DXVN and Telstra Corporation Limited (Compensation)

DXVN and Telstra Corporation Limited (Compensation) [2018] AATA 2152 (9 July 2018)
Division:GENERAL DIVISION
Re:DXVN
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:9 July 2018
Place:Brisbane

The Tribunal affirms the decision under review
................................. [SGD].......................................
Deputy President J Sosso
Catchwords
Workers’ compensation – whether the Applicant suffers a condition outside the boundaries of normal mental functioning and behaviour – when condition arose – whether aggravation of condition contributed to, to a significant degree, by his employment - reasonable administrative action in a reasonable way - counselling action – s 14 Safety, Rehabilitation and Compensation Act 1988
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14.
Cases
Dean v Australian Postal Corporation [2010] FCA 680; 52 AAR 54
Comcare v Mooi (1996) 69 FCR 439
Quick and Comcare [2010] AATA 209
Telstra Corporation v Hunter [2016] FCA 318
Wiegand v Comcare [2002] FCA 1464; 72 ALD 795
REASONS FOR DECISION
Deputy President J Sosso
9 July 2018
INTRODUCTION

DXVN (“the Applicant”) seeks a review of a decision of Telstra Corporation Limited (“Telstra”) dated 31 October 2016 (Exhibit 1 T38 pp. 225 – 231) which affirmed a Determination of 12 July 2016 (Exhibit 1 T23 pp. 116 – 123), denying any liability of Telstra to pay the Applicant compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of anxiety, depression and stress.
This matter principally concerns events that occurred on 19 March 2016, at the Capalaba Telstra store (“the incident”). Much of the evidence relates to some unhappy interpersonal relationships at the store that led up to the incident, and, in particular, alleged bullying and homophobic behaviour that the Applicant claims he was subjected to. There is a key divergence in the factual accounts of what happened during the incident, with one account suggesting the Store Leader, Ms E, was overly aggressive, and on the other hand, a suggestion that the Applicant engaged in inappropriate and insubordinate behaviour from start to finish. In resolving these differences, it is necessary to set out at some length the events that transpired and to provide, as far as is practicable, the various versions of events so that the ultimate resolution can be properly understood.
There are two other matters that also need to be mentioned. The first is that there was video footage of the incident. Unfortunately, the video footage was destroyed and all that remains is a very short clip, which is a few seconds in duration. It provides little help to the Tribunal. The circumstances surrounding the destruction of the video footage, and the inferences that could be drawn, were the subject of considerable debate.
The second, is that there were two different processes unfolding after the incident. The first was an internal Telstra investigation and the second was a workers’ compensation review. Both should have operated independently of each other. I note that there were emails between Ms D (who conducted the first workers’ compensation review) and Mr K regarding their respective investigations – Exhibit 1 T 16 -

17 pp. 107 -109. However, it seems clear from a reading of the documentation that the respective reviews were conducted objectively and fairly.
The Applicant was self-represented, and the conduct of the hearing was, at times, very difficult. The Applicant has a number of health issues, both physical and emotional, and by the second day of the hearing, the stress caused by the proceedings resulted in him unilaterally leaving the hearing room. Eventually he was able to return and the matter proceeded to its conclusion. The Tribunal endeavoured to ensure that the Applicant was not disadvantaged, and was satisfied that despite some difficulties, he was able to present his case fairly and appropriately.
BACKGROUND
The Applicant was born in 1982 and at the time of the hearing was 35 years of age. He has worked in various positions, including retail outlets (e.g. Crazy Clarks), a veterinary clinic and also in the IT sector. Prior to working for Telstra, the Applicant operated his own start-up company in the IT sector – Exhibit 4 pp. 1 – 2.
The Applicant was examined by Dr Frank Varghese, Consultant Psychiatrist, on 13 March 2017 – Exhibit 4.
Dr Varghese noted that the Applicant suffered emotional problems in circa 2007 – 2008, manifesting in depression and loss of self-esteem. He was prescribed Lexapro in November 2008 and subsequently recovered fully – Exhibit 4 p. 8.
The Applicant has been in a long-term relationship since 2009, with the exception of a

12 month separation in circa 2011. The Applicant told Dr Varghese he was “down” for about one month after the separation, but he recovered and reconciled with his partner.
Dr Varghese was subsequently briefed with summonsed medical records and prepared a second report dated 25 September 2017 – Exhibit 16.
The summonsed records disclose that the Applicant’s mother attended the Princess Alexandra Hospital on 24 August 2003, requesting treatment for her son. She was concerned about his behaviour and said it had been deteriorating steadily over the previous two years. His mood was low, he was “out of control” and she was very concerned about both his welfare and her own. She claimed that the Applicant was paranoid, socially withdrawn, had lost his job and friends, his self-care had declined and he was not feeding himself properly. The Applicant was said to have obsessional and delusional beliefs regarding his facial hair – Exhibit 16 p. 3.
The Applicant was assessed by the Division of Mental Health on that day. The assessment disclosed that the Applicant was unable to look after himself, was totally socially withdrawn, unable to leave his flat and very paranoid. He believed people were talking and looking at him and he had deliberately driven on the wrong side of the road to avoid persons looking at him.
Dr Varghese made these comments – pp. 3-4:
“(COMMENT: The records indicate that [the Applicant] presented with mental health issues at the PA Hospital prior to his treatment by Dr Theodoros. The clinical picture that emerges is of a severe depression with secondary psychotic like symptoms as against a primary psychosis. It seems that [the Applicant] was not admitted under an involuntary treatment order as there are no notes of any admission. I assume he was then transferred to Dr Theodoros.)”
The summonsed records disclose that the Applicant was treated by Dr Michael Theodoros, Psychiatrist, from 2004. Dr Theodoros noted that the Applicant originally presented with severe anxiety characterised by body dysmorphic disorder and social anxiety disorder. Dr Theodoros noted that he was very dysfunctional and inconsistent with his appointments. He presented in November 2008 with depressive symptoms and persistent grooming rituals, which meant that it would take him at least 40 minutes to leave his home. His attendance was erratic, and Dr Theodoros informed him that he could not continue treating him if he was unable to keep appointments – Exhibit 16 p. 2.
Dr Varghese made these comments – Exhibit 16, p. 2:
“(COMMENT: It seems from the report of Dr Theodoros that [the Applicant’s] problems go back well before 2008 and that his initial presentation was in 2004. Assuming that [the Applicant] does not have body dysmorphic currently nor severe anxiety nor the grooming rituals, then it seems to me that these symptoms were probably secondary to a depressive episode occurring in the context of personality vulnerability. I note that Dr Theodoros does not indicate what treatment was given between 2004 and 2008.)”
Dr Wayne Chung, the Applicant’s then General Practitioner, diagnosed him with depression on 20 November 2008, 24 November 2008, 14 January 2009, 5 February 2009, 11 February 2009, 24 July 2009, 4 July 2010 and 27 August 2010. During these times he was prescribed variously Cymbalta, Cipramil and Lexapro. The Applicant was also diagnosed with insomnia and prescribed initially Serepax and then Temazepam – Exhibit 16, pp. 1 – 2.
The Applicant was treated at Queen Elizabeth II Jubilee Hospital in February 2009. He presented with an anxiety disorder, and the diagnosis was a suicide attempt. He presented with signs of self-harm and had been having suicidal ideation. He reported feeling sad and helpless but said that he was not interested in harming himself again – Exhibit 16, p. 2.
Following this, the Applicant was assessed by Dr Slavika Jelesic-Bojicic, Psychiatrist. In a letter to Dr Chung dated 6 March 2009, Dr Jelesic-Bojicic noted that the Applicant had a history of mixed depressive anxiety symptoms, including intermittent suicidality and occasional self-harming behaviour. The Applicant’s anxiety symptoms included social anxiety, OCD symptoms and claustrophobia together with a history of dysmorphic body disorder. The Psychiatrist considered that there were borderline personality traits.

Dr Varghese made these comments – Exhibit 16, p. 3
“(COMMENT: In this report it seems that personality dysfunction which is described as being a borderline type is a significant clinical issue. As with the symptoms described to by Dr Theodoros it seems to me that the social anxiety, OCD symptoms and phobic symptoms are a manifestation of depression occurring in the context of personality dysfunction.)”
In September 2012, the Applicant was diagnosed with a serious ailment and following this diagnosis his General Practitioner was concerned, as he had expressed suicidal ideation. There are no other medical reports since that time – Exhibit 4, p. 2.
To sum up, the Applicant has been diagnosed with psychiatric issues since at least 2003, and has been treated by various Psychiatrists since at least 2004. The very latest that it could be said that he was prescribed anti-depressant medication is 2008.
As to his time at the Capalaba Telstra store, the Applicant outlined at considerable length his unhappy relationship with a co-worker, Mr L According to the Applicant, Mr L did not like him and the Applicant suggested that this was due to him being gay. The Applicant told Dr Varghese that Mr L had hidden the Applicant’s paperwork, including contracts, changed the PIN on his work phone, deleted apps on his mobile phone and, on one occasion, threw his fruit juice away. Accounts were also given of more subtle behaviour involving Mr L belittling the Applicant in front of his co-workers – Exhibit 4 p. 2.
It should be noted, that Mr L made a statement dated 20 October 2017 – Exhibit 8. Mr L had been employed as a Customer Advisor at the Telstra Capalaba store since 10 August 2014. Mr L denied that he had engaged in the type of behaviour alleged by the Applicant. As Mr L was not called to give evidence, the Tribunal was not given an opportunity to observe him when his version of events was tested.
Ms E provided a written statement dated 19 October 2017, which provides some useful background material – Exhibit 7:
“2 I have known the applicant…since around March 2015 when he transferred to the Capalaba Telstra Store. At that time I was the Acting Store Leader at the Capalaba Telstra Store. At the time that [the Applicant] transferred from the Loganholme store to the Capalaba Store I had been acting Store Leader for approximately 1 year. I did not previously know [the Applicant].
3 During the time that I was Acting Store Leader [the Applicant] reported to me. He was engaged as a casual and was rostered to work subject to available labour allocations across the network. I wrote the rosters.
4 [The Applicant’s] customer advocacy and NPS (Net Promoter Score) metrics were good and he achieved good results. His behaviour with other staff members were not always professional. He was often late to ‘day start’ meetings prior to his shift and was very often disruptive. I recall that on a number of occasions I had to speak with him about his punctuality and behaviour. I did not formally record or document these discussions as they were informal and I saw them as ‘friendly reminders’.
5 [The Applicant’s] sales performance was okay but not at the level it should have been. I recall that I often spoke to him about his sales but he did not take me seriously and laughed it off. Again, I did not treat these discussions as part of a formal process. I felt that I was trying to ensure that [the Applicant] was a ‘good fit’ for Telstra.
6 During the time that he worked at the Capalaba Store [the Applicant] repeatedly informed me that he suffered from ADHD, depression and anxiety. He often informed me that he took Valium before coming to work.”
Ms E also dealt with the Applicant’s claim that he had been the subject of unacceptable behaviour from Mr L Ms E said:
“31 I was entirely unaware of the allegations now made by [the Applicant] that

[Mr L]
had homophobically bullied and harassed him. [The Applicant] never made any complaint to me that he was being bullied or harassed by anybody at Telstra. I have seen [the Applicant’s] allegation that during this meeting [15 April 2016] I described [Mr L] as being ‘homophobic’. I deny this allegation and confirm that I have not said this at any time.
32 I understand that [the Applicant] has stated that in October and November 2015 he asked me not to roster him on the same shifts as [Mr L]. I deny that allegation. At no time did [the Applicant] ask me this. If he had, I would have asked him why and tried to get to the bottom of any underlying issue.”
THE INCIDENT
The Applicant commenced casual employment at the Telstra Capalaba store on

