Malicki and Comcare
[2000] AATA 832
•8 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 832
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/252
GENERAL ADMINISTRATIVE DIVISION )
Re MALICKI
Applicant
And COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell
Date8 September 2000
PlaceSydney
Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that: (1) the Applicant has suffered an injury, namely an adaptive disorder with features of major depression and anxiety; and (2) factors in the Applicant's employment caused or contributed to in a material degree the development of the Applicant's psychiatric disorder; and (3) the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Act; and (4) the matter is remitted to Comcare for calculation of entitlements in relation to medical expenses and for the nominated period of total incapacity and for the period of continuing partial incapacity.
[Sgd] Dr J D CAMPBELL
Member
CATCHWORDS:
Compensation – Personality – Workplace events – Psychiatric Disorder – Attribution – Employment Material Contribution – diverse psychiatric opinion as to causation
Safety Rehabilitation and Compensation Act 1988, ss 4, 7, 14, 16, 19
Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626
Comcare v Mooi (1996) 137 ALR 690
Comcare v Ross (1996) 680 FCAI
Van Houten and Comcare (AAT 12339, 24 October 1997)
REASONS FOR DECISION
Dr J D CAMPBELL, Member
Ms J. Malicki ("the Applicant") in this matter seeks a review of the decision dated 4 May 1998 made by the Claims Manager for the Stress Claims Management Centre of Comcare ("the Respondent"). This decision had been reviewed by an Independent Review Officer at Comcare Claims Management Centre, who in her decision dated 4 January 1999 affirmed the earlier decision that the Applicant was not entitled to compensation for the condition of 'adjustment disorder'.
A hearing was held before the Tribunal on 25 and 26 November 1999, and adjourned until further hearing on 5, 6 and 7 April 2000. The Applicant was represented by Ms R. Henderson of Counsel. The Respondent was represented by Ms L. Gabriel of Counsel.
The following material was placed in evidence before the Tribunal:
Exhibit No. Description Date
T1 – T82 pp1 – 225 Documents prepare pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1 Medical report of Dr Morse 17 August 1998
A2 Medical report of Dr Morse 5 October 1999
A3 Medical report of Dr Kneebone 18 September 1999
A4 Letter to Dr Lewin from Applicant 7 June 1999
A5 Letter from Dr Lewin to Applicant 21 June 1999
A6 Reference re the Applicant by Mr Bert 23 May 1996
A7 Reference re the Applicant by Mrs Harricks 6 June 1996
A8 Australian Hearing Service organisational chart
A9 Performance Assessment of the Applicant (4 pages)
A10 Letter to Applicant from Mr Brown 18 July 1996
R1 Medical report of Dr Lewin 4 June 1999
R2 Statement of Mr Butler 22 September 1999
R3 Statement of Mr Peterson 8 October 1999
R4 Statement of Ms Day 11 November 1999
R5 Statement of Mr Nolan 11 October 1999
R6 Statement of Mr Kimbell 9 November 1999
R7 Inter Office Memo e-mailed by Applicant to Mr Bert 9 November 1993
R8 Three Page summary of earnings of Applicant from TAFE for financial years 96/97, 97/98, 98/99
R9 Medical report of Dr Lewin 25 July 1999
R10 Clinical notes of Ms Blackburn
The following is a list of witnesses who presented evidence before the Tribunal:
Ms Malicki The Applicant
Mr Malicki The Applicant's husband
Mr Butler Operations Manager, Australian Hearing Services
Mr Bert Managing Director, Australian Hearing Services
Dr Lewin Consultant Psychiatrist
Ms Blackburn Clinical Psychologist
Dr Houwing General Practitioner
Mr Kimbell Finance Director Australian Hearing Services
Mr Peterson Human Resources Manager
Dr Morse Consultant Psychiatrist
Dr Donsworth Consultant
Dr Nolan Portfolio and Liaison Manager Australian Hearing Services
Ms Day Human Resources Adviser, Australian Hearing Services
Dr Kneebone Consultant Psychiatrist
ISSUES
The relevant issues before the Tribunal in this matter are:
(a) whether the Applicant suffered an injury as defined by the Safety, Rehabilitation and Compensation Act 1988; and
(b) whether the factors of the Applicant's employment caused or contributed to in a material degree to the Applicant developing a psychiatric condition; and
(c) whether or not the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATIONThe relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 4, 7, 16 and 19.
EVIDENCE: THE APPLICANTIn describing events prior to commencing employment with the Australian Hearing Service, the Applicant stated that she was born in 1958 and completed a Bachelor of Science degree majoring in Psychology and Anatomy at the University of New South Wales in 1979, prior to completing an Occupational Therapy diploma at Cumberland College. After graduation, the Applicant was employed with the Commonwealth Rehabilitation Service ("the CRS") in Perth for the years 1981 and 1982. In this role she was tasked with undertaking the assessment and rehabilitation of people suffering from illness, injury, accident and disability. During this period of employment she was promoted to an acting class II therapist responsible for some administration and supervision of other therapists.
In 1983, the Applicant was transferred to Sydney where she worked at the Queen Elizabeth II Rehabilitation Centre ("the QE II") until 1984. In 1986, after a years leave of absence in which she travelled overseas, the Applicant resumed as an acting class III with the responsibility for workshops at QE II. In mid 1988, the Applicant was appointed to a class III position at RGH Concord, where as an Associate Director she was in charge of therapists and undertook a number of assessments.
An application for a class IV position was successful and from 1989 until 1992 she was employed as a permanent class IV in Brisbane and further undertook the role of consultant in occupational therapy (a class V position in Canberra).
The Applicant stated that during these periods (as nominated), she enjoyed the challenges, including promotion, and at no stage did she experience any difficulty with her health.
In February 1992, the Applicant was appointed as policy planning (corporate planning) and marketing manger at Australian Hearing Services. In this role, for which there existed no duty statement at the time of appointment, the Applicant reported directly to the Chief Executive Officer ("CEO"), Mr Bert. The Applicant stated that her duties involved participating in processes and activities on which Mr Bert wished her to work. Her primary role in her view was to take over the marketing function and expand it, as the organisation was to be a separate corporate entity, no longer within the jurisdiction of the Department of Health (Federal). In this role the Applicant was busy for 12 to 18 months establishing the corporate image (logo, stationary, corporate style manual, posters, uniforms) and promoting the new image to staff. In other areas of her responsibility (corporate policy and planning), the Applicant indicated that her energies were directed to evolving the statutory authority process, consulting with staff, undertaking committee work, producing a corporate report for the Board and the Minister and establishing the health and safety policies for the service, which required audit, assessment and agreement with the unions.
During this initial 12 to 18 month period, the Applicant tried to establish her priorities of work, but goals and objectives always seemed to be changing (external changes – Government, consumer groups, internal requirements of the organisation and the perceptions of the CEO).
In mid 1993 the Applicant approached Mr Bert and advised him of the many conflicting priorities and that she had no facilities or resources to which and whom she could delegate. The Applicant indicated that Mr Bert responded with words to the effect that everything is a priority. The Applicant stated that she realised that she was not coping with her work and wrote to Mr Bert stating that she wanted advice on how to cope with all the major projects requiring major time commitment. The Applicant felt that it was necessary to write as speaking to Mr Bert had got her nowhere, that she felt she was falling apart and that her not coping with the work was becoming evident to staff. It was the Applicant's view that Mr Bert was annoyed with her request and that she did not receive a clear answer.
In trying to cope with the situation the Applicant stated that she spoke with Mr Peterson, the Human Resources Manager about the problems she was having with Mr Bert and how he treated her. In November 1993 the Applicant spoke specifically with Mr Peterson, when she was driving him home from work, and asked him to sit in the office with Mr Bert and herself to try and sort out the problems between them. She said that she told Mr Peterson that communications were very difficult and that he (Mr Bert) would get angry, call her stupid, shout at her and demand box loads of redrafting and further would keep on changing his mind, while becoming uptight and angry.
The Applicant stated that one of the tasks delegated to her was the preparation of the annual report, an activity she had never done before, and that there were legislative timeframes for its completion. In moving to undertake the task the Applicant established a plan, but the plan kept being changed as Mr Bert kept on changing his mind as well as delaying approvals for a week or more at particular stages of the activity.
The Applicant stated that in November 1993 she started falling apart, experiencing nausea, headaches (explosive), a lack of clear thinking and periods of not eating culminating in a breakdown in the office. The Applicant consulted her General Practitioner (Dr Douglas) who advised that she have a period of sick leave, during which she did very little other than sleep. After two weeks off work she proceeded on a pre-booked holiday with her future husband, again sleeping most of the time. She stated that, while she had earlier periods of feeling guilty and letting people down, she was glad to be away from Mr Bert and started to improve. She stated that she was determined to present well to Mr Bert when she returned to work, that she had recovered, that she respected Mr Bert, and that she felt ashamed at letting him down.
The Applicant stated that in January 1994, on return to work, the annual report had been completed and her role continued with the same duties. She stated that she talked with Mr Bert about what had happened and that Mr Bert apologised and asked about how he could help in not allowing it to happen again and that he really appreciated her making an effort. The Applicant also stated that the doctor had asked her to complete a workers compensation claim for the period she was off work, but she declined to do so, indicating that Mr Bert had expressed adverse consequences if she did.
During 1994 the Applicant stated that difficulties arose again with Mr Bert continuing to have angry outbursts, with whatever the Applicant did seeming to be associated with error. The Applicant stated that Mr Bert was verbally aggressive towards her, that he would come into her office and dump his anger upon her, demanding little changes to be made, which she considered to be nit-picking. The Applicant stated that she considered Mr Bert's whole manner to be peculiar and that in many ways she would have felt better if there was something wrong with her work, not, for example as happened when Mr Bert became angry when he believed no references had been supplied with the prediction model, when indeed they had. During 1994 the Applicant stated that she continued in the same role, with the added responsibility of chairing the quality assurance committee and formalising the quality assurance policies and procedures for the organisation. The Applicant stated that Mr Bert continued not to direct priorities, stating whatever had to be done by the Applicant had to be done.
In 1995 the Applicant described her work as similar to past years, with there being good times and bad times. The bad times were said by the Applicant to be associated with the annual report, the strategic plan and board meetings. In such situations the Applicant stated that Mr Bert would become very stressed and that in conversation with her he would suddenly get quite abusive, making her feel that she had said or done something wrong. The Applicant stated that she spoke with Mr Peterson (''did not want to know") and Mr Nolan ("sympathised with her") about this ("non professional") behaviour of Mr Bert. The Applicant said that such outbursts always occurred in either her or Mr Bert's office, and when they were alone with the door closed. Further the Applicant indicated that Mr Bert talked about famous people's sex lives which he had read in the paper and staff relationships in a previous job, which in turn made her feel uncomfortable and unable to understand where he was coming from. The Applicant described an episode in 1996 when, having told Mr Bert that the reason for a one-day absence from work was a urinary tract infection, she felt "bad and dirty" when he responded that this was one of those things for a woman recently married. The Applicant indicated that she was not used to this sort of behaviour in the work environment.
The Applicant stated that the annual report preparation was a nightmare and she would sit in Mr Bert's office for hours as he went through various drafts of the report – he being very intense as he wanted the very best and she at times being the subject of his anger and abuse. The Applicant stated that Mr Bert could be nasty on other issues, being off hand and annoyed, making her feel that she had done something wrong.
