JOEL ESKINAZI and COMCARE
[2009] AATA 241
•9 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 241
ADMINISTRATIVE APPEALS TRIBUNAL No. V 200601132
GENERAL ADMINISTRATIVE DIVISION
Re JOEL ESKINAZI Applicant
And
COMCARE
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member and Dr K. Breen, Member Date:9 April 2009
Place:Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
COMPENSATION – depressive and anxiety disorder – whether an injury – whether material contribution by employment
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1)
Comcare v Canute (2005) 158 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
9 April 2009 G.D. Friedman, Senior Member and Dr K. Breen, Member
1. Joel Eskinazi worked as a Customer Service Officer with the Australian Taxation Office (ATO) at Moonee Ponds. After a temporary placement at a city location he told his employer that he did not wish to return to Moonee Ponds because of his health concerns and the need to be closer to his daughter who had special needs. Mr Eskinazi claims that his employment, including the employer’s refusal of the request, aggravated his anxiety and depression.
ISSUES
2. The issues before the Tribunal are:
·Did Mr Eskinazi suffer from an illness or injury which resulted in impairment or incapacity to work? If so:
·Did Mr Eskinazi’s employment with the ATO cause or contribute to his condition or its aggravation to a material degree? If so:
·Was the illness or injury suffered as a result of a failure by Mr Eskinazi to obtain a promotion, transfer or benefit in connection with his employment?
LEGISLATIVE BACKGROUND
3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in effect at the relevant time, provides that:
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.
Injury is defined in s 4(1) of the SRC Act as:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
In s 4(1) disease includes any ailment suffered by an employee. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Aggravation includes acceleration or recurrence.
DID MR ESKINAZI SUFFER FROM AN ILLNESS OR INJURY WHICH RESULTED IN IMPAIRMENT OR INCAPACITY TO WORK?
4. There was no dispute between the parties, and the Tribunal accepts, that Mr Eskinazi suffers from a disease being depressive disorder and/or anxiety, which is a psychological condition outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439). Dr D Shap, Mr Eskinazi’s general practitioner, said that he diagnosed anxiety in September 2005 and depression in October 2005. On 26 October 2005 Dr S Turnbull, medical adviser-occupational health, Health Services Australia, stated that Mr Eskinazi suffered from major depression. After considering the medical and other evidence the Tribunal finds that the condition manifested itself in about September or October 2005.
DID MR ESKINAZI’S EMPLOYMENT WITH THE ATO CAUSE OR CONTRIBUTE TO HIS CONDITION OR ITS AGGRAVATION TO A MATERIAL DEGREE?
5. Mr Eskinazi told the Tribunal that he was born in France and migrated to Australia in 1979. He said that he completed an Advanced Diploma in Business, and in June 2003 he joined the ATO as a Customer Service Officer at Moonee Ponds, where he worked in a call centre answering telephone queries from the public about personal income tax.
6. Mr Eskinazi said that initially he enjoyed working at Moonee Ponds, and received positive feedback from his supervisors and clients. He felt healthy and enthusiastic. However after several months he developed health problems and became anxious about his medical condition. He also began to feel the effects of working long days which involved two train journeys each way. Mr Eskinazi stated that the train network was experiencing delays, which caused him stress because he had to leave his home in Sandringham early to ensure he arrived at work on time. He said that he wanted to work closer to the city because his older daughter suffers from mental illness, and he and his wife needed to be available to take his daughter to medical appointments.
7. In relation to his work environment, Mr Eskinazi stated that in January 2004 he spent two weeks at the Queen Street office, which was a business tax call centre, but after completing his training he concluded that he was not suited to the role and resumed his previous position at Moonee Ponds. Mr Eskinazi said that by this time he was experiencing some difficulty with call centre work, which he attributed to concerns about his own health, including abdominal pain and a cancer scare, and worries about his daughter’s psychiatric issues, which he said affected his ability to focus adequately on telephone queries from the public.
8. Mr Eskinazi commenced a temporary position at the Casselden Place Shopfront office in the city in February 2004. He said that the position involved answering personal tax enquiries from the public as a face-to-face counter officer. Mr Eskinazi stated that he enjoyed the work because he could communicate more effectively with the public in person, where his strong French accent was less of a problem.
