Marshall and Comcare (Compensation)
[2024] AATA 976
•28 March 2024
Marshall and Comcare (Compensation) [2024] AATA 976 (28 March 2024)
DecisionNumber: 2020/1819, 2023/3568
Division:General Division
File Number(s):2020/1819, 2023/3568
Re:Adam Marshall
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:28 March 2024
Place:Melbourne
The decisions under review are affirmed.
………………………………………
Senior Member Damien O’Donovan
Catchwords
WORKER’S COMPENSATION – claims for psychological injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – adjustment disorders precipitated by events in the workplace – perception of bullying and harassment – whether injury/aggravation as a result of reasonable administrative action – failure to obtain a benefit – inappropriate conduct on part of applicant – whether administrative action taken in a reasonable manner – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A
Public Service Act1999 (Cth), s 25
Work Health and Safety Act 2011 (Cth)Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Comcare v Stewart [2019] FCA 365
Comcare v Martin (2016) 258 CLR 467
Long v Comcare [2012] FCAFC 21Secondary Materials
Bureau of Meteorology, ‘Guidelines for privately initiated shift swaps’ (20 June 2006)
REASONS FOR DECISION
Senior Member O'Donovan
The applicant is an employee of the Bureau of Meteorology (BOM). He is seeking compensation in relation to two adjustment disorders, which he first noticed symptoms of on 7 October 2018 and 4 March 2019. Comcare has denied both claims.
There is no dispute that the applicant was suffering from an adjustment disorder in late 2018 and for some or all of 2019 and that his condition was contributed to, to a significant degree, by his employment with the BOM. The respondent does however contend that the applicant’s conditions fail to meet the statutory definition of a ‘injury’ because the adjustment disorders were suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.[1] If the respondent’s submission is accepted, the applicant is not entitled to compensation in relation to his conditions.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), s 5A.
The applicant has put his case on the basis that he suffered an adjustment disorder in October 2018 as a result of issues surrounding a refusal by his supervisor to approve a shift swap which the applicant sought approval for in September 2018. He contends that at some point that adjustment disorder resolved and then incidents relating to communications with his supervisor in and around March, April and May 2019 caused him to suffer a second and more durable adjustment disorder, which has rendered him unfit for work ever since.
It is difficult to determine whether this is the most medically accurate way of analysing the applicant’s mental state in the period from October 2018 to May 2019, but at the very least it can be accepted that there are two distinct conditions – the first being an adjustment disorder which was suffered around October 2018 and a second which developed in March and April 2019, which was either an aggravation of an extant but less symptomatic adjustment disorder or a new adjustment disorder following resolution of the first adjustment disorder. The legal analysis is the same regardless of which understanding of the condition is applied. For ease of reference, I will refer to the applicant’s two conditions as the 2018 adjustment disorder and the 2019 adjustment disorder without formally deciding whether the 2019 adjustment disorder is an entirely new condition or an aggravation of the 2018 condition.
Once the diseases have been identified, precise identification of the employment factors which significantly contributed to them is necessary in order to apply the causation test specified in the High Court’s decision in Comcare v Martin (‘Martin’).[2] The key passage in Martin provides:
… an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.[3]
[2] (2016) 258 CLR 467.
[3] Ibid 479-80.
In relation to the 2018 adjustment disorder, the applicant has identified his manager’s refusal to approve a shift swap with another employee as the precipitating cause of his adjustment disorder. In relation to his 2019 adjustment disorder, the applicant has identified the direction that he not communicate directly with his ultimate supervisor Layla Watson and the associated formal complaint about his conduct towards Ms Watson as the precipitating cause.
In relation to the 2018 adjustment disorder, there is agreement that but for the non-approval of the shift swap, the applicant would not have developed an adjustment disorder. The only question is whether the refusal constituted reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (which from this point I will refer to as RAA). In relation to the 2019 adjustment disorder, it is necessary to undertake a closer analysis to identify the precipitating events which meet the Martin test and then consider whether those events constitute RAA.
Consequently, these reasons are structured as follows.
First, I set out the sources of evidence on which my decision is based. Second, I consider whether the non-approval of the shift swap in 2018 constituted RAA. Third, I consider what events around March and April 2019 precipitated the applicant’s disease. When these have been identified I determine whether the identified events constituted RAA.
Evidence
The documentary evidence before the Tribunal was taken in as a single joint tender bundle consisting of three volumes of documents running to 2669 pages. The documents fell into the following categories:
(a)T-Documents, Exhibits R1-R3, pp 1-589
(b)Applicant’s material, Exhibits A1-A6, pp 590-1740
(c)Respondent’s material, Exhibits R4-R9, pp 1741-1998
(d)Material produced under summons, Exhibits R10-R11, pp 1999-2669
The material was taken in on the basis that it was incumbent upon the parties to draw my attention to documents of significance that they wanted me to have regard to. The parties were advised that they should not expect that I would read all 2669 pages in the tender bundle.
The Tribunal conducted a hearing over five days from 17 to 21 July 2023.
The following statements and reports set out evidence from witnesses called by the parties:
(a)Adam Marshall:
(i)23 November 2020, TB 590
(ii)4 May 2023, TB 600
(iii)10 May 2023, TB 922
(b)Zeeva Cohen:
(iv)report dated 23 October 2019, TB 1451
(v)report dated 24 January 2020, TB 1554
(vi)report dated 27 April 2021, TB 1623
(vii)report dated 12 March 2020, TB 1701
(c)Samantha Thompson: statement dated 3 March 2023, TB 1754
(d)Christine Ward: statement dated 8 March 2023, TB 1832
(e)Kieron McBrien: statement dated 16 June 2023, TB 1985
(f)Karina Vila, Report dated 20 December 2022, TB 1563
I also took into evidence the following summonsed material produced by the Bureau of Meteorology on 25 August 2023:
(a)Email from Layla Watson, ‘RE: EOI for BNAP- 6 months’, dated 7 August 2018
(b)Email from Layla Watson, ‘RE: Advertising approval - Technical Officer Brisbane Airport - Ref: 9046’, dated 28 May 2018
(c)Email correspondence between multiple managers regarding Nicholas Giannakis’ transfer, ‘RE: Brisbane Airport Job’, dated between 11-17 May 2018
(d)Email from Layla Watson advising staff of withdrawal of the TO2 recruitment process, ‘Ref: Technical Officer Brisbane Airport - Ref: 9046’ dated 5 June 2018
(e)Email correspondence between Layla Watson and Nicholas Giannakis, ‘Re: Transfer to YBBN’ dated 11-12 June 2018
(f)Email correspondence between Layla Watson and Lynda Cuffe, ‘RE: TO2 - BNE - Pos 9046’, dated 1 June 2018
(g)Email correspondence between multiple managers, ‘RE: Technical Officer Brisbane Airport advertisement’, dated between 1 and 23 May 2018.
(h)Email correspondence between Mark Dalmazzo and Layla Watson, ‘RE: Referee reports-Liam Carroll and Adam Marshall’, dated 11 May 2018
(i)Email correspondence between Joanne Bugelli and Layla Watson, ‘RE: Notifications to external TO2 applicants’, dated 6 and 8 June 2018
(j)Email correspondence between Nicholas Giannakis and Layla Watson, ‘Re: Niks transfer from Perth Airport to Brisbane Airport’, dated between 15 and 17 May 2018
(k)Email correspondence between Layla Watson and Tim Tangney, ‘RE: Nick Giannakis - Transfer WA to Qld’, dated 10-11 September 2018
(l)Email correspondence between Layla Watson and Michelle Mews, ‘RE: Movement notice-Nik Giannakis’, dated 10-11 July 2018
Layla Watson, a witness who provided a statement and was central to the events leading to the applicant developing an adjustment disorder, did not give oral evidence. The applicant indicated that she was required for cross-examination, but prior to the hearing she produced a medical certificate which stated:
Ms Layla Watson has a medical condition and is experiencing some mental distress over the court case which is impacting her mental health, and as a result, it is not appropriate for her to provide evidence.
It is worth noting that whether or not it is ‘appropriate’ for a person to provide evidence in Tribunal proceedings is not a question to be determined by a person’s treating doctor. Given that Ms Watson is central to the issues to be determined by the Tribunal, I would have expected the respondent to make greater efforts to secure her presence.
In circumstances where a witness is not made available for cross-examination, and indeed does not even adopt a statement under oath or affirmation, the usual price to be paid is that their evidence would not be admitted or, if admitted, be given no weight.
I was however urged by the respondent to accept Ms Watson’s evidence in the form of an unsworn statement. This course was said to be appropriate in light of the medical certificate, and the fact that Ms Watson no longer works at the BOM. I accepted the document into evidence on the basis that the applicant would have an opportunity to identify the parts of the statement with which he specifically disagreed, and have an opportunity to identify questions which he would have specifically raised with Ms Watson if given an opportunity to do so. I noted that the weight I gave her statement was a matter to be determined in light of the failure of Ms Watson to make herself available for cross-examination in the context of the material otherwise available.
As the statement is, in most respects, corroborated by documents available to both parties and is for the most part consistent with the evidence of the applicant, I was content to proceed in that way.
