Michelle and National Australia Bank Limited (Compensation)
[2021] AATA 2356
•16 July 2021
Michelle and National Australia Bank Limited (Compensation) [2021] AATA 2356 (16 July 2021)
Division:GENERAL DIVISION
File Number: 2018/3360
Re:Raymond Michelle
APPLICANT
AndNational Australia Bank Limited
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:16 July 2021
Place:Melbourne
The decision under review is affirmed.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
CATCHWORDS
COMPENSATION – psychological condition – ailment is a disease – whether contributed to, to a significant degree, by employment – whether reasonable administrative action exclusion applies – decision affirmed
PRACTICE AND PROCEDURE – late application for adjournment – General Practice Direction considered – procedural history of the application considered – no compelling or exceptional reason advanced for adjournment
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi [1996] FCA 1587
Hart v Comcare [2005] FCAFC 16
Keen v Worker’s Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Mununggurr v Comcare [2020] FCA 1786Wiegand v Comcare [2002] FCA 1464
SECONDARY MATERIALS
Administrative Appeals Tribunal General Practice Direction
Administrative Appeals Tribunal Guide to the Worker’s Compensation Jurisdiction
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
16 July 2021
BACKGROUND
Mr Michelle lodged with the Tribunal on 14 June 2018 an application for review of the decision of a delegate of the Respondent, dated 18 April 2018, which affirmed an earlier decision that denied liability for his workplace injury.
There is no dispute between the parties that Mr Michelle developed a psychological condition due to certain events at work, although the specific timing of the injury is disputed. The denial of liability for compensation was based on a determination that Mr Michelle’s condition arose from reasonable administrative action, taken in a reasonable manner in respect of his employment.
Mr Michelle was, at the relevant times, an executive with the National Australia Bank (NAB) with responsibility for Local Area Markets (LAMs), being regions comprised of a number of branches. There are several separate groups of incidents which are said to have contributed to Mr Michelle’s condition, occurring between early October 2016 and late October 2017. They include an investigation into the conduct of other staff members, and aspects of Mr Michelle’s performance as a manager and conduct at a trivia night. Mr Michelle lodged a complaint with the bank about his treatment.
The incidents coincide also with formal performance appraisal of Mr Michelle and the Applicant was also issued a conduct warning in October 2017. Mr Michelle ceased work on 28 October 2017 and did not return, and lodged a claim for compensation on 17 November 2017. He was diagnosed with a major depressive condition in December 2017.
The following material was lodged on Mr Michelle’s behalf:
(a)a Statement of Facts, Issues and Contentions (SFIC), dated 18 October 2019;
(b)a submission titled Particulars of Claim – ‘Unreasonable Management Action’, dated 31 July 2020; and
(c)Statement of the Applicant, dated 11 October 2019, together with attachments numbered 1–90 (Exhibit A1).
During the hearing the following further material was lodged on the Applicant’s behalf:
(a)a Response, dated 2 October 2020, lodged by NAB in a proceeding commenced by Mr Michelle in the Federal Circuit Court of Australia (FCA);
(b)emails between NAB staff relating to the trivia night (Exhibit A2); and
(c)a bundle of material relating to the 5 October 2016 meeting, comprising a letter to a NAB staff member and three spreadsheets (Exhibit A3).
The Respondent lodged the following material:
(a)a SFIC, dated 6 November 2019;
(b)T documents and Supplementary T documents;
(c)a bundle of medical records of the Applicant’s General Practitioner Dr John Kondopoulos (Exhibit R1) (Patient Health Summary);
(d)report of Associate Professor George Mendelson, dated 23 June 2020 (Exhibit R2);
(e)report of Associate Professor Mendelson, dated 29 June 2020 (Exhibit R3);
(f)Statement of Alasdair Eaton, undated October 2019 (Exhibit R4);
(g)Statement of Tracey Turner, dated 16 February 2021 (Exhibit R5);
(h)Statement of Mary Scoutas, dated 6 November 2019 (Exhibit R6); and
(i)Statement of Jenny Matthews, dated 14 November 2019 (Exhibit R7).
The hearing took place over five days between 15–19 February 2021.
Preliminary application
On the last business day prior to the hearing, Friday, 11 February 2021, the Tribunal was provided with a copy of correspondence from the Applicant’s representative of the same date responding to questions about hearing preparation. In addition, the Applicant’s representative raised an issue in relation to the date of injury, and, consequently, the Tribunal’s jurisdiction. Subsequently, on the first morning of the hearing, Monday, 15 February 2021, Mr Michelle’s representative made an application for an adjournment.
The issue raised on the Applicant’s behalf concerned whether or not the focus of the claim was events in 2016, or events in 2017; ‘the earlier the injury arose, the further the factual dispute between the parties is narrowed to a more limited number of putative causes for Mr Michelle’s injury’. The correspondence, and the Applicant’s representative at the hearing, cited Mununggurr v Comcare [2020] FCA 1786 (Mununggurr).
The Respondent’s representative strongly opposed the application, submitting there was no jurisdiction question in this matter. It was submitted that on the substantive, factual, issues, the claim for compensation was patently made with reference to a range of events, including from October 2016.
Several procedural matters were also raised in opposition: s 2 of the Administrative Appeals Tribunal Act 1975 (the AAT Act); the Tribunal’s ‘Guide to the Worker’s Compensation Jurisdiction’, part 6.2; and, the Tribunal’s General Practice Direction, part 4.41. It was further submitted that there had been several conferences in this matter, including a compulsory conciliation conference, and that it was open to the Tribunal to dismiss the matter under s 42A(5) of the AAT Act if the Applicant was not willing to proceed.
I declined to grant the adjournment, and in doing so made particular reference to: the procedural history of the matter, which was relatively long; the ordinary restrictions on the granting of late adjournments; and the nature of the claim, which I did not consider posed any issues for the conduct of the review.
LEGISLATION
Liability for compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
Injury is defined in s 5A of the SRC Act to encompass injuries that arise ‘out of, or in the course of, the employee’s employment’, including an aggravation thereof, and a disease suffered by an employee. Disease is defined in s 5B(1) to be an ailment, or an aggravation thereof, ‘that was contributed to, to a significant degree, by the employee’s employment’. Significant degree is defined in s 5B(3) as ‘a degree that is substantially more than material’.
