Hart and Comcare
[2004] AATA 128
•10 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 128
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/83
GENERAL ADMINISTRATIVE DIVISION ) Re OLGA HART Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date10 February 2004
PlaceCanberra
Decision
The reviewable decision of 4 January 2001 is set aside and in substitution the Tribunal determines that Comcare is liable to pay compensation to Ms Hart pursuant to section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 for an adjustment disorder the onset of which occurred around July-August 2000.
The Tribunal orders Comcare to pay Ms Hart's costs as agreed or taxed, other than those for the lost hearing days of 25 to 27 March 2002.
................................…………..
G A Mowbray
Member
CATCHWORDS
COMPENSATION – liability – nature and conditions of work – adjustment disorder – material contribution from employment – failure to obtain promotion – costs – decision set aside
PRACTICE AND PROCEDURE – s 37 documents
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Administrative Appeals Tribunal Act 1975 s 37
Comcare v Mooi (1996) 137 ALR 690
Trewin v Comcare (1998) 156 ALR 615
Comcare v Ross [1996] FCA 680
Re Gelbak and Comcare [1995] AATA 10169
Re Fitzgerald and Comcare [1995] AATA 10514
Re Parker and Comcare [1996] AATA 11298
Re Myers and Comcare [1997] AATA 11756
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
10 February 2004 Mr G A Mowbray Summary
1. Ms Olga Hart, the Applicant in this matter, had been employed by the Department of Defence (the Department) for some years when she made a claim for rehabilitation and compensation on 18 August 2000. She said that she suffered from depression and anxiety and an adjustment disorder with anxious and depressed mood caused by events associated with her application for three positions.
2. Although the Respondent, Comcare, accepted that she suffered from an adjustment disorder the claim was rejected on 30 September 2000. Comcare was not satisfied that Ms Hart's employment materially contributed to her condition. Furthermore the exclusionary provision which provides that compensation is not payable for injuries which result from failure to obtain a promotion applied to Ms Hart's case. This decision was upheld on review on 4 January 2001.
3. The initial claim for compensation centred on events associated with Ms Hart's lack of success with a number of job applications but over time its ambit has broadened. The case presented to the Tribunal was a nature and conditions claim based on the cumulative effect of a large number of incidents in the course of Ms Hart's employment with the Department. I have not accepted many of Ms Hart's claims concerning these incidents, nor that they contributed to her accepted adjustment disorder.
4. However I am satisfied that a number of incidents associated with the application, interview and promotion process contributed materially to Ms Hart's condition. I am also satisfied that these incidents do not fall within the exclusionary provision. As Comcare conceded that Ms Hart is incapacitated for work she is entitled to compensation in accordance with the Act. I have therefore set aside the reviewable decision.
Issues
5. There was some debate early in the hearing over the ambit of the matters for review before the Tribunal. Ms Hart contended that the Tribunal’s jurisdiction extended to not only Comcare's liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) but also compensation for medical expenses under section 16 and for incapacity under section 19. Comcare on the other hand argued that I was limited to matters arising under section 14. Liability had been denied under section 14 and neither the primary decision-maker nor the independent review officer had considered sections 16 and 19.
6. For reasons which I provided orally in my ruling on 22 July 2002 I agreed with Comcare that the Tribunal's jurisdiction in this matter was confined to those issues which arose under section 14
“(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in .... incapacity for work ... ."
7. "[I]njury" is defined in section 4(1) and includes a “disease” which is also defined in that section. The definition of "injury" specifically excludes any disease or injury suffered as a result of failure by the employee to obtain a promotion.
8. The broad issue therefore is whether Comcare is liable to pay compensation to Ms Hart pursuant to section 14 of the Act. To determine this the Tribunal must consider the following
· the nature of the alleged incidents
· the reliability of Ms Hart's evidence
· the condition from which Ms Hart suffers
· the time of onset of this condition
· the promotion related episodes or incidents
· the incidents which contributed to Ms Hart's condition
· the "failure to obtain a promotion" exclusion
· incapacity for work.
There was also a dispute about costs should Ms Hart be successful.
What were the Alleged Incidents
9. Ms Hart submitted that this was a nature and conditions claim. It was not based around one single incident but rather around the cumulative effect of a series of incidents in the course of Ms Hart's employment with the Department. The incidents encompassed a range of interactions with various people resulting in her developing a psychological illness. In Ms Hart's view there was an on-going program of harassment and conspiracy against her by Mr Colin Tolano, an Assistant Secretary in the Defence Information Systems Group, and a number of his subordinates. Mr Tolano was Ms Hart’s branch head for much of this time.
