VCBV and Australian Postal Corporation (Compensation) - [2024] AATA 1023

VCBV and Australian Postal Corporation (Compensation) [2024] AATA 1023 (9 May 2024)
ReviewNumber:       2020/6518; 2020/6519
Division:GENERAL DIVISION
File Numbers:         2020/6518; 2020/6519
Re:VCBV
APPLICANT

AndAustralian viewPostal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 May 2024
Place:Perth

1.The Reviewable Decision in application 2020/6518 is affirmed.
2.The Reviewable Decision in application 2020/6519 is affirmed.

........................[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
WORKERS’ COMPENSATION – Whether liability should be accepted under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) for a claim of “mental stress” – whether the Applicant suffered from an “ailment”? – disease – whether the ailment was contributed to, to a significant degree by the Applicant’s employment with Australia Post – whether the Applicant was entitled to incapacity payments under s 19 of the Act for right knee pain for periods including 30 July 2020 to 5 August 2020 – no jurisdiction to broaden period of incapacity payments – whether any incapacity was due to a non-compensable psychological ailment – reasonable administrative action – competing expert evidence – Reviewable Decisions affirmed
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 4(1), 5A(1), 5A(1)(a), 5A(1)(b), 5A(2), 5B(1), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c), 5B(2)(d), 5B(2)(e), 5B(3), 7(7),14, 14(1), 16(1), 19, 19(1), 54(1), 54(2), 60, 62
CASES
Browne v Dunn (1893) 6 R. 67, H.L
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Vo and Comcare [2005] AATA 773
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 May 2024
OVERVIEW

The Applicant is a 63-year-old man who commenced employment with the Respondent (Australia Post) as a Postal Transport Officer on approximately 13 April 2018. The actual work he undertook was as a Dock Marshal.
He made two claims for workers’ compensation arising from his work at Australia Post.
The relevant statutory scheme that applies to the Applicant’s claims is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The mental stress workers’ compensation claim
In a claim form dated 8 June 2020 (R1/24), the Applicant stated that he was working part-time and described his injury as “mental stress”. He stated that he first noticed the illness on 21 February 2020 at 1.20pm, and that he first sought medical treatment for the injury on 20 April 2020.
Under the question “Did the injury/illness result from one specific incident?” the Applicant wrote, “Received letter from Ms [E] (Facility Mgr) and see attachment”.
The attachment was a single typed page (R1/27).
In that attachment the Applicant detailed an incident on 21 February 2020 where he was told that he did not collect parcels by the Facility Manager, E, and that she was going to “escalate the matter”. The Applicant said that he had collected the parcels. The Applicant stated that he thought it was because he had not said “hello” to K who was the girlfriend of J, his immediate supervisor (R1/27).
He also referred to 24 February 2020 in the attachment. He stated that he was (R1/27):
…called into the office by Territory Manager requesting me to go home. They will be investigating this matter and provide feedback.
The Applicant then listed “event dates” between 1 April 2019 and 23 December 2019, and 16 January 2020 and 24 February 2020, but there was no narrative or explanation as to what happened on those dates.
Under the heading, “Hi-light to incidents in Oct 2018” the Applicant stated the following, which apparently describes an incident where a colleague, F, used abusive words towards him and where persons in management positions (B and N) failed to address (R1/27):
[B] (supervisor) has instructed me to undertake an Adhoc run to [suburb name omitted] to collect parcels i.e. 40 cartons of wine. The following day [F] (Driver) being abuse towards me using vulgar words with actions accusing me for the Adhoc collections of that parcels. I informed [B] in regards to this bad behaviour. [B] told that the adhoc run supposedly to be undertaken by [F] but he refuses to do so. Thereafter [F] continue being verbally abusive towards me. In many occasions this happen in the present [sic] of [N] (Supervisor). This matter has been brought to the attention of Facility Manager ([E]) in the present [sic] of [T] (Supervisor) and Ms [L] (Union Rep) on 30 January 2020.
(As original.)
On 21 August 2020 a claims manager from Australia Post determined that the Applicant’s claim for compensation should be denied (2020/6518 Determination). The claims manager stated that he was not satisfied that liability existed under s 14 of the SRC Act and that he considered the reported actions by the Applicant’s managers as reasonable administrative action taken in a reasonable manner in respect of his employment (R1/66-68).
In a letter dated 14 September 2020, received by Australia Post on 24 September 2020, the Applicant requested reconsideration of the 2020/6518 Determination (R1/70-73). He accused his managers and co-workers of bullying and collusion, specifically:
I genuinely suffered serious mental illness due to constant bullying, discrimination, sexual taunts and abuse of management power by Ms [E], [J] and co-workers. It’s from October 2018 to February 2020 which I finally breakdown with psoriasis all over my body with mental stress.
The Managers [E] and [J] had lied about what happen and they are covering it up by suggesting that their conduct was in relation to the reasonable management of my work.
I have recorded and diarised every incident to back up my charges against your Managers and Supervisor. They have treated me unreasonably and have clearly discriminated against me and bullied me.
Over approximately four pages the Applicant provided more examples of incidents he alleged occurred at Australia Post. He referred again to the 21 February 2020 incident where he was accused of failing to collect parcels, stating that it was “clearly fabrication” and that he believed that the “main reason” was that he did not say hello to J’s girlfriend, K.
He also referred to a meeting on 30 January 2020 with E, T, and a union representative, where he had raised the incident of F verbally abusing him with B and N, but it was “swept under the carpet” (R1/72). He referred to F making a “racial taunt and sexual assault on me”. The Applicant then alleged that E had stated “they are giving me 3 months behavioral [sic] performance”.
The Applicant also detailed additional incidents on (R1/70-73):
·1 April 2019: J refused to approve his forklift ticket being paid for by Australia Post but had approved them to be paid for two new recruits.
·16 April 2019: The Applicant was called into E’s office and told he had breached Australia Post policy by not saying “hello” to her. The Applicant also stated E “went behind my back” in cancelling a meeting with a union representative and three other drivers.
·30 May 2019: The Applicant met with T, J and E and raised the issue of “double standards” (that is, paying for others’ forklift tickets but not his) and favouritism of certain drivers who had longer meal breaks and did not do enough unloading. The Applicant stated that E said she would investigate it, but that the Applicant was “so disappointed” that he “requested for two weeks’ unpaid leave to recover”.
·5 December 2019: At a “toolbox meeting”, N commented about poor attendance at staff events and the Applicant “commented if he knew reasons why”. He stated he was stopped by E from questioning in front of the other staff and that the meeting was “immediately dismissed”. The Applicant alleged that he was called into E’s office the next day and that she raised the issue that he had not said hello to her again. He stated, “Many occasions [E] have been harassing and teasing me on this ‘hello’ issue”.
·9 December 2019: The Applicant was assigned a particular delivery run, which he referred to as the “Gold ahdoc run” but was taken off it by N.
·16 January 2020: At a “toolbox meeting” the Applicant asked J why he was taken off the “Gold ahdoc run” and was told he was coming back too early. E stated that he should not ask this question in front of other staff and ended the meeting. The Applicant alleged that it should have been discussed in front of the other staff to be transparent.
·22 January 2020: The Applicant received a formal counselling letter for unsatisfactory behaviour from E which he “vehemently” disagreed with. The warning, as described by the Applicant, appeared to be for allegations of swearing in the workplace. The Applicant referred to the company’s “ethics” being “heavily imposed only on me not across the board”.
·24 February 2020: He met with R, the Territory Manager to discuss the 21 February 2020 incident (the allegation that the Applicant failed to collect parcels), but that he was instructed by R to go home, and that R would investigate further.
·10 March 2020: The Applicant stated that he received a letter from R referring him to a fitness for duty assessment conducted by a psychiatrist which he attended. The Applicant stated that he thought he was being subjected to psychological evaluation because he had disagreed with management rules and styles.
Finally, the Applicant stated that when working on the dock he would ensure “the place is clean and safe” but that “some irresponsible co workers” had blocked access to his workstation, “messing it up”. He said he had brought this to the attention of supervisors “many times” and attached two photos. He also referred to co-workers driving forklifts unsafely, objects being placed on the emergency walkway and J, T and N causing “many conflicts… between drivers for their personal benefit”. The Applicant stated that his co-workers had been abusive and had used “vulgar language” in front of supervisors, but no action had been taken.
