Re Albanese and Comcare
[2004] AATA 768
•21 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 768
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/375
GENERAL ADMINISTRATIVE DIVISION ) Re CESARE ALBANESE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 July 2004
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision under review, and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(b) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c) orders that in the absence of any such application the respondent pay the costs of the proceedings.
(D.G. Jarvis)
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – adjustment disorder with mixed emotions – Customs officer denied access to database because of security query – perception of victimization – psychological disorder not result of failure to obtain transfer or benefit in connection with employment – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4 and s 14
Comcare v Mooi (1996) 69 FCR 439
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Wiegand v Comcare (2002) 72 ALD 795
Re Davill and Australian Postal Corporation (AATA 10629, 22 December 1995)
Comcare v Ross [1996] 680 FCA 1
Trewin v Comcare (1998) 84 FCR 171
Re Liu and Comcare [2004] AATA 617
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
21 July 2004 Deputy President D G Jarvis Introduction
1. The applicant, Cesare Albanese, claimed compensation on 21 February 2002 for anxiety with reactive depression, and alleged that this condition developed as the result of events at a meeting with management of his employer, the Australian Customs Service (“ACS”). In his claim for compensation, the applicant asserted that this meeting took place on 28 October 2001, but later corrected this to 1 November 2001. I will refer in detail to the events of this meeting later in these reasons. The respondent rejected the applicant’s claim on 23 May 2002. That rejection was affirmed in a reviewable decision made on 11 October 2002. The applicant has applied to this Tribunal for review of that reviewable decision.
2. The applicant was represented by Ms Lorraine Walker of counsel, and the respondent was represented by Mr Simon Stretton of counsel. The applicant gave evidence and also called his family doctor, Dr Pasquale Cocchiaro; a psychiatrist, Dr John Schembri, who gave evidence by telephone; and two management personnel then with ACS in South Australia, namely Mr Richard Janeczko and Ms Virginia Lynch. The respondent called a psychiatrist, Dr David Kutlaca and a former employee of ACS, namely Mr William Hogan (who gave evidence by video and by telephone respectively). The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were admitted in evidence, and the parties tendered a number of other documents. Counsel provided their final submissions in writing. The respondent’s submissions were received on 8 March 2004 and the applicant’s submissions were received on 16 March 2004.
Background Facts
3. The following background facts are based on oral or documentary evidence which was not contested.
4. The applicant was born on 9 May 1958. He commenced employment in ACS in 1977, when he was approximately 19 years of age. He has carried out a wide variety of work with ACS, but for the last seven or eight years he was involved in the border protection area, which is the enforcement arm of the ACS and deals with offences against the Customs Act, including, in particular, the importation of prohibited imports and narcotics.
5. In order to work in the border protection area, it was necessary for the applicant to have an internal ACS security clearance to the “secret” level. He possessed such a clearance as at 1 November 2001, and during an earlier period when his duties with the border protection area so required, he was also authorised to access the Australian Bureau of Criminal Investigation (“ABCI”) database. This database is also referred to in the proceedings as “ACID”, being an acronym for the Australian Criminal Intelligence Database.
6. Mr Albanese’s duties later changed and he no longer required, and did not maintain, his ACID access.
7. On a date which was not identified, but which I infer was shortly before 1 October 2001, Mr Albanese was assigned to work with the joint targeting team. This entailed a member of the ACS working with a member of the Australian Federal Police (“AFP”), where the two persons would actively identify potential targets for investigation by both the ACS and AFP. Mr Albanese was to commence with the joint targeting team on 1 October 2001, but he first had to complete a project on behalf of Mr Janeczko, and he actually started in the joint targeting team on about 7 or 8 October 2001.
8. At a meeting on 1 November 2001 with Mr Janeczko and Ms Lynch, Mr Albanese was advised that there was a problem with his ACID access, and accordingly he would have to be moved to another position, as ACID access was required to enable him to carry out his duties with the joint targeting team.
9. On Friday, 2 November 2001, Mr Albanese decided as a result of what he had been told at the meeting the day before, to take one month’s leave, and advised his Regional Manager, Ms Lynch, that he hoped the matter could be sorted out before his return.
10. Mr Albanese claims that he developed a mental disorder and became incapacitated for work as a result of his reaction to the denial of access to the ABCI database and being told he would have to be moved from the position to which he had recently been assigned, and the effect on him of these matters. He has not returned to work since going on leave on 2 November 2001.
Issues
11. The issues before the Tribunal were as follows:
(a)whether the applicant suffered an injury within the meaning of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”);
(b) if so, whether the injury resulted in incapacity for work;
(c)whether the exclusionary provisions in the definition of “injury” in the Act apply to the injury asserted by the applicant; and
(d)if the applicant suffered an injury and it resulted in incapacity for work, the duration of that incapacity.
Legislation
12. Section 14(1) of the Act provides for compensation for injuries, and provides as follows:
“14(1) Subject to this Part, Comcare 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.”
13. Section 4(1) of the Act includes definitions of the words “injury” and “disease”, which apply unless the contrary intention appears. These definitions are as follows:
“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.
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.”
The word “ailment”, which is used in the definition of disease, is also defined in s 4(1) to mean (in the absence of a contrary intention) as follows:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
14. The concept of incapacity for work is defined in s 4(9), which provides as follows:
“4(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Evidence
15. I will first refer in further detail to the applicant’s evidence of the meeting on 1 November 2001 and of subsequent events.
16. Mr Albanese said that at the meeting on 1 November 2001, he was advised that ACS had known previously that there was a problem in his obtaining ACID access, and as a result there had already been an informal investigation by the Internal Affairs Unit (“IAU”) of ACS; and he said that he was also told that in view of the denial of access by ABCI, his internal ACS secret level security rating would have to be formally reviewed. Whilst the two ACS management personnel at the meeting, Mr Janeczko and Ms Lynch, did not accept that Mr Albanese had been so advised at this meeting, they did not apparently provide statements in relation to the meeting until more than three years later. I find that the applicant’s evidence as to this aspect is more reliable. In making this finding I also note that the subject matter of what the applicant said he was told was correct: as at 1 November 2001 ACS did know of the denial of ACID access, and there had been an earlier informal IAU investigation following IAU advice to Mr Janeczko almost 12 months prior to 1 November 2001 that there had been an allegation made regarding the applicant which was preventing ABCI granting him access to its database (see paragraph 9 of exhibit A4).
17. Mr Albanese said that his initial reaction to what he had been told at the meeting (see paragraphs 8 and 16 above) was that he “just thought the whole thing was incredulous” (transcript, 9.02.04, at page 17, line 20), in view of his extensive past work with the National Crime Authority, the South Australia Police and the AFP, and his involvement in narcotics seizures for all of those agencies. He advised Ms Lynch of his decision to take one month’s leave in an email of 2 November 2001 in which he also said that he hoped the matter could be resolved before his return. The email continued:
“I will be available, if required, to attend interviews, answer questions, produce documents etc. Thanks for your (and Richard’s) support on this matter. Please keep me informed of any developments.” (Attachment 3 to exhibit A5).
