Lever and Comcare
[2006] AATA 777
•11 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 777
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1163
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD LEVER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member, and Dr John Campbell, Member Date11 September 2006
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – work related stress claimed – s4 and s14 Safety Rehabilitation and Compensation Act 1988 – failure to obtain promotion – no injury under s 4 – decision under review affirmed.
LEGISLATION
Ss 4 & 14 Safety Rehabilitation and Compensation Act 1988
CASELAW
Comcare v Mooi (1996) 69 FCR 439
Hart v Comcare (2005) 145 FCR 29
Trewin v Comcare (1998) 84 FCR 171REASONS FOR DECISION
Introduction
1. Mr Ronald Lever began work at the Australian Nuclear Science and Technology Organisation (ANSTO) when he was a student in 1998. At the beginning of 1999 he became a casual employee, and from 28 April 1999 he became an Information Technology (IT) System Administrator.
2. In these proceedings he seeks the review of a decision refusing his claim for compensation for work related stress which occurred on 1 November and/or 31 December 2004.
Issues
3. Given the cases put by the parties, in order to determine whether Comcare is liable to pay compensation to Mr Lever pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988, we have to answer the following questions:
(a) Did Mr Lever suffer from a recognised mental illness or disorder, or was he in a condition that was outside the boundaries of normal mental functioning and behaviour on 1 November and/or 31 December 2004?
During the course of the case, Comcare conceded that Mr Lever was suffering from an adjustment disorder on 31 December 2004 but not on 1 November 2004.
(b) If he suffered a condition on 1 November, did it and/or the adjustment disorder he had on 31 December 2004 arise out of or in the course of his employment?
(c) If the answer to either or both questions is yes, was it a result of reasonable disciplinary action taken against him or his failure to obtain a promotion, transfer or benefit in connection with his employment, in which case Comcare is not liable.
Mr Lever’s claim for compensation
4. Mr Lever signed his workers compensation claim on 1 February 2005. The diagnosed conditions he claimed were hypertension and work related stress. Hypertension is not being pursued in these proceedings. Mr Lever specified 3 November 2004 as the date of injury or the first time he noticed the injury or illness but stated he first sought medical assistance on 1 November 2004. The following questions and answers are of assistance [PT12]:
Question 20: What started the chain of events that led to your injury or illness? Continual victimisation & harassment by line management and industrial relations advisor Mr Davies.
Question 21: What action, exposure or event happened to cause your injury or illness? Removal of overtime, exclusion, isolation in the work place, active undermining of my work as a union delegate, accusation of an alleged breach of duty, invasion of privacy read all my e-mails without my consent or authority. General abuse over an extended period of time.
Question 22: What actually injured you, or made you ill? A number of management staff have perpetrated malicious & vexatious actions causing my illness, stress, insomnia, headache, migraines, depression. It has also affected my wife & children
Question 24: Was someone else responsible for your injury or illness? Yes
What is their name? ANSTO culture
5. Mr Lever listed Mr Crakanthorp, his supervisor, as a witness to his injury.
6. In Part 2 of the form which was completed by Mr Crakanthorp, the following appears:
Question 4: When the injury or illness happened, what was the employee’s job title and main duties?
Employee’s job title: System administrator/Union delegate
Employee’s main duties: Union representation and some IT work.
Question 5: When the injury or illness happened, what was the employee’s classification level? Band 5
7. In answer to a question about Mr Lever’s normal weekly earnings, his overtime was listed as “nil”.
Staffing
8. It is necessary to know the identity and positions of various staff members of ANSTO to understand the evidence. Dr Smith was the Executive Director. The head of the division where Mr Lever worked was relevantly Mr Cullen. Mr Lever’s immediate supervisor was Mr Crakanthorp, who was under the direction of Mr Tuckwell. Mr Ryan was the Agency Security Adviser. Mr Davies was the industrial relations adviser. Mr Tuckwell, Mr Ryan and Mr Davies were responsible to Mr Cullen.
THE EVIDENCE
9. The evidence about the activities and incidents in the workplace that gave rise to conflict between Mr Lever and ANSTO management was extensive. Those activities and incidents can be conveniently identified as follows, although some are inter-related:
· the classification issue,
· Mr Lever’s union activities,
· the removal of overtime,
· the pay scale dispute,
· representation of a fellow employee,
· the 1 November e-mail from Mr Cullen,
· the alleged breach of duty against Mr Lever, and
· the e-mail copying incident.
Following is a summary of the relevant evidence.
The Classification Issue
10. A matter of some significance is the “classification issue”. Mr Crakanthorp became Mr Lever’s supervisor in 2000. He left ANSTO in May 2005. In 2000 Dr Doherty was the director of the IT group in which the two men worked.
11. Mr Crakanthorp’s evidence about the structure of performance assessments and promotions during 2000 to 2004 is to a large extent is not in dispute. To the extent that there was any dispute, Mr Lever’s understanding is referred to.
12. The 2000 Enterprise Agreement provided for a process of an employee preparing an objectives setting form at the beginning of an assessment period of 6 or 12 months. If the employee was aiming for a promotion at the end that period, the objectives had to be set at the higher classification level in that form. A performance assessment was to be conducted at the end of the period. Consequently, the employee could be promoted to a higher classification level or be given a salary increment within the current classification.
13. Mr Lever said that during 1999 and 2000 he identified a number of IT issues that could be changed to benefit ANSTO. He proposed certain projects, and was engaged to carry them out over a period of two or three years. He considered that the work he carried out was at a considerably higher classification than his then classification.
14. In December 2000 he said he was reclassified to “Band 5”, but he believed that he should have had a considerably higher reclassification. He said that an objective benchmarking of the duties he was performing was necessary but did not occur. Mr Crakanthorp said that in 2000 Mr Lever was promoted to a Professional Officer (PO) 2 from his then PO 1 position which he thought “was pretty rapid” given that Mr Lever only graduated with an IT degree in 1999.
15. Mr Crakanthorp said that Dr Doherty and he tried to meet with Mr Lever to set his objectives at the commencement of the 2000/2001 and 2001/2002 review periods. He said that the objectives were agreed but not the level. He thought a couple of times over the following years that he had Mr Lever’s agreement about objectives but they were not signed off. They never agreed on a classification level because that was in dispute between Mr Lever and management. Mr Lever wanted a promotion in the 2000/2001 review period to Senior Professional Officer Grade 1 (SPO 1), which would have by-passed many incremental steps. He said that Mr Lever never accepted that he and Dr Doherty did not think he should be promoted. Mr Lever refused to sign off the assessment forms for the periods 2000/2001 and 2000/2002 because he believed that his 2000/2001 objectives were SPO1 level and therefore he should be promoted from that time and paid at that level. Dr Doherty finished Mr Lever’s performance assessments for both the previous assessment periods on 2 August 2002. He recommended one salary increment from 1 July 2001 and another salary increment in respect of 2001/2002. Dr Doherty and Mr Crakanthorp met with Mr Lever a couple of times in about August 2002 because he was disputing the decision not to promote him. An explanation was given to Mr Lever which he did not accept.
16. An industrial dispute arose between Mr Lever and ANSTO, in which he was represented by the Community and Public Sector Union (“the CPSU”). The first step was an unsuccessful mediation session to be held on 6 November 2002.
17. In 2002 a new Enterprise Agreement was entered into which began on 10 January 2003 according to Mr Davies (“the EA”). There was also a restructure which had the consequence that Mr Lever’s position was designated Band 5. In about August 2002, an officer from the Human Resources (HR) area of ANSTO gave a talk to the group where Mr Lever and Mr Crakanthorp worked, about the translation from the old to new band structure. Mr Crakanthorp was away but became aware that many staff got the impression that if they had already been working at higher duties, they would go up one increment in the new system, although HR denied that that was intended.
18. On 23 December 2002 Mr Lever wrote to the then head of ANSTO, Professor Helen Garnett seeking an interview with her about his dispute with Dr Doherty concerning his classification. On 8 January 2003 Mr Lever requested a peer review. A Ms Wolfe wrote to Mr Davies on 16 April 2003 and said “After discussion with [Mr Lever], we have realised that a Peer Review is not the appropriate forum for resolving this matter”. She thought that from material she had reviewed that a Reference Panel was the only avenue.
19. Mr Lever lodged a grievance on 23 April 2003. On 17 July 2003 a solicitor representing Mr Lever wrote to Professor Garnett requesting the terms of an agreement between ANSTO and Mr Lever be complied with, that is, that Mr Lever be promoted in the financial year 2001-2002 to Band 6. It also sought payment of losses arising from the breach of contract. The letter referred to Mr Lever’s having been asked “to sign Career Advancement System form for 2001-2002 and 2002-2003 years but the employer’s document in its present form only services to perpetuate the eror”.
