Lockett and Comcare (Compensation)
[2025] ARTA 58
•24 January 2025
Lockett and Comcare (Compensation) [2025] ARTA 58 (24 January 2025)
Applicant/s: OWEN LOCKETT
Respondent: COMCARE
Tribunal Number: 2023/7897
Tribunal: Member McLean Williams
Place: Brisbane
Date: 24 January 2025
Decision: The Tribunal affirms the decision under review.
................[Sgnd]............................................
Member McLean Williams
Catchwords
Review of decision of Comcare delegate – employee of the National Disability Insurance Agency – anxious and depressed mood – earlier compensation claim – recovery from condition – fitness for work – workplace performance plan – complaint against Applicant as employee – whether issues raised were ‘reasonable administrative action taken in a reasonable manner’ – Tribunal finds the action taken was reasonable
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Cases
Comcare v Martin [2016] HCA 43
Statement of Reasons
Preliminary
1.On 19 October 2023 Mr Owen Lockett (‘the Applicant’) commenced an Application for Review[1] before the Administrative Appeals Tribunal (‘AAT’) thereby seeking to review a Reconsideration of determination as made on 19 October 2023 by Comcare (‘the Respondent’), which had affirmed an earlier determination[2] to decline liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988(Cth) (‘the SRC Act’ (‘the reviewable decision’).
[1]T1.
[2]As made by Comcare on 4 September 2023.
2.This Application for Review was heard before the AAT over 3 days, comprising 8 - 10 October 2024, inclusive.
3.On 14 October 2024, the AAT ceased operations and was replaced by the Administrative Review Tribunal (‘the Tribunal’).
4.Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised prior to 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
5.These are the Tribunal’s reasons for affirming the reviewable decision.
Background and Chronology
6.At all times relevant to this claim Mr Lockett was an employee of the National Disability Insurance Agency (‘the NDIA’), having commenced with the NDIA on 15 November 2021 as an APS5 Internal Review Officer (‘IRO’). The IRO role required Mr Lockett to review - and adjust as necessary - disability support plans (and thus entitlements) for participants who had been accepted into the National Disability Support Scheme (‘the NDIS’).
7.Mr Lockett has a previously accepted workers’ compensation claim (Claim 1341186/1), for a condition described as adjustment disorder with anxious and depressed mood, sustained during his employment at the NDIS during the first half of 2022 (‘the earlier claim’).
8.As a preliminary matter, Mr Lockett contends that the injuries and psychological condition that are the subject of this Application for Review should be treated as if they are part of the earlier claim. Yet, in a medical report dated 21 November 2022 regarding the medical condition covered by the earlier claim, Dr Brendan Smith (psychiatrist) had opined:
“I am of the opinion that Mr Lockett has basically fully recovered from this condition”.[3]
[3]ST12.
9.Similarly, by way of a medical certificate dated 24 November 2022, Mr Lockett had been cleared for a resumption of normal work duties, from 5 December 2022.[4]
[4]T34, ST27.
10.So too, Dr Ravindra Mutha (psychiatrist) - who examined Mr Lockett, and who has since provided written reports, and oral evidence before the Tribunal regarding Mr Lockett’s most recent condition, has opined that Mr Lockett’s ailment represents a completely new instance of adjustment disorder with anxious and depressed mood, and is not an aggravation of a pre-existing condition.
11.On the basis of the medical opinions expressed by Dr Brendan Smith, Dr Ravindra Mutha, and because of the medical certificate dated 24 November 2022, the Tribunal proceeds on the basis that Mr Lockett’s ailments are not able to be attached to his existing claim (1341186/1) as an aggravation/exacerbation.
12.Mr Lockett returned to work after the earlier claim in January 2023. Ms Natalie Wright was allocated as his Team Leader. Ms Wright, in turn, answered to Ms Shirley Ferguson, who at the time was the Assistant Director of the Internal Review Branch.
13.On 24 January 2023, a Ministerial complaint was received by the NDIA regarding Mr Lockett’s handling of one particular case,[5] to the effect that Mr Lockett had been abrupt and insensitive in his telephone manner when dealing with the parent of a deceased NDIS participant.
[5]T12, p.213.
14.In February 2023, Mr Lockett participated in an annual Performance Plan ‘Check-in’ (referable to his 2022/2023 Performance Plan), with Ms Wright.
15.It is important to note that Ms Wright is based in Geelong in Victoria, and that Mr Lockett was based in Brisbane, such that their interactions were always conducted remotely, generally ‘on-line’, by means of MS-Teams.
16.During the February 2023 Performance Plan Check-in, Ms Wright assessed Mr Lockett’s work performance as “meets expectations”.[6] In her written statement[7] to the Tribunal, Ms Wright indicated that at the time of her giving that rating, Mr Lockett was still requiring significant amounts of assistance and guidance from her. Despite that, Ms Wright felt that no other rating was suitable, given that Mr Lockett had still not completed “Planner Essentials” training at that juncture.
[6]T12, p.217.
[7]Agreed hearing bundle, p.459 of 871, at paragraphs [80] – [82].
17.During his prior 2021/2022 Annual Performance Plan Review, Mr Lockett had been assessed by his former Team Leader and given the lower rating of “developing to expectations”. Displeased with that assessment (particularly given it meant that he would not receive an annual pay increment), Mr Lockett had requested that it be ‘internally reviewed’.
18.On 10 February 2023, Mr Lockett was notified regarding the outcome of the internal review. Ms Emily Dalton, an Assistant Director, Workplace Integrity, confirmed the original decision to assess Mr Lockett as “developing to expectations”.[8]
[8]ST28.
19.In response, on 10 February 2023, Mr Lockett sent an overly lengthy, highly intemperate e-mail to Ms Dalton.[9] By way of example, Mr Lockett’s e-mail included passages such as the following:
“Please pray I never have to rate your work, because your family would have to go without, just as mine did and have because of Erin, and now you.”
and:
“You should resign by tendering your resignation, especially on such a ridiculous comment”.
[9]ST40.
20.On 14 February 2023, and in consequence of the e-mail that he had sent to Ms Dalton, Mr Lockett was issued with a formal direction requiring that he comply with the Australian Public Service Code of Conduct.[10] The Code of Conduct deals with, inter alia, the need for civility in all dealings with others in the workplace.
[10]T12, p.267.
21.On 15 February 2023, Mr Lockett met with Ms Shirley Ferguson to discuss his recent work performance, including the formal direction that had been issued to Mr Lockett on 14 February 2023.[11]
[11]T12, p.270.
22.On 16 February 2023, (and notwithstanding the formal direction he had received on 14 February 2023, and Ms Ferguson’s counselling received on 15 February 2023), Mr Lockett requested another review of his 2021/2022 Annual Performance Plan Review, this time from the Merit Protection Commissioner.[12]
[12] T5, p.33.
23.On 22 February 2023, another Ministerial Complaint was received by the NDIA regarding Mr Lockett’s dealings with another NDIS participant.[13]
[13] T12, p. 58.
24.On 28 March 2023, Mr Lockett sent Ms Wright a template document for her review in her capacity as his Team Leader. Ms Wright considered it to be of an unacceptable standard. Because of that, Ms Wright arranged a meeting with Mr Lockett, again via MS-Teams (Microsoft Teams). What transpired during that on-line meeting becomes centrally important to the determination of this Application for Review, such that the Tribunal will return to the details of their discussion on that date in more detail, further below.
25.On 16 April 2023, Mr Lockett attended a consultation with Ms Saudah Musson-Seedat (Clinical Psychologist). This consultation was the first occasion when Mr Lockett had felt any need to consult with any clinician regarding his mental health since his return to work after the earlier claim.
