Green and Comcare (Compensation)

Green and Comcare (Compensation) [2018] AATA 1266 (11 May 2018)
Division:GENERAL DIVISION
File Number: 2016/3483
Re:Andrew Green
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I. Alexander, Member
Date:11 May 2018
Place:Sydney

Mr Green’s “disease” was suffered as a result of “reasonable administrative action taken in a reasonable manner” and therefore was not an “injury” for the purposes of s 5A(1) of the SRC Act. This means that Comcare was not liable to pay compensation. The decision under review is affirmed.
...............[sgd].........................................................
Dr I. Alexander, Member
CATCHWORDS
COMPENSATION – injury – adjustment disorder with anxiety – reasonable administrative action – whether administrative action contributed to, to a significant degree, to the applicant’s ailment.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463; [2012] FCAFC 21
Comcare v Paul Mooi [1996] FCA 1587
REASONS FOR DECISION
Dr I. Alexander, Member
11 May 2018
INTRODUCTION

Mr Green had been a civilian employee with the Department of Defence since 2004.
In March 2008 Mr Green lodged a claim for compensation in respect of “1/52 of anxiety state” which he attributed to “hostile behaviour” by a work colleague. On 9 October 2008 Comcare accepted liability for “adjustment reaction (mild)”.
Mr Green was diagnosed as suffering an “adjustment disorder” and was off work for more than 12 months. His treating psychiatrist at that time was Dr Daniel Murray.
In June 2011 he commenced work as a Safety and Compliance Manager with the Department of Defence – Navy.
In 2013 a new organisational unit, Shore Force, was established and Mr Green continued as civilian employee in this unit in the position of Shore Force Safety Manager at the APS 6 level.
In January 2014 two new command officers were appointed to Shore Force. Captain Chandler, as Commander Shore Force (level 2 supervisor) and Commander Doble, as Deputy Commander Shore Force (level 1 supervisor).
Over the following two years certain difficulties emerged in the work relationship between Mr Green and his supervisors.
On 3 February 2016 Mr Green advised Commander Doble by telephone he was taking a personal leave day.
On 4 February 2016 Mr Green consulted Dr Murray who provided a medical certificate in which he stated that:
This is to certify that I assessed Mr Green on 4.2.16; due to perceived work stress I believe he is unfit for has work duties until further notice [emphasis added].
On the same day Mr Green consulted his general practitioner (GP), Dr Bransgrove who recorded in her consultation notes that he complained that he had been bullied at work for the last eighteen months.
On 5 February 2016 Mr Green lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) [the SRC Act]. He claimed that he suffered a psychological condition, “anxiety”, which he alleged was caused by his employment.
The claim was denied both initially and on internal review. In a reviewable decision dated 8 June 2016 the Review Officer determined that Mr Green’s psychological condition was “as a result of, at least in apart, by reasonable administrative action taken in a reasonable manner and therefore the exclusionary provision applies to exclude your claim from compensation”.
In these proceedings Mr Green seeks review of the reviewable decision. At the hearing both parties were represented by counsel. At the conclusion of the hearing it was agreed that the parties would provide the Tribunal with written submissions.
RELEVANT STATUTORY PROVISIONS
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(a)     a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the   employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a    promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
(c) 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(1) :
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
Mr Green claims that he had suffered a psychological condition described by various psychiatrists as “adjustment disorder with depressed and anxious mood” (the condition).
Mr Green contends that his condition was an “injury” within the meaning of s 5A of the Act in that it was an “ailment” that was contributed to, to a significant degree, by his employment and therefore a “disease” within the meaning of s 5B(1) of the Act.
The Respondent contends that Mr Green’s claimed condition was not a “disease” within the meaning ofs 5B(1) on the basis that “the particular employment circumstances said to be the most relevantly causal or contributory encompassed three discreet events or incidents that the Applicant cited in his claim as central to the development of his symptoms” and that these incidents constituted reasonable administrative action (RAA) within the meaning of s 5A(1) of the Act.
Therefore, the relevant issues in this matter are:
i)Was Mr Green’s claimed condition an “ailment” within the meaning of the SRC Act?; if so
ii)What was the date of onset of the ailment?
iii)Were there incidents or events in the course of Mr Green’s employment that could be identified as “reasonable administrative action taken in a reasonable manner”?; if so
iv)Did the “administrative action” contribute to, to a significant degree, Mr Green’s “ailment” so that it could be considered to be a “disease” within the meaning of the SRC Act?; if so
v)Was Mr Green’s “disease” suffered as a result of the “reasonable administrative action taken in a reasonable manner” in respect of Mr Green’s employment?
THE “AILMENT”
Mr Green claims that he suffered significant “workplace stress” following the arrival of Commander Doble and Captain Chandler in February 2014 and submits that this had contributed to the development of his psychological condition. Mr Green claims that from the outset his relationship with his new supervisors was strained and in his oral evidence stated that at the end of 2014 he was feeling “upset, anxious nervous, panic attacks, a loss, couldn’t sleep…… and restlessness.”
In his oral evidence Mr Green also claimed that following a difficult meeting with Captain Chandler, in March 2015, he began feeling worse with more frequent panic attacks and other symptoms. Mr Green said he went to see his regular GP, Dr Bransgrove, who gave him a referral see his former psychiatrist, Dr Murray, but did not go and see him until the following year.
At this point I note the following entries in Dr Bransgrove’s consultation notes:
13/2/2014 – Back pain since mopping – want Mc……. Psychiatrist advised Ativan 2 yrs ago – Discussed addictive quality, Referral to Dr Daniel Murray
6/ 6/ 2014- Dr Daniel Murray- last saw 2011 work related. Not having access to children yet -seeing Catholic care”
7/8/2014- Travelling interstate for job. Wants referral - ? depression/ anxiety …….Referral -Dr Daniel Murray
9/3/2015 – Spending more time with children. 1/52 Feel exhausted &SOB. Has had a few panic attacks at work last week. In family court on & off since 8/14.[1]
[1] On 9 March 2015 there is no reference to a psychiatric referral.
On the 2 February 2016, after about six weeks leave, Mr Green returned to work. On 3 February 2016, Mr Green notified Commander Doble that he was unwell and was asked to provide a medical certificate.
On the 4 February 2016 Mr Green was seen by Dr Murray who provided a medical certificate stating that Mr Green was unfit for his work duties until further notice.
Dr Bransgrove’s consultation note on 4 February 2016 states as follows:
C/O being bullied at work for last 18/12 – worse 12/12 but could not get out of bed y/day, recent panic attacks in past. Rang Psych Dr Daniel Murray …. & saw this morning. Put off work & advised to see lawyer, Union & given MC until further notice. Started Valdoxan 25mg [emphasis added]
On 5 February 2016 Mr Green lodged a claim for compensation.
MEDICAL EVIDENCE
Dr Daniel Murray – Treating Psychiatrist
In a very brief note dated 4 February 2016, Dr Murray stated that “due to perceived work stress, I believe he is unfit for his work duties until further notice”. There is no other record in Dr Murray’s clinical practice notes with reference to a consultation on this date.
Dr Murray’s subsequent clinical practice notes dated 10/03/2016, 14/04/2016 and 12/05/2016 are extremely brief and provide little meaningful information with regard to the onset of symptoms, cause or diagnosis of Mr Green’s condition.
Dr M. Hong – Consultant Psychiatrist
In a report dated 22 March 2016, Dr Hong noted that the date of assessment was 8 March 2016. He stated that Mr Green said he had been having issues with his two supervisors for about 12 months. On 2 February 2016 Mr Green returned to work after 4 weeks leave over Christmas and said that there were “no particular incidents” on that day but on the next day he woke up “not feeling psychologically well.”
Mr Green reported having a combination of depression and anxiety since January 2015 and described various incidents at work with respect to difficulty with his two supervisors.
With regard to co-existing factors, Dr Hong stated that Mr Green “did not confirm having physical health problems, financial concerns, relationship or family changes that could be relevant to his psychological symptoms”. Dr Hong noted that Mr Green had a motorbike accident in 2012 and takes analgesic medication.
Dr Hong noted various claimed psychological symptoms but provided no detail with respect to date onset or severity of these symptoms.
Dr Hong made a diagnosis of “adjustment disorder with mixed anxiety and depressed mood” with no explicit opinion as to causation but did comment that Mr Green had a “specific mindset regarding his supervisors and believes they have a vendetta against him.”
Dr M. Barrett – Consultant Psychiatrist
In a report dated 29 March 2016, Dr Barrett noted that the date of assessment was 17 March 2016 and the date of onset of symptoms was 1 February 2016.[2]
[2] Mr Green did not return to work until 2 February 2016.
Dr Barrett stated that Mr Green said that he had difficulties in the workplace following a change in supervisors in January 2014 and that from February 2015 the workplace had become “toxic” and “unbearable”. Mr Green said that that he went to his GP in 2016 as he “couldn’t do it” and returned to see “his psychiatrist.”[3]
[3] Dr Bransgrove’s consultation notes indicate Mr Green had last seen his previous treating psychiatrist in 2011.
Dr Barrett noted that Mr Green stated that his symptoms began in about 2014 in the context of difficulties with his supervisors and alleged that he was bullied and treated unfairly. He also reported symptoms of increased worrying, onset of panic attacks in 2015 and “impaired sleep, appetite, energy, distractibility and poor enjoyment”. Mr Green said that he was having three panic attacks a day triggered by contact with his supervisors and that this lasted for a few weeks.
Dr Barrett made a diagnosis of “adjustment disorder with mixed anxiety and depressed and anxious mood” and indicated that the stressor was Mr Green’s allegations about bullying in the workplace.
With respect to a causal connection between Mr Green’s condition and his employment Dr Barrett stated that he was unable to determine the facts of Mr Green’s allegations as it was “outside the range of his expertise”. He relied on Mr Green’s report of onset of symptoms after the change in supervisors in expressing an opinion that there was a “temporal” relationship.
Dr Barrett commented that Mr Green “had an unusual affect that seemed somewhat incongruent” and that “it was difficult to follow the interview because “he appeared thought disordered, with a level of circumstantiality and had to be redirected to the point of the question.”
Dr Inglis Howe Synnott – Consultant Psychiatrist
In a report dated 9 November 2016, Dr Synnott noted the date of assessment as 31 October 2016 and stated, inter alia the following:
According to Mr Green, in relation to his employment with the Department of Defence, his recent psychological difficulties first became significant in February 2015 – but they had been building up for some time beforehand; he said that there were no particular issues in his personal life at the time that could have contributed to these difficulties -and none since. [emphasis added]
When asked to identify the cause of his workplace related psychological symptoms, he nominated the following: behaviour of his first and second level supervisors, ‘they took a set against me” – this problem continued for the next 12 months, until he went off work in February 2016.
He said he went off work for the period of February 2016 – September 2016 because of the industrial situation and its impact on his psychological state. It was February 2015 when he first discussed his recent psychological difficulties with a GP, he then had some time off work-at that stage…..In the period February 2015 – February 2016, in total he had 6-7 weeks off due to his psychological symptoms.[emphasis added]
After consulting his GP in February 2015, it was February 2016 when he began consulting a psychiatrist…. When his psychological symptoms first became significant in February 2015, they included, anxiety and restlessness, unable to relax, highly strung, a sense of panic with shortness of breath and difficulty breathing. Poor sleep and poor concentration.
In the 12 months February 2015 – 2016 the anxiety settled but then he was overtaken by a sense of ‘giving up’, he lost his will and felt depressed and he was ‘over it – he felt things were pointless.
On specific enquiry, he described the following symptoms to a significant degree in the 18 months February – September 2016: depression, poor sleep…. anxiety and nervousness and difficulty relaxing; impaired concentration and memory; loss of motivation and interest, social withdrawal; loss of appetite.
These days, there are no significant psychological symptoms.
Dr Synnot concluded as follows:
In my opinion, in relation to his employment with the Department of Defence, he describes previously experiencing sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder with anxious and depressed mood – but with the improvement in the time off work (February 2016-September 2016), there is no current psychiatric condition.
Dr Synnot also stated that he had “no objective facts” to confirm Mr Green’s account about the workplace situation and that determining the truth about the workplace was “not in his area of expertise”.

