Shamia and Telstra Corporation Ltd - [2000] AATA 854

DECISION AND REASONS FOR DECISION [2000] AATA 854

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N99/147
GENERAL ADMINISTRATIVE   DIVISION)
           Re      MONA SHAMIA

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date:26 September 2000
Place:Sydney

Decision The reviewable decision dated 17 December 1998 is set aside. The determination dated 7 September 1998 is varied to now provide that the applicant's employment by the respondent contributed to her disease, adjustment disorder/anxiety in a material degree for which she first sought medical treatment on 3 April 1998. She is entitled to be paid compensation in respect of incapacity as a result of her injury and her reasonable medical expenses from 3 April 1998 until 29 July 1998 but not thereafter. Liberty to apply is reserved should there be a dispute with respect to medical expenses and any cost of the proceedings the applicant may contend she has with respect to the application.

(sgd) H.E. Hallowes
Senior Member
COMPENSATION — adjustment disorder/anxiety — work error — unaware that work performance considered unsatisfactory — incapacity — whether reasonable disciplinary action — whether failure to obtain a benefit — whether in the course of employment — effect of applicant's underlying personality
Safety, Rehabilitation and Compensation Act 1988 ss.4, 16, 19

Federal Broom Company Pty Ltd v Semlitch (1994) 110 CLR 626
Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall
(1992) 109 ALR 361

REASONS FOR DECISION

26 September 2000 Mrs H.E. Hallowes, Senior Member

Ms Shamia seeks review of a reviewable decision made for the respondent by an officer of GIO Australia on 17 December 1998, the respondent's workers' compensation insurer. The officer affirmed a determination made on 7 September 1998 denying that the respondent was liable to pay Ms Shamia compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of "anxiety disorder, stress". Ms Shamia contends that her disease was contributed to in a material degree by her employment and that she is entitled to compensation in respect of incapacity under section 19 of the Act and her reasonable medical expenses under section 16 of the Act.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with material lodged by both parties at the hearing. Ms Shamia was represented at the hearing by her son, Mr J. Shamia, chartered accountant and the Tribunal is satisfied that he also assisted her with the preparation of a number of documents. The respondent was represented by Mr G. Hickey, of counsel.
The document indexed as T3 of the T documents is a Health and Safety Incident Notification form which states that an incident occurred on 27 March 1998 when Ms Shamia was on duty. The risk indicator suggested that only medical costs would be involved. Ms Shamia's supervisor, Mr D. Chand, the respondent's manager, Infrastructure Project Team, now employed by Network Design and Construction Ltd ("NDC") which undertakes the same duties previously undertaken by the respondent which have been contracted out, was notified on 3 April 1998 and he signed the form on 4 May 1998, the day on which Ms Shamia lodged a medical certificate which she had obtained on 3 April. The next document amongst the T documents is a claim form, completed by Ms Shamia and signed by her on 2 June 1998, in which she advised that the diagnosis of her condition was "anxiety disorder stress treated unfairly by managent [sic]". She advised that the injury had occurred on 27 March 1998 and that she first had medical treatment with respect to her illness on 3 April 1998 from Dr M. Attia, general practitioner. This document appears to have been lodged with the respondent's workers' compensation section on 15 July 1998. If this was the date that the document was lodged, the index to the documents is misleading in that it records a date of 27 March 1998 with respect to the claim.
Ms Shamia commenced employment with the respondent in 1979.   At the relevant time she was employed as an acting AO4 projects officer, Vendor Services NDC.   When lodging her claim form Ms Shamia provided a description of the sequence of events leading to her "current illness".   She advised that on 26 March 1998 she had inadvertently sent an e-mail containing material forecasts to a wrong vendor.   She realised her error after leaving work and, although she intended to take a flex day on the following day, Friday, she attended work and advised Mr Chand what had happened.   She went on to state:
. . . He refused to accept my apology and began to berate me, accusing me of incompetence, and saying I was unfit for the position I was acting in.   I was also accused of leaving work on the Thursday afternoon without permission – This was untrue as had written my flex leave on the notice board.   I had made a number of attempts to tell the manager, but he was always busy with other people in his office.   Carol Nigro had noticed that I had been trying to see the manager, and knowing I was already late for my appointment told me to go and see [sic] would inform him when he was free.   I was then threatened with possible legal action if the vendor complained, possible dismissal, and demotion back to my appointed level of AO 3 and summary transfer to another section in disgrace.   I was told to return to my desk and he would send me a formal letter of reprimand.
I did not receive the letter for some days.   Being left in a state of extreme nervousness for that period, and not knowing what my fat would be.   The letter not only contained a reprimand for my error, but included a long list of complaints that had not been mentioned to me before.   Some of the complaints were of a petty nature, and I felt entirely unwarranted.   The whole tone of the letter was highly critical of me and had the effect of demeaning and demoralising me.   In fact I considered his approach to the situation was totally unprofessional, biased and unfair.   I was even more upset to find he had approached the Regional manager and personnel manager insisting on my immediate demotion and removal from the position.
. . .

In lodging her application for review with this Tribunal, Ms Shamia contended that her anxiety disorder and stress resulted from "unreasonable disciplinary action".

