VCI and Telstra Corporation Limited
[2006] AATA 912
•26 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 912
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/734
GENERAL ADMINISTRATIVE DIVISION
Re: VCI
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:26 October 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Costs have not been sought. The Tribunal determines that each party bear its own costs.
(sgd) E.A. Shanahan
Member
COMPENSATION – Rely on Workers’ Compensation – retrenchment – what if any is the nature of the disease – employment contribution – disciplinary action following threats to employer at the time of retrenchment.
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975 s 35 and 36
Hart v Comcare (2005) 87 ALD 341
Schmid v Comcare (2003) 77 ALD 782
Re Boyd and Australian Industry Development Corporation (1988) 15 ALD 796
Australian Industry Development Corporation v Boyd (1990) 95 ALR 149
Re Vo and Comcare (2005) AATA 773
ReRamalingam and Comcare [2004] AATA 385
Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
REASONS FOR DECISION
26 October 2006 Miss E.A. Shanahan, Member
1. This decision and reasons for decision is subject to a s 35 of the Administrative Appeals Tribunal Act 1975 (the Act) confidentiality order, based on the advice of the applicant’s treating doctor. The order prohibits publication of the names of the applicant and his immediate family and his date of birth.
2. This is an application for a review of a decision of a delegate of the respondent dated 26 May 2004 (T16) affirming the initial determination of 3 May 2004 (T12) rejecting the applicant’s claim for an injury described as depression, anxiety, agitation and loss of concentration arising from his retrenchment on 11 June 2003 in particular and due to his former manager’s outrageous behaviour towards him (T12 p154).
3. Initially the applicant was legally represented; but his lawyers withdrew their representation on 25 July 2005. The applicant thereafter was self-represented. The respondent was represented by Mr A. Moulds of counsel, instructed by Frenkel Partners. The Tribunal had before it the documents lodged pursuant to s 37 of the Act (the T ‑documents). The parties tendered the following documents A1 – A9 and R1 – R8:
A1Applicant’s diary entries;
A2Telstra abstracts on workplace stress;
A3Applicant’s statement re cause of psychological condition dated 28 November 2005;
A4Email correspondence between applicant and R. Seit;
A5Letter from P. Kelly dated 16 September 2003;
A6Professor Tan’s Report dated 8 September 2004 (put in by Respondent as Exhibit R2);
A7Dr Greenberg’s Report dated 22 August 2005;
A8Dr Greenberg’s Report dated 8 July 2003;
A9Dr Greenberg’s Report dated 25 August 2003;
R1Letter from Dr P. Andrianakis;
R2Report of Associate Professor E.S. Tan dated 8 September 2004;
R3Letter to Mr J. Pentney as modified with Dr Greenberg’s notes dated 14 June 2003;
R4QA and Testing Group Summary;
R5Performance Review by Mr Greig Bannister of Ms Marcy Faith;
R6The Applicant’s Melbourne University MIB Course Results for 2003 and 2004;
R7Section 37 Documents (T‑documents); and
R8Dr Mendelson’s Report dated 19 April 2005.
Background to the Application
4. The applicant commenced work with the respondent in February, 2000 as a Technical Specialist having completed a Bachelor of Information Systems at Melbourne University in 1999. Following an internal Telstra re-organisation or restructuring decision to reduce and eventually close the applicant’s specific area, the applicant was retrenched on the 11 June 2003. Nationwide some 300 of 2000 technical officers were retrenched and in the applicant’s immediate area of employment some 20 persons were retrenched. Those workers to be retrenched in the applicant’s area of employment were given appointments for meetings on 10th and 11th June 2003. These meetings were conducted by Mr Miled Abdulnour, Group Manager of the Test and Implementation Management Team and Mr Shane Burbidge of the Human Resources Department. These meetings were conducted in accordance with established Telstra protocol.
5. The applicant, having been informed of his retrenchment, became particularly distressed and accused interviewers of conducting an execution type of meeting that could provoke persons to respond by buying a gun. These statements were perceived as a direct threat, particularly when the applicant repeated these comments to other Telstra employees following the meeting. These perceived threats were reported to the Telstra Human Relations Managers at State and National levels, who in turn reported the threats to the police. On the same day the police attended the applicant’s home. The applicant was not at home. The police spoke to his elderly parents who found their attendance distressing. The applicant’s entry pass to all Telstra sites was revoked.
6. The applicant became increasingly distressed and on 19 June 2003 consulted his general practitioner. He was referred to a psychiatrist, Dr Yvonne Greenberg; and then to Associate Professor Eng-Seong Tan. Dr Greenberg made this referral on the basis that Associate Professor Tan spoke Mandarin and was acquainted with the Chinese personality, mores and standards. While Dr Greenberg did not make a diagnosis and perceived the applicant to be emotionally unstable, Associate Professor Tan diagnosed an adjustment disorder and recommended counselling and medication. Associate Professor Tan attributed the adjustment disorder to the applicant’s retrenchment. The applicant was resistant, that is opposed, to treatment and eventually there was a falling out between the applicant and Associate Professor Tan with Associate Professor Tan refusing to see or treat him after 8 December 2004.
7. At the request of Telstra the applicant has been seen by the psychiatrist Dr N Lewis and Associate Professor G Mendelson, who agree that the applicant has had an emotional response to his retrenchment. But they have not found any underlying psychiatric disorder. Dr Greenberg has accepted Associate Professor Tan’s diagnosis of an adjustment disorder.
8. Following the perceived threat to the Telstra staff on 11 June 2003 Mr Abdulnour and Mr Burbridge were provided with security surveillance and the applicant was investigated with respect to a breach of conduct. By consent, on or about 28 August 2003 a settlement was reached and the applicant accepted the redundancy package offered, with effective cessation of employment on 1 September 2003. As a result the ongoing investigation of the breach of conduct and the imposition of any disciplinary measures was terminated. A redundancy package offered on 11 June 2003 had included the option of ceasing work within 7 days with an additional payment of $4,500 or remaining a Telstra employee for a period of 6 weeks while undertaking a Telstra funded and provided program for re‑employment. It would appear the applicant opted for the latter arrangement.
9. On 23 January 2004 the applicant lodged a claim for rehabilitation and compensation (T4) in relation to a psychological condition; and on 3 May 2004 the respondent issued a determination denying liability to pay compensation. The applicant requested a reconsideration of the determination and on 26 May 2004 the respondent affirmed the decision (T16).
