Macedo and Comcare
[2010] AATA 1037
•21 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1037
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2982, 2009/1494,
GENERAL ADMINISTRATIVE DIVISION ) 2009/0079 & 2009/3483 Re DANTE MACEDO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, MemberDate21 December 2010
PlaceSydney
Decision The Tribunal affirms the reviewable decisions of 16 June 2008 (2008/2982), 25 November 2008 (2009/0079), 25 March 2009 (2009/1494) and 22 July 2009 (2009/3483).
......................[sgd]...............................
Ms N Bell, Presiding Member
CATCHWORDS – Compensation – psychiatric condition – depressive disorder – injury – aggravation of condition – material contribution by employment – failure to obtain a promotion, transfer or benefit – reasonable administrative action
Safety, Rehabilitation and Compensation Act 1988Hart v Comcare (2005) 87 ALD 341
Mooi v Comcare (1996) 42 ALD 495
Re Carpenter and Comcare [2010] AATA 62
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr M E C Thorpe, Member1. Mr Dante Macedo came to Australia from Peru in 1980 when he was 27 years old. In Peru he had obtained a degree in Economics and worked as an economic planner. When he arrived in Australia he underwent an English course and was later employed as a clerical officer with the NSW Department of Education. In 1992 he joined the Australian Taxation Office, initially as a Level 1 officer and progressed to be a Level 3 officer, working in the complex audit section. In 1994 he was transferred to the Child Support Agency, as a Level 3 officer.
2. Mr Macedo contends that he first suffered from a psychiatric condition in 1999. He has made four applications for review. They concern three incidents in particular which Mr Macedo says gave rise to or aggravated his psychiatric condition:
(a)An incident in October 1999 in which Mr Macedo was allegedly reprimanded for attending training on a flex day. Mr Macedo says this was an example of his supervisor’s failure to support him in obtaining training to carry out his duties.
(b)An incident in July 2006 when Mr Macedo was attending a “team huddle” in which Mr Macedo moved in order to better hear the speaker. He contends that a co-worker berated him for taking her position.
(c)An incident in May 2007 when Mr Macedo had returned to work to attend refresher training. He contends he had to leave the training session because he felt unwell and that, notwithstanding he was unwell, he was called to a meeting and reprimanded about his conduct in the training session.
3. Throughout the eight year period these incidents span, Mr Macedo was treated by psychiatrists and certified unfit for work at various times. There is no dispute that Mr Macedo has had a very difficult time and experienced a great deal of pain and anguish and has been, at some points, quite ill and unable to work. The central question is whether he is entitled to be compensated for this incapacity.
4. In the conduct of his case, Mr Macedo dealt with volumes of material and produced many documents of his own by way of submission and supplementary evidence throughout the proceedings. He did so without legal representation. We have no doubt that the proceedings have been a strain on him. We have had regard to all of this material and have attempted to reduce it to its essential parts and to avoid being distracted by that material which, although of importance to Mr Macedo, is not relevant to the issues we must consider.
5.Mr Macedo’s four applications for review are as follows:
(a)2008/2982 – A review of decision dated 16 June 2008 that affirmed a decision of 21 January 2008 to reject a claim for depressive illness resulting from an alleged incident to have occurred on 15 May 2007;
(b)2009/0079 – A review of decision dated 25 November 2008 that affirmed a decision of 28 July 2008 to reject a claim for medical treatment in respect of an accepted initial injury on 21 July 2006;
(c)
2009/1494 – A review of decision dated 25 March 2009 that affirmed a decision of 17 November 2008 to reject a claim for permanent impairment for depressive illness resulting from an incident of
21 July 2006;
(d)2009/3483 – A review of decision dated 22 July 2009 that affirmed a decision of 8 May 2009 to reject a claim for depressive illness resulting from an incident in 1999.
6. From the matrix of incidents complained of by Mr M and the applications for review made by him, the following issues arise:
7.In respect of the 1999 incident,
(a)was Mr Macedo’s psychiatric condition materially contributed to by his employment?
