Re Whitlock and Comcare
[2020] AATA 1353
•18 May 2020
Whitlock and Comcare (Compensation) [2020] AATA 1353 (18 May 2020)
Division:GENERAL DIVISION
File Number(s): 2018/1138
Re:Jessica Whitlock
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:18 May 2020
Place:Canberra
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
........................................................................
Senior Member Linda Kirk
Catchwords
WORKERS’ COMPENSATION – psychological condition – whether the applicant suffered an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of section 4 of the Safety, Rehabilitation and Compensation Act 1988 – whether the applicant’s employment contributed, to a significant degree, to her ailment or aggravation of an ailment such that she suffered a disease pursuant to section 5A of the Safety, Rehabilitation and Compensation Act – whether that disease is not an injury by reason of section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 – applicant’s employment did not significantly contribute to the applicant’s disease – Tribunal does not need to consider whether section 7(7) is applicable – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 7, 14
Cases
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fletcher and Comcare [2015] AATA 430
Havnen and Comcare [2010] AATA 535
Knox and Comcare [2019] AATA 2196
Mellor and Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
Rutledge and Comcare [2011] AATA 865
Skobelkin-Mulcair and Comcare [2019] AATA 1054
Stefaniak and Comcare [2019] AATA 1866
Tippett v Australian Postal Corporation [1998] FCA 335
Williamson and Comcare [2019] AATA 4774
Wood and Comcare [2019] AATA 981REASONS FOR DECISION
Senior Member Linda Kirk
18 May 2020
Ms Jessica Whitlock (‘the Applicant’) was born in 1993. She commenced employment as a Security Officer at Parliament House (‘the Position’) with the Department of Parliamentary Services (‘the Department’) on 9 May 2016.
On 1 August 2017, the Applicant lodged a workers’ compensation claim stating that she had sustained ‘depression and anxiety’ as a result of being ‘bullied through rumours, isolated from co-workers and management through rumours, treated differently by management’.[1] The Applicant reported that she first noticed her symptoms/injury in November/December 2016.
[1] Exhibit R2, T3, 16-21.
By determination dated 7 December 2017, Comcare (‘the Respondent’) denied liability for ‘aggravation of post-traumatic stress disorder’ and ‘aggravation of major depressive disorder’ sustained on 16 February 2017. The delegate was not satisfied that the Applicant’s psychological condition was contributed to, to a significant degree, by her employment with the Department. The delegate also found that subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) operated to exclude the claim for compensation.
By letter dated 7 February 2018 the Applicant (via her mother), requested a reconsideration of the determination dated 7 December 2017.
By a decision dated 2 March 2018, the Respondent affirmed the determination dated 7 December 2017 to decline liability under section 14 of the SRC Act in respect of the Applicant’s claimed psychological condition (‘the Reviewable Decision’).[2]
[2] Exhibit R2, T42, 191.
On 8 March 2018, the Applicant lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal on the basis that ‘the decision is wrong’.[3]
[3] Exhibit R2, T1, 8.
The application was heard by the Tribunal at a hearing in Canberra on 9 and 10 September and 13 December 2019. The following witnesses gave oral evidence at the hearing:
·the Applicant;
·Mr Christopher Cross;
·Mr Marc William Barsley;
·Ms Teall Cherie McQueen;
·Mr Mark Daniel Aston;
·Dr Deepinder Miller;
·Dr Yvonne Skinner;
·Dr Ambreen Ali; and
·Ms Rebecca Lockett.
The following documents were before the Tribunal:
·Statement of the Applicant dated 6 December 2018 (Exhibit A1);
·Respondent’s section 37 documents (T1-T63) (Exhibit R2);
·Respondent’s section 38AA documents (T64-148) (Exhibit R3);
·Applicant’s Amended Statement of Facts, Issues and Contentions (‘SFIC’) dated 29 May 2018;
·Respondent’s Amended SFIC dated 6 June 2018;
·Respondent’s Outline of Closing Submissions dated 13 December 2019;
·Applicant’s Submissions Relating to Section 7(7) of the SRC Act dated 13 December 2019;
·Medical Report of Ms Teall McQueen dated 4 September 2019 (Exhibit A2);
·Medical Report of Dr Deepinder Miller dated 10 September 2018 (Exhibit A3);
·Supplementary Medical Report of Dr Deepinder Miller dated 22 July 2019 (Exhibit A4);
·Witness Statement of Suzanne Mooney dated 12 November 2019 (Exhibit A5);
·Witness Statement of Dennis Grubb dated 19 August 2019 (Exhibit A6);
·Witness Statement of Scott Moloney dated 9 September 2019 (Exhibit R1);
·Witness Statement of Chris Cross dated 16 July 2018 (Exhibit R4);
·Witness Statement of Marc Barsely dated 11 July 2018 (Exhibit R5);
·Witness Statement of Mark Aston dated 27 June 2018 (Exhibit R6);
·Medical Report of Dr Yvonne Skinner dated 23 October 2018 (Exhibit R7);
·Witness Statement of Dr Ambreen Ali dated 20 November 2019 (Exhibit R8);
·Bundle of documents extracted from the summonsed material totalling 173 pages (Exhibit R9); and
·Witness Statement of Rebecca Lockett dated 11 November 2019 including attached Incident Report Form (Exhibit R10).
LEGISLATIVE FRAMEWORK
SRC Act
An employee’s entitlement to compensation under the SRC Act is conferred by section 14(1) which provides that 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.
‘Injury’ is defined in section 5A of the SRC Act:
(1)…
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
A ‘disease’ is defined in section 5B of the SRC Act to mean, so far as this case is concerned:
(1)…
(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.
An ‘ailment’ is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ is defined in section 4 of the SRC Act to include acceleration or recurrence.
Section 7(7) of the SRC Act provides:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
ISSUES FOR DETERMINATION
The issues relevant to the determination of the application for review are as follows:
1)Did the Applicant suffer an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of section 4 of the SRC Act?
2)Did the Applicant’s employment contribute, to a significant degree, to her ailment or the aggravation of the ailment such that she has a ‘disease’ under section 5B(1) of the SRC Act?
3)If the Applicant suffered a ‘disease’, is this not an ‘injury’ for the purposes of section 5A(1)(a) of the SRC Act, by reason of section 7(7) of the SRC Act?
EVIDENCE BEFORE THE TRIBUNAL
Background and family history
The Applicant’s parents separated in 1997 when she was four years old.[4] Her mother re-partnered in about 2001. The Applicant’s relationship with her stepfather was initially strained. She told Dr Lev Fridgant that she has never accepted him in any parental role.[5] Dr Jocelyn Howe reported that the Applicant has a “difficult relationship” with her stepfather.[6] The Applicant told the Tribunal that she and her stepfather are now ‘really close.’[7]
[4] Exhibit R9, 7.
