Tregear and Australian National University (Compensation) [2019] AATA 316 (1 March 2019)
Division:GENERAL DIVISION
File Number(s): 2016/0951
Re:Peter Tregear
APPLICANT
Australian National UniversityAnd
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:1 March 2019
Place:Canberra
The Tribunal sets aside the decision under review and remits the matters to the Respondent for assessment of incapacity payments incurred in relation to the Applicant's mental injury occurring on 16 December 2014 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act1988, with the direction that as at 30 August 2015 the Applicant remained incapacitated for performing his substantive role as Head of the SoM. .....................................................................
A G Melick AO SC, Deputy PresidentCatchwords
COMPENSATION – Whether the Applicant was incapacitated for performing his substantive role as Head of the School of Music (SoM) as at 26 June 2015 and to the date of his separation on 30 August 2015 – whether the Applicant remained incapacitated for the role as Head of the SoM beyond his separation from the ANU on 30 August 2015 – Applicant did not make an absolute recovery from his ‘adjustment reaction with mixed emotional features’ – whether it was reasonable within the meaning of s 19(4)(f) of the Safety Rehabilitation and Compensation Act 1988 (the Act) for the Applicant not to continue in the role of the Head of the SoM – whether the Applicant was ever offered the position to be created and called the Director of Music and, if so, whether it was reasonable within the meaning of s 19(4)(f) of the Act for the Applicant not to accept that role – Applicant entitled for incapacity payments in accordance with s 19(2) of the Act – reviewable decision set aside and remitted.
Legislation
Safety, Rehabilitation and Compensation Act1988, ss 4, 16, 19
Cases
Dorothy Norma McHardie and Comcare [1997] AATA 264
Evans and Australian Postal Corporation [1995] AATA 691
HYJZ and Comcare [2015] AATA 766
Lonergan v Comcare [2005] FCA 377
Shanahan and Australian Postal Corporation [1995] AATA 420
Sollazzo and Comcare [2000] AATA 65
Secondary Materials
Peter Sutherland, John Ballard and Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988, (The Federation Press, 11th ed, 2018)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
1 March 2019
INTRODUCTION
The Applicant, Mr Peter Tregear, was employed as a Professor at the School of Music (the SoM) at the Australian National University (ANU). There was much friction and many disputes between the Applicant and the SoM, the details of which are set out in greater detail below. Although he was tenured to 12 February 2017, the Applicant’s employment was terminated on 30 August 2015, pursuant to a deed between the parties on 13 August 2015.
The then Respondent, Comcare, made a decision accepting liability on 1 April 2015 for treatment costs but later determined that the Applicant was no longer incapacitated for work from 26 June 2015. The Applicant has sought a review of the latter decision.
BACKGROUND
In 2012, the Applicant was appointed as Head of the SoM at the ANU with an initial employment period of 18 months. That contract was later extended for a further fixed term period of three years.
The Applicant submitted a claim for compensation for anxiety and depression on 15 December 2014 (T8) citing the following factors as being causative of his condition:
(a)managing an academic department, and undertaking requisite research, teaching and public outreach obligations;
(b)long-term chronic understaffing of the school and lack of resourcing either to provide additional resourcing or provide a strategic framework to lower academic and administrative responsibilities in response; and
(c)managing the impact of three (and at one point five) academic staff out of approx. 10 FTE on ongoing stress related leave, and lack of adequate and stable (i.e. not on short-term contract) professional support staff cohort.
The Respondent accepted liability for ‘adjustment reaction with mixed emotional features’ on 1 April 2015 (T19). The Applicant ceased his employment with the ANU on 30 August 2015.
Shortly thereafter, the Applicant sought payment of further incapacity payments to reflect the difference between his previous salary and his lower paid position at the Royal Holloway University in the United Kingdom.
That claim was rejected upon the basis that the Applicant was no longer incapacitated for work as a result of the earlier accepted condition (T41). Upon a reconsideration decision, it was rejected for the same reasons together with an assertion that in moving to the United Kingdom the Applicant had revoked the prospect of a position with suitable duties at the ANU (T47, p. 205).
EVIDENCE
There were voluminous materials set out in the parties’ statements of facts, issues and contentions, as well as in their closing submissions. Set out below at paragraphs 10-176 are detailed facts that were either agreed by the parties or not in dispute prior to the hearing. There was no evidence led in relation to some but I was not persuaded by the Respondent to make no finding in relation to such facts as no point was taken until after all the evidence had been led, written submissions not being filed until two months after the evidence had concluded.
I have inserted relevant comments or additional facts where there were some additional facts or differences as a result of the evidence and, unless otherwise stated, the above mentioned paragraphs reflect my factual findings in relation to the matters referred to therein.
When initially hired on a fixed term contract, the Applicant's role as outlined in the position description was:
… Lead and manage the school through the change management process, including:
1Manage and deliver the implementation of the curriculum model is outlined in the School of music implementation document to ensure delivery for 2013.
2Manage and deliver the staffing structure to support the new curriculum delivery.
3 Manage and deliver staffing structure to support the new curriculum delivery.
4Manage the schools budget to limit expenditure yet provide stability through the change process.
5Ensure that resources are managed in accordance with legislation and University policy.
6Foster and maintain effective relationships with key internal and external stakeholders.
7Ensure that the University's commitments to current students are fulfilled.
8Foster effective and professional working relationships with the College General Manager and staff and students of the School.
9Conduct other duties is consistent with the classification of the position.
The Applicant was given the task of fixing pre-existing problems in the SoM.
The Applicant suffered a compensable psychological injury.
The Applicant was examined by his general practitioner, Dr Ann Cockburn, on 16 December 2014 who certified that he was suffering from anxiety and depression. Dr Cockburn further certified him unfit for work between 16 December 2014 and 16 January 2015.
On 18 December 2014 an ‘Extraordinary SoM Staff Meeting’ was chaired by Professor Paul Pickering. In the meeting, a statement written by Dr David Irving was read in which he indicated that the SoM did not have the full support of the ANU and that the SoM was chronically understaffed (Exhibit 6, Attachment A). Included was the following:
I have no confidence in the university that demonstrates insufficient support of my own head of School, and which keeps our staffing at such a critically low level… It is an economic and educational fallacy to imagine that overworked staff can engage in “unlimited growth” of student members without serious cost to the personal welfare of staff and students, and the reputation of the ANU. We need our head to be on a continuum contract and we need more academic and professional staff. Or, simply put, it is time the ANU finally honoured both the spirit and the letter of the agreement it made with its employees and the wider community in 2012.
The Applicant lodged a claim for workers’ compensation on 16 December 2014 (T8). He listed causative factors which included a lack of resourcing and understaffing.
The Applicant was examined by Dr Cockburn on 23 January 2015 and she certified that he was fit to work 10 hours per week with modified duties between 23 January 2015 and 6 February 2015. The consultation notes (T5, p. 28) included:
[He] feels able to start a gradual return to work. There is a planning day on 2.2.15 which is very keen to attend. May work 10 hours a week to prepare for planning day only… Brigitte (Brigitte Nairn, Occupational Therapist) will have discussions with his boss. Boss has allegedly sent him an email saying that he will not offer any assistance in this matter. In long-term must ensure that it is not go back to a situation we has to work 18 hours a day, seven days a week which has been the case for some time... [sic]
An initial needs assessment report was completed by Ms Brigitte Nairn on 2 February 2015 which outlined a strained relationship between the Applicant and his supervisor Professor Pickering (T14, p. 67). The report also outlined the Applicant's perception that he was not being supported by the ANU in managing the public perception and expectations of the SoM and also that he had a lack of resources to achieve his goals. The report further outlined that Professor Pickering rejected these assertions and that a one semester period of study leave was proposed. Mediation between the Applicant and Professor Pickering was recommended but declined by the latter.
The Applicant was examined by Dr Cockburn again on 6 February 2015 and was certified fit for modified duties between 6 February 2015 and 6 April 2015 but only fit for research leave and international travel. Consultation notes indicated that in the long term the Applicant would have to negotiate conditions for him to return to full duties.
It was agreed with Professor Pickering by email on 6 February 2015 (Exhibit 4, Attachment B) that the Applicant would continue to be in contact with donors. Professor Pickering stated:
An important part of my proposal is that Sam, you and me sit down on a regular basis to keep you up to speed on what's happening in the School. I'm sure this will make it easier for you to pick up the reins in second semester. I think that this will also be a good opportunity to discuss the situations as they arise and the coordinate a strategy in relation to them.
Professor Pickering wrote to the SoM staff and announced that the Applicant would be taking a period of research leave for the first semester, beginning 6 February 2015.
Dr Cockburn provided a medical report dated 12 February 2015 (T15) in which she opined that the Applicant was able to work full time hours (38 hours per week) during research leave; where he would be able to work at his own pace and would not be required to attend any of his usual duties.
A rehabilitation programme dated 23 February 2015 (T16, p. 77) outlined that, whilst study on leave until 20 July 2015, the Applicant:
Will not be engaging in the operational running of the School or represent the School as head or transact any ANU business in that role. To assist with this Prof Tregear has a clear message on his email account that directs the sender to the appropriate person and when working in the SoM building he indicates clearly that he is on study leave.
Prof Tregear and Prof Pickering will be meeting regularly so Prof Tregear is briefed on the developments at the School.
The Applicant received a number of text messages from a parent of a recently graduated student on 27 February 2015 questioning what he was doing in London and indicating displeasure that he was not at the ANU. The Applicant forwarded the text message to his rehabilitation provider, Ms Beverly Jende, and case manager, Ms Nairn, indicating that the message had ‘rattled’ him (Exhibit 5, Attachment K).
The Applicant became aware of a number of messages following the unexpected resignation of Mr David Pereira including statements such as ‘Shame on those at ANU SoM responsible for this!’ and accusing the management of the ANU SoM of being ‘bankers dressed as academics’ (Exhibit 5, Attachment K). The Applicant forwarded the information to Ms Jende and Ms Nairn and indicated his concern that the SoM was returning to a state of public crisis in his absence.
On 1 March 2015 Professor Stephen Downes of the Department of Music at the Royal Holloway University of London emailed the Applicant asking if he had seen an advertisement for a new position and was interested in moving back to the United Kingdom.
On 2 March 2015 Ms Nairn sent an email to the Applicant and Ms Jende stating that Professor Pickering will keep the Applicant informed about SoM matters to avoid surprises (Exhibit 5, Attachment K). On 2 March 2015 Ms Jende also responded to the Applicant and Ms Nairn, stating that she was sorry to hear the Applicant had been drawn into events despite his best efforts to distance himself, noting that was a reason for his travel to London (Exhibit 5, Attachment K).
