of sea experience; however the shore-based Manager did not share my views. A debate occurred in which I was not prepared to accept the suggested engineering practice put forward by the shore based Manager. This prompted further debate and even though I did state in writing that I would do what was required, I was accused of not complying with instructions. I was told that I was to be removed as Chief Engineer as soon as possible. I was also accused of not complying with instructions on previous occasions without being told what these occasions were. I was then kept on board for a further 16 days and I managed to carry out my duties as Chief Engineer, including doing over and above my normal duties, despite the fact that during this time, I was becoming more and more stressed, anxious and worried about the turn of events and could not even sleep. I was then removed from the vessel in humiliation which caused me further anxiety and depression.
…
On reaching home I found that due to the above events, I could not even perform my normal day to day living activities at home and therefore consulted my doctor who has subsequently diagnosed me as suffering from severe depression and unfit for duty.”
On 11 July 2012 a determination was made, on behalf of the respondent, disallowing the applicant’s claim for compensation.
Following a request by the applicant for a reconsideration of the abovementioned determination, on 21 September 2012 a “reviewable decision” was made on behalf of the respondent under s78 of the SRC Act affirming that determination.
On 3 October 2012 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T11, pp 1–38) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·exhibits A1–A14 tendered by the applicant;
·exhibits R1–R8 tendered by the respondent; and
·the oral evidence of the applicant and of the following witnesses:
-Dr M Mustapha and Dr A Banerjee (who were called by the applicant);
-Dr V Cheng, Mr E Duck and Mr M Hearnden (who were called by the respondent).
The Applicant’s Evidence
The applicant said that he had been employed by the respondent for the last 20 years – for the first 3 years as a First Engineer and for the last 17 years as a Chief Engineer. He tendered his witness statement, dated 9 January 2013, and he confirmed that its contents are true and correct. That statement is as follows:
“1. I was born in India. I attended university there and obtained a Marine Engineering Degree which I completed in 1977. From 1978 to 1991 I worked as a marine engineer for the Shipping Corporation of India. I migrated to Australia in 1991. From 1991 to 1993 I worked for Total Marine Services as a Marine Engineer on board offshore vessels including three Swires vessels. In 1993 I commenced employment with Swire Pacific Offshore. I was employed on a permanent basis. I have worked on a number of vessels for the company which are engaged in the offshore oil and gas industry.
2.In November 2010 I joined the Pacific Valkyrie, an anchor handling offshore supply vessel. This vessel has a crew of 12 consisting of 3 deck officers, 3 engineers, 5 integrated ratings and 1 cook. I was employed as Chief Engineer on the vessel. I hold an AUS Engineer Class 1 (Motor) Certificate of Competency and as such I am an AMSA Certified Engineer/Manager. I am the second most senior engineer in the company’s fleet. I am junior to Peter Isted but only by a brief period.
3.In June 2007 I consulted Dr Mustapha, my general practitioner, in relation to some stress I was undergoing at that stage. There were a number of issues weighing on me at that stage including:
(a)I was depressed about my relationship with my ex-wife. We had separated briefly in 2001 and were divorced and then subsequently we got back together. Our relationship over the years has been difficult and we have experienced a number of ups and downs.
(b) I was frustrated that the company had not appointed me to serve on other vessels in the fleet.
I did offer to resign at this stage but decided to take a leave of absence of about 5 to 6 months. I used my sick leave and accrued leave and some of my long service leave. The company paid for me to see a counsellor in Osborne Park who I saw on 5 occasions at its expense. I also saw this person on 3 occasions at my own expense. Dr Mustapha placed me on Efexor medication during this period.
By the about [sic] the end of 2007 I returned to work with the company. I ceased taking the Efexor medication. I felt much better psychologically.
4.In December 2008 I suffered a fall at my home and punctured a lung. I ended up being hospitalised at Joondalup Hospital from around 6 December 2008. I recovered completely from the punctured lung but did see Dr Mustapha in early January 2009 in connection with some residual chest symptoms. I was also feeling a little stressed at that stage and I note that he described the condition as post traumatic stress disorder. I thought that was a very long name for what was a fairly minor problem. He gave me a referral to see Ashley Frew, a clinical psychologist; however I recovered from the minor stress problems I was then experiencing. I returned to work in about February 2009.
5.Since about November 2010 I had been experiencing some minor episodes of stress which were basically related to my work. I was working very lengthy hours and was bringing my work home with me. That caused some problems at home with my wife. I saw Dr Mustapha in February 2012 and mentioned this to him and he gave me a referral to see Dr Banergee [sic], the Psychiatrist but the appointment was not until April 2012.
6.Eric Duck was promoted to the position of Technical Manager for the company in about late 2010. Prior to that time I had not had much to do with him and was mainly dealing with the previous technical manager.
7.Up until May 2012 my personal relationship with Mr Duck was okay but I had experienced some problems with him on technical matters. He appeared to be unfamiliar with the requirements of the Pacific Valkyrie and its sister ships which were a new generation of vessels in the Australian offshore area. They had different electronics and automation systems and engine set ups.
My general work roster was 4 weeks on, 4 weeks off. The Pacific Valkyrie was working in the oil and gas fields in Bass Strait.
8.In January 2012 we experienced problems with the cylinder head on the starboard main engine. We removed the head on 30 January 2012 and fitted a spare cylinder head which we had obtained from our sister ship, the Pacific Vulcan. The broken head was sent ashore to be forwarded to MAN Diesel in Sydney for repair. I emailed Eric Duck about this issue on 29 and 30 January 2012.
9.This left the Pacific Valkyrie without a spare cylinder head. I was keen to get the original head back as quickly as follows [sic]. Eric Duck, as the Technical Manager, was primarily responsible in following this through and I wrote to him about the matter on 5 February 2012 and 15 March 2012. By 15 March 2012 the matter was becoming somewhat urgent as we needed to remove the cylinder head from the port main engine to undergo overhaul ashore. The original cylinder head which we had removed in January was eventually returned direct to the Pacific Vulcan in about mid March 2012.
10.Our spare cylinder head was fitted to replace the port main engine cylinder head which went ashore on 19 March 2012. I emailed again to the company on 19 March 2012 seeking advice as to the earliest possible return of that head as we were once again without a spare. I received no response to that email. On 3 April 2012 I emailed Robert Wackett at MAN Diesel in order to chase him up about this. I also wrote to Steffi Harkins, the Swires Fleet Support Coordinator about the matter. She responded on 10 May 2012 by an email indicating that they were chasing MAN up.
11.By May 2012 we had effectively been without a spare cylinder head since January of that year.
12.On 10 May 2012 the vessel broke down at sea near Barry’s Beach off the southern coast of Victoria. This occurred because the exhaust valves in the starboard cylinder head had become corroded. This had been an ongoing problem. I emailed Eric Duck at 10:08 am on 11 May 2012 and requested that arrangements be made for the Pacific Vulcan to come alongside so that we could borrow its spare cylinder head.
13.Mr Duck replied to my email and advised that he had located the spare head at MAN Diesel in Sydney. He said that he intended to make arrangements to get the cylinder head shipped back to Melbourne. He hoped that I had the spare exhaust valves to be fitted to the cylinder head when it was on board. I replied on the same day and said that I thought there was no point in doing this and that the work was best left to MAN. Several further emails passed between us on 11 May 2012 concerning the technical issues in relation to fitting valves to a cylinder head. I disagreed with his plan for the following reasons:
(a)The quickest way to get the Pacific Valkyrie back in operation was to replace the leaking starboard main engine cylinder head with the spare off the Pacific Vulcan, which was nearby, rather than wait for the head to arrive from Sydney. Even when dockside at Melbourne another vessel would still have to be diverted to pick it up and run it out to the Pacific Valkyrie. All of that would take time.
(b)I was concerned that the head which was coming from Sydney still needed to have its exhaust valves put back into it. That is normally not a major task but if there was a problem and the valves needed grinding or calibration, that was a job better done ashore.
(c)The best course was for the head to be left on shore in Melbourne for it to be checked and the work completed, so that we could pick it up at the end of the swing.
14.The spare cylinder head from the Pacific Vulcan was delivered on board the Pacific Valkyrie on 12 May 2012. We worked all night to install it and we got the Pacific Valkyrie back into unrestricted service at about midnight on 12 May 2012. I emailed Mr Duck and informed him of this early on 13 May 2012. I note that there is a typographical error in that email in that the reference to ‘April’ should read ‘May’. The Master congratulated me for getting the starboard main engine back in operation.
15.At about 10:00 pm on 14 May 2012 Mr Duck rang me and we spoke about some other general matters and he then said to me words to the effect:
‘When the cylinder head comes back on board I want you to put the valves in right away.’
I said to Mr Duck that I couldn’t see the urgency in putting the exhaust valves in straight away. It takes 6 hours to remove and replace a cylinder head. The work involved in putting two exhaust valves in the new cylinder head would take between 15 to 30 minutes. Accordingly if we did need to replace a cylinder head again the amount of time involved in fitting the two exhaust valves would be insignificant. It was this that I tried to explain to Mr Duck.
I said to him words to the effect that ‘When the spare cylinder head comes back on board, and we need to use it, I will install the two exhaust valves. If we did not need to use the cylinder head then the next crew could do it when the swing changes in early June.’ I said to him that we had our hands full with plenty of other more essential work than fitting exhaust valves into a spare cylinder head and I did not see that it was an urgent job.
Mr Duck then said in an aggressive tone: ‘The urgency is that I’m telling you it’s urgent.’ He then hung up.
16.I could not understand Mr Duck’s logic. At this stage we were in the middle of Bass Strait and were working and the ship was once more fully operational and we were not planning to come back into port till the end of May 2012. The spare cylinder head was not even on board and Mr Duck was telling me that I had to fit the two exhaust valves to it as a matter of urgency. I assume that Mr Duck was upset that I had been able to get the Pacific Valkyrie back up and running without having to wait for him to get the spare cylinder head back from Sydney. I also assume that he was embarrassed about the length of time it took him to get the cylinder head fixed, a fact which I have raised with him in a number of my emails.
17.At 10:36 pm and following the above telephone conversation I forwarded an email to Mr Duck to confirm what had been discussed.
He responded by email at 11:19 pm informing me that I had been removed as Chief Engineer from the vessel and that when ashore he would arrange for a meeting in order to address my refusal to carry out his lawful commands.
18.I felt devastated about Mr Duck’s response. I was in a state of shock. I felt humiliated, I couldn’t believe it. I discussed with some of the other officers on board and they agreed with me.
19.Over the next 16 days the ship continued to work in Bass Strait. It didn’t come into port. We came into an anchorage close to Barry’s Beach on a couple of occasions to run from bad weather. The company could have taken me off the vessel then but it didn’t. They could have used that opportunity to get the cylinder head back on board then, but they didn’t. The head did not come back on board until sometime after we docked at South Wharf in Port Melbourne on 30 May 2012. I find this somewhat surprising given Mr Duck’s stated position that it was ‘urgent’.
20.During the 16 days that I remained on the vessel I attempted to do my work to the best of my ability. It was difficult because I felt emotionally shattered by Mr Duck’s decision to have me removed from the vessel. I felt that decision was completely unwarranted, particularly in view of my many years service for Swires. I became very stressed, anxious and worried. I could not sleep and was continually ruminating about what had occurred. I felt that for a Chief Engineer to be removed summarily from a vessel, was a tremendous humiliation.
21.I left the vessel when it arrived alongside at South Wharf, Port Melbourne on 30 May 2012. My swing was due to finish on about 7 June 2012.
22.I contacted Mr Philip Olsen from my union, the Australian Institute of Marine & Power Engineers for assistance in relation to the matter. He corresponded with the company’s Human Resources Manager, Mal Hearnden and requested that the company reconsider its decision, however he refused to do so.
23.When I got home I was feeling shattered. The whole issue seemed to consume me and I couldn’t think of anything else. I lost my appetite and had difficulty sleeping.
24.On 5 June 2012 I saw Dr Mustapha and he prescribed Lexapro and gave me a certificate off work. He also gave me a referral back to see Dr Banergee [sic] and the first appointment I could get with him was on 19 June 2012.
25.Mal Hearnden sent me an email to arrange the meeting and that duly occurred in the Fremantle office on 7 June 2012. Present at that meeting was Mal Hearnden and Simone Osten, Mr Duck, Phil Olsen from the Union and myself. Mr Hearnden said that I had been rude to Mr Duck. I disputed that. I have never sworn at him. I admit that I call a spade a spade and I don’t necessarily appreciate being told how to do my job. I know how to do my job. I know that the company says in its email of 8 June 2012 that I had refused to obey other instructions from Mr Duck. I dispute this and I have never been given details of those alleged occurrences. Mr Olsen enquired as to what the company proposed to do in relation to the matter. Mr Hearnden said that they would let us know tomorrow.
26.On 8 June 2012 I received an email from Mr Hearnden setting out his proposal, namely that I apologise for being rude and that I agree to a demotion to First Engineer for a minimum of 3 swings so that I take that opportunity to learn how other Chief Engineers react to directions from the Technical Manager.
27.I replied to that proposal saying that I was not in a position to respond as I was not well and had been certified unfit for work. I have not made any formal response to that email since that time. I feel that the company was intent upon making me a scapegoat. I felt that I should have been congratulated, as I had been by the Master, for getting the Pacific Valkyrie back into operation so quickly. I felt that Mr Duck was deserving of criticism for failing to chase up the return of the spare cylinder head despite prompting by me on several occasions that he do so. I felt that Mr Duck decided to make an issue about installing the exhaust valves into the cylinder head as a matter of urgency, even when the head was not on board, in order to deflect criticism from his own handling of the matter.
I found it completely objectionable that I was to be demoted and made to apologise in circumstances which I believe were totally unwarranted.
28.I saw Dr Banergee [sic] on 19 June 2012. He continued to certify me unfit for work and he’s changed my medication. I am currently taking Pristique 150 mg once a day. ... I last saw him on 30 October 2012 and have an appointment for review on 20 November and 11 December 2012.
29.My psychologist is Ms Liney [sic] Ford ... I first saw in [sic] early August 2012. Initially I was seeing her once a fortnight, now it’s about once every 3 to 4 weeks.
30.Dr Mustapha has received reports from Dr Banerjee and Dr Ford and has continued to declare me unfit for duty. Dr Mustapha’s details are recorded in the workers compensation certificates that I have been forwarding to Swires on a regular basis ...
31.Currently I’m having problems with my blood pressure. This developed in about September of this year. Dr Mustapha has put me on Micarardis medication which seems to be controlling it. I’m also suffering from recurrent headaches.
32.I am very passionate about my work and I feel greatly distressed about what has occurred. Since my departure from the vessel the Pacific Valkyrie has left the Australian coast. I have a suspicion that the company all along decided to provoke this dispute in the hope or expectation that I would resign.” (Exhibit A1)