[5] Exhibit R9, 47.
[6] Exhibit R9, 1.
[7] Transcript, 9 September 2019, 80.
The Applicant’s father moved to Sydney after the breakup and remarried.[8] In 2008 he moved to Wollongong, following which the Applicant’s contact with her father decreased from what were previously monthly visits.[9] She suffered feelings of abandonment from this time.[10] The Applicant told the Tribunal that she cannot remember when her contact with her father decreased. She thinks it was when she was aged about 10 years, ‘at some point in high school.’[11]
[8] Exhibit R9, 7.
[9] Exhibit R9, 7.
[10] Exhibit R9, 7.
[11] Transcript, 9 September 2019, p 79.
The Applicant’s family history includes mental health issues, affecting her mother, maternal grandfather and three of her mother’s siblings.[12] On 20 January 2015, Professor Scott Henderson reported that the Applicant’s mother: ‘is treated for depression and anxiety, having been discharged from the Services for this.’[13] On 18 February 2009 Dr Howe reported that: ‘Jessica has a strong family history of depression and anxiety with her mother requiring medication, frequent hospital admissions and long term psychological counselling’.[14]
[12] Transcript, 9 September 2019, p 75, 80, 94 and 95.
[13] Exhibit R9, 68.
[14] Exhibit R9, 1.
The Applicant told the Tribunal that she did not know the details of her family members’ illnesses, but knew these included depression and anxiety.[15] She did not know about her mother’s five admissions to Hyson Green,[16] and when her mother stopped working due to depression they were just told she was ‘ill’.[17]
[15] Transcript, 9 September 2019, p 75.
[16] Exhibit R9, 7.
[17] Transcript, 9 September 2019, p 80.
In about 2004, when the Applicant was ten years old, a man broke into her family’s house. She and her brother were home at the time and were being looked after by their father. She heard something in her mother’s room and she walked in and saw a man going through her mother’s jewellery box. He saw her and grabbed her at the top of her shirt and tried to pull her towards the window. Her father heard the noise and came towards the room. The man grabbed a case with paperwork in it and left.[18]
[18] Transcript, 9 September 2019, 21.
In about 2007, when the Applicant was 14 years old, she was the victim of a sexual assault.[19] She was told by her attacker that if she told anyone about the assault, he would find her and she ‘wouldn’t be so lucky to get away as [she] was the first time’, and she believed him.[20] She did not reveal to anyone what had happened to her until after she turned 18.[21] The ‘attack made [her] feel vulnerable and unsafe’.[22] It stopped her ‘connecting with people as easily as [she] did previously.’[23]
[19] Exhibit A1, [3].
[20] Transcript, 9 September 2019, 20.
[21] Exhibit A1, [3].
[22] Exhibit R2, T13, 84.
[23] Transcript, 9 September 2019, 21.
Medical conditions and treatment – 2009 to 2012
The Applicant received medical advice and/or treatment in respect of various mental health and other issues during the period 2009 to 2012.
On 18 February 2009, the Applicant was referred by Dr Jocelyn Howe, general practitioner at the Junction Youth Health Service, to a psychologist for counselling, including about anxiety. Dr Howe referred to difficulties with the Applicant’s sleeping and concentration and stated: “Last year Jessica’s anxiety became so distracting that it was preventing her from learning new work … I wrote a letter to the school to help her complete her year 9 studies last year. Jessica also admitted to having symptoms of an eating disorder … In summary, Jessica has depression and anxiety…”.[24]
[24] Exhibit R9, 2.
The Applicant attended sessions with Dr Angelique Jerga, clinical psychologist in 2009, following a referral from her general practitioner, Dr Michelle Barrett. Dr Jerga’s report dated 10 March 2009 provides in part ‘Jessica reports symptoms of depression and anxiety…’. [25] The Applicant told the Tribunal she does not recall seeing either Dr Barrett or Dr Jerga, nor being told that she was being treated for depression.[26]
[25] Exhibit R9, 3.
[26] Transcript, 9 September 2019, 77.
On 27 May 2010, the Applicant applied for special consideration in respect of her year 11 mid-term exams due to psychological issues.[27]
[27] Transcript, 9 September 2019, 77.
On 8 June 2010, Dr Caroline Luke, general practitioner, prepared a Mental Health Care Plan for the Applicant, recording her K10 score as 41/50.[28]
[28] Exhibit R9, 173.
On 7 September 2010, the Applicant was diagnosed by Dr Phillip Jeans, gastrointestinal surgeon, with a gallstone and low-grade cholecystitis. She had surgery on 29 November 2010 and was discharged on 30 November 2010. The discharge referral to her GP states that her ‘other active conditions’ are ‘hypo-thryroidism and anxiety/depression’.[29]
[29] Exhibit R9, 28.
The Applicant presented to the Canberra Hospital Emergency Department on 12 September 2010 reporting abdominal pain as well as suicide and self-harming thoughts. She ‘… divulged recent thoughts of self-harm and suicidal ideation stating that she has been down for some time.’[30] The Applicant told the Tribunal she does not remember presenting at the Canberra Hospital nor telling the intern that she had a history of anxiety and depression and was seeing a psychologist fortnightly.[31]
[30] Exhibit R9, 4.
[31] Transcript, 9 September 2019, 77.
On 16 September 2010, the Applicant described ‘feelings of depression’ to Dr Jeans, and it was noted by him that she had an appointment with a psychiatrist ‘from CAMHS’ on 8 October 2010 and ‘is seeing psychologist’.[32]
[32] Exhibit R9, 173.
The Applicant was admitted to the Child and Adolescent Mental Health Service (CAMHS) on 26 November 2010 and participated in Supporting Young People Through Early Intervention and Prevention Strategies (STEPS), a ‘voluntary Mental Health residential program providing support to young people for a period of up to 3 months’.[33] The Applicant was discharged from CAMHS on 1 December 2010. The Applicant told the Tribunal she remembers attending the STEPS program at this time.[34] She recalls that ‘it was an in-stay program and they helped encourage you back to school and get you into a normal routine.’ She cannot remember whether they told her about depression and anxiety.[35]
[33] Exhibit R9, 172; Transcript, 9 September 2019, 79.
[34] Transcript, 9 September 2019, 82.
[35] Transcript, 9 September 2019, 83.
On 6 April 2011, the Applicant was prescribed the anti-depressant medication Cipramil, by Dr Michelle Barrett, general practitioner.[36] On 23 May 2011, the Applicant was prescribed the anti-depressant medication Effexor XR by Dr Caroline Luke, general practitioner. The clinical notes record ‘long history of anxiety, panic attacks not helped.’[37] The Applicant told the Tribunal she remembers taking medications in addition to Thyroxine for her thyroid condition, but she is not sure what these other medications were, and she did not ask her doctor what condition these medications were to treat.[38]
[36] Exhibit R9, 172.
