Kelso and Comcare (Compensation)

Kelso and Comcare (Compensation) [2016] AATA 750 (27 September 2016)

Division	GENERAL DIVISION
File Number(s)	2014/5920
Re	Candis Kelso
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mrs J C Kelly, Senior Member
Date	27 September 2016
Place	Sydney

The decision under review made on 19 September 2014 which affirmed the decision made on 13 May 2014, denying the applicant’s claim for compensation, is affirmed.

......................[sgd]..................................................

Mrs J C Kelly, Senior Member

Catchwords

COMPENSATION – Commonwealth employee – anxiety and stress secondary to bullying and harassment – definition of “injury” - whether employment contributed ‘to a significant degree’ – whether reasonable administrative action – decision under review affirmed

Legislation

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

Cases

Lees v Comcare (1999) FCA 753

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

27 September 2016

Introduction

The applicant, Ms Kelso, seeks compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a psychological condition which she claims she suffers and which was caused by her employment with the Australian Taxation Office (ATO). She is seeking to have set aside the respondent’s decision of 19 September 2014, which affirmed the decision made on 13 May 2014 denying her claim, and to have substituted for that decision, a decision that she is entitled to compensation for that condition under the Act.
For the reasons that follow, I affirm the decision under review.

The law

The provisions of the Act in issue in this case are sections 5A and 5B which provide:

5A Definition of injury

(1)In this Act:

injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c) a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

5B Definition of disease

(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or

(b)an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)the duration of the employment;

(b)the nature of, and particular tasks involved in, the employment;

(c)any predisposition of the employee to the ailment or aggravation;

(d)any activities of the employee not related to the employment;

(e)any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.

The issues in this case

The review officer who made the 19 September 2014 decision, was satisfied that the applicant had suffered a condition contributed to, to a significant degree, by her employment but considered that the reasonable administrative action exclusion operated to exclude her claim. The review officer did not make a finding as to the date of injury because that officer took the view that the Federal Court has determined that the date of injury is not to be determined until the decision maker is satisfied that there is a compensable injury.
Before the Tribunal, the respondent’s position was that it accepted that the applicant had suffered from a condition, “that having regard to the applicant’s circumstances”, is “outside the boundaries of normal mental functioning and behaviour that persons unaffected by mental disease could be expected to exhibit in those circumstances” (the psychological condition) for a period in 2013 but did not accept that she currently suffers from such a condition. Therefore, it was not in issue in this case that the applicant suffered a disease, a psychological condition, in 2013. Both parties at the hearing accepted that the date of injury was 10 December 2013, although other dates were specified in other documents before the Tribunal.
The issues that arise in this case are:
·     A preliminary issue argued by the applicant: is the only issue before the Tribunal whether the unauthorised absence email dated 3 December 2013 was “reasonable administrative action”?
If that is not the only issue:
·     Accepting that the applicant suffered from an ailment, was that ailment contributed to, to a significant degree, by her employment, in accordance with section 5B of the Act?
·     If so, did the injury/ailment arise as a result of “reasonable administrative action” undertaken in a reasonable manner as set out in section 5A of the Act, and therefore was not an “injury” for which compensation is payable under the Act?

· Does the applicant currently suffer from an “ailment” or aggravation of an ailment, as defined in the Act?

The evidence before the Tribunal

The evidence before the Tribunal included:
·three volumes of section 37 documents, comprising 818 pages;
·the ATO enterprise agreement 2011;
·a statement of the applicant dated 24 November 2015;
·a floorplan of the relevant section of the ATO office;
·a statement of Edwina Johnson;
·an A4-sized folder of documents produced by the ATO pursuant to a section 71 notice;
·five sets of medical consultation notes; and
·a report of Dr George, psychologist, dated 16 April 2015 and the letter of instruction dated 9 April 2015.

Background

The applicant was born on 15 April 1973. She has six children. The four younger children were the children of the applicant and her former husband of 19 years. The applicant commenced working for the ATO in July 2000 after being promoted to APS5. The applicant had a lap-band operation in 2004 and lost 100 kilograms over about nine years. She was promoted to APS6 (operations collection officer) on 25 November 2011. A new team leader (the team leader) began managing the applicant on 1 July 2013. The applicant went on holidays from 17 September 2013 until 8 October 2013. She travelled overseas and underwent cosmetic surgery. Her marriage broke down in October 2013. The ATO moved offices on about 30 October 2013. The applicant lodged a workers’ compensation claim on 6 February 2014 for “anxiety and stress secondary to bullying and harassment at work”. The team leader ceased managing the applicant from 31 January 2014.

Workplace events and demands claimed by the applicant to have contributed to her condition

