Favas and Comcare (Compensation)
[2017] AATA 1317
•17 August 2017
Favas and Comcare (Compensation) [2017] AATA 1317 (17 August 2017)
Division:GENERAL DIVISION
File Number: 2015/2619
Re:George Favas
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms Regina Perton, Member
Date:17 August 2017
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Regina Perton, Member
COMPENSATION – employment by Department of Defence – major depressive disorder – alleged bullying by supervisor - whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 14(1)
CASES
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86Lim v Comcare [2017] FCAFC 64
REASONS FOR DECISION
Regina Perton, Member
17 August 2017
Dr George Favas commenced employment with the Joint Fuels and Lubricants Agency (JFLA), Maritime Systems Division, Defence Materiel Organisation, Department of Defence (DoD), in 2012 as Chief Engineer. He lodged a claim for compensation on 18 August 2014 for a psychological condition which he described as anxiety and depression due to (a) unreasonable work demands in a hostile work environment and (b) a meeting with his supervisor on 21 March 2014 (the 21 March 2014 meeting), when he held the position of Director, HAZCHEM (dealing with hazard remediation relating to fuels and lubricants).
On 18 November 2014 Dr Favas’ claim was refused by Comcare. Comcare found that his condition of adjustment reaction with disturbance of emotions was significantly contributed to by his employment but had arisen from reasonable administrative action taken in a reasonable manner by the JFLA. Dr Favas sought internal review of the decision. On 7 April 2015 the Comcare reconsideration delegate affirmed the decision. On 28 May 2015 Dr Favas sought review of that decision by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) states:
Compensation for injuries
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the SRC Act states:
Definition of injury
(1) In this Act:
injury means:
(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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act states:
Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material
Ailment is defined in s 4 of the SRC Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
Comcare conceded, and the Tribunal accepts, that Dr Favas suffers from a psychological condition. Dr Anthony Sheehan, consultant psychiatrist, diagnosed major depressive disorder single episode. Dr Colin McIvor, consultant psychiatrist, diagnosed major depressive disorder with prominent anxiety. On the basis of that medical evidence, the Tribunal finds that Dr Favas suffers from major depressive disorder (the medical condition) that is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by Dr Favas’ employment with the JFLA. The medical condition constitutes a disease for the purposes of s 5A and s 5B of the SRC Act.
The issues before the Tribunal are:
·When did Dr Favas suffer the disease?
·Did Dr Favas suffer an injury? This requires consideration of whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. Although there were a number of events that affected the medical condition, the parties agreed at the hearing, and the Tribunal accepts, that the only administrative action to which the exclusion provisions of s 5A of the SRC Act may apply is the 21 March 2014 meeting.
When did Dr Favas suffer the disease?
In his application for compensation, Dr Favas stated that on 21 March 2014 he suffered the condition at work, and on the same day, he first attended his general practitioner in connection with the condition.
Dr Favas told the Tribunal that he grew up in Melbourne and after completing secondary education, he obtained a Bachelor of Science degree with honours at Monash University, followed by a Doctor of Philosophy (PhD) degree in Chemistry, concentrating on fuels and power generation. He undertook postdoctoral studies for four years and was awarded a second PhD in engineering at Swinburne University in 2008, again focusing on fuels. He worked as a research fellow supervising PhD students before joining the DoD in 2003.
He commenced with the Defence Science and Technology Organisation (DSTO) in Maribyrnong, conducting research into personal protection equipment and defences against chemical warfare agents. In 2007 he was appointed as a Science Advisor to the Australian Army in Sydney. From 2008 to 2012 he worked at the Defence Materiel Organisation in Melbourne, carrying out research into systems engineering management in the Chemical, Biological, Radiological, Nuclear and Explosives Section. In August 2012 he was appointed to the position of Chief Engineer at the JFLA (EL2 level), involving quality assurance and compliance with technical regulations, including safety. The Director of the JFLA was Colonel Mark Harnwell.
