Modirzadeh and Comcare
[2004] AATA 914
•27 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 914
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/15
GENERAL ADMINISTRATIVE DIVISION ) Re ALEX MODIRZADEH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date27 August 2004
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury - ailment - adjustment disorder – materially contributed to by employment – disease - failure to obtain a promotion - reasonable disciplinary action - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss4, 5, 7, 14
Workplace Relations Act 1996 s 170CM
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Rizkallah and Australian Postal Corporation (1991) 14 AAR 348
Re Wicks and Telstra Corporation [1997] AAT 12448
Re Inglis and Comcare (1997) 49 ALD 193
Re Arthur and Comcare [2004] AATA 241
Comcare v Mooi (1996) 69 FCR 439
Trewin v Comcare (1998) 84 FCR 171
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Weigand v Comcare Australia (2002) FCA 1465
Re Bennett and Comcare (1992) 17 AAR 18
REASONS FOR DECISION
August 2004 Mr S. Webb, Member 1. By this application Mr Modirzadeh is seeking relief from a reviewable decision made by a Comcare Australia delegate on 20 September 2000 to affirm a primary determination dated 30 May 2000 to deny his claim for compensation in relation to “general anxiety stress”. Mr Modirzadeh’s compensation claim concerns alleged incidents in his employment by the Australian Capital Territory Electricity and Water Corporation Limited (“ACTEW”).
2. The matter came on for hearing in Canberra on 19, 20 and 21 April 2004 and 23 and 24 June 2004. At the hearing Mr Modirzadeh was represented by Mr D. Richards, counsel. Comcare Australia was represented by Mr C. Clark, counsel. Mr Modirzadeh, Dr J. Saboisky, Dr W. Knox, Ms E. Cullen, Mr G. Parker, Mr C. Hodgson, Mr C. Larsen, and Ms T. Hutchison gave oral evidence at the hearing. Materials were tendered and labelled as exhibits during the hearing.
3. Written submissions were tendered by both parties following conclusion of the hearing.
factual context
4. The following material facts arise from the evidence.
5. Mr Modirzadeh was born on 3 February 1945. He married in 1976 and migrated to Australia in January 1983. There are four children of the marriage.
6. From 1985 to 1993 he was employed by the New South Wales Department of Community Services.
7. Mr Modirzadeh commenced employment by ACTEW on 17 June 1993. He worked at the Senior Information Technology Officer C (“SITO C”) level.
8. On or about 26 June 1996 Mr Modirzadeh purchased and moved into “a house and land package” at 39 Ivo Whitton Circuit in the Glen Eagles Estate, Kambah.
9. In or about August 1998 Mr Modirzadeh and other Information Technology Officers were offered voluntary redundancies in consequence of ACTEW restructuring. He declined the offer. Mr Modirzadeh attempted to obtain a promotion. He applied and was interviewed for at least one vacant ACTEW position at the SITO C level, but was not successful. He declined an offer of transfer to an Information Technology Officer 1/2 position.
10. Mr Modirzadeh’s position was not “broad-banded” in the restructure, as occurred in some other cases within his area, and he was not offered a promotion.
11. In the period from January 1999 and 30 May 2000 Mr Modirzadeh was involved in numerous reviews, meetings and communications in his employment. It is convenient to set out relevant facts in chronology for ease of reference, even though so doing will increase the length of these reasons.
12. On or about 25 January 1999 Mr Modirzadeh was assigned duties working on the System Development Methodology Project, reporting to the Branch Manager, Mr G. Hill.
13. On 12 February 1999, Mr Modirzadeh agreed upon a Performance Plan with Mr E. Hocking and Mr J. Neal (Exhibit R15). On 27 May 1999 Mr Modirzadeh informed Mr Hill (T13, folio 168):
“- I have not been advised so far about the outcome of the work at the end of the period (12/5/99), In summary are you aware of the details of my personal performance planning?”
14. On 25 June 1999 Mr Modirzadeh met with Mr Hill and Ms T. Hutchison, Human Resources Manager. The agreed minutes of that meeting record (Exhibit R18):
“Graham [Hill] advised Alex [Modirzadeh] that due to the large amounts of time involved the work on a System Development methodology would cease. Graham acknowledged Alex’ ability to analyse the material involved.
Graham then requested that Alex produce a list of his skills and possible training requirements in order that meaningful work could be allocated. It was agreed that this list would be completed by Monday 28 June.
Alex complained that he had not been considered for promotion and Graham explained that the normal way for this to happen was through successful application for a vacant position at a higher level. Tania [Hutchison] also explained that positions were only broadbanded when circumstances had changed, for example when a higher level of skill was required.”
Mr Modirzadeh annotated those minutes with the following statement on 30 June 1999:
“Alex mentioned that due to his ability in handling variety of complex tasks allocated to him during 6 years of his employment in the Corporation, he deserves to have his position broadbanded as well.”
15. On 30 June 1999 Mr Modirzadeh wrote (Exhibit R17) to Mr J. Neal in response to a memo (Exhibit R16) from Mr Neal dated 24 June 1999. Mr Modirzadeh disputed a number of matters in Mr Neal’s memo.
16. On 7 July 1999 Mr Modirzadeh met with Ms E. Bednarz. The agreed notes of that meeting specify the work Mr Modirzadeh was to perform at the AHO9 level (Exhibit R19). On 13 August 1999 Mr Modirzadeh and Ms Bednarz agreed upon a document setting out a review of Mr Modirzadeh’s Performance Plan (Exhibit R21). On 18 August 1999 Mr Modirzadeh formally discussed issues concerning his performance with Mr Hill, Mr L. Ruschena, Ms Bednarz and Mr C. Hodgson (Exhibit R20).
17. Mr Modirzadeh’s Performance Plan was reviewed on or about 26 August 1999. Comments concerning Mr Modirzadeh’s performance were recorded by Ms Bednarz on 27 August 1999 and by Mr Modirzadeh thereafter (Exhibit R22).
18. On 14 September 1999 Mr Modirzadeh attended a formal meeting with Mr Davies, Mr Hill, Mr Hodgson and Ms Bednarz. Ms Bednarz and Mr Hill created a record of that meeting (Exhibit R23) in which it is recorded that, during the meeting, Ms Bednarz identified inadequacies in Mr Modirzadeh’s performance and Mr Modirzadeh discussed his concerns about his supervision by Ms Bednarz. The meeting notes record agreement:
“that Mr Modirzadeh would receive a letter informing him of the status of the disciplinary process, details of the next stage and its potential outcomes.
…
that new milestones would be prepared to provide visibility of Mr Modirzadeh’s progress for the four week period commencing from the date of circulation of the record of the meeting.”
19. On 18 October 1999 Mr Modirzadeh was assigned to work with Mr G. Parker on the “WAIMS” project. He commenced that work on or about Monday 25 October 1999.
20. On 28 October 1999 Mr Modirzadeh sent an email to Mr Parker setting out “Issues Related to Commencing work together” (Exhibit R26) in which he set out “suggestions as a result of the incident that occurs during the three days of our work together”. The “incident” referred to concerned Mr Modirzadeh’s late attendance at a meeting to discuss WAIMS report issues, allegedly as a result of not being informed by Mr Parker of the venue of the meeting, and the way in which Mr Parker allegedly treated him in that meeting. Mr Modirzadeh informed Mr Parker that he would “come downstairs to see you as soon as this memo is forwarded to you”, which he did. What then ensued is a matter of dispute, however it is clear that there was a difficult exchange between Mr Modirzadeh and Mr Parker while Mr Parker attempted to read Mr Modirzadeh’s email during the course of which Mr Parker told Mr Modirzadeh to “shut up and listen”. On 29 October 1999 Mr Modirzadeh sent an email to Mr Parker stating (Exhibit R26):
“…I am sure that our yesterday discussion was quite helpful to avoid misunderstanding. However, my apology that my yesterday memo has upset you.”
To which Mr Parker replied “OK, no problem, don’t worry about it”.