9. However the favourable situation did not last. Mr Eskinazi explained that his health began to decline and he found the job more demanding. He said that in October 2004 he was told that he was to return to Moonee Ponds the next week. He was upset and stated that he could no longer perform the duties at Moonee Ponds and believed he did not fit in at that office. On 9 November 2004 he was assessed by Dr D Gras, occupational physician, who concluded that he was fit for work at Moonee Ponds or any other location, but Dr Gras suggested that for compassionate reasons Mr Eskinazi not be returned to Moonee Ponds. On 29 October 2004 Mr Eskinazi completed an Application for Mobility in the ATO for compassionate and personal reasons, in which he nominated City/Cheltenham/Dandenong/Box Hill as his preferred locations. He said that although he had specified Small Business (Queen St); Geelong and Moonee Ponds all lines as locations in which he was not prepared to work, he was offered a position at Queen Street or a return to Moonee Ponds, both of which were unacceptable. However he was told that he could remain at Casselden Place on compassionate grounds in a short-term position until 31 January 2005.
10. Mr Eskinazi said that he was pleased to remain at Casselden Place, but was told at the end of January 2005 to return to Moonee Ponds. By this time he was becoming stressed and depressed, and his daughter’s condition had worsened. On 31 January 2005 he applied for ten weeks’ leave because of his daughter’s situation and his inability to perform his duties because of ill-health. He said that he also hoped that during his absence an alternative position might be found in a location acceptable to him.
11. During his period of leave from 1 February 2005 to 26 April 2005 Mr Eskinazi travelled to France to visit relatives. He said that on his return he was able to remain at Casselden Place until October 2005. Mr Eskinazi said that his medical situation was improving and he was enjoying his work at Casselden Place. On 7 September 2005 his manager told him he was to return to Moonee Ponds on 1 November 2005. Mr Eskinazi told the Tribunal that this was unacceptable, and he applied for a number of positions within the ATO but was unsuccessful. On 22 September 2005 Dr Shap wrote a letter of support recommending that Mr Eskinazi be located at a central Melbourne or a Dandenong office of the ATO to be closer to his daughter and to reduce the stress due to his daughter’s mental illness. Dr Shap recommended that Mr Eskinazi undertake minimal telephone work because of the stress. On 19 October 2005 Mr Eskinazi was assessed by Dr Turnbull, who concluded that Mr Eskinazi could not perform telephone work for three to six months as a result of stress arising from his daughter’s illness, and that he was not fit to work at Moonee Ponds. Mr Eskinazi said that at this time he was depressed and was taking anti-depressant medication for the first time.
12. On 18 November 2005 Mr Eskinazi was advised that a permanent redeployment position was available at Casselden Place in a non-telephone role in the Office of the Chief Tax Counsel, but he made it clear that he did not wish to move to a different area of the ATO, and was taking a new medication. On 30 January 2006 Mr Eskinazi was referred to a psychologist by the ATO for rehabilitation assessment but said that he refused to co-operate because no one had discussed with him the need for rehabilitation. He stated that in February 2006 his work performance suffered because he was spending time dealing with his problems concerning his health and work placement.
13. Mr Eskinazi said that on 9 March 2006 a meeting was held to discuss management’s concern about his performance. He said that on 14 March 2006 he was issued with an official direction to perform his duties and attend a medical examination. He attended Dr Gras on 15 March 2006. On 16 March 2006 he was directed to report to Moonee Ponds the next day on the basis that Dr Gras had deemed him fit for all work except telephone work. He said that he was shocked, and even more so when he obtained Dr Gras’ report dated 23 March 2006 in which Dr Gras recommended that he should not return to Moonee Ponds at that time.
14. Under cross-examination Mr Eskinazi agreed that before commencing with the ATO he had worked in West Footscray, which was located about the same distance from his home as was the Moonee Ponds office, although he stated that he drove his car to West Footscray as public transport was not convenient. He said that initially he did not seek a transfer from Moonee Ponds because at that time his wife had the primary responsibility for his daughter’s care. He agreed that in October 2004 he and his wife made the decision to exclude his daughter from the family home, but reiterated that the need to be available for his daughter, plus his medical issues, were the reasons he lodged his application for mobility in October 2004. In relation to his daughter, Mr Eskinazi stated that she required ongoing support from himself and his wife, even when she was living away from home. This included taking her to medical appointments. He emphasised that he needed to be located close to hospitals in Clayton and Richmond when she was admitted as an inpatient several times each year.
