Jacobson and Telstra Corporation Limited
[2004] AATA 952
•14 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 952
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/202
GENERAL ADMINISTRATIVE DIVISION ) Re MERREL JACOBSON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr K L Beddoe, Senior Member Date14 September 2004
PlaceBrisbane
Decision The Tribunal:
(a) directs, pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975, that the publication of, and access to, the first three lines of the second paragraph of the report of Dr Warwick Middleton, dated 29 June 1992, and that part of the clinical notes of Dr Pearson that relate to 31 August 1992, as contained in Exhibit 5, be restricted to the parties, their legal representatives and the Tribunal’s staff;
(b) sets aside the decision under review and in substitution therefor decides that the applicant suffered a compensable aggravation of a pre-existing psychiatric condition as a result of her employment with the Commonwealth;
(c) finds that the applicant is entitled to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988; and
(d) finds that the effects of the aggravation of that condition ceased upon the applicant’s return to full-time employment with the respondent in May 2003.
(Sgd)
K L Beddoe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – psychiatric condition – applicant claims to have suffered a psychiatric injury as a result of her employment with the Commonwealth – applicant claims to have been subjected to bullying and harassment – evidence of pre-existing psychiatric condition – applicant’s perception of events in the workplace led to an aggravation of the pre-existing condition – temporary aggravation – effects of aggravation have now ceased
Safety Rehabilitation and Compensation Act 1988
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234REASONS FOR DECISION
14 September 2004 Mr K L Beddoe, Senior Member 1. On 16 October 2001, the applicant lodged a claim for workers’ compensation in relation to workplace stress and harassment. That claim was rejected by the respondent’s insurer on 11 December 2001 on the basis that the delegate was unable to find any evidence to support the claim that the applicant suffered a compensable injury as a result of her employment with Telstra. That decision was reconsidered and affirmed on 28 December 2001. The applicant sought review of the decision by this Tribunal.
2. This application for review was heard by the Tribunal on 4 and 5 December 2003. The applicant gave evidence at the hearing and was represented by Mr P Smith of counsel. The respondent was represented by Ms E Ford of counsel. The Tribunal heard oral evidence from the following witnesses:
§Dr Helen Hoey, Consultant Psychiatrist
§Mr Barry Walker
§Ms (Mona) Lisa Tomoana
§Mr Kevin Watt
§Dr Jill Reddan, Consultant Psychiatrist
§Mr Dean Dudley
3. In addition to the oral evidence, the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and the following documentary exhibits:
§Exhibit A: Report of Dr Hoey dated 1 April 2003
§Exhibit B: Report of Dr Hoey dated 12 June 2003
§Exhibit C: Report of Dr Barron dated 22 February 2002
§Exhibit D: Email message to the applicant dated 21 July 2003 together with letter to the applicant dated 20 August 2003
§Exhibit E: Report of Dr Hoey dated 13 October 2003
§Exhibit F: Statement of Barry Paul Walker dated 4 December 2003
§Exhibit G: Statement of Lisa Tomoana dated 2 December 2003
§Exhibit H: Memo from Mr Watt to Ms Searly dated 24 November 2001
§Exhibit 1: Undated email to the applicant re meeting on 13 March 2001
§Exhibit 2: Email to applicant dated 7 September 2000 re UNIX training
§Exhibit 3: Applicant’s medical/sick leave records
§Exhibit 4: Email to applicant dated 19 January 2001 re training courses
§Exhibit 5: Summons documents from the Royal Brisbane Hospital
§Exhibit 6: Report of Dr Reddan dated 30 October 2002
§Exhibit 7: Statement of Dean Dudley dated 14 November 2003
§Exhibit 8: Email from applicant dated 24 July 2001 requesting training
§Exhibit 9: Email from Mr Dudley dated 10 July 2001 re training
§Exhibit 10: Report of Dr Chan dated 30 March 2002
§Exhibit 11: Report of Dr Staples dated 29 March 2001
§Exhibit 12: Report by Work Solutions Group dated 13 May 2003
§Exhibit 13: Report of Dr Staples dated 3 February 2001
§Exhibit 14: Copy of assumed facts put to Dr Reddan
4. After the conclusion of the hearing, it became apparent to the Tribunal that one of the documents in the summonsed material produced by the Royal Brisbane Hospital (Exhibit 5), contained information about the sexual abuse of a person who is in no way connected with this case. Being satisfied of the confidential nature of the material contained therein, the Tribunal considers it is appropriate to make an order in this case, pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975, restricting the publication of, and access to, the first three lines of the second paragraph of the report of Dr Warwick Middleton dated 29 June 1992, and that part of the clinical notes of Dr Pearson that relate to 31 August 1992, as contained in Exhibit 5, to the parties, their legal representatives and the Tribunal’s staff.
Evidence of the Applicant
5. The applicant gave oral evidence to the Tribunal, as well as providing a handwritten statement dated 12 November 2001 (T26, folios 40 to 55). In her oral evidence, she confirmed the contents of her statement and expanded upon it.
6. The applicant was born on 23 September 1951, and commenced work with Telstra (or Telecom as it then was) in 1969. At the time of her claim for workers’ compensation, she had been working in a specialist IT position with Telstra.
7. In her evidence, the applicant explained how she had originally been in a larger team, but a decision was made to split the team into two groups. A decision was made at that time to put her into the IT team, even though she did not have any formal IT training. David Odgaard, a manager at Telstra, had said to her that he did not expect her to be able to do the same work as other employees with IT degrees, but he knew that she was capable of working hard and that she had the ability to learn what she needed to know to work in the section.
8. In her statement, the applicant refers to requests by Mr Dudley, her supervisor in the IT section, for her to perform certain tasks for which she had not been trained. Despite asking for some training in the tasks, she did not receive any, and therefore suffered difficulties in performing the allocated tasks. She states that Mr Dudley would criticise her work on these tasks to other staff members, making her feel incompetent and incapable of doing simple tasks (T26, folios 45-46). She also stated that Mr Dudley would cause unnecessary delays in the processing of leave forms and the approving of payments, resulting in her looking unprofessional and receiving numerous complaints (T26, folios 46-47).
9. The applicant stated she had been subjected to demeaning personal attacks by her team leader, Dean Dudley, during two years preceding November 2001. She states the attacks had become so bad that she was no longer able to function normally and was suffering physical side effects, which resulted in her being hospitalised in March 2001 and suffering severe migraines (T26, folio 40).
10. The applicant stated that Mr Dudley would treat her differently depending on whether others were present when they interacted. If there were others around, Mr Dudley would be pleasant and “would make a big thing of you”, but in private he would make sarcastic comments leaving her feeling on edge all the time. She said his sarcastic comments succeeded in undermining her ability to make decisions and affected her ability to concentrate (T26, folio 40).
11. The applicant requested that performance reviews and training plans be devised for her, but, she claims, neither Mr Dudley nor his immediate supervisor, Mr Wallace, showed any intention of taking such steps. She stated that Mr Wallace informed her he did not consider these were important (T26, folio 40).
12. As the applicant was not particularly busy in her substantive position, she began assisting other teams with their work. She stated that Mr Dudley had informed her any work she performed for other teams would not count for anything, and would not be taken into account in her performance review. He told her she would never be released from his team (T26, folio 41).
