Rahman and Comcare (Compensation)
[2017] AATA 2382
•24 November 2017
Rahman and Comcare (Compensation) [2017] AATA 2382 (24 November 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1303
Re:Atiqur Rahman
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:24 November 2017
Place:Sydney
The decision under review is affirmed.
........................[sgd]................................................
Deputy President B W Rayment
Catchwords
COMPENSATION – psychological condition – major depressive disorder with prominent anxiety – numerous possible causes – forced transfer to different office – workplace bullying – employer’s refusal to meet applicant’s requests for work-station modifications – demeaning nature of work – whether injury is the result of reasonable administrative action taken in a reasonable manner – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B
Cases
Comcare v Martin [2016] HCA 43; 258 CLR 467; 339 ALR 1
Hart and Comcare [2004] AATA 128Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29; (2005) 87 ALD 341
REASONS FOR DECISION
Deputy President B W Rayment
24 November 2017
The applicant seeks review of a decision made by Comcare denying his claim for workers compensation.
He is a gentleman who has a number of degrees. He immigrated from Bangladesh with his wife and son. When the applicant arrived here from Bangladesh, he held a Bachelor of Applied Science and in this country he obtained the degree of Master of Business Administration from the University of Adelaide and Bachelor of Laws from the University of Western Sydney. He completed the coursework for that degree in mid-2014. After resigning from the Department of Immigration and Border Protection in 2016, he has become a solicitor.
Starting in 2002, his employment was with the Department of Immigration and Multicultural and Indigenous Affairs, a department the name of which has changed from time to time. When he resigned in 2016, it was known as the Department of Immigration and Border Protection.
There is agreement between a number of medical practitioners that Mr Rahman suffered in 2015 and 2016 from a psychiatric condition.
The contest between the parties is whether his psychiatric condition was the result of reasonable administrative action taken in a reasonable manner. Before discussing that issue I will make findings about the primary facts.
THE POSSIBLE CAUSES OF THE APPLICANT’S PSYCHIATRIC CONDITION
It is necessary to examine four possible causes of his psychiatric condition, in the light of the opinions of a number of psychiatrists, and the applicant’s own evidence. The four possible causes identified in the evidence are:
1the forced move in January 2014 from the department’s Parramatta office to its Sydney office;
2the alleged bullying and belittling of him by two team leaders in succession, from mid to late 2014 to 2015;
3the refusal of the same team leaders to allocate a desk to him beside a window, despite repeated requests on his part because his left eye was injured and he suffered from a cataract, and he needed a well-lit working environment; and
4the demeaning nature of his workplace duties in the Sydney office.
In January 2014 he was notified that he was to be moved from the Parramatta office. He was to be placed in the Sydney office within the Sydney Service Centre. His level in the public service was to remain unchanged at APS3 and Mr Care, who chaired the selection panel which decided upon those moves, made a statement about the decision-making process on which he was not cross-examined. Both the decision to move Mr Rahman from the Parramatta office and the decision to place him in the Sydney Service Centre are established by Mr Care’s statement to have been reasonable administrative action carried out in a reasonable manner.
From 17 February 2014, Mr Rahman spent about 18 months in the Sydney Service Centre, working in a call centre, a job which he had worked in some 12 years previously. He describes the call centre job as an “entry level position”. He says in paragraph [12] of his statement of 26 January 2016 that he made every effort to get out of the call centre including applying for various jobs within the department, with the NSW Government and other agencies within the Australian Public Service.
He at first sought to be excused from having to be moved to the Parramatta office on medical and other grounds, including the need to finish subjects which he was completing towards a law degree at the University of Western Sydney. Not long before he started at the Sydney office, one of his then treating general practitioners, Dr Schindler, wrote a medical report stating that by reason of tendinitis/bursitis in both shoulders, and lumbar disc disease, it was not suitable for him to sit for long periods and that working in a call centre would not be suitable for him. Mr Rahman wrote a letter of 10 February 2014 expressing a fear that his health would not permit him to occupy a call centre role.
Following that application by Mr Rahman, he was examined on 24 March 2014 by Dr Paul, a consultant occupational physician. His report suggested exaggeration by Mr Rahman of his symptoms “to achieve better job control” and suggested that he had minimal job satisfaction. He suggested that Mr Rahman be reviewed by a psychiatrist. He expressed strong disagreement with Dr Schindler’s report and mentioned that in a conversation he had with Dr Schindler, he agreed with Dr Paul that he should be able to manage his symptoms within the workplace. Dr Paul mentioned that Mr Rahman seemed to be very unhappy with the change in his role requiring him to move from Parramatta to Sydney.
