Pickering and Linfox Australia Pty Ltd (Compensation)
[2022] AATA 221
•14 February 2022
Pickering and Linfox Australia Pty Ltd (Compensation) [2022] AATA 221 (14 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/1214
Re:Eric Pickering
APPLICANT
AndLinfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:14 February 2022
Place:Sydney
The correct or preferable decision is that the reviewable decision dated 3 March 2020 is set aside and in substitution, the Tribunal decides:
(a)the Applicant suffered an ailment, appropriately described as an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” (the Injury) which was contributed to, to a significant degree, by his employment with the Respondent and he is entitled to compensation, in accordance with s 14 of the SRC Act, for the Injury; and
(b)the Respondent is to pay the Applicant’s reasonable costs and disbursement of the proceedings (to be agreed or assessed).
...........................[sgd].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – does the Applicant suffer from an ‘ailment’ as defined in the Act - psychiatric condition – whether the Applicant’s ailment was contributed to ‘to a significant degree’ by his employment, such that he had a disease and therefore an injury under the Act – whether the disease was suffered as a result of a ‘reasonable administrative action’ taken in a ‘reasonable manner’ with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ under the Act – decision set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5, 5A, 5B, 14
CASES
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi [1996] FCA 1587
Comcare v Power [2015] FCA 1502
Inco Ships Pty Ltd v Hardman [2007] FCA 1138
Keen v Workers Rehabilitation and Compensation Corporation (1998) SASC 7056
Lim v Comcare [2017] FCAFC 64
Re Robertson and CSR Shipping [2001] AATA 325
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
14 February 2022
NATURE OF APPLICATION
Mr Pickering (the Applicant) has made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for an “adjustment disorder with anxiety” which he alleges was contributed to, to a significant degree, by his employment with Linfox Australia Pty Ltd (the Respondent). He claims his injury, sustained on 26 August 2019 and he first sought medical treatment for his injury on 27 August 2019, was a consequence of “work pressure” and “bulling/victimisation from the Company and HR Department”.
The Applicant made this claim on 16 December 2019. The Respondent issued a determination dated 22 January 2020 in which it denied liability for the claimed condition. Its delegate decided that she was satisfied that the Applicant had sustained a condition which could be characterised as “outside the boundaries of normal mental functioning and behaviour” namely an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” which was significantly contributed to by his employment with the Respondent. However, she also found that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act and so his claim was disallowed.
The Applicant requested a review of that determination on 14 February 2020. By a reviewable decision dated 3 March 2020, the Respondent affirmed the determination dated 22 January 2020. It is that reviewable decision that now comes before this Tribunal (the Tribunal) for merits review.
BACKGROUND
The Applicant was born in May 1972, is currently 49 years of age and was 47 in December 2019.
The Applicant commenced employment with the Respondent on 8 August 2002 as a Linehaul Truck Driver and in December 2019 had been employed by the Respondent for approximately 17 years.
The Applicant is a member of the Transport Workers Union of Australia (NSW Branch) (TWU), is an elected Union Delegate for drivers employed by the Respondent and has been a delegate for more than 15 years.
Around 2006 the Applicant was elected a Health & Safety Representative (HSR) for the purposes of the Work Health and Safety Act 2011 (Cth).
The Applicant’s duties include long distance truck driving approximately 10 to 15 hours each day, usually commencing about 4.00am six (6) days a week.
The Applicant’s role and functions as the Union Delegate and HSR are additional to his duties as a linehaul truck driver. The positions of Union Delegate and HSR are both recognised by the Respondent and in the relevant Enterprise Agreement.
In the period September 2018 to December 2019 a number of issues the Applicant describes as “safety and industrial” existed in the work place and were raised with him by work colleagues which the Applicant in turn raised with the Respondent. As set out in the Applicant’s Statement, there were three key matters that arose in the 12 months prior to 2 December 2019.[1] They included:
(a)the introduction of telematic technology in linehaul vehicles, which recorded drivers whilst driving. This was a matter of concern to a lot of drivers who feared that it involved an intrusion into their privacy;
(b)the removal of payments to linehaul drivers for work time that exceeded work outside their “trip rate” payment, in circumstances where Linfox had made such payments for at least the previous 12 years. This involved a custom and practice whereby Linfox would pay linehaul drivers an hourly rate for non-driving duties, such as waiting time, truck washing, pre and post trip inspections, restraining and unrestraining loads, re-setting trailer floors, weighing trailers and deviations. These payments had commenced in 2007 following an agreement struck between the Applicant, TWU delegate John Waltis and TWU official Paul Cook and Linfox managers Laurie D’Apice, Gaylynne Neill, Rick Xeri and Paul Caunt. The payments for non-driving hours were to ensure that drivers were reimbursed for time spent working and to ensure against fatigue by putting a price on time spent working that did not involve driving. Linfox stopped payments for non-driving hours on 25 August 2019. This resulted in a significant dip in income for all linehaul drivers; and
(c)the introduction of a new Driver Behaviour Policy, which the Applicant believed would be used as a tool to victimise workers and cause stress to them.
[1] Applicant’s statement dated 31 July 2020, paragraphs [9]-[14].
In July 2019, the Respondent terminated the employment of the Applicant’s TWU co-delegate, Mr John Waltis. The Applicant, as a result of the termination of Mr Waltis and his personal dealings with the Respondent, perceived the Respondent’s conduct as bullying and part of a general approach by the Respondent to harass/victimise him as the Union Delegate.
The Applicant received written warnings on 27 and 28 September 2018, for failing, when directed, to sign a toolbox attendance sheet. The Applicant declined to sign the attendance sheet as he understood it would amount to an acknowledgement of the accuracy of the details contained in the toolbox sheet.
On 9 September 2019 the Applicant attended on his General Practitioner Dr Tran and sought treatment in relation to, among other things, “stress at work as Union Delegate, work has been shacking (sic) people”.[2]
[2] Court Book, p.284.
On 24 September 2019, the Applicant received a written warning for failing to report to work for a part day when he had been released by the Respondent as a Union Delegate to attend a conference in the Fair Work Commission.
On 2 December 2019, the Applicant had a day of Respondent approved leave (Union Delegate Leave) and was not rostered to perform any work.
On the morning of 2 December 2019, the Applicant, in his capacity as the HSR, was present in an approved and advertised “Safety/TWU Meeting”[3] with other linehaul drivers employed by the Respondent.
