McEwan and Comcare (Compensation)
[2022] AATA 1586
•10 June 2022
McEwan and Comcare (Compensation) [2022] AATA 1586 (10 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1612
Re:James McEwan
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr I Alexander, Senior Member
Date:10 June 2022
Place:Sydney
The decision under review is affirmed.
.................................[SGD].......................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – anxiety/stress disorder – whether Comcare is liable to pay compensation for psychological injury – whether Applicant suffered a psychological ailment for the purposes of section 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant’s ailment was contributed to, to a significant degree, by his employment with NBN Co – whether the Applicant’s ailment constitutes a disease under section 5B – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Dr I Alexander, Senior Member
10 June 2022
Mr McEwan was employed as a Project Officer NSW/ACT[1] and Project Manager NSW/ACT[2] by NBN Co Ltd (NBN) until he accepted a redundancy as of 28 June 2019.
[1] Appointed on 23 September 2013
[2] Promoted on 26 February 2018
On 17 January 2020 Mr McEwan lodged a worker’s compensation claim for ‘depression caused by systemic bullying that lead me to try suicide’.
Mr McEwan claimed that he first noticed symptoms on ‘17/08/2017 11:00 AM’ and first sought treatment on 30 August 2017. He also claimed that he was ‘subjected to bullying and harassment by several people over 5 years’ and that this led to ‘two suicide attempts and a hospitalised in a mental ward’ [sic]
By determination dated 23 March 2020, Comcare denied liability pursuant to section of the of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis that Mr McEwan’s ‘employment did not significantly contribute’ to his psychological condition.
In a reviewable decision dated 8 February 2021, a Review Officer decided to affirm the 23 March 2020 determination and declined liability for ‘depressive disorder and generalised anxiety disorder’ under section 14 of the SRC Act.
In these proceedings Mr McEwan, who was represented by counsel, seeks review of the reviewable decision dated 8 February 2021.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
A Section 14 of the SRC Act relevantly provides as follows.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
A Section 5A of the SRC Act provides as follows.
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but 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.
(2) For the purposes of subsection (1) and without limiting that subsection, 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 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.
A For the purposes of applying s 5A(1)(a), the definition of the word “disease” is provided by s 5B of the Act in the following terms.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
For the purposes of applying ss 5A, 5B and 14, the following definitions from s 4(1) and (9) of the Act are relevant.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
ISSUES
The first issue is whether, during his employment, Mr McEwan suffered a psychological ‘ailment’ for the purposes of section 5B of the SRC Act.
If so, the second issue is whether Mr McEwan’s ‘ailment‘ was contributed to, to a significant degree, by his employment with NBN and, therefore, a ‘disease’ for the purposes of section 5B of the SRC Act.
MR MCEWAN’S EVIDENCE
Written Statements
In an initial eighteen-page statement, dated 19 February 2020, Mr McEwan amended his date of injury to 24 November 2015 and recorded a very detailed account of various incidents that he alleges occurred during his employment between October 2015 and June 2019. Relevant extracts are noted as follows with emphasis added:
In 2015 Chris Smith hired Craig Malloy as Senior Field Supervisor and dropped him in Newcastle. To begin with I tried to mediating [sic] between him and the delivery partner, mentor and coach him but I was getting nowhere, why had they hired him, he’s got no idea and doesn’t want to learn it. After a month of this, I called Chris Smith and said I can’t do anything with him, has very hard to work with, you need coach him. This was about August, 2015. The situation changed, not for the better, I found out that Chris and Craig wanted to stop my access to the physical work sites,
…Next are two incidents from 2015/2016. It was from these two points; I was fearful my safety at work.
November 24, 2015: I arrived at work around 8:00am to be greeted … by Craig Malloy aggressive and intimidating, to be yelled at ‘give me the key to the new vehicle, we’re taking it back’ and ‘I’ve got the spares from your drawers as well”. I was confronted physically, abused and told that he’d been through my personal stuff. … I spoke to my manager and told him I felt physically sick and that I was going to work from home for a week to get some space … When I arrived back at the new Lambton office, I found that I was the subject of ridicule as Craig had had fun of me at my expense…
May 24 2016: After a prolonged argument about a technical and safety issue … I arranged to met [sic] Craig onsite to have a discussion around his continued aggression towards me … He insulted cyclists randomly which after the prolonged comments around my appearance and smell after riding to work for the last few months, I stood up to him. I explained I couldn’t stand his aggression … Craig’s response was … this is who I am and I’m not going to change … At this point I caught that I had physically started to loose [sic] my shit and we had escalated to just before physical contact … decided instead of hitting him, I’d hug him … I removed myself from the situation, called my manager to advise him of the physical contact and went and worked from home. From that day, I awoke every day scared to go to work … I mean when in the office, I had to sit 1.2 m away from him for hours a day and on really intense days, I could hear his breathing. This was enough to have me on edge all day.
Early in 2017 … I got a new Deployment Manager, Steven Hasselbach, a different style to my last manager who liked a lot more detail …
August 2017: Greg Thornton became GM and the relationship between my two managers became apparent. Greg did not like Steven and barely hid the contempt he felt towards him. As an isolated worker, I didn’t need my managers above me not aligned as the games that that they played killed me …
January 2018: after months of discussions … I was given the chance to act up to PM[3] and became permanent. The program I inherited was a disaster … I was going into this under resourced and it seemed that this was intentional by Greg … This was a disgrace … it appeared that I had been thrown under the bus due to personality conflict that Greg had not been able to resolve … Two weeks after this date, my mother passed away. This was a mixed blessing as she had Alzheimer’s … from NBN I got nothing, for some reason, no one was advised that I was on bereavement leave leading to people hunting me down and harassing me … I was even called on the morning of her funeral … During this time, it seemed my personal life was being used as an excuse to exclude me from things …
June 2018: I called Greg Thornton … at the end of the program, he congratulated himself on the numbers and advised me he had decided to bring forward the 2018/2019 program. To which I suggested he may be delirious considering what had to be done to get the numbers for 17/18 … I was told that I was too close to delivery and had no resilience … I hung up, and thought about driving straight into a tree. That was it, I gave up.
Within the next week, I had been pulled off my program and dumped in Aerial. I was sold this is a great move, but within the first week it became apparent this was payback for challenging Greg … From this point I was a dead man walking and with it my mood, grip on reality was gone … I was moved sideways and demoted and refused any leave for 4 months despite management knowing I was emotionally exhausted. … I was informed … that I was being made redundant and that there was no future. … It seems, as I called out major concerns with Greg’s plan as per my duty as a project Manager, he had decided to manage me out to have his own reputation, by isolating and degrading me. …
In October 2018, I started planning suicide … firstly, particularly after being reminded ‘how was my mate Malloy’ by Chris Smith every time I saw him at Pennant Hills, firstly by contemplating jumping in front of the fast train to Brisbane ... This incident was reported to NBN via Steven Hasslebach and I was talked out of reporting it in iSafe, NBN HSE database due to fear of the repercussions on Steve from Greg. On November 24, 2018, after a month of planning how and when, I was stopped for taking the next step on my life by police officers from Newcastle LAC called to our family home and was sectioned for my own protection in Mater Mental Health Unit in Newcastle.
On 17 January 2019, I approached NBN to see what could be done to resolve the bullying and was immediately shut down. HR demanded access to medical records … Donna Carrol from HSE stepped in then disappeared as Greg Thornton, didn’t want this dealt with as per process, and bullied my manager … For many weeks I tried to ascertain what was the process NBN had for dealing with this and was refused a copy of the process or even have anything mediated. This was directed by Greg Thornton … So I hung on, looked after myself … developed a plan with my Psychologist to survive until the end … Despite my mental condition, I was begged to take on the full program load to help out Imitaz … I was told by Steven Hasselbach that Greg had kicked out HR and HSE from my complaint and direct Steve to lead and resolve this issue … At this point I could see I was being scapegoated due to issues that should have been resolved earlier, stigmatised because of my mental health and bullied at every turn by the GM.
For four years I was afraid to go to work out of physical fear of abuse! And did this stay confined to the boundaries of my work, no it spread its insidious fingers into every facet of my life, both awake and asleep. It affected my relationships with my partner and children, estranged me from extended family. Isolated me from old friends and stopped me making new ones in the town I moved to.[emphasis added]
[3] Program Manager
As part of the statement Mr McEwan provided a running sheet of about 220 daily ‘incidents’ between October 2015 and June 2019. Included were about 95 days on which Mr Malloy is alleged to have made an insulting comment to the effect that Mr McEwan did “smell like a wet dog’, or have a ‘look what the cat dragged in’ like appearance.
In a further 18- page statement, dated 26 July 2020, Mr McEwan essentially covered the same issues that been raised in his earlier statement but with additional details, in particular, his own recollection of specific conversations.
The tenor of the statement appeared to be largely directed at criticism of the Messrs Smith, Malloy and Thornton in respect of their alleged behaviour and competence when compared with Mr McEwan’s own claimed superior experience and expertise. Relevant extracts are as follows with emphasis added:
In 2014 my partner and my 2 children moved from Sydney to Newcastle… At the time I reported to David Minney, the Development Manager. The Field Services Manager for NSW was Chris Smith… I got on well with David Minney, we had a good working relationship.
I had known Chris Smith since 2012 when I was a telecommunications technician. From working with him at the time he did not have the same depth of technical knowledge, experience and expertise in some areas of our technical operations as me and this often led to conflict between the two of us. I believe he didn’t have the commercial experience and a proper understanding of how to work and organise efficiently and to effectively deliver the projects within the delivery time frame. This also led to conflict between the two of us. …
Chris Smith also was in regular conflict with my boss David Minney … Technical issues always arose regularly on projects. These had to be resolved in a timely fashion … by Field Services for which Chris Smith was responsible. More often than not these technical issues were not resolved until the delivery date was looming. This caused me increased and enormous levels of stress …
In January 2015 Chris Smith hired Craig Malloy as Senior Field Supervisor and dropped him in Newcastle. Craig Malloy was known to me and others and were aware that he lacked direct construction experience and didn’t know much about the NBN. Some of my colleagues expressed concern about his suitability for the role. For the first four weeks Craig Malloy didn’t leave the office … I rang Chris Smith and expressed my concern and it was agreed that I would attempt to “train him up”.
I did not see it as my role to train a Senior Field services Supervisor … He had a leadership role; he should have been proficient in his role, but he wasn’t and the stress that was placed on me was expedient over the next 5 years. Carrying this man through delivery … then to watch him claim credit and isolate me due to his inadequacies and the inability of his manager to manage or lead him was the start of my decline. …
Craig Malloy had no experience in optical fibre testing. He didn’t understand a lot of the technology … To compound that lack of experience from my observations of his interactions with others it seemed to me that he had poor communication/relationship skills particularly when it came to communicating with our contractors. The contractors would come to me to complain … This placed even further pressure and stress on me in trying to meet delivery schedules. … Craig Malloy’s shortcoming in technical knowledge and experience made it difficult for him to understand the tasks … He took a black and white approach … I reigned myself to the fact that I was stuck with Craig Malloy and had to somehow try to work with him … after several months I felt that Craig Malloy was resenting the constant coaching from me and actually pulled me aside in the field and said: “this is my area and I’m not going to stand for your interference in Field Services issues anymore’. … I can’t remember the date of the conversation … but being “shirt fronted” was uncomfortable, it was demeaning an unnecessary. I mean I had been asked to help, …
In April 2016, Downers electrician developed several methods to get around driving earthing stakes into the ground … Both these methods, while not mentioned in the NBN standards, were both legitimate methods under AS3000, the Australian Standards for Electrical Installations. I agreed as the Project Officer that these were suitable … I agreed to their use … Craig Malloy and Chris Smith defected the installations as not being to NBN standard. This developed into a massive roadblock to 2016 delivery … I supported this method however Craig did not … Craig Malloy raised the issue with me directly after he had been to site to see an installation … he stormed back into the office, came directly to my desk raging and yelled: “what are you and you’re [sic] dodgy mates from Downer up to?” … At the end of the encounter I called Mr Minney … I said, “I just had a run in with craig about the earths, he’s still not convinced”. … I related the outcome of the conversation … He said, “he’s a … idiot really’ … I sent an email … I explained the issues … Craig Malloy, still not happy, … refused to agree …
By the 24th May 2016 I was feeling angry, anxious and frustrated. It had been a prolonged technical argument with Craig Malloy for about 6 weeks. … I arranged a meeting with Craig on site … When I first met him he started to talk about cyclists of all things. He said:
“Why do we do it … Ride a bike … What’s the point, you’re just scum, you hold up traffic, you could hurt yourselves, get run over and what about the driver that hits you, you would ruin their … life”
His comment increased my anger, anxiety and frustration to the point where I was shaking. … I said to him:
“What are you … on about really- dickheads like you run cyclists of the road and drive off … I mean your held up for a second or two, is really this time that f..king precious you can’t allow someone to be safe and get home?”