During this period (early 1996), the Applicant was seeing her general practitioner to whom she was complaining of constant fatigue and tiredness, bad headaches, stomach problems, cardiac pains, weeping, difficulty with sleeping, nightmares, polyuria and lack of concentration.
In March 1996, the Applicant spoke to Mr Nolan who was located in Canberra doing policy and liaison work and asked whether he would take over the completion of the annual report. While sympathetic to the Applicant's position, the Applicant stated that Mr Nolan declined her request.
The Applicant indicated that she had spoken to Ms Day concerning options relating to an excess position scenario, with a particular understanding that such a discussion was in confidence, as she did not want anything to go back to Mr Bert. In initiating such a discussion the Applicant wanted to explore what options existed, not wanting to be pushed into a particular option, and enjoying an opportunity to work things through independently.
Following a union management meeting the Applicant spoke with Ms McLaughlin about what transpired at the meeting and was told that at the meeting she was looking to redeployment. The Applicant told Ms McLaughlin that her discussion with Ms Day was of a confidential nature and that she was upset with the breach. The Applicant said she was upset with this incident, did not discuss it much at the time within the organisation, packed up and drove home thinking she had been betrayed and feeling fearful that she might have an accident. On arrival at home the Applicant collapsed in the lounge room, crying and becoming hysterical. Her husband tried to calm her down, before he took her to see Dr Houwing, a general practitioner, who wrote a sick leave certificate for two weeks asking that she return in one week for review.
On 21 May at a meeting which she requested with Mr Bert, the Applicant was informed that there was to be a two percent reduction in staff numbers, that a number of positions would be abolished and that her position was to be declared excess. The Applicant said she was quite shocked as Mr Bert, some four weeks earlier had said that there was no way he would retrench the Applicant unless that was what she wanted, for she was a valued staff member. The Applicant stated that she was not upset with the provision of this information, that she drove home and told her husband and together they explored the options without coming to any decisions.
The Applicant stated that she continued to see Dr Houwing, who in turn recommended anti-depressive medication, which the Applicant refused, as she did when it was suggested at this time that she should see a psychiatrist with regard to difficulties with her boss. The Applicant stated that she believed she would recover from her difficulties by putting her experiences at the Australian Hearing Services behind her, by undertaking a planned overseas holiday in South America, and in 1997 embarking on a self prescribed work rehabilitation program with casual teaching at TAFE. At this stage the Applicant stated that she was socially withdrawn and not enjoying herself and with the teaching she found it hard to concentrate, had difficulty with the students when they asked questions, avoided the other teachers and felt anxious about dealing with her "loss". Her husband drove and collected her from TAFE, with her initial teaching activities being for three hours per week for four weeks and then another month, teaching management of recruitment selection and induction. In this activity she found interaction with students satisfactory, but confessed to being anxious if another teacher approached her in the corridor. The Applicant indicated that she has continued with TAFE teaching for four and a half hours per week.
In August/September 1997 Dr Houwing convinced the Applicant to have professional help, as she was planning self-destructive acts, including obtaining a number of sleeping tablets. The Applicant further stated that her symptoms had not changed from the time of leaving the Australian Hearing Service to seeking professional help, with gradual improvement after such actions, and with the anti-depressants there were periods in which she did not hate herself as much, although it was her experience that the medication took a long time for any improvement to occur. The Applicant stated that she still experiences nightmares and panic attacks and feels bad about herself. Further after a visit to the Comcare Psychiatrist (Dr Lewin) she discontinued the use of anti-depressants, and again experienced thoughts of self destruction.
The Applicant stated that the reason for the delay in seeking compensation was her general unwellness and her concern for repercussions. Following notice of her redundancy, she stated that she was on sick leave for some months and had no contact from her parent organisation and that her husband rang Ms Ormond at the Department of Health in Canberra. A meeting was organised at her husband's office in Parramatta in August 1997 at which she agreed to accept redundancy, for she was too sick to explore other options and she wished to get away and get on with her life rather than worry about a compensation claim involving the Australian Hearing Services. Further she still had a feeling that she must have done something wrong to upset her colleagues and she continued to try and work through this issue.
The Applicant stated that over the last few months, with increased medication she has better able to cope – she feels less depressed, less teary and better able to function in outside activities.
CROSS EXAMINATIONIn response to questions asked by Counsel for the Respondent, the Applicant confirmed that she had completed a Masters of Business Administration ("MBA") with study leave time given for attendance and project work between January and September 1993. The Applicant had commenced the degree in 1989 and was encouraged by Mr Bert to complete the course of study.
The Applicant indicated that she responded to an advertisement in the Commonwealth Gazette for a senior officer grade C in mid 1992 at the Australian Hearing Services, which was to become a statutory authority. At the time it was suggested to her that she withdraw the application as the position was mainly involved with statistical issues and she apply for a senior officer Grade B position which involved marketing. The Applicant said the position was never advertised, that there was no formal position or duty statement and that she was interviewed for the position by Messrs Bert, Butler and Burton.
The Applicant stated that she experienced work overload by July/August 1993, the work load up to that time being comfortable since taking up her job in 1992, although role definition was a problem in 1992. The major workload problem was the annual report and Mr Bert's desire to make it a perfect report, with her task to collate information and edit the draft prepared by a professional journalist. Mr Bert was unhappy with the first presentation and again after a rewrite. In October/November 1993, the Applicant rewrote the report both at work and at home and this report was tabled in parliament in the first or second week of December 1993. The Applicant confirmed that she had sought directions for priorities from Mr Bert in the second week of November 1993, after completion of the first draft of the report.
The Applicant confirmed that she and her husband (in part) had prepared the documentation detailing the significant events in October 1999. The Applicant also stated that there had never been a response from Mr Bert, whose office was next door to the Applicant, and that her e-mail to Mr Bert was a cry for help.
The Applicant confirmed that she had no difficulties in completing the MBA program and that the symptoms, which she discussed with her partner, Mr Peterson and eventually her doctor in November 1993, arose in and from the workplace. She had hoped that by telling Mr Peterson he would perhaps act as a mediator in the situation – a role which he rejected. As a consequence she further discussed her difficulties in coping with Mr Bert's behaviour with other senior staff including Mr Nolan and Mr Butler (operations manager).
Following Mr Bert's angry outburst and the day after when he apologised, the Applicant said she was never the same after this particular episode. She admitted that she did not know why she did not use the normal grievance procedure and that initially there were no specific complaints to the doctors about Mr Bert's behaviour, with any mention being very much a secondary matter.
The Applicant confirmed that during the period January 1994 to January 1996 she felt stressed occasionally, with a similar range of ongoing symptoms, which led to a complaint to Dr Houwing towards the end of 1995 of fatigue, while making no complaint about stress at work, even as a secondary issue. She made no other complaints; did not want to take sick leave, because of a feeling of guilt; was unable to handle her boss or the way he treated her and was advised by Mr Bert that if she was unable to manage the "rough and tumble" of management she should consider returning to her previous role as clinical occupational therapist.
The Applicant confirmed that any aggressive behaviour towards her by Mr Bert was in private ("behaviour was a living hell"); that another employee, Mr Stone, had made a formal complaint to the Board; that she did not know why she stayed or did not look for other positions, but she felt that this may have something to do with general feelings of inadequacy and a desire to prove herself as a good senior manager. The Applicant stated that she respected Mr Bert's intelligence, his ability to undertake multiple tasks and his analytical mind.
In December 1995/January 1996 Mr Peterson, for whom she had little respect was promoted to level "A", his position having been upgraded, and having been assured by Mr Bert and Mr Peterson that none of her functions would be transferred to Mr Peterson, the Applicant felt there had been a breach of trust when the occupational health and safety function was transferred. In January 1996 the Applicant consulted Dr Houwing, complaining of headaches which were associated with stress at work and had nothing to do with the promotion of Mr Peterson. Further, in January 1996 she experienced a problem with a staff member who was refusing to undertake work and she reprimanded the individual in public, which in her view was a serious error of personnel management and which she considered a low point in her career. She stated that she called Mr Bert into her office, told him what she had done and apologised. The individual involved was moved forthwith.
The Applicant stated that she was advised on 21 May 1996 by Mr Bert that her position was redundant. In stating that she had felt not valued in the organisation for a long time, the Applicant was still surprised as there had been a recent policy document expanding her position.
The Applicant confirmed that the management union meeting occurred on 29 May 1996 and this was attended by the union, Mr Bert, Mr Butler and Ms Day and that the latter informed the meeting that the Applicant was seeking redeployment. The Applicant stated that she felt she did not fit in and was not accepted by her colleagues; that she was considered to be prim, proper and conservative; that she progressively withdrew from colleague contact from 1995; that there would be social get togethers and she would not be invited; and that she discontinued going to the canteen for lunch as others would talk about social activities. The Applicant also stated that she considered that she was being excluded from meetings, and particularly where she was not part of the working party established on marketing matters, she felt obliged to write to Mr Bert twice in May 1996 regarding participation in matters which lay within her sphere of responsibility.
The Applicant also confirmed, that while affronted by Mr Bert's sexual talk and discussions and her awareness of sexual harassment policies and grievance procedures, she made no complaint of same to Mr Bert or anyone else in the organisation.
The Applicant confirmed that the first formal letter she received notifying her that her position was excess was on 22 June 1996; that the meeting with Ms Ormand was on 6 August 1996 and that she requested redundancy on 8 August 1996. She stated that she was confused at the time of her request for redundancy, but there is no dispute with the decision.
The Applicant stated that when she first went on sick leave in May 1996 she had to stay within the home and that during July/August 1996 she, with the help of her husband, was able to venture outside the home, although there were some panic attacks. In September 1996 she, with her husband, travelled to South America and she felt much improved after the holiday. The Applicant confirmed that there were no second thoughts about her decision to seek redundancy for she did not wish to talk or return to the organisation from which she was made redundant.
The Applicant stated that in relation to her superannuation entitlements her initial decision involved part pension, part lump sum and part roll-over. On return from overseas she had a change of mind after receiving the roll-over. Her request was refused but on reconsideration was approved. The Applicant stated that she, with help from her husband dealt with this issue.
The Applicant stated, that as part of her determination to get herself better, she did not seek medical attention from October 1996 through August 1997. During this period she made application for employment with TAFE and that she commenced casual teaching at Meadowbank in February 1997. Further, she stated that she assisted a school friend in a consultancy with the Department of Health for seven days during this period, in which she met people and then wrote up a summary of the meeting. In semester II 1997, she had day classes at TAFE.
In response to questions concerning her well being, the Applicant stated that she thought about suicide while on sick leave to August 1996; that she had "stupid" thoughts when she was overseas and again between September 1996 and August 1997. Until August 1997 when she told Dr Houwing, (and at the time she was about to commence on anti-depressants) that in mid 1997 she had obtained sleeping tablets from her husband (unbeknown to him), and on counting the number available realised that here would not be enough and it was not her intention to make a half-hearted attempt. Dr Houwing requested that the Applicant see a psychiatrist in August 1997, but the Applicant was adverse to such a course of action, although agreeing to seeing a Ms Blackburn (clinical psychologist).
