Solway and Australian Postal Corporation
[2009] AATA 386
•29 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5505
GENERAL ADMINISTRATIVE DIVISION ) Re DEBBIE ANNE SOLWAY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date29 May 2009
PlaceBrisbane
Decision The Tribunal:
1. sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant, in accordance with the Safety, Rehabilitation and Compensation Act, in respect of the condition of an adjustment disorder with anxiety and depressed mood.
2. orders the respondent to pay the applicant’s costs, of and incidental to, the proceedings to be taxed if not agreed.
............Signed..................
Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – claim of sexual harassment at work causing psychiatric condition – applicant’s account of critical events not accepted – basic account given is however correct – flawed perception provides requisite causal relationship – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14 and 108A
Wiegand v Comcare [2002] FCA 1464; 72 ALD 795
REASONS FOR DECISION
29 May 2009 Deputy President P E Hack SC Introduction
1.The applicant, Ms Debbie Solway, is employed by the respondent, Australian Postal Corporation, as a mail officer at the Northgate Mail Centre. In these proceedings Ms Solway says that another Australia Post employee sexually harassed her in the course of her employment with the consequence that she developed a psychiatric condition described as an adjustment disorder with anxiety and depressed mood. She contends that Australia Post is liable to pay her compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of that condition.
2.Australia Post rejected her claim for compensation and that decision was affirmed on reconsideration.
3.Ms Solway seeks a review of the decision in this Tribunal.
The medical evidence
4.Because there is controversy about the events surrounding the incident of 4 July 2007 it is as well to commence with an examination of the medical evidence about which there is no dispute. The incident of which Ms Solway complains is said to have occurred around 8.30 p.m. on 4 July 2007. Ms Solway first attended her general practitioner, complaining of consequences of the incident, on 27 July 2007, a little over three weeks afterwards. Her general practitioner, Dr Mark Goss, diagnosed her as suffering from a “reactive mixed depressive-anxiety disorder”. He regarded her as having “unresolved anxiety and depression” in response to the 4 July 2007 incident. Dr Goss saw Ms Solway again on 29 August 2007 when he considered that she was showing signs of ”persisting moderately severe depression”.
5.Ms Solway underwent counselling with a clinical psychologist between September and December 2007. That treatment appears to have been of benefit to her and she returned to work, so far as I can tell, in about October 2007.
6.I have the considerable benefit of the evidence of Dr Jill Reddan, a consultant psychiatrist, who provided a report dated 22 July 2008 and who gave evidence at the hearing. Dr Reddan concluded that Ms Solway was a person with “significant personality vulnerabilities”. Of particular importance in the present context are Dr Reddan’s observations about Ms Solway’s personality. For reasons set out in her report Dr Reddan concluded that Ms Solway:
“…has great difficulty in relationships, as she is sensitive to perceived criticism and it is likely that she overinterprets or misinterprets others’ statements, non-verbal communications and behaviour. Her self-esteem is low and she lacks confidence. She also has difficulty in actively dealing with disagreements or conflict in a mature way. Her approach to solving problems is a passive one and she views herself not as a participant in her outcomes but as a victim.”
Dr Reddan spoke of Ms Solway’s perception of having been persecuted by her supervisors and managers and gave an example of Ms Solway inferring criticism from the fact that a supervisor read a document to her on one occasion with an expressionless face. She made reference to Ms Solway’s:
“thought content [revealing] persecutory ideation and a tendency to draw connections and conclusions from very little information, and from first impressions.”
7.Dr Reddan concluded that Ms Solway developed some anxiety and depressive symptoms which probably amounted to an adjustment disorder with anxiety and depressed mood. In Dr Reddan’s opinion, the development of that condition “was materially contributed to by a couple of incidents at her work place which occurred on or around 4 July 2007”. Ms Solway’s reaction was, in the view of Dr Reddan, “largely determined by [her] personality factors…”
The legislation
8.By a combination of ss 14 and 108A of the Safety, Rehabilitation and Compensation Act Australian Postal Corporation, as a licensed Commonwealth authority, is liable to pay compensation to its employees in accordance with that Act in respect of an injury suffered by the employee if the injury results in death, incapacity for work or impairment. “Injury” is defined in s 5A(1) of the Act as, materially[1], “a disease suffered by an employee”. ”Disease” is defined in s 5B(1) of the Act as meaning an ailment suffered by an employee (or the aggravation of an ailment),
[1]There being no suggestion that the “reasonable administrative action” exception has any application.
“that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”
“Significant degree” means “a degree that is substantially more than material”[2]. Sub-section 5B(2) lists, non-exhaustively, matters that may be taken into account when determining whether an ailment was contributed to in a significant degree by employment. The matters are:
“(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.”
