Harris and Comcare (Compensation)

[2018] AATA 3095

Harris and Comcare (Compensation) [2018] AATA 3095 (27 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3505

Re:Shane Harris

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:27 August 2018

Place:Canberra

The decision under review is affirmed.

.......................[sgd]........................

Mark Hyman, Member

Catchwords

COMPENSATION – school Business Manager – relations with new Principal - psychological condition – scope of the claim – whether contributed to, to a significant degree, by employment – whether contributing events were reasonable administrative action taken in a reasonable manner – whether direction to return to school fell within the scope of the claim – whether exacerbation of symptoms constituted an aggravation – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 71

Cases

Abrahams and Comcare [2006] FCA 1829

Australian Postal Corporation v Sellick [2008] FCA 236

Comcare vBromham [2017] FCA 174

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Mooi [1996] FCA 1587

Comcare v Muir [2016] FCA 346

Comcare v Power [2015] FCA 1502

Commonwealth Bank v Reeve [2012] FCAFC 21

Dean v Australian Postal Corporation [2010] FCA 680

Durham and TNT Australia [2011] AATA 802

Hart v Comcare [2005] FCAFC 16

Kennedy v Comcare [2014] FCA 82

Kirkpatrick v Commonwealth (1985) 62 ALR 533

State Transit Authority of NSW v Chemla [2007] NSWCA 249

Szabo v Comcare [2012] FCAFC 129

Wiegand v Comcare [2002] FCA 1464

REASONS FOR DECISION

Mark Hyman, Member

27 August 2018

1. This decision is about whether Mr Shane Harris, the applicant, should receive compensation for a psychological condition that he said began, or was precipitated by events occurring on, 3 June 2014. Mr Harris claimed compensation on 1 March 2016[1], and Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the condition in a determination dated 29 April 2016[2], on the basis that the precipitating events constituted reasonable administrative action taken in a reasonable manner. Mr Harris sought review of that decision, and on 26 May 2016 Comcare issued a reconsideration determination[3] affirming its initial decision, on the same basis. Mr Harris applied to this tribunal[4] for review of the reconsideration determination.

   [1] T3.1 folio 14.

   [2] T12 folio 99.

   [3] T18 folio 189.

   [4] T1 folio 1.

2. The tribunal held a hearing on 2 July 2018. Mr Harris is self-represented; he appeared at the hearing in person and gave evidence, supported by his daughter. Comcare was represented by Ms Sarah Wright of Counsel. Comcare called two of Mr Harris’s colleagues, Mr Bruce McCourt and Mr Paul van Campenhout, as witnesses, and Dr Frank Chow, a psychiatrist, as an expert witness. Mr McCourt and Mr van Campenhout appeared in person; Dr Chow gave evidence by telephone.

3. The documentary evidence before the tribunal comprised the documents submitted by Comcare (the “T-documents” and supplementary T-documents) under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act); documents submitted by Mr Harris’s employer, the ACT Education and Community Services Directorate (“the section 71 documents”), under section 71 of the (the SRC Act); written statements by Mr Harris, some made in response to statements by other witnesses (exhibits A1-A4); briefing letters to and reports obtained by Comcare from Dr Chow (Exhibits R3, R4 and R5); statements by Mr van Campenhout and Mr McCourt (Exhibits R7 and R8); supplementary papers relating to Mr Harris’s employment in the ACT (R2); papers recording Mr Harris’s medical history, obtained under summons from various providers (R1); and a bank statement from an account held by Mr Harris (R6).

   ISSUES

4. The issues before the tribunal are:

   ·the diagnosis of Mr Harris’s condition;

   ·whether Mr Harris’s condition was contributed to, to a significant degree, by his employment (and is therefore a disease under section 5B of the SRC Act);

   ·whether Mr Harris’s condition, if not a disease, is an injury (other than a disease) under paragraphs 5A(1)(b) or (c) of the SRC Act;

   ·whether his condition was the result of reasonable administrative action taken in a reasonable manner;

   ·the date of injury; and

   ·whether Comcare is liable to pay compensation to Mr Harris.

   LEGISLATIVE FRAMEWORK

5. The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. Section 5A of the Act defines an injury for the purposes of the Act, as follows:

   (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.

6. Section 5B reads as follows:

   (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.

1. Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

2. Section 14 of the SRC Act is the gateway provision for compensation. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later sections provide for various forms of compensation to be paid, for example section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.

3. It is apparent from sections 5A and 5B that the distinction between an injury (other than a disease) and a disease is important, as the nexus between a claimant’s condition and employment is different: the test for an injury (other than a disease) is that it arises out of or in the course of the person’s employment, whereas that for a disease is that it was contributed to, to a significant degree, by the person’s employment. It is also plain that the words “injury” and “disease” have technical meanings that require that in both cases the condition has already been found to be compensable (although the picture is complicated by the appearance of “injury” in both a technically defined sense (the chapeau of subsection 5A(1)) and a natural sense (in paragraph 5A(1)(b)). In the interests of simplicity and clarity I will refer in this decision to a disease yet to be tested against the criterion in subsection 5B(1) as an “ailment”.

   THE FACTS

4. Mr Harris was employed by the ACT Education and Training Directorate (the Directorate) as a Business Manager. This role is one that is attached to each school and the duties are administrative support for the school, especially with regard to management of the school’s finances, administrative staff, security, buildings, property and grounds[5]. The Business Manager is a member of the school’s executive team and acts as administrative officer to the School Board. Mr Harris joined the Directorate permanently in 1999[6] (he was employed on a casual basis for approximately the previous two years) and was promoted to the Business Manager role in 2008 (he acted as Business Manager at Kambah High School for six  months before moving to Calwell High School[7]). He worked in that position at Calwell until leaving in 2015 after incidents the subject of the present claim.

   [5] T15.1, folio 112.

   [6] Section 71 documents, folio 1.

   [7] T 17.1, folio 116.

5. In 2008 Mr Harris sought and received approval from the Directorate for a second job[8], as a cleaner. Throughout the period in question he worked four hours each weekday as a cleaner at another ACT school.

   [8] Section 71 documents, folio 7.

   A new principal

6. For much of the time covered by this decision the Principal at Calwell was Mr Peter Sollis. In 2013 a new Principal, Mr Bruce McCourt, came to the school. It is fair to say that while Mr Harris had a good working relationship with Mr Sollis, at no stage did he have a good working relationship with Mr McCourt.

7. It is part of Mr Harris’s case that Mr McCourt treated him poorly in a manner that was systematic and consistent over time. Mr Harris says that he and Mr Sollis worked well together, identifying priorities in improving the physical environment of the school (furniture, whiteboards, painting) and managing the relevant improvement programs within school resources[9]. Despite this, Mr Harris says he was sometimes frustrated in that his workload prevented him from being able to perform with the thoroughness he expected of himself or to perform at the standard he wished[10].  He and Mr McCourt were not able to work together as successfully. Mr Harris documented a list of issues on which he and Mr McCourt had not seen eye to eye. These included, in Mr Harris’s account[11]:

   ·explicitly or implicitly critical comments by Mr McCourt about the state of the school at the time of his arrival as its principal;

   ·implicitly disparaging comments by Mr McCourt about staff;

   ·Mr McCourt taking credit himself for Mr Harris’s work and ideas;

   ·Mr McCourt’s criticism of Mr Harris’s skill level;

   ·differences of view over payment of invoices and related financial issues;

   ·disagreement about the processes to be followed in some activities, such as travel;

   ·workload issues, including Mr Harris being given responsibility for the school’s participation in a copyright survey, taking responsibility for all his staff’s performance development plans (without delegation), taking on a school-based apprentice; and

   ·decisions taken by Mr McCourt without consultation while others taken by Mr Harris were challenged even where proper process had been followed.

