Lisle and Commonwealth Bank of Australia (Compensation)

[2017] AATA 919

Lisle and Commonwealth Bank of Australia (Compensation) [2017] AATA 919 (22 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1878

Re:David Lisle

APPLICANT

AndCommonwealth Bank of Australia

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:22 June 2017

Place:Sydney

The decision under review, being the decision of the Commonwealth Bank of Australia to reject Mr Lisle’s claim for compensation for severe depression made 23 March 2016, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

COMPENSATION – injury – severe depression – reasonable administrative action – disciplinary meetings – taken in a reasonable manner – injury as a result of the administrative action – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14

CASES

Comcare v Martin [2016] HCA 43

Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463; [2012] FCAFC 21

REASONS FOR DECISION

Deputy President J W Constance

22 June 2017

INTRODUCTION

1. There is only one matter in dispute between the parties in this application. It has arisen in the following circumstances.

2. Since January 2006 Mr Lisle has been employed by Colonial Services Pty Ltd (“the Company”), a subsidiary of the Commonwealth Bank.  The Company trades as Colonial First State.    Mr Lisle is seeking compensation for severe depression, first suffered by him sometime between 1 January 2014 and 16 October 2015.[1] His claim has been made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Under that Act the Bank is entitled to be a party to Mr Lisle’s application as if it was his employer.

   [1] Claim form lodged by Mr Lisle on 5 November 2015; exhibit R1 p.30.

3. On 23 March 2016 the Bank denied liability to compensate Mr Lisle in respect of the claimed condition.[2]

   [2] Exhibit R1 p.146.

4. The Bank accepts that it would be liable to compensate Mr Lisle in respect of his depression but for section 5A of the Act which defines “injury” for the purposes of the Act.  Relevantly, subsection 5A(1) excludes from the definition of injury “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”.

5. The Bank has identified four actions, each of which it says was reasonable administrative action taken in a reasonable manner in respect of Mr Lisle’s employment. The Bank argues that the depression suffered by Mr Lisle was suffered as a result of these administrative actions.

6. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND

7. Mr Lisle is 42 years old.  When he was only 15 he suffered a stroke which left his left side paralysed.  After intensive therapy he regained his speech and the use of his left leg.  His left arm remains completely paralysed.

8. Mr Lisle commenced working for Colonial First State in the call centre of the Adviser Services division.  In this role he was a member of a team responsible for enquiries regarding all the Company’s products and services and for providing online technical assistance.  After some time in another role Mr Lisle was transferred back to the call centre.

9. In 2011 Mr Lisle started to experience feelings of depression.  He sought treatment from his General Practitioner, Dr Critchley.  Mr Lisle does not claim that the depression he now suffers was a result of an aggravation of the condition he suffered in 2011.  He says that he recovered completely from the depression he suffered in 2011.

10. Since approximately 2010 Mr Lisle has worked in telephone customer service roles.  His workplace was in the Sydney CBD.    As he lives outside Sydney this required him to travel on public transport for four hours per day. 

11. In late 2014 Mr Lisle joined a new team and, by agreement with the Company, he started working from home.  On occasions he would travel to the Company’s premises in Sydney for meetings and training.  In this role he was “responsible for responding to customer email enquiries mainly relating to superannuation, investments and insurance.  These can vary from general to in-depth enquiries.  As such, it [was] vital that he [was] across all relevant aspects of the business.”[3]

    [3] Statement of Mr Lisle made 18 January 2016; exhibit R1 p.78.

12. For a period of about six months prior to his working in the role responding to email enquiries, Mr Lisle’s supervisor was Ms Tinapay.  He believes that Ms Tinapay put unwarranted pressure on him in relation to the performance of his duties and was inconsiderate of his disability.  Prior to Ms Tinapay’s supervision his performance results were very good however they deteriorated whilst he was subject to her supervision.