[37] Exhibit R9, 171.
[38] Transcript, 9 September 2019, 78, 88.
The Applicant continued to correspond with CAMHS in respect of her mental health and was allocated a clinical manager, Mr Keith Baker, on 8 June 2011. During this period, it was intermittently reported that the Applicant demonstrated evidence of suicidal intent, anxiety and depression.[39]
[39] Exhibit R9, 40, 45.
On 7 June 2011, the Applicant presented to the Canberra Hospital Emergency Department ‘with overwhelming thoughts of suicide’.[40]
[40] Exhibit R9, 31-34.
On 8 June 2011 Dr Barrett wrote to Dr Claire Pattison, psychiatrist at the CAMHS, and reported that the Applicant had ‘been extremely anxious and depressed’, and listed the Applicant’s medical problems as including ‘anxiety with depression’.[41] On 17 June 2011, Dr Pattison reported to Dr Barrett that the Applicant presented over the weekend to the emergency department with ‘a small overdose’.[42]
[41] Exhibit R9, 35-37.
[42] See also Emergency Department discharge letter dated 13 June 2011.
The Applicant attended on Dr Lev Fridgant, psychiatrist, on 7 September 2011 and 24 November 2011. Dr Fridgant reported that the Applicant experienced issues with agoraphobia and depression. His report of 7 September 2011 refers to her ‘… problems with panic attacks and probably agoraphobia. Various people including the boyfriend is charged with the task of becoming a “phobic companion’…[43] He reported that ‘she benefited greatly from Seroquel 50mg at night and Luvox 100mg per day. Her panic attacks were predominantly under control, only recently becoming worse with interpersonal conflict with her mother.’[44]
[43] Exhibit R9, 47.
[44] Exhibit R9, 47.
The Applicant told the Tribunal she remembers seeing Dr Fridgant as her ‘moods were going up and down and he said that that was quite normal for someone [her] age at the time.’[45]
[45] Transcript, 9 September 2019, 22.
On 21 May 2012, the Applicant reported to Dr Barrett that she ‘does not have panic attacks frequently’.[46]
[46] Exhibit R9, 167.
Early employment
In mid-2011 the Applicant was working in a bakery in Garran for five hours a day as a casual shop assistant.[47]
[47] Transcript, 9 September 2019, 22.
Between 2013 and 2016 the Applicant was employed by a catering organisation, Intercontinental Hotels Group (IHG), working at Parliament House.[48] The Applicant was initially employed as a casual food and beverage attendant. She told the Tribunal she was ‘part of the wait staff team on functions ranging from 25 to 800 and … part of the setup and pack down team as well.’[49] She was later promoted to Team Leader and was in charge of the smaller functions, or was paired with the supervisor and a manager to help them run larger functions.[50]
[48] Exhibit A1, [3].
[49] Transcript, 9 September 2019, 23.
[50] Transcript, 9 September 2019, 24.
When applying for the role with IHG, the Applicant completed an application form dated 15 March 2013 which required her to answer various questions. In response to the question: ‘[a]re you aware of any physical or health conditions that would prevent you from performing the inherent requirements of the position sought?’, the Applicant answered ‘No’.[51]
[51] Exhibit R2, T7, 6.
Due to the nature of her employment, the Applicant’s working hours were often quite long and involved early mornings and late nights. The Applicant told the Tribunal that the hours were irregular because of the sitting calendar, and during sitting weeks she would work up to 12 or 13 hours a day.[52] She said that a ‘common factor’ of her work in this job was ‘poor sleep’.[53]
[52] Transcript, 9 September 2019, 23.
[53] Transcript, 9 September 2019, 24.
A Parliament House Incident Report dated 26 February 2014 records that the Applicant suffered a panic attack at work and her mother was called.[54] She was escorted to the car park and her mother administered half a tablet of Valium and then took her off site.[55]
[54] Exhibit R9, 86, 88.
[55] Exhibit R9, 49-54.
At the end of 2015, the Applicant and her colleagues learned IHG’s contract had expired and the new catering contract was going up for tender. This meant that if IHG lost the contract, the employees at IHG Parliament House would potentially be out of work.[56]
[56] Transcript, 9 September 2019, 31.
In January 2016, the Applicant was promoted to Assistant Banquets Manager. She was the head of the department underneath the director. Her position was ‘the last call for anything within banquets’ and she attended payroll meetings. She had responsibility for implementing operating procedures. She was comfortable with the extra workload and the additional responsibility.[57]
[57] Transcript, 9 September 2019, 32.
The Applicant ceased full-time employment and returned to casual employment with IHG in around April 2016. At the time she wanted job security, and she chose to leave her job in May 2016 ‘because there was no guarantee of continued employment.’[58]
[58] Transcript, 9 September 2019, 32.
Medical conditions and treatment – March 2013 to April 2016
Dr Michelle Barratt at the Hughes Family Practice was the Applicant’s general practitioner from March 2013 to 23 May 2014. On 12 February 2014 she recorded in the clinical notes that the Applicant ‘… has had poor sleep for some weeks - review to discuss this and her known anxiety.’[59] On 19 February 2014 the notes record ‘ … has been managing mood and sleep without medication for some time.’[60]
[59] Exhibit R9, 165.
[60] Exhibit R9, 165.
On 23 May 2014, Dr Ambreen Ali became the Applicant’s general practitioner at the Hughes Family Practice.[61] Her last consultation with the Applicant was on 17 June 2016, after which Dr Ali left the practice.
[61] Exhibit R8, [2].
The Applicant, accompanied by her partner Matt, saw Dr Ali on 23 May 2014 in relation to her sleep issues.[62] The clinical notes for this date record ‘… Matt’s uncle is a psychiatrist and is currently visiting them. They have discussed pt case with him at length, pt took mother’s Imovane with OK effect.’[63]Dr Ali prescribed the Applicant 30 Imovane tablets and provided her with a referral to Dr Saidul Ansary at the Canberra Sleep Clinic.[64]
[62] Exhibit R8, [6].
[63] Exhibit R9, 164.
[64] Exhibit R8, [7].
In a letter dated 12 June 2014 to Dr Ali, Dr Ansary wrote:
I have advised Jessica to see you to obtain a Mental Healthcare Plan to Psych sessions with Canberra Sleep Clinic for a multidisciplinary management plan for insomnia and anxiety disorder.[65]
[65] Exhibit R9, 56.
The Applicant was asked during cross-examination whether she remembers this appointment with Dr Ansary. She said that she did not recall being told she should get a mental healthcare plan.[66]
[66] Transcript, 9 September 2019, 85.
On 2 July 2014, the Applicant attended a consultation with Dr Ali. The clinical notes record ‘… has agreed for MHCP … will consider trialling SSRI once starts psychology sessions.’[67]
[67] Exhibit R9, 164.
