De Tarle and Comcare (Compensation) - [2021] AATA 94

De Tarle and Comcare (Compensation) [2021] AATA 94 (3 February 2021)
Division:GENERAL DIVISION
File Number(s): 2015/0316
Re:Benoit De Tarle
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:3 February 2021
Place:Sydney

The decision under review is affirmed.
...................................[sgd].....................................
Dr I Alexander, Senior Member
Catchwords
WORKERS’ COMPENSATION – whether the Applicant’s employment contributed to, to a significant degree, to the aggravation of the Applicant’s pre-existing psychiatric condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7 and 14
Cases
Canute v Comcare (2006) 226 CLR 535
Military Rehabilitation and Compensation Commission v May [2016] 257 CLR 468
Re Whitlock and Comcare [2020] AATA 1353
Secondary Materials
AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014 (AMA Guides) at 18
REASONS FOR DECISION
Dr I Alexander, Senior Member
3 February 2021

Mr De Tarle was employed by the Australian Securities and Investment Commission (ASIC) from 10 May 2010 to 29 April 2013 as an ASIC 4 Analyst.
In an unsigned claim for compensation, dated 23 August 2013, Mr De Tarle claimed compensation for “[s]evere anxiety and depression” which was first noticed in April 2012. In the claim form, he noted that he had received medical treatment for a similar illness “[o]ngoing since 2006”. He alleged that claimed condition was due to “[b]ullying and harassment.”
In an unsigned covering letter, Mr De Tarle stated that:
“I have not as yet signed the claim form and do not authorise or consent to Comcare disclosing (or to ASIC and ASIC staff accessing) the information in this form until a satisfactory undertaking is made by ASIC and ASIC staff that they will not reveal any of my personal information or seek to force me to reveal any of my personal information in public, or to unrelated third parties.”
On 24 April 2014, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare denied liability for “aggravation of depressive disorder” and “aggravation of anxiety state”. In the letter to Mr De Tarle, the Comcare Delegate stated that “having regard to the available evidence, I am not satisfied your employment contributed to your condition to a significant degree.”
In a reviewable decision dated 24 November 2014, the Review Officer affirmed the determination dated 24 April 2014.
In these proceedings, Mr De Tarle who was represented by counsel, seeks review of this reviewable decision.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, the parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee if the injury results in death, incapacity for work, or impairment’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. [emphasis added]
Subsection 5A(2) of the SRC Act provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)       a reasonable appraisal of the employee’s performance;
(b)       a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)       a reasonable suspension action in respect of the employee’s employment;
(d)       a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)       anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)        anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
‘Disease’ is defined in section 5B of the SRC Act:
(1)       In this Act:
disease means:
(a)         an ailment suffered by an employee; or
(b)         an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)         the duration of the employment;
(b)         the nature of, and particular tasks involved in, the employment;
(c)         any predisposition of the employee to the ailment or aggravation;
(d)         any activities of the employee not related to the employment;
(e)         any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in subsection 4(1) of the SRC Act:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 7(7) of the SRC Act provides:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
ISSUES
The evidence before the Tribunal clearly demonstrates that, during the period of his employment with ASIC, Mr De Tarle had suffered a significant pre-existing psychiatric condition which, at the hearing, was described as Chronic (Persistent) Major Depression associated with underlying personality Dysfunction/Disorder.
There is no dispute that Mr De Tarle’s pre-existing psychiatric condition is an ailment for the purposes of subsection 4(1) of the SRC Act.
Mr De Tarle contends that in 2012 or 2013 he suffered an aggravation of his pre-existing psychiatric condition that was contributed to, to a significant degree, by his employment at ASIC.
The Respondent contends that any aggravation of his mental health condition that Mr De Tarle may have suffered, during his employment at ASIC, was not contributed to, to a significant degree by that employment.
In the alternative, if the Tribunal finds that Mr De Tarle suffered an aggravation of his underlying mental health condition that was contributed to, to a significant degree, by his employment with ASIC, the Respondent contends that the aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of this employment and therefore Comcare is not liable to pay compensation in accordance with paragraph 5A(1)(c) of the SRC Act.
Therefore, the definitive issues before the Tribunal are:
i)during the period of his employment with ASIC, did Mr De Tarle suffer an aggravation of his pre-existing psychiatric condition; and, if so
ii)was the aggravation of his pre-existing psychiatric condition contributed to, to a significant degree, by Mr De Tarle’s employment; and, if so
iii)was the aggravation of his pre-existing psychiatric condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr De Tarle’s employment with ASIC.
DOCUMETARY EVIDENCE
Mr De Tarle’s written statement
In a written statement, dated 21 February 2019, Mr De Tarle stated, inter alia, as follows with emphasis added:
Prior to my beginning employment at ASIC I was free of any medical condition which could impact my work at ASIC. This was confirmed to my former employer on 30 April 2010 in response to the question on the Commencement Form “Do you have any pre-existing injuries /medical condition(s) that may impact on the work you do at ASIC?” A copy of this form was provided to the respondent on 24 July 2014 as part of my request for review and detailed in a letter… which however was not included in the T documents[1] and which seems to have also been missed by the respondent…
Prior to my employment at ASIC and for a period of time at ASIC I was fully functional, organised, reactive and confident… As the regulator, I believed ASIC would contain and offer an environment which was principled, hardworking, and progressive, and because it was a regulator highly ethical. While sometimes this was true, it was also sometimes untrue. Whilst at ASIC I also heard employees swearing and intimidating other employees, stories of sexual harassment, absenteeism, bragging of drug taking, bragging of undermining colleagues… ridiculing areas of finance which was considered inferior…
There were certainly many problems in the team I was in and have provided much evidence to the respondent …
My medical records also show a clear and direct correlation between issues of concern I raised and escalated, was subjected to, or for which I sought help, during my time at ASIC. Prior to starting, I was on a very low dose of anti-depressant[2], a fully functioning person, and in the early months of my time at ASIC had even discussed my coming off medication completely. This is referenced…
It seems however the respondent seems unsatisfied… Several psychiatrists however have attested to my employment at ASIC being the cause of my illness which unfortunately continues.
What is clear that my attempts to resolve these issues either personally and informally or through the different processes and procedures available could not be successful. As it turns out such procedures were simply tokenistic. As time and events progressed I was subjected to a deliberate, repetitive and prolonged bullying, coercion and even threats of loss of employment for unspecific matters… My requests for evidence of the alleged claims of poor performance were ignored or described in very vague assertions.
I was told all I had to do to improve my performance was to adhere to performance improvement plan. Part of that adherence was signing the plan so that I would recognise the areas I needed to improve…
I was concerned that if I signed the plan then ASIC would use this as some sort of confession that my complaints of bullying and unreasonable behaviour were baseless…
The more I tried to reason with ASIC the more the agency became aggressive in its demands and assertions. I was treated with distain [sic], and painted as being a troublemaker for not “cooperating”. In the last few months I was subject to almost daily coercion by instant messaging, phone calls and in meetings…
Throughout this time I attempted to maintain an appearance of normality, a professional attitude and continue my work diligently despite constant humiliation, offence, intimidation and distress these events were causing . For days, weeks and months I resisted the completely unreasonable behaviour of the agency. However, I also started taking regular time off work from December 2012 something which had been extremely rare for me to do during my entire working life…
[1] Section 37 Documents (T-Documents) Vol.1 – T8 page 25 – Commencement form dated 3/4 /10 – Do you have any pre-existing injuries / medical condition(s) - NO.
[2] Summons Documents (Sydney Medical & Dental Care): Dr Choy -17 August 2010 - prescription for Aropax (tablets) 20mg take 2 tablets, 1 times a day – Aropax (paroxetine) is an SSRI antidepressant, maximum dose 40 mg per day.
In his statement, Mr De Tarle claimed that the report written by Dr Champion dated 21 February 2017 contained multiple “inaccuracies” and was “incomplete”. For example, Mr De Tarle stated as follows:
…Dr Champion states that whilst an inpatient at the Royal North Shore Hospital I absconded, and that “this did not immerge (sic) at this point” from the history I provided. No such history could emerge as it did not occur.[3] …Dr Champion also states that I had violently resisted Police employing strikes and kicks and wrestling violently. That is also incorrect[4]…
[3] See paragraph 28 below – 18 April 2012 - RN, CNC and Police notes.
[4] Ibid – 18 April 2012 – Request for assessment by a Member NSW Police Force.
ASIC Staff Statements
In a statement dated 27 September 2019, Mr Grech who was the Senior Manager (EL2) in the Financial Market Infrastructure (FMI) team stated, inter alia, as follows:
I first came into contact with Mr de Tarle at the time he interviewed for a position at ASIC in 2010 as I was on the interview panel at that time. I recall that Mr de Tarle had applied for a position at an EL1 position, but it was decided that because he had come from a back office environment and did not have the relevant experience in frontline regulation required for the EL1 position, his skillset was suited to a more junior role. This was explained to Mr de Tarle who accepted the ASIC4 position.
In early 2012, Mr de Tarle made a complaint that I had told him not to talk during meetings. I do not recall ever telling Mr De Tarle to not talk during meetings. I do recall that Mr de Tarle had a tendency to put people on the spot during meetings and ask obscure questions that were at times irrelevant to the topic of discussion…
Mr de Tarle also alleged that I had yelled at him for sending emails to staff in which he had asked for feedback on his performance… Mr de Tarle and I did have discussions about issues staff members (I never stipulated which staff member) had about his performance, after which he would send emails to certain employees, indicating that I had told him they had complained about his work. This behaviour created a strained work environment between Mr de Tarle and his peers, with the latter being reluctant to respond to such emails...
As Mr de Tarle’s manager, I was involved in conducting a performance review during his 2011-2012 performance cycle. In this review, I gave Mr de Tarle a rating of “improvement required” as I believed he still required assistance with performance aspects… I gave Mr de Tarle positive feedback about of some of the research he had completed on a task and his efficiency and effectiveness on another task. I also outlined areas in which Mr de Tarle could improve… [including to] collaborate with and support other team members. …I recall that Mr de Tarle tended to work autonomously and avoided socialising with his team. However, working in the FMI team often required employees to work on tasks together. Mr de Tarle did not take well to receiving instruction from senior staff nor did he work effectively with others in his team…
On 3 August 2012, I drafted a notice of unsatisfactory performance which was given to Mr de Tarle a few days later. This notice stated that, in accordance with 2011-2014 ASIC Enterprise Agreement, because he had received two consecutive ratings of “improvement required”… a Performance Improvement Plan (PIP) would be implemented. The notice outlined that Mr de Tarle still needed to improve on his analytical skills, teamwork, communication and professionalism…
On 11 October 2012, I attended a meeting with Mr De Tarle, a representative of the union, and an employee from the People and Development Team at ASIC (Mr McGee) where we discussed Mr De Tarle placement on a PIP. In this meeting we discussed the commencement of the 90 day assessment period, the fortnightly review meetings, the need for Mr De Tarle to adhere to the 8am-6 pm work hours …and the need to provide written work on a “final” rather than “draft” manner.
On 29 October 2012, I attended a further meeting with Mr de Tarle, a representative of the union, and Mr McGee to discuss Mr de Tarle’s progress on the PIP. Mr de Tarle indicated that he had been working past 6pm on some days and had come into the office on the weekend without first seeking my approval. I again reminded Mr De Tarle that he needed my approval to be in the office outside of the normal hours. Mr de Tarle had also completed writing skills courses and had submitted work that had met expectations, for which I commended him. I also recall that while Mr de Tarle had voiced some concerns about the wording of the PIP, he indicated that he would proceed on the basis that PIP was still in effect.
On 13 November 2012, I again attended a meeting with Mr de Tarle, a representative of the union, and Mr McGee to discuss Mr de Tarle’s progress on the PIP. In this meeting I discussed some areas of improvement for Mr de Tarle to consider in relation to a specific task… [including] his drafting skills, attention to detail, and ability to follow instructions. We also discussed feedback from a senior staff member who had indicated that Mr de Tarle had produced good work on another task and that this had meet expectations.
In around December 2012, Mr de Tarle began taking extended periods of leave from work. In late January 2013, Mr de Tarle returned to work after informing me that he had stitches removed and would need further physiotherapy. There were continued absences from work throughout January and February 2013.
It was around February 2013 that I ceased working for ASIC...
In a statement dated 30 August 2019, Mr Krslovic, Senior Manager of the FMI team stated, inter alia, as follows:
I first came in contact with Mr de Tarle in mid-2010… At that time, Mr de Tarle was an ASIC4 Analyst and I was his Manager…
As is practice at ASIC, new employees are placed on probation for the first six months of their employment. [His] … probation period was 10 May 2010 to 9 November 2010. At the end of the probation period, I produced a report in which I noted Mr de Tarle was performing to a “satisfactory” level. I indicated that while Mr de Tarle had been keen and conscientious, he still needed to improve on his listening skills (such as understanding and following instructions), pay more attention to detail when completing written work, and to deal with criticism in a positive manner.
Throughout the probation period, I had several discussions with Mr de Tarle about how he was finding the work he had been tasked with, how he was performing and how he could improve. I recall asking Mr de Tarle to concentrate on doing tasks to completion and to try and avoid asking for more work when tasks had not yet been completed …
While Mr de Tarle was only a junior employee at ASIC at the time, he appeared to have a tendency to overestimate his own knowledge and to therefore dismiss the guidance of senior team members…
One of the tasks involved in being Mr de Tarle’s manager was producing mid-point and end-of-cycle performance reviews. These reviews indicate the areas where an employee has succeeded and areas where improvement may be needed…
In Mr de Tarle’s mid-point review of the 2010-2011 performance cycle, I gave him an “improvement required” rating. As outlined in the Performance Management Framework this rating indicates that the employee is contributing at a basic level and has necessary ability to handle his or her current role but requires assistance with performance aspects of the role and, therefore, improvement is required…
In Mr de Tarle’s annual performance review on the 2010-2011 performance cycle, I again gave him a rating of “improvement required”. I noted that he had shown some improvement, such as assisting colleagues, highlighting and correcting procedural errors in the team, showing sound knowledge of processes and better analysing matters. However, I believed improvement was still required as Mr de Tarle still needed to deliver tasks effectively and efficiently, manage competing priorities and not to go off on unrelated tangents, and pay better attention to detail with the written expression in his work.
In early 2012, I was approached by Judy Lyng from Human Resources (HR) team about certain allegations Mr de Tarle had made about me.[5]
[5] Note: Mr Krslovic denied all these allegations.