26.On 27 April 2023, the Merit Protection Commissioner delivered the outcome of the ‘second tier’ review regarding Mr Lockett’s 2021/2022 Annual Performance Plan Review. The Merit Protection Commissioner affirmed the prior decision made by Ms Dalton, as had been previously notified to Mr Lockett on 10 February 2023.[14]
[14]T5.
27.On 2 May 2023, Mr Lockett attended another Annual Performance Plan Check-in with Ms Wright.[15] This Check-in did not require the provision of a formal rating of Mr Lockett’s performance, however at the time Ms Wright recorded that Mr Lockett:
-was still requiring significant assistance;
-had been asked to address his behaviours as regards communication with others after there had been complaints; and;
-was not achieving the number of outcomes expected, having attained only 77% of his adjusted KPI.[16]
[15]T12, p.217.
[16]Statement paragraph 119, (Agreed Bundle p.462 of 871). See also Annexure NEW-3.
28.On 8 May 2023, Ms Wright was advised about another complaint regarding Mr Lockett, from another NDIS participant. Ms Wright then contacted Mr Lockett to inform him that a complaint had been received, and to advise that she would be required to investigate it. Ms Wright also told Mr Lockett she would need to discuss this complaint with him again, once she had a chance to “look into it”. At that juncture Ms Wright also asked Mr Lockett to complete a ‘LEAP module’ (ie: on-line training) regarding interpersonal skills, before having any further contact with NDIS participants.[17]
[17]Statement (Agreed bundle p 461 of 871), paragraphs [114] – [117].
29.On 10 May 2023, a meeting took place between Mr Lockett and Ms Ferguson regarding the most recent complaint that had been received by the NDIA about Mr Lockett. During that discussion, and amongst other things, Mr Lockett was informed that he had not met the expected performance standard as an IRO that would be necessary in order for him to receive another salary increment. Ms Ferguson observed that Mr Lockett was clearly upset by that news.[18]
[18]Agreed bundle, document 13, p. 307. See also statement of Shirley Anne Ferguson (Agreed Bundle
p.259 of 871) paragraphs [142] – [154].
30.On 10 May 2023, Ms Wright also spoke again with Mr Lockett about the recent complaint. This was sometime after Ms Ferguson’s discussion with Mr Lockett, earlier that day. Ms Wright felt that Mr Lockett’s reaction during their conversation was inappropriate, with Ms Wright reporting that Mr Lockett had been argumentative, and had kept raising his voice and speaking over her; such that at one point Ms Wright needed to “raise my voice to get Owen to listen to me”.[19]
[19]Statement (Agreed bundle p 463 of 871) paragraph [127].
31.Ms Wright then organised a further MS Teams meeting with Mr Lockett, for 11 May 2023. This meeting was initially cancelled, after Ms Shirley Ferguson had advised Ms Wright that Ms Ferguson had herself sent Mr Lockett an e-mail; only for Ms Wright’s intended meeting with Mr Lockett to then be re-scheduled, for later on that same day (‘the re-scheduled meeting’).[20]
[20]Statement (Agreed bundle p 463 of 871) paragraphs [128] – [137].
32.The re-scheduled meeting went for nearly an hour, via MS-Teams. Shortly afterwards, Ms Wright sent Mr Lockett a 3-page e-mail,[21] containing her summation of their discussion. These notes were prepared by Ms Wright in the immediate aftermath of the meeting. Perusal of the e-mail[22] reveals a number of issues about Mr Lockett’s work performance had been raised by Ms Wright on 11 May 2023. Ms Wright’s notes contain passages such as the following:
“…It’s been 5 months. I want you to understand that you are receiving feedback every time I send you an issue to fix. I do not believe you can perform the role. This would be evidenced by the amount of feedback I need to provide and the correction you have to do. It is a reason why you have not been able to achieve your outcomes most recently”.
“…There’s a level of responsibility not being taken here and listening to feedback that is not being taken on”.
…”You have said I yelled. On Monday when I informed you that we were looking into the complaint and to further explain why you couldn’t contact participants you kept apologising and told me to contact another participant to vouch against the allegations”.
“…I had to keep repeating myself to clarify if you asked the participant to Google information, asked the participant about her deceased son and kept claiming you did nothing wrong. You exclaimed in that conversation about ‘this being beyond a joke’ and that you were ‘hung and quartered’. I needed to remind you that ‘the complaint is serious’ and ‘that we are speaking with HR’. I apologise if this came across as yelling. You kept speaking over the top of me, and the allegations are very serious.”
[21]Annexure NEW-7 to Ms Wright’s written statement (Agreed bundle p. 484 of 871).
[22]NEW-7, ibid, footnote 21.
33.On 11 May 2023, Mr Lockett’s general practitioner - Dr Lau at the ‘Middle Road Medical Centre’ - issued a workers’ compensation certificate in respect of “Generalised anxiety with stress. Work related stress”. Mr Lockett was thereby certified as unfit for work duties from 12 May 2023 until 26 May 2023.[23]
[23]T34, p.406.
34.On 26 May 2023, Mr Lockett again saw Dr Lau for a review. However, Dr Lau’s notes of that presentation record Mr Lockett as having advised Dr Lau that he was “doing ok”.
35.On 2 June 2023, Mr Lockett again saw Dr Lau, this time reporting that he was ‘coping better’ and wasseeking a clearance from Dr Lau in order to be able to return to work. Medical clearance was provided.
36.Ms Wright again met with Mr Lockett by means of MS Teams on 6 June 2023. Notes made by Ms Wright on 6 June 2023 (also sent to Mr Lockett in an e-mail after the meeting, by way of confirmation) indicate that Ms Wright had discussed further NDIS ‘plan reviews’ that had been sent by Mr Lockett to Ms Wright in draft; and that her perusal of Mr Lockett’s work efforts had identified aspects of the plan reviews that were still very obviously deficient. Ms Wright also made the notation that “I needed to mention that the way you spoke to me was inappropriate this was because of your volume and tone when you repeated that you were doing the work”.[24]
[24]HB9, p.871.
37.On 6 June 2023, Mr Lockett e-mailed Ms Ferguson because he was upset about his meeting with Ms Wright earlier that day. Ms Ferguson first spoke with Ms Wright before responding to Mr Lockett, by way of MS-Teams. After herself reviewing the ‘plan review decisions’ that had been prepared by Mr Lockett that had been the focus of the earlier discussions that day between Mr Lockett and Ms Wright, Ms Ferguson was also able to identify the same deficiencies in the drafts that had been prepared by Mr Lockett; and Ms Ferguson was able to take Mr Lockett through the plan review decisions, and demonstrate the deficiencies to Mr Lockett. Ms Ferguson says that, at that juncture, Mr Lockett “could then see that Natalie’s feedback had been right”, after all.[25]
[25]Agreed bundle p.261 of 871, paragraph [175].
38.By 7 June 2023, Dr Lau had again certified Mr Lockett as unfit for work.[26]
[26]T35, p. 415.
39.On 27 June 2023, Mr Lockett’s psychologist Ms Musson-Seedat provided Mr Lockett with a letter of support. The letter states that Mr Lockett had experienced a traumatic incident in the context of his prior workers’ compensation claim, and that he was able to return to work, albeit Ms Musson-Seedat recommended that this should be as part of a different NDIA team, and under a different Team Leader. Ms Musson-Seedat’s letter expressed that: “when a familiar threat emerged again from his previous traumatic incident in May 2022 he was left feeling very vulnerable, confused and mistrustful”.[27]
[27]T8, ST20.
40.On 7 July 2023, Mr Lockett submitted a Notification of Reported Condition in respect of a condition described as “Generalised anxiety with stress. Work-related stress. Work stress - feels being picked on and victimised”. Mr Lockett also stated that he had first noticed symptoms on 1 April 2022, and elaborated:
“I returned to a new team in March and my Team Leader attacked me over sending a blank template to her. I later discovered I had completed my task but attached the wrong file. I was verbal [sic] attacked, and this led to fear and tears and in me going back in my head to the same situation I was previously in May 2022. And I was again subjected to harsh behaviour from my Team Leader over a complaint. I was asked to take leave. This was 12 May 2023.”[28]
[28]ST22.