21. On 4 November 1999 Mr Ruschena wrote a letter to Mr Modirzadeh addressing performance issues and stating (Exhibit R29):
“ACTEW has repeatedly provided you opportunities to improve your skills…
However, your performance and behaviours do not improve…
We have also had one complaint from a major user Division…
Overall, you have not shown the appropriate initiative, skills level and ability to work unsupervised as is expected of a SITO C.
Consistent with the requirements of the Enterprise Agreement, clause 14, this letter will act as your final warning on your performance. A new performance plan, attached, outlines your work requirements over the next month.”
Mr Modirzadeh does not recall receiving the letter and the performance plan to which it refers is not in evidence.
22. In a Performance Review Summary dated 5 April 2000 Mr Parker reported (Exhibit R30):
“The recommendation of this report is that, on the basis of his performance in the Performance Review Reporting Project for FMMS, Mr Alex Modirzadeh be accepted as having performed at an average level for a SITO C for the technical tasks involved in this review and the volume of work successfully done in the time given to complete the project.
It is also recommended that Alex’s performance be further monitored in terms of his ability to form a successful working relationship with his customers, and also to the satisfaction of management of BSD that he is performing up to an acceptable average standard for a SITO C.
Over the period April through June 2000, Alex should be given the chance to establish an IT service relationship with a target customer area or areas, and that the customer be asked to report on their satisfaction with his service over this period.”
23. On 4 April 2000 Mr Parker sent a copy of the Performance Review Summary to Mr Modirzadeh. In response Mr Modirzadeh stated:
“This report totally conflict with what you have said and written about my work in the past.
In addition, most of the time you advised that it is better you contact the customer. Particularly after you have insulted me, however, I tried to avoid conflict, but I don’t think there was any problem regarding the customer relationship and they were quite happy about the work I have done for them.
This is absolutely amazing that I have to be again under review, because of the so-called deficiencies of the review project.”
Mr Parker responded, commenting that:
“I don’t think you have a great deal to be concerned about, just demonstrating to the satisfaction of your customers and suppliers that you can relate to them in a productive and mutually beneficial way, which is a normal requirement of the job, and is only under review because of your perceived track record in this area from the official file documents.”
24. On 10 April 2000 Mr Modirzadeh attended a meeting with Mr Parker and Mr C. Larsen, General Manager Business Systems. Mr Parker commented on that meeting and the issues discussed in an email dated 10 April 2000 (T13, folio 141-142):
“During the meeting, Alex…said that he was concerned about a directive from me that he not communicate directly with NEM team, BSD’s CIS support Phil Brown, or the CIS System Administrator (now acting Customer Accounts Manager) Jane Corkhill.
…
Alex and I had argued earlier on as a result of his refusal to accept this directive, and my assertion that I was concerned about his ability to relate productively to his customers, and Alex raised this issue in the meeting saying that as his supervisor I had been rude to him.
…
I suggest the review should continue for a period of one month from today’s date…”
25. The argument to which Mr Parker referred took place in a telephone conversation between Mr Modirzadeh and Mr Parker on 10 April 2000. Three witness statements are in evidence (Exhibits R34, R35 and R36) from people who overheard parts of that conversation in which Mr Parker communicated in a raised voice and told Mr Modirzadeh to “shut up and listen” before terminating the conversation.
26. On 11 April 2000 Mr Modirzadeh consulted Dr M. Yeung, general practitioner, who certified that Mr Modirzadeh was unfit for work from 11 to 13 April 2000 and was suffering from a “General anxiety state…caused by: stress at work (abused by supervisor)” as a result of “the injury” on 10 April 2000 (T6, folio 9). In his clinical notes Dr Yeung recorded:
“Stress at work +++ for 2-3/12 being abused 2X by supervisor – getting worse, very bad yesterday – sleep and tension headache and unable to eat yesterday – decided to have a few days off…advised counselling…”
In subsequent certificates Dr Yeung certified Mr Modirzadeh was unfit for work on 14, 17, 19 and 20 April 2000 (T6, folios 10-11). Dr Yeung recorded in his clinical notes of a consultation with Mr Modirzadeh on 14 April 2000:
“Sleeping better, but still has the tension headache made much worse yesterday by turning up at office for 3 minutes…advised counselling.”
27. On 17 April 2000 Mr Modirzadeh lodged a grievance complaint against his supervisor, Mr Parker (T7, folios 12-13).
28. On 19 April 2000 Ms T. Hutchison wrote to Mr Modirzadeh (Exhibit R40), and stated:
“Over the past six months your supervisors have repeatedly spoken to you in relation to your level of performance.
…
… Over the next month you will be required to define the scope and nature of the services to be provided to the customer, define and set project tasks and deadlines by mutual agreement with the customer and BSD management. Carsten Larsen as your supervisor will provide written directives as to what is required.
Consistent with the requirements of the Enterprise Agreement, clause 14, this letter will act as your final warning. Your General Manager, Carsten Larsen, will outline your work requirements over the next month. Carsten will review your performance on the 19th of May 2000 and a decision on your continuing employment with ACTEW Corporation will be made.”
That letter was delivered to Mr Modirzadeh at his home on 19 April 2000 while he was on sick leave.
29. On 28 April 2000 Mr Modirzadeh lodged a claim for compensation in relation to “General anxiety stress (abused by supervisor)” claiming that (T8, folio 16):
“The illness is as a result of offensive telephone conversation of the supervisor, Geoff Parker on 10-4-2000 at 11.20 am. This happened about 4 months ago but didn’t cause a severe illness and stress. At the time Paul Banninton x3119 was near him desk.”
In that form, Mr Modirzadeh claimed that he returned to work on 26 April 2000.
30. On 2 May 2000 Mr Modirzadeh consulted Dr Yeung and was certified unfit for work on that day (Exhibit A12).
31. On 18 May 2000 Ms E. Cullen, Work/Life Coordinator, and Mr H. Price, Davidson Trahaire, reported to Mr J. MacKay, Chief Executive Officer ACTEW, the outcome of their investigation of Mr Modirzadeh’s grievance claim (T12), concluding:
“On the question of whether harassment has occurred. we have found that this is not the case. We acknowledge that Alex [Modirzadeh] has received an offence at his supervisor telling him to “shut up and listen”, but from the evidence it is clear that Alex has been uncooperative in the face of reasonable direction from his supervisor…
It is our conclusion, however, that it is not appropriate, and could be viewed as a breach of the Code of Conduct guidelines, for a supervisor to tell a staff member to “shut up”…
From the evidence collected, Alex’s behaviour is also called into question…
We have also concluded that Alex has difficulty in receiving instructions and feedback...”
32. On 18 May 2000 Mr Modirzadeh met with Mr Larsen and was informed about the outcome of his grievance complaint.
33. On 18 May 2000 Mr Modirzadeh consulted Dr M. Faulkner.
34. On 26 May 2000 Mr Modirzadeh attended Dr Yeung’s surgery and was certified unfit for work from 26 May until 29 May 2000 inclusive (Exhibit A17). He attended the surgery again on 30 May 2000.
35. On 26 May 2000 Ms Hutchison sent a draft termination letter concerning Mr Modirzadeh’s employment by ACTEW to Mr Larsen for his comment by email and, on 29 May 2000 in a related email, stated:
“Chris [Hodgson] asked me was Alex [Modirzadeh] going to get the boot. I said I did not know it all depended on how well he coped with his project. No decision would be made until after we had spoken with Alex tomorrow. Chris said that Alex is going to argue the sick leave he took. I said that ACTEW had in fact taken this into account and had extended his project period.”
36. On 28 May 2000 in a document entitled “Performance Review Communications and Technical Alex Modirzadeh”, Mr Parker reported that Mr Modirzadeh displayed “serious deficiencies” in six areas “all of which are well below the requirements of any IT officer, not just a senior officer”.
