Hawkins and Comcare
[2011] AATA 450
•28 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2807
GENERAL ADMINISTRATIVE DIVISION ) Re Paul Hawkins Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date28 June 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate the applicant.
..................[sgd]............................
Senior Member
CATCHWORDS
COMPENSATION – depression – not in dispute that applicant’s employment contributed in material degree to his condition – whether claim excluded – whether injury was result of failure to obtain a benefit – pay increment – Tribunal not satisfied failure to obtain pay increment contributed in a material degree to applicant’s condition – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14
Hart and Comcare [2005] FCAFC 16
Dunstan and Comcare [2010] AATA 449
TAJ and Concare [2011] AATA 154
Comcare v Sahu-Khan (2007) 156 FCR 536
Wiegand and Comcare [2010] AATA 790
REASONS FOR DECISION
28 June 2011 Senior Member Jill Toohey Background
1. In October 2000, Paul Hawkins started work as a level 3 civilian technical officer in the ground telecommunications equipment systems program office (GTESPO) in the Department of Defence (the Department). He claims he developed depression as a result of the treatment he experienced over the course of his employment.
2. After a meeting in September 2004 at which he was told his pay increment would be deferred unless he met performance expectations, Mr Hawkins left work and did not return. His employment was terminated in April 2005.
3. In August 2008, Mr Hawkins lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for “adjustment reaction with mixed emotional features” arising out of his employment.
4. It is not in dispute in these proceedings that Mr Hawkins suffers from depression (variously described as major depressive disorder, adjustment disorder, and adjustment reaction with mixed emotional features).
5. It is no longer in dispute that Mr Hawkins’ employment contributed in a material degree to his psychiatric condition. However, the respondent contends that his condition is not a compensable injury because it resulted from his failure to obtain a benefit, namely a pay increment to which he would otherwise have been due in November 2004, and is thereby excluded from the meaning of injury in the Act.
The legislation
6. By s 14(1) of the Act, the respondent is liable to pay compensation in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
7. As it was at the material time, prior to amendment on 12 April 2007, s 4(1) of the Act defined injury as:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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) being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
8. Section 4(1) defined disease as:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
9. Ailment meant any physical or mental ailment, disorder, defect or morbid condition whether of a sudden onset or gradual development: s 4(1). There is no argument that Mr Hawkins’ condition is an ailment within the meaning of the Act.
The issue
10. I have to determine whether the respondent is liable under s 14 of the Act to compensate Mr Hawkins. In the circumstances of this case, that requires me to determine whether his claim fails by reason of the exclusion in the definition of injury. In particular, whether he suffered a psychiatric condition as a result of his failure to obtain a benefit.
The evidence
11. Mr Hawkins gave evidence before the Tribunal. Evidence was also given by Wing Commander Nigel Thompson, Squadron Leader Nicholas Grey and Flight Lieutenant Sam Wong (who has since left the Department but, for convenience, is still referred to here as Flight Lieutenant Sam Wong). Dr Inglis Synnott, a psychiatrist to whom the respondent referred Mr Hawkins for assessment, and Mr Hawkins’ general practitioner, Dr Caitlin Raschke, also gave evidence.
12. Documents in evidence include the “T-documents” filed by the respondent, medical reports and witness statements.
Mr Hawkins’ evidence
13. Mr Hawkins is 49 years old. After obtaining a trade certificate as an electrical fitter mechanic, he worked for what was then Telecom for 15 years until he was made redundant in October 1999. When he left Telecom, he was a senior telecommunications technical officer responsible for a team of eight. He says, and there is no suggestion otherwise, that he performed well at Telecom.
October 2000 to June 2003
14. Mr Hawkins claims that, over the course of his employment with the Department, he was supervised by different military and civilian staff, sometimes at the same time, who gave him inconsistent and often contradictory instructions; he was assigned duties at a higher level that his; he received little support, and no training for some time; and he was belittled by one of his supervisors in particular.