13. In cross-examination, The applicant would not agree with the suggestion that two performance reviews had been conducted during the two years Mr Dudley had been her supervisor. The applicant was referred to T32 (folio 74), but would not agree she had indicated previously that she had received performance reviews and had been upset by the lack of recognition and individual attention in the reviews.
14. The applicant agreed that an email had been sent to her and other staff by Mr Dudley setting out dates and times for performance reviews, however she claimed that her review never took place. She agreed with Ms Ford’s contention that she had received a 9.4% pay rise as a result of being rated satisfactory in this review, however, she continued to deny that the review had actually taken place.
15. In particular, the applicant was referred to an undated email from Mr Dudley (Exhibit 1), which set out arrangements for her performance review on 13 March 2001 at 10am. She denied receiving this email and said no such review was completed on that day. Exhibit 3, the applicant’s sick leave records, later revealed that the applicant was absent from work on 13 March 2001. The record revealed that she was absent from 13 March 2001 to 23 March 2001, during which she had been hospitalised from 17 March 2001 to 20 Mach 2001.
16. As mentioned above, the applicant has not undertaken any specialist IT training. She stated that Mr Dudley and Mr Wallace had expressed the opinion to her that people without technical skills should not be employed in the IT section (T26, folios 41 and 44). She claims to have requested training on numerous occasions, but her requests were ignored. She stated, on one occasion, Mr Dudley had approved her verbal request to attend training, but had provided her with no assistance in locating an appropriate course for her needs. As a result, that training never took place (T26, folio 41).
17. In cross-examination, the applicant was asked about training opportunities that had been provided to her during the time Mr Dudley was her supervisor. She claimed that an ethics core training program she participated in, in 2000, was not a training course, but was a questionnaire that was completed on-line. The applicant agreed, however, that she had been given access to training on the NetInfo Access program, but states the training consisted only of an overview of how the program worked. She also said, in her evidence, that she had been given training in occupational health and safety issues.
18. The applicant denied being given access to UNIX training. Even after she was shown Mr Dudley’s email of 7 September 2000 (Exhibit 2), which indicated she and other staff had been enrolled in seven training units, the applicant continued to deny she had been offered such training. In cross-examination, she expressed the view that Mr Dudley would not have considered it necessary for her to undertake this training as he would have thought it was way above what she needed.
19. Whilst the applicant agreed in cross examination to receiving Mr Dudley’s email of 19 January 2001 (Exhibit 4), which set out a list of courses and invited her to express an interest in attending any of the courses, the applicant said that Mr Dudley made comments to her to the effect, “That doesn’t concern you. That would be way above what you need to know at this stage”. She agreed that he did not make these comments in relation to all of the courses on the list.
20. The Tribunal notes that Exhibit 9 is also an email from Mr Dudley offering to provide the applicant with formal training in HTML if required.
21. Ms Ford put to the applicant, in cross-examination, that she had been offered training on a number of occasions but never took up the offer. The applicant said that it was not a matter of being asked, “would you like to go?”, but a matter of being told you have to go to training on specified dates. She expressed the opinion that she could not have refused to go to training if it had been organised for her.
22. In 2000, the applicant signed an AWA contract. She stated that prior to signing the contract she was advised she would receive a certain salary and was unhappy about the proposed amount. She discussed her concerns with Kevin Watt, a team leader with another section. As a result of her discussions, and Mr Watt’s discussions with David Odgaard (then a manager of another section in Telstra), the proposed salary under the contract was increased. The applicant states Mr Dudley took credit for the increase in her salary, claiming he had personally arranged the increase.
23. The applicant signed the contract and returned it to Mr Dudley. She was informed that she would be provided with a copy of the contract and that the new terms of employment would commence straight away. However, several weeks passed and she had not received a copy of the contract (T26, folio 42). Six weeks later, she approached Mr Dudley about the document, who informed her that it was still sitting in his desk drawer (T26, folio 43).
24. In 2001, the applicant approached Mr Dudley and requested a remuneration review. He told her she would not get a review as she was getting “pretty good dollars for just answering a couple of calls” (T26, folio 43). Nonetheless, a review was eventually undertaken and the applicant received an increase of 1.8%. The applicant was informed that the remuneration review decision was based on her last performance review, but she claims no such review ever took place (T26, folio 43).
25. In March 2001, the applicant was admitted to hospital with severe shoulder and neck pains, and pains inside her mouth. After undergoing several tests, she was informed that her symptoms were the result of tension/stress (T26, folio 44). The applicant continues to suffer neck, shoulder and head pain (T26, folio 44).
26. Upon her return to work, the applicant claims Mr Dudley made references to her looking old and sick, and that she was unable to handle stress. When she was introduced to two new team members (Lisa Tomoana and Josephine Watson), she states Mr Dudley introduced her as, “This is Merrel, don’t upset her she gets stressed easily” (T26, folio 44).
27. In her evidence, the applicant claimed Mr Dudley would send her email messages, a couple each day, that read, “Don’t stress”.
28. The applicant also states she was too scared to make a complaint about Mr Dudley for a long time, particularly as he had repeatedly said to her that anyone who crossed her would pay. On one occasion when he made this remark, Mr Dudley was referring to another staff member (Craig Potter) and was shaking his fist in an aggressive fashion (T26, folio 45). In her evidence, the applicant stated Mr Dudley had also said, “I can get rid of someone in a day if I need to”.
29. In June 2001, following an IDO communications strategy workshop, the applicant lodged an equal employment opportunity (“EEO”) complaint in relation to Mr Dudley (T26, folio 48 and 56-57). She states Mr Dudley called her into his office and told her he had heard she had a problem with him. She told him she did not want to discuss the matter as no formal complaint had been made. He asked her what he could do to address her complaints and she told him to be straight with her and not to lie (T26, folio 48).
30. Shortly thereafter, the applicant was called to see Greg Wallace. Mr Wallace informed her that he had heard she had an EEO issue, and stated he considered it to be a work issue and not an EEO issue (T26, folio 48). In cross-examination, the applicant said Mr Wallace had never said it was not an EEO issue because she was not being refused training on the basis that she was a woman. She stated he quizzed her about who she had spoken to and why, and told her not to discuss her concerns with Mr Watt or Mr Odgaard. The applicant felt very distressed after this conversation and felt harassed (T26, folio 49).
31. The applicant later discussed her complaint, at various times, with Brendan Ede, Andrew Wenzell and David Odgaard. It was agreed that the applicant would be transferred to a new work unit (T26, folio 51). In her evidence, she said that Mr Ede had told her that Mr Dudley had been under a lot of stress after having giving up smoking after 30 years. She also stated that she had never agreed that the transfer would resolve all of her concerns about Mr Dudley.
32. The applicant also states that at no time during these conversations did she agree that an EEO complaint was not the most appropriate way to deal with her concerns. She thought that her complaint was being put on hold and had not been finalised. She was surprised when she received an email advising her complaint had been closed (T26, folio 51).