18. The applicant also said in evidence when referring to the meeting on 1 November 2001:
“I thought I was denied natural justice. I had asked for any allegation to be put to me. I said that I would respond to any question put to me. My life is an open book. I have nothing to hide … .” (transcript 9.02.04, page 19, line 5).
19. The applicant said that on the first weekend of his leave he felt as if he had been hit in the face with a sledgehammer and was concerned about the possible effects on his integrity and his career, and his standing within the law enforcement and intelligence community. He said his head was spinning, and he spent a good part of a week going over every conversation, meeting, action and person he had met in the last two to four years to determine what he had done that could be seen as illegal or strange. He said: “I just couldn’t understand how this could be happening to me and I just questioned everything about my previous experience in my personal life” (transcript 9.02.04, page 19, line 35).
20. After Mr Albanese had been on leave for about seven or eight days he learned, as a result of a telephone call from a work colleague, that an ASC weekly staff bulletin included reference to him to the effect that he was on leave and was to be moved to a position yet to be decided. The applicant thought that this was completely contrary to the agreement he had reached with Mr Janeczko and Ms Lynch, because he had thought that they would try to settle the matter involving his access to ACID before any decision about any move would be made. He said that this reference to him in the ACS bulletin raised the curiosity of everybody at work. He started getting phone calls at home and he thought this was because he had been working in a job which he thought had a high profile, high prestige and high security level, and ACS had not even said in the bulletin where he was going. Later he received an anonymous copy of the page of the bulletin containing this item, with his name circled. Mr Albanese also referred to a conversation with his wife in which she relayed advice from an immigration officer that “they knew the real reason why [he] was off work and that it was all to do with my security rating” (transcript 9.02.04, page 28, line 2), and that this officer had heard this from a Customs officer who had heard it from an AFP officer who was working with him in the joint targeting team. He said he felt absolutely devastated and humiliated by this because Mr Janeczko and Ms Lynch had given him a personal assurance on 1 November 2001 that the information would stay within the room.
21. When asked to advise what emotional responses he was experiencing during the first few weeks of his leave period, Mr Albanese said:
“I was very agitated. I just had – my head was completely spinning about what had happened to me. I was questioning everything that I did in the past. I looked at every car that drove past. I looked over my neighbours’ fences … I was paranoid. Obviously they had cameras on me. They were doing surveillance on me. I thought there had to be something wrong with me. I suffered a loss of appetite. I smoked three times as much as I normally would. I had headaches. I suffered migraines that I never had before. I started to get chronic heartburn. I started to get other stomach disorders and complaints. I couldn’t sleep properly.” (transcript 9.02.04, page 28, line 20).
22. At the insistence of his wife, Mr Albanese saw his general practitioner, Dr Cocchiaro, on 26 November 2001. He said by then he felt that he had been completely let down by his employer and had lost total confidence in what they were doing to him and suspected that none of this could have happened without them knowing about it. He said: “It just didn’t make any sense whatsoever.” (transcript 9.02.04, page 30).
23. The applicant said that Dr Cocchiaro prescribed medication, including Xanax, to help him overcome his anxiety and to help him with sleep. He said that he has attended Dr Cocchiaro every month since 26 November 2001 and had continued taking the medication when necessary, and he had tried a number of herbal remedies, and about four or five months before the hearing he had tried two different types of anti-depressants which, however, caused other problems and he gave them up. He said that since he saw Dr Cocchiaro on 26 November 2001 the most noticeable change in his symptoms was that when he reached a stage of great agitation he could calm himself down by using Xanax. He still gets attacks of gastric reflux, still has sleeping problems and migraines (which he treats with Panadol and rest), and still has paranoia and fear. He said that he has not socialised with anyone from his employment and is reluctant to leave the house for any particular reason.
24. Mr Albanese said that whilst he had discussed seeing a clinical psychologist with Dr Cocchiaro, he did not think that that would help, and they were going to make an appointment to see a psychiatrist when Comcare scheduled a meeting with Dr Kutlaca. He thought that this consultation would provide him with “where he was mentally and where he needed to go”, but he did not think that there would be any benefit in seeing a psychiatrist on a long-term basis.
25. As regards rehabilitation assistance, Mr Albanese said that he was not contacted by ACS regarding this until November 2003, when someone from ACS visited him.
26. The applicant referred to having been offered the opportunity to return to a number of positions with the ACS. He first gave evidence of a meeting on 21 December 2001 which his solicitor attended. He said he was seeking a reassurance that there was “nothing wrong” with him (transcript 9.02.04, page 34, line 32). Following this meeting, ACS sent a letter dated 3 January 2002 to the applicant’s solicitor and advised that the outcome of his security review was unlikely to be available before the end of February 2002. The letter identified three Level 3 positions then available to the applicant, and it also referred to other possible Level 3 positions whose availability was subject to the reassignment of the incumbent officers.
27. Mr Albanese responded to this letter by an email dated 8 January 2002 (see attachment RJ4 to exhibit A4). Extracts of this email were later sent to Dr Kutlaca and led him to change his opinion regarding the applicant’s condition. In view of this, I set out below the full text of the email.
“John,
I refer to a letter from the Australian Government Solicitor dated 3 January 2002 and forwarded to my solicitor, regarding suitable employment positions.
The positions made available to me appear to be in areas outside of my desired career path and recent training history. To me this is clear indication that I am being disciplined and or punished for reasons that to date, have not been divulged.
On 21 December 2001, a meeting was held with the Regional Director, a member of the Australian Government Solicitor, my solicitor and myself, to discuss the situation. During the meeting the only grounds offered by Customs for the move from my current position was the existence of letter from the ABCI to the National Manager Intelligence, stating that Customs should not forward any more ABCI database applications on my behalf.
To date there has been no accusations or evidence provided by any party to prove any offence or misconduct. I believe the reason for my move is totally unjustified and dubious. My recent work history and dealings with other agencies belies the reason offered.
I have been told by local management that they have complete confidence in me, yet I was moved out of my position and advised that my current security level (SECRET) will be reviewed. The entire affair has left me feeling that I am being victimised and persecuted by Customs (for no apparent reason).
I cannot see any reason why I could not return to the RIA area as an analyst as the majority of positions there are at the Highly Protected level and do not require any access to ABCI information. I believe this would be a step in restoring my confidence in the organisation.
As advised at that meeting, my doctor has issued me with a medical certificate until 14 January 2002. He has advised me to return to him before that date to reassess my condition. I will advise you personally of any ongoing developments.
Can you please forward the appropriate Comcare forms to me in order to proceed with a claim. You can either send them by mail to 13 Keats Grove, Fulham Gardens, SA 5024, or forward them via my spouse.
