Ritson and Comcare (Compensation)
[2019] AATA 154
•15 February 2019
Ritson and Comcare (Compensation) [2019] AATA 154 (15 February 2019)
Division: GENERAL DIVISION
File Number(s): 2016/1794
Re:Brendan Ritson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:15 February 2019
Place:Brisbane
In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the reviewable decision is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Act for the condition of major depressive disorder.
For the purposes of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 14 December 2015 being the date when the applicant first sought medical treatment for the disease.
The respondent is liable to pay the applicant’s legal costs incurred in the proceedings of an amount agreed between the parties, and failing agreement between the parties, the respondent is liable to pay costs in an amount as taxed by the Registrar or an officer of the Tribunal pursuant to s 67 of the Act.
............................[SGD]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for mental injury arising out of the applicant’s employment – whether the applicant suffered an ailment or aggravation of an existing ailment that was contributed to, to a significant degree, by the employee’s employment – application under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)CASES
Comcare v Martin (2016) 339 ALR 1
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hennessey-Milne and Comcare [2018] AATA 4453
Jones v Dunkel (1959) 101 CLR 298
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
Ritson v Director of Fair Work Building Industry Inspectorate & Anor [2016] FCCA 2926
Smith v Comcare [2015] FCAFC 24
SECONDARY MATERIALS
General Practice Direction (26 March 2007)
Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis Butterworths, 2nd ed, 2007)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
15 February 2019
INTRODUCTION
The applicant, Mr Brendan Ritson, has submitted a claim for compensation for “anxiety and depression”, which was made in respect of a psychiatric injury allegedly sustained in the course of his employment with Fair Work Building and Construction (“FWBC”).
CLAIM HISTORY
The applicant commenced employment as an APS 5 level investigator with Fair Work Building and Construction (“FWBC”) on 20 July 2015. On 14 December 2015 the applicant was advised that FWBC was considering terminating his employment.
On 15 December 2015 the applicant submitted a claim for workers compensation in relation to “anxiety and depression”.[1] On the claim form the applicant stated that he had first noticed the condition on 27 November 2015 at approximately 8:50am, and that he first sought medical treatment on 14 December 2015. The applicant attached a statement dated 7 December 2015 which detailed the circumstances surrounding the development of the conditions.
[1] Exhibit A, T-Documents, T11, at p. 51.
The applicant’s employment with FWBC was terminated on 16 December 2015.
On 9 February 2016 the respondent determined that they were not liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the applicant’s claimed condition. It was determined that the applicant had suffered an ailment that the applicant’s employment significantly contributed to; but the condition arose as a result of reasonable administrative action taken in a reasonable manner in respect of his employment and therefore the claim was excluded under s 5A(1) of the Act.
On 2 March 2016 the applicant requested a reconsideration of that decision on the grounds that the determination was “procedurally unfair and investigation biased”.[2] The applicant provided additional evidence in support of his request for a reconsideration. On 1 April 2016 the respondent affirmed the original determination, and on 4 April 2016 the applicant applied for review of this decision by the Tribunal.
[2] Exhibit A, T-Documents, T22.1.
LEGISLATIVE FRAMEWORK
Section 14 of the Act prescribes the circumstances where the respondent is liable to pay compensation to an applicant.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A of the Act contains the definition of ‘injury’, while s 5B of the Act contains the definition of ‘disease’.
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in s 4 of the Act to be “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
THE APPLICANT’S ALLEGATIONS
The applicant has made a number of allegations about events which took place in his workplace, specifically on 13, 14 and 15 October 2015, and on 11, 20, 23 and 27 November 2015. In a statement provided in support of the applicant’s claim for compensation, dated 7 December 2015, it contained a number of allegations concerning incidents, including when he was punched in the back by Mr Kevin Cooper.[3] The applicant gave evidence that Mr Cooper was his supervisor from around October 2015 to the end of November 2015. Prior to and subsequent to this the applicant was supervised by Mr Graeme Hogan.
[3] Exhibit A, T-Documents, T10.
The applicant has stated that his relationship with Mr Cooper was fine in the beginning, but changed after the first alleged incident of 14 October 2015. Prior to that time there had been some occasional instances of micro-management, and Mr Cooper would do things like “yell out across the room to me in the presence of other staff”.[4] He also did not notice that his colleagues were micro-managed by Mr Cooper in the same way.
[4] Id.
The applicant wrote a series of file notes over October and November 2015, to document some of the interactions he had with Mr Cooper. The file notes were all drafted in late November 2015, and were based primarily on written material kept by the applicant, such as post-it-notes.[5]
[5] Ibid at pp. 34, 36 and 37.
14 October 2015
The applicant drafted a series of file notes dated 13, 14 and 15 October 2015 which concerned an incident which took place on 14 October 2015. The applicant has stated that the incident “caused me concern and was essentially an allegation of misconduct on my part”.[6]
[6] Id.
The file note of 13 October 2015 outlined the following sequence of events:[7]
·The applicant advised Mr Hogan that he could travel to the Toowoomba site on 14 October 2015;
·A short time later the applicant told Mr Hogan that he had forgotten that he had a doctor’s appointment at 10am on 14 October 2015, and could not travel to the Toowoomba site unless it was after midday;
·At 4:42pm the applicant received a text message from Mr Cooper stating, “Brendan, what appointment is it that you have at 10am”;
·At 5:33pm the applicant sent a text message to Mr Cooper stating, “Doctor’s appointment. I was meant to discuss with you taking flex from 9am to about 11am, however I forgot. Is that OK?”;
·At 5:52pm the applicant received a text message from Mr Cooper stating, “No problem”.
[7] Exhibit A, T-Documents, T3, at p. 15.
The file note of 14 October 2015 outlined the following sequence of events:[8]
[8] Ibid at pp. 15-16.
·The applicant attended a doctor’s appointment, but it was delayed;
·At 11:26am the applicant sent a text message to Mr Cooper stating, “Kev, just letting you know I’ve been delayed and will be in the office no later than 12:30. I should have sufficient flex time in the bank. Cheers, Brendan.”;
·At about 12:45pm Mr Cooper approached the applicant at his desk and asked the applicant to follow him to the meeting room, where Mr Hogan was also present;
·Mr Cooper accused the applicant of not having a doctor’s appointment that morning, and of having worked for QLD Corrective Services the previous night;
·The applicant denied both accusations and offered to provide proof;
·The applicant felt like he was being “interrogated” by Mr Cooper and “treated like a criminal”;
·The applicant advised that he had only worked one shift for QLD Corrective Services, on 3 October 2015, after he was approved to engage in other employment;
·The applicant produced the receipt of his doctor’s appointment that morning to Mr Cooper, who said that he did not need to view it;
·The applicant advised Mr Cooper that he would like him to take a copy of the receipt to remove any doubt that he had engaged in unauthorised employment, but Mr Cooper declined to take the copy and said to “forget about the issue”;
·This interaction caused the applicant embarrassment and “significant distress”.
The file note of 15 October 2015 outlined the following sequence of events:[9]
·At 8:30am the applicant boarded a bus to work. This trip usually took about 10 minutes, but on this day his bus stopped behind another broken down bus for over 20 minutes;
·The applicant arrived at work at about 9:10am, and a few minutes later entered the training that was scheduled for that day;
·After the training, Mr Cooper approached the applicant at his desk and said that they “had to have another discussion”;
·The applicant and Mr Cooper went to the meeting room. Mr Cooper asked why the applicant was late, and the applicant recounted what occurred with his bus;
·Mr Cooper told the applicant he needed to start work at 8:30am now instead of 9:00am;
·A short time later the applicant obtained his go card history which showed that his bus trip that morning took 36 minutes. He produced this document to Mr Cooper, but Mr Cooper said that he did not need it.
[9] Ibid at p. 16.
In the applicant’s statement, he said that one issue not included in his file notes was that during his conversation with Mr Cooper on 15 October 2015 he raised that he was not happy with the way Mr Cooper had spoken to him when he accused the applicant of having worked for Corrective Services a couple of nights previously.[10] The applicant told Mr Cooper that he did not appreciate the accusation, and that he had produced receipts but Mr Cooper was dismissive of them. After that conversation Mr Cooper said, “Don’t worry about it”. The applicant “did not know where I stood”, but Mr Cooper advised him to forget about it and move on.
[10] Exhibit A, T-Documents, T10, at p. 35.
The applicant also clarified that Mr Cooper advised him that Ms Pina Busato, the State Manager, would prefer him to start at 8:30am instead of 9:00am.[11] The applicant noted that that was not an issue for him.
[11] Id.
11 November 2015
The file note dated 11 November 2015 outlined the following sequence of events:[12]
·Shortly before 11:00am the applicant was standing at his desk when Mr Cooper approached him from behind and punched him in the lower back in quick succession about four times. Mr Cooper was breathing out loudly in the same manner as boxers do;
·The punches were not very forceful but did cause the applicant’s torso to push up against his desk;
·The applicant had never engaged in any “horseplay” with Mr Cooper, and his conduct took the applicant by surprise;
·The applicant then sat down at his desk;
·Mr Cooper’s conduct was unwelcome and made the applicant “feel quite uncomfortable”.
[12] Exhibit A, T-Documents, T4.
In his statement the applicant clarified that he did not believe Mr Cooper was trying to assault him.[13] He stated that had a working relationship with Mr Cooper, but he did not feel as though they were “mates”. He did not know what to think when Mr Cooper punched him in the back, and it was uncharacteristic. The interaction caused the applicant to become confused about how he should interact with Mr Cooper going forward. The applicant speculated that he may have said something like “Whoa” when Mr Cooper punched him, but he doesn’t think he said anything else.
[13] Id.
23 November 2015
The applicant wrote two file notes dated 20 and 23 November 2015.[14] The file note dated 20 November 2015 outlined the following sequence of events:
[14] Exhibit A-T-Documents, T5, at pp. 18-20.
