John Hunter and Comcare
[2014] AATA 827
•4 November 2014
[2014] AATA 827
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0302
Re
John Hunter
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 4 November 2014 Place Brisbane (heard in Cairns) The decision under review is affirmed.
.......................[Sgd]..............................................
Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – whether necessary relationship between ailment and employment - whether reasonable administrative action – evidence does not support applicant’s claim – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14
CASES
Hart v Comcare [2005] FCAFC 16
Wiegand v Comcare [2002] FCA 1464
REASONS FOR DECISION
Deputy President P E Hack SC
4 November 2014
Introduction
The applicant, Mr John Hunter, was formerly employed by the Department of Sustainability, Environment, Water, Population and Communities.[1] In May 2012 he made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for a condition he described as "psychological injury, depression".
[1]That employment came to an end on 25 March 2013.
Initially, the respondent, Comcare, accepted liability to pay compensation to Mr Hunter. On reconsideration at the request of the Department the earlier favourable determination was revoked and the decision made to deny liability to pay compensation.
Mr Hunter seeks a review of that decision. His case[2] is that at least by late 2010 he was suffering from an adjustment disorder. He says that he was, or that he perceived that he was, bullied and harassed by his supervisor and that conduct aggravated the existing adjustment disorder over the course of late 2011 and throughout 2012 to convert it, by April 2012 at least, into major depression.
[2]As articulated in his written submissions, exhibit 30, at page 40.
For the reasons that follow, I have concluded that whilst Mr Hunter suffered from an "ailment" at the time of his claim, it lacked the necessary connection to his employment. Moreover, even had I concluded that the employment relationship had existed I would have concluded that the matters complained of by Mr Hunter as causing his ailment amounted to reasonable administrative action, taken in a reasonable manner, in respect of his employment. Accordingly the decision to deny liability ought be affirmed.
The legislation
By virtue of s 14 of the Act, Comcare is liable to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee, if the injury results in death, incapacity for work or impairment. Mr Hunter was an employee and there is no doubt his condition resulted in incapacity for work. The issue is whether his condition satisfies the description of "injury" in the Act.
The term is defined in s 5A(1) of the Act in this way:
(1)In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
On the case for Comcare, the words of exclusion have relevance thus it is necessary to have regard to s 5A(2) of the Act which explains "reasonable administrative action" in these words:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
In the injury/disease dichotomy of the Act it is plain that Mr Hunter's condition needs to be considered as a disease rather than as an injury simpliciter. The term "disease" is defined in s 5B(1) of the Act as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
A "significant degree" is defined by s 5B(3) of the Act to mean,
a degree that is substantially more than material.
In determining whether an ailment, or an aggravation, was contributed to, to a significant degree, by employment, s 5B(2) of the Act provides:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Finally, reference needs to be made to s 7(4) of the Act. It is in these terms:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Background
I start with reference to a chronology of some uncontroversial matters that emerge from the material. I take what follows essentially from the documentary material rather than from the evidence of the witnesses. I will deal with that evidence, and my views on it, separately.
Mr Hunter commenced his employment with the Department in August 2008. He was then aged 36 years. At least from 2009 he was based in Cairns. From mid-September 2010, his immediate supervisor was Mr Peter Cotsell. Mr Cotsell was not based in Cairns but visited the Cairns office when necessary. He remained Mr Hunter’s supervisor until he was replaced by Mr Neil Bensley. Mr Bensley was based in Brisbane but also visited Cairns on a regular basis. It is Mr Hunter's relationship with Mr Bensley that plays a very significant role in these proceedings. Mr Bensley became Mr Hunter's supervisor on 29 August 2011. He had known Mr Hunter as a work colleague since approximately October 2009. Prior to 29 August 2011 Mr Bensley and Mr Hunter were at the same level in the hierarchy of the Department although in different areas.
On the day of Mr Bensley's appointment he held a meeting with the various members of his new team. In the course of that meeting, Mr Hunter made a comment to Mr Bensley that might be regarded as somewhat insulting. Later that day Mr David Thompson, who held a similar position to Mr Hunter in another area, sent a long email to Mr Bensley which included these observations about Mr Hunter's comment and his mental health:[3]
Also Neil, please don't take John’s comments to heart. I am very worried about his state of mental health at present. He is going through a lot of personal issues trying to deal with his marriage separation/divorce and maintaining meaningful access with his children. I have been trying to help and guide him towards professional help. When we spoke last week, after his meeting with all you mob in Brisbane, he was incoherent and at best was rambling. I would like to go up to Cairns, if possible, and speak to John, man to man, and broker some professional help for him. He is in deep depression at the moment and I am worried about what could be a result if he doesn’t seek professional help.
