Petersen and Comcare (Compensation) - [2023] AATA 456

Petersen and Comcare (Compensation) [2023] AATA 456 (22 March 2023)
Division:GENERAL DIVISION
File Number: 2018/5835
Re:Stephen Petersen
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:22 March 2023
Place:Melbourne

The Tribunal sets aside the reviewable decision and, in substitution, decides that:
(i) the applicant suffered incapacity and impairment as a result of an injury identified as a major depressive disorder with anxiety and panic disorder, to which employment with the Australian Communications and Media Authority contributed to a significant degree, which was the subject of a claim for compensation dated 29 May 2018, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
(ii) the respondent shall pay the applicant’s costs and disbursements in respect of this application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
...............................[sgd].........................................
R Cameron, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – Applicant claimed psychological injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - perception of overworking and/or bullying – whether aggravation/exacerbation of the applicant’s pre-existing psychological injury/condition significantly contributed to by employment – whether aggravation/exacerbation caused as a result of reasonable administrative action taken in a reasonable manner – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Fair Work Act 2009 (Cth)
REASONS FOR DECISION
R Cameron, Senior Member
INTRODUCTION

The applicant seeks a review of a decision made on 11 September 2018 denying liability for a psychological injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) (‘the reviewable decision’).
ISSUES BEFORE THE TRIBUNAL
The Tribunal considers the following issues arise for its consideration in this application:
(a)whether the applicant had a condition outside the boundaries of normal mental functioning and behaviour;
(b)whether that condition was contributed to, to a significant degree, by the applicant’s employment; and
(c)whether that condition resulted from reasonable administrative action taken in a reasonable manner in accordance with section 5A of the Act.
THE EVIDENCE
The hearing of this matter occupied 18 sitting days. The sitting days were fragmented. The evidence was only concluded in 18 sitting days and final submissions in writing took months to arrive. It is acknowledged that Counsel for one of the parties was ill for some of this period. However, the delay was unacceptable. Counsel did little to assist the Tribunal in the conduct of the matter.[1]
[1] The Tribunal refers to the provisions of section 33(1AB) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:
‘A party to a proceeding before the Tribunal and any person representing such a party, must use his or her best endeavours to assist the Tribunal fulfil the objective in section 2A.’
Section 2A provides:
‘In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism or review that:
(a)is accessible; and
(b)it is fair, just, economical, informal and quick; and
(c)it is proportionate to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 456
Decision Date: 22 March 2023

CaseChat Overview and Summary

This matter concerned an application by the applicant, an employee of the Australian Communications and Media Authority (ACMA), for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a psychological injury. The applicant alleged that his condition arose from perceptions of overworking and bullying by a colleague, Holly Buckle. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant suffered a psychological condition, whether his employment contributed to it to a significant degree, and whether the condition resulted from reasonable administrative action taken in a reasonable manner.

The Tribunal considered the evidence presented, including that of the applicant, medical professionals, and ACMA officers. A key factual finding was that while the applicant perceived Buckle's conduct as overbearing or bullying, the Tribunal was not satisfied that her actions constituted bullying in the legal sense, as there were no repeated instances of unreasonable behaviour. However, the Tribunal found that the applicant's perception of Buckle being against him, particularly in relation to the Mirabella Investigation and the Power Line Interference (PLI) Project, had adverse effects on him. The Tribunal preferred the applicant's evidence where it conflicted with other witnesses.

Ultimately, the Tribunal concluded that an email sent by Buckle to the applicant on 23 May 2018 did not constitute reasonable administrative action taken in a reasonable manner. Consequently, the Tribunal set aside the original decision and substituted a new decision. This new decision recognised that the applicant suffered incapacity and impairment as a result of a major depressive disorder with anxiety and panic disorder, to which his employment with ACMA contributed to a significant degree, entitling him to compensation under section 14 of the Act. The respondent was also ordered to pay the applicant's costs.

Orders

Orders of the court

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Background

Background to the litigation

As for the other witnesses where their evidence conflicts of that of the applicant, the Tribunal prefers the evidence of the applicant. RELEVANT FACTS At all times material to this application, the applicant was employed by ACMA. Initially, he worked as an APS6 Policy Officer. He was then promoted in subsequent years to an EL1 position working as an Assistant Manager. Sometime following being promoted to his Assistant Manager role, the applicant commenced working with Buckle, a person who will feature significantly in the factual matrix of this case. Buckle commenced working with ACMA in December 2009 as a Senior Investigator in the Telemarketing Investigations Section. In July 2012, she transferred to the Compliance Operations Section also in a Senior Investigator’s role. Between July 2013 and July 2018, when the manager of the section, Fosten, was away undertaking other work or on leave, Buckle worked as acting manager of the Compliance Operations Section.[5][5] This section changed its name to the Compliance and Field Operations Section in 2014. The applicant and Buckle commenced working together when the applicant joined the Compliance Operations Section. It appears that subsequently their relationship became fractured. This occurred comparatively early on. The relationship remained fractured at all times thereafter. The first occasion where some friction developed between them occurred in what was known as the Mirabella Investigation. The applicant gave evidence to the effect that he proceeded cautiously with the investigation and had instructions from Loney, who was employed as the Executive Manager of the Operations, Services and Technologies Branch, that he did not wish to unnecessarily antagonise a local business. He further said that Buckle sought to undermine his reputation with field inspectors by creating the impression that he was unnecessarily moving slowly whereas he says he was acting in accordance with Loney’s instructions. She denied these allegations. The Tribunal is satisfied that whether or not Buckle sought to undermine the applicant as he alleged, he nonetheless perceived this to be the case. More likely than not this perception held by the applicant was contributed to by the way the relationship or interaction between him and Buckle developed. Buckle presented in the witness box as a formidable individual whose approach to management could well be reasonably misconstrued as being overbearing or even bullying when that was not necessarily her intention nor the case. The Tribunal does not consider that Buckle’s actions with respect to this matter constituted bullying. There were not repeated actions on her part of unreasonable behaviour that is necessary to establish a case of workplace bullying. This will be touched on later in these reasons. The next matter that emerged occurred in approximately January 2016. The applicant says that Buckle directed him to shut down a project known as the Power Line Interference (‘PLI’) Project. Buckle denies that she gave such a direction. The Tribunal is satisfied that she did. Later in the year, the applicant’s Brisbane-based manager, Fosten, emailed the applicant suggesting the PLI Project had stalled and set up a meeting which occurred on 21 December 2016. In that meeting the applicant voiced his concerns about his treatment by Buckle on several occasions. The Tribunal is satisfied that these concerns were raised at that meeting. However, nothing came of them. Subsequently, Buckle sent an email to a group of recipients asserting that the PLI Project had been going nowhere. The applicant felt slighted for being blamed for not progressing a project that Buckle had specifically directed him to shut down. The Tribunal is quite satisfied that the events surrounding the PLI Project as he described them, and his interactions with Buckle had adverse effects upon him. Once again rightly or wrongly, he perceived that Buckle was against him. The Tribunal is not satisfied that Buckle’s behaviour with respect to these events constituted bullying. Once again, it should be observed that she probably conducted herself in a formidable and direct manner. It is, however, a quantum leap to say her conduct constituted bullying. More will be said about this later.

