Kaloudis and Comcare - [2009] AATA 892

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 892

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/1588

GENERAL ADMINISTRATIVE DIVISION )
ReMaria KALOUDIS

Applicant

And Comcare

Respondent

DECISION

TribunalMs N Isenberg, Senior Member
Dr M E C Thorpe, Member

Date19 November 2009
PlaceSydney
DecisionThe decision under review is set aside.

..................[sgd]............................
Ms N Isenberg
Senior Member

CATCHWORDS

WORKER’S COMPENSATION – claim for Post Traumatic Stress Disorder – issue of PTSD not pursued - whether injury was result of failure to obtain promotion - decision under review set aside

…

RELEVANT ACT/S

Safety, Rehabilitation and Compensation Act 1988: ss 4, 5A, 5B,14

…

CITATIONS

Comcare v Mooi (1996) 69 FCR 439 at 443; 23 AAR 160

Hart v Comcare (2005) 87 ALD 341

…

REASONS FOR DECISION

19 November 2009

Ms N Isenberg, Senior Member

Dr M E C Thorpe, Member

Introduction

Maria Kaloudis, now aged 41 , is an employee of the Australian Customs Service (‘Customs‘) and has worked there since September 2001. She seeks review of a reviewable decision dated 5 March 2008, which affirmed an earlier determination dated 19 December 2007.
Liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the Act) for Post Traumatic Stress Disorder (PTSD), was denied on the basis Ms Kaloudis’ condition resulted from a failure to obtain a benefit and was therefore excluded as an injury pursuant to section 5A(2) of the Act.

background

Ms Kaloudis works at Sydney Kingsford Smith Airport as a Customs Officer Level 1. Mr Hoy was her team leader and immediate superior from December 2006 until 9 March 2007 when he went on long service leave. During that time she observed that Mr Hoy often appeared to have been affected by alcohol while he was on duty. Ms Kaloudis alleges she was subjected to frequent, aggressive and verbal abuse from him. She was shocked by his behaviour and subsequently became frightened of Mr Hoy.
On about 7 May 2007 Ms Kaloudis was informed that Mr Hoy was shortly to return to the workplace after a period of extended leave. She was "scared" and "worried and stressed" about his return and concerned that he would resume his abusive treatment of her.
On 22 June 2007 Ms Kaloudis was informed that Mr Hoy was returning to work and would be her team leader and supervisor.
On 29 May 2007, Ms Kaloudis lodged an official complaint against Mr Hoy and, later, an official investigation was conducted into Mr Hoy’s conduct generally.
On 24 June 2007, when there had been no response to her complaint, Ms Kaloudis completed an incident report. In this report she alleged that over the past six months she had been under a lot of stress and had been subjected to verbal abuse, harassment and discrimination by Mr Hoy. Ms Kaloudis lodged a further two incident reports in relation to her experience of stress, anxiety and depression in the workforce on 11 August 2007 and 15 August 2007.
On 26 June 2007 Ms Kaloudis consulted with her general practitioner, Dr George, and was given a medical certificate for three weeks off. In all she had 11 days leave.
Meanwhile, on 17 March 2007, Ms Kaloudis had emailed her team’s supervisor, Mr Egan, and requested that she be trained in higher duties and given the opportunity to act in a higher position in order to further her career as well as enjoy the financial rewards. On 2 April 2007 Ms Kaloudis followed up this request. Ms Kaloudis once again emailed Mr Egan, on 1 May 2007, and requested confirmation of when it was likely she would be given the opportunity to perform higher duties. She alleged there appeared to be discrimination and favouritism when it came to the allocation of higher duties.
On 8 May 2007, Mr Egan advised Ms Kaloudis he was unable to confirm when he was likely to give her the opportunity to perform higher duties. He noted this opportunity was dependant on her performance and development to the point where he was confident that she was ready to do so. He stated he did not believe she was ready to lead her team at this time.
There was further email correspondence between Ms Kaloudis and Mr Egan in late May 2007 regarding this issue. Mr Egan stated he did not believe Ms Kaloudis was ready to perform Level 2 higher duties and believed she had not demonstrated that she had the required level of drive, enthusiasm and initiative that he expected of staff who perform the Level 2 duties. Ms Kaloudis disagreed with this perception and stated she believed she was ready to perform higher duties.
On 4 July 2007, Ms Kaloudis completed a claim for workers' compensation. She indicated, at question nine, that it was her "mental wellbeing" that had been most affected by her injury. She indicated that the following chain of events had led to her injury:
* the possible return of a verbally abusive level 2 team leader and the text message that refers to us as new Australians;
* lack of career development;
* no opportunity at higher duties;
* favouritism and discrimination, the text message that refers to me as a new Australian; and
* a series of events over a 6 month period
In support of her claim Ms Kaloudis submitted a further letter in which she stated that from December 2006 her team leader, Mr Hoy, was verbally abusive, unsupportive and discriminated against her, referring to her as a new Australian.