41.Also on 7 July 2023, Mr Lockett submitted a Workers’ Compensation Claim[29] in respect of “Generalised anxiety with stress. Work-related stress”, in which Mr Lockett claimed to have sustained both psychological and physical injuries to his “head (brain), shoulders, neck, jaw”. In consequence of:
“I had a call from Team Leader in March that was aggressive and abusive and took me back to my current claim 13411186/1 with previous management being aggressive and challenging. The approach by management took me straight back to previous incidents in the workplace where I had my claim accepted by Comcare. I can not work in the negative and confrontational workplace. It is affecting various parts of my body and recently the stress impacted on my Head (Brain)/Jaw/Neck/Shoulders, and I require physiotherapy treatment and stress relieving massage to assist with return of my previous TMJ”.
[29]T3.
42.In an Event Statement[30] (as drafted by Mr Lockett), Mr Lockett attributes the cause of his condition to two (2) key events:
·28 March 2023, when Mr Lockett claims that his Team Leader Ms Natalie Wright became upset and aggressive with him. Mr Lockett felt that he had been progressing quite well, yet Ms Wright expressed that she was unhappy with his progress, and with the overall quality of his work. Mr Lockett says that the triggering event for Ms Wright’s aggression had been when he had inadvertently sent Ms Wright a blank template document, in lieu of the intended version, that had been completed by him.
·In May 2023, when “things went really bad for me”.[31] Mr Lockett says that Ms Wright had only recently advised him that he was “on track for the end of May to be independent”, and that “Natalie was happy with my progress and my standard of work”,[32] but then “I noted a massive change in my Team Leader communication with me”…. “Then after two (2) days without any contact from my team leader I sensed and knew that something was very wrong. I believe that I must have approached my EL1 wondering what was going on, and if everything was ok. Eventually my Team Leader contacted me and arranged a meeting earlier that day, but changed it to the late afternoon on that Thursday. Let’s just say, that meeting was nothing like I ever had before with Natalie. Natalie commenced with a very harsh tone in her voice saying, “Owen this is very serious’” ….All I know is Natalie was so distant to me, and not at all friendly, or happy with me and believed I was TOTALLY WRONG. She was so aggressive and raised her voice at me throughout the call which was very upsetting Knowing Natalie. Natalie again was saying I have had a complaint against me, and it is very serious. It has been referred to HR, THIS IS VERY SERIOUS OWEN!!”[33]
[30]T33,
[31] T33, p.401
[32] T33, p.401
[33] T33 p.402
43.On 28 July 2023, Dr Lau provided a letter to Comcare specifying that Mr Lockett was suffering from work-related generalised anxiety and stress, and that Mr Lockett had developed temporomandibular joint dysfunction (‘TMJ’), as well as muscular pains and aches around his neck. Dr Lau recommended that Mr Lockett undergo physiotherapy.[34]
[34]T12, p.54.
44.On 15 August 2023, Dr Alastair Gilbert (psychiatrist) provided a report to Comcare stating that he had seen Mr Lockett on two occasions in relation to recent work-related stress, however, was unable to identify any treatable psychiatric condition preventing Mr Lockett from returning to work. Nonetheless, Dr Gilbert recommended that Mr Lockett be moved to a different role within the NDIA.[35]
[35]T13, ST23.
45.On 4 September 2023, Comcare denied liability to pay compensation for Mr Lockett’s claimed ailments, on grounds that any claim was excluded, by reason of section 5A(2) of the SRC Act, because these conditions were suffered as a result of reasonable administrative action, particularised as:
- the provision of regular feedback for improvement from February to May 2023;
- the direction issued on 14 February 2023; and
- adverse findings during the end of year review completed for 2022/2023.[36] (‘the Comcare determination’)
[36]T18.
46.On 6 September 2023, Mr Lockett requested reconsideration of the Comcare determination, on grounds that:
- there had been insufficient investigation of the claim;
- actions by management were not reasonable, as these were instances of ‘bullying’, and ‘aggressive and intimidatory behaviour’;
- Comcare did not consider relevant information;
- Mr Lockett’s performance was satisfactory given his training and experience, and he had either ‘met or exceeded’ all his KPIs. In all events, his work performance had not contributed to his claimed condition;
- his current claim should be viewed as a continuation of his prior claim, for which liability had already been accepted.
47.On 26 September 2023, Ms Musson-Seedat provided a further letter of support for Mr Lockett, again re-iterating her opinion that consideration should be given to placing Mr Lockett in an alternate work team.[37]
[37]T25, ST24.
48.Comcare arranged for Mr Lockett to be examined by Dr Ravindra Mutha (Consultant Psychiatrist). In a report dated 11 October 2023,[38] Dr Mutha diagnosed Mr Lockett as suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Mutha considered this to be another occurrence of the same condition as had been suffered by Mr Lockett in 2022, yet from which Mr Lockett had previously fully recovered, by December 2022.
[38]T27.
49.Dr Mutha also considered that Mr Lockett’s diagnosed condition was attributable to a multifactorial aetiology. The incidents in March and May 2023 were assessed as having made a ‘minor’ contribution; Mr Lockett’s failure to secure a pay rise was assessed as having made a ‘material’ contribution; and performance management by his employer had made a ‘significant’ contribution to the onset of Mr Lockett’s current condition.
50.On 19 October 2023, Comcare issued the reviewable decision amending the description of the claimed condition to “adjustment disorder with anxiety and depressed mood”, yet otherwise affirming the determination made on 4 September 2023 to decline liability, on the same grounds as those given on 4 September 2023.[39]
[39]T30.
Evidence heard during the Tribunal hearing:
51.During the review hearing conducted over the period 8 – 10 October 2024, the Tribunal received oral evidence from the following:
·The Applicant, Mr Owen Lockett;
·Ms Emily Dalton;
·Ms Natalie Wright;
·Ms Shirley Ferguson; and
·Doctor Ravindra Mutha.
Mr Lockett’s Evidence:
52.Mr Lockett contends that he was caused to decompensate in consequence of three (3) incidents,[40] which he submits amount to “aggressive and inappropriate negative behaviours”,[41] that are unable to be categorised as ‘reasonable administrative action taken in a reasonable manner in respect of’ his employment. These were:
- Firstly, on 28 March 2023 “in relation to a blank decision template”;
- Secondly, over the period 8 May to 11 May 2023,[42] when “Natalie approached me and said that “I need to speak to you”. And that’s when she then called me, and again hugely aggressive. Going on about me making poor decisions, attacking clients, mentioning her dead son [redacted]”;[43] and
- Thirdly, on 6 June 2023 when “I’ve met with Shirley – with Natalie. As cold as ice. I actually saw her like Mother Theresa, a fantastic person who was helping and the next minute she’s turned into the evil stepmother in a heartbeat”. [Q: That’s what caused you to ultimately decompensate?] -- “100 per cent”.[44]
[40]Transcript, 8 October 2024, p.7
[41]Transcript, 8 October 2024, p. 7 line 44.
[42]Transcript, p.11, line 29
[43]Transcript, p. 12, lines 32 – 35.
[44]Transcript, pp. 17-16, lines 45 / – line 1.
The Blank Template Incident:
53.Mr Lockett says that, after a team meeting[45] on 28 March,[46] Ms Wright had requested a ‘one-on-one’ meeting.[47] Mr Lockett says that it is contextually important to “bear in mind this is the first start to my training that I should have done 18 months prior. I was never taught. And that is a big bearer on what’s occurred through this whole process”.[48]
[45]Mr Lockett later changed his evidence, and said that there had not been any team meeting prior to his one-one-one meeting with Ms Wright: Transcript 8 October 2024, pp. 11 - 12, lines 45 / - 01.