It is however quite unsatisfactory that in a case where the motivations for the taking of specific action by a person may be highly relevant to the question of whether those actions constitute RAA, that the critical protagonist is not made available to the Tribunal. To ameliorate any concerns which the applicant harboured concerning the motivations of Ms Watson, I made arrangements for a summons to be issued to the BOM which would shed light on what Ms Watson’s role was in relation to the termination of a selection process that the applicant was a participant in. The documents produced did not reveal anything which suggested Ms Watson behaved other than appropriately in the conduct of that process.
I am satisfied that there was nothing procedurally unfair in proceeding in the absence of Ms Watson. To the extent that her evidence is inconsistent with the statement of the applicant, I have preferred his evidence.
Factual findings
Shift Swap Issue
The applicant has been employed with the BOM since 2009. The relationship has been a difficult one. The applicant claims that in early 2011, in the context of a training course that was intended to be preparatory to a posting to Macquarie Island, he was the subject of bullying and harassment. His employment was terminated in July of 2011 while on sick leave.[4] He was however successful in having re-instatement ordered by the Federal Magistrates’ Court (as it then was), and he returned to work at the BOM in November 2012.[5] In 2014 the Tribunal determined that he was entitled to compensation in relation to an adjustment disorder. Despite a long absence from work as a result of this condition the applicant was able to return to work at the BOM. Last year he was unsuccessful in the Tribunal in relation to a claim arising from events in the workplace in August/December 2016 and March 2017, which events again precipitated an adjustment disorder.
[4] TB 711.
[5] Report of Dr Taylor, TB 715.
Despite all of these ups and downs, the applicant’s GP considered that, heading into the second half of 2018, his adjustment disorder was largely asymptomatic.[6] However, both doctors who gave evidence during the hearing were of the view that the previous episodes of poor mental health did make the applicant susceptible to further adjustment disorders. The trust in the relationship between the applicant and the BOM had also been damaged by the events of the previous 9 years. For example, the applicant reported to Dr Vila on 15 March 2018 that the BOM was creating difficulties with him receiving entitlements and ‘none of his other colleagues were subjected to the same scrutiny’.[7] That was certainly the applicant’s perception of his treatment.
[6] TB 1564; oral evidence of Dr Vila.
[7] TB 2143.
In September 2017 the applicant was engaged in providing leave relief at Brisbane Airport. The work was done as shift work consisting of 12-hour night or day shifts. The BOM had arrangements in place that permitted employees to swap shifts for personal reasons, but it required the approval of the Officer in Charge (OIC). The applicant wished to visit his sister in Newcastle in November that year. A shift swap with another employee would have made that possible. He approached his work colleague Nicholas Giannakis about undertaking a shift swap and an arrangement was agreed between them that was convenient to them both. Mr Giannakis emailed the Acting Officer in Charge (AOIC) Kieron McBrien on 22 September 2018 and requested the swap. Mr McBrien was not very familiar with the shift swap process as he was only acting in the OIC position and so reviewed BOM’s guidelines (‘the Guidelines’) for approving shift swaps.[8] He then replied to the applicant and Mr Giannakis declining the shift swap on the basis that it was not in accordance with the Guidelines – in particular, the shifts were not in consecutive pay periods. Mr McBrien attached a copy of the relevant Guidelines to his email. He included in his response the following:
I looked up the guidelines for shift swaps and checked it against the last official local guidelines I could find (attached) where it says that swapped shifts can be worked in consecutive pay periods. Unfortunately your shift swaps are in non-consecutive pay periods so I’m going to decline the shift swaps.
If you can’t find a shift swap that is at least in consecutive fortnights I’m happy for my decision to be over-ruled by Martin [the permanent OIC] or Layla [Ms Watson, who was one level above Martin]. Unfortunately Martin comes back on the night of 9 Oct which might be too late for you.[9]
[8] Bureau of Meteorology, ‘Guidelines for privately initiated shift swaps’ (20 June 2006) (‘the Guidelines’).
[9] TB 671.
On 26 September 2017 Mr Giannakis emailed Mr McBrien again with an alternative shift swap proposal, where both shifts were in November 2019 and were in consecutive pay periods. The dates of the shift swap were 6 to 7 weeks away. This proposal was consistent with Mr McBrien’s email but not, strictly speaking, in accordance with the Guidelines. The Guidelines in fact required any swaps to be undertaken within the same pay period. However, the covering email which originally distributed the Guidelines indicated that permission could be granted for shift swaps in consecutive pay periods.
On 27 September 2018 Mr McBrien decided to defer approving the shift swap. He emailed the applicant and Mr Giannakis and advised:
As the shift swaps are in November I’ll wait for Martin to give the final approval. Martin will be back on 9 October.
When, during his evidence to the Tribunal, Mr McBrien was asked about his reasons for deferring the shift swap decision and leaving it to be made by Mr Martin, Mr McBrien’s concern was a practical one. Mr McBrien said that because the applicant was working at Brisbane Airport covering other people’s leave, there was always a chance that he could be moved off the roster at short notice. This would leave a shift uncovered if half of the shift swap had already been implemented.
Both the initial decision to refuse the shift swap and the subsequent decision to defer the new decision until the applicant’s permanent supervisor returned obviously troubled the applicant greatly. On 4 October 2018 he wrote a long email (over two and a half pages in length) to Mr McBrien, which was essentially a critique of the decision he had made, and which implied that Mr McBrien had gone to some considerable trouble to deny the applicant the benefit of a routine request.
Here is a short sample from the email:
Our proposed shift swap had no detriment whatsoever to the Brisbane Airport BoM operations; it was essentially an uncomplicated decision you had to make.
Yet you have decided in your brief tenure as A/OIC to reject the first requested shift swap and apparently gone to all the trouble to research Shift Swaps and produce an obscure document written in 2006, to justify your rejection of the request from Nik and myself. Consequently by going to the lengths you did, you have made an issue out of nothing and seemingly elevated a normal practice to a level which is far more complicated than it need be.
When Martin Mynott returned to work on 9 October 2018, he approved the shift swap. The applicant attended his treating GP based in Victoria, Dr Vila, on the same day. She diagnosed the applicant as suffering from an adjustment disorder and anxiety related to workplace stress, bullying and harassment. Her notes specifically record that the applicant raised ‘not being allowed to take days off or do a shift swap to see his sister in Newcastle who is pregnant’.
Dr Vila, in a medical report dated 20 December 2022, described the development of the condition in the following terms:
Adam saw me on 9/10/2018 following a ‘shift swap’ dispute at work.
This is when I diagnosed him with an “Adjustment disorder and Anxiety related to Work-place stress, bullying and harassment.”
Adam explained the initial shift swap request, arranged between himself and a colleague in late September 2018, was rejected by his acting officer in charge (A/OIC). However the A/OIC indicated that if certain criterion were met it would be subsequently accepted. But when a request for a 2nd shift swap was submitted, this too was rejected despite meeting the A/OIC’s criterion.
That seemed to be the final spur from a series of events that caused Adam to suffer an adjustment disorder in October 2018 (as stated in my clinical notes “Adam’s had enough”).
I subsequently requested an opinion from clinical psychologist Dr Siobhan McEwan. In a letter to me of 4/12/2018, Dr McEwan mentioned the negative effects on Adam’s psychological health caused by the actions of some BOM employees and at the same time she “clinically and quantitatively assessed Adam as meeting the criteria for Adjustment Disorder”.
I understand that Adam had also been diagnosed as suffering from an adjustment disorder by his treating GP in Redcliffe Queensland, Dr Moray Wilson. Adam’s symptoms waxed and waned for a period of time, however Adam managed to recover enough to return to work, despite having some days off on account of illness.[10]
[10] TB 1564.
I am satisfied that, were it not for the initial refusal and subsequent deferral of the shift swap request, the applicant would not have suffered an adjustment disorder. The adjustment disorder is a disease suffered as a result of how the shift swap issue was handled.
If the handling of the shift swap issue constitutes RAA, then the applicant’s adjustment disorder will not be compensable.
Was the adjustment disorder the result of reasonable administrative action?
Subsection 5A(2) of the SRC Act provides that ‘reasonable administrative action’ (‘RAA’) is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
This subsection is a deeming provision. Consequently, if the actions taken in relation to the applicant fall within the terms of one of the paragraphs, then they will constitute reasonable administrative action.
Paragraph (f) is relevant in this case: in my assessment the refusal and deferral of the shift swap involved the applicant failing to obtain a benefit. It is clear from the Guidelines that ‘[s]upervisors are responsible for approving Shift Swaps’, and that ‘in arranging and agreeing to Shift Swaps, all concerned need to have regard to:
·Occupational Health and Safety principles;
·Agreed Rostering Principles, where they exist;
·The new hours not generating an overtime payment, or conversely, a short-worked situation; and
·Once agreed, the swapped shift becomes the recognised rostered hours for each employee and the employees assume responsibility for working that shift.[11]
[11] TB 1995 (‘KM1’).
