Osman and Australian Postal Corporation (Compensation) - [2024] AATA 2274

Osman and Australian Postal Corporation (Compensation) [2024] AATA 2274 (4 July 2024)
Division:GENERAL DIVISION
File Number: 2023/4732
Re:Ahmed Osman
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:4 July 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
..........................[sgd]..............................................
Senior Member A.A. Nikolic AM CSC
COMPENSATION – stress and anxiety condition – perceptions of bullying and harassment – whether disease arose out of or in the course of employment – whether employment contributed to disease to a significant degree – relevance of principles of issue estoppel and res judicata – inconsistent evidence – medical evidence – issues of credibility and reliability – whether disease or aggravation resulted from reasonable administrative action –decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Fair Work Act 2009 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Canute (2005) 148 FCR 232
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Comcare v Stewart (2019) 165 ALD 7
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Commonwealth of Australia v Snell (2019) 269 FCR 18
De Tarle v Comcare (2022) 178 ALD 339
Lim v Comcare (2017) 154 ALD 413
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Re Osman [2023] FWC 2830
Re Salters and Telstra Corporation Limited [2002] AATA 75; (2002) 66 ALD 798
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Sami and Telstra Corporation Limited [2012] AATA 41
Telstra Corporation v Hannaford (2006) 151 FCR 253
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Wuth v Comcare (2022) 289 FCR 464
SECONDARY MATERIALS
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, Washington, DC, American Psychiatric Association, 2022
Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 12^th ed, 2023)
REASONS FOR DECISION
4 July 2024
INTRODUCTION

Mr Ahmed Osman (“the Applicant”) initially lodged three applications with the Tribunal relating to psychological injury he claimed to have suffered during employment with the Respondent. Two of these applications arose from events occurring in 2021 and were settled by consent of the parties prior to the commencement of this proceeding. In both cases the Respondent made own motion reconsiderations[1] to grant the Applicant benefits for an adjustment disorder pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The remaining application relates to the Respondent’s denial of liability under s 14 of the Act for a stress and anxiety condition the Applicant claims was caused by workplace events on 2 March 2023.
[1] Pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘The Act’).
The Applicant was represented by Ms Serpell of counsel, instructed by Angela Sdrinis Legal. The Respondent was represented by Mr Ferwerda of counsel instructed by Moray & Agnew. The hearing was held over nine days commencing on 5 February 2024. Several adjournments were required after counsel for the Applicant became unexpectedly ill. After three final hearing days from 28 to 30 May 2024 the Tribunal reserved its decision.
For the following reasons the reviewable decision is affirmed.
BACKGROUND
The Applicant was born in Eritrea and came to Australia in 2014 when he was 28 years old. After undertaking approximately six months English tuition he found work in a meat processing factory but left after four months.[2] He commenced casual employment with the Respondent as a Mail Officer on or about January 2016, which progressed to part-time and eventually fulltime employment in 2019.[3]
[2] Exhibit A1, 2 [9]-[11].
[3] Ibid 2 [15]-[17]; Applicant’s Statement of Facts, Issues, and Contentions dated 3 November 2023, 3 [18].
While employed by the Respondent, the Applicant has made multiple complaints about aggression, intimidation, bullying, racism, and other unreasonable behaviours by certain co-workers and managers. These have resulted in several investigations by the Respondent, Comcare, and the Fair Work Commission (“FWC”). On 9 November 2023, following a six-day hearing in August 2023, the FWC handed down a 100-page decision relating to 41 allegations made by the Applicant. None of the allegations were ‘substantiated as “bullying at work” for the purposes of the FW Act’.[4] Among the complaints considered by the FWC were the events of 2 March 2023,[5] on which the current application is based.
[4] Fair Work Act 2009 (Cth) s 789FD(1)-(2).
[5] Re Osman [2023] FWC 2830, 1 [4], 90-6 (“FWC Decision”).
Key aspects of the background relevant to the remaining application now follow:
(a)In a compensation claim received by the Respondent on 21 April 2023,[6] the Applicant said he sustained the following injury: ‘Stress, Anxiety, and not Safe at Work’. He claimed to have first noticed symptoms on 2 March 2023[7] that were attributable to ‘Work related Desperation and Anxiety as a result of workplace bullying, harassment, Discrimination etc…’.[8] A letter from the Applicant’s solicitor dated 19 April 2023 referred to psychological injury arising from ‘a number of adverse actions that have been directed to our client…including most recently on 2 March 2023…’.[9] The incidents referred to on 2 March 2023 centre on the purported conduct of Mr David Harrison, one of the Applicant’s managers at Australia Post.[10]
(b)The Applicant stated in his compensation claim that he first sought medical treatment on 3 March 2023 from consultant psychiatrist Associate Professor Abdul Khalid (“Dr Khalid”). That claim is inaccurate in the sense that although Dr Khalid conducted an examination of the Applicant on 3 March 2023, this related to the denial of an earlier compensation claim. Dr Khalid had no knowledge of the events of the previous day until the Applicant disclosed this at their consultation.[11]
(c)The Applicant has not returned to work in the 15 months since 2 March 2023 under medical certificates issued by his general practitioner, Dr Raheleh Moradi Parshekooh.
(d)On 21 April 2023, the Respondent wrote to the Applicant confirming receipt of his claim.[12]
(e)On 11 May 2023, the Respondent denied the Applicant’s claim.[13] An Internal Review Officer of the Respondent affirmed this on 20 June 2023.[14]
(f)On 28 June 2023, the Applicant applied to the Tribunal for a review of the Respondent’s decision.[15]
[6] Exhibit R1, 16-20.
[7] Ibid 17.
[8] Ibid 18.
[9] Ibid 21.
[10] Ibid 22-3.
[11] Ibid 32-45.
[12] Ibid 28-9.
[13] Ibid 15, 58-63.
[14] Ibid 120-3.
[15] Ibid 8-14.
STATUTORY FRAMEWORK
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) establishes the Tribunal’s jurisdiction to review certain decisions as follows:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 43(1) of the AAT Act provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)       affirming the decision under review;
(b)       varying the decision under review; or
(c)       setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 64 of the Act authorises applications to the Tribunal in respect of a ‘reviewable decision’ as defined at s 60 and can be made by a claimant who has received a reviewable determination from Comcare pursuant to s 38.
Part VI of the Act describes a three-part decision-making and review process, consisting of: an original decision by an authorised person; a reconsidered determination by the same agency but usually a different decision-maker; and upon application to the Tribunal, review of a reconsidered determination.
Other relevant statutory provisions in the Act are:
(a)Section 14(1) of the Act provides that subject to Part II, Comcare is liable to pay compensation ‘in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’
(b)Section 4(1) of the Act provides that the words ‘ailment’, ‘aggravation’ and ‘impairment’ are interpreted as follows unless a contrary intention appears:
(i)‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). This may be a condition which ‘cannot be identified with the label of a recognised medical condition’, but having regard to the employee’s circumstances, it must be a condition that is ‘outside the boundaries of normal mental functioning and behaviour’.[16]
[16] Comcare v Mooi (1996) 69 FCR 439, 444.
(ii)‘aggravation’ includes acceleration or recurrence.
(iii)‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
(c)Section 4(1) also provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B of the Act:
5ADefinition of injury
(1)       In this Act:
injury means:
(a)       a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
…
5B      Definition of disease
(1)In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or    aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
(d)The term ‘reasonable administrative action’ at s 5A(2) of the Act is non-exhaustive.
(e)The distinct sub-sets of injury in s 4(1) of the Act encompass a ‘disease’, an ‘injury (other than a disease)’ and an ‘aggravation of a physical or mental injury (other than a disease)’. A disease requires that the ailment or aggravation of an ailment be contributed to in a material degree by employment. The Federal Court has held this must be ‘a material contributing factor, and not merely a temporal nexus’.[17]
(f)Section 6 of the Act is a facultative provision, indicating in a non-exhaustive fashion when an injury can be considered to have arisen out of or in the course of employment. The causation test has been elaborated upon by the High Court in Comcare v Martin at paragraph 45:[18]
… it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
[17] Wuth v Comcare (2022) 289 FCR 464, 486 [86] (Griffiths, Wheelahan and Snaden JJ), citing Comcare v Canute (2005) 148 FCR 232, 249 [67] (French and Stone JJ).
[18] (2016) 258 CLR 467.
ISSUES FOR THE TRIBUNAL
A threshold issue given the two consent agreements concluded just prior to the commencement of this proceeding, is the relevance of issue estoppel and res judicata. A hearing of the present matter based on the same or significantly comparable claims to those settled by consent, would be inconsistent with the objects of the Tribunal.[19] Mr Ferwerda cited Telstra Corporation v Hannaford[20] to the effect that the Act ‘allows for progressive and evolving decision-making’ to accommodate changing circumstances. He reinforced, however, that the two consent agreements do not establish the Applicant ‘was exposed to any behaviour whatsoever on 2 March 2023 or before’ that, which constitute bullying or harassment.
[19] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 518-20 [23]-[27] (French CJ, and Bell, Gageler, and Keane JJ); Commonwealth of Australia v Snell (2019) 269 FCR 18, 29 [40], 33 [55], 35 [60], 42 [78] (Allsop CJ, Reeves and Derrington JJ).
[20] (2006) 151 FCR 253, 273 [57] (Conti J).
It was not disputed by the parties that consent agreements can be finalised on a no liability/no contribution basis. The Tribunal is satisfied that the Applicant does not rely on the same factual matrix on which his two settled applications were based. Issue estoppel and res judicata therefore do not arise.
Issues arising from the remaining reviewable application are:
(a)Did the Applicant suffer an ailment or aggravation of an ailment within the meaning of the Act?
(b)If so, was that ailment contributed to, to a significant degree, by the Applicant’s employment such as to constitute a disease for the purposes of s 5B of the Act?
(c)If so, were any of the contributing factors the result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment, such that his claim should be excluded under s 5A of the Act?
EVIDENCE BEFORE THE TRIBUNAL
Documentary evidence
The following documents were taken into evidence during the hearing:
(a)Documents lodged by the Respondent, numbering 123 pages, pursuant to s 37 of the AAT Act;[21]
[21] Exhibit R1.
(b)Letter from the Applicant to the FWC dated 8 March 2023;[22]
[22] Exhibit R2.
(c)Six-page witness statement of Mr David Harrison dated 13 December 2023, attached to which is:
(i)a 100-page decision of the FWC dated 9 November 2023; and
(ii)email correspondence dated between 6 February 2023 and 1 March 2023 regarding forklift refresher training at the Respondent’s mail facility;[23]
[23] Exhibit R3.
(d)Three-page witness statement of Ms Katrina Eishold dated 13 December 2023;[24]
[24] Exhibit R4.
(e)Applicant’s 25-page statement dated 2 November 2023. It is noteworthy this statement was prepared when the Applicant had three review applications before the Tribunal, two of which subsequently settled by consent;[25]
[25] Exhibit A1.
(f)Ten-page report of occupational and forensic psychiatrist Dr Leon Turnbull;[26]
[26] Exhibit A2.
(g)Email from Mr Brett Watkins to the Applicant dated 17 January 2023;[27]
[27] Exhibit A3.
(h)Letter from Australia Post to the Applicant about a system error affecting his leave entitlement and action taken to remedy this in February 2024;[28]
(i)One-page letter from Mr Steve Dimitrievski dated 2 February 2023;[29]
(j)Bundle of emails dated 18 August 2022 to 16 January 2023, between: Communication Workers Union (“CWU”) Branch Secretary Mr Leroy Lazaro and Ms Katrina Eishold at Australia Post; and between Ms Eishold and the Applicant;[30]
(k)Two-page letter of general practitioner Dr Raheleh Moradi Parshekooh dated 24 January 2024;[31]
(l)Bundle of emails dated between 29 November 2022 and 21 December 2022 regarding the provision of a truck driving experience for the Applicant;[32]
(m)Four-page undated statement of Mr Jim Bassiliadis;[33]
(n)Two-page letter dated 19 February 2020 from social worker Mr Peter Carlon;[34]
(o)One-page statement of Mr Steven Mifsud dated 7 February 2023;[35]
(p)Two one-page letters dated 2 September 2019 and 19 December 2019 from general practitioner Dr Erin Gordon;[36] and
(q)One-page letter dated 7 December 2022 from social worker Ms Shireen Francis.[37]
[28] Exhibit A4.
[29] Exhibit A5.
[30] Exhibit A6.
[31] Exhibit A7.
[32] Exhibit A8.
[33] Exhibit A9.
[34] Exhibit A10.
[35] Exhibit A11.
[36] Exhibit A12.
[37] Exhibit A13.
Witnesses
Oral evidence was heard from:
(a)The Applicant;
(b)Occupational and Forensic Psychiatrist Dr Leon Turnbull;
(c)General Practitioner Dr Raheleh Moradi Parshekooh;
(d)Mr David Harrison;
(e)Ms Katrina Eishold; and
(f)Consultant psychiatrist Associate Professor Abdul Khalid.
Applicant’s evidence
The Applicant’s oral testimony was heard over three days on 5, 6, and 14 February 2024. He adopted his statement dated 2 November 2023 as true and correct.[38] The Applicant was provided with the services of an interpreter in the Arabic language, who he frequently relied upon. At Ms Serpell’s request, the Tribunal arranged for the Applicant to observe the proceeding remotely from an adjoining hearing room when his two managers at Australia Post gave oral evidence.
[38] Exhibit A1.
The Applicant’s oral evidence is summarised as follows:
(a)The Applicant has suffered a hearing problem since birth. He claimed this requires surgery but only affects him in quiet environments when a person speaks softly. He said co-workers are unaware of his hearing issue and insisted his hearing improves in noisy environments like Australia Post. He also insisted that he did not mishear or misinterpret what others said during the events of 2 March 2023. When asked about his frequent reliance on an interpreter during this hearing and whether language issues may have contributed to any misunderstanding, the Applicant denied this. He said an interpreter is needed only to explain ‘formal or technical’ words.
