Petersen and Comcare (Compensation)
[2023] AATA 456
•22 March 2023
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 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.
In its written closing submissions, the respondent made a concerted attack on the applicant’s credibility. It was alleged that there was an inconsistency in medical histories in respect of the allegations of ‘overwork’ and ‘bullying’.[2] Particular emphasis was placed upon the history that the applicant gave to Dr White. It was suggested that whilst giving Dr White the history, he stated he thought he could manage temporarily the increased workload, that this does not suggest overwork or overwork of any significance. The Tribunal does not agree with this submission and finds that the applicant did his best for some time in trying circumstances until the events unfolded of 23 May 2018 which were the trigger for the condition from which he now suffers. More will be said about that later. It was also submitted by the respondent that the applicant was not averse to seeking treatment if he thought it was appropriate for his health. The fact he did not do so gives rise to the inference that he was not bullied or overworked so as to cause significant distress. Once again, the Tribunal cannot accept this contention as it was the events of 23 May 2018 that caused the applicant’s illness. He promptly sought treatment on that day from his general practitioner.
[2] Paragraphs 10-12, 40-44 and 75-76 of the ‘Respondent’s Written Submissions’ dated 8 July 2022.
Finally, the Tribunal accepts the evidence of Dr White, who was a most impressive witness, that the applicant was a forthcoming and genuine historian. Dr White explained that by the end of an hour and a half, an experienced psychiatrist will usually form an opinion about whether anyone is ‘making things up’.[3] He did not consider that the applicant was doing so. The Tribunal agrees.
[3] Transcript page 996, lines 6-12.
It should also be observed, and allowance should be made for the fact that it is quite apparent that the applicant, at all times material to this application, when he was consulting doctors and other healthcare professionals was seriously ill. The Tribunal did not understand the respondent to seriously dispute otherwise. The applicant perceived he had been overworked and bullied. It is perfectly understandable that from time to time when he was consulting various doctors and healthcare professionals that he may have placed emphasis on some occasions more on one factor than another. That he did so does not, in the eyes of the Tribunal, diminish his credibility which, as noted earlier, has been found to be intact.
The principal witness for the respondent was Buckle. Overall, she gave her evidence in a definite and forthright manner in which there were no shades of grey. It is apparent that her view of and relationship with the applicant is at best strained and it did, to some extent, colour her evidence. On some occasions, her evidence was unsatisfactory. By way of example, there was a passage in cross-examination where it was put to her that in April 2018 the applicant was the busiest he had ever been during his time at ACMA. Her response was, amongst other things, to describe it as ‘laughable’ and ‘so ridiculous as to be funny’.[4] It was an inappropriate and insensitive response given the seriousness of the applicant’s illness. It was also an inappropriate response, given that she admitted that she could not recall everything that the applicant was doing during this time. For these reasons, the Tribunal prefers the evidence of the applicant.
[4] Transcript page 657, lines 17-32.
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.
The next series of events emerged in or about March 2018. The applicant’s immediate superior, Fosten, who was Manager of the Monitoring and Compliance Section, was assigned to Commonwealth games-related duties, including interference diagnosis and leave following that assignment. Buckle became the acting manager of the applicant as and from 19 March 2018.
The same time that Buckle became his acting manager on 19 March 2018, she commenced to keep notes in typewritten form of ‘some of the matters that arose involving [the applicant]’.[6] It was apparent to the Tribunal that Buckle commenced making these notes because she harboured significant concerns about the applicant’s work performance. There was clearly considerable tension between them by this time which continued until the applicant ceased work due to his condition. Between the dates of 19 March 2018 and 23 May 2018, the entries recorded in those notes largely relate to the topics of the hours that the applicant kept in the office, absences, leave and working from home. She described it as a ‘running sheet’. It does not appear that Buckle adopted this practice of keeping a running sheet with respect to any other ACMA employees. It is also apparent from an examination of the entries in those notes for that time period that Buckle was concerned about the applicant’s ‘attendance patterns’ in the office of ACMA.
[6] The notes are attached to Buckle’s statement of 2 August 2019 and marked with the letters ‘HB-1’.
Considerable time, in the view of the Tribunal, was occupied during the evidence with respect to an entry in Buckle’s notes for events that occurred on 11 April 2018. On that day, the applicant was delayed due to a track fault on his train. After his arrival at work at approximately 10:23am, Buckle and the applicant had a conversation. Buckle’s notes record that ‘Steve did not react well to this discussion and accused me of being a nitpicking bitch’. The applicant steadfastly denied that he used the word ‘bitch’. He readily agreed that he suggested she was ‘nitpicking’. Having had the opportunity to observe the applicant in the witness box for 10 days, the Tribunal accepts his denial. It is not the type of language that the applicant is likely to use, nor the way he would be likely to conduct himself. More likely than not it was a tense conversation between two people who did not get on very well, and Buckle was probably mistaken in her recollection when she subsequently typed her notes. However, the Tribunal considers that the conversation was conducted by Buckle in what was probably her customary direct and formidable way. It does not consider that this constituted bullying. It was more likely a further example of her direct management style.
Another entry recorded in those notes on 11 April 2018 was that the applicant was recorded as saying that he ‘[did] not have much work to do and that he [was] depressed’. The applicant denied saying to Buckle that he did not have much work to do. The Tribunal again accepts this evidence from the applicant as it has accepted his evidence that he was experiencing an increasing workload by this time. It also accepts his evidence on this topic by reason of some concessions that were made by Buckle in cross-examination where she acknowledged that it was possible that she was mistaken with respect to what she had recorded concerning the meeting with the applicant on 11 April 2018. She also conceded that she did not type her notes during the meeting but nonetheless did not think she was mistaken. However, she also conceded in that passage of cross-examination that by then she knew that the applicant was feeling depressed and down in that period.[7] This accords with the applicant’s evidence.
[7] Transcript pages 659-660.
The respondent also placed some emphasis on an entry in Buckle’s notes dated 12 April 2018. In that note, Buckle records that she had spoken to Hedditch, the Human Resources Manager at ACMA, who ‘had pulled [the applicant’s] access records and that she was ‘horrified’ by the patterns of attendance’. Much debate in the evidence given to the Tribunal concerned the hours that the applicant attended the ACMA office. Not all that need be recounted for these reasons. The applicant did not deny that from time to time his hours in the office varied. He did not deny that he at times attended later and left earlier so that he could get home. This was significant because he was commuting by way of a country rail service from his home in Woodend. Additionally, he gave evidence that he left early on several occasions because he had been advised by his doctors that he was prediabetic. As a result of this, his medical advice was to walk regularly in order to prevent this condition from developing into a fully blown case of diabetes, which it subsequently did. The applicant left early on occasions so that he could exercise in daylight hours. Often, he would make up the shortfall by working from home after hours.
The applicant also explained that some of the attendance records were bound to be incorrect due to the practice of ‘tailgating’. Tailgating is not a term with which the Tribunal is particularly familiar. It was described as being a practice whereby one member of staff would gain access to the ACMA offices by using their swipe card and the applicant (or other members of staff) would follow them into the office without the necessity of using his swipe card. If he subsequently on the same day used his swipe card to gain access to the ACMA office, it would record that time as the applicant’s first time of arrival, which was in fact not the case. Therefore, the access records would not be accurate as to the time of his arrival. He described this practice as quite widespread. The applicant’s evidence on this topic and the practice was corroborated by Fosten in cross-examination when he said that ‘tailgating was a relatively common practice’.[8] Fosten also gave evidence that ‘The swipe card system was an access system. It was not a timeclock facility for the purpose of defining when you started work’.[9] He also said, ‘So it’s not an accurate record of when somebody actually commences work’.[10] The Tribunal accepts the applicant’s evidence with respect to this practice and accepts that it occurred quite frequently.
[8] Transcript page 891, lines 25-27.
[9] Transcript page 891, lines 42-43.
[10] Transcript page 892, lines 9-10.
The Tribunal should also observe that it is puzzling indeed that if the HR Manager, let alone Buckle, was ‘horrified’ about the applicant’s patterns of attendance when she examined his access records, that she did not, and Buckle did not, immediately raise the issue with him. The Tribunal observed Hedditch in the witness box when she gave her evidence. She also presented as someone who was an experienced HR manager and more likely than not would have adopted a direct and formidable style and would have taken the matter up with the applicant if she was genuinely ‘horrified’ as recorded by Buckle in her notes. The fact that neither of them took the issue up with the applicant at all, after such a reaction as recorded by Buckle, must make one question whether indeed they were genuinely concerned about the applicant’s attendance patterns, or whether they did accept the arrangement with respect to his working hours in the office and also accepted that he was making a contribution by after-hours work from home when he was not in the office. One also has to question whether they accepted that the access records, because of the practice of tailgating, did not accurately record when the applicant actually commenced work, as noted by Fosten.
