Martin and Comcare (Compensation)
[2024] AATA 3113
•2 September 2024
Martin and Comcare (Compensation) [2024] AATA 3113 (2 September 2024)
Division:GENERAL DIVISION
File Number(s):2023/6138
Re:Matthew Ivor Martin
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President O'Donovan
Date:2 September 2024
Place:Canberra
The decision under review is affirmed.
……………..[SGD]…………….
Deputy President O'Donovan
Catchwords
COMPENSATION – bipolar affective disorder – whether medical evidence sufficient to establish aggravation – workplace communication issues – meeting with General Counsel about email behaviour – whether reasonable administrative action – obligation to ensure safety of other employees – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Commonwealth Bank and Reeve (2012) 199 FCR 463
Comcare v Mooi (1996) 69 FCR 439REASONS FOR DECISION
Deputy President O’Donovan
INTRODUCTION
The applicant seeks review of a decision made by a Comcare delegate on 7 July 2023. The delegate’s decision denied liability to pay the applicant compensation in relation to a workplace injury he claimed to have suffered while employed at Services Australia (a department of the Commonwealth Government). The applicant’s claim was in relation to an aggravation of his bipolar disorder.
In the applicant’s request for reconsideration, he described the aggravation as being the result of ‘multiple significant prior actions and interactions with his supervisor from 2021 with cataclysmic events in and around the week of 21 February 2023’.
In the hearing, the primary incident pressed as causative of an aggravation of the applicant’s longstanding bipolar condition was a meeting with his ultimate supervisor on 21 February 2023. There was some medical evidence advanced at hearing which suggested that more general work issues may have produced an aggravation around October 2022. I will address that issue even though prior to the evidence given by the applicant’s psychologist at the hearing, earlier difficulties at work were framed more as context rather than as causative of the aggravation of the applicant’s bipolar condition.
The respondent denies that the applicant has established that his underlying bipolar condition was aggravated by any events in the workplace. In the alternative, the respondent contends that if I were satisfied that the applicant suffered an aggravation of his bipolar disorder as a result of the meeting conducted on 21 February 2023, the meeting constituted reasonable administrative action conducted in a reasonable manner and thus attracts the exclusion of liability in the definition of an injury in section 5A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). To determine that question it is necessary to look both at the context of the meeting, and to resolve a factual dispute about what actually occurred at the meeting.
I have structured these reasons as follows. First, I will make general findings about the applicant’s background health and work situation prior to October 2022. Second, I will make findings about events leading up to the meeting of 21 February 2023. Third, I will consider whether there is adequate evidence that the applicant suffered an aggravation of his bipolar disorder as a result of the meeting of 21 February 2023. Fourth, I will consider whether the conduct of the meeting of 21 February 2023 amounted to reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. Finally, I will consider whether there is adequate evidence to sustain the proposition that the applicant’s underlying bipolar disorder was aggravated by workplace issues any earlier than February 2023.
The evidence before me is set out in the appended Exhibit List.
BACKGROUND
The applicant was diagnosed with bipolar disorder in 2012. The condition was reasonably well managed with medication following diagnosis. He was initially treated with lithium, but this was subsequently changed to sodium valproate due to concerns about metabolic effects, and he reports having been on sodium valproate consistently since at least 2014. However alcohol and drug abuse have been the applicant’s Achilles heel in the management of the condition. He began using marijuana at age 14 and experimented with a variety of drugs including cocaine and ecstasy as an adult. He has also been a heavy user of alcohol at various points in his life.
In the decade or so since the applicant was diagnosed, he has been involved in a number of drug related incidents:
(a)January 2012 – charged with two counts of furious, reckless, or dangerous driving, and three counts of trafficking a controlled substance. It was this incident that resulted in the applicant’s referral to a psychiatrist and subsequent formal diagnosis with bipolar affective disorder;
(b)24 October 2014 – tested positive for THC in a roadside saliva test, and reported to Dr McAndrew that he had steadily increased his cannabis use over the previous six months;
(c)9 January 2015 – attended Dr McAndrew on 9 January 2015 because he needed a psychiatrist’s report for upcoming court proceedings regarding the positive drug test;
(d)7 October 2022 – pulled over by police and charged with driving while intoxicated, as well as possession of an illicit substance.
Despite his vulnerability, the applicant completed a combined Law and Commerce degree in 2018.
While studying and prior to commencing employment with Services Australia in 2021, the applicant was continuing to drink, and his doctors noted on occasion signs that his bipolar disorder was not entirely under control. In particular, on 4 August 2020 Dr Lad administered a DASS 21 (Depression, Anxiety and Stress Scale) test. The results indicated ‘extremely severe’ anxiety and stress, alongside ‘moderate’ depression. Dr Lad noted that the applicant’s mood was a little elated, with pressured speech. These are signs of what is called ‘hypomania’. Noting that the two mood extremes in bipolar disorder are mania and depression, ‘hypomania’ is a state which involves some elevated mood associated with a mix of desirable and undesirable traits which include decreased need for sleep, increased appetite for risk, increased energy and happiness, inflated self-esteem, feeling invincible, being more talkative, being easily distracted, obsession with current activity, and a tendency to impulsive behaviour.
On 5 February 2021 the applicant attended Dr Lad and reported feeling unwell after reducing his dosage of sodium valproate. On 19 February 2021 he attended the practice again and reported that, while his initial goal had been to reduce his dosage, given ‘recent stressors at work’ he was happy to increase the dose back to the previous level.[1]
[1] Noting that the applicant had only commenced at Services Australia 5 days prior to this appointment.