(b)The Applicant was asked about any impact marital problems had on his mental health given that he separated from his wife in approximately February 2022, which is about a year prior to the workplace incident his claim is based on. He responded ‘I don’t have much problem with marital issues’ and claimed it was workplace issues that prevented him from being able to ‘focus and pay attention’ on his wife and child, which caused the end of his marriage. He and his wife are yet to divorce, and he has visitation with their child that was cooperatively agreed.
(c)When asked about reporting arrangements at his workplace, the Applicant said his immediate team leader reports to Area Manager Mr David Harrison and that 90% of Mr Harrison’s role is ‘on the floor’ giving direct instructions to team leaders and mail officers like him. He has worked the same shift with Mr Harrison for several years, who he alleged has frequently singled him out. He gave an example of Mr Harrison purportedly telling him to return to his workstation until an appointed time for a break, while allowing other co-workers to go on their break early.[39] The Applicant agreed that Mr Harrison’s duties require him to observe activities in the workplace and allocate tasks to staff. He agreed that if Mr Harrison required him to work at a particular location, he was obliged to follow that direction.
[39] Ibid 10 [59].
(d)The Applicant claimed he never ‘refused to do any kind of job’ when instructed by Mr Harrison and considers himself a ‘very polite person’. He denied screaming or shouting at others in the workplace, stating that only a ‘crazy person would do that’. He denied that Mr Harrison previously asked him to lower his voice when interacting with others. The Applicant claimed there were many occasions when other co-workers or managers screamed or shouted at him or approached him in a ‘very aggressive way that was not acceptable’. He recalled reporting these incidents to the CWU and ‘boss’ of the managers involved.
(e)The Applicant claimed he ‘never received any support’ from Mr Harrison who ‘never treated [him] in an acceptable way’. He could not recall a time when his relationship with Mr Harrison was positive. The Applicant said he complained to Mr Harrison’s supervisor, Ms Katrina Eishold, but claimed she was not a ‘helpful person…never supported [him] in anything and just made [his] problems worse [or] created more problems’. He gave an example of a leave issue she failed to assist him with, causing the cancellation of international travel arrangements. He also alleged that on 16 January 2023, Ms Eishold told him that of her 300 staff, he is a ‘different person’, while purportedly shaking her right hand near her head. The Applicant said he understood this to convey he was ‘a crazy person or had mental challenges’. He immediately reported Ms Eishold to her supervisor, Mr Brett Watkins, complained to the CWU, and stated he ‘never ever wanted to interact with [her]’ again. He recalled that after this Mr Watkins directed Ms Eishold not to approach him unless he had a support person present, but claimed she contacted him via personal email, which caused him to tell her: ‘Don’t send me emails or contact me’. The Tribunal notes the only emails in evidence sent to him by Ms Eishold were to his Australia Post work email address.
(f)The Applicant said Mr Watkins promised to listen to his concerns and ‘accommodate’ him, but nothing came of this. When asked if the workplace arrangements resulting from his complaints impacted the ability of managers to discuss issues or give work directions, the Applicant claimed it was the managers who ‘created the issues or gave wrong feedback’. He said it was their failures to respond effectively to his concerns that caused him to mistrust them.
(g)During re-examination, Ms Serpell asked the Applicant about another manager he reported to in the past, Ms Mary Long, and whether his answer about not receiving help from managers included her. The Applicant said Ms Long also ‘wasn’t a helpful person’. When Ms Serpell drew his attention to evidence about Ms Long advocating on his behalf to restore him to the forklift roster, the Applicant agreed she assisted him on that occasion, but said he ‘didn’t feel that [he was] comfortable’ going to her because she told him he had to conform to directions from Mr Harrison and other supervisors. The Applicant also referred to another Team Leader called Marjorie Hollifield, who asked him to attend a meeting with Mr Watkins to discuss workplace issues but said he didn’t ‘feel comfortable’ doing so and wanted a support person called Solomon to accompany him. When asked by Ms Serpell if Solomon supported him, the Applicant said Solomon was a good person and they spoke the same language, but ‘wasn’t in a position to help [him]’.
(h)The Applicant denied the claims in Ms Eishold’s statement that other workers formally complained about how he spoke to them or that he engaged in inappropriate behaviours like shouting and gesticulating in an aggressive manner. The Applicant also denied Ms Eishold’s claim that he got ‘worked up about issues’. He instead claimed to be ‘one of the most beloved people’ at his workplace, who others referred to as ‘champion’ because they like him so much.
(i)When asked by Mr Ferwerda about allegations of bullying and harassment made in his FWC application, the Applicant responded: ‘it’s not many…It was not the whole story that I experienced…’ When asked if the 41 allegations he raised were the most serious he could recall, the Applicant responded: ‘I couldn’t say serious or not serious – it was the best I could remember and get evidence about’. When asked about the Commissioner’s decision that none of the 41 incidents constituted bullying, including the events of 2 March 2023, the Applicant attributed this to being self-represented. He claimed to have only read the first ten pages of the FWC judgement and did not know what the Commissioner decided about his allegations relating to 2 March 2023. When asked if he got a fair hearing at the FWC, the Applicant responded: ‘I couldn’t say fair, but it was reasonable.’ He said: ‘At least I get a bit of relief’ by taking these issues ‘off my chest’ and ‘tell [the FWC that the managers] treated [him] in this wrong way and unfairly and unreasonably’.
(j)The Applicant said he drove gas and electric forklifts and used other heavy machinery frequently as part of his duties. He recalled an approximately two-month period when he could not drive forklifts or operate power lifters because he was taking sleeping medication. He could not recall when this was and said upon ceasing the medication it took about a year for him to again be rostered to drive forklifts. The Applicant claimed there is no need to for forklift drivers at Australia Post to undertake refresher training unless they are involved in an ‘accident or incident’ or have been off duty for a ‘big gap’ of around six months or more.
(k)The Applicant’s evidence about the events of 2 March 2023 is now summarised:
(i)The Applicant said in the period leading up to the 2 March 2023 incident he had returned to work full time in his normal duties but continued to take a 30 mg daily of an antidepressant medication. He recalls driving a forklift until 1 March 2023 and his complaint centres on being told he could not drive a forklift on 2 March 2023. He said this direction is a continuation of the bullying, harassment, and racism he has experienced in the workplace.
(ii)The Applicant was asked about an email dated 1 March 2023 from Learning and Development (“L&D”) staff that he was 51 days overdue for gas forklift refresher training. It was put to him this was the reason he was directed to work inside but was not precluded from driving the smaller electric forklifts used exclusively indoors. The Applicant denied being told he could drive any forklifts that day and insisted he was taken off driving all forklifts ‘for no reason’. He said Mr Harrison’s direction was conveyed via team leader Mr Nabil Awad, who was the Applicant’s immediate supervisor, to the effect that he ‘was not to drive a forklift and had to stay inside the building’.[40] He said this made him very upset him and, because he did not feel comfortable talking with Mr Harrison alone, went to see Mr Jerry Zaldarriaga, the CWU representative and Mr Steven Dimitrievski, a health and safety official. They agreed to accompany him to Mr Harrison’s office. The Applicant said he avoided talking with Mr Harrison alone for about two years prior to 2 March 2023 because he did not believe he would ‘get fair treatment or … the right answer’. He claimed that he always insisted on having a support person present during discussions with Mr Harrison.
[40] Exhibit A1, 20 [108].
(iii)The Applicant said that as soon as he, Mr Zaldarriaga, and Mr Dimitrievski entered Mr Harrison’s office, Mr Harrison immediately ‘stood up and started shouting in a very loud voice’. He claimed that Mr Harrison ‘was out of control, physically even’ and there was ‘no chance for any kind of conversation…he just said “no”…it was simply a fighting situation – not a discussion’. The Applicant said Mr Harrison refused to provide him a copy of the L&D email and would not give him a written direction about being taken off forklift duties by stating the word ‘no’ very loudly. The Applicant claimed Mr Dimitrievski ‘didn’t accept’ Mr Harrison’s reason for asking the Applicant to work inside and was ‘arguing’ about this. He contextualised the mood of the meeting as a ‘fight or a problem because it was very loud.’ The Applicant said it was his ‘right’ to ask for these things and refusal of his requests made him immediately leave the meeting. When asked if he subsequently sought a copy of the email from L&D or asked Mr Zaldarriaga or Mr Dimitrievski to source it for him, the Applicant said he did not.
(iv)When asked if he recalled Mr Harrison telling Mr Zaldarriaga and Mr Dimitrievski that the Applicant was not suspended, had not done anything wrong, and there may have been a miscommunication, the Applicant denied this occurred. When referred to the joint statement by Mr Zaldarriaga and Mr Dimitrievski in which they stated: ‘We explained to Ahmed…there was a misunderstanding in the instruction communicated to him by Nabil and David’,[41] the Applicant responded: ‘I don’t recall’. The Applicant agreed that if Mr Zaldarriaga and Mr Dimitrievski confirmed they told him this in their oral evidence, he would accept it, but insisted: ‘It wasn’t just about me operating the forklift, it was about the treatment and behaviour’.
[41] Exhibit R1, 77.
(v)The Applicant insisted Mr Awad told him he was ‘taken off the forklift’ without reason and inferred from Mr Awad’s ‘body language’ that he was ‘not happy’ conveying Mr Harrison’s direction. The Applicant disagreed with Mr Ferwerda’s contention that Mr Harrison explained the overdue gas forklift refresher training issue or stated the Applicant could still operate an electric forklift inside. When asked by Mr Ferwerda if he had any objection to refresher training, the Applicant said he did not, but because of his ‘knowledge and experience’ as an Australia Post employee, he insisted there was no justification to take him off forklift duty. He referred to completing refresher training five months earlier on the ‘electric forklift, double power lifter’ and other equipment. When asked who at Australia Post requires employees to do refresher training, the Applicant said he did not know, but said it was conducted by training staff from the Port Melbourne facility.
(vi)Within a minute or so of leaving Mr Harrison’s office, the Applicant said Mr Harrison called out to him stating: ‘Ahmed – can you do me a favour and go and help Albert on airside’. The Applicant said he agreed by replying ‘no problem’ then left to join Albert. About 15 minutes later, however, he claimed to have observed Mr Harrison ‘checking’ on him from what he estimated was 20 metres away. The Applicant said he objected to the way Mr Harrison was observing him, stating: ‘He looked at me in the eye and I felt like as if he’s telling me “I’m watching you – I’m looking at you”’. He said this made him feel immediately ‘psychologically unwell, tired’, and unable to remain at work.
(vii)The Applicant sought out Mr Zaldarriaga and Mr Dimitrievski to tell them he was going home and asked them to report these events to the CWU Secretary. He claimed Mr Harrison followed him as he was preparing to go home, approached ‘very close about a metre’, and told him to go to a ‘strange place’ upstairs where Production Manager Ms Katrina Eishold wanted to speak with him. When put by Mr Ferwerda that Mr Harrison was asking the Applicant to go to the canteen area upstairs, which was a familiar place, the Applicant denied this was the case.
(viii)The Applicant insisted that Mr Harrison approached inside his ‘personal space’, causing him to fear imminent physical attack. He claimed Mr Harrison looked like a ‘drunk person’, or someone affected by drugs, whose ‘eyes and his face were red’ and ‘do not seem normal’, which made him ‘feel terrified’. He said Mr Harrison screamed at him ‘loudly in a completely frightening way’, which ‘everyone [within] 50 kilometre[s]’ could hear and caused him to be very scared. When asked by Mr Ferwerda if he considered the interpreter sitting near him in this proceeding was invading his personal space, the Applicant said the interpreter is a ‘safe man’ who is not trying to ‘fight’ with him or ‘attacking’ him. When asked about references in Dr Khalid’s report to the Applicant’s claims that Mr Harrison approached him five times on 2 March 2023, the Applicant said this occurred on three occasions rather than five.
(ix)The Applicant said he later asked Mr Zaldarriaga and Mr Dimitrievski if Mr Harrison could be referred for ‘drug and alcohol tests’, and claimed they undertook to speak with CWU Secretary Mr Leroy Lazaro about this. When asked if he thought it was appropriate for an Australia Post employee to allege their Area Manager was drug or alcohol affected and should be tested, the Applicant claimed it was. When challenged that an uncorroborated claim of this nature was inappropriate and may be considered damaging to Mr Harrison’s reputation and managerial position, the Applicant said he expressed his ‘personal feeling’ based on observing Mr Harrison’s conduct. He said Mr Harrison’s: ‘presentation…voice…his eyes, and his face were red…I could be wrong, I could be right, but it’s the way I saw him’.
(x)The Applicant recalled becoming alarmed by Mr Harrison’s sudden and unexpected appearance within his personal space, which caused him to immediately step back to create separation. He demonstrated how he held out his hand to prevent Mr Harrison coming closer, told Mr Harrison to leave him alone, and said he intended staying where he was so colleagues witnessing these events could assist him if necessary. He denied shouting at Mr Harrison and said his voice was only ‘raised’. He claimed that Mr Harrison’s conduct, however, was such that other employees within a 50-metre radius ceased work and were watching what was happening.
(xi)The Applicant denied that Mr Harrison asked him to calm down during this encounter or stated he was unable ‘to get through’ to the Applicant. When put by Mr Ferwerda that Mr Harrison never followed him, or moved stealthily into his personal space, or yelled in the Applicant’s presence, or behaved as if he wanted to make physical contact, the Applicant insisted this was ‘not correct’. He said Mr Harrison was ‘following [him] all the time’, ‘tracked’ him down, entered his personal space without warning, and ‘shouted in [his] face’, leading the Applicant to believe he was about to be physically attacked. He said he was ‘shaking and scared’ and called the Australian Federal Police (“AFP”), following which four officers arrived. He told the officers he feared ‘physical harm’. The Applicant agreed that after making enquiries, the AFP informed him the situation did not require police attendance, was a management matter, and left. When asked by Mr Ferwerda if the AFP also told him there was no threat to his physical safety, the Applicant responded: ‘I can’t remember’. When referred to the joint statement of Mr Zaldarriaga and Mr Dimitrievski, in which they state: ‘The Police also expressed to Ahmed that the whole situation doesn’t involve any safety threat to himself and to anybody’,[42] the Applicant responded: ‘I don’t remember exactly these words’. He insisted that Mr Harrison ‘disturbed’ him and put him in a ‘sensitive situation’. When asked if he accepted the AFP advice that there was no risk to his personal safety, the Applicant said he did not. When asked whether he believed police would have left without taking any action if they believed he was at risk of harm, the Applicant responded: ‘I don’t know’.
