Ilian and Comcare
[2006] AATA 148
•23 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/472
GENERAL ADMINISTRATIVE DIVISION ) Re TITA ILIAN Applicant
And COMCARE Respondent
DECISION
Tribunal Deputy President S D Hotop
Ms L Tovey, Member
Dr D Weerasooriya, MemberDate 23 February 2006
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 8 November 2004 and, in substitution therefor, decides that the respondent is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, aggravation of major depressive disorder, suffered by her on or about 22 April 2004.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
... Sgd [S D Hotop]..............
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees – applicant employed by Australian Broadcasting Corporation (“ABC”) – applicant absent from work on maternity and other leave from September 2001 to January 2004 – applicant suffered postnatal depression during leave – applicant returned to work in January 2004 – applicant worked at ABC until April 2004 – applicant diagnosed as suffering from major depressive disorder – applicant has been absent from work from 22 April 2004 to date – applicant’s employment by ABC contributed in material degree to aggravation of applicant’s major depressive disorder – aggravation of major depressive disorder not suffered by applicant as result of reasonable disciplinary action or failure to obtain benefit - aggravation of applicant’s major depressive disorder an injury resulting in impairment and incapacity for work – respondent liable to pay compensation to applicant in respect of that injury – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 and s 14
Re Albanese and Comcare [2004] AATA 768
Comcare v Ross (1996) 680 FCA 1
Re Davill and Australian Postal Corporation AAT Decision No 10629, 22 December 1995
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
23 February 2006 Deputy President S D Hotop
Ms L Tovey, Member
Dr D Weerasooriya, MemberIntroduction
1. The applicant has been employed by the Australian Broadcasting Corporation (“ABC”) since 1980 and was appointed as a full-time permanent employee in January 1984.
2. On 10 September 2001 the applicant commenced maternity leave. Before returning to work she also had periods of recreation leave, long service leave, leave without pay and sick leave, and a further period of maternity leave. She eventually returned to work at the ABC on 21 January 2004.
3. The applicant then worked at the ABC until 21 April 2004 but, although she continues to be an employee of the ABC, she has not returned to work at the ABC since that date.
4. On 18 May 2004 the applicant lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of a condition described as “severe depressive disorder” which she claimed to have sustained on 22 April 2004 and which she claimed was caused by:
“unfair and discriminating treatment in the workplace including the failure to place in my original position following my return from maternity leave, the failure to provide me with meaningful jobs or duties commensurate with my level of skill and experience, victimisation in the form of excessive and invasive supervision, ‘nitpicking’ and humiliation in front of others.” (sic)
5. On 13 August 2004 a delegate of the respondent made a determination that the respondent was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of her depressive disorder. That determination was affirmed in a “reviewable decision” made under s 62 of the SRC Act on 8 November 2004.
6. The applicant has applied to the Tribunal for a review of the “reviewable decision” of 8 November 2004.
The Issue and the Tribunal’s Determination
7. The general issue for the Tribunal’s determination is whether the respondent is liable, under s 14 of the SRC Act, to pay compensation to the applicant. For the reasons which follow, the Tribunal has determined that the respondent is liable, under s 14 of the SRC Act, to pay compensation to the applicant in respect of an injury, namely, “aggravation of major depressive disorder”.
The Relevant Legislation
8. Section 14(1) of the SRC Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Section 4 of the SRC Act relevantly provides:
“(1) In this Act, unless the contrary intention appears:
...
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(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.
...
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(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.
...
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
...”
The Applicant’s Evidence
9. The applicant tendered in evidence her witness statement dated 2 August 2005 (Exhibit A2) and she also gave oral evidence. The applicant’s witness statement, as amended by her oral evidence, is as follows:
“...
2. I was employed by the ABC, as the TV Resources Coordinator for ABW2. I was appointed on a full time, permanent basis. As at 30 June 2001 my position number was P1509495 and I was working 36.75 hours per week. My job was titled ‘Production Resources Coordinator’. In my position I reported directly to the head of WA Production Resources. I was required to provide administrative assistance to the Head of TV Production Resources Perth.
3. I reported directly to the Head of Production Resources WA. I coordinated bookings, rosters and administration of the daily supplies, labour and facilities for production and assistance with new and existing bookings. I produced reports on resources, and maintained booking schedules, managed seven rosters across several different awards, coordinated and informed staff and management of performance assessment meetings, prepared time tables for professional assessments and the necessary paperwork for assessments, processed and maintained local records for the Senior Management. This included the Head of Technical Services, Head of TV Transmission, Finance Manager, Manager News/Current Affairs, Studio/Outside Broadcast Manager, Production Managers, Senior Technical Producer and Technical Producers, Production Resources Staff, Technical staff and provide back up for production unit (sic).
4. I also maintained and coordinated finance, SAP procurements, petty cash, credit card accounts, cab charge, telephone billing, travel expenses, invoicing, salary estimates, general operational expenses, salary reports and mobile phone logistics.
5. I kept records of staff entitlements, leave, ADO’s (days off) and staff contracts. I coordinated work experience programs, provided advice to staff on working conditions and departmental policy and procedures. I provided administrative assistance to the Head of TV Resources including preparation of reports, submissions and correspondence and undertaking special projects. I was the central point for all queries to TV Resources and also fulfilled duties such as filing, mail, typing and assets management.
6. I got along well with the vast majority of the workforce at the ABC and thoroughly enjoyed my long career with the ABC. I had received no complaints regarding my performance.
7. In 1999 my then manager Stephen Johnston indicated to me that my role was consistent with that of a Band 5 under the 1999 Enterprise Bargaining Agreement. He told me that he had spoken to Kerry Gledhill, (the then HR Manager), about this and was told that he needed to write a report on my job description and then commence a formal process for review of the position. He and I together commenced preparation of my job description and we were both confident that the description supported a Band 5 allocation. However Mr Johnston then went on leave, and left the ABC to be replaced by John O’Brien.
8. When Mr O’Brien took over as my manager, I mentioned to him on a number of occasions that I was aware that my equivalent position was designated Band 5 in other States and that I expected to pursue the process to have my level reviewed as discussed with Mr Johnston.
9. I was due to undergo a performance management process with John O’Brien in March 2001. My performance management did not take place. I asked Mr O’Brien when this would occur. His response was that he was behind with all performance managements.
10. In about April or May 2001 I advised Mr O’Brien and others verbally at ABC that I was pregnant. On 30 August 2001 I applied for a combination of maternity leave, recreation leave, long service leave and leave without pay commencing on 10 September 2001 to 8 September 2002. At that stage I still had not undergone performance management or had my position reviewed despite numerous requests.
11. Finally, in September 2001, immediately before I was due to commence leave, my performance management meeting was arranged. My immediate manager was John O’Brien and I understood that he would attend the meeting with me, as in all previous years it was his (O’Brien’s) predecessor who conducted the meeting. However on the day I was scheduled to undergo performance management, it was not Mr O’Brien who conducted the meeting, but Fiona Herbert (Holden). Fiona was not my manager. Mr O’Brien had made no mention to me at any time that Fiona would be conducting the meeting and not himself, nor did he explain why this was to be the case.
12. During my meeting with Fiona Herbert I asked that my job plan be reviewed so that my salary Band classification could be revised upward to Band 5. Fiona and I worked through my various duties and skills and drafted a job plan at Band 5. Fiona did not indicate to me that she did not consider Band 5 to be appropriate. She did however say that she did not expect Mr O’Brien to approve it.
13. The job plan drafted by Fiona and I was then forwarded to John O’Brien for approval. On my last day of work before commencing maternity leave, 10 September 2001, Mr O’Brien gave me the finalised job plan, which was designated Band 4, and not Band 5 as agreed between Fiona and myself.
14. On about 13 September 2001 I appealed from Mr O’Brien’s decision in relation to my job plan in accordance with Section 18.7.2 of the ABC Employment Agreement. I argued that the skills set required of my position was in line with Band 5. At the time I lodged the Appeal I had just commenced maternity leave but had not yet had my child.
15. I did not receive a response to my letter of appeal to John O’Brien until 27 November 2001. In the meantime, I sent an e-mail to John O’Brien requesting a response.
16. On about 27 November 2002 I received John O’Brien’s response to my appeal. Mr O’Brien refused to assess me at Band 5 as requested and my job plan was set at Band 4 level. In the meantime, my daughter was born on 5 October 2001.
17. The result of any revision of the Band level is that a commensurate pay increase comes into effect after 12 months of satisfactory performance of the job plan. Had my performance management meeting been conducted correctly, I would have qualified for a pay increment as at 26 March 2002. O’Brien had the power to grant the increase, with immediate effect.
18. I was due to return to work in September 2002. However in the meantime I became pregnant in June 2002. I also suffered from antenatal depression and was unfit for work from September 2002 to February 2003. I notified the ABC in November 2002 of my intention to take a further period of maternity leave form 29 January 2003 to 21 January 2004. My son was born on 28 February 2003.
19. In August 2003 I contacted Mr O’Brien to confirm that I was due to return from maternity leave in January 2004 and to discuss my return to work. I told him that I was returning to work full time, that I was doing well and was interested in coming in to work before January to look around and see if anything had changed. Mr O’Brien suggested that we should schedule a time in December and told me that he would ask Janet Preston to contact me. However I did not hear from Janet Preston or Mr O’Brien again at all. I continued to ring the ABC, leaving messages for Mr O’Brien. I received no response. Finally, in January 2004, about 2 weeks before I was due back at work, I telephoned and spoke with Pam Oliver and she told me not to worry about coming in to work before the end of my leave, but to simply show up on 21 January 2004. She seemed keen to avoid discussing very much about my return to work with me, and I had the impression that there were no real plans in place for my return to work.
20. On 21 January 2004 I arrived at work and had a meeting with Mr O’Brien. The meeting lasted for approximately 1.5 hours. During this meeting Mr O’Brien said to me ‘your job is gone’ and ‘we have to find you some alternative duties’. I was completely shocked. I asked Mr O’Brien what my duties would be. I also asked him what my title would be. I was told that my replacement, Janet Preston, was ongoing in my ‘title’ (Production Resources Coordinator) and my duties on a permanent basis. He told me that I needed to concentrate on the ‘training’ in the new SAP software, however that software had been installed for purchasing and finance as of September 2001. I was familiar with it and did not require extensive ‘training’.