Neutral Bay Medical Centre – consultation notes

In 2014 Mr Green was seen in consultation by Dr Bransgrove, on 11 occasions. During this period 5 medical certificates were issued stating that Mr Green was unfit for work on 10 days. The symptoms recorded when certificates were issued included back, thoracic and neck pain. The principal medical conditions addressed during the 2014 period were hypertension, weight, chronic pain and use of opiate medication. Apart from one reference to “depression anxiety” on 7 August 2014 there is no mention in the notes of any psychological symptoms.
In 2015 Mr Green was seen in consultation on 11 occasions, 9 times by Dr Bransgrove. During this period 9 medical certificates were issued stating that that Mr Green was unfit for work on 34 days. Between 17 June 2015 and 4 September 2015 inclusive, Mr Green was unfit for work for 22 days because of various respiratory symptoms with no recorded complaint of any psychological symptoms or work-related issues. Between 16 November and 27 November 2015, Mr Green was unfit for work for 10 days.
On the 19 November 2015 Dr Bransgrove recorded that Mr Green presented to Westmead Hospital complaining of “ear pain” and was found to have a fungal infection. A medical certificate for 5 days was issued.
On 26 November 2015 Dr Bransgrove recorded that Mr Green was “stressed as he had Family Court tomorrow” and “saw ENT spec- repacked L ear.” A medical certificate for 5 days was issued.
In both consultation notes there was no mention of any specific psychological symptoms and no reference to any workplace issues.
There were no other consultations recorded until 4 February 2016.
In a letter to Dr Murray dated 7 August 2014 Dr Bransgrove stated, inter alia, the following:
Thank you very much for seeing Andrew for assessment please. He has gone through separation prior to the birth of his second daughter 11/9/1, then a major motor bike accident for which he is still having physio, & C/O feeling of loss & being over whelmed since. His is still working and fairly happy there but has gained wt & is hypertensive & finding difficulty managing weight. This referral is valid for ……12…..months….Current medications Oxycontin Tablets ….Tramadol ..Temaze.. Panadeine forte ….Endone [emphasis added]
Dr P Wrigley, Senior Staff Specialist Pain Management and Research Centre RNSH
In a comprehensive report dated 5 August 2013 Dr Wrigley stated Mr Green’s problems included pain (upper thoracic, base of cervical spine, left hand), obesity, hypertension and moderately significant pain associated disability.
Dr Wrigley also noted that Mr Green had recently returned to full-time work and that whilst he enjoys being at work at the end of the day he does find “his pain quite overwhelming” and as a result he “often goes to sleep on returning home which has markedly disrupted his sleep routine.”

