Snook and Comcare (Compensation)
[2022] AATA 449
•14 March 2022
Snook and Comcare (Compensation) [2022] AATA 449 (14 March 2022)
Division:GENERAL DIVISION
File Number: 2020/3500
Re:Brian Snook
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:14 March 2022
Place:Perth
The decision dated 23 April 2020 which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of “depression / anxiety / work related stress” is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – SRC Act s 14 – determination denied liability to pay compensation – claim for “depression / anxiety / work related stress” – whether applicant suffered a psychological injury – whether condition contributed to, to significant degree, by applicant’s employment with AFP (SRC Act s 5B) – whether liability excluded pursuant to SRC Act s 5A(1) – reasonable administrative action taken in a reasonable manner – respondent admits applicant suffered adjustment disorder which later developed into a major depressive episode – respondent admits condition significantly contributed to by applicant’s employment with AFP – applicant’s psychological condition was the result of reasonable administrative action taken in a reasonable manner under the circumstances – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), 5A(2), 5A(2)(c), 5A(2)(d), 5A(2)(e), 7(4), 7(7), 14, 14(1), 16, 19
CASES
Beasley and Comcare [2012] AATA 411
Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439
Georges and Telstra Corporation Ltd [2009] AATA 731
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 4th ed, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013)
REASONS FOR DECISION
Deputy President Boyle
14 March 2022
THE APPLICATION
The applicant seeks review of a decision dated 23 April 2020[1] which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “depression / anxiety / work related stress”.[2]
[1] R2, T58.
[2] R2, T48.
BACKGROUND
The applicant is a 59-year-old former employee of the Australian Federal Police (AFP).
The applicant says that on 24 January 2019, when he was employed as Shift Supervisor at the AFP’s Exmouth station, he suffered what he describes as a “workplace incident” following which he started “an extended period of sick leave”.[3]
[3] applicant's statement, R1/68.
The applicant provided a Workcover WA first certificate of capacity dated 24 January 2019 issued by Dr Johannes Grobbelaar which certified the applicant as having no capacity for work for the period from 24 January 2019 to 24 February 2019.[4] That certificate recorded that the applicant:
Presented with his wife
Stresses anxious
Sleep deprived and Head feels fuzzy
Not able to concentrate
Gets short tempered and impatient at work.[5]
(Without alteration)
[4] R2, T9/38.
[5] R2, T9/37.
Under the section “worker’s description of injury”, the certificate noted the date of the injury as 24 January 2019, and the worker’s description of the injury as “Been stood down and refused access to Base”. The “worker’s symptoms” are noted in the certificate as being “Anxiety and stress building up over +/- 2 year period” and Part 5 of the certificate, “Medical Assessment”, diagnosed the applicant’s injury as “Anxious Moody Stressed”.
The applicant describes the relevant events as follows:
On Jan 24th 2019 following a workplace incident, I commenced an extended period of sick leave. The leave was taken as I had some anger and stress issues due to disagreeing with things that were happening in the workplace. This leave ceased on 31st May 2019.
From 1st June 2019 I was on leave (stood down with pay) and the AFP made no effort to return me to work until I received a letter from the AFP informing me that I was being transferred interstate on 11th Dec.[6]
[6] R1/68.
On 9 December 2019 the applicant submitted two claims for workers’ compensation in respect of “work related stress, anxiety and depression”. In response to the question in both claim forms “When did you first notice your symptoms/injury?”, the applicant nominated 30 June 2019.[7]
[7] R2, T3/5; R2, T4/13.
By determination dated 14 February 2020, the respondent denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of “depression” claimed to have been sustained on 30 June 2019. Liability was denied on the basis that there was insufficient medical evidence to satisfy the decision-maker that the applicant had suffered an ailment as defined by s 4 of the SRC Act.[8]
[8] R2, T48.
On 10 March 2020, the applicant requested a reconsideration of the determination dated 14 February 2020.[9]
[9] R2, T49.
By decision dated 23 April 2020, the respondent affirmed the determination of 14 February 2020.[10] In addition to finding that the applicant’s employment had not significantly contributed to the ailment claimed, the decision-maker found that the applicant had wilfully made a false representation on his claim form, being that he had not previously suffered from the condition the subject of his claim, and that liability was therefore excluded pursuant to s 7(7) of the SRC Act.[11]
[10] T58.
[11] R2, T58.
On 10 June 2020, the applicant filed the application for review of the decision dated 23 April 2020 with the Administrative Appeals Tribunal (AAT).
THE HEARING AND THE EVIDENCE
The application was heard on 21, 22 and 23 September 2021. The applicant was self-represented and Mr A Burgess appeared for the respondent. The following documents were admitted into evidence:
(a)Email dated 25 January 2019 from the applicant to Heath Davies (A1);
(b)Tender bundle filed in the AAT 17 September 2021 (R1);
(c)Section 37 T-documents filed in the AAT 15 July 2020 (R2);
(d)Supplementary T-documents filed in the AAT 25 November 2020 (R3);
The following witnesses gave evidence at the hearing:
(a)the applicant;
(b)Gregory Harrigan;
(c)Heidi Haeusler;
(d)Graeme John Smith;
(e)Murray James Lewin;
(f)Superintendent Peter Chwal;
(g)Hayly Patricia Faithfull;
(h)Heath Davies;
(i)Commander Alison Margaret Wegg;
(j)Dr Gemma Edwards-Smith; and
(k)Dr Brendan Jansen.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act relevantly provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“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 employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5A(2) of the SRC Act provides:
(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.
(Original emphasis)
As noted at [8] above, the applicant’s claims were rejected by the determination of 14 February 2020 on the basis that there was no liability under s 14 of the SRC Act. While it is not relevant to the issues that I must determine, I note that that are no outstanding claims for compensation for medical expenses under s 16 of the SRC Act or compensation under s 19 of the SRC Act.[12]
[12] transcript at 11–14.
Section 7(4) of the SRC Act provides:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
THE ISSUE
The respondent’s SFIC[13] identified the issues for determination as follows:
49. Whether the applicant has suffered a psychological condition.
50. Whether that condition was contributed to, to a significant degree, by the applicant’s employment with the AFP, pursuant to section 5B of the SRC Act.
51. Whether liability for the condition is excluded pursuant to section 5A(1) on the basis that it was suffered as a result of reasonable administrative action, taken in a reasonable manner, in respect of the applicant’s employment.
52. The date on which that condition was suffered, having regard to section 7(4) of the SRC Act.
[13] respondent's statement of facts, issues and contentions filed in the AAT 16 July 2021.
The applicant did not file a statement of facts, issues and contentions. There was no document filed by the applicant which clearly identified what he says the issues for determination are. The applicant’s contentions and the basis of the claim(s) that he makes are to be extracted from the various documents lodged by the applicant (including several statements) and his evidence at the hearing. That is not a particularly easy task and, as I set out below, the applicant’s claim, or claims, appeared to “evolve” over the period of the application and even at the hearing. I am satisfied, however, that the applicant had the opportunity to present his case and all of the relevant evidence, and that the respondent was not prejudiced by the lack of clarity in the applicant’s case as presented.
I accept that the issues as identified by the respondent in [19] above are the issues to be determined in this application.
THE APPLICANT’S CLAIM(S)
In his statement filed with the AAT on 6 June 2021,[14] the applicant referred to the “workplace incident” on 24 January 2019 and being stood down (see [6] above). He says that following his being stood down, “… waiting around with nothing happening sent me into an extremely low state of depression where everything was and to a large extent continues to be a battle” and that “[i]n this intervening period of nothing happening a number of incidents also occurred that slowly turned what was a high expectancy to return to work into depression”.[15]
[14] Included the tender bundle (R1).
[15] R1/68.
The applicant says that “[t]hroughout this I was targeted and ostracised from the workforce and the AFP failed to follow its own Staying in Touch policy”.[16]
[16] R1/68.
His statement then sets out what he describes as a “Basic Timeline”.[17] The critical events identified by the applicant in that timeline are:
[17] R1/68–9.
23rd May: at request of AFP attended an Independent Psychiatrist to be assessed for suitability to return to work. Was cleared to return.
May 2019 pay rise refused as I had no [performance development agreement (PDA)] in place…
At request of AFP attended doctor to gain clearance to return to work. Clearance Granted.
June 1st stand down period commenced.
12th June Dr Katrina Saunders AFP Chief Medical Officer … gave full clearance to return to work.
Nov 2019
Access to Base as an officer removed by AFP, replaced with spouse access as wife worked there and AFP could not stop that access. Sent 2 emails to [officer in charge (OIC)] asking for explanation, no reply.”
…
Received verbal advice from an officer that I had been removed from the Station leave roster for the following year.
Had an application for cash in excess leave denied as I did not have a PDA in place…
19th, sent letter to AFP Commissioner asking him to intervene. …
21st on advice from AFP WA/NT Health and safety advisor in an attempt to make something happen submitted a Workplace Incident Report.
Subsequently Greg Harrigan State Manager WA phoned me and informed me that he had contacted Alison Wegg asking about my return to work and the reply was that they had no plan to return me to work.
December
9th submitted Comcare claim.
11th Received Notification of transfer. To either Canberra or Sydney and I had 7 days to notify which place I preferred.
January 2020
Received notification was being transferred to Sydney against my will.
AFP transferred me to Sydney and subsequently my pay dropped significantly.
…
21 July 2020
At request of AFP attended Dr Jansen’s Office for an assessment as to my suitability to return to work. I was deemed suitable to return. …
August 2020
…
I asked to remain in Exmouth as OIC was transferring out, AFP rejected this.
I Asked to transfer to Geraldton, AFP said no positions there for me.
…
September 2020
Frustrated I requested a Voluntary Redundancy as I believed that I had met the conditions for one. The AFP investigated it and granted me one.
The applicant’s workers compensation claims submitted on 9 December 2019[18] are the subject of the reviewable decision and identified the date of the injury (or at least the date when the applicant first noticed the injury/symptoms) as 30 June 2019. While those were the claims lodged by the applicant, it became apparent at the hearing that the injury claimed to have been suffered by the applicant, on the applicant’s own account of events, may have occurred earlier than 30 June 2019.
[18] R2, T3; R2, T4: see [7] above.
It is not clear why the applicant submitted two claim forms on 9 December 2019. The forms appear to be the same, with the exception of the answer to the question “What happened and how were you injured?”. In one of the claim forms, the applicant answered that question:
Disregard in workplace and AFP making no attempt to address issues raised or return me to work over sustained period of time.[19]
and in the other claim form that question was answered:
Incident at work, completely disregarded by OIC.[20]
[19] R2, T3/5.
