Mizzau and TNT Australia Pty Ltd (Compensation)

Mizzau and TNT Australia Pty Ltd (Compensation) [2021] AATA 74 (1 February 2021)
Division:General Division
File Number(s): 2018/4430
Re:Edward Mizzau
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:1 February 2021
Place:Sydney

The reviewable decision made 24 July 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Mr Mizzau in respect of the claimed injury, is set aside.
In substitution it is decided that, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury, being an exacerbation of social anxiety disorder and depression, deemed to have been sustained by him on 21 September 2015.
Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Mr Mizzau in these proceedings.
..........................[SGD]..............................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – exacerbation of social anxiety disorder and depression – whether Applicant suffered an ailment or aggravation of an ailment – whether the ailment or aggravation of an ailment was contributed to, to a significant degree by his employment – whether the disease was suffered as a result of reasonable administrative action by the Respondent – where informal meetings between Applicant and his manager – where Applicant requested to attend formal meeting – where Applicant requested postponement of meeting to ensure his preferred support person could attend – where request refused – where Applicant directed to attend and that failure to do so may result in termination of his employment – where Applicant placed on performance improvement plan without the benefit of having his preferred support person of choice – where administrative action not taken in a reasonable manner – where exacerbation of social anxiety disorder and depression suffered as a result of the administrative action – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
REASONS FOR DECISION
Deputy President J W Constance
1 February 2021
A: INTRODUCTION
Mr Mizzau was employed by the Respondent from 1987 until 2016. In 2016 he held the position of Senior Business Analyst/Stores Manager.
In May 2018, Mr Mizzau lodged a claim for compensation[1] in respect of an injury described as “Psychological Injury – Anxiety”, which he claimed to have suffered in the following circumstances:
I was given additional work after a fellow employee left. Then I was criticized for not meeting my job targets and expectations. This sequence of events caused a psychological injury to me.[2]
His claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit R1 at 85.
[2] Exhibit R1 at 88.
The Respondent determined that it was not liable to pay compensation in respect of the claimed injury. Mr Mizzau requested this be reconsidered. On 24 July 2018, the Respondent decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In August 2018, Mr Mizzau applied to the Tribunal to review the reviewable decision.
[3] Exhibit R1 at 98.
For the reasons which follow, the reviewable decision will be set aside. In substitution it will be decided that the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury suffered by him.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Mr Mizzau. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
Mr Mizzau is 57 years old. He is a qualified Accountant, having completed a Diploma of Accounting.
When he was in his twenties Mr Mizzau was diagnosed as suffering anxiety. He received treatment for a few years, after which he did not need to consult any health professionals in respect of anxiety until 2011 when he was working for the Respondent.
Mr Mizzau was diagnosed with Diabetes Type 1 in approximately 1994 and Addison’s disease in approximately 2007. He receives treatment on an ongoing basis for both conditions. He is of the view that neither of these conditions has affected his work performance.
Mr Mizzau was promoted on several occasions during his employment by the Respondent. In his position as Senior Business Analyst he was engaged in planning and analysis for the Respondent, producing management reports based on the weekly profit and loss of the revenue side of the business. He also produced reports on a monthly and year-to-date basis.
In about 2010 Ms Ijpma was appointed as Mr Mizzau’s Manager. Initially they had a good working relationship. He identifies the problems in his employment as commencing with the decision of the Respondent to make the position of National Inventory Manager redundant in about 2015. I shall set out further evidence in relation to this event later in these reasons.
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
D: THE ISSUES
The following issues require determination.
(1)Did Mr Mizzau suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by his employment by the Respondent, and therefore a “disease” within the meaning of the Act?
(3)If so, was the disease suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [Mr Mizzau’s] employment”?
E: ISSUE 1: DID MR MIZZAU SUFFER AN “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
Evidence of Mr Mizzau
Mr Mizzau provided a statement dated 24 July 2019[4] and gave evidence at the hearing.
[4] Exhibit Z1 at 1.
On 2 September 2015 Mr Mizzau attended a meeting with Ms Ijpma and a representative from the Respondent’s Human Resources Department (the September 2015 meeting). As a result of what was said to him during the meeting, Mr Mizzau felt “shocked and scared”.[5] Following the meeting Mr Mizzau felt unwell and consulted his General Practitioner, Dr Lam. Further details of the meeting will be provided later in these reasons.
[5] Transcript, 7 March 2020.
I accept this evidence.
Certificate of Dr Lam, General Practitioner
Mr Mizzau consulted his General Practitioner, Dr Lam, on 21 September 2015[6] and was diagnosed as suffering “stress and anxiety re-work situation”. On 28 September 2015 Dr Lam certified Mr Mizzau as unfit for work by reason of this condition.[7]
[6] Exhibit Z1 at 78.
[7] Exhibit R1 at 24.
Evidence of Associate Professor Robertson, Consultant Psychiatrist
