Keating and Comcare (Compensation)

Keating and Comcare (Compensation) [2023] AATA 2274 (28 July 2023)
Division:GENERAL DIVISION
File Number(s): 2020/6740
Re:Dennis Keating
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth and Member Dr L Stephan
Date:28 July 2023
Place:Adelaide

The decision under review is affirmed.
..........................[Sgnd].........................................
Senior Member B J Illingworth and Member Dr L Stephan
Catchwords
WORKERS COMPENSATION – Injury – Ailment – Disease – Liability to pay compensation – Administrative Action in a Reasonable Manner – Stress – Major Depressive Disorder – Decision Affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Public Service Act 1999
Public Service Regulations 1999
Cases
Bropho v Human Rights and Equal Opportunities Commission (2004)135 FCR 105
Comcare v Martin [2016] HCA 43
Comcare v Martinez (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Georges v Telstra Corporation Limited [2009] AATA 731
Keen v Workers Compensation Corporation (1998) 71 SASR 42
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lim v Comcare [2016] FCA 709
Lynch and v Comcare [(2010)) AATA 38114 ALD 394
Moore v Comcare [2011] AATA 615
National Australia Bank Limited v KRDV [2012] FCA 543
Quick v Comcare [2010] AATA 209
REASONS FOR DECISION
Senior Member B J Illingworth and Member Dr L Stephan
28 July 2023
INTRODUCTION

Mr Dennis Keating (“the Applicant”) has applied to the Administrative Appeals Tribunal (“the Tribunal”), to review the decision by Comcare (“the Respondent”), dated 16 October 2020, which denied liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for the Applicant’s Major Depressive Disorder (“MDD”).[1]
[1] Exhibit A, T119, p 538–542.
The Applicant was represented by Counsel, Josephine Battiste, of Mitchell Chambers (“Applicant’s Counsel”) on the instructions of Chloe Callus of Slater & Gordon Lawyers and the Respondent was represented by Counsel, Mr Paul d’Assumpcao, of Howard Zelling Chambers (“Respondent’s Counsel”) on the instruction of Ms Amanda Danti of Moray & Agnew. The Tribunal received into evidence the documents as listed in the exhibit list, held on the Tribunal file.
ISSUES
The issues before the Tribunal are correctly identified in the Applicant’s Statement of Facts, Issues and Contentions (“SoFICs”), namely:
(a)Was the aggravation of the ailment (Applicant’s MDD) contributed to, to a significant degree, by the Applicant’s employment with the Department of Defence (“the Department”)?
(b)Is the Applicant’s ailment (MDD) excluded from the definition of “disease” under the SRC Act because the aggravation of the Applicant’s existing MDD was as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment? In other words, but for that reasonable administrative action taken in a reasonable manner, would the Applicant’s employment with the Department still have significantly contributed to the aggravation of the Applicant’s MDD?[2]
[2] Applicant’s SoFICs, p 1 [3]; Comcare v Martin [2016] HCA 43 [44]–[47]; Lim v Comcare [2017] FCAFC 64 [22][37][41]–[44].
There is no dispute between the parties that the Applicant’s MDD was contributed to, to a significant degree, by the Applicant’s employment with the Department. It was “employment-related factors” alone that contributed to the aggravation of the Applicant’s ailment (MDD).[3]
[3] Respondent’s SoFICs, p 6 [8].
LEGISLATION
Section 14(1) of the SRC Act relevantly provides:
“…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.”
The meaning of ‘injury’ is defined in s 5A(1) of the SRC Act, which provides:
“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 employees 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.”
Pursuant to s 5A(2) of the SRC Act, reasonable administrative action is taken to include:
(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.”
The meaning of ‘disease’ is defined in s 5B(1) of the SRC Act, which provides:
“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…”
The meaning of ailment is defined in s 4(1) of the SRC Act, which provides:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
BACKGROUND
Both the Applicant and Respondent have provided a history of the matter in their respective SoFICs.[4] The Tribunal will summarise the chronology of relevant events, as referred to by the parties of this application.
[4] Applicant’s SoFICs, p 2–8; Respondent’s SoFICs, p 1–6.
The Applicant is 70 years old, born on 28 March 1953.[5] The Applicant was employed by the Department from approximately 22 October 2007.[6]
[5] Exhibit G, p 1 [2].
[6] Exhibit G, p 1 [3]; Exhibit A, T103 p 432, 434; Note: Respondent’s SoFICs p 2 [4.2] states 23 October 2007.
From in or about mid to late 2015, the Applicant began to have symptoms of severe depression and anxiety, secondary to work-related stress. In about May 2016, the Applicant began having suicidal ideations and consulted his General Practitioner (“GP”). From, on or about 8 April 2016, following a meeting with his supervisors; Mr I and Col H, the Applicant’s condition escalated.[7]
[7] Exhibit G, p 2 [4]; Exhibit A, T37 p 158 [3], T19–20.
On 15 June 2016, the Applicant’s GP diagnosed him with MDD, with associated anxiety secondary to work-related stress, which was contributed to, by a conflict with Mr I and Col H. The Applicant was prescribed anti-depressants and referred to a psychiatrist.[8] On 21 July 2016, the Applicant’s psychiatrist, Dr Arya, confirmed the GP’s diagnosis.
[8] Exhibit A, T31 p 124 [7]; T37 p 158 [3]; Exhibit G, p 1 [4].
On 11 August 2016, the Applicant lodged a Workers Compensation Claim for MDD.[9] On 23 August 2016, the Applicant’s psychiatrist, Dr Arya, provided a report, again, confirming the GP diagnosis of MDD with associated anxiety, secondary to work-related stress, and recommended the Applicant not return the same workplace environment as the risk of relapse was high.[10]
[9] Exhibit A, T29.
[10] Exhibit A, T35 p 144–5.
On 24 August 2016, the Department obtained a report from consultant psychiatrist, Dr Hundertmark,[11] and the Applicant’s GP,[12] who both diagnosed the Applicant with MDD (with anxiety symptoms) and opined the Applicant could not return to the same workplace as it would be significantly detrimental to him, but he could return to work if there were alternative arrangements including a different supervising/management structure.
[11] Exhibit A, T36.
[12] Exhibit A, T37.
From October 2016, following the medical advice of Dr Arya, Dr Hundertmark and the Applicant’s GP, the Applicant transitioned into his role with the Estate Planning and Development team, with a permanent transfer taking place on 3 February 2017.[13] The Applicant worked in various roles with the Department, but at the time the aggravation of his “injury” (MDD) occurred he was in the lead role of Estate Management and Planning, located in Darwin.[14]
[13] Exhibit A, T50 p 2; Note: Respondent’s SoFICs p 2 [4.10] states 20 February 2017.
[14] Exhibit G, p 1 [3].
On 15 December 2016, the Respondent made a determination the Applicant suffered from an “injury” under the SRC Act.[15] Initially, this claim was denied,[16] but the decision was revoked and upon reconsideration the Respondent accepted the Applicant suffered from MDD, with anxiety and depressed mood, dated back to 8 April 2016 (the date the Applicant had a meeting (and conflict) with Mr I and Col H).[17]
[15] Exhibit A, T46.
[16] Exhibit A, T43.
[17] Exhibit A, T19, 44, 46.
In March 2017, the Applicant ceased seeing his treating psychiatrist, Dr Arya.[18]
[18] Exhibit G, p 2 [8].
In May 2018, there were proposed new working arrangements, in which the Applicant feared he would be required to work with Mr I and Col H.[19] He received verbal and written undertakings by Ms MacDonald (Senior Director, Third Line Manger) and Mr Crossman (Second Line Manger) this would not happen. On 23 May 2018, Ms MacDonald, by email, said:
“You expressed your concern that working in a role close to army may require you to work with an individual,[20] who had previously been identified by you, as a contributing factor to a past mental health episode. It was noted by [Mr Crossman] and myself that a requirement for you to work with this individual[21] was not expected to occur, and [Mr Crossman] provided further reassurance and commitment that if this unlikely association were to occur, the working arrangements would be put in place to ensure this was not the case”.[22]
[19] Exhibit G, p 2–3 [11]–[13].
[20] Corrected in Oral Evidence: “two people”.
[21] Corrected in Oral Evidence: “two people”.
[22] Exhibit A, T60.
By 30 January 2019, the Applicant reported to his GP that he felt his condition was well controlled. He was still on anti-depressants at this time.[23]
[23] Applicant’s SoFICs, p 3 [23]; Exhibit G, p 3 [14].
On 6 March 2019, the Applicant attended a work meeting with Ms Rendell (Colleague). Upon arriving at that meeting he realised it was to be chaired by Mr I.[24] The Applicant submits this was a surprise, and he was unaware the meeting was to be chaired by Mr I. He felt obliged to shake Mr I’s hand. The meeting was for approximately one and a half hours. The Respondent submits the Applicant was given two days’ notice of the meeting and was provided with a list of the meeting attendees via the outlook calendar invitation.[25]