[20] R2, T4/13.
As noted at [25] above, in each claim form the applicant identified 30 June 2019 as the date when he first noticed the symptoms/injury. The difficulty posed by the above is that the two claim forms appear to be relating to two separate incidents or sets of circumstances. The first of the above claim forms appears to be a claim for injury arising on 30 June 2019 resulting from being disregarded in the workplace and not being returned to work. The second claim form appears to relate to an injury, again arising on 30 June 2019 according to the applicant’s claim form, resulting from an incident at work in which (apparently) the officer in charge had disregarded the applicant. The claim form does not identify date of the “incident at work” or what occurred.
The ambiguity in the applicant’s claims is not clarified by the applicant’s statement of 6 June 2021 and the chronology therein set out at [22]–[24] above. The respondent did not seek to make an issue of the apparent ambiguity in the claim or claims made by the applicant. In opening Mr Burgess explained the respondent’s understanding of the claim or claims made by the applicant and the respondent’s approach to the assessment of liability in respect of the claims as follows:
COUNSEL: … the respondent’s case is a simple one and that is it’s accepted that the applicant suffered from a psychological condition, and it’s accepted that that condition was at one point described as an adjustment disorder later described as meeting the criteria for a major depressive disorder. The date around when that change in diagnosis happened or when the applicant met the additional criteria to move it into the more substantial condition of a major depressive disorder is something for evidence.
TRIBUNAL: Just on that, though, is it - I think you touched on it - is it the respondent’s case that there are two separate injuries with two separate causes or is it a development of the single injury?
COUNSEL: The respondent’s case is that it is a development of the single injury and that’s supported by the evidence of Dr Edwards- Smith.
… we say it does change how the tribunal has to look at it but we say the outcome would be the same if the tribunal were to accept that there were two separate conditions. The reason for that is that the respondent has submitted that the ailment isn’t an injury for the purpose of the SRC Act because it was sustained as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. If we look at it as a single injury, it’s clear that there was what’s often referred to as a Mooi condition,[21] that being a condition outside the bounds of normal mental functioning from at least the day after the applicant was stood down in January 2019.
If the tribunal is satisfied that there really is just a single injury and that the nature of symptoms waxed and waned and became worse at a later time, then it’s a very clear case, and that is that the applicant’s injury was significantly contributed to by the act of standing him down. That was an administrative action that was taken in respect of his employment, and that was a reasonable administrative action that was reasonable to take in the circumstances… Where an applicant suffers from a condition and one of the significant contributors is a reasonable administrative action taken in a reasonable manner, then the condition is excluded from the definition of injury. Really, that’s where the case ends, in our submission.
If the tribunal were to accept that there were two separate injuries, then it becomes a little more complicated because the tribunal may then accept that whilst the first condition was as a result of reasonable administrative action, the second condition also has to be determined and what caused it. In our submission, if the tribunal takes that approach then the condition still resulted from reasonable administrative action, being both the continuum of being stood down and also the failure to obtain a benefit of being returned to work in Exmouth, or something reasonably done in connection with any of those considerations.
…
TRIBUNAL: Is it necessarily part of the respondent’s case that insofar as there may be a causal link to something, that worsening was as a result of further reasonable administrative action?
COUNSEL: That's correct.
TRIBUNAL: Relating to the return to work as distinct from the standing down?
COUNSEL: To the extent that it was significantly contributed to by work, there may well have been other factors which were not work related. But to the extent that they were work-related factors, that was the result of the failure to return the applicant to the position and that that failure to return the applicant to that position was really part and parcel of the reason the applicant was stood down and encompasses that reasonable administrative action.[22]
[21] Presumably a reference to Comcare and Mooi [1996] FCA 508; (1996) 69 FCR 439.
[22] transcript at 8–10.
As the applicant’s evidence at the hearing emerged, I think that Mr Burgess’s above description of the applicant’s claim or claims is correct and fair to the applicant. The applicant’s claim or claims are, or at least initially were, that he had suffered some sort of psychological injury when he was summarily stood down by the base OIC, Ms Faithfull, on 23 January 2019 and there was potentially another psychological injury (or an aggravation of the existing psychological injury) when he was not returned to work when he was certified fit to return to work. The hearing, the exploration of the medical evidence, the cross-examinations of Dr Edwards-Smith and Dr Jansen and the examinations of the lay witnesses proceeded on that basis.
THE EVIDENCE
It is difficult to glean from the statements provided by the applicant when he says that he suffered an injury and, accordingly, what he claims caused the injury. As noted above, the applicant’s statement filed in the AAT on 6 June 2021,[23] starts the narrative “On Jan 24th 2019 following a workplace incident, I commenced an extended period of sick leave.” The “workplace incident” is not identified nor is the date upon which it is claimed to have occurred, and there is no reference in that statement to events before 24 January 2019. This, coupled with the fact that the workers compensation claim forms submitted by the applicant on 9 December 2019 both identified the date on which the applicant noticed the injury/symptoms as 30 June 2019, makes it difficult to understand the event or the timeline of events which the applicant asserts caused an injury.
[23] R1, 68–74.
In order to try to understand the cause of the injury claimed by the applicant and the relevant timeline, it is necessary to look at the whole of the evidence. As noted at [22] above, the timeline in the applicant’s first statement effectively started on 24 January 2019 immediately following the “workplace incident”. The applicant, however, provided a second statement on 14 September 2021[24] in response to the witness statement of Ms Faithfull who, in her corrected witness statement dated 16 September 2021[25] described her position between 23 December 2018 and 4 July 2021 as being “substantive (owned the position and at the required band level) OIC of Exmouth AFP Station”.[26]
[24] R1, 77–84.
[25] R1/152–166.
[26] R1/152, para 7.
In her statement, Ms Faithfull gives a history of her roles at the Exmouth station and her dealings with the applicant. In his second statement, the applicant takes issue with much of what Ms Faithfull says in her witness statement. I will address later in these reasons the manner in which the applicant does that, however, for initial purposes I set out what Ms Faithfull said in her witness statement and the applicant’s responses in his statement of 12 September 2021 in relation to events leading up to 24 January 2019, the date that the applicant commenced his “extended sick leave” following the “workplace incident”.
Ms Faithfull’s witness statement was, relevantly, to the effect that she started work as a Protective Services Officer (PSO) team member at the Exmouth AFP station around July 2009. In 2012, she transferred to Canberra where she spent three years as a PSO team member. In 2015, Ms Faithfull returned to Exmouth station as a PSO team member. At that time the applicant was a Shift Supervisor. She went on maternity leave in 2016 and returned to the Exmouth station in mid-2017 as an Operational Support Officer reporting directly to the applicant.
In September 2017 an invitation for expressions of interest for the position of acting OIC of the Exmouth station were issued. Ms Faithfull and the applicant applied for the role and Ms Faithfull was successful. She commenced the role of acting OIC on 2 October 2017.
At para 31 of her witness statement, Ms Faithfull says that the applicant “… was quite vocal about the fact that he was unhappy with the decision and was insistent that I adopt certain management practices he had implemented at the station”. Ms Faithfull then outlines ways in which she changed arrangements, in particular rostering practices, which had been in place under the applicant as acting OIC. The applicant disputes certain of Ms Faithfull’s assertions and says that the rostering procedures that he had in place when he was acting OIC were the same as those that had been followed by previous OICs.
Ms Faithfull says that after three months as acting OIC, she was commended for her work by her Superintendent, Mr Chwal, following which she won a promotion to a Band 6 role in Canberra. She says that the applicant had applied for the same promotion, opting to be assessed for promotion to Band 6 or 7 but had told her that he had not been found to be suitable to promotion to Band 6 or 7. She further says that the applicant told her that he thought that the promotion process had been unfair and that she had “an unfair influence on the process”.[27] On 23 December 2018 Ms Faithfull was promoted to OIC of the Exmouth station as a Band 7.
[27] R1/157 para 57.
Ms Faithfull’s witness statement also details what she says were various interactions and discussions she had with the applicant relating to his behaviour, in particular his behaviour towards her.[28] These interactions were from November 2017 onwards. Ms Faithfull says that Superintendent Chwal organised an independent assessment of the station because of roster issues and several Exmouth Professional Standard Investigations for behaviour and conduct. Following that she says that she was directed by Mr Peter Slattery, Manager Protection Establishments (MPE), to commence formal performance management of the applicant. As part of this process the applicant and Ms Faithfull travelled to Perth to meet with Commander Harrigan on 6 June 2018. She says that as the applicant’s OIC and the applicant’s team leader, she was responsible for the applicant’s performance management in accordance with AFP governance procedures.
[28] R1/158–161 paras 59–72.
She says, however, that on 19 July 2018, she was notified by Superintendent Chwal that Commander Harrigan considered that the applicant’s issues were with her, and therefore, it was not appropriate for her to performance manage him. She says that on 26 July 2018, she was copied into an email from Commander Harrigan to the applicant, informing all parties that Commander Harrigan was taking carriage of the performance management process.
Paragraphs 87 onwards of Ms Faithfull’s witness statement refer to what she describes as the “January 2019 incident”. This is the incident on 23 January 2019 which resulted in the applicant being stood down and on the following day obtaining the first certificate of capacity from Dr Grobbelaar and commencing his extended medical leave (see [4] above). In her witness statement, Ms Faithfull says that on 22 January 2019 there was a power outage at the station. The temperature on that day was very hot. None of the electronics or the gates at the base were working, so the gates to the facility had to be left open.
She says that she was out doing administration that day and that when she returned to the station, she found out that the applicant had directed the PSOs to sit in a car and open and close the back gate in Area B, which is normally automated, but which was not working because of the power outage. According to Ms Faithfull the gate was very heavy and required physical exertion to manually operate. This meant that every time someone came to the gate, the PSOs were getting out of the car and opening and closing the gate manually in the heat. She says that she directed the PSOs to stop opening and closing the gate in Area B and commence a patrol online of Area A, as she believed that they would be better utilisation of resources for site security.
She says that the applicant was scheduled to work nightshift on 23 January, but that during the day he attended the station to pick up his wife who also worked at the station. He ran into two PSOs who were travelling in an AFP vehicle and, she says, he swore at them and “called them ‘fucking lazy PSOs’ and told them that they should be opening the gate”.[29]
[29] R1/164 para 101.