20. Mr Lever signed the forms for the assessment periods 2000/2001 and 2001/2002 on 29 August 2003. He rejected Dr Doherty’s decisions and stated that objective evaluation confirmed the work he had performed was of a higher classification. Mr Lever had stated on the form that his signing the documents was “NOT an acceptance of an offer notwithstanding the fact that there may be back pay involved. I am following the Dispute Resolution provisions and have appealed this decision, please advise the date of my reference panel”.
21. On 12 September 2003 Mr Davies advised Mr Lever in writing that management would arrange a Role Analysis of his current role and that the reference panel would be scheduled when that had been done.. Mr Lever responded in writing that a Role Analysis was contrary to discussions with Mr Cullen and would serve no useful purpose in dealing with past issues and should not be tied to the Reference Panel.
22. According to Mr Davies, ANSTO decided to “close off” Mr Lever’s outstanding assessments for the 2002/2003 year and pay him the outstanding increments he was owed, which was subsequently done. Mr Cullen’s evidence was that this was instigated by him and he asked Mr Davies to expedite the Reference Panel in an attempt to resolve the issue of promotion.
23. On 30 October 2003 an HR officer sent Mr Davies a Role Evaluation of Mr Lever based on an interview with Mr Crakanthorp.
24. On 11 November 2003 Mr Lever e-mailed Mr Davies and Ms Wolfe advising he did not want anyone on the Reference Panel from HR because “Human Resources have been involved in my case from the start and I feel that anyone from HR would be inappropriate.” He also thought it inappropriate that Mr Davies be the advocate for management because he was also a witness. He sought further information and expressed the view that witnesses should be called in one at a time. There was further e-mail correspondence between Mr Lever and Mr Davies about witnesses, information required, procedures and the like before the Reference Panel convened. Mr Lever put in a lengthy written submission. Mr Crakanthorp’s evidence was that Mr Lever spent weeks preparing for this Reference Panel.
25. The Reference Panel was to convene on 4 December 2003. It comprised three people: an independent person and a representative of each of the CPSU and management. Mr Lever said it refused to convene, but in cross-examination did not disagree that the presiding person said that it could not proceed because it would come down to a dispute between what Mr Lever said and what ANSTO said. Dr Doherty had left ANSTO by that time.
26. An unsigned document dated 5 December 2003 headed “Reference Panel – Ron Lever – Decision” recorded that his grievance required consideration of decisions taken over 3 to 4 years, that the evidence required testing under oath, that it did not have the authority to adduce the necessary evidence and recommended that the matter be referred to the Australian Industrial Relations Commission (AIRC). The alternative was to put the past aside and consider the current work requirement but Mr Lever was not inclined to do that.
27. In cross-examination, in response to the suggestion that an alternative to the reference panels would have been to put the past aside and discuss the present situation which he was not inclined to do, Mr Lever said that that was not giving consideration to the past issue, and “they started removing higher duties from me … they limited what they would assess … only assessing the job I had applied for”.
28. In response to the suggestion that Mr Davies had proposed settling on the basis that he would be a level 6 onwards, Mr Lever said that Level 6 was not offered, rather Mr Davies said that he would allow objectives for 2003 to be set to band 6. He said that he had objectives for Band 6 and even 7 from HR, but Mr Cullen denied the offer. An exchange of e-mails between Mr Lever and Mr Cullen supports Mr Lever’s evidence in relation to the offer made by Mr Davies. According to the e-mail Mr Cullen wrote: “I don’t recall making such an offer…for the record.” He was happy for the process to continue.
29. Mr Tuckwell said that in late 2003 early 2004, he took over responsibility for supervising Mr Lever from Mr Crakanthorp who had experienced difficulties getting Mr Lever to agree to performance objectives for 2003/2004 which should have been set by the end of July 2003. Mr Tuckwell described five occasions where Mr Lever failed to turn up for a meeting for a discussion about those objectives for various reasons. By the end of 2004 Mr Lever was the only staff member in the section who did not have a set of performance objectives.
30. Mr Tuckwell said that Mr Lever would have failed a performance assessment for 2003/2004 based on previous objectives, and he would not have given him an incremental increase.
31. In May 2004 a meeting was arranged to discuss Mr Lever’s performance. Mr Lever brought along a union organiser with him because he wanted to include in his plan some performance objectives related to his work as a union representative. Mr Tuckwell thought all three agreed that that was unrealistic because his union activities could only be assessed by an external party working for the unions. Mr Tuckwell also thought it was agreed that Mr Lever would record his time spent on union delegate activities for 3 months and provide to Mr Tuckwell a break up of his time spent on those activities and on his substantive work. Mr Tuckwell said this was so he could assess Mr Lever’s performance based on the time actually spent on his substantive duties. He said that only a fortnight’s information was provided by Mr Lever which showed 12% related to union duties, about which Mr Tuckwell had a number of reservations, including that he had seen Mr Lever involved in union activities during the period which was not recorded.
32. Mr Tuckwell said that Mr Lever’s poor performance and his availability/access at his workspace were causing problems with getting other members of staff in his team to attend the workplace and to let supervisors know of their whereabouts, as well as having other staff cover Mr Lever’s duties. Mr Tuckwell also said that he was getting bad feedback from Mr Lever’s internal IT customers for a number of reasons, including his unavailability. Mr Tuckwell had to remove Mr Lever from his customer assistance duties.
33. Mr Lever did not agree that he did not keep records of his time spent on union activities or that his customers were not satisfied with his work or that he he had been removed from customer assistance duties.
34. On 12 December 2004 Mr Tuckwell wrote to Mr Lever directing him to complete his stage 3 assessment for 2003/2004 and revised objectives for the 2004/2005 review period by close of business on 17 December 2004.
35. Mr Lever emphasised in the course of his evidence that he took no further steps to resolve the classification dispute after the Reference Panel, but said: “in December 2004, the CPSU proposed a process to ANSTO for resolving three outstanding classification disputes … (including mine)”. The proposal is set out in a letter wrongly dated 15 December 2003 (actually 2004) from an Assistant Secretary of the CPSU located in the National Secretariat in Melbourne, to the Executive Director of ANSTO. It mentions that two of the cases had been referred to the AIRC.
36. Mr Davies responded to the CPSU’s letter on 25 January 2005. He stated in that letter that an independent role analysis done before the 2003 reference panel hearing found that Mr Lever’s role was correctly classified at Band 5.
37. In cross-examination, Mr Lever agreed that he has commenced Federal Court action in relation to his classification dispute but denied thinking about it in 2004, asserting that it was dealt with by the CPSU committee and he was involved as a member and President of the CPSU. There were two other members involved. He said that he prepared a summary of his situation but did not prepare those of the other two employees involved. He said that it was not an issue in 2004. If it had been it would have been taken to the Federal Court or the AIRC.
38. Mr Lever also denied that his classification issue was a significant factor or the main issue during his discussion with Dr Smith, the CEO of ANSTO, on 17 January 2005. He also denied going into detail about working at a higher level and that he should be paid accordingly. Mr Lever said that Dr Smith spent a lot of time talking about classification systems in the organisation from which he had come. He said he showed Dr Smith some documents including an analysis by Dr Doherty.
39. In response to the suggestion that during the interview with Dr Smith he had said that he would accept a level 7 job elsewhere in ANSTO, Mr Lever said that it was not like that. He mentioned a particular job in another division where he thought he would get out of the Corporate Division and away from Messrs Tuckwell, Cullen and Davies. However, Dr Smith said that that position was moving to the Corporate Division.
40. He denied that a long time was spent on the classification issue, but did say that discussion did move to the CPSU proposal and Dr Smith’s views about classification systems.
41. Dr Smith provided a statement dated 17 May 2006. He apparently made no file note of the meeting. He wrote that Mr Lever had gone into great detail about how he was working at Band 7 and should be classified accordingly. Mr Lever complained about his mistreatment by ANSTO and that he had been ‘defrauded’ by not being given a higher classification. Dr Smith also said that at the conclusion of the meeting Mr Lever said that as he had demonstrated that he was working at Band 7 level he would be more than happy to accept a job elsewhere in ANSTO. Dr Smith told Mr Lever that he would have to apply for and win such a position. There were positions at that level being advertised at that time.
42. Mr Davies did not attend the meeting but had a discussion with Dr Smith about what happened at the meeting at some unspecified time afterwards, and apparently made a note of it on 28 February 2005. He wrote that Mr Lever had proposed that he would drop all claims in relation to ANSTO in exchange for promotion to a vacant role at Band 6. Mr Davies wrote that ANSTO’s interpretation was that he would drop his workers compensation claim in return for the promotion.
Union activity
43. It was not contentious that Mr Lever became involved in union activity at ANSTO as a delegate of the CPSU from about 2002. In February 2004 Mr Lever was elected president of the CPSU at ANSTO.
44. In his opinion, the union work he did was authorised by the EA. He said that previous Presidents of the CPSU at ANSTO had spent 100% of their time on their union activities. He estimated that in the first half of 2004 he spent about 40% to 50% of his time on union activities and during the second half of that year he spent 80% of the time on union activities.