Relevantly for this matter, s 5A(1) of the SRC Act excludes 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’. The following non-exhaustive list of actions is set out in s 5A(2):
(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 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 reasonably done in connection with an action mentioned in paragraph (a), (b), (c), or (d);
(f)anything reasonably 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.
EVIDENCE
The Applicant
The Applicant’s case at the hearing consisted of the tendering of Mr Michelle’s statement and attachments (Exhibit A1). It was also noted that the Applicant would rely on the medical opinion of Associate Professor Mendelson, which was yet to be tendered.
It is reasonable under the circumstances to provide a summary of the issues and evidence set out in Mr Michelle’s statement. I note that the statement alone is of 372 paragraphs over 50 pages, and the attachments total some 388 pages. For this summary, I draw largely on material that formed part of evidence at the hearing, and/or submissions on Mr Michelle’s behalf.
In his statement Mr Michelle provides the following evidence:
(a)that he moved to Australia from New Zealand aged nearly 40. His wife passed away in February 2014, and he has three children aged in their 20s;
(b)he commenced as an employee at NAB in 2000 (the year he arrived in Australia). He was promoted into a regional executive role in 2008 and remained that role in the Peninsula LAM until early 2016. He reported to Ms Scoutas in this role from about August 2015, and was asked by her to move to another LAM in about March 2016;
(c)in February 2016 Ms Scoutas finalised his annual appraisal. He was rated 3B, meaning that Mr Michelle met expectations and received 100% of this short term incentive bonus, calculated as 50% of his total compensation. He had received similar, or higher, ratings in the past;
(d)in the last week of September 2016 Ms Scoutas asked to ‘meet with me the following week regarding refunds made to customers by a former mobile banker’. This related to loans at the Seaford branch which was within his previous LAM;
(e)he had previously raised issues about the individual in question and saw the meeting as a positive thing;
(f)Mr Michelle met Ms Scoutas on 5 October and she was accompanied by Ms Mathews of human resources, who he did not know was to be present. Ms Mathews took notes. Ms Scoutas consulted spreadsheets on a laptop setting out customer refunds as the Seaford branch;
(g)Ms Scoutas also raised the issue of refunds of general insurance premiums which other staff had informed her had been endorsed by Mr Michelle in a teleconference, and he acknowledged signing off on one specific refund;
(h)at the end of the meeting Mr Michelle did not know what the outcome was, and he found the meeting ‘very distressing’ mainly because he had been ‘blindsided’, did not know that it would be a formal meeting, and ‘it felt like my integrity was being questioned’;
(i)following the meeting, Ms Scoutas called to say that it had been confirmed that Mr Michelle had not in fact encouraged the general insurance refunds, but he states the claim ‘added to the building anxiety that I was feeling at the time. I felt that I was being subjected to targeted bullying by Ms Scoutas’;
(j)Mr Michelle met with Ms Scoutas on 11 November 2016 and was told he could not expect the outcome of his annual appraisal ‘due to the “investigation” (in to my handling of the refunds)’, and that he was ‘in complete shock’ at the reference to an investigation;
(k)on 14 November 2016 he received an email from Ms Scoutas scheduling another meeting to ‘go through the findings of the investigation that we discussed’. Mr Michelle considered ‘the upcoming meeting was very stressful for me and I was feeling anxious about it’;
(l)the meeting took place on 18 November 2016 and Mr Michelle was informed he had received a 3C rating meaning he lost 25% of the bonus he would receive under a 3B rating. The reason provided was that the refunds had occurred ‘on [his] watch’;
(m)in December 2016 he was asked about a reference provided to a Ms P. Mr Michelle confirmed that he had written a reference and that it was to support her re-training to be a mortgage broker. He states that it was not an employment reference, and was not aware of a policy against providing references on NAB letterhead;
(n)in February 2017 he contacted the NAB Whistleblower program, and states ‘I contacted the Whistleblower program because of what I considered to be targeted bullying by Ms Scoutas and Mr Eaton of me’;
(o)he exchanged a series of emails in February 2017 in relation to a meeting proposed by Mr Eaton to discuss the provision of the reference for Ms P, about which he ‘felt extremely anxious’. Mr Eaton explained that the Applicant was ‘dishonest’ in his explanation to Ms Scoutas;
(p)on 27 February 2017, he contacted People and Culture and Workplace at NAB and they created an incident record stating that Mr Michelle ‘advised he has suffered mental injury, anxiety, stress, depression as a result of harassment. Ray is currently going through a disciplinary process’;
(q)in April 2017, Mr Michelle was asked to again move to another, underperforming, LAM, and between May and July various emails were exchanged with Mr Eaton regarding aspects of business performance for this region;
(r)on 10 August 2017, Mr Eaton arrived at a branch in the new LAM unannounced and conducted meetings with staff, which Mr Michelle felt was ‘an undermining of my position’ because he was not informed, and not involved in arranging meetings;
(s)on 12 August 2017, he contacted the staff Employee Assistance Program (EAP) as he was ‘suffering anxiety at this time as a result of the conduct of Mr Eaton and Ms Scoutas’;
(t)feedback was provided arising from the meetings conducted by Mr Eaton which included that Mr Michelle was focussing on the right activities but:
‘there are concerns around ‘how’ you are leading to the outcomes. I am primarily concerned around commentary from the team that they feel you are leading through fear and lack of empowerment of the leaders …’;
(u)further meetings were held in branches within his LAM in August and caused him ‘a great deal of stress and anxiety’ and was a further indication that Mr Eaton and Ms Scoutas were trying to undermine Mr Michelle;
(v)he acted as auctioneer at a staff trivia night on 31 August 2017, at which Ms Scoutas was herself auctioned off. Mr Michelle states that he denies making a comment, recorded in a later staff complaint, describing Ms Scoutas as a ‘50 year old hag without shoes’;
(w)he attended a meeting on 25 October 2017 with NAB’s Executive General Manager of Retail and Ms Mathews, in the company of a legal representative, and later received a letter outlining concerns about his conduct and behaviour, and stating that his employment was under review; and
(x)he completed a claim for worker’s compensation on 17 November 2017.