He said, “ No dickhead I can’t – you don’t pay rego, or have a licence so why should you be on the road? You cyclists are a … danger
By this stage I was in an uncontrollable rage. I said,
“what the … your problem? You find faults everywhere with everyone and then don’t assist, you’re not a team player and have a significant bias towards me and by extension Downer, your lack of support to achieve corporate objectives is … disappointing and that while I wasn’t without blame in this conflict, if you don’t change it’s not going to get any better”.
He said, …This is who I am and I’m going to change. Back luck, you’ll need to change or accept it’ [sic]
To be honest at that point I was ready to hit him. Having said that I just hugged him instead … I then walked back to the NBN vehicle I had borrowed to drive … made a phone call to David Minney, my manager, and told him about the conflict … I decided home was safe and I went and worked from Home and stayed there for a week. …
In early 2017, Steven Hasselbach was appointed as my manager. … He had good qualifications and experience but coming from a military background attempted to be a micromanager … By August 2017, Greg Thornton became appointed as a General Manager. It became apparent that Greg Thornton and Steve Hasselbach were not going to get on. … They didn’t work as a team … The lack of communication and co-operation between Greg and Steven made my life a nightmare. …
In January 2018 … I was asked by Steven Hasselbach to accept acting as a senior project manager … The decision was in practice disastrous for me. In my ordinary role I had responsibility for 21 areas. In the acting position I then had 135 areas including the 21 that I was already responsible for. … I’d had a distinct feeling that I had been thrown under a bus however I adopted the attitude that it’s a challenge and I persevered.
Several weeks later my mother passed away … I took 2 weeks bereavement leave … the phone didn’t stop ringing … I found this particularly distressing at the time … When I came back I found that Imtiaz, my co-project manager, had stepped into my role and … moved himself in between me and the project’s support staff … I found this distressing as I was excluded from meetings … he ended up wasting more time and more money and creating problems I had to relive months later …
On 29th June I called Greg Thornton, the general manager … I wanted to discuss working out a plan of action as there were 80 to 90 programs involving some 300 customers to be connected to the NBN. … At the time I was an emotional wreck and stressed to the maximum. I wanted to discuss my concerns well however when Greg answered the phone-
he said, James we got the numbers … for the year. Woohoo I had my balls on the table there.
I said,: ‘That’s good because it was a … nightmare and I’m f…ked … that was a nightmare and we’ve got to do it differently next year”.
He said: What do you mean?
I said, … it is not finished and we will be still catching up with delivery in September and I am being micromanaged by National PMs who have no … idea how to build this network … If I hear the term forecast for success one more … time, I’ll kill the prick … it would be fine to do this however the designs are complete crap, I know you’ve told me that I’m wrong about this but I’ve seen a 400% variation in most of the construction, whoever agreed to these designs who has no idea …
He said, James you’re too close to delivery, you don’t do the strategy and can’t see the big picture …
I said, Huh what the …? Didn’t you just hear. The designs you’ve based that decision on are not ready and won’t be this year. They’re the last lot we’ve been avoiding for years, all the hard ones. There is no way you can commit to that, it’s insane. It will kill people.
He said, James you’re wrong and you need to develop some resilience – the designs are fine and are designed for the house …
I said, Pardon? Resilience? I’ve used up a lot of that resource saving your balls and you have the … hide to suggest that I somehow need more – get your … own.
Within the next week I was removed from the program I was supervising … and asked to accept a secondment to Aerial … there was no paperwork generated by HR in relation to the secondment. All I received was an email confirmation … I felt the move was a sideways if not backwards movement, moving me to basic design work … When I started at Aerial I found it was less resourced than the projects that I had previously been working on. I also found that the work had not been properly managed. I felt that I had again been thrown under the bus. My evaluation led me to believe that many of the designs were not suitable for the project … I expressed my concerns to Greg Thornton. He rejected my concerns … I had no alternative other than to push on as directed …
By July 2018 I was becoming concerned that I had not seen any paperwork form regarding the secondment … I then raised the issue with … the NSW design manager who reports directly to the general manager … who said to me, “An Aerial designer is going on annual leave and you’re going to perform his duties for several weeks’’… I still continued to perform the management role at Aerial. This was additional work which increased my stress level…
By October 2018, I was stressed, tired, angry, frustrated anxious and depressed. I was not sleeping at night, and I was at my lowest point … Then I had a conversation with Steven Hasselbach. The conversation centred around what his expectations of me were with the Aerial program … I said “The 3 of you have 3 different idea objectives and they were all refusing to listen … I’ve had it. I’ve come down here twice a week and Amir (the design resource) is never here therefore I have to either do it myself or wait until the response” … I was shaking and close to breaking down and extremely stressed. I walked out of the meeting … grabbed my stuff, walked out the door and left.
On 10 October 2018 I arrived at the Hornsby railway station … I felt very detached and numb. I seemed to lose my connection with reality. I received a text message from Steven Hasselbach checking on my condition. I didn’t respond … The Brisbane XPT was coming … I thought that perhaps that was how I could end it … at that time my mobile phone buzzed and there was a message from my partner with news about our house purchase. This message interrupted my thoughts of suicide … I then got on the train and responded to Steven Hasselbach. I texted:
No I’m not ok and that I was contemplating suicide a the train station just then
He said, are you ok?
I said, No Steve, I’m on a train, a couple hours from home shaking, I have contacted Hermione (my partner) and she’s waiting for me at home. And NBN doesn’t give a …
He said, No James, you’re wrong I care.
I said, Really, look I’m not good at the moment, but I was letting you know so it can go to iSafe (accident notification system)
He said, Do you want to do that? Think about it, do you want Bevan Jarrs investigating this. And what would Greg do? I don’t think we need to advise them, do you
I said, Fine, whatever, I’ll talk later.
On 24 November 24, 2018 I was informed by Greg that I had been unsuccessful in a job application. I applied for the business operations manager’s job hoping that if I succeeded in getting that job, it would be less stressful than the work that I was currently doing … I was informed that as a junior project manager I was not suitable for filling the role …
On 24 November I attended social drinks at the New Lambton office with the operational guys … Whilst I was at the drinks I got a phone call to inform me that a childhood friend in Wollongong had died the night before. It upset me greatly … I left the party and went home. When I got home I got into an argument with my partner. She stormed out and went to a friend’s place but left the children with me … Out of fear from me, she rang the police. Four uniformed officers showed up at my house. I spent some time talking to them. After a while I agreed to go to the hospital … I think they saved my life …
At the Mater I underwent observation and treatment. I was there for some 3 days … Following my discharge from hospital I took 2 weeks sick leave. I rang NBN and told them what happened and I suggested that work contributed to my condition. At the time I had some 4 weeks annual leave pre booked and thought that would give me a bit of a break. I consulted my GP and also underwent further counselling with Melissa. The GP increased my antidepressant medication. We discussed strategies to deal with my circumstances.
On 14 January 2019 I returned to work feeling a bit better. I was more focussed but I was still feeling anxious.
On 17 January 2019 Imitaz Ali, the other project manager with equal status to me, sent me an email which I considered to be inflammatory … It made me extremely angry because it appeared to me that he was trying to assert himself over me and directing me when he was in no position of authority to do that. … I responded to his email telling him it was not his place to tell me what to do. I may have used some language and I think I may have become rude … I got a phone call from Steven Hasselbach, he told me to calm down. I said to him “I had with this, we need to go to HR. I’m burnt out. If I respond like this, I need help”.
After my secondment to Aerial things began to fall behind and Imitaz … appeared not to be able to cope. I was asked to help out … so after just 3 months following my attempted suicide, on 29 January I was to take on a full program … I set some conditions on my return to the full program … which were to be met as my ‘return to work plan’ but … the whole thing fell over and it was left for me to fend for myself. I was too tired, stressed and unwell to argue. Steven told me that the general manager had left it to him to resolve my health issue …
In June 2019 … I got a phone call … that I was going to be made redundant. The next day, 6th June 2019, I was handed a letter to say I was redundant, that my services were no longer needed due to operational reasons and that my last date of service was the 31st August 2020. I rang HR to enquire about the complaint that I had made about bullying and harassment and the legality of being made redundant without my complaint being resolved. I was told by HR that it had “knowledge’ of my complaint. I wasn’t happy about having to work under the existing circumstances until the 31st August 2020. As a consequence, I renegotiated with NBN to finish on the 28 June 2019.
In a supplementary statement dated 30 June 2021 Mr McEwan stated that, during his employment he kept diaries and made daily entries.
The Tribunal was initially provided with copies of 24 diary pages from 2015 to 2019. The pages had significant redactions and in response to a direction from the Tribunal an unredacted version was subsequently provided. The quality of the copies was generally poor, and some entries were illegible.
In his Statement, Mr McEwan selected specific diary entries and provided a significantly expanded retrospective but unrecorded narrative in support of his allegations.
I do not intend to record the details in Mr McEwan’s statement, as much of the material has already been covered in his earlier statements. However, I believe it is useful to note the limited recorded detail in the actual diary entries as follows:
24 November 2015: New vehicle has been taken away for field services. F…K them.
5 April 2016: Been put in place by Chris Smith during meeting with Downer. Exact words were that I am just to do PMO stuff. I find his attitude condescending and this … is bordering in bullying[4]
[4] In his statement Mr McEwan noted that Mr Smith said ‘You should focus on Project management activities rather than technical issues and leave the technical issues to Field services …”
21 May 2016: … interesting rumours about NBN leaks allegedly it was Roger and Daniel if +v that has killed their careers…
24 May 2016: Craig and I had words about cyclists and drivers. He made inappropriate comments and demeaned me … Chris Smith – Refusing to accept “strip earth” exemption emailed asking for explanation They are not helping
2 June 2016: not feeling well today mentally
18 July 2016: advised by … that Craig Molloy has implied that I am on the “take” form Downer…
11 September 2016: Conversation with Craig … about his attitude confrontational asked this to … [illegible]
6 September 2016: Funny how low I feel How I’m really depressed
2 November 2016: Words with Mark – apparently he believes that I am behind and can’t do my job … therefore my days here are numbered
2017: no entries provided
23 July 2018: illegible entry
7 October 2018: illegible entry
12 October 2018: illegible entry
16 November 2018: Its just a Job Doctors fatigue stress Contracts exchanged
19 January 2019: Sent results of Burnout Assessment to Steve. request HR contact
24 January 2019: Apparently GT doesn’t want HR involved in dispute and wants Steve to lead this …this has me very worried The appearance is that their protecting themselves and Imtiaz
20 March 2019: Steve off … 26/3 – 29/3
9 April 2019: sick f…g sick Hermione Very Sick
10 April 2019: GT on warpath
11 April 2019: Doctors Cardiologist Bloods
8 May 2019: Spoke to GT to try and help … illegible
11 May 2019: ? Died Woke up thinking about work shaking hands badly
In an email to Steven Hasselbach, dated 12 December 2018, Mr McEwan stated as follows:
Attached is a medical certificate from Hospital covering the absence recently, I’ll send a redacted copy of the discharge report which shows that the extended stress and pressure of work contributed to the episode and that I’m suffering burn out[5]. [emphasis added]
Not a fight but heads up that once my psych and I identify all the stressors, I’ll be back with a plan on how I need to manage these, and this may affect what NBN can expect from me.