In a statement dated 8 August 2019, Mr McGee, HR Relationship Manager, stated, inter alia, as follows:
I believe I first came into contact with Mr de Tarle in about mid-2011… Mr de Tarle worked in… Financial Market Infrastructure (FMI), which consisted of approximately 30 employees, including several Senior Managers and a Senior Executive Leader (SEL)…
ASIC follows an annual performance management cycle, with regular communication and formal performance reviews at mid-point review and end of cycle where a performance rating is provided… I became aware of Mr de Tarle’s performance as part of my role supporting the performance management and calibration process.
In early 2012, Mr de Tarle alleged that two senior managers in his team had bullied an harassed him. Following an internal investigation by another member of People and Development, the allegations were found to be unsubstantiated…
In June 2012, the FMI team had a half day workshop… [which] included a session aimed at improving teamwork, where employees were asked to complete a professional profile assessment (DiSC)… The same DiSC tool session was run for many ASIC teams and allowed people to understand others different preferred styles and how to use this to work more effectively with their respective team mates. This was not an assessment of the employees’ personalities, and none of the four professional profiles were seen as being better than any other profile. As part of the session, employees were invited to share their professional profile… It is true that employees were told they were not required to share their professional profile with the group…I understand Mr de Tarle indicated to the facilitator that he did not want to share his professional profile …
Sometime later, Mr de Tarle’s manager noted in his 2011/2012 annual performance review that Mr de Tarle needed to improve his team work. He included Mr de Tarle not sharing his professional DiSC profile as an example... Mr de Tarle raised that it was not a requirement… It was understood that Mr de Tarle made a valid point and this should not have been included as an example in the annual performance review feedback. I believe that no further refence was made regarding this and Mr de Tarle’s performance.
It is important to note that this was not the cause of Mr de Tarle being given an “improvement required” rating in his 2011/2012 annual performance review …there were a number of areas where Mr de Tarle needed to improve, supported by examples.
On 7 August 2012, a ‘Notice of unsatisfactory performance’ (dated 3 August 2012) was provided to Mr de Tarle …because he had received a performance rating of “improvement required” at two consecutive end of cycle or annual reviews, which according to the 2011-2014 ASIC Enterprise Agreement (EA), automatically[6] triggers the implementation of a formal performance assessment process…
[6] Clause 30.3 of the EA.
ASIC conducts this formal assessment by use of a Performance Improvement Plan (PIP). A PIP is a plan designed to guide the assessment and improvement process…
There was a delay in commencing Mr de Tarle’s PIP as there was an investigation being conducted by Comcare around this time[7]…
On 11 October 2012, a meeting was held with Mr de Tarle, his manager, a staff representative of the union, and myself…to commence the assessment and PIP... [W]hile Mr De Tarle was still concerned about his 2011/2012 annual performance review rating, he had agreed to abide by the PIP.
Following this meeting, Mr de Tarle sent me an email and claimed that he did not agree to sign the PIP. Some of his objections related to his acceptance and understanding that there were performance issues to improve…
Following a fortnightly PIP meeting on 13 November 2012, I also provided notes of the meeting. In a response to the meeting notes in an email of 28 November 2018, Mr de Tarle accused me of “threatening and harassing behaviour” during the meeting. I categorically reject any accusation that I acted inappropriately during that meeting.
I escalated this allegation to my manager Ms O’Loughlin, the Senior Executive Leader of People and Development. Ms O’Loughlin then investigated this accusation, which included talking to the union representative who was present at the meeting. In her email dated 9 January 2013 to Mr de Tarle, Ms O’Loughlin stated that following her investigations, she found my behaviour was appropriate and considerate.
Even though Mr de Tarle refused to sign the PIP, we needed to proceed on the basis that… the 90 day assessment was underway. Fortnightly PIP meetings were held... After four weeks Mr de Tarle was informed… that his performance had not met expectations.[W]hile Mr de Tarle had performed satisfactorily during the first two weeks he had not sustained this level of performance during the following fortnight.
During December 2012 and following the Christmas break in 2012, Mr de Tarle took significant periods of personal and annual leave. In December 2012, he worked approximately 3 days and in January 2013, he worked a total of 6 days. While on absence in January 2013, Mr de Tarle emailed his manager on 23 January 2013 (the day before his return), and provided a medical certificate which indicated “he should avoid stressful situations”. It was not clear from this certificate what Mr de Tarle was capable of doing. There were concerns that since Mr de Tarle’s performance was being formally assessed and that there were potential consequences for his employment… that this could constitute a “stressful situation”.
After further absences and attempts working with Mr de Tarle to gain further medical information, I organised for Mr de Tarle to attend an Independent Medical Assessment with a psychiatrist… on 20 February 2013. The purpose of obtaining this independent medical opinion was to see whether Mr de Tarle was fit for normal duty… Mr de Tarle did not attend this assessment. I made a further appointment… On 8 March 2013, I directed Mr de Tarle to attend but he again failed to attend.
After this time, Mr de Tarle continued to be absent from work. His employment was terminated at the end of April 2013… on the basis that he had continued to take unauthorised absences from work (non- performance of duties)…
[7] See paragraph 25: 28 September 2012 – Comcare provided a compliance inspection report.
Employment Chronology
The following sets out Mr De Tarle’s (A) relevant actions and incidents with respect to his employment with ASIC[8]:
[8] Employer Statement dated 17 March 2014; Employer’s Response to Application for Unfair Dismissal Remedy.
·10 May 2010 – A commences employment with ASIC as an Analyst (ASIC 4 level)
·9 November 2010 – A completes his probationary period. Areas for improvement are raised during the probationary period and in the final evaluation to pass probation.
·February 2011 – Mid-point performance review – rating is Improvement Required, commenced an informal performance review improvement process, with coaching and support from his supervisor.
·July 2011 – Annual review - rating is Improvement Required
·5 October 2011 – A meets with his supervisor, Mr Joe Grech, Senior Manager to establish informal plan to improve performance with the ASIC Performance Management Framework
·1 November 2011 – A emails HR Advisory regarding access to his employment and performance records
·21 November 2011 – A lodges Freedom of Information (FOI) request regarding employment documents and performance management
·22 December 2011 – FOI decision made… advised documents available from his Senior Manager
·18 January 2012 – A reminded relevant documents available
·24 January 2012 – A collects requested FOI documents
·Late January 2012- A emails ASIC Chairman to complain about delay undertaken to obtain his information under FOI
·Early March 2012 – ASIC Chief Legal Officer prepares response outlining the process followed.
·8 March 2012 – Mid-point review –rating is Improvement Required;
·8 March 2012 – A requests primary review under section 33 of Public Service Act of his 2010-2011 annual performance rating… Relationship Manager People and Development (RMPD) appointed to complete review
·8 March 2012 – A writes to Senior Executive Leader People and Development about concerns relating to bullying and harassment
·27 March 2012 – A makes written complaint of harassment and bullying against his Manager……. and another Senior Manager
·1 April 2012 - Senior Manager, People and Development (SMPD) appointed to investigate …… complaint
·5 April 2012 – RMPD completes review of 2010-2011 performance rating – rating is upheld
·18 April 2012 – 23 April 2012 – A admitted to RNSH
·30 April 2012 – SMPD completes bullying and harassment investigation and finds no evidence of bullying and harassment… she makes some recommendations with regard to improving communication within the team
·4 May 2012 – A writes to SMPD stating that there have been reprisals for his action in raising a complaint… does not provide any details
·7-9 May 2012 – SMPD and People and Development Relationship Manager (PDRM) … are satisfied that there had been no reprisals
·June 2012 – A seeks further (secondary review of the 2010 – 2011 performance rating via the Australian Public Service Merit Protection Commissioner
·10 July 2012- End of cycle review 2011-2012 – rating is Improvement Required
·7 August 2012 – A provided with notice of unsatisfactory performance and advised that he will be placed on a Performance Improvement Plan (PIP) as mandated under the ASIC Enterprise Agreement when a staff member receives two end-of-cycle ratings of improvement required
·28 August 2012 – Comcare contacts ASIC advising that A has lodged a complaint with Comcare alleging bullying and harassment
·5 September 2012 – Comcare conducts site visit to audit ASIC policy and procedures and training used to assist in managing bullying and harassment risks and to ascertain if A’s complaint has been addressed in line with those procedures. Comcare advises that the PIP process should not commence until outcome is finalized.
·20 September 2012 – Merit Protection Commissioner writes to Mr De Tarle advised that the 2010-2011 end of cycle rating is not reviewable by her as his request for review was lodged out of time
