O'Donohue and Comcare
[2000] AATA 664
•7 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 664
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1997/495
GENERAL ADMINISTRATIVE DIVISION )
Re Terence O'Donohue
Applicant
And Comcare
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member Mr J Barber, Member
Date 7 August 2000
PlaceSydney
Decision The Tribunal – 1. Sets aside the reviewable decision dated 7 February 1997. 2. In substitution therefor determines: (a) that the Applicant suffers from an injury, being a depressive condition, pursuant to s4(1) of the Safety, Rehabilitation and Compensation Act 1988; (b) that because of the Applicant's depressive condition he has been unfit for work at all relevant times and therefore he is entitled to weekly payments of compensation in respect the depressive condition at all relevant times. 3. Orders that the Respondent pay the Applicants costs of these proceedings in accordance with the Tribunal's General Practice direction, as agreed by the parties or taxed by the Registrar, but excluding any and all costs of and incidental to Directions Hearings conducted on 17 December 1998, 28 January 1999 and 15 September 1999.
..............................................
M T Lewis
Presiding Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N1997/495 )
GENERAL ADMINISTRATIVE DIVISION )Re: Terence O'Donohue
Applicant
And: Comcare
Respondent
CORRIGENDUM TO DECISION
Tribunal : Mrs M T Lewis, Senior Member
Dr M E C Thorpe, Member
Mr J Barber, Member
Date : 28 August 2000
Place : Sydney
Being satisfied that there is an obvious error in the text of the decision in this matter, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 I direct the Registrar of the Tribunal to alter the text of the decision in accordance with the following direction, namely:
1.In line 4 of paragraph 3 under the heading "Decision", the number "17" is omitted and the number "7" inserted in its place.
2.In line 6 of paragraph 315 under the heading "Reasons for Decision", the number "17" is omitted and the number "7" inserted in its place.
............................................................
M T LEWIS
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – Director of Court Counselling – Family Court of Australia - whether depressive illness caused by workload and stress - whether reasonable disciplinary action – whether forced to take voluntary redundancy
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 19
Public Service Act 1922 ss 61(2), 62
Public Service Regulations 8A(b)
Australian Telecommunications Commission v Tzikas (1986) 5 AAR 173
Casarotto v Australian Postal Corporation (1989) 17 ALD 321
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Re Choo and Comcare (1996) 39 ALD 399
Repatriation Commission v Webb (1987) 13 ALD 421
Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517
Re Sheridan and Comcare [1999] AATA 767 (15 October 1999)
REASONS FOR DECISION
7 August 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member Mr J Barber, Member
This is a review of a reconsideration decision of a Delegate of Comcare ("the Respondent") dated 7 February 1997 which affirmed an earlier determination dated 25 October 1996, to refuse a claim made by Terence Markham O'Donohue ("the Applicant") for compensation in respect of major depression.
The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The Tribunal excluded from the record documents marked T140, T152, T167, T169, T172 and T206 in accordance with the Parliamentary Privileges Act 1987.
The following documents were tendered on behalf of the Applicant:
Medical reports of Dr M Dent, psychiatrist, dated 18 December 1997 and 23 November 1999 (exhibit A);
Documents produced by Dr Lambeth, psychiatrist, in response to a summons, including letter dated 22 December 1997 (exhibit B);
Statement of Sr Carmel Hanson RSJ dated 21 October 1998, and letter dated 16 February 1996 and submission on the operation of the Newcastle Family Court Counselling Service (exhibit C);
Copy of claim for compensation for "stress disorder" for period 20 December 1993 to 7 January 1994 (exhibit D);
Statement of Kay O'Donohue dated 22 October 1998 (exhibit E);
Statement of David O'Neill dated 2 December 1998 (exhibit F);
Statement of Susan Scobie dated 22 October 1998 (exhibit G);
Report of Professor C Tennant, psychiatrist, dated 20 November 1998 with letter of request from Respondent dated 7 September 1998 (exhibit H);
Statement of Heather Wingate dated 22 October 1998 with addendum (exhibit J);
Memo to Regional Manager Family Court from Regional Director Family Court Counselling dated 10 May 1994 (exhibit K);
Security Incident Report dated 31 October 1994 (exhibit L);
Letter from "Mr I" to Mr Leonard Glare, Chief Executive Officer, Family Court, dated 19 December 1994 (exhibit M);
Reply to Goodsell Report by Susanne Scobie dated 5 July 1994 (exhibit N);
Reply to Goodsell Report by Heather Wingate dated 12 July 1994 (exhibit O);
Extract from Evaluation of the Implementation of the Recommendations of the Working Party on the Review of the Family Court (Buckley Report) by Peter Coaldrake Report, p35 (exhibit P).
The following documents were tendered on behalf of the Respondent:
Leave records of the Applicant (exhibit 1);
Documents produced by the NSW Bar Association in response to a summons (exhibit 2);
Outline of NSW Bar Association Practice Course 1/1997 (exhibit 3);
Minute from Applicant signed by Ms Wingate on his behalf, to Mr L Glare, Chief Executive Officer ("CEO"), Family Court, dated 28 February 1994 (exhibit 4);
Documents produced by Dr Lambert, general medical practitioner, in response to summons (exhibit 5);
Reports of Dr R D Lewin, psychiatrist, dated 26 November 1997 and 20 November 1998 (exhibit 6);
Statement of Jennifer Cooke, Northern Area Manager, Family Court, dated 7 October 1999 (exhibit 7);
Report by Norman Goodsell of visit to Newcastle Registry (undated) (exhibit 8);
Statement of Dr Carole Brown dated 7 October 1999 (exhibit 9);
Report of formal counselling of the Applicant by Dr Brown dated 31 August 1993 (exhibit 10);
Statement of Jennifer Rimmer dated 27 January 1999 and Ms Rimmer's report as Authorised Officer to the CEO (exhibit 11);
Statement of Peter McManus dated 9 February 1999 and Report of an Inquiry into Certain Charges against Terence Markham O'Donohue dated 15 September 1995 (exhibit 12);
Statement of Len Glare, CEO, dated 6 October 1999, with attachments (exhibit 13).
The Applicant gave oral evidence at the hearing. Sr Carmel Hanson, RSJ; Susanne Scobie; Kay O'Donohue; David O'Neill; Heather Wingate; and Dr Dent were called to give evidence on behalf of the Applicant. Dr Lambert and Dr Lambeth gave evidence by telephone. Jennifer Cooke, Dr Carole Brown, Jennifer Rimmer, Peter McManus, Leonard Glare and Dr Lewin were called by the Respondent to give evidence. The Tribunal was advised that Ms Klarkowski has been overseas since mid 1998 and she was not available to give evidence.
The Tribunal ordered, pursuant to s35(2)(b) of the AAT Act, that the name of clients of the Family Court implicated in these proceedings not be published and that the clients be referred to here as "Mr and Mrs I".
backgroundThe Applicant worked in various Public Service organisations over a period of approximately 33 years. In 1980 he commenced employment with the Family Court, Newcastle Registry, as the Director of Court Counselling and continued in this position until July 1996, when his employment was terminated following his acceptance of a voluntary redundancy. The Applicant contends that the circumstances of his employment forced him to take the redundancy, that he suffers from a work-related depressive illness and that he is unfit for any work. He also contends that the disciplinary action in which he was involved prior to his ceasing work at the Family Court was not reasonable.
The Applicant claimed and was paid compensation for work-related stress in December 1993 and January 1994. The circumstances relating to that period off work provide background to the claim he lodged dated 15 December 1995 (T214) for major depression. That claim was refused, and that is the subject of this review. The Applicant's case was that during his 16 years' employment at the Family Court he experienced a wide variety of stresses, including a very high workload, significant conflict with senior management, disciplinary proceedings relating to an incident with a client, "Mr I", where the Court's domestic violence policy was not followed, and ultimately the acceptance of a "voluntary redundancy" offer by the Court.
The evidence before the Tribunal is complex and involves many issues. The evidence will be considered more or less chronologically, as this enables the Tribunal to consider the forces operating on the Applicant and the impact on him at various stages during the relevant period.
legislationSection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") provides –
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
"Injury" is defined in s4(1), to mean –
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Where a person is found to have a compensable injury, s19 provides for the payment of compensation to a person in respect of injuries resulting in incapacity. Section 19 provides, insofar as is relevant –
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE – AE
where:
NWE is the amount of the employee's normal weekly earnings; andAE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week – of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
(3A) If, as a result of the incapacity;
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) the pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment – the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…..
background to the claim of december 1995
The Applicant was born on 27 March 1941. He holds a Bachelor of Arts Degree with a major in psychology. Since 1964 the Applicant has had extensive experience as a psychologist in the State and Commonwealth Public Service. Having gained legal qualifications subsequently, he worked for a period as a legal officer with the Australian Legal Aid Office as it then was and as a Senior Legal Officer with GIO, before returning to practice as a psychologist. He commenced employment with the Family Court in 1980 as the Director of Court Counselling in Newcastle.
As the Director of Court Counselling the Applicant carried a full counselling caseload in addition to supervising and coordinating the work of the Court Counselling Service in Newcastle. He said he worked 11 or 12 hours a day and on the weekends. His wife described him in her evidence as a hard-working, committed person who was a "workaholic" in the period 1980 to 1986.
The Applicant noted that in approximately 1985, casework supervisor positions were created in the larger registries to assist the Directors, but although the Newcastle Registry expanded to nine counsellors no casework supervisor position was created there. Instead the Applicant continued professional supervision of the counselling staff while the work of the registry doubled and trebled and supervision became more intensive. Moreover, there were never enough counsellors for the increasing workload. He made numerous formal representations over the years, but the problem of staff shortage was never addressed. He said he worked very long hours to try to compensate for the staff shortages "and managerial inadequacy". He considered that the comparative statistics of different registries since 1980 "speak for themselves". He believed he had a duty to protect the counsellors under his supervision from being overworked, and he thought he succeeded in doing that. However, "somebody had to be sacrificed and it was me".
Sr Hanson was placed with the Applicant as a psychology student in 1988. In her oral evidence to the Tribunal, she described the Applicant in 1988 and 1989 as –
…a gentle man. He had a good sense of humour. He was very outgoing, he was very gracious and welcoming - qualities I appreciated as a student in his department. I found that he was a workaholic; really in a sense he spent a lot of time and was very conscientious, perhaps too conscientious. It appeared to me, coming from the perspective of a student who was being supervised in terms of the hours that I was spending, that he spent a lot of time at the Court, and he was - I think - my observation would be that he was very interested in his staff. He seemed to know about their families and they seemed to come to him with various problems that were not really related to the Court work. And he was always very open to that.
She found him very thorough, both as a supervisor and a counsellor. She said that as a student he was insistent that she was aware of the details of Family Court policy. Sr Hanson had professional supervision from the Applicant from 1990 to 1996 while she worked as a psychologist and co-ordinator at the House of Hospitality for the homeless in Newcastle. She was also a friend of Mrs O'Donohue and of the Applicant.