Applicant – cross examination
In cross examination, Mr Michelle was asked about an undated letter from himself to Dr Kondopoulos, his General Practitioner (R1, p 173). He agreed that in this letter he had sought to emphasise that his stress and anxiety was ongoing and did not just arise from 25 October 2017. He considered the meeting ‘the straw that broke the camel’s back’.
It was put to Mr Michelle that he articulated in this letter his belief that, while he had some issues prior to October 2017, he was sorting through them and was managing. For example, he made only passing mention, possibly in a February 2017 consultation, to workplace issues. Mr Michelle responded that he had made a whistleblower complaint and received assistance through the EAP, and ‘had faith they would help’. He disputed that he had been functioning normally through 2016 and into 2017.
Mr Michelle acknowledged the prescription of Valium and Panadeine Forte on a range of dates, including across 2009 and 2010. Mr Michelle accepted the prescriptions were in relation to providing help with sleeping and relaxation, and also back pain, relating to a February 2009 back operation.
Mr Michelle confirmed the prescription of the anti-depressant Pristiq commencing in July 2015. He stated that this was suggested by Dr Kondopoulos when Mr Michelle found difficulty dealing with the responsibility of raising his children following the death of his wife in February 2014. He agreed that he responded well and was feeling better within weeks.
The Respondent’s representative noted that a consultation record in May 2017 refers to a ‘discussion re work stress’, and that prescriptions continued as before until, on 28 October 2017, the Pristiq was increased to 100 mg and then doubled several days later. Mr Michelle acknowledged the increase in the amount prescribed, and agreed that the dosage remained the same at present.
When asked to describe his mental state following the 25 October 2017 meeting, Mr Michelle stated that he was only able to stay in bed and his sister came from New Zealand to assist him, and he was dependent upon her.
Mr Michelle was asked about a consultation dating from 2004 recording that the Applicant ‘has episodes of depression lasting 3/52’. Mr Michelle stated that this referred to a cumulative total period of three weeks. He tried Zoloft for a period of time but felt this did not need to continue. Asked about depression in the years following, Mr Michelle said that depression was the wrong word and that Valium helped if he became anxious, for example if about to go on a trip.
Mr Michelle described the 5 October 2016 meeting as ‘very significant’, and that it ‘really rattled’ him because of the format, location, and use of prepared materials. He stated that he did not know that other staff members under his authority were being investigated, nor that the lender was the subject of a fraud investigation. Mr Michelle agreed that he was highly stressed in the days following, and particularly four weeks later when he was told he could not have his appraisal completed. He agreed he was highly stressed at the 18 November 2016 meeting.
Mr Michelle denied that he overstated the effect of the 2016 meetings in order to advance his compensation claim. He cited his long experience as a manager, positive performance ratings, and familiarity with the inherent stresses of the job.
Mr Michelle stated that he was ‘absolutely’ able to discharge his leadership duties across the years 2016–2017. Asked whether, from a mental perspective, he was coping normally Mr Michelle replied ‘no’, stating that he was ‘perpetually stressed’ when seeking help within the bank. Mr Michelle disagreed that his exposure to stress was not shown in a change to mental functioning or behaviour.
Mr Michelle agreed that he was very upset with the rating given in November 2016, but disagreed this was a reflection of his leadership style. He stated that it was because of his leadership style that he was moved to another LAM and agreed that it was a feather in his cap to be moved to a region that needed to be fixed.
In respect of the reference for Ms P (A1, [55]), Mr Michelle stated that he was unaware there was a policy on employee references, and stated that people did in fact provide references. He agreed that he did not regard this as a reference, but rather as a statement in respect of Ms P’s experience, for accreditation purposes. Mr Michelle acknowledged that Ms P had been the subject of an allegation of misconduct and had resigned after an investigation.
Mr Michelle stated that, in hindsight, it would have been better ‘coming from People and Culture’ and accepted that he could have made a different decision. It was put to Mr Michelle that writing that Ms P had been ‘very successful’ in her position was a gross misstatement. He replied that she had been so for many years, but had been ‘hoodwinked’ by a former manager, and ‘paid a high price for that’. Mr Michelle stated that as a mother with a single income it was fair to do what he had done for Ms P, ‘as God is my judge’.
Mr Michelle responded ‘not really’ when asked if the events of the trivia night had caused a good deal of distress, observing that there were different accounts of the night. He stated that he would ‘never, ever, call someone a hag’.
It was put to Mr Michelle that he got on well with Ms Scoutas until she became his boss. Mr Michelle stated that he did get on well with her, but ‘should have called out some behaviours’, and he agreed that he organised a birthday party for Ms Scoutas in 2016 with staff attending.
In relation to the branch-level meetings conducted by Mr Eaton (known as ‘Skip level’ meetings), Mr Michelle stated that NAB had already admitted in court proceedings that the meetings were not in accordance with the guide. He stated that he had run such meetings for many years, and always in accordance with procedure, and had never known meetings to be held otherwise.
It was put to Mr Michelle that Ms Mathews would give evidence that the staff being investigated at the time of the October 2016 meeting had said they were acting at the Applicant’s direction. Mr Michelle said that there was no evidence to support this. It was further put to him that Ms Mathews would say she was at the meeting because of the seriousness of the allegations. Mr Michelle responded that, in which case, he should have been advised of the seriousness of the meeting.
Alasdair Eaton
Mr Eaton confirmed his statement dated October 2019 (R4) and stated that he was responsible for a portion of the State as a regional manager. He stated that in December 2016 he was the Applicant’s direct supervisor; he had no involvement in the November 2016 meeting.
Mr Eaton stated that regular monthly meetings addressed the business performance of the Applicant’s region. He was asked to give a specific instance of when Mr Michelle showed resistance to feedback (R4, [9]). Mr Eaton gave evidence that when discussing the concerns raised at the Skip level meetings, the Applicant stated that this was not new, and he did not intend to change. Based on Mr Michelle’s body language, Mr Eaton stated that it appeared this was not the first time the Applicant had heard this; Mr Michelle appeared dismissive, and was not upset or distressed.
In relation to the reference for Ms P, Mr Eaton stated that he could not recall any other instance of a similar reference being provided. He considered that Ms P had been successful, but the reference did not reflect the terms of her departure, and was a breach of policy. In his opinion, a verbal reference dealing with a staff member’s tenure and role might be appropriate.