On 14 February 2021 he commenced work with Services Australia as a contractor, then as a non-ongoing employee in May 2021. In August 2022 he was successful in obtaining an ongoing APS4 position. During the period of his employment 14 February 2021 to October 2022 at Services Australia, his bipolar condition seemed to be effectively managed. There were however a number of employment issues. In 2022 issues were raised concerning the applicant’s communication style, which he seemed to be conscious of. Complaints were also raised by supervisors with their superiors about the difficulties in managing him. However, at no point did the applicant require time off work due to an increase in symptoms, and he did not seek further medical treatment.
During the latter half of 2022 the applicant began to progress his admission as a barrister and solicitor.
7 October incident
On 7 October 2022 the applicant went to a bar and got drunk. He acquired some cocaine at the venue. On his way home he was stopped by police and found to be driving while intoxicated, and police also found traces of cocaine in his car.
He went and saw a GP on 10 October 2022 and obtained a mental health plan. He commenced seeing a psychologist, Harold Bilboe, on 8 November 2022. He also saw psychiatrist Ingrid Butterfield on 7 November 2022.
The applicant chose to see Dr Butterfield after identifying her as a psychiatrist who had previously given opinions of assistance to persons seeking to become admitted lawyers. However by the time he got in to see her he needed assistance in relation to his ‘driving under the influence’ charge.
The applicant’s reporting of his condition to Dr Butterfield was consistent with a history of long-term bipolar disorder. At the time Dr Butterfield identified him as potentially ‘hypomanic’.
When the applicant saw Mr Bilboe on the following day he reported on the relapse that led to the criminal charges. He reported that ‘…the relapse started some 6 months ago…’. He noted also that as a Community and Public Sector Union (CPSU) delegate, he ‘got into some issues in workplace’. The nature of these issues is not specified in Mr Bilboe’s notes.
The applicant in this time period (October – November 2022) was extremely depressed, anxious and stressed according to the screening test known as the Depression Anxiety and Stress Scale (DASS21), administered by Mr Bilboe.
The charges also generated issues at work. After the applicant reported the criminal charges, his supervision arrangements were changed. The applicant’s then supervisor, Phil Tundulin, had advised his superiors that supervising the applicant was adversely impacting his health, so a decision was made to have the applicant report directly to an executive level employee, Jamie Johnson.
This was an unusual arrangement given that the applicant, as an APS 4 employee, would normally report to an APS 5. However, it appears that it was considered necessary to have the applicant report to an Executive Level 2 employee in light of concerns raised by more junior employees about the difficulties they had managing the applicant.
By mid-January 2023 the applicant’s charges had been resolved. The acute depression, stress and anxiety that he had been suffering from when he saw Mr Bilboe in November 2022 had settled. In his 13 January 2023 consultation with Dr Butterfield the applicant reported that he was sleeping well, that his appetite was stable and that his court case ‘went well’. Dr Butterfield reported that he had ‘organised thought form with reactive [sic] if slightly stressed’, and the notes from a subsequent session on 9 February 2023 state that he had a ‘[s]lightly increased rate of speech but does appear to be consistent with previous presentation’. There is nothing in the notes to suggest that the applicant was suffering from an aggravation of his bipolar disorder, or that work was contributing to it.
When the applicant saw Mr Bilboe in February 2023 his DASS 21 scores for depression, anxiety and stress were all in the normal range. The applicant identified issues with his executive level supervisor, claiming she was ‘abusing her position’. A Kessler Psychological Distress Scale (K10) test was administered which indicated that the applicant was ‘at a Mild level of risk in terms of having a psychological disorder’.
Events leading up to the meeting of 21 February 2023
There were, however, a number of work issues that developed from October 2022.
First, the applicant was given a Formal Direction on 14 October 2022 by his then-supervisor Lisa O’Donnell to report on the progress of his legal case in relation to the drink-driving and possession charges. It appears this direction was not complied with. In an email to the applicant on 12 January 2023, the new General Counsel for the area, Nicholas Parmeter, noted that he had not been advised of hearing dates in December 2022 and January 2023, and that non-compliance with the Formal Direction may constitute a breach of the APS (Australian Public Service) Code of Conduct.
Second, on 2 November 2022 and again, subsequent to a meeting on the issue, the applicant was advised by email that he may have committed a privacy breach by including the names of colleagues (who had reportedly not given their consent) and an internal Services Australia document in an email to the Community and Public Sector Union (CPSU).[2]
[2] T 587.
Third, due to error rates in the applicant’s work processing, he was placed on a quality assurance program (QA) to reduce that error rate. The QA process ran for several weeks from December 2022 – 15 February 2023, and the applicant completed it successfully.
Finally, as previously noted due to the difficulties in managing the applicant’s workplace behaviour a decision by then-General Counsel Lisa O’Donnell was made to change the applicant’s supervision arrangements such that he was to report directly to an executive level employee, Jamie Johnson. His workstation was moved to a group of desks within line of sight of Ms Johnson’s office. The applicant became concerned that he was, as he put it, ‘in a team of one’. This arrangement meant that when other members of his branch who did similar work to him had meetings with their supervisors, he was excluded due to the fact that he did not directly report to the relevant team leader. The applicant did however continue to have contact with colleagues as part of the QA process and because he was doing similar work to others in the team.
Significant tension then developed with the applicant’s new supervisor Ms Johnson. One source of tension emerged because the applicant wished to undertake volunteer work for ACT Mental Health Consumer Network (ACTMHCN). In order for him to undertake that work it was necessary for the applicant to get approval as it involved him altering his work pattern and using Commonwealth resources. The applicant and his supervisor Ms Johnson found the process for assembling the material to allow the volunteer work to be approved frustrating, and it was this issue in particular which generated some of the heat which resulted in the meeting between the applicant and General Counsel on 21 February 2023.
Additionally, the applicant was very concerned to ensure that his individual performance agreement (IPA) was finalised after a meaningful interaction with his supervisor and in the timeframe required by the Department. The deadline was 23 February 2023. He raised the issue with Ms Johnson repeatedly, which caused further friction.[3]
[3] See, eg, T 150.