[5] It is not clear what was redacted from the discharge report – see p 19 of the T-Documents for an extract of the Hospital discharge report
Oral evidence
Apart from confirming the truthfulness of his three written statements, Mr McEwan did not add any additional evidence in chief. However, he did state that he was not responsible for the redactions in the pages of his diary that had been annexed to his supplementary statement of 30 June 2021.
Cross Examination
In response to questions from counsel Mr McEwan confirmed his claim that he was injured because he was subjected to bulling by several people over five years and that this “led to two suicide attempts and being hospitalised in a mental ward.” Mr McEwan firmly denied that anything else in his personal life had contributed to his hospital admission.
When asked why, in his claim form, he had noted 17 August 2017 at 11am as time he had first noticed symptoms Mr McEwan said that he was ‘not sure’ about the significance of that date.
When asked why, in his initial written statement, he had nominated 24 November 2015 as the date of injury, Mr McEwan explained that it was because an incident in which he was ‘aggressively’ confronted by Mr Molloy over a set of car keys. He said that he left work on that day decided to work from home for a couple of weeks ‘so I didn't have to put up with Mr Molloy's ridicule in the office’.
When asked about his claim, that following an incident at work on 24 May 2016 he ‘woke every day scared to go to work’ Mr McEwan agreed that he was ‘suffering fairly severe mental health issues[6]’.
[6] The Tribunal has not been provided with any corroborating medical records for 2016. Mr McEwan’s leave records reveal only one day of personal leave on 28 September during 2016.
Mr McEwan confirmed that in October 2018 he was ‘consciously planning suicide’. When asked by counsel to consider the history that had been recorded by Dr Lee, in his report of 3 March 2020, where there is no reference to claimed significant incidents in November 2015 and June 2018, Mr McEwan became defensive and said ‘We had different recollections of what history he took’.
When asked why he told Dr Saker, as recorded in his report of 10 December 2020, that ‘He planned to kill himself in November 2018. He paddled his kayak into the harbour drunk’, Mr McEwan, again, became defensive and said that this was his intended ‘suicide plan’ but his wife’s intervention stopped him.
When asked by counsel why, in January 2017 when he was seen by Dr Sarin, he did not mention that, during 2016, he was ‘so mentally ill’ that he was ‘scared to go to work’ Mr McEwan said ‘because I didn’t go to work, I worked from home … I don’t think I did say I was scared to go to work, I was extremely stressed at work’.
On further questioning, Mr McEwan indicated that, on 4 April 2017, he told Dr Sarin that his work situation ‘is so bad’ that he was ‘scared to go to work’. When asked why Dr Sarin did not record this in the consultation notes Mr McEwan said ‘in 2017 I worked, essentially from home or Tamworth where my deployment was’ and that he only occasionally went into the office. He indicated that although he didn’t need to go to the office he also wanted ‘to get away from Molloy’.[7]
[7] McEwan’s attachment to his initial report indicates that, during 2017, he visited the New Lambton Office at least 24 times
When Mr McEwan was asked about the personal or other stressors recorded in the various medical documents before the Tribunal, Mr McEwan responded in a somewhat dismissive manner and said, ‘they’re not significant stressors, they’re just – they’re part of my life’.
When asked why Dr Claire’s consultation notes, dated of 7 June 2017, make no reference to ‘any work issues or having fear about going to work’ Mr McEwan said ‘I have no idea … I don’t know’ and denied that personal stressors, as recorded, were significant.
When asked why Dr Claire’s consultation notes, dated of 29 August 2017, make no reference to ‘any work issues’, Mr McEwan said ‘my biggest fear, at that time, was my partner leaving with my family … my main concern and fear was losing my partner’. He agreed that this was a significant personal stressor.
When it was put to Mr McEwan that he was seeing a psychologist, and he is asking the Tribunal to believe that his mental health by this stage ‘was in a pretty diabolical state on account of work issues’ but there was ‘no record of pervasive work caused stressor in the consultation notes’, he said ‘I can’t explain it’.
When asked about why the police report and hospital records referred mainly to personal psychosocial pressures and not his claims of work stress and bullying, Mr McEwan’s responses could best be described as dismissive and unconvincing.
Mr McEwan stated that ‘If I had been truthful about the suicide, about the bullying and the allegations, I wouldn't have been let out of the mental health ward. That's what I believed’.
When asked about Dr Younis’ consultation note on 9 January 2020, where it is recorded that ‘gives four‑year history of stress, depression and mental health issue, thinks is due to work bullying’, Mr McEwan conceded that this was the first time that there had been any mention of ‘bullying in the workplace’ in the notes of medical professionals.
STATEMENT OF HERMIONE CONNON
In a statement dated 3 June 2012 Ms Connon[8] confirmed that she had been Mr McEwan’s de facto partner since 2005 and that they have two children with ‘ASD level 2 [9]and ADHD[10]’
[8] Mr McEwan’s partner
[9] Autism Spectrum Disorder. Autism Spectrum Disorder (ASD)- Individuals with ASD Level 2 will be automatically qualified to receive support from the NDIS.
[10] Attention Deficit Hyperactivity Disorder.
Ms Connon stated that Mr McEwan worked long hours for NBN and that the management of the children was mainly her responsibility. She stated that in 2018/2019 she noticed that he became increasingly anxious about work and that ‘week after week’ he would work from home. She also noted that she would overhear his telephone calls and ‘could see that he was anxious and stressed’ and on occasions would sound ‘very angry’.
Oral Evidence
In her evidence in chief Ms Connon stated that ‘James and I separated on 28 December 2021’.
In cross examination, Ms Connon confirmed that the conversation, as recorded by Dr Stanhope, on the 25 November 2018, was accurate. She also confirmed that, as noted in her statement, it was only in 2018/2019 that Mr McEwan became anxious about work.
NBN’S EVIDENCE
Employer Statement
In response to Mr McEwan’s claim that, on 17 August 2017 he had suffered an injury described as ‘Depression caused by systemic bullying’, the General Manager of Employee relations provided an Employer Statement dated 14 February 2020.
Relevant extracts are as follows:
As at the date of this Employer Response, Mr McEwan has not filed his own statement in support of his claim … NBN considers there is no basis for acceptance of Mr McEwan’s claim…
During his employment, NBN was provided limited detail by Mr McEwan about his mental health … save for the following occasion where he provided information to NBN
12 December 2018 … a medical certificate … which confirmed he had been an impatient from 24-27 November 2018
15 January 2019 … email including an image … referred to as ‘results of a burn- out self- assessment conducted in January 2019
8 January 2019 … a “redacted discharge report’” issued in relation to his stay at the hospital for mental health related issues …
Mr McEwan was counselled by NBN’s Employee Relations and /or Human Resources team In relation to his concerns about how NBN was handling his return to work in January 2019 after his absence, about his interpersonal conflicts with other individuals.
From late 2018, NBN commenced a process of reviewing its operational requirements in Network Deployment, in anticipation of the completion of the network build in June 2020, which would see a number of roles being redundant …
In November 2018, NBN held informal conversations with Mr McEwan about the potential for redundancy of his role in 2019. …
On 6 June 2019, NBN met with Mr McEwan to inform him that following a review of Network Deployment NSW’s Business operations, his position was no longer required and he would become redundant on 31 July 2019. … NBN offered Mr McEwan support including to explore suitable alternative employment with NBN. During that meeting, Mr McEwan displayed aggressive and angry behaviour …
A search of NBN’s systems have not located any formal grievance lodged by Mr McEwan in relation to any issues raised or individuals named in the Timeline
In some email correspondence or verbal conversations with SM (Leader Support Specialist) and /or MD (HR Business Partner, Mr McEwan made comments about other employees who he had interpersonal issues with, however, Mr McEwan did not raise any formal grievance with NBN in relation to those matters.
… issues between Mr Ali and Mr McEwan are … NBN denies Mr McEwan’s comments in the TimeLine regarding his interactions with MrAli. On 15 January 2019, Mr Ali submitted a written complaint to MD and Mr Hasselbach which was …about Mr McEwan’s constant criticism of him since Mr McEwan had been appointed to the Project Manager role in February 2018, and the pressure he felt having to take on much of Mr McEwan’s workload as a result of Mr McEwan’s absence and capacity during 2018. ... Mr Ali also described a disagreement he had with Mr McEwan about a work matter and sought assistance from MD and Mr Hasselbach about how to work with Mr McEwan and to manage his workload. As a result of his treatment by Mr McEwan, on his doctor’s recommendation, Mr Ali took two weeks off and then returned to work on a part- time basis for up to three months … Mr Hassebach liaised with NBN HR … to facilitate the ongoing working relationship … which was implemented following Mr Al’s return to work with positive effect. [emphasis added]
Project Fluro
2 October 2019 – email to Mr McEwan:
Hi James Thanks for your further email which I will pass on to Employee Relations Given that this is a difficult time for you, NBN would like to extend the offer of a further 6 sessions with its Employee Assistance Provider …
3 October 2019: ER[11] arranged for an Employee Relations Consultant to conduct a preliminary review of a number of matters raised by Mr McEwan in various emails sent to NBN after he had ended his employment. The scope of the enquiries was limited to locating documents and discussions with the HRBPs[12] relevant to Mr McEwan in respect of ‘medical issues, complaints /grievances, informal complaints, redundancy, i-Safe reports and formal or informal complaints /grievances raised by JM to Greg Thornton about construction and /or technical issues’.
[11] Employee Relations
[12] Human Resource Business Partners
In a report dated 31 October 2019 the consultant provided a comprehensive factual record in respect of the various issues raised by Mr McEwan.
I don’t intend to address the report in any detail, however, findings of the report do confirm that ‘No formal complaints by JM or about Imtiaz Ali or Craig Molloy were brought to ER’s attention’ and that ‘No reports, in either i-Safe or Pivot’ were recorded by or on behalf of Mr McEwan in relation to the complaint he refers to in his emails.
Also, the findings confirm that ‘Enquiries do not indicate JM raised any concerns with Greg about construction or technical issues relating to his role’.
1 November 2019 – email to Mr McEwan:
Dear James Thank you for your emails of 19 July,30 September, 1 October, 10 October, 12 October, 23 October, and 28 October 2019
NBN has conducted a preliminary review into the matters of concern you set out in those various emails. This included reviewing relevant emails and other documents and speaking to various members of NBN’s HR and HSE teams about the matters you have raised.
Following these enquiries, NBN is satisfied the matters you have raised do not indicate any misconduct or breach of policy by any NBN employee warranting further investigation. As such NBN will not be corresponding further on these matters
As NBN understands that this has been a difficult time for you, it encourages you to keep utilising the Employment Assistance Program which NBN extended to you.
STATEMENT OF CRAIG MOLLOY
In a statement dated 13 July 2021 Mr Molloy stated, inter alia, as follows with emphasis added:
I was previously employed by NBN Co from 31 March 2015 to 9th September 2020. I initially worked as Senior Supervisor until 22nd March 2020 … I eventually left via redundancy. James McEwan and I both worked out of the Newcastle office at New Lambton between 2015-2019.
James and I worked in different groups but on the same projects. As supervisor Field Services I was responsible for construction of infrastructure and making sure what was built and delivered by the Delivery Partners was as per the design and specifications.
My supervisor Chris Smith had told me that James in particular was not to turn up to work sites without consulting me and was not to make decisions relating to construction issues as those decisions lay with me and my team.
James had a background in electrical engineering, and I believe he looked down on us in the Field Services team. I had previously worked for Telstra for 17 years and had experience in this area. I originally applied for Field Services Supervisor but was encouraged by Chris Smith to apply for the Senior Field Services role as he believed I had the expertise and experience to fulfill the role. I reject the suggestion that James was asked to “train me up”.