There is no suggestion in the document that a person is entitled to make a shift swap any time they like. For a shift swap to take place it must be approved at the discretion of a supervisor. The shift swap was clearly a benefit to the applicant in the sense that it brought about an altered work arrangement that was more desirable from the applicant’s point of view. It therefore constitutes administrative action.[12]
[12] SRC Act, s 5A(2)(f).
The question then is: was the action taken in relation to the shift swap refusal and deferral reasonable? If it was, then it was reasonable administrative action. I then need to be satisfied that it was taken in a reasonable manner.
Whether or not conduct is reasonable is a question of objective fact related to the specific conduct involved. It is to be assessed without the benefit of hindsight and does not involve asking whether the action could have been done more reasonably.[13]
[13] Comcare v Stewart [2019] FCA 365, at [62].
I am satisfied that both the decision to refuse the applicant the original shift swap and the subsequent deferral of a decision on the revised shift swap were reasonable and were taken in a reasonable manner.
Mr McBrien’s original refusal of the request was in line with the standards in place at the time. While the applicant is and was suspicious of Mr McBrien’s reasons for finding and applying the Guidelines, I am satisfied that as a diligent employee he simply identified the appropriate guidance available for the making of a decision and applied the rule as he understood it. That conduct was reasonable.
I am also satisfied that Mr McBrien’s conduct in relation to the deferral of the approval of the shift swap was reasonable. Mr McBrien was only acting in the OIC position and the shift swap proposed involved changes in the roster in a time period where the permanent occupant of the position would have returned to work. It was open to Mr McBrien to approve the shift swap, but there is nothing unreasonable in taking the view that the person who will be in charge when the shift swap takes effect is the more appropriate person to make the decision.
The manner in which the actions were taken was also reasonable. Mr McBrien dealt with the requests promptly, explained his position in the relevant emails and provided the relevant Guidelines when appropriate. I have seen no evidence to suggest that Mr McBrien was doing the bidding of someone else or was targeting the applicant when he declined and deferred the shift swap.
The applicant makes much of the fact that other people who have performed the OIC role would have approved the shift swaps proposed. Even accepting that that is true as a matter of fact (and it does seem likely having regard to the content of Mr Mynott’s email at Annexure KM1) that does not render Mr McBrien’s conduct in applying Guidelines that were relevant to the exercise of his approval power unreasonable.
The applicant also complains that the Guidelines Mr McBrien applied were not in the relevant Enterprise Agreement. It is however clear from the Enterprise Agreement that a supervisor’s approval is necessary before a shift swap takes place. It is not surprising that there are principles to guide the exercise of that approval power outside of the Enterprise Agreement. The applicant also complains that he had never been made aware of the Guidelines previously. That perhaps reflects poorly on his usual supervisor Mr Mynott, but Mr Mynott squarely acknowledged that he was deficient in this regard in his email of 16 October 2018.[14]
[14] TB 1987.
The applicant also argues that the Guidelines do not say that shift swaps must take place in consecutive pay periods. I cannot agree with that submission. The covering letter to the Guideline explains that, in order to avoid a ‘short-worked situation’ where an employee is being paid for more hours than they have worked, ‘the swapped shifts should be worked in the same fortnightly pay period’. It then goes on to say: ‘but if this proves impossible for one reason or another, the swapped shifts can be worked in consecutive pay periods.’ In other words, if the Guidelines were applied strictly to avoid a ‘short-worked situation’ only shift swaps within the same pay period could be approved. However some flexibility is allowed so that swaps can take place in consecutive pay periods. The only way this can be understood is that there are only two circumstances in which a shift swap can be approved: when the swap involves shifts in the same pay period, or in consecutive pay periods.
The applicant also submits that the letter can be understood as authorising swaps within the same four-week period even if the pay periods in which they fall are not consecutive. That submission is based on a misunderstanding of a passage in the covering letter to the Guidelines. It states:
In most circumstances both the swapped shifts should be worked in the same fortnightly pay period – but if this proves impossible for one reason or another, the swapped shifts can be worked in consecutive pay periods. (This flexibility has been negotiated with head office following receipt of the Advice and is now at some variance with dot point 3 above wrt a particular pay period – but remains consistent when a 4 week period is considered).[15]
[15] TB 1993.
What is said there is trying to rationalise a practice which is a departure from a clear prohibition in the Guidelines on the generating of a ‘short-worked situation’. It is in effect saying that if you take the two pay periods covered by the swap as your period of assessment then you avoid a short-worked situation over that four-week period. If the applicant’s interpretation were favoured, the swapped shifts can be within four weeks of each other yet separated by a pay period. If that occurs, you inevitably get a short-worked situation in one pay period that is not resolved until the end of a third pay period. You have to consider a six-week period before you could say that there is no ‘short-worked situation’ in such a circumstance. Consequently, I do not accept the submission that the Guidelines permit approval of any shift swap if the shifts are four weeks or less apart in circumstances where that four-week period spans three pay periods.
I am satisfied that the applicant’s first swap proposal was outside of the Guidelines, even when it was applied in the more lenient fashion allowed for in the covering email. The applicant’s arguments that the proposal did not fall foul of the Guidelines is unpersuasive. I am satisfied that Mr McBrien did not make a mistake in how he understood and applied the Guidelines.
The applicant also contends that the deferral of the decision on his second shift swap was not just wrong on its own terms, but that it also rendered earlier statements made by Mr McBrien false, with the refusal being contrary to an implicit undertaking previously given. This argument is stitched together in the following way.
In his email refusing the first shift swap, Mr McBrien wrote: ‘If you can’t find a shift swap that is at least in consecutive fortnights I’m happy for my decision to be over-ruled by Martin or Layla.’
The applicant contends that these words ‘expressly imply’ that an arranged shift swap in consecutive fortnights would be approved because ‘inherent in his comments is that the only obstacle to his approval is the shift swaps not being in consecutive fortnights’.
This argument is without merit and involves a significant over-reading of Mr McBrien’s comments. Mr McBrien is simply inviting the applicant and Mr Giannakis to go over his head if they cannot find an alternative arrangement which meets a criterion which he regards as essential for approval. It is not an undertaking that he will approve every proposal that meets that criterion.
Mr McBrien’s email cannot be understood as indicating that he will make any particular decision if a shift swap involving consecutive pay periods is submitted. There is no implicit undertaking by Mr McBrien to do so. When Mr McBrien subsequently deferred the second shift swap there was no departure from any undertaking to decide an application to swap shifts in consecutive pay periods in any particular way.
The applicant also contends that Mr McBrien ‘did know that his fresh action to defer a decision on the second shift swap request for the OIC Martin Mynott to decide upon his return from leave on 9/10/18 could also negatively impact Adam Marshall’s purpose for seeking a shift swap in the first place’. This claim is based on a line in Mr McBrien’s email of 22 September 2018, which I note was:
(a)written in the context of a shift swap proposed to take place on 11 October 2018; and
(b)suggested that Mr Mynott might be willing to overrule Mr McBrien’s decision.
The email stated as follows:
‘Unfortunately Martin comes back on the night of 9 Oct which might be too late for you’.
Mr McBrien’s decision to defer approval of the shift swap, however, related to a proposal where the first shift swapped was on 6 November 2018. It is not possible to draw an inference that Mr McBrien knew that his deferral of the decision would negatively impact on the applicant from earlier statements made in a different context. There is no evidence that Mr McBrien thought that his decision would negatively impact on the applicant. I have not been advised of any plausible basis for concluding that he did.
The submission is emblematic of the applicant’s approach to his workplace. On the flimsiest basis imaginable he is prepared to infer that his supervisors are singling him out for special adverse attention and doing so with animus. There is nothing in any of the evidence available to the Tribunal which supports any suggestion that Mr McBrien treated the applicant’s requests for shift swaps otherwise than on their merits and in accordance with guidelines which he understood ought to be applied.
The applicant then goes on to fashion an argument that Mr McBrien lied by somehow engendering in the applicant a belief that shift swaps in consecutive periods would be approved by Mr McBrien. As I have already said at paragraph 54 above, Mr McBrien never indicated that approval would be forthcoming for any proposal which met his minimum requirements that the swap relate to shifts in consecutive pay periods. The applicant was engaging in wishful thinking in reading the correspondence in that way. He has no basis at all for suggesting that Mr McBrien lied, and I reject that submission. Mr McBrien did not lie, and I have not been provided with any material to support a finding (as is further alleged) that he breached the Australian Public Service (APS) Code of Conduct and Values in any of his conduct or his communications.
I am satisfied that Mr McBrien did not misinterpret the Guidelines, nor did he apply them narrowly. He correctly understood that the Guidelines prohibited shift swaps except in a single pay period. The requirement to avoid a ‘short-worked situation’ produces that result. He did however recognise that the covering email to the guidelines gave him the ability to approve shift swaps in consecutive pay periods. In his SOFIC the applicant submits that there is ‘resultant inanity’ from this interpretation. He argues that shifts as little as 16 days apart can fall foul of the policy. So much is true. The point that he misses is that the BOM is trying to avoid a person being paid for work they have not yet done. There is a willingness to tolerate that circumstance for one pay period but not two. There is nothing inane in Mr McBrien’s approach. On the contrary, it is what is required by the policies which he applied.
