Robert Winchester and Comcare
[2014] AATA 15
[2014] AATA 15
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1830
Re
Robert Winchester
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 15 January 2014 Place Canberra The decision under review is affirmed
...................[sgd]......................
RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employee – psychiatric injury – whether condition is an ailment – whether contributed to by employment to a significant degree – whether not compensable because due to reasonable administrative action conducted in a reasonable manner.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 4(1), 5A(1)-(2), 5B(3) and 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Martinez [2013] FCA 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Falconer v Pedersen [1974] VR 185
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Re Findlay and Comcare [2013] AATA 324
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
SECONDARY MATERIALS
DC Pearce Statutory Interpretation in Australia (6th edn, 2006)
REASONS FOR DECISION
RM Creyke, Senior Member
15 January 2014
Mr Robert Winchester, born 1952, applied to Comcare to accept liability for a psychiatric injury which he claimed was employment-related.
That application was refused on 25 January 2012, a decision upheld on review on 12 April 2012. Mr Winchester sought further review by the Tribunal on 1 May 2012. The Tribunal is satisfied it has jurisdiction in this matter.
The hearing by the Tribunal was held in Canberra on 18-20 November 2013.
Background
The following facts are agreed by both parties. Mr Winchester first worked as a trades’ assistant with ActewAGL from 7 April 1975. During this employment he did four years of ‘on the job’ training to qualify as an underground electrical cable jointer, whereupon he was re-classified as a Grade A Cable Jointer.
In the early 1980s, Mr Winchester completed two years of a TAFE course towards an Associate Diploma in Electrical Engineering, while working full-time as a jointer.
In or around 1995, Mr Winchester commenced a three year apprenticeship with ActewAGL for a position of overhead linesman. He completed the apprenticeship in two years because of his past experience and qualifications.
In 2001, Mr Winchester received the ActewAGL award for Overhead Linesman of the Year and was promoted to Leading Hand Overhead Linesman. In 2001 he was temporarily promoted to Overhead Line Maintenance Manager, a position he filled for nine months.
In 2004 he was promoted to be Team Coordinator in Construction, responsible for scoping, planning for and supervising a team of up to nine people. In addition, as increasing numbers of large construction projects with combined teams were undertaken by ActewAGL, Mr Winchester’s evidence was that he was consistently required to scope, plan for and supervise twenty or more persons.
By 2008 Mr Winchester’s own team consisted of thirteen people, a reduction because of the loss of human resources support. In addition, some of that team were required to resource a power pole replacement program so the numbers in his team were further reduced.
Mr Winchester’s workload was defined in terms of projects, for each of which there was a ‘work pack’. Mr Winchester was expected to complete a number of work packs weekly. Summons material indicates there was an increase in the number of work packs between 2006 and 2008. Figures provided by the applicant showed the number for 2006 was 763, for 2007, 778, and for 2008, 910.
Mr Winchester’s completion rate of his work packs did not meet his targets and in September 2008, Mr Winchester was put on notice by his supervisor that unless he completed more work packs over the next fortnight, he could be subject to disciplinary review.
From early 2008, Mr Winchester was working a nine day fortnight commencing work at 7.30am and finishing at 4.00pm. However, he said he regularly took work home or stayed late at work to finalise matters, or prepare for upcoming tasks.
On 10 February 2009, a grievance against Mr Winchester was submitted by an employee. The grievance related to a number of matters including, as summarised in the Grievance Report:
·Outage went ahead late, insufficient time to complete;
·No onsite conference or risk assessment;
·Men were expected to work back;
·Confusion about whether an access permit existed;
·Meal not provided by Team Coordinator. Personnel told not to stop work; and
·Plant operators for earth removal not notified job was running late.
In summary the findings in the Grievance Report dated 11 March 2009, conducted by Mr Winchester’s supervisor in response to the complaint, were:
·The job referred to in the first complaint had been planned well, however, due to issues outside the control of the Team Coordinator the job did start late.
·The bulk of the allegations raised within the grievance report are unfounded.