(xii)Although the Applicant said he eventually went upstairs to a conference room, this was only when Mr Dimitrievski agreed to accompany him. He recalled being asked questions by Ms Eishold but claimed his body was ‘shaking’, his ‘temperature was very high’, and he felt too unwell to respond. He recalled telling Ms Eishold: ‘please stop – don’t ask me – I can’t – I’m not okay to tell you anything’ and went home.
(xiii)When asked if on reflection he felt he did anything wrong on 2 March 2023 or could have handled the situation better, the Applicant denied doing anything wrong and claimed he ‘tried to be calm’ and remain in control. He attributed blame for what occurred on Mr Harrison, claiming he: ‘obstructed [him] … while … leaving the property’ and intended to physically harm him if he tried to leave.
(l)The Applicant said despite persistent and prolonged inappropriate treatment at work, he only continued to work for the Respondent to ‘put food on the table’. He was unable to find another job that would allow him to leave what he considers is a ‘toxic’ work environment. He had looked for alternative employment in the year prior to the 2 March 2023 incident, including with a public bus company, but was unsuccessful. The Applicant said Mr Dimitrievski organised a driving experience at the Respondent’s Transport Centre in January 2023, but claimed Ms Eishold ‘cancelled it’ without warning. He believes this also constituted intentional targeting and harassment. The Applicant recalled Ms Eishold rescheduling the driving experience soon after but likened her actions to ‘slapping a baby’ and then giving it a ‘lolly to make it happy’. The Applicant said while he was in the process of deciding whether to take up an internal transfer to a transport job, he ceased work for medical reasons after the 2 March 2023 incident. Since the March 2023 incident he claimed a bus company sent him a job offer in about June 2023 via email and a text, but he did not reply because of his mental health problems. He later completed a driving test with another company but did not get a reply.
(m)Since the events of 2 March 2023, the Applicant said he has experienced sleeping issues. He claimed to have only told Dr Khalid on 3 March 2023 that his ‘sleep is okay’ by comparison with past times when workplace problems caused him not to sleep for up to five days at a time. The Applicant could not recall what he said to Dr Khalid about sleep impact arising from the 2 March 2023 incident a day earlier. He agreed, consistent with Dr Khalid’s report, that he still goes swimming at the pool most days, which helps him sleep.
(n)The Applicant recalled seeing a psychologist from about 2019 until December 2022 and saw a social worker. He visits his general practitioner, Dr Parshekooh, every two or three weeks and was referred by her to a psychiatrist after the events of 2 March 2023. He claimed to have been unable to do so because ‘they’re fully booked’. He recalls asking the Respondent to organise this for him but said they only referred him to their contracted counselling provider, which is insufficient for his needs.
[42] Ibid 78.
Evidence of Mr Steve Dimitrievski

Mr Dimitrievski adopted his statement dated 2 February 2023,[43] and a joint statement with Mr Zaldarriaga dated 6 March 2023, as true and correct. He was asked to prepare these by Facility Manager Ms Katrina Eishold. Mr Dimitrievski said he is still a Health and Safety Representative and has worked the same shift at Australia Post with the Applicant since approximately early 2023.
[43] Exhibit R1, 77-8.
Mr Dimitrievski recalled being approached by the Applicant on 2 March 2023 who stated he was removed from driving a forklift that day because of refresher training. Mr Dimitrievski said L&D staff schedule this training for forklifts and it takes about an hour to complete. He is routinely informed by line managers which employees need to do it and Team Leaders then notify employees of their allocated training times.
Mr Dimitrievski said he agreed to accompany the Applicant to Mr Harrison’s office to clarify why the Applicant was taken off forklift duties. Mr Dimitrievski recalled Mr Harrison appeared ‘irritated’ and his manner could not be construed as ‘welcoming’, which he thought was because the Applicant arrived with a three-person delegation to discuss a work direction. Mr Dimitrievski said at no stage did Mr Harrison shout or act like he was out of control. He disagreed with the Applicant’s characterisation of the meeting as a ‘fighting situation’.
When asked by Mr Ferwerda if there was any occasion on 2 March 2023 that he heard Mr Harrison yell at the Applicant, Mr Dimitrievski said he did not. He said Mr Harrison’s tone was ‘firm’, but he did not observe ‘shouting or screaming’ on any occasion. Mr Dimitrievski denied the Applicant’s claim that he had a heated conversation with Mr Harrison or that the office discussion could be characterised as ‘fighting’.
Mr Dimitrievski could not recall any discussion in Mr Harrison’s office about the Applicant being suspended. He did recall the Applicant stating he wanted a copy of the email from L&D and a written direction from Mr Harrison about not being permitted to drive a forklift that day. Mr Harrison refused this, but Mr Dimitrievski could not recall how it was expressed or the reason given. Mr Dimitrievski said the Applicant became ‘upset’ and left the meeting. Mr Dimitrievski said he could have assisted the Applicant in getting a copy of his gas forklift currency status from L&D staff, but the Applicant did not ask him to do so.
Mr Dimitrievski said he is unfamiliar with a refresher training module relating to gas forklifts but accepted that the effect of the email from L&D was that the Applicant needed to undertake gas forklift refresher training.
Mr Dimitrievski recalled that after the Applicant left the meeting, and during a continuing conversation with Mr Harrison, there was discussion about the Applicant being listed as ‘ad hoc’ on the work roster that day. He explained this meant the Applicant was not exclusively tasked with forklift driving and could be deployed to any work task. Mr Dimitrievski said it became apparent to him following the discussion with Mr Harrison, and with input from Mr Awad, that there may have been a misunderstanding about how Mr Harrison’s direction was conveyed. Mr Dimitrievski said he, Mr Awad, Mr Harrison, Ms Eishold, and Mr Watkins, ‘had always tried to assist’ the Applicant.
Mr Dimitrievski said soon after the Applicant left, he and Mr Zaldarriaga were standing with Mr Harrison outside his office. The Applicant was about 30 or 40 metres away. It is a noisy work area and he recalled Mr Harrison stating to the Applicant in sufficient volume to get his attention: ‘Ahmed, can you do me a favour and help Albert on airside’. Mr Dimitrievski recalled the Applicant responding ‘OK’ and headed in that direction. He said the request from Mr Harrison was not made in an aggressive way. Soon after, Mr Dimitrievski said the Applicant called him by telephone and stated he was going home. When asked if he gave any reason, Mr Dimitrievski said it was because the Applicant ‘didn’t want to be under [Mr Harrison’s] supervision and insisted he was going home’. Mr Dimitrievski said he went to the Applicant’s location and reiterated there may have been a misunderstanding about Mr Harrison’s initial direction, but the Applicant ‘was still adamant to go home’. They walked together to see Mr Zaldarriaga, where the Applicant again stated he was leaving and wanted to speak with the State Secretary of the CWU.
While close to the facility entrance, Mr Dimitrievski recalled Ms Eishold and a CWU Shop Steward called Ursula being present, following which Mr Zaldarriaga joined them. He recalled Mr Zaldarriaga telling the Applicant there may have been a misunderstanding at the morning huddle, but the Applicant insisted on leaving. He said the Applicant was upset and Ms Eishold was trying to ‘calm him down’. She encouraged him to go to a private room upstairs for a discussion. He recalled the Applicant claiming that he ‘feared for his safety’ but Mr Dimitrievski said ‘it wasn’t clear’ to him why he said this. The Applicant eventually agreed to go to a private room upstairs with him, Mr Zaldarriaga, and Ms Eishold, and they were in the room for a few hours.
Mr Dimitrievski recalled four AFP officers arriving and asking the Applicant about the basis of his claim that there was a threat to his personal safety. He said the AFP spoke to him for about 40 minutes and took notes. Mr Dimitrievski said the police eventually returned to inform the Applicant there was no threat to his safety and left. He said Ms Eishold asked the Applicant how she could help him feel safe and offered to reallocate him to a different area with a different manager. Mr Watkins also came to see the Applicant and offered him work in another Australia Post facility, which the Applicant said he would think about.
Mr Dimitrievski said he did not consider that Mr Harrison’s work direction on 2 March 2023 regarding gas forklift refresher training, or any other conduct that day, constituted bullying, harassment, racism, or other unacceptable workplace behaviour. He said there was no occasion that day when he observed Mr Harrison following the Applicant, or acting in a way that gave the impression that he intended to physically harm the Applicant.
Evidence of Mr Jerry Zaldarriaga
Mr Zaldarriaga adopted the joint statement he prepared with Mr Dimitrievski as true and correct.[44] He recalled Ms Eishold asking them to prepare it immediately after the events of 2 March 2023. Mr Zaldarriaga said he has worked for Australia Post for approximately 23 years and was a CWU union shop steward on 2 March 2023.
[44] Ibid.
Mr Zaldarriaga recalled that upon entering Mr Harrison’s office on 2 March 2023, Mr Harrison appeared ‘angry’ because the Applicant had brought the ‘HSR and union rep to discuss this issue’. When put to him this was inconsistent with Mr Dimitrievski’s evidence, who said Mr Harrison was not angry nor aggressive, Mr Zaldarriaga responded: ‘That’s my interpretation’. He did not recall, however, that Mr Harrison ever yelled or shouted during the meeting on 2 March 2023. Mr Zaldarriaga recalled that during the office discussion ‘only the gas forklift was mentioned – just until he did refresher training’. Mr Zaldarriaga said the refresher training would have been completed the same day.
Mr Zaldarriaga said after Mr Harrison refused to provide the Applicant with the L&D email, the Applicant became upset and left. He recalled that after the Applicant left, there was a discussion about the Applicant not being rostered to drive the forklift that day and therefore could be used for any work task.
Mr Zaldarriaga recalled the Applicant agreeing with Mr Harrison’s direction to go and assist another employee at the airside section of the facility. He never saw Mr Harrison follow the Applicant at any time and has no recollection of Mr Harrison ever coming near the Applicant or their group. He could not recall an incident, claimed by the Applicant, where Mr Harrison’s undetected approach caused the Applicant to jump out of his chair. He agreed that if something like this had happened, he would have recalled it. Mr Zaldarriaga said he explained to the Applicant that he was ‘not rostered to drive the forklift that day’ and there had likely been ‘miscommunication’ in the advice given to him after the morning huddle. The Applicant ‘was not happy with the explanation and wanted to escalate the matter to [CWU State Secretary Mr] Leroy [Lazaro]’. Mr Zaldarriaga said the Applicant did not give a reason for being unhappy with the explanation.
Mr Zaldarriaga said he was ‘not sure’ what caused the Applicant to decide to go home after initially agreeing to Mr Harrison’s request to assist another worker in the airside section of the facility. He said there was ‘no particular incident’ and thought it was because the Applicant ‘was not comfortable’ working under Mr Harrison’s supervision and claimed Mr Harrison told ‘him in an aggressive manner to go upstairs and see Katrina’. When asked if he observed Mr Harrison engaging in any aggressive conduct, Mr Zaldarriaga responded: ‘No’. When asked how it was that the Applicant eventually agreed to go upstairs, Mr Zaldarriaga said Ms Eishold requested this. He and Mr Dimitrievski accompanied the Applicant and Ms Eishold upstairs.
Mr Zaldarriaga said he did not see any conduct by Mr Harrison on 2 March 2023 that could be regarded as bullying, harassment, racism, or a threat of violence. He said the meeting in Mr Harrison’s office was ‘not a fighting situation’ and considers the email from L&D about the Applicant’s gas forklift refresher training was a ‘reasonable’ basis for Mr Harrison’s direction. Contrary to the Applicant’s claim, Mr Zaldarriaga did not think Mr Harrison was under the influence of any substances. He recalled Ms Eishold trying to assist the Applicant after the AFP attended the facility. This included offering to relocate him to another role under a different supervisor. He recalled that Mr Watkins also spoke with the Applicant and tried to help him. Mr Zaldarriaga recalled that the AFP concluded ‘the whole situation didn’t involve a safety threat to [the Applicant] or anyone else in the workplace’.
Mr Zaldarriaga said he ‘mentioned’ the events of 2 March 2023 to CWU Secretary Mr Lazaro. When asked if the CWU took any action, he replied: ‘Not that I know of – there was no follow up from Leroy’. Mr Zaldarriaga said this may have been because the Applicant was on protracted medical leave since 2 March 2023.
Evidence of Mr David Harrison
Mr Harrison gave oral evidence under affirmation and adopted his statement dated 13 December 2023 as true and correct.[45] A summary of his oral testimony follows:
[45] Exhibit R3.
(a)Mr Harrison recalled trying to help the Applicant in the past. This included after being asked by a union delegate on 1 March 2023 to resolve a pay issue for him. Mr Harrison said the Applicant accompanied him to his office and, while he was unable to immediately settle the pay issue, he referred it to administrative staff. Mr Harrison said he approached the Applicant in the lunchroom later that day to tell him the matter was fixed. He also recalled helping the Applicant by signing off on leave relating to the needs of his daughter or when the Applicant was late to work. He also signed multiple personal leave applications for the Applicant in which ‘lack of sleep’ and ‘anxiety’ were cited. Mr Harrison said he was aware when the Applicant became a new father and ‘went out of [his] way to give him the time he needed’ and said: ‘anything Ahmed asked for wasn’t an issue’. Mr Harrison could not recall any previous indicator the Applicant was uncomfortable in his presence.