2 February 2015. The Applicant held the position of Customer Advisor and performed sales and services duties – Exhibit 1 T5 p. 40, T38 p. 225.
On 5 May 2016, Telstra received the Applicant worker’s compensation claim under the Act, in respect of “ANXIETY, DEPRESSION, STRESS” – Exhibit 1 T5 p. 31. The Applicant claimed that he was injured on 19 March 2016 at approximately 1:30 pm, and he stated that the part of his body that was affected was his “MIND” – Exhibit 1 T5 p. 31.
The Applicant attached to his claim form a statement dated 6 April 2016. At the top of the document the following is noted – Exhibit 1 T7 p. 47:
“Email sent to Telstra HR Direct and [Mr K] 6 April 2016 regarding 19 March 2016 incident”.
At the time, Mr K was the General Manager – Telstra Retail, Queensland Consumer and Country Wide.
The document sets out at length the Applicant’s version of the incident, and earlier incidents. A substantial portion of the document is set out below: – Exhibit 1 T7 pp. 47 - 48:
“An incident occurred on Saturday 19 March 2016 when I asked my Store Leader [Ms E] for a break. I had started that Saturday at 9 AM, I initially requested to take a break when able at approximately 12:30 PM and continued to work (I had asked [Ms E]), at about 1:30 PM I asked [Ms E] if I could take my break now, I was instructed by [Ms E] to go to the back office, I could tell she didn’t look happy. I went to the back, and [Ms E] followed seconds later. As soon as the door closed behind [Ms E], she started yelling at me about me asking for my break, her reasons for this was because the store was busy.
There were 2 other staff members out back when this occurred, one left almost immediately and went to the front of the store, the other stayed. Another staff member had walked in and quickly walked out.
[Ms E] continued to yell for about 5 minutes. It ended with [Ms E] asking what I would like to do, my response was I would like to take a break as I needed one. [Ms E] then told me to leave the store, and I said fine. As I was walking to grab my water bottle and leave, [Ms E] asked me what I was doing. I said leaving as requested. [Ms E] said words to the effect “we’re busy”, I responded what do you want me to do, [Ms E] then instructed me to serve a customer “on the right hand side”. I put my water bottle down and went to the front and served the unattended customer to the right.
[Ms E] stayed out the back for another 10 minutes or so. I started serving the customer around 1:40 PM, and finished serving around 2:40 PM. During my time serving the customer [Ms E] came to me and said you can take your break, I responded I was not able to now due to the customer she had given me, nothing else was said and [Ms E] walked off as did I to continue serving my customer.
When I started my break …I realised I was becoming more and more upset by what had happened and decided it was best to leave for the day. At 2:51 PM (according to the txt), 10 minutes into my break, I txt [Ms E] the following, “I don’t bring nps down. I can think of many others who do but I don’t. I’m driving home.” (The reason I mentioned NPS is because during [Ms E]’s yelling at me, she mentioned my NPS and store NPS and that I wasn’t doing good and affecting NPS, this offended me because my NPS is usually the highest in the store and I am often recognised for it, however in recent times my NPS has been a bit lower, a fact [Ms E] had pointed out to me at least twice in the weeks leading to this event).
Since this event occurred I have not received any further shifts from Capalaba. I have tried to contact [Ms E] various times and only had a response last week. This conversation ended with [Ms E] stating she was sitting down and doing the rosters now. My roster never came through. I have tried to contact [Ms E] again via phone and txt since and have not heard back.
These events have been very upsetting to say the least, and what I would like to know is where I stand now and why I have been treated this way.
Another concern I have at Capalaba relates to another staff member, [Mr L]. [Mr L] has made it difficult for me to work there since pretty much day dot. I have raised various complaints with [Ms E] but as far as I am aware, nothing has been done. The only person to speak up to [Mr L] and who told him he was being inappropriate was the Assistant Store Leader back in November/December when the ASL heard him say something either to me or about me. [Mr L] clearly didn’t listen because nothing had changed, and from memory he shrugged being told off on the spot as well.
[Ms E] too has witnessed [Mr L]’s behaviour towards me but I have never seen any action taken…”
Ms E’s version of what occurred is somewhat different. In her statement of

19 October 2017, she outlined in detail her recollection of what transpired – Exhibit 7:
“7 19 March 2016 was a Saturday which was always a busy day at the Capalaba store. I recall we did not have the full number of staff who were rostered due to absences caused by bereavement and sick leave.
8 Day start on 19 March 2016 started at 8.50am. Staff are expected to be present for this. I recall that on that day [the Applicant] was late arriving at 8.58am. He walked into the shop laughing at the fact he was late. He did not quietly join the day start meeting but was laughing and shuffling and acting in a very disruptive way. I had to verbally reprimand [the Applicant] and I advised him his behaviour was unacceptable and requested that he apologise to the team. He apologised immediately upon my request however it did not appear to be genuine.
9…At about 12:45PM I sent two staff to take their lunch breaks. One staff member was a Sales Consultant and the other was a Technician. Generally their breaks would be from 12:45 to 1:15PM however there is no regular break time in retail. Breaks are taken based on the number of customers in the store and when time permits. Due to varying customer service demands lunch breaks are also rostered so that employees in the same position who perform the same type of work are not on a break at the same time. On 19 March 2016 at about 12:45pm I was serving the a (sic) customer behind the counter whilst maintaining the shop floor when [the Applicant] came up behind me and draped himself over me and said words to the effect of “I want to have lunch now”. I responded to [the Applicant] by telling him that he could not go to lunch yet as two other staff were on their break.
10 He remained at the counter serving his customer and continued to badger me for a lunch break. He then kicked me in what I would describe as a ‘playful’ way on my leg and again asked if he could go to lunch. He was being insistent and I was bothered by his behaviour especially as I was serving a customer. [The Applicant’s] behaviour was unprofessional. I turned to him and asked him to go out to the back room and I said words to the effect that I would “talk to him in a second”. [The Applicant] then went out into the back room. Approximately 2 minutes later once I had finished serving my customer and did a quick floor check I went to the back room to speak to [the Applicant].
11 When I went into the back room I saw that [Mr B] and [Mr S] were also both there. I asked [the Applicant] words to the effect of “what are you doing?” He repeated that he wanted to have his lunch “now”. I again stated that 2 others were at lunch and when they got back he could go on his break. [The Applicant] then said words to the effect of “if you don’t give me lunch now I’m going to be a naughty boy”.
12 I repeated to [the Applicant] that he would be able to go to lunch as soon as the others came back from their break. [The Applicant] again said he wanted his lunch immediately. I then said words to the effect of “you have two choices. You can get back on the floor and serve customers or you can go home”. [The Applicant] said words to the effect of “no, I am going to lunch”.
13 At this stage I did raise my voice. I was not aggressive, but I was very frustrated and felt that enough was enough. I said words to the effect of “I do not have time for this, I need you back on the floor now”. When [the Applicant] refused I then said words to the effect of “then just go home. I cannot afford this behaviour”.
14 [The Applicant] refused saying words to the effect “I will not go home”.I repeated that I would give him lunch as soon as the other staff were back but that I needed him serving customers until then. I said words to the effect that “your behaviour now is affecting advocacy”. [The Applicant] then returned to the shop and started serving a customer.
15 About 5 minutes later, whilst [the Applicant] was serving that customer a colleague returned from his lunch break. I walked over to [the Applicant] and asked him to take his lunch break when he was finished with the customer.
16 I saw [the Applicant] finish with the customer and then go to the back room and collect his things and leave the shop. I believed he was going on his lunch break. However, about 2:51PM I received a text from [the Applicant] stating: “I don’t bring NPS down. I can think of many others that do but I don’t. I am driving home.”

The Applicant claimed that three people witnessed the incident: Ms J, Mr S and Mr BR – Exhibit 3 para 12.
The Tribunal had the benefit of receiving a statement and listening to the oral evidence of Mr S. His statement is dated 31 October 2016, and was admitted into evidence as Exhibit 5. The statement contains grammatical errors that are present throughout. I have not attempted to correct the errors as the document is tolerably clear. Key extracts are set out below:
“On the morning of March 19^th 2016 [the Applicant] had turned up late, our staff meeting for the morning had already started when [the Applicant] made his entrance, which was quite disruptive, kicking his feet and stomping which was echoing through the building and caused the meeting to stop.
At approximately 12:45 pm on the above mentioned date I was out the back eating my lunch when [Ms E] came out the back and was followed by [the Applicant]. Once the door had closed [Ms E] said to [the Applicant] “what are you doing? I have several staff already on lunch already and a shop full of customers that need to be served, please go and serve someone”. [The Applicant’s] reply was “I don’t care about anyone else, I am hungry and want my break”.
[Ms E]
then said he could go next but needs to wait until someone came back from their break and again asked him to go serve customers while he waited.

[The Applicant]
again refused and demanded his break, he then started to laugh as

[Ms E]
’s reactions like it was all a joke to him. This continued for several minutes and too [Ms E] to a final point of saying “if you want your break so bad go home, either do that or go serve some customers …I’ve had enough of you badgering me for your break” He continued to laugh and said “I don’t want to go home” [Ms E] again asked him to go serve customers or go home make a decision and remove yourself from the back off.
Further to what I heard/witnessed in the back office while on my lunch break I had to review footage from the day due to an internal complaint and this also showed [the Applicant] constantly badgering [Ms E] on the showroom floor, bumping into her which is shoulders and then laughing etc, there was even a moment where he kicked her in the lower leg behind the service desk – the unfortunate thing is shortly after this our security PC was replaced by the security company and before I could retrieve the files saved showing this they had wiped it and replaced the unit.
I would also like to add on every shift [the Applicant] is disruptive to the entire team in the way of practical jokes that are inappropriate for the work place, these involve turning all the lights on/off, sticky tape on door handles, excessive anti-bacterial gel on doors, staplers benches and things of similar nature.”
Mr S was summonsed, at the request of the Applicant, to give evidence. He was able to give clear evidence of the incident, and confirmed that he was in the backroom during the whole of the verbal interchange between the Applicant and Ms E.
Mr S confirmed that Ms E had asked him for a statement, and that he had typed it out on a laptop computer within a week of the incident. It was not printed out until months later when it was dated and signed.
He stated that he observed the Applicant ‘lean over’ Ms E in the front of the shop and follow her around the store. According to Mr S, the Applicant bumped Ms E with his shoulders and was giggling and laughing. He testified that this type of behaviour continued for approximately 20 minutes. He recalled Ms E making a hand movement to the Applicant in the form of a “palm away”.
Further, Mr S’s recollection of the back room interchange was also in accordance with his statement. He testified that Ms E was agitated and frustrated, whilst the Applicant was smiling and laughing and not showing Ms E respect. After the Applicant left the room, Ms E broke down and cried, resting her head on the desk.
Mr S was cross-examined by the Applicant, but remained steadfast in his account of the incident. It should be noted, that Mr S no longer works for Telstra, and as such, there is no question that his testimony may have been coloured because of his employment. Further, the Tribunal closely observed Mr S give evidence and formed the view that he was a credible witness.
The Applicant contacted Mr BR via Facebook, and provided to the Tribunal a record of an exchange that took place on 27 January 2017. This exchange is set out below minus any graphics – Exhibit 12:
APPLICANT: Hi [Mr BR]. Hope you’re doing well. Congratulations on the new job! And happy Aus Day for yesterday I’ll just get straight to the point. You should recall an incident last year in March (19 March) where [Ms E] followed me to the back room. I remember you were standing up at the PC about 2 metres away, when I looked over you had your head down, you looked uncomfortable before walking out of the back office and to the front again. Are you able to provide me with a statement of what you heard and saw that day please, and why you left the back room? Your honesty would be appreciated.
“[MR BR]: Hey [the Applicant], I am doing well I think mate I would love to but I don’t remember much from Telstra at all. My long term memory isn’t great at all!
Hope all goes well!
APPLICANT: I understand. So u don’t remember walking out the back office that day. Do u remember someone yelling at all?
Would you be ok with answering a few yes and no questions?
[MR BR]: [The Applicant] I don’t remember anything from Telstra really only funny moments here and there[.]
But if it’s a question I can answer I will
APPLICANT: Do u remember [Ms E] yelling at me during my last shift?
[MR BR]: No sorry
APPLICANT: If you have a change of heart and decide to do what’s right just reply with what u remember, or txt or call if you prefer…I don’t think I need to tell you that if it were reversed and I had to do what was right and fair, I think you know personally I’d do what’s just
[MR BR]: Hey [the Applicant] as professional as your being you can fuck off
Don’t tell me shit that isn’t true
Don’t put shit in my mouth and don’t you dare try and say I’m doing the wrong thing by not remembering something
Have a great life loser.”
The Applicant also contacted Ms J in an attempt to gain a statement in support of his version of the incident. The material supplied by the Applicant (Exhibit 14) discloses that Ms J did not respond to the Applicant’s requests in the form of text on 25 January 2017 or email on 29 January 2017. The Applicant claims that she told him that she feared repercussions from Telstra if she came forward and supported his version of events and was “gobsmacked” by Ms E’s behaviour. However, apart from the Applicant asserting that she said this, the Tribunal did not have the benefit of hearing

