Peters and Comcare
[2004] AATA 435
•3 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1541
GENERAL ADMINISTRATIVE DIVISION ) Re EMILY PETERS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Dr P Fricker, Member
Date3 May 2004
PlaceMelbourne
Decision1. The decision under review is set aside.
2.In substitution, the Tribunal decides that Ms Peters suffers from an injury, namely depression, to which her employment with Centrelink contributed in a material degree and that she is entitled to compensation for medical treatment and for incapacity for work resulting from that depression commencing from 30 June 2000.
3.The Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 that the costs of the proceedings be paid by Comcare.
(Sgd) Joan Dwyer
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – applicant suffering from clinical depression – whether caused or contributed to by her employment – whether incapacity for work resulted from condition – whether applicant required medical treatment – series of work incidents – work incidents caused applicant to feel anxious and upset – contribution of marriage break-up and deaths of father and brother – medical evidence – meaning of “injury”, “disease” and “ailment” – meaning of “contribution in a material degree” – finding that work incidents contributed to depression in material degree – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 s4
Compensation (Commonwealth Government Employees) Act 1971
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43
Treloar v Australian Telecommunications Commission [1990] 12 AAR 535
Suters v Australian Postal Corporation (1992) 28 ALD 320REASONS FOR DECISION
3 May 2004 Mrs Joan Dwyer, Senior Member
Dr Patricia Fricker, Member
1. This is an application for review of a decision made 9 October 2001 (“the reviewable decision”), under the Safety, Rehabilitation and Compensation Act1988 (“the Act”). The reviewable decision affirmed an original determination dated 27 July 2001, that Comcare was not liable to pay compensation to Ms Peters for “clinical depression”. The issues in the matter are whether Ms Peters’ employment with Centrelink caused or contributed to her suffering depression for which she required medical treatment in the period from late 1998. If it is a compensable injury, questions arise as to whether there continues to be any employment contribution to the depression. There are also questions as to whether incapacity for work resulted from depression, and as to whether Ms Peters required medical treatment for depression contributed to by her employment.
2. Mr Carey of Counsel appeared for Ms Peters. Mr Lenczner of Counsel appeared for Comcare. Ms Peters gave evidence. Evidence on her behalf was also given by her former treating general practitioner, Dr Vasudevan, and by her treating psychiatrist, Dr Hickingbotham. The respondent called Dr Strauss, a psychiatrist, and Ms Ward, Ms Deguara and Ms Hebb, who all worked for Centrelink during the relevant period. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and the exhibits tendered during the hearing.
BACKGROUND
3. Ms Peters, who was aged 31 at the time of the hearing, started working for the Department of Social Security (“DSS”), now Centrelink, in 1989. Ms Peters was employed as a full-time permanent Financial Information Service (“FIS”) Officer, during the relevant period, first, at the Centrelink St Albans office and, from July 1999 when there was a relocation, at the Watergardens Customer Service Centre.
4. There is no dispute about the fact that Ms Peters had a very difficult family background, and that the problems she experienced were of a nature likely to have some impact on her psychological health. Nor is there any dispute about the fact that from the time when she started with Centrelink as a youth trainee in April 1989, she showed considerable aptitude for her work and for the study, which was an essential component of the youth traineeship. Ms Peters had left school at age 14. Except for a short period as a florist’s assistant, she was unemployed until starting her youth traineeship. Within about 2 years of starting with DSS, she had become a permanent officer. Ms Peters then progressed through a number of promotions including a position as a Complex Assessments Officer. She was first appointed as an acting FIS officer in 1994 or 1995. Subsequently she was promoted to that position. That is a senior position in any Centrelink office. Ms Peters said she loved her work. We find that it played a very important role in her life.
5. So far as the evidence before us reveals, everybody who worked with Ms Peters at Centrelink prior to late 1998 recognised that she performed her duties very satisfactorily at all times. Ms Peters said that Ms Ward with whom she had worked prior to September 1996 had given her a “glowing” reference when she had applied for the acting FIS officer position. From 1995 Ms Ward had been the manager of the St Albans office but she transferred to other positions from late September 1996 to late September 1998. After Ms Ward returned to her position as manager of the St Albans office in late September 1998, Ms Peters said that Ms Ward seemed to have a different attitude to her. It was her perception that she and her work were no longer held in as high regard. She felt that Ms Ward had lost confidence in her, and there were problems in the interpersonal relations in the office which impacted on her, particularly because of her role as a Staff Support Officer.
6. Ms Peters claimed that there were incidents associated with her employment which hurt and distressed her and made her feel confused and anxious. It was her case that they had an effect on her health and caused her to see a doctor in late 1998 about symptoms which were later diagnosed as secondary to depression. From May 1999 she was prescribed anti-depressants. Ms Peters continued to work full-time, although in January 2000 she raised problems associated with her employment with Ms Hebb, who was a Human Resources (HR) advisor with Centrelink from 1998-2000. Ms Hebb referred her to a psychologist, Ms Frankcom, who she saw on one occasion only. Ms Peters continued at work until she went off on wedding leave on 21 February in anticipation of her wedding on 12 March 2000. On 17 April 2000, Ms Peters returned to work after the wedding and, almost immediately, arranged a temporary transfer from the Watergardens office to a National Administration position out-posted to Melbourne. Ms Peters had arranged extensions of the four week temporary transfer and was in the process of attempting to have that position made long-term when her marriage broke-up and she required sick leave. Unfortunately sick leave could not be granted without her nominally returning to her substantive position at Watergardens office.
7. The sick leave was extended. In early 2001, just when Ms Peters was about to attempt a graduated return to work, a number of family tragedies occurred. After less than 2 weeks of part-time work in February 2001, Ms Peters required more time off work. She had not lodged any claim for compensation up to that time, but she had used up all her paid sick leave. She attempted to access her three months of accrued long service leave but her application to do so was refused. Ms Peters sought assistance in accessing that long service leave from Ms Hebb, who supported the manager’s decision. Ms Peters in discussion with Ms Hebb, mentioned that she believed she would have been entitled to claim compensation for her absence but had chosen not to do so. Ms Hebb suggested that she make a claim and sent out the necessary forms. Ms Peters completed them on 19 April 2001 and lodged them with Comcare.
8. The respondent conceded that Ms Peters suffered from a depressive condition. The respondent’s case was that the depression had not been contributed to by employment, and if Ms Peters believed that it had, her perception was mistaken. The respondent contended that the depression was caused by Ms Peters’ dysfunctional family life, including abuse by her father and sexual abuse by two brothers, by the deaths of her mother, father and brother, and by the break-up of her marriage due to her husband’s violent and abusive behaviour.
THE SITUATION IN THE WORKPLACE
9. The first question is whether there was any basis for Ms Peters’ perceptions that from late 1998 her work was no longer appreciated by Ms Ward, and that from late 1998 to May 2000, when Ms Peters transferred to the National Administration position, personal relations between her and Ms Ward had become strained. Ms Peters also expressed concern about Ms Ward’s management style and the impact it had on other staff in the office. She explained that because of her role as a Staff Support Officer those issues placed her in a position where she sometimes had to present a position which was in conflict with that of Ms Ward and Ms Ward did not like that.
10. In her evidence, Ms Peters discussed a series of matters relating to the workplace, which she saw as contributing to her depression. She mentioned some matters as to which the evidence establishes that her perception was mistaken, namely her belief that Ms Ward was instrumental in Ms Deguara being promoted to a team leader position and her belief that Ms Ward and her “clique” of team leaders regularly lunched together. However, her evidence also referred to a number of other matters which we find did occur. The issue is how they happened and what effect, if any, they had on Ms Peters’ mental health.
11. Some of those matters seem comparatively trivial. A person with a more robust psychological make-up would probably not have been affected by them, or, as Mr Lenczner submitted, their effect would have been passing. However, the medical evidence establishes that due to her background, Ms Peters was psychologically fragile, and that her work and the high regard in which she was held in the workplace were very significant for her and had more serious consequences than might otherwise have been expected. Also the unfortunate juxtaposition of continuing problems or difficulties at work, with the break-up of her marriage and the deaths of her father and brother meant that Ms Peters did not have time to get over one problem before she was confronted by another.
12. The work-place matters relied on by Ms Peters are set out below, and will be discussed in detail in the following paragraphs:
a) Discussion concerning performance statistics
b) Note left on file containing critical printout
c) Moving of desks in the St Albans office
d) Retirements Team Leader position
e) Retirements Team restructure
f) Opening night function
g) Issues arising from role as a Staff Support Officer
h) Joke
i) Ms Peters’ phone calls
j) Increase in wage increment
k) Refusal of access to accrued long service leave
a) Discussion concerning performance statistics
13. Ms Peters gave evidence that, shortly after Ms Ward returned to the St Albans office, she questioned Ms Peters about her statistics and in discussion said that Ms Peters’ workload was “pretty light on” (trans p26-27). Ms Peters said that she felt Ms Ward “was checking up on me and didn’t really trust what I was saying to her”. She added, “I felt degraded, I felt as though she didn’t see me as a senior staff member” (trans p27).
14. Ms Ward agreed that such a discussion had taken place shortly after she returned to her position as manager of the St Albans office, after having spent two years in other positions with Centrelink. She said it would have been in late 1998 or early 1999. She explained that it was part of her process of familiarisation with the area, after being out of it for some time. Ms Ward explained, “statistics is your major indicator about what might be happening in an office” and said “the starting base was the statistics” in terms of assessing performance (trans p360). She also acknowledged in her statement that she did not understand all the complexities of FIS Officers’ performance standards and that Ms Peters explained them to her in those discussions (R4 p6 & trans p335).
15. Both in the written statement (R4, p6) and in her evidence before the Tribunal (trans p360), Ms Ward denied using the phrase “pretty light on” as to Ms Peters’ statistics. Ms Ward also denied, in her evidence before the Tribunal, that she was critical of Ms Peters’ performance (trans p360).
16. We accept that Ms Ward may not have used the precise words, “pretty light on”, but we find that she did give the impression to Ms Peters that she thought her statistics were inadequate. We do not accept Ms Ward’s evidence that she was not critical of Ms Peters’ performance as a FIS officer. That evidence was inconsistent with her statement of May 2001 (T5) in which she wrote:
There were times when Emily was not achieving the required results and at those times I would raise the issue with her…I did compare her performance and that of the other FIS officers in Area West so we could identify officers who performed well and learn from them. The officer who replaced Emily when she took up a position with NSO was very quickly able to identify why targets were not being achieved and implemented strategies which enabled us to not only meet those targets but to then sustain those results.
17. We find that the tone of that statement, and its content, supports Ms Peters’ evidence that Ms Ward expressed dissatisfaction with Ms Peters’ performance. That dissatisfaction is clear from the fact that Ms Ward compared Ms Peters’ performance unfavourably with that of other FIS officers in Area West, and later with the officer who replaced her.
18. The Tribunal finds the discussion about performance statistics probably took place in late 1998 rather than early 1999 because of Ms Ward’s evidence about the issue. Ms Ward said that when she returned to St Albans office the key focus was on improving its performance as it had the “reputation of being traditionally not a good performer in relation to KPIs (Key Performance Indicators)” (trans p347). Ms Ward said that she was looking for the key areas she needed to focus on to move the office forward. We find she would have been doing that shortly after returning to the St Albans office.