   [9] T17.1, folios 117-18.

   [10] T3.3, folio 21.

   [11] T3.3 folios 21-24; T17.1 and attachments, folios 115-188.

8. Mr McCourt made a statement providing a response. According to his statement, it was apparent on his arrival that there were things at Calwell that had not been attended to, and some of these were Mr Harris’s responsibility; there were some deficiencies in Mr Harris’s performance that warranted action; there were certain matters that inevitably fell on Mr Harris’s shoulders and Mr McCourt expected him to manage his work accordingly; and in other matters Mr Harris had misunderstood or misrepresented his (Mr McCourt’s) actions.

   The mobile phone incident of 3-4 June 2014

9. Two particular incidents stand out as highlights in Mr Harris’s account of how his condition arose. The first occurred on the first few days of June 2014. Mr Harris was responsible for the school’s mobile phones. One of these phones had been in the care of a teacher who had left the school. It appears that when it came time to leave the school she had left the phone in a drawer in a staff room. This occurred in perhaps 2012. Mr Harris in early 2013 had attempted to find the phone without success, and having rung it and being put through to voicemail, decided the battery was flat and asked staff to keep an eye out for it.

10. In early June 2014 Mr Harris realised that the mobile phone bill for the school was significantly higher than it should be, by about $1,000 (at his initial estimate). He found that the additional amount was attributable to the lost phone, rang it and spoke briefly to a person with a strong foreign accent and poor English. (Mr Harris recounts this[12] as having occurred on 2 June 2014, but taking into account other events and their sequence, it is clear that it took place on 3 June. Nothing turns on the difference.) On the same day Mr Harris reported the loss of the phone and the high phone bill to Mr McCourt. Apparently the previous phone bill had also been elevated, but it had been paid without comment. Mr Harris cancelled the phone contract and told Mr McCourt in the afternoon; Mr McCourt said that they would have a meeting the following day.

    [12] T3.3 folios 24-5; T17 folios 127-8.

11. The next morning (4 June) Mr Harris approached Mr McCourt early regarding the loss of the mobile phone from the school and the discovery of the bill. Mr McCourt would not discuss the matter at the time (apparently 7.15 am) and called a meeting for about midday. He also said that he would need to speak with the Directorate about the employment aspects. The Deputy Principal, Mr van Campenhout, also attended the midday meeting, and he prepared minutes. Those minutes[13] record the sequence of events; note Mr McCourt’s statement that it would have been appropriate for Mr Harris to have told him when the absence of the phone was discovered in May 2013; and note that because that had not occurred there had been no action and no cancellation of the contract. The bill was recorded as about $2,600, although that was for all the school’s mobile phones (three, including the missing phone). The minutes also record Mr McCourt’s concern that the matter reflected adversely on Mr Harris’s performance, as follows:

    [13] T8.6, folios 59-60.

    ·Debt over the phone at the discretion of the Director with Bruce’s [Mr McCourt’s] input.

    ·Work performance – this highlights a problem. BM [Bruce McCourt] asked for advice from workforce management.

    ·Redo the work performance plan. 5 Areas:

    oSchool maintenance

    oFinancial Management

    oStaff supervision

    oAdherence to WH&S protocols

    oTransparency of communication to Principal

    ·Discussion around communication. Shane [Mr Harris] gave no thought to it until Beck asked.

    ·This situation could have been avoided with better communication between Bruce and Shane. Needed to be addressed much earlier.

    ·Need to have trust in the working relationship. Shane – this is the exception. It seemed trivial – in hindsight this was wrong. Shane apologised for this oversight.

    ·SH [Shane Harris] – prided himself on his ability to communicate. Let himself down in this situation.

    ·BM – the identified areas are all targeted to show performance. We take the management of the school very seriously.

    ·Discussion around responsibility and how that is shared between the leadership team.

    ·This situation has raised very broad issues. We are not at performance management plan stage yet, but this is the step before it.

    ·Actions for Shane:

    oDetailed reports on the phone. Signed report to send into the Directorate.

    oRedevelop personal development plan on Tuesday.

    oComplete tasks on a more timely manner [sic].

12. Mr Harris was sent these minutes, although there is no record that he approved them, and he says that he did not. Both Mr McCourt and Mr van Campenhout[14] say that he gave oral approval of the minutes as accurate. Mr Harris identified[15] elements missing from the minutes as two statements which he said were made by Mr McCourt at the meeting: that he no longer trusted Mr Harris and wondered what else he was hiding from him; and that whether Mr Harris would have to repay the money lost was at his (Mr McCourt’s) discretion, and he had not yet decided what to do (these assertions are explicitly denied[16] by Mr van Campenhout and Mr McCourt). Mr Harris stated that at the meeting it was he who had said that the decision about paying the bill was the Director’s with the Principal’s input, as it was he who had obtained guidance on that issue from the Directorate.

    [14] Exhibits R9, R8.

    [15] T3.3, folio m25.

    [16] Exhibits R8, R9.

13. Following these events Mr Harris says[17] that he was very upset, was in tears and considered resigning. That he was upset was evident to his colleagues, who over the next week asked him what was wrong. He says that he also contacted the Directorate’s counselling service for staff, Davidson Trahaire and attended a counselling session[18]. In emails sent around this time he apologised[19] to a union contact, Ms Katherine Routh, for a “rant” (evidently made by telephone) and subsequently voiced a fear to her that Mr McCourt had his job “in his sights”, saying further that he did not feel supported in his work[20].

    [17] T3.3, folio 25.

    [18] Ibid.

    [19] T17.21, folio 177.

    [20] T17.22, folios 180-1.

14. In August 2014 Mr Harris became aware of a temporary position as Business Manager at Hawker College, where Mr Sollis was now Principal. Mr Harris applied for the position and was successful. Mr McCourt agreed to his taking up the role. At the end of the period at Hawker Mr Harris applied for and was granted leave (annual and long service)[21]. This took him through to 19 January 2015, the date on which he was to resume duty at Calwell.

    [21] T3.3, folio 26.

15. Over the period from August to the end of 2014 Mr Harris said that he had some interaction with Ms Dianne McMillan, who was nominated to take over his duties as relieving Business Manager at Calwell during his absence[22].

    [22] T3.3, folios 25-6.

    The events of January 2015

16. The second significant event occurred about six months later, when after his absence at Hawker College and subsequently on leave Mr Harris returned to Calwell, towards the end of the school holidays. He saw the Deputy Principal, Mr van Campenhout, and they had a discussion. Mr Harris stated[23] that in the course of that discussion Mr van Campenhout said:

    Bruce has plans and it would be in your best interest if you could find other employment, it would be helpful for the school if you could do this sooner rather than later, we would be happy, let me rephrase that, I would be happy to help in any way I can.

    [23] T3.3, folio 26.

17. Shortly afterwards, Mr Harris left the school. He did not subsequently return to Calwell. He also said that he had some minimal interaction with Mr McCourt during the few days he was at Calwell at that time.

1. Mr McCourt and Mr van Campenhout dispute Mr Harris’s version of these events. Mr McCourt says that there was no interaction whatsoever with him because he was away on leave during the four days Mr Harris was at the school (which he identifies as 19-22 January 2015)[24]. Mr van Campenhout said[25] that the discussion that took place included the following:

   ·a discussion about Mr Harris’s hobbies and interests;

   ·a statement by Mr Harris that Calwell was not a priority for him;

   ·a statement by Mr van Campenhout that the school would benefit from knowing Mr Harris’s plans, in light of his previous absences; that this would be of benefit to Ms McMillan, who had been relieving for him; and that Mr McCourt also wished to know what he had in mind;

   ·an offer of support by Mr van Campenhout to help Mr Harris with job applications, his curriculum vitae and the like.