The Applicant emailed Professor Pickering on 2 March 2015 indicating that he had been surprised by some events and requesting that Dr Samantha Bennett keep him up to date. He indicated that he had no intention whilst on leave of getting involved but needed to be kept up to date on points of risk. Professor Pickering, in Dubai at the time, emailed and indicated that he had also been ‘blind-sided’ by recent events.
On 20 March 2015 an email was sent on behalf of Dr Bennett (Exhibit 26) to a number of members of the SoM but excluded the Applicant. The email stated:
Please consider the following in relation to our School now and into the future:
(a)Our key School strengths (teaching and research)
(b)The ‘shape’ of our School
(c)Our School image
This is a key meeting and an opportunity for us all to think about the very essence of our School. Please think about the above points and bring your ideas/prepared contributions.
In his statement dated 29 October 2016 (Exhibit 6) the Applicant indicated that, since the future vision and academic direction of the SoM was tabled as the only subject of discussion and, also the fact that he was not on the circulation list, caused some academic staff to be unsettled and subsequently contacted him with their concerns.
In a later statement dated 9 March 2016 (Exhibit 2), the Applicant indicated that he perceived conditions in the SoM had worsened which presented an impediment to his achieving a successful return to work, and that furthermore his absence was being used by the Acting Head of School (Dr Bennett) to institute changes in the SoM without reference to him. He wrote to the Chancellor, Professor Gareth Evans, by email on 31 March 2015 explaining his perspective and the risks to the ANU of a new public crisis at the SoM.
Ms Jende wrote an email appointing Dr Noel Walker to assist with the SoM on 23 March 2015. The email stated that the goal at present was to return the Applicant to his pre-injury role as Head of School.
The Applicant was examined by Dr Cockburn on 31 March 2015. She certified that he was unfit to work between 31 March and 13 April 2015 and recommended that he be treated by a psychologist and removed from the situation. Consultation notes indicate that the Applicant felt his research leave was being used as a punitive measure by his superiors and that he was concerned at the reputational damage caused when he was not able to assist with the SoM. The notes also indicated that the Applicant was unable to complete his research during this period.
An email was sent to Professor Toni Makkai, Dean of the College (Professor Marnie HughesWarrington and Vice Chancellor (VC) Ian Young were copied into the email) by Dr David Irving, Dr Paul McMahon, Dr Erin Heylard, Dr Calvin Bowman, Mr John Mackey and Dr Alexander Hunter (all SoM academic staff) dated 31 March 2015. The email raised concerns regarding administrative support in the SoM, and in particular about the haste in which the SoM Manager had been moved out and the fact that the Applicant had not been consulted about this. The email noted that the Applicant was on research leave not sick leave and also raised concerns about the fact that he had been excluded from communications and invitations to certain public events (unlike other staff who were on sick leave).
The Respondent accepted the Applicant's workers’ compensation claim for ‘adjustment reaction with mixed emotional features’ on 1 April 2015 (T19). The Respondent deemed the date of injury to be 16 December 2014. The ANU did not dispute the claim and accepted that the Applicant perceived the events in the way he described.
On 1 April 2015 the Applicant attended a meeting with Chancellor Evans to discuss the SoM, in response to an email he sent Chancellor Evans the previous day (Exhibit 4, Attachment G) in which he stated:
…the School of Music has returned to a position of chronic instability such that the ANU is now running a significant risk of seeing a return to a mess not altogether dissimilar to three years ago--except this time I suspect rebuilding public and professional trust will be so much more difficult, if not impossible.
The Applicant stated, furthermore that:
I have as much reason, perhaps even more, as the ANU to want to avoid a dismal fate for the School and above all its students (let alone the likely press reaction)-- and I still hope that there can be an appropriate intervention before it is too late. The situation is deteriorating very quickly and I really do not feel I have anywhere else to go but to Council—I am now haemorrhaging senior academic and administrative staff because they do not feel (and I cannot in all good conscience argue to them otherwise) that the School has currently, a viable future.
Dr Irving emailed Professor Pickering and the Dean of the College on 2 April 2015, stating:
I am personally disappointed that the staff of the School of Music are being told by senior ANU figures that everything is fine when a large number of staff -who experience daily life within the School -have made it abundantly clear that there are indeed major operational problems at present... I find it astonishing that the Head of School – our only Level E academic in the School – has been effectively “excommunicated” from our community… this afternoon two more announcements were sent by the Acting head of School which included members of staff who are on sick leave, but excluded the Head of School who is on research leave… (emphasis in original)
On 10 April 2015 an email regarding a staff meeting was sent by Dr Bennett to all SoM staff but excluding the Applicant, who at the time was certified totally unfit for work. The student and curriculum coordinator, Ms Harriet Torrens, noted that the Applicant was not included and forwarded the email to the Applicant for his information, noting the email been sent to other members of staff who themselves were on sick leave. She copied in Dr Alexander Hunter and Dr Irving. In an email dated 10 April 2015 (Exhibit 2, Attachment A), Dr Hunter noted:
I received a phone call from our Acting Head of School Dr Bennett yesterday afternoon informing me that she has not been responding to emails where Prof Tregear has been CC-ed.
This is apparently due to her explicit instructions from Paul Pickering not to communicate with Prof Tregear on SoM business.
Dr Bennett communicated to me via telephone that we are not to communicate with Prof Tregear regarding SoM business and when asked for a reason, she stated that it would violate the Privacy Act...
A claim form for Time off Work dated 14 April 2015 lists the Applicant’s normal weekly earnings as $3,511.65, including $447.41 allowance effective from 3 July 2014.
A medical review took place on 14 April 2015. A progress report regarding the Applicant's return to work dated 10 July 2015 written by Ms Jende (T27, p. 135) states:
Peter Tregear was very anxious and distressed. He stated that he wanted to return to his role as Head of School of Music as otherwise he would not have a role to go back to. Dr Cockburn advised that she is not able to certify him fit to return to his Head of School duties but that she can see that it is a catch 22, with Professor Tregear getting more and more distressed and anxious, which then prevents him even more from returning to his role.
Doctor Cockburn cleared Professor Tregear to go to the School of Music for getting professional material from his office but that he was not fit for formal study leave. He was fit to meet with management.
Consultation notes are to the same effect and outline the Applicant's concern regarding his reputation.
An email from Ms Margaret Theakston (Associate Director Work Environment Group) to Ms Melissa Austin about the Applicant on 20 April 2015 stated:
Tried phoning on Friday and just now to let you know:
·Peter told Bev he has an interview for a job in the UK in mid-May
·Peter told Bev that when he met with the VC that he wanted exit strategy i.e. a separation package.
·Brigitte did not speak to Peter before she went on leave
·Bev plans to touch base with Peter today
The Applicant met with VC Young and Professor Hughes-Warrington on 22 April 2015.
In his statement dated 9 March 2016 (Exhibit 2), the Applicant stated that VC Young and Professor Hughes-Warrington gave him undertakings that his supervisor would change and that there would be a change in resourcing. The Applicant reported there was agreement for a 'Level D’ appointment to provide senior academic support for the SoM and his leadership but such an agreement was disputed by Professor Hughes-Warrington. I considered the impact one way or another about this dispute was not significant in the overall scheme and found it unnecessary to make a specific finding outside of the fact that such a discussion occurred.
In his statement dated 2 December 2016 (Exhibit 39), VC Young stated that he had provided the Applicant with the ongoing contract to provide the Applicant a:
… reversionary professorial position within the School of Music once his contract as Head of the School had ceased. It also allowed the Applicant the flexibility to stand down as Head of the School any time he wished to do so and still be assured of employment.
VC Young acknowledged that this was in fact the norm across the University. VC Young indicated that the Applicant had raised some concerns he had regarding administrative issues to do with the SoM and agreements to certain actions.
VC Young sent an email dated 22 April 2015 to the Applicant and copied Professor Hughes-Warrington (Exhibit 39, Attachment A) which stated:
I would like to confirm the elements of our discussion today.
·The Head of the School of Music (Peter Tregear) will report to the DVC(A) Marnie Hughes-Warrington
·We will agree a base level of staffing for the School of Music
·Both of the above points will be for a period of 3 years or until there is an a [sic] conducive environment in CASS. after which the School will return o [sic] the College
·You will be offered an ongoing Level E position and a separate fixed term contract as Head of School (i.e. same conditions as other Heads of School)
·Marnie will review the entry criteria for the Bachelor of Music
·The University will develop a dedicated marketing program for
·Music and Art
·We will meet with both the Friends of the School of Music and the
·School of Music Foundation and indicate the University is doing its bit. If they want a School it is about time they acted to support the School (both financially and in the media).
Finally, Paul Pickering has left me a message (less than 2 hours after our meeting) indicating that he has heard that you have commented that ''you have been reinstated etc". I remind everyone that this discussion was confidential. If Paul has learned the content of this agreement it is unfortunate and will make implementation far more difficult.
In the Applicant's statement dated 16 December 2016 (Exhibit 7), he states of this meeting:
... I disagree that Professor Young agreed at this meeting of 22 April simply to 'placate' me by stating I would be offered an on-going contract… he made this concession because, as he had declared to me, he had discovered that my claim that it seemed that all other Headers of School at ANU did have an underlying appointment was in (act true. I had been making this point to my supervisor and to the Dean of the College for over a year without getting any explanation as to why I was being treated as an exception. But in pushing this issue, I was not seeking to be 'placated'. Instead, I knew that whosoever held the Headship of the School could only find the task of rebuilding internal and external confidence in the School of Music especially difficult without some form of employment security as a foundation from which to demonstrate instructional support (or her or his work).
In the Applicant's statement dated 4 July 2016 (Exhibit 3), he quoted from an email he had sent in reply to VC Young’s email of 22 April 2015 in which the Applicant reassured VC Young that he had not mentioned to anyone that he ‘was being reinstated’ not least because he knew this was not possible without medical clearance. The Applicant restated that he was, however:
very aware there have been separate meetings (it’s been a very unpleasant environment) among staff over the past weeks, days, and for all I know, hours, but I do know they have come to see it as one where I have been ‘removed’ by Paul from the HoS position – I can only assume that that’s where that’s coming from. It’s been a deeply unpleasant few months here -- the quicker there is certainty the better for all concerned.
On the basis of the undertakings made at the meeting the Applicant withdrew his application for the post at Royal Holloway, University of London for which he had been invited to apply, and for which he had subsequently been shortlisted.
On 24 April 2015 the Applicant was advised by staff from the SoM that ‘AFP or security officers had looked for him at the school on 24/5/15’ (T27, p. 137). He was extremely concerned about the message this had sent to staff and students and that there was no forewarning or apparent reason for the presence of security staff asking for him by name. Ms Torrens confirms in her statement dated 9 May 2016 that she received a telephone call from SoM Manager Dr Bishop-Witting (at that time seconded out of the SoM) asking whether she could confirm a report that three police officers had been to the SoM to look for the Applicant. Ms Torrens did not observe their attendance.
