Marshall and Comcare (Compensation)
[2023] AATA 34
•20 January 2023
Marshall and Comcare (Compensation) [2023] AATA 34 (20 January 2023)
Division:GENERAL DIVISION
File Numbers: 2017/3785 and 2017/6329
Re:Adam Marshall
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Mr A. Maryniak KC, Member
Date:20 January 2023
Place:Melbourne
The reviewable decisions dated 4 May 2017 and 21 August 2017 are affirmed.
.......................[sgd].................................................
Mr A. Maryniak KC, Member
Catchwords
WORKERS' COMPENSATION - Safety, Rehabilitation and Compensation Act 1988 (Cth) - Two applications - Where Respondent accepts Applicant suffered from a condition which was significantly contributed to by his employment - Where Respondent accepts certain events contributed to aggravation of adjustment disorder - Whether Applicant's condition resulted from reasonable administrative action taken in a reasonable manner - decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Martin [2016] HCA 43
Comcare v Stewart [2019] FCA 365
REASONS FOR DECISION
Mr A. Maryniak KC, Member
20 January 2023
The Applicant, Mr Adam Marshall, seeks review of two decisions:
(i)a decision dated 4 May 2017, which affirmed a determination of 7 March 2017 (First Application); and
(ii)a decision dated 21 August 2017, which affirmed a determination of 25 July 2017 (Second Application).
Both decisions denied liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for an “aggravation of adjustment disorder” on the basis that each resulted from reasonable administrative action taken in a reasonable manner in accordance with s 5A of the Act. Both applications were heard together by consent.
The Respondent accepts, and it is not in issue, that on or about 31 August 2016, 7 December 2016 and 23 March 2017, the Applicant suffered from a mild or minor adjustment disorder with symptoms of anxiety and depression which was significantly contributed to by his employment on each of the three occasions.[1]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
Further, the Respondent accepts, and it is not in issue, that the following events (either alone or in combination) significantly contributed to the Applicant’s aggravation of adjustment disorder:
First Application
(a)31 August 2016 adjustment disorder:
On or about 24 August 2016, the Applicant was told by his employer, the Bureau of Meteorology (the Bureau), that it would be unable to extend his Motor Vehicle Allowance (MVA);
(b)7 December 2016 adjustment disorder:
(i)From 5 September 2016, the Bureau raised queries with the Applicant regarding cabcharges;
(ii)On or about 21 November 2016, the Bureau queried with the Applicant the distances in his claimed MVA travel expenses; and
(iii)On or about 25 November 2016, the Applicant was told that he had been overpaid and was not entitled to receive Isolated Establishment Allowance (although the Applicant did not press this event in closing submissions).
Second Application
(a)23 March 2017 adjustment disorder:
On 22 March 2017, the meeting between the Applicant and Mr Arnold, his then supervisor at the Bureau.
The parties also accept that but for each event above, the Applicant would not have suffered from the relevant adjustment disorder. Thus, for the purposes of s 14 of the Act, it is not in issue that the Applicant suffered a condition outside the boundaries of normal mental functioning and behaviour and that condition was contributed on each occasion, to a significant degree, by the Applicant’s employment.
The Tribunal must determine, in respect of each Application, whether or not the Applicant’s condition resulted from reasonable administrative action taken in a reasonable manner.
CONSIDERATION
Extensive documentary evidence has been lodged with and considered by the Tribunal, together with the oral evidence of the Applicant, Mr Arnold, Dr Alexandra Evans and Professor Andrew Taylor (psychiatrists engaged by the Respondent), all of whom were cross examined.
The Tribunal has also considered:
(a)the Applicant’s Statements of Facts, Issues and Contentions;
(b)the Respondent’s Statement of Facts, Issues and Contentions;
(c)the Applicant’s Closing Submissions lodged on the final day of the hearing; and
(d)the oral submissions of the parties.
For the purposes of defining ‘injury’ in s 5A(1) of the Act, and without limiting that subsection, by s 5A(2), ‘reasonable administrative action’ is taken to include, relevantly:
(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;
…
(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.
