Dean and Australian Postal Corporation
[2009] AATA 812
•22 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 812
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/2320
GENERAL ADMINISTRATIVE DIVISION ) Re
BARRY DEAN
Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date22 October 2009
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – alleged bullying – psychological condition – injury – disease – contributed to in a material degree by employment – perception of the applicant that he was bullied – did perception contribute in a material degree to applicant’s ailment – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Kahn (2007) 156 FCR 536
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Re Jones and Comcare [2007] AATA 1653
Wiegand v Comcare [2002] FCA 1464
REASONS FOR DECISION
22 October 2009
Ms N Isenberg, Senior Member
INTRODUCTION
1. Mr Dean was an employee of the Respondent (“Australia Post”) from 4 April 1979 to 14 November 2008. He has complained of post traumatic stress related to a work place incident in or around January 2006 involving alleged bullying.
HISTORY OF APPLICATION
2. On 30 January 2008 a determination was made whereby Mr Dean’s claim for compensation in respect of “post traumatic stress” was disallowed.
3. The Respondent did not dispute that Mr Dean suffers from a psychological condition, but denied the condition was materially contributed to by his employment. By letter dated 12 March 2008 Mr Dean sought a review of this decision. On 9 April 2008 the Reconsideration Officer affirmed the determination of the delegate. Mr Dean has sought a review of this decision by this Tribunal.
ISSUES FOR DETERMINATION
4. The issue for determination is:
·Has Mr Dean suffered an injury arising out of, or in the course of, his employment with Australia Post?
LEGISLATIVE FRAMEWORK
5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
APPLICANT’S EVIDENCE
Work History
6. Mr Dean gave evidence that he commenced work at Australia Post as a telegram boy in 1979 after completing TAFE. He worked there until he was involuntarily retired in November 2008. He had worked his way up, and in 2002 or 2003 an area manager “recognised [his] talents” and he was temporarily promoted to a management position at the St Leonards delivery facility, with a staff of 90 to 100 staff.
7. In December 2005 he was transferred sideways as manager of the Peakhurst Delivery Centre, with a staff of about 70. In this position he was responsible for the running of the entire centre, which operated approximately 18 hours a day. He travelled a round trip of 110 km per day to get to work, often leaving home before dawn and returning when it was already dark.
8. He took a combination of recreation and long service leave from the job between September 2006 and January 2007.
9. In February 2007, he applied for a demotion, halving his pay, and he transferred to the Nepean Delivery Facility, closer to his home. There he was managing the dock operations for dispatch of mail. In that position he had no staff.
Personal history prior to Peakhurst
10. Mr Dean said that prior to starting at Peakhurst, he was “fine” psychologically and psychiatrically.
11. He denied he had told Dr Virgona that his childhood was rather difficult and unhappy, but conceded there were unhappy periods, such as when his parents divorced when he was nine. Prior to his parents’ separation he had a happy early life, although his father was sometimes violent and he got a few “hidings” from him. He conceded that his father may have been “nervy”, but denied he had told Dr Virgona that his father was a bit of a drinker. He stayed with his mother until he was 15 and his older brother became the “senior male in the house”. His brother also dispensed “floggings”, which Mr Dean said were just part of sibling rivalry.
12. He and his (then) de facto wife commenced their relationship in 1988 and their daughter was born in 1990. The relationship ended in 1998 when his wife asked him to leave, for reasons he never understood. He was distressed, because he loved his wife and child. There followed a protracted custody dispute. As his daughter grew into her teens, and she and her mother moved to Wollongong, weekend access visits became more difficult and they grew apart. Nowadays they speak on the phone, as she is working in the United States.
13. Although he could not necessarily recall specific medical attendances at his general practitioners he accepted that the records were accurate. One of the matters about which he complained of as a result of work stress is fatigue, which he believes is a symptom of his depression. However, as early as 8 November 1999 he had taken time off for fatigue which he attributed to the stress of his relationship break-up. In June 2000, he also took three days off for stress related illness, again, he said, because of his separation.
14. In about 2002 he started having some thyroid problems. He was unconcerned, he said, because the general practitioner told him it was a very common condition and easily controlled by medication. He commenced having regular tests.
15. In early 2004, he attended the medical centre complaining of feeling flat and lethargic for about two months. He attributed that to having issues with his teenage daughter. Australia Post provides a counselling service for employees, Davidson Trahaire, and he also went there about twice.
16. In March 2004 his general practitioner was advising him to increase his exercise and reduce dietary fat.
17. In September 2004 he was said to be suffering from low mood, which he told his general practitioner that he had suffered from on and off since his separation from his wife. At this time he also complained to his general practitioner about suffering chest pains.
18. On 5 January 2005, he saw his general practitioner about chest pains again, which had lasted 10 or 15 minutes after a stressful telephone call. An ECG was conducted.
19. Between ending his relationship with his first wife in 1998 and entering into a relationship with his current wife in 2005, he suffered some sexual dysfunction for which he was prescribed Viagra. That caused him to worry. He “dated quite extensively”, and after he received an anonymous text message suggesting he should be tested for HIV he had a general health check. He denied that this worried him. He was regularly checked for HIV and gonorrhoea from 2003 onwards, he said, as a precaution. He also had a problem with his prostate, but suggested the tests were merely routine.
20. He could not recall that in early December 2005, before his transfer to Peakhurst, he was complaining to his general practitioner, who at the time was Dr Parmar, of headaches and low energy, and gave a history of being stressed about his father who had a brain abscess and had had a stroke. He said he was “possibly” stressed by that.
Peakhurst
21. Mr Dean said that up until he became manager of the Peakhurst Delivery Centre he thought he had a good career with Australia Post.
22. On taking up the position he was told by his area manager, Danny Hodder, about his plans for the facility, which were essentially budgetary. In giving examples, Mr Dean focused on staffing issues: he thought Mr Hodder was of the view that the staff were lazy; Mr Hodder wanted him to dismiss the second in charge; Mr Hodder asked him to convert full-time positions to part-time positions if they became vacant; two of Mr Dean’s first line supervisors were seconded to higher duties, leaving him short staffed and his supervisors under strain; he was instructed that no supervisors were to do line duties, although Mr Dean thought it was impossible to get the mail delivered otherwise.
23. He considered that Mr Hodder’s instructions amounted to “bullying”. He was told to “just get [the job] done”. He said Mr Hodder encouraged him to work around the Australia Post rules.
24. He sent emails to Mr Hodder and to Graeme Redman, the staffing clerk, about being unable to meet deadlines or requests from Mr Hodder when there was over 25 per cent turnover of staff, two supervisors removed, and a chronically ill night manager.
25. Also at that time, Peakhurst was one of three New South Wales trial sites which were part of a national project to change the night mail sorting processes. Mr Dean asked for additional resources, as he thought the system actually delayed the sorting of the mail by up to two or three hours a day.
26. He said that at meetings with his 11 regional managers Mr Hodder would often single out Peakhurst as being overstaffed, at the same time as Mr Dean was continually asking Mr Hodder why he was being “run short [of staff]”. He said he was doing his best with the tools he was provided.