(b)if so, was Mr Macedo’s disease a result of a failure to obtain a promotion, transfer or benefit in connection with Mr Macedo’s employment?
(c)if not, have the effects of the injury have continued?
8.In respect of the 2006 incident,
(a)do the effects of the injury continue?
9.In respect of the 2007 incident,
(a)was there an injury or aggravation?
(b)if so, was it the result of reasonable administrative action?
(c)if not, do the effects of the injury continue?
the 1999 incident
did mr macedo’s employment materially contribute to his psychiatric condition?
10. Mr Macedo gave evidence about the nature of work he did in the CSA. He said it was very stressful because he was required to deal with aggressive people on the phone. He said the effect of this stress was that he could not sleep and kept thinking about clients and their problems. He said that people became angry when they heard his accent for which he thought he needed to do courses to improve his skills. Mr Macedo said he had been trained in customer contact at the ATO where he worked before he went to the CSA and that before 1998 he could manage the stress because he had supportive managers. Then Mr Paul Duck became Mr Macedo’s manager and, he said, gave him no support.
11.
Mr Macedo gave evidence of a conversation with Mr Duck in which he asked Mr Duck if he could do some training courses. Mr Macedo said Mr Duck told him that they would have to do an assessment of what Mr Macedo needed but that never happened because Mr Duck was so busy. Mr Macedo said he took a flex day and came in to do a course. He said that after the course finished at about midday he went to his desk and Mr Duck said “What the bloody hell are you doing here?”
Mr Macedo said he was upset and shocked at Mr Duck’s anger, went to the toilet for a while, went to his desk to get his belongings, saw a colleague and told her what happened and she walked him to his car. He said he then went home and shortly after that went to see Dr Shmuely, a general practitioner.
12. Mr Macedo said that on the next day he called work and Ms Wendy Lobely from Human Resources referred him to Dr Michael Mason who in turn referred him to Dr Julian Parmegiani, psychiatrist. Dr Julian Parmegiani gave Mr Macedo one month off work and prescribed Aropax. Mr Macedo said he only took the Aropax for a month. He said he returned to a four week return to work program with conditions that he not sit near his supervisor, do no telephone work and that he receive feedback from Mr Duck and mentoring to improve his skills. Mr Macedo said he last saw Dr Julian Parmegiani in July 2000. We note that Mr Duck ceased to be his supervisor in April 2000.
13.
Mr Macedo said he continued to see Dr Enrico Parmegiani and also saw
Drs Mason, Joseph and Ang. He said his symptoms fluctuated until 2003 when he was transferred to the Correspondence Team. He said he initially improved with a very good manager in that team but then had a manager who was not so good.
Mr Macedo said he was then transferred to Collection Support in January 2006.
14. Ms Lisa Bonnet gave evidence of having worked with Mr Macedo in the Targeted Enforcement Debt Collection Team of the CSA for approximately four months from June 1998. She described the work as very stressful, requiring officers to call people to pursue collection of arrears of payment of child support by means including garnisheeing of wages. She said many people on the phone become very angry and described the work as emotionally and psychologically draining.
15. She said she had a great deal of respect for Mr Duck and his technical skills and she often observed him taking “escalated calls” – calls where a person has demanded to speak to a supervisor. She said he seemed to be a pleasant sort of person at first but she later observed his manner to change as he became more and more busy. She said she began to feel intimidated by his stern manner.
16.
Ms Bonnet also said that during the period she was working with the team,
Mr Duck did not allow anyone to go on any training unless it was directly related to the work the officer was doing. She said no one in the team had received any training on communication or telephone skills or on conflict resolution or dealing with difficult people. However, she said the whole team received training on technical matters including the relevant legislation. She said there was a backlog that the team had been set up to deal with and it was the primary focus of the team to deal with that backlog. She said that focus was the reason that other training was not offered to team members. She said there was no particular discrimination against Mr Macedo.
17.