19. We find that, in the discussion about Ms Peters’ performance statistics, Ms Ward was, at first, critical of Ms Peters’ performance because she did not fully understand the nature of how FIS targets were determined. We accept Ms Peters’ evidence that this issue seemed to her to show that Ms Ward, with whom she had previously, in her view, had an excellent working relationship, no longer trusted her to do her job well. We accept Ms Peters’ evidence that she found that distressing.
20. We find, from Ms Peters’ evidence, that it had been important to her that Ms Ward, who was a senior member of staff, had a high regard for her and her work, when they had worked together before September 1996. She was proud of Ms Ward’s “glowing” referee report, when she was promoted to the FIS officer position (trans p128). She felt that it had been significant in helping her career advance so well, when she was still young and had come to Centrelink with a very disadvantaged background. While Ms Ward seemed to hold a favourable opinion of Ms Peters’ abilities, she did not appear to consider that she and Ms Peters had as close, or as significant, a working relationship as did Ms Peters. We find Ms Peters expected more of the relationship than was apparent when Ms Ward returned to the St Albans office, with the brief to improve its performance. It was in that context that she found Ms Ward’s criticism of her performance statistics particularly distressing.
b) Note left on file containing critical printout
21. Ms Peters referred to an incident in March 1999, when she found a file on her desk with a note on the front of it, in Ms Ward’s writing saying, “come and see me about this case” (trans p27). Ms Peters said that there was a printout on the file from Ms Ward’s husband, Tony Ward, of Centrelink’s Identity Fraud Section (trans p27). The letter from Mr Ward was dated 9 March 1999 (R6). It stated:
The above case was recently reviewed by the Identity Fraud Section, Melbourne. ...
However of concern is this customer appears to have sold her former home at [address blacked out] St Albans in late 1998. A ‘DOC’ on her record indicates she phoned Centrelink and advised she had deposited the proceeds into an ANZ account and gifted $10,000 to her daughter. There is nothing to suggest that the customer was requested to provide any documentation to confirm the above information was correct.
An unknown amount of $72,861 has been recorded on the (SVS) screen, the account number is noted as ‘unknown’. This has caused a slight reduction in pension payments.
It would be of major concern if the officer who actioned this case is accepting information over the phone without verifying any details in writing. It is difficult to understand how we can record a customer of having a bank balance of over $70,000 without even knowing the account number. File returned for your information.
22. Ms Peters said that the matters raised by Mr Ward related to her action decreasing the client’s rate of payment. She said there had been a change to regulations concerning the treatment of superannuation payments received by people under 55. The new departmental policy was to reduce rates of payment on the basis of information in review forms, even without supporting documentary material such as verifying bank account details, so as to reduce the likelihood of overpayments (trans pp28-29). Ms Peters said that she considered it strange that Ms Ward had left the file on her desk with the note attached, rather than speaking with her in person (trans p27). Ms Ward said, “it was not unusual for me to leave a sticky note on someone’s desk if I needed to catch up with them” (trans p375).
23. Ms Peters described how this approach of Ms Ward made her feel (trans p30):
Well, it is like she didn’t trust me any more and she didn’t have confidence in me and she was checking up on me and wouldn’t have done that prior to this and the fact that that printout came from her husband’s…it was like she asked him to check up on me or something like that. That is what it seemed to me at the time.
Ms Ward agreed with Mr Carey that it would be preferable, given the sensitive nature of communications from the fraud area, and the possible concerns that an officer might have, to approach the officer personally, rather than leaving a note on their desk (trans p375).
24. The Tribunal finds that the critical tone of the letter from Mr Ward, when Ms Peters was acting in accordance with new instructions of which he was unaware, and the impersonal message from Ms Ward combined to reinforce Ms Peters’ perception that Ms Ward did not trust her and was checking up on her.
c) Moving of desks in the St Albans office
25. Ms Peters said that approximately three months prior to the July 1999 move from St Albans to the new Watergardens office, the specialist officers’ desks, including hers, were moved to a more central position in the office. Ms Peters said in evidence that she was upset that she was not consulted about the move:
I was told when half of the move had already taken place that we were moving to the middle of the office which was central – a central part of the office which was not far from Kerryn’s [Ms Ward’s] desk where she could view my desk from where she was sitting whereas previously she couldn’t.
Had you been invited into any discussion about the move? --- No, that is why I was disappointed because I wasn’t consulted about it. Apparently some of the specialist officers, because it was not just myself that was moved, there were four of us, apparently some of the other specialists were consulted and they were happy to move but it was more or less a – not really a choice, you know, you are going to that section of the office, and that is what annoyed me. The other part that annoyed me, I guess, was that we were moving to a new office very very soon, it was going to be three months till we moved to Watergardens and I didn’t want to have to shift all my files and everything to this other desk and then have to shift it all again (trans p30).
26. Ms Ward said that she was unable to remember the desks being moved and did not know whether Ms Peters had been consulted. She said, “I can’t imagine that I would have asked a person to move or made a decision about a person moving their desk without first talking to them about it” (trans p358). Ms Ward accepted that it might cause resentment if the move was not supported by the person whose desk was being moved (trans p359).
27. Ms Hebb said that she recalled Ms Peters speaking to her about her desk being moved, and saying that she felt the specialist officers had not been adequately consulted (trans p458).
28. The Tribunal accepts Ms Peters’ evidence and finds that the moving of the specialist officers’ desks, including hers, occurred without consultation with her. We find that it was upsetting to her, because of the lack of consultation and because of the lack of explanation or apparent reason for a move shortly before the whole office moved to Watergardens.
29. We find that Ms Ward did not intentionally exclude Ms Peters from discussion about the issue. The evidence establishes that there were many times when Ms Peters was out of the office performing duties associated with her position as a FIS officer. It is probable that the discussion occurred when she was absent from the office. However we do find that the matter was of concern to Ms Peters. This is established by Ms Hebb’s evidence that Ms Peters spoke to her at the time about her concern about the issue. We find that it was important to Ms Peters, bearing in mind the other problems she was having in the office about that time. Ms Peters saw it as another instance of her work not being adequately recognised. She felt that she was being sidelined and left out of decision-making which affected her. We find that, because the issue was not particularly significant to Ms Ward, she did not precisely recall the circumstances of the move.
d) Retirements Team Leader position
30. At approximately the same time that Ms Ward raised questions about Ms Peters’ statistics and workload, she asked Ms Peters if she was interested in taking on the additional position of Retirements Team Leader. Ms Peters said, “I wasn’t really interested as I had a lot on” (trans p32). The team leader position was an ASO5 position. Ms Peters was already working as an ASO6. She explained, “although it is a supervisory position, it is a lower position to the position I was doing” (trans p42). Ms Peters initially rejected the position and Ms Ward respected her decision. She said, “Emily declined to take it on because she felt it would impact too heavily on her workload. I respected Emily’s assessment and we agreed not to progress the idea any further” (T5 p 38).
31. Ms Peters said that, approximately five months later, she heard from another staff member that she was going to be the new team leader of Retirements (trans p32). She said she was shocked that someone told her what she was going to be doing, before she knew it herself. She said she did not approach Ms Ward about the matter as it was not official.
32. A short time later there was a leadership meeting at which it was mentioned that a new marketing team was being created and that this would lead to some swapping of team leaders. After that meeting there was an occasion when Ms Ward called Ms Peters into the staff room. Two other team leaders, Ms Deguara and Mr Volpato, were also present. Ms Peters was again asked whether she would take on the Retirements Team Leader position. Ms Peters said that Ms Ward, Ms Deguara and Mr Volpato had been discussing the issue amongst themselves before she was called in, and she was “more or less coaxed into saying yes” (trans p34). Ms Peters acknowledged that she could have said “no”. She said that she said “yes”, because, “I didn’t think it would improve our relationship if I said no again” (trans p182). Ms Peters said that she was upset about the way Ms Ward handled the situation. She felt pressured into the position because the offer was made in front of others rather than to her in private, and because the issue had been initially discussed with other team leaders, at a meeting to which she had not been invited, even though the meeting discussed her position in the office. Ms Peters said that she felt very hesitant about taking the position and explained that if it was too much or impacted on her FIS role she would “give it back” (trans p182).
33. Ms Ward accepted that it was possible that Ms Peters may have heard about the mooted change in her role prior to her meeting with Ms Peters (trans p363). Ms Ward explained why the change in her position may not have been discussed with Ms Peters prior to her being called into the meeting with Ms Deguara and Mr Volpato:
Well, if there were a whole range of issues about the move to Watergardens being discussed in that meeting, and she wasn’t there, then that is a possibility, that could have been, that could have happened. My recollection is that we were talking about how we might, you know, some of the structural issues, how they might evolve when we got to Watergardens. I recall Emily being around at the time, and we called her in to talk through what we had already been talking about (trans p365).
Ms Ward said that she did not believe Ms Peters had to make her decision on the spot, but that if she felt that she did, it may have placed her in a difficult position (trans p365).
34. According to the evidence of Ms Deguara, it was not an unusual situation. She explained that it was not that she and Ms Ward and Mr Volpato were discussing Ms Peters’ career in her absence. She said they were rather discussing different options for the Retirements Team Leader position. Then Ms Peters walked past and was called in to continue the discussion (trans p420). Ms Deguara said:
We were discussing different options for the Retirements Team Leader. To explain that a little bit further, we previously had one team leader, Rick Vulparto, and he was the team leader of the disability and retirements team. They were a combined team. The directive was that we were moving the disability team in with the employment services team, so they were going to come under my team. So we had a team of two people and it was unrealistic and - yes, it was unrealistic that we would have one team leader to supervise two people because we just didn't have the resources available to allow for that. So we were talking about different options that could take place. One of those options included moving the retirements team in with the families team but they are very different client base. So that was one option.
Another option was that Emily, or the FIS officer, could take on a supervisory role for those two to three staff and it was just a general discussion about that and Emily walked past and continued the discussion.
35. Ms Hebb said that she recalled Ms Peters speaking to her about her concerns in taking on the Retirements Team Leader role (trans p442):
Now, this is a vague memory, but I have a feeling her saying to me that as part of feedback when Kerryn had mentioned development needs to her Kerryn may have couched that in terms of staff supervision with somewhere where she was lacking in experience, but on the other hand, Emily was concerned because the FIS officer was very much a full time job and also she was doing that voluntary role of Staff Support Officer. So it was quite - well, she was certainly finding the thought of it I think a bit daunting.
36. The Tribunal accepts the evidence of Ms Peters and finds that she was upset about the way the situation was handled. We find that Ms Peters felt pressured into accepting the team leader position, because she was called in and asked whether she would take it in front of two other team leaders who had been discussing the proposal in her absence. We find that she was hesitant about taking on the role because she did not know whether it would interfere with her FIS duties. She took it because of her perception that she was not getting on well with Ms Ward and she wanted to comply with her request if possible, but she told Ms Ward that if she had difficulty combining the position with her FIS officer role, she would not keep it. Ms Peters felt that Ms Ward should have discussed the position with her in private rather than in front of two other team leaders.