27. He agreed that Mr Hodder said that managers could meet with other managers, but did not think it was encouraged, nor was there time. Mr Hodder also set up a mentoring program, but Mr Dean claimed Mr Hodder had deliberately matched him with someone with whom he did not get along.
28. Three or four times, he said, Mr Hodder, said to him, “we’ll be looking at your contract,” or, “Patrick [Williams, the metro delivery manager] will be coming after your contract. We’ll get it ripped up.” On a similar number of occasions Mr Hodder would say the same thing to the management group as a whole. He said Mr Hodder said these things aggressively and in a bullying way that left him in no doubt that if he did not comply with what he was being asked, his job would be in jeopardy.
29. He was referred to the statement of Patrick Williams. Mr Williams said that the roles at St Leonards and Peakhurst were similar. Mr Dean disagreed. He thought they were “significantly different”. At St Leonards there were about 300 employees and he was operations manager on dayshift, controlling half the delivery booths, whereas at Peakhurst he was the overall boss of everything: finances, nightshift, and customer complaints.
30. Mr Williams wrote that he had had no difficulties with Mr Hodder. Mr Dean recalled that at a managers’ meeting, Mr Hodder had said Mr Williams had “rip[ped] shreds off him about … his [that is, Mr Hodder’s] performance”.
31. Mr Dean did not deny that in his conversation with Mr Williams on 23 January 2007 that he had said he wanted to work closer to home.
32. Mr Williams wrote of the grievance procedure. Mr Dean said that he was aware of the grievance process, but considered it “political suicide”, because, in his view, the process is about protecting the managers. He regarded the incident report form he subsequently lodged as a grievance which should have been investigated.
33. Mr Williams wrote that he could not recall Mr Dean ever complaining about a lack of staff. Mr Dean said that, Mr Williams was in his office at Peakhurst when he was talking about general staffing and the reduction of full-time staff and had reluctantly agreed. However, that was just before he went on leave.
34. Mr Dean was referred to Mr Hodder’s statement. Mr Hodder wrote that he had a discussion with Mr Dean about the centre’s targets and provided him with insight into underlying staff issues, including that some staff declined to work overtime. Mr Dean said that was untrue, but said he had tried to accommodate a couple of working mothers and other staff who had long travel times and could not work extended overtime.
35. Mr Hodder wrote that the managers were supported by his support staff in the areas of staffing and administration. Mr Dean said the support staff in the areas of staffing did not assist.
36. Mr Hodder wrote that from December 2005 to the end of 2006 he had a number of discussions with Mr Dean about his requirements for management at the centre, and that in his observation, Mr Dean was not meeting those requirements. Mr Dean noted that he received a performance bonus for his efforts. He said that Mr Hodder’s “discussions” were bullying and he was told to “just … do it” or “just … fix it” and “Go ahead. Don’t worry about what people say … [T]he staff are here to deliver the mail that’s what they’ve got to do”; “if anybody [is] not doing the job, just get rid of them.”
37. Mr Hodder wrote that he had “provided a lot of support and advice to [Mr Dean] on reducing costs and achieving business outcomes and targets, such as changing the mode of delivery and costs savings.”
38. Mr Hodder wrote to the effect that Mr Dean concentrated on staffing issues rather than providing leadership, thereby overlooking the strategic direction for the centre. Mr Dean said the business plan was set with no input from him as manager. He described it as Mr Hodder’s “wish list”.
39. Mr Hodder wrote that in his observation, Mr Dean “failed to embrace the role as manager of the centre. It appeared to me that he preferred to defend the staff rather than implement change …”. Mr Dean agreed he would defend staff.
40. Mr Hodder wrote that Mr Dean seemed reluctant to perform his management duties and preferred getting fit and making lifestyle changes. Mr Dean said he was unwell. Mr Hodder wrote that Mr Dean wanted to work closer to home. Mr Dean said he “made it be known” that he was travelling a long way to work. Mr Hodder said that Mr Dean told him that he had health and personal issues, but did not confide in him as to what these were. In response, Mr Dean noted the difficulty in telling a bully face to face that he is the cause of the sickness. Mr Dean believed he was achieving and that he did not respond to “being pushed like that”. He said he never told Mr Hodder he was having stress issues. He disputed that he had “clearly communicated” to Mr Hodder that he had issues external to the workplace which were the underlying reasons behind his lack of focus on his role.
41. Mr Hodder wrote that he regarded Mr Dean as a likeable person. Mr Dean said Mr Hodder was not the type of person that he would associate with outside of employment, but he was often friendly towards him, and laughed at his jokes. He said he was always polite to Mr Hodder and was not disrespectful.
42. Mr Hodder wrote that he could not recall an email from Mr Dean complaining about problems at Peakhurst. Mr Dean thought it would have been sent at least six months after he started in December 2005. Mr Hodder wrote that staffing allocation decisions “were made by [the] staffing officer based on effective costs and production outcomes”, whereas Mr Dean said that he was being run short of staff. Mr Redmond, the staffing officer, had told him that “I don’t understand it but that’s the way Danny [Hodder] wants it.”
43. Mr Dean was referred to the statement of Cheryl Maddison, who was the Staffing Office Network Support from June 2006. Mr Dean said he had little to do with her as he went on leave in early September. She wrote that she did not recall any specific complaint by Mr Dean about understaffing, high turnover or unqualified staff. Mr Dean said he emailed Messrs Hodder and Williams about staffing issues, although he thought he may have sent Ms Maddison a few emails.
44. Mr Dean was referred to the statement of Sue Brown (nee McConnell) who worked as a network support staff member. She wrote that she never observed Mr Hodder bullying or harassing Mr Dean. Mr Dean said that Mr Hodder would not bully or harass him in front of others, mostly it occurred behind closed doors. Ms Brown observed that [Mr Hodder] was “always very clear and upfront in his expectations of managers”.
45. Notwithstanding his concerns, Mr Dean did attempt to comply with instructions he was given. In the first six months the facility came $183,000 under budget and Mr Dean received a 5 per cent performance bonus for the 2005/06 financial year. It is unclear the extent, if any, that the budget savings were a product of reduced staff levels.
Health issues at Peakhurst
46. Mr Dean said his problems started within a couple of days of taking up duty. He said that at the time he was angry and frustrated. He felt he was being “steamrolled” into a position, and that Mr Hodder did not take on board Mr Dean’s 27 or 28 years of experience. He thought Mr Hodder’s expectations were unrealistic and the demands being put on him were unfair. He felt Mr Hodder tried to avoid meeting with him. He said he had worked hard to get to the position, whereas Mr Hodder had only been in Australia Post a short time. He felt his career was in Mr Hodder’s hands.
47. He said he felt unwell: he was tired, very frustrated and lethargic at times. He started having nightmares, and would wake up thinking about work issues and how to meet Mr Hodder’s goals. They included thinking about how to keep his and other people’s jobs. He said he has been told by his wife that he sits up in bed screaming “keep away from me.”
48. He could not recall precisely when his symptoms started, although he said that in December 2005 – the month he started – he was anxious, frustrated, worried about his new job and what kind of career path he would have, if he was going to be bullied about “unreal expectations about trying to change workplace culture that had been there for years”.