33. Shortly after transferring to her new work unit, the applicant learnt Ms Tomoana had lodged a complaint against Mr Dudley (T26, folio 52). She felt betrayed by senior management and was upset by the fact nothing had been done in relation to her complaint (T26, folio 52). In cross-examination, the applicant said that she had never been happy with the outcome of her complaint but did not know what to do about it. She believed that Mr Dudley was to be reprimanded, and when she heard of Ms Tomoana’s complaint she realised this had not occurred.
34. The applicant denied that she had been friends with Ms Tomoana prior to Ms Tomoana lodging her complaint against Mr Dudley. She had worked in the same section as Ms Tomoana, although she was not located in close proximity to her. The applicant stated that she would say hello to Ms Tomoana, but did not engage in conversations with her on a daily basis. The applicant denied, in cross examination, discussing her complaint about Mr Dudley with any other co-workers.
35. As a result of working with Mr Dudley, the applicant lost self confidence and self esteem. She felt useless and was constantly on edge (T26, folio 47). She feels she is being blamed for everything that has happened, and states she cannot now walk in the street in which her office is located without breaking down (T26, folio 52; T21, folio 33). She is also suffering difficulties in her personal life as a result of her treatment in the workplace. For a short period in 2002, she separated from her husband due to the stress she was suffering. She said she is constantly upset and becomes angry with her children on trivial matters (T26, folio 53). She states it is a struggle just to get out of bed each day (T26, folio 53).
36. After her claim for compensation was rejected in December 2001, the applicant became suicidal. She was very distressed and felt that life was not worth living. She said in her evidence that she just wanted the truth to be known but that she could not get that across.
37. The applicant states she “had never had these problems until the issues came to a head within inaction on Lisa Tomoana’s complaint” (T26, folio 54). In cross-examination, the applicant denied she had been suffering stress in July 2001 when her husband underwent reconstructive surgery following an accident. She said she would worry about how he was, and that one day Mr Dudley came up to her and said, “People don’t repair as well when they get older”.
38. In cross-examination, the applicant was asked whether she had any previous psychiatric history. The respondent referred to the clinical notes produced under summons by the Royal Brisbane Hospital (Exhibit 5), and drew the applicant’s attention to the numerous appointments she had had with Dr Pearson, a psychiatrist over the period 6 July 1992 to 14 December 1992. The applicant claimed to have no recollection of these appointments, and stated she had only ever attended a psychiatrist once and on that occasion she had attended with her daughter, Julie Anne.
39. There was evidence before the Tribunal, in Exhibit 5, of allegations of child sexual assault upon a daughter by the applicant’s husband. The applicant denied that she had attended a psychiatrist and had been prescribed Prothiaden as a result of depression relating to the child sexual assault allegations and marital problems.
40. The applicant also denied that she had suffered depression in the 1970s and had been prescribed anti-depressants.
41. In cross-examination, the applicant agreed that she may not have mentioned any problems with Mr Dudley to her general practitioner before August 2001, as, prior to that time, she was trying to get on with her work. Although, in re-examination, she said she told Dr Chan of her problems at work prior to her hospitalisation in March 2001. She also agreed, in cross-examination, that she did not tell the hospital or an occupational therapist, who had attended to examine her workstation following her neck complaints in March 2001, of her problems with Mr Dudley.
42. The applicant also agreed, with the exception of the period of hospitalisation in March 2001, she had not taken any sick leave as a result of her problems with Mr Dudley until after she found out about the complaint made by Ms Tomoana.
Other Evidence
43. The Tribunal also heard oral evidence from a number of witnesses employed in the workplace at the time of the alleged incidents.
Barry Walker
44. Barry Walker gave oral evidence and provided the Tribunal with a statement (Exhibit F). Mr Walker worked with the applicant and Mr Dudley during the relevant period, and sat approximately four metres from the applicant’s workstation. Mr Walker stated that he had heard Mr Dudley make inappropriate remarks to the applicant and make untoward advances towards her. Mr Walker considered that not only were Mr Dudley’s remarks degrading, but his tone and demeanour were, in his opinion, very degrading, unsavoury and highly inappropriate.
45. Mr Walker recalled Mr Dudley making comments to the applicant along the lines of, “Oh, g’day gorgeous. How are you doing today?”. Mr Walker also told the Tribunal of an incident in which Mr Dudley had said to him, “Hello darling, how are you?”, when Mr Walker had attended the office on a Saturday to fix a technical problem. The comment was made in front of Mr Walker’s wife.
46. Mr Walker said similar remarks were made on other occasions, and that Mr Dudley’s conduct towards him only changed when he changed his behaviour towards Mr Dudley. He stated he became deliberately rude and offensive back to Mr Dudley which stopped his behaviour. In cross-examination, Mr Walker stated he had told Mr Dudley, about a week after the incident in front of his wife, that he did not appreciate Mr Dudley’s comments and remarks.
47. Mr Walker opined that Mr Dudley had been giving work to the applicant which was inappropriate for her skill levels. He stated that the applicant had only basic computer skills but Mr Dudley was asking her to perform work at an advanced level without providing her with appropriate training. Mr Walker told the Tribunal that he holds an Associate Diploma in Electronics and is a competent UNIX systems administrator. He opined that for the applicant to undertake the work being allocated to her by Mr Dudley during the relevant period, she would have required at least two to three weeks of formal training followed by a further two to three months of training before she would have a competent understanding of the work she was being required to perform.
48. In cross-examination, Mr Walker stated that, about two years ago, when Mr Dudley was giving up smoking, he was very irritated and unsettled, and that working for him at that time was a little bit difficult. Mr Walker stated that Mr Dudley has become a little friendlier since then, but would not agree that Mr Dudley had always been a friendly, jovial person. He did not agree that Mr Dudley’s comments had been said in a joking manner and were not intended to be offensive.
(Mona) Lisa Tomoana
49. Mona Lisa Tomoana, who more commonly goes by the name Lisa Tomoana, worked with Mr Dudley for six months from April to October 2001. She was a contractor employed through Julia Ross Recruitment Services. Ms Tomoana gave oral evidence to the Tribunal, as well as providing a written statement (Exhibit G).
50. She considered Mr Dudley to be a bully, and found that he behaved differently with her depending on whether other people were around. She considered that, in at least 80% of the conversations she had with him in private, his words and tones were “a put down”. She agreed, in cross-examination, that Mr Dudley would present an image of being a caring type of person in public; however, she said she found his behaviour insulting, offensive and demeaning in private.
51. Ms Tomoana considered Mr Dudley to be bullying her by the tone of his voice, his words and the way he approached her. She considered bullying to include anything that made her uncomfortable or which was belittling. She complained of an incident where Mr Dudley had removed a speck of fluff from her hair. She considered this to be a “hypocritical display” for a co-worker’s benefit, and she objected to his actions as an invasion of her personal space.
52. In answer to a question by the Tribunal, Ms Tomoana stated Mr Dudley did not support her when it came to work issues. She said she had tried to approach him to see if improvements could be made to the workflow in the area and he was not interested or he did not think that it was worth his while to answer her or improve things. She said it was not the case that she just did not like Mr Dudley, she just did not like the way he treated her in relation to work matters.
