McFarland and Telstra Corporation Limited
[2007] AATA 1663
•13 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1663
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/190
GENERAL ADMINISTRATIVE DIVISION
)
Re
ALLAN McFARLAND
Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Dr M Denovan, Member Date13 August 2007
PlaceBrisbane
Decision
The Tribunal affirms the decision under review.
...................[sgd]...........................
Member
CATCHWORDS
COMPENSATION – applicant claims that bullying in his place of employment resulted in him suffering anxiety/depression – consideration of whether this condition was caused or contributed to by his employment – medical evidence – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Hart v Comcare (2005) 145 FCR 29
Wiegand v Comcare (2002) 72 ALD 795REASONS FOR DECISION
13 August 2007
Dr M Denovan, Member
Introduction
1. Mr Allan McFarland is an employee of Telstra. He has complained of an anxiety/depressive condition which he claims to have sustained by reason of his employment with Telstra. I have to decide whether he is entitled to receive compensation in respect to this condition.
2. Mr McFarland has been employed by Telstra Corporation since December 1994, and has been employed as a Customer Sales and Service Consultant since 1997. His duties in that role include receiving inbound calls in a call centre regarding sales enquires, billing enquiries and general customer service. He is also required to achieve regular performance criteria which include making a number of sales per month and to participate successfully in regular training relating to new Telstra mobile technology.
3. Mr McFarland contends that from 2 August 2000 until 7 June 2006 he experienced various instances of bullying, intimidation, vilification and harassment by various persons in management and other staff members of Telstra, and that as a result he suffers from anxiety and depression. In particular Mr McFarland stated that he believes Telstra has used written warnings and various exclusion methods as tools of intimidation.
4. The respondent contends that the applicant does not suffer from a psychiatric condition, and in the event the Tribunal finds that he does suffer from a psychiatric condition, the respondent contends that it has not been caused or materially contributed to by his employment. The respondent further contends that if I were to find that Mr McFarland does suffer from a psychiatric condition that has been caused or materially contributed to by his employment, compensation is not payable as the condition arose as a result of reasonable disciplinary action taken against him.
Background
5. In a brief letter dated 11 May 2004 psychiatrist Dr G Larder indicated that Mr McFarland suffers from a medical condition for which he is receiving treatment. Dr Larder opined that Mr McFarland was fit to commence a return to work process.
6. In a letter addressed to Dr G Deed dated 18 May 2004, Dr Larder opined that Mr McFarland has a severe Adjustment disorder.
7. On 2 June 2005 Mr McFarland submitted a claim in respect of anxiety disorder and anxiety/depression that occurred as a result of alleged bullying and harassment.
8. In his report dated 14 July 2005 (T21 folio 237), psychiatrist Dr D Samuell said that he had some difficulty interviewing Mr McFarland who was defensive, combative and intrusive. Dr Samuell noted the applicant had a general paranoid demeanour and rigid thinking, and a tendency to relate detail that was beyond the scope of the interview. Dr Samuell noted that halfway through the scheduled one hour interview, an alarm went off in the applicant’s satchel and he said that he had an appointment with his family and would have to reschedule.
9. Dr Samuell opined that it was Mr McFarland’s perception of his difficulties rather than the fact that problems have occurred in the workplace that has caused his psychological problems. Dr Samuell provided a diagnosis of personality disorder not otherwise specified with paranoid features. Dr Samuell opined that Mr McFarland’s condition leads to an escalation of his workplace difficulties, and that Mr McFarland is likely to antagonise his managers thus exacting punitive responses, and once situations escalate he tends to decompensate into a state of frank anxiety. Dr Samuell opined that Mr McFarland is the predominant architect of his own suffering, and has not been injured during the course of work. Dr Samuell said that Mr McFarland’s personality disorder likely pre-existed his claim, and that he had no acute psychiatric disorder and that he could be working without impairment immediately.
10. In his brief letter dated 17 August 2005 Dr Samuell stated that he did not consider Mr McFarland’s personality disorder had been caused by Telstra.
11. In his report dated 13 July 2006 Dr Larder said that Mr McFarland has suffered from chronic adjustment disorder, however there was insufficient evidence of subjective distress or of functional impairment to allow the diagnosis of a mental disorder to be made at that assessment. Dr Larder concluded that Mr McFarland’s psychiatric condition was resultant from the stressors reported as arising from his course of employment.
12. In her report dated 7 November 2006 psychiatrist Dr J Reddan opined that in early April 2004 Mr McFarland developed an acute adjustment disorder with anxious mood. Dr Reddan stated that the question remains as to whether Mr McFarland’s anxiety arose from the reasonable efforts of his team leaders and/or managers to deal with his behaviour or whether he was victimised. Dr Reddan identified Mr McFarland as having some personality vulnerabilities or traits which would lead to a perception that he would disproportionately escalate any disagreement or dispute beyond the confines or boundaries of the matter at hand. Dr Reddan opined that Mr McFarland’s adjustment disorder resolved during the late 2004 or early 2005.
13. On 25 August 2005 Allianz Australia Insurance Limited determined that Telstra Corporation Limited is not liable to pay compensation to Mr McFarland.
14. Mr McFarland sought a review of that determination. On 18 January 2006 the Senior Case Manager, Reconsiderations/Permanent Impairment of Allianz affirmed the decision (T27).
15. Mr McFarland has sought a review of that decision by this Tribunal.
Material before the Tribunal
16. The following documents were admitted into evidence:
Exhibit 1 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Report by Dr Reddan dated 7 November 2006
Exhibit 3 Report by Dr Larder dated 13 July 2006
Exhibit 4 Report by Dr Larder dated 16 May 2007
Exhibit 5 Letter from Dr Deed dated 9 July 2002
Exhibit 6 Clinical notes of Dr Deed including entry dated 9 July 2002
Exhibit 7 Clinical notes of Dr Orth including entry dated 6 April 2000 and 7 September 2000
Exhibit 8 Copy of T20 folio 145 – written warning dated 30 January 2004
Exhibit 9 Notes from meeting (replace T20 folio 168 – 172)
Exhibit 10 Email from R Entrich dated 20 October 2003
Exhibit 11 Email from R Entrich to L Brien dated 29 January 2004
Exhibit 12 Email from R Entrich to Chan, Siew-Lan dated 28 February 2004
Exhibit 13 Email from R Entrich to L Brien dated 30 January 2004
Exhibit 14 Email from R Entrich to L Brien dated 25 March 2004
Exhibit 15 Letter from Robyn including 4 pages of transcript from the meeting on 6 April 2004
Exhibit 16 Email from Chan, Siew-Lan to L Brien dated 25 March 2004
Exhibit 17 Collection of 4 letters from L Brien, one undated, and the others dated 13 April 2004, 21 April 2004 and 5 May 2004
Exhibit 18 Draft of final written warning addressed to the applicant
Exhibit 19 Email from Chan, Siew-Lan to L Brien dated 5 March 2004
Exhibit 20 Email from M Marshall to L Brien dated 7 April 2004
Exhibit 21 Email from L Brien to M Marshall dated 7 April 2004
Exhibit 22 Medical certificate undated from Dr Deed for applicant valid for 9 July 2002
Issues
17. I have to decide whether Mr McFarland is entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The issues for me to decide in order to make that determination concern the nature (and duration) of any psychiatric condition suffered by Mr McFarland, and whether the condition was caused or contributed to by his employment. If so, is the medical condition excluded for compensation purposes under the Act because the condition resulted from reasonable disciplinary action?