15. Mr Hawkins concedes that, as a civilian, it took some time to familiarise himself with the Department’s standards and systems, and to adjust to military culture but he felt there was “a constant eye” on what he was doing and a degree of supervision that he had not encountered previously, and that he was treated as military, rather than civilian, personnel.
16. In December 2000, the position Mr Hawkins had started in was abolished and he was transferred to a project. He says from that point his contributions were rejected or ignored, concerns he raised about work practices were dismissed, and when the project eventually finished, his supervisor criticised him for taking too long. He concedes he had some difficulty grasping certain administrative tasks but says it did not help that various military and GTESPO standards were at odds with each other.
17. Mr Hawkins claims that, in February 2001, he was talking to his supervisor when Flight Lieutenant Andrew Cox, speaking to Mr Hawkins’ supervisor, referred to Mr Hawkins as “a dumb cunt”. His supervisor said nothing and Mr Hawkins let the matter pass. He raised it later with a human resource representative and at a meeting some weeks later with two of his supervisors. He says the supervisor who had been present acknowledged the incident had occurred and was inappropriate, but nothing was done about it.
18. From March 2001, Mr Hawkins had a supervisor who was satisfied with his work but things changed when another supervisor took over who showed no interest in him and was unhelpful. From this point, Mr Hawkins claims, he was given inconsistent and contradictory instructions and was subjected to further demeaning and insulting behaviour.
19. From February 2002 to August 2002, Mr Hawkins worked on another project where he was initially supervised by Flight Lieutenant Brett Fitzhenry and then by Flight Lieutenant Nicholas Grey; their approaches were different and their instructions contradictory but he found Flight Lieutenant Grey helpful and encouraging. Flight Lieutenant Cox was also a supervisor around this time and, according to Mr Hawkins, enjoyed making his life difficult.
20. In August 2002, Mr Hawkins took approximately three weeks sick leave. He says this was on account of the continuing inconsistent instructions from his supervisors and demeaning treatment by Flight Lieutenant Cox. He saw his general practitioner, Dr Caitlin Raschke, who advised him to take leave and issued a Workcover certificate for the period 5 August to 5 September.
21. On 14 August 2002, Mr Hawkins sent an email to Flight Lieutenant Grey advising that he had been placed on extended leave “due to circumstances surrounding my place of work”. In response, Squadron Leader Nigel Nelson and Flight Lieutenant Grey arranged to meet with Mr Hawkins. He says that, at that meeting, Squadron Leader Nelson advised him a compensation claim would be “too hard” and he would be best to let it go. Mr Hawkins says that, on the assurance that things would be different on his return, he did not pursue the claim and returned to work. However, nothing changed.
22. In January 2003, Flight Lieutenant Nigel Chia became Mr Hawkins’ supervisor. He trusted Mr Hawkins’ experience and encouraged him to contribute. Mr Hawkins describes Flight Lieutenant Chia as “marvellous”.
June 2003 to April 2005
23. In June 2003, Flight Lieutenant Chia was transferred and Flight Lieutenant Sam Wong became Mr Hawkins’ supervisor. Mr Hawkins claims Flight Lieutenant Wong belittled him and took every opportunity to criticise his work including in front of other staff; he made fun of his background and the church he attended in front of others; he ignored or rejected his work without justification, raised his voice at him and followed him around the building; he sent emails even though his desk was nearby, rather than speaking to Mr Hawkins; and he would make notes in his diary when things happened that involved Mr Hawkins.
24. Mr Hawkins says on one occasion Flight Lieutenant Wong took him into a closed office where he raised his voice, held his hand up, poked his finger at him and told him he was to do as he was told. On another occasion, he accused Mr Hawkins of using Departmental equipment for personal use when he printed a private email; he accused him of printing coloured posters for personal use; and on another occasion criticised him for reading material concerning his church during his lunch break.