[2]See s 5B(3), Safety, Rehabilitation and Compensation Act.
9.Reference was made in the course of submissions for Ms Solway to decisions in other jurisdictions where adjectives like “significant” and “substantial” are used to qualify contribution. There was, as well, a submission that Ms Solway’s condition, if not a disease as defined, came within the second limb of the definition of injury.
10.In my view it is unnecessary to consider these issues given the way in which the case for Australia Post was put. Mr Clark, counsel for Australia Post, accepted that Ms Solway’s condition amounted to a disease provided that it satisfied the requirement of contribution to a significant degree. And there was no suggestion, whether in cross-examination or otherwise in the evidence, of any other event or circumstance or activity unrelated to employment that might have contributed to Ms Solway’s condition. Moreover, whilst Dr Reddan referred to Ms Solway’s “personality vulnerabilities” as determining the development of the condition she did not consider that they caused or contributed to it.
11.The case for Australia Post focussed upon the circumstances of the incident of 4 July 2007; the incident of sexual harassment of which Ms Solway complains, it was argued, did not take place.
The incident
12.With that exception, there is no controversy about the essential facts. The incident that Ms Solway says occasioned her condition occurred in the General Duties Office at the Mail Centre. Ms Solway worked an afternoon shift commencing at 4.30 p.m. and concluding at 12.21 a.m. the following day. Her immediate supervisor was Ms Lorraine Woolley, a Process Line Leader. Further up the hierarchy was Ms Erin McElroy, the Mail Processing Co-ordinator. The Floor Manager was Ms Mary-Ann Tyack. The other actor in these proceedings is Mr Geoffrey Spicer who was, at the time, a Process Line Leader in a different section of the Mail Centre.
13.The General Duties Office, popularly described as “the fishbowl”, is used as an office for supervisors. It has glass on three sides so that supervisors can see what is taking place. Within the General Duties Office are desks for supervisors to work and spaces for storage of office equipment and suchlike.
14.Around 8.30 p.m. on 4 July 2007 Ms Solway was experiencing pain in her shoulder. She had hurt her arm and shoulder at work approximately two weeks earlier. Her supervisors were made aware of the injury and Ms Solway had been put on restricted duties. When she felt pain on this evening she notified Ms Woolley. Ms Woolley in turn notified Ms McElroy of Ms Solway’s complaint and that she needed first aid. Ms Solway attended the first aid office and saw the first aid officer Mr Paul Kliese. Mr Kliese provided her with a heat pad to apply to her shoulder. On the instructions of Ms McElroy, Ms Woolley told Ms Solway to sit in the General Duties Office whilst she applied the heat pad. Ms McElroy did this, she said, so that she could keep an eye on Ms Solway on what was a very busy night. It was Ms McElroy’s intention to finish the task that she was then performing and to go to the General Duties Office to see how Ms Solway was progressing, however she was prevented by circumstances from doing so. As it happened, she did not see Ms Solway again that evening.
15.Ms Solway went to the General Duties Office. She needed to keep the heat pad applied to her shoulder but there were no high-backed chairs in that office. It was awkward to hold the pad in place. She decided to sit on the floor. The place where she sat was one where three filing cabinets had been built under, and forming, a desk which was built against the rear, solid wall of the office. Ms Solway said that she sat with her back against the three-drawer filing cabinet closest to the door. To her left, as she sat there, was a two-drawer filing cabinet and a further three-drawer filing cabinet. Above the desk at that point were pigeon-holes for supervisors to store personal items. At that point the desk turned at right angles to be positioned against the side wall where there was another desk area with a computer monitor and keyboard.
16.Ms Solway sat on the floor with her feet extended into the general traffic area of the Office. It appears to me from the photographs provided that her feet must have extended into the area where persons walking to the computer terminal would need to walk, thus requiring that they walked over her feet or legs. Her evidence was that a number of supervisors came into the Office whilst she was in this position and found it necessary to walk over her. Ms Solway found this embarrassing, especially “when they would laugh and ask what I was doing on the floor.” Her evidence on these matters was not challenged.
17.Whilst she was in that position Mr Spicer came into the Office to use the computer. In doing so Mr Spicer was standing to the left, and in front of, Ms Solway but her legs were behind him. The major factual controversy concerns the actions of Mr Spicer once he had completed his tasks at the computer terminal. The accounts given by Ms Solway and Mr Spicer are diametrically opposed.