The Applicant stated that she commenced seeing Ms Blackburn in September 1997 on a once or twice weekly basis. She told Ms Blackburn about the nature of her complaint, the issues at work, how she felt betrayed and eventually blackmailed. At this time the Applicant said she was encouraged to make a claim for compensation, as Ms Blackburn felt she needed full rehabilitation. She stated that her husband had wanted her to make such a claim in early 1996 and she refused. Further, a claim in his view should have been made when the Applicant went on sick leave in late May 1996, as there was a need to establish and acknowledge the issues surrounding the events which had occurred and which in her mind she believed to be at fault, causing feelings of shame and marginalisation.
The Applicant described her counselling therapy program with Ms Blackburn. In August 1998 this was interrupted when the Applicant wrote to Ms Blackburn stating that Ms Blackburn had let her down in her dealings with Comcare, as the Applicant was frustrated at the non-action from Comcare. Ms Blackburn also wrote a letter to Comcare indicating that the Applicant was not to be provided with answers to questions raised with Ms Blackburn by Comcare. At this stage the Applicant was unable to continue and the hearing was adjourned.
In response to questions from the Tribunal, the Applicant indicated that her relationship with Mr Bert was good to start with, and that she always had the office next to him; that the relationship started to sour in mid 1993. The Applicant stated that she found Mr Bert to be intelligent, forthright, very direct with his views and that she respected him for his authority and the fact that he took pride in his position. The Applicant considered Mr Bert to be excessively demanding, nit-picking about little things, including grammar, punctuation and tone of a letter or a report. The Applicant considered Mr Bert not to be well liked by staff, as they found him bullying, difficult to work with and good at upsetting people. The Applicant believed that Mr Bert was task orientated, autocratic, authoritarian, not a good bureaucrat, resistant to public service measures and procedures and frustrated by them, not a people's person and that this was his first experience in the public sector, having previously worked in the private sector in South Africa. In considering other aspects of Mr Bert's character the Applicant stated that he could have a caring manner, nevertheless she believed his decision making style to be erratic, often associated with panic and a last minute rush, which in turn caused the Applicant a lot of frustration as matters requiring decisions would lay undecided for long periods of time, and further that last minute decisions were often associated with further changes.
In describing her own management abilities, the Applicant considered herself a sound bureaucrat although lacking in political nous, with good people and talking skills. The Applicant considered herself as a person who liked to plan and organise her work, create priorities and schedules, liked to honour undertakings, and to be loyal. She believed herself to be a perfectionist (not obsessive), although towards the end of her time with the organisation she felt she was obsessive when coming to writing a letter, and that her numerous e-mails to Mr Bert seeking appointments were more to do with her frustration and exasperation at the lack of timeliness of his decision making.
The Applicant believed she was being harassed both generally and sexually in the workplace, in that she was not left alone to do her work and that Mr Bert would go through her in-tray and seek answers for matters that she had not yet had time to consider. Further he would question her in detail on what went on at meetings she had attended, particularly if they were interstate and he had "spies" in other states. He demanded that the Applicant come into his office, where she would have to stay for hours working through annual report issues; he would call her out of meetings and she felt at his beck and call and generally "smothered"; he would keep her back after work, so much so that she arranged for her husband to ring at 5.30pm in order that she could discontinue discussions. Further the Applicant considered Mr Bert to be unusually particular in approving time in lieu, and often denied in anger any suggestion that he had offered time in lieu when the Applicant requested such time. Similarly the Applicant stated that Mr Bert would threaten to cancel her leave and/or alternatively place contactable requirements upon the Applicant.
The Applicant indicated, while there may have been a process for which she could have complained of harassment in the organisation, for all practical purposes this did not exist, in view of her position, the subject of her complaint and the actual avenue of complaint and the consequences if she were to make a complaint. Similarly the Applicant, in relating conversations she had with Mr Bert which involved the latter relating a sexual joke on talking about the sexual lives of the famous, other staff members and his own, felt taken aback by such conversations and affronted. Nevertheless the Applicant stated that Mr Bert never contacted her physically nor was he suggestive, other than by what he said in the conversations. The Applicant stated that she shared some of the difficulties with Mr Peterson, Mr Nolan and her husband. Further the Applicant stated that apart from general difficulties in getting on with Mr Bert, a few people such as Mr Kimbell and Mr Butler had particular issues which caused some heated discussion with Mr Bert. Despite her difficulties with Mr Bert, the Applicant stated that at no stage did she ask Mr Bert to desist on conversations or actions which were causing her distress, as she felt it was not worth it.
The Applicant stated that in mid 1995, Mr Bert refused to let her go to meetings which she had, prior to this time, been attending. She was removed from the meetings distribution list, on the pretence that she had better things to do. Such exclusions included strategic planning days, which was part of her mandate, and interstate travel. From December 1995, the Applicant stated that exclusions became progressively worse, and this included decisions, meetings and e-mails. An example given was exclusion from marketing committees for indigenous communities when she was the marketing manager. The Applicant admitted that in December 1995 a marketing campaign to raise awareness among the general population about noise pollution and hearing changed to a political campaign with adversaries for both parties, with the Applicant caught in the middle. The Applicant further concluded that exclusion and isolation within the organisation evolved after this to include non-involvement in social activities to the point where she felt marginalised.
The Applicant stated that at no stage during this time with the organisation was she told that her performance was not adequate, and despite much nit picking by Mr Bert in annual performance reviews, which would last for two to three hours, her work was verbally rated by Mr Bert as very good to excellent.
In response to further questions in cross examination the Applicant, while believing she had been subject to sexual harassment, stated that she had only ever discussed issues of general harassment by Mr Bert with Mr Peterson and towards the end of 1995 with Ms Day.
In response to questions asked in re-examination, the Applicant confirmed her shock and disbelief when told by Ms McLachlan that Ms Day had mentioned the Applicant by name at a union management meeting as a person who would be seeking redeployment. The Applicant stated that as a result of learning of this disclosure, she returned to her office, collapsed in her chair and cried, feeling that this was the last straw, as she believed up to that time that she could trust Ms Day. Further the Applicant detailed two further incidents involving her area in which she felt she was a "sacrificial lamb", each incident involving an issue with the Parliamentary Secretary and decisions made by others which impacted on her.
MR MALICKI – THE APPLICANT'S HUSBAND
Mr Malicki told the Tribunal that he met the Applicant in 1989 in Tahiti, and after a long courtship married in August 1995. In their years of courtship, Mr Malicki found his future wife to be very vibrant and very sociable and he admired her for having both a successful private and professional life. In his view the earlier qualities of brightness, cheeriness and "girl-like" qualities have disappeared, as has an active social life. Mr Malicki considered his wife to be withdrawn, tired and lethargic with a negative self image, and always being critical of herself and what other people may think, as opposed to be being a high achieving person and role model for others.
Mr Malicki stated that he had progressively noticed changes in his wife's attitudes and behaviour commencing during her earlier period of employment at the Australian Hearing Services, culminating in her going off on sick leave in late 1993 after difficulties associated with the production of the annual report. During their subsequent holiday in Malaysia, he stated that his wife during the first week had no life, energy or spark, and that his wife was frightened that Mr Bert would find out where she was. During the second week there was a minimal improvement in her vitality.
Mr Malicki described his wife prior to the holiday as being devastated by the amount of time and effort involved with the annual report, the constant changes initiated by Mr Bert and the frustration that she was feeling in trying to please Mr Bert. Mr Malicki confirmed that at this time he would ring his wife at 5.30pm each evening in order that she leave work, rather than enter into discussions with Mr Bert, which might last until after 7.00pm.
After the return from holidays, Mr Malicki described the situation as progressively deteriorating and he encouraged his wife to claim workers compensation for the sick leave period and the holiday, as she was genuinely ill. Mr Malicki confirmed that his wife had told him she had discussed her situation with Mr Bert, that he had apologised, but that he threatened to "ruin her" if she claimed workers compensation. Mr Malicki said that his wife was frightened of such consequences and the matter was allowed to rest.
Mr Malicki commented that on what he was told by his wife, Mr Bert continually changed the "goalposts" against which her performance was to be assessed, that he was a difficult man and his wife seemed to bury herself deeper and deeper in her work, taking on so many things that she had no background in and with an expectation by Mr Bert that as she had done a MBA, she should be able to complete them. On advice by him to his wife, his wife confronted Mr Bert seeking guidance on priorities and was advised to do them all.
Mr Malicki confirmed that the years 1994 and 1995 were a continuation of his wife burying herself in her work, with their private life becoming less and less, and his wife seemingly devoted to trying to meet the standard of work required by Mr Bert. In May 1996 Mr Malicki stated his wife came home crying hysterically and he took her to Dr Houwing. After this Mr Malicki stated that his wife sat each day on a couch, where he would find her when he came home from work. In September 1996 they went on a prearranged holiday to South America, and during this holiday his wife had days of enjoyment followed by days of fatigue and inability to do things. On their return she appeared to him to be somewhat improved and with his assistance and her intent, she moved to have the superannuation decision altered, although in his view without much of an idea about how to go about it, demonstrating to him a lack of confidence and self-assuredness, attributes that she used to have.
Mr Malicki confirmed that he had been party to a meeting with Mr Peterson and Ms Ormand (Department of Health and Community Services) which was a follow-up meeting to a situation where the Applicant had an appointment with a Commonwealth Medical Officer for assessment because of continuous sick leave and the issue of redeployment/redundancy. This appointment was inconclusive as the Applicant did not wish any of the discussions involved to be made available to Australian Hearing Services, an assurance the CMO could not give, with the appointment being curtailed. The meeting with the two officers was said by Mr Malicki to be an attempt to progress matters, particularly in view of the absence of any formal or informal contact from the Australian Hearing Services over the previous two months. Nevertheless it was his impression that the Australian Hearing Services were "playing it according to the rulebook" and wished to have a decision from his wife as to whether she wished to accept voluntary redundancy, despite there being a certificate from Dr Houwing that the Applicant had been sick for the previous two months, although the cause of his wife's illness was not disclosed because of her concern for confidentiality. Mr Malicki sought postponement of the decision but this was refused and as a consequence, to resolve the impasse, a decision to accept redundancy was effected. This was not a major issue to either Mr Malicki or his wife as they had discussed such issues in January 1996 at the time of change of government and issues associated with pre-election stances and corporatisation.
Since August 1996, Mr Malicki described his wife as still not being the person she was; that it had been a major struggle to get her to seek professional help and take medication; that she remained unstable and moody and could be good at times to the point where she can almost lead at least some semblance of a normal life, while at other times having difficulty in participating in small social family gatherings.
In answers to questions in cross-examination Mr Malicki stated that his wife felt intimidated by Mr Bert and was fearful of him, but had never spoken to him of harassment. There were matters of which she had spoken to him regarding Mr Bert's comments on actions, which in his opinion were not appropriate in a workplace setting. Similarly he was able to remember his wife telling him of some matters which may have had a sexual connotation. Despite his advice to his wife to lodge a grievance against Mr Bert, she did not do so, for in his opinion, she was in fear of the man, as on occasions when she tried to assert her rights (flex time, compensation claim in 1993), Mr Bert, by his actions and comments, frightened her.