·The Team Coordinator did fail to communicate effectively with the personnel onsite, which did contribute to the frustration between the Team Coordinator and personnel.
The outcome on this issue was counselling of Mr Winchester. specifically:
Effective management of changing situations, including the need to effectively communicate with personnel, ensure resources are available or back-up resources are coordinated, on-going communication with personnel regarding plan for completion of work; breaks and resources.
In early April 2009 a dispute arose between two work teams supervised by Mr Winchester and Mr Winchester could not be contacted. One of the team leaders phoned Mr Winchester’s supervisor who arrived on site some 30 minutes later. The supervisor called Mr Winchester and directed him to attend the site immediately. When Mr Winchester arrived between fifteen and twenty minutes later, an altercation arose between Mr Winchester and his supervisor in front of other staff, and then Mr Winchester broke down. The supervisor said at that point he moved the pair behind a vehicle onsite. Mr Winchester then calmed down.
Mr Winchester said his intention on 6 April 2009 following these events was to resign immediately. However, a colleague encouraged him to see the branch manager who dissuaded him from doing so.
Mr Winchester was off work for three months from 7 April 2009, returning on a graduated return to work program in a different area of work. Initially he worked for only half a day per week, commencing July 2009. By late 2010 he had been working for three days a week, but was not able to increase his working hours.
Mr Winchester has been taking anti-depressant medication since 2010. Initially he was reluctant to go on an anti-depressant. Mr Winchester had eight or more sessions with a private psychologist, and some six sessions with an Employee Assistance counsellor in 2010. He has also been seeing a counsellor from his church since 2009, and this continues on a regular and frequent basis.
Medical evidence
Dr Shroot
Mr Winchester attended his general practitioner, Dr Alan Shroot, on 7 April 2009 who certified him unfit for work. Dr Shroot had been Mr Winchester’s treating practitioner since 2006. Dr Shroot provided a report dated 24 November 2011 saying that Mr Winchester had reported he was having major problems at work after a grievance complaint was made against him but that most of the grievances were found to be incorrect and Mr Winchester was having counselling at work. Dr Shroot had diagnosed work related stress and noted that he had not previously treated Mr Winchester for depression, but said he ‘has certainly been depressed’. He noted that in November 2011 Mr Winchester remained on anti-depressant medication. Dr Shroot said Mr Winchester had tried to cease anti-depressants in August 2010 but had to resume taking the medication.
Dr Shroot said that, not having previously treated Mr Winchester for depression, ‘it is difficult to know whether the particular incidents at work are an aggravation of a previously existing condition, or whether this is purely post-traumatic stress as a result of what is happening at work’. He acknowledged that someone like Mr Winchester who has previously suffered from depression ‘would have been more susceptible to break down’. Dr Shroot said the main stressors were work-related, but ‘there have been further stresses in his personal life and these are probably a further consequence of the various stresses at work’.
In a Medical Practitioner’s Statement completed on 23 June 2010, Dr Shroot noted a diagnosis of ‘depression and post traumatic stress as a result of work… brought on (aggravated) by work incident’. He also noted that Mr Winchester ‘has had depression on and off for long time’.
Ms Todoroska
Ms Zora Todoroska, psychologist, first saw Mr Winchester on 12 February 2010, on referral from Dr Shroot, and last saw him on 11 May 2010. She diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. In her opinion the condition was induced by stress at work and was not an aggravation of a pre-existing or underlying condition. She noted in her report that, by Mr Winchester’s own admission, his personality was perfectionist, he was judgmental of himself, a list maker and keeper, schedule oriented and a hard worker. In her opinion such a personality type may tend towards depressive moods, gets caught up in details and is challenged by unplanned change.
Stressors she identified were:
· helplessness when in charge of particular jobs, and feeling it was his fault;
· pressures at work;
· stress in the workplace over some period;
· perceived lack of support from management to reduce his stress, or provide him with additional resources;
· the grievance complaint; and
· stress at work affecting his relationship with his wife.