15. Mr Eskinazi agreed that he began to feel unhappy at Moonee Ponds in about December 2003 because of a number of factors, including his own health problems, his daughter’s medical issues and a decision by the ATO not to pay staff for commencing before the start of their shift. He also said that the job and his supervisors began to irritate him. He agreed that he did not lodge a complaint about his duties, but said that he told Dr P Smith, consultant psychiatrist, that he did not like the attitude of some staff at Moonee Ponds, and that the call centre position did not really suit his talents or aspirations. Mr Eskinazi conceded that he had returned to Moonee Ponds for one or two days in 2004 when officers from other locations had been asked to work there during staff shortages. He said that he did not express any concern to supervisors or reluctance to work there on these days, but agreed that he had developed an aversion to Moonee Ponds after he left that location in February 2004.
16. Mr Eskinazi denied that his daughter’s issues were his major problem, and said that the ATO was the problem from October 2004. He agreed that he told Dr Smith that he felt he had been stabbed by his employer because he was offered a position in Queen Street, when he had specifically requested not to be sent there, and felt that the ATO was not interested in helping him. He also agreed that he had been given at least two months from 29 November 2004 to remain at Casselden Place and to consider his situation, but did nothing about finding a suitable position because he could not choose between two unacceptable options.
17. In relation to a possible return to Moonee Ponds Mr Eskinazi said that he was shocked to learn that Dr Gras had assessed him as being capable of returning to duty at that office. He agreed that his performance at Casselden Place began to deteriorate from January 2005 as a result of the work stress and ongoing issues concerning his daughter. He said that he needed a break from these stresses and took three months’ leave, during which he travelled to France to see his brother. Mr Eskinazi said that on his return on 26 April 2005 he did not seek other positions. He agreed that he managed his duties well until 7 September 2005 when he was told to return to Moonee Ponds.
18. Mr Eskinazi said that he submitted a number of unsuccessful job applications, but the ATO did not help. He also said that in September 2005 he commenced counselling under the Employment Assistance Program for issues involving work, his daughter’s condition and other matters that were affecting his life.
19. Mr Eskinazi agreed that from January 2006 his emotional state was becoming worse, and he spent time at work making telephone calls of a personal nature and relating to his situation within the ATO. He said that by February 2006 he was spending up to four hours per week on such calls, and his relationship with management had deteriorated. He said that the ATO did not follow its own protocols by failing to find a position that took into account his medical condition. He denied that he was a disruptive influence at Casselden Place at this time. In relation to the meeting on 9 March 2006 Mr Eskinazi agreed that a number of issues concerning his work performance were discussed and that he had criticised his manager at Moonee Ponds, whom he considered to be unsympathetic and unhelpful.
20. He agreed that following the meeting he had been unhappy with the decision to end his placement at Casselden Place. He acknowledged that there were continuing allegations about his work performance and his attitude towards other staff, but denied that he had used inappropriate language.
21. Mr Eskinazi said that Dr Gras had recommended against a return to Moonee Ponds, and he could not face the prospect of working there because of everything associated with that office, including the staff and the design of the office and the toilets. He agreed that he became hostile but denied that he was abusive. He said that he ceased work on 16 March 2006. In his claim for compensation Mr Eskinazi alleged that the factors aggravating his condition included persistent and unreasonable requests to return to Moonee Ponds; a direction to return to Moonee Ponds; and unreasonable demands over several months. He said that he was harassed by management to return to Moonee Ponds, despite medical evidence that he should not do so.
22. Dr Shap wrote a number of medical certificates for Mr Eskinazi and several reports. On 22 September 2005 in a medical certificate he requested that Mr Eskinazi be able to work in a city location to enable him to respond quickly in case of a family crisis. Dr Shap said that Mr Eskinazi found telephone work too difficult and stressful given his problems at home. On 20 February 2006 Dr Shap said Mr Eskinazi’s health may be damaged by any move from Casselden Place, although he agreed in evidence that Mr Eskinazi had not consulted him about depression or anxiety since 24 November 2004. Under cross-examination Dr Shap agreed that he had accepted Mr Eskinazi’s version of events at the workplace and their contribution to his medical condition, and that on at least two occasions Mr Eskinazi had either dictated, or had suggested the contents of, letters recommending an appropriate work location.