45. Mr Crakanthorp estimated that from about 2003 Mr Lever spent 90-95% of his time on union activities. He said that Mr Lever was the CPSU representative on the project management group (PMG) which was involved in agreeing and finalising the new Objectives Setting and Review Process (OSRP) for the EA. Mr Crakanthorp said that Mr Lever “became quite focussed on the new OSRP” and from that time spent a lot of time on union activities. Mr Crakanthorp’s opinion is reflected in his description of Mr Lever’s main duties in the compensation claim form: “Union representation and some IT work”.
46. Mr Lever described how he and another person had been very successful advocating at reference panels in 2003 to the beginning of 2004 so that management conceded the balance of the reference panels after the first five or six. He thought that he and the other person then received increased attention from Mr Davies. He said that Mr Davies wrote a letter to the CPSU on 21 April 2004 complaining about the level of work union delegates were doing and specifically referred to him. Mr Davies was seeking to limit the work of union delegates to 10%, which Mr Lever thought was a mechanism to stop proper representation of employees.
47. Mr Lever said that on 30 June 2004 the Combined Union delegates at ANSTO were invited to attend a meeting with the new CEO, Dr Ian Smith. He said that one of the points of discussion was the workload of union delegates and that Dr Smith said that he was not inclined to apportion a percentage of time spent by union delegates in union activities. Dr Smith acknowledged that time spent would depend on the prevailing circumstances at the time.
The EA
48. Clause 44 of the EA is entitled Prevention and Settlement of Disputes. Clause 44.14 provides that management shall permit duly accredited union officials access to persons in order to conduct union business during working hours in accordance with provisions of the Workplace Relations Act 1996 and set outs principles for such access.
49. Clause 44.15 permits an employee to invite a union delegate or employee representative to support or represent them in relation to an issue in dispute. That delegate or representative “will be allowed reasonable time during working hours to interview the employee(s) and also time to interview the employee(s) supervisor”.
50. Clause 44.16 permitted an employee to invite a union official to be involved in discussions where a dispute remains unresolved, and “reasonable time will be allowed during working hours” for such discussions.
51. Clause 44.17 imposed certain conditions on involvement of union delegates or employee representatives in the resolution of a dispute during working hours. They included notifying their supervisor before absenting themselves from their workplace (cl. 44.17.1), and not obstructing or hindering normal operations or preventing other employees from normal performance of their duties (cl. 44.17.3).
Removal of overtime
52. Mr Lever gave evidence that in 2002 and 2003 he was able to claim overtime if he worked more than his standard hours. However, he said that in 2004 his overtime had been removed. He considered this was done by management because of his union activities, to exclude and isolate him. He stated that this was not on his mind when he saw Dr Pead on 1 November and 31 December 2004.
53. Mr Crakanthorp’s evidence was that when he became Mr Lever’s supervisor, Mr Doherty allowed Mr Lever to work late one night a week and be paid overtime to supplement his pay, but it was not work that needed to be done after hours. In 2002 Mr Lever’s wife was unwell and Mr Doherty and Mr Crakanthorp gave him time off to look after her. When he returned to work, Mr Lever asked for overtime again but Mr Crakanthorp refused because Mr Lever wanted to do regular work after hours so he could be paid more, but the work was not required to be done after hours. He denied that it was to exclude or isolate Mr Lever. He said that there was a lot of toing and froing between Mr Lever, Mr Cullen and Mr Davies about the classification issue and other union matters before he went on leave in December 2004.
54. Mr Cullen’s evidence was that he supported Mr Crakanthorp’s decision to stop overtime. He also said that Mr Lever saw him shortly after he arrived at ANSTO in January 2003 and amongst other matters made it clear he needed the overtime because of personal financial hardship and that he had recently made a substantial purchase. Mr Lever denied that.
Pay Scale Dispute
55. Mr Lever gave evidence about what he described as a pay scale dispute with ANSTO in which he participated on behalf of the Combined Unions at ANSTO, from about February 2004. He said that this was a separate matter from the classification disputes. He explained how it had arisen and that he was not affected personally. The AMWU (Australian Metal Workers’ Union) lodged a dispute with the AIRC which decided in favour of ANSTO. Mr Davies gave evidence in those proceedings. Mr Lever said that the Combined Union Delegates at ANSTO were unhappy with the result and in July 2004 obtained legal advice which led to an appeal. Mr Lever was elected to “progress the appeal” which had to be lodged urgently. He denied that he had acted without authority. He became aware that Mr Davies had written to various union delegates in August 2004 seeking information about who had been involved in the decision to appeal. That appeal was withdrawn on 30 August 2004 by a letter to the AIRC signed by Mr Lever. Copies were sent to a firm of solicitors and officials of the AMWU, APESMA, CPSU AND CEPU. Mr Lever considered that “the appeal appeared to be an additional source of conflict between me and Mr Davies”.
56. Mr Davies’ view of this matter formed after contacting various officials of the APESMA, CPSU, AMWU and CEPU, was that Mr Lever had filed the appeal without authorisation of the AMWU or other unions involved. A CPSU organiser in the Sydney Office (not an ANSTO delegate) wrote to Mr Davies on 25 August 2004 and stated “Contrary to your advice, the CPSU did not lodge the above application” (the appeal to a Full Bench). The Notice of Appeal obtained by ANSTO stated that the appeal had been instituted “by R Lever on Behalf of the ANSTO Combined Union Delegates”. Mr Davies sent a letter to Mr Lever dated 30 August 2004 setting out a number of issues arising from the lodging of the appeal. On the same day he sent a letter to each of the 14 workplace delegates of APESMA, AMWU and CEPU at ANSTO asking if they were a party to the appeal as it was necessary for ANSTO to identify relevant parties to serve any documents.
Representation of fellow employee in 2004
57. From about the middle of 2004 until he went on leave on 24 December 2004, Mr Lever, in his capacity as CPSU President, began to assist a fellow ANSTO employee (“the employee”) with an industrial dispute. The dispute arose from the abolition of her position and in her view the failure to formulate a new position for her. The employee was one of the three whose classification was also subject of dispute. We had written and oral evidence from the employee, however it is unnecessary to refer to it in detail. She provided evidence of her circumstances at ANSTO which she found stressful and resulted in her taking sick leave at various times in 2004 She also gave her version of events referred to later in this decision. She ceased employment with ANSTO in May 2005.
58. Relevantly the employee went home on sick leave on 14 September 2004 and advised Mr Lever who informed management the same afternoon by e-mail. He also advised in that e-mail that she would be lodging a grievance for victimisation and harassment. During the afternoon of 14 September the employee received in her mail box a letter from ANSTO alleging a breach of duty against her which she says was never investigated.
59. On Thursday 16 September Mr Lever said that he received an e-mail from the employee advising that she was not allowed on site during the period 14 to 28 September and that ANSTO was alleging she had breached her duty to the organisation. We understand this to refer to the e-mail appearing at T3 page 27 which forwarded an email dated 15 September from Mr Stuart Carr noting her request to enter the site, and advising the employee that she could not attend the site during the period she was on sick leave. Mr Carr also said that when she was able to report for work she would need to make an appointment with Dr Hall for clearance and advise her supervisor at least the day before of the time and date of that appointment “to enable him to prepare” for her return. Mr Carr also referred to the letter dated 14 September advising her of an investigation to an alleged breach of duty and to information that she had been given about that matter.
60. Mr Ryan gave evidence about what led to Mr Carr’s e-mail of 15 September 2004. The employee’s supervisor had contacted ANSTO’s security about the employee’s having accessed the site on weekends, which she was told not to do, and which was unnecessary for her work, and that she had accessed the site on a week day at 7 am. He was concerned because documentation and a keyboard were missing from the area where she worked. Mr Ryan referred the supervisor to Dr Carr, the relevant Division Director. On 15 September Dr Carr requested Mr Ryan to remove all building access from the employee until further notice. Mr Ryan said that he briefed the Australian Federal Police (AFP) that the employee’s access was restricted to access to the general site, but that they were to contact him if she tried to exercise that access because she was on extended leave and was not supposed to be coming to work outside core hours and without notifying her supervisor.
61. The employee’s evidence was that she was not aware until 30 November 2004 that ANSTO was accusing her of removal or loss of documents. She was told by Mr Chris Clark (CPSU). Further, she says ANSTO never asked her about such documents.
62. In his written statement, Mr Lever said that on or shortly after 18 September 2004, he became aware that the employee had attempted unsuccessfully to enter the ANSTO building where her office was. He said that he understood that the employee learned that she was only allowed access during core hours if the site Medical Officer certified her fit to resume duties. He referred to an e-mail from the employee to him dated 20 September 2004.