Evidence

Evidence Before The Court

The Tribunal considers the following issues arise for its consideration in this application:(a)whether the applicant had a condition outside the boundaries of normal mental functioning and behaviour;(b)whether that condition was contributed to, to a significant degree, by the applicant’s employment; and(c)whether that condition resulted from reasonable administrative action taken in a reasonable manner in accordance with section 5A of the Act.THE EVIDENCE The hearing of this matter occupied 18 sitting days. The sitting days were fragmented. The evidence was only concluded in 18 sitting days and final submissions in writing took months to arrive. It is acknowledged that Counsel for one of the parties was ill for some of this period. However, the delay was unacceptable. Counsel did little to assist the Tribunal in the conduct of the matter.[1][1] The Tribunal refers to the provisions of section 33(1AB) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:‘A party to a proceeding before the Tribunal and any person representing such a party, must use his or her best endeavours to assist the Tribunal fulfil the objective in section 2A.’Section 2A provides: ‘In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism or review that:(a)is accessible; and(b)it is fair, just, economical, informal and quick; and(c)it is proportionate to the importance and complexity of the matter; and(d)promotes public trust and confidence in the decision-making of the Tribunal.’Due to the length of time, the conduct and the fragmented nature of the hearing of this application the parties failed in this obligation. The following witnesses gave evidence during the hearing of the application of:(a)The applicant;(b)Dr Elspeth Harrison (‘Dr Harrison’), a general practitioner who has treated the applicant;(c)Bianca Reisman (‘Reisman’), a treating psychologist of the applicant;(d)Dr Tracy Shearer, a general practitioner who has treated the applicant;(e)Dr Leon Turnbull (‘Dr Turnbull’), a consultant psychiatrist who had prepared a report on the applicant;(f)Biliana Ivanova, a psychologist who was treating the applicant at the time of the hearing in this matter;(g)Holly Buckle (‘Buckle’), an assistant manager with the Australian Communications and Media Authority (‘ACMA’);(h)Margaret Cannington (‘Cannington’), an officer of the ACMA;(i)Christopher Fosten (‘Fosten’), an officer of the ACMA during the period relevant to this application;(j)Mark Loney (‘Loney’), an officer of ACMA during the period relevant to this application;(k)Dr Gregory White (‘Dr White’), consultant psychiatrist; and(l)Shirley Hedditch (‘Hedditch’), the Human Resources Director at ACMA during the period relevant to this application. Additionally, there was an array of documentary evidence. This included a joint Tribunal book consisting of two volumes.Some observations on the witnesses The applicant gave evidence for 10 days. He was cross-examined for five days. His time in the witness box was far too long. He was clearly unwell and should not have been exposed to such a lengthy and unnecessary ordeal. The witness box was a difficult environment for him. Much of the questioning in evidence-in-chief and cross-examination was repetitive and not helpful. However, the applicant presented as a credible and reliable witness, who did his best in such a difficult environment. He made concessions when they were called for and did his best to recount events that were stressful and difficult for him to the best of his ability. He left the witness box with his credibility intact. The Tribunal prefers his evidence where it conflicts with other witnesses who gave their evidence.

Decision

Reasons for decision

Therefore, the Tribunal concludes that the email sent on 23 May 2018 by Buckle to the applicant was not reasonable administrative action taken in a reasonable manner.CONCLUSION AND ORDERS By reason of the foregoing matters, the following orders will be made:(a)The reviewable decision is set aside;(b)In substitution of that decision, the Tribunal decides:(i)The applicant suffered incapacity and impairment as a result of an injury identified as a major depressive disorder with anxiety and panic disorder, to which employment with ACMA contributed to a significant degree, which was the subject of a claim for compensation dated 29 May 2018, and which gives rise to entitlement to compensation pursuant to s 14 of the Act; and(ii)The respondent shall pay the applicant’s costs and disbursements in respect of this application pursuant to s 67 of the Act.

Ratio Decidendi

Legal Principle Established

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