[24] Exhibit A, T61 p 254–255; Exhibit G, p 3–4 [20]–[21].
[25] Exhibit J, p 1–2 [10]; Exhibit A, T105 p 438.
On 6 March 2019, at about 2.30PM, the Applicant attended what he said was a pre-arranged Project Debrief Meeting with Ms Rendell and Mr Luke (Supervisor[26]), which took place in an office where Ms Hyde (Colleague) was also present in the immediate vicinity.[27] Ms Rendell, Mr Luke and Ms Hyde all observed the Applicant was visibly upset during the Project Debrief Meeting.[28]
[26] Note: the Applicant disputed this fact, he stated Mr Luke was a “colleague” and not his manager/supervisor.
[27] Exhibit G, p 3 [18]–[19].
[28] Exhibit D; Exhibit A, T62; Exhibit J, p 2 [16].
During the Project Debrief Meeting, the Applicant explained his past relationship with Mr I and Col H.[29] Mr Luke stated during the explanation, “[the Applicant] made threats against them”.[30] Mr Luke’s statement of the meeting with the Applicant, dated 6 March 2019, reads:
“[The Applicant] proceeded to get upset and mentioned if he ever saw [Col H] again he would slit his throat and didn’t mind if he would rot in jail and his life had been ruined. He proceeded to say if he didn’t have a knife he would use a pen or something”.[31]
Mr Luke told the Applicant that he did not have to work with Mr I and Col H; he would be removed from projects involved either individual; directed the Applicant to go home; and subsequently told him his conduct was inappropriate and it would be reported.
[29] Exhibit G, p 3–4 [20]–[22].
[30] Exhibit J, p 2 [15].
[31] Exhibit A, T163 p 1 [11]; Exhibit J, p 12 [11].
The Applicant has admitted to using words to that effect.[32] That same day, the Applicant called Mr Luke to inform him he would be seeing his GP the following day and would not be in to work before the appointment.[33] Mr Luke reported the incident to Ms MacDonald and on 7 March 2019 prepared a Defence Incident Report (“Record of Incident”).[34] Ms Rendell and Mr Luke provided statements, which are before the Tribunal.[35]
[32] Exhibit G, p 4 [23]–[26].
[33] Exhibit J, p 1 [8]; Exhibit G, p 4 [27].
[34] Exhibit A, T62.
[35] Exhibit J; Exhibit D; Exhibit A, T63.
On or about 7 March 2019, Ms Martin (Senior Investigator, Directorate of Conduct and Performance) was appointed investigator to review the material, in the context of whether there should be a formal investigation to determine if the Applicant had breached the Code of Conduct.[36]
[36] Exhibit A, T101 p 422.
On 7 March 2019, the Applicant attended his GP appointment. In reference to the events of 6 March 2019, the Applicant advised his GP he had increased his dosage of anti-depressants. The Applicant’s GP agreed he should continue this increase in anti-depressants as needed.[37] The Applicant obtained medical certificates and did not attend work 7 and 8 March 2019, save for the morning on 7 March 2019 when he logged into a workplace computer from a remote workstation to “do some necessary work”.[38]
[37] Exhibit G, p 5 [31].
[38] Exhibit A, T100 p 418; Exhibit G, p 5 [29].
On 9 March 2019, the Department issued a “Suspension from Duty” Notice under s 28 of the Public Service Act 1999 (“the PS Act”) and reg 2.10 of the Public Service Regulations 1999 (“the PS Regulations”).[39] This Notice was not provided to the Applicant, and on 11 March 2019, the formal suspension of the Applicant was placed on hold until he returned to work. He remained off work due to an unrelated medical condition.
[39] Exhibit A, T69, T101 p 422.
On 11 March 2019, the matter was referred to the Directorate of Conduct and Performance and the Code of Conduct process formally commenced.[40] For the period of 11 March to 18 April 2019, the Applicant obtained Medical Certificates and was unfit to work as he had undergone an unrelated medical procedure.[41] The Applicant was unaware of the Suspension from Duty Notice and Code of Conduct Investigation taking place.[42]
[40] Exhibit A, T65.
[41] Exhibit G, p 5 [33]–[35]; Exhibit A, T100 p 418, T101 p 422.
[42] Exhibit G, p 5–6 [36]–[40].
On 23 April 2019, the Applicant returned to work. At a meeting at about 10:00AM the Department issued the Applicant with a “Notification of Suspected Misconduct”.[43] The Applicant was additionally given a “Suspension from Duty” Notice with pay.[44]
[43] Exhibit A, T70–T71.
[44] Exhibit G, p 5–6 [36]–[37]; Exhibit A, T100 p 418; Exhibit I; Note: Exhibit B(3), p 6 [11] states “without pay”.
On 3 May 2019, the Applicant attended a GP appointment for his mental health and obtained a further prescription of his anti-depressants, and referrals to his psychiatrist, Dr Arya and psychologist, Ms Pereira.[45]
[45] Exhibit G, p 6 [41].
On 21 May 2019, the Applicant’s GP prepared a mental health care plan.[46]
[46] Exhibit G, p 6 [43].
On 27 May 2019, the Applicant’s legal practitioner provided a response to the Notice of Suspected Conduct and Suspension from Duty Notice.[47]
[47] Exhibit A, T72–T73, T78; T100 p 418.
On 15 June 2019, the Applicant consulted his treating psychiatrist, Dr Arya, who recommended the Applicant continue to increase his dosage of anti-depressants.[48]
[48] Exhibit B(3), p 6 [11]; Exhibit G, p 6 [43].
On 21 June 2019, the Applicant attended another GP appointment, and received an increased prescription of anti-depressants, as per the advice of Dr Arya. On the same day, an authorised delegate issued a “Determination of Breach”, and the matter was forwarded to a Sanction Delegate for consideration. A further Notice regarding “Review of Suspension from Duty” was issued.[49]
[49] Exhibit A, T75.
On 24 June 2019, the Applicant received the “Determination of Breach” Notice, dated 21 June 2019, and a further Suspension from Duty Notice which informed the Applicant he was now suspended without pay.[50]
[50] Exhibit A, T100 p 419, T101 p 422; Exhibit G, p 6–7 [47].
On 24 July 2019, the Applicant applied to the Merit Protection Commissioner for review of the Determination of Breach Notice, but that application was unsuccessful as the Commission endorsed the process adopted by the Department.[51] On 1 October 2019, a delegate of the Commissioner recommended that the decision be affirmed.
[51] Exhibit A, T75, T79–T81; Respondent’s SoFICs, p 5 [4.24].
On 2 January 2020, an “Intention to Sanction–Termination of Employment” Notice was provided to the Applicant by email.[52] The Applicant’s Suspension from Duty without pay continued.[53]
[52] Exhibit A, T82; Note: Exhibit A, T100 p 420 & Exhibit G, [51] states 6 January 2020; Exhibit B(1), states 7 January 2023.
[53] Exhibit A, T100 p 421.
On 20 January 2020, the Applicant’s legal practitioner responded to the Intention to Sanction–Termination of Employment Notice by email.[54]
[54] Exhibit A, T84; Note: Exhibit A, T100 p 420 states 10 February 2020.
On 25 March 2020, the Applicant’s Suspension from Duty without pay was reverted to Suspension from Duty with pay, in response to representations made by the Applicant’s legal practitioner, in recognition of the financial situation of the Applicant and the impact of the COVID-19 pandemic.[55]
[55] Exhibit A, T100 p 421.
On 9 April 2020, the “Sanction Determination” was made, and the decision was to re-assign the Applicant’s duties.[56]
[56] Exhibit A, T100 p 421; Exhibit G, p 7 [54].
On 12 April 2020, the Applicant submitted his claim for aggravation of his prior Workers Compensation Claim.[57] On 16 October 2020, the Respondent denied the Applicant was entitled to compensation for MDD under s 14 of the SRC Act.
[57] Exhibit A, T92; Exhibit B(3), p 7 [11]; Exhibit G, p 7 [55].
On 4 March 2021, the Applicant accepted voluntary redundancy from the Respondent.[58]
THE EVIDENCE
[58] Note: Exhibit B(3), p 8 [11] states February 2021.
The Applicant’s Opening
The Applicant’s Counsel submits the issues before the Tribunal are narrow. There is no dispute the Applicant is suffering from aggravation of his MMD, which is an ailment, as defined by s 4 of the SRC Act; and there is no dispute the aggravation of the Applicant’s previously accepted Workers Compensation Claim for MDD was contributed to, to a significant degree, by his employment with the Department.
The issue is whether the Respondent can demonstrate the aggravation of the Applicant’s MDD falls within the exclusion provided in s 5A of the SRC Act on the basis that the aggravation was a result of administrative action taken in a reasonable manner in respect of the Applicant’s employment by the Department.
There is no conflict with the medical evidence insofar as the diagnosis of MDD is concerned. The Applicant submits it was the events of 6 March 2019 that resulted in the aggravation of his MDD, enlivening his entitlement to compensation. The Applicant submits the key causal event of the aggravation was not the result of reasonable administrative action that falls within the exclusion provision. The Applicant also submits his MDD was further impacted upon by subsequent events in the workplace, including disciplinary procedures. Alternatively, if the Tribunal found it was the subsequent administrative action that was a causal factor to the aggravation of the Applicant’s MDD, the exclusion provision would, nonetheless, not apply because the Department did not undertake reasonable administrative action in a reasonable manner.