Asked about what the transfer to an underperforming LAM said about the Applicant, Mr Eaton stated that he was an extremely experienced retail banker, with excellent knowledge, and knew how to drive results. Mr Eaton had no concerns about his ability to perform.
Mr Eaton was asked about the reference in his statement to Mr Michelle alienating people, as he had in the past (R4, [15]). He stated that the Applicant’s score in ‘engagement’ was ‘always lower’ when the scores of people engagement surveys were published.
With respect to the Skip level meetings, Mr Eaton stated that he had ‘absolutely’ come across examples in the past where these did not involve contact with the relevant leader. Mr Eaton stated that in his experience Skip meetings were very much informal, and he was unable to recall the status of the guide to Skip meetings.
Mr Eaton agreed that the particular meetings held were arguably not transparent as he did not inform the Applicant, but he reiterated the document was a guide. In this case he erred on the side of caution because of the nature of the issues being discussed, as he had done on previous occasions.
Mr Eaton confirmed his view (R4, [22]) that Mr Michelle was not being targeted. This was because a relatively lower lending target was established for his new LAM, and he worked with other executives to ensure that the LAM had the talent required to perform. Mr Eaton stated that Mr Michelle was part of the team working through these solutions.
In cross examination, Mr Eaton confirmed that the Skip meetings were aimed at coaching and development. He stated that the guide to Skip meetings was applied with a level of reasonableness depending upon the situation. Mr Eaton accepted that he applied the guide in part, but not in regard to notifying the manager.
Mr Eaton confirmed that he attended the trivia night and acknowledged that he did not include this in his witness statement. He stated that he did not hear anything relevant at the event, and did not recall sending a letter to Mr Michelle in respect of the event (ST25). Mr Eaton disagreed that he did not refer to the trivia night in his statement because his version of the event was bad for the Respondent. He accepted that the offer of an apology was a reasonable option to pursue.
Tracey Turner
Ms Turner was not identified as a witness until after the commencement of the hearing. She confirmed the contents of a statement dated 16 February 2021 (Exhibit R5). She confirmed that the reference to complaints made to her by former staff who had come under Mr Michelle’s responsibility (R5, [5]) included unfair sales pressure, and being contacted after hours about sales targets. She stated that Mr Eaton suggested that she speak to the Applicant about the staff concerns.
Ms Turner also stated that she was told by her former staff that they were grateful for the Skip level meetings with Mr Eaton. She stated she was familiar with the process, but not with the guide, which she understood was available on the intranet. In her experience, notification to the relevant manager was not the way such meeting were usually arranged, and she described them as ‘relaxed, random and ad hoc’.
Ms Turner confirmed in her evidence that she was present at the trivia night and ‘easily heard’ Mr Michelle refer to Ms Scoutas as a ‘hag’, even though she was sitting at a back table.
Mary Scoutas
Ms Scoutas confirmed the contents of her written statement dated 6 November 2019 (Exhibit R6), with the clarifications: an ‘amber gate’ was not applied to the Applicant’s performance, but was discussed (R6, [9] and [11]); and with a correction of a typographical error (R6, [35]).
Ms Scoutas stated that Mr Michelle commenced as head of LAM 3 in March 2016 ([3]). She stated that there was an investigation into Seaford Branch arising from the conduct of a mobile banker involving significant refunds due to inappropriate lending practices.
Ms Scoutas stated that an investigation into three staff members at the Seaford Branch had commenced prior to her meeting, by which time specific allegations had been put to those staff members. She confirmed that the total amount of payments in question was approximately $117,000 which was a significant amount. Letters of allegation had been sent to the staff seeking answers to specific questions as the matter was considered quite serious.
Ms Scoutas agreed that part of the purpose of the meeting was to seek clarification from the Applicant, as the investigation involved staff members answerable to him. Mr Michelle was responsible, during a period, for the general accounts which had been debited. She stated the mood was cordial and Mr Michelle was relaxed. Ms Scoutas stated that she had been expecting a reason for the practice, for example a campaign or promotion.
Ms Scoutas stated that the November meeting was deferred in this case for the findings of the Seaford Branch investigation. Ms Scoutas stated the finding was that Mr Michelle had encouraged the refunds to customers. Asked whether the actions were a contravention of policy, Ms Scoutas stated the issue was more Mr Michelle’s leadership style, in that he should have made Ms Scoutas aware of the practice.
Ms Scoutas stated that they stayed in touch between the October meeting and the November meeting about Mr Michelle’s performance. In this meeting Mr Michelle seemed quite positive, and she had advised the Applicant that Ms Mathews would attend because of her involvement in the Seaford Branch investigation.
Ms Scoutas stated that after Ms Mathews left the meeting the Applicant expressed relief because he had thought he would lose his job. Ms Scoutas reminded Mr Michelle about his excessive use of email and calling late meetings, and he then expressed interest in applying for a promotion, in a role reporting directly to her.
With respect to the reference for Ms P, Ms Scoutas stated that it may have been appropriate to provide a statement in relation to her accreditation. She stated Mr Michelle had told her it was not a reference letter, which she considered was ‘clearly incorrect’, and it was common not to give references, something that was spoken about on a regular basis.
Ms Scoutas confirmed that Mr Michelle moved to a new LAM in March 2017. She confirmed that she had received feedback from staff about his management style, this had been a theme for some time, and that Mr Michelle had refused to address it. Asked when she first became aware of these issues, Ms Scoutas stated that shortly after taking over her management role, in October 2015, a staff member raised specific concerns which reflected the feedback ‘all along’.
Ms Scoutas stated that she had had several discussions with the Applicant about his leadership style between 2015 and 2017. Asked about their relationship, she stated it was good, positive and conversational.
With respect to Skip level meetings, Ms Scoutas stated that she conducted similar meetings in branches up to three times a week. She stated that she always talks to the next level down to see what is working well, describing it as ‘a normal business interaction’. Ms Scoutas stated that she was not aware of the Skip level meeting guide and it had never been discussed. She thought that Mr Eaton’s approach to the meetings was ‘fair and reasonable’ as the issue raised was similar to that arising in survey feedback, which was about Mr Michelle’s style and ‘victimisation’ of staff.
At the commencement of cross examination, Mr Michelle’s representative pressed Ms Scoutas on her understanding of the significance of providing a written statement, and I advised the Applicant’s representative that I did not consider the statements to have the status of affidavits.