In a psychological assessment it was noted that Mr Green does not use any “pain medication at work, apart from the longer acting Tramal SR(100mg) each morning …..for sleep”. Withdrawal of these agents was recommended and replaced with more lasting self-management strategies via a 3 week ADAPT program.
The assessment also noted that Mr Green’s mood was in the normal range but that he was feeling under pressure to make a decision about his marriage and that a number of significant relationship issues had been identified.
CONSIDERATION
Mr Green claims that he suffered a “mental ailment” which was contributed to, to a significant degree, by his employment.
Relevantly in Comcare v Paul Mooi [1996] FCA 1587 (26 June 1996) his honour Drummond J stated as follows:
9. ………..A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease [emphasis added] ………..
12. ……….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. In short, I consider that Dr Tym, in drawing a distinction between clinically significant i.e., abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s14(1)…..” [emphasis added]
Apart from Mr Green’s self-report of symptoms there is, in my view, no other convincing evidence to support a conclusion that, during 2014 and 2015, he suffered a mental ailment within the meaning of the SRC Act.
Furthermore, the available evidence, particularly Dr Bransgrove’s consultation notes, does not support Mr Green’s claim that during 2014 and 2015 he suffered significant and increasing psychological symptoms because of workplace related issues.
On 4 February 2016, Mr Green claimed to be unwell and was certified unfit for his work duties until further notice by Dr Murray.
Dr Murray’s medical certificate and consultation notes can best be described as incomplete and are of little assistance other than to indicate that on 4 February 2016 something had changed which caused Mr Green to seek urgent psychiatric assistance. The notes refer to “toxic workplace…. restless, nervousness …. little nervous episodes” but provide no other meaningful information with regard to the diagnosis, cause, severity of symptoms or prognosis of Mr Green’s condition.
Dr Hong and Dr Barrett saw Mr Green in March 2016 and clearly based their opinions with respect to a diagnosis of “adjustment disorder with depressed and anxious mood” on Mr Green’s self-report of symptoms.
Both doctors accepted Mr Green’s version of incidents with respect to his employment but did not provide a definitive opinion as to the contribution of his employment to his psychological condition. Dr Barrett in fact stated that he was unable to determine “the facts of Mr Green’s allegations”
Dr Synnott agreed that Mr Green’s self-report of previous symptoms was consistent with a diagnosis of “adjustment disorder with anxious and depressed mood” but provided no opinion as to the date of the onset. Also, he concluded that as at the date of assessment on31 October 2016, Mr Green’s condition had resolved and that there was “no current psychiatric condition”.
On the issue of contribution by Mr Green’s employment, Dr Synnott specifically stated he had “no objective facts” to confirm Mr Green’s account about the workplace issues.
At this point I note that the history provided by Mr Green to the three psychiatrists was, in my view, somewhat misleading and was clearly intended to establish the workplace issues as the only cause of his psychological condition.
In the presentation of his history Mr Green clearly avoided other potential relevant factors such as his other health problems and domestic issues. Furthermore, he appears to have misrepresented the facts with respect to his psychological symptoms. This is best demonstrated by Dr Synnott’s note that “in the period February 2015 -February 2016, in total he had 6-7 weeks off work due to his psychological symptoms”, a fact which was clearly not supported by Dr Brandsgrove’s consultation notes.
Notwithstanding the difficulties with the evidence, I am satisfied that that in February 2015 Mr Green’s condition was a “mental ailment” for the purposes of the SRC Act and that the date of onset of the condition was on or about 3 February 2016.
However, apart from Mr Green’s self-report of symptoms there is, in my view, no persuasive or corroborative evidence to support a conclusion that Mr Green suffered significant and increasing psychological symptoms during 2014 and 2015.
Reasonable Administrative Action (RAA)
The Respondent submits that Mr Green’s psychological condition is excluded from the definition of an “injury” in s 5A (1) of the SRC Act because it is an ailment that would not have been a “disease” but for the causal contribution made to its development, immediately before it first manifested on 3 February 2016, by two employment incidents that in each instance constituted reasonable administrative action taken in a reasonable manner.
On the assumption that the date of onset of Mr Green’s condition was 3 or 4 February 2016 the Respondent submits the relevant incidents were:
i)The KER discussions of 16 December 2015 between Commander Doble and the Mr Green; and
ii)The employer contacting Mr Green in February 2016, on his return to work, to discuss arrangements in an attempt to arrange a meeting with Captain Chandler, his second level supervisor.
Performance Exchange - 16 December 2015
All Defence Force personnel are required to participate in the Performance Feedback Assessment and Development Scheme (PFADS).[4]
[4] Defence Enterprise Collective Agreement 2012 -2014 (“DECA”), Table D1.
A core element of the of PFADS includes a “performance exchange” which is a formal meeting undertaken twice each year between the first level supervisor and employee in which they discuss a number of issues in the context of two components “evaluation” and “planning”.[5]
[5] DECA, Table D2.
A key element of “planning” is to discuss and identify the Key Expected Results (KERs) “to be set for the forthcoming performance cycle”. Other elements in “planning” include discussion with respect to standards of expected behaviour, skilling requirements, learning needs, training and career development activities, work arrangements and leave plans.[6]
[6] DECA, Table D1.
Mr Green’s 2014-2015 performance report was finalised on 19 October 2015 at which time he was rated as “fully effective”.
The KERs for the following performance cycle, 2015-2016, were not finalised at that meeting.
On the 16 December 2015, a meeting with Commander Doble and Mr Green and his support person was held with a primary objective to identify the appropriate KERs in order to finalise the APS Performance Agreement for the 2015/2016 performance cycle.
The Respondent contends that this meeting was “reasonable administrative action” taken in a reasonable manner in accordance with s 5A(2) of the SRC Act .
The Respondent also contends that this “action” contributed, to a significant degree, to Mr Green’s psychological condition.
Mr Green does not challenge the contention that the meeting was “administrative action” and the Tribunal agrees that the meeting held on 16 February 2015 was an action “done with respect to the employment relationship that the particular employee has with his employer.”[7]
THE EVIDENCE
[7] Gray J CBA V Reeve [2012] FCAFC 21.
Mr Green
In the statement dated 5 February 2016, which was annexed to the compensation claim form Mr Green stated, inter alia the following:
CMDR Doble’s End Cycle performance assessment (Of which CMDR Doble failed to conduct within the prescribed timeframe) of me was rated “Fully Effective” this was supported by CAPT Chandler as he signed the document on the 19^th of October 2015. This process was to be finalised by 31^st August 2015………
Following the End Cycle review a new APS Performance Agreement was developed by me and forwarded to CMDR Doble for consideration on 26 October 2015 This document contained eight (8) Specific, Measurable, Achievable, Relevant and Time -bound Key Expected Results(KERs)….……
On 4^th December 2015 I received a different and incomplete draft APS Performance Agreement from CMDR Doble (Via email) with a meeting request for 11 December, however, as I was away on course-I did not see the draft proposal until my return on Monday 11^th December 2015 ….the meeting did not occur until Wednesday 16 December….. CMDR Doble’s proposed Performance Agreement contained fourteen (14) KER’s, that were not Specific, Measurable, Achievable Relevant and Time-bound……
The PFAD meeting occurred on Wednesday 16 December at 1000 with CMDR Doble my support person ….and myself. ….. CMDR Doble was not prepared to discuss my proposed KERs in fact he did not bring with him to the meeting a copy of them supplied to him on the 26 October 2015. CMDR Doble was very hostile toward me. Upon realisation that I would not sign off on his proposed incomplete PFAD he terminated the meeting. CMDR Doble CC’ed me on an email that he wrote to HR later that day sent at 17.01, in that email CMDR Doble made inappropriate, incorrect accusations……On Thursday 17 December CMDR Doble invited all safety staff (excluding me – the safety manager). It was explained to me by a member that attended the meeting that my direct reports – no longer answer to me …….Upon receipt of CMDR Doble’s email -I became deeply concerned and informed CMDR Doble, upon receipt he informed me that he was going to submit a formal complaint against me ….On Thursday 17^th December CMDR ignored me and would not acknowledge receipt of my Attendance Sheet ……On Friday the 18^th of December. It was my last working day of the year. CMDR Doble ignored me all day. Then I proceeded on leave.
In a statement dated 22 September 2016, which was prepared with legal assistance, Mr Green stated that “prior to suffering the injury on 4 February 2016 I was in good health…… .I cannot recall suffering any significant injury prior to the injury which occurred on 4 February 2016”. [emphasis added]
