Stuart Gordon and Comcare
[2012] AATA 578
[2012] AATA 578
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2459
2011/2460
2011/50682011/5069
Re
Stuart Gordon
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 August 2012 Place Brisbane The reviewable decisions are affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Work related psychiatric condition – excluded factors – failure to obtain a posting – material contribution – reasonable administrative action – decisions affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27.
CASES
Hart v Comcare (2005) 145 FCR 29.
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 August 2012
Mr Stuart Gordon is an Australian Federal Police (“AFP”) officer. He says he has a psychiatric condition that is connected with his work. He sought compensation under various provisions of the Safety, Rehabilitation and Compensation Act 1988. Comcare, the respondent, denied it was liable under s 14 of the Act, and declined to pay compensation under ss 16, 19, 24 and 27.
Mr Gordon says his compensable condition (his medical experts say it is major depressive disorder and generalised anxiety disorder, or – in the alternative – chronic adjustment disorder) arose out of his experience working in the Canberra communications centre for the AFP in 2008. He says he cracked under the pressure in that environment. He says the pressure was made worse by an absence of training and support. He also pointed to a bad experience while working at the AFP’s Jervis Bay post in 2006. He says his time in that posting was marred by workplace conflict.
Comcare says if the applicant’s psychiatric condition – however it is characterised – can be connected to his work, then it arose partly out of factors that are excluded under the Act. In particular, Comcare refers to:
(a)a failure to obtain a promotion or transfer or other benefit (if the condition arose before 13 April 2007); or
(b)management conduct that amounted to reasonable administrative action within the meaning of the Act (if the conduct arose after 13 April 2007).
FACTUAL BACKGROUND TO THE CLAIM
Mr Gordon was a member of the Victorian police force until his resignation in late 2003. He resigned in order to join the AFP. He said in his evidence at the hearing that his discussions during the recruitment phase left him with the clear understanding he would be posted to work in Brisbane when he commenced work with the AFP. (I note the AFP recruiters expressly denied the applicant was promised a posting to Brisbane: see exhibit one at pp 268 – 269.) He moved with his wife to the Sunshine Coast in December 2003. The couple had bought an investment property there some time before. His elderly parents moved to the Sunshine Coast to be near the family. But he says he subsequently learned he was to be offered a posting to work in community policing in the Australian Capital Territory. He said in his evidence that he was annoyed he did not receive the posting he had been led to expect, but he insisted he reconciled himself to the reality of the situation without a great deal of fuss. He accepted a formal offer of employment on that basis in May 2004 and began work in Canberra in August of that year. He sold his home in Buderim on the Sunshine Coast and subsequently bought a residence in Canberra.
The applicant was based at the Tuggeranong station doing general duties work until December 2005. By all accounts, he was a highly regarded and capable officer although even then his supervisors noted his tendency to express negative views about AFP management: see, for example, the statement of Sgt Crocker (as he then was) at exhibit one at p 193. Mr Crocker recalled the applicant:
“… often voiced his dislike of the AFP to the other members, which became very difficult to manage around junior members of the team. He often talked about returning to Queensland and his general dislike of ‘management’ and the broader AFP. I was of the opinion that Stuart felt the AFP owed him for not being sent to Queensland, and he often vented his anger.”
Mr Gordon agreed in his oral evidence that he did not hold back in his criticisms of AFP managers throughout this period, although he insisted he did not hesitate to make positive comments about aspects of the job. I also note Mr Crocker (amongst others) insisted he had a very high regard for Mr Gordon’s capacity and general performance as a police officer.
The applicant was unsuccessful in a promotion application during his time in Tuggeranong.
Mr Gordon enquired about a transfer to the Brisbane office sometime in 2004. His reaction to the news he would not be transferred in the foreseeable future is set out in his statement: exhibit one at p 105. He said:
“For the next year and a half I struggled to come to terms with the prospect of being held in the ACT. My parents were getting older and finding it difficult to travel to down to see us. We had no family support and another child on the way… .”
The applicant explained in his oral evidence that it was always his intention to seek a transfer to Brisbane whenever that could be arranged – but in the meantime, he says he had reconciled himself to working within the AFP, for all its faults. He pointed to the fact he had sold his house on the Sunshine Coast as evidence of his acceptance that he would not necessarily be in Brisbane any time soon. He also pointed to his decision to apply for a posting to Jervis Bay.