Ms Heather Wingate commenced work as a counsellor at the Court in Newcastle in 1980 at about the time the Applicant had been appointed as Director of Court Counselling. She described a "fairly heavy workload" in the Newcastle Registry in the period 1980-86.
Ms Jennifer Cooke, a qualified social worker, was the Regional Director of Court Counselling for the eastern region from October 1991 to July 1996. That position was at the same level as that occupied by the Applicant. During this period she had regular meetings with the Directors of Court Counselling and she visited the Newcastle Registry monthly. She acknowledged that resources was an issue that the Applicant raised regularly. She had some issues about the Applicant's workload management. However she did not have direct line responsibility for the Applicant, and resource allocation was the responsibility of Mr Foster, the Registry Manager. Ms Cooke accepted that the workload was heavy, but it was not disproportionate in relation to other Registries. She said that she had no difficulties in her relationship with the Applicant when she first became the Regional Director of Court Counselling. They began when she commented or questioned him in relation to any aspect of the operation of the Newcastle Counselling Service. She found that he wanted to put his point of view and was "not very accepting" of her views.
Dr Brown, the Principal Director of Court Counselling, met the Applicant in 1980 when she worked as a counsellor in the Newcastle Registry from 1980 to 1986 and from 1987 to 1988. She then became Director of Court Counselling at the Sydney Registry from April 1988 to February 1990. Her only contact with the Applicant at this time was at meetings. From 1990 to September 1998 she was the Principal Director of Court Counselling, responsible for the professional issues in relation to the Court Counselling Services within the Family Court. She said that this rarely brought her into contact with the Applicant because the Regional Director of Court Counselling, Ms Cooke, was structurally located between the Applicant and herself.
Referring to her experience of the Applicant as her supervisor, she said –
I think we worked hard but we didn't overwork and I think that one thing I would compliment Mr O'Donohue for was the fact that he put in place a work load system which did ensure that his counsellors weren't overworked.
In her statement (exhibit 9) Dr Brown referred to the workload at the Newcastle Registry. She raised concerns about the statistics provided by the Applicant for the period over which they were collated, and noted that the Applicant refused to give her access to the raw data on which the statistics were based. She noted that the statistics covered a six month period and often there can be fluctuations from one part of the year to the next. For this reason it is better to consider the whole year. She also noted that the number of interviews conducted needs to be seen in the context of how those interviews are conducted. A lot of short interviews do not necessarily constitute a lot of time spent. She said the normal practice was to have interviews of 1 to 2 hours. When she worked with the Applicant at the Newcastle Registry she observed that he often conducted a number of short interviews and thus his total face to face contact would not necessarily be greater than somebody conducting a much longer interview. She disagreed that when she worked at the Newcastle Registry the Applicant had a heavier workload than the counsellors. She considered that they worked as a team; they worked quite hard but were not overworked.
In his evidence to the Tribunal the Applicant defended his submissions and their statistical underpinning. He noted that he had used similar figures for each registry with which he made comparison and that the figures showed that Newcastle was carrying an enormous workload compared to other registries. The Applicant disagreed that he had been unwilling to provide Dr Brown with access to the raw data. He said he conducted his interviews "professionally and ethically", and these included some longer sessions and some shorter sessions. He said that he saw more clients. He disagreed with Dr Brown's allegation that in 1995 the average counselling session was between one to two hours and that his interviews were between five minutes to half an hour, and noted the shorter nature of interviews for the category of clients representing the major part of his caseload. He agreed that he regularly placed the issue of Newcastle Registry resources on the agendas of meetings of Directors of Court Counselling, and noted that they were rejected rather than "consistently refuted". The Applicant noted that his views were rejected within the region, and believed that was because if he gained staff another registry in the region would lose them.
Mrs O'Donohue said in evidence that in the period 1986 to 1990 the Applicant:
became very stressed, more and more work orientated, starting earlier, finishing later, not going on holidays. … his personality changed. He began to drop his social sporting activities … he became irritable and developed a bad temper at home…
Mrs O'Donohue noted that between 1990 and 1992 "things escalated". She understood that the Applicant felt "thwarted" and "stymied" by unnecessary and overly complex control, and he considered that the Court had changed. She noticed that he was becoming more despondent.
Sr Hanson observed that the Applicant had a personality change over the years since 1988 until he left the Court. He presented as being burdened and under pressure and became more and more preoccupied and increasingly more stressed. During the early 1990's she noted an increase in the staff of the Counselling Service. She also noted that the Applicant had become very busy and worked excessively long hours.
The Applicant recalled that in January 1993 the Court's family violence policy came into operation (ST42). The counselling service was then required to implement Court policy to conduct separate interviews on separate days for women who had experienced domestic violence or who had been granted domestic violence Orders, except where those Orders specifically allowed for joint counselling. The Applicant noted that there was a strong "feminist" lobby from local community groups about domestic violence issues, and those groups also held negative attitudes towards the Court's female judge and a Local Court female Magistrate. Additionally, he noted that the Lone Father's Group was against the Court Counselling Service.
Ms Wingate considered that the domestic violence policy was imposed "as a blanket policy", leaving no room for professional judgement in particular cases. She said that relationships with various domestic violence lobby groups became strained, arising from the Court's policy that in effect appeared to equate verbal arguments with physical violence. She considered that the complaints made by these groups were used by senior management to attack the Newcastle Court Counselling Service. She said that the Applicant took the view that the Court policy had to be followed, but she continued to raise the problems at meetings as she considered it was causing problems for the Court.
About December 1992, whilst the Applicant was attending a meeting in Sydney, the Court Counsellors in Newcastle met with people from various government and voluntary agencies about domestic violence. He said that subsequently, two "leading feminists" made complaints about the Court Counsellors arising out of that meeting. The Tribunal notes a letter from Jane Bridge, from the NSW Office of the Status of Women, dated 10 March 1993 (T6) to Ms Cooke, complaining that she had received reports from persons who had attended that meeting that "counsellors displayed inappropriate, and even hostile attitudes towards women who are victims of domestic violence". Ms Cooke said that her concerns about the Applicant had developed prior to this meeting. Sr Hanson also attended that meeting and considered it to be a "Court bashing exercise". In her view, the chairperson, Professor Graycar, was very negative. Sr Hanson made written submissions in response to the findings of that meeting (exhibit C) and considered that the findings recorded did not represent the meeting accurately.
Ms Wingate also attended the meeting that she understood was called to explain the Court's domestic violence policy to outside agencies. She said she and her colleagues were "flabbergasted by the amount of hostility" they encountered. She said that following that meeting the Applicant tried to deflect some of the criticism. She said that he was angry with Ms Cooke for investigating the complaint and in turn that led to his harassment. She noticed the Applicant becoming more anxious.
The meeting, about which Sr Hanson and Ms Wingate gave evidence, was also attended by Ms Jennifer Rimmer, who at that time was the Registrar at Parramatta. She made a joint presentation at that meeting with Professor Graycar. She said that in response to a question from the floor Ms Wingate responded to the effect; "Well, because of the Chief Justice's domestic violence policy we now can't see people together so we can't settle matters". Ms Rimmer said that she had to explain and defend the policy. She was aware that it was a highly topical issue for the counsellors and they were involved in "internal debates" about whether the policy was correct or not. However she considered that at a public forum, where there were legal practitioners and others who were not involved with the Court, it was inappropriate to engage in public debate. She said that Professor Graycar asked her to make a complaint about the incident. She referred the complaint to Ms Cooke but said she did not ask her to investigate it and could not recall whether it was investigated. She could not recall that Ms Cooke sent her a letter (T93) advising her of her action. She did not recall having discussed the complaint with anyone and she did not associate the Applicant with the complaint.
The Applicant noted that Ms Cooke investigated those complaints without the knowledge of the Applicant or the other Counsellors, despite the Applicant acting as Regional Director of Court Counselling for part of that time. The Applicant said that this action –
.. had a very debilitating effect on me and the Court Counsellors, being investigated secretively and furtively by elements of so-called senior management without our knowledge, without the opportunity to be able to say anything, but that was the typical modus operandi of that Family Court management over the years.
….
… structurally and culturally the management of the Court in the early nineties was simply a very dysfunctional one and that was because of the structure, the way it was structured and it was because of the fact that people were introduced into the structure at the same level of people in the registries and there became enormous conflict over role and functions, and of course there were so many committees created in the Family Court that every time you turned around you'd be asked to attend a committee or sit on a committee and of course that committee process has a place, it just became, it just grew like topsy, and it became quite impossible. The internal conflict and turmoil within the Court became so strong and so bitter that morale, I think work performance … of people within the Court – the judges, the registrars, the counsellors, the directors – suffered.
On 8 July 1993 the Applicant wrote to the CEO about "a crisis of confidence felt by many in Newcastle Registry" (T10). Sr Hanson considered that this incident "had a profound effect" on the Applicant, placing him under considerable stress and making him depressed. She acknowledged that he had been depressed before this incident, and she also noted that her observations of the Applicant were as a 'friend' but she said that she also used her professional knowledge as a psychologist in her observation.
Ms Cooke said that she obtained the names of the people who had attended the meeting and sought their views. She believed it was appropriate to do this before discussing the issue with the counsellors or the Applicant. The Applicant said the way in which Ms Cooke investigated the matters was unprofessional and unethical, according to ethical guidelines held by a number of professional associations, including the Australian Psychological Society, and that her actions contradicted the principles of natural justice.
Ms Scobie, an Administrative Officer in the Counselling Section since 1989, said that the counsellors were engaging amongst themselves in an intellectual debate about the domestic violence policy. Tension gradually built up and approximately six months after the public meeting it became obvious that there was enormous division. She considered that tension developed because it seemed if one took "a point of view in the debate then you were inherently wrong or you were inherently being disobedient rather than engaging in the intellectual exercise". She observed the Applicant and the other counsellors becoming very tense and angry.
Ms Scobie said that debate had been "squashed right from the word go". It was frowned upon for a counsellor to say anything outside the "official line". She thought this restriction came from the management team. She understood that one counsellor in particular considered that it was important to debate the issue within the Counselling Section, but instead "they were being made a pariah if they did bring it up".
Ms Scobie said that the work environment became increasingly tense during the second half of 1993. The counsellors learned that they had been investigated because of complaints arising from the meeting in December 1992. She understood that the counsellors were disconcerted as they were unaware that a complaint had been made which was then investigated in their absence. Prior to this period Ms Scobie considered that the Counselling Section had been "a fairly tight, happy little unit". As an administrative officer she made bookings and co-ordinated and organised counselling sessions. She understood that the counsellors were adhering to the policy, but some wanted to have the intellectual debate. She considered that this position continued until she left the Counselling Section about 1995. She thought that the Applicant had been on leave when she left the Section.
Ultimately the domestic violence debate became secondary to what Ms Scobie perceived as "quite a witch hunt" against the Applicant. She agreed that within the Newcastle Registry a "them and us mentality" developed while the Applicant was still the Director of the unit. She said that the Applicant and others had expressed that view.