The applicant also submits that in deferring the decision on the second shift swap proposal, Mr McBrien was somehow involved in a dereliction of his duty. That submission is as follows:
A BoM employee appointed to act in a higher position should have the requisite knowledge of operations to act in that higher position and the competence to make basic operational decisions correctly. A simple request to swap a like for like shift is not so weighty a task that Mr McBrien should have had to postpone making a decision on especially when he says he checked the BoM guidelines about it.
This condescending submission is also misconceived. Mr McBrien proved himself quite willing to make decisions when it was appropriate. He rejected the first shift swap proposal when it was inconsistent with the guideline. He deferred approving the second shift swap proposal, not because he was bamboozled by the complexity of it, or somehow lacked the experience or fortitude necessary to undertake the weighty task of approving the shift swap the applicant proposed. On the contrary, it was his concerns about the potential harm to the work of the BOM that might emerge if he approved a shift swap too far in advance when the rostering situation might be subject to change that caused him to decide that a delay in making the decision was the more appropriate course.
Accordingly, I am satisfied that Mr McBrien carried out reasonable administrative action in a reasonable manner.
The applicant makes a further submission that the applicant’s predisposition to suffer psychological ill health should have prompted more care by others in their dealings with him. The argument seems to be suggestive of some kind of reasonable adjustment being necessary to accommodate his predisposition to suffer adjustment disorders.
There is no doubt that the applicant is prone to suffering adjustment disorders. His propensity to react to any perceived injustices in the workplace was noted in a medical report in 2017.[16]
[16] Report of Dr Taylor, TB 718.
However, that report is a report to Comcare and there is no evidence that Mr McBrien was aware of the applicant’s special vulnerability. Even if he was aware of the applicant’s sensitivity, I cannot see that he should have dealt with the applicant any differently. He was fair and reasonable in his application of the guidelines. He made fair and defensible decisions on both occasions, and he was courteous in his engagement with the applicant.
I am satisfied that the applicant’s adjustment disorder which was triggered by these events in the workplace was the result of RAA. Consequently, the adjustment disorder he suffered in October 2018 does not meet the statutory definition of an injury and no compensation is payable in relation to it.
Lodging of a formal complaint and related incidents
The applicant also claims that he suffered an adjustment disorder as a result of a fellow employee lodging a formal complaint about him and as a result of the conduct of other employees following the making of that complaint. Again, the critical issue is not whether the applicant developed an adjustment disorder following these events, but whether the triggering events constituted reasonable administrative action.
In order to determine the reasonableness of the formal complaint being made about the applicant (and the reasonableness of the actions which followed) it is necessary to first outline the lengthy build-up of tension between the applicant and Ms Layla Watson, who made the complaint. There were a number of incidents that, over time, eroded the relationship between the applicant and Ms Watson.
The key incidents were:
(a)A decision not to finalise a selection process for a Technical Officer (TO) position at Brisbane Airport, which the applicant applied for;
(b)A decision not to approve a flex day that the applicant wished to take; and
(c)Two specific requests that the applicant not communicate directly with Ms Watson and related complaints about the applicant and how those issues were handled.
Not all of these incidents prompted the development of the applicant’s adjustment disorder, but in order to assess the reasonableness of the actions that did prompt the adjustment disorder, it is necessary to place them in a broader context. Consequently, I have set out below my detailed findings in relation to these three incidents. I then consider what were the incidents that resulted in the applicant developing an adjustment disorder and whether those incidents can be characterised as RAA.
Termination of TO recruitment process
The applicant worked at two locations when he was working for the BOM in Brisbane. The first was known as the Brisbane HUB which was a place where he came into direct contact with Ms Watson. The other location was Brisbane Airport where his interactions with Ms Watson were not in-person interactions. On 1 May 2018 Ms Watson (Manager, Observing Operations Hub – Brisbane), announced to staff that a Technical Officer 2 (TO2) position had been advertised with a closing date of 10 May 2018 for applications.[17] Ms Watson was senior to the applicant, although the applicant’s immediate supervisor was at that time the OIC Martin Mynott.
[17] TB 1315.
On 10 May 2018 the applicant applied for the TO2 position at the Brisbane HUB. However, on 15 May 2018 the BOM decided to terminate the recruitment process and arrange a transfer at level for an employee from its Perth Airport office to fill the position. It would appear that no announcement of the termination of the process was made, and on 5 June 2018 the applicant made inquiries about when interviews would take place for the position.[18] On the same day, Ms Watson responded to his query by sending out a general email advising that ‘a decision was made at the senior HR level to transfer a “like to like” employee at level’[19] and that the recruitment exercise was withdrawn. I have reviewed summonsed material from the BOM on this issue and I am satisfied that those statements accurately reflect Ms Watson’s involvement in the process.
[18] TB 1318.
[19] TB 1319.
The applicant felt cheated by this change in process. After a significant delay, he commenced lengthy correspondence with Ms Watson about the issue. On 28 July 2018 the applicant sent a two-page email to Ms Watson commenting on the email she had sent some 7 weeks prior. He explained that he felt ‘aggrieved’, that the decision seemed ‘arbitrary’ and that the process left open the suggestion of ‘favouritism possibly even cronyism’. He described the process as, in his view ‘shameful’. He complained about being ‘left in the dark’. He indicated that he did not accept what had happened even though BOM management might expect him to accept it on a ‘yes sir, yes sir, three bags full sir’ basis. He raised his concerns as an official grievance under the Enterprise Agreement and indicated that he hoped the issue could be sorted out ‘justly and fairly’ upon his return from recreation leave.
On 8 August 2018 Ms Watson responded, advising that his concerns had been forwarded to the recruitment team. Ms Watson noted that ‘the EAP is always available for you to utilise if you wish’.[20]
[20] TB 1322.
The applicant raised the issue with his GP Dr Vila on 9 August 2018.[21] On 15 August 2018 the applicant saw Dr Vila again, who noted that the thought of going back to work after two weeks of holiday was causing ‘low moods and anxiety’. She noted that ongoing ‘counselling sessions are needed to provide coping strategies and address emotional distress’.[22]
[21] TB 2141.
[22] TB 2139.
On 4 September 2018 the applicant wrote to Ms Watson again, asking who the HR advisor who made the decision was. Ms Watson responded on 5 September 2018 indicating that she had requested follow-up. On 20 September 2018 Amy Hall, Manager People Services, responded to the applicant indicating that ‘Layla had promptly forwarded’ his email of 28 July 2018 and (among other things) advising that ‘the decision taken by the [unidentified] delegate’ was sound.[23] The applicant was advised if he was dissatisfied with the response he could ‘request a review of action’ under the Public Service Act 1999 (Cth) (‘Public Service Act’).
[23] TB 1325.
On 24 September 2018 the applicant wrote to Ms Hall expressing disappointment at the length of time it had taken to deal with his grievance and signalling his intention to seek a Review of Action. On the same day Ms Hall responded with details of how to pursue a review.[24] On 16 October 2018 another employee complained to Ms Watson about the handling of the TO recruitment.
[24] TB 1328.
On 25 November 2018 the applicant submitted a lengthy ‘Request for Review of A Decision’ to Thera Storie, General Manager Organisational Development.
On 26 November 2018 the applicant sent a further long email to Ms Watson taking exception to some perceived slights in an email she sent on 3 October 2018.[25]
[25] TB 1337.
Ultimately the applicant was told that the filling of the TO position by a transfer was a decision under section 25 of the Public Service Act to direct the place or places where duties are to be performed, and that decisions of this kind do not constitute reviewable action and are not susceptible to review.[26]
[26] TB 1345.
The significance of this sequence of events is that the email exchanges between the applicant and Ms Watson were later claimed by Ms Watson to constitute bullying and harassment. It was the making of that complaint and the associated direction to the applicant not to communicate with Ms Watson that played a role in the applicant developing an adjustment disorder in 2019.
A second issue also arose which further eroded the relationship between the applicant and Ms Watson.
Flex Issue
In June 2018 the applicant arranged with the OIC at Brisbane Airport to take a day of flex on 2 July 2018. According to the applicant this was not an unusual thing for a person in his position to do. However, Ms Watson intervened in that arrangement and advised the applicant that he could not take the day off. In her statement she says this was because ‘[a]nother staff member intended to take leave on 2 July 2018. On that basis Adam was approached as the next available person on the roster, to work additional hours to cover this person’s shift.’[27]
[27] TB 1777.
In her email to the applicant Ms Watson also explained to him that ‘day workers’ accrued flex time when working at the HUB and it could be taken when working at the HUB but not at Brisbane Airport where the employees are shift workers because shift workers did not accrue flex time.
As the applicant sometimes worked as a shift worker and sometimes worked as a day worker, according to Ms Watson, only on days where the applicant was working as a ‘day worker’ could he take accumulated flex leave.
The applicant disputes that this was how the policies worked in practice, but did not dispute that this is what was said to him by Ms Watson. On 29 June 2018 the applicant wrote Ms Watson a two-and-a-half-page email complaining about the denial of his flex day and querying the bona-fides of Ms Watson and the those of the worker whose approved leave on 2 July 2018 had prompted the cancellation of his flex leave.