10. Some of the more important incidents which Ms Hart alleged had occurred and had contributed to her current illness were
· February 1996 - an investigation into allegations of fraud at Mitchell against Lieutenant Colonel Douglas Straiton
· 1997 - allegations of harassment by and clashes with Major Nerida Turner resulting in an investigation by Mr David Anderson
· 1997-1998 - harassment by Mr David Templeman and Mr David Anderson in an attempt to prevent Ms Hart from lodging a formal grievance against Major Turner, including a telephone call from Mr Anderson to Ms Hart at home while she was on sick leave
· early 1998 - being ignored or snubbed by Mr Tolano on a number of occasions and his alleged refusal to allocate finance work to her on the basis of her involvement in the Mitchell fraud
· December 1998 - July 2000 - a series of alleged incidents while Ms Hart was outposted to Deakin, in particular the refusal to provide support and adequate resources to cope with a large workload and the conflict of loyalties inherent in the outposted position where Ms Hart's actual supervisor was located elsewhere but her day-to-day responsibilities were to officers of another branch. Ms Hart referred especially to conflicts with her immediate supervisor, Mr Tom Hick, and her section head, Mr Terry Watson
· 3 March 2000 - cancellation of the interview for that day for the Joint Systems Support Agency (JSSA) Executive level 1 (EL1) position and the various explanations Ms Hart says that she was given for this last minute cancellation
· March 2000 - the failure of Messrs Hick and Watson to provide additional resources to assist Ms Hart in her Deakin position while she worked half time on a tender evaluation team for which she had volunteered. During this period Ms Hart continued to attend weekly meetings with Mr Watson who took issue with her for babysitting the clients at Deakin and on one occasion for being one minute late to the meeting
· May 2000 - the alleged removal of $1.7 million by Mr Watson's section from the budget of the Information Services Branch headed by Air Commodore Julie Hammer
· 22 June 2000 - the interview for the contract and procurement EL1 position
· May - June 2000 - the proposal to remove Ms Hart's assistant, Ms Angela Mason, and return her to head office and the subsequent reprimand by Mr Watson for Ms Hart's disloyalty
· June 2000 - the concern expressed by Mr Hick over Ms Hart seeking permission from Colonel Moffatt to attend a three day training course
· July 2000 - the proposal to return Ms Hart from Deakin to Civic from about 21 July 2000
· July 2000 – the alleged loss of the application for the financial adviser EL1 position, Ms Hart's subsequent meeting with Mr Watson, the interview for the position on 19 July and her request for an independent witness to be present
· 14 August 2000 - the recall from sick leave for a meeting with Mr Tolano and subsequently the division head, Mr Patrick Hannan
· October 2000 - January 2001 - incidents associated with the Grills Inquiry into Ms Hart's grievance allegations, including her request that Mr Peter Grills discontinue his investigations
· October - November 2000 - phone calls to Ms Hart's home from various departmental officers, including Mr Watson and Ms Michelle Vella, which Ms Hart perceived to be further harassment
· 28 November 2000 - an incident outside the Campbell Park Offices when Ms Hart was spoken to by Mr Watson and the subsequent meeting of Mr Watson with a number of his staff when he was alleged to have instructed them to have nothing to do with Ms Hart during working hours
· 21 December 2000 - the unanswered phone call Ms Hart says came from Mr David Anderson to Ms Hart's mobile phone followed by the disconnection of that mobile phone without consultation with Ms Hart
· 22 December 2000 - the meeting with Mr David Anderson at the Deakin shopfront of the Department and a later telephone conversation with a Defence medical case manager, Mr Steve Dezso, who asked Ms Hart to leave the premises
· 9 October 2001 - Ms Hart's visit to the premises of the Australian Defence College at Weston and the use of its facilities, in particular the telephone, fax machine and photocopier.
11. These incidents are the main ones that Ms Hart contended cumulatively contributed to her current condition. The list is not exhaustive but provides a picture of Ms Hart's perception that she was subject to on-going harassment and poor treatment in the workplace.
12. I do not necessarily accept that all these incidents occurred in the manner asserted by Ms Hart. Furthermore as will become obvious it is not necessary for me to make findings of facts in relation to many of these matters.
Was Ms Hart’s Evidence Reliable
13. Ms Hart gave oral evidence to the Tribunal over a period of approximately two and a half days. In addition numerous documents authored by Ms Hart were received into evidence.
14. Mr Pilkinton for Comcare contended that the Tribunal should not accept anything that Ms Hart said without corroboration. Almost everything she said about what occurred in the workplace over the period canvassed in this case could not be accepted as being the truth. It was not reality based but rather a manifestation of her perception of what happened. Mr Pilkinton said that this was a reflection of her dysfunctional character.
15. Mr Pilkinton gave the following examples
· Ms Hart's assurance to Mr Brian Ackerman on 4 January 2001 contrary to the facts that apart from one or two calls no private calls were made from her Defence mobile phone
· contrary to Ms Hart's assertions, she was attending to purely private matters in her faxes to NRMA and Telstra share registries when she used the Australian Defence College facilities at Weston on 9 October 2001
· Ms Hart's claim that her interview for the JSSA EL1 position was cancelled in March 2000 by Mr Tolano to stop Ms Hart advancing, when in fact the decision to cancel the interviews was made by the division head, Mr Patrick Hannan, to fit in with a proposed restructure
· Ms Hart's response when confronted with a recording of a conversation between herself and Mr Jim Ross, her husband, which appeared on Mr Hicks’ answering machine on 14 August 2000 and her rather bizarre speculation on the origin of the recording and how Comcare had obtained access to it.
16. Mr Anforth for Ms Hart stressed how genuine she was in her perceptions and views. In particular he said that she initially denied making the call recorded on Mr Hicks’ answering machine because she did not know it had been made. In her evidence she eventually suggested that it was probably as a result of her accidentally hitting the redial button. This did not make her a liar.
17. Having observed Ms Hart being examined and cross-examined in the witness box over a period of two and a half days and having carefully read the transcript of her evidence I have real doubts about her reliability and indeed her credibility as a witness.
18. On some matters Ms Hart drew conclusions which while suiting her view that there was a conspiracy against her are not borne out by the facts. She then doggedly resisted any attempt to suggest that she may be wrong. I instance for example her view that Mr Tolano played a sinister role in the cancellation of the JSSA EL1 interview.
19. Ms Hart often exaggerated significantly. She said that she was "constantly" in tears and "always" being harassed. However when pressed on the frequency it was not as often as she had initially suggested. She tended to translate individual examples into a continuous stream.
20. Overall I formed the impression that Ms Hart was quick to take offence, readily perceiving that she was being treated unfairly. She constructed a version of the facts which fitted in with that perception. I also believe that Ms Hart has a tendency to engage in reconstruction of the facts after the event to suit her underlying concerns.
21. A number of other matters also raised questions about Ms Hart's credibility and reliability as a witness. Ms Hart's attempt to justify her use of a Defence mobile phone as related to her work while she was on sick leave between July and November 2000 stretched the bounds of credulity. During this period she made a total of 873 calls from the mobile phone, on average more than eight calls every day, with two-thirds of the numbers being called having been identified as unrelated to Defence. Ms Hart's contention that only a few of these calls were personal flew in the face of the evidence and reflected poorly on her.