Ms Bonnet said that while she was working in the team she observed
Mr Macedo to be coping as well as anyone else in the team with this stressful work. She said that it was later, when she had left the team, that Mr Macedo told her about his difficulties in the job and with Mr Duck. She said she did not witness any incident herself. She said it was not until about two years ago that Mr Macedo told her about an incident in 1999.
18. Finally, she described Mr Duck as a hard worker who would not have been idle. She said she thought Mr Duck did the best he could to treat everyone fairly.
19. Mr Duck gave evidence as to the work of the Targeted Enforcement Team, describing it as heavy and demanding. He had a recollection of Mr Macedo taking months off work and vaguely recalled an incident concerning Excel training for the manipulation of data. He said that skill in that program was not relevant to the work of members of the Targeted Enforcement Team at that time, although knowledge of the program may have been of assistance in other work areas.
20. Mr Duck said he had considered Mr Macedo a friend. He said he became concerned about Mr Macedo’s work performance and he dealt with that separately to his friendship with Mr Macedo. He said the first stages of performance management had been implemented in order to address some problems with Mr Macedo’s work performance. Mr Duck could not recall the details of that but his concern was about Mr Macedo’s core skills. He said performance management would, first of all, identify gaps in skills. He could not recall the particular ways in which Mr Macedo’s performance was inadequate.
21. Mr Duck could not recall what, if any, specific courses were available to employees at the relevant time. He said he was aware that the ATO ran some courses for employees, including an ATO development program that included some work on communication skills, but he could not recall whether Mr Macedo had participated in that program or not.
22.
Dr Enrico Parmegiani is Mr Macedo’s treating psychiatrist. He took over from his brother, Dr Julian Parmegiani, also a psychiatrist, in 2003. He said Mr Macedo suffered from depression in 1999 and had reported mistreatment by one of his supervisors at work. He was treated with anti-depressant medication until he saw
Dr Enrico Parmegiani in 2003. Dr Enrico Parmegiani diagnosed depression with melancholia. At that time Mr Macedo reported that he had been doing well for some time but recently he had again experienced problems with his colleagues and with the work he was doing at the CSA. He reported that he had been subject to abuse on the telephone including statements about his accent and said that he had received no support from the workplace. Dr Enrico Parmegiani said he diagnosed major depression, changed Mr Macedo’s treatment to which he responded well and did not see him again until 2006.
23. Dr Enrico Parmegiani considered that in 1999 Mr Macedo’s condition was precipitated by work related stressors. He bases that opinion on the clinical notes of his brother who was treating Mr Macedo at that time. Dr Enrico Parmegiani accepted that depression can occur without exogenous events and a person may be predisposed to the condition, but that often an episode of major depression is triggered by a significant life event. He went on to describe the division of people who suffer from depression, saying that one third will receive treatment and never have another episode again; one third will respond well and stay well for some time and later develop further symptoms; and one third will develop a pattern where episodes of depression initially respond well to treatment and they stay in remission for periods of time but then they begin to recur at shorter intervals until they become one chronic episode. Dr Enrico Parmegiani said that Mr Macedo falls into this last category.
24. He also ventured the opinion that, notwithstanding any congenital predisposition that Mr Macedo might have, if events at the workplace had been addressed immediately after the original episode it is quite possible that he would not have gone on to develop the pattern he has now developed.
25. Dr Inglis Synnott, psychiatrist, diagnosed psychotic melancholic depression. He described that as an endogenous depression that is a biological illness independent of external events. He said it responds to or can be exacerbated by external events but only to the extent that a person with melancholic depression will have distorted perceptions and interpret ordinary external events as the cause of their depression. He referred to the “ebbs and flows” of the illness and considered it is always there in the background and will be exacerbated at various times, sometimes by external events and sometimes spontaneously.
26. We are satisfied that an incident took place in 1999 in which Mr Macedo attended an Excel course on a flex day and that he and Mr Duck had a conversation about it. We accept that Mr Macedo perceived that exchange to be a negative one and that he was distressed by it. Both psychiatrists consider Mr Macedo to have an endogenous condition. They differ as to the significance of external events and the way in which they act on a predisposition to psychiatric illness.