Ms J confirm that this was the case.
In short, the only independent person who was in the back room and witnessed the exchange between the Applicant and Ms E, and who gave evidence, is Mr S, who does not support the Applicant’s version of events.
EVENTS FOLLOWING THE INCIDENT
On receipt of the Applicant’s email of 6 April 2016, Mr K commenced an internal investigation of the incident.
The Applicant’s workers’ compensation claim was considered by Ms D, Liability Manager of Telstra Workers’ Compensation. Ms D discussed the claim with the Applicant and asked if he would provide her with the following information – Exhibit 1 T11 p. 70:
·a statement of the events with a timeline from 19 March 2016 up to and including the Applicant’s most recent face to face meeting with Ms E;
·all documentary and factual evidence to support the claim;
·names and contact details of witnesses to the incident;
·names and contact details of medical practitioners who treated the Applicant over the past five years;
·details of prior employment;
·a Statutory Declaration addressing if the Applicant has previously sustained a similar injury or claimed workers’ compensation for a similar condition;
·information on medical treatment obtained since 19 March 2016; and
·a statement regarding the Applicant’s previous depression; when the condition was diagnosed and what caused or contributed to the diagnosis; medical treatment including scripts and dosage details.
In appreciating some of the questions posed, it is important to note that the Applicant disclosed in his claim form that he had previously received medical treatment for a similar injury/illness, and that he had taken Lexapro for depression since 2008 – Exhibit 1 T5

p. 32. Lexapro is an antidepressant of the selective serotonin reuptake inhibitor class, and is used to treat major depression and generalised anxiety.
On 17 June 2016, the Applicant, in response to the specific request of Ms D, made a Statutory Declaration where he deposed as follows – Exhibit 1 T12 p. 71:
“I have not sustained a similar injury to what I am going through at present regarding my work cover claim against Telstra Ltd. I have not in my life claimed any such injury or workers’ compensation from any one or any work place.”
On 19 June 2016, the Applicant emailed Ms D with the information he had collated in response to the specific questions posed – Exhibit 1 T 14 pp. 74 – 104. It is clear from reading this document that the Applicant spent a considerable amount of time and effort in preparing it.
The document contains a number of “screen shots” from social media platforms. The first three pages of the document outline events between 2015 and early 2016 involving the Applicant and Mr L. The Applicant claimed that Mr L had engaged in a systematic campaign of bullying against him. The subtext was that this bullying campaign was essentially homophobic.
Included in this document were screen shots of various text messages exchanged between the Applicant and Ms E during and after the incident. Insofar as these are contemporaneous and unedited accounts from the perspective of the affected individuals, they are of assistance to the Tribunal.
On Good Friday 25 March 2016 at 8:48 pm, the Applicant sent the following message to Ms E – Exhibit 1 T14 p. 78:
“I have a shift tomorrow but I don’t feel comfortable coming in.”
The following exchange then occurred – pp. 78 - 79:
(Ms E 9:02 pm) “that’s up to you, you need to understand I’m running a business on behalf of your employer. I can’t afford behaviour that will impact what I need to deliver as part of QLD. I have been very patient with you but you need to know when enough is enough.”
(Applicant 9:12 pm) “It had nothing to do with behaviour. I asked for a break. Your 100% right in that you’re running a business for the employer, and the demands are great but that shouldn’t have led to me walking out when I finally got a break at 240. I felt completely belittled and in front of others. I’m not talking about this now and sorry for a late txt on Friday. I forgot it was the long weekend. I didn’t want to send a txt today but didn’t have a choice. I’ve already missed a week of work and only now do I get a response. I know you’re under pressure but we all are.”
(Ms E 9:24 pm) “You can blame me as much as you want but I told you I have 2 people on lunch and that I couldn’t send you then but you wouldn’t let up. I never had you on for shifts all weeks from the beginning it had nothing to do with Saturday. Labour was limited and I had to do the best with [what] I had which was very little. I didn’t belittle that was your doing as I couldn’t get you to stop. When have I ever stopped you from having lunch….let me tell you never, I’m not like that. You asked me to call you whilst I was in a meeting which didn’t finish till late Tuesday night but you needed to pickup the phone and call me, you left the store without even telling me. I asked you to go to lunch after you served the customer you had and that was the last time I saw you.”
(Applicant 9:38 pm) “I sent u a txt wen (sic) I left Sat. I didn’t want to talk to u in person because I was pretty upset. And to be honest I find this very upsetting too. Something I didn’t expect. I don’t want to talk via txt about an issue like this or right now being Good Friday. I’m sorry if I didn’t let up I simply felt cornered and being honest just simply needed a break before serving the next cx. I know ur under pressure and I try and help wherever I can too. Including with my at times blatant humour. Don’t think I’m upset with u, it’s the demands that’s caused this in this case but I didn’t think u would react in that way but I also understand how busy we are and the fact our numbers have fallen again. We can only do our best. It’s fine, if u want to talk and are at work tomorrow I’m ok with that. I don’t want to upset u.”
Ms E sent the final response of that evening at 9:45 pm as follows – p. 79:
“…I got that upset that I couldn’t even attend an engagement party that I was invited to. I will be at work tomorrow and yes I believe we need to have a chat. Thank you I had a nice day today I went to church and relaxed. Hope you had a good day too.”
The next day the Applicant did not report for work and Ms E sent the next two text messages at 9:03 am and 9:56 am – p.80:
“Good morning boys where are you.
So I take it you don’t want to work”
At 10:57 am the Applicant responded – p. 80:
“I do. I need to work. My bills sadly won’t pay themselves.”
The following text exchange ensured ( p. 80):
(Ms E 11:03 am)“You had a shift today and after last night I honestly thought you would be here but we have a no show. Do you think it would have been a good idea to tell me that [you] weren’t coming in so that I could organise someone else…….”
(The Applicant 12:27 pm) “Sorry I’m been doing chores and had to head to the shops. I honestly thought u knew I wasn’t coming in. Of course I would have said get some1 else in but I thought u had done that. I hope you haven’t been swamped today. If I’m coming back in next week can u give me a call when u get the chance please?”
Exhibit 1 (the “T documents”) contain a number of medical certificates provided by the Applicant’s GP, Dr Farrukh Zia – Exhibit 1 T4 p. 26, T6 p. 46, T18 p. 110, T21 p. 114, T28 p. 130 and T29 p. 131.
The first medical certificate was not issued until 22 April 2016, nearly a month after the incident, even though the Applicant was first seen by Dr Zia for the injury on 29 March 2016. The stated cause of the Applicant’s injury was: “Asked for the break when manager took him to the office and started shouting at him in front of two other staff members and then asked him to leave”. Dr Zia backdated the Applicant’s capacity to work to 19 March 2016 and certified that he was unfit to return to work until 30 April 2016 – T4 p. 26.
Dr Zia again examined the Applicant on 30 April 2016, and certified that he was not capable of working until 15 May 2016 (T6 p. 46). It should be noted, that there is a typographic error in the certificate, as Dr Zia inserted “15/04/2016”, instead of 14/05/2016.
Subsequently, Dr Zia certified that the Applicant was incapable of working until 30 June 2016 (T18 p. 110), then to 31 July 2016 (T21 p. 114) and finally until 30 September 2016 (Exhibit 1 T 29 p. 131).
The medical certificates were in the form of official WorkCover certificates and they were forwarded to Telstra’s Workers’ Compensation area.
The Applicant has a practise of recording some of his telephone conversations without informing the other person. Leaving aside the appropriateness or legality of this activity, the Applicant prepared a transcript of a telephone conversation with Mr K on 8 April 2016 – Exhibit 1 T14 pp. 84 – 86.
While the conversation contains nothing intrinsically important, it does illustrate one key matter. Mr K, a very senior Telstra executive, took the time to personally ring the Applicant and engaged in a civil, constructive and extremely courteous conversation designed to resolve outstanding issues. A reading of this transcript reinforces the impression that Telstra approached the Applicant’s complaints in a pro-active and highly professional manner. Mr K is reported to having said – p. 85:
“Ok so, what I’ve asked [Ms E] to do is to contact you, ah you know either today or tomorrow and set at time for the 2 of you to meet and to sit down and work through you know ah a ah a plan to, to err to ensure that you’re both comfortable with what’s needed to be done. At the end of the day, I’m employed, [Ms E]’s employed, and you’re employed to serve our customers, and that’s what it’s all about, and at times, you know retail environment it may or may not be the opportunity to have that regular you know sort of ah consistent sort of approach to what we need to do around our day. So I just need everyone working together, you know. And I want everyone respecting each other, that’s what we need…what I need you to do is I need you to meet with [Ms E] and then let me know if there’s any further issues from there. But I’m very confident that you, the period that you’ve been with Telstra, and [Ms E] is an experienced and mature person, should be able to work through this, ah and, and come up with a workable solution between the 2 of you.”
The Applicant and Ms E had a brief telephone conversation on 12 April 2016 and it was agreed that they would meet on 14 April 2016 – Exhibit 1 T14 p. 87. At 10:20 am on the morning of the arranged meeting, the Applicant sent the following text message to