49. Although he frequented his general practitioner he did not complain about the stress at work, keeping it “bottled up” because he “didn’t want to be labelled” and “create political suicide by bringing up about being stressed”.
Health issues on leave
50. He took four weeks’ recreation leave and was married in September 2006. Whilst he was on leave he “fell apart”. Although he had previously mentioned (unrelated) stress to his general practitioner, he said he did not recognise his feelings of being unwell as stress. His wife was worried about his health as well and she advised him to give up work. He applied for, and was granted, three months’ long service leave.
51. In response to his complaints of feeling unwell, the doctor arranged blood tests and the like. He had an ECG and ultrasounds to check his heart. He experienced numbness in the hands so was sent to a nerve conduction specialist who found some damage caused by general overuse. He developed headaches, and had difficulty sleeping. He thought he probably had mentioned to the general practitioner that he was having nightmares about work, but thought she omitted recording that.
52. He saw the general practitioner in October and November 2006, not about stress. In October 2006 he consulted the general practitioner on two occasions. The earlier consultation concerned his cholesterol levels and weight and he was advised about diet and exercise. Days later he returned to his general practitioner because he was experiencing urinary symptoms. He expressed concerns about his prostate. He thought that may have been a routine check up.
53. In November, the general practitioner referred him to a kidney specialist. He also saw the general practitioner about his left shoulder. He attended again in December.
54. In none of these attendances did he mention work stress, he said, because he was on long service leave and was trying to forget about work.
55. He said that at various times during 2006 he had some happy moments such as his wedding.
Return to work
56. When he resumed work in January 2007, he said, Mr Hodder berated him over having taken long service leave over Christmas - the busiest time of the year. He wanted to discuss his future, but was told he was to go back and manage Peakhurst. Mr Stein, who was the relieving manager, was there to assist for about another week. Then he was on his own, having to meet requirements and reducing staff and costs.
57. There was a focus on auditing and he would need all his supervisors to assist with that task. With low staff levels he could see likely difficulties, and felt he was going to be “railroaded”. He went to talk to Mr Williams because he did not want to work with Mr Hodder any more. He discussed if there might be the possibility of a transfer, preferably close to home to get his health right.
58. The first time he mentioned stress at work to his general practitioner was on 15 January 2007, after having been back at work for a week and a half. At that time he was feeling frustrated. He thought it was the first time the general practitioner “put a label” on what he was suffering from. Up until then he knew he was being bullied and that he was unwell. The doctors were testing him for other things. He was given about a week off work and referred to Bernadette Keegan for counselling, who he saw on six occasions. He said the main issue that he discussed with her was his career and his work, and especially Mr Hodder. He was hurt and felt his career was at an end.
59. He was unaware of the content of the referral to the psychologist which noted Mr Dean was “under a lot of stress” and there being “multiple issues”.
Transfer to Nepean
60. He subsequently applied for the position at Nepean and started a week or so later, in early February 2007. He did not think the demotion had a major impact on his self-esteem or on his confidence. He had looked forward to the new job because it was closer to home, and was a 9.00 am to 4.30 pm job, unlike his previous positions, which for the last 29 years, had involved getting out of bed at 4.00 am. It was a “labour intensive job” with a lot of lifting and he thought the exercise would help him feel better. However, it became apparent very quickly that there was little cooperation between any of the teams that were his responsibility to coordinate. He was bearing the brunt of the criticism and his manager, Chris Ellis, told him to just do his best. He became very frustrated. He worked paid overtime most nights until seven or eight o’clock. He felt like he was being bullied and “held accountable”. He felt depressed on a daily basis.
61. On 30 April 2007, however, when he saw his general practitioner, Dr Parmar, he was recorded as telling her that he was not depressed. He did not recall saying he was not depressed, but thought that if he had, perhaps, the doctor had asked about whether he was depressed in his home life, as distinct from being depressed at work.
62. He remained in that job until about May 2007 and has not worked since.
63. He was referred to the statement of John Bold, who was the facility manager at Nepean Delivery Centre at that time. Mr Bold recalled Mr Dean having discussed with him in April 2006 whether there might be a position at Nepean because it would be closer to home. Mr Dean said there had been a general discussion and he had contacted Mr Bold because he saw a (lesser) job advertised at Nepean, which was closer to home. He thought that health issues associated with long hours of travel “may” have come up in conversation, but somewhat inconsistently denied he asked Mr Bold at that time if there was any work available. Mr Bold wrote that they also discussed study, as Mr Dean had said he was interested in obtaining promotion. Mr Dean said he told Mr Bold about the problems he was having at Peakhurst with Mr Hodder, but Mr Bold wrote that there was no discussion about problems with Mr Hodder at that time, nor later, in January 2007 when Mr Dean sought the demotion.
64. Mr Bold wrote that when Mr Dean started working for him he observed no change in him. Mr Dean said that their interaction was very limited as he directly reported to Chris Ellis, the delivery manager, who, in turn, reported to Mr Bold.
65. Mr Bold had commented that Mr Dean’s suggestion of a 25 per cent turnover of staff at Peakhurst was “a bit high”. Mr Dean said that Mr Bold had nothing to do with Peakhurst, so was not in a position to comment.
Since leaving work
66. In July 2007 Mr Dean applied for a council job, ground-keeping. He contemplated opening his own garden business.
67. One of the matters about which he complained was that he had so little motivation and drive, that at times he does not even want to leave the home. Nonetheless, he and his wife and in-laws went to New Zealand for 7 or 10 days, and he said he generally had an enjoyable holiday.
68. In October 2007 he won a gardening competition. It was suggested that he had enough drive, motivation and interest to participate in a gardening competition, but he said it had been a joint project with his wife.
69. He has been prescribed antidepressants since late 2007. He was subsequently referred to a psychiatrist, Dr Mayur, whom he first saw in January 2008. He continues to see Dr Mayur approximately every four to six weeks. He said his general practitioner referred him Dr Mayur to “delve further into the issues … with Mr Hodder”.
70. In May 2008, he saw Dr Mayur and was complaining about anxiety and lowered motivation, and that he was worried about mundane things. He denied he was worried about the possibility of having prostate cancer.
71. In July 2008, he won a sailing trip around the Whitsundays, but did not enjoy himself because he missed his wife. He said he “had a depressive episode on the boat on the last night”.
72. He attended St John of God Health Care for regular counselling sessions. He told Yvette Vardy, a psychologist, he was mainly troubled by work related issues with Mr Hodder. He denied that he had told Ms Vardy that he felt the “court process” was inadvertently encouraging him to remain ill.
Danny Hodder
73. Mr Hodder said he was formerly the network manager for South South-West Delivery Network, responsible for the management of 11 operational delivery centres throughout the south south-west geographic area of Sydney. The 11 centres had operational managers, of which Mr Dean was one, that ran the mail delivery operations for their area and who reported directly to him.