22. Furthermore Ms Hart's explanation that the faxes she attempted to send to the share registries of NRMA and Telstra on 7 October 2001 using Australian Defence College facilities as being related to her claim to Centrelink for a disability pension was at best disingenuous. Why if this were so would she request in the fax for the NRMA to send "a statement to ATO [Australian Tax Office] as to I am claiming"? Although this incident in itself may be relatively trivial as put by Mr Anforth, Ms Hart's insistence that Mr Anforth persevere with her contention that these fax messages were work related cast further doubt over her credibility.
23. Consequently I am of the view that Ms Hart was not a credible or reliable witness. I have therefore not accepted her evidence unless it was uncontested or corroborated by other evidence before the Tribunal.
From what Condition does Ms Hart Suffer
24. The first diagnosis by a specialist of Ms Hart suffering from a psychiatric condition was made by Dr Patrick Cullen, a psychiatrist to whom Ms Hart's general practitioner, Dr Greenman referred her on 31 August 2000. He found an Adjustment Disorder with Anxious and Depressed Mood (DSM 309.24).
25. On 4 August 2001 Dr Hugh Veness, a consultant psychiatrist, who had been treating Ms Hart since 22 March 2001 found that she suffered from Chronic Generalised Anxiety Disorder with Depressed Mood. There is further support for Dr Veness's diagnosis in the 26 October 2000 report of occupational physician Dr Garth Eaton and in psychologist Mr Jeff Parsons’ reports of 21 December 2000 and 31 January 2001.
26. Dr John Champion, a consultant psychiatrist who examined Ms Hart for Comcare found that she suffered from a combination of symptoms of paranoid perceptions, anxiety, depression and anger. He agreed that this may best be diagnosed as an adjustment disorder.
27. I am therefore satisfied that Ms Hart suffers from a psychiatric condition described variously as an adjustment disorder or a Chronic Generalised Anxiety Disorder with Depressed Mood, being "a condition that is outside the boundaries of normal mental functioning and behaviour" (Comcare v Mooi (1996) 137 ALR 690 at
694). I will refer to this condition as an adjustment disorder.28. There was some discussion whether this amounted to a simple injury or a disease. As will become apparent it is not necessary to resolve this issue.
When was the Time of Onset of the Adjustment Disorder
29. Ms Hart contended that her adjustment disorder could be traced back through a whole series of events to the fraud investigation into Lieutenant Colonel Straiton at Mitchell in 1996. But she placed more significance on the clashes between herself and Major Turner in 1997. Her condition was the consequence of all these events and the manner in which she had been treated at work in the Department back at least to the Turner conflict.
30. She relied principally on the evidence of Dr Hugh Veness, her consultant psychiatrist, who concluded
“The principal cause has been mental and emotional trauma sustained in the workplace, as outlined under Stressful Events and Experiences at Work. Failed promotion was not the reason for the breakdown in her mental health.”
31. The stressful events to which Dr Veness referred included
· the problems with Lieutenant Colonel Straiton in 1996
· the conflict with Major Turner in 1997
· the heavy workload at Deakin
· the removal of a large amount of funding from Deakin
· the unsuccessful attempts to obtain additional resources and assistance
· the failure to obtain promotion
· the directions to staff not to talk to her at work
· the mobile phone confiscation
· the inadequate Grills investigation.
32. Dr Veness reported
“This has been a mere, brief outline of events which have traumatised Olga Hart and resulted in the development of her adjustment disorder and anxiety conditions. ... I could not find any medical or psychiatric justification for attributing her illness solely to the question of failed promotion.”
33. Dr Veness essentially confirmed in his oral evidence what he had written in his reports. He agreed that failure to gain promotion and the way that that was handled did have some impact on her. However the genesis of her emotional disturbance could be traced to the harassment she suffered from Major Turner, the worry about whether she should make a complaint, attempts to dissuade her from making a complaint and eventually her lodging a complaint.
34. Dr Garth Eaton, an occupational physician, found
“On the information presented to me there has been a series of work-related events which have cumulated in a psychological breakdown. It appears to me that Ms Hart has experienced several incidents at work where she has been unfairly treated and not given a "fair go." In my opinion Ms Hart's medical condition is a direct result of the effects of a number of unfortunate incidents at work which she has detailed in her submission. I believe the number and combination of these stressful incidents was more important than any particular single event in causing her psychological distress.”
35. Dr Eaton does not specify the incidents, nor is it clear to which submission he is referring, although it may be to Ms Hart’s formal complaint of 20 September 2000.
36. In his short report of 26 October 2000 Dr Patrick Cullen said that Ms Hart's condition "appeared to be a reaction to stresses with her place of work which had been ongoing for some time". In an earlier report to Dr Greenman he noted that Ms Hart "gave a history of occurrences in her place of work to which she reacted in a distressed way". Dr Cullen does not detail these stresses nor did he give oral evidence to the Tribunal.
37. Psychologist Jeff Parsons who examined Ms Hart in December 2000 and January 2001 referred to "her current workplace grievance, commencing from when she was approached in February 2000 to apply for a promotion. Ms Hart maintains that the sequelae from this event has contributed significantly to her current psychological problems". He also referred to "evidence to suggest pre-existing experiences of elevated anxiety and obsessional qualities to her personality". Again these experiences are not detailed.
38. In May 2001 Ms Hart saw Dr G.J. Paton, the Director of Medical Services for Health Services Australia, to determine her fitness for duty. He found her still to be affected by an adjustment disorder. The discussion with her included "a long list and description of workplace incidents, conflicts, confrontations and counter-confrontations. These were deeply entrenched in Ms Hart's mind". Dr Paton said that the adjustment disorder was consequent upon workplace conflict.
39. On the evidence the earliest date at which Ms Hart was assessed as suffering an adjustment disorder appears to be 31 July 2000 when she saw her general practitioner, Dr Gwen Greenman. This is shown in a medical certificate dated 15 August 2000 which attributes the condition to Ms Hart's work. Although Ms Hart stated that in 1997 after the Turner affair she had twice seen a psychologist, Mr Brian Hodges, there is nothing before the Tribunal indicating what if any diagnosis Mr Hodges made at that time.