   Mr van Campenhout expressly denied having suggested that Mr McCourt “had plans” for Mr Harris[26].

   [24] T8, folio 45.

   [25] T8.8, folio 64.

   [26] T8.8, folio 64 and Exhibit R8.

2. Mr Harris states that the above events led to his breaking down and needing to leave the workplace, and says that at this time “I reached out for help to the Directorate and medical practitioners” and that he took leave[27]. The records confirm that it was at this time that Mr Harris first sought medical attention with respect to the effects of the incidents described above.

   [27] Exhibit A1.

   Medical evidence – psychiatric condition

3. Mr Harris saw Dr Balaji Pillalamarry, a general practitioner, on 27 January 2015. The note of that consultation[28] records that Mr Harris was teary, not able to go back to work after six months away “due to issues with Principal at school”, and that he had seen the Employee Assistance Program. About a week later, on 2 February 2015, the same doctor notes that he was still extremely stressed, “particularly work related” and that even just seeing emails from work made him stressed, so much so that he had panic attacks before he could read them. On 10 February 2015 Mr Harris saw another general practitioner, Dr David Sutherland, who noted[29] “more emotional than usual”, “easily stressed and very anxious about thought of return to work”, “almost panic reaction to bosses name” [sic]. On 6 February Mr Harris completed a referral form for a mental health plan[30] and Dr Sutherland added the same information as that noted immediately above. A record for 13 March 2015[31] notes that because of depression Dr Sutherland had prescribed an anti-depressant, Efexor. A record for 14 April 2015 notes that Efexor was causing agitation, and that Dr Sutherland had referred Mr Harris to a psychiatrist.

   [28] T19, folio207.

   [29] T19, folio 206.

   [30] ST3, folio 7.

   [31] T19, folio205.

4. An occupational therapist, Ms Vicki McWhirter, saw Mr Harris on 22 April 2015. In a report to Dr Sutherland dated 28 April[32] she noted Mr Harris’s ongoing symptoms of anxiety: “an inability to go places without distress and is frequently teary”. She noted that Mr Harris wanted to return to his workplace and could move to a different school. Ms McWhirter suggested a trial of a different anti-anxiety/antidepressant drug and recommended a telepsychiatry service that (evidently) bulk-billed its services. She noted that Mr Harris had already had four sessions with a psychologist, Ms June Staunton.

   [32] ST7, folio 22.

5. Dr Sutherland wrote a referral to the telepsychiatry service, the Lawson Clinic, on 26 May 2015[33]. He noted Mr Harris’s symptoms, that he had trialled Efexor and Zoloft “to minimal effect”, that Zoloft had caused palpitations, and that he had stopped any of these medications. Dr Ann Joseph, a psychiatrist at the Clinic, evidently saw Mr Harris (by Skype), and she recommended that he take quetiapine[34]. At her direction, the Clinic undertook a number of tests, including a “Mood Assessment Program” Report[35] dated 5 June 2015, which found that Mr Harris was probably suffering from melancholic depression according to the algorithm used (although it was noted that a false positive result of this type can occur when a patient has either high levels of anxiety or a chronic non-melancholic depression), and that he was severely depressed, had severely impaired functioning and had been suffering from depression for a year. Apparently Mr Harris had at most a short-lived contact with the clinic, as Dr Joseph discharged him on 15 December 2015, having not seen him since May.

   [33] ST8, folio 23.

   [34] ST9, folio 25.

   [35] ST10, folio 35.

6. In August 2015 the ACT Government sent Mr Harris to be examined by Dr Sharon Reutens, a psychiatrist, to determine if he was fit to return to work. Dr Reutens took a detailed history that covered the events at Calwell and in a report dated 24 August 2015 diagnosed major depressive disorder, with differential diagnosis of adjustment disorder with mixed anxiety and depressed mood (using DSM-5 diagnostic criteria)[36]. Mr Harris also reported cognitive symptoms and fatigue. Dr Reutens was not sure if these were associated with his psychiatric condition and declined to offer a clear prognosis until they had been investigated. She also noted that Mr Harris was reluctant to return to Calwell and that a return there might exacerbate his psychological condition, but took the view that he could undertake a graduated return to work at some other site.

   [36] Section 71 documents, folio 43.

7. Mr Harris completed an “Adult Psychprofiler” report form[37] on 21 September 2015. It is not clear who ordered the report. It is apparently an assessment based on a self-reporting process. It found that Mr Harris’s conditions included generalised anxiety disorder, panic disorder, post-traumatic stress disorder, specific phobia, dysthymic disorder, major depressive disorder, and Asperger’s disorder.

   [37] ST17, folio 63.

8. On 29 January 2016 Dr Sutherland wrote[38] to Ms Cathy Crook of Human Resources in the Directorate, saying that it would be “counterproductive for Mr Harris to return to his previous work site”.

   [38] ST22, folio 86.

9. Mr Harris lodged a claim for compensation on 2 March 2016, accompanied by a statement setting out the circumstances of his claim[39].

   [39] T3.1, folios 14-19; T3.3 folios 21-26.

10. In April 2016 Comcare sent Mr Harris to Dr Antonella Ventura, a forensic consultant psychiatrist. Dr Ventura’s report[40], dated 8 April 2016, recounted a history and diagnosed “major depressive disorder with some melancholic and possible psychotic features”. She noted that he had not significantly improved in his mental state and attributed that to a lack of appropriate treatment and his having been asked to return to his previous workplace. Dr Ventura’s history included information about Mr Harris’s alcohol and drug use, as well as an earlier bout of acute pancreatitis, but she saw no evidence of factors outside the workplace contributing to his psychiatric condition. She believed that he was unfit to return to work and should not be made to return to Calwell.

    [40] T10, folio 81.

11. At about the same time Comcare sent Mr Harris to another psychiatrist, Dr Frank Chow. Dr Chow submitted a report[41] dated 21 April 2016. Dr Chow diagnosed adjustment disorder with anxiety, first arising from the events of 3 June 2014. Mr Harris had developed a fear of returning to Calwell and having to interact once again with Mr McCourt. He could return to work successfully provided either mediation between Mr McCourt and Mr Harris was undertaken, or alternatively if he returned in a different workplace and with a different Principal.

    [41] T11, folio 88.

12. Comcare sought supplementary reports from Dr Chow in April 2017, June 2017 and again in 2018. In a supplementary report[42] dated 13 April 2017 Dr Chow said that Mr Harris’s condition was outside the boundaries of normal mental functioning and behaviour; that the condition became clinically significant after the events of 3 June 2014; that he became incapacitated for work in early 2015, after his return to Calwell; that it was the relationship between Mr Harris and Mr McCourt that was the source of Mr Harris’s problems; that factors outside employment did not contribute significantly to Mr Harris’s psychiatric condition; and that the psychological effects of employment had resolved by the time of the consultation. In a further supplementary report[43] of 1 June 2017 Dr Chow stated that without the meeting of 4 June 2014 (in relation to the mobile phone) Mr Harris’s condition would not have arisen.

    [42] Exhibit R3.

    [43] Exhibit R4.

13. In another supplementary report[44] dated 16 June 2018 Dr Chow said that Mr Harris’s psychiatric condition arose in June 2014 but reached clinical significance only in early 2015. Dr Chow also referred to the potential influence of Mr Harris’s history of alcohol abuse on his work and on his psychiatric condition after January 2015.