25. On another occasion, Mr Hawkins says, Flight Lieutenant Wong sent an email to the team, praising or commenting on others’ work but making critical comments about Mr Hawkins’ work in a derogatory way in red, enlarged font. (This email is not in evidence and the email that Mr Hawkins claims meets this description does not obviously do so).
26. Mr Hawkins claims Flight Lieutenant Wong was unnecessarily pedantic in correcting documents he prepared, constantly making minor changes, even when his document was based on one by someone else that had previously been approved. One such document is in evidence. Before the Tribunal, Mr Hawkins conceded it was not well written and contained mistakes, and he agreed that Flight Lieutenant Wong’s comments on it were not “nitpicking and trivial fault finding”. However, he said, it was merely a note concerning the end of a project “just to go on file” and not, for example, for submission to a higher officer.
27. Mr Hawkins agreed in evidence that he was late “in Flight Lieutenant Wong’s eyes” on a number of occasions between March and May 2004 and that Flight Lieutenant Wong had raised his attendance with him but he was within the times permitted by the Department’s certified agreement for civilian staff. He agreed he took personal calls from his mother occasionally, and that Flight Lieutenant Wong had raised this with him as well, but he had told her not to call him at work. He denied printing coloured posters.
28. On 12 August 2004, at his six-monthly performance review, Flight Lieutenant Wong told Mr Hawkins he was “an underperformer”, he was failing to adhere to air force values and he was to be placed on monthly reviews.
Meeting on 8 September 2004
29. On 8 September 2004, Mr Hawkins was asked to attend a meeting with Wing Commander Nigel Thomson and Squadron Leader Nigel Nelson about his performance review.
30. Wing Commander Thomson referred to the monthly reviews currently in place “to address issues with your performance that include your writing skills, workplace attendance, application to duties and consistency of performance”. Mr Hawkins says he had had no regular contact with Wing Commander Thompson prior to the meeting and “it was like hearing Sam Wong speaking”.
31. Mr Hawkins says the meeting went for nearly an hour during which he explained his version of events at length. At the end of the meeting he was asked to sign a record of the conversation which included none of what he had said.
32. The document signed by Mr Hawkins is in evidence. It is headed “Record of Conversation” but, other than the last paragraph, it is plainly not a record of the conversation but, rather, a form of script of matters to be raised with Mr Hawkins. Wing Commander Thompson agreed in evidence that the document was prepared before the meeting and did not reflect a “dictated verbatim copy of, or a transcript of, the interview”.
33. The document states that, sometime in the next six weeks, a decision would be made about Mr Hawkins’ “performance progression”; if expectations were not met before then, “I intend to defer the decision until such time as this outcome has been achieved.”
34. The last paragraph states:
Mr Hawkins advised that he has a number of issues with his working relationship with his supervisor that relate to the management of his Performance Agreement. I advised Mr Hawkins that he is entitled to address these formally or call upon these issues if he wishes to contest any decision to defer performance progression.
35. Wing Commander Thomson told Mr Hawkins he would be on monthly reporting for three months after which he would be reviewed by a higher level supervisor; if there was no improvement he would be reviewed again. He told Mr Hawkins that a higher level directive had come down that underperformers were to be identified and looked at as potential candidates for “staff shedding”. He advised Mr Hawkins that his pay increment, which was due in November, would be held up until after further review.
After the meeting
36. Mr Hawkins says he left the meeting angry and distressed that Flight Lieutenant Wong had picked on so many “petty things” and taken them to a higher level, and that his own explanation had fallen on deaf ears. He says the fact that his pay would be held up “wasn’t the problem at all. It was only a few dollars a week. It was the fact that Sam Wong had again – had used the system to have a go at me in a more official manner”.
37. Mr Hawkins rang Dr Raschke from work. She was not available for a couple of days and so he went home. He did not return to work. He submitted a number of medical certificates from Dr Raschke which the Department’s human resources manager rejected on the ground that they stated only that he had a “medical condition”. His pay was stopped but was restored after the Department decided to accept the medical certificates.