If you need to correspond to me about this matter you can by addressing your email to me at [email protected]
Thanks
Cesare Albanese”
28. In his evidence, Mr Albanese explained that the reason for his request to return to the same area he had been working in was that this would show that ACS had some confidence in him, and this was important to him because he thought that his integrity in the ACS was “absolutely zilch” (transcript 9.02.04, page 35, line 25).
29. In cross-examination, Mr Albanese denied that he was unwilling to return to work or that he had chosen not to return to work until his compensation claim was resolved. He referred to his emotions and reaction to the meeting on 1 November 2001 and to his subsequent symptoms and medical consultations, and I am satisfied that he was incapacitated from returning to work as from no later than 26 November 2001, when Dr Cocchiaro certified that he was unfit for work. I will refer later in these reasons to the issue of the duration of his incapacity for work, having regard to events relating to the applicant’s security status and offers of employment made to Mr Albanese by ACS.
30. Mr Janeczko gave evidence that as at 1 November 2001, he was the Regional Manager of ACS in South Australia, and he continued in that position until he was transferred to a position in Canberra in August 2002. He gave evidence as to the history of the refusal of the applicant’s ACID access, and said that following the meeting on 1 November 2001 he arranged for Mr Albanese’s internal ACS security clearance to be formally reviewed. He also gave his account of the meeting on 1 November 2001, and summarised subsequent communications between ACS and Mr Albanese or his solicitors, including the attempts by ACS to find a position within ACS to which Mr Albanese could return. Mr Janeczko agreed that he had never given any explanation to the applicant as to the issue or issues which gave rise to the denial of ACID access.
31. It further appears from Mr Janeczko’s evidence that he learned of some general material pertinent to the refusal by ABCI of access to their database when he reviewed files in the last few weeks prior to the hearing, and in preparation for the hearing, but he said that he was not in a position to discuss ABCI matters anyway (transcript 10.02.04, page 101, line 31).
32. The respondent recalled Mr Janeczko later in the hearing to make it clear that it was the right of ABCI to decide, in the case of a particular ACS employee, whether or not to give access to their database, and that ABCI did not have any obligation to the person applying for access. He further thought that it would be “implied” that ACS would not be told reasons in the event that access was not granted. It appears from the evidence before me that ACS endeavoured to find out the reasons for Mr Albanese being denied access to the ABCI database, or alternatively, to find out what information could be given to him in this regard, and that these efforts culminated in a letter dated 4 February 2004 from the successor of ABCI, the Australian Crime Commission (“ACC”). This letter did not, however, provide the information that was sought; after referring to the statutory functions and obligations of the ACC, the letter merely restated the position which had been advised to ACS in the earlier letter of 22 February 2002. I am satisfied, and find, that Mr Albanese was not aware at any time after the November 2001 meeting and up to the conclusion of his evidence in the proceedings before me that he could not be told the substance of the allegations which resulted in his being refused access to the ABCI database.
33. Ms Lynch was the Regional Manager Border and Commercial of ACS in South Australia as at 1 November 2001, and she became the Regional Director of ACS in South Australia after Mr Janeczko was transferred to Canberra. She also gave evidence as to the meeting on 1 November 2001 and as to her subsequent limited involvement in the issues which have arisen as a result of that meeting. Following a conciliation conference in this matter on 31 July 2003, she gave instructions to the Australian Government Solicitor (“AGS”) to offer Mr Albanese the position of Regional Security Advisor (“RSA”) for South Australia Customs, and this resulted in a letter of 5 August 2003 from AGS to the applicant’s solicitors, to which I will refer further later in these reasons (attachment 8 to exhibit A5). On 24 September 2003, Ms Lynch instructed AGS to again write to the applicant’s solicitors to follow up the offer of the RSA position, and also to offer to follow up with the ABCI the reasons for their refusal to approve the applicant’s access to its database. This instruction apparently gave rise to the letter of 16 October 2003 from AGS to the applicant’s solicitor, but regrettably this letter was not communicated to the applicant himself (see attachment 9 to exhibit A5). In any event, whilst Ms Lynch said that she was aware from a conversation with a Mr Kitson of the ACC of the reason why Mr Albanese was declined access to ACID, it also appears that she was waiting for ACC to get back to her with some advice which would be provided to Mr Albanese giving him the reason as to why ACID access was refused, but the only information which was eventually provided to ACS was the letter of 4 February 2004, being attachment RJ1 to Mr Janeczko’s supplementary statement in exhibit A4, and this does not include any information as to the reasons for the denial of ACID access.
34. Both Mr Janeczko and Ms Lynch said that they had never held any security concerns regarding the applicant and, indeed, Mr Janeczko said that he told the IAU, when he first learned on 6 November 2000 that there was an issue regarding the applicant’s access to ACID, that the applicant was one of his better staff members who was actively involved in law enforcement activities, and he would be highly surprised if there was any substance to the allegation which was preventing ACID access (see attachment RJ1 to the initial statement of Mr Janeczko in exhibit A4).
35. There was a conflict in the evidence of the applicant on the one hand and Mr Janeczko and Ms Lynch on the other hand on the issues of whether the matters discussed at the meeting on 1 November 2001 were to remain confidential to the three persons involved in that meeting (as the applicant said) and also as to whether the applicant would remain in his job with the joint targeting team pending the resolution of the security issue. On the first point, I accept the evidence of Mr Janeczko that he merely told the applicant that he and Ms Lynch would do whatever they could to maintain strict confidentiality, and I further accept Mr Janeczko’s evidence that inevitably some other people needed to know of Mr Albanese’s decision to take time off from work, as his absence affected the functioning of the joint targeting team. The question of whether the position in the joint targeting team would be kept open for Mr Albanese until his security clearance had been clarified is perhaps less clear, but I accept that after the meeting and when Mr Albanese decided to take leave to enable the issue to be resolved, he believed that the job would be kept open for him pending the reinstatement of his ACID access.
36. Whilst the applicant was at times emotional when giving evidence, I found him to be a truthful witness, and I am satisfied that he did his best to remember the relevant events. I accept his evidence except where I expressly indicate otherwise in these reasons.
Applicant’s Security Status
37. The documents produced by Mr Janeczko and Ms Lynch indicate that by letter dated 22 February 2002 ABCI indicated to ACS Canberra that the difficulty with Mr Albanese’s ACID access no longer existed, and also that the ACS internal review of the applicant’s internal ACS security status was eventually completed so that his ACS status was confirmed. However, these matters had an unfortunate history.