In it he:
(a)Said he was disappointed about not being able to utilise his flex credit.
(b)Noted that another worker had rung in advising that she would not be attending work on 2 July 2018 and would be taking personal and carers leave (PCL).
(c)Confirmed Ms Watson told him that as a shift worker he was not entitled to use his flex credits to cover a rostered airport shift but indicated that he thought it was unfair and he believed others had done so on a similar basis previously.
(d)Referred to an earlier dispute about his status as a day worker or a shift worker for recreation leave purposes.[28]
(e)Claimed that there were ‘contradictions’ in the approach being taken.
(f)Described as ‘not usual in my experience’ for a person to know in advance of their need to take personal and carers leave, particularly as she was ‘currently on Recreation Leave’ but he nonetheless noted the employee’s entitlement to take the leave she is entitled to under the enterprise bargaining agreement.
(g)Indicated that it did ‘not sit comfortably with me’ the fact that he could not take his flex day even though it was arranged before the other employee notified of her need to take personal and carers leave. He also identified alternatives that could have been taken to get someone to cover the employee’s shift.
(h)Took issue with Ms Watson for saying ‘Thanks for being a team player’, in a phone call to him, a remark he found ‘odd, given I hadn’t said I agreed with the position you were advocating’ and went on to say ‘I actually thought you were implying that I would not be viewed as a team player if I were to want to take next Monday’s short shift off using my accrued Flex time credits. If that was the case I would take umbrage to such a suggestion that would portray me like that’.
(i)Went on to defend himself and his record of support for the BOM including by saying that the term ‘team player’ is very often misused in context of employment situations and is a misnomer inasmuch that it is often used to commend behaviour which is essentially sycophantic in nature.
(j)Indicated he would attend the shift as instructed but queried whether he would be paid overtime.
(k)Finished by saying: ‘Over the past few weeks I have had to spend considerable time and effort in responding to some of your queries relating to my RL credit hours under the EBS, as I alluded to earlier. As well you have queried me over a Monday when I was recently assigned to the Hub assuming I had used that day as a Flex day. I have responded to that query too, but you have not replied to my explanation in my 7.18pm email of 23/6/18 to you, so I assume you accept my explanation? I do point out which you probably now recall, that the answers to both your queries were always at your disposal in the form of email communications we had about those matters previously. These issues also followed your 5/6/18 email to me, stating the permanent position advertised for Brisbane Airport which I had applied for, was being otherwise filled. I will make comment on that in the near future. All I want is to be treated equally and fairly, like any employee would like.
[28] TB 699.
On 5 July 2018 Ms Watson responded. Her response was over a page long. She indicated she was surprised at the applicant’s perspective and explained her position. In relation to the response to the ‘team player’ comment she noted that he had said he would ‘have to accept the umpire’s call’ to which she had replied ‘thanks for being a team player’. She assured the applicant that she was not treating him any differently to any other member of the team and went on to say ‘Any discriminatory accusations are taken seriously; I will not tolerate a work place where this exists’. She followed up that remark with a suggestion that if the applicant was ‘really struggling with workplace decisions’ she could recommend the employment assistance service (EAP). She also recommended a Resilience course. The email response in my assessment was genuine and comprehensive.
A further issue concerning the applicant taking a flex day arose in September 2018. Ms Watson refused the day he requested but said she would approve a flex day taken four days earlier. The applicant responded with an email that was a page and a half long. In this email the applicant:
(a)Rehashed the June 2018 exchange concerning when flex leave would be available;
(b)Expressed surprise that his request for flex was not granted as requested given he was working at the HUB;
(c)Queried what the ‘operational requirements’ were which caused the rejection of his flex time requests;
(d)Contested Ms Watson’s entitlement to restrict his right to accrue flex time and asked if she had made similar directives to other BOM employees.
Ms Watson responded with a half page email on 3 October 2018. She asked that he be mindful of his lack of familiarity with workflow ‘before making personal observations about the application of operational requirements’. She rejected any claims she was undermining him and noted ‘it is becoming evident in your emails that you are dissatisfied with the conditions of employment and I again recommend the EAP service.’
On 26 November 2018 the applicant sent another two-page email to Ms Watson in which he took ‘the opportunity to reply to some comments you have made in some previous emails to me, which I seek some clarification from you about, to assist better my own understanding of where you are coming from’. He noted her earlier comment ‘to be mindful before making personal observations’ as an explanation as to why he was responding belatedly. The applicant then went on to respond to comments from earlier emails making the following points:
(a)He felt it was his right to convey to Ms Watson his thoughts on matters and issues that may involve and affect or have interest to him, noting that he would ‘feel aggrieved if you are wanting me to desist from offering an observation on anything just for the mere fact that you don’t wish to hear what I have to say’. He noted: ‘Obviously if I communicated to you disrespectfully then you would have cause to raise that as an issue? I’d welcome your feedback on what you were actually meaning by your comment please’.
(b)He observed that her last email implied that his communications had not been respectful and noted that he was ‘willing to peruse and reflect on whatever I may have communicated to you without due respect’.
(c)He took issue with an implication that he did not support the ‘business functions’ of the BOM.
(d)He responded to her comment that he appeared dissatisfied with his conditions of employment, noting ‘[t]hat comment does perplex me a good deal and if you believe this, then once again just point me to specifically what has led you to form that view please’.
(e)He denied feeling dissatisfied with his conditions at the BOM but went on ‘However what would engender a feeling of dissatisfaction within me in relation to my employment with the BoM would be if I was being treated differently to other employees, and specifically if the conditions of my employment that I am entitled to under any legislation, were being applied differently to any other employee that either yourself or another BoM supervisor/manager had direction over’.
(f)He noted he did not feel any need to contact the EAP service.
(g)He deduced from the suggestion to undertake a resilience course that ‘my character is lacking resilience. Let me assure you I have been through enough difficult experiences at various times in my life, which included unfortunately, having to deal with some unpalatable circumstances and situations whilst working with the BoM.’
(h)He closed the email by saying: ‘Anyway I just wanted to mention some of the points above arising from your comments in those two emails, and I trust you do not take offence of what I have said. I would be grateful for your feedback on some of the questions I have posed to you I relation with some of your comments. Thanks in anticipation of hearing back from you as soon as you are able to.
The applicant re-sent the email the following day ‘in case [Ms Watson] didn’t get it’. He asked Ms Watson to confirm that she had received it. She responded on 27 November 2018 with a short email saying: ‘I have read your email and noted your concerns’.
At this point I observe that the emails being sent by the applicant convey a strong sense of entitlement. He appears to regard his supervisor’s time as a public resource which he can waste at will by providing unstructured musings about what meanings earlier emails might or might not contain and to hint vaguely at differential treatment by his supervisor without making any specific allegation or making good any claim.
After receipt of this long and unpleasant email (which formed part of a pattern of conduct on the part of the applicant) Ms Watson referred the email to her supervisor Samantha Thomson stating:
See below email, this is repeated behaviour and I need help. I have made a EAP appointment with Managers Assist tomorrow at 4pm in the city to gain a professional perspective. Ill [sic] send through a calendar invite to discuss this.
By this point it is clear that Ms Watson was being subjected to inappropriate, wasteful and condescending communications about issues which had long been resolved. The applicant’s behaviour was not appropriate.
The applicant was on sick leave from 30 November 2018 to 10 December 2018.[29]
[29] TB 1357.
Leave issues correspondence
On Monday 29 October 2018 Ms Watson, in her capacity as the Manager, Observing Operations Hub in Brisbane called on Hub staff to make leave bids for the January to June 2019 period and asked that these be submitted by 1 December 2018. On 29 November 2018 Martin Mynott, the permanent OIC at Brisbane Airport, followed up with the applicant and another employee. The applicant was on sick leave at the time the email was sent but he responded to it on 12 December 2018. He sought leave from 5 April 2019 to 23 May 2019 inclusive and asked to be informed ‘asap if this is approved as I would like to make some plans for activities during my break’. Mr Mynott advised he would send the request to Ms Watson and indicated that ‘there are a few of us looking for leave around April so it may wind up that we have to amend dates or compromise in some way’.
On 7 January 2019 Mr Mynott emailed the applicant advising that Ms Watson had advised him that only ‘the period 5th-26th April can be supported. So if that suits please submit a leave request ASAP’. The approved period was almost a month less than what the applicant had sought. The email also noted that ‘in March [Ms Watson] will be offering a TAD for 6 months at [Brisbane Airport] so keep your eye out for that as you will be an available candidate’.
On 9 January 2019 the applicant sent Ms Watson a one-page email. This email explained that his leave application was partly prompted by concerns raised by Ms Watson about staff holding excess leave credits. The applicant explained that longer periods of leave opened up a greater array of holiday options. He asked that he be afforded the opportunity of a longer stint of leave ‘in the future when I apply’. He then outlined his knowledge of the leave that co-workers were taking and sought confirmation that the longer leave period was denied because others on the roster were taking leave during the same period. He sought information about what further periods of recreation leave is available after 26 April 2019 to allow him to plan leave.
