O'Brien and Australian Offshore Solutions Pty Ltd (Compensation)
[2017] AATA 812
•6 June 2017
O'Brien and Australian Offshore Solutions Pty Ltd (Compensation) [2017] AATA 812 (6 June 2017)
Division:GENERAL DIVISION
File Number: 2016/2749
Re:Michael O'Brien
APPLICANT
Australian Offshore Solutions Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Senior Member CR Walsh
Date:6 June 2017
Place:Perth
The Tribunal sets aside the decision under review and in substitution therefor decides that the Respondent is liable to pay the Applicant compensation under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 (SRCA) for a psychological injury (Bipolar Affective Disorder) sustained by the Applicant during his third swing of employment with the Respondent as an Integrated Rating on board the vessel Sea Surfer in the period 15 February 2015 to 15 March 2015.
Pursuant to s 92(2) of the SRCA, the Tribunal orders that the costs of these proceedings incurred by the Applicant be paid by the Respondent in accordance with section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (July 2015).
........................................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – seafarers rehabilitation and compensation – whether applicant’s ailment or aggravation of that ailment (being a Bipolar Affective Disorder) was “contributed to in a material degree” by his employment with the respondent as an Integrated Rating on the vessel, “Sea Surfer” – meaning of “ailment” considered – meaning of “aggravation” considered - meaning of “contributed to” considered – meaning of “in a material degree” considered – whether the applicant was “bullied” by the Captain of the vessel - decision under review set aside and substituted
LEGISLATION
Compensation (Commonwealth Government Employees) act 1971
Safety, Rehabilitation and Compensation Act 1988 – (former) s 4(1) – s 5B
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Seafarers Rehabilitation and Compensation Act 1992 – s 3 – s 8 - 10(7) - s 26
CASES
Comcare v Canute [2005] FCAFC 262; 148 FCR 232; 89 ALD 258; 41 AAR 539
Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523
Casarotto v Australian Postal Commission (1989) 86 ALR 399; 17 ALD 321; 10 AAR 191
Dunstan v Comcare [2006] FCA 1655; 93 ALD 390; 44 AAR 359
Dunstan v Comcare [2011] FCAFC 108; 125 ALD 362
Favelle Mort Ltd v Murray (1976) 133 CLR 580; 50 ALJR 509; 8 ALR 649
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; 38 ALJR 64
Kennedy v Comcare [2015] AATA 334
Mellor v Australian Postal Corporation [2009] FCA 504; 108 ALD 159
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Wiegand v Comcare [2002] FCA 1464; 72 ALD 795
REASONS FOR DECISION
Senior Member CR Walsh
6 June 2017
INTRODUCTION
Mr O’Brien seeks review of a decision of Australian Offshore Solutions Pty Ltd (AOS), dated 20 May 2016, to disallow Mr O’Brien’s claim for workers’ compensation, under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 (SRCA), for a psychological injury (Bipolar Affective Disorder) sustained by him during his third swing of employment with AOS as an Integrated Rating on board the vessel Sea Surfer in the period 15 February 2015 to 15 March 2015, due to bullying by the Captain of the vessel, Captain Willett.
Central to the determination of this application is whether Mr O’Brien’s Bipolar Affective Disorder was “contributed to in a material degree” by his employment with AOS.
FACTUAL & PROCEDURAL BACKGROUND
Mr O’Brien was born in Ireland in 1959 and is currently 58 years of age.
Mr O’Brien was raised by a single mother until the age of six, when his mother died. He never met his biological father. From the age of 6, until he was 16, Mr O’Brien was raised in Catholic institutions, where he claims to have been mistreated.
In April 1975, upon turning 16, Mr O’Brien enlisted in the British Army. In summary, Mr O’Brien’s military service comprises the following Tours of Duty:
2.1987 to the Falkland Islands, his role being Forward Reconnaissance Units confronting many explosions and that he killed Argentineans and –
3.Four Tours of Northern Island and was involved in many riots at the age of 18 and the bomb disposal man was killed in his arms and his legs were destroyed and he described that -“You were petrol bombed on a daily basis” And –
4. A Peace Keeping Mission for 6 months and –
5.In Rhodesia before it became Zimbabwe in 1979 to 1980 during the transition and –
6.Cyprus for the United Nations in 1976 to 1977, his role as a Young Paratrooper but did not sustain any trauma there, but described much in Rhodesia due to the land mines stating – “I’ve seen a lot of people blown up” – And –
7.In 1983 to 1987 he participated in the 44th Parachute Brigade iu (sic) South Africa and fought on many border patrols confronting many atrocities, witnessing – “Lots of things” – And –
9. In about 1989 on P&O he was – “The tanker man”
- engaged with a civilian in the Engine Room when a man hung himself in the Engine Room and he was advised by the Captain that he was sick and contagious and not to enter the Engine Room.
...
11.In 1998 to 1989 he spent 3 months on a ship confronting Iranian gun boats but claimed to be okay.[1]
[1] Exhibit 7.
Mr O’Brien subsequently immigrated to Australia.
After immigrating to Australia, Mr O’Brien was employed in the following roles:
·2002 to 2005 - self-employed as an Owner/Trainer/Assessor with Maritime Offshore Training Assessment Service (MOTAS), Swan Maritime Institute Henderson, Western Australia;
·2005 to 2008 – employed as a Technician/Inspector with Sparrows Offshore, Kewdale, Western Australia;
·2008 to 2010 – employed as a Project Technician General Service Operator with PTTEP, Montara, Singapore;
·September 2011 to January 2012 – employed as a Heavy Lift Supervisor with Boskalis Gorgon Project, Barrow Island LNG Plant;
·October 2012 to May 2014 – employed as a EPCM Heavy Lift Superintendent with KJV Chevron Gorgon Project, Henderson, Western Australia; and
·September 2014 to May 2015 – employed as an Integrated Rating with AOS on the Gorgon Project, Barrow Island LNG Plant.[2]
[2] Exhibit 2 at MO12.
Mr O’Brien holds a number of seafarer industry related qualifications, licences and tickets, including, for example, an Advanced Diploma Occupational Health & Safety (Q14) and a Licence to perform High Risk Work Registered Assessor WA Government (1085).[3]
[3] Exhibit 2 at MO12.
Mr O’Brien has a long standing history of psychiatric complaints, dating back to childhood. He had very severe depression in 2004, 2006 and 2007 resulting in hospital admission, treatment by a psychiatrist, Dr Combrinck, and Electroconvulsive therapy (ECT) treatment in 2007. He reported further episodes of depression in 2012, 2013 and 2014, with suicidal thoughts.
Mr O’Brien has been prescribed the following medication for his pre-existing psychological condition:
· Diazepam - (used to treat anxiety and other disorders) since at least May 2014 (prior to commencing employment with AOS); and
· Veniafaxine/Effexor – (an antidepressant used to treat major depressive disorders, general anxiety disorders, panic attacks and social phobia) since at least November 2014 (prior to the alleged “injury”).
On 10 September 2014, Mr O’Brien completed a Sonic Health Plus “Pre-Employment Health Assessment Questionnaire” in relation to employment by AOS on the Gorgon Project Barrow Island LNG Plant (Pre-Employment Questionnaire).[4] Question 4 of the Pre-Employment Questionnaire is titled “Mental Health”. In Question 4, Mr O’Brien answered “No” in response to the following questions:
· Have you ever had any mental health issue requiring medication (antidepressants, sedatives or sleeping tablets) or counselling?;
· Have you ever been referred to a psychologist or psychiatrist?;
· Have you ever had any problems with drugs or alcohol?;
· Have you ever had depression?;
· Have you ever had anxiety?;
· Have you ever had panic attacks?;
· Have you ever had insomnia; and
· Have you ever had any other nervous problem?
[4] Exhibit 1 at T5 p 30.
On 16 September 2014, Mr O’Brien entered into “Seafarer Work Agreement – Casual” with AOS, as an “Integrated Rating”, on board the platform supply vessel, Sea Surfer.
Mr O’Brien completed his first swing of employment with AOS on board the vessel, Sea Surfer, between 30 September 2014 and 2 November 2014.
In October 2014, the vessel Sea Surfer had been detained by the Australian Maritime Safety Authority (AMSA) for non-conformance issues, including hours of work and rest.
On 28 October 2014, AMSA issued a “Report of Inspection in Accordance with IMO and ILO Port State Control Procedures” in relation to the vessel, Sea Surfer, which reported, inter alia, that work hours were in excess of requirement under STCW during the month of October 2014 (not meeting minimum rest requirement).
On 30 October 2014, a “Non-Conformance Note” was issued to the vessel, Sea Surfer, due to:
· reported deficiencies on hours of rest not meeting the minimum rest requirement; and
· reported deficiencies on operational/maintenance effectiveness.
Mr O’Brien completed his second swing of employment with AOS on board the vessel, Sea Surfer, between 8 December 2014 and 15 January 2015.
On 27 January 2015, Mr O’Brien ceased the antidepressant Effexor (which had been prescribed to him by his general practitioner, Dr Paul Babich) without medical consultation, shortly before commencing his third swing of employment on the vessel, Sea Surfer, under Captain Willett.
On 30 January 2015, Mr O’Brien was issued an AMSA “Certificate of Medical Fitness” declaring him “Fit” to serve at sea as an Integrated Rating.
On 15 February 2015, Mr O’Brien commenced his third swing of employment with AOS on the vessel, Sea Surfer, under Captain Willett.
On 1 March 2015, Captain Willett emailed Mr Sweetman regarding the issues he was facing as Captain onboard the Sea Surfer, as follows:
Hi Dan,
Sorry to bother your long weekend but there are some issued (sic.) festering on here I believe will not be resolved internally.
I wanted to speak to you about transferring to the Swan. If Mark Bliss is coming off on the 6th I was hoping to be his replacement. I know the systems and crew on the Swan and felt very happy doing my job on there. I also felt I had a good relationship with both crews on the Swan.
The Surfer is another story. I feel an unwelcome outsider here coming to make change that is not wanted by the crew but that is needed by the project. I know being captain is not about having friends but the culture on here is terrible. I find the crew to be the laziest, least project and safety aware and most resistant to change of the three crews I have sailed with on this project. They have little to no awareness of project quarantine and safety requirements. I have had to implement pre start meetings and weekly quarantine toolbox talks per project requirements. They were not happening on this swing previously. I also conduct weekly walk arounds for the log book and quarantine requirements as well as daily checks of the deck for my knowledge.
The crew are very unhappy with me doing this…
…
I feel uncomfortable talking to the crew now as every day is a potential harassment case… I believe this vessel requires a stronger master with more experience than myself to get them into shape. It would be my stronger choice that some of these IR’s are moved on. I understand that probably will not happen so ask you give the strongest possible consideration to me replacing Mark Bliss as Master on The Sea Swan on 6th March… I do feel very concerned sailing with the crew on here any longer.
…
Dave Willett
MASTER
PSV Sea Surfer
On 4 March 2015, Mr O’Brien emailed Mr Daniel Sweetman, HR/IR Manager at AOS, notifying of his resignation from his employment with AOS.[5] That email states:
Hi Daniel
Please accept my letter of resignation, unfortunately I find it untenable to continue working under
The supervision of Capt David Willetts.
I consider his work ethics as a manger to be unreasonable.
Thank you for your past employment.
Kindest regards
Mick O’Brien
(emphasis added)
[5] Exhibit 2 at MO10.
On 15 March 2015, Mr O’Brien emailed Second Officer, Mr Pieter Gorter, stating the following:
Subject: Ref Safety meeting. Sea Surfer
My roll on board the Sea Surfer is Integrated/Rating Crane/operator
Crew Hse Rep.
Whilst at the meeting I was stood over talked down too (sic.), and belittled by Capt David Willett.
The topics I addressed where (sic.) misconstrued and put in the safety minutes in a different context.
Capt Frank Piano had been villidafied and been character assinated (sic.) as had the other crew members have been, by Capt David Willett this was brought up by me at the meeting.
My concerns had been addressed by me to Glen Frewin in the mess room Sea Surfer, concerning Capt David Willett behaviour and attitude, whilst in Qube Fremantle port.
On 15 March 2015, Mr O’Brien ended his third swing of employment with AOS on the vessel, Sea Surfer, early due to a gum infection and left the ship at Barrow Island.
A letter from Delta Rockingham Dental, dated 16 March 2015, states:
..
This is to certify that Michael [Mr O’Brien] attended our clinic for treatment today and he has an infected implant abutment. We have placed him on a course of antibiotics. He will be unfit for work for the next two weeks.
In a “WorkCover WA – FIRST certificate of capacity” form, dated 17 March 2015, treating General Practitioner, Dr Paul Babich, made a clinical finding that Mr O’Brien had:
… depressed mood, withdrawal and anxiety with suicidal ideation. Unable to think clearly.
(First Certificate of Capacity).
In the First Certificate of Capacity, dated 17 March 2015, Dr Babich diagnosed Mr O’Brien with “Depression” and, in response to the question “What happened?”, the First Certificate of Capacity states:
Captain David Willett of the Seasurfer (sic.) put work hours up and said non compliant would not be back on the boat. Bullied and harassed as the elected crew Health and Safety Representative.[6]
[6] Exhibit 1 at T16 at pp 117-118.