38. The letter dated 22 February 2002 from the ABCI cautiously advised ACS Canberra that “although reservations still remain concerning Mr Albanese’s suitability, there is insufficient information available to support further denial of access.” and that, provided the ACS security review reaffirmed the suitability of Mr Albanese to access ACID and his role and responsibilities necessitated that access, then ACS was invited to resubmit Mr Albanese’s application (see attachment RJ8 to exhibit A4). However, for some reason which was not explained, this letter was not received by Mr Janeczko until August 2002. Further, Mr Albanese said that he had never formally been advised of the letter from ABCI to ACS of 22 February 2002, and he only saw the letter because his solicitor, Mr Richards, subpoenaed the document from Customs and obtained it in June, July or August 2003. In this regard, I note that the relevant summons was returnable in February 2003, and presumably Mr Richards obtained a copy then (although it does not follow that Mr Albanese saw a copy of the letter then). I also note that Mr Albanese referred to the ACID access issue having been provisionally resolved in a consultation with Dr Cocchiaro on 12 December 2002, and I find therefore that Mr Albanese had become aware of the effect of the letter of 22 February 2002 by about the date of that consultation.
39. As regards the internal ACS security clearance issue, I note that Mr Hogan (who was then the Director Security of ACS in Canberra) wrote to Mr Albanese on 27 February 2002. He referred in his letter to the proposed ACS review of Mr Albanese’s security status, and said that relevant issues would usually be resolved through an interview process, but he preferred to defer the interview until Mr Albanese’s health permitted his participation; he accordingly asked Mr Albanese to advise in due course of his availability to attend an interview to finalise the issue.
40. After he received the letter of 27 February 2002, the applicant said in evidence that he contacted his solicitor, Mr Richards. He said Mr Richards’ advice was that if ACS had any questions they wished to put to him they could put them in writing and he (Mr Richards) would respond on his behalf. He believed that Mr Richards had sent a letter to ACS to that effect. I find that regrettably, Mr Richards did not do so at that time. Mr Richards further advised Mr Albanese that neither Comcare nor ACS should be contacting him directly in the future.
41. Mr Hogan then sent a follow-up letter dated 17 April 2002 to Mr Albanese to say that he had not received a response to his earlier letter, and again sought advice as to his availability to attend an interview to finalise the issue. Following receipt of this letter, Mr Albanese chased the matter up with Mr Richards and was told that he (Mr Richards) had previously written to ACS. Mr Albanese said in evidence that he then thought that ACS had been scared by having to put something in writing, and he did not follow the matter up at that stage.
42. Messrs Richards and Hogan also gave evidence about these communications, and extracts from Mr Richards’ file were tendered as exhibit R2. From these extracts, it appears that the applicant sent Mr Richards an email dated 13 March 2002 which (amongst other things) enclosed a suggested draft response to the letter from Mr Hogan of 27 February 2002, and this draft included a list of suggested questions to ACS. In an email to the applicant of 22 March 2002, Mr Richards said (amongst other things) that his firm intended to advise ACS that Mr Albanese was not prepared to attend any meetings, and to direct any further correspondence to his firm. Later, and after the date of the ACS follow up letter, Richards Lawyers sent a letter dated 23 April 2002 to ACS; after referring to the ACS letter of 27 February 2002, the letter from Richards Lawyers requested that all future communications be through their office, and then concluded with what might have been interpreted as (and probably was in fact) a hackneyed final paragraph reading:
“If you have any questions relating to the above matter, please do not hesitate to contact the writer.”
43. Mr Richards said in evidence that he could recall telling Mr Hogan of ACS, in a telephone conversation of 26 April 2002, that if ACS wanted to interview the applicant they should forward a list of questions to him (Mr Richards), and he would get instructions and answer them. Exhibit R2 includes a perfunctory file note made by Mr Richards which (as the applicant’s counsel acknowledged) is incomprehensible to mere human beings, and certainly does not expressly confirm Mr Richards’ recollection of the substance of this conversation. Mr Hogan said that he could not recall receiving such a phone call, but said if he had, he would have made a note on his file, and it was agreed by the parties that his file did not contain any such file note. I think it unnecessary for me to resolve this issue. What is relevant (as I find) is that Mr Albanese believed, as from about 22 March 2002, that all further communications should be made through his solicitors, and that a letter had been or would be sent to the ACS requesting a list of questions they required answering, and after that he was waiting for the ACS to provide him in writing with a list of questions which they required him to answer in order to deal with the issue of his internal ACS security clearance.
44. Mr Albanese in his evidence said that later Mr Richards contacted him again and told him that he had received a further letter, which I infer was the letter of 6 August 2002 from ACS to Richards Lawyers, in which ACS again referred to the letter of 27 February 2002 and inquired as to Mr Albanese’s availability to attend an interview. After that Richards Lawyers, at long last, requested ACS in a letter dated 15 October 2002 to “provide a list of questions”, and advised that they would then provide those questions to the applicant.
45. It appears from exhibit R3 that Mr Albanese rang ACS on 17 October 2002, and that arrangements were made for a security vetting officer from ACS Canberra to come to Adelaide to interview Mr Albanese at the offices of his previous solicitor.
46. When this interview finally occurred in November 2002 Mr Albanese said he was dismayed to be told that the officer did not have much to ask him, and that he simply proposed to ask the standard set of security questions. He had understood from the first letter from ACS of 27 February 2002 that (as that letter said) a review of his personal security file had raised “some issues” that were usually addressed through an interview process. Mr Albanese’s evidence as to his further conversation with the vetting officer was as follows:
“’There’s got to be something there, mate’. He said: ‘Sorry, I’ve read your file.’ He said: ‘There’s nothing there.’” (transcript 9.02.04, page 38, line 7).
The vetting officer’s report was dated 17 January 2003, and a copy of this report was tendered and is exhibit R4. Presumably Mr Albanese’s security status was confirmed soon after the date of the report, and as far as he recalls, he was notified of this in January or February 2003.
47. Due to the above unfortunate series of events, and despite the attempts of ACS to resolve this matter sooner, there was a very significant delay before Mr Albanese’s internal security level within the ACS was reviewed and confirmed. This delay occurred in circumstances where Mr Albanese remained most angry, apprehensive and anxious about the events of the 1 November 2001 meeting on his reputation and integrity. Further, he has never been given any explanation as to the issue or issues which resulted in his ACS security level being the subject of an internal review. I find that it is likely that these matters and the delay in learning of the removal of the difficulty with ACID access perpetuated, and perhaps even exacerbated, the psychological disorder which (for reasons referred to below) I find Mr Albanese suffered as a result of the meeting on 1 November 2001.
Offers of Employment by ACS
48. As mentioned above, following a meeting on 21 December 2001, ACS sent a letter dated 3 January 2002 to the applicant’s solicitor and identified three different Level 3 positions which would be available to the applicant, and referred to other possible Level 3 positions whose availability was subject to the re-assignment of the incumbent officers. However, Mr Albanese said in evidence that he was not prepared to accept these positions, as they were outside the border protection area of Customs, and he thought that if he went to one of the jobs offered it would have been obvious to everyone in ACS that there was something wrong because he would have been moved from a position with a high security rating to one that had a lower security rating. He thought that this would have led to talk, rumour and speculation amongst the workplace in ACS, and questions would have been raised as to why he had been moved to one of these jobs.