27.
We note that the question we must ask is whether Mr Macedo’s condition was "an ailment or an aggravation that was contributed to in a material degree by the employee's employment" (Wiegand v Comcare (2002) 72 ALD 795). We are satisfied that the incident took place. We are also satisfied that it loomed large in
Mr Macedo’s perception and that, as Dr Enrico Parmegiani said, it “precipitated” his condition. We consider that it did so to the extent of materially contributing to it.
was mr macedo’s disease a result of a failure to obtain a promotion, transfer or benefit in connection with his employment?
28. At the time of the 1999 incident, section 4 of the Safety, Rehabilitation and Compensation Act 1988 excluded from the definition of “injury” any disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. Comcare contended that Mr Macedo’s injury was a result of his failure to obtain a benefit in the form of training.
29. We follow the decision of the Tribunal in Re Carpenter and Comcare [2010] AATA 62 to the effect that in the context of section 4 of the Act, as it was, any contribution by an excluding event must be material in order to exclude.
30. Mr Macedo’s evidence was that he wanted training in English and communication skills that he considered necessary for his job. He said he was very upset because Mr Duck would not let him do training courses in communication skills and information technology. He said he had no expectations of promotion when his English was so poor. He considered he was being discriminated against because of his race. In cross examination, Mr Macedo agreed that he had thought he had been denied opportunities because Mr Duck discriminated against him, had interfered with his prospects for advancement and had “closed doors”. However, he maintained that the training he wanted was training that was essential to the requirements of his job and not training for the purpose of advancement or promotion.
31. Mr Macedo tendered into evidence a typed letter dated 13 October 1999, headed “To whom it may concern”, from him and addressed to “The Manager of Human Resource Services” at an address in Macquarie Street in Parramatta. The letter is critical of Mr Duck’s dismissal of Mr Macedo’s interest in attending training courses run by the ATO. The letter also referred to changes in the range and level of pressure on CSA officers which gave rise to a greater range of demands to
“do multi roles and work extended hours and sacrificing any prospect for self education, study leave restrictions, training and subsequently indirectly affecting any prospect in career development, job promotion or advancement.”
32. He added:
“Furthermore ‘promotion’ was not a factor in relation to the recent incident with Paul last Friday 8 October”.
33. We also note a Report of Fitness for Duty dated 25 November 1999, prepared by Dr Kanapathipillai, which records under the heading “Medical History”:
“He says that he worked alright with Child Support Agency until about two to three years ago, when he became unhappy with the way he was treated in the office. He alleges that he was being discriminated against promotions (sic) and attending training courses.”
34.
We also note the report of Dr Julian Parmegiani of 19 October 1999.
Dr Parmegiani said:
“Dante attributed his problems to workplace factors. He explained that over the past four years he experienced problems with his manager, who refused to support his application for promotions. Dante had an economics degree and he expected to progress in his career.”
35. We are also mindful of a letter produced by Dr Milton, general practitioner, together with his clinical notes, written in the first person but unsigned. We are satisfied it was written by Mr Macedo. The letter begins:
“The following are some of the reasons why I feel I have been discriminated in my current workplace and why my manager’s attitude have contributed to aggravate this situation.”
36.The letter includes the following passage:
“My sadness, depression have been accumulated for long time, due to lost of opportunities to improve my work status and well being, for instance directly or indirectly I was denied, high duties, training all this have ended the path for promotions and other aspirations in my life”
37. We also note the clinical notes of Dr Ang, general practitioner, which include an entry on 13 May 2003 that says:
“Stress ++ work, sandwich in between clients. Easily forgetful. Easily irritated. Turnover of staff is very fast and 8 years working without promotion.”
38. In Mooi v Comcare (1996) 42 ALD 495, the Federal Court held that a failure to obtain training for advancement is a failure to obtain a benefit for the purposes of the exclusion, but a failure to obtain training necessary to enable the person to perform the duties of the position is not.