·28 September 2012 – Comcare provides a compliance inspection report. Comcare is satisfied that ASIC has a systematic risk management approach to manage bullying complaints… finds that A’s complaint was addressed in a timely manner with the outcome of ASIC’s investigation conveyed to A… advises that ASIC is compliant with Work Health and Safety Act 2011 and indicates that PIP can proceed
·5 October 2012 – A lodges request with SELPD for primary review of actions relating to his 2011-2012 end of cycle rating. P&D Relationship Manager (PDRM) appointed to conduct this review
·5 October 2012 – A writes to SELPD complaining of harassment, discrimination and victimization… stated that he has been humiliated, demeaned and distressed by the unwarranted, untrue and incomprehensible claims made about his performance. It is not clear who is the subject of the complaint. When A is asked to identify the individuals he is complaining about he responds: Until I receive a response I am not in a position to confirm whether one or more individuals are concerned. A was advised to contact Harassment Contact Officers within ASIC to provide more details of his complaint as it was unable to be properly investigate due to lack of clarity surrounding the complaint
·11 October 2012 – Formal PIP process commences….
·19 October 2012 – A lodges request for primary review of the decision to place him on a PIP… SELPD responds that it is an automatic outcome… of receiving two annual ratings of Improvement Required, in accordance with ASIC’s Enterprise Agreement…
·28 November 2012 – A accuses PDRM of threatening and harassing behaviour in a PIP meeting… SELPD who speaks to other parties involved in the meeting (including the CPSU union delegate acting as a support person for Mr De Tarle), did not support this claim
·30 November 2012 – Review of action conducted by PDRM… upholds 2011-2012 performance rating of improvement required
·30 November 2012 – Assessment report at the end of the first month of PIP indicated that A was not meeting performance expectations
·December 2012 – A absent on personal leave for most of the month (attends work 3 days)
·23 December 2012 – A lodges FOI request with ASIC Chief Legal Officer requesting documents relating to feedback provided as part of his 2011-2012 performance review
·24 December 2012 – A attends work with medical certificate stating he is “fit for normal duties” and advising him to avoid “unnecessary stress”
·January 2013 – A absent on authorized sick leave for majority of month - attends work 6 days
·24 January 2013 – A attends work after authorised 7 day absence following finger surgery. On return also provides certificate from GP stating… “must avoid any stressful situations”
·31 January 2013 – A seeks secondary review of 2011 – 2012 performance rating via Australian Public Service Merit Protection Commissioner…
·1 February 2013 – Meeting with A in an attempt to gain further information on [his] medical condition…
·Early February 2013 - Following the meeting attempts to gain information from A’s doctor are unsuccessful. Mr de Tarle is unwilling to authorize ASIC to contact his GP directly…
·20 February 2013 - Appointment arranged by ASIC with an independent medical specialist to assess his fitness for duty… A declines to attend
·11 February 2013 - 1 March 2013 – A on unpaid personal leave (has now exhausted all paid personal and annual leave)
·1 March 2013 – A advises that “to ensure his health and safety” he will not be able to attend work the following week
·8 March 2013 – Another independent medical assessment booked… A does not attend despite having been directed to attend (in accordance with Public Service Regulations)
·10 March 2013 – Whistleblower complaint sent to ASIC Chairman. Commission Counsel appointed to investigate[9]
·15 March 2013 – Written performance feedback for periods worked since November 2012 emailed to A. Performance to date has not met expectations
·8 April 2013 – SMPD writes to Mr De Tarle advising that his absence from 4 March 2013 is considered to be unauthorized… A given opportunity to respond by 15 April 2013… extension to 17 April 2013
·18 April 2013 – A responds to correspondence of 8 April 2013, listing a number of reasons that he does not feel safe at work. Each of these has been raised and addressed previously
·29 April 2013 – SMPD terminates A’s employment the grounds of non-performance of duties[10]
·16 May 2013 - Application for Unfair Dismissal Remedy lodged with Fair Work Commission
·17 June 2013 – Conciliation: matter resolves, deed signed
·21 June 2013 – A confirms his resignation from ASIC, effective from 29 April 2013
[9] 10 May 2013 - Mr De Tarle advised of outcome.
[10] In accordance with section 29(3)(c) of the Public Service Act1999 (Cth).
Sydney Medical & Dental Centre Patient Medical History (Dr Choy, Dr Au, et al)
Extracts of Mr De Tarle’s medical history recorded, inter alia, as follows with emphasis added:
12 September 2006 – feeling anxious… still taking aropax[11]… stress from work… not keen on increasing aropax.
[11] Supra at 2.
4 October 2006 – still stressed. taking aropax
12 March 2007- discussed rv gp mgt plan, inc anxiety, was fired from job 2/12 ago b/c made complained about manager putting too much pressure on pt + otehr [sic] staff. has seen lawyer. consider cbt/psychology Rx.[12]
[12] cbt – cognitive behavioral therapy.
23 April 2007 – 30 - Paroxetine hydrochloride 20 mg… gp mental health plan
4-5 September 2007- Scanned document - Carlos Camacho, Psychologist… had appointment for 1030 am but left at 1030 need to reschedule
25 March 2008 – 30 - Paroxetine hydrochloride 20 mg… working in singapore back in syd 1 wk, wants scripts; stable but meds cost$$ in singapore
8 October 2008 – 30 - paroxetine hydrochloride 20 mg… feeling down… has been stressed; left job in standard + charted bank in singapore… saw psychiatrist in s’pore, had sleeping tabs, Xanax[13] stress b/c ongoing legal prob w previous employer; with workplace ombudsman
[13] Xanax: alprazolam – anti-anxiety medication.
21 November 2008 (Dr Ahmad) – couldn’t find scripts… depression: not adequate response with paoxtne 30 mg diffct sleeping… discussed try paroxtene 40mg day [sic]
28 January 2009 – 60 - Paroxetine hydrochloride 20 mg – will be bringing ex employer to industrial relations commission hearing soon. Has felt paroxetine 1.5 tabs day not as effective re anxiety + depression. Not keen on changing Rx, as fears withdrawal effects, as last time ran out of tabs in S’pore for 4 days was spaced out mood dropped very low… is working part time in boat shop
5 March 2009 – attending court re unfair dismissal
19 March 2009 – went to court last month, says others given false reports, were “twisted around”
4 September 2009 – script paroxetine, Court case “a mess” – pt thinks Ombudsman made mistakes. Went to industrial relations commission, then Commonwealth ombudsman has been overseas looking for a job. Mood much the same, “ups and downs” Happy to stay on paroxetine. difficult finding a job in Aus.
13 January 2010 – 60 - Paroxetine 20mg; has been feeling well, mood ok… thinks Workplace Ombudsman had made a lot of mistakes, then will send to Commonwealth ombudsman.
9 July 2010 – Has job now working for ASX [sic]. happy to remain on Aropax
17 August 2010 – Rx 60 - Aropax (Tablets) 20mg; well, happy with job at some stage will try to wean down
21 February 2011- Feels well, wants to continue on Aropax Rx: 60 - Aropax, (Tablets) 20 mg[14]
27 June 2011 (Dr Reid)- occasional insomnia reltd to stress over legal case instigtd against former employer… happy with current work with ASIC… did not find psychologist helpful
15 September 2011 (Dr Reid) - rpt aropax, feels he will be on them forever, seem effective, counselling logistically difficult in the past… 4/12 pain in right foot … Rx… Aropax (Tablets) 20 mg - Take 2 Tablets, 1 times a day.[15]
6 December 2012[16] (Dr Ying) - feeling stressed at work. Attempted suicide 04/2012 by CO poisoning, admitted to RNSH then. and attended RNS CMH unit since,[17] has been seeing a psychiatrist – last appt about 3 months ago. Has not been going to work since earlier this week… Put onto performance plan at work over some management issues at work. Stress affecting his ability to sleep… is on Eleva[18] 100mg once daily. Rec: review with psychiatrist for Rx of stress/ depression
15 December 2012 (Dr Lowe) - …could not see psychiatrist… RNS Community Clinic did not get back to him with appt… Still on Eleva 100 mg once daily. Says unable to afford private psychiatrists. Very stressed, unable to sleep. Work related issues still ongoing, says these are long standing problems. Palpitations, stomach knotted, impaired concentration. Says does not feel low moods, no suicidal ideation. Rec: refer to ED RNSH[19]…
22 December 2012 (Dr Lowe) – On Olanzapine[20] - SB Psychiatrist[21] requires certificate for fit
5 February 2013 (Dr au) – employer has list of questions re suitable duties. stressed about his performance at work being under review - due to seek legal advice - not workers comp yet - employer is requesting a report from me re suitable work duties - is unsure how to proceed - referred to psychiatrist
23 February 2013 – commenced seeing a female psychiatrist last nite, been off work since [illegible]2013, feeling more anxious about whats happening at work, esp manager and hr fearful they will make false accusations… work performance dropped off… Since june 2012 been on an antidepressant[22]…
[14]Mr De Tarle’s DHS Individual Prescribing History reveals that a prescription dated 21 February 2011 of paroxetine, 60 tablets, was dispensed five times between 21 February 2010 and 5 August 2011. Paroxetine was not supplied after 5 August 2011. There is no record of any antidepressant medication being supplied until 23 April 2013 (sertraline – an SSRI antidepressant prescribed on 28 February 2013 by Dr Unsen).
[15] Ibid: It would appear that Mr De Tarle’s intended daily dose was 40 mg per day and, therefore, one prescription would last only one month, however, this prescription was in fact not dispensed.
[16] There is no record of any face- to-face consultations between 15 September 2011 and 6 December 2012.
[17] There is no evidence of any such consultations.
[18] Supra at 14 - sertraline- no evidence of a prescription at that time.
[19] Mr De Tarle presented to ED RNSH on 15 December 2012 but signed himself out against medical advice – see paragraph 28 below.
[20] Olanzapaine- atypical antipsychotic no evidence of a prescription or supply.
[21] No evidence to support this.
[22] Supra at 14 – unreliable history.