Dr Zsadanyi
Dr Zoltan Zsadanyi, consultant psychiatrist, prepared a report for ActewAGL dated 20 December 2011. The report was a Fitness for Work assessment. Dr Zsadanyi diagnosed a chronic Major Depressive Disorder, in partial remission, and that Mr Winchester had a family history of depression. Dr Zsadanyi considered Mr Winchester probably had a pre-existing history of depression and was being treated with anti-depressant medication. In his opinion, stressful workplace factors contributed to a significant decompensation in his mental state, including ‘some interpersonal difficulties with his manager’.
Dr Zsadanyi provided a supplementary report on 10 October 2013. He confirmed his original diagnosis of chronic Major Depressive Disorder, a condition he said was outside the boundaries of normal mental functioning. He said he was not in a position to comment on whether any of the actions specified in the briefing letter from Comcare led to a recurrence of his depressive symptoms.
Dr Knox
Dr William Knox, consultant psychiatrist, provided a report for Mr Winchester, dated 30 July 2012. He diagnosed a Major Depressive Disorder in partial remission, and said the condition was due to ‘circumstances in his workplace, particularly in 2009’. As he said the history given to him ‘strongly links Mr Winchester’s [condition] to the stressful workplace and the unsupportive behaviour of certain ActewAGL staff’. In his opinion Mr Winchester’s condition had led to ‘a chronic state of poor mental health’ and his workplace ‘is the chief causative agent for the breakdown in his mental health’. In his view, at the time of his consultation, Mr Winchester was unfit for work due to his moderately severe depressive condition.
Dr Lark
Dr Andrew Lark, occupational health specialist, provided an occupational medical assessment report dated 27 February 2012 in relation to an application by Mr Winchester for a partial invalidity pension. He diagnosed depression and post-traumatic stress, and said his conditions were moderately severe. Dr Lark considered Mr Winchester could continue working on a part-time basis in the short term; longer term was harder to predict. He considered it was unlikely Mr Winchester could increase his working hours. In Dr Lark’s opinion, it was his medical condition which meant Mr Winchester could not work full-time.
Evidence of Mr Winchester
Mr Winchester maintains that data provided in a spreadsheet by ActewAGL showed that there was ‘(a) a pattern of an increase in my work load, and (b) the amount of paid overtime hours’. He referred as an example to the increased number of work packs completed between 2006 and 2008.
In the view of Mr Winchester the raw data did not ‘provide sufficient information to allow someone to have an appreciation of the amount of work, or the complexity of that work allocated to me and my teams’, particularly the problems and solutions needed for each project, the assistance provided to other team coordinators, the planning and programming time for each project, or the associated unpaid overtime spent solving problems, writing up resource and outage requests, advising customers, project managers and subcontractors, and in the checking required for closure of each project.
Mr Winchester gave evidence that during the 37 years he had worked for ActewAGL he had acquired a number of different technical skills, and had participated in several different areas of the work, both above and below ground, for ActewAGL projects. In addition he was rostered on for after-hours emergency call-outs once in every five weeks and answered emergency phone calls at other times. As a consequence he was often called upon to provide both practical and theoretical advice and assistance to others. He was notably generous with his time and advice.
Work pack finalisations
In September Mr Winchester said he had requested help from his supervisor to close completed jobs that had mounted up, in particular due to under resourcing. In his view depending on whether team leaders had completed the field completion reports properly, and on the complexity of the project, it took between one to 5 hours to complete the finalisation report. During September 2008, Mr Winchester’s supervisor spoken to the team coordinators at their weekly meetings about the need to complete their outstanding finalisations. Mr Winchester supervisor also arranged a one-on-one meeting on 30 September 2008 with Mr Winchester to discuss the outstanding finalisations, as he was still lagging behind.
The evidence was that on 30 September 2008, when his supervisor said that if his outstanding finalisations had not been completed within the next fortnight the failure to complete could become a performance issue, Mr Winchester had perceived this as a threat. He said he felt his supervisor did not understand the work pressures he was experiencing, that the supervisor’s threat was a reflection on his competence, and was unjustified since his finalisations were thorough. Mr Winchester said although he had requested extra assistance with the finalisation task, he did not receive it.