With respect to the meeting on 16 December 2015, Mr Green stated that Commander Doble did not bring a copy of the KERs proposed by Mr Green, was not prepared to discuss them and was “hostile” towards him.
Mr Green stated that the APS Performance Agreement developed by Commander Doble included 14 KERs that he was expected to achieve by July 2016 and that the “performance exchange” should have been completed at the end of August 2015.[8]
[8] Performance cycle in PFADS runs from 1 September to 31 August each year. [DECA – Table D1].
Mr Green added that he was also not provided an opportunity to discuss the KERs provided by Commander Doble and was expected to sign the performance agreement or “otherwise give reasons in writing as to why he disagreed with them.” He expressed the opinion that 14 KERs was too many and that they were not measurable, not realistic, not achievable in the time frame and did not take into consideration his perspective as to whether the tasks were sufficiently challenging and rewarding.
Mr Green then went on to describe his “current physical state” and listed several symptoms including the following:
Sleep is disturbed every night as a result of the bullying and harassment……I haven’t had much social interaction as a result of this injury …..I have been withdrawn from my group of friends …..this injury has affected my concentration ….I no longer leave the house unles I have to …..my daily routine has been affected
In his oral evidence Mr Green told the Tribunal that in the months after a difficult meeting with Captain Chandler in March 2015 he suffered “sleep, disturbance, panic attacks, restlessness and lack of motivation”. He said that he went to see his GP who referred him to his previous treating psychiatrist, Dr Murray, but that he did not see Dr Murray until the following year.
Mr Green confirmed that on 26 October 2015, he sent a document to Commander Doble with his 8 proposed KERs. He indicated that on 4 December 2015 he received a document from Commander Doble with 14 proposed KERs which, for a number of reasons, he considered to be inappropriate and felt that he was being “setup to fail.[9] Mr Green claimed that he tried to explain his position to Commander Doble who wasn’t interested and ended the meeting.
[9] In his statement Commander Doble notes that he provided his proposed KERs on 18 November 2015.
Mr Green said after the meeting he felt “terrible. Very depressed, a sense of not wanting to be there; panic attacks, shortness of breath, restlessness unable to do simple tasks ….” He went on to say that during his leave in January 2016 he “became a recluse” and didn’t leave the house. During that month he said that he got worse and had trouble getting out of bed, sleeping concentrating and performing simple tasks.
When asked whether he went to his GP Mr Green said “yes” but then conceded that in fact he did not see Dr Bransgrove until the beginning of February.[10]
[10] Dr Bransgrove’s consultation notes indicate that there were no consultations with Mr Green between 26 November 2015 and 4 February 2016.
In cross examination when asked how he felt in late 2014 and early 2015, Mr Green stated that he had trouble sleeping, was restless, couldn’t concentrate, had panic attacks, couldn’t complete a task and was nervous and anxious.
Mr Green denied that any of his symptoms could be attributed to his various other health issues or his domestic circumstances and when asked about these issues his responses were somewhat vague and generally unhelpful.
When asked questions about the fact that Dr Bransgrove had not recorded anything in her consultation notes about his claimed significant and persistent psychological symptoms and workplace difficulties, Mr Green’s answers became evasive and he said that he was “confused” and did not understand. Mr Green could not explain why he had not complained to Dr Bransgrove about being bullied at work until 4 February 2016 and suggested that “sometimes you can be bullied at work and not know it”.
Mr Green claimed that during 2015 his symptoms got worse but said that “after the initial consultation with Dr Bransgrove he had learnt how to handle the “panic attacks, and all that sort of stuff” and said that although he was concerned with the symptoms, “it didn’t cause me alarm.”
When Mr Green was asked to consider the APS Performance Agreement provided by Commander Doble he conceded that the proposed KERs 7 and 8 were acceptable but he had not been given an opportunity to agree to them individually because he had been told that the KERs were a “package deal”. When asked who said that it was a “package deal” he said that it was Commander Doble at the meeting and then conceded that those words were not in fact used and went on to explain as follows:
So basically what happened was, he wrote to me and he said ‘Because you take issue with these KERs I want you to address each one individually and tell me what’s wrong with them” And I said “I,ve already submitted the KERs that I think are reasonable in the circumstance and I’d ask that you review those. That’s the way the process works” I was unhappy with them and he spoke about them as if they were a collective…. [emphasis added]
When asked by the Tribunal to indicate how “the process” has been determined Mr Green stated “it’s a very defined process in the enterprise agreement a prescriptive process it is agreed upon that this is how KERs are developed, and he wasn’t following that process.”
Mr Green stated that Commander Doble’s process “is not in the enterprise agreement, it was his own process ,…… it was just something that he decided to do. It was totally different bizarre…”
When asked to explain where in the enterprise agreement does it say Commander Doble’s process was in any way inappropriate Mr Green replied as follows:
I believe my interpretation that a statutory document is/if it sets out the way to do things, and you deter from the way of doing things, that’s an incorrect way to do it That’s so its in the DECA. That’s my interpretation …..that’s the advice I got from HR as well.
Mr Green agreed that he had been asked to provide comments with respect to the list of KERs provided by Commander Doble because the KERs provided by him were “light on” and more was needed. Mr Green agreed he had not commented on Commander Doble’s list because it was not part of the process.
It was put to Mr Green that he ignored Commander Doble’s invitation to engage in discussion of his proposed KER’s and simply demanded that the KERs Mr Green had proposed should be adopted. Mr Green agreed that he did not discuss the KERs but denied making any demands.
Mr Green stated that he had contacted Ms Walker in HR who agreed that 6 KER’s “is all right” and when he spoke to colleagues the average number of KERs was 5.
Mr Green denied that Commander Doble had in fact indicated that he was prepared to engage in a discussion and willing to forgo some KERs as well as offering to delete one at the start of the meeting.
Mr Green indicated that he had not made any enquiries as to the availability of the support person, who had also been present at the meeting, to give evidence in these proceedings.
Commander Doble - First Level Supervisor
11 December 2015 12:50 PM - email: CMDR Doble to A. Green cc CAPT Chandler:
As briefly discussed. I am concerned that we will not complete your KER discussion prior to breaking for RAP. You have informed me that you do have some issues with my drafted KERs which to date you have not informed me of. As such, and to give us the best possible opportunity to complete this important process I have decided postpone the Kuttabul WHS DMA. For our discussion on Wednesday (to ensure a methodical approach to our discussion), 16 Dec 15, I request you write specifically what issues(s) you have with the proposed KERs [emphasis added]
16 December 2015 5:01 PM – email: CMDR Doble to J. Walker cc CAPT Chandler, A.Green:
I am seeking your guidance on how we (Shore Force) may move forward with the ongoing management/employment issues with Mr Andrew Green…….
On Wednesday 16 December at 1000, I met with Mr Green and his support person (*******) to undertake his 15/16 initial PFAD exchange. You will recall that his 14/15 end of cycle review was delayed, due to a number of contributing factors, and required your assistance on 15 October 15. Mr Green provided me his suggested KERs for the 15/16 reporting period on 19 October 15. In order to avoid future conflict in the PFAD cycle I provided my suggested detailed and measurable KERs to Mr Green on 18 Nov 2015.
Our first opportunity to meet and discuss these KERs was 11 Dec 15. At no time during the period 18 Nov – 11 Dec 15 did Mr Green advise me that he had issues with the KERs had provided him. Approximately 30 minutes prior to our scheduled meeting, Mr Green advised that his support person was unavailable and he had issues with what I had provided him. The meeting was rescheduled to occur today 16 Dec 15 at 1000. I asked him to provide written advice to what specific concerns he had at out 16 Dec meeting.
From the outset of today’s meeting Mr Green’s demeanour was defensive, aggressive at times, condescending and disrespectful. Little discussion took place regarding the draft KERs. He did not provide me with a written response regarding his concerns. Mr Green informed me that there were too many, were not in accordance with Defence Policy and were setting him up to fail. He did not agree with any of them. Further, he informed me that he thought I was incompetent, unapproachable and did not trust me. He went on to say that I have sabotaged his work, did not agree with the head quarters command and control arrangements and would not sign the draft 15/16 PFAD. Seeing no benefit in continuing I concluded the meeting at approximately 1100.
I have come to the opinion that Mr Green’s employment as the Shore Force Safety Manager is untenable. I believe that it would be of benefit to the command and Mr Green that an alternative work arrangement outside of Shore Force be pursued.