    [44] Exhibit R5.

14. The documentary record includes a number of references to the worsening of Mr Harris’s symptoms following a directive he apparently received in December 2015 or January 2016 to return to Calwell. These include a reference by Dr Sutherland in a letter of 8 March 2016 to a Comcare delegate[45]; Dr Ventura’s report[46]; and Dr Chow’s first report[47].

    [45] T7, folio 36.

    [46] T10, folio 83.

    [47] T11, folio 93.

    Medical evidence – other matters

15. Mr Harris has had an issue with alcohol for many years. A report[48] dated 19 June 2015 by Dr Musa Drini, a gastroenterologist, notes Mr Harris’s known record of heavy drinking and reports that in the previous six months at least he had been binge drinking. He had also been smoking marijuana. Reported symptoms (apparently the reason for the referral to Dr Drini) were epigastric pain (both mild chronic and occasional severe acute pain), weight loss and episodic diarrhoea. In 2009 Mr Harris suffered an acute pancreatitis attack[49] and most of his doctors seem to assume it was alcohol-related. A record dated 5 August 2009 from the gastroenterology and hepatology unit at Canberra Hospital[50] notes his presentation at that time with acute severe abdominal pain, diagnosed, with the help of imaging, as acute pancreatitis. The history taken at that time notes a 25-year history of heavy alcohol consumption, with intermittent binge drinking. The current alcohol intake at that time was recorded as 2-3 beers per day with more in “little binges” on weekends. A further report dated 11 September 2009[51] also noted the recent episode of acute pancreatitis and expanded on the complications associated with alcohol abuse.

    [48] ST11, folio 47.

    [49] Material obtained under summons, record by Ms V McWhirter dated 22 April 2015.

    [50] Material obtained under summons, record by Dr Graham Kaye, a gastroenterologist.

    [51] Material obtained under summons, record by Dr Narci Teoh, a gastroenterologist.

16. In oral evidence Ms Wright pressed Mr Harris on his alcohol and drug use. Mr Harris acknowledged that he drank every day and had a long history of alcohol intake. Over many years he would drink especially heavily on Friday and Saturday nights. Mr Harris denied that this drinking ever led to problems at his work. He said the only time he was ever affected by alcohol at work was at a Christmas party. From 2005 or thereabouts he lived in Braidwood. As he was working two jobs, with four hours cleaning at the end of each school day, he was getting up each morning at 5.30 am, driving to Canberra and returning at 10.30 pm. There was only time for perhaps one beer before he went to bed. The pancreatitis attack, which lasted perhaps four to six weeks, was the result of binge drinking on a Friday and Saturday night.

17. Mr Harris also complained in 2015 of fatigue and cognitive symptoms. These appear especially in the report of Dr Reutens, who was unable to determine if they were associated with his psychological condition or not. The symptoms included a “fuzzy head”; a distorted sense of taste; and a form of synaesthesia in which he heard music in loud noises such as jackhammer sounds. He was sometimes unable to distinguish between feeling hot and feeling cold. Dr Reutens made no diagnosis, but Dr Sutherland referred Mr Harris to a neurologist, Dr Ram Malhotra.

18. Mr Harris saw Dr Malhotra, who provided reports dated 6 and 20 August 2015. Dr Malhotra, who had the benefit of EEG and MRI imaging, found no neurological abnormalities (although he noted some changes of chronic small vessel disease in the brain).

    Other matters

19. Mr Harris separated from his partner in late 2014. He said that the separation was amicable and that they remained living together under one roof.

    Graduated return to work

20. During the period after January 2015 and up to lodging his claim in March 2016 Mr Harris said that he attempted to get assistance from the Directorate in making a graduated return to work. Following the events of January 2015 Mr Harris took leave, obtaining certificates from his doctors for extended periods during 2015 and into 2016[52]. On 29 April 2015 he submitted an “accident/incident report” (AIR)[53], a completed pro forma reporting a workplace incident. Mr Harris gave the date of the incident as 1 May 2014 and described it as having arisen from the events involving the mobile phone. He reported it as follows:

    Supervisor refused to discuss the following morning but held meeting some 5 hours later which, to me, took the form of a punitive meeting during which the supervisor spoke of trust issues and precursor to Performance Management.

    Several comments made to supervisor stating state of distress being experienced along with an email stating the same, no response to email, little to no response from verbal interactions.

    Very little advice on offer to assist me with dealing with the issue and no support, other than offers from office and teaching staff who could obviously see my level of distress but were unfortunately not holding positions to be of assistance.

    [52] ST33, folios 264-283.

    [53] Section 71 documents, folio 9.

21. In the weeks that followed a number of responses were made to the AIR, including an email dated 30 April 2015 from Mr McCourt to Ms Sheryl Girdler of Health, Safety and Wellbeing in the Directorate[54] and a fitness for duty assessment dated 10 June 2015[55]. Mr McCourt also completed the parts of the AIR left for the supervisor. In all these documents Mr McCourt explained and justified his dealings with Mr Harris in general and in the particular events of 3-4 June 2014 and January 2015.

    [54] Section 71 documents, folio 14.

    [55] Section 71 documents, folio18.

22. It appears that from about June 2015 the Directorate began the process of considering how Mr Harris might be reintegrated into the workforce. A file note recording “employee triage contact” dated 17 June 2016, completed by Case Manager Ms Meg Presgrave, records a conversation with Mr Harris (presumably by telephone). At that stage Mr Harris was continuing his second job as a cleaner, but noted that he was very inhibited in dealing with other people, avoiding social contact, and that his problems stemmed from his relationship with Mr McCourt. Ms Presgrave undertook to contact Mr McCourt and to arrange a fitness for duty assessment of Mr Harris with a medico-legal practitioner, and recorded that Mr Harris accepted that approach. The file note mentions several times Mr Harris’s particular problems with Mr McCourt, but also notes that the Human Resources function in the Directorate “are not able to assist in allocating IW [sic: injured worker] with another Business Manager role at another school unless he applies through the normal selection processes”.

23. A file note[56] by Ms Girdler, dated 15 July 2015 records a conversation with Mr Harris’s “RCM”, presumably rehabilitation case manager (and perhaps Ms Presgrave). The two agreed that an initial discussion should be undertaken between Mr McCourt, Mr Harris and Human Resources, provided Mr Harris’s psychologist and/or general practitioner thought him fit to return to work, especially as Mr Harris was saying he was ready to return to work as long as it was not at Calwell. A further file note by Ms Presgrave records a conversation she had with Mr McCourt, who maintained his position as before: Mr Harris’s performance in his view had been substandard and he would need some form of performance management. It is quoted that Mr McCourt said, at one point “I have difficulty trusting him and his integrity”.

    [56] Section 71 documents, folio 25.

24. Over the subsequent months Dr Reutens reviewed Mr Harris to assess his fitness to return to work, and recommended that he return to work at a site other than Calwell, as noted above. On 27 October 2015[57] he took up duty at Melba-Copland secondary school, on reduced hours and duties initially, although shortly afterwards (from 9 November) he shifted to normal hours (but still reduced duties). The role was in accordance with the suggestion of Dr Reutens. He also began applying for Business Manager positions elsewhere, initially at Belconnen High School[58] (that application was unsuccessful). It was during this period that Mr Harris developed a number of physical symptoms that led to further investigations, although no physical illness (beyond possible chronic pancreatitis) appears to have been identified. A constant element in the various exchanges Mr Harris had with the Directorate over this period is his determination not to return to Calwell.