A meeting was held with the Applicant, the Counsellors, Ms Cooke and Dr Brown, to try to resolve this issue. Ms Cooke agreed that it became a situation of tension between her and the other counsellors. She said that the meeting was tense. She did not recall seeing a copy of the letter written collectively by the counsellors to the CEO (T14). In that letter they noted that they had received a copy of Ms Bridge's letter of complaint from a Judge at the Court. They expressed concern that arising from the meeting it appeared likely to them that management would proceed with formal counselling of the Applicant. The Applicant referred to that meeting in his evidence. He said senior management took every opportunity to "attack" him because he had tried to defend his staff from "a secretive and furtive investigation of them and unethical and unprofessional conduct on the part of the regional director". He felt "under siege", he was extremely worried, and felt "it didn't matter how well I was doing my job and it had been generally recognised amongst my own profession, amongst – by solicitors, by judges, that I had carried out my duties competently and conscientiously".
Dr Brown reflected that the implementation of the Court's domestic violence policy was a sensitive issue. She said that after the Goodsell report she attended the Newcastle Registry with Ms Cooke to try to get the Applicant and Counsellors "to come into line" with the rest of the Court in implementing that policy. The Applicant assured them that they were following the Court's family violence policy, but given the level of complaints that she received and the attitude she observed of some counsellors she was not confident that that was the case.
Dr Brown had not attended the meeting on 3 December 1992. She became aware that there was a complaint just before she went on leave, but Ms Cooke was left to deal with it while acting in her position. Dr Brown returned from leave in April but she did respond to letters whilst away. After her return she held a meeting with Ms Cooke and the Counsellors. She considered there was a problem in the working relationship between the Applicant and Ms Cooke, and indeed this was the impetus for a meeting between Dr Brown and the Applicant on 10 August 1993. She was concerned –
not that he wasn't supporting us but he wasn't supporting the approach in relation to the domestic violence policy and the fact that Ms Cooke was wanting to do something about it. Also, I would say I was concerned that he wasn't supporting us in going into that meeting as a united group as manager because he was a senior manager … of the court counselling service and I would have expected him to support his area or regional director … and myself in terms of dealing with … a very sensitive issue. There was a Joint Select Committee who made comment about the way we dealt with these cases, as well as all of these groups that were continuously writing to us and complaining to us. So, this was a serious matter and we'd basically given undertakings to the Nekeyan committee that we were putting in place a substantial domestic violence policy, which would address some of their concerns. So, it wasn't just a small thing we're talking about here, it was a very serious thing.
Dr Brown considered that the Goodsell Report reflected the position that there was a lot more work to be done to convert the Court's policy into a reality.
Mr Glare said in evidence that he never sought to take any formal disciplinary action against the Applicant in relation to his work performance. He said that in his view it would not have been appropriate. Dr Brown said that Mr Glare requested the formal, non-disciplinary counselling session that took place on 10 August 1993. Mr Foster was Dr Brown's witness, and Ms Wingate was the Applicant's witness (ST3). At that meeting she raised issues in relation to the Applicant's relationship with Ms Cooke. Her report of that meeting (exhibit 10) was delivered to the Applicant but he did not sign it. Dr Brown did not recall that the relationship between the Applicant and Ms Cooke improved. She considered that the Applicant would not acknowledge that there was a problem. There was no follow up of the formal counselling. Ms Cooke had wanted Mr Foster to be present at a discussion between her and the Applicant and she understood that the Applicant had refused (ST5). No move was made to institute disciplinary proceedings, as Dr Brown did not have any direct line of control.
Ms Cooke understood that there was a counselling session on 10 August 1993 between Dr Brown and the Applicant, at which she was not present. At that stage she had a problem with the Applicant in relation to how issues to do with domestic violence were being managed in the Newcastle Registry. She also believed that the Applicant had difficulties accepting her role as Regional Director.
Ms Scobie recalled an incident regarding a pamphlet entitled "Hard Truths About Day Care" (T46). She said that the Applicant asked her to remove a particular pamphlet and showed her the correspondence requesting that it be removed from circulation, the date of which she could not recall. Until then they had been part of a wider group of pamphlets that were consistently photocopied and put on the publicly accessible pamphlet stand. She was the person who ensured that the stand was stocked. She said that she removed the pamphlet from the stand and stocks, and remembered checking that none were there. Subsequently Ms Cooke visited the Counselling Section and claimed that the pamphlet continued to be displayed. Ms Scobie was present on that day, she had a clear view of the pamphlet stand and said that she did not recall having seen the pamphlet there at any time after she had removed them.
Ms Cooke said that on 9 May 1994 she was in the waiting room of the Newcastle Registry Counselling Service waiting to see the Applicant to conduct a performance appraisal. She noted that a pamphlet about day care was on display that she understood the Registry Manager had directed two years previously to be removed. She wrote a memo to the Registry Manager about this (T46). The Tribunal notes that the Applicant subsequently advised the Registry Manager (T48) that no such pamphlets had been displayed for two years.
Ms Scobie said that she found herself in a difficult position as a result of pressure and being seen to be aligned with the Applicant. She said -
… a lot of it was just perception and maybe some paranoia and the stresses, I mean the stresses - it was a stressful job anyway because you're dealing in an emotive area and then you've got internally a lot of stress building from what was once a pretty happy easy little unit so I felt that I was sort of, in some respects, between a rock and a hard place, if you like, that analogy, because I was damned if I did and I was damned if I didn't. Terry O'Donohue was my supervisor, I personally found him a very good supervisor. So I personally enjoyed him as my boss, I felt a great deal of loyalty to him, I thought he was a very good boss. I mean, that's not to say we didn't have our moments, we certainly did, but I was certainly able to discuss things with him and I was certainly able to institute change when I thought change needed to happen. By the same token - no, we could communicate. So when all the stress and the tension started to build and get worse and worse, of course I'd have my boss in an agitated state and very stressful, in a very stressed state, very concerned that everything we did was totally right because it didn't matter, if we did something wrong we were going to be in trouble. It was a real dammed if you do, dammed if you don't feeling and I mean, when he left and I was still in that unit, the next person who came … was acting in his job who was then my supervisor, there were jobs I did that weren't really in my duty statement but I did them. Like I prepared … I'd do the monthly stats and organise all of those things and there was a report. Normally it wasn't in my duty statement to write the report but I used to always do the skeleton report … give it to my supervisor to add or subtract to do something to and the woman who came after that … the first time I did a report, she started getting stuck into me … it was a real attack and I said, hold on … I don't have to do this, I've done this to try and help you and she sort of said, oh, oh, I'm sorry, but it was, to me it was a real unwarranted attack and I thought well, you've been given - someone said something to you because it was, it was again this finding something wrong and picking a hole in it yet it was just a straight forward report reporting what … average people had done that month, what the stats. were that month, very straightforward stuff, nothing… controversial at all but suddenly I was being picked, picked at and I thought well that's really very interesting. Why would someone suddenly do that to me when in fact it wasn't even, it was their job. All I was doing was giving them the rough draft if you like for them to add or to - so I got a definite impression from that, it was not long after that that I left the unit. I thought… I'm a marked woman. It doesn't matter what I do, I'm a marked woman in that organisation and I know it regardless so that's why I'm here to give evidence today. It doesn't make any difference whether I hide behind a closed door and try not to know about it like many people or I come here and I make these statements.
She said that she had sought medical treatment because of the "distressing problems" she experienced at that time. Ultimately she moved out of the counselling Service and to the Registry.
The Applicant said that the events in July 1993 had made him upset. However, prior to this he had noticed that he had become anxious and sometimes very irritable and he suffered from reflux, ulcers and bowel problems. He believed that his physical symptoms probably worsened, and noted that the changes in management compounded the problems of the earlier years, which had also taken their 'toll' on him.
The Applicant consulted saw Dr Lambert either in 1993 or early 1994. Having become more anxious and depressed in 1993 he commenced treatment on Prozac, which he continues to take. The Applicant said that between July 1993 and February 1994 his condition varied. During that time he was always trying to cope with an impossible workload and inadequate resources, and the more he drew this to the attention of senior management the more bitter and malicious management became towards him and his staff.
The Applicant said that from June 1993 until October 1994 –
I was feeling under siege; I was becoming more and more anxious, I was becoming very depressed, very irritable. I wasn't coping and I felt things were pretty hopeless, I felt it didn't matter how much one devoted oneself to one's duties, that the competent and conscientious performance of duties had become quite irrelevant to that particular Family Court management.
The Applicant said that his relationship with Ms Cooke by this time had become "very difficult and tense". He noted that although Ms Cooke had admitted that she had been "remiss" at one meeting she had with him and the Counsellors, the CEO and Dr Brown did not accept that. He said that when Dr Brown had been on his staff as a Court Counsellor she had become very antagonistic towards him. He considered that Dr Brown was encouraging regional management "to mount attacks" on his counsellors and particularly on him.
Ms Cooke agreed that there was public service policy in place about the way to conduct formal disciplinary counselling. She did not proceed to formal disciplinary counselling in respect of the Applicant's performance regarding these issues. She said that the Court counsellors and the Applicant were a very "tight unit". The Court counsellors did not speak to her without the Applicant being present, and were uncomfortable when she attempted to talk to them individually. She said that if she went into a counsellor's office in Newcastle, very soon afterwards the Applicant would appear. She attempted, unsuccessfully, to set up links with individual counsellors. She believed that the Applicant was giving the view to the counsellors that she was negative towards him and trying to undermine his role. She believed that if she commenced a formal disciplinary role this would further alienate the counsellors and legitimate the perception she believed the Applicant was trying to convey.
Ms Cooke said she accepted Mr Goodsell's observation (exhibit 8) that in June 1994 morale in the Newcastle Registry was very low. He observed that the morale was once very high and that the counsellors wanted to return to that position. He also observed that there was friction between the Director of Court Counselling and the Regional Office. Ms Cooke noted that Mr Goodsell was the Director of Court Counselling in the Parramatta Registry when he wrote the report about the Newcastle Registry after he had acted in the position of Director of Court Counselling, Newcastle for a time. In the report he noted that one person had mentioned that –
The recent concentration on uniformity had eroded Newcastle's uniqueness.
Ms Cooke said this was an attitude that had been expressed to her from time to time in Newcastle that she did not experience in any of the other registries. She agreed with Mr Goodsell on the issues he raised in the report.
The Applicant said that the domestic violence policy allowed for joint interventions in certain cases. He outlined this in a memo to the counselling staff on 10 January 1995 (T123), stating that in respect of matters where there is an element of domestic violence –
There will be no joint conference with both parties unless:
1.Protective orders allow it;
2.The victim of violence genuinely wishes it, i.e., the victim of violence is not coerced into it;
3.The Director of Court Counselling must approve it;
4.Director of Court Counselling must sit in on that session or sessions;
5.The security officer must be in attendance close by on the 2nd floor;
6.The parties under no circumstances, if joint counselling takes place, are to be left alone together, not even for an instant.
The Applicant explained that his rationale for "sitting in" on those joint conferences was that all but one of the counsellors was a woman, and some were elderly. He said that this conformed to the policy as he understood it, and he noted that very few joint interviews took place. He said that he did not exceed the position classification standards for senior professional grade A officers.