In the First Certificate of Capacity, Dr Babich stated that Mr O’Brien had “no capacity to work” from 17 March 2015 to 31 March 2015.
On 17 March 2015, Dr Babich prescribed Mr O’Brien with the medication Effexor (which is used to treat major depressive disorder).
In March 2015, Mr Pieter Gorter, Second Officer on-board the Sea Surfer, wrote to Mr Sweetman stating the following:
…
After the end of the first week it was apparent that Capt. Willett was placing unreasonable demands on people when it came to work hours and he was happy to continually push people to do jobs faster and faster without any regard for their safety.
…
Around halfway point in the swing, Michael O’Brien had sent in his resignation to the company. A reason being the Captain had persecuted Michael about a safety issue he had raised to do with the cranes onboard. He also wanted to know if we required training for the cranes and the captain immediately remarked “So what’s this about, do you want construction PAB?” After hearing this, I personally didn’t feel like I could speak openly as the Captain would instantly use a dismissive tone.
…
…The Captain’s attitude and demeanour made him absolutely horrible to be within the same room as him…
…
In my career to date, I have not sailed with another Captain who has created such a negative working environment on board a vessel. The entire deck department is a shadow of itself compared to the two previous swings we completed. I am of the opinion that the Captain concentrated on attacking the deck department which was his way of taking any attention off himself, as quite frankly I have never sailed with a Captain with such poor leadership skills as he. It was the leadership of Chief Officer Luke Hosking and his outstanding knowledge of onboard operations that enabled the ship to run so seamlessly this swing. However, it came at the cost of Luke having to work up 10 17 hour days whilst at Barrow Island…[7]
(emphasis added)
[7] Exhibit 1 at pp 316-317.
Around the same time, the MUA representative, onboard the Sea Surfer, wrote to Captain Willett and AOS management complaining of the following:
Since the arrival of Capt. David Willett we have received:
·An increased demand in work hours- The watch keepers now operate on a 10 hour minimum watch cycle. The master has enforced the extra 2 hours to accommodate small maintenance jobs. These jobs are easily achievable in the normal “4 on 8 off” roster, which we adhered to in the previous swings with no difficulty. This new schedule has had an adverse effect on the crew as we have pushed hard for an extra I.R with the original workload we were given. Once again due to the unpredictable gorgon schedule we have had our crew go over this 10-hour cycle regularly. This shows how valuable our rest periods are and as such justifies the need for a normal “4 on 8 off” roster.
·Intimidation- The master stated that he could push us to do up to 14 hours work a day if he wanted. This form of intimidation is unnecessary and also goes against our EBA, which states that we cannot go over 12 hours unless it is an emergency or major machinery breakdown.
·Job threats- When the master's new schedule was first being implemented he stated that if we had a problem with the way he ran the ship, his trump card would be to ring the office and tell them not to bring us back next swing. He also stated that he is prepared to go to a showdown with the MUA crew over the issue. These statements are considered as threats and although the master may think this provides us with motivation to carry out the job, it actually has a compounding negative effect that has created tension among the departments onboard. This "my way or the highway” attitude shows nothing but a lack of management and concern towards the crew.
·Lack of duty of care- To give a further example of the master's attitude towards duty of care, he once ordered the watch keepers to rust rinse the accommodation in 30 knot winds. This is a highly acidic chemical that when used in such conditions would cause harmful exposure to the crewmembers involved. Thankfully the crew used their stop work authority (to the master's dissatisfaction) to explain the hazards, which in such conditions could not permit the job to be completed safely. Even though the crewmembers were able to assess the job and deem it not safe, the master should not have even considered this as a job with the risks involved. This just shows his lack of concern for the crew's health.
·A decrease in crew morale- As a result of these outstanding issues, the crew's enthusiasm and general morale has reached an all time low. This doesn't seem to register with the master as any mention of a crewmember's wellbeing is met with a lack of sympathy and instead, diverted into a conversation concerning the amount of work that's needed to be done. We have reason to believe that this attitude is not focused primarily on the MUA crew but extends to any crewmember that raises similar issues.
·A crewmember resignation- Due to the issues noted above, one of our crewmembers decided last time we were in Fremantle port to hand his resignation in to AOS. Michael O'Brien has had over 35 years experience in this industry. This wealth of knowledge and experience has played an important role in maintaining the safe and efficient operation of the vessel up until now. Michael's seamanship, crane and rigging knowledge have been invaluable and have proved to be a great asset to the ship's crew and company. His decision to leave shows how one can be profoundly affected after working under the conditions of our current master. We hope Michael's decision may be reversed as it was made under duress. The MUA crew supports him and as such, we hope that if circumstances change, he would return next swing.
We acknowledge that AOS has certain requirements it must meet in regards to the project but this does not justify threats to our job, intimidation, no duty of care and unnecessary work related pressures that have been inflicted upon the MUA crew by the current master. We find these issues to be unacceptable and counter-productive. As such we are compelled to urge AOS to reconsider the position of David Willett as master onboard the Sea Surfer.
Several emails from the MUA organiser, Mr George Gakis, to Mr Sweetman followed. In these emails Mr Gakis described Captain Willett as a “one man jihad”,[8] as him being on a “power trip”,[9] a “standover Master”[10] and as “an individual with his own agenda and a narcissist attitude”.[11]
[8] Exhibit 1 at p 326.
[9] Exhibit 1 at p 324.
[10] Exhibit 1 at p 325.
[11] Exhibit 1 at p 327.
Captain Willett subsequently transferred to another vessel.
On 30 March 2015, Mr O’Brien emailed Mr Sweetman stating:
Hi Daniel
I have agreeded (sic.) with Kirk [Hille] to rejoin the Sea Surfer on the 27/4/15.
Whilst serving under Capt David Willett as a (sic.) Integrated Rating and onboard
Elected HSE rep
i was repeatedly attacked verbally, misinformation was spread, I was also intimidated and embarrassed on numerous occasions.
My work hours were questioned, I was told by Capt David Willett that if i didnt (sic.) change them i would be sacked and never employed by AOS again,
Work hours were changed, after 35yrs at Sea and working as a Heavy Lift Superintendant for the last 5yrs, i have never experienced anything as bad.
I have always worked hard and been respectful, ive had many Capts and Managers in my career.
Moving on from this last trip, Daniel would you please consider me for a permanent position, you are aware of my qualifications and work performances.[12]
…
(emphasis added)
[12] Exhibit 2 at MO11.
An email from Mr Daniel Sweetman, HI/IR Manager at AOS, to Mr O’Brien, dated 7 April 2015, records a conversation between Mr Sweetman and Mr O’Brien in which Mr Sweetman issued Mr O’Brien with a warning concerning his behaviour on the vessel.[13] That email states:
Hi Mick,
This email serves as a record of our conversation regarding the issue that arose between the IR’s (sic.) and the Master during the last swing on the Sea Surfer.
During this conversation I advised that AOS are of the view that this situation got to the point where it was unacceptable and was not handled professionally by those involved. I also advised on this basis AOS felt it necessary to issue you with an informal verbal warning and instruction for future matters to be handled through the correct channels and in the right manner.
…
(emphasis added)
[13] Exhibit 2 at MO6.
By letter to Mr Sweetman dated 1 May 2015, Mr O’Brien rejected this warning through his representative, Mr Patrick Mullally of Workclaims Australia (registered industrial agents).[14] That letter states:
His swing on the Seasurfer under Captain David Willett was an unacceptable experience for our client. He was subjected to harassment and bullying by David Willett such that he resigned from your employment on the 4th March 2015.
[14] Exhibit 2 at MO7.
Mr O’Brien returned to the vessel, Sea Surfer, under a different captain and completed his fourth swing of employment with AOS between 26 April 2015 and 30 May 2015.
On 31 May 2015, Mr O’Brien ceased work with AOS and has not worked since.
On 19 June 2015, Mr O’Brien lodged a formal bullying complaint in a document titled “Bullying Complaint made by Michael O’Brien against Captain Willett on the Sea Surfer February and March 2015” (Bullying Complaint). The Bullying Complaint states:
…
3.I successfully completed two swings on the Sea Surfer before commencing a swing under Captain Willett on the 15th February 2015.
4.On the first swing I was elected by the crew as the Health and Safety Representative (HSE) for the ship.
5.The swing which started on the 15th February 2015 I ended early on the 15th March 2015 due to a problem with my teeth implants as one tooth had come out and I had a gum infection. I left the ship at Barrow Island.
6.On or about the 19th February 2015 I raised concerns with the operation of the cranes with Captain Willett about stretching the cranes’ capabilities and explained that trouble occurs when a crane is pushed to get the last possible reach and the last possible pound of lift. I also mentioned also never putt a load sideways. I said that competent trained reliable people make the difference. Captain Willett verbally attacked me saying that I didn’t know anything about cranes and I was not qualified to make an assessments (sic.) about cranes and it was best if I kept my mouth shut or I would never get picked up again by AOS. I was taken aback by this verbal onslaught as I am an accredited Worksafe Assessor WA (1085) and also I have an Advanced Diploma in OHS and I have extensive experience in operating cranes.
7.The crew safety meeting for this swing was held on the bridge on the 21st February 2015 attended by all crew members and Captain Willett. During the meeting I raised the following matters:
7.1 Excessive work hours;
7.2 Unreasonable performance demands;
7.3That Captain Willett was pushing the crew far too hard and had no real interest in their personal welfare and wellbeing and was only interested in reaching the requirements of the contract;
7.4That Captain Willett should not speak badly about a previous Captain (captain Paino) as it had nothing to do with us.
8.Captain Willett stated to the meeting that what I was saying was not true. He spoke in a demeaning and derogatory manner towards me and as HSE representative I was belittled in front of the crew and my authority was undermined.
9.In front of everybody he called me outside and spoke to me for about 5 minutes threatening me stating that I should keep my mouth shut or he would destroy my career. I found his conduct very intimidating and most unreasonable for a superior to treat a crew member and importantly one who was the elected HSE representative. I was dumfounded by this conduct and quite intimidated by it.
10.About a week after on or about the 28th February 2015 … I was told by Captain Willett that I had to change the work hours on my time sheets. He instructed me to change the time sheets to bring them back to 10 hours a day. He said words to the effect that if I didn’t I would not have a job with AOS and he would finish my career in the industry. I changed the sheets. The reason he wanted them changed was … that he expecting an audit at the end of the trip in Fremantle.
11.Throughout the entire swing for the 4 weeks that I was on board I was aware that almost on a daily basis Captain Willett was pushing the crew to work harder and faster than was reasonable. This impacted upon my responsibilities as HSE representative as I had a duty to [take] care to (sic.) the crew and would bring this up to the Captain all the time only to be rebuffed and persecuted for doing my job. He clearly has no regard for the wellbeing of the crew with excessive work hours and unreasonable performance demands and saw me as a threat to the way he wanted to run the ship.
12.I was aware and witnessed at times Captain Willett bullying other crew including the Second Officer Pieter Gorter.
13.By the 4th March 2015 I had enough and I resigned from the position. The conduct and behaviour of Captain Willett was extreme, unreasonable and likely to damage my health and safety. I stated in my email of resignation that I found it untenable to continue to work under the supervision of Captain Willett.
(emphasis added)
On 21 August 2015, Mr O’Brien lodged a “Claim for Workers’ Compensation” form with the Seafarers Safety, Rehabilitation and Compensation Authority claiming workers’ compensation from AOS for “psychological injury” sustained whilst working as an Integrated Rating on the Sea Surfer (Claim Form). On the Claim Form, Mr O’Brien stated that he first noticed he was ill on 7 March 2015 and that he reported his illness to AOS on 30 March 2015. The Bullying Complaint was attached to the Claim Form.
In 24 August 2015, Mr O’Brien lodged a “Form F72 – Application for an order to stop bullying” with the Fair Work Commission against Captain Willett (Fair Work Commission Application). The Fair Work Commission Application states:
2.2Describe an example of the behaviour, including where it occurred and how it creates a risk to health and safety (include where it happened and who witnessed the behaviour)
On or about the 19th February 2015 I raised concerns with the operation of the cranes with Captain Willett about stretching cranes’ capabilities and explained that trouble occurs when a crane is pushed to get the last possible reach and the last possible pound of lift. I also mentioned also never pull a load sideways. I said that competent trained reliable people make the difference. Captain Willett verbally attacked me saying that I didn’t know anything about cranes and I was not qualified to make an assessments (sic.) about cranes and it was best if I kept my mouth shut or I would never get picked up again by AOS. I was taken aback by this verbal onslaught as I am an accredited Worksafe Assessor WA (1085) and also I have an Advanced Diploma in OHS and I have extensive experience in operating cranes.
…
2.3Describe another example of the behaviour, including where it occurred and how it creates a risk to health and safety (include where it happened and who witnessed the behaviour)
About a week later on or about the 28th February 2015 I was told by Captain Willett that I had to change the work hours on my time sheets. He instructed me to change the time sheets to bring them back to 10 hours a day. He said words to the effect that if I didn’t I would not have a job with AOS and he would finish my career in the industry. I changed the sheets. The reason he wanted them changes was a (sic.) that he was expecting an audit at the end of the trip in Fremantle. The applicant reacted badly to this threat. This behaviour was entirely unreasonable management conduct and likely to endanger the health and safety of the applicant.