On 4 June 2014 Dr Synott, consultant psychiatrist, reviewed Mr Rahman at the request of the department. Mr Rahman had by this time spent more than three months at the Sydney office. Dr Synott’s report of 5 June 2014 records that Mr Rahman’s identification of the cause of his workplace distress was an unwanted transfer from Parramatta to Sydney. Mr Rahman reported that after 2 to 3 weeks of working in Sydney his psychological symptoms had become noticeably better and “he said that these days he is managing the situation and ‘come to terms with it’ – and there are no current psychological symptoms”. He said that he is getting on with his work superior who has been praising his work.
He told Dr Synott that he is currently working on a full-time basis in a call centre in the CBD of Sydney. He “can do the job – but is much more capable than [his] job demands of him. He has done far more demanding jobs – in his time in Australia”.
As to matters of history, he told Dr Synott of a time in 2009 when he had difficulties with a previous manager, when he became quite distressed and upset. His distress went on for 1 or 2 months, and there were no other episodes of significant distress. Dr Synott later in the same report described this situation with the previous manager as “workplace bullying”.
Dr Synott found no overt evidence of a psychiatric disorder, and he found that he was suffering from no psychiatric condition at that time.
Returning to the list of possible causes mentioned in paragraph [6] above, at this time, it appears that the first possible cause, removal from Parramatta to Sydney, and the fourth, being required to work below his ability, in combination, did not cause him to suffer from any psychiatric condition. The second cause, bullying in the workplace, had not yet occurred to him, although some 6 years previously, it had caused him distress. The third cause, being refused access to a better lit work environment had not yet occurred to him. At first in the Sydney Service Centre he had a different team leader who was said to have praised his work, and he was given a window seat. The report of June 2014 written by Dr Synott gives reason to believe that but for the other two causes mentioned in paragraph [6] above, Mr Rahman might never have suffered from the psychiatric condition from which he was found to be suffering in July 2015. That is not to say that the causes of distress mentioned in Dr Synott’s report of June 2014 did not remain as irritants, such that they could not have contributed to the psychiatric condition recognised during the following year, in combination with other matters which had by then occurred.
On 30 July 2015, Dr Bashir, one of his treating general practitioners reported to Comcare that Mr Rahman had complained about work related stress, anxiety and harassment and bullying by his colleagues, manager and supervisor. He suggested that Mr Rahman have a few sessions with a psychologist for cognitive behavioural therapy, and that he continue on medication which Dr Bashir had prescribed. This report attributes his condition to cause (2) workplace bullying.
Dr Bashir made a statement in these proceedings in which he said:
In my opinion, he has been suffering from severe depression, stress and anxiety order stemmed (sic) from his work in the Call Centre of DIBP. In July 2015, Mr Rahman provided me a copy of the statement of facts in chronological order stating how he has been mistreated with degrading behaviour such as shouting and yelling in public by his supervisors and managers at the Call Centre where Mr Rahman has been working over a year and half at that time. I found him severely depressed and suffering from work related stress and anxiety disorder. I prescribed him medication Fluoxetine 20 mg and advised him to stay away from work to avoid further confrontation and humiliation from the supervisors which might make his situation worst. (sic)
In cross-examination Dr Bashir stated that he was also told by Mr Rahman that he was having difficulty with his eyesight operating two computer screens at once, but he explained that this was a passing conversation in the course of discussing more significant complaints.
He was sent back to Dr Synott, who saw him on 25 August 2015. Dr Synott said that he described “bullying and harassment” on the part of 2 workplace superiors. He said that his psychological symptoms had markedly deteriorated in the last 14 months. He described those symptoms in detail.
In addition to the bullying and harassment, he included in the list of matters described as “his ideas as to why there [had] been a deterioration in his psychological state” that he works in a call centre and added “he finds it demeaning”. As to his ideas of what would help, he said not to be working in a call centre and to return to the Parramatta office. His preference was to work in Freedom of Information or the business team with the people at Parramatta that he knows and a situation he enjoyed.
Dr Synott diagnosed a major depressive disorder with prominent anxiety.
Largely or perhaps solely as a result of Mr Rahman’s self-report, Dr Synott attributed his condition to causes (1), (2) and (4) described in paragraph [6]. Dr Synott recommended that he be returned to the Parramatta office.
Dr Synott was cross-examined before me by Mr Finnane QC who appeared for the applicant. He said that the report of an optometrist was referred to by the applicant when he saw him in August 2015.
He was at about the same time referred by Comcare to Dr Takyar, a consultant psychiatrist, who saw him on 20 August 2015. Dr Takyar diagnosed a recurrence of a major depressive episode (evidently referring to the incident of 2009) as well as an adjustment disorder with anxiety. The history was summarized with reference to bullying and harassment and lack of support from managers. He added:
in addition he stated that he was forcibly transferred from the Parramatta site 18 months ago and that he found this extremely difficult to work in the current environment due to the bullying and harassment he believed he had been exposed to. He stated he would be keen to return to Parramatta.