(b)Mr Harrison said the Applicant ‘told us he has hearing issues’ and because there is loud machinery at the workplace ‘we all talk louder’ in his presence. He disagrees with the Applicant’s recollections about what occurred on 2 March 2023 and said the events of that day are ‘completely different to his statement’. He considers the Applicant is a good worker who likes to work by himself on the dock outside, and ‘does an exceptional job’. Mr Harrison said the direction given to the Applicant on 2 March 2023, that he had to work inside where electric forklifts exclusively operate, was only until the Applicant completed counterbalance refresher training on the larger outside gas forklifts. Mr Harrison said this direction was conveyed through the Applicant’s immediate team leader, Mr Nabil Awad, at the morning huddle. This is a normal part of Mr Harrison’s managerial role.
(c)Mr Harrison recalled a previous period when the Applicant could not drive forklifts because of medicine prescribed to him. He said forklift drivers ‘can’t be on any medication’ that affects their ability to drive a forklift and there is ‘zero tolerance’ regarding alcohol. He is unaware if the Applicant is on any medication, and it is the Applicant’s responsibility to notify the workplace about this.
(d)Mr Harrison said the requirement for refresher training is unexceptional and he was surprised to see the Applicant, accompanied by Mr Dimitrievski and Mr Zaldarriaga, appear at his office soon after the morning huddle. He recalled stating: ‘Ahmed you’re here with an entourage – what’s going on’? He said the Applicant claimed he was suspended, which was incorrect. Mr Harrison said he did not use any words on 2 March 2023 that could be interpreted in this way. He recalled saying the Applicant had to work inside until counterbalance refresher training was completed on the larger outside forklift. Mr Harrison explained there are five forklifts at the facility and 11 forklift drivers. He rotates staff whenever possible and said on 2 March 2023 the Applicant was assigned to ‘ad hoc’ duties and ‘didn’t have a position’ on a forklift. This meant he could be deployed to any task at the facility.
(e)Mr Harrison said the Applicant tried to ‘grab’ the L&D email off his desk, but he did not permit this because it contained personal information of other employees at other Australia Post facilities. Mr Harrison claimed he told the Applicant to seek training information from L&D but, to his knowledge, the Applicant had not done so, nor accessed it from his employee online ‘dashboard’.
(f)Mr Harrison recalled that while in his office the Applicant requested a ‘written direction’ regarding his tasking for that day, which he refused. When asked by Mr Ferwerda how common it is for staff to ask for a written direction regarding daily tasking, Mr Harrison replied: ‘They never do’.
(g)After the Applicant left his office, Mr Harrison considered that any issue was resolved, and it was accepted that any confusion about tasking may have resulted from miscommunication. Mr Harrison said he called out to the Applicant as he walked away from his office to assist another employee called Albert on the ‘airside’ of the facility. He recalled the Applicant responding: ‘Not a problem’, which Mr Harrison said affirmed his perception that the earlier issue was resolved. Mr Harrison said he got a call soon after from Albert and Albert’s team leader to the effect that the Applicant ‘had done nothing’ and ‘walked off’ in protest ‘about being suspended on the forklift’. Mr Harrison recalled telling Albert this was incorrect and went to locate the Applicant. When asked by Ms Serpell if he was angry at the Applicant, Mr Harrison denied this, said he has about 90 people he works with, and considered the Applicant’s behaviour ‘out of character’.
(h)Mr Harrison recalled finding the Applicant at the ‘end of line 5’ and noted he was standing with his arms crossed. Mr Harrison asked him if ‘everything is OK’, following which the Applicant started ‘screaming’ about being harassed and shouting to those nearby that ‘everybody is my witness’. Mr Harrison said he considers himself a ‘kind-hearted and good-natured’ person. He felt ‘flustered and upset’ by the Applicant’s behaviour. He asked the Applicant to ‘go upstairs’ to the canteen because his conduct was disrupting other workers, and thought this may defuse the situation. When the Applicant refused and continued to shout, Mr Harrison told him he would refer the issue to Ms Eishold.
(i)Mr Harrison said on exiting the lift after attempting to see Ms Eishold, he saw the Applicant talking with Mr Zaldarriaga and a union delegate called Ursula some distance away but did not approach them. He disagreed with the Applicant’s evidence that the Applicant hid from him or ‘got up suddenly’ and was ‘shocked’ to see Mr Harrison approach him. Mr Harrison also responded ‘definitely not’ when asked if he ‘eyeballed’ the Applicant while he was on the airside of the facility. Mr Harrison said it was not possible to do so because this is a ‘very long distance’ with lots of machinery in between and about 100 staff working in this area.
(j)Mr Harrison agreed he has a firm manner but said he is not ‘pigheaded’ and listens to what people say. When asked if he ever ‘shouted’ at the Applicant, Mr Harrison recalled doing so ‘one time’ about six months prior to the events of 2 March 2023. He recalled being on a gantry and observed the Applicant talking with another employee rather than attending to machinery on which the lights were flashing. He recalled shouting out to both employees: ‘Hey guys the lights are flashing – look after the bags and stop talking’. Mr Harrison emphasised that this comment was directed at both workers. When asked if he ever gave the Applicant a direction in an aggressive way, Mr Harrison replied: ‘Definitely not’. When asked by Mr Ferwerda if he ever displayed any verbal or physical indication to the Applicant that he wanted to fight or make physical contact with him, Mr Harrison responded: ‘100% no’.
(k)During cross-examination, Mr Harrison said multiple claims made by the Applicant ‘did not happen’. When put by Ms Serpell that the Applicant adopted a process of expressing concerns through Mr Awad to avoid contact with Mr Harrison, Mr Harrison denied this: ‘No – Nabil never spoke to me about any issues [relating to the Applicant]’. Mr Harrison also stated that the five managers above him ‘have never spoken to [him] about a dispute with Mr Osman’.
(l)When asked if he was aware of any incident in the workplace carpark where someone tried to run the Applicant over with a car, Mr Harrison said he was not. He was aware of a past occasion, however, when the Applicant was observed speeding in the car park. When asked if he ever took counselling action relating to the Applicant, Mr Harrison recalled speaking with him on one occasion about using obscene language regarding another staff member.
(m)During re-examination, Mr Harrison said he has made three statements responding to the Applicant’s allegations about mistreatment in the workplace. This includes to the FWC. He said the events of 2 March 2023 were considered as Allegation 41 in the Applicant’s FWC claim, which was found to be unsubstantiated.
Evidence of Ms Katrina Eishold
Ms Eishold gave oral evidence under affirmation and adopted her statement dated 13 December 2023 as true and correct.[46] A summary of Ms Eishold’s oral testimony follows:
[46] Exhibit R4.
(a)After arriving at the Respondent’s Melbourne Gateway Facility (“MGF”) in August 2022 Ms Eishold said she invested considerable time in understanding the Applicant’s issues at work. Many of the things he complained about pre-dated her arrival and she considered him ‘a good operator and performer’.
(b)The Applicant’s classification of ‘Mail Officer’ requires him to operate a forklift and other tasks depending on shift requirements. Ms Eishold said everyone in the workplace must complete training and safety requirements, including those who drive forklifts. The Applicant, Mr Zaldarriaga, and Mr Dimitrievski play no role in Australia Post’s organisational policy and procedure relating to refresher training.
(c)Ms Eishold said the Applicant previously expressed an interest in driving ‘red vans’ and she ‘tried to help him have that experience’ with the view to transferring to a driver role closer to his home. Ms Eishold recalled having a conversation about this with the Applicant on 2 March 2023, but recalled him coming across as ‘dismissive and didn’t want to explore it at that time’. She accepted this was ‘a lot of information’ in the context of earlier events but said she foreshadowed other work options to try and calm him down and feel safe. Ms Eishold said the Applicant did not take up any of the alternative work options she raised and has been absent from the workplace on sick certificates since 2 March 2023.
(d)Ms Eishold said she provided a statement and gave evidence at the Applicant’s FWC proceeding, in which neither of his two allegations of harassment by her was substantiated. She said the Applicant’s claim in the current proceeding, that she never tried to assist him, was ‘untrue’ because she provided support and assistance on ‘more than one occasion’. This included:
(i)providing a safety adviser to mentor him when the Applicant was appointed as a Deputy Health and Safety Representative in October 2022;
(ii)arranging an earlier shift commencement time at his request;
(iii)approving shift amendments so the Applicant could attend personal appointments;
(iv)assisting the Applicant in returning to a forklift driver role after a period on medication;
(v)organising a ‘driver experience day’ at the Respondent’s transport facility;
(vi)proposing ideas to enable the Applicant to ‘work closer to home’ and do ‘hours that better suited him’; and
(vii)helping organise his leave on one occasion when he had ‘insufficient accruals’ so that he could be paid for the entire period of leave.
(e)When asked about the Applicant’s claim that she contacted him at home, Ms Eishold recalled responding to enquiries from the Applicant on his Australia Post email address. In terms of the email the Applicant specifically complained about, Ms Eishold said she was unaware he was not at work at that time and said there was no obligation on the Applicant to check his work emails when not on shift.
(f)Ms Eishold said Mr Harrison reports directly to her and they have daily contact. She considers him a ‘strong leader’ who encourages his team and displays happy and engaged workplace behaviours. She has never seen Mr Harrison act in an aggressive or disrespectful way to anyone and considers that he takes his leadership responsibilities ‘very seriously’. She said he is aware of the culturally diverse work environment they operate in and his ‘very clear directions’ take account of that. Ms Eishold said workplace machinery ‘is quite loud’ and hearing protection is provided. Communication can therefore be quite boisterous with hand gestures used to complement voice communication. She said this can spill over even when people are away from the machines.
(g)Ms Eishold said she was concerned about Mr Harrison’s welfare on 2 March 2023. She recalled him being ‘visibly shaken, not himself’, and going outside for a walk. After seeing him re-enter the building she noted from his demeanour that he was still shaken and ‘staying away from everybody’. She asked an employee called Ursula to go and ‘check in on him’. Ms Eishold confirmed she did not observe ‘any interaction’ between Mr Harrison and Mr Osman on 2 March 2023. In terms of the Applicant’s claim that Mr Harrison ‘eyeballed’ him in the ‘airside’ section of the facility Ms Eishold said there is ‘not a direct view’ of this area from Mr Harrison’s office, with equipment, walls, and a cage in between. When asked by Mr Ferwerda if she ever observed Mr Harrison acting in an angry or aggressive way, Ms Eishold responded: ‘No’. Ms Eishold knew of no reason why the Applicant may feel unsafe in her presence and did not know why he needed to observe her testimony by video from an adjoining room. Ms Eishold said she had previously reminded the Applicant he could access the Respondent’s Employee Assistance Program for support. When asked by Ms Serpell if this was arranged, Ms Eishold said she could only do so if an employee requested it and the Applicant had not.
(h)During cross-examination Ms Eishold said she had not read the entire FWC report just the section that mentioned her. She has read the Applicant’s entire statement in the current proceeding.
(i)When asked about Exhibit A6, Ms Eishold denied the Applicant’s driving experience was ‘pulled’ as he claimed and said it was only ‘deferred’ until early in the New Year because of operational requirements. She explained that during the very busy Christmas period forklift drivers are at a premium. She is unaware how this was conveyed to the Applicant because she went on leave from 4 January 2023. She subsequently conveyed the Applicant’s new driver experience dates by email.
(j)In terms of Exhibit A3, Ms Eishold said her supervisor, Mr Watkins, arranged for the Applicant to have a support person whenever he communicated with her in person. Because of the Applicant’s complaints, management needed to determine how best to ‘approach any conversations going forward’. Ms Eishold said the new contact arrangements with the Applicant, and the FWC proceeding he initiated, impacted her ability to address the Applicant’s issues and made her question how best to approach him. Ms Eishold denied ever being disrespectful to the Applicant and said her efforts were always directed at ‘trying to assist him’. She denied the Applicant’s claim that she used a hand gesture near her head to convey he was ‘a crazy person or had mental challenges’ and said this was something she would never do, because one of her family members suffers mental health issues.
(k)Ms Eishold confirmed the references in her statement about AFP attendance at the MGF on 2 March 2023.[47] This included escorting police out of the facility and conversing with them. The AFP did not ask her for CCTV footage. Ms Eishold recalled asking the Facility Manager to collect witness statements from those involved.
Evidence of Mr Nabil Awad
[47] Ibid 2 [15]-[17].

Mr Nabil Awad was unable to be called as a witness because of illness. The Tribunal notes a statement from him by email dated 2 March 2023 at 1:36pm, in which Mr Awad states:
‘This morning David told me that Hamed Osman can drive the electric forklift not the Gas forklift because he must do the refresher gas forklift and the someone will come today to conduct the refresher about 10:00am today, so I told Ahmed not to drive the gas forklift until you do the refresher and some and I
Asked him today to drive the electric rotating forklift in SPSS and helping John in SPSS area and told me OK.
• David Harrison called me and asking to see him in the office so when I went, I found Jerry, Steven, and David told to tell Jerry and Steven what happen this morning, so I told them what’s happen.
• Ahmed come to me at 6:40am and told me he is going home for stress leave.
Regards
Nabil Awad’[48]
(Errors in original)
[48] Exhibit R1, 75.
No submission was made that Mr Awad’s statement was unreliable or should not be considered.
Evidence of Ms Ursula Travers
Ms Travers was not called as a witness and could not be cross-examined. She is an employee of the Respondent and a CWU delegate. Ms Travers emailed a statement to Ms Eishold on 2 March 2023 at 2:00 pm, which states:[49]
‘This morning, approximately between 6.30am & 7am Jerry came to me at the carding area, to update me on matters that had taken place this morning between Ahmed, Nabil and David, Jerry would have only been speaking with me for about 5 minutes and David came to us looking quiet upset, explaining that had asked Ahmed to go and work with Albert and that Ahmed refused, David said he had asked for a copy of the L&D email, david said he had told him to email L&D for a copy. Ahmed told him to stop speaking to him, David explained he had asked Ahmed to calm down and go upstairs and sit and have a coffee or something for a while, he said Ahmed was looking at the other staff saying he is still talking to me... I don't remember anymore regarding
A minute or so later Ahmed came to us he appeared quite angry over something, saying David was harrassing him, he told David to stop speaking to him a few times and that he had witnesses this time of David..... coming at him, showing us jestures of his eyes wide open and hands moving around telling him to go and work outside with Albert, he said David had told him to calm down and if he wanted to go upstairs, Ahmed said I am not going upstairs by myself, I fear for my safety, he repeated this a few times and said he was going to call the police repeatedly. Jerry and I both tried to calm him down, and that there was no reason to involve the police and that we were under federal here.... I said we would email Leroy for advice, so I did. I walked outside to see if Katrina had arrived, which she had.