13. When he commenced working in the email section Mr Lisle had a new Manager and a new Team Leader.  He negotiated with them a Key Performance Indicator requiring him to provide 30 email customer responses per day to take into account his disability which reduced the speed at which he was able to type.  By working hard and diligently he was able to meet this KPI.

14. After about four months in his new position Ms Tinapay became Mr Lisle’s Manager once again.  Shortly after being appointed Manager Ms Tinapay increased Mr Lisle’s KPI of email responses from 30 to 42 per day.

15. Mr Lisle described the effect of his work situation as follows:

    38.I felt demoralised when [Ms Tinapay] raised my KPI. I did not know what I was going to do as I was unable to type faster than the speed I was typing when I had my previous KPI.

    39.I found that overall I was unable to meet the new KPI. I think there were around five times when I met the KPI whilst under [Ms Tinapay’s] management. In order to try and meet the new KPI, I started to work earlier and finish later, plus have smaller breaks throughout the day. In light of this, I continued to struggle. I was putting in around an extra five hours a week, which I was not paid for.

    40.I did not want to admit defeat. Right or wrong this KPI was set for me and I wanted to prove that I could do it, or at least try to do it. Quite often [Ms Tinapay] told me that I was not achieving my targets and asked what I was going to do to achieve them. I told her that I could only go so fast and that all I could really do was work more hours.

    41.[Ms Tinapay] eventually moved into a more senior role and became [Mr Cook’s] manager who was my team leader. When this happened I felt even worse because I believed that I had lost any hope of going back to the KPI I had negotiated with [my former team leader and manager].

    42.During the time that [Ms Tinapay] was my direct manager and then later became the overall manager of the area where I worked, I started to have sleepless nights. I found that during the day I was tired and felt anxious and depressed. I was constantly thinking about not meeting my KPIs and how this was going to affect my career development. This also made me feel stressed and under pressure.

    43.In that period I saw Dr Critchley as I was concerned that the medication I was taking for my epilepsy may not be having the full effect because of the stress I was experiencing. During this time I was having seizure related symptoms.

    44.I was also travelling into work one day a week for catch-ups and group meetings during that period. I found this also to be stressful as I was thinking about my work issues on the two hour commute each way.

    45.This whole experience with [Ms Tinapay] made me feel worthless, down, and undervalued. It also made me upset that the KPI which [Ms Tinapay] had set, was rated as only meeting expectation. So for me, the fact that I was not meeting this KPI, indicated that I was just falling short of that rating, despite me putting in more effect than when I had my previous KPI. To me it felt like I had been set up to fail from day one when [Ms Tinapay] changed my KPI.[4]

    [4] Exhibit R1 pp.79-80.

16. During October 2015 two meetings took place between Mr Lisle, Ms Tinapay and Mr Cook who was Mr Lisle’s Team Leader. As these meetings and the circumstances leading up to them are of crucial importance to the decision I have reached, I will set out my findings of fact in this regard later in these reasons.

17. On 16 October 2015 Mr Lisle left work early as he was not feeling well.  He has not attended work since. The Bank does not dispute that since that time Mr Lisle has suffered from depression and that his employment by the Company made a significant contribution to his condition.

    THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)

18. Subsection 14(1) of the Act provides:

    (1)  Subject to this Part, [the Bank] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

19. “Injury” is defined in subsection 5A(1) to mean:

    (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.

20. Subsection 5A(2) provides:

    (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.

21. “Disease” is defined in section 5B:

    (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.

22. “Ailment” is also defined:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).[5]

    THE “ADMINISTRATIVE ACTIONS” RELIED UPON BY THE BANK

    [5] Section 4(1).

23. The Bank argues that Mr Lisle’s depression was suffered as a result of each of the following actions by the Company and that each was “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”:

    ·the meetings held on 16 September 2015 and 30 September 2015 including the discussions which took place at those meetings;

    ·the setting of the targets as to the number of email enquiries per day to be dealt with by Mr Lisle;

    ·the conduct of Mr Lisle’s performance appraisal in 2015.