38. Towards the end of 2004, Mr Hawkins saw Dr Sandra McBurnie of Health Services Australia, and Dr Puru Sagar psychiatrist, at the request of the respondent. Dr McBurnie reported that it was unlikely there would be a “durable return to work until workplace issues are addressed”. Dr Sagar reported that he should not return to work.
39. In December 2004, the Department advised Mr Hawkins that he was considered a “medical redeploy” and was eligible for permanent transfer, and a rehabilitation provider would contact him shortly. For reasons which are not clear, in February 2005 the Department advised this was no longer the case and Mr Hawkins was required to see Dr Inglis Synnott, a consultant psychiatrist, for assessment of his fitness for work.
40. Mr Hawkins saw Dr Synnott on 15 February 2005. On 22 February 2005, Dr Synnott reported that, although Mr Hawkins was experiencing psychological distress, he did not have a psychiatric disorder; “from a strictly psychiatric perspective”, he was fit to return to work full-time at the Department but he did not wish to do so and it would only be a successful return if outside the Department.
41. In April 2005, after he failed to return to work, Mr Hawkins’ employment was terminated. From there, his health deteriorated rapidly. He spent about six months in bed and cut himself off from family, friends and his church. He saw Dr Larry Brash, a consultant psychiatrist, twice around 2005 but decided against further treatment. He also saw a psychologist, Dr Nicholas, for a time, and he continues to see Dr Raschke. He has tried different medications with little effect. He has shown some improvement but has never really recovered, and he remains depressed and anxious.
42. As noted above, the respondent accepts that Mr Hawkins’ employment contributed in a material degree to his condition. At issue is whether his condition is excluded from compensation because it was a result of his failure to obtain a benefit, being the pay increment.
Evidence of Wing Commander Thompson
43. Wing Commander Thompson gave evidence that he did not have a direct, working relationship with Mr Hawkins. He said “I would have passed him in the corridor or seen him in the tea room. On a weekly basis, I met with him less occasionally. With staff at his level, I rarely dealt with him in formal meetings.”
44. Wing Commander Thompson was aware that Mr Hawkins had been subject to performance management over a period of months and he had seen samples of his work provided by Flight Lieutenant Wong on two or three occasions. He knew that a number of people including Squadron Leader Nelson and a human resources manager were involved in Mr Hawkins’ performance management and they were “apprising [him] of the steps that Flight Lieutenant was taking and the appropriateness of it.”
45. Wing Commander Thompson described the “Record of Conversation” of the meeting on 8 September 2004 as “the standard type of record of a meeting of that type”. He agreed that it was prepared before the meeting started but he believed the last paragraph was added after the meeting; it was not a record of the interaction at the meeting between him and Mr Hawkins. He could not recall Mr Hawkins raising specific complaints about Flight Lieutenant Wong at the meeting.
46. In relation to “shedding” of underperformers in the organisation, Wing Commander Thompson said “Dr Gumley’s view was that there were people in the organisation who were underperforming and the organisation had been neglecting its obligations to deal with [them] appropriately.” However, he disputed Mr Hawkins’ claim that he told him at the meeting that those who were subject to performance review would be looked at as potential candidates for “staff shedding”.
47. Asked whether Mr Hawkins complained at the meeting that he would be deprived of the forthcoming pay increment, Wing Commander Thompson confirmed that he did not; his concern was with the fairness of what was being done overall:
[H]e “reluctantly agreed that his performance progression was likely to be deferred on the basis of what was happening with his performance management. The nature of his complaints were that the work performance expectations that were being placed upon him, and which were the basis of the performance management, there was a disagreement between himself and Mr Wong, Mr Nelson and myself”
Evidence of Squadron Leader Grey
48. Squadron Leader Grey said in evidence the he considered he had a “good working relationship” with Mr Hawkins because he treated him well. He could not recall hearing about an incident where another officer had referred to Mr Hawkins as “a dumb cunt”.