At approximately 7am Jerry rang Leroy explaining the situation. Ahmed moved away to speak with Leroy, which I did not hear properly, he then passed Jerry his phone back, Jerry finished the conversation with Leroy and I was trying to get back to my work, I did see Ahmed had his phone out and told us he was calling the Police. He was quiet upset talking to the police, when he finished the call he saw David walk past and said he's not coming near me I fear for my safety. I got up and saw Katrina come towards us, she then proceeded to talk with Ahmed’.
(Errors in original)
[49] Ibid 86.
No submission was made that Ms Traver’s statement was unreliable or should not be considered.
Evidence of Mr Luisto Mijares
The Tribunal notes a statement from Mr Luisto Mijares, who is an employee of the Respondent. Mr Mijares emailed a statement to Ms Eishold on 2 March 2023 at 11:03 am, which states:[50]
[50] Ibid 80.
‘Hi Guys,
During the Huddle it everything is fine, everyone is listening to the information David is sharing .
After the Huddle, we start organizing the staff according to where we need them.
I work on the standard and large letter with other staff when I see Ahmed and then came David after .
David approach Ahmed and ask him to go upstairs where they can talk.
Ahmed replies to David that “ I don’t want to talk to you ,stay away from me .
David then walks away and leave Ahmed alone.
That is all I’ve saw and heard.
Respectfully
Luisito mijares
(Errors in original)
MEDICAL EVIDENCE
Medical letter from Northern Health
A letter from the Emergency Department at Northern Health dated 18 February 2022 states that the Applicant was diagnosed that day with ‘Chronic Stress’.[51] The Applicant is noted to have experienced:
‘…several weeks of poor sleep especially over last few days…In the setting of alleged workplace bullying and racism at place of employment Since May 2021…Patient has consulted Union and ombudsman with little reprieve…Currently on stress leave…Work related stress has caused wife and young child to move out of home…’.[52]
Evidence of Associate Professor Khalid
[51] Ibid 56-7.
[52] Ibid 56.
Consultant psychiatrist Dr Khalid gave evidence by video. He adopted his report dated 15 March 2023 as his evidence in this proceeding.[53] His oral testimony is now summarised:
[53] Ibid 32-45.
(a)Dr Khalid said it was coincidental that he examined the Applicant a day after the events of 2 March 2023. Their consultation related to an earlier referral by the Applicant’s lawyers about a different compensation claim.
(b)Dr Khalid said the Applicant denied any past condition but was in an agitated state because of workplace events the previous day. This prevented Dr Khalid from delving into his history so as not to further agitate him. Dr Khalid understood past traumatic events included the Applicant’s claim that his father was abducted when the Applicant was 8 years old, which ‘definitely raised the possibility of a trauma-related condition’. He said people with past traumatic events have high rates of Post Traumatic Stress Disorder (“PTSD”) and often struggle in their new country, including by being ‘suspicious’ and seeing conduct as racism. Dr Khalid said because he could not delve into the Applicant’s history, he could not rule out that psychotic or paranoid features were present. This included because the Applicant asked Dr Khalid if he could record their session, which he refused.
(c)Mr Ferwerda asked Dr Khalid about the Applicant’s presentation at the Northern Hospital on 18 February 2022, in which marriage problems were referred to.[54] Dr Khalid said this was ‘a really sensitive matter’ that related to a different condition unrelated to work, but he could not explore this. He said the Applicant was ‘already suspicious’ and if he did enquire into this other condition the Applicant ‘would have left or got agitated’ and Dr Khalid ‘didn’t want to trigger him’.
(d)Dr Khalid said the 30mg of Mirtazapine the Applicant takes under prescription from Dr Parshekooh is an anti-depressant medication. He said a good trial of medication is between 6 to 8 weeks and patients should not be permanently medicated. He would be ‘concerned if the person is not improving on the medication and there is no change in the treatment plan’. He said the Applicant should also have seen a psychologist rather than a social worker to address his issues. Dr Khalid opined that because there was no change in medication after the events of 2 March 2023, this may be consistent with an aggravation of a pre-existing condition, because if his ‘GP was concerned [about a deterioration] they would have increased the dose…If the GP knows him well and is happy with the medication it suggests the symptoms have not worsened’. Dr Khalid said he would have expected the Applicant’s condition to have improved by now given he has not returned to work during the last 15 months.
(e)Dr Khalid said he is unaware of the Applicant’s FWC application but agreed with Ms Serpell that the Applicant does not trust his employer. He accepted that the Applicant continued working for the Respondent because of financial pressures and it was ‘quite possible’ that because of his negative workplace perceptions he might ‘overreact’ to people he felt bullied by.
(f)During cross-examination Ms Serpell asked Dr Khalid about the reference in his report to the Applicant experiencing suicidal thoughts in 2019. Dr Khalid said this was a sign of desperation and a ‘time when [the Applicant] was separating from his wife’. He was also asked about the reference in his report to the Applicant separating from his wife ‘about a year’ prior to their March 2023 consultation,[55] and responded that marriage separation is ‘not easy for anyone’.
(g)When asked by Ms Serpell about the Applicant’s perceived sense of being targeted over a longer period than the events of 2 March 2023, Dr Khalid responded that he could not ‘determine the veracity of allegations’ and whether the Applicant’s perceptions are ‘right or not is up to investigations to determine’. His diagnosis of the Applicant with an adjustment disorder was based on the Applicant’s claims alone. He said this is a stress-related condition but having not seen the Applicant since 3 March 2023, he could not say how this had progressed. He said that based on the Applicant’s evidence about what occurred on 2 March 2023 he may have experienced a ‘temporary exacerbation’ of an adjustment disorder, which Dr Khalid thought would resolve in a few weeks and that ‘removing him from that stressful situation is the best option’.
(h)During re-examination, Mr Ferwerda informed Dr Khalid that after his consultation with the Applicant on 3 March 2023, a six-day FWC hearing later in 2023 determined that none of the Applicant’s allegations were substantiated. Dr Khalid said it ‘would absolutely change [his] opinion and diagnosis if there was no bullying or harassment’ and he would have expected any acute stress reaction from the events of 2 March 2023 to ‘have resolved over four weeks’. Dr Khalid agreed with Mr Ferwerda that if the Applicant has an underlying mental health condition with paranoia and psychotic features, that ‘it’s quite possible on [2 March 2023] he over-reacted’.
Evidence of Dr Turnbull
[54] Ibid 56.
[55] Ibid 40.
The Tribunal has considered a report prepared by occupational and forensic psychiatrist Dr Leon Turnbull following a consultation with the Applicant on 8 November 2022, which is approximately four months prior to the events of 2 March 2023.[56] Dr Turnbull’s report states:
‘…this man’s psychiatric state has varied in intensity over the last few years, with worsening at times and at least partial improvement at other times.
Much of that variation, in my opinion, has had to do with what has been occurring in the workplace and the responses to those allegations, and the common picture described by him has been one of anxiety, mistrust, feeling unsupported and unsafe, having difficulty sleeping, and feeling physically tense.
There has been some anxiety and distress, his mind has been at least partly flooded by his concerns about his allegations from the workplace, and in my opinion a reasonably non-specific diagnosis to encapsulate his psychological response to the events is an Adjustment Disorder.
…
…he feels stuck in his current workplace, he has now invested several years with an employer who he feels he cannot trust and he feels unsafe with, and there is a risk that if he leaves this workplace, and does not quickly maintain momentum, he may well psychiatrically deteriorate.
…
He has received the antidepressant mirtazapine, and he has seen a counsellor and now psychologist.’[57]
[56] Exhibit A2.
[57] Ibid 6-7.
In terms of the relationship between the Applicant’s psychological condition and employment, Dr Turnbull stated:
‘There is a plausible relationship, as I see it, between his allegations, if shown as largely true, and his current mental state. I see consistency.’[58]
[58] Ibid 8.
In response to the question: ‘Whether you believe that our client’s employment has significantly contributed to his condition’, Dr Turnbull responded:
‘I did not get a history of a significant pre-existing psychiatric illness. The history I obtained was a gradual onset of anxiety, stemming from the workplace, apexing at times, him experiencing some improvements when he was put on days but there remaining an incomplete remission of his anxiety, and him remaining anxious to the current day.
It is my impression that the cumulative effects of the workplace events, as he alleges, have significantly contributed to his condition.
There has also been a relationship breakdown and that has some bidirectional relationship on his mental health, in the sense that it would worsen it in some respects, and at the same time his mental health seems to have led to that relationship breakdown.
Physically, he does not seem to have any clear debilitating condition.’[59]
[59] Ibid.
Dr Turnbull opined in his report that he did not anticipate the Applicant could ever regain a capacity to remain at Australia Post in the long term, ‘unless there was some sort of miraculous series of events whereby himself and the employer and colleagues achieved a détente at odds with the current situation’. He assessed the Applicant to be suffering a ‘5% impairment’ according to the Guide to the Assessment of the Degree of Permanent Impairment (2.1 Edition).[60] Dr Turnbull further assessed that if the Applicant continued ‘working with the employer’, his adjustment disorder could remain indefinitely.[61]
[60] Ibid 9.
[61] Ibid.
A summary of Dr Turnbull’s oral evidence on 6 February 2024 follows:
(a)Dr Turnbull confirmed he has seen Dr Khalid’s report dated 15 March 2023. He did not record the same history as Dr Khalid, and it was not uncommon for practitioners to record different histories.
(b)Dr Turnbull’s impression is that the Applicant is ‘in a bind’ or predicament, in the sense that he needs employment income, but is ‘not able to immediately find work elsewhere’. He does not see a ‘clear discontinuation’ of the Applicant’s adjustment order since their consultation and considers the events of 2 March 2023 were ‘more likely’ to have caused ‘an aggravation rather than a new condition’.
(c)Ms Serpell asked Dr Turnbull what response someone in the Applicant’s position may have if told they could not drive a forklift and were confronted by a manager who ‘didn’t look normal and was very aggressive’? Dr Turnbull said there could be several plausible responses in such a scenario, including a worsening of mental health and incomplete recovery from the adjustment disorder previously diagnosed. Dr Turnbull emphasised, however, that his answer was only based on assumptions from when he last saw the Applicant on 8 November 2022.
(d)During cross-examination, Dr Turnbull said he formed the view that the reports provided to the Applicant’s solicitor, from Dr Jason Nguyen dated 12 March 2020 and Mr Peter Carlon (counsellor) dated 19 February 2020,[62] were essentially advocacy and he ‘could not rely on them being entirely impartial’.
(e)Dr Turnbull disagreed that an adjustment disorder was on the ‘lowest rung of psychological conditions’. He said this diagnosis tends to encapsulate broad dysfunction compared to ‘lasering in on one specific feature of presentation’ but was still clinically significant.
(f)When asked about the impact of personal factors like the Applicant’s marriage breakdown in early 2022, Dr Turnbull said he did not know the precise timing but was aware of it and was also aware of the Applicant’s claim about his father being kidnapped and disappearing while residing overseas.
(g)Dr Turnbull was unaware of the FWC decision in November 2023, which found that 41 bullying allegations made by the Applicant were not substantiated. Dr Turnbull said he is an evidence-based person and if told something that is factually incorrect, then his opinion changes. If it was established that the Applicant’s accusations about being yelled at, discriminated against, bullied, and followed were not correct, Dr Turnbull said he would ‘shred [his] report’ because ‘there’d be very little weight [he] could place on [it]’. In re-examination by Ms Serpell, Dr Turnbull said what he normally does is declare his assumptions in medicolegal reports and assumes what he is told is true. When asked by Ms Serpell whether he considered it relevant that the Applicant was self-represented at the FWC, Dr Turnbull responded that he does not ‘take it upon [him]self to be the arbiter of truth’ and would not contradict the conclusions of an expert body. He used the example of ‘cases where there is criminal and civil overlap’, where he is cautious to ensure that ‘decisions of one body translate to another’.
Evidence of Dr Parshekooh
[62] Exhibit A10.
The Tribunal has considered a two-page letter from general practitioner Dr Raheleh Moradi Parshekooh dated 24 January 2024.[63] Dr Parshekooh gave oral testimony under affirmation, which is summarised as follows:
[63] Exhibit A7.
(a)Dr Parshekooh said she has worked at her current practice since October 2015. Prior to that she practiced in Iran for 8 or 9 years before migrating to Australia.
(b)The Applicant first attended her practice in December 2020 and saw other doctors. Dr Parshekooh is unaware if he visited other practices.
(c)Dr Parshekooh was referred to documents titled ‘Complete Record As at 3/5/2023’, in which the earliest attendance recorded by the Applicant was on 24 January 2022.[64] She was asked questions by Ms Serpell about earlier attendances in February 2021, and it became apparent that the available medical records did not constitute a ‘Complete Record’ as claimed. At the Tribunal’s request Dr Parshekooh undertook to provide the earlier records dating back to early 2021 and did so. These have been considered by the Tribunal.
(d)Dr Parshekooh referred to the Applicant’s attendance on 18 February 2021, in which he complained of ‘tiredness’. Blood tests were undertaken but she ‘couldn’t find any reason for tiredness’. The Applicant wanted a medical certificate but did not ‘mention a work-related injury’ at that time. The Applicant later stated he has ‘stress and anxiety’ attributed to work.