In a letter dated 31 March 2014, Dr Au stated, inter alia, the following:
Date of first impairment 12 th September 2006… stress at work… Dr Choy gave him a prescription of Aropax [an antidepressant]…
January 2007 alleges unfair dismissal because he complained about his manager. April 2007 Dr Choy completed a mental health plan and Mr de Tarle was referred to a Psychologist… 2009 to 2012 depression & anxiety continues… April 2012 condition worsens, marked sleep disturbance and attempts suicide… attends Royal North Shore Hospital. Is followed up by another Psychiatrist… Major Depression & Anxiety… described in 2007… There is a history of depression in 1997 – further details unavailable... I do not believe his current condition is an aggravation of a pre-existing condition.
He has been referred to Psychologist [Mr Carlos Comacho] but did not attend and Psychiatrist [ no names or letters are in the file]…
Royal North Shore Hospital – Medical Records
Relevant extracts, inter alia, as follows:
2012
18 April - 2012 17:00 – Mental Health Assessment: 40 yr old male who reports feeling constantly overwhelmed – that his situation is hopeless – he has nothing to live for. He reports being stressed by his situation at work, is now fearful he will lose his job in 5/12. He believes manager is conspiring against him making false allegations re his work performance. He describes being a “whistle blower” 6 years ago against corruption which has gone to the Federal Police and & Commonwealth Ombudsman. He was unemployed for 3 yrs he claims as a result S/B GP Rx Paroxetine for depression…
18 April 2012 -20:10 – CNC: Informed NUM of ED that patient had absconded when being escorted main area bed. Police were notified, Schedule faxed.
18 April 2012 – 22:20 – Request for assessment by a Member NSW Police Force: POI was being detained under a schedule after escaping a MH care facility when he violently resisted police, employing strikes & kicks & wrestling violently w/ police, to avoid detention under the act. The POI could not be restrained in the confined space, the POI did not comply despite verbal, physical restraint & police were left w/ no option but to deploy a Taser to the chest of the POI.
19 April 2012 – CMO – Presented to ED, initially by himself, after trying to commit suicide OD Temazepam + gassing himself in the car… regrets the attempt… Attempted suicide by hanging in 2008, in context of work stressors (again), was on &off paroxetine given by GP… Meds as charted Paroxetine 40g (m)
21 April 2012 – Nursing – Pt only accepting 20mg Paroxetine instead of 40 mg. pt states usual dose is 20mg, and that he “mentioned it to the doctor”
23 April 2012 – Nursing – Medications currently on Paroxetine 40mg mane, accepting 20mg stated that “I want to have children, and this affect fertility”[23]
23 April 2012 – as per Dr Telfer: D/C home F/U RNS CMHT needs appt late this week, then ongoing, Has medical certificate continue paroxetine 20mg daily, weeks olanzapine 2.5 mg nocte (discharge medication 7 day supply)
15 December 2012 13:12 – RNSH ED – 41 yr old male reports increased anxiety over the last 3 weeks due to stressors at work. Presenting as he felt his anxiety was getting worse. Denies any suicide ideation or thoughts… Is currently taking Elavil. Previously taking Paroxetine… discussed with psych cnc: will review… pt waited for approx 2 hours and did not wish to wait further. He discharged himself against medical advice.
2016
1 July 2016 10:19 – Report to Mental Health Tribunal: This is a medical report for Mr Benoit De Tarle wo is currently detained[24]… in the Royal North Shore Hospital Mental Health Impatient Unit. Mr De Tarle came to the attention of psychiatric services after having sent an email to multiple government departments threatening suicide… This prompted intervention from emergency services who detained him under the terms of the MHA and presented to hospital for psychiatric review. Mr De Tarle presents as a highly paranoid individual who does not meet the criteria for psychosis. He has remained extremely evasive psychiatric interview, but of small amount of information gleaned he meet criteria for disturbance of mood. Collateral history confirms suicidal ideation and indeed there is a history of attempt in the past under very similar circumstances to now. Mr De Tarle is currently being treated for the syndromal features of depression with a concomitant diagnosis of paranoid personality disorder… it should be stressed that this is an extremely opaque situation… Whilst the risk of suicide appears clear enough, it is unclear as to all its features due to the difficulty in interviewing Mr De Tarle. Details of his personal situation are hard to verify and he has made reports to the treating team which have been contradicted by his relatives….
1 July 2016 17:10 -Social Worker: …Limited engagement with author, declined to answer questions about presenting problem, mental state or emotional experience. Provided vague and guarded responses… Indicated that he was “unable to disclose” any information about his current situation or what brought him to hospital… expressed concern about the “confidentiality of my medical file”… reported that he had ongoing “compensation” claims for the past 5 years with a previous employer… reported that he was unable to provide author with any details about this matter… reported that he did not have any difficulties prior to working for this company…[emphasis added]
7 July 2016 – Progress note: Ben has been reviewed by Dr Fay for 2^nd opinion… Both consultant, Dr Telfer and Dr Fay seem to agree that patient has got a hypersensitive paranoid personality disorder and views himself as aggrieved and victimised.
11 July 2016 – Discharge summary: Inpatient 26/6/2016 – 9 July 2016 – It was difficult to engage Mr De Tarle in discussions with his team. He was guarded, and unwilling to discuss feelings or personal thoughts. He was highly paranoid about how the information gained by the doctors may be used in his compensation claim against him. He does however report lack of motivation and poor sleep for last few months /year pointing towards a depressive episode. It was felt that he suffers for a hypersensitive/ paranoid personality structure as well as a recent history of low mood.
[23] During 2012, Mr De Tarle and his partner were undergoing IVF fertility treatment.
[24] Detained on 26 June 2016.
On 5 August 2019, Mr De Tarle was seen by Dr Bell, Senior MO, for psychiatric review. Dr Bell provided a comprehensive record of interview which was referred to by Dr Champion in his report of 28 March 2020. Dr Champion pointed to relevant issues raised during the interview which I have noted below and do not intend to repeat.
However, Dr Bell also stated that “I reminded myself of past interactions, especially the admission in RNSH MHIPU in 2016 and the complications that followed. Given the diagnosis of Paranoid Personality Disorder then – I would add anxious traits and narcissistic traits (fragile) co-morbid.”
In a discussion about Mr De Tarle’s rejection by Centrelink of his application for disability for support pension, Dr Bell did not raise with Mr De Tarle that fact that he had not had two years of treatment with psychotherapy because “he would dismiss this as he does not believe he has any ‘pre workplace’ issues that need addressing… He said a ‘not neutral’ Commsure psychiatrist wrongly (in his view) tried to suggest his problems preceded the job matters, and this is black and white”.
Summons Documents – Dr G Unsen, Psychiatrist
In a referral letter dated 5 February 2013, Dr Au stated that Mr De Tarle presented “with work-related stress [non workers comp] with long term medication as “Paroxetine hydrochloride 20 mg…1 Tablet, 1 times a day”.
Relevant extracts from Dr Unsen’s clinical practice records are, inter alia, as follows:
22 February 2013 – Doesn’t want to be here. Dr Gave ASIC c’f to avoid stressful situations. They want to send him to their own psychiatrist. Doesn’t like giving out private information. Having a lot of trouble with manager for 2 years - v. negative manager never sees anything positive. Did recent personality Ax - a general online prior to training session… manager doesn’t accept his accusations are wrong and doesn’t defend him in front of others… His work was v. good, but has been going downhill 3-4/12, can’t concentrate, doesn’t know what manager wants, is now unsure of his work, the team is split into people who are preferred & who are not… HR person has been dishonest w. him keeps changing things…
Presenting Complaint: 1yr insomnia… anxiety in the morning… anxious most of the time, no energy, no motivation... harder to get organised, procrastinating… sometimes thinks life isn’t worth living, think less about suicide since ????
Current medication: Eleva (sertraline 100mg – from t in clinic)[25]; sleeping pill A
[25] Supra at 14.
Past psychiatric history: Tried to kill himself April 2012 …..2007 – lost job therefore tried to hang himself, people refused to take responsibili- all felt unfair tried it see what is was like -it was really painful – he felt rejected even though he offered solutions for the benefit to the company profoundly sad -whatever he did seemed pointless.
Diagnosis: Axis -I Major Depression (agitated); Axis II – Personality difficulties, not eassy with others, ? introverted
Management Plan issues: lack of support; Depressive D; Medications
28 February 2013 – In 2007 raised some problems in bank… was told ‘not to rock the boat’ or lose his job. Also pressure from his senior manager… Were claiming he wasn’t working fast enough in regards to the work. They didn’t care if contacts were correct… was on monthly contract… J P Morgan… sent written complaint to HR, seeking guidance stopped being paid …had to sign new contract which was weekly… was actually employed by recruitment agency which outsourced to JP Morgan… left & then was paid but contract was terminated… raised it w Fair Work Ombudsman who said he is owed $15,000 but… its not in the Public Interest to obtain this money… Tried hanging himself [emphasis added]
After JP Morgan… unemployed 6/12… CBA 6/12 temp role… Singapore position Standard and Charted (but they were doing funny things w derivatives), resigned after 3/12 because they were unprofessional then unemployed for 3 yrs… 2010 ASIC
Have suggested Zoloft 150mg[26]
15 March 2013 – Hasn’t been to work for 3½ weeks – feels they are going to leap out at him. Has asked them why he needs to provide results of personality tests… he is on performance review (they have given him reasons but, they are absurd… Medic’n increase has not helped… reduce back to 100mg
5 April 2013 – tried to go to work but couldn’t go through w it… Has taken advantage of Employee Assistance Programme - saw psychologist 3-4 times... Taking Zoloft 100mg Seroquel 25 mg…
23 /2/13 [sic][27] – Employment termin’n lodged claim for unfair dismissal… feels a bit more relaxed, but fluctuating in mood… has increased sertraline to 150 mg - less anxious, some days has energy… has denied current suicidal ideation
20 June 2013 – increase Zoloft
26 July 2013 – ASIC agreed to settlement. Deed of release signed… still has problems with motivation but is bit better with anxiety. Script for seroquel[28]
[26] Prescription dated 28 February 2013 first supplied 22 April 2013.
[27] DHS – Medicare patient History Report: Consultation recorded with Dr Unsen on 25 May 2012 and no recorded consultation on 23 February 2013.
[28] Supra at 14: There is no record of Seroquel (quetiapine) prescribed or supplied at this time.
Dr R Champion, Consultant Psychiatrist
In a written report, dated 21 February 2017, Dr Champion recorded a fairly comprehensive history but commented that when Mr De Tarle was asked to discuss his problems in the workplace, “he tended to describe matters in generalisations and appeared to limit the information provided.”
Dr Champion stated his opinion, inter alia, as follows with emphasis added:
Currently he reports symptoms of depressed mood, poor motivation, disturbed sleep and rumination of difficulties experienced in his employment with ASIC between 2010 and 2013… [T]he history that emerges in part from Mr de Tarle and also from the documents reviewed is that he has been troubled with symptoms suggesting Major Depression reaching back and reportedly commencing 10 years prior to 2006 (GP documents). He has been maintained on antidepressant medication since an apparent reported suicide attempt in 2006 which was related to difficulties he perceived in his employment with J.P. Morgan Bank between 2003 and 2006, and which ended with what Mr de Tarle considered unfair dismissal. Prior to that, he had been employed in France for a number of years and subsequent to that a brief period with an Australian Bank before a brief period of employment in Singapore. It would appear that he had continued to take antidepressant medication and it is reported in the documents that he had psychiatric consultations in Singapore. Between 2008 and 2010 he had been unemployed and receiving unemployment benefits and worked part time and apparently continued the antidepressant medication. It appears that up to this point he had not had any formal psychiatric assessment or treatment.
He joined ASIC in 2010… and worked with them until 2013 and over that period reports perceptions of unfairness, bullying and harassment which caused him to make complaints and to require some unspecified periods off work due to the depressive symptoms… A full review of the documents you have forwarded to me sets out the nature of Mr de Tarle’s complaints in some detail and the response of Comcare through ASIC to investigate the complaints which led to Mr de Tarle being placed on a Performance Improvement Program due to a failure to meet the required work standards. Mr de Tarle denies any poor performance and had protested concerning these matters however the Comcare investigation, which appears to have been systematic, found that ASIC had acted appropriately and the PIP should remain in place. All of these matters are claimed to have led Mr de Tarle’s Chronic Depressive Syndrome to increase and he reports having attempted suicide due to depression in April 2012 leading to admission to Royal North Shore Hospital Psychiatric Unit initially as a voluntary patient but after absconding as an involuntary patient… Following that he had some follow-up however the details are vague. A little later he had come under the care of Dr Unsen, Psychiatrist for a period but ceased after his dismissal from ASIC…
I consider the history and presentation was consistent with the presence of a Chronic Low Grade Major Depression DSM 5, which most likely interfered with Mr de Tarle’s ability to perform work functions at the level at which he seems to have been employed…
Currently he is receiving no formal psychiatric treatment and takes the recommended maximum dose of antidepressant medication which has increased over the last few years to a more substantial dose and since his hospitalisation in 2012, he has also used a major tranquiliser to assist with the sleep disturbance associated with his depressive syndrome.
In terms of prognosis, I concluded that Mr De Tarle, whilst admitting to Psychiatric Disorder and continuing to take long term medication to reduce its effects, has not undertaken formal treatment apart from the brief period under Dr Unsen’s care in 2012/2013[29] and the period/s of hospitalisation.
[29] This refers to be period of 22 April 2013 – 26 July 2013.
In answer to specific questions Dr Champion stated, inter alia, as follows:
Mr de Tarle suffers with Chronic Major Depressive Disorder. The cause of the condition which has been present long before his employment with ASIC, is most likely constitutional… Mr De Tarle views his depression as the result of disturbances in his workplace relationships stretching back to 2009 when he was employed by J.P. Morgan…
I do not consider that the psychiatric condition suffered by Mr de Tarle around 2012 was significantly contributed to in a causal sense by his employment with ASIC. I note however that Mr De Tarle focusses upon his workplace experiences as the cause of his depression. The details which emerge from a review of his detailed complaints to his employers via email, do not suggest that employment factors played a role in his illness but rather he was a person suffering with a Depressive Disorder in the workplace which may have caused him difficulty in functioning, the nature of that disorder was Chronic Major Depression most likely with relapsing intensity. I note that he ceased taking the antidepressant medication,[30] which he had previously used for many years, when he joined ASIC, making him more vulnerable to increased depression…
At present the prognosis is poor however it could be improved should Mr de Tarle elect to undertake regular psychiatric treatment… The constitutional disorder, may, with treatment, move towards remission however Chronic Major Depression is a recurrent disorder. The tendency to recur can be mitigated significantly by ongoing psychiatric treatment…
The Chronic recurrent Depression troubling Mr De Tarle has been present since at least 2006 and had been receiving some treatment for that condition until he commenced employment with ASIC in 2010. It seems likely that ceasing the antidepressant medication he had used for a number of years… may have intensified the level of the disorder sustained whilst working for ASIC…
[30] Supra at 14: This is consistent.
On 2 March 2020, Dr Champion was provided with a number of additional documents which included a report of psychiatrist Dr McClure dated 27 November 2019. In a supplementary report dated 8 March 2020, Dr Champion stated, inter alia, as follows:
Dr McClure provides a comprehensive detailed report outlining a similar background to the history provided to me by Mr de Tarle when I examined him, almost 3 years earlier…
Mr de Tarle’s current medication is reported as Sertraline 200mg each morning…and he was started on an additional dose of long acting Quetiapine (a major tranquiliser) each night, and this has calmed him down...
Matters concerning his perceived difficulties whilst working with ASIC are set out… and are, by and large, consistent with the information given to me…
Dr McClure comments “In my view your client has come to ASIC with a pre-existing Mood Disorder associated with anxiety… [and] on the basis of history elicited to date… considered the appropriate diagnosis was Major Depressive Disorder, Chronic and Recurrent and also considered there was evidence of Obsessional and Narcissistic Personality Traits.
Comment: Dr McClure had recognised personality traits but apparently not considered the traits sufficient to diagnose the presence of Personality Disorder. I agree that problems in the area of personality function are likely to be present as factors underlying Mr de Tale’s [sic] chronic recurrent Major Depression. Although Dr McClure has not had the opportunity to review my report, his diagnostic conclusions are the same as the diagnostic formulation provided in my initial report…
Dr McClure considered that it was possible that workplace events exacerbated his condition and outlines areas which he considers may have contributed to that [and]… also notes that Mr de Tarle may have failed to cope with the complexity and volume of work from early stage because of cognitive difficulties associated with the (pre-existing) Major Depression [and]… also noted that Mr de Tarle may indeed have become psychotic (presumably paranoid) in the context of his deteriorating cognitive function leading to misinterpretation of relevant events.
Comment: Dr McClure appears to be indicating that Mr de Tarle’s mental health declined as a consequence of his inability to manage his work due to the presence of his pre-existing psychiatric disorder possibly associated with (paranoid) misinterpretation of relevant workplace events (poor performance reviews, performance improvement programmes and the termination of his employment). This view is consistent with the opinion provided in my initial report regarding the nature of causation.
After discussing prognosis, Dr McClure suggests that it would be helpful to have access to my initial report…
On the basis of my review of the further documents… I find no reason to alter any of the opinions set out in my initial report. I consider the diagnostic conclusions and opinions provided by Dr McClure to be consistent with, and confirmative of, the opinions expressed in my initial report.