In Mr Malicki's view his wife's fear of Mr Bert commenced in July/August 1993 when she was having problems with the first annual report, when she found Mr Bert to be erratic, emotional and prone to outbursts. This attitude to Mr Bert by his wife continued on and off during the remainder of her service with Australian Hearing Services. Mr Malicki said that his wife did consider leaving and joining others in consultancy work, but she elected to remain as she was both loyal and learning valuable skills. Mr Malicki commented that the issue of his wife's reaction and response to a junior staff member's actions in January 1996 was a matter of concern for his wife, because it was out of character for her to act in the way she did. Further Mr Malicki stated that his wife was concerned when the occupational health and safety function was removed from her mandate in January 1996, but that she did not complain to him of other matters or functions being removed. Mr Malicki stated that in her complaints to him, the Applicant was not so much concerned about the amount of work she had to do, but more with the manner in which Mr Bert kept changing the priorities – a matter in which he gave his wife some advice on how to address Mr Bert, advice which she accepted in part as evidenced by her e-mail to Mr Bert on 9 November 1993 (Exhibit R7). Mr Malicki also commented that his wife was concerned about the process by which Mr Peterson was promoted in January 1996 and that she was surprised when Mr Bert offered redundancy in May 1996, in view of her earlier understanding that she was not to be offered unless she requested. Mr Malicki described his wife as having a particular concern about her privacy in relation to medical matters, but also in relation to her personal affairs. Mr Malicki also confirmed that he had a strip of Valium tablets secured in his wardrobe and that he was unaware that his wife may have had access to them.
In response to questions from the Tribunal, Mr Malicki confirmed that at the time he had been employed as a senior officer grade C as the human resources manager with the Department of Education, Employment, Training and Youth Affairs. He indicated that the issue of voluntary redundancy or redeployment was not the major matter, but that Ms Day's breach of confidentiality was the fact that really upset his wife and seemed to be the final straw. The failure to resolve many earlier issues was the determinant in being uncertain as to whether to take redundancy or redeployment, in that they affected particular superannuation entitlements. Nevertheless it was his belief that his wife could not return to Australian Hearing Services in view of all the events that had occurred, including her inability to cope. Mr Malicki said that he did speak with Mr Bert in November 1993 when he rang to advise him that his wife would be on sick leave and that there was a request, which was refused by Mr Malicki to disclose to Mr Bert the nature of his wife's illness.
MR BUTLERMr Butler in a statement dated 22 September 1999 (Exhibit R2) stated that in 1992 he was the operation manager for the Australian Hearing Services, and was located in an office next door to the Applicant. He stated that he first met the Applicant when she joined the organisation as corporate planning and marketing manager in 1992 and in his role he interacted with the Applicant in relation to pamphlets and brochures. The Applicant reported to Mr Bert, as did he, with her main job being marketing; other roles included Occupational health and safety and assisting in strategic planning, which was one of Mr Butler's main responsibilities.
Mr Butler considered the executive workload at Australian Hearing Services reasonably intense and that this continued to be so. He did not believe the Applicant's duties were any more pressurised or demanding than others at that level. His relationship with the Applicant was to encourage an open door approach and he believed that he regularly assisted and supported her in her work. He found the Applicant to be outwardly a "bubbly" and confident person, but on further reflection to be a little insecure and he felt her to be "wallowing". He thought that it was difficult for her to admit that she was in trouble and needed help, let alone to ask for help. He considered the Applicant to be ambitious and goal orientated, showing some sensitivity to criticism, occasionally being a bit "prim and proper" and was mostly compliant and accommodating with senior staff – sometimes to the point of trying too hard to please. Mr Butler noticed that the Applicant was coping with the job less successfully towards the end of her MBA degree. He observed that the Applicant got on reasonably well with others, but did not have a particularly good relationship with some junior staff, who found her to be too demanding. The Applicant would join in for drinks at work, but rarely stay long.
In recalling episodes of conversations between him and the Applicant in late 1995, early 1996, Mr Butler stated that the Applicant thought Mr Bert to be unreasonable at times, particularly in terms of his expectations of her and her position, but at no stage apart from seeking advice, did she ask him to intervene on her behalf with Mr Bert. Mr Butler stated that he never heard of any of the comments from either Mr Bert, the Applicant or others that the Applicant alleges Mr Bert made to her and he would find it very difficult to believe that Mr Bert would have made such comments.
Mr Butler considered Mr Bert to have a strong personality, to be a workaholic, and quite demanding but rigorous, direct and at times caring. Mr Butler attended a number of meetings as chairperson with the unions during the restructuring process and cannot remember the Applicant's name being specifically mentioned.
In his oral evidence Mr Butler amplified the office arrangements and stated that it would not be possible to overhear when voices were raised. Mr Butler also detailed the work activities associated with the annual report preparation, with the Applicant coordinating the various inputs and supervising a draft preparation. Mr Butler considered Mr Bert not to have particularly good people management skills, being somewhat variable in his approach to staff.
In cross examination, Mr Butler stated that he thought that Mr Bert, as most private sector people are, initially was somewhat sceptical and critical of public sector rules. But with time and further understanding of the complexities, he considered Mr Bert's attitude to bureaucracy to change. Mr Butler stated that he had discussed the Applicant's performance with Mr Bert and that he understood there had been a number of favourable reviews. Mr Butler confirmed that one of the last discussions he had with the Applicant, which would have been in the last one to two weeks of her ceasing work, was to do with her finding it very difficult to manage Mr Bert and that she felt he was unreasonable, and this again was to do with a product with which Mr Bert was unhappy. Mr Butler also confirmed that Mr Bert was a man who was risk averse and on occasions would seek further information before approving, which would cause some frustration for subordinate staff. On other occasions he would approve a request quickly. Mr Butler stated that Mr Bert would on occasions state matters in public which would cause some organisational and political problems, which would require corrective action by others to limit political damage. Mr Butler also confirmed the two matters raised by the Applicant and involving the parliamentary secretary did occur and that there was some organisational turbulence as a consequence. Mr Butler stated that Mr Bert would come into his office up to 12 times a day and that this was consistent with his view that Mr Bert was a walker and talker.
In response to questions from the Tribunal Mr Butler stated that there were regular meetings of the senior management group, which the Applicant would attend on some or most occasions, that morale within the organisation was good, although, while most people did not like Mr Bert, they recognised his dedication in trying to get the best for the organisation; that he considered Mr Bert a "hands on", non delegating, non trusting person and that he was surprised when the Applicant was made redundant and he was not party to that decision, although he did remember Mr Bert telling him in the last few weeks prior to the Applicant's absence on sick leave in 1996 that he was not getting on with the Applicant.
DR NOLANIn a witness statement dated 11 November 1999 (Exhibit R5) Dr Nolan stated that at the relevant time he was portfolio liaison manager, based in Canberra, involving communications between Australian Hearing Services and the relevant sections of the public sector and government. On occasions of his visits to Sydney he met the Applicant who on occasions complained of excess workload and a stressful work environment. Further it was Dr Nolans opinion that at times in the first year of his appointment the Applicant was uncertain about the full extent and scope of her duties. About six months before her departure, Dr Nolan stated that the Applicant expressed her concern to him about lack of support and guidance from Mr Bert. Dr Nolan considered the Applicant sensitive to criticism and uncertain about herself. Dr Nolan was unable to recall any occasion on which the Applicant had asked him for personal assistance or to intervene in her relationship with Mr Bert.
Dr Nolan considered Mr Bert to be a confident and self-assured man, who could express his views with strength and passion and would be perceived as a strong and directive manager. On other fronts he encouraged debate and was caring about his staff. Dr Nolan had never observed Mr Bert to be intentionally rude or disrespectful to others. He had supporters and detractors in the organisation, but on balance was respected for his contribution as managing director.
In oral evidence Dr Nolan confirmed that he had a good working relationship with Mr Bert and that he had never experienced the latter shouting at either himself or others nor utilising inappropriate sexual references. In relation to the Applicant, Dr Nolan perceived her as a professional person who had a high level of expectation of herself and others and was a hard worker who would push herself quite hard to achieve. Dr Nolan felt that in her last months the Applicant was struggling to know how to respond to criticism and deal with it effectively and as a consequence she was experiencing stress. Dr Nolan also admitted that he may have expressed sympathy to the Applicant for having to deal with Mr Bert and that he was glad to be at a safe distance in Canberra (this may have been done in a jocular and/or empathetic manner in response to the Applicant's feelings).
In response to questions asked in cross examination, Dr Nolan confirmed that the times in which the Applicant was upset were probably in the last six months; that the Applicant had not complained to him of her exclusion from work networks, meetings and committees; that he had on occasions some difficulties in getting Mr Bert to sign off, which on occasion may involve trivial issues, such as punctuation; that on occasion such actions could prove frustrating; that he completed the annual report in 1993 and that the Applicant may have approached him on another occasion to assist; that he as a human resources manager (current position human resources manager, Australian Hearing Services) he would not feel at liberty to discuss an employee's preference for redundancy with the union, but he would discuss whether a particular position was to be made excess.
In response to questions from the Tribunal Dr Nolan stated that Mr Bert and Mr Butler developed a mutual respect for each other; that he was surprised the Applicant's position was made excess and he was aware that there had been some shift in her duties.
MR BERTMr Bert stated that he was general manager and managing director of Australian Hearing Services for six and a half years, having commenced there in 1991; that he appointed the Applicant to his senior executive in 1992, when with the organisations assistance she completed her MBA; and that the Applicant to the best of his recollection was involved in marketing aspects, occupational health and safety and district planning. In the first year of her employment Mr Bert considered that it was a tough year for the Applicant and made allowances wherever possible to help the Applicant to cope with her work and the completion of her MBA. In relation to the annual report Mr Bert detailed that the Applicant's duties involved collating materials from various sources and writing into a document, with the art and creative work being undertaken by consultants. Mr Bert, when shown the e-mail of 9 November 1993 (Exhibit R7), stated that he could not remember receiving such, but it would have been his practice to sit and discuss what was behind the note with the staff member involved. In relation to this document Mr Bert was unable to recall any specific detail as to what he may have done.
Mr Bert considered the Applicant to be proud of her position and protective of her areas of work responsibilities and she would resist most strongly when it was suggested that her breadth of executive responsibilities be altered. Mr Bert stated that he would have spoken with the Applicant after her return from stress leave in late 1993, but denied any recollection of a compensation claim or at any time issues relating to a previous affair in another organisation. Further Mr Bert denied intimating to the Applicant that he might have been interested in having an affair with her. Mr Bert said that he prided himself in running an organisation that was free of harassment and in the six and a half years at Australian Hearing Services, there were little if any problems of a sexual harassment nature. Mr Bert stated that he did not shout at or in any way bully the Applicant or call her stupid and that she was a very competent manager when operating at her best. He believed her to be a perfectionist and rated her A or B and once a C on various elements during her annual performance review, which did require lengthy periods of discussion and feedback. Mr Bert considered the Applicant to be a complex person, often stressed and tense most of the time and at times he had to intervene over issues of the Applicant's management of subordinates. Mr Bert said that he could never remember having consciously excluded the Applicant from meetings, and that composition of committees did vary with task. Mr Bert cannot remember discussing with the Applicant that she would not be the subject of a redundancy unless she so elected and that when he did advise her, her response was highly emotional and disbelieving.