On 11 July 2014, a Mental Health Care Plan was completed and signed by the Applicant.[68] The Applicant’s K10 result was 45/50.[69] To complete the K10, the Applicant was required to fill in an ‘x’ in the space provided in relation to the following symptoms in the past four weeks leading up to 11 July 2014. The Applicant gave the following relevant responses:
[68] Exhibit R9, 63-65; 164.
[69] Exhibit R9, 62.
“Q3. About how often did you feel so nervous that nothing could calm you down?
A3. Most of the time.
Q4. About how often did you feel hopeless?
A4. Most of the time.
Q5. About how often did you feel restless or fidgety?
A5. All of the time.
Q6. About how often did you feel so restless you could not sit still?
Q7. All of the time.
Q8. About how often did you feel depressed?
A8. All of the time.
Q10. About how often did you feel worthless?
A10. All of the time.”
In her written statement, Dr Ali explained that Mental Health Care Plans are fully completed in the patient’s presence, and the patient must be provided with a copy and usually a referral.[70] In relation to providing the Applicant with a diagnosis of her condition, Dr Ali stated:
Even in such a sensitive situation the diagnosis would be discussed. I note that on 12 February 2014 and 19 February 2014 Dr Michelle Barrett notes "known anxiety" and "managing mood and sleep without medication for some time". As a medical practitioner even with a traumatic situation we do call it what it is and here it was an anxiety condition. It was not limited to sleep issues and I thought the anxiety condition needed its own treatment, which in turn may possibly help with [the Applicant’s] sleep. I would have definitely talked to [the Applicant] about the diagnosis. I would have explained the diagnosis of an anxiety condition and elements of depression. This relates to the discussion of an SSRI which is an antidepressant/anti-anxiety medication. This is not a sleep medication.[71]
[70] Exhibit R8, [11].
[71] Exhibit R8, [10].
On 24 July 2014, the Applicant attended Dr Ali again for a long consultation. She reported that she did not attend work that day due to experiencing a panic attack that morning. She also reported that she ‘has occasional suicidal thoughts’ but ‘no plan’, and requested ‘to see psychologist at CPRU.’[72]
[72] Exhibit R9, 164.
The Applicant commenced sessions with psychologist, Mr Andrew Staniforth. Mr Staniforth provided a number of reports to Dr Ali, including a report dated 12 September 2014 after their third consultation, and a report dated 24 October 2014 after their sixth consultation.[73] That report refers to the Applicant speaking often of her ‘workplace demand and stress’.[74] The Applicant told the Tribunal she remembers seeing Mr Staniforth, but does not recall what they spoke about.[75]
[73] Exhibit R9, 66-67.
[74] Exhibit R9, 66.
[75] Transcript, 9 September 2019, 86.
On 24 October 2014, the Applicant, accompanied by her partner Matt, saw Dr Ali. The clinical notes record ‘… tough situation with home/work speaking with direct boss … seeing psychologist – cont psychology rev next consult – will broach subject referral to psychiatrist …’.[76]
[76] Exhibit R9, 163.
On 7 November 2014, the Applicant saw Dr Ali for a long consultation. Dr Ali’s clinical notes record ‘Presents for MH review … K10 47 out of 50 seeing psychologist today’. The Applicant reported that she had ‘attempted to run car into a pole [a] few weeks ago’.[77] The Applicant consented to a referral to the Woden Mental Health Service as ‘an alternative form of treatment, because it seems her relationship with the psychologist was not really progressing’.[78] Dr Ali was concerned that the Applicant ‘wasn’t improving despite receiving treatment.’[79] In her opinion, the Applicant’s problems
were certainly more than just sleep. She was obviously suffering from agoraphobia and significant anxiety and depression as she required a support person for her appointments.[80]
[77] Exhibit R9, 163.
[78] Exhibit R8, [15].
[79] Exhibit R8, [15].
[80] Exhibit R8, [16].
On 19 December 2014, the Applicant reported to Dr Ali that she ‘attempted suicide [a] few weeks ago after drinking’. She was reportedly ‘v[ery] vague on details’ and ‘emotional at times’. The Applicant was ‘seeing Woden Mental Health later today.’[81]
[81] Exhibit R9, 162.
The Applicant saw Professor Scott Henderson, psychiatrist at Woden Mental Health, who provided letters to Dr Ali dated 20 January 2015 and 7 April 2015. On 20 January 2015, Professor Henderson reported that the Applicant:
… has an anxiety disorder and a number of vulnerabilities in her nature … The onset for the Applicant was around 13 years of age. She has noticed that the intensity waxes and wanes, sometimes in reaction to stress. There is generalised anxiety with some agoraphobia and social anxiety as well.
…
She needs psychotherapy, with particular attention to mood and insomnia.[82]
[82] Exhibit R9, 68.
On 13 March 2015 Dr Ali’s clinical notes for the Applicant record ‘… going to mood group sessions – good rapport with psychologist Teele (sic)… discussed med cert recommending regular hrs – declined.’[83]Dr Ali recalls that during this consultation with the Applicant she discussed Professor Henderson’s letter with her. The Applicant indicated that she did not agree with Professor Henderson’s diagnosis.[84] The Applicant told the Tribunal she does not remember seeing Professor Henderson. Nor can she recall Dr Ali telling her that Professor Henderson had diagnosed her with an anxiety disorder and some agoraphobia.[85]
[83] Exhibit R9, 162.
[84] Exhibit R8, [19].
[85] Transcript, 9 September 2019, 86.
The Applicant told the Tribunal that in March 2015 she attended mood group sessions led by Ms Teall McQueen. These sessions were ‘about learning how to deal with sudden changes in mood, regardless of what external factors are affecting them.’[86]
[86] Transcript, 9 September 2019, 29.
On 10 April 2015, Dr Ali’s clinical notes record ‘Presents with mum crying all the time … long and difficult consults – reluctant to answer question about self-harm, not answering questions about TOSH.’[87]
[87] Exhibit R9, 161,
Dr Ali completed another Mental Health Care Plan for the Applicant on 29 April 2015.[88] She completed a K10 assessment and scored 39/50. Dr Ali states that she would have given the Mental Health Care Plan directly to the Applicant.[89]
[88] Exhibit R9, 69-70; 161.
[89] Exhibit R8, [20].
The referral letter from Dr Ali to Ms McQueen stated:
[The Applicant] is being seen at Woden Mental Health – Prof Henderson for generalised anxiety, social anxiety and social phobia, as well [the Applicant] feels there is a strong element of depression present.[90]
[90] Exhibit R9, 129
The Applicant told the Tribunal that she does not remember the discussions she had with Dr Ali at this time, nor does she recall signing a form for the mental healthcare plan that referred to “Depression related to sleep deprivation”.[91]
[91] Transcript, 9 September 2019, 86.