Dr Attia's medical certificate, which Ms Shamia had provided on 4 May 1998 advised that he had examined Ms Shamia on 3 April 1998 and diagnosed "Adjustment disorder/Anxiety". The cause of injury was stated by Ms Shamia as being "treated unfairly by management". Deptron was prescribed, Ms Shamia being fit to resume her pre-injury duties on that day. Dr Attia provided a further medical certificate on 1 May 1998, stating that Ms Shamia was unfit for work on that day. The certificate was provided to the respondent on 9 June 1998. A later medical certificate by Dr Attia certifies Ms Shamia as being unfit for work from 23 July 1998 to 28 July 1998, with a review to be held the following day. Dr Attia provided further medical certificates stating that Ms Shamia was unfit for work from 30 July 1998 to 28 August 1998 and 28 August 1998 to 2 October 1998. Ms Shamia's leave records disclose that on 23 July 1998 she took sick leave until 28 July and again from 28 August until 14 September 1998.
On 27 July 1998 Informed Reports, a firm of investigators employed by the respondent's insurer, provided a report on their investigation into Ms Shamia's "Anxiety disorder".   An officer of Informed Reports had apparently interviewed Ms Shamia, as well as Mr G. Lane, regional general manager NDC; Mr P. Bennett, manager of the respondent's Design Branch, Mr M. Rawle, section manager NDC, Mr L. Ross, lines support manager with the respondent's Design Branch, Mr T. Jeffery, NDC senior project officer; and Mr B. Shah, project officer with NDC.   The report of Informed Reports dated 24 July 1998 states that Mr Shah was Ms Shamia's "functional supervisor".   Paragraphs 41 and 42 of the report state:
41We did have a brief discussion with Mr Chand, in attempting to organise a meeting with him.   As things transpired, we did not get the opportunity to formally interview Mr Chand.   We left numerous messages, but failed to hear back from him.
42Mr Chand commenced a 7-week holiday during the course of our inquiry.   We would like to have met with Mr Chand, however his apparently hectic timetable prior to his leave did not allow this.   Nevertheless, it appears the contents of his correspondence spell out his thoughts on the matter.

Some attempt was made to interview other officers. Ms T. Saad, an administrative officer grade 2 with NDC, had noticed that Ms Shamia had "been crying and was distressed on 27 March 1998". A further report dated 22 May 1999 was received by the insurer from Informed Reports, who had recently interviewed Mr Chand and Mr L. Wilson, manager, Human Resources, NDC.

The report from Informed Reports is particularly relevant to the determination of one of the issues in this matter in that Ms Shamia told the Tribunal that, when a copy of the report was provided to her on 29 July 1998, it contributed to her state of anxiety disorder and stress. Ms Shamia was provided with a copy of the report following a request by her son to GIO Australia on 28 July 1998 that the report be made available. It became apparent at the hearing that Mr M. Simpson was the person who was responsible for compiling the report.
The report from Informed Reports records that Ms Shamia stated she became distressed on 26 March 1998 when she realised her error with respect to sending the e-mail to the incorrect address.   She contacted Mr Jeffery by telephone, and sought his advice.   She was unable to sleep that night, feeling anxious and upset.   On arriving at work the next day (27 March) she approached her supervisor, Mr Shah. Ms Shamia stated that she was advised that she had made a "big mistake".   Her statement in the report is similar to the evidence that she gave before the Tribunal with respect to events which occurred in March.   When she saw Mr Chand later on 27 March he berated her and he refused to accept her apology.   He raised the possibility that she would be fined or gaoled and that she would be demoted and transferred to another area in disgrace.   She was advised to expect a formal reprimand in writing.   The documents include a copy of an internal memorandum, sent to Ms Shamia by Mr Chand on 1 April 1998.   This is apparently the letter Ms Shamia was advised she would receive from Mr Chand on 27 March.   Mr Chand advised Ms Shamia, amongst other things:
. . .
You joined my project team in October 1997 as the Projects Officer Vendor Services and have had 5 months experience in the position.   Your performance in the position to-date has been far from satisfactory.   During my absence from duty, both Bhavesh Shah and Tony Jeffery explained to you the requirements of the position over a period of time and you had appeared to fully understood the same.   They emphasised that all correspondence with the vendors must be vetted by them.
Upon my resumption of duty in January 1998, I was able to spend as much time as possible emphasising the importance of the position and the need to exercise the greatest of care as we are dealing with major vendors under Product Sourcing Agreements which have legal implications and subject to severe penalties for any breach.
I also explained that the position holder was the image of Telstra through NDC to the major equipment suppliers in so far as timely and accurate 2+2 month material forecasting and Monthly Order Management was concerned including selection and issue of VPES Service Orders and that all documents must be cleared before release.
Regarding the 2 major vendors for the supply of switching equipment to Telstra, I emphasised that the confidentiality of the information must be preserved at all times.   I also stressed that under no circumstances should any information relating to one vendor become available to another either by word of mouth or in writing wittingly or unwittingly.
. . .
On another matter, in February this year, I had requested you to prepare all outstanding remedy claims against . . . [the name of one of the major equipment suppliers] since August 1997.   The initial claim you had prepared had placed Telstra in a rather embarrassing position as the dates of material delivery or either the invoice amounts were incorrectly stated.   To make matters worse, there were numerous typographical errors in the claim forms.   It took you 5 attempts with repetitive and direct instructions from me to produce a claim that is ready to be lodged with the vendor seeking damages.
I consider your performance in the role as unsuitable for the demands placed on the position as you have not been able to fully discharge the duties of the position satisfactorily.   During the past 5 months, your understanding of the position leaves a lot to be desired as you continue to be careless and make repetitive mistakes in documents which may be used as evidence in a court of law in the event of a dispute with the vendors.
Neither myself, Bhavesh Shah nor Tony Jeffery can continue to provide you with the current level of support and supervision in discharging your duties.
I therefore regret that I have no option but to request that you be placed into another position within Network Design & Construction NSW on your nominal salary at AO3 grade.
. . .   .