Not everyone appreciates Jervis Bay forms part of the Australian Capital Territory. It is therefore part of the AFP’s bailiwick. There is a small AFP post in the area from which officers police the seaside enclave. When Mr Gordon arrived in January 2006, the team leader’s role was being filled by another officer in an acting capacity. Mr Gordon said the post was in disarray. The acting team leader assured him policing was “laid back”, but Mr Gordon said in his oral evidence that he was uncomfortable with the lax approach. When a new full-time team leader was appointed a few months later, the applicant said he became caught up in an unpleasant conflict between the former team leader (who expected to be confirmed in the job) and the new supervisor. There were only three officers at the post, and they lived close by and worked together, so Mr Gordon says he felt the stress associated with the conflict especially keenly. He saw an AFP psychologist in March, April, and May 2006 in connection with the stress, although he says the situation improved once the new supervisor asserted control.
In the course of cross-examination, Mr Gordon was asked about other stressors that were present during his time in Jervis Bay – apart from the personal conflict at the station which admittedly spilled over into the applicant’s home life because the AFP officers tended to live nearby one another and their families socialised together. There was an incident where his wife had been threatened by a local man. There were also some issues surrounding Mr Gordon’s children from a previous marriage who lived in the United Kingdom. He also acknowledged he had been unsuccessful in a fresh application for promotion towards the end of his two year posting, although he says he was not unduly disappointed at the outcome. He added he was conscious that a promotion would limit his opportunities to move: I infer from his oral evidence on this point that he was conscious a promotion would make it harder for him to transfer to Queensland.
The Jervis Bay post was isolated. Mr Gordon said he was prepared to stay there even so, but he applied for a transfer back to the ACT towards the end of 2007. He was expecting to return to Tuggeranong but was posted instead to the police communications centre in February 2008. (I note he made a further unsuccessful application for promotion about this time.) Operators in the centre were responsible for despatching officers in response to calls that came in. Mr Gordon said it was an exceptionally difficult job. The operator had to make a hasty but finely balanced assessment of how to respond to each incident: how many officers to despatch, whether priority should be given over other calls, and so on. As an officer with extensive experience on the street, Mr Gordon said he was acutely aware of what could happen if he got the call wrong. He says he received little or no training and found he was making basic errors. He questioned his performance and self-worth. He asked for further training; he says his supervisors agreed to give him some more help but wanted him to stay in the section for at least 12 months. He says he persevered but was becoming increasingly distressed by the work and by the failure of his supervisors to provide more support and training. He says things came to a head several months later when he was sitting one day with a more experienced operator who was called away, leaving him on his own. It all became too much: he said he panicked and called out for assistance, but no one reacted. He took off his headset in a ‘state’ and walked away from the console where he was working. He says he felt like a failure. He says this incident in particular was the source of his current problems.
It is difficult to reconcile Mr Gordon’s account of this experience (culminating in his departure from the communications section) with the positive comments in his professional development and appraisal (“PDA”) form: exhibit one at p 235. His supervisor suggested in the PDA that the applicant was doing a good job and meeting his objectives. There is an acknowledgment of resource limitations that prevented more training being made available, but there was no suggestion the applicant experienced serious difficulty or that he had some sort of crisis. One would have thought the PDA in a proper performance management process would have made reference to Mr Gordon’s difficulties if they had actually occurred.
I note there is evidence the applicant was experiencing significant psychiatric symptoms throughout 2008, at least. Ms Clews, a psychologist employed by the AFP, commented in an email dated 21 July 2008 that Mr Gordon was “quite depressed” but “incredibly resistant to antidepressant medication”: exhibit one at p 30. Her notes dated 30 April 2008 (exhibit one at p 27) refer to the applicant’s struggle with his new work environment and issues surrounding training and support but also refer to the children from his first marriage in the United Kingdom.
The applicant was posted to an investigation role in Tuggeranong in August 2008 where he worked under Mr Crocker. He says he was led to believe it was a permanent posting but the AFP denied that was so: Mr Crocker says it was only ever a temporary posting, and he insisted in his oral evidence that Mr Gordon was told as much. Mr Gordon was subsequently told he would be sent back to general duties work. But he was transferred to work at Canberra airport in November 2008, which he regarded as a “dead-end” posting. His mental health appeared to be in a precarious state at this time: he made comments to colleagues on a number of occasions that raised concerns about his capacity for self-harm. Officers attended his home on one occasion after he had spoken of self-harm in his garage (exhibit one at p 38; see also p 36) and he was also relieved of his firearm at one point.