…
2.3What is the employer’s/principal’s response to the Applicant worker’s claim that he or she is being bullied, including whether the employer/principal agrees that he or she has experienced bullying at work?
1.During the February to March swing on the Sea Surfer, AOS became aware of some disharmony with Mr O’Brien and a couple of the other junior crew relating to Captain Willets (sic) management approach. AOS investigated the matter and came to the conclusion that there had been a personality clash on board stemming from a disagreement on Captain Willets (sic) management style.
2.Based on our conclusions we decided to move Captain Willet off the Sea Surfer to another vessel to diffuse the situation.
3.Following this decision Mr O’Brien asked if he could rescind his resignation from the Sea Surfer, which AOS agreed to in good faith. Mr O’Brien returned to the Sea Surfer under another Captain for the April-May swing.
4.A such Mr O’Brien has not worked with or had any contact at all with Captain David Willet since March.
5.When Mr O’Brien was due to return for his next swing in May/June he had advised he would not be returning and provided us with a formal complaint of bullying. AOS investigated this complaint, including addressing the items directly with Captain Willet to get a response, the outcome was that AOS could not find any proof to suggest that Mr O’Brien was bullied rather there was a personality clash relating to a difference of opinion around the Captains management style.
6.In his response to the items outline in section 2, Captain Willet stated that at no time did he become abusive toward Mr O’Brien and responded to the two items raised as follows:
a.Crane issue - Mr Willet stated that he advised Mr O’Brien that he did not agree with his opinion relating to the safety of the crane but would pass on Mr O’Briens (sic.) point to the company for further assessment none the less.
b.Work Hours - Mr Willet put a system in place to control work hours. If work hours were exceed (sic.) the vessel risked being detained by the relevant authorities.
7.Its (sic.) important to note that there have been no issues on the vessel Captain Willet is now on, this would further reinforce our conclusion that there was a personality clash onboard the Sea Surfer rather than a case of bullying and harassement (sic.).
…
3.2Please describe the complaint made by the Applicant worker and the steps taken by the employer/principal in response. Provide details of the outcome of any investigation.
Mr O’Brien made a complaint months after he ceased working with Captain Willet. As outline above AOS investigated these points and asked Captain Willet to respond to them. AOS are satisfied that it was a personality clash and moving Captain Willet to another vessel where he had no interaction with Mr O’Brien was a more than adequate outcome to diffuse any potential ongoing issues.
6.2On what basis does the employer/principal object? If objecting on multiple grounds, you can select more than one item from the list below.
…
[x]The alleged bullying behaviour was reasonable management action, carried out in a reasonable manner
Ultimately, however, Mr O’Brien did not proceed with the Fair Work Commission Application.
On 16 February 2016, AOS issued Mr O’Brien with a “Determination” declining Mr O’Brien’s claim for seafarer’s compensation (Original Determination). The Original Determination states:
Determination
AOS confirms the declinature of liability for your alleged injuries on the following basis:
1.there is no medical or factual evidence to suggest that you suffered injury during the course of your employment with AOS;
2.there is no medical or factual evidence to suggest that your employment with AOS caused, precipitated or aggravated your alleged injury;
3.in the alternative, if you did suffer an injury (which is disputed) there is no casual connection between your employment and the injury;
4.there is no medical evidence which clearly supports a work-related psychological/psychiatric injury; and
5.considering the evidence we are not satisfied that your claimed injury arose out of or in the course of your employment. As you did not suffer an injury as defined in the Act, your claim is declined.
Grounds of determination
We are not satisfied the evidence reasonably established that:
1.you suffered a compensable injury during the course of your employment; or
2. you were bullied during the course of your employment with AOS;
In this regard we note that:
3.you failed to disclose your significant and long standing past psychiatric history;
4.you claimed to be in remission prior to the injury which is not consistent with the medical evidence;
5.you ceased antidepressant medication, without medical consultation, prior to the swing with Captain Willett;
6.you made previous allegations of bullying with a previous employer but failed to inform Dr Terace;
7.you deliberately failed to disclose to the employer and Dr Terace his significant pre-existing psychiatric condition;
8.the alleged incidents with Captain Willett were investigated by AOS and found to be unsubstantiated;
9.you had been deliberately and fraudulently recording extra hours as a result of which the captain instructed you to change your timesheets;
10. you resigned in March 2015 due to a gum infection;
11.you were subject to a disciplinary process due to your behaviour on the vessel and issued a formal warning;
12. the captain and witnesses dispute that you were bullied; and
13. you do have a current capacity for work.
On 3 May 2016, AOS issued Mr O’Brien with an amended “Determination”. In short, the Original Determination was amended by the deletion of the following sentence:
9.you had been deliberately and fraudulently recording extra hours as a result of which the captain instructed you to change your timesheets;
(Amended Determination).
On 12 May 2016, Comcare Australia reported, the following:
Was the ailment contributed to in a material degree [by] his employment?
…
…Dr Lawrence Terace, Consultant Forensic Psychiatrist, states, in his report dated 23 December 2015, that ‘the overall evidence supports the view that the predominant if not the whole cause of Mr O’Brien’s condition is matters outside of the workplace pertaining to his constitution and other factors’, While Dr Kurt Fischer, Psychiatrist, in his report dated 3 November 2015, states that ‘the re-emergence of childhood emotional states, and his sense that his trust has been damaged are to my mind things that go beyond features of straightforward depressive episode and seem to speak more to the alleged bullying by the captain’.
Preferring the opinion of Dr Lawrence Terace, Consultant Forensic Psychiatrist, [i.e. to that of Dr Fischer] the medical evidence indicates that the disease was not materially contributed to by the employee’s employment.
…
This evidence indicates that the employee made a false representation that he did not suffer or had not previously suffered from, among other things, depression…
…
The employee appears, through his statement dated 25 February 2016, to be relying on Dr Babich’s medical report, dated 17 September 2015, to support that this statement wasn’t wilful. The report states that the Electroconvulsive Therapy (ECT) sessions that the employee had in 2007 may well have affected his memory.
The evidence indicates that the applicant was aware that he had previously suffered from a similar condition when completing the claim form on 21 August 2015. It would seem reasonable to conclude that he had been aware of this fact on 10 September 2014 [i.e. when completing the Pre-employment Questionnaire].
(emphasis added)
(Comcare Report)
On 15 March 2016, Mr O’Brien requested reconsideration of the Amended Determination.
On 20 May 2016, following reconsideration of the Amended Determination, AOS issued Mr O’Brien with a “Reconsideration Determination” which affirmed the Amended Determination and declined Mr O’Brien’s claimed for seafarer’s compensation (Reconsideration Determination). The Reconsideration Determination states:
This determination relates solely to the alleged incidents between 15 February 2015 and 15 March 2015.
Medical Relationship
We have examined all the medical evidence and make the following observations:
1.you had a severe and long standing history of psychiatric complaints dating back to childhood.
2.you had very severe depression in 2004, 2006 and 2007 resulting in hospital admission and ECT treatment.
3. you made allegations of bullying at work in 2010, with a previous employer;
4.you reported episodes of depression in 2012, 2013 and 2014 and of suicidal thoughts.
5.you failed to disclose your significant pre-existing medical history and previous allegations of bullying to Dr Terace.
6. prior to the alleged injury you were prescribed:
(a)Diazepam - used to treat anxiety, alcohol withdrawal syndrome, Benzodiazepine withdrawal syndrome, muscle spasms, seizures, trouble sleeping and restless leg syndrome; and
(b)Venlafaxine - an antidepressant for the treatment of major depressive disorders, general anxiety disorders, panic attacks and social phobia;
7.you had taken yourself off antidepressant medication in January 2015 (two months prior to the alleged injury).
8. Dr Terace reported that you do currently have a capacity for work.
AOS is not satisfied that you suffered an injury as defined by the Act during the course of your employment on or about 7 March 2015.
Employment Relationship
Due to the circumstances of your claim, your claim will be assessed under the injury provisions of section 3 of the Act. Therefore, AOS must consider whether the condition you suffered from arose out of, or in the course of, your employment with AOS.
AOS is not satisfied that you suffered an injury that arose out of, or in the course of, your employment with AOS.
Terms of Reconsideration
AOS by way of reconsideration, affirms its decision to decline liability for your alleged injuries on or about 7 March 2015, on the same basis as set out in the determination dated 16 February 2016, amended on 3 May 2016, relying on:
1. the medical report of Dr Terace, dated 23 December 2015;
2. the medical records and certificates;
3. personnel records;
4. the statement of Captain Willett.
Furthermore, AOS will also rely on the Comcare report, dated 12 May 2016, which found that:
-your condition was not materially contributed to by the employment with AOS;
-you previously suffered a similar condition;
-pursuant to s.10(7) of the Act you made a false representation that you did not and had not previously suffered from a similar condition;
-pursuant to s.10(7) of the Act it was reasonable to conclude that you were aware that you had suffered from a similar condition when you competed the pre-employment assessment.
Considering the evidence AOS is not satisfied that you suffered an injury that arose out of, or in the course of, your employment with AOS.
(emphasis added)
On 23 May 2016, Mr O’Brien applied to the Tribunal for review of the Reconsideration Determination. Mr O’Brien’s stated “Reasons for the application” are as follows:
The Applicant has requested a review because he claims he suffered an injury at work during the period 15th February and 15th March 2015 being a psychological injury caused directly or as an aggravation to an existing disease by the bullying conduct of his superior Captain Willetts (sic.).
The Employer and its insurer did not reach a correct finding regarding the alleged bullying, make correct findings as to the facts and failed to properly take into account clear medical evidence to support the causal connection between the conduct of the said Captain Willetts (sic.) and the injury to the Applicant and incorrectly applied the law.
The Applicant seeks an order that the employer be found liable to make payments or compensation to the Applicant pursuant to the provisions of the Seafarers Rehabilitation and Compensation Act 1992.
ISSUES
The ultimate issue for determination by the Tribunal is whether AOS is liable to pay Mr O’Brien seafarer’s compensation pursuant to s 26 of the SRCA. This turns on whether Mr O’Brien suffered an “injury” that resulted in “incapacity for work”.
To determine this ultimate issue, the following issues must first be determined:
(i) whether Mr O’Brien is suffering from an “ailment”, as defined in s 3 of the SRCA;
(ii)if “yes”, whether Mr O’Brien’s “ailment” or the “aggravation” of that “ailment” was “contributed to in a material degree” by his employment with AOS (i.e. such that his “ailment” constitutes a “disease”, as defined in s 3 of the SRCA, and, in turn an “injury”, as defined in s 3 of the SRCA);
(iii) if “yes”, whether Mr O’Brien’s “ailment” resulted in “incapacity for work”; and
(iv)whether Mr O’Brien made a “wilful and false representation” to AOS that he did not suffer, or had not previously suffered, from the “ailment” for the purpose of s 10(7) of the SRCA.
EVIDENCE
Following a summary of the evidence (comprising “Mr O’Brien’s evidence”, the “Lay evidence” and the “Medical evidence”), each of the above issues is considered, in turn, below.
Mr O’Brien’s evidence
In support of his request for reconsideration of the Amended Determination, dated 15 March 2016, Mr O’Brien provided a Witness Statement, dated 25 February 2016.[15] Mr O’Brien subsequently provided a Witness Statement, dated 14 September 2016, in support of this application.[16] Mr O’Brien also gave oral evidence at the hearing of this application.
[15] Exhibit 1 at pp 349 – 357.
[16] Exhibit 2.
Mr O’Brien’s Witness Statement, dated 25 February 2016, provides:
THE INCIDENT
6.On 16 September 2014 I began working on the Sea Surfer with the Australian Offshore Solutions (AOS).
7.I was elected by the crew of the Sea Surfer to be the Health and Safety Representative.
8.I have a broad knowledge of safety. I am an accredited Worksafe Assessor WA (1085) and also I have an Advanced Diploma in Occupational Health and Safety.
9. My first swing under Captain Willett began on or about 15 February 2015.
10.On or about 19 February 2015 I raised some safety concerns I had regarding the operations of the cranes with Captain Willett. I explained that there are significant safety risks when cranes are pushed to maximum lift and reach. I also mentioned a load should never be pulled sideways. I said that competent trained people make the difference.
11.Captain Willett then verbally attacked me and said l didn’t know anything about cranes and i was not qualified to make an assessment about cranes and it was best if I kept my mouth shut or I would never get picked up again by AOS.
12.I was shocked by this verbal attack by Captain Willett as I have extensive experience in operating cranes.
13.On or about 21 February 2015 I attended a crew safety meeting with all crew members and Captain Willett.
14. During this meeting I raised the following matters:
a. Excessive work hours;
b. Unreasonable performance demands;
c.That Captain Willett was pushing the crew far too hard and was not interested in their wellbeing and was only interested in reaching the requirements of the contract;
d.That Captain Willett should not speak badly about a previous captain (Captain Paino);
15.Captain Willett said at this meeting that what I was saying was not true. He spoke in a demeaning and derogatory manner towards me and I felt belittled and that my authority was undermined in front of the rest of the crew members.
16.Captain Willett called me outside and spoke to me for about 5 minutes and said he would ‘destroy my career’ if I brought up such issues.