Ms Shamia advised the officer of Informed Reports that the minute of 1 April 1998 included complaints which Mr Chand had never raised with her before. She was upset by the instruction that other members of the team should not give her any further assistance. She was upset by the decision to move her out of the group. It was most unfair because "it did not provide me with the opportunity to give my side of the story at the time". She therefore consulted Dr Attia on 3 April 1998. She advised Dr Attia that she had lost weight; that she was having difficulty sleeping and that she was embarrassed and humiliated because other people were made aware of the incident of 26 March 1998. She had experienced a choking sensation in her throat which was to be medically investigated.

On 9 April 1998 Ms Shamia responded to Mr Chand's minute, sending copies of her response to Mr Lane, the regional general manager of the respondent's NDC Group (New South Wales) and Mr L. Wilson, human resources manager NDC. She stated that Mr Chand had "verbally threatened me with possible dismissal, a heavy fine and jail term". She stated that, during the five months she had acted in the AO 4 position, she had not received any comment or feedback from Mr Chand or any other member of the Project Team to indicate that her performance was not satisfactory. She further noted that Mr Chand had been on leave when she commenced her higher duties; that on 1 April Mr Chand had told her the outcome of a meeting he had held with Mr Lane and Mr Wilson on 27 March, which was that she would be "demoted" and moved out of his project area and that her "sentence" would have been much heavier if he had not intervened on her behalf. She advised:
I do not believe that this is a true representation of the facts. I find it difficult to believe that either Gary Lane or Lee Wilson, in the interests of NDC and the well-being of their staff, would make such a decision without first making further enquiries and/or speaking with me. Gary Lane and Lee Wilson should be able to confirm (or otherwise) the truth of the situation. If my suspicions are correct, I believe that the ramifications should be quite serious. Also, if my suspicions are correct, this yet serves as another example of the discriminatory and unfair treatment I have been subjected to by you.

In an internal memorandum to Mr Lane on 29 April 1998, Ms Shamia noted that she had asked Mr Lane to follow up the matter and that it was three weeks since her response to Mr Chand's letter of 1 April. She was finding the whole matter most disturbing and unsettling and she sought to have the resolution of the matter expedited. She reiterated these concerns in an internal memorandum to Mr Chand on 4 May 1998.

The documents include a copy of an e-mail from Mr Chand to Mr Wilson, dated 29 May 1998, which states:
I see this as your problem and not mine.
I have said before that she is not suitable and that her HD should be ceased. (when due for renewal) Consequently, I have requested that she be moved sideways as she does not have the attributes required for the position and performance has been far from satisfactory.

On 26 May Mr Wilson replied to Mr Chand:

I am a little confused as to how this "problem" is mine.
(i)The position is in JCN1AX reporting to you.
(ii)The functions of the position relate to the management of vendors for infrastructure equipment.
(iii)The classification of the position, ie to be regressed to AO3 as a result of the maturing of the Vendor Ordering Process, was directed by Gary Lane when consideration was being given to the Direct Nomination exercise during February '98 (reference Email of 23/02/98). The timing of this action and advice of this to the occupant would be your call, not mine.
(iv)My understanding is that Gary Lane instructed that Mona remain on higher duties until the issues of the correspondence of 1 April and 9 April have been resolved. This aspect as I understand is contingent on you responding to the letter of 9 April and completing a PDRP with Mona Shamia.

There is a further e-mail from Mr Chand to Mr Wilson, dated 29 May 1998, which advises:

As far as I can see it, Mona Shamia's appointment to the AO4 position in the Infrastructure team has been controlled by others. The position may well belong to Infrastructure under JCN1AX but none of my senior staff (in my absence on compensation leave) have had any input in her selection and appointment to the position for which I am accountable. We were given an officer who does not appear to have the right attributes for the position and lacks understanding of the position.
The Selection Panel (none of whom had full understanding of the position, including HHL), in my opinion, had grossly erred in their judgement and selection of Mona Shamia to the position.
At the time of renewal of her HD in Feb 98, I had advised both you and Gary Lane to cease her HD on receipt of advice from my Switching project staff (namely, B Shah and T Jeffery) that she was not suitable for the position. Needless to say, this was over-ruled and her HD was reinstated for an indefinite period.
Therefore, her continuing on HD is really beyond me and hence not my problem.
I have already put my recommendations forward to address the issue and again I do not appear to have the support from the Regional Office on the matter.
Either you or Gary can respond to Werner on continued HD for Mona Shamia as requested below. Meanwhile, my staff and I will do the best to utilize her services and treat her as part of the Infrastructure Team.