Towards the end of April 2018, a co-worker of the Applicant, one John Davey (‘Davey’) fell seriously ill and was hospitalised for some time. The applicant gave evidence that he was required to undertake Davey’s tasks as well as his own. He says that his stress levels had begun to elevate. Buckle denies these allegations also and contended in her witness statement that the applicant was only managing Davey’s workload with respect to limited functions. In cross-examination, when in the witness box, Buckle did not repeat this contention and admitted that at all relevant times the applicant was responsible for managing both Davey and another co-worker, De Silva.[11] This is a further example of why the Tribunal prefers the evidence of the applicant over Buckle. Regardless of the differing evidence between the applicant and Buckle on this topic, the Tribunal is completely satisfied that, whatever duties the applicant undertook after this time, his stress levels were elevated as a result. In Davey’s absence, it is more probable than not that the applicant’s workload increased. Whether he was or not, he genuinely perceived that he was overworked.
[11] Transcript page 658, lines 35-40.
Following on from this in about May 2018 De Silva, who as noted earlier was another co-worker who the applicant said particularly carried out technical tasks, suddenly travelled overseas to care for a parent who was ill. The applicant was informed of this fact by email from Mr De Silva on Sunday 20 May 2018 at 6:57pm.[12] De Silva’s tasks, the applicant stated, required a level of technical expertise that he did not have. Cannington described De Silva’s role as one of a ‘technical expert’. She described him as being responsible for managing complex complaints and enquiries of a technical nature, particularly related to cabling and compliance with radio communications equipment standards. Not having De Silva present and having to carry out his tasks proved particularly difficult for the applicant. Having to carry out the additional tasks of a more technical nature with which he was unfamiliar proved additionally stressful for him. The applicant perceived that he was overworked or was going to be overworked due to the absence of both Davey and De Silva.
[12] The email was attachment SP-8 to the applicant's witness statement of 20 June 2020.
The applicant gave evidence that the obligation to perform further duties proved very stressful to him. He stated he was feeling exhausted, stressed and in a very low mood. He further stated he had fleeting dark thoughts of trying to end it all, frequent panic attacks and felt fearful. He was also experiencing significant sleep difficulties. It was hard for the applicant to attend work. The Tribunal accepts his evidence as to these conditions and that they were exacerbated as a result of the absence of De Silva and the additional duties that the applicant had to perform as a result. This is not to mention the additional workload that he had to undertake as a result of the absence of Davey. The Tribunal accepts that both Davey and De Silva were valued employees who made a significant contribution to ACMA at all material times. In cross examination, the applicant stated that the absence of both of them were ‘two rapid fire blows’ and that it ‘really came down on me … just before I went to see the doctor’.[13] He further said, ‘I think that it felt like everything was coming down on me’.[14]
[13] Transcript page 285, lines 18 and 19.
[14] Transcript page 293, lines 19 and 20.
It was suggested in cross-examination that the applicant’s evidence concerning an increased workload particularly in the absence of De Silva was ‘just nonsense’. He denied that assertion. It was also contended by the respondent in submissions that the limited reference to overwork in the applicant’s statement attached to his claim form, which was in evidence before the Tribunal, does not corroborate this aspect of his claim. The Tribunal does not accept these contentions. It accepts the applicant’s evidence and considers that the absence of two employees in the circumstances that they occurred logically would lead to an increased workload for those who remained, including the applicant. In any event, the Tribunal accepts that the applicant by reason of the absence of both Davey and De Silva perceived that his workload was increasing. It accepts that this perception was genuinely reached by the applicant.
A further source of the applicant’s grievances arose from the deployment of another officer, Cannington. At some stage, Cannington was notionally moved into the role usually undertaken by Davey. Much debate took place in the course of the evidence of this case about what actually happened which need not be repeated for the purpose of these reasons. The Tribunal is satisfied, however, that Cannington, largely whilst assigned to Davey’s role, continued to predominantly work for Buckle. The applicant says he was prevailed upon to acquiesce in this arrangement apparently for the purpose of Cannington achieving a higher rate of pay. Buckle denies these allegations. She says that Cannington at that time undertook the majority of her work for another officer, Danielle Head (‘Head’). Cannington gave evidence that she did not work exclusively for Buckle and not for the applicant. She gave evidence that she worked in more of a ‘swing’ type capacity undertaking tasks based upon the priorities and needs of the section as a whole. Whatever occurred with Cannington’s arrangements at the time, in the absence of Davey and then De Silva, the Tribunal is satisfied it did cause the applicant significant additional stress to that which had been developing over some time. He genuinely believed that he was being overworked.
The respondent in submissions placed some emphasis on Cannington’s evidence concerning what she considered to be the applicant’s workload, particularly after Davey fell ill. She stated that she did not consider that the applicant was overworked during that time. However, in cross-examination she conceded that the applicant was the person in the very best position to know what his workload was at all times.[15] She also conceded she was not privy to the emails that the applicant was receiving and that she was not across all the documents and projects that the applicant was working on.[16] Additionally, she conceded that her comments about the applicant’s workload was a ‘[b]est guess’.[17] It was also acknowledged by her that the applicant worked through lunch.[18] The concessions as made by Cannington, which to some extent support the applicant’s evidence, are another reason why the Tribunal prefers the evidence given by the applicant concerning his workload and his perception of it.
[15] Transcript page 802, lines 3-6.
[16] Transcript page 803, lines 10-14.
[17] Transcript page 803, line 32.
[18] Transcript page 803, line 44.
Some considerable support for the applicant’s contention that he was being overworked came from Buckle herself. As has been noted earlier, she did concede in the witness box that the applicant was managing both Davey and De Silva, who were absent from the workplace for some considerable period of time. In her email to the applicant of 23 May 2018, she used the precise words, ‘[t]he team is already vastly understaffed’. In the same email, she also stated that Cannington and Head (two other members of the team) were ‘carrying heroic workloads in ([Davey] absence’. This observation is consistent with the evidence that was given by the applicant and is also what one might well expect if two valued members of staff were absent for a protracted time span. The Tribunal finds on the evidence before it that all staff members at that time were subject to significantly increased workloads. It once again highlights the inappropriateness of the comments made by Buckle in response to the applicant’s contention that he was the busiest at work he had ever been during his time with ACMA.
The applicant stated that by May 2018 he was not only working normal hours but performing additional hours of work at home and also while travelling to and from work on the train to his home in Woodend. By way of example, there was in evidence before the Tribunal an email together with an attached draft memo prepared by the applicant that was sent by him to Cannington on 17 May 2018 at 9:40pm. He stated that his anxiety and stress levels reached a greater height due to work pressure and the hours that he was working. It was in this context that things escalated. The Tribunal accepts this evidence from the applicant that he was working additional hours on the train and at home.
On the evening of 20 May 2018, the Internet connection to the applicant’s home stopped working. To correct this required the attendance of a Telstra technician. The next morning the Telstra technician arrived to undertake necessary repairs. They took longer than expected and required the applicant to be present at the home whilst such repairs were undertaken. At 9:59am, the applicant sent a text message to Buckle on her mobile phone informing her that he was delayed as a result of the Telstra technician and sought her assurances he would be all right working from home.[19] It should also be noted that Buckle in cross-examination did not dispute that the reason the applicant had not gone straight into work on that day was because he had a repairman who had been delayed, nor was there any challenge to the applicant’s evidence concerning this event.[20] He also stated that if she was uncomfortable with that, he could take recreational leave but would rather keep working because there was much to do.
[19] A copy of the text message is found at page 25 of the Tribunal book.
[20] Transcript page 652, lines 28-30.
At approximately 10.00am, the applicant telephoned Cannington. He advised her that he was calling from home as a tradesman had been delayed and he would not be in that day. He advised her that one of the tasks he had to complete that day was to collect a summons from the Commonwealth Director of Public Prosecutions (‘CDPP’) relating to an investigation he was undertaking with respect to a party known as ‘Axent Holdings’. He asked her to collect that summons on his behalf. Cannington agreed to collect the summons. There was much evidence canvassed with respect to this issue, which, in the view of the Tribunal, took much too long. However, Cannington then spoke to the acting Assistant Manager, Head, with respect to the applicant’s request concerning collection of the summons. She said she did so out of an abundance of caution. It is not necessary to descend into detail about the matter, suffice to say that Head eventually undertook the task of collecting the summons from the CDPP.
It should be observed that Buckle herself was absent from work that day due to illness. The applicant said he sent a text message to her because he believed she would more readily see it rather than an email. He also stated that he was reluctant to ring her on a day when she was taking sick leave.
Buckle due to her illness and the need to rest had switched her mobile phone onto flight mode and, therefore, was not checking her text messages. She did not see the text message from the applicant until approximately 4:59pm on that day when she switched her mobile phone off flight mode and saw the text message from the applicant.
Although she saw the text message late on that day, Buckle did not contact the applicant concerning its content. Her evidence was that she did not respond to the text message directly. She attended work the next day, as did the applicant. Although both were present at the workplace, Buckle did not speak to the applicant about the content of his text message or, for that matter, about his absence from work the day before. Given the content of Buckle’s subsequent email to the applicant on 23 May, about which more will be said later, which was strongly worded and raised multiple issues concerning his absence from work on 21 May 2018 and his work performance in general, the failure of Buckle to speak to the applicant the next day is surprising.