37. Ms Peters summed up her perception of the situation:
It wasn’t a discussion, it was very one sided. I walked into the room. She threw something on me, I accepted it and walked out (trans 186).
She added:
The whole point is her attitude towards me changed dramatically from 1999 when she came back…sorry late 1998 and I couldn’t work out why; I didn’t know why. I was at a loss why so it doesn't matter what I tried to some way heal the relationship that is why I took on this team leader role because I thought, okay, maybe if I am more involved in the teams, maybe if I do this, maybe if I do more as a staff contact officer, maybe she will see this or - I tried everything to show her that I was worthy and I just wasn't getting any credit for anything I was doing (trans p188).
38. The Tribunal finds that, in the situation in which Ms Peters found herself in early 1999, where Ms Ward seemed to be dissatisfied with her performance and to be closer to other senior staff (as will be discussed later), she felt under pressure to accept the position of Retirements Team Leader, when she was asked to do so for the second time. This was even though she was anxious that it would interfere with her FIS officer duties. One factor which affected her decision was that she felt she would lose face if she refused the position, because it was offered to her in front of others.
e) Retirements Team restructure
39. When Ms Peters’ commenced as leader of the retirements team after the move to Watergardens in July 1999, she was informed that one team member would have to leave the team. This was to accommodate a new member, Ms Peters’ back-up FIS officer. Ms Peters explained the problem that developed (trans p39-40):
I knew that the two staff members that were there, another one would have to go as well because my back-up as a FIS officer was going to also join the team. He was moving from the Newstart section to the retirement section so we needed training but it was felt that it was useful for him to be in that team because of the fact that he was my back up. But like I said when it changed from three people to two I asked Kerryn at that time and I said, well, who is going to be the one to leave and she said, well, whatever you like, you can work it out, do whatever you like, type thing, and I went and - I approached my three staff members at the time and I asked them and no one was willing to leave. So I went back to Kerryn and I explained that to her and I said the fairest way that I think I can do it is just put the names in a hat and draw them out. So that is what I did, after consultation with Kerryn again - I checked with her and she said that was fine. Drew out a name. The name that I drew out was Kate. Kate was very upset with this, she didn't want to leave the team - no one did - however when I told Kerryn that Kate was the name that was chosen Kerryn then said to me, no, no, we can't get rid of Kate, we have to get rid of Daniel.
No who is Daniel? --- Daniel was another gentleman in the team, one of three original members of that team that I was supervising.
Is Daniel an experienced officer? --- Yes.
And how did you interpret her comment that you had to get rid of Daniel? --- Well, I didn't think it was very fair and I told her that she had put me in a very difficult position because I did what I thought was the fairest thing in front of them, announced that it was Kate, and Kate – they were all there, witnessing it, and then all of a sudden she says, no, no, you can't get rid of Kate, now it is Daniel, and I said I felt terrible doing this, that I would explain to them to the best I could that Daniel was the one that had to go into the marketing team and leave my team. When - - -
Did you talk to Daniel about that? --- Yes, that is what I was going to say, when I did discuss this - I discussed it with all of them and I had Daniel there and Daniel said to me that he wasn't happy about this, he didn't think it was fair. He felt that Kerryn might have had something against him. He said that he had some issues he wanted to speak to her about and if I could pass that on to her, so I did that, and I still had said to her that it wasn't the whole thing wasn't fair and she said, don't worry, I will talk to him about it and just said I think you have handled it well.
And did you think you had handled it well? --- I think I handled it well but I don't think she handled it well.
And how would you say that she didn't handle it well? --- The fact that she changed her mind, the fact that it was first off anyone, whoever is picked, and I even consulted with her prior to doing this hat - picking a name out of a hat and she seemed very happy with it and then once I had done that she changed her mind and I guess that put me in a position where I feel that I may have lost some respect from my staff members because of it, my three staff members that were in my team.
40. Ms Ward agreed that when Ms Peters suggested to her that the decision who was to leave the team be made by drawing a name out of a hat, she did not express any objection to that method of making the decision. She said, “No, I didn’t oppose it… if that was what they had all agreed”. Ms Ward said that if Kate had agreed to the move she would have gone along with it. Apparently it was only because of Kate being so upset that the decision was changed.
41. In her written statement (R4 p8), Ms Ward described the events as follows:
It was the Team that decided to vote by pulling a name out of a hat not I. Kate’s name was drawn so she became upset about leaving the Team. I discussed the issue with Emily as to the skills that Kate had. She did not have experience in work with other teams, and therefore, moving her, apart from the fact that she was upset, would have required a significant degree of retraining. A member of the team, Daniel, had experience in another area and it was logical, therefore, to move Daniel. I had nothing against Daniel and I talked to him about this matter.
42. Ms Ward acknowledged that she took over the decision and that it became her decision (trans p368). Ms Ward said that she did not believe that she had undermined Ms Peters, “Not in the context in which it happened, because I felt that what had happened when Kate was upset about having her name pulled out of the hat, that Emily had come to me because the situation had not worked” (trans p369).
43. We find that while Ms Ward’s selection may well have been a better decision, because Daniel had more transferable skills, it would have been preferable if that suggestion had been made by Ms Ward to Ms Peters, prior to the names being drawn from a hat. Ms Peters was very new in the role of a team leader and Ms Ward had a great deal of management experience. If Ms Ward had suggested that Daniel was the preferable choice prior to Ms Peters drawing the names from the hat, Ms Peters would not have felt that her position was undermined and she and the team would not have had to undergo Kate being so upset or Daniel having to move, even though he had not been the person selected by the agreed method.
44. The Tribunal finds that the incident put Ms Peters in a very difficult position. Ms Ward went along with Ms Peters’ suggested method of choosing who should leave the retirements team, but, when the chosen person was upset, she decided to take over the decision, which undermined Ms Peters’ role as team leader. We find that because it was an emotional issue, with Kate in tears, and because Ms Peters’ position was undermined by Ms Ward taking over the decision-making and choosing Daniel to leave the team, Ms Peters, as she said, “felt terrible”.
45. Some time towards the end of 1999, Ms Peters decided that she did not want to continue in the team leader position. She told Ms Ward and her decision was accepted.
f) Opening night function
46. Ms Peters said that there was an opening night function in the Watergardens shopping complex to which most senior staff members were invited, but that she was not invited. She said that Ms Ward, the team leaders and some members of the marketing team attended the function (trans p42-43). Ms Peters described the effect this had on her: “Well, once again I didn’t feel like I was included. It wasn’t the first time that I wasn’t invited to something that I felt I needed to be at…” (trans p42).
47. In her written statement, Ms Ward described the circumstances surrounding the function (R4 p 9):
The shopping center at Water Gardens organized a party and to award presentations for all of the tenants at the shopping center. Centrelink was allotted two tickets but everyone else was invited by email (mailing list) and it provided that if anyone wanted to come to the party they would need to pay the cost of the ticket of about $10.00. I arranged for the emailing of the invitation to the Centrelink Officers and advised that the two tickets free of charge would be pro rata against the price of tickets for those who wished to attend. It was a venture primarily of interest to the Marketing Team and I recall that members of that Team did come. There was no discrimination against Emily nor anybody else.
48. In her evidence Ms Ward said that “Emily was invited along with everybody else in the office” (trans p378). Ms Peters said that she did not receive any email which invited everyone to the function (trans p191). Ms Deguara said “an email was definitely sent out and the invitation was in the tea room” (trans p433). The email was unable to be produced to the Tribunal.
49. The Tribunal accepts Ms Peters’ evidence that she felt upset and offended because she believed that she was not invited to the function. The evidence as to whether Ms Peters was invited by email, along with other staff, is inconclusive. Both Ms Ward and Ms Deguara said that an email was sent to all staff. However the email was not tendered in evidence. Ms Peters said she did not receive any such email. We cannot find on that evidence whether or not an email was sent to Ms Peters, but we do accept her evidence that, even if it was sent to her, it did not come to her attention. It is unfortunate that the issue was not clarified before the function took place. We find that, not knowing the basis on which other staff had been invited to the function, Ms Peters was hurt that she had not also been invited.
g) Role as Staff Support Officer
50. Shortly after Ms Peters joined the DSS in 1989 she was appointed as a Staff Support Officer, a role she continued to perform until she ceased working in February 2001. This was a voluntary position. Ms Peters described the role as follows:
The role of the Staff Support Officer is basically to be there for the staff, if staff want someone confidential to talk to. It could be as a first point prior to a referral to a staff counsellor or it could simply just be a matter of listening and ending it there or it could be cases where I need to discuss issues with the manager if the person would like me to and basically just the general wellbeing of the office, the office morale, give feedback to the leadership team on those sorts of things (trans p15).
51. During her time as a Staff Support Officer, Ms Peters encountered a number of problems raised by staff members. She itemised a number which she raised with Ms Ward in her capacity as Staff Support Officer during the relevant period. These issues, which will be considered in the following paragraphs, were:
(i) The perception of an office clique
(ii) Car parking
(iii) Music in the office
(iv) Use of front door
(v) Issue concerning Ms Hodolic
(i) The perception of an office clique
52. In evidence, Ms Peters described a clique of staff that developed upon the return of Ms Ward to the St Albans office:
She [Ms Ward] seemed to become friendly with a clique of girls, one of which involved this Michelle Deguara that I mentioned earlier and seemed to just stick with this little clique of people and not move to other staff members or not be as approachable for other staff members. (trans p26).
53. Ms Peters said that the group she called “the clique” would have lunch two to three times per week until Ms Peters ceased working in mid-2000 (trans p109). Ms Peters said that the clique “impacted on my role as a Staff Support Officer tremendously because I was having complaints from staff all the time” (trans p75). The clique, according to Ms Peters, also included Ms James, Ms Stricky, Ms Abbott and Ms Hodolic, until she too became upset about aspects of the working environment and left the office (trans p108-109). Ms Peters said they would meet during office hours around someone’s desk for periods of around half an hour (trans p113). She said that the clique did not bother her personally, but “what was bothering me was the injustice and then with people coming up to me all the time and complaining about it and then me trying to talk to Kerryn about it and her dismissing it, so that became a bother to me" (trans p113).
54. Ms Peters said that she raised the issue of the clique with Ms Ward on a number of occasions (trans p101). Ms Ward denied that she had any conversation with Ms Peters related to lunches (R4 p11). Ms Ward also denied the existence of a clique in the office (trans p386) and said that “it was never a practice” of hers to go out with other staff for lunch (R4 p10). She denied that Ms Peters raised with her staff concerns about aspects of her management style related to the perception by staff of a clique.
55. Ms Ward did acknowledge that she would often talk to team leaders about work issues at their desks. She said that she had a closer working relationship with them than with Ms Peters, but she said “I didn’t spend time with them much outside of the office at all” (trans p376). Ms Ward also agreed that it may have appeared that she was going out to lunch with other staff members, due to discussions about work while leaving the office. She said, “we did have a tight knit leadership group” (trans p376). Ms Ward said she did try to include Ms Peters more by talking to her about attending team leaders’ meetings but, “she made it clear to me that she had other commitments and she would attend meetings as she could”.