17. I found Captain Willett’s (sic) intimidating and unreasonable.
18. I became insecure and frightened.
19.On or about 28 February 2015 Captain Willett informed me that I had to change my hours on my timesheets and that he had to bring the hours back to 10 hours a day. He said that if I didn’t do this I would not have a job with AOS and he would finish my career in the industry.
20.Throughout the entire 4 week swing that I was on board the Sea Surfer I witnessed Captain Willett pushing the crew almost daily to work harder and faster than what was reasonable.
21.Captain Willett's conduct impacted upon my responsibilities as a HSE representative as I had a duty of care to ensure the crew's safety. I would often try to discuss this with Captain Willett only to be persecuted by him for not doing my job.
22.I believe that Captain Willett saw me as a threat to the way he wanted to run the ship.
23.At times I also witnessed Captain Willett bullying other crew members included the Second Officer Pieter Gorter.
24.On or about 4 March 2015 I resigned from the position as I felt the conduct and behaviour of Captain Willett was extreme and unreasonable and was effecting my health and also put my safety at risk.
25.I went back for one more trip with the Sea Surfer on 27 April 2015. Captain Willett was not there on that trip.
…
(emphasis added)
Mr O’Brien’s Witness Statement, dated 14 September 2016, provides:
...
4.My previous ECT treatment has been referred to. This treatment was administered to me at Perth Clinic where I had been sent by my treating psychiatrist Dr Combrinck during October 2005 and August 2007.
5.By reference to previous medical reports which I have now seen from the medical records of my treating GP Dr Babich, I am able to confirm that I have had at least 2 series of ECT treatments. I attach those medical reports: M01 is a report from Dr Combrinck dated the 13th October 2005; M02 is a report from Dr Combrinck dated the 10th August 2007.
6.I have no independent recollection of the ECT treatment or my mental health before the treatment.
7.My treating GP Dr Babich provided a medical report to Workclaims Australia dated the 17th September 2015. I attach this report as M03.
…
8.I have no recollection of making allegations of bullying in 2010 when I was an employee of PTTEP. I have obtained a character reference from one of my supervisors during this time Mr Peter McWhinney. Attached hereto and marked M04 is a copy of his reference.
…
9.When I completed the pre-employment medical assessment I provided my answers to the best of my memory and recollection. I completely reject any assertion that my answers were wilfully false.
…
10.I was given medication by Dr Babich and he confirmed cessation of it on the 27th January 2015. I ceased taking the medication as I felt that I no longer needed it.
…
11.The respondent refers to an investigation of my bullying complaint. I have never been asked to provide any further evidence of my complaint other than what I submitted in writing in June 2015. I had already complained about Captain Willett to management earlier and my detailed statement was provided at the request of Daniel Sweetman from the respondent. I was not the only one to complain about Captain Willett. Many crew members found his behaviour to be intolerable. Despite a number of requests to Daniel Sweetman for a copy of the report following the investigation, I have never been provided with a copy. The most recent request was made to the respondent’s lawyers by my industrial agents Workclaims Australia, Furthermore I have never received a response regarding my bullying complaint, I attach my bullying complaint dated the 19th June 2015 : MO5
…
12.…I did receive an email from Daniel Sweetman of the respondent on the 7th April 2015 which stated that it was a confirmation of a conversation he had with me regarding the issue on board and was an informal verbal warning. I refuted the basis of the warning and continue to refute it. There was abundant evidence not just from me but other crew members that Captain Willett was a bully on that swing. The warning was misconceived and when I returned to the ship I found that no other crew member had been issued with a warning like I had and so I saw this as an act of bullying me by the respondent’s Daniel Sweetman. I attach the email dated the 7th April 2015: MO6
13.On or about the 1st May 2015 I consulted Workclaims Australia and instructed that firm to write to Daniel Sweetman on my behalf regarding his email of the 7th April 2015. I attach the letter from Workclaims Australia dated the 1st May 2015: MO7
14.Following the letter, Daniel Sweetman later asked for more details of the bullying complaint which I duly provided on the 19th June 2015. I never received any response or outcome of my complaint. On the 24th August 2015 I lodged an application in the Fair Work Commission to stop the bullying by Captain Willett. I attach the Form F72 dated the 24th August 2015 and the respondent’s Form F73 dated the 2nd September 2015 as a bundle : MO8
…
15.It was not just me who experienced the bullying behaviour and conduct of Captain Willett but many other crew members. I complained at the time of the occurrences that he was bullying me. The very first safety meeting on board the Sea Surfer saw the start of it and I sent an email to the second officer Pieter Gorter dated the 15th March 2015 stating my concerns. I attach the email: M09
16.I resigned from the Sea Surfer on the 4th March due to the behaviour of Captain Willett. I attach the email of the 4th March 2015: M010
17. In an email of the 30th March 2015 to Daniel Sweetman I confirmed that I would return to the Sea Surfer on the 27th April 2015 I also pointed out in that email what Captain Willett had done to me. My complaints of the 30th March 2015 were never addressed by Daniel Sweetman and certainly nothing was ever conveyed back to me. I attach the email of the 30th March 2015 and the reply of the 31st March 2015: M0ll
…
18.Dr Terace had all of my medical records in his possession and I did not seek to hide anything. Prior to 2004 I did not have any mental health issues and Dr Terace seems to have ignored the fact that I had worked for many years very successfully and also served in the military. I was in the Parachute Regiment between 1975 and 1983 and during that time served in Northern Ireland, Rhodesia and Cyprus and the Falkland Islands. Between 1983 and 1988 I served in the 44th Parachute Battalion in the South African Defence Force and in 1988 I served in the Merchant Navy and saw action in the first Gulf War. I have also worked successfully for various companies in Western Australia. I attach my Resume: M012. Furthermore I had worked successfully for the respondent since September 2014 and had no mental health issues until bullied by Captain Willett.
…
19.I take issue with the conclusion that there is something sinister in my completion of the application Form for workers compensation on the 21st August 2015 which is reproduced in T23 p 153-160 on the basis that I disclosed previous mental health issues then, but didn’t do so in my pre-employment questionnaire. When I completed the application for workers compensation I did so with the assistance of Patrick Mullally from Workclaims Australia and he had by then seen the medical records of Dr Babich and he told me to complete the form in the way that I did. As I have already stated I completed the pre-employment medical questionnaire to the best of my ability and recollection.
…
35..I deny that I deliberately and fraudulently recorded extra hours. I was directed by Captain Willett to change my time sheet which I did, but I do not consider that to be reasonable management action by him.
…
36.I deny that I bullied Captain Willett. This is a complete reversal of the truth. I never mentioned outlawed motor cycle gangs to him, nor did I mention the masons. This allegation about me being a bully towards him is of recent invention. Had it been true he would have taken me off the ship. He certainly has not made any prior written accusations that I bullied him.
37.There is abundant corroborating evidence from others on the ship, the MUA and other crew members. I have reported his behaviour in emails and correspondence and not once did the respondent resist my claims on the basis that I in fact was the bully. It is simply untrue.
(emphasis added)
Mr O’Brien’s oral evidence at the hearing was, in summary, as follows:
· He was not suffering from a psychological/psychiatric injury and was in good health when he completed the Pre-Employment Questionnaire on 10 September 2014: refer to paragraph 11 above;
· He confirmed that he commenced his first swing of employment with AOS onboard the vessel, Sea Surfer, on 30 September 2014 and that he ended that swing on 2 November 2014;
· He confirmed that he was aware that the vessel, Sea Surfer, had been subject of an investigation by AMSA for significant non-conformance, including hours of work and rest;
· He consulted his general practitioner, Dr Babich, on 27 November 2014, at which time he complained of being depressed and suffering mood swings. He felt dark and had suicidal thoughts. His sleep was poor at sea and spasmodic at home. Counsellors had not helped and he thought he was losing his mind. Dr Babich prescribed him Effexor, an antidepressant;
· He acknowledged that on 5 December 2014, he was prescribed Effexor - five repeats;
· He confirmed that he commenced his second swing of employment with AOS on board the vessel, Sea Surfer, on 8 December 2014 and that he ended that swing on 15 January 2015;
· He agreed that he attended on his general practitioner, Dr Babich, on 27 January 2015, at which time he told Dr Babich he ceased taking Effexor, the antidepressant, whilst at sea;
· He confirmed that he commenced his third swing of employment on board the vessel, Sea Surfer, on 15 February 2015 and that Captain Willett persecuted him throughout that swing. He said he first met Captain Willett on the vessel. He was unable to recall clearly the circumstances of his joining the Sea Surfer. He seemed to think that he had sailed the vessel down from Singapore but, when showed his sea service record, it became apparent that he joined the Sea Surfer in Fremantle;
· He said that from the very first minute he met Captain Willett, on 15 February 2015, until 19 February 2015, Captain Willett pestered him and was relentless and aggressive towards him. A safety meeting was held at which time the animosity from Captain Willett came to a head. After that, it got worse. Captain Willett would find him alone at various places on the vessel and say aggressive, intimidating and belittling things to him such as “I’m going to destroy you”;
· He said Captain Willett pulled him out of the safety meeting, in front of everybody, to talk to him on the bridge. He denied that any subsequent discussion on the bridge was amicable and that he shook Captain Willett's hand at the conclusion of the meeting;
· He said the discussion in the safety meeting was about cranes and was heated because he was raising a valid concern as an HSE representative;
· He said that the discussion in the meeting was not Captain Willett addressing the crew or him as an HSE representative but, rather, Captain Willett attacking him personally and belittling him in front of the crew;
· When asked about his timesheet records, Mr O’Brien said that he was working 16 hours a day. When asked why he had to work 16 hours a day, he said this was because the ship had sailed with one man short. He was then asked how the MUA would allow a ship to sail with one man short and he did not properly answer this. Mr O’Brien said that "he" had been promised an extra man on the vessel;
· He said he actually did work 16 hours a day and that AOS wanted him to falsify the records so that they would satisfy the non-conformance points raised by AMSA at AMSA's last inspection of the vessel;
· When it was put to him that Captain Willett, Mr Hosking and Mr Von Lichten had given Statements refuting his claims and in particular, his claims that he was bullied by Capital Willett, Mr O’Brien said that they were all liars;
· He said Captain Willett used to take any opportunity to find him alone at various places on the vessel and then use belittling, harassing and intimidating words and behaviour towards him. When asked why there were no other people around to witness it, Mr O’Brien said that Captain Willett would purposefully try to look for opportunities to find him alone and when asked why Captain Willett would try to do that, he said that "that's how bullies operate";
· When asked if Captain Willett, as the captain of the vessel, was the ultimate authority on the vessel, Mr O’Brien agreed. Mr O’Brien was then asked whether he obeyed every order given to him by Capital Willett. Mr O’Brien said he obeyed every order given by Captain Willett. He said he raised concerns that he had about the cranes with Captain Willett but that once he had done that, and was given an order by Captain Willett, he said he would follow it;
· Mr O’Brien was asked why there was any continuing dispute then between him and Captain Willett if the order given by the captain was followed by him and he said because he would do things “his way”;
· Mr O’Brien was directed in cross examination to the email, dated 7 April 2015, forwarded to him by Mr Sweetman. He said he could recall Mr Sweetman calling him one night at 5.00pm during which call Mr Sweetman told him to "pick up your work" and that there needs to be "no more messing around". He acknowledged that he had been given a verbal warning by Mr Sweetman which was later confirmed by the email dated 7 April 2015;
· In cross-examination, Mr O’Brien was asked why his email resignation did not mention bullying, bullying by Captain Willett, incapacity, injury or claim or potential claim for compensation. Mr O’Brien offered no explanation for this;
· Mr O’Brien said that he did not want to lodge a claim for compensation because he did not want to “go on compo”. He said he just completed his swing and returned home;
· He confirmed that he did not continue with the medication prescribed;
· Mr O’Brien was asked about his ECT treatment in 2007. He confirmed that he received ECT treatment in 2007 and was discharged with a medication regime and that he did not continue with the medication prescribed to him because he did not have any problems at all after 2007;
· He denied that he did not give Dr Terace a full medical history. He said he told Dr Terace about everything but Dr Terace was not interested in listening to him; and
· In re-examination, he was directed to his email to Mr Sweetman dated 30 March 2015, which did not indicate that he was making a claim and/or suffering a psychological/psychiatric injury and he returned to work on a fourth swing commencing on 26 April 2015.
Lay evidence
Mr O’Brien does not rely on the evidence of any lay witnesses in support of his application.
AOS relies on the evidence of the following lay witnesses in support of its position:
· Captain David Willett, Captain and Master of Ships employed by AOS (at the relevant time);
· Mr Luke Hosking, Chief Officer at AOS (at the relevant time);
· Mr Daniel Sweetman, HR/IR Manager at AOS (presently and at the relevant time);
· Mr Glen Frewin, Operations Director at AOS (presently and at the relevant time); and
· Mr Conrad Van Lichtan, Integrated Rating employed by AOS (at the relevant time).
Captain David Willett
In or about December 2015, Captain Willet provided a Statement, undated, over which AOS has waived privilege.[17] Captain Willett also provided a further Statement in these proceedings, dated 24 September 2016.[18] Captain Willett also gave oral evidence at the hearing of this application.
[17] Exhibit 1 at T61 pp 425 446.
[18] Exhibit 8.
