Vanessa Konstandopoulos and Comcare
[2014] AATA 741
•14 October 2014
[2014] AATA 741
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1810
Re
Vanessa Konstandopoulos
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Professor Ron McCallum AO, MemberDate 14 October 2014 Place Sydney The Tribunal sets aside the reviewable decision made by Comcare on 5 March 2013 and, in substitution, decides that Comcare is liable to pay compensation for Ms Konstandopoulos’s adjustment disorder with features of anxiety and depressed mood, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
.......................[SGD].................................................
Senior Member A K Britton
Professor Ron McCallum AO, MemberCATCHWORDS
COMPENSATION — Commonwealth employees — Psychological injury — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Whether the injury is a result of reasonable administrative action taken in a reasonable manner — meaning of “ suffered as a result of” —— Decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1); 5A(2); 5B(1); 5B(3); 14
CASES
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1
Re Drenth and Comcare (2011) 123 ALD 587
Re Wang and Comcare [2012] AATA 242
Wiegand and Comcare [2012] AATA 623Re Silk and Comcare [2012] AATA 638
SECONDARY MATERIALS
Comcare Jurisdictional Policy Advice (Number 12 of 2009 (issued 13 November 2009))
REASONS FOR DECISION
Senior Member A K Britton
Professor Ron McCallum AO, Member14 October 2014
Former Centrelink employee Vanessa Konstandopoulos challenges the decision made by Comcare to refuse to accept liability for her claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “adjustment disorder with features of anxiety and depressed mood”. Ms Konstandopoulos has asked the Tribunal to review the matter. For reasons we will explain, we have decided to set aside Comcare’s decision.
The parties agree that Ms Konstandopoulos was suffering an adjustment disorder (variously described) when she made her claim for compensation in June 2012. They also agree that Ms Konstandopoulos’s adjustment disorder was contributed to, to a significant degree, by her employment with Centrelink. The key issue in dispute is whether Ms Konstandopoulos’s condition was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Konstandopoulos’s] employment”. The answer to that question turns on the following issues:
Whether Ms Konstandopoulos’s adjustment disorder was suffered as “a result of” any of the following three actions (collectively, “the disputed decisions”):
(i)the decision not to appoint Ms Konstandopoulos to the position of acting team leader (the promotion decision)
(ii)the decision not to award Ms Konstandopoulos a higher “pay point” (the pay point decision)
(iii)the refusal of Ms Konstandopoulos’s request to take six weeks annual leave in December 2011 (the annual leave decision)
If so, whether that action(s) constitutes “reasonable administrative action taken in a reasonable manner”.
Request for confidentiality orders
Comcare applies for orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) prohibiting the publication in our reasons for decision, of the names of two nominated Centrelink managers. Comcare contends that the evidence given by Ms Konstandopoulos contains baseless allegations of a highly personal nature and those managers would suffer prejudice if those allegations were to be published. Ms Konstandopoulos disputes that characterisation of her evidence and opposes Comcare’s application.
We agree that a number of the allegations made about one of the managers, the subject of Comcare’s confidentiality application are personal in nature and potentially prejudicial. Identifying that manager as the subject of those allegations is likely to cause her considerable distress. For that reason, despite the presumption in favour of openness enshrined in s 35 of the AAT Act, we have decided to make directions prohibiting the publication of her name in relation to these proceedings. In these reasons we will refer to her by the pseudonym, “Manager A”.
We are not persuaded that the same considerations arise in relation to the second manager the subject of Comcare’s application. The offending allegations made about that manager were neither personal nor particularly egregious or offensive. For that reason we refuse to prohibit the publication of that manager’s name.
The Legislative Scheme
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Konstandopoulos if it results in impairment or incapacity for work (s 14 of the Act). The Act defines “injury” to mean (s 5A(1)):
a disease suffered by an employee;
…
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
“Reasonable administrative action” is taken to mean (s 5A(2)):
…
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined as: “(a) an ailment suffered by an employee; or (b) an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth” (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).
Background
Ms Konstandopoulos commenced working with Centrelink in 1988. In May 2011 she was transferred to the Marrickville office of Centrelink and appointed acting team leader under the supervision of Manager A. That appointment expired in August 2011 and Ms Konstandopoulos resumed her substantive position as a customer services officer (CSO) at Centrelink’s Leichhardt office. On Christmas Eve 2011, Ms Konstandopoulos suffered a severe panic attack at the local shopping centre. Over the ensuing weeks she attended the emergency department of her local hospital on several occasions. She was eventually diagnosed as suffering from an anxiety disorder. She has been under the care of a psychiatrist since June 2012.
Ms Konstandopoulos did not return to work after the Christmas Eve panic attack. In May 2013 her employment with the Australian Public Service was terminated on the grounds of “inability to perform duties on account of mental incapacity”.
Ms Konstandopoulos works as a team leader at Centrelink’s Marrickville office
Shortly before commencing at Marrickville in May 2011, Ms Konstandopoulos started to experience gynaecological problems, which included heavy bleeding. She was referred to a specialist and, in September 2011, underwent surgery, which apparently resolved the problem. She claims that she found the period prior to surgery distressing and confronting.
In the first of a number of statements prepared in the context of her claim for compensation, dated 13 June 2012 (Ms Konstandopoulos’s first statement), Ms Konstandopoulos stated she did not know how to deal with Manager A, who undermined her leadership and, on occasion, reminded her in front of other staff that her position as team leader was a temporary appointment. She wrote that Manager A was known to be “intimidating and domineering and had wild mood swings”.
Manager A testified that when she learnt of Ms Konstandopoulos’s mistreatment allegation in August 2012, she was “taken aback”. She claimed that while she and Ms Konstandopoulos were not friends they often talked about their respective families and had a good relationship. She denied reprimanding Ms Konstandopoulos in front of staff.