Following is a summary of the workplace events that the applicant claims contributed to her psychological condition to a significant degree:
·In July 2013, a new team leader (the team leader) was allocated to manage the applicant’s department.
·Thereafter, the applicant claims that she was subject to bullying and harassment from the team leader.
·The team leader sent emails about pre-approved leave and requesting staff to keep within specific times for lunch and tea breaks.
·The applicant was required to send the team leader documents to review. The applicant felt that the team leader sent back marked-up changes that were excessive. The applicant felt anxious and experienced tightness in her chest when she saw the altered document and when she saw emails from the team leader in her inbox.
·On one occasion, the team leader made the applicant feel very incompetent when the team leader suggested the applicant use a different template from that which she had used for years.
·The team leader often looked up from her desk and watched the applicant to see if she was speaking to colleagues, which made the applicant feel extremely anxious and uncomfortable.
·On 6 September 2013, the team leader called a meeting with the applicant which left the applicant feeling targeted, that her colleagues were spying on her, and she cried when she returned to her desk. Thereafter, the applicant avoided leaving her desk as much as possible.
·On 10 September 2013, the team leader called another meeting with the applicant. Around that time, the applicant was receiving emails from the team leader in the morning. She found it incredibly difficult to come to work because she knew she would open an email and it would cause her great anxiety. The team leader had noticed that the applicant had not done any work one day the previous week. The applicant responded that she took a number of telephone calls from her husband because they were having personal issues. The team leader strongly recommended that the applicant consider getting a university degree which may help her with her work. The applicant was shocked because it was not a criterion for her position and felt she had no option but to do a course to keep her job.
·In October 2013, the team leader deferred the applicant’s salary advancement after the applicant returned from holiday, which the applicant found difficult to understand given that the applicant had spent only a short time working for the team leader, having had four weeks leave since the team leader’s arrival. The applicant felt targeted, suffered panic attacks in the morning before entering the workplace, suffered headaches, often started to cry for no apparent reason and was not sleeping at night. The applicant felt that the team leader was changing entire documents the applicant had prepared. The applicant had been doing the same work for seven years and had not been criticised to the extent that the team leader criticised her. She felt singled out and was made to feel incompetent.
·On 29 November 2013, there was an incident when the applicant returned to her desk late after a tea break because she claimed that she was assisting a colleague (the colleague) with a personal issue. The applicant then took flex leave and went home.
·On 30 November 2013, the applicant attended an ATO family Christmas party (the Christmas Party) with two of her children. There was an incident involving the applicant and the wife of the colleague whom the applicant had assisted the previous day.
·On 3 December 2013, the applicant and the colleague received an email from the team leader with the subject line “unauthorised absence”, about the events of 29 November 2013. The team leader required breaks to be pre-approved.
·On or before 19 December 2013, the team leader emailed the applicant about a meeting planned for 23 December 2013, concerning inquiries being made into the incident at the Christmas Party. The meeting occurred on 23 December 2013.
·Following those incidents, the applicant opened emails from the team leader which “made direct threats to” the applicant’s work security. The applicant took time off in various forms of leave because she could not cope with the stress and eventually got a WorkCover Certificate which said that she should have no further contact with the team leader.
·The applicant lodged a workers’ compensation form on 6 February 2014 for the anxiety and stress she suffered secondary to bullying and harassment at work.

The contemporaneous medical evidence

Various documents before the Tribunal show that the applicant has used two different first names and two different family names, in various combinations. There was no suggestion that the various records did not relate to the applicant.
Following is a relevant summary of the contemporaneous medical records before the Tribunal during the period July 2013 to 26 February 2014. The medical records for the relevant period were in three different formats. It appears that the applicant attended three different medical practices in the relevant period.
The first reference to stress is in a record dated 28 August 2013. It says “stress related”. For reasons given below, I give that entry no weight.
The applicant visited a doctor on 9 September 2013 seeking a dietician’s advice.
On 10 October 2013, the following is recorded: “Back from overseas”, “Further surgery/plastics/Breast augmentation”, “Just 3 weeks post op”, “Back off on exercise”, and “Problems in marriage”.
The entry for 28 August 2013 referred to above, appears at the bottom of a page of the records of a particular practice. The next record at that practice was made on 3 November 2013 and includes “1. New pt PMH- nil. DH-nil. NKDA.” That indicates to me that the applicant was a new patient at the practice on that date. The Patient ID Form completed by the applicant on 3 November 2013 clearly shows that the applicant was a new patient on that day (T12 p. 110). I therefore give no weight to the very brief and clearly incomplete 28 August 2013 entry.
The entry on 3 November 2013 also records: “2. Marital break down, busy tax auditer [sic]. Sleep, appetite, mood all affected”, “3. Had a full body lift cosmetic surgery” and “4. No sucide thoughst [sic] or ideas. MSE – low mood, tearful upset. No suicide, abnormal thoughts or lack of insight”. The applicant was prescribed Fluoxetine 20 mg, an anti-depressant, and Inderal 40 mg, which is for heart conditions, including panic attacks.
On 24 November 2013, the record refers to “wt loss of 102 kg”, “husband couldn’t handle it”, “went os for plastic surgery”, “long story”, “wants to discuss therapy”, “how long”, “seems calmer today”, “worried re wt gain c tablets”, “needs more meds”, “asking re mhcpl”, and “will book for this”. Fluoxetine and Inderal were prescribed. I find that “mhcpl” is an abbreviation for Mental Health Care Plan.
The first complaint to a doctor about work causing stress is dated 10 December 2013. The record includes: “stressed at work”, “issues with manager”, “lost 100kg”, “denies any TOSH”, “recent separation”, “discussed work cover and starting compo”, “trying to stay focussed at work but feels getting picked on”, “adv counselling and coping strategies”, “fluoox has helped” and “will see JG for the MHCP”. A medical certificate was issued.
On 12 December 2013, the notes state: “having ++problems with work at the tax office”, “a particular person”, “see care plan”, “psychological issues not only work related”, “off work this week” and “care plan to see tilly”.
On 2 January 2014, the applicant had not seen Tilly “had gap of several hundred dollars”, “saw counsellor thru work”, “ok during xmas break”, “23^rd work meeting –slapped someone cos she slapped her and now there is an investigation”, “anxiety attack yest”, “another one this am”, “discuss” and “make apt with one of psychologists here”. A medical certificate was issued. There was no reference to medications on this occasion.
The next entry on 28 January 2014 was “NSW WorkCover – Initial”, “Dx: Checkup; workcover”. The record refers to work related stress and anxiety “secondary to bullying and harassment by her team leader” and gives further details relating to the work issue. The record states that the applicant “has been commenced on inderal and fluoxetine” and there is a note “continue meds”. The report also states: “Separation october last year”, “not stressed about that” and “no issues with ex-partner”. There is also reference to “WC form”.
The entry made on 2 February 2014 is headed “NSW WorkCover – Progress” and refers only to work issues and records that the applicant has given a workers compensation form to her work. It records that the team leader is away for a month and that the applicant is “not stressed as she knows her manager is not going to be there”.
Later entries refer to work issues or non-psychological health issues. The records for this practice end on 31 March 2014.

