Reid and Comcare (Compensation)

Reid and Comcare (Compensation) [2016] AATA 276 (29 April 2016)

Division

GENERAL DIVISION

File Number

2013/6771

Re

Rhondda Reid

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President Bernard McCabe

Date 29 April 2016

Place Brisbane
The decision under review is set aside and in substitution I find the respondent is liable for the applicant’s major depression condition pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988.
....................[sgd] .................................
Deputy President Bernard McCabe
Catchwords
COMPENSATION – workplace injury – whether major depression arose out of, or in the course of, the applicant’s employment – whether workplace stressors contributed to injury – substantially more than material – decision under review is set aside and in substitution the respondent is liable for the major depression condition
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
REASONS FOR DECISION
Deputy President Bernard McCabe
29 April 2016

Rhondda Reid commenced work at Airservices Australia on 1 March 2007. She worked there until 31 July 2012. She was diagnosed with a psychiatric condition that she claims arose out of, or was aggravated by, her work at Airservices. She says Comcare should accept liability for the condition under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Comcare formally denied liability. Its reviewable decision to that effect is dated 10 October 2013. Comcare says the condition did not arise out of Ms Reid’s work – but if it did, it was at least partly a consequence of reasonable administrative action within the meaning of s 5A of the Act.
Ms Reid’s account of her employment at Airservices
Ms Reid has qualifications in fashion design. She previously worked in the fashion industry and in clerical roles in law firms around the world. She also undertook editing work in the finance sector. She joined Airservices in 2007 as a temporary employee. She initially worked in a clerical role in the Office of Legal Counsel. She became a permanent employee in June 2008. In December 2008, she began work in a new section as the Emergency Response Planning Co-ordinator. The head of her section was Mr Michael Miller, and her immediate superior (as of 2009) was Ms Brioni Bale.[1] Ms Reid’s role had not previously existed within Airservices. She said in her evidence that the establishment of the role was prompted by the introduction of new legislation that raised workplace health and safety issues at the various sites Airservices operated around Australia. The scope and challenging nature of the role was explained in the applicant’s supplementary statement (exhibit 4). She said:
I was in the crisis planning team and there was the huge responsibility of rolling out changes to Airservices’ emergency and safety procedures, including reorganising the emergency response programs for Airservices Australia wide. This was a massive job and of significant importance given we had to ensure airport safety for both passengers and staff.
For the most part, I was tasked with developing and instituting new training and emergency plans across the country. I remember that when I (sic) was offered this role because I did not have training nor relevant experience in this area, however my boss reassured me he wanted me in the role because he wanted someone with “common sense”. I assumed that the job-specific training, support and assistance I needed would follow, however unfortunately it did not.
I was conscious of the fact I had massive responsibility in this role. If I made a mistake or couldn’t get the job done on time, best case we were found to be non-compliant with the legislative requirements and worse case, someone got hurt or killed as a result. I very much took that upon myself, particularly after (as detailed in my previous Statement at PT28, pg194) the new WHS legislation came into force and we had a briefing meeting in which I was told that as an individual with knowledge of a non-compliance issue I could be held personally accountable if something went wrong.
This was a lot of pressure and unlike anything I had experienced in the workplace before. The role was extremely stressful because of the demands and time frames without being provided with proper support or proper training. I felt like there were never enough hours in the day to get the job done. For me, a big concern was the consequences if something went wrong and I was blamed. The nature of the role meant that my job was to help stop people getting hurt and that was always in the back of my mind.
[1] Ms Bale was also known as Ms Brammell
Ms Reid said in her oral evidence that she first became aware of instances of non-compliance at remote locations in Western Australia in particular. She also spoke about incidents in Sydney where fire panels did not work. She said a range of other shortcomings gradually came to light.
The applicant emphasised in her statement (exhibit 4) that she had no prior experience or training in project management planning roles when she took on the role as Emergency Response Planning Co-ordinator. She added (at [39]):
I felt very much like I was thrown in the deep end and as it was a newly created role I never felt like it was clear what was expected of me, what exactly my position involved, and I did not feel properly supported.
Ms Reid’s statement lamented (at [41]) that “I was placed under incredible amounts of pressure by Airservices and that I was not provided with proper job-specific training and support.” She also said she encountered resistance from others within the organisation who were used to doing things in a particular way, or did not wish to cooperate in the completion of tasks that became necessary once safety concerns were prioritised: at [40]. She complained to Ms Bale about a want of authority at a meeting in 2009. The complaint is referred to in Ms Bale’s email dated 4 November 2011: exhibit one at p 260.
Notwithstanding these concerns, the applicant says she did a good job. She oversaw the development and roll-out of the Workplace Emergency Response Training (WERT) program in 2009. She pointed out she received a CEO’s commendation in 2011 for that work: exhibit one at p 190. She also coordinated the Emergency Planning Committees within the organisation. She received a good account in her performance reviews: exhibit 4 dated 23 October 2014 at [45], and there was evidence of positive feedback from Ms Bale in particular: see, for example, the email from Ms Bale dated 9 February 2012 (exhibit one at p 516) which concluded: “You are doing a great job Rhondda!”
Ms Reid said in her oral evidence that she asked to work from home at various points. She recalled spending a day at home and making excellent progress on her work in late 2009. She emailed Mr Miller on 27 November 2009 (exhibit one at p 384) to ask about formalising a regular arrangement.