Issues For Determination

The issues we have to decide are:
1.Whether Ms Kaloudis suffered an injury as defined in section 5A of the Act.
2.Whether Ms Kaloudis’s condition falls within the exclusionary provisions found in the definition of injury, namely whether the injury was as a result of anything reasonably done in connection with her failure to obtain a promotion, or anything done as a result of a reasonable appraisal of her performance.

legislative framework

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act”), in particular sections 5A, 5B and 14.
Section 5A of the Act states:

5ADefinition of injury
(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.
(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.

Section 5B of the Act states:

5BDefinition of disease
(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.
(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.
(3)In this Act:
significant degree means a degree that is substantially more than material.

Section 14 of the Act states:

14 Compensation for injuries

(1)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.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

Ms Kaloudis’ Evidence

Ms Kaloudis gave evidence that during her seven years as a Customs Officer she had never received an adverse report about her performance. In 2005 she undertook a secondment at Customs Information and Support for which she was paid higher duties allowance.
On about 5 December 2006 when she returned to her normal duties, Ms Kaloudis was placed in a team in which Mr Hoy was the team leader.
About a week later, Ms Kaloudis was completing a baggage examination and had some problems with a passenger. When she asked Mr Hoy for help, she noticed his speech was slurred and that he appeared disheveled. Ms Kaloudis said she felt embarrassed for Customs in front of the passenger.
The following day she again required some assistance from Mr Hoy, during the course of which he called her ‘a dumb ethnic’. He continued to call her that every few days and also called her ‘a dumb broad’. Thereafter, Ms Kaloudis tried to keep away from him.
Ms Kaloudis agreed in cross-examination that she was aware that she could have lodged a grievance against Mr Hoy, but said she was afraid to bring it to the attention of ‘the hierarchy’, especially as she had only just started to work with Mr Hoy.
On 11 February 2007, when she again asked Mr Hoy for help, he ‘went ballistic’, saying: "You are fucking dumb and incompetent." She said she regarded this as the incident that ‘broke’ her.
Ms Kaloudis said that these were not isolated incidents: throughout December 2006 until Mr Hoy went on leave on 11 March 2007 Ms Kaloudis was, she said, subject to his verbal abuse. He swore at her and at other team members and called her "fucking dumb and incompetent". He also made racist remarks such as: "you are a stupid ethnic" and ‘you are a dumb ethnic" and "you new Australians do not know anything". He also frequently called her ‘a dumb broad."
Ms Kaloudis said that no one had ever spoken to her like that before and she was shocked, devastated, upset, crying, sad, angry, emotional and ‘all over the place’. What she found particularly upseting was Mr Hoy’s swearing and name-calling. However, she thought she was able to cope.
Ms Kaloudis thought that management was aware of Mr Hoy’s behaviour but was unwilling to do anything about it. She thought she had spoken to Mr Egan, her supervisor, about Mr Hoy but could not recall when that was.
When Mr Hoy went on long service leave, Ms Kaloudis felt a sense of relief that he was gone from the workplace. It was if a great weight had been lifted from her and she looked forward to going to work.
Then, on about 7 May 2007 Ms Kaloudis learned that Mr Hoy was due to return. She was scared and concerned about his return and did not believe she could continue to go to work if she had to be anywhere near him. She had sleepless nights and suffered severe headaches.