In response to questions asked in cross examination, Mr Bert stated that the Applicant was reliable in controlling projects, but had difficulty in creative and synthesising tasks as exampled by the annual report, in which he would have to give close supervision requiring numerous visits to her office. Mr Bert stated that the only area in which he did not supervise the Applicant's work was in the occupational health and safety area, the reason being that in the other areas she was relatively inexperienced. In relation to the first annual report of 1993 Mr Bert stated that there would have been numerous redrafts, which may have involved correction for punctuation and grammar and that the reason for lateness in publication in 1993 was more to do with signing off of financial accounts by the auditor. Mr Bert believed he was a fast decision maker; that he would be disappointed to hear people did not trust him; that he would be upset if he were the cause of stress in a staff member; that he would apologise if he were so, but cannot recall apologising to the Applicant on her return from stress leave in 1993 and subsequently; that he did grade her with a C in the annual performance review following the stress leave, and this was an objective assessment of her performance; that at the time of the sick leave episode, the Applicant was under the pressure of a normal manager in a large government office at the time; and that while continuing to do the annual report in subsequent years the Applicant was provided with better commercial consultant support, there having been significant disappointment with the writers undertaking the first and second draft in 1993, and he continuing to have some doubt about the Applicant's writing style.
Mr Bert stated that it was not his style to take his anger and/or frustration out on his staff; that he did not recall requiring anybody to sit in his office after hours and discuss matters with him, but no doubt that as with every officer she may have discussed matters in his office after hours, and this may have on occasions taken some hours to resolve the issue in question; that despite marketing becoming an increasingly important function, the making of the Applicant's position as excess was a reflection on his ability to carry the marketing function; and that he denied any detailed negotiation or reduction of hours in relation to the Applicant's claims for time in lieu.
In response to questions from the Tribunal, Mr Bert believes he is a well ordered thinker who prioritises his work, has a good strategic basis, and likes working with clever people, who he further likes to develop. Mr Bert believes himself to be achievement orientated, and responsible to his various stakeholders, and thought that his staff would have seen him as loyal, ethical, hardworking and logical, as well as being analytical and consistent. Finally Mr Bert admitted that he was a little frustrated with the Applicant's ability to undertake the marketing and strategic planning function in a commercial environment, but had never really questioned her competence, and that the decision to make her position redundant was a difficult one, made in response to organisational requirements and financial constraints.
MR KIMBELLMr Kimbell told the Tribunal that he was the financial controller at Australian Hearing Services in 1992 (grade B, later upgraded to grade A) and that he met the Applicant shortly afterwards. He found her to be a very conscientious, highly strung, sensitive person with perfectionist tendencies. Mr Kimbell thought Mr Bert and the Applicant worked well together, but noted that the annual report period was a stressful time with them both being irritated by the many changes, and the Applicant finding the process frustrating. Mr Kimbell described Mr Bert's relationship with staff as being controlled, devoid of outbursts, involving the giving of praise when due and generally he found him a person good to work with. Mr Kimbell stated that apart from the annual report episode in 1993 he was never asked by the Applicant to intercede in her dealings with Mr Bert, that to all extent and purposes the Applicant and Mr Bert had a cordial working relationship; and that the Applicant was surprised when she was made redundant (came into his office) and that she was upset.
In response to questions asked in cross examination, Mr Kimbell stated that there had been times when Mr Bert was slow in making decisions, and that on some matters Mr Bert was risk averse (investment of funds policy), but he considered that Mr Bert was being careful and he was not frustrated by the inaction.
MR PETERSONMr Peterson in his written statement (Exhibit R3) stated that he was employed in the position of human resources manager in December 1992 (senior officer grade B, later upgraded to A). He met the Applicant at that time and as far as he can recollect all senior management positions were well structured and a job description existed for all of them. Mr Peterson stated that the annual report process was an important activity for the new statutory organisation. He can recall the Applicant taking two weeks leave in November 1993, after particular issues arose concerning the annual report, with the Applicant having left work, being somewhat unhappy. He does recall suggesting to the Applicant during 1993 that she defer some of her MBA studies as she was finding the pressure of work and study demanding. Mr Peterson stated that he and the Applicant drove home from work together on the average of once a week for a year or so and he does not recall her ever saying that she was too sick to work or becoming tearful. In discussions with the Applicant over problems of communication between her and Mr Bert, Mr Peterson, realising that she was finding it difficult, would make suggestions related to assertiveness on how to deal with Mr Bert, but at no point does he remember being asked to mediate or suggesting that she should walk out of her office. Mr Peterson stated that, being well aware of the Applicant's attitude to personal privacy, he and his staff were very careful in dealing with all aspects of her departure from work in May 1996.
In oral evidence Mr Peterson confirmed that all members of the executive team attended the group executive meeting, which was held on a weekly or fortnightly basis, with some change in composition over time. Mr Peterson considered Mr Bert a fair and supportive manager, who in his experience never shouted at staff or made sexual references in the workplace or conducted himself inappropriately. Mr Peterson can remember the Applicant having difficulty with a junior marketing officer in January 1996, which was the culmination of some ongoing interpersonal difficulties. Mr Peterson, while aware of the requirements for and approach to downsizing, was not party to the decision to make the Applicant redundant. He stated that the appropriate process was instituted in his absence by Ms Day and that following the Applicant's departure, initially on sick, leave there was in accordance with process, an appointment made for the Applicant to see the Commonwealth Medical Officer ("CMO"). Mr Peterson stated that this appointment was unsatisfactory as the CMO reported the Applicant as being uncomfortable in having to attend such an appointment.
Mr Peterson confirmed that a meeting was held at Parramatta at which Ms Ormand and Mr Malicki attended and at which the options of redeployment and redundancy were discussed. The decision for election of an option remained with the Applicant, with Mr Peterson stating that a decision was expected within a reasonable time frame, with a request for a longer time frame probably being discussed.
In response to questions in cross examination, Mr Peterson believed there were difficulties in communication between Mr Bert and the Applicant as evidenced by episodic frustration by the Applicant; that he could not specifically recall a change in the Applicant's attendance at the executive meetings; that he took over the Occupational health and safety function about a year before the Applicant departed and this was a decision taken by Mr Bert which reflected general industry practice; that during the car trips home which he shared with the Applicant , they did discuss their interactions with Mr Bert, but he cannot recall ever being asked to serve as a mediator in November 1993, nor would he have felt it appropriate to undertake such a task, with his preference for such an activity to be done by an external person; that at this time he does not remember the Applicant being tearful or that at times she was feeling unwell; and that the process of contacting the Applicant after her departure on sick leave in May 1996 was consistent with the guidelines and his knowledge of the Applicant's desire for privacy, and the communications by Mr Malicki requesting a deferral of a decision until after they returned from their planned trip to South America in September 1996.
In response to questions asked by the Tribunal, Mr Peterson confirmed that there were established grievance, sexual harassment and harassment policies and procedures in place during the Applicant's period of employment, and that they were reviewed and widely promulgated throughout the organisation. Further Mr Peterson stated the Applicant never approached him for information about personal harassment issues and that to the best of his knowledge there were only two sexual and one general harassment claims made during the five years in question.
MS DAYIn oral evidence Ms Day stated that she was a human resources adviser at Australian Hearing Services commencing in February 1994, and that previously she had worked with Mr Malicki, but prior to commencing at Australian Hearing Services had never met the Applicant. In her role at Australian Hearing Services she assisted the Applicant in the Occupational health and safety function, but reporting on other matters to Mr Peterson, which included project policy work on equal opportunity and harassment issues. In her role Ms Day believed she had a reasonable working relationship with the Applicant. In her dealings with Mr Bert she formed the opinion that he took his role seriously and appeared a fairly stern sort of person. She never saw any signs of aggression displayed by Mr Bert towards her or any other staff members, nor did she hear him shout at anyone or use inappropriate sexual references. In her contact with the Applicant, Ms Day stated that they exchanged comments (whether good or bad) about their respective superiors; that the Applicant did not on any of the occasions of such discussions appear emotionally disturbed, and that despite conversing with the Applicant on a number of occasions on issues particular to harassment policy, the Applicant never raised the issue of personal harassment and never sought Ms Day's intervention or assistance on such matters. Ms Day found the Applicant to be a demanding supervisor, that she was very particular and at times she felt a bit stretched. Ms Day considered the Applicant to be somewhat unusual in that she presented as a professional person while at times being unworldly.
In relation to the declaration of excess positions, Ms Day stated that it was necessary to formulate a list of positions to be declared excess, nominate the individuals who occupied the positions and provide such information to the union while at the same time the individuals were being informed. Ms Day's specific role was to act as first point of contact for individuals to be advised of their options and this she did with the Applicant. Ms Day observed that the Applicant was upset about the redundancy and in her discussion with the Applicant, the latter stated that she did not want the content of their discussions being told to either Mr Bert or Mr Peterson, and Ms Day agreed that she would only pass on such information as was absolutely necessary to so do. Ms Day stated that after one meeting with the union, a Ms McLaughlin approached her stating that the Applicant had been quite upset as a result of Ms McLaughlin informing her of something that was said in the meeting, dated 29 May 1996.
In response to questions in cross examination, Ms Day confirmed that Ms McLaughlin told her that she had told the Applicant that Ms Day had mentioned her name at the meeting in relation to being referred to a particular body. Ms Day stated that the Applicant's name arose as she had discussed and was desirous of an early referral to the Labour Market Adjustment Branch for redeployment ("APSLMAB"), and the union was desirous that early action for referral should not be taken and that they would require a written request by a person desirous of referral before action was to proceed, which Ms Day argued may be a disadvantage to those who have already requested such a referral. Ms Day considered her disclosure to the union to be consistent with what was necessary to inform the union in relation to any particular individual. Ms Day stated that he Applicant had never mentioned any earlier discussion between her and Mr Bert in relation to her job, and that initially the Applicant was rational when asking about her options, and acting as a practical person looking to her future. Later Ms Day considered the Applicant to become variable in her approach and very upset.
MEDICAL EVIDENCE - DR HOUWING
Dr Houwing, a general practitioner, in a medical report dated 29 July 1996 stated that the Applicant was suffering from post traumatic stress syndrome and depression; that she was making slow progress and that it would not be appropriate for the Applicant to return to work at Australian Hearing Services, although after a further period of rest and recuperation she would be able to return to employment in a different organisation (T4, 11). In a report dated 30 March 1998, Dr Houwing, detailed extracts from brief notes of Dr Moussa and Dr Douglas for the 10 and 18 November 1993 respectively, stating that the Applicant was having increasing stress at work and problems with her boss. Recommendations were made for assertiveness training and some time off work, which should be claimed as workers compensation. Over the next few years Dr Houwing reports that he Applicant presented with a number of stress related problems, including headaches (January 1996), heart problems (January 1996), lump in throat (April 1996), distress (29 May 1996), recommendation for referral to psychiatrist, depression and a growing list of depressive symptomology (29 July 1996). In August 1996 Dr Houwing described the Applicant's condition as improving and on 2 December 1996, following a holiday, as "wonderful holiday feeling great again". By August 1997 Dr Houwing reported the Applicant as suffering from a major depressive episode and commenced the Applicant on anti depressive medication and one month later a referral to Ms Blackburn, a clinical psychologist. Her symptoms at this time were described by Dr Houwing to include nightmares, early morning wakings, panic attacks, loss of appetite, suicidal thoughts and difficulties with concentration. Following improvement in late 1997, Dr Houwing reports a relapse after the Applicant had a consultation with Dr Donsworth in February 1998. Dr Houwing considered the Applicant to have an adjustment disorder with mixed anxiety and depressive features (T39, pp77 – 83).