40. Relying on the evidence of Dr John Champion, a consultant psychiatrist, Comcare has argued that there is no evidence of Ms Hart suffering from a psychiatric disorder until after she was unsuccessful in seeking promotion to the three EL1 positions. In his report of 14 August 2001 Dr Champion found
· Ms Hart's underlying personality structure wholly accounted for her current psychiatric condition
· this made it difficult for her to accept that failure to obtain a promotion may have been reasonable or legitimate rather than unfair and unjust
· her current psychological condition was due to her failure to obtain promotion to the executive positions within the Department
· there was no indication of psychiatric disorder or psychological decompensation until after Ms Hart had perceived that she had been unjustly treated in relation to the various applications for promotion
· apart from her failure to gain promotion, the conditions of Ms Hart's employment did not make any material contribution to the development of her current psychiatric condition.
41. In his report of 12 February 2002 Dr Champion noted
· Ms Hart was able to continue working and had not been troubled by any significant anxiety or depression until the events relating to her failed application for promotion
· until the failed promotions Ms Hart appeared to have been in good mental health in that she viewed herself as qualified and able to manage the promotion positions for which she had applied
· any attempt to link Ms Hart's disappointment over the promotions with problems in the past with which she appeared to have coped without difficulty was not convincing.
42. In his oral evidence Dr Champion did not accept the view of Dr Veness that Ms Hart's problems at work probably started with the Major Turner affair in 1997. He said
“... following the Turner episode she apparently had been able to continue in the workplace and work to a level where she felt capable of gaining promotion and doing the job properly, whereas the events in the promotion related episodes appeared to totally unsettle her.”
The first indication he had of her condition was her attendance on Dr Cullen in August 2000.
43. Dr Champion said that the fact that she was able to apply for promotion to these positions was a reasonable indication that she felt at least capable of doing good work and of functioning normally. The failure to gain promotion "tumbled her into something completely different" and this was what led her to her breakdown.
44. In assessing the evidence I am conscious that Drs Veness, Eaton, Cullen, Paton and Greenman relied heavily on the version of events going back to 1996 provided to them by Ms Hart. In a number of cases the specific events and incidents are not spelt out by the medical practitioners. I have the same concern with the report of Mr Parsons. Earlier in these reasons I reached the conclusion that I could not rely on Ms Hart's evidence unless it was corroborated independently. Medical evidence based on her version of the events is therefore equally unreliable unless it is based on events for which corroboration has been obtained.
45. I accept the view of Dr Champion that the genesis of Ms Hart's adjustment disorder cannot be traced back to the difficulties associated with Major Turner in 1997 or to problems before that time. The best evidence is that the onset of the disorder occurred during the promotion related episodes which according to Dr Champion totally unsettled her. Indeed on Ms Hart's own evidence prior to this time she took little sick leave, she worked long hours including evenings and weekends, she took on extra work in a tender evaluation team and she sought promotion to a number of executive level positions. Dr Champion said she was capable of functioning normally. She did take a long period of leave from April to July 1998, but this was not sick leave.
46. I am therefore satisfied that Ms Hart first suffered the psychiatric condition of an adjustment disorder the subject of this claim around July-August 2000. This was when Dr Greenman certified her as unfit for work and when Dr Cullen diagnosed the disorder. I am not satisfied that Ms Hart experienced this condition prior to this.
What were the Promotion Related Episodes or Incidents
47. In her evidence Ms Hart referred to a series of incidents associated with the application, interview and promotion process for the three EL1 positions for which she had applied. These caused her concern and upset and she said contributed to her current adjustment disorder. In view of my earlier finding that I could not rely on Ms Hart's evidence without corroboration it is necessary to examine the other evidence to see whether there is support for Ms Hart about these incidents.
JSSA EL1 position
48. The principal incidents associated with the JSSA EL1 position on which Ms Hart relied are
· 3 March 2000 - late cancellation of the interview due to be held later that morning
· 3 March 2000 - Ms Hart was advised by Ms Lynda Ord who said she was ringing on behalf of Mr Tolano to tell her that the interview was being cancelled because Ms Hart had no complex procurement experience
· 3 March 2000 - Mr Watson phoned stating that the interview was cancelled because advance from an APS6 to a SOGC (EL1) "is such a high jump"
· 3 March 2000 - Mr Hicks told Ms Hart that he thought she was capable of doing the job but "there were politics involved"
· mid-March 2000 - Mr Tolano told Ms Hart that the interview was cancelled due to a restructure and that in any event she would not have been suitable because "you worked at Mitchell while the fraud was on".
49. Ms Ord did not give evidence before the Tribunal. However she told Mr Grills’ investigation into Ms Hart's grievance that "she felt she was more likely to have said that none of the candidates had complex procurement skills, rather than directing such a comment specifically at Ms Hart".
50. Mr Tolano's evidence was
· the decision to cancel interviews for the JSSA EL1 was not made by him but by the division head as Mr Hannan wished to restructure all business manager positions into a single directorate within the Information Services Branch
· this decision had nothing to do with Ms Hart and he did not even know that Ms Hart was an applicant for the position
· soon after Mr Hannan made the decision Mr Tolano instructed one of his directors, Mr David Anderson, to ensure that the interviews did not proceed. He did not have any discussion with Ms Ord on the matter
· when Mr Tolano became aware that Ms Hart was unhappy about the cancellation of the interviews he arranged a meeting with her at her office in Deakin
· he did not tell her that she was not a suitable candidate because she had been at Mitchell when the fraud was on. In fact he had no prior knowledge of the fraud at Mitchell until Ms Hart mentioned it at the beginning of that conversation
· he explained why the JSSA EL1 position had been restructured and Ms Hart seemed to accept his explanation
· the interview process had not been stopped because Mr Tolano was dissatisfied with the quality of the field.