    [57] Section 71 documents, folio 102.

    [58] Section 71 documents, folios 39, 42, 53, 55, 57, 59, 62, 71, 75.

25. During this period Mr Harris appears to have been on leave from his substantive workplace at Calwell. The Business Manager role had been occupied by Ms McMillan. On 5 February 2016 Mr Harris sent a message to Mr McCourt seeking further leave and attaching medical certificates[59]. By this time Mr Harris had been absent from Calwell for just over a year, and for about 18 months if his absence at Hawker and subsequent leave is taken into account and if the four days of his return to Calwell in late January 2015 are disregarded. Mr McCourt replied on the same day asking Mr Harris “to clarify your intentions regarding your employment”, noting that he had accommodated Mr Harris and suggesting that the time had come to give more serious consideration to the needs of the school. He noted that Ms McMillan no longer wished to act as Business Manager. In subsequent email correspondence with his case managers, Mr Harris referred to a “directive” to return to Calwell[60]; he went on to say that he had developed an “irrational fear” of Mr McCourt, and could not even drive past a signpost to the Canberra suburb of Bruce (Mr McCourt’s forename) without a physical reaction.

    [59] Section 71 documents, folios 86-8.

    [60] Section 71 documents, folio 89.

26. In a submission made before the hearing[61] Mr Harris stated that Ms Cathy Crook, a delegate within the Human Resources function in the Directorate, had directed him to return to Calwell during January 2016. Mr Harris says that there was an email to that effect, although none appears in the evidence. He also refers to a meeting with Ms Crook and with his then case manager, Ms Michelle Purcell, which appears to have occurred on 17 February 2016. The record of that meeting comprises handwritten notes by Ms Purcell[62] and a brief record by Ms Crook dated 20 February 2016. Ms Purcell’s handwritten notes are brief and cryptic, noting Mr Harris’s sensitivity to Calwell and Mr McCourt and some of the events at Mr McCourt’s arrival at Calwell, but offering little information beyond that. Ms Crook’s notes focus on Mr Harris’s state of mind (they are in the second person – “you described…; you acknowledged…”) but do not mention a directive to return to Calwell. Mr Harris’s evidence is that at the meeting Ms Crook “made it very clear that my only option of employment was my substantive position”[63]. He had difficulty in extracting a record of the meeting, and did not consider Ms Crook’s record of the meeting to be accurate.

    [61] Exhibit A1.

    [62] Section 17 documents, folio 94.

    [63] Exhibit A2.

1. The above events appear to have prompted Mr Harris to lodge a claim for compensation, which he did on 2 March 2016[64]. At this time Mr Harris had legal representation.

   [64] T3, T3.1, folios 12, 14.

2. Following lodgement of the claim Comcare sent Mr Harris to see Dr Ventura and Dr Chow, whose reports are outlined above. In respect of his attempts to return to work, Dr Ventura said that Mr Harris was not fit to return to pre-injury duties and hours; that he could work for two hours a day at mechanical-type tasks; that he was not fit to interact with other workers or the public; and that he was not stable enough for her to comment on his longer-term return to his previous work. Dr Chow said that Mr Harris had developed a fear of his original workplace and of Mr McCourt; that mediation between him and Mr McCourt was essential if he was to return to Calwell; that he was unwilling to engage in mediation; and that a position in a different school “might be more appropriate”.

3. Following lodgement of his claim, and the medical assessments that followed, it appears that the Directorate decided that sending Mr Harris back to Calwell was no longer an option. A new graduated return to work program was developed, and Mr Harris successfully took up work for a gradually increased number of hours from about July 2016 at Southern Cross Early Childhood School. Later in the year some personal problems intervened in the process, but those are not relevant to the matters I have to decide and lie in any case outside the scope of this decision.

   THE ARGUMENTS OF THE PARTIES

4. Mr Harris is a self-represented applicant without legal training. As is to be expected, he did not present his case in the organised manner usual with a legally trained representative. As a result, I have sought in the documents he provided, and in his oral argument, the parameters of a case, based on the matters required to be established if compensation is to be paid under the SRC Act.

5. Mr Harris argues that he was treated unreasonably from the start by Mr McCourt. He says that he was a strong, confident, capable Business Manager for Calwell School, able to handle stress and the demands of work, until Mr McCourt’s arrival. He says that Mr McCourt kept unreasonable pressures on him in terms of workload, while at the same time belittling him, showing him no respect or recognition, withholding information and documentation and denying him the support, assistance and advice he needed to be able to fulfil his role. As a result he ended up dreading going to work, hating the school, and found himself fearful and lacking in confidence.

6. When the event with the mobile phone occurred it triggered a strong reaction. This was the first time he had ever ended up in tears at his work. In lodging a claim he had been obliged to nominate a specific date and so he had chosen the date of the meeting about the mobile phone, but events had begun much earlier. He had made an attempt to continue working, and when he had been able to work at Hawker College and then take leave things had improved. The conversation with Mr van Campenhout in January 2015 had triggered a strong reaction and he had then sought medical help. He had also sought the Directorate’s help in allowing him to take up the work to which he knew he was suited at a school where the same problems would not confront him, but there had been no cooperation from the Directorate, which had refused to help him out or manage a return to work in a way that aligned with the advice of his doctors.

7. In summary:

   ·Mr Harris had been a successful school Business Manager until Mr McCourt’s arrival at Calwell;

   ·Mr McCourt had treated him unreasonably over an extended period, in the process robbing him of confidence;

   ·The events of 3-4 June 2014 and January 2015 had been triggers for a psychological condition that had been developing over a longer period and reached clinical significance (or at least reached a point at which he had first sought medical attention) in January 2015;

   ·The refusal of the Directorate to provide a suitable graduated return to work program, and the Directorate’s determination to send him back to Calwell, had caused his condition to worsen, or at least had prevented it from improving;

   ·The condition was a disease under the SRC Act; the disease was outside the boundaries of normal mental functioning and behaviour; and it was contributed to, to a significant degree, by Mr Harris’s employment;

   ·Compensation is not excluded under subsection 5A(1) because Mr McCourt’s treatment of Mr Harris was not reasonable administrative action, nor was it action taken in a reasonable manner; and

   ·Compensation should be paid.

8. Ms Wright, for Comcare, argued that:

   ·Mr Harris did not suffer an ailment, because he did not undertake any action to obtain medical help until late January 2015 and did not submit an injury report until April 2015;

   ·In the alternative, employment did not make a significant contribution to his condition, because other factors, which Mr Harris failed to disclose to his expert examiners, especially his abuse of alcohol over many years and during critical periods in the present matter, and his longstanding use of cannabis, make it doubtful that the condition can be regarded as employment-related (applying subsection 5B(2) of the SRC Act);

   ·In the alternative, the critical action taken by Mr McCourt on 3-4 June 2014 was an administrative action under subsection 5A(2), it was reasonable for Mr McCourt to take it and it was taken in a reasonable manner; and therefore

   ·Mr Harris is not entitled to compensation.

   CONSIDERATION

   What was the diagnosis of Mr Harris’s psychiatric condition?

9. A number of expert psychiatrists saw Mr Harris. None of them took the view that he was well psychologically, and all diagnosed a psychiatric condition. Dr Reutens diagnosed major depressive disorder, with differential diagnosis of adjustment disorder with mixed anxiety and depressed mood; Dr Ventura diagnosed major depressive disorder with some melancholic and possible psychotic features; and Dr Chow diagnosed adjustment disorder with anxiety. All three therefore diagnosed a real and significant psychiatric disorder. Dr Chow stated, in response to Comcare’s question, that Mr Harris’s psychiatric state was outside the boundaries of normal mental functioning behaviour. From Dr Ventura’s report it seems very probable that she too would have reached that conclusion if asked (“Mr Harris currently has reduced work capacity of approximately two hours per day”; “he is not currently fit to interact with other workers or with the public”).