53. On 27 August 2001, Ms Tomoana sent an email to Brendan Ede formally complaining about Mr Dudley’s conduct (T26, folio 58). She continued to work under Mr Dudley’s supervision until 5 October 2001. Ms Tomoana considered that Mr Dudley’s behaviour towards her become worse following her complaint.
54. In cross-examination, it was put to Ms Tomoana that Mr Dudley had had to speak to her on a number of occasions about the standard of her work and in relation to complaints he had received from clients about her demeanour and tone. Ms Tomoana denied this and said she had never been informed of any complaints about her work. She said that Mr Dudley had never sought her out to speak to her privately about her work.
Kevin Watt
55. Kevin Watt is a team leader at Telstra. He has known the applicant for approximately ten years, and first began working directly with her when she transferred into his team in August 2001.
56. In the week of 25 to 29 June 2001, Mr Watt was acting Manager for Internet Messaging Operations. On 27 June, he was approached by the applicant in relation to some difficulties she was having with her managers, Dean Dudley and Greg Wallace. At this time, the applicant was visibly upset and very emotional. Mr Watt referred the applicant to the human resources page on Telstra’s intranet and informed her of the two EEO delegates for the area.
57. After this conversation, he contacted his supervisor, David Odgaard, and informed him of the conversation. Mr Odgaard advised him to contact Brendan Ede, a more senior manager, about the matter. After confirming the applicant had no objection to this course of action, Mr Watt contacted Mr Ede. On Mr Ede’s instructions, Mr Watt informed Greg Wallace of a possible EEO “situation”.
58. Mr Watt had no further involvement with the applicant until she transferred to his team in early August 2001.
59. Around 28 August 2001, the applicant went on stress leave. Mr Watt visited the applicant at her house and found her to be extremely upset and emotional (T5, folio 13). She told him that something had happened in the office between Mr Dudley and Ms Tomoana which made her feel that Mr Dudley had gotten away with his behaviour.
60. Mr Watt met with the applicant and her doctor on a number of occasions after this, whilst trying to arrange a return to work program for the applicant. He said he found her to be extremely upset at these times and considered she was completely different to how she had previously been in the workplace.
61. On 23 October 2001, Mr Watt conducted an interview with the applicant (T16, folio 27). He explained to her the requirements for proceeding with her workers’ compensation claim and asked her to describe in her own words the events leading up to the claim, which were recorded as (T16, folio 27-28):
§“Over a 2 year period I have suffered demeaning personal attacks from Team Leader Dean Dudley – I have previously tried to put these to the back of my mind, until a recent IDO Communications Strategy workshop which encouraged staff to speak up.
§No PRDP over this time period – asked for on several occasions – evidence in registered e-mail
§No training provided – asked for on several occasions – evidence in registered e-mail
§Both of the above included the 2 up manager who also did not respond
§AWA Contract offer very low – advised that it is all you will get – Management stepped in and it was increased
§Other Team’s offered work, I was told that any work for another team would count for nothing and certainly would not reflect on any PRDP (which I never had anyway)
§Spoken to by Mr Dudley where he tole (sic) me – I probably would not get a remuneration review as I get pretty good dollars for just answering a couple of calls
§Told to speed up my process when asked to do an audit on Leave balances – without any training or guidance
§Sarcastic whispered remarks – such as You would not be able to do this type of work.
§When introduced to new starters – I was introduced as Merrel, don’t upset her she gets stressed very easily
§Told by Mr Dudley that anyone who crosses me will pay – in reference to another staff member – this made me very concerned about raising any issue
§When I first raised the issue of an EEO Complaint – I spoke with the EEO person in the office – I was overheard and the next morning approached by Mr Dudley who wanted to know what it was about and how he could fix it
§As above – I was taken into the 2 up Managers office and harassed and told that I did not have an EEO issue – and that I should not have been speaking to the EEO Rep or anyone else, at this point I had not even registered one, on leaving the office Mr Dudley approached me and said I hope Greg was not to hard on you.
§I felt that I had been vindicated after interviews by Andrew Wenzel and Brendan Ede interviewed me and I was moved to another Team, I had some issues mainly when asked if I was happy with the outcome, I said I was to be moving to another Team, but not happy with my treatment, and I did not consider that Mr Dudley having given up smoking a reason for his treatment of me.
§I feel that everything I have been told was all lies, as another complaint was made against Mr Dudley by a Contractor (which I have evidence of) – this bought it all back and I just cannot cope as I feel that I am being blamed for what has happened
§Previous 2 up Manager stated at my recent Oct Rem review, that He did not know what I expected but it is based on your performance (how did he do that when I have never had a performance review)”
Dean Dudley
62. Mr Dean Dudley provided a statement to the Tribunal dated 14 November 2003 (Exhibit 7) and gave oral evidence.
63. Mr Dudley became the applicant’s team leader in the year 2000. He stated that he treated her like any other member of his staff and that he did not bully or harass her.
64. Mr Dudley stated that he encouraged all his team members to undertake the various training provided by Telstra and, in relation to the applicant, he encouraged her to undertake three specific training modules.
65. While giving evidence in chief, Mr Dudley stated he had kept all emails sent to him by the applicant and that there was only one email from the applicant seeking training opportunities. That email was dated 24 July 2001 and tendered by the respondent (Exhibit 8). Mr Dudley stated that Exhibit 8 was the applicant’s response to his suggestion that further training may be an option for her after he had agreed to an expansion of her duties. Mr Dudley stated he responded by suggesting to the applicant that she find a suitable course and he would book it in for her. He stated that the applicant never came to him with any suggested course.
66. Mr Dudley stated that, in general terms, he did not complete the performance review forms for any of his staff.
67. Mr Dudley denied appearing pleasant and caring towards the applicant in public and whispering comments to her to undermine her confidence. He denied stating, “Don’t upset her, she stresses easily” when introducing the applicant to new employees. He denied saying in the applicant’s presence, “People who cross me will pay”.
68. Mr Dudley stated that after the applicant was transferred to another section he took every effort to avoid her. He recalled speaking with the applicant on one occasion after her transfer when he offered her some milk in the kitchen.
69. Mr Dudley denied being in a lift with the applicant and attempting to close the doors, or raising his voice to her outside the women’s toilets. He stated that he never spoke to the applicant in a derogatory tone or in a way that would undermine her confidence.
70. In relation to Ms Tomoana, Mr Dudley stated, in his statement, that his contact with Ms Tomoana was limited and that he did not recall removing a speck from her hair. However, in evidence in chief, Mr Dudley confirmed that he had spoken to Ms Tomoana in private on a couple of occasions about her work performance. When asked during cross examination why there was no mention of this in his statement, Mr Dudley responded that he considered these counselling sessions as relatively trivial. Mr Dudley confirmed that he had made no record of the counselling sessions.
71. Mr Dudley asserted that he did not have a pattern of antagonistic behaviour towards his staff and he did not insult them in private.
Other Evidence
72. The T documents contain written accounts by Brendan Ede (T32, folios 73-75), David Odgaard (T29, folios 64-65) and Greg Wallace (T30, folios 66-68).