37. On 26 May 2000 in an email responding to Mr Modirzadeh, Mr Larsen set out deficiencies in Mr Modirzadeh’s performance of the tasks he was required to perform during the performance review (Exhibit A16). Mr Modirzadeh responded to that email on 29 May 2000 stating:
“I returned from my sick leave today, I came to the office just to attend my performance meeting. I read this memo it sounded like you have judged me without discussing the issues with me.
…
As a result of stress, I can’t stay longer to respond to your memo in details today. However, I would like to discuss and clarify these issues before performance meeting.”
Mr Larsen responded later on that day, stating:
“I have read and considered your e-mail and don’t consider it a pre-judgement of you: it is simply giving correct analyses of the issues you raise, and I agree with Geoff [Hill] on these analyses.
…
You will be assessed on the outputs you have so far produced during the time allowed for this review.
I do not consider it a sufficient reason to delay the review.”
Mr Modirzadeh responded on 30 May 2000 to Mr Larsen’s email, stating:
“Then I suggest to discuss these issues in the review meeting. I can’t accept the review process to be conducted on the basis of your wrong assumptions.”
38. On 30 May 2000 Mr Modirzadeh attended a formal performance review meeting with Mr Larsen, Ms Hutchison and Mr Hodgson.
39. In a letter dated 30 May 2000 Mr MacKay stated (Exhibit R43):
“Over the past twelve months your supervisors have repeatedly spoken to you in relation to your level of performance consistent with the requirements of the organisation’s Enterprise Agreement 1999, Clause 14.
…
Over this period you have displayed serious deficiencies in the following areas…
Following discussions today between Carsten Larsen, General Manager Business Systems; Tania Hutchison, A/Director Human Resources; Chris Hodgson, Industrial Officer – CPSU and yourself on the above, I have made the decision to terminate your employment with ACTEW Corporation due to inefficiency and poor performance at the Senior Information Technology Officer C level over the past twelve months.”
40. On 30 May 2000 Comcare determined to “disallow” Mr Modirzadeh’s compensation claim (T16, folio 206). Comcare accepted that Mr Modirzadeh suffered “a disease, namely, “anxiety state”” and determined the “date of injury to be 11 April 2000”, concluding:
“I can find no evidence to substantiate your claim that your supervisor was abusive towards you. I therefore, believe that you have suffered a personal/normal reaction to a not unusual workplace situation and your claim is therefore not compensable.
In summary, while I am satisfied that you have suffered a “disease” as defined in the Act, I am not satisfied that your employment has materially contributed to your claimed condition. Consequently, I determine pursuant to section 14 of the SRC Act, that Comcare is not liable to pay compensation in respect to your claimed injury.”
41. Following cessation of Mr Modirzadeh’s employment he received income support payments from AMP Life Limited (“AMP”).
42. On 23 June 2000 Mr Modirzadeh requested a reconsideration of Comcare’s determination of his compensation claim.
43. Dr Faulkner examined Mr Modirzadeh on 30 May 2000 and 6 June 2000. On 13 June 2000 Dr Faulkner certified that Mr Modirzadeh was unfit for work from 1 June 2000 until 15 June 2000. On 20 June 2000 Dr Faulkner certified that Mr Modirzadeh was unfit for work from 16 June 2000 until 16 July 2000 (Exhibit A5). On 26 June 2000 Dr Faulkner reported (T19):
“Alex Modirzadeh first saw me on 18/5/00 with major depression (DSM-IV) with anxiety being a prominent symptom. The episode of depression appears to have been precipitated by abuse from his supervisor at work. He is now undergoing treatment for same and should be well enough to resume work in a couple of months.”
44. On 12 July 2000 Mr Modirzadeh agreed to discontinue proceedings in the Australian Industrial Relations Commission and accept a lump sum payment of $30,000 in settlement of all claims in relation to the termination of his employment by ACTEW (Exhibit A14).
45. In a reviewable decision dated 20 September 2000 Comcare stated (T32, folios 229-237):
“On the basis of the available medical evidence, I am not satisfied that the employee has suffered a “disease” within the meaning of the Act. Even if I could be so satisfied, I consider that the employee’s condition is excluded from the definition of “injury” contained in section 4 of the Act, because he has suffered that condition as a result of “reasonable disciplinary action”. In my view, the decision to deny liability for the employee’s “general anxiety state” was correct.
…
…Accordingly, I have decided to affirm the Determination dated 30 May 2000.”
46. Mr Modirzadeh attended Dr Yeung’s surgery between 3 August 2001 and 5 March 2002. On nine of those visits the clinical notes record him to be “Well”. On 7 February 2002 Dr Yeung recorded “I don’t think Alex [Modirzadeh] is depressed any more” and issued a repeat prescription of Cipramil (Exhibit A12).
47. On or about 27 September 2002 Mr Modirzadeh’s AMP income support payments ceased.
48. On 21 November 2002 Mr Modirzadeh was examined by Dr W. Knox, Consultant Psychiatrist, who reported that Mr Modirzadeh was suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Knox also reported (Exhibit A6 folio 1):
“Mr Modirzadeh’s condition had been moderately better prior to him being notified on 27 September 2002 that his income protection payments were to be ceased on account of him having, largely at his wife’s prompting, begun to explore other employment.”
49. On 3 December 2002 Dr A. Meyer, general practitioner, reported to AMP that Mr Modirzadeh “clearly suffers from a Major Depressive Illness with prominent anxiety features”, noting that Mr Modirzadeh’s condition “has deteriorated significantly” since consulting Dr Knox on 21 November 2002 (Exhibit A7).
50. On 17 December 2002 Dr Knox reported (Exhibit A8, p4):
“I judge Mr Modirzadeh has had chronic moderate severity Adjustment Disorder With Mixed Anxiety and Depressed Mood during the final months of his ACTEW employment and then through October 2002. His condition is much worse since the severance of his replacement payments with him having come to suffer from Major Depressive Disorder and Generalised Anxiety Disorder, in my view.”
51. On 19 February 2003 Dr Meyer reported that he had consulted Mr Modirzadeh on 36 occasions between 20 March 2002 and 19 February 2003 in relation to his “depressive illness” (Exhibit A1).
52. On 7 May 2003 Dr Saboisky, Consultant Psychiatrist, reported Mr Modirzadeh was suffering from “chronic adjustment disorder as a result of work places issues” and reported (Exhibit R1, 7 May 2003, p4):
“He highlights the refusal to accept a voluntary redundancy package as the start of his anxiety that management were attempting to get rid of him…
It is of course a question of interpretation as to whether work materially contributed to his problems or whether in fact the problem emerged from reasonable disciplinary action or a failure to achieve a benefit. It is certainly the case that he reacted very adversely to the potential loss of his employment. He had just built a house and had significant debts, had lost his property in Teheran, had a daughter in a private school and a son at university and a wife who was no longer working. The threat of losing his job appears to have been the primary trigger…
Formal inefficiency proceedings appear to have been reasonable action by management given his performance but, in retrospect, his problem may have been more appropriately seen as medical and appropriate remedies found.”
53. On 14 May 2003 a psychiatry registrar in training at the Tuggeranong Mental Health Team examined Mr Modirzadeh and reported that he was clinically depressed (Exhibit A9).
54. On 24 November 2003 Dr Saboisky identified specific “work related issues”, including “performance appraisals and criticism of his work” that “would have caused him distress and contribute to his condition” (Exhibit R1, 24 November 2003, pp2-3). Dr Saboisky records the following comments in reference to Mr Modirzadeh’s performance issues:
“While it is often difficult to separate workplace interpersonal distress and a depressive disorder I think the file could lead one to the view that in the final period that he was working, his performance was well below what it had previously been.