Ms Bale, who received a copy of the email, indicated in her response dated 30 November 2009 there was “[n]o problem with your proposal from my end.” But Mr Miller declined to approve a regular work-from-home arrangement. He indicated in his email of 27 November 2009 he was happy to approve members of his team working from home on an ad hoc basis where individual circumstances (such as a sick family member or the need for a sustained period of concentration on a difficult task) justified doing so. He explained in cross-examination that he was worried about Ms Reid being distracted if she worked at home on a regular basis. The applicant expressly denied at the hearing that she was devastated by Mr Miller’s failure to approve the arrangement. She pointed out in cross-examination that Mr Miller and Ms Bale were flexible and accommodating when she made subsequent requests to work from home, notwithstanding Mr Miller’s reluctance to approve a formal arrangement.
While she had been the applicant’s supervisor since 2009, it seems Ms Bale began to take a closer interest in Ms Reid’s work in late 2011. Ms Reid said Ms Bale began to micro-manage her work and place increasingly unrealistic expectations on her. Ms Reid suggested in exhibit 4 that Ms Bale was not really involved in her project until October 2011. It was only at that point that the micro-management began, she recalled: [46]-[47]. Ms Reid said she was subject to increasing criticism at the hands of Ms Bale who did not appreciate the scale of the task or the good work being done: exhibit four at [47]-[48]. Ms Bale, for her part, agreed in her statement (exhibit 5 at [7]) that she began to take a more direct role in the project after the applicant moved to Brisbane in mid-2011. Ms Bale said she no longer had regular updates or “visibility of [the applicant’s] work” which necessitated closer involvement. Ms Bale agreed that involvement increased:
…from the latter part of 2011. It was over this period of time that I became increasingly concerned about Rhondda’s productivity and her work hours.
The friction between Ms Bale and Ms Reid appears to have begun at an earlier point. Ms Reid gave oral evidence about an incident involving her and Ms Bale during the Brisbane floods at the beginning of 2011. Ms Reid was working in Airservices’ crisis management centre in Brisbane at the time. Everyone was working hard to cope with the flood disaster. Ms Bale had apparently taken issue with the language Ms Reid used in a document and insisted it be changed. Ms Reid took exception to the direction and the pair had an exchange. Ms Bale recalled the incident in her statement (exhibit 22) but expressly denied raising her voice or belittling or berating the applicant during the course of the exchange: at [9]. Mr Miller recalled Ms Reid approaching him to discuss the matter, but he said he was satisfied Ms Bale acted appropriately: exhibit 18 at [22]. In her cross-examination, Ms Reid said she thereafter was determined to transfer out of Ms Bale’s team. She said she began to seek a transfer in February 2011 because she did not want to continue working with Ms Bale.
The apparent deterioration in the relationship with Ms Bale must be seen in the context of the close relationships that existed within Mr Miller’s section after Ms Reid joined the team. Mr Miller said his team was small and tight-knit. The atmosphere was described by several witnesses as being “family-like”: see, for example, exhibit 19 at [4]. Mr Miller set the tone. Mr Miller and Ms Reid agreed they enjoyed a good relationship at the outset. Mr Miller said they were of a similar age. Both of them were single. They had other things in common: both had military connections and aged parents who experienced health problems. They socialised together to some extent. They would occasionally breakfast or have coffee with each other, and there was a good deal of evidence at the hearing and in statements from Mr Miller and Ms Reid about Mr Miller occasionally giving the applicant a lift from her home on his way to the office. There was also evidence from both of them about the applicant and Mr Miller attending communion together at Mr Miller’s church on at least one occasion.
Mr Miller said the applicant talked freely with him about her interests, which he said he came to find unsettling. He said in cross-examination that the applicant had an unhealthy interest in conspiracy theories and other “fringe” ideas she discovered on the internet. He said he came to realise the applicant was suffering from a mental illness: exhibit 19 at [5]. He said in his oral evidence that Ms Reid told him she had suffered from depression in the past and that she had been left homeless on one occasion after a relationship breakdown. In his statement (exhibit 19) and in oral evidence he recalled the applicant would often complain of feeling “down”, particularly during the cold, dark Canberra winters. (Ms Bale confirmed the thrust of this evidence in her statement: exhibit 5.) He said she experienced difficulty concentrating and often had difficulty making it to work. Mr Miller said he would occasionally call Ms Reid in the mornings and often went out of his way to pick her up from her home and bring her to work when he received a text indicating she was struggling: at [3]. (Ms Reid agreed in her oral evidence that Mr Miller occasionally offered her a lift but denied she was struggling as he alleged.) He also said he took the applicant to his church in the hope she might make contact with the minister who could provide some comfort: at [5].
Ms Bale and the applicant sat near each other while the applicant was based in Canberra. Ms Bale said the applicant was inclined to share details of her personal life. Ms Reid denied that she regularly shared intimate details, but it seems clear there was a level of familiarity between Ms Bale and Ms Reid, at least early on. I note there were email exchanges referred to in the evidence where Ms Bale and Ms Reid appeared to refer to each other using pet names: exhibit 5, annexure A.
I am satisfied the relationship between the team members was, at least initially, warm and familiar. Mr Miller appeared to foster close working relationships with and amongst his staff. He said he ignored some aspects of Ms Reid’s performance that he claimed were troubling: in cross-examination, for example, he said he did not make an issue about Ms Reid’s poor attendance record and frequent smoking breaks because the team liked her and wanted to get the best out of her.
There are many good things about a tight-knit, family-like relationship in the workplace, but there are also risks – and they started to be realised in 2011 as the relationship between Ms Reid and Ms Bale began to deteriorate.