Mr Bensley responded to that part of the email in these terms:[4]
As for John's comments, I have taken them with a grain of salt. Frankly, unless I hear something directly from you, I was intending to ignore his comments. I realise the change is a big one and it has naturally led to some issues coming to the surface. To my mind this is a good thing. It means people still care, it means we've got a chance to get this place working better. Which I believe is in all our interests. Your comments about John's health a [sic] more worrying and I will talk to you about them separately.
[3]Exhibit 1, page 139.
[4]Exhibit 1, page 139.
On 6 September 2011 Mr Bensley, Mr Hunter and other members of the working group met by telephone. Following that meeting Mr Bensley sent Mr Hunter an email. It read, in part,[5]
I am very concerned about your well being on the basis of some comments you made about your mental health and I would like to work with you to help you get the most appropriate support and advice at this time. I want you to know that on this particular issue you can talk to me without the need to worry about work. I'm here to help, this isn't about work anymore.
Mr Bensley provided advice on how Mr Hunter might access employee assistance plans or otherwise obtain assistance. Thereafter, it would seem that Mr Bensley and Mr Hunter had a discussion regarding Mr Hunter's state of mind. That then led Mr Bensley to send this email to another work colleague,[6]
FYI and note John and I have since discussed the content of the email below and discussed what triggered his reaction this morning. Essentially he reacted to being challenged and feeling targeted. We have come to an understanding on this issue and I do understand why he reacted. However, I have stressed to him that my concern for him is tied to the manner in which he reacted and the increasing frequency and openness of his references to the poor state of his mental health to myself and other colleagues. He recognised this was a concern but I did not get the impression he recognises the seriousness of the situation. Not unexpected and I certainly did not push the point.
There is still a lot to consider of course but I think the risk to John and immediate Departmental considerations are under control but please let me know if you think there is a gap in my approach that I need to consider.
[5]Exhibit 1, page 341.
[6]Exhibit 1, page 403.
Subsequently Mr Hunter attended upon a psychologist on 16 September 2011 (Friday). He reported the outcome of those discussions to Mr Bensley in an email of
18 September 2014 in these terms:[7]
[7]Exhibit 1, page 345.
Hey Neil,
Friday was the Counselling with the psychologist, I mentioned to you before, my consultation was 2.45 – it went for a fare [sic] while. I missed your calls as I was with the counsellor.
Apologies for the not getting back in time. It was a bit heavy, the counsellor gave me some specific directions to follow and advised that I should take time out, and in 2 weeks go back and see them.
It was a heavy session. I have been having anxiety attacks and memory lapses at work, also a bit of a blackout so [sic] last week while driving – pretty serious. I haven't spoken about them to anyone except the counsellor on Friday and she advised on some direct action to address the issues. But since it is an OH&S issue I think you should know.
Mr Bensley's response the following day is instructive. It reads:[8]
Hi John
Thanks for this, I appreciate the follow-up.
It is perfectly fine for you to take the week off as personal leave but for that many days I will need you to get a certificate. No rush on when you get it, sometime this week or next week will be fine. I think it is important also from an OH&S perspective as you say. You may need longer for instance. That is something the you and a health professional to work out, just let me know (as you have done on this occasion – thank you for that) if there is anything I need to consider regarding your work; whether that be now or in the future.
…
I am all for supporting you to get as much or as little counselling or other assistance that you may need. You don't need to tell me, just let me know when you'll be out of the office or apply for the personal leave so I know when you are offline. However, always happy to talk to you about these things if you think helps.
I hope you get better soon and well done to taking this step.
[8]Exhibit 1, page 345.
Later that day at 2:26 pm Mr Hunter responded.[9] It is enough to say that he referred to a memory lapse as a "symptom of severe depression" and the depression as something "now affecting [his] work activities". Mr Bensley’s response at 3:04 pm[10] was solicitous.
[9]Exhibit 1, page 344.
[10]Exhibit 1, page 344.
On 22 September 2011 Mr Hunter attended his general practitioner who made a note of "work issues and stress".[11]
[11]Exhibit 1, page 32.