In oral evidence Dr Houwing confirmed that the Applicant continues to have mood fluctuations, associated with her depressive illness with anxiety symptoms. She has noticed this symptomology to be worse when the Applicant has ceased taking her anti depressant medication. In response to questions in cross examination, Dr Houwing stated that there were no complaints of difficulties in the workplace between November 1993 and April 1996, although she considered the lump in the throat syndrome to be stress related in early April 1996; that the Applicant was protective of her workplace; that the retrenchment matter of 29 May 1996 had some significance to the Applicant; and that the Applicant's condition has not improved since June 1996.
MS BLACKBURNIn a report dated 13 March 1998, Ms Blackburn stated that in her opinion the Applicant does exhibit the symptom pattern of post traumatic stress disorder, due to the long term nature of the stress suffered at work and that she suffers from depression due to work related stress and an adjustment stress disorder following trauma at work (T35, pp69 – 73).
In response to questions in cross examination, Ms Blackburn confirmed that the Applicant's complaints centred around Mr Bert's intimidation and bullying, which consisted of increasing workload, changing priorities and explosive emotional outbursts. Ms Blackburn stated that her therapeutic endeavour was aimed at the Applicant being able to discuss her trauma and stress, and that while discussing the issue of a Comcare claim with the Applicant (did not initiate such a discussion), she did form an impression that the Applicant had been the subject of injustice in the workplace, as there appeared to be no formal mechanism for dealing with issues at her level of management. Ms Blackburn also stated that she became more proactive on behalf of the Applicant, following the latter's intention to sever the therapeutic relationship and that it mattered only in the context of distortion and mode of therapy to be adopted, if what the Applicant had related was a significant variation on reality.
DR DONSWORTHIn a written report dated 6 April 1998, Dr Donsworth, a consultant psychiatrist, concluded that the most accurate diagnosis for the Applicant's condition was adjustment disorder with anxiety, the diagnostic indicators being a stresser (abolition of her employment and her uncertainty about her future) leading to marked distress and leading to significant impairment in social and occupational functioning, with the precipitating factor being the breach of privacy which occurred on 29 May 1996. Further Dr Donsworth believed that as a result of strong personality factors evident in the Applicant, the Applicant's perception of the situation in her employment may not be congruent with other people's perceptions. Further Dr Donsworth was of the opinion that under the stress of her position, some of the Applicant's pre-existing personality traits became more evident, for example her sense of entitlement, her suspicion of others and some histrionic behaviour. The resulting emotional decompensation and adjustment reaction with anxiety had affected the Applicant's self esteem and self image, with absence from the workforce exacerbating her pre-existing dependency traits. In summation Dr Donsworth stated that this is not a case of a pure psychiatric disorder caused by a pure stresser with both Ms Blackburn and Dr Houwing accepting the Applicant's statements at face value without any objectification or attempt to understand the meaning of the events to the Applicant and why she has reacted the way she has. Dr Donsworth also cautioned on the risks of frequent counselling in a personality such as the Applicants in that dependency needs are gratified and encouraged, and that there is a real risk that sickness and perception of incapacity are iatrogenic (T43, pp89–101).
In oral evidence, Dr Donsworth confirmed her diagnosis of adjustment reaction with anxiety, largely complicated by personality factors. She stated that the Applicant continues to overstate to a considerable degree whatever emotional experiences she is perceiving in herself at any time and accordingly what she purports to present as being her symptoms are not necessarily a true representation of what she is actually feeling; and that Drs Kneebone and Morse have failed to take this into consideration when making a diagnosis of major depression. Further Dr Donsworth concluded that the ability of the Applicant to complete her post graduate studies and the presence of continually good assessments by her supervisor through to 1996 are inconsistent with a psychiatric illness or not coping with work. The breach of privacy matter, in Dr Donsworth's opinion was unable to be explained by the Applicant as to what damage it had done to her reputation or status or what injury she had actually suffered. This in Dr Donsworth's view appears to relate to the Applicant's denial that the issue of redundancy was a significant stressor, and that the Applicant is not truthful when she describes her feelings on being told that her position was being made excess.
In response to questions in cross examination Dr Donsworth considered the Applicant's letter to her treating therapist, Ms Blackburn, quite unusual, in that the Applicant used language in a very dramatic manner, which Dr Donsworth believed consistent with an established personality trait.
DR MORSEIn a medical report dated 17 August 1998, Dr Morse, a consultant psychiatrist, considered that the Applicant had suffered a severe depressive illness, ongoing generalised anxiety state, panic attacks and agoraphobia, all due to stress and harassment at work over a period of two years. Dr Morse stated that he was in no position to make a judgement of the accuracy or otherwise of the Applicant's description of the experiences that she had, nor of the nature of the organisation. Dr Morse nevertheless concluded that the Applicant felt that she was at the mercy of this person (Mr Bert) to harass her with little supervision or intervention from any other person (T66, pp152–161).
In a further report dated 5 October 1999, Dr Morse confirmed his earlier opinion and further stated that he did not agree with Dr Lewin's conclusions regarding her psychiatric condition nor with his conclusions that she did not claim to be suffering from stress in the work situation (Exhibit A2).
In response to questions asked in cross examination, Dr Morse stated that it would make no difference to the opinion expressed in his report of 17 August 1995 or to the basis for the diagnosed illness, if the facts as described by the Applicant were not true, for her condition and his diagnosis thereof is based on her perceptions and experiences of the workplace. Dr Morse stated that depression, personality disorder, or previous major trauma of any sort can skew and interfere with the reality testing of a person's perceptions in certain situations. Further Dr Morse opined that if none of the circumstances in the workplace existed as told to him by the Applicant, this would amount to a marked distortion in the perception of events and a reinterpretation of events for some reason. Dr Morse also considered that the Applicant had found it difficult to work for quite a period when she was at work, this resulting from the normal experience of her not wishing to relate to a superior and all the other circumstances at work, and this coupled with intrinsic factors of depression and anxiety led to the Applicant not being able to go to work.
In response to questions from the Tribunal, Dr Morse considered the Applicant to have the following personality traits: somewhat dependent, low self esteem, low self confidence, perfectionistic, achieving, self involved, narcissistic, greater belief in her powers and abilities than is normal and a paranoid belief about being poorly judged. In giving such an opinion on personality Dr Morse cautioned care by virtue of his limited exposure to the Applicant and that depression often has the effect of exaggerating negative aspects of personality.
DR KNEEBONE
In a written report dated 18 September 1999, Dr Kneebone, a consultant psychiatrist concluded:
"Following my assessment of Jennifer I felt that there was little doubt that she had a chronic major depressive illness that was still only in partial remission occurring against a background of having been repeatedly traumatised at her workplace in which she experienced significant fear and intimidation over a protracted period. Jennifer was unable to extricate from her circumstances because of her pride in her diligence and competency and her belief that she should be able to cope no matter what arose. Perpetuating her illness has been her sense of shame and the protracted as well as adversarial nature of the worker's compensation scheme." (Exhibit A3).
In oral evidence Dr Kneebone, the treating psychiatrist, stated that there had been minimal improvement in the Applicant's condition since he commenced caring for her. Dr Kneebone also commented that the Applicant felt that she had been irretrievably damaged by what occurred in the workplace, that she won't recover and that she's permanently incapacitated.
In response to questions in cross examination, Dr Kneebone said he was dealing with a person's recollection of events and memory of events rather than necessarily historical truth; that he sees the Applicant as a person who has been emotionally traumatised and that she had a pre-existing emotional vulnerability by virtue of her personality traits; that she was dealing with an interpersonal situation in the workplace for which she was ill prepared, that she would respond to criticism of her work in a deleterious way; that there was a dysfunctional working relationship between the Applicant and her superior for many years; and that sensitivity to criticism arising from perfectionistic tendencies would result in a person being devastated by the concept of accepting redundancy.
DR LEWIN
In a report dated 4 June 1999 Dr Lewin, a consultant psychiatrist, concluded:
"In my opinion, Mrs Malicki had an Adjustment Disorder in the aftermath of the events of May 1996. She strongly argues that all her distress arose because of harsh treatment, harassment and intimidation by Mr Philip Bert. When I read his statement, he did not support such an interpretation. The facts of the matter are for the courts to decide. In reaching my conclusions I relied particularly on the sequence of facts revealed in the documents. Her complaints arose within a particular context. Matters came to a head only in the aftermath of a decision to abolish her position. Mrs Malicki suggests that her workplace was unsatisfactory before this, but there is no record of any complaint or illness prior to May 1996. It is remarkable that her claim for worker's compensation was made a considerable time after Mrs Malicki left the workplace.
I diagnosed an Adjustment Disorder which is a reactive condition manifesting symptoms of anxiety and depression. In my opinion this condition was primarily caused by the loss of her job and all the changes that flowed from this. Mrs Malicki has developed a range of beliefs and perceptions since that time. In my view, these beliefs and perceptions have been influenced by events that have followed. This includes her treatment in a twice-weekly basis for more than a year. There are other beliefs such as her belief that she has migraine and her belief that she has brain damage. These are beliefs which are not based on reasonable medical judgment. I noted a tendency to use extreme language and to worry excessively. It is likely that these are features of her long term functioning.
At the present time Mrs Malicki is not suffering from any psychiatric illness. However she perceives herself to be grossly disabled." (Exhibit R1).In oral evidence, Dr Lewin stated that if the events as described to him by the Applicant did occur or exist in the workplace, one would have to look elsewhere for the cause of the adjustment disorder; that at the time of his assessment on the basis of symptoms there was no serious psychiatric illness present; and that he was concerned about the frequency and continuance of the counselling given to the Applicant by Ms Blackburn.
In response to questions asked in cross examination, Dr Lewin considered that the Applicant at the time of his assessment had a pattern of behaviour where there was an intense focus on worry and concern and beliefs about her state of health which were not consistent with his psychiatric diagnosis; that persistent bullying can induce a psychiatric disease, with the vulnerability being more intense in a person who is anxious to please, to be praised and impress; and that the list of symptoms sent to him by the Applicant in 1999 were not the symptoms of illness, but rather a reflection of a person who was in a difficult predicament and who was distressed.
SUBMISSIONS
Counsel for the Applicant submitted that liability is clearly existent when the ordinary duties of a position have a certain effect on a person and cause illness. It doesn't have to be an exceptional or extraordinary work condition. In turn Counsel directed attention to the Applicant's characteristics as described by her husband when he first knew her and what now exists, namely a person who is socially withdrawn, suffers from panic attacks and able only to meet minimal teaching obligations which are done with a degree of uncertainty. Counsel further submitted that recovery from the continuing depression suffered by the Applicant is impeded by the Applicant having to confront her experiences in medico legal appointments, and that it was because of this that it was more than appropriate for Ms Blackburn to ring Dr Lewin prior to the Applicant's appointment, and that much was to be gained from the evidence of the two treating practitioners, Ms Blackburn and Dr Howing.