Ms Faithfull says that she then received a phone call from the acting Shift Supervisor of the day shift, who informed her of the applicant’s attendance and comments to PSOs on site. She then spoke to the PSOs to whom the applicant had spoken, one of whom she describes as a long-term friend of the applicant, and that they said words to the effect of “… you know what Brian is like, he just goes off when he is in a bad headspace”.[30]
[30] R1/164 para 107.
She says that she then reported this incident up the chain of command because she was concerned about the applicant coming to the nightshift aggravated and being detrimental to the welfare of team members and the operations of the nightshift. She wanted to stand him down for his upcoming nightshifts to give him time to calm down. Her request was granted.
She says that she and others made several attempts to contact the applicant during the day to avoid his coming to his shift, but that he did not answer his mobile. The applicant then arrived for his shift that night and as soon as she saw his car pull into the station, she went outside to meet him to avoid him coming into the station. She says that she explained to the applicant that she was standing him down from the next few nightshifts because she could not tolerate his behaviour at the station.
Ms Faithfull describes the events immediately following that conversation as follows:
114.Brian walked past me towards the station and said, “If this is how it’s going to be” and made some comments about the previous day that I couldn’t hear properly.
115.Brian then entered the station, took something from the Shift Supervisor’s desk, exited the station and walked back towards his car.
116.A short time later Brian then re-entered the station.
117.He then proceeded to tell me about his disapproval of my actions.
118.He pointed his finger at me and said words to the effect of “don’t you tell me what to do I have been here a certain amount of time”. I took this to mean that he felt I could not give him directions, because he had been at the station longer than me.
119.He was standing within arm’s reach of me and posturing as if trying to stand over me.
120.He was pointing his finger at me, his back was arched towards me, and he had an aggressive posture.
121.He was visibly shaking.
122.This was the last time Brian was rostered on shift at AFP Exmouth Station.[31]
[31] R1/166.
The applicant’s statement in response to the part of Ms Faithfull’s statement set out in [40]–[45] above was, relevantly, as follows:
99. Another twisting of the truth and using things out of context, I did not run into two AFP Officers, I spoke to them initially at the gate on my way in when they were putting a chain and padlock on it and told them how stupid it was for it to be an emergency situation and the AFP was chaining up and padlocking the only emergency access/egress to the base. Apparently I did slip in a few F words there but I was off duty and they were not intended to be nasty. Then on my way out the same two officers travelling in their AFP vehicle signalled for me to stop as I was passing them, I stopped alongside them and there was an exchange of words.
100. Another lie.
I said words to the effect ‘My wife had hurt her back pushing the gate open and what were the lazy AFP officers doing, sitting on their lazy arses in the office while the whole base was busting itself working flat out to keep and get the base running and working flat out to get power on to the AFP. I accept that there was a few expletives thrown in and it was not a nice exchange, Where and how many I have no idea, however none of it was directed towards the two officers as intimated here. It was more of a rant at the directions they had been given.
106. The Officers did not seem too aggrieved or upset by what I said.
112. Not true, Faithfull did not say that, she said that I was being stood down for two night shifts because anger issues.
113. [In response to 114 of Ms Faithfull’s statement] I did not say anything about the previous day. I simply bit my lip and walked past Faithfull to get my laptop from behind the supervisors desk.
118. [In response to 119 of Ms Faithful’s statement] A lie, Faithfull was near the supervisors desk and I was at the entrance to the break room, a good 3-4m away.
119. [In response to 120 of Ms Faithfull’s statement] This is stretching things a bit too far. A fully armed OIC, surrounded by fully armed Officers using a statement like this hiding behind a statement that I had an aggressive posture. I have spoken to several Officers present in that office and they have all said that I was calm and controlled when I told her that she was never to just come in and over rule me and change things on me again. I was in control of the shift and had done it many times before and knew what I was doing. I then turned around and left.[32]
(Without alteration)
[32] R1/83–4.
The applicant was cross-examined about the events of 22–23 January 2019 at the hearing. His evidence was generally consistent with his statement cited above. The following questions and answers relating to what occurred immediately after the exchange with Ms Faithfull on 23 January 2019 are relevant in identifying the event or timeline of events which caused the injury for which the applicant claims:
COUNSEL: So that exchange happened in?
APPLICANT: Word – yeah, words – give or take a few words, yes.
…
COUNSEL: The next day – the next morning, you went to your doctor?
APPLICANT: Yes.
COUNSEL: And you told your doctor that you were stressed out at work and were having some issues with your boss?
APPLICANT: If that’s what it says, that’s what that says.
…
I know I went to the doctor and I know – yes, I took whatever it was I said or did to take some leave because I was stressed and a little bit angry, yes.
The applicant was then taken to the consultation note made by Dr Grobbelaar on 24 January 2019[33] which was as follows:
[33] R1/560.
stressed out at Work
Personel issues with Boss
Pushed him out a job and put “inexperienced female in job”
(Stood down because of “anger issues” – which he says lasted “10 secs”)
Not sleeping well
wakes up
Female’s been promoted recently and “she does not know a thing”
Today – outburst – and was stood down and refused entry to Base
This is WCA – Comp Care =
Stress is compromised of bullying …
(Without alteration)
The following exchange then took place:
COUNSEL: You reported you were stressed out at work, had personal issues with your boss, she had pushed you out of a job or you’d been pushed out of a job and they’d put an inexperienced female in your job?
APPLICANT: M’hmm
COUNSEL: Is that what you reported?
APPLICANT: Oh, look, I could of – I can’t remember my words. If a doctor says I said it, I said it.
COUNSEL: And you were stood down because of anger issues, which you say lasted 10 seconds. You weren’t sleeping well. The female that had been promoted recently and she didn’t know a thing?
APPLICANT: She didn’t know anything about that situation and the (indistinct) could have been in danger if something had of happened, I can tell you right now.
COUNSEL: And that you had been stood down and refused entry to the base. It then says, ‘She overrules you on issues that you are confident in and did – and did for 25 years.’ That presumably reported – you’d been doing the job for 25 years?
APPLICANT: I’m not (indistinct) the job I’ve been dealt with many, many emerging situations up there with us, five, whether it’s bomb threats, whether it’s whatever, I had done, yes. And you’ve got to remember the wording there, too, right. Overruled. There’s a difference between overruling, just coming in and saying, ‘Do-do, do-do.’ And talking to someone that’s in charge of a situation or a shift and saying, ‘Hey, I think we should be doing this, what about that.’ It’s not like it’s an emergency situation where you’ve got to make a decision right there and then, bang, bang, bang.’ It’s where you get trained and taught, when you come in from outside, you take a few minutes, you have a look around, you talk to the people involved and then you make your decision. You don’t just go in and overrule people automatically.
COUNSEL: It's fair to - - -?
APPLICANT: Overruled, remember (indistinct) said overruled.
COUNSEL: Yes, and it’s fair to say you didn’t respect the decisions that Hayly had been making?
APPLICANT: I didn’t respect the decisions that Hayly made when all the factors weren’t considered.
…
COUNSEL: Yes. Now, in respect of the report on 24 January 2019, from Dr Grobbelaar, you were certified as unfit for work for a month?
APPLICANT: M’hmm.
COUNSEL: And you stayed off work from then and you never went back to work, did you?
APPLICANT: No
COUNSEL: You continued to be certified unfit, pretty much each month?
APPLICANT: Yes.
COUNSEL: And you went back to the doctor about renewing a – renewing your medical certification?
APPLICANT: Yes, I must have. To get ones every month, otherwise I couldn’t have got it.[34]
[34] transcript at 30–32.
The applicant was asked about being seen by Dr Jansen on 23 May 2019. He was then taken to a consultation note made by Dr Grobbelaar on 28 May 2019. This was prior to receipt of Dr Jansen’s report dated 30 May 2019.[35] Dr Grobbelaar’s consultation note of 28 May 2019 was as follows:
[35] R2, T20.
not ready to go back to work
Trying to establish a WCA claim – not successful yet
Lawyers need Docs – from AFP – difficult to obtain docs even under FOI act
Actions:
Letter printed
Letter written re. A Medical Certificate 2+ days.
Saw Psychologist Perth –
Says he asked the Psychologist what is “his agenda” since he is paid by AFP
Psychologist assured Brain that he was impartial.[36]
(Without alteration)
[36] R1/543.
The applicant agreed that he would have told Dr Grobbelaar what he had recorded in his note of 28 May 2019. Dr Grobbelaar issued a further medical certificate certifying the applicant as unfit for work from 1–30 June 2019.[37] The applicant again saw Dr Grobbelaar on 26 June 2019. Dr Grobbelaar’s consultation note of that date was as follows:
[37] R2, T19.
needs to go back to work - $$ and bored
Tried to get Compo – thing – not successful
Turns down offer for medications – says he tried it before – from Dr in Carnarvon
Works shifts
Try Prochlorperazine to “settle” when going on duties
feels bit ancious working with persons at base
also mild positional vertigo
Stemitil will settle S&Ss and may help anxiety
will go back to work next week.[38]
(Without alteration)
[38] R1/542.
In order to understand the relevant timeline, it is appropriate at this point to go slightly back in time to Dr Jansen’s report of 30 May 2019 following his review of the applicant on 23 May 2019. Under the heading “HISTORY: Originating Complaints”, Dr Jansen recorded:
Mr Snook presented as a 56-year-old male who was living with his wife in Exmouth. He had been employed in the Australian Federal Police (AFP) for approximately 27 years: as you outlined in your letter or request he has performed various roles with the Australian Federal Police in that time, including as the Acting Officer-in-Charge in Exmouth.
Mr Snook outlined a series of stressors which acted as precipitants for his psychiatric disorder. He stated that the successful promotion of Hayley Faithfull to the position of Acting Officer-in-Charge in September 17 was a blow to him as he felt he was more qualified; In addition he had provided mentorship to Ms Faithfull and had taught her many aspects of the role.
His lack of success in the promotional round for Band 6/7 of the National AFP was also difficult for him to accept, especially as there were some technical difficulties during his assessment.
Noted in the referral letter is that he had been performance managed from June 2018. The installation of Ms Faithfull as the substantive Officer-In-Charge in December 2018 was a further stressor for him. He particularly struggled with his view that some of the decisions that were being made were not optimal.
He noted that the interventions of Commander Harrigan, the State Manager of the Australian Federal Police, had been extremely helpful.
