RSBQ and Comcare (Compensation)
[2017] AATA 1965
•30 October 2017
RSBQ and Comcare (Compensation) [2017] AATA 1965 (30 October 2017)
Division:GENERAL DIVISION
File Number(s): 2015/0749 & 2015/2623
Re:RSBQ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:A G Melick AO RFD SC, Deputy President
Date:30 October 2017
Place:Hobart
The decisions under review are affirmed.
........................................................................
A G Melick AO RFD SC, Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – applicant claims flawed recruitment process caused psychological injury – applicant claims failure to implement return to work plan caused aggravation of that injury – whether injury caused by disappointment at failing to obtain promotion – whether recruitment process and return to work plan were reasonable administrative action undertaken in a reasonable manner – decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 14
Public Service Regulations 1999 (Cth)
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Comcare v Martinez (No 2) (2013) 212 FCR 272; [2013] FCA 439
Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
McKinnon and Australian Postal Commission [2001] AATA 297Re Georges and Telstra Corporation Ltd [2009] AATA 731
REASONS FOR DECISION
A G Melick AO RFD SC, Deputy President
30 October 2017
BACKGROUND
The Applicant commenced his position in an APS5 role with a Commonwealth Government agency (the Agency) on 28 April 2005.
The Applicant began acting in an APS6 position in September 2011. Between July 2012 and January 2013 the Applicant acted in an EL1 role before returning to act in the APS6 position. During that period, his substantive position was the APS5 role to which he had initially been appointed. The APS6 position that the Applicant was acting in was advertised as a permanent role in 2013. The Applicant applied for the position and was unsuccessful.
The factual background and materials were voluminous which has necessitated the detail as set out below.
By application 2015/0749 the applicant lodged a claim for compensation with the respondent for ‘anxiety and depression symptoms following prolonged dispute with employer’. This claim arose, inter alia, as result of the applicant's alleged corruption of the recruitment process and his ‘disappointment’ at failing to be appointed to the position.
Application 2015/2623 relates to a claim for an aggravation of the existing injury referred to in the above-mentioned application as a result of the employer’s failure to finalise an appropriate return to work plan (RTW plan).
The Applicant was self-represented and evidence relating to both claims was often intertwined. Some separation has been attempted in the facts that follow however it has been difficult to categorise some of the ten volumes of material exhibited into one claim or another.
HISTORY
The Applicant was notified in person that he had not been successful by his supervisor Mr A on 7 August 2013. The Applicant attended work on the morning of 8 August 2013. He asked to work from home for the remainder of that day and for the following day, and the Agency agreed.
On the evening of 8 August, the Applicant emailed Mr A (Exhibit 17). In the email he referred to a telephone conversation that had taken place earlier that evening between himself and Mr A. The Applicant raised concerns about his perceived flaws in the recruitment policy:
From our telephone discussion this evening, I note that you will provide me with certain information that has been requested. As also discussed, and given the guidance published by the APSC to which I have previously referred you, I think it important that the nature and reasons for any non-disclosure is made clear. I understand that you have consulted [the Agency’s] HR on this, so I will assume that such information will compromise a full disclosure from you, to the extent required under the law.
Further to the above, however, two other matters are causing great me [sic] concern in the immediate:
(1) When you advised me that I had been unsuccessful in winning my job on a permanent basis, I recall your comments to the effect that whilst there may be future opportunities for me within [the Agency] at various levels, my reaction to this current situation is of interest to people within [the Agency].
Please confirm in writing to which people you refer and set out what evidence you have relied upon in making this statement. Please provide a copy of any evidence.
(2) I am unclear as to why you declared yourself ineligible to act as my referee quite late in the process, despite your earlier acceptance of the role. Can you please explain the events that gave rise to this change in procedure.
I am also concerned that time pressure was placed on my replacement referee, [Ms B]. I understand that [Ms B] was surprised by the urgency of your requests for her referee’s report. Please detail the approach taken by your panel in obtaining an alternate referee report and provide me a copy of your panel’s correspondence with my 2nd referee. As you will appreciate, I must ascertain whether any aspect of the process has been prejudicial to the selection.
The Applicant took previously planned leave from 12 August 2013 to 27 August 2013.
On 27 August 2013, the Applicant provided the Agency with a medical certificate from his general practitioner, Dr Gregor, covering the period 26 August 2013 to 31 August 2013 inclusive. The medical certificate stated that the Applicant was ‘unfit for work’ (T documents; T4 at 31, Exhibit 1).
On 29 August 2013, the Applicant applied for unpaid leave for the period 2 September 2013 to 27 September 2013 (T14.3 at 102, Exhibit 1). The Applicant’s email stated:
I am very concerned at the extreme levels of stress I am experiencing as a result of being overlooked for permanent appointment to the [APS6] role; a role I have successfully filled for some years and for which my performance has continued to be formally assessed as exceeding expectations.
I am due to return from leave on Monday. However, in the interest of my health and in order that I can take the time to adequately process recent events, I hereby apply for 4 weeks unpaid leave, commencing Monday 2 September 2013.
The Applicant’s leave was approved. Following the four weeks of unpaid leave, the Applicant submitted medical certificates for the following periods:
(a)30 September 2013 – 13 October 2013 (Medical certificate dated 27 September 2013);
(b)14 October 2013 – 28 October 2013 (Medical certificate dated 14 October 2013);
(c)28 October 2013 – 30 November 2013 (Medical certificate dated 11 November 2013);
(d)27 November 2013 – 31 December 2013 (Medical certificate dated 27 November 2013);
(e)31 December 2013 – 31 January 2014 (Medical certificate dated 30 December 2013);
(f)31 January 2014 – 28 February 2014 (Medical certificate dated 28 January 2013)
Each of those medical certificates stated that the Applicant was ‘unfit for work’ for the relevant period.
On 4 November 2013, a report from Dr Gregor was provided to the Agency at its request (T14.3 at 155, Exhibit 1). This report noted that the Applicant had first sought medical treatment for the relevant injury on 8 August 2013 and stated that he:
was stressed within his workplace and felt unable to return to work. There were several issues in play, the most significant relating to being passed over for promotion to a deserved appointment in his workplace … The reasons for this were not satisfaorally [sic] explained to him and he felt the the [sic] decision was unfairly and inappropriately made. He has had difficulty facing a return to work since.
The Agency arranged for the Applicant to attend a fitness for duty assessment with Dr Tschirn, consultant occupational physician, on 21 November 2013. Dr Tschirn provided a report to the Agency on 3 December 2013 (T14.3 at 149, Exhibit 1), concluding:
there is no specific medical issue rather an industrial relations matter that needs to be sorted out through normal management mechanisms and preferably the sooner this can be done the better, lest [the Applicant] start developing medical effects as a consequence of his ongoing stress at present.
Dr Tschirn recommended the Applicant seek additional counselling assistance to work through issues, and noted:
short of there being a failure of due process in the selection process, he himself needs to come to grips with the rejection and the emotions as a consequence of that.
On 4 December 2013, the Applicant wrote to the Director of People and Capability at the Agency advising that he was seeking a review of the recruitment process (T14.3 at 360, Exhibit 1). He alleged that aspects of the recruitment process were ‘highly irregular’. The Applicant noted his concern that his then supervisor Mr A had agreed to provide him with a reference in June 2014 but had declared himself to be ineligible to act as the Applicant’s referee after the interviews had been held. The Applicant wrote:
It is clear from the available SAC [Selection Advisory Committee] documents that repeated pressure was then placed on my alternate referee (an extremely busy Executive with national management responsibilities) to provide a report in an unreasonable time frame. My second referee would have had ample time to consider my application and her referee’s report if [Mr A] had correctly handled this vital component of the selection process from the outset.
I am shocked to learn that [the Agency] has destroyed primary evidence of the interview processes ([Mr C’s] notes). This is highly irregular and further places into question the integrity of the entire process.
Although not referred to in the above-mentioned letter, the Applicant gave evidence during the hearing that he had not selected the alternative referee (Ms B) himself but that she had seemingly been chosen by Mr A. The Applicant believed that Ms B had phoned Mr A about an unrelated matter and he had then sought a reference from her. Notes taken by Mr A relating to the recruitment process were put before him during the hearing. The notes referred to Ms B as an alternative referee. When asked who had nominated her, Mr A indicated that he could not recall but he expected the note had been made contemporaneously during the Applicant’s interview as a result of a discussion about who his alternative referee would be.
Mr A also gave evidence that he would not have selected or approached a referee without first consulting a job applicant. It was unclear from the evidence who had nominated Ms B as the alternate referee and how she came to provide her reference.
On 16 December 2013, Ms D, Chief Executive of the Agency, wrote to the Applicant in response to his request for review of the recruitment process (T14.3 at 363, Exhibit 1). Ms D determined that she was unable to conduct a review of the process as action relating to the engagement of an APS employee is not reviewable action under Schedule 1 to the Public Service Regulations 1999 (Cth).
On 24 January 2014, the Applicant wrote to Ms D seeking a secondary review of the recruitment process (T14.3 at 364, Exhibit 1). Ms D responded on 10 February 2014 and advised that the Applicant could seek review of her initial decision by writing directly to the Merit Protection Commissioner (T14.3 at 366, Exhibit 1).
On 28 February 2014, the Applicant attended a fitness for duty assessment with Dr Sheehan. The assessment did not proceed. Ms E then instructed the Applicant not to attend work on 3 March 2014 as she could not be satisfied that the Applicant was fit for work (T14.3 at 208, Exhibit 1). An alternative fitness for duty assessment was scheduled for 14 March 2014 with Dr De Saxe, consultant psychiatrist.
On 2 March 2014, the Applicant wrote to Ms D advising that he was making a complaint against his supervisor in respect of comments that had been made to the Applicant on 7 August 2013 (T14.3 at 208, Exhibit 1). The Applicant alleged that after informing him of the outcome of the selection process, Mr A ‘leant’ on the Applicant to dissuade him from seeking review of the appointment. He further alleged that Mr A appeared to have ‘deliberately acted to create the impression that senior managers would be watching and assessing [his] reaction, and that this would affect [his] future job prospects’. The Applicant contended that the comments made by Mr A were in breach of the APS Code of Conduct and APS values.
On 5 March 2014, the Applicant wrote to the Merit Protection Commissioner seeking review of Ms D’s decision not to conduct a primary review of the recruitment process (T14.3 at 368, Exhibit 1). The Applicant stated that ‘the recruitment process was materially flawed and subject to serious procedural defect’ and expressed frustration that his requests for review had been refused ‘despite acting in full-accordance with [the Agency’s] own advice’.