21. Mr O’Brien was vague and uncertain about what I would be doing. He didn’t appear to have any particular plan in mind. Over the next few weeks I was allocated various miscellaneous and menial tasks. I had insufficient work to fill my hours and I was sent out to other areas and was looking for things to do. I worked on familiarizing myself with the new software and felt familiar and competent within a few days.
22. My job was not ‘gone’. Janet Preston had been employed in my job. Janet commenced employment with the ABC in June 2002 specifically to fill in for me whilst I was on leave. Her title was ‘Production Resources Co-ordinator’. As far as I could observe, she was performing precisely the same duties that I performed before I commenced leave. She reported to Mr O’Brien and she was paid at Band 4 level. I am aware that Ms Preston was engaged on a fixed term contract, initially for a 6 month period, and was re-engaged on 2 further 6 month fixed period contracts, the second of which expired only 1 week before my return to work. This is contrary to what Mr O’Brien told me, that is, that Ms Preston was permanent and ongoing. At no time did Mr O’Brien or any other person assure me that I would or could return to my position as Production Resources Coordinator.
23. ...
24. I was left in the dark about what my role would be. For the first two weeks back I did training on the new SAP software (although I felt this period of training was unnecessary). Janet Preston conducted the training with me. I was familiar generally with the program but Janet Preston did not train me in the more advanced aspects of it. I felt that the training was dragged out so that I could not commence more substantive duties, perhaps because there were none for me.
25. After about 2 weeks I spoke to Kris Bathgate who was the head of Tech Services, a separate division from TV. He told me that I was going to be working for Tech Services. This came as a complete surprise to me. I then received an email from Kate Elder who worked in Tech Services saying that I was to come and do training with her.
26. I showed the email to Mr O’Brien and asked him what was going on. He confirmed that I was to work for Tech Services, and said that he had previously told me that. I disputed that he had told me, all he had said was that MCR (Master Control Radio) ‘comes under us now’. John confirmed that I was to undertake training with Tech Services and then assume duties with Tech Services.
27. I therefore commenced training with Kate Elder in Tech Services. I was also given a schedule of duties, which I was to perform in Tech Services. However as soon as this arrangement commenced, I found that I was being impeded and hindered form performing my duties by Pam Oliver and Janet Preston who commenced to intrusively supervise me and allocate miscellaneous tasks to me (for Production Resources) without consultation. The situation became confusing, as I did not know what was going on, whom I was supposed to report to or what I was supposed to be doing. Whilst I was training in Tech Services, Janet Preston and Pam Oliver would constantly ring to check that I was there (the divisions were on different floors). They would also come past for no reason other than to check on me. I was then subsequently accused by Pam Oliver of not being at my desk when she well knew that I was required to be training and performing duties in Tech Services. The only duty I was advised I was to perform in Production Resources was changes to the rosters on the notice boards.
28. Janet Preston was also sending me e-mails ‘reminding me’ to perform certain duties which were part of her duties and which no one had previously indicated I was to perform. I completed the tasks she requested of me, although I was confused as to why she was directing me to perform such tasks.
29. Janet also sent me e-mails, which she copied to John O’Brien, asking me the status of tasks she had allocated to me. On each occasion I had previously already told her that the task had been completed. I believe the e-mails were generated to make it appear that I was not performing my job (whatever that was).
30. Whilst I was training or performing duties in Tech Services, I often got calls or e-mails from Pam Oliver and Janet Preston recalling me to Production Resources to perform miscellaneous duties there. I felt as if I had been farmed out to Tech Services because I was not wanted in Production Resources, but at the same time Production Resources did want me to do certain things there at their convenience. At one stage Pam Oliver told Tech Services that I had ‘critical duties’ to perform for Production Resources. There were no such ‘critical duties’ for me at all. Everything I was asked to do was menial, usually tasks which Janet Preston should have been doing. I was therefore hampered in performing my duties for Tech Services. I was bogged down doing things for Janet, as her ‘lackey’. At the same time I sought on a number of occasions clarification from Human Resources as to what plans the ABC had for me in the long term. I was given no information. I was not told that I had a permanent position open to me to return to. I was not given any time frame for remaining in the Tech Services position.
31. On 29 March 2004 Janet Preston proposed to organise a performance appraisal. When I sought clarification, Mr O’Brien told me that I was to be assessed on my previous job plan (prepared in September 2001) for the period January 2004 to April 2004. I said that I did not agree that was appropriate, given that the period was only a 3 month period and I had not been performing the role which they purported to assess me against anyway. I note that in the meantime, I was paid as Band 3 on the basis that I had not been assessed against my Band 4 job plan as yet.
32. After seeking clarification from Human Resources, John O’Brien then changed his explanation of the proposed performance management, saying that I was to be assessed for the period September 2002 to March 2003, although I was not at work for that period at all.
33. By disallowing or preventing me from working to my job plan, I was also prevented from being assessed for my Band 4 so as to become entitled to a pay increment.
34. In the meantime I continued to request from Pam Oliver and John O’Brien confirmation of my job description and reinstatement to my previous position but my requests were either ignored or declined. I asked John O’Brien about other positions which may be available for me. He dismissed my enquiries. I met with Janet Pearce on a number of occasions and asked her whether I would get my job back, why I was not working in my position and whether I had done anything wrong. She could not assure me that I would get my job back, but did say that there were no complaints about me nor any suggestion that I had done anything wrong.
35. Janet Preston, John O’Brien and Pam Oliver however continued to harass and bully me. I was ‘pulled up’ over trivial matters, in front of other employees. For example John O’Brien alleged that I was putting ABC security at risk when my nephew was in the office and briefly showed me a shortcut in Outlook email. I was not breaching any ABC security policy. I was at the keyboard operating the PC.
36. On 21 April 2004 I attended a meeting in Tech Services. Pam Oliver asked me what happened at the meeting. The meeting did not concern her and I did not consider it appropriate for me to report to her about the meeting. She was not happy with this. She then told me that I should be prepared for certain matters to be raised in my performance appraisal, namely, lack of attention to detail, being away from my desk, falling into old ways and receipt of complaints. I believe she said this to me as a way of getting back at me for refusing to discuss the Tech Services meeting. These comments were not made in the context of a performance management meeting and she did not elaborate on them. They were made approximately 8pm that evening. This confrontation by Pam Oliver did upset me. The tone was nasty and vindictive and it was clear to me that Pam had no goodwill towards me. It was not the content of Pam’s allegations that upset me, but rather the fact that I had been struggling for weeks to have things rectified, my position back and my job plan process implemented. This confrontation with Pam Oliver left me feeling that I was getting nowhere. I had no faith that the ABC would ensure I was given my substantive position or any meaningful, dignified role.
37. I have attended the Perth Clinic for treatment on
(a) 6 May 2004
(b) 7 May 2004
(c) 25 May 2004 – 15 July 2004
and have incurred expenses totalling $3,433.00 with Perth Clinic. My sessions with Dr Assumption have cost me $3,369.95 to date.
38. Another employee of ABC, Bobbie Mackley, recently provided me with a copy of ABC’s current seating plan for the relocation to ABC’s new premises. I note that Janet Preston is allocated the title ‘Resources Coordinator’ and I am allocated the title ‘Administration Assistant’.
39. My return to work was therefore associated with a high degree of stress, embarrassment, humiliation and disappointment. It was hard enough to return to work after a lengthy absence and with two toddlers. My health gradually deteriorated until on 23 April 2004 my general practitioner told me not to return to work because of the anxiety and depression it was causing. I continue to be certified unfit for work and have been without income since 30 July 2004 when my sick leave and annual leave was exhausted.
40. I was referred by my GP to a psychiatrist Dr Ian Assumption, who diagnosed me as suffering from a depressive disorder. I continue to require regular review and treatment with Dr Assumption. I have attended a Cognitive Behavioural Therapy course and remain on anti depressant medication.
41. The effects of my treatment following my pregnancies at ABC have left me unable to cope with everyday life. My health has continued to deteriorate and I continue to seek medical advice from my general practitioner and take anti depressants prescribed for Severe Depression. I also have regular counselling through Dr Assumption. I have drastically reduced in weight and have difficulty with my speech. Sometimes I find that I cannot put a sentence together. I am teary all of the time and my relationships with my young children and my husband have been significantly affected. My daughter in particular was always very proud that her mum worked at the ABC, and she always talks about going on TV. Now she can see how upset I become and she too gets upset and this is particularly difficult for me to deal with.
...”
10. In her oral evidence the applicant said that she suffered from:
·postnatal depression, following the birth of her first child, from October 2001 to January 2002;
·antenatal depression, prior to the birth of her second child, from September 2002 to February 2003; and
·postnatal depression, following the birth of her second child, from March to May 2003.
She also confirmed that she had also suffered from depression in about 1990 because of uncertainty regarding her career and the possibility of redundancy, and had consulted Dr T Blythe, Psychiatrist, at that time.
11. The applicant’s evidence regarding the circumstances of her return to work on 21 January 2004 was as follows:
“And what happened when you returned to work on that day?—I was quite anxious that morning, of course, as you would be and excited. On arriving at work I went to my work area where I was greeted by Fiona and my replacement, Janet Preston. Pam Oliver was not there on the day she was off that day. So I thought: There goes that chat. And they all welcomed me back and all nice and everything. And they said: Oh, look, some flowers came for you and they’re on your desk. So I sort of proceeded to walk to my desk to look only there were no flowers. I said: Oh, there’s no flowers there. And they said: Oh, no, that’s not your desk any more you’re sitting over here, you’ll be doing training whatever, Janet sits there. So there were flowers there so that was the first other indication of something not right. John O’Brien then came in and welcomed me back and he was very nice and all that and he said if we could meet in his office round about 10 o’clock or 10.30 I can’t remember exactly the time. Therefore he came and got me when he was ready. We went into his office and it was at that point when I sat down and he said to the fact there had been structural changes and whatever and: Your job no longer exists. And I said: Basically what do you mean by that. He said: Your job is gone, your duties have gone, your title is gone and – and I said: How can that be? You know like: What happens to me? He says: Well, we’re obliged to give you something in the same, you know, what do you call it? In the same standing, the same grading which was the Band 3. So he referred to that there was a position but just that he didn’t know what duties there was for me and he asked that I just concentrate on training on this new SAP system. And he also told me that subsequently MCR which belonged to Tech Services, Master Control Radio which belonged to Technical Services which is the engineering department that fix the stuff, was now back with Resources. That to me meant nothing because that over the years happened back and forward so it was nothing, in my term of duties it was nothing meant nothing. Nothing more nothing less. I was quite sort of shocked at all that and expressed my thing: So okay if my job is gone and that what about the outstanding IR matter previous? And he said: Well, because your job’s gone and that’s no longer in existence that’s irrelevant.