Captain Willett’s first statement, undated, provides:
…
4.I am employed as a Captain and Masters of Ships and up until November 2015 I was employed with the company known as Australian Offshore Solutions (AOS) which has its head office located at 14 Kearns Crescent, Applecross.
5. Australian Offshore Solutions (AOS) is involved in the shipping industry and more specifically it provides vessel charters, marine crewing, rig crewing, rig moving/tow masters, vessel management and other specialised marine services.
6.Between the middle of February and the middle of March 2015 I was employed with AOS in a position as Captain and master on the vessel known as the Sea Surfer, which operated around the North West of Western Australia.
7.The Sea Surfer had a number of persons on board one of those persons was a man I know as Michael O’Brien. Mr O’Brien was also employed on the vessel by AOS as an Integrated Rating (IR).
8.On 15 February 2015 I along with a number of other crew members including Michael O'Brien commenced a swing on the vessel known as the Sea Surfer under my control.
9.Mr O'Brien left the Sea Surfer on or about 4 March 2015 after he resigned from his employment with the Sea Surfer.
10.Sometime later and I think it was in June 2015 I became aware that Mr O’Brien made a complaint to AOS claiming that he was bullied and harassed in the workplace by myself.
11.During the course of the voyage on the Sea Surfer we had regular Safety Meetings so that the crew could discuss any concerns they had with any issues including safety on board the ship while it was working.
12.On or about 19 February 2015 I recall that the crew attended to one of these meetings and during that meeting Michael O'Brien raised his concerns with the operation of the cranes on board the vessel.
13.His issue was that he feared that the cranes were being operated at their maximum capabilities and he was worried that the cranes were not capable to perform their task safely for the tasks we had been doing or were going to do while working during this swing on board.
14.He also raised issues to doing with the training of the crew on board and wanted them to go on specialist training.
15.Mr O'Brien has now claimed that during that meeting that I bullied and harassed him over the issue. I can say that at no time did I ever bully or harass Michael O'Brien at this meeting.
16.During these meeting there is always minutes taken of the meeting and I produce those minutes with this statement as Attachment "A".
17.After all of these issues were raised by Michael O'Brien I sent the details to Captain Glen Frewin at the AOS Head Office in Perth for his review and he responded in writing and i also placed his written response on the ships notice board.
18.At the meeting I recall that I told Michael O'Brien that I thought the cranes were being used correctly as per the guidelines provided by Captain Glen Frewin for the use of deck cranes.
19.I also told him that none the less I would pass his concerns to the Head Office regarding the cranes and the training issues but I did not think that they would concur with Michael O’Brien's thinking as the cranes were all certified and VOC to do the job.
20.The simple fact that I did not support Michael O’Brien's views on the cranes does not mean that I intimidated or belittled him at the time, Michael O'Brien simply could not accept another viewpoint on the issues over the cranes.
21.On 21 February 2015 the crew attended to a Safety meeting and during this meeting Michael O'Brien also raised a number of other issues and they included excessive work hours and unreasonable performance demands.
22.He also stated that I was pushing the crew too hard and that I had no interest in reaching the requirements of the contract.
23.He also stated that I had been speaking badly at this meeting about another Captain who had been the Master on the Sea Surfer before me.
24.The issues were that the crew on the Sea Surfer and this included Michael O'Brien in particular were recording hours on the Work and Rest Forms that where known to not have completed or worked.
25.The crew was saying that they were starting at 2:00 a.m. in the morning for no reason especially when they had not been asked to. Mr O’Brien was also claiming to have worked the hours prior to lunch when he was on the 12 Midday to 4:00 p.m. shift. It was known that Mr O'Brien was in the mess room on the vessel at the time having lunch and was frequently observed doing so.
26.The history of this issue is that in October 2014 the ship had been detained by the AMSA for non-conformance issues. One of the non-conformance issues was the hours of work and rest.
27.To get this issue back on track the crew was given specific working hours and they were expected to adhere to these hours.
28.These work hours had been posted on the IMO Work Hours Form in the mess room and on the bridge of the vessel.
29.Specifically it stated that Michael O'Brien would work a six hour shift namely 1200 to 1800 and then from midnight to 0400 hours.
30.This roster ensured that there was always two IR's on deck for daytime operations and it also meant that no-one was working more than ten hours each day.
31.Further any extensions over these working hours had to be approved by the Chief Officer Luke Hoskins and any overtime over thirteen (13) hours had to be specifically approved by myself in an effort to ensure that no one breached the fourteen (14) hour daily limit.
32.As a result of this initiative the crew were now working less and recording fewer hours than at any other time in the previous six (6) months on the vessel and while working on this project the vessel was allocated to.
33.This initiative had been previously show to the crew and discussed with them and they all agrees that it should be complied with in an effort to prevent the vessel from being detained again. The problem was if the vessel was detained again it would be sent away from the Australian Coast.
34.At no time did I ever speak badly regarding the previous Captain on board the vessel.
35.At the time of this swing on the Sea Surfer the entire crew had been made aware of the fact that there had been a large number of non-conformance issues ranging from the hours worked by the crew, quarantine and environment issues that were outstanding on the Sea Surfer and that these issues had not been adequately addressed in previous swings on the vessel.
36.The crew was told that the vessel needed to implement any outstanding controls to address these issues.
37.The previous Captain Frank Paino is a good friend of mine and he was never undermined in any way.
38.I believe that Michael O'Brien has chosen to take this approach as justification to not change the way things were done on the Sea Surfer.
39.I believe that I was simply trying to change the crews approach to any outstanding non-conforming issues because the vessel could not continue on this path and get banned from operating in Australian waters.
40.In relation to the crew welfare I told the crew that I was happy to have a ship welfare committee meeting at any time as outlined in the MUA EBA. This meeting was to comprise of the Captain, Chief Officer, Chief Engineer and a crew representative.
41.The crew were told they could nominate any one they wanted and the meeting could be held at any time of their choosing. The crew never responded with either a time or nominated a committee member.
42. Michael O' Brien was never belittled at any of the crew meetings.
43.In fact the only crew meeting he attended was the safety meeting as I have described above. As he was the 12 midnight to 0400 hours watch keeper he did not attend any morning meetings.
44.At this meeting Mr O'Brien actually trying to intimidate me in that he was telling me how he often physically abused the MUA hierarchy, that he was a senior member of an outlawed motorcycle gang and that he could get things fixed easily. He also stated that he was a level 31 Mason who had high connections on the Chevron project and that he just had to make a call.
45.After this outburst at the Safety Meeting the crew was caught surprised by Mr O’Brien's aggressive nature and l asked to speak to him outside on the bridge wing. He certainly was not called out in front of everyone. He was quietly approached after most of the crew had left the bridge.
46.On the bridge wing I explained to Mr O'Brien that I was surprised by his reaction and that I had no idea he had such strong feelings against me.
47.At this point I told him that Frank Piano was a personal friend of mine and that my objective was to get the Sea Surfer back on track for the project and to close out the non-conforming issues on the vessel as soon as possible so that we could have a good swing all round.
48.At the time Michael O'Brien shook my hand and thanked me for my time saying he understood my situation and he would also try and help improve the culture as he said he was influential among the crew. He also said that there would be no MUA trouble while he was aboard because the MUA hierarchy was scared of him.
49.As far as the time sheets were concerned Michael O'Brien was actually asked to change his time sheets by the Chief Officer and not me.
50.The reason was that he was recording the hour before he started work, as work hours, when he was in the mess room having his lunch.
51.At the time we had a policy on board the vessel of filling in the previous days timesheet on the bridge before a crewmember started work the next day.
52.This policy meant that your work hours were fresh in a crew members mind when they were recorded and it also meant that it was more transparent to bridge staff if excessive hours were being recorded.
53.Michael O'Brien was deliberately and in my view fraudulently recording extra hours, as he wanted to prove that the work could not be done in an ordinary watch. His mission was to get an additional IR on board.
54.He had previously been told that AOS would not pay for the extra IR but he simply could not accept this fact.
55.At no time did I ever advise Michael O'Brien that he would not have a job with AOS or the industry.
56.The crew was informed however that at the end of the current project there was a possibility of a further two year contract to run supply between Barrow Island and Fremantle while a bigger boat was built.
57.The upside was two years work for two of the four crews on the current project if the contact was awarded to AOS but the downside was that two of the crews would miss out on work.
58.I stressed to the crew that to be one of the two crews who got the extension to the contract we had to make sure that the Sea Surfer was the best boat for the job.
59. The crew was also told that if the AMSA found any further non- conforming issues on the vessel, especially relating to hours of work and rest periods, then the Sea Surfer would be sent off from the coast of Western Australia and not allowed to return.
60.The Sea Surfer was and still is registered in Cyprus and if the vessel was found to be in breach again then it could be off hire and off the coast for a minimum of three months and then we would have no work at all.
61.Again at no time did I say to Michael O'Brien that he would loose his job.
62.In fact during this swing as outlined above the AMSA did come aboard and look at the hours worked and the rest periods to see if anything had been done about them since the vessel was detained in October 2014 for breaches of work hours.
63.The AMSA Surveyor saw the system I had in place to monitor work hours, was very impressed and as a result closed out the non-conformance issue.
64.At no time during the entire swing did Michael O'Brien express any concern to me about the crew being pushed too hard, either personally or as the HSE representative.
65.He was not happy with the changes to the rostered hours of duty but admitted that he had no specific problems with the way the vessel was being run.
66.I believe that this complaint is a case of Michael O'Brien attempting to make up a situation that did not exist in an effort to undermine my performance as the Captain of the Sea Surfer and also because I would not support him over the crane issues.
67.No crew members on board the Sea Surfer were ever bullied or harassed in the workplace and nor were any issues of this nature raised with me while I was on the Sea Surfer.
68.I am also aware that Michael O'Brien had applied for a position as a heavy lift supervisor on Barrow Island before I joined the Sea Surfer or new anything about his personally.
69.I am aware of this because Michael O'Brien had approached the Chief Officer and asked him to assist him to write a resume for him so he could apply for the job.
70.This indicated to me that Michael O'Brien was already planning to leave the Sea Surfer before I was even on the boat for this particular swing.
71.I believe that if anyone was bullied or harassed during this swing commencing in February 2015 and prior to Michael O'Brien leaving the ship in March 2015 it was me being bullied and harassed by Michael O'Brien.
72.I say this because he threatened me with intimidation from his outlawed motorcycle gang and the Mason and as he said "he knew people to get things fixed his way".
73.I believe that Michael O'Brien's accusations that I bullied and harassed him in the workplace are baseless and defamatory towards me.
74.While on the Sea Surfer I only ever gave Michael O'Brien lawful instructions when it came to his work on the vessel and at no time did I ever bully or harass him on the ship.
75.I consider any actions =by myself to be a legitimate management action and not bullying or harassment in the workplace and my instructions were only ever given to Michael O'Brien to correct any behaviours especially in relation to the completion of paperwork on work hours. His incorrect actions were noted and then corrected, as is my role as the Master of the ship.
…
(emphasis added)
Captain Willett’s second Statement, dated 24 September 2016, provides:
Personal Details
1.I was born on xx xxxx 1972 and am by occupation a Captain and Master of Ships.
2.In February 2015, I was employed by Australian Offshore Solutions Pty Ltd (“the Respondent”) which has its head office as 14 Kearns Crescent, Applecross.
3.Between 15 February 2015 and 22 March 2015 I was employed by the respondent as the Captain and master on the vessel known as the “Sea Surfer”, which operated around the North West of Western Australia
The February/March 2015 Swing
4.On 15 February 2015, I along with a number of other crew members commenced a swing on the vessel “Sea Surfer” under my control.
5.The ‘Sea Surfer’ had a number of crew on board for this swing and one of those was Michael O’Brien (“the applicant”), who was employed as a casual Integrated Rating.
6.I had not met the applicant nor was the applicant known to me, prior to 15 February 2015.
7.I was the fifth Captain on board the Sea Surfer in four swings. I understand that the previous Captains had resigned as it was a difficult project and the crew were uncooperative.
The detention of the “Sea Surfer” by AMSA
8.In October 2014 the vessel “Sea Surfer’ was detained by AMSA for non-conformance issues due to:
(a) reported deficiencies in hours of rest not meeting the minimum requirement; and
(b) reported deficiencies on operational/maintenance effectiveness.
9.There were a large number of non conformance issues that had to be addressed on the vessel from hours of work and rest, quarantine and environmental standing and controls needed to be implemented,
10.Unfortunately, the non conformance issues were not adequately addressed by previous swings between October 2014 and February 2015.
Non conformance issues and controls
11.When I took control of the vessel on 15 February 2015, a number of controls were I put in place in order to close off the non conformance issues which included:
(a)giving the crew specific working hours to which they were expected to adhere;
(b)the work hours were posted on the IMO Work Hours Form in the mess room and on the bridge of the vessel and specifically, it stated that the crew would work a six hour shift namely 1200 to 1800 and then from midnight to 0400 hours.
(c)this roster ensured that there was always two integrated ratings on deck for daytime operations and it also meant that no-one was working more than ten hours each day.
(d)any extensions over those working hours had to be approved by the Chief Officer, Luke Hosking and any overtime over thirteen (13) hours had to specifically approved by myself In an effort to ensure that no one breached the fourteen (14) hour daily limit.
