Timothy Crawford and Comcare
[2013] AATA 405
[2013] AATA 405
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5542
Re
Timothy Crawford
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member and Dr S Toh, Member
Date 18 June 2013 Place Sydney The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Ms G Ettinger, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – whether the applicant is eligible for compensation for his psychiatric condition – whether condition was a result of reasonable administrative action taken in a reasonable manner – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14
CASES
Hart v Comcare (2005) 145 FCR 29
Shi v Migration Agents Regulation Authority (2008) 235 CLR 286
Re von Stieglitz and Comcare [2010] AATA 263REASONS FOR DECISION
Ms G Ettinger, Senior Member and Dr S Toh, Member
18 June 2013
SUMMARY
Mr Tim Crawford, aged 52, has been a Protective Service Officer (PSO) with the Australian Federal Police, (the AFP), since 2001. He had previously worked in the private sector. Since 2008, he has held a Top Secret security clearance, (the highest level). He is a recipient of the National Manager’s Certificate awarded in recognition of professionalism, commitment and outstanding performance. He was a PSO at Sydney Airport from 2005 till his move to the Gold Coast Airport in 2009. While at Sydney Airport he qualified as a Bomb Appraisals Officer (BAO). His substantive position is still in Sydney.
Mr Crawford told us that he applied for a transfer to the Gold Coast Airport in 2007 in order to assist his mother with his father, who was diagnosed with dementia. We noted from an AFP Minute that his application for a transfer was lodged on 26 March 2008. Approval was granted on 26 March 2009 by the Transfer Committee in Canberra for a compassionate transfer, which generally is for a period of one year, provided a position becomes available. In giving its approval the Committee did not specify a commencement date, and no final documentation had been issued. Mr Crawford was told that his transfer to the Gold Coast Airport was contingent on another officer completing his training for IDG deployment, and Mr Crawford taking his position on a temporary basis.
Despite not having documentation, referred to as paper work, specifying a start date Mr Crawford appears to have taken matters into his own hands, and on 15 May 2009, widely publicised his farewell from Sydney Airport. He also gave up his lease, took his children out of day care, and relocated to Queensland on or about 1 June 2009.
Mr Crawford ultimately served two years of compassionate (temporary) posting at the Gold Coast Airport, from 6 July 2009. Mr Crawford was hopeful during his posting on compassionate grounds of obtaining a permanent position at Gold Coast Airport. He felt while he was there, that he had been overlooked when permanent positions became available. It appears that Mr Crawford could improve his prospects of attaining a permanent position at the Gold Coast Airport, and his opportunities in the AFP more generally, by participating in the MACER program and passing gateways, or thresholds, required to transition from a PSO to a sworn officer of the AFP. Evidence was that he passed all the gateways except the Integrity Module.
On 10 June 2011, Mr Crawford left work, not to return, suffering a psychiatric condition after having been informed that his compassionate leave would not be extended for a third year, and that he would not pass the Integrity Module of MACER to transition to a sworn officer, which meant that he could not remain at the Gold Coast Airport. He was also informed that he was due to resume work at Sydney Airport on 8 July 2011.
We accept the evidence of Dr Synnott, a psychiatrist who examined Mr Crawford, and who gave evidence before us, that Mr Crawford has suffered psychiatric symptoms since 2009. Ms Reynolds, a psychologist, diagnosed adjustment issues in 2010. Mr Crawford claims that the psychiatric condition was contributed to, to a significant degree by his employment with the AFP, and is compensable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Respondent, Comcare, agrees that that the psychiatric condition was contributed to, to a significant degree by Mr Crawford’s employment with the AFP, but argues that Mr Crawford’s condition is not compensable because of the operation of section 5A of the Act. Comcare says that compensation is excluded pursuant to section 5A of the Act on the basis that the condition Mr Crawford suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
We have not found in Mr Crawford’s favour, and have affirmed the decision under review. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
The delegate in making the determination on 4 August 2011, disallowing Mr Crawford’s claim for compensation, referred to the diagnoses of anxiety state and depressive disorder with the date of injury (pursuant to section 7(4) of the Act), being on 8 June 2010, the date Mr Crawford first sought medical treatment from Dr De Wilde.
The parties have accepted that Mr Crawford suffers a psychiatric disorder, being Adjustment Disorder, or Major Depressive Disorder (also referred to as Anxiety State and Depressive Disorder in the delegate’s determination), which has been contributed to, to a significant degree by his employment with the AFP. The Review Officer, in refusing liability, stated however on 10 November 2011, that: Dr De Wilde considered that the uncertainty around the renewal of your temporary transfer contributed to your claimed condition. I am therefore satisfied that your condition was significantly contributed to by reasonable administrative action.
The question this Tribunal has to determine is whether Mr Crawford is eligible for compensation for his psychiatric condition, or whether it is excluded pursuant to section 5A of the Act on the basis that the condition he suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
THE LEGISLATIVE CONTEXT
The relevant legislation in regard to this matter is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
13. Section 14 provides that compensation is payable in respect of an injury suffered by an employee if the injury results in ... incapacity for work.
The definition of injury is set out in section 5A(1) and 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.
The definition of disease is to be found in section 5B, and is defined to mean:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment ...
Section 5B(3) provides that:
significant degree means a degree that is substantially more than material.
Under section 4(1) an ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 5A(2) states that 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.
Section 7(4) of the Act deems the date of injury to be when the employee first sought medical treatment or the condition first resulted in incapacity for work or impairment of the employee.
THE TRIBUNAL’S JURISDICTION
Both Mr Dodd of counsel who represented the Applicant and Mr Gollan of counsel who appeared for the Respondent made submissions regarding the jurisdiction of the Tribunal. It cannot be in dispute that the Tribunal stands in the shoes of the decision maker, and that, in this case, it derives its powers through the application of the Safety, Rehabilitation and Compensation Act 1988.
The Applicant’s claim for compensation of 16 June 2011 gave rise to the determination of Comcare of 4 August 2011, and the reviewable decision of 10 November 2011, which is the basis for this review. In his claim, the Applicant nominated 6 June 2010 as the date of injury, and basing the application of section 7(4) of the Act on Mr Crawford’s first consultation with Dr De Wilde in regard to the injury or condition which has caused him to claim compensation, the deemed date of injury can be taken to be 8 June 2010.
We are mindful also of the issue between the parties of whether Mr Crawford suffered an injury or a disease, and note there is ample case law on point. We note in particular Re von Stieglitz and Comcare [2010] AATA 263 where the Tribunal considered the difference between a mental injury and a disease. The Tribunal considered section 5A of the Act, and held that mental injury is limited to conditions involving sudden or identifiable physiological change to the mind, such as an epileptic fit. The Tribunal held that mental disorders which are not due to physiological change, but are psychological in nature are covered by the definition of disease. In Re von Stieglitz, the Tribunal held that the Applicant suffered an Adjustment Disorder which was a disease. We rely on the case of Re von Stieglitz, and find from the evidence that, pursuant to the Act, Mr Crawford was suffering a disease.
Mr Dodd sought to extend the ambit of the claim by including detail Mr Crawford provided in a letter of 30 June 2011, and referring to the fact Comcare was also asked for further comment to respond to the matters raised in this letter. We are satisfied that whilst the Tribunal can, pursuant to Shi v Migration Agents Regulation Authority (2008) 235 CLR 286 take into account facts and circumstances up to the time of the review, the ambit of the claim cannot be widened in the way Mr Dodd has suggested. We are also not satisfied there is evidence of a further injury or aggravation as may have been suggested, and no claim has been made for one.