·At 8:30am Mr Cooper advised the applicant that he was going to accompany him to the Southport site;
·The applicant advised Mr Cooper that if he went, a particular task (the “CDR”) would not be finalised that day in accordance with the due date on their system;
·Mr Cooper stated that the due date for the CDR would be revised, and it could be discussed during a file review on Monday 23 November;
·The applicant felt he “had no choice” and had to accompany Mr Cooper;
·During the drive to Southport, the applicant asked Mr Cooper about his leave entitlements. He spoke about the appearance of an inconsistency between leave available to him and to his co-worker, who were both at the same level and had commenced their employment around the same time;
·Mr Cooper “raised his voice at me and said that I had to ‘stop this’”;
·The applicant explained that he did not intend to cause trouble but he wanted to ensure he was getting the same leave entitlements as his co-workers;
·Mr Cooper said that his co-worker may have purchased additional leave. The applicant stated that he was not aware that this was an option;
·Mr Cooper said that the applicant and his co-worker had to stop arguing over who was going to get the next APS 6 level position;
·The applicant told Mr Cooper that he had never had a conversation about that with his co-worker;
·Mr Cooper stated that the applicant had mentioned getting an APS 6 position to somebody else. The applicant explained that he had been asked about his ambitions and he enquired about his eligibility for an APS 6 role given he was on a merit list;
·Mr Cooper stated that the applicant would not get an APS 6 role if he kept asking about it;
·The applicant asked Mr Cooper about the opportunity of working from home like other staff, and Mr Cooper said that it was unlikely he would allow the applicant to work from home because he lived so close to work;
·The applicant said to Mr Cooper that it seemed inequitable that other staff had worked from home on days when they had personal appointments, but the applicant had to take annual leave days when he had personal appointments;
·Mr Cooper stated that he had only worked from home once because he had a personal appointment that he could not get out of;
·The applicant told Mr Cooper that there was some inconsistency, and he hoped to get clarification so he knew what to expect in the future;
·When Mr Cooper and the applicant met with staff at the Southport site Mr Cooper introduced himself as the Queensland Assistant Director. Mr Cooper had introduced himself in the same way previously. The applicant had spoken to Mr Cooper about his change in title from Assistant Director to Team Leader and Mr Cooper expressed his displeasure about it;
·At 4:42pm the applicant called Mr Cooper on his mobile to advise that his cabinet had been left open and his laptop had been left unsecured on his desk. Mr Cooper asked the applicant to secure the laptop in the cabinet and thanked the applicant for calling him about it.
The applicant has stated that during their conversation in the car, Mr Cooper’s voice was “very assertive in tone, and he spoke at louder volume”.[15]
[15] Exhibit A-T-Documents, T10, at p. 39.
The applicant also later stated that he and Mr Cooper had a further conversation about leave that was not included in his file note. The applicant told Mr Cooper that he understood that Ms Busato wanted to know everyone’s leave commitments prior to January 2016, and he had already emailed Mr Cooper about his leave commitments. He went on to say that he may need to take one day off in about 2 weeks’ time to travel to Adelaide, which was not mentioned in his email. This caused Mr Cooper to go “on a verbal tirade”, saying things like “You’re making me look bad, you have to stop making me look bad. Pina asked for these dates, you can’t just turn around and ask for two weeks off.”
The applicant corrected Mr Cooper that he did not need two weeks leave, rather leave in two weeks’ time for one day. Mr Cooper apologised and his anger level went down quickly. The applicant stated that Mr Cooper then made comments in order to save face, like, “You remind me of me, you’re ambitious. You’ve just got to watch yourself. I’ve recently had a kick up the butt at work.”
The file note of 23 November 2015 outlined the following sequence of events:[16]
·At 9:18am Mr Cooper emailed the applicant asking for a copy of the CDR. The applicant was surprised to receive this email given their conversation on 20 November 2015;
·The applicant walked over to Mr Cooper’s desk and asked why he had sent the email, given that he knew the CDR wouldn’t be finalised because of their trip to Southport;
·Mr Cooper told the applicant that, “I have to stop letting people down and that I was making him look bad”;
·The applicant told Mr Cooper that he had not let anyone down and was not making him look bad;
·Mr Cooper stated that the due date for the CDR was 20 November 2015 and the applicant had failed to finalise it by then;
·The applicant told Mr Cooper that he understood that a due date was tentative and subject to change. Mr Cooper told him due dates were not tentative;
·The applicant advised that he was confused in light of their discussion on 20 November 2015 that the CDR would be revised and it could be discussed during a file review on 23 November;
·Mr Cooper continued to criticise the applicant about making him look bad. He spoke to the applicant in a “belligerent tone” within hearing range of other staff in the office. This caused the applicant “embarrassment and distress”.
[16] Exhibit A-T-Documents, T5, at pp. 19-20.
The applicant’s statement referred to Mr Cooper’s tone and demeanour at the beginning of their conversation as “somewhat normal”, but he noted that Mr Cooper did raise his voice.[17] He also remarked that Mr Cooper had a “smirk” on his face which made the applicant think that Mr Cooper was “trying to set me up for a fall”.
[17] Exhibit A-T-Documents, T10, at p. 40.
The applicant stated that, by 23 November 2015, he believes his relationship with Mr Cooper was “going sour”.[18] Prior to that point his relationship with Mr Cooper had been “manageable”, but his conversation with Mr Cooper on 23 November 2015 evidenced that he had been dishonest with the applicant who felt that he could not trust Mr Cooper.
[18] Exhibit A-T-Documents, T10, at p. 37.
In his statement the applicant elaborated on the events of 23 November 2015, stating that Mr Cooper wanted the CDR to recommend that matter be finalised.[19] The applicant was not comfortable recommending this course of action, and he felt that he was put in a “difficult situation” as he had to work out how he could write the CDR.
[19] Ibid at p. 38.
The applicant has stated that he was supposed to be doing sub-contractor interviews that day, and told Mr Cooper as much. Mr Cooper told him to do the sub-contractor interviews, which made the applicant confused about the priorities.[20]
[20] Ibid at p. 41.
When the applicant returned from doing sub-contractor interviews, Mr Cooper had left for the day. Another of the investigators, JR, had injured his finger and the applicant understood that he did not have medical clearance to go out on site for an audit the next day. The applicant spoke with Ms Busato and KM and, to the best of his recollection, does not recall either of them having knowledge about the medical clearance. The applicant has stated that Ms Busato was of the belief, based on a notation on her whiteboard, that the audit was actually on 25 November 2015. Ms Busato also stated that Mr Cooper had told her that everyone in his team would be present in the office on 24 November 2015.
The applicant has stated that he tried to call JR twice that afternoon, to clarify whether he had received medical clearance and when the audit had been scheduled for. The applicant was unable to get in contact with JR.[21]
[21] Exhibit A-T-Documents, T10, at p. 42.
At about 7:32am the next day, on 24 November 2015, the applicant rang KM to establish if JR had received medical clearance. KM told him that JR did not have clearance. The applicant then left for work to take JR’s place on the audit.
When the applicant arrived at the office he booked travel accommodation and left with KM. Another investigator left in a second car to assist with the audit.[22]
[22] Id.
The applicant has drafted a brief file note regarding an email that was sent by Mr Cooper on 25 November 2015.[23] At 3:03pm Mr Cooper sent an email to the applicant stating:
“For my information, could you please advise me of the circumstances surrounding your arrival at work yesterday 24th November at approximately 8:10am.
I am aware that _____ were provided a time of arrival for FWBC in Toowoomba at 9am however staff did not leave the office until approximately 8:17am.
I am further aware that [KM] and [RN] arrived at work between 6am – 7am in order to drive to Toowoomba however had to wait for your arrival in order to leave.
I have been advised that the time of arrival in Toowoomba for staff was clearly communicated to be 9am.”[24]
[23] Exhibit A-T-Documents, T6, at p. 21.
[24] Exhibit A-T-Documents, T6.1, at p. 23.
A file note dated 26 November 2015 outlined the following sequence of events for that date: [25]
·The applicant approached Mr Cooper about his email of 25 November 2015. He asked why Mr Cooper had sent a formal email and if there was an issue. Mr Cooper said there was no issue;
·The applicant told Mr Cooper that he was not sure what the email was asking of him. Mr Cooper advised that it was asking about the circumstances of his arrival at work on 24 November 2015;
·The applicant told Mr Cooper that the circumstances of his arrival at work were that he was dropped off by his partner at about 7:45am, not 8:10am as stated in the email;
·Mr Cooper advised the applicant to put that information in an email;
·The applicant asked Mr Cooper whether there was some other issue, and Mr Cooper advised that there was not.
·At 2:50pm Mr Cooper sent the applicant an email reminding him to respond to his email about the audit, and requesting him to send a response prior to leaving work that day.
[25] Exhibit A-T-Documents, T6, at p. 21.
In his statement the applicant noted that Mr Cooper’s tone and demeanour throughout their conversation were “normal”.[26]
[26] Exhibit A, T-Documents, T10, at p. 43.
After their conversation the applicant worked on tasks that Mr Cooper had advised the team needed to be completed that day.[27] He then received the email from Mr Cooper at 2:50pm.
[27] Id.
At 4:31pm the applicant sent an email to Mr Cooper requesting authorisation to incur flex in order to comply with Mr Cooper’s requirement to respond to his email prior to leaving work that day. The applicant stated that it took him a while to write a response to Mr Cooper, as he felt he had to be clear and make sure all details were accurate as he did not know the purpose of the email.[28] The applicant sent his reply email to Mr Cooper at 5:44pm.[29]
[28] Id.
[29] Exhibit A, T-Documents, T6.1, at p. 22.
27 November 2015
The applicant made a file note dated 27 November 2015 entitled “Kevin Cooper abusing me in the presence of other staff”.[30] This file note outlined the following sequence of events:
[30] Exhibit A, T-Documents, T7.