21 December 2015 12:25 Email: J.Walker to CMDR Dobel cc CAPT Chandler stated inter alia as follows:
Thank you for the conversations over the past few days and for taking the tome to listen to the concerns and for clarifying some of the issues that were raise by Andrew Green.
I understand that at this stage, Andrew has not articulated why he does not agree with KERs. I have had some previous discussion with Andrew with advice being provided on the requirement to participate in the Pfad process. There is no hard and fast rule on the amount of KERs. There is some guidance that states 6 to 8 (Andrew has found this guidance, but it is just that guidance and is not an adherence by any means. Having said that I always feel it prudent to apply the fair and reasonable rule whilst also considering the Business needs…..
I have advised Andrew if he was not satisfied after the discussion with CMDR Doble that he could escalate to the next level which would be CAPT Chandler
Obligations where KERs are not agreed:
12 01 05 agree.htm ……
Where there is a disagreement about the KERs to be included on a performance agreement, the employee and there first level supervisor are expected to resolve the matter as quickly as possible, As the approver of the performance agreement the second level supervisor may need to take a more active role to constructively manage the matter with the view to prompt resolution. Where this results in the second -level supervisor determining KERS for an employee, the employee is to be given the opportunity to comment on these KERs. The employee is expected to comply with any lawful and reasonable direction in the performance of their duties and work towards meeting those KERs.
Paul, thanks for sending through the Pfad for review. The reviewers, myself and my APS 6 Have reviewed independently of each other, do not see any major issues with the KER.s and suggest the following which would bring he amount of KER s to 11
KER 5 ……..prudent to remove this KER
KER 9 …..consider the wording ….Below is a reword of the KER
KER 12 …..due date 1^st Feb….. consider remove
Ker 14 ….as you have suggested, it is best to remove it
I understand that Andrew has been given the opportunity to make comment on the KERs. I would again ask him to provide comment on what he does not agree with and if this is not forthcoming than CAPT Chandeler will make the decision as to whether the KERs will remain …..ask for a response in person or email and if one is not forthcoming than escalate to CAP Chandler to make the decision. Andrew then either accepts the KERs or ask for a Review of Action
13 January 2016 11:18 - email: CMD Doble to J. Walker
Thank you for this comprehensive guidance. I am of the view that my attempts to resolve this matter have been exhausted. I assume that you have issued similar guidance instructions to Mr Green.
13 January 2916 11:25 - J. Walker to CMDR Doble
….Yes in a phone conversation that he did not particularly want to hear!
In a written statement dated 24 February 2016 CMDR Doble stated, inter alia, the following:
Mr Green’s 14/15 performance report was finalised on 19 Oct 15. He was rated fully effective following lengthy negotiation with HR Services Branch facilitating the exchange between he and I and an understanding that Key Expected results (KERs) for the 15/16 reporting period would be specific to avoid any future confusion regarding outcomes that would be required of Mr Green. He provided me his suggested KERs for the 15/16 reporting period on 26 Oct 15. In order to avoid future conflict in the reporting cycle……….
I provided my suggested detailed and measurable KERs to Mr Green on 18 Nov 15. Our first opportunity to discuss these KERs was 11 Dec 15. The delay was due to a combination of sick leave taken by Mr Green, a period of annual leave taken by myself and competing work priorities. At no time during the period 18 Nov – Dec 15 did Mr Green advise me that he had issues with the draft KERS I had provided him. Approximately 30 minutes prior to our scheduled meeting, Mr Green advised that his support person was unavailable and he had issues with what I had provided him. The meeting was rescheduled to occur 16 Dec at 1000. I asked him to provide me with written advice to what specific concerns he had……………………………..
On Wednesday 16 December at 1000, I met with Mr Green and his support person (*******) to undertake his 15/16 initial Performance exchange. From the outset of the meeting Mr Green’s demeanour was defensive, aggressive at times, condescending and disrespectful. Little discussion took place regarding the draft KER’s He did not provide me with his written response regarding his concerns. Mr Green informed me that there were too many, were not in accordance with Defence Policy and were setting him up to fail. He did not agree with any of them. Further, he informed me that he thought I was incompetent, unapproachable and did not trust me. He went on to say that I have sabotaged his work, did not agree with the Headquarters command and control arrangements and would not sign the draft 15/16 Performance Agreement. I subsequently informed HR Services Branch of the outcomes of the meeting and sought their advice of how best we might move forward as I had formed the opinion that Mr Green’s employment in the Headquarters ……...is noe untenable
Given Mr Green’s refusal to participate in the performance agreement process, the mounting work required of the Shore Force safety section and the lack of leadership provided to Mr Green’s small uniformed team I intervened and directed they report to me
In a statement dated 21 November 2016, Commander Doble covers essentially the same issues as his earlier statement. However, he also stated the following:
Applicant’s 2014/2015 performance report was completed on 19 October 2015. At the time of completing the Applicant’s performance report I maintained reservations about the Applicant’s performance during the review period and proposed to rate his performance as ‘partially met’. Following negotiations facilitated on the Applicant’s behalf by Human Resources Services Branch, the Applicant was rated ‘fully effective’. This rating was conditional upon the Applicant’s performance plan for 2015 /2016 including Key Expected results (KERs) that clearly stated expectations for the Applicant’s performance.
In his oral evidence Commander Doble was asked why there was a delay in setting Mr Green’s KERs for 2015/2016. He explained that the initial delay was the completion of the previous year’s performance which required facilitation with HR and there was also annual leave, which he took, and a number of absences by Mr Green.
Commander Doble explained that he received Mr Green’s suggested KERs in November and thought they were “light on” and not what had been agreed as a result of the facilitated conversation at the previous PFAD.
Commander Doble confirmed that he had emailed his suggested KERs prior to the meeting scheduled on for 11 December 2015 which was, in fact, cancelled 30 minutes prior to the scheduled start time because Mr Green’s support person was not available. Commander Noble confirmed that following the cancellation of the meeting he asked Mr Green to provide any input in writing and this was subsequently confirmed with an email. He explained the purpose was to create a starting point for the agreement which was to be discussed at a meeting on 16 December 2015 with the intention to ask Mr Green whether he had read the suggested KERs and what “his thoughts are”.
Commander Doble denied telling Mr Green that he suggested KERs were “take it or leave it” or “take them all or none of them” and confirmed that he had not consulted HR at that time.
Commander Doble stated that Mr Green said did not agree with the KERs, “all of them” and then pointed to KER 14 which he claimed was setting him up to fail. Commander said he offered to remove it.
Commander Doble confirmed that there was no discussion about individual details of the proposed KERs and said that Mr Green told him that “he did not trust me” and that I was a “bad manager”. He described Mr Green’s demeanour as “red faced, sitting on the edge of his chair, quite angry with an elevated voice”.
Commander Doble confirmed that he had offered to Mr Green the opportunity to discuss the KER’ one by one but that Mr Green did not wish to continue.
In cross examination Commander Doble conceded that at the meeting on 16 December 2015, he had only one document which were his suggested KERs but denied that his intention was to ensure that his version was to be adopted without discussion. He added that he had asked for input on two occasions with no response and at the meeting, with the support person present “we didn’t even get to the discussion about the KERs”.
Commander Doble agreed that on the 17 December 2015 he told two of Mr Green’s reports – that is, employees who reported to Mr Green - that they would be “reporting straight to me” because in his view Mr Green was not meeting the requirements of his position.
Captain Chandler- Second Level Supervisor
In a statement dated 21 November 2017 Captain Chandler states, inter alia, the following:
At the end of 2015 the Applicant’s performance assessment was again due. In November 2015, and in accordance with the advice provided by HR, a more detailed and specific set of expected key result areas was given to the Applicant for his review and comment. Commander Dole advised me he would meet with Applicant in December to discuss the matter. This meeting was cancelled at the request of the Applicant, at the same time the Applicant advised Commander Doble that he could not agree with the proposed key result areas. A later meeting on 16 December 2016 with Commander Doble quickly ended when the Applicant refused to discuss any performance measure, or key result areas. Commander Doble met with me at the conclusion of that meeting and was visibly upset and stated that he had been insulted by the Applicant