Mr Hunter took various types of leave during October 2011. On the morning of
1 November 2011 Mr Bensley and Mr Hunter had a discussion. Mr Bensley summarised that discussion in an email at 12:50 pm that day in these terms:[12]
[12]Exhibit 1, page 384.
Hi John
As a follow-up to our discussion this morning I am writing to confirm that as previously planned you will not be flying to Brisbane this week: to facilitate the SEQC hosted workshop on Wednesday; and, to attend day two of the regional officer planning day. Please have a read of my summary of the situation and let me know if I have misinterpreted anything or if there is anything you would like to add.
This week you had difficulty arranging travel partly because it was left a bit late in the piece and partly because of the flow on effects of the Qantas industrial action and problems accessing the necessary departmental travel systems. As a consequence, you became very anxious as your travel was unable to be confirmed and necessary arrangements to manage your children and other affairs at home while away were uncertain. To reduce your anxiety we agree that you should not travel this week, we reallocated your meeting commitments, and teleconference facilities are available to hook you into the planning meeting.
Taking your previous advice about your his [sic] health concerns into account (September 2011), I asked if you would like some time off. You chose to take this afternoon off (half day) to recover. You said that this would be sufficient leave and you agreed to dial into the planning day tomorrow and Thursday as necessary.
I will get back to you on when best to dial in. You're welcome to sit in on the whole day but it is not necessary nor do I recommend it.
Mr Hunter responded later that same day saying, amongst other things,
I agree with the assessment and add the reason why I did not plan ahead was due to the earlier mental health issues that arose during the beginning of October.
On 8 December 2011 Mr Hunter made a written application[13] to move to part-time work, working three days per week, from 14 February 2012 to 1 October 2012. The reason provided for the application was:
Management of stress and mental health issues as directed by doctor and [Commonwealth] psychologist. Also to manage other demands.
Mr Bensley approved the request. When Mr Hunter was informed of the approval he emailed Mr Bensley to say it was "much appreciated".[14]
[13]Exhibit 1, pages 371.
[14]Exhibit 1, page 427.
In late February 2012 Mr Bensley undertook the mid-term review of Mr Hunter's performance. On 1 March 2012[15] Mr Bensley sent Mr Hunter an email setting out matters of particular concern. Mr Bensley concluded that Mr Hunter needed development. Mr Hunter did not respond directly to that email nor dispute the accuracy of Mr Bensley's account of the discussions however he did send an email on
[15]Exhibit 1, page 396-398.
5 March 2012[16] in which he referred to "feeling very anxious and upset about a few things". His email concluded,
[16]Exhibit 1, page 405.
I have mentioned before about communication and in a number of occasions I have said what you say and what comes across doesn't seem to reflect a positive relationship.
I would appreciate some feedback as these issues are affecting my health.
Mr Bensley responded later the same day in some detail. Additionally, he rejected
Mr Hunter's assertion that he had, on an earlier occasion, made a comment on the "darkness" of Mr Hunter's skin. He concluded by taking up Mr Hunter's complaint about his communication skills, saying:[17]
What is it about my communication that is causing you concern? How would you like me to communicate differently? Can you please have a think about this and provide me with some examples of what you would think I should do differently and why?
Happy to discuss.
Cheers
Neil
[17] Exhibit 1, page 404.
Mr Hunter sent an email on 8 March 2012 (with a copy to Ms Claire Howlett,
Mr Bensley’s supervisor). He extracted a passage from Mr Bensley's email of
1 March 2012 which he described as "being threatened" and continued,[18]
I agreed to any direction you have provided, and I understand you are obligated to point out concerns but is there a need to continually point out disciplinary options both verbally in the meetings and in writing? It's not helping my self esteem or helping me address my depression. I would and [sic] understand if I refused to improve but I want to improve and agreed to your direction. These are the ongoing examples of communication I am trying to express.
Given the allegation that Mr Hunter regarded himself as having been "threatened",
Ms Howlett forwarded Mr Hunter's email to the Director of the Department's Professional Standard Section.
[18]Exhibit 1, page 355.