On 13 March 2014, Mr F, Chief Operating Officer of the Agency, wrote to the Applicant regarding his complaint against Mr A (T14.3 at 353, Exhibit 1). Mr F wrote that the letter he had received from the Applicant was being treated as ‘a formal application for primary review … of certain actions by [Mr A’s] and ‘as a request to the CEO to commence formal misconduct action against [Mr ]. Mr F wrote:
You have stated that the APS actions that you have asked the Chief Executive to review occurred in August 2013 and September 2013. I note that more than 120 calendar days had passed before you made your application for review of these actions on 2 March 2014.
I do not presently consider that there are any exceptional circumstances that explain your failure to make an application for review within the period specified in the relevant part of the table.
On that basis my preliminary view is that the actions you have complained of are not reviewable actions.
It is also my preliminary view that the application you have made is misconceived and lacking substance. Although you say that [Mr A] has coerced you and suggest that he has improperly used his position to benefit himself, my preliminary view is that you have not provided any evidence of conduct by [Mr A] that is anything other than reasonable management action.
It is also my preliminary view that your application is frivolous.
Mr F further advised that he did not intend to commence misconduct action against Mr A as he considered the comments made to the Applicant to have been words of encouragement and nothing more. Mr F informed the Applicant that he was entitled to apply for a review of these findings.
The Applicant responded to this letter on 24 March 2014, making further submissions in response to Mr F’s preliminary findings (T14.3 at 355, Exhibit 1). He considered that Mr F had ‘overreached’ in treating the 2 March 2014 letter of complaint as a commencement of formal misconduct action against Mr A. The Applicant also opined that dismissal of the complaint on the basis that it had not been made in the specified time frame was unreasonable:
I believe I adequately detailed the rationale for the timing of my complaint in the last substantive paragraph of my letter of complaint. It appears, however, as though you may have dismissed this information without giving my situation due consideration … I believe that there are compelling grounds, given my absence from the workplace and the multitude of serious and urgent issues with which I have had to deal, for my complaint to be considered out-of-time.
Mr F replied by letter dated 2 April 2014 (T14.3 at 358, Exhibit 1) and stated that nothing in the Applicant’s further submissions convinced him that there were exceptional circumstances explaining the failure to apply for review within the specified period. Further, Mr F stated that if he was wrong with respect to the time limit, he nonetheless considered the complaint to be ‘misconceived, lacking in substance and frivolous’.
On 17 March 2014, Dr De Saxe provided a report to the Agency at its request, following a fitness for duty assessment completed on 14 March 2014 (T14.3 at 238, Exhibit 1). Dr De Saxe diagnosed the Applicant with ‘Adjustment Disorder with Anxious Mood’. He concluded that the Applicant had developed his ‘intense anxiety symptoms’ in response to the specific stressor of his failure to be appointed to the position. Dr De Saxe noted that the Applicant:
had an unusually intense emotional response to his failure to obtain the position, which has its basis in his personality characteristics, which have rendered him vulnerable to the development of an acute adjustment disorder…
It is clear that he is very angry and humiliated and has a great sense of injustice, but these have coalesced to produce a disorder, manifested mainly by anxiety which is so intense as to prevent him from being able to deal with the inevitability of a return to his substantive position.
On March 23 2014, the Applicant made an application to the Fair Work Commission seeking an urgent declaratory order that his employment had been effectively terminated on an involuntary basis (T14.3 at 267, Exhibit 1). The Applicant sought alternative orders that he be permitted to return to work, or that the Agency grant him discretionary paid leave while the details of a RTW plan were agreed.
On March 28 2014, a delegate of the Merit Protection Commissioner confirmed the Agency’s decision not to conduct a primary review of the recruitment process on the basis that the relevant action was not reviewable as it related to the engagement of an APS employee (T14.3 at 372, Exhibit 1). The delegate cited r 5.23(2)(a) of the Public Service Regulations1999 as specifically excluding actions of this type from review.
The Applicant submitted a claim for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) to the Respondent dated 31 March 2014 (T3 at 15, Exhibit 1). The Applicant made a claim in respect of ‘anxiety and depression symptoms following prolonged dispute with employer’. On the claim form, the Applicant answered the question ‘[w]hen were you injured or when did you first notice that you were ill?’ with ‘11 am on 8 August 2013’. The Applicant wrote that the cause of the injury was ‘ongoing failure of [the Agency] to put in place return to work plan after absence. No wages since Sept. 2013. Bullying/harassment’.
On 6 April 2014, the Applicant wrote to Ms G, the Agency delegate who had signed off on the appointment of the successful candidate to the permanent APS6 position (T27.3 at 476, Exhibit 1). The Applicant wrote that he required information from Ms G in her capacity as delegate in order to decide whether to commence an application for judicial review.
On 11 April 2014, the Agency provided the Respondent with an initial statement in response to the Applicant’s claim for workers’ compensation (T4 at 31, Exhibit 1).
On 14 April 2014, Ms G wrote to the Applicant in response to his letter of 6 April requesting information regarding the appointment of the APS6 position (T27.3 at 483, Exhibit 1). Ms G wrote ‘I do not propose to answer the twenty or more requests for explanations and information in your letter’.
On 14 April 2014, Dr Gregor provided a medical report to the Respondent at its request (T7 at 40, Exhibit 1) which contained the following information:
(a)that the Applicant first consulted Dr Gregor’s practice with the current condition on 8 August 2013 and on this visit '[n]o details of the workplace issues involved were recorded … but this was the start of the first impairment preventing him from returning to work’;
(b)that the Applicant found out he had been unsuccessful in his application for the position at this time and ‘the reasons for this decision were not adequately described to him as one would normally expect’;
(c)that the Applicant appeared to have been meeting all requirements for the higher position so when it was advertised, he had ‘applied under the expectation that he would be successful’;
(d)that Dr Gregor believed that ‘[the Applicant] was never given an appropriate debriefing and explanation after the event to detail why his application had been unsuccessful’. Further, that a series of administrative missteps by the Agency had aggravated matters;
(e)that the Applicant felt he could not return to his previous workplace. He had asked to be redeployed to another department but the Agency had not been willing to go down this route;
(f)that the Applicant had no pre-existing or underlying conditions that may have caused or contributed to his medical problems. Nor was Dr Gregor aware of any non-work factors which had contributed to the Applicant’s condition;
(g)that on 31 March 2014, Dr Gregor had referred the Applicant to a clinical psychologist, Dr Walter Slaghuis, for review and treatment; and
(h)that Dr Gregor diagnosed the Applicant with ‘a significant Reactive Depression and associated Anxiety Disorder’ which he considered to have begun when he was unsuccessful in obtaining the expected promotion without adequate explanation being given.
On 14 April 2014, the Respondent wrote to Dr Schutz confirming he would conduct a medical assessment of the Applicant and that this had been arranged for 12 May 2014.
On 15 April 2014, the Applicant sent an email to the Agency regarding his medical assessment with Dr Schutz (T9 at 51, Exhibit 1). The Applicant attached a letter from Dr Gregor which advised that the Applicant’s underlying anxiety and depression was exacerbated every time he attended a review with a new specialist (T9.1 at 52, Exhibit 1). Dr Gregor felt that the planned assessment should be cancelled or reorganised to be completed urgently to allow the Applicant to begin a ‘proper treatment programme’.
On 21 April 2014, the Applicant provided a statement to the Respondent setting out what he considered to be the cause of his injury (T11 at 63, Exhibit 1). This included:
(a)the Agency’s failure to implement a RTW plan;
(b)the Agency’s apparent attempts to delay and obstruct proceedings; and
(c)the fact that the Applicant had been ‘locked out’ of his workplace and denied the opportunity to earn his wage, noting that he had exhausted all accrued entitlements and had been denied paid discretionary leave without reasons.
The Applicant also stated that the Agency appeared not to have given the medical report of Dr Gregor proper consideration nor acted in accordance with the recommendations contained within the first two medical reports. He strongly resisted any assertion that his condition had resulted from failing to attain a promotion, arguing that this suggestion was not supported by the facts.
On 22 April 2014, the Agency finalised the Applicant’s RTW plan after having provided the Applicant and Dr Gregor with an opportunity to comment on a draft plan (T14.1 at 76, Exhibit 1).
On 23 April 2014, the Applicant emailed the Agency regarding his psychological treatment program (T12 at 67, Exhibit 1). The Applicant wrote that he had an appointment with Dr Slaghuis scheduled for 29 April 2014 but requested that this be postponed. He attached a letter from Dr Gregor similarly advising that the treatment with Dr Slaghuis be delayed until after an assessment with Dr Schutz, scheduled for May 2014 (T12.1 at 68, Exhibit 1).
On 5 May 2014, the Applicant wrote to MLCOA (T13 at 69, Exhibit 1) requesting:
(a)confirmation that he would be able to bring a support person to his assessment with Dr Schutz on 12 May 2014;
(b)that he be given reasons why he had been asked by Dr De Saxe on 14 March 2014 whether he ‘had attended the 28 February appointment [with Dr Sheehan] with a man named Terry’ and whether he had attempted to ‘transcribe’ this consultation with Dr Sheehan; and
(c)that he be given reasons why the assessment with Dr Sheehan on 28 February 2014 had been cancelled minutes after it commenced.
In this letter, the Applicant also expressed his concerns regarding Dr Sheehan’s behaviour on 28 February 2014 and stated that he had not taken any notes at that appointment.
On 30 May 2014, MLCOA responded to the Applicant’s letter dated 5 May 2014 (T21 at page 430, Exhibit 1) and stating that the attendance of a support person at an independent medical examination was a matter within the discretion of each consultant. In addition, MLCOA also explained that Dr Sheehan had advised that the assessment on 28 February 2014 had been terminated because the Applicant had intended to transcribe the entire assessment and had declined to proceed pending a discussion with Ms E. MLCOA noted that Dr Sheehan had supplied a report to the Agency regarding the assessment.
On 5 May 2014, the Agency provided the Respondent with a further statement in response to the Applicant’s workers’ compensation claim (T14.1 at 74, Exhibit 1). Among other things, the Agency stated that it had been taking steps to try to return the Applicant to work and develop a RTW plan. The Agency also noted that the Applicant had asked at least six times for discretionary paid leave and had been denied on each occasion. Finally, the Agency noted that the Applicant had lodged complaints of bullying and harassment against a number of the Agency’s personnel but none of these allegations had been substantiated.