Dr Favas stated that Colonel Harnwell was based in Sydney and they met about once each fortnight to discuss relevant issues, including fuel quality and personnel safety. Dr Favas said his own position was a civilian one, and involved some after-hours work, such as taking telephone calls after hours from personnel on ships at sea seeking advice on fuel matters. He said that in his position as Chief Engineer he attended weekly Executive Team meetings to review the work of the organisation. In February 2013 he was seconded to a new position of Director, HAZCHEM, but remained a member of the Executive Team. He said that he chose to accept the position because it would have more resources and would be more technically challenging than the Chief Engineer position. Part of his duties included drawing up a HAZCHEM plan to meet the requirements of safety legislation, noting that compliance had been identified as having been a problem within the DoD, particularly in relation to fuel handling.
In relation to his performance, Dr Favas told the Tribunal that on 19 September 2013 he was given a rating of fully effective by Colonel Harnwell and was approved for progression on the basis of meeting the relevant criteria. However, his subsequent recommendations about the appointment of contractors to carry out the HAZCHEM project were not accepted. Dr Favas raised his concerns about the quality of the work and possible safety implications with the Executive Team at a meeting on 9 October 2013. He said that afterwards, he was no longer invited to Executive Team meetings, even though the risk assessment of fuels and lubricants was his particular responsibility. He said he was never given a reason by Colonel Harnwell for his exclusion. Dr Favas stated that he feared that the JFLA’s safety performance was not being monitored properly.
Dr Favas emphasised that by November 2013 he was becoming more anxious and his blood pressure was increasing, despite being on medication for hypertension since April 2013. At work, he began to experience anxiety and palpitations and was worrying about work issues when at home. He worried particularly as he felt that he was in the best position to make judgments about safety and compliance issues in view of his expertise. Dr Favas was concerned that the Business Executive side of management was not sufficiently familiar with the technical aspects of the subject, and the possible consequences of an accident, including possible serious injury or death to DoD personnel. He said that he felt helpless and frustrated, and had been pushed into a position where he was unable to influence or direct the organisation’s response to hazard-related problems.
In late November 2013 Dr Favas suffered a Transient Ischaemic Attack (TIA), a type of mini-stroke, and temporarily lost the sight in his right eye. He said that after discussions with Colonel Harnwell he commenced working from home two days each week in an effort to relieve some of the stress. He explained that his workload was significant and he was working long hours and not sleeping well. On 29 November 2013 he thanked Colonel Harnwell for facilitating the working-from-home arrangements. On 19 December 2013 Colonel Harnwell sent an email to Dr Favas in which he stated:
George, all the best to you […] and the boys over the holiday season. I hope that working from home and other adjustments will allow you to enjoy all of life, without work becoming too much…
In reply, Dr Favas sent an email to Colonel Harnwell on the same day in the following terms:
Hello Mark,
Thank you for your support throughout the year.
You are always welcome to come to my home for a scotch appreciation session along with a high calorie meal.
Wishing you and your family all the best for Christmas and the New Year.
Kind Regards
George
On 17 January 2014 Colonel Harnwell sent an email to Dr Favas recommending him for a temporary position in the DSTO. On 20 January 2014 Dr Favas replied:
Thank you Mark,
Happy New Year. All relaxed and ready for another big year.
In regards to the DSTO position, my only concern is that it’s temporary.
I’ll look further to our discussions on Friday.
Kind Regards
George
Notwithstanding this reply, Dr Favas said in his written statement that the email which recommended him for a temporary position in the DSTO and suggested that he should consider taking the position:
…came out of the blue. I felt that he clearly wanted me to resign from the Chief Engineer JFLA position, my substantive position, and the HAZCHEM Director role. He had no basis for telling me to move elsewhere. I did not interpret it as a supportive email but as a broad hint. I replied in terms of explaining my expertise in fuels.
Dr Favas said that he was concerned that the HAZCHEM section be properly resourced to meet its statutory safety obligations, and was dismayed when the JFLA’s Change Manager sent him an email stating that the HAZCHEM activity was not value adding to the JFLA Business Activity and should be outsourced, presumably to a private contractor, who Dr Favas believed would be able to offer only superficial compliance with safety legislation. He said that on 18 February 2014 he sent an email to Colonel Harnwell expressing his concern on this issue.