On 27 March 2012 Mr Hunter sent Mr Bensley a doctor’s certificate under cover of an email which said, amongst other things,[19]
Again I have stated it is how things have been said and the context through communication that is causing me upset and grief. I don't know how else to state it considering I have tried on a number of occasions. But you said during our last conversation in regards to these issues that you "call it as you see it… and that I could do what I liked". What else am I to do? I don't know the procedure. I don't know what to advise you apart from what I have told you with my disclosure of my mental health illness that has been caused by work and notably the issues with communication that have triggered and prolong depression. Hence "the straw that broke the Camel's back" quoted by you from our conversations in the past dealing with these issues.
[19]Exhibit 1, page 352.
On 5 April 2012 Mr Hunter was seen by Dr Nicholas Jetnikoff, a consultant psychiatrist, to assess his fitness to perform his duties. In his report dated 17 April 2012[20]
Dr Jetnikoff concluded that Mr Hunter suffered from major depressive disorder of moderate severity with panic attacks.[21] It is of interest to note that Dr Jetnikoff said of the prognosis,
The prognosis is guarded until he receives appropriate treatment. His attitude and understanding of his condition are limited to seeing other people's behaviour as the cause, rather than looking at his own issues. Without appropriate treatment he is likely to become more withdrawn and his performance will decline further. At this stage he appears to be focused on taking more time off to avoid things he is anxious about, which is a strategy that is doomed to fail eventually.
[20]Exhibit 1, pages 34-43.
[21]Exhibit 1, at page 40.
In late May 2012 Mr Hunter lodged a formal grievance against Mr Bensley[22] claiming that Mr Bensley had "humiliated, offended, intimidated and distressed [him]".[23]
[22]Exhibit 1, pages 205 – 231.
[23]Exhibit 1, at page 206.
Then, on 25 May 2012, Mr Hunter signed a claim for compensation for conditions he described as "psychological injury, depression" which he said he had first noticed on
22 September 2011 and which he attributed to "workplace relationships" further particularised as "Language, behaviour, comments (inappropriate language, comments, racial remarks, characterisations)." The claim was accepted by determination of
29 August 2012 by which Comcare accepted liability to pay compensation for an injury it described as major depressive disorder, single episode.
In the meantime Mr Hunter had returned to work on 24 July 2012. He saw Dr Jetnikoff again on 6 September 2012. Dr Jetnikoff considered that his major depressive disorder and panic attacks appeared to have fully remitted.[24]
[24]Exhibit 1, pages 76 – 83 at page 80.
On 13 November 2012 the Director of the Department's Professional Standards Section wrote to Mr Hunter[25] advising that his allegations of misconduct against Mr Bensley had been determined to be unfounded and without substance.[26]
[25]Exhibit 1, pages 145 – 147.
[26]Exhibit 1, at page 146.
Then, on 5 December 2012, Comcare made the decision in issue in these proceedings, revoking the earlier favourable determination and denying liability to pay compensation to Mr Hunter. These proceedings were commenced on 31 January 2013.
Did Mr Hunter suffer from an ailment?
Comcare accepts that Mr Hunter suffered from an ailment. The concession is supported by the reports of Dr Jetnikoff, who saw Mr Hunter in April 2012 and September 2012, and by the evidence of Dr Varghese, who saw Mr Hunter in June 2013 and provided a report dated 15 August 2013.[27] Dr Varghese concluded that Mr Hunter was in a state of major depression in May 2012 although by mid-2013 his mental state constituted a mild adjustment disorder as a reaction to his circumstances, particularly the loss, by that stage, of his employment.
[27]Exhibit 9.
Importantly for present purposes, Dr Varghese expressed the opinion in his report that Mr Hunter's major depression had been developing insidiously for some time. He noted documents produced by the counselling service attended by Mr Hunter in 2011 suggested that depressive symptoms may have been present for a year at that stage. There is considerable support in the material for the view that Mr Hunter's depression developed much earlier than September 2011.
In 2009 Mr Hunter was having difficulties in his relationship with his ex-wife regarding access to the children of the marriage. In September 2009 he sought a leave of absence from his study towards a doctorate in biology because of those difficulties. In an application to the university signed by him on 9 September 2009 Mr Hunter described the reasons for his request for leave in this way:[28]
Family Court issues are affecting my ability to study. Stress and depression has made it impossible to develop the final draft of the Ph.D. Relationship issues and access to my children is a major issue.