[3] Attachment to Applicant’s Statement, EP 15.
During the meeting, the employees of the Respondent, some of whom were rostered to commence work between 5:15am and 5.30 am that morning, elected not to commence their rostered shift due to concerns about health and safety issues. The Applicant did not participate in the vote to delay commencing work and had no work to perform that day.
The Applicant’s involvement in the events of 2 December 2019 is more fully set out in the Decision of Commissioner McKenna dated 11 December 2020 (Eric Pickering v Linfox Australia Pty Ltd T/A Linfox [2020] FWC 6595)[4]. It is common ground between the parties that decision of the Fair Work Commission and its findings are not binding on this Tribunal.[5]
[4] Court Book, p. 190 – 215.
[5] Applicant’s Submissions dated 9 December 2021, [9].
During the interaction between representatives of the Respondent and the linehaul workers Mr Irvine and then Mr Turnbull, on behalf of the Respondent, directed the men (who were rostered to work) to commence work, failing which they would face disciplinary action and potentially termination.
On that afternoon the Applicant telephoned Mr Irvine and informed him he was unwell and would not be coming to work.
On 2 December 2019 Mr Turnbull, with the assistance of Mr Irvine and others, commenced an investigation in relation to the morning’s events. The investigation involved reviewing the personal files of only those drivers who were rostered to perform work at the time of the incident, together with the Applicant’s file. It is agreed between the parties that the Respondent was aware that the Applicant was on approved leave in his capacity as Union Delegate, and as such, had no work to perform at that time.
The Respondent subsequently issued warning letters only to those employees present on 2 December 2019 who were rostered to work. It appears that on the basis of his presence at the meeting, and his involvement as HSR, the Applicant was also issued a warning letter.
On 3 December 2019 Mr Turnbull decided the Applicant should be suspended pending further investigation and directed Mr Irvine to inform the Applicant that he was being suspended pending an investigation in relation to the incident on 2 December 2019.
On 6 December 2019 the Applicant consulted his General Practitioner Dr Kyaw Oo who recorded “[the Applicant was] here for a MC not copying (sic) well stress from work, not getting pay feeling tired and don’t feel safe to drive truck, using CPAP machine explained if ongoing/review”.[6]
[6] Court Book, p.283-284.
On 9 December 2019, the Applicant returned to work, having been on sick leave since 3 December 2019. At this time he was informed by Mr Irvine and Mr Selig that he was stood down for “past performance”. The Applicant asserts that this was the full extent of his interaction with Mr Irvine and Mr Selig,[7] while the Respondent says that Mr Irvine and Mr Selig further informed the Applicant that the suspension was in relation to the events of 2 December 2019. [8]
[7] Applicant’s Submissions dated 9 December 2021, [33].
[8] Respondent’s Submissions dated 10 January 2022, [38].
On 11 December 2019, the Applicant, accompanied by Mr Collins from the TWU, attended a meeting with the Respondent in relation to his suspension.
During the meeting the Applicant declined to participate in the interview until he had an opportunity to obtain legal advice and he was informed by Mr Selig for the Respondent that they would continue the process (decide the outcome of the investigation) with the information it had.[9]
[9] T-Documents, T-19; Statement of Adam Turnbull dated 31 July 2020 AT-68 and AT-69.
About 3.00pm on 11 December 2019 the Applicant attended his General Practitioner Dr Tran and was diagnosed as suffering with, and provided a medical certificate in respect of, an Adjustment Disorder with Anxiety.[10]
[10] T-Documents, T-20.
On 16 December 2019 the Applicant submitted a claim for compensation.[11]
[11] T-Documents, T-23.
On 20 and 23 March 2020 the Applicant took part in an interview conducted by the Respondent.
On 6 April 2020 the Applicant’s employment was terminated.
On 1 January 2021 the Applicant was reinstated by the Respondent in accordance with the Decision of Commissioner McKenna of the FWC.
ISSUE
It is agreed between the parties that the Applicant suffered from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”, which satisfies the definition of ‘ailment’ as defined in section 4 of the SRC Act.
The key issues that must be determined by the Tribunal are therefore as follows:
(a)Whether the Applicant’s ailment was ‘contributed to, to a significant degree,’ by his employment with the Respondent, such that he has a ‘disease’ under s 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in s 5A(1)(a);
(b)Whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a ‘reasonable manner’ with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ in s 5A(1).
(c)Does s 14(3) of the SRC Act operate such that compensation is not payable as the injury was “caused by the serious and wilful misconduct of the Applicant” being the alleged industrial action on 2 December 2019.
LEGAL FRAMEWORK
The right to compensation for an employee under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) is conferred by section 14(1) which provides that the Respondent is:
liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A of the SRC Act:
(1)…
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment, that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer of benefit, or to retain a benefit, in connection with his or her employment.
A “disease” is defined in s 5B of the SRC Act to mean, so far as this case is concerned:
(1) …
(a) an ailment suffered by an employee; or
That was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matter that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
An “ailment” is defined in s 4 of the Act to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
EVIDENCE
The Applicant
Mr Pickering affirmed his statement dated 31 July 2020.[12] He said that he was currently employed by the Respondent after being reinstated by the Fairwork Commission by way of their decision of 11 December 2020. That decision arose out of proceedings conducted on 13 and 20 November 2020 in that body relating to the Respondent’s dismissal of the Applicant on 6 April 2020. The Applicant said that from 1 January 2021 he had returned to his job as a long-distance driver. He worked 5-6 days per week, starting at 4:00AM and usually finishing around 3:00PM. He normally worked 12-13 hours per day. He also had other roles as a union delegate of the Transport Workers Union (TWU), and workplace health and safety representative (HSR). These additional roles had been taken on voluntarily.
[12] Applicant’s statement dated 31 July 2020.
He said that he had held the role of Union Delegate since about 2006, and in that role his job was to protect employee rights. At the time of his suspension, the Applicant said that he felt unwell, highly stressed, nervous, anxious and was not sleeping. He said that this was directly related to management threats at his workplace.
The Applicant recalled that he had notified the Respondent that he was sick on the afternoon of 2 December 2019. He said he felt sick on 3 December but did not go to the doctor until 6 December when he went to his GP and saw Dr Oo in relation to stress. He told Dr Ong that he was stressed, under pressure, not sleeping, and that he felt he should not be in control of a heavy vehicle. He was given a medical certificate and returned to work on 9 December when he was stood down with pay and told that this was related to his “past performance”. After the consultation with Dr Oo, the Applicant was referred to a specialist urologist, but was not referred to specialist psychologist/psychiatrist in relation to his stress.