The purpose of the reasonable administrative exclusion as noted by the High Court in Comcare v Martin:[2]
…was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependant upon the subjective psychological drivers of the employee’s reaction.
(footnotes removed)
[2] [2016] HCA 43 at [46].
The Tribunal is to approach the relevant questions of fact based upon a qualitative test based on an objective measure of reasonableness. It is necessary to identify the relevant administrative action(s), the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the employee, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer.[3]
First Application
[3] Comcare v Stewart [2019] FCA 365 at [70].
31 August 2016 Adjustment Disorder
The MVA event comprises various queries regarding the Applicant’s MVA from 24 August 2016. The Applicant was asked whether he would be willing to further extend his leave relief posting (in Melbourne from his home base in Brisbane) until the end of 2016, and an alteration to his MVA was foreshadowed. This was confirmed in an email dated 26 August 2016.[4]
[4] Exhibit A12: Email dated 26 August 2016.
This resulted in the Applicant taking time off as he developed an adjustment disorder from 31 August 2016. Upon returning to work on 2 September 2016, the Applicant sent a very detailed response to the 26 August 2016 email seeking, inter alia, clarification regarding an ‘end date’ to the proposed extension and explaining why in his view it would be inappropriate for him to extend his posting without receipt of the MVA. After the Bureau had properly considered the Applicant’s response, as is evident from emails between Bureau management from 2 September 2016 to 5 September 2016,[5] it responded on 6 September 2016. The Bureau clarified the extension of the posting offered was until 12 January 2017 and confirmed, as per the Applicant’s request, that the existing MVA would continue to be paid or funding for the transfer of the Applicant’s personal vehicle to Melbourne would be provided, if necessary.[6] The Applicant consequently and voluntarily accepted the posting extension by email dated 6 September 2016.
[5] Exhibits A13, A14.
[6] Exhibit A15.
Having considered the evidence relevant to the MVA event, the Tribunal is satisfied that the Bureau’s actions in this regard were reasonable and that the administrative action taken, as discussed above, was reasonable and undertaken by the Bureau in a reasonable manner.
7 December 2016 Adjustment Disorder
The Applicant suffered from a further adjustment disorder on 7 December 2016. The Applicant’s initial claim listed the significantly contributing factors to this event as administrative actions by the Bureau regarding cabcharge vouchers, an Isolated Establishment Allowance (IEA), and a MVA travel distance query. However, during the hearing and in closing, the IEA allegation was essentially not pressed by the Applicant.
In any event, having considered the evidence regarding the Bureau’s administrative action in respect of the IEA as initially alleged, and the fact that the Applicant accepted that an amount had to be repaid, it is clear that the Bureau’s conduct in dealing with the Applicant regarding this was reasonable administrative action taken in a reasonable manner, and the Tribunal so finds.
The Applicant submitted that the Bureau’s querying of cabcharges from about 5 September 2016 was also a significantly contributing event. The Bureau had emailed the Applicant ‘undertaking a routine confirmation of cabcharge e-tickets that are outstanding for various business purposes’. The Applicant was asked to ‘confirm the sequence numbers of the e-tickets’ in his possession.[7]
[7] Exhibit A19, 61: Email dated 5 September 2016.
The Applicant responded by email on 8 September 2016, providing the sequence numbers, and Ms Barrett of the Bureau confirmed a reconciliation of the numbers by email on 9 September 2016. On 13 October 2016, Ms Barrett again raised a query regarding the previously identified cab charge e-tickets. On 18 October 2016 Ms Barrett asked the Applicant (having been allocated a further 4 cab charges per an email from Mr Jefferson of the Bureau on 13 October 2016) why he required “another 4 cabcharge etickets” if the previously discussed ones had not been used. The Applicant responded by email on 24 October 2016. Ms Barrett clarified the use of the various cab charge vouchers by email on 25 October 2016.
Having considered the evidence and circumstances associated with this event including the emails discussed above, the Tribunal is satisfied that the actions taken by the Bureau in respect of this issue were reasonable administrative actions taken by the Bureau in a reasonable manner. Whilst the Applicant may have been subjectively concerned with the queries, such does not transform them to being unreasonable objectively.