Associate Professor Robertson assessed Mr Mizzau on 18 December 2018 at the request of Mr Mizzau’s Solicitors. He provided a report dated 19 December 2018[8] and gave evidence at the hearing.
[8] Exhibit Z1 at 25.
In the opinion of Associate Professor Robertson, Mr Mizzau suffered an exacerbation of a longstanding social anxiety disorder with depression developing in the course of his duties with the Respondent.[9] He believed he was subject to unjust behaviour and humiliation and developed severe anxiety. He believed he was doing his job and doing what was asked of him.
[9] Exhibit Z1 at 30 and oral evidence given 7 March 2020.
In addition, Associate Professor Robertson was of the view that Mr Mizzau also suffered a moral injury which is outside the normal range of human behaviour. This is a condition which can be very disabling in terms of mental health and is a manifestation of confronting something that outrages a person’s moral sense. For Mr Mizzau, this was “the deep psychological affront of the betrayal and disloyalty of his employer with whom he had spent around three decades of work.”[10]
[10] Exhibit Z1 at 30.
Evidence of Dr Champion, Consultant Psychiatrist
Dr Champion assessed Mr Mizzau on 26 April 2019 at the request of the Respondent’s Solicitors. He provided a report dated 6 May 2019[11] and gave evidence at the hearing.
[11] Exhibit Z1 at 37.
In April 2019 Dr Champion diagnosed Mr Mizzau as suffering ”Mixed Anxiety/depressive disorder, best diagnosed as an Adjustment Disorder, most likely involving the underlying social anxiety disorder and a reaction to the workplace events of 2015, in particular being placed on a PIP [Performance Improvement Plan].”[12] When he gave evidence Dr Champion expressed the opinion that Mr Mizzau had a long history of social anxiety disorder which he kept under control. It was the September 2015 meeting, in which he was advised that he was to be placed on a performance improvement plan which caused his Adjustment Disorder.[13]
[12] Exhibit R1 at 49.
[13] Transcript 08/04/2020 at 71.
In the opinion of Dr Champion, Mr Mizzau sustained a psychiatric condition in or around September 2015 as claimed in his workers compensation claim made 25 May 2018.[14]
[14] Exhibit R1 at 85.
Nature of the ailment suffered by Mr Mizzau in September 2015
On the basis of the evidence of Associate Professor Robertson I am satisfied that in September 2015, Mr Mizzau suffered an exacerbation of a longstanding social anxiety disorder with developing depression. Although Dr Champion described Mr Mizzau’s condition slightly differently, his evidence that Mr Mizzau sustained a psychiatric condition as claimed (“anxiety”[15]) is consistent with Associate Professor Robertson’s diagnosis.
F: WAS THE AGGRAVATION OF THE AILMENT “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MR MIZZAU’S EMPLOYMENT BY THE RESPONDENT, AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?
[15] See paragraph 2 of these reasons.
Based on the evidence of Dr Lam, Associate Professor Robertson and Dr Champion referred to in paragraphs 20 to 26 above, I am satisfied that the aggravation of Mr Mizzau’s social anxiety disorder and his depression was contributed to, to a significant degree, by his employment by the Respondent.
G: WAS THE DISEASE SUFFERED “AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF [MR MIZZAU’S] EMPLOYMENT”?
In Comcare v Martin the High Court said, in part:
44.The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee "as a result of" reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.
45.When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment…[16]
[16] [2016] HCA 43 at [44]-[45].
The Respondent argued that “the informal meetings between Ms Ijpma and the Applicant as well as the Meeting and the placing of the Applicant on the PIP constituted reasonable administrative action taken in a reasonable manner.”[17]
[17] Respondent’s Statement of Issues, Facts and Contentions dated 27 February 2020 at [4.6]; exhibit Z1 at 24.
Evidence of Mr Mizzau
In his statement dated 24 July 2019[18] Mr Mizzau said, in part:
[18] Exhibit Z1 at 1.
The trigger for the problems that I encountered at TNT, started after [Mr P] left TNT. [Mr P] was the national inventory manager. He worked on a full-time basis. [Mr P] was made redundant in approximately 2015, When [Mr P] left, the then finance director [Mr H], advised me that I was going to be seconded to do a major part of [Mr P’s] role, I was to do [Mr P’s] role in addition to my existing duties as senior analyst.
On [Mr P’s] very last day I was given a two-hour handover. [Mr P] said to the finance director In my presence, that a two-hour handover was completely Inadequate given the fact that he had over 40 years of experience, and that I didn't know the national inventory role.
From the time that [Mr P] left TNT, I continued doing my role as senior business analyst planning. I was still expected to perform my duties as senior business analyst.
I am unable to precisely quantify what proportion of [Mr P’s] tasks I got. But it is my firm belief I was handed a major part of [Mr P’s] national role as It took the majority of my time.
From when [Mr P] left TNT, in addition to my senior business planning and analysis role, I now had to do the following additional tasks that were part of [Mr P’s] role:
a.Meetings with PMA Solutions, (supplier of materials required for transporting goods) at their site;
b.Dealing with internal issues in respect of the transition of the work to PMA Solutions;
c.Meeting people and making and receiving phone calls in respect of inventory issues;
d.Sending and receiving emails in respect of inventory issues;
e.Liaising with PMA to order inventory.
f.improving the efficiencies in the many processes and interfaces between TNT and PMA Solutions as well as TNT’s internal processes.
Before [Mr P] left, and while I was performing the role of senior business analyst planning only, I would work Monday to Friday a minimum of eight hours. I would say I would average about 9 hours a day at work by five days a week.
When [Mr P] left and I got his additional work, my hours increased to about 10 hours a day 5 days a week.