The Applicant said that he was keen to ensure that the Court's domestic violence policy was implemented. He disagreed that the Newcastle counselling staff were hostile to the policy but they were resistant to its blanket application, a position that he also held.
Ms Cooke's evidence was that she had become aware that the Applicant instructed the counsellors at Newcastle to respond to requests for separate interviews by suggesting that they attend sessions with their ex-partner. She believed that his memo to the counsellors (T123) contravened the domestic violence policy. She was concerned about the view held by some of the counsellors in Newcastle that the only way to be able to resolve issues, even when there were issues of domestic violence, was to have the people in the same room together. She was concerned that the procedure might be used as a way to get around the policy. She did not think it was sufficient reassurance to have the Director of Court Counselling attend the counselling sessions. She was concerned that pressure would be applied to women to have an interview with their ex-partner, even though they may have significant concerns. She was also concerned about what might happen after the interview.
Ms Cooke said there had been a lot of discussion about the concerns of the counsellors, and they had discussed with her the view that the policy was a restriction on their capacity to operate properly as counsellors. The Court kept records of separate interviews held because of concerns about family violence and there were no records of joint interviews where there had been a concern. She had not observed that interviews proceeded with both partners present in cases of domestic violence, but there had been complaints from the community that that was happening. In light of the counsellors' views she was concerned that joint interviews were still occurring.
In order to discuss her concerns Ms Cooke said the domestic violence topic was on the agenda of every meeting she had with the Newcastle counsellors and at the Directors' meetings, in addition to discussing it with the Applicant and the counsellors individually. In her opinion there were very strong feelings against the Court's approach to domestic violence and family violence and the counsellors saw it as an encroachment on their professional practice. She said they were not open to discussing these issues to the extent she believed necessary to resolve their concerns. She believed that the Applicant "championed the counsellors' viewpoint" and was not prepared to work with her to clarify and implement the policy. In practical terms she said she expected him to support her by giving her views some credibility with the counsellors. When she raised with him her belief that he was not co-operating with her towards that goal he became angry and dismissive, saying "but we are implementing the policy" and showed her some "paperwork" about separate interviews being held in situations where there are Apprehended Violence Orders.
Referral to the Commonwealth Medical Officer - 1994The Applicant considered that the counselling unit started to "disintegrate" because of the pressures being exerted by management. He said that one of the counsellors was encouraged to make a complaint about him to management. He was then referred by the CEO to the Commonwealth Medical Officer ("the CMO"). He believed the reason for the referral was to provide him with an "easy way out of the Court, on the grounds of medical invalidity". He said he did not want to see the CMO because senior management had sent non-medical, derogatory and detrimental material about him to the CMO. He said that at that time "emotionally and personally I was a complete and utter mess".
The Applicant was referred to the CMO at the request of Mr Glare, the CEO. Mr Glare was not satisfied with the equivocation in the medical reports. He said –
There were a whole lot of things which aren't particularly to do with these proceedings I suppose, but there were many grievances flying in different directions. His state of mind worried me; his behaviour as reported by the supervisors and the regional manager and you probably have some of that in the documents. The fact that when counsellors see clients they are seeing people in a very emotional state of mind and they don't need to be having difficulties of their own at the same time. All those things concerned me.
The Tribunal notes that on 22 June 1994 there was correspondence from Mr Foster and Ms Cooke at T56 and from Ms Klarkowski, the Regional Manager East, at T57, about the CMO referral. Subsequently an appointment was made for him with the CMO for August 1994.
In the memo. encouraging the referral of the Applicant to the CMO in June 1994, Ms Cooke and Mr Foster listed problems that they had with the Applicant from May 1993 to June 1994 (T56). They wrote, "Since the commencement of duty as Regional Director of Court Counselling (October 1991) and Registry Manager Newcastle (May 1993) we have had concerns regarding the performance of Mr Terry O'Donohue …".
Ms Cooke agreed that during the period to which the abovementioned memo. related she considered that the Applicant could not lead the counselling section effectively although no counsellors had complained to that effect. Her opinion was based on her observation and concerns about his level of supervision, and leadership in relation to management of major policy initiatives such as domestic violence.
Ms Cooke in her evidence agreed that referral to the CMO had been initiated to see if there were grounds for dismissal of the Applicant on the basis of invalidity. She said that when this failed no other official route was explored. She was not his line manager, and although she may have been able to conduct formal disciplinary counselling, any other course of action would have required joint action with the Registry Manager.
Dr Graham, Occupational Physician and CMO, provided a report dated 20 September 1994 (ST20) in which he opined that the Applicant was medically fit for his normal work, but that "management issues need to be addressed to prevent a recurrence of the psychological symptoms that arose earlier this year".
Subsequently, Mr Glare had directed the Applicant not to undertake counselling. It was not until after the incident with "Mr I" that Ms Klarkowski told him that she had come to the view that the Applicant was capable of seeing clients again and irrespective of his direction she had agreed to the Applicant seeing clients. He then wrote to the Applicant on 10 November 1994 (ST24) formally withdrawing his direction.
Performance AppraisalMs Cooke noted that the Court was required by the Public Service to implement a performance appraisal scheme. In relation to counsellors at the Newcastle Registry, the Applicant was required to conduct those performance appraisals jointly with the Registry Manager. However, she and the Registry Manager conducted the appraisals.
Ms Cooke recalled a performance appraisal of the Applicant about May 1994 in which he declined to participate because he did not consider it was a reasonable process. Ms Cooke accepted that at that time of the performance appraisal the Applicant told her that he was not prepared to proceed with the interview unless he had a representative present from the Public Service Union. She agreed that her response was to the effect "it doesn't really matter because there is an appeal mechanism".
Ms Cooke said she and the Registry Manager did the appraisal, insofar as they recorded the comments they were going to make if they had met with the Applicant. She said his concerns were not made directly to her, but may have been made to Ms Klarkowski, the Regional Manager. She accepted that the Applicant was probably of the view that an independent person should conduct the appraisal, as he felt there was some problem in management. Ms Cooke disagreed that at the same time she and others wanted to refer the Applicant to the CMO. She said that she was asked by Ms Klarkowski to provide written material in relation to a referral that was being made to the CMO. To service that request she and the Registry Manager provided a joint response. Ms Cooke agreed that the document at T56 summarised her concerns in relation to the Applicant's performance. The Applicant's refusal to participate in a performance appraisal was one of the issues she raised.
In relation to the Applicant's performance appraisal in 1995, Ms Cooke understood that he objected to her conducting it because he perceived her to be biased. She discussed the issue with Ms Klarkowski, but not with anyone else. Ms Klarkowski advised her and Mr Foster to proceed with the performance appraisal in the same terms as the performance appraisals she was conducting with the Registry Managers for the other Directors of Court Counselling. She accepted that at that stage there was a long history of conflict between the Applicant and herself, and her perception was that the Applicant was unwilling to consult her and discuss matters with her, or to allow her to do her job.
Ms Wingate understood that in 1994 the Applicant had felt threatened by the fact that the performance appraisal was being made on him, firstly by the Registry Manager, who the Applicant considered to have insufficient knowledge about his work, and also by the Regional Director who had some hostility to him. Ms Wingate recalled that an issue raised by her and another counsellor in relation to the domestic violence policy was considered to be the Applicant's fault and this went against him in his performance appraisal. She said that the Applicant became anxious during the performance appraisal and she thought he might have taken some stress leave about that time.
The "I" Family IncidentOn 27 October 1994 the Police telephoned the Applicant requesting an interview for the "I" family. The Applicant said that after he had conducted the interview, "Mr I" tried to abduct one of his children and the Applicant tried to prevent this. The Applicant immediately compiled an incident report (T83). In the report he referred to a "push and shove incident" when "Mr I" refused to leave. "Mr I" then tried to choke the Applicant, an incident witnessed by the cleaner, and then struck the Applicant across the face.
The Applicant said that subsequently when police asked him if he wanted "Mr I" arrested he declined. Following the incident Mr H G Colina, Deputy Marshall, provided a report dated 2 November 1994 (T87), in which he questioned why the Applicant did not request that a Security Officer be in the vicinity of the counselling area for immediate assistance given the nature of the matter. He also considered that the duress alarm should have been activated when "Mr I" refused to leave rather than the Applicant resorting to physical action. Mr Colina recommended that the Applicant file a complaint regarding the incident, but the Applicant did not follow this advice until August 1995. The Applicant told the Tribunal that he delayed because he did not feel it was in the best interests of the children to take action earlier and he thought that there might be some possibility of reconciliation between "Mr and Mrs I". He also attributed the delay to the depressive illness from which he was suffering at that time.
When the Applicant commenced proceedings for contempt (T174) and assault (T176) against "Mr I" in August 1995 he believed that management had undermined the Court's judicial process. He also did it to protect himself. Prior to taking this action he had discussions with his solicitor and by then it was clear that the "I" marriage had definitely ended and the children were placed in care for a time with the Department of Community Services.
The Applicant said that "I" file was not "marked" at the date of the incident, and he did not tell Mr Colina that it was "marked". He said that he had requested the security officer to be present, but he was unavailable as one of the Judges had a social function and he was taking the visitors to the Judge's chambers.
The Applicant said that on the day of the incident the rest of the counsellors were in Sydney. The police brought the family in, but did not stay. The Applicant said that he could not activate the duress alarm because it was located in the office, and he was outside the office showing "Mr I" into the waiting room after the interview. If he had returned to his office to activate the alarm that would have given "Mr I" an opportunity to abduct the child from the Court. The Applicant said that he did not anticipate the incident – "it happened in a split moment". He had seen "Mr I" on a number of previous occasions for the purpose of providing a family report, and "Mr I" had taken strong exception to the family report.
Disciplinary ProceedingsOn 8 December 1994 (T97) the President of the Lone Fathers Association wrote to Ms Cooke urging her to investigate the incident. The Applicant agreed that there was nothing wrong with the communication between the President of the Lone Fathers Association and Ms Cooke, but questioned whether it was "cooked up" by her beforehand as "she had a propensity for that sort of operation".
The Applicant advised Mr Glare about the incident. Mr Glare said that he did not mention the "push and shove" incident in his communication with the Applicant dated 10 November 1994 (ST24) formally withdrawing his direction that the Applicant not undertake counselling, because he did not regard the situation as serious at that stage. However when he became aware from Ms Cooke of the complaint from the Lone Fathers' Association he regarded the incident as serious.
On 3 January 1995 Mr Glare advised the Applicant that "Mr I" had confirmed his complaint and he intended to appoint an authorised officer under the Public Service Act 1922 ("the Public Service Act") (ST27). Subsequently Ms Rimmer was appointed (ST28). In November 1994 she had been appointed as the Regional Registrar, Eastern Region. Mr Glare noted that the appointment of an authorised officer was many months before the Applicant gave evidence to the Joint Select Committee on family law issues in May 1995.