Mr Winchester said on average he would receive 4-5 jobs a week and in September 2008 in addition he had about 60 job closures to accomplish. Nonetheless he did complete the jobs by November 2008, often working in his own time.
Grievance report
Mr Winchester said he was not overly distressed about the grievance report. He did not regard the event as threatening. He said the event was a ‘nuisance’ and ‘peeved my professional ego’ but otherwise he regarded the report more as evidence of the difficulties of his role, and the conditions and pressures of work, rather than as a need for any disciplinary action relating to him. He said the report did not lead to stress or feelings of pressure. The grievance was raised by someone who was not a member of his teams and though two people from his teams were nominated among the three listed as bringing the complaint they had not been consulted about its terms and one did not know the complaint was made.
Mr Winchester noted that the report contained some adverse findings, but said in his view there were conflicts between the text and the conclusions which ameliorated the effect of those findings. He affirmed that overall he had not found the report upsetting. He said his work ethic was high and he said he knew he had done his best and any investigation would find he had acted reasonably.
When asked why he had mentioned the event to Dr Shroot, Ms Todorovska, and Dr Zsadanyi, all of whom had referred to it in their reports, Mr Winchester said he had told them because this was part of the context for his depression and as documentary evidence of why he was feeling pressure at work. In his view it was the context, his workload and lack of resources which caused his breakdown, not the outcome in the grievance report.
Events on 6 April 2009
Mr Winchester said of the event on 6 April 2009 that two teams were involved and there was a disagreement between the team leaders as to how to approach a task. When Mr Winchester could not be contacted, the supervisor was called out. Mr Winchester said when he arrived he perceived his supervisor was ‘peeved off’ since he had raised his voice. Mr Winchester said he believed this was because the supervisor thought he had not handled the conflict appropriately.
Since he was standing beside a work hole, where several staff were located and were listening, Mr Winchester said he was embarrassed when, in his frustration that the supervisor was not listening to him, he had an altercation with him and then broke down. After Mr Winchester had broken down, he said his supervisor had removed him from the site adjacent to the workers and he became less aggressive. He had asked Mr Winchester how he was feeling. Mr Winchester said he apologised for his crying, and his supervisor told him to go home and agreed he would take over.
At the hearing Mr Winchester denied that he had become uncharacteristically abusive towards his supervisor in the original interaction with his supervisor. Nonetheless, he conceded he could not recall what he had said. He did say said he believed the call-out of his supervisor was unreasonable since the issue was one his team leaders should have sorted out. Mr Winchester also gave evidence that until the events of 6 April 2009 he thought he had been coping at work, but after this incident he felt overwhelmed and consulted his doctor next day.
Evidence of supervisor
Mr Winchester’s supervisor gave evidence that when first appointed he identified that significant amounts of funds were tied up in capital works projects that had been completed but for which finalisation reports were outstanding. As a consequence payments could not be made. The supervisor said the finding meant he gave priority to this task, and during weekly meetings throughout September he emphasised to the three team coordinators, including Mr Winchester, that this was to be a focus of their work. The supervisor also said he had offered to assist Mr Winchester complete his finalisation reports but Mr Winchester declined the assistance.
The supervisor’s evidence was that Mr Winchester was always willing to assist others, sometimes to the detriment of his own work, that Mr Winchester had mixed relationships with some of the workforce, and that at times he appeared to be struggling to complete tasks despite often working longer hours than required. The supervisor said he offered Mr Winchester further training in supervision and time management and he thought Mr Winchester had followed this up. In August 2008 he said he and Mr Winchester had also developed a personal development plan. Mr Winchester said he could not recall this, nor that it had been implemented. The plan was not in evidence so the Tribunal makes no findings about what it recommended, nor whether it was implemented.
On Tuesday 30 September 2008, the supervisor said that as Mr Winchester still had a number of outstanding finalisation reports, he called Mr Winchester into his office for a meeting, advised him that ‘the timeframe he was taking for closing out reports was unacceptable’, that this was to be a priority, and that ‘if his performance did not improve in relation to completing the reports as directed, and if the number of projects he had not closed out was not significantly reduced, that formal performance management processes would be implemented’.