(e)Dr Parshekooh said she commenced the Applicant on a drug that was ‘kind of an anti-depressant’ in 2021 but it was not helpful. In February 2022 she prescribed Mirtazapine, which resulted in him getting better and he continues taking it to the present day. She recalled that ‘he was happy’, sleeping better, and no longer having nightmares. This meant the medication was ‘successful’ so there was no need to refer him to a psychiatrist. When asked by Mr Ferwerda about the Applicant’s reference to needing to see a psychiatrist following sessions of counselling in 2022, Dr Parshekooh said there was a 3-6 month waiting list to see a psychiatrist and again stated there was no need for this because the medication she prescribed was having the desired beneficial effect.
(f)Dr Parshekooh said the Mirtazapine dosage she prescribed to the Applicant increased once in April 2022, which coincided with his ‘Workcover claim being rejected.’ The Applicant last saw Dr Parshekooh on 9 May 2024 to renew his prescription.
(g)Dr Parshekooh said that prior to the incident on 2 March 2023, she had cleared the Applicant for a return to normal duties. She saw him on 6 March 2023 for ‘about 25 minutes’ but could not recall if he was in a distressed state. When asked by Ms Serpell about the relatively brief nature of the record made for the 6 March 2023 consultation, Dr Parshekooh said it was ‘just a summary’ and ‘maybe [she had not written] all the things he was telling [her]’. She recalled the Applicant telling her about calling police to his workplace on 2 March 2023. Dr Parshekooh considers these events caused his pre-existing depression to ‘flare up’.
(h)During re-examination by Ms Serpell, Dr Parshekooh said she was ‘100% sure’ the Applicant told her on 6 March 2023 that a hostile co-worker tried to hit him with a car about 2-3 days earlier, which is why he was feeling unsafe and unwilling to return to work. The Applicant said if he returned to work the co-worker ‘might try to kill him’.
(i)Dr Parshekooh accepts she has certified the Applicant as ‘totally unfit for work’ since 6 March 2023. When asked by Mr Ferwerda if the Applicant is motivated to return to work, Dr Parshekooh responded: ‘I think he is obsessing because of his manager’. When asked by Mr Ferwerda if she would be surprised that the day prior to the events of 2 March 2023 the Applicant voluntarily engaged with his manager in the manager’s office to resolve a pay issue, Dr Parshekooh said she was not surprised because the Applicant was ‘suffering financially’.
(j)Dr Parshekooh said the Applicant can return to work, but only if it is in a ‘different position or a different place’, and with ‘different people’. When asked by Mr Ferwerda if she had discussed this with the Applicant during the last six months, Dr Parshekooh was ‘not sure’. She agreed there is no reference to this in her letter or the clinical notes. Dr Parshekooh said Work Cover involvement is needed to determine a return-to-work program, which had not occurred. Dr Parshekooh considers the Applicant’s problems centre on ‘lack of communications’ with his manager and attributes this to the employer ‘ignoring him’, not ‘responding to him’, and not ‘accepting what happened to him’. Dr Parshekooh agreed that the sole source of her information about what happened is from the Applicant. She has not received anything from Australia Post or the Applicant regarding the details of his compensation claim. Dr Parshekooh was unaware that the Applicant had been offered work in a different facility and under a different manager, or about a bus driver experience he undertook.
(k)Dr Parshekooh said the Applicant discussed his FWC application with her and she is aware it was ‘rejected’. When asked by Mr Ferwerda if she is aware all allegations were unsubstantiated, Dr Parshekooh responded: ‘He didn’t tell me about all of them but some of them’. When asked if the Applicant has a trait or susceptibility in believing he is being bullied or picked on, Dr Parshekooh disagreed. She said the Applicant had attended her clinic for four years and ‘his behaviour is normal’. She added that other patients present as ‘sensitive’, but she has ‘never seen any abnormal things’ in his presentation to suggest ‘he has a different personality’.
(l)Dr Parshekooh agreed that rejection of the Applicant’s compensation claim, the FWC hearing, and current proceeding caused him stress. Dr Parshekooh said she has ‘no information’ if his marriage problems or visitation arrangements with his child, or any financial or other non-work-related issues contributed to his stress.
[64] Exhibit R1, 46-55.
APPLICANT’S CLOSING SUBMISSIONS

Ms Serpell submitted that the Applicant’s current claim ‘concerns what occurred on a single day in the workplace’ on 2 March 2023, which resulted in him suffering an aggravation of his mental health issues that were ‘minor in severity’ prior to that. She conceded the Applicant’s ‘evidence in its entirety is hard to reconcile with the evidence of others’ and there were ‘discrepancies’, but said he genuinely perceives inappropriate workplace treatment. Ms Serpell said other versions about what occurred can be accepted, but ‘perception is not a competition of accuracy’.
Ms Serpell submitted that the Applicant ‘does not need to prove bullying occurred to succeed in his claim’, that the Tribunal is ‘not required to undertake the task of determining the historic allegations of bullying’, and ‘has no jurisdiction regarding other events beyond 2 March 2023’. Ms Serpell said ‘things occurred on 2 March 2023 that resulted in the Applicant experiencing adverse psychological consequences’ and it is his ‘perception that’s important – not resolving historical concerns’. She said the Applicant should be considered a ‘witness of truth in terms of his perception about what occurred’.
Ms Serpell said there is ‘risk’ in the Tribunal having regard for the FWC decision because the ‘facts as found by the FWC are not relevant to this proceeding’ and tend to ‘muddy the waters’. She said there was miscommunication in conveying Mr Harrison’s direction to the Applicant and this cannot therefore constitute reasonable administrative action. She said the Applicant experienced a ‘melt down’ after his psychological symptoms were aggravated, causing him to become ‘hot, angry and not coping’. Ms Serpell handed up Sami and Telstra Corporation Limited,[65] citing [53]-[54] in support of the proposition that it is unnecessary that an applicant’s perception ‘passes the test of reasonableness’. These paragraphs state:
‘53. In reaching this conclusion I have had regard to the matters which may be taken into account under subsection 5B(2) of the Act. In view of the length of Mr Sami ’s employment it is unlikely that anything in the nature of the work he was undertaking contributed to the condition. On the evidence before me there is nothing to suggest that Mr Sami had a predisposition to the disease or that there were any matters not related to his employment or affecting his health which were relevant.
54. For reasons to which I shall refer later I am satisfied that Mr Ettridge’s treatment of Mr Sami was as described by Mr Sami and that Mr Sami was treated unfairly in his employment. In the alternative, on the basis of his evidence, I am satisfied that Mr Sami genuinely perceived that he had been treated unfairly and that there was a basis for this in the events he experienced in his workplace. It is not necessary that the perception formed by Mr Sami itself be found to pass an objective test of reasonableness’.[66]
[65] [2012] AATA 41 (‘Sami’).
[66] Citing Re Salters and Telstra Corporation Limited[2002] AATA 75; (2002) 66 ALD 798, [90] (‘Salters’).
Ms Serpell also handed up Salters, citing [85]-[86] and [88], which refer to the following extracts from Rodriguez v Telstra Corporation Limited [1999] FCA 1400:
"44    The principles to be applied in relation to Mr Rodriguez's case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626 at 642, where his Honour said:
'The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.' [my emphasis]
45     In Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, the Administrative Appeals Tribunal had found that the applicant's depression, whether it was reactive or endogenous, was triggered by his having to work at all, rather than by some characteristic or condition of his work for the respondent, and considered some factor in the applicant's personal life or circumstances might just as readily have triggered his depression as did working for the respondent, or working generally. As a result of this finding, the Tribunal had affirmed a determination that the applicant's condition was not the result of the contraction, aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor, as required by s 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).
46     Davies J allowed the appeal, holding that the Tribunal's approach was in error. Davies J referred, at 239, to the observations of Windeyer J in Federal Broom Co Pty Ltd, to which I have referred, and then said at 240:
'A like problem was examined in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In that case, Pincus J went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation, acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself.'
Davies J noted:
'As Windeyer J pointed out in Federal Broom Co Pty Ltd v Semlitch (supra) at 643, "all that the statute requires is 'a contributing factor". In the passage that I have set out above, Windeyer J pointed out that it is necessary to look "to what the worker in fact does in his employment". It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Windeyer J used the words "precipitated or stimulated".'
Davies J held at 242:
'Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.'
47     In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, a Full Court of the Federal Court (Davies, Beaumont and Burchett JJ) was concerned with an application for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ss 45 or 46, and held that the Commonwealth was not bound to pay compensation in respect of a compensation neurosis that developed out of an allegedly disabling physical condition that was not itself compensable. The fact that, in that case, the applicant genuinely believed that his right leg pain was related to the injury to his coccyx may have been a potent factor in the development of his neurosis, but did not mean that his employment was operative in producing his condition. A distinction is to be drawn between, on the one hand, the sequelae making a sick mind sicker and contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness but not in such a way as to add to existing incapacity.
48 The question was whether the disease of compensation neurosis (from which, on the evidence, Mr Kirkpatrick was suffering), was within the meaning of s 29 of the Act, where physical injuries suffered at work had, as a matter of fact, healed uneventfully, but Mr Kirkpatrick genuinely believed that his leg was painful and that he could not cope with his former work as a consequence, his belief being that his leg pain was due to a back injury suffered some years earlier. The Full Court observed at 40:
'The applicant's case is to be contrasted with cases such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, reversed on appeal 47 ALJR 236. In the former case a work accident aggravated a previous schizophrenic condition by producing a new delusion. Kitto J at 634 said:
"Where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder."
In the latter case Mason JA (as he then was), whose dissenting judgment was approved upon appeal to the High Court, referred (at 43) to a work accident and hospitalisation to which it led as having "set in motion the delusional condition" from which the worker thereafter suffered. In both of these cases, the work incident was actually operative as a factor in producing the worker's condition. That condition happened to be one involving delusions, but it was no delusion that the work incident produced the relevant mental effect. In the present case, on the other hand, the worker suffered a condition of leg disability, to which the work had not been a contributing factor, and it is his mere belief that the work had been a contributing factor to the disability that is relied upon as being causally related to the subsequent neurosis.'
49 Whether employment contributes to the contraction, aggravation, acceleration or recurrence of the disease is a question of fact. In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42, Davies J said at 43:
'It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. See Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598 per Mason J. Moreover, as Barwick CJ said in Favelle's case at 585: "...the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid."
Similarly, in Thom or Simpson v Sinclair [1917] AC 127 at 145, Lord Parmoor said: "The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment."
His Lordship was there considering a case of injury "arising out of" employment but the principle which he expounded is equally applicable with respect to a disease in respect of which the worker's employment is a contributing factor.'"
Ms Serpell submitted that notwithstanding the limitations highlighted by Dr Khalid in getting a full history, a decline in the Applicant’s psychiatric wellbeing was noted. Although Dr Khalid believed the aggravation experienced by the Applicant should have resolved within four weeks, Ms Serpell said this should be treated with caution because no follow-up consultation was undertaken to confirm this. She said Dr Khalid attributed the Applicant’s condition as being ‘due to alleged bullying and harassment at his workplace’.[67] Ms Serpell said the Applicant did not report a pre-existing condition to Dr Khalid to account for his symptoms and Dr Khalid’s evidence about other potential causes was speculative. In terms of Dr Parshekooh’s evidence, Ms Serpell said ‘not a lot of GPs take extensive notes [and] not everything written is Gospel’.
[67] Exhibit R1, 41 [Response to Q4].
Ms Serpell said the Applicant returned to unrestricted work prior to 2 March 2023, but options for him to work at a different location and under new management were not progressed by the Respondent. Ms Serpell accepted, however, that the Applicant had not returned to work for 15 months and his unwillingness to be contacted at home impacts the Respondent’s ability to advance a return-to-work plan or relocation options.
RESPONDENT’S CLOSING SUBMISSIONS
The Tribunal has considered the Respondent’s written submissions.[68] Mr Ferwerda said there is ‘substantial and important overlap’ between the FWC proceeding and the Applicant’s claims in the present application. He said the FWC outcome ‘is highly relevant’ and there is nothing to suggest the Applicant was not afforded opportunity and fairness in putting his case at the FWC, as evidenced by his documentary submissions, and calling of several witnesses.
[68] Respondent’s Statement of Facts, Issues, and Contentions dated 25 January 2024, 3 [14]-[15].
The Respondent disputes the Applicant suffered a disease that was contributed to in a significant degree by workplace events on 2 March 2023. Mr Ferwerda submitted there are two major obstacles for the Applicant in establishing liability under s 14 of the Act:
(a)The first relates to a ‘reality test’ where the events he relies upon to establish his perception must have occurred. Mr Ferwerda accepts the Applicant does not need to establish bullying occurred, but there must be a factual basis of ‘an incident or state of affairs that actually happened…regardless of whether the perception was reasonable or itself reflected reality’.[69] Mr Ferwerda said on anyone else’s version about the events of 2 March 2023, the Applicant’s recollections don’t meet the reality test. This includes the claim that he was suspended from driving a forklift without reason, which should be rejected in favour of the evidence of Mr Awad and Mr Harrison. In relation to Dr Parshekooh’s evidence that the Applicant’s mental health was adversely impacted by rejection of claims or stressors linked to participating in proceedings, Mr Ferwerda said the Applicant cannot be entitled at law for a psychological reaction caused by such events.
(b)The second obstacle advanced by Mr Ferwerda is that even if the Tribunal were to find that the Applicant suffered a psychological injury from the events of 2 March 2023, this resulted from reasonable administrative action taken in a reasonable manner in respect of the employee's employment, pursuant to s 5A of the Act. That is because it was explained to the Applicant by Mr Awad, Mr Harrison, Mr Zaldarriaga, and Mr Dimitrievski, that he had to work inside until his refresher training on the outside gas forklift was completed. Subsequent directions and decisions such as not giving him a copy of the L&D email on privacy grounds, or a written direction about his tasking that day, or directing him to help Albert at the airside section of the facility, or asking him to go upstairs due to his disruptive conduct, were also reasonable.
[69] Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 12^th ed, 2023) 139.