I read Dr Takyar’s report, like Dr Bashir’s report of 30 July 2015, as supporting cause (2) as the predominant cause of the condition which he diagnosed. I take the references to Parramatta which the doctor makes as suggesting that a return to Parramatta would enable him to be removed from the place at which bullying and harassment were occurring. Some reference was also made in the report to difficulties experienced with clients at the Sydney office.
The applicant wrote a letter to Comcare dated 11 November 2015 after the Human Resources Manager had offered him a position with the Illegal Maritime Arrivals (IMA) team at Parramatta. Mr Rahman described that role as “exactly a similar role working on telephone duties 9-5 full time with restricted breaks”. He said: “I am clear about this that I would rather die than go back to working in Call Centre or telephone duties in IMA again. These are same cats with different fur” (sic). This letter was not directed to explaining the basis of his psychiatric condition, and was written to press for a certain kind of job, and he did not expressly nominate the demeaning nature of the work as the reason for his entreaty. It is, however, possibly a confirmation, in part, of the matters mentioned by Dr Synott which are relevant to cause (4).
In July 2016 he was seen by Associate Professor Robertson, a consultant psychiatrist, at the request of Comcare so that the doctor might be qualified as an expert witness in this proceeding. Dr Robertson, having spoken to the applicant, attributed Mr Rahman’s depression to causes (1), (2) and (4) mentioned in paragraph [6] above. The applicant said as well that “he was provided with an adequate work space/work station” which may possibly be a reference to cause (2). His assessment included the following:
Mr Rahman’s subjective experience of his employment appears to be the primary driving factor for his depression. Mr Rahman feels that he was forcibly displaced to a workplace that brought about a significant loss of face. This seems to have engendered a sense of grievance that influenced his subsequent interactions with the employer and, I suspect, made him more likely to take offence or feel diminished by his subsequent interactions with them. He claims to have felt undervalued, spoken to in a disrespectful and demeaning manner and at times has been humiliated in front of his colleagues.
The remarks I have quoted are apparently in part a history taken from the applicant and in part some impression of Dr Robertson. Dr Robertson explained that his purpose was to establish whether there was evidence of the psychological injury, what the context of that injury was, and his general perception of the origin of that injury.
When asked whether eyesight problems had been discussed, he said that he did not recall eyesight being discussed in any detail.
The applicant gave much written evidence and oral evidence before me. He was cross-examined by Mr Gollan of counsel who appeared for Comcare. As to the causes mentioned in paragraph [6], he accepted cause 2 (the bullying and harassment) and cause (3) (the unreasonable refusal to allow him to sit at a desk beside the window) as the events which led him to become depressed. He did not accept cause (4) as a cause of his psychiatric condition, because it, like the move from Parramatta to Sydney, was something he had to put up with as part and parcel of having a job, which he needed to keep. That evidence was in my view consistent with the evidence of Dr Bashir and Dr Takyar and inconsistent with the evidence given by Dr Synott and Dr Robertson.
Neither Dr Synott nor Dr Robertson was a treating doctor, and nor was Dr Takyar. The relevant reports which each gave were reports given by a man who, according to the reports of each doctor, was depressed and anxious. Dr Synott in August 2015 and Dr Robertson in July 2016 specifically noted and stressed in their evidence that cause (4) was important in the account given by the applicant. For Dr Takyar and Dr Bashir, and I would say for the applicant himself, the prominent matter was the bullying and harassment. The applicant regarded the employer’s response to his request for a desk beside a window as another instance of the bullying to which he was subjected.
Despite the evidence of Dr Takyar and Dr Bashir, and despite answers given by the applicant in cross-examination, I think that cause (4) was probably subjectively important to the applicant in the 2015 period, if not before then. He was proud of his achievements at universities, and pleased that his team leader praised him on arrival at Sydney. He was proud of the contributions he had made to the section in which he worked at Parramatta before his transfer to Sydney. On the other hand, he disliked both the call centre work and regarded it as “entry-level” work. The letter I have summarized at paragraph [26] above also tends to confirm the finding I have made in this respect.
On the other hand, and despite the evidence given by Dr Synott and Associate Professor Robertson, I think the better view of the evidence favours the applicant about the significance of cause (1), the question of transfer to Sydney. I think his desire to undo that transfer in 2015 owed much to his desire to escape a bullying and harassing work environment, and what he perceived to be a demeaning job.
I therefore find that causes (2), (3) and (4) were the concurrent and co-operating causes which led to the psychiatric condition from which he suffered by July 2015.
I have already found that cause (4) was in turn caused by reasonable administrative action taken in a reasonable manner.