63. Mr Davies’ evidence was that Mr Carr’s procedure was usual and in accordance with the ANSTO Medical Services Procedures when a staff member had been on sick leave for more than four days.. He also gave evidence about what happened on 18 September. He said that ANSTO’s access control records showed that the employee had tried 5 times at 4.15 pm on that day to access ANSTO’s East Front Entry gate, which generated an alarm.
64. Mr Ryan also gave evidence about 18 September.. He said that the employee had tried to access her building. She exited the site at 4.25pm. The AFP contacted him at home. He then contacted Mr Carr and advised him that she had entered the site. Mr Ryan spoke to the employee and told her that her supervisor had notified her that she was only to work standard business hours (8.30 am to 5 pm) on business days and that as she was on extended sick leave, she must visit the site medical officer before returning to work. The employee told Mr Ryan that she needed to collect some private things and food from her office. He told her to contact her supervisor or director to make the arrangement. The employee then left the site.
65. The employee’s evidence differed slightly from that of Mr Ryan about what happened on 18 September.. She said that she had had a conversation with Dr Hall on 17 September 2004 and he had indicated that he had no problems with her going to the site to collect some things. After 18 September, , the employee thought that she could enter the site on her own although perhaps not after hours, which she understood to be other than Monday to Friday 7 am to 7 pm.
66. There was further e-mail correspondence with Mr Lever during the period 25 to 29 October , about the employee having access to the site to collect some personal effects. Mr Davies advised Mr Lever that it was not necessary or appropriate for Mr Lever to accompany the employee, that he had outstanding work “including your stage 3 OSRP form which is well overdue”. This led to a further heated exchange of e-mails in which Mr Lever argued his union activities were provided for in the EA, and Mr Davies disagreeing with a number of Mr Lever’s statements and suggesting that Mr Lever discuss the work/time and performance issues with his manager, Mr Tuckwell, who had raised them. The evidence of the employee was that she was escorted to her office to obtain personal belongings on 28 October 2004. Mr Lever said he was present.
67. Mr Lever sought clarification of the employee’s alleged breach of duty in an e-mail sent to management on 17 September 2004. He received a response from Mr Davies on 20 September 2004 and formed the opinion that Mr Davies “did not like” his representing the employee. He sent another e-mail to management on 26 October 2004 and received a response again from Mr Davies on 27 October 2004. Mr Lever does not consider that the breach has ever been properly particularised.
68. E-mail correspondence shows that management were confused about who was representing the employee, until 23 September 2004 when the employee sent an e-mail stating clearly that Mr Lever was representing her, although others may do so if he were not available. Mr Cullen, Division Director of Corporate Services was still confused on this question on 1 November 2004.
November and December 2004
69. Various issues were dealt with during November and December 2004. It is useful to deal with this period chronologically with headings to indicate specific significant events.
The 1 November 2004 e-mail incident
70. On 29 October 2004, Mr Lever sent an email to Mr Cullen. He stated that over a period of time, Human Resources and Industrial Relations “have attempted to exclude me from industrial matters currently under discussion, which includes a number of individual employee/member disputes.” He went on to explain that he was being excluded from correspondence relating to the employee who he was representing and who had specifically requested that he receive all correspondence. He disagreed with management’s interpretation of the Privacy Act, and said “to deny representation to a union member is a denial of freedom of association”.
71. Mr Cullen replied in an email dated 1 November 2004 (“the 1 November email”). He began:
“We seem to have an unfortunate situation festering that in my opinion can only lead to conflict unless both parties are clear, consultative and transparent in our dealings with one another.
At the moment I see that your interpretation and representation of what you see as the facts and your interpretation of a piece of complex legislation are at odds to ours.”
He went on to describe those differences and to say that the employee had not to his knowledge advised HR or management that she wanted information shared with Mr Lever.
72. Mr Lever described his reaction to receiving the e-mail in various ways. He said in his written statement that it made him angry and upset. He has also said that after he received this email he felt ill; he felt a bit panicky, fatigued, confused, weak, and washed out. He decided to go to see his doctor, Dr Pead, during the afternoon and made an appointment. Dr Pead’s clinical notes for that consultation record “BP 155/100 Check later says under some stress at work”. Mr Lever said that the increment dispute was not in his mind. He said that basically he told Dr Pead that management was blocking him from resolving disputes and was putting him into an impossible position and it was affecting him. He said it was the first time he had raised the issue of stress at work.
Alleged Breach of Duty
73. On 3 November Mr Lever received a letter from Mr Cullen notifying him of an investigation into breach of employee duty and directing him to attend a meeting at 2 pm the next day to discuss the matter. Although not detailed in that letter, the alleged breach related to Mr Lever’s leaving work and returning onto the site with the employee on 20 October 2004. A meeting occurred the next day with Mr Cullen and Mr Davies attending. After providing Mr Lever with copies of the Security Incident Report and a report prepared by Mr Tuckwell dated 1 November 2004, and some discussion, Mr Cullen gave Mr Lever until 11 November 2004 to provide a written response to the alleged breach.
74. On 8 November a letter which Mr Lever said he drafted on 2 November, partly in response to the 1 November e-mail, was sent to Mr Cullen, Mr Patrick Blades and Mr Davies by e-mail at 16.42. Copies were sent to various people including Ms Lorin Booth, a CPSU organiser at the Sydney office of that union, and the employee. Mr Lever signed it as CPSU President On Behalf of the CPSU Executive and Delegates. It was not conciliatory. It listed delaying tactics (barriers) created by management and requested ANSTO to work with the Unions. It said:
“To date we have had to deal with:
·Refusal to accept grievances
·Delaying Reference Panels, in one case for almost 2 years
·Having to lodge disputes with the AIRC to get management to comply with the EA
·Use of the quality system to undermine and subvert the EA
·Use of the Privacy Act to prevent staff representation
·Improper use of security provisions at ANSTO (used as a form of punishment)
·Heavy handed treatment of aggrieved staff
·Retribution by management of staff who dares to challenge management decisions
·Intimidation of Union Delegates
·Improper use of Breach of Duty clause”
75. On the same day Mr Cullen sent a letter to Ms Booth attaching a formal complaint about Mr Lever from Mr Blades, Associate Director, People and Development at ANSTO. Mr Blades referred to Mr Lever’s remark on 27 October 2004 that in the employee’s case, the actions of HR had been “vexatious and only serving to inflame the situation”. Mr Blades stated that the HR staff, including some CPSU members, had handled the case diligently and that some found the comments personally insulting. Mr Cullen asked Ms Booth to “formally raise this with Mr Lever and direct that he desist from making such statements””
76. On 11 November 2004 Mr Lever prepared a detailed response to the breach of duty letter in which he said: “This is a vexatious baseless claim … I believe this claim has been entered into to undermine my capacity as a CPSU delegate and prevent me from further representing [the employee].” He described the claim as “defamatory”.
77. Mr Lever said that he was given permission by his supervisor Mr Crakanthorp to leave the site on 20 October 2004. He told Mr Crakanthorp he was leaving on union business. Mr Crakanthorp’s evidence was to similar effect. Mr Lever gave evidence that in his role as union representative he had arranged to accompany the employee to an appointment with her solicitor in the afternoon.
78. In his written statement, Mr Lever said that during the afternoon of 20 October 2004 the employee drove her vehicle onto the ANSTO site and to the car park near his building. He got into the passenger seat and she drove out. They both showed their security identification cards at two gates on the way out. On returning to the site later, they were waved through the first gate but stopped at the second where the employee had a conversation with the AFP officer before being permitted to enter the site.
79. Mr Lever got out in the car park, got into his car and drove to the AFP security office. He had a conversation with an AFP officer who told Mr Lever that they were stopped because the employee’s access to site has been blocked 24/7. Mr Lever was refused access to a copy of the notice authorising the restrictions, and asked to speak to Mr Ryan, who was unavailable. He then spoke to a Sergeant who said that the employee’s access to the site was restricted. Mr Lever replied “I understood the restrictions were to her workplace”, and when the officer repeated that the restriction was to the site, Mr Lever said “Then why does she hold a valid access pass?”. In response, the officer shrugged.
80. The employee’s evidence supports this version of what happened. She said that she went on to the site first to collect Mr Lever at about 2 pm. It was raining and “we” were running late so I offered to pick up Ron from his building at ANSTO, which he accepted. She was not challenged when she accessed the site or on leaving it at that stage. She was challenged only upon returning at about 5.45 pm. When she left, after Mr Lever, the AFP searched her car. She said that ANSTO never advised her that she would be investigated in respect of the incidents of 20 October 2004, nor was she asked for her version of what happened.
81. During his oral evidence Mr Lever also said that the only restriction he knew of was that the employee was denied access to the building where her office was. In his detailed response of 11 November 2004 he described how the employee had entered the site on Saturday 18 September, but her access to her building was denied. She was informed that her access was allowed only during core hours, provided the site Medical Officer said that she was fit to resume her duties.