The remaining event was the Bureau querying the Applicant’s motor vehicle distance travelled. By email on 21 November 2016, Mr Jefferson raised a question regarding the Applicant’s claimed MVA of a 50 kilometre round trip between Roxburgh Park to the Melbourne Airport Office.[8] He noted that a Google Maps search for such a round trip revealed a distance of 38.2 kilometres. Mr Jefferson asked the Applicant to explain the discrepancy and foreshadowed that his MVA claims may need to be adjusted.
[8] Exhibit A21.
The Applicant provided a detailed explanatory response by email on 27 November 2016. Importantly, the Applicant explained that the actual route he took was one “not restricted by traffic lights, has less traffic and is therefore a quicker, more efficient and safer route” to take.[9] Subsequent to this email, the Bureau resolved the query in the Applicant’s favour.
[9] Ibid 137.
The Tribunal accepts that the Applicant may have been subjectively troubled by the Bureau’s various queries regarding his entitlements (as is evident from, inter alia, his email of 27 November 2016). However, on balance, having considered the evidence regarding this administrative action by the Bureau, the Tribunal is satisfied that objectively it was reasonable administrative action undertaken in a reasonable manner.
The Tribunal being satisfied on the evidence before it that each of the administrative actions discussed above both individually and collectively were reasonable administrative actions undertaken by the Bureau in a reasonable manner, the two injuries claimed by the Applicant in 2016 are hence excluded injuries under the Act. In respect of the First Application, the Tribunal affirms the decision under review.
Second Application
The adjustment disorder the subject of the Second Application is a result of a meeting with Mr Arnold in the Bureau’s Brisbane office on 22 March 2017.
On 5 January 2017 the Bureau emailed the Applicant a Movement Notice, thanking the Applicant for assisting at the Melbourne office, acknowledging the various extensions to the interstate assignment, which the Applicant had agreed to. The Movement Notice noted a Melbourne cease date of 11 January 2017 and a Brisbane start date of 15 January 2017, but with recreational leave from 15 January 2017 to 27 February 2017. Upon the Applicant’s return to work at the Brisbane office on 28 February 2017, Ms Young of the Bureau was his manager.
On 9 March 2017 Mr Arnold took over Ms Young’s role and became the Applicant’s manager.[10] On 10 March 2017 Mr Arnold approved the Applicant’s flex leave application. The Applicant agreed to work for two days at Brisbane Airport the following week. On 13 March 2017, Mr Arnold emailed the Applicant requesting that he limit his work days to “normal working hours only (no 630am starts), you should not need to work a 9.5hrs day”.[11] The Applicant then agreed to do a further dual day shift at Brisbane Airport on Friday 17 March 2017 to ensure he was prepared for a solo dayshift the following Monday.[12]
[10] Email from Mr Arnold dated 9 March 2017.
[11] Exhibit A36, 320.
[12] Exhibit A36, 322: Email from Applicant to Mr Arnold dated 16 March 2017.
In response, Mr Arnold asked the Applicant to ensure his “working hours remain within our standard hours of 0830 to 1651 with 1 hour for lunch. No overtime will be approved as discussed prior”.[13]
[13] Exhibit A36, 323: Email from Mr Arnold dated 16 March 2017.
On 17 March 2017, the Applicant applied for recreational leave for the period 14 April 2017 to 1 May 2017 generating an electronic request for leave to Mr Arnold.[14] Mr Arnold responded, indicating the request would be discussed next week and its consideration was subject to “both operational requirements and the leave of others”.[15] The Tribunal is of the view that this response by Mr Arnold was reasonable.
[14] Exhibit A27, 326: Email to Mr Arnold dated 17 March 2017.
[15] Ibid 327: Email from Mr Arnold to the Applicant dated 17 March 2017.
Having worked a 12-hour shift at Brisbane Airport, the Applicant then emailed Mr Arnold that evening.[16]
[16] Ibid 328-9: Email from Applicant to Mr Arnold dated 20 March 2017.