51. Mr Anderson confirmed that the decision to cancel interviews for the JSSA EL1 position was made by Mr Hannan as part of a restructure and had nothing to do with Ms Hart being an applicant. Mr Anderson had been told by Mr Tolano to contact the applicants and let them know that the interviews would not be proceeding. He was under the impression that it was he who had contacted Ms Hart to advise her of this, not Ms Ord.
52. Mr Patrick Hannan who was head of the Information Systems Division stated that he had decided that recruitment should cease on the JSSA EL1 position because he proposed to restructure and amalgamate a number of sections within his division. He did not think that he actually knew Ms Hart at the time and he certainly did not know that she was an applicant for the position.
53. Mr Terry Watson who was head of Ms Hart's section said that he was aware the decision was made not to go ahead with the proposed JSSA EL1 position although he was not involved in the decision or discussions surrounding it. He did recall that Ms Hart had raised the cancellation of the interview with him but the cancellation had nothing to do with her or the other applicants. He definitely did not recall any discussion with Mr Anderson in the context of Ms Hart’s application for the JSAA position or the cancellation of her interview about it being a big jump from an ASO6 to an EL1. He had told her on one occasion that such a move was a big jump but was uncertain when.
54. Mr Tom Hick, who was Ms Hart's direct supervisor, recalled that she was very upset when the interviews were cancelled and that she felt right from the start that Mr Tolano had interfered. Ms Hart had only asked for Mr Hick's support after the job had been withdrawn. At that time and on the basis of the job as she described it Mr Hick agreed that he thought she would be suitable as it did not involve strategic thinking. In Mr Hick's view it was questionable whether it ought to have been classified at the EL1 level. He did not tell Ms Hart that she was not going to be promoted because of Mr Tolano, although he did agree she would not be promoted because there were other better qualified people.
55. Having regard to the evidence outlined above I am satisfied
· the interviews for the JSSA EL1 position were cancelled shortly before they were due to be held
· the decision to cancel the interviews was taken by Mr Hannan so that he could restructure certain sections within his division
· Mr Tolano did not make this decision
· the decision was not directed at Ms Hart nor did it have anything to do with her level of experience with complex procurement matters
· Mr Tolano asked Mr Anderson to arrange for the potential interviewees to be advised
· Ms Hart was advised probably on the morning of 3 March 2000, the date on which the interview was scheduled
· it is probable that she was advised by Mr Anderson not Ms Ord
· at some stage Ms Hart raised the cancellation of the interview with Mr Watson at which time he told her that the cancellation was not related to her specific application
· Mr Tolano did not raise the Mitchell fraud incident as a reason for Ms Hart being unsuitable for the position when he discussed the cancellation of the interview with her
· Mr Hick did tell Ms Hart that she would be suitable for the position as described to him by Ms Hart, but the evidence does not support a finding that he said "it all comes down to politics".
56. It is clear that there was a series of incidents involving the cancellation of the interview. It is equally clear that Ms Hart's perception that the cancellation was directed by Mr Tolano and part of the broader conspiracy against her is without foundation.
Contracts and procurement EL1
57. In relation to the interview on 22 June 2000 for the contracts and procurement EL1 position Ms Hart alleged that
· she did not get an opportunity to put her answers before being cut off, instancing a question relating to the structure of the new cell
· unpleasant remarks were made to her - for example she was asked whether she wasn't seeking the position "for the money"
· she was not asked many relevant questions
· she was therefore treated unfairly during the interview which was more like a "police interrogation"
· as Mr Tolano "owned the position" and was biased against her she had little real chance.
58. The interview for this position was chaired by Mr Peter Breitkopf who said that initially he had reservations about the suitability of Ms Hart for the position. Nevertheless he was advised by Messrs Anderson and Tolano to interview her. Substantially similar questions in the same manner and tone were directed to all three interviewees. Ms Hart misunderstood some of the questions. For example, she mistook the question about the difference between an APS6 and EL1 being not just one of salary. She saw it as a disparaging remark when in fact it was directed at easing tension. It also sought to emphasise the significant difference between the two levels.
59. Mr Breitkopf denied that he was aggressive or that he cut Ms Hart's answers short. He was adamant that Mr Tolano did not seek to influence him in any way or to influence the outcome of the interview process.
60. I agree with Mr Grills that Mr Breitkopf has a deep voice and speaks in a fairly staccato manner. It's possible therefore that Ms Hart could have unfairly perceived this as being akin to a "prosecutor". She was clearly very upset on 28 June 2000 when informed of the outcome by Mr Breitkopf. He recorded her as being very abusive, accusing him of constantly interrupting her during the interview and making rude and disparaging remarks. She also told him that she believed the result of the interview had been pre-determined.
61. Mr Doug Williamson was the second member of the interview panel. He confirmed Mr Breitkopf's evidence. He denied that Mr Breitkopf made rude or disparaging remarks or that the interview was confrontational in nature or akin to an interrogation. Ms Hart may have been interrupted if she was going off track or was overly long and repetitious, as would be normal practice in an interview. He did not recall anything of a personal nature and said the suggestion that Mr Tolano or anyone else had unduly influenced the interview process was unfounded. Mr Tolano also absolutely rejected any suggestion that he influenced the interview panel.
62. On the evidence before me I can only agree with the conclusion of Mr Grills that there was no credible evidence to support Ms Hart's allegations in respect of this interview process. The interview itself seems to have been quite unexceptional and it is difficult to find fault at all with Messrs Breitkopf and Williamson. There is no evidence of any perverse influence exerted by Mr Tolano.
63. Yet it also seems clear that because of her own misunderstandings at the interview, combined no doubt with her underlying suspicions, Ms Hart came away with misconceived and false perceptions that she had been treated unfairly. This is evidenced not only from her own statements but also from those of Mr Breitkopf, especially that about their telephone conversation when he informed her of the outcome on 28 June 2000. He records that she reacted with considerable vehemence and accused him of giving her a particularly hard time at the interview.