In his examination-in-chief the applicant was referred to paras 3, 4 and 5 of his witness statement in which he referred to episodes of stress that he had experienced in 2007, 2009 and from November 2010. He said that it was not until February 2012, however, that Dr Mustapha referred him to a psychiatrist, Dr Banerjee, whom he first saw in April 2012. He added that he had, to the best of his recollection, never seen a psychiatrist before he saw Dr Banerjee in April 2012.
The applicant said that, when he saw Dr Cheng, Consultant Psychiatrist, at the respondent’s request in December 2012, he told Dr Cheng, to the best of his knowledge, about his previous problems with stress and depression.
The applicant was referred to para 15 of his witness statement in which he referred to a telephone conversation which he had with Eric Duck at about 10.00 pm on 14 May 2012. He was also referred to para 17 of his witness statement in which he referred to an email which he sent to Mr Duck shortly after their telephone conversation and Mr Duck’s email in reply. A copy of those emails was tendered in evidence (Exhibit A3). The applicant’s email to Mr Duck states as follows:
“ This is to place on record that the following were our stated positions during our telecom this evening wrt to the spare ME cylinder head that is yet to arrive o/b.
My position as stated to you:
1.That if required to be used I will install the 2 exhaust valves in the cylinder head and use it. If not required over the next 3 weeks then the oncoming crew can do it, as we have contributed everything else to solving the vessels problems and continue to do so.
2.As the vessel has been without a cylinder head o/b for 2 months, now that there will be a spare head returning there is no real need to install the 2 remaining valves right away therefore I did not see it as an urgent job any longer.
Your position as stated to me was simply:
1.Quote: ‘The urgency is that I am telling you it is urgent’. Nothing further.
I would place on record that despite my many pleas, even though there was no spare o/b, by your own admissions the 1^st time you enquired after the head, and became aware that there was a problem and the head was not ready was 3 days ago – after 2 months of the vessel sailing without a spare cylinder head.
Should anything stated above not be the case then please advise.”
Mr Duck’s email in reply states as follows:
“ Your interpretation of my position is not correct. The urgency in this matter is that you have received an instruction to install exhaust valves into a cylinder head and have communicated your intention not to carry it out. Your attempt to erode the legitimacy of the instruction is noted.
Your documented and verbally communicated intention to refuse carrying out an instruction from management is the issue and this cannot remain unaddressed. I have asked Mai [sic] to find a suitable relief for you in order that you can attend the office so that this matter can be properly addressed. At this stage it is not known how long it will take to secure a relief for you and you will be kept up to date in this regard.
The purpose of our telephone conversation yesterday was to secure agreement and achieve resolution. It is regrettable that you have chosen to escalate this matter.
Your continued refusal to follow my instructions have left me with no option other than to remove you from the position of Chief Engineer of VAK. Once you are ashore we will arrange for a meeting to be held with you in our office in order to address your refusal to carry out my lawful instructions to you.
Cc Mai [sic], please arrange a suitable relief for Chief Engineer Dave Bose as soon as possible.”
[The Tribunal notes that it appears from those emails that they were copied to (among others) Malcolm Hearnden.]
The applicant was referred to para 16 of Eric Duck’s witness statement, dated 25 January 2013 (see paragraph 36 below) which appears to refer to the abovementioned telephone conversation of 14 May 2012. The applicant denied that, during that conversation he said:
“I am not going to do it”
and
“Then take me off, take me off”
as stated in para 16 of Mr Duck’s witness statement.
The applicant said that he was not immediately removed from the Pacific Valkyrie but that he continued to do his normal duties as Chief Engineer until the ship next came into port on 30 May 2012. He said that, although he was under a lot of stress following his communications with Mr Duck, he, as a professional, had to continue to perform his duties in the interests of the ship and its crew until the ship came into port.
As regards para 25 of his witness statement, the applicant said that Mal Hearnden, the Personnel Manager, sent him the relevant email on 1 June 2012. He added that that was the first communication he had received from Mr Hearnden about this matter.
In cross-examination the applicant was referred to an extract from the respondent’s Safety Management Manual which sets out the job description, duties and responsibilities of a Chief Engineer (part of Exhibit A2). He agreed that the document states that the Chief Engineer reports to the “Master” (of the vessel) and “Management” and he acknowledged that “Management” includes the Technical Manager. He said that he accepted that the Master has responsibility for technical matters on the vessel and can “veto” his decisions on technical matters. He said, however, that he did not accept that Mr Duck (the Technical Manager) had the authority to direct him (the Chief Engineer) as to what technical tasks are to be performed on the vessel, or as to how and when such tasks are to be performed. He added that he did not accept that Mr Duck had the authority to “override” his decisions in the “day-to-day running of the vessel”.
The applicant was referred to various emails he had sent to Mr Duck in the period March–August 2011 (summarised in para 8 of Mr Duck’s witness statement of 25 January 2013 set out in paragraph 36 below). He acknowledged that the language he had used in some of those emails was not appropriate and he explained that, at that time, he was experiencing stress and frustration because he was not receiving appropriate support from management (including Mr Duck) for the proper and safe running of the vessel, and that, on occasions, “in the heat of the moment” he had “lost [his] cool.”
The applicant was referred to another extract from the respondent’s Safety Management Manual which sets out the job description of the Technical Manager and which states (inter alia):
“ The Technical Manager is the Company’s technical focal point within a particular Outport’s area. His responsibilities and authorities with respect to safety and quality are:
·technical management of ships under his Outport’s control including repairs, dry-docking & operation to ensure compliance with statutory regulations and class rules is maintained;
…” (Exhibit R1)
The applicant said that that statement did not mean that the Technical Manager had the authority to decide what, how and when something was done on a vessel. He added that he saw nothing in that statement which gave the Technical Manager “the ultimate authority to instruct the Chief Engineer in how to do his job”.
The Evidence of the Medical Witnesses
Dr Mohamed Mustapha
Dr Mustapha has been the applicant’s treating general practitioner since November 2001. On 5 June 2012 Dr Mustapha issued a Workers’ Compensation FIRST Medical Certificate in respect of the mental condition, the subject of the applicant’s claim for compensation, in which he described that condition as “severe depression” (T4).
Dr Mustapha confirmed that he had provided a report regarding the applicant, dated 15 November 2012, to the respondent’s solicitors at their request, and that its contents are true and correct. That report states as follows:
“ 1.      On what dates since 30 May 2012 has Mr Bose attended at your practice?
05/06/2012  21/8/2012
20/06/2012  24/9/2012
23/07/2012  1/11/2012
30/07/2012  2/11/2012
02/08/2012
2.On each occasion, what were his symptoms and complaints upon presentation?
5/06/2012 – Mr Bose appeared distressed. He stated that on 14/05/2012 he had a disagreement with the technical manager who asked him to leave the ship thereafter. Mr Bose complained of disturbed sleep headaches and dysfunctional.
On 20/06/2012 stated that he had seen Dr Amit Banejee Psychiatirst. Mr Bose was referred to Dr Banejee in February 2012. Mr Bose complained of lack of motivation, sleep disturbance, mood swings, agitation and withdrawn and that he spent most of his time in his room. He stated that he spoke loudly to himself and quite unconscious of it initially and embarrassed when people stared at him.
23/07/2012 – Mr Bose complained that he had difficulty in coping with issues regarding work.
30/07/2012 – requested medical progress report for work.
2/08/2012 – Attended to be referred to a clinical psychologist under Better Access Mental Health careplan.
21/08/2012 – Stated to be receiving psychological councilling and requested medical certificate and progress report under workers compensation.
24/09/2012 – Mr Bose complained of having anxiety feeling worse after receive news from com care.
1/11/2012 – Stated to be more stressed out. Mr Bose had an app in Sydney.
3.What were his symptoms and complaints at the time of your most recent review?
Mr Bose appeared distressed with a flat affect. He stated that he had increased anxiety as he was going to Sydney.
4.What is your diagnosis of Mr Bose’s injuries?
Mr Bose is diagnosed of suffering from anxiety depression exacerbation by events at work.
5.What is your prognosis?
Prognosis to be guarded as Mr Bose has a past history of anxiety depression.
6.Please describe Mr Bose’s current treatment regime.
Mr Bose is currently on medication Lexapro 20mg and under Dr Amit Banejee. Receiving councilling by psychological health care.
7.What are Mr Bose’s current vocational, domestic and recreational activities?
Mr Bose stated to spend most of his time in his room.
8.In your opinion, is Mr Bose currently fit to work in his pre injury duties as a Chief Engineer on a full time basis without restriction?
Mr Bose is currently unfit of his usual work.
9.What further treatment in your opinion does Mr Bose require in order to enable a full recovery of his symptoms and injury? Please provide us with an indication as to the type of treatment required, the duration for which such treatment will be required and the approximate cost of the proposed treatment.
Mr Bose is currently under psychiatric management by Dr Banejee who could enlighten you on the duration and cost of further treatment.” [sic] (Exhibit A11)
Dr Mustapha said that he first prescribed anti-depressant medication (Efexor) for the applicant in June and July 2007 and that he next prescribed anti-depressant medication (Lexapro) for him on 27 October 2009. He said that the applicant next consulted him about stress and depressive symptoms on 21 February 2012 but he did not prescribe anti-depressant medication for him on that occasion.
Dr Mustapha said that the applicant next consulted him about stress and depression on 5 June 2012 and he prescribed Lexapro for him on that occasion.
Dr Amit Banerjee
Dr Banerjee, Consultant Psychiatrist, confirmed that he had prepared various reports regarding the applicant’s psychiatric status (set out in paragraphs 22-27 below) and that their contents are true and correct.
Dr Banerjee’s report of 24 April 2012, which is addressed to Dr Mustapha, states as follows:
“ Thank your [sic] referral of David, a 58 year old marine engineer, who has been with the same company, Swire Pacific Offshore, as a chief engineer for the last 21 years. I am very familiar with David’s socio cultural background. He is of Anglo-Indian heritage, his father was a Bengali Hindu from Calcutta, whilst his mother was from an Anglo-Indian family.
David reports a long feeling of lack of identity because he had a Christian first name and a Hindu surname. He has had an ongoing relationship with his lady friend Sharmaine [sic] and she has finally migrated to Perth in the 1990s. They did marry in 1998, unfortunately it did not work out and they divorced in 2000. They still remain quite close though not exactly in a husband/wife relationship.