Evidence
Evidence of Mr McFarland
18. Mr McFarland has provided written statements, included at T5 folio 16, PT 20 folio 65 and a statement dated 20 June 2006.
19. Mr McFarland provided oral evidence at the hearing and the following is the gist of his evidence.
6 April 2004
20. Mr McFarland first discussed the events leading up to the meeting of 6 April 2004.
21. He said that his immediate supervisor, Ms Entrich made it known to him in early 2004 that she was watching and excessively monitoring him. The relationship between Ms Entrich and him was not a productive one. She pointed out on one occasion that he was two minutes late and asked why he was in WRAP time for 5 minutes. Upon his return from leave on a separate occasion, Ms Entrich sent a nasty email.
22. Mr McFarland was asked to attend an interview with his supervisor. Mr McFarland said that he requested a list of questions that were to be asked at the interview, however he received no response. He thought the worst at that time, and thought that Telstra staff had finally built a case to fire him in view of what had happened over the last two years.
23. Mr McFarland said that he was distressed and anxious prior to the meeting; he filled a syringe with Domestos but did not inject it.
24. At the meeting Mr McFarland said that he was feeling nervous, intimidated and frightened. He had a suspicion that Telstra was going to sack him. The list of questions put to him at the meeting had nothing to do with his role; all questions were mostly about procedure. Mr McFarland said that he was completely broken down, about one third of the way through the interview. He recalls Robyn (Entrich) stating that she had forgotten to advise him that his answers at the meeting determined his future. Mr McFarland does not remember when he spoke about the suicide attempt on the weekend before the interview.
25. Mr McFarland believes that Patricia Long, who was his witness at the meeting, took very accurate notes of the interview. Ms Long is a personal friend, and on occasions sleeps at Mr McFarland’s home. Ms Long brought Mr McFarland to the Administrative Appeals Tribunal prior to his hearing so that he could see how things are run. Mr McFarland said that Ms Leanne Brien, Ms Entrich’s superior, who was also at the meeting, clearly left a lot of the interview out of her written notes, and he observed that she made few written notes at the time of the interview.
26. Mr McFarland referred to the fact that he was required to listen to phone calls that he had participated in during the interview. He believed that listening to phone calls was permissible for coaching purposes only, and not permissible for disciplinary measures. He believes that the conduct of both Robyn and Leanne was cruel and torturous. In relation to the interview conducted in 2004, Mr McFarland stated that Leanne was very quiet. He considered that her attitude was cold, as he was visibly very upset and yet she did not offer a tissue or a glass or water or a toilet break.
27. Mr McFarland thinks they were having fun interviewing him. Mr McFarland believes that Leanne referred him to the employment assistance program as she saw his condition and recognised that he had a problem.
28. The next day Mr McFarland says that he received a phone call from Leanne stating that the interview needed to be finished. When on the phone Leanne did not enquire about his health. At the end she said that she was sorry that the call had upset him.
29. In relation to abusive phone calls received by Telstra staff, Mr McFarland said that he assumed they were from his flatmate whom he was breaking up with at the time as a result of him taking work issues from Telstra home and dumping on him. Another reason for the break up was the fact that Mr McFarland found out that his partner was doing drugs.
2 August 2000
30. Mr McFarland next discussed his leaving work early on 2 August 2000. In his opinion this was the commencement of his problems.
31. Mr McFarland said that he was feeling unwell and had left work early. He was unable to locate his direct supervisor, Mr Warwick Burman and so told Cheryl Harrington, a colleague that was second in charge of his team, that he was leaving early.
32. Mr McFarland said that he cannot remember whether he went to the doctors or went home first. He recalls receiving a telephone call from Mr Burman the same morning. That phone call awoke him. He was groggy and under the influence of medication. Mr Burman asked if he had told anyone that he was leaving early and Mr McFarland replied that he could not remember. After waking up properly he recalled that he had informed Ms Harrington that he was unwell and was leaving work.
33. Mr McFarland said that he was upset about an email that Mr Burman sent informing other staff of his early departure. That email was leaked to him by a 2IC. Mr McFarland was concerned that his truthfulness was questioned and it made him feel that all who read it would have formed a negative image of him.
34. As to Mr Burman’s comment that ‘we need to do something about him’, Mr McFarland felt that his indicated that they wanted to get rid of him.
35. After notifying the Centre Management, Mr S Kelly, of his concerns, Mr Burman eventually sent another email to the same 50 or so staff that received the first email. Mr McFarland was upset that the email contained the same title reference as the earlier email, which was to the effect that Allan McFarland went home sick without notifying anyone. Mr McFarland believes that this second email reinforced the earlier suggestion that he went home without giving anyone notice.
36. Mr McFarland advised Mr Kelly that he was not satisfied with Mr Burman’s apology, in particular, because he was not a recipient of the email containing the apology, however he was told that Mr Burman would not be directed to issue another apology. Mr McFarland was still upset and so raised the issue with Mr S Fox, Mr Kelly’s manager at the time. Mr Fox told Mr McFarland that he would direct Mr Burman to re-apologize and to address the apology in the form of email to Mr McFarland. Mr McFarland failed to receive any further response from either Mr Burman or Mr Fox.
37. Mr McFarland said that he always got on with Warwick and he thinks that at the time of the email Warwick was under a lot of stress.
38. Mr McFarland was distressed that he personally never received an apology from Warwick. Mr McFarland said that this incident started a downslide of treating him differently from everyone else.