On 29 May 2007 she and four other officers lodged a complaint about the way they had been treated by Mr Hoy and expressed their concerns that they would be subject to his unacceptable behaviour if he returned to the workplace.
On 7 June 2007 it was foreshadowed that upon Mr Hoy's return he would be Ms Kaloudis’s team leader. She felt she could not cope with working with him.
On 22 June 2007 it was confirmed that Mr Hoy was coming back and that Ms Kaloudis would be in his team. She ‘just lost it’. She said she told the acting supervisor:
"…. I can't believe this. I have lodged a complaint about this guy and his abuse and refuse to work with him and now he is to come back as my supervisor and I will have to have contact with him on a daily basis."
Ms Kaloudis was told she would “just have to wait and see". She felt she could not work like that; she felt stressed and anxious and that she could not cope.
On 27 June 2007 she was so distressed with the prospect of Mr Hoy's return to work as her team leader that she consulted her general practitioner, Dr John George. He gave her three weeks off work - the first two weeks she took as sick leave and the further five days were taken from her holidays or as part of her rostered days off. She said she had not previously taken extended periods of sick leave.
While on leave , Ms Kaloudis submitted her workers’ compensation claim. She said that she thought it was important to write down everything that was happening to her in the workplace which included the imminent return of Mr Hoy as well as the lack of career development and opportunities for higher duties.
By 27 July 2007 when she had not heard anything from management concerning her complaint against Mr Hoy she contacted the Acting Manager of Performance and Development for an update. There was no immediate reply to this email and this exacerbated her stress.
On 2 August 2007 Ms Kaloudis was informed that a code of conduct inquiry was being conducted into Mr Hoy's actions and she would be contacted about it. This produced more stress and anxiety. The investigator questioned her on 6 August 2007.
Dr George, who she continued to see regularly, had recommended she see Dr Keith Mayne, consultant psychologist, but she was unable to afford to do so. Instead, on 18 September 2007 Ms Kaloudis consulted Ms Natalie Kleindyk, a psychologist for her stress concerning the possible return of Mr Hoy as her supervisor. Ms Kaloudis mentioned other aspects of the workplace, including her feelings of stagnation, because she said Ms Kleindyk had asked about the workplace. Ms Kaloudis observed that Ms Kleindyk had also recorded information about some personal matters.
Ms Kaloudis’s anxiety continued until she learned, in March 2008, that Mr Hoy had resigned.
Ms Kaloudis agreed in cross-examination that she had applied for promotion in March 2007 and, when she was unsuccessful, she had discussed her aptitude with Mr Egan. She indicated that they disagreed as to her competence.
While it was true that her partner had time off work due to illness, Ms Kaloudis denied that there were financial implications, and could not explain why she had mentioned that in her correspondence with Mr Egan. She said that the issues about wanting to advance her career were minor. She said that she did not think Mr Egan had been unfair. She also agreed that she felt some frustration at not getting what she thought was appropriate training that might have assisted her advancement: she just wanted to be able to compete.
To that end Ms Kaloudis said she made a concerted effort between May and August 2007 to advance her career by doing the courses Mr Egan had recommended.
Ms Kaloudis was adamant that the only thing affecting her in June 2007 was the prospect of Mr Hoy’s return, although she had detailed other issues in her claim form and the accompanying attachment. This included references relating to her advancement, or lack thereof.