56. Ms Deguara denied having lunch on a regular basis with Ms Ward, as she said she usually went out with Maria Stricky (R5 p4). Ms Deguara also denied the existence of a clique that would regularly have lunch together (trans p409). We accept Ms Ward’s evidence and that of Ms Deguara that the close working relationship did not extend to lunches outside the office.
57. We accept Ms Peters’ evidence that Ms Ward’s close working relationship with other team leaders gave the impression to her and to others that there was an inner clique of staff who were friendly with Ms Ward. Although Ms Ward and Ms Hebb did not recall Ms Peters raising the staff concern about that issue with them, we find that it is probable that the issue was raised by Ms Peters with Ms Ward and with Ms Hebb.
58. We make that finding on the basis of Ms Peters’ evidence which is supported by the record of Ms Frankcom, the psychologist Ms Peters saw on referral by Ms Hebb on 2 February 2000. Ms Frankcom referred to the issue of the manager being “very defensive and…cliquey” in her consultation record. She also referred to “cronyism between manager and 3 other team leaders”. In the more detailed notes there is a reference to Ms Peters having found Ms Ward very defensive when she tried to talk to her “about clique not favouritism”. We find that on 2 February 2000, Ms Peters would have had a good memory of what had happened at work and would have recounted it to Ms Frankcom.
59. We find this was an issue of concern to Ms Peters because of her responsibility as a Staff Support Officer. We find she felt obliged to raise the matter with Ms Ward and did so, even though that was difficult because of Ms Ward’s defensive attitude to the issue. Ms Peters said it was her perception that Ms Ward was not concerned about what she was saying and that she was not concerned about what the staff thought about her. Ms Peters said the issue arose at the preliminary performance assessment interview in January 2000 (prior to the attendance on Ms Frankcom) and had also arisen about twice before, approximately three months earlier and six months earlier
(ii) Car parking
60. Ms Peters said that another staff support issue she raised with Ms Ward was the lack of car parking space for staff:
Okay, for example when we got to the new office staff were told that they couldn't park in the car park and they would have to park in the parking area of the shopping centre. Well staff weren't very happy about that because when we first got to the office, they parked in the normal car park and walked right into the office and then all of a sudden they are being told "No, you are not allowed to park there and you have to park in the car park of the shopping centre." So I - you know, a lot of staff came to me and said: Oh, that is not fair, why can't we park here, there is a car park here, what do you mean it is just for the clients, the clients don't use this much space, blah, blah, blah; on and on. So I went to speak to Kerryn about it and I just asked her simply why, what is the issue. And she explained to me, and I said, "Well, look" I said "that is fine." I said, "What about if you just send out a memo to the staff just to let them know that the reasons for this are we may have disabled customers, or whatever the scenario is." I said, "Because when you tell people not to do something and don't explain it, they find it harder to take on. If you just explain it to them, I am sure they will understand, they are not idiots." And she sort of said, "Oh, yeah, okay." You know, and she did end up sending something out... (trans p103).
61. Ms Ward said in her evidence that she did recall the car parking issue:
I sent an e-mail out around it, and the rationale behind the car parking was that we needed to make sure that - when we first moved to Watergardens office the car park had not had signage, and so there were issues about, you know, disabled access, and so we just wanted to make sure that customers had the closest access to the building. There was ample car parking in the - across the site anyway. In particular, we had some undercover parking which covered some staff, and there was a lot of parking out the back. But what we wanted to happen was to make sure that there was room there for customers to get in and have easy access to the building (trans p328).
Ms Ward did not recall speaking to Ms Peters about the car parking issue (trans p327).
62. We accept Ms Peters’ evidence that she discussed the car parking issue with Ms Ward in her role as a Staff Support Office, and that in doing so she felt obliged to put to Ms Ward the view that staff members were entitled to an explanation for the changes in practice. We do not find that Ms Ward’s reaction was unpleasant or upsetting to Ms Peters.
(iii) Music in the office
63. Ms Peters said that another issue she raised with Ms Ward on behalf of staff concerned the lack of music in the new Watergardens office (trans p103). Ms Peters said that at the St Albans office there used to be music coming through the ceiling, but this was not the case at the new Watergardens office. Staff brought in radios but Ms Ward did not allow them to play music and was not willing to negotiate on the issue (trans p103).
64. Ms Ward said in evidence, “my recollection on that was that because some people were opposed to it, then it was best not to have the music” (trans p328). Ms Ward did not recall having any specific discussions on this topic with Ms Peters (trans p328).
65. We find Ms Peters did raise an issue about music with Ms Ward but we find it was, as Ms Peters said, “a little thing”. We do not find it was a source of stress or upset to Ms Peters.
(iv) Use of front door entrance
66. Ms Peters said that another issue she raised on behalf of staff concerned which door staff were to use to enter the Watergardens office. Ms Peters described the issue being discussed at a meeting involving team leaders and specialist officers:
What they were looking at doing was putting a new monitoring system on the front entrance of the doors of the office so they could monitor the number of people entering, the number of customers entering and what times was the busiest times. So obviously if staff go through the door it is going to knock that system out of whack. So that was the problem (trans p46).
67. Ms Peters said that the issue was raised at a meeting and there was discussion as to how it should be handled. Ms Ward was leading the discussion. Ms Peters said that Ms Ward said something along the lines of “they are going to complain again when I tell them this” and then said to the person sitting next to her, “you can tell them, they all hate me as it is anyway” (trans p47). Ms Peters added:
…She talked about the staff as though they were idiots in a term like, "Oh, you know how they are, they're all - they're going to be whingeing and sooking about - like they were babies". And I said, "No". I said, "Look, they'll be fine with it as long as you let them know why not to use the front entrance and it's actually in their best interests". I said, "If you deliver it to them correctly I'm sure they won't use the front door and there will be no problem". She also did actually mention just after that she said, "Oh, and they'll probably have a go at me because I'm the one who uses the front door now", with all her friends, you know, when she has her lunch. She did make that comment as well.
68. Ms Peters said there was not much discussion at that meeting or generally at the staff meetings. She thought that was because the senior staff were relatively inexperienced and did not like to disagree with Ms Ward’s views. She said that meant that when she spoke up on behalf of staff, Ms Ward became defensive, “and thought I was having a go at her, which I wasn’t, but because no one else says anything it probably looks like that to her” (trans p48).
69. Ms Ward said she recalled an issue about use of the front door, and sending out an email about access to the doors. However, she did not recall discussing it with Ms Peters (trans p371). Neither did she recall having made the comment that the staff hated her anyway, but she said that if she did so, “it may have been a joke in that context” (R4, p10).
70. We find that the issue did place Ms Peters under some pressure, because she took her role as a Staff Support Officer very seriously. On the one hand she felt that the staff were entitled to be given a reason for the policy, and that if the matter were handled with respect for the staff, it would not develop into an issue. On the other hand, she was already feeling that she had lost the confidence of Ms Ward and that she was outside the group of senior staff close to her. She perceived that her suggestion, although appropriate, may be seen by Ms Ward as disagreement with her management style, and she felt that Ms Ward’s comment about the staff all hating her anyway was inappropriate. We find that the position in which Ms Peters found herself at that meeting was stressful to her.
(v) Issue concerning Ms Hodolic
71. Ms Peters referred to an issue concerning the marketing team leader, Ms Hodolic, as showing that other people also had problems with Ms Ward’s management style. She said that Ms Hodolic, like her, “started on the right side of [Ms Ward] and ended up on the wrong side somehow and had a difficult time of it” (trans p44). Ms Peters said of Ms Hodolic, “she was finding it very difficult and stressful and she felt like she wasn’t getting any support and similar things to what I have said. So she approached me as a Staff Support Officer and discussed these issues with me” (trans p43).
72. Ms Peters also saw the problem with Ms Hodolic as another situation where she felt her involvement as Staff Support Officer was not appreciated by Ms Ward. She said that Ms Ward ignored a suggestion she made when she saw Ms Hodolic crying in Ms Ward’s office, during a discussion between them. Ms Peters described the incident:
Yes, the two of them were in that room because the windows are glass a lot of staff were commenting and noticing this team leader in there crying and obviously they probably felt concerned or what have you but they were all looking that way. So what I thought I might do just as a staff support measure is offer her my interview room as a FIS officer, which is a closed interview room, so I rang through on the phone internally and I just said, "Hi, Kerryn, it's me. It looks like you're in a difficult position. I just wanted to let you know that my interview room is available" and she said, "Thank you" and hung up (trans p44).
73. Ms Peters said that, in spite of her suggestion, Ms Ward did not offer the interview room to Ms Hodolic as an alternative to Ms Ward’s office (trans p44). Ms Ward said that she recalled the particular discussion with Ms Hodolic, but did not recall being interrupted by a telephone call from Ms Peters (trans p371). We find that Ms Peters did make the call and that she made it out of concern for Ms Hodolic’s situation. However, at the stage the call was made it may not have been convenient to change the location of the meeting. It is clear that there were some problems between Ms Hodolic and Ms Ward at the time and that they led to Ms Hodolic moving to a different office. We do not know what they were about, but we find they were of concern to Ms Peters because Ms Hodolic raised them with her in her role as a Staff Support Officer. The matter is mentioned in Ms Frankcom’s clinical record.
74. We find that Ms Peters perceived that her suggestion to Ms Ward was not given the consideration it deserved, but the evidence does not establish that her perception on that issue was well-founded. We also find that Ms Peters was concerned that Ms Ward did not seem to be troubled that other staff could see how upset Ms Hodolic was. She was also concerned about the whole situation related to Ms Hodolic’s transfer to another office.
75. We find that in her Staff Support Officer role, Ms Peters did receive complaints from staff about Ms Ward’s management style. Ms Peters on occasions felt obliged to take these matters up with Ms Ward. Once Ms Peters felt that she was no longer getting on well with Ms Ward, she perceived that, by doing so, she was becoming less popular with Ms Ward. This was a matter of concern to her and added to her feelings of anxiety in regard to the workplace.
h) Joke
76. At the conclusion of the meeting involving team leaders and specialist officers, which discussed, among other issues, the requirement that staff enter through the side and not the front entrance, Ms Peters made an unfortunate joke. Ms Peters described the event in her evidence:
There was a bit of tension in the meeting so at the end of the meeting I felt that I wanted to smooth some of the tension and I made a little bit of a joke. The joke involved Kerryn’s son. I said something along the lines of - I will just tell you that Kerryn has got two sons and they come into the office sometimes and they came in, you know, like over Christmas when we have our Christmas parties and all that sort of thing and they seemed to like me quite a deal ….
How old are these boys? --- Sorry?
How old are these boys? --- One was five - or seven and nine, around that age. Yes, two fairly young boys.