Ms Scoutas confirmed that Mr Michelle was not under investigation, and that they were trying to ascertain his version following the staff responses. She did not consider the October meeting to involve serious misconduct on the Applicant’s part. Ms Scoutas stated letters of allegation are used when serious concerns arise.
In relation to notice of the specific practices alleged, Ms Scoutas stated that she told Mr Michelle they would ask him about debiting accounts, and about the mobile banking lender. She reiterated her evidence that she had the impression the Applicant would explain there was a policy or waiver involved.
Ms Scoutas disagreed that she deliberately downplayed the true purpose of the meeting, observing that a different course would have been pursued in the case of serious misconduct issues. Ms Scoutas stated that there were also issues raised about staff being harassed and pressured and that, at this point, Mr Michelle’s leadership was the issue.
A bundle of documents was tendered (Exhibit A3) comprising the letter of allegation, staff responses and three spreadsheets, and it was further put to Ms Scoutas that the claims that the staff believed Mr Michelle had authorised payments was ‘very serious’. Ms Scoutas responded, ‘not without asking Ray’, and stated that the activities may have been authorised, as the bank often had campaigns, and she wanted to know if this was the case.
In relation to the spreadsheet tendered, Ms Scoutas stated that Mr Michelle had commented that it was a ‘phenomenal amount’. Asked if they were keen to ensure the dates pertained to his time as the regional manager, Ms Scoutas stated that they wanted his ‘intel’ on practices at Seaford. She accepted that a large number of the transactions occurred after Mr Michelle changed LAMs.
Ms Scoutas stated that the Applicant’s annual appraisal was held up because she did not know what Fraud or Forensics would do with the Seaford investigation. It was put to Ms Scoutas the Applicant lost part of his bonus as a result of the October meeting and she replied ‘not 100%’; it was partly based on values and behaviour, and partly on other incidents raised by staff.
Ms Scoutas disagreed that a rating of ‘3’ was a downgrade or disciplinary in nature. She acknowledged that a verbal warning was given to Mr Michelle in the November meeting, but also did not consider this official disciplinary action.
Ms Scoutas agreed that she did not make a formal complaint following the trivia night. She understood the complainant raised the issue after attending a meeting where Mr Michelle made another comment which indicated that he did not have respect for Ms Scoutas.
Jenny Mathews
Ms Mathews confirmed that she was the author of the record of the 5 October meeting (ST4), confirmed her written statement dated 14 November 2020 (Exhibit R7), and stated that she is no longer employed by NAB.
Ms Mathews stated that the decision to give Mr Michelle a verbal warning would have been made in conversation between herself and Ms Scoutas, probably after the 5 October meeting. She confirmed that Ms Scoutas had ‘advocated’ for Mr Michelle and was genuinely trying to understand what had happened, and what the Applicant’s understanding was. Ms Mathews explained that by ‘advocating’ she meant that her expertise was workplace relations and Ms Scoutas’ expertise was retail banking, and therefore she had a better understanding of how a branch runs.
Asked why her presence was necessary at the October meeting, Ms Mathews stated that there had been a separate investigation into the broker, who had been dismissed and was jailed. There was then an investigation into three staff members by the Fraud and Workplace Relations teams. Mr Michelle had been raised as a ‘defence’ by the staff members, and she was the member of the team dealing with it.
Ms Mathews stated that there was a written policy about the provision of references for staff members. She was concerned because the statements in the reference were not true and the individual left under a cloud. Ms Mathews stated it was also not within the code of conduct to write a document that is not true.
With respect to the Skip level meeting guide, Ms Mathews stated she was surprised it existed, and she had recommended such meetings numerous times.
In cross examination, Ms Mathews stated that letters of allegation are used when serious issues arise, usually when employment is at risk. She was unable to recall whether she had provided the letters to Ms Scoutas, or how long the investigation had been underway.
With reference to her file note (ST4), Ms Mathews agreed that advancing funds without authorisation was an extremely serious thing. She stated the meeting was to assist in resolving what had happened and the focus of the meeting was the three staff members. It was put to Ms Mathews that she would have anticipated that if the material concerning Mr Michelle were true it would constitute misconduct. She disagreed, as this was not the focus of the meeting, it was: ‘what’s going on here …?’. Ms Mathews also disagreed that what had happened was that the Applicant had overseen misappropriation.
Ms Mathews said it was not fair to say that following the October meeting Mr Michelle’s conduct was never in question, as there were issues to be followed up. She reiterated that her focus was the implications for the three staff members who provided responses.
It was put to Ms Mathews that her evidence was not feasible, nor credible. She disagreed, stating that if the matter was as serious as the question suggested, then there would have been more significant disciplinary action. In this case, Mr Michelle was counselled about signing off on the general accounts transactions. She stated that more serious action was not considered because there was acceptance of things Mr Michelle had said with respect to the environment at the time.
Ms Mathews agreed that it was determined after the October meeting to suspend Mr Michelle’s short term incentive. This was because at NAB if issues arose between 30 September and the date of payment then they could not be paid if matters were under review. Ms Mathews agreed the Seaford Branch investigation prompted the suspension.
With respect to workplace relations case notes (ST8), Ms Mathews was asked why it recorded allegations about Seaford staff were ‘not substantiated’, also queried why the Applicant did not ‘own up’. Ms Mathews stated that the fraud investigation found this had been a common practice, and she did not understand why Mr Michelle had said he knew nothing about it.
Ms Mathews could not recall what other options had been considered in addition to the agreed verbal warning. She stated that there was a discussion about the events being historical and at a time when Mr Michelle was ‘going through personal issues’, including the death of his wife, and she was mindful some of the events may have occurred at this time. Ms Mathews could not recall if there was a discussion about an ‘amber gate’, but explained that this is a reference to the conduct framework; it would have an impact on incentives and typically may be associated with a verbal or written warning.
Ms Mathews was asked once more about the purpose of the October meeting and Mr Michelle’s level of notice. She did not change her evidence and the Applicant’s representative indicated that he considered the witness ‘non-responsive’.
In relation to the trivia night and subsequent complaint, Ms Mathews’ evidence was that she was not particularly clear on her role in pursuing the matter, but was aware that it was considered that the matter needed to be addressed. She confirmed that she performed some follow up inquiries, and she clearly recalled that the complainant was adamant about the incident.