The issue seemingly continued. In May 2010 Mr Hunter sought a further leave of absence, on this occasion referring to the engagement with his ex-wife as having been "emotionally exhausting causing undue stress which has affected me greatly". His request was supported by a letter from the solicitors who acted for him in the family law litigation which referred to the "very significant stress" experienced by Mr Hunter. Notwithstanding these matters, consent orders were made on 30 March 2010 resolving matters in dispute involving the children.
[28]Exhibit 10.
Additionally, there is evidence from Mr Cotsell, Mr Hunter's supervisor between September 2010 and August 2011, that in early 2011, many months before Mr Bensley came to be Mr Hunter’s supervisor, Mr Hunter had reported to Mr Cotsell that he was,
…deeply depressed primarily because of his personal situation related to his family situation.[29]
Additionally, according to Mr Cotsell, Mr Hunter told him that he was struggling with his doctorate and at times felt unmotivated and frustrated.
[29]Exhibit 23, paragraph 7. In his oral evidence Mr Cotsell was less confident about "deeply" but certain that "depressed" had been used: transcript page 176, lines 17 – 28.
I accept Mr Cotsell’s evidence. It seems to me not to matter whether Mr Hunter told him he was deeply depressed or simply depressed – on either view it seems plain, and
Mr Hunter’s case seems to accept, that he was afflicted by depression long before
Mr Bensley became his supervisor. Mr Hunter submits that Mr Cotsell’s evidence ought be given little weight, in part because of Mr Cotsell’s inability to recall key dates, details of discussions and Mr Hunter’s circumstances. I do not accept the criticism as valid. It would be more troubling if Mr Cotsell claimed a perfect recollection of the type of detail that Mr Hunter seemed to expect of him. Given that Mr Cotsell was being asked about matters some three years after the event, I would expect no more than that he would have an imperfect recollection of key dates and details of discussions. But the evidence is overwhelming that Mr Hunter was, as Mr Cotsell said, troubled by family matters during 2011 and at the time Mr Bensley became his supervisor.Dr Varghese, who compiled his report without the benefit of Mr Cotsell’s evidence, was asked to comment on the onset of the disease having regard to that evidence (and on the assumption it was accepted). He said:[30]
[30]Transcript page 109, lines 25 – 45.
So I'm asking you to give your comments about the content of Mr Cotsell's statement, accepting at face value that they're accurate for the present purpose?---Okay. If you accept Mr Cotsell's account, then the problems go back much earlier and have clearly to do with Mr Hunter's marital breakup and subsequent problems with respect to children. So he gives an account of early 2011 meeting up with Mr Hunter, and he was then deeply depressed, primarily because of his personal situation, related to the family situation, and he was struggling with his PhD. And so was under-motivated and frustrated. And then he goes on in subsequent meetings the - for instance, in item 12, which is in August, there were still ongoing effects of that marital issues. He reports himself as being not too great and not too well. So that suggests to me that the depression is of onset at least early 2011 or late 2012 [sic]. And while Mr Hunter was still under the supervision of
Mr Cotsell as against his account to me, that he got on very well with
Mr Cotsell and the problems began - well, there were some problems with the - the problems began with the appointment of the new director.Could I just ask you about a comment. You said early 2011 or 2012. Did you mean - - -
DEPUTY PRESIDENT: He said late 2012?---Yes, late 2010.
Dr Varghese was also asked to comment on onset informed by the letters requesting an extension of time to complete the doctorate as well as Mr Cotsell’s evidence. He said:[31]
And you've seen a letter from solicitors to Macquarie University dated 29 March 2010, talking about the issues in respect of the family law matter, and them having a severe emotional impact on our client affecting his work and study?---yes.
Now, you've made some mention of those in your report. What I want you to comment on is whether you make any further comment on them in the light of what Mr Cotsell has said about what he was aware of in respect of Mr Hunter's complaints of depression in early 2011?---Yes, well, when I read those documents initially, my impression, clinical impression, was again that the family law issues were resulting in some issues of adjustment and concern but not to an extent of major depression. And the fact that one can't do a PhD would fit with that. High level intellectual work is difficult to do if one is preoccupied with some - with personal matters. However, if you take that in conjunction with the statement of Mr Cotsell, then it would seem that again the depressive symptoms, the depression that's developing insidiously, and it may be that what happened is that an initial adjustment to the family law situation caused him difficulties with his PhD, has become something more severe such as a major depression.
Okay. How does this fit with - - -?---That's not an uncommon development.