[46]Transcript, 8 October 2024, p. 8 line 21.
[47]The one-on-one meeting was similarly conducted on-line, by means of MS-Teams.
[48]Transcript, 8 October 2024, p.8, lines 23 – 25.
54.In relation to the on-on-one meeting, Mr Lockett claims:
“It was this meeting that shook me to the core and affected my mental health and commenced my new physical injuries, and current injuries that were being treated to be further exacerbated. It was in that meeting, before I knew what was going on, I was immediately and aggressively inappropriately spoken – and negatively spoken to. I was berated. I was belittled. I was abused and brought to tears. Left feeling numb all over, confused and worried. I regressed badly, that I thought I was in a dream”.[49]
…
“She’s saying, ‘One step forward; two steps back. You are meant to be independent. Why are you like this? Why is it – why are you not doing what you’re supposed to do? And a whole conglomerate of things.
[Q: Was there any context for any of that? Did she just ---?] --- I sent a blank template and it just came straight off from left field…/ The reason for this team meeting to be called urgently, because I accidently sent Ms Natalie Wright a blank decision template instead of the completed version of my template. Ms Natalie Wright’s demeanour and attitude was none like I’ve ever seen before, and when I had been with – ever before when I’d been with her. It was as if she was influenced and had some other different agenda for me, and she was very angry and aggressive for the first time. And I honestly swear on the bible – not that I’m religious as such – Natalie is a fantastic person”.[50]
[49]Transcript, 8 October 2024, p. 8, lines 34 – 41.
[50]Transcript, 8 October 2024, p.9, lines 06 – 33.
55.Mr Lockett also says that Ms Wright’s ‘strong demeanour’ on 28 March 2023 caused him an ‘emotional reaction’,[51] and to experience ‘flashbacks’[52] to what had happened as part of his earlier accepted Comcare claim, such that “from that very event I then rang my psychologist because I hadn’t seen her for three months”. In that context an appointment was made by Mr Lockett to see Ms Musson-Seedat, on 6 April 2023.
[51]Transcript, 8 October 2024, p.10, line 1.
[52]Transcript, p.11, line 5.
56.Mr Lockett further contends that Ms Wright having “inappropriately and aggressively” spoken to him on 28 March 2023 was a matter that was made all the worse by reason that “basically I was still on a return-to-work program. I was still being treated under my psychologist”.[53]
[53]Transcript, p. 11, lines 11-12.
The Second Incident (8 - 11 May 2023):
57.Mr Lockett says that, on 8 May 2023, “we had a meeting for a lady moving onto a new team”, and:
“…at the end of that Natalie approached me and said that, ‘I need to speak to you’. And that’s where she then called me, and again hugely aggressive. Going on about me making poor decisions, attacking clients, mentioning her dead son, (Redacted). A whole host of things. And, once again, I was jelly in the legs, nervous, to a point where I end up taking to the toilet and I was just a blithering mess in the stomach.
[All right?] --- So, in that meeting there she abused me.[54]
[54]Transcript, 8 October 2024, p.12, lines 20 – 39.
58.In relation to the remainder of the specified period, Mr Lockett claims that after 8 May 2023:
-“I had to converse with my executive director, Shirley, because Natalie would not respond to any of my e-mails”;[55]
-“I then contacted Shirley[56] and said, ‘What’s going on?’ And Shirley says, ‘There was a complaint made against you’.[57] Mr Lockett was then told by Ms Ferguson “Not to contact Natalie because she’s doing a review”;[58]
-Then I think it was the third day, Natalie had advised me we were having a 9.30 or 10 o’clock meeting. I was waiting and then next minute I got a meeting cancellation, and it was made for then 12.30 or something like that in the afternoon. It was at that meeting that she then again went down the same path as she did last time”;[59]
-In relation to 11 May 2023, Mr Lockett said: “I think the same thing occurred in the morning and I’ve just said, ‘I’ve had enough’. That’s right, Shirley rang, or I rang Shirley, or e-mailed Shirley, and said, ‘I am leaving the – I am having to go to the doctors,’ and I think that’s where she ended up saying from that, ‘Go to your doctors,’ because I had to go and get a WorkCover certificate. So that’s where that started, I think.[60]
[55]Transcript, 8 October 2023, p. 13, lines 21 – 23.
[56]Shirley Ferguson.
[57]Transcript 8 October 2024, p. 13, lines 40 – 41.
[58]Transcript. p.14, line 41. See also p.15, lines 01 – 04.
[59]Transcript, p. 15, lines 06 – 10.
[60]Transcript, 8 October 2024, p. 15, lines 32 – 37.
The Third Incident (6 June 2023):
59.The chronology revealed in the documents shows that Ms Lockett was away from work under cover of Dr Lau’s medical certificate from 12 May until 26 May 2023, before returning to work at his own request on 6 June 2023. Mr Lockett claims that the third event causing his condition occurred that same day. In relation to the events of 6 June 2023, Mr Lockett says:
-“I returned, I think it must have been the two weeks [after going off work], and that’s when there was another row with Natalie”;[61]
-“I returned on 6 June, and I could see that nothing’s changing. She’s still upset, still talking about me – talking about (Redacted) and how bad I’ve been as an operator and all this sort of rubbish, and I still wasn’t even trained”.[62]
…/
-“I’ve met with Shirley – with Natalie. As cold as ice. I actually saw her like Mother Theresa, a fantastic person who was helping, and the next minute she’s turned into the evil stepmother in a heartbeat”.[63]
[61]Transcript, p.16, lines 24-25
[62]Transcript p.16, lines 27-30.
[63]Transcript, p. 16, lines 45 – 47.
Ms Emily Dalton
60.Ms Dalton is the Assistant Director, Workplace Integrity within the Human Resources section of NDIA.
61.Ms Dalton became involved with Mr Lockett’s matter only after he had sought an internal review of a decision to assess Mr Lockett during his 2021-2022 annual performance appraisal as “developing to expectations”, with the result that Mr Lockett became ineligible to receive a salary increment in 2022. As indicated in an earlier part of these reasons, Ms Dalton’s review decision affirmed the correctness of the original assessment.
62.Mr Lockett put it to Ms Dalton that he had completed 200 plan review files[64] in five months, or an average of eight per week, in circumstances in which he was only expected to complete 3.4 files, per week.[65] Here, the obvious inference that Mr Lockett wished to draw from this was that he was a “high performer”. Ms Dalton acknowledged that she had previously received and had considered Mr Lockett’s submissions about his exceeding the quota prior to making her decision affirming the original assessment:
“Mr Lockett provided me with lengthy explanations of what he viewed demonstrated high quality work. That was the point that the manager had based her decision on; rather than a strict number, it was the quality of the output being produced, and that is what led her to making a performance rating of developing to expectations”.[66]
[64]Referred to by Mr Lockett in his evidence as “KPIs”.
[65]Transcript, 9 October 2024, p. 68, lines 11 – 16.
[66]Transcript, p.69, lines 27 – 33.
63.Mr Lockett put it to Ms Dalton that any concerns regarding the quality of his work were not his fault, and any concerns about the quality of his work were entirely attributable to a failure by the NDIA to provide him with sufficient training: “So, were you aware I was not given training?”[67] To this, Ms Dalton responded:
“So, yes, Mr Lockett, you made me aware of that in our early discussions. However, on review of the material that you and your manager provided, I determined that, while the strict training pattern may not have been followed, there had been training provided”.[68]
[67]Transcript, p.70, line 38.
[68]Transcript, p. 70, lines 43 – 48.
Ms Natalie Wright
64.Natalie Wright was assigned as Mr Lockett’s Team Leader after Mr Lockett had re-joined the Internal Review Branch, after being medically cleared to return to work from the earlier claim.[69]
[69]Transcript, p.77 line 44.