Ms E – p. 80:
“Good morning [Ms E]. I wanted to come in today for the meeting but I can’t bring myself to go in. Because of how things went and I don’t believe you would agree at all, but in my opinion I feel as though you were highly stressed and took that out on me. I was stressed that day too but I didnt yell at anyone and if [I] had upset any1 [I] would have apologised. I would have accepted your reaction a lot easier if u had simply acknowledged it on the day or at any point since but instead u chose to blame me completely and it’s clear that u had no intention in trying to patch things up. I’ve missed almost a month of work and believe me that’s not easy. It’s silly a break was taken this far. It really is. Again I know you won’t c it that way and will in fact c this as some sort of attack when it’s not. I hope u understand[.]”
According to the Applicant, Ms E telephoned him at 10:53 am in response to the above message. His account of the telephone conversation is as follows - p. 87:
“I was made to feel as though it was my entire fault, I was left questioning my recollection of events, I wanted to believe [Ms E] leaving me feel as though I was at fault and questioning myself. [Ms E] specifically said events caught on camera backing up her version of events, and staff too would back up her recollection of events. I was not in a good place during or after phone call. Requested to see recording ([Ms E] said ok), and that I would formally apologise and resign if I was in the wrong. [Ms E] stated words to the effect; “not to worry, I can fight my own battles”. I was also asked again about going in to sign “what Telstra’s expectations of me are”, I questioned this and asked if this was a new requirement for all staff, my reasoning; I had already signed relevant paperwork on starting with Telstra, and the fact I was an experienced Telstra employee. I was informed this was not a new requirement, but I was required to sign it. Expressed that I would not be comfortable in signing.”
The following day a further telephone conversation occurred, and it was agreed that the Applicant would go to the Capalaba Telstra store at between 5:30 – 6:00 pm. Apart from the Applicant and Ms E, another Telstra employee, Mr T, was present. The Applicant’s account of this meeting is as follows – Exhibit 1 T14 p. 88:
“Feeling relieved after the meeting with [Ms E], like a huge weight had been lifted from my shoulders.
[Ms E] had a support person at the meeting ([Mr T]). [Mr T] is not from the Capalaba Telstra Store and is a CA, [Mr T] was not working at the store at the time of events ([Mr T] was working at the Garden City Telstra Store after being transferred from the Logan store). [Mr T] was in fact brought into the store very shortly after my shifts had stopped. This is apparently to assist [Ms E] with managerial duties and alleviate some of the responsibilities placed on [Ms E]…
I brought up [Mr L], I mentioned I believed some of his actions towards me pointed to him being a bigot, [Ms E] used the word; homophobic. I was told we were not there to discuss [Mr L], and that it wouldn’t be appropriate to discuss it, especially with [Mr L] not there to defend himself. I agreed but said it had definite relevance.
No camera footage to support claim. Camera footage supports my version of events. [Ms E] said some footage had “disappeared”, the part where [Ms E] claims I was kicking and shoving her requesting a lunch break at the front of the store and in front of a customer. Footage was apparently there but now somehow not. Again, footage supports my version of events, [Ms E]’s attempts to justify her reaction to me requesting a break were not justified. [Ms E] stated she was under a lot of pressure, being the only manager on duty for the past 6 weeks, [Ms E] stated she was receiving no support from any of the staff.
Timing in the camera was brought up by me. I noticed the times were reflective of the times I gave, and not what [Ms E] stated. [Ms E] stated I wanted to go on a break much earlier, the camera footage showed the time to be approximately 1:15 PM, I stated around 1:30 PM from recollection. [Ms E] said the timing of the videos is out and actually incorrect. I replied, we need to get [Mr S] to fix that ([Mr S] is our in-store Technician).”

The Applicant then outlined some other matters before returning to the incident – Exhibit

1 T14 p. 89:
“The morning prestart was brought up, from recollection by me. I stated [Ms E] was not in a good mood from the start of the day. That morning I came in somewhere between 8:50-8:55 AM for day start. I was my usual happy self and was smiling and tapping my feet as I approached the front counter where everyone was standing for day start (day start is usually held in the back office but is sometimes out the front). [Ms E] spun around and aggressively told me to be quiet and listen. [Ms E] stated she was trying to do day start and seemed furious. I apologised and quietly went behind the counter to listen in on day start. [Mr S] was beside me and said something sarcastic, but I don’t recall what. [Ms E] responded by asking [Mr T], how would you have reacted? [Mr T] said words to the effect probably the same. I justified my actions by reiterating I was trying to lighten the mood because day start can have a huge impact on a lot of the staff and the rest of the day (many staff complain amongst themselves after an aggressive day start).”
The Tribunal also has an undated letter from Mr T to Ms E, which contains

Mr T’s recollection of the meeting – Exhibit 1 T37 p. 224:
“The meeting began by yourself and [the Applicant] discussing the issues that had occurred between you and the fact that [the Applicant] had gone straight to [Mr K] in regards to these matters. Most of the meeting consisted of you asking [the Applicant] why he did what he did (pestering you to give him a break and when you told him 2 people were already on break he threatened to walk out of the shop) and generally discussing the matter. After this discussion you showed

[the Applicant]
the footage from the store security cameras. This footage showed [the Applicant] laying on you, poking you and generally pestering you. At this time [the Applicant] said “I don’t remember even doing that”. The discussion continued by [the Applicant] admitting that he had come into the store under the influence of prescription medication, namely Valium. After this [the Applicant] continually asked “do you want me to withdraw the complaint?” and “I will quit if you want” in various ways. I honestly believe he was trying to get you to admit that you would like him to do this. I recall you never saying to do so, in fact saying “only you can make that decision” over and over. I eventually said to [the Applicant] “you know that

[Ms E]
cannot ask you to do this, however if you feel as though now you have seen the footage that there is no need to proceed then that is your choice alone”. At the conclusion of the meeting [the Applicant] continually apologized and at NO point did he request the video footage or pictures of any description.”
Mr T testified on 1 March 2018. He informed the Tribunal that he ceased working for Telstra in September 2016, and the above undated statement was prepared sometime between September 2016 and March 2017. Mr T stood by his statement and stated that his recollection of the video footage is that it shows the Applicant and Ms E standing close together, with the Applicant leaning on her and grabbing her arm.
As Mr T ceased working for Telstra some time ago, there could be no suggestion made that his recollection of the meeting might be clouded by his employment situation. Further, the Tribunal formed a very favourable view of Mr T as a credible witness.
The Applicant’s notes (Exhibit 1 T14 p. 90) record him having feelings of “hopelessness and bewilderment” and being “confused” about his discussions with Ms E and having negative feelings about working at the Capalaba store. Conversely, he repeatedly complained that “I do not have any hours” and that he was “being treated differently”. As to the last matter, the Applicant emailed Mr K on 19 April 2016, and provided him with his account of the 15 April 2016 meeting. The email concludes by saying: “My expectations were to return to work without being affected and with the same hours” – Exhibit 1 T14 p. 90.
OUTCOME OF THE INTERNAL INVESTIGATION
Mr K spoke to the Applicant on 22 April 2016 (Exhibit 1 T14 p. 91) and a number of emails were exchanged after that time (Exhibit 1 T14 pp. 92 – 94). Amongst those emails was one dated 1 June 2016, wherein Mr K offered to meet with the Applicant to discuss the investigation into his allegations, and, in particular, the findings – Exhibit 1 T14 p. 93. Despite various contacts thereafter about organising a meeting, the notes do not disclose that such a meeting ever occurred.
On 4 July 2016, Mr K wrote to the Applicant informing him of the outcome of his internal investigation – Exhibit 1 T20 p. 113:
“…I can confirm that a thorough investigation into your allegations against [Ms E] has been completed. The allegations were not substantiated as there was no evidence of unreasonable behaviour, repeated or otherwise.
Under the policy, bullying is defined as:
“Repeated unreasonable behaviour”, directed towards an employee, customer, contractor or other person that creates a risk to their health and safety.
“Unreasonable behaviour” is any behaviour which, in particular circumstances, a reasonable person would expect to victimise, humiliate, undermine or threaten the person being bullied.
Whilst this brings the investigation against [Ms E] to a close, I note you have raised new allegations against [Mr L]. As you know, Telstra takes all allegations of this nature seriously. In order to look into this matter effectively, I would like to meet with you to discuss your concerns and obtain more specific information.
Please let me know when you are in a position to meet with me in relation to this matter.
Finally, you have advised that you remain unfit for work at this stage. Please notify me when you are fit to return to duty and I will ensure that your availability is noted on the register for casual employees in line with our normal processes.”
Not surprisingly, the Applicant was unhappy with the outcome of the review, and wrote to Mr K on 7 July 2016 in the following terms – Exhibit 1 T22 p. 115:
“I am absolutely appalled by the response dated 4 July 2016.
Your response warrants almost no relevance to my concerns raised on 6 April and since that date, and there appears to be almost no connection in response to my treatment on that day (19 March), prior, or since. At no point did I use the term “bullying” in my concerns raised relating to [Ms E]. My concerns related to an incident where I was refused an allowed 30 minute unpaid break as set out by our EBA, I was then instructed to leave the store by [Ms E], then asked to serve a customer by [Ms E], and finally went on a break at 2:40 PM. All of which can be verified by video footage on the day.
Further to this, my shifts were immediately stopped after this event…”
WORKERS’ COMPENSATION DETERMINATION – 12 JULY 2016
Apart from this investigation, Telstra also considered the Applicant’s workers’ compensation claim, and issued a Determination on 12 July 2016 disallowing it.
First, Ms D accepted that the Applicant suffered from the claimed condition – Exhibit 1 T23 p. 118.
Second, Ms D found that the Applicant’s employment with Telstra did not contribute to, to a significant degree, the aggravation of the claimed condition.
In reaching this conclusion, Ms D made two critical findings.
First, she noted that the Applicant was being treated for pre-existing depression, and had been prescribed anti-depressant medication since 2008. Further, the Applicant’s consultation with Dr Zia on 29 March 2016 was to renew his prescription for Diazepam. Diazepam was first marketed as “Valium” and is used, inter alia, for its calming effect on persons suffering from anxiety. Ms D found that there was no proper evidence to support the contention that the Applicant’s treatment plan for his pre-existing condition had changed as a result of the incident – Exhibit 1 T23 p. 118.
Ms D’s second finding went to the heart of the Applicant’s claim. She found that on balance, the incident claimed to have taken place on 19 March 2016, regarding bullying behaviour by Ms E, did not occur. Consequently, she found - at Exhibit 1 T23 pp. 118-119:
“…there is no sufficient connection between the Incident you claimed to have occurred at work, your allegation of bullying and the aggravation of your Claimed Condition.”
The remainder of the Determination focused on whether the condition arose from reasonable administration action taken by Telstra. Ms D found that, even if she had accepted that the Applicant’s claimed condition was aggravated to a significant degree by the incident, such aggravation arose from reasonable administrative action taken in a reasonable manner by Telstra. In that regard, the following observations were made at Exhibit 1 T23 p. 120:
“a. it is reasonable for your manager to schedule team breaks and I accept that [Ms E] was in a position to make that decision;
b. there is no evidence to support that [Ms E] did not undertake the decision to deny you your break when requested in a reasonable manner;
c. as a casual employee your rostered shifts are determined by Telstra’s demand for labour and budget allowances. It is reasonable for Telstra to reduce your shifts based business requirements and budget restraints. There was significant reduction in labour across the entire business that affected many casual employees, not just you;
d. [Ms E] advised you in her text message dated 25 March 2016, and during your telephone conversation with her on 31 March 2016, that the Incident had nothing to do with the reduction in your shifts; that she made no initial change to the shifts immediately following the incident and due to labour being limited you would not receive shifts for April 2016;
e. [Mr K] confirmed the advice given by [Ms E] that rostered shifts were reduced across the broader team for casual employees due to budget restraints;
f. the reduction in rostered shifts has been a driving point in your belief of being treated unfairly;
g. it was not until after your conversation with [Mr K] on 22 April 2016 where you raised your concerns with no rostered shifts that an Incident report was raised; you presented to Dr Zia who certified you incapacitated for work; and you lodged your claim form dated 27 April 2016;
h. I accept that there is direction connection between your presentation to Dr Zia and being certified incapacitated for work and lodging your claim for compensation due to the loss of rostered shifts associated with your role as a casual employee;
i. I do not accept that the reduction in your rostered shifts was due to the Incident but was entirely due to labour and budget restraints for Telstra casual employees in your business unit;
j. failure to receive rostered shifts falls into the exclusionary provisions of failure to retain a benefit and failure to retain a benefit;
k. I accept that your Claimed Condition falls under the exclusionary provisions of reasonable administrative action under the Act; and
l. I accept [Ms E] undertook those actions in a reasonable manner.”
REVIEWABLE DECISION – 31 OCTOBER 2016
On 21 September 2016, the Applicant requested a reconsideration of the Determination – Exhibit 1 T32 pp. 135 – 136. The Applicant outlined nine grounds for seeking reconsideration. One of those grounds was that “video footage in support of my claim has been withheld by Telstra Ltd.” According to the Applicant, he telephoned Ms D on 13 July 2016, requesting a copy of the video footage, but this request was declined.
The reconsideration requested was forwarded to Mr Shawn Hosking, a Telstra Workers’ Compensation Reconsideration Officer. In his response of 21 September 2016,