Workers’ compensation related documents

The first WorkCover NSW certificate of capacity was issued by a doctor on 28 January 2014. The diagnosis of work related injury/disease was “anxiety and stress secondary to bullying and harassment at work”. The “patient stated date of injury” was “28/08/2013”. It recorded that the “patient was first seen at this practice/hospital for this injury/disease on 10/12/2013”. Further such certificates included the same information.
The applicant stated in her workers’ compensation claim form that the date of injury was 1 November 2013 and that she first sought medical treatment on 3 November 2013.

The expert medical evidence

Dr Bashir provided handwritten answers to questions asked by a rehabilitation consultant in a facsimile sent on 26 February 2014. It is not clear when the doctor replied. There is a stamp “Faxed” and underneath is written a date which may be 25 March 2014. In summary, Dr Bashir stated that the applicant’s anxiety and stress were not impacting on her capacity to work at present. She had been put back to normal duties, changing her team leader “will certainly decrease” her stress and anxiety and she maintains a capacity to fulfil her current duties. She was back to pre-injury duties with the restriction of not working with her old team manager. Her current/future treatment requirements were psychotherapy and medication.
Dr Bashir provided an undated report in response to a reminder letter from Comcare dated 27 March 2014. It was headed “Schedule of questions and information”. It states that the applicant contacted the doctor on 28 January 2014 regarding work related stress and anxiety. The applicant stated that it was an ongoing thing and she tried her best to cope with it and focus on work. The applicant reported that she has been harassed by her team leader constantly on a day to day basis. The applicant seemed scared to go to work and believes that she will have to deal with harassment again. The applicant feels fine on the weekend and Monday mornings are the worst for her. Dr Bashir diagnosed her having anxiety secondary to harassment at work. The applicant denied having any problems of stress in her personal life. She separated from her husband last year and stated that she is happy and not stressed about that at all. Dr Bashir could not find any pre-existing issues to link with the episode. Dr Bashir had referred the applicant to a psychologist and she was attending psychology sessions. His concluding comment is significant: “day to day harassment at work has caused her to develop this anxiety. She denies any stress in her personal life. In that case work related stress is the only case of her current situation”.

The medical records of the practice where Dr Bashir works show that Dr Bashir saw the applicant for the first time on 28 January 2014. References throughout the evidence to that doctor seeing the applicant on occasions before that date are incorrect.
The following is a summary of the report of Suzanne Kairouz, psychologist, printed on 27 November 2014. She attached her clinical notes that showed that the applicant first attended counselling on 14 January 2014, on referral from a general practitioner. She attended five sessions, the last one on 26 March 2014. Ms Kairouz assessed the applicant to be suffering stress and anxiety secondary to workplace harassment. She recorded that the applicant separated from her husband in October 2013, and that “they have a shared custody arrangement and get on well”. Ms Kairouz stated that the applicant felt targeted about keeping exact times for breaks when other staff did not adhere to those rules. She mentioned four specific incidents: the meeting on 6 September 2013, a meeting on 10 September 2013, the deferral of the applicant’s pay increment in October 2013, and the investigation into the altercation between the applicant and the wife of another employee at the Christmas Party on 30 November 2013.
Ms Kairouz wrote in her report that on 10 December 2013, the applicant saw her doctor who diagnosed anxiety and stress secondary to bullying and harassment at work. The applicant’s doctor was the first to note that her anxiety and distressed state seemed like a work-related matter. The applicant took time off on that doctor’s advice. The doctor also prescribed anti-anxiety and anti-depressant medication. Ms Kairouz wrote that the applicant reported a 70% reduction in her anxiety during her period off work and reported getting good feedback from the stand-in team leader. On returning to work on 16 December 2013, the applicant received an email from the team leader about a meeting regarding the Christmas Party incident. The applicant reported having a panic attack and needing help from a work colleague. The applicant reported many symptoms in the lead-up to the meeting. The team leader and another individual agreed to be taken off the investigation upon the applicant’s request, who asserted that she was entitled to natural justice and the team leader and the other person were biased against her in relation to the investigation.
Ms Kairouz attributed percentages totalling 100, to the various aspects of the applicant’s work as the contribution to the applicant’s condition. She rated the non-employment contribution as minimal, “based on (the applicant’s) self-report of her record of events and her reported symptoms”.
Dr Schreiner, clinical and forensic psychologist saw the applicant on 22 July 2015 and wrote a report dated 8 September 2015. He also gave oral evidence before the Tribunal. He did not diagnose the applicant with a mental health condition at the time of assessment. He stated in his report: “She presented only with mild to moderate symptoms related to her previous conditions of Acute Stress Disorder and Generalised Anxiety Disorder”. Dr Schreiner stated that the applicant had previously been diagnosed with Acute Stress Disorder by her treating psychologist, Ms Kairouz, and expressed the opinion that “during the same time she also developed Generalised Anxiety Disorder”. He continued: “[the applicant] revealed severe symptoms between July 2013 and February 2014, that strongly suggest the presence of GAD at the same time” and described those symptoms.
Dr George, consultant psychiatrist, saw the applicant on 13 April 2015 at the respondent’s request. He did not diagnose the applicant as having an ongoing psychiatric disorder at that time. He wrote in his report that it was possible that the applicant may have suffered a major depressive disorder previously, given that she had told him that she had been taking the antidepressant Fluoxetine daily from 2012 onwards, which predates the team leaders’ arrival at work in July 2013. The medical records Dr George reviewed had only shown the applicant’s medications from 28 August 2013. In his report he wrote that “it is hard to establish that (the applicant’s) employment contributed to her psychiatric condition in a significant manner”. He identified several personal issues which could have been significant in relation to her psychiatric condition and which “could certainly affect her reactions to any form of perceived rejection in the workplace at a later date. This could also be significant”. He elaborated upon those psycho-social issues during his oral evidence, which was to the same effect. He commented that the team leader would not know that the applicant was not sufficiently resilient to accept criticism or more exacting standards than there were previously. He commented that people often tend to minimise personal circumstances and maximise workplace events.
Dr George’s evidence was the basis for the submission made by the applicant’s counsel that the applicant was vulnerable in the workplace, her perceptions were important, and provided the events claimed occurred, I should accept her perception.
The applicant denied telling Dr George that she had been taking Fluoxetine since 2012. She said that she took it for the first time in late 2013. She complained about Dr George just addressing a list of questions he had, asking her an inappropriate question about her physical relationship with her husband, not asking her about her work, and only spending 40 to 45 minutes with her. Dr George responded to those criticisms during his oral evidence.
Dr George’s response when asked about the significance to his conclusion of the applicant taking Fluoxetine from 2012, when the evidence showed that it was first prescribed in November 2013, was not responsive to the question. I find that the evidence shows that the applicant was first prescribed Fluoxetine 20 mg on 3 November 2013.
In re-examination, Dr George said that the applicant may have suffered anxiety in the workplace but it was not necessarily work-related. He concluded by saying that work was a factor but not a significant factor.