73. In his written account dated 29 November 2001, Mr Ede, the National Manager of the i.Factory division of Telstra, stated that the applicant appeared to have some difficulties adjusting to her new role on the IT Help Desk after her return from leave in April 2001, and that she was offered both online and external training to assist her in adjusting to the new role (T32, folio 73).
74. Mr Ede indicated that staff performance reviews were conducted in the 2000/01 financial year and that the applicant had been rated as “fully satisfactory” in her review, resulting in a 9.4% salary increase (T32, folio 73).
75. In July 2001, Mr Ede spoke to the applicant regarding her work concerns, after being notified of such concerns by Mr Watt. He stated she was clearly distressed during their conversation, and that she made allegations against Mr Dudley, including allegations related to the quality of her performance review and the lack of recognition, in her review, for the work she had done for Mr Watt’s team (T32, folios 73-74).
76. After this discussion, Mr Ede raised EEO incident number 6051 and travelled to Brisbane to interview the applicant, Mr Dudley, Mr Wallace and Mr Odgaard in relation to the applicant’s complaints. Whilst Mr Dudley did not accept that he had treated the applicant unfairly or differently to other staff, he conceded in his interview with Mr Ede that he could have completed the performance reviews better, but stated that their generic nature reflected the generic nature of the jobs in his group (T32, folio 74). The applicant also conceded, in her interview with Mr Ede, that she had received a review which was generic in nature and was similar to the ones prepared for other team members, and indicated that her complaints would be resolved if she was moved to another work team (T32, folio 74).
77. Mr Ede concluded in his statement:
“Other information that was flushed out during this process includes that as the complexity of tasks required to be undertaken by Merrel Jacobson increases there appears to be an increasing impact on her health.
…
It is my opinion, supported by Dave Odgaard and Greg Wallace, that although Merrel is genuinely distressed, the cause is not due to any action of her previous team leader.
In our view, Merrel’s distress is a product of her inability to cope with the increasing time pressures and complexity of the work requirements.”
78. David Odgaard provided a report dated 21 November 2001, in which he set out his account of his involvement with the applicant’s complaints (T29, folio 64-65). Mr Odgaard confirmed his involvement in the meeting between Mr Ede and the applicant on 31 July 2001, where, he states, she agreed to a transfer into his work unit as a way of resolving her issues in relation to Mr Dudley (T29, folio 64). The applicant was moved into his section in August 2001, and was quickly provided with performance management and training plans.
79. He states that the applicant was working well within the team and did not appear stressed or distressed. However, on 28 August 2001, she went on sick leave. When she returned to work for various periods, Mr Odgaard made polite enquiries about her well-being, and on two such occasions the applicant became very distressed and was in tears. Mr Odgaard states, on these occasions, he maintained a sympathetic and empathetic nature and re-inforced the steps that had been taken to provide her with reviews, training plans and meaningful IT work (T29, folio 65).
80. Mr Wallace provide his written account of his dealings with the applicant on 26 November 2001 (T30, folios 66-68), however he was not called to give evidence before the Tribunal. Mr Wallace states that he first became aware of a possible EEO problem between Mr Dudley and the applicant on 27 June 2001. He states, on 3 July 2001, he interviewed the applicant, Mr Dudley and Mr Watt separately in an attempt to find out what was happening (T30, folio 67). He said he spoke to the applicant for approximately fifty minutes, during which time he attempted to explain the different types of complaint handling procedures available in Telstra, whilst trying to establish what was happening with a completely open approach (T30, folio 67). He states his conversation with The applicant was lengthy and many topics were discussed and explained. He states he suggested many options that he thought might have assisted The applicant with her problems, including doing different work.
81. He states that his comments to the applicant in relation to Ms Namasivayam, the EEO officer, were only made when he was trying to explain how the rumour of her complaint may have originated. He told her that as Ms Namasivayam had not undergone any formal training, she may not have been fully aware of the strict confidentiality requirements. He claims he was not questioning the applicant’s right to discuss her problems with anybody (T30, folio 68).
82. This comment is particularly interesting in light of Mr Wallace’s earlier remark that (at T30, folio 67):
“Merrel Jacobson advised me that she had spoken to Kevin Watt and that he had advised David Odgaard and subsequently Brendan Ede. I found this unusual as neither Kevin Watt or David Odgaard worked in the same section as Merrel Jacobson and it wasn’t until Brendan Ede was notified that advice was given to involve me – her two up manager. Telstra’s EEO and unfair treatment processes both involve the two up manager unless the complaint is against him/her.”
83. Mr Wallace states that he arranged for the applicant to be given different work within his team, and to be provided with training. He says he treated her cordially whilst she was working in his team and was not aware of the discussions that were taking place regarding her possible transfer to Mr Watt’s team (T30, folio 68). When he became aware of the plans to transfer the applicant, he expressed the opinion that the move may not solve all of her problems and he advised Ms Namasivayam and Mr Watt to observe her behaviour in her new role as he was concerned for her well-being.
84. Mr Wallace further stated that he was not made aware until much later that the applicant had included him in her complaint, and expressed the view that had he been informed much earlier it may have helped him and possibly the applicant to deal with her problems (T30, folio 68). He states he did not consider he had blamed or implied blame on the applicant for her actions, and instead had provided her with as much assistance as he could at the time to resolve her work concerns (T30, f68).
Medical Evidence
Dr Hoey, Consultant Psychiatrist
85. Dr Helen Hoey provided a report to the applicant’s solicitor dated 1 April 2003 (Exhibit A), a letter to the solicitor dated 12 June 2003 (Exhibit B) and a detailed letter to the respondent on 13 October 2003 (Exhibit E).
86. Dr Hoey first saw the applicant in January 2002 and, as her treating psychiatrist, continued to see her on a regular basis. At the time of the initial consultation the applicant had been on leave from work for the previous five months. During the initial consultation the applicant presented as suffering significant anxiety problems related to her impending return to work. The applicant was apprehensive about confronting Mr Dudley in the work place and concerned about what other people might think about her having made a complaint.
87. In February 2002, the applicant commenced a graduated return to work program. She continued to have difficulty coping over the following year and eventually took extended leave from work before resigning.
88. In her report dated 1 April 2003 (Exhibit A), Dr Hoey stated:
“Mental State Examination:
…
She is not suffering from depression but does present as having a labile mood with a tendency to be easily distressed and to have a high level of anxiety at times. This is characterised by significant physical symptoms and anxious thoughts and feelings.
…
Summary:
Merrel is a fifty-year-old married female who presents with a history of having suffered an Adjustment Disorder with a Depressed and Anxious Mood subsequent to work related stress… She has strong perfectionistic traits… She also has quite high trait anxiety with a tendency to worry and this is clearly exacerbated in situations where she has felt unsupported… It would seem what’s been most distressing to Merrel has been the sense that Mr Dudley has not been adequately counselled regarding his behaviour and that there has been a minimization that his behaviour was inappropriate. This was reflected in her significant decompensation when she found that her colleague Lisa had put in not one but two complaints about Mr Dudley… One could say that Merrel’s high anxiety and perhaps some mild vulnerability due to her being tired from her thyroid condition contributed to her difficulty dealing with Mr Dudley’s behaviour… When seen on the 25th March, she presented as much more anxious and depressed. She reported that she was feeling sad, hopeless about her future, and acknowledged suicidal ideas. She reported low irritability threshold, reduced interest and marked anergia having difficulty pushing herself very hard to do things… She also reported very high-generalised anxiety symptoms with anxious feelings, anxious thoughts, and marked physical symptoms. It would appear the major stressor for this recent decompensation is her concern about a negative outcome with the forthcoming mediation and in particular concerns about her future relationship with Mr Dean Dudley. Her biggest fear is a generalised concern that he will seek retribution in some way… Whilst she is managing her day to day life in a very restricted manner she is certainly very vulnerable to stresses with a tendency to decompensate at times of heightened stress as at this time.”