The Applicant states he was told by Professor Hughes-Warrington several weeks later (on or around 28 May 2015) that the security guards were sent to remove him because he was not meant to be in his office. The Applicant, however, had medical clearance to come onto campus and attend his office. In her statement dated 10 August 2016 Professor Hughes-Warrington stated that the attendance of three security guards to the SoM that morning had nothing to do with the Applicant and that they were simply there to let someone in who had been locked out. She denied the Applicant's claim and, having considered her evidence under cross examination, I accept that the Applicant was mistaken in his assertion and that the guards were not sent to remove him. However, I do find that the Applicant believed that they were sent to remove him.
Professor Hughes-Warrington wrote an email to Dr Nadine White dated 25 April 2015 seeking confirmation that the Applicant was on study leave until July and that Dr Bennett would remain as Acting Head even if the Applicant were declared fit.
On 27 April 2015 Dr White wrote to the Applicant indicating that from 28 April 2015 in the Applicant's role of Head of School that he would report to Professor Hughes-Warrington, Deputy Vice-Chancellor (Academic).
On 28 April 2015 Professor Stephen Downes wrote to the Applicant by email stating, inter alia:
… I'm personally really sorry you have pulled out, but perfect [sic] respect and understand your reasoning. It would have been terrific if things had worked out to allay you to come to RHUL; you would have been a fabulous member of the team…
… Let me know when you're in Blighty over the summer and we should meet for a few beers and a proper catch up. And I suppose you staying at ANU means the return visit, to destroy the relocated pub brewery, remains an option at some point!
The Applicant's treating psychologist, Professor Bruce Stevens, wrote a report dated 29 April 2015 at the Respondent's request (T21, p. 107). He diagnosed major depressive disorder with moderate symptoms. He opined that the Applicant was likely to fully recover once he had returned to work. He stated:
He [the Applicant] would appreciate an "honest and open" style of communication. I would recommend that Professor Tregear return to normal duties as Head of SoM as soon as possible, doing administration in the mornings and research in the afternoons (fulltime). He has reservations about the acting Head of School that was put in as an interim manager who in his view "over-reached and no communication". The main trigger to be avoided at present is Prof Paul Pickering. The VC has agreed that Prof Tregear should report to a different supervisor and I support this decision…
… he was given study leave to give him something of a break from work related stress. Unfortunately there has been continuing changes at the SofM since he went on study leave which he has found distressing - especially to see the dismantling of what he has built up. Recently he has met with the Vice Chancellor of ANU who has agreed to be more supportive including agreeing to a permanent appointment.
Dr Stevens also commended the ANU on the way it had responded to the Applicant in the plan instituted by the VC.
On 29 April 2015 a circular email was sent by Professor Pickering stating that the University would advertise a position at level E following discussions with the VC, Deputy VC and Dean who endorsed the decision. The email also announced Dr Irving's resignation. The decision to elevate the position from Level D to Level E was not discussed with the Applicant. The Applicant immediately rang Professor Hughes-Warrington and later wrote to her following receipt of an email from Dr West which indicated wider staff anger. The Applicant indicated his concern that he had not been forewarned of the change.
The Applicant sent an email on 29 April 2015 to Chancellor Evans and copied in Professor Tim Senden. In that email, the Applicant stated his concerns regarding the job advertisement, his previous understanding that the VC had agreed to the appointment of a Level D to provide support for the Head, and his understanding that the position was senior to his by virtue of the fact that the position was tenured.
The Respondent determined on 30 April 2015 that the Applicant's normal weekly earnings were $3,511.65.
The Applicant wrote to Professor Hughes-Warrington by email dated 5 May 2015 indicating that he found it distressing that his health related absence was used by Dr Bennett to launch a rebranding of the SoM that was not discussed with him.
The Applicant was examined by Dr Cockburn on 5 May 2015, who certified him fit for modified duties between 5 May and 22 May 2015. She certified that the Applicant should be removed from the situation, should resume study leave, continue meetings with Senior management and be involved in plans to return to work as Head of SoM. She certified he could attend his office, functions at the ANU or interstate. Consultation notes indicate that the Applicant was more positive.
On 10 May 2015 the Applicant received an email from Dr Irving forwarding an email he had sent to Professor Hughes-Warrington, the VC and Mr McCann of the National Tertiary Education Union. In his email he noted that there had been a general feeling of insecurity amongst the staff of the SoM over the prior few months. He noted that he had heard internal (at the ANU) criticism levelled towards a SoM production produced by the Applicant (i.e. towards the Applicant), which he considered unfounded.
A rehabilitation program alteration was completed on 12 May 2015 and was signed by Ms Nairn and Ms Jende but not the Applicant. A meeting was arranged for 20 May 2015 between the Applicant, his supervisor, case manager and rehabilitation provider to negotiate an updated return to work agreement and schedule. A need to provide the Applicant with up-to-date information about the SoM while he was on modified duties was identified.
The Applicant was assured on 12 May 2015 by Professor Hughes-Warrington that any appointments at a senior level would be discussed in advance with him.
On 14 May 2015 the Level E position was advertised (Exhibit 5, Attachment G). The Applicant contended that he had no warning about this advertisement but Professor Hughes-Warrington alleged that the proposal to hire a second Level E as a backup for the Applicant was discussed with him. The advertisement caused the Applicant considerable stress and he wrote to Professor Hughes-Warrington and VC Young to express his disappointment and noted that he would be taking some time to consider his position. The Applicant also noted that he had been assured by the international academic community that it was his position that was being advertised and thus it had caused him reputational damage. An ANU recruit validation approval form for the position advertised indicated that the hiring manager was Dr Bennett who approved the document on 4 May 2015 and Professor Pickering approved the advertisement on 6 May 2015.
Professor Hughes-Warrington emailed the Applicant late on 14 May 2015 (Exhibit 2, Attachment E) and stated:
The advertisement and PD were put forward without my or Ian's knowledge. At my request the advertisement has been taken down, and I am working with HR to ascertain what happened. I have not departed from my view that we will look at the PD together, and I will also ask Sam [Bennett] and the School to take a look before we progress the recruitment process
The Applicant responded via email on 14 May 2015 (Exhibit 2, Attachment E) and stated:
I took a huge risk personal and professional coming here in 2012 on the basis the University was acting in good faith… The School has been, it seems, returned to a position of crisis now because of a long, documented, string of broken or undelivered undertakings and misrepresentations to me both before and after I took leave. That, I believe, is not disputed.
On 15 May 2015 Dr Bennett emailed Professor Hughes-Warrington and copied in Dr White and Ms Jende. The email stated:
Just FYI, Peter has been in the building today, meeting with former VC Deane Terrell and sending emails pertaining to donors/prizes. Just to also let you know that Deane Terrell is often in our building looking for – or meeting with - Peter
Dr White's reply suggested a possible explanation was that both the Applicant and Mr Terrell were members of the Board of Directors of ‘Artsound’.
The Applicant and Professor Hughes-Warrington exchanged emails between 18-19 May 2015 discussing an email to be sent to the SoM staff prior to the Applicant's return. He noted that the finding of her investigation with regard to the advertisement of the Level E position was that no ANU employee was responsible. The Applicant stated that he found this implausible, and again raised the issue regarding his security access change and sought a response regarding the reason for the delegation of security officers sent to see him on 24 April.
A progress report regarding the Applicant's return to work dated 10 July 2015 written by Ms Nairn (T27, p. 138) states:
On 20/5/15 Ms Nairn, Ms Jende, Ms Theakston and Prof HughesWarrington met to discuss Dr Zsadanyi's report and the return to work. Dr Zsadanyi cleared Prof Tregear to return to the Head of School role, commencing with ½ days at the School and ½ days at home for 2 weeks and then return full time pre-injury duties at the SoM.
Prof Hughes-Warrington raised concerns about the relationship between Prof Tregear and the Acting Head of School. She thought this needed mediation and she was going to consult the acting Head of School as Prof Tregear had already indicated that he was prepared to engage with mediation.
Prof Tregear attended a medical review on the same day and was cleared for pre-injury duties with a graded return as specified in the psychiatrist report.
The Applicant returned to work full-time, on a graduated programme over two weeks, commencing on Monday 25 May 2015. In his statement dated 9 March 2016 (Exhibit 2), he reports that the substantial change in the SoM without consultation distressed him and, furthermore, when he returned to work several key staff had suddenly taken leave (including Dr Bennett) and the Applicant's security key access to the SoM had also been changed without his knowledge. A memo from Ms Alice MacDonald, School Administrator states that she was told the reason for this change was ‘to prevent people such as Peter Tregear from having access or from changing the Salta system’ and that she considered that the changes were ‘adversarial’, ‘prohibitive’ and infer ‘unwarranted distrust’ (Exhibit 2, Attachment G). Professor Hughes-Warrington in her statement dated 10 August 2016 suggests instead that the change of access was because on the instalment of a new security system.
Ms Torrens, a work colleague of the Applicant, wrote in her statement dated 9 May 2016 that she observed that the SoM was without appropriate administrative support throughout this period which limited the ability of the Applicant to do his job. She also observed that the Applicant experienced heightened stress due to his awareness of the stress of other members of staff. Ms Torrens reported that the Applicant had stated he felt alone, isolated and unsupported and ‘set up to fail’. She also observed the Applicant was agitated when he returned from meetings with his supervisor.
The Applicant requested a handover from Dr Bennett via email dated 25 May 2015 and she stated that she would provide the handover in documented form by close of business 27 May 2014. This did not occur.
The Canberra Times published an article dated 25 May 2015 titled ‘ANU pulls unauthorised job ad for School of Music’ (Exhibit 7, Attachment 7). The Article stated:
Australian National University management has been embarrassed by the publication of a job ad that appeared to seek a replacement for the school of music's head, Peter Tregear. The ad was quickly pulled ...When asked to clarify Professor Tregear's continuing status at the University, deputy vice-chancellor (academic) Marnie Hughes-Warrington issued a statement saying the ad had been a mistake and the job would be in addition to, not excluding, Professor Tregear, who had just been offered a new contract…
… the ad was also interpreted by some in the university community as a call-out to replace existing head Professor Tregear, who took on the troubled school in 2012 for an initial 18-month contract which has been renewed for three years.
Professor Tregear said he had been contacted by concerned staff and academic colleagues who wanted to know whether he was staying or going.
"As one might imagine, I was rather surprised when colleagues started to contact me out of the blue to tell me my job had been advertised. I was travelling interstate and it took a while to find out what was going on"…
Professor Hughes-Warrington stressed there was no move afoot to remove Professor Tregear.
“To ensure ongoing stability in the school's leadership, the head of the school of music, Professor Peter Tregear, will be offered an ongoing level E position and a fixed term contract as head of school." His current contract will expire in February 2017.