David’s problems stem from a sense of inferiority from the time that he was growing up in Calcutta. He has obviously been successful in some areas of his life, for example, his profession. The stronger and more healthier aspects of his personality need to be tapped into in psychotherapy and he should be encouraged to use more mature defences.
I have not prescribed any medication for David today. I have asked him to keep a watch on his alcohol use which is definitely more than what would be recommended. He does not drink when he is offshore though which is a saving grace. I have called him back for an appointment in the third week of June as he is going back out to sea in May. I intend to see him and Sharmaine [sic] together for some sessions of therapy in the coming weeks and months.
…” (Exhibit A4)
Dr Banerjee’s report of 20 June 2012 to Dr Mustapha states as follows:
“ This letter is to inform you that David came for his first follow up appointment with me today. He has come back on shore at the end of last month.
David reports that he has drunk only on three occasions over the last 19 days. His lady friend Charmaine currently appears to be busy with her own issues in life and their relationship remains conflictual. David does speak to his older sister but remains concerned that Charmaine will not appreciate him contacting his sister for support.
David currently reports an increase in his depressive symptomatology. He claims he is often talking to himself and sometimes even shouting to himself in public places. He has very little motivation to do anything at home. He has had further problems with his superiors at work, he does not think that he is ready to go back offshore, which he is scheduled to do at the end of this month. He is entitled to 3 months sick leave, and I would recommend that he makes use of that whilst his depression gets better.
As I wrote in my brief letter to you which I have handed to David today, I have suggested an increase of his ESCITALOPRAM to 20mg mane. I have also given him a non PBS script for QUETIAPINE 25mg, to be used at a dose of 25 to 50mg at night.
My initial plan was to do some psychotherapeutic work with David, but I think he has somewhat entrenched narcissistic and paranoid personality features which would not be amenable to therapy. He is questioning himself as to how long he can continue with his work. One of his issues is the lack of meaning and purpose in life, which we have discussed a bit in our appointment.
…” (Exhibit A5)
Dr Banerjee’s report of 23 August 2012 to Dr Mustapha states as follows:
“ This letter is to inform you that David came for a follow up appointment with me today. His previous appointment was on the 10^th July.
He has been on tablet PRISTIQ 100mg mane and tablet QUETIAPINE 50mg prn till now. Today he reports that he feels that the PRISTIQ has started to work. He seems to be well supported currently by his older sister Greta and ex partner Charmaine who lives nearby.
David remains preoccupied with the dispute with his employers. He remains on sick leave currently and his union has advised him to file a workers compensation claim.
He continues to complain of periodic lack of motivation and that he is losing the urge to get up and fight for his rights with his employers. He responds well to supportive counselling and currently his family seems to be rallying around him.
Today I have advised him to increase his PRISTIQ dose to 150mg mane. I have provided him with a four months supply. He tells me that he is not taking the QUETIAPINE as frequently as he used to. I have called him back for an appointment in 3 weeks time.
…” (Exhibit A6)
Dr Banerjee’s report of 31 October 2012 to Dr Mustapha states as follows:
“ This letter is to inform you that David came for a further follow up appointment today. His last appointment was on the 18^th September 2012.
You would be aware that David’s company has rejected his claim for workers compensation. He is now going to fight it out in court with the help of his union. David is travelling to Sydney on the 4^th November to meet lawyers recommended by his union.
David fears that he has slipped back and bit and continues to think of his treatment by the company, most of the waking day. He tends to go to sleep between 9.00 and 10.00 pm, but often wakes up early in the morning after 3.00am. He continues to complain of lack of motivation. He continues to worry about muttering to himself and his lack of motivation in relation to his self care.
He seems to be well supported by his sister and his ex partner. …
David continues to exhibit signs and symptoms of major depression with some poor prognostic characteristics, like insidious onset and lack of volition. He acknowledges that he is a somewhat of a humourless person, he does not seem to fully understand the extent of the support he receives from his sister and from his ex partner.
…” (Exhibit A7)
Dr Banerjee’s report, dated 4 December 2012, which is addressed to the applicant’s solicitors, states as follows:
“ This is to confirm that I have received your request for a medical report on Mr Bose in relation to his application to the Administrative Appeals Tribunal regarding his dispute with his employers Swire Pacific Ship Management (Australia) Pty Ltd.
…
I am providing this report as I have been Mr Bose’s treating psychiatrist since 24 April 2012. I am preparing the report based upon my personal knowledge of Mr Bose and on the basis of file notes that I have kept in relation to my treatment of Mr Bose.
I shall structure my report providing specific answers to the eight questions that you have posed in your letter to me regarding Mr Bose’s psychiatric condition.
(a)History obtained
Mr Bose is a 58 year old Anglo Indian man who does not have any children of his own. He initially consulted me on 24 April 2012. He reported his problems with low mood, harmful alcohol use when on shore, and problems with his employers in recent months. He exhibited a low mood, and expressed a sense of frustration about being on his own in life. He also alluded to problems with his ex-wife, who remained a significant other in his life and often looked after some of his needs. He felt that his contribution to the company was not appreciated enough, he felt that he had been discriminated against by not being given jobs on higher horse power ships which would allow him to earn more money. He also acknowledged sending some unpleasant emails to his work peers and human resource personnel. He never disclosed the contents of these emails to me.
I am familiar with Mr Bose’s social-cultural background and felt that I would be able to establish good rapport with him. I called him back for a follow up appointment in the third week of June 2012. This was primarily because Mr Bose told me he would be on the ship during the month of May 2012.
At his follow [sic] appointment on 19 June, Mr Bose’s condition had deteriorated markedly. Mr Bose was able to explain to me his problems at work in the month of May. He reported that he had come back on shore on 30 May and was due to go back at the end of June. He had been diagnosed with severe depression by his General Practitioner on 5 June 2012 and had been prescribed an antidepressant Escitalopram, 10mg in the morning. I advised him to increase the dose of Escitalopram to 20mg in the morning. I also prescribed tablet Quetiapine 25mg at night to aid Mr Bose with his sleep.
Mr Bose’s mood remained low in subsequent appointments in July and August 2012. His conversation often centred around his resentment about the way he had been treated by his employers. He also expressed a concern about his lack of motivation, his occasional tendency to talk to himself and his occasional doubts about ‘the purpose of it all’ with accompanying death wish and suicidal ideation.
His mood has improved marginally since there has been progress in the review of his case, first by Comcare, and now through the Administrative Appeals Tribunal.
His medications were changed to tablet Desvenlafaxine (Pristiq) an antidepressant on 10 July 2012. The dose was increased to 150mg on 21 August 2012. He has been using tablet Quetiapine very occasionally.
(b)          Findings on examination.
Mr Bose remains an intense and mostly unhappy person, especially since the problems with his employers have surfaced and his initial request for a review of his employer’s decision was turned down by Comcare. On mental state examination, he mostly maintains good eye contact, his communication is spontaneous, but he comes across as an intense person who does not smile a lot. There are no problems with his comprehension and communication. The intensity of his depression has been relieved somewhat with the use of antidepressants. In later appointments, Mr Bose has also told me that his alcohol usage is very much under control. At his worst he tends to lapse into periods of amotivation to the point that he sometimes neglects his personal hygiene and basic day to day chores.
He visited his lawyers in early November in Sydney and since then his mood seems to be slightly better.
(c)        Dates of all consultations in relation to this matter.
My initial consultation with Mr Bose was on 24 April 2012.
Since then I have seen him on 19 June, 10 July, 21 August, 18 September, 30 October and finally on 20 November 2012.
(d)      Diagnosis
My primary diagnosis for Mr Bose would be that of a Major Depressive Disorder of moderate intensity without psychotic features. At his initial consult on 24 April, I had kept a differential diagnosis of Adjustment Disorder with depressed mood and Major Depressive Disorder but in his subsequent appointments I felt that he qualified for syndromal criteria for depression and hence I believe the latter diagnosis to be the correct one.
(e)       Your opinion as to our client’s capacity for work.
Mr Bose made it quite clear to me that he was very proud of his work ethic and the fact that he had been with the same company over 16 years. I believe that he is capable of working in his discipline as a marine engineer, especially once his current dispute with his employer is satisfactorily resolved.
(f)        Details of treatment carried out or recommended
Initially Mr Bose was prescribed tablet Escitalopram 10mg on 5 June 2012 by his General Practitioner. I increased the dose of the Escitalopram to 20mg in the morning on 19 June 2012. Because I felt that he was not responding appropriately to this medication, I changed him over to tablet Pristiq (Desvenlafaxine) 50mg on 10 July 2012. I advised him to increase the dose of Pristiq to 100mg in the morning after seven days. On 21 August 2012 I increased his dose to 150mg in the morning. I have reduced the dose to 100mg on 20 November 2012 as Mr Bose’s mood seems to be better…
I have attempted supportive psychotherapy since Mr Bose has decided to come and see me. I am aware of Mr Bose’s socio-cultural background, and believe that I am in the best position to provide this therapy.
(g)Your opinion as to whether our client’s medical condition was contributed to in a material degree by his employment
In my opinion Mr Bose’s exacerbation of depression was definitely contributed to in a material degree by his employment.
Mr Bose has been consistent in expressing his view that the order for him to come off the ship and work as a first engineer after so many years without giving him an opportunity to explain himself, was definitely an unfair one. Mr Bose continues to maintain that from a technical point of view his decision not to service the piece of equipment in question as requested by the Technical Manager, was the correct decision.
(h)Prognosis
I am cautiously optimistic that Mr Bose will make a substantial recovery from his current Major Depressive Disorder. It appears that there is a strong reactive element to his depression, which should get better once his dispute with his employer is satisfactorily resolved.
Mr Bose has become cautious with his alcohol usage in recent months. When he is on board the ship, he abstains totally. Alcohol usage is not a factor in determining his mental state currently.
Mr Bose comes across as a person who takes his job very seriously, and as someone who does not have a ready sense of humour. These personality traits may have caused him to be sensitive to perceived insults in the past, but Mr Bose has not described to me any past instances of disputes with his employer. Thus I am hoping that Mr Bose will be able to learn and grow from his experience, and be able to re-join the workforce a better and stronger person..
…” (Exhibit A8)