23. In a report dated 11 November 2004 Dr Gras stated that Mr Eskinazi was referred by the ATO for an assessment of his suitability for his normal position at Moonee Ponds and for telephone work generally. Dr Gras said that Mr Eskinazi suffered from anxiety and concern about the health of his daughter, but no formal medical condition that would impair his ability to perform his normal work as a customer service officer or to be located at Moonee Ponds. However Dr Gras recommended that reduced travel time arising from a relocation to an office closer to his home would assist with the care of Mr Eskinazi’s daughter.
24. In a further report dated 23 March 2006 Dr Gras stated that Mr Eskinazi has chronic anxiety and depressed mood that have focussed on the psychological health of Mr Eskinazi’s daughter. This had an impact on his well-being and had influenced his interpretation of events in relation to his work situation. Dr Gras felt that Mr Eskinazi’s situation had fluctuated in the previous few months and was likely to continue because his daughter’s condition was unlikely to improve. Dr Gras said that Mr Eskinazi would have difficulty returning to telephone work, but was otherwise medically fit to be re-deployed within the ATO at a range of locations, although he felt that a return to Moonee Ponds at that time may be counter-productive because of Mr Eskinazi’s anxiety symptoms arising from the need to assist with the treatment of his daughter’s illness.
25. In a report dated 5 June 2007 Dr Y Greenberg, consultant psychiatrist, stated that initially Mr Eskinazi claimed he wanted to remain at Casselden Place on compassionate grounds for convenience so he could be close to the Melbourne Clinic to visit his daughter. He then decompensated or began to complain of symptoms of depression and anxiety when his requests for special consideration or secure placement at Casselden Place were challenged or thwarted. Dr Greenberg said that Mr Eskinazi told her that the ATO only pretended to help and tried every few months to send him back to Moonee Ponds or the other place he did not want to go, instead of trying to find a position for him at Casselden Place. She reported that he told her that when they forced him to Moonee Ponds his general practitioner had stated: I’ll put you off sick.
26. Dr Greenberg concluded that the issues which were not work related were probably more challenging and far more likely to cause mental illness than the refusal of his employer to accommodate his needs or preferences with regard to transfer. She said that any event or circumstances in the course of his carrying out his employment with the ATO would at most have had a minimal or negligible effect in comparison to the non-work issues and problems, and she believed that his condition would probably have occurred notwithstanding his employment.
27. In a report dated 21 June 2006 Dr L Botvinik, consultant psychiatrist, said that Mr Eskinazi’s depressive illness with anxiety symptoms condition is probably multifactorial in origin and may include a family/genetic predisposition to mood disorder; early life experiences; Mr Eskinazi’s personality; and is clearly exacerbated by work-related stressors. Dr Botvinik suggested that Mr Eskinazi should be re-deployed to Casselden Place if possible, and that a return to Moonee Ponds would pose a serious risk of relapse of his symptoms. He noted that Mr Eskinazi’s daughter had a significant psychiatric illness which impacted on the family. Dr Botvinik also felt that Mr Eskinazi should recover fully over the following few months, particularly if his employment situation was resolved to his satisfaction.
28. In oral evidence Dr Botvinik stated that he was Mr Eskinazi’s daughter’s treating psychiatrist and was prepared to see Mr Eskinazi for assessment but would be unable to treat him on an ongoing basis. He agreed that his conclusions about the effect of employment at the ATO on Mr Eskinazi’s medical condition were based largely on the history given to him by Mr Eskinazi. He also agreed that Mr Eskinazi did not tell him about an offer, on compassionate grounds, of relocation to a position at Queen Street, which Mr Eskinazi had refused.
29. In a report dated 6 September 2007 Dr A Kaplan, consultant psychiatrist, stated that Mr Eskinazi was suffering from an adjustment disorder with mixed anxiety and depressed mood, which was consistent with Mr Eskinazi’s description of the stresses to which he was subjected in the course of his work at the ATO and the other stresses in his life. Dr Kaplan said that, in the absence of any further significant stress, Mr Eskinazi was likely to be capable of gradually increasing his hours at work and eventually returning to full-time duty, but not telephone work and not at Moonee Ponds or Queen Street.
30. In oral evidence Dr Kaplan said that his diagnosis and recommendations were based on the history given to him by Mr Eskinazi and took into account reports by other medical professionals. Under cross-examination he said that he accepted the truthfulness of Mr Eskinazi’s history and the perceptions expressed by Mr Eskinazi about the causes of stress at work, and he agreed that that he did not explore in any detail the non-work stressors such as the issues faced by Mr Eskinazi’s daughter, although he acknowledged that this was the cause of considerable stress for Mr Eskinazi.