Warning of 20 December 2001
39. Mr McFarland said that the next incident occurred when he received a warning about being in a ‘not ready’ position. Mr McFarland said that he received this warning as a result of leaving his work station and going to the toilet and getting a glass of water. Mr McFarland explained that in an ordinary eight hour shift three breaks were scheduled. There was an understanding that everyone was to get away for five minutes every 45 minutes to go to the toilet, or to make coffee. According to Mr McFarland quite a number of smokers would take breaks, in addition to the allocated breaks, for the purpose of having a cigarette.
40. In his written statement Mr McFarland said that his supervisor Mr Paton issued the warning in spite of his explaining that he had only left the office for five minutes to get a coffee. Mr McFarland said that he was treated unfairly by Mr Paton, and discriminated against by him, as no issue of a similar nature was ever raised in relation to other members in his team, some of whom took smoke breaks on a daily basis.
Overtime allocation
41. Mr McFarland was aware that another worker, Ms Pru Bell, had received a written warning for a different matter, around the same time, however her overtime restrictions were reviewed on a monthly basis, whereas his were reviewed on a three monthly basis.
42. Mr McFarland raised this discrepancy with Mr Paton who was unable to provide a satisfactory reply. Mr McFarland raised the issue with superiors and an interview was arranged with the operations manager Ms Debbie Jones. Mr McFarland requested a copy of Telstra’s policy outlining the time parameters of the withdrawn rights. Mr Paton had failed to provide these in spite of Mr McFarland’s repeated requests. Ms Jones informed Mr McFarland that that information did not exist.
43. Mr McFarland said that at this point he felt extremely upset because he had been treated unfairly and discriminated against, and received no assistance from management. Mr McFarland approached the Centre Manager, Ms Hunter who verbally advised the team leaders that they did not have the discretion to restrict workers’ access to overtime. As a result Mr McFarland’s right to work overtime was reinstated.
44. Ms Hunter’s response reinforced Mr McFarland’s belief that Mr Paton had been treating him unfairly and was discriminating against him.
Warning of 13 May 2002
45. Mr McFarland was called into a meeting with Ms Hunter, and Mr Paton and issued a written warning for being absent from his work station too frequently. Mr McFarland indicated to Mr Paton and Ms Hunter that he needed to leave his work station on a regular basis to ensure adequate circulation in both of his legs, as his doctors suspected that he has varicose veins. Mr McFarland told Mr Paton that he also had to leave for the purpose of toilet breaks, coffee breaks, and to obtain drinking water. Mr McFarland said that he provided medical evidence to support his statements after the interview.
46. Mr McFarland said that in response, Ms Hunter threatened to pension him off as his varicose veins were not the fault of Telstra. Mr McFarland said that he felt threatened by this comment, and this exacerbated his feeling that the staff of Telstra was building a case with the view to terminate his employment.
47. Mr McFarland sought legal assistance, and as a result a letter was sent to Telstra. Mr McFarland said he believes as a result of that letter, management did not harass or bully him until November 2002.
26 November 2002
48. Mr McFarland said that after returning to work from a period of six to eight weeks leave he found himself having difficulty with work as Telstra had revolutionized the way that contracts were applied. He asked for assistance from his then team leader Ms Entrich but received none.
49. Ms Entrich made a complaint to Telstra Centre Manager, and Ms Brien requested he attend a meeting. Mr McFarland refused on the grounds that he had “previous poor experiences” with Telstra management.
September 2003
50. Mr McFarland was warned in relation to his transferring of calls to other departments and then staying on the call to listen. He said that at times this was an acceptable policy however Telstra changed the rules.
Monitoring of phone call in October 2003
51. Mr McFarland was reprimanded for bridging to a sale prior to answering a customer’s enquiry. Mr McFarland said that he was under pressure as a result of Telstra’s policy to make sales; however he did answer the enquiry as well. Mr McFarland said that he just mixed up the order of things.
52.
Mr McFarland walked past Ms Entrich’s desk and noted that she had listened into this call, and had allocated a zero rating to him. Mr McFarland said that he was very upset; he had never received a zero rating before. Mr McFarland felt that it was Ms
Entrich’s fault, as she had not coached him properly, and he was not aware of the script he was supposed to read to the customer. Mr McFarland felt that Ms Entrich was setting up a case to make him fail.
53. Mr McFarland said that he approached Ms Entrich calmly; he wanted an explanation for the zero rating. When talking with Ms Entrich he felt that she was out to get him and there was no point in him even trying. He became upset with Ms Entrich and is now not proud of his behaviour. He does not recall saying that she was not a good coach, he did not use the word useless, and however he does recall mentioning that he knows that she is an alcoholic. Mr McFarland does not recall verbatim what he said. Mr McFarland recalls feeling very irrational and upset; he realises that he should not have sworn. He does not recall Ms Entrich showing him statistics from other business areas, and he does not remember how Ms Entrich looked.
54. Mr McFarland received a written warning in relation to his conduct.
Written warning 5 November 2003
55. Mr McFarland received a written warning as a result of a complaint made by Ms Entrich. Ms Entrich made it clear to him that she would be watching everything he did. Mr McFarland said that Ms Entrich was unreasonably nitpicking everything he did, as a result he was exhausted and became more anxious.
56. He wanted out of Robyn Entrich’s team because “she was bullying me, her coaching ability was not good, and no real attempt was made by her to help” him. Robyn would not let him leave.
Written warning 30 January 2004
57. Mr McFarland received a written warning from Ms Entrich regarding personal phone calls that he had made during his shift, and for not focusing on the needs of customers and other generalised complaints. Mr McFarland found the warning to be general and not specific to any of his behaviour. Mr McFarland felt the warning was for the purpose of intimidation and bullying by Telstra, and in particular Ms Entrich.
58. Mr McFarland said that he is required to make phone calls to customers and also to make test calls. According to Mr McFarland, even if a staff member makes open a line for a few seconds, and then hangs up to accept an enquiry, the attempt at a telephone call registers as a call made. As a result he was noted to have opened about 21 outside lines during his shift.
59. Mr McFarland was also reprimanded for pressing the not ready button, which has the effect of a call being automatically sent to the beginning of the queue. Mr McFarland does not recall hanging up on any customer. He does recall deactivating a customer’s service for which Ms Entrich told him at the time she was grateful as his behaviour brought an old contract to light. Sometime later he realised that Ms Entrich was clearly being sarcastic with him at the time, as she later said that she had to smooth things over with the customer. Mr McFarland told Ms Entrich that he did not know that he disconnected the client.
60. As a result of the warning Mr McFarland said that he took two weeks off work. Upon returning to work Mr McFarland received an email from Ms Entrich which stated that she is sure that he will have a few hundred emails to read when he returns and so she thought she would add this (email) to them. Mr McFarland believes the purpose of Ms Entrich’s email was to add further stress to what she knew would be a stressful situation for him.