Manager A stated that when approached to take on Ms Konstandopoulos by Ms Konstandopoulos’s previous manager she was told she had “performance issues”. She claimed that nonetheless she welcomed the challenge to develop Ms Konstandopoulos’s skills as a team leader.
Ms Konstandopoulos confides with mentor about Manager A
Ms Kiyong Belani mentored Ms Konstandopoulos throughout 2011. In an email sent in August 2012, apparently prepared in answer to a request for information from Comcare, Ms Belani wrote that Ms Konstandopoulos told her she was struggling with “work-life balance” and was worried about her health and stress levels.
Ms Belani also wrote that during a mentoring session held while Ms Konstandopoulos was based at Marrickville:
…. Vanessa started with a conversation about her relationship with [Manager A]. Vanessa stated she was not happy at Marrickville and she felt staff did not see her as the Team Leader. She stated she was being treated unfairly by [Manager A] and that another officer in the site was favoured by [Manager A] and staff. Vanessa stated she felt [Manager A] was micro managing her pulling her up everything she did [sic]. Vanessa state[d] her relationship with [Manager A] wasn't getting better. I asked Vanessa if she had discussed her concerns with [Manager A]. Vanessa said no she didn't feel comfortable. I stated that I would have a talk to [Manager A] on her behalf if she wanted me to but would prefer that she have the conversation with her manager and work on the relationship. I stated that her relationship with her manager and the staff at Marrickville was important for her development. I stated this is part of her development to be able to manage up. Vanessa did not state to me that this was a formal complaint about [Manager A].
Ms Belani wrote that she spoke to Manager A about Ms Konstandopoulos’s concerns and recommended that she provide support and guidance to Ms Konstandopoulos and to “take action sooner rather than later”. Manager A testified that she had no recollection of speaking to Ms Belani about her relationship with Ms Konstandopoulos.
Ms Konstandopoulos told her application for acting team leader was unsuccessful
Shortly before her appointment as acting team leader at the Marrickville office came to an end, Ms Konstandopoulos submitted an expression of interest for a further three-month acting team leader position that became available. On 12 August 2011, she was advised by Manager A her application had been unsuccessful. Manager A and Ms Konstandopoulos gave different accounts of what occurred at that meeting.
In her first statement, Ms Konstandopoulos wrote that on 12 August 2011, on returning from her lunch break, Manager A said she wanted to speak to her about the result of her application for the temporary team leader role. Ms Konstandopoulos claimed that she told Manager A she felt unwell and had just undergone blood tests, but nonetheless Manager A insisted that they discuss the application and “verbally ripped my expression of interest to shreds”. Ms Konstandopoulos claimed that throughout the meeting she repeatedly told Manager A that she felt unwell and could not proceed. She said she left the meeting in tears and felt humiliated.
In a statement prepared for these proceedings, dated 14 February 2014, Ms Konstandopoulos provided a more detailed account of that meeting. Among other things she claimed that throughout the meeting she cried uncontrollably and Manager A refused to allow her to leave.
In her first written account of that meeting, prepared in August 2012, Manager A wrote:
At no time when I was giving Vanessa feedback did she state that she was not feeling well, it was not until after I had given her the feedback that said she was unwell and burst into tears. She said she still wasn't well and that this always happened to her, meaning that she missed out on temporary performance at the higher level. She said that she felt she had been in the organisation for a long time that she should be given priority.
In a subsequent statement, Manager A wrote that when she informed Ms Konstandopoulos that she had not been selected for the acting team leader position she burst into tears and kept saying “this always happens to me”.
In oral evidence Manager A denied, as alleged:
·standing over Ms Konstandopoulos throughout the meeting
·refusing Ms Konstandopoulos’s request to be excused from the meeting
·that Ms Konstandopoulos said she was unwell and had just had a blood test.
Manager A testified that at the start of the meeting she told Ms Konstandopoulos her application had been unsuccessful and spent the following 15 minutes giving Ms Konstandopoulos feedback about her application. On her account while Ms Konstandopoulos was “obviously upset” she did not appear to be distraught. As she recalled when told her application had been unsuccessful Ms Konstandopoulos started to cry but she did not cry throughout the meeting. She also claimed that Ms Konstandopoulos did not cry uncontrollably but rather had “tears in her eyes”.
In evidence-in-chief, Ms Konstandopoulos claimed that she had misgivings about applying for the acting team leader position because of her poor health and her reluctance to continue working with Manager A. She said the reason she applied for the position was because she had been urged to do so by Manager A. She claimed her family was financially comfortable and the $50 per fortnight pay increase that came with the promotion was of “no particular significance”.
Ms Konstandopoulos acted in team leader positions on a number of occasions prior to her 2011 appointment at the Marrickville office. In cross-examination she agreed with the proposition that it had been her goal to secure a permanent team leader position and that she understood accumulating experience in an acting capacity would probably enhance her prospects of success.
Ms Supriya Guptaa was one of Ms Konstandopoulos’s managers at the Centrelink Leichhardt office. In a statement dated 10 June 2014, prepared for these proceedings, Ms Guptaa wrote that during a conversation on 22 November 2011, Ms Konstandopoulos mentioned that she felt demotivated because of “what had happened to her”. She wrote that Ms Konstandopoulos was referring to “transferring from the Maroubra office, where she was a team leader, to Leichhardt, where she was a CSO”. A contemporaneous note of that conversation made by Ms Guptaa, does not mention what caused Ms Konstandopoulos to feel de-motivated. In cross-examination, Ms Guptaa agreed that she did not question, or speak to, Ms Konstandopoulos about the cause. Ms Konstandopoulos denied telling Ms Guptaa she felt demotivated because she had missed out on the acting team leader role. She said she might have said she felt demotivated because of her health.