…
I believe a reasonable medical observer might have concluded that the reason he was incapable of performing even at an elementary level given his training was that he had the cognitive and organisational problems which are commonly associated with psychiatric disorders such as depression and anxiety.”
legal principles
55. Mr Modirzadeh’s application rises under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
56. Under the Act liability to pay compensation arises if an employee suffers an injury that results in death, incapacity for work or impairment (s.14). “Injury” is defined to include a disease suffered by an employee and a mental injury or the aggravation of a mental injury arising out of or in the course of the employee’s employment (s.4). Disease” is defined to include any ailment or aggravation of an ailment suffered by the employee that was contributed to in a material degree by the employee’s employment (s.4). “Ailment” is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
57. However, the s.4 definition of “injury” excludes:
“…any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
58. The meaning of the term “reasonable disciplinary action” was considered by Cooper J in Commission for the Safety, Rehabilitation and Compensation for Commonwealth Employees v Chenall (1992) 37 FCR 75 (see paragraphs 24 to 32). Essentially Cooper J concluded that “The only matters which fall to be determined under the definition are: (a) Was the action which resulted in the injury disciplinary action? If “yes”, was it reasonable?” With regard to the former question, Cooper J found that the following questions must be answered:
“1. What discipline or rules of conduct apply to an employee of
the Commonwealth?
2. In what circumstances can the Commonwealth as an employer
take action of a disciplinary nature to enforce the
discipline or rules of conduct against an employee?
3. What type of action may the Commonwealth take against an
employee if the circumstances giving occasion to the taking
of disciplinary action exist?”
The term “disciplinary action”, in the context of the definition of “injury”, is “reasonable action lawfully taken against an employee in the nature of or to promote discipline” and is not limited in its meaning to action involving a sanction or punishment (see Re Rizkallah and Australian Postal Corporation (1991) 14 AAR 348). The scope of the term “reasonable disciplinary action” has been previously considered by the Tribunal. In Re Wicks and Telstra Corporation [1997] AAT 12448 it was found that “it was necessary to balance the objective of the employer to maintain or promote discipline of employees and the rights of the employee”. In Re Inglis and Comcare (1997) 49 ALD 193 the Tribunal concluded that it “should include in its consideration the issue of ‘fairness’.” Relevant authorities were reviewed by the Tribunal in the case of Re Arthur and Comcare [2004] AATA 241.
59. If a disease is multifactorial, only employment related factors are relevant for compensation purposes under the Act. When considering whether an “injury” has occurred under the Act in the case of a multifactorial disease, it is necessary to ascertain whether the contributory and operative employment factors are within the exclusions to the definition. If all those factors are exclusionary the employee is not entitled to succeed. However, if any one of those factors is not exclusionary, and the definition of “injury” is satisfied, then the claim may succeed (see Comcare v Mooi (1996) 69 FCR 439 and Trewin v Comcare (1998) 84 FCR 171).
60. An employee is taken to have sustained an injury, being a disease or an aggravation of a disease, on the day medical treatment for that condition was first sought or the condition first resulted in incapacity for work or impairment of the employee, whichever occurred first (s.7(4)).
issues
61. It is not in dispute that Mr Modirzadeh was an employee within the terms of the Act in his employment by ACTEW.
62. The issues for determination by this Tribunal are concerned with the existence, or otherwise, of liability in Comcare to pay compensation pursuant to s.14 of the Act. The specific issues are:
(a)Did Mr Modirzadeh suffer from a disease that was materially contributed to by his employment by ACTEW or an injury that arose from or in the course of that employment?
(b)If so, was that disease or injury a result of reasonable disciplinary action taken against him by his employer or the result of his failure to obtain a promotion, transfer or benefit?
(c)If not, is Mr Modirzadeh entitled to the payment of compensation under the Act?
summary findings
63. Mr Modirzadeh was employed by ACTEW during all relevant periods to 30 May 2000 and was an employee under the Act during those periods.
64. Mr Modirzadeh suffered from a disease, being an ailment in the form of an Adjustment Disorder with mixed anxiety and depressed mood (“the Disorder”), for which he first sought treatment on 11 April 2000.
65. The Disorder was multifactorial. It was materially contributed to by certain factors in his employment and by personal factors that were not related to his employment by ACTEW.
66. To the extent that the Disorder was materially contributed to by Mr Modirzadeh’s employment by ACTEW, the disease was the result of reasonable disciplinary action and his failure to obtain a promotion, transfer or benefit in connection with his employment.
67. Mr Modirzadeh’s disease is excluded from the definition of “injury” at s.4 of the Act and is not compensable under the Act.
decision
68. The decision under review is affirmed.
reasons for the decision
69. In making this decision I have carefully considered all of the evidence, the credit of witnesses, the submissions made by the parties, the relevant caselaw and legislation.
ailment
70. I am satisfied, on the balance of probabilities, that on or about 11 April 2000 Mr Modirzadeh suffered from an ailment, being an Adjustment Disorder with mixed anxiety and depressed mood, which subsequently became chronic. In so finding I accept the diagnoses of Dr Saboisky and Dr Knox and note the contemporaneous diagnoses of Dr Yeung in April 2000 of “general anxiety state” and Dr Faulkner in June 2000 of “major depression (DSM-IV) with anxiety”.
disease
71. On the evidence before me I find that the Disorder is an ailment that was materially contributed to by Mr Modirzadeh’s employment, being a maladaptive reaction to specific work stresses within a short period that was manifest by symptoms that were outside the boundaries of normal mental functioning and behaviour (see Comcare v Mooi at paragraph 44).
72. The evidence is that Mr Modirzadeh first consulted Dr Yeung in relation to the Disorder and was incapacitated by it on 11 April 2000.
73. The test in relation to a disease that is to be applied under the Act requires a material contribution applying the civil standard of proof (see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at paragraphs 21 and 22):
“21. … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
22. The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
74. It is necessary, therefore, to determine whether any relevant employment factors did “in fact and in truth” contribute to his Adjustment Disorder. It was submitted for Mr Modirzadeh that 12 “events” materially contributed to the Disorder. I will deal briefly with each alleged “event”.
event one – the voluntary redundancy
75. I am satisfied that ACTEW’s offer of a voluntary redundancy to Mr Modirzadeh in or about August 1998 did not materially contribute to the Disorder in April 2000.
76. I accept that, in or about August 1998, an offer of voluntary redundancy was made to Mr Modirzadeh in the context of ACTEW restructuring, which he declined to accept. In his oral evidence Mr Modirzadeh was plainly of the opinion that the offer did not contribute to his illness. However, it was submitted on his behalf that the offer of voluntary redundancy created a perception in Mr Modirzadeh’s mind that his job was under threat and that perception materially contributed to the Disorder. There is some support for that submission in the evidence of Dr Saboisky and Dr Knox. I note however that both doctors’ assessments of his medical state in 1999 and 2000 were made on the basis of their clinical examinations of Mr Modirzadeh, as well as historical records, notes and documents and, significantly, the history as reported by Mr Modirzadeh. Elements of that history are in dispute.
77. I had the benefit of observing Mr Modirzadeh during the hearing and note that he had some difficulties accurately placing events in time and chronological order. This is not a criticism of Mr Modirzadeh. There are many relevant documents and events in issue, especially in the period from August 1998 to May 2000. Nonetheless, in the light of Mr Modirzadeh’s difficulties, caution must be exercised when considering his uncorroborated recollections in relation to the chronology of events in that period. Considering the nature of Mr Modirzadeh’s medical condition and the events that occurred in his workplace it is perhaps not surprising that in his evidence and in his mind he tended to conflate events that were in fact separated by time.
78. It follows that before accepting aspects of the reports by Dr Saboisky and Dr Knox that rely on the history given by Mr Modirzadeh, I consider it is necessary to carefully examine the evidence pertaining to events and Mr Modirzadeh’s state of mind in the period following the offer of voluntary redundancy made to him in August 1998 and prior to the onset of his Disorder on or about 11 April 2000.
79. Careful examination of the evidence reveals that following the offer of voluntary redundancy and at least until June 1999 the focus of Mr Modirzadeh’s attention and concern was to obtain a promotion or “broad banding” of his position.
80. I pause to note that I understand “broad banding” to mean the combination of two or more categories or levels of employment into one employment designation, whereby an employee may be required to exercise higher level responsibilities or functions and may obtain access to additional salary increments or other remunerative benefits. That being so, in my opinion “broad banding” may constitute a benefit under the Act (see Trewin v Comcare (above)).