65.All of Ms Wright’s interactions with Mr Lockett were conducted remotely, by way of either MS-Teams, by telephone, or via e-mail.[70]
[70]Transcript, p.78, lines 08-09,
66.In response to Mr Lockett’s claims regarding her role in the onset of his condition, Ms Wright’s evidence before the Tribunal was as follows:
The ‘blank template’ incident on 28 March 2023:
67.On what was eventually[71] agreed as having been 28 March 2023, Ms Wright says that she had received an e-mail from Mr Lockett attaching what he claimed was a completed decision template, for review by Ms Wright. Yet, when Ms Wright had opened the attachment, she found it to be an entirely blank template.
[71] Mr Lockett initially described the condition as having started on 1 April 2023.
68.During a subsequent MS-Teams meeting to discuss it, Mr Lockett quickly apprehended that he had inadvertently sent Ms Wright the wrong template, such that the intended version was sent through by him, instead. However, even after receiving the intended document, Ms Wright still considered it to be inadequate: “The quality of the work was poor. The document seemed rushed, and was lacking in details”.[72] During their conversation on that occasion Ms Wright spoke with Mr Lockett “about his respect for others and attention to detail”[73] and the “tone of Owen’s communications”,[74] and queried Mr Lockett as to whether “he was dedicated to the role and whether he wanted to be an IRO”.[75]
[72] Statement (Agreed bundle p. 460/871) paragraphs [97] – [98].
[73] Statement, paragraph [100]
[74] Statement, paragraph 101]
[75] Statement paragraph [102]
69.Ms Wright denied speaking to Mr Lockett in a manner that was either aggressive, or inappropriate:[76]
“…because I would be talking about providing feedback and not seeing consistent progress”; and
“I would not have been angry or aggressive. I’d be – I would be expressing disappointment, but not coming across with those actions or intentions”;
[76]Transcript, p. 78, line 34, also line 43.
70.Ms Wright confirmed that she had said words to the effect that Mr Lockett was seemingly ‘taking one step forward, two steps back’, and that she had very likely also said: ‘you are supposed to be independent’.[77]
[77]HB, p.624.
71.Later, when under cross-examination by Mr Lockett, Ms Wright confirmed that she now considered 28 March 2023 as affording one clear occasion on which she had felt it necessary to raise issues with Mr Lockett regarding his failure to progress, in terms of his training attainment, and about the overall quality of his work;[78] and that Mr Lockett had obviously become quite upset upon being told these things.[79]
[78]Transcript, p. 95 line 14.
[79]Transcript, p. 96, line 17.
72.In relation to Mr Lockett’s contention that he had mistakenly sent Ms Wright a blank template, in lieu of the one that had been intended (such that the extent of her criticism at that time was neither fair, or warranted), Ms Wright said that, even after she had seen the intended version:
“..still, the document was – quality was poor, but I did appreciate that it had been completed more than I initially thought”.[80]
[80]Transcript, p. 79, lines 18 – 20. See also Transcript p. 82, lines 27 – 29.
The second incident (8 – 11 May 2023):
73Ms Wright denies having shouted at Mr Lockett on 8 May 2023, or on either of 10 May, or 11 May, either.[81] Ms Wright says that during her discussion with Mr Lockett in the aftermath of her having investigated the complaint that had been made against Mr Lockett by the mother of a deceased NDIA participant:
“I had spoken to the participant. It was quite serious allegations from the participant about Mr Lockett’s behaviour. So after I had spoken to the participant, I asked Mr Lockett about his actions during that interaction with the participant and I gave my version of what the participant had told me, and at that instant, Mr Lockett raised his arms, started raising his voice and saying that he’d already been hung and quartered, asked about a recording of the conversation, and that was quite unreasonable when I was just talking about the outcome of my complaint investigation.[82]
…/
[Q: Ms Wright [in your statement][83] you say ‘At one point I needed to raise my voice to get Owen to listen to me’. Are you in a position just to explain anything further to the Tribunal about what you mean in that paragraph?]:
……“Owen was unreasonable in his reaction to [my] talking to him about the interaction. To get a word in, I had to ask Owen to listen, if I could talk. This was not an uncommon occurrence, but this was obviously a heightened situation. I do not recall yelling, but I did need to ask Owen to listen”.[84]
[81]Transcript, p. 79, lines 29 – 35.
[82]Transcript, pp. 79 – 80, lines 46 - / 07.
[83]Paragraph 127
[84]Transcript, p.80 lines 14 – 19.
74It was put to Ms Wright by Mr Lockett that when the matter of the complaint against him had been raised by her, she had said words to the effect of: “This is serious. How dare you go to a client and talk about their dead son, Owen”. In response, and other than to agree that she had said words to the effect “this is serious”,[85] Ms Wright did not agree that she had castigated Mr Lockett in the manner now alleged.[86]
[85]Transcript, p. 98, line 18.
[86]Transcript, p.99 line 14.
75During further questions put to Ms Wright by the Tribunal, the following exchange took place:
[Q: Given the amount of training that Mr Lockett had received, was his decision-making, in your estimation, adequate for a person at his stage of development?] --- “No, it wasn’t”.
[Q: All right. Was this an issue that you were raising with him?] --- “Yes. I raised quality issues throughout March with Mr Lockett”.
[Q: Were other people - at a similar stage of their development as Mr Lockett - able to make decisions without the need to raise issues about performance?] --- Quality issues would be raised, but not to the extent that I was raising it with Mr Lockett”.[87]
[87]Transcript, 9 October 2023, p.105, lines 29 – 41.
The Third Incident (6 June 2023):
76In relation to 6 June 2023, Ms Wright says that she had again met with Mr Lockett by way of MS-Teams to discuss aspects of Mr Lockett’s work that she had been reviewing. In an e-mail[88] sent to Mr Lockett by Ms Wright at 12.03pm confirming their conversation, Ms Wright wrote, in part:
“I have not received any desktop review for the other 2 cases allocated to yourself since yesterday. You mentioned that you have made those decisions and that we would be discussing them in the case discussion at 1.30pm This is not what was discussed yesterday or outlined in how I would be supporting you. This is when you stated that you are doing them and that you had an errand at home to attend to. I needed to mention that the way you spoke to me was inappropriate this was because of your volume and tone when you repeated that you are doing the work. You mentioned that you had the technical advice request all entered and ready to go. I mentioned that continuing on with decisions without the approval of your team leader creates extra work for you if that is not the correct decision. This is when you mentioned that this is clearly not working and that you are not able to do the work because I was against you. I re-iterated that I am here to support you and that I need to see your work, in order to provide the support”.
[88]Annexure NEW-9 to Ms Wright’s statement of evidence: Agreed Bundle p.489 of 871.
Ms Shirley Ferguson
77At the relevant time, Ms Shirley Ferguson was the NDIA Assistant Director – Internal Review, responsible for leading NDIA Team Leaders ‘onboarding’ and training Internal Review Officers as part of the NDIA “New Starter Team”. Ms Ferguson was therefore senior in the organisational hierarchy to both Ms Wright, and Mr Lockett.
78In her statement before the Tribunal, Ms Ferguson noted that Mr Lockett had commenced on the New Starter Team on 15 November 2021 for training, and had been moved to a Business as Usual ‘Home Team’ on 10 January 2022, only after Mr Lockett having been certified - on 4 January 2022 - as able to make independent review decisions “with caveats and a lot of support”.[89]
[89]Ms Ferguson’s Statement (dated 27 February 2024), Agreed hearing bundle, p.249, paragraph 39.