What are you talking about? The IR---?--- Meaning my job plan that was done in 2001.
With Fiona Herbert?--- With Fiona Herbert...
...
And what did you expect to happen when you got back?---I expected him and I to sit down and work through it.
Okay?---But of course that didn’t happen because of as I previously stated.
Anything else said in this meeting with John O’Brien?---Yes. That it basically – that the job was gone, the title was gone and that because I’d been away for so long my replacement was now ongoing and permanent in the position that I was in. Even though my title and duties were gone she was now permanent.
And did John O’Brien explain why she was permanent?---Well, he blamed me because I was gone for so long that was his answer.
And this is Janet Preston?---Correct.
How long was your meeting with John O’Brien?---It lasted about an hour, an hour and a half give or take.
And what was your response or how did you respond to that meeting?---I was shocked. I mean, you know, I was shocked. My job was gone, a little bit teary. I didn’t know what I would be doing in the ABC and so on that front I took it on faith value, okay, well if it is gone but I still do have a position not all is bad. And I’ll do the training and in time I’ll find out what my title, what my duties are. So I started to do the training as he requested.”
(Transcript, pp 56-58)
12. In her oral evidence the applicant also elaborated on the discussion she had with Ms Oliver on 21 April 2004 (referred to in paragraph 36 of her witness statement) as follows:
“Was there something that instigated Ms Oliver coming to you?---Yes. Pam wanted to talk to me about extra duties that I would be doing for Tech Services that was mentioned at the meeting.
Go on?---From that, she then went on to say that she wanted to discuss a few things and it concerned my work appraisal. And by this stage it was like way past 5.30 in the afternoon and I said not a problem. So she then went on to say that there had been complaints made about me and that I had lack of attention to detail, that I had done mistakes like typographical mistakes and had been away from my desk. And on all those matters concerning the first one about complaints, I said to her: I’ve only been back three months. In all my years, I’ve never had complaints. I said: I have the right to know who complained and if it was in writing and right of reply. She then backed off and said oh, they went to John O'Brien and wouldn't go any further. As far as lack of attention to detail, she couldn't even reiterate on that either, than it sort of correlated with typographical errors. In reference to the typographical errors, I said to her: Look, I you know, no one has 100 per cent accuracy. I may have done some errors. I'm the first one to put my hand up if that is the case, I said to her, but in doing so, that I actually don't have control of the rosters or the information pre, during or after when entering the information in. Also that the codes that are used to enter the information in were somewhat - could cause errors and she had admitted to me on previous occasions that she had done the same. So on every level she sort of backed off. The bit about being away from my desk: If I went to the toilet, if I went for a drink, if I went to lunch and came back, I was there on time. If I went to another area, they knew. They knew my every movement to the point where they actually telephoned - Janet Preston would telephone to find out when I got there and when I left. If I wasn't back within the 5 minutes she would be ringing: Has Tina left? If I had to go and deliver something, she would contact those areas to see if I had actually gone there. I said to Pam, I said: I cannot believe you're sitting here and saying this to me, knowing full well that you yourself, that I - you knew my every single movement. And at that point in the meeting when I was with Pam, I was quite calm but assertive and in shock but disbelief and it was not till I left that meeting and walked out that the realisation hit me, that no matter I dotted my ‘i's’, crossed my ‘t's’, got there on time, left there after - you know, asked to work back. Was there. No matter what I did, an organisation that I worked for did not want me at all. That's what took me down. Not a matter that was from 2001 but the discrimination and the ongoing treatment that I had. That's what took me down. Not a disciplinary action or what she said but the realisation no matter what I did, I was hitting brick walls every which way.
Ms Ilian, during that meeting did Pam Oliver show you any documents?‑‑‑None.
Did she have any documents with her?‑‑‑None. She was neither taking notes while we were talking.
Okay. And how did you feel after that meeting with Pam Oliver?‑‑‑Like I said, I was in a bit of disbelief and by the time I walked out in utter disgust and disappointment in an organisation who I believed in every which way practised equal opportunity in the workplace in every which way. And yet I was being subjected to this and I still to this day don't know what - what I did wrong other than want to go back to work.”
(Transcript, pp 68-69)
13. In cross-examination the applicant was referred to a document (Exhibit R19) purportedly prepared by Ms Oliver prior to her discussion with the applicant on 21 April 2004, setting out the issues to be discussed by them. The applicant denied that that document was handed to her by Ms Oliver on 21 April 2004 and added that she had not seen that document until it had been produced in relation to these proceedings. The applicant was also referred to a document (Attachment ‘F’ to Ms Oliver’s witness statement (Exhibit R16) – see paragraph 25 below) said by Ms Oliver to comprise her notes of the abovementioned discussion, and she denied that various matters recorded in that document were discussed by them on that occasion. She also denied that she and Ms Oliver had agreed on the duties that she was to perform, and she described the contents of an e-mail sent by Ms Oliver to Janet Preston on 21 April 2004 at 8.47pm (Attachment ‘H’ to Ms Oliver’s witness statement) regarding those duties as “a total lie” (Transcript, p89).
14. The applicant confirmed that, after her meeting with Mr O’Brien upon her return to work on 21 January 2004, she discussed her work with Janet Pearce, the Human Resources Officer at the ABC. She said that she asked Ms Pearce whether, because she and Janet Preston were in effect doing the same job, there would be a redundancy for one of them. She denied, however, that she had asked Ms Pearce specifically whether there would be a redundancy available for her.
15. The applicant was referred to the clinical notes of her general practitioner, Dr A Natchimuthoo, in which it is recorded that she consulted him on 22 April 2004 and told him “that she is being persecuted at work and that she is not able to cope and not able to go in there and that she does not want to resign and would like to see some redundancy etc” (Pt of Exhibit R13). She agreed that what she had said to her general practitioner on that occasion was “along those lines” but she said that she had not used the word “persecuted”. She said, however, that she did not recall telling him that she “would like to see a redundancy” and she denied that she had wanted a redundancy from the ABC at that time.
16. Although she denied saying that she was being “persecuted” at work, she acknowledged that she had probably said that she felt that she was being bullied and harassed at work. Asked to describe the bullying and harassment which she felt she was being subjected to, she referred to the requirement that she perform “menial” tasks, “oversupervision” of her work, and the failure of her manager to do anything about resolving her employment status and duties.
17. The applicant agreed that, at the time she went on maternity leave in September 2001, there were some unresolved employment issues, namely, her “job plan”, the appropriate salary band (Band 4 or Band 5), and the timing of her performance appraisal, and that those issues remained unresolved. She said that she wanted a salary increase to Band 5 but that Mr O’Brien did not support that. She said that she disagreed with his view but did not resent him for expressing it.
18. The applicant confirmed that in August 2002 she saw a psychologist, Ms H Macartney, and told her that the thought of going back to work scared her. She added that at that time she was pregnant with her second child, had a lot of emotional issues, and did not think she would be able to cope with those matters as well as returning to work.
19. The applicant said that she also saw her general practitioner in January 2004, about 2 weeks before she returned to work, because she was “feeling a bit anxious” having been away from work for 2 ½ years. She said that over the next 2 weeks she was “still a bit nervous” but that, after a friend had taken her shopping to buy some clothes and get ready for work, she “started to get more excited” and her anxiety “subsided”.
The Lay Witnesses
Bobbie Mackley
20. Ms Mackley, WA President of the ABC Staff Union, provided a witness statement dated 4 August 2005 (Exhibit A8) and gave oral evidence. Her witness statement states (inter alia):
“...
10. In specific regard to Tina Ilian, I have known her for more than 20 years. Tina was always at the centre of things at work, had lots of friends, many of them close, was involved in social club activities, and was well-thought-of and liked by her colleagues.
11. When I saw her immediately upon her return to work in January 2004, Tina seemed happy to be back at work, said that she was not cut out to be an ‘at home mother’, talked about her childcare arrangements, and was generally fairly ‘upbeat’. However, this happier mood did not last very long.
12. When I met Tina at work on later occasions she was constantly concerned about being away from her desk for too long, saying that tabs were being kept on her movements. This ‘keeping of tabs’ is not normal practice at the ABC where staff generally are self-motivated to perform their duties in a diligent and timely manner. It was something that Tina had never before complained of. She also told me how, rather than returning to her own job, the person who had back-filled her position during her maternity leave, at Band 4 rather than her own Band 3, was still there performing what Tina considered to be her work, while she was not informed of what her new duties would be and generally felt uncomfortable, unappreciated and unwanted in the Production Resources office.”
21. Ms Mackley was shown a document which she confirmed was a floor plan of the Production Resources area in the new ABC building in Perth. That document, which is dated August 2004, indicated the locations of the staff offices and workstations and referred to the relevant staff by name and position title, including “Admin Asst Illian” (sic) and “Resource Coord Preston”.
Katharine Elder
22. Ms Elder provided a witness statement dated 5 August 2005 (Exhibit A11) and gave oral evidence. In her witness statement Ms Elder states that:
·she has been employed by the ABC since 1998 and is presently employed by the ABC as ROSS (Radio Operation Switching Schedule) Officer in Production Resources;
·the applicant, who was due to take long service leave in 1999, trained her to do the applicant’s job as Production Resources Coordinator in Production Resources, and she then filled in for the applicant as Production Resources Coordinator in 1999 while the applicant was on long service leave;
·she subsequently worked in the Technical Services department.