18.Ms Solway says that Mr Spicer walked away from where he had been working at the computer terminal, initially stood to her left and then stood over her, straddling her and facing her, and bent over as if he were accessing his pigeon-hole on the wall that was behind the desk behind her. She says that his groin area was immediately adjacent to, and in very close proximity to, her face. She was “embarrassed and humiliated” by this. She said that she had said something like “Do you mind, this doesn’t look good” to Mr Spicer. He did not reply to her but then walked out of the Office.
19.For his part, Mr Spicer completely denies this account of events. He says that he went into the Office and had some inconsequential conversation with Ms Solway about the reason for her sitting on the floor. He stepped over her legs to use the computer terminal which he did whilst standing. He stood at the computer terminal for a short time during which he noticed that Ms Solway had slipped further down against the drawers such that her feet now protruded further into the floor behind him. He left the computer terminal, stepped across Ms Solway’s legs and left the office. When he spoke to Ms Tyack shortly after this event he could recall Ms Solway saying something to him. Ms Tyack has a note that he said “that Deb had joked that people might get the wrong idea if they saw her on the floor while Geoff was standing.” Ms Spicer could not now recall this having been said by Ms Solway but accepted that it was likely to have been said having regard to Ms Tyack’s note of her conversation with him.
20.Not long after the incident Ms Solway went on her meal break. She says that she was upset about the incident and left work early, saying that her shoulder was hurting too much for her to continue working. The following Ms Solway had a rostered day off. She next returned to work on Friday, 6 July 2007.
21.On that day Ms Solway saw the Human Relations Manager and complained to her about having been required to sit on the floor. She had a quite lengthy conversation but made no mention of any conduct on the part of Mr Spicer. Her evidence makes it plain that she did not hold the Human Resources Manager in high regard. Later that same day she saw the union delegate, Mr Nicholson, and complained to him, she said, about “everything that had happened” to her on the evening of 4 July 2007. She says, as well, that on this day she attempted to speak to Mr Spicer about the incident but that he was dismissive of her. There is no doubt that Ms Solway spoke to Mr Spicer about the incident within a few days of it occurring; Mr Spicer accepts that there was a short conversation. But I am satisfied that Ms Solway is mistaken in thinking that this conversation occurred on Friday 6 July 2007 as Mr Spicer did not work on Fridays generally and the wage records satisfy me that he did not work on that day.
22.On Monday 9 July 2007 Mr Nicholson took up Ms Solway’s complaints with Ms Tyack, reporting, according to Ms Tyack’s note that Mr Spicer “had dangled his genitals” in Ms Solway’s face. Later that day Ms Tyack raised the allegation with Mr Spicer who denied any such incident. He told Ms Tyack of having to step over Ms Solway’s feet initially to get to the computer terminal and of having to step over her legs later after she had slumped down further.
23.Following the incident Ms Solway attended her local medical practice on 9, 12, 16, 19 and 26 July 2007 seeking treatment regarding her shoulder injury. On none of these occasions did she make any complaint of sexual harassment although she did mention, on one occasion, having been “refused use of first aid room”. The first complaint was made to Dr Goss on 27 July 2007 and is dealt with in paragraph [4] above. According to Ms Solway what prompted her need to attend Dr Goss was having seen Mr Spicer, and having to work in close proximity to him, the previous evening. That upset her and she started to cry. She went and locked herself in the toilets. Ms McElroy was told that Ms Solway was apparently distressed and came to talk to her. Eventually Ms Solway went to the General Duties Office. She spoke to Ms McElroy and told her that she wanted to go home. There was a discussion about the need for Ms Solway to complete a form before she could leave early. There is controversy between Ms Solway and Ms McElroy about the terms of the discussion. I need not decide the issue. Ms Solway left the Northgate Mail Centre.
24.Ms Solway lodged her claim for compensation on 20 August 2007. It was refused on 5 September 2007 and that decision was affirmed on reconsideration on 16 October 2007.
The credibility of witnesses
25.The focus of much of the submissions was upon the credibility of the principal protagonists, Ms Solway and Mr Spicer. It was not suggested that there was any reason to doubt the evidence of the other Australia Post witnesses or the medical witnesses, Dr Goss and Dr Reddan.
Mr Spicer
26.Mr Keim SC, who led Mr Rebetzke for Ms Solway, submitted that I ought conclude that Mr Spicer had confronted Ms Solway in the manner that she alleged and that his denials of doing so were dishonest. He relied, in particular, upon the fact that, when speaking to Ms Tyack shortly after the incident Mr Spicer had recounted two details that supported Ms Solway’s account but that he had omitted those details when he subsequently gave an account of events to an Australia Post investigation some time after September 2007 and when he gave evidence before me.