SUBMISSIONS
It was submitted by way of closing that the Applicant had suffered a compensable injury in the form of a disease, and that this was not a matter in dispute. The Applicant’s representative identified four potential instances of reasonable administrative action, broadly consistent with those described in the Applicant’s SFIC: the actions during October and November 2016; the response to the provision of a letter of reference for Ms P; the conduct of Skip level meetings by Mr Eaton; and the Respondent’s response to the trivia night.
The Applicant’s representative stated that there is no precedent available on the way to address potential multiple instances of reasonable administrative action. Therefore, the correct approach was to consider each instance and consider whether, but for that instance, Mr Michelle would be suffering the injury.
Reference was made to the decision of Comcare v Martinez (No 2) [2013] FCA 439, at [83], where reliance was placed on the decision of Keen v Worker’s Rehabilitation and Compensation Corporation (1998) 71 SASR 42. That is, whether administrative action was taken in a reasonable manner depends on the administrative action, the facts and circumstances, the impact upon the worker, its implementation, and any other relevant matters.
With respect to the injury, reliance was placed on the report of Associate Professor Mendelson of 23 June (R2, p 14). Mr Michelle’s representative did not disagree with the perspective of the Respondent that late 2017 was a significant period for the Applicant, but stressed the genesis lay in late 2016.
It was further submitted, however, that pointing to the absence of a report by his treating doctor reflected a hopelessly simplistic view of mental illness. For example, there were examples of prescriptions (R1, p 29) which were not accompanied by a related narrative around the Applicant’s mental health condition, and this cannot bear on whether or not there is a relevant injury. Reference was made to a contemporaneous NAB record from February 2017 (Attachment 32 to the Applicant’s statement) being Mr Michelle’s incident report of anxiety, stress and depression arising from what was described as a disciplinary process.
Accordingly, it was submitted that the injury arose in late 2016 directly out of the Applicant’s employment and his treatment did not amount to reasonable administrative action. Reference was made to the Applicant’s letter to his treating doctor (R1, p 155) and it was submitted that the description there is consistent with the Applicant’s characterisation of events.
It was submitted that it was known in September 2016 that a serious issue had arisen leading to a fact-finding mission including fraud investigation and Respondent witnesses had downplayed the consequences for the Applicant. While no issue of procedural fairness arose from witness statements and examination, it was submitted, specifically, that the evidence given by Ms Scoutas, that no disciplinary action was considered against Mr Michelle, was false.
In respect of the letter of reference, it was submitted the Respondent has to demonstrate that the related actions were reasonable. However, it was also submitted that this instance of reasonable administrative action may not pass the ‘but for’ test in the context of other matters.
In relation to the Skip level meetings, it was emphasised that the guide talks in terms of transparency. However, it was also submitted that if the Tribunal considers that Mr Eaton held a perception that he had reasonable grounds not to comply with the guide, then little more could be said about this instance of administrative action.
Finally, it was submitted that the issue with the trivia night was not what happened, but rather NAB’s actions in response, although the Applicant’s version should be preferred. Critically, Ms Scoutas as the person aggrieved, was unable to say what happened to Mr Michelle’s response to the allegation, and it would have been reasonable for Ms Scoutas to be told about the offer of an apology.
On the Respondent’s behalf, it was submitted that the Applicant’s injury was conceded, however considerable time was then dedicated in submissions to addressing the date of injury. Reference was also made to a number of sources on aspects of the diagnosis, noting that the medical reports overall do not take cognisance of the precise timing and history of symptoms:
(a)medical certificates of the Applicant citing acute anxiety/depression (commencing with R1, p 82);
(b)a report of Dr Alan Blandthorn, Consulting Psychiatrist, to the Applicant’s treating doctor, of 8 December 2017, states that Mr Michelle described the development of a major depressive episode (R1, p 170), that Mr Michelle felt overwhelmed and a bit sad some three years after his wife’s death, and that at this time a new manager was appointed for the Applicant, and he then commenced taking anti-depressants;
(c)a subsequent report of Dr Blandthorn of 21 December (R1, p 172) states that the Applicant’s depressive symptoms had abated on increased anti-depressant medication, ‘but he remains with a diagnosis of an adjustment disorder with anxiety focused on his employment situation’;
(d)a medico legal report prepared for the Respondent by Dr Dielle Felman, dated 15 February 2018 (T11) describes a family history of mental health issues, notes prior use of Valium and a grief reaction to his wife’s death, but that Mr Michelle reported that his mental health deteriorated, denying pervasive anxiety prior to this time. Dr Felman reports a diagnosis of initial Adjustment Disorder with mixed anxiety, depression and trauma symptoms, which deteriorated into a Major Depressive Episode; and
(e)the report of Associate Professor Mendelson (R2) does not record the history of back pain, and mistakenly reports that Pristiq was prescribed due to emotional symptoms arising from his treatment by his ‘boss’.
Ultimately, it was submitted that the date of injury was much later than asserted on the Applicant’s behalf. Furthermore it was submitted that, whatever the date of injury, it should be understood to have been suffered as a result of reasonable administrative action taken in a reasonable way.
In relation to the nexus with employment, it was submitted that if one or more key work events fall within the exclusion of reasonable administrative action, then the Applicant is not entitled to compensation (citing Hart v Comcare [2005] FCAFC 16 (Hart)). It was also submitted that Comcare v Martin [2016] HCA 43 (Martin) stands partly for the proposition of a ‘but for’ connection between events and injury.
Submissions were made with respect to the proper way to understand what is meant by psychological injury. Comcare v Mooi [1996] FCA 1587 (Mooi) was cited for the proposition that the Applicant’s mental functioning prior to and following key events was the critical issue, not the application of a particular diagnostic label; it is essential to demonstrate a condition outside the bounds of normal mental functioning.
In short, it was argued that the Applicant’s evidence about his functioning should be treated with caution because it included an element of reconstruction, that is of reporting an impact after the event. It was contended, specifically that: Mr Michelle’s letter to his treating GP (Exhibit 1, p 173) regarding the longer history of his condition, was an unusual action to take; the Applicant’s colleagues did not perceive him to be affected in the way Mr Michelle claimed; he was in fact treated as a high achiever; and management actions were in response to his underlying management style.