79Ms Ferguson provided an e-mail that became Exhibit 2 in these proceedings. Exhibit 2 reveals that on 23 December 2021, a Mr Gavin Jeremiah had e-mailed Mr Lockett, congratulating Mr Lockett for having now completed most of his core competencies, and expressing that he was able to make decisions independently, with some caveats. Mr Lockett also responded to Mr Jeremiah’s e-mail (and had CC’d Ms Ferguson during his response), expressing that he was “excited to move to a non-gated process”.[90]
[90]Exhibit 2.
80Ms Ferguson is aware that Mr Lockett was absent from work during part of 2022 due to a prior accepted workers’ compensation claim, such that when he returned to work, he was placed on a six week return to work plan,[91] dealing with simpler, ‘APS4’-level cases.
[91]Statement paragraph [52].
81At that time, and although strictly unnecessary given that the training syllabus had been modified in the intervening period, it was also agreed that Mr Lockett would be allowed to undertake Planner Essentials training,[92] and would participate in a “condensed version of the gated process, where his work was checked by his team leader”.[93] Natalie Wright was also assigned at that stage as Mr Lockett’s Team Leader.
[92]Ms Ferguson’s evidence was that Mr Lockett undertook 13.5 hours of Planner Essentials Training on 21-23 February 2023.
[93]Paragraph 45.
82Mr Lockett’s return to work plan required that he complete 2.75 ‘outcomes’ per week for the first three weeks, increasing to 5.5 outcomes by the end of the next three weeks, as “by that time he was expected to be making confident and independent decisions as Owen had been provided with significantly more training and intensive support than his peers”.[94]
[94]Paragraph [55].
83As to Mr Lockett’s repeated contention before the Tribunal that he had “never been trained” - such that he “had been set up to fail” - Ms Ferguson said the following when before the Tribunal:
“Owen, I would like to state that you did the six-week training, and you were doing decisions, so you must have been trained to be able to do those decisions….You went through the six-week training along with your peers. You could not have done internal review decisions without training. It is a very complex role”.[95]
[Q: Ms Ferguson did Mr Lockett receive the standard training that all other independent decision makers are given?] – “Mr Lockett received the standard training that all other independent decision makers are given in the first instance, in that first six weeks, and then, in my opinion, once Mr Lockett came back to our team, Mr Lockett received more intensive one-on-one training than any other person who has ever come through the new starter program or team”.[96]
[Mr Lockett: Now, would that be because I wasn’t trained appropriately, and I wasn’t ready?] -- No. That’s because you found it very difficult to take on feedback, and you did not consistently implement the feedback that was given to you, and so we were unable to then – we put you back onto the modified version, which meant you were no longer making independent decisions, and we were unable to deem you suitable to make independent decisions from that point on”.[97]
[95] Transcript, 9 October 2024, p.138 lines 39 - 46.
[96] Transcript (9 October 2024) p.140 lines 29 – 35.
[97] Transcript, (9 October 2024) p. 140, lines 39 – 45.
84Ms Ferguson further observed that Mr Lockett continued to use the ‘condensed new starter template’[98] typically reserved for use only by new starter trainees; and also said that Mr Lockett never managed to progressed beyond the condensed template, “because he was not progressing as expected”.[99]
[98]T12, p.144-147)
[99]Paragraph [59].
85In relation to Mr Lockett’s failure to progress in his development as an IRO, Ms Ferguson noted that:
-Every decision made by Mr Lockett required considerable feedback from his Team Leader, Ms Wright;
-Ms Wright would provide feedback in writing, yet in subsequent decisions prepared by Mr Lockett the advice given to Mr Lockett in the prior feedback had not been followed;
-In the 24 weeks that Mr Lockett was at work as part of the team lead by Ms Wright and overseen by Ms Fergusson, Mr Lockett had completed only 79 decisions, albeit only with intensive support, in circumstances in which he was expected - as an appointed APS5 - to achieve 92.95 decisions over that time-frame;
-Ms Ferguson had wanted to be sure that the feedback that Ms Wright was providing to her regarding Mr Lockett’s failure to progress was accurate. Because of this, Ms Ferguson also periodically checked Mr Lockett’s work for herself, and she provided additional feedback to Mr Lockett, as well. Ms Ferguson’s further checking only confirmed the nature of the problems that had already been described to her by Ms Wright regarding the deficiencies in Mr Lockett’s work.
-Ms Ferguson summarised the concerns with Mr Lockett’s work performance in the following terms:
a.The general quality of Mr Lockett’s work was ‘poor’;
b.Mr Lockett required daily intensive support, far in excess of the amount of support that was to be expected for any Review Officer who had already received the amount of training given to Mr Lockett, and who had, by now, been working in the role for 18 months;
c.Mr Lockett’s communication with participants and stakeholders was a concern, such that some cases needed to be taken away from Mr Lockett “because of the high risk to the participant and the agency if he continued”;[100]
d.Mr Lockett was not meeting his expected output.
e.Mr Lockett did not generally either accept (or seek to adjust his efforts in response to), feedback that had been given to him;
f.When provided with feedback, Mr Lockett did not show respect for management, and was “defensive and combative in his approach”.[101]
[100]Statement paragraph [78].
[101]Statement paragraph [79].
86In addition to the aforementioned issues, Ms Ferguson reported that the NDIA had received a number of complaints about Mr Lockett in early 2023, and that a formal direction[102] had needed to be given to Mr Lockett regarding an intemperate e-mail that he had sent to Ms Emily Dalton, the Assistant Director of Workplace Integrity.
[102]T12, p.267.
87As to complaints from NDIS participants, Ms Ferguson stated that Mr Lockett “received considerably more complaints”[103] than did any other Internal Review Officer, and “it reached a point where I considered it a risk for him to talk to participants”,[104] as “participants complained that he did not listen, was dogmatic, would talk over people, was argumentative and rude and had not researched information before he spoke with them”.[105]
[103]Statement paragraph [88].
[104]Statement paragraph [96].
[105]Statement paragraph [101].
Medical Evidence
88The Medical opinion evidence available to the Tribunal referable to this claim is as follows:
·a psychology report from Ms Saudah Amina Musson-Seedat (Exhibit One);
·the reports and oral testimony of Doctor Ravindra Mutha;
Ms Musson-Seedat
89Ms Musson-Seedat was not called by Mr Lockett to give any oral evidence, by reason of Ms Musson-Seedat being away, overseas. Nonetheless, the Tribunal still received a short generic report from Ms Musson-Seedat, dated 8 October 2024 (Exhibit One).
90Ms Musson-Seedat notes that she had first seen Mr Lockett for treatment sessions in relation to his prior accepted claim in 2022, and had then seen Mr Lockett again on 6 April 2023. On 6 April 2023, he was “visibly distressed, confused and angry about an event that took place during the period from 28 March 2023 until June 2023”. This event was “followed by other events that occurred in the following weeks”. Ms Musson-Seedat was of the opinion that Mr Lockett’s symptoms in 2023 met the DSM-5 criteria for an adjustment disorder with mixed anxiety and depressed mood.
91Ms Musson-Seedat’s report (and her hand-written treatment notes) contain no other information regarding the causes for Mr Lockett’s 2023 condition. Ms Musson-Seedat does however express in her report that Mr Lockett’s presenting symptoms after 6 April 2023 “have no doubt been impacted by his experiences of incidences that happened previously at his work from the beginning of his [earlier] claim and is thus a continuation of the initial claim”.[106]
[106]Exhibit One
92Ms Musson-Seedat’s opinion that Mr Lockett’s symptoms are a continuation of his prior accepted claim is not accepted by the Tribunal. Her opinion in that regard is outweighed by the other medical evidence, as previously identified by the Tribunal in paragraph [11] of these reasons.
Doctor Ravindra Mutha
93Doctor Ravindra Mutha, a consultant psychiatrist, conducted a clinical examination of Mr Lockett by means of a ‘telehealth’ assessment on 20 September 2023. Dr Mutha subsequently provided a report dated 11 October 2023.[107]
[107]T27.