It should be noted that in February 1998 Mr Chand had already recommended that Ms Shamia not undertake higher duties.

The documents include two further e-mail messages with respect to the reclassification of the position occupied by Ms Shamia. On 21 July 1998 Mr Lane received an e-mail from Mr K. O'Shea, advising that material relating to "the job assignment" (the position occupied by Ms Shamia as an acting AO4) had been reassessed and the conclusion reached that the position was "a well-loaded Administrative Officer Grade 3". On 29 July 1998 Mr Lane advised Ms Shamia that, as an acknowledged classification review expert in NDC had determined that the position she occupied should be "dropped to AO3", he accepted the evaluation of the position although he would arrange for her to continue as an AO4 until the end of September. The position was clarified by Mr Wilson when he gave evidence on the second day of hearing. He said that the AO4 position in Mr Chand's area was nominally held by another officer. There was also an AO3 position in the same area. Both positions had responsibility for dealing with vendors. There was insufficient work for both positions and an opportunity was taken to offer a redundancy which was taken up by the other officer. However, it was the AO3 position not the AO4 position which was abolished. As the AO4 position had been advertised and an interview panel for the position was in place, it was decided to proceed with interview but that the position would only be filled on a temporary basis and a review of the position carried out. This is what occurred and that is why Ms Shamia was invited to only act in the position.