·At about 8:50am the applicant was standing in front of his desk speaking with RN. At this time Mr Cooper was standing in front of his own desk and facing the applicant;
·Mr Cooper said to the applicant, “Are you joking?”;
·The applicant looked at Mr Cooper but did not respond. Mr Cooper repeated himself;
·The applicant said to Mr Cooper, “I beg your pardon Kevin”;
·Mr Cooper said to the applicant, “Is this a joke? You’re asking me to approve an hour of flex to send an email. You’re kidding yourself.”;
·There were three other people in the vicinity at the time;
·The applicant felt “extremely embarrassed and humiliated”. He felt that his request to incur flex in order to respond to Mr Cooper’s email was confidential;
·As the applicant walked towards Ms Busato’s office, Mr Cooper said to him, “You’re kidding yourself if you think I’m going to approve that. I’m denying your request.”;
·The applicant said to Mr Cooper, “Kevin, I don’t appreciate being spoken to in a belligerent tone of voice in front of other staff”;
·The applicant continued walking to Ms Busato’s office, but as she was not in her office the applicant left the building. He was feeling “extremely distressed”.
In his statement the applicant noted that Mr Cooper’s tone of voice during their above exchange was “condescending” and loud.[31] He also described Mr Cooper as having a “belligerent” tone.[32] He noted that he made a further comment to Mr Cooper after their exchange, which was not included in his file note, stating: “I’m not going to dignify that with a further response”.
[31] Exhibit A, T-Documents, T10, at p. 44.
[32] Ibid at p. 45.
When the applicant left the building after their exchange, he went to get a coffee downstairs and KM and Mr Ken Fitzjohn were at the coffee shop. He told them about what had happened between himself and Mr Cooper.[33]
[33] Id.
Mr Cooper sent the applicant an email at 8:53am stating that his flex time request was denied.[34] The applicant read this email while he was at the coffee shop.
[34] Exhibit A, T-Documents, T7.1.
When he returned from the coffee shop about 15-20 minutes later, the applicant wrote the above file note and printed off the emails. At this point he felt like going home.[35]
[35] Exhibit A, T-Documents, T10, at p. 45.
The applicant has drafted a further file note dated 27 November 2015, titled “Kevin Cooper requested that I accompany him to the meeting room”.[36] This file note continues on from the above sequence of events:
[36] Exhibit A, T-Documents, T8.
·At 10:36am the applicant sent Mr Cooper an email stating, “I request authorisation to take flex today from 1330 – 1630”;
·The applicant requested to take flex because he was feeling distressed about the manner in which Mr Cooper spoke to him that morning, and he was having difficulty concentrating;
·At 11:22am Mr Cooper sent the applicant an email stating, “Mate come and see me”;
·At 11:23am the applicant approached Mr Cooper and asked if he wanted to see him;
·Mr Cooper said, “Yes. Come for a walk”;
·As Mr Cooper was walking away, the applicant asked Mr Fitzjohn if he could come with him. Mr Fitzjohn agreed;
·Mr Cooper said, “No. Just you.”;
·The applicant stated, “I would like someone else present”;
·Mr Cooper said, “No. I’m your team leader and I said just you”;
·The applicant stated, “I know you’re my team leader, however I would like someone else present because of the manner in which you spoke to me this morning.”;
·Mr Cooper said, “Fine, I’ll tell Pina.”;
·There were several people at their desks in the vicinity at this time.
Following this exchange, Mr Cooper sent an email to the applicant at 11:25am stating that Ms Busato had requested to speak with the applicant prior to his departure that day.[37]
[37] Exhibit A, T-Documents, T8.1, at p 30
The applicant’s statement outlines that later that day he had a discussion with Ms Busato about what had happened that morning between himself and Mr Cooper.[38] The applicant told Ms Busato that he had got to the point where he was recording file notes of his interactions with Mr Cooper, and he was hoping things between he and Mr Cooper would resolve. He told Ms Busato that he decided he needed to speak with her after Mr Cooper had yelled out, “You’re joking” across the room to him. Ms Busato asked the applicant if he wanted to make a formal report about this. The applicant advised that he was not looking to escalate the complaint, and he just “wanted to get on with the job”, but he did not feel he could work in Mr Cooper’s team anymore. Ms Busato advised the applicant that it would be possible to move him to another team. The applicant requested to take flex time for the remainder of that day, and Ms Busato granted this request. The applicant went home that day at around 2:00pm.
[38] Exhibit A, T-Documents, T10, at p. 47.
The applicant has also drafted another unrelated file note dated 27 November 2015, which was titled “Failure to respond to request for authorisation to refer issue to FWO”.[39] This file note detailed that the applicant sent an email to Mr Cooper on 10 November 2015 which requested authorisation to refer a wages and entitlements issue to the Fair Work Ombudsman. The applicant noted that, to date, Mr Cooper had not responded to his email. The applicant’s statement highlighted that he spoke with Mr Cooper about this email and why he had not responded, and he recalled that Mr Cooper acknowledged his email and said that he would get back to the applicant. [40]
[39] Exhibit A, T-Documents, T9.
[40] Exhibit A, T-Documents, T10, at p. 36.
The applicant sent an email to himself dated 17 December 2015 which documented phone calls between himself and Ms Busato.[41] On 30 November 2015 the applicant received a voicemail message from Ms Busato which stated that she had called to see how the applicant was feeling. The applicant tried to return Ms Busato’s call later that day and left a voicemail message. On 4 December 2015, Ms Busato called the applicant again. She advised the applicant that she was calling to inform him that Mr Cooper had been suspended from duty pending a disciplinary investigation.
[41] Exhibit F.
14 December 2015
The applicant provided a statement dated 28 September 2016 in which he outlined his view of events which he said took place on 14 December 2015. The statement contained the following allegations:
·At about 8:40am on 14 December 2015 the applicant was standing at his desk when Catherine Higgins, Acting Team Leader, approached him and advised that Ms Busato wanted to have a meeting with him;
·The applicant was not told what the meeting was going to be about;
·The applicant went into a meeting room with Ms Busato, Ms Higgins and Mr Jenkinson;
·Ms Busato stated that she needed to speak to the applicant about his probation. She stated:
“Some information has come to light that indicates that you may not have made full disclosure to the agency in your application to be appointed as a Fair Work Industry Inspector. The agency takes non-disclosure very seriously and at this stage is considering terminating your employment with FWBC.”
·Ms Busato handed the applicant documents regarding the commencement of his employment, as well as several newspaper articles concerning the applicant. Ms Busato stated:
“These internet articles reveal that you were subject to criminal proceedings as a member of the NSW Police. The issue here is non-disclosure of that information to the agency in your application to be appointed as a Fair Work Industry Inspector.”
·Ms Busato advised that the applicant would be given until 9:00am tomorrow morning to respond to this issue;
·The applicant asked, “Where has this come from? Has a complaint been made?”;
·Ms Busato stated, “I’m not at liberty to say where it has come from”;
·The applicant stated, “This issue hasn’t just popped out of thin air. Someone has gone rifling through internet sites looking for this information”, and Ms Busato repeated her above statement;
·Ms Busato agreed to let the applicant go home early and to have the following day off;
·After the meeting the applicant left the office accompanied by Ms Higgins. Ms Higgins asked, “Are you alright? Do you want to go and have a coffee?”’
·The applicant responded, “The timing of this matter is very interesting. I need to go straight home to prepare my response. Thanks for your support.”;
·The applicant was not given any warning of the proposed meeting prior to it taking place. He was also not advised in writing of the allegations made against him, and was not provided the opportunity to have a support person present at the meeting;
·When he arrived home the applicant made a record of the meeting and emailed it to himself at 10:51am;
·At 12:13pm the applicant sent an email to Ms Busato, summarising what had occurred in the meeting and requesting that she set out the allegations in writing, including the information he had allegedly failed to disclose and the source of the obligation to disclose that information;
·At 4:04pm the applicant received an email from Ms Busato, which advised:
a) Media reports indicated that the applicant had been subject to disciplinary proceedings while employed at the NSW Police Force, including being suspended from duties in 2009 and investigations of alleged incidents in March 2006, April 2007 and June 2008;
b) Employees are required to declare that they have not been and are not currently subject to disciplinary action, and any other matters which might bring their good character into question or compromise the activities of the FWBC; and
c) The applicant failed to disclose these matters in the nomination form he signed on 20 July 2015;
·At 4:45pm on that same day, the applicant saw his general practitioner (“GP”), Dr Hoa Tran. He consulted Dr Tran in relation to the anxiety and depressed mood he had been suffering from since the incident with Mr Cooper on 27 November 2015. Dr Tran concluded that the applicant was unfit for work and issued a medical certificate, prescribed medication, and provided a referral for the applicant to see Dr Selwyn Smith, psychiatrist. Dr Tran’s diagnosis was that the applicant suffered from anxiety and depression.
The applicant’s oral evidence
The applicant gave extensive evidence at the hearing of this matter on 31 July 2017.
Incidents with Mr Cooper
The applicant gave evidence that his relationship with Mr Cooper was fine in the beginning, but there was a change when he was moved to Mr Cooper’s team in October 2015.
With respect to the 14 October 2015 incident, the applicant stated that he was “quite offended” at Mr Cooper’s apparent accusation that he had lied about having a doctor’s appointment and that he had worked for QLD Corrective Services the night before. The applicant saw this as an allegation of misconduct. As he wanted the record to be correct, he had insisted that Mr Cooper take the receipt for his medical appointment, but Mr Cooper told him to forget about it. He stated that he was embarrassed and humiliated that another colleague, Mr Hogan, was present when the allegations were made.
Regarding the 11 November 2015 incident, the applicant gave evidence that this encounter made him “very confused” and “very uncomfortable”, and Mr Cooper’s behaviour was “not welcome”. During cross-examination the applicant recalled that Mr Cooper had admitted to punching him. He confirmed that he did not raise with Mr Cooper that his behaviour was unwelcome or that he felt uncomfortable, stating that their relationship was “very strict” and there had never been any “horseplay”.
Regarding the 23 November 2015 incident, the applicant gave evidence that the email from Mr Cooper sent on that day left him “gobsmacked”. He stated that he was told to stop letting people down within earshot of his colleagues, which was “distressing”, as Mr Cooper had assured him that the due date for the task could be revised and it wouldn’t be an issue. He viewed this incident as another occasion of Mr Cooper making unfounded allegations.