Dr Favas stated that he was finding that his exclusion from Executive Team meetings, the marginalisation, the attempts by Colonel Harnwell to force him to leave his position, and the Change Manager’s wish to outsource the safety function were deeply depressing. He said that he was increasingly feeling worthless, undervalued, insignificant and unwanted, and felt that his scientific expertise in fuels should be central to an organisation such as the JFLA and particularly the HAZCHEM Directorate. He was concerned that the Executive Team under Colonel Harnwell was prepared to dispense with his expertise and to downgrade safety, with any expressed commitment to safety never really central to the leadership. Dr Favas stated that on 17 March 2014, Colonel Harnwell sent him an email telling him to apply for any temporary position as an EL1 Systems Engineer in the Land Engineering Agency and informing him that Colonel Harnwell wanted the substantive position of Chief Engineer to become a military position. Dr Favas said that he had no interest in any temporary position and described Colonel Harnwell’s actions as bullying, making him even more anxious and upset.
After receiving the email, Dr Favas consulted his general practitioner on 19 March 2014 because of increasing symptoms of anxiety. He said that he was diagnosed with anxiety and depression and was advised to seek counselling. On 20 March 2014 he provided Colonel Harnwell with feedback concerning the completion of his Key Expected Results ahead of schedule and in spite of his lack of staff. He said that on 21 March 2014 he had a face-to-face meeting with Colonel Harnwell, but before the meeting, his union had assured him that the Secretary of Defence could not re-classify any civilian position as a military position unless the position was substantively vacant.
Dr Favas said that at the meeting there was no performance review, no discussion about his work or targets etc., but Colonel Harnwell had merely asked whether he had applied for the temporary position, to which he had replied that he had not because it was a demotion. Dr Favas said that he then left work and went to his general practitioner, and remained off work for one month. He confirmed that he is no longer employed by the DoD, having been declared in excess of requirements.
The Tribunal accepts that Dr Favas consulted his general practitioner on 21 March 2014 after the 21 March 2014 meeting. The Tribunal finds that the disease was suffered on 21 March 2014.
Did Dr Favas suffer an injury?
Was the condition suffered as a result of the administrative action?
In Comcare v Martin (2016) 153 ALD 167 the High Court of Australia stated at [47]:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
In Lim v Comcare [2017] FCAFC 64 the Full Federal Court referred to Comcare v Martin and identified a deficiency in the Tribunal’s decision-making process. The Court stated:
[40] When regard is had to Comcare v Martin, a deficiency in the Tribunal’s decision-making in Dr Lim’s case becomes apparent. What the Tribunal failed to do was address the entirety of the question to which the application of the exclusion in s 5A(1), when read with s 5B, gave rise.
[41] As noted earlier, in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment as defined in s 5B(1)(a)) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA. Put another way, as in Ms Martin’s case, only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.
Applying Martin and Lim the Tribunal takes into account Dr Favas’ evidence that he consulted his general practitioner on 21 March 2014 after suffering what he believed to be symptoms of anxiety and depression, and was given one month off work. This is supported by the medical evidence. The Tribunal finds that Dr Favas would not have suffered the medical condition if the 21 March 2014 meeting had not taken place.
Did the 21 March 2014 meeting constitute reasonable administrative action?
In Drenth v Comcare [2012] FCAFC 86 the Full Federal Court stated at [26]:
Whether something is reasonable or not is ordinarily a question of fact. A decision-maker does not make an error of law simply in making a wrong finding of fact…
Dr Favas stated that the meeting did not constitute reasonable administrative action. He said that no performance appraisal or counselling took place at the meeting. Colonel Harnwell said at the hearing that the meeting was part of a routine visit to Melbourne which he conducted every two or three weeks to discuss relevant issues with Dr Favas, and was intended to be an informal meeting and general discussion. On 17 March 2014 he sent an email to Dr Favas in which he stated:
…Noting my planned Melb this Fri, can you provide me your most recent PFADS [Performance Feedback and Development Scheme] for mid term discussions?
...