I recall there was one occasion when I had inspected some work performed by Downer a Delivery Partner and I was not happy with it as it had not been built to standard. I directed that it be pulled out and redone. James tried to interfere and argued against this. I think he was worried about the deadlines not being met but I was concerned about the work not being done properly. I recall we had a heated exchange about this, and I told him that he wasn’t to interfere on construction matters. I am six foot two and it is possible James may have felt intimidated during the verbal argument. However, I had to make it clear to James that his interfering in matters that were not his responsibility was not appropriate and was undermining my role. This was the only heat exchange between us that I can recall. [sic]
James would sometime ride his pushbike into the office and would arrive in his cycle gear. Instead of showering and changing into his work uniform he would often walk around the office with no shoes on and in his cycling gear for a couple of hours. He appeared sweaty and smelt of body odour. I felt his appearance was disrespectful to the rest of us in the office and he should have a shower and get dressed as soon as he arrived at work. I recall mentioning this to James on a number of occasions, but he appeared reluctant to change his behaviour. I also recall times when he would put his feet up on the desk during meetings which I also considered inappropriate. The office of New Lambton had about 15-16 staff. We often engaged in office banter. Although I don’t recall using the words “look what the cat dragged” in relation too James, it is possible giving his appearance that I used these words. James never indicated that he resented me using this language and I was unaware until now that he had a problem with it.
I also understand that James says I took car keys from his desk drawer in November 2015.I don’t recall this at all but suspect that I may have been asked to retrieve the keys by my supervisor so that the car could be allocated to another member of the team. Vehicles were Tools of Trade vehicles allocated to field staff. James position did not include use of any NBN vehicles, I believe. He was reimbursed for use of his private vehicle if used on company business.
Although we were not friends at work, I am surprised that James has brought up these issues now in connection with his workers compensation claim.
I did not observe any changed in James’s behaviour or performance at work with NBN. He appeared to be doing a good job and was a little surprised when I heard he was made redundant.
Oral evidence
Evidence in Chief
Mr Molloy confirmed that he was employed by NBN as a Senior Supervisor Field Services between March 2016 and March 2020. He explained that, during that time he worked with Mr McEwan on the same projects, but they were not on the same team.
Mr Molloy said that Mr McEwan, who was part of the Project Management Team ‘didn’t have any influence over my work or my team’s work at any stage’.
Mr Molloy explained that he reported to Chris Smith as his ‘one-boss’ and that Greg Thornton was an ‘upper-level manager’ who came out on a couple of site visits and but was not directly involved in any of the work of his team.
When asked by counsel what he meant, when he wrote in his statement that ‘James would often get involved in matters that were not part of his responsibility,’ Mr Molloy explained that on occasions Mr McEwan would come out and direct his staff to do something and ‘Well my staff were instructed that they would take direction only from me, because, because eventually I was the one responsible for the build’.
When Mr Molloy was asked about his recollection of a ‘heated exchange’ with Mr McEwan he said that he remembered the incident but could not recall the date. He explained that, ‘the delivery partners had built a bit of new infrastructure in the incorrect position … and I wanted it moved… so James and I met on site and discussed whose responsibility it was … I said “We won’t approve it. It’s got to be moved and that’s that.” And voices got raised. We sort of stood and argued for with one another for a while, and eventually the matter was resolved because the downer went back, and they moved the node to where it was supposed to be’.
When asked to describe his relationship with Mr McEwan, Mr Molloy stated, inter alia, as follows:
We worked out of the same office, we worked on the same project, but we didn’t have a direct working relationship with each other. We sat about two metres apart and we had just general office conversations, general day to day conversations. I don’t remember having any more heated exchanges with him. Like, we might have traded barbs, you know, what we thought were funny comments or insults at the time.
When asked how often he would be in at the office Mr Molloy said that from 2015 to 2017 he was out on the worksite most of the time and would visit the office ‘a couple of times a week for minimum periods, because there was nothing I could do in the office.’ He added that on the occasions he would go into the office Mr McEwan was there ‘probably 99% of the time’.
When asked about Mr McEwan riding his pushbike into the office and remaining in his cycling gear, Mr Molloy stated, inter alia, as follows:
I recall mentioning to James on a number of occasions … he’d ride his bike into work and, depending on how far he’d ridden that morning, when he came into work he’d come in his civilian clothes … we only sat a metre or so apart, and on the odd occasion I might have said ‘Are you going to have a shower any time today?’, or something like that. But exactly what I said? This is back six, seven years ago … I think he probably just ignored me … We didn’t argue about it or anything like that. He never came back and said,’ why don’t you mind you own business’, or something like that.
When asked about the car key incident Mr Molloy stated, inter alia, as follows:
I recall … a time when I was asked to retrieve some car keys, because the vehicles were tool of trade vehicles, which were supplied to field services members to carry out their duties each day out on worksites. I was instructed … by Chris Smith. I wouldn’t have taken the keys off anyone without instruction from someone above … If Chris Smith had have asked me to retrieve keys from James because he was using a vehicle, that’s what I would have done.
Mr Molloy refuted Mr McEwan’s allegation that, when getting the keys, Mr Molloy had confronted him physically, abused him and told him that he ‘had been through this personal stuff’.
In response to a question from the Tribunal Mr Molloy stated that all of the available vehicles were tool of trade vehicles that were issued to his team, and that he was not aware of any other vehicles available to the project team.
When asked about the comment in his statement that he had not observed any changes in Mr McEwan’s behaviour or performance at work, Mr Molloy stated, inter alia, as follows:
Honestly, James’s work performance wasn’t a highlight of my day … whether he was doing the job correctly or incorrectly, I didn’t really know. His application and his dedication to it, seemed pretty exceptional. He was there all the time and he seemed to be doing a good job. He was always there with Downer or in the Downer office, I believe, making discussions, sort of getting around problems before they actually arose … this is only my personal opinion from people I met occasionally…
Cross examination
When asked by Counsel ‘whether or not he is aware that around this time, Chris Smith spoke with Mr McEwan to the affect that Mr McEwan would provide Mr Molloy with assistance, do you agree – were you aware of those conversations?’[13], Mr Molloy stated, inter alia, as follows:
No I was not aware of those conversations. May I add that I originally applied for a field supervisor role within that team, before the interviews took place, Chris Smith actually rang me and asked me, would I reconsider and apply for the senior field supervisor role because he felt I had the skills to be the senior field supervisor, rather than just a field supervisor.
[13] I note that it has not been established that these conversations in fact took place.
When counsel asked whether, in the period from ‘March 2015 to 24 November 2015’, Mr McEwan was assisting Mr Molloy ‘in respect of identifying standards concerning the build work’ that he was performing, Mr Molloy said ‘No … If I required clarification or assistance … I would’ve went to another field manager …’
When asked whether it is a surprise him that Chris Smith has stated, among other things, ‘that he would've encouraged you to consult with James regarding certain decisions?’, Mr Molloy said ‘Yes, it would surprise me actually because that instruction was never given to me.’
Counsel questioned Mr Molloy at length on McEwan’s allegations about the ‘keys’ incident on 24 November 2015 and the ‘heated exchange’ incident on 24 May. The questioning was somewhat unproductive with little useful outcome as Mr Molloy did not agree with most of the propositions put by counsel.
When asked about whether he had used the words ‘smell like a wet dog’ in respect of Mr McEwan’s appearance when he came into the office in his bicycle gear, Mr Molloy said that he did not recall using those words but ‘may have’. Mr Molloy also agreed that it was possible he used the words ‘look what the cat dragged in’.
However, Mr Molloy rejected counsel’s suggestion that from April 2016 to 2018 ‘on dozens and dozens of occasions, you said words to James McEwan to the effect of, ‘you smell like a wet dog’ and ‘look what the cat dragged in?’’
In response to the suggestion by counsel, that Mr Molloy wasn’t happy that McEwan rode a bike to work, Mr Molloy responded as follows:
I didn't care how he got to work because (indistinct) and sat around in the office for a couple of hours wondering around with no shoes on and the clothes that he came into work when there was showering facilities there for other people in that office who used to run at lunchtime, or ride a pushbike to work, ride (indistinct) and they used to come straight in and go and have a shower.
In response questions from the Tribunal with respect of the frequency of attendance in the office during 2016 and 2017, Mr Molloy stated inter alia as follows:
Not very often at all, because I used to start at 5.30 or 6 o'clock and I'd go into the office if I needed to go into the office and I'd meet my guys on site 7.00, 7.30. I'm not even sure what time James started.
And if you went to the office, in general terms, how much time would you spend in the office?---Oh – On an average?---Depending on the workload at the time, the weather, some days I could be in there all day, other days I might be in there – 90 per cent of the time I was out in the field with our work crews.
STATEMENT OF CHRISTOPHER SMITH
In a statement dated 15 July 2021 Mr Smith stated, inter alia, as follows:
I am currently employed by NBN as Senior Manager Build Set Up …..I have known James McEwan since I have commenced with NBN some 9½ years ago …..I have never worked in the same team as James but did work on some of the same projects which required us to collaborate from time to time.
I have been informed that James has made an allegation that I would eavesdrop on meetings he attended and did not announce myself. I deny this allegation as I have never eaves drooped on meetings and make it a practice of mine to inform the meeting of my attendance. I do not recall any interaction with James where he accused me eaves dropping, and I was surprised to hear this.
I can confirm that I hired Craig Molloy as Senior Field Supervisor in or around early 2015. Craig and James worked on the same project but in different teams…I understand that James claims that I asked him to “train” Craig and “bring him up to speed “. I have no recollection of doing this. I would have encouraged Craig to consult with James on certain decisions. For example James had expertise and experience in areas like Aerial infrastructure …..I never asked James to mentor, coach or train Craig.
I don’t recall James making any complaints to me about his interactions with Craig. Contractors had a habit of contacting different NBN personnel to ‘shop around’ or try to get an answer to an issue that they preferred. It was therefore important that all employees on a project provided a unite front and the answers they gave to these enquiries were consistent.
I do recall one incident when James provided a direction to a contractor that was contrary to our specifications. This incident involved a matter of Field Services responsibility and Craig objected to James providing the direction. It was an overstep by James and I recall that I pulled them together as I didn’t want internal squabbling to undermine the work. …I asked them to meet regularly so that they were on the same page and were giving the external contractors consistent messaging.
I am not aware of any confrontation between James and Craig when he apparently retrieved car keys from James’ desk drawer. I do recall that some of the fleet vehicles were delivered to the Newcastle office and at times staff in my team would attend the Newcastle to collect a vehicle to use for the site
I did not receive any complaints from James, nor did he confront me about any issues he had with other employees including Craig.
Oral evidence
Evidence in Chief
Mr Smith confirmed that between 2014 and 2017 he was a Field Manager in construction and that during this time had some contact with Mr McEwan as he was part of the project team. In 2017 he moved to a Network Integrity Manager role with NBN and had no further contact with Mr McEwan.
When asked about the role of his team when he was Field Manager, Mr Smith stated, inter alia, as follows:
My team was responsible for … quality and safety in relation to DP[14] activities in construction of the NBN rollout. … my team would undertake quality assurance … inspections of the DPs doing the work … So a delivery partner would complete a work package, we would do a formal inspection of that at end … During works, we would also be responsible for first-line safety, and we would check that the delivery partner was compliant with their own safety management plans … So complete field-based activities.
[14] Delivery Partner
When asked about the connection between Mr McEwan’s team and the DPs said that he thought that the team was responsible for ‘the project or the project and program management of that work. So time and cost … the financial side of things. Reporting. Those sorts of things. On the progress and status of those contracts and those builds…’
When asked about Mr McEwan’s allegation that Mr Smith as asked to ‘train Mr Molloy and bring him up to speed’, Mr Smith said that he had no recollection of doing that and that ‘there was no need for it’.
With respect to Mr McEwan’s apparent past experience with ‘aerial infrastructure’ Mr Smith explained that he mentioned to Mr Molloy that Mr McEwan ‘had some knowledge in this area‘ and if there were questions, he may be able to help.
When asked about his recollection of the ‘heated exchange incident’ Mr Smith confirmed that he did have brief meeting with the two men and told them as follows:
…as far as in field or field based or construction-based activities, Craig was to give direction to the delivery partners. That was … the agreed requirements of each role. So Craig was to provide that direction. If need be, he could consult with James and that sort of thing, and that's all I asked them to do. Make sure, guys, you are communicating. That when you're talking to the delivery partner, we don't want to give them mixed messages.
Mr Smith confirmed that he had never received any complaints from Mr McEwan about his personal interactions with Mr Molloy.