On 25 March 2020 Dr Champion was provided with a number of additional documents from the Northern Sydney Local Health District and Royal North Shore Hospital (RNSH). In a supplementary report dated 28 March 2020 Dr Champion stated, inter alia, as follows:
2016 Admission RNSH MHU
Mr De Tarle was admitted to RNSH mental health unit on 26/6/16 after sending emails with threats of suicide to several Government Agencies on 22/6/16, in relation to his claims of being a (persecuted) whistle blower, and then being missing from his home for 4 days eventually returning home and being brought into the hospital by the police…
During the admission he was guarded and unwilling to discuss feelings or personal thoughts. He was reported as being difficult to engage and” “highly paranoid “about giving information he feared would be used against him in his compensation claim as well as having symptoms pointing toward a depressive episode…
Comment: …Problems in personality function are likely to be the significant factor in Mr De Tarle’s chronic mental health problems which commenced long before his employment with ASIC and have continued to the present many years after his employment with ASIC had ceased.
2016/2019 Lower North Shore Community Health
30/7/18
NSLHD, Assessment following Mr De Tarle attempting to obstruct work on other units at his residence claiming his car had been scratched. Police were called and reported he was suspicious of workmen on the site. Diagnosis, Paranoid Personality Disorder recorded.
5/8/19
LNSCH MH progress note.
…[P]sychiatric (5 page) report by Senior Medical Officer, Dr David Bell, dealing with a voluntary outpatient presentation.
The report notes the following:
1Diagnosis of Paranoid Personality Disorder
2Presented with stress and anxiety, problems dealing with emotionally draining legal/redress processes.
3Has 3 concurrent AAT cases (2 with Centrelink) re rejection of DSP and rejection of new start as well as one against ASIC for claimed unfair dismissal, plus JP Morgan a past workplace
4Also has a current MVA insurance case.
5Dr Bell reports that Mr De Tarle had made a complaint to HCCC against the RNSH re. medical records issues…
6The 2018 contact with the service when there were police concerns that he was paranoid (see above)
7Frustration with Psychiatrist… not providing a report at his request for legal matters.
8…
9Medication issues discussed: he was on a maximum dose of Sertraline (antidepressant) also on Seroquel (antipsychotic)
10…
11Denied suicide intent, reports intermittent suicidal ideation.
12Reporting the mental state at presentation Dr Bell noted; not agitated, sat comfortably, pent up anxiety/anger, mood euthymic, did not look tired, not yawning, no bags under eyes, well groomed, he was sharp.
13Dr Bell provided a certificate to say Mr De Tale had been too anxious to attend an AAT hearing last Tuesday.
Comment: Point 12 (above) suggests that presentation (essentially normal) was inconsistent with current complaints, and that point 13 (above) may have been the main objective of the consultation. Dr Bell, who reports an earlier contact with Mr De Tarle, at the time of the 2016 admission to RNSH, noted that secondary gain may play some role in Mr De Tarle’s presentations.
Dr Champion goes on to express the following opinion:
My review of the further documents does not cause me to alter any of the opinions expressed in the initial report but caused me to extend the diagnosis provided in the initial report.
Information in the further documents provides evidence that the underlying personality traits/dysfunction, referred to by both Dr McClure and myself in our respective reports, are at times, of a dimension indicating that an additional diagnosis of Paranoid Personality Disorder is likely to be appropriate. Using the useful, but now superseded, Multidimensional Diagnostic Formulation of DSMIV this would be an Axis 2 Diagnosis, contributing to the Axis 1 Diagnosis of Chronic Major Depression. DSM5 would consider the Paranoid Personality Disorder diagnosis to be a Comorbidity.
Dr McClure – Consultant Psychiatrist
In a report dated 27 November 2019 on page 1 and 5 December 2019 on all subsequent pages, Dr McClure stated, inter alia, as follows:
…There is a previous history of symptoms of a psychological disorder and subsequent treatment. When your client starting working for ASIC in 2010, he was on an antidepressant medication, Paroxetine, 10 mg daily he thought (in fact the dose has gradually increased to 40mg daily) managed by his general practitioner, and was changed over to Sertraline in 2012.[31]
[31] Supra at 14.
According to your client, when he started at ASIC he was “completely functional and normally motivated” and had no problems with the work…
There were, according to Mr De Tarle “certain events” in the workplace leading to “difficulties”. He felt increasingly “powerless”. Around April 2012 he developed symptoms of insomnia, anxiety and depression [and]… felt “so sick of the events at work” that he decided to commit suicide. He drove to an isolated reserve in Northbridge… taking the hose from his vacuum cleaner, he attached it to his car exhaust [and]… he took all the tablets available to him and turned on the car ignition. He fell asleep.
Unaccountably, the following morning Mr De Tarle woke up in his own bed with his car in the garage…
That afternoon Mr De Tarle went to the Emergency Department of the “Royal North Shore” Hospital… [H]e saw a mental health Clinical Nurse Consultant (CNC) and a medical officer. Between interviews he left… went home and went to bed.
During the night… the police arrived and took him back to hospital. He was admitted… from 18 -23 April 2012. His antidepressant was changed (to Sertraline) and he was also started on an “as -needed” hypnotic.
Your client returned to work perhaps two weeks later. This was his first instance of sick leave in any job, he says.
However there were continuing difficulties in the workplace…
There was an “offsite” review conducted by an external consultant…
Mr De Tarle states that nothing changed at work and he continued making complaints to his supervisors and escalating” to more senior staff, both within and outside his team. He was in fact, he says, “blamed” for causing the trouble by his manager… Management asked him to sign a document acknowledging that his performance was unsatisfactory and he had to improve it, however he declined…
During his last 3-4 months there was “constant pressure”. He was asked to sign the document (above) on a daily basis, acknowledging that his behaviour needed to improve. He says that he was directed to reveal the content of confidential psychiatric or psychological assessment[32]… He says he spent months writing complaints and escalating them.
During his last three or four months Mr De Tarle believes he was taking increasing sick leave… It was “hard to get out of bed”… [and] there were thoughts of suicide…
Despite his symptoms Mr De Tarle was keeping up “a front”. However his condition deteriorated when his employment was terminated before any “whistleblower” report was released…
There were daily suicidal thoughts. He made two attempts by hanging (one at North Head, the other at Middle Head)[33] but aborted this as it was quite painful…
In 2015[34] your client was hospitalised again at the Royal North Shore hospital… He remained on Sertraline but the dose was increased…
Current Treatment
Mr De Tarle is taking 200 mg Sertraline each morning… He is not currently seeing a psychiatrist or psychologist…
Current Symptoms
While he still needs medication… your client believes that he has gradually improved over the last six years…
[32] There is no evidence before the Tribunal to support this claim. It is a misrepresentation of the circumstances of a team exercise using the DISC assessment tool.
[33] There is no other evidence to support this claim.
[34] Admitted to RNSH 26 June 2016.
Following a review of other provided medical documentation, Dr McClure states, inter alia, as follows:
Diagnosis
There was a depressive episode in 1997, from which your client reportedly recovered. He developed depression again in 2006-07 in the context, it seems, of difficulties at work. There were issues of “non-compliance” at JP Morgan and “falsified” reports at the New York branch of the Federal Reserve.
Mr De Tarle was still being treated for depression at the time he started work with ASIC in 2010. There was a lift in his mood at that stage as he was no longer unemployed, however after unsatisfactory performance assessments and eventually a Performance Improvement Programme (PIP) he redeveloped symptoms of anxiety and depression and, despite an increase in his antidepressant dose (and a change to a different antidepressant), his symptoms persisted. His employment was terminated when, in the employer’s view, he failed to provide a satisfactory explanation of his non-attendance at the workplace.
A psychological assessment (? personality questionnaire) had found Mr De Tarle to be a “quiet”, unassuming person who likes to work “in the background”. He acknowledges he is perfectionist and procrastinator, however his managers found fault with his alleged lack of attention to detail and inability to become a “team player”. They also advised him to listen more carefully to instructions from his supervisors.
In my view your client came to ASIC with a pre-existing mood disorder associated with anxiety. There were longstanding personality vulnerabilities of an obsessional and narcissistic nature: he is a perfectionistic man who checks everything, procrastinates, ruminates and can “keep up a front”. When his employment was terminated, he could no longer maintain the “front” of doing productive work, and decompressed spectacularly. His persistent belief that he could “make ASIC see sense” suggests a degree of grandiosity.
The question also arises whether Mr De Tarle is paranoid, and possibly even psychotic. Among the documents there are entries suggesting that he has spoken of falsified allegations (made by managers) and a conspiracy against him… The records of [his] second admission to the Cummins Unit at Royal North Shore Hospital would help to provide me with a deeper understanding of his symptoms.
Provisionally, based on the history elicited to date and Mr De Tarle’s mental state at interview, the diagnoses are:
oMajor Depressive Disorder, chronic, recurrent.
oObsessional and Narcissistic Personality traits…
Causation – Substantial Contributing Factor