31. In a report dated 3 May 2006 Dr Smith stated that Mr Eskinazi suffers from an anxiety/depressive disorder arising from a number of identifiable psychosocial stressors and would be unable to perform call centre duties, although clerical or administrative work not involving incoming telephone tasks at ATO offices would be possible. However he regarded Moonee Ponds as an unsuitable workplace for Mr Eskinazi because of a virtual phobic anxiety reaction to returning to work there. In a further report dated 3 January 2007 Dr Smith noted an improvement but stated that Mr Eskinazi continued to have a partial occupational incapacity for three to six months. He recommended ongoing treatment and emphasised the need for management and for Mr Eskinazi to adopt a flexible approach to his workplace duties.
32. In a statement dated 2 October 2007 Ms T Hutson, formerly Assistant Director at the ATO, Moonee Ponds, stated that she commenced at that office in May 2004 when Mr Eskinazi was already at Casselden Place on a temporary placement. She said that in October 2004 Mr Eskinazi applied to be placed in a location that did not involve telephone duties, based on compassionate grounds, which he described as his health problems and issues relating to the welfare of his daughter. Ms Hutson said that the ATO arranged an assessment by Dr Gras and, following his recommendation, Mr Eskinazi was offered a permanent position at Queen Street, which Mr Eskinazi refused. She stated that Mr Eskinazi was able to remain at Casselden Place until January 2005, when he was asked to return to his substantive position at Moonee Ponds. After he returned from extended leave on 26 April 2005 a temporary position became available at Casselden Place until 31 October 2005.
33. Ms Hutson said that a further medical assessment was carried out on 26 October 2005 by Dr Turnbull, who recommended non-telephone work, and Mr Eskinazi was re-deployed at Casselden Place for an additional period. She said that efforts were made to assist him to find an alternative position in another location that was acceptable to him but they were unsuccessful. In January 2006 he was asked to return to Moonee Ponds but refused to do so. She said that she received reports from Casselden Place that Mr Eskinazi was disruptive in the workplace, and at a meeting on 9 March 2006 Mr Eskinazi was told that he could no longer remain at Casselden Place. On 14 March 2006 she directed him to perform his normal duties and to attend a further medical assessment. Ms Hutson stated that Dr Gras advised that Mr Eskinazi was unfit for telephone duties but could return to Moonee Ponds, and he was directed to commence alternative duties at that office. She said that Mr Eskinazi told her he was seeking urgent medical advice, and he ceased work after the meeting held on 16 March 2006.
34. In a statement dated 3 October 2007 Ms A Campbell, formerly Shopfront Manager, Casselden Place, said that she met Mr Eskinazi when she took up her position in August 2005. She stated that on 7 September 2005 she confirmed with him that he would be required to return to Moonee Ponds on 1 November 2005, but he said he would not do so because he needed to work closer to home due to personal commitments. Ms Campbell said that she offered support by arranging counselling and assisting him to apply for positions within the ATO, as there were no positions available at Casselden Place.
35. Ms Campbell said that from about October 2005 she had concerns about his apparent unwillingness to perform his duties and his disruptive behaviour in the workplace. She attended the meeting on 9 March 2006 at which Mr Eskinazi was advised that he could not remain at Casselden Place, and was aware that on 14 March 2006 Mr Eskinazi was given a formal direction to perform his normal duties. Ms Campbell stated that on 16 March 2006 she felt threatened by Mr Eskinazi’s hostile demeanour towards her, and she called a security officer, who remained with her until Mr Eskinazi left for the day.
36. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court applied Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and held at 323:
…once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.
37. In Comcare v Sahu-Khan (2007) 156 FCR 536 Finn J adopted the conclusions of the majority in Comcare v Canute (2005) 158 FCR 232 on the question of material contribution required for liability in respect of an ailment, and referred to an evaluative threshold below which a causal connection with an ailment may be disregarded. He held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment.
38. In considering the medical and other evidence, including Mr Eskinazi’s history given to medical practitioners and his evidence at the hearing, the Tribunal is satisfied that at the time of diagnosis of his condition of depression/anxiety in about September or October 2005, the contributing factors were his concerns about his daughter’s psychiatric condition and his own health issues. His concerns about stress at work were not raised with medical practitioners until at least 17 March 2006, after he ceased work, when he mentioned work stress to Dr Shap for the first time.