[31]Transcript page 110, line 38 to page 111, line 11.
That Mr Hunter was troubled by family matters during 2011 is also evident from
Mr Thompson's email to Mr Bensley of 29 August 2011[32] which spoke of
Mr Thompson's concerns with Mr Hunter's mental health and attributed problems with Mr Hunter's mental health to personal matters; not issues arising in the workplace.
Mr Hunter suggested[33] that Mr Thompson's email reflected a "presumption" he had made that Mr Hunter was upset about family matters. Mr Thompson's oral evidence was to the contrary. It was that his understanding of the personal issues then confronting Mr Hunter came from conversations he had had with Mr Hunter prior to 26 August 2011.[34] Tellingly, he did not suggest that he had made any "presumption" about the cause ofMr Hunter’s state of mind.[32]Extracted in paragraph [11] above.
[33]Exhibit 1, page 115.
[34]Transcript page 86, line 43 – page 87, line 7.
Mr Thompson’s email causes me to reject the evidence of Mr Hunter that matrimonial matters had been resolved at that time and were not of concern to him. It, as well as the evidence of Mr Cotsell, establishes that they were. It seems to me not to matter that, as between the parties, there may have been a consent order of 30 March 2010[35] or that an order nisi was made in November 2009; it is evident that family matters continued to concern Mr Hunter thereafter.
[35]Exhibit 18.
Was the ailment related to employment?
The answer to this question turns on the view I take of the principal witnesses, Mr Hunter and Mr Bensley, and, to a lesser degree, Mr Thompson and Ms Galea.
So far as Mr Hunter is concerned I am unable to regard his evidence as reliable.
The account he gives of bullying and harassment of him by Mr Bensley is so at odds with the contemporaneous documents that I simply cannot accept it. The emails at the time lend no support to Mr Hunter's case. On the contrary, they demonstrate that Mr Bensley went to great lengths to ensure that Mr Hunter was fairly treated. It is inconceivable that Mr Bensley could have treated Mr Hunter in the way that Mr Hunter now alleges without any contemporaneous complaint or any record being made in the emails exchanged between the parties at the time. At the highest for Mr Hunter, his email of 5 March 2012 (which followed an unfavourable performance review by Mr Bensley) referred to his having mentioned to Mr Bensley that his communication style did not "seem to reflect a positive relationship". Even thereafter, and when articulating his case to Comcare, his complaint was expressed at a high level of generality. It was devoid of any degree of particularity or instances where he was able to set out the conduct of Mr Bensley of which he complained. His complaint to Comcare in June 2012 provides an example.
It asserts,The offending language and demeanor began soon after Neil Bensley was appointed as Director. [36]
He refers to having advised Mr Bensley "of the resulting problems" at meetings on
30 August 2011 and 6 September 2011 yet the emails around that time (or later) make no reference to Mr Bensley using offensive language or using offensive demeanour during the meetings. Instead, there is Mr Thompson's email of 30 August 2011 in which he attributes Mr Hunter’s agitated mental state to his family issues. As I have said,
Mr Thompson’s evidence confirms, contrary to Mr Hunter’s evidence, that he had been told of these matters by Mr Hunter and does not support Mr Hunter’s claim thatMr Thompson had presumed that they were related to family issues.[36] Exhibit 1, page 55.
Once the Department, in connection with its request for reconsideration, had pointed out the implausibility of Mr Hunter's claim that his mental health issue commenced once
Mr Bensley became his supervisor, Mr Hunter changed his ground somewhat. He claimed that the relationship between him and Mr Bensley "had been strained for some time prior to his appointment".[37] In his evidence before me he referred to events surrounding a conference in July 2011. That evidence was, as Comcare submitted, confusing and vague however it would appear that Mr Bensley sent an email to
Mr Hunter and Mr Thompson that Mr Hunter felt was "putting pressure" on him.[38] It is difficult to see how that could be so. The email, dated 18 May 2011,[39] reads:
Dave and John
This meeting tomorrow is pretty important. This conference is way behind. Dave, I think you need you need [sic] to make sure you have done some work on these points. As the Chair of the programme committee people will be looking to you to build on what you have done already and your ideas. Is this going to be a problem? If so we'd better discuss it before the meeting. Last week's meeting was pretty awful and nothing really went anywhere and I really want to avoid that happening again if we can.
Happy to discuss.