49. A further offer of employment was made to the applicant in the letter dated 5 August 2003 from the AGS to the applicant’s solicitors, being the letter to which I have already referred in the context of Ms Lynch’s evidence (see paragraph 33 above and attachment 8 to exhibit A5). This letter commences by referring to a conciliation conference in this matter on 31 July 2003, and to an undertaking to liaise with the ACS in relation to any current positions available to the applicant. The letter offered Mr Albanese the position of Regional Security Adviser for South Australia Customs and then proceeds:
“… We are instructed that there is no other position within the Adelaide office that is more likely to address your client’s concerns to vindicate himself and establish his integrity within the workplace. Amongst other duties the RSA is responsible for the assessment of other persons’ security clearances and therefore requires trust and discretion of the highest order. It also requires sensitive liaison with other agencies as Customs’ representative.
4. The position is based within the area your client was formerly working.
5. The offer of the position to your client indicates the trust that Customs is willing to place in him and to demonstrate this trust to others in the workplace.
6. As discussed at the conference, Customs’ policy is to deploy its resources where required for operational and other reasons and accordingly your client will not ‘own’ this position indefinitely. However, to ensure his rehabilitation to the workplace the Regional Director will ensure that he remains in the position for a minimum of 12 months.
…”
The letter also said the positions previously offered to the applicant remained open to him. Finally, the letter advised that ACS was willing to meet with Mr Albanese to discuss his suggestions that persons within ACS were implicated in the refusal of his request to access the ABCI database.
50. This letter was followed by a letter of 16 October 2003 from the Australian Government Solicitor to the applicant’s solicitors (see attachment 9 to exhibit A5). This letter referred to the offer of employment in the earlier letter of 5 August 2003, and also advised that ACS had recently contacted ABCI “to obtain information about the reason for the ABCI’s refusal to approve Mr Albanese’s access to its database”. The letter confirmed that ACS was available to discuss that issue and any other matters that may be of concern to Mr Albanese outside of the current compensation proceedings.
51. On the face of it, the offer of the RSA position completely addressed Mr Albanese’s concerns about being moved to another position which might raise speculation about his integrity or reputation, and the offer of this position demonstrated that ACS was placing an extremely high level of trust in Mr Albanese, which should have restored his confidence in his relationship with ACS. In addition, the offer by ACS for Mr Albanese to discuss his outstanding concerns would also have potentially greatly assisted Mr Albanese to have overcome those concerns. It seems to me that in these respects, ACS made a significant and genuine attempt to address Mr Albanese’s ongoing concerns and to facilitate his return to work. However, I find that Mr Albanese continued to be incapacitated for work notwithstanding the above endeavours by ACS to meet the applicant’s concerns. My reasons for this finding may be summarised as follows.
(a) The applicant’s solicitors did not send Mr Albanese a copy of either of the two letters referred to above. It appears that Mr Albanese saw the letter for the first time when he was being cross-examined in the proceedings before me. The applicant’s solicitor, Mr Richards, confirmed that he did not pass on either of the letters to Mr Albanese. As regards the earlier letter, he said it “certainly would have conveyed that an offer for a position had been made” to Mr Albanese, but “nothing else” (transcript 11.02.04, page 76, line 19). Mr Richards was then asked whether he would have given Mr Albanese the detail of the job that was being offered to him, and he answered: “I can’t recall in detail. I certainly would have mentioned that there was a job.” (transcript 11.02.04, page 76, line 31). Mr Richards’ unfortunate omission to send Mr Albanese a copy of either of the two letters meant that Mr Albanese was not made aware of the careful attempts made by ACS to accommodate his various concerns, and he did not have the opportunity of reading for himself the explanations and assurances contained in the two letters concerned.
(b) When Mr Albanese was shown the letter for the first time in the course of his cross-examination, he said that what was in the letter was what was discussed in part in the conciliation conference, and he said he did nothing about the offer of the RSA because he took his lawyer’s advice. Counsel for the applicant submitted that the offer of the RSA position was made in the context of a conciliation conference, and it would be unfair to the applicant to find that suitable employment was available on the basis of legal advice the contents of which cannot be revealed to me by virtue of the confidentiality provisions of the Administrative Appeals Tribunal Act 1975 (Cth) s 34(3). It appears from Mr Albanese’s evidence that he understood that the offer of the RSA position should not be accepted because it did not adequately resolve the matters which had arisen out of the conciliation conference. I note in this regard that the letter of 5 August 2003 makes express reference to the prior conciliation conference and undertakings given at that conference. I am not, of course aware, and cannot be made aware, of what transpired at that conference, but I accept that the offer of employment in the RSA position was not interpreted by the applicant as a stand-alone offer of employment.
(c) In the circumstances outlined in paragraphs (a) and (b) above, I find that the letters of 5 August 2003 and 16 October 2003 did not accordingly dispel the perceptions which I find Mr Albanese continued to entertain as to his unfair removal from his former position of trust within the ACS, and his victimization and unfair treatment by the ACS, and the lack of any information or explanation as to the issues of security clearance. Further, the earlier offers of employment equally did not overcome Mr Albanese’s concerns and perceptions, for the reasons he explained in evidence.
(d) In addition, Dr Schembri considered that the applicant was incapacitated for work when he examined him on 11 September 2003, and the applicant’s general practitioner, Dr Cocchiaro, saw him on a regular basis, and also considered that he remained incapacitated for work, and issued certificates to this effect. I will now refer in detail to the medical evidence before me as to the issues of incapacity and its duration.
Medical Evidence
Evidence of Dr Cocchiaro
52. Dr Cocchiaro prepared a report dated 13 August 2003, a copy of which is exhibit A2. He confirmed in his report that he has been treating Mr Albanese in the capacity of his general practitioner since 1977, and that he had never previously had any psychological problems or the need for any psychotherapy or psychiatric treatment, or had any signs of any mental instability. In his evidence Dr Cocchiaro said that Mr Albanese had, until the consultations following the events on 1 November 2001, always been a very happy, friendly and co-operative person. The report confirms that Mr Albanese presented on 26 November 2001 and referred to problems with his employer in relation to security clearance, and goes on to say that Mr Albanese could not understand the reason why his security clearance had been suspended and he could not get any information from his employer, and could not understand any reason behind the decision. Dr Cocchiaro considered that Mr Albanese was definitely unable to attend his place of employment because of anxiety and panic in relation to his problem, and he gave him a certificate to that effect. He also prescribed some anxiolytics in the form of Xanax to assist with his anxiety symptoms. His report proceeds to describe subsequent consultations with Mr Albanese on various occasions subsequent to 26 November 2001, and records his diagnosis was that Mr Albanese suffered from an adjustment disorder with depressed mood, anxiety and panic attacks.