On 31 July 1998 Dr W. Rowe, psychiatrist, provided a medical report with respect to Ms Shamia to GIO Australia. Dr Rowe formed the opinion that Ms Shamia did not suffer from a psychiatric illness, although she had been through a period of apprehension and anxiety due to her employment, in particular the threat of demotion and action taken against her with respect to her mistake.
The Tribunal had before it a report from Dr Attia, dated 15 September 1998, together with his clinical notes. Dr Attia diagnosed Ms Shamia as suffering from "Adjustment disorder with anxiety symptoms" and he prescribed deptron to help her sleep. He noted that he had been consulted by Ms Shamia on 3 and 28 April, 1 May, 6 July, 23 July, 29 July and 30 July 1998. He provided her with a medical certificate for one day off work on 1 May and he had referred her to Dr C. Dalton, an ear, nose and throat specialist, as she complained of hoarseness which Dr Dalton attributed to her stress at work. He provided her with a further medical certificate on 23 July, for four days off work. On 30 July Ms Shamia told him that her condition was aggravated by the contents of the GIO Australia report. She was teary and irritable, and he provided her with a further medical certificate and advised her to see a psychiatrist. He noted that Ms Shamia had an appointment to see Dr R. Wade, psychiatrist, on 17 September 1998. Dr Wade's report dated 18 November 1998 is indexed at T41 page 132 of the T documents. In his opinion Ms Shamia warranted a "DSM4 diagnoses of Major Depressive Episode and Generalised Anxiety Disorder". On 5 November 1998 Ms Shamia apparently attended Ms M. Ohana, psychologist, for pain and stress management counselling.
The material before the Tribunal from Dr Attia includes a report by him dated 4 December 1995 in which he recorded that Ms Shamia presented to him on 15 September 1995, stating that she was unhappy at work due to unfair treatment by her seniors. She was tearful, agitated and looked depressed. On 18 September in that year she complained of palpitation and mood changes. When reviewed in October and November she reported sleeping difficulty. The Tribunal also notes an entry in Dr Attia's clinical records of 16 November 1995, which states "worried/distressed unable to get her rights at work". Other more recent medical reports before the Tribunal were not of much assistance to it being based on Ms Shamia's perceptions and not leading to diagnosis of disease.
Ms Shamia provided the Tribunal with a list of her medical expenses which she contends should be paid under section 16 of the Act, together with a claim that she is entitled to incapacity payments under section 19 of the Act, for incapacity for work as a result of an injury from 30 July to 22 September 1998.
The terms "disease and injury" are defined in sub-section 4(1) of the Act:
"disease" means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Ms Shamia gave oral evidence to the Tribunal. She described the position she was interviewed for on 14 July 1997 as an acting AO4 "indefinitely". She then qualified this evidence by saying that it was to be for a 12-month period and that she understood that she would then be appointed to the position. The Tribunal is satisfied that the statement made by Mr Wilson clarified the situation and the Tribunal accepts his evidence that an AO4 position was available for advertising, although the interview panel expressed doubts as to whether the job description was that of an AO4 level. The Tribunal is also satisfied that, when Ms Shamia was selected for the position, Mr Wilson explained to her that the position would be reviewed at some later stage and that "the job was to be regarded as an AO4 on a temporary basis only, pending review". It was intended to reclassify the position to an AO3 at which time Ms Shamia's "acting on higher duties" was also due for review. Ms Shamia denied being advised at interview that the position was an AO3 position, acting AO4. She agreed that Mr Wilson had explained to her that it was an acting AO4 position she was offered. Under cross-examination, she agreed that when she took up the position in October 1997, she knew that the position was to be reviewed.
Ms Shamia agreed that she had made an important error on 26 March 1998. When giving oral evidence to the Tribunal Ms Shamia outlined her understanding as to what occurred on 26 and 27 March 1998. She contended that Mr Chand had advised her that her performance was unacceptable, that she may be fined, gaoled and she would be moved. The conversation took approximately half an hour and Mr Chand advised her that he would let her know on Monday (31 March). Ms Shamia said that she cried and became nervous. She described herself as being "in a state". She did not get the advice from Mr Chand until Wednesday, 1 April 1998. When she received Mr Chand's advice (see paragraph 8 above) she returned to her desk and cried. She said that she had not been aware before receiving the advice from Mr Chand that there were any allegations that she was incompetent.
Ms Shamia said that, after work on 2 April 1998, she attended a medical centre and saw Dr S. Waffif, general practitioner, who provided her with a prescription which she understood was for tablets to calm her. However, as she was then able to arrange an appointment with Dr Attia, she did not fill the prescription. She lost her appetite and she contends she lost weight. Mr Hickey put to Ms Shamia that, between 3 April and 6 July 1998, she attended Dr Attia on two occasions and that his clinical notes make no reference to complaints by her of anxiety and depression. Ms Shamia thought that she could have mentioned those complaints. In her opinion, her conversation with Mr Chand on 27 March and his letter to her of 1 April 1998, only aggravated feelings she was already suffering. She also contended she was not given appropriate help in her new position from October 1997 onwards, either by Mr Chand, who himself was away on sick leave until 30 January 1998, or by Mr Shah or Mr Jeffrey. She said that she attended Dr Attia on 1 May. He gave her a medical certificate stating that she was unfit for work on that day. She was absent from work for 2 hours 36 minutes. The Tribunal notes that that absence does not appear on Ms Shamia's sick leave records. She told the Tribunal that she did not "dare" to take sick leave. She said that she is still attending Dr Wade on a fortnightly basis. She continued to act as an AO4 until the end of September 1998, when the position she was acting in was reviewed and NDC separated from the respondent. Ms Shamia has now reverted to her AO3 position.
Ms Shamia gave evidence that she read the report by Informed Reports on the evening of 29 July 1998. She attended work the next day and advised that she would be taking sick leave. She consulted Dr Attia. She told the Tribunal that she had consulted Dr Attia regarding other health issues between 1 May and 6 July 1998, but she considers that those health issues were related to her stress. It was after she had read the Informed Reports' report on 29 July that she felt that she could not attend work. She was aware at the time of the report about the reclassification of her position. She contends that she was not upset by that report. She was, however, upset when she realised that her name was no longer on an internal e-mail list and she provided the Tribunal with copies of a number of e-mails emanating from Mr Chand to prove her point. She was told on 30 July that her name would be restored to the list. She conceded that she had been treated in 1995 for an anxiety condition, which she contended arose out of unfair treatment by management at work at that time.
It appears from the documents and Ms Shamia's evidence that she perceived that Mr Chand's treatment of her was unsatisfactory, although in speaking to an employee of Informed Reports, after outlining her duties, she is recorded as saying:
e)I have been performing these duties since joining the group on or about 26 October 1997. Throughout this period, until 26 March 1998, I had been free of any worries at work, and was enjoying my new role.
Mr Jeffery also gave oral evidence to the Tribunal. He said that he and Ms Shamia worked on different duties. They had different functions and he was located some 330 kilometres away from Ms Shamia. They communicated by telephone or e-mail. He described Ms Shamia's position as one of change and said that she was inexperienced when she commenced in the position. He explained to her how he saw the position and he told the Tribunal that Ms Shamia took some time to learn the duties as she did not have a technical background. He did recall being told by Mr Chand to minimise the assistance he was providing to Ms Shamia. He had vetted and scrutinised her output, and had given her feedback. He was in a position to answer 90 per cent of Ms Shamia's queries. They were both part of the same team. He said:
. . . Mona was fitted with what was called a vendor sell. I was not the vendor sell officer-in-charge. Pip Chand is a vendor sell officer-in-charge but my position in the technology that Mona was functioning – she was doing the vendor sell – impacted on my position because the technology she was playing around with it was my forte. So I was able to understand and explain the technical, as I said, outcomes. I knew what the outcome had to be to go to the vendor in certain technical terms. I was able to help her that way and explain to her and draw schematics of how technical issues – although she's not a technical person some of the knowledge you needed was required to understand the outputs which you're generating. So, as far as the answer to training, I personally – the only training I gave Mona was face-to-face training on how to use a database, how to use spreadsheets or just – just helping tips and things like that and I did check some of the outcomes. . . .

And further:

. . . I filled that position by helping as much as I could. I know Mona did ask me about the remedies. She said Pip [Chand] was hard to get hold of, and that's . . . but that's why we went through the process we did. I went in one day and got him to explain to both of us the remedies, how to apply the remedies.
. . .
I said there's some personal conflict, yes.

Mr Shah gave oral evidence that he had some responsibility for supervising Ms Shamia.   He checked her work from time to time for typing errors, spelling mistakes and errors in calculations in her reports.   Mr Shah is recorded in the Informed Reports record of interview as advising:
. . .
29.2Mr Shah does not consider the interview panel which selected Ms Shamia properly understood the nature and functions of the position.   Mr Shah suspects Ms Shamia may have impressed the panel on face value, but without any substantial basis.
29.3Ms Shamia is the type of person who does her homework, before taking any action.   She asks around as many people as possible, for advice, before making submissions or decisions.
29.4Mr Shah suspects a good deal of correspondence provided by Ms Shamia has been prepared by someone else, perhaps her son.   He is apparently a lawyer.   Mr Shah does not think Ms Shamia has the necessary writing skills to compile such documents, given the usual style of her working report.
. . . .