Mr Glare's evidence was that he considered the Lone Fathers' Association to be a "fairly respectable organisation" that received government funding and the president, Mr Williams, co-signed the complaint. Mr Glare then wrote to "Mr I" on 14 December 1994 (T102) and asked him to confirm his intention that the matter be referred to Court management for investigation as the complaint had been received from a secondary source. "Mr I" wrote to him on 19 December 1994 (exhibit M) authorising "Lone Fathers" to provide the original document which he thought was in the form of an affidavit or a statement of some kind. In the meantime Mr Glare had written to the Applicant on 15 December 1994 (T104) advising that he would consider the question of the appointment of an Inquiry Officer if "Mr I" confirmed the complaint. Mr Glare also noted in this letter –
When and if the complaint is confirmed, I will consider the question of the appointment of an Inquiry Officer and will take into account your request that someone properly qualified, impartial and independent of the Court carry out the investigation.
Mr Glare said that after considering other options, he formed the belief that a disciplinary investigation by an authorised officer was his only course of action. He was aware that there was no civil claim for damages arising from the alleged assault being pursued at that time. However there were a number of other issues at the same time but he had some difficulty remembering the sequence of events. There were grievances by the Applicant against other people and grievances by staff members against the Applicant.
In appointing Ms Rimmer as the authorised officer Mr Glare considered her to be someone with the capacity to be objective. She was sufficiently senior to be appropriate to conduct an investigation in relation to a fairly senior officer of the Court and she had enough legal understanding to conduct the investigation in the proper way. In his view, she had not been connected in any way with the events and she was not ordinarily associated with the Applicant.
The Applicant was adamant that Ms Rimmer should not undertake the investigation. In his view he was "being fitted up" for carrying out his duty and preventing the abduction of the "I" child. He expressed those concerns to the CEO when informed in early January 1995 that Ms Rimmer was conducting the investigation, and he requested an independent and unbiased investigator be appointed. Mr Glare, in his evidence, said that he dealt with each issue raised by the Applicant about the apprehension of bias and considered that there was no substance in those objections and no reason to change the appointment. He noted that Ms Rimmer was acting as Principal Registrar at the time he appointed her as the authorised officer. Mr Glare was aware that as Regional Registrar Ms Rimmer's office was on the same floor as that of Ms Klarkowski and Ms Cook, but he was not aware that they had shared a common secretary.
Ms Rimmer said that she became aware of the allegations against the Applicant from one of her supervisors, either Ian Lachlan or Ms Klarkowski a couple of weeks before she was appointed. She told the CEO when he was considering her appointment as the authorised officer that she had met the Applicant probably three times. On one of those occasions she and the Applicant made a joint presentation at a seminar. During the presentation she believed the Applicant gave legal advice which was incorrect. She said she found this embarrassing but felt she had to correct the error. She could not recall whether she discussed this matter with anyone else.
Ms Rimmer said the CEO provided her with certain documents including the letter that "Mr I" sent to the Court, a security incident report and one or two letters. She then requested certain documents, including the family report and the "I" family file from Newcastle. She saw her role as one of gathering information and assessing that information, much as a police officer would do. She did not consider it was her role to conduct an inquiry or to cross-examine people. She had to consider whether on the balance of probabilities the Applicant might have committed the offence. She understood that it was then another person's role to "investigate it very thoroughly".
Ms Rimmer wrote to the Applicant on a number of occasions requesting an interview with him (ST29; ST32; ST36), but he refused to see her or to make a statement. She became aware only after she had completed the inquiry that the Applicant objected to her conducting it.
Ms Rimmer said that "Mr I" gave her the police report of his interview, and also the police report of his son and mother. Ms Rimmer did not interview "Mr I's" son, but she interviewed "Mr I" because he was the complainant, and his mother at "Mr I's" insistence. She was aware that "Mrs I" Jnr. had a different version but also noted that the three versions that she had obtained were similar. She said she was unable to obtain the police report of "Mrs I" Jnr. She thought the Applicant had also seen the police. She could not recall the role of the cleaner. She said that she did not interview the security guard because he had come after the incident was over.
Ms Rimmer said she did not interview "Mrs I" Jnr. because, after reviewing the documents available, she considered she had been given a fairly clear outline of the incident in the affidavit. As the parties were involved in proceedings before the Court she thought it would be inappropriate to interview "Mrs I" and escalate any proceedings between the parties about their children. She considered from reading their file, and her interview with "Mr I" that the family dynamics were volatile and in the Applicant's family report he described "Mr I" as being "highly volatile". Ms Rimmer said that she was more concerned about not interviewing the Applicant than "Mrs I" Jnr. She said that "if Mr O'Donohue had given me his version of events it might have influenced or changed my decision because I would have had two versions".
Ms Rimmer said that during the course of her investigations and in the preparation of her report nobody sought to discuss with her or influence the way in which she prepared her report or the conclusion she reached. She said she was not influenced in any way by the fact that the Applicant had given evidence before a Parliamentary Joint Select Committee.
Ms Rimmer recalled that she prepared her report about mid April 1995. She had waited for "Mr I" to send an authority for her to obtain a hospital record, as he alleged that he had attended hospital in relation to the incident, but despite follow-up by her secretary he still did not provide it, and so she finalised her report.
Ms Rimmer's secretary, Ms J Franckland, typed the report. Ms Rimmer explained that Ms Franckland is the wife of Mr Bruce Franckland, who at the time was the Principal Director of Administration. Ms Rimmer said that she instructed her secretary about the confidentiality of the report and she was satisfied that confidentiality had not been breached.
Ms Rimmer understood it was prudent for an authorised officer to obtain legal advice before charges were laid and agreed that she obtained advice from AGS on how to draft the charges. She received advice from AGS that there was sufficient material for charges to be laid and the form that the charges should take. She did not know who had instructed AGS, but she had not. She sent her report to the CEO and it was then forwarded to AGS. She had one further discussion with the AGS solicitor when she reported that if the Applicant was found guilty of any of the charges it was likely that he would appeal to the Disciplinary Appeal Committee ("the DAC").
A letter from AGS dated 16 May 1995 (ST45) noted that it should be possible to check with the cleaner, the security guard and "Mrs I" Jnr. as to their versions of events. Ms Rimmer did not consider that these were requisites of the investigation. Indeed she could not recall whether she had seen the letter from AGS. She understood the advice to say that there was sufficient material for the charges to be laid and that there were steps that might be taken by an inquiry officer, who she understood, had "much wider powers".
Ms Rimmer said she laid charges because she had been employed by the Court for a long time; she was concerned that a physical altercation had occurred and she believed that there were a number of other options available to the Applicant, rather than allowing the situation to escalate into a physical altercation. She understood that under s61(2) of the Public Service Act, she was required to determine the appropriate action, such as counselling or the laying of charges.
Ms Rimmer said that at the time of her investigations, she might have known something about the concerns of senior management through Ms Cooke about the Applicant's work performance, but not "very much". She could not recall at what stage she became aware.
Ms Rimmer disagreed that in her report she relied upon "Mr I's" evidence to the exclusion of other contrary evidence. She noted that the Court had procedures in relation to security incidents between clients and officers that the Applicant did not follow. Staff are required not to become involved in a physical altercation unless they are assaulted. She was aware that the Applicant "belatedly" contacted Security, but felt he should have done so when the situation was starting to escalate, not when the incident was out of control.
In relation to the incident with "Mr I", Ms Cooke said her involvement was limited to receiving the original letter of complaint from the Lone Fathers Association. She had had some professional dealings with that organisation. She sent the complaint to the CEO and the Regional Manager. She recalled discussing it with Ms Klarkowski but she did not recall discussing it with Ms Rimmer or anyone else. However, she said if in fact she did discuss it with Ms Rimmer it could have been because of its serious nature. She considered that it was a matter with which she would not be dealing because of its nature.
Ms Cooke agreed that she had discussed particular incidents and issues relating to the Applicant in great detail with Ms Klarkowski, Ms Rimmer and Dr Brown over the years. She said that she and Dr Brown had a good working relationship, she had attended with Dr Brown at a few work-related social events but otherwise they did not socialise together.
The Applicant said he refused to participate in the disciplinary hearing because he believed Ms Rimmer was not independent or unbiased, and he had been subpoenaed on behalf of "Mrs I" to give evidence in a contempt hearing relating to that incident, listed for the end of February 1995. He viewed the situation as "totally hopeless". The Applicant also said that when he attended the contempt hearing the solicitor for "Mrs I" told him that the Judge had refused to hear the matter. He concluded that the Judge had failed to exercise his jurisdiction and noted that other contempt proceedings against "Mr I" had been heard.
The Applicant said that he had not had a lot to do with Ms Rimmer until her appointment on 4 January 1995. He first met her at a meeting in which he was asked to address on consent agreements between parents. She assisted him to deliver those talks. Ms Rimmer's evidence was that the Applicant was incorrect in his comments about the legislation, and she felt obliged to ensure that the counsellors had a correct understanding of the legislation and its requirements. The Applicant said that it was Ms Rimmer who did not have a proper understanding of the legislation and that he had complained to the Principal Registrar about the incorrect information she gave.
The Applicant said that before Ms Rimmer was appointed as the authorised officer he was aware from a Parramatta Counsellor, Mr Preston, that Ms Rimmer had "verballed" him on behalf of Jennifer Cooke who had had a dispute with him. The Parramatta counsellors at the time were "under a state of siege" by "management" and Mr Preston was the only counsellor in that registry who had the "professional integrity" to "stand up". The Applicant said there had been a long standing conflict over many years.
The Applicant did not dispute Ms Rimmer's qualifications, namely that she was a senior lawyer with experience as a registrar, exercising delegated judicial powers in Family Court proceedings. He was concerned about her conflict of interest as she was also a manager, in a very close enmeshed relationship with Ms Cooke, and they occupied adjacent offices. He said these women worked "dysfunctionally, in cohesion with each other". Prior to January 1995 he was aware that they also socialised together.
The Applicant considered Ms Rimmer to be "an unprofessional and unethical person, … and certainly fitted well into the management of the Family Court at that time".
When Ms Rimmer was appointed as the authorised review officer the Applicant advised the CEO, through his union, that he would not meet with Ms Rimmer (T124). The letter written on his behalf by the Union stated –
Given Ms Rimmer's previous dealings with court counsellors, especially with those at Newcastle, Mr O'Donohue has a reasonable apprehension of bias on her part. CPSU supports Mr O'Donohue in his position and confirms that Ms Rimmer is unacceptable to us in any investigation of Mr O'Donohue.
The Applicant elaborated that there was a long period in which he was attacked over the implementation of the domestic violence policy. He said that at one stage the Regional Manager, Ms Klarkowski, alleged that he was advising Local Court magistrates on how to draft certain Orders. Prior to this he was questioned about the way domestic violence directions and policies and procedures were being implemented in Newcastle. He said there was criticism of the way he dealt with clients over this. He said at times he was attacked for over-reacting to the dangers of domestic violence situations, and at other times for not adhering to the policies and the directions. He maintained that these allegations were untrue.
The Applicant said that as Ms Rimmer had already been appointed as the authorised officer he felt that it did not matter what he said or what explanation he gave. He had no confidence in Mr Glare, and believed that this was another attempt to push him out of the Court when the 1994 referral to the CMO had failed to have him retired on grounds of medical invalidity. He said there had been many attacks made on him by management.