Mr Gordon saw a number of doctors and consulted with AFP managers about his future throughout 2009. I note he had a lengthy interview with Mr Murley, from the AFP’s human resources’ office, on 2 July 2009. Mr Murley recalled that meeting in his email of 30 November 2010 (exhibit one at p 252). Mr Murley noted Mr Gordon spoke for around two hours recounting promises made and broken by the AFP, as well as associated family issues.
The applicant also completed a performance development appraisal (“PDA”) form (exhibit eight) that included complaints about:
(a)the failure to transfer him to Brisbane despite the promises made when he was recruited; and
(b)a complaint that he was not going to be promoted “because I don’t know anyone high up in the AFP, and I’m not gay…”.
Mr Gordon suggested the comments in the PDA generated a flurry of activity within the ranks of AFP management, which was precisely his intention. He was visited by a Sgt Knight, amongst others. Mr Knight and the others recalled Mr Gordon saying he wanted a transfer to Brisbane. Mr Gordon did not dispute that he referred to his desire to move to Brisbane and expressed his dissatisfaction over promotions but he insisted these things were not at the forefront of his complaint against the AFP. He added he did not include the inflammatory comments in the PDA or express dissatisfaction in other contexts as part of a concerted campaign to get his way over postings.
The applicant lodged a compassionate transfer request in July of that year, and it was approved in August 2009. He was subsequently posted to the Robina office of the AFP commencing in December 2009.
The applicant’s time at Robina was eventful. There was more workplace conflict: the PDA completed by his supervisor (exhibit one at p 250) noted Mr Gordon had to be counselled about the way in which he spoke to some of his colleagues. Mr Gordon also referred to an incident on 6 September 2009 (see exhibit one at p 343 and his oral evidence) in which he says a supervisor shouted at him because he was leaving work to collect his children as he believed he was entitled to do. He left work within days, and has not returned since.
It is possible to detect some common themes from all of this evidence. Firstly, it is clear the applicant has from the outset experienced a sense of intense grievance over the AFP’s failure to post him to Brisbane. That was especially significant because the applicant had elderly parents in Brisbane. He sees that failure as a broken promise, although the AFP denies any promises were ever made. It is also clear the applicant was annoyed at some of the other postings he received, or was denied: in particular, he was not happy about being posted to the ACT police communications centre in 2008, and he was intensely unhappy that he did not receive a permanent transfer into the territory investigations group after he left police communications later that year. Secondly, the applicant was irritated by his failure to obtain promotion within the AFP. He made it clear in his evidence that he doubted the integrity of the promotions process. Thirdly, he was concerned about a lack of training and support. He certainly did not receive as much training and support as he requested, but it is unclear whether the deficiency was unreasonable. It seems the applicant did not work well in new or disordered situations: he had difficulty coping with the relaxed environment in Jervis Bay, and he felt out of his depth in the communications centre and at Robina where he worked on a different kind of investigation. He also had difficulty coping with what may have been conflict in the workplace – whether it was the tension between his team-mates at Jervis Bay or the behaviour of what he took to be an unsympathetic supervisor in Robina where he says he was bawled out over his practice of starting and leaving work early to accommodate his children. Fourthly, Mr Gordon had trouble coping with personal issues, most obviously the situation with the children of his first marriage.
THE MEDICAL EVIDENCE
A number of doctors were seen during the course of Mr Gordon’s dealings with Comcare. The evidence at the hearing came from two medical experts in particular: Dr Dodds, a consultant psychiatrist called by the applicant, and Dr Jetnikoff, a consultant psychiatrist called by the respondent.
Dr Dodds said the applicant suffers from major depression with generalised anxiety disorder. Dr Dodds suggested in his oral evidence that the date of onset was in 2008 in connection with the incident in the communications centre. During the course of his oral evidence, he accepted Mr Gordon may have experienced a pre-existing adjustment disorder that might have made him more vulnerable to the onset of depression in 2008 – perhaps because it may have affected his perception of events and behaviour (although Dr Dodds insisted the applicant’s condition, however it is characterised, did not impact on the accuracy of the applicant’s recollections of the events).
Dr Dodds agreed his report at exhibit one at p 183 listed a number of workplace stressors including the failure to get a permanent transfer to the territory investigation group in 2008 and the failure to get a transfer to Queensland until 2009. But in his cross-examination, he said it was possible to cull that list and identify one event in particular that was the cause: the incident in the communications centre in 2008. He says the other matters did not make a serious contribution to the onset or aggravation of the applicant’s psychiatric condition. Dr Dodds said he reached his conclusion after carefully evaluating Mr Gordon, who did not have good insight into his own condition and was therefore a challenging patient to treat.