Ms Gupta also stated that in the conversation on 22 November 2011, Ms Konstandopoulos told her she wanted to move to a “processing centre” — away from face-to-face customer contact.
Ms Konstandopoulos returns to the Leichhardt office
Ms Konstandopoulos returned to Centrelink’s Leichhardt office in August 2011 and resumed her substantive position as a customer service officer. In her first statement she wrote that while at that office (20 August 2011 to 22 December 2011):
(a)she became unwell in the course of dealing with a “difficult … incredibly aggressive [customer]”. A member of staff told her to lie down, took her blood pressure and assisted her to a nearby medical centre. She consulted one of the doctors at the centre (not her regular GP) and was certified unfit for work as result of “a medical condition” [16 to 18 November 2011]
(b)while working it was not uncommon for there to be one customer at her desk and another waiting on a computer screen or the phone
(c)she was shouted and sworn at by a couple of customers [apparently in December 2011]
(d)a very arrogant customer yelled that she was “just a public servant” and she immediately felt drained.
In a statement prepared in response to Comcare’s decision to refuse her claim for compensation, dated 13 February 2013, Ms Konstandopoulos stated:
(a)I was feeling overwhelmed with the volume of work (customer aggression due to long queues and long wait times 40-70 minutes)
(e)I was feeling fearful of having emotional breakdown
(f)I felt like I was in ‘fight and flight’ mode all day, which made me feel anxious and scared
(g)I felt light headedness, shaking, heart racing, fearful, panic, worry, numbness in my right hand.
(h)I felt totally overwhelmed and unsupported by my team leader especially given that a discussion had taken place regarding my health and my request to work part time. Her response was ‘fat chance’ which totally devastated me.
In response to the observation made by Comcare’s decision-maker that she neither made a formal complaint about Manager A, nor lodged a report in relation to the “alleged customer aggression incident in November 2011”, Ms Konstandopoulos stated that the reason for the former was because she felt extremely vulnerable and was not in the “right frame of mind” to go through what she apprehended would be a very stressful process. She stated that she raised the issue of Manager A’s “erratic behaviour” with Ms Belani.
In respect of her failure to lodge a customer aggression report, Ms Konstandopoulos wrote that around November 2011 customers were sometimes waiting between 40 and 70 minutes to be interviewed and sometimes directed their anger and frustration at front line staff. She wrote that in her opinion a formal report was not warranted in those circumstances as customers were not being threatening to her, but rather “venting at the wait time”. Further, she claimed that a formal report took between 15 to 20 minutes to complete.
Ms Guptaa testified that Centrelink’s performance indicators required customers to be attended to within 15 minutes. She agreed that was not always achieved and, on occasion, customers waited 20 or perhaps 40, but never 70, minutes, as claimed by Ms Konstandopoulos. In cross-examination she stated that she was unaware customers in the Leichhardt office in the latter part of 2011 were taking out their frustration with delays in service on Centrelink staff. She stated that compared with other Centrelink offices, customer aggression at the Leichhardt office occurred infrequently.
Ms Guptaa said she was unaware of any incident of customer aggression involving Ms Konstandopoulos. She said while she was overseas at the time of the alleged November 2011 incident, had a formal report been completed as required, it would have been brought to her attention on her return.
Ms Guptaa did not agree with the proposition that if a customer was rude but not shouting or physically aggressive in their dealings with a staff member, that conduct would probably go unnoticed by others working in the office. She explained that Centrelink used a system which allowed staff to alert their supervisor if a customer was being rude. She stated that in the last months of 2011, she was unaware of any report of customer rudeness. She said that staff were obliged to record any such incident on the relevant customer’s file. She conceded that she had not made any enquiries about whether any notes were placed on a customer files in the latter part of 2011.
Request to leave work early
Throughout the period she worked at the Leichhardt office, Ms Konstandopoulos was scheduled to work from 8.45 am to 5.10 pm. On her account in November 2011 she told Ms Guptaa that she was feeling burnt out and wanted to leave work early on occasion. She said Ms Guptaa undertook to try to accommodate her request but this did not eventuate because of staff shortages. In cross-examination Ms Konstandopoulos said the reason she made the request was she just wanted to “feel like a human being again”: to leave work “with the sun instead of darkness”. She said she sometimes left work after her usual finishing time; 5.30 pm, 5.45 pm and on occasion 6.30 pm and 6.50 pm.
Ms Konstandopoulos’s attendance records indicate that while at the Leichhardt office she occasionally finished work after 5.30 pm. According to those records her latest finishing time was 6.10 pm. Between the beginning of October and Ms Konstandopoulos’s final day of work, her timesheet records show she finished work:
·before or at her scheduled finish time of 5.10pm on 10 occasions
·between 5.10pm and 5.30pm on 23 occasions
·after 5.30pm on 17 occasions.
Request for salary increase
In her first statement Ms Konstandopoulos wrote that she asked Manager A (apparently in mid-2011) whether she would receive a pay rise while working as team leader and was told, “no, you will need to work that out with the Maroubra manager”.
In evidence-in-chief, Ms Konstandopoulos claimed that she first raised the salary increase in 2009 but her request “fell on deaf ears”. She claimed that a year later she raised the issue with “HR” and was told the next “pay point” was only payable if she acted as a team leader for more than 16 weeks.
Ms Konstandopoulos agreed that she raised the salary issue with Manager A in 2011, but claimed at the time she had “other things going on” and the issue was no longer of any great concern.
Annual leave request
On her return to the Leichhardt office in August 2011, Ms Konstandopoulos was invited by her then manager, Ms Toni Adams, to apply to take leave over the January/December period. According to Ms Konstandopoulos she requested six weeks because she was feeling burnt out. Ms Adams advised this was not possible because of “business requirements”. Ms Konstandopoulos claims she accepted that decision and “moved on” and there were no further discussions about the issue.