In his view, each report should take at most fifteen minutes to complete, but could be longer if there were discrepancies. The supervisor’s view was that Mr Winchester’s claim that it took him between one to five hours to finalise a report was ‘excessive’. The financial transaction reports were provided to the team coordinators by the capital works administrator for review for accuracy. The checking was to explain why any element of the job was outside the 10 per cent tolerance allowed in the budget for the job. The report was then returned to the capital work administrator to finalise and follow up on any discrepancies the team coordinator had identified.
The supervisor said of the grievance complaint that he had undertaken the investigation and his report had identified deficiencies in Mr Winchester’s supervision practices and on occasions in his communications. In his view Mr Winchester had been upset by the findings.
In relation to the events of April 2009, the supervisor said when Mr Winchester arrived at the work site where the team leaders were in conflict he was visibly upset and had launched an attack on him. He said it was uncharacteristic behaviour. His recollection was that there were three to four others at the site and when Mr Winchester broke down he suggested they move away from the work site when they had a conversation until Mr Winchester calmed down.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides for the circumstances in which Comcare accepts liability for ‘an injury suffered by an employee if the injury results in … incapacity for work, or impairment’.
In turn this involves recourse to section 4(1) which defines an ‘ailment’, and an ‘impairment’, section 5A which defines ‘injury’, including when a condition is not an injury either because it was not contributed to, to a significant degree, by employment, or it arose as a result of ‘reasonable administrative action conducted in a reasonable manner’.[1]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), (2).
Issues
The principal issue is whether Comcare is liable for Mr Winchester’s condition because it is an ‘injury suffered by an employee [that] results in … incapacity for work, or impairment’. In turn that raises issues concerning:
·The appropriate diagnosis of Mr Winchester’s condition;
·Whether the condition is an ailment;
·Whether that ailment, being a mental ailment was contributed, to, to a significant degree, by Mr Winchester’s employment; and
·If so, whether that ailment is not an ‘injury’ because it was suffered as a result of reasonable administrative action taken in a reasonable manner.
Consideration
Mr Winchester lodged a claim for ‘stress’, affecting his ‘mental state’, with a claimed date of injury of 6 April 2009. He completed his workers’ compensation application on 18 August 2010.
Diagnosis
The first issue is the appropriate diagnosis of Mr Winchester’s condition. Although Ms Todorovska diagnosed a chronic adjustment disorder, the two consultant psychiatrists, the treating practitioner, Dr Shroot, and Dr Lark, an occupational medical specialist, diagnosed a depressive disorder. The Tribunal prefers the views of the psychiatrist, and the other medical experts, including the treating practitioner, to the view of the treating psychologist and finds that Mr Winchester suffered from a depressive disorder. That diagnosis is confirmed as Mr Winchester, although initially reluctant to take anti-depressant medication, has been on such medication since 2010 which he finds helpful and continues to need.
‘Ailment’
The second issue is whether that condition is an ‘ailment’. The Act defines ‘ailment’ in section 4(1) as follows: ‘An ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Mr Winchester’s depressive disorder is a mental disorder, defect or morbid condition. The condition is recognised as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000, Text Revision) (DSM IV – TR), a reputable and widely used manual of such disorders. As such his depressive disorder qualifies as an ‘ailment’.
Whether that mental ailment was contributed, to, to a significant degree, by Mr Winchester’s employment
The requirement that for liability to arise, employment must contribute to the ailment to a significant degree means that the contribution must be ‘substantially more than material’.[2] ‘Material’ had been determined to be more than de minimis, that is, ‘more than a mere contributing factor’,[3] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[4] The interpretation is best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[5] That meaning was picked up in the amendments which led to section 5B(3) of the Act, namely, that the contribution must be ‘substantially more than material’.[6] As the discussion indicates, and the Tribunal accepts, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s5B(3).
[3] Comcare v Sahu-Khan (2007) 156 FCR 536.
[4] Id at 542.
[5] Id at [15]-[16].