On 11 December 2019, the Applicant had a meeting at the Respondent’s head office. He also attended his GP clinic on that day where he saw Dr Tran.[13] He described feeling stressed and anxious, and said that he had been feeling like this for some weeks. He said at that point his mental health had not been good for about a year, but that things got really bad in September 2019 and he took some time off work.
[13] Court Book, p.283.
In the Applicant’s view, being stood down in circumstances where he was unaware of the reason for that decision was “the straw that broke the camel’s back”. The clinical notes of the Applicant’s GP, Dr Tran, dated 9 September 2019, provide that the Applicant attended and sought treatment in relation to “stress at work as Union Delegate, work has been shacking (sic) people”.[14]
[14] Court Book, p.284.
The Applicant felt that there was a combination of factors, including his long hours as a driver and his additional commitments, which contributed to his feelings of stress.
The Applicant made a workers compensation claim on 16 December 2019.[15]
[15] T-Documents, T-23.
He was asked by the Respondent on 18 December 2019 to provide additional information which he said had been provided, although the document had not been prepared by him.
The Applicant was questioned extensively about the events of 2 December 2019, which he said related to a health and safety issue in the workplace, whereby changes to the drivers’ income was causing considerable stress to the drivers. It was noted that this issue is currently before the Fairwork Commission. The Applicant said a work stoppage occurred after a safety meeting. He said he had sought approval from management for the meeting to take place to discuss the stress being placed on the workers as a result of removal of certain payments formally made to long distance drivers. He was told by management that the meeting was okay to proceed if there was no interruption to work. However, the meeting had extended beyond working hours.
The Applicant said the men had returned to work when management eventually agreed to negotiate the issues in dispute. He said that he saw his role as being to mediate between the drivers and the management of the Linfox. The Applicant said that the reason the employees did not return to work on 2 December following the expiry of the allocated time for the meeting was that they did not feel safe and did not want to return to work. There was a vote on the issue at the meeting, but the Applicant said that he did not vote. This was verified by the record of meeting of 20 March 2020 attached to the Applicant’s statement.[16]
[16] Attachment to the Applicant’s statement , EP – 17.
The Applicant said that he was very stressed at the time of the interview with the Respondent on 20 and 23 March 2020. He understood that his termination was because of his role in the meeting on 2 December 2019, and previous warning letters he had been issued by the Respondent.
The Applicant received a number of warnings from the Respondent, the first on 27 September 2018 and a further warning on 28 September 2018, which related to non-compliance with a direction from the Respondent. The Applicant said there were a number of previous meetings regarding tampering with cameras installed by the Respondent in the company trucks, in relation to which the drivers had concerns. The Applicant said he kept asking for meetings but got no response from management. Eventually there was a “toolbox” meeting between the drivers and management, but the Applicant and others refused to sign the attendance sheet on the basis that they thought that would signify agreement and because they were not happy with the response of the Respondent.
The Applicant saw the warnings he received as “trivial” and believed he was getting special attention at the time. That is, that he was being targeted by the Respondent.
Dr Wasim Shaikh
Dr Shaikh affirmed the contents of his reports dated 15 January 2020 and 6 October 2020.
Dr Shaikh saw the Applicant on 11 January 2020 and prepared a supplementary report in response to the assessment of Dr Ash Takyar.
Dr Shaikh said that the events of 2 December 2019 had led to the Applicant requiring psychiatric treatment. With hindsight, some of those symptoms may have been present earlier but Dr Shaikh was of the opinion that those prior stressors were not sufficient to cause a psychiatric disorder.
In Dr Shaikh’s view, everyone suffers stressors from time to time but it is the presence of impaired functioning at a sufficient level to create functional impairment that is necessary for a positive diagnosis. Because of the complexities involved, Dr Shaikh felt that GP’s were not quick to diagnose psychiatric illness.
Dr Shaikh said that the Applicant discussed issues that had arisen in the months before December 2019 and that although he had stressors, they had not led to any impairment.
The Applicant’s high alcohol consumption had not been previously addressed and Dr Shaikh thought that it could amount to alcohol abuse disorder which would complicate treatment.
In his supplementary report, the trigger for diagnosis in the case of the Applicant was the events of early December 2019, leading to diagnosis on 11 December.[17] Dr Shaikh was also taken to page 5, item 2 of his supplementary report, where he refers to Dr Takyar’s report. Dr Shaikh felt that Dr Takyar had been too heavily reliant on the Applicant’s reporting and had not properly weighed the other available evidence. He noted also that Dr Takyar himself had said that the evidence was vague and that the Applicant’s medical history was difficult to follow. Dr Takyar had not diagnosed alcohol abuse disorder. Dr Shaikh said that if the evidence provided by the Applicant had been incorrect, then that would have had an effect on his report, because his opinion depends on valid sources of information including medical history.
[17] Supplementary Report of Dr Shaikh dated 6 October 2020, p.4.
When questioned about the empirical evidence that he used in compiling his report, Dr Shaikh said that it included reports from the Applicant’s GP. He also said that the absence of treatment did not mean an absence of a psychological disorder. In particular, he said that men were often reluctant to seek treatment and may use alcohol to deal with their symptoms. Dr Shaikh thought the Applicant was doing his best during the time period in question and said that was reflected in the notes from his GP. Dr Shaikh provided the example that in September 2019 the Applicant was reporting stress at work to his GP.
Dr Shaikh said that symptomatology can be critically significant. These include issues such as difficulty in sleeping, tiredness and feelings of unhappiness.
When questioned as to whether the events of 2 December 2019 were the tipping point for the Applicant, Dr Shaikh said that they were not. The incident led to progression of the Applicant’s symptoms to the later development of the psychiatric illness.
Dr Shaikh noted that from early September to early December 2019 there was no record in any of the GP’s notes of the Applicant experiencing stressors or psychiatric issues.
On 6 December 2019, the Applicant went to his GP to get a medical certificate, and said that he was not sleeping well, felt tired and did not feel safe at that time. In Dr Shaikh’s view was that 6 December 2019 was “the starting point” for the Applicant’s disorder. Dr Shaikh said that after 2 December 2019, the Applicant started to develop symptoms. The Applicant had attended his GP and described his symptoms and the condition developed from there. Although by 6 December 2019, Dr Shaikh thought that it was too early for the Applicant’s psychiatric condition to be diagnosed and that it would generally be expected to take a longer period for it to manifest.