The applicant also gave evidence that the incident on 27 November 2015 made him feel “extremely distressed”, having been spoken to like that by his supervisor in front of his colleagues. He felt that his relationship with Mr Cooper had escalated to the point that Mr Cooper was “being hostile to me openly in front of other people, without trying to conceal it”. After the incident, the applicant typed up a file note of the events which had just taken place.
During cross-examination, the applicant advised that he was not looking directly at Mr Cooper when he yelled out “are you joking”: however, he disagreed that Mr Cooper was smiling at the time.
The applicant was asked what he meant by feeling “distressed” after the incident. He explained that he was “feeling a lot of anxiety”, his heart was racing, and he wasn’t feeling himself. When it was put to the applicant that he has described feeling “distressed” on other occasions, the applicant clarified that on those occasions he felt anxiety and a bit of stress, but his heart was not racing. When asked if he was angry at Mr Cooper, he said no and advised that he was instead upset, embarrassed and humiliated.
The applicant confirmed that he requested flex leave for the remainder of 27 November 2015, not sick leave.
The applicant gave evidence that later that morning he called Mr Nick Harrigan, a friend and former police colleague. He stated that he called Mr Harrigan because he was “very distressed” and needed to talk to somebody. He noted that he had previously spoken to Mr Harrigan about the hostility he experienced from Mr Cooper, and in particular the “punching incident”.
During cross-examination the applicant confirmed that Mr Harrigan told him he should go and see a doctor about how he was feeling, but he did not go to a doctor until 14 December 2015.
The applicant stated that after that phone call he spoke with Ms Busato, and told her that “I was extremely upset and stressed about what had happened”. He was then allowed to go home early around 2:00pm that afternoon. Later that night, the applicant also spoke with his friend, Mr Grant Stephenson for a number of hours. He stated that he told Mr Stephenson what had happened with Mr Cooper and that he was very distressed.
The applicant gave evidence that in late November 2015 he went to the office of his GP, Dr Tran, but left before seeing him. He stated that he did not see Dr Tran until 14 December 2015.
During cross-examination the applicant confirmed that he sent an email to Ms Busato that day requesting annual leave on 30 November 2015, and on that same afternoon he had received notice from the Victorian Civil and Administrative Tribunal (“VCAT”) that there was to be a telephone directions hearing on 30 November 2015. He also confirmed that he travelled to Sydney on the night of 27 November 2015. He commented “stress doesn’t stop you from getting on a plane”, and stated that he was looking forward to getting away after the events of that day.
The applicant was asked about the days following 27 November 2015. He confirmed that he attended the VCAT directions hearing by phone on Monday 30 November 2015, went back to work for a couple of days, and then took annual leave to go to Adelaide on 4 December 2015. He confirmed that 4 December 2015 was the day Ms Busato called him to advise that Mr Cooper was being investigated in respect of the complaints he made, and had been suspended from duty. He also advised he believed that 30 November 2015 was the day he walked to the office of his GP, Dr Tran.
The applicant gave evidence that in the two weeks following 27 November 2015 his stress and anxiety levels “were building up”, he was having trouble sleeping and his concentration was quite low. He confirmed that during this time he no longer worked with Mr Cooper. He stated that Ms Busato approached him at the work Christmas lunch and asked if he was okay and why he was so quiet; his response was along the lines of, “You know what’s been going on”. With regard to the phone calls made from Ms Busato to the applicant, he advised that he had never previously received a call from Ms Busato to check on his wellbeing.
At the hearing the applicant spoke about the file notes he drafted regarding the incidents with Mr Cooper. He stated that the events of each incident were still fresh in his mind at the time of drafting each file note. He also commented that he had started drafting the file notes when the hostility from Mr Cooper had started to increase, and he believed it was appropriate to start making records of the incidents that had occurred.
Meeting on 14 December 2015 and termination of employment
The applicant gave evidence of his recollection of this meeting, stating that Ms Busato had referred to non-disclosure of “criminal proceedings as a member of the NSW Police”. The applicant stated that, following the meeting, he was “still very distressed and anxious from the previous incidents that had been building up and I was already feeling unwell”. He noted that he felt the same after the meeting as he had before the meeting.
When asked how he felt about answering the allegations, the applicant stated, “I was quite anxious, I had a lot of anxiety, I thought I needed… something to calm me down in order to focus on that task, obtain the information and prepare a response”. When asked if he felt confident he could prepare a response, the applicant agreed and stated, “Yes. The criminal proceeding resolved in my favour and I was very confident the allegation could be answered. However, there were some complex circumstances surrounding me that I needed to also address.” The applicant referred to the fact that his conviction for disclosing information as a police officer was overturned on appeal. He stated that he had denied the allegations from the outset.
The applicant also commented on the fact that he knew he had certain rights regarding his overturned conviction. He believed he was not required to disclose it to FWBC and it could not be taken into account regarding his employment. He stated, “I didn’t ever think that I was realistically facing termination because of that issue. I thought that was just a formality.”
During cross-examination the applicant confirmed that he called Mr Harrigan shortly after leaving work on 14 December 2015. He stated that he would have told Mr Harrigan that “I had made a public interest disclosure and within 14 days unexplained issues had arisen and my understanding is that would constitute a reprisal”. When asked whether he thought his employer was “out to get [him]” because he had complained about Mr Cooper, the applicant stated, “No, I just relayed to him that the timing, as I said to Pina Busato, the timing’s quite interesting or curious”. He could not recall whether Mr Harrigan asked if he had been to see the doctor yet.
The applicant also confirmed that he spoke with his fellow employee, Mr Fitzjohn, on 14 December 2015.
It was put to the applicant that when he had the meeting with Ms Busato he had already decided in his own mind that his complaint about Mr Cooper is what had led to the enquiry about his behaviour. The applicant noted that he had mentioned to Ms Busato that “this is quite interesting” or “convenient” as a passing observation. When pressed further about his state of mind at the time, the applicant stated, “I said to Pina ‘It's quite interesting’ so I did ask her during the meeting where this had come from. It was certainly something that I had enquired about - so I had turned my mind to that during the meeting, I was trying to seek an answer to where this had come from…”. The applicant again stated that he was not concerned about the meeting because he knew the answers would vindicate him.
During cross-examination the applicant was asked about the “lengthy” evidence he gave at the Federal Circuit Court about that meeting. He agreed that he gave evidence that during the meeting with Ms Busato he was spoken to about his past criminal proceedings; he also agreed that a different version of events were suggested and he rejected that. The applicant accepted that the Federal Circuit Court did not accept his evidence, and that Judge Vasta Baxter described his evidence as “blatantly dishonest”. The applicant noted that the matter was presently subject to a further appeal by him.
Compensation claim
The applicant stated that he nominated 27 November 2015 as the date of the injury in his compensation claim form as that was the date when he was profoundly distressed and went home early from work. He thought that was the appropriate date.
The applicant gave evidence that he did not seek medical treatment immediately after the meeting on 14 December 2015, but saw Dr Tran, later that afternoon. He stated that he told Dr Tran that he had been anxious and distressed about incidents with his supervisor, which amounted to “bullying and harassment” and which culminated on 27 November 2015 when his supervisor “abused [him] in front of [his] colleagues”. He told Dr Tran that since that time he had “a build-up of stress”. He did not discuss the events from earlier that morning with Dr Tran, because “they had no effect on me” and were not the cause of his stress.
During cross-examination the applicant advised that his appointment with Dr Tran on 14 December 2015 took place after he walked down to his office, as he had done previously. When asked if he had deliberately not told Dr Tran about the events of that morning, when he had been told that his employer would be making a decision on his continued employment the following morning, the applicant stated, “I didn’t tell him because it wasn’t causing any stress so there was no need”.
It was put to the applicant during cross-examination that that day (i.e. the day of the hearing) was the first time he had disclosed that he tried to seek medical treatment for his condition prior to 14 December 2015. The applicant responded to this by stating that he had previously instructed his lawyers to that effect, but he agreed that this information had never been put in writing to Comcare or their legal representatives. The following exchange then took place between the representative for Comcare and the applicant:
And you're aware of the significance of when someone seeks medical treatment for the purposes of a claim for compensation aren't you? --- I hadn't actually obtained any treatment, so, at that point.
Are you aware of the significance of seeking medical - the date that medical treatment is sought? --- Actually obtained medical treatment?
Yes? --- Yes, but I had not.
But what you are trying to say to the Tribunal is, "I felt so unwell after 27 November that I had to go - I felt I needed to see a doctor"? --- I was encouraged by Nick Harrigan to see a doctor and I did that but I did not ultimately consult the doctor on that day.
So whatever was wrong with you, you didn't feel it sufficiently distressing to make an appointment to see your doctor? --- Well I - yes, because that's why I walked up there.
Having not being able to get in, your state of distress is not sufficient that at any time between 30 November and 14 November did you feel the need to secure an appointment at Dr Tran's? --- Yes, because I went there on the 14th. I did go there. It was sufficiently serious that I went back on the 14th.
And it became sufficiently serious after you were told that your employer was considering terminating your employment? --- No, I was - as I said earlier, I was stressed prior to the meeting. The meeting had no effect.
No effect whatsoever? --- No.
You know you need to say that don't you, Mr Ritson? --- I'm telling you the facts as they are. I was not stressed - - -
Can you answer my question please? You know you need to say that that meeting and the subsequent determination had no effect on your psychological condition? --- I know I need to tell the truth and that's what I'm doing.
The applicant acknowledged that he was aware that if it was found that his adjustment disorder had been caused by the meeting on 14 December 2015 then he would not be entitled to compensation. He also accepted that an acknowledgement that the meeting had some effect on his condition could be detrimental to his claim.
The applicant confirmed that his condition had developed from 27 November 2015, notwithstanding that he continued to work after that date, travelled interstate, continued to participate in other legal proceedings and commenced other legal action against his former employer. He confirmed that he did not attempt to make an appointment with his psychiatrist, Dr Smith, until 15 December 2015.