10. Comcare argues that Mr Harris did not actually suffer from an ailment, as he did not seek medical help until late January 2015, and did not lodge an accident/incident report until April 2015, and a claim for compensation until March 2016. He continued his work at Calwell until Term 3 of 2014 and for that term worked, apparently without problem, at Hawker College before taking leave for Term 4. Meanwhile he was managing to work in his second job as a cleaner for four hours each day without problem. The only medical evidence regarding him during the second half of 2014 is a single consultation with his general practitioner on 21 June 2014, for epigastric pain with no mention of psychiatric symptoms. Mr Harris took no sick leave over this period.

11. Mr Harris argued that although he managed to continue working during much of the second half of 2014, this did not mean he was not suffering from a psychological condition. He spent a long time denying his mental health issues. The reality was that his condition, which, if things had been managed properly could have been avoided, had transformed him from a strong, capable, confident worker into a person who was weak, old and tired and may never fully recover.

12. The phrase used by Comcare in setting the question for Dr Chow, that is, “outside the boundaries of normal mental functioning and behaviour” is taken from the judgment of Drummond J in Comcare v Mooi [1996] FCA 1587 (Mooi). The phrase (at [12]) establishes a threshold for the kind of mental condition that can be regarded as an injury sufficient, where other criteria are met, to attract compensation under subsection 14(1) of the SRC Act. In this case I am in no doubt that Mr Harris suffered from a psychiatric condition, one that took him outside the boundaries of normal mental functioning. That is the view that the medical profession came to, unanimously, and their diagnoses also imply or state that the condition met the threshold test set in Mooi. There is, plainly, a question regarding when this condition reached that threshold, which I return to below, but to my mind there is no question that it did so. I find that Mr Harris suffered an ailment, being in his case a psychological ailment, under the SRC Act.

13. The diagnosis of the condition among the three psychiatrists referred to above varied significantly. That potentially makes determining causation more difficult, but all three diagnoses in my view meet the Mooi threshold, and I do not need to determine if one of them is the correct diagnosis. Psychiatric conditions are notoriously difficult to distinguish and it is by no means unusual for psychiatrists to disagree about a diagnosis.

    Was Mr Harris’s ailment contributed to, to a significant degree, by his employment?

14. There are four relevant aspects Mr Harris’s employment at Calwell, each of them potentially contributing to his ailment. These are:

    a)his relations with Mr McCourt over the period from the latter’s arrival in Term 2 of 2013 up to the time of the mobile phone incident;

    b)the mobile phone incident itself;

    c)the incident of late January 2015; and

    d)the directive to return to Calwell, issued by the Directorate in January 2016 (or possibly December 2015).

15. Although Mr Harris’s claim form nominates the date of injury as 3 June 2014 at 7.30 am (subsequently acknowledged as in error for 4 June), and much of the discussion in the original Comcare determination[65] and also in the redetermination decision[66] relates to the mobile phone incident on 3-4 June 2014, it is clear from Mr Harris’s request for reconsideration that his case extends to the general circumstances leading up to and occurring around that time. These are not explicitly considered in much detail in the original determination, but are referred to in the redetermination decision. That decision is based on the exclusion for reasonable administrative action in subsection 5A(1) of the SRC Act; for the exclusion to apply it is necessary only that the reasonable administrative action contribute in part to the condition, applying the doctrine from Hart v Comcare [2005] FCAFC 16. It may therefore not have been necessary for the decision-maker to canvas the full range of circumstances arising in the matter. Nevertheless, the events leading up to and coincident with the mobile phone incident were raised by Mr Harris in his supporting statement at the time of lodging his claim[67], were prominent in his statement of reasons for requesting redetermination[68], and have been included in the history he has given to his doctors. They are within the scope of the claim (see Abrahams and Comcare [2006] FCA 1829; Comcare v Muir [2016] FCA 346; Szabo v Comcare [2012] FCAFC 129; Durham and TNT Australia [2011] AATA 802; Kennedy v Comcare [2014] FCA 82; Australian Postal Corporation v Sellick [2008] FCA 236; Comcare vBromham [2017] FCA 174).

    [65] T12, folio 100.

    [66] T18, folio 190.

    [67] T3.3, folio 21.

    [68] T17.1, folio 116.

16. When considering causation in Mr Harris’s case, the question of how he perceived the critical events assumes some importance. Mr McCourt and Mr van Campenhout say that in the mobile phone meeting there was no threat that Mr McCourt would be deciding whether Mr Harris would have to pay the debt – that was always for the Directorate, with Mr McCourt’s input; Mr Harris heard otherwise. In the discussion of January 2015 Mr Harris heard that Mr McCourt had plans for him and wanted him gone; Mr van Campenhout says that he had merely asked Mr Harris what his plans for the future were, as the school needed to know. Although there is an element of “word against word” in this, it certainly seems possible that in his perhaps frail and besieged mental state Mr Harris heard things other than in their actual terms. The question then arises whether these events can have “contributed to, to a material degree” to his mental state.

17. In State Transit Authority of NSW v Chemla [2007] NSWCA 249 (Chemla) Spigelman CJ came to the conclusion that “a ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’” (at [53]-[54]). Although the causative test is different from that in section 5B of the SRC Act, the reasoning applies equally. That case also deals with the “eggshell psyche” concept, and reinforces the conclusion that a heightened susceptibility of an employee to psychological injury does not allow an employer to escape liability. In Wiegand v Comcare [2002] FCA 1464 (Wiegand) von Doussa J addressed at [31] a similar question to that in Chemla:

    ... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.

18. The issue is also the focus of Perram J in Dean v Australian Postal Corporation [2010] FCA 680, where his Honour noted that the implication of the remarks of von Doussa J in Wiegand is that a three part test is to be applied in such cases. In the present case the test would run as follows: whether the workplace incidents occurred; whether the incidents created a perception in Mr Harris’s mind; and whether that perception (or those perceptions) contributed, to a significant degree, to Mr Harris’s ailment.

19. There is no doubt that various of the incidents happened: there are competing accounts of the various charges that Mr Harris has levelled against Mr McCourt regarding his conduct and management in a general sense, one by Mr Harris and one by Mr McCourt. Similarly, there are minutes of the mobile phone meeting and competing accounts of the events leading up to it. And there are also competing accounts of the discussion of late January 2015 between Mr Harris and Mr van Campenhout (Ms Wright challenges Mr Harris’s account of this meeting, and I return to that issue below). The directive to return to Calwell is a little less certain: Mr Harris refers to it several times, and no denial has been made by the Directorate, but there is no email record, and the directive is supposed to have been originally issued by telephone. It is, however, recognised in some other documentation, for example Comcare’s letter to Dr Ventura asking her to examine Mr Harris[69] (a separate question arises whether this event is within the scope of the claim; I return to that issue below). I find that all four of the aspects earlier identified as potentially contributing to Mr Harris’s ailment did occur.

    [69] Section 71 documents, folio 110.

20. There seems no doubt that these created a perception in Mr Harris’s mind. All the reports of the psychiatrists and numerous materials generated by Mr Harris, at the time and subsequently, reflect back on these incidents, and I find accordingly.