The fact that many of these issues remained unresolved for an extended period through January and February 2023 was evidently a source of stress for the applicant.
On 11 January 2023 the applicant had a meeting with Ms Johnson about his Individual Performance Agreement (IPA), the Services Australia Capability Framework (specifically how he could be supported to take on a higher role), and what he considered to be inadequate training and ‘lack of guidance and support from past leadership’, among other issues. The meeting was clearly unpleasant for both parties, and resulted in Ms Johnson making a formal complaint to Mr Parmeter about the applicant, stating that she had felt ‘attacked, threatened, intimidated and not safe being in a room with Matthew’. She referred to his ‘constant attack on me in all interactions’.[4]
[4] TB 108.
The following day, on 12 January 2023, Mr Parmeter met with Mr Martin to discuss these workplace issues. At that meeting Mr Parmeter gave the following direction, which was confirmed in a subsequent email:
I am directing you to not engage in further communication of this nature. Any further communication with Jamie [Johnson] or any other staff member should be related solely to your work, as it concerns your role in the Information Release team.
If you wish to raise matters concerning your IPA or concerns about workplace issues, you can raise these directly with me. You are also able to seek resources and support from HR, as required.
During our conversation I referred to the Formal Direction issued to you by Lisa O’Donnell on 14 October 2022 (which I have attached). As discussed, point 2 of that Direction letter requires you to do certain things within 24 hours of becoming aware of new information related to proceedings on criminal charges brought against you (including changes in future court dates). I have become aware that a hearing date had been scheduled in December and that a further date for sentencing has been scheduled on 19 January 2023. You have not previously advised me of these events. As noted in the Formal Direction, non-compliance with matters covered in the Formal Direction may constitute a breach of the APS Code of Conduct. Within the next 24 hours, please provide me with any relevant information, as required by the Direction letter.
…
I can understand the matters occurring in court must be very stressful. I asked you during our discussion this morning if you needed support in respect of your health and safety, including psychological support, and I referred to the agency’s EAP provider should you wish to access that support. You indicated that you are well supported by your own psychologist and health professionals, which I am pleased to hear.
The various issues between the applicant and those supervising him continued to simmer through January and most of February. These issues came to a head over the course of 24 hours beginning on 20 February 2023.
The sequence was as follows.
At 9.04 am on 20 February 2023 the applicant emailed Ms Johnson following up his request to engage in volunteering for the ACTMHCN as a consumer advocate. The email addressed matters that had been identified as necessary to resolve prior to approval, but also suggested that there was no need for the applicant to complete an Outside Employment request in relation to the voluntary role.
At 9.51am the applicant sent an email to Ms Johnson concerning specific work process issues he was encountering following his successful completion of the QA process. This was responded to courteously by Ms Johnson at 10:19am.
At 10.28 am the applicant sent an email confirming what he was going to do in relation to the process issues and following up in relation to his IPA.
At 1.10pm the applicant wrote to Ms Johnson concerning the CASTRO Project. The CASTRO Project involved the development and implementation of a new customer information release system to be used by the branch in which the applicant worked. It was described in evidence as important to the work for the applicant’s area but peripheral to the specific work of the applicant. He did however receive updates about the implementation of it. In his email of 1.10pm he wrote:
Still quite unsure as to what is happening with CASTRO and my part in it.
Could you advise what we should do with such correspondence from Aaron.
Thanks, I feel a bit in the dark over the whole CASTRO thing.
At 3.59 pm Ms Johnson responded to the applicant in relation to his queries concerning his request to undertake volunteer work. In a lengthy email Ms Johnson thanked the applicant for the information he had provided and asked him to update his formal application with certain required information. She indicated that if he did this she would ‘review that when it is provided, with the view of approving your application’. She also asked him to update a calendar so she could keep track of his other personal appointments and his health and safety representative responsibilities.
At 4.14 pm the applicant responded. He appears to have missed that he was only one step away from having his volunteering request approved by Ms Johnson. The email had a slightly aggressive tone. It read as follows:
Thanks for the response to my correspondence of January, the last couple of weeks and this morning.
I have included Nick [the General Counsel] and Leanne Sheppard [from People and Culture] in this correspondence in order for them to assist us to navigate this request and other workplace relations issues.
I appreciate everyone’s time, I am sure an agreement can be reached in order for me to engage in volunteering to assist the most vulnerable in the community.
At 10:00 am the next morning the applicant wrote to Ms Johnson again. He wrote:
Thanks for your time yesterday as we navigate the Outside Employment request. Your email below of the afternoon did raise some anxiety as it seems I need to provide further information which I believe has already been provided.
He advised that he had a meeting in the volunteering role from 11:00am to 12:00pm that day and sought approval for flex. The applicant noted:
If you are unable to release me for flex for one hour between 11.00am and 12.00pm I will need to contact ACT Health to explain Services Australia will not release me for the engagement. If you could get back to me as soon as possible with a decision, we can then organise a time with [People and Culture] to finalise requirements.
Ms Johnson responded at 10.26am apologising to the applicant for causing any anxiety and noting that she was not asking for further information but simply asking that the applicant add details of proposed working times/leave arrangements into the application so that it could be signed off.
She reiterated that she was happy to sign off on the application and happy for the applicant to take flex between 11:00am and 12:00pm that day.
At 10.32am the applicant responded, thanking Ms Johnson but again noting that he would copy in Lisa from People and Culture. He also asked for clarification as to who would be his on-going General Counsel. Ms Johnson responded at 10.57am confirming Nick Parmeter would be the Branch’s General Counsel.
At 10.51am the applicant wrote Ms Johnson a cryptic email concerning an Administrative Law seminar. Ms Johnson queried what it related to at 10.52 am and the respondent wrote at 11.57 that his email concerned professional development.