Ms Reid said the year started badly when she had the altercation with Ms Bale during the Brisbane flood disaster. But there was worse to come. Ms Reid’s mother experienced a life-threatening illness that left her in intensive care early in 2011 (although Mr Miller recalled Ms Reid’s mother had been in poor health for some time before that) and Ms Reid took time off work to care for her in Queensland. Her mother’s health remained precarious for some time, and the applicant agreed in cross-examination she found the experience very stressful over a relatively long period. When Ms Reid returned to Canberra in May 2011, Ms Bale recalled the applicant was clearly upset. Mr Miller and Ms Bale met with the applicant, who was tearful and distressed, and it was agreed the applicant could have further leave to care for her mother in Queensland: see leave approvals at exhibit one, pp 344-345. Ms Reid agreed in cross-examination that Mr Miller and Ms Bale were supportive and accommodating during this period. It was thereafter agreed Ms Reid would transfer to work out of an office in Brisbane. She remained part of the same team: exhibit one at pp 342ff. The timing and circumstances of the transfer suggests it was prompted by the applicant’s desire to be closer to her mother rather than out of a desire to move beyond the reach of Ms Bale.
The applicant’s mother’s health remained poor – and a source of stress to the applicant – for a significant period. It may be that the stress was exacerbated by a lack of support from Ms Reid’s other family members, which she mentioned to Ms Bale. Ms Reid was asked about email exchanges with Ms Bale that occurred in 2012 in which Ms Reid was asking for personal leave so she could accompany her mother to medical appointments. Mr Harding, for Comcare, suggested to the applicant that her mother’s health problems were a significant source of stress to her. She agreed her mother’s health was a source of stress, but insisted workplace issues were more serious.
Ms Bale said there was a decline in the applicant’s productivity and work hours after she moved to Brisbane: exhibit 5 at [7]. Mr Miller also referred in his oral evidence to the applicant’s declining productivity following the move. He said there were delays in the roll-out of the WERT program and he recalled having to contact local managers to check if Ms Reid was at work. Mr Miller agreed he was concerned at how his team was being perceived within the organisation. Ms Bale explained these concerns prompted her to take a more direct and active role in Ms Reid’s supervision in the latter part of 2011. That approach resulted in tension.
There was a flare-up following a meeting between Ms Bale and the applicant on 17 October 2011. Ms Bale said in her statement (exhibit 22) the meeting was called to discuss Ms Reid’s renewed request to work from home. Ms Bale recalled she had earlier spoken with Ms Wendy Flint from the human resources office to discuss how to approach the meeting: exhibit one at p 64. Ms Bale recalled she told Ms Flint she was worried about Ms Reid’s performance and was concerned that working from home would not improve the situation. When the time came for the meeting with Ms Reid, Ms Bale recalled in her notes (exhibit one at pp 64-65) there was discussion about work performance and expectations. Ms Bale said the applicant withdrew her request to work from home one day each week and suggested she would prefer to work on a part-time basis. Ms Bale said the applicant should put her request in writing. (That advice was given at Ms Flint’s suggestion.) Ms Bale recalled in her statement (exhibit 22 at [20]) that Ms Reid became upset when talking about the impact of her mother’s illness. Ms Bale recalled concluding the meeting by hugging Ms Reid. Ms Bale also noted in her meeting summary (exhibit one at pp 64-65):
Rhondda made it clear that the scope of her work is not clear and she would like clarification as to what her duties actually are. I agreed to follow up with John Brown regarding the GAP analysis Rhondda prepared and sent to him earlier this year. I also agreed to seek clarification from Stephen Angus as to what he sees Rhondda’s roll is.
Rhondda expressed ambiguity within her role and requested further clarity as to whether her current work was more than a one person job.
I explained that if she goes part time she will have less time to get her work done, which she is struggling to do working fulltime hours at the moment. [Emphasis added]
These notes tend to confirm Ms Reid’s claim that she was unclear on her role, and that she was, to the knowledge of her supervisors, struggling to do her job. Ms Bale agreed in cross-examination that part of the problem arose out of the fact funding for the WERT program came from different parts of the organisation which led to confusion over who was responsible for doing what. Ms Reid discussed the GAP analysis referred to in the notes during her cross-examination and re-examination. She said she had undertaken the analysis during the course of 2011 when she was restricted to working during standard hours (she said she was told staffers were not permitted to work paid overtime during that period). The fact she was moved to perform such an analysis confirms she thought she was being overworked in the role.
The applicant had a different experience of the meeting on 17 October 2011. She complained about Ms Bale’s behaviour. Ms Bale emailed Ms Flint on 19 October 2011 to report she had been told Ms Reid was planning on making a bullying and harassment claim. Ms Bale apparently prepared the notes summarising the meeting in anticipation of such a claim. They duly confirm Ms Bale handled the meeting with tact and sensitivity.
While the relationship between Ms Bale and the applicant appeared to be deteriorating, Ms Bale persisted with her active supervision of Ms Reid’s work. She did this mainly by email. One exchange in relation to the roll-out of the WERT project in Melbourne was annexed to Ms Bale’s statement: exhibit 22. The emails suggest Ms Bale was setting clear expectations for the applicant, although the exchange concluded on 22 December 2011 with Ms Bale congratulating the applicant: “Great work Rhondda! I appreciate all the effort you’ve put in so we met the deadline.” Ms Reid made it clear in her evidence that she resented Ms Bale’s supervision. In her statement, she said (exhibit 4 at [47]-[48]):
…she began to closely monitor and micro-manage me. It was not a matter of providing me with the training, support and encouragement that I had been seeking to no avail, it felt very degrading and I felt unsupported. I feel like I was being put under increasing pressure from task monitoring and increasingly unrealistic expectations were placed upon me.
I was subject to increasing and ongoing criticism from my supervisor which I felt was unfair and unjustified. I felt like I was doing a good job, especially considering the inadequate training and lack of support. What they expected from me was unrealistic and given that I was the first and, at that time, only one to have undertaken that newly created role I believe I was placed to make that assessment.