Dr Banerjee provided a further report, dated 15 January 2013, to the applicant’s solicitors as follows:
“ Further to my report to you dated 4 December 2012, I can confirm that Mr Bose has not been fit to work as a result of his psychiatric illness since his removal from the ship he was working on. I understand this happened on 30 May 2012.” (Exhibit A9)
As regards the opinion expressed by him in para (g) of his abovementioned report of 4 December 2012, Dr Banerjee said that, in his opinion, the incident of 30 May 2012, when the applicant was “asked to come off the ship and asked not to go back” was “the major factor” in exacerbating his depression and triggered an exacerbation of his existing depression. He said that the incident of 30 May 2012 “tipped the scales significantly towards major depression” and that, as a result of that incident, the severity of the applicant’s symptoms was sufficient for a diagnosis of Major Depressive Disorder.
Dr Banerjee confirmed that the applicant had not given him a history regarding a meeting with the respondent’s representatives on 7 June 2012 in relation to the incident of 30 May 2012.
Dr Victor Cheng
Dr Cheng, Consultant Psychiatrist, confirmed that he had prepared three reports regarding the applicant and that (subject to one minor amendment in one of those reports) their contents are true and correct.
Dr Cheng’s first report, dated 3 December 2012 is addressed to the respondent’s solicitors and states as follows:
“ Thank you for your request for a report for Mr David Bose who was assessed at Prime Specialists on Monday 3 December 2012.
…
CIRCUMSTANCES OF INTERVIEW
Mr Bose was a middle aged man who was neatly dressed and well groomed. He was co-operative with the interview process although at times was on the verge of tears. He was settled throughout the interview.
The information he presented was internally consistent and he appeared to be genuine in the information he provided.
He understood the purpose of the interview and gave consent for a report to be forward to yourselves.
CIRCUMSTANCES SURROUNDING THE CLAIM
Mr Bose is a 57 year old man who stated he was currently in a relationship.   He stated he had been divorced from his wife for a period but they were now reconciled and lived together. He stated he had no children though he had one step-son aged 32 years.
Mr Bose stated that he was not working at the present time and last worked on 30 May 2012. He stated he was not being paid at the present time and continued to be employed by Swire Pacific Ship Management.
Mr Bose stated that he had not been engaged in any other work and was not involved in any work rehabilitation. He stated there were no plans to go back to work at the present time as this depended on being fit to return back to work.   He felt at the present time he was not fit to return in his current condition.
Mr Bose stated that he was employed by Swire Pacific Ship Management and had been working with them for twenty years as a Chief Engineer aboard a sailing vessel. He said he worked on supply vessels that moved oil rigs around. He stated he worked on a five weeks on and five weeks off basis.
He stated he was employed on a full time basis. He stated it was his 35^th year in the Merchant Navy. He stated he used to work for a shipping corporation in Noumea for fourteen years and his current employer for more than 20 years.
Details of the claim
With regard to details of the claim, Mr Bose stated that on the 11 May 2012 the vessel broke down and had engine failure. He stated a cylinder head needed to be replaced but there were no spares on board. He stated he had been ‘pestering the company’ to get a spare cylinder head on board for some time and the Technical Manager had not bothered to reply to his request for some months.
He stated that when the vessel broke down he enquired about getting a replacement cylinder head. He stated this was not ready and it had to be flown from Sydney to Melbourne, and when it came on board he needed to install it.
Mr Bose stated that in the meantime he took a spare cylinder head from a sister ship which was not operating and installed it into the vessel to recommence operations. He stated that he did this by the time the part arrived at the ship.
He stated that he had a conversation with the Technical Manager who insisted that he continue to do further work on the cylinder head. He stated that he was not able to do this as there were other problems in the ship at the time. He stated he was not able to do it right away and as they were not due to go back into port for a further three weeks he stated that he would attend to it then.
He stated that in the conversation with the Technical Manager he told Mr Bose it was urgent because ‘I am telling you that it is urgent’. He stated the Technical Manager then hung up on him.
He stated the next thing he knew there was an e-mail for him to be removed from the vessel.   He stated there was no warning of this.
He stated that he found this to be an insult and very humiliating as he was the most senior Technical Engineer in the Company and had an exemplary technical record. He stated that the Technical Manager was shore based and had only been working in that role for eighteen months.
He stated that the Technical Manager was shore based and was not actually his boss.
He stated that the Technical Manager’s name was Eric Duck and made allegations that he was refusing to do the job. He denied that he refused to do the job.
He stated that prior to this he previously had some run-ins with Eric. He stated Eric was not a technical person and did not have sufficient experience with the vessel. He stated he had 35 years of sailing experience and that Eric did not have very much experience.   He stated that if Eric told him to do something which he did not think was right, he would call a spade a spade. He said he had never refused to do a job. He stated he had some run-ins with him in the past, but stated there were no personal issues and he had not previously refused to do any job that he was asked to do.
Mr Bose stated he had received a note that he was relieved and removed. He stated that he was removed on the 30 May. He stated that he was not removed immediately but that he was eventually flown off the ship approximately one week prior to them due [sic] to come into port. He stated he could not believe it and described it as being very humiliating.
He was supposed to be sent home and then come back to a meeting.
He stated he could not ‘perform’ at home. He stated he went to see his Doctor and told the Doctor about the meeting at that consultation. He stated he was worried about it. He stated he was just not worried about the outcome of the meeting, but the ‘injustice of the whole thing’.
He stated he went to see the Doctor on the 5 June and told him that there was a meeting on the 7 June. He stated the Doctor told him he was not in a proper frame of mind to go to the meeting and told him that he should not go. He stated that he felt he needed to go to the meeting as he needed to know what his employers were planning to do.
He stated he went to the meeting on the 7 June and they raised the point that he refused to do a job. He stated that he refuted this. He stated that the next day they wanted him to apologise and to be demoted in rank to a First Engineer. He stated he had always been the Chief Engineer of the vessel.
He stated once he got the letter he sent in a Sickness Certificate and stated he was not in a fit state of mind to make decisions in the meeting. He stated when he became well again he would answer the question about his demotion.
He stated that he obtained a Sickness Certificate ‘because of the whole trauma of being taken off the vessel so unjustly’. He stated ‘I could not believe it. It just hit me’.
He stated that now six months down the track ‘that is all I can think of’, ‘it is like a stuck record in my mind’.
He stated he was not sure what his future plans were. He stated he wanted to get well.
…
He stated that sometimes he neglected to look after himself and sometimes, for example, had not cut his fingernails at times for a month. He stated he did not do any exercise anymore and would spend a lot of days lying in bed. He stated he did shower himself and did get changed.
He stated the longer it was going on the further he felt he was getting worse.   He stated he would have liked to go back to work.
Treatment received
In terms of treatment, Mr Bose stated that he had been seeing Dr Bannerjee [sic] since June 2012. He stated he had been treated with Pristiq 150 mgs mane as well as some medication Syqued for sleeping, and stated he took 40 mg tablets.
He stated the first time he took the medication it knocked him out.
He stated he had been seeing a Psychologist since August. He stated initially he was on two weekly appointments and that reduced down to three weeks, and now he was back to being seen every two weeks. He stated he also saw his General Practitioner on a fortnightly basis.
HISTORY OF PSYCHOLOGICAL SYMPTOMS
Daily routine
Mr Bose stated that he was regularly getting up at 3am in the morning. He stated he would wake up and lie in bed awake. He stated sometimes he would try and watch television although he would not be able to concentrate on this.   He stated this would happen approximately three to four times a week. He stated sometimes he would be able to doze off and get back to sleep, but on most days he was unable to return back to sleep and he would just lie in bed.
He stated other days he would wake up somewhere around 6.30 – 7am in the morning.
He stated that his wife left for work at 7.30 in the morning and on many days he would continue to lie in bed. He stated he would have his television in the bedroom and would lie in bed most of the day.
He stated at times he would get up to do his normal morning ‘ablutions’.
In terms of lunch he stated he was lucky if he had one meal a day. He stated if he managed to eat something for breakfast that might be it. He stated on the day of the assessment he had only eaten two scrambled eggs and did not feel hungry. He felt he had lost a little bit of weight, but not that much.
He stated that he might spend the whole day in bed, or at other times might get up and sit on the balcony and stare into space.
He stated that he used to go for walks in the park and exercise but he did not do this anymore.
He stated he did not do any exercise at the present time. He stated he did not do any housework and did not cook any meals, and did not do any gardening.
He stated his wife would come home at around 1 – 2 in the afternoon. He stated she worked for the apprenticeship training centre which was a Government Department, and she had been working reduced hours recently as she had a hand injury.
He stated that his wife cooked dinner. He stated also that his sister had been staying with him over the last four months to help out. He stated they had not wanted him to be alone at home.
In the evenings he stated he would try to watch television. He stated that was it and he did very little else. He stated that he would just sit there watching TV but was not able to concentrate on the program and he was not taking it in.
He stated he would usually go to sleep somewhere between 9.30 – 11pm. He stated if he was lying in bed and watching television then he would be more likely to fall asleep.
He said if he was sitting in the lounge he would not fall asleep. He said sometimes it would take him hours to get to sleep.
He stated he might have difficulty getting to sleep two to three times a week.
When I asked him what thoughts would go through his head, he stated that he would worry. He stated throughout the day and also at night he would think about what had happened and what ‘they have done to me’. He stated it was like a stuck record in his head.
He stated he found it distressing that he was removed from the vessel and that they had humiliated him and also put him through the last six months. He [sic] longer things had lasted the worse it was becoming.
He stated that he did not feel angry, although he did have moments of anger. He stated his main emotion was of sadness.
He stated at times he would feel tearful, and at times did become tearful.
He stated that once he went to sleep he would be asleep until 3am in the morning. He denied having any naps during the day.
In terms of contact with friends, he stated that he had withdrawn from contact with friends. He stated the last time he saw friends was approximately 3 – 4 months previously. He stated he was embarrassed to talk about it. He stated he wondered about his situation with his friends. He stated they wondered why he was not going back to work. He said he did not want to discuss it with them and had withdrawn from a lot of social contact.
He stated he had not been seeing many of his close friends and had been avoiding them over the last four months. He stated there were some neighbours he would see as he was unable to avoid them.
In terms of his wife, he stated if she was invited to parties she would go, but he would not go. He stated they used to go out together but did not do this any longer. He denied arguing with his partner and stated she was supportive.
…
In terms of contact and going out of the house, he stated that he generally did not go out to shopping centres. He stated there was a shopping centre right across from their house. He stated he would rarely go with his wife, and if he went he would sit outside on a bench.
In terms of contact with the family, he stated his sister and brother both lived in Perth and he did see his brother although not very regularly. He stated his brother would come around a couple of times a week and his nephew also came around.
Emotional symptoms
When I asked him whether or not he felt depressed, he stated that is what the Doctors were telling him. He stated at times he was tearful and felt like crying, usually when he talked about his current situation with other people. He stated he had broken down when he was talking about it, but had not been tearful if he was not talking about it.