[37]Exhibit 1, page 116.
[38]Transcript page 13, lines 29 – 41.
[39]Exhibit 6.
There is no recorded response from Mr Hunter however Mr Thompson promptly told
Mr Bensley that he was "out of line" and that he ought not to have told Mr Thompson (or Mr Hunter for that matter) what to do or what not to do. Mr Bensley then responded to both saying:
Hi Dave
No problem and sorry you feel that way. As you have it in hand, I am happy to pull my head in and leave you to it.
I don't think there is any point in all three of us being on the Committee, particularly given we aren't doing a great job of consulting and agreeing on things prior to the Committee meetings.
If there is something specific you want my help with just ask, I'm still happy to contribute if need be, but otherwise I'll leave the AG representation on the Committee to the both of you.
It is enough to say that the email exchange demonstrates a considerable disconnect between Mr Hunter's original evidence and the words of the emails. Mr Hunter's evidence is demonstrated to be a distortion of what is actually shown to have been written by Mr Bensley. I am unable to accept, as Mr Hunter claimed, that, as a consequence of this exchange of emails, there were issues between him and Mr Bensley that remained "unresolved".[40] If nothing else, it is inconsistent with the oral evidence of Mr Thompson[41] who agreed with the proposition that, so far as he was concerned, there was no continuing issue with Mr Bensley following this exchange and that thereafter he and Mr Bensley "worked quite fine together".
[40]Transcript page 19, line 4.
[41]Transcript page 89, lines 8 – 40.
Finally, it must be said that Mr Hunter's email to Mr Thompson of 15 March 2012[42] does not reflect well on him. It suggests that he was prepared to manipulate events and, to use his own words, "play the aboriginal card", to undermine the position of Mr Bensley.
[42]Exhibit 16.
Mr Hunter relies upon the evidence of Ms Kathryn Galea who provided a written statement[43] and who gave oral evidence at the hearing. The evidence was, with respect, unsatisfactory and self-evidently not that of a disinterested party. She had her own complaints about her claimed treatment at the hands of Mr Bensley. To the extent that she gave evidence that was relevant it was unhelpful – it was long on conclusions, for example, that Mr Hunter was treated in an "inappropriate manner" by Mr Bensley, and short on actual detail of what that treatment was. Additionally Ms Galea had a tendency, when responding to questions, to traverse areas that were more concerned with her own grievances and quite unrelated to the question posed or to the issues I have to determine.
[43]Exhibit 11.
It seems to me to be of significance that she took no action at the time to complain of
Mr Bensley’s claimed poor treatment of Mr Hunter or to make a record of it.
Mr Hunter relied, as well, on the evidence of Mr Thompson. That evidence was a curious mixture. He provided to Mr Hunter a statutory declaration[44] and gave oral evidence. He too had his own issues with the Department having, in October 2012, just prior to making a statutory declaration, lodged a 512 page complaint against Mr Bensley and Ms Howlett, the branch manager. His employment with the Department was subsequently terminated for misconduct in December 2012. But the curiosity of his evidence lies in the comparison between what is contained in a statutory declaration and the evidence he gave at the hearing. In the former he dealt with the meeting of
[44]Exhibit 4.
29 August 2011 and its aftermath in this way:
9.I remember as a team teleconference, with Mr Bensley now being our acting Director, we were all discussing issues and events that were coming up. At this meeting was myself, John, Mr Bensley, Ms Annie Keys and Mrs Kathryn Galea. This made up our Queensland-based team of out-posted officers at the time. …
10.At the team meeting during the week 29th of August, 2011, Mr Bensley asked if anybody had anything more to add before he closed the meeting. I remember John saying that it was not good to say anything if you only have negative things to say. He then further added that he was feeling depressed and that his Mother had taught him if you haven't got anything positive to say, then best not saying anything at all.
11.This triggered something in me that realised John was showing signs of depression and stress in his life. I know this because I suffer from depression and have worked hard on my triggers to overcome the initial symptoms before they become too much to bare [sic]. After the meeting, I called John and asked him if he was alright. He said that he was feeling down and was getting angry at being treated like a child all the time by Mr Bensley. I gave John the number for the Men's Helpline and told him to speak to them and that they would at least listen and give him some facts about what he can do.