27.The first of these details, as recorded by Ms Tyack, was that when asked by Mr Spicer why she was sitting on the floor in the Office, Ms Solway had said that she had been told to sit there. This detail, submitted Mr Keim, supported Ms Solway’s version and it must have been left out of subsequent accounts for sinister reasons. The account given subsequently by Mr Spicer was that he had asked Ms Solway why she was sitting on the floor and that she had “said something like ‘they won’t let me in the first aid room’ or ‘there are no comfortable seats in the first aid room’”. He told her that she should be in the first aid room.
28.I have difficulty in accepting that the subsequent account is any less favourable to Ms Solway. In each account Ms Solway’s core grievance – that she was in the office rather than the first aid room – is acknowledged.
29.The second claimed difference is the omission of Ms Solway’s comment that “people might get the wrong idea”. That comment, Mr Keim submitted, was explicable only on the basis that it must have been prompted by conduct that was overtly sexual and, that being so, Mr Keim asked rhetorically, why would Mr Spicer omit that detail if nothing overtly sexual had taken place? That argument assumes, wrongly in my view, that there was only one rational reason why Ms Solway would make such a comment. I do not accept that that is so. Ms Solway was sitting on the floor in the supervisors’ office. Persons who came into the office had to step over her. She was, she said, already feeling humiliated because her injury and pain had been disregarded and she had been “made” to sit on the floor. I do not doubt that she found it even more humiliating to sit on the floor as people came in and out of the Office. The comment, if it were made in the terms reported by Mr Spicer, is also explicable on the basis that the fact that Ms Solway was sitting on the floor, at the feet of a standing male supervisor, presented Ms Solway in a humiliating light.
30.Moreover, it needs to be borne in mind that Ms Solway’s account of what she said is slightly different. On her account she said ”this doesn’t look good”. That comment is more consistent, I would have thought, with Mr Spicer’s account than with the notion that it signified some overtly sexual behaviour.
31.Ultimately, it seems to me that the difference between the two accounts given by Mr Spicer is readily explicable on the basis that human recollection is not perfect. I cannot see anything sinister in the slight changes to Mr Spicer’s accounts of events.
32.Moreover I was favourably impressed by the way in which Mr Spicer gave his evidence. To the extent that these matters can be gauged accurately from the demeanour of a witness my impression of Mr Spicer was that he was honest in his account of events. It is true that, at times, he tended to display some minor irritation at some of the questions asked of him when giving his evidence, particularly the series of questions that involved a close examination of his girth. He was, I think, entitled to express irritation at questions of this nature and I would not, to use Mr Clark’s expression, “mark him down” for doing so.
33.On the case advanced by Ms Solway, what took place could not amount to an accidental event; if she is to be believed it must have been a conscious and intended gesture by Mr Spicer to thrust his groin towards her face. Conduct of that kind seems to me to be quite inconsistent with the impression I gained of him in the witness box. Moreover, his reporting to Ms Tyack of Ms Solway’s comment seems out of place on the part of one who had assaulted Ms Solway in the manner she reported. Had Mr Spicer acted in the manner alleged one would not have expected him to have reported the comment of Ms Solway about people getting the wrong idea. That he reported the comment confirms my impression that Mr Spicer did nothing untoward but that Ms Solway perceived that he had.
34.In the result I conclude that Mr Spicer’s evidence is reliable and that his denial of the conduct alleged by Ms Solway ought be accepted. I am satisfied that Mr Spicer did not straddle Ms Spicer in the manner that she alleges.
Ms Solway
35.Acceptance of Mr Spicer’s denial necessarily involves a rejection of Ms Solway’s account of the critical events but, contrary to the submissions of Australia Post, that is not the end of the matter. It remains the case that an experienced psychiatrist engaged by Australia Post has reached the conclusion that Ms Solway developed an adjustment disorder that was contributed to by “a couple of incidents at her work place which occurred on or around 4 July 2007”. And the evidence of Dr Reddan suggests that Ms Solway “overinterprets or misinterprets others’ statements, non-verbal communications and behaviour”.
36.Even though I reject Ms Solway’s account of the critical event there is no doubt that the basic account given by Ms Solway is correct. What I regard as critical in resolving the matter is Ms Solway’s perception of the events of that evening.