At 12.02 the applicant wrote to Ms Johnson in the following terms:
Presently, I have a lack of information in relation to my ‘new role;’ over the last few months and I have no information as to CASTRO. I have not been included in any meetings, training or consultations.
I will wait in anticipation as to what the operational moves are. I must remind you of the IPA matters and our first meeting of 2023 as review is due 28.02.2023 and I believe there is much to cover.
I will await your advice on where we are headed next.
Regarding the Outside Employment application, I will get back to that this afternoon and see if I have all in order. A discussion with Leanne in and around this would be very useful and effective.
At 12.41 Ms Johnson responded to the query about the Administrative Law seminar asking to know if it had previously been approved.
At 1.02pm the applicant responded in the following terms:
You will need to check with them.
This is meant to be part of my IPA.
For that you will need to talk to Anita, Krisha, Mel, Leanne, Abigail, Chloe and Phil as my IPAs have never been actualised, monitored or evaluated in partnership with my Supervisor and Employer.
As you are very well aware, I have been moved from section to section continuously and consistently for some reason, whilst less experienced or qualified peers are promoted.
I understand executives and SES are very busy yet I have rights to employment and career development also.
I can assure you I will not be going through another year in the fashion of the last two. In fact this is my two year anniversary today with the agency and I have no intention of resigning as the majority of the workers in this section have done over the past two years.
If you are not approving the development session so be it. We can list another agenda item for Leanne.
Furthermore if you have no intention of engaging my IPA or assisting with my professional development, in the appropriate fashion, other arrangements will need to be made.
Thanks for your time.
At 1.27 pm Ms Johnson sent an email to Nick Parmeter, General Counsel. Mr Parmeter had been cc’ed into the earlier correspondence between the applicant and Ms Johnson.
The email relevantly said:
…I have received a number of emails today and yesterday (14 in total) which is causing me much distress. Matthew is clearly not following your direction regarding multiple emails and this type of communication.
…
I feel like I am being constantly attacked when I am providing direction to him. He is making me feel quite uncomfortable and has me questioning my abilities in my role. This is extremely time consuming as well as mentally draining.
His IPA seems to be a focus for him, so can we please schedule a plan for this.
At 2.37 pm Mr Parmeter sent an email to the applicant in the following terms:
Please do not send any further correspondence to Jamie today, unless it relates to your immediate responsibilities.
I will set up a time tomorrow to speak with you about your recently [sic] workplace issues.
At 2.38pm the applicant responded, copying Ms Johnson, saying ‘Thank you Nick’.
At 2.42 pm the applicant sent a response to a meeting request for the following day headed CASTRO Overview. The response was sent to Ms Johnson and Mr Parmeter. It read:
OK Jamie
Why is this happening now with colleagues already seemingly engaged in the process and I was never included.
Sorry for communicating Nick after you asked me not too [sic]. I felt it was reasonable to ask why.
Matt Martin
The meeting
Following receipt of this email, Mr Parmeter approached the applicant at his desk.
The applicant and Mr Parmeter give quite different accounts of this meeting.
The applicant’s account is as follows:
On 22 February 2023 at around 2:30pm I had a humiliating and stressful interaction with NP, my current General Council (GC), a person 5 levels of responsibility above me. NP approached my desk and in front of my colleagues, directed that I follow him into a room. As he approached me, his manner and tone appeared aggressive and his body language indicated he was angry.
NP led me to (Lv1H10) a 2 seated room, well away from his office where he usually and regularly conducts meetings. As we walked I stated, ‘what have I done now’ and ‘I can’t do anything right’.
Once we were in the room NP immediately directed me to not communicate with JJ, my direct supervisor, an Executive Level 2 (EL2).
Earlier in the day I’d sent correspondence to JJ. I believe the correspondence would have referred to my volunteering application, work activities, job design, organisation and IPA. I recall, I stated, if my EL2 was unable to assist with these responsibilities I would find someone who could.
In an unannounced meeting with no agenda or notice:
Nick Parmeter (NP) alleged Jamie Johnson (JJ) was ‘extremely distressed’ from my bullying of her.
NP directed me to not communicate with JJ, my line manager, without providing information and guidance as to who I should communicate with concerning administrative needs.
NP directed me not to communicate with anyone.
NP stated he spoke with Lisa O’Donnell (LO).
NP conveyed I was moved to my current position due to the legal matter.
NP stated he ‘did not care’ about my admission as a Legal Practitioner’.
NP directed me to ‘do my job’ and not criticise management.
NP advised me that he would arrange another meeting, that I could bring a support person and he would bring a scribe.
Mr Parmeter’s version is as follows:
After seeing Matthew’s further email, at around 3pm on 21 February 2023 I approached Matthew at his desk and asked to speak with him. As my usual office, nearby Matthew’s desk, was occupied by another staff member, we both went to a nearby meeting room and sat down.
I said to Matthew that I had given him a clear direction not to send any further correspondence to Jamie that was not related to his immediate duties and noted he had failed to follow that direction. I explained that the direction I had given him was necessary to protect Jamie’ welfare and the welfare of other staff in the branch. I also said that I had given him a similar direction on a number of previous occasions and reminded him that he had been counselled in the past about appropriate use of written communication, including email and Teams. I asked Matthew why he had chosen to ignore my direction.
Matthew responded that he was upset, because he thought he had given Jamie all information necessary to approve an outside-work-employment application (noting Matthew had sought approval to engage in volunteering work, which would affect his usual work hours and required appropriate adjustment to his agreed work pattern).
Matthew appeared very agitated and angry when he was speaking with me. He was glaring at me, breathing heavily and had adopted a threatening posture. I said to Matthew, very calmly, that I could see that he was very upset and that he should be aware that he was behaving toward me in a way that I found threatening and intimidating which is not appropriate in the workplace. I asked Matthew if he was aware that was how he was coming across.