10. On 25 June 2005 the applicant filed an application for review of the decision with the Administrative Appeals Tribunal (AAT) (T1). The applicant claimed his psychological condition had been materially contributed to by his employment with the respondent and specifically the incident on 11 June 2003 when he was informed that his position was redundant.
11. The applicant has not undertaken any employment since his redundancy but did enrol for a Masters in International Business at Melbourne University prior to his redundancy and undertook such study in the second half of 2003 and the first semester of 2004.
12. The issues before the Tribunal are:
· What, if any, is the disease or injury suffered by the applicant?
· Has his employment contributed to the development of this disease?
· Has his retrenchment contributed to this disease, if present?
·Has the breach of conduct investigation with possible sanction, contributed to the disease?
EVIDENCE BEFORE THE TRIBUNAL
13. As previously stated, the applicant was self-represented and on the first day of the hearing, 15 December 2005, in his opening comments he based his claim primarily on harassment in the workplace by his Team Leader, Ms Marcella Faith, over a period of six to nine months prior to his retrenchment. This harassment had led to his response and the perceived threat to Telstra officers at the meeting of 11 June 2003 when he was informed of his retrenchment. As this claim differs substantially from that outlined by his former solicitors in the Statement of Issues dated 31 May 2005 and had not previously been conveyed to the respondent, the Tribunal adjourned the hearing to allow the respondent to assess the claim.
14. The hearing resumed on 27 March 2005 and continued on 28 March 2006 and then 16, 17 and 18 August 2006.
The Applicant
15. Throughout the five days of the hearing the applicant was emotionally distressed, argumentative and on several occasions hyperventilated to the extent that he developed carpo-pedal spasm resulting in paresis of his hands due to a claw like muscular spasm. While his feet were not visible to the Tribunal, he stated he could not stand or walk. These effects wore off reasonably quickly once he responded at the Tribunal’s advice.
16. At the resumed hearing on 27 March 2006 the applicant confirmed the basis of his claim and was then cross examined by Mr Moulds. The applicant relied primarily on exhibits A1 to A5 and particularly on those he termed Workplace Stress (Exhibit A2) that included five case studies alleged to demonstrate his level of expertise, his loyalty to Telstra and the harassment he had suffered at the hands of Ms Faith; and extracts from his diary (Exhibit A1) dated 11 June 2003 to 27 November 2003.
17. The applicant referred to case study 4 in particular, where he had been asked by Ms Louise Keir, Project Manager, to work on what he described as a failed project that had cost Telstra millions of dollars and years of effort. The applicant refuted Mr Moulds’ suggestion that this was part of applicant’s his normal job. The applicant said he had worked long hours on this project despite being sick and had done so because of his Chinese background, as Chinese people are primarily loyal to their employer and the state. Mr Moulds queried whether the applicant was saying he had been subject to racial discrimination. The applicant believed this was part of the reason he had been retrenched. The applicant admitted that despite his claim of being sick he had not seen a doctor as this was not part of his Chinese culture.
18. The applicant agreed with Mr Moulds that Ms Keir had commended him for his efforts regarding the 510 Router configurations (Exhibit A2). He was subsequently asked by Ms Keir to work on the 837 Project. Despite still being sick, the applicant agreed to do so in order to save Telstra’s reputation (transcript p37). Given that external customers (termed Vendors) and Ms Keir were happy with his work, the applicant said that he felt deceived (transcript p38) when he was retrenched. He had felt deceived because his immediate manager had assured this technical group at weekly team meetings in March, April, May and June of 2003 that they were safe because they were so busy. The applicant said Ms Faith had spoken with management and despite a proposed Telstra wide re-organisation, the Technical Team were safe from retrenchment (transcript pp40-41). Earlier, the applicant had denied any knowledge of a re‑organisation of Telstra departments (transcript p40).
19. The applicant agreed with Mr Moulds that he had spoken with Ms Faith on the morning of 11 June 2003 regarding the purpose of the meeting later that day. He claimed she said she was unaware of the meeting’s agenda. He denied that Ms Faith had said my guess is that it would be bad news (transcript p44) The applicant had been informed of the time of the meeting with Mr Abdulnour by Ms Prior, who in her statement said she told him she did not know the agenda for the meeting. The applicant had refused to attend, as he was too busy, unless he was provided with an agenda. He said he was then telephoned by Mr Abdulnour and told that the meeting was to discuss his future role in Telstra. The applicant said he interpreted this to mean that he was to be assigned new projects. He denied that he had any prior knowledge that he would be retrenched. The applicant insisted that Ms Faith would have had prior knowledge of any planned retrenchments and should have spoken with him (transcript p51).
20. Mr Moulds questioned the applicant about the letter he wrote to Mr J.Petney dated 14 June 2003 (T8, p60), wherein he expressed his privilege and enjoyment in working for Telstra but did not mention any workplace harassment. The applicant said that the letter dated 14 June 2003 was a first draft, subsequently modified by his psychiatrist, Dr Greenberg, his general practitioner, Dr Andrianakis, and proof read by his psychiatrist Associate Professor Tan, all of whom he saw later than 14 June 2003. He said they had advised him to be less confrontational. The applicant said the letter was sent on 4 August 2003 (transcript p54), although still dated 14 June 2003.
21. The applicant agreed that he perceived himself as being a small individual who had been crushed, mistreated and persecuted by Telstra (transcript p64). He said he had been unaware of documentation relating to his work performance until he received a copy of the T‑documents from the Tribunal in August 2005. The T‑documents had previously been sent to his solicitors, who ceased acting on his behalf in July 2005. Having read the T‑documents, he regarded the statements of Telstra employees as defamatory or slanders (transcript p65) as he disagreed with Ms Faith’s assessment of his work performance in early 2003. The applicant insisted that all his annual performance reviews had been fully satisfactory which was superior to satisfactory (transcript p67).
22. The applicant had been acting Team Manager for a period of five weeks in mid-2002, while his Acting Manager was on leave and his usual Manager, Ms Faith, was on maternity leave. The applicant attributed his appointment to this position to be due to his competence, commitment to work …because management trusted me …I’m a responsible person (transcript p68). Ms Faith in her written report (T9 p95) had acknowledged that in this period things appeared to be normal (transcript p69) Ms Faith also reported (T9 p95) that the applicant’s performance review of June 2002 had been an average assessment, but not outstanding. The applicant said he regarded the use of the word average as an attempt to put him down (transcript p69).