BACKGROUND TO THE CLAIM
Mr Crawford’s first posting as a PSO, which was for two and a half years, was at Kirribilli House commencing in 2001. He stated that he had no issues with management and received excellent reports as to his attendance, conduct and performance. He was then transferred to the Diplomatic Protection Unit for two years with similar results he claimed, following which he was transferred to Sydney Airport.
Mr Crawford told us that in 2007, he requested a transfer to the Gold Coast Airport because his father had developed severe dementia, and he was required to assist his parents. For the sake of completeness, we note that the evidence indicates his application for a transfer was made on 26 March 2008. Mr Crawford’s evidence was that although he had been on the transfer list for some time, nothing had happened by 2009. He said that in May 2009 he approached Superintendent Warren Gray, then Sydney Airport Police Commander to progress the transfer. In cross-examination, he agreed it had been an informal approach to Mr Gray. However, Mr Crawford claimed the transfer took place with the personal assistance of Mr Gray, and also claimed that Mr Gray assured him that once he was up at the Gold Coast Airport on a temporary transfer, the position was likely to become permanent.
When questioned, Mr Crawford told us that he understood his transfer in 2009 was a compassionate transfer, and also understood that it was for a period of 12 months. He said that at the time of moving to the Gold Coast, he thought he had confirmation of a commencement date, and wasn’t sure he needed paperwork confirming this, because as far as he understood, the transfer was approved. Further on in the cross-examination, Mr Crawford was asked: You, when you moved from Sydney, didn’t have a commencement date in the Gold Coast, did you? He replied: Apparently not.
We noted an email from Mr Kopsaris to Mr Crawford dated 15 May 2009, indicating he had no commencement date at the Gold Coast Airport, and no release date from Sydney. Notwithstanding, Mr Crawford gave notice regarding his lease, took his children out of daycare, and moved to the Gold Coast on or about 1 June 2009.
Notwithstanding the emails and other indications Mr Crawford had that no start date had been confirmed for the Gold Coast Airport, Mr Crawford said that he thought it would be like at Sydney where he was just told to turn up and sign the paperwork then and there. The evidence indicates that Mr Crawford knew that the position he was going to fill would only arise when the previous incumbent had completed a course before his deployment overseas. He said, however, that he expected a start date in early June 2009 (according to what Mr Gray told him), although he had heard 25 May 2009 could be suitable, so because it was a self-relocation, he simply relocated his family to the Gold Coast.
On 15 May 2009, Mr Crawford wrote an email to all staff at Aviation Sydney informing them of his transfer to the Gold Coast Airport, and inviting them to a farewell for him on 30 May 2009.
Mr Crawford also wrote in his letter of 30 June 2011 to Comcare that on the day he accepted the transfer, he received a call from the Gold Coast Airport OIC congratulating him on the transfer, and confirming what he understood: don’t worry about the temporary status, we’ll make you permanent once you get up here. He stated that those assurances continued for two years, although in effect he was overlooked for at least three PSO positions with no explanation given.
Mr Crawford stated that due to a management bungle over the transfer, even though the transfer had been approved, the release and start date at Gold Coast Airport had not been organised. He said that he arrived for work at the Gold Coast Airport on 5 June 2009 without the Acting OIC knowing anything about it.
The evidence indicates his commencement date was determined by the Transfer Committee at its next meeting, held on 2 July 2009 to commence 6 July, and that in 2010 Mr Crawford was granted a 12 month extension of his compassionate leave posting. Following advice in May 2011 that his temporary posting would not be extended further, and on seeing his roster indicating he was due to commence work at Sydney Airport on 8 July 2011, Mr Crawford suffered stress and chest pain on 10 June 2011, and left work. He has not returned to work since.
Mr Crawford lodged a compensation claim with Comcare dated 16 June 2011 claiming injury on 6 June 2010. He was asked by Comcare for further information, which he provided in a long letter, dated 30 June 2011 in which he traverses in detail the issues he raised in his claim, and his perceived reasons for his psychiatric condition.
Mr Crawford’s psychiatric condition
Mr Crawford’s claim form dated 16 June 2011, made after he left work claiming stress and chest pain on 10 June 2011, claims that he was injured on 6 June 2010, and sought assistance from Dr Peter De Wilde. He had been a patient at the surgery since 10 June 2009. In reply to the question on the form asking: What actually injured you or made you ill? Mr Crawford replied: Constant harrassment, displaced [sic] treatment, alienation and total disregard for my circumstances on a personal level. Constantly treated with disdain in office.
Dr De Wilde’s clinical notes relevantly record as follows:
Tuesday June 8 2010 …
Not eating, over last 2/7, very distressed with work. Father dementia and doesn’t recognise him any more. Term of temporary work up here will be up soon. Was seen by peer-support-officer that he should see a Dr and take some time off work. Requests to see Psychologist for his anxiety/depression. He is sure it is “all to do with work”, who want him to go work back in Sydney.
…
Thursday June 17 2010 …
Feels slightly better on Lexapro. Depression seems improved, but still present. No SE on Lexapro. Sleeping 5 hrs night, 1 1/2 hr last night as just done nightshift, appetite still poor, on homescales 93 kg 3/52 ago. Review after Lucille [Reynolds, psychologist].
On 23 June 2010 Ms Reynolds, a psychologist, wrote to Dr De Wilde in the following terms:
… As you are aware Tim transferred on compassionate grounds to this area from Sydney to help care for his father who has dementia.
Tim was having a meeting at work this week where he would find out if he could stay temporarily at the Coolangatta office for another 6 months instead of having to return to Sydney. He felt that if this occurred he would not need psychological input. …
Dr De Wilde’s clinical notes of 24 August 2010 record:
Never took any Lexapro after June 2010. He got phonecall day [sic]. here for form to state he is fit for physical testing at work.
In a response to Comcare, dated 24 June 2011, Dr De Wilde wrote that he had only had brief contact with Mr Crawford in 2010, and was unsure of his present condition. In relation to the period June to August 2010, he referred to Ms Reynolds’s diagnosis of adjustment issues due to the workplace, as reported by Mr Crawford.
Dr Inglis Howe Synnott, provided a report of his examination of Mr Crawford dated 26 March 2012, (Exhibit R7), and gave oral evidence at the hearing. Dr Synnott recorded Mr Crawford telling him he developed significant psychological symptoms in 2009, which have become much worse over time. The difficulties, Mr Crawford told him, commenced with the move to the Gold Coast Airport where he identified for Dr Synnott that people treated him differently from others, and where some did not like him. Mr Crawford claimed that the condition continued, and that he finally left work in June 2011. Mr Crawford told Dr Synnott that he could not return to any kind of work. He claimed that he suffered sleep problems, and that he became progressively more easily upset and aggravated and irritable.
Dr Synnott diagnosed Adjustment Disorder or Major Depressive Disorder, adding that there are no automatic implications simply on the basis of the diagnosis. He opined that one should not therefore assume that the person was significantly impaired or incapacitated for employment on the basis of such diagnosis.