According to Ms Konstandopoulos in December 2011 she was approached by Ms Guptaa and asked whether she would be prepared to “swap” her period of approved leave with another member of staff. Ms Konstandopoulos stated that she told Ms Guptaa that while usually she would be prepared to flexible she was “counting down the days” to her holidays. Ms Guptaa has no recollection of that conversation.
In her statement prepared for these proceedings, Ms Guptaa stated that at some point she was approached by Ms Konstandopoulos and asked to take leave but could not accommodate that request because a number of staff were on leave at the time. On her account she informed Ms Konstandopoulos she could leave work early on occasion if the office was not busy and Ms Konstandopoulos appeared to accept the situation.
Claim for compensation
In a claim for compensation lodged with Comcare on 5 June 2012, Ms Konstandopoulos identified the illness for which she was claiming compensation as “nervous breakdown, due to work pressure and customer aggression” and the date she first noticed she was ill, 23 December 2011.
She also wrote:
What were you doing at the time you were injured or contracted your illness?
Interviewing a customer
What action, exposure or event happened to cause your injury or illness?
Customer aggression and management antagonism towards me.
Medical opinion on causation
The weight of medical opinion is that Ms Konstandopoulos has been suffering an anxiety disorder with anxiety and depressed mood since late 2011. The consensus of medical opinion is that towards the end of 2011, Ms Konstandopoulos’s symptoms became clinically significant and eventually became so severe that they impaired her ability to work. Her treating psychiatrist is of the opinion that the symptoms became clinically significant around October 2011. Other practitioners put the date slightly earlier.
The history given by Ms Konstandopoulos to the many practitioners who assessed her since she stopped work in late 2011 is relevant to the issue of causation. For that reason we set out those histories in some detail below.
Dr Hong
In March 2012, at the request of the Department of Social Services, psychiatrist Dr Michael Hong assessed Ms Konstandopoulos and provided an opinion about her fitness for work.
In a report dated 12 March 2012, Dr Hong wrote that Ms Konstandopoulos was suffering a “panic disorder with agoraphobia”. In his opinion there was an element of “burn out” in her presentation. He recorded that Ms Konstandopoulos had suffered depression in 2008 but recovered following a course of anti–depressant medication, consulting a psychologist and a three month break from work.
In respect of her 2011 condition, Dr Hong wrote that Ms Konstandopoulos first developed psychiatric problems around October 2011 and initially felt “panicky, shaky and dizzy” but recovered after a couple of days off work. He also recorded that in November 2011 after being yelled at by a customer, Ms Konstandopoulos felt “flustered, anxious and was so shaken she had to go to home”. He wrote that her condition progressively worsened, and, by December 2011, she was having panic attacks in shops and crowded places.
He wrote that Ms Konstandopoulos:
(a)reported that she normally enjoys her work but it “can sometimes be stressful as the customers complain and sometimes become verbally aggressive”
(b)described being exhausted by her experiences at work
(c)reported that a new manager (since October 2011) insisted that she attend to last-minute tasks which meant she was often late home and felt stressed
(d)felt particularly disappointed “by the people in charge, who had the power but did not stop her becoming sick” (“I felt the manager was not listening to me”).
Dr Hong’s report contains no mention of the disputed decisions.
Psychologist Mr Ilan Cohen
In February 2012 Ms Konstandopoulos returned to see clinical psychologist Mr Ilan Cohen who she consulted in 2008. She saw him on three occasions in 2012.
In a report prepared at the request of Comcare dated 29 July 2012, Mr Cohen wrote that, when he saw Ms Konstandopoulos in 2012, in his opinion she was suffering from major depression and secondary anxiety. He wrote that when asked what caused those “emotional difficulties” she replied “customer aggression … verbal harassment”.
In Mr Cohen’s opinion Ms Konstandopoulos appeared to be struggling with issues similar to those she faced in 2008. In answer to a question from Comcare “what are the specific factors that have caused or contributed to Ms Konstandopoulos’s condition”, he wrote:
Employment Factors (number reflects weighting with 1 strongest contributor and 10 least contributor)
Weighting 1: aggression by customers at Centrelink
Weighting 1[sic]: conflict with management and supervisor included alleged bullying by management twice, in 2008 and 2011
Mr Cohen’s records of his consultations with Ms Konstandopoulos on 2, 7 February and 3 May 2011 were produced in these proceedings. They record Ms Konstandopoulos reporting “work stress” and “customer aggression … verbal harassment” and make no mention of the disputed decisions.
Dr Keshava
Ms Konstandopoulos has seen psychiatrist, Dr Keshava, on about 25 occasions since being referred for treatment in June 2012. She remains in his care.
In a report addressed to her GP dated 5 July 2012, Dr Keshava set out the history of Ms Konstandopoulos’s condition. It broadly reflects that recorded by Dr Hong.
Dr Keshava wrote that Ms Konstandopoulos claimed that her symptoms [being anxious, shaky and having panic attacks] started due to “constant harassment and bullying by the new manager at work”. He wrote that “the current problems” started around October 2011 while dealing with an aggressive client. He also wrote that Ms Konstandopoulos told him:
(a)her manager insisted that she do extra work and stay after hours
(b)she often had to leave work late, felt tired and exhausted
(c)she became progressively anxious, depressed and panicky, had problems sleeping and dreaded going to work.
In a report prepared at the request of Ms Konstandopoulos’s solicitors dated 29 August 2013, Dr Keshava wrote:
Would you attribute the condition diagnosed to your patient’s employment with the Commonwealth?
Yes.
What would you specifically describe as the mechanism of injury?