81. Mr Modirzadeh’s “Exhibit-09” reveals that after declining the offer of voluntary redundancy he discussed his request for a promotion with the Human Resources Director, Mr Ruschena, and agreed upon a “personal performance planning and development (PPPD) in order to improve my skills for promotional purposes… The period of the review was from 21/1/99 to 12/5/99” (T13, folio 52). Subsequent correspondence between Mr Neal and Mr Modirzadeh on 24 June 1999 and 30 June 1999 relates to that review and Mr Modirzadeh’s claims in relation to promotion. His annotations to the minutes of a meeting on 25 June 1999 also reflect that interest.
82. Dr Saboisky gave evidence that “The threat of losing his job appears to have been the primary trigger”. I accept Dr Saboisky’s opinion in that regard but note that having declined the offer of voluntary redundancy Mr Modirzadeh was assigned duties that were appropriate to the level of his employment and his skills and experience. Those duties are set out in the performance plan to which I have referred. I accept the evidence that ACTEW’s offers of voluntary redundancy in or about August 1998 were, in fact, voluntary and there was no evident threat to Mr Modirzadeh’s employment at that time. The evidence is that ACTEW placed Mr Modirzadeh into suitable employment and made efforts to assist him to improve his skills and competitiveness in the workplace. The issue for Mr Modirzadeh at that time was one of promotion and improvement. I note that Mr Modirzadeh was engaged in academic studies that were supported by his employer in pursuance of his career objectives at that time and thereafter.
83. Mr Modirzadeh sought to rely on the case of Wiegand v Comcare (2002) FCA 1465. Von Doussa J said in Wiegand (supra) at paragraph 31:
“If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
Having carefully considered all of the evidence I am not satisfied on the balance of probabilities that the offer of voluntary redundancy in or about August 1998 created a perception in Mr Modirzadeh’s mind that materially contributed to the Disorder he subsequently suffered in April 2000. While I accept that his position was identified as excess in the ACTEW restructuring process and he was offered a voluntary redundancy, I do not accept that Mr Modirzadeh’s behaviour in the ensuing months prior to August 1999 was consistent with that of a man who perceived a threat of losing his job. The evidence points to behaviour that is consistent with a man, confident in his abilities, seeking promotion and advancement in his employment with the assistance and participation of his employer. I so find.
84. That being so, I am satisfied that the offer of voluntary redundancy did not materially contribute to the Disorder Mr Modirzadeh suffered in April 2000 and thereafter. I do not accept the proposition that the identification of Mr Modirzadeh’s position as excess and the subsequent offer of voluntary redundancy represented, in actuality or in Mr Modirzadeh’s mind at that time, a serious threat to his continuing employment by ACTEW. A distinction must be drawn between the intended abolishment of a position and the continuance of a person’s employment. While a nexus may arise between those two matters in accordance with lawful processes by which a person may be made redundant, not such nexus arose in Mr Modirzadeh’s case. A person may be assigned duties in one or more positions from time to time in employment without any threat to the continuance of their employment. That is what occurred in Mr Modirzadeh’s case. As will appear, the greater threat to his continuing employment arose after July 1999 in relation to his performance.
85. I note and accept, however, that Mr Modirzadeh subsequently developed a perception that he was being targeted, humiliated and discriminated against in the latter part of 1999, having failed to obtain a promotion in the period to July 1999 and, thereafter, being subjected to performance reviews which he found to be unsatisfactory.
event two – the june and july 1999 performance events
86. Mr Modirzadeh submitted that a memo from Mr Neal dated 24 June 1999, a meeting on 25 June 1999 with Mr Hill and Ms Hutchinson and a meeting on 7 July 1999 with Ms Bednarz materially contributed to his claimed ailment. This position finds some support in the evidence of Dr Saboisky. As will appear I am not persuaded by that evidence and do not accept or agree with this submission.
87. Mr Neal’s memo dated 24 June 1999 is in response to “recent discussions” with Mr Modirzadeh about the performance planning and development review, and his claims for promotion. In that memo Mr Neal stated:
“When we met earlier this week you showed me the work you have done to date on the System Development Methodology. You will recall that I expressed surprise that more had not been achieved given that you have been working on this for approximately 6 months. You were not able to give me an indication of how long you thought it would take to complete the task.
You also stated that you considered the real issue was that of your promotion…”
Mr Neal discussed the processes relating to the offer of voluntary redundancy and concluded with the general statement: “If no suitable position can be found for any particular officer, then that officer will declared redundant”. Mr Modirzadeh’s response to that memo cannot be ignored:
“[Promotion] is a long standing issue that I believe that have not been given any consideration as a high or even low priority matter. Lets be more realistic, you have put me on a variety of new and difficult tasks by changing my job from task to task in a short period of time, which needed especial expertise, they were complex, not marketable and due to the nature of them, I have easily been declared redundant. I was well capable for handling the duty of each task… I have been working more than six years in this organisation, I believe my work has not been appreciated so far, and most of the time I have been shown the exit door, or proposal for downgrading. I believe, I deserve this promotion…”
Plainly the focus of Mr Modirzadeh’s attention, his concern and his effort was in relation to obtaining a promotion, which he considered was his due. His concern was specific to “this promotion”, from which I infer that he is referring to an expectation he harboured throughout his participation in the aforementioned personal performance planning and development review. The force of Mr Modirzadeh’s concern was reflected in the notes of his meeting with Mr Hill and Ms Hutchinson on 25 June 1999 and his annotations to those notes on 30 June 1999.
88. I am satisfied that the object of Mr Modirzadeh’s concern at the end of June 1999 was the issue of his promotion. Plainly his efforts to obtain a promotion or broad banding of his position and any expectations he may have had in that regard, having participated in the personal performance planning and development review from January 1999, were frustrated and unsuccessful by the end of June 1999. I am not persuaded by submissions for Mr Modirzadeh that the focus of his concern at that time was the threat of losing his job.
89. The consequence of Mr Modirzadeh’s meetings at the end of June 1999 was that he was assigned duties on the NEM project under the supervision of Ms Bednarz. Minutes of a meeting between Mr Modirzadeh and Ms Bednarz set out the matters discussed and agreed on 7 July 1999. There is nothing in those minutes to indicate any threat to Mr Modirzadeh’s job or any concern in that regard on his part. Furthermore, there is nothing in the performance plan dated 13 August 1999 to indicate any threat to Mr Modirzadeh’s job or any concern in that regard on his part at that time working on the NEM project.
90. That being the case I am satisfied on the balance of probabilities as opposed to mere possibility that the “events” on 24, 25 and 30 June 1999 and 7 July 1999 did not materially contribute to the Disorder Mr Modirzadeh suffered in April 2000. However, if I am wrong in that regard and a material contribution to his disorder did accrue from these events, I would be compelled to conclude that that material contribution was as a result of Mr Modirzadeh’s failure to obtain a promotion or a benefit.
event three – 28 october 1999 event (shut up incident no 1)
91. The evidence clearly indicates that Mr Modirzadeh was told to “shut up and listen” by his then new supervisor, Mr Parker, on 28 October 1999. The incident arose in the context of a discussion between the two men at Mr Parker’s desk. The evidence is that Mr Modirzadeh was upset by communication difficulties with Mr Parker in relation to a meeting earlier that day.
92. In written submissions for Mr Modirzadeh it is alleged that he suffered an ailment on or about that day and that he “perceived that he was being targeted and victimised particularly given the Memo dated 24 June 1999 advising him that there were performance issues with his work and that his position may be made redundant”. I do not accept that submission.
93. Mr Modirzadeh’s oral evidence under oath was that the incident on 28 October 1999 caused him to experience stress for a short period but he accepted the apology he was given. He stated that this incident did not cause him to suffer illness as a result and “it was fine” thereafter. That evidence, which I accept, is corroborated by contemporaneous emails between Mr Modirzadeh and Mr Parker.