21. All the medical reports suggest that the cause of Mr Harris’s psychiatric condition was his employment at Calwell. Mr Harris’s account certainly encourages that conclusion, as he consistently said so in essentially identical terms at each consultation. Drs Reutens, Ventura and Chow also said so. Comcare took no issue with that conclusion in either the initial determination or the reconsideration determination. But Ms Wright, with the benefit of the material summoned from a wider range of sources, suggests that Mr Harris understated his use of alcohol and cannabis to the expert medico-legal examiners. Further, in the period of his leave leading up to January 2015 he had the opportunity of binge drinking which he did not have previously on weekdays, since on those days he was working about 12 hours each day and driving to and from Braidwood.

22. In Comcare v Power [2015] FCA 1502 at [73-95] Katzmann J noted that the test of causation set in section 5B of the SRC Act requires a close causal connection between employment and the potentially compensable condition, and suggests too the need for specific consideration of the matters enumerated in subsection 5B(2). Turning then to those considerations:

    a)The duration of employment – Mr Harris had been employed by the Directorate for about 17 years in 2014, for about eight years as a Business Manager, and about seven of those years as Business Manager at Calwell. That was sufficient time for him to be well aware of the demands of the role and of the range of tasks and duties that he was expected to perform. It is perhaps a limitation that he had a single Principal for the period between 2008 and 2013 (and thus little experience of different management styles).

    b)Nature of employment tasks – Mr Harris’s duties were broad and varied, and involved frequent direction, it appears, from the Principal. In particular, the Business Manager worked close with the Principal and Deputy Principal in managing the school. A breakdown in the relationship between two of that group would appear to have brought management of the school into a position of some risk.

    c)A predisposition to the ailment – Ms Wright suggests that Mr Harris under-reported his alcoholic consumption, and failed to disclose it to his doctors. She further suggested that the decades of heavy drinking in his background, together with his use of cannabis, had had an effect on him, and noted that in the past six months and more before the appointment with Dr Drini in June 2015 he had been binge drinking and smoking cannabis. The abuse of alcohol and drugs, Ms Wright argued, may have caused Mr Harris’s incapacity for work in January 2015. That is a plausible hypothesis. Mr Harris said at the hearing that he had always been open about his drinking, but Ms Wright was able to point to a number of occasions on which he had been inconsistent in reporting his use of alcohol and drugs. He is recorded by Dr Chow, for example, as having reported a history of heavy drinking when young but now drinking only socially once a month, an account that is clearly understated. But if the hypothesis is plausible, it is not much more than that. It is indeed true that Mr Harris was inconsistent in reporting his drinking – he told Dr Ventura that he had a history of severe alcohol abuse, including binges in the recent past, but to other doctors he reported a much lower level of consumption. Dr Chow, when fully apprised of Mr Harris’s use of alcohol and drugs, suggested an underlying alcohol use disorder, and noted that “it remained a possibility that his alcohol drinking was a factor affecting his performance at Calwell High School and his prolonged psychiatric difficulties after he went off work in January 2015”[70]. But Dr Chow remained convinced that the mobile phone issue and performance concerns were “the significant contributing factors” to Mr Harris’s psychiatric condition. Ms Wright’s hypothesis does not have the necessary evidentiary support, in particular from her expert witness, Dr Chow.

    d)Other activities unrelated to employment – apart from Mr Harris’s use of alcohol and drugs he went through a separation from his partner during the relevant period. This is reported as an amicable separation that did not impose undue stress, although Dr Chow suggested that any separation imposes stress on the partners as their lives change. In this case little evidence has come forward suggesting that the separation had a major part to play in Mr Harris’s problems at Calwell. Similarly I have heard nothing to suggest that Mr Harris’s other activities – his cleaning job and his small business repairing hi-fi equipment, for example – had any part to play in causing his psychiatric condition.

    e)Any other matters affecting health – Mr Harris has a number of abdominal issues that have troubled him, apparently having their origin in the attack of acute pancreatitis in 2009, with epigastric pain and nausea off and on since that time. Mr Harris suggested that these pains were with him a good deal of the time. Dr Chow was aware of these issues at the time of his final report, but that did not alter his view of the causation of Mr Harris’s psychological problems. These health issues may have had an effect on Mr Harris, but not to the extent that they crowded out the effects of his employment in bringing about his psychiatric ailment.

    f)Other matters – no suggestion has been made regarding other causative factors, and I am aware of none. Although Mr Harris has clearly developed a strong fear of Calwell and Mr McCourt, no-one, and none of the expert witnesses in particular, has put forward any suggestion that this is the kind of case where a person focuses on an event in the workplace and through the effect of some underlying psychological tendency, makes it into “an inert focus for a neurosis determined by other factors”, as in Kirkpatrick v Commonwealth (1985) 62 ALR 533 (at 538).

    [70] Exhibit R5.

1. Taking all of the above into account, I am persuaded that a number of factors probably exerted an effect on Mr Harris, and may well have contributed to his susceptibility to a psychiatric ailment, and indeed to the ailment which he developed. But Mr Harris’s employment by the Directorate provided the major contribution, and without the mobile phone incident, in particular, professional opinion is that his psychiatric condition would not have developed. The effect of that meeting and the events of January 2015 were certainly significant in the terms of section 5B of the SRC Act. I so find.

   Is Mr Harris’s psychiatric condition excluded from compensation because it was caused at least in part by reasonable administrative action?

2. The exclusion in subsection 5A(1) of the SRC Act denies compensation to a person who has suffered an otherwise compensable injury or disease if that injury or disease is the result of “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. Subsection 5A(2) provides a non-exhaustive list of actions that are to be taken as falling within “reasonable administrative action”, including (relevantly) reasonable appraisal and counselling, or anything reasonable done in connection with reasonable appraisal or counselling.

   Were the actions that caused Mr Harris’s ailment administrative action?

3. What constitutes administrative action has been the focus of a number of important decisions by the courts. In particular, in Commonwealth Bank v Reeve [2012] FCAFC 21, the full Federal Court held that administrative action is focused on the employer-employee relationship and action under the contract of employment, and does not extend to the content of the employee’s work or the general performance of his or her functions as an employee.

4. In this instance, turning to the four contributing factors to Mr Harris’s psychiatric ailment:

   a)The issues that arose in the period in which Mr McCourt and Mr Harris worked at Calwell before June 2014 did not constitute administrative action, because the events singled out as sources of tension and difference all related to Mr McCourt’s work – managing the finances, managing the property, conducting performance reviews for staff. These did not focus on the employer-employee relationship, nor did they deal with any of the specific matters mentioned in subsection 5A(2).

   b)The mobile phone incident involved both administrative and non-administrative action, as it dealt with both the management of the school’s property and the appraisal and counselling of Mr Harris; but the major incident in the relevant events of those two days was the meeting of 4 June 2014, and the focus of that meeting was the appraisal of Mr Harris’s performance as a Business Manager, and his counselling regarding his performance in that role. The incident falls into the category of administrative action.

   c)The events of January 2015 are somewhat obscure. Not only do the versions put forward by Mr van Campenhout and Mr Harris regarding their discussion at that time differ, Ms Wright pointed out during the hearing that Mr Harris’s version of the conversation first appears more than a year after the event. Mr Harris acknowledged under cross-examination that he may not have recalled the exact words of the conversation. On either version, however, the discussion was about Mr Harris’s future plans for his employment by the Directorate and constitutes administrative action.

   d)The directive to return to work in early 2016 (or late 2015) is clearly about Mr Harris’s employment relationship with the Directorate and is administrative action.

   Were these actions reasonable?