The Applicant concluded his reconsideration request by stating, “I found that I was not given the equal opportunity to voice my opinions; the management has since blocking any issue I raise for better safe working place including duty of care of the employee”.
On 5 October 2020, a reconsideration officer of Australia Post decided to affirm the 2020/6518 Determination to deny liability for the Applicant’s claim of “mental stress”. I will refer to it as the 2020/6518 Reviewable Decision.
The reasons given by the reconsideration officer for denying liability included that there was no evidence to support the Applicant’s claims of his managers acting inappropriately and/or bullying him. The reconsideration officer also referred to an incident on approximately 21 February 2020, which was the date he claimed he first noticed the symptoms, and that the Applicant had been invited to attend a formal counselling discussion about his failure to adhere to a directive at that time. She concluded that it is possible that the Applicant suffered from a psychiatric ailment but that any condition was not compensable because it was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment (R1/77-80).
On 21 October 2020, the Applicant’s representative lodged an application seeking review of the 2020/6518 Reviewable Decision in this Tribunal.
The right knee pain workers’ compensation claim
The Applicant made a claim for “Knee pain RH” on 15 March 2019. In his claim form in response to the question, “When did the injury happen or when did you first notice the illness?” he stated 18 February 2019 at 14.30 and that he first sought medical treatment on 18 March 2019 (R2/31).
The Applicant’s claim for “right knee pain” was accepted as being sustained on 14 February 2019 (R2/52, 53).
In a determination dated 14 August 2020, a compensation claims officer from Australia Post approved the payment of compensation based on normal weekly earnings under s 19 of the SRC Act for 23 July 2020 to 29 July 2020, and for 30 July 2020 to 5 August 2020 (R2/98-99) (2020/6519 Determination).
In a reconsideration on own motion dated 2 September 2020, a claims manager of Australia Post varied the 2020/6519 Determination so that Australia Post was not liable to pay compensation in accordance with s 19 of the SRC Act for the Applicant’s absence from employment from 30 July 2020 to 5 August 2020 (R1/110-111). I will refer to this as the 2020/6519 Reviewable Decision.
The reasons given by the claims manager for making the 2020/6519 Reviewable Decision included that the Applicant was absent from work despite his treating doctors indicating he could return to work with restrictions and that instead he was absent due to a psychological condition (R2/110).
On 2 September 2020, the Applicant’s representative lodged an application seeking review of the 2020/6519 Reviewable Decision in this Tribunal (R2/10-12).
OVERVIEW OF THE HEARING, WITNESSES, ISSUES AND EVIDENCE
Joined applications and representation
On 24 February 2021, the Tribunal’s Assistant Case Assessment Registrar decided that applications 2020/6518 and 2020/6519 be joined and heard before the Tribunal at the same time.
The hearing was on 26, 27 and 28 March 2024.
The Applicant was represented by Mr Wong of Soul Legal. The Applicant’s wife was also present as a support person.
Australia Post was represented by Mr Woulfe of Counsel instructed by Ms Danti from Moray and Agnew Lawyers.
Witnesses and the factual basis for the claims
In their hearing certificates the parties had indicated that they intended to call medical witnesses. The Applicant had proposed to call consultant psychiatrist Dr Frederick Ng and the Applicant’s treating psychologist, Professor Miguel Fernandez. The Respondent proposed to call consultant forensic psychiatrist Dr Lawrence Terace.
At the commencement of the hearing, the parties agreed to proceed based on the Applicant and two lay witnesses (J and R) giving evidence in person at the hearing.
This was because Dr Terace had stated in his reports (R3 and R4), that there were two possible conclusions depending on the factual findings of the Tribunal.
If the Applicant’s allegations against Australia Post (including bullying and harassment in the workplace) were correct, then the events in the workplace provoked an adjustment disorder. Dr Terace commented, “If [the Applicant] was mistreated, then the matter is relatively simpler with respect to causation” (R3/pages 32 and 33 of report, underlining in original). In this factual scenario, the Applicant would succeed in application 2020/6518 and the 2020/6518 Reviewable Decision would be set aside and substituted with the decision that liability under s 14 of the SRC Act should be accepted.
However, if the allegations made against him by others (including J and R) were correct, then any mental ailment was not caused by the workplace, but rather had a constitutional causation from maladaptive personality characteristics of the Applicant (R6/page 16 and 17 of report). In this factual scenario, the Applicant would not succeed, and the 2020/6518 Reviewable Decision should be affirmed.
In his report dated 21 February 2022, Dr Terace described the question succinctly (R3, page 32) as being: “whether [the Applicant] is correct as to being mistreated or was his perception simply a consequence of his own inherent maladaptive personality characteristics?”
It was agreed that once I had made these factual findings, I could consider the evidence of Dr Ng and Dr Terace on the papers and on the basis that the rule in Browne v Dunn (1893) 6 R. 67, H.L. which requires contradictory evidence to be put to a witness before it can be relied upon, would not apply.
Thus, the hearing proceeded in that manner with the Applicant giving evidence on the first and second days of the hearing, and J and R giving evidence on the second day. The whole of the third day was taken up with closing submissions.
The parties did not seek to call medical witnesses regarding application 2020/6519 concerning weekly earnings for the Applicant’s right knee pain. I apprehended this was because my factual findings in application 2020/6518 concerning the Applicant’s claim for “mental stress” would, at least in part, affect the outcome of application 2020/6519.
Specifically, the Respondent’s representative submitted that the Applicant’s incapacity for work including during 30 July 2020 to 5 August 2020 related to a non-compensable psychological condition, based on medical certification from his general practitioner dated 31 July 2020 and the reports of his treating surgeon dated 2 July 2020 and 30 July 2020 (RSFIC, para [45]).
Applicant’s request for the Tribunal to consider s 19 payments for a broader period
The Applicant’s representative, Mr Wong, submitted that the Applicant was incapacitated for work during this broader period and therefore was entitled to receive compensation for weekly earnings.
Further, Mr Wong submitted at the hearing that I should make a finding that the Applicant continued to be incapacitated for work and entitled to receive payments under s 19 of the SRC Act after the period considered in the 2020/6519 Reviewable Decision (30 July 2020 to 5 August 2020). I understood this to mean that I should set aside the 2020/6519 Reviewable Decision and substitute a decision that normal weekly earnings should be paid for a longer amount of time.
Mr Wong submitted that the many medical certificates the Applicant had submitted in these proceedings evidenced the Applicant’s incapacity for a longer period. Those medical certificates spanned 18 March 2019 to 14 September 2022 (A1/131-241) and 1 December 2022 to 4 September 2023 (A2/13-29).
I expressed concerns that I did not have jurisdiction to make such a finding. Mr Woulfe agreed. Mr Wong could not point me to any caselaw that would support his submission that I had jurisdiction to consider a broader period.
In addition, I cannot see any evidence that the Applicant made a proper claim for weekly earnings for a broader period, or whether the question of a broader period was before the original decision-maker (Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250).
Additionally, compensation is not payable unless the person has made a claim (s 54(1) of the SRC Act). The claim should also be made using the approved claim form (s 54(2) of the Act). It is not clear to me whether the Applicant had made a proper claim for the periods covered by the additional medical certificates he submitted. The claim form that I have in the T-documents (R2/31-33) is not a claim at large for incapacity.
It is therefore open to the Applicant to make a claim for incapacity for a broader period using the approved claim form. That claim will need to be determined, and if the determination is unfavourable to the Applicant, he would need to apply for a reconsideration under s 62 of the SRC Act. It is that reconsideration decision that is the Reviewable Decision before the Tribunal and which the Tribunal would have jurisdiction to review (s 60 of the SRC Act). The Tribunal does not have jurisdiction in the absence of a reviewable decision.
The issues
With that background in mind, I now turn to the issues before me for consideration.
Thus, with respect to the 2020/6518 Reviewable Decision, the issue that I am required to determine is whether the Applicant suffered from a “disease” as defined by s 5B(1) of the SRC Act. This requires consideration of:
(a)whether the Applicant suffered from an “ailment”;
(b)if so, whether the ailment “was contributed to, to a significant degree” by his employment with Australia Post (with reference to the matters in s 5B(2) of the SRC Act). The factual basis for the Applicant’s claims, based on his evidence and the evidence of J and R, is relevant to this sub-issue;
(c)if so, whether it was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [the Applicant’s] employment” (s 5A(1) and (2) of the SRC Act);
(d)Whether the exclusionary provision in s 7(7) of the SRC Act applies because the Applicant did not disclose any prior mental health condition in his pre-employment medical questionnaire.