On the issue of causation Counsel submitted that no one was aware of what went on between the Applicant and Mr Bert, other than the two participants, with, as stated by Dr Kneebone, the Applicant being the wrong person in the wrong place at the wrong time. In essence, the Applicant had the misfortune of working for a person with whom she was completely incompatible, and further working in an area that was of particular interest to him, and that he in turn, in terms of successful marketing of the organisation would ensure that the Applicant, his subordinate, carried through the delegated tasks to his satisfaction.
Counsel submitted that the Applicant's evidence was clear, firm and should be believed and that denials by Mr Bert of statements and activities inconsistent with a moral and diligent person should come as no surprise. That the Applicant is a prim person, sensitive and vulnerable, eager to impress and uncertain about her ability to satisfy her superior's work demands would in Counsel's submission indicate that Mr Bert has not necessarily been totally reliable in his description of the interaction between him and the Applicant. Further Counsel suggested that Mr Bert was defensive and had difficulty in describing how he was perceived by his employees, but was respected and acknowledged for his commitment to the organisation. In relation to the issue of pressure on the Applicant by Mr Bert, Counsel submitted there was clearly objective evidence of this in the November 1993 incident, and in so stating relied on the evidence of the Applicant, her husband, Mr Kimbell, and Dr Nolan. Further Counsel submitted that actions taken by Mr Bert to remove the Occupational health and safety function from the Applicant some twelve months before the departure and actions to limit the Applicant's involvement in committee and executive meetings were again part of a process to increase pressure on the Applicant. Further actions taken by Mr Bert and he alone to make the Applicant's position excess in the light of a growing requirement for a marketing function are in the Counsel's view difficult to understand, as was the failure of the organisation to offer the Applicant any assistance after she became ill in May 1996.
In relation to issues surrounding the notification by Mr Bert to the Applicant that her position was to be declared 'excess', Counsel pointed to the significant contrast that existed between what Mr Bert told the Tribunal (Applicant very upset and emotional) and the performance report prepared by him a few months before and sent to the CMO (her reactions were consistent with others who were in similar situations), the later assessment being consistent with that stated by Dr Houwing. Counsel submitted that the issue which drove the Applicant from the workplace was the unfortunate and unnecessary breach of privacy which was made known to the Applicant on 29 May 1996.
Counsel submitted that the delay in both seeking treatment and compensation is best explained and understood by the evidence of the Applicant and her attending general practitioner, Dr Houwing. In terms of medical opinions expressed in this matter, Counsel submitted that Dr Lewin was a wordy and evasive witness, who appeared to accept every word of Mr Bert's statement, and formulate an opinion accordingly. Counsel submitted that Dr Donsworth's evidence was less than credible in that because the Applicant had written her history and described her symptoms in such colourful rhetoric, it should not be believed. Further, Counsel submitted that Dr Donsworth's opinion that anyone with the Applicant's life experiences would develop an adjustment disorder as a result of being made redundant, was a conclusion drawn without any attempt to link with anything the Applicant told her. In contradistinction, Counsel submits that Dr Morse was careful in addressing the issue of personality factors in a depressed person, and that events which unfolded during the course of her employment may have produced an adverse effect on pre-existing personality factors.
RESPONDENT
Counsel for the Respondent submitted that the Applicant's response to advice on 21 May 1996 that her job was to be declared excess, and that there was the possibility of losing her job, is very significant and while it occurred in the place of employment, it is not an aspect of her employment and hence any injury is not compensible. In support of the position counsel directed the Tribunal's attention to a letter from the Applicant to Mr Peterson where the Applicant states that she has "decided to accept redundancy reluctantly because of the adverse affect to my health flowing from the abolition of my position and consequential actions". Further, Counsel submits that the effect on the Applicant of the position being declared excess is clearly detailed in Dr Houwing's notes for that period.
Counsel submitted that the Applicant had particular personality attributes and particular work experiences prior to commencing her position at Australian Hearing Services, which exposed her to new tasks and a demanding superior and this resulted in the Applicant taking a few weeks leave as a result of difficulties experienced in completing the annual report in November 1993; that nothing of significance apart from a minor grumble at work occurred during the next two years; that the Applicant by a skewed perception of events has presented a very different history of events to those that actually happened; that such a skewed perception has been reinforced by the repeated relating of the story to her treating psychologist and other therapists; and that the dreadful grief experienced by the Applicant is but another feature of the Applicant's personality traits of histrionic representation. Counsel further submitted that Dr Kneebone, the Applicant's treating psychologist was particular when he stated that the Applicant had a perception of events particular to her; that she had no insight; that her fear of leaving equated with her fear of failure; and that the voluntary redundancy would have been devastating to her. As a consequence Counsel submits that if an illness occurs as a result of an individuals perception of the workplace and not the reality of the workplace, then the injury (illness) is not compensible and in so stating relies upon the finding in Van Houten and Comcare (AAT 12339, 24 October 1997).
Counsel detailed the Applicant's perception of events and the events as described by other witnesses and argued that the Applicant was manipulating issues and activities to present her case in the best light. Further, while acknowledging that the workplace in question was not a stress free environment, for stress induced illness to be compensated the condition must be one which is outside the boundaries of normal mental functioning.
CONSIDERATION AND FINDINGS
After considering the significant amount of evidence available in this matter, the Tribunal makes the following observations:
(a)the Applicant was a highly intelligent person, with a successful academic record and evolving career in her chosen field of occupational therapy when she was selected to occupy the position of senior officer grade B at Australian Hearing Services in February 1992;
(b)that the position at Australian Hearing Services involved the Applicant in responsibilities for marketing, strategic planning and occupational health and management for the organisation and she reported directly to Mr Bert, the chief executive officer;
(c)at the time of commencement the Applicant was not experienced in either marketing or strategic planning or necessarily in the general management of organisations. Her experience was in occupational health and safety, with exposure to other activities having occurred during her yet to be completed business administration program;
(d)at the time of her commencement it was ordained that the Australian Hearing Services organisation was to change to a separate statutory organisation with a board within the public sector, thus being established with a separate corporate entity to its previous parent (Department of Health and Community Services);
(e)at the time of commencement the Applicant had particular personality characteristics, namely she was intelligent, ambitious, high achieving, loyal, sociable, confident, goal orientated, able to cope, sensitive to criticism, perfectionistic and conservative, with a high self image and high self esteem, a sense of entitlement and a degree of dependency;
(f)that at the time of her commencement the Applicant considered herself to be a sound bureaucrat, somewhat lacking in political nous. She had good people and talking skills, would plan and organise activities; prioritise and schedule undertakings and would like to get on and do her work;
(g)during the first 18 months the Applicant was much involved in developing the corporate image and corporate policies as well as completing her MBA program with the support and assistance of the organisation;
(h)from July/August 1993 the apparent peaceful organisational harmony as espoused by the Applicant commenced to dissipate, with the Applicant experiencing difficulties in working with her superior, Mr Bert. At around this time both Mr Butler and Dr Nolan commented that the Applicant seemed to be not coping as well with her job demands;
(i)the production of the annual report in 1993 was a period of significant difficulty for the Applicant, in that she was unable to produce a report to the satisfaction required by Mr Bert and that as a result she felt unable to continue and was placed on sick leave by her general practitioner in November for a period of two weeks, with a medical note on 18 November 1993 indicating stress at work and not being able to cope;
(j)during the period in question (1992-1996), Mr Bert was described variably by his executive (Mr Butler, Mr Kimbell, Dr Nolan, Ms Day and Mr Peterson) as a strong personality, workaholic, risk adverse, quite demanding, vigorous, at times caring, "hands-on", non-delegating, non-trusting, lacking in personal management skills, a "walker and talker", not liked by most but able to work with him, and a lack of timeliness on occasions in decision making;
(k)the Applicant described Mr Bert as intelligent, forthright and direct and respected him for his authority and the pride he took in the organisation. Further she found him to be excessively demanding, nit picking (grammar, punctuation, style), not well liked by staff, difficult to work with, upsets people, bullying, task orientated, autocratic, authoritarian, and while not a people person was caring at times, an erratic decision maker and resistant to public sector rules, and would not leave her alone to do her work;
(l)the Applicant was seen by other members of the executive during this same period as outwardly a bubbly and confident person, but on deeper appreciation insecure and wallowing; she was a person who found it difficult to admit that she was in trouble, recognise that she needed help or ask for help; ambitious and goal oriented; sensitive to criticism; not coping with her job towards the end of her MBA; tried too hard to please; demanding of junior staff; and a general understanding that she found Mr Bert unreasonable;
(m)the Applicant was seen by Mr Bert as proud, protective of her responsibilities, perfectionist and a complex person, who was stressed and tense most of the time. He had to intervene over issues of her management of junior staff. He found her reliable in controlling projects but she had difficulty in creative and synthesising tasks (annual reports); he became a little frustrated with the Applicant's ability to undertake the marketing and strategic planning functions of her role. She was highly emotional and disbelieving when in May 1996, he told her that her position was to be made "excess". During her period with Australian Hearing Services, he rated the Applicant generally as an overall "B", with each category being rated in accordance with her performance during the year under review;
(n)the Applicant stated that Mr Bert was rude, abusive, shouted at her, would not let her finish her work, was unhelpful in setting of priorities, was demanding, changed priorities at will, was slow in decision making, was demanding of her time after hours to discuss work; threatened her in relation to the suggestion of a compensation claim in January 1994; and talked to her about issues and matters which implied sexual overtones. The Applicant said all these events occurred behind closed doors with only her and Mr Bert present and occurred during the period of her employment. She also claimed that this was involving exclusion from organisational activities, meetings and social events;
(o)Mr Bert denied that he did any of these things, and his executive staff in evidence stated that they were unaware of all these activities with the exception of his tendency to visit an office many times in the day, when an activity was occurring in which he had a particular interest and a tendency to be careful in making decisions;
(p)during the period 1994/1995 the Applicant continued in the same role with some added tasks (quality assurance) and she and her husband stated that she continued to have difficulties in dealing with Mr Bert's expectations and demands, particularly at times of major importance (board meetings, annual reports etc). In 1995 the responsibility for occupational health and safety was transferred to human resources;
(q)during the last six months the Applicant was continuing to have difficulty in coping with and addressing the issue of her working relationship with Mr Bert as evidenced by the Applicant's statements, and those of her husband, Dr Nolan and Ms Day and within the last few months by the evidence of Mr Butler;
(r)on 21 May 1996 the Applicant was advised by Mr Bert that her position was being declared "excess" which surprised the Applicant. There are varying reports as to how she responded to this advice but she continued to work;
(s)on 29 May 1996 the Applicant responded dramatically to the suggestion that her name was mentioned in a management union meeting by Ms Day, an issue which she considered a gross breach of privacy. This caused her a great deal of distress and the consequences of this distress are detailed in the continuing evidence;
(t)following consultation with Dr Houwing on the evening of 29 May 1996, she was placed on sick leave. Receipt of the formal notice of her position being made excess in June 1996 caused further deterioration in her condition and her decision to elect redundancy in August 1998 was a reflection of her desire to return to Australian Hearing Services, and the adverse effects on her health that had occurred; and
(u)subsequent events include an overseas holiday in September 1996; an attempt at self-rehabilitation in 1996-mid 1997, including a part time teaching appointment at TAFE (four hours per week); a deterioration in her condition in August 1997; institution of psychological counselling (Ms Blackburn) and anti-depressive medication; a claim for compensation; difficulties with both her counselling therapist and a psychiatrist giving an opinion for the Respondent; and further opinions from psychiatrists and the institution of therapy by a treating psychiatrist in 1999.