The applicant gave evidence that since he had ceased work with FWBC, he continued to experience anxiety and difficulty sleeping. He stated that he had also been very depressed and had been put on medication. He had not been able to work and he continued to see his psychiatrist, Dr Smith.
Psychological history
The applicant gave evidence regarding his psychological status prior to starting with FWBC in July 2015, stating that he was “well” and “in good spirits”, having re-entered the workforce after experiencing difficulties with the NSW Police. He stated that he had moved on and things were working out well for him. He was not receiving treatment, counselling or medication for any psychological issues at that time.
The applicant gave evidence that he underwent a medical assessment when commencing employment with FWBC, and confirmed that the tendered ‘Medical Assessment’ document reflected answers provided by him.[42] He recalled being asked about whether he had ever had a psychiatric or nervous condition that required professional counselling and/or medication, and agreed that he answered yes to that question. He stated that he advised the examining doctor that he experienced issues a number of years ago, between around 2009-2012, and those issues were now resolved.
[42] Exhibit D, Medical assessment.
During cross-examination the applicant accepted that he has a history of psychological problems. He clarified that his problems occurred over a number of years, but were not related to a number of matters. He agreed that he first sought medical treatment for stress arising from his employment with NSW Police in November 2006, and he was under the care of psychiatrists, on medication and had been certified as unfit for work for a number of years.
The applicant has accepted that from 2006 to 2012 he was receiving medical treatment for the majority of that period. He also accepted that he visited a GP, Dr Kroman, in May 2013 and was diagnosed with anxiety and insomnia, as well as being certified unfit for work. The applicant explained that there was “an incident that caused me some concern at that time. It wasn't ongoing, it was a one off”. He was referred to his psychiatrist, Dr Smith, at that time, but he did not go. The applicant agreed that in total, he received treatment for psychiatric problems on and off for around 7 years.
Other matters
During cross-examination the applicant was asked about a number of other matters, including the code of conduct investigation into Mr Cooper, his history with Mr Cooper, his history with his friend Mr Stephenson, and other legal proceedings.
It was put to the applicant that the code of conduct investigator opined that his email to Mr Cooper on 26 November 2015 was possibly sent to incite a reaction from Mr Cooper, and the applicant’s response to this was: “absolute rubbish”. The applicant accepted that KM had told him of issues he’d experienced with Mr Cooper, and that he likely suggested that the applicant make file notes of his interactions with Mr Cooper. He accepted that the code of conduct investigator noted that he preferred Mr Cooper’s evidence to the applicant’s, and that Mr Cooper’s evidence was supported by other witnesses, but offered no further comment.
The applicant explained that the purpose of the file notes was because Mr Cooper “was making unfounded allegations and was becoming increasingly hostile to me and it became apparent that I should make file notes of these interactions to put forward if need be, if he did make allegations that were unfounded that I could produce a record of the interactions”. The applicant rejected the premise that the file notes were created because he was in some way concerned that his probation period or employment might be in jeopardy. He commented that he was not concerned about Mr Cooper writing a negative report or not supporting his continued employment because there were “objective accounts from other people who would provide a proper report”.
The applicant was asked about a particular file note record in which he noted that Mr Cooper had forgotten to secure his laptop, and was asked how that evidenced hostile behaviour. The applicant replied that, “I made a record because I was handling his issued government laptop and I made a record that I had secured it, and I notified him, and if he wanted to make some sort of allegation there was a record of that. I didn't know what he might do but I thought it was appropriate to record what occurred”.
The applicant was also asked about his file note which recorded that Mr Cooper had not responded to an email of his for 2 weeks. The applicant stated that it was similar to the other file note, that he made it in case Mr Cooper made further allegations that he had not performed his duties, and so “I had a record that I had taken steps to do my job and to notify him and that it was his failure to respond to me again”. The applicant agreed that his original email was in the system, so it was already on record.
The applicant denied that he was trying to get “dirt” on Mr Cooper. He was asked whether he felt the need to document Mr Cooper’s behaviour because he was worried that he might become unwell, and the applicant stated, “No, I already had felt unwell on occasions he had made allegations in October”. In light of his history of psychological problems, the applicant was asked whether, in October 2015, he felt the same as he did when he was unwell previously, or was worried that what was happening would lead to him feeling that same way. He stated that, “when I felt distressed in October it was not to the magnitude that I had previously experienced with my issues with the police. I knew that I was distressed because I had recovered and had been quite well and in good spirits for a number of years prior to that point”.
The applicant confirmed that he had commenced legal proceedings against Mr Cooper personally. The applicant explained that the proceedings related to a claim for battery, based on the punches Mr Cooper was alleged to have delivered to the applicant on 11 November 2015. The applicant advised that he was claiming “damages for being punched in the back in the workplace by my supervisor in the circumstances that occurred”, but was not claiming for economic loss, physical damage, or psychological damage. His claim particularised that his damage was for “the punching in the back, the discomfort that eventuated from that” and “the confusion”. The following exchange took place between the respondent’s representative and the applicant:
So you've really got it in for Mr Cooper, haven't you? --- I would like to vindicate myself and what occurred and being punched by a supervisor in the workplace is not appropriate and I am well within my rights to do that and I have - and I have done so. It was such a significant event but believe it warrants - - -
It was such a significant event that you wrote a file note about it two weeks later and put it in a list of other complaints you had against someone including that he forgot to lock up his laptop? That's it isn't it? --- What's the question? I don't understand?
You are just out to get Mr Cooper aren't you? --- Mr Cooper punched me in the back four times while I was standing at my desk - - -
Yes, you said that multiple times Mr Ritson. Would you agree with me yes or no - you are out to get Mr Cooper? --- No.
It was put to the applicant that “when you are unhappy with anything you sue people”. The applicant’s response was, “When I have a grievance I use legal and proper means of resolving any disputes I might have”.
The applicant agreed that at the time of his interactions with Mr Cooper, he had commenced proceedings in the Northern Territory Civil and Administrative Tribunal regarding a discrimination complaint against the Northern Territory Police, and was still going through legal proceedings with VCAT against Mr Ryan. He also acknowledged that on 30 October 2015 the NSW Commissioner of Police received a judgment debt order against him, which led to bankruptcy proceedings.
The applicant was also asked about his history with Mr Stephenson. He agreed that he used to work with Mr Stephenson and that he was nominated as a referee and immediate past supervisor when he applied to work at FWBC. He explained that he was a sole trader who was contracted with Mr Stephenson’s company, and he performed private investigations and commercial agent activities.
The applicant was then referred to a VCAT matter in which he filed an affidavit dated 14 January 2016. It was noted that the applicant named Mr Stephenson as one of the people who made a complaint about a Mr Ryan. The applicant commented, “Mr Stephenson made an inquiry of Mr Ryan, as I recall”. The applicant explained that Mr Stephenson sent an email to Mr Ryan, and Mr Ryan sent a response. The applicant stated:
“As I remember, Mr Ryan wrote back to Mr Stephenson saying, "Call me. I'm in my office." The issue was Mr Ryan's office had been vacated some years earlier, and the point of that email was Mr Ryan was making false and misleading representations about operating a business, and operating from a particular premises. From what I remember, that was the extent of the email, and the purpose of that email.”
The following exchange then took place between the respondent’s representative and the applicant:
To put it bluntly, you were getting your mate to try and set up someone you were suing? --- That's rubbish, and I reject that. I wasn't setting up anyone. Mr Ryan responded to an inquiry, and that is the extent of it. I've explained that.
During the hearing the applicant was also asked about previous claims for compensation. He agreed that in his claim for compensation relevant to this application, he disclosed that he had previously claimed compensation from the NSW Police, but not that he had claimed compensation from the Department of Veterans’ Affairs (“DVA”). The applicant explained that he lodged a claim for compensation with DVA, but it was rejected. He remarked that he understood the question on the Comcare claim form about previous compensation claims to be about whether he had actually received compensation.
The applicant explained that he had made a claim for compensation with the NSW Police, and that his claim to DVA was a claim for aggravation of that existing condition. He agreed that Dr Smith, his psychiatrist, provided reports for his compensation claim to DVA. It was put to the applicant that Dr Smith changed his opinion in those reports, to the effect that he first opined it was the NSW Police who caused the applicant’s condition and in his second report he stated that the Navy had aggravated his condition. The applicant stated:
“No, I recall there was a report that was - there was some sort of typographical or - if I may call it that - some sort of ambiguity and I recall he wrote to DVA to clarify. What you have said is that the issues with the police were the cause of my stress at the time and some matters from my Naval Reserve service were an aggravating factor and he'd wanted to clarify that and he did so”.
Witness evidence
Mr Ken Fitzjohn
Mr Fitzjohn provided a signed statement dated 20 April 2017 and was called as a witness by the applicant.[43] In his statement, Mr Fitzjohn outlined the events of 27 November 2015 from his perspective. He stated that on this day he was approached by the applicant while he was at a coffee shop near their work. The applicant appeared to be in a “distressed state”, and told Mr Fitzjohn that he was distressed because of his supervisor, Mr Cooper, “abusing and/or disciplining him in front of other staff” in an aggressive tone with a raised voice. The applicant recounted that he had advised Mr Cooper that he was going to “put in for flex time” as he had worked back late the previous night, and Mr Cooper responded in an “aggressive manner”. He noted, “During my conversation with [the applicant] on 27 November 2015 it appeared that he was experiencing significant psychological distress as a result of the events occurring on that day”.
[43] Exhibit C, at 3.12, statement of Ken Fitzjohn dated 20 April 2017.
Mr Fitzjohn stated that later that day, when he was back in the office, Mr Cooper asked the applicant to go into his office for a meeting. The applicant approached Mr Fitzjohn and asked him to be a support person, which Mr Fitzjohn was willing to do. He recalled Mr Cooper using words to the effect of “I’ll be taking this up with Pina”.