Also, note this opportunity. As we have discussed a few times, it is likely that following hazchem, we will need to work to consolidate every position at JFLA and I am focused on transferring the CENGR [Chief Engineer] position to a military designated position. As alternate employment opportunities arise, I hope you can consider options for the longer term. This might be one of them, noting I would be comfortable to supplement the difference between EL1 and EL2 pay rates for this position. Applications close Monday so please consider and advise me later this week, thanks…
Colonel Harnwell said that in response to his email, Dr Favas sent his performance agreement on 18 March 2014. Colonel Harnwell stated that he proposed to discuss the planning for the significant change to the JFLA that was under consideration, including an end to the HAZCHEM role at the end of 2014; and for that reason, he provided Dr Favas with information about other positions that might be of interest to him. On 20 March 2014 there was an email exchange about the time of the meeting, and Colonel Harnwell accommodated Dr Favas’ wishes by arranging the meeting to suit Dr Favas, and offering the option of meeting over coffee or lunch.
Consideration
The Tribunal accepts Colonel Harnwell’s evidence that he conducted regular meetings in Melbourne with senior staff to discuss relevant issues, and that on 17 March 2014 he arranged the 21 March 2014 meeting with Dr Favas to discuss Dr Favas’ performance agreement. In his email of 17 March 2014 Colonel Harnwell also referred to the possibility of Dr Favas considering alternate employment options in the event of a transfer of the Chief Engineer position to a military-designated position. In reply, Dr Favas agreed to the meeting and on 18 March 2014 sent his performance agreement to Colonel Harnwell.
In the circumstances, the Tribunal finds that the meeting was arranged for the purpose outlined by Colonel Harnwell and that the proposed discussion of Dr Favas’ performance agreement was appropriate. As a regular informal discussion and meeting there was nothing unusual about its arrangements or location in Dr Favas’ office, and adequate notice had been given. For these reasons the Tribunal finds that the 21 March 2014 meeting constitutes reasonable administrative action as defined in s 5A(2)(b) and (e) of the SRC Act.
Was the reasonable administrative action taken in a reasonable manner?
In Comcare v Martinez (No 2) (2013) 212 FCR 272 the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A of the SRC Act. Robertson J said:
[72] It will be recalled that the Tribunal said that the [Comcare guideline on bullying] said that “whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this ‘should reasonably have been expected’, it amounts to bullying” and to bully someone is not to conduct administrative action in a reasonable manner.
[73] However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1) …
…
[82]…I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
[83] I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42; at 47-48 where his Honour said, in a context much closer to the present legislation:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
Dr Favas stated that the 21 March 2014 meeting was conducted in an unreasonable manner. He told the Tribunal that when he informed Colonel Harnwell that he had not been looking for other jobs, Colonel Harnwell:
…then went off at me, raising his voice, expressing resentment at my failure to take up his suggestion to work elsewhere in the DMO. His physical posture along with his expressed resentment clearly demonstrated a hostile attitude to me. There was no rational discussion with him. He told me that I would not be returning to my substantive position as Chief Engineer, JFLA. He then threatened to put me on a performance improvement plan if I didn’t vacate my position. There had been no discussion of my performance. He was threatening me with the performance improvement plan to further intimidate me into giving up my substantive position. He had no basis for demanding that I give up my job, he was merely bullying me.
According to Dr Favas, the meeting commenced at approximately 12.30 pm and lasted about 15 or 20 minutes. He said that Colonel Harnwell told him that if he did not vacate his position it could be achieved the aggressive way by means of allegations of poor performance and work of an insufficient quality. Dr Favas told the Tribunal that he had never been advised of any complaints about the quality of his work. Dr Favas said that Colonel Harnwell told him he wanted Squadron Leader Ulas Yildirim to have the job of Chief Engineer as a military position. He said that Colonel Harnwell told him: Don’t you get it? No one in Defence wants you. You can leave the easy way or the aggressive way.
Dr Favas said that he repeatedly asked Colonel Harnwell to leave his office as his heart was pounding hard, but Colonel Harnwell continued his threats and repeated the easy way or the aggressive way. He stated that Colonel Harnwell threatened that it was his mission to remove him from his position before retiring from the Army. Dr Favas said that Colonel Harnwell told him words to the effect that: It’s your word against mine. I’m a uniformed person and they’re going to believe me over you. I’m going to deny everything. He said that he was afraid of Colonel Harnwell’s aggressive demeanour, was very anxious, felt palpitations and chest pain. He said he had some difficulty breathing, and was shaking and trembling. Dr Favas explained that he tried unsuccessfully to calm down, but was deeply upset about the threatening and bullying behaviour.