Dr Jetnikoff said in his oral evidence that he did not think the applicant currently experienced any psychiatric condition, but he may have experienced an adjustment disorder at some point or points in the past. Dr Jetnikoff said his assessment of the applicant’s condition was based on a more rigorous application of the criteria in DSM-IV-TR. He said there were clinically significant symptoms present as early as 2006, or perhaps even 2004. (I note the applicant was also treated for depression in 2002.)
As it happens, I do not need to express a final preference for the opinion of either doctor. Both of them accept the applicant suffered from a psychiatric condition from at least 2008, if not 2006, although there is a dispute over whether the condition persists.
IS THE RESPONDENT LIABLE FOR THE APPLICANT’S PSYCHIATRIC CONDITIONS?
It is clear events in the applicant’s workplace made a significant contribution to the onset of the applicant’s psychiatric conditions, however those conditions are characterised, and regardless of whether they arose in 2008 or earlier. He encountered a number of stressful events in his work throughout that period which might have made a contribution. But the respondent is not liable if the condition resulted from:
(a)A failure to obtain a promotion, transfer or other benefit, if the injury or disease was taken to have arisen before 13 April 2007; or
(b)Reasonable administrative action (which includes failure to obtain a promotion, reclassification, transfer or benefit, pursuant to s 5A(2)(f)) if the injury arose after 13 April 2007.
The respondent is not liable even if other events in the workplace made a contribution to the onset of the conditions, for the reasons given in Hart v Comcare (2005) 145 FCR 29.
I will say at once I am satisfied the evidence establishes the onset (or aggravation, if that was what occurred) of the applicant’s psychiatric condition was the result of a failure to obtain a posting to Brisbane – and the applicant’s belief that the AFP had reneged on a promise. I do not deny other factors may have made a contribution but the angst in relation to the posting clearly was a significant factor. The sense of intense grievance was apparent from the time the applicant served in the ACT in 2005. Even if there was an adjustment disorder that emerged in 2006 – 2008 while the applicant was in Jervis Bay, the dissatisfaction over his failure to obtain a transfer was a source of ongoing frustration and stress, especially given the concern over his elderly parents. Dr Dodds recognised the transfer was an issue in his earlier reports, even though he came to focus on one event in 2008 as a trigger in his later evidence. Dr Jetnikoff also accepted the applicant’s failure to get to Brisbane was a factor in the onset of an adjustment disorder that may have arisen before 2008 (exhibit six at p 18). The applicant’s sense of grievance on this issue was a recurring feature in the evidence: it is difficult to see how it could not have made a significant contribution to the onset or aggravation of the condition, however the condition is described. That means the applicant cannot succeed if the date of onset was prior to April 2007. But even if the date of onset or aggravation was after that date, I am satisfied denying the applicant a transfer to Brisbane (or a permanent transfer to the territory investigations group in 2008, which was also a source of intense upset) was reasonable administrative action that was carried out in a reasonable way. If I had been persuaded the AFP had made promises it did not keep, the decision not to transfer Mr Gordon might have taken on a different complexion. But given the evidence of Ms Cattle (the APF recruiter: see exhibit one at pp 268 – 269), which seems inherently more probable than the evidence given on this point than Mr Gordon, I am not persuaded there was anything unreasonable about failing to transfer Mr Gordon to Brisbane. There is also nothing inherently or obviously unreasonable about failing to transfer him to the territory investigations group on a more permanent basis.
CONCLUSION
I have found aspects of the applicant’s workplace made a contribution to the onset of whatever condition he suffered from when he stopped work. Some of those factors are excluded factors, and the claim is unable to succeed for that reason. It may be that he could (and should) have been handled differently in respect of other aspects of his work. It seems unfortunate that he was transferred into a high-pressure job at ACT police communications in 2008 even though managers must have known of the history of anxiety and stress problems in Jervis Bay. Perhaps he should not have been assigned to work on the sort of material he was dealing with when he moved to Robina. But those things do not make any difference to the outcome of these proceedings. I am constrained by authority to reject the claim in light of the contribution of excluded factors to the onset or aggravation of the psychiatric condition.
The reviewable decisions are affirmed.
I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 30 August 2012
Date(s) of hearing 19 - 20 June 2012 Counsel for the Applicant Mr Black Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Ms Dinnen Solicitors for the Respondent Sparke Helmore
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