89. In the letter dated 13 October 2003 (Exhibit E), Dr Hoey stated:
“At this stage it would appear the major stressor was her concern about a negative outcome with the forth-coming mediation and in particular concerns about her future relationship with previous supervisor. Her biggest fear was that he would seek retribution in some way for her making a complaint about him…
Using DSM IV criteria, I would afford the following diagnosis:
Axis I Adjustment Disorder with depressed and anxious mood – chronic
Axis II personality traits with strong obsessional features
Axis III Iron Deficiency Anaemia
Hypothyroidism
Axis IV Significant work related stresses
Axis V GAF Score 50- serious impairment in social and occupational functioning.
…
I think she has now become chronically impaired and that is most unlikely [sic] that she will ever be able to engage in any gainful work for which she is reasonably qualified by education, training or experience either within or outside Telstra.”
90. During cross-examination, Dr Hoey confirmed that the applicant had not reported to her any previous psychiatric illness or treatment and was initially surprised that the applicant had undergone intensive psychiatric treatment in 1992. After reading Dr Pearson’s consultation notes from that time Dr Hoey stated:
“I guess I’m not surprised that, in fact, she chose not to disclose that because, you know, abuse and this sort of abuse, intra-familiar abuse is not uncommon, and it’s usually associated with a tremendous amount of shame.”
91. In relation to the applicant’s previous history of being provided with anti-depressant medication over a number of years going back to the 1970s, Dr Hoey stated:
“Merrel doesn't report being depressed. She is an anxious worrier, and as I’ve said before, GPs very often use anti-depressants in low dose for their anxiolytic, for any sort of hypnotic effect.”
Dr Reddan, Consultant Psychiatrist
92. Dr J G Reddan provided a report to the respondent’s solicitors dated 30 October 2002 (Exhibit 6). At the time this report was prepared, the applicant had successfully completed a graduated return to work. Dr Reddan opined:
“Mrs Jacobson’s self-report and the accompanying material would suggest that she developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood… during 2001. The acute precipitant to her leaving work was her distress after learning that her previous team leader had not been punished or reprimanded in the way she had hoped for and believed had been promised.
…
In summary it is therefore likely that Mrs Jacobson’s Adjustment Disorder was materially contributed to by her employment.
…
Mrs Jacobson is currently fit for employment and to perform her usual duties as they were before she developed the Adjustment Disorder… She does not require any restrictions at her work place. The effect of any work related contribution to her conditions has now ceased, and…there is no evidence that Mrs Jacobson has suffered any permanent impairment as a result of the previous Adjustment disorder.
…
Mrs Jacobson’s longitudinal history suggests that she has required psychotropic medication in the past. As she has, over time coped with more significant stressors in the past, she will do so again and her prognosis is good.”
93. During evidence in chief, Dr Reddan stated, in relation to Dr Hoey’s report of October 2003, that when a treating psychiatrist has a patient that is involved in any sort of legal proceedings difficulties arise when they start to opine about aetiology. This is because, in Dr Reddan’s opinion, a treating psychiatrist cannot be detached and objective.
94. In relation to the applicant’s past psychiatric history, Dr Reddan confirmed the applicant had denied any previous psychiatric treatment. Counsel for the respondent put to Dr Reddan that Dr Hoey was similarly not aware of any previous psychiatric history and that it was Dr Hoey’s opinion that the applicant would have remembered her history but chosen not to tell her because of embarrassment. Dr Reddan agreed with Dr Hoey that the applicant would have remembered her psychiatric history and stated that embarrassment might be one reason for failing to disclose it. However she considered it odd that the applicant did not tell Dr Hoey and stated it would be unlikely to be explained just by embarrassment. Dr Reddan offered the alternative explanation that, sometimes, people elect not to tell their treating psychiatrist things because “it’s about creating a kind of evidence for a claim” or the applicant might have “split things off in her life as…almost a kind of denying reality in a way”.
95. Dr Reddan confirmed that, in the past, anti-depressants have been prescribed to the applicant for anxiety disorders as well as depression. However she considered the applicant had been prescribed anti-depressants primarily for a depressive state. Dr Reddan stated, after reviewing the applicant’s medical notes from the 1970s and 1980s, that the notes pointed to at least one, and probably two, previous episodes of depression. She then stated that if people have had one episode of depression they tend to be more vulnerable to future episodes and, after two episodes, the vulnerability increases.
96. In relation to the applicant’s physical condition, Dr Reddan stated that thyroid conditions typically present with psychiatric conditions and she wondered whether the anaemia and hypothyroidism reduced the applicant’s ability to cope with work. She stated that the hypothyroidism may have made the applicant anxious and depressed and may have also impacted on her perceptions of what was occurring.
97. In the context of the applicant’s previous medical and psychiatric history, Dr Reddan gave the opinion that the applicant’s adjustment disorder was multifactorial in cause.
98. During cross examination, Dr Reddan conceded that she had only seen the applicant once and that, in relation to an adjustment disorder, the stressor that aggravates or contributes to the development of the condition may in fact be a single event or multiple events. Dr Reddan confirmed that, like everything, some people are more prone to developing an adjustment disorder than others. She stated that she had not changed the conclusion she reached in her report but she believed the additional information provided to her was suggestive of the applicant’s mental state deteriorating for a number of reasons and from that deterioration a perception of harassment or persecution could arise.
99. However Dr Reddan, after examining the statements of Mr Walker and Ms Tomoana, agreed with counsel for the applicant that, if the behaviours attributed to Mr Dudley were accepted as true, then they could be the sorts of stressors which bring on an adjustment disorder.
Dr Barron, Psychiatrist
100. Dr Alistair Barron provided a report to the applicant’s solicitors dated 22 February 2002 (Exhibit C). He initially saw the applicant on 5 November 2001; and saw her on three further occasions before transferring her care to Dr Hoey.
101. The applicant presented on 5 November 2001 with complaints of tension headaches, anxiety with panic attacks and insomnia. She stated these problems had started “several years ago” but that she did not do anything about them, or complain about them, as she did not want to be a troublemaker and expected things to get better.
102. Dr Barron recorded a physical history from the applicant as to a cerebral haemorrhage she had experienced at birth which resulted in hydrocephalus, which did not require any definitive treatment. She reported a history of migraines to the doctor which she explained were different from the headaches she was currently suffering. She informed Dr Barron that the headaches she was suffering at that time did not cause visual problems or nausea.