Causation is ultimately a matter for the Tribunal. An independent medical examiner is not an investigator of the facts. Mr De Tarle, at the time of starting work with ASIC, had Major Depression under treatment. It is certainly possible that workplace events exacerbated his condition. These events centred on the Commission’s perceived failure to follow its own procedures… and its performance evaluations…
Your client further believes that he has not had access to the documents for independent review processes that he has requested of ASIC. Termination of employment was an additional, severe stressor…
It is also possible that Mr De Tarle, though competent and capable, was failing to cope with the complexity and volume of his work at ASIC from an early stage because of cognitive difficulties associated with Major Depression. This would have then set up a “vicious cycle” wherein his mood and his ability to process information deteriorated in tandem…
In November 2020, McClure reviewed Mr De Tarle and provided a supplementary report dated 10 November 2020. He noted that Mr De Tarle was unemployed but receiving “Job Keeper benefit” [sic] and also had a “hobby business… on the side” importing and distributing hardware for sailing boats.
Dr McClure then revisited certain aspects of Mr De Tarle’s background and employment history and stated, inter alia, as follows with emphasis added:
Mr De Tarle was first prescribed an antidepressant by his GP, Dr Jeremey Choi [sic] …. in November 2006,[35] when he commenced Paroxetine 20mg daily. The dose was increased on 4 September 2009 to two tablets (40mg daily)[36]…
[35] Mr De Tarle’s DHS Individual Prescribing History reveals that Dr J Choy first prescribed paroxetine on 23 December 2004 (30 tabs - 2repeats) then again on 28 June 2005 (30 tabs - 2 repeats) and 3 November 2005 (60 tabs - 5 repeats).
[36] Ibid: the dose of paroxetine appears to have been increased on 28 January 2009 and reduced on 4 September; increased on 13 January 2010 and not changed until 5 August 2011 when the last 60 tabs were supplied.
I have previously referred to Dr Choi’s reports of 10 March and 19 March 2009 which indicate “stress and anxiety from work issues, and this has worsened over the last few months”[37]. Your client was “referred for counselling in 2007”.[38]
[37] I was unable to find these reports in the supplied documents.
[38] September 2007 – Mr De Tarle did not stay for the appointment with Mr Camacho.
Your client explained that in 2006 he had been working for JP Morgan merchant bank on monthly contracts. He had “raised issues” regarding standards which had not been met. He says, however, that the “traders didn’t like it” and his monthly contract was not renewed…
Mr De Tarle next joined the Commonwealth Bank and worked there for 4-6 months… The Standard Chartered Bank of Singapore contacted him and offered him a position there. This would come with “extensive training and education”… CBA then offered him a promotion to head of department, which was a very tempting offer, however …he preferred the opportunity of working overseas and the additional training offered.
However, within the first week, his manager… told Mr De Tarle that he was “the most experienced person in the section” and had to run the training himself. He says he had no problem doing this, but was very disappointed…
Mr De Tarle advised that he left Singapore in early 2008 because of his continuing dissatisfaction. There were issues with his salary not being paid. The bank had misled him about the educational opportunities… He left Singapore three months after resigning… and came back to Australia, where he began job-seeking immediately.[39]
[39] GP records: 25 March 2008 -working in Singapore, back in syd 1 week; 8 October 2008 - left job… in singapore… stress b/c ongoing leg prob.
He approached the Commonwealth Bank but the position previously offered was no longer available… He took on casual work… as a sales assistant… in sailboat equipment…
The Index Episode of Illness
Mr De Tarle started work with ASIC in 2010…
According to your client he came under increasing “pressure” from his management from approximately six months[40] after starting his position. He says that he always “like(s) things to be done properly… (however the Commission’s functions) weren’t being done by the rules and procedures’ [sic] established. ASIC seemed to “change the rules as they went along.”
[40] For the first six months, Mr De Tarle was under probation.
Mr De Tarle submitted written complaints “a number of times” regarding the manner in which he felt his supervisors were treating him. He says he followed Australian Public Service (APS) procedures… he alleges ASIC did not… He would escalate his complaints. He says that higher levels of management… were aware of his concerns about harassment and bullying, and compliance issues in his work area… [H]e spent considerable time attempting to resolve issues, however he felt his manager and “HR” were “dismissive”[41]…
The “pressure” and “harassment” Mr De Tarle was feeling progressively increased. He was at the same time, becoming more depressed. At first he was not “aware of… (deterioration in his) mental state.” There had never been any performance issues anywhere he had worked before[42]…
The entire staff did confidential personality inventory tests, whose purpose, according to Mr De Tarle was to assist ‘HR’ and management with the handling of complaints of bullying and harassment by supervisors.[43] In his own case, the inventory confirmed that he is a quiet and meticulous man, to whom maintaining standards is important. He prefers to work alone…
Mr De Tarle’s work performance came under scrutiny and he was placed on a performance improvement programme in late 2012. He believes that the employer’s justifications for this were “absurd” rationalisations… He states… that he never received specific advice on the kind of improvement needed. He saw management’s complaints against him as vague and impressionistic, whereas his complaints were documented in detail…
Your client, as you know, had been admitted to the psychiatric unit on Royal North Shore Hospital on 18 April 2012[44]… He presented himself to the Emergency Department, requesting to see a psychiatrist, and reported that he had attempted to kill himself the previous night…
He told the Clinical Nurse Consultant in the Emergency Department inter alia that “his manager is conspiring against him, making false allegations re his work performance. He describes being a ‘whistleblower’ six years ago against corruption which he claims has gone to the Federal Police and Commonwealth Ombudsman. He was unemployed for three years, he claims, as a result. [This does not actually accord with the history of employment provided by Mr De Tarle today.][45]
After discharge, with his medications changed,[46] he had follow-up with a psychiatrist privately… (possibly Dr Gabriella Unsen). The sessions were expensive so he stopped attending.[47]
Another GP, Dr Au, referred your client back to Dr Unsen in February 2013.[48] His medication antidepressant medication was now Sertraline 100mg daily.[49]
On 20 June 2013 (after termination of his employment)… [t]he Sertraline dose was increased. He started on a low dose of the major tranquiliser Quetiapine, 25 mg at night, for sleep[50]…
In either 2014 or 2015 Mr De Tarle says that he readmitted to the Royal North Shore psychiatric unit,[51] having “disappeared for two or three days”… He had tried several times to hang himself but this proved to be too painful to continue. He thinks he also may have made an attempt by carbon inhalation.[52]
[41] The extraordinary amount of documentation before the Tribunal clearly demonstrates ‘that senior management” were not “dismissive” of Mr De Tarle and expended significant time and an effort in dealing with his complaints and allegations in accordance with ASIC policy.
[42] This is not consistent with other evidence before the Tribunal.
[43] There is no evidence before the Tribunal to support Mr De Tarle’s characterisation of the purpose of the Team exercise – cf. paragraph 24 above.
[44] There was no evidence that ASIC was ever aware of the reason for admission… A medical certificate from the RNSH dated 20 April 2012 stated “has an inpatient from 18/04/2012 to still is” with no mention of reason for treatment.
[45] There is no evidence regarding employment between October 2008 and 2010 prior to being employed with ASIC.
[46] Medication on discharge: 23 April 2012: Olanzapine 2.5 mg nocte, Paroxetine 20 mg mane (7 day supply).
[47] There is no documentary evidence that Mr De Tarle was seen by Dr Unsen or any other psychiatrist at that time.
[48] First consultation was on 22 February 2013.
[49] cf. supra at 14; supra at 8: Prescription date: 22 April 2013 – Date of first supply: 22 April 2013.
[50] Ibid: no record of medication being supplied before 15 February 2017.
[51] Admitted on 26 June 2016 - discharged on 9 July 2016.
[52] There is no reference to this in the hospital medical records – Mr De Tarle may have been referring to incidents in 2012.
Dr McClure expressed his opinion, inter alia, as follows:
…Your client developed an exacerbation of a pre-existing chronic Major Depressive Disorder during his time with ASIC. His condition has improved with time and he is now in remission of his Major Depression.
Under DSM-5 (APA, 2013) your client has the additional diagnosis of a Persistent Depressive Disorder.
It is also likely (as previously advised) that your client has longstanding maladaptive personality traits of a mostly obsessional nature…
Attribution of Incapacity
Your client unfortunately has a recurrent pattern… of becoming unwell in the context of conflict between his standards and the requirements of his supervisors in the workplace in the finance industry. Such dissonance creates considerable conflict, considering Mr De Tarle’s somewhat rigid rules-bound cognitive style… diminishing cognitive flexibility and then increased conflict with supervisors, leading ultimately to the overt appearance of a recurrence of Major Depression…
I do consider that your client’s experiences at ASIC recapitulate this pattern of conflict between your client’s standards and the (perceived) failure of the organisation to meet its own standards. Your client has attributed his increasing symptoms and dysfunction to work-place related issues; however considering his recurrent interpersonal difficulties (as revealed in the medical records) clearly the situation is not so “cut and dried”.
I attribute Mr De Tarle’s incapacity partially to the injuries at work[53] and partially to his constitutional condition.
[53] It is not clear what Dr McClure means by “injuries at work”.