23. The applicant agreed with Mr Moulds that he received a pay rise in June 2002 as did all University Graduates and that he was pleased with the rise despite Ms Faith’s comment that he was disappointed with the amount (T9 p95). The applicant said his tolerance of Ms Faith’s criticisms was part of his Chinese culture. Ms Faith had noted that the applicant was putting in a lot of hours at work and seemed to spend a large amount of time attending personal issues such as body corporate matters for his home and family issues with immigration (T9 p95). The applicant admitted to spending week-ends assisting with his sister’s application for a travel visa to Australia and subsequent appeals (on two occasions) to the Department of Immigration but insisted these had been completed in September of 2001. The applicant on further questioning agreed that his sister’s visa application was finalised in April 2002.
24. Mr Moulds further questioned the applicant regarding his niece’s arrival in Australia in May 2003, to stay with his parents and himself, and his sister’s subsequent arrival in May on a three-month tourist visa. The applicant said he had no part in organising his niece’s migration to Australia as she was given permanent residency on the basis of her step-mother’s application as a Skilled Migrant. The applicant had intended to show her (his sister) around Australia (transcript p79); but as a result of his retrenchment and his distress he recommended she return to China earlier than planned. On 18 July 2003 he was involved in a motor vehicle accident while driving his sister to the airport. The applicant said that he had not been involved in his sister’s immigration matters for a period of two years; and that he had never been involved in the case of his niece.
25. Mr Mould suggested that the applicant had been chastised in January 2003 for using his company provided mobile telephone excessively and mostly for personal calls. The applicant’s mobile telephone bills were of the order of $400 per month. Ms Faith had said in her statement (T9 p95) that the normal monthly charge for employees’ mobile telephones was of the order of $20 to $50. The applicant denied that there were any Telstra guidelines for how much these telephones could be used for personal calls and claimed that all Telstra personnel used their company provided landlines and mobiles for unlimited personal use. The applicant agreed that he reduced his mobile telephone usage after January 2003. Ms Faith’s statement (T9 p95) said this was reduced to a level of $50 per month.
26. The applicant maintained that he had done more work than any other member of his team and had submitted more test reports than any other team member to Ms Faith. As number of reports is king (transcript p92) this had contributed to Ms Faith receiving a performance bonus under the Management Incentive Program. The applicant perceived Ms Faith’s complaint regarding his mobile telephone use and his poor work output excuses to pick on me (transcript p94). The applicant agreed he used his mobile telephone for personal calls and he attended the work place after hours to access the internet for personal use. He said he had been granted 24-hour access to the Telstra Exhibition St office for self development. He had been provided with two computers, one linked to the Telstra Intranet and the other to the Internet. The latter was password protected and only accessible by him.
27. The applicant said that he came into the Exhibition Street office after hours seven days per week for self development and to conduct research. He did not expand on the nature of these two activities but where he perceived it to be work related he claimed overtime payments (transcript p101).
28. In her statement (T9 p94) Ms Faith had pointed out that the applicant was not required by Telstra to work such out of time hours. In cross-examination the applicant dismissed this criticism on the basis that Ms Faith left at 5.00 or 5.30 pm and she doesn’t care about Telstra (transcript p103).
29. The applicant had claimed he discovered a fatal error on testing the 510 Router and recommended that no documentation be released until he was satisfied with his testing. The 510 Router had already been released to customers. He said that Ms Faith instructed him to release the technical documentation and he refused. (Tribunal Note: The exact role of the technical testing is outlined in Ms Faith’s evidence). The applicant said that all these 510 Routers were eventually recalled. Mr Moulds pointed out that it was the applicant’s job to test such products for faults and that he had been asked to do nothing more than what was required by his job. The applicant disagreed.
30. The applicant claimed he had been asked to complete the 510 Router testing in five days but it took him eight weeks as he discovered more faults. (Tribunal Note: It is not clear to the Tribunal if this is the case as the five day limit appears to be set for the 837 Project and at the time of giving this evidence the applicant was emotionally distressed and incoherent (transcript p112). The applicant, on further questioning, identified the first fatal error to be in the software tabulation, the second in the hardware (510 Router) and the third with the network that is, the network would not support the device being tested. Ms Faith had instructed him to release the documentation (which would include the description of the faults) but he refused to sign off on the technical testing result. The applicant agreed that solving the network problem was not in his area of work (transcript p116). Those 510 Routers already released to a small number of companies were recalled and replaced.
31. The applicant agreed with Mr Moulds that he had been commended by the Project Manager, Ms Keir, for the work done on 510 Routers. However, he insisted that what he had done was far beyond his role as a quality assurance tester.
32. The applicant denied that his work performance in the latter part of 2002 deteriorated and as a result attracted his poor report of January 2003, as at all times he got a fully satisfactory performance review (transcript p119). Mr Moulds informed the applicant that after the January 2003 performance review, which included discussion regarding his excessive mobile telephone usage and out of hours use of the internet at work, Ms Faith had discussed his performance with Mr Greig Bannister. A management performance review was considered but not proceeded with as the applicant’s performance improved after the review of January 2003. The applicant said he was surprised to hear of the later report. The Tribunal asked the applicant if he believed that Ms Faith’s comments on his report had been concocted – Are you saying she made it all up. To which he replied Yes (transcript p122). The applicant could not remember Ms Faith suggesting that he had a better business than technical aptitude, and that he should consider the former role within Telstra. He denied any memory of the conversation that was put to him by Mr Moulds, and pointed out that he had qualified in Sales Marketing in China and attended TAFE in Victoria before completing his degree in Information Systems at the University of Melbourne and also that he was the top student in all three courses.
33. The applicant was asked if Ms Faith had suggested he spent too much time at 242 Exhibition Street when his duties were in Barry Street, Carlton. Again the applicant replied that she made it up (transcript p124).
34. Mr Moulds questioned the applicant about his claim that his mobile telephone was faulty (Case Study 2 of Exhibit A2). The fault related to a battery pressure deficiency. The applicant had been advised to insert half a business card into the battery holder which appeared to work on the mobile telephones of Ms Faith and Mr Bannister, who had experienced similar problems. The applicant said that this solution worked for two days and once more his mobile telephone started dropping out. He requested a new mobile telephone and insisted that Ms Faith had refused to provide a new one. The applicant claimed Ms Faith had accused him of lying regarding his malfunctioning mobile telephone (transcript p129).