When pressed, Dr Shaikh reiterated that in his view, the Applicant’s psychiatric condition started to develop after 2 December 2019. He said that by 6 December 2019 it did not yet meet the criteria for diagnosis of a psychiatric disorder, but by 10-11 December 2019 the symptoms had reached a level of clinical severity.
When questioned specifically about Dr Takyar’s opinion that the Applicant’s disorder was developing “some weeks” before December 2019, Dr Shaikh said that he disagreed.
Mr Adam Turnbull
Counsel for the Applicant raised a number of objections in relation to various examples of hearsay evidence in Mr Turnbull’s statement. I have set out later in this decision the comments I made in relation to those concerns.
Mr Turnbull affirmed his statement together with attachments, which he had been unable to sign due to technical problems and the Covid-19 restrictions.
Mr Turnbull had appeared as a witness for the Respondent at the Fairwork proceedings. He said that on 26 November 2019, the Applicant had approached him in relation to a health and safety issue.
Mr Turnbull set out the events of 2 December 2019 in paragraphs 109-133 of his statement.[18]
[18] Statement of Adam Turnbull, dated 31 July 2020.
Mr Turnbull said that he arrived at work at approximately 7:45AM, so he was not directly present for the meeting, but relied on what he was told by Mr Irvine. He said he told Mr Irvine to direct the men to go back to work.
Mr Turnbull said that the Applicant had been terminated for a number of reasons, not just engaging in unauthorised industrial action. Mr Turnbull accepted that the Applicant had not engaged in any unlawful industrial action because he was not required to work on 2 December 2019.
Mr Turnbull said that the Applicant had been stood down on 11 December 2019 and was told that it was due to past performance.
Mr Turnbull’s attention was drawn to his email of 11 December 2019 sent to Mr Jones and others, at which time the Applicant was still saying that he did not know why he had been stood down. Mr Turnbull said that it was Mr Irvine who had actually stood the Applicant down. He had been advised by his human resources team throughout, including Mr Irvine and others from head office.
Mr Turnbull discussed the toolbox meeting in September 2018, which had been convened to discuss health and safety issues in the workplace. The Applicant did not initial the toolbox attendance sheet because he thought that would indicate agreement to the changes proposed by management, although as far as the Respondent was concerned, it was only to indicate attendance at the meeting.
Mr Turnbull was asked about the meeting with the Applicant on 20 and 23 March 2020 which the Applicant attended with Mr Collins as his support person. He said that the Applicant did not raise any issues about bullying and harassment at the meeting, and that if he had done so, it would have been investigated. Mr Turnbull did recall comments about the drivers being very stressed.
From 2 December 2019 until his termination, the Applicant was not at work, but Mr Turnbull said that he was not his direct manager. He did not know whether the Applicant had raised issues of bullying and harassment in September 2019, and said that the Applicant had not told him that he felt he was being targeted by the Respondent.
Under questioning by the Applicant’s counsel, Mr Turnbull said that the Applicant was not “a thorn in the side of Respondent” and when asked whether the Respondent found the Applicant to be a problem, Mr Turnbull said that it would be necessary to get that information from other people within the organisation. In particular, Mr Turnbull referred to “pulling” the Applicant’s file in relation to the events of 2 December 2019 because he was on paid leave from Linfox for that day.
Mr Warwick Irvine
Mr Irvine affirmed his statement dated 26 July 2021 and the attachment to it titled ‘Eric Tabled Issues’. Mr Irvine said that the Applicant reported directly to him. He said that from 1 July 2018 to December 2019, the Applicant had not raised with him any complaints about bullying and harassment.
Mr Irvine was questioned about the preparation of his statement, which he agreed had been prepared in conjunction with the Respondent’s solicitors.
When questioned about the events of 2 December 2019, Mr Irvine said that he had addressed the employees and told them what he had been advised to say, by Mr Turnbull and by Mr Blake Byrnes of Linfox, that they needed to return to work and to stop their unlawful action.
He said that he had asked the men to leave the premises if they were not returning to work, at which stage the men moved to the carpark. He said he had not spoken with the Applicant directly.
Mr Irvine said that his remarks in relation to returning to work had not been addressed to the Applicant in particular, but rather had been addressed to all of the men. The Applicant had however responded to Mr Irvine and said that the men would not return to work until their safety concerns had been addressed. Mr Irvine said that the Applicant was well-known to him, as was his co-delegate Mr Walters, who had been terminated by the Respondent.
Mr Michael Collins
Mr Collins affirmed his statement dated 10 July 2020. Mr Collins said he was an organiser for the Transport Workers Union (TWU) and that he knows the Applicant through his employment. He has known him for 5 or 6 years, that is, for the period Mr Collins has been an organiser for the TWU. The Applicant has been a delegate for about 10 years.
Mr Collins said he regarded the Applicant as a very good delegate who tries hard to deal with issues himself and genuinely cared about other people. He had attended yard meetings with the Applicant.
He was aware of the concerns about the roll out of inboard cameras and the issues with signing the attendance sheet for a toolbox meeting in September 2018. Mr Collins agreed that although the Applicant had been given two warnings, the Union did not take any action. According to Mr Collins’ written statement, the dispute over the toolbox attendance sheet had become “deprioritised” due to a number of more pressing concerns, including “the termination of Mr Waltis, the ongoing safety concerns and the dispute regarding some payments to linehaul drivers”.[19] Although Mr Collins noted that the TWU still intended to dispute the warning letters issued to Mr Waltis and Mr Pickering, with the TWU legal team preparing a draft dispute notification to file in the Fair Work Commission.[20]
[19] Statement of Michael Collins dated 10 July 2020, para 25.
[20] Statement of Michael Collins dated 10 July 2020, para 25.
When questioned about the events of 2 December 2019, Mr Collins said that the work stoppage occurred as a result of concerns about genuine occupational health and safety issues. He arrived at the Chullora site around 6:15AM, where the issues being discussed were reductions in the wages of the drivers and OH&S issues.