74. He said that when Mr Dean first started at Peakhurst he was very enthusiastic to get into the role. He discussed with Mr Dean the targets that had to be achieved under the “metro delivery plan in relation to … staffing costs, labour usage [and] productivity”. As time went on, it became very evident to him that Mr Dean was not focussing on the more strategic things, preferring to focus on occupational health and safety issues. He provided feedback to Mr Dean that some “harder decisions” needed to be made about staffing issues and changing some of the structures at Peakhurst. He emphatically denied that he told Mr Dean that he was to work outside the rules laid down by Australia Post.
75. He denied that there was insufficient staffing at Peakhurst to do the work that was required. It was a daily consideration to adjust staff to accommodate sick leave and other absences, and there was a specific staffing officer allocated to the network support to consult with the managers every morning and then form a more strategic point of view, and he would work with the managers in terms of staffing. There would have been occasions when Peakhurst would have been short staffed, but overall it was the structure of every centre, the size of the facility and the allocation and usage of equipment that needed to change. He doubted the accuracy of the suggestion that in the first six months that Mr Dean was at Peakhurst there was a 25 per cent turnover of staff, because across the network the figure was 11 per cent and for part‑time staff as high as 18 per cent. He said he was aware that at Peakhurst there was a large group of staff who declined to work overtime, and the rosters were worked out on the premise that there would be overtime worked. Mr Dean would have to look at the introduction of changes in circumstances where a third of his staff only wanted to work rostered hours. He had discussions with Mr Dean about management of that issue and, in his view, Mr Dean struggled because “he was going to have to confront some staffing issues, and make a lot of changes to a centre” in which there had been few changes for some time.
76. He said Mr Dean told him the second in charge was not able to perform his role to the level expected and he, Mr Hodder, advised Mr Dean about the ways in which he could performance manage him. He denied telling Mr Dean that he would have to take over that role as well.
77. Mr Hodder thought Mr Dean seemed to him to want to concentrate on getting fit and making lifestyle changes, and that he talked about health and personal issues, but Mr Dean did not elaborate. He understood Mr Dean wanted to work closer to home. About the time when the decisions were becoming harder Mr Hodder had approved Mr Dean’s recreation and, later, long service leave, notwithstanding it fell during the busy Christmas period. He denied he had abused Mr Dean for taking four months leave at the end of 2006. He was aware of “issues external to work” that Mr Dean had raised with him and that he needed to address them. He did not discuss what those issues were beyond that Mr Dean wanted to get fit and he wanted to concentrate on his health. He thought Mr Dean was quite frustrated, just telling him that he had “issues at home”. It was not his function to probe further. Where people have shared with him their issues he has referred them to appropriate professional help under the policies of Australia Post.
78. Mr Hodder said he facilitated monthly meetings with managers and instigated node meetings and the idea was to share best practice. He could not recall that he had introduced a mentor system and matched Mr Dean with someone Mr Dean regarded as inappropriate.
79. If Mr Dean had received a bonus then he was the one who would have had to approve it. He thought the fact that he had approved a bonus payment is probably an indication that the “level or degree of issues” he had with Mr Dean at the time were probably not significant.
80. He said he was at a loss as to where the allegations of bullying had come from. Mr Dean never complained that he was bullying or intimidating him. He regarded their relationship as very cordial. He emphatically denied that he overbore Mr Dean in his management of Peakhurst and made his life impossible. Given that Mr Dean was having health issues, he did not think it was possible that, in some of the conversations that they had, Mr Dean could have perceived that he was being bullied. From his observations, Mr Dean was very caring about his staff and he acknowledged this was an admirable quality. However, he considered that there were some staffing decisions and business outcomes that Mr Dean struggled with.
MEDICAL EVIDENCE
Dr Parmar, General Practitioner
81. Mr Dean has been attending the medical centre where Dr Parmar practices since 1 December 2005, and Dr Parmar has been his general practitioner since October 2006. Dr Parmar stated Mr Dean first complained to her of stress at work and resultant low mood and sleep disturbance on 15 January 2007. Mr Dean continued to see Dr Parmar more or less monthly from April 2007 to February 2008.
82. Dr Parmar certified Mr Dean as unfit for work for about a week from 15 January 2007. In April and May 2007 Dr Parmar again certified Mr Dean as unfit for work. On 31 May 2007 Mr Dean signed a GP Mental Health Care Plan which noted that Mr Dean was “under stress, [was experiencing] low mood [and] had [a] lot of problems at work.” It refers to his “traumatic separation 8 years ago, 18 year old daughter – problems with her, father was very unwell 2½ years ago [and] got married 9 months ago”. The plan states Mr Dean “feels sad, [but had] no ideas of self harm.” A goal was to deal with past issues. On the same day Mr Dean was referred to Bernadette Keegan, psychologist, for counselling in relation to the “nightmares re previous job”.
83. Dr Parmar again certified Mr Dean as unfit for work until mid-June 2007 and then was given a further two weeks off work “due to the stressful environment.” His condition was described as post traumatic stress. On 29 June 2007, Dr Parmar recorded that Mr Dean realised he had a lot of issues about “mostly what happened at work.” Mr Dean had told her he wanted to keep working, but was “unable to return to same stressful environment.” Dr Parmar recorded Mr Dean was “depressed … on and off, no ideas of self harm.” Mr Dean was said to be not keen on medication because he was worried about the side effects, and he wanted to continue with counselling. Mr Dean was again certified unfit for work due to post traumatic stress for a further three weeks.
84. On 19 July 2007 Dr Parmar recorded that Mr Dean was “still quite upset about his previous job, gets nightmares, disturbed sleep, no ideas [of] self harm.”
85. On 9 August 2007, Dr Parmar recorded that Mr Dean was suffering from severe headaches, and had told her that he wanted to return to work when he felt better, but he remained unfit for work until 3 September 2007. He was certified as being unfit to work until 27 September 2007 on 3 September 2007. On 27 September 2009, Mr Dean was recorded as continuing to “suffer from persistent anxiety, increased anger, frustration [and] flashbacks [in relation to his] previous work problems.” However, Dr Parmar had prescribed Lexapro 10mg, which was attributed to his reporting that he was “feeling better”.
86. He continued to consult Dr Parmar each month. In October 2007 he reported reduced anger and that he was sleeping better, although he was still reporting a “lot of frustrations re past experience at work”. In February 2008 it was noted that his medication had been increased.
87. On 27 March 2008, Dr Parmar recorded that Mr Dean was not feeling highly motivated, but had “no self harm ideas.” On 27 March 2008, Dr Parmar certified Mr Dean unfit for work due to post traumatic stress and depression for the period of 27 March 2008 to 1 May 2008, which was extended to 30 May 2008. On that date, Dr Parmar recorded that Mr Dean was having nightmares, was unhappy about the way his claim was being handled and was still unable to return to work.