I note that both parties agreed that the claim for “mental stress” was an ailment or an aggravation of an ailment and therefore that s 5B of the SRC Act, which referred to the significant degree test (which I shall explain below), was applicable. I agree with that assessment, and I have outlined the legal framework and the reasons why I agree below.
With respect to the 2020/6519 Reviewable Decision, the issue is whether the Applicant was incapacitated for work because of his “right knee pain” during the period 30 July 2020 to 5 August 2020, as required by s 19(1) of the SRC Act.
The evidence
I admitted the following documents into evidence at the hearing:
(a)Applicant’s Book of Documents dated 25 November 2022 (Exhibit A1).
(b)Applicant’s Supplementary Book of Further Documents dated 22 September 2023 (Exhibit A2).
(c)Applicant’s Supplementary Book of Further Medical Certificates dated 19 March 2024 (Exhibit A3).
(d)Applicant’s Book in Reply dated 28 March 2024, comprising 32 pages (Exhibit A4).
(e)Section 37 T-Documents for application 2020/6518, labelled T1-T17, comprising 80 pages (Exhibit R1).
(f)Section 37 T-Documents for 2020/6519, labelled T1-T20, comprising 114 pages (Exhibit R2).
(g)Report of Consultant Forensic Psychiatrist Dr Terace dated 21 February 2022 and letter of instruction dated 29 November 2021 and further letter of instruction dated 11 February 2022 (Exhibit R3).
(h)Report of Dr Terace dated 13 February 2023 and further letter of instruction dated 11 February 2022 (Exhibit R4).
(i)Statement of J with annexures J1-J4 (last initial removed) dated 25 Oct 2022 (Exhibit R5).
(j)Supplementary statement of J dated 5 March 2024 (Exhibit R6).
(k)Statement of R dated 5 March with annexures R1-R18 (last initial removed) (Exhibit R7).
(l)Statement of V, the HR Advisor, with annexures V1-V18 (last initial removed) dated 31 Oct 2022 (Exhibit R8).
(m)Respondent’s Book of Summons Documents filed 27 March 2024, including medical report of Dr Chang dated 13 February 2014 (Exhibit R9).
LEGAL FRAMEWORK
Liability to pay compensation
Liability to pay compensation is provided for in s 14(1) of the SRC Act:
14. Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
With respect to the payment of medical expenses, s 16(1) of the SRC Act states:
16. Compensation in respect of medical expenses etc
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
With respect to compensation for weekly earnings if an employee is incapacitated for work, s 19 of the SRC Act states:
19. Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
Injury
An “injury” is defined in s 5A(1) as follows:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
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.
(Original emphasis.)
Section 5B defines a “disease” as follows:
(1)In this Act:
disease means:
(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 or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
(Original emphasis.)
Reasonable administrative action
Further s 5A(1) provides that an injury “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of an employee’s employment” is not an injury. Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Ailment
A disease is defined in s 5B(1) to include an “ailment” or the “aggravation of an ailment”. Section 4 defines “ailment” as “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
The definition of an “ailment” in s 4(1) was discussed by Drummond J in Comcare v Mooi (1996) 69 FCR 439, 442 (Mooi):
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word — ‘a morbid affection of the body or mind; indisposition: a slight ailment’ (The Macquarie Dictionary) — that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
In Vo and Comcare [2005] AATA 773 (Vo) the Tribunal discussed the meaning of an “ailment”, at [54]:
The definition of ‘ailment’ is very broad ... The terms ‘ailment’ and ‘morbid condition’ both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of ‘disease’ in the Act. In context the words ‘disorder’ and ‘defect’ should be interpreted accordingly. The definition of ‘ailment’ in section 4 is somewhat circular as it includes the word ‘ailment’ within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of ‘ailment’ includes ‘a morbid affection of the body or mind’ and ‘morbid’ includes ‘affected by, proceeding from, or characteristic of disease.’
The contribution of work to an injury
The distinction between ss 5A(1)(a) and 5A(1)(b) is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) will determine the applicable test for determining the contribution of work to an injury.
Specifically, for there to be an injury (other than a disease) (often referred to as an “injury simpliciter”), the injury must arise out of, or in the course of, employment (s 5A(1)(b)).
An injury simpliciter (within the meaning of s 5A(1)(b)) can be contrasted with a “disease” which, according to s 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 85 FCR 264, 268; [1998] FCA 944) than that required for an injury simpliciter.
In Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502, Katzmann J discussed the meaning of a “significant degree” in s 5B(3). Her Honour stated, at 201 [78] that:
A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.
(Original emphasis.)
Further, Katzmann J stated at 204 [93]:
There is no room for doubt that the purpose of the 2007 amendments [being the amendments which added s 5B into the SRC Act] was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial.
Katzmann J also indicated, at 204–205 [94], that although s 5B(2) states that certain matters “may” be taken into account, implying that the decision-maker has a discretion in evaluating the degree of contribution, a proper construction of s 5B(2) indicates that the matters contained in s 5B(2) should be taken into account:
Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters ‘may’ (not ‘shall’) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that ‘may’ means ‘shall’: see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222–223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38; 326 ALR 16 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal’s reasons to indicate that it carried out the kind of evaluative exercise required by the statute.
The questions that the Tribunal must ask to identify whether a condition may qualify for characterisation as a disease or an injury simpliciter (and consequently to identify the applicable test for determining the contribution of employment) were described by the majority in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 (“May”) at 481–482:
… the Act requires the tribunal of fact to give consideration to ‘the precise evidence, on a fact by fact basis, ... accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.
First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
If the answer to both those questions is ‘Yes’, there is a ‘disease’ within para (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.
If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act.
If there be an ‘injury’ in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered ‘Yes’, there is an ‘injury (other than a disease)’ within para (b) of the definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
(Footnotes omitted.)
In a separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for a condition to qualify for characterisation as an injury (other than a disease). His Honour stated at 487 [78]:
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
(Footnotes omitted.)
Wilful and false representation
Subsection 7(7) of the SRC Act provides that a disease will not be an injury if an applicant made a wilful and false representation that they did not suffer or previously suffer from a disease.
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
IS THE APPLICANT’S PSYCHOLOGICAL CONDITION AN “AILMENT”?
As I mentioned above, at the hearing of the current applications, both parties proceeded on the basis that the Applicant’s psychological condition fell within the “disease” provision under s 5B(1) of the SRC Act.
In a report dated 6 September 2023, Consultant Psychiatrist Dr Frederick Ng stated that the Applicant (A2/8-9):
…currently continues to experience ongoing depressive and anxiety symptoms in the pathological range, and these may be categorised either as an ongoing adjustment disorder with mixed anxiety and depressed mood, or in the alternative, at times his psychiatric symptoms may approximate that of a major depressive disorder (DSM 5 TR) with associated pathological anxiety, currently remaining partially treated, persistent and problematic.
(Emphasis in original.)
In a report dated 21 February 2022, Consultant Forensic Psychiatrist Dr Lawrence Terace stated the following diagnosis for the Applicant (R3/46):
1. Adjustment Disorder of the mixed type.
2. The differential diagnosis should probably include a Major Depressive Disorder of mild severity, in partial remission.
(Emphasis in original.)
However, in his report dated 13 February 2023 (R3/21), Dr Terace changed his opinion regarding a diagnosis for the Applicant:
1.1 In the present, I think the primary diagnosis is of inherent personality constitutional dysfunction and [the Applicant’s] demoralisation and irritability is more an expression of that, rather than of an Adjustment Disorder.
1.2 However, when he made the transition between the former Adjustment Disorder of the mixed type to the simple expression of maladaptive personality-characteristics is not clear to me based on the history.
1.3 I no longer consider that the differential diagnosis should include a Major Depressive Disorder of mild severity in partial remission.
On either diagnosis, the Applicant suffers from a condition that is of the emotional or behavioural kind, rather than because of any physiological change or disturbance. I agree that it is a therefore best characterised as an “ailment”.
WAS THE APPLICANT’S MENTAL AILMENT CONTRIBUTED TO, TO A SIGNIFICANT DEGREE BY HIS EMPLOYMENT WITH AUSTRALIA POST?
I now turn to whether the ailment suffered by the Applicant was contributed to, to a significant degree, by his employment with Australia Post.
The answer to this question will depend on my findings about the evidence of the Applicant and the lay witnesses. That is why the parties’ agreed that the hearing would proceed based on that evidence, because my findings would inform whether to prefer the evidence of Dr Ng or Dr Terace concerning workplace contribution.
More specifically, in his report dated 8 June 2021, Dr Ng accepted that there was a “plausible history” that the Applicant was “the subject [of] mistreatment and victimisation at work” (A1/43). Dr Ng further explained that:
From the history elicited and the available documentation I form the view that the most significant contributing factors in materially and directly precipitating the onset of the psychiatric difficulties as alluded to above, was your client’s plausible allegations of the subject difficulties at work the basis of this claim.
After being provided with copies of Dr Terace’s two reports, and statements from J and V, Dr Ng stated in a report dated 6 September 2023 that his psychiatric opinion and conclusions from his report dated 8 June 2021 were unchanged (A2/9).
However, after a consideration of additional material, including the statements from J and V, in his report dated 13 February 2023, Dr Terace noted a “clear inconsistency and disparity” between these statements and statements made by the Applicant (R4/15-16). Dr Terace’s opinion was (correctly, in my view) that “whose evidence is of greater weight is ultimately a legal determination”. Dr Terace explained:
This essentially means that if the history of others is correct, then this does support the view of inherent personality-dysfunction in [the Applicant].
In those circumstances, it would then be reasonable to argue constitutional causation rather than an occupationally-caused disorder with respect to the allegations of mistreatment by [the Applicant].
It is often the case that persons with maladaptive personality traits who are aggrieved may perceive themselves as the victims when they may frequently actually be the aggressors in the circumstances, failing to recognise their own internal mental state and the nature of external speech and conduct and this is commonly associated with maladaptive personality-characteristics.
It is for that reason that establishing the veracity of the collateral history is so important in this case because I am presented with such disparate versions of events.
(Emphasis in original.)