Medical evidence
Dr Larder
61. Dr Larder is a psychiatrist. He gave evidence by telephone before me. His reports are included (exhibit 3, exhibit 4, T8 and T9). Dr Larder treated Mr McFarland from 11 May 2004. Dr Larder stated in his report dated 16 May 2007 that therapy for the mental disorder that Mr McFarland developed consequent to the stressors reported at his workplace spanned 15 months, and ended on 3 August 2005. Dr Larder confirmed that he considered Mr McFarland had been suffering from chronic adjustment disorder, as a result of various issues that resulted from the Telstra workplace. Dr Larder appears to have come to this conclusion on the basis of exclusion of other potential causes, including upbringing, personal relationships, past forensic history and illicit drug use (exhibit 3).
62. At the hearing Dr Larder said that Mr McFarland had found various events at his workplace since 2000 distressing. Dr Larder said that from his notes and memory he did not ever consider that Mr McFarland had any of the features of paranoid personality disorder.
63. Dr Larder confirmed that he had not read any of the statements from any other employees of Telstra. Dr Larder acknowledged that he had not heard the other side of the story. He said that the accounts of events given to him by Mr McFarland were his accounts of various experiences in real time, and at no time did he gain the impression that Mr McFarland was psychotic, inventing certain events, or malingering or lying. Dr Larder considered the applicant a genuinely distressed patient who needed assistance.
Dr Reddan
64. Dr Reddan is a psychiatrist. Her report dated 7 November 2006 is included as Exhibit 2. In that report Dr Reddan observed that Mr McFarland’s thought content revealed a focus on his rights and a tendency towards persecutory ideation (exhibit 2), however she noted there was no evidence of bizarre or delusional thinking. Dr Reddan opined that Mr McFarland’s judgment for day to day matters may at times be overly influenced by his perceptions and tendency to escalate situations.
65. Dr Reddan gave evidence in person at the hearing. The following is a summary of the evidence she provided. Dr Reddan confirmed that she believed the applicant suffered from adjustment disorder from early April 2004, and that whether the condition was materially contributed to by the applicant’s employment, or whether it was in reaction to reasonable management action depends on what view of the facts one is prepared to accept, which Dr Redden pointed out, was a question for the Tribunal.
66. Dr Reddan said that Mr McFarland had a tendency to sometimes escalate the conflict when responding to enquires of his managers or supervisors, as a result of his own innate personality, which distracts everyone, including himself, from dealing with the issue at hand. Dr Reddan said that she got the impression that Mr McFarland has a strong emphasis on his own rights.
67. Dr Reddan said that she did not consider Mr McFarland had paranoid personality disorder; however she understood why Dr Samuell would have come to that conclusion. Dr Redden opined that Mr McFarland probably tended to see more persecution than was always there and responded in a way that was confrontational and exacerbated conflict.
68. In relation to the email in 2000 referring to Mr McFarland’s absence from the workplace, Dr Reddan opined that it was not an abnormal reaction for someone in Mr McFarland’s position to be agitated or concerned about it. Dr Reddan said that there was no evidence that that incident, of itself, led to any sort of disorder.
69. Dr Reddan said that each incident referred to by Mr McFarland, in of itself, probably was not necessary, but it was more the whole picture.
70. Dr Reddan said that the mere fact that there was a meeting about whether to terminate his employment or not, was enough to explain the development of adjustment disorder. Dr Reddan said that she did not consider what went on in the meeting or the letter that was sent to Mr McFarland subsequently were particularly relevant as it was the fact that the meeting was being held at all which is why Mr McFarland reacted.
Dr Samuell
71. Dr Samuell is a psychiatrist who examined Mr McFarland at the request of Allianz, the Insurance Company investigating his claim for workers’ compensation. Dr Samuell provided evidence at the hearing by telephone. His report provided is dated 14 July 2005 (T21). In that report Dr Samuell said that Mr McFarland’s manner was intensive and aggressive, and that he was very much preoccupied with his perceived injustices. Dr Samuell observed that Mr McFarland remembers the injustices against him in exquisite detail but seems to have little recollection of the matters for which he is criticised. Dr Samuell said that the manner in which Mr McFarland responded to his employer was likely to have been maladaptive, and that he would be entitled, belligerent and inflexible in the face of perceived threats. Dr Samuell opined that it is Mr McFarland’s perception of his difficulties, rather than the fact that problems have occurred in the workplace, that have caused his psychological problems. Dr Samuell opined that Mr McFarland is the predominant architect of his own suffering.
72. Dr Samuell opined that Mr McFarland suffers from a personality disorder, not otherwise specified with paranoid features, and that it is likely that this condition pre-existed his claim and that he could be working without impairment.
73. Dr Samuell acknowledged that it would be normal for a person to be concerned about the contents of the 2000 email relating to Mr McFarland’s absence, and also to comments that he was going to be pensioned off. Dr Samuell said that he accepts anyone would be upset about such comments. Dr Samuell said that he concluded Mr McFarland had a personality disorder from his conduct in the interview, as he was rude, and harassing. Dr Samuell also referred to the way the applicant responded to questions, and the limited understanding of the impact of his behaviour that he demonstrated, and concluded that these were indicative of a personality disorder
Evidence of other witnesses
Ms Patricia Long
74. Ms Patricia Long is a Customer Sales and Services Consultant employed by Telstra. She is a work colleague and personal friend of Mr McFarland. She provided a written statement (T25), and gave evidence in person at the hearing. The following is a summary of the gist of her evidence.
75. Ms Long said that Allan asked her to be a witness to the meeting with Ms Brien and Ms Entrich in April 2004. Ms Long said that she recalled that Allan was concerned about the interview; he did not know what it was going to be about and had asked for a list of questions.
76. Ms Long recalled Allan being emotional and upset during the interview. She recalled Mr McFarland asking for the interview to be stopped, and that he mentioned his recent suicide attempt, and that he was red faced and teary.
77. Ms Long estimates the interview went longer than 30 minutes. Ms Entrich was reading from a sheet and Mr McFarland was offered no break.
78. According to Ms Long, Mr McFarland was required to listen to records of phone calls that he had had with clients. She agreed that when Mr McFarland claimed victimisation during the interview that he may have come across as aggressive. Ms Entrich gave the impression that Mr McFarland’s knowledge should have been adequate to handle calls himself that he had routed within the system.
79. Allan was by now visibly crying, sitting down, shaking and defeated, however Ms Entrich kept carrying on and on. After the interview Ms Long went back to her desk. She observed some time later Mr McFarland was crying, and she asked Ms Brien for a taxi voucher. Ms Long recalls saying to Ms Brien that ‘Allan’s a mess’.