94. That being the case, I am satisfied that Mr Modirzadeh did not suffer an ailment on or about 28 October 1999 that was outside normal functioning or behaviour. I accept however that the incident and the events that led to it may have created a perception of humiliation or embarrassment in Mr Modirzadeh’s mind at that time. That perception may have combined with Mr Modirzadeh’s perception that he was being targeted. To that extent I accept that the events on 28 October 1999 may have materially contributed to the Disorder he subsequently suffered.
event four – the disciplinary process – formal process and preliminary process
95. In submissions for Mr Modirzadeh it is asserted that “the informal disciplinary and performance process in the twelve months leading up to the Applicant’s termination materially contributed to his ailment and therefore disease”. Specific reference is made in that submission to meetings in which Mr Modirzadeh was involved on 7 July 1999, 18 August 1999 and 14 September 1999, to a performance plan dated 13 August 1999, to a letter signed by Mr Ruschena dated 4 November 1999 and a purported performance plan referred to therein, to a performance assessment on 5 April 2000 and to a letter by Ms Hutchinson dated 19 April 2000.
96. I have already found that the 7 July meeting between Mr Modirzadeh and Ms Bednarz did not materially contribute to Mr Modizadeh’s Disorder. The question whether that meeting or any other of these listed events constitute reasonable disciplinary action under the Act will be dealt with in due course.
97. I accept, however, for reasons that will become clear, that events in the latter part of 1999 gave rise to a perception in Mr Modirzadeh’s mind that he was being targeted and marginalised. On 18 August 1999 Mr Modirzadeh and a union representation, Mr Hodgson, met with Mr Hill, Mr Ruschena and Ms Bednarz. Formal processes relating to Mr Modirzadeh’s performance were discussed. On 26 August 1999 it was apparent that he perceived difficulties in his relationship with his supervisor, Ms Bednarz (Exhibit R22). His work on the NEM project did not lead to promotion but to an unfavourable assessment of his performance (Exhibit R23), with which Mr Modirzadeh strongly disagreed (see T13 folios 54-55). On 14 September 1999 he and Mr Hodgson met with Mr Davies, Mr Hill and Ms Bednarz to discuss his performance and related disciplinary processes, as a result of which it appears Mr Modirzadeh was to be informed in writing of “the status of the disciplinary process, details of the next stage and its potential outcomes”.
98. A letter in those terms dated 4 November 1999 (Exhibit R29) is in evidence, but Mr Modirzadeh denies ever receiving it. Mr Parker gave oral evidence that he had seen a draft of the letter, but not on ACTEW letter head. In the circumstances I am not persuaded to accept Mr Modirzadeh’s denial of receipt on the basis that the performance plan referred to therein is not in evidence before me. There is an abundance of documentation in this case and the mere absence of that attachment is not sufficient to compel me to conclude that it was not, in fact, attached to the letter or was not given to Mr Modirzadeh. What is more compelling is Mr Modirzadeh’s participation in the performance review under Mr Parker’s supervision on 25 October 1999, having, in his own account, been forced to await Mr Parker’s return from leave before commencing those newly assigned duties.
99. It is probable that Mr Modirzadeh perceived that he was being targeted, marginalised and discriminated against and that he perceived a threat to his future job security in consequence of these disciplinary events. The medical evidence supports such a finding and the conclusion that that perception materially contributed to the Disorder he subsequently suffered. I so find.
100. Curiously, it is submitted on behalf of Mr Modirzadeh that he “was not aware that he was the subject of any performance review between about 4 November 1999 and until receipt of [Ms Hutchinson’s letter dated 19 April 2000]”. If indeed Mr Modirzadeh did not comprehend that he was under review during that period it is difficult to conclude that he continued to perceive that his job was under threat at that time. It also raises the question whether Mr Modirzadeh did in fact perceive that he was under review or that his job was under threat as a consequence of the events in August and September to which I have referred. However, I do not comprehend that the submission is directed to that conclusion, rather that it is intended to assert that disciplinary action did not commence until 19 April 2000. I will return to that matter below.
101. Nonetheless, I accept that there were no events of significance in Mr Modirzadeh’s employment during that period of five months from 4 November 1999 to the beginning of April 2000 that contributed in any measure to his previous stress or perceptions. That being the case, it would be reasonable to expect that the level of any stress or perception of marginalisation diminished during this period to relative calm and stability.
102. The material significance of events on and after 4 April 2000 is dealt with below.
event five – the failure on 28 may 2000 to allow the applicant an extension of time for his performance project
103. The basis of this submission is not clear. 28 May 2000 was a Sunday. There is no evidence Mr Modirzadeh sought an extension of his performance review on 28 May 2000. There is evidence to suggest that on 29 May 2000 Mr Modirzadeh intended “to argue the sick leave he took” (Exhibit A15).
104. With regard to Mr Modirzadeh’s sick leave during April and May 2000, the evidence is and I find that he was certified unfit for work on 11-13, 14, 17, 19, 20, 26-29 April 2000 and 2 and 26 May 2000. The evidence is that the review that Ms Hutchinson referred to in the letter dated 19 April 2000 was to take place “Over the next month”, that is until 19 May 2000. In Comcare’s submission the review was extended by two weeks in order to compensate for the time Mr Modirzadeh was absent on sick leave. That submission is consistent with the evidence. I accept it and so find.
105. Nonetheless, I accept that Mr Modirzadeh found the completion of the review stressful and suffered anxiety as a result. Clearly he disagreed with the deficiencies in his performance that were set out in Mr Parker’s review report dated 28 May 2000 (Exhibit A11) and with the remarks made by Mr Larsen in his email dated 26 May 2000 (Exhibit A16). I find that these matters materially contributed to his Disorder.
106. To the extent that Mr Modirzadeh’s submissions about this event concern the reasonableness, or otherwise, of the alleged failure to extend his final review period, I will address them below.
event six – becoming aware on 4 april 2000 that his performance review was in fact continuing and the 19 april 2000 written warning
107. The evidence is that on 4 April 2000 Mr Modirzadeh was informed of the outcome of the review by Mr Parker. Mr Modirzadeh was “accepted as having performed at an average level for a SITO C for the technical tasks involved in this review and the volume of work successfully done in the time given to complete the project”. He was also informed that a further period of review would follow. It is not surprising that Mr Modirzadeh expressed concern and amazement in his response to Mr Parker and strongly disputed the need for further review.
108. Plainly this development after a period of relative stability would have been stressful for Mr Modirzadeh. I so find. His stress was evident in the events that occurred on 10 April 2000, to which I will return below. I also accept that the letter by Ms Hutchinson dated 19 April 2000 in which Mr Modirzadeh was given a formal “final warning” pursuant to Clause 14 of the Agreement caused him to suffer stress and anxiety.
109. That being the case I am satisfied it was more probable than not that the events on 4, 5, 10 and 19 April 2000 materially contributed to Mr Modirzadeh’s Disorder.
event seven – 10 april 2000 (shut up incident no 2)
110. The evidence is that on 10 April 2000 Mr Parker told Mr Modirzadeh to “shut up and listen” in a raised voice during a telephone conversation which Mr Parker then terminated abruptly. The exchange occurred in the context of a conversation about Mr Modirzadeh’s performance review and the recommendation that a further review would follow.
111. The evidence is that Mr Modirzadeh had failed to follow a direction issued by Mr Parker that he should not communicate with a client. Mr Modirzadeh was argumentative in response to Mr Parker’s counselling on this subject.