The email conveyed a high degree of suspicion on the applicant’s part that he was not being dealt with fairly. It is unclear why he felt this.
Ms Watson responded on 10 January 2019. She explained that ‘the hub move is expected at the end of April. There is a possibility for you to take some leave in Feb where I can arrange leave relief from 8th – 15th’. She inquired whether the applicant would be happy to take leave then. She suggested that if he had leave plans for the second half of 2019 he should submit them at any time and she said he should keep an eye out for ‘a 6 month [expression of interest] for [Brisbane Airport] in March’.
The email was courteous and encouraging. The applicant responded in a courteous way on 11 January 2019, and Ms Watson responded appropriately the same day.
On 27 January 2019 the applicant raised the recreation leave issue again with Ms Watson. He explained again why a longer period of recreation leave had advantages over a shorter period (although did not suggest that he had any particular plans which required a longer period of leave) and provided a medical certificate from his GP, Dr Wilson. Dr Wilson states:
Adam John Marshall has been working a fairly tough, fatiguing roster for the past 18months and I feel that it will be in the best interests of his physical and mental wellbeing to tap in to as much of his accrued leave as possible at the end of this assignment in April. Certainly 5-6 weeks of leave would be a good start in helping him to recuperate/protect/prevent him from any adverse effects of working such a demanding roster.
The applicant then explained in some detail why he had been unable to take recreation leave prior to April 2019. He went on to explain Dr Wilson’s (unrecorded) reservations about the roster at Brisbane Airport. He described his reasons for seeking a longer break as ‘numerous and compelling’. He concluded with the following:
I trust Dr Wilson’s comments will not be ignored and will be afforded the gravitas and due consideration by yourself and/or other when assessing my request(s) for the taking of future Recreation Leave.
On 5 February 2019 the applicant’s request for longer leave was approved by Ms Watson. She stated:
Thanks for your email. I was on leave for a few days last week so apologies for the delay. On review and given the fact that your TAD ceases (which means you will be back in the hub), I am able to approve your original request for rec leave. Please enter into EBS for approval.
Separate to the above leave request, I do note the letter from Dr Wilson and I have referred this to the CARES [Compensation and Rehabilitation Employee Service] team. I have cc’d Martine (from CARES) to this email and she will be in contact to discuss.
Given the content of Dr Wilson’s letter and the BOM’s responsibility for the work health safety of its employees, the revised approval of leave and the referral to CARES are, on their face at least, appropriate actions.
Almost three weeks later, on 25 February 2019 the applicant sent a two-page email responding to Ms Watson’s email. The email strongly implies that Ms Watson did not refuse the applicant’s leave for any genuine operational reason but because she had some personal prejudice against the applicant and wished to exercise her powers so that the applicant was inconvenienced and thwarted. This is never said openly but the subtext of the email is clear – there was no genuine reason for refusing the full period of leave in the first place and a proper investigation of the matter would reveal something inappropriate behind the initial refusal. It is worth setting out the email at length (although even this extensive passage is not the whole of the email):
…in your 5/2/19 email response to my 29/1/19 email to you, you said: ‘on review and given the fact that your TAD ceases (which means you will be back in the hub), I am able to approve your original request for rec leave. Please enter into EBS for approval.’ That information is somewhat problematic depending on staffing availability in any case: but the information in itself you surely would have been cognisant of when you rejected the dates for my RL back in early January 2019?
Consequently I am bemused and I just do not understand arising from your comments quoted above from your 10/1/19 and 5/2/19 emails to me, why you were not prepared to grant me RL from 5th April to 23rd May as I had initially asked for; instead you chose just to grant me RL from 5th April to 26th April? It seems clear to me that ‘operational reasons’ cited by yourself as a reason to reject my initial period of RL I’d applied for, was not such an insurmountable barrier that you could not have overcome it, in being able to approve my initial RL request.
I had made some holiday arrangements ie travel and accommodation, for the period 5th April to 26th April on the basis of that RL period which you had said was all I could take. I’ve since rearranged my travel itinerary as a consequence of your new preparedness expressed in your 5/2/19 email, to now approve my original RL dates of 5th April to 23rd May. Whilst I welcome your change in sentiment, for your future reference I just wish to make you aware of how these kinds of approaches to such staff requests can negatively impact employees. In my case it has caused inconvenience and a degree of angst which was avoidable – it begs an answer to the question ‘Why my initial RL request was not granted in the first place, if it can be granted now?’
The applicant then went on to criticise Ms Watson for failing to take up suggestions the applicant had made to Mr Mynott the previous year about the Brisbane roster and contrasting it with her decision to refer Dr Wilson’s views to the CARES team.
He concluded with the following:
In respect to myself your recent referral of me to the CARES team at that point in time in relation to my health presumably, seems to be reacting to the personal circumstances I have found myself in, but not what might have been a causal factor(s). The circumstances are essentially work created, so I would suggest that had those circumstances not been evident within the workplace, then there would have been no adverse effects to myself. Please consider.
It is difficult to read this email as being anything but highly critical of Ms Watson. First, it queries her bona fides in originally rejecting the full period of the applicant’s leave application. Second, it queries her decision to refer health and safety information to the CARES team. Third, it criticises her engagement with the risks of the roster used in the Brisbane Airport and effectively accuses her of using the CARES team to pick up the pieces of an unsafe system of work. Given the heavy statutory responsibilities imposed by the Work Health and Safety Act 2011 (Cth), these are very serious matters to have raised in this way.
Ten minutes later the applicant sent a further email to Ms Watson. This time the applicant’s complaint related to the functioning of the BOM’s leave system. It was expressed in the following terms:
I have…tried to submit a new application for 5th-23rd May 2019 into the EBS. However, the following message was displayed: “Not enough leave balance available for period of leave”!?
This is ridiculous as I have enough hours accumulated to cover this Leave period (please see the screenshots in the attachments of this email). Could you please rectify this by manually entering my Leave request for that extended period into the EBS system and notify me when this has been done.
Thank you.
An email expressed in these terms might be appropriate from a manager to a person with responsibility for the functioning of the EBS system. Even in those circumstances it might be regarded as a little terse and directive. For a more junior employee to send such an email to their ultimate manager who has no responsibility for the proper functioning of the EBS, demanding action and a report on the outcome, shows a grave want of judgment.
During the course of the hearing before the Tribunal the applicant seemed to appreciate how inappropriate this email was and sought to explain it on the basis that he was tired and emotionally affected by the lack of sleep at the end of a 12-hour night shift. That insight was a long time coming. There is no evidence that prior to the hearing the applicant regarded anything he did as outside of the boundaries of appropriate workplace conduct. This lack of insight lies at the heart of the events that unfolded.
On 26 February 2019 Ms Watson took steps within EBS to cancel the earlier leave approval, which appears to be what was required to allow the longer period of leave to be submitted into the system.
On 1 March 2019 she responded to the applicant’s emails of 25 February 2019.
She stated:
I will no longer be engaging in lengthy emails that go back and forwards with you. My job is to make decisions with the information that I have in hand and it appears like you have continual issues with this. I do not have time to engage in this manner. This communication makes me feel disrespected and harassed. This behaviour needs to stop. Any workplace queries can be discussed over the phone so you are welcome to give me a call when you are at work to discuss.
This email was appropriate in the circumstances. The applicant’s emails were long and wasted both his and her time. As I have already noted, the emails had a strong subtext of hostility directed towards Ms Watson. Ms Watson’s email did not cut off communication but encouraged the applicant to communicate with her by phone. She explained in clear terms the emotional effect of the applicant’s long emails on her and told him that his behaviour ‘needs to stop’. Any reasonable employee would have accepted what was obvious from the email, that any issues he had with Ms Watson should be raised with her by telephone.
Ms Watson responded separately to the email regarding the EBS. She stated:
I feel that this email is rudely composed and not appropriate for a TO2 to a manager. How about requesting assistance politely as opposed to directing me to fix this? Personnel help or your line manager can assist you with EBS. If they need to confirm things with me, then they do.
You are welcome to give me a call to discuss when you are at work.
At this point the applicant began to develop symptoms.
In his claim form the applicant indicates that he first noticed symptoms of his injury on 4 March 2019 and first sought medical treatment 5 March 2019.[30] He attended his GP Dr Wilson on 5 March 2019 and 8 March 2019.
[30] TB 546.
The applicant did not take up the opportunity to communicate with Ms Watson by telephone. Instead, he waited for for ten days and on 11 March wrote a further email to Ms Watson, contrary to the instruction he had received. He responded in the following terms:
I acknowledge your two emails to me of 1/3/19 at 7.26am and 7.28am respectively and feel obliged to make a response to your sentiments expressed therein, in the order they were sent to me.