The applicant’s preliminary issue

Counsel for the applicant argued at the beginning of the hearing that the only issue before the Tribunal was whether the unauthorised absence email dated 3 December 2013 was reasonable administrative action. He relied on the decision in Lees v Comcare (1999) FCA 753 to argue that the Tribunal’s review is of the reviewable decision. He argued that in this case, the Tribunal is therefore confined to that one issue. The first decision-maker had accepted that it was not reasonably open to the employer to rate the applicant “New to role” or to defer her salary increment, but considered that it was reasonably open to the employer to warn her in an email about unauthorised absence and to conclude: “Therefore, the exclusionary provision applies”. The decision-maker disallowed the applicant’s claim under section 14 of the Act.
In the letter seeking review of that decision, the applicant’s representative said that the only issue denying the applicant’s claim was the “unauthorised absence email” and sought reconsideration only on that basis. The delegate accepted that there had been a significant contribution from the applicant’s employment to her claimed condition. The delegate made findings about the contribution of various aspects of the applicant’s work to her condition but found the meetings on 6 and 10 September 2013, the deferral of salary advancement and the unauthorised email was reasonable administrative action. The delegate also found that since the reasonable administrative action exclusion under section 5A(1) applied, they did not have to consider the Christmas Party incident “in detail”. The delegate considered that “the decision dated 13 May 2014 was correct”.
Contrary to counsel’s submission, the delegate’s consideration was not confined to the “unauthorised absence” email of 3 December 2013. In any event, the decision under review in this Tribunal is the decision to disallow the applicant’s claim under section 14 of the Act. The matter raised by the applicant’s counsel was the reason for decision.
In summary, Lees is authority for the proposition that this Tribunal is limited to considering the decision under review, in this case the decision to disallow the claim under section 14 of the Act. That being the decision under review, it would not be open to the Tribunal to consider other claims which had not been the subject of the decision, for example, under sections 24 and 27. Lees is not authority for the proposition that the Tribunal is confined on its review to the reasons for decision at the first or second tier decision level.
I do not accept that I am confined in my consideration of this matter as the applicant’s counsel contended. The applicant’s counsel did not argue that the applicant was for some other reason prejudiced if the Tribunal proceeded to consider the matter more broadly. Given the issues identified in the respondent’s Statement of Issues dated 10 February 2015 and Statement of Issues, Facts and Contentions dated 18 December 2015, such an argument would have been extremely difficult to make.
The applicant’s counsel specified the following as particular events that contributed to the applicant’s acute stress disorder:
·being appraised as “new to role” in September 2013;
·the deferred salary increment in October 2013;
·the unauthorised absence email of 3 December 2013; and
·the investigation into an incident that occurred at the ATO Christmas Party on 30 November 2013.