    THE ISSUES

24. To decide the question of whether the depression suffered by Mr Lisle is excluded by section 5A it is necessary to determine the following:

    (1)Were any of the actions relied upon by the Bank “administrative action taken in respect of Mr Lisle’s employment”?

    (2)If so, was the administrative action “reasonable”?

    (3)If so, was the action “taken in a reasonable manner”?

    (4)If so, was the injury suffered “as a result of” the administrative action?

25. These issues arise in relation to each of the administrative actions upon which the Bank relies.

    THE MEETINGS OF 16 SEPTEMBER 2015 AND 30 SEPTEMBER 2015 AND THE CIRCUMSTANCES LEADING UP TO THEM

    Evidence of Mr Lisle

26. In about September 2015 Mr Lisle formed the view that some team members were achieving productivity targets above 100%, which he regarded as ludicrous. These results were displayed on a notice board on a daily basis. Productivity was determined on the basis of a pre-determined number of emails an employee was required to process in a day.  If this target was exceeded productivity rose above 100%.

27. Mr Lisle was informed by some of his colleagues that an individual’s productivity could be improved by undertaking indexing work. 

28. On 10 September 2015, at Mr Lisle’s request, he was shown how to index emails by another member of the team.  This training was not discussed with, nor authorised by, the Team Leader or the Team Manager.  On that day and the next Mr Lisle carried out some indexing work.  In so doing he allocated emails to various lists for further action – some to himself, some to colleagues and one to the Investigations Team work queue.

29. Mr Lisle indexed 71 emails, 36 of which did not require a response.  Of these 36 he allocated 35 to himself and one to the Investigations Team.  He acknowledged that the allocation to the Investigations queue was done in error and that he had processed that email himself by taking it from the Investigations queue.  He did this even though he was not otherwise involved in processing emails in that queue.  Emails in the Investigations queue were allocated considerable extra time for processing than those in other queues.  Mr Lisle allocated the emails requiring responses to team members other than himself.

30. When asked about the manner in which he allocated the emails he said:

    I wasn’t doing anything specific. I was just wanting to – well, if you say that’s the number but, you know, I was just allocating – I guess I should have paid more attention to what went where but I was just, you know, assigning, you know, a couple of items to myself. You know, obviously I’d assigned too many to myself.[6]

    [6] Transcript 08/03/17 pp-35.

31. Subsequently Mr Lisle was required to attend a formal meeting with Mr Cook and Ms Tinapay.  He was given at least 24 hours’ notice of the meeting.  The meeting took place on 16 September 2015 and was attended also by a support person chosen by Mr Lisle.  Mr Lisle said that prior to the meeting he was made aware that its purpose was to give him an opportunity to provide an explanation regarding his actions in allocating the work to himself and that he was told that he was to attend for a “disciplinary discussion”.[7]

    [7] Transcript 08/03/17 pp-35-36.

32. At the meeting Mr Lisle was told that it appeared that he had intentionally manipulated the data to make it look as though he was performing better than he actually was. He was given the opportunity to explain why he had allocated the items in the way he had. Mr Lisle said that he had no intention of manipulating the data but that he was only thinking about his efficiency and helping out the team. In cross-examination it was put to Mr Lisle that he was not seeking to help the team and that his only concern was his own efficiency or productivity. He replied that by increasing his productivity or efficiency that went towards the team’s “bottom line” and that he believed that “it’s one and the same”.[8]

    [8] Transcript 08/03/17 at p-38.

33. In his statement made 18 January 2016 Mr Lisle said that at the meeting Ms Tinapay made him feel like he was a criminal. He said that he was told where he had “gone wrong” and that he was verging on criminal misconduct and being dishonest. He said that he told Ms Tinapay and Mr Cook that he had made an innocent mistake but that he felt that he was not believed.[9]  He agreed that neither Ms Tinapay nor Mr Cook raised her or his voice during the meeting.[10]

    [9] Exhibit R1 p.80.

    [10] Transcript 08/03/17 p-36.