Ms Reid went on to claim Ms Bale had sought the assistance of the human resources office at Airservices to implement performance management arrangements: exhibit 4 at [49]. Ms Bale said in her statement that Ms Reid “was never performance managed”: exhibit 22 at [11]. Interestingly, Ms Bale recalled she always scored Ms Reid as “a two out of three” for the purposes of the Work Performance Agreements that applied while Ms Bale was the applicant’s manager: exhibit 22 at [12]. Ms Bale explained that ranking suggested the applicant was performing at the required standard of the business – which meant it was unlikely she would be subject to performance management: at [13]. But it seems Mr Miller and Ms Bale considered that course of action, Ms Reid’s statement (exhibit 4 at [49]) refers to notes of a meeting between Ms Bale, Mr Miller and a Mr Stephen Angus on 19 October 2011 in which Ms Bale recorded that “Stephen agreed that I need to start performance managing Rhondda”: exhibit one at p 66.
Perhaps Ms Bale and Mr Miller should have taken Mr Angus’s advice. I accept they did not. Ms Reid was allowed to work from home on a regular basis over the Christmas period and the beginning of 2012. She continued to be based in Brisbane. She also continued to take approved leave to care for her sick mother – and presumably continued to experience stress from that quarter. Fresh problems emerged at work over time. Ms Bale suggested in an email dated 9 February 2012 that she was “angling for assistance for you!” in response to Ms Reid’s calls for help – although no assistance was forthcoming. (Ms Bale had indicated on previous occasions that she would look into the possibility of providing additional support: see, for example, the email exchange on 18 October 2011 reproduced in exhibit one at p 424. Ms Bale did not make it clear to the applicant that she was unlikely to be given further assistance.) In July 2012, Ms Bale and Ms Reid had another fraught exchange by email. Copies of the emails are annexed to exhibit 22. Ms Bale criticised Ms Reid over mistakes in evacuation plans that were delivered by a consultant. Ms Reid sent a reply email dated 18 July 2012 complaining about the tone of Ms Bale’s email. Ms Reid said the earlier email was abrupt and “it has upset me, to the point of making me physically ill.” Ms Bale was on leave and resolved to discuss the matter when she returned. She emailed Ms Reid on 25 July 2012 and asked for a meeting in Brisbane to discuss the earlier exchange. Ms Bale arranged for a representative from the human resources office to attend, and she invited Ms Reid to bring a support person if she wanted to do so. The meeting was set for 27 July 2012. The meeting was postponed at Ms Reid’s request. It was never rescheduled because Ms Reid left work on 31 July 2012 and did not return.
The evidence about being overworked, under-trained and mishandled by her managers lies at the heart of the applicant’s case. She says she developed a psychiatric condition in 2012 and that the condition was the product of pressures at work. She said she tried to negotiate part-time arrangements that would assist her to cope with the condition but she says Airservices’ failure to agree to these requests was not of itself a source of stress. She also denied that her depression condition was attributed to her mother’s illness.
Other witnesses told a different story. I will start with Mr Michael Miller. Mr Miller was initially appointed as Manager, Security and Resilience at Airservices in 2007. He explained in his statement (exhibit 18) that he was part of a small team that included him and Brioni Bale. He was based in Canberra at the time. He said his responsibilities expanded in late 2008 or early 2009 when he became Manager, Crisis Planning. He was then required to split his time between Canberra and Sydney, and his team expanded to include other people.
Mr Miller says in his statement (exhibit 18) that Ms Reid approached him for a job in mid-2008. He said she was a creative and highly intelligent person. He had observed her qualities when he occupied a work station near her while she was still in the legal team. Ms Reid tells the story slightly differently: she recalled in her oral evidence that Mr Miller wanted her because she possessed ‘common sense’ notwithstanding her lack of relevant experience and qualifications. (Mr Miller, for his part, agreed in cross-examination that he knew the applicant did not have any relevant qualifications or experience in emergency response work, although he recollected she may have had some experience with training.) Ms Reid also recalled in her oral evidence that she was told she would receive appropriate training in due course.
When Ms Reid was first appointed to the team in late 2008, it was still small: Mr Miller’s responsibilities had not expanded by that point. Mr Miller recalled in his evidence that the applicant was initially seconded from her previous role. She was appointed to the team on a continuing basis in 2009.
Ms Reid pointed out there was no position description for the position when she commenced work in Mr Miller’s team; indeed, she said there was never a formal description devised for her role although she tried to negotiate one. I note a copy of a draft position description and associated documentation was provided to Mr Miller under cover of an email dated 21 May 2009; exhibit one at pp 252ff. The applicant said that position description was never finalised. Mr Miller initially said in cross-examination that he thought the description was agreed at some point, but appeared to accept it was not. He said it did not make any difference: while acknowledging the role evolved over time, he insisted the parameters of the role were always clear. He assumed it was clear to Ms Reid, too, as he did not recall her raising the issue again after the email dated 21 May 2009. In cross-examination, Mr Miller said he did not recall any change in the applicant’s behaviour after the email exchange.
Mr Miller’s assessment of the scope of the role is difficult to square with all of the evidence. The applicant appeared to perform a variety of tasks that ranged beyond the parameters of the role he described. For example, the applicant appeared to provide clerical support to Mr Miller (exhibit one at p 319); she also clearly performed a range of tasks in connection with workplace health and safety matters even though Mr Miller said at the end of cross-examination he did not recall her playing a significant role in relation to that function. That may have been right in the early days of her time in the section, but Ms Reid clearly came to have such a role: see, for example, the list of tasks she was required to complete following a meeting on 27 January 2012 (exhibit one at p 509). It is possible Mr Miller’s evidence about Ms Reid’s role and performance is of less value after his team expanded in 2009 and he focused on his wider portfolio of responsibilities and left the supervision of Ms Reid to Ms Bale.