Two employees of the Department are identified as impacting upon the Applicant’s MDD diagnosed in 2016, namely Mr I and Col H (First-and Second-Line Managers at that time). He was, then, diagnosed with MDD with suicidal ideations. He made a successful gradual return to work. His medical practitioners all emphasised the importance of the Applicant not returning to the same work environment involving either of those two individuals.[59] This was also reflected in the Applicant’s medical certificates relating to his work.
[59] Exhibit A, T35–37.
The Applicant’s transition back into the workplace included an undertaking, given in 2018 by the Department, that he would not be required to work with either Mr I or Col H, with appropriate arrangements to be put in place to ensure this continued. It was the events of 6 March 2019, the meeting with Mr I, compounded by a subsequent meeting that day with Mr Luke, which resulted in the Applicant feeling obliged to disclose his past history of conflict. He was on sick leave thereafter until 23 April 2019 due to an unrelated illness. On his return to work, he was informed of an investigation in relation to the alleged breach of the Code of Conduct and he was suspended immediately, with pay. The Applicant was critical of that process particularly having regard to the Applicant’s prior history with Mr I and Col H and their knowledge of his MDD.
The Applicant also submits the administrative action undertaken by the Department following the Applicant’s return to work was not taken in a reasonable manner.
The Respondent’s Opening
The Respondent submits they do not accept the Applicant’s MDD was aggravated on 6 March 2019, as when contemplated by the SRC Act, it is necessary for the Tribunal to be satisfied that the aggravation of the Applicant’s MDD was contributed to, to a significant degree, by the meetings on 6 March 2019.
It is accepted that Dr Schirripa and Dr Ewer opined that the meetings of 6 March 2019 were the triggering events leading to the aggravation.[60]
[60] Exhibit B(3), p 27 [28.6].
The question for the Tribunal, having regard to the medical evidence, is whether the meeting with Mr I, coupled with the subsequent meetings with Mr Luke, were enough to satisfy the requirements of s 5A of the SRC Act, and enliven the Applicant’s entitlement to compensation; or, if they contributed to, if at all (in and of themselves), the aggravation of the Applicant’s MDD; or, if it is a combination of the meetings, together with the administrative action undertaken by the Department.
Dr Schirripa places significance on the action taken by the Department, following 6 March 2019, as giving rise to the aggravation of the Applicant’s MDD.
The Respondent submits the 6 March 2019 meeting, chaired by Mr I, was not administrative action. The Applicant’s attendance at the meeting was part of his duties of employment. He was not directed to attend the meeting. The Applicant looked after his own affairs and part of his duties included attending the meeting.
The subsequent Project Debrief Meeting occurred during which the Applicant made the threat. The later meeting that day involving Mr Luke, in which Mr Luke directed the Applicant to leave the workplace, the Respondent submits, was part of the broader administrative action, as Mr Luke had cause to reflect on that Project Debrief Meeting and the serious threats made by the Applicant to the life of Col H. Hence, the Respondent submits it would be artificial to exclude the meeting chaired by Mr I as isolated non–administrative action because it resulted in the Applicant’s disclosure of his history with Mr I and Col H, the threat to the life of Col H and the later meeting with Mr Luke, in which the Applicant was asked to leave the workplace. The meetings transitioned and should be looked at holistically.
The Respondent submits the administrative action was taken and conducted in a reasonable manner, and notes the Applicant was legally represented during the Code of Conduct investigation process.
The Applicant
The Applicant provided a statement, dated 16 June 2022.[61] He confirmed the contents were true and correct.
[61] Exhibit G.
In the Applicant’s statement, he states he commenced employment with the Department as an Estate Facilities Manager, in 2006.
He suffered symptoms of depression and anxiety in mid-late 2015, which escalated from 8 April 2016 following a meeting with his supervisors Mr I and Col H. As a result of issue with his supervisors, the Applicant developed suicidal ideations and was diagnosed by his treating psychiatrist, Dr Arya, with MDD and associated anxiety secondary to work-related stressors. He lodged a Workers Compensation Claim with the Department, which was accepted.
The Applicant’s Counsel referred to the Applicant’s statement in which he described events in 2018 which gave rise to a concern that he may be required to again work with Mr I and Col H.[62] The Applicant confirmed he met with Mr Crossman and Ms MacDonald and was told he was not expected to work with Mr I and Col H in the future, and if such contact occurred alternate working arrangements would be made to avoid this.
[62] Exhibit G, p 2–3 [11]–[13].
The Applicant’s Counsel also referred him to an email he received from Ms MacDonald, dated 23 May 2018.[63] Ms MacDonald referred to a meeting, held on 22 May 2018, and to the proposal the Applicant would not be required to work with “an individual”.[64] The Applicant said they discussed the Applicant not being required to work with Mr I or Col H. He said as part of his return-to-work arrangement he would not be required to work with either individual in the future. This was also consistent with the medical certificate, which certified him fit for modified duties in a different workplace, with different supervisors.[65] The Applicant said, as a result of the email, he contacted Mr Buckley (the Associate Secretary of the Department). The Applicant’s relationship with Ms MacDonald was strained. There were some inaccuracies in the email. He sought assistance from Mr Buckley to address the differences. He did not reply to Ms MacDonald because he didn’t want to open up an email discussion with her.
[63] Exhibit A, T60 p 252.
[64] Exhibit A, T60 p 252 [4]; Corrected in Oral Evidence: “two people”.
[65] Exhibit A, T57 p 245.
The Applicant understood the results of that meeting, and subsequent email, were that arrangements would be put in place to ensure he did not associate with either Mr I or Col H. The Tribunal notes the Respondent did not dispute that arrangement was in place with the Department.
The Applicant’s statement said following the events in 2018, he started to see his GP and resumed taking anti-depressant medication, and by 2019 his mental health condition was under control.
He stated in his new role the allocation of Capital Facility Projects, managed on behalf of the Estate Team, were divided between he and Ms Rendell, which arrangement was in part to ensure projects involving Mr I and Col H were allocated to Ms Rendell.
The Workplace Incident, 16 March 2019
On 16 March 2019, the Applicant attended the Department’s “JO105 Capital Infrastructure Project Start Up Meeting”, scheduled from 10:00AM–1:00PM. He was asked to attend the meeting by Mr Horrigan (whom the Applicant claims to be his First-Line Manager), to provide his sections project administration support while Ms Rendell was on leave. The Applicant knew Mr I was the Project Director but did not expect him to be at the meeting. It would be inconsistent with the agreement, so he did not expect to be asked to attend a meeting involving Mr I, and these meetings are, in his experience, convened and run by Project Managers. Given the late notice requesting he attend the meeting, he did not check the attendee list on the outlook calendar invitation.
The Applicant stated he was shocked to see Mr I was chairing the meeting. They shook hands. The Applicant stated he was too shocked to do anything, was torn between how he felt, and possibly having to answer to Ms MacDonald as to why he did not participate in the meeting. He felt disturbed and nervous, his heart was racing. He attended the initial part of the meeting including a site tour, however due to his anxiety he did not attend the remaining risk workshop and made an excuse and left. He was in the meeting with Mr I for over one and a half hours.
At about 2:30PM, he attended a Project Debrief Meeting with Ms Rendell and Mr Luke. This occurred in the office he shared with Ms Rendell and Ms Hyde. Ms Hyde was present in the office, but not taking part in the meeting.
The Applicant said, amongst other things that, he mentioned to Mr Luke that he was shocked to come face to face with Mr I; Mr Luke said he had no knowledge of the issue with Mr I; Mr Luke pressed him to provide more detail of the issue and insisted on an explanation; and the Applicant then felt obliged to “relive” past events. The Applicant also said he felt the need to convey the importance of not working with Mr I and Col H. The Applicant’s Statement said:
“I explained how despairing and suicidal they had made me feel based on my thoughts two years prior while on the upper deck at River boat cruise at my worst. As I spoke of the example I recall my emotions unexpectedly surfaced. In that context, when trying to explain how I had felt, I made the unfortunate comment to the effect that I was afraid I would cut [Col H’s] throat and if I did not have a knife I would use a pen. I had only been trying to convey how I felt of my worst 2016. It was in no way intended as a current threat or intention. I was on the verge of tears felt cold and flushed.
I regretted using those words in my illustration. I realised how they sounded and could be perceived. I recall immediately apologising to all three persons in the room where that de-brief conversation was taking place.”[66]
[66]Exhibit G, p 4 [22]–[23].