Dr White sent an email dated 25 May 2015 to Professor Pickering and Ms Julie Dunn (copied to Paul Mitchell, Karen Ford, and DVC Academic) indicating that the correct process was not followed for the advertisement, namely that the advertisement was not lodged by a person with the appropriate delegation (Exhibit 18). She indicated that the request was established in ANU recruitment by Ms Dunn as Acting School Manager (the nominee for the application) and Professor Pickering was listed as the delegate for approval (which he did not have).
Professor Pickering sent a return email to Dr White dated 25 May 2015 indicating that he apologised for his role (Exhibit 17). He stated:
… My understanding was that it was desired to put the advertisement into effect as soon as possible. This is not an excuse for the errors and omissions it contained.
I do realise that I do not have delegations to approve an appointment at this level. I believed - obviously incorrectly - that the delegations for such a post were held by the Dean. I also assumed therefore -obviously incorrectly - that following my endorsement the advertisement would be forwarded to [Professor] Toni [Makkai] for her to endorse...
Ms Dunn emailed Professor Pickering on 25 May 2015 apologising for her role in the advertisement error. She indicated that Human Resources also shared some responsibility as they said they would check everything before it was released for approvals (Exhibit 17).
The Applicant wrote an email to Professor Hughes-Warrington dated 26 May 2015 outlining his concern that there was an acute shortage of administrative staff in the School.
The Applicant subsequently met with administrative staff, whose absence had not been explained to him since he had returned to work, to discuss and resolve the situation. The Applicant reports that the matter was subsequently the basis of an untrue and defamatory report the existence of which he did not discover until many weeks later.
The Applicant emailed Dr Bennett again requesting handover notes on 28 May 2015, which were then provided to Professor Hughes-Warrington who then provided them to the Applicant.
A progress report regarding the Applicant's return to work dated 10 July 2015 written by Ms Jende (T27, p. 135) states:
On 29/5/15 Prof Tregear was in contact with the case manager and was in acute distress…
There were some questions around duties and what constituted undue pressure at work. Ms Nairn contacted the GP to clarify the medical certificate. Dr Cockburn noted that Prof Tregear had low resilience, was recovering from anxiety and depression and was easily overwhelmed. She cleared him for the coordination of the exam period and preparing a handover for his absence but not for completing a professional development plan. He was also cleared for the overseas travel and research/delivering papers.
The Applicant had some email correspondence on 29 May 2015 with Professor Hughes-Warrington outlining that Dr Bennett had set an auto-forward to her personal email address from the Head of School address and had thus been able to access his correspondence without authorisation. The email forward was rectified.
Sometime in late May to early June the Applicant learned Professor Hughes-Warrington and Dr Bennett had commissioned a ‘Market Survey’. The Applicant had not been consulted about the reasons for the brief and then found the existence of the survey was used to decommission work previously undertaken by the Applicant or delay future plans. In her statement dated 10 August 2016 Professor Warrington-Hughes denied this and stated that the Applicant was given the courtesy of seeing all draft questions and gave written email approval for them to proceed. The Applicant sent an email dated 1 June 2015 questioning what the ANU was hoping to learn from the survey and commenting upon the draft questions.
Ms Jende emailed the Applicant and cc'd Ms Nairn on 5 June 2015. In her email she stated:
… No change to Comcare claim following separation. ANU will remain the rehabilitation authority i.e. employer under the Comcare scheme. Brigitte the workplace rehabilitation provide[sic]. We still have obligation to provide good rehabilitation. You will have obligation to do all that is “reasonably practicable” to get better…
A progress report regarding the Applicant's return to work dated 10 July 2015 written by Ms Jende (T27, p. 135) states:
… Due to the aggravation to the injury Ms Jende organised a case meeting ...for 1/6/15. It was raised that Prof Tregear had asked whether there would be an option of separating from the ANU, which was being considered.
Prof Tregear left for an approved overseas conference on 3/6/15 and returned on 19/6/15. He reported that the option of separation had been raised with him prior to departure. He pointed out that he did not have confidence that the ANU would be able to provide him with a safe workplace or support his leadership and that separation may be the best outcome for him.
Ms Nairn met with Prof Tregear on 25/6/15. He was anxious and distressed and doubted that he could work at the SoM without further aggravating his condition. He had concerns about his leadership position, concerns about control over decisions at the School, noted hostility toward him by some staff, reported a lack of staff and a backlog of work.
Ms Nairn liaised with the supervisor who advised these issues were being addressed at regular meetings and that staff that had departed had requested a transfer...
On 3 June 2015 the Applicant met with Professor Hughes-Warrington and Dr Noel Walker, a University appointed occupational psychologist who remained silent. The Applicant wrote an email reporting on the meeting to his lawyer, detailing that he had requested support from management including action on their earlier undertakings concerning staffing levels and a renewed commitment to the strategic direction he had developed prior to his leave in 2014-15, in addition to other requests. Above all, he asked to be provided with a ‘viable job in a safe work place’. He reported (Exhibit 2, Attachment J):
It was clear from her reactions and her engagement (or lack of it in a lot of cases) that [the option of separation] was the one that only viable one. She, however, asked repeatedly 'what do you want'. I restated that I wanted a viable job in a safe workplace, but if the University was not prepared or otherwise unable to provide this, then for the benefit of all parties, and to avoid ongoing repetitional [sic] risk I would consider 'other options'.
It was clear from the further conversation that the University does not believe it can provide a viable working environment for me around within the current managerial structure, and the DVC(A) made it clear that a more 'radical' solution was not on the table.
So the meeting concluded with agreement from both parties that separation may well be the only viable alternative. The DVC(A) asked again if this was 'what I wanted' (or indeed what would make me 'happy'(!!!)). I said again, it was not a matter of what I wanted, it was whether I could be provided with the means to do my job (or not).
… The meeting ended with the DVC(A) saying that ''HR would be in touch”.
Professor Hughes-Warrington in her statement dated 10 August 2016 denies that the Applicant stated that he needed a 'viable job in a safe workplace' and that she answered 'what if we cannot provide that?' (Exhibit 24).
The Applicant was contacted by Ms Melissa Austin, Acting Associate Director of Human Resources, on 4 June 2015 to organise a meeting. Ms Torrens wrote to Mr Matthew Talbot by emails dated 9 and 16 June 2015 indicating her concerns with the SoM (she had previously worked there). She stated:
I am also concerned given fairly consistent feedback both from the students and particularly the staff in the School are not currently being provided adequate support.
Ms Torrens stated that the lack of administrative support in the SoM made her question her own acceptance of a seconded position.
The Applicant wrote to Professor Hughes-Warrington on 23 June 2015 indicating that two SoM administrative staff were on secondments that were arranged without his knowledge or approval and this was causing operational stress and concern. He requested further resources to assist with running the SoM.
The Applicant wrote to Dr White on 24 June 2015 accepting an offer of an ongoing Level E appointment (Exhibit 37). He was pleased to accept the offer:
on the basis of the assurances made at that meeting [22 April 2015] and subsequently confirmed in writing that I am to be provided with the resources and authority necessary to be able to successfully to execute and fulfil the concurrent responsibilities of the Head of Department, responsibilities which I have until 12 February 2017.
On 25 June 2015 Ms Nairn wrote an email to Ms Jende and Professor Hughes-Warrington (Exhibit 35). In her email she wrote:
Peter is not well and has an aggravation of anxiety. He does not think he is able to work at the School without further aggravating his condition. The environment at the school sounds unstable and not conducive to support a return to work for a person recovering from anxiety and depression with following concerns expressed by Peter:
The lines of reporting are not clear and the leadership of the School is then not clear... Peter feels he has no control over decisions that have been made. Some of those he should make or be consulted and/or informed ...He feels there is hostility from some of the staff... He does not have full access to the building with allegations that he accessed a staff member's office out of hours for inappropriate purposes... The College is not acting on requests and the requests just 'sit there' ... There is no staff on the ground to support the day to day running of the School...
… I do not see Peter himself as having the capacity at present to bring about change to create an environment and a stable School of Music that would then be supportive for his recovery.
Peter has a medical review tomorrow morning to discuss work capacity and I expect that he will be deemed unfit for work...
Professor Hughes-Warrington wrote an email to Ms Jende on 25 June 2015 (Exhibit 35) which stated:
Peter is meeting with Melissa Austin again today and I anticipate he will sign a separation agreement very shortly... Kate and Harriet have made themselves available to assist. So we do not agree that no supports have been put in place, and I would wish to indicate to the medical assessor that I now have three staff who have lodged bullying allegations, with a fourth potentially coming forth. I have had to halt his appointment of three academic staff to permanent positions without advertising and indicted that I am happy to discuss with him. He is yet to respond to my request for a meeting to discuss this and how to assess how he is doing and what supports he needs... He signed his contract with ANU yesterday which does include the clause he is fit to sign...
On 25 June 2015 Professor Hughes-Warrington wrote an email to Dr White and stated:
… There are three pending abuse/bullying claims against Peter that I am hoping to diffuse via reaching separation...
She also stated in an earlier email of the same date:
Bev Jende has reported a deterioration in Peter’s behaviour today. He is apparently claiming that the separation is under duress, which it clearly isn’t … [the discussions regarding separation] may need to be accelerated give how unstable Peter is…
On 25 June 2015 Ms Nairn wrote an email to Professor Hughes-Warrington. She thanked Professor Hughes-Warrington for the additional material and indicated she did not think it was appropriate for the Applicant to be informed by her of the bullying claims at the medical appointment (Exhibit 35). Ms Nairn suggested that the Applicant be made aware of the availability of Ms Torrens and ‘Kate’ [Bishops-Witting]. She also stated:
If, after discussion the GP deems that Peter does not have the capacity to work at the School of Music at present, would there be any alternate duties outside of the School of Music that I could present to the GP?…
You mention that you expect Peter to sign a separation agreement shortly. Do you have any concerns whether Peter is fit to make that decision and would you like me to raise this with the GP?…
Professor Hughes-Warrington replied by email on 25 June 2015, addressing the email to Ms Nairn, Ms Austin, and copying in Ms Jende and Ms Kraus (Exhibit 35). She clarified the Applicant was sent a detailed email outlining the supports available and that she had asked the Applicant for a ‘face to face’ but he had not got back to her yet. She stated:
We have ideas on alternate duties as part of a separation period. Peter has been declared medically fit via a psychiatric report…
The Applicant was certified as fit to return to his pre-injury duties from 26 June 2015 by Dr Cockburn. Consultation notes state:
Immediately before leaving for London he was presented with a proposal for severance of his employment. Has not signed this. Feels that management are doing everything they can to sabotage his job. This has implications for future employment. He is psychologically fit to return to normal duties – it is the workplace environment that is the problem, not his mental health. To continue psychological support.