80. Ms Long said that she took notes during the meeting and from those notes she formulated a transcript. She believes that she did this within 24 hours of the interview. Under cross-examination Ms Long said that she would have started typing the transcript before she accompanied Mr McFarland to hospital. She is uncertain exactly what became of her hand written notes; however she does not have them now and believes that after typing the transcript she would have destroyed them. Ms Long initially gave evidence that T20, pages 150-163 were the original transcript that she prepared from her hand written notes. Under cross-examination Ms Long said that T20 pages 164-167 may have been the original typed transcript and that she may have retyped the document to make it easier and clearer to read.
81. Under cross-examination Ms Long was referred to discrepancies in the two transcripts – and in response said that perhaps she remembered the reference by Ms Entrich to ‘possible immediate termination’ after she prepared the original transcript. Ms Long said that she recalled Mr McFarland being told half way through the meeting that he may have no job. She said that she would have spoken to Mr McFarland about his concerns a number of times, but she was uncertain as to how many.
82. Ms Long said that she was present at his home when Mr McFarland received a phone call from Ms Brien. Ms Long said that she would have overheard the telephone conversation, and that it was clear that Ms Brien wanted to continue the meeting. Mr McFarland was upset and that is why she stayed with him. Ms Long recalls Mr McFarland receiving another phone call from Ms Brien on his mobile, and work issues were discussed.
83. In relation to the incident on 19 October when Mr McFarland took issue with Ms Entrich for allocating a zero rating, Ms Long said that she was working at the time and observed the interaction. Ms Long said she could tell that Mr McFarland was not happy that he was rated zero for a call, he did swear, she heard him use the ‘F’ word, but did not hear much else, as she was taking calls at the time.
Ms Robyn Entrich
84. Ms Entrich is a team leader employed by Telstra. She provided a signed statement dated 6 July 2005 (T20 folio 92-96). Ms Entrich provided evidence at the hearing in person and the following is a summary of the gist of that evidence.
85. Ms Entrich said that Telstra Mobile is a very dynamic area to work in. Staff do, on occasions, miss out on training, however this is compensated for by weekly training sessions. Ms Entrich said there is always a team leader on site who can address any problems a member of the team may experience. Ms Entrich was unaware whether Mr McFarland had missed out on any regular training sessions, however she did check his previous records when she took issue with Mr McFarland’s performance, and saw that the duties that he was failing to perform were the same ones that he had been able to perform in the past.
86. Ms Entrich also pointed out that Mr McFarland had access to an information database on his computer at all times. Ms Entrich said that she did not organise any specific training for Mr McFarland. Training is performed nationally at scheduled times and it is difficult orchestrating training outside of this schedule, because of the nature of a call centre being required to be available to receive calls.
87. Ms Entrich does not recall receiving Mr McFarland’s email about him having difficulty with product changes, however she pointed out that when anyone returns from leave they are allocated time to go through any changes as an automatic process, and this would have been the case with Mr McFarland. Ms Entrich does not believe that any staff could possibly be familiar with all of Telstra’s products, however Mr McFarland must have been able to use the internet assistance successfully because his records demonstrated that he had performed all the jobs successfully in the past, and there were no significant changes during his period of leave.
88. When Mr McFarland had an issue with his lack of access to overtime, and was emailing managers outside of the normal chain of command, Ms Entrich was asked to interview him and inform him that he must follow Telstra’s Fair Treatment Policy when making such complaints. During the interview Mr McFarland counter attacked her about information she provided relating to Telstra’s fair treatment process. She had never experienced this sort of behaviour before. What shocked her was not that he asserted his rights; rather it was that Mr McFarland was confrontational, trying to make her feel inadequate, talking over the top of her and not allowing her to finish her sentences.
89. As well as receiving adherence reports about all staff under her supervision everyday, Ms Entrich is required as supervisor to monitor call quality, something she does on each staff member approximately every three months. When performing this duty routinely Ms Entrich heard Mr McFarland take a call from a woman who rang to enquire about her bill. Mr McFarland changed the customer’s product without reading her a script, a necessary legal requirement.
90. As a result, Ms Entrich gave Mr McFarland a zero rating, and he then verbally abused her for the remainder of his shift (approximately 4 hours). Mr McFarland kept returning to her desk swearing, and leaning over the top of her. Ms Entrich recalls Mr McFarland saying that he heard that she lost her last job because of her drinking. Ms Entrich said that the incident occurred on Sunday when limited management was present. Patricia Long was located in a position that would have enabled her to hear Mr McFarland’s abuse.
91. Ms Entrich said that on 30 January 2004 Mr McFarland was given a written warning for behaviour including placing personal calls to his own phone number during working hours, disconnecting customers, taking himself out of the call queue for extended periods and not focussing on customer needs. Mr McFarland’s behaviour would have come to Ms Entrich’s attention as the result of Centre operations highlighting it to her. Reports are regularly generated about staff operations, and about out of ordinary behaviour. Those reports highlighted to her staff behaviour and conduct that fell outside acceptable parameters. It is Ms Entrich’s duty to talk with each person highlighted.
92. Around this time it was noted by Centre operations that a series of very short calls had been answered by Mr McFarland, investigation of which showed that he was inappropriately putting the calls back in the queue or diverting them to departments that did not exist.
93. In relation to the list of questions requested by Mr McFarland prior to the meeting, Ms Entrich said that Ms Brien advised her that she in turn had been advised by human resources that it was not necessary to respond to Mr McFarland’s request for a list of questions.
94. In relation to the interview held between Mr McFarland, herself and Ms Brien, Ms Entrich said that Mr McFarland’s mood was calm as well as challenging and threatening. He continued to respond to her by saying he did not know how to perform the tasks discussed, and that he had never been shown. Ms Entrich said that Mr McFarland did not cry, and had anyone in his position done so there is no way she would have persisted with the interview. Ms Entrich found the interview challenging. Mr McFarland questioned her coaching capacity.
95. Ms Entrich said that she was fairly nervous during the interview. She recalls sharing this fact with Mr McFarland, who in response yelled at her ‘you’re nervous – I tried to commit suicide last night’. Ms Entrich took Mr McFarland’s response to be an act of aggression; she did not take it to be a serious report that he had attempted suicide. Rather she thought it was an attempt to take control of the interview. Ms Entrich explained that whilst only three calls can be chosen for assessment under the agreement between staff and Telstra, supervisors have an obligation to customers to investigate discrepancies, such as a number of short calls.