Re your 7.26am emal. I have no expectation to receive a ‘lengthy email’ back from you; merely to have have [sic] any questions or queries I have asked to be simply answered and/or addressed. It is your prerogative to respond how you see fit. Similarly I would expect that due and objective consideration is given to any suggestions I may have made eg in recent times about the Brisbane Airport roster which OIC Marin Mynott had first raised with me. I make the point that the vast majority of time that my emails have been in response to communications I had received from other BoM personnel on matters. I believe that I have been treated differently during the past year or so and felt targeted and harassed as a consequence – it is not a nice feeling. Finally I think your directive to communicate over the phone is unreasonable and somewhat of an overreaction. Given circumstances where operationally I may be on duty at night, the directive is impractical in any case; not withstanding I would question anyone trying to compel any employee to communicate only be certain means. I just do not think that is right.
Re your 7.28am email. I respectfully reject your view that my email re my attempt to enter a revised Recreation Leave application into the EBS was “rudely composed and not appropriate for a TO2 to a manager”. I used the words “please” and “thank you” in my email to you, and fail to see anywhere that I had been disparaging to yourself. I have in the past year or so have had difficulty with the EBS on at least 4 occasions. You were made aware of that and did assist previously in sorting out some issues with the EBS, by communicating with head Office, to which I thanked you for. The EBS is problematic at best; and it is “ridiculous” to have to try to navigate a system that regularly creates difficulties for an employee to utilise. Thankyou in anticipation of your consideration of the above.
The email is in effect a refusal by the applicant to accede to the wishes of Ms Watson, clearly expressed and fully justified in her email, that communication take place by telephone rather than email. It is also an attempt to justify what objectively was a rude and inappropriate email.
The only positive thing that can be said about the email is that it openly articulated for the first time what had been driving the applicant’s inappropriate correspondence for the past 9 months – that he believed he had been treated differently and this gave him the ‘not … nice feeling’ of being targeted and harassed.
Having reviewed the evidence in detail, I am satisfied that the feeling was a genuine response to events which were occurring in the workplace – but the applicant was attributing to those events malicious motivations that were not present. The applicant, despite the benefit of access to a vast array of documents held by the employer and having access to many of the witnesses responsible for the decisions that he regarded as adverse to him, did not produce any persuasive evidence consistent with him being personally singled out for adverse treatment.
I am satisfied that this not nice ‘feeling’ which the applicant experienced each time a decision did not go his way was based on the applicant’s own sensitivity. Every time that he did not get one hundred percent of what he wanted, he felt targeted. This reaction to benign management decisions was never reflected on by the applicant. He seems incapable of accepting that sometimes the application of general policies or the requirements of the workplace could mean that he did not get everything he wanted all the time.
Receipt of the applicant’s 11 March email had a significant adverse effect on Ms Watson.
On 12 March she approached her supervisor Samantha Thompson in relation to it. Ms Thompson felt as her supervisor it was appropriate to become involved to support Ms Watson and ensure a safe working environment for her.
The other significant event on 12 March 2019 was that Ms Watson submitted what she described as a ‘claim for Harassment’ [sic] in the covering email, but which was in fact an incident report. Ms Watson complained about the applicant’s behaviour on the following occasions:
(a)Emails and phone calls with the applicant concerning the denial of his flex arrangement on in late June and early July 2018;
(b)Email complaints from the applicant concerning the abandoning of the TO2 selection process;
(c)Email complaints from the applicant concerning the refusal of flex leave on a specific day in September 2018;
(d)The applicant’s email of 27 November 2018 revisiting previous decisions of Ms Watson;
(e)The applicant’s emails concerning the failure to grant the applicant the leave he requested for the full period in April and May 2019;
(f)The applicant’s email demanding action to fix his problem with the EBS;
Ms Watson describes the significant adverse reaction she had to the emails which the applicant sent. Including, for example, ‘I am feeling so deflated that any email from Adam makes me upset. I find it difficult to sleep and have anxiety for up to 24 hours. I am feeling harassed by the repeated lengthy emails and the running commentary on past correspondence.’[31]
[31] TB 1850.
The applicant did not become aware of this complaint for some time.
On Tuesday, 12 March 2019 at 3:32PM Ms Thompson emailed the applicant to advise him that until further notice all operational and staff management matters were to be sent to his direct supervisor, Martin Mynott, and any matters that required escalation were to be sent to her.[32]
[32] TB 1282.
This development had a significant effect on the applicant’s health.
Dr Vila in her report of 20 December 2022 states as follows:[33]
Adam’s psychological well-being and overall health deteriorated as a consequence of the circumstances to do with the complaints process. I am aware that Adam consulted with his Redcliffe GP, Dr Moray Wilson on 5/3/19 and on 8/3/19.
According to Dr Wilson’s clinical notes “Adam experienced work stress, is likely….suffering from anxiety and depression”. Also during a long (60 mins) consultation with Dr Wilson on the 14/3/19 he notably diagnosed Adam with “Adjustment disorder with mixed anxiety and depressed mood.” This pertinently had followed Adam’s receipt of the 12/3/19 email from Ms Thomson.
[33] TB 1565.
Having reviewed the medical notes of Dr Wilson I am satisfied that the applicant was clearly stressed by the email he received on 1 March 2019.[34] However, the event which tipped him into suffering an adjustment disorder with mixed anxiety and depressed mood was the email from Ms Thompson directing him not to communicate with Ms Watson. That is the event specifically identified by Dr Vila as important and is consistent with a very long visit to Dr Wilson on 14 March 2013, which also identified ‘adjustment disorder with mixed anxiety and depressed mood’ as the reason for the visit. It was at this point that the applicant developed an ailment outside the bounds or normal psychological functioning.
[34] TB 2646-7.
While I am satisfied that the first relevant event which needs to be considered to determine whether it constitutes RAA is Ms Thompson’s email of 12 March 2019, there are other events during March and April which contributed to entrenching and maintaining the disorder including the applicant’s reaction to the possibility that there may have been a complaint about him.
The sequence was as follows. On 28 March 2019 the applicant responded to Ms Thompson in the following terms:
I want to acknowledge your email to me below of 12/3/19. Your comments based on communications you have received from Hub manager Layla Watson do behove of me to comment on this unfortunate scenario that seems to have developed as a result of little to justify it: and which I believe has the real potential ‘to open up a can of worms’.
Firstly I would ask to be informed by yourself has an official complaint or other been made of me arising from the contents of your email and/or recent communications from Ms Watson?
Secondly, I note that you copied Martin Mynott OIC at Brisbane Airport into your 12/3/19 email to myself. I was disappointed that you chose to include copies of two of my emails in your 12/3/19 email without first discussing that with me and asking if I had objections to that? It was also of concern that the inclusion of the three emails in total which you included in your 12/3/19 email seemed to be quite selective. I think in fairness to all parties in order to provide a complete and transparent account of what had transpired, then you should have included other emails from myself and Ms Watson, to enable any reader to get a balanced and more accurate perspective on matters overall.
The email went on to seek clarification of Ms Thompson’s earlier email and provided commentary on it. The applicant advised that he regarded the obligations imposed upon him by her direction as ‘onerous’, ‘unreasonable and unjustified’. He advised that he regarded Ms Thompson’s email as an ‘over-reaction’. He characterised Ms Watson’s email characterising the email he had written demanding that she ‘rectify’ his problem with the leave system ‘by manually entering my Leave request…and notify me when this has been done’ as ‘rudely composed and not appropriate for a TO2 to a manager’ as ‘ludicrous and a gross over-reaction’.
He expressed how disappointed he was with the reaction of Ms Watson ‘to effectively withdraw herself from email communications between us’. He expressed the view that this ‘cannot be justified’ by the content of past communications and constitutes a form of censorship of his right of expression about work issues. He claimed the instruction was ‘reactionary’, made the BOM seem like the armed services and suggested that the approach taken was contrary to the Enterprise Agreement and the APS Codes. He went on to state:
I believe that there is a deliberative [sic] attempt by some in BoM management to target me by isolating myself using the pretext that my email communications are in some way untoward or other, therefore denying my right to communicate by email, specifically to Ms Watson. I feel ostracised and stressed by the reactions now directed at myself.
On 1 April 2019 the applicant sent an email to Ms Watson asking to be advised upon his return from leave in what capacity she intended to use him and at what location. This email was contrary to the instructions which he had been given earlier by Ms Thompson, as well as the previous direction from Ms Watson herself.
He then went to his GP Dr Wilson, who noted the reason for the visit was adjustment disorder with mixed anxiety and depressed mood.
On 2 April 2019 Ms Thompson responded to the applicant’s emails with a courteous email encouraging the applicant to engage with his direct supervisor and if he was unsure what was appropriate to engage directly with her.
On 3 April 2019 the applicant attended Dr Wilson again and indicated that he was very worried about returning to work at the Hub after his return from leave.
On 4 April 2019 the Employee and Industrial Relations area of the BOM decided that because the applicant was going on leave that it was appropriate to delay advising him about the complaint.
In response to the applicant’s direct approach to Ms Watson on 1 April 2019, on 5 April 2019 Ms Thompson re-iterated that there was to be no direct communication between the applicant and Ms Watson until further notice. She also advised the work arrangements that would apply when the applicant returned from leave.
The applicant commenced recreation leave on 5 April 2019.