Ms Elder’s witness statement continues:
“10. I moved back to Production Resources at the end of 2003. This was as a result of a national restructure of Technical Services which resulted in my position being moved back into Production Resources. From that time I commenced to attend weekly or fortnightly meetings of the Production Resources Department. These meetings were also attended by John O’Brien as manager of Production Resources, Pam Oliver and Janet Preston.
11. In late 2003 or early 2004 I was aware that Tina was soon due to return from maternity leave and I raised this at one of the Department meetings. I specifically asked when Tina was due back and what she was going to do. John O’Brien responded with words to the effect ‘I don’t know what we’re going to do with her. We’ve got to figure that out when she gets here. Her job’s not here any more.’
12. The subject of Tina’s return to work was raised at a couple of the Department meetings and minutes of these meetings are attached...
13. As the date for Tina’s return approached, I approached John O’Brien to discuss Tina’s role. I told John that I had been offered the opportunity to work with Local Radio, and that if he released me from my job at Technical Services then Tina could take up that role. I was performing the role at Band 5 but it was an administrative role which could be placed anywhere from Band 3 to Band 5. I had just moved up to Band 5. John said he thought that my proposal was a good idea and I believed that I would be able to implement this training and handover when Tina returned.
14. When Tina returned, the information I received about her role was that she was to give extra support to Production Resources. I thought this was strange as there were no duties readily identifiable for her to perform. Production Resources had managed without an extra person for 2 ½ years. They now proposed Tina would be an extra person, without identifying a particular role or duties.
15. When Tina returned from leave she spent the first few days initially training on the SAP software with Janet Preston. The rostering was an important part of the Production Resources Coordinator’s duties. Tina spent quite a few days in training with Janet Preston however it was obvious that Janet could not continue the training much longer and that eventually Tina would need to be given some other duties to perform. Pam Oliver commented to me that the SAP-related duties were fairly ‘dry’ stuff and Tina could not be expected to continue with it day in and day out. She said that Tina needed to be trained in other things.
16. I then told Pam Oliver that I could start training Tina in the Technical Services job. Pam agreed that I do that. However problems arose when I tried to make time to actually train Tina in the Tech Services admin role. It appeared to me that Pam decided that if Tina was away from Production Resources, she was unable to monitor what Tina was doing. Both Pam and John appeared to be concerned about any time that Tina was away from Production Resources.
17. When Tina attended at Technical Services to train with me, I received a call from Janet who asked me ‘do you know how much time you’ll be taking with Tina’. Tina told me that Janet and Pam had been doing that (calling to monitor time spent out of Production Resources) all of the time.
18. I felt that this monitoring of Tina’s time was pointless and counter-productive. Tina needed to be trained if she was to perform the Technical Services job and the training should have been allowed to take its course. I felt that I was restricted from properly performing training.
19. At one point in time Pam called me to ask to meet with me. When I met with Pam she asked me to give her detail of all the duties Tina would be doing with Technical Services and how long those duties would take. I agreed to provide that detail, however felt that the request was unconstructive. It appeared to me simply an attempt to monitor Tina meanwhile nothing was being done to work out a real timetable for her or a proper job description (a copy of the email I sent to Pam is attached).
20. Tina told me that she was finding it difficult to complete tasks with Technical Services. She said that whenever she started something she would have to put it aside as she was constantly being interrupted by Pam or Janet giving her other ad hoc tasks to complete. She told me she felt she was in a difficult situation.
21. Tina meanwhile told me that she could still not get things done as quickly or efficiently as she wanted to. She appeared to have started back at work with an open mind, and was keen to prove that she wanted to be at work and was willing to be flexible. She understood that there would be some transitional easing back into work but the longer things dragged out without resolution, the more disillusioned she became.
22. Tina mentioned to me that she was not taking lunch breaks and was working extra hours to try to stay on top of work. I could not believe that this situation had transpired, given that until her return from leave, no one was there to do all of these ‘extra’ duties.
23. Tina called me one morning (I think it was just after she’d been off sick for a day or so). She was clearly very distressed and over-wrought about her situation at work and told me that she had spent several nights awake crying over the situation.
24. I could see that the situation was becoming unworkable. Tina was finding it hard to focus on her duties in Technical Services because Production Resources tasks were taking precedence. I therefore went and saw Kris Bathgate who is the manager of Technical Services. I told him that I thought he needed to discuss Tina’s role with John O’Brien because Production Resources were still allocating Tina tasks which were distracting her from Technical Services and if this continued, Technical Services would suffer. I told Kris that I thought a proper timetable for Tina needed to be developed so that she and others knew what to focus on and so that she could work without distractions and interruptions (a copy of the email I sent to Kris is attached). Unfortunately Tina had succumbed to the pressure of her poor work situation and I was unable to follow up on this suggestion to Kris as Tina remained off sick and unable to return to work.”
Jocelyn Figliomeni
23. Ms Figliomeni provided a witness statement dated 8 August 2005 (Exhibit A13) and gave oral evidence. Ms Filgliomeni’s witness statement is as follows:
“1. I am employed by the ABC as Production Secretary, Television. I have been employed by the ABC continuously on a full time basis since about 1993.
2. Prior to May 2004 I worked for the ABC in the Production Resources Department as a production secretary in the TV Production Unit. In about May 2004 I moved to the Television Division.
3. I am acquainted with Tita (Tina) Ilian and have known her since 1993 when I commenced employment at the ABC. I was initially employed in the Technical Services division and shared an office with Tina. In 1998 I was moved to TV Production Unit, Production Resources division.
4. Prior to Tina commencing maternity leave, she was employed as the Production Resources Coordinator in the Production Resources Department. I also worked in this department as Production Secretary for TV Production Unit and my role was similar to Tina’s in that she performed a large scope of administrative roles in support of the Production Resources Department, and I coordinated matters administratively for the TV Production Unit within the department. We did not work on the same floor, nor did we work together but we did have contact with each other within the department.
5. Working in the Production Resources Department, I was aware of the nature of Tina’s role and the duties she fulfilled in the department. As I have said, her title was Production Resources Coordinator. She was responsible for all administrative tasks in Production Resources. When she commenced maternity leave, her position was filled by two people consecutively, and the last of these was Janet Preston. From my observations, it was clear that Janet Preston was performing Tina’s job of Production Resources Coordinator. In this regard, Janet was located in the same office that Tina was located in prior to her leave, her e-mails contained the title ‘Production Resources Coordinator’, she reported to the same person that Tina had reported to (John O’Brien), and did the tasks that Tina had previously done such as bookings, rostering, general administration.
6. When Tina came back to work following her maternity leave, Janet continued to perform that same job, with the same title and from the same office. Tina was not returned to her title or her office. I expected that Janet would gradually hand back over to Tina, perhaps initially with some training and updating. Not a lot had changed, but just prior to Tina commencing maternity leave the ABC had introduced a new software program for payroll (the SAP system) and a new software program for bookings (Scheduall). Tina would have had limited experience with the SAP system and Scheduall [and] may have needed some training in it before taking up her full pre-maternity leave duties.
7. I would imagine there would also have been some changes while Tina was away to procedures for bookings. I expect that these procedures would need to have been shown to Tina for her to perform the Production Resources Coordinator role. Janet Preston was the logical person to show these changes to Tina.
8. I am aware that Janet Preston did commence training Tina on the SAP system. This was known around the department generally, but while training was going on, I would receive frequent calls from Tina asking me questions about the SAP system. She rang me on a number of occasions to ask me things which I thought Janet Preston should have shown to her. Tina told me that Janet had shown her only the basics, which she had quickly become familiar with, but not more advanced functions which she thought she needed to know.
9. Then I was asked by John O’Brien to train Tina to do my rosters for the TV Production unit. I was told that the reason why Tina would have to learn my rosters was so that Tina could provide back up with maintaining my TV Production roster timesheets if I ever went on leave.
10. I asked for an hour a day to be allocated so that I could train Tina in the rosters but I may have spent only a couple of full hours with Tina on separate occasions. Our other sessions together were usually cut short because she had other things needing to be done for Tech Services or Production Resources. Tina would come up to see me, we’d start some training, but usually Tina would then get a call to go off and do something else apparently more urgent. It was always Janet Preston or Pam Oliver that rang Tina on these occasions. Even when Tina was not with me, I received calls from Janet Preston asking where Tina was. One time Tina passed by my desk on the way back to Production Resources and I asked her where she had been as Janet was looking for her. She said she had been at Kate Elder’s office doing Technical Services tasks. I thought this was strange that Janet didn’t seem to know where Tina was supposed to be, and that she ought to have been aware of the tasks assigned to Tina where she was doing a bit of work for Technical Services. In the end, I had far less than an hour a day with Tina and insufficient time to bring her up to speed with the TV Production Unit rosters.
11. When I first started training Tina she was very enthusiastic and seemed to be willing to learn new things and be flexible. As time went on however I could see that she was becoming unhappy and she started to make comments to me which confirmed this. She said for example that she was learning more from me about SAP than what she was learning from Janet Preston. It seemed to her that Janet Preston was reluctant to give her meaningful work or to allow her to take back her old job. Tina said to me ‘It’s clear to me now what’s going on.’ I understood her to mean that she felt there was a deliberate attempt to keep her out of her old roles as the Production Resources Coordinator.
12. Tina also told me that she was uncomfortable with the work arrangements that had been made for her. She said that she was getting work for Technical Services and also for Production Resources and that her role was not well defined. She said this caused a lot of pressure on her and confusion for her and the people she was working with.
13. Tina also started to become anxious. I saw her crying at work one day. I was showing her the rostering procedures, when she got a call from Production Resources calling her away. She became tearful and started to cry.”
John O’Brien
24. Mr O’Brien provided a witness statement dated 21 September 2005 (Exhibit R15) and gave oral evidence. Mr O’Brien’s witness statement is as follows:
“1. I am employed by the Australian Broadcasting Corporation (‘the ABC’) as the manager of Production Resources. I have been in this role since 2000, although, I have worked for the ABC on previous occasions.