Dr Synnott also emphasised that this was an industrial issue, and that the accounts given by Mr Crawford and officers of the AFP with which he had been supplied, were in conflict with one another. He advised that no psychological therapy or psychotropic medications would have significant benefit, and noted that even at the time of going off work in June 2011, Mr Crawford had been able to do his work well for the previous two years. Dr Synnott indicated it would be better for Mr Crawford to continue working and participating in all his life roles rather than risk becoming entrenched in a maladaptive pattern.
Dr Synnott noted that Mr Crawford attributed dealing with the workplace situation, and the way he was treated, as the problem. Dr Synnott opined that matters came to a head in mid-2011 when Mr Crawford was informed he would not be approved for a permanent transfer.
Dr Synnott noted that Mr Crawford had not mentioned his father’s dementia to him, and the assistance he was required to give his mother, and accordingly its impact on him, all of which Dr Synnott said would have had some psychological impact on him.
We are able to conclude from the medical evidence that Ms Reynolds diagnosed adjustment issues in 2010, and that Dr Synnott diagnosed Adjustment Disorder or Major Depressive Disorder in March 2012. We also accept, noting the Respondent’s agreement, that Mr Crawford’s psychiatric disorder has been contributed to, to a significant degree by his employment with the AFP. We also note he was due to recommence work at Sydney Airport on 8 July 2011, but has not returned to work at either the Gold Coast or Sydney Airport since he went off sick on 10 June 2011.
We continue with the evidence of Mr Crawford and the AFP officers who gave evidence before us, noting that due to the voluminous amount of correspondence, not all detail was relevant, or could be included.
EVIDENCE
Mr Crawford told us that he applied for a transfer to the Gold Coast Airport in order to assist his parents in 2007, although we understand the application was dated 26 March 2008.
We noted that the Transfer Committee met in Canberra on 26 March 2009, following which Mr Crawford was sent an email dated 31 March 2009, in which it was stated:
The Transfer Committee met on Thursday 26 March 2009 and your transfer at own expense application to transfer from Sydney Airport to Gold Coast Airport has been approved for a period of 12 months only.
Tim – can you please advise if you would like to accept this offer.
Harry [Kopsaris, Team Leader CTFR, Sydney Airport] and Mark [Wrench OIC CTFR, Gold Coast Airport] – can you please arrange a suitable release date for PSO Crawford so I can draw up the appropriate paper work.
Mr Mark Wrench, OIC, CTFR at Gold Coast Airport also emailed Mr Crawford, Mr Kopsaris and Ms Penny Flanagan, (Business Management Team, Protection) on 31 March 2009 informing them that the person whom Mr Crawford would be replacing would be commencing his course on 25 May 2009, and that a transfer at around that date would be reasonable. He emphasised that the officer’s deployment was dependent on him passing his final qualification, and that Mr Crawford’s appointment at the Gold Coast Airport was dependent on that. Ms Flanagan also informed Mr Crawford on 31 March 2009 that the transfer was at his own expense, and for a period of 12 months only. As the email was also sent to Mr Kopsaris and Mr Wrench, she asked them for a release date so that she could prepare the appropriate paperwork. We note the reference to the need for paperwork to be drawn up once the release date was agreed.
We were satisfied from the above, and notwithstanding Mr Crawford’s statements to the contrary at first, that he was fully aware of all the circumstances on which the transfer was contingent, in particular that he was required to have confirmed dates and the relevant paperwork.
Mr Crawford told us that following his application, he had not been given any indication when the transfer might occur. Because he felt the situation with his father required his involvement, and he was required to assist his mother at the Gold Coast, he approached Mr Gray for assistance. He said that he had a meeting with Mr Warren Gray on 4 May 2009.
We noted that Mr Gray’s evidence regarding his involvement in Mr Crawford’s compassionate transfer differed substantially from that of Mr Crawford. Mr Crawford told us that he approached Mr Gray, in order to obtain a transfer to the Gold Coast Airport. In cross-examination, he agreed it had been an informal approach to Mr Gray. However, Mr Crawford claimed the transfer took place with the personal assistance of Mr Gray, and also claimed that Mr Gray assured him that once he was up at the Gold Coast Airport on a temporary transfer, the position was likely to become permanent. After the meeting on 4 May 2009, Mr Crawford wrote an email to Mr Gray in the following terms:
Thanks for your time today Boss… My family and I have completed everything thus far, including transfer of bank accounts, notification and cancelation [sic] of household utility companies, licences etc. The final 2 items on the transfer agenda are 1) 21 day written notification of cessation of occupancy to the real estate agent which will be next Monday the 11th of May, as the movers arrive on Monday the 1st of June. and 2) confirmation that the AFP transfer is in effect. All being on Schedule, I will apply for leave, through Harry [Kopsaris], on Monday the 1st of June for 1 week, then start at Gold Coast on Monday the 8th of June officially. If there are any issues with that schedule if I could be contacted prior to the 11th of May as I have to notify the real estate agent by then.
Much Obliged for everything you have done. If it wasn’t for you Boss, I don’t believe the transfer would have gone through at this time. I am very aware and very appreciative of all your efforts.
We note that at the hearing, suspicion was raised in regard to the provenance of the above quoted email by Mr Kendall Fox who, at the relevant time in 2009, was OIC Counter Terrorism First Response at Sydney Airport, and had forensic expertise. The suspicion was raised because the email included a Gold Coast Airport logo at a time when Mr Crawford was still in Sydney. The hearing in November 2012 was adjourned for the parties to investigate the email. The hearing was resumed in March 2013 on the basis that the email had been sent to Mr Gray by Mr Crawford as stated.
We noted that Mr Gray’s evidence regarding Mr Crawford’s very personal email to him dated 4 May 2009, (as reproduced above), was that he received a large number of emails. He also said that he did not respond to Mr Crawford’s email, and said that he treated Mr Crawford as he would any staff member who requested a compassionate transfer. He agreed in reply to questions at the hearing that Mr Crawford was not a favourite son as perhaps might have been implied from Mr Crawford’s very familiar tone in his email, adding that he was not in any way offended by the email, because his management style is informal.
We accept Mr Gray’s evidence that he was aware of Mr Crawford’s request for a compassionate transfer to the Gold Coast Airport, and that he delegated the detail to Messrs Kopsaris and Fox as part of their management duties. He emphasised that he did not get involved in the precise detail of a transfer, and the authorities required. He told us that although he knew about the decision of the Transfer Committee on 26 March 2009, and had been privy to various emails regarding the transfer, he had not spoken to Mr Crawford until 4 May 2009. We accepted Mr Gray’s evidence that in a paramilitary organisation such as the AFP, no transfer could take place without the appropriate paperwork.
On 15 May 2009, Mr Chris Stephenson wrote to Mr Kopsaris regarding Mr Crawford’s transfer. He expressed the following: In other conversations with Crawford regarding his transfer I have formed the belief that he believes this to be a permanent transfer and that he will never return from Gold Coast Airport.
Also on 15 May 2009 Mr Crawford emailed all staff at Aviation Sydney inviting them to a farewell party for himself on 30 May 2009.
Later the same day Mr Kopsaris emailed Mr Crawford reminding him he did not have confirmation of a start date which was contingent on the officer he was replacing completing his IDG gateways.