He stated he had developed headaches and high blood pressure.
He felt that there was no future for him. He stated he was very passionate about his work and he defined himself by his job title. He stated now he had lost that crutch.
In terms of suicidal ideation, he stated that he had some thoughts there was no point in living and he had discussed this with his treating Practitioners. He felt he did not have any clear suicidal intent and would not go through with suicide.
In terms of guilt, he denied any feelings of guilt or self-blame.
There did not appear to be any early morning worsening of his mood.
He stated his concentration and memory had been poor and he had been forgetful of things and had a poor memory. He stated he could not maintain his concentration, for example he could not concentrate on a television program.
He denied experiencing any panic attacks although he generally felt anxious.
He stated the only time he became very worried was when he took the Seroquel and he collapsed. He stated he thought he was going to die. He said he could not get up and did not have any feeling in his legs. He stated he got a bit panicky at that point in time.
He felt things were getting worse over time and the situation was getting worse.   He stated he felt he was doing less over time.
He stated he was maintaining his progress until about two months prior to the assessment.
He stated he had plans to make some repairs on an investment property so that the granny flat at the back of the investment property could be rented out. He stated he had spent almost $30,000.00 on it. He stated he had not been able to motivate himself to do any work or organize any repairs on the property and that the work on the property had ceased.
In terms of alcohol he stated he did not drink very much. He stated he did not drink on a daily basis and would drink beer approximately 3 – 4 times a week and would drink 4 – 5 cans at a time. He stated this is more than he used to drink.   He stated he would sometimes have a couple of drinks at lunch time and then have a few in the evenings. He stated that it seemed to get him through a period when he would concentrate on the beers rather than the thoughts in his mind.
PAST MEDICAL AND PSYCHIATRIC HISTORY
He stated he first saw Mr [sic] Banerjee prior to the claim in April 212 [sic] because he was bringing all this work home with him. He stated on his weeks off he would take various problems at work for him to research when he was at home.
He stated he was having some problems in the relationship as a result of his behaviour and went to see Dr Banerjee to find out what was wrong with him. He stated that he would bring work home with him to study and make sure he had planned what he would do once he returned back to the ship. He stated that the conclusion by Dr Banerjee was that he was quite committed about his work.
He stated he did enjoy the work and loved his work. He denied any problems with the other people on the ship.
He stated that his wife was getting angry with him that he was spending all day sitting down and working on the ship on the internet and doing study during his shore leave. He stated this did not lead to arguments, but she was not happy with the time he spent on work.
He stated he only had one consultation and the conclusion from Dr Banerjee was that ‘is the sort of person I was and that you are proud of your work’.
Mr Bose denied any other past psychological or psychiatric symptoms. He denied having problems with anxiety or depression in his life.
He denied receiving past psychological or psychiatric treatment.
He said he had not previously been seen by any Psychologist or Psychiatrist apart from the consultation mentioned above. He denied being on antidepressants in the past.
He denied any family history of psychological or psychiatric illness.
He stated he did have some stress approximately 5 – 6 years prior to the assessment. He stated that he had some consultation with the Company but this did not lead him to any other particular treatment. He stated that he was not placed on medications but was seen for some counselling. He stated his work was very stressful as a Chief Engineer. He stated he had to be on his toes 24 hours a day and he took his responsibilities very seriously.
PERSONAL HISTORY
Mr Bose said he was born in India in Calcutta. He stated both his parents were deceased. His father died in 1984 and his mother in 1990. He stated his father died of a heart attack and they both used to work as teachers. He stated they were married for 40 years and they had a good marriage. He stated there were seven children and there were now 3 – 4 surviving siblings.
He stated he got on well with both his parents.
He described himself as being a very good student at school and was good at debating. He said he used to play a lot of sports and excelled in his studies, never less than first or second in his class. He stated he went to University and studied Marine Engineering and went to work in India in one company for 14 years and after migrating to Australia worked with his present company for 20 years.
…
He stated he had been with his wife for more than 30 years. They met when he was 22 and she was 16 years old when they married. He stated that her father did not approve of the relationship as it was not proper at that time for a 16 year old girl to have a boyfriend.
He stated they divorced around 2001 and stayed apart for two years. He stated at that time she did not like Australia as they used to live in the UK and she was not happy and wanted to go back to be with her family. He stated they separated, she never went back and they reconciled. He stated she had no family in Australia.
He stated he did not know if he could go back to the demoted position.
MENTAL STATE EXAMINATION
On mental state examination Mr Bose was a middle aged man who was casually dressed and neatly groomed. He was settled during the interview and was cooperative with questions.
There was no evidence of psychomotor agitation or retardation.
His speech was normal in tone, rate and modulation with no evidence of formal thought disorder.
His mood was described as depressed and his affect was reactive with no evidence of formal thought disorder or suicidal ideation.
ANSWER TO YOUR SPECIFIC QUESTIONS
1.The history of Mr Bose’s alleged psychological/psychiatric symptoms and complaints as reported by him and the onset and development of these symptoms.
Please refer to the history as presented above.
2.The symptoms with which Mr Bose presented with [sic] and the severity level of those symptoms as they were reported to you.
Please refer to the history as presented above.
3.Details of Mr Bose’s past psychological/psychiatric history, including treatment details, if any.
Please refer to the history as presented above.
4.Details of Mr Bose’s current treatment for his psychological/psychiatric symptoms, including current medications.
Please refer to the history as presented above.
5.Details of Mr Bose’s current domestic, vocational and recreational activities.
Please refer to the history as presented above.
6.Whether, in your opinion, Mr Bose has suffered or is suffering from any recognised psychiatric condition.
In my opinion, at the present time Mr Bose’s symptoms would probably qualify for a diagnosis of a Major Depressive episode as pursuant to DSM IV-TR considering the impairment in his level of functioning.
…
Ms [sic] Bose would qualify for a diagnosis of Major Depressive episode at the time of the assessment. He described a depressed mood and at times feelings of tearfulness. He described some disturbed sleep with difficulty staying asleep. He described reduction in his energy levels, concentration and memory. He described a reduction in loss of pleasurable activities. He described social withdrawal.
I note that he did not have any clear significant change in his weight although he described a reduction in his appetite. He did not have any early morning wakening or early morning worsening of his mood. He did not appear to have any suicidal ideation at the present time. He did not have any undue feelings of guilt or self-blame.
He did appear to have a significant impairment in his level of functioning and described attending very few activities around the house. He stated he spent the day in bed and had a significant social withdrawal and had very few recreational activities.
On the basis of this he would qualify for a diagnosis of a Major Depressive episode as pursuant to DSM – IV TR.
I note that the aetiology of his psychological symptoms is more consistent with the diagnosis of an Adjustment disorder. He described a number of stressors, which was causing distress as evidenced by his mood and anxiety symptoms.
The aetiology is in keeping with an Adjustment disorder with depressed mood and anxiety symptoms. Mr Bose did describe distress in relationship to various stresses, which included the incident at work which led to him being demoted from the ship and being removed from the ship. He found this quite humiliating and since that time he has continued to be distressed regarding the uncertainty surrounding the outcome of the claim and the uncertainty surrounding his future work prospects.
In a DSM-IV diagnostic system a Major Depressive episode is diagnosed based upon the severity of the symptoms rather than the purported aetiology.
I do not believe that Mr Bose was suffering from an underlying personality disorder as pursuant to DSM IV-TR. He did not have any evidence of early life attachment difficulties or early life development trauma. He does appear to have been able to sustain work and interpersonal relationships through his life.
It does appear that Mr Bose has been quite committed to his job and certainly his employment is central to his self-esteem and identify [sic] particularly in the setting of his inability to have children and as evidenced by his behaviour with regard to his employment whilst he was on shore leave.
7.Details of Mr Bose’s treatment to date and the outcome of that treatment on his condition. In this regard, please provide details of any such treatment Mr Bose has received from any clinical psychologist and/or psychiatrist to date and the names of the relevant treatment providers.
Please refer to the history as presented above.
8.Whether Mr Bose requires further treatment in relation to his psychiatric/psychological condition (if he, in fact, has a psychiatric condition). Please provide reasons for your response in this regard, detailing the nature, duration and anticipated benefits of the further treatment recommended.
In my opinion at the present time Mr Bose appeared to be taking antidepressant medications with very little improvement in his psychological symptoms.
I am not clear whether or not antidepressant mediation [sic] would result in significant improvement in his mood considering the perpetuating factors and the factors driving his mood symptoms.   This includes his feelings of humiliation, guilt and anger and shame having been removed from the ship and also being threatened with demotion from his position. As stated above, his identity as the Chief Engineer of a sailing vessel was a very significant part of his identify [sic] and the removal from the ship and the threatened demotion is a significant potential loss for him, and also has caused distress regarding the uncertainty surrounding his future work prospects.
As time has progressed there perpetuating factors which was ongoing as a result of the uncertainty surrounding his future work prospects, the uncertainty surrounding the outcome of his claim and the effects of not working on his self-esteem, self-confidence and sense of identity. [sic]
It is unlikely that antidepressant medications alone will result in a significant improvement to his psychological state considering his current stresses.   Therefore, whilst being on antidepressants may be indicated, I would not advise a significant increase in dosage or increase in number of medications as the side effects of the medication may in fact reduce his ability to function over time.
I do support him being seen by a Consultant Psychiatrist on a monthly basis for a further six months.
I would also support him being seen by a Clinical Psychologist with a view to dealing with some of his feelings of anger and loss, as well as humiliation and also helping him to increase his level of activity and developing a structured program to increase his level of activity around the house.
In my opinion Mr Bose should be engaged in various work rehabilitation or a plan for a return back to work.   It is a [sic] likely that a resolution of the uncertainty he is currently facing and/or a successful return back to work would result in a significant improvement in his psychological state.   Therefore I would recommend that he be involved in a work rehabilitation program.
9.      Your prognosis.
In my opinion the prognosis is essentially positive.    Mr Bose was not suffering from an underlying personality disorder.    He did not describe any significant problems in relation to his mood or anxiety symptoms early in his life.
At the present time Mr Bose is facing a number of uncertainties with regard to his future work prospects and the outcome of the disciplinary matter.   In my opinion these uncertainties will resolve over time and this will result in a resolution of his distress.
Some of the duration of his symptoms will depend on whether or not he was able to return back to his work in his previous capacity.   If Mr Bose was not able to return back to work in his previous capacity, then this will cause further distress for him, although he is likely to come to some adjustment to this in the longer term.
I do not believe his work has resulted in a significant psychological impairment in the longer term.
The prognosis is very difficult at the moment because of the fact that many of the issues related to his ability to return back to work remain unresolved.” (Exhibit R5)