Following the applicant working from home on 21 May 2018, Buckle sent an email on 23 May 2018 at 7.44am.[21] The content of the email speaks for itself and was in evidence before the Tribunal. It stated that the applicant had worked from home when it had not been approved in advance, that it was completely unacceptable and that she was concerned with the applicant’s judgement. This was because, amongst other things, the applicant had work that needed to be done from the office on that day, the work had a strict and fast approaching statutory deadline and that the team was already vastly understaffed. Reference was also made to asking Cannington to attend the office of the CDPP when other staff were carrying heroic workloads in the absence of Davey. She also stated, ‘I hope that you will now work hard to restore my trust and that you can illustrate to the team that you are reliable and respectful of their work loads [sic]’.
[21] The email of 23 May 2018 from Buckle to the applicant is at page 24 of the Tribunal book, volume 1.
Buckle said that at the time she forwarded the email she considered and continues to consider that the applicant acted inappropriately staying home to work without permission, irrespective that he forwarded the text message to her seeking permission. She denies that the applicant was entitled to make the decision without seeking and obtaining permission. As she put it, she wanted to make it abundantly clear to the applicant that he could not work from home unless he had permission.[22] She agreed in her evidence-in-chief and cross-examination that she sought to escalate the matter by sending the email.[23] These views of Buckle are predicated on the mistaken belief that, in the case of ‘unexpected absences,’ the applicant was required to seek and obtain her permission to work from home. More will be said about this later in these reasons.
[22] Transcript page 626, lines 32-34.
[23] Transcript page 626, lines 28 and 34 and page 718, lines 14-15.
The mistaken belief that, in the case of unexpected absences, the applicant was required to seek and obtain permission to work from home was also reflected in the evidence of Loney. He gave evidence that an officer such as the applicant was required to obtain approval before working from home. In reaching this conclusion, he relied upon clause 3.1 an ACMA document entitled ‘Flexible working arrangements’.[24] An examination of clause 3.1 of that document reveals that it is concerned with ‘Flexible start and finish times’, not unexpected absences, as was the case, confronting the applicant on 21 May 2018.[25]
[24] Attachment ‘ML-4’ to the witness statement of Loney dated 21 August 2019. Paragraphs 11 and 12 of his statement are also referred to.
[25] It should be noted that at the hearing of the application it was not submitted, and no witness called by the respondent challenged the applicant's version of events on that day that he had an unexpected delay with a Telstra technician which meant he could not attend work.
Unexpected absences and ‘Notification of absences’ at ACMA are subject to a completely different document. The applicable document was ACMA ‘Leave: availability and access’, which was in evidence before the Tribunal.[26] The respondent’s witnesses, who were questioned on the topic, when pressed, acknowledged somewhat reluctantly in their evidence that it did apply. It is of concern to the Tribunal that the respondent, who is supposed to be a model litigant, could advance this aspect of its case in the way it did that was so demonstrably wrong.
[26] Tribunal Book, volume 2, page 3
Buckle in her witness statement also exhibited the ACMA document entitled ‘Flexible working arrangements’.[27]
[27] Attachment ‘HB-5’ to Buckle’s statement of 2 August 2019.
Fosten, in cross-examination, acknowledged the ACMA ‘Leave: availability and access’ instruction applied to the situation confronting the applicant on 21 May 2018. He was familiar with the instruction, acknowledged that it applies to unexpected absences and readily conceded that the applicant met its requirements.[28] He also acknowledged quite candidly that the text sent by the applicant to Buckle was asking and seeking her permission to work from home.[29] Additionally, he readily acknowledged, as is apparent on the face of the text, that if Buckle was uncomfortable with him working from home he could take recreational leave but would rather continue working from home because, as the text said, there was ‘heaps to do’.
[28] Transcript page 869 lines 26-37. Page 896 lines 18-19.
[29] Transcript page 869 lines 39-41.
It is also of concern to the Tribunal that Fosten did not refer to the ACMA ‘Leave: availability and access’ instruction in his witness statement or, for that matter, the ‘Section 71 Employer Statement’ which was attachment ‘CF-1’ to such statement.[30] He and the respondent knew the importance of the Section 71 Employer Statement.[31] It must have been evident to them that it was, as served, incorrect because it referred to the wrong instruction. No attempt was made to rectify or correct the document. No explanation for this oversight was offered to the Tribunal. In the Employer Statement, Fosten contended, incorrectly in the view of the Tribunal, that on 21 May 2018 the applicant required prior approval from Buckle before working from home. Similarly, Loney referred to the ACMA ‘Flexible working arrangements’ instruction. As noted above, this was not the case. It is apparent that, in his cross-examination, his evidence shifted from what was included in his witness statement of 30 August 2019 on this topic. The fact that there was such a glaring shift by reference to the correct instruction, which he admitted he was familiar with in his evidence, is of concern to the Tribunal. Once again, it is also an unsatisfactory approach adopted by a party who is a model litigant.
[30] Fosten statement of 30 August 2019.
[31] It was included in the T documents as the respondent was required to do as document T9.
Additional reference was made to the applicant being late on both 4 and 11 April 2018. The applicant gave evidence that, on these two days, his late attendance was due to factors beyond his control. They were clearly unexpected absences within the meaning of the ACMA ‘Leave: availability and access’ instruction. On the first occasion, he had arranged to have his car serviced by a car dealer in Essendon under warranty. A shuttle service between the dealership and the train station at Essendon proved to be quite unreliable. The delay was approximately an hour and a half. The delay on 11 April was due to a track fault on the VLine service that he travelled on each day from Woodend. On each occasion, he notified Buckle of his unexpected absence by text.
The applicant stated that he was concerned that Buckle stated in the email of 23 May 2018 that she had lost trust in him without, as he put it, discussing any concerns she may have had with him first. He also felt slighted because in his view Buckle had neglected to mention the additional work that he had undertaken as has been outlined earlier in these reasons.
The same day, namely 23 May 2018, after the receipt of the email, the applicant consulted Dr Harrison, who certified him as unfit for work for two days. He stated in addition to the stress, he was feeling even more depressed, finding it hard to sleep, and was still suffering panic attacks at work and on the way to work. The applicant returned to work after those two days. The Tribunal accepts this evidence from the applicant.
Subsequently, on 7 June 2018, the applicant was directed to attend a meeting in the presence of Loney and Shirley Hedditch, who were the Executive Manager and Human Resources Manager, respectively, of ACMA at the time. Much time was devoted in evidence as to what occurred in the course of that meeting. There was even a debate that occupied way too much time as to the colour and characteristics of the cover of the notebook that Hedditch took to this meeting. It was yet again a poor reflection on the way this case was conducted before the Tribunal. There was much that the parties could not agree upon. Hedditch took notes, which were subsequently transcribed, at that meeting. As the applicant had, by the time of that meeting, suffered the injury for which he had, by then, lodged a claim (the details of which will be outlined later) with the respondent, the Tribunal considers that it is not necessary to embark upon any real excursion into what exactly occurred in that meeting. It agrees with the applicant’s submission that any action, administrative or otherwise, that occurred after 23 May 2018 cannot chronologically or medically be said to be causal of the applicant’s claimed condition.
THE MEDICAL EVIDENCE
Dr Turnbull
Two reports were in evidence from Dr Turnbull. The first report was dated 26 February 2019.[32] A supplementary report was prepared by Dr Turnbull on 13 January 2020.[33]
[32] Page 341 of the joint Tribunal book, volume 1.
[33] Page 362 of the joint Tribunal book, volume 1.
Dr Turnbull considered that the applicant has suffered a relapse of a major depressive disorder with panic attacks. He opined that the illness had stemmed from the applicant’s workplace experiences.
He stated that the genesis of the applicant’s psychiatric condition, or its recurrence in 2018, was the cumulative effect of staff absence leading to the applicant assuming their workload and increased work hours. He stated that it was his impression that there was a build-up of work-related stress leading to his psychiatric condition in May 2018, such that he was progressively psychiatrically unwell, and factors leading to him working additional hours, and the working of additional hours itself were a significant cause.
He observed, both in his first report and from the witness box, that a ‘main issue’ with respect to the applicant’s condition arose when De Silva went on extended leave and the applicant had been heavily reliant upon his technical skills, and, without those skills at hand, the applicant was really stressed out. Dr Turnbull gave evidence that the applicant put some emphasis on this fact. The Tribunal observes that this evidence from Dr Turnbull about the effect that De Silva’s absence had on the applicant was consistent with the applicant’s evidence in the witness box.
In the witness box, Dr Turnbull described the applicant as experiencing ‘a sort of slow burn of a breakdown’. There were multiple events that contributed to him gradually breaking down. He described the email of 23 May 2018 as significant, but the other factors were also significant. As he put it, there was ‘a bit of meat on the bones’ before one got to the email. He also observed that the applicant was overwhelmed by increased workloads. He also observed that the applicant continued to try to work and essentially pushed as far as he could and there became a breaking point where he just could not simply face a return.[34]
[34] Transcript page 561 line 44.
Dr Turnbull considered that the applicant currently did not have any capacity for employment. He does not see that this capacity is likely to change in the foreseeable future in the absence of a realistic pathway towards recovery, in the face of quite debilitating panic symptoms. In the witness box, he described him as a shadow of his former self and consumed in rumination and panic when asked why the applicant did not have any capacity for employment.