Matthew appeared to ignore what I had said, and responded loudly that there were ‘many things I wasn’t aware of’, and that he had ‘heaps of material’, which he had been gathering. I said that I was not getting into that now and that I would arrange a separate time for us to speak about this and other matters.
Matthew continued to speak loudly and said that he had serious concerns about previous performance reviews and no one was listening to him. He said the union knew all about the problems at Services Australia and he wasn’t going to quit.
I said that I was not going to speak with him about those other matters now, as I was already running late for another meeting, but I would arrange a time to speak with him further about this incident and other workplace issues, when he had calmed down. I advised him that when I arranged that meeting, he was welcome to bring another person to support him in the discussion and that I would arrange for a scribe to be present.
I started to end the meeting and said to Matthew that I was directing him not to engage in further correspondence via email or Teams, unless it was directly related to his work responsibilities. I then asked Matthew if he understood my direction. Matthew responded “yeah”. I asked him if he could repeat the direction back to me so that I was sure he had understood. He said “I’m not allowed to talk to anyone”. I said “No, that is not what I said. I am directing you to not engage in any further email or other written correspondence with Jamie or other staff that is not related to your work responsibilities. Can you please repeat that, so I am clear that you have understood?”. Matthew responded “Don’t engage in emails or Teams messaging that isn’t related to my work.” I nodded, said thank you, ended the meeting and we both left the meeting room.
Throughout that interaction, I remained calm and did not raise my voice. I gave Matthew a clear and reasonable direction and ensured he had understood the direction. I did not discuss or threaten any consequences or administrative action, other than to state that I would arrange a further time to speak with him. I made clear that he could bring a support person to that discussion.
I will return to the question of which version of events I prefer after canvassing events in the days following the meeting.
Fallout from the meeting
After the meeting the applicant contacted his union representative and then advised Mr Parmeter that ‘based on the distressing nature of these communications I will take leave for the afternoon’.
The following morning the applicant returned to work and emailed Mr Parmeter.
The email included the following:
The Union has raised concerns about your direction that I do not communicate with anyone, especially as I am a HSR [health and safety representative] and I say good morning to all staff each day as part of my psychosocial hazard identification. Could you provide some clarity over that direction.
Further, I have a work health and safety meeting on today. My agenda items relate to section 3 and 68 at of the WHS Act 2011 and Safe Work Australia – Code of Practice managing psychosocial hazards at work. Which predominantly relates to communicating with management about psychosocial hazards.
I am not too sure how I am to advocate WHS issues with the direction not to communicate.
Mr Parmeter responded shortly after in the following terms:
Thank you for your email.
I made clear to you yesterday and in previous conversations we have had that I was not asking you to stop speaking to other staff or otherwise restricting communication with other staff, to the extent that it is consistent with your role and participation in the workplace.
My direction is that you:
Communicate via email and Teams only where it is necessary to do so, in direct relation to tasks you are performing or for work related purposes.
Otherwise communicate respectfully, honestly and transparently, in line with the APS Values and Code.
I have now given you this direction on 3 occasions. I am advised that your former General Counsel, Lisa O’Donnell has given you this direction previously on a number of earlier occasions, in response to complaints that she had received.
I have given this direction to you because I have concerns about your communication practices, which include excessive emails and Teams communication, a number of which are critical, aggressive and discourteous toward your manager and copied to other staff. I do not regard this sort of communication as appropriate or necessary for the performance of your role and it is causing distress to the recipients of the communication.
Attempts were then made to tee up a meeting between the applicant and Mr Parmeter in relation to the workplace issues.
The applicant attended work on 23 February 2023, however he left work early to attend his GP. He placed the following annotation on the time sheet:
Bus to DR/Chemist – not allowed to speak to Supervisor as per GC
The applicant has not returned to work since.
Whose account of the meeting do I prefer?
As should be apparent from the two versions of the meeting of 21 February 2023 set out above, Mr Parmeter and the applicant do not have similar recollections of what occurred at that meeting and how each participant behaved.
In considering which version is closer to the truth I make the following observations about the applicant. First, his history of interactions in the workplace shows that he has difficulty interpreting the actions of others and difficulty predicting the effect that his actions and behaviour will have on others. The meeting with Ms Johnson on 11 January 2023 that resulted in a complaint about his behaviour is one example. The relentless email exchanges of 20 and 21 February 2023 is another. Accordingly, I do not have confidence that he perceives and remembers things accurately when there is a need to interpret the emotional content of an exchange.
Secondly, he is prone to exaggerating the impositions placed on him by others. On at least two occasions the applicant exaggerated the scope of the restriction placed on him by the directions given by Mr Parmeter: in his first email of 22 February 2023 and in his notation to his time sheet for the entry on 23 February 2023. By the time the applicant annotated his time sheet, Mr Parmeter had confirmed in writing the scope of the direction. It was impossible for the applicant to maintain that he was ‘not allowed to speak to supervisor’.
In light of these two traits, I approach his evidence with caution.
Mr Parmeter on the other hand was an impressive witness. He was exceptionally calm and his recall of relevant events came across as clear and precise. His description of the applicant’s emotional state at the meeting was consistent with the level of agitation revealed in the emails between the applicant and his supervisors over the course of the afternoon of 21 February 2023 and his version is consistent with the email exchanges which followed the meeting. His account is also consistent with his evidence that he conducted the meeting with the limited objective of protecting the health and safety of Jamie Johnson by preventing the situation further deteriorating over the course of the afternoon.
In those circumstances, I prefer Mr Parmeter’s account of the meeting (and its prelude). To the extent that there is inconsistency between the applicant’s account of the meeting and Mr Parmeter’s I prefer Mr Parmeter’s version of events.