64. I am therefore satisfied that an interview for this position did take place on 22 June 2000 during which Ms Hart was asked a number of relatively innocuous questions and interrupted in response to those questions in a way which she mistakenly perceived to demonstrate unfairness and which caused her distress. It is not to the point that she was treated the same way as the other interviewees and that no fault can be found with the way the interview was conducted.
Financial adviser EL1
65. The two incidents concerning the financial adviser EL1 position which appear to have distressed Ms Hart were
· the apparent loss of her application
· the appointment of Mr Andrew Smith to act as an independent observer at her interview, Mr Smith being a member of Mr Anderson’s section within Mr Tolano’s branch.
66. Ms Hart said that after a staff meeting on 13 July 2000 Mr Watson informed her that he would not be interviewing her for this position because he had not received an application. Mr Watson rang her later that day after talking to recruitment and said that if she were to put in a late application immediately he would see if it met the selection criteria and let her know whether he would interview her. The next day she asked Mr Hannan if she could have an independent observer present at the interview.
67. On the day of the interview Mr Andrew Smith who was a staff member in Mr Tolano's branch attended as the observer. Ms Hart was displeased with this as he was not independent of the branch. She alleged that the interview process was influenced by Mr Tolano and "I just thought it wasn't fair by not having an independent observer from another branch". She made no complaint about Mr Watson's conduct of the interview held on 19 July 2000.
68. Mr Watson's evidence was
· after the 13 July 2000 staff meeting Ms Hart approached him and asked why she was not being interviewed for the financial adviser EL1 position. He told her that it was because he had not received an application from her. He went through the applications in her presence and confirmed that there was no application from her
· he advised Ms Hart to contact recruiting
· shortly after Ms Hart had left his office he contacted recruiting who checked their database and advised there was no record of an application from Ms Hart for the position. They said that it was his prerogative to accept a late application
· Mr Watson told Ms Hart later that day that he would accept a late application and provided the application addressed the selection criteria would interview her for the position
· initially Mr Watson was concerned about Ms Hart's request for an independent observer. However after discussing the issue with Mr Anderson he agreed that Andrew Smith who had recently commenced employment as Assistant Director, Human Resources, would attend
· any suggestion that the interview process was influenced by outside parties, including Mr Tolano, or that it was not conducted fairly was absolutely false.
69. Mr Andrew Smith said that he was asked by Mr David Anderson, his supervisor, to act as independent observer at the interview. Mr Anderson had been approached by Mr Watson. Mr Smith had not met Ms Hart prior to this request nor did she seek to make contact with him prior to the interview. He did not know whether Ms Hart had agreed to his appointment.
70. In Mr Smith’s opinion the interview was conducted in an appropriate manner and fairly. No one had attempted to nobble or influence him in his role. He had no reason at all to suspect that any members of the interview panel were influenced in their deliberations by anything other than the merits of Ms Hart's application.
71. Apart from Ms Hart's own statement there is no evidence that she submitted an application for this EL1 position. The Defence recruitment area had no record of the application and Mr Watson checked the folder of applications in Ms Hart's presence and was unable to locate any from her. I am therefore unable to make a finding that Ms Hart made an application which was subsequently lost.
72. There is no doubt that Ms Hart requested the presence of an independent person to observe her interview. Mr Andrew Smith was nominated and sat in on the interview. Notwithstanding Mr Smith’s recent arrival in Mr Tolano's branch and that he did not know Ms Hart, it is difficult to understand how he could have been seen as independent. He was not a member of Mr Watson's section but he worked directly to Mr Anderson in Mr Tolano's branch. It is no answer as was suggested by Mr Grills that there was no obligation on Mr Watson to agree to the observer.
73. The evidence does not support a finding that Ms Hart agreed to Mr Smith's nomination. It is clear that a fair minded outsider would not see a person in Mr Smith's position as being truly independent.
74. I am satisfied that the interview conducted under the chairmanship of Mr Watson was fair. There is no evidence to suggest that any outside person including Mr Tolano sought to inappropriately influence the interview process and the selection on merit.
Which Incidents Contributed to Ms Hart’s Adjustment Disorder
75. Because of the possible application of the “failure to obtain a promotion” exclusion in the definition of "injury" in section 4(1) of the Act it is necessary to determine which specific incidents may have caused Ms Hart's adjustment disorder.
76. As I have found at paragraph 46 the onset of Ms Hart's adjustment disorder was around July-August 2000. I have rejected the opinion of Dr Veness that a whole series of events commencing in 1996, or more likely 1997 with the Turner affair, cumulatively contributed to the adjustment disorder. For the reasons given in the paragraphs leading up to this finding which rely principally on the evidence of Dr Champion I am satisfied that it was the "promotion related episodes" which led to Ms Hart's adjustment disorder.
77. But the question arises which "promotion related episodes" - those that can be seen as related to her failure to gain promotion and/or those associated incidents which form part of the broader application, interview and promotion process. It was Ms Hart's submission that it was not so much the failure to gain a promotion but the process associated with it that was critical. On the other hand Comcare argued that Ms Hart's illness was simply a result of her lack of success in obtaining promotion.
78. In his report of 4 August 2001 Dr Veness emphasised that there was no medical or psychiatric justification for attributing Ms Hart's illness solely to the question of failed promotion. Among the stressful events which contributed to her condition were the cancellation of the interview for the JSSA position, the conflicting reasons given to Ms Hart for this and the manner in which Ms Hart was questioned during the interview for the contracts and procurement position. In his oral evidence Dr Veness said that Ms Hart's failure to be selected for the particular jobs and the way she was handled in that regard were part of a series of incidents that caused her emotional state to deteriorate.
79. Neither Drs Cullen nor Eaton refer specifically to promotion related events as triggering Ms Hart's illness. However both see stresses at her place of work as being the trigger. Both of these specialists had seen her in the months soon after the promotion episodes.