In any event, Mr Miller’s evidence in relation to the position description does not appear to take account of the comments in Ms Reid’s email of 27 November 2009 addressed to Mr Miller (exhibit one at p 384) where she noted “my position is (rapidly) evolving” and reported she was dealing with “a mess”. Those remarks reflect an ongoing degree of discomfort with the definition of her role and the range of responsibilities she was required to discharge.
Mr Miller acknowledged Ms Reid had conceived the WERT program and overseen its implementation. He nominated Ms Reid for a CEO’s Commendation in respect of that work in February 2011. But he said in his statement (exhibit 18) that he was also becoming critical of Ms Reid’s performance in some respects. He said (at [7]) Ms Reid:
…lacked necessary organisational skills and had poor time-management. As an employee, Rhondda required close supervision to ensure that she stayed on task and completed required tasks on schedule.
Mr Miller expressly rejected Ms Reid’s claim that she was seriously overworked. He said in his statement (exhibit 19) that Ms Reid rarely worked more than seven hours and twenty four minutes each day: at [7]. He noted: “Rhondda was usually one of the first staff to leave the office at the end of the day.” (Ms Reid agreed in cross-examination she would usually leave the office by 5pm, but she insisted she rarely left before 4pm and might start work by 7.30am on some mornings.) He said Ms Reid’s position was actually quite narrow. It was an administrative support role – she was a coordinator who liaised with stakeholders and contractors and provided secretariat services to the Emergency Planning Committees around the country – and she did not supervise staff: at [9]. He repeated that view in his oral evidence. He also said he did not think she required assistance to do the work. That view of the role suggests it was more limited than some of the documents indicate. For example, Ms Bale mentioned in her email to Ms Reid dated 4 November 2011 (exhibit one at p 260) that the applicant was a “project leader” and she had “full authority to put pressure on people to keep the project moving if you believe it is necessary.” In another email from Ms Bale dated 27 January 2012 (exhibit one at p 509), Ms Bale set out a long list of tasks that Ms Reid was required to complete following a meeting. The instructions in the email suggest the applicant was required to do more than simply liaise with stakeholders: the note contemplates Ms Reid undertaking drafting tasks, for example. There was another exchange of emails in which Ms Bale and the applicant discussed the enormous number of meetings of the various Emergency Planning Committees at each site around the country that would have to be coordinated: exhibit one at pp 510-511. While Mr Miller denied in cross-examination that Ms Reid was expected to attend all of those meetings herself, it was apparent from the email exchange that she regarded coordination as an onerous responsibility. When she reported the number of meetings that were anticipated to Ms Bale, Ms Bale’s response commenced with “OMG” to underline her surprise at the scale of the undertaking: exhibit one at p 510. Those documents tend to confirm the applicant expected to operate at a higher level than Mr Miller suggested. Again, the discrepancy is probably explained by the fact Mr Miller was not as closely involved with Ms Reid after his portfolio of responsibilities expanded in 2009.
In his statement (exhibit 18), Mr Miller noted Ms Bale was able to handle Ms Reid’s role as well as her own when Ms Reid went on leave: at [28]. It was apparent Mr Miller thinks (and presumably thought at the time) that Ms Reid was making something of a meal of her position. He also ventured (exhibit 19 at [8]) that “[i]f Rhondda was struggling with her workload I would have expected her to tell Brioni or myself, so that appropriate assistance could be arranged.”
But there is evidence of Ms Reid complaining to Mr Miller about her workload and reporting that she was experiencing serious stress from a relatively early point. It is contained in an email from the applicant to Mr Miller dated 27 November 2009 (reproduced in exhibit one at p 384). Ms Reid said:
As you may be aware, my position is (rapidly) evolving to include assisting Property to coordinate the ECOs (and some interim training), at all/most/a lot of our properties. It’s a mess and most nights I don’t sleep much, because of all the stuff in my head and sometimes anxiety in my stomach.
As you may have observed, I am a little swamped (lately?) and am not maintaining my own standards to attend to all requests/matters, in a timely manner. My apologies for missing some stuff and impacting on your work, however, I am endeavouring to improve this.
Ms Reid proposed that she would be better able to cope if she were permitted to work from home on a regular basis where she felt she was more productive. Mr Miller responded by saying he was unwilling to approve a regular arrangement under which Ms Reid worked at home, but he did not otherwise respond to her cri de coeur about the workload. Ms Bale, who received Ms Reid’s email, responded with a brief note saying she had no objection to the applicant working at home but she did not take up the issue of workloads either: exhibit one at p 386.
Ms Bale acknowledged in her statement (exhibit 22) that Ms Reid “had expressed the view on a number of occasions that her workload required more than one person in the position”. Ms Bale said she disagreed with that view, and pointed out she was able to take on Ms Reid’s role in addition to her own without difficulty after the applicant left work on 31 July 2012. Indeed, Mr Miller informed the applicant by letter dated 30 January 2013 that Airservices had conducted an internal review of Ms Reid’s position and decided the role was properly “sized” as an ASA level 5 position, whereas Ms Reid was being remunerated at ASA level 6. This letter was delivered to the applicant’s solicitors around six months after the applicant had left the workplace. Ms Reid said in her evidence that she thought the tone of the letter was aggressive, and amounted to a perpetuation of the bullying she now claims she experienced at Airservices. It was one of several letters the applicant said was problematic. She also referred to an email from a Ms Glover at Airservices dated 31 January 2013 (exhibit one at p 97) that questioned the genuineness of a medical certificate provided by the applicant’s treating general practitioner and referred to an overpayment to Ms Reid.