In order to deal with the additional work from the national inventory role, I prioritised and decided to deal with the essential part of my role as senior business analyst planning.
Before I received the additional work of the national inventory role, I was expected to use my own initiative in identify areas within the business where I thought things could be improved for analysis. One of those areas was working on business data capture with the IT Department.
When I received the additional work from the new national inventory role, I let go the expected self-initiatives and only focused on the essential part of my role as senior business analyst planning and analysis, such as the weekly, monthly and year-to-date analysis reporting.
I did this because I quickly realised that the national inventory role was critical for TNT. in operating its primary function, i.e. in picking up and delivering customer’s consignments.
Early on in my additional national inventory role, there was an instance where an inventory item, required for packaging consignments, ran out of stock. This has an impact to customers. In a senior committee meeting the Sales Director raised the issue to the embarrassment of the Finance Director. The Finance Director brought this to my attention and sternly warned me that going forward to never allow any item to run out of stock. 2
A few months into the additional role I received a recognition award known as the "Orange Award” for my work in taking on the national inventory national inventory role. I attach it.
The award was presented to me by finance director [Mr H] in the presence of the finance department.
I was committed in taking on the additional work from the national inventory national inventory, as it was a new and serious challenge.
This went on for about a year or more.
Then a new finance director was appointed, Ian Hamilton. Sometime after Renata Ijpma started to tell me that I was spending too much time on the national inventory side of my role. I advised Renata that I couldn't help this as the national inventory role required that level of attention and input. I suggested she take away the national. inventory role and hand the role over to another person. Renate would not offer any serious solution or plan to reduce my time for managing the national inventory role.
The national inventory role is a critical part of the business. That role requires the ordering of packaging items that are required to package and transport consignments. That is what TNT does. If there are missing packaging items, then this impacts the ability for TNT to pick-up and deliver customer’s consignments on time. It would lead to TNT losing Customers. In terms of the scale of the inventory required, it is in the order of millions of items and dollars. National inventory affects TNT depots Australia wide. The inventory required was substantial and this was a fundamental part of the business. To neglect or fail would have led to serious implications for TNT, its customers and myself.
Renata would say things like “well by now Edward, you should have got the inventory part of your role down to about 20%, but it's still at 50% of your role". But Renata didn't understand or didn't appear to want to understand, the work that was required with the inventory. She would not offer a serious plan or solution.
The situation continued on in this manner. I was doing my best and I was doing what I thought was in the best interests of TNT. I was continuing to do the essential parts of my senior business analyst role.
To be fair, the national inventory role did at times impact upon some of my tasks within the senior business analyst role. This was because of the time taken in doing inventory work.
Every now and then, when Renata would raise the issue with me, I would tell her that my ability to meet all of the tasks within the senior business analyst role was being compromised by the time I was spending with the national inventory role.
Then on 1 September 2015 I was requested to attend a meeting with Renata Ijpma and Chelsea Lloyd-Jones of Human Resources (HR) department.
Chelsea is from HR. We had the meeting on 2 September 2015. Renata raised with me concerns she had about my analysis and forecasting. I didn’t have time to get a support person. I advised Chelsea and Renata that I had been performing two roles, analysis and managerial.
At that meeting I was advised that I was to be placed under a performance management plan.
I was stunned that I was first issued with the email 1 September 2015 to attend the meeting, and I was further stunned by what occurred at the meeting of 2 September 2015. I felt gutted after that meeting. I found it difficult to understand how I could be in that position and treated indifferently after 28 years of service. I thought it was fundamentally unfair, that I was being criticised and performance managed, and no consideration was given to the fact that I had taken on additional responsibilities. After the meeting I went and saw Dr Janet Lamb, general practitioner and I advised her that I was feeling psychologically distressed because I thought I could lose my job.
I sent a letter to Renata on 9 September 2015 setting out my concerns. I was fearful that I was going to lose my job. It was very stressful.
I went off work on 14 September 2015 as I was feeling psychologically unwell. I felt unsupported.
I found the approach taken to me unreasonable. I thought TNT’s approach to me was hostile. Particularly from Renata. It was unreasonable to put me under a performance management plan, when I have been given the additional tasks as a result of [Mr P] leaving and me giving extra work from his role. [Mr P] had been working with TNT for 40 years and he had a lot of knowledge in his role. It was unreasonable to expect me to pick up extra work and deal with it as efficiently as [Mr P] did because I simply didn't have the experience or length of time dealing with the inventory.
I had no proper handover and no proper support. I felt a great feeling of injustice.