On 16 May 2014, the Applicant wrote to Ms D raising concerns about the way Ms H had dealt with his concerns (T15.2 at 404, Exhibit 1). The Applicant’s concerns were:
(a)that she had refused to provide reasons for the Agency’s refusal to grant him paid discretionary leave; and
(b)that she had relied on the Applicant’s Fair Work Commission application as a basis for refusing to provide a substantive response to the Applicant’s earlier emails and that she had not addressed the Applicant’s other questions about this issue.
The Applicant also detailed his concerns with the way Ms H had managed his complaints, stating:
Following Ms H’s appalling personal attacks on the character and integrity of both myself and my doctor … it is clear beyond any reasonable doubt that Ms H is deliberately engaging in ongoing behaviour that constitutes severe workplace bullying and harassment.
On 21 May 2014, the Applicant wrote to the Agency alleging that Ms H was ‘creating false and extremely negative impressions of my actions and those of my treating physician’ (T16 at 407, Exhibit 1) and requested that this complaint be formally investigated.
On 22 May 2014, the Applicant wrote to the Respondent in response to the Agency’s further statement dated 5 May 2014 (T17 at 412, Exhibit 1). The Applicant alleged that:
(a)the Agency did not provide appropriate RTW arrangements for over ten months and may have acted punitively to retaliate against his seeking review of the recruitment process and his lodging of official complaints about the manner in which he had been treated;
(b)the Agency’s RTW plan was not a RTW ‘in the usual and proper sense’. He opined that the Agency may not have fully understood and contextualised proper RTW planning processes and had not taken appropriate steps to obtain Dr Gregor’s feedback on the draft RTW plan;
(c)the Agency seemed fixated on the fact that he cited 8 August 2013 as the date of injury but that he was not skilled, knowledgeable or experienced in workplace injury assessment and management and therefore he had simply noted his last work date;
(d)Agency personnel were resorting to personal attacks on him and Dr Gregor to bolster their repudiation of his claim;
(e)Ms H knowingly made a false statement in the Agency’s further statement to the Respondent. She indicated that the Applicant had been acting in an APS6 position since 7 March 2013 when he actually started in the role in September 2011; and
(f)the Agency had deliberately omitted, or substantially played down, serious incidents over the last ten months. The Agency has obscured a threat made by an executive against his employment and had deemed 2 and 3 January 2014 to be ‘unauthorised leave’ even though he had a valid medical certificate covering both days.
On 26 May 2014, Dr Schutz prepared a report at the Respondent’s request (T19 at 418, Exhibit 1). Dr Schutz opined that the Applicant’s failure to process his emotions after not obtaining the position manifested with ‘ongoing resentment and anger’ and he diagnosed the Applicant with ‘an adjustment disorder with mixed disturbance of emotion and conduct.’ Dr Schutz described the condition as:
manifesting with disturbed conduct and impairment in functioning; namely he has not returned to work in a manner usually consistent with this form of injury with subsequent financial hardship.
By determination dated 5 June 2014, the Respondent disallowed the Applicant’s claim under s 14 of the SRC Act (T22 at 432, Exhibit 1). The Respondent found that the Applicant was suffering from an ailment, namely ‘adjustment disorder with mixed disturbance of emotion and conduct’. Having regard to the medical evidence, the Respondent found that this ailment arose as a direct result of the Applicant’s failure to obtain the APS6 position on 8 August 2013. The Respondent considered that this failure to obtain the promotion constituted ‘administrative action’ under the SRC Act, that the administrative action was reasonable and that it was carried out in a reasonable manner. Accordingly, the Respondent concluded that the circumstances of the Applicant’s claim fell within the exclusionary provision in s 5A(1) of the SRC Act.
On 26 June 2014 and 31 July 2014, the Applicant wrote to the Respondent regarding his intention to lodge a request for reconsideration of the determination dated 5 June 2014 (T23 at 446 & T24 at 450, Exhibit 1). Amongst other things, the Applicant asked for an extension of time to lodge the request. The extension was granted until 19 September 2014. A further extension was applied for and granted until 3 October 2014.
On 3 October 2014, the Applicant requested a reconsideration of the determination dated 5 June 2014 (T27 at 462, Exhibit 1). The Applicant stated that the actions undertaken in relation to the recruitment process were the:
direct and sole cause of the significant workplace injury diagnosed by [the Respondent] … there is overwhelming evidence that the recruitment policy conducted by [the Agency] was, in fact, materially flawed and subject to significant procedural defects which cannot reasonably be held out by the Australian Government as being reasonable administrative action.
On 20 October 2014, the Agency wrote to the Respondent in response to the Applicant’s request for reconsideration (T28 at 484, Exhibit 1). The Agency maintained its position that the recruitment process had comprised of reasonable management action undertaken in a reasonable manner.
In the reviewable decision dated 19 December 2014 (T30 at 492, Exhibit 1), the review officer affirmed the initial determination dated 5 June 2014. The review officer found that the Applicant was suffering from an ailment which was contributed to, to a significant degree, by the Applicant’s failure to obtain the promotion and concluded that the claim was excluded by the operation of s 5A(1) of the SRC Act. The review officer was ‘satisfied that it was reasonably open for your employer to conduct the application, interview and appointment process in the way that they did’ and that the selection process was not flawed or unfair in any way.
The Fair Work Commission handed down its decision in the Applicant’s case. The decision was limited to the question of whether the Agency should have granted the Applicant discretionary leave with pay. It was held that there was no requirement for the Agency to grant the Applicant discretionary leave with pay during any of the relevant periods. Commissioner Lee noted that the evidence supported the view that the Agency had been ‘strenuously’ trying to get the Applicant back to work.
On 31 March 2015, Dr Slaghuis provided a report to the Applicant’s insurer at its request (T20.2, Exhibit 2). He gave a diagnosis of ‘Adjustment Disorder with Anxiety’ and opined that the Applicant’s symptoms were ‘attributable to events subsequent to his unsuccessful APS6 job application’. Dr Slaghuis identified two precipitating factors for these symptoms:
(a)the Applicant becoming aware that he had been unsuccessful in obtaining the position and subsequently forming the belief that the selection process was flawed; and
(b)the delay in organising and implementing the Applicant’s return to work, which had resulted in an exacerbation of his symptoms.
APPLICATION 2015/0749
CLAIM
By a claim form dated 31 March 2014, the Applicant lodged a claim for compensation with the Respondent under the SRC Act (T3, Exhibit 1).
In the claim form, the Applicant described his condition as ‘anxiety and depression symptoms following prolonged dispute with employer’ and identified the cause of his injury as the ‘ongoing failure of [the Agency] to put in place return to work plan after absence. No wages since Sept. 2013. Bullying/harassment’. In response to a question in the claim form asking when the Applicant was injured or first noticed that he was ill, the Applicant provided the date of 8 August 2013.
On 5 June 2014 a delegate of the Respondent disallowed the Applicant’s claim for compensation under the SRC Act (T22 at 432, Exhibit 1). The delegate determined that the Applicant’s claim fell within the exclusionary provisions of the SRC Act.
The Applicant requested a review of the delegate’s decision on 3 October 2014 (T27, Exhibit 1). On 19 December 2014 a review officer affirmed the decision (T30, Exhibit 1).
On 11 February 2015 the Applicant applied to this tribunal for review of that decision (T1, Exhibit 1).
ISSUES
The Applicant and the Respondent both identified the issues to be determined by the Tribunal in their respective written submissions. The parties did not agree on the relevant issues prior to the hearing. The Respondent identified the issues in application 2015/0749 as set out below:
3. Issues
Application 2015/0749
3.1Has the Applicant suffered an injury, which includes a disease, as defined under subsection 5A(1) of the SRC Act? This requires consideration of the following three issues:
3.1.1Does the Applicant suffer from an ailment as defined in section 4 of the SRC Act?
3.1.2If so, has any such ailment been significantly contributed to by the Applicant’s employment, so as to meet the definition of ‘disease’ under subsection 5B(1)?
3.1.3Does the exclusionary provision in subsection 5A(1) exclude liability for the Applicant’s claimed condition?
3.2Is the Respondent liable to pay compensation under section 14 of the SRC Act?
The Applicant also identified the issues to be determined by the Tribunal. He described the issues with reference to various Agency and APS guidelines and policies, including Recruitment Guidelines, Employee Relations Advice, APS Codes of Conduct and APS Employment Conditions. The Applicant’s articulation of the issues relates to the reasonableness of the recruitment process undertaken by the Agency and whether or not it constituted a breach of those guidelines and policies. In his statement of the issues, the Applicant did not focus on the existence of an injury within the meaning of the SRC Act or any exclusionary provisions that might preclude compensation.
LEGISLATIVE FRAMEWORK
The SRC Act establishes a scheme for the provision of rehabilitation and workers’ compensation for work related injuries. Under s 14(1), the Respondent is liable to pay compensation in respect of an injury suffered by an employee if that injury results in death, incapacity for work, or impairment. Compensation is available to employees of the Commonwealth, Commonwealth authorities, and licensed corporations: s 5(1).
‘Injury’ is defined in s 5A(1) of the SRC Act to mean:
(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 employment) that is an aggravation that arose out of the employee’s 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.
Section 5A(2) provides guidance on the meaning of ‘reasonable administrative action’:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c), or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The word ‘disease’ in s 5A(1) is defined in s 5B(1), (2) and (3):
(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 of 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.
Section 4 of the Act defines ‘ailment’ as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
EVIDENCE
Multiple volumes of documents were tendered into evidence during the hearing. This included the T documents for both applications, supplementary documentation containing the Agency’s records relating to the Applicant’s complaints and RTW process, and additional correspondence and medical reports.
The Applicant gave his own evidence and was then cross examined extensively during the hearing. I have no doubt that the Applicant’s evidence was truthful in articulating events as he perceived them. The Applicant called his treating psychologist, Dr Slaghuis to give evidence by phone. He also called the Agency’s current Director of People and Capability, Ms J.
I agree with the assessment of Dr Slaghuis where he notes that the Applicant’s thinking is ‘logical and linear and his verbal expression articulate, precise, and erudite’ (T12 at 74, Exhibit 2). He also noted that the Applicant ‘expresses himself with dignity and considerable kindness.’ I do note, however, that the Applicant sometimes became quite persistent, excitable and repetitive in his submissions although he was always able to clearly communicate his concerns.