The respondent did not call any person said to have bullied or harassed the applicant. There was some hearsay documentary evidence within the T-Documents. I accept the evidence of the applicant that such bullying and harassment as he alleges occurred. It may be sufficient to note that it was perceived to have occurred, but I have accepted the applicant’s account as truthful. It could not be said to have been founded on any reasonable administrative action.
As to the failure to give the applicant a window seat, I am not satisfied that the failure was brought about by reasonable administrative action. In order to move to a desk which remained empty for six months, it is not reasonable for the applicant to have been required to obtain an ophthalmologist’s report, with attendant expense in my opinion. Mr Youssef and Mr Riddle were not called on the matter. The request seems to me to have been a modest one. The applicant’s eyesight was affected adversely and there was in any event no reason to disbelieve his claim. Mr Gollan drew to my attention that even when he sat close to a window, he was experiencing dizziness and discomfort early in his employment in the Sydney office. That does not mean that he did not perceive a greater problem when moved to an area not close to a window. The refusal to accede to his request smacks of antagonism and dislike which ought to be foreign to a workplace and which does not amount to reasonable administrative action.
THE LAW
I turn to the legal questions arising. Comcare relies on the decision in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29; (2005) 87 ALD 341.
The statutory context in which that case was decided was that the definition of “injury” in s 4(1) of the Safety, Rehabilitation and Compensation Act 1998 (SRC Act) then provided:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The definition of "disease" in s 4(1) was in the following terms:
"disease" means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
In Hart, the issue was whether in the light of the findings of this Tribunal in that matter, the injury or disease suffered by the applicant was compensable. The Tribunal had held that there were two contributing factors to the injury suffered by the applicant. One was compensable and the other was not. The Full Court held that in consequence of the finding that one operative cause of the injury or disease was not compensable, and on the proper construction of the legislation, the injury was not compensable. That is because the definition of an injury is confined by the proviso, and a disease is “suffered as a result” of a thing, if that thing is one of the operative causes of the disease.
Whether that finding is applicable in this case depends on whether the current form of the legislation is comparable, and whether at least one cause of the injury or disease from which the applicant suffers was not compensable.
Section 5A of the SRC Act now provides as follows:
Definition of injury
(1) In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(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 or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act provides that:
(1) In this Act:
"disease" means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
The definition of “injury” in s 5A is confined by exactly the same words as were construed in Hart, so the decision is in point.
Hart’s case depended on the findings actually made by the Tribunal in that case. It is reported at Hart and Comcare [2004] AATA 128. The Tribunal found that there were several concurrent causes of the psychiatric condition in that case. One was the anguish caused by the failure to obtain a promotion, which was a reaction to reasonable administrative action. The other was anguish caused by a number of aspects of the way in which the promotion process was handled, and that was not the result of reasonable administrative action. No finding was made as to whether, if the applicant had obtained the promotion, the way in which the promotion process had been handled would or would not still have caused the ailment, or whether obtaining the promotion would have washed it away. However it seems to me that the Tribunal findings do suggest that what caused the ailment was the combination of the failure to obtain the promotions (accepted as the result of reasonable administrative action) and other factors and perceived slights upon Ms Martin which had no cause in any administrative action, but which were employment-related.
The High Court considered the statute in its current from in Comcare v Martin [2016] HCA 43; 258 CLR 467; 339 ALR 1. The relevant facts were that Ms Martin experienced a horror of working with one Mr Mellett. She applied for a promotion, and was unsuccessful. In her mind, (whether or not in fact) that meant she would go back to working under Mr Mellett. It caused her immediately to suffer an aggravation of her existing anxiety condition, and she went off work. The court accepted that the failure of Ms Martin to gain the promotion was reasonable administrative action taken in a reasonable manner.
The High Court said that the fact that she did not gain the promotion was an event without which she would not have suffered an aggravation of her pre-existing anxiety condition. The court said that the circumstance that there may have been multiple causes, one of which was the administrative action, would not exclude the application of the exclusionary phrase. There may be multiple cases, some of which might be related to other aspects of the employee’s employment.
The Court held that the Full Court was wrong to apply a common sense notion of causation. So long as the aggravation of her condition would not have occurred if she had won the promotion, the causal requirement specified was satisfied. For that purpose the Court applied a “but for” test, asking whether the injury or condition or aggravation would have been suffered if she had not learned that she did not gain the promotion.
It seems to me that Hart’s case and Martin may stand together. Hart did not discuss the nature of the causal test, which Martin has now stated.
DECISION
The findings which I have made summarized in paragraph [34] above therefore cause me to affirm the reviewable decision.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment
.........................[sgd]...............................................
Associate
Dated: 24 November 2017
Date(s) of hearing: 10, 16-17 & 25 October 2017 Date final submissions received: 7 November 2017 Counsel for the Applicant: Mr M Finnane QC Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Ms A Fernandes, Sparke Helmore
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