80. In his written reports Dr Champion described the events that precipitated Ms Hart's illness in a number of ways. In his report of 14 August 2001 he said that there was no indication of psychiatric disorder until "after she perceived that she had been unjustly treated in relation to various applications for promotion". Further he stated "the significant cause of her current disturbed mental state derives in my opinion from her underlying personality structure and would likely have occurred in any situation which involved failing to achieve a desired objective".
81. In response to a number of questions Dr Champion attributed Ms Hart's condition to her failure to obtain promotion to several executive positions within the Department. It should be noted however that the use of the specific words "failure to obtain a promotion" in these questions was somewhat leading. In a later report of 12 February 2002 Dr Champion referred to "the events relating to her failed application for promotion" and "the reaction to missing out on a series of applications for promotion".
82. Before the Tribunal Dr Champion variously described the events that precipitated Ms Hart's "major breakdown" as "things that occurred in the promotional context", "the events in the promotion related episodes" and "the failure to gain promotion".
83. Unfortunately the specific question whether it was the mere failed promotions or the series of incidents associated with the application, interview and promotion process, including the lack of success, which caused Ms Hart’s condition was not put to either of the psychiatrists. It is however reasonably clear that Dr Veness and probably Drs Cullen and Eaton support the broader view. It is not so clear-cut with Dr Champion. Support for both the narrower and broader approach can be found in his written and oral evidence.
84. On balance I am persuaded that a number of elements materially contributed to Ms Hart's adjustment disorder. These include but are not limited to Ms Hart's failure to be promoted to the JSSA and contracts and procurement EL1 positions. I note that on Mr Watson’s evidence she was not advised of her lack of success with the financial adviser EL1 position until after she had been diagnosed with this condition.
85. The other elements which I am satisfied both occurred and contributed to a material degree to Ms Hart’s adjustment disorder are
· the cancellation of the interview for the JSSA EL1 position
· the late notification to Ms Hart of the cancellation probably on the morning of the interview
· the nature and manner of the questioning during the interview for the contracts and procurement EL1 position on 22 June 2000
· the appointment of Mr Andrew Smith, a staff member from Mr Tolano's branch, as a "independent" observer for the financial adviser EL1 interview.
86. I am therefore satisfied and find that issues related to the application, interview and promotion process as well as the actual failure to obtain promotion materially contributed to the onset of Ms Hart's adjustment disorder.
Does the “Failure to Obtain a Promotion” Exclusion Apply
87. The definition of "injury" in section 4(1) excludes from the compensation regime of the Act "any such disease, injury ... suffered by an employee as a result of ... failure by the employee to obtain a promotion ... in connection with his ... employment".
88. As I have found above, Ms Hart's failure to be promoted to the JSSA and contracts and procurement EL1 positions resulted in distress and disappointment and was a material contributor to her adjustment disorder. This failure clearly falls within the exclusion.
89. But I have also found that a number of associated incidents forming part of the broader application, interview and promotion process (the promotion related incidents) contributed to a material degree to Ms Hart's adjustment disorder. These are set out at paragraph 85. The question arises whether these also fall within the exclusion.
90. Ms Hart's complaint before the Tribunal was not her lack of success in seeking promotion but rather what she perceived as the unsatisfactory and unfair manner in which she was treated during the promotion process for the three EL1 positions. Comcare submitted that the interviews were conducted fairly and properly. For the purposes of the exclusionary provision the process could not be divorced from the outcome. If it were otherwise one could never rely upon that provision.
91. In Trewin v Comcare (1998) 156 ALR 615 Justice Heerey said at 620
“It is implicit in Drummond J's reasoning [in Mooi] that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of "injury" were satisfied, the claim would succeed.”
92. Justice Finn considered the exclusionary provision in Comcare v Ross [1996] FCA 680
“...the word "obtain" should be given its ordinary natural meaning. There clearly is no ground for asserting that it has any special or particular meaning in this context. In consequence, the attribution of that ordinary meaning is itself a question of fact for the Tribunal: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645.”
93. Having regard to the evidence which I have considered in some detail above and noting these authorities, I am of the view that the exclusion does not apply to the contribution made to Ms Hart's adjustment disorder as a result of the promotion related incidents to which I have referred above. Here the injury cannot be characterised as flowing from Ms Hart's disappointment and distress at failure to obtain a promotion.
94. Rather the injury occurred because of the upset and emotional disturbance to Ms Hart as a consequence of what she perceived to be the unfairness of the manner in which she was treated during the application, promotion and interview process. This included her misguided view that there was a conspiracy against her. It is not necessary to rely on Ms Hart's evidence to support this as the testimony of a number of others including Dr Veness and Messrs Breitkopf and Hannan demonstrate that the process caused Ms Hart considerable concern.
95. A number of earlier decisions of the Tribunal where the exclusionary provision has been considered, although not exactly on point, provide some support for the approach I have adopted: Re Gelbak and Comcare [1995] AATA 10169, Re Fitzgerald and Comcare [1995] AATA 10514, Re Parker and Comcare [1996] AATA 11298 and Re Myers v Comcare [1997] AATA 11756. I note in particular the following passage from Re Myers
“What is excluded from the definition of injury is a disease suffered as a result of a failure to obtain a promotion, transfer or benefit after the processes have been pursued to determine whether or not the employee shall obtain the promotion, transfer or benefit.” (Emphasis added)
96. In any event it would be far too narrow an approach to the evidence in this case to say that the illness suffered by Ms Hart was solely as a consequence of her failure to obtain a promotion. To do so would be to disregard the existence of multiple concurrent causes which contributed materially to her adjustment disorder even if the failure to obtain a promotion was one of those causes. Any other conclusion would be inconsistent with the beneficial nature of the Act.