He said there was no discussion of the issues by the Respondent and that the men were simply ordered to return to work. They refused to do so and took a collective vote. He believed that the Applicant had spoken to Mr d’Apice on the telephone about the matter. Mr Collins said the Applicant did not vote at the meeting. Mr Collins said that he had known the Applicant for many years and that he had been “stressed out” around the time of the meeting.
Dr Ashish Takyar
Dr Takyar affirmed his report of 26 June 2020 and his supplementary report dated 10 November 2020.
Dr Takyar outlined his various qualifications, including his work as a medical assessor with the Personal Injury Commission/Workers’ Compensation Commission since 2015.
Under examination in chief, Dr Takyar confirmed his diagnosis of the Applicant with “mixed anxiety and depressed mood”. When asked whether he could provide any further information as to when the Applicant began clinically suffering with the diagnosed injury, Dr Takyar opined that it was difficult to get a clear history, but the “difficulties began in September 2018”. Based on a review of the clinical notes of the Applicant’s GP, Dr Takyar said that the Applicant’s symptoms had begun “some weeks” before 11 December 2019, however he could not define what “some weeks” meant more precisely.
Dr Takyar’s supplementary report of 10 November 2020 reviewed the reports of Dr Shaikh. Dr Takyar said that his diagnosis of an “adjustment disorder with mixed anxiety and depressed mood” was consistent with Dr Shaikh’s reports.
Dr Takyar agreed that the Applicant may have been suffering with the condition on 6 December 2019 and that events of 2 December 2019 and his dealings with the Respondent may have “worn him down”.
Dr Takyar said that his diagnosis was based on his interview and the clinical notes that he had reviewed. He said that the GP clinical notes he had consulted dated back to about December 2019.
Dr Takyar was taken to page 5 of his report dated 26 June 2020, where he had noted that the “GP records appeared to describe psychiatric symptoms from around December 2019”.[21] Dr Takyar accepted that what he was saying to the Tribunal was different to what was contained in his report and that in preparing that report he had relied on the medical history given to him and a review of the documentation available at that time.
[21] Court Book, p. 244.
In the September 2018 report, the Applicant referred to background issues and the fact that there was no suitable work for him. He said that he had phoned the company in order to get work but was told no suitable work was available.
Dr Takyar said that he had taken into account the events of the 2 December 2019 meeting and other material which he had reviewed in coming to his conclusion. He said his opinion would not change simply if different events had occurred on 2 December and that his opinion was not based just on that one event, but also on the other information reviewed by him.
Dr Takyar felt that the ongoing industrial and safety issues at the Applicant’s workplace may have been background factors prior to 2 December 2019, leading to the development of the Applicant’s psychiatric condition. However, even if what he was told by the Applicant about the 2 December events was untrue, Dr Takyar said there may have been earlier episodes which led to the Applicant’s feelings of depression and anxiety. He reiterated it was difficult to get a complete history.
Dr Takyar said that he could not definitively say when the Applicant’s symptoms had commenced but said that the examination of his mental state is objective, and that the Applicant presented to him as very stressed. He said that the weight placed upon the clinical notes from the Applicant’s GP can vary, but that generally clinical notes can give the gist of what is happening. He said the GP notes were very clear in stating that the Applicant had been suffering from symptoms some weeks prior to December 2019.
Dr Takyar said that he felt that on the balance of probabilities, the Applicant’s injury manifested through his perceptions of being bullied and harassed in his workplace, at least as at 6 December 2020.
DISCUSSION
Preliminary Issues
A number of objections were raised at the hearing by counsel for both sides regarding the admissibility of the evidence of a number of witnesses, including Mr Collins, Mr Turnbull and Mr Irvine. Concerns were raised that various witness statements before the Tribunal contained, amongst other things, hearsay and opinion evidence. Rather than spend minute time on argument, in a jurisdiction where technically the rules of evidence do not apply, I considered that the most appropriate course was to admit all of the evidence and to deal with it as a matter of weight. In this regard, I note the following exchange with counsel that took place at the hearing, and the comments I made regarding admissibility:
A’s counsel: I have some objections, Deputy President, in relation to the statement.
…
R’s Counsel: I’m just wondering, to save everybody the time and pain, whether the statement can be simply treated on the basis, as I had suggested in relation to Mr Collins, that is that it doesn’t prove the fact of the issue, and to the extent that it expresses Mr Irvine’s opinion about certain things, it can be no higher than his opinion.
Tribunal: That is my position. I was prepared to hear [A’s counsel] on it, but generally my view is, I have to say, very much the position I adopted when sitting in family law that given the rules of evidence don’t apply, in the end it is all about weight (emphasis added)[22]
Does the Applicant suffer from an ailment as defined in section 4 of the SRC Act?
[22] Transcript of Proceedings (Thursday 29 July 2021), p.100
As noted above, the parties were in agreement that the Applicant suffers from an ‘ailment’ as defined by s 4 of the SRC Act. The parties agree, and the Tribunal is satisfied on the basis of the medical evidence, in particular, the evidence of Dr Shaikh and Dr Takyar, that the Applicant suffered from “adjustment disorder with mixed anxiety and depressed mood” (the injury).
Whether the Applicant’s ailment was contributed to, to a significant degree, by his employment with the Respondent, such that he has a ‘disease’ under s 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in s 5A(1)(a)?
Turning to the next issue, the Tribunal must examine whether, to the extent the Applicant suffered from a psychiatric condition, it was contributed to, ‘to a significant degree’, by his employment with Respondent.
In relation to the consideration of this issue, I note the comments of Katzmann J in Comcare v Power [2015] FCA 1502 at 93-94, which provide guidance on the “significant degree” test:
…there is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial…
Moreover, the current test of contribution also requires an evaluative exercise to be undertaken.
It is apparent from the evidence and the submissions of the parties that the Respondent has accepted that the Applicant’s employment contributed ‘to a significant degree’ to his injury.
In his evidence, Dr Shaikh, identified the events of 2 December 2019 as being the trigger for the onset of the Applicant’s symptoms, but said that those symptoms did not reach a clinically significant severity until 10 or 11 December 2019.
There was evidence from the notes of the Applicant’s GP, and from the Applicant’s own testimony, that he was troubled by a range of other events in his life, at least from September 2019 onwards. Applying the test set out in Comcare v Power, the medical evidence is clear, particularly that of Dr Shaikh and the Applicant’s GP Dr Oo as set out above, that at the very least, the events of 2 December, 9 December and 11 December 2019 contributed to ‘a significant degree’ to the Applicant suffering from the injury.