Mr Ferwerda submitted that the oral testimony of expert witnesses provided the Tribunal with little assistance. He said Dr Turnbull’s single consultation with the Applicant was by video four months prior to the events of 2 March 2023. Moreover, Dr Turnbull stated he would ‘shred’ his report if the Applicant’s accusations were not correct. In terms of Dr Khalid’s report, Mr Ferwerda said the consultation with the Applicant was coincidentally a day after the events of 2 March 2023, but Dr Khalid was ‘not asked or prepared for the presentation he was confronted with’. The Applicant was agitated from the previous day’s events, which constrained Dr Khalid from exploring issues like childhood trauma and other stressors relating to his marriage breakup and finances. Mr Ferwerda said although Dr Khalid ‘opened the door’ on the Applicant having a different underlying condition, the limited nature of their consultation on 3 March 2023 meant this was speculative.
In terms of Dr Parshekooh’s evidence, Mr Ferwerda submitted that aspects of it were ‘confusing and unsatisfactory’. This included because of her reference to the Applicant’s claim that someone tried to hit him with a car in the days leading up to their consultation and asserting that this person would try to kill him if he returned to work. Mr Ferwerda said this purported incident was inconsistent with the factual matrix and the only reference to a car incident occurred in 2020 when a co-worker accused the Applicant of driving too fast in the car park and almost hitting another staff member.[70] Mr Ferwerda submitted that Dr Parshekooh had not properly addressed the events of 2 March 2023 in her letter, nor subsequently corrected the history she took. Mr Ferwerda also pointed out that the dosage of anti-depressant medication prescribed by Dr Parshekooh had not altered since prior to his return to work in early 2023, which did not suggest worsening symptomology. He said Dr Parshekooh’s assessment that the Applicant could return to work gradually and at a different workplace or under ‘different people’, was also inconstant with her certifying him as totally unfit for work during the 15 months since 2 March 2023. Mr Ferwerda said Dr Parshekooh could have advanced the prospect of a graduated return to work or under different arrangements in the multiple medical certificates she issued.
[70] Exhibit R3, FWC Decision 50-1 [246].
In terms of costs for this proceeding, Mr Ferwerda said if the Applicant’s is unsuccessful in the present matter, then no costs are attributable to his claim. That is because on and from 22 January 2024, the Respondent provided the Applicant’s legal representatives with own motion reconsiderations that reversed its determinations under s 14 of the Act for the two applications settled by consent and approved by the Tribunal on 5 February 2024.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
The Applicant has been employed by the Respondent for about eight years. The employer-employee relationship has been difficult during the last four years in particular, with the Applicant making multiple claims about what he perceives is bullying, harassment, racism, or differential treatment. The Tribunal notes the FWC Commissioner found that that none of the 41 incidents raised by Mr Osman constitute bullying. The Tribunal is not bound by that decision, however, and has decided this application on the evidence presented by both parties in the context of a claim for statutory compensation under the Act.
It is clear the Applicant distrusts some co-workers, his managers, and has had long periods off work on personal leave. The persuasive weight of evidence establishes that the Applicant left the workplace on 2 March 2023 because he did not want to work under Mr Harrison’s supervision. He has subsequently taken approximately 15 months of medical leave approved by Dr Parshekooh and is yet to return to work.
The Tribunal does not consider the Applicant a reliable historian about the events of 2 March 2023. There is considerable inconsistency between aspects of his documentary and oral claims, and divergence between his recollections and those of more persuasive witnesses. Several aspects of the Applicant’s evidence came across as self-serving, uncorroborated, or exaggerated. This includes that he remained calm, in control, and could not have done anything better on 2 March 2023. He presents as a witness who is reluctant to admit even minor faults and with poor insight into his own conduct. The Applicant’s memory was often opaque when discussing things contrary to his application, while professing clear recall of events supportive of his interests. This came across as a lack of candour. Even when contrary evidence from Mr Zaldarriaga and Mr Dimitrievski was put to the Applicant, he continued to advance an implausible version of events. It should be recalled these were the two people he chose to support and advocate for him and who did not have a personal stake in what occurred. Having regard for the totality of the evidence, the Tribunal has decided to treat the Applicant’s testimony with caution.

The Tribunal considers the evidence of the lay witnesses: Ms Eishold, Mr Harrison, Mr Zaldarriaga, and Mr Dimitrievski to be honest, forthright, and to the best of their recollection. Their evidence about what occurred on 2 March 2023 is preferred where it conflicts with that of the Applicant. The Tribunal also has no reason to doubt the documentary evidence of Mr Awad, Ms Travers, and Mr Mijares.
The Tribunal has some doubts about the probative value of the medical evidence because of the incomplete histories taken and overreliance on the Applicant’s narrative. An assessment of the expert evidence now follows.
Associate Professor Khalid’s evidence
Although Dr Khalid’s report is based on a consultation with the Applicant the day after the events of 2 March 2023, this was coincidental. The focus of the consultation related to compensation claims made by the Applicant pre-dating 2 March 2023. Dr Khalid was unable to rule out other causes for the Applicant’s symptomology because his agitated presentation prevented a reliable history being taken. Much of what he recorded from the Applicant about the events of 2 March 2023 was unsubstantiated or incomplete. It is noteworthy Dr Khalid said it ‘would absolutely change [his] opinion and diagnosis if there was no bullying or harassment’ and he would have expected any acute stress reaction arising from the Applicant’s perception of events on 2 March 2023 to have resolved ‘over four weeks’.
Dr Turnbull’s evidence
Dr Turnbull’s consultation with the Applicant was approximately four months prior to the events of 2 March 2023. His oral testimony that these events were ‘more likely’ to have caused ‘an aggravation rather than a new condition’ must be considered in the context of a presentation well prior to 2 March 2023. Dr Turnbull was unaware of the FWC decision in November 2023 that failed to substantiate any of the Applicant’s 41 bullying allegations. It is noteworthy he would ‘shred [his] report’ if the facts relied upon were untrue. Dr Turnbull properly conceded he does not ‘take it upon [him]self to be the arbiter of truth’ and would not contradict the conclusions of an expert body.
Dr Parshekooh’s evidence
The Tribunal found aspects of Dr Parshekooh’s evidence overly reliant on the Applicant’s claims, somewhat inconsistent, and, at times, bordering on advocacy:
(a)In terms of advocacy, Dr Parshekooh contextualised the Applicant’s problems as caused by his employer ‘ignoring him’, not ‘responding to him’, and not ‘accepting what happened to him’. This is despite Dr Parshekooh not having any personal knowledge of what occurred and despite knowing that the Applicant’s allegations were rejected by the FWC.
(b)There is no evidence that an incident Dr Parshekooh was ‘100% sure’ the Applicant told her about on 6 March 2023, regarding a hostile co-worker trying to hit him with a car about 2-3 days earlier, who ‘might try to kill him’ if he returned to work,[71] happened. The Applicant did not see Dr Parshekooh until four days after suffering what Ms Serpell characterised as a ‘melt down’, and there is no independent corroboration of the car incident referred to in Dr Parshekooh’s most recent letter and oral testimony.
(c)The history Dr Parshekooh recorded in her clinical notes is sparse and conveys limited insight into what was occurring. An example is a clinical note recorded on 9 April 2021, in which the reason for contact is noted to be ‘Depression work related anxiety’ but without any explanation about what was troubling the Applicant. Dr Parshekooh makes no reference in these clinical records to other stressors in the Applicant’s life, such as separation from his wife in early 2022, which is proximate to the Applicant being commenced on an antidepressant, and the financial problems she referred to him experiencing in the current hearing. This again reinforces the Tribunal’s views about her over-reliance on the Applicant’s claims.
(d)A clinical record dated 15 February 2022 states that Dr Parshekooh commenced the Applicant on an antidepressant ten days earlier, because he was ‘upset about work and union that not taking her (sic) serious’.[72] A further clinical record dated less than a month later, on 8 March 2022, stated that the prescribed antidepressant was ‘helping’.[73] Dr Parshekooh’s oral testimony is that the Applicant has a ‘capacity to return to work gradually’, in a ‘different position or a different place’, and with ‘different people’. This conflicts starkly with her certification of the Applicant as having no capacity for employment at all in the 15 months since 2 March 2024. Dr Parshekooh stated during the hearing she was ‘not sure’ if a possible return to work was discussed with the Applicant during the previous six months, so it remains unclear when she formed the view that the Applicant could return to work.
(e)Dr Parshekooh’s reliance on a lack of engagement by Work Cover to advance a possible return to work was unpersuasive. Had she stated in Certificates of Capacity during the last 15 months that the Applicant had a capacity to return to work under certain conditions, this outcome may have been advanced. It is also of concern that Dr Parshekooh was unaware the Applicant had previously been offered work in a different facility, under a different manager, and had explored a driver re-training option that would allow him to work closer to home in a new role. This further impacts the probative value of her opinion.
[71] Exhibit A7.
[72] Exhibit R1, 53.
[73] Ibid 52.
TRIBUNAL FINDINGS
The following findings are made on the balance of probabilities:
(a)In the pre-hearing phase and throughout his oral testimony, the Applicant relied on events purportedly occurring on 2 March 2023. By closing submissions, however, it was contended that even if his evidence about these events is irreconcilable with other witnesses, his perception of inappropriate treatment is nevertheless genuine. To the extent it is submitted the Applicant has a propensity for psychiatric injury that needed to be taken account in the workplace, such that his perception of events satisfies the test of injury arising out of or in the course of employment, even if not founded on actual events, the Tribunal rejects this. The Applicant’s perceptions are repeatedly contradicted by more persuasive witnesses, including the two people he chose as support persons. The Tribunal does not accept he is a ‘witness of truth in terms of his perception of what occurred’.
(b)The Applicant’s claims and perceptions about bullying, harassment, and targeting by Mr Harrison on 2 March 2023 are grounded in an untrue or exaggerated narrative. He has not given an accurate account of events and his perceptions are highly unreliable. He was not ‘suspended’ at any stage on 2 March 2023, was rostered for ‘ad hoc’ duties, and not exclusively assigned to drive a forklift. It was entirely reasonable to allocate him to other duties in the workplace pending completion of forklift refresher training. This was anticipated to have been completed on the same day and was an unexceptional direction. Any miscommunication or misunderstanding that may have occurred after the morning huddle on 2 March 2023, is most persuasively attributed to the Applicant. He either misunderstood or chose not to understand the advice of Mr Awad, Mr Harrison, Mr Zaldarriaga, and Mr Dimitrievski.
(c)The Tribunal rejects the Applicant’s evidence that he was unaware of the reason he could not drive a gas forklift prior to the meeting in Mr Harrison’s office on 2 March 2023.[74] The contemporaneous statement of Mr Awad and the evidence of Mr Harrison, Mr Dimitrievski, and Mr Zaldarriaga, persuasively establishes the Applicant was aware of the reason he could not drive a gas forklift outside, namely that he was 51 days overdue in completing refresher training. In his joint statement with Mr Zaldarriaga, Mr Dimitrievski stated that the Applicant approached them after the morning huddle and told them ‘he was instructed by Nabil and David that he won’t be driving a gas forklift today as he was to be undergoing refresher training’.[75] When considered in conjunction with Mr Awad’s statement,[76] this clearly establishes the Applicant’s awareness of Mr Harrison’s direction and the reasons for it. The Applicant’s complaint at that stage was noted by Mr Zaldarriaga and Mr Dimitrievski to be that because he completed refresher training ‘before Christmas’ and had ‘been driving for over 5 months with no issues or incidents at all’,[77] he did not need to do refresher training. This perception was misconceived at best. It is more probable than not, that the Applicant’s decision to go home on 2 March 2023 had more to do with his dislike of Mr Harrison and unwillingness to continue working under his supervision, than any work direction given to him that day.
[74] Exhibit A1, 20 [108]-[110].
[75] Exhibit R1, 77.
[76] Ibid 75.
[77] Ibid 77.
(d)The Applicant plays no role for the Respondent in determining training policy or deciding when employees must do refresher training. There is no evidence that the direction on 2 March 2023 based on the Respondent’s L&D policy, was applied in a discriminatory way, or sought to harass or single the Applicant out.
(e)It remains unclear to the Tribunal if the Applicant was required to report to Australia Post that he was taking anti-depressant medication upon return to work in early 2023, and what if any impact this may have had on his clearance to drive a forklift. Mr Harrison’s testimony was that employees are required to do so and the evidence discloses at least one earlier period where the Applicant could not drive a forklift while taking medication. He was subsequently required to produce a medical certificate before being reinstated to drive a forklift, which took some time.
(f)The Tribunal rejects the Applicant’s evidence that after arriving at Mr Harrison’s office with Mr Zaldarriaga and Mr Dimitrievski, Mr Harrison immediately ‘stood up and started shouting in a very loud voice’, was ‘out of control physically…and there was no chance for any kind of conversation…he just said “no”…it was simply a fighting situation…the way he look, his face, his eyes, something was not normal’. Mr Zaldarriaga and Mr Dimitrievski do not corroborate the Applicant’s recollections about Mr Harrison’s purported conduct at this meeting or subsequently, or that Mr Harrison appeared substance affected. This and other aspects of the Applicant’s evidence came across as self-serving and misrepresented what occurred.
(g)There was no proper basis for the Applicant to demand a written direction from Mr Harrison about his tasking on 2 March 2023, or that Mr Harrison was required to give him a copy of the L&D email containing the personal details of other employees. Despite the Applicant’s insistence on receiving a copy of this document from Mr Harrison, it is noteworthy he has not subsequently sought a copy from L&D staff during the last year, nor asked Mr Dimitrievski or Mr Zaldarriaga to procure a copy for him, which they said they could have done. The Tribunal is also satisfied the Applicant could have accessed this training information and other personal details from his Australia Post employee Dashboard if he wanted to.