(e)as a result of this initiative, the crew were now working less and recording fewer hours than at any other time in the previous six (6) months on the vessel and while working on the project to which the vessel was allocated;
(f)at the time we had created a policy on board the vessel of completing the previous day’s timesheet on the bridge before a crewmember started work the next day, which meant that work hours were fresh in a crew members mind when they were recorded and it also meant that it was more transparent to bridge staff if excessive hours were being recorded.
(g)the initiative had been previously shown to the crew and discussed with them and they ail agreed that it should be complied with in an effort to prevent the vessel from being detained again.
12.The concern was that if the vessel was detained again, it would be sent away from the Australian Coast.
13.At the time of this swing on the “Sea Surfer” the entire crew had been made aware of the fact that there had been a large number of non conformance issues ranging from the hours worked by the crew, quarantine and environment issues that were outstanding on the Sea Surfer and that these issues had not been adequately addressed in previous swings on the vessel.
14.I was simply trying to change the crew’s approach to the outstanding non-conformance issues because the vessel could not continue on the path it was on or it would have been banned from operating in Australian waters, which would have resulted in job losses for all concerned.
15.I deny that l undermined the previous Captain, Frank Paino, who was a personal friend of mine, or previous crews but explained to the crew that there were a large number of non conformance issues that had not been adequately addressed in previous swings and that we would have to implement controls to address them and that my objective was to get the °Sea Surfer’ back on track for the project and to close out the non-conforming issues on the vessel as soon as possible so that we could have a good swing all round.
16.The "Sea Surfer" was and still is registered in Cyprus and if the vessel was found to be in breach again, then it could have been off hire and off the coast for a minimum of three months and then there would have been no work at all.
17.In fact during the swing which t was in control, AMSA did come aboard and look at the hours worked and the rest periods to see if anything had been done about them since the vessel was detained in October 2014 for breaches of work hours.
18.The AMSA Surveyor saw the system l had in place to monitor work hours and was very impressed and as a result, dosed out the non-conformance issues
The Meeting on 19 February 2015
19.On 19 February 2015, l recall that i attended a safety meeting with the crew during which the applicant raised concerns with the operation of the cranes on board the vessel and training.
20. The applicant’s issues were that:
(a)he feared that the cranes were being operated at their maximum capabilities and he was worried that the cranes were not capable of performing safely the tasks we had been doing or were going to do while working during this swing on board;
(b)he believed that the deck cranes were project cranes and not marine cranes and that the crew should receive specialist training on them
21. I told the applicant that:
(a)I believed that the cranes were being used correctly as per the guidelines provided by Captain Glenn Frewin, Director of Operations at AOS, and that the cranes were marine cranes and training was not required
(b)none the less I would pass his concerns regarding the cranes and the training issues onto Head Office but I did not think that they would concur with his views as the cranes were all certified and the crew were VOC’d (Verification of Competency) to do the job.
22.I did not support the applicant’s views but I certainly did not intimidate or belittle him as he has alleged. The applicant simply would not accept another viewpoint on the j issue over the cranes and training.
23.I referred the applicant’s concerns to Captain Glenn Frewin at Head Office in Perth for his review and he and Daniel Sweetman came on board the vessel In February 2015 to consider the concerns and responded in writing. I also placed his written response on the ships notice board.
24.I can categorically state that at no time did I bully or harass the applicant during this meeting or at all.
Meeting on 21 February 2015
25.On 21 February 2015, I attended a safety meeting with the applicant and the crew during which the applicant raised a number of issues, including what he considered to be excessive work hours and unreasonable performance demands.
26.The applicant stated that l was pushing the crew too hard and that l had no interest in reaching the requirements of the contract and had been speaking badly at this meeting about another Captain who had been the Master on the Sea Surfer before me.
27.I did not agree with the applicant's allegations and had implemented procedures and controls to ensure that the vessel “Sea Surfed was not detained by AMSA for non-conformance issues, one of which was to do with the crew recording hours that they were known to have not completed or worked.
28.As previously explained above in order to get this issue back on track, the crew were given specific working hours and they were expected to adhere to these hours.
29.The applicant was actually asked to change his time sheets by the Chief Officer, Luke Hosking, and not me.
30.The applicant was claiming to have worked the hour prior to lunch when he was on the 12 midday to 4.00 pm shift but he was known to be in the mess room having lunch at the time and was frequently observed doing so.
31.In fact, at this meeting, it was the applicant who actually tried to intimidate me by telling me how he often physically abused the MUA hierarchy, that he was a senior member of an outlawed motorcycle gang and that he could get things fixed easily. He also stated that he was a level 31 Mason who had high connections on the Chevron project and that he just had to make a call,
32.After this outburst at this Meeting, the crew were caught surprised by the applicant's aggressive nature and I asked to speak to him outside on the bridge wing. He certainly was not catted out in front of everyone. He was quietly approached after most of the crew had left the bridge.
33.On the bridge wing, I explained to the applicant that l was surprised by his reaction and that I had no idea he had such strong feelings against me.
34.At this point I told him that Frank Paino was a personal friend of mine and that my objective was to get the “Sea Surfer” back on track for the project and to close out the non-conforming issues on the vessel as soon as possible so that we could have a good swing all round.
35.At the time, the applicant shook my hand and thanked me for my time saying he understood my situation and he would also try and help improve the culture as he said he was influential among the crew. He also said that there would be no MUA trouble while he was on board because the MUA hierarchy were scared of him.
Issues on the vessel
36.Prior to joining the vessel “Sea Surfer” I worked for the respondent on the vessel “Sea Swan" where l had a good relationship with the crew.
37.However, on joining the “Sea Surfer” I felt like an unwelcome outsider who was trying to make changes that were required for the project but not wanted by the crew.
38.I conducted weekly walk arounds for the logbook and quarantine requirements as well as daily checks of the deck for my knowledge. The crew were very unhappy with me doing this and felt mat I was checking up on them. However, all that I was dealing with was audit findings. It was very hard for me to get the crew to work outside the eight hours and I noticed that their timesheets were incorrect based on observed work. However, they felt i was hostile to them as l was implementing the changes needed to pass the audits.
39.I found housekeeping to be a big issue and quarantine kept picking up on it. I found every request was met by an argument and why it could not be done or when it was last done did not change the fact that it was not done.
40.When I discussed issues arising from my inspections, the crew believed I was victimising them and stated that other captains never checked on this. When I brought up that the meetings and paperwork required were not completed prior to swings, i was accused of blaming other captains which was not the case.
41.I felt great resistance from the crew to adhere to project guidelines and for example the crew became upset when I would not let them throw food scraps over the side.
42.Arrangements were made for Mr Sweetman and Mr Frewin to attend the vessel regarding my concerns.
43. Luke Hoskins also did a great job following up on issues.
44.On 3 March 2015, Mr Sweetman informed me that they would be addressing my concerns and would be seeking improvements from the crew failing which there would be direct disciplinary action if they did not perform for the rest of the project.
45.On 5 March 2015, Mr Sweetman informed me that the crew on the vessel were happy with me as master and agreed that I was doing what was needed to get things done in the right direction and the respondent confirmed that they would work to restore more harmony.
46.However, as a result of the behaviour of the crew, I requested a transfer to the “Sea Swan" on 6 March 2015.
47.On 12 March 2015, I sent an email to the respondent following the meeting on the vessel in which I confirmed that we had in place systems to make sure the client's objectives were met and the STCW hours were kept rigidly, but the crew's attitude was deteriorating badly.
48.The applicant had previously been told by the respondent that an extra Integrated Rating was not required and that they and the client would not pay for the extra Integrated Rating but he simply would not accept it.
49.With regard to crew welfare, I informed the crew that l was happy to have a ship welfare committee meeting at any time as outlined in the MUA EBA. This meeting was to comprise of the Captain, Chief Officer, Chief Engineer and a crew representative.
50.The crew were told they could nominate anyone they wanted and the meeting could be held at any time of their choosing. The crew never responded with either a time or nominated a committee member.
Future Work
51.At no time, did i ever advise the applicant that he would not have a job with the respondent or in the industry.
52.In fact, the crew were informed that at the end of the project there was a possibility of a further two year contract to run supply between Barrow Island and Fremantle while a bigger vessel was built.
53.The upside was two years work for two of the four crews on the current project if the contract was awarded to the respondent but the downside was that two of the crews I would miss out on the work.
54.I stressed to the crew that to be one of the two crews who got the extension to the contract, we had to make sure that the "Sea Surfer” was the best vessel for the job.
55.The crew were told that if AMSA found any further non-conforming issues on the vessel, especially relating to hours of work and rest periods, then the “Sea Surfer” would be sent off from the coast of Western Australia and not allowed to return.
56.On 6 March 2015, l approached the respondent requesting a transfer to another vessel as I was finding it difficult attempting to make the changes on the "Sea Surfer” that were required by the project but not wanted by the crew.
57.I understand that the applicant resigned from his employment with the respondent on or about 4 March 2016.
58.I am also aware that the applicant had applied for a position as a heavy lift supervisor on Barrow Island before I joined the Sea Surfer or knew anything about him personally.
59.I am aware of this because the applicant had approached the Chief Officer and asked him to assist him to write a resume for him so he could apply for the job.
60.This indicated to me that the applicant was already planning to leave the “Sea Surfer” before I was even on the vessel for the swing in February/March 2015.
61.On 15 March 2015, the applicant left the vessel early due to a gum infection and his disembarkation was authorised by Peter Gorter. I was most concerned by Mr Gorter actions in this regard and informed him that the applicant leaving the vessel should have been processed through me as Captain.
Conclusion
62. At no time did I say to the applicant that he would lose his job.
63.I deny that I belittled the applicant or any crew members at any of the crew meetings or at all.
64.In fact as far as I can recall the only crew meeting that the applicant attended were those mentioned above. As he was the 12 midnight to 0400 hours watch keeper, he did not attend any morning meetings.
65.At no time during the entire swing did the applicant express any concern to me about the crew being pushed too hard, either personally or as the HSE representative.
66.The applicant was not happy with the changes to the rostered hours of duty but admitted that he had no specific problems with the way the vessel was being run.
67.I believe that if anyone was bullied or harassed during the swing in February/March 2015, it was me being bullied and harassed by the applicant.
68.I say this because he threatened me with intimidation from his outlawed motorcycle gang and the Masons organisation and as he said “he knew people to get things fixed his way”.
69.During the meetings, there are always minutes taken and I produce those minutes and attach them to this statement.
70.In or about June 2015, l became aware that the applicant had made a complaint of bullying and harassment against me. A subsequent internal investigation undertaken by AOS management found that no bullying occurred on the vessel by me.
71.I believe that Michael O’Brien's accusations that l bullied and harassed him in the workplace are baseless and defamatory towards me.
72.While on the ’’Sea Surfer” I only ever gave the applicant lawful instructions when it came to his work on the vessel and at no time, did I ever bully or harass him in any way.
73.I consider my instructions to the applicant and my conduct to have been legitimate management action and not bullying or harassment.
…
(emphasis added)
In Mellor v Australian Postal Corporation [2009] FCA 504; 108 ALD 159 (Mellor), the Federal Court held that the Tribunal erred in law by confusing the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material. In this regard, Bennett J said:
35.… Is the requirement of materiality directed to the cause of the aggravation or its effect? “Disease” means an ailment or aggravation of an ailment ‘that was contributed to in a material degree by the employee’s employment’. “Injury” means, relevantly, a disease or an aggravation of an injury other than a disease.… In Canute at [67], French and Stone JJ said that the term “material” ‘imposes an evaluative threshold below which a causal connection may be disregard’. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material (Sahu-Khan at [15]).
36.The Tribunal … appreciated that there was a requirement of materiality for a causal connection to be found. However, at [286]-[287], in considering the lumbar spine, it said that because there was no lasting effect of the aggravation and no underlying change in the condition, the contribution by the employment to the lower back conditions was not material. With respect to the thoracic spine, the Tribunal stated at [260] that it did not accept that the temporary increase in Mr Mellor’s symptoms represented an aggravation of his condition to a material degree. This was to confuse the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material…
…
47.The question of law that arose from the Tribunal decision was whether the requirement for materiality in the definition of disease applied to the causal link between employment and the disease or to the effect of the employment on the disease. The Tribunal accepted that the employment caused temporary pain from Mr Mellor’s constitutional thoracic and lumbar back conditions. In concluding that, because the pain was temporary, the requirement of materiality was not satisfied, the Tribunal erred in law in applying the test of materiality to the effect of the aggravation of the ailments.
(emphasis added)
“contributes to”
The meaning of “contributes to” has been judicially considered in a number of cases in the context of the definition of “disease” in former the s 4(1) of the SRC Act. This case law is instructive in interpreting the meaning of the phrase “contributes to” in the definition of “disease” in s 3 of the SRCA, for present purposes.
For example, in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; 38 ALJR 64 (Federal Broom), Windeyer J said (at 110 CLR 642):
When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be whether some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
(emphasis added)
Similarly, in Favelle Mort Ltd v Murray (1976) 133 CLR 580; 50 ALJR 509; 8 ALR 649 (Favelle Mort), Mason J said (at 598):
[T]he requirement suggested by the words “to which the employment was a contributing factor” is not as stringent as that suggested by the concept “arising out of” the employment … all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or proximate cause of the injury.