Evidence of Mr Frank Egan

Mr Egan, Ms Kaloudis’ and Mr Hoy’s supervisor, provided a statement and gave evidence.
Mr Egan said that the first he knew of Ms Kaloudis’ complaints – formal or informal – against Mr Hoy were when he became aware of her workers’ compensation claim. He agreed in cross-examination that there had been a number of ‘conversations’ with others about Mr Hoy.
Mr Egan was also aware that people had said as part of the investigation into Mr Hoy’s conduct that they had complained, however he did not know who the people were.
Mr Egan said he had worked with Ms Kaloudis briefly before her secondment, and again on her return. He had no opinion about her or her work from the earlier period.
Mr Egan said that Ms Kaloudis sought his advice soon after her return, as she was upset about not getting a permanent position for which she had applied. He advised here to “just put [her] head down and do [her] work”. Ms Kaloudis had been given post interview counselling and was told she needed supervisory experience. Mr Egan did not think she was capable of supervising. He wanted to see more of her work at her then level before giving her a supervisory role. He had some reservations as to her technical competence, and he is still unconvinced.
About four or five times between December 2006 and April 2007 Mr Egan and Ms Kaloudis discussed her wanting to act in higher duties. Others staff made similar requests. On a few occasions Mr Egan had spoken with Ms Kaloudis about the same sorts of issues and concerns that he raised in his emails of 8 and 29 May 2007
By early May 2007, the situation had developed to such a point that when Mr Egan and Ms Kaloudis met, each would have a witness present. They would subsequently confirm any discussions they had by email.
In Mr Egan’s view, Ms Kaloudis does not work very hard and the quality of her work is below par. He felt she had developed no particular skill set in Customs. Of the 85 officers at her level he would rate her in the bottom 10% or even lower, for motivation and hard work. He thought she shows no initiative or motivation.
Mr Egan said Ms Kaloudis’ supervisor had spoken her to about the quality of her reports and they were not ‘up to scratch’. He agreed in cross-examination that while there was no entry in her performance appraisal that her reports were poor, he referred to an entry that her reports ‘can improve’. Ms Kaloudis had been told about this and he thought she did not take directions, as she should. He agreed there was nothing to the effect that her performance was below par, although that was his view. The focus in a performance appraisal, he said, is not to be negative.
After the email exchange on 29 May 2007, there were no further discussions about higher duties until Ms Kaloudis informed him by email on 29 August 2007 that she had completed the courses he had recommended. The issue of Ms Kaloudis’ higher duties had subsided during that time.

Medical evidence

Dr John George

Clinical Notes and a report dated 29 September 2009 were provided by Dr John George, Ms Kaloudis’ treating doctor. His notes record that Ms Kaloudis first complaied of being stressed at work due to the abusive behaviour of her workplace supervisor on 26 June 2007. Dr George’s notes indicated:
“ Very shaken, distressed from person with racist leader, unable to see him in face.”

She again exhibited symptoms on 3 July 2007, with Dr George’s notes indicating:

“Still suffering from PTSD, broke up in tears on Saturday, unable to attend work.”

Then on 16 July 2007 Ms Kaloudis made similar complaints, with Dr George’s notes indicating:

“Still is very stressed about work, [p]oor sleep, [p]anic attacks. Unable to attend work, [p]anic as she drive to work.”

Dr George gave Ms Kaloudis medical certificates for three weeks leave due to her medical condition. The notes and report do not refer to complaints by Ms Kaloudis about any other aspect of her employment.

Dr George considered Ms Kaloudis sufficiently distressed that she required further help from a psychiatrist. For financial reasons she was unable to consult with a psychiatrst. Instead, she attended a psychologist.