35. The applicant was of the opinion that he and Ms Faith had different ways of working and solving problems. He himself had always pursued the truth and in the past had frequently challenged his University of Melbourne lecturers, for which he said he was praised (transcript p135). The applicant disagreed with Ms Faith’s appraisal of his methods of technical testing and his abilities in this field; and he believed that Ms Faith held those views because she hated him (transcript p135) and because she had personality problems (transcript p135). Despite their disagreement as to how things should be done and the criticisms she had made of his work in the January 2003 work performance assessment, he had suggested a compromise and that they move on (T9 p119). The applicant denied the situation had improved after his offer of a compromise.
36. The applicant said he was extremely embarrassed when, despite Ms Keir’s direction by email on 16 May 2003, he was unable to do the necessary preparatory work before seeing the vendor of Cisco Project 837 on 19 May 2003. He claimed Ms Keir had approved his access to the Carlton laboratory on the week-end of 14 and 15 May 2003 to do such work. He said Ms Faith had refused him access to the Carlton laboratory. The Tribunal notes that Ms Keir’s email was sent from Sydney at 5.17 pm on 16 May 2003, a Friday night, and the meeting with the vendors took place on Monday morning, 19 May 2003.
37. The applicant claimed the reason he did not want to undertake this project was because he was sick and not because of his sister’s pending arrival from China for a three-month stay.
38. The cross-examination then turned to the reasons for the applicant’s sister’s travel visa application, his niece’s migration as the step-daughter of a Skilled Migrant, the niece’s arrival in mid-May to stay with the applicant and his parents and shortly thereafter the arrival of her biological mother. He said his retrenchment had curtailed his sister’s stay in Australia and impacted greatly on the family reunion. The applicant said his sister had returned to China in July 2003 following his retrenchment; and that she returned to Australia in 2005 as a permanent resident. Her permanent residency was approved as her only child was a permanent resident in Australia. The applicant said his sister now lives in Flemington and her daughter in Sydney.
39. Mr Moulds pointed out to the applicant he could not have been aware of Ms Faith’s doubts regarding his work performance until he received a copy of the T‑documents in August 2005. The applicant disagreed and referred the Tribunal to his email dated 28 February 2003, where he suggested that his differences with Ms Faith had not been resolved (transcript p165).
40. Mr Moulds asked the applicant why he waited until 19 June 2003 to consult Dr P. Andrianakis, given the level of his emotional distress after the retrenchment interview of 11 June 2003. The applicant said he had to wait that length of time for an appointment as he particularly wanted to see Dr Andrianakis, as Dr Andrianakis was an academic (PhD ‑ The University of Melbourne) and also bulk billed Medicare for all patient services. Mr Moulds pointed out that despite having attended this medical clinic since March 2000, he had only seen Dr Andrianakis once prior to 19 June 2003, namely on 20 November 2000, on which date he had asked Dr Andrianakis to write a letter to Centrelink on his behalf. The applicant said this letter related to his eligibility for Austudy in 1999 when he had not fulfilled the requirement of being a full time student. The applicant refused initially to reveal the medical condition that had prevented him from pursuing full time studies but eventually stated that he had been depressed, or as he termed it, unhappy. The cause of his depression/unhappiness was the poor result he obtained for a final year project. He had lodged a complaint with the Faculty of Science regarding his results and eventually the matter was rectified by the Dean of the Faculty of Science (transcript p182) and he was assigned a High Distinction. A letter provided by Dr Andrianakis some 11 months after the applicant had finished his degree enabled him to be reimbursed for the Austudy payments cancelled in 1999.
41. The applicant agreed that he had been diagnosed with Irritable Bowel Syndrome in 1998 after a medical incident had occurred while holidaying in China in the summer of 1997 and 1998. Professor F McCrae had performed various investigations following the applicant’s return to Australia in early 1998, continued to treat him for a few years and had explained to him that the condition was caused by a nervous disorder in the large bowel. The applicant said Professor McCrae advised him to manage my stress (transcript p188).
42. The applicant agreed with Mr Moulds that on 19 June 2003 he showed Dr Andrianakis a letter he had received from Mr Petney, the respondent’s General Manager of Human Resources, advising him of his unacceptable behaviour on 11 June 2003, confirming the proposed retrenchment advised on 11 June 2003 and the applicant’s suspension from employment while the investigation was underway (T8 p56). Dr Andrianakis had immediately referred the applicant to Dr Greenberg, Psychiatrist, and the applicant agreed that the reasons for the referral were …Anger. Behaviour to bad news (transcript p 189 and Exhibit R1).
43. The applicant said he did not see Dr Andrianakis again until after he was involved in a motor vehicle accident on 22 July 2003. He had seen Dr Greenberg earlier in July; and at his request, she had referred him to Associate Professor Tan. The applicant said Dr Greenberg had recommended referral to Professor Cheung, but as Professor Cheung did not speak Mandarin he (Professor Cheung) had recommended Associate Professor Tan. Dr Greenberg had then provided the necessary referral to Associate Professor Tan.
44. Associate Professor Tan had provided counselling on a two to four-weekly basis between 17 July 2003 and May 2005. The applicant said that Associate Professor Tan had also recommended medication but he had refused to take it. Associate Professor Tan had encouraged him to pursue the Masters of International Business degree. The applicant said he had enrolled for this degree in May 2003, prior to his retrenchment, and planned to study one subject per semester. At the end of his first semester the applicant said he failed to sit the examination because he was sick and Associate Professor Tan had signed the request for special consideration that enabled him to sit a supplementary exam in January 2004. He achieved a mark of 52 for the subject International Business Strategy. In addition to counselling with Associate Professor Tan, the applicant said he also availed himself of counselling service via The University of Melbourne Disability Students Service counsellor (transcript p203).
45. The applicant said he never told Associate Professor Tan of his workplace problems as his mind was solely focused on the events of 11 June 2003. Mr Moulds read part of Associate Professor Tan’s assessment which had been sent to the applicant. This stated that you were suffering from a severe adjustment disorder arising from what you perceived as unfair treatment at the hands of your employer Telstra (transcript p205). The applicant denied he had a problem with retrenchment and that all the doctors had misinterpreted the history he had given them. He insisted his concern was not with the actual retrenchment but with the unfair process of the retrenchment (transcript p208).