The Applicant attended five sessions with Ms McQueen from 20 May to 29 July 2015 Her notes record:[92]
· On 20 May 2015, the Applicant described ‘heightened elevation in mood at times, whilst suffering low moods’ and reported suicidal ideation without intent;
· On 1 July 2015, the Applicant demonstrated and/or reported ‘anxiety’ that she would ‘not be up for [a new employment] position’; and
· On 29 July 2015, the Applicant reported that she was ‘not eating’.
[92] Exhibit R9, 131-137.
The Applicant told the Tribunal she had a ‘good rapport’ with Ms McQueen, and she thought that seeing her privately ‘would improve [her] sleep because she said that that’s something she specialised in.’[93] During her sessions with Ms McQueen the Applicant discussed her ‘stressors of work’ and Ms McQueen gave her ‘recommendations that until that had stopped, or subsided, that sleep wasn’t going to improve very much.’[94] She also gave the Applicant relaxation methods but, ‘said they were going to be somewhat obsolete until work improved.’[95]The Applicant told the Tribunal she did not discuss other aspects of her life with Ms McQueen, and she did not provide her with a diagnosis.[96]
[93] Transcript, 9 September 2019, 30.
[94] Transcript, 9 September 2019, 27.
[95] Transcript, 9 September 2019, 31.
[96] Transcript 9 September 2019, 31.
On 10 June 2015 Dr Ali’s clinical notes record ‘Not sleeping slept 2 hours overnight … intense abdominal pains can last all day started one month ago … will refer to private Psych’.[97]
[97] Exhibit R9, 160.
On 15 July 2015 Dr Ali’s clinical notes record ‘… memory still struggling with mood … saw psychologist Teele (sic) today – has a very good rapport with her – is in better head space since having sessions with her – has had X5 sessions to date still has significant nightmares …’.[98]
[98] Exhibit R9, 158-159.
On 11 September 2015 the notes record ‘… last saw Teele (sic) one month ago – not able to see her for 2/52.’[99]
[99] Exhibit R9, 159.
On 20 November 2015 the clinical notes record ‘… long history of sleep issues since she was 14 years old sees psychologist for that …’.[100]
[100] Exhibit R9, 158.
On 6 April 2016, Dr Ali’s clinical notes record the Applicant stated she ‘went for work health test’ for the Position.[101]
[101] Exhibit R9, 157.
On 6 May 2016 the clinical notes record ‘… had physical for public service yesterday … gets migraines with visual blurring has them 2 monthly or so … triggered by stress … 5 months sore back and sore shoulders.’[102]
[102] Exhibit R9, 157.
In her written outline of evidence, Dr Ali states:
At this point in time it is my strong belief that [the Applicant] would have definitely known that she had been diagnosed with anxiety and depression because she was receiving a very significant amount of treatment from multiple practitioners at that point. [The Applicant] had significant mental health issues at this time.[103]
[103] Exhibit R8, [22].
Application process and Sonic Health medical assessment
The Applicant applied for the Position on or about 30 April 2016. The application and induction process was quite lengthy and was conducted over a period of some weeks. The induction process involved fitness tests, observation exercises and completion of papers and presentations. The application process included police checks, health checks and an application for a security clearance.[104]
[104] Exhibit A1, [11].
In completing an Equal Employment Opportunity employment form the Applicant answered “No” to the following question:
8. Do you have a disability? (Where “disability” is defined as “… a person has a disability if they report that they have a limitation, restriction or impairment, which has lasted, or is likely to last, for at least 6 months and restricts everyday activities. This includes: … nervous or emotional condition causing restriction; mental illness or condition requiring help or supervision; receiving treatment or medication for any other long-term conditions or ailments and still restricted; any other long-term conditions resulting in a restriction”).[105]
[105] Exhibit R9, 89.
The Applicant underwent a pre-placement medical assessment in relation to her application for the Position on 5 May 2016. When completing a pre-employment medical questionnaire of the same date (the ‘Sonic Health form’) the Applicant responded to the following questions as follows:
·Q1. Are you currently being treated for any medical condition?, Answer: “No”;
·Q2. Do you expect to consult a doctor or expect to receive any treatment in the near future? Answer: “No”;
·Q3. Is there any history of serious illness of disease in your family? Answer: “No”;
·Q4. Have you ever been admitted to hospital? Answer: “Yes – Hospital, gall bladder removed”;
·Q5. Have you had time off work in the last 2 years for illness or injury? Answer: “No”;
·Q11. Have you taken any medications in the last month? Answer: “Yes” – Thyroxine”;
·Q14. Is there any other condition that may impact on your ability to safely perform the duties of your job? Answer: “No”;
·Q26. Do you have any difficulty with any of the following activities – shift work / sleep? Answer: “No”;
·Q33. Have you ever received treatment or medical advice for any of the following – Anxiety/Depression? Answer” “No”;
·Q34. Have you ever received treatment or medical advice for any of the following – Other mental health issues? Answer” “No”;
·Q55. Have you ever received treatment or medical advice for any of the following – Recent weight loss or gain? Answer” “No”;
·Q58. Have you ever received treatment or medical advice for any of the following – Sleep Disorders? Answer” “No”;
·Q59. Have you ever received treatment or medical advice for any of the following – Any other medical condition not listed above? Answer” “No”.
During cross-examination, the Applicant was questioned about her medical assessment and completion of the Sonic Health form. She said that the appointment was during budget week, which was very busy, and she was tired.[106] She does not remember the appointment but does recall the office in Woden.[107] She said that no instruction was given to her before she completed the form.[108]
[106] Transcript, 9 September 2019, 32, 34.
[107] Transcript, 9 September 2019, 33.
[108] Transcript, 9 September 2019, 34.
The Applicant was asked about her answers to specific questions in the Sonic Health form. In relation to Question 33 she said she answered ‘No’ as she had never been given a ‘specific diagnosis’ for anxiety/depression.[109] In cross-examination she was reminded of the Mental Health Care Plans that she signed that referred her for treatment for ‘depression’. She said she could not remember these.[110]
[109] Transcript, 9 September 2019, 34, 99.
[110] Transcript, 9 September 2019, 99.
In relation to Question 58, she said she answered ‘No’ as she did not have a sleep disorder rather she had ‘disordered sleep due to external factors. It wasn’t a chronic condition.’ She explained that it had been ‘indicated to me multiple times that if I’d made adjustments to my work pattern where I had regular hours, my sleep would improve.’[111]
[111] Transcript, 9 September 2019, 34.
In her statement dated 6 December 2018, the Applicant wrote
It was not my intention when I completed the Sonic Health Plus form to conceal or hide the treatment that I had received. I simply didn’t appreciate that it was relevant to the question being asked. I didn’t really appreciate or believe that I had suffered from a mental health condition. I believed that I had been dealing with the consequences of a chronic sleep condition.