Dr Terace continued to state his view that there were two possible conclusions, depending on whose evidence is preferred (R3/16-17):
This essentially means that there are one of two possible conclusions to reach in this case and they are the following –
If [the Applicant’s] allegations are correct, then this initially provoked a former Adjustment Disorder in probably already a psychologically vulnerable individual. However, the clinical picture now supports the view that the term Adjustment Disorder probably does not best explain the present clinical picture, and rather the presentation is of a person who is aggrieved, frustrated, without work and is understandably fearing for his work and financial status and the longevity of the Compensation process. However, despite the sleep-disturbance described, the symptoms do not warrant the diagnosis of an Adjustment Disorder or another psychiatric disorder in the present and is probably better described in the present as frustration, demoralisation and emotional-dysregulation related to inherent personality-characteristics.
The other conclusion is that if the allegations against him by others i.e., the other Statements are correct, then this presents a collateral history fully supporting the view that the problems are not in others, but rather in [the Applicant’s] maladaptive experience of mental events and interpersonal relationships with others in the workplace, and the latter is commonly seen associated with maladaptive personality-characteristics which are, by nature, inherent and constitutional in nature.
Thus, the issues of causation in this case principally depend upon the weight of evidence determined from an industrial and legal perspective as to whose version of events is preferred.
Therefore, in my report dated 21 February 2022, when I expressed the opinion state that [sic] ‘ … if [J’s] history is correct, and [the Applicant’s] is not, then this would support the view of inherent personality-dysfunction in [the Applicant], such that it would be reasonable to argue a constitutional causation rather than an occupationally-caused disorder with respect to the allegations of mistreatment by [the Applicant]. The findings made during my re-examination and the enclosed documentation support this opinion.
(Emphasis in original.)
To consider the issue of causation, I will provide an overview of the evidence of the Applicant, J and R, who each gave evidence at the hearing.
A statement from V, the HR Advisor was also in evidence (R8) but she did not give evidence at the hearing. Her statement outlines the complaints and incidents made by others that were discussed by the Applicant, J and R in their statements. She provides an explanation of the human resources processes undertaken with respect to those incidents and meetings. Her statement provides contemporaneous confirmation of the incidents and meetings referred to by J and R, but it is primarily relevant to the issue of reasonable administrative action.
I have therefore focussed on the evidence of the Applicant, J and R, which is relevant to the issue of whether the Applicant’s ailment was contributed to, to a significant degree, by his employment with Australia Post.
THE APPLICANT
In addition to the evidence in his claim form dated 8 June 2020 (R1/24) and the attachment to that form (R1/27), the Applicant lodged a witness statement dated 30 July 2021 (A1/6-12) and a supplementary statement dated 25 November 2022 (A1/13-32).
30 July 2021 witness statement
In his witness statement dated 30 July 2021, the Applicant stated that he commenced employment with Australia Post as a Dock Marshal in June 2018. He stated that the position involved organising the loading dock and keeping it clean and tidy. He would also pick up and deliver parcels if required.
The Applicant stated that:
Within a fairly short time after I started, I would estimate around October 2018, I started to feel victimised, picked on and targeted. For example I was verbally abused by a van driver, however when I reported the incident to my supervisor, there were no consequences for the van driver.
I felt very let down and unsupported by the employer.
The Applicant described another incident when his employer would not pay for the renewal of his forklift ticket:
There was another incident where I needed to renew my forklift ticket in order to perform my usual work duties.
It is customary for the employer to pay for this.
When I spoke to my supervisor [J] in April 2019 about this, I was told to pay for it myself and claim it is a work expense on my annual tax return.
I then became aware shortly after this that 2 new recruits had their forklift tickets paid for by the employer.
I felt very disappointed, let down and discriminated against by the employer.
These incidents undermined by confidence in the employer being a fair employer who treated all employee’s equally because it was becoming apparent to me that I was being treated very differently and unfairly to other [sic].
The Applicant explained that he started to have issues with his knee:
Around November 2018 I noticed the gradual onset of right knee symptoms, pain and restriction which gradually worsened and became quite severe.
By February 2019 I was so concerned about the right knee that I sought medical advice and assistance.
I attempted to try to keep working in spite of the continuing and increasing right knee symptoms, pain and restriction however in spite of my best endeavours the workplace bullying and harassment continued and increased.
He further stated that he thought he was being punished for having a good work ethic and for working too quickly and to efficiently (A1/8, paras [18]-[22]).
The Applicant also stated that the expletive “fuck” was commonly used in his workplace. He stated that none of his work colleagues had ever been disciplined for using the word, and yet he was sent a warning letter when he used the word (A1/8-9, paras [23]-[25]). He stated that:
This is just another example of how I am targeted and victimised by a discriminatory employer.
I also feel there are some racial overtones in some of the ways that I am treated and targeted.
A further example given by the Applicant was that he was accused of not saying hello to some people. He stated that he had said hello to co-workers on numerous occasions and had been deliberately ignored. This was, he stated, why he did not bother to say hello to them from then on (A1/9, paras [28]-[29]). The Applicant said that one of his managers raised this issue with him:
I recall the meeting in mid-April 2019 with the employer, represented by [E], wherein she asked me whether I would like to sort out the alleged issue of me not saying hello to co-workers the easy way or the hard way. I recall [E] saying words to the effect that she was going to seek advice as to how to deal with me. The very manner in which she addressed me like this I found to be intimidating and very confrontational and as well unprofessional.
The Applicant also described another incident where he was disciplined for allegedly failing to pick up a parcel:
Sometime in February 2020, and I cannot recall the exact date I was advised that I was in trouble for failing to pick up a parcel.
When I spoke to the employer about this allegation and to try to ascertain what it was that I was supposed to have picked up but didn’t, I was advised that I had in fact picked up all that I was supposed to have, but the issue apparently, was that I didn’t say hello to the girlfriend of one of the managers, [J], when I went to collect the parcels.
He stated that he was sent home from work because his employer wanted to conduct an investigation into his behaviour. The Applicant stated:
On 24 February 2020 I was sent home by the employer who wished to conduct an investigation. As well, my right knee pain had increased and I was having increasing difficulty in doing even light duties.
In early March 2020 I was advised that the employer had arranged for me to be reviewed by a psychiatrist as the employer wanted a psychiatric opinion as to my fitness for work.
My understanding from speaking with the psychiatrist was that I was considered fit for my work from a psychiatric perspective.
The employer has failed to provide me with a copy of that report.
However I was advised that the employer would not have me back at work, but that they would keep paying me my usual wage.
However, once I and structured a solicitor to assist me with my issues with Australia Post the employer ceased paying me my wages.
This caused my symptoms of being stressed, depressed and anxious to increase and also caused me to question my very being. I did have some intermittent suicidal thoughts.
The Applicant described that in May 2020, he had right knee surgery and that when he approached the employer approximately four weeks after the surgery wanting to return to work, they refused to allow him to come back (A1/11, para [40]).
He described that he experienced the following symptoms because of his treatment in the workplace:
I continue to feel depressed and anxious about the situation I am now in.
I have difficulty getting to sleep and staying asleep and often suffer with bad dreams, which previously I never encountered. I burst into tears easily, I constantly feel tired and fatigued and become easily irritable.
I have also developed psoriasis which I am advised can develop as a result of stress.
I had never suffered with psoriasis previously.
My appetite is now reduced and I have lost approximately 6 kilograms in weight.
I have lost interest in my personal appearance and grooming to the level previously.
I have withdrawn socially as I don’t feel like socialising as I did previously, and prefer to stay at home more than go out.
…
I have suffered with a significant loss of libido which has negatively impacted on my relationship with my wife.
I have become forgetful and my level of concentration has diminished significantly together with a general lack of motivation and drive.
25 November 2022 supplementary statement
In this statement, the Applicant described his duties as a Dock Marshal. He stated that during his first month there were delays every day and deadlines were not met. He stated that drivers often did not have time for lunch during peak times and so they would give their keys to him and that he would do the unloading himself. If he did not do so, delays would occur, and deadlines would not be met. The Applicant stated that “often the van drivers will throw the parcels during unloading and damage the goods because they are angry when delay occurred”. He said that he gave “feedback to [J] multiple times” that two extra staff were needed for unloading to give the van drivers sufficient time for lunch, amongst other suggestions, but that his “feedback was not well received”. He stated that J did eventually organise two extra staff, but they were on restricted duties and could not contribute much (A1/15-16).
The Applicant stated that he was respected by most van drivers because he assisted them, but there were a handful of van drivers who would not cooperate with him and refused to work as a team (A1/16).
He stated that he was offered a permanent full-time position due to his “work ethic and competency”, but declined as he was happy with his part-time hours. He was awarded with a “voucher” in early 2019 as a reward for his “work ethics and behaviour”. The Applicant stated that due to his “frustration” working as Dock Marshal, he was relocated to the position of Van Driver. He stated that he requested a transfer in mid-2019 but it did not eventuate (A1/17).
The Applicant also gave additional evidence about the forklift ticket issue (A1/17-18):
When I applied for a job with Australia Post [J] mentioned that the Dock Marshall position that was vacant and no one wanted to do this job.
[J] did ask if I hold a forklift ticket, I told I had and it’s to be renewed. [J] advised to bring in the forklift ticket to show him. I was offered the job and took the position of Dock Marshall.
There are staff who were given a forklift license by Aust Post but they are not working on the Dock; they are always out doing runs. It is just [J] who wants to pick and choose who he wants to give it to. I believe that anyone who ‘suck up’ to [J] is able to get what they want. An example – [K], one of the drivers who renewed his driving licence was told by [T] to provide the receipt and pass it on to [J] for reimbursement.
I have asked [J] to get me the Forklift ticket because a lot of the times when doing dock work I am all by myself, and there was no one else around who was licensed to drive the forklift. The 2 or 3 staff with forklift tickets are out on the runs. I have to get help from another department …
Also during the peak hours I really need assistance in getting the job done as often all the Vans arrive at the same time. These Vans needed to be out on time for there run and for the Drivers to have their lunch. Most times only the Van drivers are the one helping me. [J], [N], [T] and [B] are sitting in the office. I’ve seen [N] playing cards on the computer in the office or disappearing elsewhere.
[J] never explained to me the reasons he has now included in his statement about why he would not pay for my forklift ticket. His refusal to fund my forklift ticket without explanation caused me much grievance. I was trying to best do my job, and I felt being discriminated against.
(As original.)
With respect to his relationships with co-workers, the Applicant stated that (A1/19 and 27-28):
·“[J] was not very happy when he saw the Van drivers are working with me as team and giving me respect”.
·He stated that he “did not get along well with [F]” who often abused him by using “abusive language, racial taint, sexual assault …”. He further stated that “every time [F] … is at the dock he will be abusive to me using foul language” and that the continuing abuse from F was getting to him. The Applicant claimed that other co-workers had complained about F, but F never received a “formal letter”.
·The Applicant also described having problems with S who would not help other drivers unload. He described Sean as “one of [J’s] ‘circle’ people”. The Applicant stated that S complained to J. He stated that J wanted to see him, with S present and that “he [S] came to hit me and threatened me in front of [J]” and that J did not say anything or take any action (A1/20). The Applicant stated that S would load his parcels and leave the warehouse late which required other drivers to stop unloading and move their vans so S could drive past them, to exit the warehouse. The Applicant stated that he suggested to S many times not to do this, which resulted in S making a complaint to J on 20 July 2018.
·He stated that another driver, D, used abusive language towards him for no reason and that “many drivers” complained about his abusive language to J, T and N and “only after multiple complaints” was he removed from the dock to drive vans.
The Applicant stated that he did not get support from management and that by early 2019 he was quite disillusioned and began to isolate himself. He stated that the reasons he no longer wanted to work on the dock included that he did not get any extra help during peak hours, most of the time he was left to perform his job by himself, some of the drivers were abusive and intimidating and didn’t want to work as a team, drivers would throw parcels and damage them when they got angry, and it was an uncomfortable working environment that was frustrating the Applicant and getting him down (A1/21).
The Applicant stated that J offered him a supervisor job which he declined because he was happy with part time hours, “[t]he work place and staff needed training and development”, and staff did not interact with each other well (A1/21). The Applicant thought that this discussion occurred later than 15 March 2019, “before [J] and [the Applicant] fell out with each other”, as was J’s recollection in his statement. The Applicant claimed to have “said jokingly that if I was supervising the team, I would sack them and replace them with people who could work together as a team” (A1/22). He disagreed with J’s evidence that he changed his mind about wanting a transfer. He stated that he was not informed that J had made enquiries about transferring him. He claimed that J had said “we don’t want to lose you; you are the best worker I got” and that two other workers were transferred. He stated that he asked J if he could be on van service because he was “unable to effectively perform the dock duties due to obstacles I described earlier”.
The Applicant stated that it was stressful for him to go back to the dock and that things were “getting worse and worse”. Nevertheless, he stated that he would stay back approximately 45 minutes to an hour every day after completing his own run to assist T, the supervisor, to complete his job at the dock.
The Applicant described how his relationship with J became strained and that he felt that J started to treat him unfairly (A1/23-24):
Things just wasn’t working out, and my relationship with [J] became strained. My suggestions to improve the place went on deaf ears. My complaints about employees who were not pulling their weight, and employees who were bullying me also went on deaf ears.
It was very frustrating working in an environment where things were not being done properly, and everything was slack, and to the detriment of the organisation and the customers it serves.
Due to my complaints about the way things were run, I believe that [J] started to view me as a threat to his position. He started to pick on me, making accusations that I wasn’t greeting ‘hello’, singling me out and treating me unfairly.
There are others who don’t even say ‘hello’ to no one at the depot, some don’t make eye contact or acknowledge when I say hello to them?
I still did step out of my comfort zone and tried to talk to [J].
I remember that on 18 Sept 2019 (10.30 to 11.30am), I met with [J] off-site, at Noranda Palm shopping centre in one of the café. I expressed my concerns in regards to the matters that I have brought up for his attention and since no further progress I was thinking of looking at other possible work.
He said at the time that he did not want to lose me because I am good worker, honest, good natured and a hard working person.
Next, the Applicant described something he referred to as the “Tool Box meeting” on 16 January 2020. At this meeting he asked J why he had been told to stop the “Gold run”. He stated that J told him that he was coming back too early after each run. The Applicant said that before J could finish answering, E interviewed and called off the meeting, telling him that he was not supposed to ask such questions during the meeting (A1/24). The Applicant stated that he “wanted to discuss work ethics further” but E called off the meeting and he “was shut down – they just didn’t want to listen and change the way things were being done.” He stated that, “[t]his frustrated me and I lost it again” (A1/29).
The Applicant stated that on 21 February 2020, E called him into her office and told him that he had not collected some parcels on 14 February 2020 from another Depot. The Applicant said that he had query which parcels had not been collected but E could not provide him with an answer. He stated, “I knew it was all bullshit because I was always diligent in going about my work, and told her so”. The Applicant stated that later on 21 February 2020 he spoke to a co-worker, A about whether he had missed picking up some parcels on 14 February. A confirmed that no parcels had been missed, but that the Applicant had not said hello to K, J’s new girlfriend, so K had made a complaint. The Applicant stated that when he returned to the Depot he was approached by N, a supervisor, who asked how he was. The Applicant stated, “I am fine apart from the bad situations”, and that he told N “I don’t know when are you guys going to speak honestly”. This statement was in response to the Applicant believing that he was told he had failed to pick up parcels that he had actually picked up. He later stated that the “complaint that I did not pick up the parcel caused me to be very upset” and he believed the complaint to have been fabricated because he did not say hello to K (A1/29). The Applicant described that he believed these colleagues had colluded to manufacture a complaint against him (A1/29-30):
[K] … was [J’s] girlfriend at the time, and I believed that [K], [J] and [E] started accusations in regards to the parcel not picked up from [suburb name omitted].
There should not have been any doubt about my work ethic. If there was a parcel to be picked up, [E] and [J] would know that I would pick it up.
They set me up to provoke me, wanting me to speak to them badly in which I believe they are expecting me to respond. The behaviours are intentional. They were all making inflammatory allegations against me.
This was very disturbing. They were out to get me because I was raising issues with their ethics and how they were running the place. I can see how they were escalating things to cover up their wrong doing.
This really frustrated me. The frustration had been building up for over a year, and I lost it with [E] and [J] that day.
I have had trouble sleeping and suffered from severe sleep disruption because of the frustration about the workplace that had been building up.