(emphasis added)
In Dunstan v Comcare [2006] FCA 1655; 93 ALD 390; 44 AAR 359 (Dunstan No 1), Mr Dunstan, the applicant, developed a depressive condition because of harassment by a fellow worker with whom he had earlier engaged in a sexual relationship. The Federal Court set aside the decision of the Tribunal because the Tribunal had adopted an approach to “contribution” which the Court found was wrong in law. The Court held that a state of affairs to which a worker was exposed in employment, and to which he would not otherwise have been exposed, may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation. In reaching this conclusion, the Court commented:
17.In addressing that question, the AAT after reviewing certain authorities said:
“The focus must be on the work of the employee – what he or she is required to do, or to be, and so forth, in the doing of her or his work.”
After discussing the expression “in a material degree”, the AAT referred to the relevant issue in terms similar to the above. It said:
“…the issue for consideration under the Act is whether what the employee in fact does in her or his employment contributes in a material way to the contracting of, acceleration of, or aggravation of the disease.”
The word “disease” in that passage should more accurately be the word “ailment”, if the definitions in the Act are to be used, because an ailment or condition only becomes a “disease” as defined once the causative element is found to exist. It is, however, clear enough what the AAT intended to say…
31.… In my view, the AAT – having in essence assumed the factual picture to be as Mr Dunstan asserted – directed itself that the harassing conduct of the female employee which caused Mr Dunstan’s depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression…
32.I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see general the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 312-323…
…
35. As I found that the AAT did not regard the state of affairs to which Mr Dunstan claimed to have been exposed in employment, and to which on his evidence he would not otherwise have been exposed, as capable in law of materially contributing to his condition, in my view its conclusion reflects an error of law in its approach. It did not, by reason of that error, assess whether his exposure to that state of affairs in fact materially contributed to that condition. The question of whether that claimed state of affairs in fact materially contributed to his condition involved the AAT making findings about the state of affairs.Also, the question of whether that state of affairs in fact materially contributed to his condition may have been informed by medical evidence supporting the necessary link, but as I have observed such evidence was not considered. It is, of course, a separate question as to whether such medical evidence is based upon a proper factual foundation, and is in proper form.
(emphasis added)
Subsequently, in Dunstan v Comcare [2011] FCAFC 108; 125 ALD 362 (Dunstan No 2), the Full Federal Court found that the Tribunal in 2008 (on remission from the Federal Court decision) had again erred in law by giving no reasons for a crucial finding that the incapacity ended when the appellant returned to work in December 1996. The Tribunal also found that the workplace was merely “the setting” for his injury. However, the Full Court held that the Tribunal had to consider relevant evidence that may have made the employment itself an operative factor in the onset of the applicant’s depression.
Similarly, in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 (Secretary v Comcare), the Federal Court held that some aspect of employment must make actual contribution to the ailment in question – an imagined contribution will not suffice. However, on the facts of the case, the Tribunal had found that there was an important contribution to the upper limb injury by the keyboard work actually undertaken by the employee.
Application to Mr O’Brien
Mr O’Brien has identified and testified to repeated conduct towards him by Captain Willett which was unreasonable: refer to paragraphs 23, 34, 39, 41 and 52-54 above.
It is clear from all of the evidence before the Tribunal that the trouble for Mr O’Brien started with the “cranes issue” at the first safety meeting with the crew on the third swing on 19 February 2015. All of the witnesses agree that Captain Willett spoke to Mr O’Brien alone on the bridge after that meeting. The difficulty is that only the Captain and Mr O’Brien can say what was said in that conversation. It is, from a factual perspective, a case of “he said, he said”. Consequently, in the end it is for the Tribunal to decide, based on the evidence before it, which version of the facts (and the truth) to believe. Mr O’Brien asserts that in that conversation he was intimidated and bullied by Captain Willett and threatened that he would no longer have a job: refer to paragraphs 52 and 54 above. Captain Willett denies this, contending that his conduct was reasonable and that their meeting ended amicably with a handshake: refer to paragraphs 58 - 60 above.
The issues between Captain Willett and Mr O’Brien regarding the safety meeting and the cranes, is later corroborated by the evidence of AOS witnesses Mr Hosking and Mr Sweetman. Read together, their evidence confirms that there was a heated exchange between Captain Willett and Mr O’Brien at the safety meeting, that they had a difference of opinions and a personality clash and that there was hostility between them (refer to paragraphs 62 and 64 above). In his Statement, Mr Hosking also said that he agreed with the matters which were raised by Mr O’Brien at the safety meeting on 19 February 2015: refer to paragraph 63 above.
In cross-examination, Captain Willett gave a piece of critical evidence about his management style. He said words to the effect that he would “praise in public and criticise in private”: refer to paragraph 61 above. It follows that there simply are no witnesses to what may have been said by Captain Willett to Mr O’Brien in private during his third swing of employment on board the Sea Surfer in the period 15 February 2015 to 15 March 2015. As such, the Tribunal is entitled to believe Mr O’Brien’s version of events that during his private meeting with Captain Willett on the bridge he was intimidated and threatened by Captain Willett, as he has described. However, the Tribunal’s acceptance of Mr O’Brien’s version of events over Captain Willet’s version of events is, as discussed below, ultimately founded on the contemporaneous documentary evidence which substantiates Mr O’Brien’s assertion that he was bullied by Captain Willet during his third swing of employment on the Sea Surfer.
The “Respondent’s Closing Submissions”, dated 9 May 2017, state:
Issues with the applicant’s evidence
51.The applicant has not called any other witnesses to support him. The respondent relies on Jones v Dunkel to urge the Tribunal to draw adverse inferences from the fact that the applicant has not called any witnesses to support the allegation that he was bullied. It is therefore an allegation only supported by his evidence. His evidence is self-serving.
52.His evidence is also less than credible. He conveniently remembered facts when it suited his evidence for example being telephoned at 5 o’clock one evening by Daniel Sweetman. He could not however remember other facts for example why he did not declare his prior significant history on his pre-employment medical examination application.
53.The applicant’s history is unreliable. it is fraught with inconsistencies, an alleged lack and unsubstantiated and at times clearly not credible account of not having the proper recollection. Accordingly, any medical reports based purely on his evidence such as Dr Fischer’s and Dr Babich’s are not valid and cannot be preferred over the reports of Dr Terace. The respondent relies on Pollock v Wellington in this regard.
Whilst it is true that Mr O’Brien did not call any witnesses in support of his application, the Tribunal does not draw any adverse inference from that in this case because, in the Tribunals view, Mr O’Brien’s evidence that he was bullied by Captain Willett during his third swing on-board the Sea Farer, in the period 15 February 2015 to 15 March 2015, is overwhelmingly supported by the following contemporaneous documentary evidence:
·Captain Willett’s email to Mr Sweetman, dated 1 March 2015: refer to paragraph 21 above;
·Mr O’Brien’s resignation email to Mr Sweetman, dated 4 March 2015: refer to paragraph 22 above;
·the letter from Second Officer, Mr Gorter, to Mr Sweetman in March 2015: refer to paragraph 30 above;
·the letter from the MUA representative on board the Sea Surfer to Captain Willett and AOS management in March 2015: refer to paragraph 31 above;
·the various emails from MUA organiser, Mr Gakis to Mr Sweetman: refer to paragraph 32 above;
·Mr O’Brien’s complaint to Second Officer , Mr Gorter, dated 15 March 2015; refer to paragraph 23 above;
·the First Certificate of Capacity, completed by Mr “O’Brien’s treating GP, Dr Babich, on 17 March 2017: refer to paragraphs 26 – 29 above;
·Mr O’Brien’s email to Mr Sweetman dated 30 March 2015: refer to paragraph 34 above;
·the letter from Mr Mullally, of Workclaims Australia, to Mr Sweetman, dated 1 May 2015: refer to paragraph 36 above;
·the Bullying Complaint, dated 19 June 2015: refer to paragraph 39 above;
·the Claim Form: refer to paragraph 40 above; and
·the Fair Work Commission Application: refer to paragraph 41 above.
AOS contends that the alleged bullying behaviour by Captain Willett towards Mr O’Brien was reasonable management action, carried out in a reasonable manner and Captain Willett denies that he ever bullied Mr O’Brien in the period 15 February to 15 March 2015, during Mr O’Brien’s third swing of employment on board the Sea Surfer. The Tribunal finds, with respect, that the contemporaneous documentary evidence tells a different story.
The evidence, including in particular, the email from Captain Willett to AOS management , dated 1 March 2015, concerning the crew of the Sea Surfer (including Mr O’Brien) in the relevant period clearly demonstrate that Captain Willett connected Mr O’Brien with what he perceived and described as work avoidance and vessel destabilisation and that he had enormous issues with the crew: refer to paragraph 21 above. Captain Willett said in his email to AOS management, dated 1 March 2015, that he felt like an unwelcome outsider trying to make change which is not wanted by the crew but is needed by the project: refer to paragraph 21 above. This evidence also corroborates what Mr O’Brien said at the safety meeting that Captain Willett put the Gorgon Project ahead of the crew. Captain Willett went on in the same email to state that he felt uncomfortable talking to the crew (this is two weeks into the third swing) as he felt that every day was a potential harassment case. Captain Willett further stated in the same email that he felt the crew needed a stronger Master with more experience than himself to get them into shape: refer to paragraph 21 above.
In cross-examination, Captain Willett confirmed that he viewed Mr O’Brien as a leader of the deck crew and again this corroborates Mr O’Brien’s evidence that he was singled out by Captain Willett for his unreasonable conduct: refer to paragraph 61 above.
Based on this evidence, the Tribunal finds that Captain Willett knew his management style was perceived as “unreasonable”. Otherwise, why would he use such language as “getting the crew into shape” and “expecting harassment cases”?: refer to paragraph 21 above.
The trail of documentary evidence from the AOS’s files regarding Mr O’Brien’s third swing on the Sea Surfer (from 15 February 2015 to 15 March 2015), with respect, destroys the credibility of Captain Willett. There is a sufficient documentary evidence to support the view that Mr O’Brien encountered a toxic work environment caused by the unreasonable conduct of Captain Willett and that his Bipolar Affective Disorder (i.e. “ailment”) or the “aggravation” of his Bipolar Affective Disorder was “contributed to in a material degree” by his employment with AOS in the period 15 February to 15 March 2015 as a result of that bullying conduct. Importantly, in reaching this conclusion, the Tribunal relies on the case law referred to in paragraphs 107 to 121 above concerning the meaning of the expression “contributed to in a material degree” in the context of former s 4(1) of the SRC Act.
More specifically, in an email from Second Officer, Mr Gorter, to Mr Sweetman, HR/IR Manager at AOS, dated about March 2015, Mr Gorter describes a negative working environment and Captain Willett’s attack on the deck crew (including Mr O’Brien) during the third swing: refer to paragraph 23 above.
The letter from the MUA representative on board the Sea Surfer to Captain Willett and AOS management, in March 2015, refers to threats to the crew’s jobs, intimidation, no duty of care, unnecessary work related pressures all inflicted upon the crew by the current Master (i.e. Captain Willett): refer to paragraph 31 above. As submitted by Mr O’Brien’s representative, this document is a distorted mirror image of how the Captain perceived his deck crew (in his words led by Mr O’Brien) as the laziest, least project and safety aware and most resistant to change of the 3 crews he sailed with: refer to paragraph 21 above.
In its response to the Fair Work Commission Application, AOS stated that it had come to the conclusion that there had been a personality clash on board the vessel stemming from a disagreement on Captain Willett’s management style and as a result they moved Captain Willett off the vessel to diffuse the situation: refer to paragraph 41 above (at [3.2] and [6.2]).
Furthermore from an early time on the swing Captain Willett wanted to leave the Sea Surfer. He also wanted some of the Integrated Ratings dismissed. He said in the email to AOS management, dated 1 March 2015, that he strongly wanted some of the Integrated Ratings (which included Mr O’Brien) “moved on” (i.e. dismissed): refer to paragraph 21 above. It would be a reasonable conclusion to draw that this included Mr O’Brien given that Captain Willett saw Mr O’Brien as a “leader” of the deck crew and that he considered that things had calmed a little after Mr O’Brien left the vessel: refer to paragraph 60 above.
In summary, the evidence which supports Mr O’Brien’s contention that he was subjected to unreasonable management conduct (i.e. bullying) at the hands of Captain Willett on his third swing on-board the Sea Surfer (from 15 February 2015 to 15 March 2015) is as follows:
· Mr O’Brien’s consistent evidence. both in his two witness statements in cross-examination as to the crane issue, hours of work, his role as a HSR, Captain Willett pushing the crew and Captain Willett’s general attitude to Mr O’Brien regarding his continuing employment;
· the evidence of Captain Willett in the witness box and his contemporaneous emails to management regarding Mr O’Brien, the crew, getting them into shape and potential harassment claims;
· clear admissions by Captain Willett that he saw the potential for harassment claims;
· clear admissions by Captain Willett in his oral evidence that he saw Mr O’Brien as the leader of the deck crew;
· extensive documentary evidence in AOS’s files as to the negative workplace culture created by the conduct of Captain Willett, the threats to jobs and intimidation which was no doubt directed at Mr O’Brien in his role as the leader of the deck crew;
· clear admissions by Captain Willett that he wanted to be moved off the Sea Surfer;
· the decision by Mr O’Brien to resign his employment on 4 March 2015 and the written reasons given at that time; and
· the decision by AOS to move Captain Willett off the Sea Surfer.