88. On 24 July 2008, Dr Parmar recorded that Mr Dean finished a 12 week depression and anxiety workshop.
89. On 18 September 2008, Dr Parmar recorded that Mr Dean was upset about Australia Post.
Dr Prashanth Mayur, consultant psychiatrist
90. On 11 January 2008, the day of his first consultation with Mr Dean, Dr Prashanth Mayur recorded that Mr Dean took a demotion as a result of bullying which began in December 2005. Mr Dean was frustrated as to why he had been harassed and was teary. Dr Mayur noted that Mr Dean’s anxiety led to insomnia and dreams. Mr Dean was angry about being bullied and, in the opinion of Dr Mayur, was suffering from “Mild to Moderate Major Depression.” On 15 January 2008, Dr Mayur reported to Dr Parmar that Mr Dean “described many symptoms of depression.” He was of the opinion Mr Dean “has a mild to moderate Major Depressive Episode.” On 18 February 2008, Dr Mayur reported to Dr Parmar that “work related issues along with taking a demotion from his previous position to the current has had a major impact on his self esteem and confidence and this has brought on depression in an otherwise healthy man with good marital support who had had sufficient ego-strength to cope with past vicissitudes.”
91. On 16 May 2008, Dr Mayur recorded that Mr Dean brought up issues in relation to anxiety, sweat and lowered motivation. He was under “pressure from work to get back to work or be medically retired”, and Dr Mayur described Mr Dean’s condition as “Mixed depressive and anxiety episode.” He found it difficult to establish the onset of depressive features but thought they had been building up for many months. On 11 August 2008, Dr Mayur reported to Dr Parmar that Mr Dean “continues to experience a persistently low mood, lowered energy, incapacity to enjoy company of his mates …”. In November 2008, Dr Mayur considered Mr Dean to continue to be moderately depressed. In December 2008, he found Mr Dean to be depressed and angry due to his termination from Australia Post.
Dr Robert Gertler, Psychiatrist
92. On 6 August 2008, Dr Robert Gertler reported that Mr Dean was suffering from “adjustment disorder with depressed mood”. He wrote that “the level of depression is moderate in severity and is associated with typical symptoms including a lack of motivation and interest in previous activities, significant sleep disturbance with hypersomnia, marked social withdrawal, loss of libido, some cognitive deficits and pervasively lowered mood with tearfulness at times.”
93. Dr Gertler attributed Mr Dean’s condition to his experiences at work in 2006 and 2007. Dr Gertler took a history of Mr Dean being bullied by his supervisor, being unsupported and understaffed, finding it difficult to cope and the workplace being disorganised. Dr Gertler noted in his report that there was no evidence that activities unrelated to Mr Dean’s employment led to his condition. He was of the opinion Mr Dean is totally incapacitated for work as a result of his condition.
94. Dr Gertler noted that Mr Dean was seeing a psychiatrist every four weeks at the time and was not on medication. He would take Valium if he became irritable. He considered Mr Dean should continue seeing a psychiatrist and resume anti-depressant medication, and that he may require further psychological counselling involving cognitive behaviour therapy (on an individual basis).
95. In his oral evidence Dr Gertler said that he thought Mr Dean has a fairly fastidious personality, and if he were asked to do things he didn’t feel were right it could lead to anxiety if it was repeated or aggravated by the circumstances. It could lead to feelings of guilt and depression.
96. As to Mr Dean presenting to his general practitioner with multiple health issues, Dr Gertler said that “people with symptoms of depression or anxiety will often present to a GP with the physical manifestations of those conditions”. He described it as “somatizing”. Rather than saying “I am depressed,” he said people who have difficulty expressing themselves say, “‘I have got a headache’ or ‘I feel sick’ or ‘I have got vague aches and pains.’” It is very common and is called a masked depression. He was unaware that Mr Dean had made unsubstantiated health-related complaints before he commenced work with Mr Hodder.
97. The history that he took as to what was troubling Mr Dean was what he perceived was happening to him at work: the requests which were being made of him; the abuse to which he was, at times, subjected; the criticism which he felt was unfair or unfounded; and the lack of support in terms of overall workload, staff turnover. He observed that Mr Dean had been in positions of authority for some years without difficulty until he came in contact with Mr Hodder, and agreed that such attendances could also represent somatization.
98. He did not think Mr Dean’s separation, for which he had had some counselling, was in any way related to his current psychological problems, nor were the issues with regard to his daughter. There were no other issues apart from work. However, he was unaware that in November 1999 Mr Dean had to take time off work because of fatigue, or that in June 2000 he had had to take a number of days off for a stress related illness, because Mr Dean gave a history that, physically and psychologically, he was quite healthy and without problems prior to the involvement with Mr Hodder. Dr Gertler was also unaware that in early 2004 Mr Dean was seeing a psychologist, and gave a history of feeling flat and lethargic for about two months, which was a similar complaint after his dealings with Mr Hodder.
99. Dr Gertler was also unaware that in mid-2006 Mr Dean was noted, by his general practitioner, to say that an ex-partner from about one year earlier had now been diagnosed with HIV and he wanted some testing. He stated that you would expect that to cause stress. That potential stressor was something he would have liked to discuss with Mr Dean.
100. He did not know about Mr Dean’s gardening success, but said if he was treating someone who was amotivated and depressed, he would encourage them to get involved in activities which might help their self esteem.
Ms Christina Knappe, counselling Psychologist
101. On 27 April 2008, Ms Knappe recorded that Mr Dean “explored feelings of hurt regarding lack of support from the workplace” at the “A & D Skills” Group (a service operated by the St John of God Health Services’ Counselling and Therapy Centre) in which he participated. On 15 May 2008, Ms Knappe recorded that Mr Dean “reported headaches related to suppressed anger [and] anxiety”. He was assigned a task to write to Australia Post to advise how he was affected by the workplace bullying. On 29 May 2008, Ms Knappe recorded that Mr Dean ”reported tiredness, dizziness, poor concentration [and] anxiety”. On 6 June 2008, Mr Dean had “reported struggling to motivate self”. On 26 June 2008, Ms Knappe recorded that Mr Dean reported “short-term memory problems recently”. On 3 July 2008, Ms Knappe recorded that Mr Dean “reported feeling depressed [and] anxious over the week … worry about attending birthday party this weekend [and] seeing work colleagues from Australia Post … explored strategies to help [Mr Dean] deal better with his current stressors”. On 21 August 2008, Ms Knappe recorded that Mr Dean “reported decline in mood … feeling unproductive [and] low self-worth … wants to go back to work [and] hopes rehab plan will assist.” On 12 September 2008 Mr Dean “reported continuing low mood.”
Ms Yvette Vardy, clinical Psychologist
102. On 25 September 2008, Ms Yvette Vardy recorded that the current proceedings may be increasing Mr Dean’s stress. On 6 November 2008, she recorded that Mr Dean had been consumed with thoughts regarding work, but was “unable to feel any affect related to this e.g. anxiety or anger.” In December 2008 his mood had dropped further. In January 2009, Ms Vardy recorded that at the Mindfulness group, Mr Dean stated that he was struggling with energy, he said, because his medication had increased.