Medical evidence
Before turning to the medical evidence, it is useful to emphasise two things. First, to be entitled to compensation the applicant must establish that he suffered an injury as that term is defined in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). In the present case what the applicant seeks to establish that he suffered an aggravation of a mental ailment which meets the definition in section 5B of the SRC Act.
The second thing to note is that work related stress is not necessarily an ailment which attracts compensation. Suffering stress can be a reaction within the range of normal human responses to distressing events. It can be of such a nature that it results in incapacity for work. But those features do not automatically establish an entitlement to compensation. To amount to a mentail ailment it must involve a mental reaction outside of the boundaries of normal mental functioning. That is an essential requirement for finding that a reaction constitutes a mental ailment. So much is clear from the Federal Court decision in Comcare v Mooi.[5] The medical evidence in support of the applicant’s claim needs to be considered through this lens.
[5] (1996) 69 FCR 439, 442.
As a result of the applicant being self-represented and undoubtedly suffering financial stress as a result of ceasing work on 23 February 2023, the medical evidence in support of his claim is sparse.
It relevantly consists of a number of medical certificates provided by his treating General Practitioner Dr Ramchander. The first of these was produced on 24 February 2023. It simply states:
Mr Matthew Martin has work related stress and will be unfit for work from 24/02/2023 to 10/03/2023 inclusive.
Certificates to similar effect were produced subsequently. A certificate prepared on 6 March 2023, under ‘comments on mental capacity’, stated:
·Low self-esteem
·Anxious
·Lack of self-worth
·Ruminating
It concluded that, ‘based on the available information’, this was caused by ‘perceived bullying at work’ and ‘work related stress’.[6]
[6] T 188-9.
Certificates in similar terms were produced on 20 March 2023 and following.
On 5 June 2023 Dr Ramchander prepared a further report. It relevantly stated:
Matthew has been managed for work related stress by myself, his psychologist and his psychiatrist.
At this stage, it is felt that Matthew is fit to return to work on a graduated return to work programme.
Dr Ramchander did not give evidence at the hearing and was not made available for cross-examination.
Based on the certificates available and the one medical report, I am not satisfied that the applicant was suffering from any mental condition which was outside the boundaries of normal mental functioning. The applicant was subject to events at work which potentially had implications for his ongoing employment. Critical relationships in the workplace were breaking down and concerns about his performance and behaviour were regularly being raised with him. It would be surprising if he were not stressed, anxious, ruminating and diminished in his self-esteem. The evidence available from Dr Ramchander rises no higher than identifying the emotions experienced by the applicant. Nothing in the documents Dr Ramchander has prepared confirms that the applicant’s reaction is outside the boundaries of normal mental functioning.
This is significant in the context of the reports by the respondent’s independent medical expert, psychiatrist Associate Professor Khalid. Associate Professor Khalid saw the applicant on only one occasion but prepared two reports in relation to him. His second report was prepared after he was given full access to the applicant’s treatment history.
In his first report his key conclusion was as follows:
Mr Martin had pre-existing bipolar disorder and it is not possible to ascertain whether the employment significantly contributed to his diagnosis. It seems that he was still in an elevated state, probably hypomania in October 2022 which may explain his drink driving offence, but he continued working. He only stopped work after the meeting with General Counsel on 22 February 2023. Therefore it is possible that the meeting on 22 February 2023 led to an aggravation of his hypomanic symptoms.
However, when Associate Professor Khalid was given access to a wider range of materials for the purposes of producing a second report on 22 February 2024 he concluded:
…Mr Martin’s bipolar disorder was partially controlled with mood stabiliising medication but he experienced worsening of his symptoms probably under the influence of drugs and alcohol. He experienced a worsening of symptoms in October 2022 when he was convicted of drink driving … his treating psychiatrist Dr Ingrid Butterfield’s report dated 29 August 2023 … noted concerns about him potentially being in a hypomanic state, but in Dr Butterfield’s opinion, his mental state examination had remained largely stable throughout the 18 months or so that she had been seeing him and he was currently at his baseline functioning. Therefore it appears that Mr Martin’s baseline functioning remains in a slightly hypomanic state which gets worsened by drugs and alcohol use.
After reviewing Mr Martin’s treating practitioners’ reports/records, I do not consider that his employment contributed to any aggravation or exacerbation of his pre-existing bipolar disorder (bipolar affective disorder). Therefore, I revise his diagnosis to chronic bipolar disorder currently in remission with some residual hypomanic symptoms with no work-related contribution.
…
Based on the review of Mr Martin’s medical records, especially the psychiatrists’ reports, I consider that there is no work-related aggravation or exacerbation of his pre-existing bipolar disorder condition. I consider that his baseline functioning is in a hypomanic state, as stated by Dr Butterfield, which gets exacerbated by his drug and/or alcohol use.
I do not consider that Mr Martin has suffered any work-related aggravation or exacerbation of his pre-existing bipolar disorder…
In light of this report and the weaknesses I have identified in the opinions expressed in Dr Ramchander’s report and certificates, I am not satisfied that the applicant suffered an ailment as a result of the meeting on 21 February 2023. To the extent that the applicant’s mental functioning was outside the bounds of normal mental functioning at the time, it was a result of his longstanding bipolar condition, which was not contributed to by his employment. To the extent that the applicant suffered a significant stress reaction to the meeting, it was within the boundaries of normal mental functioning.
I am therefore satisfied that the applicant does not meet the requirements for a statutory injury following the meeting of 21 February 2022. I am also satisfied that there is no employment contribution to the applicant’s hypomanic state at any point during 2022. That state is, as Dr Butterfield confirms, the applicant’s ‘baseline functioning’.
Reasonable Administrative Action
Even if I did consider that the applicant’s mental state following the meeting of 21 February 2023 constituted an ailment, I am satisfied that the statutory exclusion concerning reasonable administrative action applies.