Dr Cheng provided a supplementary report, dated 3 December 2012, to the respondent’s solicitors at their request, addressing the following questions:
“ …
1.What is the cause of any psychiatric condition suffered by Mr Bose?
In my opinion the psychiatric condition suffered by Mr Bose is a result of the disciplinary action and the removal from the ship. He appeared to be very distressed regarding this. The second cause appears to be in relation to the demotion from his position as the chief engineer. He felt that this was a significant blow after his 35 year career and was very stressful for him. There was the sense that this was a blow to his self esteem and he would find it difficult to return to a ship and not be the Chief Engineer.
The perpetuating factors at the present time related to the uncertainties surrounding the outcome of the claim and that uncertainty surrounding his future work prospects and this appeared to continue to cause stress.
Finally, in my opinion, there is a contribution to the fact that he was not working and the negative effects that this has had on his self esteem, self confidence and sense of identity.
I believe that Mr Bose is more susceptible to this as his identity as a chief engineer was the predominant source of his self esteem. Mr Bose stated he was unable to have children. He stated he had been recommended to the merchant navy over the past 35 years and had come to define his identity in terms of his employment and title. It is understandable therefore that when this is threatened this has resulted in significant distress and uncertainty for him.
2. Is Mr Bose suffering from a psychiatric/psychological injury?
I do believe that he was suffering from a psychiatric disorder at the present time as the severity of his mood symptoms would warrant a diagnosis of a Major Depressive Episode. Please refer to the main body of the report for the details.
3.If so, what is the psychiatric/psychological injury from which he was suffering?
Please refer to the answer to Question 2 in my original report.
4.In your view, can it be said with any medical certainty, that Mr Bose sustained a psychiatric/psychological injury all. [sic]
In this regard, we note:
a.He did not lodge a claim until 27^th June 2012, over a month after the onset of his condition; and
b. Even then, he did not submit any events in support of his claim.
Mr Bose stated that his general practitioner had determined that he was unwell prior to the meeting with his employers.
It would appear that he submitted a claim as the meeting did not go the way he wanted it to. He stated that he was distressed as a result of the move to demote him from the position of Chief Engineer to a position below this.
5.If he did sustain a psychiatric/psychological injury, would you agree that this condition has wholly arisen out of the events described in our main letter?
In my opinion I do agree that his condition has wholly arisen out of the events as described in your main letter.
In particular it would appear that the disciplinary action including the removal from the ship and subsequent to this, the demotion in his position has been the cause of his distress.
6.Alternatively, are there any underlying medical, emotional or other issues which may be causing anxiety or stress? If so, to what extent are those issues contributing to Mr Bose’s current condition?
Please see the answer to [sic] my original report.
He did not appear to have a pre-existing psychiatric condition.
7.If so, could the anxiety or his psychiatric/psychological condition have occurred due to natural progression of any pre-existing condition?
Please refer my [sic] original report.” (Exhibit R6)
Dr Cheng provided a further supplementary report, dated 13 February 2013, to the respondent’s solicitors as follows:
“ …
Please find a supplementary report which is based upon the information gathered during the original assessment, the collateral information that accompanied the original request, and the additional collateral information accompanied [sic] the request for a supplementary report dated 25^th of January 2013.
The additional collateral information included the following,
·      Medical records from Noranda Palms Medical Centre
·      Medical report Dr Soni Narula dated 31/10/2007
·      Medical report, Mr Peter Watson dated 23/11/2007
·      Letter, Psychology Health Care 29/1/2009
·      Medical Report, Dr Gary Jeffrey dated 29/5/2009
·      Psychological Health Care report dated 8/8/12
·Medical report, Dr Amit Banerjee dated 24/4/12, letter to GP (undated), 20/6/12, 23/8/12.
·        Various worker’s compensation progress medical certificates
I have the following comments arising from the collateral information.
The notes from the Noranda palms medical Centre seems to indicate that Mr Bose described feelings of stress, wanting to reduce his alcohol intake and mood disturbance. This appeared to predate his claim.
I note that a number of the consultations with his general practitioner was for psychological reasons. This would indicate that he has had significant psychological symptoms that was the primary reason for his presentation to his General Practitioner.
In particular on 21^st of February 2012 there is a notation that he was referred to Dr Bannerjee [sic] and reported ‘under stress depression’.
This is inconsistent with the information he presented to me on 3^rd of December 2012. During that interview he denied a prior history of psychological or psychiatric symptoms.
In the reports by Dr Bannerjee [sic] on 24 April 2012, Dr Banerjee reported that Mr Bose had problems that stemmed from a sense of inferiority from the time he was growing up in Calcutta. He was also advised to keep watch on his alcohol use.
This is inconsistent with the information he presented to me where he stated that he sought a consultation with Dr Bannerjee [sic] because he kept on taking work onshore with him. He did not relate any other psychological symptoms. He stated to me that he [sic] conclusion of the assessment was that he was quite committed to his work.
I noticed that on January 29, 2009 he had been referred to psychological health care for an assessment although he did not turn up to that appointment.
There is significant evidence that Mr Bose did have psychological symptoms with [sic] predated the incidents he described from 11 May 2012 and that he has previously sought or been advised to seek treatment.
Please note that a psychiatric diagnosis is largely reliant on the information presented. There are few other objective tests that can be performed, especially in the medico-legal environment.
Concern over the reliability of information presented raises concern regarding the reliability and the validity of the diagnosis and prognosis.
The additional collateral information does make it difficult for me to confirm he [sic] diagnosis of a Major Depressive episode it does make it difficult for me to rely on the symptoms that he has described. [sic] I note that on Mental State examination that [sic] there were no clear mental state findings that would support a Major Depressive episode. He was not distressed during the interview, there was no evidence of psychomotor retardation or agitation. His affect was reactive and there was no evidence of suicidal ideation.
I do have the confidence that he was experiencing distress because of the uncertainty surrounding his current situation which included the uncertainty surrounding his future work prospects and the dissatisfaction regarding the demotion of his position.
The additional collateral information does cause me to have the opinion, that Mr Bose did have pre-existing psychological symptomatology and also alcohol use which is likely to be at problematic levels, which is likely to have contributed to his current level of distress.
The additional distress is likely to have been caused by the uncertainty surrounding his future work prospects, the outcome of the claim and his dissatisfaction at being demoted in rank.
I am not able to make a diagnosis of a Major Depressive episode at the present time upon review of the additional collateral information.” (Exhibit R8)
In cross-examination Dr Cheng said that, having regard to the additional information provided to him by the respondent’s solicitors to which he referred in his abovementioned report of 13 February 2013, he was not as confident in his initial diagnosis of a Major Depressive Episode but he acknowledged that he had not excluded that diagnosis. Dr Cheng confirmed, furthermore, that (as stated in his second abovementioned report of 3 December 2012) the applicant’s removal from the ship on 30 May 2012 and his proposed demotion on 8 June 2012 were each a significant event causing him to be distressed.
In response to a question from the Tribunal Dr Cheng acknowledged that the applicant’s removal from the ship on 30 May 2012 would itself have been enough to make him distressed.
The Evidence of the Lay Witnesses
Eric Duck
Mr Duck confirmed that he had signed a witness statement, dated 25 January 2013, for the purpose of these proceedings. He also confirmed that, subject to an amendment which he made in his oral evidence, the contents of that statement are true and correct to the best of his knowledge and belief. That statement (as amended) is as follows:
“ …
Personal Details
1.I am the technical manager for Swire Pacific and commenced my career as an engineering cadet in 1988. Between 2002 and 2008 I was employed at sea with Swires International as a chief engineer.
2.In 2007 I worked briefly for EMAS Offshore.
3.In 2008 I returned to the employ of Swire Pacific in the Fremantle office as a technical manager. I would sometimes work on vessels.
4.The role of a technical manager is to manage the technical affairs of vessels including the maintenance of vessels; it’s [sic] docking; liaising with chief engineers on board regarding engineering functions on the vessels and liaising with the masters and all officers to ensure the smooth running of the fleet.
The Applicant’s details
5.The applicant, David Bose, commenced employment with Swire Pacific in 1993 as a chief engineer.
6.The applicant was a workaholic and was very good at his job but would not take direction or authority very well.
The applicant’s previous conduct
7.I have experienced difficulties with the applicant being obstructive on previous occasions.
8.I exhibit to this statement, marked ‘ED 1’, copies of some emails with the applicant clearly setting out his obstructive attitude and refusal to accept authority and take instruction, and summarise them as follows:
8.127 March 2011 – email from applicant to Eric Duck – ‘I do not accept that there was anything wrong with the vessel and if the company chooses to employ boys to do a man's job then it is not my problem. I challenge any electrician in this company to show me how things work or to fix what I cannot’;
8.227 March 2011 – email from applicant to Eric Duck – ‘I have listed [sic] to your instructions for a few times and have watched the level of engineering that you discuss. Please do not do it again. I have 34 years' experience. What do you have? Take it up with anyone if you have a problem with it’;
8.328 March 2011 - emails between Eric Duck and the applicant - the applicant apologises for causing offence in his earlier emails as he is going through ‘a bad patch at home with his wife's health and under a lot of stress’;
8.47 July 2011 - email from applicant to Eric Duck - the applicant was particularly aggressive and abusive and refusing to follow instructions. In particular, he made comments such as ‘The level of arrogance based on ignorance displayed by yourself Peter Franklin and Ian McCowatt is not going to be unexposed’ …. ‘You still try to portray to me that you were qualified to 'look at' my proposal for modification. You will need to demonstrate an understanding of the issues on the vessels before I will ever listen to anything you say in the future. If you ever again use the term ‘instruction’ as opposed to ‘request’ in any communication to me anything you say will be ignored’;
8.521 July 2011 - email from applicant to Eric Duck - Eric Duck informed the applicant that he was confident of the company's boilermaker's capabilities to do the job and the applicant sent a condescending email suggesting that Eric Duck should tick appropriate boxes with regard to his knowledge;
8.627 July 2011 - email to Andrew Lynch and cc'd to Swire Pacific - the applicant stated ‘Where do people like Eric get their confidence? Does the company have a record of who did what and when. Has Eric done something in the company that we should know about’;
8.724 August 2011 – emails between the applicant, the purchasing assistant and Callum Dean - the applicant disputed his requirement to seek approval for the purchase of equipment and responded by stating ‘I politely decline to ask for permission to get minor things from the agent to get the job done. If I am expected to do that, we will not undertake these sorts of jobs in the future. It is not what we are paid to do’. When advised by Callum that in accordance with local purchasing instructions he needed to seek approval, he tried to place the blame with the purchasing assistant and made unkind comments;
8.821 December 2011 – email from applicant to Eric Duck - the applicant accused a first engineer of being ‘totally incompetent’, ‘frail’ and ‘completely out of his league’;
8.94 January 2012 – email from applicant to Mal Hearnden – the applicant made further derogatory comments regarding two first engineers;
8.1016 February 2012 - email from applicant to Mal Hearnden - he made inappropriate comments regarding MAN service engineers.
9.I had a meeting with the applicant in September 2011 regarding his obstructive behaviour and I explained to him that his inappropriate communications with the technical department and other staff were not acceptable and he must cease with immediate effect in order to avoid formal proceedings. The applicant agreed at the meeting that he would discontinue the inappropriate communications. His conduct continued.
Incident between 11 & 14 May 2012
10.On 11 May 2012, I instructed the applicant in relation to a technical issue on the vessel. There had been a problem with an engine component that was leaking and it had been taken off the vessel and sent to MAN in Sydney for repair.
11.There are two engines on the vessel and nine components on each engine and a spare is always carried. When there are faults, one is sent away for repair. In this instance spare exhaust valves were in stock on the ship and the applicant was instructed to fit the part to the overhauled component when it arrived back on the vessel. It was to be returned from MAN in an overhauled condition but without the exhaust valves.
12.There were two options:
12.1to replace the exhaust valves with the spares on the vessel; or
12.2to get a cylinder head off another vessel, namely the ‘Pacific Vulcan’.
13.I did not want to proceed with the second option as it would leave the ‘Pacific Vulcan’ without a spare cylinder head. I was of the view that since the vessel was soon to be heading back to Singapore for full engine overhaul, the best option would be to fit the spare valves to the overhauled component and then fit the component to the ships [sic] main engine. I discussed this option with a manager at MAN (Engine Maker) and this course of action was considered best. My decision on what was to be done was thus made.
14.The issue raised by the applicant was that to install the exhaust valves they would need to be ground and specific specialised equipment was required in order to do so. However, that was not the case as the new parts came already ground and ready to use. The applicant clearly did not know this fact. Some checks were to be carried out as suggested by MAN which turned out to be something that the applicant considered an insult to his intelligence.
15.I exhibit hereto marked ‘ED 2’ a sequence of emails between myself and the applicant dated 11 May 2012 (the sequence of events are correct but the times shown are inaccurate). I summarise the sequence of events as follows:
15.1I informed the applicant that I had found the spare cylinder head at MAN Sydney (which had been with MAN for some weeks) but delivery back to the vessel had been held up because they did not have new exhaust valves in stock. I had arranged for it to be picked up and sent on the first plane to Melbourne. I said to the applicant that I was hoping there were spare exhaust valves on board that the applicant could use and asked him to please let me know ASAP if the valves were on board;
15.2the applicant replied stating ‘There is really no point at this late stage getting the head back like this. I think it is best we send them our exhaust valves and they can complete the job’. He stated that ‘completing the heads o/b is not an option for me. I repeat please do not send the head back o/b unless completely overhauled by someone in Melbourne if you so choose’;
15.3I informed the applicant that the cylinder head was already on its way by air freight and that there would be no grinding required and once again instructed him to please install the exhaust valves into the head once it arrived;
15.4the applicant responded stating ‘Please stop giving me instructions on how to overhaul a head. That is insulting. I have 36 years of sea experience after 5 years of tertiary level of marine engineering and I have overhauled more heads than I care to remember and probably more heads than most in this fleet. I will not be overhauling the head o/b. VUL will give us a head which we will install and that is all I am going to do’;
15.5I then informed the applicant that ‘the head had already been overhauled. It was held up at MAN pending arrival of the new valves. The requirement is therefore not to overhaul on-board. All that is required to install the new valves into the head which has new seats fitted already’;
15.6the applicant then responded by stating ‘I am repeating this sort of job needs to be done properly. We will take the head from the VUL and get the engine back on line correctly. I will not do things by halves. I will either do it correctly or not at all. Even new valve seats and valves need to be lapped …. we do not have the correct gear …. in conclusion please have the head overhauled and ready to fit before it comes o/b’;
15.7I then sent a further email to the applicant advising him once again of the instructions to be undertaken and that I expected it to be done;
15.8the applicant then responded stating ‘As a matter of principle I must politely decline to comply with your instructions if I am able to get the head off the VUL and the engine is running. Someone else will have to do the head when it arrives’.
16.I then telephoned the applicant with the hope of resolving the matter and gave him the direct instruction to carry out the task. Among other things, he said ‘I am not going to do it’. I then replied that I would have to remove him from the vessel and he said ‘Then take me off, take me off’, thus acknowledging the consequences of his refusal to carry out my instructions.
17.On 14 May 2012, I emailed Mal Hearnden advising him that the applicant had communicated his intention not to comply with my instructions. I exhibit hereto a copy of the email marked ‘ED 3’. I believed that the only course of action was to relieve him ASAP and have him attend the office in order to consider the appropriate course of disciplinary action to be taken. I informed Mr Hearnden that the applicant is consistently argumentative on almost any subject relating to technical mattes to the point that he is obstructive and has been sending a number of inappropriate emails.
18.Mr Hearnden then rang the vessel's master John Silberberg and explained that there had been a long running dispute between myself and the applicant and that the applicant was to be removed from the vessel at the next port of call for refusal to carry out a lawful order.
Sequence of events following the incident
19.From 14 May to 30 May 2012 the applicant continued with his job on the vessel. Simone Osten organised the relevant flights for the applicant to leave the vessel and arrangements were put in hand for a new chief engineer to join the vessel.
20.On 24 May 2012, I forwarded an email to Mal Hearnden requesting that there be a meeting with the applicant and his representatives and set out summary of the sequence of events that had occurred in relation to the incident. I exhibit hereto marked ‘ED 4’ the email dated 24 May 2012 and its attachments.
21.The applicant left the vessel when it arrived at Port Melbourne on 30 May 2012. His swing was due to finish on 7 June 2012.
22.I enclose hereto marked ‘ED 5’ a chain of emails with the applicant arranging a meeting with him which took place on 7 June 2012.
23.At the meeting on 7 June 2012, the applicant attended the meeting with myself, Malcolm Hearnden, Simone Osten and Phil Olsen. The applicant's refusal, on more than one occasion, to obey instructions from myself was discussed. In addition, the company also expressed its displeasure at the rude and inappropriate manner in which the applicant had addressed me in numerous emails over the previous months and other technical department staff. The decision to remove him from the vessel at the first port call was as a result of his unequivocal refusal to carry out my instructions.
24.After that meeting the following proposals were presented by Malcolm Hearnden to the applicant and Phil Olsen:
24.1the applicant should furnish myself with a letter of apology regarding his refusal to obey instructions and also his inappropriate manner of communication and undertake in writing to carry out my instructions in future and to cease inappropriate communications immediately;
24.2he should sail as a first engineer (and be paid as such) for a minimum period of three swings so that he can observe how other chief engineers communicate with office staff whilst being free of the responsibility to communicate regularly with the technical or other departments;
24.3if the applicant wishes, to attend an anger management course, paid for by the company, during his leave in order to assist him in his interaction with others;
24.4in addition, the company would issue the applicant with a first written warning that should he fail to modify his behaviour over the next three swings, the company would be left with no option other than to reluctantly terminate his employment.
25.The applicant was provided with this information by way of an email dated 8 June 2012. Copy exhibited hereto marked ‘ED 6’.
26.The applicant did not respond to the proposal put at the meeting as he stated he was unwell and had been certified unfit for work and would consider it when he was well.
27.On 6 July 2012, the applicant sent an email to David Marron, the technical director, copy exhibited hereto marked ‘ED 7’, stating that he was forcibly removed from the vessel before the end of his swing despite saying in writing to myself before his removal was instigated that he would do what was required with the spare cylinder head. The applicant did not agree to do what I instructed. The applicant stated that he could prove that the instructions I gave were flawed in engineering principles and practice. I do not accept this contention. However in any event, the issue was not that of engineering practices and theories but the applicant's refusal to abide by a lawful instruction given by his manager.
28.David Marron responded to the applicant informing him that ‘As I have pointed out previously, instructions regulations and guidelines, whilst open to challenge, must be followed when finally instructed and therefore I confirm support of the local management's decision and actions’.
29.On 18 July 2012, Malcolm Hearnden sent an email to the applicant, (see exhibit ‘ED 7’), regarding the proposals and in particular commented that the applicant had stated that he would respond once he had sorted his health problems. In light of the fact that he had been canvassing the issues with David Marron, his further response to the issues was requested but not received.
30.In my view the issue in this matter is not the rights and wrongs of engineering theory or practice but the right for [sic] a technical manager to issue instructions to a chief engineer and for those instructions to be followed. The applicant refused to follow my instructions, despite repeated requests, and he was aware of the consequences. Furthermore, the applicant has a history of refusing to follow instructions and being obstructive and communicating with staff in an inappropriate manner. I had discussed the applicant’s inappropriate communications with him previously.” (Exhibit R2)