2. Ms Ilian was employed as an Administrative Assistant. After the Enterprise Bargaining Agreement came into effect around 2000, her title became that of Administrative/Professional but the local title, ‘Production Resources Coordinator’, was used.
3. Ms Ilian has claimed that my predecessor, Mr Johnston, had discussed a review of Ms Ilian’s job band level but this was not, to my knowledge, pursued formally. In any event, Mr Johnston did not have the authority to agree to the change suggested by Ms Ilian.
4. I do not believe that there is any need for a Band 5 position in Western Australia...In Perth, the role does not involve planning rosters, it simply involves inputting information with little responsibility or management as compared to the other Band 5 positions. The Perth role has no financial duties and I remain of the view that Band 4 is the appropriate level for this position. The Local Radio equivalent is also a Band 4 position.
5. The Enterprise Bargaining Agreement was the first agreement of this kind at the ABC and it was a major departure from the old award system. The establishment of the performance management system was a major task for the entire nation because job plans had to be done for all employees. As a result, there were some delays.
6. Prior to this, there had been an informal arrangement whereby Ms Ilian worked to (sic) Mr Peter Pemberton regarding the inputting of roster information. Mr Pemberton took voluntary redundancy from the ABC and Ms Herbert fulfilled his functions. Around May 2001, Ms Fiona Herbert (now Holden) and I advised Ms Ilian that Ms Herbert would be her immediate manager.
7. I understand that a ‘draft’ job plan was sent to Ms Ilian in July 2001. This job plan indicated that Ms Herbert was Ms Ilian’s manager. As such, it was appropriate for Ms Herbert to undertake the job plan meeting with Ms Ilian.
8. I do not agree that Ms Ilian was given her finalised job plan on the last day of work before commencing maternity leave. I do not recall the actual date but my recollection is that it was some weeks prior to maternity leave. I do not believe that there was any agreement between Ms Herbert and Ms Ilian that the job plan should be Band 5.
9. In accordance with the Enterprise Bargaining Agreement, Ms Ilian’s initial performance appraisal period was 1 July 2001 to 26 March 2002. Ms Ilian’s performance appraisal was not actually due until 26 March 2002. My consideration of Ms Ilian’s appeal dated 27 November 2001 (Attachment A) was, in fact, undertaken 4 months prior to when the appraisal could have occurred. I do not agree that the appraisal was conducted incorrectly. In fact no appraisal was carried out because Ms Ilian was on leave. When she returned from leave the appraisal would have been carried out and if she met the requirements of the appraisal any increment would be backdated to her official increment date.
10. I do not agree with Ms Ilian’s claims that I had authority to grant an immediate pay increase. I do not have any such authority. Under the Enterprise Bargaining Agreement there is no discretion to do this. The whole system is based on performance and in order for any increase to be granted the employee must demonstrate that they meet to (sic) requirements as agreed. In any, event Ms Ilian did not appeal this job plan, although, I did advise her of this option in my letter (Attachment A).
11. I was aware that Janet Pearce from Human Resources was in contact with Ms Ilian on several occasions prior to her return to work.
12. In addition, I telephoned Ms Ilian to discuss her return to work and suggested that she could return to work on a part time basis if she wanted. Ms Ilian indicated that she preferred to come back on a full time basis and I did not press this option any further. I do not recall Ms Ilian emailing me or attempting to telephone me again after this time.
13. When she returned on 21 January 2004, I did meet with Ms Ilian for approximately half an hour. I have a clear recollection of this meeting.
14. At no stage during this meeting did I say ‘your job is gone, and we have to find you some alternative duties’. I did not say that Janet Preston was ongoing in ‘her title (Production Resources Coordinator) and her duties on a permanent basis’. Instead, what I did say was that over the last few years there have been many changes and that Production Resources had taken on responsibility for supplying additional administrative support to Technical Services. In particular, I explained that:
a.ScheduALL had been introduced to replace FOCUS.
b.The performance appraisal coordination and the general workload had increased.
c.Although, she’d had an introduction to the SAP system it was far more advanced than when she left, and I had understood that Ms Ilian had not actually used SAP before she went on leave. We needed for her to be a highly proficient user given its importance to our business.
d.I explained that we had Ms Preston on a fixed term for 6 months and that she would give her every assistance to get up to speed.
15. I said that because Production Resources had an agreement to supply a level of administrative assistance to Technical Services and that she would be undertaking work for Technical Services and that she may be needed to backfill for another staff member in the Television Production unit when she goes on leave. Productions Services (sic) has always done this and so this was nothing new. She did not seem to have any difficulties with this and instead seemed quite positive.
16. I told Ms Ilian that because of the number of changes that had taken place over the past 3 years she would require extensive retraining to get back up to speed. I was not vague or uncertain about what Ms Ilian would be doing.
17. Ms Oliver and I had discussed the need for a plan to get Ms Ilian up to speed. However, we did not know how long it would take Ms Ilian to readjust to fulltime work, or how long it would take for her to learn all the new tasks that were now required to be undertaken as part of the role. This was why Ms Preston was working for Production Resources so that she could continue to assist while Ms Ilian was retrained. We had allowed for this in our budget. It was always intended that Ms Ilian would return to the position of Production Resources Coordinator. This was never in question.
18. At no stage did I tell Ms Ilian that her title would change or that her job was gone. Janet Preston had, in fact, been acting in the role on a fixed term basis and it was not intended for her to remain in that position. Ms Preston’s contract was extended for an additional 6 months to assist with training Ms Ilian and to allow Ms Ilian to resume her duties on a graduated basis.
19. Because it was my intention for Ms Ilian to resume her normal duties in her position I had arranged for Ms Preston to gain experience in other areas of the ABC. Ms Preston had already received an introduction to Radio and had started to look at other work such as Production assisting. Ms Preston was keen to go into research work in television and I had organised for her to be trained and to gain experience in this area but Ms Ilian went on sick leave and the option could not be taken up.
20. ...
21. I do not agree that Ms Ilian was given any menial tasks. There is no such thing as menial tasks in our division. All tasks are necessary and would have had to be done in any event. All tasks that are done could and should be undertaken by any one of the Production Resources staff and this has been past and is still present practice.
22. I do not agree that Ms Ilian ever had to work extra hours, although, I do recall her working back on one occasion when I saw her photocopying documents. I understand that this was the Enterprise Bargaining Agreement, something which was readily available from Human Resources.
23. I understand that Ms Ilian had difficulty mastering the SAP system and she did not reach the level of expertise required. In the past when we used the STAR system Ms Ilian’s entries were not very accurate and we had several staff complain about problems with their pay. These problems arose from inaccurate entries. I was concerned that we did not have a repeat of these circumstances using the SAP system. Ms Ilian could not commence with any further advanced training on the SAP system without mastering the basic requirements accurately.
24. In 2001, I did speak with Ms Ilian about absences from her desk and I have attached a copy of a diary note to Ms Herbert who was made Ms Ilian’s direct manager (Attachment B). I was concerned that this may have been occurring again as she was taking an excessive amount of time to complete some tasks. I also observed her talking on her mobile phone on several occasions. I did not raise this directly with Ms Ilian at that time, although, I was aware that Ms Oliver was going to discuss this with her.
25. On one occasion I did request a note from Ms Preston and Ms Preston did advise me about the status of Ms Ilian’s training as I needed to know this so that further training and tasks could be planned accordingly.
26. I do not recall Ms Ilian raising any concerns about her position or her tasks. The only concern she raised with me was about the delay which she believes occurred with regard to her performance appraisal.
27. I disagree that Ms Ilian was ever left in the dark about her role and I disagree that she ever advised of any concerns about this. As stated above, Ms Ilian’s role was never in question as far as I was concerned.
28. I do not agree that I changed my explanation of the proposed appraisal period. Under the Enterprise Bargaining Agreement, there is a requirement for everyone to be appraised on an annual basis. This is not discretionary and the appraisal dates are fixed according to when the last increase was granted. I advised Ms Ilian of this in Attachment B (sic). The exception to this rule is that an increment date can be moved to allow for leave which does not count as service eg sick leave without pay.
29. I do not agree that Ms Preston, Ms Oliver or myself ever harassed or bullied Ms Ilian. If anything we were supportive and interested in her progress.
30. I do not agree that it was ever said that Ms Ilian’s job had gone. Her job was always there and still is, we have only ever filled this role on a temporary basis. It was simply a question of when she would be able to resume her full duties and this depended on her ability to be retrained and get up to speed.
31. I do recall an instance where Ms Ilian’s nephew was on the premises. I was informed of this by either Ms Oliver or Ms Preston. It was reported to me that an unidentified person in the company of Ms Ilian was operating an ABC computer and I decided to investigate. Upon arrival I found a person poised at the ABC computer in an operative position with Ms Ilian sitting to the side looking on. She introduced this person as her nephew and I stated that it was inappropriate and contrary to ABC IT policy for non-ABC personnel to interfere with a computer, as recently as March this year another reminder was sent out to staff via the Human Resources department reiterating this. Ms Ilian should have been aware of this policy. When I spoke to Ms Ilian it was in an informative and kindly manner. Her nephew did not seem to be embarrassed at all.
32. ...”
Pamela Oliver
25. Ms Oliver provided a witness statement dated 21 September 2005 (Exhibit R16) and gave oral evidence. Ms Oliver’s witness statement is as follows:
“1. I have been employed by the Australian Broadcasting Corporation (‘the ABC’) for approximately 30 years in various roles. I have been in my current role of Operations Manager for approximately 3 years.
2. Although I did know who Ms Ilian was prior to her commencing maternity leave around September 2001, I did not work with her directly until she returned from leave on 21 January 2004. At that time I was her direct supervisor.
3. I was aware that Ms Ilian had disputed her Job Plan before she commenced leave, although I was not involved in this. I do know that under the Enterprise Bargaining Agreement system, staff have to perform in the role and be appraised in that role before the Job Plan can be changed. It is a performance based system.