So you got on well with them? --- Yes, very well. … So as a joke at the end - going back to this meeting and the joke, … I said to her at the end of the meeting - she sort of said, oh, well, that is it unless anyone else has got anything to add, and we were sort of walking out the room so it wasn't like a formal part of the meeting, and as we were walking out I sort of said, "Oh, yes, actually I've got something to say", and she said "Oh, what?", and I said, "I'm just wondering if your son's free for a date", and I thought it would be a joke and she sort of said, "Oh, which one?", you know, and I said, "Oh, I don't know, the older one", you know, and she said to me, "Oh, you're sick", and I was laughing because I thought she was - she seemed at that time - it didn't hit me until the next day when she called me into her office but she seemed to take it like a joke and it seemed to work out okay. It wasn't until the next day in the morning she called me to her office and said that she wanted to discuss something and I went in there and she said that what I said the day before had shocked her and I said, "I'm sorry, that was not my intention, it was a joke, sorry that you felt shocked", and she said, "Oh, yes, and it wasn't just me, others felt like that". And at first when she said this to me I thought she was just getting back at me and going to have a bit of a joke but she was serious and I couldn't understand why she felt shocked because of that and it made me feel like I was some sort of child molester or - the way she was coming across as though I had done something very bad (trans p 48-49)
77. Ms Peters said that after speaking to Ms Ward, she started to feel very sad at how Ms Ward had reacted. She said she started crying and went to speak to a Staff Support Officer, Ms Forsythe, about the matter (trans p51). Ms Peters said she also spoke to the Migrant Services Officer who had been at the meeting and asked him if he had heard the joke and what he thought about it. He said he had heard it and that he thought it “silly” for Ms Ward to be shocked by it. Ms Peters said she then contacted Ms Hebb about the matter. Ms Hebb then referred Ms Peters to Ms Frankcom, a psychologist. Ms Frankcom’s notes (A3) show that the joke was the first issue discussed when she saw Ms Peters on 2 February 2000 on referral with presenting problems of “stress and anxiety (adult)” and “work conflict [with] manager”. When Ms Peters saw Ms Frankcom on 2 February 2000, the meeting was said to have been “2 weeks ago”.
78. Ms Ward said that she did not recall there being any tension in the meeting until Ms Peters made the joke (trans p384). Ms Ward described the events surrounding the joke:
Well, I remember the incident, or the issue that we were talking about, and we were in a team leaders meeting, and I think it was towards the end of the meeting Emily made a comment about wanting to date my son. And that sort of - it must have been at the end of the meeting, because the mood of the meeting went really flat. I think people - I got a sense that - and this included myself - that people were just a bit stunned by what she had said. Now, Emily left the room and so did some others, but a couple of other people stayed back in the room and said, I felt that that comment was inappropriate. And I must admit I was still sort of feeling a bit concerned about the comment myself. I left the room and I looked for Emily, but she wasn't there. And so the next day I asked if I could have a word with her, and I raised the issue with her, that I felt that the comment was inappropriate, that others had raised it with me that they felt that it was inappropriate. And at the time Emily spoke to me about, you know, she thought that it was a joke and she didn't mean it to be offensive, and that it was a joke. And from my perspective that was the end of it. I had been able to get across to her how I was feeling about it, and then she did the same, how she felt that it was a joke, and that as far as I was concerned that was it. There was no implication about child molesting.
79. Ms Hebb recalled Ms Peters speaking to her about the joke incident:
…I do recall her expressing concern about a joke that she had made and I believe that was directed towards or about Kerryn's son and I think Emily was perturbed, to say the least, at the reaction that that joke received. I got the impression that was a circumstance where Emily said something and didn't realise that it could be misconstrued before it came out of her mouth. But I think she was certainly rather taken aback by the reaction that it got and I think that certainly made her feel uneasy in her relationship with Kerryn… (trans p452).
80. We find that Ms Ward’s reaction to Ms Peters’ joke did make Ms Peters’ feel as though she had done something very wrong. Ms Peters was upset at how seriously Ms Ward seemed to take the issue, saying that she had been shocked. We find that Ms Peters made an inappropriate joke, however Ms Ward’s reaction to her comment was an overreaction. We find that this was a matter of real concern to Ms Peters because she felt Ms Ward reacted as though she had done “something very bad”. The fact that Ms Peters was concerned about Ms Ward’s reaction is confirmed by Ms Hebb’s recollection and by the notes of Ms Frankcom. We find the incident was a source of sadness, stress and anxiety for Ms Peters and represented a very low point in the relations between her and Ms Ward.
i) Ms Peters’ phone calls
81. Approximately two weeks after the joke incident, Ms Ward spoke to Ms Peters about the audible volume and personal nature of her telephone calls in the office. Ms Peters described the discussion:
I said to her, yes, I understand that sometimes I do talk fairly loud and sometimes I have to talk loud because I am dealing with elderly people who don't hear very well necessarily and she said, yes, that is fine, I am not worried about you talking to the customers, it is particularly the volume on your phone calls discussing your wedding plans. And I said, oh, and she said, yes, because these discussions that you are having about your wedding plans are interfering with staff and their customers when they are trying to do their interviews. I said, really, that is odd. I said, normally people are happy to hear about wedding plans, for one. Normally you wouldn't expect to get married more than once, so, yes, I am excited about it and maybe it shows in my voice and my conversation but I was a little bit surprised that someone would actually complain about that and I said that to her (trans p52).
82. Ms Peters said in evidence, “I thought it was bit petty for Kerryn to raise that [as] an issue, and then I was upset that whoever it was couldn't come to me and let me know, they had to go to Kerryn” (trans p135).
83. Following the discussion with Ms Ward, Ms Peters said that she spoke to her colleagues whose desks were near hers to find out if her calls were bothering them. The first person she approached was Mr Arundell. She asked whether he had a problem with the volume of her voice on the phone. He said, “Oh look, I had nothing to do with it” (trans p53). Ms Peters said that it was apparent that Mr Arundell knew that Ms Ward was going to speak to her about the issue (trans p53). Ms Peters said she then spoke to Mr Volpato, who was probably the closest to where she sat. She gathered that he also knew that Ms Ward was going to speak to her about the volume of her phone calls, and he led Ms Peters to believe that it was Ms Deguara who had made the complaint (trans p53). Ms Deguara’s desk was not close to Ms Peters’ desk, so Ms Peters felt upset that Ms Deguara had complained. Also Ms Peters was upset that it seemed that the other team leaders knew in advance that Ms Ward was going to speak to her about her telephone calls.
84. Ms Ward said in evidence that both Mr Arundell and Mr Volpato had approached her about the volume of Ms Peters’ phone calls. She denied that Ms Deguara had made the complaint (trans p380). Ms Deguara also denied making the complaint (trans p409). Mr Arundell and Mr Volpato did not give evidence so we cannot determine who made the complaint.
85. The Tribunal finds that Ms Peters was upset that whoever made the complaint did not raise the issue with her personally, and that it appeared that others in the leadership team knew in advance that she was to be spoken to about her calls. The identity of the complainant is not so important. The issue is rather that the person or persons did not speak to Ms Peters directly, but raised the matter with Ms Ward, so it became one more instance where Ms Peters felt isolated and once again she received criticism or disapproval from Ms Ward.
j) Increase in wage increment
86. In February 2000 Ms Peters had a preliminary performance assessment interview with Ms Ward, at which it was decided that Ms Peters’ was entitled to a wage increment (trans p121). There was some delay in the payment of Ms Peters’ increment. Ms Peters acknowledged that the delay was probably due to a technical systems fault, but she explained that it also added to the difficulty in her relationship with Ms Ward:
The glitches may not have anything to do with her because she said that there was a systems fault but I needed to ring her three or four times prior to her even coming up and saying to me there was a systems fault and that is why you didn’t get paid and I had to e-mail her as well and my manager that I was working under at that time, Sharon Carroll, had to ring her as well, so it was about four or five months until I got the increment.
…
What I am saying is she didn’t action it straight away and if she had have actioned it straight away, it wouldn’t have been that long so she is partly to blame for the delay, yes, but at the end of the day it was a computer glitch that caused the problem so I am not saying that, you know, she didn’t pay me intentionally but yes, there was some cause for the delay with her (trans p 121-122).
87. Ms Ward was not questioned on the reason for the delay in her evidence, however in her written statement, her explanation was as follows:
I agreed with her application for income increment and that she had satisfied the performance requirements. I actioned the increment following that meeting. I am aware that subsequently there was a delay in payment to her of the increment because of a change in the payment systems. I had recommended that she obtain the increment, and ultimately, she did (R4 p3).
88. The Tribunal finds that Ms Peters did feel that Ms Ward was partly to blame for the delay in payment of her increment increase. She also felt that if there was a technical fault, Ms Ward could have told her sooner. Taken alone, this issue may have been of little consequence, however in the context of the preceding difficulties in the relationship between Ms Peters and Ms Ward, Ms Peters saw this as another example of Ms Ward making life difficult for her, even after she had transferred to another office so as not to have to work under Ms Ward.
k) Refusal of access to accrued Long Service Leave
89. This issue is dealt with in the statements of Ms Peters and Mr Nunan which are included in the T documents. The matter arose at the time when Ms Peters was attempting to return to work on an agreed graduated basis. Dr Mutton, a consultant occupational physician with Health Services Australia, had recommended that Ms Peters return to work, but not at the Watergardens office for the first month. The return had been arranged at the Watergardens office, even though that was contrary to Dr Mutton’s recommendation. Ms Peters had met Mr Nunan, the new manager at that office, and had worked there for approximately two weeks four days a week, when she required time off because of a deterioration in the condition of her father, who was in a coma following a motor car accident. Ms Peters and her family had to decide whether to turn off her father’s life support system. Mr Nunan gave Ms Peters two further weeks of leave. He agreed to her using accrued long service leave to cover that period. During that leave Ms Peters’ father died.
90. Ms Peters was due to return to work on 5 March 2001. In her statement (T3), she wrote that the night before she suffered severe anxiety and stress at the thought of returning. She saw a doctor and was certified unfit for work for a further two weeks. She contacted Mr Nunan to tell him so, but he said she would not be paid for those two weeks. Ms Peters explained that this would place her in financial difficulty and just make things more difficult for her. She asked for approval to access some of her remaining three months of long service leave, but this was refused by Mr Nunan.
91. In his statement, Mr Nunan said that he did so because “in normal circumstances I would not be approving LSL at a time when the workload was gearing up for the implementation of a major initiative” (T5 p42). He added that he thought personal leave was the appropriate leave to take when a person is ill, even though he knew that Ms Peters had “long since expired her personal leave credits”. Mr Nunan in his statement did not deal with the fact that Ms Peters’ circumstances at the time were not “normal”. She was being treated for depression and was certified unfit for work, she had had two family members die in the last two months, and, as she told Mr Nunan, she was suffering financial difficulty due to the fact that her personal leave credits had “long since expired”.
92. As might have been expected Ms Peters was distressed about that response from Mr Nunan. She sought support from Ms Hebb but Ms Hebb supported Mr Nunan’s decision. It was that response which led Ms Peters to point out to Ms Hebb that she was being unfairly treated. In her statement, she wrote that she had stated to Ms Hebb that she had “always been so obliging and I had used all my sick leave when really the problem was work related, also that I did not receive the return to work that was suggested by the government doctor and rightly I could claim compensation but did not as I did not want my situation to be any more difficult at work than it already was” (T3). Ms Hebb’s response was to suggest Ms Peters lodge a compensation claim and she sent her the necessary forms.