53. Dr Cocchiaro says in his report that in his opinion Mr Albanese was not fit for any type of work for which he had been trained, and he did not believe that he was fit for his pre-injury occupation unless a complete and total resolution was forthcoming, and even then it might be impossible for Mr Albanese to put “the insult” he had sustained behind him. Dr Cocchiaro added that because of Mr Albanese’s anxiety and depressive mood, it would be difficult for him to be able to interact appropriately with various employers.
54. It was apparent from the cross-examination of Dr Cocchiaro that he was unaware of or had not fully appreciated a number of aspects of the events which followed the 1 November 2001 meeting which precipitated Mr Albanese’s problems. However, Mr Albanese told Dr Cocchiaro at the consultation on 12 December 2002 that the difficulty with ACID access had been provisionally overcome, although it is not clear that Dr Cocchiaro was ever told that Mr Albanese had had his previous internal security level within ACS restored. Dr Cocchiaro was not aware of all of the facts surrounding the offers of employment made to the applicant or the offers by ACS to discuss Mr Albanese’s concerns with them, but as mentioned above, these offers did not dispel Mr Albanese’s perceptions. Further, Dr Cocchiaro’s evidence makes it clear that the applicant’s primary concern was that he had never received any explanation as to the reasons why his security clearance had been called in question. Dr Cocchiaro maintained his opinion, notwithstanding vigorous cross-examination, that the applicant remained unfit for work for this reason, even if other factors such as the security clearance issues had been resolved.
Evidence of Dr Schembri
55. The applicant’s solicitors referred him to Dr Charles Schembri for a medico-legal assessment of his psychiatric condition. They wrote to Dr Schembri on 20 August 2003 asking him to address some 10 issues, but their letter does not provide any background information relating to his claim for compensation (although, Mr Albanese apparently had brought with him a copy of a medical report dated 28 January 2003, which is exhibit R7). A copy of the briefing letter was admitted as exhibit A6. Dr Schembri’s resulting medical report was dated 17 September 2003, and was admitted as exhibit A3.
56. Notwithstanding the absence of any briefing details, Dr Schembri obtained a detailed history from the applicant which accords very closely with the evidence given by the applicant in the proceedings before me. His report also details Mr Albanese’s complaints, symptoms and reactions to the November 2001 meeting and subsequent events involving ACS. After referring to Mr Albanese’s interpretation of the relevant events as indicating that there must have been some suspicion as to his integrity but he was not given any reason or explanation, Dr Schembri’s report continues as follows (see exhibit A3, pages 7 – 8):
“Mr Albanese states that to date, he remains unable to get any satisfaction from his employer. He has been distraught by all that has happened. He describes a number of feelings that he has been subjected to, including agitation, anger, sadness and feelings of helplessness and hopelessness. He has entertained suicidal and murderous ideation, while he also describes a variety of somatic symptoms, with disturbances of his sleep and appetite, and some loss of weight.
Mr Albanese’s account and presentation are consistent with the diagnosis of an adjustment disorder with mixed emotions that seems precipitated by the events of November 2001 and perpetuated by the impasse that has continued to exist between him and his employer. Mr Albanese continues to feel that his integrity remains under a cloud. He feels fairly strongly that he deserves an explanation and an opportunity to see his integrity and his reputation restored. He feels somewhat positive about his career with the Customs Department and is desirous of returning to work for them, once the matter is resolved.
At present, Mr Albanese remains significantly agitated and preoccupied with his predicament, so that he is considered unfit for work at present … .”
57. In his oral evidence Dr Schembri confirmed the opinion he expressed in his report. It was explained to him that the applicant’s internal security level with ACS has been reviewed and confirmed, and also that the ABCI would no longer oppose an application by Mr Albanese to be given access to their database. When assessing Mr Albanese’s fitness to resume work, Dr Schembri considered that the above matters represented “progress”, but he regarded it as important that he should also have an understanding of what had happened in the past which could have caused problems with his security rating, and until then he would remain apprehensive about himself and insecure in his work and fear that people did not trust him, and those symptoms would result in a continuing diagnosis of adjustment disorder with mixed emotions and would continue to have a significant impact on his health.
58. In cross-examination, Dr Schembri agreed that if in addition to the resolution of the security clearance issues within ACS and entailing ACID access, Mr Albanese had been offered the RSA position as outlined in the letter of 5 August 2003, then some return to work “could have been negotiated” at that time, and that some “attempt to return to work certainly would have been feasible” at that time (transcript 10.02.04, page 56, lines 31 and 39). However, he also said (transcript 10.02.04, page 63, line 27):
“The overall impression I formed, and from what I’ve heard today is that, at the time I examined him, it would have been very difficult for him to have returned to work. Subsequently evidently certain things happened that would have made it a lot easier for him to consider a return to work but at the time I examined him, I would have had serious misgivings about his returning to work without prejudice to his health.”
59. Dr Schembri said further that whatever the position might have been regarding the offer of the RSA position as at 5 August 2003, if no position with ACS was available to the applicant at the time of the hearing, then that would have an impact on Mr Albanese’s psychological state and was likely to produce more agitation and more uncertainty. He also agreed that if the applicant had not been made aware at any time up to the day of the hearing of the reasons for the refusal of the ABCI to allow him to access their database, this would be a factor which would perpetuate his symptoms from the condition he had diagnosed.
Evidence of Dr Kutlaca
60. Dr Kutlaca examined the applicant at the request of the respondent on 28 January 2003 and provided a report of the same date to the respondent’s solicitors, which is exhibit R7. After setting out the history he obtained from Mr Albanese, Dr Kutlaca said that Mr Albanese outlined emotional symptoms of anger, distress, frustration, depression, fear, mistrust, helplessness and lack of concentration, and then recorded complaints of a variable appetite and marked increase in cigarette consumption, episodic diarrhoea and constipation, heartburn and initial insomnia. Dr Kutlaca made a diagnosis of an “Adjustment Disorder with Mixed Emotional Features”. He further considered that Mr Albanese was “probably unfit to resume his substantive position at this time, given the circumstances. He is probably also unfit for other work at his usual place of employment, given the same circumstances.” (exhibit R7, page 8). He also reported (see exhibit R7, page 8):
“It is doubtful in the extreme whether Mr Albanese could carry out his substantive duties at this time. It is also doubtful whether a trial of his pre-injury duties would be successful at this juncture. It requires the legal determination of his matter, one way or the other, before his return to work.”
61. In a letter dated 7 August 2003, the respondent’s solicitors requested Dr Kutlaca to provide a further report. In this letter, the respondent’s solicitors quoted a further extract from Dr Kutlaca’s earlier report in which the doctor expressed the opinion that Mr Albanese’s management was required to be legal rather than medical at that juncture. They also quoted two paragraphs only of Mr Albanese’s email dated 8 January 2002 to Mr Janeczko, namely the second and sixth paragraphs of that email (see paragraph 27 above where the full text of the email is set out). The respondent’s solicitors then said:
“It appears to us from his response that as at 8 January 2002 and subsequently, it may be that the applicant was and is able to work but refused to return to any position other than his former substantive position (or presumably a similar position), as a matter of principle.” (see exhibit R9).