82. During the afternoon of 28 October 2004, Mr Lever said that Mr Tuckwell told him about an incident report relating to the employee’s coming on to the ANSTO site on 20 October 2004 and they had a conversation. Mr Lever said that he told Mr Tuckwell that he was the employee’s representative and was not informed of a restriction applying to her coming on site, although he was aware that her swipe access to her building had been removed, but she was allowed through, which we understand to mean onto the general site. He also said that Mr Tuckwell did not suggest that ANSTO was investigating a breach of duty by him.
83. In his statement dated 19 May 2006, Mr Tuckwell relates a conversation with Mr Lever about the incident report but says it occurred on 1 November and not 28 October. He reports that Mr Lever told him he had argued with the AFP on 20 October that the employee still had access to the site and that he was aware that she could not access any buildings. Mr Tuckwell also recorded that Mr Lever said that he had previously accompanied the employee on site to retrieve some things from the site. We infer that this refers to 28 October.
84. In a memorandum dated 1 November 2004, Mr Tuckwell wrote that Mr Lever admitted that he did not notify his supervisor regarding his absence but was aware of his responsibility to do so. This is inconsistent with the evidence of Mr Lever and Mr Crakanthorp. In his statement of evidence Mr Tuckwell said that Mr Crakanthorp did not know where Mr Lever was.
85. Mr Davies attached to one of his statements, forms Mr Lever filled out soon after joining ANSTO in which he undertook to comply with ANSTO’s rules, regulations and the like relating to health, safety and security, and confirming that he had received a copy of ANSTO’s Ethics and Code of Conduct.
86. Mr Ryan provided evidence about ANSTO’s security policies, the measures taken to ensure staff are aware of security issues, the security clearances staff have to undergo and that there are different levels of clearance. Each staff member has a security access card and photo identification.
87. Mr Ryan’s evidence was that ANSTO’s site covers 70 hectares and is surrounded by a 6 km boundary fence (the general site). All staff have access to the general site. There are about 85 buildings within the general site, each of which has access control at all times. Staff members only have access to the areas in buildings where they work, and have different access entitlements in terms of during the day and after hours. He said that members of staff know that they are not to let other people in and out of buildings as they may have different access privileges. All staff entering the general site must stop at the front gate and present photo identification to an AFP officer who checks that the person is entitled to enter the general area. After hours, the AFP must physically take the staff pass and review and log it. The AFP officer has the power to restrict access onto the general site if there are security problems and will report the problems to Mr Ryan. The AFP also patrol the general site all the time.
88. Mr Ryan received a security incident report from the AFP and then prepared an ANSTO security incident report dated 21 October 2004 which he forwarded to Mr Druce who was a manager in the division where the employee worked. On 8 November Mr Druce advised him that the employee and Mr Lever have been formally notified by HR of their responsibilities and informed not to breach security rules again. There is no evidence that that was in fact done. The employee denies that it was.
89. Mr Ryan had no record of passing on his report to Mr Crakanthorp or Mr Cullen. He said division directors are responsible for security in their own divisions, and to take steps where their staff have breached security.
90. Mr Cullen provided evidence about the importance of security at the ANSTO site and the obligations of employees to fulfil their duties and the circumstances in which they are taken to have failed to fulfil their duties (cl. 36.1 of the EA). Mr Cullen also detailed the requirements for investigating a breach of duty and the process in this case.
Mr Davies’ letter of 9 November 2004
91. In a letter dated 9 November 2004 Mr Davies wrote to Ms Booth “Re: Mr Ron Lever – Concerns … Further to our discussions regarding Ron Lever and his union activities I provide the following background as requested.” In summary that background was that:
·Mr Lever believed his role as a union delegate meant that he could please himself about time keeping and work;
·he assisted employees who were not CPSU members;
·his advice in some cases, for example the employee’s case, “has inflamed the dispute”;
·Mr Lever had notified an appeal to the full bench of the AIRC without authority of the ANSTO combined unions;
·Mr Lever had taken the major role in the carriage of the performance management guidelines (OSRP) and introduced (“at the eleventh hour”) the notion that ANSTO should assess staff who are union representatives on their union performance;
·Mr Lever was spending too much time on union activities;
·There had been a formal complaint about him from HR
·Employment issues, including that he was the subject of breach of duty provisions concerning a breach of security
92. Mr Lever prepared a detailed response to Mr Davies’ letter and that of Mr Cullen of 3 November. It was dated 5 December 2004, and was sent to Comcare on 19 February 2005.
93. An e-mail dated 24 November shows that Mr Lever had become aware that Mr Davies had been dealing extensively with Ms Booth rather than with him about the employee’s case. He complained to Ms Booth, and Mr Clarke of the National Secretariat of the CPSU in Melbourne.
94. On 25 November, the employee said that she had a conversation with Mr Cullen which caused her to believe that ANSTO was trying to pressure her not to use Mr Lever as her union representative. She also spoke to Mr Clark of the CPSU in Melbourne seeking his support which he reluctantly agreed to after being read a letter a letter from the employee’s lawyer. She retained Mr Lever as her primary contact.
95. On 1 December Ms Booth sent an e-mail to Mr Davies advising that he was apparently mistaken about her being the employee’s representative, and confirming that she was not dealing with that case, but that Mr Lever and Mr Clarke were the CPSU representatives.
96. On 12 December 2004, Mr Tuckwell wrote to Mr Lever directing him to complete his stage 3 assessment for 2003/2004 by close of business 17 December 2004. He also noted that Mr Lever had not provided finalised objectives for 2004/2005 stating “I now advise you that this is unacceptable”. The letter continued relevantly:
“I note that on many occasions over the last four months, I as your assessor, have agreed with you to meet and discuss your 2003/2004 phase 3 review. On each occasion you have failed to prepare the required documentation and our meetings have been cancelled. In addition, apart for one meeting with me, you have made no attempt to date to communicate with your supervisor or assessor in relation to your draft objectives for the current period. Accordingly, you are directed to meet with me over the course of the next week and prepare revised objectives by 17th December 2004.
I note that the OSRP guidelines confirm that you, the staff member, have a joint responsibility in relation to setting objectives. In my view you have not discharged that responsibility. While I have finalized objectives from other IM staff, yours are still outstanding. This is unacceptable.
I am available to discuss these issues. Please contact me if you require clarification”
97. There is in evidence an apparent reply to Mr Tuckwell dated 20 December which Mr Lever wrote:
“As you are aware I am in dispute with ANSTO re my classification. The CPSU has just written to Dr I Smith re a proposed solution. I doubt at this late stage that there will be any progress made prior to Xmas.
For the rest of this week I will be focusing on any outstanding Heat Jobs and e-mails. I am hopeful that when I return from holidays my situation can be resolved quickly”
98. As referred to earlier, the CPSU letter was dated 15 December 2003. It related to the three outstanding employee classification disputes, two of them being Mr Lever’s and the employee’s. It noted that one page summaries of each case would be forwarded by Mr Lever, which apparently they were as they are included in Mr Lever’s evidence. In Mr Lever’s summary he says that “the past 24 months have been a particularly difficult time for me. … I have been investigating cost effective ways of dealing with these types of disputes and have devised this proposal that is being presented to you”.
99. Also on 20 December, Mr Cullen wrote to Mr Lever and said that having considered his response to the investigation of breach of duty:
“I have formed the view that you knowingly accompanied an employee onto site despite your being aware that the employee was subject to restrictions imposed by ANSTO.”
100. Mr Cullen said that neither the employee nor Mr Lever had contacted management to access the site. He had decided to counsel Mr Lever verbally about the matter and directed him to attend a meeting at Mr Cullen’s office at 11 am on Tuesday 21 December. Mr Cullen advised Mr Lever that he may be represented, that his personal file would record that counselling was undertaken and that the file note would remain current for up to 2 years during which period his performance (“in relation to the incident”) would be monitored by his supervisor.
101. Mr Lever’s e-mail response of the same day was to request further information, including the term or condition of employment he had breached, and copies of correspondence formally notifying him of the restrictions on the employee. Mr Lever also alleged that Mr Cullen had failed to comply with a provision of the EA.
102. Mr Cullen sent an e-mail in which he said that Mr Lever was well aware of the answers to his questions but that he would postpone the meeting until he, Mr Cullen, returned from leave in January and would provide a formal reply in the meantime. Mr Lever did not receive the e-mail until after he had gone to attend the meeting on 21 December with his representative and was told that it had been postponed.
103. Mr Davies’s evidence is that as Mr Lever has not returned to duties the matter “has been put on hold indefinitely”. Mr Cullen left ANSTO in December 2005.
The E-mail Copying Incident
104. Mr Lever’s evidence was that on 21 December 2004, Mr Crakanthorp told him that at the request of Mr Cullen, he had copied Mr Lever’s emails and given the copies to Mr Cullen. This was in response to a general question from Mr Lever about what Mr Crakanthorp would do if he were directed by certain administrators to access someone else’s emails. In his written statement, Mr Lever said that he was shocked. He returned to his desk in shock. He said that he “felt quite ill, almost physically ill. I sat there for a while and went over in my mind what this meant. I had a lot of emails from the unions, their members other delegates” which were private and confidential and in some cases, privileged. He said that during January he was a wreck.