The Applicant believed that if he had co-operated with the investigation conducted by Ms Rimmer it would have undermined the "frame-up" of those proceedings. He formed this view because "Mrs I", the cleaner, and the security officer would then have given evidence on his behalf. He noted that when Ms Rimmer carried out her investigation she failed to interview "Mrs I" Jnr. or to obtain her statement to the police. However she obtained the police statement of 'Mr I' and "Mrs I" Snr. At no time did the Applicant suggest that the complaint against him should not be subject to an inquiry or investigation – his objection went only to the appointment of Ms Rimmer to conduct the investigation.
The Applicant said that "Mrs I" had custody of the children, not just access, and "Mr I" tried to abduct the child. He said that the child subsequently made sexual abuse disclosures against "Mr I". The Applicant later discovered that the elder daughter had made sexual abuse disclosures against "Mr I" some 12 or 13 years earlier. He considered that management would have been aware of this, but still persisted with the inquiry, which he considered to be a "fit up".
Ms Cooke noted in her evidence that the Applicant had made comments to the Parliamentary Joint Select Committee that she considered were critical of the Court and not helpful. Following Ms Rimmer's inquiry, charges were laid against the Applicant in May 1995, a week or two after he gave evidence to the Parliamentary Joint Select Committee into the Administration of the Family Court. The Applicant said he believed that the charges were laid to make him look bad - a "pay back", revenge - for the evidence he gave to the Joint Select Committee which he said was largely upheld in the committee's report findings. He noted that, unlike him, Family Court Judges and Registrars had given evidence to the Joint Select Committee in camera. The Tribunal notes that pursuant to the Parliamentary Privileges Act 1987, it is not able to take the evidence of those proceedings into account.
The Applicant said that when he received notice of the charges (T147) on 18 May 1995 he "wasn't that concerned" because he believed that the contempt matter would be heard and these issues would be resolved. Mr McManus, the Northern Regional Registrar in Brisbane, was then appointed on 23 May 1995 to conduct an inquiry. Mr Glare said that Mr McManus was appointed as the Inquiry Officer, because he was a senior lawyer, located in Brisbane away from the people involved in the events in question, he sat regularly in Court and he had "quite a good detachment". Mr Glare described him as a "fiercely independent judicial officer" and he thought Mr McManus would therefore be appropriate to do what was "quite a difficult job". The appointment was formalised by Mr Franckland, who was by then acting CEO, after discussions with Mr Glare about who would be appropriate.
The Applicant objected to Mr McManus, whom he saw as a "tool of management". Again, he considered that he would not get "a fair go" from Mr McManus. He was aware that Mr McManus and Ms Rimmer had worked together in the Brisbane Registry for some time. He said that at the time of the appointment there was "a general perception of McManus as being the hatchet man of management throughout the Court". The Applicant said that he asked on numerous occasions for someone independent of the Court to be appointed who would be "objective and unbiased". The only previous dealing the Applicant had with Mr McManus was at a conference in the 1980's, when they had a "bitter argument" about the role of Registrars and Counsellors regarding mediation and counselling. He admitted that he would have had an apprehension of bias of any person appointed by Mr Glare.
In his oral evidence Mr O'Neill elaborated in respect of his letter to the CEO dated 27 June 1995 (T160) where he noted –
Mr O'Donohue has a reasonable apprehension of bias in an inquiry by Mr McManus because of the collegiality of regional registers (sic) and regional directors in the Court.
He understood Mr McManus had been one of Ms Rimmer's referees in respect of her previous employment. He also considered that there was a reasonable apprehension of bias when persons come from a group of people with a "collective interest" and a "collective managerial philosophy". He said that he and the Applicant were seeking a "demonstrably independent inquiry officer". He also said that this did not reflect on Mr McManus personally. In his view, the CEO should not have used someone in a position of senior management and indeed he should have "cast his net" outside the Court. He said –
Lets be realistic. If somebody is in a position and they wish to have a career in that agency, they're in a managerial position, how likely is it that they will speak out against what is seen as the correct view, the management correct line? Its quite clear from the sackings of Jeff Preston and the attacks on O'Donohue … that people who speak out in the Family Court tend to have their heads lopped off.
Mr McManus could not recall any dealings with the Applicant prior to his appointment as an inquiry officer. However, he was aware prior to conducting his inquiry that Mr O'Neill had communicated concern that the appointment was not independent.
The McManus inquiry proceeded on 14 and 15 August 1995, and the Applicant, amongst others, gave evidence. In his evidence to the Tribunal Mr McManus said he could not recall whether he was aware that there was a question about the Applicant's medical fitness for his duties, or whether there were documents before him providing evidence on that issue.
Mr McManus produced his report dated 15 September 1995 (exhibit 12). He directed that in respect of the charge of assault on "Mr I" the Applicant be dismissed pursuant to s62(8)(b) of the Public Service Act, and that in respect of failing to comply with Regulation 8A(b) of the Public Service Regulations he be demoted to the position of Court Counsellor.
Mr McManus agreed in his evidence to the Tribunal that the Applicant's failure to follow the Court policy and guidelines was a significant factor in the conclusions he reached. In choosing the appropriate penalty he considered the Applicant, in his position as Director of Court Counselling, to bear an amount of responsibility for the assault because he failed to follow those instructions.
From January 1993, the Tribunal finds that the Applicant became stressed and anxious because of the implementation process of the Court's domestic violence policy. The Tribunal finds on the evidence before it that the implementation process was perceived by the Applicant and the counsellors in Newcastle to prohibit constructive discussion about significant professional issues relating to the policy. There was a perception on the part of management in general, and Ms Cooke in particular, that the Applicant did not support the policy. However the Tribunal finds on the evidence that he took all reasonable steps to ensure that his staff abided by it, but he also allowed critical professional discussion of it within the Counselling section. Moreover, the Tribunal finds that this was entirely reasonable action for the Applicant to take as the supervisor of professional staff. The Tribunal also finds on the evidence of Ms Cooke that she had misinterpreted the Applicant's motivation in respect of the implementation of the domestic violence policy, and that her concern that the Applicant and the Newcastle counsellors may develop procedures to "get around" the policy was ungrounded. The Tribunal finds that the problems surrounding the implementation of the domestic violence policy is an illustration of the negative sequelae of organisational change that was not addressed by senior management in a constructive and systematic way. The issues became public, through no fault of the Applicant, and the Tribunal finds that the approach taken by senior management in dealing with the public debate and subsequently with the Counsellors in Newcastle and then with the Applicant himself (ST3 and 4) increased the Applicant's distress, anxiety and frustration.
The Tribunal also finds that the implementation of the domestic violence policy insofar as the Newcastle counsellors were involved, is an illustration of significant problems in the organisation relating to the function of professional counsellors, be they psychologists or social workers, providing a professional service to Court clients, in an organisational environment where counselling is not the primary function.
The implementation of the domestic violence policy also became a vehicle within which the troubled relationship between Ms Cooke and Dr Brown on the one hand, and the Applicant on the other, became quite stark. The interview between Dr Brown and the Applicant on 10 August 1993 (ST3) is evidence of the negative organisational environment in which the Applicant was operating at that time. It was also evidence of a complex organisational problem that the Tribunal finds was never resolved before the Applicant resigned from his position. Although in August 1993 the Applicant had agreed to discuss his difficulties with Ms Cooke personally, by December 1993 it appears that he denied that he had made that agreement (ST5). There is evidence that by that time Dr Brown consulted the CEO in an attempt to resolve the difficulties.
In May 1994 the Applicant insisted that he would only participate in a formal performance appraisal if a union representative and a representative of the Australian Psychological Society were present, and that the proceedings were recorded independently. That performance appraisal did not proceed but the Applicant was referred to the CMO.
In March 1994 the CEO raised the issue of the Applicant's ability to undertake his work, and suggested a referral to the CMO, to which the Applicant agreed ultimately in May 1994. However, the Applicant cancelled the appointment due to a clash with another medical appointment. When a further CMO appointment was made, the Applicant said he was not available until September because of his work commitments. This culminated in Ms Klarkwoski making a recommendation in August 1994 to the CEO to suspend the Applicant from duty. Subsequently the CEO issued a formal Direction stating (T70) –
WHEREAS I have formed the belief that your state of health may be affecting your work performance and taking into account indications that you are having difficulty in keeping your feelings under control and in the light of the special demands of case work and the particular vulnerability of counselling clients,
NOW THEREFORE I, Leonard George GLARE, Chief Executive Officer of the Family Court of Australia, hereby direct you not to perform any and all client contact aspects of your work until further notice.
I will review this direction when I have received and considered a report from a relevant medical practitioner pursuant to Public Service Regulations 46, 49 and 51.Following examination by the CMO, Dr Graham recommended on 20 September 1994 that (ST20) –
1. Mr O'Donohue is medically fit for his normal duties as described in your Attachment E.
2. Management issues need to be addressed to prevent a recurrence of the psychological symptoms that arose earlier this year.
3. His other medical conditions should not cause any further problems. He is in fact quite well for his age.
The Tribunal notes that this opinion was not based on a psychiatric assessment. The Applicant was subsequently advised of the CMO's report on 12 October 1994 (ST21). The Tribunal finds that there was no subsequent resolution of the problems by management following this advice.
An issue for the Tribunal is whether the Applicant was properly authorised to be engaged in counselling at the time of the incident with "Mr I". Ms Klarkowski presumably had no power to vary the direction of the CEO without his authority, and the CEO had no knowledge of the variation so he could not have authorised it. This issue must be factored into the consideration of whether the disciplinary action taken as a result of the "Mr I" incident was reasonable, together with the reason for the Applicant being directed by the CEO not to undertake counselling, that is, whether he was fit to do so. While the CMO considered him to be fit, the CMO opinion on its own would not automatically negate the direction made by the CEO. Clearly, however, the Applicant believed he was authorised to resume counselling because Ms Klarkowski, his regional line manager, had authorised it.
The Tribunal also notes that Ms Klarkowski's minute (ST12) was written prior to the incident with "Mr I". That minute also recommended that if the Applicant was to continue to attend his place of employment while exhibiting his high level of stress he should be directed not to see clients. Management has a duty of care in the workplace, and in this case it was not exercised sufficiently to ensure that the Applicant did not develop or exacerbate a work-related stress and depression. It is significant at this stage that the CMO, an occupational physician, considered that there was a management problem that needed to be addressed. All the evidence points to there being a complex management problem in which the Applicant was implicated, rather than the Applicant merely being the problem with which management had to cope. However, even if the problem was largely or essentially of the Applicant's making, it is the responsibility of management to deal with the Applicant in such a way so as not to cause him an injury. In addition to his obsessional personality, which on the medical evidence made the Applicant vulnerable, the Tribunal finds that by mid 1994 he was in a significantly distressed state which itself increased his vulnerability to psychological injury.
By 1993/4 there is abundant evidence of stress and depression being a significant factor for the Applicant, necessitating psychiatric treatment by a specialist as well as time off work for which he received compensation. The Tribunal finds that by the time the Applicant returned to work at that stage, while the major depression from which he suffered had resolved, he continued to suffer depression of a milder degree for which he needed long-term antidepressant medication.