49. Squadron Leader Grey agreed that he may have discussed with Mr Hawkins the issue of inconsistent instructions being given between him (Squadron Leader Grey) and Flight Lieutenant Cox about what was to be done that resulted in Mr Hawkins having to do jobs over because he and Flight Lieutenant Cox had a different style or wanted different things done. He conceded that he would expect Mr Hawkins to have some frustration with that.
Evidence of Flight Lieutenant Wong
50. In a written statement of evidence, Flight Lieutenant Wong stated that, from late 2003, Mr Hawkins was not meeting deadlines; he would have irregular work hours, would not call in if he was going to be late and filled in time sheets incorrectly; and he failed to meet deadlines. In November 2003 “he was printing things off” for his outside business and was “printing colour posters” on the laser printer. He denied criticising Mr Hawkins’ work and denied abusing him.
51. In oral evidence, Flight Lieutenant Wong said that, initially, he and Mr Hawkins got along “fairly well” but things became tense and “there was a little bit of frustration” when Mr Hawkins was unable to deliver work as expected. However, he disputed much of Mr Hawkins’ account of events at work. In particular, he denied ever raising his voice or his hand at Mr Hawkins or confronting him aggressively, and he denied laughing at him or making derogatory comments.
52. In cross-examination, Flight Lieutenant Wong agreed there was only one occasion when Mr Hawkins used a printer for personal use and that was to print a one-page colour document. He agreed he told Mr Hawkins it was “easily a sackable offence” that he would overlook on that occasion. He conceded that Mr Hawkins would not have been the only person to use a printer for personal use but said it was “well known” that he had a business outside work, and a number of staff had brought the matter to his attention.
53. Flight Lieutenant Wong agreed that he was advising his supervisors that Mr Hawkins was not at work when he should have been, when it was “technically correct” that he was arriving at times permitted under the Department’s certified agreement. However, he said, he had a “duty of care” to know if Mr Hawkins would be arriving after 8.00am, and Mr Hawkins was not meeting his required hours at work. I note that there is no evidence before the Tribunal that he was not meeting his required hours.
54. In evidence before the Tribunal, Flight Lieutenant Wong did not recall making it clear to Mr Hawkins that his pay increment might be at risk and he agreed that Mr Hawkins did not raise with him any concern to that effect.
55. Flight Lieutenant Wong agreed that what he told Squadron Leader Nelson and Wing Commander Thompson about Mr Hawkins was “almost uniformly negative”. He agreed that, towards the end, his style with Mr Hawkins became “formal and rigid and nitpicky” but said he had to set “some fairly rigid guidelines”. He conceded it was possible that his style did not work well with Mr Hawkins and that it was “a likely possibility” that their “chemistry” did not mix. Flight Lieutenant Wong nevertheless maintained that he was not aware that Mr Hawkins had a problem with his management style until after he had left the Department.
56. It is clear that Flight Lieutenant Wong and Mr Hawkins had difficulties from early in their working relationship. The overall impression I gained of Flight Lieutenant Wong is of a meticulous person who takes his duties seriously but who is inflexible and could be heavy-handed, and was especially so with Mr Hawkins.
Evidence of Dr Synnott
57. Dr Synnott saw Mr Hawkins in February 2005 and June 2010, and has prepared three written reports.
58. When he saw Mr Hawkins in February 2005, Dr Synnott did not think he had any psychiatric condition. When he saw him in June 2010, he thought Mr Hawkins was suffering from major depressive disorder, unrelated to his work. On both occasions, Dr Synnott noted similar symptoms.
59. Before the Tribunal, Dr Synnott agreed that he recorded similar symptoms on both occasions but said there were some “subtle differences”, and different contexts, that led to his different diagnoses. So, for example, when he saw him in February 2005, Mr Hawkins said he would never go back to work at the Department but he could do other work and he had done a good job up until he left. In light of these statements, Dr Synnott did not think he had depression. In contrast, in June 2010, Mr Hawkins could no longer work.