Constant psychological injury with harassment at work by her superior officer.
In examination-in-chief, Dr Keshava said Ms Konstandopoulos has never spoken to him about any of the disputed decisions. When asked about the matters she reported as being important, he said:
It is mainly the way that she was being treated by her superior which caused a lot of problem[s] for her at work and then she's being transferred from one place to another so many times and also she had some confrontation with a very violent customer or something at the office. That was the main thing that she had mentioned to me during my sessions. (Transcript of proceedings, Re Konstandopoulos and Comcare (AAT, Senior Member A K Britton and Professor Ron McCallum, 6 August 2014) p 127, LL 39 -42)
Dr Synott
In July 2012, at the request of the Department, psychiatrist Dr Inglis Synott assessed Ms Konstandopoulos and provided an opinion about her capacity to undertake a rehabilitation program.
In a report dated 2 August 2012, under the heading “history – presenting symptoms”, Dr Synott wrote that Ms Konstandopoulos first developed significant psychological symptoms in March/April 2008, which she attributed to difficulties with customers and pressure from management. In relation to the alleged customer aggression, he recorded that Ms Konstandopoulos said that the aggression was not always directed at her but she was the first point of contact and customers were often irate, irritable and verbally abusive. In relation to “management pressure” she said she was required to see 20 customers a day and, in addition, conduct “quality checks” on the work performed by her colleagues.
In Dr Synott’s opinion Ms Konstandopoulos experienced an increase in psychological symptoms in October 2011, in the context of ongoing work stressors.
Rehabilitation consultant, Mr Ross Stanbury
Ms Konstandopoulos was referred to rehabilitation consultant, Mr Ross Stanbury, in July 2012. In a report dated 3 August 2012, he wrote:
Injury history
Ms Konstandopoulos advised that she [began] to become aware of experiencing anxiety and depression in 2008 (the date was not given) and was seeing Mr IIan Cohen (Psychologist) for treatment as she was feeling under a lot of pressure with her position at Centrelink. Ms Konstandopoulos reported that she was required to do interpreting, 100% quality checks on the work of 3 temporary staff, and was seeing up to 80 customers a day at reception point.
Ms Konstandopoulos reported that in October 2011 she could sense that she was feeling burnt out. Ms Konstandopoulos reported that there was an incident where she was not coping mentally at work around this time and had to receive treatment as a result. Ms Konstandopoulos advised that she was told by one of the psychologists in her workplace that she should work part time due to what appeared to be an inability to cope at work. Ms Konstandopoulos advised that this lead her to ask her manager if any part-time work was available however nothing was able to be provided.
Ms Konstandopoulos stated that her role as a Customer Service Advisor often required her to work a lot of overtime along with having to cope with staff shortages. Ms Konstandopoulos reported requesting an 8 week break from Christmas 2011 onwards as she had acquired a substantial amount of leave and felt that this was an appropriate time to take it given that she had not been coping with her job. Ms Konstandopoulos stated that when requesting this leave, she was only granted 3 weeks and when it was time to take her leave had it put on hold for another week.
Ms Konstandopoulos advised that once she eventually took leave she began to notice signs that she was not coping as there was an incident where she was in a shopping centre where she froze up. From this point onwards she began to notice panic symptoms and has not been out in public spaces on her own since December 2011.
Drs Bertucen and Reutens
Ms Konstandopoulos was assessed by psychiatrists, Dr Sharon Reutens (in October 2012 and August 2013) and Dr Jeff Bertucen (in October 2013). Each prepared written reports and gave oral evidence concurrently. We detail below the history each recorded.
Dr Reutens
In her first report dated 22 October 2012, Dr Reutens wrote:
Ms Konstandopoulos stated that in 2008 she had interpersonal difficulties with the manager whom she considered to be bullying her, as well as pressure from customers whom she said were aggressive.
Ms Konstandopoulos said that she had previously been able to cope with aggressive customers, and considered it was the combination of the management style plus the aggressive customers which had led to her developing symptoms of anxiety and depression. She was referred to a psychologist and was prescribed the antidepressant medication Sertraline. She accessed long service leave and travelled to Greece for approximately three months which she felt was particularly helpful, and by the time she had returned to Australia her psychological symptoms had abated. She said that in 2010 she was no longer taking antidepressant medication and felt well. In approximately September 2011 she transferred to the Leichhardt office as an acting team leader.
She realised that she felt "burned out" and was aware that she still had eight weeks of leave which she had not accessed. Ms Konstandopoulos said that she asked for permission to take six weeks' leave and stated that she had informed her team leader that she was feeling burned out, however, she was unable to access her full requested leave but was given three weeks' holiday leave instead. In about November or December the workload for the staff increased significantly. Ms Konstandopoulos said this was not unusual around the Christmas period, however, customers had to wait for longer than usual and she said that nearly all of them were verbally aggressive and irritated.
…
Ms Konstandopoulos considered that the increased frequency of aggressive customers, the heavy workload and the management style of her superiors contributed to the development of these symptoms.
In a subsequent report dated 3 September 2013, prepared following a further assessment of Ms Konstandopoulos, Dr Reutens wrote:
I would consider that the following factors arose that significantly contributed to the condition:
(i) There is history of pre-existing symptoms of depression in 2008. This … indicates an increased risk of future episodes of depression and anxiety. I note that she stated that the previous episode in 2008 occurred in the context of her sense that she had been bullied by her manager. This is likely to be an ongoing vulnerability for Ms Konstandopoulos.
(ii) Ms Konstandopoulos was disappointed that on several occasions that her requests had been unheeded. This occurred in relation to her request to be placed at Marrickville, her applications for higher duties and for leave in about August 2011. Overall Ms Konstandopoulos felt that she had given a great deal to her employer; she had worked hard and had done what was asked of her. She considered that there had been little reciprocity in their consideration of her needs and career progression.