The Tribunal accepts that while the Applicant had, on Dr Dent's view, a "paranoid view" which would have affected his reality testing about management, the Tribunal finds on the evidence that there was a significant negative reality in the Applicant's work environment, mostly caused by the poor relationship he had with Ms Cooke and Dr Brown. The Tribunal is reasonably satisfied that Ms Cooke, and to a lesser extent Dr Brown, were unable to maintain a healthy work environment for the Applicant because of their inability to manage his challenges and his behaviour. The Tribunal accepts that the Applicant and the Counsellors on his staff were concerned about the implementation of the domestic violence policy as that policy was interpreted by Ms Cooke and Dr Brown. The problems caused for the Applicant and his staff are typical of the difficulties of professional practice in a bureaucratic organisation. In addition, in this case, there was interprofessional conflict between psychologists and social workers which was obviously compounding the problem. There was, indeed, a complex management problem confronting Ms Cooke, Dr Brown, Mr Foster and Ms Klarkowski, which was not resolved satisfactorily and which ultimately had the effect of causing a significant psychological injury to the Applicant.
The Tribunal considers that the Applicant meets the test set by the Federal Court in Australian Telecommunications v Tzikas (1985) 5 AAR 173. His reaction to his work environment is not the reaction of a sick mind. Nor has the Applicant latched onto these past events and claimed that they have caused his problem, as submitted by the Respondent: Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, at 41.
By the time the Applicant returned to work after the major exacerbation of his work-related stress condition had resolved in 1994 he was confronted with a litany of challenges by senior management which he perceived as deliberate attempts to undermine him and get rid of him. Despite the fact that his psychiatrist considered he was fit for work, he was referred to the CMO, which the Applicant considered was an attempt to have his employment terminated on grounds of invalidity. The tenor of the correspondence at that time from Mr Foster and Ms Cooke (T56) and Ms Klarkowski (T57) would support the Applicant's assumption.
Section 61(2) of the Public Service Act provided –
Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:
(a) if he decides that the officer should not be charged – may counsel the officer or cause a supervisor of the officer to counsel the officer; or
(b) if he decides that the officer should be charged – shall, by writing under his hand delivered to the officer, charge the officer with the failure.
The Tribunal notes the decision of the Federal Court in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 at 83 –
In the context of the definition of "injury" in s 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition…… Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act.
The Tribunal finds that the Court's domestic violence policy and policy about Court security are examples of "rules of conduct or behaviour" to which Cooper J referred in Chenhall (supra).
The Tribunal finds that the abovementioned negative organisational environment in which the Applicant operated in his employment provided a context for and was an influence in the outcome of the disciplinary action taken by the Court against the Applicant in respect of the alleged assault by the Applicant on "Mr I". That incident occurred on 27 October 1994. The Tribunal notes that the Applicant accepted that a formal investigation should occur, but requested from the outset that it be conducted by someone independent and external to the Court. That request was not surprising given the aforementioned organisational environment which had already had a significant negative impact on the Applicant's performance and his psychological state. The CEO refused the Applicant's request, and instead appointed Ms Rimmer.
The Tribunal notes the submission of the Respondent that, relying on the Tribunal's decision in Re Sheridan and Comcare [1999] AATA 767 (15 October 1999), the investigation of Ms Rimmer falls outside the definition of 'disciplinary action' under the Act. The Tribunal Re Sheridan came to that conclusion, having considered the decision of Cooper J in Chenhall and having regard to s63B of the Public Service Act. The Tribunal Re Sheridan interpreted that the inquiry conducted by the authorised officer was not an "inquiry into the charge" but an inquiry to ascertain if a charge is to be proffered. With respect, the Tribunal agrees with that interpretation, and decides that the investigation conducted by Ms Rimmer is not part of the disciplinary action for the purposes of the Act.
The Applicant vigorously opposed the appointment of Ms Rimmer as the authorised officer. Mr Glare suggested in his oral evidence that it was open to the Applicant to take out an injunction in the Supreme Court if he wanted to remedy this. It was submitted for the Respondent that the Applicant's opposition to Ms Rimmer went beyond the suggestion of bias - it is an illustration of being drawn into the vortex of the mind of the Applicant as to how he perceived Ms Rimmer and management, in retrospect.
Noting that the Applicant was, by that time, suffering from clinical depression and had been involved in a litany of difficulties with senior management in the recent past, and being reasonably satisfied that Ms Rimmer was part of the social circle of senior management with whom the Applicant had had many disagreements, the Tribunal finds that his objections should have been taken into account by Mr Glare in considering the appointment of the authorised officer. The Applicant did not co-operate with Ms Rimmer's investigations because he expected she would be biased against him. The Tribunal finds on the evidence, and taking into account the Applicant's heightened tendency to a "paranoid view", that there was a reasonable apprehension of bias, and that the involvement of Ms Rimmer in the role of authorised officer added materially to his already depressed state. This is not to say that the Tribunal has made a finding of actual bias. There is insufficient evidence for the Tribunal to be reasonably satisfied of actual bias. However, it was the apprehension of bias, which the Tribunal finds to be reasonable, that was the significant factor.
Moreover, Ms Rimmer apparently had sufficient knowledge about the Applicant to know that if he was found guilty of any charges he would be likely to appeal to DAC, yet she had not interviewed him in the course of her investigations. Her personal assistant, who typed the report of the investigation, was the wife of the Principal Director of Administration, and could easily have been the conduit for the passage of information to and from senior management despite Ms Rimmer's instruction about confidentiality. The Tribunal makes no more than a perception of bias in this regard, and has no evidence that Ms Franckland acted improperly.
In addition, Ms Rimmer's investigation did not take into account the evidence of those witnesses who could have provided evidence in support of the Applicant, viz. the security officer, the cleaner, and "Mrs I" Jnr. While there is some conflict as to whether Ms Rimmer had the affidavit of "Mrs I" Jnr. before her, it is clear that she did not seek to interview "Mrs I" Jnr, even though AGS had suggested she do so. The Tribunal also notes that Ms Rimmer sought legal advice from AGS before laying the charges, yet she said in her evidence that she did not instruct AGS. Assuming that management had provided those instructions to AGS, this process certainly lays itself open to interference by management, and in this case management had already demonstrated some interest in getting rid of the Applicant.
From the evidence of Ms Cooke the Tribunal finds that she required conformity without incisive discussion, and that any professional challenge about the domestic violence policy was seen as disloyalty and failure to co-operate and conform. The Applicant experienced stress as a consequence of Ms Cooke's management style. She did not understand or accept that a person in the Applicant's position might have an important contribution to policy review, and she came to doubt his preparedness to implement the policy merely because he allowed his staff to discuss the issues without his overt expression of support for the policy. This approach epitomises the problems of the existence of professional staff in bureaucracy, but rather than deal with it by effective communication and appropriate management strategies related to organisational change, Ms Cooke assumed that the Applicant was rejecting the policy and did not intend to conform to it. The Tribunal finds that the Applicant was acting within the scope of his professional responsibilities, and this widened the breach between him and senior management.
The Tribunal finds that the abovementioned work environment provided the psychological climate within which the Applicant developed a pathological stress reaction superimposed on a low-grade depression that had been emerging over the previous few years arising from the Applicant's perception of chronic overwork and his abortive struggle to obtain sufficient resources to provide a proper professional service. The Tribunal also finds that during this period before, during and after 1993, he existed in a management environment in which he was barely tolerated.
The Tribunal notes the submission of the Respondent that there was no proper basis for the Tribunal to conclude that management acted other than in a proper manner in the discharge of their duties. The Tribunal does not accept this. The evidence shows, and the Tribunal so finds, that over the years a negative attitude developed amongst senior management against the Applicant. He was a senior employee whom they perceived as undermining the direction in which they wanted to take the performance and administration of Court Counselling, and they were singularly unable to manage him constructively. Indeed, as time passed, they became less able to have him conform to their goals. In their view he was not co-operating with the domestic violence policy, he was not assisting his Counsellors in accepting and conforming to management's interpretation of the policy, he was regularly complaining about a lack of staff resources compared with other Registries, and he had refused to co-operate with performance appraisal.
The Tribunal does not propose to judge the rightness or wrongness of the Applicant's actions or those of senior management, beyond noting that the Applicant posed a difficulty for management in relation to which they demonstrated an inability to handle. While Dr Brown attempted to counsel the Applicant about his failure to co-operate with Ms Cooke, this was identified as informal counselling. No attempt was made to deal with his behaviour by formal counselling in respect of inefficiency, and indeed Mr Glare said that in his view such action would not have been appropriate. Management had already failed in their attempts to have the Applicant's employment terminated on grounds of unfitness for work. They had little alternative but to tolerate his alleged disruptive behaviour or to dismiss him on disciplinary grounds. The comment of a female officer overheard at the hearing of DAC when its decision was handed down that they still had the Inquiry to "get him", when added to the documentary and oral evidence, is sufficient for the Tribunal to be reasonably satisfied that management had not acted in a proper manner and that the credibility of the Respondent's witnesses was undermined. Indeed, each of the Respondent's witnesses had a real opportunity to be affected by, if not part of, management's motivation to get rid of the Applicant.
The attendance of the Applicant at the Coolum conference, on the heels of the McManus decision, had a marked effect on his mental health. His motivation in attending the Conference, to demonstrate that he considered himself to be innocent of the charges against him, was understandable, even in the face of a clear indication from management that he was no longer required by them to attend the Conference. That did not preclude him from attending, it merely meant that his attendance was voluntary and not compulsory as had been advised to him previously. On the other hand, however, his attendance at that conference was not in effect a self-inflicted injury. Moreover, he had no cause to expect when he decided to attend that he would perceive he was being shunned by the other people who attended. Despite his proneness to a "paranoid view" the Tribunal is reasonably satisfied that the reality was that the Applicant was shunned by others who were attending. The Applicant's attendance at that conference was a further aggravation of his longstanding and work-related depressive condition.
Subsequently the Applicant had a period off work because of depression, and the Tribunal finds on the evidence that during that time his condition improved but did not resolve. When he returned to work he found he had been locked out of his office and although he had not been advised directly, he became aware that an acting Director of Court Counselling had been appointed. The Tribunal finds on the evidence that this had a further profound effect on the Applicant's depression. The Tribunal also finds that this action was a management strategy, which, even if interpreted in the best possible light, was grossly inhumane and inept as a mechanism for dealing with any employee under any circumstances. Whether deliberate or unwitting, this had the effect of being almost overwhelming for the Applicant. The final straw was the handing down of Barblett J's report which alleged problems in the Newcastle Registry regarding compliance with the Court's domestic violence policy and which suggested the implementation of a wide range of strategies to remedy this. That report referred to the Applicant as having a "bunker mentality".
It was submitted for the Applicant that the best conclusion available from the evidence is that the Applicant has, at all material times, suffered from a depressive condition, however that condition might be diagnosed. The Applicant's condition has waxed and waned over the years, depending on the relative contribution of the various stresses, and has been contributed to by the factors already identified. The Tribunal agrees with this submission, and in conclusion so finds. The disciplinary action merely accelerated the work-related depressive condition and for a time caused the Applicant to be totally incapacitated for work. The disciplinary action did not cause a new condition – it merely aggravated and worsened an already serious depression which probably caused a period of major depression.