12.We then spoke about work issues and how Mr Bensley was treating him. John said that he was continually being ridiculed by Mr Bensley by continuous allegations of not being in the office, not doing his job and being spoken to aggressively in phone conversations. I told John that this type of thing was beginning to happen to me as well. We spoke more about how he was being treated and John said that he was getting stressed out with the whole thing and that he should just resign. I said that was what they would want us to do and we should both hang in there and fight this.
13.I recall I then spoke to Mr Bensley about John not doing so well and that I was worried about his well-being because he was suffering from depression. I said that we were in the process of completing a work plan and asked if I could travel to Cairns to work with John to complete our work plan and I also wanted to speak to him about his well-being. Mr Bensley asked me what I thought John's problems were and I said mostly to do with work. I said that he was getting down and that I was worried about John's health. Mr Bensley allowed me to go to Cairns to complete our work plan and to spend time with John.
That account attributes Mr Hunter's apparent depression to "work issues" and to his treatment at the hands of Mr Bensley, yet in his email to Mr Bensley after that meeting[45] he attributed the depression to "personal issues". He reiterated in the hearing that, on
26 August 2011, his understanding of the problems facing Mr Hunter was that they were problems in his personal life; he made no reference to regarding them as attributable to work. The evidence at the hearing was, in that respect, quite inconsistent with his statutory declaration. And if, as Mr Thompson now says, he was told by Mr Hunter at the time of his difficulties with Mr Bensley, it may be wondered why the email makes no reference to those complaints having been made to Mr Thompson.
[45]See paragraph [11] above.
His statutory declaration[46] referred to Mr Bensley, on occasions, saying of Mr Hunter that he was "AWOL"; that is, absent without leave. In the course of cross-examination he was to take to that passage and volunteered this evidence:
… Yes, and upon reading that it probably wasn't AWOL. On other occasions he would even use walkabout.
Yes. Okay?---"John's on walkabout".
I was left with the distinct impression that the recollection was not genuine but was asserted for the purpose of aligning Mr Thompson's evidence with that of Mr Hunter who har earlier given evidence of having been told that he had been described as having been on "walkabout".
[46]At paragraph [5].
It does not assist Mr Thompson's credit that he was prepared to lie to his trade union about the state of his health in order to gain support from the union for his campaign against Mr Bensley.[47]
[47]See exhibit 7.
It is sufficient to say that I am unable to regard Mr Hunter or his witnesses as reliable historians. I prefer to rely upon the account of events that emerges clearly enough from the contemporaneous documents. They demonstrate that there was no apparent difficulty between Mr Hunter and Mr Bensley until the performance review in March 2012.
The contemporaneous correspondence demonstrates that Mr Bensley, at all times, treated Mr Hunter with respect and courtesy. He demonstrated an obvious concern with
Mr Hunter's health and was attentive to his needs. Given the content of the emails sent at the time I accept his evidence regarding his treatment of Mr Hunter. I regard his evidence as being reliable.
I should also say that I am unable to accept that Mr Hunter could have genuinely perceived, as he seemed to suggest, that Mr Bensley was bullying him even if it were found that he was in fact not being bullied. Mr Hunter’s submissions demonstrate an appreciation of what was decided by von Doussa J in Wiegand v Comcare.[48] The evidence does not support its application.
[48][2002] FCA 1464; (2002) 72 ALD 795.
The result is that I am not satisfied that Mr Hunter's employment contributed to, to a significant degree, any aggravation of Mr Hunter's condition. That conclusion warrants the decision under review being affirmed.
Reasonable administrative action?
I would, in any event, come to the same conclusion had I been of the view that
Mr Hunter's ailment had been aggravated by Mr Bensley’s dealings with him. I would reach that conclusion because, on the view I take of the matter, Mr Bensley’s actions amounted to reasonable administrative action, undertaken reasonably, in respect ofMr Hunter’s employment. That being so, the effect of the decision of the Full Court in Hart v Comcare[49] is that the aggravation does not satisfy the definition of "injury". In the circumstances, I need not further elaborate on that conclusion.[49][2005] FCAFC 16; (2005) 145 FCR 29.
The result is that the decision under review will be affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ..........................[Sgd]............................................
Associate
Dated 4 November 2014
Dates of hearing 28 & 29 April 2014 and 21 August 2014 Date final submissions received 4 August 2014 Applicant In person Counsel for the Respondent Mr A Harding Solicitors for the Respondent Sparke Helmore
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