Then, the Applicant described the following interaction with J (A1/25-26):
A little while later [J] came around me and said “What do you know?” At first I didn’t want to answer him but he kept on asking me “what you know”. I then replied by asking him back “what you know?”
[J] told me that “you are not talking to me?”. In response I said “how am I going to talk to you when you are creating all these problems”. [J] replied “I am not going to take this f---king shit from you”. I responded “likewise”. He did not stop there, he raising his voice trying to intimidate me. I then ask [J] “when are we going to solve this matter”. At this time we are all packing up to go home (end of shift). I went on to the clocking out area where [J] went to lower down the roller door to close up for the day; he is approx 4 meters away and we looked at each other with no facial expressions as I was leaving home.
I was very upset with [J] because he colluded with his girlfriend to frame me about missing a parcel, and I had just found that out from [A] earlier that evening that it was because I did not say ‘hello’ to her.
I just lost it with [J]. I was frustrated and had enough of the bullying and abuse.
The Applicant also described his interactions with R. The “items” referred to are from R’s statement which I discuss below (A1/30-31):
I explained to [R] on 24 February 2020 about my frustrations with the workplace and the poor work ethics of both staff and management. I explained that it was all getting to me, and I have had a few sessions of EAP counselling since December 2019.
In response to item 33, [R] never offered me a transfer to a different location. He also did not mention or provide advice / instructions if I needed to lodge a complaint.
In response to item 36, he took what I said out of context. This conversation took place on 24 February 2020 just after the events of 21 February 2020, and I was trying to explain my behaviour at work when I said that a “cornered animal will attack”. I was picked on and discriminated against consistently. I just wanted to be left alone to do my job, but they pushed me and set me up. That was why I eventually lost it and lashed out on 21 February 2020.
The Applicant stated that he was not offered work in a different location, even though psychiatrist Dr Lee had suggested it as a possibility. He said that he was advised by R by email on 14 and 15 February that it was not possible to move him to another location. The Applicant stated that he could see from work notes on 7 May 2020 that R did not want him back (A1/31).
With respect to R’s evidence in his statement concerning a meeting he and the HR Business Partner had with the Applicant on 15 May 2020, the Applicant stated (A1/32):
I did not realise that he saw me in such a discriminatory way at the meeting. [R] and [the HR Business Partner] appeared nice and caring at the time of our meeting on 15 May 2020. I can see now from the personnel records attached to the statement that they saw me as a problem that they had to manage.
Evidence at the hearing
The Applicant did not come across as a credible witness at the hearing. He was defensive and often had to be directed to listen to the question carefully and to answer the question being asked of him. I do not think that the Applicant was being deliberately dishonest. Rather, it was his perception of events that was problematic and inaccurate.
For example, when he was asked about the interaction with J on the dock on 21 February 2020 he perceived Mr Woulfe’s polite questioning as being confrontational (transcript/123):
MR WOULFE:            You weren’t happy with him, were you?
APPLICANT:              Of course – he accuse me for what I didn’t do.
MR WOULFE:            And you were standing up for yourself, were you?
APPLICANT:              I’m standing up for my right – I’m standing up for people accuse me for the things I didn’t do.
MR WOULFE:            Yes. Kind of in this way like you are doing with me now?
APPLICANT:              No, because the way you are talking to me. If you talk to me nicely, politely, I will talk to you nicely.
MR WOULFE:            Well, you’ve said that a few times.
SENIOR MEMBER: Mr [Applicant]?---Sorry. I just need to point this out so that you can comment on it. Mr Woulfe is asking you questions very politely, so he is not being mean to you. You might not like the questions that he is asking you but he is being very polite and speaking to you nicely, okay?
APPLICANT:              Sorry. Sorry.
The Applicant was asked about similar claims of bullying and victimisation that he had made in a previous workplace. He was reluctant to agree that bullying was a concern, and tried to impress that his depression was due to his pain from a hernia injury. He appeared to me to be going to lengths to differentiate the circumstances in his previous workplace from those that were substantially like those Australia Post (see, for example, statement of C dated 6 July 2011). Those circumstances were that he had alleged that work colleagues bullied him and colluded against him and that his managers were aware of his mistreatment but failed to act. For example, a letter from Registered Psychologist Ms Gloria Netto dated 22 August 2011 recorded that the Applicant was finding it difficult to cope after a hernia injury. It further reported the Applicant stating that he was “feeling depressed and frustrated as a result of treatment he was receiving from his employer” reported that “lies have been concocted against him by his employer to make it look like he had done the wrong thing at work which therefore affects his workers’ compensation claim” and that he was “the victim of constant bullying in the workplace” and that his managers were aware of it but never addressed it. This raises some doubt in my mind about the accuracy of the Applicant’s evidence.
Another example of the doubts that I have about the accuracy of the Applicant’s evidence concerns his answers to pre-employment medical screening on 5 April 2018. The associated medical report recorded “no” to the questions, “Have you ever had any mental health issue requiring medication (antidepressants, sedatives or sleeping tablets) or counselling?” and “Have you ever been referred to a psychologist or psychiatrist?”. He also answered “no” to the questions concerning whether he has ever had depression (R9/85). Those answers were incorrect because the Applicant had counselling with Ms Netto, with her letter dated 22 August 2011 confirming that he had completed 9 counselling sessions (R9/12). In a statement from a prior workers’ compensation claim dated 29 November 2011, the Applicant stated that due to being treated “badly” by his employer he developed symptoms which Dr Chang diagnosed as depression on 24 January 2011 (R9/16). Consultation notes from Dr Chang show that the Applicant had been diagnosed with the antidepressant, “Pristiq”, which he had ceased on 13 August 2013 (R9/78). Ms Netto also stated that the Applicant “continues to report feeling anxious and depressed” on 26 October 2012 (R9/77). I did not find the Applicant explanations to be satisfactory. For example, when asked about his answer indicating he had not previously had counselling, he stated (transcript/82):
I only remember the doctor tested me on physical. He didn’t ask me a question whether I went for a psychological. No, he didn’t ask me during the medical. He only tested me on my physical.
He claimed that “In my own conscience, I never had depression until I work for Australia Post” (transcript/83). The medical report that records the answers to these questions is a detailed form that appears to have been filled out with care. All applicable boxes have been checked and explanations were included by the examiner where appropriate. The form asks about psychological problems in question 2, question 4 and question 12. I am therefore not satisfied that the examiner failed to ask the Applicant any questions about psychological issues, including counselling or medication.
THE APPLICANT’S MANAGER, J
J made a statement dated 25 October 2022 (R5) and a supplementary statement dated 5 March 2024 (R6).
25 October 2022 witness statement
In his 25 October 2022 statement, J stated that he was the Applicant’s direct Manager. He reported to E who reported to R.
With respect to the Applicant’s request that the company pay his forklift licence, J stated:
When [the Applicant] commenced at Australia Post, he said that he had a forklift licence, but I then later found out that it had expired prior to him commencing. Australia Post paid to renew licenses if the employee has a current valid license, but as [the Applicant’s] license had already expired before he started work at Australia Post, it could not be renewed.
There were usually two or three people working at the docks he had a forklift licence. It was handy to have those employees with a licence available when needed. Australia Post did not necessarily need any more employees to have a forklift licence. I do not recall there being any specific need for [the Applicant] to have a forklift licence in order to carry out his duties.
J described the Applicant as not having particularly good relationships with other employees and that “[h]e would often ignore other employees and, at times, was verbally abusive and aggressive” (R5, para [6]).
J stated the on approximately 9 May 2018, the Applicant had an issue with another employee, F, although they had previously got along well. On approximately 1 November 2018, the Applicant came to see him with another worker, J, as his witness. He complained that he was offended by something F had said. J received a report on approximately 14 January 2019 that the Applicant had been swearing about F behind his back on the dock (R5, paras [7], [9], [10]).
J also referred to the Applicant having an incident on approximately 20 July 2018 with another co-worker, S, which ended in the Applicant offering to shake S’s hand, but S refused (R5, para [8]).
He stated that by approximately 2 April 2019, the Applicant was not really talking to anyone at work, and that on 10 April 2019, he said “hello” to the Applicant who ignored him. He stated that a driver reported to him on approximately 16 April 2019 that he had said “hello” to the Applicant who ignored him (R5, paras [11]-[13]).
J commented that despite these interpersonal conflicts, the Applicant’s work ethic was good. J stated that the Applicant had told him that “he did not enjoy working on the dock because he felt that others did not keep up with his pace and that frustrated him” (R5, para [14]).
He stated that on approximately Friday, 15 March 2019, the Applicant asked to transfer to another depot. J stated:
I warned [the Applicant] that the same issue could occur in another depot. [The Applicant] said that, if he were in my job role, he would have ‘sacked them all’.
J said that after that discussion he made enquiries to transfer the Applicant to a different depot, but that the Applicant suddenly changed his mind and said that he did not want to transfer (R5, para [15]-[16]).
J said that due to the interpersonal issues the Applicant had with other colleagues, he had arranged for the Applicant to do “van runs … which meant that he was out on the road all day and had minimal contact with others on the dock”. J commented:
[The Applicant] was kept on the van run, but it did not make any difference. He did not seem to get on with anyone at the workplace. As soon as he arrived in the dock area, he would often be angry. He would typically be in the dock area for about 15 nights each day. Everyone had to tiptoe around him, and he was always complaining about other employees. It was different complaints on different days. [The Applicant] remained on the red van run until he went off on sick leave.
With respect to his working relationship with the Applicant, J commented:
Over time, a working relationship deteriorated, and eventually [the Applicant] would not speak to me at all. I am unsure as to the reasons why.
On or around 28 March 2019, I tried talking to [the Applicant], but he responded with words to the effect of ‘if you want to talk to me, you can do that with only the Union here’. I reported the incident to [E] who spoke to [the Applicant]. Following that meeting, [the Applicant] followed me back to my office where he continued to say he was not being listened to in an aggressive manner.
J stated that E reported these and other incidents to Human Resources, and that V, the HR Advisor, recommended a face-to-face discussion (R5, para [21]-[22]).
J described E needing to interact with the Applicant because the Applicant would not acknowledge him at all. He stated that when the Applicant spoke with E, “it often became heated”. He also stated that there were times when the Applicant would not speak to other supervisors on the dock, T and N, and that the Applicant “was constantly hot and cold as to who he would speak to” (R5, para [23]). J described another incident on 14 May 2020. A driver reported to J that as he was entering the premises, “[the Applicant] stuck his finger up at him” (R5, para [29]).
J stated that he was present at a 16 January 2020 meeting “during which [the Applicant] became aggressive and quite angry and irate”. An email note made by E of the meeting (R5/J[last initial omitted]-3) records that at a “van meeting” the Applicant asked why he had been taken off “the gold run”. J had stated at the meeting that he was happy to talk about it in private as it did not have anything to do with others in the meeting. The Applicant insisted on talking about it straight away, and E stepped in and stated that it sounded like the issue could be discussed outside of the meeting. The email from E records the following:
He was aggressive saying that nothing ever got done, the place is a joke. At this point I tried to calm [the Applicant], he didn’t calm down, I then addressed the rest of the group stating that if they didn’t have anything to add they were free to leave.
I followed [the Applicant] out of the lunch room as I needed to be sure he was right to go on the road, but also to challenge his behaviour. He turned around to me and said it was bullshit and just f*** off.
He continued to walk off I was behind him, heading in the same direction, [the Applicant] got to the key locker to get keys and duty board … I asked him not use that language with me, I asked what exactly is going on.
He replied with it has nothing to do with me, I said yes it does as ultimately the facility is my responsibility.
I asked if it was about Supers being on the dock, he was confused, saying I don’t know anything, I asked him to tell me.
Just went on to say it was bullshit I always take their side, I don’t listen, I don’t do anything, the place is bullshit, his voice was raised and he was quite angry and irate.
I explained that if I don’t know about something I can’t fix it, at this point he was mumbling under his breath as he walked away.
Quite an intimidating confrontation.
J described further issues that he had experienced with the Applicant (R5, paras [25]-[28]):
On or around 11 February 2020, I said hello to [the Applicant] as I went down to the dock to help him unload his van. [the Applicant] completely ignored me but spoke to two of the other supervisors on the dock.
On 21 February 2020, I reported a particularly concerning incident when [the Applicant] walked past me in the dock and eyeballed me and started going off and verbally abusing me. This behaviour prompted me to express concerns to [R] as to whether [the Applicant] should continue to be allowed on the premises.
Annexed to my statement and marked J-4 [initial omitted] are my email to [R] dated 21 February 2020 and a later email that I sent to the HR on 24 February 2020 providing further detail regarding the incident.
I am aware that [the Applicant] underwent counselling in relation to the incident on 21 February 2020. I did not sit in on the meeting, as I felt it would be unhelpful given [the Applicant’s] attitude towards me.
The email at J-4 provided further details about this incident. In summary, J reported that the Applicant asked him, “what is your problem?”, and that he responded by saying, “what do you mean?”. J stated that the Applicant’s voice was raised and aggressive and that he was angry and talking fast. J stated to the Applicant that the Applicant would not even say hello to him and so asked why he would want to talk to him now and abuse him by swearing. J alleged that the Applicant told him that he was a liar and was not worthy of his position as a manager. He further reported that the Applicant said he had no respect for J and so why should he say hello to him. J reported saying that he always said hello to the Applicant, but that the Applicant ignored him. He reported that as the Applicant walked away, he looked back and said “your [sic] all bullshit” and to “fuck off”. J reported feeling threatened and targeted due to the Applicant’s aggressive demeanour.
5 March 2024 supplementary statement
In this supplementary statement, J responded to some of the statements made by the Applicant in his supplementary statement dated 25 November 2022.
J did not agree that there were constant delays. He also did not agree that drivers were missing their lunch due to delays. He said that if drivers returned late from runs, they were sent on their lunch break whilst other team members helped to unload the truck (R6, paras [5]-[7]).
J also did not agree with the Applicant’s statement regarding the throwing of packages and damaging of goods. He stated that if he or the other dock managers witnessed such behaviour, the persons would have been instantly reprimanded. He stated that “[the Applicant] frequently complained about the work ethic of his colleagues”, and that he had explained to the Applicant “that different people work at different paces, and some will not be as quick as himself”. J stated that the Applicant mentioned that he previously ran a business, and that if this had been his business he would have “fired everybody” (R6, paras [8]-[11]).
He agreed that during peak times, such as the Christmas period, the dock experienced a higher workload and that additional casual workers would be hired. He explained that it could be a lengthy process to recruit and train additional workers who had to go through a medical screening and an induction and training process. Therefore, although the managers did their best to acquire and train casual staff, at times there were increased workloads (R6, paras [13]-[15]).
J said that he “did consider [the Applicant] to be hard-working” but that the issue was the way in which he interacted with his colleagues and managers which placed considerable strain on the workplace. He commented that if the Applicant helped the van drivers to unload, it would have been appreciated and that it was common for the dock staff to assist van drivers to unload if they needed help (R6, paras [16]-[17]).
J gave further evidence regarding the forklift ticket issue. He explained:
I do not recall the circumstances regarding [the Applicant’s] forklift ticket during the application for Dock Marshall. I am unsure as to whether [the Applicant] stated he had a valid forklift ticket, or whether he stated his forklift ticket must be renewed.
However, when [the Applicant] presented me with his forklift ticket, I noticed that the expiry period has elapsed time was too great to allow for a renewal. This meant that [the Applicant] would have to re-sit his forklift ticket, as though it were a new license. At the time, there were sufficient staff on the Dock with a valid forklift ticket, and as such, there was no operational need for Australia Post to pay for the renewal of [the Applicant’s] forklift ticket. I would have explained this to [the Applicant], had he raised this with me.
The nature of the Dock means that it would be impossible to run it without an adequate number of licence holders, as there is constantly work that needs to be done by forklift. I therefore do not anticipate that there would have been times when [the Applicant] was doing dock work by himself and there was no one else around licensed to drive a forklift.
As far as I am aware, Australia Post at no time undertook to pay for a member of staff’s forklift ticket that had expired, including [the Applicant], in circumstances where there was no operational need to do so.
I disagree with [the Applicant’s] allegation of favouritism with regards to Australia Post’s payment of forklift ticket fees. With regards to… [K] …, I recall that his forklift ticket had merely elapsed and had not expired unlike [the Applicant’s]. I disagree with [the Applicant’s] assertion that I engaged in preferential treatment with other employees.