His frustrations, however, grew, culminating in the incident on 22 January 2019, as outlined in the Incident Report. He admitted that he had found It difficult to control his frustration and that his anger spilled over into the situation.[39]
[39] R2, T20/78.
Under the heading “Presenting Complaints”, Dr Jensen reported:
Mr Snook described the insidious onset of the following symptoms: poor sleep, obsessional rumination, irritability, some depressed mood and feelings of anxiety, He noted a month-Iong period of Increased alcohol use after the incident in January but this has since abated.[40]
[40] R2, T20/79.
Under the heading “Current Problems”, Dr Jansen reported:
Mr Snook has not been at work for approximately four months. He reports significant improvement in his symptoms. His sleep has improved and his negative ruminations are also less. His ability to manage his frustration and his anger has improved. He has not received any formal therapy.
He is aware that his direct communication style and his tendency to take an at times strident stance on issues he feels strongly about has the potential to put him in conflict with management. However, he stated that has was confident that he has worked on this tendency and felt almost ready to return to work in his substantive position.
As mentioned, his current level of alcohol use is minimal and intermittent, amounting to two to three standard drinks two to three times a week.[41]
[41] R2, T20/79.
Under the heading “Summary and Assessment”, Dr Jensen said:
Mr Snook has developed adjustment symptoms consisting of disturbance of emotions and conduct, and those adjustment symptoms have been in response to Identifiable stressors. The symptoms and behaviours have been clinically significant, as evidenced by marked distress and impairment in occupational functioning.
The stress-related disturbance does not meet the criteria for another mental disorder and is not an exacerbation of a pre-existing mental disorder.
The symptoms do not represent bereavement, and it is likely that once the consequences of the stressor/s have terminated the symptoms will not persist for greater that six months.
Specifically, Mr Snook presents with an adjustment disorder with mixed disturbance of emotions and conduct meeting the criteria for 309.4 in DSM 5.[42] I did not assess him to have a personality disorder although personality features of principled idealism, and rigidity related thereto, were noted. I did not assess him to meet the criteria for a major depressive disorder or an anxiety disorder. There is no evidence of substance use.
His symptoms are in almost complete remission. He has not received formal treatment but his symptoms have improved.
He is approaching being fit to return to full duties and I would estimate that he is between two to four weeks away from being able to return to full duties.[43]
[42] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013) (DSM 5).
[43] R2, T20/80.
Picking up the timeline of the applicant’s symptoms from his consultation with Dr Grobbelaar on 26 June 2019 (see [51] above), the applicant’s evidence in cross-examination was:
APPLICANT: …So I’m just saying that from perhaps from June – in other words, from when I was refused to go back to work, I went downhill pretty damn quick and pretty hard.
COUNSEL: And when you say when you were refused to go back to work, that is after you received the Jansen report which said that you were fit to go back to work and then there was the chief medical officer cleared you medically to go back to work?
APPLICANT: Yes. And then my doctor which cleared me medically to go back to work. Or one of the doctors that I went and saw. Whichever one it was, I don’t know.
COUNSEL: And around that time, you say you went pretty quickly downhill?
APPLICANT: Well, no, no, it’s not what I’m saying. What I’m saying is from some time after that time, going back to then, sometime after that June, sometime after I wasn’t returned to work, I started going downhill and it got worse and it went downhill pretty quickly because they refused to – well, we’ll talk about that as we go on.
…
APPLICANT: Sometime in that period. I can’t tell you when, but sometime in that period, I went down and I started to go down pretty quick.
COUNSEL: Yes. And you’d been speaking to your doctor, but you hadn’t reported how seriously – you – you hadn’t reported for example the suicidal thoughts?
APPLICANT: No, no. Because I fully understand the complications of reportings that you have suicidal thoughts and the outcomes for that. And for any potential me to go back to work, which would have, ‘Hey, you beauty’, it would have put everything in jeopardy. So that was my mental state.
COUNSEL: So by the time you’re telling Dr Edwards-Smith this, we’re talking November 2020, so we’re talking around the time you saw Dr Edwards-Smith, you were negotiating your voluntary redundancy, weren’t you? Or the redundancy package, sorry?
APPLICANT: M’mm.[44]
[44] transcript at 36–7.
It is appropriate at this point to look at Dr Edwards-Smith’s supplementary report, that is the report dated 28 June 2021,[45] to see what the applicant had told Dr Edwards-Smith about the events giving rise to his mental state. In that report Dr Edwards-Smith, having reviewed Dr Jansen’s report dated 30 May 2019 and the consultation notes of Dr Grobbelaar, commented that:
On review of my own records, certainly it was the history provided to me that in January 2019 he had felt angry, aggressive, grumpy and ruminating but that his symptoms had improved to the point where although “still pissed off not as aggro” he had wanted to return to work other than with the officer in charge at Exmouth.
When he was not able to return to work he said that he felt stressed, suffering from depression and that from June 2019 he had experienced feelings when he was down in his mood, eating too much, experienced suicidal thoughts with worsening symptoms, stopped his usual activities such as fishing and camping and “couldn’t be bothered”. He had cancelled fishing trips with a rapid escalation when he was advised that he was being transferred to Sydney.[46]
[45] R1/40–3.
[46] R1/42.
The applicant was asked about these observations of Dr Edwards-Smith:
COUNSEL: … There was a history provided to me that in provided to me that in January, ‘he felt angry, aggressive grumpy and ruminating but that his symptoms had improved to the point where although still pissed off, not as agro.’ And they’re in quotation marks. Would you accept that’s probably what you said?
APPLICANT: Probably what I said.
COUNSEL: You wanted to return to work, other than with Hayly being the officer in charge?
APPLICANT: I was prepared to return to work with Hayly as the officer in charge. It was Dr Gemma Edwards-Smith that said to me, ‘I doubt if you could do that.’ And I said, ‘Well, I’ve worked with far worse people than over the years than Hayly and I’ve managed to get through that all right.’[47]
[47] transcript at 37–8.
In cross-examination the applicant confirmed that in June 2019 he had been cleared to return to work by the AFP Chief Medical Officer (CMO).[48] He was then asked about the discussions that he had with various senior officers within the AFP relating to his return to work:
[48] transcript at 40.
COUNSEL: When you spoke with Greg, it’s fair to say that he advised you - or there was some discussion about you being redeployed elsewhere?
APPLICANT: I can’t recall that discussion with Greg. I know he did ask me some questions about whether it was redeployment or redundancy or something, but I can’t sit here and say one or the other.
COUNSEL: You’d noted some interest in either going to either Geraldton, Darwin or Perth?
APPLICANT: I did say that if I had a - yes, if I was offered a place where I could go and live - one of those - I would seriously consider it.
…
COUNSEL: It would have been discussed that potentially there was going to be a decision that you weren’t going to return to Exmouth, wasn’t it? There was discussion about that?
APPLICANT: I think Greg - I can’t remember exactly, but he would have - or he might have said that I can’t - or he didn’t think I could go back and work with Hayly Faithfull and if that’s his decision, he’s the state manager, so be it. But that didn’t preclude Hayly Faithfull from leaving Exmouth and I could go back to my job. So - whatever.
COUNSEL: You were aware at that time that there were other people that had spoken out about your behaviour - specifically when they were interviewed by Mills Oakley?
APPLICANT: See, I didn’t know anything about that Mills Oakley stuff - nothing about it. I knew that there was a thing and there was a little bit of - Greg - there was a bit of a report there and Chwal waved a little paper in front of me and said something about it, that’s it. I did not actually know that - people might have said some things but I didn’t know that they actually spoke about me as nasty as what they did when I got the report, I can tell you right now. At that particular time, it would have been something I could quite easily live with because people always don’t like me because I make decisions sometimes that people don’t like; people make decisions that I don’t like. You get a bit upset with it, you get over it and you get on with it.
COUNSEL: At least around July 2019 - so you’d been off for six months - you were aware that there were people that didn’t want to work with you?
APPLICANT: I wasn’t aware there was people that didn’t want to work with me, no. I was aware there was people that didn’t like some of the things I said and done but not didn’t want to work with me. I had no idea, except for one. But we won’t get into that discussion because that’s a can of worms you won’t want to go near.
COUNSEL: When you say “one”, you’re referring to Hayly?
APPLICANT: No.
COUNSEL: Who are you referring to?
APPLICANT: Kerry Jones-Simons.
COUNSEL: Is that an employee in Exmouth?
APPLICANT: Yes.
COUNSEL: Around July 2019, you knew that there was - because of your discussions with Greg, who is, you said, the state manager. Is that right?
APPLICANT: M’mm.
COUNSEL: Or you suspected?
APPLICANT: No. I knew there was a likelihood that I would be going back to work with Hayly Faithfull and, as Hayly Faithfull expressed on many occasions she wanted to transfer out and go to other positions, I assumed that as soon as Hayly Faithfull got another position, I would be fine to go back there from what they were considering. That was my assumption.
COUNSEL: But you had discussions about relocating, notwithstanding that?
APPLICANT: There were discussions about me relocating. There were discussions about - well, I suppose they were but not about relocating, about if I couldn’t work there, where else would I probably work. There wasn’t discussion about - I mean, it was but it wasn’t - not to me. It was just, you know, “If you can’t go back and work with Hayly, what would you like to do?” “Well, this is what I’d like.” Well, that’s not really a - I mean, it’s a conversation. It’s not a discussion, it’s a conversation.
COUNSEL: What I’m saying is, that you had discussions or you had a conversation - you had a conversation about what would happen if Hayley stayed there and you might need to move?
APPLICANT: No, we had a conversation about if I was to go somewhere else, where would I like to go.
COUNSEL: So you knew there was a possibility of that happening?
APPLICANT: Only if I got to where I wanted to go. There was no possibility otherwise.
COUNSEL: What did you suspect would happen if you didn’t get given an opportunity?
APPLICANT: Well, I’d just stay - I’d be there until Hayly left. The AFP had no reasons to manage me out of a situation - out of a position, which is what Hayly and a couple of others wanted to do, and she is recorded as stating that.[49]
[49] transcript at 40–4.
Commander Wegg gave evidence relating to the circumstances surrounding the applicant’s return to work, or more correctly, his non-return to work. In her witness statement dated 4 December 2020, Commander Wegg stated:
3.I am currently employed by the Australian Federal Police … as Commander - Specialist Protective Strategy and Coordination.
4.I have been in this role since 1 July 2020.
5.I have been with the AFP for 30 years overall.