Also on that day Mr Gray was informed by Mr Brown of the Gold Coast Airport that there were various concerns about the transfer. Later the Gold Coast Airport was indicating the transfer of Mr Crawford was no longer accepted. Mr Gray in an email of 21 May 2009 indicated his view that Mr Crawford’s claims for the transfer had not changed, and while he was jumping the gun, they were trying to dampen his enthusiasm for a date, and requested advice be given promptly about whether the transfer was to go ahead. He was mindful of the anxiety Mr Crawford would experience if the transfer did not proceed.
On 27 May 2009 Mr Crawford wrote to Mr Stephenson:
apparently there’s controversy about my departure date from SKSA to Gold Coast. I did receive the email that you also received from Harry [Kopsaris]. I chose not to respond. The reason is because this transfer date was discussed with myself and The APC in his office on the 4th of May discussing my departure and departure date, followed up by an email, discussing my date of departure. From that date to this day, I have not heard that the departure date that was discussed had any issues…
… at this stage, I am way past the point of return.
Mr Crawford attended at the Gold Coast Airport on 5 June 2009, then emailed Mr Chris Stephenson, Deputy Operations Manager, Sydney, stating that he was in the Gold Coast AFP office, and had spoken to the OIC who had no knowledge of the status of my transfer.
In a Minute dated only June 2011, Mr Paul Williams, National Manager Aviation Infrastructure, wrote in connection with the consideration for compassionate transfer of Mr Crawford that as a result of Mr Crawford’s application on 26 March 2008 for a compassionate transfer to the Gold Coast Airport, the transfer was approved on 26 March 2009, on the basis of a position becoming available at the Gold Coast … PSO Crawford took it upon himself to relocate his family to the Gold Coast prior to any written approval from the Committee. He stated further that Mr Crawford reported to the Gold Coast Airport for duty on 5 June 2009, when it was established that neither the APC Gold Coast or Aviation Support Headquarters were aware of his movements.
Mr Fox’s evidence was that he did not need to know precise details of Mr Crawford’s transfer in 2009 because there were three layers of hierarchy below him. However, he said that he was informed Mr Crawford had not reported for work at Sydney Airport on 9 June 2009, and that there were suspicions he had moved to the Gold Coast. He wrote to a number of people on 12 June 2009 and asked that Mr Kopsaris be the single point of contact between Sydney and Mr Crawford to take charge of the matter in order to avoid miscommunication.
Mr Gray’s personal assistant sent an email as directed by him to Ms Alison Café on 10 June 2009 in the following terms:
His [Mr Gray’s] opinion is that if Tim Crawford is entitled to a compassionate transfer then industrially we need to move forward; if he is not entitled to it then he doesn’t get it. There is no doubt we have concerns over the commencement date and the fact he jumped the gun but surely this does not detract from the fact that he is entitled to the transfer.
On Tim’s understanding that he would be granted the transfer he moved to the Gold Coast, relinquished his leases thinking he would commence on 1 June although advised this would be on the basis the position at the Gold Coast would become available.
Warren [Gray] hasn’t spoken to Tim since 4 May when he advised that the transfer was not through and asked Warren whether he should take leave on Sydney or GC books …
We noted that the Transfer Committee met again on 2 July 2009 and offered Mr Crawford a transfer to the Gold Coast Airport with the conditions previously communicated, to commence on 6 July 2009. Mr Crawford’s acceptance in the following terms is at T31/403: I understand that the transfer is for a period of 12 months commencing 6th July 2009 and at the conclusion of the transfer period I will recommence at Sydney Airport with all the relocation costs met by myself.
On 3 July 2009 Mr Crawford wrote:
Thanks Harry, further to our conversation regarding my transfer … I do accept the transfer ‘again’, this time with the definite start date of 06/07/2009 08:00 hours.
I wish to thank you Harry and the other Key people involved in clearing this matter up. I appreciated you keeping in contact and your updates every few days Harry…
In a minute dated only June 2011 by Paul Williams, Manager Aviation Support, it is noted the transfer was extended to 8 July 2011 by Commander Grant, and Mr Crawford acknowledged the terms and conditions of the extension. According to the minute Mr Crawford was formally reminded by Aviation Stakeholder Liaison on 3 May 2011 that his transfer was due to expire on 7 July 2011, and that he was required to report to Sydney Airport on 8 July 2011.
On 17 May 2011 Mr Crawford wrote to Mr Williams explaining emphatically, his reasons for wanting to remain at the Gold Coast Airport. These were principally to do with the care of his father, and to assist his ageing mother. He also indicated that he had committed himself financially, and was building a house next door to his parents, and it was therefore imperative he remain there. He told us that the land had been owned by his family for over 20 years, and that construction of the house had commenced in March 2010, and was concluded by August 2010.
Mr Crawford said that when he saw that he was rescheduled to commence at Sydney Airport on 8 July 2011, he went off sick on 10 June 2011, and has not returned to the workforce. Mr Crawford submitted a compensation claim on 16 June 2011.
Mr Crawford stated in his letter of 30 June 2011 that he had heard opinions expressed that he intimidate[d] management, and didn’t fit the Gold Coast Airport mould because of [his] looks and … character. In his letter to Comcare, Mr Crawford wrote that the way he had been treated for two years by the officers, supported the above, and stated that: I have suffered severe stress, humiliation, emotional distress, displacement and isolation brought on by the treatment I have received from the management of the AFP Gold Coast Airport. He stated that he had heard the Gold Coast Airport management was trying to block his transfer, and that there was a conspiracy against him.
In re-examination Mr Crawford told us that no one spoke to him for two months after he arrived at the Gold Coast Airport. Notwithstanding the above, Mr Crawford had stated in his cross-examination that in 2010 after 12 months at the Gold Coast Airport, everyone there was supportive and sympathetic of his request to extend his compassionate transfer posting. He said that he got on well with the OIC Mr Gary Brown, (with whom he had limited contact), Mr Mark Dumble who was there for a short time, and he mentioned Mr Garry Rose who was his boss for 12 months, in particular, agreeing that Mr Rose did not hold him in disdain or harass him, or alienate him.
We also had the benefit of the evidence of a number of other senior executives of the AFP who attended the hearing.
Detective Superintendent Roger Brown
Roger Brown was in 2009, and continues as Airport Police Commander of Gold Coast Airport. His statement was Exhibit R4, and he gave oral evidence at the hearing. He gave evidence that initially when he heard about Mr Crawford’s proposed compassionate transfer, he supported it in principle, but noted that there were no PSO positions vacant at Mr Crawford’s level at the Gold Coast Airport at the time. He stated that because Mr Crawford had relocated to the Gold Coast Airport when a start date had not been negotiated, he then opposed the transfer. The basis of his opposition to the transfer, he said was that:
·no position was available at the time;
·Mr Crawford had no documentation authorising the transfer;
·he had issued a farewell invitation from Sydney prematurely without authority of the Transfer Committee; and because
·he generally found Mr Crawford’s standards of behaviour unacceptable.
Mr Brown added that at the time, Mr Crawford’s BAO status had been suspended due to a complaint, and was subject to assessment, although he conceded that BAO status was not an essential qualification for a PSO. He said that he discussed the situation with Mr Warren Gray, who supported the transfer.