Chancellor Evans wrote to VC Young and Professor Hughes-Warrington by email dated 26 June 2015 titled ‘School of Music Next Steps’. He stated:
… in this swirl of competing narratives it is impossible for me, or anyone else not involved with all the key players, to be absolutely sure of all the relevant facts - and they are the necessary foundation for any sensible judgement as to what should happen next ...
I have talked through the issues with Robin, briefing her on current developments - including the competing assessments of both of you, and Tim - and we think it important that the following points be made:
1The ANU cannot afford any repetition of the public relations debacle last time round.
2The Council - maybe not unanimously, but certainly including hardheads like Doug McTaggart - is very clear that however much we might wish we had never bequeathed them, both Music and Art need to be presented in some form at ANU.
3The incoming VC Brian Schmidt, while he has yet to get his head around the current SoM problems. was very clear at interview that Music in some form had to have a place on campus and he should be kept in the loop on any major proposed developments
4Given the impossibly fragile and resource-draining environment at the moment, the most attractive way forward does seem to be the reintegration of Music within a combined School of Art and Music lead by Denise Ferris with a music curriculum focused on musicology and other non-performance disciplines, with performance teaching being phased out over time …
5Prima facie, there is a role for Peter Tregear in such a combined structure which might be attractive to hi teaching and researching in musicology/music history, where he is obviously very well credentialed, leading the campus/community outreach program. for which role he has both a passion and manifest competence, retaining some visible role in the leadership of what would be the new Music Department within the combined school, but very much as a deputy and maybe one of a number to Denise (and recognising that administrative responsibilities are not his forte).
6This option. and any variations on it that may be appealing, should be fully and frankly discussed with him by you both as offering potentially a completely new way through the present difficulties. And that discussion should be approached in a way that presents it as possibly a completely new start for everyone. whatever the prehistory of Comcare/erratic behaviour/claims and counter-claims may be, and setting aside - to the extent that it is possible for you to do so - judgements that may or may not have been made about his inherent fitness, psychologically or otherwise, to stay on in any capacity.
7If it is absolutely clear following those discussions that severance really is the only game in town - and of course I recognise that this may well be the conclusion we all eventually reach - this MUST be achieved in a way that leaves Tregear feeling genuinely good about departing. And that is going to require totally sensitive management from the Executive.
8This whole matter is one that inexorably combines issues of deep-in-the-weeds management which is not Council's business and strategic direction/risk, which manifestly is. As you both know, I was very closely involved as Chancellor in managing this issue last time it exploded and I propose to remain deeply engaged now. My immediate problem is that I am going to be away overseas the next month and not within ready communication range. In these circumstances I have asked Robin as Pro-Chancellor to immerse herself in the issues and stay in close contact with both of you, as well as other immediately interested Council members like Tim Senden...
9It is crucial that we take as much time as is needed to resolve this whole affair peacefully and constructively, and in a way that serves the best interests of the University. And that means not rushing to appoint a new acting head etc until we are very much clearer than we are at the moment whether there is indeed another way though.
VC Young responded to Chancellor Evans' email as a direct instruction which he would follow by return email dated 26 June 2015. He stated that he had reservations and doubts about how the situation may unfold and copied his response to Dr White as Director of HR so that the response can be placed on his file. VC Young made a number of comments underneath those of Chancellor Evans' comments in the earlier email:
(a)He agreed with point one;
(b)He indicated that he was unaware of the Decision by Council outlined in point two but noted it;
(c)He noted point three;
(d)He noted point four and indicated it had merit;
(e)He stated of point five: ‘I have raised on a number of occasions my concerns about Peter Tregear's stability. My concerns remain. However, we will certainly put this proposal to Peter, with more than one person in the room. I will arrange for Marnie and I to meet with Peter early next week’;
(f)He noted point six ‘as above’;
(g)He noted point seven;
(h)He stated of point eight that he was very happy to work with Robin but noted that Tim Senden was a personal friend of the Applicant's therefore ‘conflicted’;
(i)He noted point nine.
On 26 June 2015 Chancellor Evans sent an email to VC Young (copied Ms Hughes, Professor Hughes-Warrington and Dr White) clarifying positions on which he hoped they could agree. He said that he was not suggesting that there had been a formal decision by Council that SoM was to be preserved in some form. He stated:
… You are of course right that the re-merger of SoM with Art may be seen publically as a major backward step. But the budgetary situation is dire, even if performance is phased out. and there is a dramatic shortfall in administrative resources, together with some obvious shortcomings in institutional management leadership: all of these issues would hopefully be helped by the proposed restructure. An enormous amount depends on how the musicmakinq outreach story is told - that is the key...
Professor Senden sent an email to Chancellor Evans and VC Young (copied to Ms Hughes and Professor Hughes-Warrington) on 26 June 2015. In his email he stated that he was regretful to hear of a dispute but remained committed to the primary elements of a joint discussion:
1As an academic colleague I will offer assistance to Peter in his deliberations around his future at ANU.
2Offer constructive thoughts on immediate solutions that see SoM with a proactive admin and secondarily to evaluate the universe of futures for Music at ANU.
A merger between the School of Arts and the SoM was discussed.
On 26 June 2015 Ms Hughes wrote to Professor Senden by email and stated that she believed the ‘waters were calming’. She indicated that she was meeting with Professor Hughes-Warrington and stated:
… with his [the Applicant's] permission (given willingly today) will also seek meetings with a few others who are players. I may also get burned in the effort to help though I'll be proceeding with antennae active but I think that we all have to live with that.
Ms Hughes emphasised the importance of the issue to the ANU and indicated that Professor Senden's contribution was very useful but noted that the situation was ‘an emotional one and reactions are to be expected’.
Professor Senden wrote an email in response to Ms Hughes dated 26 June 2015 stating:
It was a 'fair cop'. I knew it would come at some stage. I'm with Peter now. He's just popped out to speak with the legendary Noel. We have some progress which I'm happy to share by Skype. All good. Still on Track.
Chancellor Evans responded by email dated 26 June 2015 in which he stated:
A bit of burning all round. I'm afraid. but hopefully we'll get there without too many more scars. I'll assume robin has filled you in on my correspondence with Ian and Marnie today...
Some emails between Professor Senden and Ms Hughes were exchanged between 26 and 28 June 2015 organising a Skype conference. VC Young sent an email to Chancellor Evans dated 27 June 2015 (Exhibit 40, pp. 662-664). In his email he stated:
1I put a proposal to Peter and we have already announced to staff of the School of Music that we are putting in place a package to guarantee the future of the School. This would have the Head report to Marnie, guarantee minimum staff level irrespective of student numbers, undertake market research, advertise another professorial position and provide Peter an ongoing position at Level E. This happened some weeks ago.
2Peter firstly embraced this with enthusiasm but then broke down again and decide [sic] he wanted to separate from the University. At his request we arranged meetings with HR to discuss the arrangements for this.
3At this point I raised the issue of should we, at least consider whether we want to use this as a trigger to consider whether we continue with a School of Music. If Council wanted this I was volunteering to carry the odium and clear the deck for Brian.
4Before we could discuss this in any significant way. Peter through Tim Senden made approaches to you, we had a phone conversation on Thursday and your email of Friday followed.
Suggested way forward:
1You indicated in your emails of Friday that a sub-group of Council have determined that we want to keep Music in some form and that adverse publicity is to be avoided. I note this, which removes point 3 from consideration (ie close school).
2Initially I see three ways forward:
(a)Move forward with supporting the School as outlined in point 1 above. This has already been communicated to the School. We will need to find a new Head to replace Peter. This is the path which will achieve minimum public fallout. There will be some around Peter's departure (assuming it happens) but this can be managed.
(b)Your proposal of the merge with Art, cross-university music support etc. This will be less expensive than maintaining the above but in my opinion will carry the same adverse press as a full closure of the School …
(c)Tim Send on suggested a half-way house of keeping the School in its present form and funding this but developing a shared administration between Art and Music. This makes sense. However, this has already been suggested by Paul Pickering and resulted in a complete melt down by Peter Tregear...
My suggestion
1Maintain the School as we have already announced to the staff of the School. We will need an interim Head...
2Marnie and I will meet with Peter, try to understand what he wants and negotiate accordingly.
3I strongly advise against discussing possible alternative models with Peter. There is a very significant risk that he would take these public. He has shown a complete inability to keep any issues confidential. I can't stress this issue more strongly!!
4Discuss at Council.
Finally, you and I have very different views on the strengths of Peter Tregear. Clearly, nothing I say will change your views. I believe your views have been formed by talking with Peter and Tim Senden...
Chancellor Evans sent an email to VC Young (copied to Professor Hughes-Warrington, Ms Hughes and Dr White) dated 27 June 2015 entitled ‘School of Music: Next Steps’ (Exhibit 40). In the email Chancellor Evans indicated it was time to ‘lower the temperature on all this’ and await further advice from Ms Hughes before moving forward. VC Young sent an email on 27 June 2015 to Chancellor Evans stating ‘Gareth, sounds fine. Just caution sharing too much with Peter’. Ms Hughes sent an email dated 27 June 2015 to VC Young indicating that she will be ‘very careful what I say to Peter. As you know my only interest is to assist if I can in risk management.’
At the meeting of 29 June 2015:
(a)VC Young met with the Applicant on 29 June 2015.
(b)In his statement dated 2 December 2016 (Exhibit 39), VC Young stated that after discussion of the Applicant's concerns, the Applicant raised with him that he had been considering separating from the ANU. VC Young stated that he asked the Applicant whether he was in a position to fulfil the role. VC Young stated that the Applicant felt it would be difficult due to the 'history'. VC Young stated:
... Given that he had stated he did not wish to continue in that role I then suggested to the Applicant that we consider ways in which separation could be achieved whilst maintaining his reputation. I suggested that a role be created specifically (or the Applicant to take account of the extensive music ability of many of the students of the University who were not enrolled in the School of Music. This would include organising music activities across campus such as concerts and ensembles. I acknowledged to the Applicant that this would draw on his love of performing and would also suit his extensive outreach skills. The benefit of such a role would be that it would give the Applicant the chance to leave the University with his reputation intact whilst providing him with something of a 'bridging position'. I told the Applicant that the position could be [or a nominal period of two years during which time the University would acknowledge that the Applicant would be looking (or alternative positions both within Australia and internationally. I also stated that there may be able to be some additional financial assistance provided to the Applicant to assist in these endeavours.
The Applicant seemed quite interested in the suggestion and told me that he considered it had merit and he would give it some thought.
I concurred with the Applicant's opinion that he was unable to fulfil the requirements of the role of Head of the School of Music. I was very concerned about the Applicant's serious mental health issues. He was clearly unwell. However, had he said to me that he wished to remain as the Head of School I would have agreed to work with him to support him in that role.