The evidence before the Tribunal satisfies it that there is some foundation for Mr Shah's opinion in this regard.

. . .
29.6 He notes that Ms Shamia tries hard, but her performance has not really shown any dramatic improvement over time.

Mr Shah agreed that he had not brought the standard of Ms Shamia's work performance to her attention. Mr Shah is also recorded as expressing an opinion about matters which have nothing to do with the performance of her duties.

Mr Shamia put a number of e-mails before Mr Shah who agreed that Ms Shamia did not appear to receive, at least, one e-mail with respect to leave which would have been relevant to her. Ms Shamia's name was notable for its absence. It was Mr Shah's understanding that only Ms Shamia and Mr Chand knew how to prepare a remedies document. He acknowledged that Mr Chand was away for a number of months following Ms Shamia's appointment to the acting AO4 position and, having been so appointed, it was his opinion that she was "supposed to know" how to prepare a remedies document. He knew that Mr Chand and Ms Shamia had "their differences". It was Mr Shah's opinion that Ms Shamia spent a lot of time on the telephone and her attendance was not predictable. He had not brought these matters to her attention.
Mr Chand gave oral evidence that, after he became aware of Ms Shamia's error on 26 March 1998, he had a conversation with Ms Shamia on the following day. She was his delegate and totally accountable for management of the vendor's business and future orders. It was a serious matter "as confidentiality of one vendor being made available to the other". He considered that Ms Shamia's performance was unsatisfactory. He advised her that he would seriously review her position and consider whether she should continue in that particular position. He denied that he had threatened her with dismissal, although he had advised her that she would be placed in another role.
It was Mr Chand's evidence that Ms Shamia was acting in the AO4 position for a fixed period and that, until that period finished, nothing would change. The position would then revert to an AO3 grade. Mr Chand acknowledged in giving his oral evidence to the Tribunal that he had no control over transfers which was the responsibility of Mr Wilson. However, the Tribunal is satisfied that, rather than waiting for due process, Mr Chand did indicate to Ms Shamia on 26 March that she would be moved which made her anxious about her position in the organisation. The Tribunal is satisfied that it was only after later discussions with Mr Wilson Mr Chand accepted that appropriate steps should be taken with respect to reviewing the position Ms Shamia was acting in. The Tribunal is also satisfied that his frustration at Ms Shamia's error got the better of him on 27 March and that he made statements which were perceived by Ms Shamia as threatening to her position.
In commenting on the discussion he had with Ms Shamia on 27 March 1998, Mr Chand told the Tribunal that, in his view, the interview was the commencement of disciplinary proceedings which he was then required to put in writing. He had made Ms Shamia aware that he was commencing disciplinary action. When asked by the Tribunal to comment on his internal memorandum to Ms Shamia, dated 1 April 1998, which, in the Tribunal's opinion, appears on its face to be in regard to her performance, and how Ms Shamia was to understand that the memorandum was part of disciplinary action, Mr Chand pointed to his statement that Ms Shamia's mistake was of a very serious nature. In Mr Chand's opinion the internal memorandum points to a major breach of responsibility by Ms Shamia which would fall into the category of "chastisement" rather than performance appraisal. He acknowledged that he was not fully aware of requirements with respect to disciplinary action under the Public Service Act 1922 (now repealed) or Public Service regulations. It was his evidence that the internal memorandum of 1 April 1998 was not a "normal letter" in his supervision of employees. He said that, if Ms Shamia had not committed the error on 26 March, there would have been no reason for him to have a conversation with her or to send the internal memorandum. He advised that Ms Shamia was later transferred following an appraisal and as a result of the restructure of the project management group. Ms Shamia was transferred from his section in August 1998 as his group was split into two.
Mr Chand explained to the Tribunal why names sometimes drop off his e-mail list. It had been brought to his attention that Ms Shamia's name was not on his list at some point in time. He was aware of other instances when that had happened with respect to other staff. When he became aware that Ms Shamia's name was not on the list he put it back on. The Tribunal is satisfied that Ms Shamia had grounds for suspecting that her name had been deliberately removed from Mr Chand's e-mail list.
Mr Chand told the Tribunal that, while he was absent on compensation leave, he had delegated his tasks to Mr Shah. Mr Shah was to explain to Ms Shamia the requirements of the position and there was a whole hierarchy of officers below him to ensure that people discharged their duties appropriately. Mr Shah had indicated to him on his return that Ms Shamia failed to satisfactorily complete her work on a number of occasions. He had also personally explained the requirements of Ms Shamia's position to her when he returned to work.
Mr Wilson gave oral evidence with respect to the background to the AO4 and AO3 positions in Mr Chand's area. When commenting on Ms Shamia's interview and appointment as the acting AO4 in the position to be reviewed, he said:
MR HICKEY: Was that position subject to review?---It was and the reason for the review was that the interview panel headed up by Mr Henry Herbert Lowe, who was a fellow executive project manager to Dip Chand, when he looked at the duty statement and indeed the role and the positions, he had some reservations whether indeed the duties as outlined were correct and he shared those views with the regional general manager, Gary Lane. Gary's ruling was that as the position had been advertised, we should proceed with it, however instead of being permanent the position should be reviewed, in other words, that it be filled temporarily, subject to that review being carried out.