When giving evidence at the hearing, Mr Fitzjohn confirmed that in 2015 he used to work at the FWBC with the applicant, and he first met the applicant in July 2015. He noted that they worked in different teams, but worked in close proximity and sometimes had to work together, meaning that he saw the applicant daily. When asked about the applicant’s emotional appearance between July 2015 and 27 November 2015, Mr Fitzjohn commented that the applicant appeared “quite confident”. When asked how the applicant appeared after 27 November 2015, Mr Fitzjohn said that he could see something was worrying the applicant, “he just wasn’t himself” and was not as confident as he was prior to that date.
Mr Fitzjohn was asked to elaborate on his interaction with the applicant in the coffee shop on 27 November 2015. He stated that when the applicant approached him he could see that he was “quite upset”, was not himself and was “slightly emotional”. He stated that the applicant’s demeanour was “completely out of character”. Mr Fitzjohn recounted that there had been some “unpleasantries” exchanged between the applicant and Mr Cooper.
Under cross-examination Mr Fitzjohn was asked what he meant by “slightly emotional”. He stated that there was a “bit of a quivering”, and the applicant’s eyes were glassy. Mr Fitzjohn was asked why he outlined in his statement that the applicant had experienced “significant psychological distress”. Mr Fitzjohn explained that “you can tell when there’s a change in a person’s demeanour… he was physically upset”. He accepted that the phrase “significant psychological distress” may have been mentioned or suggested by the applicant’s representative when his statement was being taken.
Mr Fitzjohn also confirmed that the applicant had not disclosed a history of psychological problems during their conversation on 27 November 2015.
Mr Nicholas Harrigan
Mr Harrigan provided a statement dated 1 August 2016 in support of the applicant, and also gave evidence at the hearing.
Mr Harrigan’s statement outlined that he had a phone conversation with the applicant on 27 November 2015, during which the applicant advised that he was distressed as a result of events which had occurred at work that day.[44] The applicant’s distress was caused by “his supervisor abusing him in front of other staff”. Mr Harrigan noted, “During my conversation with [the applicant] on 27 November 2015 it appeared that he was experiencing significant psychological distress as a result of the events occurring on that day”. Mr Harrigan stated that he encouraged the applicant to report his supervisor’s behaviour and to go to his doctor.
[44] Exhibit C, at 3.10, statement of Nicholas Harrigan.
Mr Harrigan stated that earlier that month he had spoken with the applicant about issues he was experiencing with the same supervisor. These issues resulted from the applicant’s supervisor’s “intimidating contact”, and an incident where the supervisor “had struck him in the back”.
Mr Harrigan noted that he was aware the applicant’s employment had since been terminated, but he believed that the applicant was distressed prior to the commencement of that disciplinary process as a result of his supervisor’s conduct, particularly on 27 November 2015.
At the hearing, Mr Harrigan gave evidence that he had known the applicant since around 2005 when they worked in NSW Police together, and they had remained close friends since that time. He estimated that on average he and the applicant spoke on the phone at least once a week, and they occasionally catch up in person when the applicant visits NSW. He noted that he saw the applicant in person on 30 October 2015 when he, Mr Harrigan, got married.
Mr Harrigan described the applicant’s emotional state in the two years prior to November 2015 as “very level-headed” and “resilient”, stating that there was rarely a time when the applicant was concerned. When asked about his conversation with the applicant on 27 November 2015, Mr Harrigan stated that the applicant “called me quite upset”, and told him that his team leader had berated him in front of his work colleagues. He recalled the applicant was “bewildered”, as he did not know why this had happened. He described his tone of voice as “rapid” and his pitch as “very upset”, and noted that “it appeared that he was stressed and in shock”. Mr Harrigan stated that he had not known the applicant to previously describe feeling that way, and noted that his behaviour was out of character. Under cross-examination Mr Harrigan agreed that he was familiar with the applicant’s history of psychological difficulties while working for the NSW Police, but advised that he had never known the applicant to present in the state that he did on 27 November 2015. He explained that, when the applicant had previously been experiencing distress with the police matters, he did not speak with the applicant immediately after the issues occurred; conversely, the applicant called him on 27 November 2015 right after the incident happened, “so of course he was upset”.
Mr Harrigan gave evidence that he thought the best course of action for the applicant was to go and talk to his doctor about how he was feeling, and told the applicant as much. He stated that he understood the applicant did go to the doctor after they spoke. When asked under cross-examination whether he was aware the applicant didn’t see a doctor for 2 weeks after they spoke, Mr Harrigan clarified that he had not specified a date. Mr Harrigan could not recall whether he had followed up with the applicant to check if or when he visited the doctor.
During cross-examination Mr Harrigan was asked about his use of the phrase “significant psychological distress”. He expressly stated that his statement was a reflection of his own words and that specific phrase was not suggested to him.
Mr Harrigan was also asked about a phone conversation between himself and the applicant on 14 December 2015. He advised that he could not recall the contents of that conversation, and that date did not stand out to him.
Mr Graham Stephenson
Mr Stephenson provided a statement dated 4 August 2016, and gave evidence at the hearing. Mr Stephenson is based in the US, and gave evidence that he had known the applicant for about 10 years. He stated that he and the applicant speak regularly, at least a few times a week, when he’s based in the US. He also confirmed that he was located in the US in November 2015.
In his statement Mr Stephenson outlined that he was contacted by the applicant on the phone on 27 November 2015.[45] He stated that the applicant told him he was distressed as a result of events which had taken place at his job that day, involving abusive behaviour by his supervisor Mr Cooper. Mr Stephenson noted, “During my conversation with [the applicant] on 27 November 2015 it appeared that he was experiencing significant psychological distress as a result of the events occurring on that day”. Mr Stephenson stated that he was so concerned by the applicant’s distress that he spoke with him for a significant length of time, for approximately 3 hours between 2:00am and 5:00am US Pacific Time. He noted that it was unusual for him to engage in length phone calls at this time of night.
[45] Exhibit C, at 3.11, statement of Grant Stephenson.
At the hearing Mr Stephenson was asked about his impression of the applicant’s emotional state in the 2 years prior to November 2015. He stated that the applicant “had a spring back in his step and was moving forward”. When asked to compare this to their phone conversation on 27 November 2015, Mr Stephenson stated that the significance of that conversation was that it showed the applicant going back to a state he hadn’t been to in a while. He could not recall the specific words that the applicant used. He commented that he stayed on the phone for the length of time that he did because he was concerned for the applicant’s immediate wellbeing.
Mr Stephenson was also asked how the phone conversation between himself and the applicant on 27 November 2015 was initiated. He recalled that the applicant had sent him a text, and he had called the applicant back. During cross-examination Mr Stephenson noted that he assumed the applicant was in Brisbane when their phone conversation took place. He stated that he continued to have contact with the applicant in the weeks that followed that conversation, and noted that his advice to the applicant would have been for him to seek medical advice.
Under cross-examination Mr Stephenson was asked when he had previously been aware of the applicant experiencing similar stress, and he recalled 2008 or 2009. When questioned he advised that the applicant had previously worked for his company, Dynamic Corporate Services. Mr Stephenson was also asked about the preparation of his witness statement, and he agreed that, after he was contacted and asked a few questions, he was sent a draft to look at and sign.
STATEMENT OF AGREED FACTS
The parties have provided a document entitled “Statement of Agreed Facts”, which sets out the facts to which there is no dispute.[46] The respondent agrees that the applicant was working with the FWBC between 20 July 2015 and 16 December 2015, and for a period of time the applicant was under the supervision of Mr Cooper.
[46] Exhibit H.
The respondent agrees with the facts put forward by the applicant regarding the events on 13 October 2015 and 14 October 2015 up until the point at which the applicant entered the meeting room with Mr Cooper and Mr Hogan.
With respect to the events on 11 November 2015, the respondent agrees that:
·At about 11:00am the applicant was standing at his desk in the offices of the FWBC;
·Mr Cooper approached the applicant from behind and punched the applicant in the lower back four times in quick succession;
·Mr Cooper’s punches were not overly forceful, but they did push the applicant into the desk in front of him;
·The applicant had not previously engaged in any type of horseplay with Mr Cooper and he was surprised by Mr Cooper’s conduct.
With respect to the events on 20 and 23 November 2015, the respondent only agrees that on 20 November 2015 Mr Cooper directed the applicant to accompany him to the Southport site.
With respect to the events on 27 November 2015, the respondent agrees that:
·At 3:30pm on 25 November 2015 the applicant received an email from Mr Cooper which made enquiries about the circumstances surrounding the applicant’s arrival at work on 24 November 2015;
·At about 11:45am on 26 November 2015 the applicant spoke with Mr Cooper about his email of 25 November 2015. He advised Mr Cooper that he had arrived at work at about 7:45am the previous day;
·At 2:50pm on 26 November 2015 the applicant received an email from Mr Cooper requesting that he respond to Mr Cooper’s email of 25 November 2015 before he left work for the day;
·At 4:31pm on 26 November 2015 the applicant sent an email to Mr Cooper noting that his scheduled finish time was 4:30pm and requesting approval for an hour of flex time to enable him to respond to Mr Cooper’s email before he left work;
·At about 8:50am on 27 November 2015 the applicant was standing at his desk speaking to Rob Thorney. Mr Cooper was standing at his desk facing the applicant.
·The applicant contends that:
a) While the applicant was speaking to Mr Thorney, Mr Cooper asked the applicant, “Are you joking?”;
b) The applicant turned to face Mr Cooper. Mr Cooper repeated, “Are you joking?”;
c) The applicant said, “I beg your pardon Kevin”;
d) Mr Cooper responded, “Is this a joke? You’re asking me to approve an hour of flex to send an email. You’re kidding yourself.”;
e) Three other FWBC staff members were standing within hearing distance during the exchange between Mr Cooper and the applicant;
f) The applicant walked towards Ms Busato’s office, and as he did Mr Cooper said, “You’re kidding yourself if you think I’m going to approve that. I’m denying your request.”;
g) The applicant responded to Mr Cooper, “Kevin, I don’t appreciate being spoken to in a belligerent tone of voice in front of other staff”.