Mr Hosking said at – Exhibit 1 T32 p. 135: “Are you able to obtain a copy of video footage through the internal Telstra process. I do not have access to the footage.” The Applicant replied as follows at – Exhibit 1 T32 p. 138:
“Regarding the video evidence, I made various attempts to obtain this, via writing and phone, all attempts failed.
[Ms D] at one point said she would try and obtain the footage. After not hearing back regarding the footage, I asked [Ms D] again, who then suggested I contact [Mr K] regarding the footage. [Mr K] responded only Telstra HSE or Telstra Corporate Security is able to request the footage, this email was forwarded to [Ms D].
Slater and Gordon’s attempts to obtain the footage was also unsuccessful, as outline in my email to you 14 September. Attached is the letter received by Slater and Gordon from Telstra Ltd.
Given the above, I believe it is best Telstra HSE obtain the footage, please correct me if I’m wrong, as all attempts I made were blocked.”
Mr Hosking said that he would “…discuss with Telstra HSE group/Telstra Corporate Security and advise of the outcome” – Exhibit 1 T33 p. 137.
On 22 September 2016, the Applicant forwarded to Mr Hosking 60 pages of material in support of his reconsideration request (Exhibit 1 T34 pp. 142 – 202). Much of the material had previously been provided to Telstra and was before Ms D when she made her decision – Exhibit 1 T14 pp. 74 – 104.
However, the Applicant updated the material to deal with events from July 2016 onwards. The Applicant provided this information from 8 September 2016 – Exhibit 1 T39 pp. 200 – 201:
“Received letter dated 7 September 2016 by email from Slater & Gordon advising;
“…Telstra have advised by way of letter dated 15 August 2016, that they do not hold the requested material, namely CCTVB footage from Capalaba Telstra Store for the period Saturday 19 March 2016 between the hours of 11am and 4pm for all areas of the store. Telstra have also advised that if summonsed, the same letter will be produced advising they do not have the requested footage”.
Telstra are clearly withholding the evidence. Telstra have also demonstrated that they have no issue with lying under oath if summonsed which is nothing short of perjury. Telstra’s intentions of the spoliation of evidence are to hide the events of 19 March.
SNP Security (third party), also known and marketed as Telstra SNP Monitoring under a Joint Venture, is Telstra’s 24/7 security monitoring service, which includes video surveillance. SNP should have advised the store of any interruptions to the video surveillance if this was the cause of the missing video footage), and recorded such an event. We were not advised of any such interruption to my knowledge, besides the fact that the video in question was viewed by me, [Ms E], [Mr T], [Mr S], and at least 2 other staff members who either saw the video, or were in discussion with [Ms E] about. And including correspondence between myself and Telstra directly referencing and requesting the footage.”
Mr Hosking handed down his reconsideration decision on 31 October 2016, and affirmed the Determination of 12 July 2016 – Exhibit 1 T38 pp. 225 – 231.
The first matter to note, is that Mr Hosking was also unable to obtain the video footage of the incident. He said at – Exhibit 1 T38 p. 228:
“12. You make mention of not having in your possession CCTVB video footage from 19 March 2016. I can advise I was unable to obtain the video footage after liaising with [Ms E] who advised that the footage of 19 March 2016 is unavailable as Telstra had changed over security companies and the business was provided with new hardware/hard drive.”
Mr Hosking found that the Applicant suffered an ailment for the purposes of the Act, namely anxiety, depression and stress – Exhibit 1 T38 pp. 229 – 230.
However, Mr Hosking “[was] not satisfied that the evidence supports a conclusion that you’re (sic) Claimed Condition was aggravated, to a significant degree, by your Telstra employment or had developed as a result of your Telstra employment.” – Exhibit 1 T38

p. 230.
Mr Hosking found, in the alternative, that Telstra had “taken reasonable action in a reasonable manner” which excluded the Applicant “from compensation under the SRC Act.” I assume that what Mr Hosking was intending to express, was that the reasonable administrative action proviso in s 5A(1) of the Act had been enlivened.
THE HEARING
A hearing was convened in Brisbane on 1 – 2 March 2018. The Applicant was self-represented and Mr Clark of Counsel appeared for Telstra. The Applicant gave evidence and was cross-examined. Evidence was also given by Mr S, Mr K, Ms E, Mr T and Dr Varghese.
At the hearing, leave was given to the parties to provide further material. Some disagreement arose about certain documents being subsequently tendered by the Applicant, as well as some other matters.
I perused the documents subsequently provided by the Applicant. I formed the view that they did not advance his case. If I thought otherwise, I would have convened a further directions hearing so that Mr Clark could have addressed me on why I should not have admitted them into evidence.
The Applicant, as not only a self-represented party, but as a person with a history of medical issues, required the Tribunal to provide an appropriate degree of leeway to ensure that he was accorded procedural fairness.
ISSUES
Telstra contended, and it was not disputed, that the issues for determination were as follows (Respondent’s Statement of Issues, Facts and Contentions para 2.1):
(a)whether the Applicant suffers a condition outside the boundaries of normal mental functioning and behaviour; and if so
(b)when such a condition arose;
(c)whether the onset, aggravation, acceleration or exacerbation of that condition was contributed to, to a significant degree, by the Applicant’s employment with Telstra; and if so
(d)
whether the exclusionary provisions in the Act apply, in particular, the proviso to

s 5A (reasonable administrative action).
Mr Clark of Counsel, drew the Tribunal’s attention to a section of Dr Varghese’s first report, which dealt with the relationship between the Applicant’s mental ailment and his employment – Exhibit 4 p. 16:
“(v) With respect to the question of whether issues and events in the workplace contributed to his psychiatric difficulties, the issues are complex and require a judgment of fact which is not the role of a medical evaluator.
It seems there are three elements to [the Applicant’s] claim for compensation. In the first place he reports that he was discriminated against and treated inappropriately because of his sexual orientation. Secondly, he reports an incident of 19 March 2016 where he was yelled at inappropriately by his supervisor in the presence of others. Thirdly, he reports that following the incident he was not offered any more shifts such that he has been effectively unemployed. He reports that this is despite his willingness to return to work and to discuss with the supervisor issues with respect to the incident.
(vi) If [the Applicant] was indeed discriminated against and treated poorly because of his sexual orientation by a fellow worker, then such a situation over time may well have contributed to his previous Dysthymia. If his account is not accepted as correct, then the pre-existing issue of Dysthymia/Depression can be accounted for as arising from a mixture of constitutional factors and significant psychosocial adversity as described above, in particular his diagnosis [of a serious illness] and relationship difficulties at one stage.
(vii) With respect to the alleged incident of 19 March 2016, if [the Applicant’s] account is correct then the incident may well have given rise to an Adjustment Disorder and intensified any pre-existing Dysthymia. There is some indication that [the Applicant] was not in full remission from Dysthymia prior to the incident. As to whether the incident occurred as described and whether the team leader behaved appropriately and fairly in the circumstances is a matter for the Tribunal to determine.
(viii) What does seem uncontested on the data available is that [the Applicant] was not offered any further shifts at work following the incident although the question of whether this was appropriate in the circumstances is a matter for the Tribunal to determine If one accepts [the Applicant’s] account then the resultant unemployment with consequent financial difficulties combined with other issues he nominates as described above can be regarded as having precipitated a recurrence of Major Depression with deterioration since around April 2016. This episode appears to have been more than moderate in that it was accompanied by suicidal ideation and self harm. I note that in addition to medication by the general practitioner he had psychological treatment.”

The Tribunal accepts that in determining paragraph (c) of the issues outlined above, it is appropriate to focus on the three elements outlined by Dr Varghese. Nonetheless, even if the Tribunal makes a negative finding for the Applicant on all three elements, consideration will still need to be given to the principles of law expounded in