In his oral evidence, Mr Arnold took issue with parts of this email stating, inter alia, it was unnecessary. His reaction was the subject of questioning by the Tribunal and cross examination. The Tribunal explored whether this particular email or parts of it had made Mr Arnold angry with the Applicant. As a result of such enquiry, the Tribunal is satisfied that parts of that email rendered him disappointed rather than angry. Further, the Tribunal is satisfied that, in the circumstances, the Applicant was being in part argumentative. For example, he asserted that Mr Arnold’s response “seemingly characterises my Leave (sic) request as being unfair in respect to others that may request Leave (sic)”. Further, the Applicant only briefly acknowledged what could only be considered the reasonable and valid “operational requirements” consideration which Mr Arnold reasonably and properly raised on 17 March 2017.
Subsequent to these email interactions, Mr Arnold met with the Applicant on 21 March 2017 and approved his Leave Request.[17]
[17] See also emails between the Applicant and Mr Arnold dated 21 March 2017.
On 22 March 2017, Mr Arnold emailed the Applicant at 10:03am requesting him to “come and see me when you get in please”.[18] The emails prior to the meeting discussed above give context to the meeting.
[18] Exhibit A27, 332.
During the hearing, the Applicant and Mr Arnold gave conflicting accounts of what occurred at the meeting between them in Mr Arnold’s office on 22 March 2017. The oral testimony of both individuals has been considered together with the relevant documentary evidence including the numerous contemporaneous emails, the Enterprise Agreement and Flexible Working Policy[19] and to a limited extent, the Grange Report.
[19] Exhibit R1.
The Tribunal has considered, inter alia, the Applicant’s detailed email to Mr Arnold dated 13 April 2017. The Applicant had initially perceived that Mr Arnold’s “overall demeanour was aggravated and it was rather hostile which was also troubling to” the Applicant. The Applicant stated he was ‘specifically directed… to the Enterprise Agreement…document’ which was sitting on the table opened at clause 56.4.[20] Whilst the Applicant indicated that in his experience previously working ‘outside of the “standard” OLD hours of 0830-1651’ had not required approval by a supervisor, the Tribunal notes that the Applicant had been previously informed that Mr Arnold’s approval would be required, in communications to the Applicant prior to the 22 March 2017 meeting, including on 16 March 2017 by email.
[20] A32, 345.
The Applicant stated that during the meeting, he and Mr Arnold unfortunately “went around in circles on this Flex Time issue for a very long time; both maintaining [their] respective views” and that the Applicant felt Mr Arnold to be “visibly angry and annoyed” during part of that discussion.[21] The Applicant also stated that Mr Arnold said that he had “a personal hate of bullying and [had] no tolerance for it” and that if the Applicant ever experienced such behaviours, that he could raise them with Mr Arnold at any time.[22]
[21] A32, 348.
[22] Ibid 349.
The Applicant was cross examined about this email and the conflict between his testimony regarding the order of initial events at the meeting compared with the order of events as set out in the email. The Tribunal is of the view that the email from 2017 should be given greater weight than the Applicant’s recollections during the hearing, some 5 years later.
It is clear that the Applicant was debating issues with Mr Arnold which significantly contributed to the length and direction of the meeting, and that the Applicant became upset during that meeting. Both the Applicant and Mr Arnold gave evidence that at some point during the meeting, the Applicant closed the door. Mr Arnold took steps to find out why the Applicant was upset, including asking him whether the Applicant had “been burned by the Bureau”.[23] This is consistent with Mr Arnold’s evidence that he became concerned for the Applicant and attempted to find out what the problem was.
[23] Ibid 348.
The evidence shows that the Applicant held a view that he essentially had the freedom to unilaterally determine his own working hours: to start, finish and work overtime as it suited him without approval. He eventually and reluctantly accepted this view was contrary to the Flexible Working Policy and Enterprise Agreement during cross examination. These obvious operational requirements of the Bureau were matters reasonable for Mr Arnold to meet and discuss with the Applicant. Mr Arnold testified that Occupational Health and Safety concerns and the Bureau's duty of care were also relevant.