Redundancy package and s19(4)(f).It was submitted for the Applicant that Mr Glare wanted the Applicant "out", and his correspondence with the Chief Justice was in such terms to suggest his intention to use the Appeal to the Federal Court in order to do this.
In relation to the Applicant's allegation that he was forced into accepting the redundancy, it was submitted for the Respondent that there is no evidence that either the Applicant or his representative, Mr O'Neill, were forced to do anything. The terms "blackmailed" and "bludgeoned" do not reflect the reality of the evidence at the time he decided to take the redundancy. It was his state of mind and his medical health at that time that is relevant in considering whether he was coerced in some way and whether he was not well enough to make a decision, which is what he seems to be suggesting. In his memorandum to Mr Glare (T285) he said he had –
every intention of accepting a redundancy package as long as it is fair and reasonable. I had that intention to accept such a package before the CEO filed the Appeal to the Federal Court …
It was submitted for the Respondent that at the time he accepted the redundancy the Applicant was at retirement age (the Tribunal notes he was born on 27 March 1941 and that he retired in June 1996 at the age of 55 years). It was submitted that the Applicant had a long term plan to go to the Bar after retirement, which is what he did. The fact that he had had enough of the Court and was advised to retire, does not mean he was not well enough to make that decision. Neither his treating GP nor his treating psychiatrist gave evidence to support that conclusion. Additionally he had Mr O'Neill to represent his interests, and Mr O'Neill does not note in his statement what the Applicant suggests about being forced or coerced. It was submitted that the Tribunal should find that the Applicant was not forced, and that he was not medically ill so as to be incapable of making a decision, or indeed of incapable of continuing to work, albeit, at that time, in modified duties. The Applicant chose to take the package and he was able to negotiate the best terms consciously and actively.
The Tribunal also notes the reports of the CMO that management problems were underpinning the Applicant's problems at work and that these needed to be resolved. Indeed, by the time of the redundancy discussions, the Tribunal finds that the management problems were impossible to resolve, and the Applicant had no real alternative but to leave. To say that it was a "voluntary redundancy" belies the extremely negative work environment in which the Applicant's decision was made. The Tribunal finds that it occurred at a time when in effect the Applicant could not have continued any longer in his position as Director of Court Counselling and indeed he had been removed from the position and an acting Director was in place. He had been advised by Mr O'Neill to take the redundancy as Mr O'Neill had perceived it was in the Applicant's best interests and noted that management were "out to get him". The Tribunal also finds that at all material times the Applicant was mentally competent to make the decision that he made to accept the redundancy. In the words of Mr Glare to the Chief Justice the offer of the redundancy to the Applicant was "to focus his mind".
Soon after the "lockout" of the Applicant from his office and the publication of the Barblett report he began looking towards a redundancy package. Although there is some conflict in the evidence as to who initiated redundancy discussions, and in particular whether it was by or on behalf of the Applicant or whether it was first offered by management, there is clear evidence that it was actively encouraged by management even to the point of offering to withdraw the Federal Court appeal if the Applicant took the redundancy.
The Tribunal finds on the weight of the medical evidence that the Applicant is permanently unfit to return to his work as Director of Court Counselling or to any other position in the Court. Pursuant to s19(4)(f) of the Act the Tribunal finds that the Applicant's acceptance of the redundancy payment and his consequent failure to continue in his employment as the Director of Court Counselling was reasonable in all the circumstances.
The Tribunal was referred by the Respondent to the following passage in Casarotto v Australian Postal Corporation (1989) 17 ALD 321, at 329, in considering whether liability should be for an open or closed period –
I would find it hard to accept the submission that acceleration must invariably lead to an open-ended period of incapacity. Rather, it seems to me, that the question whether or not acceleration will lead to a fixed period or an open period will depend upon medical evidence related to the particular disease and will not arise as a matter of law.
It was submitted for the Respondent that an event such as going back to work and finding the lock changed on his door may have been a significant event at that time, but it must be seen in context. There was also an appeal in that same month from the decision of DAC to the Federal Court. It is significant that the original decision to terminate the Applicant's employment was still alive. The extent to which other events might cause a temporary aggravation is relevant, but it is temporary and not ongoing and permanent. It was submitted that although the Applicant now harbours feelings of resentment, hostility, anger and bitterness, these are not compensable.
The Tribunal finds on the evidence that the Applicant's feelings of resentment, hostility, anger and bitterness are integral to his depressive illness, which continues to plague him and at the time of the hearing it was ongoing. They arise directly from the litany of experiences he had while in the employ of the Court which, together, have caused his depressive condition. The issue is whether he has been fit for any sort of work at any time since he accepted the redundancy.
It was submitted for the Applicant that he was able to perform the Bar practice course. However, the Tribunal would have noted from observing him giving evidence that he could not focus on questions asked of him and was agitated and depressed. Taking into account the evidence of Mrs O'Donohue, it was submitted that the Applicant is not fit for any intellectual work. Furthermore, he has a variety of physical complaints, including neck symptoms, bowel symptoms, and problems with his hand. It was submitted that he is untrained for other types of work.
It was submitted for the Respondent that up to 2 July 1996, the Applicant continued to referee rugby. He had had a victory with DAC, he was making other decisions about his future, and there is no suggestion that his psychiatric condition played a part in his decision to stop being a rugby referee. It was a knee injury. This is relevant to the issue of incapacity. The Applicant successfully completed his Bar exams in December 1996. His claim for major depression was disallowed in October 1996. It was submitted for the Respondent that there is no evidence to suggest that the Applicant did not perform the tasks outlined for that course satisfactorily (exhibit 3). It was submitted that there was an inconsistency between being entitled to payment of compensation for major depression and successfully completing the Bar course. It was submitted that the litigation process might be serving to perpetuate the Applicant's incapacity. If the Tribunal accepts the evidence of Mrs O'Donohue that the Applicant is unable to work, the Respondent submitted that this might merely be the way he is presenting at the moment and that he might pursue employment after the litigation process had ended. It was submitted that the Applicant is trained for a wide range of activities. His evidence is that he has not made any attempt to get employment other than work as a barrister. This is simply a career choice and does not mean he is unable to work.
Having found already that the Applicant is totally incapacitated for his pre-injury work, the Tribunal now needs to consider whether the Applicant is able to perform any work. On his wife's evidence he is totally incapacitated for any work, he sleeps all day, he rarely goes to the chambers he has set up, and he does not undertake any activity. When Dr Lewin saw the Applicant in November 1997 he found him to be unfit for work as a psychologist or a barrister at that time. Dr Lambeth has not examined the Applicant since the end of 1997 as he discontinued his private psychiatric practice at that time. He considered that it was unlikely that the Applicant continues to suffer the effects of the major depression that he had in mid 1996. However he also said that in December 1997 the Applicant's depression "was not as severe … as in 1995". This would suggest that it had not resolved by the end of 1997, but that it had improved. Dr Lambeth considered that while the Applicant's depression, as he assessed it in December 1997, "would not necessarily" incapacite him for work, it would affect him in a position involving management or counselling. He also noted that the Applicant was susceptible to stress. Dr Dent did not consider the Applicant, given his level of depression, to be capable of working as a lawyer or as a counsellor. He considered the Applicant could work only on "a very part time basis", where the work was of minimal and preferably no stress, where he was well supported, and where the work was of an unambiguous nature. Additionally, he would need a lot of supervision.
The Tribunal notes the Applicant's longstanding intention to have a career at the Bar after he retired from the Court. He attended the Bar course only at the insistence of his wife. While intellectually he was able to cope with the work, and therefore pass the examinations, his experience in trying to cope with a few minor tasks of a barrister has demonstrated his unfitness for that work from a psychiatric viewpoint. His completion of the Bar course has been no more than a 'red herring' in the consideration of his fitness for work as a barrister.
Taking all that evidence into account, the Tribunal finds that from the time the Applicant took his redundancy payment he has not been fit for work as a counsellor or a lawyer, nor is he qualified for or experienced in any other work. The Tribunal is reasonably satisfied, from the way he presented at the hearing, that the Applicant would not be employable on the open market.
costsIn respect of costs pursuant to s67(8) of the Act the Respondent noted the non-compliance of the Applicant's solicitor with the Tribunal's Directions that continued throughout the pre-hearing process. It was submitted this non-compliance resulted in the loss of the Tribunal's time, and witnesses evidence was devalued by the failure to file and serve proper witness statements, undermining the opportunity for the Tribunal to make a proper independent objective assessment of witnesses.
Having made a decision in favour of the Applicant, pursuant to s67(8) of the Act the Tribunal may award whole or part of the costs of the Applicant. While the waste of the Tribunal's time is of obvious concern to the Tribunal, this cannot be taken into account in the award of costs. However, the costs incurred by the Applicant's solicitor in relation to those proceedings which were necessary in order to deal with the failure of the Applicant's solicitor to provide certain documents and advice about the facts and contentions of the Applicant to the Respondent, as part of the pre-hearing process, are able to be taken into account in the Order for Costs.
The Tribunal notes that the attendance of the Applicant's solicitor and/or counsel on the following dates arose out of the solicitor's failure to comply with the Tribunal's General Practice Direction and numerous informal requests by the Respondent and Tribunal staff, in order that the matter might proceed without prejudice to the Respondent –
Telephone Directions Hearing - 17 December 1998
Telephone Directions Hearing - 28 January 1999
Directions Hearing - 15 September 1999.
Each of the abovementioned Directions Hearings related to the obtaining of witness statements from lay witnesses being called on behalf of the Applicant and resulted in formal Directions being issued by the Tribunal about the service on the Respondent and lodgement with the Tribunal of witness statements. However, a number of witness statements remained in draft form and unsigned until the commencement of the hearing. Some were amended and signed at the time the witness gave evidence. Presumably it was this that precipitated the submissions for the Respondent in respect of costs at the conclusion of the hearing.
The Tribunal notes that all witness statements were served on the Respondent and lodged with the Tribunal in draft form on 15 September 1999. As this allowed the Respondent to understand the case that it had to answer, the Tribunal considers that in spite of the subsequent amendments, which did not prejudice the Respondent, the costs associated with the preparation of those statements should be allowed.
Therefore, the Tribunal orders that the Respondent pay the Applicant's costs, in accordance with the Tribunal's General Practice Direction, as agreed by the parties or taxed by the Registrar, but excluding any and all costs of and incidental to the three Directions Hearings identified (supra). Unfortunately, the Tribunal does not have power to order that the Applicant's solicitor carry those costs. That is an issue between the Applicant and his solicitor.
I certify that the 318 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, Dr M E C Thorpe, Member and Mr J Barber, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 13, 14, 15, 16, 17, 20 and 21 December 1999
Date of Decision 7 August 2000
Counsel for the Applicant Mr T Thawley
Solicitor for the Applicant Malouf Solicitors
Counsel for the Respondent Mr M McInnis
Solicitor for the Respondent Australian Government Solicitor
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