60. In his report of 22 February 2005, Dr Synnott refers to the circumstances in which Mr Hawkins left work. He recorded that Mr Hawkins told him that, at the meeting on 8 September 2004, the Wing Commander told him his pay increment would be held back and if there was not a substantial improvement within a month and he could lose his job. He recorded that Mr Hawkins left work that day and did not return.
61. Dr Synnott gave evidence that, in his opinion, Mr Hawkins left his employment because he was angry and upset about what he had been told at the meeting on 8 September 2005 about not getting the pay increment. He said Mr Hawkins told him he had a problem with the increment. When pressed, he said he had gained that impression from Mr Hawkins’ account.
62. Mr Hawkins does not deny mentioning the increment to Dr Synnott but he denies that it was of any significance to him.
63. Mr Hawkins takes issue with Dr Synnott’s assessment in several respects. Firstly, Dr Synnott did not allow him to see the written material he had been provided with by the Department even though he had a letter from the Department which indicated he was allowed to see any of the material which Dr Synnott had. Dr Synnott gave evidence that that is his usual practice. Nothing in particular turns on this point.
64. More significantly to Mr Hawkins, he learned on the day after his appointment with Dr Synnott in February 2005 that Dr Synnott had met with Departmental personnel just prior to his appointment. Dr Synnott referred to this meeting in his report dated 22 February 2005, stating that, on the day of Mr Hawkins’ appointment, he met with “a delegation” from the Department comprising Squadron Leader Nigel Nelson, Phillip Cooper (Mr Hawkins’ case manager) and Roger Macrury from the Department’s personnel section, at which “the observations and opinions of the members of the delegation were outlined” to him.
65. Dr Synnott gave evidence that his recollection was that this meeting took less than half an hour. He said such a meeting is not unusual; basically, “they” reiterated what had been provided in written material and explained what the situation was but were quite clear that they wanted him to come to his own conclusions about Mr Hawkins.
66. Dr Synnott did not disclose to Mr Hawkins that the meeting had just occurred. Mr Hawkins learned about the meeting the next day when talking with Mr Cooper. He was not happy and says he raised the matter with Dr Synnott when he saw him on the second occasion. Dr Synnott disputes this. In the end, nothing in particular turns on this point.
67. However, even if such a meeting was not unusual, it is difficult to see that three Departmental persons would travel to Sydney only to reiterate information already provided. There is no record of what was said available to the Tribunal. Mr Hawkins denies saying to Dr Synnott that the pay caused him a problem. There is a distinct possibility that Dr Synnott gained that impression from his discussion with the Departmental personnel.
68. In relation to the matter I have to determine, I place no weight on Dr Synnott’s evidence.
Evidence of Dr Raschke
69. Dr Raschke has been Mr Hawkins’ general practitioner for nearly 20 years. She gave evidence that during the 1990s, in particular the late 1990s, he experienced some anxiety and depression on a number of occasions. She thought his symptoms were a reaction to various things that were happening in his life (not related to work), but were not chronic or ongoing. She noted that there was also some depression in 1999 in relation to a motor vehicle accident.
70. According to Dr Raschke’s clinical notes, in June 2001 she recorded:
Feels affected by work pressures; feels his workmates are staid in their ways; feels if he suggested different ways to do things, he was told he was wrong. He had complaints made about him. A meeting was organised at work, which he felt went well but his squadron leader was unhelpful. Another workmate tried to prolong his probationary period. Said he had little technical experience. He no longer works with this man. Paul feels if he tells people an easier way to do things, they just don’t do it like that.
71. In March 2002, Dr Raschke noted that Mr Hawkins was still having problems at work. He was called names; “basically, he was called ‘dumb’, he was called ‘a faggot’.” According to her notes:
He felt he was treated differently in the RAAF because he wasn’t an ex-RAFI. He felt he was continually being analysed; feels conspicuous; one report was nasty – and broke the rules of public service. The last report implied his performance is not up to scratch; unable to go to work due to feeling unwell, partly due to stress this week, and his mother’s illness. He had to complete a certain task today and has another one in three weeks. Feels it’s unreasonable to have been in that position when this doesn’t happen to others.