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
The reviewable decision conceded that Mr Winchester’s psychiatric condition was contributed to, to a significant degree, by his employment. In that regard, Comcare agrees with the contention of Mr Winchester.
Dr Shroot, Ms Todoroska, Dr Knox, and by implication Dr Lark all conceded his condition was due to events and conditions in his workplace. Dr Zsadanyi noted that ‘stressful workplace factors contributed to a significant decompensation in his mental state’ although he may have had a ‘genetic vulnerability that led to him becoming depressed’. On balance, the predominant view of the medical experts including Mr Winchester’s treating general practitioner and psychologist, was that his workplace contributed to Mr Winchester’s psychiatric condition to a degree that was ‘substantially more than material’.
There was a reference to a genetic predisposition in Dr Zsadanyi’s report. Even if his condition was an aggravation of that predisposition, Dr Zsadanyi’s report does not identify any other significant contributor to his depression. There is also a reference, for example, in Ms Todorovska’s report, to some problems in Mr Winchester’s marriage, but Mr Winchester’s own evidence was that this was due to his working hours and bringing workplace issues home, a view supported by Dr Shroot. In a report, Dr Shroot had said ‘these are probably a further consequence of the various stresses at work’.
The evidence was that Mr Winchester was feeling increasingly pressured by stresses at work. Those stresses, as Mr Winchester said in his second supplementary statement were due to ‘a significant increase in the number of work packs and associated tasks being assigned to my team and me. However, within the same period there was also a significant decrease in manpower resources in my team’. This evidence satisfies the Tribunal that Mr Winchester’s psychiatric condition, being an ailment, was contributed to, to a significant degree, by his workplace.
Whether that ailment is not an ‘injury’ because it was suffered as a result of reasonable administrative action taken in a reasonable manner
In his workers’ compensation claim form Mr Winchester referred to ‘stress and an[xiety] over meeting deadline with limited resources and time lines’. Later, however, he said three administrative actions were pivotal:
·Backlog of work packs and his supervisor’s demands that he complete his outstanding finalisation reports within the next fortnight;
·Grievance process and report; and
·Events of 6 April 2009 when he broke down.
Gray J said in Commonwealth Bank of Australia v Reeve, administrative action is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[7] Rares and Tracey JJ in the majority judgment in Reeve said that ‘administrative action’ referred to ‘action…directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’.[8]
[7] Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463 at [30].
[8] Id at [57].
These three actions were directed specifically to Mr Winchester, they arose out of the relationship between the supervisor and Mr Winchester in the workplace, they related to events in the workplace affecting that relationship, and they were accordingly administrative actions.
Whether administrative action is reasonable must be tested objectively.[9] The meaning of ‘reasonable’ for statutory purposes is its ordinary, natural meaning,[10] which may involve recourse to a dictionary,[11] and must be considered in its context.[12] As the Victorian Supreme Court said in Falconer v Pedersen: ‘One must interpret the phrase [or word] as used in its context, assisted as it may be but not necessarily bound by one of a variety of dictionary definitions’.[13] The administrative action need not be faultless;[14] it is sufficient if it is reasonable in all the circumstances, albeit there are alternative ways it could have been done.[15]
[9] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 per French J at [78]-[79]. See also Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25.
[10] Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461.
[11] DC Pearce Statutory Interpretation in Australia (6th edn, 2006) [3.30]. As Pearce comments ‘the law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance’.
[12] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[13] Falconer v Pedersen [1974] VR 185 at 187.
[14] Re Findlay and Comcare [2013] AATA 324 at [34] – [35].
[15] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82] per French J.
The context may require the consideration of many factors including the seniority of employee, the terms of any contract or directions to which the employee is subject, and the terms, if relevant, of the certified agreement.[16] The circumstances are not confined to the impact on the person involved.[17]
[16] Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [23].
[17] Comcare v Martinez [2013] FCA 439 at [73].
As Lander J said in Keen v Workers Rehabilitation and Compensation Corporation:
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 [sic] action was taken in a reasonable manner by the employer.[18]
[18] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at [47 – 48]. The extract was quoted with approval by Robertson J in Comcare v Martinez [2013] FCA 439 at [83].