When asked about an incident in October 2018 in the Pennant Hills office where it was alleged he said to Mr McEwan "How's your mate Molloy," so that Mr McEwan ‘began crying and feeling angry’ and then left the office Mr Smith said he had ‘no recollection whatsoever’.
In response to questions from the Tribunal Mr Smith confirmed that he was based in the Pennant Hills office, has no supervisory responsibility for Mr McEwan and no awareness of the day to day activity at the New Lambton office unless it was reported to him.
Cross Examination
Mr Smith again confirmed that he did not ask Mr McEwan to ‘train up’ Mr Molloy but merely informed Mr Molloy that Mr McEwan was knowledgeable in respect of ‘aerial or power works’.
When asked whether at some time between April and November 2015 he had a conversation with Mr McEwan about Mr Molloy being ‘very hard to work with’ Mr Smith said that he did not recall this conversation.
At this point the Tribunal raised a concern about counsel’s line of questioning and asked Mr Smith why he employed Mr Molloy and whether during his employment there were any concerns about his work. Mr Smith said that he had employed Mr Molloy because as a field supervisor ‘he had extensive construction experience and he had a HSNE background as well, so he brought those skillsets to the role’.
Mr Smith stated that he did not need to ‘coach’ Mr Molloy, as had been claimed by Mr McEwan, apart from ‘normal consultation’ as a team manager. He added that he did not find Mr Molloy hard to work with and that he was ‘a very direct person’ who was good at his job and ‘very thorough at what he did’ and would follow the ‘directions, guidelines standards and specifications to the letter.’
When asked about the ‘car key’ incident’ on 24 November 2015 Mr Smith stated, inter alia as follows:
Yes, I have a recollection of vehicle allocation, so I don't recall a specific email or anything else like that … in Newcastle that there was a pool vehicle assigned to the Newcastle depot, it's classified as a pool vehicle. And I believe James[15] was the custodian, so he had a responsibility to ensure that it was only used by people qualified to do so, of that pool vehicle. During the NBN rollout and increased staffing, we had to reassign that from a pool vehicle to an operational vehicle to field staff … I do recall, and this was one of many times where we reassigned a pool vehicle in consultation with … James as manager, the GM responsible for vehicles and fleet, and said this will be reassigned to a field person. I do recall there was a vehicle reassigned that was the pool vehicle at Newcastle, and was reassigned to a new starter … a field supervisor who required a vehicle to undertake his duties.
[15] Mr McEwan
In response to a request for clarification by the Tribunal Mr Smith stated as follows:
So can I just clarify, you said that that reallocation went through you, through the project manager at the time?---It was – yes, it was – and I believe it was Dave Minney at the time, I spoke to Dave Minney and said, there's a pool vehicle at Newcastle, I've got a new starter starting next week, we don't have any vehicles, it's not suitable to put him into a hire car, it was a suitable technical vehicle, I need to get that pool vehicle reassigned, we spoke to the general manager, confirmed it, and we notified fleet that the vehicle was going to be assigned to this new person.
Mr Smith stated he had no recollection of Mr McEwan visiting the Pennant Hills office and being asked ‘how's your mate Molloy?’.
When questioned about his explanation about the disagreement between Mr McEwan and Mr Molloy, as noted above, Mr Smith agreed that it was necessary to meet with the two men because a contractor had indicated that those two men were providing differing information on behalf of the NBN. Mr Smith explained, inter alia as follows:
No, what I meant is … that the information that needed to go to the delivery partner in relation to construction, was to come from Craig[16]. It was about addressing who was accountable for discussing certain things with the delivery partner, not whether the instruction was right or wrong … I made it very clear to Craig what my expectations were of him. James[17] didn’t report to me so I didn’t direct him in any shape or form. But I made it clear to James that I had given Craig direction that’s he’s responsible for giving DPs construction guidance, quality and safety guidance … that’s what the intent of that meeting was so that we didn’t have two different people giving potentially different information …
[16] Mr Molloy
[17] Mr McEwan
Mr Smith agreed that this was an occasion where different information had been given to the delivery partner but that this was the only time it had been brought to his attention.
STATEMENT OF GREGORY THORNTON
In a statement dated 13 July 2021 Mr Thornton stated inter alia as follows
I am currently employed by NBN Co as General Manager Fixed Line Build Operations … My prior role was General Manager Network Deployment NSW/ACT … for a three year period between August 2017 and September 2020 … when I was in this previous role … Mr James McEwan also worked in the same Business Unit, initially as a Project Officer and later as a Project Manager
In my previous role … I was responsible for managing the NBN rollout for several areas within NSW and the ACT.
At the time I started in the role, there were approximately 203 employees … when I left the role, that number had been reduced to approximately 100. The workforce had been adjusted as most of the rollout of the NBN had been completed by mid-2020.
… as the General Manager I had a number of Deployment Managers directly reporting to me. They were geographically allocated work areas across NSW and ACT and had a number of Project Managers, Project Officers and Project Coordinators reporting to them … through the period between August 2017 and June 2019 Mr McEwan reported to Mr Stephen Hasselbach as a Project Officer then later a Project Manager.
I am aware James McEwan has made a worker’s compensation claim since he ceased employment with NBN … I understand that Mr McEwan alleges that his workload as well as bullying harassment contributed to his psychological condition.
During my interactions with Mr McEwan, I did not observe any changes in his behavioural or performance at work which suggested that he was suffering from any depression, anxiety or psychological issues except for his absence from Nov 2018. However, I note that I wasn’t involved in the day-to-day management of him …
Mr McEwan did not make any complaints to me during his employment concerning incidents of bullying/harassment or heavy workload. …
I understand that James claimed there were some issues between myself and his manager Steve Hasselbach … and that may have in turn caused problems for him. I agree at one point, there was friction between Steve and myself, relating to the reporting of data. I was getting reports from delivery partners suggesting that I may not have been provided with accurate data from Mr Hassebach. I tasked one of my direct reports to look into the data to verify the situation. This issue would not have directly impacted James …
I understand that James has made some allegations in respect of a conversation that we had on 29 June 2018[18]. I have no recollection of that conversation given that it took place over three years ago. I believe considering the claims of the aggressive nature of the supposed conversation towards myself I would have recalled this conversation, taken notes and discussed this further. I have checked my diary notes over this period which have no mention of this conversation.
[18] Diary check
In 2018, a focus team was created to look specifically at the delivery of Aerial works due to the late delivery and complexity of this technology. The Deployment Operations manager reporting to myself at the time was the lead with members, from a number of groups, all with Aerial experience to assist with improving delivery. James was seconded into the team due to his experience and expertise in the delivery of aerial infrastructure. This was a work-based secondment only with HR Reporting Structure and Job title remaining unchanged.
I don’t recall a conversation with James about the aerial project on or about 4 July 2018 or 12 July 2018 and having reviewed my diary records cannot find any details that those conversations as alleged by Mr McEwan took place[19]
[19] Diary check
I understand that James applied for a role a Business Operations Manager in November 2018. He claims I contacted him on 24 November 2018 to advise him he had been unsuccessful with the application. I don’t recall this conversation Taking place I have checked my diary records and have not kept a record of that conversation.
I understand James took some time off work following 24 November 2018 which included a hospital admission and that he returned to work in early 2019. Steve was in contact during James’ absence and assisted him when he returned …
I also understand that shortly after his return there was some sort of personal altercation between James and another Project Manager, Mr Imtiaz Ali. This resulted in Mr Ali making a written complaint … Both Imtiaz and James reported directly to Steve. He was responsible for handling the issue and I understand he was supported by … Human Resources … I did not have any direct involvement in the investigation or resolution of the issue … I do not recall instructing Steve to work it out without the involvement of Human Resources and believe Human Resources were involved …
James along with a number of other employees in the same business unit were notified that they were to be made redundant in June 2019. I understand James initially reacted negatively to this news but after a short time accepted it and asked if he could finish earlier than the proposed exit date. James and I agreed that he would exit on 28 July 2019 and James would be paid the balance of the notice period until the end of July 2019 …
I understand that James alleges that I put pressure on Steve to resolve the issue or complaint he made against Imtiaz before he finished with NBN. I have no recollection of this event.
I understand James has also made an allegation in respect of a meeting he had with me on 28 June 2019 when he travelled to the Pennant Hills office in order to return NBN property. All employees are required to hand in any NBN property at the conclusion of their employment. James could have handed that equipment back to NBN at any of our offices but he elected to attend the Pennant Hills office and to say his farewells. When we met, it was a very pleasant exchange, we joked shook hands and actually went for coffee at the local coffee shop. I also offered my advice in relation to his career prospects, and we parted on good terms.
I do not agree with his characterisation of this meeting as anything other than a pleasant exchange. I am quite disappointed that he has characterised it as anything other than that.
My impression of James was that he was generally good, capable employee and there was no particular issues with his performance [sic]. He had a good knowledge and expertise in network delivery, aerial infrastructure and deployment. At times his performance may have been a little erratic or up and down but generally he was a capable employee.
Since leaving James has attempted to contact me on numerous occasions by sms, telephone and email. Due to the aggressive and persistent nature of these communications I have had to block his telephone calls and understand NBN has diverted any emails that he has sent to employees to a central email address.
Oral Evidence
Evidence in chief
Mr Thornton confirmed that he was the General Manager Network Development in NSW and ACT between August 2017 and September 2020.
Mr Thornton indicated that up to 2017 he was employed in the same business but did not work directly with Mr McEwan, prior 2014 as a Project Manager, he had some contact with Mr McEwan in respect of guidance with aerial construction and between 2014 and 2017 as a Deployment Manager he had no interaction with Mr McEwan. He added that after 2017 Mr McEwan reported to “one level below one of my direct reports, Steven Hasselbach.”
When asked about a conversation, on 23 November 2018, where Mr McEwan alleges he was told he had been unsuccessful in his application for a new role because he was ‘second rate’, Mr Thornton said he could not remember the conversation but that he would not use the term ‘second rate’ to any individual ‘especially when I’m giving feedback on their application for a role.’
Mr Thornton stated that, in November 2018, Mr McEwan had applied for the role of Business Operations Manager and as the role was a ‘direct report to me … my right hand running the operations’, he agreed that as hiring manager it was his responsibility to notify an applicant of an unsuccessful application.
When asked about the outcome of a complaint made by another project manager about Mr McEwan, Mr Thornton explained that matter had been resolved following mediation between the two project managers and their supervising manager with HR support.
Mr Thornton confirmed he met with Mr McEwan on the last day of his employment and said ‘to my mind it was a pleasant exchange…We went downstairs for coffee, it was a pleasant conversation, we shook hands. I didn’t see anything that was untoward.’ He also confirmed that in previous interactions with Mr McEwan he did not detect any ‘ill feeling or unpleasantness’ in their working relationship.
Cross examination
In response to several leading questions from counsel Mr Thornton agreed that the NBN rollout project ‘was a huge undertaking … was a project that had deadlines … and was quite a stressful program’ and that his own role was ‘a high pressure job’.
When asked about his relationship with Steven Hasselbach, he agreed that he had been advised, by the delivery partners, that there were times when Mr Hasselbach may not have provided him with correct delivery dates.
When asked about Mr McEwan’s “aerial secondment’, Mr Thornton explained that he had asked the Deployment Operations Manager to ‘pull together a team’ to focus on aerial work and as the work was in Mr McEwan’s ‘footprint’ and because of his past experience, he was an ideal candidate for the team. He agreed that from time-to-time Mr McEwan would telephone him to complain about aspects of the project but was unable to recall the specific details of the conversations.
In response to a question from the Tribunal, Mr Thornton said that Mr McEwan was not supposed to be reporting to him but ‘chose to do it’. He explained that Mr McEwan still reported to Mr Hasselbach but ultimately the Deployment Manager[20] who looked after that area would ‘look after the delivery of it regardless of whether it was aerial or underground works’ and it was his responsibly to report to Mr Thornton and not Mr McEwan’s responsibility.
