Lukac and Linfox Armaguard Pty Ltd

[2009] AATA 648

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1984

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARRY LUKAC

Applicant

And LINFOX ARMAGUARD PTY LTD  

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe  

Date28 August 2009

PlaceBrisbane (heard in Townsville)

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member  

CATCHWORDS

WORKERS’ COMPENSATION – Disease – Low grade depressive disorder – Whether condition caused or aggravated to in a material degree by employment – Claimed manipulative behaviour in workplace – Whether liable to pay compensation for condition – Condition not caused or aggravated by employment – Decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

28 August 2009   Senior Member Bernard J McCabe         

1.      Mr Garry Lukac, the applicant, formerly worked for Linfox Armaguard Pty Ltd, the respondent in these proceedings, at that organisation’s Mt Isa office. He initially resigned from his employment on 3 August 2006. His former managers prevailed upon him to return to work temporarily, if only to train his successor. Mr Lukac did return to work for a brief period but he walked out for good several weeks later. He believed he was manipulated by his former managers into returning to work. He sought medical help and filed a claim for compensation for a psychiatric condition. He said he has not been able to work since that point.

2.      Mr Lukac claimed the respondent is responsible for his current condition. He has sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The respondent has declined to compensate Mr Lukac because it considered the workplace and the circumstances of Mr Lukac’s departure from the company did not contribute to the onset or aggravation of any condition. Mr Lukac has asked the Tribunal to reconsider that decision.

The background facts

3.      

Mr Lukac worked for Armaguard for around 16 years prior to his resignation. In latter years, he was the manager of the company’s small operation in Mt Isa. He worked there with two other people at the time of his resignation: his half-brother,

Mr Joe Sabaly, and a woman, Mrs Cheryl Hartley. Although it may not ultimately be relevant to the outcome of these proceedings, I am satisfied from Mr Lukac’s evidence that his appointment of Mrs Hartley was motivated at least in part by his hope that he might develop a closer relationship with her.

4.      While Mr Lukac said in his evidence that he worked hard, he insisted he was happy with his work at Armaguard. He said it was an excellent job, and he made it clear that he took pride in the operation of the Mt Isa office. As he explained in his evidence, he thought of Armaguard in Mt Isa as his operation. He said he enjoyed a satisfactory relationship with his immediate supervisor, Mr John O’Brien, who was the area manager based in Townsville. (Mr Lukac mentioned an incident which caused him to have a cooler relationship with Mr O’Brien in more recent years, but Mr Lukac did not think it was a source of tension in the relationship.) He also had a cordial relationship with Mr Paul Hart, the state security manager in Brisbane.

5.      

In the weeks and months prior to August 2006, Mr Lukac experienced some difficulty at work. He was annoyed at an email that he received from head office asking him to account for the mileage recorded on a vehicle that he used. He said he was also having a particularly difficult time dealing with his half-brother who appeared to be adopting a lax attitude towards company procedures regarding weapons. Mrs Hartley told Mr Lukac that she thought he was being hard on his

half-brother. In any event, on 2 August 2006, Mr Lukac approached his half-brother who was looking morose. Mr Sabaly told Mr Lukac “I just don’t care anymore”, or words to that effect. Mr Lukac said that remark had a profound effect on him. He woke the next morning and wrote out his resignation letter. He showed it to Mr Sabaly. Mr Lukac said Mr Sabaly agreed that he would resign too. The letter of resignation was despatched by email that day. Mr Lukac gave evidence that he expected the company to follow its usual procedure and arrange for someone to arrive with the police to escort him from the premises. He went about his work as usual in the meantime. He said he refused to take calls from people at head office in Brisbane until Mr Hart called during that day.

6.      Mr Lukac said Mr Hart agreed to accept the resignation, and they made some arrangements to deal with his departure. The conversation ended with Mr Hart saying he would speak to him the following day. Mr Lukac said he felt good about his decision – indeed, he felt almost euphoric. Mr Lukac said he thought the office was likely to close permanently following his departure with Mr Sabaly.

7.      Mr Hart and Mr O’Brien flew to Mt Isa the following day. Mr Hart came to see Mr Lukac at home. According to Mr Lukac, Mr Hart suggested it would be a pity if the relationship were to end in this way. He talked Mr Lukac into coming back. Mr Lukac said Mr Hart suggested that Mr Lukac ask Mr O’Brien to give him his job back. When Mr O’Brien arrived later that day, Mr Lukac said he thought Mr O’Brien seemed very upset over what had occurred. They discussed what had happened and Mr Lukac said he agreed to return to work with Mr Sabaly on Monday 7 August.  Mr Lukac said he was surprised to learn subsequently that Mr O’Brien had been instructed to offer him the job, while Mr Hart advised Mr Lukac to propose returning. Mr Lukac thought that was significant evidence of the manipulative behaviour which he experienced. Mr Lukac also recalled some discussion about the future of Mrs Hartley. Mr Lukac said he was under the impression the decision had been taken to dismiss her. When he subsequently spoke with Mrs Hartley, Mr Lukac said he received a strange response that was inconsistent with her being fired. He took this as more evidence of something irregular occurring behind his back.