Wiegand v Comcare
(2002) 72 ALD 795.
The final question of reasonable administrative action need only be dealt with if a favourable view is reached on any of the three elements outlined by Dr Varghese.
LEGISLATION
Subsection 14(1) of the Act, provides that compensation is payable in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment.
“Injury” is defined by s 5A(1) as follows:
“(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.”
The term “reasonable administrative action” is defined in s 5A(2) 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 o 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 by s 5B(1) to mean:
“(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.”
“Significant degree” is defined by s 5B(3) to mean “a degree that is substantially more than material.”
“Aggravation” is defined in s 4(1) to include “acceleration or recurrence.”
Finally, “ailment” is defined in s 4(1) to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
CONSIDERATION
Applicant’s Medical Condition
The only medical evidence presented to the Tribunal were the medical reports of Dr Zia, two reports of Dr Varghese and his testimony.
Having examined the Applicant and subsequently having the benefit of perusing all of the summonsed medical material, Dr Varghese provided this diagnosis – Exhibit 16 pp. 4 – 5:
“The principal clinical issue is that [the Applicant] suffers from Recurrent Major Depression meaning that there has been more than one episode of Major Depression. The first reported presentation was in late 2003…although there is reference to problems two years prior to this with anxiety and weight loss. By 2003 the depression appears to have been quite severe as revealed by the symptomatology described with secondary dysmorphic phobia and also paranoid ideation as well as some OCD symptoms, all of which are likely to be manifestations of depression occurring in the context of personality vulnerability.
[The Applicant] appears to have recovered from this episode presumably as a result of treatment by Dr Theodoros…Alternatively there has been remission in line with the natural history as Major Depression is episodic as against a chronic condition.
The subsequent history is one of chronic dysthymia perhaps with periods of remission and intermittent Major Depression which has been in the mild to moderate range as against severe, presumably as a result of ongoing treatment with antidepressants (Lexapro [Escitalopram]).
On the data available it seems that although [the Applicant] experienced some stress at work when he first joined Telstra there is no evidence of any Major Depression until after he ceased work with Telstra. There may have been a degree of dysthymia of varying intensity. By his account his work performance at Telstra was good. Data from his employer as to his performance in comparison to others could confirm this.
It is possible that [the Applicants’] experiencing that he was discriminated against on the basis of his sexual orientation is a manifestation of social anxiety secondary to dysthymia and personality dysfunction however it seems to me that this issue is ultimately an issue of fact to be determined. If it was the case that [the Applicant] was not discriminated against as he claimed, then I would understand his experiencing discrimination as being secondary to social sensitivity in the context of depression and personality.
The issue of whether he was in fact shouted at and treated unfairly by his superior in the incident of March 2016 is again an issue of fact as is the question of whether he was unfairly denied further shifts as discussed in my previous report.
[The Applicant] does appear to have suffered an episode of Major Depression following his employment at Telstra as emerges from the data as described in my previous report. This Major Depression is now in remission and [the Applicant’s] current condition can be considered a dysthymic disorder which is a continuation of what was present previously.
Thus overall although there is new information which confirms that the pre-existing issues go back a long way, and moreover that there are significant issues of personality, my opinion on the clinical issues has not substantially changed.”
Telstra does not dispute this diagnosis.
Reference can be made to Comcare v Mooi (1996) 69 FCR 439 where Drummond J made the following observations (443 - 444):
“The definition provisions, which bring within the concept of “injury” mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an “injury” within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe…in my opinion, [the] expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.”
The undisputed evidence before the Tribunal, is that the Applicant has suffered various degrees of mental illness for most, if not all, of his adult life. Whatever label can be placed on the ailments he has suffered is not important. As Drummond J observed, the requirements of s 14 are not founded in an exercise of trying to fit a person’s illness within a particular and current diagnostic label. A label, it should be noted, that may change and morph over time with the advancement of medical science. Rather, as his Honour found, the true focus of a decision-maker is to ascertain, having considered the evidence, whether an applicant has or had a condition outside the boundaries of normal mental functioning and behaviour. From this perspective, there is no doubt that the Applicant has had for approximately two decades a condition, or conditions, that have manifested in him operating out of the boundaries of normal mental functioning and behaviour. While that ailment (or ailments) has (have), over time, got better and worse and improved with medication, is not to the point. The reality is that the evidence discloses that the Applicant has a longterm condition that distinguishes him from most in the community and impairs his ability to function objectively.
Accordingly, the Tribunal accepts that the Applicant does have a mental ailment that falls within the description of “anxiety, depression, stress”.
When did this condition arise?
The next issue is when this condition arose. Again, the medical evidence (specifically, the reports of Dr Varghese) strongly suggest that the Applicant has been suffering from a range of mental ailments since at least 2003. The first diagnosis by a psychiatrist was in 2004, and the Applicant has been prescribed antidepressant medication since at least 2008. Whether the onset of the condition was circa 2001, 2003, 2004 or 2008 is not critical for the disposition of this matter. What can be accepted with certainty, is that the Applicant’s mental ailments preceded his work at Telstra by a number of years.
Whether the onset, aggravation, acceleration or the Applicant’s ailment was contributed to, to a significant degree, by his employment with Telstra.
As indicated above, there are three factual matters that require evaluation.
Was the Applicant discriminated against and treated inappropriately because of his sexual orientation?
The Applicant contends that he was subjected to inappropriate homophobic behaviour by Mr L whilst working at the Capalaba store. Outlined below are the allegations that the Applicant put to Ms D and Mr Hosking concerning Mr L – Exhibit 1 T14 pp. 76 – 78, T34 pp. 143 – 145:
“2015 – [Mr L] has repeatedly said hi and bye to others while intentionally leaving me out, he goes as far as mentioning other peoples’ names and leaves mine out only. This has included [Ms E] where [Mr L] has said bye to [Ms E] and not me even though we’re all in the same spot, on [Mr L]’s departure I would mention to [Ms E] how he’s rude and [Ms E] would simply answer with yes I know don’t worry about it, or words to that affect.
2015
– [Mr L] has made various discriminatory and homophobic comments towards me, one such example is a note he wrote and gave to another employee, stating “don’t let him see it”…There is another example from Facebook where

[Mr L]
states he doesn’t think I’m qualified to replace a dummy, that note has since disappeared. I have additional posts I can provide if necessary…
Approx. February 2016 [Mr L] had recently come back from a prolonged break, on his return and seeing me, [Mr L] said, “I thought I should say hi so I’m not being rude”, he was not being sincere at all.”
The note referred to in the second paragraph is set out below – Exhibit 1 T35 p. 212:
“He can hold a dick but not chopsticks. HUH”.
This is not by any means, a full account of the Applicant’s claims of inappropriate behaviour by Mr L. The Applicant expanded on his allegations against

Mr L in a document he forwarded to Mr Hosking on 26 September 2016 – Exhibit 1 T35 pp. 203 – 217.
He outlines a “prank” he was subjected to, which involved placing his car for sale on the internet site Gumtree – Exhibit 1 T35 p. 204:
“…last year when a few of the team members decided to play a prank on me which involved placing an ad for my car on Gumtree…which resulted in my phone receiving around 150 missed calls and text messages within 30 minutes…[Mr L] had printed a For Sale sign to place on my car. I went to [Ms J]’s house after this event and during this time I received a text message from [Mr L] stating; the next time I see you I’m gonna punch you in the face. [Ms J] was horrified by the message and told me to show it to [Ms E]. I was very concerned, so the next day I spoke to [Ms E] about the incident, however I do not recall if I had shown her the text message or not. [Mr L] came into work but didn’t say a thing.”
In his two page statement of 20 October 2017, Mr L responded to the Applicant’s allegations. It should be noted, that the Applicant supplied to the Tribunal his response to Mr L’s statement in a letter dated 6 November 2017. This document was not formally admitted into evidence, but having regard to the fact that the Applicant was not legally represented and that the second day of the hearing became chaotic, it is appropriate to have regard to it.
Mr L admitted to writing the inappropriate note quoted above, but added that – Exhibit 8 para 7:
“It was written as a friendly joke and not intended as an attack against

[the Applicant].
”
The Applicant in his letter of 6 November 2017, outlined the background to this incident and, with some justification, says that it is incorrect to characterise the note as a friendly joke. Instead he categorised it as a “revolting insult”.
In response to the allegation that he was deliberately rude to the Applicant, Mr L said at – Exhibit 8 para 8:
“After [the Applicant] and I ceased to be friendly with one another I did once neglect to say goodbye to him while the store was closing after hours. However I was always professional in my dealings with him while at work. Later in T14 [the Applicant] complains that I did say hello to him after a prolonged break.”
Mr L refers to a Facebook exchange, a screenshot of which is contained at Exhibit 1 T14 pp. 76 and 77. The copy before the Tribunal is faint and difficult to read. However, it appears to be an exchange between Ms E, the Applicant and Mr L out of work hours. There is a brief exchange between Ms E and the Applicant about what appears to be a television program (the Simpsons), and Mr L said at – Exhibit 1 T14 p. 76:
“I don’t think [the Applicant] is qualified to replace a dummy”.
The Applicant’s reply was:
“Thank you [Mr L] u r spot on. I am not a qualified mock-up”.
The Applicant makes much of this exchange, but an objective reading comports with Mr L’s description that this was simply an exchange of “jokes”, which the Applicant was obviously part of.
While Mr L denied that he said negative things about him to staff, he seemingly contradicts himself when he goes on to say at - Exhibit 8 para 10:
“Other staff members have complained to me about [the Applicant’s] unprofessional behaviour at the store. I have also complained about [the Applicant’s] unprofessional and immature behaviour to members of the store management team.”
There is of course, a great difference between making negative comments about a co-worker in an unprofessional and disparaging way and, on the other hand, discussing poor work and personal behaviour to co-workers and management.
Mr L denied the other allegations, but one response in particular, needs to be commented upon - at Exhibit 8 paras 15 – 17:
“15 I did send [the Applicant] a text message in which I threatened to punch him if he did not remove my number from an online ad. I sent this message at night, after work, in response to [the Applicant] posting my number in an advertisement online which resulted in me receiving many calls and messages about selling a vehicle. I was angry and frustrated and sent the message in the heat of the moment but at no time did I ever intend to punch [the Applicant].
16 I do not understand why [the Applicant] posted my phone number online but I believe it was intended to be retaliation for the prank that others pulled on

[the Applicant]
when they advertised his car as being for sale. I had no involvement in instigating the prank and I deny [the Applicant’s] at T35 that I had printed a For Sale sign to place on his car.”
In the Applicant’s letter of 6 November 2017 he:
(a)admits that he played a prank on Mr L by texting some of the people who wanted to purchase his motor vehicle and providing them with Mr L’s number. He claims that he only sent a few text messages, but it is obvious that a number of people contacted Mr L;
(b)acknowledges that the For Sale sign, which he says was printed by Mr L, “didn’t make it to my vehicle, or in the ad”; and
(c)concedes that “[Mr L] had little to do with placing the ad, but he knew about it and included himself in it.”
What transpires is that staff members of the Telstra Capalaba office, including the Applicant, were engaging in ‘skylarking’. This conduct was immature and unprofessional, but it does not suggest a pattern of bullying or homophobic behaviour, and, insofar as the Applicant was engaging in such conduct himself and targeting an individual who “had little to do with placing the ad”, questions can be raised about his own culpability.
Fundamental to reaching a factual finding, where there are divergent points of view from the participants involved, is to evaluate which of the persons is most likely to provide the most credible version of events; subjective, as it always is.
In this matter, the Tribunal did not have the advantage of observing and evaluating the testimony of Mr L. All that the Tribunal has before it is the untested statement he provided. However, in addition to his statement, is the evidence of Ms E, which, as previously noted, corroborates key elements of his statement.
It is important at this juncture, to make some findings about the evidence that was given by Ms E.
Ms E presented as a mature, sincere and very objective witness. She neither attempted to avoid answering questions, nor provided qualified answers. Her testimony was unadorned and could be assessed in an objective manner. At one point during her testimony, when being cross-examined by the Applicant, he sought, without notice, to play a recording he had made, without her knowledge, of a telephone conversation they had. Mr Clark strenuously objected to allowing the recording to be played. His objection was not upheld; the recording was played. It was instructive. Far from undermining the credibility of Ms E, it bolstered it. What transpired was that even outside of work hours in a delicate situation, Ms E epitomised professionalism and objectivity.
Ms E stated (Exhibit 7 para 31) that she was unaware that Mr L had allegedly homophobically bullied and harassed the Applicant. Further, she stated that at no time, had the Applicant made any complaints to her about Mr L or anybody else.
A close reading of the documents does not support the Applicant’s contention that he was subjected to homophobic, or, indeed, any type of workplace bullying. Much of the material relates to out of work hours social media chatter, and the material relating to the workplace itself is relatively minor.
There is not one piece of evidence that supports the contention that the Applicant was marginalised, humiliated, threatened or bullied because of his sexual orientation.
On the contrary, according to Mr S, the Applicant engaged in disruptive and immature behaviour in the workplace, involving practical jokes against his co-workers – Exhibit 5.
I do not discount that the Applicant and Mr L did not have a positive relationship, and that Mr L may have been less than friendly to the Applicant. I do not accept all of Mr L’s account as contained in his statement, as some parts lack plausibility. However, I do accept that, overall, Mr L did not engage in any targeted campaign of homophobic conduct towards the Applicant. Further, I find there is no credible evidence that any other co-worker engaged in such conduct.
Mr Clark put to the Applicant during cross-examination that he had not reported

Mr L’s behaviour to management, and he agreed with that proposition.
As stated, the Applicant became very focused on Mr L, and even though he accepted that he was not the author of the car selling prank, nonetheless he retaliated by pranking Mr L. These are not the actions of a bullied person, rather they suggest that the Applicant disliked Mr L and deliberately targeted him.