(c)In the Applicant's statement dated 16 December 2016 (Exhibit 7), he stated:
I never stated I 'did not wish to continue' as the Head of the School of Music, for the simple reason that this would not have been a true statement. I loved my job, and believed I had made great headway in very trying circumstances in establishing a viable new vision for the School. But as stated repeatedly... I lacked the resourcing and managerial support to ensure the position I held was also a fundamentally viable one operating in a safe workplace. It was only when I realised ANU was not willing to provide this that I was forced to consider other options.
Moreover, as I have stated elsewhere on numerous occasions, I was acutely aware of the likely cost to my reputation and the difficulty I would have finding alternative employment at level if I had to leave this job precipitously (subsequent events have born my fears out). It was only because I realised I could not protect myself from further workplace related ill-health that I ultimately had to consider separation.
As I have stated elsewhere, the role of Director of Music that Professor Young suggested at this time as an alternative to my role as Professor and Head of School also cannot be considered to be a viable alternative. It was time limited (whereas I was now on a continuing contract) and it did not involve any substantive curriculum, research or senior academic administrative responsibilities. It thus could only have offered a weak and short-lived base for me from which to apply for employment in similar senior academic research and leadership roles outside the ANU.
Most critically, by this time there appeared to be no prospect of me regaining the necessary reasonable working relationship of trust with the senior members of the University that I would have needed in order to successfully undertake the role. This was because I could not but conclude that the ultimate responsibility for the apparent failure of ANU to provide me a viable position in a safe workplace seemed to lie in the actions or omissions of these very same people. It was my impression that Professor Young recognised the veracity of this reasoning when I explained it to him at the time.
On 29 June 2015 Ms Nairn emailed Ms Kraus, Professor Hughes-Warrington and copied in Ms Jende regarding the Applicant's medical certificate. The email stated the Applicant had:
… found the return to work challenging. He said his level of anxiety is fluctuating depending on what is happening at the workplace and giving some of the examples that I had in my email last week. He also informed the doctor of the separation that is being discussed.
I outlined the points that Marnie put into her email (except the bullying allegation. from Peter's responses I was unsure whether he had been informed of these).
We had a lengthy discussion about work capacity and Dr Cockburn saw most of the issues as not being medical issues. She said there is no doubt that Peter has work capacity and were he in a different workplace she would not expect any problems. She noted that Peter's health deteriorated when he was unfit for work. She deemed him fit for pre-injury duties and hours without medical restrictions but with ongoing psychological treatment and with a review in a month. If Peter's health deteriorates he should make an appointment earlier.
A further rehabilitation program alteration was signed by Ms Nairn and Ms Kylie Leader dated 30 June 2015 (T26, p. 128). Action identified for the Applicant's supervisor included supporting the return to work and meeting regularly with the Applicant. The Applicant did not sign this alteration.
The Applicant received treatment from Dr Ruta Przychodzka, general practitioner, on 30 June 2015. A number of tests were ordered and consultation notes state:
History: recently experiencing runs of palpitations on a daily bases, there are some long standing work related stresses.
On 30 June the Applicant attended, at her invitation, a meeting in the Chancellery at the ANU with Ms Hughes. The Applicant was hopeful that Ms Hughes might be undertaking an independent assessment of what was unfolding at the SoM but instead the meeting focused on suggestions from Ms Hughes that the Applicant should consider separating from the ANU for his own wellbeing.
VC Young wrote to Ms Austin and copied Dr White and Professor Hughes-Warrington on 1 July 2015 in advance of a meeting scheduled for that day (Exhibit 39). VC Young stated of a meeting the Applicant had with him the prior day:
The meeting went as follows:
1Peter recounted a long list of what he say [sic] as wrongs committed against him.
2He eventually talked about separation but felt this would be difficult for him and his reputation would be damaged.
3I then said OK, you have an important role as the Head of Music to perform.
4He then said that it was very difficult (impossible) for him because of the history (another long description of the wrongs).
5I then suggested we look at more creative options for him to separate.
(a)I suggested ("off the top of my head, and not as a binding suggestion"
(b)We create a role for Peter outside the SoM where he could organise music activity across campus. This would involve concerts, ensembles etc.
(c)This would draw on his strengths in outreach.
(d)The position could be for a fixed term of two years.
(e)This period would give him an opportunity to fill an important role and provide him time to search for new positions
6Peter was thoughtful about this suggestion. He thought it had merit and he would think about it…
… Can I suggest you also reinforce this message today. However, it should … very much be Peter's decision. If he does not want this then he has a role as Head of Music. I suspect he knows he cannot function in this role...
Dr White responded stating that it was very reasonable and dignified and that her only reservation was:
… bullet point 6 under musical engagement which references maintaining all existing terms and conditions - wouldn't want PT to leave the meeting assuming he had the right of reversionary Professorial appointment which exists under his current contract...
On 3 July 2015 the Applicant provided a proposal for Professor HughesWarrington to consider an extension of two staff members and also made other proposals regarding staffing. Contrary to Professor Hughes-Warrington's statement in an email dated 25 June 2015 that she needed to ‘halt appointment of three academic staff to permanent positions without advertising’, the Applicant had sought short-term extensions only to secure a reasonable degree of operational, educational and reputational stability for the immediate future. He indicates in his statement dated 29 October 2017 that he understood Professor Hughes-Warrington's blocking of this proposal to reflect her lack of support for his ongoing leadership of the SoM.
On 3 July 2015 the Applicant provided a proposal for Professor Hughes-Warrington to consider an extension of staff members Dr Andrew Cichy and Mr Johannes Luebbers and making other proposals regarding staffing. The rejection of the proposal by Professor Hughes-Warrington because the Applicant to understand that Professor Hughes-Warrington reflected her lack of support for his ongoing leadership of the SoM.
The Applicant wrote to Ms Karen Ford (HR Manager at the ANU) by email dated 7 July 2015. He stated:
Since returning to work on 25 May the environmental circumstances have in a number of respects been worse; for most of this period (including, I am concerned to report, presently) I have been trying to run the School with no School Manager or Administrator, and with a number of academic staff on multiple weeks leave. We have also, of course, now lost David Irving.
… What, constructively, can be done at this point to mitigate the risks to myself and my School staff cohort? I am concerned about the workplace health and safety implications not just for myself, but for the whole School cohort, as we head into Second Semester.
Ms Jende wrote a progress report regarding the Applicant's return to work dated 10 July 2015 (T27, p. 135). The report stated with regard to a dispute whether the Applicant would be able to attend his own office:
The advice from the psychologist was that Dr Tregear needed to retain a sense of control and that he should be provided with what he requested if it was able to be accommodated from an operational point of view…
Several events were cited that caused the Applicant additional distress in this period:
(a)Contact made with the Applicant from members of the public and staff regarding concerns with the SoM which made the Applicant anxious as he had not been provided with up to date information (Professor Pickering stated this was because he was on leave and no alternative supervisor had been identified).
(b)The Applicant was removed from all emails and thus did not receive regular updates regarding developments at the SoM.
(c)What the Applicant perceived as a change of direction of the SoM instigated by the acting head Dr Bennett.
The Applicant raised concerns with his relationship between himself and Professor Pickering - he did not consider it was functional. The report also outlined further issues regarding the return to work. With regard to separation the report stated:
Prof Tregear finds the current work situation challenging. He perceives that the underlying issues that caused him to become ill have not been addressed and that the ANU is not supportive of his leadership. Prof Tregear reported that he had lost trust in the ANU...Prof Tregear reported that he finds the meetings with his new supervisor challenging ...Prof Tregear reported that his reputation has been damaged and that he is trying to find a way to move forward without suffering more damage. He is engaged in discussion about separation.
Professor Hughes-Warrington emailed the Applicant on 9 July 2015 and raised some concerns outlined in a staff departure document. The Applicant responded and also highlighted several concerns regarding staffing, timetabling and performance indicators and requested support for the SoM. He denied the allegations made against him, stating they were ‘false and libellous’.
The Applicant wrote to Professor Hughes-Warrington on 14 July 2015. He raised issues regarding staffing, and the budget. He raised the need for support for the School.
By emails dated 20 and 21 July 2015, Ms Torrens wrote to Mr Talbot in relation to her own placement at the ANU raising issues with the lack of administrative support in the SoM.
On 20 July 2015 the Applicant, his solicitor Mr Chamberlain and VC Young met with the Applicant. VC Young describes the meeting in his statement dated 2 December 2016 as follows… During that meeting I reiterated to the Applicant that the numerous discussions he had had with the Executive members of the University had been aimed at providing support for him to return successfully to his role as Head of the School of Music. I also stated that when he felt he could not return to the role, discussion had ensued in relation to possible options for the Applicant to transition out of that role in a manner where his reputation was protected. I covered the fact that I had personally had two meetings with the Applicant on 30 June 2015 and 15 July 2015. During those meetings we had discussed three possible options being:
·The Applicant remain as Head of the School of Music
·The Applicant separate from the University
·A new position be created appointing the Applicant as Director of Musical Engagement which was essentially a two year transition role.
I should point out that a fourth option had been rejected by the Applicant in earlier discussions. That is. that the Applicant step down as Head of School but remain as a professor within the University. This occurs very commonly within the University where academic staff fill managerial roles for a limited period and then return to a full time academic position. However, the Applicant was not interested in this option.
I confirmed with the Applicant that at our previous meetings he had agreed that the Director of Musical Engagement role sounded like the best option for him.
We again ran through the details of the position of the Director of Musical Engagement as set out in paragraph 10 above. I also confirmed that the role would carry the same employment terms and conditions as his current role with the exception that it was a two year role with no reversionary professorial appointment. This was because the role was intended to assist him to leave the University. The role would be completely outside the scope of the School of Music and he would not be required to have any dealings with the School. Further, an office would be located for him outside the School of Music.
The Applicant then told me that he wished to separate from the University. I was quite shocked and surprised by this as the Applicant had previously given every indication that he was interested in the role of Director of Musical Engagement. Nevertheless, given that this was his decision, some discussion then ensued regarding the terms of his separation.
(d)VC Young's notes of this meeting are at Attachment C of his statement and do not add any additional information to the information already included in the statement.
(e)The Applicant in his statement of 16 December 2016 stated:
This 'fourth' option was never presented to me and I do not recognise it from any of the discussions we had. I note, furthermore, it is not referred to anywhere in ANU's s71 documents.
Again I do not recognise this discussion as described. The best option for me was then, and remains a return to a 'viable position' as Head of the School of Music, in a safe working environment…
Section 19(4)(b) of the Act provides:
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
…
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
Section 19(4)(f) provides:
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances…
Section 19 was considered in HYJZ and Comcare [2015] AATA 766 by Senior Member McCabe (as he then was) (at [10]-[11]):
Section 19 deals with incapacity for work, not with any impact on one’s home life. It follows the evidence about the Applicant’s increasingly dysfunctional home life does not assist in the present proceedings. But s 4(9) defines incapacity for work to include incapacity to engage in any work, or to undertake work at the same level the worker had been undertaking before the injury occurred. There is some evidence which suggests the Applicant was impaired as a consequence of his condition: that would be expected given the diagnosis. He points out … he was suffering from depression and experiencing suicidal ideation during that period. That state of mind probably did impact on his efficiency and may have reduced the quality of his work. (Evidence provided by the Applicant, which was not disputed by Comcare, suggests he previously enjoyed an excellent reputation for the quality of his work and the volume of his output.)