8.      

Mr Sabaly had a change of heart over the weekend, Mr Lukac said. He told

Mr Lukac he would finish up on Monday 7 August. Mr Lukac reported this news to

Mr Hart over the weekend. Mr Hart rang Mr Sabaly and then called Mr Lukac again. Mr Hart told Mr Lukac that Mr Sabaly said nothing about resigning. Mr Hart and

Mr Lukac had an angry exchange. In any event, Mr Lukac and his half-brother returned to work on Monday.

9.      Mr Lukac said he had a strange day on Monday. He said he felt he was moving very slowly. He said there was another tense exchange with Mr Hart that afternoon, but it was apparent he did not attach any particular importance to that discussion. On that day, or shortly after, he reported that some cash which had been left on his desk had gone missing. He said Mr Hart took the report and agreed to examine the security camera tapes. Mr Lukac said he was told that Mr Sabaly had nothing to do with the disappearance but heard nothing more about it. Mr Lukac felt that was a strange way to leave the issue.

10.     

Several days later, Mr Lukac said he had a startling realisation as he was standing in the office. He realised Mr O’Brien and Mr Hart must have known when they flew to Mt Isa on 4 August that they would succeed in getting him back to work. Why else would they have been able to book and pay for return airfares? He said he felt manipulated. He added that he realised he could not continue to work at Armaguard. He informed his supervisor and he left work there for good on

4 September. He has not worked since.

11.     Mr Lukac insisted at several points in his evidence that the work at Armaguard or the circumstances of his employment were not the cause of any of his difficulties. He said the problem was the way in which he had been lured back to work. He said he understood why the managers might have wanted to keep him at his post; he said he would probably have had the same concern if he were in their position. But he objected to the manipulative tactics he said they employed, which he claimed were also evident in their dealings with Mr Sabaly and Mrs Hartley.

The medical evidence

12.     Mr Lukac was initially seeing Dr Michael Likely, a psychiatrist. Dr Likely diagnosed the applicant as suffering from recurring major depressive disorder. He subsequently changed the diagnosis to adjustment disorder. Mr Lukac does not see Dr Likely any more and he said he is at a loss to understand the diagnosis. Dr Likely accepted the condition was connected to Mr Lukac’s work.

13.     

The respondent arranged for a report from Dr Derek Lovell, a psychiatrist.

Dr Lovell concluded Mr Lukac experienced recurrent major depressive order.

Dr Lovell said the condition was constitutional. He said the onset of the condition was not contributed to, nor aggravated by, Mr Lukac’s employment or the circumstances under which he returned to work in August 2006. Dr Lovell was not available for cross-examination.

14.     The respondent arranged for Mr Lukac to be examined by Dr David Alcorn, a psychiatrist. Dr Alcorn concluded the applicant suffered from a recurrent low grade depression but added the condition was currently in remission. Dr Alcorn said the condition was not caused or aggravated by the events of August 2006. He speculated about whether the pace of the workplace might have been a factor, but I note Mr Lukac insisted he was otherwise happy with his job.

15.     Dr Alcorn also had access to a report of a psychologist, Ms Mara Dall. Ms Dall had concluded Mr Lukac experienced a stress-induced breakdown as a result of his work. Dr Alcorn’s opinion was unchanged after he reviewed that report.

Conclusions

16.     I prefer the evidence of Dr Alcorn over that of Ms Dall and Dr Likely. Dr Alcorn is an experienced and well-credentialed medical practitioner. He is in a better position than Ms Dall to make a diagnosis because he is pyschiatrist. Dr Alcorn’s main report is extensive and prepared with obvious care. He is an independent expert who is in a good position to render an objective opinion. His opinion is consistent with Dr Lovell’s. Dr Likely’s opinion as to diagnosis appears to have changed over time without clear explanation. He appears to have a difficult relationship with the applicant.

17.     I am not persuaded Mr Hart in particular behaved in a manipulative fashion on 4 August 2006. To the extent that he sought to achieve an outcome that suited all of the parties, I find nothing exceptional in his behaviour. But even if he set out to lure Mr Lukac back to work and deployed a degree of charm in doing so, his behaviour is unobjectionable. In any event, I agree with Drs Alcorn and Lovell that the behaviour of Mr Hart as described by Mr Lukac was unlikely to be responsible for Mr Lukac’s condition.

18.     I note that Mr Lukac sent additional written submission to the Tribunal after the hearing had concluded. I have not had regard to those submissions in preparing these written reasons, as the evidence in this matter was closed.

19.     In the circumstances, I am satisfied that the respondent is not liable for Mr Lukac’s current condition. The reviewable decision dated 12 April 2007 is therefore affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:................................[Sgd]..............................................
  Michael Buckingham, Associate

Date of Hearing  18 August 2009
Date of Decision  28 August 2009
The applicant was self-represented.
Counsel for the respondent      Mr C Clark
Solicitor for the respondent      DibbsBarker Lawyers