In 2016, when the Sonic Health Plus form was completed I believed myself to be psychiatrically well.[112]
[112] Exhibit A1, [17] and [18].
The Applicant was asked during cross-examination whether she approached the task of completing the form with the intention of disclosing any medical history she thought might affect her getting the job. She replied,
I wouldn’t have intentionally lied on this form. There is nothing I can get from lying on this form.[113]
[113] Transcript, 9 September 2019, 101.
The Applicant agreed that some of the answers she gave were not true, and that she did not provide much accurate information on the form.[114]
[114] Transcript, 9 September 2019, 101.
Position duties and requirements
The Position requires individuals to perform range of security functions operating on a 24/7 roster basis in Parliament House including:
·Entry screening of persons and property;
·Access control and monitoring;
·Mobile patrolling;
·Immediate response to security incidents;
·First aid emergency response.[115]
[115] Respondent’s SFIC, [6].
The fitness and other requirements of the role include the ability to
·Stand for prolonged periods of time;
·Walk up to 10 km per day (when on patrol duties);
·Climb stairs;
·Enter into and work in “confined spaces”;
·Move rapidly from one area of the building to another;
·Work in emergency situations; and
·React quickly to situations.[116]
[116] Respondent’s SFIC, [7].
Commencement and training
The Applicant commenced in the Position on 9 May 2016.
For the next four weeks, she underwent compulsory training for the Position, including training in respect of first aid provision and defensive tactics.[117]
[117] Exhibit R2, T7, 27.
During examination in chief, the Applicant told the Tribunal that she did not ‘see any issue with [her] undertaking [the] role’ and she believed that her current role in catering ‘was more challenging.’[118]
[118] Transcript, 9 September 2019, 35.
The Applicant explained that the defensive tactics training was necessary for officers to deal with any ‘disruption’ caused by a visitor to the building, which required them to be stopped from the behaviour or escorted out of the building.[119]
[119] Transcript, 9 September 2019, 35-36.
In her Statement dated 6 December 2018,[120] the Applicant stated that in the course of defensive tactics training, she volunteered to assist in demonstrating one of the defensive skills, which involved the following:
I sat in a chair at the front of the room. Marc [Barsley] came up behind me and placed his thumb on a pressure point on my neck. I became distressed and left the room. Marc followed me. Marc asked me what was wrong and I told him that I had issues around people touching my neck. He asked if it was going to affect my training and I said yes. He told me that he needed to talk to Scott.
At the end of the day I sat down with Marc and Scott. I told them that when I was 14 I was attacked and sexually assaulted … [t]hey told me that this wouldn’t be an issue and that they would not do that particular attack on me …
The following week I sat down with Scott, Marc and the defensive tactics trainer and again explained that I had been attacked and sexually assaulted when I was 14 and that as part of the attack I was grabbed around the neck. The trainer assured me that would be okay and that training could be structured in a way where I could avoid that sort of contact. I was told that as long as I could perform the skill effectively that it would not need to be demonstrated on me.[121]
[120] Exhibit A1, [22] and [23].
[121] Exhibit A1, [22]-[24].
The Applicant took leave without pay from 4 June 2016 to 11 September 2016[122] to go on a pre-planned holiday in Europe, travelling predominantly by herself. Following her return from her holiday, the Applicant was given a refresher course of training for the Position.
[122] Transcript, 9 September 2019, 36.
Shift swapping and leave request
By October / November 2016 work colleagues of the Applicant noticed that she was frequently making her own arrangements with fellow security officers to change lines on her point roster, apparently so that the Applicant would not have to work in certain locations at Parliament House.[123] One of the Team Leaders, Matt Pappas, spoke to the Applicant about this practice, and indicated that she could no longer change the roster by herself, and that if she wished to change the roster she would need to follow the proper process for swapping lines.[124]
[123] Exhibit R1, T7, 29.
[124] Exhibit R1, T7, 29.
The Applicant was asked during cross-examination about her swapping shifts. She said that the way she was dealt with in relation to this was ‘horrific’ and it was one of her complaints. She agreed that she did not always speak to her team leader about swapping lines.[125] She denied that she wanted to swap shifts so that she was not working alone.[126]
[125] Transcript, 9 September 2019, 113-114.
[126] Transcript, 9 September 2019, 114.
The Applicant was asked about her request for leave from 25 to 31 January 2017. This leave was not approved, but it was approved for the period 26 to 31 January 2017.[127] The Applicant told the Tribunal she did not think she was being treated differently in relation to her leave request.[128]
[127] Exhibit R9, 92-93; 98-99; Transcript, 9 September 2019, 115.
[128] Transcript, 9 September 2019, 115.
Rumours and comments by co-workers
In a number of statements filed by the Applicant’s co-workers, and confirmed in their oral evidence at the hearing, the following evidence is before the Tribunal in relation to rumours circulating about the Applicant during her employment in the Position.
·Some Security Officers did not think that hiring the Applicant was a good idea.[129]
·Some Officers had been complaining about the Applicant going on a pre-arranged three-month holiday immediately after completing her training.[130]
·Some of the other new starters were complaining that the instructors were showing the Applicant favouritism.[131]
·Rumours were circulating that the Applicant was romantically involved with Marc Barsley.[132]
[129] Exhibit R6 [10]; Transcript, 9 September 2019, 220.
[130] Exhibit R6 [11]; Transcript, 9 September 2019 222.
[131] Exhibit R6, [12]; Transcript, 9 September 2019, 223.
[132] Exhibit R6, [19]; Transcript, 9 September 2019, 227.
The Applicant was asked during cross-examination about the rumours about her and Marc Barsley. She said that she had ‘been approached about the rumour by a few other guards.’ She could ‘only remember one specifically, but there were a few that said comments in passing.’[133]
[133] Transcript, 9 September 2019, 121.
In his statement dated 11 July 2018, Marc Barsley stated the following in relation to the rumour that was being spread about him and the Applicant:
One of my supervisors, Sean Giddings, told me one day that he had heard some rumours on the floor that I was involved with [the Applicant]. In actual fact I never saw [the Applicant] outside work socialising or anything like that.
Over the next few months the rumour that I was involved with [the Applicant] kept circulating and at one point one of my friends asked me whether I was involved with her, and I told him no I was not, and that I didn’t take any notice of rumours, I just got on with my work.[134]
[134] Exhibit R5, [14] – [15].
In his oral evidence, Marc Barsley told the Tribunal that he was asked about the rumour by Pete Smith, the Master Trainer, and this was the ‘final straw’ and he realised that ‘this is worse than what I know.’[135] At this point he decided to speak to the Applicant about the rumours. He told the Tribunal about his discussion with her about the rumour:
I assumed if it was affecting my work it was definitely affecting her work probably. So it was just like you know what this is way out of control, this is out of hand this rumour that is going around, yes, it’s probably in my best interest to stop talking to you for now to try and quell the rumour.[136]
[135] Transcript, 10 September 2019, 179.