46. The applicant agreed that Dr Greenberg and Associate Professor Tan had advised him to put the retrenchment behind him and pursue a new career. The applicant said he last saw Associate Professor Tan in April 2005. Associate Professor Tan had cancelled an appointment for May 2005 and discharged him from his care, after the applicant had quoted Associate Professor Tan without his permission, in a letter he sent to Centrelink and other parties (transcript p269).
47. The applicant saw Associate Professor G Mendelson at Telstra’s request on 18 April 2005 and Dr Mendelson provided a report dated 19 April 2005 (Exhibit R8). During the course of this consultation the applicant had, while emotionally disturbed, hyperventilated to a degree where he developed carpopedal spasm (Tribunal Note: as he did on at least three occasions during this hearing). Associate Professor Mendelson had commenced the well-known emergency treatment for this condition by attempting to have the applicant re-breathe into a plastic bag in order to return his blood carbon dioxide levels to normal and reverse the muscle spasm. The applicant recalled this event vividly and said he did not understand what Associate Professor Mendelson was doing and resisted the treatment as he believed the absence of oxygen in the plastic bag could kill him (transcript p287). Associate Professor Mendelson had called an ambulance. The applicant said he told Associate Professor Mendelson he did not need an ambulance as he had experienced these symptoms before and knew they would wear off in time. When the ambulance officers arrived he fell to the floor and they then dragged him from Associate Professor Mendelson’s consulting room. When he resisted, he claims they pushed him to the floor bruised his arm and broke the frame of his spectacles. Associate Professor Mendelson then asked the ambulance officers to desist and the applicant said he walked out of the consulting room by himself, sat on the concrete staircase outside Associate Professor Mendelson’s consulting rooms and fell asleep.
48. He was awakened by two policewomen brandishing a gun with the ambulance officers standing in the background (transcript p286). His bag was searched by the police officers and eventually he left by himself in a taxi. He went directly to the Accident and Emergency Department at St Vincent’s Hospital. He said Associate Professor Tan was informed of his attendance. The applicant then went home. He admitted that he subsequently complained to the Metropolitan Ambulance Service regarding the ambulance officers’ behaviour, to the Medical Board of Victoria regarding Dr Mendelson’s conduct of the consultation, and to the Health Services Commissioner and to the Police Department in relation to the police officers’ actions. To his knowledge all his complaints had been investigated and no improper conduct or unprofessional behaviour had been found (transcript p292). (Tribunal Note: The applicant had provided the Tribunal with the correspondence between himself and these bodies but requested that the respondent not be given access to these reports. The Tribunal acceded to his request as the reports were not directly relevant to the issues before the Tribunal).
49. The applicant’s document termed Workplace Stress (Exhibit A2) referred to Case Study One and the Psychological Training Session. Case Study One related to an episode when the applicant attended the Exhibition Street Telstra Office in response to a request by the new graduate (presumably Mr Nasar) to be shown how to use the new ADSL equipment. The applicant attended in his lunch hour and stated in this document that Ms Faith had accosted him and asked What are you doing here, who told you to come here? …it’s manager’s role to show new graduate how to use those equipment as part of introduction session. The applicant said he was totally shocked after I received such an unexpected criticism from my manager. In cross-examination he confirmed these events and described Ms Faith’s reaction as a very angry response (transcript p215).
50. The applicant had stated at Exhibit A2 that he had attended a psychological training session in February 2003 and contrary to Ms Faith’s statement (T 9 p97) he had not refused to take part and left the session. Having challenged the psychologist’s opinions and thereby embarrassed him, the applicant said he left as he regarded the session as a waste of time. He regarded Ms Faith’s comment in her statement as …another evident that Ms Marcy Faith would use every opportunity to ruin my good name and reputation. (Tribunal Note: The Tribunal notes that the psychologist is said to have reported his concerns regarding the applicant’s mental health to Mr Greig Bannister after the session).
51. Mr Moulds pointed out that nowhere in the applicant’s diary (Exhibit A1) was there mention of Ms Faith (transcript p210).
52. The applicant agreed with Mr Moulds that he had spoken with Ms Faith on the morning of 11 June 2003, regarding the purpose of the meeting with Mr Abdulnour and Mr Burbridge arranged for that afternoon. He claimed that Ms Faith was unaware of the meeting agenda and denied that she had told him my guess it will be bad news (transcript p 44). The applicant had been informed of the meeting by Ms Cathy Prior who told him she did not know the reason for the meeting but had arranged for Mr Abdulnour to telephone the applicant. According to the applicant Mr Abdulnour informed him that the meeting was to discuss his future role in Telstra and this he interpreted it to mean that he was to be assigned new projects. His retrenchment thus came as a surprise despite his knowledge of other employees being retrenched on 10 June 2003. He insisted that Ms Faith would have had prior knowledge of any planned retrenchments.
53. The applicant said Mr Abdulnour told him at the beginning of the meeting that, …your position is no longer required by Telstra (transcript p57). The applicant asked why, to which Mr Abdulnour replied He doesn’t know why. The applicant repeated this question several times and in the end Mr Abdulnour said …don’t ask me. Go ask the CEO, Ziggy. Ask him. It’s his decision (transcript p58). The applicant agreed that he had become very upset at the meeting particularly as Mr Abdulnour had no knowledge of his work or the projects he had been involved in. He insisted however that it was not the retrenchment that upset him but rather that he had been lied to by Ms Faith, Ms Prior and Mr Abdulnour as to the purpose of the meeting. When told there were no options to his retrenchment or, as he allegedly reported, avenues for appeal against the decision, he replied there were numerous options including getting a gun. The applicant said he made this remark as he had seen a television news item about an American citizen who following his dismissal from work obtained an AK47 rifle and shot several co-workers and his employers. The applicant insisted that this was an option and as it was only an option it did not mean he would adopt it. Based on the same reasoning, he had refused to withdraw the perceived threat to Mr Abdulnour and Mr Burbridge, when telephoned by Mr Bannister later on 11 June 2003. He denied that in his conversation with Ms Prior he said he would find out where Mr Abdulnour and Mr Burbridge lived and sort them out with a gun (T8 p 25). The applicant accused Ms Prior of being a liar (transcript p 273) and that her reporting of their conversation to Mr Bannister was an effort to curry favour.