The Respondent called the following lay witnesses to give evidence during the hearing:
(a)Ms G, who had been the delegate responsible for signing off on the appointment of the successful candidate to the APS6 position;
(b)Mr C, who had been on the selection panel;
(c)Ms I, who was employed by the Agency and had provided a reference for the Applicant with respect to the APS6 position; and
(d)Mr A, who had been on the selection panel and was the Applicant’s direct supervisor during the recruitment process.
The Respondent also called the following medical professionals to give evidence:
(a)Dr Peter Farnbach, psychiatrist, who assessed the Applicant and produced three reports dated 7 May 2015, 24 June 2015 and 11 January 2015;
(b)Dr Philip Reid, psychiatrist, who assessed the Applicant in September 2015;
(c)Dr Ian De Saxe, consultant psychiatrist, who assessed the Applicant in March 2014;
(d)Dr Gregor Schutz, general practitioner, who assessed the Applicant in May 2014; and
(e)Dr Grantley Tschirn, consultant occupational physician, who assessed the Applicant in November 2013.
CONSIDERATION – APPLICATION 2015/0749
Does the Applicant suffer from an ailment within the meaning of s 4 of the Act?
The Applicant has been assessed by a number of medical practitioners, including his treating general practitioner, Dr Gregor, his psychologist, Dr Slaghuis, and various medical professionals engaged by the Respondent. He has been diagnosed with the following conditions:
(a)Anxiety and depression symptoms (medical certificate from Dr Gregor dated 31 March 2014; T38 at 513, Exhibit 1);
(b)Adjustment disorder with anxious mood (report of Dr De Saxe dated 17 March 2014; T14.3 at 238, Exhibit 1);
(c)Severe Reactive Anxiety/Depression Disorder and associated Adjustment Disorder (report of Dr Gregor dated 14 April 2014; T9 at 58, Exhibit 2); and
(d)Adjustment Disorder with mixed disturbance of emotion and conduct (report of Dr Schutz dated 26 May 2014; T19 at 423, Exhibit 1)
In its written submissions, the Respondent contended that the Tribunal should accept Dr Schutz’ diagnosis of ‘Adjustment Disorder with mixed disturbance of emotion and conduct’ on the basis that it is ‘more descriptive’ than those of other medical practitioners. I accept this diagnosis.
I find that the Applicant’s condition, as it is variously diagnosed, falls within the definition of ailment set out in s 4 of the SRC Act as it is a mental ailment, disorder, defect or morbid condition.
Has the Applicant’s ailment been significantly contributed to by the Applicant’s employment, so as to meet the definition of ‘disease’ under s 5B(1) of the Act?
The High Court in Comcare v Martin (2016) 258 CLR 467 held that the causal connection required by s 5A(1) of the SRC Act is satisfied if the ailment or aggravation would not have been suffered by the employee without the administrative action being taken. However, the employee’s employment need not be the sole cause of the ailment or aggravation. At paragraph 45 of their joint judgment, French CJ, Bell, Gageler, Keane and Nettle JJ stated:
There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease [within the meaning of s 5B(1)]: it would have been contributed to, to a significant degree, by the employee’s employment.
During the hearing, the Respondent conceded that the Applicant’s ailment had been significantly contributed to by the Applicant’s employment with the Agency (Transcript, 16 January 2017, page 8, see especially [30]-[35]). It is therefore not necessary for me to determine whether the Applicant’s ailment was significantly contributed to by the Applicant’s employment for the purposes of the definition of ‘disease’ found in s 5B(1) of the SRC Act.
Does the exclusionary provision in s 5A(1) exclude liability for the Applicant’s claimed condition?
As set out above in this decision at paragraphs 62-63, s 5A of the SRC Act contains an exclusionary provision whereby a disease, injury or aggravation suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ is not compensable under that Act. Section 5A(2) provides a non-exhaustive list of examples of administrative action including, among other things, ‘anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit’.
This exclusionary provision has been interpreted by the courts on a number of occasions and the relevant case law provides guidance as to the meaning of both ‘reasonable administrative action’ and ‘reasonable manner’.
In Comcare v Martin (2016) 258 CLR 467, it was held by the High Court that the causal connection leading to the exclusion from the definition of injury is made out if the disease suffered is a mental condition or aggravation of a mental condition brought on by a failure to obtain promotion, including a reaction to a perceived consequence of the failure to obtain promotion. At paragraphs 46-48, their Honours wrote of the exclusionary provision:
The purpose [of the exclusionary provision] was described in the explanatory memorandum to the Bill for the Amending Act as being ‘to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation’ and as including, in particular, to prevent claims ‘being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of’ such action. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.
The Federal Court in Comcare v Martinez (No 2) (2013) 212 FCR 272 (Martinez) approved the findings of the South Australian Supreme Court in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 (Keen). Justice Robertson in Martinez approved the reasoning of Lander J in Keen where, at paragraphs 47-48, his honour had opined:
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.
In Martinez, Robertson J stated at paragraph 82 that:
the word “reasonable” allows the possibility that there may be more than one way of doing things ‘reasonably’, and the judgment required is not whether the thing could have been done more reasonably.
This decision drew on the reasoning of French J, as he then was, in the Full Federal Court matter of Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105. Although French J was interpreting the concept of reasonableness in the context of the Racial Discrimination Act 1975 (Cth), his Honour’s remarks have application in the present matter. At paragraph 79 of his decision, French J wrote:
There are elements of rationality and proportionality in the relevant definitions of reasonably … it does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required … is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.
In Re Georges and Telstra Corporation Ltd [2009] AATA 731, the Tribunal considered the meaning of ‘reasonable manner’ at paragraph 23:
While the assessment of ‘in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consultation with staff and others, and often as such provide the context within and the context of a particular administrative action.
This approach was endorsed by Robertson J in Martinez. The relevant ‘administrative action’ in relation to application 2015/0749 is the recruitment process conducted by the Agency in 2013 for the APS6 Position. This process involved a number of elements:
(a)the appointment of Agency personnel to the selection panel;
(b)any training that was provided to the selection panel, and whether the selection panel had read ERA 11/04;
(c)any obligation on applicants to provide their current direct supervisor as one of two referees;
(d)any obligation for the Applicant’s then supervisor, Mr A, to then provide a referee’s report prior to the interview process commencing;
(e)the process by which it was decided that Mr A would not provide a referee’s report for the Applicant and two other external applicants;
(f)the process by which an alternative referee was selected;
(g)any contemporaneous note taking that was required of members of the selection panel during the interview, and whether those notes ought to have been retained by the Agency’s Human Resources; and
(h)the manner in which an Applicant was notified that they had been unsuccessful in their application for the position.
The Applicant’s position prior to, and during, the hearing was that particular paragraphs of the Agency’s internal ERA setting out the rules that applied to the selection process had not been complied with (ERA 11/04, attached to Exhibit 11). The Applicant submitted that the Agency’s failure to comply with mandatory provisions in the ERA rendered the process unreasonable such that it was not captured by the exclusionary provision contained in s 5A(1) of the SRC Act.
The Applicant separated the provisions of the ERA into ‘catch-all’ provisions and specific provisions. It was the Applicant’s contention that the Agency had breached both specific provisions and the catchall provisions.
The Respondent contended that the administrative action undertaken by the Agency in relation to the selection process was reasonable action undertaken in a reasonable manner, in light of the Agency’s recruitment and selection policy.
Composition of the selection panel
The Applicant raised a general concern about the composition of the selection panel in an email to the tribunal on 20 April 2015 setting out how he considered the selection process had not complied with the requirements of ERA 11/04 (Exhibit 11). This email identified paragraph 39 of the ERA as relevant. Paragraph 39 states:
The composition of the committee and the committee chair should be approved in principle by the delegate prior to the commencement of the selection process. The committee should be composed of two or three people and should always include the immediate supervisor of the vacant position who will be best placed to advise the requirements of the position. Where possible, the committee should include a gender mix and people from other work units, or external to ITSA to provide a broader perspective.
On the first day of the hearing during his cross examination, the Applicant identified that the composition of the selection panel was an issue. No further evidence was given during the hearing on this issue. I consider that the Agency complied with any obligations it had under paragraph 39 of the ERA by appointing Mr A to the panel.
Training provided to the selection panel
Paragraph 38 of ERA 11/04 states:
The Selection Advisory Committee (‘the committee’) is responsible for conducting a merit based selection process and making a recommendation to the appropriate delegate under the Public Services Act 1999. The committee will:
·Ensure the APS Values are adhered to during the selection process;
·Ensure these guidelines are adhered to during the selection process;
·Fairly and without bias assess applicants and all information received;
·Jointly develop an order of merit based on a comparative assessment of all applicants;
·Put forward a written Selection Advisory Committee report outlining the committee’s recommendations based in this assessment, in addition to any other information or documentation requested by the delegate; and
·Where relevant include in the report any recommendations regarding a commencing salary above the minimum.
Paragraph 43 of the ERA states that:
The delegate is responsible for the selection decision, and the assignment of duties to the successful applicant. The delegate must, having regard to the Public Service Act 1999 and the principles of merit selection:
·Approve the composition of the Selection Advisory Committee and the recruitment process;
·If applicable, decide whether a committee member’s relationship with an applicant renders them unsuitable to participate in the selection process;
·Ensure that the APS values where adhered to throughout the process;
·Ensure that ITSA guidelines on recruitment and selection were followed;
·Decide whether the employment recommendation has been made without patronage or favour; and
·Decide whether to approve the Selection Advisory Committee’s recommendation.
The paragraphs contained in ERA 11/04 do not require that members of a Selection Advisory Committee undergo any specific training prior to participating in the selection process. However, paragraph 38 of the ERA sets out that the committee will ensure APS values are adhered to and to ensure that ‘these guidelines’ (referring to ERA 11/04) are adhered to. This appears to impose an obligation on committee members to, at a minimum, be familiar with the provisions of the ERA and APS values. No further requirements for formal training are articulated in the document.
Ms G was the delegate appointed to oversee the recruitment process for the relevant APS6 position. During cross examination, she gave evidence that she did not recall ERA 11/04 but had seen it in the T Documents. When asked by the Applicant when she became aware of the ERA, Ms G answered that she presumed that she would have known of it but could not recall becoming aware of it. She agreed when the Applicant suggested that the policy, including paragraph 43, appeared to be mandatory. The Applicant asked Ms G to explain the steps that she had undertaken to ensure that the recruitment process had not breached ERA 11/04. She answered that she could not recall. When asked by the Applicant if the Selection Advisory Panel had advised her of any procedural deficiencies, defects or potential issues going to procedural fairness, Ms G answered that she was not aware of any issues.