Mr Brown said however, that when the transfer was eventually approved on 2 July 2009 for a commencement on 6 July 2009, and Mr Crawford had acknowledged it was for a period of 12 months, they welcomed him to the Gold Coast Airport. Mr Brown also told us that he later met with Mr Crawford in April 2010 to inform him the 12 months transfer would come to an end in July 2010. Later, he said, a decision was made to extend for a further 12 months. Then on 3 May 2011 Mr Crawford was informed that his temporary transfer would expire on 7 July 2011.
Mr Brown said that he was aware that Mr Crawford was pursuing a permanent transfer, and noted that he (Mr Brown) had not been advised of any performance issues regarding Mr Crawford while stationed at the Gold Coast Airport (corroborated by Inspector Gary Brown at Exhibit R5). He said that he knew Mr Crawford had been advised the best opportunity of remaining at the Gold Coast Airport was to progress through MACER.
Mr Brown was also advised on 11 May 2011 that he was to conduct a formal counselling session with Mr Crawford in regard to CRAMS 4782, (the staff leave complaint which was not further pursued as 92 hours accrued leave had been established, and was below the 100 hour bench mark), and the established complaint, ‘Failure to Comply with Direction or Procedure’, being directions to acquit the outstanding leave subject to this complaint. He stated that he accordingly complied with the advice, and issued a formal warning to Mr Crawford on 12 May 2011.
We noted Mr Crawford’s evidence was that on arrival at the Gold Coast Airport to commence work on 6 July 2009, he met with OIC Mark Wrench and the Commander, Roger Brown who reminded him it was for a 12 months transfer. He stated that he told the officers he was aware of the conditions of transfer, but that in order to assist with his father, he was hoping it would become a permanent position. Mr Roger Brown’s diary note at annexure E to his statement reflects that conversation with an emphasis by him that there were no guarantees, and that offers of support were given. He stated further that Mr Crawford did not approach him to complain about any behaviour towards him at Gold Coast Airport as alleged in Mr Crawford’s claim for compensation.
Inspector Gary Brown
Inspector Gary Brown was OIC of Airport Uniform Operations Police at the Gold Coast Airport from 2010 to May 2012, and in charge of the PSOs from September 2010. Mr Brown provided a statement, Exhibit R5, and gave oral evidence at the hearing. Mr Brown said that he advised Mr Crawford he had no decision making role in regard to the MACER transition but knew that PSOs were being phased out, and advised Mr Crawford on preparing a submission in order to extend his stay at the Gold Coast Airport. He noted that Mr Crawford had concluded his submission with an expression of his satisfaction with his stay at the Gold Coast Airport.
Mr Garry Rose
Garry Rose who was a constable at the Gold Coast Airport, and provided a security function gave oral evidence. We had no written statement from Mr Rose. In 2009 he was Acting Inspector, the most senior officer of the Gold Coast Airport for a short time. He said that he first met Mr Crawford on 6 June 2009 when the Applicant was on leave, and came into the Gold Coast office to check his emails.
Mr Rose said that he was concerned Mr Crawford did not understand the process of transfer which was contingent on a place being available following the deployment of the officer he would replace, overseas, and having the relevant authority to move. Mr Rose said that he explained the situation to Mr Crawford, emphasising that the transfer was for 12 months, and was concerned when Mr Crawford informed him he would be made permanent.
Mr Rose also said that before he met Mr Crawford, he had communicated with Mr Kopsaris and learnt that he had had issues with Mr Crawford. He said that he accordingly opposed the transfer as not being in the interests of the Gold Coast Airport. He said that he explained that to Roger Brown.
Mr Rose also said that he conducted a performance appraisal with Mr Crawford, and concluded there were no problems. He did not think Mr Crawford was alienated by him or anyone else, nor harassed, and that in the event of problems, he could have had a confidential talk about matters to his supervisor or the padres.
Sergeant Kendall Fox
Sergeant Fox, OIC Counter Terrorism First Response at Sydney Airport whose statement was Exhibit R6 gave oral evidence at the hearing. He stated that it was he who instituted CRAMS 3413 which concerned Mr Crawford’s unauthorised departure from Sydney Airport, and non-appearance for work at Sydney Airport on 9 June 2009. The CRAMS alleged a diligence failure, and that Mr Crawford had failed to comply with direction or procedure. Mr Fox also said that if Mr Crawford had applied for miscellaneous leave, that application would have come to him, and would have maintained Mr Crawford’s income.
PROJECT MACER
The evidence before us was that in order to transfer from being a PSO to a sworn police officer, it was necessary to pass through the MACER testing and gateways. The transition was inaugurated in 2010, and required all PSOs from the eleven airports around Australia to transition over a three to five year period from 2010. The transition course was a four month course conducted in Canberra, but prior to acceptance for that, each PSO had to pass a number of MACER gateways or thresholds.
There appears to have been an understanding in 2009 when Mr Crawford transferred to the Gold Coast Airport on a compassionate transfer that the possibility of the transfer becoming permanent was at least partly dependent on him achieving MACER. He claims that this did not apply to certain other officers, and the fact he was not permitted to pass the Project MACER Integrity Module meant he was discriminated against.
We have noted Mr Gary Brown’s email to Mr Crawford dated 6 May 2011 confirming a telephone conversation and informing him that he had been refused attendance at the transition course in August 2011, and that he would be required to show cause why he should be allowed to transition to a sworn police officer at all. He was informed PSO positions were being phased out, and that Sydney had more opportunities for PSOs. Mr Crawford was given an opportunity to make a submission, and further request to extend his compassionate transfer, but informed that unless he heard otherwise, he was required to commence work at Sydney Airport on 8 July 2011.
On 17 May 2011 Mr Crawford wrote to Mr Williams in support of his strong desire to remain at the Gold Coast Airport. He referred to the care he gave to his parents, and to the fact he had committed himself financially and was building a home next door to his parents. He stated that he hoped he had made a good case to remain as part of the Gold Coast Airport team, which he thoroughly enjoyed being a part of.
On 8 June 2011, Mr Paul Williams, Manager Aviation Support wrote to Mr Crawford regarding his suitability to transition to sworn status via Project MACER, and his posting at Gold Coast Airport. He offered Mr Crawford the opportunity of making submissions about his suitability to transition, and his posting at Gold Coast. Mr Crawford replied on 21 June 2011, concerned about CRAMS 4782, Category 2 in regard to unaccounted leave, which had been found not to be established. He also stated that in regard to CRAMS 4782, Category 2, which was established, he was not told with what direction he had not complied, and that he had referred the matter to the Commonwealth Ombudsman.
On 29 June 2011 Roger Brown wrote to Mr Williams in regard to Mr Crawford, stating that he (Mr Crawford), had, in his correspondence, submitted a number of quotes which were inaccurate or out of context. He also stated:
In general, we were not happy with the way in which PSO Crawford transferred himself to this station outside of AFP procedures. However, we provided him with a position and accepted him in the workplace. … He was told should a suitable position become available and his work performance be at or above the required standard he, along with any others, would be considered for that position. The impact of Macer was that these deployments were taken out of station management’s hands. Macer also meant there were no PSO positions at this station. Therefore, to remain at Gold Coast Airport Station he would have to transition. From my understanding of the current situation, by his own actions he has prevented transition to a sworn police role.
… Therefore we cannot support a permanent transfer in of a PSO.