94Doctor Mutha reported that Mr Lockett had told him that he had commenced working for the NDIA on a full-time basis in November 2021, yet had experienced bullying by his EL1 and EL2 resulting in Mr Lockett taking intermittent leave from May 2022, and there being an accepted Comcare claim for adjustment disorder with anxious and depressed mood.
95Mr Lockett also informed Dr Mutha that he had returned to work at the NDIA in a different team in January 2023, as an Internal Review Officer. Mr Lockett advised Dr Mutha that initially, he was getting on well with his new Team Leader, yet “traumatic memories of being with my previous team were retriggered” in March 2023, after his Team Leader (who had previously been very supportive), became upset and angry, immediately after he had inadvertently sent a blank template document to her for review. Mr Lockett noted that his Team Leader kept saying that “it’s not good enough”; “you should be independent, and your work is not good enough”; and that he was “taking one step forward and two steps backwards”.
96Following this incident Mr Lockett reported to Dr Mutha that he had started to experience anxiety symptoms, including his feeling numb in his thighs, heart pounding and heavy breathing. He reported feeling apprehensive, sad, and lonely, and told Dr Mutha “I was being alienated, again”.
97Next, Mr Lockett told Dr Mutha that in May 2023, he had noticed a significant change in his Team Leader’s communications, as she did not return his messages for a few days. Such was his level of concern about this that he contacted his EL1. Subsequently, his Team Leader did make contact, and she arranged a Teams meeting, during which Mr Lockett had been told that a complaint had been received about him that was “very serious”, and he was accused of being unprofessional and rude when dealing with the mother of a NDIS client. Mr Lockett told Dr Mutha that his Team Leader became aggressive, and had raised her voice, which he described as being the final trigger resulting in his needing to take further leave from work.
98In terms of Mr Lockett’s presenting complaints, Dr Mutha noted that Mr Lockett described a gradual deterioration in his mental health since March 2023, and was currently experiencing symptoms of numbness in his lower limbs, a pounding heart, and muscle tension in his head, jaw and neck, as well as disrupted sleep, reduced motivation, poor energy, being irritable, arguing with his wife, and feeling withdrawn, not wishing to be around anyone, having a low mood and feeling sad. Mr Lockett also told Dr Mutha that he had been experiencing teeth grinding due to anxiety, and in May 2023 his dentist had advised that he had temporomandibular joint (TMJ) disorder.
99After conducting a file review, Dr Mutha noted that Mr Lockett had been subject to counselling regarding work performance issues on numerous occasions between about December 2022 and May 2023; as well as the fact of there being a prior psychiatric report from Dr Brendan Smith dated 21 November 2022, that mentioned that Mr Lockett had previously reported feeling unfairly critiqued, unsupported and bullied, and which had similarly led to symptoms of anxiety, depression and social withdrawal, resulting in Dr Smith having made a previous diagnosis of Mr Lockett having adjustment disorder with anxious and depressed mood, in the context of a “narcissistic injury to his ego”, following a prior critique of his performance at work.
100Ultimately, Dr Mutha diagnosed Mr Lockett as having a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood, which Dr Mutha considered to be a ‘re-occurrence’, due to the successful resolution of Mr Lockett’s previous symptoms of adjustment disorder. Dr Mutha also observed:
There is a possibility of underlying narcissistic traits which will need further exploration [this] makes individuals particularly sensitive to criticism [and] likely to receive it as a personal attack, which can exacerbate stress and emotional turmoil.
… /
Mr Lockett has a pattern of negative work experiences, with a possibility of this to continue in his working career. He would benefit from exploring the possibility of narcissistic traits, considering his personality construct of reacting negatively to constructive feedback/perceived work criticism with marked emotional distress, feeling inferior (expectation of being recognised as superior), and a potential sense of entitlement.[108]
[108]PT27, p.362.
101Dr Mutha also opined that Mr Lockett would not have presented with adjustment disorder with mixed anxiety and depressed mood had he not been ‘counselled’ regarding his work quality and performance on numerous occasions between his return to work after December 2022 and May 2023, and that his underlying narcissistic personality traits may potentially have contributed to the fact of his presenting with symptoms of psychological distress.[109]
[109]PT27, p. 363. PT27, p.365.
102Dr Mutha’s report also opines:
“Mr Lockett perceives bullying by his team leader and being unfairly denied pay rise and unfairly criticised for his work performance despite his perception of having excellent writing skills having served on two boards in the past.[110]
….his adjustment disorder is primarily in the context of cumulative stress of having been counselled on multiple occasions in relation to his quality of work and performance from 23 November 2022 and 11 May 2023 and being counselled on 10 May 2023 in relation to the complaint received around his performance and possibly also due to his being counselled in relation to his behaviour resulting in disciplinary action on 15 February 2023.[111]
[110]PT27, p.364.
[111]PT27, p. 365.
103Dr Mutha prepared a supplementary report, dated 13 March 2024. In the supplementary report, Dr Mutha further opined:
“Overall, in my opinion, Mr Lockett’s personality vulnerabilities include sensitivity to criticism or perceived attacks on his character or integrity, responding defensively or in an aggressive fashion and feeling compelled to clear his name (potentially in the context of fragile self-esteem and vulnerability to perceived criticism). His personality construct indicates a possibility of a strong need for external validation. His self-identity as a fighter for justice who will not give up until his goals are met could indicate a grandiose sense of self-belief.
Based on my initial assessment I had commented about the possibility of underlying narcissistic personality traits which would need further exploration/and treatment and longer-term psychological treatment with need to assess and address underlying personality traits.
I had not diagnosed him with a personality disorder, as a formal diagnosis of personality disorder requires a longitudinal assessment to consider long-term patterns of functioning, the consistency of behaviour across different situations and the degree to which these behaviours cause distress and functional impairment.[112]
[112]Agreed hearing bundle, p.223.
104During the giving of his oral evidence, Dr Mutha also said:
[Q: Doctor, in your view, Mr Lockett has some of these traits, that’s the case?] --- That’s right, yes.
[And in your view, have the fact of Mr Lockett having those traits impacted his perception of events at work?] --- I think that is right, yes.[113]
…/
“…It is possible, that when we have underlying narcissistic traits, we lose the capacity to introspect and analyse our own limitations, and often this is a psychological reaction to underlying low self-esteem”.[114]
[113] Transcript, 10 October 2024, p.183, lines 39 – 44.
[114] Transcript, 10 October 2024, p. 194, lines 12 – 14.
Contentions of the Respondent
105Comcare contends that Mr Lockett’s application for compensation must be refused because it is excluded from eligibility for compensation under the ‘reasonable administrative action’ exception in s.5A(1) of the SRC Act.
Contentions of the Applicant
106Mr Lockett contends that he was never appropriately trained, and that the physical and psychological injuries that he had sustained in the workplace incidents from 28 March until 6 June 2023 were not the result of ‘reasonable administrative action taken in a reasonable manner in respect of’ his employment, because these:
“were aggressive and inappropriate negative behaviours demonstrated and conducted by my Team Leader. These [are] workplace behaviours that are not acceptable behaviours in any workplace. Let alone [towards] a person being returned to work with a severe psychological injury caused by my employer, NDIA, still with treatment provided by Comcare”.[115]
“…what occurred to me commencing on 28th March 2023, was only due to my team Leader losing her temperament, and duties of a mentor and Team Leader. This led to my New Team Leader aggressively and inappropriately negatively attacking me over a DRAFT, ‘Blank Decision Template’. This is the WHOLE issue, my Team Leaders aggressive and inappropriate negative behaviours displayed towards me in the workplace. As stated previously, this attack was in regards a ‘DRAFT Blank Decision Template’ being sent on 28th March 2023. Then in further verbal attacks were in May and June 2023.[116]
“…During the 28th March 2023 incident I was subjected to horrific verbal abuse I was brought to tears. The reckless actions of my Team Leader caused new injuries to recommence. This aggressive and demeaning action was not the actions of a Team Leader that was conducted [as] reasonable administrative action, in a reasonable manner”.[117]
[115] Applicant’s final submissions, p.9
[116]Applicant’s final submissions, p.10, emphasis and capitalisation contained in the original.