It may be that Ms Reid was making rather more of the role than her superiors thought she should. I accept the role could have been done by a single competent, trained individual. I am also inclined to the view that the deterioration in the relationship between Mr Miller, Ms Bale and Ms Reid after early 2011 may have been exacerbated by the fact the relationship was previously so close. But it is clear from the evidence that:
·     the applicant was not selected for the role on the basis of relevant qualifications or experience;
·     Mr Miller in particular did not have a clear handle on what Ms Reid’s role entailed over time, so it was impossible for him to assess whether Ms Reid was suitable to the evolving nature of that role;
·     Ms Reid was struggling with the magnitude of the task that she perceived she was expected to perform (particularly after she was told in a briefing that she might be held personally liable);
·     Mr Miller and Ms Bale were aware the applicant was struggling in the role and experiencing stress as a result of that role, quite apart from the stress she was experiencing as a consequence of her mother’s illness. Mr Miller and Ms Bale chose not to address identified shortcomings in Ms Reid’s performance by providing support or training or by redefining or clarifying the role. Ms Bale preferred to manage the applicant more actively, which merely served to increase pressure;
·     Ms Reid’s failure to obtain a regular work-at-home arrangement was not, of itself, a source of upset. Similarly, the failure to secure agreement for transfer to a part-time role was not, of itself, a source of stress.
There was at least one other potential stressor referred to in the course of the evidence: I refer to the break-up of a romantic relationship between Ms Reid and a man in August 2010. Ms Reid was asked about her relationship and its demise when she gave evidence at the hearing. She said the relationship was not especially serious and it ended when her friend moved interstate. She said she did not seek medical assistance because she was not especially troubled by the experience. I have no reason to doubt her evidence in this regard.
The medical evidence
The applicant’s treating psychiatrist is Dr Holm. He provided two reports (exhibits 9 and 10). He also gave evidence at the hearing after reading the report from the respondent’s expert, Dr Varghese.
Dr Holm confirmed in his oral evidence that the applicant probably experienced major depression. He had earlier suggested the applicant suffered from chronic adjustment disorder with depressed and anxious mood; he explained in his oral evidence that was probably the appropriate diagnosis at some point as the applicant was, in his view, demonstrating symptoms prior to her transfer to Brisbane in mid-2011. But he agreed the symptoms were of sufficient severity to warrant a formal diagnosis of major depression by July 2012 when Ms Reid left work. In cross-examination, he said he hesitated to call the condition recurrent major depression even though he became aware the applicant had experienced some symptoms of depression in the past. He explained he could not be sure those earlier symptoms were of sufficient severity to justify a diagnosis of major depression.
Dr Holm said in cross-examination that the history he took of workplace conflict and stress as a consequence of overwork was enough to precipitate the onset of major depression. He agreed major depression was typically multi-factorial in origin, and acknowledged that her mother’s health was also a significant source of stress for Ms Reid. He doubted that the fact the applicant appeared to commence menopause in 2010 was relevant: he said he would expect the depression to be more pronounced before 2012 if menopause played a significant role.
Dr Chau, a consultant psychiatrist called by the applicant, diagnosed Ms Reid with chronic adjustment disorder with depressed mood: exhibit 12 at p 27. She suggested the date of onset was towards the end of 2009. She said the principal stressor was the applicant’s sense that she was not equal to the job because of poor training and the volume of work. (She also said the employer had treated the applicant unfairly in relation to the meeting of 17 October 2011, and there may have been a contribution made by the conduct of Airservices after she stopped work – but those things all occurred after the date of onset of her condition, so they cannot explain it.) Dr Chau also noted in her oral evidence that the applicant was a perfectionist, and that being unable to do her work would be especially burdensome for her.
Dr Fitzgerald, a consultant psychiatrist, opined the applicant experienced major depression when he saw her on 23 October 2012. He noted the applicant said she was upset at the failure to allow her to work part time. That news was apparently delivered in a meeting in July 2012: exhibit one at p 79. Dr Jetnikoff, a psychiatrist who prepared a fitness report at the request of the respondent, also referred to the July 2012 meeting and the inability to obtain approval of a part-time work arrangement: exhibit one at pp 671ff. He diagnosed major depression that was probably recurrent. I note Dr Jetnikoff was not asked in that report to focus on questions of causation. Ms Gardener, a psychologist who saw Ms Reid at the rooms of her general practitioner, agreed the applicant suffered from major depression. She recalled in her oral evidence that Ms Reid complained of being harassed at work and overworked, although her clinical notes do not refer to overwork. Ms Gardener said the applicant did not highlight stress caused by her mother’s illness, although Ms Gardener conceded the applicant tended to ruminate on the workplace issues.
That brings me to the evidence of Dr Varghese, the consultant psychiatrist called by the respondent. Dr Varghese provided a detailed report and a supplementary report (exhibits 20 and 21), and he also gave evidence at the hearing.
Dr Varghese took a detailed history and concluded the applicant had experienced episodes of depression in the past – most obviously in 2008 when she had reported feeling anguish and physical exhaustion. In those circumstances, he said it was appropriate to diagnose recurrent major depression. He said it was not appropriate to diagnose an adjustment disorder if the patient’s symptoms met the criteria for major depression, the more serious condition. He added it was possible the applicant’s major depression was currently in remission, and that she was again suffering from an adjustment disorder if the stressor was still present. Dr Varghese said there were signs of depression in early 2011 when the applicant reported anxiety and lethargy to her haematologist, Dr Crispin: see note at exhibit 20, p 16. In cross-examination, he agreed symptoms may have been present even earlier.