Mr Crawford said that Superintendent Booy, head of MACER, told him it was because following a leave audit investigation, Operation Hoplite, he was found to have missing leave entries for 2007 and 2008. Mr Crawford was critical of Operation Hoplite saying that approximately 150 officers had been involved, and that the results had ultimately been found to have been caused through an administrative error in the organisation, although the evidence we have regarding the Ombudsman’s inquiry as noted below referred only to Mr Crawford.
Mr Crawford also argued that if there had been integrity issues, he would not have been able to retain his top secret clearance, or been able to keep his status as a Bomb Appraisal Officer. In that regard he also mentioned being a JP, and receiving an award from the AFP National Manager of Aviation recognising his professionalism, commitment and outstanding performance. He provided internal correspondence to his superiors, and referred his complaint about the Hoplite investigation to the Commonwealth Ombudsman.
We noted the Commonwealth Ombudsman’s reply to Mr Crawford following an investigation of his complaint. The Ombudsman’s office concluded that a number of factual errors had occurred in the investigation of Mr Crawford’s alleged unaccounted leave, and that: our office will be criticising the AFP’s handling of the CRAMS matter against you and recommending that the established finding against you be changed.
The following is relevant to Mr Crawford’s failure to pass the Integrity Module in order to transition. The document at T55 includes a Minute from Commander Ray Johnson, Manager, Professional Standards to Mr Crawford in which he detailed information he had received in connection with him. He noted that Mr Crawford had been subject of four PRS matters and two CRAMS matters as follows:
1)Encouraging false allegations against another AFP member in May 2006, PRS PROMIS 37490 – the matter was finalised by management action in July 2007 without involving a full conciliation process.
2)Mr Crawford misleading a Sydney Airport Corporation safety officer and a management action officer in March 2006, by stating he had left his airport driving authority at home when he did not have one. Matter finalised in January 2008 with the recommended outcome that Mr Crawford be counselled and monitored for compliance with adherence to AFP values for 12 months.
3)Using disabled parking space in 2005 – Reported by member of the public – Mr Crawford found to be using the space legitimately on a temporary basis.
4)Failure and delay to carry out approved AFP procedures in regard to bomb appraisals in 2009 – CRAMS 3316 – substantiated – recommendation that Crawford be stood down from BAO duties until retraining was successfully completed.
5)Actions relating to the application for transfer to Gold Coast Airport in 2009 – CRAMS 3413 – Complainant Mr Kendall Fox - established – recommendation he be counselled for not reporting for work at Sydney Airport on 9 and 10 June 2009, and be subject to increased supervision for 12 months.
6)Going home in a Protective Services vehicle whilst on night duty in 2006 – PRS PROMIS 36978 - unfounded – no action taken.
Mr Crawford responded to each issue in the Minute.
Mr Williams wrote to Mr Crawford on 1 July 2011 informing him that he had been assessed as not suitable to proceed through the AFP MACER recruitment process as a consequence of his Professional Standards record. In a further letter of 4 July 2011, Mr Williams informed Mr Crawford that his request for an extension of his compassionate transfer had not been approved by the National Manager Human Resources, and that he would be required to report for duty at Sydney Airport on 8 July 2011. He also advised that a request to take leave without pay would be considered.
In his statement at Exhibit R8, Mr Williams stated that he formed his views as a result of Mr Crawford’s Professional Standards Integrity Record, and his dismissive approach to the substance of that record which were not compatible with expectations of a sworn police officer. Mr Williams told us he was mindful of natural justice issues, and had developed a flow chart which we noted was an annexure to Mr Williams’ statement tendered at the Tribunal. Mr Williams said that in making his decision, he took into account Mr Crawford’s replies in answer to correspondence he had been sent, and he relied on the CRAMS outcomes. He said that he did not have access to personnel files or the CRAMS files in full. His role was not an investigative one, but rather to evaluate the officer on the basis of his Professional Standards Integrity Record. He acknowledged that notwithstanding the Commonwealth Ombudsman’s criticism of the subject matter of CRAMS 4782 (Hoplite), he had taken it into account in making his decision not to pass Mr Crawford on the Integrity Module. He said that Mr Crawford had been asked on several occasions to reply regarding his leave entitlements, and did not respond. He indicated that he had taken a global view of Mr Crawford’s integrity rather than aggregating individual CRAMS findings. Mr Williams said that he read the documents and Mr Crawford’s replies, and that it was not a scientific process, it’s a matter of analysis and executive decision. He also referred to the AFP National Guideline on compassionate assignment. He indicated the understood compassionate transfers were short term and provided to members in dire circumstances. He noted the Mr Crawford had been granted a temporary transfer for a period of two years.
Commander John Bourke
Commander John Bourke, now OIC, AFP, of Adelaide, Melbourne and Hobart Airports gave oral evidence at the hearing about CRAMS 3316, the bomb disposal complaint in which Mr Crawford was involved. The event took place on 21 April 2009, and the complaint made the following day, was found to be established on 29 June 2009 (Exhibit A5), before Mr Crawford had been given the opportunity to comment. The letter of 29 June 2009 at T32/437 indicated that the National Team Leader, BAO Program determined that Mr Crawford be stood down from BAO duties until a debriefing could be held, and a decision made whether further training was required. Mr Crawford’s reply on 17 July 2009 indicated: BAO procedures were carried out correctly to the best of my knowledge.
CONSIDERATION AND CONCLUSIONS
As noted above, the Tribunal has accepted, and Comcare does not dispute that Mr Crawford suffers a psychiatric disorder, being Adjustment Disorder, (also referred to as Anxiety State and Depressive Disorder in the delegate’s determination), which has been contributed to, to a significant degree by his employment with the AFP. Pursuant to section 7(4) of the Act, the deemed date of injury is the date on which the employee first sought medical treatment for the condition for which compensation is sought. We are satisfied, in this case, that that was Mr Crawford’s consultation with Dr De Wilde on 8 June 2010.
We noted that Dr Synnott opined that Mr Crawford may have been suffering a psychiatric condition which did not impair or incapacitate him for work in 2009, and that Ms Reynolds diagnosed adjustment issues in 2010.
The question this Tribunal has to determine is whether Mr Crawford is eligible for compensation for his psychiatric condition, or whether it is excluded pursuant to section 5A of the Act on the basis that the condition he suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
We note from Hart v Comcare (2005) 145 FCR 29 that if an injury is the result of an excluded cause it is immaterial if other employment related causes may have also contributed to the injury.
Mr Crawford’s claim for compensation to which we have referred above, was primarily concerned with his feelings of being harassed, alienated and treated with disdain by the AFP management at the Gold Coast Airport. However, we discerned from the evidence that the issues raised by Mr Crawford in regard to the cause of his psychological condition have related to:
·His requests to transfer to the Gold Coast Airport;
·His treatment at the Gold Coast Airport;
·The determination by the AFP that he did not pass the Integrity Module in order to transition to a sworn officer;
·His view that he was overlooked for a permanent transfer, that is his failure to obtain such a benefit.
We are aware also of the family pressures Mr Crawford has suffered as a result of his father’s illness, and that he told us he applied for a transfer to the Gold Coast Airport in that regard in 2007. We note also Dr Synnott’s evidence that Mr Crawford did not mention his father’s dementia to him, the assistance he was required to give his mother, and accordingly its impact on him, all of which Dr Synnott said would have had some psychological impact on him. We are mindful also of the AFP policy regarding compassionate transfers which are intended to be short term. It is also not in dispute that by May 2011, Mr Crawford’s father was in permanent residential care, and did not require the daily attention he may previously have had from his son.