In his oral evidence, Dr Favas said that in the email requesting the meeting Colonel Harnwell had stated: How about we have a chat over a coffee, or lunch? He said that in fact the meeting was not a chat because Colonel Harnwell walked in and closed the door behind him, and then proceeded to become aggressive and commence his threatening behaviour. He said that he left work at 2.10 pm for medical attention and was prescribed Valium for anxiety.
Under cross-examination, Dr Favas agreed that on 15 September 2014, about one month after lodging his claim for compensation, he sent the respondent a document he had written entitled Repetitive workplace behaviour causing harm in which he provided information in support of his claim. At page 4 of the document he stated:
On 21 March 2014 the Colonel and I undertook a performance exchange. Despite completing the Key Expected Results ahead of schedule, the Colonel responded with antagonism and resentment. It felt like the Colonel had deliberately set unreasonable workloads; had deliberately withheld information that was vital for effective work performance…with the expectation of failure to meet my deliverables so to give him a reason to remove me from this organisation. The Colonel advised that I would not be returning back to JFLA Chief Engineering role...
Dr Favas told the Tribunal that this was an error on his behalf, because there was no performance exchange at the meeting as a result of the failure of Colonel Harnwell to complete the relevant section of the performance appraisal document. He disagreed that shortly after the meeting commenced he had asked Colonel Harnwell whether he would be reinstated to the role of Chief Engineer and when the reply was in the negative he became upset and asked Colonel Harnwell to leave. Dr Favas maintained that Colonel Harnwell did not have the authority to deny him a return to his substantive position of Chief Engineer.
Colonel Harnwell made a written statement dated 24 January 2017 in which he said that he was employed by the DoD from 18 January 1978 until his retirement in January 2015. He said that he was appointed as Director of the JFLA on 18 January 2011 after various roles within the DoD. He said that he first met Dr Favas in July 2012 during interviews for the position as Chief Engineer of the JFLA, to which Dr Favas was appointed on merit. He explained that the position’s responsibility was to act as the senior engineer for petroleum, oils and lubricants quality control, and the occupant was required to be available at all times to provide advice in matters affecting fuel used by DoD personnel. He noted that the occupant had delegations to make decisions in relation to fuel quality control for aircraft and maritime vessels.
Colonel Harnwell told the Tribunal that after his appointment as Chief Engineer, Dr Favas required further delegations, but there had been concerns that he did not have the requisite skills to make risk-based decisions. Consequently, Dr Favas was employed as Chief Engineer only from August 2012 until January 2013. In this limited period Dr Favas did not demonstrate the skills to justify the additional delegations, based on Colonel Harnwell’s observations, and on technical advice from other senior personnel. Colonel Harnwell explained that in January 2013 Dr Favas moved to the newly-created position of Director, HAZCHEM, after an independent Quick Assessment (QA) recommended that Dr Favas was not suited to the position of Chief Engineer. The QA noted that there had been significant differences of opinion with Squadron Leader Yildirim (who had previously acted in the position of Chief Engineer) and that Dr Favas did not have the management and leadership skills for the role, so the additional delegations were not granted (a document tendered by Dr Favas towards the end of the hearing indicated that a number of delegations had been granted of which Colonel Harnsworth had not been made aware). Colonel Harnwell stated that it became evident to him that Dr Favas was unable to perform his duties adequately, in that he had a tendency not to accept advice from peers and had displayed a limited ability to delegate, make risk-based decisions, and to manage his time.
He explained that he attended Dr Favas’ office on 21 March 2014 and that:
… soon after we commenced talking, Dr Favas asked whether I would be appointing him back to the role of CENGR. I responded that he had not demonstrated the necessary development or attributes required for the role and I would not be recommending his re-appointment. I indicated that I would support his continued tenure as Director, HAZCHEM or to another position at level in Melbourne. Dr Favas became very upset and asked me to leave his office, which I did.
Colonel Harnwell said that Dr Favas emailed him at 2.06 pm on the same day, stating:
Mark,
I’m not feeling well. I’m off to see a doctor.
Kind regards
Colonel Harnwell said he replied within minutes, urging Dr Favas to manage his health and work/life balance and offering time off or formal leave. He indicated that he received a medical certificate dated 22 March 2014 that Dr Favas was unfit for work, and on 1 April 2014 he informed Dr Favas by email that he had approved four weeks of personal leave and annual leave. In his email he wished Dr Favas a speedy recovery back to good health.