39. In relation to the requests by the ATO for Mr Eskinazi to return to his substantive position at Moonee Ponds, the Tribunal takes into account that he chose to apply for, and accept, the position while living in Sandringham. Initially he was happy with the work environment and the duties at Moonee Ponds. There were no complaints by him during this period, and supervisors had not reported any complaints about his performance. The Tribunal considers that his concerns about the time and distance involved in travelling to and from his home by public transport were not work-related factors that caused or aggravated his depression/anxiety.
40. The Tribunal accepts the evidence from Ms Hutson that when Mr Eskinazi was asked to return to Moonee Ponds from October 2004 he told her about his health issues and his daughter’s medical problems and wanted a permanent move away from Moonee Ponds, and she did all she could to facilitate his request by trying to locate suitable positions in other locations. This includes an offer of a position at Queen Street in accordance with the recommendations by Dr Gras, but Mr Eskinazi refused as a matter of personal preference, not for medical reasons, even though that position was within his capabilities and addressed his immediate concerns of accessibility to his daughter and improved access by public transport.
41. The Tribunal also accepts that during Mr Eskinazi’s period of leave from February 2005 to April 2005 Ms Hutson continued to seek redeployment for him on his behalf, and that he was able to remain at Casselden Place until 31 October 2005 when all avenues had been exhausted and he was requested to return to Moonee Ponds. Dr Turnbull’s report of 26 October 2005 noted that Mr Eskinazi’s concerns about returning to call centre work at Moonee Ponds were about travel and his daughter’s illness.
42. Mr Eskinazi’s refusal to consider permanent redeployment to a suitable position at Casselden Place in November 2005, together with his threat to claim compensation if he was moved, demonstrates that it was his actions, rather than those of the ATO, that contributed to his dissatisfaction. Mr Eskinazi claimed that management harassed him in its efforts to force his return to Moonee Ponds, and that this resulted in conflict with senior officers of the ATO. However he was aware that the position at Casselden Place was a temporary arrangement. The Tribunal is satisfied that there was no harassment of Mr Eskinazi by the ATO.
43. There is no evidence to support Mr Eskinazi’s claim that he was unable to return to Moonee Ponds because of the design of the office or the toilets, or because of the people working there. This leads the Tribunal to conclude that Mr Eskinazi was an unreliable witness who exaggerated his symptoms, the relationship of those symptoms to his work situation and the impact of his daughter’s illness in an effort to achieve his desired outcome. The medical evidence was based largely on a history given by Mr Eskinazi, much of which was selective and was not supported by the evidence as a whole.
44. The Tribunal concludes that the requests over several months and the direction by the ATO for Mr Eskinazi to return to his substantive and permanent position at Moonee Ponds in a non-telephone capacity were reasonable and did not contribute in a material way to any aggravation of his psychiatric condition. In addition the Tribunal does not accept that the events of 16 March 2006 contributed materially to any aggravation his psychiatric condition. On that day Mr Eskinazi realised that he had failed to obtain a transfer to the only position he wanted, in the area at Casselden Place where he had worked temporarily since February 2004, and as a consequence he decided to cease work. In all the circumstances the Tribunal finds that work-related factors were the environment for his pre-existing psychiatric condition but did not cause the condition or contribute, in a material way, to its aggravation. Consequently there is no need for the Tribunal to consider the question of any failure to obtain a promotion, transfer or benefit in connection with his employment, and Mr Eskinazi is not entitled to compensation.
DECISION
45. The Tribunal affirms the decision under review.
I certify that the forty-five [45] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Mara Putnis
Associate
Dates of hearing: 16, 17, and 18 October 2007, 11, 12, 13 and 14 March 2008, 9, 10 September 2008, 27 February 2009
Date of final submissions: 2 April 2009
Date of decision: 9 April 2009Counsel for the applicant: Mr J Greentree (16, 17 and 18 October 2007), Mr B Coady (11, 12, 13 and 14 March 2008, 9 and 10 September 2008, 27 February 2009)
Solicitor for the applicant: Felipe Tellez
Counsel for the respondent: Ms A McMahon
Solicitor for the respondent: Sparke Helmore
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