We deal with each area below.
The Transfer
We have considered the large amount of evidence, including correspondence before us regarding the transfer. Mr Crawford told us that he requested a transfer to the Gold Coast Airport in 2007 in order to assist with his father’s illness, and to assist his mother. The evidence indicates that his request was made on 26 March 2008, and granted conditionally following a meeting of the Transfer Committee in Canberra on 26 March 2009. The conditions imposed, which we accept Mr Crawford understood and accepted, and we find reasonable, were that the transfer was for a period of 12 months, and that the transfer was at Mr Crawford’s own expense.
We also find it reasonable that the transfer was subject to negotiations between Sydney and Gold Coast Airports regarding a release and start date, as the availability of the position to Mr Crawford was dependent on the Gold Coast Airport officer whom Mr Crawford was to replace completing all the gateways for his IDG deployment to the Solomons for 12 months. Mr Crawford knew that, and we are satisfied he knew at the time he relocated his family on or about 1 June 2009, that the Gold Coast officer would not be undertaking his course until approximately 25 June 2009.
However, Mr Crawford, although he had been with the AFP since 2001, has held a Top Secret security clearance since 2008, and is qualified as a BAO, did not await the documentation, or paperwork to confirm his release from Sydney Airport, and his start date at the Gold Coast Airport.
In early May 2009, Mr Crawford arranged an informal meeting with Mr Gray, the Sydney Airport Commander, his chief, rather than other persons in the appropriate chain of command. On the basis of what Mr Crawford says he understood Mr Gray to agree to, Mr Crawford wrote an email to Mr Gray following the meeting on 4 May 2009, severed his ties in Sydney, gave up the lease on his home, took his children out of daycare, and moved to the Gold Coast on or about 1 June 2009, without the appropriate authorisation. In the email Mr Crawford posited certain dates, and wrote as if they had been approved, although he had no indication they were approved, and agreed that was so when cross-examined:
… I will apply for leave, through Harry [Kopsaris], on Monday the 1st of June for 1 week, then start at Gold Coast on Monday the 8th of June officially.
Mr Crawford also widely publicised his departure by sending an email dated 15 May 2009 inviting colleagues for farewell drinks on 30 May 2009, even before he had paperwork to confirm his release from Sydney and commencement date at the Gold Coast Airport.
When Mr Crawford turned up at Gold Coast Airport on 5 June 2009, no one there knew he had left Sydney, although the Sydney Airport managers had a suspicion he had moved without authority when he did not turn up for work on 9 June 2009. Mr Fox instituted CRAMS 3413 which concerned Mr Crawford’s unauthorised departure from Sydney Airport, and non-appearance for work at Sydney Airport on 9 June 2009. Not surprisingly, the correspondence in that period indicates that the Gold Coast Airport was unprepared for him.
We noted from the evidence that Mr Gray supported Mr Crawford’s transfer, but accept that given his position, he was not involved in the detail, and would not have expected Mr Crawford to move without the requisite authority and paperwork. The AFP is a paramilitary organisation, as he said to us. He said that he was not offended by the informal nature of Mr Crawford’s email of 4 May 2009, because he has an informal management style, but that he receives a large number of emails, and would not have expected to personally deal with the contents of the email. Mr Gray also denied Mr Crawford’s assertion that he gave him assurances that Mr Crawford would receive a permanent posting at the Gold Coast. We prefer the evidence of Mr Gray over that of Mr Crawford with regard to their meeting and the email on 4 May 2009, accepting that the Sydney Airport Commander would not be personally involved in the detail of a PSO’s compassionate temporary transfer.
We are satisfied that Mr Crawford was aware of all the circumstances involved in his transfer, and chose to ignore them and move himself and his family to the Gold Coast before he had been so authorised. We are satisfied from the evidence that the AFP management of the transfer was reasonable administrative action carried out in a reasonable manner.
How Mr Crawford was treated at the Gold Coast Airport
As to the reception Mr Crawford received at the Gold Coast Airport; it is not in dispute that no one there had been informed or agreed that he would commence work there on 8 June 2009, as neither Mr Crawford’s departure from Sydney, not his commencement date at the Gold Coast Airport had been arranged or authorised. The correspondence in the voluminous folders before us indicates that there was consternation about the fact Mr Crawford had acted without authority in leaving his substantive position in Sydney. We were mindful Mr Gray supported the transfer, but expected Mr Crawford to act according to established protocols, which included not leaving his post without the relevant start date and paperwork.
We noted also that Roger Brown supported the transfer in principle, but was aware there were no PSO positions available at the Gold Coast Airport until the officer who was deploying to the Solomons had completed his course, and was concerned Mr Crawford had acted outside his authority in moving without documentation authorising the transfer.
When a start date was confirmed by the Transfer Committee for 6 July 2009, which was an action we find was taken reasonably, Mr Crawford commenced work at the Gold Coast Airport. Roger Brown also told us that once the 12 months transfer had been approved, the staff at the Gold Coast Airport welcomed Mr Crawford.
Mr Crawford also wrote in his letter of 30 June 2011 to Comcare that on the day he accepted the transfer, he received a call from the Gold Coast Airport OIC congratulating him on the transfer, and confirming what he understood: don’t worry about the temporary status, we’ll make you permanent once you get up here. He stated that those assurances continued for two years, although in effect he was overlooked for at least three PSO positions at the Gold Coast Airport with no explanation given. He also stated that Mr Gray told him once he was up in Queensland, he could arrange to have his transfer made permanent. In that regard we prefer the evidence of Mr Gray who did not agree he had given any such assurance to Mr Crawford, and had treated the informal meeting and email which Mr Crawford sent to him on 4 May 2009 as simply that. He said that he had no role in the specifics of a PSO relocating, and left that to his officers.
We are mindful also that Mr Crawford’s evidence about his reception at Gold Coast Airport is quite contradictory. He told us that no one talked to him for two months after he commenced work, and stated in a letter of 30 June 2011, that he had heard opinions expressed that he intimidate[d] management, and didn’t fit the Gold Coast Airport mould because of [his] looks and … character. Mr Crawford also stated in his letter to Comcare dated 30 June 2011, that the way he had been treated for two years by the officers, supported the above, and stated that: I have suffered severe stress, humiliation, emotional distress, displacement and isolation brought on by the treatment I have received from the management of the AFP Gold Coast Airport.
Notwithstanding the above, Mr Crawford told us in replies to questions in cross-examination that in 2010 after 12 months at the Gold Coast Airport, everyone there was supportive and sympathetic of his request to extend his compassionate transfer posting. He said that he got on well with the OIC Gary Brown, Mark Dumble who was there for a short time, and that Mr Rose did not hold him in disdain or harass him, or alienate him.
We noted also from the evidence before us that Mr Crawford’s performance appraisals at the Gold Coast Airport were satisfactory.
On 17 May 2011 Mr Crawford wrote to Mr Williams in support of his strong desire to further extend his stay at the Gold Coast Airport. He referred to the care he gave to his parents, and to the fact he had committed himself financially, and was building a home next door to his parents. He stated that he hoped he had made a good case to remain as part of the Gold Coast Airport team, which he thoroughly enjoyed being a part of.