[20] Mr Delevere
In response to a question from the Tribunal about Mr McEwan’s unsuccessful job application, Mr Thornton explained the role needed someone ‘who was very focussed, skilled, and capable on analytics, program time schedules’ who could look at schedules and timeframes at an elevated level for the entire NSW-ACT program. He noted that Mr McEwan had started as a project officer which is, by industry standard, a junior project manager, and at just under a year he had been promoted to project manager.
Mr Thornton explained a consultant had already seconded into the role who was ‘very skilled and knowing, looking forward into programs, reviewing risk and org structures’ and he applied for the role.
Counsel asked Mr Thornton several leading questions about the specific content of various conversations with Mr McEwan the details of which he was unable to recall.
Re-examination (respondent)
When asked about the reference to ‘aggressive and persistent communications’ in his written statement Mr Thornton he indicated that they were along the lines of ‘I'm going to take you to court’. He said they started about a couple of weeks after Mr McEwan left, and initially they were more focussed towards HR but over time they changed and were directed ‘towards myself about … taking me to court, me personally’ and some of them ‘weren't really clear about what the intent of the email was.’
MEDICAL EVIDENCE
Mayfield Medical Centre
Extracts from Mr McEwan’s Patient Health Summary are, inter alia, as follows with emphasis added:
17.01.2017-Dr Sarin (GP) : gets insomnia … mood stable … affect euthymic[21] … consider psychologist review
[21] euthymia is a normal, tranquil mental state or mood
4.04.2017-Dr Sarin: mood states gets low mood anxiety affect euthymic speech normal flow and content … insightful nil suicidal ideation nil psychosis DASS 21[22] depression extremely severe … anxiety extremely severe … stress severe … wants medical certificate
[22] DASS is a quantitative measure of distress along 3 axes of depression, anxiety and stress. It is not a categorical measure of clinical diagnoses.
7.04.2017-Dr Sarin: states feels better mood better … affect euthymic
7.06.2017- Dr Claire (Psychologist) 2:05 pm: Bessie 6yr old daughter diag ASD Dylan 14 mths 2nd degree burns to 18% of body (face and neck) has apraxia Early intervention 2yrs and attending normal school … Partner has anxiety … return to uni environ science p/t online and f/t working … moods improved past 2 mths denies suicidality nil hallucinations nil delusions good insight K10 assessment 28[23]
[23] K10 is a simple measure of psychological distress
7.06.2017- Dr Younis (GP) 3:14 pm: wants mental health care plan to see psychologist states suffering ~ 2 year Normal sleep No early morning wakening Depressed mood Anxious Stress at work No Panic attacks No relationship problems Financial problems … No suicide attempts … lots going on … not keen to start on antidepressants would like to do psychotherapy … K10 Assessment 27/50
13.07.2017 – Dr Sarin: states gets low mood anxiety wants to start antidepressants states having follow up with psychologist affect euthymic … nil suicidal ideation … Lexapro 10mg once daily … consider psychiatrist review [24]
[24] Mr McEwan’s leave records indicate he was on annual leave from 3 July 2017 to 14 July 2017
18.07.72017 – Dr Sarin: Asthma, infective exacerbation
29.08.2017- Dr Claire (Psychologist): persistent irrational thoughts fear based – most prominent current- fear of partner leaving has improved sig since commencing SSRIs irritability and frustration sig reduced rltnsp[25] with partner improv
[25] relationship
30.08 2017- Dr Sarin: cough for a few weeks … states having regular psychologist review [26]for low mood anxiety state taking Lexapro 10 mg once daily doesn’t want to change dose at present
[26] Only 2 consultations with Dr Claire on 7.06.2017 and 29. 08 2018.
1.09.2017- Dr Sarin: results Influenza A
8.09.2017- Dr Sarin: high cholesterol … kayaking marathons a couple per year 4-5 hours per week kayaking
18.10.2017- Dr Claire (Psychologist): kids are calmer – adhd meds changed relationship is strengthening states level of depression and anger reduced
20.10 2017- Dr Thambar (GP): follow up of meds advised if needed lexapro can be increased to 20 mg, happy to stay on 10 mg -Prescription printed.
7.011.2017-Dr Sarin: sinusitis
23.07.2018- Dr Sarin: complains mid back pain … states lexapro helps the mood nil significant adverse effects mood stable affect euthymic
20.08. 2018 Dr Sarin:- cough yellow sputum keen for antibiotics … back symptoms improved … mood stable
12.09.2018- Dr Younis: sick for last 2 months started as sore throat took Rulide … respiratory tract infection … Asthma, infective exacerbation
6.11.2018- Dr Younis: states not feeling 100% achy fatigue night sweats lightheaded recurrent resp infections? chronic sinusitis
16.11. 2018 -Dr Younis: thinks getting better sometimes getting headaches, related to house stress/2 kids with especial needs
1.12.2018 -Dr Younis: was admitted in Mater Hospital after argument with wife, called police sectioned and seen inmate hospital … feels ok otherwise not anxious, was stressed, functioning well in diazepam PRN denying any suicidal thought, planning … Lexapro changed to 20 mg tablet
22.01.2019-Dr Wan(GP): known anxiety and depression … Recent MH admission Lots of stressors at home Wife with bipolar, kids with ASD NBN project manager- work stressors happy to continue with medication for now
25.02.2019 – 19.12.2019: There were 7 consultations unrelated to Mr McEwan’s claimed mental health issues and no record of any significant mental health symptoms.
9.01.2019[27]- Dr Younis: Gives 4 years h/o stress, depression and mental health issue; thinks it due to work bullying Was working at national broadband … until June 2019. states its affecting mental health now; ongoing poor sleep Seen by Lawyer, now wants to be on Work incapacity certificate … a colleague at work envolved [sic] in bullying; was angry on him conflicts – causing stress/ anxiety/ depression, … Made complaint last year in jan 2019 to boss: Told in June 2019 that they investigated and there’s nothing wrong made redundant … seeing psychologist
18.01.2020- Dr Younis: brought Certificate of Capacity to fill H/o Anxiety/depression/stress…work bullying since before Christmas 2017 states has no current mental health capacity for work …
40.02.2021- Dr Younis: Brought papers for an independent medical assessment by psychiatrist Dr S Saker … Impression – Major Depressive Disorder with anxious distress on background of alleged workplace bullying and harassment;
[27] Seven working days prior to Mr McEwan lodging his worker’s compensation claim
Dr Younis – General Practitioner
In letter from Comcare, dated 21 January 2020, Dr Younis was asked to provide a medical report that addressed several questions regarding Mr McEwan’s claimed mental health condition. Dr Younis approached the request by writing on a copy of the letter with brief answers to each of the questions.
Dr Younis noted the first consultation with Mr McEwan was on 7 June 2017 when she made a diagnosis of ‘psychosocial stress / anxiety depression’ but didn’t begin to see him again regularly until 12 September 2018.
In response to a question about employment stressors Dr Younis noted ‘heavy, work pressure, bullying by colleague, conflicts with him’.
In response to the question as to her current diagnosis Dr Younis recorded ‘Major depression, Anxiety, H’O work bullying/ stress’ but did not provide any rationale to support this diagnosis.
Oral evidence
Evidence in chief
Dr Younis confirmed the notations the notations that she had recorded in the copy of the request by Comcare dated 21 January 2020.
When asked by counsel to ‘elaborate’ on the employment stressors she had noted she said ‘this is what I can recall he told me’ but could not provide any additional details.
Cross examination
When asked to consider her consultation record on 9 January 2020 where she had noted ‘gives a four year history of stress, depression and mental health issues; thinks it's due to work bullying … states it is affecting him now’, Dr Younis she explained that ‘he gave me a history and he thinks it’s because of the bullying’ and agreed that Mr McEwan had come to believe that his current mental health issues were a result of workplace bullying.
When asked about the mental care plan she had prepared on 7 June 2017, Dr Younis conceded that she had mentioned ‘stress at work’ with but made no reference to ‘workplace bullying’ and in fact the first time she had noted ‘workplace bullying’ was on 9 January 2020.
When asked to consider her own consultation notes, and the notes of Dr Claire on 7 June 2017, Dr Younis agreed that the predominant issues raised were Mr McEwan’s ‘family and non-work is issues’.
When asked about her consultation notes on 16 November 2018 Dr Younis agreed that Mr McEwan was complaining of ‘headaches’ because of non-work related stressors.
Dr Claire – Psychologist
In a letter to Dr Claire[28], dated 19 February 2020, Dr Younis referred Mr McEwan for an opinion and Management under a Mental health plan because has a history of ‘work bullying affecting mentally, causing stress, anxiety/ depression’.
[28] Dr Claire is a psychologist associate with the Mayfield Medical Centre. She is not endorsed as a Clinical Psychologist with the Australian Health Practitioner Regulation Agency (Ahpra).
In the appended copy of the plan Dr Younis noted that Mr McEwan presented with a 4-year history of ‘stress, depression and mental health issues, thinks its due to work bullying’. She describes the diagnosis as ‘work bullying, stress, anxiety, depression’.
In a letter to Dr Claire, dated 24 February 2021, Dr Younis again referred Mr McEwan, for ‘ongoing care and psychological support and management under Mental health care plan for Major Depressive Disorder with Anxious distress on background of alleged workplace bullying and harassment.
In the appended copy of the plan Dr Younis noted that Mr McEwan presented with ‘ongoing depression, sleep disturbance and mental health issues allegedly due to work bullying when he was working at national broadband work until 2019’. [sic]
The initial summonsed documents produced by Dr Claire included copies of consultation notes between 21 July 2020 and 13 September 2021. Dr Claire recorded Mr McEwan’s various current symptoms and complaints but provided no meaningful assessment with respect to diagnosis or ongoing treatment.
Subsequent copies of consultation notes recorded during 2019 were also provided. These documents were in the form of a sketchy shorthand and of little value.
Hospital Admission
Request by NSW Police for Assessment: The description of the circumstances that led to Mr McEwan’s apprehension by NSW police at 10.20 pm on the 24 November is as follows:
Text wife “Can you hurry up & come home. I have a suicide to plan”. Police attended. Spoke to PAT who detailed he is having a very difficult time currently. Suffers from depression, medicated but he has been feeling more “down” than usual & feels his meds may need adjusting. Financial stresses, 2 x Kids ~ autism, wife recently diagnosed ~bipolar. Today PAT found out his lifelong friend died of heart attack. Stated this pushed him over the edge & that he was glad police had come (eventually) because he was thinking of killing himself. Stated he’d like to talk to someone. States that he had 4x beers today,
Calvary Mater Newcastle Emergency Department Clinical Record: Triage: 24/11/2018 ... 23:35 Presenting Problem: … presented with c/o thought with clear plans … pt had 10 standard drinks today… scheduled by police … BAL – .097. h/o depression…
Mr McEwan was admitted to the Mater Mental Health Service on 25 November 2018 at 00:02 hrs. Relevant extracts from the initial Mental Health assessment by Dr Stanhope are, inter alia, as follows with emphasis added:
RT CNS: S22 … after sending a txt to Wife … stating ‘can you hurry up and come home. I have a suicide to plan’. Pt states he sent txt as his wife had gone out and left him t home with their two children. Pt spoke to police and reported several Psychosocial stressors Including Financial and Family Stress. Pt employed as Project Manager for NBN for 6.5 years describes the work as stressful … a close friend of many years has recently passed away post heart attack
D/W pt. 49 yrs old male, resides with wife and two children … works full time in telecommunications. From the onset he volunteered how he is currently “tired ... need to sleep ... just do what you want to … am just over it all”. It was challenging to establish any form of rapport with patient, who was mostly abrupt, dismissive of the significance of the assessment and MH legislation processes, and recurrently accusatory towards his wife’s actions that led to him being transported to hospital. On attempting to explore background of presenting complaint he inferred how he has been working “long hours” within a work environment he claims has been conducive to employees “dying from ill health” and how his current role as the main carer for both his children … due to his wife’s mental health condition, has been predominantly taxing, and in conjunction with learning about the abrupt death of a close friend via a “heart attack” today caused him to “snap”. It was difficult to establish with any further clarity regarding events of today, he abruptly declared having consumed “a dozen beers a half a dozen rum/coke today” at a work function. And at some point, returned home. Again, he proceeded to speak with derogatory connotations towards his wife, citing her mental health problems being used as a means to incorporate him and enhance his care responsibilities for her and the children.