(iii) Ms Konstandopoulos reported being distressed by the customer aggression that had preceded the Christmas holiday period.
Dr Bertucen
In a report dated 14 October 2013, Dr Bertucen recorded that Ms Konstandopoulos experienced problems with a manager in 2008, whom Ms Konstandopoulos believed overburdened her with work. He wrote:
In 2008, Ms Konstandopoulos claimed that she had issues with the manager at the time (identified as [xxx] with whom she was previously friendly. Ms Konstandopoulos was a Quality Assessor of less experienced staff and felt that [xxx] overburdened her with work and made her feel over managed and excessively scrutinised. At the time, she began to develop psychological symptoms including tearfulness at work, sleep disturbance and impaired attention/concentration. She was seen by Ilan Cohen (clinical psychologist) and commenced on the antidepressant medication Sertraline. In late 2008, Ms Konstandopoulos took a planned three months holiday overseas after which she returned recharged and significantly relieved that [xxx] had been moved on. As a result, the previous symptoms resolved and she was able to cease Zoloft in early 2009. Later that year, she successfully applied for a team leader role and worked for five months at the Leichhardt branch. She also filled in at Darlinghurst as an acting APS 6 for three months. In 2010, she transferred between Rockdale, Leichhardt and Maroubra performing three month contracts.
In mid-2011, Ms Konstandopoulos transferred back to Marrickville. She alleged that at this time she experienced maltreatment from her manager, identified as [Manager A]. Ms Konstandopoulos alleged that she was initially instructed "not to bring up anything about John" (a former employee who was let go from work as "he was mistreated at work too"). Ms Konstandopoulos was also functioning as a team leader in Marrickville at this time. She claimed that [Manager A] often "stood over" her and interfered with her role as team leader, often "arguing with me or criticising me in front of staff[”] and claimed that [Manager A] often spoke to her rudely, yelled at her in front of colleagues even if going on a bathroom break or ignored her at other times. She felt pressured by [Manager A] to put in an expression of interest to remain at Marrickville, despite her reservations to do so. In September, she learned that her expression of interest was unsuccessful and was informed by [Manager A] in no uncertain terms that she was "not going to get the job". She claimed that far from experiencing a sense of relief that she again felt harassed and experienced distress and tearfulness. She was told my[sic] [Manager A] to "to fill in my own performance appraisal" and alleged that [Manager A] "always fobbed off her work onto me". As a result, she was transferred back to Leichhardt, however as a customer service agent (APS 4, not a team leader).
He wrote that in his opinion Ms Konstandopoulos’s condition had been substantially contributed to by employment-related factors, as by her account, she had experienced a degree of bullying, harassment and inconsistent/conflicted direction over several periods within Centrelink, particularly 2008 to 2009 and 2011 to 2012.
Drs Reutens and Bertucen: opinion on causation
In oral evidence Drs Bertucen and Reutens attributed Ms Konstandopoulos’s condition to three main factors:
(a)a history of pre-existing depression, which had left her with a vulnerability to developing a psychiatric disorder
(b)the perceived bullying, harassment and unfair treatment she was subjected to while employed by Centrelink at various periods including the period worked under Manager A
(c)workload pressures and dealing with irate and difficult customers, in particular in the period after returning to a role of CSO in Leichhardt in August 2011.
In oral evidence Dr Bertucen said neither the annual leave nor salary increase decisions were contributory to Ms Konstandopoulos’s condition. Dr Reutens was of the opinion the salary increase decisions probably played a material role.
Each was of the opinion that the history of conflict within the workplace and the alleged abuse were the significant contributing factors to the development of Ms Konstandopoulos’s condition. In their opinion the failure to obtain the acting team leader position was material but not a significant factor in the cause of Ms Konstandopoulos’s condition.
Each stated that the history they were given indicated that Ms Konstandopoulos felt under some pressure to apply for, but had no particular interest in, the acting team leader position, mainly because she did not wish to remain working under the supervision of Manager A. Each concluded that Ms Konstandopoulos saw the promotion decision as yet another example of mistreatment by her employer but of no particular significance.
Meaning of the expression “suffered as a result of” in the proviso to the definition of injury
The definition of injury in the Act is subject to the exception that “it does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment”. Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] – [26] is authority for the proposition that however many separate and unrelated causes of an injury, if one falls within the proviso to the definition of injury, the employee is disentitled to compensation.
The parties agree that the words suffered as a result of in the proviso to the definition of injury contained in s 5A of the Act, require that the purported reasonable administrative action must be a significant cause of, or contribute to a significant degree to, the claimed ailment. That approach is consistent with the interpretation of that provision contained in Comcare’s Jurisdictional Policy Advice (Number 12 of 2009, issued 13 November 2009).
In these proceedings we raised with the parties our reservations with that interpretation, and pointed to the “operative cause” terminology used by Full Courts of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 at [55], and Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]). In Reeve, Gray J said at [29]:
[I]t is difficult to find in the words “suffered as a result of” some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity.
Commenting on the task required by s 5A(1) of assessing whether a disease was “suffered as a result of” reasonable administrative action, Rares and Tracey JJ said at [65]:
[This] involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.
At our request after the close of the hearing, counsel for Comcare, Ms Henderson, confirmed that in Comcare’s opinion, the Jurisdictional Policy Advice remained a correct statement of the law.
There is a range of opinion within the Tribunal about the meaning of the expression “suffered as a result of” in the context of s 5A(1) of the Act. (See for example, Re Drenth and Comcare (2011) 123 ALD 587; Re Wang and Comcare [2012] AATA 242, which adopted a “significant contribution” test; cf. Wiegand and Comcare [2012] AATA 623; Re Silk and Comcare [2012] AATA 638, which adopted an “operative cause” test.) In the absence of a contradictor and considered submissions we have decided not to determine which of these approaches is correct. In any event, given our ultimate finding that the same result would be reached whichever approach is adopted, it is unnecessary to do so.