112. I accept that Mr Modirzadeh found the exchange stressful and was embarrassed, humiliated and frustrated by Mr Parker’s behaviour in the role of supervisor. The evidence is that this event and the subsequent meeting between Mr Modirzadeh, Mr Parker and Mr Larsen caused Mr Modirzadeh to suffer symptoms of the Disorder and to consult his doctor the following day.
event eight – the failure to obtain a promotion
113. I have referred to Mr Modirzadeh’s failure, generally, to achieve a promotion or a benefit in preceding paragraphs. I accept that his failure in that regard may have contributed to a perception in his mind in the latter part of 1999 that he was being targeted and marginalised. To that extent it is more probable than not that his failure to obtain a promotion or a benefit materially contributed to his Disorder. I so find.
event nine – the termination on 30 may 2000
114. Plainly the termination of Mr Modirzadeh’s employment and the enforcement of his departure from ACTEW premises thereafter was the cause of significant stress and anxiety and materially contributed to his Disorder.
event ten – the amp insurance issue
115. The evidence is that Mr Modirzadeh’s Disorder improved with treatment prior to the termination of his income support payments by AMP in or about November 2002. The medical evidence indicates that that event was the cause of a deterioration in Mr Modirzadeh’s Disorder and his subsequent Major Depression. I accept that evidence and so find.
event eleven – the loss of the teheran property and event twelve – the applicant’s financial position
116. In the circumstances it is immaterial for present purposes whether or not the loss of Mr Modirzadeh’s property in Teheran made a material contribution to his Disorder.
117. The evidence is that Mr Modirzadeh had financial commitments in relation to his house, his car and his family. His financial capacity to service those commitments was dependent upon the income from his employment and subsequently upon the AMP income support payments and income earned by his spouse. The loss of his income and the loss of his property in Teheran diminished his financial capacity to a significant extent. Plainly those circumstances would be productive of stress and would in all likelihood have materially contributed to his Disorder, especially in the circumstances from 19 April 2000 where his future employment was clearly under threat.
118. Nonetheless, that finding does not displace the material contribution to his Disorder by factors in his employment and does not extinguish Mr Modirzadeh’s entitlement under the Act. Mr Modirzadeh suffered from a disease under the Act. It is necessary, therefore, to determine whether that disease is within the terms of “injury” as defined.
injury
119. In order to determine whether Mr Modirzadeh’s disease is within the terms of “injury” as defined, it is necessary to consider whether the exclusionary aspects of that definition apply in this case.
120. For ease, it is convenient to summarise the foregoing to clearly identify the employment related factors that materially contributed to Mr Modirzadeh’s disease. They are:
(a)The perception in Mr Modirzadeh’s mind that he was being targeted and marginalised in the latter part of 1999 having failed to obtain a promotion or broad banding of his position.
(b)The meetings and related review processes and documents on or about 18 August 1999, 26 August 1999, 14 September 1999, 25 October 1999, 4 November 1999, 4 April 2000, 5 April 2000, 10 April 2000, 19 April 2000, 30 May 2000.
(c)The perception in Mr Modirzadeh’s mind that he was humiliated and discriminated against during these processes and specifically as a result of his communication difficulties with Mr Parker on 28 October 1999 and 10 April 2000.
(d)The termination of his employment on 30 May 2000.
failure to obtain a promotion, transfer or benefit
121. I have found that Mr Modirzadeh’s failure to obtain a promotion or broad banding of his position contributed to the development of a perception in his mind in the latter part of 1999 that he was being targeted and marginalised, which materially contributed to his disease. However, a disease that is a result of the failure of an employee to obtain a promotion, transfer or benefit in connection with his or her employment is excluded from the definition of “injury” at s.4 of the Act.
122. It follows that Mr Modirzadeh’s disease is excluded from that definition to the extent that it resulted from stress relating to his failure to obtain a promotion, transfer or benefit.
123. The promotion that Mr Modirzadeh failed to obtain was not in relation to a specific position for which he had applied but was related, generally, to his failure to obtain a promotion to any position at a higher level in the ACTEW restructure than his SITO C position. The evidence is that he firmly believed he was entitled to such a promotion on the basis of his skills, experience and length of service and agitated to achieve that outcome. The evidence is that Mr Modirzadeh participated in a personal performance planning and development process in the period from January to June 1999 and but was assigned duties at his level and did not obtain a promotion as a result. Nor did he obtain a benefit in the form of having his SITO C position broad banded and was, therefore, precluded from access to an increase in remuneration that would have flowed from that occurrence.
124. These occurrences were in the period following the offer of voluntary redundancy until July 1999. I am satisfied that Mr Modirzadeh was disappointed in his career with ACTEW. His disappointment reflects his failure to achieve a promotion or a benefit in his employment. To the extent that those occurrences or the disappointment Mr Modirzadeh experienced materially contributed to his disease, then that contribution is within the exclusionary terms of the definition of injury at s.4 of the Act.
reasonable disciplinary action
125. Considering the questions posed by Cooper J in Chenhall (supra), I find that the discipline or code of behaviour that applied to Mr Modirzadeh in his employment by ACTEW was set out in the 1998-2002 ACTEW Enterprise Agreement (“the Agreement”). The circumstances in which disciplinary action could be taken under the Agreement are “in the event of the employee’s unacceptable work performance and behaviour” in accordance with subclause 14.1.6. The disciplinary action that could be taken in those circumstances is set out in subclauses 14.1.1 to 14.1.5. A three stage procedure is provided for: Stage 1 being counselling by the employee’s supervisor to ascertain the reasons for the inappropriate behaviour and any assistance that may be provided; Stage 2 being a formal written warning that remains active for six months; Stage 3 being a final written warning that repetition of the inappropriate behaviour will lead to disciplinary action that is limited to suspension, demotion, transfer or dismissal.
126. Counselling in circumstances where unacceptable performance and behaviour has been found, being Stage 1 of the disciplinary procedure pursuant to subclause 14.1.2 of the Agreement, is disciplinary action under the Act. Such disciplinary counselling is to be distinguished from other non-disciplinary forms of counselling (see Re Bennett and Comcare (1992) 17 AAR 18) and any anterior steps to the decision to take disciplinary action (see Chenhall (supra) at FCR 84).
127. The evidence reveals that Mr Modirzadeh’s performance was reviewed under a personal performance planning and development process from January to June 1999 (Exhibit R15 and T13 folio 52). The review related to Mr Modirzadeh’s career aspirations and claims for promotion. Mr Neal’s memo dated 24 June 1999 (Exhibit R16) related to that review. The review was terminated in the meeting on 25 June 1999 and Mr Modirzadeh was assigned duties on the NEM project. He subsequently met with Ms Bednarz on 7 July 1999 to discuss those duties (Exhibit R19). None of these events are within the terms of the disciplinary process set out under the Agreement and are not disciplinary action under the Act. They are more consistent with preliminary performance development or efficiency assessments and related informal counselling, anterior to the taking of disciplinary action (see Re Bennett (above)).
128. On 13 August 1999 a performance plan was agreed (Exhibit R21) and performance deficiencies were discussed in a subsequent meeting on 18 August 1999. The performance plan was subsequently discussed and amended on or about 26 August 1999 (Exhibit R22) and performance deficiencies were discussed formally on 14 September 1999 (Exhibit R23). On 18 August 1999 and 14 September 1999 Mr Modirzadeh was accompanied by a union representative, Mr Hodgson. I am satisfied that those meetings and related documents and processes were formal counselling pursuant to Clause 14 of the Agreement and were consistent with Stage 1 of the disciplinary process provided therein. It follows that those meetings and related processes from 13 August 1999 are disciplinary action under the Act.
129. The 14 September 1999 meeting notes refer to a letter setting out the status of the disciplinary process, details of the next stage and its potential outcomes. That letter is in evidence and is dated 4 November 1999 (Exhibit R29). It constitutes Stage 2 of the disciplinary process under the Agreement and I so find.
130. I accept that Mr Modirzadeh was assigned duties on or about 25 October 1999 under the supervision of Mr Parker for the purpose of further review and counselling pursuant to Stage 2 of the disciplinary process under the Agreement. Despite the initial communication difficulties between Mr Parker and Mr Modirzadeh, that process was productive of a satisfactory result, albeit an incomplete result from Mr Modirzadeh’s perspective. I am satisfied that Mr Modirzadeh was fully aware that his assignment of duties under Mr Parker’s supervision was for the purpose of review within the disciplinary framework provided under the Agreement. Mr Ruschena’s letter dated 4 November 1999 constitues a Stage 2 disciplinary action under the Agreement, substantially complying with all the requirements set out at Cl. 14.1.3. I am satisfied, considering all of the evidence and on the balance of probabilities, that the meeting with Mr Modirzadeh to which Mr Ruschena referred in that letter took place and that Mr Modirzadeh was informed of the contents of the letter and the review that Mr Parker was to supervise. Mr Hodgson gave oral evidence that he was not involved in any formal meetings concerning Mr Modirzadeh’s case after September 1999. I note in passing that the letter dated 4 November 1999 was issued pursuant to the meeting on 14 September 1999 at which Mr Hodgson was present.