Mr Wilson had met with Ms Shamia shortly after her discussion with Mr Chand on 27 March. She indicated that she was unhappy with the meeting. She understood that she had "got the position of AO4" and that action was being taken to try and take it away from her. Mr Wilson said that a couple of days before 27 March, Mr Chand had approached him and sought advice as to the appropriate action to take if he had a person who was not performing the duties of their position. Mr Wilson had outlined the steps to be taken. In his opinion the discussion Mr Chand held with Ms Shamia on 27 March and the internal memorandum of 1 April constitute disciplinary action. Mr Wilson had seen a copy of the internal memorandum dated 1 April 1998 and he had made some amendments to it before Mr Chand sent it to Ms Shamia. Mr Wilson said that an issue arose as to the extent to which Ms Shamia's duties had been outlined to her and how much direction she had been given. It also became apparent to him that she had not undergone performance appraisal. Someone else was brought in to conduct that appraisal from Western Australia as

. . . The reason for that was to be seen that indeed the process was fair, was not biased, that there was no-one who either was in the group there or within the region to be seen as being party to any sort of conflict or drawing sides in this issue.

This evidence of Mr Wilson's re-enforces the Tribunal's perception that it was known within the area in which Ms Shamia carried out her duties that there were issues between her and Mr Chand. An officer from Western Australia found that the duties carried out by Ms Shamia were those of an AO3 and a decision was made in October or November 1998 that Ms Shamia's higher duties would cease.

Much of the Informed Reports' report is with respect to Ms Shamia's earlier employment history, rather than addressing the issues before the Tribunal as to whether Ms Shamia suffered an ailment which was contributed to in a material degree by her employment. As already commented on, the report includes comments by staff which are not relevant to the issue of Ms Shamia's ailment and employment.
The parties agreed to lodge written submissions. Much of the written submission lodged on behalf of Ms Shamia is not relevant to the issue before the Tribunal. It deals with grievances Ms Shamia has concerning her perceptions of Mr Chand's attitude towards her appointment as an acting AO4 and actions he has taken in his position, as well as justifying how she carried out her duties. It does contend, and quite appropriately so in the Tribunal's opinion, that, if Ms Shamia's name was deliberately omitted from Mr Chand's e-mail list to staff generally, that that would be unreasonable disciplinary action taken by management. It is not clear to the Tribunal whether the submission was written by Ms Shamia or Mr Shamia. The Tribunal has not taken into account the statutory declaration provided by Ms Shamia with the written submission as the parties agreed only to make written submissions and the Tribunal gave no leave for further evidence to be submitted. The respondent had no opportunity to comment on it.
The respondent submitted, amongst other things:
22.It is of some importance, when later viewing the sworn evidence of the applicant, that one has regard to the history taken by Dr Rowe of the event in March of 1998 when the applicant was "disciplined" by Mr Chand. It must be noted at that time she gave no history of Mr Chand telling her that she would be, dismissed, put in gaol or the recipient of a monetary fine. Furthermore, it is clear from the history given in the report that it was not for a period of over two months before she had any significant period of time away from work and this was at a time when she described herself as having improved to some degree (as per history to Dr Rowe).

Ms Shamia was not cross-examined with respect to the history recorded by Dr Rowe, who also recorded in the history he took that Ms Shamia said Mr Chand was "very annoyed" and that a week later "he came back to her and said it was a serious offence". The Tribunal is satisfied that Dr Rowe briefly summarised the history Ms Shamia had given him about what occurred in late March and April 1998, and the Tribunal does not read into the history taken by Dr Rowe that Ms Shamia has now invented that Mr Chand told her she would be dismissed, put in gaol or fined. Whether or not Ms Shamia has recalled different words from those actually used by Mr Chand on 27 March, the Tribunal is satisfied that the thrust of Mr Chand's remarks were such that she reasonably perceived that she may be dismissed or suffer some penalty and that her performance was unsatisfactory.

It was the respondent's contention that Ms Shamia did not sustain an injury within the meaning of the Act arising out of the events of 27 March 1998 but that, if an injury was sustained, there was no causal link between the events of 27 March and the period of Ms Shamia's incapacity, between 30 July 1998 and 22 September 1998. If an injury did occur, the respondent further contended that it arose out of reasonable disciplinary action or her failure to obtain a benefit, whereas Ms Shamia contends that Mr Chand over reacted to her mistake and that "his abusive manner put me under a lot of stress and I was continually anxious about my job". She again referred to the fact that her name did not appear on Mr Chand's "E-Mail group".
The respondent referred the Tribunal to the decision of the Federal Court in Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 109 ALR 361 in which the definition of "injury" in subsection 4(1) of the Act was considered, in particular the phrase "disciplinary action". Cooper J noted, at page 368, that the Act does not exclude all injury which has been caused by misconduct on the part of an employee. At page 369, his Honour said:
In the context of the definition of "injury" in s 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. . . . Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act. (emphasis added)

The respondent submitted:

. . . More specifically, in this case, the injury which was suffered by the applicant arose from interviews which had been undertaken investigating possible offences. This is of course not the situation in the present case where the applicant made an error, she became aware of the error and readily acknowledged it to her supervisor. It was consequent upon that admission of error (and it was deemed by her supervisor to be a serious error) that she was the subject of a conversation in which she was chastised, followed up by a letter outlining the contents of that conversation. The interview which took place between Mr Chand and the applicant was in no way investigatory in as much as the applicant had already admitted her fault and Mr Chand was advising the applicant of action which he was taking as a consequence of the applicant's non-performance.