[117]Applicant’s final submissions, p.33.
107Mr Lockett also contends that Comcare has to failed to adduce any medical evidence necessary to show that “reasonable administrative action” had caused his injuries.[118]
[118]Consider, for example, Applicant’s final submissions p.10: “Comcare are stating Reasonable Administrative Action caused these injuries”. This statement is made without any supporting medical evidence”. The same contention is raised by Mr Lockett at numerous further points, throughout his final submissions.
Tribunal’s Consideration
108As a preliminary matter, the Tribunal observes that the Respondent is not required to adduce any medical evidence to show that Mr Lockett’s injuries were caused by reasonable administrative action taken in a reasonable manner in relation to his employment. It is beyond the remit of any medical expert to determine whether administrative action is reasonable, or otherwise, for this is a mixed question, of both fact and law. The medical opinion evidence can do no more than diagnose the subject ailment, and then identify the putative factors (referable to employment) that have been the cause for the onset of the diagnosed ailment. Whether the identified causal factors then amount to ‘reasonable administrative action taken in a reasonable manner’ becomes an ancillary question, more properly posed for determination by the decision maker.
109The Tribunal does not accept that Mr Lockett was still part of any return-to-work program, as at 28 March 2023, or in the period after 28 March and up until 6 June 2023. Nor does the Tribunal accept that Mr Lockett was still subject to any regime of active medical treatment when the events under examination transpired. Mr Lockett had obtained a medical clearance for a full return to work from his earlier claim on 24 November 2022. Nor does the Tribunal accept that Mr Lockett was ‘untrained’ (such that it was unreasonable to expect more from Mr Lockett in terms of his work performance). By agreement with Ms Ferguson, Mr Lockett had been on a ‘modified’ work program - with reduced expectations - for the first six weeks after his return to work on a date after 24 November 2022, yet the agreed period of ‘reduced expectations’ had expired well before the events now claimed to have caused Mr Lockett’s injury. As to the dispute regarding the amount of training that had been delivered to Mr Lockett by the NDIA, the Tribunal accepts Ms Ferguson’s evidence, which was to the effect that Mr Lockett had received commensurately more training than had any other IRO, yet despite all the extra training, Mr Lockett’s work was still of a discernibly low quality.
110As a further preliminary matter, Mr Lockett also complains that he has an array of physical injuries that have never been assessed by Comcare - “injuries to head (brain), shoulders, neck and jaw (TMJ)”.
111While it may be speculated that the nominated physical injuries are merely symptoms of the diagnosed psychological condition, to deal with these, the Tribunal is prepared to at least treat these as if they were further discrete injuries: despite the absence of a specific diagnosis of that. Ultimately, the point becomes only moot, because Mr Lockett contends that the claimed physical injuries were also caused by the same interactions with Ms Wright that he has nominated as having caused his diagnosed psychological condition. In this light, the germane issue remains whether the claimed physical injuries are similarly excluded from compensation, because of s.5A(2) of the SRC Act. In this context, all of the claimed injuries may be dealt with at once.
112Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee who is covered by the SRC Act.
113Section 5A and s.5B of the SRC Act together provide the definition of “injury”:
Section 5A
(1) In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B
(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.
…/
(3)In this Act:
significant degree means a degree that is substantially more than material.
114On the basis of the diagnosis provided by Dr Mutha, the Tribunal proceeds on the basis that Mr Lockett has a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. This is an ‘ailment’ for purposes of s.5B, and potentially also an ‘injury’ for purposes of s.14, if not excluded from compensability, because of s.5A(1) of the SRC Act.
115As to the causal factors for this condition, the Tribunal accepts the opinion expressed by Dr Mutha that it has been caused by a number of factors, and that “performance management” (the term used by Dr Mutha) has had a ‘significant’ causal contribution. Those instances of performance management are the interactions between Mr Lockett and Ms Wright which have been nominated by Mr Lockett and which arose on 28 March 2023; over the period 8 – 11 May 2023; and on 6 June 2023. Similarly, the Tribunal accepts that Mr Lockett’s claimed physical injuries were also caused by these same interactions with Ms Wright, as well.
116The Tribunal determines that each of these interactions on the dates identified marks an instance whereupon Ms Wright had raised issues with Mr Lockett regarding the quality of his work, after that work had been submitted to Ms Wright for her review, in her capacity as Mr Lockett’s designated team leader. As such, the Tribunal determines that each of these interactions comprises an “appraisal” of Mr Lockett’s performance, potentially caught by s.5A(2)(a) of the SRC Act. Mr Lockett contends however that none of these appraisals were reasonable, in the sense of their amounting to instances of ‘reasonable administrative action taken in a reasonable manner’.
117If any aspect of reasonable administrative action taken in a reasonable manner is found to have been an operative cause for the condition or conditions now claimed by Mr Lockett, these are unable to be compensated, even if there are also other, parallel causal factors, not ‘touched by’ the reasonable administrative action. In this regard, in Comcare v Martin,[119] the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) unanimously observed:
“The application of the definition of disease in s.5B(1) means that, to have suffered a disease falling within s.5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of an employee’s employment, s.5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers the description of reasonable administrative action.
When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might eve related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from the need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.
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.”[120]
[119][2016] HCA 43
[120] Ibid, at paragraphs [44] – [47].
118The Tribunal also accepts the opinion expressed by Dr Mutha regarding Mr Lockett having “personality vulnerabilities” that give rise to a heightened sensitivity to criticism, that may have impacted his perception of events at work, and which have resulted in a loss of capacity by Mr Lockett to be introspective, and understand his own limitations.
119The only evidence that Ms Wright’s conduct was unreasonable are the assertions now made by Mr Lockett. Ms Wright’s own evidence paints a contrary picture, and reveals that when performance issues were raised by her, Mr Lockett had become argumentative and oppositional, and had attempted to speak over the top of her. In response, Ms Wright had needed to raise her own voice, in an effort to be heard. In the circumstances, that is not considered by the Tribunal to have been “unreasonable”.
120In so far as there is now any conflict in the version of the nominated events given by Mr Lockett and the contrary version of those same events given by Ms Wright, the Tribunal records the fact of its clear preference for the version now given by Ms Wright, and considers that the recollection of events given by Mr Lockett is one that is unable to be accepted as reliable, because of the character traits that have been identified by Dr Mutha, which appear to have coloured his perception of matters.
121The Tribunal concludes that Mr Lockett has a brittle self-perception, and became outraged and overly defensive in his responses to what were no more than warranted critiques of his work performance by Ms Wright. On the balance of probabilities, Mr Lockett appears to have subjectively ‘re-framed’ Ms Wright’s feedback as an indefensible and unwarranted attack.
122Yet, on the basis of its own assessment of the evidence, the Tribunal concludes that Ms Wright had every good reason to raise issues regarding work performance with Mr Lockett, on each of the nominated occasions; and that these exchanges transpired more in the manner as described by Ms Wright, rather than as now perceived and described by Mr Lockett. The Tribunal assesses each of these occasions to have been instances of ‘reasonable administrative action taken in a reasonable manner’ in respect of Mr Lockett’s employment.
Disposition
123The Tribunal affirms the decision under review.
| Date( of hearing: | 8 to 11 November 2024 |
| Date final submissions received: | 3 December 2024 |
| Solicitors for the Applicant: | (the Applicant was self-represented) |
| Solicitors for the Respondent: | Ms Clare Tota, HBA Legal |
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