The Tribunal finds, consistent with the evidence of Mr Arnold, that the meeting’s duration was contributed to by the fact that Mr Arnold had to spend considerable time discussing the incorrect nature of the Applicant’s views regarding his working hours compared to the reasonable requirements of the Bureau’s policies. It is clear on the evidence that for operational reasons alone it was more than reasonable for such policies to be enforced, and Mr Arnold spent time with the Applicant discussing such matters.
When the Applicant became upset during the meeting, Mr Arnold made attempts to assist the Applicant to see things from the Bureau’s perspective. These attempts were made whilst discussing various matters with him, including his email of 20 March 2017. On balance, the Tribunal is not satisfied that Mr Arnold "shouted” at the Applicant during the meeting or behaved in any other unreasonable manner. Whilst the Applicant subjectively believed that he should not have been questioned on the topics discussed during that meeting, such is insufficient to support any finding that, objectively, Mr Arnold behaved in any manner other than a reasonable one.
Consistent with the administrative action exclusion in the Act, the reality is that employers often have to discuss with employees aspects of their work performance and perhaps counsel them on ways to improve or adjust to the needs of the employer. Naturally, sometimes employees get upset or unwell as a result of such reasonable administrative action.
When weighing up the testimony of the Applicant, the Tribunal has considered the many email exchanges between the Applicant and those in authority at the Bureau, including those discussed above. Such exchanges show a propensity by the Applicant to subjectively amplify and overreact to objectively reasonable requests and queries raised by the Bureau. The Applicant’s oral testimony was consistent with this observation and he was even reluctant in cross examination, as discussed above, to agree to the fact that the Enterprise Agreement required supervisor approval regarding commencement and finishing times if such were beyond a certain range of set times, contrary to his evidence in chief. The Tribunal also notes the Applicant’s evidence regarding how the meeting of 22 March 2017 commenced and the tension within it.
On balance, whilst the Tribunal accepts that the Applicant was a credible witness, the Tribunal has given greater weight and preference to the documentary evidence and the testimony of Mr Arnold in respect of what occurred during the 22 March 2017 meeting. Whilst Mr Arnold accepted that his testimony was limited because the events occurred some years ago, the Tribunal finds that the Applicant’s recollections of events in his testimony to be less reliable and possibly undermined by subjective amplification and the passage of time. The Tribunal gives preference to Mr Arnold’s account of what occurred and does not accept the aspects of the Applicant’s testimony that are inconsistent. The statement of Mr Taylor of the Bureau in respect of Mr Arnold supports the view the Tribunal has reached regarding Mr Arnold’s account and his conduct during the meeting.
In Mr Arnold’s statement dated 13 November 2017, he acknowledges that whilst the Applicant “can be challenging at times to manage” he had an “amicable relationship” with the Applicant.[24] Having considered that statement and the other documentary evidence and testimony of both the Applicant and Mr Arnold, the Tribunal is satisfied that the 22 March 2017 meeting was reasonable administrative action conducted in a reasonable manner. The evidence shows the Applicant has a propensity to interpret some otherwise administrative communications with him in a threatening or criticising way when such are objectively reasonable, particularly in an employer/employee context as is the case here.
[24] R2, 800.
In balancing the evidence, the Tribunal is satisfied that Mr Arnold was a credible witness and, importantly, his account of the meeting was essentially consistent with the relevant documentary evidence, including both the emails preceding the meeting between he and the Applicant, and the follow up email he sent to the Applicant on the day of the meeting.[25]
[25] Exhibit A27, 333-4: Email from Mr Arnold to the Applicant dated 22 March 2017.
Mr Arnold, as the new manager of the Applicant, had cause to meet with him to discuss working hours and the validity of the approval requirement of clause 56 of the Enterprise Agreement,[26] particularly in light of the Applicant’s conduct in the preceding days.
[26] Exhibit R1, 444.
The Tribunal is satisfied that on 22 March 2017 Mr Arnold, against the backdrop of earlier emails, reasonably wanted to meet with the Applicant to determine why he had been working after 6pm the night before and that the meeting evolved into an informal counselling session dealing, inter alia, with the Applicant’s view, as expressed during examination in chief, that essentially it was up to him to determine his own working hours. As this view was clearly contrary to the Bureau’s policies and operational requirements, it was reasonable for Mr Arnold to continue with the meeting. As was evident to the Tribunal, the Applicant’s view on this matter was strongly held and the Tribunal is satisfied that it was reasonable for Mr Arnold to spend considerable time discussing this with the Applicant, amongst other matters, during that meeting.