Later during her cross examination, Ms G was asked by the Applicant:
Do you think that you received adequate training to – to correctly and properly discharge your obligations as delegate in – in the recruitment process we’re discussing, and can you document what that training comprised, or describe?
Ms G answered that she believed that she had been ‘adequately trained to carry out the delegate’s role’ (Transcript, 19 January 2017, at 314). The Applicant later asked Ms G what sort of training would have been provided to her and she answered that the training would have been provided by Human Resources but did not recall when she received the training.
Mr C, who had been a member of the Selection Advisory Committee alongside Mr A and Ms K, was called to give evidence during the hearing. His statement was formally tendered by the Respondent. Mr C was then asked by the Applicant about whether he was familiar with the obligations set out in ERA 11/04 prior to participating in the selection process. Mr C gave evidence that he had ‘scanned’ the ERA to refresh his memory about the process (Transcript, 19 January 2017, at 338). However, he had agreed to participate as a panel member as a favour to Ms G due to his knowledge of the technical aspects of the advertised position. His role on the panel was only to question and assess applicants on the technical side of things and he had more of a back seat role. Mr C’s evidence was that he left the other elements of the recruitment process to the other two panel members, Ms K and Mr A.
Mr A gave evidence during the hearing and was asked by me whether he was aware of ERA 11/04. He answered that he was (Transcript, 19 January 2017, at 366). Mr A was later asked by the Applicant when he became aware of the existence of ERA 11/04 and he answered that ‘it’s difficult to say. I was probably more vaguely aware of it than the detail of it until following this process’ (Transcript, 19 January 2017, at 373). The following exchange then took place:
The Applicant: To what extent where you aware that ERA 11/04 existed to guide recruitment of ongoing employees at the Agency before you commenced the process?
Mr A:Well, I would say I wasn’t – well, perhaps a response might be I weren’t – I wasn’t fully conversant with it.
The Applicant: And then when would you suggest that you became more knowledgeable about the requirements of ERA 11/04?
Mr A: Well, subsequent to the process.
The Applicant: Is there any point that you can identify in thinking back when you felt that you had a good handle on the requirements of 11/04?
Mr A: No.
…
The Applicant: Knowing what you know now about ERA 11/04, do you think it would have been prudent for you to have had a thorough understanding of ERA 11/04 before taking in any material steps in the recruitment process?
Mr A: It wouldn’t have hurt.
Ms J, Director of People and Capability at the Agency, was called by the Applicant to give evidence at the hearing. During her evidence, Ms J noted that, ‘it would not be my preferred option that the panel chair wasn’t aware of the ER’ (Transcript, 23 January 2017, at 396). Ms J was later asked by both the Applicant and myself about what, if any, training was undertaken by staff prior to being appointed to Selection Advisory Committees. Ms J gave evidence that, in her experience in other Commonwealth agencies, the training provided to selection committees varied widely ‘from online learning to having access to policies or formal training’ (Transcript, 23 January 2017, at 403).
At this point it was brought to the attention of both parties and Ms J that I had experience in these processes within the Department of Defence and at that time (prior to 2013), members of selection panels must have passed an online training module in recruitment and selection in the two years prior to participating in a selection process. I then asked Ms J if she was aware of any current training requirements for members of selection committees. She answered that the Agency’s current policy requires selection advisory committee members to have completed an online training module within the last two years. Ms J was unaware if that policy applied in 2013 when the selection process in question took place.
During the hearing, I asked Ms J to ascertain what training was required at the Agency in 2013. Ms J later provided a document to the Tribunal (Exhibit 21), which stated:
From my research there was no mandatory training requirements in 2013 relating to recruitment and selection. Furthermore, there was no established training program in [the Agency] in regard to recruitment and selection.
I conclude that although no formal training was required by Agency personnel prior to participating in a selection advisory committee as a member, all three of the panel members appointed to oversee the recruitment process for the APS6 position (Mr A, Mr C and Ms K) should have been, as a minimum, familiar with the obligations and requirements set out in ERA 11/04 prior to commencing the recruitment process. If the panel members had been familiar with the policies and obligations set out in the ERA, any discrepancies that arose during the recruitment process could have been resolved clearly and efficiently.
The fact that the committee members were not familiar with those obligations would not, of itself, render the process unreasonable administrative action. If it were the case that the Agency had established training requirements for selection advisory committee members and those training requirements had not been satisfied by the members of this particular committee, that would go to the ‘reasonableness’ of the administrative action. Failure to follow Agency or APS policies or guidelines would suggest that the conduct in question could not be considered reasonable. But in the present case, there were no policies or guidelines that committee members should undertake training, and as a result, the failure of Mr A and Mr C to be conversant with the ERA does not render the recruitment process unreasonable.
Obligation to provide current direct supervisor as a referee
Paragraph 69 of ERA 11/04 states:
The current direction supervisor should be included as a referee, as they are in the best position to provide an assessment of recent performance. If the applicant does not nominate their direct supervisor as a referee, it is valid to ask the applicant to explain why. The committee should be satisfied that any referee from whom information is obtained has had opportunity to observe the applicant in job-relevant situations, is competent to evaluate the applicant, and is open and honest.
The following events are clear from the evidence and are not contested between the parties. The Applicant nominated his then direct supervisor, Mr A, to act as a referee in his application for the APS6 position. Mr A was asked to act as a referee by two other internal applicants, including the successful applicant. He agreed to act as referee for all three internal applicants but did not realise that he was required to produce a written referee’s report prior to the deadline, which was before the interview process commenced. The morning before the first interview took place, Ms K informed Mr A that the deadline for providing a written referee’s report had passed. All three internal Applicants were informed during their interviews that they would need to find an alternative referee.
This practice accords with paragraph 62 of ERA 11/04 which states:
Committees should also discuss and agree, prior to commencing the process, the best approach to handling applications from internal applicants where a referee is also a member of the section advisory committee to manage any real or perceived conflict of interest. This could include the committee member not providing a referee report, provision of a report prior to the interviews, and/or seeking information from additional referees.
The Applicant contended the paragraph 69 was mandatory but I conclude that, reading it in conjunction with paragraph 62, it is not mandated that the direct supervisor must provide a referee’s report.
According to the Applicant, after being informed during his interview that he needed to provide an alternative referee, he was given the opportunity to consider who he would nominate. He was then to notify the panel of his new referee.
The Applicant identified his concern that his then direct supervisor, Mr A, had not been a referee in an email sent to Mr A on 8 August 2013 (Exhibit 18). The Applicant’s concerns are further articulated in email correspondence to various Agency personnel (T documents, Exhibit 1).
During her cross examination, Ms G was asked by the Applicant about this issue. The following exchange took place (Transcript, 19 January 2017, at 304):
The Applicant: When you went through the process of confirming that the – that – that it was a fair process conducted in accordance with the guidelines, [the Agency’s] guidelines, were you made aware of any irregularities regarding referees’ reports?
Ms G: As per my statement, I say that [Mr A] did not prepare a referee report for either yourself or one of the other applicants for the position.
…
Ms G: I don’t see that as an irregularity.
Ms G was later asked if she was aware of paragraph 69 of ERA 11/04. She answered that she was. The Applicant then asked:
The Applicant: Before signing off on the appointment, and before – well, having conducted a process to confirm that ERA 11/04 had been complied with, you were satisfied that paragraph 69 had been complied with?
Ms G:What paragraph 69 says is if the applicant does not nominate their direct supervisor as a referee, it is valid to ask the applicant to explain why. Now, as I understand it, you nominated [Mr A] to be your referee, so that part of the paragraph does not apply.
The Applicant: So when – before signing off on the process, you were satisfied that my direct supervisor, in accordance with paragraph 69, was a referee, and that he had done everything required of him as a referee in the required timeframe to – an you had, through the process you undertook to confirm that this guideline had been complied with – you were satisfied that the first sentence of paragraph 69 had been complied with, and there were no issues going to procedural fairness?
Ms G: Well, I – I need time to read this, but there is a timeframe in relation to referee reports, so to read that first sentence by itself I don’t think tells the whole story. The referee report from someone on a selection committee is to be provided in writing prior to the interviews and, as I understand it, that did not occur.
Personal notes
Sometime after the events of August 2013, the Applicant became aware that the personal notes taken by Mr C during the selection process had been destroyed or discarded. The Applicant contended that this constituted a breach of paragraph 36 of the ERA.
During cross examination, Ms G was questioned about paragraph 36. Paragraph 36 of the ERA reads:
Selection reports and other key documentation relating to the selection process should be forwarded to the HR team in Melbourne for placement on the relevant position file, once the selection exercise is complete, the selection decision made, and all applicants notified.
I asked Ms G whether she considered that the failure of Mr C to forward his notes to Human Resources (HR) to be a potential breach of that paragraph. Ms G answered that in her experience on selection panels, she had never forwarded those personal notes to HR. She had used those notes to remind herself of what was said during each interview, and then to either produce a written report or to check and agree with the written report produced by another member of the selection panel. Ms G gave evidence that she understood other members of selection panels used their notes in the same way.
Ms G was then asked by the Applicant if she was aware that two of the selection panel members, Ms K and Mr A, had forwarded their personal notes taken during the interviews to HR to be kept on file. She answered that she was unaware of this. I then asked Ms G if she considered personal notes taken by selection panel members to be ‘other key documentation’ for the purposes of paragraph 36 of the ERA. Ms G answered that she did not.
During his cross examination, I asked Mr C whether he considered the notes taken by a member of the selection panel to be significant and if they should be sent to HR. He answered that he had taken notes during interviews and used these for a short discussion about each candidate after the interview, and then a longer discussion at the end of each day. Mr C gave evidence that he had kept his notes until he believed that they mirrored the notes of the two other selection panel members. He said that he had not realised that there might be any need to keep the notes and he had destroyed them as soon as the delegate (Ms G) had signed off on the process.
I then brought paragraph 36 of the ERA to Mr C’s attention, and asked whether it applied to the personal notes of selection panel members. Mr C gave evidence that he did not consider personal notes to be ‘key documentation’ referred to in paragraph 36. However, Mr C made it clear that he had been asked to join the selection panel on the basis of his technical knowledge of the requirements of the APS6 position. He had very little understanding of the HR aspects of the recruitment process and left that side of things to Ms K who worked in that area.
In consideration of the evidence, I conclude that the personal notes taken by the members of a selection panel do not constitute ‘other key documentation’ for the purposes of paragraph 36 of the ERA. Rather, they are used to produce a report that is then sent to HR to be kept on record. The personal notes made by Ms K and Mr C were kept by HR but not as a result of any requirement to retain them. They had simply been kept. There was no requirement for the notes of Mr A to be retained by HR and the destruction or disposal of those notes does not result in a breach of the ERA.