Comcare noted … it is not enough to establish impairment for present purposes. One must be satisfied there is actual incapacity, which is a different concept. That approach suggests it is not enough to establish the Applicant found his duties more onerous as a result of his work-related condition, nor is it enough to establish his health was deteriorating at the relevant time. He must point to evidence that he could not do that work, or any work; or alternatively, that he could not undertake that work to the same level as before his injury. The existence of incapacity in the relevant sense is a jurisdictional fact which must be established before there can be compensation under s 19.
There was nothing in the evidence to cause me to depart in any relevant manner from the facts set out above.
In summary even though I have found that the Applicant was not fit to return to the job as Head of the SoM because of his injury, several alternative options were explored with him, namely:
(a)remaining as the head of the SoM;
(b)separating from the ANU; and
(c)accepting a new position to be created of Director of Music Engagement which was essentially a two-year transition role from what it appears there would have been no continuation of expiry of the two years.
There was no formal job offer in relation to the position of Director of Music Engagement but it appears that the salary would have been the same as the position of Head of SoM.
The Applicant had formed the view that the ANU was no longer a safe workplace and informed them that he wished to separate from the ANU. Reasons given included the lack of staffing set out at para 114 to 116 and elsewhere in the fact that the Applicant considered that senior personnel from the ANU did not want him as an employee.
I also note that the Applicant considered that this new position would cause him reputational damage but find the principal reason for not further exploring this option was the fact that he considered that the ANU was no longer a safe workplace.
The Applicant then decided to negotiate a separation from the ANU on terms as favourable as possible. The relevant terms are set out at paragraph 127 above but is important to note that the Applicant warranted that he entered into the deed freely and voluntarily and that about mid-June discussion had commenced regarding a potentially mutually agreed separation.
I note that the Applicant's counsel’s closing submissions stated it was not reasonable for the Applicant to remain as the Head of the SoM because:
(a)Prof Hughes Warrington and Dr White did not want him there and were motivating separation even at the cost of misleading Comcare on the medical evidence;
(b)the Applicant was not medically capable of remaining in the position that legitimate concerns about his own deteriorating health; and
(c)the Applicant was suffering potentially irreparable reputational damage.
As noted at para 199 and 200 above, I was satisfied the Applicant was not medically capable of remaining in the position as Head SoM and so do I not need to make findings at this stage in relation to subparagraphs (a) and (c) above.
However, the unique facts of this matter make it difficult to reconcile with relevant case law especially considering the concept of reasonableness.
The situation is further complicated by the fact that there was no firm job offer made in relation to the Director of Music position; it was only discussed as a possible option and not further explored when the Applicant indicated that he wished to separate. Accordingly when considering s 19(4)(b) it is necessary to consider whether the Applicant received an offer of suitable employment.
The Applicant contends firstly there was no offer and, in any event, it was reasonable in all the circumstances for the Applicant not to accept the offer.
There was nothing in the evidence to suggest that if the Applicant had indicated that he would be prepared to accept the position of Director of Music, then the offer would not have been formally made. Hence I find that the Applicant was effectively made an offer and that the prerequisites set out at s 19 (4)(b) existed.
That then brings into play s 19(4)(f) which curiously refers to the reasonableness of Comcare's opinion in all circumstances not that of the Applicant or the Tribunal. Despite this wording the case law suggests that I independently examine whether or not Comcare's opinion was reasonable in all the circumstances.
At this stage it seemed appropriate to deal with the Applicant’s genuinely held beliefs about his future at ANU, noting that the Respondent has always maintained that there was no reasonable basis for such beliefs.
The Applicant and/or his counsel consistently suggested all the ANU deliberately sought to besmirch his character and ruin his career. Professor Hughes-Warrington and Dr White were subjected to considerable criticism despite any reasonable objective supporting evidence. It should be noted Prof Hughes-Warrington only became the Applicant’s supervisor in late April 2015 for approximately one month and Dr White was only involved in negotiations for about three months from June to August 2015.
Much was made of the Podger Report which was supportive of the Applicant's claim that the SoM had significant morale problems but that report does not appear to criticize Professor Hughes-Warrington or Dr White. However, it is quite clear that there were considerably diverse views about the way in which the University, and in particular the SoM, were being managed and the overall situation was definitely worse than the witness’s called by the respondent seemed to believe. See, for example, the extract from the Podger report at paragraph 158 above and the comments attributed to a former staff member paragraph 157 above.
The Respondent attacked the Applicant's credibility, in part, upon the basis of his unjustified criticism of Dr White and Prof Hughes-Warrington but I formed the view throughout that the Applicant was an honest witness although always trying to present his case in the best possible light. However, I have had significant difficulties and accepting several of his beliefs, honestly held, as being correct. For example, I find that there was no deliberate attempt on the part of ANU or any of its senior executives to besmirch the character of the Applicant. I note in particular the following:
(a)The employer supported the accepting of the Applicant's claim;
(b)A significant amount of funded rehabilitation and staff, including an extra support staff member, were provided by the employer. This included the provision of six-month research leave to the UK and New Zealand funded by the employer; and
(c)The Applicant’s employment conditions were changed from a fixed term to a continuing position.
It may well be that the Applicant’s accepted condition was responsible for him placing undue emphasis on seemingly barely significant events and ascribing to them motives or conclusions removed from actuality. I also note the background referred to at paragraph 233 which provides some basis for the Applicant's beliefs.
Two such ‘barely significant’ events were the security guards incident and the job advertisement. I note that Dr Cutting, when questioned by me, confirmed that the two alleged risk factors nominated by the Applicant were the involving the security guards in the job advertisement.
The issue about the security guards is set out at paragraphs 48-49 above there is no independent evidence to support the Applicant's concern about them being sent to deny him access to the SoM.
It is also difficult to reconcile the effect the Applicant now contends that such an incident had upon his mental health bearing in mind that the only doctor to whom he seems mention this issue was Dr Cutting.
I note that he did mention it to the rehabilitation consultant, Ms Nairn who noted (on only one occasion):
Prof Tregear reported a stressful embarrassing event when staff from the school of music informed him that AFP or security officers had looked for him at the school on 24 April 2015. He was extremely concerned about the messages sent to staff and students as there was no reason for security staff to be present.
The events surrounding the job advertisement are set out at paras 54-67 and 72-76.
I accept that the advertisement was a mistake but also accept that it was not unreasonable for the Applicant to react in the way in which he did.
There were delays in explaining to the Applicant how the mistake occurred and Professor Hughes-Warrington, at one stage, incorrectly asserted the mistake was an unattributed administrative error despite having received a report from Dr White setting out the circumstances behind the mistake. The fact that she did not expeditiously and accurately address this matter with the Applicant added significantly to the stress he was undergoing.
It may well be that such an incident would not have affected a person of normal fortitude in the way it affected the Applicant but at this stage he was under considerable stress. Bearing in mind that I have already found that the Applicant's condition has not completely resolved is only necessary to consider the effect of these incidents in relation to the reasonableness of the Applicant’s subsequent actions.
The Applicant beliefs discussed above raise the question as to whether the reasonableness test is to be examined in an objective or subjective manner.
The Applicant's counsel submitted that:
The reasonableness test is in part a subjective one to be assessed by reference to the whole of the circumstances of the Applicant's case including his state of mind. It is not to be assessed only by reference to the ‘normal person’ test. The Applicant submits that the normal person is a myth that every person is a product of their own genetics, social conditioning and environmental circumstances.
There was no case law referred to support this proposition.
There are several cases dealing with s 19(4)(f) set out sequentially in Peter Sutherland, John Ballard and Allan Anforth’s ‘Annotated Safety, Rehabilitation and Compensation Act 1988.’ In the following discussion, I refer to some which I consider helpful.
In Evans and Australian Postal Corporation [1995] AATA 691 an Applicant with obsessional personality traits was suffering work related anxiety to such an extent that he was moved to a local Post Office where his anxiety was very much reduced and he was able to perform satisfactorily. The Tribunal found that his acceptance of a voluntary redundancy was reasonable in the absence of any guaranteed future employment:
“It was submitted by Mr Gunst, counsel for the Respondent, that at the time of acceptance of the VER Mr Evans had the ability to earn $543.37 per week; that is, the salary for the clerical duties he was performing at Traralgon Post Office immediately prior to his acceptance of the VER. It was not in dispute that if Mr Evans were able to earn $543.37 per week in suitable employment, applying the formula in s. 21(3), he would not presently be entitled to any amount of compensation for incapacity for work. It was submitted by Mr Gunst that Mr Evans voluntarily removed himself from employment by his acceptance of the VER and that this is a factor to be considered when determining the amount that he is able to earn in suitable employment. This submission necessarily involves consideration of whether Mr Evans ‘failure to continue in employment was reasonable in all the circumstances: s. 19(4)(f) If the acceptance of the VER were reasonable, then the failure to continue to engage in employment at Traralgon Post Office would not be a factor to be taken into account in determining what he is able to earn in suitable employment for the purposes of the formula in s.21(3).
The facts in this matter reveal that Mr Evans was told in April 1991 that he was an excess officer facing two alternatives, an offer of VER or redeployment. Australia Post at the time was in the process of reducing staff numbers. In August 1990 Mr Reeves, psychologist, wrote to Ms Wallis, the Rehabilitation Co-Ordinator at Australia Post inquiring as to whether an offer of a permanent position at Traralgon Post Office had or would be made to Mr Evans, who was then employed at Traralgon as part of his rehabilitation. No offer of a permanent position at Traralgon was made and similarly, an earlier proposal to have him redeployed to Churchill Post Office never eventuated. Further, on the uncontradicted evidence of Mr Evans, which we accept, he was led to believe that he could not expect to remain in the position that he then held at Traralgon. This is not a case where the respondent has displayed a capability and willingness to provide the Applicant with suitable employment, as was the case in Re Shanahan and Australia Post (1995) 36 ALD 613. In our opinion the acceptance of the VER was reasonable as at that time Mr Evans’ employment at Traralgon was of a temporary and uncertain duration. The effect of this finding is that the respondent is not entitled to take into account, in assessing entitlement to compensation, the fact that the Applicant did not continue in employment at Traralgon.