Is Ms Hart Entitled to Compensation
97. Section 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work.
98. I have found that Ms Hart suffers from an adjustment disorder to which a series of work related incidents contributed. A number of these incidents - the promotion related incidents - do not fall within the exclusion to the definition of "injury" in section 4(1) of the Act. Ms Hart has therefore suffered an “injury” for the purposes of section 14(1).
99. During the course of the hearing Comcare conceded that Ms Hart was incapacitated for work as a result of her adjustment disorder. While Comcare does not accept that Ms Hart is incapacitated for any work (section 4(9)(a)), she is incapacitated from working at the same level at which she was engaged immediately before the onset of her condition (section 4(9)(b)). The medical evidence of both Drs Veness and Champion support this concession which I accept.
100. I therefore find that Comcare is liable to pay compensation to Ms Hart for her adjustment disorder. The reviewable decision of 4 January 2001 must accordingly be set aside.
101. On a number of occasions Mr Pilkinton for Comcare submitted that although certain incidents had occurred the behaviour and approach of the departmental officers concerned was completely appropriate and reasonable. In general I agree with him. In none of my findings apart from that concerning the independent observer have I found fault with the actions of the officers. Overall their actions have been acceptable and unexceptional.
102. On the other hand Ms Hart's responses to these incidents was generally misconceived and out of proportion, manifesting perceptions which were not based in reality. This was particularly so concerning the conspiracy she saw underlying many of her grievances.
103. Finding no fault with the actions of the departmental officers however does not help Comcare. The incidents occurred and made a material contribution to Ms Hart's condition. In Rodriguez v Telstra Corporation Limited [1999] FCA 1400 Justice Spender referred to earlier authorities which emphasised that no finding of fault was required. It did not matter if the claimant's response to incidents was irrational. More recently in Wiegand v Comcare (2002) 72 ALD 795 Justice Von Doussa said at [31]
“....there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
Further at [34]
“It is not necessary that such an incident or state of affairs is a major cause of the ailment or resulting disability. It is sufficient that an incident or state of affairs contributes in a material degree. That may be the case even when there are a number of other contributing factors, and other factors that have contributed to a greater degree.”
104. Having found that Ms Hart suffered an adjustment disorder which rendered her unable to undertake work from July-August 2000 until at least the time of the hearing of this matter, it is unnecessary to examine a series of incidents Ms Hart alleged occurred after August 2000. Nor is it necessary to consider whether they aggravated her condition.
Costs
105. This matter was originally set down for three hearing days from 25 to 27 March 2002. Shortly before 10 am on 25 March 2002 Mr Anforth provided to Mr Pilkinton a folder approximately five centimetres thick containing an annotated chronology prepared by Ms Hart and a large number of annexures. Mr Pilkinton sought an adjournment to consider the documents. He said it would be unfair to Comcare to continue without that opportunity. I agreed to that adjournment and set the matter for a directions hearing approximately one month before the new hearing date to consider the admissibility of the documents. That directions hearing was held on 16 July 2002.
106. Comcare submitted that if Ms Hart were successful before the Tribunal costs should not be awarded for the aborted first hearing and for the directions hearing.
107. Ms Hart opposed these submissions on the basis that the folder of materials was intended to assist the Tribunal. There was nothing in the folder that was not in the possession of the Department as opposed to that of Comcare. It was incumbent on Comcare to fully investigate Ms Hart's claim, including obtaining relevant records from the Department.
108. I agree with Comcare that any award of costs should not cover the three days from 25 to 27 March 2002
· the documents presented on the morning of 25 March 2002 included many new ones which required examination and consideration by Comcare
· the 28 days notice required under section 66 of the Act was not given
· a significant number of the documents turned out to be irrelevant.
109. In my view the obligation under section 37 of the Administrative Appeals Tribunal Act 1975 to lodge documents is confined to documents in the possession or under the control of the decision-maker, that is Comcare. It does not extend to documents in the possession of the employing department.
110. I do however propose to allow costs to Ms Hart for the directions hearing on 16 July 2002. The process undertaken on that day of determining the admissibility of the documents contained in the folder would have formed part of the normal course of the hearing in any event if the folder had been filed on time.
Conclusions
111. In summary I conclude that
· Ms Hart was not a credible or reliable witness and her evidence should not be accepted unless it is corroborated or uncontested
· Ms Hart suffers from a psychiatric condition described generally as an adjustment disorder
· Ms Hart first suffered this adjustment disorder around July-August 2000
· prior to the onset of this condition Ms Hart was unsuccessful in seeking promotion to two EL1 positions, one for the JSSA and the other to work on contracts and procurement
· there was also a series of incidents associated with the application, interview and promotion process for the three EL1 positions prior to the onset of Ms Hart's condition
· Ms Hart's failure to be promoted to the JSSA and contracts and procurement EL1 positions contributed to a material degree to her adjustment disorder
· in addition a number of other promotion related incidents associated with the application, interview and promotion process for the three EL1 positions were material contributors to this disorder
· these promotion related incidents do not fall within the exclusionary provision relating to failure to obtain a promotion
· Ms Hart has suffered an injury resulting in incapacity for work and is entitled to compensation under the Act
· costs awarded to Ms Hart should not cover the hearing days from 25 to 27 March 2002.
Decision
112. The reviewable decision of 4 January 2001 is set aside and in substitution the Tribunal determines that Comcare is liable to pay compensation to Ms Hart pursuant to section 14(1) of the Act for an adjustment disorder the onset of which occurred around July-August 2000.
113. The Tribunal orders Comcare to pay Ms Hart's costs as agreed or taxed, other than those for the lost hearing days of 25 to 27 March 2002.
I certify that the preceding 113 paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Sarah Rososinski]..........................................
AssociateDates of Hearing 25 March 2002, 16, 22-25 July 2002,
3-4 February 2003, 11 February 2003
Date of Decision 10 February 2004
Counsel for the Applicant Allan Anforth
Solicitor for the Applicant David Chen, Elrington Boardman Allport
Counsel for the Respondent Stuart Pilkinton
Solicitor for the Respondent Daniel Gibson, Phillips Fox
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