The Tribunal in having made observations concerning the evidence rendered in this matter now moves to making particular findings of fact. These are:
(a)the Applicant had a particular education, work experiences and personality characteristics when she commenced working at Australian Hearing Services in February 1992 in a role involving marketing and strategic planning, of which she had no previous work experience, and occupational health and safety, of which she had prior experience. Personality characteristics were listed in paragraph 120(e) (executive), 120(f) (self), 120(m) (Mr Bert) of these reasons for decision;
(b)the Applicant was having difficulties in coping with her job by July/August 1993 (Mr Malicki, Dr Nolan);
(c)during the months of preparation of the 1993 annual report the Applicant had much difficulty in satisfying the requirements of the chief executive officer and that this culminated in her taking a period of stress sick leave in November 1993, followed by a holiday in Thailand;
(d)during 1994 and 1995 the working relationship between the Applicant and her superior continued with difficulties arising at times of work pressure (annual reports, board meetings etc);
(e)during the last months of 1995 and the early months of 1996, the Applicant was having increasing difficulties with Mr Bert (Applicant, Mr Malicki, Dr Nolan, Mr Butler, Ms Day) and Mr Bert was experiencing a little frustration with the Applicant's ability to undertake the marketing and strategic planning function (Mr Bert), the occupational health and safety function having been transferred to human resources in mid 1995;
(f)on 21 May 1996 the Applicant was informed by Mr Bert that her position was to be declared "excess". This was a decision taken by Mr Bert alone and a decision which was a surprise to the Applicant and other members of the executive team;
(g)on 29 May 1996 the Applicant was informed by Ms McLaughlin that her name had been mentioned by Ms Day in a management union meeting. That such a disclosure was a breach of an undertaking given by Ms Day to the Applicant caused the Applicant much distress, forcing her to leave work and later that evening to consult with Dr Houwing who wrote a certificate for sick leave. A formal letter was issued to the Applicant in early June 1996 concerning the fact that her position had been declared excess and as to what options she may elect to pursue;
(h)that consequent to a meeting on 6 August 1996, the Applicant elected to take redundancy. Following a period of overseas travel to attempt self rehabilitation, which also involved teaching at TAFE for four hours per week commencing in February 1997 and continuing and a short period of assisting in consultancy work (seven days).
(i)by August 1997, anti depressive medication was commenced and psychological counselling was commenced with Ms Blackburn. A claim for compensation was made in November 1997 and assessments in relation to this claim made by Drs Donsworth, Lewin, Morse and Kneebone (treating psychiatrist since August 1999);
(j)the Applicant has detailed her perception of events since joining the organisation; many of the events relate to activities in which she and Mr Bert were the only participants and there are many events and statements made by the Applicant which Mr Bert denies saying or doing. In this regard many of the statements/activities purported to be made or done by Mr Bert are in the view of the remainder of the executive staff inconsistent with their experience of Mr Bert and his code of behaviour; and
(k)Mr Bert had the personality and management characteristics as described by himself and his staff during the period in question (paragraph 120(j)(executive), 120(k)(Applicant).
In considering the various findings of fact, the Tribunal moves to an assessment of the facts against the background of the medical, psychological and psychiatric evidence in this matter. The following findings are made:
(a)the Applicant had particular personality characteristics and management experiences when she joined Australian Hearing Services in her role as described. The Applicant's personality characteristics were of a nature which made her vulnerable to circumstances in which she could not cope. Her reactions in such circumstances would be a loss of confidence, a desire to try harder, guilt, a loss of self-esteem and a fear of failure. The Tribunal notes that it was evident to others that she was not coping with her work diversity by July/August 1993, and a continuance of this non-coping culminated in the annual report episode of November 1993, with the Applicant giving way to the stress of the circumstances arising from an over demanding and task orientated superior who wanted the best annual report. Thus in the Tribunal's view an environment was created in which the interpersonal tensions between the Applicant and Mr Bert were established and continued to be acted out through to the day she left the organisation and thereafter. The tensions and stresses in the interpersonal relationship between Mr Bert and the Applicant were real tensions arising from issues, actions and desires by both parties to achieve particular outcomes in the work place, and certainly arose out of activities concerned directly with workplace requirements. The Tribunal observes that once established, and by virtue of both the work circumstances and the personality of the two characters, the tensions were never resolved, as evidenced by the continuing history of turbulence and increasing frustration with each others work attributes and expectations. The Tribunal notes the evidence of increasing difficulty, inability to cope, frustration and guilt being expressed by the Applicant to others in late 1995 and the early months of 1996. This was fuelled in part by the removal of the occupation health and safety function and the increasing frustration expressed to the Tribunal by Mr Bert, concerning the Applicant's ability to undertake marketing and strategic planning functions;
(b)the events of 21 May 1996 and 29 May 1996 were in themselves aggravating factors, contributing to what had already been established and experienced by the Applicant and Mr Bert and expressed to and observed by the remainder of the executive. Both events are in the Tribunal's finding significant in that they confronted the Applicant with visible evidence of her failure, and the additive effect of the two events culminated in a barely stabilised personality becoming destabilised, as evidenced by the psychiatric clinical disorder variously diagnosed by the psychiatrists as an adjustment disorder with features of depression and anxiety or alternatively a major depressive disorder (Dr Lewin dissenting);
(c)the issue of the Applicant's perception of issues, events and statements is a perception to which she holds. The Tribunal without going into particular dissection of every perception, is satisfied that the Applicant's perception of a difficult working relationship with Mr Bert is a realistic perception, a perception which grew over time as difficulties arose in their interpersonal working relationships. The Tribunal however, while making no finding on those many issues and statements for which there is no corroboration, is satisfied that there is sufficient corroborated evidence to conclude that the Applicant's perception of a difficult work environment encompassing her and Mr Bert was based on real issues (eg Mr Bert's perfectionism, over demanding style, changing practices, risk averse decision making, non delegation of work etc). Further the Tribunal is satisfied that where perceptions of events are not based on reality, the Applicant believes that her perceptions are correct. In this analysis the Tribunal relies upon the opinions of Drs Morse and Kneebone and Ms Blackburn; and
(d)the psychiatric evidence in this matter is at best contradictory and suffers in part from some opinions being formed on somewhat limited evidence and exposure to the Applicant. Nevertheless the Tribunal has tried to encapsulate much of what they have had to say in what has already been written. Further the Tribunal finds that much of the psychiatrists later efforts were directed towards an analysis of what effect the events of 21 May and 29 May 1996 had on the Applicant, as opposed to defining an assessment of the continuing work experience of the Applicant over the years of her employment. Finally the Tribunal is satisfied and so finds that the Applicant does have a psychiatric illness and that this is best defined as an adaptive disorder with features of major depression and anxiety. In so finding the Tribunal has placed less weight on the opinion of Dr Lewin in that the Tribunal found both his report and verbal opinions accepting some particulars as fact while asking for the Tribunal to determine fact, and at times it did appear that Dr Lewin was having difficulty in addressing particular issues. The Tribunal placed greater weight on the opinions of Dr Morse, Dr Kneebone, Dr Donsworth in part and Ms Blackburn.
In summary it is the Tribunal's finding that the Applicant does have a psychiatric disorder, namely an adaptive disorder with features of major depression and anxiety and that this is a direct result of the Applicant's vulnerable personality and limited work experience in marketing and strategic planning being exposed to a work environment in which tensions accumulated in an interpersonal working relationship between the Applicant and her superior. These tensions arose as a consequence of how and what work was expected, the interaction of the two personalities, one of which was more vulnerable, and a continuance which accumulated the tensions. The Tribunal is aware that two perceptions of the interpersonal work relationship between the Applicant and Mr Bert have been portrayed and is satisfied that the Applicant's perception is based on sufficient reality of the working environment to establish what in effect was a dysfunctional working relationship in so far as it affected the Applicant. The Tribunal is aware that the Applicant received a "B" grading in overall annual review, but this in no way reflects upon what was happening in the last months of her employment, which culminated in the events of 21 May and 29 May 1996. The Tribunal observes that the event of 21 May 1996 was related to the Applicant being advised that her position was to be declared excess and that she would have an option of redeployment or redundancy. The Tribunal further observes that the event of 29 May 1996, after which the Applicant never returned to work, was associated with the publication of her name to the union contrary to her express wish for privacy on the issue of redeployment. The Tribunal does expressly find that both events were incidences of the Applicant's employment and arose during and were inextricably linked with her employment and that any adverse consequences that have arisen as a result of these two events likewise arise from the Applicant's employment.
The Tribunal had its attention drawn to the definition of injury within section 4 of the Act and in particular to the exclusionary aspects namely:
"…but does not include any such 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."
In considering the issues raised by the Respondent the Tribunal having given consideration to what constitutes a failure to obtain a benefit as stated in Comcare v Mooi (1996] 137 ALR 690 and what is the proper interpretation of the word "obtain" which is not be extended to include the retaining of a benefit as in Comcare v Ross (1996) 680 FCA 1, finds that neither the events of 21 May nor 29 May 1996 can be described in such terms as nominated by the exclusion. The declaration that a position is excess leads to an individual being offered the option of redeployment or redundancy and in no way can this be considered a failure to obtain promotion, transfer or benefit at the point in time at which it was made known to the Applicant. The Tribunal does express some surprise as to why so much emphasis was placed on this issue for clearly such an activity arises out of or during the course of employment, and is not somehow an issue standing apart from employment.
Further in addressing the issue raised in Van Houten v Comcare (supra) the Tribunal is mindful that it has already found that the Applicant had perceptions of events which she believed, and further that there were sufficient perceptions based on reality for the Tribunal to conclude that events in the work place had made a material contribution to aggravation of a pre-existing vulnerable personality which led to the development of the psychiatric disorder.
The Tribunal having found that the Applicant does have a compensible condition further finds that on the evidence presented to the Tribunal the Applicant was permanently incapacitated for work from 3 May 1996 until she commenced work with TAFE in February 1997. Further the Tribunal finds that since February 1997, the Applicant remains partially incapacitated for work.
DETERMINATION
The Tribunal determines that the decision under review be set aside and in substitution thereof determines that:
(1)the Applicant has suffered an injury, namely an adaptive disorder with features of major depression and anxiety; and
(2)factors in the Applicant's employment caused or contirbuted to in a material degree the development of the Applicant's psychiatric disorder; and
(3)the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Act; and
(4)the matter is remitted to Comcare for calculation of entitlements in relation to medical expenses and for the nominated period of total incapacity for the period of continuing partial incapacity.
I certify that the preceding 127 paragraphs are a true copy of the reasons for the decision herein of DR JD CAMPBELL.
Signed: .....................................................................................
AssociateDate of Hearing 25,26 November 1999 and 5,6,7 April 2000
Date of Decision 8 September 2000
Counsel for the Applicant Ms R. HendersonCounsel for the Respondent Ms L. Gabriel
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