Ms Hyde asked the Applicant if he was alright. He replied he was not. She offered to assist by informing Mr Luke about his prior history with Mr I and Col H, and what had occurred giving rise to his previous Workers Compensation Claim. She also suggested Mr Luke view the Applicant’s Human Resource (“HR”) records. The Applicant said Mr Luke asked her to leave.
The Applicant told Mr Luke that for the last three weeks he had been seeing his GP for an unrelated illness, and he a had a scheduled appointment the following day. Mr Luke suggested the Applicant go home and take sick, or flex, leave to recover and return to work when he felt better. Before he left, Mr Luke invited the Applicant into an office and said his comment had been inappropriate and unacceptable. The Applicant again apologised. On his way out the Applicant apologised to Ms Rendell and Ms Hyde and assured them he would never harm Col H.
When he arrived home, the Applicant telephoned Mr Luke, confirmed his GP appointment, on 7 March 2019, and said he would provide a medical certificate. He again apologised for the comment he made and reiterated he did not mean it as a threat. Mr Luke told the Applicant he would formally report the incident, the Applicant understood this to mean he would advise Ms MacDonald and Mr Horrigan of what had occurred.
On the morning of 7 March 2019, the Applicant logged into a workplace computer from a remote workstation of Robertson Barracks. Mr Luke sent him a text telling him to log off and go home.
On 7 March 2019, the Applicant saw his GP, and told him, amongst other things, about the previous day’s events, what he had said namely, the threat and the reason why he said it. He explained it was to illustrate the issues he had dealing with Mr I and Col H. He told his GP he had increased his dose of anti-depressant medication. The Applicant received a medical certificate to return to work on (Monday) 11 March 2019.
The Applicant did not return to work on 11 March 2019. He was suffering from an unrelated illness. He underwent a number of medical procedures, including surgery, and did not return to work for approximately six weeks. During that time, he did not hear anything further from the Department in relation to the events of 6 March 2019. He said he remained significantly depressed, concerned that he may have to work again with Mr I or Col H. He was critical of the Department for not maintaining their promise he would not work with either individual.
On 23 April 2019, the Applicant returned to work. Mr Luke instructed him to attend a meeting with Ms MacDonald in her office at 10:00AM. He had 45 minutes notice of the meeting. He was advised the purpose of the meeting was in relation to the comments made on 6 March 2019. He was also advised HR would be attending, and he could have a support person present. The Applicant said he asked a person to attend but that person was unavailable, he did not have time to arrange someone else to support him, but he was not concerned about the meeting. He believed the matter had already been resolved when Mr Luke said on 6 March 2019 the incident would be reported to Ms MacDonald. He had thought what was to now occur was “some kind of formality”.
Ms MacDonald and Ms Milne (HR) were present. The Applicant was handed a letter entitled, “Notification of Suspected Misconduct”. The letter advised a formal investigation was to take place. The Applicant was invited to read the letter after which Ms Kliger (author of Notification of Suspected Misconduct letter) would be called on the telephone to join the meeting and discuss the matter.
The Applicant said he was surprised by this process.
The Applicant said he was then given a letter entitled “Suspension from Duty” Notice, with pay. The letter was read to him over the telephone by Ms Kliger. He was required to return his work identification, security pass and all work property to Mr Luke, who then escorted the Applicant off base. He was given seven days to respond to the Notification of Suspected Misconduct letter.
The Applicant said he was given no support other than the Employee Assistance Program (“EAP”) phone number contained within the two letters.
The Applicant was critical of Ms Kliger, who was not present at the meetings, including the meeting on 6 March 2019. He believed she may have relied on evidence of others to prepare the letter. He also was critical of the Department suggesting there was no reason why he could not have been assigned alternate duties, and that he was given no notice of the process, including his Suspension from Duty, was not invited to comment on the event or internal communications that occurred after the incident, and before the meeting on 23 April 2019.
On 3 May 2019, the Applicant consulted his GP. He received a further prescription for his antidepressants and was referred to his previous treating psychiatrist, Dr Arya and, psychologist, Ms Pereira.
The Applicant said he had a number of operations, and subsequently attended a pre-arranged family holiday. He hardly left the hotel room because of lack of motivation to socialise or go shopping.
On 21 May 2019, the Applicant’s GP provided a mental health plan. On 15 June 2019, he saw Dr Arya. The Applicant also instructed his legal practitioner to respond to the Notice of Suspected Conduct and Suspension from Duty letters.
On 24 June 2019, the Applicant received a “Determination of Breach”, dated 21 June 2019, and a further Suspension from Duty letter advising he was now suspended without pay. The Applicant said he was never invited to comment on this subsequent Suspension from Duty without pay letter.
On 21 July 2019, the Applicant responded to the Notification of Suspected Misconduct letter dated 23 April 2019, and the Determination of Breach letter, dated 21 June 2019.
He said the Sanction Determination process took an extraordinarily long period of time. By December 2019, he and his wife had sold and settled on their property in Darwin with the intention to relocate to Victor Harbor, South Australia, which move was impeded by travel restrictions due to COVID-19 pandemic.
From June 2019 to March 2020, the Applicant said he was suspended without pay. In February 2020, the Applicant’s legal practitioner made submissions and he was subsequently suspended with pay from 25 March 2020.
On 9 April 2020, a “Sanction Determination” was made in which he was given a reassignment of duties, which he described was a return to his identical role with the same people, at the same workplace in Darwin.
The Applicant said because of his mental health condition, he could not immediately return to work. On 12 April 2020, he made a Workers Compensation Claim for aggravation of his prior diagnosed (in 2016) MDD. He said the events of 6 March 2019, and the unexpected encounter with Mr I, together with the need to recount to Mr Luke his prior difficulties with Mr I, caused the aggravation.
The Applicant participated in a rehabilitation program and attempted to return to work but was unsuccessful. He experienced suicidal thoughts, attended hospital, and was given an increase in his anti-depressant medication.
On 4 March 2021, the Applicant took a voluntary redundancy.
The Applicant described the continued impact the incident had upon him, including reduction in social activity, sport activity, community engagements, lack of motivation and impairment of cognitive abilities including memory recall, concentration, socialising verbal and written communication, binge eating, weight gain, and high blood pressure and cholesterol.
Cross Examination
The Applicant said he never worked under Mr Luke. They were colleagues, working at the same APS6 level. He reported directly to Mr Horrigan. He said “in no way at all” was Mr Luke his supervisor in 2019. Mr Luke was a work colleague only. He disputed he and Mr Luke were friends. The Applicant said he met Mr Luke in 2006. They had some workplace interaction. They became work colleagues in late 2018.
In 2019, insofar as the Applicant was managing projects, he said Ms MacDonald put in place an arrangement that each APS6 employee (including he and Mr Luke) worked on a three-monthly rotation to assist Mr Horrigan, who in turn reported to Ms MacDonald. He said this never worked because Mr Luke and Ms MacDonald formed a relationship, which bypassed Mr Horrigan on a number of occasions.
The Respondent’s Counsel referred to the statement of Mr Luke, dated 8 April 2022, and the attached notes of the meeting, dated 6 March 2019.[67] The statement said: “[The Applicant] was an Estate Management and Planning Manager who reported to me”. The Applicant disagreed. He did not regard Mr Luke as his manager. Mr Luke was a spokesperson for same-level managers working on a three-monthly rotation. He was not a supervisor or manager of the Applicant.
[67] Exhibit J.
The Applicant said Mr Horrigan was his manager on the day of the incident, namely 6 March 2019. On 6 March 2019, Mr Horrigan and Ms MacDonald were in a training seminar. He disagreed with the proposition that in March 2019 Mr Luke was his day-to-day supervisor. He agreed that Mr Luke did not micro-manage his affairs.
The Applicant said he worked autonomously. His interaction with Mr Luke was mostly limited to annual leave negotiations. It was a requirement APS6 managers coordinate leave arrangements with each other, and Mr Luke would take the co-ordinated outcome to Ms MacDonald. To that extent, he reported to Mr Luke. The management of projects were coordinated through Mr Horrigan, albeit, Mr Luke would coordinate APS6 meetings, chaired by Mr Horrigan. Further, to that extent, he reported to Mr Luke.
The Applicant looked after his own projects and any meeting for which he was responsible. They had a combined outlook calendar, so all APS6 employees were aware of what each other did, and where each meeting was being held. This was separate from the formal calendars each APS6 ran for day-to-day management.
The Applicant said, prior to 6 March 2019, he believed he had made Mr Luke aware it was inappropriate he be required to work with Mr I or Col H, and for that reason if a project involved either, or both men, it was allocated to Ms Rendell.