Consideration of the claims, evidence and findings

I conclude from the reports of Dr Schreiner and Dr George that the applicant was not suffering a psychological condition when she saw those doctors. I find on the evidence before me that she is not suffering from such a condition at the time of this decision.
The applicant’s condition has been variously described by Dr Bashir, Ms Kairouz, and Drs George and Schreiner, as set out above. It is not necessary for the purposes of this decision to determine when she ceased suffering from the psychological condition.
For the reasons that follow, on the evidence before me I am not satisfied that the applicant’s work contributed to the applicant’s psychological condition to a significant degree. I do not accept the applicant’s claim that her anxiety and stress were secondary to bullying and harassment at work from the team leader.
As set out above, the applicant visited the Warrawong Accident and Medical Centre twice in November 2013 complaining of symptoms, without mentioning that work was a cause of those symptoms. The record that she was a busy “tax auditer [sic]” does not reflect a complaint of being harassed and bullied in her workplace. For the reasons that follow, I do not accept that the applicant’s accounts associating her psychological condition with harassment and bullying by the team leader at work are reliable. It follows that I do not accept the medical evidence that relies on her claims linking her psychological condition with harassment and bullying by the team leader at work are reliable.
The first complaint the applicant made to a doctor associating her symptoms with conditions at her workplace was made on 10 December 2013. She first complained to a doctor about symptoms for which she was prescribed Fluoxetine and Inderal on 3 November 2013. It is necessary to consider in detail what had happened in the applicant’s life, in addition to her complaints about her treatment at work summarised above, leading up to 3 November 2013 and thereafter until 10 December 2013.
The applicant went on holidays from 17 September 2013 until 8 October 2013. She travelled overseas and had cosmetic surgery, which she described as minor surgery relating to the body lift surgery she had undergone in 2012. When she visited the doctor two days after she returned from holidays, on 10 October 2013, her doctor recorded “Problems in marriage”.
The applicant said the following in her statement about the Christmas Party incident sent to Mr Parkinson on 6 January 2014. The applicant and the colleague’s wife had a close personal relationship. Their families spent Christmas, Easter, and birthdays together. They spent two weeks together overseas in October 2013. “Our friendship has had some serious strains and pressures, which I believe had been deliberately and intentionally instigated and fuelled constantly by an ATO employee [the ATO employee] … who has worked in close proximately [sic]” to the applicant and her colleague. The applicant and her colleague are good friends and he has been a “fantastic mentor” for a few years.
The applicant goes on in that statement to describe in detail the ATO employee’s involvement in the lives of the applicant, the colleague and his wife, including that the ATO employee suggested to the wife of the colleague that he and the applicant were having an affair. “Even though this was so far from the truth it caused major damage and distrust” from both the colleague’s wife and the applicant’s husband. The applicant considered the ATO employee’s actions to be “bullying and harassment” and she claimed that she took her complaints to her team leaders after the ATO moved offices in November 2013.
The applicant continued: “[The ATO employee’s] reporting was so incessant that my marriage became extremely pressured to the point on October 15 2013 I walked out of my 19 year marriage and moved out. Currently waiting to file for a divorce”.
The ATO employee is not the team leader.
The applicant visited a doctor on 3 and 24 November 2013, as set out above. Based on those medical records, I find that the applicant was suffering from the psychological condition from 3 November 2013 when she was first prescribed Fluoxetine and Inderal. Despite all the events she has complained of occurring at her workplace, summarised above and from Ms Kairouz’s statement, the applicant did not relate her symptoms to bullying or harassment in the workplace on those occasions. She did say she was a busy tax auditor.
On 29 November 2013 there was the incident when the applicant returned to her desk late after a tea break because she claimed that she was assisting the colleague with a personal issue and then took flex leave approved by the team leader and went home.
The next day, 30 November 2013, the applicant attended the Christmas Party. The team leader was not present. There are various accounts of what happened. The applicant’s account of the incident sent to Mr Parkinson on 6 January 2014 included the following. Her son was a close friend of the colleague’s son. Her son spent four hours looking for the colleague’s son, was really excited when the colleague, his wife and son arrived and tried to figure out why he was not allowed to talk to the colleague’s son, and why the colleague’s son was clearly not interested in hanging out with him. The applicant’s son was upset. That was difficult for the applicant to watch and explain. The colleague, his wife and son did not speak to the applicant. The wife would look in the applicant’s direction and frown. “It was awful”. The applicant said that when she was about to leave, she spoke to her colleague and then commented to the wife “… it would have been nice if you could of said hello to me”, and walked away. The colleague’s wife was yelling a lot. The applicant said that she understood that “as both her and [the applicant] in the last 12 months had been through so much. Remembering not only [the applicant] had just left [her] husband but she had also separated from [the colleague]”. The applicant said that she had to walk past the colleague’s wife to leave and heard her say “stay out of my life, stay out of my marriage”. The applicant put down her bags and replied “I’m not in your life and not in your marriage, what you experience is what you choose to believe from others”. The colleague’s wife slapped the applicant and the applicant slapped her back automatically, out of shock and in defence. The colleague’s wife continued yelling and hit the applicant at least another four times. The applicant claimed that she did not hit back, and was trying to hold the colleague’s wife’s arms, who tripped as she walked back, got up and sat on a wall. The applicant walked away. The applicant was shaking and crying.
The applicant said that she got the attention of staff of the facility, who came over. Nearby police asked both the applicant and the colleague’s wife a number of questions about the incident. “They didn’t take any statements because they said it was a waste of time. The only witnesses were family members”. The applicant claimed that the colleague’s wife took full responsibility and the applicant was taken to first aid.
The applicant went to work on Monday 2 December 2013.
On Tuesday 3 December 2013 at 10:10 am, the team leader sent the applicant the “unauthorised absence” email regarding 29 November 2013, which “was not pre-approved by [the team leader]”. The email included a hyperlink to the team meeting on 16 July 2013 and an agenda item about the approved times for breaks for morning and afternoon tea and lunch. It stated that “permission from the manager is required if staff are leaving the office during any paid break” apart from those times, and “excessive breaks are issues which may be considered in breach of the ATO code of conduct and may lead to disciplinary action”. The email then said: “Going forward, any future absences from the office which are not pre-approved by me …will be classed as an unauthorised absence”. The email set out the relevant section of the ATO enterprise agreement about unauthorised absence.
The applicant replied at 2:19 pm. Her reply was factual. She referred to her conversation with the team leader on 29 November 2013, and that she had asked “for flex from 3.15 pm and leave for the rest of the day. I had very good reason for this but this is personal and I like to keep it that way unless I need to talk about it”. The team leader replied at 4:51 pm: “All I am requesting is that you seek pre-approval for all paid leave (which includes flex). If you have a personal issue to deal with, by all means I am flexible and will allow you flex leave if required, but I do need to be informed before the leave is taken”. The team leader repeated the need to confine morning and afternoon tea breaks to the 15 minutes she had set out previously.” That is the extent of the email exchange on the subject.
The applicant’s attendance record shows that she had requested and been granted a longer lunch on 3 December 2013 but did not take it.
The applicant went to work on Wednesday 4 December and Thursday 5 December 2013. She took a flex day on Friday 6 December 2013. She went to work on the morning of Monday 9 December 2013 but in the afternoon she took “Pers/Carers with Doc”. A note about that day says: “Carers (NAME). Unable to get into doctors”. I understand the person named is the applicant’s son.
The next communication before the Tribunal between the applicant and the team leader is an email on 10 December 2013 at 8:03 am, when the applicant advised that she had a doctor’s appointment for herself and her son, which was “the first she could get when she called yesterday”. “I’ll be here until about 11.30 am. The leave will be with a doctors certificate so would you like me to input this when I return?” The team leader replied at 8:28 am, “That’s fine. You can input it tomorrow through ESS”.
The applicant left work at 11:00 am that morning. The note about that day on the attendance record says: “1/2 day at work attended to meet with (the team leader) regarding Div7a case”. The applicant did not attend work for the rest of that week. I understand from her attendance record and the medical record for 10 December 2013, that she was off sick with a medical certificate for those days. The attendance record shows that she went to work on Monday 16 to Wednesday 18 December 2013.