A statutory injury does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.[7]
[7] SRC Act, s 5A(1)(c).
For the purposes of the SRC Act, reasonable administrative action 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 employees 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.[8]
[8] SRC Act, s 5A(2).
As the Full Court of the Federal Court emphasised in Commonwealth Bank v Reeve,[9] the exclusion applies to specific administrative action directed to a person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performs in his or her employment. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of ‘injury’, unless the action taken was not reasonable, or was not reasonably taken. Thus, ‘employment’, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
[9] (2012) 199 FCR 463.
I am satisfied that the meeting between the applicant and Mr Parmeter was administrative action directed to the applicant’s employment itself, focussed as it was on how the applicant was to behave in the workplace, rather than any specific task or work that the applicant was to perform.
I am also satisfied that the action taken by Mr Parmeter was reasonable and taken in a reasonable manner. Mr Parmeter had a duty to ensure that the workplace was safe, not just for the applicant but also for Ms Johnson. He had information that indicated that the conduct of the applicant was posing a risk to Ms Johnson’s mental health. He took the very modest step of directing the applicant to cease sending emails to Ms Johnson for the remainder of the day unless they related to ‘his immediate responsibilities’. That direction was ignored. It was appropriate then for Mr Parmeter to approach the applicant and conduct a meeting to ensure that the applicant ceased sending emails to Ms Johnson. I am satisfied that it was reasonable to conduct the meeting without notice and as a one-on-one meeting. I am satisfied that the venue chosen was reasonable as Mr Parmeter’s office at the time had another staff member in it. I am satisfied that he conducted the meeting in a reasonable manner.
Consequently, even if the applicant did suffer an ailment as a consequence of the meeting of 21 February 2023, it would be excluded from the definition of a statutory injury as a result of the reasonable administrative action carve-out.
Mr Bilboe and an alternative theory
The applicant’s psychologist Mr Bilboe did not prepare reports on the cause of the applicant’s bipolar disorder.
He did however, in his oral evidence, raise a theory that work stress prior to October 2022 aggravated the applicant’s bipolar disorder, resulting in the applicant self medicating with alcohol on 7 October 2022.
Mr Bilboe did not prepare any report to support or explain such a theory, and the evidence he gave in the witness box in relation to the theory amounted to little more than speculation. Further, my strong impression of Mr Bilboe was that he was a highly positioned advocate for the applicant rather than a dispassionate expert trying to assist the Tribunal. He failed to take account of the applicant’s long history of relapsing into drug and alcohol use, and asserted a workplace connection without any careful contextualisation of the applicant’s past drug use and alcohol abuse outside of the work context. None of the reports he had previously prepared address the question.
Consequently, Mr Bilboe’s claims are insufficient to persuade me that the applicant suffered an aggravation of his bipolar disorder as a result of work incidents during the course of 2022.
DECISION
The decision under review is affirmed.
I certify that the preceding 99 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Damien O’Donovan.
.................[SGD]......................
Associate
Date of hearing: 1 – 3 July 2023 Applicant:
Solicitor for the Respondent:
Counsel for the Respondent:
Self-represented
Ms Lauren Bishop (HBA Legal)
Mr Brendan Kelly
APPLICANT’S DOCUMENTS
EXHIBIT
DESCRIPTION
PAGINATION
DATE OF DOCUMENT
DATE MADE AN EXHIBIT
A1
Report of Dr Ingrid Butterfield dated 29 August 2023
29 August 2023
1/07/2024
A2
Report of Harold Bilboe (psychologist) dated 30 January 2024
TB 19-20
30 January 2024
2/07/2024
A3
Report of Harold Bilboe (psychologist) dated 2 June 2023
TB 815-816
2 June 2023
2/07/2024
A4
Email from applicant to Jamie Johnson dated 23 January 2023, 10:18AM
23 January 2023
2/07/2024
A5
Email from applicant to Jamie Johnson dated 31 January 2023, 2:21PM
31 January 2023
2/07/2024
A6
Email from applicant to Jamie Johnson dated 20 February 2023, 1:10PM
20 February 2023
2/07/2024
A7
Email from applicant to Jamie Johnson dated 20 February 2023, 9:51AM
20 February 2023
2/07/2024
A8
Email from applicant to Jamie Johnson dated 20 Febuary 2023, 9:04AM
20 February 2023
2/07/2024
A9
Email from applicant to Jamie Johnson dated 20 February 2023, 10:28AM
20 February 2023
2/07/2024
A10
Email from applicant to Jamie Johnson dated 21 February 2023, 2:42PM
21 February 2023
2/07/2024
A11
Email from applicant to Jamie Johnson dated 21 February 2023, 10:32AM
21 February 2023
2/07/2024
A12
Email correspondence between applicant, Nicholas Parmeter and Jamie Johnson dated 21 February 2023, at 2:37PM, 1:27PM and 1:02PM