54. The applicant claimed that Telstra’s normal process for retrenchment meetings was to have the individual’s Line Manager (in his case, Ms Faith) present at the meeting. Had Ms Faith been present she would have known and been able to tell the others of the project he worked on. The applicant agreed he had said he was capable of performing more senior jobs than he had been assigned but denied he said I can do Ziggy’s job. (Tribunal Note: this reference is to the then CEO of Telstra) (transcript p250). The applicant said Mr Abdulnour and Mr Burbridge had made up this statement (transcript p 250). The applicant could not recall that he was told that his retrenchment was part of a Telstra wide cost cutting process (transcript p252), but a few moments later said he was told it was a company restructuring (transcript p 253).
55. While claiming that Mr Abdulnour and Mr Burbridge had said that there were no right to appeal Telstra Management’s decision and as the applicant put it there were no options he recalled he had been given a big thick document (transcript p256) and was told it contained all the information regarding retrenchments. He said he left these documents on his desk on 11 June and as he had never returned to the work place, he had not been able to read them. He agreed that Mr Abdulnour or Mr Burbridge had suggested that if he had any queries regarding his retrenchment, he should email these queries to Mr Burbridge (transcript p270). As the applicant was not connected to the internet on either his 386 or 486 home computer and his entry pass to all Telstra buildings had been cancelled, he was unable to email Mr Burbridge. The applicant obtained a new computer and accessed the internet early in 2006.
56. The applicant said he had contacted the Industrial Relations Commission late in 2003 or early 2004 after he learnt of the Commission via the internet. He did so as he still regarded his retrenchment as unfair but was told any claim would be out of time (transcript p260). Mr Petney, the General Manager of Human Resources, had informed him in late August 2003 that he could have availed himself of an internal Telstra appeal process (transcript p261).
57. Following the retrenchment meeting the applicant agreed he had spoken with Mr Bannister. He stated Mr Bannister asked him if he knew where the Westgate Bridge was and then said You know, every year there is a lot of people jump off there, you know… (transcript p275). The applicant agreed Mr Bannister telephoned him at approximately 6.00pm on 11 June asking him to give an assurance that he would not carry out his threats to Mr Abdulnour and Mr Burbridge. The applicant said I assured him that it would be very unlikely for me to do anything silly (transcript p276) but he did not withdraw his statement as it was only a theoretical option. In retrospect he regretted what he had said but claimed psychologically something happened in my mind at the time that was beyond my control (transcript p 278).
58. On the evening on 11 June 2003 the applicant had a meal with his then girlfriend following which they went for a drive in the Dandenong Ranges. He went back to 242 Exhibition Street (Telstra Office) at approximately 11.00pm and was refused entry. He went home to be greeted by his mother with the news that three armed policemen had came to my home, they force into my home, my niece was screaming upstairs, she was shocked and my mum urinate to the floor (transcript p283). The police had left a telephone number to contact a Mr Waters but he was not available when the applicant telephoned him at 11.05pm. Further attempts to contact Mr Waters failed but eventually the applicant spoke with Mr Waters who apologised for the events of 11 June 2003.
59. Following the applicant’s cross-examination on 16 August 2006 the respondent was given leave to recall the applicant for further cross-examination should it be necessary after the evidence of Ms Faith and other Telstra personnel had been heard.
Mr Greg Bannister
60. Mr Bannister was formerly the National Manager of the QA Testing Group. He was retrenched on 10 June 2003 after 32 years service with Telstra. Mr Bannister provided a chart of the QA Testing Group structure and personnel (Exhibit R4) and a draft of his performance review of Ms Faith from January to June 2001 (Exhibit R5). Mr Bannister recalled that Ms Faith had approached him in January 2003 in regard to aspects of the applicant’s work performance. The first of these being that when asked to perform a task he failed to respond despite reminders and the second being his excessive mobile telephone accounts. Further action on these issues was abandoned when the applicant’s performance started to improve after his January performance review.
61. Mr Bannister said he was telephoned by Ms Prior or Mr Abdulnour at approximately 4.00pm on 11 June 2003 and was told that the applicant had threatened to shoot the interviewers at their homes. He had reported this to the Human Resources Department and later telephoned the applicant at the Carlton laboratory to try to persuade him to retract what he had said. The applicant refused to do so. The Human Resources Department then contacted the police. On 13 June Mr Bannister, in the company of Mr Frank Gerdtz, had met the applicant in a day‑long meeting. Mr Bannister described the applicant as being extremely upset that he had been made redundant. At no time had the applicant mentioned Ms Faith in any capacity.
62. In cross-examination the applicant asked Mr Bannister if he was thought of as a problem maker or was not doing his job properly. Mr Bannister did not think the applicant was a trouble maker but believed he could have done his job better up until about six months before the redundancy. In the preceding two years he said the applicant’s performance was average and in Mr Bannister’s opinion inferior to that of his colleagues.
63. Mr Bannister was unable to recall the exact content of his telephone conversation without referral to his statement of 7 August 2003 (T8 p48); nor did he recall referring to the Westgate Bridge as a popular suicide site (transcript p350).
64. Mr Bannister confirmed that the number of reports issued from the Appliance Group was relevant to Ms Faith’s performance review and any bonus she might receive.
65. Mr Moulds had Mr Bannister confirm the QA Testing Group structure (Exhibit R4), that Ms Faith’s performance review of October 2001 was representative of her work performance over many years (Exhibit R5) and Mr Bannister’s statement of 7 August 2003 (T8 p48).
The Applicant
66. The applicant was recalled for a short time to clarify the number of subjects he was undertaking at The University of Melbourne as part of his Masters Degree in International Business. He had enrolled for two subjects in the last semester of 2003, withdrew from Managing Across Borders and passed International Business Strategy in a special examination in January 2004, which was credited to 2003 (52 marks ). In the first semester of 2004 he studied Managing Across Borders and passed (50 marks). In the second semester he studied International Finance in which he achieved a 2A Honour (Exhibit R6). In accordance with the rule in Browne v Dunne (1893) 6 R 67, Mr Moulds also informed the applicant of what Ms Faith would say in evidence and in particular that she would deny ever telling the technical group that their jobs were safe. The applicant replied she telling lie again (transcript p386) and later she is a bloody liar (transcript p375).
Ms Catherine Prior
67. Ms Prior was a Business Manager at 242 Exhibition Street in 2003 and remains in that position. Mr Abdulnour had directed her to arrange interviews with nominated employees on 10 and 11 June 2003. Although she had not been officially told the nature or intent of these interviews she knew what they would concern. Ms Prior confirmed that the applicant telephoned her on 11 June 2003 saying he would not attend unless provided with the agenda for the meeting. She recommended he speak with Mr Abdulnour.