105. Mr Lever thought that correspondence in October 2002 with Mr Davies had meant that there would be a central area for unions to store their electronic data which would have access restricted to the unions. Mr Lever stated:
I felt violated, totally unprotected and exposed. This, coupled with everything else that had happened in the previous months in terms of the harassment and intimidation flowing from my union activities, caused me to believe at the time that not only was I being personally targeted but my work and career were all at risk.
106. At Mr Lever’s request, the CPSU National Secretariat sent by email a letter dated 22 December 2004 to Dr Smith about Unauthorised access to CPSU e-mails of Mr Lever. Mr Lever had approved the e-mail before it was sent. The letter requested an independent investigation by a person agreed to by ANSTO and the CPSU, alleged breach of trust and breach of principals of the Privacy Act, and requested answers to a number of questions. It stated that if the matter was not dealt with seriously and expeditiously, the CPSU would take the issue to all members at ANSTO and to the Privacy Commission.
107. The evidence of Mr Crakanthorp, Mr Cullen and Mr Davies was that the e-mails were downloaded in relation to a security incident involving Mr Lever, and that Mr Davies had obtained legal advice that ANSTO owned the e-mails. Mr Crakanthorp thought he told Mr Lever about downloading the e-mails in November or December 2004 and knew that Mr Lever was upset about it before he went on leave. Mr Davies’ evidence was that he had disposed of the compact discs containing the copied e-mails in about May 2005.
108. Also on 22 December 2004, Mr Lever sent an e-mail to Dr Smith advising that he wished to inform him in some more detail about his situation at ANSTO. He had intended to present it in a documented form after his return from holidays but the “situation is becoming intolerable and it is now affecting my health and wellbeing”. He sought a time to see Dr Smith.
109. Mr Lever continued to work from 1 November 2004 until 24 December 2004 when he began his annual leave at about 1 pm. He has not returned to work since.
110. On 31 December 2004 Mr Lever again consulted Dr Pead. The clinical notes record “BP 160/100 start Coversyl 2; off work – hypertension; work place stress; interpersonal conflicts at work place; HT, obesity; check lipids etc”. Mr Lever said that the reclassification dispute was not on his mind at this time.
2005
111. In a letter dated 11 January 2005, Dr Smith responded to the CPSU’s 22 December letter. He said that the e-mails had been accessed as part of an investigation of the apparent loss of documents under the control of an employee linked to Mr Lever. That matter remained under investigation. Mr Lever said that this was the first time he became aware of the allegation of missing documents.
112. Mr Lever said that he met with Dr Smith on 17 January 2005 for about one and a half hours. Mr Lever had prepared a document dated 17 January 2005 which addressed his alleged breach of duty and the e-mail copying incident which he said he left with Dr Smith. It enclosed various attachments. Mr Lever was very angry again when he found that Dr Smith had not written the 11 January 2005 letter and had either condoned or was involved in the actions of Mr Cullen and Mr Davies.
113. Dr Smith said that Mr Lever raised the copying of e-mails but Dr Smith told him that ANSTO and its staff were within their rights and moved on to discuss other matters. They did not discuss the alleged breach of duty. The evidence of Mr Lever and Dr Smith about the discussion of classification issue at this meeting has been set out earlier in this decision. Dr Smith said that Mr Lever brought a large volume of material to the meeting but that he did not keep copies.
114. On 21 January 2005 Mr Lever saw Dr Pead. As we understand the doctor’s notes, they record “130/90 blood pressure gone down; already losing weight, continue diet and exercise”. The date 26 January 2005 appears in the doctor’s notes but there is no entry beside it.
115. At the end of January 2005 Mr Lever saw Mr Crackanthorp at home, and told him that he had seen a doctor who told him that he was suffering from stress. Mr Crackanthorp thought that he did not look well at the time. Mr Lever contacted him on 28 January and indicated that as of Monday 31 January he would be on sick leave until at least 14 February, and that he intended to claim his recreation leave as sick leave. Mr Crackanthorp sent an e-mail the same day to Mr Tuckwell advising him of what Mr Lever had said. On 31 January 2005 Mr Tuckwell wrote to Mr Lever asking him for a sick leave form.
116. On 1 February 2005 Mr Lever wrote a lengthy and detailed response to Dr Smith’s letter which was forwarded to Dr Smith by Mr Lever’s representatives on 7 February 2005. He had also signed his workers compensation claim on 1 February..
117. On 2 February Mr Lever saw Dr Pead again. The notes record “stress relieved a little but effects on his health persist; insomnia, domestic upsets – affecting relationship with wife; tends to over react when upset, gets frequent migraine”. Blood pressure was 130/85 and he was to continue Coversyl. “Commonwealth work compo” appears below that entry and before the next for 11 February 2005 which states “work cover form”.
118. Between 2 and 5 February 2005 there were a number of e-mails between a representative of Mr Lever and Mr Cullen. The tone is reflected in the following.
119. In response to the statement “Ron Lever has asked me to represent him in respect to his disputation with management”, Mr Cullen said: “Which particular dispute …?” The response was “all”, and included a request from Mr Lever “to follow up on why he has not received his 12% supplemented salary increase effective from the beginning of July.” Mr Cullen said he would look into that and respond, and “First I have heard of this one”.
120. A later request on behalf of Mr Lever was for the information about his alleged breach. Mr Cullen’s response was to the effect that Mr Lever had received the decision before Christmas and that he had failed to attend at least two meetings Mr Cullen had tried to organise. The response on behalf of Mr Lever disputed that assertion, sought a formal apology, and repeated the earlier request for a written account of the breaches.
121. There is some later correspondence from Mr Lever’s representatives expressing concern that Mr Davies has indicated that management did not intend addressing the issues concerning Mr Lever until his return to work, seeking intervention of someone independent of Mr Cullen and Mr Davies, and resolution of the issues. The representatives stated that Mr Lever was absent from work ’due to “hypertension – work related stress” essentially stemming from these unresolved issues’.
Other Lay Evidence
122. We had oral and written evidence from Dr Hammerton, an ANSTO employee and CPSU representative during the period the subject of these proceedings. She was one of Mr Lever’s representatives in 2005. She gave evidence about Mr Lever’s activities as a CPSU delegate and then President, at ANSTO. She spoke of his rational and level headed approach to industrial relations issues. She referred to Mr Lever’s classification dispute and the Reference Panel which did not proceed, and said that she was unaware of his taking any further steps to resolve this dispute in 2004. She attended the meeting on 4 November 2004 with Mr Lever about the breach of duty allegation. In her 20 years’ experience at ANSTO, she considered it unusual for a person on sick leave to have access restricted to the building where they worked. She was also aware that Mr Lever was quite upset about the e-mail access incident just before his annual leave. She accepted that ANSTO may have reasonable grounds to access e-mails in certain circumstances but she expected ANSTO to advise the employee of its intentions.
123. Mr Bloom, an ANSTO employee and member of the AMWU also provided a written statement and gave oral evidence. He was also Mr Lever’s representative in 2005. He described Mr Lever’s union work at ANSTO. He observed that Mr Lever’s approach was different to that of past delegates as he tried to ascertain the source of disputes and sought to change the underlying processes to avoid future confrontation. He described Mr Lever’s successful participation in various Reference Panels and that subsequently ANSTO did not contest them. He gave an example of one that had been successful where Mr Davies had incorrectly asserted that an employee had not completed his objectives, when the objectives were those of another employee. He wrote a minority report which was critical of Mr Davies’ actions in that panel. He has subsequently not been accepted to participate in such panels although he has been nominated by employees. Under the EA, ANSTO management may object to a panel member nomination.
124. Mr Bloom said that Mr Lever took a major role in negotiating the EA on behalf of the combined unions. He also referred to the pay scale dispute and his recollection of Mr Davies’ taking exception to the Combined Unions’ lodging the appeal, and his writing to delegates to see who had authorised it. He related Dr Smith’s comments at a meeting in the middle of 2004 to the effect that he would not put a percentage on what was reasonable time spent on union activities, as it would depend on the nature and number of disputes. He also expressed the opinion that in his 41 years’ plus experience at ANSTO, he believed it was unusual for an employee to have site or building access restricted. In May 2006 he attended work without difficulty while on sick leave to tidy up some issues before going on annual leave.
125. Mr Bloom also regarded many e-mails he sent to Mr Lever about union activities to be confidential. He considered that Mr Lever managed his role effectively and was well supported by union delegates. He also set out evidence about matters to do with a return to work program for Mr Lever which are not relevant to the matters we have to determine.