It was submitted that Ms Scoutas was an impressive witness who denied targeting the Applicant, and Wiegand v Comcare [2002] FCA 1464 was cited for the proposition that an employee’s perceptions must meet a reality test when relating to an incident or state of affairs that actually happened.
With respect to the meetings conducted by Mr Eaton, it was submitted that he was an impressive witness and provided an explanation why notice was not provided for the meetings, which meant that he was acting entirely reasonably.
In respect of the trivia night, it was submitted that it was not necessary to make a finding in relation to the actual conduct on the night, however the Tribunal was in a position to do so on the basis of the evidence given at the hearing. NAB was in any event both obliged and entitled to take a severe view of the allegations. This event amounted to a severe escalation of the Respondent’s already existing concerns about the Applicant’s behaviour.
The evidence about the reference letter, it was submitted, demonstrated that this was a serious error of judgment, and Mr Michelle failed to demonstrate any insight into his error during cross examination. The Respondent was warranted in acting in the way it did due to the potential implications of the reference for its integrity and reputation, given the circumstances of the employee’s departure, which was known to the Applicant.
It was submitted that with respect to the 5 October meeting, the evidence of Mary Scoutas and Jenny Matthews was of critical importance. It was open to the Tribunal to accept their evidence that the focus of the discussion was the Seaford Branch investigation, that actions taken from that point in response to what arose at the meeting were reasonable, and that the subsequent verbal warning was also reasonable in all the circumstances.
In reply, the Applicant’s representative submitted that Hart stood for the proposition that where there are multiple contributing acts to a condition, it is only necessary that one of them be established to find liability. It was submitted that Martin stood for the proposition that the exclusion only applies where a person would not have suffered an injury if the administrative action had not occurred. The observations of work colleagues, it was submitted, were not relevant to determining Mr Michelle’s condition. Finally, should it be found that the Applicant’s condition was first diagnosed in early 2017, then there were two administrative actions arising in 2017 which were of relevance to the determination of the matter.
CONSIDERATIONS
The issues for consideration in this matter are when the Applicant developed a psychological injury, and whether it can be understood as being suffered as a result of reasonable administrative action taken in a reasonable manner, in which case liability will not arise.
As noted from submissions, the Respondent concedes the existence of psychological injury, but different contentions have been raised with respect to its timing. The Tribunal is unable to simply accept a position advanced by parties, even in the absence of differences between them. Liability can only arise under s 14 of the SRC Act when an injury is found, having been properly identified in accordance with the terms of the legislation.
Somewhat unusually in this case, the medical evidence before the Tribunal is confined to a single expert report directly admitted, and a range of other written material, with no expert oral evidence. Moreover, the Applicant sought to rely on the Respondent’s expert report; and, the Respondent’s representative made submissions about the adequacy of this report.
The Applicant’s condition
Associate Professor Mendelson’s report was prepared more than two and a half years after the Applicant ceased working at NAB. At that point in time, Associate Professor Mendelson diagnosed Mixed anxiety and depressive disorder, in partial remission (R2, p 14). He was of the opinion that Mr Michelle should remain in treatment, and may require ongoing medication to prevent relapse (R2, p 15).
The report overall is somewhat focussed on Mr Michelle’s work capacity, and it incorporates by reference prior specialist medical material. Accordingly, Associate Professor Mendelson refers to the reports of Dr Blandthorn and Dr Felman, including the key observations summarised above. It also includes the observation that Mr Michelle’s history indicates that his condition improved somewhat between late 2014 and late 2016, and was then exacerbated when he became aware he would not receive his performance rating (R2, p 14). Associate Professor Mendelson also opines that a discrepancy between perspectives of employer and employee about perception of key events may be influenced by the Applicant’s ‘underlying anxiety and depressive condition’ (R2, p 15).
The various reports referred to, in combination with the evidence obtained during the hearing, demonstrate that Mr Michelle’s anti-depressant medication dosage was increased (being doubled twice, from 50mg to 100mg and then 200mg) in October and November 2017 (R1, p 31). Mr Michelle has a history of prescribed Valium going back to the early 2000s, with continued use throughout the relevant period.
The circumstances of Mr Michelle’s use of anti-depressants are noted by his treating doctor (R1, p 28): ‘getting increasingly depressed and anxious’. This record is from 28 July 2015, the date on which anti-depressants were prescribed. There is, as the evidence generally demonstrated, little or no reference to work issues in the GP notes, other than ‘brief discussion re work stress’ on 29 May 2017 (R1, p 30). This is followed, some time later, on 28 October 2017 with ‘getting more stressed with his direct boss’ and ‘still very stressed’, on 10 November 2017 (R1, p31).
I accept the Respondent’s submission that there are some weaknesses in the accuracy of medical reporting overall. The circumstances described in Dr Blandthorn’s report, for example, and the consequent estimates about key dates in Associate Professor Mendelson’s report, appear not to align well with the other evidence. That is, I am not certain on what basis he identifies late 2014 as a time of significance as, for example, Dr Kondopoulos noted an improvement in Mr Michelle’s condition following the prescription of Pristiq, in mid-2015.
With respect to related non-medical material, I note that in the attachment to his claim for compensation (T4, p 22) Mr Michelle states that he consulted his doctor and was prescribed anti-depressant medication when he ‘first started to have difficulties coping with events at work’. I note that in her statement (R6), Ms Scoutas states that she became the Applicant’s direct supervisor from 28 September 2015, and the Applicant then reported to Mr Eaton from January 2017.
The date of reporting to Ms Scoutas stated by Mr Michelle in his statement is ‘from about August 2015’ (A1, [15]) which is not greatly different to the date given by Ms Scoutas. However, the timing does not correlate with the actual commencement of anti-depressants in the medical record. While Dr Blandthorn refers to a combination of personal and professional reasons for the prescription of anti-depressants, this is not reflected in the clinical notes of the treating GP, in that there is no explicit reference to either personal or work sphere.