(h)The Tribunal rejects the Applicant’s evidence that Mr Harrison gave him ‘the eye’ after the Applicant went to the airside of the facility, causing the Applicant to immediately feel stressed, ‘psychologically unwell’, and unable to remain at work. The Tribunal accepts Mr Harrison’s and Ms Eishold’s evidence that it is not possible for Mr Harrison to have done this given the workplace layout. Moreover, there is no mention of this conduct in the contemporaneous evidence of other witnesses. The evidence more persuasively establishes that the Applicant’s refusal to assist Albert at the airside section of the MGF arose from the untrue premise that he was unfairly ‘suspended on the forklift’. The Tribunal similarly rejects the Applicant’s evidence that Mr Harrison ordered him to go to an isolated and unfamiliar room upstairs in which he feared attack, or may have been ‘obstructed from leaving the property’, or had cause to feel ‘terrified’ by Mr Harrison’s conduct, or that Mr Harrison approached him suddenly and stealthily inside his personal space between three or five occasions that day. These uncorroborated claims are contradicted by the evidence of Ms Eishold, Mr Harrison, Mr Zaldarriaga, and Mr Dimitrievski.
(i)The narrative advanced by the Applicant is not corroborated by probative evidence such as to establish factual events, and his perception of events is unreliable. There is no basis for his claims about apprehending harm from Mr Harrison, nor that Mr Harrison needed to be tested for drugs or alcohol, nor to elevate his concerns to the CWU State Secretary. Some of the Applicant’s claims are frankly scandalous in terms of their potential effect on the reputations of others. The Tribunal finds his claims about Mr Harrison’s conduct on 2 March 2023 to be untrue.
(j)The Applicant has experienced fluctuating mental health and was prescribed an anti-depressant by Dr Parshekooh in February 2022, which he continues taking to the present day. Deterioration of his mental health in the past was attributed to workplace events in 2021, decisions to refuse compensation claims, and the conduct of proceedings he initiated. For example, Dr Parshekooh noted in a clinical record dated 16 February 2023 that the Applicant was ‘feeling sad and upset’ after lodging his ‘file for court’ (sic).[78] The Tribunal infers this is a reference to the FWC proceeding, which found that none of the Applicant’s 41 allegations of bullying and harassment were substantiated. The Tribunal accepts Mr Ferwerda’s submission that the Applicant’s reaction to the progress of his applications, or decisions made in respect of these applications, is not compensable.
[78] Exhibit R1, 49.
(k)It remains unclear to the Tribunal, given the unreliable state of the medical evidence, what effect non-work-related factors like childhood trauma, financial problems, the end of the Applicant’s marriage about a year prior to the events of 2 March 2023,[79] and limited visitation with his child may have had on his mental health. The Tribunal is unable to speculate about the impact of these non-work-related factors.
[79] Ibid 40, 43.
(l)The Applicant’s mental health was assessed Dr Parshekooh in early 2023 as suitable for a return to unrestricted duties. This was even though he had a claim before the FWC at that time that sought to advance 41 allegations of bullying and harassment, including against Mr Harrison and Ms Eishold. The Applicant continued taking a 30mg dose of antidepressant medication, which he had taken for the previous year and continues taking to the present day. The dosage of this medication remained unchanged after the events of 2 March 2023 and Dr Parshekooh said she did not refer him for additional expert assessment or support, such as with a psychologist or psychiatrist, because the medication was working.
(m)The Tribunal rejects the Applicant’s claims that Mr Harrison and other managers in his reporting chain at the MGF never supported nor tried to assist him in resolving issues he raised. This claim is without foundation and the Tribunal prefers the evidence of Ms Eishold, Mr Harrison, Mr Dimitrievski, and Mr Zaldarriaga about considerable past assistance provided to the Applicant. The Tribunal accepts Mr Harrison’s evidence that the Applicant engaged directly with him on 1 March 2023 to receive assistance with a pay problem.
(n)The Tribunal does not accept the Applicant’s evidence that the driving experience organised for him at the Respondent’s Transport Centre in January 2023 was cancelled by Ms Eishold with the intention of targeting or harassing him. The Tribunal accepts Ms Eishold’s evidence that this work experience opportunity was re-scheduled until early in the New Year because of operational requirements at the MGF during the peak Christmas period.
(o)The Tribunal accepts the Applicant experienced an emotional response on 2 March 2023. His dislike of Mr Harrison, Ms Eishold, other managers, and some staff is clear. This includes in the erroneous claim that supervisors at MGF have never assisted him. The Tribunal also accepts that the direction given to him on 2 March 2023 that he could not drive a forklift outside in accordance with his personal preference, until completing refresher training, caused him to feel upset. The Tribunal is not satisfied, however, that his symptoms or the agitation noted by Dr Khalid, constitute a condition outside of the boundaries of normal mental functioning and behaviour, such as to constitute a compensable disease.[80] Importantly, Dr Turnbull and Dr Khalid premise their opinions on the Applicant’s allegations being true. It is noteworthy that Dr Parshekooh did not increase his medication after the events of 2 March 2023, nor consider that he needed further expert intervention, because his existing medication was ‘successful’ and sufficient. It is also astonishing that Dr Parshekooh issued medical certificates excusing the Applicant from any return to work during the last 15 months, yet in oral testimony stated he could have done so under certain conditions.
[80] Comcare v Mooi (1996) 69 FCR 439.
(p)Even if it was assumed the Applicant’s perceptions about what occurred in the workplace on 2 March 2023 contributed to an ailment or aggravation of an ailment, it is not accepted this was a significant contribution, being a degree that is substantially more than material.
(q)The Tribunal infers from Ms Serpell’s closing submissions an invitation to consider that the Applicant may have had a susceptibility to psychological injury given his history of workplace complaints and that his perceptions, which did not need to pass the ‘test of reasonableness’,[81] aggravated his symptoms and resulted in a compensable condition. The Full Federal Court in Wuth[82] held it is not necessary to show a change in condition has occurred, because an ailment can be diagnosed by a practitioner based on ‘the employee’s history, and upon studied instances of cause and effect without recourse to pathology or other diagnostic aids’. A worsening of symptoms, however, ‘does not necessarily compel a conclusion of aggravation’, and ‘care needs to be taken not to conflate the concept of symptoms of disease with the existence or aggravation of an underlying disease’.[83] The Full Court has previously held that changes in the statutory intention of s 5A of the Act have sought to:
[81] Sami (n 65) [54].
[82] Wuth v Comcare (2022) 289 FCR 464, 495 [112].
[83] De Tarle v Comcare (2022) 178 ALD 339, 355 [71], 364 [127] (Abraham J), citing Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘MRCC v May’).
‘…broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1)’.[84]
[84] Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181, 204 [73] (‘Reeve’).
(r)Nevertheless, for the reasons discussed above, the Applicant’s unreliable narrative, limited nature of the medical evidence, and conditional basis on which Dr Turnbull’s and Dr Khalid’s opinions are based, do not establish that an aggravation of a pre-existing condition occurred. The Applicant’s mental health was sufficiently stable in early 2023 for Dr Parshekooh to clear him for an unrestricted return to work. He did not see Dr Parshekooh until 6 March 2023, four days after the events he complains about, nor did he see a psychologist, psychiatrist, or comparable expert, nor have his medication increased. There is insufficient evidence for the Tribunal to be satisfied he suffered either a new condition or an aggravation of an existing condition, much less the ‘melt down’ claimed at the current hearing. The reports of his symptomology on 2 March 2023 include that he became ‘psychologically unwell’ immediately upon observing Mr Harrison giving him ‘the eye’ from a distance, and later felt hot and needed to cool himself off with wet paper towels.[85] The evidence does not persuasively establish he suffered an ailment that was contributed to a significant degree by employment. The Tribunal is not satisfied he suffered a disease pursuant to s 5B of the Act[86] and is therefore not liable to compensation for an ‘injury’ pursuant to s 14 of the Act.
[85] Exhibit R1, 89.
[86] MRCC v May (n 83) 483 [57], 484 [62].
(s)Having decided that the Applicant did not suffer an ailment that was contributed to, to a significant degree, by his employment and is accordingly not a ‘disease’ pursuant to the Act, it is unnecessary to consider whether any disease resulted from ‘reasonable administrative action taken in a reasonable manner’ by the Respondent, such as to exclude it from the definition of ‘injury’ at s 5A(1) of the Act. The Tribunal does so for completeness. Even if the Applicant did suffer a psychological ailment or aggravation of an ailment on 2 March 2023 (which the Tribunal finds he did not), this hypothetical outcome resulted from reasonable administrative action taken in a reasonable manner, thereby disentitling him to compensation. The Applicant’s objection to Mr Harrison’s direction, which was an administrative action directed in respect of employment,[87] relates to a benefit the Applicant sought to retain by being able to drive a gas forklift in accordance with his preference.[88] The Applicant sought to protect this benefit by asking Mr Zaldarriaga and Mr Dimitrievski to accompany him to Mr Harrison’s office. His dissatisfaction about the loss of this benefit is evident even after he agreed to comply with Mr Harrison’s request to help another employee in the airside section of the MGF. The Applicant left the workplace in protest soon after – not because Mr Harrison gave him ‘the eye’ from a distance - but because he objected to the direction given and did not want to work under Mr Harrison’s supervision.
[87] Reeve (n 84) 192 [31]-[33] (Gray J).
[88] The Act (n 1) s 5A(2).
(t)Whether Mr Harrison’s conduct is reasonable, is ‘a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned’.[89] This does not need to be the sole cause for the claimant’s injury, nor does it turn on whether the relevant action could have been done more reasonably.[90] The High Court has held that excluding a compensable injury due to reasonable administrative action requires an assessment of the:
[89] Comcare v Stewart (2019) 165 ALD 7, 23 [62] (Robertson J).
[90] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105, 128 [79] (French J); Comcare v Martinez (No 2) (2013) 212 FCR 272.
‘…contribution made to the suffering of the disease by an event in the course of…employment which answers that description of reasonable administrative action…What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease…That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment’.[91]
(u)The Tribunal finds it was entirely reasonable for Mr Harrison to have implemented L&D refresher training policy. It was also reasonable for him to convey the refresher training direction through Mr Awad, who was the Applicant’s team leader. The Applicant had returned to full duties and there was nothing evident in his emotional state to suggest a different approach ought to have been adopted. Given the Applicant was rostered for ‘ad hoc’ duties that day, it was also reasonable for Mr Harrison to direct him to undertake other workplace duties until he completed the required refresher training, regardless of Mr Osman’s preference. Subsequent directions and decisions by Mr Harrison, such as not giving the Applicant a copy of the L&D email on privacy grounds, directing him to help another employee, and asking the Applicant to go upstairs as a means of alleviating disruption to the workplace, were also reasonable and taken in a reasonable manner. There is no evidence any of Mr Harrison’s conduct constituted targeting, bullying, harassment, or differential treatment as claimed, such as to contribute to an ailment. The Applicant’s outburst at Mr Harrison, decision to call police, and insistence on going home, were made on the flimsiest basis, and imagined injustice. Mr Harrison’s conduct was reasonable and provides no justification for the Applicant’s responses on 2 March 2023 or his revisionist allegations about what occurred.
(v)As for the submissions made about Sami, there is no doctrine of stare decisis or equivalent of judicial comity in the Tribunal. Moreover, the factual matrix in Sami is different to the present matter and distinguishable for the following reasons:
(i)Mr Sami experienced chronic pain and disability from back surgery six years earlier, which contributed to psychological problems that enlivened concerns about his future employment prospects.
(ii)Some of Mr Sami’s claims related to involvement in a very violent and traumatic incident while driving a vehicle at work, causing PTSD and major depressive disorder. The Tribunal found his PTSD was an ailment as defined in the Act and was significantly contributed to by employment. The Tribunal also found Mr Sami received unfair treatment from a supervisor. In this sense, his ‘perception that he was treated unfairly’, had a basis in reality.[92]
(iii)Mr Sami’s supervisor was found to be ‘a less reliable witness’,[93] and the Tribunal held that two redundancy processes involving the Applicant were not taken in a reasonable manner. Moreover, there was ‘nothing to suggest Mr Sami had a predisposition to the disease or that there were any matters not related to his employment or affecting his health which were relevant’.[94]
(iv)The medical evidence in Sami, including from a psychologist and two psychiatrists, was more reliable than the present matter.
[91] Comcare v Martin (2016) 258 CLR 467, 479-480 [44]-[47]; Lim v Comcare (2017) 154 ALD 413, 422-23 [41].
[92] Sami (n 65) [51]; Salters (n 66).
[93] Sami (n 65) [61].
[94] Ibid [53].
CONCLUSION

The Tribunal is unpersuaded by the Applicant’s claims that the workplace events of 2 March 2023 constitute bullying, harassment, or contributed to a significant degree to him suffering a psychiatric ailment. He may have felt angry, hot, or unwell because of these events, but none of the administrative actions taken that day, including a direction that he not drive a gas forklift outside until completing refresher training, did not constitute adverse treatment. The employer took Mr Osman as they found him upon his return to work in early 2023. He has made complaints in the past and had an extensive log of claims before the FWC alleging bullying and harassment against Mr Harrison, Ms Eishold, and others. Arrangements were put in place for how Ms Eishold could interact with the Applicant. Mr Harrison conveyed the direction about refresher training through the Applicant’s team leader rather than directly. His later direction to the Applicant to assist another employee was done in the presence of the Applicant’s two support persons. The Applicant has misattributed his psychiatric symptoms to purportedly ‘adverse actions’ that did not occur.
The requirements for a disease under s 5B(1) of the Act and for an injury under s 5A of the Act are not made out. For completeness, the Tribunal is also not satisfied there was an injury (other than a disease), nor a physical or mental injury in the primary sense of that word. Absent an injury, there can be no compensation entitlement. Even if the Tribunal is wrong about these conclusions, the exclusionary provision at s 5A(1) of the Act applies in the specific circumstances of this case. It follows that the decision to reject Mr Osman’s claims for compensation was correct and the reviewable decision is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision of Senior Member A. A. Nikolic AM CSC

.............[sgd]...........................................................
Associate
Dated: 4 July 2024

Dates of hearing:
5-6 and 12, 14-16 February 2024, and 28-30 May 2024

Counsel for the Applicant:
Ms Cassie Serpell

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Mr Joe Ferwerda

Solicitors for the Respondent: Moray & Agnew

Dates of hearing:	5-6 and 12, 14-16 February 2024, and 28-30 May 2024
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr Joe Ferwerda
Solicitors for the Respondent:	Moray & Agnew