In Dorothy Norma McHardie and Comcare [1997] AATA 264, Senior Member Burton found voluntary retirement reasonable was established in the following circumstances:
The Applicant voluntarily retired from suitable employment. The question arises whether pursuant to s 19(4)(c), the Applicant should be deemed to be earning the amount she would have earned if she had remained in that employment. Ss19(4)(c) is subject to ss19(4)(f) and (g), which require the tribunal to have regard to whether the Applicant's failure to continue to engage in her employment was reasonable in all the circumstances, and, any other matter the tribunal considers relevant.
In relation to the reasonableness of the Applicant's decision to retire under s19(4)(f), and her financial motivation to do so, the tribunal's attention has been drawn to the cases in re Shanahan and Australian Postal Corporation (unreported AAT no. 9975, 30/1/95), re West and Comcare (AAT no. 7966 19/5/92), and re Spano and Australian Telecommunications Commission (1987) 15 ALD 121. In Shanahan, the employee was redeployed after his injury to duties within his capacity to perform. He took a voluntary redundancy package, in which circumstances the tribunal found he was not entitled to compensation. In West the tribunal accepted that the Applicant's decision to retire because it was to his economic advantage, was reasonable but in circumstances where the work was menial and affected Mr West's sense of worth. In Spano the unsuccessful Applicant was offered light work at the same pay, which she continually refused to entertain and made no effort to seek employment on her own, and was denied compensation. In the present case Mrs McHardie was offered employment at a severe economic disadvantage, which necessitated her to consider the option of voluntary retirement and unlike the cases mentioned above, she was in receipt of a wage, well below her normal weekly earnings.
The Respondent submits that the Applicant could have sought other suitable work with the Department, allowing her to work longer hours. The tribunal accepts the Applicant's claim, evidenced by her work history, that any increase in her hours of work was likely to require her to perform duties which would provoke her pain, and in any event the tribunal accepts the medical evidence of Dr Reid, that she was unfit to increase her hours of work at that stage. Dr Reid said that the Applicant had talked a lot about retiring voluntarily. Every time she returned to work she had problems. He thought it was in her best interest to take the available redundancy package, in that she might be able to rest, continue treatment and return to normalcy, the redundancy package assisting her financially to take such course.
Had compensation payments continued, it is unlikely that the Applicant would have retired. That is, she did not retire on medical grounds, but retired, quite reasonably in the tribunal's opinion, on financial grounds. She did not retire simply in order to obtain a lump sum from which debts could be paid. Her reasons were more far sighted. She said, and so it transpired, that the retirement would give her the opportunity to recover and get back into the work force with suitable duties. She obtained employment with duties which she believes she might be able to do on a full-time basis in due course.
The Applicant's voluntary retirement was, in the circumstances reasonable. She retired in the knowledge that her financial problems could be overcome in the short term by that retirement, and that she would have the opportunity of improving her health to allow her to regain suitable employment in the long term.”
In Sollazzo and Comcare [2000] AATA 65 at 66-67, Senior Member Burton, Member Miller and Member Gration held that it was reasonable an Applicant to be guided by their medical practitioner:
“66. In refusing to return to her previous employment or make herself available for suitable employment once her hypertension was under control, the Applicant was acting on medical advice throughout the relevant period. However, this case is somewhat unusual in that her treating practitioner was in effect, acting as her advocate. The Applicant asserted that she was totally incapacitated for work. Dr Rosendahl did not certify her as totally incapacitated by reasons of her neck condition, but rather supported her claim by entering into argument with the respondent and the employer as to whose obligation it was to devise a satisfactory return to work program.
67. Nevertheless, Dr Rosendahl was the Applicant's treating medical practitioner, upon whose advice she relied. In our opinion, it is reasonable for a patient to be guided by his or her medical practitioner as to an injury or illness condition and fitness to work. The Applicant had genuine reasons to believe that she was not fit to return to work because of her neck pain, given the advice she received from Dr Rosendahl.
However, none of the above cases deal with the situation where an external objective consideration shows the employer's actions to be reasonable but when considering a belief honestly, but not reasonably held, by an Applicant an objective consideration could find employee’s actions to be reasonable.
In Shanahan and Australian Postal Corporation [1995] AATA 420 at 50-55, Senior Member Barnett, Member Joske and Member LLoyd held the reasonable test to be objective when deciding:
The Tribunal was referred to a number of authorities by both parties in support of their contentions. However, on the plain reading of all relevant sections, and in particular, s.19(4), the Tribunal finds that the respondent fulfilled its duty to provide an offer of suitable employment after the injury on 8 July 1988 and that, when the Applicant received and accepted an offer of suitable employment at Wangara Post Office, and then failed to “continue to” engage in that employment (by accepting the VER on 20 May 1992), then the respondent’s obligations in relation to providing rehabilitation and assistance in obtaining suitable employment, ceased, subject to s.19(4)(f) of the Act. The effect of s.19(4)(f) of the Act, is that the respondent’s obligations in relation to the Applicant will only cease if the Applicant’s failure to continue to engage in suitable employment was unreasonable in the circumstances. It is only if the Applicant’s acceptance of the VER was reasonable, that the Applicant’s failure to continue in employment would not be a factor to be taken into account in assessing the amount of compensation to be paid.
Whether the Applicant’s failure to continue to engage in suitable employment was reasonable in all the circumstances is a question that must be assessed objectively. Guidance can be found from case law on this issue. In Re O’Shea and Comcare [1993] AATA 363; (1993) 18 AAR 430 it was held that it was reasonable for the Applicant to accept involuntary retrenchment since employment opportunities within the Australian Public Service at the relevant time were very limited. However this was not the case in Australia Post as the respondent had clearly displayed a capability and willingness to provide the Applicant with suitable employment within Australia Post. In Commissioner for Safety, Rehabilitation and Compensation of Commonwealth Employees v Rawling [1993] FCA 248; (1993) 17 AAR 548 the Federal Court held, obiter dictum, that it would have been reasonable for the Applicant to refuse an offer of suitable employment since she was totally incapacitated. However, in this case, the Applicant was only partially incapacitated and therefore, this authority is also distinguishable from the present case. [original emphasis]
However, once again the question postulated at paragraph 251 did not arise.
In my view for the purpose of applying the test of reasonableness one must consider what was reasonable against the background of the Applicant’s beliefs.
Against that background, I find that in relation to the issues set out at paragraph 202 (iii) and (iv) above that it was reasonable for the Applicant not to continue in the role of Head of Music and not to accept the role of Director of Music.
In particular I rely upon the following in relation to the proposed Director of Music position:
(a)It was not a permanent position and was only offered for two years;
(b)The nature of the separation package; and
(c)The Applicant’s subjective belief that he was not wanted at ANU.
I consider it reasonable for the applicant to accept the generous separation package which would not render the failure to continue working at the ANU as the Director of Music unreasonable. See also the discussion in Evans and Australian Postal Corporation set out at para 248 above.
If the reasonableness of the Applicant’s behaviour was to be judged against the background of only what beliefs the ‘ubiquitous reasonable person’ would have had in the Applicant’s position, consistent with Evans and Australian Postal Corporation [1995] AATA 691, I would still find it reasonable for the Applicant to refuse the role of Director of Music because of the matters referred to at para (a) and (b) above.
Accordingly the Applicant will be entitled for incapacity payments in accordance with s 19(2) of the Act.
The Respondent contends that the AE component should be zero because the applicant had been paid ‘his full head of school salary for the period September 2015 until January 2017.’
I do not accept the proposition because I have already found a residual incapacity on the part of the Applicant although, taking into account my findings below, the component may be relatively small.
For the purpose of establishing the relevant AE component I make the following findings:
(a)The Applicant is capable of working a relatively high level positions in the academic or music world not requiring extensive management components noting that his accepted condition was brought about by the requirement of performing the administrative duties associated with the Head of SoM position.
(b)I do not accept Dr Cutting's assertions that the Applicant was barely capable of performing at the lower grade job he was then performing and I find that the applicant is capable of working at a higher level than the position that which he was occupying at the time of the hearing.
(c)The Applicant is capable of performing duties such as the suggested position as HoM noting that one would not normally expect such a position to pay the same salary as the Head of a department.
(d)As already noted the Applicant would have only continued at a salary level equivalent to that of the Head of SoM position until 13th of February 2017.
Furthermore, I do not accept the Applicant's submissions that s 4(9) of the Act applies because what has to be decided in this matter is the application of s 19(2) to calculate the quantum of incapacity payments.
See Heery J at [22] of Lonergan v Comcare [2005] FCA 377:
However this finding of fact is devoid of consequence because the tribunal, apparently acting on the submission of the respondent, ask yourself the wrong question. “Incapacity for work” is defined in s4(9) and the terms set out in [11] above. The different concept of “suitable employment” does not arise for consideration to the calculation of compensation is made under s19(2) or s21(3). The distinction between the two criteria was adverted to by Neaves J in Huckel v Comcare [1994] FCA 1500; (1994) ALD251 at 254.
ORDER
The Tribunal sets aside the decision under review and remits the matter to the Respondent for assessment of incapacity payments in relation to the Applicant's mental injury occurring on 16 December 2014 pursuant to s 19 of the Act, with the direction that as at 30 August 2015 the Applicant remained incapacitated for performing his substantive role as Head of the SoM.
I certify that the preceding 265 (two hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.
......................................................................
AssociateDated: 1 March 2019
Date(s) of hearing: 6-8 February 2018 Date final submissions received: 14 April 2018 Counsel for the Applicant:
Solicitors for the Applicant:
Mr Allan Anforth
Ms Katie Hrobelko, Lander & Co
Counsel for the Respondent:
Solicitors for the Respondent:
Mr Charles Clark
Mr Stuart Marris, Sparke Helmore Lawyers
- AGLC
- Tregear and Australian National University (Compensation) [2019] AATA 316
- Case
- [2019] AATA 316
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant remained incapacitated for his substantive role as Head of the School of Music (SoM) as at 26 June 2015 and beyond his separation from the ANU on 30 August 2015. Further, the court had to consider whether it was reasonable, within the meaning of s 19(4)(f) of the *Safety Rehabilitation and Compensation Act 1988* (the Act), for the applicant not to continue in the role of Head of the SoM. The court also had to ascertain whether the applicant was ever offered a proposed position of Director of Music and, if so, whether it was reasonable for him not to accept that role under s 19(4)(f) of the Act.
The Deputy President found that the applicant had not made an absolute recovery from his condition. The court reasoned that the applicant's role as Head of the SoM involved significant challenges, including chronic understaffing and lack of resourcing, which contributed to his injury. Given these ongoing issues and the applicant's partial recovery, the court concluded that it was reasonable for him not to continue in the demanding role of Head of the SoM. The court also addressed the proposed Director of Music role, finding that the evidence did not establish that such a position was definitively offered to the applicant.
The reviewable decision was set aside, and the matter was remitted for redetermination. The applicant was found to be entitled to incapacity payments in accordance with s 19(2) of the Act.
Orders
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