Mr Duck also confirmed that he had signed a supplementary statement, dated 29 January 2013, as follows:
“ …
1.I make this supplemental statement in addition to my statement dated 25 January 2013.
2.I confirm, as stated in my statement dated 25 January 2013, that I spoke with a manager at MAN, on or about 11 May 2012, about the best course of action to be undertaken in relation to the issues on board the vessel.
3.I spoke with Mr Robert Wackett, General Manager at MAN in May 2012, who agreed with my proposed course of action.
4.Mr Wackett has since retired and I exhibit hereto marked ‘ED 1' a copy of my email with Mr Jeffrey Moloney, the current General Manager at MAN (and Technical Services Manager at the time of my conversation with Mr Wackett), dated 25 January 2013, confirming that he agreed with the course of action.
5.I do strongly believe that the instruction I gave to the applicant was reasonable and in line with what MAN, the engine makers, considered to be reasonable action in the circumstances.
6.I confirm that the contents of this statement are true to the best of my knowledge and belief”. (Exhibit R3)
In cross-examination Mr Duck was referred to para 9 of his abovementioned statement of 25 January 2013. He confirmed that, at the meeting in September 2011, he had conveyed to the applicant the possibility of “formal disciplinary proceedings” being instituted if he did not cease making “inappropriate communications”. He was, however, unable to recall the details of any discussion between himself and the applicant at that meeting regarding possible future disciplinary action. He described that meeting as “a good meeting” and added that he thought that he and the applicant had “reached consensus” and he was “happy to regard the matter as closed”.
Mr Duck was referred to the instruction which he gave to the applicant on 11 May 2012 to install exhaust valves in the overhauled cylinder head (see paras 10–16 of his abovementioned statement of 25 January 2013). Asked from where he got the authority to demand that a Chief Engineer on board a vessel follow his instruction regarding such a technical matter, Mr Duck said that “it was part of [his] job description” and that it was also part of the job description of the Chief Engineer. He said that the relevant documentation was in the respondent’s “safety management system”. He referred to the following part of the job description of the Technical Manager at para 3.16 of the respondent’s Safety Management Manual:
“ The technical Manager is the Company’s technical focal point within a particular Outport’s area. His responsibilities and authorities with respect to safety and quality are:
·technical management of ships under his Outport’s control including repairs, dry-docking & operation to ensure compliance with statutory regulations and class rules is maintained;”. (Exhibit R1)
He also referred generally to “the chain of command’ in which the Technical Manager reports to the Outport General Manager and the Chief Engineer reports to the Technical Manager. He rejected the proposition that he had no authority to direct the applicant (the Chief Engineer), against his will, to fit the two exhaust valves to the cylinder head on the vessel.
Mr Duck acknowledged that, before May 2012, there had been no occasion on which the applicant had refused to carry out any instruction given by him. He added, however, that the applicant had previously indicated his intention not to carry out his instructions.
Mr Duck said that the disciplinary process against the applicant was begun by having him replaced as Chief Engineer and having him attend a meeting at the respondent’s office, following which the disciplinary action to be taken against him was that set out in para 24 of his abovementioned statement of 25 January 2013.
Mr Duck acknowledged that the applicant would have preferred to remain as Chief Engineer on the Pacific Valkyrie.
In response to a question from the Tribunal, Mr Duck confirmed that, prior to his telephone conversation with the applicant on 14 May 2012 in which he informed the applicant that he was to be removed from the Pacific Valkyrie and replaced as Chief Engineer, he had not at any time communicated to the applicant the possibility of his being removed from the vessel and replaced as Chief Engineer.
Malcolm Hearnden
Mr Hearnden confirmed that he had signed a witness statement, dated 24 January 2013, for the purpose of these proceedings, and that, subject to an amendment which he made in his oral evidence, its contents are true and correct. That statement (as amended) is as follows:
“ …
Personal Details
1.I am the manager for Swire Pacific and am based in the Fremantle office.
The Applicant’s details
2.The applicant, David Bose, commenced employment with Swire Pacific in 1993 as a chief engineer.
3.The applicant was very good at his job but it was known that he would not take direction or authority very well.
The applicant’s previous conduct
4.I have experienced difficulties with the applicant being obstructive on previous occasions and am aware of the difficulties Eric Duck, the technical manager and other staff have experienced with the applicant.
Incident between 11 & 14 May 2012
5.On 14 May 2012, I received an email from Eric Duck advising me that the applicant had communicated his intention not to comply with his instructions. I exhibit hereto a copy of the email marked ‘MH 1’. Mr Duck believed that the only course of action was to relieve him ASAP and have him attend the office in order to consider the appropriate course of disciplinary action to be taken. Mr Duck stated that the applicant was consistently argumentative on almost any subject relating to technical matters to the point that he was obstructive and I have had sight of a number of inappropriate emails.
6.I then rang the vessel's master John Silberberg and explained that there had been a long running dispute between Mr Duck and the applicant and that the applicant was to be removed from the vessel at the next port of call for refusal to carry out a lawful order.
Sequence of events following the incident
7.From 14 May to 30 May 2012 the applicant continued with his job on the vessel. Simone Osten organised the relevant flights for the applicant to leave the vessel and arrangements were put in hand for a new chief engineer to join the vessel;
8.On 24 May 2012, I received an email from Eric Duck requesting that there be a meeting with the applicant and his representatives and he set out a summary of the sequence of events that had occurred in relation to the incident commencing on 11 May 2012. I exhibit hereto marked ‘MH 2’ the email dated 24 May 2012 and its attachments.
9.The applicant left the vessel when it arrived at Port Melbourne on 30 May 2012. His swing was due to finish on 7 June 2012;
10.At the meeting on 7 June 2012, the applicant attended the meeting with myself, Eric Duck, Simone Osten and Phil Olsen. The applicant's persistent refusal to obey instructions from Eric Duck, despite several requests, was discussed. In addition, the company also expressed its displeasure at the rude and inappropriate manner in which the applicant had addressed Eric Duck and other technical department staff in numerous emails over the previous months. The decision to remove him from the vessel at the first port call was as a result of his unequivocal refusal to carry out Eric Duck’s instructions.
11.The proposals put the day after the meeting were as follows:
11.1the applicant should furnish Eric Duck with a letter of apology regarding his refusal to obey instructions and also his inappropriate manner of communication and undertake in writing to carry out his instructions in future and to cease inappropriate communications immediately;
11.2he should sail as a first engineer (and be paid as such) for a minimum period of three swings so that he can observe how other chief engineers communicate with office staff whilst being free of the responsibility to communicate regularly with the technical or other departments;
11.3if the applicant wishes, to attend an anger management course, paid for by the company, during his leave in order to assist him in his interaction with others;
11.4In addition, the company would issue the applicant with a first written warning that should he fail to modify his behaviour over the next three swings, the company would be left with no option other than to reluctantly terminate his employment.
12.The applicant was provided with this information by way of an email dated 8 June 2012. Copy exhibited hereto marked ‘MH 3’.
13.The applicant did not respond to the proposal that was put to him at the meeting as he told us that he was unwell and had been certified unfit for work and would consider it when he was well.
14.On 18 July 2012, I sent an email to the applicant, copy exhibited hereto marked ‘MH 4’, regarding the proposals and in particular I commented that he had stated that he would respond to the proposals once he had sorted his health problems. In light of the fact that he had been canvassing the issues with David Marron, technical director, his further response to the issues was requested but not received.
15.The applicant refused on numerous occasions to follow Eric Duck’s instructions and he was aware of the consequences. Furthermore, the applicant has a history of refusing to follow instructions and being obstructive and communicating with staff in an inappropriate manner.” (Exhibit R4)
In cross-examination Mr Hearnden was referred to paras 5 and 6 of his abovementioned statement. He said that he “would probably” have made the telephone call to Mr Silberberg, Master of the Pacific Valkyrie, referred to in para 6, in the early afternoon of 14 May 2012 and he agreed that he had made that call with the intention of having the applicant removed from that vessel. He confirmed that his decision to remove the applicant from the vessel was based on the information about the applicant which had been reported to him by Mr Duck.
In response to questions from the Tribunal Mr Hearnden confirmed that it was his decision to remove the applicant from the vessel and that he had directed Mr Silberberg to have him removed at the next port of call. Asked whether he considered that it might have been appropriate for him to have contacted the applicant in order to hear his side of the story before having him removed from the vessel, Mr Hearnden responded:
“No. I think it’s my primary responsibility to support my managers and if you interfere with his right to manage he might as well not be there. There’s a fundamental right to manage, to issue a lawful order …”.
He added that it was his understanding that the “lawful order” issued by Mr Duck to the applicant was issued after much debate between them and that it was met with a refusal by the applicant to obey that order. He said that he understood the email from Mr Duck on 14 May 2012 (referred to in para 5 of his statement) to be a request from Mr Duck for the applicant to be removed forthwith from the vessel and that, without any further consultation, he took action to have the applicant removed on the basis of Mr Duck’s email.
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ 3     General definitions
In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a)     any ailment suffered by an employee; or
(b)     the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function.
…
injury means:
(a)     a disease; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
“ 6     Injuries suffered by employees
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under this Act.”
“8     Incapacity for work
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)        an incapacity to engage in any work; or
(b)an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.”
“ 10   Provisions relating to diseases
…
(4)   If:
(a)an employee suffers an injury (other than one resulting in a hearing impairment); and
(b)the injury is a disease or an aggravation of a disease;
the employee is taken, for the purposes of this Act, to have suffered the injury on the day when:
(c)the employee first sought medical treatment for the disease or   aggravation; or
(d)the disease or aggravation resulted in the death of the employee       or first resulted in his or her impairment or incapacity for work;
whichever happens first.
…”
“ 26   Compensation for injuries
(1)   If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
…”
The Issues
The critical issues for the Tribunal’s determination in these proceedings are as follows:
·whether the applicant has suffered a “disease” (as defined in s 3 of the SRC Act), being a mental ailment that was “contributed to in a material degree by” his employment by the respondent; and, if so
·whether that “disease” was suffered by the applicant “as a result of reasonable disciplinary action taken against” him, within the meaning of the definition of “injury” in s 3 of the SRC Act.
Analysis and Findings
Has the applicant suffered a “disease” as defined in s 3 of the SRC Act?
The medical evidence before the Tribunal supports the proposition that the applicant has suffered a mental ailment. That mental ailment was described by Dr Mustapha as “severe depression” in the initial workers’ compensation medical certificate issued by him on 5 June 2012, and was diagnosed by Dr Banerjee as “Major Depressive Disorder” in his report of 4 December 2012 and in his oral evidence. Although Dr Cheng made a diagnosis of “Major Depressive Episode” in his reports of 3 December 2012, in his report of 13 February 2013 he stated that he was “not able to make a diagnosis of Major Depressive episode at the present time …” In his oral evidence, however, Dr Cheng said that he had not excluded that diagnosis and he acknowledged that each of the employment incidents on 30 May 2012 and 8 June 2012 had caused the applicant to be “distressed”.
The Tribunal attaches the greatest weight to the evidence of Dr Banerjee, the applicant’s treating psychiatrist, who has been seeing him since 24 April 2012. The Tribunal also attaches great weight to the evidence of Dr Mustapha who has been the applicant’s treating general practitioner since November 2001. The Tribunal attaches less weight to the evidence of Dr Cheng, Consultant Psychiatrist, who did not examine the applicant until 3 December 2012 and has only seen him on that occasion.
On the basis of the medical evidence before it, the Tribunal finds that the applicant has suffered a mental ailment. The Tribunal accepts Dr Banerjee’s evidence that the appropriate diagnosis of the mental ailment suffered by the applicant is Major Depressive Disorder.
The medical evidence before the Tribunal also supports the proposition that the applicant’s Major Depressive Disorder was “contributed to in a material degree by” (within the meaning of the definition of “disease” in s 3 of the SRC Act) his employment by the respondent. Dr Banerjee so opined in his report of 4 December 2012 (see para (g) of that report). Likewise, Dr Mustapha issued a Workers’ Compensation FIRST Medical Certificate on 5 June 2012 in respect of “severe depression” which, having regard to the applicant’s description to him of the circumstances in which that condition arose, he accepted had been caused by a “disagreement with the technical manager who asked him to leave the ship” and, in his report of 15 November 2012, he opined that the applicant was “suffering from anxiety depression exacerbation by events at work”. Dr Cheng, in his supplementary report of 3 December 2012, unequivocally opined that the applicant’s mental ailment (which he then diagnosed as Major Depressive Episode) had been caused primarily by his “removal from the ship” and, secondly, by his “demotion from his position as the Chief Engineer”. Although, in his report of 13 February 2013, Dr Cheng resiled somewhat from his initial diagnosis of Major Depressive Episode, he nevertheless adhered to the opinion that the abovementioned employment incidents had each caused the applicant to be “distressed”.
On the basis of the medical evidence before it, the Tribunal finds that the applicant’s Major Depressive Disorder was largely, if not wholly, caused by his employment by the respondent. Accordingly, the Tribunal is satisfied, and finds, that the applicant’s Major Depressive Disorder was “contributed to in a material degree by” (within the meaning of the definition of “disease” in s 3 of the SRC Act) his employment by the respondent.
The Tribunal concludes, therefore, that the applicant has suffered a “disease” as defined in s 3 of the SRC Act.
When did the applicant first suffer Major Depressive Disorder?
Section 10(4) of the SRC Act relevantly provides that an employee is “taken, for the purposes of this Act, to have suffered [an] injury” (being a “disease”) on the day when:
·the employee first sought medical treatment for the disease; or
·the disease first resulted in the employee’s impairment or incapacity for work;
whichever happens first.
It is common ground that the applicant first sought medical treatment for the relevant “disease” on 5 June 2012 when he consulted Dr Mustapha, and on that date Dr Mustapha issued a Workers’ Compensation FIRST Medical Certificate in which he certified that the applicant was totally unfit for work from 5 June 2012. The Tribunal notes, however, that Dr Banerjee, in his report of 15 January 2013, stated:
“ … I can confirm that Mr Bose has not been fit to work as a result of his psychiatric illness since his removal from the ship he was working on. I understand that this happened on 30 May 2012.”
It appears, furthermore, from the applicant’s own evidence that he was suffering “impairment” (as broadly defined in s 3 of the SRC Act) from the time of his removal from the Pacific Valkyrie on 30 May 2012.
There is, therefore, evidence before the Tribunal on the basis of which it could properly find that the applicant first suffered Major Depressive Disorder (being the relevant “disease”) on or shortly after 30 May 2012, or on 5 June 2012. In the Tribunal’s opinion, however, the earliest date on which it can definitively find, on the basis of the evidence before it, that the applicant suffered Major Depressive Disorder is 5 June 2012, being the date on which he first sought medical treatment for that disease and the date from which he was medically certified as unfit for work as a result of that disease.