34. Mr Lisle agreed that at the end of the meeting he was told that his response would be considered, that there would be further investigation and then another meeting would be held to advise him of the outcome. He agreed also that he was told that one possible outcome would be that he would be put on a formal performance improvement plan and that if that was the case it was likely that he would be required to return to work in the office on a full-time basis.[11]

    [11] Transcript 08/03/17 p-41.

35. On 30 September 2015 a second meeting was held. The same people were present. Mr Lisle was given at least 24 hours’ notice of this meeting.

36. At the meeting Mr Lisle was told that his explanation was not accepted on the basis that the fact that he had distributed the valid work items equally amongst the team and allocated all of the invalid items to himself showed that it was not simply a coincidence. He agreed that the findings “didn’t look good”[12] and said that he did not realise the implications of what he had done. He again said that he had never intended to act inappropriately and that he was just trying to do his job as he was shown.[13]

    [12] Transcript 08/03/17 p-45.

    [13] Transcript 08/03/17 p-45.

37. Further Mr Lisle was told that he was being given a formal warning and that further inappropriate conduct could lead to disciplinary action, including termination of his employment. He was also told that he would be placed on a formal performance improvement plan.  He was handed a letter dated 30 September 2015 which stated:

    Your verbal response has been considered. You responded by saying that you did not deliberately create work items for emails which were not required. You also denied the allegation that you deliberately allocated these items to yourself so that it would improve your productivity scores.

    Despite your response, our investigation has found that:

    1.On 10^th & 11^th of September you created 71 work items. 36 of these work items were invalid and did not require a response to the client, for example you created work items for spam emails such as 15091004272. Of the 36 invalid work items you created, you directly assigned 35 of them to you. Of the 35 of legitimate work items, you allocated these equally among the team.

    2.It was also found that you assigned one invalid work item to the investigations queue and assigned it to yourself, with the knowledge that you would receive a higher touch time for this particular queue.

    For these reasons we reject your response that you were not aware of your conduct.

    …

    On this occasion, the decision has been made to issue you with a Formal Written Warning. This conduct will also be considered at your next remuneration review and is likely to affect your STI payment.[14]

    [14] Exhibit R1 pp109-110.

38. When he was told that he was required to work in the office rather than from home, Mr Lisle handed to Ms Tinapay a letter from Dr Critchley.  The letter was dated 24 September 2015 and stated:

    This is to certify that William Lisle is/has been suffering from chronic medical health issues.

    Due to these health concerns, I strongly recommend that Mr Lisle works from home rather than commuting.[15]

    [15] Exhibit R1 p.112.

1. When Mr Lisle delivered the letter from Dr Critchley to Ms Tinapay he informed her that he suffered from epilepsy and that the stress and exhaustion caused by his having to travel to work was impacting on this condition. He also said that he was concerned that his health would deteriorate if he was required to travel to the office on a daily basis.[16] At the time Mr Lisle was travelling to the office in Sydney occasionally in accordance with the arrangement put in place in 2013.  Mr Lisle had not previously notified the Company that he suffered from epilepsy.

   [16] Transcript 08/03/17 p-49.

2. Mr Lisle agreed that when he delivered the letter from Dr Critchley either Ms Tinapay or Mr Cook (and perhaps both) asked him for permission to speak to Dr Critchley about her recommendation that he work from home and her reasons for this.  Mr Lisle stated that he would need some time to consider this request.  He did not give permission for his employer to contact Dr Critchley until 5 November 2015 when he provided a written consent for the company to obtain information from any health professional.[17] This was five weeks after the meeting and three weeks after the last day Mr Lisle attended his employment.

   [17] Exhibit A2.

3. At the second meeting or shortly thereafter Mr Lisle was informed that he would be subject to a formal employee performance plan commencing on 2 November 2015.  This plan was not implemented as Mr Lisle did not return to work after 16 October 2015.

4. Mr Lisle believes that following the second meeting he was “more micromanaged” by Ms Tinapay and Mr Cook than before.[18]  At the time he was continuing to work from home.  When asked to explain this he said that he received telephone calls from Ms Tinapay concerning his performance and various work items.[19]

   [18] Exhibit R1 p.81.