Accordingly, the Tribunal is satisfied that the Applicant’s Adjustment Disorder with Mixed Anxiety and Depressed Mood was contributed to, to a significant degree, by his employment with the Respondent such that he has a disease under s 5B(1) of the SRC Act, which therefore meets the definition of injury under s 5A(1)(a) of the SRC Act.
Whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a ‘reasonable manner’ with respect to the Applicant’s employment, such that it is excluded from the definition of injury under s 5A(1)(a) of the SRC Act?
Under s 5A(1) of the SRC Act, an ‘injury’ does not include a “disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. Pursuant to s 5A(2) of the SRC Act, ‘reasonable administrative action’ includes:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, or reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The Respondent contends that the Applicant’s injury was the result of “reasonable administrative action” taken in a reasonable manner in respect of his employment and is therefore excluded from the definition of “injury” under the Act.
As set out by the Respondent, the application of this exclusion requires three factual findings to be made:
(a)that the Applicant’s injury manifested as a result of the administrative action taken by the Respondent on 9 and 11 December 2019;
(b)the action taken by the employees of the Respondent was “reasonable administrative action”; and
(c)the “reasonable administrative action” was carried out “in a reasonable manner”.
Each of those issues will now be considered in turn.
(a) Whether the Applicant’s injury manifested as a result of the administrative action taken by the Respondent on 9 and 11 December 2019?
It is accepted between the parties that the suspension of the Applicant’s employment on 9 December 2019, as well as the interview conducted at the Respondent’s head office on 11 December 2019 amounted to “administrative action taken in respect of his employment” under s 5A(2)(c) of the SRC Act.
However, the Tribunal must determine whether the injury manifested “as a result” of that administrative action. In Comcare v Martin [2016] HCA 43, the High Court clarified the causal connection required in s 5A(1)(a), holding that it must be determined that the employee would not have suffered a disease if the administrative action had not been taken.
Notably, in Lim v Comcare [2017] FCAFC 64 at 38, the Full Court of the Federal Court applying Martin found that:
…what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined in s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
What must be shown is that, but for the “administrative action”, the employee would not have suffered the disease as defined by s 5B(1). Having regard to the test in Martin as applied in Lim, it is relevant for the Tribunal make a finding, on the basis of the evidence, as to the date of clinical onset of the Applicant’s injury.
The Applicant maintains that by no later than 6 December 2019, he satisfied the diagnostic and evaluative thresholds for diagnosis of his condition. The Respondent’s position is that the Applicant’s injury reached a “clinically significant severity on or about 10 or 11 December” 2019. In clinical notes from a consultation on 9 September 2019, the Applicant’s GP, Dr Tran, recorded that the Applicant had been experiencing “stress at work as union delegate, work has been shacking people”.[23] Following this, on Friday 6 December 2019, the notes of Dr Kyaw (Joe) Oo record “stress from work, not getting pay” and “feeling tired and don’t feel safe to drive truck”. The Applicant was subsequently referred to a specialist.[24] Finally, on 11 December 2019, Dr Tran notes that the Applicant presented as “anxious and low mood”, and reported feeling “very stress, anxious, worrying a lot, unable to relax, feeling panicking”.[25] The certificate of capacity dated 11 December 2019 completed by Dr Tran, diagnoses the Applicant with “adjust (sic) disorder with anxiety”.[26]
[23] Court Book, p.284.
[24] Court Book, p.283.
[25] Court Book, p.283.
[26] T-Documents, T-20, page 66.
The conclusion of Dr Tran that the Applicant’s injury developed around 11 December 2019 is supported by the reports of Dr Shaikh, dated 15 January 2020 and 6 October 2020. In the report of 15 January 2020, Dr Shaikh opined that the Applicant’s symptoms “reached clinical significance in December 2019, in response to fear of disciplinary action, and potential loss of employment”.[27] . Similarly, in oral evidence before the Tribunal, Dr Shaikh reiterated that “by the 10th or 11th [of December 2019], or subsequent to that…is when the Applicant’s symptoms reached a clinically significant severity. If the events…of around the 9th or 10th…or the suspension would not have occurred…those symptoms may not have reached a clinically significant severity”.[28]
[27] T-Documents, T-37, page 159.
[28] Transcript, p.195, LL45 – p.196, LL3.
In contrast, Dr Takyar’s opinion as to the onset of injury was less clear. Dr Takyar’s report of 26 June 2020 assessed the date of the Applicant’s injury as September 2018.[29] However, under cross-examination, Dr Takyar said that it was difficult to get a clear history from the Applicant and he could not provide an exact timeline around when the Applicant’s symptoms commenced. His understanding was that the Applicant’s “symptoms began some weeks before” 11 December 2019, but he could not define “some weeks” any more precisely.
[29] Court Book, p.248.
The Respondent sought to question the evidence of Dr Takyar, in particular, the fact that at the hearing Dr Takyar appeared to change his opinion in relation to the date of onset of the injury.
Dr Takyar explained that the change in his opinion was due to a further review of the clinical notes of the Applicant’s GP, Dr Tran. He pointed out that the entry dated 11 December 2019 in the clinical notes of Dr Tran stated that the Applicant had been feeling stressed for a “few weeks”, rather than saying that the symptoms began in December. Dr Takyar said that at the point of 2 December 2019 there may already have been changes in the Applicant’s mental state commencing, and that those symptoms continued to evolve.[30]
[30] Transcript p.-63, LL-25
It was also generally agreed and noted in particular by Dr Shaikh that it is difficult to identify a precise date on which a psychological injury manifests. Rather, there was evidence given that such an injury would develop over time before reaching the relevant threshold required for clinical diagnosis. Certainly, Dr Shaikh and Dr Takyar disagreed as to when the threshold was reached. In my opinion, the evidence of Dr Shaikh is to be preferred. He was clear and consistent in his evidence, as opposed to Dr Takyar, who was less consistent.
In this regard, I note the oral evidence of Dr Shaikh at the hearing as follows:
…you don’t have a date where you say from this day onwards [the Applicant is] suffering symptoms outside the boundaries of normal mental functioning. I believe after the 2nd he started to develop symptoms, and then they reach a severity that he feels he needed to attend at his GP by the 6th. He goes to his GP and he describes his symptoms as you’ve discussed, those symptoms then quite likely increase in subsequent days. And in those days is when he meets the criteria for a psychiatric condition being present…[31]
[31] Transcript p.192, LL-5..