103. On 2 February 2009, Ms Vardy recorded that Mr Dean attended the Mindfulness group but “appeared unwell and pale.”
Ms Bernadette Keegan, Psychologist
104. On 6 June 2007, Ms Bernadette Keegan recorded that Mr Dean had concerns in relation to work stress. He felt angry and frustrated. In July 2007 she took a history of “bullied - 2 yrs + 18 months”. She noted that the area manager threatened Mr Dean with not giving him resources. Mr Dean felt “frizzed” due to his experiences at work. On 13 August 2007, Ms Keegan reported to Dr Parmar that Mr Dean was reluctant to return to work. On 3 September 2007, she recorded that Mr Dean was “thinking about work on a daily basis”. She noted perceived victimisation, as well as threat of “ripping up contract” and “lack of support.” Mr Dean gave a history of Mr Hodder giving him a “hard time,” having to run the unit short staffed, and retraining burden. On 13 September 2007, she recorded that Mr Dean was finding it harder to concentrate and that his memory was poorer.
105. On 14 October 2008, Ms Keegan reported to Mr Dean’s solicitors that Mr Dean had reported difficulties at work with management. She noted that Mr Dean told her Mr Hodder was unsupportive, had threatened to rip up Mr Dean’s contract and ran the unit short staffed. She was of the opinion that Mr Dean suffers from an “adjustment disorder with depression and anxiety” as a result of harassment by management.
106. Ms Keegan gave oral evidence that she did not explore Mr Dean’s past history because he was particularly stressed about the situation that he was currently in. She believed that “the stress that he was experiencing in June 2007 was predominantly related to the work stress that he was under with Australia Post management at that time.” She expressed a view that to keep going back to everything else in the past, “nobody would be entitled to anything”.
Dr Angelo Virgona, Consultant Psychiatrist
107. On 30 August 2007, Dr Angelo Virgona reported to Australia Post. He took a history from Mr Dean of the problems he had with his supervisors and managers, and of the conditions in the workplace when he transferred from the Peakhurst Delivery Centre to the Nepean Delivery Centre in February 2007. Mr Dean also referred to encounters he had had with his supervisor at the St Leonards Delivery Centre, where he had worked before transferring to Peakhurst in December 2005. Dr Virgona reported that other significant stressors for Mr Dean were his recent marriage and his relationship with his teenage daughter.
108. Dr Virgona diagnosed Mr Dean as suffering from “Adjustment Disorder with Depression and Anxiety.” He noted that the symptoms had been obvious over the prior 12 months, “occurring in the context of perceived pressure, harassment and possibly bullying from his superiors.” Dr Virgona noted that, as a consequence of the stress at work, Mr Dean had applied for a demotion to lower grade duties and had difficulty adjusting to the new position and workplace. He states that “this occurs on the background of a personality which perhaps tends to be rather process-driven, though not to the point of rigidity.”
109. Dr Virgona was of the opinion that Mr Dean was not able to return to work as he continued to have “significant anxiety problems, problems with motivation and concentration, sleep disturbance, irritability and anger and frustration”. Dr Virgona considered Mr Dean’s treatment had not been adequate and he needed medication and counselling.
110. In his oral evidence Dr Virgona said he had been unaware of the earlier complaints of fatigue, stress, feeling flat and lethargic, low mood, chest ache after the stressful telephone call, and the stress history two weeks before commencing employment at Peakhurst. In relation to the likely cause of any adjustment disorder with depression and anxiety, Dr Virgona said that he would have to take into account Mr Dean’s long standing, recurrent experiences of mood or stress-related symptoms which would indicate he has a vulnerability in that area. His conclusions would differ to his report in that he opined that Mr Dean was attributing his symptoms to the workplace stressors, but he would note that he has an underlying vulnerability to the development of anxiety/depression. Given that additional information Dr Gertler said that he was not able to say with certainty that his presentation was related to his employment.
111. He accepted that Mr Dean perceived that the harassment and bullying was causing his psychological conditions, based on the history given at the time of examination. The additional history caused Dr Virgona to doubt the veracity of the original history, but accepted that Mr Dean perceives that his psychological condition is secondary to the bullying and harassment. In his practice he had had cases where people have presented with perceptions as to the cause of their condition, which, upon further investigation, have not been borne out.
Dr Champion, Consultant Psychiatrist
112. On 18 December 2008, Dr John Champion reported to Australia Post’s solicitors that Mr Dean suffers from “Adjustment Disorder with Depressed Mood secondary to role conflict based upon personality structure.” He observed that Mr Dean had worked for almost 20 years as a postal delivery officer before moving into management positions, and had developed a “significant role conflict” as a result of the desire to look after the people he managed at the same time as performing his management role. He considered this role conflict, coupled with his personality structure (an inclination to perfectionism), caused Mr Dean to feel stressed and develop an adjustment disorder. Dr Champion stated that Mr Dean “did not objectively indicate he had been bullied,” rather focused on his perceptions and feelings. He was of the opinion that Mr Dean’s condition was not related to his employment. Dr Champion was of the opinion that Mr Dean was fit to return to work “if he was so motivated,” noting that compensation litigation places focus “upon continuing complaints of disability.” Dr Champion considered Mr Dean’s being diagnosed with hypothyroidism to be relevant, as early symptoms of this condition include depression, fatigue and weakness which can be misdiagnosed as depression.
113. Dr Champion also considered that when Mr Dean sought a more secure and less responsible position at the Nepean Centre, the level of conflict was reduced but his stress and unhappiness intensified because of the loss of status and salary and feelings of failure. Dr Champion attributed Mr Dean’s psychological condition to “personality factors … and his background work experience which placed him in a position of role conflict”.
114. Dr Champion said in his oral evidence that it was extremely common for patients to attribute or perceive an event or events as being the cause of their problem, and then on further investigation that event is found not to be the cause. People are not very insightful in relation to their own mental functioning, and tend to just look at the current superficial situation and don’t analyse the context of their life going back to the former period. Any mental illness due to an environmental factor is likely to resolve very rapidly, and not be incapacitating when the circumstances change.
115. He expressed the view that in regard to the gardening “therapy”, to the extent of having the motivation to enter a contest and win a contest, it was most unlikely Mr Dean was suffering any significant adjustment disorder at that time. Similarly, that he had an enjoyable trip to New Zealand led him to the view that it was unlikely he was suffering, at that time, any adjustment disorder.
116. Dr Champion was unaware of the stress complaint arising in relation to Mr Dean’s father about two weeks prior to him starting the new job at Peakhurst and the history of HIV testing. He rated those as very high level stressors, as they amount to a threat to one’s very close personal relationships and a threat to one’s own life. The HIV concerns, given Mr Dean’s imminent marriage, was a “threat of absolute personal disaster”, which he ranked “at the highest level, higher than those other matters, although family matters would follow closely behind it.” By comparison, any experiences he had while he was at the Peakhurst were not significant.
117. As to why Mr Dean continually complained about work stressors to his treating psychologist and psychiatrist and not about the HIV, Dr Champion agreed that Mr Dean was unhappy in the workplace, but he may well have been “unhappy in the workplace on the basis of the adjustment disorder, which he was predisposed to and which would be likely precipitated by the other … non‑work related factors”.
118. Dr Champion did not accept that what Mr Dean described, “when he was asked to detail the bullying, [was] consistent with circumstances which would be likely to produce a psychiatric disorder of any significance or any continuing form.” His perceptions of being bullied may have arisen out of other factors which were happening in his life at that time, and he was suffering from adjustment disorder from other causes at that time.