6.I am aware that Brian Snook (Protective Service Officer) has lodged a workers' compensation claim in respect of a psychological condition which he claims to have sustained as a result of his employment with the AFP in 2019.
7.I was involved in Brian's claim when I was Acting Manager – Protection Establishments.
8.I held that role from mid-June 2019 to 2 February 2020.
9.The role meant that I had responsibility for the national Protective Services workforce in collaboration with local officers.
…
11.Shortly after I started the Acting Manager – Protection Establishments role, I was advised that Brian had attended a fitness for duty assessment and had been cleared fit to return to work.
12.I was provided with some background to the matter, including the Mills Oakley report from June 2018 (T8).
13.After reading that report, I was concerned about the impact that returning Brian to the Exmouth station would have on Hayly Faithful [sic] (Officer in Charge - Exmouth) and the rest of the members there.
14.I was also aware that Brian had been stood down in January 2019 following an incident with Hayly.
15.I was concerned that his behaviour towards her would not change if returned to her station.
16.Obviously we needed to return Brian to work, but not at the expense of the health and safety of others.
17.With that in mind, we needed to consider other locations that we could return Brian to.
18.The PSO classification structure is very stringent, and so we could only consider stations which had vacancies at Brian's level.
19.As the matter went on, an added difficulty was that Brian wanted to remain in a remote location like Exmouth, but there were no vacancies at his level at the stations that he expressed an interest in.
…
26.On 24 June 2019, I attended a Protection Operations Injury Management meeting where one of the discussions was in regards to Brian's return to work options.
My diary note of that discussion can be found at T65, p234.
27.Later the same day, I met with the AFP's Chief Medical Officer (CMO) Dr Katrina Sanders, to discuss the issue further.
My diary note of that discussion can be found at T65, p234.
28.I attempted to telephone Brian on 1 July 2019 at about 3.45pm.
My diary note confirming my attempt to call Brian can be found at T65, p235.
29.There was no answer so I left a message for him to call me back to discuss his return to work.
…
38.On 2 July 2019, I attended a Human Resources Performance Management meeting where I again discussed Brian's return to work options.
My diary note of that meeting can be found at T65, p236.
39.On 9 July 2019, I attended a teleconference with Greg, Rachel Roberts (Project Officer to National Manager Protection Operations - Protection Operations) and Heath to discuss Brian's return to work. My diary note of that meeting can be found at T65, p237-238.
40.The key points that were discussed were as follows:
a.Brian was in Perth as his father was unwell. Greg had been in contact with him. I advised that I was not aware that Brian had made any attempts to advise the workplace that he would be absent to care for his father.
b.Brian's fitness for duty assessment cleared him to return to work, but the process needed to be managed to ensure the health and safety of all members.
c.I had attempted on two occasions to contact Brian and had left messages but had not received any response.
d.We discussed the possibility of mediation but given this was not recommended in the fitness for duty assessment or the Mills Oakley report, we did not pursue it.
e.Peter Chwal, previous Superintendent with responsibility for Exmouth station, had recommended that Brian not return to the Exmouth station.
f.Greg advised that Brian did not want to retire yet for financial reasons, and was interested in a transfer to Darwin, Geraldton or Perth. None of those locations were options at the time.
…
47.In October 2019, Brian emailed the AFP about some leave issues (T26, p99-100).
48.This sparked another conversation between Greg, Heath and me about Brain's return to work and in particular, the slow progress with the return to work because of the lack of contact from Brian (T29).
49.On 7 November 2019, Brian emailed Heath about his return to work, and Heath forwarded that email to me (T32, p122-123).
50.I responded to Heath's email on 19 November 2019 explaining that I was working through the options for returning Brian to the workplace but noting that neither I nor he had heard back from our attempts to contact Brian about the issue (T32, p121 ).
51.On 27 November 2019, Greg emailed me to advise that Brian had lodged an incident report (T35, p130-131).[50]
[50] R1/99–107.
Commander Wegg then outlined further internal discussions that she had and enquiries that she made in relation to finding an alternative location to Exmouth for the applicant to be posted. She said that returning the applicant to work at Exmouth was not an option because of the concern for the wellbeing of other officers at the Exmouth station, including Ms Faithfull. Commander Wegg’s statement continued:
56.On 10 December 2019, I wrote to Brian offering him an assignment of new duties under section 40H(1) of the Australian Federal Police Act 1979 (Cth) at level in either NSW or the ACT (T37).
57.My letter explained that I continued to hold concerns about Brian's behaviour and that returning him to Exmouth was not in the best interests of others at the station.
58.My letter provided Brian with an opportunity to make submissions about the offer of new duties by 18 December 2019, after which time I would make my decision.
59.My letter also included details of the AFP's Employee Assistance Program.
60.On 18 December 2019, Brian emailed me a letter from Dr T Vasanthi Thevarajah (General Practitioner) dated 13 December 2019 (T40, p165).
Annexed and marked AMW-1 is a copy of the letter from Dr T Vasanthi Thevarajah (General Practitioner) dated 13 December 2019.
61.I responded to Brian by email dated 20 December 2019, advising that I would delay making my decision until 31 January 2020 (T40, p164-165).
62.There was a change in organisational structure in January 2020 and Brian's case was moved from my oversight to Timothy Underhill, acting Commander Western Command.
63.Brian emailed me on 20 January 2020 enclosing a letter from Dr T Vasanthi Thevarajah dated 17 January 2020 (T39, p162-163, T46).
(Original emphasis)
The letter from Dr Thevarajah dated 17 January 2020 to which Commander Wegg referred[51] advised that the applicant was “unfit to go back to work or to make any decisions with regard to his future until 29/02/2020”.
[51] R2, T46.
As noted at [7] above, the applicant had, on 9 December 2019, lodged his two workers’ compensation claims which were the subject of the determination dated 14 February 2020[52] and the reviewable decision dated 23 April 2020.[53] Necessarily therefore, the applicant’s claim is for the condition or conditions/injury which had been incurred, according to the applicant, prior to 9 December 2019 and, presumably as the applicant identified the date when he noticed the injury/symptoms as 30 June 2019, prior to that date.
[52] R2, T48.
[53] R2, T58.
What then was the event or events which, according to the applicant, caused the injury on 30 June 2019 or, possibly, on some earlier date with the symptoms manifesting themselves on 30 June 2019? The answer to that is not clear from the above evidence. An examination of the medical evidence goes some way to providing possible answers.
The medical evidence
Dr Grobbelaar
The first relevant medical record is Dr Grobbelaar’s consultation note and medical certificate of 24 January 2019, that is the day after the “incident” at work which resulted in the applicant being stood down by Ms Faithfull. I am satisfied that that was the incident described by the applicant in his statement (see [6] and [22] above). The notes made by Dr Grobbelaar on 24 January and thereafter are set out in [48], [50] and [51] above. I also note the worker’s description of the injury, the clinical findings and the diagnosis of the applicant’s injury set out in the first certificate of capacity issued by Dr Grobbelaar on 24 January 2019 (see [5] above).
I also note the letter from Dr Grobbelaar sent to Comcare on 12 December 2019,[54] three days after the applicant submitted his workers compensation claim forms, which was in the following terms:
The above-mentioned person had been off work for a few months now, due [sic] an incident at work, which he claims is stress related, but AFP may see it as a behavioural issue.
This incident involved many consultations with Mr Snook.
We require a claim number to forward medical consultation claims.
Please advise whether this (is or will be) registered as a work related incident, in order to ensure correct agency responsible for payment.
[54] R2, T38.
Dr Jansen
In a CV attached to his report dated 5 July 2021 Dr Jansen describes his qualifications as follows:
Special Expertise
·Post-Traumatic Stress Disorder – Civilian and Military
·Postnatal Depression
·Affective Disorders
·Medicolegal
·Psychodynamic Psychotherapy
Professional Associations
·Fellow, Royal Australian and New Zealand College of Psychiatry (RANZCP) Professional Status
Professional Status
·Consultant Psychiatrist and Head of Department, Department of Psychological Medicine, King Edward Memorial Hospital - Women and Newborn Health Service
·Former Head of Clinical Services, Mirrabooka Community Mental Health Service
·Private Practice
·Approved Medical Specialist, WorkCover WA
·AMA 5th Edition
·mlcoa Consultant Psychiatrist.[55]
[55] R1/59.
In that CV Dr Jansen also described the significant clinical experience that he has had.[56]
[56] R1/59.
I have set out at [52]–[55] some of Dr Jansen’s report dated 30 May 2019. In response to the question of whether the applicant met the DSM 4[57] criteria for a particular psychiatric disorder, Dr Jansen responded:
DSM 4 has been superseded by DSM 5, and Mr Snook’s symptoms were sufficient to meet the DSM 5 criteria for the above disorder.[58]
[57] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 4th ed, 1994).
[58] R2, T20/81.
I take the reference to the “above disorder” to be a reference to Dr Jansen’s diagnosis in the same paragraph of his report of the applicant having an “adjustment disorder with mixed disturbance of emotions and conduct”.[59]
[59] R2, T20/80.
In answer to the question of the contributors to the applicant’s condition, Dr Jansen answered:
The major contributors to Mr Snook’s symptoms are his psychiatric disorder with a small contribution of his personality factors as outlined in the body of this report and summarised under “Summary and Assessment”.[60] (See [55] above.)
[60] R2, T20/81.
Dr Jansen prepared a further report dated 27 July 2020[61] following a further examination of the applicant on 21 July 2020. In that report Dr Jansen made the following observations:
[61] R3, ST20.
HISTORY:
I had previously examined Mr Snook on 23 May 2019 and provided a report to the Australian Federal Police dated 30 May 2019.
I re-questioned Mr Snook about the contents of the report from 30 May 2019 and he confirmed that the historical details were accurate. Please refer to the aforementioned report.
Progress Since Last Assessment:
Since my previous review of Mr Snook in May of 2019, where I assessed that he would be fit to return to work in two to four weeks, he stated that he received information that Dr Katrina Sanders, the chief medical officer of the Australian Federal Police, agreed with my assessment and a medical clearance from his general practitioner was also obtained.
…
He stated that there was no contact from his employer, the Australia Federal Police (AFP), about any return to work until November. Mr Snook stated that he became concerned and took it upon himself to write to the AFP Commissioner. He received additional advice to submit a workplace incident report which he did.