Dr Turnbull said the applicant’s incapacity arose in May 2018.
Dr Harrison
Dr Harrison stated that the applicant first consulted with her regarding the claimed condition on 23 May 2018. She stated that this was also the date on which he was first impaired as a result of the claimed condition.[35] He presented on that day suffering from symptoms consistent with anxiety with panic attacks. His symptoms at that time were increased anxiety, panic attacks at work and on the way to work, agoraphobia, insomnia, increased appetite, decreased motivation and reduced concentration. The applicant stated to her that his symptoms began after he experienced bullying at work from a manager, at the same time as an increased workload. Dr Harrison stated that the applicant’s presentation was consistent with a diagnosis of generalised anxiety disorder and panic disorder
[35] Amongst other things, Dr Harrison's report to Comcare of 27 June 2018 is referred to.
She stated that the applicant had previously been diagnosed with depression and anxiety. Therefore, this is an exacerbation of a pre-existing condition.
Dr Harrison stated that the specific incident that aggravated the applicant’s claimed condition of anxiety and panic was bullying at work. She did not know of any non-employment incidents that contributed to such presentation.
She also stated that the applicant’s claimed condition affects his ability to return to work. Specifically, ongoing contact with the alleged bully is detrimental to his mental health, causing ongoing anxiety and panic attacks.
Dr Harrison expressed the opinion that the applicant is capable of performing his pre-injury duties, with the exception of directly reporting to the alleged bully, his then current manager. She recommended that the applicant return to work with an alternative arrangement for management/supervision or be allowed to work from home until the matter was resolved.
The Tribunal accepts the contention of the applicant that Dr Harrison’s reference to bullying by the applicant’s then current manager on 23 May 2018 can only be applicable to the conduct of Ms Buckle and the sending of the email of the same day.
Dr White
Dr White, who was called by the respondent, was a most impressive witness who gave his evidence impartially and was of much assistance to the Tribunal.
Dr White assessed the applicant on 11 July 2018 and prepared a report dated 20 July 2018, which was in evidence before the Tribunal.[36]
[36] Dr White's reported 20 July 2018 as at page 376 of the joint Tribunal book.
Dr White diagnosed the applicant as suffering from a ‘major depressive disorder, recurrent’. When in the witness box he described it as ‘a major depressive episode’. He said the first symptoms of the current episode appeared to have occurred in approximately May 2018. The main factors appear to have been a combination of increased workload when staff members were absent and reported simultaneous bullying by a supervisor. These events occurred in May 2018. The applicant had been well prior to then.
When in the witness box, Dr White said that the email of 23 May 2018 would have been pretty hard for the applicant to have taken, particularly given the language that was used. When asked what impact he considered the email of 23 May 2018 had on the applicant, he stated a ‘significant effect’, and that he thought ‘it was the straw that broke the camel’s back’.[37] He also stated that, in his clinical experience, it is pretty distressing being bullied. Additionally, he observed that it is extremely important for someone who had their psychological health compromised so seriously by the events that he noted in his report to feel their concerns were being taken seriously by management and to feel supported by their employer. He reiterated that when he saw the applicant, he continued to be severely impacted in a psychological sense by what had occurred in the workplace.
[37] Transcript page 987 lines 12-13.
Dr White was asked to comment on Dr Harrison’s diagnosis of general anxiety disorder and panic disorder, particularly how such diagnosis fitted in with his diagnosis of major depressive disorder, recurrent. He responded that they fitted in very easily because frequently most people who suffer from depression also suffer from anxiety. He also observed that, frequently, general practitioners, psychologists and, sometimes, psychiatrists are reluctant to diagnose depression for various reasons. They frequently prefer to diagnose the condition as an anxiety and panic disorder. He also pointed out that, in complete fairness to Dr Harrison, a busy general practitioner seeing a patient for the first time during what may have been a standard consultation simply does not have sufficient time to tease it all out. He stated he was very forgiving of the various diagnoses general practitioners use. Therefore, anxiety, generalised anxiety, panic and depression frequently overlap. Often those labels become somewhat irrelevant once depression has been identified.
Dr White also agreed with Dr Harrison’s observation that the email of 23 May 2018 sent by Buckle to the applicant was something dramatic that had a significant consequence causing the deterioration of whatever psychological condition the applicant was suffering from.
He also expressed the opinion that the applicant’s persistent lowered mood, loss of interest in his usual activities, tiredness, difficulties concentrating, binge eating, and suicidal ideation were attributable to his diagnosed condition of depression.
Dr White, also in the witness box, stated that he was of the opinion that being unfairly criticised based on an incorrect assertion about what he had not done in relation to a work task that had been identified was very important in the context of the applicant’s mind. He also considered that a significant aspect of the applicant’s feelings of worthlessness was the final event or ‘final straw’, as he called it, being the email he received on 23 May 2018 from Buckle.
Dr White also opined that the applicant appears to have an incapacity for any kind of employment at this point in time because of a plethora of psychiatric symptoms. He also stated that the applicant requires more robust psychiatric treatment before any kind of return to meaningful employment should be considered.
Dr Smith
There were two reports from Dr Smith, a consultant psychiatrist, before the Tribunal.[38] He did not give evidence at the hearing of the application. He diagnosed the applicant as suffering from a major depressive disorder with features of anxiety.
[38] The first report was dated 11 February 2019 and the second report was dated 1 July 2019.
In his February 2019 report, Dr Smith said that the applicant presented with an approximate nine-month history of clinically significant symptoms of depression, generalised anxiety, phobic anxiety and ruminative preoccupied thinking. He also stated it was apparent that the applicant’s levels of occupational stress had been increased for some time prior to the onset of overt symptomology.
Dr Smith concluded that the prognostic outlook is guarded. The applicant’s comorbid symptoms of depression and anxiety in several forms are chronic, moderately severe, unremitting and associated with global functional disability.
In his second report of 1 July 2019, Dr Smith stated that there had been no clinical improvement from when the applicant was last examined by him, and the prognostic outlook continued to be most guarded. He observed that, as previously noted, the applicant’s comorbid symptoms of depression and anxiety in several forms are chronic, moderately severe, unremitting and associated with functional disability particularly in relation to occupational and social functioning. Despite the appropriate adequate psychiatric and psychological treatments, he stated that the prognostic outlook for gainful employment of any kind in both the short term and the long term is poor.
Reisman
Reisman, a clinical psychologist, prepared two reports, one dated 23 January 2020 and another dated 17 September 2020.[39] The applicant consulted Reisman for a total of 16 sessions till March 2021. She also gave evidence at the hearing of the application. She diagnosed the applicant as suffering from anxiety, depression with symptoms of panic disorder and obsessive-compulsive disorder and some social anxiety.[40] She stated that the applicant’s depression was in the extremely severe range, as was his anxiety and stress.
[39] The report from Reisman of 23 January 2020 was at page 366 of the joint Tribunal book. Her report of 17 September 2020 was at page 370 of the joint Tribunal book.
[40] Transcript page 538 lines 21-23.
In her evidence, Reisman noted that the applicant, at the time of his assessment with her, had disrupted sleep, insomnia and overthinking. She also described a little bit of binge eating, especially when the applicant was nervous. Additional symptoms noted by her included panic attacks, low self-esteem, self-doubt, worrying about work, headaches, nervousness, bad dreams, concentration issues, loss of motivation, worrying quite a lot about things, difficulty making decisions, feeling hopeless about the future, and having a low mood.
She understood that the applicant’s psychological deterioration that culminated in his visit to Dr Harrison on 23 May 2018 arose from some difficulties in the workplace, including bullying, belittling and manipulation by a difficult colleague.
Conclusions on the medical evidence
The Tribunal considers that the preponderance of the medical evidence concerning the applicant’s condition is largely similar. It considers that he does suffer from a major depressive disorder with anxiety and panic disorder. The opinions expressed particularly by those doctors and other health professionals who gave evidence from the witness box largely accorded with each other. The impressive evidence given by Dr White, in which he largely accepted the diagnosis of Dr Harrison, demonstrates the relative comity between the medical practitioners. Dr White’s opinion is not particularly different from that of Dr Turnbull, given the expansion of his opinion to state that most people who suffer from depression also suffer from anxiety.
The Tribunal also accepts the evidence of Dr White, which was largely corroborated by Dr Harrison, not to mention Dr Turnbull, that the email of 23 May 2018 from Buckle to the applicant was the straw that broke the camel’s back. It also accepts his evidence that the email would have been rather hard for the applicant to have taken, particularly given the language that was used. It was clearly the trigger for the condition from which the applicant suffers. Dr White’s opinion does not really diverge from that of Dr Turnbull’s observations that there had been a ‘slow burn’ for some time which culminated in the events of May 2018. The Tribunal did not understand Dr Turnbull’s evidence to really diverge from that of Dr White when it comes to the effect of the email of 23 May 2018 on the applicant. Indeed, Dr Turnbull’s reference to a ‘breaking point’ is quite consistent with the conclusion of Dr White that there was a straw that broke the camel’s back.