With respect to the events of 14 December 2015, the respondent agrees that:
·On the morning of 14 December 2015 the applicant was directed to attend a meeting with Catherine Higgins, Acting Team Leader, and Ms Busato;
·During that meeting Ms Busato alleged that the applicant had not disclosed all relevant information when applying for the role with FWBC and indicated that FWBC was considering terminating the applicant’s employment;
·Following the meeting, the applicant left the offices of FWBC to prepare a response to the allegations conveyed to him verbally during the meeting.
The respondent seeks to rely on several alternative versions of events as put forward by various witnesses, including Mr Cooper, Ms Busato and Mr Bernard O’Keeffe.
THE RESPONDENT’S EVIDENCE
Witness evidence
Mr Kevin Cooper
Mr Cooper provided a statement dated 9 December 2015, which was given as part of the code of conduct investigation.[47] Mr Cooper did not give evidence at the hearing, and the respondent contended that he was unable to appear given that he was presently the subject of civil litigation commenced by the applicant against him.
[47] Exhibit A, T-Documents, T16.2.
In his statement Mr Cooper identified that, at that time, he was employed as a Team Leader at FWBC. He stated that he had previously gone through counselling at FWBC, in relation to the underperformance of an investigator, KM. He had spoken with Ms Busato about those issues and KM was put onto underperformance management. Mr Cooper noted that KM was already on a performance management plan prior to his commencement at FWBC in October 2014.
Mr Cooper spoke about matters for which he personally received counselling at FWBC. The first instance related to several FWBC staff members, including KM, going to a site and being initially refused entry. When the staff members returned to the office, Mr Cooper spoke to them in a closed room outside the main FWBC office. He stated, “Apparently my voice travelled when I spoke to them during that meeting” and “I was pretty upset about the matter”. Mr Cooper noted that several comments he made in the meeting were directed at another organisation, not to anyone in the meeting, and he made that clear. He stated that he later took the initiative to address each of the individual FWBC staff members personally, outside of the office.
After that meeting Ms Busato spoke to Mr Cooper about the level of his voice. He was made to apologise to staff in an all-staff meeting later in the week. Mr Cooper noted that he “did not agree with that approach”, but in the meeting he acknowledged that he had raised his voice during the meeting and he should not have done that.
The second incident for which Mr Cooper was counselled took place when he was acting in Ms Busato’s role as State Director, around May or June 2015. He had a conversation with KM, which did not relate to “anything in particular or anything sensitive”. Someone outside the office heard Mr Cooper and believed he was raising his voice. That person called MG (General Manager East Region), and told him that Mr Cooper was raising his voice and arguing with someone. MG called Mr Cooper, and Mr Cooper explained that “I just talk loudly, but I was certainly not having an argument with anyone”. Mr Cooper impressed upon MG that he was not aggressive, and people misinterpret his voice and mannerisms.
On 26 August 2015 Mr Cooper had his first counselling session with Mr Nigel Hadgkiss, the Director of FWBC. In his statement Mr Cooper noted that Mr Hadgkiss primarily spoke positively about him, but also spoke about his behaviour and the perceptions people in the office had that he was aggressive at times. Mr Cooper noted that he told Mr Hadgkiss that “the people who were saying that about me, had other motives”. He advised Mr Hadgkiss that there were performance and behavioural issues in the office that needed to be addressed, and he had addressed them.
Mr Cooper stated that in their meeting, Mr Hadgkiss said, “I have a question for you in which there is only one answer. And it’s a yes or no answer… Will you go to EAP to seek help for your anger management?”. Mr Cooper noted that, after hesitating, he reluctantly agreed.
On 8 September 2015 Mr Cooper spoke with MG, and in the course of that conversation they spoke about the reference to Mr Cooper being aggressive. MG said, “it’s a perception”. He agreed that Mr Cooper was not aggressive, but people had that perception. In his statement Mr Cooper commented, “I make no apologies for being upfront and honest”.
The respondent referred to comments of Dr Macleod made in his 6 July 2017 report regarding the 14 December 2015 meeting. Dr Macleod speculated that the applicant orchestrated his 14 December 2015 medical attendance not only to receive medical assistance, but also to gain medical support for his intended legal challenge.
Reasonable administrative action
If it is accepted that the applicant suffers from an ailment or aggravation of an ailment that is a “disease” for the purposes of the Act, then the respondent contends that any disease was suffered as a result of reasonable administrative action taken in a reasonable manner with respect to the applicant’s employment (i.e. the 14 December 2015 meeting). The respondent notes that if the Tribunal is satisfied that the applicant’s condition developed as a result of one or more reasonable administrative actions, the condition will be excluded from the definition of “injury” and therefore the claim will be excluded under the Act.[114]
[114] Comcare v Martin (2016) 339 ALR 1
The respondent submits that if the meeting on 14 December 2015 did not occur, then the applicant’s employment would not have contributed to his ailment, or any aggravation of that ailment, to a significant degree for the purposes of s 5A(1) of the Act. They consider that this is supported by the fact that the applicant first sought medical treatment on the date of the meeting, and not at any time prior.
The respondent submits that the issue of whether the meeting constitutes reasonable administrative action should be broadly determined in accordance with Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42:
“Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration action was taken in a reasonable manner by the employer…
…whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.”
The respondent submits that the evidence supports a finding that the meeting, the proposal to terminate the applicant’s employment, and the decision to terminate the applicant’s employment, were reasonable administrative actions taken in a reasonable manner with respect to the applicant’s employment. They note that the applicant was clearly dishonest in the nomination form completed at the commencement of his employment, which in itself is sufficient to justify the termination of his employment. The respondent also considers that the manner in which Ms Busato conducted the meeting, and in which she informed the applicant about the proposal to terminate his employment, were taken in a reasonable manner.
Decision sought
The respondent seeks that the decision under review be affirmed, on the basis that the applicant’s adjustment disorder developed as a result of reasonable administrative action and as such the exclusionary provision in s 5A(1) of the Act applies. The respondent submits that as the applicant cannot be found to have suffered an injury for the purposes of s 14 of the Act, no liability attaches to the respondent to provide compensation.
APPLICANT’S SUBMISSIONS IN REPLY
The applicant’s written submissions in reply responded to a number of contentions put forward in the respondent’s written submissions.
The applicant referred again to the issue of Mr Cooper not being called to give evidence, and noted that while he does not necessarily agree that the respondent advised the Tribunal that Mr Cooper was not giving evidence due to being subject to personal litigation by the applicant, if that is accepted then he considers that:
·This reason does not satisfactorily explain Mr Cooper’s absence, as there was no explanation of why being the subject of personal litigation is a satisfactory or understandable basis for him declining to give evidence;
·It was not for the applicant to call a potentially adverse witness to give evidence in his case; if the respondent intended to rely on the evidence of Mr Cooper it was up to them to call him as a witness; and
·The applicant gave evidence in person and had his evidence tested under cross-examination. The same did not happen for Mr Cooper, so to the extent that the applicant’s evidence differs from the evidence of Mr Cooper it would be “quite unsafe” to prefer Mr Cooper’s version.
The applicant submitted that any other litigation he has been involved in is irrelevant to this matter, including remarks made by Judge Vasta in the Federal Circuit Court proceedings. He notes that the Tribunal is required to decide this case on the evidence before it, not on the basis of what another judge said about the applicant in another case; which is particularly important given that the factual matters which led to Judge Vasta’s findings were not specifically put to the applicant during cross-examination.
The applicant referred to Dr Smith’s evidence where he agreed that if a hypothetical person genuinely believed they were able to answer allegations levelled against them, such that they would not lose their job, then they may not feel particularly distressed. The applicant submitted that he believed he could satisfactorily answer the allegation of non-disclosure that had been made against him, so the meeting “did not significantly affect him”.
The applicant submitted that no weight should be afforded to Dr Macleod’s remarks made in his 6 July 2017 report, referred to by the respondent, in light of the fact that he accepted these remarks were merely speculative.
The applicant submitted that the fact that he had not sought medical treatment prior to 14 December 2015 and continued working until that date were not considered to be relevant factors by Drs Smith and Macleod. He highlighted that in Dr Macleod’s latest report of 6 July 2017 he concluded that the applicant was suffering from a psychiatric condition as a result of events that occurred prior to 14 December 2015.
The applicant considers that the following submissions of the respondent are not supported by the medical specialists:
·Prior to 14 December 2015 the applicant was not in a condition that was “outside the boundaries of normal mental functioning and behaviour”;
·The applicant’s interactions with Mr Cooper did not lead to the development of an adjustment disorder; and
·If the meeting did not occur then the applicant’s employment would not have contributed to his condition.
The applicant disputes that he attended on his GP “immediately after” the 14 December 2015 meeting, and instead submits that he attended his office later that afternoon. In any case, the applicant considers that the fact that he attended his GP on the same day as the meeting is not sufficient to give rise to a finding that a causal connection exists between the meeting and the development of his condition, because neither medical specialist accepted that there was a causal link between the meeting and the applicant’s condition.
The applicant submits that the respondent’s submissions are based on the fact that the applicant is an unreliable witness, and because of that the foundation upon which Dr Smith and Dr Macleod formed their conclusions on causation is unsustainable; however, the applicant claims that, despite his credibility being “vigorously challenged” by the respondent during cross-examination, the respondent has not pointed to anything of substance which arose in the proceedings that could lead the Tribunal to conclude that the applicant’s evidence was unreliable. The applicant submits that the foundation giving rise to the doctors’ causation findings is also supported by:
·The applicant’s file notes;
·The evidence of Mr Fitzjohn, Mr Harrigan and Mr Stephenson, who confirmed the applicant’s distress on 27 November 2015;
·The evidence of Ms Busato, who stated that the applicant was calm and composed during the 14 December 2015 meeting;
·The fact that the applicant’s belief that he would be able to satisfactorily answer allegations was “entirely rational”; and
·The contemporaneous medical records of Dr Tran on 14 December 2015 make no mention of the meeting, but record stress and anxiety relating to Mr Cooper’s actions.