Dr Varghese opined that the applicant’s recurrent major depression was likely to be multi-factorial in origin: exhibit 20 at p 17. He suggested in his oral evidence that the condition could be associated with menopause, the stress of dealing with her mother, features of her personality, or other stressful events – including difficulties in the workplace.
Dr Varghese agreed the applicant’s account of conflict with her managers and being overworked, undertrained and micro-managed could have made a significant contribution to the onset or aggravation of the condition that was certainly present by mid-2012 when she ceased work. He agreed in cross-examination that major depression tends to build up over time, so the applicant was almost certainly experiencing symptoms of depression before the date on which she stopped work, when it all became too much. The real issue, though, was whether the applicant experienced stressors at work that precipitated the depression – or did she develop the depression as a consequence of other factors, and then misperceived events in the workplace as a consequence of that unrelated condition? Dr Varghese said the difference between he and Dr Holm was that Dr Holm was prepared to accept the applicant’s account and assumed the events she described occurred and that they precipitated the onset of the condition. Dr Varghese was not so sure: he said it was possible “Ms Reid’s perception of the workplace and her being put on diminished performance were a consequence of developing Major Depression as against the cause”: exhibit 21.
I accept the opinions of Dr Holm and Dr Varghese that the applicant was suffering from major depression in mid-2012 when she ceased work. Dr Holm is the treating psychiatrist who has had the opportunity to observe the applicant for some time, while Dr Varghese is a well-credentialed expert who was able to refer in detail to the diagnostic criteria as a basis for his conclusion. I accept Dr Varghese’s opinion that the condition was properly characterised as recurrent major depression in light of his detailed examination of the applicant’s history that identified at least one previous episode of depression in 2008. I also accept the evidence of both experts that the condition was likely to be building up over a significant period of time. Symptoms may have been present from as early as 2009 or 2010, as Dr Chau suggests. It follows the events in late 2011 or July 2012 (most obviously the scheduled meeting with Ms Bale) and beyond (such as the correspondence about the medical certificate and the re-sizing of Ms Reid’s position) are not significant for present purposes. The condition had begun to take hold insidiously some time before, most likely while the applicant was still working in Canberra.
I note there was a consensus amongst the experts that the condition was likely to be multi-factorial in origin. One can readily accept the stress associated with the applicant’s mother’s illness played a role in the onset of Ms Reid’s condition. But what of the workplace stressors?
The legal issue turns on whether the applicant suffered an injury within the meaning of s 5A of the Act. The answer to that question turns on whether she suffered a disease within the meaning of s 5B, or an injury (including a mental injury) “arising out of, or in the course of, the employee's employment”.
Counsel for the applicant urged me to conclude the applicant experienced a disease within the meaning of s 5B of the Act. Section 5B(1) says a disease includes an ailment (or aggravation…of an ailment):
…that was contributed to, to a significant degree, by the employee's employment…
Sub-section (3) adds that “a significant degree” means “a degree that is substantially more than material”. It is possible a number of factors might make a contribution that is “substantially more than material”.
When assessing whether the applicant’s employment made a significant contribution to the onset of her condition, I may consider a non-exhaustive list of factors referred to in sub-section (2). As it happens, I think the following factors are particularly important to my decision:
·The applicant has a long history of mental illness. Dr Varghese referred to other episodes of depression over a long period, with one episode in particular that occurred in 2008. It is possible the applicant also has personality issues like those identified by Dr Chau. In any event, the applicant’s psychiatric history suggests she has a predisposition to the development of depression;
·The applicant was experiencing symptoms of depression prior to her move to Brisbane in 2011, and prior to most of the interactions the applicant perceived as examples of aggressive micro-management – interactions that might (at least in some instances) be regarded as administrative action for the purposes of the Act. If the condition pre-dated the examples of administrative action, the exclusion in s 5A is not available to the respondent – but nor can the applicant rely on those interactions as explanations for the condition which was already emerging;
·The applicant’s mother’s health crisis during the period in question was clearly a significant source of stress. Other “non-work” factors, including menopause, may also have made a minor contribution;