Soon after, he was contacted by Commander Harrigan, the previous State Manager, whom he stated informed him that he was given the task of contacting Mr Snook as "no-one else wished to do so". He claimed that Commander Harrigan stated that there was "no status" about any return to work plan for Mr Snook. Mr Snook stated that in December 2019 he saw his general practitioner and submitted a worker's compensation claim to Comcare.
He stated that four days later he received a return to work instruction that he was to be posted interstate, and had to decide between a posting to Canberra or Sydney. He stated that he was given seven days to respond and that he did not do so.
He stated that he became distressed and he was re-examined by his general practitioner. Mr Snook was assessed to be unfit for work from December 2019.
…
Presenting Complaints:
Mr Snook stated that he experienced the insidious onset of worsening symptoms. He stated that he developed poor sleep with profound middle insomnia, difficulty managing his anger and frustration tolerance, constant rumination about his predicament in relation to work and frank suicidal ideation. He stated that his symptoms worsened, culminating in a visit to his general practitioner in December of 2019.
…
Current Problems:
Mr Snook is concerned that he achieved some readiness to return to work but then experienced a deterioration in his mental health. He notes that his mental health is improving but he is concerned about a posting interstate and is unable to countenance such a move. He was concerned that if he was certified fit to return to work, he would be made to transfer to another location; but that if he was certified unfit for work his employment may be ceased on medical grounds.
…
SUMMARY AND ASSESSMENT:
When I last examined Mr Snook my assessment was that he had an adjustment disorder with mixed disturbance of emotions and conduct and that he was achieving complete remission.
The history suggests that he developed an insidious onset over some months of worsening of symptoms that met the full criteria for a major depressive episode. When [DSM 5] is applied the specific criteria met were: depressed mood most of the day nearly every day, decreased pleasure in activities most of the day every day, fatigue, insomnia, suicidal ideation and agitation.
In the context of the major depressive episode his psychotherapy ceased to be as efficacious as it had been in the past. Furthermore the stressors that he experienced were sufficient to prolong his depressive symptoms. His personality style, that has been outlined in the previous report, was also a contribution and as he became more depressed it is likely that his belligerence would have increased. His ability to engage in the negotiations with work would have further deteriorated.
He has begun antidepressant therapy and it is showing some moderate early effect. His condition is therefore one of major depressive disorder, without psychotic features, in partial remission.
Discussion with treating practitioners:
I had the opportunity to speak with Dr Thevarajah, Mr Snook's GP, and Ms Deise Cavalho, his psychologist.
We were in agreement that Mr Snook's symptoms worsened so that he developed a major depressive episode. We agreed that his personality style did not lead to strategies that would allow easy resolution of his workplace issues, made worse by his depression. We were also in agreement that he was in a state of partial remission, but that a posting interstate would be risky due to the separation of Mr Snook from his social supports. Proximity and access to such supports are an important factor in assisting his recovery. We differed as to when Mr Snook would be ready to begin a graduated return to work. Dr Thevarajah felt that a further four weeks of recovery was necessary, and I was of the opinion that he could begin day shifts, if in WA, immediately.
…
Diagnosis
…
The diagnosis of adjustment disorder with mixed disturbance of emotions and conduct was accurate in respect of my previous assessment dated 23 May 2019. Mr Snook has gone on to develop a major depressive episode as I have outlined above. His condition is therefore one of major depressive disorder, without psychotic features, in partial remission.
…
As outlined in my Summary and Assessment section above Mr Snook's condition of an adjustment disorder was indeed in partial, almost complete remission. He went on to develop a major depressive disorder, from which he has not fully recovered.
…
9. In your medial opinion, do you believe Mr Snook's prolonged absence from the workplace has attributed to his medical condition or his attitude towards the AFP?
Mr Snook's prolonged absence from the workplace has contributed to his medical condition in the sense that his subjective view was that significant delays occurred in actioning his return to work plan. The prolonged medicolegal process and his subjective feeling of lack of agency has also affected his mental state.
Dr Jansen provided a supplementary report dated 5 July 2021[62] which relevantly reported:
[62] R1/48–60.
Opinion in Regard to Documentation:
The correspondence confirms that Mr Snook’s delay in being returned to duty was not related to ignoring of further medical advice but was more linked to his status of having been stood down and the question of how to safely return him to a workplace (and which workplace this would be). As Commander Harrigan has noted in one of the email correspondences, there was some delay in this process with some lack of clarity as to exactly who was responsible.
Mr Snook’s own personality characteristics - viewing the reporting requests placed upon him as being unreasonable - were also unhelpful. In a self-filling manner, the avoidance of both parties in dealing with the issue prolonged the process. From the perspective of the organisation this is somewhat understandable given Mr Snook’s previous tendency of reacting with anger, impulsivity and irritability.
…
On the occasions that I reviewed Mr Snook my objective clinical findings were consistent with his subjective presentation, his complaints and his symptoms, and the overall history is in keeping with the documents provided to me. The documents authored by Mr Snook contain history that matches that which I obtained at each interview.
The additional documents provide further insight into Mr Snook’s personality functioning including his tendency towards lowered frustration tolerance, his disdain for rules and protocols, and his resistance towards long term institutional cultural change.
…
My diagnoses of adjustment disorder and major depressive disorder are maintained.
…
Dr Edwards-Smith has made the same diagnoses. She indicated that they are not two distinct conditions but instead, represent an intensifying of symptoms over time sufficient to warrant a change in diagnosis. Do you agree with Dr Edwards-Smith’s characterisation?
Strictly speaking the diagnoses are separate and occur in different categories in the [DSM 5]. Major depressive disorder is one of the depressive disorders and adjustment disorder is seen as one of the trauma- and stressor-related disorders. I assessed the major trigger for his adjustment disorder was the workplace incident and its consequences in January of 2019, whereas the major contributor to his major depressive disorder was the unclear status of his return to work placement and the resultant financial stressors, with the possible additional contribution of the other stressors you have noted, including illness in his father.
…
I assessed the onset of the adjustment disorder as being soon after the January 2019 incident and the onset of the major depressive disorder as approximately December 2019.
…
The adjustment disorder was related to his employment insofar as it occurred immediately after the incident of interpersonal conflict at work in January 2019.
The major depressive disorder was related to his employment insofar as he perceived a lack of clarity about his return-to-work plan and exact location. That these remained unclear for a period of time contributed to his stress, along with other stressors I have mentioned in response to 3 above.
…
Taking into account the legislative framework please note the following:
a.His adjustment symptoms are likely to have been linked in part to his unsuccessful application for the officer in charge promotion. His major depressive disorder is unrelated.
b.His adjustment disorder and major depressive disorder are unlikely to have been related to his performance management.
c.His adjustment disorder is likely to be significantly linked to being stood down from duty following the January 2019 incident.
d.Being denied a pay increase in 2019 is likely to have been a factor in precipitating his major depression but not his adjustment disorder.
e.Being denied a return to the Exmouth station is likely to have been a factor in worsening his depression or in causing his depression, but not his adjustment disorder.
f.Being advised that he would be redeployed to New South Wales or the ACT is likely to have impacted up on his depressive condition but not his adjustment disorder.
(Original emphasis)
Dr Edwards-Smith
Dr Edwards-Smith describes her qualifications as being a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and a specialist in general adult psychiatry with an interest and experience in consultation liaison psychiatry, specifically the interface between medical and psychiatric conditions. She says that she has experience in general practice liaison psychiatry and the treatment of mood disorders in both public and private practice. She says that she has special interest in civil forensic psychiatry and is the past Secretary and Chair of the Forensic Faculty, WA Branch of the Royal Australian and New Zealand College of Psychiatrists. She is an approved medical specialist in both New South Wales and Western Australia with WorkCover New South Wales and Western Australia and has over 15 years’ experience in conducting independent medical evaluations. She has completed the American Academy of Psychiatry and Law Forensic Review Programme. Her further professional activities relate predominantly to continuing professional medical education and she is the former State representative of the Continuing Medical Education Committee (CME) of the RANZCP (WA Branch), and the WA representative of the Binational CME committee of the RANZCP.[63]
[63] R1/2–3.
In her report dated 18 November 2020,[64] having examined the applicant on 16 November 2020 and summarised various prior medical reports, including those of Dr Jansen, Dr Edwards-Smith reported as follows:
He had seen his doctor feeling angry, pissed off, aggressive, grumpy, ruminating on what was happening and he was referred to see Dr Jansen. It was his understanding that he was then cleared to return to work. He told me “The AFP refused to allow me to work”. He said “They didn’t do anything”. He said that he stopped his sick leave and was therefore stood down with pay. He said that he wanted to get back to work. He acknowledged that he could not work with the OIC but that she could not work with him either and with the work he would hardly see her. It was his view that nothing happened to get him back to work.
He said that he gradually began to feel stressed and depressed. He had eventually spoken with a state manager who told him that there was nothing in place to get him back to work. I understand that this was perhaps in about November 2019. He said that he wrote a letter to the Commissioner and when nothing happened he put in a compensation claim.
He said that, perhaps from June, he had been speaking with his doctor but he had not told the doctor how it was. By this time he had suicidal thoughts, was feeling down, moody and he had lost interest in his usual fishing activities including his committee activities and cancelled a fishing trip.
After submitting his compensation claim he said that within five or six days he received a letter advising that he was being transferred to Sydney. Mr Snook said “They can’t do it” but that it went on and on and he insisted that he would not move to Sydney. He said “I went sick” and “I dug my heels in” that it was an abuse of power. Eventually he said that he continued to dispute the transfer, they dropped it and he was then told he would be transferred to Perth at a lower rank. He said that there was no way he would do that and that he had no interest in living in Perth nor would he work at a lower rank.
He had asked about work in Geraldton but this request was declined. He said “I went sick again so I didn’t have to go to Sydney” and that he had never lived in the city and did not want to move to Perth. Ultimately, it was his view that they were going to keep going until he resigned. He said “In the end I cornered them” and his redundancy was eventually accepted.
When he saw Dr Jansen in July he said that he had agreed that he would go back to day shifts and that he would not have a problem with going on a Return to Work Program. In fact he then met with a rehabilitation provider about a return to work at Exmouth and he had been hopeful this would happen as by this time the OIC had left.
[64] R1/2–26
Under the heading “Conclusion”, Dr Edwards-Smith made the following comments:
In conclusion, Mr Snook presents with a history of fluctuating psychological symptoms. Review of the attached records do indicate some longer term anger management issues noting the consultation in 1998 and the report from Mills Oakley Lawyers referring to interpersonal issues in the workplace. Mr Snook indicated that he is aware of the Mills Oakley report and disputes the basis of this.