While I note the comments of Dr Shaikh that it is generally not possible to specify an exact day for the onset of a psychiatric condition, ultimately, the weight of the evidence supports a conclusion that the injury had reached clinical significance by 11 December 2019. This is consistent with the contemporaneous certificate of capacity of Dr Tran, the Applicant’s General Practitioner, of the same date, which diagnosed the Applicant with an “adjust (sic) disorder with mixed anxiety”.[32]
[32] Court Book, p. 248.
I further note the opinion of Dr Shaikh that “if the events of around 9th or 10th of December did not occur, those symptoms may not have reached a clinically significant severity”,[33] despite earlier reports from the Applicant that he had been feeling stressed. As was pointed out by Dr Shaikh at the hearing, stress itself does not amount to a disorder. That conclusion is consistent with the Federal Court authority in Comcare v Mooi [1996] FCA 1587, which held that a disorder goes beyond a normal human reaction, such that it falls “outside the boundaries of normal mental functioning and behaviour”.[34]
[33] Transcript p.195, LL45 – p. 196 LL3.
[34] Comcare v Mooi [1996] FCA 1587, Drummond J at [12].
In light of all of the relevant factors, particularly Dr Shaikh’s opinion as to the date of onset of the injury, the Applicant’s evidence that the 9 December suspension was the “straw that broke the camel’s back”, and the certificate of capacity of Dr Tran dated 11 December diagnosing the Applicant with the injury, I am of the opinion that the threshold of causation articulated in Martin and Lim has been met.
On this basis, I am satisfied that the Applicant’s injury resulted from the administrative action taken by the Respondent on 9 December and 11 December 2019.
(b) Whether the action taken by the employees of the Respondent was “reasonable administrative action”?
In considering this question, it is necessary to look at the circumstances surrounding the events of 9 and 11 December 2019.
In this regard, I note that the Applicant took sick leave from 3 December to 9 December 2019. He was called in for an interview with Mr Irvine and Mr Selig (who was not called to give evidence to the Tribunal). The Applicant says in his statement as follows:
I was unwell as of 3 December 2019 and advised Linfox that I would be unable to work for the rest of that week.
When I attended for work on 9 December, I was stood down with pay.
I was informed verbally of my stand down by Warwick Irvine and Greg Selig, who is a Linfox Workplace Relations Advisor, and was not provided with any formal indication as to why I was suspended. When asked why I was being stood down, I was told by them it was due to my “past performance”.[35]
[35] Statement of Eric Pickering, paragraphs 64-66.
Under cross-examination, the Applicant stated as follows:
Q: Just for reference. But I don’t intend to go through all of it. And just before I go to that – I think we’ve traversed this little bit, but just to get a timeline more than anything – On 3 December you were off sick up until 9 December – is that correct Mr Pickering?
A: I believe so, yes.
Q: And you came back on 9 December and you were stood down with pay?
A: Yes.
Q: Pending an investigation into the events of 2 December 2019, that’s correct?
A: At the time I was told it was for past performances.
Q: But isn’t what you were told is that it was in relation to past performances and your conduct in relation to 2 December stoppage. That’s correct, isn’t it?
A: To the best of my recollection was I asked why I was being stood down and the only response I got was ‘for past performances’[36]
[36] Transcript p.41, L35 to P-42, L2.
Mr Irvine, who gave both a written statement and oral evidence to the Tribunal, did not give any evidence as to what occurred on 9 December 2019. Mr Selig of the Respondent was not called to give evidence, although he was present when the Applicant was stood down on 9 December 2019. However, in his email of 11 December 2019,[37] he details his conversation with the Applicant on 11 December 2019 as follows:
EP: “I don’t even know why I have been stood down. This is a stitch up”.
GS: “Eric the reason you have been stood down is due to your actions last Monday. The other employees have received disciplinary actions because of their actions. Because of your previous employment record the company is considering what will be a suitable outcome in relation to you”
[37] T-19, p.62.
I accept the Applicant’s evidence that on 9 December 2019, he was not informed of the reason he was being stood down. It is also clear from the evidence of the Applicant and Mr Irvine that there was no attempt to deal with the Applicant’s prior allegations of bullying and harassment. Mr Turnbull, who was Mr Irvine’s superior said that he had never been informed about them. I see this as relevant because the Applicant was called to a meeting in circumstances where he was unwell, may previously have suffered from bullying and harassment at the hands of the Respondent, but was never given an opportunity to properly prepare for the meeting of 11 December 2019, which was clearly of great significance to him.
Again, the Applicant was not given any opportunity to prepare for the meeting of 11 December 2019 when he was informed that his suspension related to an investigation surrounding the events of 2 December 2019. This does not, in my opinion, meet the threshold of “reasonable administrative action” for the purpose of the SRC Act. Rather, this suggests that the Applicant was at best, not afforded an opportunity to prepare for the meeting, or at worst, the subject of an ambush. He had been on sick leave since 3 December 2019 because of what had occurred on 2 December 2019. The medical evidence shows he was anxious and stressed at the time. In other words, he was vulnerable at the time he was called in to the meeting on 11 December 2019 and the Respondent would have been aware of this. The Respondent would also have known of the importance of the meeting to the Applicant.
To my mind, this amounts to more than the Respondent simply handling the matter in a clumsy or unprofessional manner. In my view it was unfair and was not “reasonable” administrative action. In short, all of the cards were in the Respondent’s hands.
The failure of the Respondent to advise the Applicant of the reasons for his suspension on 9 December 2019 meant that he was unable to prepare adequately for the meeting of 11 December 2019, or to seek legal advice prior to that meeting. The suspension clearly came “out of the blue”. On 11 December the Applicant was presented with a list of questions in relation to which Mr Selig informed him that answers were required that day. Although he was told he could seek legal advice, the Respondent must have known this would be difficult within the stated timeframe, particularly given the extensive list of questions put to the Applicant. In my view this reinforces the unreasonableness of the Respondent’s failure to give the Applicant a full and proper outline of the reasons for his suspension and to allow him to prepare for the meeting of 11 December.