68. Following the meeting of 11 June 2003, the applicant had spoken to Ms Prior and said something about getting a gun, something about finding where they live, something about getting them. She had said You don’t really mean that to which the applicant had replied Yes I do mean that (transcript p378).
69. Ms Prior said she became increasingly worried that the threats may be carried out and therefore reported the conversation to Mr Bannister. Mr Bannister directed Ms Prior and other staff to leave the floor (Level 30) and go to Level 32 and wait. After Mr Bannister had spoken by telephone with the applicant, Ms Prior was sent home. In cross-examination Ms Prior confirmed that she did not know the agenda of the meeting on 2003 but had assumed it related to retrenchment notification as some of her friends had been retrenched the day before. Ms Prior said her conversation with the applicant had been overheard by Ms Maronella Lewisy, to whom the applicant had also spoken in a similar vein.
Mr Miled Abdulnour
70. Mr Abdulnour was the Manager of the Amalgamated QA Section and the Implementation Group retitled the Testing and Implementation Group. He was appointed in early June 2003. He is currently the Manager of the Transport Ethernet Group at Telstra. As a result of the amalgamation, some of the projects worked on by the QA Group were ceased and 12 to 15 per cent of the members of the technology staff were retrenched. In total this was some 2000 employees across Australia. Some of these staff members were re-deployed in Telstra after undertaking a six week training program. The process followed was to first identify positions to be made redundant and then in conjunction with Human Resources and external psychologists interview those to be retrenched. Ms Prior had been given the task of making the necessary appointments and if any of the interviewees made enquiries these were to be directed to Mr Abdulnour (transcript p394). Mr Abdulnour confirmed he telephoned the applicant on 11 June 2003 and told him the meeting was to do with his future both in and outside Telstra (transcript p395). A script had been devised by the Human Resources to provide consistency in the conduct of the meetings. The first step in the script was to explain the reason for the companies re‑organisation, then tell the employees that a number of positions had been made redundant, including their own, and lastly to describe the options available to the individual. This script had been followed in relation to the applicant.
71. Mr Abdulnour described the applicant’s response as emotional (transcript p 395) and irrational (transcript p396). The applicant had claimed he was capable of doing higher level positions and doing Ziggy’s job (transcript p396). Mr Abdulnour said he described the process of the re-organisation and provided the applicant with documentation regarding his options, namely a redundancy package plus $4,500.00 if he left within seven days or a six week paid Telstra Job Search Program. If the later was unsuccessful the employee was able to take the offered redundancy package. During the meeting the applicant described it …as taking the shape of an execution style and that this sort of meeting is what sort of makes people go out, get guns and shoot people (transcript p398).
72. At the end of the meeting the applicant was told he could contact Mr Abdulnour or Mr Burbridge for further information or to clarify any matter. Following Mr Bannister’s failed effort to have the applicant withdraw his statement concerning the gun the Human Resources Group had contacted the Police. Mr Abdulnour was telephoned by a staff member who informed him that the applicant had told several others that I know where those two live and I will get them (transcript p398). Mr Abdulnour was interviewed by the police on the evening of 11 June and Telstra provided a private security company to guard his home for approximately two weeks. Mr Abdulnour said he had no further contact with the applicant.
73. In cross-examination Mr Abdulnour could not recall being asked by the applicant what projects he had been working on although he had been provided with a work resource profile. Mr Abdulnour said the internal re-organisation affecting the applicant had been afoot for a couple of months before members of the staff were retrenched. Mr Abdulnour denied that the applicant had enquired about the available appeal processes and informed the Tribunal that all appeal processes are published on the Telstra Intranet. He also denied he had directed the applicant to ask Ziggy why he had been retrenched (transcript p406) or that he or Mr Burbridge had said there was no appeal process open to the applicant, as these were contained in the documentation given to the applicant.
74. Mr Abdulnour said that he had not informed Ms Faith that the applicant was to be retrenched but as Mr Bannister was aware of the persons nominated he may have told Ms Faith. The applicant pointed to the various projects in which he had been involved as delineated in Exhibit A2 and how he had saved Telstra’s reputation in the Router 510 Project. Mr Abdulnour was not aware of this project and re‑iterated Telstra had determined that some technical projects were no longer of importance in the overall future plan.
Mr Shane Burbridge
75. Mr Burbridge has been a Human Resources Adviser with Telstra for approximately 20 years and took part in the applicant’s retrenchment interview on 11 June 2003. Mr Burbridge said that he and Mr Abdulnour had taken a telephone call from the applicant prior to the meeting. The applicant was seeking an agenda for the meeting and was told it concerned your employment within and outside the company. At the meeting Mr Abdulnour ran through the provided script as they did with all interviewees. Initially, the applicant was calm but at times became agitated and irrational and asked questions such as Why me? My performance is good, I can do other jobs, I could do Ziggy’s job (transcript p432). Mr Abdulnour had tried to explain the decision did not relate to performance but to a redundant position. Despite this, the applicant had continued to ask who had made the decision.
76. Mr Burbridge explained the options available to all employees on redundancy.
77. Mr Burbridge recalled the applicant’s statement that the meeting was an execution style meeting which caused people to start using guns, bring in guns and start shooting people.
78. At the close of the meeting the applicant was told to email Mr Burbridge with questions or concerns he had. Mr Burbridge took the applicant to meet the psychologist hired by the respondent to counsel those who had been retrenched. Mr Burbridge had then attended a debriefing session with his Manager, Mr Gerdtz, during which Ms Prior reported the comments made to her by the applicant. Mr Burbridge was interviewed by the police and was also provided with security at his home for approximately 10 days.
79. In cross-examination Mr Burbridge was unable to recall Mr Abdulnour making any reference to Ziggy; that the applicant said he wanted to appeal the decision or that he himself had said there was no process. He did recall the applicant asking for help, describing the meeting as being execution style and saying that these types of meetings make people want to get a gun and shoot people. While Mr Burbridge was aware that Mr Petney had conducted an investigation into the applicant’s behaviour at the meeting, he was unaware of the outcome and could not recall speaking to Mr Petney regarding the events. Mr Burbridge had made a statement that he sent to Mr Gerdtz (T8 p47).
80. Mr Moulds asked Mr Burbridge what appeal process would have been available to the applicant. Mr Burbridge explained that as the applicant was an AWA Employee he did not have access to redundancy agreement but did have access to Telstra’s fair treatment process which was an internal resolution process.