62. Dr Kutlaca then provided a further report dated 12 August 2003, in which he reiterated the brief extracts from the above email of 8 January 2002 (which he incorrectly referred to as a “statement by Mr Albanese dated 3/1/02”). He then reported that from “the statement of Mr Albanese cited above, it appeared that he was more unwilling than unable to work at that time” and that he had declined to accept offers of employment for reasons of principle, rather than from an inability to work. He further reported that it would appear that Mr Albanese’s continuing absence from work had probably had “more to do with his unwillingness to do so than a psychiatric disorder”, and he referred to a “narcissistic component” to his personality which he had not assessed in his examination. Dr Kutlaca further considered that on the basis of Mr Albanese’s above responses, he would have been able to perform his normal duties as they were before the injury, leaving aside the issue of the security clearance.
63. Prior to giving evidence before me, Dr Kutlaca was provided with a copy of further documentary material under cover of a further letter from the respondent’s solicitors dated 4 February 2004. A copy of this letter and its enclosures was received in evidence as exhibit R9. The enclosures to this letter are listed, commencing on page 2, and the letter also includes a brief reference to the enclosures and, in some cases, extracts from the enclosures. These enclosures included a copy of the letter of 5 August 2003 offering Mr Albanese the RSA position.
64. In his evidence before me, Dr Kutlaca confirmed the opinion he expressed in his later report of 12 August 2003, and maintained this opinion notwithstanding the full text of Mr Albanese’s email of 8 January 2002, which he said he had read before giving evidence, it being one of the enclosures included with the letter to him from the respondent’s solicitor of 4 February 2004.
Consideration
65. In order to determine the issue of liability under s 14 of the Act, it is necessary to determine whether the applicant suffered an injury as defined, and also whether the injury has resulted in incapacity for work.
66. On the evidence before me, I find that the applicant suffered from an adjustment disorder with mixed emotions, as diagnosed by Dr Schembri, in consequence of the events on 1 November 2001, and their aftermath. I further find that this psychological disorder constituted a condition that is “outside the boundaries of normal mental functioning and behaviour” (see Comcare v Mooi (1996) 69 FCR 439 at 444) and constituted an “ailment” within the meaning of that word in s 4(1) of the Act. It would also constitute a “disease”, and therefore be included in the definition of “injury”, if it was contributed to in a material degree by the applicant’s employment by ACS, and not excluded from that definition by the concluding exclusionary provisions of the definition.
67. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323, the Full Federal Court said when considering the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the “1971 Act”):
“The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
This case is treated as authoritative on the meaning of the word “material” when interpreting the reference to that word in the 1988 Act : Suters v Australian Postal Corporation (1992) 28 ALD 320, and see also Wiegand v Comcare (2002) 72 ALD 795 at [23].
68. Wiegand (supra) is also relevant to the present matter, as it is an important authority in circumstances where a claimant asserts that he or she has been victimized in the workplace. In that case, von Doussa J decided that it was not appropriate to consider the reasonableness or otherwise of this perception, provided that the events on which the perception was based had, in fact, occurred. His Honour said (at [31]):
“In my opinion it was open on the evidence for the tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
69. I now turn to the conflict of evidence between Drs Cocchiaro and Schembri on the one hand and Dr Kutlaca on the other hand.
70. Counsel for the respondent submitted that I should prefer Dr Kutlaca’s evidence to that of Dr Schembri, particularly because Dr Kutlaca had been provided with all available documentary material. I note, however, that upon first examining the applicant, Dr Kutlaca recorded essentially the same symptoms as had been observed by Drs Cocchiaro and Schembri, and he arrived at a diagnosis which was later essentially confirmed by Dr Schembri. Dr Kutlaca reversed his earlier diagnosis and opinion as to incapacity without, however, re-examining the applicant, and after receiving the letter from the respondent’s solicitors of 7 August 2003. This letter quoted selectively from Mr Albanese’s email of 8 January 2002. In my view, other portions of the email were important and tended to support Dr Kutlaca’s earlier diagnosis and opinion, as well as the opinions expressed by Drs Cocchiaro and Schembri. The omitted parts confirm Mr Albanese’s concern about the lack of any accusations or evidence to prove any misconduct and his concern that a move from the joint targeting team was unjustified, as well as his pride in his work history and relationship with other agencies, his sense that he was being victimized and persecuted by ACS for no apparent reason, and that his GP had at that time certified that he was unfit for work. These matters are consistent with Mr Albanese’s evidence before me, and the history he gave to Dr Kutlaca himself on examination, as well as to Dr Schembri. The reference in Dr Kutlaca’s second report to the short selected portions of the email seem to me to have presented an incomplete and distorted picture, and led to Dr Kutlaca revising his earlier unequivocal diagnosis notwithstanding that he did not re-examine the applicant and ask him, if necessary, to clarify matters arising from the full text of the email and the circumstances in which it was written, and then re-assess his diagnosis and opinion. Whilst Dr Kutlaca confirmed his revised opinion in his evidence and had by then been provided with the full text of the email as well as considerable further material, he had still not re-examined the applicant. It is not clear that Dr Kutlaca was aware of the circumstances surrounding the offers of employment as outlined in paragraph 50 above. Further, it seems to me that he placed insufficient weight on the applicant’s concern about the absence of any explanation as to the issues of security, and was not in a position to adequately assess the relevance of the offers of employment by the ACS, having regard to my earlier findings about that aspect.
71. I prefer the evidence of Drs Schembri and Cocchiaro to that of Dr Kutlaca. Dr Cocchiaro had the benefit of seeing and treating the applicant on a regular basis throughout the period from late November 2001 up to the date of the hearing, and was in a position to compare his psychological condition over this period with his psychological condition before the events which commenced with the meeting on 1 November 2001. Whilst neither Dr Cocchiaro nor Dr Schembri were given the relevant documentary material, they were able to obtain a detailed history of relevant events from the applicant. I find that the resolution of the issues of security clearance and the applicant’s eventual knowledge of those matters, and the offers of employment by ACS did not resolve the applicant’s psychological disorder, or his incapacity for work. A primary factor in the development of his psychological disorder and the continuation of it was that the applicant has never been informed of the reasons why he was declined access to ACID, and this led to his continuing anger, mistrust, frustration and uncertainty. Further as mentioned above, it is not clear in any event that the offer of the RSA position would have restored the applicant’s perception of victimization and loss of reputation and integrity, because of the factors referred to in paragraph 50 above; and the other positions offered to him had clearly not overcome these difficulties. I find that the applicant’s psychological disorder was contributed to in a material degree by his employment by ACS. I further find that his perception that he has been victimized by ACS and that his personal integrity and reputation has been grievously prejudiced have persisted, and that as a result, he has been incapacitated for work for the period from when he first saw Dr Cocchiaro on 26 November 2001 until the conclusion of the hearing. I am, of course, unable to say what his position has been since then. I reject the submission of the respondent that the applicant did not suffer an injury that prevented him from returning to work or required medical treatment, and I also reject the alternative submission that if the applicant did suffer an injury, the respondent is not liable to pay compensation because it did not result in an incapacity for work or impairment.