37.The decision of von Doussa J in Wiegand v Comcare[3] is authority for the proposition that an employee’s perception of events, even a flawed perception, may provide the requisite causal relationship. In Wiegand the applicant sought compensation for a depressive disorder brought about, he said, by “defamation and victimisation” and “discrimination” in his workplace. The Tribunal had found against Mr Wiegand on the basis of a medical opinion that had proceeded on the footing that,
“…as a matter of law, an incident or state of affairs to which the employee was exposed in employment will only constitute a contributing factor to an aggravation of an ailment if the incident or state of affairs was objectively unreasonable - in other words, that it would justify in the mind of an employee of ordinary disposition and mental health the perception held by the employee making the claim.”[4]
This view, his Honour held, was incorrect. What was required was,
“…that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.”[5]
[3][2002] FCA 1464; 72 ALD 795.
[4]Wiegand at [29].
[5]Wiegand at [24].
38.His Honour concluded[6]:
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
[6] Wiegand at [31].
39.Necessarily the contribution, under the requirements of the present legislation, must be “to a significant degree” rather than “material”.
40.Here, as it seems to me, there was an incident or a state of affairs that actually occurred. Ms Solway had a sore shoulder. She sought treatment for it. For reasons that were valid at the time Ms McElroy considered it best if she rest with the heat pad in the General Duties Office. In hindsight that was not a wise choice as there were no high-backed chairs that might have enabled Ms Solway to hold the heat pad against the affected area of her shoulder. The result was that the practical solution for Ms Solway was to sit on the floor and rest her back and the heat pad against the vertical surface of the desk drawers. But Ms Solway has a personality that “overinterprets or misinterprets others’ statements, non-verbal communications and behaviour” with the result that she considered that she had been “made” to sit on the floor in the Office rather than, as she would have preferred, being allowed to sit in the first aid room. She interpreted malice into the situation where Ms McElroy had meant none but had been distracted by other circumstances.
41.Being “made” to sit on the floor and not being allowed to use the first aid room humiliated and embarrassed her. A more robust personality might not have been concerned but, as Dr Reddan pointed out, Ms Solway has a very fragile personality, one that has a self-perception as a “victim” rather than as a participant.
42.The humiliation continued for Ms Solway as supervisors came in to the Office and they were required to step over her. They were amused by her predicament but, no doubt, that merely magnified the sense of humiliation. Finally, Mr Spicer came in and stepped over Ms Solway to access the computer terminal. When he turned to leave, he was required to again step over Ms Solway. In so doing his groin area was relatively close to where Ms Solway’s face was, perhaps a distance of a metre or so, although I am satisfied that Mr Spicer was not intending, in any way, to harass or embarrass Ms Solway. He simply stepped over her. But Ms Solway perceived that as sexual harassment even though, objectively viewed, it was not. Ms Solway made a comment that reflected her subjective perception of events however Mr Spicer, whose perception was more accurate, ignored the comment. Insight is gained into Ms Solway’s thinking at the time from her statement where she describes what happened after she spoke to Mr Spicer in this way:
“He didn’t reply and just walked out without saying a word. No acknowledgment, no apology, nothing. I sat there for a while in shock realising what had just happened.”
43.It seems plain from the evidence of Dr Reddan that Ms Solway has a capacity for misinterpreting behaviour and a capacity to cast herself in the role of victim. As it seems to me Ms Solway has misinterpreted Mr Spicer’s actions in stepping over her legs as sexual harassment. Her perception of the events, whilst objectively unreasonable, was genuinely held such that she believed and continues to believe in the truth of her perception. It would appear that Ms Solway was able to cope in the initial period after the incident of 4 July 2007 but that having to be in close proximity to Mr Spicer on the evening of 26 July 2007 caused the onset of symptoms observed by Dr Goss the following day and in the subsequent consultations.
44.The evidence of Dr Goss and Dr Reddan satisfies me that the condition suffered by Ms Solway was a reaction to her perception, accurate in part and flawed in part, that she had been humiliated and badly treated in her employment in the course of the events of 4 July 2007. I am thus satisfied that Ms Solway suffered from an adjustment disorder with anxiety and depressed mood and that that condition is an ailment that was contributed to, to a significant degree, by her employment by Australia Post.
45.If follows that I would set aside the decision under review and substitute a decision that Australia Post is liable to pay compensation to Ms Solway, in accordance with the Safety, Rehabilitation and Compensation Act in respect of that condition. Mr Clark accepted that costs ought follow the event so Ms Solway should have her costs.
I certify that the preceding 45 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...................Signed................................................
Lynne Stalley, AssistantDates of Hearing 11 - 12 May 2009
Date of Decision 29 May 2009
Counsel for the Applicant Mr SJ Keim SC & Mr G Rebetzke
Solicitor for the Applicant Susan Moriarty, Solicitors
Counsel for the Respondent Mr CJ Clark
Solicitor for the Respondent Sparke Helmore
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