72. In July 2002, Dr Raschke says she talked to Mr Hawkins talked about how “he wasn’t getting any credit for doing things well at work, how he feels he’s insulted frequently and feels he’s treated badly because he’s not ex-uniform”. She says she talked to him periodically “when he just felt down or frustrated”.
73. In notes made in August 2002, Dr Raschke wrote that she thought a “psych” should review Mr Hawkins. (She was not sure whether her note meant he should see a psychologist or a psychiatrist).
74. Over the next couple of years, Dr Raschke thought Mr Hawkins was not “travelling well”. She says:
in the first sort of ten years that I had known him, I thought he seemed to enjoy work and take pride in it, and felt like he did it well, and that his competence was just continually questioned in the next job, which was a source of frustration and sadness to him. I’ve felt that we had had discussions about how he was bullied and denigrated. So I thought he gradually became more anxious, and had episodes where he couldn’t go to work, couldn’t sleep, because it was so upsetting for him.
75. On 15 September 2004, Dr Raschke recorded that Mr Hawkins “does not feel depressed but feels unable to go to work since it’s happened”. She thought he had been going downhill over a period and felt he’d been singled out. She thought it had made him unwell.
76. On 22 September 2005, Dr Raschke thought Mr Hawkins was “more anxious, more frightened; he was frustrated by the back and forth emails which were another source of frustration; and there’s more emphasis on how damaged he felt from what had been done to him.” She noted:
They now seem to feel his only issue is the pay increment, but this is not his issue.
77. Dr Raschke gave evidence that she must have discussed the relevance of the pay increment with Mr Hawkins, but she did not recall that it was “a big deal”. She went on to say:
I just don’t think that was – my recollection is that the main issue was his competence being questioned unfairly, and being called names, and being bullied and singled out; that’s my recollection.
78. Dr Raschke could not recall Mr Hawkins talking about the increment again.
Consideration
79. Mr Hawkins’ claim turns on whether his psychiatric condition was the result of his failure to obtain a benefit, namely the pay increment to which he would otherwise have been due in November 2004. There is no argument that a pay increment is a benefit in connection with employment within the meaning of s 4(1).
80. Mr Hawkins impressed me as a truthful witness. He struggled at times to recall details but I do not think that detracted from the credibility of his evidence.
81. The evidence shows that there had been some concerns about Mr Hawkins’ performance for some time, possibly from soon after he started at the Department. He sees matters differently and I accept that is his honest belief. From his point of view, he was unfairly dealt with over a long period, and more so once Flight Lieutenant Wong was his supervisor.
82. By June 2001, Mr Hawkins was telling Dr Raschke about pressures at work. By March 2002, he reported being called names at work. From some time in 2002, Dr Raschke thought he was “not travelling well”. By August 2002, he had three weeks off work because of the way he considered he was being supervised and treated. By September 2002, Dr Raschke identified his as feeling “more anxious, more frightened” and “frustrated”.
83. There were clearly differences and tensions between Mr Hawkins and Flight Lieutenant Wong almost from the beginning of their working relationship. By Flight Lieutenant Wong’s own evidence, their personalities did not mix well.
84. The evidence shows that Mr Hawkins was feeling increasingly frustrated with his work and what he perceived to be unfair treatment. Whether he was entirely justified in that feeling or not, matters culminated in the meeting on 8 September 2004.
85. The evidence about that meeting, from Mr Hawkins and Wing Commander Thompson is that he made no complaint about the prospect of his increment being deferred. Wing Commander Thompson agreed that Mr Hawkins was concerned about his treatment overall.