In the national inventory role Mr Mizzau was responsible for ensuring approximately 50 depots were kept fully stocked with all the supplies necessary for transporting goods, such as boxes, packaging and consignment notes. His best estimate is that in the first six months in the role he spent 60% of his time working in it and thereafter, about 40%.
When cross-examined Mr Mizzau agreed that he had missed deadlines in his analyst role during 2014 by reason of the need to give priority to his national inventory work. This was particularly pressing after the warning given to him by the Finance Director when the depots ran out of an item of stock.
I accept Mr Mizzau’s evidence.
Evidence of Ms Ijpma, Business Analyst/Supervisor
Ms Ijpma commenced employment by the Respondent as a Business Analyst in 2000. She provided a statement dated 2 November 2019[19] and gave evidence at the hearing.
[19] Exhibit Z1 at 16.
In a review of Mr Mizzau’s performance for the 2014 calendar year, Ms Ijpma rated Mr Mizzau as “E” which corresponded to “requires action”. This was reflective of his failure to meet deadlines.
By July 2015 Ms Ijpma considered that Mr Mizzau’s performance had not improved as he had continued to fail to meet deadlines. At about this time she increased the frequency of their informal meetings and informed Mr Mizzau that if he failed to meet the deadline with monthly reports he would be performance managed. As he failed to meet a deadline set for 4 August 2015, Ms Ijpma informed Mr Mizzau that “the matter would now be escalated to performance management.”[20]
[20] Exhibit Z1 at 17.
In her statement Ms Ijpma described the September 2015 meeting and the circumstances which preceded it, as follows:
On 1 September 2015, Mr Mizzau was asked to attend a meeting with Ms Lloyd Jones from Human Resources and myself the following day to discuss his performance management. He indicated that he wanted a support person to be present at the meeting but that his support person would not be available until 3 or 4 September 2015.1 spoke with Human Resources and enquired about how best to respond to Mr Mizzau’s request. I was told by Human Resources that it was appropriate to go ahead with the meeting on 2 September 2015 in order to avoid delaying the meeting. In accordance with what Human Resources told me, I emailed Mr Mizzau and indicated that he was formally directed to attend the meeting on 2 September 2015.
On 2 September 2015, Ms Lloyd-Jones, Mr Mizzau and I had a meeting to discuss Mr Mizzau being placed on a performance management plan (the meeting). I told Mr Mizzau that this had occurred due to his continued failure to meet deadlines with his monthly and quarterly business reports and his budget reports for overheads. We discussed the implementation of a plan to help Mr Mizzau apportion his time for each of his tasks and to deliver reports on time. Mr Mizzau agreed to abide by the plan.
At the meeting, Mr Mizzau enquired as to whether the inventory tasks would be removed from his role and I indicated that they would be. It was my understanding that the tasks were going to be given to people in the Procurement team.
When she gave evidence at the hearing Ms Ijpma said that Mr Mizzau’s performance was satisfactory until 2013.[21] At the time he was allocated the extra duties Ms Ijpma was uncertain as to the amount of extra work which would be required of him but after he became used to the inventory work she expected that it would amount to an increase in his workload of about five per centum.[22]
[21] Transcript, 8 April 2020 at 22.
[22] Transcript, 8 April 2020 at 24.
On the question of the time for the handover from Mr P, Ms Ijpma was unaware that it was completed in about two hours and said that she recalled that it took one or two days. She was not involved in the handover.[23]
[23] Transcript, 8 April 2020 at 26.
Ms Ijpma became aware that Mr Mizzau was failing to meet deadlines about one year after he took on the extra work. During that first year there were no problems with his meeting deadlines.[24]
[24] Transcript, 8 April 2020 at 29.
During cross-examination, the following exchange took place between Ms Ijpma and counsel for Mr Mizzau:
Counsel: How many people in your team were working on the reports that were required, you know, monthly, weekly, quarterly? There was Mr Mizzau, earlier it was you, you said. Anybody else?
Ms Ijpma: Mr [redacted], (Indistinct).
Counsel: Okay. So there was a few people?
Ms Ijpma: Yes.
Counsel: All right. But if Mr Mizzau didn’t do his bit, was the result that deadlines would be missed, is that why you were looking to manage him to improve his performance?
Ms Ijpma: Correct.
Counsel: Is that right?
Ms Ijpma: Yes. Yes.
Later Counsel referred Ms Ijpma to the following excerpt from a performance appraisal of her performance during 2015:
The accuracy and timeliness of reporting for Australia has been good in 2015. There have been no surprises/errors and all key deadlines were achieved, recognised by the multiple awards from the head office for reporting.
Ms Ijpma said that the appraisal referred to the fact that no deadlines were missed by the team of which she was in charge because she made sure this did not happen. Mr Mizzau was a member of this team.
When Mr Mizzau requested that the meeting scheduled for 2 September 2015 be postponed for one or two days, Ms Ijpma sought the advice of the Human Resources department. She was told by the department that “it was appropriate to go ahead with this meeting as planned.” So far as she could recall she was not told to refuse the extension of time requested.[25] Based on the advice she was given Ms Ijpma made the decision to proceed with the meeting on 2 September 2015.
[25] Transcript, 8 April 2020 at 41.
The meeting of 2 September 2015
Between 5:10 pm on 1 September 2015 and 9:25 am on 2 September 2015 the following exchange of emails (omitting formal parts) took place between Mr Mizzau and Ms Ijpma:
Email of Mr Mizzau to Ms Ijpma, 1 September 2015 at 5:10PM
I have declined your HR meeting as I need time to organise a support person which I will do asap. I am happy to attend the formal meeting regarding your concerns raised however before attending I would first like to have an informal meeting with Chelsey and provide a background to the TNT Stores management role that I am responsible for and my concerns and impacts it has had on my Analysis role.