In November 2020, Dr McClure was asked to comment on the reports dated 21 February 2017 and 24 February 2017, that had been provided by Dr Champion. I note that it appears the medical reports of Dr Champion dated 8 March 2020 and 28 March 2020 were not provided.
In a supplementary report dated 10 November 2020, Dr McClure noted that Dr Champion had elicited additional information and had considered that Mr De Tarle’s “chronic recurrent Major Depressive Disorder was present over many years, at least since 2006 and probably before” and was of the opinion that “[e]mployment with ASIC was not a substantial contributing factor to Mr De Tarle’s Depressive Disorder.”
Dr McClure stated, inter alia as follows:
I agree that the aetiology of Major Depressive Disorder is largely genetic /biological; however there is almost always a specific precipitant or “trigger” to recurrence. I cannot comment on Mr De Tarle’s description of widespread “culture” of “bullying and harassment” at ASIC. However being placed on a performance improvement programme and having his concerns (which to him were quite serious) dismissed, were significant narcissistic blows. They contributed to Mr De Tarle’s declining mental state and subsequent suicide attempts…
Furthermore, your client’s supervisors failed to take into account the effects of performance evaluation/amelioration measures on Mr De Tarle’s increasingly fragile mental state… Workplace events have contributed in part to Mr De Tarle’s depressive recurrence…
EVIDENCE AT THE HEARING
Mr De Tarle
In his evidence-in-chief, Mr De Tarle confirmed much of the evidence that has been outlined above with respect to his employment and medical history prior to 2010 with some minor inconsistences that are not particularly relevant for present purposes.
Mr De Tarle told the Tribunal that his GP started him on paroxetine in 2006 because he “was suffering probably a little bit of anxiety and a bit of stress” in regard to his work.
Mr De Tarle stated just before he started work with ASIC in 2010 his mental state was “fully functional”. He described his relationship with his first manager during the probation period, Mr Krslovic as “professional”. The relationship with his subsequent permanent manager, Mr Grech who was “a fairly likeable person” was described as “[g]enerally… good” but they had differences over some matters. He said that:
Both Mr Grech and Mr Krslovic came from a stockbroking background… I’m not sure if you're aware stock brokers tender [sic] to work the floor, they tend to be fairly direct and aggressive people. It's a different style. The relationship remained professional. We tried as best as we could.
When asked about his first performance appraisal, Mr De Tarle said that when he arrived he found that his rating “had already been decided when normally the rating is an opportunity to first be given to the person being rated to have a discussion about their performance… I found that many of the achievements, which I believed merit some recognition weren't recognised at all.” When asked whether he had “a good understanding of what they expected you to improve or not”, he said he did not.
Mr De Tarle explained that, in the weeks before his dismissal, he had been having difficulties at work and was taking more periods of leave. He said:
…the difficulties were mental. I was dreading to go to work every day. I feared what sort of reprimands they would say. I'd raise issues in regards to some what I considered absurd reprimands. I felt like they would just invent something else that day… I was extremely anxious by that stage, having trouble sleeping, I was taking a very high level of a new anti-depressant, Sertraline. I really didn't know what to expect from work, from Mr Grech.
When asked about his medication he said that from mid-2012 his medication was changed by the psychiatrist at the hospital and that he “was going from a relatively low dose of Paroxetine which was 20 milligrams on a daily basis, to 100 milligrams of Zoloft” and “[b]y the time I left, it then increased to 200 milligrams”. He explained that after an attempted suicide in April or May 2012, he was admitted to RNSH for about one week and that was when “the medication was changed to Paroxetine, which is also called Zoloft [sic]”.[54]
[54]Clearly Mr De Tarle was confused about his medication at that time. RNSH records stated that he was discharged on paroxetine 20 mg per day with a 7-day supply from the hospital pharmacy.
When asked about the attempted suicide in April 2012, Mr De Tarle explained that:
[my] mood was slowly going down due to events at work… and… on the day in question I left work I was extremely frustrated. I was sick and tired of the behaviour and certain stuff at ASIC or their refusal to discuss any concerns I have. I just wanted it to be all over. That was my state of mind. So I would say it was a fairly sudden onset for something I hadn't really thought about before, and that's when I tried to end my life.
When asked about any discussion he had about changes in his medication, Mr De Tarle said that in 2010 he had a discussion with his GP about coming off his medication. He said that he was considering stopping the medication because he was “already on almost the minimal dose of 20 mg”[55] but in the end, he did not stop the medication.
[55] 20 mg per day is the usual starting and maintenance dose; 17 August 2010 - prescription paroxetine 40mg per day
In cross examination, when asked by counsel a series of questions about his antidepressant medication prior to 2010 and during his employment with ASIC, Mr De Tarle was uncertain, could not remember and said he wanted to rely on medical records. When asked specifically if, in fact, he had ceased taking Aropax while working with ASIC, he said
I don’t believe so. I think I was considering coming off it. However, to come off it would have been a process of several days. It’s not something you can just stop overnight… I don’t believe I ever came off Aropax. That would be in the notes, my medical records. I only believe that it was discussed, my eventually coming off the dose.
When the Applicant was asked why he told Dr Champion that he had ceased taking medication while at ASIC, Mr De Tarle said “Look, certainly, I can’t remember details… of the meeting with Dr Champion, which was in 2017… I don’t remember saying I was - I had come off it, or was coming off it.” When asked to consider the fact that the last recorded prescription in a General Practice noted was dated 15 September 2011 with no further prescriptions until after he had been admitted to Royal North Shore Hospital (RNSH). Mr De Tarle said “a prescription can last for six months” and asserted that he “continued [the] medication, I didn’t stop.”[56]
[56] cf. supra at 14.
The remainder of lengthy cross examination concentrated on the enormous number of emails, reports and other correspondence in regard to Mr De Tarle’s work performance, his complaints and allegations about performance ratings, the Performance Improvement Programme (PIP) and his team and HR managers as well as his leave and the outcomes of the various investigations.
I do not intend to document the details of this lengthy cross examination. However, the cross examination did reveal that there had been concerns about Mr De Tarle’s work performance throughout the whole period of his employment with ASIC.
Concurrent Evidence
At the hearing, Dr Champion and Dr McClure agreed to give concurrent oral evidence. As a result of their consultation prior to the hearing, they had also prepared a brief statement with respect to questions that had been suggested by the Tribunal.
The statement is as follows:
Questions to be addressed:
Agreed diagnosis: Chronic (Persistent) Major Depression associated with underlying personality Dysfunction/Disorder.
1Whether what was happening in 2012/13 was (consistent with) the natural history of the illness evident in, and since, 2006.
Dr McClure:     It is consistent with the natural history of the illness previously evident.
Dr Champion:    It is consistent with the natural history of that illness (chronic, relapsing, often with increasing in severity over time)
2Whether the workplace was causing Mr De Tarle’s psychiatric condition in 2012/13, or whether his psychiatric condition at that time was causing Mr De Tale’s [sic] workplace problems.
Dr McClure:     The situation is not either/or; the two processes have interacted. The current relapse began following interaction with supervisors. Depressive symptoms increased and Mr De Tarle’s work performance deteriorated, leading to his negative assessments and then being placed on the performance improvement programme. The pre-existing constitutional condition, on the balance of probability contributed to a greater than did the events in the workplace.
Dr Champion: On the basis of the nature of the illness, and the history of the similar employment problems associated with same illness, several years prior and up to ASIC employment, it is more probable that the illness was causing the work problems in 2012/2013 rather than vice versa. The continuation of the illness, and the need for treatment through to the present, 6 years post ASIC employment is also consistent with that probability.
Oral Evidence
Dr Champion started by saying that both he and Dr McClure had simply recorded in earlier reports that there was a presence of personality factors but now, after reviewing further documentation from RNSH, there was no doubt that “at times, paranoid personality disorder was likely to be an appropriate diagnosis”.
In response to a question by counsel as to whether Mr De Tarle’s work history since 2006 was consistent with “an increase in his underlying depressive problems”, Dr Champion emphasised the nature of severe chronic depressive disorder “which tends to increase over time and increase in severity with a number of occasions on which one experiences exacerbations of it” and that this is consistent with the history that he had received and set out in his report.
Dr McClure agreed that Mr De Tarle’s depressive condition had progressed and suggested that his work capacity “has very much reduced compared with before ASIC”.
Both doctors agreed that Mr De Tarle’s “depression has worsened over time” which is consistent with the “natural progression of the type of disorder that we agree that he has which is chronic major depression, and associated personality difficulties.”
In response to a question in respect of Mr De Tarle’s treatment over time, Dr McClure said, inter alia, as follows:
…I don’t think his response to treatment has been great… therefore his condition has progressed… I think more intense treatment would have… served him well… and that that [sic] at the minimum, his regular engagement with a treating psychiatrist either through the public sector or in a private capacity, perhaps with or without at various times a psychologist to look at individual therapy… he does try and interact and is difficult generally, and he would be for that reason be a somewhat harder patient to treat…
In response to the same question Dr Champion said, inter alia, as follows:
Well, I agree. I think that had Mr De Tarle received ongoing treatment probably from 2006 through to the present, his condition may well have been improved… So there is a question of the nature of the treatment… From prior to his employment with ASIC he was treated with… an SSRI antidepressant, Aropax, which is quite reasonable by his general practitioner… that went on for a considerable time, and after his admission to North Shore his medication was changed to a different SSRI medication[57] which he has continued with since… it should have been to a degree helpful, but it’s not just medications which form psychiatric treatment. There is interaction with a psychiatrist… which adds to the benefit of the medication considerably, and that hasn’t been occurring…
…the lack of treatment… will not change the natural history of the progression of his disorder.
[57] cf. supra at 54 and 55.
Both doctors agreed that because of Mr De Tarle’s “hypersensitive and paranoid personality factors” he was likely to “overreact to things compared to the average person”, “to misinterpret things” and “to develop perceptions of persecution” and misinterpret certain actions as bullying.
In response to a question put by Mr De Tarle’s counsel to consider that, shortly before employment with ASIC, Mr De Tarle’s general practitioner had suggested to him that his medication would possibly cease entirely and whether this was consistent with a lower level of psychiatric problems at that time, Dr Champion stated, inter alia, as follows:
…the history Mr De Tarle gave to me on examination was precisely that, that he’d ceased. He was feeling well when he joined ASIC and while at ASIC things were going okay, but he had ceased the medication he’d been on for the previous three years… my comment would be that it was poor advice from the general practitioner because a person with a history of requiring antidepressant medication over that time is well-advised to continue antidepressants for several years… as a prophylactic to prevent recurrence, whereas people who cease their medication are much more likely to experience recurrence… providing the medication… was being continued, one would think that the depressive disorder had perhaps come under control and being off work over that time when - perhaps less stressful work Mr De Tarle had had an opportunity to commence back on to a more balanced mental framework. But I think that it was a vulnerability to ceasing medication altogether, particularly when one is taking up the challenges of a new full-time position of a… quite reasonable responsibility.
In response to the same question Dr McClure stated “the De Tarles also told me that at the time he… joined ASIC he was functioning normally. His image was good. I did not however get the history from him. He didn’t tell me that he’d stopped medication. It was my understanding that in fact he was continuing that.”
In a question, from counsel for the Respondent, Dr McClure agreed that he had been given a history by Mr De Tarle that , prior to commencing at ASIC, he was on a low dose of Aropax about 10 milligrams. When asked to assume that the records of Mr De Tarle’s treating GP show that at the time he commenced at ASIC, he was on a dose of 40 milligrams of Aropax daily, and that on each occasion when he was prescribed it during the course of his employment at ASIC, the dose remained the same, Dr McClure said that “40 milligrams… is pretty much the maximum recommended, although psychiatrists do sometimes prescribe higher doses… It’s a high - it’s not a low dose.”
Dr McClure agreed with the proposition put by the Respondent’s counsel that if Mr De Tarle “did cease taking that medication at some stage during his employment with ASIC that may have intensified the level of depressive disorder he sustained while he was working there”.
Dr McClure agreed that Mr De Tarle had told him that “there had never been any performance issues anywhere he’d worked before”. When counsel described Mr De Tarle’s employment history prior to ASIC as recorded by his GP and Dr Unsen, Dr McClure conceded it was “a different account altogether”.
Dr McClure was asked to explain his comment in one of his reports that Mr De Tarle’s “supervisors failed to take into account the effects of performance evaluation, amelioration measures on Mr De Tarle’s increasingly fragile mental state” in light of the fact he had never disclosed the existence of his mental health issues to his employer. Dr McClure stated that:
The history of the previous mental health condition or the absence of such history doesn’t exclude the possibility of a worker having a stress reaction in the context of increasing performance pressure. That would be something I would think that Mr De Tarle could be expected to express to his supervisors or that they may have observed, in their interactions with him.
When Dr McClure was asked whether he had any basis for asserting that Mr De Tarle’s supervisors observed his increasingly fragile mental state, he conceded that “I don’t have evidence that they did, no, and I don’t have evidence that his behaviour or his manner changed over time.”
CONSIDERATION
It is clear from the evidence before the Tribunal that Mr De Tarle has suffered severe chronic major depression complicated by a comorbid personality disorder for more than fourteen years. During that time, he appears to have suffered recurrent episodes with increased symptoms of depression including two aborted suicide attempts and one episode of threatened suicide.
Mr De Tarle has been on various doses of antidepressant medication since 2004 and currently continues on a maximum dose of sertraline. However, during this time he has had limited psychotherapy.
Mr De Tarle contends that, during his employment with ASIC, he suffered an aggravation of his pre-existing psychiatric condition that was contributed to, to a significant degree by his employment. This contention appears to be based on a firm belief that, prior to his employment at ASIC, he was “problem free” and that the circumstances he experienced at ASIC caused his psychiatric condition to get worse.
This belief is demonstrated in his written statement, dated 21 February 2019, where Mr De Tarle stated that “prior to my beginning employment at ASIC I was free of any medical condition which could impact my work at ASIC”. He supports his claim by his own response, of ticking “no” to the question as to whether he had any “pre-existing injuries or medical condition(s)” in the ASIC Commencement Form.
Arguably, his failure to declare that he suffered from depression and was on, and had been for some time, on antidepressant medication, could be seen as “wilful and false representation” as per Section 7(7) of the SRC Act. However, as this has not been addressed by either party, for present purposes, I will not consider this any further.
Mr De Tarle’s belief was also demonstrated by Dr Bell. In his review of 5 August 2019, where he noted Mr De Tarle “does not believe he has any pre workplace issues”.
During his employment at ASIC, it appears that Mr De Tarle was having problems with his managers and his work performance from the probation period until his dismissal and resignation. It appears that he had a perception of his own abilities and performance which was not always shared by others. This pattern of difficulty was similar to his described experience with previous employers.
It is clear from the available evidence that Mr De Tarle was unhappy with his performance ratings and disputed the need for performance management, despite considerable effort by ASIC senior management to provide support and assistance.
Mr De Tarle’s method of dealings with his problems was to complain, make allegations and find fault with the approach taken by ASIC senior management which resulted in a large amount time and effort being spent with email correspondence, reports and investigations, with an overall disappointing outcome.
The impact of Mr De Tarle’s psychiatric condition on problems he experienced at work is unclear. What is clear, however, is that ASIC was never informed that he suffered a significant mental health condition. None of the medical certificates, including the certificate from RNSH in April 2012, that Mr De Tarle had submitted in the course of his employment, mentioned any mental health issues.
On 23 January 2013, Mr De Tarle provided a medical certificate from Dr Au which stated that Mr De Tarle “must avoid any stressful situations”. This prompted ASIC HR to try and arrange for a psychiatric assessment to see if Mr De Tarle was fit for duty and what duties he could perform. This was successfully resisted by Mr De Tarle.
The consensus of the expert medical opinion appears to suggest that Mr De Tarle’s pre-existing depressive condition had progressed during his employment with ASIC.