96. When the issue of abusive phone calls came up, Mr McFarland asked Ms Long to leave the room. At that point he became upset and nervous and said that he had been trying to get rid of his partner Gio but was unable to do so. Ms Brien offered to ring personnel assistance however Mr McFarland said he was going to go to hospital. The issue of abusive phone calls was not pursued by management as the phone calls were made outside of Mr McFarland’s working hours.
97. Ms Entrich said that the transcript prepared by Ms Long did not represent her impression of the interview.
Mr Paton
98. Mr Paton was Mr McFarland’s team leader for approximately one year. He provided a written statement (T20 folio 87-90) in which he said that during this time he found Mr McFarland’s attitude confrontational in regard to management issues and work direction in general.
99. Mr Paton gave evidence in person at the hearing and the gist of his evidence is summarised as follows.
100. Mr Paton does not recall the exact details of all of the written warnings given to Mr McFarland. Warnings are removed from staff files after 12 months. Mr Paton does recall Mr McFarland being issued a warning for leaving his work stations to get morning tea. Mr Paton said Mr McFarland was also seen by another supervisor across the road when he should have been at his work station. At the time overtime was made available to staff and confirmed at the manager’s discretion, so Mr McFarland was not given overtime, and the denial of such was a disciplinary measure. Mr Paton said that he was approached by Pru Bell and Mr McFarland at his deck and questioned about the way they were being treated differently. Mr Paton replied that this was not the appropriate forum for such a discussion. Mr Paton said that the system of refusing to allocate overtime to staff that had disciplinary issues was passed to him by previous managers. If a member of the team was unable to perform their whole job during core hours, there was no point in allocating extra overtime to that individual.
101. Mr Paton said that Telstra moved the call centre to Roma Street during the time Mr McFarland was under his supervision. Mr Paton put a mud map up on display prior to the move and staff were invited to make representations if they objected to their proposed seating arrangements. Mr McFarland made no such representation. Prior to the move Mr McFarland was facing away from Mr Paton, who was sitting against a wall. Following the move Mr McFarland was deliberately seated in Mr Paton’s line of sight, given his history.
102. On the first day Mr McFarland presented for work at the new premises he sat in someone else’s seat. Mr Paton advised him to move, however he refused. Mr Paton told Mr McFarland that he did not have an option. Mr Paton approached Kelly Hunter and the three of them had a meeting. Mr Paton attended as an observer. Ms Hunter told Mr McFarland that he did not have a say about where his work station was located.
103. At the meeting Mr McFarland brought up the fact that he suffered from thrombosis in his legs, and mentioned that he was going overseas and was concerned about flying. That was the first time Mr Paton had heard that Mr McFarland had a problem with his legs. Mr Paton does not recall Ms Hunter threatening to pension Mr McFarland off.
104. Mr Paton said that he never received the letter from Mr McFarland’s doctor (exhibit 5), and that had he done so, he would have organised a return to work consult be brought in with the intention of modifying Mr McFarland’s work situation.
Ms Leanne Brien
105. Ms Brien is a sales support manager for Telstra. She provided a written statement (T20 folio 98-100) and gave evidence in person at the hearing. The following summary is the gist of that evidence.
106. Ms Brien recalls Ms Entrich being anxious and nervous in having to deal with Mr McFarland. Ms Brien said that Mr McFarland was not upset in the meeting in April 2004, rather he was aggressive. Ms Brien does not recall Mr McFarland making a statement about having attempted suicide. At no time did Ms Brien consider it was necessary to offer Mr McFarland a break. When the meeting relating to misconduct concluded Pat Long did not remain. Mr McFarland asked Ms Long to leave. Mr McFarland became visibly upset when the issue of abusive phone calls was then discussed. There was a change in his demeanour; he became raw and emotional, regretful and sorry. Ms Brien offered to take Mr McFarland to hospital, when he expressed a desire to go. She gave him a taxi voucher and made a commitment to phone him the next day.
107. Ms Brien recalls Mr McFarland being unhappy that she rang him the next day; he requested that she not phone him at home and that she put everything in writing. Several meetings were scheduled in order to finish dealing with the abusive telephone call issue, however they did not take place. Human resources informed Ms Brien that the matter of abusive phone calls should be dealt with informally, and for that reason no notes were made at the interview in relation to that matter.
Consideration of the Issues
108. Sub-section 14(1) of the Act creates liability to pay compensation, subject to other provisions of the Act, to pay compensation in respect of an injury suffered by an employee that results in death, incapacity or impairment.
What condition if any did Mr McFarland have?
109. Both Dr Reddan and treating psychiatrist Dr Larder consider that Mr McFarland developed adjustment disorder in 2004. Dr Redden has specified the clinical onset as being early April 2004. Dr Larder identified that a condition existed in May 2004, and named the condition in his report dated 18 May 2004, however did not specify a clinical onset. I accept that this evidence is consistent with the clinical onset identified by Dr Reddan. Dr Reddan opined that this condition resolved by late 2004/early 2005. Dr Larder said that treatment ceased on 3 August 2005 and incapacity ceased in August 2006.
110. Dr Samuell considered Mr McFarland had a personality disorder with paranoid features, however neither Dr Larder nor Dr Reddan concurred with his opinion, although Dr Reddan said that she understood how Dr Samuell came to his conclusion, because Mr McFarland had certain personality traits.
111. On the basis of the expert psychiatric evidence before me, I find that Mr McFarland developed an adjustment disorder in early April 2004, and that the condition resolved on or before August 2006.
Was Mr McFarland’s adjustment disorder an injury?
112. Section 4 of the Act provides the following definitions:
Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.113. In order to determine whether Mr McFarland’s condition comes within the definition of injury, a close examination of the cause of his condition is necessary.
114. Mr O'Driscoll (Counsel for the Applicant) argued that whilst the individual stressors in themselves may not have been responsible for causing Mr McFarland’s mental disorder, the nature and relationship of his employment as a whole, between 2000 and 2006 was responsible, that relationship was fractured in 2000, and the ultimate fracture occurred at the meeting on 6 April 2004. It was argued that there are a variety of personalities in any work place and management is required to deal with them, however Telstra management at times felt challenged by Mr McFarland, and on many occasions responded to Mr McFarland’s assertive personality in a manner that was unreasonable and unable to be defended.
115. Mr O’Driscoll made much of the evidence of Dr Reddan, the essence of which he said was that no one individual incident caused Mr McFarland’s condition. Therefore, according to Mr O’Driscoll, although some of the incidents may have involved disciplinary action, I am not bound to apply the principle from the case of Hart v Comcare (2005) 145 FCR 29.