Other Medical and Related Evidence
126. Mr Lever said that he had had trouble sleeping before and after the beginning of November 2004. At that time he was sleeping more lightly, getting about 2 or 3 hours sleep, 4 or 5 if he was lucky, because he would think about an issue and how to get around the blocking. He also suffered migraines more frequently than before. That had happened gradually from the first few months of 2004. Before that he had 3 or 4 a year but by November he was getting them every 2 or 3 weeks until he finished work. He took flex-time for migraines. In November he was continually struggling to focus and concentrate on things. At the time of the hearing he was taking sleeping medication and had been for some time. He said he had never had such medication before. He said that his condition affected his wife and children. He was more emotional and more irritable over little things. That started in the second part of 2004.
127. He described the 22 to 24 December 2004 as the worst days of his life. In the oral hearing he said that late on 21 December he found out that his e-mails had been accessed. He would have gone off on that day but he had outstanding work to do. He was allowed to leave at 1 or 2 pm on 24 December 2004.
Dr Pead
128. Dr Pead, filled out an initial Workers’ Compensation Medical Certificate dated 2 February 2005 stating that Mr Lever would be fit for modified duties on 21 February 2005. We understood Dr Pead to say that he filled it out on 11 February 2005. The diagnosis was Acute Anxiety with secondary depression, work related. Dr Pead recommended Mr Lever be transferred from the hostile environment to another department pending resolution of the matter. In later certificates, the descriptor “acute” was not included. There are also two Unable to Work Certificates for the period 24/12/04 to 24/1/05 (dated 24/12/04) and 25/1/05 to 11/02/05 (dated 25 January 2005). Dr Pead’s evidence was unclear as to when these were filled out but he said that they were backdated.
129. On 22 February 2005, the doctor noted that Mr Lever could not afford Ms Nasser. His notes do not record when he referred Mr Lever to Ms Nasser. On 1 April 2005 Dr Pead recorded “Centre Link for financial support”.
130. In a report dated 2 October 2005 Dr Pead wrote that on 21 January 2005 Mr Lever’s blood pressure was normal and he was on a new diet and exercise plan, with some weight reduction. However, on 2 February 2005 Mr Lever reported that he was not sleeping and was irritable at home to the point where his relationship with his wife was being affected. When seen on 22 February 2005 Dr Pead recorded that Mr lever “reported further hassles with management”. The doctor wrote that a stalemate continued about an alternative position for Mr Lever and on 18 May 2005 when he saw Mr Lever, the uncertainty about his position was not helping and Mr Lever “became more depressed than ever”. Dr Pead criticised ANSTO’s treatment of Mr Lever and expressed the opinion that Mr Lever’s continued treatment by a psychologist should be funded, and that his prognosis was good if he could get back to work, which required his employer’s co-operation. In his opinion, Mr Lever developed well-marked anxiety and depression as a direct consequence of his treatment at work:
“His privacy was invaded, he was denigrated, he was bullied. It was exceptionally bad treatment for any employee and his employer far exceeded that reasonable degree of criticism and exercise of authority that would be appropriate.”
In his opinion, Mr Lever’s psychological reaction was more than a passing upset, “the abuse in the work-place had produced a pathological state of anxiety …”
131. During his oral evidence, Dr Pead said that Mr Lever’s condition was no worse, or the same, on 1 November and 31 December 2004. He also said that Mr Lever had a history of blood pressure that had been high, but not consistently so as to require medication.
132. Dr Pead’s clinical notes from 1997 were in evidence. They confirm that Mr Lever had a long history of migraines and obesity, and that he suffered stress on one occasion during his university course.
Ms Nasser
133. Mr Lever said that he saw Ms Nasser, psychologist on 25 January, 1 and 8 February 2005 but could not continue because of the cost. A report to Dr Pead dated 2 February 2005 and her clinical notes were in evidence, although parts of them were impossible to decipher. There is nothing in Ms Nasser’s evidence showing the date on which Dr Pead referred Mr Lever to her.
134. On 25 January 2005, Ms Nasser recorded Mr Lever’s history. She noted that Mr Lever said that 2 years ago (July 2002) he was supposed to get promoted but did not. He had been working at a higher level, “They pulled the pin at the last minute. Everyone in his gp were working at a higher level – promoted nobody”. He felt that Mr Cullen, Mr Davies and Mr Tuckwell were harassing him and that there was a plot to get him to leave. He referred to the alleged breach of duty, the e-mail reading incident, that his over-time had been taken away because he was union representative; and that he was spending 60% to 70% of his time on union work. He was not sleeping, felt like it would not be hard to push him over the edge, and he was taking blood pressure medication. He wished to avoid anti-depressants. Ms Nasser noted, as we understand it, “anxiety symptoms – Hyperventilating; Next week: need to teach him anxiety management strategies”. The notes for 1 and 8 February 2005 reflect implementation of strategies including thought stopping and breathing control, and that Mr Lever was starting to look after himself, he was starting to walk and swim. By 8 February 2005 his sleeping had improved a bit. Ms Nasser recorded the name of Mr Lever’s barrister in her 1 February note.
135. Mr Lever also saw Ms Nasser on 27 October 2005 after his claim had been rejected. She conducted psycho-metric testing and prepared a lengthy report to his solicitors. She took a detailed history, including Mr Lever’s saying that the victimisation commenced around July 2002 when he was expecting promotion because he had been performing at a higher level but management “pulled the pin”.
136. On that occasion, Mr Lever was upset that his employer had not facilitated his return to work and his income had been cut. She observed that Mr Lever’s depression and anxiety were both more severe than they were in January. He was armed with 3 large lever arch folders of documents. She noted that he said that he had never taken anti-depressant medication or psychotropic medication. She concluded:
“His emotional state is a direct reaction to incidents and issues in his workplace which have not been resolved. As a result of the lack of resolution his condition has deteriorated from that which was initially assessed now resulting in a recognised mental disorder. With adequate psychological intervention and attention to the issues at hand, Mr Lever’s prognosis for recovery with (sic) six (6) months, is very good.”
137. In that report she wrote that Mr Lever had told her that the victimisation, harassment and bullying in his workplace began from 3 November 2004. On 8 December 2005, apparently in response to a letter from Mr Lever’s lawyers about her report, Ms Nasser referred to the above reference to “3 November 2004” as an error and continued: “This is what I have written in my notes from the interview with Mr Lever. Apparently, Mr Lever first consulted Dr Pead regarding this matter on the 1st November 2004. It is therefore reasonable to assume that the bullying commenced sometime before that date”. She also amended the word “promotion” in the context referred to above, to “reclassification”.
Dr Teoh
138. Dr Teoh, psychiatrist, saw Mr Lever for a medico-legal examination on 18 November 2005. He also gave oral evidence. His diagnosis was adjustment disorder with depressed and anxious mood (DSM IV Diagnostic Criteria) at the date of the consultation. Dr Teoh’s opinion was that work-related factors including the access to his e-mails incident, the excessive work load, breach of duty and perceived harassment because of his union activities “are contributing factors to his psychiatric condition”. Mr Lever told Dr Teoh that he was given an excessive workload, and that he worked over-time without being paid properly. Mr Lever became tearful when he told Dr Teoh that he felt “devastated” that nothing was done about his work environment. Dr Teoh relied to an extent on Dr Pead’s report of 2 October 2005.
139. In cross-examination, Dr Teoh said that that Dr Pead had noted significant symptoms in his October 2005 report but that they were not sufficient for a diagnosis. When he saw Mr Lever he obtained a wider range of symptoms which allowed him to make the diagnosis.
Dr Donsworth
140. Dr Donsworth, consultant psychiatrist, provided a report dated 3 February 2006. She interviewed Mr Lever on 30 January 2006 for medico-legal purposes. She stated that Mr Lever did suffer from some symptoms of acute emotional distress which:
“could have been diagnosed as an Adjustment Reaction of Unspecified type from December 21 2004 until 2 February 2005. These symptoms rendered him temporarily unfit to work. This incapacity probably continued up until the time in February 2005 when Dr Pead had certificated him fit to return to work for modified duties. … In my opinion he has been fit to work from February 2005 onwards” (emphasis added).
She did not consider that he was currently suffering from psychiatric disorder.
141. Dr Donsworth withdrew her “concession” that Mr Lever “could have been diagnosed” as described above, during cross-examination. She was asked to assume that the consultations with Dr Pead on 1 November and 31 December 2004 were not significantly different. She noted that Dr Pead had not commenced medication or got Mr Lever back to see him for the management of the condition or stopped him working when he saw him on 1 November 2004, and certified him well enough to go back to work in February/March 2005. She also said that flu like symptoms, tiredness, frustration, feeling poorly, irritability, increasing frequency of migraines, more headaches, sleeping less, and increasing loss of temper and change in relationship to wife and children did not satisfy a DSM IV condition. She considered these were a normal reaction to stressful conflict. There was no evidence that Mr Lever was rendered dysfunctional in November/December 2004. His symptoms were not severe enough. She said to meet the diagnosis there would have to be significant incapacity in normal areas of life. She did not consider that he suffered symptoms that satisfied a diagnosis of adjustment disorder at any stage.