Email of Ms Ijpma to Mr Mizzau, 1 September 2015 at 6:14PM
I confirm that you are required to attend the meeting with me, also in the presence of Chelsey, as scheduled.
You are welcome to have a support person of choice present. If your support person of choice is not available you are welcome to have an alternative support person present.
During the meeting you will be given the opportunity to discuss your performance as well as what may be currently impacting on your ability to achieve.
Email of Mr Mizzau to Ms Ijpma, 2 September 2015 at 9:12AM
I will not attend meeting without my support person. I do not have an alternative support person at this point, however my support person will confirm attendance either Thursday or Friday this week.
Email of Ms Ijpma to Mr Mizzau, 2 September 2015 at 9:25AM
Please be advised that you are formally directed to attend the meeting as scheduled at 11:30am to discuss concerns regarding your performance.
You are entitled to bring a support person to the meeting.
Failure to attend the interview as directed may result in disciplinary action, which may include termination of employment.[26]
[26] Exhibit R1 at 6-8.
The minutes of the meeting of 2 September 2015 follow:
Chelsey opened the meeting at 11:30am by advising that Edward had been invited to the meeting so the Renate can discuss concerns regarding his performance, give him an opportunity to respond and set expectations. I explained my role and that I would be taking notes of the meeting.
Renate advised Edward that she has concerns from Edwards June and July performance that had been discussed during regular informal one on ones. These concerns related to analysis and forecasting.
Renate explained to Edward the requirements regarding MBR and Budgets for 2016 and set dates for Budget drafts throughout September and October.
Chelsey asked Edward now is his opportunity to discuss any concerns that may be impacting on his ability to meet acceptable performance standards.
Edward said that he wanted it notes that he wanted a support person, but felt 24 hours was not sufficient in order to organise a support person. Edward wanted it noted that he felt this was unfair and that his support person would be available on Thursday or Friday.
Edward said that he felt stressed attending the meeting and has been employee of TNT for 28 years. Edward said that he did not want to have a TNT employee as his support person.
Edward said that he has been performing two roles - analysis and managerial. Edward said that he has been asked to be relieved of the management role as it was affecting his performance in analysis and feels that a performance management plan is unfair when he has two roles.
Renate asked Edward to confirm when he raised concerns about the stores component of his role. Edward was unable to provide a date, but said that it was about one year ago. (I note this point was not agreed on by Edward and Renate).
Renate explained that at the time stores became a part of Edwards role that his tasks were reviewed and at that time 2013 'revenue' was taken out of his role.
Chelsey explained that performance management by way of a performance improvement plan was to assist and support Edward in achieving an acceptable level of performance.
Renate said to Edward that she would like to see improvement in Edwards performance.
The meeting closed at 11:45am
Additional minutes - amendments in blue made on 04/09/2015
Edward said that communication between Renate and himself was not good and needed improvement.
Edward asked Renate when stores would be moved from his role. Renate did not provide a date however explained that it may be gone soon.
Chelsey said she had did have the background of the Stores duties. Edward explained his reason in requesting an informal meeting with Chelsey before the formal meeting was to provide her with an explanation of the duties and time required for the Stores Management role and its impact on the Analysis role.
In response Chelsey advised Edward that the purpose of the meeting was his opportunity to advise of anything that was impacting on your ability to achieve an acceptable level of performance, and that this was the appropriate forum. It was also noted by Chelsey that if Edward had concerns it is appropriate to discuss these concerns directly with his line manager.
Renate said that Edward should be able to perform the duties and tasks of analysis and planning, as well as the duties and tasks of stores. Renate said that at the time the duties of stores became a part of Edwards role, the duties were reviewed and revenue budget and forecast was removed as a duty/task. Renate noted that a UTS Student was currently assisting Edward with the duties and tasks of the Stores aspect of his role.
Edward said it was not fair to have been forced into a meeting without his support person.
In response Chelsey advised that Edward was directed to attend a meeting which is a reasonable management directive and that he was given the opportunity to have a support person present with adequate notice, or an alternative support person.
For subsequent meetings Edward asked if he could please be given more than 24 hour notice allowing reasonable time for his Support person to attend as they have commitments.
On Edward's objection that a performance plan (PR) was not fair and appropriate whilst he continues to perform 2 roles (Analysis and TNT stores). In response Chelsey explained that he is expected to be achieving in all aspects of his role, including all duties and tasks, and directed that Performance Improvement plan would go ahead.
(It is noted that there Renate defines the stores component of Edwards role to be "tasks and duties", not a separate and additional role).[27]
[27] Exhibit Z1 at 9-10.
On 9 September 2015 Mr Mizzau sent a letter to Ms Lloyd-Jones, HR Business partner, as follows:
I wish to lodge a formal complaint regarding the manner in which I was required to attend a performance meeting last Wednesday 2 September.
As previously ventilated by me, I had not had an adequate opportunity to make arrangements for my support person to attend, considering I was given less than 24 hours' notice to attend.
I explained that I did not want to ask a fellow employee to attend the meeting with me as I did not want to put anyone in such a position.
I am sure we could agree that this meeting was not 'urgent' in the sense that it could not have been postponed for a day or two.