Was Ms Konstandopoulos’s condition suffered as a result of any of the disputed decisions?
Ms Konstandopoulos asserts that her condition was not a result of any of the disputed decisions and contends that that proposition is consistent with the weight of medical opinion.
Comcare disagrees. Ms Henderson, for Comcare, argues that Ms Konstandopoulos’s claim that she regarded the disputed decisions as relatively trivial and not contributory to her illness, cannot be accepted. Ms Henderson argues that Ms Konstandopoulos is an unreliable witness and has consistently attempted to downplay the role of the disputed decisions and to exaggerate the role played by other factors to the development of her condition. Ms Henderson contends that Ms Konstandopoulos’s claim that she consistently worked late while at the Leichhardt office in 2011 — a claim at odds with the objective evidence — is a stark but telling example that either because of poor memory or deliberate misrepresentation, Ms Konstandopoulos’s account of events is unreliable.
While conceding that there is no medical opinion to support the proposition that the disputed decisions contributed to Ms Konstandopoulos’s condition to a significant degree, Ms Henderson contends that that opinion must be assessed in light of what she asserts to be an inaccurate history given by Ms Konstandopoulos.
As Comcare points out, there are a number of inconsistencies in the claims made by Ms Konstandopoulos to both the Tribunal and the experts who assessed her. For that reason we have taken a cautious approach to the assessment of her evidence. In undertaking that assessment, among other things, we have taken into account: the internal consistency of Ms Konstandopoulos’s evidence; the consistency of that evidence with contemporaneous documents and known or probable facts; and, the inherent probability or improbability of that evidence. Likewise we adopt that approach to the assessment of the evidence given by Manager A and Ms Guptaa.
Comcare submits that Ms Konstandopoulos’s failure to report that she was experiencing symptoms of anxiety to her GP, with whom she apparently had a good relationship, until after the panic attack on Christmas Eve, raises doubts about the reliability of her claim that she was under significant pressure at work in 2011. Comcare submits that the claim that she was unfairly treated by, and found the experience of working under Manager A’s supervision, stressful is a recent invention designed to bolster her claim for compensation.
Ms Konstandopoulos’s claim of being unhappy at the Marrickville office and having problems with Manager A, is consistent with Ms Belani’s account of the mentor session conducted while Ms Konstandopoulos was based at Marrickville. While the only available evidence of Ms Belani’s recollection of that meeting — the email to Comcare on 22 August 2012 — does not identify when that session took place, we think it likely that it occurred before Ms Konstandopoulos was advised of the promotion decision. It will be recalled that Ms Konstandopoulos moved to the Leichhardt office the week after she was advised of the promotion decision. It seems improbable that Ms Belani would have urged Ms Konstandopoulos to speak to Manager A about her concerns, or taken the trouble to raise those concerns with Manager A herself, if Ms Konstandopoulos was departing the office the following week. In addition we note that Ms Belani made no mention of the promotion decision in her email to Comcare.
Ms Henderson submits there is no reasonable basis for Ms Konstandopoulos’s stated belief that she had been unfairly treated by Manager A. She argues the evidence reveals Manager A to be a kind and caring manager genuinely committed to assisting Ms Konstandopoulos develop the necessary skills required by a team leader. Given the divergent and largely unsupported accounts about the nature of the relationship and interaction between Ms Konstandopoulos and Manager A, we are unable to reach a concluded view as to whether all of the events about which Ms Konstandopoulos now complains involving Manager A, did occur. Nonetheless there can be no argument that Ms Konstandopoulos worked under the close supervision of Manager A for about four months and perceived she was treated unfairly throughout that period. Whether there was a reasonable basis for that perception is irrelevant. In Wiegand v Comcare (2002) 72 ALD 795, von Doussa J commented (at 797, [31]) that an employee’s flawed perception of events or state of affairs will give rise to an entitlement to compensation under s 14 of the Act providing that the alleged event or state of affairs actually occurred (at 797, [31]):
… there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
With respect to the period Ms Konstandopoulos was working at the Leichhardt office in 2011, her claim of working excessive hours and frequently staying back is contradicted by pay records and cannot be accepted. Ms Konstandopoulos has either conflated her recollection of that period with that of another period or deliberately misrepresented the position. While the excessive hours claim cannot be accepted, there is nonetheless some contemporaneous evidence that supports Ms Konstandopoulos’s account that in 2011 she found work and interaction with customers at the Leichhardt office was difficult and stressful. This includes:
(a)Ms Konstandopoulos’s request for six weeks leave on account of feeling “burnt out”
(b)Ms Konstandopoulos’s request to Ms Guptaa, to be allowed to leave work early from time to time
(c)Ms Konstandopoulos’s request to Ms Guptaa to be moved to a “processing centre” that did not involve dealing directly with customers.
Comcare contends that in the absence of any report of customer aggression, which as Ms Guptaa explained Centrelink employees were required to make, the Tribunal should not accept Ms Konstandopoulos’s claim of experiencing a panic attack after dealing with an aggressive customer in the Leichhardt office in November 2011. While there is no record to support Ms Konstandopoulos’s claim of being subjected to customer aggression, there is some contemporaneous evidence that on or about 16 November 2011, Ms Konstandopoulos became unwell, was taken by colleagues to a nearby medical centre and certified unfit for work for three days. (See medical certificate at T45, p 248 of the Section 37 Documents and Ms Guptaa’s report of 20 August 2012). While that evidence does not corroborate her claim that the trigger for becoming unwell was an incident with an “aggressive” customer, it is nonetheless consistent with that claim. Coupled with the consistent history given to medical practitioners about that incident, we find it more probable than not that on or about 16 November 2011, Ms Konstandopoulos became unwell after dealing with a customer she perceived to be difficult.