On Thursday 19 December 2013 at 9:17 am, the team leader sent the applicant an invitation to attend a meeting about the Christmas Party incident at 10:00 am on Monday 23 December 2013. At 11:28 am on the same day, the applicant responded requesting a detailed agenda. She also wrote a diary note about her distress upon receiving the email and surrounding events. (Annexure H to her “Comcare statement” attached to an email dated 5 March 2014 (the Comcare statement)). The diary note included the comment “I was so scared because of what had happened to my work colleague”. The team leader responded at 1:51 pm on the same day, setting out information about the purpose of the meeting, including information about the process “about to be commenced”. The email advised that the ATO was “currently making enquiries” into the Christmas Party incident, that an ATO officer had arranged for a preliminary investigation, which included contacting the facility management and police, that the team leader was making arrangements to get copies of statements gathered during the preliminary investigation and video footage “if available”. The team leader also said that she was “working with ATO People to prepare a report to the authorised person to decide how the matter should be dealt with”. There were different processes that might be followed, but possible outcomes included termination of employment. Clearly, the potential consequences for the applicant were very serious.
On Monday 23 December 2013 at 9:33 am, the applicant emailed the team leader and the team leader’s boss, who was also to attend the meeting, requesting that they remove themselves from the investigation because procedural fairness and natural justice required an independent investigation free from bias. She said that they both knew her personally. The meeting was held. The applicant had a support person and a union representative participated by telephone. The applicant took leave for the rest of the day.
I do not accept that it is consistent with the applicant’s claims about the effect on her of the 3 December 2013 email, that she was able to attend work for the following two days, and then the mornings of Monday 9 and Tuesday 10 December 2013 and did not attend a doctor until the afternoon of Tuesday 10 December 2013. The 3 December 2013 email was not a matter that she mentioned specifically to the psychologist, Ms Kairouz. I have taken into account the applicant’s evidence about why she did not specifically mention that email, but did not find it a satisfactory explanation.
It is not in dispute that the team leader granted the applicant flex leave after she returned late to her desk on 29 November 2013. On its face, the email is clearly advising what procedures should be followed in future. The applicant was not punished for returning late to her desk on 29 November 2013. I accept that the applicant’s perception is important in relation to this claim, but I do not accept that she was upset by the email as she claimed. Her actual behaviour is consistent with that finding.
I do not accept that the applicant believed when she wrote her Comcare statement that the colleague was transferred out of the team because of his response to the 3 December 2013 email as she claimed in that statement. It is clear on the evidence, discussed below, that he was moved because of the Christmas Party incident and that was the applicant’s understanding at the time she wrote the Comcare statement.
The reason the applicant provided in her attendance record for taking leave on the afternoon of Monday 9 December 2013 was her son’s illness. There is no mention in the record for that day that she was ill. She attended a meeting with the team leader the following morning before taking her son and herself to the doctor. There is no suggestion that that meeting contributed to her condition. If she had been as adversely affected by the 3 December 2013 email and all the other circumstances she claimed had occurred before that, she could have attended a doctor and got a medical certificate to avoid going to work, including to avoid attending the meeting on the morning of 10 December 2013.
In the Comcare statement, the applicant referred to the email she sent on the morning of the meeting about the Christmas Party incident, held on 23 December 2013 and stated: “[the team leader and the team leader’s boss] had already transferred my colleague out of the team so their decision was already made”. Later in the statement she talks about the team leader coming to her desk and speaking to her after the meeting. The applicant said: “My colleague “X” has also needed to be seen by a doctor and medicated for how [the team leader and the team leader’s boss] treated him. This affects everyone, other staff members are saying things like ‘who is next’”.
The team leader stated in the report of suspected misconduct in relation to the Christmas Party incident, dated 14 January 2014, that the team leader’s boss and the team leader met with the colleague on 9 December 2013 to discuss a transfer to another business area “given both [the applicant and the colleague] were in the same team”. During the meeting the colleague gave his version of what happened at the Christmas Party. The colleague commenced a six month transfer on 6 January 2014.
Given that the colleague and the applicant worked in the same team, were very close friends and were both at work for some time on 9 December 2013, I find that the applicant was aware of the meeting and its outcome on 9 December 2013. I find that as of that date, she was very concerned that there would be some possibly serious consequence for her employment as a result of the Christmas Party incident. I find that that was the reason she went to the doctor on the afternoon of 10 December 2013. I do not accept her assertion in the Comcare statement about receiving the email on 19 December 2013: “I was shocked as up to this point I hadn’t heard anything at all. [The team leader] had been silent and not told me anything. She just sent this e-mail out of the blue 3 weeks after the incident”. I accept that the team leader had not spoken to her about the Christmas Party incident, but I do not accept that she was shocked that some inquiry was to be made into that incident.