By reason of the foregoing matters, the Tribunal concludes that the applicant’s psychological injury, being a major depressive disorder with anxiety and panic disorder, a condition outside the boundaries of normal mental functioning and behaviour, was contributed to, to a significant degree, by his employment.
DATE OF INJURY
Section 7(4) of the Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Section 7(6) provides:
An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c) the extent of the incapacity or impairment would have been significantly less.
The Tribunal is satisfied, based upon the medical evidence, let alone the operation of sections 7(4) and 7(6) of the Act, that the applicant’s injury, being a major depressive disorder with anxiety and panic disorder, occurred on 23 May 2018.
There was no evidence of any doctor before the Tribunal that suggested that the applicant’s injury occurred on any date other than May or namely 23 May 2018. The evidence of Dr White on this topic was compelling when he said that the email that Ms Buckle sent to the applicant on 23 May 2018 was the straw that broke the camel’s back. The Tribunal accepts Dr White’s evidence. It is also consistent with the evidence given by Dr Harrison and Dr Turnbull.[41]
[41] Dr Turnbull, it will be recalled, stated that the applicant's incapacity seemed to arise in May 2018.
It should be recalled that the applicant first consulted Dr Harrison about the claimed condition and presented with anxiety and panic attacks after he received the email on 23 May 2018 from Buckle.
Dr Smith who also examined the applicant on behalf of the respondent also said in his February 2019 report that the applicant presented with an approximate nine-month history of clinically significant symptoms of depression, generalised anxiety, phobic anxiety and ruminative preoccupied thinking. This opinion is also indicative of the date of injury being in May 2018. Given the preponderance of the evidence, this was most likely triggered by the receipt of the email from Buckle on 23 May 2018.
Dr Harrison in her report of 27 June 2018, and her evidence in the witness box, consistently asserted that it was on 23 May 2018 that the applicant was first impaired as a result of the conditions from which he suffered. On that note, it is also consistent with the information contained in the Certificate of Capacity signed by her on 23 May 2018.[42] In the area headed ‘[c]linical symptoms/diagnosis’, she has recorded ‘[a]nxiety, panic attacks, insomnia’. Under the heading ‘[c]omments on mental capacity’, she has recorded ‘[i]ncreased anxiety affecting performance’ and ‘panic attacks'. Under the heading ‘[c]omments on other issues impacting recovery or return to work’, it is recorded, ‘[b]ullying from management’ and ‘increased work demands/stress’. The applicant is then in that Certificate of Capacity certified as unfit for work from 23 May 2018 to 25 May 2018. Under the section headed ‘[f]actors which may be relevant to the condition or recovery (if any) are’, it is recorded ‘[b]ullying by manager’ and ‘[i]ncreased work demands due to staff absences’.
[42] Page 1164 of the joint Tribunal book.
The applicant contends, and the Tribunal agrees, the fact that, in the first Certificate of Capacity that was produced after his first attendance on Dr Harrison on 23 May 2018, reference made to the applicant suffering from insomnia is entirely consistent with the level of stress and anxiety that he gave evidence of experiencing prior to 23 May 2018. Therefore, the applicant contends that his claimed condition has a date of injury of 23 May 2018.[43]
[43] Paragraphs 60 and 65 of the Applicant’s written submissions are referred to.
The respondent also submits, and the Tribunal agrees, that the applicant suffered psychological injury on 23 May 2018 when he received the email dated 23 May 2018 from Buckle. It further contends that the psychological injury is excluded from compensation because sending the email was a reasonable administrative action taken in a reasonable manner within the meaning of those terms in section 5A of the Act.[44]
[44] Paragraph 6 of the Respondent’s Written Submissions are referred to.
It is agreed by the parties that the action taken by Buckle in writing and sending to the applicant the email of 23 May 2018, was administrative action in the relevant sense within the meaning of section 5A(2) of the Act. It is also acknowledged by the parties that this step was administrative action ‘in respect of the employee’s employment’ in relation to the applicant’s employment.[45]
[45] Paragraph 34 of the ‘Written Submissions on Behalf of the Applicant’ and paragraph 17 of the ‘Respondent’s Written Submissions’ are referred to.
The applicant’s perception of overworking and/or bullying prior to 23 May 2018
Both parties acknowledge that misperceptions of factual circumstances in employment by an applicant who suffers a mental condition or psychiatric reaction as a result of such misperception is compensable provided that there exists a factual basis for such misrepresentation.
For the necessary causal link to be established, it is necessary that the perception be about an incident or state of affairs that actually happened. It is important to note that the employee’s perception is not required to be reasonable or necessarily reflect reality.
As a starting point, reference was made to several passages from the decision of Von Doussa J in Weigand v Comcare Australia (‘Weigand’).[46] His Honour stated:
All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.[47]
[46] (2002) 72 ALD 795.
[47] Ibid [24].
His Honour further observed:
In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.[48]
[48] Ibid [31].
The findings of Von Doussa J were considered and applied by Collier J in two helpful passages of the case of Telstra Corporation Ltd v Hunter (‘Hunter’).[49] They are worthwhile reproducing as follows:
As Von Doussa J explained in Wiegand at [24], the key question in considering whether an employee has suffered an “injury” by way of aggravation of an existing ailment within the meaning of s 5A(1)(c) of the [Act] is whether the employee has been exposed to some state of affairs in the course of the performance of his duties (and to which he or she would not otherwise have been exposed) which contributes to the ailment he or she suffers. It may be that, because the employee suffers a particular condition, the state of affairs aggravates that condition of that particular employee. The answer to this key question entails factual findings by the Tribunal. Indeed this is the context in which his Honour in Wiegand referred to the “perception” of the particular employee who suffered depression and whose condition was aggravated by the state of affairs in that case.
Once the Tribunal forms a view about this question, the next question is whether the proviso to s 5A(1) operates, and whether the employee has suffered the relevant aggravation as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.[50]
[49] [2016] FCA 318.
[50] Ibid [60]-[61].
Perception – overworking in the period leading up to 23 May 2018
The Tribunal has recounted some of the relevant facts that are germane to this application in the earlier parts of these reasons. It repeats that it has accepted the evidence of the applicant and that he genuinely perceived that Buckle was against him and that he was overworked. His particular belief that he was overworked had been building up over some months in 2018 and was later amplified, firstly, by the absence of Davey and subsequently De Silva. As noted by Von Doussa J, in the passage from Weigand cited above, it matters not whether such a belief was reasonable or unreasonable in the thinking of others.
In any event, both Davey and De Silva were experienced and valued employees who made a significant contribution to the section that was managed by the applicant. Their absence unquestionably led to a further workload for the remaining employees, including the applicant. He managed both Davey and De Silva. Davey was a valued employee who made a significant contribution to the workplace. His absence left a significant gap.
Further, it was not disputed by any of the respondent’s witnesses, both in their witness statements and when they were in the witness box, particularly Buckle, that De Silva possessed significant technical expertise that the applicant did not. This accorded with the applicant’s evidence. The Tribunal accepts that the applicant drew upon De Silva’s expertise frequently. It also accepts that it would not have been easy for him to immediately find a substitute or replacement for De Silva’s expertise. Buckle in her evidence contended that there were other people with the relevant expertise that the applicant could have drawn upon. The Tribunal acknowledges this, but nonetheless considers that, in the applicant’s mind, it placed him under additional workplace pressure. It was his reality. The Tribunal finds that the simultaneous absence of both Davey and De Silva reasonably contributed to the applicant’s perception at that time that he was being overworked in the period prior to 23 May 2018.
By reason of the foregoing matters, the Tribunal finds that the applicant was exposed to a state of affairs in the course of the performance of his duties (and to which he would not otherwise have been exposed), which contributed to the psychiatric condition from which he now suffers. Accordingly, it also finds that he has suffered an injury by way of an aggravation of an existing ailment within the meaning of s 5A(1)(c) of the Act.
Bullying
The Applicant made submissions concerning alleged bullying, particularly by Buckle.
These submissions made by the applicant referred to the definition of bullying contained in s 789FD of the Fair Work Act 2009 (Cth) (‘Fair Work Act’). It is not necessary to reproduce that section for the purposes of these reasons.[51] It is referred to in its entirety for its full force and effect. However, under s 789FD, a worker is bullied at work if an individual, or a group of individuals, repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.
[51] Section 789FD of the Fair Work Act is reproduced in full at paragraph 79 of the ‘Written Submissions on Behalf of the Applicant’ dated 5 April 2022. Paragraphs 89 to 91 of the same document are referred to as they contain an accurate summary of the application of the Fair Work Act and its application to the question of bullying.
As observed by the applicant’s submissions, what constitutes unreasonable behaviour towards an employee is not further amplified in the Fair Work Act. Reference was made by the applicant in submissions lodged on his behalf to the Explanatory Memorandum to the Fair Work Amendment Bill 2013. That Explanatory Memorandum records that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. It is an objective test and necessarily includes behaviour that is victimising, humiliating, intimidating or threatening.