The Respondent’s Counsel referred to the Applicant’s Statement, and the comment purportedly made by Mr Luke he had no knowledge of past history with Mr I or Col H.[68] The Applicant agreed nowhere in that paragraph did he say he previously told Mr Luke about any issue with Mr I or Col H, but he maintained his belief Mr Luke was aware of the issues.
[68] Exhibit G, p 4 [20].
The Applicant agreed he said in his statement he was shocked Mr Luke said he did not know about this issue given the previous assurances and undertakings given to him. The Applicant did not accept he did not tell Mr Luke and he also said he relied on assurances previously given.
In response to the Tribunal, the Applicant said it was a condition of the Applicant’s return to work that he would not work with Mr I or Col H. He could not clearly indicate who gave the assurance, but the email from Ms MacDonald was merely a confirmation of the arrangement put in place. He said the working arrangement was to be communicated to others, such as in-line managers, but potentially not to other APS6 employees. The Applicant could not say why any other APS6 managers were to be made aware of the conflict, save that they work in a team and other colleagues would know and take the lead for that project under his tutelage.
The Applicant said he felt he did not have to check every allocation of work to ensure he did not come into contact with Mr I or Col. That would have been addressed by Ms Rendell having received projects with either individual. He then said he would allocate projects involving either individual to Ms Rendell. The Applicant said he was Ms Rendell’s Line-Manager. She came from a different work stream and was placed with the Applicant to help and tutor her into that role. As at March 2019, she had been in the position for approximately six months.
Respondent’s Counsel referred to the Applicant’s Statement, and the meeting with Mr I on 6 March 2019, scheduled from 10:00AM–1:00PM that day.[69] The Applicant attended that meeting at the direction of Mr Horrigan, so he could provide his sections support on the project while Ms Rendell, who was responsible for the project, was on upcoming leave. Ms Rendell also attended the meeting.
[69] Exhibit G, p 3 [16].
The Applicant knew Mr I was Capital Facilities and Infrastructure Project Director of the relevant project. Yet, the Applicant did not anticipate Mr I to be at the meeting. It was unusual for persons in Mr I’s position to attend such meetings. He said it may have happened in the past, but he could not be sure. It was possible he might have been there, but his position in the project was not a ‘red flag’ to the Applicant. He said if it was likely Mr I be there, other arrangements would be made consistent with the undertaking previously given.
The Applicant agreed he received an outlook calendar invitation to attend the meeting. When asked if it was his practice to check the calendar invitation to see who was attending, he said he did not do that all the time but did so from time-to-time. With the knowledge Mr I was the project Director, he did not think it was necessary to check whether he would be there. He did not expect him to be in attendance. He would have expected Mr Horrigan or Ms MacDonald (whom the Applicant submits are his First- and Second-Line Managers) to make alternate arrangements had they known Mr I was attending the meeting. It was not the Applicant’s expectation to be asked by Mr Horrigan to attend a meeting at which Mr I was to be present. Yet, the Applicant was not sure if Mr Horrigan knew of the tension between the Applicant, Mr I and Col H. He assumed he knew. The Applicant expected his Line-Managers would have been advised of the issues.
The Applicant was shocked to see Mr I at the meeting. The meeting started half an hour earlier than intended. As the Applicant walked into the room, Mr I walked out the door. Mr I extended his hand. The Applicant returned the gesture. They shook hands.
The Respondent’s Counsel questioned why the Applicant did not leave when he realised Mr I was chairing the meeting. The Applicant said that was “a reasonable assumption to make”, but he feared Ms MacDonald greatly, and she had previously said to him at a meeting not recorded in the email, dated 23 May 2018, “I either accept the job and do it or that [the Department] would take me to the task of refusing to undertake my duties”.
The Respondent’s Counsel questioned why the Applicant did not refer to this seemingly important reason for the Applicant not leaving the meeting in the Applicant’s statement. The Applicant agreed it was important, but said he believed Ms MacDonald would have had him “charged” for failing to perform his duties.
The Applicant was referred to the email, dated 23 May 2018, from Ms MacDonald to the Applicant, and Mr Crossman (whom the Applicant submits was his previous First-Line Manager). The email was part of the work arrangement he would not work with Mr I and Col H again. The Applicant agreed with the proposition the email was a qualified agreement he would not be required to work with either individual, or if the Applicant found himself in the unlikely position of that occurring, arrangements would be put in place to ensure it not continue.
The Applicant said this email was a re-commitment by the Department of the understanding it would be inappropriate for him to work with Mr I or Col H, and the Department would put in place arrangements to ensure that did not occur. It was put to the Applicant the email provided two assurances, namely:
(a) the Respondent would do what they could to ensure the Applicant did not work with either individual again; and
(b) that if, unfortunately, it did happen, the Department would make appropriate arrangements to ensure it did not occur.
The Applicant agreed with the former, but not the latter. He understood the latter to mean the Department would ensure it did not occur, knowing the consequences working with them for the Applicant.
The Respondent’s Counsel directed the Applicant to the following words of the email in reference to not being required to work with Mr I or Col H, namely:
“…and [Mr Crossman] provided further reassurance and commitment that if this unlikely association were to occur, then working arrangements will be put in place to ensure that this was not the case.”[70]
[70] Exhibit A, T60 p 252 [4].
The Respondent’s Counsel put to the Applicant this was a statement that if, in the unlikely event this did occur, then arrangements would be put in place that it does not continue. The Applicant did not answer the question but said he did not expect to work with either individual again. The Respondent’s Counsel pressed the Applicant to answer the question. The Applicant said he understood that interpretation by the Respondent’s Counsel.
The Tribunal suggested Ms MacDonald was attempting to reassure the Applicant he would not be required to work with either individual but, in the event there was a risk of an inadvertent, accidental contact or association with either individual, they would attempt to reverse that risk so it would not happen again. The Applicant agreed this is how the document reads. He said he did not challenge what was written in the email to Ms MacDonald. He sent an immediate email to Mr Buckley to try and mediate what was going on in the email letter. Mr Buckley was Ms MacDonald’s Line-Manager. He bypassed Ms MacDonald because he felt bullied by her. He wanted a mediator to be involved.
The Applicant then said he had a number of issues with the email but did not elaborate. He said if he did not accept the email, he would be required to see his psychiatrist and get a “fit for work assessment”. He then said he was told to go home and not return to work without that fit for work assessment.
The Applicant described the Department’s organisational structure and working arrangement. He, Mr Luke, Ms Rendell, and Ms MacDonald worked in the same facility. There were other facilities throughout the Northern Territory. Mr Luke worked as the lead for the Catherine facility but was not stationed there. He would go to the Catherine facility from time-to-time as required. Mr I and Col H both worked out of Canberra. The Applicant said he would not expect to come into contact with either individual on a daily basis. In 2016, the Applicant was based in Darwin as the representative for the Canberra base, and the projects being delivered in the Northern Territory. He liaised on behalf of the Canberra capital facilities with the regions and reported back to Canberra. Mr I and Col H were his managers. That was the working arrangement in which his previous Compensation Claim arose.
The Applicant agreed he regarded the assurance contained in the email as “ironclad” and the email was confirmation of the oral assurance given earlier to the Applicant.
The Applicant was referred to a letter from the Applicant’s legal practitioner, dated 27 May 2019.[71] In particular, he was referred to the reference of the 22 May 2018 meeting with Ms MacDonald and Mr Crossman, where the verbal assurance was given.[72] He agreed with Respondent’s Counsel proposition that the email, dated 23 May 2019, was confirmation of the verbal assurance as contained in the email quote referred to above. But the Applicant said based on his previous meeting with Ms MacDonald on 22 May 2019, he was told to accept the proposal otherwise he would be liable to performance management action.
[71] Exhibit A, T72, p 290–297.
[72] Exhibit A, T72 p 292.
He agreed what was discussed with Ms MacDonald was on the understanding he would not be required to work with Mr I or Col H. When asked if he agreed that at no time between 22 May 2018 and 6 March 2019 was he under the impression that he was under any obligation to work with Mr I or Col H, the Applicant failed to answer the question, and said, if he did not remain at the 6 March 2019 meeting he would have been liable to disciplinary action for not conducting his duties. His evidence became confusing. The Respondent’s Counsel put to the Applicant, having been told on 22 March 2018 he did not have to work with Mr I or Col H, it was implausible he believed if he did not remain in the meeting on 6 March 2019, he would be liable for disciplinary action. The Applicant’s answer was “such was the shock of having been faced and then at the doorway with his hand extended”.
In response to the Tribunal, the Applicant said that at no time between 22 May 2018 and 6 March 2019 had he been required to work with either Mr I or Col H. Further, he accepted until 6 March 2019 he was satisfied the assurances given to him were in place and had been maintained. Yet, the Applicant also said between 22 May 2018 and 6 March 2019 he formed the assumption that he would be dealt with for not performing his duties as a consequence of what was said at the 22 May 2018 meeting. He then said this was because on a number of occasions Ms MacDonald said he would be referred for fit for work assessment if he did not perform his duties. When further pressed, he then said on 22 March 2018 Ms MacDonald said she fully supported the proposal by Mr Crossman and if he did not accept that proposal, he would be sent for a fit for work assessment, for not carrying out duties.
The Applicant said the discussion on 22 March 2018 was in the context of him phasing out of one area of work and ushering into a new division, and how it operated. He then said was offered a different role and function, and if he didn’t accept that different role and function, he would be referred for a fit for work assessment. He agreed in the context of the new arrangement he would not have to work with Mr I or Col H. He agreed the arrangement continued until the occasion on 6 March 2019 when he met Mr I at the door of the meeting room.
The Applicant said he accepted, in good faith, the assurance would be upheld but he had doubts about the verbal assurance as confirmed in the email.
The Applicant rejected the Respondent’s Counsel’s proposition that on 6 March 2019 he could have walked out of the meeting. He said he feared the consequence would be a fit for work assessment. In response to the Tribunal, he said he did not feel the assurance would be upheld. He chose to remain in the meeting. He did not have to speak to Mr I. When asked why he believed that, when, for the preceding 12 months the assurance given was upheld, he said he was emotional and feared what Ms MacDonald would do in the circumstances. Ms Rendell was at the meeting but was to go on leave in two days and he was at the meeting for the benefit of the team.
The Applicant did not accept he had a choice to stay or leave the meeting. He said he stayed out of fear. Yet, the meeting was from 10:00AM to 1:00PM and he left after one and a half hours following the completion of the site walk. The Applicant said the second half of the meeting was a different project phase, and he was not required to report on that part of the meeting, hence he left. This is to be compared with the Applicant’s statement, which stated he was shocked to see Mr I, that he was torn between how he felt and possibly having to answer to Ms MacDonald why he did not participate in the meeting.[73] He was disturbed, his heart was racing, he attended the initial part of the meeting namely the site tour but “my anxiety was too great for me to attend the remaining risk workshop part of the meeting and I made an excuse and left”.
[73] Exhibit G, p 3 [17].
In response to the Respondent’s Counsel, the Applicant agreed he remained in the meeting for two reasons, namely, out of fear; and out of a sense of duty. The Applicant rejected the proposition that whatever misgivings he had about the level of assurance provided by Ms MacDonald, it was always open to him to leave the meeting as soon as he realised Mr I will be chairing the meeting. The Applicant said the fear about the position he may be placed in should he leave, overrode him leaving the meeting despite his belief that the assurance given by the Department was “ironclad”. The Applicant said he was in shock at that stage when he realised Mr I was chairing the meeting.
The first phase of the meeting was the site walk and listening to the delivery from the project administrator contracted by the Department. It was not in a room. The second phase was a risk management workshop. That phase was not critical to report at that stage. He felt he needed to complete the site walk, which was necessary to understand the proposed works.
Following the meeting chaired by Mr I, the Applicant and Ms Rendell had a “pre-arranged” Project Debrief Meeting that afternoon with Mr Luke.[74] He said this meeting was arranged at the request of Mr Horrigan. The meeting took place in the Applicant’s office. Ms Hyde was in the office, but the Applicant thought it was longer than five minutes as suggested by Ms Hyde. Other employees were not within hearing of the office which was at the end of a corridor.
[74] Note: the Applicant’s evidence was that the meeting was pre-arranged.
The Applicant agreed he and Ms Rendell started giving the Project Debrief, which was concise and short. He then became agitated and upset. Mr Luke said he could see he was upset and asked was there any issues. In that context, the Applicant started to explain the prior history with Mr I and Col H. The Applicant was shocked Mr Luke did not know of that prior history.
The Applicant agreed Mr Luke asked the Applicant to tell him more about the conflict so he could understand the context of the Applicant’s concern. Mr Luke asked why the projects with Mr I and Col H should be reallocated, and then confirmed that would occur. Mr Luke instructed the Applicant to cease work on all Capital Facilities and Infrastructure Projects (“CFI Projects”) which the Applicant regarded as a relief. The Applicant could not explain by what authority Mr Luke gave him that work direction. The Applicant agreed that after being given that direction he started to relax.
The Respondent’s Counsel suggested the Applicant said words to the effect that if he “saw Col H again [he] would slit his throat with a knife and if [he] didn't have a knife [he] would use a pen”. The Applicant said he never denied using those words. He later apologised to Mr Luke for the words used. What he disagreed with was the context in which he made that statement.
The Applicant was asked questions directed to how the Project Debrief Meeting occurred. The Respondent’s Counsel referred to Dr Ewer’s report, dated 1 April 2021.[75] There it is reported Mr Luke requested the Project Debrief Meeting because Ms MacDonald nominated him as spokesperson. The Applicant was referred to his earlier evidence that it was he, the Applicant, who requested Mr Luke have the Project Debrief Meeting. When asked which was correct the Applicant then said it was Mr Horrigan who asked he and Ms Rendell to debrief Mr Luke.
[75] Exhibit B(3), p 5.
The Applicant was again referred to the passage in the report, “[The Applicant] said on 6 March 2019, Mr Luke asked for a brief of the meeting because Ms MacDonald nominated him as the spokesperson”. The Applicant said Ms MacDonald nominated Mr Luke as spokesperson for the APS6 employees for administrative matters, including things such as leave and coordination of work, but not for this particular debrief. The Applicant could not explain why Dr Ewer reported that passage in his report. He said that Dr Ewer wrote this out of context.
In a further passage, the Applicant reported to Dr Ewer that Mr Luke insisted he explain what had previously happened with Mr I, and he had to do this on the same day after the confrontation.[76] He agreed he said that to Dr Ewer. The Applicant confirmed Mr Luke was insistent and pressing him for more detail, but accepted that was so Mr Luke could understand what had previously transpired and what he had to do as a consequence of the interaction with Mr I. The Applicant agreed the consequence was that Mr Luke directed the Applicant that he didn’t have to work on the CFI Projects.
[76] Exhibit B(3), p 5.
It was put to the Applicant that he intended, by the use of the word “insisted", to convey to Dr Ewer that he was forced against his will to tell Mr Luke what had happened. The Applicant said he was not forced against his will, but Mr Luke said there had to be something more to what the Applicant was explaining had previously occurred.
It was suggested to the Applicant that his comment to Dr Ewer was intended to convey that he was forced to reveal information he did not want to reveal. The Applicant then said that is what he felt at the time. However, the Applicant also repeated that once he realised why Mr Luke was asking for more information and he was then given the direction that he was not to work on CFI Projects, he was relieved.
The Respondent’s Counsel suggested the Applicant’s statement to Dr Ewer was a deliberate mischaracterisation of the way Mr Luke asked questions of the Applicant. The Applicant repeated he felt Mr Luke was insisting and pressing.
The Applicant agreed he reported to Dr Ewer that two years earlier he had thoughts of harming Col H and said “on the deck, I had thought that if I had a knife, I would slit his throat and if I didn't have a knife, I would use a pen”; and that he used those words to convey to Mr Luke how affected he was at that time. He reported that those thoughts were two years earlier and were not occurring in 2019. The Applicant denied he lied by making up that account in an attempt to minimise his threat by suggesting it was his thoughts two years earlier. The Applicant maintained it was an illustration of how upset he had been two years earlier.
The Respondent’s Counsel referred the Applicant to his subsequent apology to Mr Luke when they met for the second time that same day. The Applicant agreed he apologised to Mr Luke for what he said but that the apology was for the frank, and crass, nature of the words used to describe what he was thinking.