103. The applicant denied any prior emotional difficulties requiring professional intervention and related a history of workplace difficulties to the doctor. Dr Barron opined:
“Mental Status:
…
There was no evidence of a thought disorder, including delusions, although the content of her thoughts indicated marked preoccupation regarding her difficulties at work, expressing feelings of helplessness and hopelessness, expecting an adverse outcome. Her mood was anxious and depressed with appropriate affect.
She denied and did not appear to have any auditory or visual hallucinations.
…
In summary, Mrs Jacobson is a 49 of [sic] female who has worked for Telstra Corporation since 1969… During the last two years she has not felt supported by the supervisor, has felt that she has not received adequate ongoing training to the point that she is feeling redundant, helpless and hopeless about her future which has resulted in her developing a psychiatric condition – including Adjustment Disorder with mixed features of depression and anxiety plus Panic Disorder with Agro phobia.
...
There have been no other outside stressors – current or before, with her current physical condition being well managed.
Therefore her current psychiatric condition is related to her work experience and thus she has suffered an injury related to her current work place, as defined under the worker’s compensation act [sic].”
Other Medical Evidence
104. In September 2001, the applicant was referred to a psychologist by Telstra through their Employee Assistance Program. The applicant saw Truce Wright of Davidson Trahaire on six occasions during the period 3 September 2001 to 25 October 2001. Ms Wright provided two reports, which were included in the T documents: a report of 14 September 2001 (T9) and a report of 26 October 2001 (T17).
105. In her first report, Ms Wright expressed concern over the applicant’s deepening depression and its affects on her ability to work. She suggested that the applicant see her general practitioner about taking time off work and trying some antidepressant medication.
106. In her later report, Ms Wright states:
“In my opinion, Merrel would appear to be suffering from serious depression and anxiety.
She describes the source of her distress as being ongoing harassment ie over a period of a year or more from a previous team leader. The nature of the comments made were such as to undermine her confidence and question her ability. …
There do not appear to be any other significant triggers that may have led to her current conditions.”
107. Dr Christopher Staples, Neurologist, provided reports dated 3 February 2001 (Exhibit 13) and 29 March 2001 (Exhibit 11) but did not give evidence at the hearing. The applicant was referred to Dr Staples in relation to her migraines.
108. In his report of 3 February 2001, Dr Staple relevantly states:
“…She has a congenital arrest hydrocephalus and abnormality of the left cerebellum and vermis but they are not the cause of her headaches. Occasionally, hydrocephalus can worsen with age and should her ataxia deteriorate then she needs further imaging and review.
There has been a lifelong tendency to migraine which has always been worse premenstrual and was aggravated by the oral contraceptive and most recently by a trial of HRT. …
The other neurological problem is of a congenital arrested hydrocephalus with moderate enlargement of the lateral and third ventricles and to a lesser extent a fourth ventricle and a large CSF containing space in the region of the superior left cerebellar hemisphere and also involving the vermis. As a consequence she has always had a tendency to an unsteady gait. During her migraine her ataxia was worse, which is to be expected. …
Examination reveals a mild tandem gait ataxia and mild left limb ataxia, worse in the lower limbs. Her speech is somewhat dysarthric. There is a complex congenital strabismus with cover testing. The right eye tends to intern and elevate, and the left the opposite. Otherwise, neurological examination is normal.”
109. In his report of 29 March 2001, Dr Staples refers to stabbing pain the applicant had been suffering in the left temporal and pre-auricular region, which had developed three weeks earlier and had gradually worsened. Dr Staples explains that the applicant had been admitted to hospital and was neurologically reviewed. He opines that there was no neurological explanation for her symptoms and that he did not believe she was suffering from trigeminal neuralgia.
110. Dr Chek Chan, the applicant’s general practitioner, provided the applicant’s solicitor with a report dated 30 March 2002 (Exhibit 10). At the time of his report, the applicant had been a patient of Dr Chan’s for some years. From 31 July 2001, for a period of approximately four months, Dr Chan saw the applicant on nineteen occasions in relation to problems she was having at work which were causing her severe distress. On several of those appointments, the applicant was crying throughout the consultation and on one occasion was “virtually inconsolable”.
111. On 20 December 2001, after her claim for compensation had been rejected, the applicant presented as extremely agitated and distraught, and had suicidal thoughts. Dr Chan opined that throughout this period the applicant had persistently felt acute anxiety sometimes amounting to a panic attack. She developed a phobia about entering her workplace, had a low mood, was irritable, lost self confidence and had sleep disturbances.
112. In September 2001, Dr Chan gave the applicant a medical certificate until the end of January 2002 and commenced her on antidepressant medication. However, due to financial constraints, the applicant returned to work in early January.
113. Although not a psychiatrist, Dr Chan ventured the following opinions:
“The stressors are the extremely unpleasant treatment she received from her previous team leader at work, and that her concerns were not adequately addressed. …
Her diagnoses are:
Axis I: Severe adjustment disorder with significant features of anxiety, and some of depression
Axis II : None
Axis III : None relevant.
Axis IV : stressors at work”
114. Other letters and medical certificates from Dr Chan, which are consistent with the contents of the above report, were included in the T documents (see T4, T6, T10, T11, T19, T25, T28 and T33), and the Tribunal has had regard to those documents in its consideration of this matter.
115. The Tribunal was also provided with an occupational rehabilitation services progress report prepared by Ms Penny Hill, occupational therapist with Work Solutions Group, dated 13 May 2003 (Exhibit 12). The applicant reported a history of workplace stress to Ms Hill and stated she was experiencing panic attacks which manifest as “shortness of breath and palpitations, tension headaches, muscle spasms, difficulty concentrating, difficulty communicating and fatigue”. The applicant reported difficulties in working, due to concentration problems, and difficulties functioning in the home environment, including an inability to do grocery shopping on her own or to catch public transport. Ms Hill devised a return to work program for the applicant which encompassed a graduated return to work scheme.
116. Finally, the Tribunal had before it the summonsed documents from the Royal Brisbane Hospital (Exhibit 5). The documents contain two referral letters prepared by Dr Warwick Middleton, psychiatrist (dated 29 June 1992). The first is addressed to Dr Reddan, in her capacity as Deputy Director of Psychiatry at Rosemont, referring the applicant’s husband, Barry Jacobson, for consultation, following Dr Middleton’s appointments with the applicant, her daughter Julie-Anne, and Mr Jacobson regarding the alleged sexual abuse of Julie-Anne by Mr Jacobson. The second is a referral letter to Dr Greg Pearson, psychiatrist referring the applicant for independent consultation.
117. Exhibit 5 contains the clinical notes of Dr Pearson in relation to his treatment of the applicant. These notes indicate the applicant saw Dr Pearson on nineteen occasions from 6 July 1992 to 14 December 1992. The notes reveal that the applicant discussed with Dr Pearson her feelings of guilt and anger following the sexual assault of her daughter by Mr Jacobson, Julie-Anne’s step father.
118. Dr Pearson has recorded that the applicant was suffering depression, which was worse when she was at home alone. It is noted that she has been working hard to distract herself from thinking about the assault.
119. The applicant is also recorded as having advised Dr Pearson that she had previously consulted a doctor seven years previously after having been in an abusive relationship prior to meeting Barry Jacobson, and that she had suffered post-natal depression after the birth of her son Ryan. The applicant’s mother is also recorded as having a history of depression, being moody and distant.