The Tribunal finds that Ms Shamia suffered an ailment for which she first sought medical attention on 3 April 1998. Dr Attia diagnosed adjustment disorder with anxiety symptoms and prescribed medication. Having treated Ms Shamia over a number years and having seen her shortly after the incident which occurred on 27 March, the Tribunal prefers his evidence to that of Dr Rowe who did not see Ms Shamia until the last day in July 1998. The Tribunal is further satisfied that Ms Shamia's ailment is a disease under the Act having been contributed to in a material degree by her employment. The Tribunal finds that the discussion Ms Shamia had with Mr Chand on 27 March, the issue which arose with respect to e-mails and the letter Mr Chand sent her on 1 April all contributed to her symptoms. Ms Shamia felt threatened by Mr Chand's attitude towards her. She suffered stress and symptoms of anxiety. The Tribunal further finds that Ms Shamia suffered an injury under the Act, her disease not being the result of reasonable disciplinary action taken against her or her failure to obtain a benefit. The discussion between Ms Shamia and Mr Chand on 27 March was not in the nature of or to promote discipline. It does not fall within the "rules of conduct or behaviour" applicable to and enforceable against an employee by the Commonwealth. If it could be so defined, the Tribunal is satisfied that the threats made by Mr Chand on 27 March were unreasonable. The confrontation took place because Mr Chand considered Ms Shamia's performance was unsatisfactory. He questioned her competence to carry out her duties. His written memorandum of 1 April raised inadequacies in her performance which Ms Shamia had not been made aware of on an earlier occasion nor had she been given the opportunity to respond to them. The thrust of the document is with respect to Ms Shamia's performance. Ms Shamia's anxiety may also have been contributed to by her incorrect perception that, after a period of time, she would become an AO4. She failed to obtain that benefit but other matters materially contributed to her disease.
Ms Shamia appears to have taken little time off work during the following months until she read the report from Informed Reports on 29 July 1998. She had however lodged her claim for compensation on 15 July 1998 before reading that report. The instructions with respect to the report were apparently to make a factual investigation report with respect to Ms Shamia's anxiety disorder ("Re Workers' Compensation claim"). At paragraph 5, on the second page of the report, the Introduction states:
5A workers' compensation claim has been lodged by Ms Shamia, and we understand that a determination has not yet been made. We further understand Ms Shamia is to undergo a specialist medical assessment with Dr William Rowe on 29 July 1998.
In Federal Broom Company Pty Ltd v Semlitch (1994) 110 CLR 626 Windeyer J said, at page 641:
. . . When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In the case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. . . .

The Tribunal is satisfied that, at the time of reading this report, Ms Shamia was not incapacitated for work, but that it was after reading this report she provided a medical certificate advising she was incapacitated for work. The Tribunal finds however that what incapacitated her was the reading of the Informed Reports' report, a factor which was not an event or occurrence in the course of her employment, or some characteristic of the work she performed or the conditions in which she performed her work. The report forms part of the respondent's investigation, similar to investigations to make an administrative decision with respect to entitlement to compensation such as medical examinations before a hearing of this Tribunal.

The other matter the Tribunal has considered is whether Ms Shamia's ailment arose out of her failure to obtain a benefit under the Act. However, although it distressed Ms Shamia to eventually not retain her position as an acting AO4 or to become substantive in that position, that was not the only source of her ailment. In fact it played, in the Tribunal's opinion, a minor part. The major contributing factor to the development of her ailment was what occurred on 27 March and 1 April 1998. The Tribunal has also given some consideration as to whether Ms Shamia's disease was caused by her own perceptions of what was occurring at work which were not based in reality and that her employment was no more than the scene in which her frustration focused its attention, but on the balance of probabilities the Tribunal is satisfied that is not so. This is more than the resentment of a sick mind directed towards conditions of employment, rather, there are factors within Ms Shamia's employment which made a material contribution to her disease.
It is for these reasons that the Tribunal will vary the determination before it to provide that Ms Shamia is entitled to compensation under sections 16 and 19 of the Act but that she has no such entitlement for the period commencing 30 July 1998 as it was not factors arising out of her employment which then contributed to her incapacity.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd) Catherine Thomas
          Personal Assistant
Dates of Hearing:  31.01.00 and 31.03.00
Date of Decision:  26.09.00
Solicitor for the Applicant            Mr J. Shamia, applicant's son
Counsel for the Respondent:       Mr G. Hickey
Solicitor for the Respondent:       Messrs Henry Davis York