Noting the upcoming Christmas and New Year leave period I advised the Applicant and Commander Doble that it was better for all to defer finalisation of the matter until the leave period was concluded.
In cross examination when asked to consider the proposition that whether Commander Doble’s failure to bring a copy of Mr Green’s proposed KERs to the meeting on 16 December 2015 was not in accord with the correct process, as required by the DECA, the Captain stated the he did not agree. He said “[w}hat there needs to be is a discussion that speaks of a view of what the outcome is to be. There’s no requirement for Mr Green to bring Mr Doble’s documents to the table or Mr Doble to bring Mr Green’s documents to the table; there’s a requirement to bring both their views to the table and have a discussion and reach an agreement.”
Mr G. Ladbrook – Mr Green’s support person
20 January 2016 10:59 AM - G. Ladbrook to CMDR P. Hines Fleet Personnel Officer
Subject: Mr Andrew Green PFADS discussion
Paul
As we discussed
Andrew was participating in the PFADS process as required by the DECA
Andrew submitted his PFAD Ker’s some time previously but CMDR Doble rejected the expected results statements and revised the outcomes. CMDR Doble them expected Andrew to respond in writing should disagreed with outcomes. This management action alone is clearly a breakdown in the PFADS open discussion process as agreed in the DECA. [sic]
As Andrew’s support person it was clear to me very early in this particular PFADS conversation process both parties showed an intransigent attitude to each other. This position could have stemmed from the previous PFADS discussion, where an attempt was made by CMDR where an attempt was made by CMDR Doble to grade Andrew “Partially Effective” with insufficient discussion or supportive evidence (PSST advised Doble to correct this mistake.
Ker’s presented to Andrew by CMDR Doble were disjointed. With many of the KER’s containing multiple interdependent outcomes. Work Time in the year would have been a factor. The PFAD process is designed to be a simple measurable outcome or what can be expected to be a work result. A simple process really
I became concerned during the process when CMDR Doble commented “he did not care about the DECA. This was his command and people would do what they are told”
Allin al, the whole meeting was the very example of how not to conduct a PFADS discussion. It was very uncomfortable and charged atmosphere and I was concerned that CMDR Doble appeared to not know the PFADS process and was stumbling along and was not very prepared to hold this type of discussion, shuffling through documents that did not pertain to the Andrews PFADS discussion
Whilst Andrew participated in the conversation process he confided in me prior, he thought they would not reach any satisfactory agreement. I believe both have brought previous poor PFADS discussions with after…[sic]t
I note at this point that this document was contained in s 37 Documents but was not referred to or considered by either party during the hearing. Both parties were able to provide written submissions with respect to this document at a subsequent date.
Proposed meeting with Captain Chandler in January 2016
The Respondent contends that the email correspondence for the purpose of arranging a meeting with Captain Chandler, Mr Green’s second level supervisor, on 1-3 February 2016 was an “administrative action” because an agreement on the KERS for 2015/2016 needed to be resolved as Mr Green’s ongoing employment could not occur indefinitely without such an agreement.
Mr Green submits that the meeting never took place and that the email exchange was not “an administrative action” taken in respect of his employment.
EVIDENCE
Emails
29 January 2016 09:27 – CAPT Chandler to A. Green
With the commencement of another working year and your return to work on Monday 1 Feb I would like to meet with you at 11:30 on Monday morning to discuss the way ahead for 2016 – noting the impasse in agreeing KERs for this reporting period at your meeting with CMDR Doble at the end of last year. …..The meeting will be with myself and will not include Commander Doble ………Can you please confirm with LEUT Keast that you have received the direction on your return on Monday 1 Feb
1 February 2016 08:5 2 LEUT Keast on behalf of CAPT Chandler to A. Green
Noting that your return to work is on Tues 2 Feb, CAP Chandler would like to meet with you tomorrow not today. I have confirmed that 11:30 remains free in his calendar for this meeting
2 February 2016 8:53 A. Green to LEUT Keast
I have received the following direction from CAPT Chandler (below ) just now …I am unavailable for the meeting today ……I would prefer to have a support person present at the meet notice to organise
2 February 2016 08:53 A. Green to CAPT Chandler
Hi Chris
I have received the following direction from CAPT Chandler (below) just now …..I am unavailable for the meeting today ….. I would prefer to have a support person present a the meeting and as such would request that a time be allocated, that provides me sufficient time to organise ….
2 February 2016 10:27- LEUT Keast to A. Green
I tried to call you at 1017 when I got back in from a meeting. CAPT Chandler would like this meeting to happen today, youv’ve advised that you are unavailable; can you let me know what task you are undertaking this morning that is preventing you attending this meeting….. Once you have gottenback to me and only if needed we can look at organising another meeting time
2 February 2016 12:27- CMDR Doble to LEUT Keeast
Did the meeting happen?
2 February 2016 12:30 - LEUT Keast to CMDR Doble in response to a question as
No
Response from Andrew
I have received your message left via telephone requesting a reason as to why I am unavailable, for a meeting today ……Firstly as indicated below I requested sufficient notice be provide, to attend a meeting to discuss such sensitive issues. I would prefer to have a support person present at any such meeting…….Secondly, as per CAPT Chandlers email the meeting is to discuss “ the impasse in agreeing KERs for this reporting period at your meeting with CMDR Doble at the end of last year “ If this is correct, I would consider this inappropriate, as there is currently a fact finding exercise occurring regarding these very issues of which I would be surprised if CAPT Chandler was not aware of…….Finally after returning from an extended leave period, immediately on my return to work , I now find myself currently addressing the request for information from the fact finder.
Response to Andrew by the Boss
I am disappointed that you are not attending this meeting. My discussion with you is nit in relation to the content of KER, to discuss those KERs, or in any way connected with the fact finding underway, but rather to discuss how we might employ you in a role of the Shore Force Manager give non- agreed KERs……I do not agree that 3 hours is insufficient time for you to be advised of a requirement to attend a meeting. The meeting is not formal counselling and, in my view, should not require a support person; however, to be perfectly clear I have no objection at all to a support person being present. I just do not accept sourcing a support person as a reasonable basis to defer a meeting with which you have been provided 3 hours notice …… Consequently, I am directing you to meet with me at 11:30 tomorrow. Please make arrangements to make a support person present if you wish one to accompany you. If you are unable to source a support person, please advise LEUT Keast and I will ensure that an independent observer attends.
3 February 2016 10:34 - CMDR Doble to A. Green CC CAPT Chandler
I refer to your phone call to me at 0823 Wednesday 03 Feb 16 when you stated that you were taken a personal day. IAW with the DECA extract below, I require you to produce a Medical Certificate and Reasons to me for your absence on your return to work.
134. 3 February 2016 3:56 PM
Noting your absence today precluded our meeting organised for 11:30 this morning being held, I require you on your first day return to work to liaise with LEUT Keast to schedule a 30 minute meeting with me at the first availability in my calendar.
Mr Green
In the statement dated 5 February 2016, Mr Green states inter alia as follows:
On Friday 18 December. It was my last working day of the year, CMDR Doble ignored me all day. I then proceeded on leave…..I returned from leave on 2 February 2016, that night I could not sleep and was deeply concerned. The following morning I rang CMDR Doble to inform him I was unwell and would be taking a personal day. CMDR Doble stated that I was not sick and directed me to obtain a Medical Certificate.
In the written statement of 22 September 2016, Mr Green repeated as above but added the following:
I went to see my treating doctor Dr Bransgrove, on 3 February 2016 who referred me to a psychiatrist. I had seen Dr Bransgrove a few times prior to 3 February regarding the issues happening at work. I saw my psychiatrist that day or the next day who certified me unfit for work.[11]
[11] Note Dr Bransgrove’s consultation that Mr Green was seen on 4 December 2016 after he had seen Dr Murray in the morning.
In cross examination Mr Green was asked how he was feeling in early December 2015. He stated that he was “not very good ..in all respects ….just not well” and when asked to be more descriptive said “as already explained ….I have trouble sleeping…shortness of breath, panic attacks , trouble concentrating on any one thing , restless and anxiety.”
When asked why he felt it was necessary to consult Dr Bransgrove on 4 February 2016 Mr Green replied as follows:
Because the symptoms got that bad that I couldn’t get out of bed. I was just in a stat. It was new. The symptoms weren’t what I’d been dealing with. They’d just sort of gotten to a state which scared me. It scared me to the point where I wanted medical assistance