In response to the issues the Applicant said he had with F and D, J recalled that the Applicant originally had a good relationship with them, but at some point, the relationship changed. J was unsure what caused this. J stated that at the time he took detailed notes about complaints from employees in the dock. He stated that he had reviewed his notes and found no complaints relating to the three men. J strongly denied that at any time S “hit and threatened” the Applicant in front of him. J said that if he did it “would have been recorded and referred to upper management”. He also denied that he had “circle people”. J stated that, “I treat all employees that I managed equally and with respect and do my utmost to address any concerns that they raise with me” (R6, paras [24]-[29]).
J did recall offering the Applicant a promotion to a full-time role, but not to a supervisor role because he already had two supervisors, N and T (R6, paras [30]-[31]).
J also commented on the statements that the Applicant made about him, and stated that he had tried to make accommodations for the Applicant (R6/paras [32]-[35]):
I recall that [the Applicant] was unhappy working on the Dock. As a result, I made offers and accommodations to move him to a Van Driver position where I thought he would be happier.
Throughout this period, I attempted to make accommodations to ensure [the Applicant] would be more content in his position.
I disagree with [the Applicant’s] assertion that I resented his relationship with the other drivers. [The Applicant] was a hard worker, and this was appreciated by other employees (in particular the Van Drivers). As my role is to ensure that the Van Drivers role is being performed efficiently and harmoniously, there is no reason why I would resent a positive relationship with the Van Drivers.
Furthermore, I disagree with [the Applicant’s] allegations that I picked on him. [the Applicant] would routinely not greet fellow colleagues or return “hello’s” as he encountered them. I understood that as a supervisor I would not always be popular with some employees, but still made an effort to greet [the Applicant] whenever I encountered him. I considered this politeness and disagree with [the Applicant’s] assertion that this was bullying or unfair treatment.
J did not directly recall the circumstances that led to the off-site meeting at the Noranda Park shopping centre on 18 September 2019. However, J said he believed that the meeting prompted him to contact a different branch to try to arrange for the Applicant to be transferred (R6, paras [36]-[37]).
He also did not directly recall the events of the Toolbox meeting on 16 January 2020. He said that at that time he was the Van manager and E was the Facility manager. He stated that generally Toolbox discussions where for issues affecting all employees and that individual issues were better suited to a private conversation (R6/38)-[41]).
J stated that he had “limited recollection” of “this event”, which I infer was the “what do you know” conversation he had with the Applicant after the incident where the Applicant allegedly failed to collect parcels. J stated:
… I categorically deny colluding with … [K] … in order to “frame” [the Applicant].
I recall the meeting with [the Applicant] on 21 February 2020, but not specifically what was discussed.
I recall Mr [the Applicant] being angry upon his return to the dock. At the time, I was regularly on the Dock and assisted with the unloading of vans when required.
I remember approaching [the Applicant] and enquiring as to whether everything was ok, and to ask why he was not speaking to me.
I recall that when CCTV of the incident was reviewed, [the Applicant] was in fact being aggressive to me, and was yelling, pointing, and waving his hands.
This was reflected in my complaint regarding this incident.
This was [the Applicant’s] last day in the facility.
On several occasions, [the Applicant] mentioned his prior workers compensation claims against previous employers.
I believe that I went above and beyond to ensure [the Applicant] was satisfied in his role at Australia Post.
Evidence at the hearing
My impression of J was that he was an honest witness who gave evidence to the best of his recollection. If he could not recall facts or circumstances, he said so. He appeared to me to be objective. He did not embellish his evidence to support a particular narrative. None of the evidence he gave during cross-examination was inconsistent with his statements (transcript/170-181). I note that J denied that K was his girlfriend (transcript/177).
THE APPLICANT’S TERRITORY MANAGER, R
5 March 2024 statement
R made a statement dated 5 March 2024 (R7) and gave evidence at the hearing.
R is a Territory Manager. He stated that prior to the Applicant engaging in mandatory counselling in approximately January 2020, he had limited involvement with the Applicant’s day-to-day workplace activities. He did state, however, that the Applicant would see him at times to discuss issues he was having with his colleagues and managers. R stated (R7):
In these conversations, [the Applicant] shared general grievances relating to his perception that “others don’t work as hard as I do”, directed at both his colleagues and direct managers. [The Applicant] had a general belief that lazy colleagues should be dealt with by supervisors, and if they weren’t then the supervisors should not be in that role. Although I asked for more specific details in these conversations, [the Applicant] did not provide them. [The Applicant] made no formal complaints regarding others, nor did he seek my advice or instruction on how to lodge a formal complaint. I would have provided him with any such advice or instruction if he had requested it.
R stated that he was aware that concerns were expressed to human resources by E and J in May 2019 and April 2019. R attached a copy of an email exchange between E and human resources. By way of summary, I note that the complaints involved the Applicant ignoring E and on other occasions becoming aggressive because he was not happy with everyone else’s work ethic and that he felt he was not being listened to and that the place was not being run properly by supervisors (R [last initial omitted]-1).
R also referred to an email from E (referred to at para [131] above) concerning the Applicant’s behaviour the Toolbox meeting on 16 January 2020 (R-2). The Applicant’s behaviour towards E and J at this meeting resulted in the Applicant being sent a letter dated 22 January 2020 requiring him to attend a “formal counselling discussion” (R-3). The formal counselling interview occurred on 30 January 2020. The record of the interview records the Applicant being frustrated and that he felt no one else was addressed over saying the f-word. It records that the Applicant’s behaviour of challenging supervisors and inappropriate behaviour towards them was discussed. It records that the only action to be taken was that if the Applicant was frustrated, to reach out to T who was committed to being open and honest with the Applicant, and if there were no changes that the Applicant would reach out to E (R-5).
R referred to correspondence concerning another incident on 14 February 2020, where K made a formal complaint about the Applicant ignoring her request to take some parcels to a delivery centre. K’s email stated that on 14 February 2020, she asked the Applicant to take some parcels to another Depot. She stated that she was standing “a cage and a half” away from him and that she called to him and asked him to take the parcels but that he walked straight past her. K stated there was “no way” he did not hear because she asked him twice. K stated in her email that she had to ask another staff member to take the parcels (PB-6).
R also addressed another incident involving the Applicant that occurred on 21 February 2020. R stated (R7, para [13]):
On 21 February 2020 at around 6:19 pm, I received an email from Mr [J], a Van Services Manager, regarding the behaviour of [the Applicant]. [J] stated that at approximately 5:55 pm, [the Applicant] had “eyeballed” him and proceeded to verbally abuse him. [J] stated that [the Applicant] accused him of being “a liar …not worthy of his position” and as he walked off, stated “your all bullshit” and “fuck off”. [J] stated that [the Applicant] was so agitated his speech was at times in audible. [J] raised concerns regarding [the Applicant] remaining on the premises after threatening him and making others uncomfortable. [J] sought my advice on how to proceed.
R explained that he recommended the Applicant be suspended with pay pending a violence assessment. This was because the Applicant had previously been subject to formal counselling for inappropriate behaviour. R was also concerned that J felt the Applicant’s language and aggressiveness was at a higher level than previously and that J was concerned about his personal safety. That is, R was concerned that the Applicant’s behaviour might be escalating. R explained that on 24 February 2020, he discussed the incident with the HR Advisor who wanted to obtain further information from J. R stated that J provided that additional information on 24 February 2020. R said that it was then agreed between himself and the HR Advisor that the Applicant should be sent home on full pay. That was because there were potential safety concerns if the Applicant remained in the workplace. R also said that he was concerned about the Applicant’s mental health and that despite previous counselling his behaviour was escalating. He said that he was concerned about the safety of others and about the Applicant’s wellbeing (R7, paras [14]-[19]).
R stated that on 24 February 2020 he met with the Applicant at the start of his shift to tell him that he was directed home with full pay, pending the outcome of internal investigations. R described the Applicant as becoming agitated and as likening his situation to that of another worker who had assaulted a colleague:
In this meeting [the Applicant] appeared very agitated, and began to make allegations about the reasons he was so frustrated. Such reasons included perceived favouritism, lack of work ethic displayed by his fellow colleagues and the poor management of these people. Although I had previously had similar conversations with [the Applicant] prior to this, his level of agitation was particularly high during this meeting.
During this meeting, [the Applicant] was unwilling to accept any issues with his behaviour, instead laying the blame with his colleagues and managers.
Worryingly, [the Applicant] likened his situation to that of [B] …, a former driver who had assaulted a colleague who he perceived as having a poor work ethic. [B] was terminated by Australia Post following this incident.
[The Applicant] stated to me that he had not slept for several days and was attending counselling.
I understood [the Applicant’s] reference to having attended counselling to refer to him attending a counsellor recommended by his GP.
[The Applicant] stated that he was no threat to others but appeared excepting of the direction to remain home. I did, however, remain concerned regarding [the Applicant’s] presence in the workplace. Based on [the Applicant] believing his behaviour was justified and his general agitation, my concern was still that [the Applicant] presented a safety issue to others and was not in a fit condition to attend work.