The first indication of a possible change in Mr De Tarle’s mental health was his admission to RNSH in April 2012 following an aborted attempt at suicide. The second indication was Mr De Tarle’s increased use of leave in late 2012 and his subsequent failure to return to work in early 2013.
The cause of these changes in Mr De Tarle’s mental health is, in my view, unclear because from 15 September 2011 to 6 December 2012, apart from the period of admission in RNSH, there is no record of any face-to-face consultation at his usual general practice or any other general practice.
Mr De Tarle claims that the change in his mental health was caused by the problems he was having at work, particularly the performance assessment process and the commencement of the PIP.
I note there is evidence before the Tribunal of certain issues that may have contributed to the change in Mr De Tarle’s mental health. However, as these issues have not been raised or tested by either party, for present purposes, I do not intend to speculate any further.
In my view the most relevant issue is the fact that Mr De Tarle’s DHS-Individual Prescribing reveals that the last prescription for paroxetine was supplied 5 August 2011 and that there is no record of any other antidepressant, or any other medication, being supplied until sertraline was supplied on 22 April 2013 in respect of a prescription provided by Dr Unsen, dated 28 February 2013.
As the only access, in Australia, to subsidised antidepressant medication is by prescription via the Pharmaceutical Benefits Scheme, the only conclusion I can make is that at some time after August 2011, Mr De Tarle stopped taking his antidepressant medication and did not start with the new medication until on, or after 22 April 2013. The reason for Mr De Tarle’s cessation of his long term antidepressant is unclear.
I note that, on 28 January 2009, Dr Choy recorded that Mr De Tarle “Has felt paroxetine 1.5 tabs day not as affective re anxiety + depression. Not keen on changing Rx as fears withdrawal effects, as last time ran out of tabs in S’pore for 4 days was spaced out mood dropped very low”.
In cross examination, Mr De Tarle stated that when he was admitted to RNSH the medication was changed from paroxetine to Zoloft (sertraline). However, in the medical record, it is noted that during his admission he was treated with paroxetine and was discharged on paroxetine, 20 mg per day with a supply for 7 days.
In Dr Unsen’s practice notes, it is clear that she believed Mr De Tarle was already being treated with sertraline prior to her first consultation. Furthermore, on 25 May 2013, she recorded “Has increased sertraline to 150mg – less anxious …. some days has energy …has denied current suicidal ideation”. It would appear that Mr De Tarle had started taking the medication which had been supplied on 22 April 2013 with some benefit.
At this point it is relevant to consider the expert medical evidence which, in my view, has been significantly diminished because the available evidence suggests that Mr De Tarle has not been a reliable historian, particularly in respect of his treatment with antidepressant medication.
On balance, I prefer the evidence of Dr Champion. In my view, his assessment and opinions are more consistent with the documentary evidence. In forming his opinion, that Mr De Tarle’s psychiatric condition is constitutional and that his condition in 2012 was not “significantly contributed to in a causal sense by his employment with ASIC”, Dr Champion was aware that shortly after starting at ASIC, Mr De Tarle had “ceased taking the antidepressant depressant medication he had previously used for many years”. It was not clear, however, that he was aware that Mr De Tarle had not restarted his prescribed medication until about April 2013.
In his initial report, Dr McClure seemed somewhat ambivalent and stated that “Causation is ultimately a matter for the Tribunal… It is certainly possible that workplace events exacerbated his condition”.
In his second report, after having re-examined Mr De Tarle in November 2020, Dr McClure stated that “I attribute Mr De Tarle’s incapacity partially to the injuries at work and to his constitutional condition”. In forming his opinion, Dr McClure appeared to rely on the history provided by Mr De Tarle at the of the consultation, which was not entirely consistent with contemporaneous documentary evidence.
In his third report, after having reviewed Dr Champion’s report of 21 February 2017, Dr McClure stated that he agreed that “the aetiology of Major Depressive Disorder is largely genetic /biological; however there is almost always a specific precipitant or ‘trigger’ to a recurrence.” He expressed the opinion that being “placed on a performance improvement programme and having his concerns… dismissed, were significant narcissistic blows. They contributed to Mr De Tarle’s declining mental state and subsequent suicide attempts.”
I note that despite reading Dr Champion’s initial report, Dr McClure did not realise that Mr De Tarle had ceased his antidepressant medication while at ASIC.
In his oral evidence at the hearing, Dr McClure said that Mr De Tarle had not told him that he had ceased taking his medication and conceded that if he did cease taking his medication during his employment with ASIC “that may have intensified the level of depressive disorder he sustained while he was working there”.
Dr McClure’s opinions appear to have been influenced by unreliable information and an unsound process of reasoning which is often referred to as the post hoc ergo propter hoc (after this, therefore because of this) or post hoc logical fallacy. In that respect, it is a fallacy to conclude that one event followed by a second necessarily demonstrates a causal relationship between the events.[58] Therefore, I have placed less weight on his evidence in respect of the contribution that Mr De Tarle’s change in his mental health arose because of his employment with ASIC.
[58] AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014 (AMA Guides) at 18.
CONCLUSION
I am satisfied that the evidence before the Tribunal points to a conclusion that during his employment with ASIC, Mr De Tarle did suffer a change in his mental health, in that he suffered an increase in his depressive symptoms.
The issue for the Tribunal is, whether this change in Mr De Tarle’s mental health was an aggravation of his pre-existing psychiatric condition and, if so, whether the aggravation was contributed to, to a significant degree, by his employment.
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), the High Court noted the Full Court’s conclusion that “the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". The High Court further noted in May, however, that this conclusion should be rejected to the extent that such a conclusion suggests that symptoms subjectively experienced by an individual, without “accompanying physiological or psychiatric change” will not engage section 14 of the SRC Act.
In Re Whitlock and Comcare [2020] AATA 1353, the Tribunal took into consideration the High Court’s judgments in May and Canute v Comcare (2006) 226 CLR 535, and applied them to the “aggravation” provisions within sections 5A and 5B of the SRC Act. The Tribunal concluded as follows at [196]-[197]:
The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee’s body or psyche.
Accordingly, in the circumstances of this case, in the circumstances of this case, the Tribunal must be satisfied that there is evidence that there was a physiological or psychiatric change to the Applicant’s pre-existing condition in order for there to have been an ‘aggravation’ of an ailment for the purposes of the SRC Act.
The available evidence, in my view, supports a conclusion that Mr De Tarle’s co-morbid personality disorder had a significant impact on his performance issues at work and the difficult relationships he had with his senior managers. I accept that this may have contributed to some degree to an increase in his depressive symptoms during 2012 and 2013.
However, I am not persuaded that the evidence before the Tribunal supports a conclusion that there was a psychiatric change in his pre-existing conditions.
In my view, the evidence points to a conclusion that, in 2012 and early 2013, the combination of Mr De Tarle’s pre-existing personality disorder and the fact that he had ceased his antidepressant medication caused a temporary increase in his depressive symptoms and that there was no change in the pre-existing condition.
Therefore, I am satisfied that Mr De Tarle did not suffer an aggravation of his pre-existing psychiatric conditions that was contributed, to a significant degree by his employment at ASIC.
For reasons the set out above, the Tribunal finds that Mr De Tarle did not suffer an aggravation of his pre-existing Chronic (Persistent) Major Depression associated with underlying personality Dysfunction/Disorder that was contributed to, to a significant degree by his employment and, therefore, Comcare is not liable to pay compensation under section 14 of the SRC Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

...................................[sgd].....................................
Associate
Dated: 3 February 2021

Date(s) of hearing: 1, 2 and 3 December 2020

Counsel for the Applicant: Mr L Robison

Solicitors for the Applicant: Mr G Whiffin

Counsel for the Respondent: Mr B Kelly

Advocate for the Respondent: Ms K Miller

Date(s) of hearing:	1, 2 and 3 December 2020
Counsel for the Applicant:	Mr L Robison
Solicitors for the Applicant:	Mr G Whiffin
Counsel for the Respondent:	Mr B Kelly
Advocate for the Respondent:	Ms K Miller