   [19] Transcript 08/03/2017 p-50.

5. On 16 October 2015 Mr Lisle decided that he had “had enough”. [20]About mid-day he sent an email to his employer advising that he was not feeling well and was going home.  He has not returned to work since.

   [20] Exhibit R1 p.81.

   REASONING

   Issue 1:          Were the meetings of 16 September 2015 and 30 September 2015, including the discussions during those meetings, “administrative action taken in respect of [Mr Lisle’s] employment”?

6. In Commonwealth Bank of Australia v Reeve and Another[21] the Full Court of the Federal Court said:

   The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment… Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.

   …

   Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[22]

   [21] (2012) 199 FCR 463; [2012] FCAFC 21.

   [22] Paras. 60 and 62.

7. The first of the meetings was held to inform Mr Lisle of his employer’s concerns as to his doing work involving the indexing of emails, the allocation of some of those emails to his personal queue of work to be done and his responding to those emails with the effect of increasing the recorded level of his performance.  Mr Lisle was given the opportunity to respond to those concerns.

8. The second meeting was to inform Mr Lisle of the result of further investigations by his employer and to issue him with a warning letter.  He was informed of a possible withdrawal of the consent of his permission to work from home.

9. These actions were not in respect of “operational matters” such as were referred to by the Federal Court.  Rather they related directly to the employment relationship between Mr Lisle and the Company and the manner in which Mr Lisle had fulfilled his obligations under his contract of employment.  On this basis I am satisfied that the calling of the meetings and the discussions which took place during those meetings was administrative action in respect of Mr Lisle’s employment.

10. In reaching this conclusion I have taken into account the types of administrative action set out in subsection 5A(2).  These include formal and informal counselling action and formal and informal disciplinary action.  The list contained in this subsection is not exclusive and gives some indication of the type of action which is administrative and in respect of an employee’s employment.

    Issue 2:          Was the administrative action taken in respect of Mr Lisle’s employment “reasonable”?

11. Upon his returning to the office on 14 September 2015 Mr Cook ascertained that:

    ·during his absence Mr Lisle had  indexed incoming emails;

    ·this was work which Mr Lisle had not been requested to undertake and which had not been previously undertaken by him;

    ·of the 71 emails indexed by Mr Lisle, 36 did not require any attention other than to archive them without response;

    ·Mr Lisle had allocated 35 of the emails not requiring a response to himself and had allocated one to the investigation team in error;

    ·Mr Lisle had allocated all of the emails which required a response to team members other than himself.

12. During the four weeks prior to this incident Mr Cook had been discussing with Mr Lisle the need to increase the number of emails he was responding to each day.  The task of indexing was usually done by specified team members other than Mr Lisle.

13. Based on the information before him it was reasonable for Mr Cook to be concerned that Mr Lisle was attempting to improve his productivity figures by manipulating the allocation of work between himself and other members of his team.  He then discussed his concerns with his manager, Ms Tinapay.  They then sought advice from the Company’s Human Resources Department as to the action they should take.

14. Having considered the information available to them, the action of meeting with Mr Lisle to discuss the concerns held by Ms Tinapay and Mr Cook was reasonable.  Having heard Mr Lisle’s explanation for his conduct they decided to hold a further meeting, to issue a warning letter and to advise Mr Lisle of the proposal to place him on a performance improvement plan.

15. Taking into account the circumstances I have referred to above and based on the evidence of Mr Cook and Ms Tinapay, I am satisfied that the action taken was reasonable.

    Issue 3:          Was the administrative action taken in a “reasonable manner”?

16. Mr Lisle was told in advance of the first meeting that he was entitled to have a support person attend with him.  He availed himself of this. Mr Lisle was given the opportunity to explain why he acted as he did.  Ms Tinapay was firm in her manner, but voices were not raised.  The meeting ended on the basis that Ms Tinapay and Mr Cook would give further consideration to the matter.