93. Although a further approach to the union did ultimately lead to Mr Nunan changing his decision, the incident changed Ms Peters’ perception of Centrelink. Previously her concern had been primarily about her treatment at the Watergardens office and her relationship with Ms Ward. It was agreed by all witnesses that she had worked well when on the temporary transfer to National Administration under the management of Ms Carroll. Around this time Ms Peters wrote:
Due to all the additional complications I am now in a situation where I never want to return to work within Centrelink. An organisation which I once believed in, had let me down far too many times over the past two years. I had been working there for twelve years and I felt justified in taking off the time when I needed it. I don’t believe I have been treated fairly and I also don’t believe that my own leave should have been utilised for my entire absence.
94. We find that this was a very upsetting episode for Ms Peters.
FINDINGS AS TO WORKPLACE ISSUES RAISED BY MS PETERS
95. We find that the incidents discussed in the preceding paragraphs played a part in making Ms Peters feel anxious and upset about the atmosphere in the Watergardens office, and about her relationship with Ms Ward.
96. We find that the incident of the joke played a significant role. Although Ms Peters did not agree with Mr Lenczner’s suggestion that it was an inappropriate joke, we find that it was inappropriate. However, we also find that Ms Ward’s response took it more seriously than was warranted and that Ms Peters’ felt “hurt” and that she was being treated as if she were “a child molester”. Her concern about that issue is reflected in Ms Frankcom’s notes.
97. From about mid-2000, the position became much more complicated because of the breakdown of the marriage which we find was a very significant stressor, and then because of the deaths of Ms Peters’ brother and father in January and February 2001.
98. We accept Ms Peters’ evidence that, even before she returned from her honeymoon in April 2000, she had decided that she wanted to transfer away from the Watergardens office, because she no longer wanted to work under Ms Ward’s management. We find that her decision at that stage was not related to problems in her relationship with her future husband, but rather to a feeling that the work environment in which she found herself was damaging to her.
99. The final work place stressor arose much later when Ms Peters was back at Watergardens office when Mr Nunan was manager. We find it very hard to understand why he and Ms Hebb did not see it as fair and reasonable to allow Ms Peters to access her accrued long service leave to give her some income during the further two weeks for which she was certified unfit for work. They were aware of the fact that Dr Mutton had written that she had a number of issues at work and that she had also recently had a breakdown of a marriage and two deaths in her family. On the medical evidence, she was not fit to return to work and additional financial strain would not help the recovery process. We find that the refusal of access to accrued long service leave at that stage was an important stressor.
100. In order to unravel the effect on Ms Peters’ psychological health of all those matters, we have prepared a chronology setting out many of the major events and the times at which we find they occurred:
CHRONOLOGY
April 1989 :
Starts work with DSS
28 September 1998:
Ms Ward returns as Manager St Albans
Late 1998
Discussion about performance statistics
12 December 1998:
Visit to doctor with symptoms later diagnosed as irritable bowel syndrome
24 February 1999:
Dr Taggart gastroenterologist suggests Ms Peters “may have significant depression”
14 May 1999:
Anti depressants first prescribed
June 1999:
Agrees to become Retirements Teams Leader
July 1999:
Office moves to Watergardens, becomes Retirements Team Leader
January 2000:
Joke incident
January 2000:
Preliminary performance assessment interview
Jan/Feb 2000
Discussion with Ms Hebb
2 February 2000:
Consultation with Ms Frankcom, psychologist
21 February 2000
Start of wedding leave
12 March 2000:
Wedding
17 April 2000:
Return to work from wedding leave
1 May 2000:
Start of temporary transfer to National Administration
June 2000:
Marriage problems
30 June–3 July 2000
First period of sick leave
June 2000:
Starts seeing Mr Lavery, psychologist
14 July 2000:
Husband moves out – marriage is over
Early Aug 2000:
Leave to sort out affairs after break-up of marriage, told necessary to return to Watergardens in order to take sick leave
15 November 2000:
Sees Dr Mutton of Australian Health Services, he confirms unfit for work
19 March 2001:
Change to Dr Cheng as GP as Dr Vasudevan is close to husband’s family
April 2001:
Referral to Dr Gaynor, psychiatrist
3 May 2001:
Sees Ms Denny, psychologist with Australian Health Services. She says currently unfit for work.
October 2001:
Ms Ward transfers away from Watergardens
Mr Nunan becomes manager Watergardens
31 December 2001:
Father in a coma after car accident
6 January 2002:
Brother dies suddenly
5 February 2002:
Starts back at Watergardens 4 days a week
16 February 2002:
Starts leave due to father’s ill-health
19 February 2002:
Father dies
5 March 2002
Certified unfit for work;
Refusal of access to long service leave
ANALYSIS OF MEDICAL EVIDENCE
101. Ms Peters was seen by a number of general practitioners, psychologists and psychiatrists from 1998 onwards. Those who saw her are:
Dr Vasudevan, her general practitioner from 14 December 1998 to 27 November 2000;
Ms Frankcom, a psychologist who saw Ms Peters on referral from Ms Hebb on 2 February 2000;
Mr Lavery, a treating psychologist from June 2000 to the end of 2000;
Dr Mutton, of Health Services Australia, who saw Ms Peters on 15 November 2000;
Dr Cheng, treating general practitioner since 19 March 2001;
Dr Gaynor, a treating psychiatrist, from April 2001 until January 2002;
Ms Denny, a psychologist with Health Services Australia who saw Ms Peters on 3 May 2001;
Dr Hickingbotham, Ms Peters’ treating psychiatrist, from 15 January 2002; and
Dr Nigel Strauss, a psychiatrist, who examined Ms Peters on behalf of the respondent on 8 August 2002.
102. Ms Peters said that she attended Dr Vasudevan on the recommendation of her future husband, because he and his family had been attending him for many years. Dr Vasudevan’s clinical notes show that she attended that clinic from 12 December 1998 until 27 November 2000 (R3). On the first occasion Ms Peters saw another doctor with complaints of feeling bloated, abdominal distension and weight gain. She first saw Dr Vasudevan two days later, on 14 December 1998, about the same complaints.
103. After three more consultations in respect of those problems, Dr Vasudevan referred Ms Peters to a gastroenterologist, Dr Taggart, on 4 February 1999 to investigate whether there was an organic reason for Ms Peters’ weight gain. Dr Taggart wrote to Dr Vasudevan on 24 February 1999. He diagnosed Ms Peters as having irritable bowel syndrome. Dr Vasudevan said that Dr Taggart wrote that he felt that Ms Peters’ symptoms were of a functional nature and that she may have significant depression (trans p205). He suggested a colonoscopy to exclude “anything dangerous”. Dr Vasudevan said that Dr Taggart had advised him by follow-up letter that the colonoscopy results were “basically normal” (trans p205).
104. Dr Vasudevan does not seem to have discussed the issue of depression with Ms Peters following Dr Taggart’s letter and diagnosis until 14 May 1999, when he noted (R3):
Agrees now that she is increasingly depressed and obsession with weight was 2° [secondary] to depression
Good insight Apathy/lack of concentration
FH 1Bro schizophrenic
Father alcoholic
Mo died 12 months ago feels has deteriorated since
…….
105. Dr Vasudevan said that his note indicated that in his opinion the weight symptoms were secondary to a depressive state, and the symptoms of apathy and lack of concentration were related to the depressive state (trans p206). It is unfortunate that, although he noted that Ms Peters had “good insight”, he did not note what she saw as the reasons for her depressive state. Dr Vasudevan prescribed Aropax, an anti-depressant, for Ms Peters on 14 May 1999.
106. Ms Peters attended Dr Vasudevan again on 21 and 25 May 1999. On 25 May, he noted:
Still very apathetic and lethargic
Unable to cope with work.
Not suicidal. Nausea. Anxiety.
Does P/T studies and work.Issues discussed. (R3)
He continued her treatment with Aropax.
107. Ms Peters next attended the clinic on 23 July 1999. At her request, her medication was changed to Prozac. Dr Vasudevan said there is nothing unusual in a patient suggesting that their medication be changed, and that quite often the medication they suggest proves more effective.
108. Ms Peters continued to see Dr Vasudevan through July and August. On 1 October 1999, Dr Vasudevan again changed her medication to Lovan and increased the dose from 20mg to 30mg (trans p209). The dose was again increased in November to 40mg per day (trans p209). Dr Vasudevan described this as a moderate dose of Lovan (trans p209).
109. Ms Peters next saw Dr Vasudevan on 12 May 2000. Dr Vasudevan said that she reported that she felt much better on the double dosage of Lovan, that her mental state appeared stable, and that she was coping at work (trans p209). Although it was not mentioned to Dr Vasudevan, at that time Ms Peters was not working at Watergardens. She was working at National Administration under Ms Carroll.
Subsequent stressors complicated Ms Peters’s situation and appear to have prolonged the period of recovery and rehabilitation. However the lack of recognition of her difficulties with Centrelink have significantly added to Ms Peters’s sense of isolation, demoralization and lack of confidence which have all impacted on her return to work capability.
140. Dr Hickingbotham said that he saw work as one of several factors which played a part in Ms Peters’ condition, but he added that, if the workplace difficulties had not occurred, she may have dealt with the life events that developed more effectively. He said the workplace factors had a continuing role in Ms Peters’ condition.
141. As to when Ms Peters’ would be fit to return to work, Dr Hickingbotham said that she would need a graduated return to work, perhaps retraining, better confidence and rebuilding of self-esteem. He said he had been prescribing an anti-depressant throughout the period he had been treating Ms Peters.
142. Mr Lenczner suggested to Dr Hickingbotham that the fact that Ms Peters continued to work, despite any stress, depression or anxiety she might have had due to employment, until her marriage break-up, suggested that the impact work had on Ms Peters’ depressive condition was minimal. Dr Hickingbotham rejected that analysis. He said, rather, that the fact that Ms Peters had gone on working in spite of work-related stresses, maximised the importance of work to her. It was such an important component of her life that, even in difficult circumstances, and even while suffering from depression, which was being treated, she continued to work until she felt overwhelmed and could not continue (trans p295-6). He explained that Ms Peters became overwhelmed when the work factors combined with the other events in her life such as her marriage break-up.
143. Dr Hickingbotham agreed with Mr Lenczner that Ms Frankcom’s clinical notes did not show that Ms Peters was suffering a depressive condition as a result of the stress and anxiety about work issues recorded there. He said it was a record of an interview focusing on management of industrial issues, rather than a clinical assessment.
144. Dr Hickingbotham explained that the difference between normal anxiety, which people frequently experience, and a clinical anxiety condition is the depth of the anxiety and its persistence. He said symptoms of anxiety may be physical, such as palpitations or upset stomach, or psychological, such as a loss of confidence, feeling overwhelmed or loss of concentration.
145. Dr Hickingbotham said that a psychiatrist has to develop the skills to discern the degree and severity of depression which may be somewhat masked by a person’s personality, their desire to function, or in many other ways. He said that general practitioners generally manage depression very well, but if the depression is more significant or long lasting or resistant to treatment, people are often referred to psychiatrists. He said that, in the absence of a psychiatric opinion, he would accept the diagnosis of Dr Vasudevan, a general practitioner, that Ms Peters was suffering depression in May 1999, when he prescribed anti-depressant medication.
146. Mr Lenczner asked Dr Hickingbotham to comment on the effect of Ms Peters’ brother’s death in January 2001 and her father’s death just two weeks after the start of Ms Peters’ graduated return to work at the Watergardens office. She was at that time working four days a week on restricted duties. Dr Hickingbotham responded that the acute event “only has meaning in the context in which it occurs and clearly those acute events were very significant tragic events which had a major impact on her life, but occurred also on the background of the [work-related] things that we have been discussing” (trans p303).