142. Following this evidence, counsel appearing for Comcare conceded that it was probable that Mr Lever was suffering from adjustment disorder from end of December 2004 and when he saw Ms Nasser in late January 2005 but took issue with his suffering the condition in 1 November 2004.
Dr Kaplan
143. Dr Kaplan, forensic psychiatrist saw Mr Lever on 22 May 2006. Mr Lever provided a history of his difficulties at work during 2004, that by December he was experiencing insomnia, migraines, irritability and becoming withdrawn, that he last worked on 24 December 2004 and that his mental state was “not very good”. The only restriction to his returning to work was a suitable position where he is not in contact with his supervisor and has meaningful work. The doctor noted that Mr Lever did not detail any emotional changes aside from mild insomnia. He was preoccupied with the details of his workplace problems. Dr Kaplan found that he Mr Lever did not have anxiety or depression when he saw him. Further, “if he did have an Adjustment Disorder at the time he left work in December 2004, he did not describe any symptoms indicating that this was the case”. The doctor noted that an adversarial situation had developed and that it was more than likely that Mr Lever would strongly resist resuming pre-injury duties.
Consideration
(a)Did Mr Lever suffer an injury on 1 November and/or 31 December 2004?
144. The first issue question we have to determine is whether Mr Lever was suffering from an injury within the meaning of s 4 of the Safety, Rehabilitation and Compensation Act 1988 as of 1 November and/or 31 December 2004. The nature of the injury alleged in this case is a mental ailment and accordingly we have to determine whether Mr Lever was suffering from a recognised medical condition, or having regard to his circumstances, whether he was in a condition that was outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439, p 444) on 1 November and/or 31 December 2004.
145. We prefer the evidence of Dr Donsworth to that of Dr Teoh on this issue. As we understand her evidence, her opinion was that Mr Lever did not suffer from a psychiatric condition on 1 November 2004 or 31 December 2004. It was also her opinion that Mr Lever’s symptoms were not such that his condition was outside the bounds of normal mental functioning and behaviour. Dr Teoh’s opinion was given on the basis of the symptoms at the time of his assessment rather than at the relevant dates. Further, in his opinion the symptoms reported in Dr Pead’s report of October 2005 were not sufficient for such a diagnosis. We did not find the attempt during oral examination to have him give a diagnosis on symptoms said to exist in 2004 of assistance, because we do not accept that Mr Lever was suffering at the relevant time all of the symptoms put to Dr Teoh. We also do not consider that Dr Teoh appreciated the extent of Mr Lever’s activities during the relevant times.
146. We consider that the most reliable evidence about Mr Lever’s symptoms is that set out in the contemporaneous notes of Dr Pead and Ms Nasser referred to earlier. We do not consider Mr Lever’s recollections as set out in his statement and oral evidence to be reliable where there is no contemporaneous record supporting it, as they are given so long after the events and in the context of these proceedings.
147. We also do not consider Dr Pead’s evidence reliable to the extent that it is in not consistent with his clinical notes. For example, it is not clear when the two Unable to Work Certificates were actually written. Mr Lever did not attend the practice on either date specified on them. We infer from the evidence of Mr Crakanthorp and in particular from his e-mail dated 28 January 2005 that they were not filled in until after 28 January 2005. This conclusion also reinforces our view about Mr Lever’s evidence. In his statement he says that Dr Pead gave him the certificate dated 24 December 2004 on 31 December 2004. We do not accept that.
148. We consider that Ms Nasser’s report in November 2005 supports Dr Donsworth’s opinion that Mr Lever did not suffer a mental ailment in November/December 2004. She stated that at that time Mr Lever’s condition had deteriorated from when he was initially assessed because of a lack of resolution of work place issues, “now resulting in a recognised mental disorder”. We infer that when she first saw Mr Lever she did not consider that he had a recognised mental disorder. She had not undertaken psychometric tests until November 2005.
149. There have been inconsistencies in the dates relied upon in support of Mr Lever’s claim. The e-mail of 1 November 2004 was not referred to until Mr Lever’s statement was filed this year. Mr Lever said in cross-examination that 3 November 2004 was the crucial date. He told Ms Nasser the same date which his solicitors sought to have amended. In the request for reconsideration, 24 December 2004 was specified as the critical date.
150. Dr Kaplan’s report also supports Dr Donsworth’s conclusion that Mr Lever was not suffering a psychiatric condition in December 2004.
151. The evidence set out earlier of Mr Lever’s activities during the period 1 November to 24 December 2004, including correspondence, and some quite substantial documents prepared by him, support Dr Donsworth’s view that Mr Lever’s condition was not outside the bounds of normal mental functioning and behaviour. Mr Lever also prepared more material for the meeting with Dr Smith on 17 January 2005 and spent about 1 ½ hours in discussion. There was no evidence of abnormal functioning during that interview. Mr Lever left work on 24 December 2004 to take holidays. Dr Pead filled out the compensation certificate on 11 February 2005. The certificates covering Mr Lever’s recreation leave were filled in on 2 February 2005 or later.
152. We therefore find that Mr Lever was not suffering a recognised psychiatric illness, nor was his condition outside the boundaries of normal mental functioning and behaviour on 1 November 2004. However, as a concession has been made by Comcare that Mr Lever was suffering from an adjustment disorder as from the end of December 2004, we deal with that aspect of the case on that basis.
153. No case was put on behalf of ANSTO that Mr Lever’s condition was attributable to anything other than his employment. The issue in respect to the end of December was: did Mr Lever’s adjustment disorder result from reasonable disciplinary action or failure to obtain a promotion, transfer or benefit in connection with his or her employment within the meaning of s 4 of the Act?
154. We note the concession, in our view properly made, by counsel for Mr Lever that the failure to gain the reclassification falls within the second part of that provision and address that matter first (see Trewin v Comcare (1998) 84 FCR 171).
155. Clearly there were a number of areas of conflict in the workplace which contributed to Mr Lever’s condition, as the lengthy summary of evidence shows. However, we conclude that the adjustment disorder suffered by Mr Lever from the end of December 2004 relevantly resulted from his failure to be reclassified from 2001 onwards. That failure materially contributed to Mr Lever’s adjustment disorder. (Hart v Comcare (2005) 145 FCR 29).
156. Mr Lever sought to minimise the impact of his failure to be reclassified during his evidence. For example, he maintained that he did nothing to pursue it in 2004, rather the CPSU did. That is not inconsistent with Mr Tuckwell’s evidence that he tried to deal with the assessment and review for 2003/2004 and 2004/2005 on a number of occasions in 2004 but that Mr Lever did not co-operate. On 12 December 2005 Mr Tuckwell sent Mr Lever the e-mail about that. On 15 December 2005 Mr Clark from the National Secretariat wrote to Dr Smith about the classification issue as summarised earlier. Mr Lever’s reply to Mr Tuckwell refers to that letter. We infer that Mr Lever initiated the letter from Mr Clark. Mr Lever was the very active President of the CPSU at ANSTO. He acknowledged that he provided information about his circumstances for inclusion in that letter. In his summary document accompanying that letter he stated that the proposal for resolution was his. The classification issue was very important to him and as President of the CPSU at ANSTO he was actively pursuing it at that time.
157. We also find that the question of classification was dealt with during the discussion with Dr Smith on 17 January 2005, including the possibility of Mr Lever’s taking a different position within the organisation. That conclusion is consistent with both the evidence of Dr Smith and Mr Lever. It is not necessary to determine the precise content of that discussion or how long it lasted. We do not accept Mr Davies’ evidence on this issue. He was not present, his memorandum is dated 28 February 2005 some six weeks after the discussion and after the compensation claim was made, and goes much further than the evidence of Dr Smith.
158. Subsequently Mr Lever has commenced Federal Court proceedings concerning the issue.
159. Further support for our finding are the comments Mr Lever made to Ms Nasser and Dr Donsworth about the classification issue set out in the summary of evidence above. The issue was also referred to and relied upon in the Applicant’s Statement of Facts and Contentions dated 21 December 2005 filed with the Tribunal.
Conclusion
160. Given our finding that Mr Lever’s adjustment disorder at the end of December 2004 was the result of his failure to obtain a promotion, transfer or benefit in connection with his employment, Mr Lever cannot succeed. He has not suffered an injury within the meaning of the Act. It is therefore unnecessary to address the other issues that arose in this case.
161. The decision under review is affirmed.
I certify that the161 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Josephine Kelly, Senior Member, and
Dr John Campbell, MemberSigned: Ms Preethi Nimmagadda
AssociateDate/s of Hearing 26, 27, 28 and 29 June 2006
Date of Decision 11 September 2006
Counsel for the Applicant Mr David Richards
Solicitor for the Applicant Employment Lawyers
Counsel for the Respondent Mr Ben Dube
Solicitor for the Respondent Australian Government Solicitor
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