[136] Transcript, 10 September 2019, 180.
He agreed that the Applicant was ‘not happy’ following their discussion, and she sent him a text message that read ‘Thanks a fucking lot.’[137]
[137] Transcript, 10 September 2019, 182.
Meeting with Sean Giddings – November 2016
In late November 2016, Robert Chandler, approached Sean Giddings, Director Security Operations, Parliament House, in relation to concerns the Applicant had raised with him as follows:
·Rumours on the floor regarding her (relationship wise)
·Perceived inappropriate comments made to her or she had heard being made about her
·An issue where she could not be positioned in a role where she would be on her own.[138]
[138] Exhibit R9, 106.
A meeting was convened between Mr Chandler, Mr Giddings and the Applicant to discuss these concerns. In addition to the rumours about her and Marc Barsley, she was concerned about alleged comments made to her by Mark Aston, and other alleged comments that were reported to have been made about her by other PSS officers which she had received second hand.
Mr Giddings is reported to have said at the meeting that he had ‘no tolerance for workplace bullying and harassment.’ The Applicant indicated to him that ‘she did not want the matter pursued in a formal sense.’[139]
[139] Exhibit R9, 106.
Mr Giddings asked the Applicant ‘about the concern regarding her being positioned alone on the floor.’ She indicated to him that ‘she had an anxiety condition which manifested itself quickly which in turn required her to go to the bathroom’. He advised that she should contact her Team Leader and arrangements would be made for her to be ‘supported when this condition presented itself.’[140]
[140] Exhibit R9, 106.
At the conclusion of the meeting, Mr Giddings advised the Applicant that ‘if she had any future concerns or issues that she should come and see me as soon as possible.’ In the following weeks, he spoke to the Applicant regularly, and when he saw her he asked her how she was, to which she replied ‘fine’.[141]
[141] Exhibit R9, 106.
The Applicant was asked about this meeting during cross-examination and she confirmed that she told Mr Giddings she did not want the matter to be pursued further. She also confirmed that she did not have any symptoms between September and November 2016.[142] During cross-examination, the Applicant confirmed that she did not have any panic attacks nor did she need to leave work for anxiety or any other symptoms between December 2016 and February 2017.[143]
[142] Transcript, 9 September 2019, 122.
[143] Transcript, 9 September 2019, 47.
Email to Graeme Anderson – 6 January 2017
On 9 January 2017, the Applicant sent an email to Graeme Anderson, Acting Assistant Secretary Security Branch, which read as follows:
Hi Graeme,
My name is Jess Whitlock, we have never formally met in person however, I have been told that you are the person to speak to regarding bullying incidents at work. I have had a discussion with Sean Giddings about these incidents but have seen no action taken. If at all possible, I would like to speak with you about them to hear you (sic) thoughts on what I have experienced, and what steps I can take (if any).
I have attached a very rough draft of notes on what I would like to discuss.
…
Incident report
The following is an overview of the incidents I have experienced since my start with the Parliamentary Security Branch. I would like some guidance and action on this issue, as I feel this behaviour at work should not be tolerated. These incidences have resulted in an increased stress and anxiety surrounding work and have severely affected my abilities and my home life. I have discussed these issues with Sean Giddings and have heard nothing further. Robert Chandler has been assisting me with this process and was present in my meeting with Sean.
I would like to clarify that the rumours that are referred to below have no validity and that I began to hear these rumours on my return from overseas:
·Mark Aston had made comments about his surprise at how easily my transition to security was as, according to him, many people in security do not like me.
·Team leaders and colleagues making inappropriate comments to me regarding a rumour that was spread about myself and another Team Leader having inappropriate relations.
·Matt Pappas approaching me about shift swapping. “[i]f you care about your job here at all, you will stop swapping shifts”. Differing standards for different staff.
·Later got approached by colleagues saying that they had heard I was not allowed to shift swap anymore. (How has this conversation and information been passed down?)
·Rumours about my behaviour in training, all false, affecting the way I am treated and determining who will and won’t interact with me.
· Got to sit in the classroom and read magazines while the rest of the group was out doing building familiarisation.
· Was let out of tests.
· After having sick days I was approached by Mark Aston saying “you’ve finally decided to come back to work”. My personal life is personal, comments like that are inappropriate.
· 17/11/2016 – Mark Aston made comments regarding my computer screen background. Asking “Is that [Marc] Barsley?” – Suzanne Mooney as witness.”[144]
[144] Exhibit R2, T7, 61; Exhibit R3, T13.2, 43.
In a separate email sent at 1:54pm on the same day (9 January), the Applicant informed Mr Anderson ‘I think [Mr Giddings’] understanding was that I wanted no action taken or he had just forgotten to get back to me.’[145]
[145] Exhibit R3, T13, 36.
Mr Anderson offered the Applicant the opportunity to come and speak with him the same day or the next day (10 January). She did not respond to him until 18 January 2017. In her response, she said she was going on leave and would be returning on 29 January 2017. The afternoon of 30 January 2017 was identified as a suitable time for a meeting. The meeting was not scheduled and it did not eventuate. Mr Anderson approached the Applicant when she was on duty and asked her to make an appointment with him, but she did not do so, nor did she come to his office.[146]
[146] Exhibit R3, T13, 36.
February 2017 incident
On 15 February 2017, the Applicant lodged a Parliament House Incident Report Form reporting as follows:
On 14.2.17 I was told by Mark Aston that Chris Cross “hated my guts”. Today on 15.2.17 Mark brought Chris up to the chamber, where I was on point, to talk it out. Mark left and was not part of this conversation. Chris advised that what I had been told was not true and that he did not have an issue with me. I found this situation confronting and inappropriate so I contacted Dennis Grubb who took me to HR.[147]
[147] Exhibit R2, T7, 62.
The Applicant was asked about this incident during cross-examination. She said that Mark Aston had told her that Chris Cross ‘hated her guts’ and she should speak to him. She spoke to Chris and he said this was not true, and then they ‘shook hands’.[148] She told the Tribunal that her issue was with Mark Aston not Chris Cross and ‘it was Mark Aston’s continued behaviour that had the most effect.’ [149] She was upset after this incident and Dennis Grubb saw her as she was walking away and he took her to Human Resources (HR).[150]
[148] Transcript, 9 September 2019, 119.
[149] Transcript, 9 September 2019, 121.
[150] Transcript, 9 September 2019, 121.