When asked how he was feeling on the day he returned to work Mr Green replied that that they were the same constant symptoms that he had been experiencing since February 2015 but when he woke up on 4 February 2016 and went to seek medical help “he was suffering different symptoms”
Commander Doble
In the statement dated 5 February 2016 Commander Doble stated as follows:
Mr Green returned to work 02 February 2016 following an extended six week period of leave. Noting the impasse in agreeing his KERs Captain Chandler requested that they meet to discuss the way ahead for 2016 . Mr Green responded to Captain Chandler’s request by stating that he was unavailable and would prefer to have a support person in attendance. Mr Green rang in to state that he was taking a personal day the following day a 0830 (3 February 16) . During the telephone exchange I challenged him and informed him that I believed him to be deliberately avoiding the direction of his 2^nd level supervisor to meet him. He then advised me that that he was sick.
Captain Chandler
In the statement dated 21 November 2017 Captain Chandler stated that on 29 January 2016, believing that Mr Green was returning to work on Monday 1 February 2016, he sent an email to Mr Green requesting a meeting to “discuss with the Applicant his role for the coming year, given the impasse in relation to agreement of the Applicant’s Key Expected results (KERs).”
Captain Chandler re-stated the contents of the emails set above and noted that the meeting proposed for 3 February 2016 did not proceed as Mr Green did not attend work on that day.
In his oral evidence Captain Chandler confirmed that, in December 2015 he had advised Commander Doble and Mr Green that any further discussion about Performance Agreed should be deferred till after the Christmas break so that everyone could “take a deep breath and consider matters afresh in the New Year”. He said that he wanted to meet with Mr Green on his return from leave “to discuss how we might employ him in his role while we got to an agreement on what his key deliverables were” because he could not have a paid employee working without a performance assessment regime and was hoping for a solution.
Captain Chandler explained that he wasn’t sure whether that “was going to need a facilitated conversation with HR again or whether we would be able to do it, but - the first thing I wanted to do was have a conversation with Andrew to see what he thought the way ahead might be.”
Captain Chandler explained that when Mr Green came to see him and said that he could not attend a meeting with only three hours because a support person was required, he questioned the need for a support person since he was not doing formal counselling. As Mr Green insisted on having a support person the meeting was postponed to the following day but did not take place because Mr Green did not return to work.
Captain Chandler agreed that the purpose of the a meeting was to try and work out how Mr Green might best be made use of until such time as his KERs were established and said that he “wanted to have a meeting with him to say whilst we were in the process of resolving those, how can we sensibly employ you” and come to an agreement with Mr Green on how that might be done “ through the agreement process”.
With respect to the cancellation of the proposed meeting in February 2016, Captain Chandler indicated that he did know that Mr Green was unwell and only had a statement that he could not attend the meeting because he could not get a support person within three hours.
CONSIDERATION
The Respondent submits that Mr Green’s ‘ailment” would not have been a “disease” within the meaning 5B(1) of the SRC Act but for the causal contribution of two employment events, namely, the meeting with Commander Doble on 16 December 2015 and the request for a meeting with Captain Chandler in February 2016.
The Respondent also submits that both employment events constituted “reasonable administrative action taken in a reasonable manner” and therefore Mr Green’s ailment was excluded from the definition of an “injury” in accordance with s 5A(1) of the SRC Act.
16 December 2015
Mr Green contends that the evidence does not establish that the effect of the “relatively short meeting” on 16 December 2015 “amounted to a difference between a sub-significant and a significant contribution made by the employment.”
Counsel for Mr Green submits that by the time the meeting on 16 December 2015 occurred Mr Green was “already substantially damaged” on the basis of his “self- reporting indicating increasing symptoms in the course of the year”.
I understand this submission to suggest that the “relatively short meeting”, in itself, did make a contribution but, not necessarily, to a significant degree, to Mr Green’s “ailment” when compared to the contribution by his prior employment in general.
I accept that the meeting on 16 December 2015 did make a contribution to Mr Green’s ailment, because the issues with respect to the KERs were not finalised. However, I am not convinced that the contribution was to a significant degree.
Notwithstanding Mr Green’s claim that he suffered significant and increasing psychological symptoms during 2015, I am not persuaded that the available evidence supports a conclusion that Mr Green was “already substantially damaged” prior to the meeting in December 2015. As noted above, his claim was not supported by Dr Bransgrove’s consultation notes and, during that time he did not suffer a “mental ailment” within the meaning of the SRC Act.
For present purposes, however, in order to deal with the submission by the Respondent, I intend to proceed on the assumption that the meeting on 16 December 2016 was an “administrative action” that contributed to, to a significant degree, to Mr Green’s “mental ailment”.
In response Mr Green submits that the meeting on 16 December 2015 did not amount to “reasonable administrative action taken in a reasonable manner”.
In considering Mr Green’s submissions it is relevant, at this point, to make some general observations about his evidence before the Tribunal.
His evidence in general, and particularly his oral evidence which was lengthy and complex, demonstrated a clear conflict in his perception and recollection of the details that are relevant to the various issues that are to be considered in this matter, when compared to other evidence.
A likely factor contributing to the conflict in the evidence is the fact that during 2014/2015 there had been a difficult and somewhat tense relationship between Mr Green and his new first and second level supervisors. Mr Green’s perception of the workplace was that it was “toxic”, that he was being “bullied” by both supervisors, particularly Commander Doble, and that during 2015 things had deteriorated.
In my view, it is clear from the available evidence that Commander Doble found Mr Green to be a demanding and frustrating employee and had concerns about his attitude, conduct and performance. While I accept that Mr Green’s perception was that he had been “bullied” by Commander Doble I am not persuaded that that the evidence, in general, supports a conclusion that Mr Green was, in fact, “bullied”.
The resolution of the conflict in the evidence is problematic because, I have formed the view that some of Mr Green’s evidence was not reliable.
In general, I found much of Mr Green’s evidence to be self-serving with a tendency to focus on his perceived forensic interests, no acceptance of the possibility of any fault on his part and little regard to other issues in his circumstances that may have contributed to his claimed psychological symptoms.
Mr Green’s persistent denial that, during the relevant period, his domestic circumstances and various other health problems had no impact on his claimed psychological symptoms I found puzzling.
Mr Green’s evidence was also diminished by frequent inconsistency as demonstrated by the histories he provided to the three psychiatrists which were not only inconsistent but at times misleading.
Of particular concern was Mr Green’s claim that he suffered severe, persistent and increasing psychological symptoms throughout 2104 and 2015, a claim which was not supported by Dr Bransgrove’s consultation notes. His oral evidence with respect to this issue I found to be evasive and unconvincing. Also, his almost precise and repeated description of his multiple symptoms at various times, in my view, gave the impression of having been rehearsed with an element of retrospective enhancement.
Notwithstanding the concerns about the general reliability of Mr Green’s evidence, it is necessary to focus on the evidence with respect to the circumstances leading up to and including the meeting on 16 December 2016.
There are clearly two versions with a clear conflict between Mr Green’s evidence and that of Commander Doble.
Mr Green’s End Cycle Performance Assessment for 2014 /2015 was signed on the 19 October 2015 where he was rated “fully effective.” This process should have been finalised by 31 August 2015, a point frequently raised by Mr Green and his Counsel.
The Respondent’s position is that the rating of “fully effective” was conditional upon Mr Green’s performance plan for 2015/2016 including more detailed and measured KERs. Mr Green disputes that the rating was conditional and submits that it had been agreed that the process was to be conducted on the basis that he had a “clean slate.”
There is no dispute that Mr Green developed a draft APS Performance Agreement which he forwarded to Commander Doble on 26 October 2015 for consideration. The document included 8 KERs as proposed by Mr Green.
In his statements Commander Doble indicated that he had provided alternative detailed and measurable KERs to Mr Green on 18 November 2015.
Mr Green claimed that he received an incomplete draft APS Performance Agreement from Commander Doble, via email, on the 4 December 2015 with a meeting request for 11 December 2015. The draft agreement included 14 different KERs. The difference in the dates is unexplained.
The “performance exchange” meeting scheduled for 11 December 2015 was cancelled at short notice because Mr Green’s support person was not available. The meeting was rescheduled for Wednesday 16 December 2015.
On 11 December 2015, Commander Doble sent an email to Mr Green with a request to indicate in writing the specific issues he has with the proposed KERs in order to ensure a “methodical approach” to the discussion.
The performance exchange was held on Wednesday 16 December and started at 10.00 am. Present were Commander Doble, Mr Green and his support person, Mr Ladbrook.
Mr Green submits that the process as described above was “not reasonable” because “the collaborative process envisaged by the DECA was plainly not followed”.
In his documentary and oral evidence Mr Green points to the delays in both the 2014/2015 and 2015/2016 performance agreements and implies that Commander Doble was solely responsible. Mr Green does not acknowledge any contribution to the delays despite the fact that between June 2015 and November 2015 he was unfit for duties for approximately 6 weeks with various non-psychological medical issues as well as the fact that the meeting on 11 December 2015 was postponed at his request.
Mr Green’s counsel submitted that the standard process “generally involved the employee proposing a set of KERs, and if the supervisor considered it necessary, he or she can propose a set of KERs and then there would be a collaborative process of negotiation in which both parties participated to achieve a mutually acceptable outcome.”
I accept that this description is a reasonable paraphrase of the process as outlined in the DECA but I do not accept the implication in the submission that only Mr Green’s proposed set of KERs should have been up for discussion.
Also, I do not accept the assertion by Mr Green, in his oral evidence, that the process described in the DECA is a “prescriptive process” and that only his interpretation of the process should be taken as correct.
In my view, any fair reading of the DECA, would conclude that it provides for a collaborative process that is sufficiently flexible to accommodate a variety of circumstances.
I am satisfied that the process of Mr Green’s performance assessment up to the point of the scheduling of the performance exchange meeting for the 16 December 2015 to be consistent with the DECA and reasonable.
Furthermore, in my view, there is nothing in the DECA which states that Commander Doble was not entitled to provide Mr Green with alternative KERs for his consideration and required to simply accept Mr Green’s proposed KERs as the only KERs to be discussed. Given the apparent difficulties in finding a suitable time for the performance exchange meeting, I consider that Commander Doble’s request for feedback in writing was not only reasonable but quite appropriate. In my view, if Mr Green had identified his specific concerns prior to the meeting some of the ensuing difficulties may have been avoided.
The “performance exchange meeting” on 6 December 2015 was clearly necessary in the context of Mr Green’s continuing employment and, therefore, I am satisfied that it was “reasonable administrative action” for the purposes of the SRC Act.
Therefore, the relevant question is whether the meeting was conducted in a reasonable manner.
Mr Green submits the meeting was not conducted in a reasonable manner because Commander Doble had taken control of the process of discussing the KERs “by imposing an agenda for the meeting limited to his set of KERs to the exclusion of those drafted by Mr Green” which was not consistent with the DECA.
Mr Green submits that, given the substantially shortened period left for compliance, the fact, that he had a problem with a number of the KERs proposed by Commander Doble, was not an indication that he was not prepared to discuss a compromise document, based in part upon his own set of KERs.
Mr Green submits that Commander Doble’s insistence on confining negotiations to his own set of KERs, then abandoning any further discussion of the KERs until sometime in 2016, when only “seven months” would be left in the performance assessment year, and finally removing Mr Green from the chain of reporting should be considered unreasonable actions in the circumstances.
It is clear from Mr Green’s evidence that he was unhappy with the whole process by which his performance agreement was being managed because he believed that Commander Doble had proposed too many KERs which were generally not measurable and, in his opinion, not achievable in the remaining assessment period. He was clearly of the view that only his draft assessment agreement should have been discussed at the meeting.
In his evidence Commander Doble describes a different version of the meeting. In his email to HR dated 16 December 2015 Commander Doble stated that, from the outset of the meeting Mr Green’s “demeanour was defensive, aggressive at times, condescending and disrespectful. Little discussion took place regarding the draft KERs. He did not provide me with a written response regarding his concerns. He informed me that there were too many, were not in accordance with Defence Policy and were setting him up to fail. He did not agree with any of them. Further, he informed me that he thought I was incompetent, unapproachable and did not trust me”
In his email of 20 January 2016 Mr Ladbrook criticised Commander Doble’s management of the meeting as well as the content of the presented KERs. He described “an uncomfortable and charged atmosphere” and that early in the conversation “both parties showed an intransigent attitude to each other.” He also stated that prior to the meeting Mr Green had indicated that he thought that “they would not reach any satisfactory agreement.”
It is clear from the available evidence the each of the parties, present at the meeting, had a different perception as to the details of what actually happened during the meeting.
I am aware that Mr Ladbrook’s version of the meeting was not able to be tested in cross examination and have taken this into consideration with respect to my decision.
In my view, it is clear from the available evidence that Commander Doble and Mr Green clearly had opposing opinions as to how the meeting was to be conducted and what was to be discussed. Given the previously strained relationship between them the evidence suggests that a mutually acceptable agreement was unlikely.
Without deciding, as to whose version of the meeting was correct, I am satisfied that the evidence clearly demonstrates that the meeting did not progress in a manner as intended by either party and that the primary purpose of the meeting was not achieved.
It follows that I cannot be satisfied that the meeting can be considered to have been conducted in a reasonable manner.
Therefore, the “reasonable administration” exclusion provision of s 5A(1) of the SRC Act cannot be applied.
February 2016
The next issue to determine is whether the circumstances surrounding the attempt, in February 2016, to arrange a meeting between Captain Chandler and Mr Green was “reasonable administrative action taken in a reasonable manner” and, if so, whether the action contributed, to a significant degree to Mr Green’s “ailment”.
Counsel for Mr Green submits that, as the proposed meeting never took place and, as no interaction between Mr Green and Captain Chandler took place, therefore, no “administrative action” had been taken in respect of Mr Green’s employment.
Counsel also submits that the purpose of the meeting was to deal with “operational” issues, namely, “duties Mr Green would perform, and where he would perform them.”
The Respondent submits that the request for a meeting to “resolve the impasse “in respect to Mr Green’s 2015/2016 performance agreement was an “administrative action” and, in particular, a “reasonable administrative action taken in a reasonable manner”.
The Respondent also submits that the action taken “was something reasonable done in connection with a reasonable appraisal of an employee’s performance so as to satisfy s 5A(2)(e) of the SRC Act”.
In determining whether the request for the meeting with Captain Chandler in February 2106 was “reasonable administrative action” it is helpful to consider certain aspects of the email exchange between Commander Doble and Ms Walker (HR).
Following the unsuccessful meeting with Mr Green on 16 December 2015, Commander Doble sought guidance, via email, from Ms Walker in HR about Mr Green’s “ongoing management/employment issues”.
In the email, with copies to Captain Chandler and Mr Green, Commander Doble stated his version of the interaction with Mr Green in the meeting and expressed the opinion that “Mr Green’s employment as Shore Face Safety Manager is untenable”.
On 21 December 2015 in reply, Ms Walker stated that she had advised Mr Green that if he was not satisfied after the discussion with Commander Doble he “could escalate to the next level which would be Captain Chandler and that he could seek a review of action in relation to the KERs.”
Ms Walker referred to a document titled “Obligations where KERs are not agreed” and noted, inter alia, the following:
As the approver of the performance agreement the second level supervisor may need to take a more active role to constructively manage the matter with the view to prompt resolution. Where this results in the second -level supervisor determining KERS for an employee, the employee is to be given the opportunity to comment on these KERs. The employee is expected to comply with any lawful and reasonable direction in the performance of their duties and work towards meeting those KERs.
Ms Walker also noted that the KERs proposed by Commander Doble had been independently reviewed and that that there were no major issues but suggested some changes which resulted in a reduction in the number of KERs to eleven.
Ms Walker suggested that Mr Green be again given an opportunity to comment on what he does not agree with, and “if this is not forthcoming, then Captain Chandler will make the decision as to whether the KERs will remain. I would not allow this to go on for too long, ask for a response either in person or email and if one is not forthcoming then escalate to Captain Chandler to make the decision. Andrew then either accepts the KERs or asks for a Review of Action.”