Ms Natalie Kleindyk

A report dated 9 October 2007 was provided by Ms Natalie Kleindyk, psychologist. Her clinical notes were made available. Ms Kaloudis was referred to Ms Kleindyk by Dr George and she consulted with her on 18 September 2007 and 9 October 2007. The report of 9 October 2007 states that Ms Kaloudis presented with stress-related symptoms of anxiety following three months of abuse by her manager and that it was unclear when he would return to work.
Ms Kleindyk’s clinical notes, in relation to the first consultation, refer to Ms Kaloudis having issues with her team leader who was coming to work drunk, was abusive to Ms Kaloudis and her colleagues for about three months ,it was unclear when he would return to work, and that there was an internal investigation which had been ongoing since February 2007. Ms Kleindyk also recorded that Ms Kaloudis felt stagnated and wanted to progress, that she had had good reports and had been unsuccessful in a promotion attempt and was feeling frustrated. The notes continue to elaborate upon issues related to Mr Hoy, a further description of her symptoms and details about her home life.
Ms Kleindyk’s notes from the second consultation refer to issues relating to Ms Kaloudis’ progress and ‘boss’ issues. She also noted recommended remedial strategies.

Dr Keith Mayne

Dr Keith Mayne, consultant psychiatrist, provided reports dated 4 August 2008 and 17 June 2009. He also gave evidence.
In his first report, Dr Mayne made a diagnosis of ‘chronic adjustment disorder with anxious and depressed mood’. He regarded this as a direct result of the abuse by Mr Hoy. He observed that Ms Kaloudis’ symptoms settled to some degree when Mr Hoy went on leave, only to return with increased severity when she learned she would be in his team again on his return.
Dr Mayne was of the view that the refusal of promotion played no part in the development of Ms. Kaloudis^’ symptomatology, as had been suggested by Dr Synnott in his report of 16 October 2008.
In his later report dated 17 June 2009, Dr Mayne wrote:
“I had asked for the opportunity to be acting team leader in March 2007. I was told very reasonably that I was not ready and that I would need to do two specialised courses. I accepted this and again asked for promotion in September 2007. I have not felt sufficiently confident to raise the promotion issues again.”
In his evidence, Dr Mayne said this was a direct quote from the history he had obtained from Ms Kaloudis when she saw him in July 2008.
Dr Mayne said he thought it was relevant that Ms Kaloudis’ symptoms went into remission when Mr Hoy went on leave and that there was a severe relapse when his return was foreshadowed. He also thought it relevant that four other officers had lodged a complaint which was unresolved. Dr Mayne said that Ms Kaloudis’ situation was that not only were her complaints not being listened to, but she was going to have to go back into Mr Hoy’s team.
Dr Mayne regarded the promotion issue as ‘extremely minor’ compared to Ms Kaloudis’ main stressor, that is, issues about Mr Hoy.
As to Ms Kaloudis’ reference to ‘all the events’ referred to in her workers compensation claim having given rise to stress, he said she may not have been able to discriminate between the events affecting her. As to her description of both “boss” and progression issues to Ms Kleindyk, he said that, given the level of vilification, it was unsurprising that she was unable to disconnect the two issues.

Dr Inglis Howe Synnott

Dr Inglis Howe Synnott, consultant psychiatrist, provided a report dated 16 October 2007, and a supplementary report dated 26 February 2009. Dr Synnott also gave evidence.
Dr Synnott stated in his first report that, in his view, Ms Kaloudis’ history suggested that she had probably suffered psychological distress at the time she went off work in June 2007. He noted that although she had experienced psychological distress on an intermittent basis from February 2007 to June 2007, she did not have a specific psychiatric condition during that time. He noted that her complaint was confined to psychological problems from events concerning the behaviour of a supervisor towards her in the workplace and that her condition worsened. Ms Kaloudis consulted with Dr. George shortly after she was informed of the possible return of the abusive team leader as her direct supervisor.
Dr. Synnott concluded that:
“…she probably had psychological distress at the time she went off work in June 2007 - this was in anticipation of what it might be like to go back to the team where R.H. was team leader (despite the fact he had not returned to work she was apprehensive about what it might be like were he to return to work)"
In my opinion although Ms. Kaloudis experienced psychological distress on an intermittent basis from February to June 2007 - it became worse in June 2007 and she then went off work ..’