4. I recall speaking to Ms Ilian prior to her return to work over the telephone. The ABC had no requirement for Ms Ilian to return to work prior to the end of her prescribed leave and I advised her of this during our discussion. I also explained that her job had changed somewhat over the past 3 (sic) plus years, and that it would be much easier to discuss this with her when she returned. At the time, I had thought that it would [be] best if we had this conversation over a coffee or something in person. To say that I was avoiding any discussion regarding her return to work is simply untrue. I just did not want to bombard her with too much information over the telephone.
5. In my mind, there was no question that Ms Ilian would return to her position as Production Resources Coordinator once she was up to speed with the new SAP computer system and the changes that had occurred to the role while she had been on leave.
6. At that time Janet Preston was on a fixed term contract filling in as Production Resources Coordinator while Ms Ilian was away and it was not intended for her to continue in that role once Ms Ilian had settled back in. Ms Preston was aware of this and had commenced looking for alternative positions within the ABC.
7. I agree that Ms Preston was performing the role as a Band 4. This was because several changes had been made to the role during the 3 (sic) plus years that Ms Ilian had been away and there was more work and responsibility involved. For example, Ms Preston agreed to be responsible for scheduling the staff performance appraisals. This was not something that Ms Ilian had performed before. I recall that there were some meetings held in which Ms Ilian’s return to work was discussed. I have read Ms Elder’s statement regarding the meeting discussions. I do not believe that Ms Elder would have been present for the entirety of these meetings as Ms Elder would have been present in her Technical Services role and her presence would not have been required for later discussions regarding Production Resources only. As such, I do not believe that Ms Elder would have been fully informed of the situation.
8. I do not agree that it would have been said at these meetings that Ms Ilian’s job was gone. Her job had not gone. It had simply changed. As such, it was decided that because Ms Ilian required training with the new SAP system a more flexible approach to her return to work would be appropriate. We could then address any issues if and when they arose. Also, we were unsure as to how long it would take for Ms Ilian to get back up to speed. I was also mindful that Ms Ilian would require a period of readjustment to full time employment and I did not want to overwhelm her.
9. On her return to work Ms Ilian was briefed by John O’Brien regarding her duties, including some tasks that Production Resources were now performing to assist Technical Services, and also about Ms Ilian backfilling for Ms Figliomeni while she was on leave. Production Resources was required to provide someone for these tasks in any event, and also as I did not want Ms Ilian to spend all of her time training on the SAP system (which can be quite monotonous), I thought it was appropriate that Ms Ilian attend to these tasks as a way of breaking her day up. This was discussed with Ms Ilian and she seemed to be happy to do this. She did not raise any concerns.
10. On or about 3 February 2004 I asked Ms Elder to book training time with Ms Ilian in relation to the Technical Services administrative assistance. Ms Elder advised that training would take place on Thursday 5 February 2004 and she provided me with a list of duties and the timeframe each task should take. I have attached copies of Ms Elder’s email and the duty list which were also received by Ms Ilian (Attachment A). To say that Ms Ilian was impeded and hindered from performing her duties and that ‘they’ would come past for no reason is untrue. To this day I do not know where the training was carried out as it was not of concern to me. The fact that Ms Ilian was receiving training was my only concern.
11. In the meantime Ms Ilian continued to provide assistance within Production Resources and Janet Preston sent an email on 10 February 2004 advising Ms Ilian of the duties required of her over the next few days (Attachment B).
12. On 11 February 2004 I emailed Ms Ilian about this schedule and asked that Ms Ilian spend a few solid weeks within Production Resources as I wanted her to focus on one area at a time. I also asked that Ms Elder and Ms Figliomeni advise me of any training that they wished to undertake with Ms Ilian (Attachment C) so that we could coordinate this. In my view Ms Ilian was informed of what was expected of her at all times.
13. As such, we continued to train Ms Ilian with the SAP system as this was quite important. However, this did not go very well. Ms Ilian made numerous errors and this did not seem to improve. I have attached copies of the errors made by Ms Ilian for the week commencing 19 April 2004 (Attachment D). These are very basic rostering errors and a clear indication that Ms Ilian was not ready to take on more advanced tasks at that time.
14. I did ask Ms Preston to keep me advised as to the training progress and any inaccuracies as the errors that were being made by Ms Ilian were significant. The entries on this system must be accurate as it involves staff rostering, and if any errors are made the staff are not paid correctly, or alternatively, the staff are not rostered according to business requirements. Inputting ‘draft’ rosters is a substantial part of Ms Ilian’s duties, and with her appraisal in mind, I wanted to give her every opportunity to meet her Job Plan. When advised of these errors Ms Ilian seemed to accept this.
15. I do not have any emails on file indicating John O’Brien had been included on emails regarding the status of Ms Ilian’s tasks.
16. I did not know that Ms Ilian was asking Ms Figliomeni for help. Neither Ms Ilian nor Ms Figliomeni told me this. Ms Ilian did not tell me that she was having any difficulties. If I had known this, I would have addressed any training problems or issues that needed to be addressed as that is part of my job.
17. I do not agree that Ms Ilian was ever competent in the SAP system. It is a very difficult system to learn and to use. The ABC now requires all SAP users to be accredited which requires further training.
18. I do not agree that Ms Ilian did not have enough work to fill her day. However, I did notice that Ms Ilian was spending excessive time in completing her tasks. In particular, I recall that it took her almost 2 days to complete a newsletter for Technical Services, a task which should have only taken 2 hours. I do not know why this took so long, although I did question Ms Elder as to whether Ms Ilian was up to this task by way of email dated 5 April 2004. Ms Elder advised that it would not take more than an hour or so. A copy of these emails is attached (Attachment E).
19. I also note that Ms Ilian claims to have worked extra hours to stay on top of her work. I did not know this and do not recall her ever working late. There was no need for her to do this. I do, however, recall seeing her at work late on one occasion about two weeks before she left on 21 April 2004. At that time, I observed her photocopying the Enterprise Bargaining Agreement. I do not know why she was doing this, although, I note that this document has since been provided as evidence in relation to her current discrimination claim against the ABC.
20. I was concerned about the amount of time Ms Ilian was spending with Technical Services as it had been agreed that we would provide assistance to them for 15 hours only. Instead, Ms Ilian seemed to be spending most of her time at Technical Services. I was also concerned that she was spending too much time away from her desk as I know that Ms Ilian has had previous discussions with Mr O’Brien about long absences from her desk.
21. I was not aware that Ms Ilian was having any problems learning the SAP system or that she was unhappy in any way. I did ask Ms Ilian how she was and how she was going on several occasions and she always replied that she was fine. I was aware that Ms Ilian had suffered from post natal depression and I was also mindful that she had been out of the workplace for some time so I did not want her to be overwhelmed in any way.
22. I do not agree that she was given menial tasks. All tasks performed in Production Resources are critical duties, including those which had been assigned to Ms Ilian. For example:
a. If the inputting of roster information is incorrect, staff will not receive the appropriate entitlements in their pay. This is unacceptable.
b. If rosters aren’t distributed in accordance with the Enterprise Bargaining Agreement we are in breach of the agreement.
c. Updating OH&S spreadsheets and records is vital.
d. Inputting roster plans is a requirement for forecasting, financial planning and tracking budgets.
These are not menial tasks. They are critical tasks and an integral part of Production Resources day-to-day operations.
23. At no time did I harass or bully Ms Ilian. I was always supportive and concerned for her welfare and I went out of my way to ensure a seamless return to employment for her. To say that I bullied Ms Ilian is untrue.
24. I also recall Ms Ilian having family members in the office on more than one occasion. ABC policy requires visitors to be signed in and out, and provided with an ABC visitor sticker (Production Resources has the forms and stickers in the office). Ms Ilian chose to ignore this policy with all her visitors, and would allow them to wander unsupervised. I also recall her asking a relative to investigate an IT problem on her computer. I believe this to be an inappropriate request as we have staff who could attend to such problems. I would expect Ms Ilian to be aware of ABC policies and procedures.
25. I met with Kerry Gledhill (former Human Resources Manager) and John O’Brien concerning Ms Ilian’s performance and we agreed I should hold an informal meeting with her to discuss performance management issues and to allow her the opportunity to offer feedback. This meeting was held on 21 April 2004. The meeting notes are attached (Attachment F). I deny that any vague or unsubstantiated allegations were made. The meeting was cordial and amicable.
26. I prepared a work schedule for Ms Ilian, covering most of the tasks of Production Resources Coordinator which included 15 hours of administrative assistance for Technical Services. I presented the attached work plan to Ms Ilian at our meeting (Attachment G). She indicated that she was happy with the work plan.
27. During the meeting Ms Ilian and I agreed that she would complete a form outlining the duties she was performing and the time taken to perform each task for two weeks, so I could monitor the work she was performing for Technical Services, and we could make the necessary adjustments in consultation with the Technical Services Manager. I emailed confirmation of this to both Ms Ilian and Ms Preston that same day. (Attachment H).
28. I have seen the work plan attached to Ms Elder’s statement and do not agree that this is a correct reflection of Production Resources agreement to provide support for 15 hours a week only. It seems that Ms Elder may not have been informed of this agreement.
29. ...
30. I thought I had a good working relationship with Ms Ilian. She verbally expressed her gratitude and thanked me for my support on numerous occasions. There were never any hard feelings or arguments and I would be quite happy for Ms Ilian to return to her job as Production Resources Coordinator at the ABC if she wanted to. That job is still Ms Ilian’s job.”
26. In her oral evidence Ms Oliver elaborated on the meeting she had with the applicant on 21 April 2004. She said that prior to the meeting she prepared a document listing the matters that she wanted to discuss with the applicant, including errors made by the applicant in entries on the SAP system, her inability to complete some of her tasks within the time frames, and the amount of time she had been devoting to Technical Services tasks as compared with Production Resources tasks. Her evidence continued:
“Now, when you came to have this discussion with her, can you explain how it came about?---I did mention to Tina that I wanted to have a chat with her and that it was just an informal chat. It wasn’t an aggressive conversation. It was a very amicable conversation right throughout. We went through and discussed some of these things.”
She added that this occurred at the applicant’s workstation, commencing at about 5.30 pm and lasting 1-1½ hours. She said that she made notes in pencil on the abovementioned agenda document during the meeting, and that after the meeting she created a document (referred to in para 25 of her witness statement as ‘Attachment F’) comprising the list of matters discussed and her notes in respect of each of those matters (Transcript, pp 389-391).