21 February 2023
2/07/2024
A13
Email correspondence between applicant and Nicholas Parmeter dated 21 February 2023, at 2:37PM and 3:32PM
21 February 2023
2/07/2024
A14
Applicant’s bundle of materials: ‘Castro bundle’, dated 14-21 February 2023
14-21 February 2023
3/07/2024
A15
Applicant’s bundle of materials: ‘Communication allegations’ dated 2 December 2022 – 27 February 2023
2 December 2022 – 27 February 2023
3/07/2024
A16
Applicant’s bundle of materials: ‘Communication allegations’ dated 22 July 2021 – undated
22 July 2021 – undated
3/07/2024
RESPONDENT’S DOCUMENTS
EXHIBIT
DESCRIPTION
PAGINATION
DATE OF DOCUMENT
DATE MADE AN EXHIBIT
R1
Respondent’s Tender Bundle, filed 25/06/2024
Pages 1 – 369
Undated
1/07/2024
R2
Emails from applicant to Abigail McColl: 1 August 2022, 10:10, 13:56 and 16:26; 2 August 2022, 14:54
1
1 – 3 August 2024
2/07/2024
R3
Email from applicant to Chloe Smith, ‘Good morning Chloe’, 7 July 2022 10:53AM
1
7 July 2022
2/07/2024
R4
Teams exchange with Krisha Wildey, ‘I hope you didn’t take my communication … as disrespectful’, 9 February 2022, 4:19PM, 10 February 2022, 8:13AM
1
9, 10 February 2022
2/07/2024
R5
MS Teams exchange between Chloe Smith and applicant dated 19 July 20
19 July 2022
2/07/2024
R6
MS Teams exchange between Chloe Smith and the applicant dated 20 – 25 July 2022
20 – 25 July 2022
2/07/2024
R7
MS Teams exchange between the applicant and Abigail McCall dated 25 August – 5 September 2022
25 August – 5 September 2022
2/07/2024
R8
Email from Krisha Wildey to applicant dated 16 February 2022, 3:08PM
16 February 2022
2/07/2024
R10
Email from applicant to Krisha Wildey dated 16 February 2022, 4:56PM
T 303
16 February 2022
2/07/2024
R11
Email from Krisha Wildey to applicant, 25 February 2022, 1:02PM
T 333
25 February 2022
2/07/2024
R12
Email from Krisha Wildey to applicant, 10 March 2022, 12:53PM
T 353-4
10 March 2022
2/07/2024
R13
Email from Nicholas Parmeter to the applicant, 12 January 2023, 10:53AM
T 149
12 January 2023
2/07/2024
R14
Email from applicant to Nicholas Parmeter, 12 January 2023, 11:28AM
T 148
12 January 2023
2/07/2024
R15
Email from Jamie Johnson to Nicholas Parmeter, 21 February 2023, 1:27PM
T 142
21 February 2023
2/07/2024
R16
Email from applicant to Nicholas Parmeter, 21 February 2023, 3:32PM
T 146
21 February 2023
2/07/2024
R17
Email from applicant to Nicholas Parmeter, 22 February 2023, 8:44AM
T 88-9
22 February 2023
2/07/2024
R18
Email from Nicholas Parmeter to the applicant, 22 February 2023, 10:37AM
T 87-8
22 February 2023
2/07/2024
R19
Email from applicant to Nicholas Parmeter, 22 February 2023, 10:43AM
T 179
22 February 2023
2/07/2024
R20
Email from applicant to Nicholas Parmeter, 22 February 2023, 11:33AM
T 87
22 February 2023
2/07/2024
R21
Email exchange between applicant and Nicholas Parmeter, 22 February 2023
T 86
22 February 2023
2/07/2024
R22
Applicant’s timesheet for 13-27 February 2023
T 108
Undated
2/07/2024
R23
Email from Lisa O’Donnell to applicant, 5 October 2022, 7:01PM
T 574-5
5 October 2022
2/07/2024
R24
Report of Dr Emma Adams
18 July 2023
2/07/2024
R25
Supplementary report of Dr Emma Adams
26 October 2023
2/07/2024
R26
DASS-21 assessment of applicant by Dr Lad
4 August 2020
2/07/2024
R27
DASS-21 assessment of applicant by Dr Lad
3 April 2023
2/07/2024
R28
Email from Lisa O’Donnell to ‘Anna’ (HR) dated 19 October 2022, 12:21AM
19 October 2022
2/07/2024
R29
Email from Lisa O’Donnell to ‘Anna’, dated 8 November 2022, 12:05PM
8 November 2022
2/07/2024
R30
Email from Lisa O’Donnell to Phil Tundulin, dated 28 November 2022, 10:21AM
28 November 2022
2/07/2024
OTHER DOCUMENTS
EXHIBIT
DESCRIPTION
PAGINATION
DATE OF DOCUMENT
DATE MADE AN EXHIBIT
T3
Applicant’s workers’ compensation claim form dated 5 March 2023
T 11-15
13 March 2023
2/07/2024
T9
Applicant’s Comcare claim statement dated 13 March 2023
T 48-60
13 March 2023
2/07/2024
T10
Statement of Nicholas Parmeter dated 20 March 2023
T 70-108
20 March 2023
2/07/2024
Services Australia timeline of events dated various
T 183-6
Various
2/07/2024
Medical certificate of Dr Randhir Ramchander dated 24 February 2023
T 187
24 February 2023
2/07/2024
Certificate of capacity for work of Dr Randhir Ramchander dated 6 March 2023
T 188-9
6 March 2023
2/07/2024
Certificate of capacity for work of Dr Randhir Ramchander dated 20 March 2023
T 190-1
20 March 2023
2/07/2024
T14
Report of Dr Abdul Khalid dated 26 April 2023
T 777-88
26 April 2023
2/07/2024
T15
Certificate of capacity for work of Dr Randhir Ramchander dated 1 May 2023
T 789-90
1 May 2023
2/07/2024
T16
Determination attaching recommendation in respect of the workers’ compensation claim dated 5 May 2023
T 791-814
5 May 2023
2/07/2024
T17
Report of Harold Bilboe dated 2 June 2023
T 815-16
2 June 2023
2/07/2024
T18
Certificate of capacity of Dr Ramchander dated 5 June 2023
T 817-18
5 June 2023
2/07/2024
T19
Report of Dr Randhir Ramchander dated 5 June 2023
T 819
5 June 2023
2/07/2024
T23
Reviewable decision dated 7 July 2023 and recommendation in respect of workers’ compensation claim dated 5 July 2023
T 866-8
5 July 2023, 7 July 2023
2/07/2024
2
0