119. He thought that as Mr Dean gained a bonus one would assume he was carrying out his work well and there were no problems with his work. It would be “consistent that factors affecting him in the circumstances he was exposed to when he took his leave, rather than factors he was exposed to when he was at work had tended to precipitate many of the problems he developed.”
CONSIDERATION
120. For the purposes of this matter, “injury” is defined as:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
121. For the purposes of this matter, “disease” is defined as:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
122. In Comcare v Mooi (1996) 69 FCR 439 Drummond J said the use of the word “ailment” signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones” (at 443). His Honour said a claim should not be rejected simply because the employee’s condition cannot be identified as a recognised medical condition. However, his Honour added (at 444) it was:
... essential for ... a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behavior.
123. The condition suffered by Mr Dean has been described in a variety of ways: adjustment disorder with depression and anxiety (Dr Virgona, Ms Keegan); adjustment disorder with depressed mood secondary to role conflict based upon personality structure (Dr Champion) and adjustment disorder with depression of moderate severity (Dr Gertler).
124. It is clear, on the available medical evidence, that Mr Dean suffers from a condition, however described, which is outside the boundaries of normal mental functioning and behaviour (per Mooi).
125. For a condition to be compensable it must be “contributed to in a material degree by the employee’s employment”.
126. The term “in a material degree” is not defined in the Act. Finn J discussed the meaning of the term in Comcare v Sahu-Kahn (2007) 156 FCR 536. Thus, it can be understood that the term “imposes an ‘evaluative threshold’ below which a causal connection may be disregarded”, and “requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment.” For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question. It is sufficient that the employment contributes to the ailment in a material degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
127. In Wiegand v Comcare (2002) 72 ALD 795 von Doussa J suggested that some of the medical specialists (and the Tribunal) had been distracted by a consideration of whether the applicant’s perceptions were objectively reasonable:
[31] … there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled. (emphases added)
Did an incident or state of affairs actually occur, and create a perception in Mr Dean’s mind?
128. There were a number of incidents which Mr Dean relied on as examples of him being bullied.
129. There was the allegation that Mr Dean was deprived of staff. Ms Maddison said that she could not recall any specific request from Mr Dean for additional staff, and if he had a problem with staff she would have been aware of it.
130. Ms Brown provided a statement that her role included collating information for delivery centres and presenting it to Mr Hodder. She wrote that in monthly management meetings she never observed any bullying or harassment of Mr Dean, and that she always observed Mr Hodder to treat Mr Dean in a professional manner. I accept this evidence, but it is largely unhelpful in considering Mr Dean’s perceptions.
131. Mr Dean said he was berated by Mr Hodder for taking long service leave over the busy Christmas period. I agree with the Respondent’s submission that the event is unlikely to have occurred, on the basis that it would be unlikely that Mr Hodder would be critical about leave which he himself had authorised.
132. More problematic are the ongoing interactions between Mr Dean and Mr Hodder as to management issues, and these were central to Mr Dean’s claim.
133. What was useful in Ms Brown’s evidence was her observation that Mr Hodder was always “very clear and upfront in his expectations of managers and his plan for the network”. Mr Hodder gave evidence of having discussed with Mr Dean performance targets and issues associated with staffing costs, labour usage, and productivity. He formed the view that Mr Dean was not focussing on the more strategic things, preferring to focus on occupational health and safety issues. He said he provided feedback to Mr Dean that some harder decisions needed to be made. While his evidence described in benign “management-speak”, it leaves me in no doubt that Mr Hodder was likely to have firmly expressed his requirements, and that he considered Mr Dean to be reluctant to comply. Mr Dean, on the basis of his evidence, was uncomfortable; while he had had a management role before, he had not previously had responsibility for a whole facility.
134. There was no indication that, from a business perspective, the goals articulated by Mr Hodder were unreasonable. They reflected, it seems, efforts by Australia Post – through Mr Hodder – to conduct itself as a more efficient government business enterprise. It is the unhappy lot of managers, at all levels, to have to implement often unpalatable decisions of senior management. However, that is not my concern. What is important is how Mr Dean perceived those interactions with senior management, especially Mr Hodder, and I accept that Mr Dean perceived that he was being bullied.
Did the perception contribute in a material degree to Mr Dean’s ailment?
135. It was submitted on behalf of the Applicant that Mr Dean’s perception of the workplace issues was the subject of his nightmares; caused him to see his general practitioner on 15 January 2007; is the issue he has complained about ever since to his general practitioner and to his psychologist Ms Keegan; is the subject of psychiatric treatment; is the reason he is on antidepressants; is why he took long service leave at the end of his recreation leave in 2006; explained his application for a demotion costing him more that $40,000 a year.
136. As the Tribunal noted in Re Jones and Comcare [2007] AATA 1653, citing Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, care must be taken, however, “to distinguish a perception that is caused by an incident in the workplace, that may contribute in a material degree to a mental ailment, from a perception that is caused by a mental ailment that is brought to bear upon an incident in the workplace, in which the workplace incident is an inert focus for the ailment and, once focused upon by a sick mind, the incident may have some role to play in a future manifestation of the ailment, but does not contribute to it ‘in a material degree’.”
137. Nearly all of the medical evidence supported the proposition that the workplace stress - the perceived bullying, was a contributing factor to Mr Dean’s condition. None of the doctors, however, including the treating psychiatrist, Dr Mayur, nor the treating psychologist, Ms Keegan, nor any of the medico-legal reporters were apprised of the full history when proffering their views. Dr Mayur, who was first consulted in January 2008, refers only to “work related issues” and, on the basis of the history given by Mr Dean, that he had sufficient ego-strength to deal with past vicissitudes. Mr Dean had told him that he had “coped well with a ‘messy’ divorce and custody proceedings.” Ms Keegan said that she predominately saw Mr Dean for work-related problems and was uninterested in any further information, commenting, bizarrely in my view: “if I [investigated the past history of] every single person I saw nobody would be entitled to anything.”
138. Mr Dean gave Dr Virgona a history of an unhappy childhood, whereas he told Dr Champion that it was a happy childhood. Mr Dean, in his evidence, on a number of occasions explained that, and other anomalous entries by medical practitioners, on the basis of: “it depended upon the question I was asked”, which was not, in my view, a satisfactory response to explain each remark he may have considered adverse.
139. More significantly, because Mr Dean had informed the doctors that he was well psychologically before working with Mr Hodder, they were unaware of aspects of his history: that in November 1999 he had had time off for fatigue; in 1999 he saw a counsellor in relation to his relationship breakdown; in 2000 he had time off for stress; and had consulted a psychologist in 2004 in relation to issues involving his then 15 year old daughter. Dr Gertler said he would be “desirable” to discuss the events of 1999, 2000 and 2004 with Mr Dean.
140. The DMC Medical Centre (“DMC”) clinical notes indicate that in early 2004 Mr Dean complained of feeling flat and lethargic for two months. This is similar symptomatology to that of which he complains in relation to the current claim. In September 2004, he discussed reduced mood which he had suffered on and off since his separation six years ago. In January 2005 he complained of chest pains after a stressful phone call.