There is no formal, specialist, psychiatric diagnosis prior to those delivered in late 2017 and early 2018. An issue therefore arises as to how to approach Mr Michelle’s medical history prior to diagnosis, taking into account his acknowledged longer history of medication and, adopting Associate Professor Mendelson’s words, his underlying mental health condition. Some assistance can be provided by Mooi given its frequently cited definition of injury being some ‘disturbance of normal function of body and mind’. However, I am mindful that this formula was arrived at on the basis of the role played in the original Tribunal decision in that matter of a medical opinion regarding what was clinically significant or abnormal for the patient (Applicant) in question. Here we have reasonably comprehensive evidence, but unfortunately, no direct medical evidence in which questions such as the specifics of Mr Michelle’s history, and indeed the important question of onset, could be tested.
Having considered the three specialist reports, I am satisfied that Associate Professor Mendelson’s report provides an adequate analysis of Mr Michelle’s situation. While the dates for an improvement in Mr Michelle’s condition are not necessarily well explained, I consider Associate Professor Mendelson’s description of the Applicant’s condition having improved, and then being exacerbated by issues with respect to the deferment of his performance rating associated with an investigation, to reflect the circumstances as I understand them. That is, that Mr Michelle was negatively affected by the events of late 2016. This is supported by reference to Dr Felman’s report where, despite there being no explicit reference to the timing of onset of what she describes as an adjustment disorder, her diagnosis reflects a similar conclusion about the impact of events in late 2016.
There is a potential issue arising with the fact that there are two separate employment-related incidents in late 2016 in this matter, being the October meeting and the actions, and the November meeting relating to Mr Michelle’s performance appraisal. Given their proximity in time, and the fact that an opportunity did not arise to examine medical witnesses, I do not consider it reasonable to attempt to determine specifically what role each event played in the development of Mr Michelle’s condition.
I accept that, as acknowledged in more than one medical report, much relies upon Mr Michelle’s self-reporting of events and their impact. Some effort was put on the Respondent’s behalf into seeking to characterise Mr Michelle’s behaviour, based on witness observation, as being more or less consistent with ‘normal’ functioning. However, I consider I should place appropriate weight on the medical material, albeit with the qualifications I have noted.
Accordingly, I am satisfied that Mr Michelle had an underlying anxiety and depressive condition which was exacerbated in later 2016 as a result of events in the workplace. I therefore find that Mr Michelle suffered an injury in the terms of s 5A of the SRC Act.
Administrative actions
As noted from the summary of the submissions on the Applicant’s behalf, there are four instances of administrative action requiring consideration.
As explained above, I have been unable to distinguish between events in October and November 2016 in relation to the onset of Mr Michelle’s relevant injury. In any event, I am satisfied that the description of the workplace issues in the medical reports reflects my understanding of the evidence arising from the hearing. That is, there is ultimately a link between the 5 October meeting and Mr Michelle’s performance appraisal. This is because I consider that the evidence satisfactorily shows that the latter was delayed due to the need to conclude the former inquiries, and was also informed by those inquiries.
I do not accept the submissions on the Applicant’s behalf as to the credibility of evidence, particularly that of Ms Scoutas. The overwhelming weight of the evidence indicates that the October meeting was conducted for the purpose of obtaining Mr Michelle’s views on the issues arising in what was a separate investigation into the Seaford Branch.
The evidence demonstrates to my satisfaction that Mr Michelle’s rating was undertaken on the basis of management insight into the Applicant’s performance based on appropriate and relevant sources of information, including staff survey work. I accept that the inquiries made in October about Seaford informed these management insights, but the evidence does not substantiate the Applicant’s view that these were conducted in an unreasonable manner. Indeed, I consider there is some doubt as to whether, taken alone, the actions in October would amount to action ‘in respect of’ Mr Michelle’s employment.
Similarly, in relation to the question of the reference provided for Ms P, the various actions or interactions about this subject would not appear to amount to action in respect of Mr Michelle’s employment. However, they might be accepted as forming part of the ongoing management appraisal of Mr Michelle in his role as an executive. It is clear from the evidence that the senior executives took issue with the provision of a written reference, and I accept, based on the evidence, that it was in fact an employment reference and not the more limited statement the Applicant sought to characterise it as.
The balance of evidence, which I accept, was that the letter was a poorly judged gesture not in keeping with practice at NAB. In evidence, Mr Michelle came to accept that, in retrospect, he may have acted in a different manner. The existence of a general practice does not necessarily render everything arising in relation to the reference inherently reasonable. However, I am unable to identify any aspect of the Respondent’s engagement with Mr Michelle on this issue to be unreasonable.
Much was sought to be made on the Applicant’s behalf about the contravention of an internal guide to the Skip level meetings. This argument did not withstand the overwhelming evidence that, to the contrary, formal transparency was not an accepted and required practice. In addition, both Ms Scoutas and Mr Eaton considered that the circumstances supported the decision to conduct meetings with staff without notice, due to the particular concerns about Mr Michelle’s management style that were being pursued.
It is reasonable to understand these meetings as being either appraisal of Mr Michelle’s performance as an executive, or something done in connection with appraisal (in the terms of s 5A(2) of the SRC Act). However, I am satisfied, that they were conducted in a reasonable manner.
The issue of the trivia night was approached with due sensitivity by the parties. As I understand the evidence, some form of investigation was conducted following the lodgement of a complaint by an observer on the night. Mr Michelle denied using the disparaging language attributed to him, but I do not consider it necessary to resolve this factual issue. The gist of the evidence and submissions on this matter was to the effect that an offer of an apology had been made and was not pursued.
It is difficult based on the limited evidence to take considerations about the event and its follow-up much further. My understanding of the evidence overall is, however, that this issue fed directly into the issuing of a formal conduct warning to Mr Michelle, immediately prior to his cessation of duties. At the least, it can therefore be understood as an action done in connection with appraisal or disciplinary action. I am not able to identify any evidence supporting the view that either the immediate response to the trivia night, or its ultimate consequences, were unreasonable.
As a result of the findings I have made, I do not consider it necessary to refer further to the authorities cited in oral submissions.
In conclusion, I find that all of the incidents said by Mr Michelle to amount to administrative action in respect of his employment to have been reasonable in the circumstances, and to have been taken in a reasonable manner.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 16 July 2021
Dates of hearing: 15 to 19 February 2021 Counsel for the Applicant: D. Bongiorno Solicitors for the Applicant: Garland Hawthorn Brahe Counsel for the Joined Party: J. Ferwerda Solicitors for the Joined Party: Lander & Rogers
0
5
0