One final matter of interest is the account the Applicant gave to Dr Varghese about the workplace environment prior to the incident. In his report of 9 May 2017, Dr Varghese provided the following information – Exhibit 4 p. 7:
“In his thought content it was focussed on issues in the workplace although he reports that he generally liked the workplace and the people in it apart from difficulties with one individual who did not like him. [The Applicant] wonders whether it was about his sexuality. He recalls gay jokes in the office.”
The Applicant’s account of the workplace is consistent with the evidence. He was generally happy working there, and he had personal difficulties with Mr L. He wondered if it was because of his sexuality. In other words, he did not know why

Mr L did not like him, and his assumption was that it related to his sexual orientation. The only instance of homophobia mentioned are gay jokes being told. Again, this does not suggest that the Applicant was being targeted, simply that staff were joking around. This is inappropriate, but not uncommon in most workplaces, and if they were simply jokes and not being used to maliciously target the Applicant (for which there is no evidence), then they do not support his case.
Accordingly, I find that the evidence before the Tribunal does not support the contention that the Applicant was the subject of bullying or inappropriate homophobic behaviour by Mr L or any of his other of his co-workers.
There is another issue which should be noted. Dr Varghese in his first report, made the following observations – Exhibit 4 p. 8:
“[The Applicant] reports a past history of depression with an episode in 2008 requiring antidepressants and he recovered fully. He reports another more brief episode in 2011 following the break up of his relationship and they subsequently reconciled. He also reports another milder episode towards the end of 2015 which he relates to the behaviour of a fellow worker. He recovered from this and was well at the time of an incident at work on 19 March 2016.”
In short, by the time of the incident, any mental health issues the Applicant may have had related to Mr L had resolved. Mr Clark specifically put this passage to the Applicant during cross-examination, and he accepted it as being correct.
The Incident
Central to the disposition of this matter is resolving the conflicting accounts of what transpired during the incident. The Applicant, in his Workers’ Compensation Form, stated that he was injured as a result of the incident, which he stated occurred in the back office and that the person responsible for the injury was Ms E – Exhibit 1 T5 pp. 31, 33, 34.
The differing accounts of what transpired on, have been set out in full above, and there is no profit in repeating that material. Rather, I will set out now the findings I make from a perusal of that material.
The Tribunal prefers the account of the incident provided by Ms E, and makes the following findings of fact:
(a)the Tribunal found Ms E to be a witness of credit. She provided a consistent account of the incident in various written reports and her oral evidence was consistent with those accounts. The Applicant attempted to impugn Ms E’s credit by seeking to play tapes of their telephone conversations. However, far from damaging Ms E’s credit, the recording played to the Tribunal supported her version of events and highlighted the professional and fair way in which she interacted with the Applicant;
(b)
the only person who witnessed the incident in the back room, and who provided both written and oral evidence, is Mr S. Again, his account of the incident is consistent with Ms E’s and at odds with that given by the Applicant. As

Mr S no longer works for Telstra, it could not be said that his evidence was influenced by his employment. The Tribunal observed Mr S give evidence and formed the view that he was a truthful and reliable witness;
(c)the Tribunal has before it written statements, and received oral evidence from two persons who viewed the missing video footage of the incident. Both Mr S and Mr T, having reviewed the video tape, gave accounts of what occurred in the front office of the Telstra store that are consistent with the version of events given by Ms E. The Tribunal observed Mr T to be an honest and believable witness. Insofar as there are differences of opinion as to what actually transpired in the front office on 19 March 2016, the Tribunal prefers that given by Ms E, corroborated as it was, by the destroyed video footage;
(d)
much has been made by the Applicant of the destruction of the video footage. The Applicant suggests that it was a deliberate cover up, and that if the Tribunal had viewed the footage, it would support his version of events. All that the Tribunal was presented with was an extremely short clip from the video, which is not clear and which appears to show the Applicant interacting with Ms E. No sensible conclusions can be drawn from viewing that clip. There is no evidence to support the Applicant’s claim that the video footage was deliberately destroyed. On the contrary, three out of four persons who viewed the footage gave evidence that it showed the Applicant engaging in persistent unprofessional behaviour towards

Ms E and in view of customers;
(e)
the Applicant produced print outs of various conversations he initiated with fellow co-workers in an endeavour to get them to support his version of events. This resulted in Mr S being summonsed to appear, who gave evidence that supported Ms E’s version of events. As previously set out, the Applicant contacted Mr BR and attempted to badger him into supporting his version of events. As quoted above, Mr BR took offense at the Applicant’s badgering. Finally, the Applicant produced text and email exchanges between himself and

Ms J. On 25 January 2017 this text exchange occurred – Exhibit 14:
“[APPLICANT]:           I’m so sorry. Xo
[MS J]:   For what??
[APPLICANT]:            The crap telstra is about to put ppl thru
[MS J]:   I know nothing? ???
[APPLICANT]:            I’m sorry but I need to ask for ur statement from 19 march.
Telstra will b requesting it too
What u saw and heard on the day out the back office”
Ms J did not reply and did not answer the Applicant’s telephone call of

28 January 2017. Further, the Applicant sent Ms J a lengthy email on

29 January 2017, requesting a witness statement, however again, she did not respond. Accordingly, there is little, if no evidence, that any co-worker supported the Applicant’s version of the incident;
(f)
the evidence also suggests that the Applicant arrived late on 19 March 2016, for the day-start meeting and engaged in disruptive conduct. The Applicant had a history of arriving late for meetings or cancelling them without warning.

Dr Theodoros made the same complaint about the Applicant a decade ago. This was also manifested during the hearing. The starting time for the second day of the hearing was 11am, rather than 10am, due to the late arrival of the Applicant. The reason(s) for this behaviour is perhaps explained in the reports of Dr Varghese, but the Tribunal will not speculate. The evidence also suggests that the Applicant engaged in conduct aimed at targeting Ms E when he was not granted a lunch break. This unprofessional conduct resulted in Ms E becoming upset, but there is no credible evidence that she “yelled” at the Applicant. Far from the Applicant being the victim of intimation from management, the evidence discloses that it was his insubordination and behaviour that provoked the incident. If the Applicant was upset following that incident, it may have been self-realisation that he had “overstepped the mark”.
No offer of work following the incident
There are a number of documents generated by the Applicant, where he raises the question of why he was not offered work after the incident.
The first document of significance is a note prepared by the Applicant containing his recollection of a telephone conversation with Ms E on 31 March 2016 – Exhibit

1 T14 p. 81:
“Spoke with [Ms E] over the phone, conversation ended with [Ms E] stating she’s going to do the rosters and seeing what shifts she can give me. No shifts ever came through and [Ms E] ignored my attempts to get in touch again.”
The Applicant provided screen shots of three texts he had sent to Ms E, the first on 1 April 2016 and the remainder on 5 April 2016. The text of 1 April 2016 reads – Exhibit

1 T14 p. 80:
“Hi [Ms E]. I’m glad we finally had a chat yesterday. Just a qik ques, will I be getting an April roster?”
It is clear from the above exchange, that if the question of rosters was discussed on

31 March 2016, no commitment was given by Ms E.
Another document of significance is the Applicant’s email to Mr K of 19 April 2016 – Exhibit 1 T34 p. 157:
“Good morning [Mr K]
I had my meeting with [Ms E] Friday evening. I was seriously considering not going simply because I found it stressful, but decided it was best to go, and I’m glad I did because I felt better for it.
Unfortunately I was left bewildered, it turns out I still do not have any shifts, now the reasons for this according to [Ms E] were a bit hazy. First off [Ms E] said due to the investigation by Telstra HR resulting from my email, that has affected me going back, but more so she pointed to the budget being the reason.
I find this difficult to believe, no other casual’s have been affected by my email, and no other casual has seen hours cut to nil, where mine have been cut completely, in fact I have not received a new shift since 19 March…
[Ms E] stated she had to get back to you regarding this matter, maybe you can provide me with a more accurate explanation as to what happened to my shifts since 19 March?
My expectations were to return to work without being affected and with the same hours.”
The Applicant further expanded on his concerns in a Statutory Declaration dated

14 February 2017 – Exhibit 3:
“1. In brief, I lost my job/shifts that day, 19 March 2016, for simply asking to take a break. If my shifts were reinstated, they would have been heavily affected, if I got any at all. The obvious reasons my shifts were not reinstated was because I would not agree with [Ms E]’s accusations of what happened that day, and because I would not withdraw my concerns raised to Telstra HR and [Mr K] in relation to both that day and [Mr L].
2. I did not ask for any special privilege or treatment, I simply asked for what was right and fair.
3. I wasn’t able to return to work. [Mr L] continued in his casual role at Telstra Capalaba, and still does to this day. [Ms E] was able to return to work, but not me, I had no job to go back to, except for the possibility of returning to the same place, Telstra Capalaba, where the issues were raised, and remained unsolved, with only the following reassurance; ‘…your availability is noted on the register for casual employees in line with our normal processes’ (Letter from [Mr K] dated 4 July 2016.).”
The evidence presented does not support the Applicant’s contention that he was unfairly treated by not being rostered work subsequent to the incident.
Immediately following the incident, the Applicant was rostered for work on Saturday

26 March 2016, but did not attend despite exchanging text messages with Ms E the previous day, which was Good Friday. After initially texting that he did not “feel comfortable coming in”, he subsequently messaged saying: “It’s fine if u want to talk and are at work tomorrow I’m ok with that. I don’t want to upset u” – Exhibit 1 T14 pp. 78-79.
Accordingly, the Applicant was offered work and did not take up that offer.
At and around the time of the incident, Telstra’s labour budget was significantly reduced. The following information is provided in the Statement of Mr K dated 19 October 2017 – Exhibit 6:
“3 In March 2016 the Capalaba store was within the network for which I was responsible. My role was General Manager Retail. I was also responsible for providing store management with details of their labour budgets on a weekly basis as this was a very important component of our business and needed to be managed with a high level of governance. The budgets were used to allocate labour and staffing at the store level throughout Queensland.
4. In the third quarter of 2016 the national labour budget had been reduced significantly and the impact to the Queensland budget was approximately 20%. This equates to approximately $200 K reduction for the period. This meant that each store had a significantly reduced labour budget and had to use the money wisely to ensure they maximised customer experience and achieved the company’s predetermined sales targets. Inevitably this would impact on our staff significantly, and would potentially effect the shifts for our large casual labour force across the state. This also impacted on our permanent staff, who had to support the business through a reduced labour force on a daily weekly basis.
5. At no time did I direct that [the Applicant] not be rostered on for casual shifts. I am not aware of any Telstra staff directing that [the Applicant] not be rostered for casual shifts.
6. I did become aware that [the Applicant] had been certified by his doctor as being unfit for work with what I believed was an ongoing health issue. Due to this he could not be rostered while he was covered by a medical certificate and deemed unfit for work. I was not involved in rostering which was done at a store level.”
Two important issues arise from the above statement.
First, that there was a reduction in the Telstra national labour budget, which negatively impacted on all retail outlets, including the Capalaba store. During his oral evidence,

Mr K said that in the third quarter of the 2015/2016 financial year, Telstra was unable to employ 95% of its Queensland casual staff. Mr K testified that irrespective of the incident, the Applicant, as a member of the casual staff, would have been impacted by that state of affairs.
Ms E’s statement provides further information about how the reduction in the national labour budget impacted on the Capalaba store. She said – Exhibit 7:
“21 In preparing the roster for April 2016 I was given very little labour. Whilst there were 8 casuals who worked in the store, that month I published a roster with work only for the permanent staff as I could not afford to roster any casual staff.
22 During the week after 26 March 2016, I spoke to [the Applicant] to discuss the rosters for April 2016…I also advised him that due to there being no labour he had no shifts for April. I have seen [the Applicant’s] allegation…that I told him during a conversation on 31 March 2016 that I would ‘see what shifts [I] can give’ him. I deny saying this. I was clear in telling [the Applicant] that due to the limited labour I was given I had no guaranteed shifts for him in April.”
Ms E re-iterated this during her testimony. Under oath she stated that no casual employee was rostered work during April 2016, and that advice to that effect was given to the affected staff.
It is not necessary for me to determine if Ms E said to the Applicant on 31 March 2016, that she would see what shifts she could give him, because, as it transpired, she was not in a position to give any casual staff member rostered work in April 2016.
There is no credible basis for the Tribunal not accepting the information provided by