86. Mr Hawkins’ evidence was that the pay increment was not a problem, it was “only a few extra dollars a week”. Nothing in the Act requires that a benefit be large or important; even a small increment could make a material contribution to a condition. However, in the context of Mr Hawkins’ feelings about everything else that was happening, that it was small lends weight to his claim that the increment was of no significance to him, making it less likely that it played any significant role in the development of his condition.
87. The only evidence suggesting that the deferral of his increment was a matter of significance to Mr Hawkins is from Dr Synnott who had the “impression” that it was the reason he left work. For the reasons already discussed, I place no weight on Dr Synnott’s opinion in this regard.
88. In contrast, Dr Raschke, who had seen Mr Hawkins throughout his employment with the Department, specifically noted that the pay increment was not Mr Hawkins’ issue.
89. Section 4(1) requires a causal connection (“as a result of”) between the injury and the failure to obtain a promotion, transfer or benefit in connection with the applicant’s employment.
90. In Hart and Comcare [2005] FCAFC 16 the Full Federal Court considered the case where an injury was attributable to several causes, including the failure to obtain a promotion, and found that the exclusion applies where such failure materially contributed to the applicant’s condition.
91. The meaning of “material” in this context has been considered by the Tribunal in a number of cases. In Dunstan and Comcare [2010] AATA 449 and TAJ and Concare [2011] AATA 154 the Tribunal applied the test expounded in Comcare v Sahu-Khan (2007) 156 FCR 536 where Finn J said (at 13) the word material “imposes and ‘evaluative” threshold below which a causal connection may be disregarded”. Considering where that threshold lies, Finn J said (at 16):
92.
… probably the best that can ultimately be said is that the s 4 definition:
(a) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(b) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(c) whether this will be so in a given case will be a matter of fact and degree.
93. In Wiegand and Comcare [2010] AATA 790, the Tribunal (Justice Downes presiding) expressed caution (at para 72) about importing the notion of “material contribution” into the plain language of the statute:
Applying a “material contribution” test may facilitate a determination whether the disqualifying proviso in the definition of “injury” in s 4(1) is attracted. However, we must observe the warning in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 311 [92] (per Hayne and Heydon JJ; see also Kirby J at 295 [25]) that “decided cases... must not be permitted to distract attention from the language of the applicable statute or statutes.” In the present case the statute requires us to determine whether the psychiatric condition was “suffered... as a result of reasonable disciplinary action... or failure... to obtain a promotion, transfer or benefit...”. Where the words of a section are “perfectly clear”, as they are here, the preferable course is generally “to ask the question in terms of the language of the legislation itself, rather than any adaptation of it” (McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at 468 [131] per Callinan and Heydon JJ).
94. In the circumstances of that case, the Tribunal concluded that, whether by reference to the precise words of the section or by applying a “material contribution” test, the conclusion was the same. I would say the same of Mr Hawkins’ application.
95. In all the circumstances of Mr Hawkins’ employment with the Department, in particular the sense of grievance he had felt for several years over a range of matters and his worsening psychological condition over that period, I am not satisfied that there was more than a temporal connection between the deferral (or denial) of his pay increment and his leaving the Department, or between his failure to obtain that benefit and the development of his psychiatric condition. I am not satisfied, on the evidence, that there was the causal connection necessary to exclude his claim for compensation. His condition deteriorated badly after he left work but I am not satisfied that it was as a result of his failure to obtain the increment. I accept it was because of what he saw as unfair treatment generally which culminated in the meeting on 8 September 2004. To the extent that the pay increment played any part in his condition, I am satisfied that it was insignificant.
Conclusion
96. The decision under review is set aside and the following decision substituted for it:
The respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Mr Hawkins for his “adjustment reaction with mixed emotional features” arising out of his employment.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey
Signed: .....................[sgd]..........................................................
Diana Weston, AssociateDates of Hearing 15 and 16 March and 16 May 2011
Date of Decision 28 June 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Mr C Stewart, Whitelaw McDonald
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Ms A Bortone, Sparke Helmore
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