That she was expecting some consequence as a result of the Christmas Party incident is supported by the applicant’s evidence in the Comcare statement that she contacted ATO concern on Wednesday 11 December and on Friday 13 December 2013 had a lengthy discussion with ‘Bernadette’. In Annexure H to that statement the applicant said that the week before receiving the email on 19 December 2013, she had spoken to Ms Faganello from the CPSU whom she contacted again when she received the email. Around this time, she also spoke to Ms Johnson seeking clarification of what events would incur the use of unauthorised absence. I do not accept that the applicant’s reaching out for support to those people and organisations was because of harassment and bullying from her team leader. I find that she was preparing to defend herself in relation to the Christmas Party incident.
The Patient Medical History for the practice the applicant attended from 3 November 2013 to 3 April 2014 shows that she was prescribed Fluoxetine 20 mg Qty: 28 to be taken once a day, on only two occasions: 3 November and 24 November 2013. If she had taken them as prescribed, her prescriptions would have run out on 29 December 2013. She was prescribed Inderal 40 mg Qty: 100 on 3 November 2013 and two prescriptions for the same quantity and strength were given to her on 24 November 2013. One Inderal tablet was to be taken twice a day. If taken as prescribed, she would have finished the Inderal tablets on 2 January 2014. The medical record for 2 January 2014 does not mention medications but does mention “anxiety attack yest” and “another one this am”. That is the first contemporaneous report of such a symptom to a doctor. Even if the applicant had not taken any medication during the Christmas break because she was “ok”, it would have been timely for a prescription to have been requested on that occasion. That is to be contrasted with the note on 23 November which said “needs more meds”.
The record of 28 January 2014 states that the applicant has been commenced on Inderal and Fluoxetine and “continue meds” is noted. Similarly, the 2 February 2014 record says “continued meds”. The record of 26 February 2014 states “compliant with meds”.
Based on the contemporaneous records, I do not accept that the applicant had the medications Fluoxetine and Inderal available to her to take for the reasons given above from about 2 January 2014. I do not accept that she was taking the medications as recorded in the medical records of 28 January, and 2 and 26 February 2014. I find that she was giving the doctor information to the effect that she was taking those medications which was not correct.
In her Comcare statement, the applicant claimed that the doctor put her on anti-depressants and anti-anxiety tablets on 10 December 2013 and told her to start taking them immediately. That is not correct. They had been prescribed on 3 and 24 November 2013 as set out above. No medication for her condition was prescribed on 10 December 2013 or thereafter.
The applicant told Dr Schreiner that her panic attacks started around August 2013. At paragraph 55 of the applicant’s statement dated 24 November 2015, the applicant said that after the deferred salary advancement in October 2013: “I continued to start to suffer panic attacks in the mornings before entering my workplace. I started to suffer headaches. I often started crying for no apparent reason and I was not sleeping at night”. At the hearing, she said that the panic attacks began after the team leader arrived and the applicant was getting lots of emails and corrections, it was not from day one, and she did not recall when they began.
The contemporaneous medical evidence does not support the applicant’s claim that she suffered panic attacks in August 2013 or October 2013 or at any other time before the record of 2 January 2014. At the hearing, the applicant claimed that she did not know what they were called and that is why they are not mentioned in the medical records.
I do not accept that it is necessary to be able to apply a medical term to symptoms before they would be recorded. If the applicant had suffered the symptoms of a panic attack as she has described them in a number of her statements and at the hearing, as happening before work, and before and after meetings with the team leader, I would have expected to see those symptoms recorded in relation to those work activities. There is no record of her claiming to have symptoms of a panic attack in the medical records until 2 January 2014 when she claims to have suffered two panic attacks.
The earliest evidence of symptoms consistent with a panic attack as the applicant described them, was on 19 December 2013 when the applicant received the email. In the Comcare statement and Annexure H (the 19 December 2013 diary note), the applicant said that she found it very difficult to breathe, was crying, and could not stand up. In relation to this incident, the applicant also said: “I was already not sleeping, taking medications as prescribed by the doctor, having so many anxiety attacks at work it was really taking everything out of me”.
The applicant stated the following in the 19 December 2013 diary note.
She received the email at 9:17 am. Although she was “extremely distressed” she went to the quiet room and called a union representative, whom she had spoken to the week before and told her about the scheduled meeting. The applicant was crying. The union representative told the applicant that she could have union representation at the meeting. The applicant responded that “our Union Rep was on leave”. The union representative said that someone could “dial in”, and considering that the applicant’s actions were a reaction to something, (the ATO) could not do much to the applicant. The applicant responded that “they managed to move my work colleague out of the section by just having a meeting like that and I was really scared”. The union representative said that she should not be too concerned, and in a previous call had said with no history whatsoever and a good clean record of a working history, the most they could do was issue a reprimand.