Considering all of the above I consider that the provisions of ERA 11/04 have not been breached in any manner which would taint the process with unreasonableness.
Furthermore, for the reasons set out above, I find that the recruitment process was reasonable administrative action carried out in a reasonable manner and accordingly the exclusion provision contained in s 5A(1) operates to exclude liability for the Applicant's injury.
IS THE RESPONDENT LIABLE TO PAY COMPENSATION UNDER S 14 OF THE SRC ACT?
The Applicant identified the cause of his injury as a ‘corrupted recruitment and selection process’ and he maintained this position throughout the hearing. The Applicant asserted during the hearing that disappointment at failing to obtain the permanent position was not a causative factor, stating that ‘mere disappointment couldn’t drive a dedicated employee like me for three and a half years to get to the truth’ (Transcript, 18 January 2017, at 207 see especially [30]-[35]).
In its written submissions, the Respondent noted that in the initial workers’ compensation claim dated 31 March 2014, the Applicant had identified the cause of his initial injury as being the Agency’s failure to put in place a RTW program (T3 at 20, Exhibit 1). In a letter dated 21 April 2014, the Applicant again articulated the cause of his injury as ‘the Agency’s failure over the past eight months to implement a return to work plan’ coupled with the absence of an income over that period, and ‘being subjected to behaviour that constitutes serious breaches of the APS Code of Conduct or serious bullying’ (T11 at 64, Exhibit 1). However, the Respondent noted that in his request for reconsideration dated 3 October 2014, the Applicant identified had the ‘direct and sole’ cause of his injury as being ‘major defects’ in the recruitment process carried out by the Agency’s personnel.
Significant discussion took place during the hearing about whether the perceived flaws in the recruitment process could be disentangled from the Applicant’s disappointment at being unsuccessful in his application for the permanent position in terms of causation of the injury. The Applicant consistently submitted that disappointment was not a causative factor in his injury. Rather, he submitted that mere disappointment would not have driven him to pursue his claim for some three and half years and that he was driven by the obligations he felt as an APS employee to ensure that policies and procedures were followed.
A number of medical professionals who gave evidence during the hearing were asked whether they thought that the two above factors could be separated in terms of causation. The witnesses generally answered that the two were intrinsically linked and difficult to separate.
Dr Schutz answered that, while it was difficult to separate the disappointment and the perceived flaws, the primary issue appeared to be that the Applicant had not processed the emotions he felt as a result of his failure to obtain the promotion. That left the Applicant vulnerable and in a state of mind where he was more likely to interpret his employer’s behaviour as hostile or unreasonable and in turn led to a belief that the recruitment process had been flawed. Dr Schutz considered that the Applicant’s ‘concerns about the recruitment process and his disappointment about (not) getting the job were bound together and hard to separate.’
Dr De Saxe gave evidence that it was difficult to separate the causative effects of the failure to obtain the promotion and the perceived flaws in the recruitment process. It was his understanding that the main driver (of the injury) was the failure to obtain the promotion but he could not separate the causative effects of this from the Applicant’s anger about the recruitment process.
I asked Dr Farnbach what he understood to be the principle source or sources of the Applicant’s injury. He replied that, while his role had been to assess the Applicant’s fitness for duty and work capacity, he considered that the ‘whole process was driven by his disappointment in not getting the promotion and the perceived injustices’ (Transcript, 23 January 2017, p 23 at [45]).
During Dr Slaghuis’ evidence, he stated that ‘from the beginning [the Applicant] stated that it wasn’t his disappointment in not getting the job. What he stated was that he felt the process wasn’t adhered to in the selection process.’ (Transcript, 18 January 2017, p 76 at [5]).
The Respondent contended that, despite the inconsistencies in the Applicant’s identification of the cause of the injury, it was contributed to, to a significant degree, by his failure to obtain the permanent APS6 position.
It was then submitted by the Respondent that the principle established by the Full Federal Court in Hart v Comcare (2005) 145 FCR 29 (Hart) would apply. In that case, the Full Court held that where there are multiple causative factors, if any one of those factors falls within the exclusionary provision in s 5A(1) of the SRC Act, the injury is not compensable. So if there are many discrete causes that arose out of, or in the course of, employment, and any one of those causes is excluded, then the entire injury will not be compensable.
The Respondent correctly set out the ratio of Hart. If I am mistaken about the reasonableness of the recruitment process then I should consider whether the Applicant's disappointment upon not obtaining the promotion could have, of itself, given rise to liability on the part of the Respondent.
The medical evidence makes it quite clear that two causative factors of the Applicant’s injury were his concerns about the recruitment process and his disappointment upon not been confirmed in his acting role. The evidence also makes it clear that the two factors were inextricably intertwined and the injury could not be attributed to a single causative factor.
Accordingly, even if the recruitment process was not reasonable, or carried out in a reasonable manner, a significant causative factor was the Applicant’s reaction to not being promoted and hence liability for injury would be excluded by the principles enunciated in Hart.
It therefore follows that the answers to the questions posed at paragraph 59 above are:
3.1.1 Yes
3.1.2 Yes
3.1.3 Yes
3.2 No.
APPLICATION 2015/2623
CLAIM
By a claim form dated 26 October 2014, the Applicant lodged a second claim for compensation with Comcare under the SRC Act (T3 at 18, Exhibit 2).
In completing the form, the Applicant identified the diagnosed condition as ‘reactive anxiety and depression’ and the cause of the injury as the ‘failure by employer to finalise RTW plan. Ongoing bullying and harassment’. He did not indicate when he sustained or first noticed the injury.
On 27 February 2015 a delegate of the Respondent disallowed the Applicant’s claim for compensation (T17 at 170, Exhibit 2). The delegate was not satisfied that the Applicant had sustained a psychological injury which was significantly contributed to by his employment. The delegate further concluded that, had there been such an injury, a claim for compensation would have failed due to the exclusionary provisions of the SRC Act.
The Applicant requested a review of the delegate’s decision on 27 April 2015 (T20 at 197, Exhibit 2). On 23 May 2015, a review officer affirmed the decision of the delegate (T25 at 229, Exhibit 2).
On 26 May 2015, the Applicant lodged an application for review with this tribunal (T1 at 1, Exhibit 2).
ISSUES
As noted above in these reasons, both parties identified the issues to be determined by the Tribunal in their respective written submissions and there was no agreement on the relevant issues prior to the hearing. The Respondent described the issues relevant to application 2015/2623 as:
Application 2015/2623
3.3Has the Applicant suffered an injury, which includes a disease, as defined under subsection 5A(1) of the SRC Act? This requires consideration of the following three issues:
3.3.1Does the Applicant suffer from an ailment as defined in section 4 of the SRC Act or an aggravation of such an ailment?
3.3.2If so, has the ailment or aggravation of such an ailment been significantly contributed to by the Applicant’s employment, so as to meet the definition of ‘disease’ under subsection 5B(1)?
3.3.3Does the exclusionary provision in subsection 5A(1) exclude liability for the Applicant’s claimed condition?
3.4Is the Respondent liable to pay compensation under section 14 of the SRC Act?
With respect to application 2015/2623, the Applicant identified the issues as follows:
(a)The Applicant’s treating clinicians have indicated that Comcare’s rejection of the injury claim has been made ‘…with complete disregard of the recommendation made by professional clinicians who assessed [the Applicant] and who have provided [the Applicant] with treatment.’
Has Comcare dealt with the medical evidence appropriately when determining this injury claim?
(b)Comcare has ignore the medical evidence obtained specifically in respect of this injury; and/or confused the medical evidence obtained in respect of a prior, unrelated injury. Why?
(c)Comcare appears not to have properly administered the injury claim, in accordance with its stated policies and practices. Why?
I consider the issues as stated by the Respondent to be correctly stated and consider that there is no prejudice to the Applicant by using them as the basis for resolution of this application.
HISTORY: CLAIM 2015/2623
The relevant general background to both applications is set out at paragraphs 1-6 of these reasons. As noted there, application 2015/2623 claims compensation for an aggravation of an existing injury (namely the injury claimed in application 2015/0749) arising from the employer’s failure to finalise an appropriate RTW plan.
Dr Gregor’s clinical notes dated 3 October 2013 record that he had a telephone conversation with Mr L, Human Resources Manager for the Agency (T9.1 at 67, Exhibit 2):
Telephone Consultation – [Mr L] – Rehab provider wants to develop RTW programme.
On 4 November 2013, Dr Gregor wrote to Mr Lin response to a request to provide medical information (T14.3 at 127, Exhibit 2). Dr Gregor stated that he had first seen the Applicant in relation to his current problems on 8 August 2013 and that he was ‘stressed and felt unable to return to work’ after he was ‘passed over for promotion to a deserved appointment in his workplace’. Dr Gregor reported that the Applicant has had difficulty facing a return to work since and he recommended discussions between the Applicant and the Agency to negotiate a mutually agreeable solution.
On 3 December 2013, Dr Tschirn provided a fitness for duty report to the Agency at its request (T14.3 at 149, Exhibit 1). Dr Tschirn indicated that a graduated return to work program would be appropriate once the Applicant had ‘reconcile[d] his own emotions first and in a word be prepared to accept the umpires [sic] decision’. He recommended that a graduated RTW plan be put in place sometime in the next three months.
On 14 March 2014, Dr De Saxe examined the Applicant and provided a fitness for duty report dated 17 March 2014 (T14.3 at 238, Exhibit 1). The Applicant was diagnosed with ‘Adjustment Disorder with Anxious Mood’. Dr De Saxe was not aware of any factors other than the failure to obtain a promotion which contributed to the Applicant’s condition. He concluded that the Applicant did not have the current capacity to undertake normal duties on a part time basis until he commences psychotherapy with a psychologist. Dr De Saxe considered that there would be a benefit from a gradual return to work.
On 12 May 2014, Dr Schutz examined the Applicant and provided a report dated 26 May 2016 to assist with the determination of the Applicant’s first claim (T19 at 418, Exhibit 1). The Applicant was diagnosed with ‘adjustment disorder with mixed disturbance of emotion and conduct.’ Dr Schutz was of the view that the Applicant’s condition had not resolved and that there were other employment factors beyond the failure to obtain a permanent position to which he felt entitled.