·The applicant was not properly trained to perform the role in question, and she had no relevant qualifications or experience. She was not provided with training to perform the role. She understandably felt unequal to the task, at least as she understood that task was described;
·The role was never clearly defined, and the employer knew the applicant was concerned about the scope of her job. The role also appeared to be more extensive than acknowledged by Mr Miller: the applicant was expected to act as a project manager and the limits to her role (for example, the role she was expected to play in coordinating meetings of the Emergency Planning Committees) were never properly explained so that she was allowed to form the impression her role was more demanding than it might otherwise have been;
·The applicant had been told she may be held personally responsible under workplace health and safety laws if she was aware of shortcomings that resulted in death or injury; and
·The applicant regularly complained of being stressed and overworked. While there is evidence she may have misperceived the workload – perhaps as a consequence of her psychiatric symptoms - her requests for assistance were not addressed.
I am mindful of Dr Varghese’s warning that the applicant may have become distressed because her perception of events may have been distorted by psychiatric symptoms that were emerging by 2011, or perhaps even earlier. I accept her perception of interactions with Ms Bale in late 2011 and thereafter should be seen in that light: I am not satisfied the evidence establishes Mr Miller or Ms Bale behaved aggressively or inappropriately or vindictively towards the applicant. Indeed, Mr Miller and Ms Bale appear to have displayed considerable kindness and patience in their dealings with the applicant; if anything, they may have become too familiar with her and looked past warning signs that other managers might have detected earlier.
I am satisfied there were objective factors in the applicant’s workplace that did cause her stress from the time of her appointment to Mr Miller’s team: the lack of preparation and training for a poorly-defined role, the intimation that the applicant might be exposed to personal liability in the event of any problems, and the failure to respond to calls for assistance. I note Dr Varghese acknowledged that factors of that kind might make a contribution to the onset of symptoms if I was satisfied they existed otherwise than in the imagination of the applicant; I am, in fact, satisfied those stressors were present at the relevant time. I am not satisfied the failure to obtain a benefit in the form of a formal work-from-home arrangement in late 2009 was a source of stress, even though I accept the applicant wanted such an arrangement and renewed the request in due course.
I am satisfied the stressors arising in the applicant’s workplace before she transferred to Brisbane did make a contribution to the condition. But was it a significant contribution in the sense it was ‘substantially more than material”?
The evidence clearly establishes the applicant was deeply (and understandably) distressed by her mother’s health condition from the beginning of 2011. I think it likely the stress generated on that front made a contribution to the onset of symptoms that was substantially more than material. That does not preclude a finding that the applicant’s workplace stressors also made a material contribution to the onset of symptoms. I am satisfied the evidence I have discussed confirms those stressors made at least a material contribution – but, again, was the contribution substantially greater than that?
I am satisfied the medical and other evidence establishes the workplace stressors on their own were enough to trigger the onset of depression in this individual. She was carrying a heavy burden of responsibility given she was untrained. She was admittedly vulnerable to depression, and the stress of dealing with her mother’s situation might also have resulted in the onset of depression if that had occurred in isolation. But the stress the applicant was obviously experiencing at work as a consequence of identified stressors from an early point was real, and obvious. That stress was not just the “final straw”: I am satisfied the contribution of the workplace stressors was significant in the sense intended by the Act.
The decision under review must be set aside. In substitution, I find the respondent is liable pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988.

61. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

.........................[sgd].................................
Associate
Dated 29 April 2016

Date of hearing 19 November 2015

Counsel for the Applicant

Solicitors for the Applicant

Mr S Richardson

Shine Lawyers

Counsel for the Respondent

Solicitors for the Respondent

Mr A Harding

Sparke Helmore

[2016] AATA 276

29 April 2016

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Judicial Review

Remedies

Statutory Construction

Division	GENERAL DIVISION
File Number	2013/6771
Re	Rhondda Reid
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Bernard McCabe
Date	29 April 2016
Place	Brisbane