The applicant also referred to a decision of the Fair Work Commission in Mac v Bank of Queensland (Mac)[52], which was an application made under the Fair Work Act for a ‘stop bullying’ order. In that case, the Fair Work Commission held that without limiting what bullying behaviour may include, some examples are intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.
[52] [2015] FWC 774.
The Tribunal has, earlier in these reasons, outlined the facts and events relied upon by the applicant, which he contended constituted bullying on the part of Buckle. For the reasons previously articulated, the Tribunal does not find that the conduct of Buckle referred to and relied upon by the applicant constituted bullying as explained by reference to either s 789FD of the Fair Work Act or by a consideration of further examples of what may constitute bullying identified in such cases as Mac. It must be repeated that the Tribunal considers that Buckle conducted herself in a direct and formidable way, which was probably taken by the applicant to mean that Buckle was against him. However, the Tribunal concludes that she did not repeatedly behave unreasonably toward the applicant, and she did not otherwise engage in behaviour that was captured by any of the examples of bullying as previously noted.
The Tribunal also rejects the contention that the behaviour of Buckle constituted bullying in the relevant sense because it accepts the evidence given by Fosten on this topic. In cross-examination, Fosten referred to a discussion he had with the applicant at a performance appraisal review in January 2018. Whilst it is before the time that the applicant suffered the onset of his psychiatric condition, it is nonetheless instructive. Fosten stated at that meeting the applicant told him that he was having difficulty getting along with Buckle. This was quite evident to the Tribunal from the evidence that was given. It was common ground between the parties that they did have difficulty getting on. There is a significant difference between not really getting on and bullying. Critically, in the context of bullying, Fosten gave evidence that at that meeting the applicant ‘didn’t identify directly to me that he felt he’d been bullied’.[53] One would have expected at such a meeting, had the applicant believed he had been bullied, for him to have said so in no uncertain terms. The Tribunal accepts Fosten’s evidence concerning what was said by the applicant at that meeting.
[53] Fosten’s evidence at Transcript page 904 lines 26-46 is referred to.
Did the email of 23 May 2018 constitute reasonable administrative action?
In undertaking a consideration of this question, the Tribunal considers that a useful starting point is to ascertain precisely what the applicant was required to do in the event of an unexpected absence as occurred on 21 May 2018.
Tendered in evidence was a document from ACMA entitled ‘Leave: availability and access’ instruction.[54] In that instruction, there are specific paragraphs headed ‘Notification of absences’.[55] The first two paragraphs of that section, provide as follows;
Managers should discuss their preferred method of notifying unexpected absences with their employees.
Where an employee will be unexpectedly absent from work they must notify their manager/supervisor of their absence, the nature of the absence and the expected period of absence before 10.00 am on the day of absence.
If leave is not reported by 10.00 am, the manager should attempt to contact the employee. If failing to make contact, the manager should contact People and Workplace.
[54] Exhibit R4. In clause 1.1 of the instruction states, amongst other things, ‘Information in this instruction is consistent with the leave provisions set out in the ACMA’s Enterprise Agreement (EA), SES Employment Contracts and Individual Flexibility Arrangements’.
[55] These paragraphs formed part of clause 1.2 of the document headed ‘Responsibilities’. In the preamble to it, the document was described as an ‘instruction’.
The Tribunal finds that the ACMA ‘Leave: availability and access’ instruction applied to the applicant’s unexpected absence from the ACMA office on 21 May 2018.
The respondent contends that clause 1.2 of the instruction does not provide any justification for the applicant staying at home on 21 May 2018. It further submits that the applicant did not comply with the requirements of clause 1.2. The basis of this contention is that it is said the applicant did not notify any manager/supervisor. Nor did he advise any other manager/supervisor.[56] The Tribunal cannot accept this contention. For reasons that will subsequently be articulated, the Tribunal finds that the applicant did notify his manager/supervisor on 21 May 2018 in accordance with the requirements of clause 1.2. He did so by texting Buckle. He also on the same day notified Cannington as mentioned when he requested that she collect a summons from the CDPP. Cannington also as observed, notified Head about the applicant’s absence and his request for her to collect the summons which she did out of an abundance of caution.
[56] Paragraph 115 of the respondent's closing submissions is referred to.
It is then contended on behalf of the respondent that the applicant’s decision to work from home without permission was contrary to the requirement of seeking permission to work from home before doing so, absent some special arrangement between the employee and manager.[57] The Tribunal also cannot accept this contention. On its proper construction when applied to the facts that occurred on 21 May 2018, which constituted an ‘unexpected absence’ on the part of the applicant within the meaning of clause 1.2, he was not required to obtain permission.
[57] Paragraph 116 of the respondent's closing submissions is referred to.
Buckle in cross-examination conceded quite readily that the applicant’s usual means of alerting her in relation to his delayed attendance or attendance issues was by means of text. This had occurred on several occasions that were explored in the evidence given by both the applicant and Buckle. There was indeed evidence by way of example of text messages being sent on 4 April, 11 April and 3 May 2018 by the applicant to Buckle advising her that he was running late for various reasons. Buckle did not cavil with this approach adopted by the applicant and acquiesced in it. Given this concession and evidence, the Tribunal finds that the preferred method of notifying Buckle, as his manager, of unexpected absences to be adopted by the applicant was by way of text message. This method was accepted by Buckle. Additionally, it should also be noted that at no time did Buckle advise the applicant that he should not contact her concerning matters of absence or non-attendance by way of text. She did not seriously contend that there was another preferred method of making contact with her that satisfied the provisions of the ‘Leave: availability and access’ instruction, such as, for instance, email or by making a telephone call.
Buckle also conceded in cross-examination that 10.00am was the time by which the applicant was obliged to notify her of any unexpected absence. This accords with the requirements of the applicable clause of the ACMA ‘Leave: availability and access’ instruction. This is contrary to the evidence that Buckle gave that the applicant acted inappropriately staying home to work without permission or her denial that he was entitled to make the decision without seeking and obtaining permission as she asserted in her witness statement.[58] In the case of unexpected absences, the applicant was not required to seek permission from his manager/supervisor; he was only required to notify that person by 10.00 am on the day of absence.
[58] Paragraph 12 of her witness statement, dated 2 August 2019, is referred to (pages 79-130 of the Tribunal book). She also said, at paragraph 27 of the same witness statement that the applicant, ‘had no right to remain at home without permission’. She gave evidence to a similar effect initially when in the witness box. This inconsistency in her evidence is another reason why the Tribunal prefers the evidence of the applicant.
Fosten also conceded in cross-examination that, in the case of an unexpected absence, the applicant was not required to seek approval in advance.[59]
[59] Transcript page 878, lines 7-10.
Indeed, there were several instances before the Tribunal where employees of ACMA had worked from home without permission, having simply notified their relevant manager/supervisor. They had not obtained permission to do so.
There was an example on 5 March 2018, when Fosten’s car broke down and he worked from home whilst waiting for a repairman to attend at his residence. He sent an email to Loney advising that he would be working from home on that occasion.[60] Fosten did not seek permission to work from home on that day.
[60] The email from Fosten to Loney is found at page 68 of the Tribunal book.
On 30 April 2018, Buckle worked from home and notified Cannington, the applicant and one Trimcevski of this fact by email.[61] She did not seek permission from them or anyone else to do so.
[61] The email is on page 26 of the Tribunal book.
Similarly, Buckle worked from home on 14 May 2018. She notified several staff members of this fact by an email on that day.[62] There was no evidence that she sought permission to do so. It seemed to be an accepted practice within the office.
[62] The email is found at page 27 of the Tribunal book.
Loney worked from home on 21 May 2018 as both his daughters were ‘off school with sprains and grazes after falls over the weekend’. It was clearly an unexpected absence. He sent an email to several staff members of ACMA informing them that he would be working from home.[63] It complied with his obligations under the ‘Leave: availability and access’ instruction.
[63] The email from Loney is at page 28 of the Tribunal book.
Fosten, in cross-examination, also conceded that the reference by Buckle in the email of 23 May 2018 that working from home was completely unacceptable was on the basis that it was an urgent situation was not true or accurate.[64]
[64] Transcript page 879, lines 1-3.
Given this established office practice of several employees apparently regularly working from home without seeking permission when an unexpected absence arose, the Tribunal finds that the language adopted by Buckle in the email of 23 May 2018, in which she was highly critical of the applicant for working from home without permission on 21 May 2018, was not justified and therefore was not reasonable in the relevant sense. It was not reasonable administrative action taken in a reasonable manner.
Buckle additionally conceded in cross-examination that the requirement was for the applicant to notify his manager/supervisor on the day. She also conceded, somewhat reluctantly, that on 21 May 2018 the applicant’s obligation was to notify her of his unexpected absence because she was his manager/supervisor on that day. Buckle sought to deflect from this fact by saying that the applicant could also have gone to Loney and notified him, because he knew she was not well on that day. When pressed, Buckle also conceded that, of course, Loney was not acting in her position on the day in question. Loney was Fosten’s manager. In any event, Loney was not at work on that day. She also conceded that she did not tell the applicant that he was not to contact her whilst she was away or unwell.