Dr Synnott noted that Ms Kaloudis gave a history that after she was transferred to her new team in March 2007, there were other issues at work regarding her career development. She was told by Mr Egan that she was not ready to perform higher duties. When she asked what had to be done to become ready, she was not given any specific direction, and nothing concrete to help her work out what she could do to help herself.
Ms Kaloudis advised Dr Synnott that two issues led to her psychological distress in June and July 2007,namely, the thought Mr Hoy would return to work and the discouraging comments from Mr Egan regarding higher duties.
Ms Kaloudis told Dr Synnott that her supervisor, Mr Egan, still posed an issue for her in the workplace. Dr Synnott noted:
"Ms Kaloudis felt that he was frustrating her desire to advance herself in the workplace and to get to the position of being an acting team leader. The chances for promotion were being denied because of his negative attitude towards her".

consideration

The Applicant did not press a diagnosis of PTSD, only submitting to the Tribunal that Ms Kaloudis had experienced psychological distress.
Drummond J made it clear in Comcare v Mooi (1996) 69 FCR 439 at 443; 23 AAR 160 at 164 (Mooi) that the use of the word ailment signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones”. His Honour said a claim should not be rejected simply because the employee's condition cannot be identified as a recognised medical condition. However, his Honour added (at FCR 444; AAR 164-5) that it is:
...essential for...a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour
In the context of this matter, therefore, it is necessary only for the Applicant to demonstrate that her condition is outside the boundaries of normal human functioning and behaviour. We accept Ms Kaloudis’ evidence that she experienced psychological distress. We find that her constellation of symptoms, however described, are outside the boundaries of normal human functioning. To that extent, she suffers an ailment, as defined in the Act.
We accept that the evidence was that Ms Kaloudis had a fairly unremarkable career at Customs from 2001 – she had had one period of higher duties, but had otherwise worked at the base level, performing satisfactorily and receiving regular increments and reasonably positive performance appraisals.
It was clear to us from the evidence of Ms Kaloudis though that her work situation changed from December 2006 Over a three month period, Mr Hoy, her supervisor, acted disgracefully towards her – swearing at her and engaging in offensive racist conduct.
An independent consultant was engaged by Customs to investigate the allegations against Mr Hoy. The consultants report became Exhibit A5 in these proceedings. The consultant made the following conclusions:
"Mr Hoy spoke inappropriately to Ms Kaloudis and caused her reasonable offence."
The independent consultant also found that staff concerns had been known to and brought to Mr Egan’s attention over a period of 12 months or more but that nothing was done until he had a discussion with Mr Hoy on 7 March 2007 about his drinking.
Furthermore, Ms Kaloudis said that she had complained about Mr Hoy, but Mr Egan denied that that was the case. It would appear unlikely that Mr Egan, as Mr Hoy’s supervisor, would have been unaware of his conduct, especially his drunkenness.
Ms Kaloudis’ relief when Mr Hoy went on long service leave in March 2007 was, in the circumstances, unsurprising. After Mr Hoy left, Ms Kaloudis discussed promotion prospects with Mr Egan. We accept that, like most diligent employees, irrespective of ability, Ms Kaloudis was interested in promotion, and the accompanying higher duties allowance. Dr Mayne in his report of 17 June 2009 considered Ms Kaloudis’ emails to Mr Egan to reflect an attitude of assertiveness, ambition, and belief in her own capability.
We do not accept that Ms Kaloudis’ email correspondence with Mr Egan reflects bitter complaint and disappointment about her career development, but instead is an assertion by Ms Kaloudis of her interest in promotion. We accept that by 29 May 2007 following an email exchange with Mr Egan in which he outlined what is required of her before she can achieve promotion, that she accepted his advice. Therefore by 29 May 2007, the issue of her obtaining a promotion is dispelled for the time being because she accepted his advice and commenced the relevant training. Importantly, promotion does not appear to have been discussed with Mr Egan again until 29 August 2007 when she has completed the courses he advised were an impediment to her promotion prospects.