At 9.38AM on 2 September, you sent me an email which was materially identical to one Renate Ijpma had sent me (copied to you) at 9.25AM that morning.
I consider the tone of that email to be extremely unhelpful, coming from a HR manager.
I made it clear that I was distressed and anxious about being threatened to attend a meeting without having my preferred support person present.
Rather than providing a measure of support for an employee with almost 30 years' service, you simply repeated Renate's statement that "....a failure to attend...may result in disciplinary action which may include termination of employment."
I cannot say why TNT management felt it was so necessary to push forward with this meeting at such short notice in such an antagonistic fashion but, suffice it to say, it has left me feeling extremely anxious.
I wish you to treat this as a formal grievance and I look forward to your prompt response as to how TNT intends to investigate this further.
I am of the view that such an investigation should be independent of your involvement.[28]
Reasoning
[28] Exhibit Z1 at 16.
The “reasonable administrative action” relied upon by the Respondent
As noted earlier in these reasons, the reasonable administrative action relied upon by the Respondent consists of “the informal meetings between Ms Ijpma and the Applicant as well as the Meeting and the placing of the Applicant on the PIP constituted reasonable administrative action taken in a reasonable manner.”[29]
[29] Respondent’s Statement of Issues, Facts and Contentions dated 27 February 2020 at [4.6]; exhibit Z1 at 24.
Assessment of the weight of evidence
I have found that Mr Mizzau was an honest witness who gave his evidence to the best of his recollection. Having observed him give evidence I am satisfied that he was a reliable historian.
I do not have the same satisfaction in relation to the evidence of Ms Ijpma. I accept that she was being asked to give evidence of events which took place five years previously in circumstances where she did not have the same motivation to retain details of those events as did Mr Mizzau. However, at times she was evasive in her answers, particularly in relation to her evidence as to who made the decision to refuse Mr Mizzau’s request that the September 2015 meeting be re-scheduled. It was only after detailed questioning that Ms Ijpma admitted that it was her decision, albeit after she sought the advice of the Human Resources department.
I have also taken into account that when she gave evidence at the hearing, Ms Ijpma suggested that Mr Mizzau’s failure to meet deadlines caused her reporting team to do likewise (see paragraph 42 of these reasons). After she was referred to her own appraisal she admitted that the reports made by her team (which included Mr Mizzau) were not delayed. She undertook extra work to ensure this.
In her statement,[30] Ms Ijpma said that her recollection was that there was a one or two-day handover of the new tasks to Mr Mizzau. When cross-examined Ms Ijpma said that she had no role in the handover. I am satisfied that her recollection in this regard is incorrect.
[30] Exhibit Z1 at 16.
I accept Mr Mizzau’s evidence and make findings of fact in accord with it. Where there is a discrepancy between his evidence and that of Ms Ijpma, I prefer the evidence of Mr Mizzau.
Is the action relied upon, “administrative action” within the meaning of the Act?
In Commonwealth Bank of Australia v Reeve,[31] Rares and Tracey JJ said:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment … Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[32]
[31] (2012) 199 FCR 463.
[32] Ibid at [60], [62].
Applying what was said by the Full Court, I am satisfied that each of the actions relied upon by the Respondent constitutes relevant “administrative action” in this matter. They all related to the terms of Mr Mizzau’s engagement and his performance of the duties of his employment.
Was the administrative action “reasonable”?
It is not in dispute that sometime after he was given additional duties, Mr Mizzau was not always able to meet the deadlines set for him to deliver the reports for which he was responsible. Clearly this was an issue which needed to be addressed in the interests of all concerned.
On the basis of his evidence of Mr Mizzau and Ms Ijpma, I am satisfied that the action of Ms Ijpma meeting informally with Mr Mizzau to discuss this issue was reasonable.
On the basis of the evidence of Mr Mizzau I am satisfied that neither the holding of the meeting on 2 September 2015 nor the placing of Mr Mizzau on a performance improvement plan was reasonable administrative action at that time.
My reasons for this conclusion are:
(i)Mr Mizzau had been employed by the Respondent and had performed well for 28 years before he was given additional duties outside his area of expertise;
(ii)he performed his duties (both reporting and in relation to the national inventory) for about 12 months by working additional hours;
(iii)he was awarded special recognition for his performance of his additional role (the Orange Award);[33]
(iv)prior to September 2015 he had advised Ms Ijpma, his manager, that he was having difficulty performing both roles;
(v)it was not until about July 2015 that Ms Ijpma became sufficiently concerned as to his performance to hold meetings more frequently than usual to discuss the issue;
(vi)the meeting was held pursuant to a formal direction and under threat of possible disciplinary action, including termination of employment;
(vii)the placing of Mr Mizzau on a performance improvement plan without further consideration of his concerns raised at the meeting.[34]
[33] Transcript, 8 April 2020 at 7.
[34] The additional minutes of the meeting record that Ms Lloyd-Jones directed that the performance improvement plan go ahead (at paragraph 31 of these reasons).
Was the administrative action taken in a “reasonable manner”?
The manner in which the action is taken must be “reasonable”; the Act does not require that it be faultless.
In Comcare v Martinez (No 2),[35] the Federal Court cited with approval the judgement of the Supreme Court of South Australia in Keen v Workers Rehabilitation and Compensation Corporation,[36] in which it was said:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
[35] (2013) 212 FCR 272 at [83].
[36] (1998) 71 SASR 42 at [47]-[48].