The Tribunal finds, consistent with this evidence, that Mr O’Brien was subjected to the conduct he complained of to AOS, both at the time of his resignation (on 4 March 2015) and as given in his evidence to the Tribunal both written and oral. In making that finding, the Tribunal refers with approval to the decision of the Federal Court in Wiegand v Comcare [2002] FCA 1464; 72 ALD 795 (Wiegand) wherein von Doussa J said:
31.In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. 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.
The fact that Mr O’Brien returned to the Sea Surfer and completed a fourth swing of employment with AOS, under a different Captain, does not affect the Tribunal’s findings, based on the evidence, that Mr O’Brien was bullied by Captain Willet during his third swing of employment with AOS and that his employment with AOS, during that third swing, “contributed in a material degree” to the “aggravation” of his Bipolar Affective Disorder (i.e. “ailment”).
The ultimate criticism of Mr O’Brien’s case by AOS is the email he sent at resignation on 4 March 2015 (refer to paragraph 22 above) and his representative’s letter to AOS, dated 1 May 2017 (refer to paragraph 35 above), and, in the case of the email resignation, the failure to make any allegations of bullying or that he was suffering an injury or that he was incapacitated for work and, in the case of his representative’s letter to AOS, the failure to make any allegations of bullying or that he was suffering an injury or that he was incapacitated for work.
That correspondence, when considered together with Mr O’Brien’s email to Mr Sweetman, dated 30 March 2015, leaves the Tribunal in no doubt as to the reasons behind Mr O’Brien’s departure from work and the conduct he had endured at the hands of Captain Willett. Mr O’Brien may not have actually used word “bullying”, until his representative wrote to Mr Sweetman on 1 May 2015, but the conduct described in all of the contemporaneous documentary evidence is conduct which, in the Tribunal’s mind, amounts to “bullying”.
Turning to the medical evidence, the two consultant psychiatrists, Dr Fischer and Dr Terace, agree that Mr O’Brien is suffering the Major Depressive Disorder in the context of a Bipolar Affective Disorder or Bipolar Affective Disorder, Depressed Phase or possibly a Schizoaffective Disorder, but, based on the predominant evidence, the primary diagnosis of Bipolar Affective Disorder is to be preferred: refer to paragraph 90 above.
Mr O’Brien consulted Dr Fischer for psychiatric care on 36 occasions, commencing 29 June 2015: refer to paragraphs 83 above. Dr Fischer, in his report dated 2 April 2017, reported that the workplace, as described by Mr O’Brien, did cause an “aggravation” of Mr O’Brien’s pre-existing Bipolar Affective Disorder and that the workplace events, in early 2015, did “contribute in a material degree” to the “aggravation” of Mr O’Brien’s pre-existing Bipolar Affective Disorder: refer to paragraph 83 above. The symptoms elicited by Dr Fischer, in his report dated 2 April 2017, were all corroborated by Mr O’Brien’s evidence.
Mr O’Brien’s treating general practitioner, Dr Babich, in his medical certificates also confirmed causation between the workplace and the onset of depression.[34]
[34] Exhibit 1.
Dr Terace, on the other hand, opined that the condition of Mr O’Brien came on “spontaneously”, because of the nature of the pre-existing condition. However, in cross-examination, he was not able to rule out that the workplace events in early 2015 had not caused or contributed to the onset of the Depressive Phase. Given that concession, and the Tribunal’s further comments about the role of Dr Terace below, it is the Tribunal’s view that the opinion of the treating psychiatrist Dr Fischer, as to causation of Mr O’Brien’s current Depressive Phase, ought be accepted and preferred to the opinion of Dr Terace.
There are other reasons too why the opinions of Dr Fischer should be preferred, in Mr O’Brien’s particular case, to that of Dr Terace.
The supplementary report of Dr Terace, dated 17 November 2016, like his earlier report, of even date, was compiled by Dr Terace after him being provided with a range of documents, the overwhelming majority of which were non-medical and, in particular, the witness statements of the lay witnesses for AOS: refer to paragraphs 87 above.
Dr Terace describes himself on his letterhead as an “Independent Medical Examiner” and, both at the hearing (on 11 April 2017), and, in a number of sections of his expert reports, he refers to the role of the legal process, as distinct from his opinion as a psychiatrist, as being determinative of the “truth”. As submitted by Mr O’Brien’s representative, despite these statements, he went on to find that Mr O’Brien was not a credible or reliable historian based primarily on the evidence of lay witnesses.
Dr Terace argued that he was impartial and an advocate for neither party but rather to the process and scientific “truth”[35]: refer to paragraphs 85 to 87 above. Yet, as submitted by Mr O’Brien’s representative, in the face of that statement, and his lengthy explanation to the Tribunal about him not usurping the Tribunal’s role, he wrote a supplementary report condemning Mr O’Brien’s claim for workers compensation based, not on a psychiatric medical opinion but, rather, on the opinion of a psychiatrist as to the truth of the disputed facts.
[35] Exhibit 7 at p 29 at [14.12].
As submitted by Mr O’Brien’s representative that, with respect, is not Dr Terace’s area of expertise. Further, as asserted by Mr O’Brien’s representative, Dr Terace’s opinion in his first report, dated 17 November 2016, is clearly also tainted by the same approach, where the insurance company has supplied him with many documents, the great majority of which are non-medical: refer to paragraphs 85 to 87 above.
Dr Terace repeatedly in his two reports, both dated 17 November 2017, refers to Mr O’Brien as not being a credible or reliable historian, such comment being based on his examination of the lay witness statements from AOS: refer to paragraphs 85 to 87 above. As contended by Mr O’Brien’s representative, this occurs all too frequently in Dr Terace’s reports and leads the Tribunal to be cautious in the way that Dr Terace has arrived at his conclusion, in the Joint Statement, about causation.
As submitted by Mr O’Brien’s representative, Dr Terace’s medical opinion appears to have been overtaken by his findings of fact and, therefore, he considers that the workplace had no part in the onset of Mr O’Brien’s Depressive Phase: refer to paragraphs 85 to 87 above.
The Tribunal finds, with the greatest respect, that, in Mr O’Brien’s case, Dr Terace has strayed from his area of expertise and his opinion as to causation ought be rejected. Instead, the Tribunal prefers and accepts the opinion of Mr O’Brien’s treating psychiatrist Dr Fischer regarding causation. Further, as noted by Mr O’Brien’s representative, Dr Babich has continued to make the connection between the workplace events and the aggravation of his Bipolar Affective Disorder, as has the treating psychiatrist Dr Fischer.
In conclusion, the Tribunal finds that there is a compelling evidence to support a finding that Mr O’Brien’s Bipolar Affective Disorder (i.e. ailment) or the “aggravation” of Mr O’Brien’s Bipolar Affective Disorder (i.e. “ailment”) was “contributed to in a material degree” by his third swing of employment by AOS as an Integrated Rating on board the Sea Surfer in the period 15 February 2015 to 15 March 2015 as a result of being bullied by Captain Willett: Canute; Sahu-Khan; Mellor; Federal Broom; Favell Mort; Dunstan No 1 ; Dunstan No 2; Secretary v Comcare.
(iii) Did Mr O’Brien’s Bipolar Affective Disorder (i.e. “ailment”) result in “incapacity for work”?
As previously stated, the expression “incapacity for work” is defined in s 8 of the SRCA as follows:
8 Incapacity for work
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.
Whilst the two consultant psychiatrists differ as to the extent of Mr O’Brien’s “incapacity” in recent times, the issue before the Tribunal is whether there is incapacity for work established. Applying s 8 of the SRCA, in its terms, it is not a question as to the “extent” of that incapacity. In Mr O’Brien’s case, the evidence clearly shows that “incapacity” has been established.
The Original Determination relied upon lack of incapacity as a ground of refusal: refer to paragraph 43 above. It was clearly wrong. In the First Certificate of Capacity (dated 17 March 2015), Dr Babich, a qualified medical practitioner, certified incapacity for work: refer to paragraph 28 above. See also Dr Babich’s letter to Zedmed Pty Ltd, dated 2 October 2016, as referred to in paragraph 79 above.
Dr Terace in his first report, dated 23 December 2015, describes some limitation and restrictions on work (refer to paragraph 85 above) and in the Joint Statement, he continues to place limitations and restrictions on capacity for work, so that identifies incapacity for work: refer to paragraph 90 above.
Dr Fischer, in the Joint Statement, is of the opinion that Mr O’Brien is totally incapacitated for work: refer to paragraph 90 above.
Consequently, all of the medical practitioners involved in this case have identified incapacity. Dr Fischer and Dr Babich regard it as total incapacity, while Dr Terace considers it to be partial.
In any event, in Mr O’Brien’s case “incapacity”, whether total or not, has been established on the evidence such that s 26 of the SRCA is triggered.
Section 10(7) of the SRCA – wilful and false representation
Section 10(7) of the SRCA provides:
(7)For the purposes of this Act, a disease suffered by an employee, or an aggravation of such a disease, is not taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment in the maritime industry, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
(emphasis added)
It is not in dispute that Mr O’Brien completed the Pre-Employment Questionnaire for the purposes of employment in the maritime industry and that the answers he provided with respect to his previous mental health are inaccurate: refer to paragraph 11 above. There can be no doubt that the earlier diagnosis of his psychiatric condition reflects his current condition.
For the s 10(7) defence to be triggered the representation must not only be “false” but it must be made “wilfully”.
Mr O’Brien’s evidence is that he has no independent recollection of the ECT treatment he had in 2005 and 2007 at the Perth Clinic or memory of the state of his health before the treatment.[36]
[36] Exhibit 2 at [6].
Further, Dr Babich, a qualified medical practitioner, has reported that Mr O’Brien’s memory may well have been affected by the ECT treatment in 2007: refer to paragraph 78 above. Dr Babich also gave evidence in the hearing that the applicant had memory loss since the ECT. When cross-examined about an entry in his notes of 27 November 2014, Dr Babich said that Mr O’Brien could not recall what had gone on in the past and how ill he had been.
Dr Babich’s medical opinion corroborates Mr O’Brien’s testimony that he does not remember his mental health condition prior to the ECT treatment. Dr Babich has subsequently reported to Zedmed Pty Ltd that Mr O’Brien suffered memory loss following the ECT treatment: refer to paragraph 79 above.
In Kennedy and Comcare [2015] AATA 334, Deputy President Hack SC found, in the context of s 7(7) of the SRC Act, that for the representation to be wilful and false, the applicant must know it to be false. More specifically, he said:
41.Mr Gollan, counsel for Comcare, accepts that it is not enough to show more falsity, Comcare must also show that one, at least, of the false representations was made by Mr Kennedy knowing it to have been false. In Comcare v Porter Jenkinson J, after a reference to the judgement of Barwick CJ in Iannella v French said this of the requirement of “wilful” in s 7(7):
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase “false representation” exposes the legislature’s attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word “false”, and the representor’s knowledge of the falsity, commonly signified in civil proceedings by the word “fraudulent”. (Halsbury’s Laws of England (4th ed, 1980), Vol 31, pars 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-57.) The clause “if the employee has ... made a ... false representation” may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of “wilful” in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease – a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
(emphasis added)
Mr O’Brien’s position is that he could not have formed a “belief” at all as he had no memory of his past mental health state following ECT in 2007. Based on the evidence of Dr Babich, set out above, the Tribunal accepts this submission. As contended by Mr O’Brien’s representative, it does not assist AOS’s case to assert that Mr O’Brien was able to remember his past history when he completed the Claim Form: refer to paragraph 39 above. When he did that he had the assistance of his legal representative who was by then, in possession of all of his past medical history.[37]
[37] Exhibit 2 at [19].
In relation to the Pre-Employment Questionnaire, Mr O’Brien must be proven to have had no “belief” that the boxes he ticked on the form were not true answers. The medical evidence of Dr Babich overwhelmingly supports the impaired memory of Mr O’Brien following the ECT treatment in 2007. The evidence of Dr Babich in this regard remains unchallenged by AOS. If Mr O’Brien has an impaired memory, then it can hardly be said that he completed the history knowing it to be false. Consequently, the s10 (7) defence must fail.
DECISION
For the above reasons, the Tribunal sets aside the Reconsideration Determination and, in substitution therefor, decides that AOS is liable to pay Mr O’Brien compensation under s 26 of the SRCA for a psychological injury (Bipolar Affective Disorder) sustained by him during his third swing of employment for AOS as an Integrated Rating on board the vessel Sea Surfer in the period 15 February 2015 to 15 March 2015.
I certify that the preceding 171 (one hundred and seventy one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
........................................................................
Administrative Assistant
Dated: 6 June 2017
Dates of hearing: 10-13 April 2017 Date final submissions received:
19 May 2017 Representative for the Applicant: Mr P Mullally Solicitors for the Applicant:
Workclaims Australia
Representative for the
Respondent:Ms R Aria-Retnam
Solicitors for the Respondent:
Sparke Helmore Lawyers
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