147. Mr Lenczner put to Dr Hickingbotham that Dr Strauss was going to say that work conflict such as Ms Peters reported to Ms Frankcom, in someone “fragile”, who had coped with the work environment for a long time, was not likely to be productive of anything other than maybe a temporary upset. Dr Hickingbotham replied:
Well, I mean I would disagree with him on that. I would take in fact the reverse view that with someone of this background, work conflict is going to have a significant impact, much greater than you might have otherwise expected and to not recognise that I think is a mistake (trans p305).
148. When Mr Lenczner put to Dr Hickingbotham that it was necessary for him to consider precisely what the stresses at work were, he responded:
Well, I mean clearly something went wrong. I guess that would be my perspective. Here is someone from a difficult background who is functioning well, getting promotions, enjoying her work, you know, I have written in my notes on a number of occasions her expressions of how much she loved work, it was her life, it gave her meaning, all sorts of things like that, and then something goes wrong. In her mind that is conflict at work. That makes sense to me, it fits the story, it fits the history as I understand it (trans p306).
149. Dr Hickingbotham said that although he had written in his report that when he first saw Ms Peters, “her mental state examination did not reveal marked depression”, his clinical assessment was that she was far from functioning at the level she had in the past. He pointed out that the very fact that she was continuing to be unable to work was evidence of that. He said it was his clinical assessment that it was Ms Peters’ desire to return to the work force and retain her sense of security and well-being in that process, and that was why she had come seeking treatment. He said she still had a lack of confidence and lack of self-esteem, which were residual aspects of her depression. Even though it was no longer of a serious nature, it still had an impact on her life and her ability to work.
150. Dr Hickingbotham said that in his opinion, based on one and a half years of treating Ms Peters’, and on his skills and experience, the consequences of the depression and its impact on Ms Peters’ life were still continuing. He said he would not encourage Ms Peters to return to work at Centrelink. He explained:
From my perspective, I wouldn't be encouraging to return to Centrelink because I think that was the source - the origin of many of her difficulties and certainly returning in a similar - into a similar environment doing similar work I think would be quite problematic. If she was able to return in a different capacity, perhaps doing a different type of work, maybe that could work (trans p313).
151. In answer to a question from the Tribunal, Dr Hickingbotham said that some people can be clinically depressed and still appear to function very well. He said that, in clinical practice, there are many examples of people functioning, sometimes at very high and senior positions with grave difficulties because of depression, who hide it from their colleagues very effectively. He said it is common for people with depression to take medication and still work in their normal jobs.
152. Dr Strauss saw Ms Peters on 8 August 2002 and provided a report (R1). He wrote (R1, p9):
There may have been some friction at work between Ms Peters and this manager but I do not believe that this has caused her psychiatric illness and the history of her work situation, the time that she took off work, and the grounds for taking time off at work at that time, suggest that she took time off for personal issues and problems. Unfortunately Ms Peters believes that it has been employment that has been the major problem in her life but I do not agree with this and I believe that it has been personal issues that have affected her in recent years.
She tried valiantly to cope with her life as an independent person but it was the breakdown of her marriage and probably the death of her parents and brother that caused her psychological decompensation. It also brought back memories of her childhood abuse and she had to deal with these long standing issues with psychological assistance.
In other words in my opinion employment has not been a contributing factor to her psychiatric problems and I do not believe that there is adequate evidence to suggest that in fact employment was a contributor to her psychiatric difficulties.
153. Dr Strauss in the report agreed that Ms Peters was not ready for work and needed ongoing psychiatric assistance and should continue taking anti-depressants for at least another twelve months.
154. When Dr Strauss gave evidence, Mr Lenczner told him that Dr Vasudevan had diagnosed a depressive state on 14 May 1999, although he had not recorded a history connecting that state with employment. Also he mentioned that there was a note by Dr Vasudevan, which was denied by Ms Peters, that her relationship with her future husband had had problems going back two years. He pointed out that Dr Vasudevan’s notes referred to Ms Peters feeling that she had deteriorated since her mother’s death in 1998. Mr Lenczner also told Dr Strauss about the matters Ms Peters raised with Ms Hebb in connection with her relationship with Ms Ward, and that those matters led to the referral to Ms Frankcom.
155. Dr Strauss said those matters did not cause him to alter his opinion in any way.
156. Dr Strauss admitted that it is difficult to decide retrospectively whether work issues played a part in Ms Peters’ depression. He conceded that, although Dr Vasudevan’s notes do not refer to the work issues contributing to the depression, “there is no real suggestion of any other factors” in the sense of a direct correlation in the notes between the depression and Ms Peters’ mother’s death or other factors (trans p465-6).
157. Dr Strauss explained that in his opinion, Ms Peters’ personal issues such as her family background and her mother’s death and her relationship with her husband, which ultimately turned out to be disastrous, affected her perception of issues at work and her ability to cope with change and negative comments at work. He said:
She was more sensitive and reacted adversely which made her feel that she was being victimised or treated improperly and may still make her feel that way, but were really a result of the personal issues and circumstances that she was going through at the time (trans p468).
158. Dr Strauss said, in answer to Mr Lenczner, that an incident such as that concerning the selection of the person who had to leave the Retirements Team could be upsetting, but he did not think it could cause a psychiatric condition. He was not asked whether it could be one factor contributing to a psychiatric condition. However, he did acknowledge in cross-examination that “different people can react differently to stressful circumstances” (trans p474).
159. Dr Strauss said that he believed it was the death of Ms Peter’s mother which brought about the evolution of overt symptoms and the beginning of a disability. He expressed that view, even though the only references to her mother in his 10-page report are as follows:
She grew up in Melbourne and as described she had a very unhappy childhood. Her mother died in the middle of 1998 from a stroke and she said she was closer to her mother than her father but her home life was poor. She said her mother had a hard life and had nine children (R1, p7).
…
I note that her mother died in 1998 but she told me at interview today that she had very limited contact with her family after she left home. Nevertheless I suspect that her mother’s death did distress her and may have been a factor causing her alleged depression in 1999 (R1, p9).
160. Dr Strauss said that he did not discuss his suspicions as to the role of her mother’s death with Ms Peters, because he concluded that she did not believe her mother’s death was particularly significant in the development of her depression (trans p490). He, however, was of the opinion that was due to her limited insight. When Mr Carey asked Dr Strauss to explain the significance of Ms Peters’ mother’s death, he replied:
Of course a mother's death is significant in anyone's life, but in this particular life I think there was so much of an association between parents and family and what she had put behind her that the death of mother who, I think as I remember it, was supportive through her difficult years, I might be wrong there but I think that is the case; would certainly precipitate the evolution [of] symptoms and I say that really from my own clinical background, that I have seen cases like this before, that a person can go off and live a life and try and ignore the living family members. But when they die the grief process and the actual physical loss brings about a reaction, the reaction that has been so long delayed (trans, p475).
161. However, Dr Strauss did agree that other events could also precipitate symptoms and that every case is different. He agreed that from Ms Peters’ history, it was clear that her success at work was extremely important for her self-esteem. He said it was possible that for that reason if something happened at work which made her feel unwanted, excluded or marginalised, that could have a more significant effect on her than it would ordinarily be expected to have.
162. Dr Strauss said he accepted there was conflict at work. But he seemed to totally discount Ms Peters’ account of the impact of that conflict on her psychological health, on the ground that she was looking at it retrospectively and was “over pre-occupied with work-related causative factors”. He did not seem to recognise that even if that were so, it is not a reason to find that the work factors made no contribution to her psychiatric illness.
163. Dr Strauss also said he accepted that Ms Peters did not get on with Ms Ward and did not want to work with her again, but he pointed out that after she left Watergardens and went to National Administration, Ms Peters was working quite well. He saw that as showing that there had been no serious deterioration in her mental health due to work conflict. He did not consider whether it might not have confirmed that at that time there was a problem for Ms Peters in working under Ms Ward’s management, but not under that of Ms Carroll.
164. At a later stage, Dr Strauss seemed to be prepared to agree that the work factors may have contributed to depression, even if not “significantly” (trans p484). He concluded, “I am not convinced that the events that have been listed have significantly contributed to the depression in her” (trans p485).
FINDINGS IN REGARD TO MEDICAL EVIDENCE
165. It was agreed by both Dr Hickingbotham and Dr Strauss that Ms Peters was still suffering symptoms of depression, that she continued to require medical treatment for that depression and that she was unfit for work. The substantial question before the Tribunal is therefore whether that depression is a “disease” as that term is defined in s 4 of the Act. If it is a “disease”, it is also an “injury” and compensable under s14 of the Act.
166. The Act in s4(1) contains the following relevant definitions of the terms “injury”, “disease” and “ailment”:
injury means:
(a) a disease suffered by an employee; or
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
167. The concept of a contribution in a “material degree” as referred to in the definition of “disease” in s 4(1) of the Act has been discussed in a number of cases. Even though the decisions of Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43 and Treloar v Australian Telecommunications Commission (1990) 12 AAR 535 arose under the earlier Commonwealth compensation legislation, the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), the comments of Davies J in Re Welsford and the Full Court in Treloar have been recognised as applicable to the test in the Act.
168. In Re Welsford, 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.
169. In Treloar, the Full Court said at 542,
The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
170. Ryan J in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 held that, although Treloar considered the 1971 Act in which the word “material” did not appear, it contains a valuable exposition of the meaning of “material”.
171. In Treloar, the Full Court also considered the meaning of the concept of employment contributing to a disease. The Court said, at 542:
Consistently with what was said by Windeyer J [in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, at 641], “contribution” does not require that the contributing factor be a causa sine qua non; the “but for” test is not appropriate nor is the causa causans or “real effective cause” or “proximate cause” formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not “contribute”.
172. Thus the issue before the Tribunal is whether Ms Peters’ mental disorder, which is diagnosed as depression, and which has symptoms of anxiety, was “contributed to in a material degree by [her] employment”.
173. We find that there was a contribution in a material degree by Ms Peters’ employment. In making that finding we have accepted Ms Peters’ evidence as to a number of events which occurred in the course of her employment after Ms Ward resumed the position of manager of the St Albans Centrelink office in late 1998. We have found that there were features of Ms Ward’s management style which caused Ms Peters to feel confused and anxious, and as though her work was no longer appreciated as it had been. We find there were difficulties in Ms Peters’ relationship with Ms Ward after September 1998, although she mainly succeeded in hiding the effect the events were having on her. For that reason Ms Ward was not aware of the problems.
174. We find that the events Ms Peters described as happening at work were events she found upsetting, stressful, confusing and productive of anxiety. We found Ms Peters to be an honest witness with a generally good recollection of events at work which affected her, going back to late 1998.
175. Further, in spite of believing that Ms Ward no longer had the confidence in her that she had formerly had, Ms Peters felt obliged, because of her staff support role, to continue raising staff concerns with Ms Ward, even though Ms Ward’s response was defensive and gave the impression that she did not like Ms Peters putting forward issues on behalf of staff, because she expected solidarity between senior staff.