The Tribunal finds that the 22 March 2017 meeting was such reasonable administrative action conducted in a reasonable manner and hence falls within the statutory exclusion under the Act. Therefore, the accepted adjustment disorder which the Applicant consequently suffered from is excluded under the Act and the Applicant is not entitled to compensation.
The Applicant further submitted that the reasonableness of the action and its manner should be assessed in the context of various matters which occurred about 5 years earlier in 2011, prior to the events relating to these applications.
On 4 May 2011, the Applicant made a claim of compensation for an anxiety disorder, liability being denied by the Bureau. On appeal to this Tribunal and by consent agreement between the parties, liability to pay compensation for an “adjustment disorder with anxious mood” was accepted for a condition sustained on 5 April 2011. It was agreed on 10 December 2012, that condition had resolved, the Applicant was no longer incapacitated for employment and no longer required medical treatment.[27] In summary, the Applicant submitted that the Respondent should have foreseen what the Applicant asserted was his predisposition to suffer psychological ill-health as a consequence of one or more of the events.
[27] See AAT 2011/4881, decision dated 1 February 2013 (Deputy President J Constance).
The Applicant asserted that those managing the Applicant in 2016 and 2017 knew or should have known of the temporary adjustment disorder suffered by him in 2011 and was the subject of Dr Rose’s report.
Dr Rose conducted an independent psychiatric review on the Applicant and reported on 8 March 2012.[28] Contrary to some of the general allegations put by the Applicant, Dr Rose did not conclude that as at that date the Applicant had any predisposition to developing an adjustment disorder or any other psychological condition. Dr Rose did doubt that the Applicant would have developed his then adjustment disorder without the stressors associated with “managerial practices in relation to [his] alleged deficiencies during training for Macquarie Island and his withdrawal from the program”.[29]
[28] R2, 1257.
[29] R2, 1263.
However, Dr Rose’s report suggests this to have been a one-off episode with no history of any prior episodes. Further, Dr Rose concluded that the Applicant ceased suffering from the effects of the claimed condition around June 2011, that the Applicant had fully recovered and that his “recovery is better than what would normally be expected”.[30] Dr Rose concluded that the Applicant’s prognosis was “excellent”, that he suffered from “no impairment” and hence no treatment was required.[31]
[30] Ibid.
[31] Ibid 1264.
Having considered the totality of Dr Rose’s report, the Tribunal is satisfied that it does not provide evidence as to a propensity within the Applicant to develop any psychological conditions subsequent to that episode.
The Applicant also submitted that Mr Arnold knew or should have known of the Report prepared by Associate Professor Taylor dated 7 March 2017 (Taylor Report), as it was prepared before the 22 March 2017 meeting.
Associate Professor Taylor provided two reports at the request of the Respondent dated 7 March 2017 and 9 July 2017. On 7 March 2017, he reported:
(a)The Applicant submitted a Comcare claim with regard to alleged bullying by his supervisors at the Bureau apropos his expenses entitlement whilst on post at Melbourne Airport and that he had a similar alleged bullying Comcare claim against the Bureau back in 2011. The Applicant is sensitive to perceived bullying and victimisation;
(b)The Applicant developed a mild or minor adjustment disorder during 2016 which resolved satisfactorily after psychological therapy and the passage of time. This disorder was a relapse of his prior sensitivity to perceived workplace victimisation and bullying;
(c)The Applicant suffers autistic spectrum disorder traits (mild Asperger’s disorder) making it more difficult for him to tolerate certain social situations or social interactions; and
(d)The workplace-based expenses conflict represented a minor exacerbation and aggravation of his pre-existing adjustment disorder.