The Applicant submitted a claim for workers’ compensation dated 26 October 2014 in respect of ‘reactive anxiety and depression’ (T3 at 18, Exhibit 2). He claimed that his psychological condition arose as a result of bullying and harassment, and the failure of the Agency to implement a RTW plan. The Applicant did not nominate a date of injury.
Dr Gregor provided a report dated 10 November 2014 advising that he first saw the Applicant for work-related issues on 8 August 2013 and that the Applicant had been unable to return to work since then (T9 at 57, Exhibit 2). The Applicant had advised Dr Gregor that he had been unsuccessful in securing a promotion and was never provided with a sufficient explanation of the outcome of the process. He also told Dr Gregor that he had not been afforded the opportunity to appeal the decision. Dr Gregor stated that a series of administrative missteps by the staff handling this case had aggravated matters. He further stated that the ongoing non-resolution of the original complaint, lack of an effective RTW plan over many months and lack of income throughout had effectively been a trauma in itself, resulting in a reactive depressive illness.
Dr Gregor diagnosed the Applicant with ‘severe Reactive Anxiety/Depression Disorder and associated Adjustment Disorder’ and identified its cause as being the circumstances of August 2013 and the failure to put in place an appropriate RTW plan. Dr Gregor stated that the Applicant’s condition had been worsened by the apparent mishandling of his case by the Agency since then.
In November 2014, the Agency engaged Ms M from the Human Dimension Consultancy, a rehabilitation provider, to conduct an initial assessment to be used in developing a rehabilitation and RTW programme (T10 at 69, Exhibit 2).
Dr Slaghuis produced a medical report dated 10 December 2014 (T12 at 72, Exhibit 2). He advised that the Applicant first attended his practice on 19 May 2014 and reported that he had applied for a higher level position which was awarded to another applicant. The Applicant acknowledged that the Agency had the right to appoint the best candidate and explained that his concerns related to the management of the selection process, which he considered to be flawed. Further, the Applicant advised that he had lodged a new claim in response to an ongoing and unresolved dispute with the Agency in relation to a RTW. Dr Slaghuis diagnosed the Applicant with ‘Adjustment Disorder with Anxiety’ and considered that his present symptomatology was entirely related to the unresolved and ongoing dispute with the Agency. As Dr Slaghuis did not see the Applicant until May 2014, he was unable to comment on the Applicant’s symptomatology as at 8 August 2013. Dr Slaguis anticipated that the Applicant would be able to engage in employment following the resolution of the dispute with the Agency.
On 19 December 2014, the Agency provided the Respondent with a statement in response to the Applicant’s claim for workers’ compensation along with various documents relevant to the claim (T14 – T14.17 starting at 102, Exhibit 2).
By determination dated 27 February 2015, the Respondent denied liability for the Applicant’s claim under s 14 of the SRC Act (T17 at 170, Exhibit 2). It was not satisfied that the Applicant suffered from an ‘ailment’ as defined in the SRC Act as the medical evidence indicated that the condition had been ongoing since August 2013 and there was no evidence that a new injury or an aggravation had been suffered. Alternatively, if the Applicant was suffering from an ailment that was significantly contributed to by his employment, the Respondent determined that the Applicant’s claim was excluded by the operation of s 5A as the Agency’s actions relating to the RTW process were reasonable administrative actions taken in a reasonable manner.
Dr Gregor provided a letter dated 12 March 2015 to the Respondent after having reviewed the Applicant (T20.1 at 198, Exhibit 2). He diagnosed the Applicant with ‘Adjustment Disorder’ and advised that the condition was a result of the Agency’s mishandling of the Applicant’s original work related problems and its failure to provide a RTW plan in a timely manner. He also advised that the Applicant was happy to trial a return to previous high duties and this should be expedited as soon as possible. Dr Gregor’s prognosis at that time was that the Applicant’s condition was worsening and a rehabilitation program should be addressed as a matter of urgency.
On 31 March 2015, Dr Slaghuis prepared a report for the Applicant’s income protection insurer at its request (T20.2 at 199, Exhibit 2). He reported that the Applicant continued to suffer from severe reactive anxiety and stress with multiple somatic symptoms such as insomnia, feelings of panic and chronic fatigue as well as mild depression. He diagnosed the Applicant with ‘Adjustment Disorder with Anxiety’. Dr Slaghuis stated that the Applicant’s symptoms were entirely attributable to the unresolved dispute with the Agency beginning on 8 August 2013. The Applicant had reported that over time he became aware that the selection process was substantially flawed. Dr Slaghuis considered that this was the first causative factor, the second being the Agency’s delay in organising the RTW plan.
Dr Slaghuis noted that at an appointment on 24 March 2015, the Applicant’s rehabilitation officer Ms M attended and the Applicant agreed to a trial RTW performing his previous duties.
On 27 April 2015, the Applicant made a request to the Respondent seeking review of the determination of 27 February 2015.
On 7 May 2015, Dr Farnbach, consultant psychiatrist, provided a fitness for duty report for the Agency (Document 1, Exhibit 3) and diagnosed the Applicant as follows:
adjustment disorder with anxious (and probably depressed) mood as a result of his perception (rightly or wrongly) that the department has not appropriately handled his application for promotion and not handled his rehabilitation or return to work appropriately.
Dr Farnbach commented that the Applicant’s condition was greatly exacerbated by his preoccupation with his ongoing dispute with his employer. He further commented that it was very clear that the Applicant’s prolonged absence from work was fostering preoccupation with ruminations about his situation, which exacerbated and perpetuated his symptomatology. The report recommended that a RTW plan be put in place as soon as possible.
On 15 May 2015, the Agency provided the Applicant with a further statement in response to his request for reconsideration (T23 at 220, Exhibit 2).
The reviewable decision dated 23 May 2015 affirmed the determination dated 26 February 2015. The review officer was not satisfied the Applicant was suffering from an ‘ailment’ for the purposes of the SRC Act and found that should he in fact be suffering from an ‘ailment’, the claim would be excluded on the basis of reasonable administrative action taken in a reasonable manner (T25, Exhibit 2).
On 24 June 2015, Dr Farnbach provided a supplementary report regarding the proposed RTW plan which aimed to return the Applicant to full-time work over a period of three months (Document 2, Exhibit 3). Dr Farnbach consulted Dr Gregor and Dr Slaghuis and noted that both viewed the plan as appropriate. Dr Farnbach considered that the proposed RTW plan was appropriate and that the Applicant was fit to participate in this plan.
The Applicant commenced a RTW on 19 October 2015, working two hours per day for two days each week (Documents 5 -11, Exhibit 3).
On 11 January 2016, Dr Farnbach provided the Agency with a further fitness for duty Report (Document 3, Exhibit 3). He reported that the Applicant ‘presents with a picture that is essentially identical to the one that he presented with in May.’ Dr Farnbach maintained his diagnosis of ‘adjustment disorder with predominantly anxious mood’ as a result of the Applicant’s perception that the Agency did not appropriately handle his application for promotion and his return to work. He considered that the Applicant’s continued preoccupation with his situation perpetuated his symptomatology and greatly reduced his work capacity.
Dr Farnbach noted that an attempt at a graduated RTW had been unsuccessful and had not altered the Applicant’s symptomatology or capacity to work in any way. He reported that the Applicant was very fixed in his view that he was unable to increase his hours and this appeared to be because of the various outstanding legal issues. Dr Farnbach considered that it was likely that a continued attempt at rehabilitation would exacerbate the Applicant’s disability due to the mismatch between the Applicant’s and the Agency’s expectations of a graduated RTW plan.
Dr Farnbach consulted Ms M and Dr Gregor. Both were of the view that the Applicant was not able to return to work at the Agency given his preoccupation with his situation. Dr Farnbach agreed with this and suggested that attempts be made to find the Applicant appropriate work outside the Agency.
On 28 January 2016, the Agency advised the Applicant that he would be placed on personal leave without pay (Document 4, Exhibit 3). He returned to work on a limited basis towards the end of the hearing.
CONSIDERATION – APPLICATION 2015/2623
Does the Applicant suffer from an ailment within the meaning of s 4 of the SRC Act?
There is no dispute that the Applicant suffers from an ailment within the meaning of s 4 of the SRC Act. The Respondent contends that the injury, the subject of this application, is the same injury dealt with in application 2015/0749.
As I understand it, the Applicant contends that the Respondent's failure to initiate an appropriate RTW program aggravated the pre-existing injury to such an extent that it comes within the provisions of s 5A(1)(c) of the SRC Act.
To fall within this provision, the alleged failure of the Respondent would need to give rise to a permanent, or even temporary, aggravation of the original injury. The Tribunal considered the legislative boundaries of ‘aggravation’ in McKinnon and Australian Postal Corporation [2001] AATA 297 at paragraphs 71 & 76 and determined:
71. On any view of the medical evidence it is clear that the riding of the bike caused the applicant pain and discomfort from time to time and it follows that he suffered injury on those occasions. The next question is as to whether those injuries, or any of them, had temporary or permanent consequences for the applicant. Did the riding of the work motor bike on any occasion, or cumulatively, bring about any permanent symptoms or future permanent susceptibility to symptoms? …
…
76. … … The Tribunal finds that from time to time the applicant suffered back pain and/or discomfort (including pain down his left leg) as a consequence of riding his work motor bike. The Tribunal further finds that these abovementioned symptoms came about as a consequence of this bike riding, temporarily aggravating the applicant’s back condition. This temporary aggravation, wherever it occurred, would have lasted minutes, hours, days, weeks, but no more than 1 or 2 months. It may be more appropriate to use the term ‘irritation’ than ‘aggravation’ … What clearly emerges from this evidence is that there was no permanent worsening of the applicant’s back condition because of his riding of a work motor bike and the Tribunal so finds. …
[Emphasis added]
All the medical practitioners that dealt with the issue opined that the Applicant suffered an ongoing injury as a result of the events of August 2013 and the failure to implement an appropriate RTW (see the reports previously referred in this decision, including the reports of Dr Gregor (see paragraphs 146-7 and 152 above), Dr Slaghuis (see paragraphs 153-4 above) and Dr Farnbach (see paragraphs 156 and 161-3 above).
It appears that no medical practitioner was able to disentangle any ‘aggravation’ from the original injury and I find that the Applicant has suffered no new injury that could be the subject of a separate claim. Set out below is a consideration of the other necessary elements required by the Applicant’s claim if I am found to be mistaken in my above-mentioned finding.
Has the Applicant’s ailment been significantly contributed to by the Applicant’s employment, so as to meet the definition of ‘disease’ under s 5B(1) of the Act?