The Respondent’s Counsel referred to a psychiatric assessment with Dr Schirripa, and his report, dated 2 September 2021, which reads:
“He said he was then “excessively questioned” by another manager that day which led to [the Applicant] becoming angry and defensive and verbalising a threat of violence.”[77]
The Tribunal notes the passage continued:
“He stated he regretted this comment and had no intention of acting in such a manner. He said he apologised for making the threat.”
[77] Exhibit H, p 9.
The Applicant accepted he used the language “excessively questioned”. He denied saying to Dr Schirripa he became angry and defensive, and verbalised a threat of violence. The Applicant said that may have been the way Dr Schirripa interpreted and wrote it. When asked if he denied making the statement, the Applicant said he believed he made the statement in the context of being on the deck of a boat and by way of illustration of how he felt. He then conceded it was possible he did not refer Dr Schirripa to his thoughts occurring when he was on the deck of a ship, as he told Dr Ewer.
The Applicant said he could not explain why Dr Schirripa did not report the context in which he said the statement was made. He said that Dr Schirripa had various documents which detailed the circumstances in which the offending words occurred.
In response to the Tribunal, the Applicant said that when speaking to Mr Luke he told him that he would explain how he felt and why he felt suicidal and by way of illustration he said that two years earlier on the deck of a boat he had the thought of slitting Col H throat with a knife or if [he] didn’t have a knife with a pen. He made the comment by way of illustration of how he felt two years earlier. He did not make a threat to harm Col H in 2019.
The Respondent’s Counsel then put to the Applicant what was alleged to have been said to Mr Luke, on a number of occasions, namely that if he saw Coll H he was afraid he would kill him; that the Applicant wanted to slit his throat; that Col H ruined his life; that he did not care if he went to jail. It was put to the Applicant it was a forward-looking threat and not reflective of a past thought. The Applicant rejected that proposition.
The Applicant was referred to the Record of Incident prepared by Mr Luke, in which he reports:
“When [the Applicant] began speaking about Col H, he said a number of times that if he saw him he was afraid he would kill him and that he wanted to “slit his throat". [The Applicant] said he's ruined my life and I don't care if I go to jail.”[78]
[78] Exhibit A, T62 p 258–261.
The Applicant did not agree that was an accurate record of what was said in the meeting with Mr Luke. He did use those words, but not in that context. He maintained it was an illustration of his past thoughts.
The Respondent’s Counsel asked the Applicant whether he said Col H had ruined his life. The Applicant did not answer the question but said he felt that was the case. When pressed by the Respondent’s Counsel, he agreed he told Mr Luke he felt that was the case. He also agreed he said he did not care if he went to jail.
The Applicant was further referred to the Record of Incident. He agreed on 6 March 2019 Mr Luke directed him to go home, and he remained on sick leave due to another unrelated illness.[79] The Applicant agreed he left the room after the meeting with Mr Luke. Mr Luke subsequently called the Applicant into another office to discuss the Applicant’s behaviour. The Applicant was asked whether he remembered Mr Luke saying his behaviour and statement about killing people were unacceptable. He failed to answer the question and when pressed by the Respondent’s Counsel, he said he might have used the words but he could not accurately remember. He could not recall clearly what Mr Luke said but he did not dispute what was said in the Record of Incident.
[79] Exhibit A, T62 [9]–[10].
The Applicant said he was starting to calm down, but he did not apologise for his behaviour. He apologised for the crassness, and directness of what he said in that demonstration of his feelings and how he expressed himself.
The Respondent’s Counsel referred to the Record of Incident and the second meeting on 6 March 2019 with Mr Luke. It records Mr Luke returning to the Applicant’s office. The Applicant, Ms Hyde and Ms Rendell were present. The Applicant said he had been telling them he didn’t mean what he said in his outburst. The Applicant did not agree with that Record of Incident and said it was out of context. When pressed, he did agree it was correct. He agreed he was calm at that time, and he was directed to go home.
The Applicant telephoned Mr Luke at about 4:30PM, and confirmed he had a medical appointment the next day. The Applicant denied he apologised for his behaviour on this telephone call. He “apologised for the candid and frankness of the words”.
Insofar as it is reported, the Applicant said he didn’t believe he would follow through with the threat, he agreed he said that. The Applicant did not accept this was further evidence of the threat of a future event, rather than an expression of his state of mind two years earlier. He agreed Mr Luke said he had crossed the line and would formally report the incident.
Treating Psychiatrist, Dr Arya provided a report, dated 23 August 2016.[80] The report related to the Applicant’s earlier accepted Workers Compensation Claim. In referring to the occasion when he was on a cruise ship, the Applicant reported his state of mind as follows:
“[The Applicant] admitted that he had started feeling suicidal. On one occasion he climbed on top of the Cruise Boat and was thinking of jumping. Rather than talking to anyone, [the Applicant] wanted to sleep all the time. [The Applicant] had started ruminating about the fact that there were three people who he knew of who had committed suicide within the previous five years. Two other people had left the Department because of the deteriorating environment and culture within the workplace.”[81]
[80] Exhibit A, T35 p 140–147.
[81] Exhibit A, T35 p 142.
The Applicant did not mention the thought of slitting Col H’s throat. He said the reason he omitted this he was because he was ashamed of those thoughts and struggling with his values at the time.
In the report of psychiatrist, Dr Kenny, dated 23rd September 2016,[82] there was reference to the Applicant being on a boat in Europe.[83] The Applicant accepted that there was no mention of the thought of harming Col H, and he did not tell Dr Kenney about those thoughts.
[82] Exhibit A, T35 p 175–187.
[83] Exhibit A, T40 p 178.
In the report of psychiatrist, Prof Hundertmark, dated 24 August 2016,[84] the Applicant reported the incident on the boat as follows:
“[The Applicant] admitted to having some frank suicidal thinking. He said he thought of jumping off the upper deck of a cruise boat when on holiday recently. He said he was identified by one of the crew members and taken inside the cabin.
[The Applicant] described his difficulties with [the Department] as “like a psychological rape”. He stated “I’m just devastated, I have never been in this position before”.[85]
The Applicant accepted he did not make any comment about his thoughts of harming Col H.
[84] Exhibit A, T36 p 148–157.
[85] Exhibit A, T36 p 151.
The Applicant agreed the first time he mentioned his thoughts of harming Col H as an illustration of how he felt in 2016 was after the Project Debrief Meeting, on 6 March 2019, and to Dr Ewer.[86]
[86] Exhibit B(3), p 5.
The Applicant agreed after 6 March 2019 he did not return to work due to ongoing unrelated health issues and returned on 23 April 2019. Upon his return, he received the Notification of Suspected Misconduct and Suspension from Duty with pay, almost immediately.[87] For the first 30 days, he was suspended with pay and thereafter he was suspended without pay. The Applicant agreed there was a Code of Conduct Investigation undertaken while he was suspended. There was a finding that he breached the Code of Conduct, after which there was a process in which the appropriate Sanction Determination was considered and determined.
[87] Exhibit A, T72–T73, T78; T100 p 418.
The Applicant agreed the Sanction Determination process initially put the Applicant on notice that he may be liable for termination of employment, but ultimately, he was sanctioned and received a reassignment of duties which was the lower end of available sanctions. The Applicant agreed he was legally represented throughout the Suspension from Duty and Sanction Determination process.
The Applicant did not take issue with the proposition that the process undertaken was fair, and that he had the opportunity to present his case at every stage in that process, which he did through his legal practitioner. He did not allege any aspect of the process was unfair but described it as an agonising process, and extremely difficult.
He agreed that towards the end of the process he made a submission that the Suspension from Duty without pay was causing him financial hardship, and a decision was made to reinstate his pay.
Further, the Applicant did not assert the period of Suspension from Duty without pay was unreasonable.
In re-examination, the Applicant said he could not recall if the Project Debrief Meeting with Mr Luke was diarised, and when referred to his outlook calendar there was no entry for the meeting.[88] He said a meeting booked for 2:00PM that day was cancelled, so they used that time to have the Project Debrief Meeting.
[88] Exhibit A, T61 p 254.
In reference to the May 2018 assurance contained in the email, Mr Crossman subsequently left, and his position was filled by Mr Horrigan and that is why the Applicant believed Mr Horrigan would have known about the undertaking. Mr Horrigan assumed that position in approximately early 2019.
In relation to the fear the Applicant expressed of Ms MacDonald, the Applicant was referred to the email, dated 23 May 2018, and direction he undertake a fit for work assessment, which he said gave rise to his fear. Further, the email acknowledged that a number of weeks earlier there was discussion about the possibility of the Applicant changing his work role. That proposed change resulted in the Applicant self-reporting episodes of physical collapse, associated with anxiety, which was similar to his past mental health episodes. He was directed to take a period of leave. The Applicant explained that reaction was because he believed the change in work role exposed him to working with Mr I and Col H again. The fit for work assessment was required due to his reaction to the possibility of working with either individual.
The Applicant provided three certificates to Ms MacDonald and sought the intervention of Mr Buckley, (Ms MacDonald’s manager). The matter was not resolved. The Applicant said between June and August 2018, he sent a number of emails to Mr Buckley. Mr Buckley was to consult with his HR advisor. In August 2018, Mr Buckley responded that he would be in Darwin and would follow up with Ms MacDonald and get back to the Applicant. Nothing happened and the fit for work assessment process appeared to lapse.
In regards the Suspension from Duty, and other processes undertaken upon his return to work on 23 April 2019, after approximately six weeks leave, the Applicant said he was not given notice that the process would occur. He was told to attend a meeting that day in relation to his conduct but was not told it was in relation to a Code of Conduct investigation.
The process from the point when he was issued with the letters was not in question. What was in question was the request to attend the meeting on the day of his return to work. He said it was a “surprising shock” there was to be a Code of Conduct Investigation, and the meeting was about his immediate Suspension from Duty. He felt ambushed. He was unable to get a support person and he did not think to ask for an extension of time to do so. He thought they were going to talk about the incident but that is “not what actually occurred”. Present at the meeting was Ms MacDonald, Ms Milne and the Applicant. Ms Kliger appeared by telephone conference and after he confirmed that he had read the Notification of Suspected Misconduct letter, he was presented with Suspension from Duty Notice.
Ms Hyde (Colleague)
Ms Hyde provided a statement, dated 11 October 2021.[89] She agreed the contents of the statement were true and correct, to the best of her knowledge.
[89] Exhibit D.
Statement, dated 11 October 2021
Ms Hyde shared an office with the Applicant, and Ms Rendell, both of whom went to a meeting on 6 March 2019. The Applicant was extremely upset when he returned.
Ms Hyde said she went to assist the Applicant. He was upset because his previous supervisor, Mr I, was at the meeting. She tried to support and assist the Applicant. In respect of Mr I, the Applicant said, “you know what they did to me and how it's affected me”, and he managed to get through the meeting, but it was very difficult and stressful.
Mr Luke was in the office at the time. She told Mr Luke she was aware of the previous history with Mr I, and at the time, provided the Applicant with support.
The Applicant also said the Department had assured him that he would not have to work with either Mr I or Col H again.
Mr Luke requested Ms Hyde leave the office, which troubled her. She was worried for the Applicant’s health. She did not believe Mr Luke fully supported the Applicant at this time.
Ms Hyde subsequently received a request to provide a statement to HR in relation to the Applicant’s behaviour, on 6 March 2019. She believed the Applicant was overwhelmed and emotionally distraught by the situation he was put in having been led to believe he would not have to work again with the either Mr I or Col H.
Oral Evidence
In evidence-in-chief, Ms Hyde said in relation to the statement provided to HR, she referred to a comment made by the Applicant. He said something to the effect that he could have hurt them. He made the comment to Mr Luke. She believed the comment was made in relation to his state of mind in the past in 2016. The statement she made to HR was at a time when her recollection of the events was much clearer. The Respondent has been unable to identify the previous statement.
Ms Hyde believed the words the Applicant used were “I could have killed them” and that’s why she believed he was talking in the past tense and not expressing a current intent. She believed she said something to that effect in the statement to HR. Ms Hyde said in her view there was no malicious intent in the statement made by the Applicant on 6 March 2019. It was not an imminent threat to anybody else. He was in a distraught state at that time.
When she worked with the Applicant, in January 2019, she had just returned to work on a graduated return to work program. The Applicant updated her on what happened in relation to the events in 2017 and the impact it had upon him. As a result of the conversation, Ms Hyde believed there was tension between the Applicant, Mr I and Col H.
Ms Hyde said Mr Luke’s conversation, when dealing with the Applicant, was monotone and did not demonstrate any empathy for the Applicant. He did not de-escalate the Applicant’s distress. Insofar as she was told to leave by Mr Luke, she went into the open office plan area near the shared office. She could not recall hearing what transpired in the office.
Ms Hyde saw the Applicant later when he came and apologised for his behaviour, shortly before he left the workplace.
In cross-examination, Ms Hyde said she could not recall the Applicant saying, “If I see Col H again I will slit his throat”, nor the words “if I didn't have a knife I will use a pen”. Her memory was he said, “I could have killed them, they do not know what they put me through”. Ms Hyde agreed her memory of events had faded since 2019, but the Applicant was upset, and his demeanour was out of character. She was worried how upset he was, and that he may be suicidal.
Ms Hyde had concerns about how the Applicant was treated that day by Mr Luke but was not concerned about the way HR dealt with the Applicant. She did not recall Mr Luke asking the Applicant why he did not want to work with Mr I or Col H. All she knew was as told to her by the Applicant that he had an assurance that he did not have to work with Mr I or Col H in the future.
In response to the Tribunal, Ms Hyde said the Applicant did not appear to be out of control. He started to calm down when she spoke to him but when Mr Luke came into the room “he started to get heightened again”. She said she was with the Applicant for about five minutes before she was asked by Mr Luke to leave.
Mrs Keating (Applicant’s wife)
Mrs Keating provided a statement, dated 16 June 2022, which she said was true and correct.[90] Her statement was received and not challenged in cross-examination.
[90] Exhibit F.
Statement, dated 16 June 2022
In that statement, she confirmed on 6 March 2019 the Applicant came home from work early, was quiet, reserved, very upset and agitated. She described this behaviour as unusual for the Applicant because he usually enjoyed his work role.
After a few hours the Applicant told her what happened at work that day. She described him as extremely agitated, jittery, upset and had difficulty expressing words for what happened.
Without repeating, in detail, the contents of the statement, the day’s events described to her by the Applicant were generally consistent with the evidence he gave before the Tribunal. That included the meeting with Mr I, the Project Debrief Meeting with Mr Luke, Mr Luke having no knowledge of the issues with Mr I and the Applicant attempting to provide him with an explanation. The Applicant told her Mr Luke relentlessly pressured him for more detail and that in the course of doing so referred to his suicidal thoughts in 2016. She stated:
“[The Applicant] told me he became more unsettled during the de-brief meeting because Mr Luke relentlessly pressured him for more and more detailed information. [The Applicant] said that after some time he became even more frustrated and distressed from being continually pressured by Mr Luke for details to the point [the Applicant] said he regrettably gave a very candid account of his 2016 suicidal intent and those thoughts that had brought him to consider suicide back in 2016. [The Applicant] said his comments were intended expressly to demonstrate to Mr Luke why it was not reasonable for [the Applicant] to be placed in further direct association or be required to work with either Mr I or Col H.”[91]
[91] Exhibit F, p 1 [10].
The Applicant told his wife Mr Luke suggested he go home early and take sick, or flex, leave the following day. From 6 March 2019, she observed mood swings, memory loss, sleeplessness, long periods of silence, lack of motivation, unexpected outbursts of rage/anger and inability to hold conversations. He demonstrated disinterest in social gatherings and said he was having suicidal thoughts.
Mrs Keating said her husband was treated for severe depression following their return from an overseas vacation, in May 2016. That treatment tapered off in late 2017 but was increased again following the events of 6 March 2019. Since that date, the Applicant's mental health has placed strain on their personal relationship, and she retired prematurely in October 2019. They have also had periods of living apart due to the impact his health had on their marriage. They have now reconciled.
Mr Luke (Applicant’s Supervisor)
Mr Luke provided a statement, dated 8 April 2022, and annexures including the Record of Incident prepared on 7 March 2019, detailing the events following the 6 March 2019 meeting.[92] Mr Luke said the contents of his statement were true and correct.
[92] Exhibit J.
Statement, dated 8 April 2022
In March 2019, Mr Luke was the Senior Estate and Planning Manager within the Service Delivery Division for the Northern Territory, South Australia, and Queensland. He said the Applicant was an Estate Management and Planning Manager who reported to him.