I accept the evidence of Mr Mizzau as to the manner in which the relevant action was taken.
I am satisfied that the informal meetings held before 2 September 2015 were held in a reasonable manner.
I am satisfied that, even if the holding of the September 2015 meeting was found to have been reasonable administrative action, the manner in which the action was taken was not reasonable.
On 4 August 2015 Ms Ijpma told Mr Mizzau that the matter of his performance would be escalated to a performance management plan. The fact that no such action was commenced until 1 September 2015 shows that the Respondent did not regard the need for such action as being of particular urgency. Nevertheless, the Respondent, by the actions of Ms Ijpma, refused Mr Mizzau’s request for a delay of one or two days to enable him to have his preferred support person attend the meeting with him. He was put under unnecessary pressure by the emails of Ms Ijpma and Ms Lloyd-Jones (13 minutes apart) threatening disciplinary action. The Respondent did not offer an explanation as to why two emails were appropriate.
Mr Mizzau’s request for a postponement of no more than 48 hours was reasonable in the circumstances. He was faced with a meeting with his manager and a member of the Human Resources branch to discuss his performance, having previously been informed that the matter was to be escalated to performance management. Just as the Respondent considered that it was appropriate that it have two representatives at the meeting, so it was appropriate that Mr Mizzau have a support person with him. His desire not to involve a fellow employee was appropriate. Surprisingly, the Respondent failed to recognise this.
The Respondent has offered no explanation whatsoever as to why the meeting could not have been rescheduled to meet Mr Mizzau’s request. There has been no suggestion that either Ms Ijpma or Ms Lloyd-Jones was unavailable for a postponed meeting or that there was any other reason why the meeting had to be held on such short notice on the day specified.
In these circumstances, the reaction of the Respondent to issue two directions to attend the September 2015 meeting under threat of disciplinary action, including possible termination of employment, was not a reasonable manner of proceeding.
For the same reasons I am satisfied that the placing of Mr Mizzau on a performance improvement plan without giving him the opportunity to take part in a meeting to discuss the issues with the benefit of a support person of his choice, was not a reasonable manner of taking this action.
Was the administrative action taken “in respect of” Mr Mizzau’s employment?
In Comcare v Drinkwater,[37] the Full Court of the Federal Court said:
… The present case is not about Departmental directions as to how Mr Drinkwater was to do his job in his then position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.
In the present case, the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ… It was action that took Mr Drinkwater’s employment “as a factum”, to use the language of Rares and Tracey JJ in CBA v Reeve at [60]. … This action was plainly taken “in respect of” Mr Drinkwater’s employment because it was action directed specifically to his employment and taken in respect of his employment. A determination by the employer that the employee will move from his or her existing post to a new post in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee.[38]
[37] (2018) 260 FCR 150.
[38] Ibid at [69]-[70].
Applying the principles set out by the Full Court in Commonwealth Bank of Australia v Reeve and Comcare v Drinkwater, I am satisfied that the administrative action was taken in respect of Mr Mizzau’s employment by the Respondent. The action was specifically directed to Mr Mizzau’s employment and taken in respect of that employment.
Did Mr Mizzau suffer the an exacerbation of a social anxiety disorder and depression “as a result of” the reasonable administrative action?
I have concluded that, of the administrative action relied upon by the Respondent to activate the exclusionary provision of section 5A, only the informal meetings prior to the September meeting were reasonable administrative action carried out in a reasonable manner.