The applicant replied that she was so scared that they were going to move her, or try and transfer her to Sydney or worse. The union representative said that she did not think that any of that would happen, that they probably just wanted to discuss the issues, and if they tried to transfer the applicant “the Union would be jumping up and down in support”. The union representative told the applicant the name of the person who would be dialling in. They also discussed the leave available to the applicant.
The applicant wrote that she returned to her desk “where I got more and more distressed. I was crying and it was getting a little loud that people could hear”. A work colleague came to ask the applicant a question. The applicant “broke down grabbed tissues and ran away down the hallway towards the toilet. I couldn’t breathe properly”. A colleague called Dakota followed her trying to “settle” the applicant, followed by the team leader who asked Dakota to call a first aid officer. Dakota left, the applicant “was still crying and struggling to breathe”, and when the team leader asked how she was, the applicant said “you are the problem”. The team leader responded that she was just the messenger doing what she was instructed to do. The applicant asked the team leader to leave “as she was distressing [her] more”. The applicant wrote that she “was so scared” because of what had happened to the colleague. Dakota returned. The applicant was “close to sitting on the ground. [She] still couldn’t breathe”. Another colleague, Jenny, asked if the applicant wanted to go to the quiet room. Dakota helped the applicant to go there. Jenny asked if she wanted to discuss the issue. The applicant told her what was wrong and Jenny started to explain the ATO’s position, and what might happen to the applicant. The first aid officer arrived and sat with them while the applicant “was beginning to recover her breathing”.
The applicant then wrote: “At 10.15 I came back to my desk and sent the team leader and email saying I would continue with chairing the meeting. She said I didn’t have to attend but it was up to me. I continued and chaired the meeting as was schedule” (sic).
That Dakota and the team leader and another work colleague tried to assist her is supported by the evidence from each of those people.
I do not accept that the applicant’s distress after receiving the 19 December 2013 email was as serious as she claimed or as appeared to those who came to assist her. I do not accept that her claimed degree of distress was consistent with having the capacity to contact the union representative with whom she had a detailed and rational conversation as set out above, and which she was able to record later in the day. Although it is not clear how long that conversation lasted, it was not brief given its content.
The advice from the union representative was reassuring and very supportive of the applicant, but according to the applicant, her distress increased when she returned to her desk, drawing the attention of colleagues. In the Comcare statement she said that she kept reading the email when she returned to her desk, started to find it very difficult to breathe, was crying and had to get away from her desk.
I find that the telephone call to the union representative and events following the applicant’s return to her desk after the telephone call, extended over a lengthy period of time. I do not accept that it is consistent with the account of the applicant’s distress given by her, Dakota and the team leader, that at 10:15 am when the applicant returned to her desk, less than one hour after receiving the distressing email, she would have been sufficiently recovered and composed to decide to and then advise the team leader that she would chair the scheduled meeting and then did so. Furthermore, the team leader had advised her that she did not have to attend the meeting.
I accept that the applicant used the Employee Assistance Program (EAP) in 2013 as she claimed. That is consistent with the medical record of 2 January 2014: “saw counsellor thru work”. In the 19 December 2013 diary note, the applicant wrote: “I have an EAP meeting at 2.30 pm today and will discuss this during my meeting as well”. I find based on that note that the EAP meeting had been scheduled before receiving the email that morning. It is not apparent from the evidence how many EAP sessions the applicant attended or when they occurred or what the applicant said at those meetings, apart from the one mentioned in the diary note. I find on the evidence, that the applicant accessed the EAP after 10 December 2013.
I do not accept that the applicant was having anxiety or panic attacks related to her work prior to her receiving the email on 19 December 2013 and I do not accept that she was as upset by that email as she claimed for the reasons given above.
For the above reasons, I do not accept that the applicant’s evidence is reliable. I do not accept that the applicant’s reports to doctors from 10 December 2013 were reliable, as to her symptoms, her medications or the adverse impact her work was having on her. From 9 December 2013 the applicant was taking every step she could to prevent an adverse outcome from the investigation into the Christmas Party incident. I accept that that would have been very stressful, but I do not accept that she was reacting as she claimed. I do not accept that she was blaming the team leader for the investigation as she claimed. I agree with the applicant’s self-assessment that she is a fairly resilient person.
For the above reasons, I do not accept that the applicant’s employment contributed to her psychological condition to a significant degree.
The decision under review made on 19 September 2014 which affirmed the decision made on 13 May 2014 denying the applicant’s claim for compensation, is affirmed.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............[sgd]...................................................

Associate

Dated 27 September 2016

Date(s) of hearing	17-19 May 2016
Counsel for the Applicant	Mr J Wilson
Solicitors for the Applicant	RMB Lawyers
Counsel for the Respondent	Ms K Blackford Slack
Solicitors for the Respondent	Sparke Helmore

[2016] AATA 750

27 September 2016

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Judicial Review

Natural Justice

Procedural Fairness