The Medical Witnesses
Dr Ian Assumption
27. Dr Assumption, Consultant Psychiatrist, said that he has been treating the applicant since 28 April 2004. He confirmed that he had prepared a report regarding the applicant in connection with her compensation claim (T5). That report (which is undated but which Dr Assumption said had been prepared in June/July 2004) is as follows:
“…I have now assessed and treated her (including sessions with her husband) for a total of ten sessions.
My view after two initial lengthy assessment sessions was that she was a previously high functioning married mother of two children who presented with a severe depressive disorder. There was no evidence of drug or alcohol abuse and she was otherwise in good physical health at the time of the assessment.
There was unequivocal evidence of sleep and appetite disturbance, weight loss (marked), anhedonia, amotivation, lethargy, teariness with a reduced threshold for crying, reduced humour and slowed information processing (poverty of thought content and speech).
The illness had a profound negative effect on her capacity to work (although she was functioning well at work upon her return). It also had a profound effect on her relationship with her husband and children. Her ability to concentrate and attend was reduced, she was psychomotor retarded and her functional capacity was reduced.
The initial symptoms indeed were anxiety and panic attacks, suggesting her significant anticipatory anxiety and ambivalence in relation to her return to work given that she expected problems in her readjustment, whilst concerned about financial matters, and most significantly, whilst no longer actively treated in terms of depressive prophylaxis.
2.7 If Ms Ilian’s previous post-natal condition had not resolved prior to Ms Ilian’s return to work at the ABC, whether this changes your opinion as to the causation of Ms Ilian’s current condition (if any) in any way.
In my opinion, the fact that the post-natal condition, which in fact represents a post-natal relapse of the underlying affective illness, not having resolved prior to her return to work with the ABC does not change the overall causation at all, in fact reinforces my argument regarding the real nature of this condition.
2.8 Whether Ms Ilian is fit for work (either at the ABC or in alternative employment), and if she is fit for work, whether you recommend any restrictions relating to Ms Ilian’s work environment or duties.
Currently, whilst experiencing residual symptoms of depression, I would recommend only part-time duties, commencing with five hours maximum per week and preferably in an alternative environment. According to her qualifications, Ms Ilian is probably best suited to undertake office work, customer service, etc.
2.9 Whether any further medical treatment is indicated, and if so, the nature and expected duration of this treatment.
Further medical and psychiatric treatment is indeed indicated. Treatment with psychopharmacological methods under the circumstances should probably be life-long. This would entail the prescription of an antidepressant medication and at least monthly reviews of this treatment by a specialist psychiatrist until stability in time is achieved, when the follow-up could be taken over by a general practitioner.
In addition, given the underlying psychological factors to do with interpersonal relationships, interpersonal sensitivity, possibly unresolved grief issues, initial ambivalence towards her children exacerbating her depression during both pregnancies, I would also recommend psychological intervention in the form of (at least supportive) psychotherapy for the next two to three years.
2.10 Whether your opinion may have changed in any way after your review of the enclosed documents.
My opinion with regard to diagnosis, pathogenesis, and work-related causation has not changed after my review of the claimant, however certain information in support of my previous opinion came to light after the review of the documentation now available.
One can uphold the view whereby under the circumstances of premature cessation of treatment for a recurrent, prolonged and complicated chronic Depressive Disorder, further aggravated by a relative lack of choice (sense of entrapment and lack of control) in the matter of return to work in early 2004 given the family’s financial situation at the time, occurring in the life of an individual with obsessional personality traits (as documented before, with a strong need for control), resulted in an inexorable progression towards an exacerbation of a Major Depressive Disorder.
Therefore, the workplace environment, the alleged incidents, the experience of being disciplined or reprimanded, disillusionment at not being promoted to a higher level, etc, do appear to represent seemingly triggering factors in the scheme of things when examined superficially, however their impact is faint and fades in comparison to the personal life issues and intrinsic psychological variables that the claimant brings to the equation.
…” (original emphasis)
35. In her oral evidence Dr Charkey-Papp was referred to a passage in her report of 20 April 2005 in which she stated that the applicant “experienced significant personal disillusionment with the way she had been treated by superiors”, and added:
“She felt demoted, no longer valued as an experienced productions co-ordinator, losing her sense of identity and leading to a full blown depressive episode”.
Dr Charkey-Papp responded:
“It is the applicant’s perception of the events that really matters and I think this is where we need to draw the line and later in the report I refer to the standard individual in similar circumstances. If you take anybody and subject them to the same sort of stress, like allegedly being treated the way she had been treated, not everybody will suffer a major depressive disorder. What I am saying is her perception of feeling demoted, that she wasn’t valued anymore, she didn’t have a desk, or a job, or she was not accepted the way she expected to be accepted back at work after the maternity leave, all those factors. The subjective perception of the patient is what really upsets them, whereas another person in the same situation would not feel the same way.”
Asked whether these were the factors which triggered the applicant’s depression, Dr Charkey-Papp expressed the opinion that “factors outside employment were probably much more important” (Transcript, pp 283-284). She acknowledged, however, that the applicant’s perception of her treatment in the workplace was a contributing cause of her depression, albeit a minor cause as compared with the non-workplace causes. Asked whether she regarded the applicant’s perception as genuine, Dr Charkey-Papp responded:
“I never doubted the genuineness of the perception, of the subjective impact that the environment at work had on the applicant. I think that is very genuine.”
(Transcript, p299)
Dr John Pearce
36. Dr Pearce, Specialist Physician in Occupational and Rehabilitation Medicine, examined the applicant on 5 August 2004 and provided a report to the ABC dated 10 August 2004 (T8). In that report Dr Pearce noted that the applicant was suffering from a “marked affective disorder consistent with major depressive disorder” and opined that she was presently “unfit for work” and would “remain so in the near future”. In his oral evidence, however, Dr Pearce said that the matter of the cause of the applicant’s psychiatric condition and of her unfitness for work was outside his area of expertise, and he did not express an opinion in relation to that matter.
Additional Medical Evidence
37. The Tribunal also had before it the following medical evidence:
·report of Dr Christiaan Barnard, Specialist Occupational Physician, dated 31 January 2005 (Exhibit A14).
·reports of Dr Maria Power, Consultant Psychiatrist, dated 22 May 2001, 3 July 2001 and 21 August 2001 (Exhibits R3, R4 and R5);
·clinical notes of Dr Maria Power regarding consultations with the applicant on 22 May 2001, 3 July 2001 and 21 August 2001 (Exhibit R6);
·medical records of Dr Trevor Blythe regarding the applicant (Exhibit R8);
·medical records of Ms Helen Macartney, Clinical Psychologist, regarding the applicant (Exhibit R10);
·medical records of Leonard Street Surgery (Dr A Natchimuthoo) regarding the applicant (Exhibit R13); and
·medical records of Perth Clinic regarding the applicant (Exhibit R14).
It is unnecessary, however, to refer to the contents of that material in these reasons.
Analysis and Findings
Is the applicant suffering from an “injury” within the meaning, and for the purposes, of section 14(1) of the SRC Act?
38. The answer to the above question depends (relevantly) on whether the applicant is suffering from a “disease” (as defined in s 4(1) of the SRC Act) and whether any of the exclusionary provisions in the definition of the word “injury” in s 4(1) of the SRC Act applies.
Is the applicant suffering from a “disease”?
39. The medical evidence unreservedly supports the proposition that the applicant is suffering from an “ailment” (as defined in s 4(1) of the SRC Act), namely a mental ailment or psychiatric disorder, although there is some dispute about the appropriate diagnosis of that condition. Dr Assumption opined that, although the applicant had suffered 3 episodes of depressive illness prior to 2004, her depression was in remission as at March 2003 and that, when she first presented to him on 28 April 2004, she was suffering from another depressive episode which he described as “a severe depressive disorder”. Dr Assumption is continuing to treat the applicant for that depressive illness. Dr Charkey-Papp, on the other hand, opined that the applicant presented, on 18 April 2005, with “an exacerbation of a chronic remitting/relapsing type of an affective illness, namely Major Depressive Disorder”, and that she was continuing to suffer from that condition when she examined her on 2 November 2005.
40. On the basis of the whole of the material before it, the Tribunal is of opinion that, at the time of onset of her current depressive illness in April 2004, the applicant had not fully recovered from an episode of postnatal depression which she suffered in 2003, although that condition was in partial remission at that time. Accordingly, the Tribunal accepts Dr Charkey-Papp’s analysis and diagnosis of the applicant’s psychiatric condition and finds that the applicant sustained on or about 22 April 2005, and continues to suffer from, an aggravation of major depressive disorder.
41. The next question which arises is whether the abovementioned aggravation of the applicant’s major depressive disorder “was contributed to in a material degree by” the applicant’s employment by the ABC. According to the expert psychiatric evidence before the Tribunal, that question should be answered in the affirmative. Dr Assumption unreservedly expressed the opinion that the applicant’s present depressive illness was causally related to her employment with the ABC in the period from 21 January 2004 to 21 April 2004. Dr Charkey-Papp opined, however, that the cause of the applicant’s present depressive illness was “multifactorial”, comprising both non-work-related and work-related factors, and, although she thought that non-work-related factors were “probably much more important” causes thereof, she accepted that the applicant’s perception of her treatment in the workplace at the ABC was a contributing, albeit minor, cause of her depressive illness.