Fosten also conceded in cross-examination that on the basis that the applicant had sent a text to Buckle at 9:59am on 21 May 2018, he had adopted a reasonable and valid approach to the situation.[65] He also conceded that the applicant was compliant on that day with the ACMA unexpected absences policy, (Clause 1.2 ‘Notification of absences’).[66] Additionally, he agreed that the ACMA unexpected absences policy required the applicant to advise a supervisor/manager before 10.00am of any unexpected absence and that Buckle was the applicant’s supervisor on the day.[67]
[65] Transcript page 879, lines 38-46.
[66] Transcript page 896, lines 18-19.
[67] Transcript page 898, lines 4-11.
The Tribunal finds that the statement in the email of 23 May 2018 that the applicant’s working from home was completely unacceptable was not reasonable administrative action taken in a reasonable manner. It does so because what the applicant had done on 21 May 2018, on its true and proper construction, satisfied the requirements of the applicable clause of the ACMA ‘Leave: availability and access’ instruction. Further, this view is reinforced by the concessions of Buckle and Fosten, referred to above, which acknowledged that he had complied with the terms of such instruction.
Therefore, the Tribunal finds that the applicant in sending the text message to Buckle at 9.59am on 21 May 2018 complied with his obligations to ACMA under the applicable clause, namely ‘Notification of absences’, of its ‘Leave: availability and access’ instruction, which was referred to above. This finding is also consistent with a concession, made by Buckle in cross-examination, that the situation the applicant found himself in on 21 May 2018 was an unexpected absence, as identified in the ‘Leave: availability and access’ instruction.[68]
[68] Transcript page 714, lines 4-6.
Another contention advanced by the respondent was that the applicant engaged in an opportunistic argument in relying upon the ‘Leave: availability and access’ instruction. The grounds for making this submission were that the applicant in one of his witness statements before the Tribunal, dated 17 March 2019, stated that he was not sure if there was any specific ACMA requirement to seek approval or prior approval, as an EL1 to work from home on a single day. The Tribunal considers that whether or not the applicant was aware of the applicable provisions of clause 1.2 of the ACMA ‘Leave: availability and access’ instruction, it nonetheless applied. He is, therefore, entitled to avail himself of its provisions.
The Tribunal also finds that the alternatives contained in the text message of 21 May 2018, that if Buckle was uncomfortable with him working from home, he could take recreational leave but would prefer not to, as there was ‘heaps to do’, was, in practical terms, seeking permission. Certainly, the options contained in the text in practical terms, given the situation that the applicant found himself in, was a reasonable endeavour on his part to address that situation. In his evidence, which the Tribunal accepts, the applicant stated that it was not his preference not to work on the day in question, he was simply seeking Buckle’s permission to work from home in the circumstances that arose spontaneously. Buckle also conceded in answer to questions in cross-examination that the applicant was seeking her permission to work from home in his text to her on 21 May 2018.[69] Fosten also accepted, in cross-examination, that the applicant had sought approval to work from home on that day.[70] Additionally, Buckle conceded that the applicant had done what he could in order to obtain permission by sending the text to her.[71] He received no reply.
[69] Transcript pages 655, lines 41-42, and 656, lines 5-6.
[70] Transcript page 872, lines 1-2.
[71] Transcript page 656, lines 27-28.
It is also surprising, given the content and tenor of the email of 23 May 2018, sent by Buckle to the applicant, that Buckle did not respond at all to the text message from the applicant. Given the reaction of Buckle as expressed both in the email and in her evidence to this Tribunal, it is surprising indeed that she did not immediately respond in some shape or form when she finally read the text message at approximately 4:59pm on 21 May 2018. This failure also needs to be viewed with a degree of realism. By 21 May 2018, Buckle had been concerned for some time about the applicant’s work performance. In evidence at attachment ‘HB-1’ to her witness statement of 2 August 2019, Buckle produced detailed notes concerning ‘some of the matters that arose involving [the applicant]’. If Buckle considered the applicant’s actions on 21 May 2018 to be such a breach of her trust, as she asserted in the email of 23 May 2018, it seems almost inconceivable that she would not have spoken to the applicant once she became aware of the contents of the text message. In her evidence, she said she believed she never responded to the text message from the applicant on 21 May 2018.[72] Even making an allowance for the fact that Buckle was ill on that day, one would have expected her to have spoken to the applicant on the next available opportunity when she was able to do so.
[72] Transcript page 645, line 24.
In this setting, it is similarly inconceivable that Buckle attended work the next day when the applicant was present, yet she did not speak to him and raise matters of his non-attendance the day before in the way she subsequently did in the email of 23 May 2018, or, for that matter, raise any aspect of his non-attendance on that day. It is all the more surprising that she did not have a discussion with the applicant on that day as she had shown a propensity to do so in the past when she had concerns about his attendance. By way of example, the entry in her notes of 11 April 2018 records that the applicant advised her by text he would be delayed by half an hour due to a V/Line track fault. After he arrived, she had a face-to-face conversation with him about his ‘attendance patterns’ that apparently went for some time.[73] She made detailed notes of the conversation. It is surprising that she did not speak to him on 22 May 2018. It is very easy to see in the light of no comment being made by Buckle to him on 22 May 2018 that the applicant may well have assumed that she had no issue with his actions the day before. The Tribunal considers it was a reasonable assumption to make. Buckle, in her evidence, said that making such an assumption was ‘a bit of a stretch’.[74] However, she did not steadfastly (as she was otherwise prone to do) deny that the applicant could make such an assumption. In that setting, therefore, the email of 23 May 2018 is more likely to have come as a shock to him (or, in the words of Dr White, been the straw that broke the camel’s back) as the Tribunal finds it did.
[73] The relevant entry in her notes stated, ‘BUCKLE seeks an appointment with PETERSON to discuss attendance’. The emphasis on the parties’ surnames was added by Buckle.
[74] Transcript page 645, line 37.
Given that the Tribunal has concluded, for the reasons articulated earlier, that the applicant notified Buckle of his unexpected absence from work on 21 May 2018 in accordance with the provisions of the ACMA ‘Leave: availability and access’ instruction, the content of her email on 23 May 2018 was not reasonable administrative action taken in a reasonable manner. As noted earlier, the views of Buckle were predicated on the mistaken belief that, in the case of unexpected absences, the applicant was required to seek and obtain her permission to work from home. It must be repeated that this was not the case. Also, given that the applicant had complied with the provisions of the ‘Leave: availability and access’ instruction, the strong language resorted to by Buckle in the email was not reasonable. Her intentions in sending the email to escalate the matter were, therefore, not reasonable. For instance, to state that that she ‘was dismayed’ when she learnt that he had worked from home was not justified. Similarly, her use of the words ‘[t]his makes your working from home completely unacceptable’ and ‘I am concerned by your judgement’, when he had complied with the terms of the ACMA ‘Leave: availability and access’ instruction and did what he was supposed to do was not reasonable in the circumstances. His working from home could not be completely unacceptable when he had complied with the provisions of the applicable instruction. Buckle could not have reasonably become concerned about his judgement when he did all that he was required to do when the circumstances surrounding his unexpected absence from work on that day came to light. Additionally, the passage ‘I hope that you will now work hard to restore my trust and that you can illustrate to the team you are reliable and respectful of their workloads’ was particularly strong language. It implies that the applicant had breached her trust and that he was not reliable and respectful to other staff members’ workloads. In cross-examination, she said that she had lost trust in the applicant and that he had to restore her trust.[75] The Tribunal has concluded that this was not the case. There was no proper basis or platform for Buckle to reach the conclusion that she had lost trust in him. The Tribunal has found that the applicant did not underperform or conduct himself towards Buckle that justified such a conclusion or response. Therefore, making the use of such language adopted in the email was unreasonable.
[75] Transcript page 718, line 42.
The Tribunal also considers that sending the email of 23 May 2018 in the very strong language that was used was not reasonable administrative action taken in a reasonable manner, given that Buckle, when she had the opportunity to do so, did not speak to the applicant directly when they were both present in the office on 22 May 2018. Buckle conceded that she had not given the applicant an opportunity to respond to the matters before she drew the conclusions that she did in the email.[76] She had not found out what his position was in relation to such allegations.[77] It was also conceded by her that she had not given any thought whatsoever to the fact that the applicant had advised her that he was feeling depressed and down before she sent the email.[78] This is amplified because of the reasonable assumption that the applicant probably had thought that Buckle had no issue with his actions the day before. It was clear that the email came to the applicant as a bolt out of the blue. Having had the opportunity to observe Buckle in the witness box, she presented as someone who was perfectly capable, as she had done in the past, of confronting the applicant and having a candid discussion with him, in which she could have aired her concerns about his conduct the day before, or, for that matter, his attendance patterns generally. Certainly, Fosten, with respect to the applicant’s attendance, conceded in cross-examination that it would have been a preferable course of action to speak to the applicant first rather than send the email.[79] The Tribunal agrees. It most likely could have cleared the air in a sensible manner. The failure to do so on that day, it must be repeated, also makes the email of 23 May 2018 and the language used in it unreasonable administrative action.
[76] Transcript page 720, lines 14-21.