Exclusionary Provision
72. The respondent argued that the applicant’s injury arose as a result of a failure to obtain a promotion, transfer or benefit, and so the exclusionary provisions in the definition of “injury” applied to the applicant’s condition. However, Mr Albanese had already been appointed to his new role with the joint targeting team one month before the meeting on 1 November 2001 when he was told about the denial of access to the ABCI database (and consistently with this, he was told by Mr Janeczko at that meeting that he could not “continue” in the job - transcript 11.02.04, page 36, line 12). In these circumstances, I consider that the applicant did not fail to “obtain” the transfer to the joint targeting team; it was already a fait accompli. I refer in this regard to Re Davill and Australian Postal Corporation (AATA 10629, 22 December 1995) where the applicant suffered from a major depressive illness largely contributed to by the prospect of the down grading of his job in a restructure. The Tribunal decided that the exclusionary provision did not apply in these circumstances, and said at [22]:
“It cannot be said that the down grading of the Applicant’s position was the failure to obtain benefit. The Tribunal does not see how the word “obtain” can be extended so as to include the retaining of a benefit (ie, the maintenance of his existing position) and thus the Applicant’s claim cannot be defeated on the ground that he failed to obtain a benefit.”
This was also the interpretation given to the concept of obtaining a benefit by Finn J in Comcare v Ross [1996] 680 FCA 1.
73. I find that on the facts of the present matter, the applicant’s psychological disorder developed not as a result of his failure to obtain the transfer to the joint targeting team, since he had by then attained that position; rather, his disorder developed as a result of the applicant being directed to move from that position, and the consequences of that directive, including his reaction to the effect on his reputation and integrity and the lack of an explanation for the denial of ACID access.
74. I further find on the evidence before me that the transfer to the joint targeting team did not constitute a promotion or a benefit. The applicant remained a Level 3 employee, and there was no increase in his remuneration as a result of joining the joint targeting team. The obtaining by the applicant of ACID access would not be a benefit to him; it was simply a necessary incident of his work in the joint targeting team. He did not suffer any loss of income or reduction in classification as a result of not having ACID access. It was something which he needed when performing some roles within the ACS as a Level 3 employee, but not in other roles as a Level 3 employee.
75. Even if I am wrong in my conclusion that the failure of Mr Albanese to retain his position with the joint targeting team or his failure to reverse the denial of his ACID access did not amount to a failure to obtain a promotion, transfer or benefit in connection with his employment, I further consider that the exclusionary provision would not apply in any event. This is because, as I have found, a significant cause of the onset and continuance of the applicant’s psychological disorder was the affront to his integrity and reputation, and the continuing failure to give him any explanation as to the reasons for the querying of his security level and ABCI access. I refer in this regard to Trewin v Comcare (1998) 84 FCR 171, where Heerey J, after citing from Drummond J’s decision in Comcare v Mooi (supra), said (at page 176D):
“It is implicit in Drummond J’s reasoning that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of ‘injury’ were satisfied, the claim would succeed.”
76. For all of the above reasons, I find that the exclusionary provisions in the definition of “injury” do not apply to the applicant’s psychological disorder.
77. I note that counsel for the applicant concludes her submissions with the statement that the applicant is keen to return to work, and it may be that a “proper mediation” with his employers and/or a return to a different employer but in similar duties could be explored in order to achieve resolution of Mr Albanese’s ongoing problem; and the applicant sincerely hopes that this door remains open “(d)espite any findings of the Tribunal.” In this regard, I note that the relationship between the applicant and ACS has undoubtedly been rendered very difficult by allegations made by the applicant in an email dated 29 January 2004 to Mr Lionel Woodward, the Chief Executive Officer of ACS (exhibit R6). However, I have endeavoured in these reasons to set out in some detail the history of this matter, and the chain of events which, on my findings, have unfortunately perpetuated the applicant’s reaction to the totally unexpected and distressing issues with which he was confronted at the meeting on 1 November 2001. The applicant should now understand, as a result of the evidence in these proceedings, that he cannot be told what the allegation was which led to his ACID access being denied (notwithstanding Ms Lynch’s attempts to obtain from ABCI some advice as to what ACS would tell him as to the reason for the denial of ACID access). In addition, Mr Albanese should now be fully aware that the new RSA position described in the letter of 5 August 2003 (leaving aside any issues arising from the conciliation/compensation process, of which I am unaware) constituted a careful attempt by ACS to meet his concerns. Further, ACS and the respondent should now understand the circumstances which delayed the applicant’s response to the attempts by ACS to proceed with the review of the applicant’s internal security clearance, and his failure to accept the offer of the RSA position and the offer of assistance in the follow-up letter of 16 October 2003, (although I am unable to comment further on these matters because of their apparent relationship to the conciliation process).
78. The issues before me in the current proceedings relate to the liability of the respondent for compensation which is imposed by s 14 of the Act. The effect and relevance of s 14 was explained in the recent matter of Re Liu and Comcare [2004] AATA 617, where the Tribunal (constituted of Downes J, Deputy President Handley and Senior Member Allen) reviewed the terms of a consent order to set aside a reviewable decision which purported to exclude the respondent’s future liability to pay compensation. At the outset of its decision, the Tribunal considered the structure of Part II of the Act, and pointed out that s 14 does not address categories of compensation or quantification of compensation, and that those matters were left to other sections of the Act. The Tribunal continued:
“[2] A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been deemed to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation.”
79. In the present matter, issues arising from the offer of the RSA position, and perhaps the belated rehabilitation meeting, may need to be considered under s 19 of the Act in assessing the applicant’s entitlement to incapacity payments. This may involve a consideration of the circumstances in which the offer of the RSA position was made by ACS, and its relationship to the conciliation conference, or whether (as the respondent contended) the offer was a stand-alone offer capable of acceptance in its own right. However, these issues were not fully canvassed before me, and in any event, I have no jurisdiction to deal with any such issues in the present proceedings (Lees v Comcare (1999) 56 ALD 84). Nevertheless, I hope that these reasons for decision may assist the parties to understand each other’s point of view, and that they may assist some ultimate resolution of the difficult issues which have arisen.
Decision
80. For the above reasons:
(a)I set aside the decision under review, and in substitution for that decision decide that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;
(b)I reserve liberty to apply within 14 days in relation to the costs of the proceedings; and
(c)I order that in the absence of any such application the respondent pay the costs of the proceedings.
I certify that the 80 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 9, 10 and 11 February 2004
Date of Decision 21 July 2004
Counsel for the Applicant Ms L Walker
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr S Stretton
Solicitor for the Respondent Sparke Helmore
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