116. The respondent argued that I should reject the evidence of the applicant, as it was not credible, and not supported by any of the Telstra employees, with the exception of Ms Long. Mr Clark (Counsel for the respondent) went to great lengths to discredit Ms Long’s evidence. Mr Clark argued that any condition Mr McFarland may have suffered from was a consequence of his own personality structure, or the result of reasonable disciplinary action taken by Telstra, and that Telstra had acted appropriately and reasonably at all times.
117. Dr Reddan and Dr Larder opined that Mr McFarland’s adjustment disorder occurred as the result of conflict he experienced during his employment at Telstra from 2000 onwards. The evidence of both Dr Larder and Dr Reddan is that no one event was the trigger of Mr McFarland’s condition, rather it was a combination of events over a period of time.
118. I found both the reports and evidence of Dr Larder of limited assistance. Dr Larder opined that as a result of various issues which resulted from the Telstra workplace, Mr McFarland developed adjustment disorder. Dr Larder appears to have come to this conclusion solely on the basis of exclusion of other potential causes, including upbringing, personal relationships, past forensic history and illicit drug use (exhibit 3).
119. Dr Larder provided very limited information about the history of the stressors Mr McFarland claimed to have experienced during his employment with Telstra, and stated “a detailed account of the complaints he may have uttered on each occasion does not exist” (exhibit 3). Dr Larder acknowledged that he had not heard the other side of the story, and the limited clinical records provided by Dr Larder suggest that he may have taken few notes most times Mr McFarland consulted him. For these reasons I found Dr Larder’s evidence of very limited assistance when addressing the question of causation. Dr Larder’s analysis appears to have been confined to the restraints of a doctor who accepted the description of the conduct of Telstra’s management team given to him by Mr McFarland without question, yet failed to detail what he regarded as the causative incidents for the condition he diagnosed.
120. Whilst Dr Larder quoted long passages of Mr McFarland’s evidence in his report dated 13 July 2006, that does not assist me in understanding the clinical reasoning behind Dr Larder’s opinion or assessment in determining the cause of Mr McFarland’s adjustment disorder.
121. Dr Reddan, in contrast, provided a very detailed and lengthy report, in which she provided great detail about the incidents Mr McFarland claimed. Dr Reddan qualified her opinion by saying that whether Mr McFarland’s adjustment disorder resulted from victimisation from Telstra staff would depend on the arbitrator accepting Mr McFarland’s version of events. Dr Reddan refused to comment on the veracity of Mr McFarland’s version of events.
122. I note Mr McFarland complained of most of the same incidents to Dr Samuell that he reported to Dr Reddan.
123. On the basis of the expert medical evidence before me, I find that Mr McFarland’s adjustment disorder was not the result of a single incident, however the incidents described by Mr McFarland and included in the reports of Dr Reddan and Dr Samuell all played a material contribution to the development of his condition. This does not mean that I accept Mr McFarland’s version of those events.
124. Dr Reddan identified features of Mr McFarland’s personality that were consistent with those features identified by Dr Samuell. Whilst Dr Samuell considered Mr McFarland to be suffering from a personality disorder, Dr Reddan identified features of Mr McFarland’s personality that would provoke and escalate workplace disputes; however she did not go as far as diagnosing a personality disorder. Dr Larder saw no evidence of personality disorder, however I am mindful of the fact that he saw the applicant in the context of having being referred by a trusted general practitioner, and I believe that he was presented with different evidence than the other two psychiatrists. Dr Reddan explained that people will sometimes behave differently in different situations, and Dr Larder may understandably therefore not have been exposed to the side of Mr McFarland that both Drs Redden and Samuell, who interviewed him at the request of either the insurance company or the respondent, were.
125. I am mindful of the decision in Wiegand v Comcare (2002) 72 ALD 795 in which it was held that where an actual event in the workplace creates a perception in the mind of an employee, if that perception contributes to or aggravates a condition, whether the perception was reasonable or not, the condition will be compensable. That however was not the case for Mr McFarland. Rather I find it was Mr McFarland’s underlying personality which orchestrated and created most of the incidents referred to by Mr McFarland, and often resulted in management being required to address his work behaviour and performance. In doing so, I find that Telstra management staff acted appropriately at all times, and certainly did not victimise or bully Mr McFarland. I further find that Mr McFarland’s perception that he was victimised or bullied by the staff of Telstra as he claims is not objectively reasonable.
126. I considered each of the events which Mr McFarland claims have lead to his adjustment disorder.
2 August 2000
127. Given Mr Burman returned to his work station to find Mr McFarland absent I find nothing unusual or inappropriate about his telephone call to Mr McFarland. The email Mr McFarland claims he took offence to, stated that Mr Burman had spoken with Mr McFarland earlier that day about making a personal call to payroll when there were 40 calls in the queue.
128. Given Mr Burman’s concern about the private phone call, and the fact that Mr McFarland could not recall informing any person of his departure when he initially discussed the situation by telephone with Mr Burman, I consider the email, including the statement ‘we need to do something about him’, not a reflection of bullying and harassment, rather a genuine concern by a supervisor about unacceptable behaviours. I do not accept Mr McFarland’s evidence that his perception was that the email reflected an intention to attempt to sack him.
129. Whilst the apology sent by Mr Burman suggests that his initial concerns were perhaps circulated to a wider audience than would necessarily be appropriate, Mr Burman corrected his email rapidly after being alerted to Mr McFarland’s concerns.
130. Mr McFarland had the opportunity to rectify any misperception that he went home with out notifying anyone, and I find that his prevailing concern that he did not personally receive an apology is hardly an issue that I would regard as one reflecting bullying or victimisation, and is an example of Mr McFarland’s attitude of righteous indignation, which he displayed throughout the entire hearing.
131. Mr McFarland did not convince me that Mr Burman did not have good reason to have concern about his personal phone calls and previous early departure without notice.
132. Mr McFarland stated that he previously got along well with Mr Burman. This is not consistent with Mr Burman victimising or harassing Mr McFarland, rather it is consistent with Mr Burman having genuine and appropriate concerns about Mr McFarland’s behaviour, having validated these concerns after discussion with other supervisors, and after doing so, having communicated his concerns appropriately with other supervisors.
133. In my opinion, had Mr Burman not taken the course of action that he did, given his state of knowledge at the time, he would have been negligent in his duties. Whilst his communication may have overstepped the necessary mark, in that it was perhaps distributed to a few more supervisors than was strictly necessary, Mr Burman took rapid steps to apologise for his error, and there is no suggestion that the effect of Mr Burman sending an email to more staff than necessary had any detrimental effect on Mr McFarland, or that he continued to perceive that it did.