[77] Transcript page 721, lines 17-19
[78] Transcript page 721, lines 25-29.
[79] Transcript page 898, lines 46-47.
Another reason why the Tribunal considers that Buckle’s action in sending the email of 23 May 2018 was not reasonable administrative action taken in a reasonable manner arises from the concessions that she made in cross-examination that she knew the applicant was feeling depressed and down as early as 11 April 2018. Given this knowledge, the language used in the email, which was particularly strong, was inappropriate. It was, in the words of Dr White, likely to have ‘a significant effect’ and the Tribunal considers that this would have been apparent to Buckle. Her concerns with respect to the applicant’s actions on 21 May 2018 should have been addressed in a far less confrontational way. It was not reasonable administrative action taken in a reasonable manner. More likely than not, her concerns should have been addressed by way of a face-to-face meeting at the earliest opportunity, which was the next day when they were both present in the office. Such meeting should have been conducted in a way in which the applicant was given ample opportunity to explain his side of the story. It should also have been conducted in a way that recognised that the applicant had been feeling depressed and down. The Tribunal also considers that in the circumstances it would have been more prudent, or reasonable, for Buckle to have consulted with Hedditch, ACMA’s Human Resources Manager, prior to sending the email and taken guidance from her.
Some mention should also be made of the reference in the email of 23 May 2018 to the collection of the summons from the CDPP. As noted earlier considerable amount of time during the hearing of this matter was devoted to this question. Buckle contended that the fact that Cannington undertook certain work functions for the applicant did not make it right that he had asked her to collect the summons.[80] It was emphasised by her in her evidence that there was a ‘really tight statutory timeframe’ for the service of such summons. Her contention from the witness box was that if the applicant had been in the office on 21 May 2018, he could have collected the summons and signed it on the spot and actioned it straight away. Once again, in cross-examination, Buckle’s evidence shifted. She conceded that there was no ‘magical special qualification’ required to collect a summons.[81] Additionally, Buckle conceded that the applicant was Cannington’s supervisor on 21 May 2018.[82] He made a request of somebody he was managing in a team.[83] Also, it was conceded by her in cross-examination that there are things other people pick up when it could not be done on a particular day. She acknowledged that the applicant could equally have collected the summons on the day he returned to work on 22 May 2018.[84] She acknowledged that the statutory deadline with respect to the summons was met.[85] Also, she admitted that there was no work that specifically required the applicant to be in the office on 21 May 2018.[86]
[80] See paragraph 28 of the witness statement of Buckle dated 2 August 2019.
[81] See Transcript page 647, lines 46-47.
[82] See transcript page 649, lines 37-44. This was also borne out by the content of an email sent by Cannington to the applicant on 17 May 2018 (page 67 of the Tribunal book), in which she states that the applicant was her supervisor for the relevant period. It was further confirmed by the evidence of Cannington herself and Fosten. (Transcript page 865, lines 32-36.)
[83] Transcript page 715 lines 33-34. She also conceded in her cross examination that if someone was away there may well be something that that person might ask a member of the team or someone in the office to undertake in their absence. Transcript page 717 lines 1-2.
[84] Transcript page 650, lines 35-38.
[85] Transcript page 715, line 13.
[86] Transcript page 715, lines 45-46.
The Tribunal considers that several things emerge with respect to this issue. Cannington, when she spoke to the applicant on 21 May 2018, did not raise any concerns with him about his request for her to collect the summons from the CDPP. Having had the opportunity to observe Cannington in the witness box, it is surprising that she did not, given her forthright approach.
The applicant was not informed by either Cannington or Buckle on 21 May 2018 that arrangements were made for Head to collect the summons. That Cannington did not discuss the matter further with the applicant is somewhat surprising. This is because in her evidence she stated that she had lingering concerns that collecting the summons was not merely a minor administrative matter as had been conveyed to her by the applicant. One would have expected firstly that she might have raised these concerns with the applicant in the initial conversation when he called her or, alternatively, had followed up with him as those concerns crystallised in her mind.
It should also be noted that Head, Acting Assistant Manager/Senior Investigator, who did collect the summons, and who was Cannington’s then-supervisor, also did not speak to the applicant at any time expressing any concerns about undertaking this task. There is no evidence to show that she had any concerns about the request. Once again, one would have expected that, if it was such an important issue, as was attempted to be conveyed by both Buckle and Cannington when they were in the witness box, more probably than not Head, who was ultimately entrusted with the task, might well have taken the question up with the applicant. The Tribunal can only infer that it was not of such a concern to her. It was, after all, a relatively routine task. It was collected on 21 May 2018 and the applicant was able to take further action the next day.
On 21 May 2018, it was acknowledged that Davey and De Silva were absent, and Cannington was the only person that the applicant then had present in his team.[87] Given the apparently tight timeframe for the service of the summons concerned and the applicant’s unexpected absence on that day, it seems perfectly logical, and, for that matter, reasonable for the applicant to have contacted Cannington and made the arrangement he did for the collection of the summons so that the matter could be progressed the next day when he returned to work. He gave evidence, which was not disputed, that the offices of the CDPP and ACMA were reasonably close. It is understandable that a simple task such as collecting a summons might be the subject of a request of a fellow employee, whatever the employment relationship between them may be in the circumstances of the applicant’s absence and an approaching deadline. His actions on that day did not warrant the response, as it was framed, in the email from Buckle to him on 23 May 2018. It was not reasonable action in the circumstances for that reason. The Tribunal considers that the respondent, through the aegis of Buckle in particular, in its conduct of this application has very much overemphasised the collection of the summons question to a significant degree. Too much time of the Tribunal was spent on this topic.
[87] For instance, see the evidence of Fosten, Transcript page 870, lines 30-34. This was consistent with the applicant's evidence and that of several other witnesses called by the respondent.
Similarly, on the next day that the applicant returned to work in the office on 22 May 2018, neither Cannington nor Buckle raised the issue of the collection of the summons with him. If there were concerns held by either of them about the issue, as they subsequently expressed in both the witness statements and from the witness box, it is surprising indeed that they did not take it up with the applicant on that day when he was present at the office. It is also surprising that Buckle remained silent on that day and, as she said in her evidence-in-chief, that she took ‘umbrage’ with what the applicant did on that day. They were strong words. As she put it, he in her eyes, although he was Cannington’s supervisor, he seemed to ‘confuse her as some sort of clerk or administrative officer for his convenience’.[88] Once again, this wall of silence concerning this topic, particularly from Buckle, more likely than not, led the applicant to believe that neither Cannington nor Buckle had any issue or other concerns with respect to the request that he made of Cannington to collect the summons, as he did the day before.
[88] Transcript page 618, lines 36-39.
Mention should also be made of the fact that Fosten in cross-examination also admitted that the summons was served within the appropriate timeframe.[89] Fosten additionally admitted that the applicant was permitted to ask a member of his team to help out and collect the summons.[90] He also admitted that as it turned out ‘the deadline issue was a storm in a teacup’[91] and, also, that it was not a matter worthy of rebuke.[92] Given these concessions, the Tribunal is puzzled why this issue occupied so much time at the hearing of this application. It also further highlights why reference to this topic in the email from Buckle to the applicant on 23 May 2018 was unreasonable. If the issue was not worthy of rebuke, one has to ask why reference was made to it in the email and the strong language resorted to. The Tribunal also considers that these concessions should realistically have been made when addressing the issue in the Employer Statement, attachment ‘CF-1’ to Fosten’s statement, and, for that matter, in the part of his witness statement that also addressed the issue. It is also a reason why the Tribunal prefers the evidence of the applicant with respect to his workload over Fosten’s rejection of the proposition that the applicant was overworked.
[89] Transcript page 874, lines 42-43.
[90] Transcript page 875, lines 1-2.
[91] Transcript page 876, lines 8-10.
[92] Transcript page 879, line 24.
There is another passage of the email of 23 May 2018 that also warrants consideration by the Tribunal. It is worthwhile reproducing the passage of the email in full.
I have spoken to you about your attendance before 11 April in relation to your hours of work and specifically the times you started on 4 (arrived at 11.15 pm [sic]) and 11 April (10.25 am). Additional hours have not been worked by you to make up for this shortfall and no leave has been submitted.
Buckle conceded in cross-examination that she did not know what additional hours the applicant had worked after the 11 April 2018 meeting that she had with him. She also conceded she did not know whether there had been any attempt to make up the shortfall by the time she sent the email on 23 May 2018.[93] The Tribunal considers that it was not reasonable administrative action taken in a reasonable manner to send the email adopting the language used with respect to an alleged shortfall of hours when no crosschecking or independent verification had been undertaken to determine what hours the applicant had or had not worked.
[93] Transcript page 717, lines 8-24.
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.
142. I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
........................[sgd].........................
Associate
Dated: 22 March 2023
Dates of hearing: 10-12 February 2020, 2-6 August 2021, 9-13 August 2021, and 16-20 August 2021
Counsel for the Applicant
Cassie J Serpell
Solicitor for the Applicant:
Counsel for the Respondent:
Solicitor for the Respondent
Rubicon Compensation Lawyers
Joseph Lenczner
Sparke Helmore
0
2
0