The Tribunal notes that the Applicant does not dispute that submission as a general principle but submits that the procedure adopted by the Department fell short of what was reasonable, including the failure to afford the Applicant procedural fairness.
In the unusual circumstances of the Applicant being away from the workplace, together with the serious threat of violence to harm other Department employees, and the Respondent not knowing the current mental health of the Applicant, the Tribunal is satisfied it was reasonable to await his return to work before commencing the process, and further, it was reasonable to undertake that process, without delay, and without the Applicant raising any concern about the meeting proceeding or that he wanted further time to arrange a support person to be present.
Two further separate administrative actions occurred on 23 April 2019. First, the Applicant was advised of his Suspension from Duty Notice, with pay; and second, he received the Notification of Suspected Misconduct.
The Respondent submits the administrative action involving the process commencing on 23 April 2019 encompasses a series of actions arising from the disciplinary process. It is submitted that it is a continuum of administrative action that needs to be look at in a holistic manner.[154]
[154] see Lynch and Comcare at [90].
The Respondent also submitted that insofar as the Applicant’s Counsel was critical of the failure of the delegate adhering to relevant policy, in undertaking the relevant procedure, the Tribunal finds that policy is to be regarded as a useful guide to managers in the performance of the administrative action but is not to be elevated to the level of a code. It is submitted the Tribunal needs to consider what was done and was in objectively reasonable in all the circumstances.[155] The Tribunal respectfully agrees with that submission.
[155] see Moore and Comcare at [26].
The Tribunal will not turn to consider the varies stages in that administrative process that was set in motion on 23 April 2019.
Code of Conduct Decision (“Notification of Suspected Misconduct”)
Ms Kliger was the delegate responsible for the Notification of Suspected Misconduct, and its consequence. She said the Notification of Suspected Misconduct was not a notice which required or obligated the Department to provide an opportunity for the Applicant to comment, as was suggested in cross-examination. The Tribunal accepts this evidence. It was a notice of suspension, not a notice of an intended decision.
The Applicant was given the opportunity to respond to the Notification of Suspected Misconduct that was given to him when he returned to work, on 23 April 2019. That Notice contained four attachments, namely:
(i) Code of Conduct Referral Checklist from Ms Kim MacDonald;
(ii) the “Record of Incident” from Mr Luke;
(iii) the “Record of Incident” from Ms Rendell; and
(iv) the Privacy statement. The Code of Conduct Procedures and the Policy Guideline–Code of Conduct were enclosed.
The Applicant’s Counsel was critical of the process, because Ms Kliger, and others, did not provide to the Applicant copies of emails she received.
The Tribunal has considered the emails that were provided to Ms Klinger. There are different email trails, and we will not summarise each email. The Tribunal notes an email, dated, 25 February 2019, appears unrelated to the events of 6 March 2019. One email is at 6:45AM on 7 March 2019, from the Director of Conduct and Performance, related to the commencement of the process. An email from Ms MacDonald to HR Service Branch at 8:05AM, on 7 March 2019, gave a brief summary of the previous day’s events, advised her manager, Mr Buckley, wanted the matter referred to the Code of Conduct team and advised Ms Hyde was present and raised an unrelated performance matter relating to Ms Hyde.
A further urgent email, from Ms Inches,[156] does not appear to have a date and time when sent, but forms part of this ongoing communication. The email is to Ms Waddell and Ms Kliger, and the subject of the email is Referral of Code Matter for Investigation. She refers to a conversation she had with Ms MacDonald who was concerned about the risk of the Applicant returning to the workplace and gave the reasons for the concern including the Applicant’s mental health, and the wellbeing of other employees including one who was pregnant. Ms Inches requested delegation authority with regards the Applicant’s Suspension from Duty and reminds the recipients of the need to ensure the Applicant is aware of supports available to him to ensure he is mentally healthy during the process. She notes the Applicant was not in the workplace that day.
[156] Exhibit M, JK-2.
It is argued the Applicant did not have the opportunity to respond to those emails and they should have been produced in addition to the statements and the failure to so resulted in the Applicant not being afforded procedural fairness.
In National Australia Bank Limited v KRDV, Cowdroy J sited, with approval, the decision of Bleby J in Keen v Workers Compensation Corporation in which His Honour said at [63]:
“In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background accounts to which the decision was made or implemented.”
Cowdroy J also referred to Bropho v Human Rights and Equal Opportunities Commission French J said at [79], that something is done ‘reasonably’:
“…if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgement. In this context that means judgement independent of that which the actor thinks is reasonable.”
The purpose of the emails was the urgent and immediate process that was put in place by the Department to commence the procedure relating to the alleged breach of the Code of Conduct, following the Applicant making of a very serious threat of violence to a work colleague. Although the emails evidence that initial process and give some explanation about what was to occur, and why, including whether the Applicant be permitted to return to the workplace, those emails were not material, used by Ms Kliger in her decision making.
The Respondent’s Counsel submits that procedural fairness requires a person who is entitled to know of an allegation may respond to any adverse information which is credible, relevant, and significant in respect of the decision. The Tribunal respectfully agrees with that submission.
Having regard to the material provided to the Applicant, it could not be said that he was left in any doubt about the allegation that was made about his misconduct. In cross-examination the Applicant accepted that the process was fair, and he had an opportunity to respond to the allegation and did so.
When the Code of Conduct and related process is considered objectively, the Applicant was on notice about those facts relied on by the Department in relation to the decision being made by each delegate in that process. In relation to Ms Kliger, those facts she considered in her decision to send the Notice of Intention to Suspend were the statements received from Mr Luke and Ms Rendell. The subsequent decision to suspend was also informed by the response from the Applicant legal practitioner, who, on behalf of the Applicant admitted to the making of a threat. Hence, having regards that procedure which the Tribunal will now detail, no breach of procedural fairness occurred.
The Applicant was given the opportunity to provide a submission in response to the Notice of Intention to Suspend and was granted an extension of time within which to do so. The response letter is dated 27 May 2019.[157] The Applicant admitted the allegation of misconduct, but he submitted this was a statement made in an emotional outburst which was to be seen against a background of finding himself in a workplace situation facing Mr I, contrary to the arrangement contained in the email assurance from Ms MacDonald and Mr Crossman. Further, he immediately made it clear he would not act upon the threat, and apologised.
[157] Exhibit M, JK-5.
Insofar as Ms Kliger did not receive the statement of Ms Hyde, prior to making her determination, that in the Tribunal’s view, is of little consequence. Ms Kliger relied on the statements of Ms Rendell and Mr Luke, and importantly the submission from the Applicant’s legal practitioner. The alleged threat was admitted; there was no dispute of fact with regards the making of the threat; and the Determination of Breach of the Code of Conduct was reasonable on the evidence before Ms Kliger. The Tribunal finds the action taken by Ms Kliger was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
Suspension from Duty Decision
Ms Waddell was the delegate responsible for the Suspension from Duty Notice.
The Applicant’s threat was regarded as very serious, and she explained the five reasons that underpinned the decision to issue the first Suspension from Duty Notice, dated 11 March 2019. The first Suspension from Duty Notice, prepared by Ms Waddell, was not provided to the Applicant because he was absent from work, and it was unclear when he would return.
Ms Waddell explained in the intervening period, the views of the Applicant’s supervisors were sought about the Suspension from Duty. Ms MacDonald did not want other employees exposed to the Applicant until the investigation was complete. The Applicant argues this response by Ms MacDonald demonstrated her prejudice towards the Applicant. The Tribunal rejects that submission. Ms MacDonalds response was arguably appropriate given the serious threat directed to a work colleague. She had an obligation to ensure the workplace was safe and other employees were not exposed to risk. She also had an obligation to the Applicant to ensure his wellbeing, that he was fit to return to work and that she understood the circumstances of the alleged incident. It was the completed investigation that would inform Ms MacDonald and others about how best to proceed in the future.
The Applicant is the only witness who suggests that there was an issue with Ms MacDonald. The Tribunal is not satisfied the Applicant is a credible and reliable witness and historian who may be inclined to interpret facts to best suit his position. This may be a consequence of his personality type but given the Tribunal’s concerns about the credibility and reliability of his evidence, and the absence of any evidence that may lend support to the Applicant’s criticism, the Tribunal is not satisfied the criticism of Ms MacDonald is established.
Hence, the fact that the views of the Applicant’s supervisors were sought, and considered, was appropriate and reasonable administrative action and the comment of Ms MacDonald does not impact adversely on the administrative action taken by the Respondent in regards the Code of Conduct, Suspension from Duty and Sanction Determination process.
The Suspension from Duty Notice was issued on the day the Applicant returned to work, on 23 April 2019, and was provided to him during the meeting. Under heading Period of Suspension, it reads:
“The suspension will be with pay for an initial period of 30 days pending further assessment of the matter. At this stage it is my intention to consider if the suspension continues after the 30 days whether it should be without pay after Thursday 23 May 2019. Please note the suspension from duty without pay does not count as service for any purpose, including for the accrual of leave.”
The next paragraph is headed Opportunity to Comment. The Suspension from Duty Notice there said if the Applicant believed he should not be suspended from duty he could write to request a review of that decision and provide material he wanted to be taken into account.
The Applicant’s Counsel was critical of the Suspension from Duty Notice because the Opportunity to Comment only referred to his Suspension from Duty, and not Suspension from Duty, without pay. Although the wording was arguably imperfect, it was plain the Suspension from Duty Notice informed the Applicant of the fact of his initial period of suspension was with pay, and the intention to then consider further suspension including without pay, and he had an opportunity to comment on that process.
The imperfection of wording in the Notice did not, in the Tribunal’s view, give rise to any ambiguity or misunderstanding which was to the detriment of the Applicant. The Suspension from Duty Notice was reasonable. Save for the meeting, on 23 April 2019, the Applicant was legally represented throughout this process. The Applicants legal practitioner requested an extension of time within which to respond to the Suspension from Duty Notice, which was granted to 27 May 2019.
Pending receipt of the legal practitioners’ submission, a Review of Suspension from Duty was issued, on 21 May 2019. That document, which was not before the Tribunal, said his suspension, with pay, would continue to 24 June 2019. Again, The Applicant’s Counsel was critical of the content of that document failing to give advance notice of the possibility of Suspension from Duty, without pay, and provide the Applicant with the opportunity to comment. The Tribunal respectfully rejects that criticism. This, 21 May 2019, Review of Suspension of Duty became necessary because the legal practitioners’ response to the original Suspension from Duty, dated 23 April 2021, was still pending, and the question of the Applicant’s suspension, including without pay, was due to be considered after 23 May 2019. The 21 May 2019 Notice ensured continuity in the suspension, with pay, pending receipt and consideration of the legal practitioners’ response.
Ms Waddell issued a Review of Suspension from Duty Notice on 21 June 2019, which gave notice to the Applicant he would be suspended, without pay, with effect from 24 June 2019. Ms Waddell took into account, amongst other things, the legal practitioners’ submission, and the Determination of Breach of the Code of Conduct by Ms Kliger. He was informed he could access his annual leave entitlements, and how he could do so. The Notice told him this suspension would continue until 24 July 2019, which did not mean the period of suspension, without pay, would end. He was advised of his rights to request a review of the decision.
The Tribunal rejects the submission the Applicant was not given advance notice or was not afforded the opportunity to comment on the suspension, without pay, for the reason previously given. The Suspension from Duty Notice, dated 23 April 2019, clearly informed the Applicant of both the fact of his suspension, and that Ms Waddell would be considering whether it should be without pay.
The Tribunal is satisfied that the suspension process undertaken by Ms Waddell was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
Sanction Decision
Ms Barbuto was the delegate responsible for determining the appropriate sanction as a consequence of the Applicant’s conduct. She was assigned the matter after the Determination of Breach of the Code of Conduct was made.
On 2 January 2020, she caused a Intention to Sanction–Termination of Employment to be sent to the Applicant. That was her preliminary decision. That Notice informed the Applicant she was considering imposing a sanction to terminate his employment. She formed the preliminary view that, “the employment relationship was untenable”. The Applicant was given the opportunity to respond, which he did on 10 February 2020, through his legal practitioner.
After considering the legal practitioners’ response, together with other information, including positive character references, and the fact Mr I and Col H no longer worked within the Department, she decided on a lesser sanction to reassignment of duties.
Ms Barbuto explained the length of time taken to reach her decision was necessary. The process was paused while they looked at other employment options for the Applicant. Ms Barbuto directed Ms Martin to inform the Applicant the process was paused, and the reasons why. Ms Martin was in regular contact with the Applicant.
This was a common procedure because termination of employment is a very serious sanction.
Ms Barbuto could not recall accurately whether that pause occurred before or after the Intention to Sanction–Termination of Employment was given to the Applicant. Her memory was that it was after, but it may have been before. She needed her case notes to explain the reason for the length of time taken in her decision-making process and she did not have them at the time of her evidence.
The evidence, therefore, does not inform the Tribunal as to when the “pause” occurred, the Tribunal is, therefore, not able to reach a level of satisfaction about when the “pause” occurred. Nonetheless, the Tribunal is satisfied Ms Barbuto did receive additional material which she considered and as a consequence she changed her preliminary view and imposed a sanction that was reassignment of duties.
Having regard the evidence before the Tribunal, in respect of the Sanction Determination process, and the manner in which Ms Barbuto undertook her duties, the Tribunal is satisfied it was in all the circumstances, objectively reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
Causation–Aggravation of Applicant’s MDD
In determining the cause of the Applicant’s MDD, the Tribunal prefers the opinion of Dr Schirripa, as contained in his report, dated 11 October 2021, as it related to the relationship between the administrative action, commencing 23 April 2019 and the aggravation of the Applicant’s MDD.
It is noteworthy that Dr Schirripa read the notes of the Applicant’s GP. Those notes did not document an increase in the Applicant’s medication, on 7 March 2019, as suggested by the Applicant to Dr Ewer. The notes documented that increase much later, from approximately late April into May 2019 when his psychological symptoms started to take hold and worsen. Again, this raises concern about the Applicant as a credible and reliable historian.
The Applicant may have had some reaction to seeing Mr I, and during the Project Debrief Meeting demonstrated a level of anger and upset, but he was told during that meeting he would not be required to work with Mr I and Col H, he was removed from all CFI Project work and Ms Rendell would be responsible for that work. The Applicant then calmed down. Given the abovementioned findings, the Tribunal has made about the circumstances of the meeting with Mr I, on 6 March 2019, followed by the Project Debrief Meeting later that day, the Tribunal is satisfied the Applicant did not suffer an aggravation of his MDD as a consequence of either meeting.
The Tribunal is satisfied it was the Code of Conduct, Suspension from Duty and Sanction Determination processes that were the significant cause of the aggravation of the Applicant’s MDD.
The Applicant was off work for a number of months while those processes progressed to conclusion. He was suspended, without pay, from 2 June 2019, for a number of months until his pay was reinstated on 25 March 2020,[158] prior to the finalisation of the Sanction Determination. The Tribunal accepts this process had a significant financial impact on the Applicant.
[158] Exhibit A, T90 p 351–353.
The question of the ongoing Suspension from Duty was the subject of regular review by the Department and no issue has been taken by the Applicant with that process, or that it was unreasonable. The financial impact was raised with the Department in a letter from the Applicant’s legal practitioner, dated 24 March 2020. The reinstatement of the Applicant’s pay was reconsidered by a new delegate who received that letter advising that his current suspension without pay was causing financial impact. The delegate said was aware of the financial impact COVID– 19 pandemic had on employees. The delegate determined it was appropriate the suspension continue but with pay effective immediately. This was evidenced in the ‘Review of Suspension from Duty–April 2020’, and dated 25 March 2020, one day after the legal practitioner’s letter.