The Tribunal takes as a starting point that in the context of administrative action in a workplace it is frequently the cumulative effect of that action which ultimately leads to a claimed injury. In the case of Mr Winchester, the lead-up to his breakdown on 6 April 2009 commenced some time in 2008. In his view, there was an increase in pressure on him to complete tasks, he had less resources with which to do so, and he was, because of his nature and breadth of skills, frequently called on to assist others to the detriment of his own workload. All these factors contributed to an increased workload and his level of stress.
It is also necessary to consider the legal test for the causal link between the administrative action and the employee’s claimed injury. Section 5A(1) indicates that the test requires that the injury is suffered ‘as a result of’ the administrative action. As Gray J said in Reeve:
It is difficult to find in the words ‘suffered as a result of’ some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity.[19]
[19] Commonwealth Bank v Reeve at [29] per Gray J.
As Rares and Tracey JJ, for the majority in Reeve, said:
The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.[20] (Emphasis added).
[20] Id at [65] per Rares and Tracey JJ.
In other words, the administrative action need only make a contribution which as a matter of common sense links the claimed condition to employment for the claim to be excluded on the basis that it is not an ‘injury’ in terms of the Act.[21] There does not have to be a contribution which is material or significant.
[21] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
Mr Winchester nominated three events which contributed to his psychiatric condition. As a matter of common sense, it was only the final event which occurred on 6 April 2009 which precipitated Mr Winchester’s ‘breakdown’. Mr Winchester said in evidence he considered he was managing until that day, a view supported by his not seeking medical assistance for his ‘stress’ until 7 April 2009. The 6 April 2009 is under the legislation the date of injury. Nonetheless, since the Tribunal accepts that it was the cumulative impact of the deteriorating employment conditions leading up to the events of 6 April 2009 which finally resulted in Mr Winchester suffering an ailment and taking time off work, the Tribunal will consider each of the three administrative actions. At the same time, the principal emphasis is on the actions on 6 April 2009.
(1) Work packs
Mr Winchester admitted that of the three and from the end of 2008, four, team co-ordinators, he had the majority of outstanding work packs, that his supervisor had spoken to him during September about the need to close them off, and that doing so was important for ActewAGL’s profitability. The request was not unreasonable given that the task was part of the workload expected of team co-ordinators and it was necessary to reduce the large amount of monies owing to ActewAGL due to outstanding finalisation reports. The direction by the supervisor to all the team coordinators to make this task a priority was operational in nature, but the request by the supervisor to Mr Winchester at the 30 September 2008 meeting was administrative since it was addressed specifically to Mr Winchester and occurred in a meeting between Mr Winchester and the supervisor alone. The request was not unreasonable, given that Mr Winchester had more outstanding finalisations than the other team coordinators.
At that meeting, Mr Winchester said he was told there would be disciplinary action if he did not provide his outstanding finalisations within the next fortnight. He perceived this to be a threat. The suggestion by the supervisor that this could become a performance matter if Mr Winchester did not complete his finalisations within the next fortnight was not unreasonable given that Mr Winchester had been warned at four team meetings in September that this was required and he had not managed to reduce his backlog of finalisations to a sufficient extent. The supervisor said he offered his personal assistance to Mr Winchester and authorised overtime for him to complete the finalisation reports. Mr Winchester said he completed the forms in his own time and he claimed not to have received any extra payment for the time spent. That evidential discrepancy does not need to be explored.
There is nothing about how the supervisor undertook the meeting with Mr Winchester, nor the fact that he allowed him an extra couple of weeks above the initial fortnight’s deadline and did not commence disciplinary or performance management procedures when he did not complete the outstanding finalisations until November 2008, to suggest that the manner in which the request was made was not reasonable. Mr Winchester said he felt threatened by the possible sanction, but there was no evidence provided which indicated that the sanction discussion was untoward or provided in a manner which could be criticised as unnecessarily harsh. In those circumstances, this administrative action was reasonable and was conducted in a reasonable manner.