The Tribunal notes that, according to the medical evidence before it, the applicant had, prior to 30 May 2012 – namely in 2005, 2006, 2007, 2009 and February 2012 – consulted Dr Mustapha about stress and/or depression and that Dr Mustapha first referred him to Dr Banerjee in February 2012. The Tribunal, however, also notes:
·Dr Mustapha’s evidence that, prior to seeing the applicant on 5 June 2012 and prescribing anti-depressant medication for him on that occasion, he had last prescribed anti-depressant medication for him on 27 October 2009;
·Dr Banerjee’s report of 24 April 2012 in which he states that he did not prescribe any medication for the applicant on that date (being his first consultation with the applicant), and Dr Banerjee’s next report, dated 20 June 2012, in which he refers to a reported increase in the applicant’s depressive symptomatology and suggests an increase in his anti-depressant medication.
On the basis of the abovementioned medical evidence, the Tribunal is not satisfied that the applicant was suffering from severe depression or major depression in the period from February to May 2012.
Accordingly, pursuant to s 10(4) of the SRC Act, the Tribunal concludes that the applicant is to be taken, for the purposes of that Act, to have suffered a “disease” (as defined in s 3 of the SRC Act), namely, Major Depressive Disorder, on 5 June 2012.
Was the “disease”, namely, Major Depressive Disorder, suffered by the applicant on 5 June 2012, suffered by him “as a result of reasonable disciplinary action taken against [him]” within the meaning of the definition of “injury” in s 3 of the SRC Act?
In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 the Federal Court of Australia (Cooper J), referring to the definition of “injury” in s 4(1) of the Commonwealth Employees’ Rehabilitation and Compensation Act1988 (Cth) (whose terms are relevantly similar to those of the definition of “injury” in s 3 of the SRC Act), said (at 83–84):
“ In the context of the definition of ‘injury’ in s 4(1) of the Act, the phrase ‘disciplinary action’ means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. Additionally, the action must be directed against a particular employee and does not include an action taken by the Commonwealth as part of the general maintenance of discipline over employees of which the particular employee is but one. Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of ‘disciplinary action’ in the Act.”
In the present case the relevant “action” which was taken against the applicant, prior to his suffering Major Depressive Disorder on 5 June 2012, comprised the decision of Mr Hearnden on 14 May 2012 that the applicant was to be removed from the Pacific Valkyrie at the next port of call and his communication of that decision to the vessel’s Master, Mr Silberberg, on that date, resulting in the applicant’s having to leave the Pacific Valkyrie when it docked at Port Melbourne on 30 May 2012.
On the basis of the evidence of Mr Duck and Mr Hearnden, the Tribunal finds that the abovementioned action was taken against the applicant because of his perceived refusal to carry out an instruction given to him by Mr Duck on 11 May 2012, namely, an instruction to install exhaust valves in the overhauled cylinder head on the Pacific Valkyrie. Plainly, in the Tribunal’s opinion, that action, which was taken by Mr Hearnden at Mr Duck’s request, was action involving the imposition of a sanction on the applicant because of his perceived insubordination as an employee in refusing to act in accordance with the instruction of Mr Duck, the Technical Manager, to whom he was responsible.
Accordingly, the Tribunal finds that the decision by Mr Hearnden on 14 May 2012 that the applicant was to be removed from the Pacific Valkyrie at the next port of call, resulting in the applicant’s having to leave that vessel on 30 May 2012, constituted “disciplinary action taken against” the applicant, within the meaning of the definition of “injury” in s 3 of the SRC Act.
The Tribunal also finds, on the basis of the applicant’s evidence and the medical evidence before it, that the abovementioned disciplinary action contributed significantly to, if not wholly caused, the Major Depressive Disorder suffered by the applicant on 5 June 2012. The Tribunal finds, therefore, that the Major Depressive Disorder suffered by the applicant on 5 June 2012 was suffered by him “as a result of” the abovementioned disciplinary action, within the meaning of the definition of “injury” in s 3 of the SRC Act.
The final – and, ultimately, decisive – issue for the Tribunal’s determination is whether the abovementioned disciplinary action was “reasonable”, within the meaning of the definition of “injury” in s 3 of the SRC Act.
The case presented by the parties at the hearing focussed largely on the reasonableness or unreasonableness of Mr Duck’s action in giving the relevant instruction to the applicant and the applicant’s response to that instruction. Relatively little attention was given to the reasonableness or unreasonableness of Mr Hearnden’s action in deciding that the applicant was to be removed from the Pacific Valkyrie. It will be apparent from the foregoing analysis, however, that it is the reasonableness or unreasonableness of the latter action, rather than the reasonableness or unreasonableness of the actions of Mr Duck and the applicant, that is the critical issue.
Perhaps because of the parties’ focus on the actions of Mr Duck and the applicant rather than on the action of Mr Hearnden, the parties tendered in evidence, and referred extensively to, documentation of the respondent (namely, extracts from the respondent’s Safety Management Manual) regarding the job description, responsibilities and duties of Mr Duck in his capacity as Technical Manager and of the applicant in his capacity as Chief Engineer, but not official documentation regarding the responsibilities and authorities of Mr Hearnden, in his capacity as General Manager, in relation to employee disciplinary matters. Nor did either party tender in evidence any policies and procedures document of the respondent dealing with employee disciplinary matters or the relevant maritime award or enterprise agreement or similar document covering the applicant’s employment by the respondent and containing provisions dealing with employee disciplinary matters.
The applicant submitted that the disciplinary action involved in his removal from the Pacific Valkyrie was not “reasonable”, within the meaning of the definition of “injury” in s 3 of the SRC Act, because he was denied procedural fairness in the taking of that action against him. The respondent submitted that the applicant had been informed by Mr Duck that he was to be removed from the position of Chief Engineer of the vessel because of his “continued refusal to follow [Mr Duck’s] instructions” (see Exhibit A3), and that his removal did not involve a denial of procedural fairness.
The Tribunal accepts the applicant’s submission for the following reasons.
The decision by Mr Hearnden that the applicant be removed from the Pacific Valkyrie and replaced as the Chief Engineer on that vessel was unquestionably a decision which adversely affected the applicant’s rights or interests, and, subject to an unequivocal provision to the contrary (and none was suggested by the respondent), that decision was required to be taken in accordance with the requirements of procedural fairness.
Although Mr Duck, when notifying the applicant by email sent at 11.19 pm on 14 May 2012 that he was to be removed from the position of Chief Engineer on the Pacific Valkyrie, indicated that this action was to be taken because of his “continued refusal to follow [Mr Duck’s] instructions”, he had already, in the morning of 14 May 2012, requested Mr Hearnden to take that action, and Mr Hearnden had already done so by telephoning Mr Silberberg, Master of the Pacific Valkyrie, in the early afternoon of 14 May 2012 and informing him that the applicant was to be removed from the vessel at the next port of call.
It was Mr Hearnden’s own evidence that he made the decision to remove the applicant from the Pacific Valkyrie on 14 May 2012 after receiving Mr Duck’s email, in the morning of 14 May 2012, requesting him to do so and that that decision was based on the information about the applicant which had been reported to him by Mr Duck in that email. He also confirmed that he had not considered it appropriate to contact the applicant in order to hear his side before making that decision because he regarded it as his “primary responsibility to support” Mr Duck in this matter (see paragraph 46 above).
Although the wording of Mr Duck’s abovementioned email – namely, “Your continued refusal to follow my instructions have left me with no option other than to remove you from the position of Chief Engineer of VAK” – appears to indicate that it was he who was deciding to remove the applicant and (in other parts of that email) was requesting Mr Hearnden to implement that decision, the Tribunal accepts Mr Hearnden’s evidence that it was he, as General Manager, who had the authority to make such a decision and that it was ultimately his decision to remove the applicant from the vessel and replace him as the Chief Engineer. Neither party disputed Mr Hearnden’s evidence to that effect.
Although Mr Hearnden clearly regarded it as reasonable, in the circumstances, for Mr Duck to request him to have the applicant removed from the vessel and replaced as the Chief Engineer, it was nevertheless incumbent upon him, as the person with the authority to take that action against the applicant, to give the applicant a reasonable opportunity to be heard in relation to Mr Duck’s request before deciding whether to take that action. Instead, Mr Hearnden forthwith acceded to Mr Duck’s request and unilaterally took that action against the applicant without any prior consultation with him regarding that request.
Having regard to the evidence of Mr Duck and Mr Hearnden, the Tribunal is satisfied that the decision by Mr Hearnden on 14 May 2012 to remove the applicant from the Pacific Valkyrie and replace him as Chief Engineer on that vessel was made without affording to the applicant any prior opportunity to be heard in relation to that matter. The Tribunal is also satisfied, on the basis of Mr Duck’s evidence, that, at no time prior to Mr Hearnden’s abovementioned decision, had he (Mr Duck) communicated to the applicant the possibility of his being removed from the Pacific Valkyrie and replaced as Chief Engineer. It appears, furthermore, from Mr Hearnden’s own evidence (see paragraph 46 above) that he did not approach the taking of the abovementioned decision on 14 May 2012 with an open mind but, instead, did so with a closed mind which was not open to persuasion by the applicant and thereby displayed actual bias against the applicant in the making of that decision.
Having regard to the evidence and the considerations referred to in paragraphs 70–75 above, the Tribunal concludes that, in making his decision on 14 May 2012 that the applicant be removed from the Pacific Valkyrie and replaced as Chief Engineer on that vessel, Mr Hearnden denied procedural fairness to the applicant, and that that decision was, accordingly, not made in a fair, reasonable and lawful manner.
The Tribunal determines, therefore, that Mr Hearnden’s abovementioned decision of 14 May 2012, and the subsequent removal of the applicant from the Pacific Valkyrie on 30 May 2012 in accordance with that decision, did not constitute “reasonable disciplinary action”, within the meaning of the definition of “injury” in s 3 of the SRC Act.
It follows that the Major Depressive Disorder suffered by the applicant on 5 June 2012 was not suffered by him “as a result of reasonable disciplinary action taken against [him]”, within the meaning of the definition of “injury” in s 3 of the SRC Act, and the Tribunal so finds.
Conclusion
The Tribunal concludes, therefore, that the Major Depressive Disorder, suffered by the applicant on 5 June 2012, is an “injury” as defined in s 3 of the SRC Act.
There can be no dispute, having regard to the medical evidence in this matter, that the applicant’s Major Depressive Disorder, suffered on 5 June 2012, has resulted in “incapacity for work”, as defined in s 8 of the SRC Act, and “impairment” , as defined in s 3 of the SRC Act, and the Tribunal so finds.
Pursuant to s 26(1) of the SRC Act, therefore, compensation is payable to the applicant for Major Depressive Disorder suffered by him on 5 June 2012.
Decision
For the above reasons the decision under review is set aside and in, substitution therefor, it is decided that, pursuant to s 26(1) of the SRC Act, compensation is payable to the applicant for Major Depressive Disorder suffered by him on 5 June 2012.

83. I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.

............[sgd D Brodie]....................................
Administrative Assistant
Dated 15 May 2013

Dates of hearing 20–22 March 2013

Counsel for the Applicant Mr H Kelly SC

Solicitors for the Applicant W G McNally Jones Staff

Counsel for the Respondent Ms R Aria Retnam

Solicitors for the Respondent Jarman McKenna

[2013] AATA 307

Key Legal Topics

Areas of Law

Employment & Labour Law

Legal Concepts

Unjust Dismissal

Mental Health

Major Depressive Disorder

Workplace Stress

Remedial Compensation

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4416
Re	David Bose
APPLICANT
And	Swire Pacific Ship Management (Australia) Pty Ltd
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	15 May 2013
Place	Perth

Dates of hearing	20–22 March 2013
Counsel for the Applicant	Mr H Kelly SC
Solicitors for the Applicant	W G McNally Jones Staff
Counsel for the Respondent	Ms R Aria Retnam
Solicitors for the Respondent	Jarman McKenna