P/C to wife: Hermione. Upset and in tears on the phone. Disclosed that James had physically assaulted her on several occasions over the past few weeks, including incidents of him “shaking her” – causing several bruises, and that he has been more verbally hostile towards her also. Corroborated above stressors being conducive to adversely impacting on his mental state and that today he had been at a work function, returning home late, and that they became embroiled in a heated argument and that she had left the house at some point, leaving patient with two young children and that he then sent her an SMS informing her of wanting to commit suicide.
Resident Medical Officer (Dr Price) – progress clinical notes on 26 November 2018 are recorded, inter alia, as follows with emphasis added:
15:00 – 49 year old under Act as mentally disordered
History of Saturday night revisited:- chronic stressors- learnt of death of close friend – ETOH +++ – in “good place’ however became angry “switch flicked “ on way home & became and aggressive/angry – verbal altercation with wife who then left home to allow him to cool off (which he states usually works)- sent a text message threatening to suicide – explains he did this as a cry for help & to manipulate her to come home quicker rather than being a a planned or deliberate act … Police called
Explains numerous chronic stressors: – wife recent dx bipolar (has meant ↑ responsibility care of children) – mother died (Alzheimer’s ) January of this year. Feel he is still processing this grief – 2 x kids with ASD (recent diagnosis) of one child this year, limited social support / family – work stress NBN stress & pressure plus long hours Explains many colleagues left with stress related illness – … issues with housing & being evicted earlier in the year. Currently looking at mortgage after inheritance
Past Psych hx: Depression – dx 2017 – key features anhedonia[29] & poor sleep (4 hrs per night) GP overseeing Rx- Lexapro 10 mg nocte – has been seeing psychologist through MHCP however stopped 6 months prior[30]- sees psychologist through EAP when needed….
Family MH hx: Bother and nephew have bipolar, ASD in family on dad’s side
Over last few months describes one or two occasions where he has had some fleeting suicidal ideation (e.g., standing at a train platform thinking about stepping in path – fleeting – no plan or real intention – when this happens prompts him to seek help
Poor sleep – problem since childhood – difficulty falling asleep …..
Anhedonia improving over recent months → starting to have more moments of appreciating life’s pleasures & proud dad moments Enjoying time with kids – states that this stay in hospital has been a great way to rest and “let go”, an opportunity for sleep has made
sleep → has made inroads with work with plans to ↓ workload & upcoming 4 week holiday → employer happy for him to have this week off → mortgage being organised etc.
MSE[31]: … Rapport easily established … animated conversation. lots of gesturing. Affect congruent with mood improving as per pt. … -very talkative, loud speech. No thought form issues – rational thought content focussed on stressors and later future focussed on ways things will change in the future to allow him to better manage stress … reasonable insight, improving judgement. Reiterated how this admission had allowed him to rest& relax
P/C to consultant: clinical history/scenario relayed – would like overnight observation …
16:00 – Discussion with Pt in the room → explained consultant wanting overnight stay & review tomorrow – Patient very different in interaction to previous. Angry & accusing MH system of lying to him & losing his trust as his expectations have not been met. Stating will make complaints and has done so already. Not happy with doctors who reviewed him over weekend & was under the impression author was psychologist … he says trust has been broken and very unhappy with care – tried to listen to his concerns & apologise for his perception and experience → explained will be reviewed by consultant tomorrow AM.
[29] Inability to feel pleasure
[30] Three consultations in 2017 – No consultations between 18/10/2017 and January 2019
[31] Mental state examination
In response to a request from Tribunal to explain his use of the Self -Reported Symptoms Inventory (SRSI), Dr Lee stated, inter alia, as follows:
It's a test that's been devised by some European psychiatrists and, essentially, it's based on tests like the MMPI but because the MMPI is so long, they decided to have … a quicker screening test that can be used as part of diagnostic evaluation. So, they have a combination of symptoms of depression, anxiety, pain, cognitive problems, and so forth, and they have pseudo symptoms, which are atypical symptoms of such conditions and it's designed to pick out people who are genuinely reporting their conditions. Because of the same issue, when you have a self-report, the clinician often doesn't know the genuineness of the self-report and one of the strategies is to look at the pattern of description. So, the idea behind this is that if you endorse a high number of pseudo symptoms, exaggerated, atypical, unusually found the higher the number of that, the more likely it is invalid symptom reporting. … And so the idea is … to look at the statistical probabilities that somebody is exaggerating, or at the risk – or reporting implausible patterns
Dr Lee stated that it is his usual practice to use both the MMPI and the SRSI because ‘I think it’s important not to rely on one test where possible’ and that in his opinion, doing both tests provided him with a better understanding of Mr McEwan’s presentation.
Dr Lee confirmed that he was aware that there are reports from two psychiatrists who assessed Mr McEwan, in September and December 2020, who have both made a DSM-5 diagnosis of ‘major depression and generalised anxiety disorder’.
In response to a question from the Tribunal, Dr Lee confirmed that, when he saw Mr McEwan in February 2020, on his own assessment and all documents available at that time, he would not have been able to make the diagnosis of ‘major depression and generalised anxiety disorder’.
Furthermore, he confirmed that on the basis of the all the available evidence he would not have been able to make the diagnosis of ‘major depression and generalised anxiety’ prior to February 2020.
When asked to consider the Mater Hospital records and the fact that the discharge diagnosis was an ‘adjustment disorder’ Dr Lee stated, inter alia, as follows:
Yes, I think that … he felt that he was markedly improved after this examination. So, usually, if you think somebody has a major depression, a depressive illness/something pervasive, then you would not expect it to improve after a short period of time and the other thing we know is that he was quite intoxicated at the time – his blood alcohol level was .09, or something like that. So, he was intoxicated, which means that his depression, his mental state, could well have been secondary to his intoxication. … when people get drunk they become more pronounced in their moods. They do impulsive things … So, I think that what they are saying is that they didn't think he had a pervasive depression. Like they thought he had an adjustment disorder, which is something that people can get in response to severe stress. You're allowed to have an adjustment disorder to feel depressed but the implication is that it's a syndromal diagnosis. It's a condition that is expected to improve once the stressors go away.
So just to follow up on that, is it common for people to have episodes and times of feeling depressed, which doesn’t necessarily mean they’ve got … a major depression … in terms of a DSM-5 diagnosis of depression?- ‘Yes, that’s right. That’s my belief’.
I response to a final question from the respondent’s counsel as to the meaning of ‘affect euthymic’ Dr Lee stated ‘Normal …100 percent mood wise is normal, not depressed’.
Dr A. Takyar – Consultant Psychiatrist
On 21 September 2020, Dr Takyar conducted a Telehealth Medico-Legal examination of Mr McEwan.
In his report, dated 24 September 2020, Dr Takyar notes a Date of Accident as 28 June 2019 and the documents that had been provided to assist in the examination. I note that the list did not include any statements from employees of NBN or the summonsed documents from the Mayfield Medical Centre and the Mater Mental Health Service
Dr Takyar stated, inter alia, as follows with emphasis added:
Mr McEwan reported that changes in his mental state had developed initially in “December 2015” … He noted that he was suffering anxiety at that time, and he began to consult his GP in late 2016 or early 2017. He reported that depressive changes began around “May 2016” … I raised other factors highlighted in another report. Mr McEwan reported that his wife had a long-term diagnosis of mental illness … He stated that she was then diagnosed with bipolar affective disorder and stabilised on treatment … He additionally stated “my children have ASD …” He explained that his children were doing well and that there were no other psychosocial stressors affecting him at the current time[38].
Current Psychiatric Symptoms – Mr McEwan described ongoing low mood … with a decline through his injury in his sleep … He reported his concentration has deteriorated … has had difficulties with short term memory … his energy levels were low, rated at around 30% of his pre-injury baseline … his enjoyment level is also low, rated at 20% of his pre injury baseline … He described diminished hope and intermittently feeling helpless and worthless. He described suicidal ideation once in the last three months and denied any acute ideation, intent or plans … described moderate to severe anxiety … lowered frustration tolerance as well as physiological anxiety changes …
Current Psychiatric Treatment – sees psychologist … every six weeks, with treatment commencing in late 2016 … has been prescribed escitalopram … since June 2017 and is currently prescribed 30mg (the usual maximum is 20 mg) … He confirmed that he was admitted to Mater Hospital Health for three days in November 2018 in the context of suicidality. He does not see a psychiatrist …
Mental State Examination- He was engageable, polite and appropriate in manner, maintained eye contact reasonably with the video camera and did not display any psychomotor disturbance … His mood was low, his affect restricted in range … His speech was slightly increased in rate … there was no abnormality of thought stream. … He had some evident difficulty with memory, having to pause to recall dates … His insight and judgement were intact.
OPINION – Mr James McEwan is a 51-year-old man with no active pre-existing psychiatric history who described the development of depressive and anxiety symptoms reflecting a DSM-5 generalised anxiety disorder in the context of significant workplace bullying and harassment occurring in the course of his employment with NBN Co. This occurred both in his work as a project officer, and in his project management role. He described a gradual deterioration in his psychological state, with the development of symptoms in the course of his employment. He did note that while his wife has a history of mental illness … and is now well and functioning well. He also reported that while his children have autism spectrum disorder they are well supported by early intervention and are doing well. Therefore, it is my view that there are no other, non-work active contributing factors at the current time. Mr McEwan requires ongoing support from his psychologist, ongoing antidepressant therapy and would also benefit from referral to a psychiatrist for supervision … related
[38] More than one year after having accepted a redundancy.
In response to specific question Dr Takyar stated, inter alia, as follows with emphasis added:
Mr McEwan’s prognosis is guarded because he continues to experience active, entrenched psychiatric symptoms despite the passage of at least 4 years since his injury began and despite regular psychological support and the fact that he is prescribed an antidepressant at a higher dose than normal.
… It is my view that Mr McEwan’s psychological injury was substantially contributed by his duties at the NBN and these duties remain substantial contributor to his injury.
Oral Evidence
Cross examination (Respondent)
Dr Takyar confirmed his opinion that Mr McEwan is suffering from a ‘generalised anxiety disorder and major depressive disorder’ caused by ‘workplace bullying and harassment’.
Dr Takyar agreed that, in formulating his opinion, he had accepted the version of the various work-place events as described by Mr McEwan in the presentation of his complaint.
When asked if the evidence does not establish that these events occurred in the way in which Mr McEwan has described, what impact would it have on his opinion, Dr Takyar stated that ‘It’s the perception of there being bulling and harassment … That is that the worker felt bullied by the events.’
Dr Takyar said that he was not in a position to say whether the events ‘have or haven’t occurred’, but that ‘it didn’t present it in a way that seemed to indicate that the history he was providing was something that hadn’t happened’.
After prolonged by questioning by counsel and the Tribunal it became clear that Dr Takyar was not well informed about the various non-work stressors that had been recorded in the general practice and Mater Hospital records.
Dr Takyar said that he did not know if Mr McEwan was ‘downplaying’ the stressors when he mentioned them in presenting his history but did concede that he was not told by Mr McEwan that he was admitted to hospital because of workplace bulling.
In response to questions from the Tribunal with respect to the assessment of any impairment of Mr McEwan’s social or occupational functioning during his employment, Dr Takyar conceded that he could only comment on his functioning ‘at the time of my assessment’.
In response to a question from the Tribunal, Dr Takyar agreed that to be satisfied that a person has a psychiatric disorder, there must be some evidence of functional impairment as well as symptoms.
Dr S. Saker – Psychiatrist
On 26 November 2020, Dr Saker conducted a Telehealth Medico-Legal examination of Mr McEwan.