141. On 1 December 2005, two weeks before he commenced at Peakhurst, he consulted his general practitioner, whose notes refer to complaints of headache, congestion, and low energy. It was recorded that the stress was family-related, and that Mr Dean said that his father had a brain abscess leading to stroke-like symptoms.
142. Dr Virgona identified other significant stresses in Mr Dean’s life, including his recent marriage and other ongoing stress related to the daughter, although his evidence was that the perceived bullying was causing Mr Dean’s psychological condition. After the added history was put to Dr Virgona, he was more cautious in his conclusion and could not be certain of the role of the workplace in Mr Dean’s condition.
143. From Mr Dean’s evidence he is still is troubled by the breakdown of his first marriage and his relationship with his daughter, although he told Dr Mayur, his treating psychiatrist, that he had coped well with the “divorce” and custody proceedings.
144. It was submitted on behalf of the Applicant that the additional medical history goes only to support the proposition that Mr Dean had an underlying condition, or a vulnerability. In my view the additional medical history, with the clinical notes and leave records, are indicative of other factors that are likely to have significantly contributed to Mr Dean’s condition. The doctors who gave evidence for the Applicant were less confident in their expressed views when the additional history was provided.
145. In his oral evidence Mr Dean contended that Mr Hodder’s intimidation started right from the commencement of work in mid December 2005, and in his Incident Report/Claim for Rehabilitation and Compensation he asserted that his condition had commenced by January 2006. In 1999, 2000, 2004 and December 2005 Mr Dean was capable of identifying stress, yet throughout 2006 there is no note in the doctors’ records of any complaints of work-related stress, notwithstanding that his evidence was that he started feeling symptoms of stress in January 2006. In January 2007, when he discussed the condition with his general practitioner, he was referred for counselling but did not pursue that for some months because, he said, he thought he would work it out himself.
146. On 28 April 2006 the DMC clinical notes record that Mr Dean had attended, noting that an ex-partner from one year ago had been diagnosed with HIV. By that time Mr Dean was in the relationship with his current wife. Dr Champion described the news as “a matter of life and death in reality” for Mr Dean, and regarded it as “the likely major contributor” to his stress condition. I find it unlikely that Mr Dean “wasn’t worried” as he claimed in his evidence, particularly when contrasted with his concern about sexual dysfunction for which he was prescribed Viagra.
147. It was submitted on behalf of the Applicant that Mr Dean had had a number of medical tests, which, with the exception of the thyroid, all came back negative. It was suggested that this was a demonstration of somatization, that is, his adjustment disorder being expressed in or converted into physical effects. That submission, however, is flawed, in my view, because on the basis of the general practitioner’s notes, Mr Dean was attending regularly for testing well before any relationship with Mr Hodder.
148. Both Dr Virgona and Dr Champion said that it is not uncommon for people to perceive something to be the cause is of their problems, and on further investigation it is found not to be the cause at all.
149. In his statement Mr Williams, Mr Hodder’s supervisor, wrote that Mr Dean had made no complaint to him about Mr Hodder. A complaint might have been expected if Mr Dean was so concerned that he wanted to seek a transfer, as was claimed, because he could not work with Mr Hodder. One might speculate that a responsible manager should alert senior management to conduct that would be a serious workplace issue, and which could possibly have broader ramifications for the organisation than friction between Messrs Dean and Hodder.
150. Neither was a formal grievance lodged against Mr Hodder. Mr Williams wrote of the grievance procedure. I do not doubt that a long-standing employee, such as Mr Dean, would be aware of the procedure but, instead, he chose not to avail himself of it. The Applicant’s submission is that he believed that his claim form would give rise to an investigation. That, however, does not address his failure to complain, formally or informally, as the events transpired, if he was as distressed from December 2005 or January 2006, as he claims.
151. Mr Dean told Dr Champion that he sought long service leave because he was unable to face the thought of going back to work and having to deal with the area manager. Shortly after his return to work from long service leave he attended his general practitioner complaining of being under a lot of stress at work.
152. It was submitted on Mr Dean’s behalf, effectively, that from January 2006 he had been so oppressed by Mr Hodder that he was unable to do his job. However, on 29 August 2006 he received a bonus, approved by Mr Hodder, for doing his job well. To me this is a clear objective marker that, despite the unpleasantness and the difficulty in meeting Mr Hodder’s expectations, the effect of his perceptions did not adversely affect Mr Dean’s performance.
153. As Mr Dean had previously utilised the Employee Assistance Program system to seek assistance for stress, he knew it was available for him when he felt stressed, but he did not do so. It was submitted on his behalf that because Mr Hodder was aware in 2006 that Mr Dean was having health issues he should have referred Mr Dean to the Australia Post counsellor. I reject that submission. Mr Dean was himself a relatively senior person who had worked at Australia Post for many years, and had in fact used the service himself previously. There was no obligation on Mr Hodder as his manager to interfere.
154. Another relevant matter to Mr Dean’s well-being was that he was travelling a round trip of 110 km per day to work at Peakhurst. He was leaving at 4.30 am and returning after dark. Mr Bold wrote in his statement that in April 2006 Mr Dean asked him if there was any work available closer to home. Mr Dean talked to him about study, in which he was interested in order to obtain promotion.
155. In January 2007, Mr Dean told Mr Bold that he wanted a lifestyle change. Mr Dean had also discussed lifestyle change with Mr Hodder. Mr Williams recalled in his statement that in January 2007 Mr Dean told him he wanted to work closer to home.
156. Having considered the evidence I accept that the reason that Mr Dean accepted the demotion was not to avoid bullying, but to improve his lifestyle, that is, spend less time travelling to work and enjoy better work hours.
157. I accept that Mr Dean has a complex psychiatric history which is interwoven with relationship problems with his family. He may have attributed his problems to Mr Hodder and the situation at Peakhurst Delivery Centre, but there is insufficient cogent evidence to support that attribution.
CONCLUSION
158. It appears to me more likely than not that Mr Dean’s negative perceptions were the result of a pre-existing mental ailment, or his underlying personality traits, operating in the workplace with Mr Hodder in primary focus. In the words of Davies, Beaumont and Burchett JJ in Kirkpatrick the incidents in the workplace were “an inert focus for a neurosis determined by other factors”.
159. I was referred to Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 where Sweeney and Woodward JJ said at 195:
… There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity…
160. I am reasonably satisfied that Mr Dean latched onto the incidents in question with his mental ailment, or his personality traits, moulding his perceptions. To that extent, it can be said that they played some part in the development or progress of his ailment.
161. I am reasonably satisfied that if the incidents in question, as perceived by Mr Dean, contributed, individually or in combination, in any measure to cause or aggravate Mr Dean’s mental ailment, the contribution was not in a degree that is material: per Comcare v Sahu-Kahn. I am, therefore, reasonably satisfied that Mr Dean’s employment did not contribute in a material degree to cause or aggravate his mental ailment.
DECISION
162. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 162 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed: .................[sgd]............................................................
AssociateDates of Hearing 24-26 August 2009
Date of Decision 22 October 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Ms R James, Slater & Gordon
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Ms R Kathner, Australian Government Solicitor
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