Under cross-examination, Colonel Harnwell agreed that in March 2014 there was no formal plan for a re-structure of the JFLA or to change any position within the agency, and that ultimately no formal change was made that involved transferring civilian positions to military positions. He also agreed that at the 21 March 2014 meeting there was no opportunity to discuss performance issues because Dr Favas asked him to leave. He denied badgering or threatening Dr Favas during the meeting, as this was not his management or leadership style, and said that he preferred to operate in a consultative manner. He said that Dr Favas was performing to an acceptable standard in the role of Director, HAZCHEM, and that this had had no bearing on the Chief Engineer position which Dr Favas had not occupied for about 14 months.
Consideration
The evidence shows that Colonel Harnwell had documented, over a considerable period, his concerns about the performance of Dr Favas in the role of Chief Engineer. He created the position of Director HAZCHEM especially for Dr Favas in January 2013, and in consultation with Dr Favas. This was because Colonel Harnwell did not believe that Dr Favas possessed the requisite leadership or management skills to continue to perform the duties of Chief Engineer to the required standard. He was also concerned at the level of stress and anxiety exhibited by Dr Favas in the several months that Dr Favas had occupied the Chief Engineer position. Colonel Harnwell agreed that Dr Favas could work from home as a means of improving the work environment. Colonel Harnwell made his views known to Dr Favas and there is nothing in any of the documents to suggest that he acted in a malicious or negative manner in his dealings with Dr Favas leading up to the 21 March 2014 meeting.
On the contrary, it appears that Colonel Harnwell went to considerable lengths to support Dr Favas by offering to maintain him in the position of Director HAZCHEM and suggesting other roles that Dr Favas might be suited to, even offering to make up the difference in salary if Dr Favas accepted an EL1 position rather than his substantive classification of EL2. He had encouraged Dr Favas to develop a positive work/life balance and the two exchanged warm Christmas and New Year greetings. Colonel Harnwell made known to Dr Favas his personal preference for the position of Chief Engineer to be a military-designated position, and had informed Dr Favas of the purpose of the meeting as a discussion of performance and other matters, rather than as a formal counselling session.
For these reasons, the Tribunal does not have any persuasive evidence that in conducting the 21 March 2014 meeting, Colonel Harnwell was persecuting Dr Favas or was seeking to force him to resign. In view of their past interaction and correspondence, there was no evidence of rancour between them, and no plausible reason to suggest that that Colonel Harnwell might be hostile towards Dr Favas, threaten or intimidate him, or make a point of getting rid of him before Colonel Harnwell’s retirement from the Army. The Tribunal prefers the version of events as described by Colonel Harnwell: that Dr Favas asked about returning to his substantive position of Chief Engineer, and when Colonel Harnwell indicated that he would not be recommending this course of action, Dr Favas became upset and asked Colonel Harnwell to leave, which he did.
This version of events is supported by Dr Favas’ email to Colonel Harnwell at 2.06pm on 21 March 2014 in which Dr Favas stated: I’m not well. I’m off to see a doctor. Kind regards…which does not give an impression that Dr Favas felt that he had been the victim of hostile, aggressive or threatening behaviour from Colonel Harnwell less than two hours beforehand. The Tribunal takes into account that Colonel Harnwell replied shortly after receiving the email, showing concern for Dr Favas’ health and welfare and offering time off.
The Tribunal finds that Colonel Harnwell acted appropriately in leaving the meeting when asked to do so when Dr Favas became upset, and there was no opportunity to discuss performance issues. In all the circumstances, the Tribunal finds that the reasonable administrative action was taken in a reasonable manner.
CONCLUSION
For these reasons the Tribunal concludes that the reasonable administrative action in the form of the 21 March 2014 meeting was taken in a reasonable manner in respect of Dr Favas’ employment. Consequently the exclusion in s 5A(1) of the SRC Act applies, and Dr Favas’ medical condition does not come within the definition of injury in the SRC Act, and he is not entitled to compensation.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ...................................................................
Associate
Dated: 17 August 2017
Dates of hearing: 3, 4 and 5 April 2017 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Nowicki Carbone Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Sparke Helmore
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