5. In Hart v Comcare [2005] FCAFC 16 (Hart) the full Federal Court held that where there were several causes of a condition and one of those that was a significant cause met the exclusion for reasonable administrative action, then compensation was excluded under subsection 5A(1) of the SRC Act.

6. Taking first of all the mobile phone incident, it appears that what Mr Harris was seeking and what Mr McCourt was offering were vastly different. Mr Harris realised that he had made an error with potentially serious consequences. His attempts to raise the matter with Mr McCourt were, from his perspective, an attempt to obtain help. He was dismayed when Mr McCourt refused to deal with the matter on the instant, but insisted on scheduling it for later. That happened twice, on the afternoon of 3 June and again early on the morning of 4 June 2014. Mr Harris reacted, at least in part, to Mr McCourt’s manner in turning him away; to him, it evidently seemed peremptory and high-handed.

7. When the meeting did take place, Mr Harris found it “punitive”. In a sense it was, as Mr McCourt, it appears, was principally concerned to ensure that administrative practices were tightened, and that Mr Harris was made appropriately aware of how far he had departed from proper practice. It seems that the most serious matter to Mr McCourt was not the debt that had accrued, but that the loss of the phone had not been raised with him earlier. What Mr McCourt did at the meeting was take stock of the situation and then identify what he saw as the shortcomings in Mr Harris’s performance, that is, he engaged in informal counselling. This was not an unreasonable thing for a Principal to do, in the circumstances where a significant bill had been allowed to build up where it might have been readily avoided. It also seems reasonable that Mr McCourt might have been bothered by not having been informed at an earlier stage. The comments on Mr Harris’s performance were not limited to property or finance but also extended into communication.

8. It does not follow, of course, that Mr McCourt’s actions were those of an ideal manager. It may be that another person in his place might have detected Mr Harris’s distress and proceeded to handle the matter in a way that avoided causing psychological injury and retained him as a productive worker in the ACT school system. But the legislation only requires that the action be reasonable, not that it be the most reasonable available. In Comcare v Martinez (No 2) [2013] FCA 439 Robertson J noted that while administrative actions alternative to those actually employed might be a relevant consideration in assessing the reasonableness of those actions, it did not follow that the exclusion required that the most reasonable alternative be that adopted (at [81]).

9. The papers include a suggestion that Mr Harris’s responsibilities included the phones as property but not their operation, and that he was therefore not responsible for the loss or the large bill that had accrued. None of the evidence appears to me to support that contention, and Mr Harris did not put that argument to me.

10. I find that Mr McCourt’s counselling of Mr Harris on 4 June 2014 was reasonable administrative action.

11. The uncertainty regarding the events of January 2015 make it more difficult to reach a conclusion whether the actions were reasonable, but if Mr van Campenhout’s version is accepted then an enquiry about Mr Harris’s future plans after six months’ absence seems eminently reasonable. Even if Mr Harris’s version were accepted, it does not seem unreasonable that Mr van Campenhout would convey his Principal’s expectations to Mr McCourt.

12. The directive to return to work could certainly be challenged as unreasonable, in that it took place against medical advice and apparently without prior consultation with Mr Harris. For reasons explained below, however, I do not need to make a finding in regard to that development.

    Were these actions taken in a reasonable manner?

13. When the time came for Mr Harris to cross-examine Mr McCourt he stated that he was unable; he then repeated that with Mr van Campenhout. In not testing their evidence, Mr Harris passed up the opportunity to explore, in particular, whether their contested actions were taken in a reasonable manner.

14. In the context of the mobile phone incident, Mr Harris evidently expected that because of his own distress and the seriousness of the matter Mr McCourt would deal with it the instant he raised it. It does not seem unreasonable to me, however, that Mr McCourt would prefer to schedule a time when he could consider the matter properly, rather than when he was in the middle of another activity (on 3 June) or at 7.15 am on his arrival at school (on 4 June). Whether Mr McCourt took his actions in an unreasonable manner may well have depended on the detail of his behaviour and body language; the evidence I have is equally consistent with a firm but principled manager and a martinet. On the material before me I cannot reach any state of satisfaction that Mr McCourt’s actions in respect of the mobile phone were taken in other than a reasonable manner.

15. I have no evidence before me – from either version of the events - to suggest that Mr van Campenhout’s discussions with Mr Harris in January 2015 were not taken in a reasonable manner. Again, much might depend on the way in which the messages were delivered, and that was not tested at the hearing.

16. On the balance of probabilities, I find that the mobile phone matter and the discussion of January 2015 were reasonable administrative action taken in a reasonable manner.

17. Mr Harris’s psychiatric ailment is the result of multiple causes: the relationship with Mr McCourt; the mobile phone incident; the events of January 2015; and the directive to return to work at Calwell. Of these causes the first is not administrative action, but the second and third are administrative action and both are reasonable administrative action taken in a reasonable manner. That finding means, following the doctrine in Hart, that Mr Harris’s compensation claim is excluded under section 5A of the SRC Act.

18. The only possibility that escapes that outcome is if the directive to return to work had caused a separate and distinct injury – an aggravation of the earlier injury – that was nevertheless within the ambit of the claim made on Comcare. But that possibility falls away, for two reasons:

    a)First, the scope of the claim does not, in my view, extend to an aggravation in January 2016. The tribunal, on review, is not bound by the construction Comcare has placed on a claim, and can include in the scope of a review matters that fall within the scope but were not taken into account by Comcare in its initial and reconsideration determinations: see Abrahams and Comcare [2006] FCA 1829; Comcare v Muir [2016] FCA 346; Szabo v Comcare [2012] FCAFC 129; Durham and TNT Australia [2011] AATA 802; Kennedy v Comcare [2014] FCA 82; Australian Postal Corporation v Sellick [2008] FCA 236; Comcare vBromham [2017] FCA 174. But in this instance the claim, Mr Harris’s supporting statement, the initial and reconsideration determinations and Mr Harris’s request for reconsideration all focus on the earlier events up to January 2015. It is only in two submissions prepared for the hearing itself that Mr Harris raised the inadequacies of the return to work process[71]. There is no basis for now extending the scope of the review to include later events, which lie outside my jurisdiction.

    b)The medical evidence does not adequately support a conclusion that the exacerbation of symptoms from early 2016 is a separate aggravation and not simply a part of a single ailment the seriousness of which fluctuates over time in accordance with the ebb and flow of various stressors.

    [71] Exhibits A1 and A2.

    Date of injury

19. Given the above findings, the other matters listed above under “issues” no longer need to be resolved, but for completeness I would note that the major trigger for Mr Harris’s condition was the events of 3-4 June 2014, but the condition reached clinical significance, and therefore became potentially compensable, only in January 2015 (on the basis of the course of events and Dr Chow’s evidence in particular). The date of first consultation with a doctor over the condition, namely 27 January 2015, would therefore become the date of injury.

    CONCLUSION

20. Mr Harris said at the beginning of the hearing that he was seeking “closure”. It is indeed to be hoped that this decision, while it does not grant him compensation, might nevertheless provide him with a clean end to the events that have distressed him. Mr Harris is not entitled to compensation, but it appears to me that opportunities to help him recover from the original injury were not taken. That is unfortunate, as it appears that the ACT school system lost a productive worker who could have made a continuing contribution.

21. The decision under review is affirmed.

93.     I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of  Member Mark Hyman

94.      

..............................[sgd].......................................

Associate

Dated: 27 August 2018

Date of hearing:

2 July 2018

Applicant:

In person

Solicitors for the Respondent:

Counsel for the Respondent:

Ms Shery William, Comcare Legal

Ms Sarah Wright