17. During the second meeting Mr Lisle was handed the warning letter.  When Ms Tinapay received the letter from Dr Critchley stating that Mr Lisle should be permitted to continue working from home, Ms Tinapay immediately requested Mr Lisle’s permission to speak to Dr Critchley to clarify her opinion.  Mr Lisle did not give his consent to this course until 5 November 2015.  In the meantime Mr Lisle was permitted to continue working from home and the employee performance plan was not commenced.

18. The requirement is that the action be taken in a “reasonable” manner, not that it be faultless. Although Mr Lisle was under pressure to improve his performance there is no evidence to suggest that he was unable to deal appropriately with the situation which presented itself at the meetings.  He was an experienced employee of the Company.

19. In these circumstances I am satisfied that the administrative action was taken in a “reasonable manner”.

    Issue 4:          Was the depression suffered by Mr Lisle “as a result of” the administrative action?

    When did Mr Lisle suffer the ailment, being severe depression?

20. It is not in dispute that Mr Lisle suffered a depressive illness in 2011 from which he recovered.  His Counsel confirmed that the present application is not a claim for an aggravation of a pre-existing condition.  It is important to determine the time of the onset of the severe depression the subject of this application as it cannot be said to be “a result of” an event which occurred after the onset.

    Patient Health Summary records from Mr Lisle’s General Practitioners[23]

    [23] Exhibit R6.

21. Clinical notes of attendances in 2011 refer to Mr Lisle’s suffering work-related stress.  However, although he continued to attend the same general practice there is no record of his complaining of stress or depression until his consultation with Dr Critchley on 24 September 2015, eight days after the first meeting, but before the second.  The last consultation before 24 September 2015 was on 16 July 2015 and was not related to any workplace issue.

22. Dr Critchley’s notes of the consultation on 24 September 2015 read:

    needs med cert stating unable to commute, work has been causing lots of stress – see DASS and MH care plan – benefits of counselling explained ++, psychoed re stress and depression and CBT, not interested in medication “on enough”, doesn’t want to see neurologist but will do bloods

23. Dr Critchley referred Mr Lisle to Dr Bosanquet, Psychologist

    ·Mr Lisle next consulted Dr Critchley on 16 October 2015, being the last day he attended work. On that occasion Dr Critchley noted that Mr Lisle had seen Dr Bosanquet on two occasions and had been diagnosed with severe depression.  Dr Critchley noted further that this diagnosis fitted with the review of 24 September 2015.

    Report of Dr Critchley dated 8 October 2016           

24. In her report Dr Critchley stated, in part:

    2. On examination on the 24^th of September 2015, Mr Lisle had a flat affect and slowed responses. The results of a depression, anxiety and stress symptom score indicated severe depressive symptoms, with moderate anxiety and stress symptoms. On the 16/10/2015, when his requests were denied and he felt that he needed to make a worker’s compensation claim in order to address workplace issues, this outcome tool revealed extremely severe depression, moderate anxiety and severe stress.

    3. My diagnosis was major depression relating to workplace stress.[24]

    [24] Exhibit A3.

    Report of Dr Bosanquet, Clinical Psychologist

25. Dr Bosanquet provided a report dated 4 November 2016.[25]  He did not give oral evidence.

    [25] Exhibit A4.

26. Dr Critchley referred Mr Lisle to Dr Bosanquet for treatment of reactive depression, stress and anxiety; Mr Lisle first consulted Dr Bosanquet on 2 October 2015.  In the opinion of Dr Bosanquet “Mr Lisle met full criteria for a diagnosis of Adjustment Disorder with comorbid Major Depression as per the DSM-V.”[26]

    [26] Exhibit A4 p.3.

27. Dr Bosanquet reported further:

    Mr Lisle indicated that [Ms Tinapay] wanted to rescind the offer for him to work from home, and that he was being expected to, once again, travel to the city. He was understandably highly distressed about this and did not feel that he would be able to cope, especially in light of the fact that he needed to be home when his children returned from school.[27]

    [27] Exhibit A4 p.2.