We have no indication other than from Mr Crawford’s inconsistent observations noted above, that he was treated with any disrespect by the managers or staff of the Gold Coast Airport. We are mindful Roger Brown did not support Mr Crawford’s transfer initially because of the way he pre-empted it. However, we have no further evidence that Mr Brown did not treat Mr Crawford appropriately after he commenced work at the Gold Coast Airport.
We note that Mr Crawford lobbied extensively to remain at the Gold Coast Airport permanently, and that he was committed financially during 2010 as he built a house on a block of land his family owned which was next door to his parents. He did this without knowledge that his temporary posting would be extended or indeed made permanent.
On 8 June 2010, Mr Crawford attended at Dr De Wilde whose clinical notes reflect Mr Crawford’s distress regarding his father’s mental state, and his anxiety about not having his temporary posting extended for a second year. He was referred to a psychologist, Ms Reynolds who wrote to Dr De Wilde that Mr Crawford had informed her if he was extended for another six months at the Gold Coast Airport, he would not need psychological input.
We had inconsistent evidence from Mr Crawford which contradicted the allegations of harassment, and being treated with disdain by officers at the Gold Coast Airport. In reply to questions in cross-examination he did not nominate one person who had treated him in the way alleged in his claim form, and he had written on several occasions how content he was to work at the Gold Coast Airport, and wished to remain, and indeed achieve permanency.
We accept the AFP’s handling of Mr Crawford’s extension at the Gold Coast Airport for a second 12 months from mid-2010 to July 2011 was reasonable administrative action taken in a reasonable manner, and took into account his wish to remain there to assist his parents.
Mr Crawford’s view that he was overlooked for a permanent transfer and his failure to obtain such a benefit
We are mindful that Mr Crawford hoped and expressed the desire throughout his time at the Gold Coast Airport, that the transfer could be extended, and that he would be made permanent there, in order, as he told us, to be able to care for his father who was sick, and his mother, who was ageing. Of course Mr Crawford was not the only person wanting a transfer, although he says he was discriminated against, and overlooked at least three times when other staff were made permanent.
In that regard we noted that whilst Mr Crawford’s preference would have been to remain at the Gold Coast Airport, by May 2011, his father was in permanent care, and his presence was therefore not as critical as previously.
As to the non-extension for a third year or a permanent posting; Mr Crawford received an email dated 30 April 2010 informing him that his temporary arrangements at the Gold Coast Airport were due to expire. We note he was offered the opportunity of making a submission about why he should be given a further extension. We are satisfied that the evidence before us indicates that the action of the AFP was reasonable administrative action taken in a reasonable manner.
When Mr Crawford heard that his tenure at Gold Coast Airport was not to be extended, and he saw himself rostered for work at Sydney Airport on 8 July 2011, he left work claiming stress and chest pain on 10 June 2011. He has not returned. His reaction to the failure to obtain the benefit of a permanent position at the Gold Coast Airport falls within the exclusion in section 5A(1) of the Act.
The determination by the AFP that Mr Crawford not pass the Integrity Module and could not transition to a sworn officer
Mr Crawford was informed officially on 1 July 2011 that he did not pass the Integrity Module of MACER, although he says he knew by 21 May 2011. What it meant was that he would not be able to transition to a sworn officer. He knew that there were to be no further positions for PSOs at airports other than Sydney, so that his posting at the Gold Coast Airport was unlikely to be extended on a further temporary basis, and that he would not be offered a permanent position.
Notwithstanding the MACER issue may not be within the time frame required in considering this matter, we have considered it, because considerable evidence was given about the process, and the reasons for Mr Crawford not passing the Integrity Module. The MACER issue is connected with the non-extension of Mr Crawford’s tenure at the Gold Coast Airport.
The CRAMS reports and Mr Crawford’s resultant failure to pass the Integrity Module of MACER caused him anxiety and stress. We note he had passed the other modules. We are also mindful that Mr Crawford referred the CRAMS report dealing with the Hoplite (leave) Inquiry to the Commonwealth Ombudsman who was critical of it.
Mr Williams, who assessed Mr Crawford for the Integrity Module, and decided he should not pass, took into account all the CRAMS reports, including the Hoplite Inquiry which exonerated Mr Crawford in regard to recording leave. Notwithstanding that exoneration, Mr Crawford did have an adverse finding made against him as a result of that inquiry.
We are satisfied that Mr Williams’ task was to take a global view, and to accept the CRAMS reports as they stood, rather than investigating them further. We are satisfied that he was required to take the results into account rather than analysing how the conclusions were reached, which was a task for other persons.
Mr Crawford’s failure to pass the Integrity Module contributed to the decision that Mr Crawford’s tenure at the Gold Coast Airport would not be extended, and that he would not be offered a permanent posting there. We find that the decision taken was reasonable administrative action conducted in a reasonable manner.
We are satisfied from the evidence that in regard to MACER, Mr Crawford was dealt with pursuant to reasonable administrative action taken in a reasonable manner, and is therefore excluded from receiving compensation for his psychiatric condition pursuant to section 5A of the Act.
CONCLUSIONS
Mr Crawford’s claim form dated 16 June 2011, claims that he was injured on 6 June 2010. In reply to the question on the form asking: What actually injured you or made you ill? Mr Crawford replied: Constant harrassment, displaced [sic] treatment, alienation and total disregard for my circumstances on a personal level. Constantly treated with disdain in office.
We are not satisfied from Mr Crawford’s evidence or the other evidence before us that Mr Crawford was treated with disdain, or that there was total disregard for his circumstances. On the contrary, notwithstanding he had relocated from Sydney prior to receiving authority to do so, Mr Crawford served his one year of compassionate transfer satisfactorily, and was extended for the following 12 months.
As to Mr Crawford’s psychiatric illness; Dr Synnott noted he was able to do his work well for the two years 2009 to 2011, and that matters came to a head in mid-2011 when he was informed he would not be approved for a permanent transfer. Dr Synnott also noted that Mr Crawford had not mentioned his father’s dementia to him, and the assistance he was required to give his mother, and accordingly its impact on him, which Dr Synnott said would have some psychological impact on him. Dr Synnott opined that it was an industrial issue and not to be resolved with psychiatric intervention.
We are satisfied from the evidence that Mr Crawford was the subject of reasonable administrative action taken in a reasonable manner in regard to his transfer from Sydney Airport to the Gold Coast Airport. We are similarly satisfied that the extension of his compassionate transfer for a second year was reasonable administrative action taken in a reasonable manner, and that the requirement he return to Sydney and the notification to him was similarly reasonable administrative action taken in a reasonable manner.
He had not passed the MACER Integrity Module, and could not transition to be a sworn officer. He was accordingly required to return to his substantive posting, was not extended for a third year, and was not given a permanent posting. He said that he knew by May 2011 that he would not be permitted to transition. However, the official notification came on 1 July 2011 which is after the period when Mr Crawford had left work on 10 June 2011.
We are satisfied that Mr Crawford’s psychological condition is not compensable because it resulted from reasonable administrative action taken in a reasonable manner.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 143 (one hundred and forty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger and Dr H Toh, Member. .........[sgd]...............................................................
Associate
Dated 18 June 2013
Dates of hearing 5-6 November 2012, 19-20 March, 22 April 2013 Counsel for the Applicant Mr J Dodd Solicitors for the Applicant Leigh Virtue & Associates Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Australian Government Solicitor
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