On 13 January 2016, via email, Commander Doble informed Ms Walker, with a copy to Captain Chandler, that he “is of the view that his attempts to resolve this matter have been exhausted” and asked whether Mr Green has been issued with “similar guidance/ instructions.”
On 13 January 2016, via email, Ms Walker informed Commander Doble that she had a phone conversation with Mr Green that “he did not particularly want to hear.”
I am satisfied, on the above evidence, that Commander Doble did not want to have further discussions with Mr Green and wanted the matter to be referred to Captain Chandler, Mr Green’s second level supervisor.
It follows that Captain Chandler was to be responsible for the continuing management of the issues with Mr Green’s performance agreement and, in my view, the proposed meeting with Mr Green on his return to work was the next reasonable step in an attempt to resolve the outstanding issues.
I expect, in her conversation with Mr Green, Ms Walker would have informed him as to the continuing role of Captain Chandler in the resolution of the unresolved issues and explained that the KERs proposed by Commander Doble had been independently reviewed and, with some changes, had been considered to be satisfactory.
Mr Green would have been aware that on returning to work he would have to meet with Captain Chandler and that a resolution of the issues with his performance agreement was necessary for his continuing employment.
Therefore, I am satisfied that the request for a meeting with Captain Chandler and the associated email correspondence was an “administrative action” and was not only reasonable but in fact necessary in respect of Mr Green’s continuing employment.
I do not accept the submission that the purpose of the meeting was only to deal with “operational issues”.
Furthermore, I am satisfied that there is nothing in the correspondence which, in the circumstances, could be considered to be unreasonable.
It follows that I am satisfied that the request for a meeting and the associated email correspondence was “reasonable administrative action” taken in a reasonable manner in respect of Mr Green’s employment.
Contribution to a significant degree
The next issue to consider is whether the “administrative action” contributed to, to a significant degree, to Mr Green’s “ailment’ so that the ailment could be considered to be a “disease” with the meaning of s5B(1) of the SRC Act.
From Green’s own evidence it is clear that following his return to work, on 2 February 2016, something happened that caused him to seek psychiatric assistance.
The details as to what actually happened are, in my view, unclear. Mr Green’s evidence, on this issue, I found to be somewhat inconsistent and confusing. He claimed that he suffered “new symptoms” but was unable to provide a reasonable explanation as to what this actually meant.
The contemporaneous notes of Dr Bransgrove and Dr Murray do not assist as they do not provide a meaningful clinical description of Mr Green’s claimed “new symptoms.”
Counsel for Mr Green submitted that the most likely explanation for Mr Green’s “breakdown” is that following four weeks leave in which Mr Green said “he was getting very much worse” and “he was obliged to return to an environment that he had found to be toxic for the best part of two years, and the New Year was starting with yet another round of discussions with a supervisor who clearly had had little regard for him…”
I find Counsel’s submission to be somewhat speculative and not entirely consistent with the available evidence.
Mr Green was, in fact, on leave for about six weeks and the only evidence to support his claim that during his leave “he was getting very much worse” is his self-report of symptoms.
Dr Bransgrove’s consultation records indicate that she did not see Mr Green between 22 November 2015 and 4 February 2016 and there is no evidence of any other medical attendances during that period.
In my view, it is implausible that if Mr Green “‘was getting much worse” to the point of a “breakdown” he would not seek assistance from his GP who he had been seeing on a regular basis for many years.
I find that the evidence points to a conclusion that the “administrative action”, for reasons that are unclear, “triggered” the onset of Mr Green’s psychological “ailment”. On the available evidence, there is no other plausible reason that would explain the sudden deterioration in his claimed symptoms on the two days after he returned to work.
It follows that I am satisfied that Mr Green’s “ailment” was contributed, to a significant degree by the “reasonable administrative action taken in a reasonable manner” as described above. This means that the “ailment” suffered by Mr Green is consistent with the definition of a “disease” in s 5B(1) of the SRC Act
Causal Connection
In Comcare v Martin [2016] HCA 43:339 ALR 1;91 ALJR 29 the court held at [47] that:
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 exclusory phase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that th employee would not have suffered that disease, as defined by s5B(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 of the administrative action that was contributed to, to significant degree, by the employer’s employment”
As noted above I am satisfied that the request for a meeting with Captain Chandler and the associated email correspondence was an “administrative action” that contributed to, to a significant degree, to Mr Green’s “ailment”.
There is a clear temporal relationship between the ‘administrative action” and Mr Green’s “ailment” with no other reasonable explanation to account for the apparent change in his mental functioning and behaviour. The precise reason as to why the “administrative action” should have had such significant impact on Mr Green’s mental functioning and behaviour is, in my view, unclear and open to speculation.
Therefore, on consideration of the available evidence, I am satisfied that Mr Green would not have suffered a “disease” as defined in s 5 B(1) if the “administrative action” had not been taken.
It follows that the exclusion definition of “injury” in s 5A(1) of the SRC Act applies so that Mr Green’s “disease” was not an “injury” for the purposes of the SRC Act.
DECISION
For reasons set out above, the Tribunal finds that Mr Green’s “disease” was suffered as a result of “reasonable administrative action taken in a reasonable manner” and therefore was not an “injury” for the purposes of s 5A(1) of the SRC Act. This means that Comcare was not liable to pay compensation. The decision under review is affirmed.

I certify that the preceding 236 (two hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...............[sgd].........................................................
Associate
Dated: 11 May 2018

Dates of hearing: 7-8 December 2017 and 25 January 2018

Counsel for the Applicant: Leo Grey

Solicitors for the Applicant: Brydens Law Pty Ltd

Solicitors for the Respondent: Lehmann Snell Lawyers

[2018] AATA 1266

11 May 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Dates of hearing:	7-8 December 2017 and 25 January 2018
Counsel for the Applicant:	Leo Grey
Solicitors for the Applicant:	Brydens Law Pty Ltd
Solicitors for the Respondent:	Lehmann Snell Lawyers