39. While no specific promotion has been identified and while Mr Macedo does make mention of English and communication skills in his correspondence, he also appears to be concentrating on advancement and on the prospects for promotion generally. To this extent we consider that the training he was disappointed to have not received was training for the purpose of advancement, possibly in addition to training that was essential to the requirements of his job. We note the Full Federal Court’s decision in Hart v Comcare (2005) 87 ALD 341 to the effect that an exclusionary cause need not be the sole cause of injury in order to exclude.
40. Mr Macedo wanted, understandably, to progress in his career. The contemporaneous evidence bears this out. It is possible that he considered that he needed training in communication skills and in English language skills in order to perform his duties adequately, but that was not his only focus at the time. He was intent on advancement.
41. It follows that the psychiatric condition that resulted from this failure to obtain a benefit is excluded from the definition of “injury” and is therefore not compensable.
42.
It also follows that it is unnecessary for us to consider whether the effects of the excluded injury continue. However, we note the evidence Drs Enrico Parmegiani and Ang to the effect that, by 2006, Mr Macedo was responding satisfactorily to treatment and working normal hours. We also note the evidence of
Dr Enrico Parmegiani and Dr Synnott that Mr Macedo was in remission between 2003 and 2006.
the 2006 incident
43.
Comcare has accepted liability for the injury arising out of this incident on
21 July 2006. The reviewable decisions concerning this incident are based on the view that Mr Macedo has recovered from the effects of the injury.
44.
Mr Macedo’s evidence was that in a meeting one of his colleagues “screamed” at him because he moved too close to her. Mr Macedo said that his “symptoms returned immediately”. He said he went to toilet to recover and cannot recall whether he stayed at work or went home. He went off work in
September 2006 and lodged a claim.
45.
Dr Enrico Parmegiani, in his report of 22 August 2006, reported that
Mr Macedo had suffered a worsening of his symptoms as a result of the incident. We note the report of Dr Enrico Parmegiani dated 27 June 2007 in which he says that he saw Mr Macedo in August 2006 when he presented with a relapse of his symptoms following a confrontation with a co-worker. He then said that Mr Macedo’s symptoms improved and he was able to make a gradual return to work. He said that when he saw Mr Macedo again in January 2007 his symptoms were in remission and he was planning to return to full time work by mid February 2007 and in a consultation on 21 February 2007, Mr Macedo reported that he had returned to full time work and was experiencing no problems with his colleagues.
46.
We also note that Dr Synnott was of the view, in his report of
10 December 2009, that Mr Macedo suffered no significant sequela from the incident in July 2006.
47. In the face of this evidence, which includes the reports of Mr Macedo’s treating psychiatrist, we must conclude that the effects of the injury had ceased by February 2007.
The 2007 incident
was there an injury or aggravation?
48.
It is common ground that on the morning of 15 May 2007, Mr Macedo attended refresher training at his workplace with others. He left the training in the morning, feeling ill. He gave evidence that he had experienced a return of his psychological symptoms. He advised his team leader, Ms Maria Demos, that he felt ill. He returned to the training after lunch but did not stay for long. Later in the afternoon he saw Ms Demos again and told her he wanted to go to see his doctor. Ms Demos asked Mr Gregory Tubman, rehabilitation case manager, to speak to
Mr Macedo. Following a conversation with Mr Tubman, Mr Macedo had returned to his desk when Ms Demos, who was not present at Mr Macedo’s conversation with Mr Tubman, saw him. Ms Demos wished to raise with Mr Macedo some issues arising out of feedback given to her by the training provider. She arranged for
Mr Tubman to be present at the meeting as well. Discussions took place and matters of concern were raised with Mr Macedo. Towards the end of the meeting he became upset. He was thereafter suspended from work.
49.
There is evidence from Ms Demos and Mr Tubman that Mr Macedo became very angry and upset and attempted to lift a desk and throw a telephone on the floor. Mr Macedo denied this, but clearly found recollection of the events very painful and very difficult to discuss. We are satisfied that the incident affected him strongly. We note the report of Dr Peter Morse dated 19 October 2009 that following the incident Mr Macedo became very depressed and anxious and was not able to return to work. Dr Enrico Parmegiani’s reports following the incident describe a worsening of
Mr Macedo’s symptoms. Dr Synnott describes a settling of the symptoms that followed the incident but he indicates he was affected by it.