Mr K and Ms E about the reduction in the budget for casual labour hire in April 2016. The Tribunal finds that the incident had no impact on the Applicant’s failure to obtain rostered work in April 2016, as all casual staff of the Capalaba store were negatively impacted by the reduction in the Queensland labour budget in the third quarter of the 2015/2016 financial year.
The second issue that arises from Mr K’s statement relates to the medical certificates the Applicant provided to Telstra, in conjunction with his workers’ compensation claim.
As previously noted, Dr Zia certified that the Applicant had no capacity for any type of work commencing from 19 March 2016 (Exhibit 1 T4 p. 26) and up to 30 September 2016 (Exhibit1 T29 p.131).
Those certificates were provided to Telstra, who was put on notice that the Applicant was medically unfit for work.
It is axiomatic that an employer, having been provided with medical certificates by an employee that he or she is unfit for work, would act upon the advice provided, particularly if a workers’ compensation claim was extant.
As Mr K correctly points out, Telstra was not in a position to roster the Applicant for work if his own GP certified he was medically unfit.
The fact that the Applicant was simultaneously obtaining medical certificates stating that he was unfit for work, and then complaining he was not rostered for work, raises other issues that need not be addressed. However, the evidence before the Tribunal refutes conclusively any suggestion that the Applicant was not rostered for work after the incident, as a result of the incident.
Employee’s perception of events
Consideration must also be given to Wiegand v Comcare [2002] FCA 1464; 72 ALD 795 (Wiegand), where von Doussa J made the following observations:
“[23] In terms of the definition of disease, the question which the [Administrative Appeals Tribunal (the tribunal)]was required to consider was whether Mr Wiegand’s ailment or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment”. In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:
“Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.’”
Federal Broom Co Pty Ltd v Semlitch concerned the definition of “injury” in s6(1) of the Workers’ Compensation Act 1926-1960 (NSW). That definition extended “injury” to include ‘the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration;…”. In the definition of “disease” in s 4 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth) the SRC Act], the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J. It will also be noted that the definition of “disease” in the SRC Act requires the employee’s employment contributed to a “material degree”, but the introduction of the notion that the contribution must be “material” was held not to be a ground for differently construing the requirements for the definition of “disease” in Treloar v Australian Telecommunications Commission…
[24] It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
[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.”

Wiegand was carefully considered and followed by Collier J in the recent decision of Telstra Corporation v Hunter [2016] FCA 318.
The Courts, nonetheless, have drawn a distinction between an injury arising from an employee’s honest view about his or her employment situation, and a pre-existing condition where the workplace had only a temporal connection to the aggravation of the pre-existing injury. One example of this is Dean v Australian Postal Corporation [2010] FCA 680; 52 AAR 54. Mr Dean genuinely believed that he was being bullied at work and he traced the existence of his mood disorders to the bullying he perceived he suffered. However, the Tribunal found that the mood disorders actually arose from a pre-existing mental ailment.
Perram J made these observations ([9]/56-57):
“The problem arises where, for example, an employee develops a persecution complex as a result of an argument in the workplace. As the complex takes hold the employee becomes convinced – inaccurately – that co-workers are plotting his or her downfall and some nervous disorder from the mental anguish this perception generates then ensues. The view has generally been taken that such a condition can be an ailment which has been “contributed to in a material degree by the employee’s employment”. Because the scheme of compensation is in essence a no-fault one it has been necessary to discount any assessment of whether the employee’s perceptions are rational or reasonable. On the other hand, it has also been necessary to place some outer limits on the extent to which mental unwellness may generate a compensation claim. The particular problem the authorities exhibit a desire to avoid is the case of a person whose nervous condition predates the incident in question but whose symptomology fixes on to the workplace incident and inaccurately attributes the aggravation of the pre-existing condition to that incident. This is a difficult concept to convey. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41 Davies, Beaumont and Burchett JJ (at 41) upheld the approach of the Tribunal in treating the appellant’s neurotic belief that his leg pain was attributed to a work incident as “an inert focus for a neurosis determined by other factors”.
In this matter the evidence discloses the following factual matrix:
(a)the Applicant has been suffering from mental ailments for most of his adult life;
(b)the Applicant’s mental ailments ‘ebb and flow’ but have never resolved;
(c)the Applicant came to dislike a co-worker, Mr L and formed the opinion that Mr L was victimising him because of his sexual orientation;
(d)Dr Varghese opined that the Applicant may have suffered another episode in his mental ailment as a result of that belief;
(e)there is, however, no evidence that the Applicant suffered any workplace bullying from Mr L;
(f)not only is the Applicant’s belief that he was being bullied unreasonable, it is also factually inaccurate. Rather, the evidence suggests that the Applicant’s underlying neurosis ‘latched on’ to his negative feelings towards Mr L, manifesting itself in a ‘flare up’ of his underlying mental condition;
(g)in any event, the ‘flare up’ of this condition, had, according to Dr Varghese, resolved itself by the date of the claimed injury, namely 19 March 2016;
(h)the Applicant’s account of the incident is entirely inconsistent with the evidence of the only independent witness, Mr S. Further, the two independent persons who viewed the accidentally deleted videotape of the incident, also testified that it upheld the version of events provided by Ms E;
(i)the Tribunal has found that the account of the incident provided by the Applicant is at odds with the reality of what occurred;
(j)in this matter the Applicant was not exposed to some incident or state of affairs which resulted in the ‘flare up’ of his condition, rather, the evidence suggests that he was the protagonist and not the recipient of harsh treatment by Ms E;
(k)I read the authorities as mandating a minimum threshold requirement, namely, that the event or series of events that results in a claimant forming a belief, no matter how unreasonable, has in fact occurred in at least some form resembling the recollections of the claimant;
(l)I do not read the authorities as allowing a claim to proceed where a claimant’s pre-existing neurosis is, as is in this case, the cause of an incident, and where a claimant’s perceived version of events bears no relationship to what actually occurred. There must be a ‘factual floor’ which supports a person’s perception of events, unreasonable though that perception may be. Here the Applicant’s version of the incident is totally inconsistent with the facts found by the Tribunal. Accordingly, there is no such factual floor that would support the Applicant’s perceptions of what occurred;
(m)the Applicant’s complaints of loss of work with consequent mental injury arising from what was claimed to be malicious targeting due to the incident, has no factual basis;
(n)the Applicant was offered a roster after the incident, but during April (at least), no casual staff were rostered due to budget issues;
(o)further, the Applicant was certified medically unfit for work, and Telstra had been informed of this; and
(p)as a consequence, there is no factual basis supporting this complaint.
In conclusion then, I have formed the view that the Applicant’s complaints with respect to Mr L and Ms E are unfounded. The Applicant’s mental health condition predated his employment at the Telstra Capalaba store, but his ailment led him to fixate on perceived workplace incidents and inaccurately attribute the aggravation of his ailment to his misconceptions of what actually occurred. In these circumstances, for the reasons outlined above, this is not a matter that is susceptible to the application of the beneficial principles expounded in Wiegand.
Conclusion
Having evaluated the evidence presented, I am not satisfied that the version of events provided by the Applicant is accurate. Rather, I have found that the version of events given by Ms E of both the incident and subsequent events is to be preferred. In reaching this conclusion, I have had regard to the evidence given by Mr K, Mr S and Mr T. In each case, their statements and testimony fortified the version of events provided by Ms E and undercut the version propounded by the Applicant. In these circumstances, I am not satisfied that the aggravation of the Applicant’s mental ailment was contributed to, to a significant degree, by the Applicant’s employment with Telstra.
Reasonable Administrative Action
Having found that the aggravation of the Applicant’s ailment was not contributed to, to a significant degree, by his employment with Telstra, it is not necessary to consider whether Telstra could rely upon the reasonable administrative action proviso in s 5A(1).
However, I see no error in the reasons advanced in the reviewable decision or the Determination in this regard.
If I had made contrary factual findings, then Ms E’s counselling of the Applicant on 19 March 2016 could properly be described as an administrative, rather than an operational action as it falls within the meaning set out in s 5A(2)(b). Alternatively, if it was characterised as an informal disciplinary action, it falls within s 5A(2)(d). In short, it should not be characterised as an operational action and thus falls within the scope of the proviso.
The facts set out above, clearly demonstrate that Ms E engaged in a reasonable administration action (i.e. counselling or disciplinary action) in a reasonable way.
Reference can be made to Quick and Comcare [2010] AATA 209, which set out what constitutes reasonable administrative action in a reasonable way. In this matter, I find:
(a)it was reasonable for Ms E to refuse to give the Applicant a lunch break until the relevant staff on lunch returned to their duties;
(b)it was reasonable for Ms E to require the Applicant to come from the shop floor to a back room where, in private, she could counsel the Applicant on his insubordination; and
(c)having accepted Ms E’s account of the events that transpired in the back room, I find that she acted in a reasonable manner when she counselled the Applicant. In fact, the evidence suggests that she was extremely professional and tolerant of the Applicant and went out of her way to deal with a very difficult situation in a non-confrontational manner.
Accordingly, if it is necessary to deal with the issue of reasonable administrative action, I find that the interactions of Ms E with the Applicant on 19 March 2016, constituted reasonable administrative action in a reasonable way.
CONCLUSION
It is regrettable that this matter has come this far and that the Tribunal is required to set out in its reasons information that will be no doubt, distressing to the Applicant. Over the past seventeen years the Applicant has struggled, mostly successfully, with his mental ailments.
During almost all of this period he has been engaged in gainful employment. He presented at the hearing as an extremely personable individual, who had a genuine belief in the correctness of his case. This was not a matter where the Tribunal was confronted with a person who presented in a less than credible way. On the contrary, it was very clear that the Applicant had a cause he wanted to prosecute, and he believed very much in that cause.
I have read the extensive customer feedback reports the Applicant provided. They illustrate that he was a polite, helpful and attentive staff member who, overall, was a good employee of Telstra. It is therefore quite sad that the Tribunal has had to focus on a series of incidences that reflect negatively on the Applicant, and which are not illustrative of the effort he has placed over the years to gaining and maintaining a good reputation as an employee.
I suggested to the Applicant that he request a Direction that removed his personal details from this decision. I acceded to his subsequent request. It would have been a tragedy for the Applicant, if his future employment prospects were harmed by the publication of this decision, and accordingly, I have made every effort to ensure that this was avoided.
It is to be hoped that the Applicant can move away from his negative views of Telstra and get on with his life. He has much to offer the community, and it is to be hoped that these proceedings can be viewed within the broader prism of a man who, despite his medical condition, has been a positive and gainful member of the community who has many professional opportunities to explore in the future.
DECISION
The decision under review is affirmed.

I certify that the preceding 187 (one hundred and eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..............................[SGD]..........................................
Associate
Dated: 9 July 2018

Date(s) of hearing: 1 and 2 March 2018

Date final submissions received: 29 March 2018

Applicant: In person

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 2152

9 July 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Statutory Construction

Causation

Procedural Fairness

Remedies

Appeal

Date(s) of hearing:	1 and 2 March 2018
Date final submissions received:	29 March 2018
Applicant:	In person
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Sparke Helmore