CONSIDERATION
Ailment of the applicant
Recently, in Hennessey-Milne and Comcare [2018] AATA 4453 at [186], Deputy President Sosso remarked: “One of the features of workers’ compensation claims involving mental ailments is the multitude of “labels” that are ascribed to those ailments by various medical professionals”. This is one such case where the applicant has been diagnosed by medical specialists with different psychiatric conditions.
The respondent submits that the applicant suffers from a psychiatric condition which has been identified by Dr Smith as being an adjustment disorder. Dr Macleod, who was commissioned by the respondent, has differed in his diagnosis by having the opinion that the applicant has major depression with agitation and anxiety. Dr Macleod in his report of 15 August 2016 has explained that subsequent to the assessment of an adjustment disorder by Dr Smith on 6 January 2016, the adjustment disorder of the applicant had evolved into a major depressive episode. In his report, Dr Macleod explained that it is not uncommon for adjustment disorders to progress to major depression. Dr Smith, in giving evidence, has adopted the diagnosis of Dr Macleod: he remarked: “I think Dr Macleod was probably correct. He regarded him as suffering from a major depressive disorder, which is, if you will, a step down further on the scale of an adjustment disorder with depressed mood”.
I rely upon the report of Dr Macleod to find that when the applicant was examined by Dr Macleod in January 2016 he was suffering from an ailment being a major depressive disorder with features of agitation and anxiety.
Whether the ailment was contributed to in a significant degree by the applicant’s employment
I have to determine whether the ailment of the applicant being the mental health condition of the applicant was contributed to in a significant degree by the applicant’s employment.
There is certainly evidence that the condition of the applicant was contributed to by the applicant’s employment: however, there is a dispute as to when this had occurred. Dr Macleod was asked by the respondent to give his opinion in relation to whether it was more likely than not that the workplace events on 14 December 2015 contributed to the development of the applicant’s psychiatric condition. On 15 August 2016 Dr Macleod reported that it was more likely that the workplace events of November 2015 had contributed to the development of the applicant’s psychiatric condition. In this report Dr Macleod provided cogent reasons for this conclusion. He also referred to the fact that following the events at work in November 2015, and that over a few days, there had subsequently evolved the symptoms that he described in the “Current/Presenting Complaints” section of his report of 2 February 2016. In his report, as well as when giving evidence, Dr Macleod had regard to a work-related period of mental instability in 2009 which may indicate that the applicant has a vulnerability to workplace stressors.
Dr Macleod was called as a witness by the respondent in accordance with a request from the applicant. It has, however, long been the case that a medical witness that gives evidence before this Tribunal would not be treated as the witness of the party that calls that witness. A previous General Practice Direction provided that where a party calls a medical witness “the medical witness will not become the party’s witness”.[115] The fact that this provision is not in the current General Practice Direction would not in my view restrict any examination of a medical witness by the respondent. The respondent quite properly has not challenged the conclusion of Dr Macleod that it was more likely that the workplace events of November 2015 had contributed to the development of the applicant’s psychiatric condition.
[115] General Practice Direction, cl. 3 (26 March 2007) cited in Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis Butterworths, 2nd ed, 2007) p. 367.
The respondent has acted properly in tendering the statement of Mr Cooper dated 9 December 2015 in evidence as this is certainly a material document. However, it is difficult to place much weight on the statement of Mr Cooper as he was under investigation and his account is not that of a disinterested party. The account of Mr Cooper was not able to be tested irrespective of why he was not called as a witness. Mr Cooper, however, accepted that he “could” have punched the applicant although he referred to the incident as horseplay. Certainly, the applicant’s account of being punched was not challenged and I accept that Mr Cooper did punch the applicant at the workplace on 11 November 2015. The other FWBC employees who were present were not called as witnesses. This event preceded the events of 23 November and 27 November 2015 and it is not unreasonable to conclude that on those dates the applicant was mindful of being punched by Mr Cooper. There is evidence that the applicant was distressed at the workplace in November 2015 and there is unchallenged medical evidence that the events in that month were the cause of his mental state.
Accordingly, I find that the contribution to the condition of the applicant caused by the workplace events of November 2015 is substantially more than material in terms of s 5B(3) of the Act. I make this finding because there is no evidence of any other cause of the condition of the applicant. I have also had regard to the evidence of Ms Busato who stated that the applicant was visibly upset on 27 November 2015 and she gave the applicant permission to go home at 2:00pm on that day. In her statement Ms Busato stated that she was concerned about the “wellbeing” of the applicant and confirmed that on the next work day she had left a message with the applicant to see how he was. I have also had regard to the unchallenged evidence of three other witnesses who have given evidence that they spoke to the applicant after the event on 27 November 2015 and they all confirmed that the applicant was distressed on that day, those witnesses are Mr Fitzjohn, Mr Harrigan and Mr Stephenson.
The respondent has asked the Tribunal to not accept the claim by the applicant that he had attempted to see Dr Tran shortly after 27 November 2015. The applicant stated that he had then attempted to see his doctor but was not able to obtain an appointment. This account of the applicant is certainly plausible because Ms Busato gave evidence that the applicant was then distressed. Certainly, I accept that it would be difficult to see a suburban doctor without an appointment.
The respondent quite properly no longer contends that the applicant suffered a pre-existing psychiatric condition at the time of the commencement of his employment with FWBC.
I accordingly find that the ailment of the applicant being a major depressive disorder was contributed to a significant degree by the applicant’s employment on 27 November 2015. I also find that the ailment is a “disease” as defined by s 5B of the Act and thus an “injury” as defined by s 5A of the Act.
Whether the meeting of 14 December 2015 contributed or aggravated the ailment
I next have to consider whether there was a disease, injury or aggravation suffered as a result of the meeting of 14 December 2015 in terms of s 5A(1) of the Act.
The evidence of the applicant is that the meeting on 14 December 2015 did not adversely affect his psychological status. The applicant stated that he was not concerned about the meeting because he was not obliged to disclose a criminal conviction which had been quashed on appeal. I have considered whether the meeting on 14 December 2015 did adversely affect his psychological status. It is clear that the applicant proceeded to obtain medical assistance after this meeting on 14 December 2015. The notes of the treating doctor do not however refer to that meeting but to the earlier events in November 2015. There is no contemporaneous medical documentary evidence that the meeting on 14 December 2015 was significant.
At the medical consultation on 14 December 2015 the applicant was given a script for medication[116] as well as a referral to a specialist psychiatrist. The respondent has submitted that should liability arise under s 14 of the Act, then pursuant to s 7(4) of the Act the date of injury will be 14 December 2015. I accept this submission by the respondent and accordingly find, for the purposes of s 7(4) of the AAT Act, that the applicant first sought medical treatment for the disease on 14 December 2015.
[116] Exhibit C, Report of Dr Tran dated 18 December 2015.
During the hearing Dr Smith was asked questions in the abstract about the effect that news of a potential loss of employment would have upon a person. However, there is evidence that before the meeting on 14 December 2015 the applicant already had a mental health condition that was caused by the workplace events of November 2015. Dr Macleod, in his report of 15 August 2016, expressed the opinion that “it is more likely that the workplace events in November 2015, rather than on 14 December, that contributed to the development of Mr Ritson’s condition”. Dr Macleod expressed this opinion after he was made aware that the applicant had not sought medical treatment before to 14 December 2015.
The High Court of Australia in Comcare v Martin has confirmed at [45], that for the exclusionary provisions to operate the taking of the administrative action must be an event “without which the employee’s ailment or aggravation would not have been a disease; it would not have been contributed to, to a significant degree, by the employee’s employment”. The exclusionary provisions in s 5A(1) of the Act do not operate because there is no cogent evidence that the meeting on 14 December 2015 was, in terms of the remarks of the High Court in Martin, an event “without which the employee’s ailment or aggravation would not have been a disease”. There is cogent specialist medical evidence that the mental health condition of the applicant that was caused by the workplace events in November 2015 was certainly in existence before the meeting on 14 December 2015.
There is no specialist medical evidence or other evidence in my opinion that would support a finding that the mental health condition of the applicant was suffered “as a result of” (in terms of s 5A(1) of the Act) the meeting on 14 December 2015. I have carefully reviewed the oral and documentary evidence before me and do not consider that I can, on the state of the evidence, make an inference to the contrary. It would not be appropriate to make such an inference having regard to the evidence of Ms Busato who confirmed when she gave evidence before the Federal Circuit Court of Australia that on 14 December 2015 that the applicant was “very calm, very composed” during that meeting. I conclude that the exclusionary provisions in s 5A(1) of the Act do not apply. It is unnecessary to consider whether the meeting on 14 December 2015 was “reasonable administrative action” taken in a reasonable manner.
Other considerations
The respondent submits that the applicant was dishonest in completing the employment nomination form. However the workplace events in November 2015 were not concerned with the completion of the nomination form.
There has been no reason advanced as to why the applicant should not be awarded costs which have been sought.
I have had regard to the applicant’s request for a confidentiality order to prohibit the publication of the applicant’s name. Ordinarily a request for such an order is made before the hearing and s 35(5) of the AAT Act provides that it is desirable that evidence before the Tribunal be made available to the public. I consider that there are no reasons which warrant the granting of a confidentiality order.
DECISION
In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the reviewable decision is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Act for the condition of major depressive disorder.
For the purposes of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 14 December 2015 being the date when the applicant first sought medical treatment for the disease.
The respondent is liable to pay the applicant’s legal costs incurred in the proceedings of an amount agreed between the parties, and failing agreement between the parties, the respondent is liable to pay costs in an amount as taxed by the Registrar or an officer of the Tribunal pursuant to s 67 of the Act.
I certify that the preceding 340 (three hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.............................[SGD]..............................
Associate
Dated: 15 February 2019
Dates of hearing:
Date final submissions received:
31 July 2017, 1 August 2017, 2 August 2017, 3 August 2017 and 7 February 2018
28 March 2018
Counsel for the Applicant:
Solicitors for the Applicant:
Counsel for the Respondent:
Solicitors for the Respondent:
Mr Matthew Forbes
Hall Payne Lawyers
Mr Ben Dube
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Procedural Fairness
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Appeal
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Remedies
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