    Finding

28. On the basis of the evidence of Dr Critchley and Dr Bosanquet I am satisfied that Mr Lisle suffered severe depression on or about 24 September 2015 at a time after the meeting on 16 September 2015.

    Would Mr Lisle have suffered the severe depression if the administrative action had not been taken?

29. In Comcare v Martin[28] the High Court considered the causal connection which is required to give rise to the operation of the exclusionary provision of section 5A(1).

    [28] [2016] HCA 43.

30. The Full Court said, in part:

    Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.[29]

    [29] Comcare v Martin [2016] HCA 43, [47].

    Report of Dr George, Psychiatrist

31. Dr George assessed Mr Lisle in July 2016 at the request of the Bank.  He provided a report dated 26 July 2016.[30]   He did not give oral evidence.

    [30] Exhibit R2.

32. In the opinion of Dr George events in his workplace contributed to Mr Lisle’s severe depression. In relation to the effects of the meeting of 16 September 2015 Dr George expressed the following opinion:

    The disciplinary actions taken in respect to the employee creating 36 work items and allocating 35 of these to him when these work items did not require him to respond to the customer was significant. The meeting occurred on 16 September 2015 during which as an employee, he was advised that if these allegations were proven, then, this was likely to impact on his work from home arrangement, was another factor. Mr Lisle explained that a colleague, Ramesh, had shown him how to doing ‘indexing’ and he had added these into his figures. He said that he was made to feel “like a criminal” and he felt distressed by the fact that any disciplinary response by his employer was going to be linked to removing his working from home arrangement. These were significant issues.[31]

    [31] Exhibit R2 p.9.

    Consideration

33. The opinion of Dr George is consistent with the opinions of the treating practitioners, Dr Critchley and Dr Bosanquet, although they did not specifically deal with the question of causation of the particular meetings.  However Dr Bosanquet said that Mr Lisle was “understandably highly distressed”[32] by Ms Tinapay’s wanting to rescind the offer for him to work from home which would require him to travel to and from the city each work day. 

    [32] Exhibit A4 p.2.

34. I have taken into account that Dr Bosanquet diagnosed Mr Lisle as suffering “extremely severe” depression on 7 October 2015 and Dr Critchley’s view that this was consistent with Mr Lisle’s presentation on 24 September 2015, eight days after the first meeting. It may be that Mr Lisle felt anxious and at times felt depressed as a result of incidents in his workplace prior to 16 September 2015.  However it was not until 24 September 2015 that he presented with symptoms which justified the diagnosis of the ailment the subject of his present claim.

35. On the basis of the evidence to which I have referred I am satisfied that Mr Lisle would not have suffered the severe depression he has if the administrative action, being the meeting held on 16 September 2015, had not taken place.

    The other “administrative actions” relied upon by the Bank

36. In view of the conclusion I have reached in relation to the meetings held in September 2015 it is unnecessary that I consider the effect, if any, of the other actions relied upon by the Bank.  These are set out in paragraph 23 of these reasons.  However I do note that the medical evidence indicates that these actions would not meet the causation test set out by the High Court in Comcare v Martin.[33]

    [33] [2016] HCA 43.

    CONCLUSION

37. In summary I am satisfied that the severe depression suffered by Mr Lisle was suffered as a result of his being required to attend the meeting of 16 September 2015 and that the holding of these meetings was reasonable administrative action taken in a reasonable manner in respect of his employment by Colonial Services Pty Ltd.

38. The decision under review, being the decision of the Bank to reject Mr Lisle’s claim for compensation for severe depression made 23 March 2016, will be affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 22 June 2017

Date(s) of hearing:	8, 9 & 10 March 2017
Solicitors for the Applicant:	I Collins, Ian Collins Solicitor
Counsel for the Respondent:	B Kelly
Solicitors for the Respondent:	C Tsekouras, Commonwealth Bank of Australia