I also note that any prior warnings the Applicant had received in relation to his conduct could not be characterised as serious. It is also relevant that at the time of the meeting of 2 December 2019, the Applicant was on leave as was acknowledged by Mr Irvine in his evidence. I do not accept the Respondent’s argument that because the Applicant’s leave on 2 December 2019 related to his duties as a Union delegate, it was somehow different to any other form of leave. In any event, there was no evidence that any of the men who had been involved in the stop-work meeting on 2 December 2019 had been disciplined in any way by the Respondent. In other words, the Applicant appears to have been singled out in a way that can only be seen as unfair. This would appear to support the Applicant’s belief that he was in fact being targeted because of his role as union delegate.
On the basis of the evidence, I am satisfied that the administrative action taken by the Respondent on 9 December 2019 and 11 December 2019 was not “reasonable”.
(c) Whether the reasonable administrative action was carried out in a reasonable manner?
Having found that the administrative action taken by the Respondent was not reasonable, it is not strictly necessary for the Tribunal to determine whether the administrative action was carried out in a reasonable manner. However, it is difficult in the current case to separate the one from the other.
In my opinion, even if the administrative action taken by the Respondent could be characterised as reasonable, it was not carried out in a reasonable manner. In this regard, the discussion above is relevant. The behaviour of the Respondent in relation to the suspension on 9 December and meeting of 11 December is critical to both issues.
Any consideration as to whether the administrative action was taken in a reasonable manner is to be determined against the ordinary standards of reasonable employers in all of the circumstances of the case.[38]
[38] Comcare v Stewart [2019] FCA 365 per Robertson J at 70.
I am also guided by the decision of the Federal Court in Comcare v Martinez (No 2) [2013] FCA 439 at 83 (citing Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056), where the Court held that whether an action was carried out in a reasonable manner:
… will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
In summary, the Applicant was stood down on 9 December 2019 after returning from sick leave, but was not given any reasons for this action. He was also told to attend a meeting on 11 December for the purposes of conducting an “interview” at the Respondent’s headquarters. He was given no indication as to the matters to be canvassed at the meeting. He had limited opportunity to prepare for the meeting, which was important to his future with the company, nor in my view, any reasonable opportunity to answer in a considered way with proper legal advice, the questions put to him. The medical evidence is plain that the way in which the administrative action was undertaken had a very deleterious effect on the Applicant’s health.
Overall, the actions of the Respondent do not, in my view, amount to reasonable administrative action taken in a reasonable manner.
Does s.14(3) of the SRC Act operate to exclude the Applicant’s claim on the basis that he was engaged in serious and wilful misconduct?
Having found that the administrative action taken by the Respondent was not reasonable and was not carried out in a reasonable manner, I must now deal with the Respondent’s claim that the Applicant’s claim is otherwise excluded under s 14(3) of the SRC Act on the basis that he was engaged in serious and wilful misconduct.
Relevantly, s 14(3) provides as follows:
…
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
The burden of satisfying the Tribunal that s 14(3) applies rests with the Respondent.[39]
[39] Re Robertson and CSR Shipping [2001] AATA 325 (referring to Hill J in Casarotto and Australian Postal Commission [1989] FCA 116).
The Respondent submits that the Applicant “was engaging in industrial action and that amounts to serious wilful (sic) misconduct. The serious and wilful misconduct manifested by organising and engaging in an industrial action”.[40]
[40] Respondent’s Written Submissions, paragraph 114.
For misconduct to be “serious”, it must significantly increase the likelihood of serious injury and give rise to an immediate risk.[41] Moreover, the meaning of “serious and wilful misconduct” in the context of s 14(3) was considered by Dr. Kendall, Deputy President in McKenzie and K & S Freighters Pty Ltd [2016] AATA 271 at [79], who observed as follows:
It is clear from the jurisprudence in relation to section 14(3) that the term “serious and wilful misconduct” is interpreted as amounting to conduct that is very serious indeed. In effect, for [the Applicant] to be found to have engaged in serious and wilful misconduct [the Applicant] actions would need to evidence an almost complete disregard for the safety of others with a high risk of probable injury to [the Applicant].
[41] Inco Ships Pty Ltd v Hardman [2007] FCA 1138 at [81] per Mansfield J referring to the decision of Green CJ in Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785.
Applying these tests, there was no evidence before the Tribunal of any serious or wilful misconduct on the part of the Applicant, either in his capacity as a driver or as Union delegate and HSR representative.
Insofar as the meeting of 2 December 2019 is relevant, the Applicant attended that meeting as a Union Delegate, he was not rostered for work at the time, and there is no evidence of any misconduct on his part at or in connection with the meeting. He had sought permission from management to hold the meeting, and this permission was granted, albeit for a limited period of time before drivers were rostered to commence work. The meeting did not conclude within the allotted time, and the men voted not to return to work until management addressed their concerns about safety. After Mr Irvine told the men they must return to work, the men moved to a nearby carpark. The Applicant did not vote at the meeting, and this was evidenced by the record of the interview dated 20 March 2020.[42] Nor did the Applicant attempt to influence the men not to return to work.
[42] Attachment to the Applicant’s statement , EP – 17.
In fact, there is no evidence at all of any misconduct, let alone serious misconduct on the part of the Applicant. In making this finding, I note that the Applicant did receive warnings on 27 and 28 September 2018, which related to failure to sign an attendance sheet for a “toolbox” safety meeting. However, in my view, those warnings came about as a result of the ongoing safety issues and concerns the Applicant and the men had voiced to management, and can appropriately be characterised as minor.
On the basis of the above, the Tribunal cannot be satisfied that any action on the part of the Applicant constituted misconduct, and certainly does not meet the threshold for “serious and wilful” misconduct outlined in s 14(3).
DECISION
The correct or preferable decision is that the reviewable decision dated 3 March 2020 is set aside and in substitution, the Tribunal decides:
(a)the Applicant suffered an ailment, appropriately described as an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” (the Injury) which was contributed to, to a significant degree, by his employment with the Respondent and he is entitled to compensation, in accordance with s 14 of the SRC Act, for the Injury; and
(b)the Respondent is to pay the Applicant’s reasonable costs and disbursement of the proceedings (to be agreed or assessed).
I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
.............................[sgd]...........................................
Associate
Dated: 14 February 2022
Date(s) of hearing: 28, 29 & 30 July 2021 Date final submissions received: 10 January 2022 Counsel for the Applicant: Mr K. Pattenden Solicitors for the Applicant: Santone Lawyers Counsel for the Respondent: Mr M. Baroni Solicitors for the Respondent: HWL Ebsworth Lawyers
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