131. The formal status of the November 1999 to April 2000 review is confirmed in a review report by Mr Parker on or about 5 April 2000 (Exhibit R30). Cl. 14.1.3 provides for a review period of up to six months. The telephone conversation between Mr Modirzadeh and Mr Parker and the subsequent meeting between Mr Modirzadeh, Mr Parker and Mr Larsen on 10 April 2000 were in relation to the preceding review. Each of those events from 25 October 1999 to 10 April 2000 is within Stage 2 of the disciplinary process set out in the Agreement.
132. It is conceded by Mr Modirzadeh that Ms Hutchinson’s letter dated 19 April 2000, the subsequent review and the termination of Mr Modirzadeh’s employment were disciplinary actions. I agree and find that they constituted disciplinary actions pursuant to Stage 3 of the disciplinary process set out at Cl. 14.1.4 of the Agreement.
133. That being the case, I am compelled to find that the employment related factors set out at subparagraphs 117 (b), (c) and (d) (above) are within the meaning of disciplinary action under the Act.
134. Were those disciplinary actions reasonable? After carefully considering all of the evidence and the circumstances in context, I am satisfied on the balance of probabilities that they were, and I so find.
135. The Agreement provides for and envisages disciplinary processes of up to 12 months duration or longer. The duration of the three stage disciplinary process in the period from 18 August 1999 to 30 May 2000 provided Mr Modirzadeh with ample opportunity to address the performance deficiencies that were identified to him. I accept that they caused Mr Modirzadeh to experience stress and anxiety. However, it is clear that Mr Modirzadeh was not so stressed by the Stage 1 disciplinary processes prior to 4 November 1999 that he was unable to perform satisfactorily at the SITO C level in the Stage 2 disciplinary process thereafter that concluded on or about 5 April 2000.
136. I accept that it was unfortunate for Mr Modirzadeh, but not unreasonable in the circumstances, that he was subjected to further review on 19 April 2000, addressing specific functional requirements concerning his ability to communicate with customers. That final review constituted a Stage 3 disciplinary process pursuant to Cl. 14.1.4 and the fact that it was interrupted by the onset of Mr Modirzadeh’s Disorder does not render it unreasonable. At that time, Mr Modirzadeh was certified unfit for work on specific days as a result of a condition that was described to be “anxiety stress state (abused by supervisor)”. The alleged abuse was the subject of a grievance complaint by Mr Modirzadeh. It would be reasonable to expect that a disciplinary review would be extended for a period on the basis of the employee’s absence on sick leave and, at least, until completion of the review of Mr Modirzadeh’s grievance complaint. That is what occurred in Mr Modirzadeh’s case. The fact is, between 19 April and 30 May 2000 Mr Modirzadeh was absent for seven days on sick leave. The review commenced on 19 April 2000 and was due to be completed on or about 19 May 2000, but was effectively extended to 29 May 2000. The review of Mr Modirzadeh’s grievance complaint was completed on 18 May 2000. I am satisfied that the extension of Mr Modirzadeh’s review was fair in the circumstances and find that that disciplinary action was within the scope of the Agreement and was reasonable.
137. In Mr Modirzadeh’s submission, Mr Parker’s use of “shut up” language on 28 October 1999 and on 10 April 2000 was abusive and inconsistent with reasonable disciplinary action. Plainly, the use of such language in a raised voice by a supervisor when counselling an employee is, at the minimum, undesirable and inappropriate. In their report concerning Mr Modirzadeh’s grievance claim, Ms Cullen and Mr Price concluded that such language was “not appropriate, and could be viewed as a breach of the Code of Conduct guidelines” (T12). I accept that conclusion.
138. However, I am not persuaded to conclude that Mr Parker’s inappropriate language renders the disciplinary counselling in which he was engaged at that time unreasonable. His use of inappropriate language must be viewed in the context in which it occurred. His evidence, which I accept, was that Mr Modirzadeh was argumentative and defensive and unwilling to listen to the counselling that Mr Parker was attempting to provide, for Mr Modirzadeh’s benefit, in the context of the disciplinary review process. In that context it is perhaps understandable that frustrations could arise on both sides. I accept Mr Parker’s evidence that he did not intend to attack or humiliate Mr Modirzadeh, and that he did not make the remark aggressively or in anger. I accept his evidence that he made the remark because it was in Mr Modirzadeh’s interests to listen to and understand the counselling that he was being provided, but Mr Modirzadeh was not listening and was, instead, dominating the conversation inappropriately. I note there is evidence pointing to Mr Modirzadeh’s difficulty listening to or accepting counselling from his supervisors over time.
139. Having carefully considered all of the evidence I am persuaded to conclude that the proximate cause of Mr Modirzadeh’s Disorder was the stress he experienced as a result of his conversation with Mr Parker and his subsequent meeting with Mr Parker and Mr Larsen concerning the continuance of disciplinary review processes. Plainly Mr Modirzadeh’s telephone conversation with Mr Parker added its measure to the level of his stress. However, I am satisfied that the counselling provided by Mr Parker in that conversation, albeit using inappropriate language in one instance, was reasonable in the circumstances. I am persuaded to a similar conclusion in relation to the conversation between Mr Modirzadeh and Mr Parker on 28 October 1999.
140. There is no requirement at Stage 1 of the disciplinary process for the employee to be accompanied or represented, although it was Ms Hutchinson’s evidence that it would be desirable. Provision is made in Stages 2 and 3 for a delegate or representative to be present “if requested”. In this case Mr Modirzadeh was accompanied by a union representative at the Stage 2 meeting, but not at the issuing of the Stage 2 letter and not at the Stage 3 issuing of a final warning on 19 April 2000 (Exhibit R40). In my opinion those failings do not negative the disciplinary process nor do they render it unreasonable. The provision concerning accompaniment is optional and not mandatory, even though it is clearly desirable. Plainly, it is the responsibility of the employer to accord natural justice and procedural fairness to an employee undergoing disciplinary actions. It was open for Mr Modirzadeh to request a representative or delegate to be present at these events or during subsequent related meetings. There is no evidence to indicate that he did so.
141. The termination of Mr Modirzadeh’s employment on 30 May 2000 was within the scope of the disciplinary action set out in the Agreement pursuant to Cl. 14.1.4. I find that disciplinary action was in compliance with the Stage 3 actions provided under the Agreement and was reasonable in the circumstances. I note that no issue was made before me of any matters concerning s.170CM of the Workplace Relations Act 1996 or the reasonableness of the termination of Mr Modirzadeh’s employment by ACTEW in that regard. The evidence is that he did seek to pursue an action in relation to the termination of his employment before the Industrial Relations Commission, but discontinued that action and accepted a financial settlement.
conclusion
142. Having carefully considered all of the evidence, the submission of the parties, the relevant caselaw and legislation, I am compelled to conclude that the employment related factors and actions that materially contributed to Mr Modirzadeh’s disease are within the terms of exclusion from the definition of injury at s.4 of the Act. That being so, Mr Modirzadeh’s disease is not compensable under the Act and he is not entitled to payment of compensation in relation to that disease. For these reasons the decision under review is affirmed and it is not appropriate to make any orders in relation to costs pursuant to s.67 of the Act.
I certify that the 142 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 19-21 April and 23-24 June 2004
Date of Decision 27 August 2004
Counsel for the Applicant Mr David Richards
Solicitor for the Applicant Ms Vicki Dean
Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Mr Tony Reilly
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