In Comcare v Martin,[39] the High Court considered the causal connection which is required to give rise to the operation of the exclusion in subsection 5A(1).
[39] (2016) 258 CLR 467.
The High Court said, in part:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.[40]
[40] Ibid at [47].
I am satisfied that in the months leading up to the September 2015 meeting Mr Mizzau was continuing to undertake the inventory work as well as his reporting work despite his difficulties with meeting his reporting deadlines. He was meeting with Ms Ijpma and advising her that his ability to fulfill his senior business analyst role was being compromised.
It was the notification of the September 2015 meet which distressed Mr Mizzau. He was “stunned” when he received the notice and felt that it was “fundamentally unfair” that he was placed on performance management.[41] At his request this was noted in the minutes of the meeting. He told Ms Ijpma and Ms Lloyd-Jones that he felt stressed by attending the meeting and that he did not want a fellow employee as his support person.[42]
[41] Paragraph 30 of these reasons.
[42] Paragraph 31 of these reasons.
Within a week of the meeting Mr Mizzau made a written complaint regarding the manner in which he was required to attend. He again expressed his distress and anxiety about the threats made by Ms Ijpma and Ms Lloyd-Jones.[43]
[43] Paragraph 48 of these reasons.
Mr Mizzau consulted his General Practitioner after the meeting and was diagnosed with stress and anxiety.
Dr Champion referred particularly to Mr Mizzau’s being placed on a performance improvement plan when he noted Mr Mizzau’s reaction to the workplace events of 2015. In the opinion of Dr Champion it was the September 2015 meeting and the advice of the plan which caused Mr Mizzau to suffer an Adjustment Disorder.[44]
[44] Paragraph 25 of these reasons.
Associate Professor Robertson did not distinguish between the effects of the several administrative actions relied upon by the Respondent. However, in his opinion Mr Mizzau suffered a moral injury by reason of “the deep psychological affront of the betrayal and disloyalty of his employer with whom he had spent around three decades of work.” [45]This is consistent with the effect of the September 2015 meeting and the imposition of the performance improvement plan, rather than any effect the preceding informal meetings may have had on Mr Mizzau.
[45] Para graph 23 of these reasons.
I am satisfied that without the administrative action of the informal meetings which preceded the September 2015 meeting, Mr Mizzau would still have suffered the ailment he did, as a result of the holding of the September 2015 meeting and his placement on the performance improvement plan.
The causal connection between the disease Mr Mizzau suffers and the informal meetings prior to 2 September 2015 is not met.
H: CONCLUSION
The reviewable decision made 24 July 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Mr Mizzau in respect of the claimed injury, will be set aside.
In substitution it will be decided that, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury, being an exacerbation of social anxiety disorder and depression, deemed to have been sustained by him on 21 September 2015.
Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Mr Mizzau in these proceedings.

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

............................[SGD]............................................
Associate
Dated: 1 February 2021

Date(s) of hearing: 7-9 April 2020, 14 August 2020

Counsel for the Applicant: L Grey

Solicitors for the Applicant: J Matthews, Brydens Law Pty Ltd

Counsel for the Respondent: M Gollan

Solicitors for the Respondent: K Miller, Sparke Helmore

[2021] AATA 74

1 February 2021

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Procedural Fairness

Appeal

Statutory Construction

Negligence

Date(s) of hearing:	7-9 April 2020, 14 August 2020
Counsel for the Applicant:	L Grey
Solicitors for the Applicant:	J Matthews, Brydens Law Pty Ltd
Counsel for the Respondent:	M Gollan
Solicitors for the Respondent:	K Miller, Sparke Helmore