It was Mr Snook’s history that there had been unfair decisions made with respect to promotion of a colleague to the Officer in Charge. He had also been aware of the intention of his employer to commence a performance management process, however he had disputed this quite assertively and experienced symptoms after he was stood down from work in late January 2019. I note Dr Jansen’s opinion that at that time he had developed modest psychological symptoms of an Adjustment Disorder.
It is relevant to note that throughout the history Mr Snook clearly reverted to medical leave in the context of his complex difficulties and difference of opinion.
His symptoms reported to have deteriorated after he was unable to progress a Return to Work Program in late December 2019 with the commencement of requirement for antidepressant therapy. He cited ongoing delays in the return to work process and that matters further deteriorated after he was directed to transfer to Sydney.
These matters have been relatively complex noting Mr Snook’s anger at the rejection of his claim for workers’ compensation, his anger at the direction to transfer, his decision that he would not transfer and that he was denied the opportunity to return to work at Exmouth. He cited concomitant financial stressors as he was not receiving his overtime payments throughout this period.
Currently I thought Mr Snook’s emotional distress had considerably ameliorated since he was reviewed by Dr Jansen. He now has some clarity with respect to his future having accepted a redundancy from his position with the AFP and he is making some positive steps to relocate to Jurien Bay and considering although [sic] with uncertainty his future work options.
Asked to comment on:
when [the applicant] first commenced having psychological complaints, the nature of those complaints and the progress of his symptoms from January 2019 to date;
Dr Edwards-Smith advised:
He told me that he was angry on 22 January and the circumstances of the decisions made by the Officer in Charge during a storm and blackout but he blamed these decisions for his wife injuring her back. He said he expressed his dissatisfaction and anger at AFP colleagues and he then felt angry when he was directed to stand down from work.
It was his history to me that he then “went sick for six months”, that he “took the time off sick” as “a layer of protection”. “While I was on sick leave he couldn’t touch me”. In endeavouring to develop the symptoms he said that he did indeed feel so angry “that I wanted to punch them in the head” and was very agitated. I therefore agree with Dr Jansen that a diagnosis of Adjustment Disorder was appropriate at that time.
By June 2019, he indicated his symptoms had improved to the point where he could commence a graduated restricted return to work but they then further deteriorated when no such program directed with the many incidents as described regarding this process. He then went on to submit a claim for workers’ compensation and he became even more angry when he was transferred to Sydney.
Asked to provide her diagnosis of the applicant’s then-current psychological condition(s), Dr Edwards Smith advised:
Mr Snook currently has relatively modest psychological symptoms. It is challenging to be convinced that he has current psychological symptoms as I think many of the issues he currently reports relate to his personality. He reacts angrily to stressors and may project distress onto others, with a very strongly held black and white cognitive style.
The resolution of employment via redundancy I think has indeed simplified Mr Snook’s situation. Indeed it has been associated with a reduction in his anxiety and he has in fact fortunately been able to make some positive decisions for his future rather than continuing to ruminate in an unproductive way.
I see no reason to dispute that when Mr Snook saw Dr Jansen he initially had an Adjustment Disorder, subsequently his symptoms intensifying to a Major Depressive Episode particularly given that he experienced suicidal ideation; he currently he [sic] has only very modest symptoms.
… Hence, I think a diagnosis of an Adjustment Disorder would continue to be applicable. As per Attachment 1, a diagnosis of Adjustment Disorder is applicable in the context of psychological symptoms in response to an identifiable stressor associated with impairment. In this case the stressor being Mr Snook’s disagreement with his employer on many aspect[s] of his employment. Firstly of being stood down, subsequently of issues in clarifying a suitable return to work process and later regarding transfer. Throughout this period he also refers to financial stressors given the loss of income after being suspended.
Dr Edwards-Smith then opined:
I do think that Mr Snook being unsuccessful in obtaining the Officer in Charge promotion ultimately underpins his disgruntlement and dissatisfaction with his employer. It is also likely to be relevant with respect to the decision he was advised regarding performance management. However, I understand that this never eventuated and hence I could not find this was aetiologically significant.
Clearly being stood down from duty in January 2019 is the matter which triggered the onset of symptoms for which he sought medical treatment and hence I think on the background of his disgruntlement with the OIC which was indeed relevant to his behaviour on that day a significant trigger.
I think the matter of the pay increase is likely to have reinforced his disgruntlement with his employer rather than being causative. The matter of being denied a return to work to the Exmouth station I think was a significant trigger. By the time he was advised he was going to be redeployed I think his symptoms were already fairly clear and then exacerbated by this notice.
Dr Edwards-Smith was asked to comment on Dr Jansen’s view that there were two distinct conditions suffered by the applicant, the first arising when he was stood down in January 2019 and the second being when he did not return to work later in 2019. Dr Edwards-Smith’s view was:
I do not see the conditions as being distinct. When Dr Jansen reviewed Mr Snook in June 2019 the condition had not completely resolved but then rather gradually increased in the context of the complex interaction between Mr Snook and his employer and his underlying psychological response to these stressors.
Dr Edwards-Smith provided a supplementary report dated 16 February 2021.[65] She had, since her first report, been provided with additional medical records from Exmouth Hospital and Carnarvon Medical Group and a statement of Peter Chwal dated 3 February 2021.[66] She was asked to comment on whether that additional material changed her previously expressed views. Her response was:
Review of the additional documentation supports the opinion expressed in my report; that there are long standing patterns of emotional symptoms (as recorded from 1998) attributable to personality based patterns of responding to stress.
[65] R1/36–7.
[66] R1/118–122.
Dr Edwards-Smith provided a third report dated 28 June 2021.[67] She was asked about her views as to the applicant developing symptoms around the time of his not returning to work in mid-2019. She commented as follows:
[67] R1/40–4.
Mr Snook has experienced periods of mood disturbance associated with incapacity with a period of altered mood culminating in him being stood down due to issues and also noting associated anger and emotional symptoms in January 2019 and by the time he was reviewed by Dr Jansen. As per the report dated 30 May 2019 Dr Jansen considered that the condition had in essence resolved and he had a capacity for work.
He had, however, then experienced the gradual worsening of symptoms when he was not permitted to return to work despite being cleared to do so. By the time he was reviewed by Dr Jansen on 21 July 2020 as per the report dated 27 July 2020, Dr Jansen noted that the emotional symptoms had increased to the point where a diagnosis Major Depressive Episode was appropriate.
Appointments at Exmouth Hospital were potentially not entirely congruent with this noting the consultation of 30 October 2019 refers to non-medical issues “He is not motivated to go back”. “Still wants to get a compo claim going”. “We gave clearance to have him go back, he does not want to go back”.
…
On review of my own records, certainly it was the history provided to me that in January 2019 he had felt angry, aggressive, grumpy and ruminating but that his symptoms had improved to the point where although “still pissed off not as aggro” he had wanted to return to work other than with the officer in charge at Exmouth.
When he was not able to return to work he said that he felt stressed, suffering from depression and that from June 2019 he had experienced feelings when he was down in his mood, eating too much, experienced suicidal thoughts with worsening symptoms, stopped his usual activities such as fishing and camping and “couldn’t be bothered”. He had cancelled fishing trips with a rapid escalation when he was advised that he was being transferred to Sydney.
I do not dispute Dr Jansen’s assessment of Adjustment Disorder and then depression although I would consider these to vary in severity as ultimately of mood symptoms. However, by the time I had reviewed Mr Snook the core mood symptoms had in fact considerably improved, with some residual symptoms noting that he perceived ongoing stressors. Hence, I made a diagnosis of Adjustment Disorder at that time.
Ultimately the specific date of onset of the Major Depressive Episode is challenging. On the one hand I consider the symptoms occurring in January 2019 ultimately were mood-related symptoms of a lesser severity. On the other hand, he felt when he was not permitted to return to work later in 2019 his mood symptoms deteriorated again, although this is not entirely supported by the Exmouth Hospital records. It seemed that by December 2019 his symptoms met the diagnostic criteria of a Major Depressive Disorder.
As I indicated in my report, I did not however view the diagnosis of Adjustment Disorder and Major Depressive Disorder as being necessarily distinct categories.
Asked for any other general comment, Dr Edwards-Smith commented that:
Today having reviewed all of the medical information which has been available to me, I have also reviewed the report from Mills Oakley dated 15 June 2018 with respect to a study into Exmouth operations and the description of SPSO Snook’s conduct with references to disrespectful behaviour and difficulties in relationships with women.
Longer standing patterns of behaviour were noted which I consider would be congruent to underlying personality characteristics and which are likely to be relevant to any ongoing psychological responses to workplace issues.
Dr Jansen was examined at the hearing on his reports. He confirmed that when he examined the applicant on 23 May 2019, he assessed him to be two to four weeks away from being fit to return to work.[68] Asked whether the applicant receiving a medical certificate from Dr Grobbelaar five days after he examined him on 23 May 2019 certifying that the applicant was unfit for work until 30 June 2019 (see [50]–[51] above) was consistent with his discussions with the applicant on 23 May, Dr Jansen’s response was:
Well, unless there was a very rapid deterioration in his symptoms, then that wasn’t consistent.[69]
[68] transcript at 148.
[69] transcript at 148.
In the end the only material difference between Dr Edwards-Smith and Dr Jansen’s analysis was that Dr Jansen was of the view that there were two injuries: one on or immediately after the applicant was stood down on 23 January 2019, and a second when he was not returned to work when certified fit to do so in June 2019. Dr Edwards-Smith commented on this difference in her report dated 18 November 2020 (see [80] above) and was asked at the hearing to comment on Dr Jansen’s assessment of there being two injuries. Her evidence was as follows:
COUNSEL: Dr Jansen’s opinion in his report was – in his initial report, that is the 20 – sorry, 30 May 2019, recorded or that appointment, sorry, was on 23 May 2019 and Dr Jansen recorded that he expected the applicant to be in remission from the adjustment disorder within two to four weeks. Having regard to what you – the history you took about how the applicant was in June of 2019, do you – what do you consider to be the continuum of the conditions that were first described by Dr Jansen?
DR EDWARDS-SMITH: Well, it would seem that Dr Jansen’s hopeful prognosis didn’t come to pass. That the symptoms did not resolve completely and, in fact, deteriorated over the ensuing months.