176. We find that those matters contributed to a deterioration in the relationship between Ms Peters and Ms Ward. The joke incident, where we find Ms Ward overreacted to the issue, added to Ms Peters’ feeling of hurt. The matters that followed it, relating to the telephone calls and the delay in the implementation of the pay increment added to the poor relationship between Ms Ward and Ms Peters.
177. We find that Ms Ward did not intend to upset Ms Peters. While her actions could have been more sensitive to Ms Peters’ needs at times, for instance in the way she asked her about her performance statistics and about Mr Ward’s letter, and in regard to the offer of the retirement team leader position and the choice of the member who was to leave the team, she did not intend to upset or embarrass Ms Peters, or to provoke conflict. She probably did not realise the extent to which she was doing so. Some of the problems were simply a result of Ms Ward’s management style which was focused on a close leadership team. Ms Peters, as a specialist FIS officer, was part of the leadership team but the way the office was structured meant that Ms Ward had a closer relationship with the team leaders than with the specialist officers. This was accentuated in Ms Peters’ case by the fact that she was often away from the office, either working at a different office, giving seminars, or on study leave. Thus she could not attend all the leadership meetings. Sometimes proposals or decisions that affected her were made in her absence and she learnt about them as a result of office gossip or without proper warning. Those matters added to her feeling that she was not part of the inner leadership team.
178. We find that Ms Ward was a busy and efficient manager, working to improve the performance of a poorly performing office. Ms Peters was one of a number of senior staff in the office and her area of work was one with which Ms Ward was not very familiar. Further, many aspects of a FIS officer’s responsibilities were laid down by National Administration rather than within regional offices. That meant that Ms Ward was closer to other senior staff. We find that at times Ms Ward’s manner was abrupt. She did not realise the effect these matters had on Ms Peters. There is no evidence that Ms Ward was aware of the details of Ms Peters’ background, or had any reason to regard her as psychologically fragile or vulnerable.
179. We accept Dr Hickingbotham’s evidence and find that to Ms Peters, because of her very unfortunate family background, and because of the way in which her employment had “transformed” her situation, her difficulties with Ms Ward were very significant. Her work was a very important focus in her life, as it was the way she had overcome her difficult family background. We find that when her work environment changed from being nurturing to being difficult, that “was of great psychological significance to her”. When conflicts developed, even though to another person they may have been fairly minor, we find that they were very important to Ms Peters and that they caused her to suffer depressive symptoms or “triggered” her depression, as Ms Denny wrote.
180. Ms Hebb described Ms Peters as a “calm person” who liked to try to manage her own difficulties. We find that was a good description of Ms Peters. She gave the impression of being calm and self-contained in the workplace as long as she could. We find that Dr Hickingbotham explained that process well. He said that Ms Peters went on working, even while being treated for depression, because of the importance of work to her.
181. We find on the balance of probabilities that there were factors about her employment which were worrying Ms Peters, even in late December 1998, when she saw Dr Vasudevan about symptoms which led Dr Taggart to diagnose irritable bowel syndrome and to alert Dr Vasudevan to the fact that he felt Ms Peters “may have significant depression”. We find that by that time Ms Peters was already upset by Ms Ward’s management style, and in particular by the discussion about performance statistics and the change in Ms Ward’s attitude to her from when she had given Ms Peters the “glowing” reference.
182. Dr Vasudevan did not explore with Ms Peters the factors which may have been causing her to be depressed. He did not ask her to explain her reference to a deterioration since her mother’s death a year earlier. Nor did he ask Ms Peters what she meant by saying on 25 May 1999 that she was “unable to cope with work”.
183. We find that during 1999 Ms Peters had raised with Ms Hebb some matters about her work environment which were of concern to her, but she had done it only informally and without telling Ms Hebb that she was being treated for depression or that those matters were contributing to her depression. We find that was because Ms Peters was still hoping the situation would not develop further, and she did not want people at work to know that she was depressed.
184. During 1999 Dr Vasudevan twice increased the dose of anti-depressants he was prescribing for Ms Peters. We find that she continued to be depressed, but with medication she continued to work and managed to hide her depression from her colleagues.
185. By the time Ms Peters saw Ms Frankcom in February 2000, three months before her marriage break-up, we find there is clear evidence in Ms Frankcom’s notes and in Ms Hebb’s evidence that Ms Peters was feeling under pressure and hurt because of events at work. Ms Frankcom counselled her about those matters. She did not diagnose depression. That was not her role, but we find that the evidence of Dr Vasudevan establishes that Ms Peters was depressed at that time.
186. We find that it was only with the additional stress of her marriage break-up that Ms Peters’ depression became so significant that she developed incapacity for work and required time off work. However, we find that the employment factors already discussed continued to contribute to the depression throughout that period. Unfortunately, new employment issues arose. Because Ms Peters’ position at National Administration was only temporary, she would have been obliged to return to Watergardens after her sick leave. Because of the problems she had experienced at Watergardens, she could not do so. She remained incapacitated for work when she may have been able to return to work, if a position had still been open for her at the National Administration office.
187. It was in that context that Ms Hebb was again consulted by Ms Peters to see whether Ms Peters’ placement to the National Administration office could be extended. Ms Hebb said that she recalled that, by that stage, Ms Peters’ marriage had broken up and she was quite distraught. Ms Hebb was aware that Ms Peters felt more comfortable with Ms Carroll as manager, than with Ms Ward.
188. There is no suggestion in Ms Hebb’s evidence that Ms Peters chose to go to National Administration because her marriage was already in difficulty as soon as she came back from her honeymoon. Nor was that Ms Peters’ evidence. She was quite clear that she decided to seek, and quickly obtained, a transfer when she came back from the honeymoon, because she did not want to work under Ms Ward again.
189. We find that during the period from 30 June 2000 to 5 February 2001, when Ms Peters returned to work, her continuing depression was still contributed to in a material degree by employment-related issues, although other issues, such as the breakdown of her marriage, and from 31 December 2000 onwards, the car accident involving her father, and her brother’s death, were more significant.
190. We accept Dr Hickingbotham’s explanation of the continuing role of the employment factors in her depression, even though other, more significant factors were also contributing. We find that if the work difficulties had not occurred, and if she had not already been depressed, Ms Peters may have been able to deal with the life events that developed more effectively.
191. We find that during the two weeks of the graduated return-to-work program, Ms Peters continued to be depressed and her employment continued to contributed to the depression. We find that when Ms Peters took a further two weeks of leave, primarily because of the deterioration in her father’s health, which ultimately led to his death, her employment problems were still making a material contribution to her depression.
192. We find that when Ms Peters did not feel able to return to Watergardens on 5 March 2001, and she was certified unfit for work, the contribution to her depression made by employment factors increased. That was because Mr Nunan refused to allow her to access long service leave for that extended absence, and Ms Hebb refused to assist her in attempting to have Mr Nunan’s decision changed. We find that those were additional employment factors which contributed to Ms Ward’s depression. She believed that she deserved to be better treated than that, bearing in mind her earlier excellent work record.
193. We have preferred Dr Hickingbotham’s opinions to those of Dr Strauss, for a number of reasons. First, he has treated Ms Peters for approximately one and a half years, and obviously has more in-depth knowledge as to the nature and causes of her depression.
194. Secondly, we felt that Dr Strauss’ opinion, as expressed in his report and in his evidence, was both superficial and selective. He gave no reason for disregarding Ms Peters statements to him that her depression was in part due to her work, other than that they were self-serving. While that may be a reason for looking closely at the statements, it is not a reason for disregarding them.
195. Another matter which troubled us was the emphasis Dr Strauss gave in his evidence to the effect of the death of Ms Peters’ mother. In his report, he had written, “I suspect that her mother’s death may have been a factor causing her alleged depression in 1999” [emphasis added]. When he gave evidence, Dr Strauss strengthened his view on that issue. He said, “I believe the turning point was the death of her mother which brought about the evolution of overt symptoms and the beginning of a disability” (trans p474).
196. When Mr Carey asked him the basis for that belief, Dr Strauss had to concede that he had not asked Ms Peters about it directly. He said he did not do so, because he had concluded that she did not believe her mother’s death was particularly significant in the development of her depression.
197. We find that rather than exploring the issue to obtain information as to whether or not his suspicion was correct, Dr Strauss avoided exploring it with Ms Peters because he suspected she would not have agreed with him. In the absence of any further information, he then turned his former suspicion into a belief. We find that Dr Strauss did not have a proper foundation for his opinion on the issue.
198. Further, Dr Strauss’ report also indicates that there were aspects of the work history as to which he had misunderstood Ms Peters’ concerns. First, he seems to have misunderstood the issues about the team leaders’ position, writing that it was a “more senior position” and “too hard for her”, although the uncontested evidence is that it was a less senior position. Ms Peters’ concern was that it interfered with the proper performance of the duties of her more senior position. He also seems not to have understood that, in the selection of the member who had to leave the Retirements Team, Ms Ward had been told in advance that the team had decided to draw the name from a hat. It was only after that process had been adopted that she decided not to approve the choice. That is what gave rise to Ms Peters’ embarrassment and her feeling of having been sabotaged.
199. Another concern with Dr Strauss’ report was that he paid very little attention to the history he was given of Ms Peters taking anti-depressants since 1999, and of her seeing a psychologist in early 2000, due to how she felt about her relations with her manager, Ms Ward.
200. Another reason which led us to reject Dr Strauss’ opinion was that it was also in conflict with the opinions of the psychologist, Ms Denny, and the occupational health physician, Dr Mutton. They were not treating doctors. They both examined Ms Peters on behalf of Health Services Australia, at the request of Centrelink, at a time when she was still hoping to return to Centrelink, although not at the Watergardens office. Both Dr Mutton and Ms Denny acknowledged that there was a work contribution to the depression, both in its development and when they saw Ms Peters in November 2000 and May 2001.
201. We find that Ms Peters had a psychological vulnerability to any conflict at work. As explained by Dr Hickingbotham, because of her background and of the role work had played in the transformation of her situation, work had a much more significant impact on her than might otherwise have been expected. We find, as he said, that to not recognise that would be a mistake.
202. We also find that Ms Peters’ marriage break-up and the deaths of her brother and father were significant events which made major contributions to her depression. However, we find the depression, which was first diagnosed and treated in 1999, continues to be contributed to in a material degree by her employment, notwithstanding the addition of those further contributing factors. Thus, it is an “injury” within the meaning of that term in s 14 of the Act. We find that Ms Peters has been entitled to compensation in respect of her depression at all relevant times.
203. The decision under review will be set aside. In substitution, we will decide that Ms Peters suffers from an injury, namely depression, to which her employment with Centrelink contributed in a material degree and that she is entitled to compensation for medical treatment and for incapacity for work resulting from that depression commencing from 30 June 2000. Under s 67(8) of the Act, the Tribunal will order that Comcare pay Ms Peters’ costs of the proceedings.
I certify that the 203 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Dr Patricia Fricker, Member.
Signed: Josephine McKay
Associate
Dates of Hearing 5 June 2003, 19 - 21 August 2003 and 11-12 November 2003
Date of Decision 3 May 2004
Counsel for the Applicant Mr Carey
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr Lenczner
Solicitor for the Respondent Phillips Fox
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