I do not understand the Respondent to contend that the Applicant's employment has not significant contributed to whatever ailment, or ailments, the Applicant is suffering. In any event, I consider it quite clear that the Applicant's employment has significantly contributed to his ailment(s).
Does the exclusionary provision in s 5A(1) exclude liability for the Applicant’s claimed condition?
Even if the injury the subject of this application is a new injury rather than the pre-existing one dealt with earlier in this decision, the question of reasonable administrative action carried out in a reasonable manner once again arises. In other words, does the exclusionary provision in s 5A(1) exclude liability for the applicant’s claim condition.
At both T14.2 (Exhibit 1) and T14.1 (Exhibit 2) is a chronology entitled ‘[the Agency] Return to work chronology’. There are approximately 105 entries spanning the period from 8 August 2013 until 27 October 2014. These deal with matters relevant to the management of the Applicant including medical certificates, applications for leave, proposed return to work requirements and correspondence with medical practitioners.
The entries are supported by voluminous documentary evidence contained in Exhibit 5 and I do not intend to set out the entries in any detail although I note some relevant examples as follows:
2-Oct-13 [Mr L] makes contact with [the Applicant’s] treating general practitioner, Dr Gregor, to discuss the development of a graduated return to work plan for [the Applicant] 11-Oct-13 [Mr L] informs [the Applicant] that he has been in contact with Dr Gregor and awaiting fitness for duty report before progressing [the Applicant’s] return to work plan. [Mr L] states that if [the Applicant] feels he can return to work prior to or irrespective of this report he would encourage him to do so 14-Oct-13 [The Applicant] writes [Mr L] a letter which includes – ‘It is of serious concern therefore, that you are pressuring me to return to work before such time as Dr Gregor’s medical report (of which I had no knowledge) is issued. That is, I fail to see how it is reasonable (or even responsible) to actively encourage an employee back to work until the medical considerations have been addressed – in this case, by way of Dr Gregor’s pending report. Similarly, to ‘encourage’ an employee back to work ‘irrespective of this report; as you put it (final para of your seconde e-mail on Friday) is disturbing and appears to demonstrate a lack of faith in an established process designed to deal with circumstances such as these. Further, it is of serious concern that, having neglected to advise me that you had instructed a report from Dr Gregor a week prior, you requested that I obtain ongoing medical certification (as per your first e-mail). Would not a reasonable person be pleased to await the medical report? Is not the mere fact that you have instructed a medical report from my GP evidence enough of grounds upon which a safe and happy return to work may not be possible on Monday? Why the need to keep hidden from me the fact that a medical report had been requested from my GP? The perception is now, perhaps, that it was your intention to keep your instructions for a medical report quiet for a bit longer in the hope that I would return to work independently on Monday, irrespective of any possible medical concerns. I hope this is not the case, but I can’t be sure on the evidence before me.’ 30-Oct-13 [Mr N] confirms that a fitness for duty assessment has been organised for 21 November 2013. Confirms that [the Agency] is yet to receive Dr Gregor’s report. [Mr N] states that there will be merit meeting with [the Applicant] to enable [Mr N] to gain a greater understanding of the situation, his ongoing health issues and a way forward in terms of any consultation process. 30-Oct-13 [The Applicant] declines the meeting. Prefers the meeting takes place after any report from the FFD assessment has been received and considered. 29-Nov-13 [Ms E] invites [the Applicant] to a meeting to resolve the issues he has raised. 3-Dec-13 [The Applicant] declines the meeting with [Ms E]. Asks that she be patient and await the medical reports, which [the Applicant] believes would be unwise to pre-empt. 11-Dec-13 [Ms E] writes to [the Applicant] advising him that there is no medical reason referred to in those reports not to progress the resolution of [the Applicant’s] workplace grievances as soon as possible. That [the Applicant’s] treating general practitioner had suggested minuted discussion with [the Agency] to negotiate a mutually agreeable resolutions [sic] to the situation and that [the Applicant’s] return to the workplace would not be assisted by the ‘current situation’ enduring. Invites [the Applicant] to a meeting on the 17 December 2013. 22-Jan-14 [Ms E] invites [the Applicant] to a meeting now that he was had [sic] a chance to review both medical reports and in compliance the GP recommendation to have minuted discussions. Notes that current medical certificate expires on 31 January 2013. Meeting proposed for 3 February 2014. 29-Jan-14 [The Applicant] lists his meeting prerequisites (email access and remuneration arrangements for ‘getting up-to-date’ with staff notices, circulars and memos) and asks what arrangements are in place to facilitate his return to work on the basis that [the Agency] has had the medical reports for 2 months. 30-Jan-14 In the absence of [Ms E], [Ms H] provides [the Applicant] with PD for case manager and states he will return to his substantive classification, that [the Agency] acknowledges that employees returning to work may need support from their employer and that further details will be addressed in the meeting and that if he is fit for work and he attends the planned meeting on 3 Feb 2013 then he will be back be paid [sic] on that basis. 2-Feb-14 [The Applicant] sets out his concerns about returning to work and provides a medical certificates dated 28 Jan 2014, for the period from 31 Jan 2014 till [sic] 28 February 2014. 28-Feb-14 [The Applicant] attends the fitness for duty medical appointment with Dr Sheehan. Appointment abandoned as [the Applicant] was not allowed to take notes and because of the manner in which his support person was treated. 28-Feb-14 [The Agency] directed [the Applicant] not to attend work on 3 March 2014 on the basis that [the Agency] could not be satisfied that he was fit for duty. A medical appointment with consultant psychiatrist, Dr de Saxe was organised for 14 March 2014 and paid discretionary leave was approved until the 14 March 2014. 14-Mar-14 Consultant psychiatrist, Dr de Saxe, provided his opinion, by phone to [the Agency], that the [the Applicant] [sic] was unfit for work until such time as he attended psychotherapy. Paid discretionary leave was not extended beyond 14 March 2014. 18-Mar-14 [The Applicant] indicates that he has “no alternative but to resume full-time work tomorrow” because he cannot afford to be “prevented from earning an income” and that he requires return to work arrangements “prior to close of business today, in preparation for [his] return-to-work tomorrow”. His email also raises other complaints and concerns generally. [Ms H] responds to his email. 18-Mar-14 [Ms H] further explains the reason why [the Agency] must direct [the Applicant] not to attend work, the impact of Dr de Saxe’s assessment and that [the Agency] would treat his email dated 17 march at 5.18pm as a request for review of the decision not to grant him further paid leave. 11-Apr-14 [Ms H] responds to [the Applicant] letter of 7 April 2014 indicating that all relevant documents will be provided to Mr Slaghius ([the Applicant’s] nominated psychologist), explaining why reports were sought from Dr Gregor (treating General Practitioner), Dr Tschirn (consultant occupational physician) and Dr de Saxe (consultant psychiatrist). [The Agency] indicates it can finalise the RTW plan without Dr Gregor’s input as it can rely on Dr de Saxe’s report. [The Agency] also provides [the Applicant] with the details of the WH&S officer should he wish to pursue bullying allegations formally. 12-May-14 [Ms H] responds to [the Applicant’s] letter of 14 April 2014 and emails of 15 April, 23 April, and 30 April 2014. [Ms H] reiterated the view (based on Dr de Saxe’s report and medical certificates in place) that [the Applicant] is ‘unfit to return to work unless (he) undergo counselling as part of the implementation of a return to work plan.’ The letter also responds to other misinterpretation including [the Applicant’s] comments regarding working from home arrangements. [Ms H] also states that ‘[the Agency] would receive greater assistance from any medical view expressed by ([the Applicant’s]) general practitioner if it was expressed following a discussion with Dr De Saxe regarding ([the Applicant’s]) diagnosed condition.’ 15-May-14 [Ms H] responds to [the Applicant’s] correspondence dated 15 May 2014, stating that comprehensive reasons for refusing to grant paid miscellaneous discretionary leave were set out in a six page letter sent to [the Applicant]on the 9 April 2014 by [M F] 20 May 2014 Complaint by [the Applicant] against [Ms H] that her behaviour constitutes bullying and harassment. 22 May 2014 Dr Gregor sends [Ms H] a fax in response to RTW plan sent on the 25 March 2014 (asking for feedback by the 15 April 2014). Dr Gregor suggests ‘that any RTW scheme should be first approved by his treating Clinical Psychologist, Mr Walter Slaghuis, who has just recently commenced treatment’. Dr Gregor notes that he would also ‘appreciate discussing any such RTW scheme in a face to face appointment with [the Applicant] and a Rehabilitation Provider who has been charged with supervising the plan, as would happen with a Workcover case.’ 4-Jul-14 [Ms E] writes to Dr Slaghuis to ask if he can provide [the Agency] with his view about whether [the Applicant] will be fit to return to work (on a graduated basis as set out in the return to work plan), commencing 15 July 2014 for two days that week, four hours per day. 14-Jul-14 [The Applicant] provides [the Agency] a medical certificate certifying him unfit to work from 14 July 14 to 11 Aug 14. 8-Aug-14 [The Applicant] provides a medical certificate certifying him incapacitated for any work from 11 Aug 14 to 15 Sep 14. 18-Sep-14 [The Applicant] provides a medical certificate certifying him incapacitated for any work from 15 Sep 14 to 23 Oct 14. 27-Oct-14 [The Applicant] submits Workers compensation claim (now referred to 1209222/2). Also provides a medical certificate certifying him incapacitated for any work from 22 Oct 14 to 26 Nov 14.
In my view, the actions set out in the above table, and the matters set out at paragraphs 139 to 164 above, demonstrate that the Respondent went to considerable effort to set in place an appropriate RTW program but were constrained both by the demands of the applicant and medical advice noting pre requirements before such a program could be undertaken.
I am satisfied that the Respondent carried out reasonable administrative actions in a reasonable manner in their attempts to provide appropriate RTW arrangements for the Applicant.
It therefore follows that the answer to the questions posed at paragraph 136 above are:
3.3.1. No
3.3.2. Yes
3.3.3. Yes
3.4. No
Accordingly, both decisions under review are affirmed.
I note that pseudonyms have been used as a consequence of a confidentiality order made pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 178 (one hundred and seventy -eight) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO RFD SC, Deputy President
.....................................................................
Associate
Dated: 30 October 2017
Date(s) of hearing: 16-19, 23, 25 & 27 January 2017
27-28 March 2017Date final submissions received: 28 March 2017 Applicant: In person Counsel for the Respondent: Craig Hobbs Solicitors for the Respondent: Carmen Basilicata, Comcare
Sarah Florendo, Comcare
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