Written warning issued on 20 December 2001 and lack of overtime
134. I accept the evidence of Mr Paton that Mr McFarland was issued a warning about being absent from his work station due to the fact that this was a regular event, and this behaviour was not tolerated by any staff.
135. Mr McFarland’s claim that other staff, in particular smokers, took similar breaks and were not reprimanded, is not supported by any of the evidence before me.
136. Mr Paton presented as a very credible and pragmatic witness. Mr McFarland did not lead any evidence that would indicate to me that Mr Paton either victimised and harassed him, or had a motivation to do so.
137. Mr McFarland’s concern was not that his access to overtime was restricted, rather it was about the timing of review of overtime restrictions being different for him than one other staff member. I accept Mr Paton’s evidence that each case is an individual matter, and no discrimination was made against Mr McFarland.
138. I am unaware of the reason for the written warning being given to the other staff member Mr McFarland has referred to, however it is clear that Mr McFarland’s stress was generated by the fact that his supervisors did not share his personal belief that no matter what the issue is, when given a written warning, all staff should be reviewed in relation to their overtime rights, on the same time intervals.
139. I find this expectation unrealistic and that it is unreasonable and not a perception created by his employment, rather a perception created by his own personality traits. It certainly was not a case of discrimination or victimisation, and was clearly consistent with the practice of his then supervisor, Mr Paton and also other managers. Mr McFarland expressed no surprise that his access to overtime was restricted. I do not accept Mr McFarland perceived the incident to be one in which he was victimised or bullied.
Warning 13 May 2002
140. I accept the evidence of Mr Paton and Ms Hunter that Mr McFarland provided no evidence at any time to support his contention that his absence from his station was in part due to his circulation in his legs.
141. Mr McFarland claimed that this was one of many reasons he left the work station, others included his need for drinks, coffee breaks and toilet breaks. These are needs shared by most employees, and the fact that the behaviour of Mr McFarland was noticed by his supervisors, indicates he was taking more than would be regarded as reasonable breaks, and for that reason his behaviour came to the attention of his supervisors.
142. Mr McFarland was not being victimised or bullied, rather he took it upon himself to allocate himself regular breaks for amongst other things, a medical condition, which at the time he may have believed to be genuine, although I very much doubt that. Mr McFarland did not have the courtesy to discuss his medical situation with his supervisors prior to deciding he needed more time away from his station than usual. Further I note that the medical evidence is that there is nothing wrong with Mr McFarland’s leg circulation. This further weakens the credibility of Mr McFarland’s version of events, and does not lend support for his claim that he was victimised and bullied, or that he perceived that he was victimised or bullied.
28 November 2002, September 2003, and monitoring October 2003
143. I found Ms Entrich a most credible and genuine witness. When giving evidence she conveyed an attitude of a highly responsible employee of Telstra who rather than wanting to victimise or bully anyone, wanted to achieve results and get the job done. Ms Entrich had on a number of occasions been clearly very emotionally distressed as a result of having to deal with Mr McFarland. Ms Entrich was nearly in tears at the hearing on many occasions when she was asked to discuss her interactions with Mr McFarland. Ms Entrich presented as a pragmatic, conscientious, rational and sensible woman. I have no doubt that she would have nothing to do with either bullying or harassing any employee in any circumstance, though I did gain the impression that she would be keen to see the departure of staff that consistently refused to pull their weight and performed their duties inappropriately. Ms Entrich has an obvious commitment to customer service, and it was clear that she was of the opinion that Mr McFarland did not share her commitment.
144. I accept Ms Entrich’s evidence that Mr McFarland performed poorly when she listened to his work as part of her duties, and I accept her evidence that Mr McFarland continued to berate and abuse her for hours after he became aware that she had allocated him a rating of zero.
Meeting of April 2004
145. I have no doubt that Ms Entrich and other supervisors found it unpleasant, but necessary to monitor Mr McFarland’s behaviour during the course of his employment whilst he was under their direct supervision. That is clear from the evidence of all Telstra staff concerned, with the exception of Ms Long who was an unconvincing witness. Ms Long is no doubt a loyal friend of Mr McFarland; however her evidence to the Tribunal was not persuasive. I find that Ms Long altered what she said was her original typed version of events of the interview in 2004, for the reason of assisting Mr McFarland’s claim. I do not accept her second transcript as an accurate account of events. It is inconsistent with Ms Brien’s transcript, varies significantly from the earlier transcript provided by Ms Long, and inconsistent with the evidence of Ms Entrich and Ms Brien. Further Ms Long was unconvincing when challenged about the discrepancies by the respondent. At best, with the passage of time, Ms Long has been influenced by what she now perceives to be a version of events that is extremely favourable to Mr McFarland’s claim albeit very inconsistent with the version of events given by the other witnesses.
146. In contrast Ms Brien was a credible, straightforward and reliable witness, prepared to admit absences in her memory when they occurred. I accept the evidence of both Ms Entrich and Ms Brien that Mr McFarland showed no distress at the interview until after Ms Long left and the issue of abusive phone calls was raised. I find that the actions of his then partner Gio, and not Telstra, lead to Mr McFarland becoming distressed in the interview on 2004, and it was for these reasons he subsequently took time off work.
147. Whilst I accept that Mr McFarland may have been concerned about his future employment prospects with Telstra by the time he attended the meeting in April 2004, there is nothing surprising or exceptional about this, and certainly nothing that could be said to be the result of anything except Mr McFarland’s own behaviour. By this stage Mr McFarland had received numerous written warnings. It is clear that all staff would have been made aware that a possible option of any employer dissatisfied with the performance of their staff is dismissal of that staff member. This fear was generated not by Telstra, but by Mr McFarland’s continued inadequate performance and refusal to comply with normal and reasonable expectations, and his tendency to provoke and escalate situations. Any role that Telstra may have played in the perception Mr McFarland held was the result of reasonable disciplinary action. In that regard, following the decision in Hart I would be bound to find that Mr McFarland’s adjustment disorder was not a condition that met the legislative definition of injury.
148. For these reasons the claim must fail. I affirm the decision under review.
I certify that the 148 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ..................[sgd]...........................................................
F. Kamst, Legal Research Officer
Date/s of Hearing 31 May 2007, 1 June 2007 and 8 June 2007
Date of Decision 13 August 2007
Counsel for the Applicant Mr G O’Driscoll
Solicitor for the Applicant Hall Payne Lawyers
Counsel for the Respondent Mr C ClarkSolicitor for the Respondent Sparke Helmore
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