50.
On this basis, we conclude that the incident gave rise to an aggravation of
Mr Macedo’s condition.
was any injury the result of reasonable administrative action?
51. By May 2007 the Act had been amended to exclude 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. Section 5A(2) of the Act provides that “reasonable administrative action” includes 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.
52. Mr Macedo’s evidence was that the training course he was attending was on calculations. He said it was not what he wanted to do and not appropriate for him to be doing. He said he started at 8.35 am and stayed for half a day. He said he felt ill, took a long tea break to take some Panadol, and went back to the training room until lunchtime. He said that in the training he was unable to log on to the computer and that his “understanding was blocked”. Mr Macedo said he saw Ms Demos at his desk at lunchtime and told her he had a headache and wanted to see his doctor. He said he then went back to the training course to tell the trainer he would be leaving and he stayed for about an hour. He said that at 3.30 pm he went back to his desk and saw Ms Demos again and told her that he didn’t want to finish course. He said he then stayed at his desk to complete an incident report about not feeling well. Later he was asked to go to an office to see Ms Demos and Mr Tubman.
53. Mr Macedo’s evidence about what happened next was very difficult to obtain and clearly difficult for him to give. He said Ms Demos and Mr Tubman talked a bit about his health and also talked about how he has to be a role model and not behave negatively. He said he was threatened with an entry being made on his performance file about his behaviour in the training session. Mr Macedo firmly denied becoming upset and expressing his upset physically. He then allowed that it is possible his memory is incorrect. It was his last day at work. It was clear that this evidence was very difficult and upsetting for Mr Macedo to give.
54. Mr Macedo said that by July he wanted to come back to work but was not allowed. He said he went to Peru in 2007 to see his mother in law, had symptoms there and saw a psychiatrist in Argentina.
55. Ms Demos gave evidence that after she had spoken to Mr Macedo in the mid afternoon, she observed him to be working at his desk. She said he did not appear to be distressed and there was no indication he would be going home early. She had received reports of difficult behaviour by him in the training and was concerned that this would continue in the next day’s training. She said that for this reason she wanted to address the behaviour issues with him that afternoon. She said she discussed this with Mr Tubman and they agreed they would meet with Mr Macedo together. She said that in the meeting she conveyed to Mr Macedo the report that he had been difficult and disinterested in the training and pointed out that he, as a senior member of staff, must be a good role model for new staff. She said that he accepted this feedback. She said Mr Macedo only became upset when he was told in response to his query, that the incident would be included in his performance file. She said he scrunched up a paper, picked up a telephone as if to throw it and raised his fist.
56.
Mr Tubman gave evidence that he had met with Mr Macedo in the afternoon of 15 May 2007, after being requested to do so by Ms Demos. He said that
Mr Macedo had told him he had felt ill during the training and that he wished to go to see his doctor and go home. Mr Tubman said he discussed some alternatives with Mr Macedo such as going for a walk or doing some other work but said he could leave if he wished to. He said Mr Macedo seemed fine after that discussion and that Mr Macedo told him that he would go back to his desk and stay at work. Mr Tubman said that within half an hour he was advised that Mr Macedo’s behaviour in the training session had been problematic and he was asked to attend a meeting with
Mr Macedo and Ms Demos. He said Ms Demos also asked him whether he thought Mr Macedo would be “OK” to attend such a meeting to discuss his behaviour and he advised her that he would be. Mr Tubman said there was nothing in Mr Macedo’s presentation to suggest that he was distressed.
57. Mr Tubman said that while Ms Demos was explaining what was expected of a senior officer in training and telling him that his behaviour was unacceptable, Mr Macedo was not distressed. He said that he was there as an observer and that if he had thought that Mr Macedo was becoming distressed he would have asked for the meeting to break. He said it was resolved that Mr Macedo would return to work but not attend the training planned for the next few days.