Meetings with Human Resources
When the Applicant was taken to Human Resources by Dennis Grubb, she was met by Rebecca Lockett, Rehabilitation Case Manager, who described the Applicant as ‘hysterical’,[151] and ‘crying, sobbing, shaking and [j]ust very upset.’[152] She was told to complete an Incident Form detailing what had happened, and she was then sent home ‘because she was in no state to continue working.’[153]
[151] Exhibit R10, [4].
[152] Transcript, 13 December 2019, 42.
[153] Exhibit R10, [4].
Ms Lockett met again with the Applicant and her mother on 22 February 2017 to discuss ‘where to from here, in regards to any return to work and to gain what advice her GP had told her about what was appropriate, as far as her return to work.’[154]
[154] Transcript, 13 December 2019, 46.
Ms Lockett made the following notes at this meeting:[155]
Meeting with [the Applicant] and her mother. Her mum stated that [the Applicant] was not sleeping and hadn’t been eating for several days due to the stress of this current situation.
[The Applicant] did not want to go down the compensation path. This was due to a sexual assault that occurred when she was 14 years old. Following this she saw psychs and psychologists and she didn’t find this helpful so doesn’t want this to be a tx now. She stated that she was worried that if she lodged a Comcare claim this event and subsequent diagnosis etc would be ‘dragged up’ and she would have to justify her current symptoms re causation against this assault.
…
[The Applicant] does not feel she can RTW in security atm and her mother stated she is not sure she ever could.
…
Discussed redeployment across DPS …[156]
[155] Exhibit R9, 100-105.
[156] Exhibit R10, Annexure C.
Return to work
The Applicant returned to work in late March 2017 performing suitable duties at full-time hours in events administration. She told the Tribunal that she enjoyed this new role.[157]
[157] Transcript, 9 September 2019, 124.
The Applicant told the Tribunal that following her return to work, ‘inappropriate’ ‘passing comments’ were made to her by her former security colleagues when she came through the entrance to the building.[158]
… when I came back, the stress got introduced because everyone was talking about those rumours again and everything that happened again.[159]
[158] Transcript, 9 September 2019, 131.
[159] Transcript, 9 September 2019, 128.
The Applicant was asked why she did not refer to these ‘passing comments’ in any of her statements, or in any of her complaints, or mention these to her doctor. She said it was because she did not think they were a ‘separate thing [that] needed to be written down.’[160] She agreed she told her general practitioner, Dr Lewis, in May 2017 that she felt ‘supported’ in her new job, but she said this did not include when she was walking in and out of the building.
Medical treatment - September 2016 to July 2017
[160] Transcript, 9 September 2019, 130.
Dr Matthew Lewis, general practitioner
Dr Lewis reported on 4 December 2017 that he commenced treating the Applicant on 23 September 2016.[161] On 6 December 2016, the Applicant reported to Dr Lewis her ‘long history of nightmares from a traumatic experience in early teens’. She indicated she had not been getting much sleep in the last few weeks, and was ‘frustrated’ as she has seen ‘so many people about this’ and it is still a problem.[162]
[161] Exhibit R9, 153.
[162] Exhibit R9, 156.
The Applicant next attended an appointment with Dr Lewis on 16 February 2017. She reported ‘bullying at work around rumours of inappropriate relationship.’ These ‘came to a head yesterday and had a break down, inappropriate confrontation of management and colleagues’. She was ‘teary and clearly distressed by this, impacting on sleep and quality of life.’ [163] Dr Lewis provided her with a certificate for one week’s sick leave.
[163] Exhibit R9, 155.
The Applicant saw Dr Lewis for a further appointment on 24 February 2017. She reported the meeting with HR and stated she was ‘not sure if wants to pursue mediation or formal complaints or compensation, concerned about poor outcomes and further victimisation.’ She indicated she was unlikely to return to security but may request another position within the Department. She reported she ‘feels a bit less stressed, sleeping still poor, appetite improved.’[164]
[164] Exhibit R9, 154-155.
The Applicant’s next appointment with Dr Lewis was on 3 March 2017. She reported she had been granted extended leave until 23 March 2017. She told Dr Lewis she had broken up with her boyfriend and was ‘upset about this’. She ‘denied depressive symptoms but appetite a bit down.’ Dr Lewis recorded ‘lengthy supportive and grief counselling.’[165]
[165] Exhibit R9, 154.
On 23 March 2017, the Applicant saw Dr Lewis and reported she would go back to work on Monday [27 March 2017].[166] She did not report any anxiety or other symptoms associated with work.
[166] Exhibit R9, 154.
On 4 May 2017, the Applicant attended an appointment with Dr Lewis and reported ‘new job, 8-4, going well … supportive counselling’.[167]On 11 May 2017 Dr Lewis saw the Applicant and recorded ‘Denies symptoms of depression, new work going ok, feels well supported.’[168]
[167] Exhibit R9, 154.
[168] Exhibit R9, 153.
On 8 June 2017, the Applicant saw Dr Lewis and reported ‘mood down, anxiety worse than has been, sleep still not improving … significant recent stressors. Dr Lewis recorded she was to be attend an appointment for a mental health care plan and consider medication. She was prescribed Endone and Imovane.[169]
[169] Exhibit R9, 153.
The evidence before the Tribunal is that there were numerous non-related employment factors that cumulatively contributed to a significant degree to the aggravation of the Applicant’s ailment in June 2017. These factors include genetic, personality and family factors, her underlying vulnerability when exposed to an environment where she is reminded of previous assaults, and relationship and personal issues that she was dealing with at the relevant time.
On the basis of the evidence before it, the Tribunal is not satisfied that the aggravation of the Applicant’s ailment was contributed to, to a significant degree, by the Applicant’s employment. It therefore finds that she did not suffer a ‘disease’ for the purposes of s 5B(1) of the SRC Act.
As the Tribunal has found that the Applicant did not suffer a ‘disease’ it is unnecessary for it to consider whether this is not an ‘injury’ for the purposes of s 5A(1)(a) of the SRC Act, by reason of s 7(7) of the SRC Act.
CONCLUSION
The Tribunal is not satisfied that the Applicant suffered a ‘disease’ for the purposes of section 5B(1)(b) of the SRC Act.
It follows that the Applicant did not suffer an ‘injury’ for the purposes of section 5A(1)(a) for which the Respondent is liable to pay her compensation under section 14 of the SRC Act.
DECISION
The Reviewable Decision is affirmed.
233. I certify that the preceding 232 (two hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
234.
………………………………………
Associate
Dated: 18 May 2020
Date(s) of hearing: 9 – 10 September 2019 and 13 December 2019
Solicitor for the Applicant: Mr Nigel Gabbedy, Gabbedy Milson Lee
Counsel for the Applicant: Mr Leo Grey Solicitors for the Respondent: Mr Scott Moloney, Moray & Agnew Lawyers
Counsel for the Respondent: Ms Sarah Wright
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