In a report dated 10 December 2020 Dr Saker stated, inter alia, as follows with emphasis added:
Presenting problems: Thanks for referring this 51year old man who was made redundant in April 2019. In 2018 he tried to commit suicide twice, once after he was allegedly bullied in his Sydney Office. He claims to have been bullied for 4 years by Craig Molloy and others. The bullying started in 2015 and he began to document it from 2016… over this period his mental health declined. He was feeling depressed and suicidal. He considered jumping in front of the XPT Train. … He planned to kill himself in November 2018. He paddled his kayak into the harbour drunk. He was sectioned to the Mater … In January 2019 he was accused of bullying himself. He worked from home for 6 months
He was depressed every day from 2016 to 2020. His General Practitioner referred him to his psychologist … His motivation is low, and his energy level is low. His concentration is poor … He cannot read … He has initial insomnia … He is currently taking Escitalopram 30mg in the morning. He has not seen a psychiatrist.
Family history of mental illness: Nil mood disorders
Personal history: His kids are high functioning and go to public school
Mental State Examination: … He had a tense and sometimes hostile affect. His mood was “depressed, over it”. He had no formal thought disorder. He had negative, angry and anxious thought content. His judgement and insight were good.
Clinical impression: 51 year old man with Major Depressive Disorder with Anxious Distress caused by workplace bullying and harassment.
In response to specific questions Dr Saker stated, inter alia, follows:
My view is that he has Major Depressive Disorder an Anxious Distress. He has had more than two weeks and more like four years of sustained depressed mood, anhedonia, decreased energy and motivation, poor sleep … decreased concentration … suicidal ideation energy as well as chronic anxiety.
My view is that his Major Depressive Disorder an Anxious Distress was caused by his employment and the alleged bullying and harassment by his managers and colleagues. This was 100% of the contribution to his psychiatric condition.
His prognosis is poor as he is not able to afford psychiatric review or ongoing psychology sessions and is now in a parlous state which means he is likely to lose his house further compounding stains on him and his family.
He requires a medication review by a psychiatrist, a new antidepressant etc.
Oral evidence
Evidence in Chief (respondent)
Counsel sought clarification from Dr Saker in respect to three entries in his written report.
·In 2018, he tried to commit suicide twice. Once, after he was allegedly humiliated and bullying in his Sydney office.
·He planned to kill himself in November 2018. He paddled his kayak into the harbour drunk.
·He was depressed every day from 2016 to 2020.
Dr Saker confirmed that these entries are an accurate record of what he was told by Mr McEwan.
Cross examination
When asked by whether he still had a copy of his letter of instruction with relevant the attachments Dr Saker said he did not have the attachments[39]. He added that he could not content of additional and could not explain why he longer had them as they were scanned into the ‘cloud based medical software’ prior to the consultation
[39] I note that the letter of instruction of 9 November 2020 states ‘Attachments: Medical report, other relevant information and case summary’. There is no record of which documents were attached
After further investigation by the Respondent’s counsel, it was confirmed that 16 documents were uploaded to the company[40] e-reports portal. Dr Saker explained that they could access the documents from the portal but conceded that he could not say whether he actually saw the documents and agreed that his report was based on an assumption that he was provided with a fairly accurate and reliable history.
[40] eReports Pty Ltd
Counsel for applicant persisted to try and establish whether Dr Saker had received all the relevant documents and referred to an email from e-Reports which suggested to Dr Saker that an email form e-Reports stated that ‘files uploaded. ... approximately 12 documented stated, all of them are PDF documents’. Dr Saker said that ‘It might indicate I had access to them it doesn’t indicate that I saw them or received them. And usually I’d make a note in my report and I’d list any documents I’d seen … So I think there’s a big chance that I didn’t see the documents’.
When asked by the Tribunal to explain his opinion that the ‘alleged bullying and harassment by the managers and colleagues … was the 100% of the contribution to his psychiatric condition’ Dr Saker said ‘there wasn’t any other contributing factor identified in his history ... and I asked him the question whether anything else contributed to your depression and he said, no.’
After the Tribunal raised various issues, in Mr McEwan’s medical history, that had not been considered by Dr Saker, he agreed that the contribution of McEwan’s employment to his psychiatric condition was ‘a much more complex issue’.
CONSIDERATION
‘Ailment’?
The first issue to consider is whether Mr McEwan suffered an ‘ailment’ for the purpose of the SRC Act.
Section 4 of the SRC Act defines an ‘ailment’ as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Mr McEwan submits that he has suffered an ‘injury’ for the purposes of the SRC Act and that the ‘injury’ described as ‘major depressive disorder and generalised anxiety disorder’ (MDDA).
Mr McEwan submits that his ‘injury’ is a ‘mental disorder of gradual development’ that began in 2015 but became symptomatic in April 2017 when he first attended his general practitioner for treatment of ‘low mood anxiety’. Alternatively, he submits that the ‘date of injury’ is 25 November 2018 when he was admitted to the Mater Hospital Mental Health Unit.
Notwithstanding the uncertainty about the onset of his injury, Mr McEwan, as a matter of fact, claims that he has suffered from MDDA since April 2017. In support of his claim, he relies on the assessments and opinions of Drs Takyar and Saker.
The difficulty for Mr McEwan is that the written and oral evidence provided by the two psychiatrists is, in my view, problematic in that it is not consistent with other evidence before the Tribunal.
Both psychiatric assessments were performed by telehealth interview more than twelve months after Mr McEwan had accepted a redundancy from NBN and about six or more months after Comcare had denied liability for compensation.
Both psychiatrists had concluded that Mr McEwan’s MDDA was causally related to persistent bullying and harassment he had experienced during his employment. These conclusions assumed, that the self-reported retrospective history, provided by Mr McEwan, was accurate and reliable. On my reading of the available evidence, that assumption was unsound.
Notwithstanding the issue with respect of causation, it is possible that Mr McEwan’s clinical presentation at the time of the assessments was consistent with a diagnosis of MDDA for other reasons. However, given the concerns about the reliability of Mr McEwan’s reported history and the fact that, neither psychiatrist fully addressed alternative causal factors, the validity of the diagnosis of MDDA caused by his employment is, in my view, uncertain.
In the Mayfield Medical Centre clinical records, between January 2017 and October 2018 there are sporadic references to symptoms such as ‘depression, low mood, anxiety, stress at work, insomnia’, however, there is no evidence of a formal psychiatric assessment and no evidence of significant impairment of social or occupational functioning.
Between January 2017 and February 2020, the first and only formal assessment of Mr McEwan’s mental health, by a psychiatrist, was during his 3-day admission to the Mater Hospital Mental Health Unit in November 2018.
During the admission, several personal and family stressors were identified including ‘stress and pressure – plus long hours’ at work, but there was no mention of ‘bullying and harassment’ in the workplace.
Mr McEwan was discharged with a diagnosis of ‘adjustment disorder’ with a specific conclusion that there was no evidence of a major mood disorder.
Following discharge Mr McEwan took a few weeks leave and returned to work in January 2019.
Dr Lee saw Mr McEwan on 21 February 2019, about one month after he had lodged his compensation claim, and after a comprehensive assessment, Dr Lee concluded that he was unable to provide a specific diagnosis ‘given the evidence of unreliable reporting’.
In his supplementary report in October 2021, after a detailed review of all the available documentary evidence, Dr Lee confirmed his original opinion and stated that ‘when I assessed him, and his performance on the MMPI and SRS, I considered he was embellishing and exaggerating his symptoms and was not suffering from a condition outside the boundaries of normal mental functioning and behaviour’.
In his oral evidence Dr Lee did not resile from the opinions he expressed in his written reports and in response to questions from the Tribunal confirmed his opinion during 2017/2018 and in February 2020 Mr McEwan did not suffer a ‘major depressive and generalised anxiety disorder’
Conclusion
On consideration of the evidence set out above I am not persuaded that, during his employment with NBN and in in January 20, Mr McEwan suffered from a major depressive and generalised anxiety disorder’
However, I am satisfied that, in November 2018, Mr McEwan suffered an ‘adjustment disorder’ which can be considered to be an ‘ailment’ for the purposes of the SRC Act.
In reaching in my decision, I have preferred the evidence of the Mater Hospital Mental unit records and Dr Lee.
In my view the hospital records represent the first and only reliable assessment of Mr McEwan’s mental health during his employment with NBN.
Dr Lee, in his written and oral evidence, in my view, provided a comprehensive and persuasive assessment of Mr McEwan’s mental health issues which was consistent with the contemporaneous documentary evidence.
Contribution by employment?
The next issue to consider is whether Mr McEwan’s ‘ailment‘ was contributed to, to a significant, degree by his employment with NBN.
Initially, Mr McEwan claimed that since 2015 he was subjected to persistent bullying and harassment during employment with NBN and that this had significantly contributed to his mental health issues.
Mr McEwan has supported his claim with his own retrospective narrative that included a detailed recollection of specific incidents and conversations which he alleges occurred in the workplace.
These incidents and conversations are set out in some detail in Mr McEwan’s written statements with relevant extracts set out above.
The common theme in his written statements and oral evidence is that the behaviour of some of his work colleagues caused him to suffer so much stress that he was afraid to go to work.
The difficulty for Mr McEwan is that, apart from his own assertions, his allegations and recollections are not corroborated by other evidence.
In describing the specific incidents and conversations Mr McEwan provides a remarkable level of detail which he claims is supported by his diary entries. However, perusal of copies of the relevant pages of his diary reveals only sparse entries with nothing approaching the level of detail that he has reported in the statements.
In their written and oral evidence, the NBN employees named by Mr McEwan as the cause of the bullying acknowledged the various incidents and conversations but unanimously disagreed with the specifics of Mr McEwan’s versions.
The tenor of much of Mr McEwan’s evidence, in my view, was self-serving, exaggerated, and more suggestive of differences of opinion and disagreement rather than bullying or harassment. The evidence suggests that he considers himself as more capable than some of his colleagues, tends to get angry when his opinions are not followed and also does not acknowledge his own contribution to the incidents.
Furthermore, Mr McEwan’s evidence is almost entirely focussed on establishing his claim that workplace bullying, and harassment has been the cause of his mental health issues, with little acknowledgment of other stressors. In his oral evidence he was quite dismissive of the various personal and family stressors which have been clearly identified in the documentary evidence.
Relevantly, there is no mention of workplace bullying in the Mayfield Medical Centre records until 9 January 2020, one week before Mr McEwan lodged his compensation claim. At that consultation Dr Younis noted that Mr McEwan ‘thinks’ his depression was ‘due to workplace bullying’ which suggests he was trying to formulate his own diagnosis.
Furthermore, in the Mater Hospital Mental Health Unit records, although there is reference to pressure and stress at work with long hours, there is no mention of a history of persistent workplace bullying and harassment. However, personal and family issues were clearly identified as the predominant stressors that led to Mr McEwan’s hospital admission.
The original focus of Mr McEwan’s claim was clearly based on an allegation of workplace bullying and harassment, however, in the course of the hearing Mr McEwan’s counsel sought to establish an alternative claim and submitted that ‘it is entirely plausible that the kind of years and years of pressure would accumulate and cause stress’ and that this was a significant contributing factor to Mr McEwan’s psychiatric injury.
Conclusion
On consideration on the evidence as set out above I am not persuaded that Mr McEwan was subjected to persistent bullying and harassment during his employment with NBN.
I accept that during his employment with NBN there were occasions where there were differences of opinion, disagreements and some behaviour which caused Mr McEwan to experience some stress. However, I am not persuaded that these occasions contributed, to a significant degree, to Mr McEwan’s ‘ailment’.
I also accept that in the course of his employment Mr McEwan may have experienced periods of stress because of work pressure and working long hours, however, on the available evidence, I am not persuaded that this contributed to, to a significant degree, to his ailment.
On consideration of the evidence as set out above I am satisfied that Mr McEwan’s ‘ailment’ was not contributed to, to a significant degree, by his employment with NBN and, therefore, not a ‘disease’ for the purposes of section 5B of the SRC Act.
DECISION
For reasons set out above I am satisfied that Comcare is not liable to pay compensation pursuant to section 14 of the SRC Act.
The decision under review is affirmed.
I certify that the preceding 215 (two hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member
...................................[SGD].....................................
Associate
Dated: 10 June 2022
Date(s) of hearing: 7, 9, 10, 11 March 2022 Counsel for the Applicant: Mr J Harrison Solicitors for the Applicant: Cardillo Gray Partners Counsel for the Respondent: Mr C Clark Solicitors for the Respondent: HBA Legal
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