120. On her fifth appointment, on 3 August 1992, Dr Pearson notes that the applicant is troubled by intrusive thoughts, but that she has begun to challenge these cognitively. The following week, Dr Pearson reports that the applicant’s anger and resentment towards Mr Jacobson had re-emerged. On 24 August 1992, the applicant reported as having less angry, intrusive thoughts, and being happier.
121. On 5 October 1992, Dr Pearson prescribed medication to the applicant following her complaints of depression. The following week, the medication appears to have been increased and an improvement is seen over the following weeks in the applicant’s mood and thinking. However, Dr Pearson still notes the applicant to have been uptight and anxious.
122. Reductions in the medication were made over the next month, due to the sedative effects of the drugs, until the drugs were ceased on 30 November 1992.
Legislative Framework
123. The applicant has claimed compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). Section 14(1) relevantly 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.”
124. “Injury” is defined in section 4 to include a disease. In turn, “disease” is defined in section 4 to mean:
“(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…”
125. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court referred to the degree of contribution, by the employee’s employment to the injury or disease, required for the purposes of the Act and said:
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.” (at 328)
126. The issues for the Tribunal to determine in this case therefore are whether the applicant suffers from an injury or disease as defined in the Act; whether any such injury or disease arose out of or was contributed to in a material degree by her employment with the Telstra; and, if so, whether she suffers from incapacity to work or any impairment as a result of any such injury or disease for the purposes of section 14 of the Act.
Consideration
127. The applicant’s evidence was, in my view, dissembling but I have taken into account that she has suffered from an adjustment disorder which Dr Barron describes as “adjustment disorder with mixed features of depression and anxiety and panic disorder with agoraphobia”. I am satisfied that her adjustment disorder is a disease for which compensation may be payable under the Act provided a causal connection can be established, on the balance of probabilities, between her employment and the disease.
128. The applicant has a long history of employment by the respondent and Telecom, having first been employed in 1969. She said she resigned from Telstra in June 2003, but Exhibit D shows that her employment was terminated on grounds of medical incapacity with effect from 20 August 2003.
129. In October 2001, the applicant says she made an equal employment complaint against her supervisor, Dean Dudley. That was preceded by a written complaint dated 27 June 2001 (T26, folio 56). The written complaint evidences dissatisfaction with aspects of her employment in that the applicant claims she was denied proper performance reviews and denied access to training. She also claims to have been subjected to degrading and humiliating treatment by Mr Dudley. I accept that the applicant had grounds in fact for her perceptions.
130. The evidence of Dr Hoey satisfied me that the applicant decompensated because of circumstances arising in her employment. I am satisfied that the applicant was distressed by her perceptions of the actions of her supervisor, especially in circumstances of staff development and relationships. To some extent that distress was because of circumstances pertaining to the applicant and sometimes because of circumstances pertaining to other staff members, in particular Ms Tomoana.
131. Dr Hoey has made three reports and gave oral evidence. Her oral evidence satisfied me that as treating psychiatrist she had been under a misapprehension as to the applicant’s psychiatric history. In particular she was not told of a previous history in 1992 when, I am satisfied, the applicant received regular psychiatric treatment at the Royal Brisbane Hospital.
132. Before the Tribunal, the applicant denied such treatment and, I am satisfied, she failed to tell Dr Hoey about her previous psychiatric history. When the documents summonsed from the hospital (Exhibit 5) were put to Dr Hoey, she acknowledged no prior knowledge of the extensive history recorded in Dr Pearson’s clinical notes.
133. In O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234, Pincus J found that it was sufficient that a person’s employment contributes in a material way to the contraction, aggravation, acceleration or recurrence of that person’s psychiatric condition. His Honour found that it was not necessary to establish fault on the part of the employer or any unusual stress or special circumstances in the employment itself. His Honour further said:
“It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment.”
134. I am satisfied that the hospital records (Exhibit 5) demonstrate the applicant had a pre-existing psychiatric condition. Having regard to the medical evidence in this case, I am further satisfied, on the balance of probabilities, that condition was aggravated by the circumstances of the applicant’s employment with Telstra.
135. I am satisfied that the evidence in this case suggests that the only possible cause of the aggravation of the applicant’s psychiatric condition was her treatment in the workplace. The Tribunal accepts, based on the evidence of the applicant, Ms Tomoana and Mr Walker, that Mr Dudley behaved in an inappropriate and demeaning manner towards the applicant in the workplace, and that she reasonably perceived that she was being denied access to training and appropriate performance review mechanisms.
136. On this basis, I am satisfied that the circumstances of her employment contributed in a material degree to the aggravation of the applicant’s psychiatric condition. Accordingly, the applicant is entitled, pursuant to section 14 of the Act, to compensation for her injury.
137. The question remains, however, whether the applicant continues to suffer a compensable injury or whether the effects of the aggravation of her condition have ceased.
138. Up until 28 August 2001, the applicant only took one period of sick leave – the period in March 2001 when she was hospitalised. After hearing of Ms Tomoana’s complaint in August 2001, the applicant went on extended sick leave. Mr Watt visited the applicant at her house shortly thereafter and found her to be extremely upset and emotional (T5, folio 13).
139. On 16 October 2001, the applicant lodged her claim for compensation (T12).
140. On 23 October 2001, Mr Watt spoke with the applicant and explained the process of applying for workers’ compensation (T16, folio 27). When asked about the events leading up to her stress claim, the applicant recounted to Mr Watt a history of demeaning personal attacks by Mr Dudley, as well as a failure to provide her with performance reviews and training plans. That account is consistent with the evidence the applicant has given in these proceedings. Mr Watt then lodged a Health and Safety Incident Notification with Comcare (T15).
141. Between August and December 2001, when the decision to refuse her claim was made, the applicant underwent counselling. She said that during this time she was extremely upset, became angry with her children over trivial matters, and would break down if she walked in the street in which her workplace is located.
142. On 11 December 2001, the applicant’s claim for compensation was rejected. On 28 December 2001, that decision was affirmed following internal reconsideration. After her claim was refused, the applicant became suicidal. She was very distressed and felt that life was not worth living.
143. In January 2002, the applicant commenced a return to work program. She initially worked two days per week, but later this was increased to full-time work by May 2003. I am satisfied that the effects of the aggravation of The applicant’s psychiatric condition had ceased by May 2003 when she successfully completed her return to work program. If there was a continuing incapacity after that time it was caused by factors not connected with or arising out of the employment. The material contribution of her employment to the aggravation of the pre-existing condition had ceased by May 2003.
Decision
144. For the reasons given above, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant suffered a compensable aggravation of a pre-existing psychiatric condition as a result of her employment with Telstra. The Tribunal further finds that the effects of the aggravation of the pre-existing psychiatric condition ceased upon the applicant’s return to work on a full-time basis in May 2003.
I certify that the 144 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed: Sarah Oliver
AssociateDates of Hearing 4 and 5 December 2003
Date of Decision 14 September 2004Counsel for the Applicant Mr P Smith
Solicitor for the Applicant Richardson McGhie
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Sparke Helmore
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