The Applicant was also assessed by Dr Alexandra Evans in a report dated 13 July 2017. She noted that the Applicant ‘described short-term emotional and psychological symptoms in the context of a stressful work interaction that occurred on 22 March 2017’ and that she did not ‘believe that he had diagnosable autism spectrum disorder’, subject to further assessment.[32] She stated that the Applicant did not, at the time of the assessment, ‘have any symptoms of a psychological or psychiatric nature and as such had no current diagnosis’.[33] She noted that the Applicant had one previous diagnosis for an adjustment disorder with depressed mood and anxiety subsequent to workplace bullying and harassment in 2011, which was resolved. She thought the Applicant may have a social (pragmatic) communication deficit, but this was only a possibility on the history she had available to her.[34]
[32] R1, 349.
[33] Ibid 350.
[34] Ibid 351.
Dr Taylor, in cross examination, stated that there was no direct link between the 2011 condition and the 2016 condition and that the Applicant was predisposed by his own nature and temperament to adjustment disorder.[35] Referencing his report of 7 March 2017, Dr Taylor noted that the Applicant’s condition in these matters was a re-emergence or relapse of the previous adjustment disorder which occurred apparently in response to alleged bullying in the workplace in 2011.
[35] Transcript P-54.
Whilst Dr Taylor did include this observation in his report, there is no evidence to support the fact that this information had been conveyed or was known to the Bureau at any time prior to the meeting on 22 March 2017, let alone Mr Arnold. In the absence of such evidence the Tribunal is satisfied that Dr Taylor’s observation does not detract from the Tribunal’s finding that the meeting was conducted in a reasonable manner. Dr Taylor’s second report and Dr Evan’s report both postdate the meeting and hence are not relevant to such consideration.
The predisposition allegation is a consideration relevant to determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment.[36] However, as discussed above, this aspect of the claims has been accepted by the Respondent in each Application for review and hence is not in issue.
[36] SRC Act (n 1) s 5B(2)(c).
So far as any relevance to the ‘reasonable manner’ consideration is concerned, the Tribunal has considered Dr Rose’s 2012 report, and with respect only to the Second Application, the Taylor Report of 7 March 2017. The Tribunal is satisfied that in circumstances where the Applicant’s 2011 condition was resolved shortly thereafter as discussed above, the Bureau did not have knowledge of such report in its interactions with the Applicant in 2016 and 2017, and in any event such report does not identify any predisposition within the Applicant. Further, where the Taylor Report was only provided to the Respondent on or about 7 March 2017, the Tribunal is not satisfied that the relevant management at the Bureau in 2016 could, and 2017 would, have had any knowledge of such matters, let alone Mr Arnold, prior to the 22 March 2017 meeting. Such findings are consistent with the fact that there is no evidence before the Tribunal that any relevant management at the Bureau had knowledge of such reports during that time. Hence, the Tribunal remains satisfied that the 22 March 2017 meeting was conducted in a reasonable manner.
The Tribunal has also considered the potential relevance of the reports received by the Respondent of the Applicant’s general practitioner, Dr Thomson, dated 6 February 2017[37] and his psychologist, Dr Siobhan McEwan, dated 11 March 2017.[38] There being no evidence before the Tribunal to suggest that these reports were within the knowledge of any relevant management at the Bureau, including Mr Arnold prior to 22 March 2017, the Tribunal finds them irrelevant to any predisposition submission, in the context of the reasonable manner consideration.
[37] R1, 77-78.
[38] R1, 122-125.
In closing submissions, the Applicant asserted, inter alia, that he was subjected to targeted ‘bullying and discriminatory behaviours’ by the Bureau and that this caused him to suffer the temporary conditions. However, this more general allegation is not made out on the evidence and the Tribunal notes that no such allegations were put to Mr Arnold in cross examination.
In light of the matters set out above, the correct or preferable decision is to affirm the reviewable decisions dated 4 May 2017 and 21 August 2017.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
........................[sgd]................................................
Associate
Dated: 20 January 2023
Dates of hearing: 9-13 May 2022 Date final submissions received: 13 May 2022 Advocate for the Applicant: Mr Ronald Marshall Advocate for the Respondent: Mr Ben Dube Solicitors for the Respondent: Sparke Helmore
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