The Tribunal also notes the Applicant moved to Victor Harbor, South Australia, in December 2019. He and his wife were separated for some time, during which the Applicant lived with a friend. The Tribunal accepts this would also have added to the level of stress and distress the Applicant was suffering and contributed to the aggravation of his MDD. But the Tribunal finds it was the administrative action following the Code of Conduct process that was the significant cause of the aggravation of the Applicant’s MDD.
CONCLUSION
It is accepted by the Respondent that the Applicant suffered an injury, namely a disease, being an aggravation of his MDD. The Tribunal respectfully agrees with that concession.
The Applicant argues that aggravation incapacitated the Applicant for work, and it arose out of, or in the course of, the Applicant’s employment, which was not administrative action. Alternatively, if it did arise out of administrative action, that action was not reasonable. The Respondent argues the aggravation arose in circumstances that fall within the exclusionary provision in s 5A(1), namely, reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
The Applicant’s attendance at the meeting on 6 March 2019, chaired by Mr I, was part of the Applicant’s employment duties, and was not administrative action. Further, the attendance at the Project Debrief Meeting at about 2:00PM that same day was also in the performance of his duties; but the nature of that meeting changed when the Applicant made the threat to Col H.
What occurred thereafter was administrative action undertaken by the Department. Mr Luke’s action, in addressing the Applicant’s misconduct, fell within the meaning of administrative action as defined in s 5A(2)(b)–(e) of the SRC Act. That administrative action also included the subsequent meeting when the Applicant was told his conduct was inappropriate; the direction was given to go home; was advised the matter would be reported, and the telephone conversation about the GP appointment. It additionally included Mr Luke’s direction the following morning the Applicant cease work and logged off his remote workstation computer at Robertson Barracks.
For the reason referred to above, the Tribunal does not accept the meeting with Mr I impacted upon the Applicant and gave rise to an aggravation of the Applicant’s MDD. Nor does the Tribunal accept that in the course of the Project Debrief Meeting, Mr Luke pressured, and thereby caused or contributed to, the aggravation of the Applicant’s MDD.
The Tribunal is satisfied the Applicant became agitated and upset upon recounting his issues with Mr I and Col H. But the Tribunal is not satisfied that agitation, and upset, aggravated the Applicant’s MDD or was itself evidence of such aggravation. He was reassured by Mr Luke he was not required to work with Mr I or Col H, and he calmed down following that assurance. The fact he logged into a workplace computer from a remote workstation at Robertson Barracks the following day, and his GPs medical certificate that he was fit to return to work on 11 March 2019, tends to confirm there was no aggravation of his MDD following the events of 6 March 2019. Further, he was fit to return to work but did not do so, until after the resolution of his unrelated health problems.
The Tribunal is satisfied the Applicant suffered an aggravation of his MDD, which aggravation he would not have suffered but for the administrative action commencing on, and from, 23 April 2019 and following. But, for that administrative action the Applicant would not have suffered an aggravation of his MDD. However, the Tribunal is satisfied that the administrative action was reasonable and taken in a reasonable manner in respect of the Applicants employment, and at each stage in the continuum of that reasonable administrative action that Applicant was afforded procedural fairness. Accordingly, the exclusionary provision under s 5A(1) applies in this matter.
DECISION
The decision under review is affirmed.

I certify that the preceding five hundred and sixty (563) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth and Member Dr L Stephan

........................[Sgnd]...........................................
Associate

Date of Decision:  28 July 2023

Date of Hearing:   22, 23 & 24 August & 3 September 2022

Solicitor for the Applicant:         Chloe Callus (Slater & Gordon Lawyers)

Counsel for the Applicant:          Jo Battiste

Solicitor for the Respondent:     Amanda Danti (Moray & Agnew)

Counsel for the Respondent:     Paul d’Assumpcao

[2023] AATA 2274

28 July 2023

Key Legal Topics

Areas of Law

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