(2) Grievance
Mr Winchester’s view was that the outcome of the grievance report vindicated his complaints about lack of resources and being under pressure. He said his reference to the grievance report when recounting his history to medical specialists was solely due to it being illustrative of his complaints of stress and pressure, and did not indicate that he had been unduly concerned about the outcomes.
The supervisor’s view was that there were managerial deficiencies which the report identified and which led to the recommendation for Mr Winchester to undertake supervision and time management courses. In his view Mr Winchester was upset when he first heard the outcome of the investigation and he doubted that Mr Winchester’s statement that he was not particularly upset about the findings was entirely accurate.
The Tribunal considers it probable that Mr Winchester was more upset by the outcome of the grievance investigation at the time than he now concedes. Time has probably caused those emotions to abate. To that extent, the Tribunal finds that the events surrounding the grievance processes were part of the context in which Mr Winchester developed his depressive disorder. Nonetheless, the Tribunal finds that the investigation by the supervisor was conducted in a fair and impartial manner. There was nothing unreasonable about how the investigation was undertaken, in its findings which were balanced, nor in its recommendations, which was not objectively reasonable. In those circumstances this administrative action was reasonable and was conducted in a reasonable manner.
(3) Events on 6 April 2009
The events on 6 April 2009 precipitated Mr Winchester seeking medical assistance and being placed on sick leave. The Tribunal finds that it was not surprising that the supervisor was annoyed at being called out to settle the conflict between the two teams. Despite Mr Winchester’s view that the team leaders should have resolved the issue, there are issues which need more senior input. The supervisor’s view was that it was the team coordinator’s role to manage conflicts of this kind. Mr Winchester had not been contactable, and hence the team leaders had contacted the supervisor, an appropriate step in the circumstances.
Since it was unusual for the supervisor to adjudicate such matters it was not unreasonable for him to have been annoyed, annoyance Mr Winchester perceived when he arrived at the site. That annoyance and its being directed to Mr Winchester was not unreasonable in the circumstances. Those circumstances included Mr Winchester not being available when called, the supervisor having to contact him and to wait at the site until he arrived, and Mr Winchester’s uncharacteristically angry response when asked to explain his absence, leading ultimately to Mr Winchester breaking down in front of some of his team members.
Although with hindsight, given Mr Winchester’s emotional state, it may have been preferable for the supervisor’s annoyance not to have been expressed, reasonableness does not require conduct which is faultless, and the fact that after Mr Winchester broke down, the supervisor took him away from other employees to calm him down, indicates he was sensitive to his distress when it occurred. In all the circumstances, the actions of the supervisor were not unreasonable, nor conducted in an unreasonable manner.
The Tribunal does not accept the argument that Mr Winchester’s stress was a symptom of the difficulties he faced in the workplace, rather than its cause and hence it could not be said that the administrative actions that day were causal of his ailment. Mr Winchester had been managing his workload, although at some personal cost, prior to that day. It was the events of 6 April 2009 which precipitated his break down. So as a matter of common sense it was the events of 6 April, as a culmination of the build-up of pressure on Mr Winchester, which caused his depressive disorder and led to his incapacity for employment. These events were both symptomatic of the work pressures he perceived he was facing as well as the cause of his ultimate breakdown. That is, the events were also causal of his ailment.
Although employment contributed to the development or exacerbation of Mr Winchester’s psychiatric disorder, the pivotal action on 6 April 2009 which contributed to the manifestation of his psychiatric condition and which led to his incapacity for work was reasonable administrative action conducted in a reasonable manner. In these circumstances, the decision under review is affirmed.
I certify that the preceding 79 (seventy nine) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ..................[sgd].......................
Associate
15 January 2014
Date(s) of hearing 18 and 19 November 2013 Counsel for the Applicant Ian Bradfield Advocate for the Applicant Michael Hyland Solicitors for the Applicant LHD Lawyers Counsel for the Respondent Andrew Dillon Advocate for the Respondent Gareth McCasker Solicitors for the Respondent Australian Government Solicitor
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