On 9 April 2019 the applicant attended Dr Vila. She recorded symptoms ‘2ndary to harassment and bullying and noted:
Manager Layla will no longer speak with Adam and trying to ostracise him at work.? Adam is suffering from adjustment disorder again based on this work place stress. Adam does not wish to go back and work in the Hub.
He returned to his GP on 10 April 2019. Dr Vila recorded the following:
Adam is suffering from adjustment disorder again based on this workplace stress. Adam has understandable concerns and anxieties about returning to work in the Bureau of Meteorology Brisbane Hub. Especially if the current untenable workplace circumstance is not addressed. Adam is being subjected to work under a manager who will not communicate with him. This is becoming detrimental to Adam’s mental health and well being.
On 11 April 2019 the applicant emailed Ms Thompson seeking clarification on whether an official complaint had been made about him and noting that if he returned to work at the Brisbane Hub, that was where Ms Thompson worked. The applicant also expressed interest in being considered for what is known as ‘leave relief’ opportunities within the BOM which allow for postings to other parts of Australia to backfill positions.
Ms Thompson responded to that email on 24 April 2019. She did not directly answer the applicant’s question as to whether he had been the subject of an official complaint. She had referred that aspect of the applicant’s query to the HR department of the BOM. She did however confirm that ‘there should be enough separation’ between the applicant and Ms Watson when he began working at the Hub.
On 1 May 2019 the applicant saw Dr Wilson, and on 2 May 2019 the applicant and his father saw him again. Dr Wilson concluded as follows:
Ultimately I suspect won’t ever be able to return to work if things are the way they are he is anxious +++re the thought of having to work in an office with Leila who he is meant to not communicate with…understandable
On 2 May 2019 the applicant again emailed Ms Thompson insisting on an answer to the question of whether he had been the subject of official complaint. He alleged that the refusal to answer constituted bullying. He reiterated his reservations about working at the Hub and demanded more information about leave relief opportunities. He then raised an issue about the service of a summons issued in earlier Tribunal proceedings.
Ms Thompson responded on 7 May 2019 in the following terms:
Sorry, I thought my answer was clear – Yes – Layla has raised her concerns with me arising from the contents of your emails. My actions are not a direct response to a formal complaint. In respect to a formal complaint I need to refer this matter to HR to respond… If you believe any of my actions constitutes [sic] bullying please let me know (or HR if you’re not comfortable discussing them with me directly) and I will seek advice and guidance from HR… Your reservations have been noted, I can only say that we will be monitoring the situation… I would think that any [leave relief] that can’t be filled locally would go out for EOI and you would have the opportunity to apply…I would expect its [sic] quite confronting to be required to accept a summons for someone else. I will forward this matter to Legal.
On 8 May 2019 the applicant saw Dr Vila again.
On 9 May 2019 Ms Ward of the BOM’s Employee and Industrial Relations area contacted the applicant. She informed him:
I typically would not contact employees on leave, however it has become apparent that you have requested a response from Samantha Thompson, on several occasions while you have been on leave, to whether a formal complaint has been lodged against you. I am aware Sam has advised you she has referred your email to HR, being myself.
I would like to arrange a time to meet with you to and [sic] discuss. Given you are on leave a telephone conversation may be best…
The applicant responded with a lengthy complaint about not being advised of whether a formal complaint had been made.
On 13 May 2019 Ms Ward responded in the following terms:
I have been waiting for your return from recreational leave to discuss the matter with you, however given your continual requests to Ms Thompson to answer your question a decision was been [sic] made to advise you before you return… [Y]es, we have received a formal complaint from Ms Watson about yourself…
On 15 May 2019 the applicant was advised that Ms Amy Hall was to be the delegate to determine what to do in relation to Ms Watson’s complaint. Ms Hall had been involved in some of the earlier disputes the applicant had had with the BOM and he perceived her as being hostile to him. The absence of detail about the allegation weighed heavily on the applicant.
On 23 May 2019 the applicant advised that he was certified unfit for duty due to illness until 12 July 2019.
He has not returned to work since.
Following the decision to cease work, the applicant’s treating doctors have not been consistent in their recommendations concerning contact between the BOM and the applicant. In a letter dated 3 June 2019 the applicant’s GP Dr Jones recommended that it was in the interests of the applicant’s physical and mental health that he not check work emails and had a ‘complete break from work’.
In July 2019 the same doctor ‘strongly recommended that the applicant be provided with ‘details of the complaint without further delay so he knows what he is facing as this is weighing heavily on his mind’.
I am satisfied that the events which either significantly aggravated the applicant’s adjustment disorder, or which generated a new one, consist of the following:
(a)The email from Ms Thompson directing the applicant not to communicate directly with Ms Watson and the subsequent email advising him that he would be returning to work at the Hub;
(b)The correspondence from the BOM concerning the formal complaint by Ms Watson and the BOM’s responses to the applicant’s requests for more information.
I am satisfied that the aggravated or further adjustment disorder was established by 2 May 2019 based on Dr Wilson’s notes.
Accordingly, the question to be determined is whether the applicant’s adjustment disorder is excluded from the definition of injury as a consequence of it being the result of reasonable administrative action taken in a reasonable manner. For the following reasons I am satisfied that it is.
Reasonable administrative Action
What constitutes administrative action is not defined in the SRC Act. However it has been the subject of consideration by the Federal Court.
In Commonwealth Bank of Australia v Reeve[35] Rares and Tracey JJ said:
…Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job… The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s4(1).
However, the Explanatory Memorandum did not suggest that ‘administrative action’ was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it.
[35] [2012] FCAFC 21 (‘Reeve’).
In Long v Comcare[36] Tracey J observed that both the separate reasons of Gray J and his own and Rares J's joint reasons in Reeve:
... established that ‘administrative action’, within the meaning of s 5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person's employment. Such action may or may not involve the application or implementation of some particular policy. The ‘formality’ or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.[37]
[36] [2012] FCAFC 21.
[37] Ibid [24].
I am satisfied that the direction that the applicant not communicate with Ms Watson was administrative action taken in respect of his employment. The applicant’s conduct had been identified by Ms Watson as inappropriate and it was having an adverse effect upon Ms Watson. In order to ameliorate that concern specific action was taken in relation to the applicant’s employment to prevent the situation worsening. It was ‘specific administrative action directed to the person’s employment itself’.
I am also satisfied that the action was reasonable and taken in a reasonable manner. Ms Watson had at that point endured multiple obnoxious and inappropriate communications via email from the applicant. She had attempted to deal with the issue herself by directing the applicant to communicate by phone. The applicant refused to do that and continued to use email in an oppressive and insensitive way. Given Ms Watson’s indications to Ms Thompson of the stress this was putting her under, it was reasonable and appropriate for her to direct the applicant to cease communicating with Ms Watson. Ms Thompson delivered that message in a reasonable and appropriate manner.
In relation to the BOM’s correspondence in response to the applicant’s queries about whether a formal complaint had been made about him, I am satisfied that this constituted administrative action. As a result of the bullying complaint made by Ms Watson, the applicant was likely to be subjected to some kind of informal or formal disciplinary investigation. How that should be handled required administrative action to manage the relationship pending the commencement of that process. All the steps associated with those processes were administrative action. Again, they were ‘specific administrative action directed to the person’s employment itself’.
I am also satisfied that they were reasonable. The BOM formed the view that it was in the applicant’s interests not to be advised of the complaint just prior to going off on leave. That is a reasonable decision and one which was made with the applicant’s best interests in mind. However, the applicant, by persisting with communication while on leave, exerted significant pressure on the BOM to disclose whether there had been an official complaint about him. After considering the particular circumstances of the case, the BOM changed its position on what would best serve the applicant’s best interests and advised him of the complaint while he was on leave. Given the pressure the applicant was applying, that was also a reasonable decision. When the information was conveyed, it was conveyed in a reasonable manner.
I am satisfied:
(a)that the applicant suffered from a new adjustment disorder or a significant aggravation of an underlying adjustment disorder in April and May 2019;
(b)The adjustment disorder meets the definition of disease in the SRC Act in that it is an ailment significantly contributed to by the applicant’s employment;
(c)If the applicant had not been directed not communicate with Ms Watson and there had not been communications which delayed directly disclosing that the applicant had been the subject of a complaint, I am satisfied that he would not have suffered from that disease;
(d)the direction not to communicate with Ms Watson and the decision to delay communicating that a complaint had been made about the applicant were administrative actions as that term is understood in the SRC Act;
(e)Those actions were reasonable in the context of the longstanding inappropriate communication engaged in by the applicant and the desire on the part of the BOM to reduce or eliminate communications which raised difficult issues for the applicant while he was on leave. The relevant actions were taken in a reasonable manner;
(f)As a consequence, the applicant’s disease is not a compensable injury because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Conclusion
For the reasons outlined, the decision under review is affirmed.
I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.
Associate.
Dated: 28 March 2024
Date of hearing:
17-21 July 2023
Date final submissions received:
6 December 2023
Applicant’s representative
Counsel for the respondent:
Solicitor for respondent:
Mr Ronald Marshall
Mr Ben Dube
Ms Kellie Latta
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