While throughout 2008 there is further discussion about, effectively, being passed over, this is not the period in question.
We also accept that Ms Kaloudis was concerned about Mr Hoy’s imminent return. This is confirmed to some extent, in our view, by the serious formal complaint of harassment and discrimination she and others made on 29 May 2007. Despite an immediate acknowledgment that she would be kept informed throughout the coming week Ms Kaloudis heard nothing more about her complaint until March 2008 - almost a year later.
We accept that Ms Kaloudis’ concern about Mr Hoy’s return was compounded when she learned at the beginning of June 2007 that he was soon to return to work and that she was to be in his team again. We accept her evidence that, as a result, she feared coming to work.
Ms Kaloudis’ concerns were corroborated by the report of Dr George dated 29 September 2009, which confirmed that she was stressed about at work, that her team leader suffered from alcohol related problems and that he had verbally abused her. Significantly, there was no mention at all of concerns about promotion.
Dr Synnott did not have the benefit of Dr George’s report or notes of events at the relevant time, whereas these were available to Dr Mayne. For that reason in particular we prefer the evidence of Dr Mayne that Ms Kaloudis’ condition was a direct consequence of a period of several months of abuse from Mr Hoy. Unlike Dr Synnott, Dr Mayne provided a more detailed analysis of why he had come to his view, indicating in his report of 17 June 2009:
“Whilst recognising that Ms Kaloudis was disappointed by her inability to obtain promotion at this time, this was not the cause of her psychiatric condition. It is my opinion that the abusive behaviour of the former supervisor, Rob Hoy was the factor in causation, leading to Ms Kaloudis consulting with her general practitioner, leading to the need for three weeks sick leave from work.”
As to the broader complaints detailed in her workers compensation claim form and the accompanying note, Ms Kaloudis wrote that the situation had “taken mental and physical effect on [her]”. It may be, as was submitted on her behalf, that at the time of completing the documents she was suffering from a psychological injury.
We accept that any broader complaints detailed to Ms Kleindyk were in response to questioning about her life in general and not restricted to the work complaints for which she was seeking treatment.
Overall, we accept that Ms Kaloudis’ concerns also included aspects of her career development, and that, to her, these were legitimate concerns. Consideration of the notes of Dr George’s and Ms Kaloudis’ evidence lead us to agree with the view of Dr Mayne that the issue about promotional opportunities was a very minor factor in her psychological distress.
A failure to obtain a promotion was discussed in Hart v Comcare (2005) 87 ALD 341. It was found that such a failure need not be the sole cause of the employee’s injury in order for the exclusionary provisions of the Act to apply, provided the failure materially contributed to the condition. The same principle applies since the 2007 amendments, although consideration must now be given as to whether the injury or disease was contributed to to a significate degree.
In this instance, as was indicated by Ms Kaloudis’ evidence, the failure to obtain the promotion was a minor factor in comparison to the treatment she was subjected to by Mr Hoy.
Further to this, the exclusionary provisions in section 5A(2) of the Act also apply in respect of “reasonable administrative action taken in a reasonable manner.” In relation to this issue, we do not consider that there was any other aspect of Ms Kaloudis’ treatment that might be considered to be such action that would have significantly contributed to her injury.

decision

The decision under review is set aside
The Respondent is to pay the Applicant’s costs.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr M Thorpe, Member

Signed: ...................[sgd]........................................................
M. Corcoran, Associate

Dates of Hearing:  26 and 27 October 2009
Date of Decision:  19 November 2009
Applicant’s representative:                LesKEADYLEGAL
Applicant’s counsel:  Mr M Cleary
Respondent’s representative:           Australian Government Solicitor
Respondent’s counsel:  Mr M Gollan