COUNSEL: Is that consistent with the opinions that you expressed in your report?
DR EDWARDS-SMITH: Yes, it is.[70]
[70] transcript at 143.
CONSIDERATION
As I noted above, while the applicant’s claim or claims seem to be straight-forward, identifying the required legal elements for the claim or claims from the applicant’s evidence and the workers’ compensation claim forms as submitted, is not easy. In particular, the event or events which caused the applicant the injury are not clearly identified by the applicant. That is not meant as a criticism of the applicant, just a recognition, firstly, of the fact that the applicant is not legally represented and, secondly, of the fact that the nature of psychological injuries is such that often it not easy, even for the person claiming the injury, to specifically identify the stressors or the causes of the claimed condition.
I am satisfied on the evidence, particularly the evidence of Dr Jansen and Dr Edwards-Smith, that the psychological condition suffered by the applicant was the result of either his standing down by Ms Faithfull on 23 January 2019 or his not returning to work between June 2019 when he was certified as fit to return to work and his making his claims for compensation on 9 December 2019 or a combination of those stressors. Insofar as there was any material difference between the opinions of Dr Jansen and Dr Edwards-Smith, I prefer the evidence of Dr Edwards-Smith that there was a single injury suffered by the applicant from which he did not recover and that his symptoms deteriorated after June 2019 when he did not return to work (see [85] above). I also note that in his report dated 5 July 2021, Dr Jansen stated that “[h]is adjustment disorder is likely to be significantly linked to being stood down from duty following the January 2019 incident” (see [73] above). In closing, Mr Burgess for the respondent summarised the respondent’s case as being:
… the respondent accepts that the applicant has suffered from a psychological condition. It’s been diagnosed by Dr Edwards-Smith, and Dr Jansen as being an adjustment disorder which later met the threshold for a diagnosis of major depressive episode. And the respondent accepts that the commencement of that condition was significantly contributed to by the applicant’s employment.[71]
[71] transcript at 163.
The following exchange then took place:
TRIBUNAL: I suppose the question is which condition.
COUNSEL: Yes.
TRIBUNAL: Is the major depressive disorder or the adjustment disorder?
COUNSEL: Well, the respondent says that they are one and the same condition…There’s simply different diagnostic labels that are given to it, depending on the severity of the symptoms associated with the condition.
TRIBUNAL: Yes. So I suppose what the respondent is saying is it is effectively the same injury - sorry. With that caveat, the same ailment with two different diagnoses because the severity of the symptoms increased over a period.
COUNSEL: Yes. That’s correct.[72]
[72] transcript at 164.
I find that the cause of the psychological injury suffered by the applicant was his being stood down on 23 January 2019. That is, in effect, the claim made by the applicant in the second of the workers’ compensation claims lodged on 9 December 2019 identified in [26] above. It is the “workplace incident” described by the applicant to Dr Grobbelaar the following day upon which Dr Grobbelaar issued the first certificate of capacity (see [65] above) which commenced what the applicant described as “an extended period of sick leave”.[73]
[73] applicant's statement, R1/68.
Based on the histories given to them by the applicant, both Dr Jansen (see [52] above) and Dr Edwards-Smith (see [76] and [79] above) identified the applicant’s standing down by Ms Faithfull on 23 January 2019 as being the proximate stressor causing the initial injury or onset of symptoms.
Therefore, the first issue for determination is whether Ms Faithfull’s standing down of the applicant on 23 January was “reasonable administrative action taken in a reasonable manner”.[74] I find that it was.
[74] SRC Act s 5A(1).
The standing down is the type of administrative action covered by sub-ss 5A(2)(c), (d) or (e), particularly (c). The applicant’s behaviour towards other staff on the base earlier that day was unacceptable and was not the first time that the applicant had behaved in an aggressive and inappropriate manner. I do not accept the applicant’s evidence at para 100 of his statement (see [46] above) that his abuse on that day was not directed at the two PSOs to whom he spoke, but rather was a reference to the “lazy AFP officers … sitting on their lazy arses in the office”. He had characterised Ms Faithfull’s assertion that he had called the two PSOs “fucking lazy” to be a lie, and at the hearing he also strongly denied saying that to the PSOs.[75]
[75] transcript at 28.
These denials are belied by what he obviously told Dr Edwards-Smith when he saw her on 16 November 2020. In her report dated 18 November 2020, under the heading “History”, she reported the history given by the applicant to her as being:
The following day he said that he had picked his wife up from work. His wife works as a contract cleaner at the base. He said that someone should have been posted on the gate from the AFP but were not. He also said that they were putting locks on gates and he asked them “what the f…ing hell they were doing”. He said his wife had hurt her back pushing a gate and on his way an AFP car flagged him down and he said that they had a conversation. He asked them “what you [sic] doing sitting on your lazy ass doing nothing to help anyone” and he acknowledged that he used “a half a dozen “f” words”.[76]
[76] R1/9.
The above history is completely consistent with Ms Faithfull’s evidence and inconsistent with both the applicant’s written statement and his evidence at the hearing.
In the present case, there can be no argument that the action taken by Ms Faithfull on 23 January 2019 in standing the applicant down was not “administrative action”. As noted above, such action is specifically defined as “administrative action” by s 5A(2)(c) of the SRC Act and would probably also come within the operation of s 5A(2)(d). The issues for determination are: (a) whether such action was reasonable; and (b) whether the action was taken in a reasonable manner. I find that the answer to both those questions is “yes”.
The applicant’s behaviour on 23 January 2019 towards the PSOs was clearly unacceptable and was behaviour which put the health of those PSOs at risk. The applicant’s own descriptions of his conduct on that day (see [93] above) and his admission that the standing down was the result of his “anger and stress issues” (see [6] above), together with the applicant’s history of behavioural issues, vindicate Ms Faithfull’s action in standing the applicant down.
I also find that the action taken by Ms Faithfull was taken in a reasonable manner in the circumstances. Following the incident with the PSOs in the afternoon of 23 January 2019, Ms Faithfull had tried to contact the applicant to avoid him coming onto the base for his nightshift. Those efforts to contact the applicant had been unsuccessful and Ms Faithfull’s action of delivering the suspension to the applicant as described by Ms Faithfull as set out in [42]–[45] above was, in the circumstances, reasonable.
Even if I were to accept that there was a separate injury arising out of the applicant’s non-return to work after being certified fit in June 2019, I find that the administrative action taken by the respondent around that return to work was reasonable and taken in a reasonable manner.
Commander Wegg’s evidence as set out in [61] above reflects reasonable action taken in a reasonable manner in the circumstances. The respondent was confronted with the applicant’s attitude that he would only return to work at the Exmouth base if Ms Faithfull, the OIC, was not there. Further, as Commander Wegg stated, she and the other AFP officers responsible for the applicant returning to work were understandably concerned about the “impact on members” at the Exmouth base, a significant proportion of whom had expressed concerns about working with the applicant, and the impact on the welfare of the base OIC, Ms Faithfull. In any event, the applicant’s attitude that he was not prepared to work under Ms Faithfull and was happy to wait until Ms Faithfull moved on (see [59] and [75] above) effectively meant that the respondent could not return him to work in Exmouth. I accept the evidence of Commander Wegg that there were no suitable positions available for the applicant, in particular in Geraldton where the applicant had indicated he would be prepared to transfer. In the end the only option available was offering the applicant a position in New South Wales,[77] which the applicant did not accept.
[77] See para 56 of Commander Wegg’s statement.
It may be that the respondent could have handled the discussions with the applicant about his returning to work differently. There was evidence from the applicant consistent with the evidence of Mr Davies and Mr Halligan that there were difficulties in the communications between the applicant and the respondent around this time, however, I accept that in the circumstances, the respondent’s handling of the applicant’s return to work was not unreasonable or unreasonably handled. In that regard I note the comment of the Tribunal in Beasley and Comcare[78] at [118]:
… reasonable action does not have to be perfect but, as observed by Professor Creyke, in Re Wilson and Comcare [2010] AATA 396, it has to be “tolerable and fair”.
[78] [2012] AATA 411.
In Georges and Telstra Corporation Ltd[79] the Tribunal observed at [23] that:
In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further, the circumstances of the individual that could have become known by simple enquiry should be considered. I would also observe that administrative action in an organisation is rarely taken in isolation of a context that creates the need for administrative action. Such context may be derived from factors either external and/or internal to the organisation and the administrative action taken that relies upon such circumstances must document such, in order that administrative actions that flow appear to be grounded on detailed considerations…. [T]he 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 are usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instructions that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action is taken.
[79] [2009] AATA 731.
I agree with the sentiments expressed in the above cases.
In the present case it might be that, with the benefit of hindsight, the applicant’s return to work, or more accurately the non-return of the applicant to work, could have been handled differently. I do not accept, however, that given the particular circumstances of this case, that the manner in which the applicant’s return to work was handled was unreasonable. The respondent was placed in a very difficult position by the applicant’s attitude that, in effect, he wanted only to return to work at Exmouth, and then only if the OIC, Ms Faithfull, was not there. I accept that the respondent made reasonable efforts to find an alternative posting for the applicant but that none was available. Quite rightly, given the applicant’s history of anger management issues, his previous run-ins with those in charge of him and the issues that other employees at the Exmouth base had working with the applicant, the return of the applicant to work at Exmouth was not a viable option. While there do appear to have been some communication issues between the applicant and designated contacts in the AFP during this period, I am satisfied that the action taken by the respondent in relation to the applicant’s return to work were reasonable in the circumstances and that the action was undertaken in a reasonable manner.
CONCLUSION
The respondent admits that the applicant has suffered a psychological condition of an adjustment disorder which later developed into a major depressive episode.[80] I find that the psychological conditions suffered by the applicant were sustained in January 2019 when he was suspended from work by Ms Faithfull. The respondent further admits that the applicant’s condition was significantly contributed to by his employment with the AFP. I find that for the reasons set out above, the applicant’s psychological condition was the result of reasonable administrative action taken in a reasonable manner. Even if the applicant’s psychological condition was the result of his not being returned to work, I find that the respondent’s actions in relation thereto were reasonable administrative action taken in a reasonable manner. I therefore find that the exclusion of liability under s 5A(1) of the SRC Act applies.
[80] respondent's SFIC para 53.
DECISION
The decision dated 23 April 2020 which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of “depression / anxiety / work related stress” is affirmed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 14 March 2022
Dates of hearing: 21–23 September 2021 Applicant: In person Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: HBA Legal
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