R also described a fitness for duty assessment being arranged for the Applicant with a psychiatrist Dr Olivia Lee. Dr Lee’s report was the report referred to by the Applicant in his supplementary statement as not having been given to him. R said that a copy was provided to the Applicant. R explained that although Dr Lee’s report recommended moving the Applicant to another facility, it was agreed between himself and the HR Advisor that this might not be possible. They had recently transferred a different driver to the facility in question because he had been assaulted at work. The Applicant had previously expressed the view that the driver was lazy and that it was his fault he had been assaulted. R and the HR Advisor decided that the most appropriate approach was to have another discussion with the Applicant, to encourage him to access EAP [Employee Assistance Program] Assist advice and to remind him of Australia Post’s behavioural expectations. They also decided R would raise the possibility of transfer with the Applicant in case it became possible when further inquiries were made (R7, para [28]-[34]).
A meeting was organised on 15 April 2020 to have that discussion. R’s recollection of that meeting was as follows:
On 15 April 2020, I met with [the Applicant]. During this meeting, [the Applicant] was on edge and emotional. He expressed that he had been unable to sleep still and continued to decline responsibility and instead blamed others.
[The Applicant] stated he was going to see his own counsellor, following the sessions he had accessed through his EAP.
[The Applicant] showed me a skin rash he had developed.
We discussed [the Applicant] transferring to a different location, which [the Applicant] refused. Again, he mentioned the employee who had been assaulted by a fellow colleague. Worryingly, [the Applicant] stated that although he was not a criminal “even a cornered animal will attack”. He further stated that it is his right to be angry and voice his opinion and refused to accept that staring and yelling “this is going to get ugly” at his supervisors was threatening or inappropriate.
During this discussion, [the Applicant] was emotional and volatile, at times he was unable to speak for more than ten minutes. [the Applicant] declined to have someone present for the discussion, as “there was no point”.
When asked what I could assist with in terms of next steps, [the Applicant] stated “you do what you want. I had respect for you but now it’s like talking to a brick wall, next time I want to record this discussion.”
This interaction led me to again question whether [the Applicant] was fit for work within the Australia Post organisation at all, regardless of the location. I advised [the Applicant] that he was required to stay at home pending further consideration.
R explained the steps he took after this meeting including providing an outline to the HR Advisor, who sought advice from the HR Case Manager. The advice was to seek a further report from Dr Lee and that the Applicant should remain home on full pay for the time being (R7, para [42]-[44]).
R stated that on 8 May 2020, he met with the HR Business Partner, HR Advisor and the HR Case Manager to discuss the Applicant. R stated (R7, paras [45]-[53]):
… It was agreed that [the HR Business Partner] and I would meet with [the Applicant] again and discuss relocation. We agreed that if [the Applicant] cooperated, a plan would be an acted to return him to work at a different location (in potentially a different role). If he was not willing to cooperate, he would be directed home until he provided evidence of fitness to work.
[The HR Business Partner] and I met with [the Applicant] on 15 May 2020. [The Applicant] advised he was taking medication for depression and was still not doing well. He further advised he had been to three counselling session and had been discussing his mental health concerns with his worker’s compensation doctor. We encouraged [the Applicant] to discuss this with his treating doctor.
[The Applicant] advised that he was still not fit to return to work. [The Applicant] explained that the doctor he was seeing had recommended that he return to work, but [the Applicant] disagreed with his recommendation. We again recommended that he discuss this with his treating doctor. When I asked if this refusal to return to work included a transfer to another facility, [the Applicant] restated that he was not “right to return to work”.
We discussed next steps and advised that Australia Post would need to review this matter and he may be required to take personal leave. [The Applicant] did not respond.
I encouraged [the Applicant] to bring a support person to our next meeting. [The Applicant] declined but advised he would like to record the next meeting. We advised that Australia Post does not permit meetings to be recorded.
Following our meeting, it was reported that [the Applicant] had shown his middle finger to a colleague in the car park of the facility.
[The HR Business Partner] and I both agreed that [the Applicant’s] mental and physical presentation in this meeting made it clear that he would be unable to return to work at this time. This seemed consistent with [the Applicant’s] view that he was unfit to return to work. I did explain to [the Applicant] that should he become ready to return to work, we would look to support him by finding a role that would suit him and support him with this. If we had been satisfied that [the Applicant’s] health had improved, and he was not a risk to others, we would have taken the appropriate steps to return him to the workplace. Unfortunately, this was not the case.
R further stated that on 19 May 2020 he sent the Applicant a letter which referred to the discussion and the Applicant’s statement that he was not fit to return to work. The letter asked for a medical certificate so that the Applicant’s absence could be processed as sick leave (RB-16).
R stated that the medical certificate the Applicant provided was dated 2 June 2020 and certified him as unfit to work due to depression. The medical certificate which was attached to R’s statement (R-17) stated a date of injury as 24 February 2020 and stated under the heading, “What happened?”:
He was distressed and upset after been accused by his boss Miss [E] who accused him that he didn’t pick up the parcel from [suburb name omitted] branch and she send him home and have time to investigate the case.
With respect to the “Worker’s symptoms”, the medical certificate stated: “He reported that he has low mood, depression, poor sleep, poor self steam [sic] and anxiety” (as original.)
Evidence at the hearing
My impressions concerning R were like my impressions of J. I found him to be an honest and straightforward witness. He answered the questions put to him directly and succinctly (transcript/182-192). I found him to be a credible witness.
CONCLUSIONS BASED ON THE EVIDENCE
For the reasons outlined above, I prefer the evidence of J and R to the evidence of the Applicant. As is evident from the examples that I gave from the Applicant’s evidence above, I did not find his evidence to be reliable and it seemed to be affected by a desire to defend his position. It also tended to suggest and support the Respondent’s submission that the Applicant has maladaptive personality traits, as referred to by Dr Terace.
For completeness, I find that the evidence of Dr Terace should be preferred over the evidence of Dr Ng. Dr Terace’s evidence was, in my view, more objective. For example, when provided with further statements from J and V, Dr Ng’s report dated 6 September 2023 did not show any evidence that he considered those reports and he simply stated that this additional information did not change his opinion without providing any reasons (A2/7-9). On the other hand, Dr Terace engaged with the contents of the material and was willing to change his diagnosis after considering it. My findings about the Applicant’s evidence, and my preference for Dr Terace’s evidence, supports a conclusion that the problems are not in others, but are rather as the result of maladaptive personality characteristics which are inherent and constitutional in nature, and were therefore not contributed to, to a significant degree, by the Applicant’s employment with Australia Post.
That conclusion is also supported by a consideration of the factors in s 5B(2) of the SRC Act:
·The duration of the employment (s 5B(2)(a)): The Applicant commenced employment with Australia Post in April 2018, and he physically left work in February 2020. The duration of the Applicant’s employment does not seem to be relevant to the issue of causation.
·The nature of, and tasks involved in, the employment (s 5B(2)(b)): The Applicant worked as a part-time Dock Marshal, and also as a Van Driver. That role involved “organising the loading Dock so that it functioned efficiently for the receiving and dispatch of various parcels” (A1/6, para [3]). He would help to unload parcels and also worked as a driver where he drove a van to collect parcels. The duties and hours worked performing those duties were not alleged to have caused the Applicant’s psychological ailment. Rather, the Applicant’s complaints were about alleged bullying and harassment by Australia Post, and so this factor does not assist with the issue of causation.
·Any predisposition of the employee to the ailment or aggravation (s 5B(2)(c)): Dr Terace, whose evidence I prefer, commented on this in his report dated 21 February 2022. In answer to the question, “Do you consider that [the Applicant] would have developed any psychiatric condition/s regardless of his employment with Australia Post?”, Dr Terace stated that if the Applicant was not mistreated, he would experience issues regardless of the workplace he was in:
This means that, if the allegations made by [the Applicant] that he was mistreated in the past and present are not correct, and if his perception of mistreatment and his internal experience of events and outward speech and behaviour is a consequence of his own personality dysfunction, then it probably would not matter as to any particular work and non-work-related setting that he may have found himself in. This is because the presence of such personality-dysfunction would probably signify that his psychiatric symptoms would probably arise regardless of setting.
·Any activities of the employee not related to the employment (s 5B(2)(d)): The issues that resulted in a workers’ compensation claim with the Applicant’s previous employer add further weight to the opinion given by Dr Terace that the Applicant would have issues regardless of the setting (or workplace). In that workplace the Applicant made similar allegations of vilification and his co-workers conspiring against him to manufacture allegations against him. This supports a finding that the Applicant’s psychological ailment was not contributed to, to a significant degree, by his employment at Australia Post.
·Any other matters affecting the employee’s health (s 5B(2)(e)): Dr Terace stated that if the evidence did not support the Applicant’s version of events, there was a likelihood of “Pre-existing personality factors”, specifically the Applicant’s “inherent constitutional and pre-existing personality-factors which are maladaptive in nature” (R3/30). Those inherent maladaptive personality characteristics also support a finding that the Applicant’s psychological ailment was not contributed to, to a significant degree, by his employment at Australia Post.