58. Mr Tubman said that Mr Macedo became distressed when the subject of his performance file was raised by him and he asked whether the events of the day would be recorded on that file. Mr Tubman said Mr Macedo wanted reassurance that the incident would not be recorded. He said Ms Demos was not able to give that reassurance. Mr Tubman said that Mr Macedo then swept the papers off the desk, tried to lift the desk, raised his fist, picked up the telephone, and smashed it down onto the desk. Mr Tubman said that this was all very out of character for Mr Macedo, whom he had never seen to behave aggressively. Mr Macedo was given a voucher for a taxi home and accompanied there by another staff member.
59. It is possible that the meeting might have been conducted differently, or that it might have been conducted at another time, for example, the next day. However, we are mindful of Ms Demos’ reasons for wanting to have the matter addressed that afternoon with more training scheduled and the possibility that Mr Macedo might not attend work the next day. There were other staff attending the training and there was a need for the training to not be disrupted by the behaviour of a participant. We are satisfied that the meeting in which Mr Macedo’s behaviour in the training session was raised was reasonable administrative action.
60. As to whether the action was taken in a reasonable manner, we are mindful of discussions took place between Ms Demos and Mr Tubman prior to the meeting and the consideration given to whether Mr Macedo could cope with the meeting. We accept that both Ms Demos and Mr Tubman observed Mr Macedo to be not distressed and to be working at his desk during the period before the meeting. We accept Mr Macedo’s evidence that he was in fact working on an incident report concerning his illness that day, but we are satisfied that was not known to Ms Demos and Mr Tubman. Mr Macedo had said he wished to leave work but he remained there and that was observed by his supervisor and his rehabilitation case manager. We also note that Ms Demos made a decision to not involve an additional supervisor in the meeting because she wanted to keep the meeting more “one on one”. We consider this to be a reasonable manner in which to take the action even though we recognise that Mr Macedo’s condition made him more vulnerable than most employees in this situation. We are satisfied that care was taken by Ms Demos and Mr Tubman to accommodate his vulnerability.
61. It follows that the meeting was reasonable administrative action, that the injury is excluded by the operation of section 5A of the Act and that it is therefore not compensable.
do the effects of the injury continue?
62. Given our conclusion as to the exclusionary effect of section 5A, it is not necessary for this question to be canvassed. However, we note Mr Macedo’s evidence that from late 2007 until today there has been no improvement in condition and that it is always fluctuating. This seems to be the pattern of Mr Macedo’s illness. We also note that it was also Mr Macedo’s evidence that by June 2007 he wanted to return to work and considered himself ready to do so. Dr Synnott’s opinion was that he had recovered from the bout of depression he experienced after the May 2007 incident by June 2007, but that psychotic symptoms remained. Dr Enrico Parmegiani reported that Mr Macedo remained, after the May 2007 incident, on the same treatment regime he had been on prior to it. We consider that the effects of the incident were short-lived but that Mr Macedo’s underlying condition has continued and continues to fluctuate.
63.
We are concerned that these proceedings have placed great strain on
Mr Macedo. He was prolific in his generation of documents and material for these proceedings. His great distress was evident on many occasions throughout the five days of hearing. Mr Macedo is clearly a highly intelligent and industrious person, but he is troubled. We hope that, with these proceedings at an end, and with the assistance of Dr Enrico Parmegiani, his symptoms can be alleviated to some extent and he can move on to other endeavours.
decision
64.
The Tribunal affirms the reviewable decisions of 16 June 2008 (2008/2982),
25 November 2008 (2009/0079), 25 March 2009 (2009/1494) and 22 July 2009 (2009/3483).
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M. E. C. Thorpe, Member
Signed: ......................[sgd]........................................................
AssociateDates of Hearing 9-12 August 2010, 28 October 2010
Date of Decision 21 December 2010
Representative for the Applicant Unrepresented
Counsel for the Respondent Mr Grant Elliot
Solicitor for the Respondent Ms Vivian Haddad, Dibbs Barker Lawyers
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