42. Dr Charkey-Papp, furthermore, had no doubt that the applicant’s subjective perception of her treatment in the workplace at the ABC was genuine. Likewise, the Tribunal, having observed the applicant give evidence (most of which was given in the course of a lengthy and rigorous cross-examination), accepts that the applicant’s subjective perception that, upon her return to work at the ABC on 21 January 2004, she no longer occupied her previous position and had been permanently replaced in that position by another person, and was thereafter bullied and harassed by her superiors, subjected to unjustified criticism of her work performance and to excessive supervision of her movements and activities, was genuine. That is not to say, however, that the applicant’s subjective perception of her treatment in the workplace at the ABC in the period from 21 January 2004 to 21 April 2004 accorded entirely with reality. For example, the Tribunal, on the evidence before it, is not satisfied that the treatment of the applicant by her superiors during that period constituted bullying or harassment, or that she had in fact lost her previous position and been permanently replaced in that position by another person. The Tribunal is satisfied, however, that the applicant’s subjective perception that those, and the other abovementioned, circumstances occurred was real and genuine and was, furthermore, based on the following events or circumstances which, the Tribunal is satisfied, occurred in the course of her employment with the ABC in the period from 21 January 2004 to 21 April 2004:
· the applicant’s meeting with Mr O’Brien on 21 January 2004 (the day of her return to work after an absence, on leave, of almost 2½ years) from which she came away with the understanding that she was no longer in the position of Production Resources Coordinator and that she had been permanently replaced in that position by Ms Preston;
· following her return to work on 21 January 2004 the applicant was allocated duties in both the Production Resources and Technical Services departments which she regarded as menial and involving much less responsibility than the duties she previously carried out as Production Resources Coordinator, and, furthermore, this allocation of duties caused her to feel confused about her duties and uncertain about her role at the ABC;
· the applicant’s immediate supervision by Ms Preston and the monitoring of her movements in the workplace by both Ms Preston and Ms Oliver which she regarded as excessive and unwarranted and which caused her to feel that she was being harassed;
· the occasion on which the applicant’s nephew was sitting next to her at her workstation and Mr O’Brien (who, according to his evidence, had been informed of this by Ms Oliver or Ms Preston) then spoke to her (in the presence of her nephew) and reminded her that it was contrary to the ABC’s IT policy for her nephew to operate her computer;
· the applicant’s meeting with Ms Oliver commencing at 5.30pm on 21 April 2004 at which she was informed of certain concerns about her work performance (including lack of attention to detail, failure to complete tasks within time-frames, long absences from workstation).
43. On the basis of the evidence of Dr Assumption and Dr Charkey-Papp, the Tribunal is satisfied that the applicant’s perception of her treatment in the workplace at the ABC in the period from 21 January 2004 to 21 April 2004 – including the events or circumstances referred to in the preceding paragraph – contributed in a material degree to the aggravation of major depressive disorder sustained by the applicant on or about 22 April 2004.
44. Accordingly, the Tribunal finds that the aggravation of major depressive disorder sustained by the applicant on or about 22 April 2004, and from which she continues to suffer, is a “disease”, as defined in s 4(1) of the SRC Act.
Was the applicant’s “disease” suffered by her “as a result of reasonable disciplinary action taken against [her] or failure by [her] to obtain a promotion, transfer or benefit in connection with… her employment”?
45. Although (as the Tribunal has found) the aggravation of the applicant’s major depressive disorder was contributed to in a material degree by her employment with the ABC in the period from 21 January 2004 to 21 April 2004, that “disease” will not constitute an “injury” (as defined in s 4(1) of the SRC Act) within the meaning, and for the purposes, of s 14(1) of the SRC Act if it was suffered by her “as a result of reasonable disciplinary action taken against [her] or failure by [her] to obtain a promotion, transfer or benefit in connection with … her employment”: Hart v Comcare (2005) 145 FCR 29.
46. The respondent submitted that the following abovementioned events each constituted “reasonable disciplinary action”, within the meaning of the definition of the word “injury” in s 4(1) of the SRC Act:
· the occasion on which Mr O’Brien spoke to the applicant about her nephew’s presence at her workstation and reminded her that it was contrary to the ABC’s IT policy for her nephew to operate her computer;
· the applicant’s meeting and discussion with Ms Oliver commencing at 5.30pm on 21 April 2004.
47. In the Tribunal’s opinion neither of the abovementioned events constituted “disciplinary action” within the meaning of the definition of the word “injury” in s 4(1) of the SRC Act. As regards the applicant’s meeting with Ms Oliver on 21 April 2004, according to Ms Oliver’s own evidence that meeting was an “informal meeting” arranged for the purpose of discussing “performance management issues” and giving the applicant “the opportunity to offer feedback”. As Ms Oliver’s notes of that meeting make clear, the ultimate purpose of that meeting was to improve the applicant’s work performance and the matters discussed were confined to aspects of her work performance and did not include disciplinary matters. The occasion on which Mr O’Brien spoke to the applicant about her nephew’s presence at her workstation, however, could be said to involve a disciplinary matter but, in the Tribunal’s opinion, Mr O’Brien’s conduct in dealing with that matter by way of merely reminding the applicant of the ABC’s IT policy “in an informative and kindly manner” and stating that “it was inappropriate and contrary to ABC IT policy for non-ABC personnel to interfere with a computer”( see para 31 of his witness statement set out in paragraph 24 above) fell far short of constituting “disciplinary action taken against” her, within the meaning of the definition of the word “injury” in s 4(1) of the SRC Act.
48. The respondent also submitted that each of the following circumstances constituted a “failure by the [applicant] to obtain a … benefit in connection with … her employment”, within the meaning of the definition of the word “injury” in s 4(1) of the SRC Act:
· the failure of Mr O’Brien to conduct or arrange a performance appraisal of the applicant, and the consequential failure by the applicant to obtain an increase in salary above Band 3; and
· the applicant’s perception of the failure by her, upon her return to work on 21 January 2004, to be placed in her former position of Production Resources Coordinator and to be allocated her former responsible duties.
The respondent further submitted that the applicant’s psychiatric condition was suffered by her as a result of one or both of the abovementioned circumstances, thereby excluding her condition from being an “injury” within the meaning, and for the purposes, of s 14(1) of the SRC Act.
49. The Tribunal does not accept the respondent’s submissions. As regards the latter abovementioned circumstance, a mere perception by the applicant (as submitted by the respondent) of the failure to obtain a benefit would not, in the Tribunal’s opinion, suffice for the purposes of the relevant exclusionary provision in the definition of the word “injury” in s 4(1) of the SRC Act. In the Tribunal’s opinion that exclusionary provision is only applicable when there has in fact been a failure by the applicant to obtain a benefit in connection with her employment. In the present case, however, even if the applicant’s perception that, upon her return to work, she was not placed in her former position and was not allocated her former duties accorded with reality, that would not, in the Tribunal’s opinion, constitute a failure by her “to obtain a … benefit”, within the meaning of the relevant exclusionary provision. Instead, it would constitute a failure by her to retain her existing position and duties and, accordingly, it would not be caught by the relevant exclusionary provision: Re Davill and Australian Postal Corporation AAT Decision No 10629, 22 December 1995, at para 22; Comcare v Ross (1996) 680 FCA 1; Re Albanese and Comcare [2004] AATA 768 at para 72. As regards the failure by the applicant to undergo a performance appraisal and to obtain an increase in her salary above Band 3, although such failure would constitute a “failure … to obtain a … benefit”, within the meaning of the relevant exclusionary provision, the Tribunal, on the whole of the evidence before it, is not satisfied that such failure played any part in the applicant’s sustaining the aggravation of major depressive disorder on or about 22 April 2004. According to the evidence before the Tribunal, the issue of the appropriate Job Plan and Salary Band for the applicant came to a head in 2001. Shortly before the applicant went on leave in September 2001, her Job Plan was settled at Salary Band 4 (instead of Salary Band 5 which she had requested) and, following an “appeal” (more accurately, a request for reconsideration) by her, Mr O’Brien affirmed the Job Plan at Salary Band 4 on 27 November 2001. Although the applicant regarded this matter as still unresolved when she returned from leave on 21 January 2004 and no doubt thereafter continued to feel aggrieved by it, in the Tribunal’s opinion it was overwhelmed by the other events and circumstances (as perceived by her) in the workplace during the period from 21 January 2004 to 21 April 2004 (summarised in paragraph 42 above) which (as the Tribunal has found) contributed in a material degree to the aggravation of major depressive disorder sustained by the applicant on or about 22 April 2004, and did not itself make any contribution to the applicant’s sustaining that aggravation of major depressive disorder at that time.
50. Accordingly, the Tribunal finds that the applicant’s “disease”, namely, aggravation of major depressive disorder, was not suffered by her “as a result of reasonable disciplinary action taken against [her] or failure by [her] to obtain a promotion, transfer or benefit in connection with … her employment”, within the meaning of the definition of the word ”injury” in s 4(1) of the SRC Act.
Finding
51. The Tribunal finds, therefore, that the applicant is suffering from an “injury” (namely, aggravation or major depressive disorder) within the meaning, and for the purposes, of s 14(1) of the SRC Act.
Has the applicant’s “injury” resulted in impairment or incapacity for work?
52. On the evidence before it, the Tribunal has no difficulty in finding that the applicant’s “injury” has resulted in “impairment” (as broadly defined in s 4(1) of the SRC Act).
53. Likewise the Tribunal, on the basis of the evidence before it, has no difficulty in finding that the applicant’s “injury” has resulted in “incapacity for work” (as defined in s 4(9) of the SRC Act).
Conclusion
54. The Tribunal concludes, therefore, that the respondent is liable, under s 14(1) of the SRC Act, to pay compensation to the applicant in respect of an injury, namely, aggravation of major depressive disorder, which has resulted in impairment and incapacity for work.
55. It was agreed between the parties that, in the event that the Tribunal reached the abovementioned conclusion, the matters of the degree of the applicant’s incapacity for work and the quantum of compensation payable to her in accordance with the SRC Act would be remitted to the respondent for determination. The Tribunal agrees that that would be the proper course.
Decision
56. For the above reasons, the Tribunal sets aside the reviewable decision of the respondent dated 8 November 2004 and, in substitution therefor, decides that the respondent is liable, under s 14(1) of the SRC Act, to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, aggravation of major depressive disorder, suffered by her on or about 22 April 2004.
57. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop, Ms L Tovey, Member and Dr D Weerasooriya, Member
Signed: ............Sgd [Sda Motta]..............................
AssociateDates of Hearing 7-9, 17 November 2005
Date of Last Written Submissions 29 November 2005
Date of Decision 23 February 2006
Counsel for the Applicant Ms R Cosentino
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Sparke Helmore
4
0