Based on the factors in s 5B(2), and my findings concerning the evidence in the preceding sections of these reasons, I find that the Applicant’s psychological ailment was not contributed to, to a significant degree, by his employment at Australia Post. Rather, it was most likely the result of the inherent maladaptive personality characteristics identified by Dr Terace.
DID THE APPLICANT SUFFER FROM AN INCAPACITY FOR WORK AS A RESULT OF HIS “RIGHT KNEE PAIN” FROM 30 JULY 2020 TO 5 AUGUST 2020?
As I mentioned above, the 2020/6519 Reviewable Decision was that Australia Post was not liable to pay compensation in accordance with s 19 of the Act for the Applicant’s absence from employment from 30 July 2020 to 5 August 2020 (R1/110-111) for reasons including that he was absent from work due to a psychological condition.
The Respondent submitted that the Applicant’s psychological ailment, which was not work-caused to the requisite degree, displaced and overtook any lingering incapacity from the knee condition (transcript/268).
That submission is supported by the medical evidence. A letter from the Applicant’s orthopaedic surgeon, Dr Toby Leys dated 30 July 2020 stated that the Applicant was six-weeks post-surgery and was “progressing well with his knee”. It reports “some minor discomfort” and “excellent range of movement today” (R2/93).
A Workers Compensation Progress certificate of incapacity (Medical Certificate) from Dr Sadler dated 31 July 2020 stated a diagnosis of “knee pain-ongoing, post surgery progressing well” and “depressed mood”. It states: “other factors appear to be impacting recovery and return to work”. It certifies some capacity for work from 31 July 2020 to 28 August 2020 with capacity to lift up to 10 kilograms and to “avoid prolonged standing/ repetitive squatting” (R2/94-95).
A Medical Certificate dated 17 June 2020 from Dr Salihee states a diagnosis of “work related depression / post traumatic stress syndrome” and that the Applicant had no capacity for work from 16 June 2020 to 1 July 2020 (R1/31-32).
Another Medical Certificate dated 1 July 2020 certified the Applicant as having no capacity for work from 1 July 2020 to 31 July 2020 for “work related depression / post traumatic stress syndrome” and states “still feeling depressed, low mood … anxious and chest tightness” (R1/37-38).
On 14 July 2020, a workplace rehabilitation provider stated that the Applicant was unfit for work as a postal transport officer – van with the injury details of “mental stress”. The report noted “decreased physical capacity following surgery for right knee 18.06.2020” but the focus of the report, and the incapacity was due to the psychological condition (R1/T10).
Another medical certificate dated 31 July 2020 certified the Applicant as being unfit for work from 31 July 2020 to 31 August 2020 due to “work related depression / post traumatic stress syndrome” and stated, “still feeling depressed, low mood … anxious and chest tightness, night mare, headache” (R1/64-65).
I find, based on this medical evidence, that the Applicant did have some capacity for work due to his knee and that the reason that he was absent from work was due to his psychological ailment, which I have found above was not work-caused to the requisite extent.
CONCLUSION
For the reasons outlined above, I have found that:
·the Applicant’s psychological ailment was not contributed to, to a significant degree, by his employment at Australia Post; and
·His incapacity for work for periods including 30 July 2020 to 5 August 2020 related to his non-compensable psychological ailment, and not his right knee pain condition.
DECISION
The Reviewable Decision in application 2020/6518 is affirmed.
The Reviewable Decision in application 2020/6519 is affirmed.

179. I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...................[Sgd]....................................
Associate
Dated: 9 May 2024

Dates of hearing:

26, 27 and 28 March 2024

Representative for the Applicant:
Mr K Wong of Soul Legal

Counsel for the Respondent: Mr P G Woulfe, Blackburn Chambers instructed by Ms A Danti, Moray & Agnew Lawyers

Dates of hearing:	26, 27 and 28 March 2024
Representative for the Applicant:	Mr K Wong of Soul Legal
Counsel for the Respondent:	Mr P G Woulfe, Blackburn Chambers instructed by Ms A Danti, Moray & Agnew Lawyers