The evidence reveals that 2011 was not the only period Ms Konstandopoulos reported feeling stressed at work. The clinical notes made by her treating psychologist reveal that throughout 2008 she reported feeling stressed at work and being in conflict with her supervisor. As he commented, in 2011 she appeared to be struggling with the same type of issues she confronted in 2008. Similarly Ms Belani’s email, sent on 22 August 2012, indicates that while Ms Konstandopoulos was at the Marrickville and Maroubra offices (where Ms Konstandopoulos worked in the early part of 2011) she reported being under stress and “struggling with work-life balance”.
The weight of expert opinion is that on account of her history of depression, Ms Konstandopoulos was predisposed, or vulnerable, to developing a psychiatric disorder. We agree with Drs Bertucen and Reutens that that vulnerability, together with Ms Konstandopoulos’s perception that she was subjected to unfair treatment and workload pressures, were significant contributing factors to Ms Konstandopoulos’s adjustment disorder. We also think it likely that the gynaecological problems she suffered throughout most of 2011 contributed to Ms Konstandopoulos’s feelings of anxiety.
While it is uncontroversial that Ms Konstandopoulos’s employment contributed to a significant degree to her adjustment disorder, the more difficult question is the extent, if any, the disputed decisions contributed to the development of that condition. Identifying the particular factor or factors that causes a person to suffer an adjustment disorder is self-evidently a difficult task, especially where the person has been subjected to multiple stressors over an extended period. The task does not lend itself to empirical measurement or testing. A further difficulty arises where, as in this case, there is little independent evidence and the Tribunal and medical experts are largely reliant on the sufferer’s recollection of events of high emotive content, which occurred some time ago. Added to these difficulties, as acknowledged by Drs Bertucen and Reutens, is that the sufferer is not necessarily well placed to identify the stressors that caused them to become unwell.
We agree with Drs Reutens and Bertucen that it is unlikely that either the pay point or annual leave decisions contributed to any significant degree to Ms Konstandopoulos’s adjustment disorder. While Ms Konstandopoulos has consistently reported her displeasure with both decisions, the flavour of her accounts given since early 2012 is not suggestive that either decision rated highly in her list of grievances against her former employer, or had any particular impact on her.
The parties agree that the promotion decision contributed to Ms Konstandopoulos’s adjustment disorder, but disagree about the extent: Ms Konstandopoulos contends it made a material contribution; Comcare contends that it made a significant contribution.
Central to the opinion held by Drs Bertucen and Reutens that the promotion decision was a material but not a significant contributing factor to Ms Konstandopoulos’s illness, was their acceptance of her claim that she was ambivalent about obtaining the temporary team leader role under the supervision of Manager A and only applied for the position because she was encouraged, and possibly felt obliged, to do so.
Ms Konstandopoulos first became aware of the significance of the promotion decision, vis-a-vis her claim for compensation, when notified by Comcare of the decision to refuse that claim on 12 September 2012. Of the five practitioners whom Ms Konstandopoulos consulted prior to that date, none referred to that decision in the histories they recorded. Somewhat perplexingly, Ms Konstandopoulos volunteered information about her reaction to that decision in the statement prepared in June 2012 in support of her claim for compensation. That statement indicates that while the promotion decision was but one of a number of concerns, Ms Konstandopoulos felt aggrieved by the decision itself and the manner it was communicated.
We agree with Ms Henderson that a cautious approach must be taken to the history Ms Konstandopoulos gave to Drs Bertucen and Reutens because at the time she was on notice that the contribution of the promotion decision to her condition was the reason her claim for compensation was refused. Ms Konstandopoulos admitted in these proceedings she was eager to obtain a permanent team leader position and believed accumulating experience in an acting capacity strengthened her prospects of success. While it is possible, as Comcare contends, that Ms Konstandopoulos has consciously or otherwise understated the impact of that decision on her, it seems unlikely that had it been a source of any real or lasting disappointment she would have failed to mention it to any of the practitioners who assessed her prior to her claim for compensation being refused. Further, it seems improbable that, had the decision played any significant role in the development of her condition or been regarded by her as a major disappointment, she would not have mentioned it to either Dr Keshava or Mr Cohen. It will be recalled that Ms Konstandopoulos stopped seeing Mr Cohen prior to learning her claim for compensation had been refused. According to Dr Keshava, his understanding of Ms Konstandopoulos’s history was largely based on the history given during the first consultation with Ms Konstandopoulos in June 2012 which was before her claim for compensation had been refused.
It is possible that the promotion decision was a significant contributing factor and/or an operative cause of Ms Konstandopoulos’s condition. However, the necessary causal connection between the decision and Ms Konstandopoulos’s condition must be established on the basis of probabilities, not possibilities or conjecture. We could not be satisfied on the balance of probabilities that any of the disputed decisions were a significant contributing factor, or an operative cause, of Ms Konstandopoulos’s condition.
We are not satisfied on the balance of probabilities that Ms Konstandopoulos’s adjustment disorder was suffered as a result of any of the disputed decisions and for that reason, we set aside the decision to refuse her claim for compensation.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Professor McCallum AO, Member ......................[SGD]..................................................
Associate
Dated 14 October 2014
Date(s) of hearing 4, 5 and 6 August 2014 Date final submissions received 11 August 2014 Counsel for the Applicant Leo Grey Solicitors for the Applicant Carroll & O'Dea Lawyers Counsel for the Respondent Rhonda Henderson Solicitors for the Respondent Sparke Helmore
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