Ms Marcella Faith
81. Ms Faith has worked for Telstra for 15 years and in June 2003 was the applicant’s Line Supervisor. At that time she was Manager of the Appliances Group in the QA Testing Team with a staff of five, including herself. Ms Faith identified Exhibit R4 outlining the structure of this group as being correct. She also gave her permission for Mr Bannister’s performance review of herself in the year 2001 to be tendered (Exhibit R5).
82. Ms Faith agreed she had been on maternity leave until October 2002. On her return, she noted that the applicant, despite having worked on his current project for four months, did not have a grasp of the technical issues and was not working to an expected technical level (transcript p458). In January 2003 the applicant’s six‑monthly performance review was conducted. The result of this review was contained in Ms Faith’s statement of 22 March 2004 (T9 p96). After the review the applicant’s performance improved.
83. Mr Moulds dealt with the applicant’s case studies contained in Exhibit A2. Ms Faith said she had spoken previously to the applicant about the need for him to spend more time at the Carlton laboratory in order to improve his technical skills. Hence her criticism of him attending 242 Exhibition Street to assist a colleague. With respect to Case Study Two and the applicant’s faulty mobile telephone, Ms Faith said that this had been frustrating for her and the applicant; and she like Mr Bannister had fixed her mobile telephone by bolstering the battery connection with a business card. A request to Mr Bannister for a new telephone for the applicant had been refused.
84. Ms Faith did not understand what the applicant’s statement that number of report is king management approach meant. She said the QA Testing Teams job was to test to a level that Telstra’s customers could be assured that the equipment would work with Telstra products. Once the testing had been performed it was up to the individual Project Manager to release the product. Ms Faith said the applicant had produced fewer reports than other members of the team despite the team having more time to release reports than other areas in the company. Ms Faith considered the request she made of the applicant with respect of his output was reasonable. The procedure followed was to identify faults in the equipment being tested and advise the Project Manager of the faults. However, the Testing Group did endeavour to assist the vendor to repair any defects before the product was released.
85. With respect to Case Study Three, wherein the applicant discovered what he called a fatal flaw and his refusal to issue the testing report, Ms Faith said the applicant’s conclusion that the product was sub-standard was only his opinion.
86. The Tribunal asked how the system worked. Ms Faith explained that various companies wished to bundle their products with Telstra services, despite being free to sell them on the open market in their own name. Telstra’s technical group would test the product, identify defects, report to the Project Manager and depending on the testing results there may be what is termed a soft release or trial release wherein any faults, which she termed bugs, will become evident and correctable in a three to six month period. The testing staff had no role in such trial releases this being a decision purely for the Project Manager. Ms Faith explained that minor problems or bugs were classified as very low severity errors and did not delay the products by Project Managers.
87. Case Study Four concerned a project named IPDSL. The applicant had claimed that Telstra had invested millions of dollars (originally hundreds of millions of dollars and later stated by the applicant to be six million dollars) and years of effort and that he had been assigned to the project to save Telstra’s reputation and fulfil its legal obligations (transcript p466). Ms Faith identified this project as a small component affecting approximately 1,500 customers. She was of the opinion the applicant over estimated the importance of various projects and his role in the testing. Identification and reporting of faults in tested products was his normal job. Ms Faith could not recall the Router 150 Alcatel ADSL project, however, she did recall the applicant working in close co-operation with Alcatel technology staff and that they had identified faults with the network interaction with the Alcatel Router. This again was a normal part of the applicant’s job. Ms Faith reiterated the QA Team’s function was to test products, identify faults and report to the Project Manager. It was not the role of the QA Team to correct the faults. That was the responsibility of the Vendor/Product Developer. The applicant’s concept that he was mistreated by Ms Faith when she told him to release the testing results was rejected by Ms Faith who considered this was his opinion only.
88. Ms Faith had been informed of the applicant’s retrenchment two or three days before the meeting of 11 June 2003 but was not permitted to disclose this knowledge. On the day the applicant telephoned Ms Faith who was at the zoo (she works part time) and repeatedly asked her what the meeting was about. She told him she did not know but as he persisted with his questioning she finally said my guess is it is not very good news (transcript p472).
89. Ms Faith said she had had no input into the decision to retrench the applicant and categorically denied ever telling the team that there will be no retrenchments in the group (transcript p472). She noted that the CEO of Telstra had made public comments that there would be job losses year on year and staff members had discussed this amongst themselves.
90. In cross-examination the applicant took Ms Faith to each case study. As he vehemently denied that she had ever spoken to him about his need to spend more time in the Carlton laboratory and less at Exhibition Street, he repeatedly asked her when such discussions took place and what benefits he could derive from being at Exhibition Street. Ms Faith said she had spoken to him on this subject at his performance review and many times prior to that. It was not possible for her to know why he attended Exhibition Street or what benefit he derived from doing so. (Tribunal Note: In the course of this exchange it became obvious that the applicant did not have after-hours access to the Carlton laboratory).
91. As Ms Faith had been on maternity leave until October 2002, she said she had no first-hand knowledge of the applicant’s problems with his mobile telephone but was advised of them when she returned to work. The applicant had subsequently complained to Ms Faith about his telephone and claimed she had accused him of lying when he said he was not intentionally cutting off her calls to him. Ms Faith did not recall this conversation.
92. The applicant suggested that the connect IPDSL project was the most important project the Appliance Group was ever involved in. Ms Faith disagreed, saying that the self install program (presumably ADSL) was more important and that the former project would have cost Telstra hundreds of thousands of dollars not millions.
93. Ms Faith could not recall the details of the applicant’s discovery of the second fatal error discovery relating to Alcatel project. Ms Faith agreed that the so called fatal error was a core network problem identified by the applicant and resolved by a team including the Senior Network Architect, the Senior Project Manager and the applicant.
94. The applicant asked Ms Faith numerous questions regarding the fourth fatal error; but his question was constructed in such a manner that the only possible answer was no I don’t recall (transcript p490).
95. Ms Faith provided the information that week-end access to the Carlton laboratory had never been granted. The building was alarmed and in order to gain access out of hours laboratory security staff had to be present. Only the laboratory manager could provide access.
96. Ms Faith was able to recall the meeting on Monday 19 May 2003 with Cisco representatives and that they had asked to look at the Alcatel’s 510 Router configuration. The Tribunal queried the ethics in allowing Cisco to access Alcatel’s scientific data. Ms Faith advised that this was not permitted.
97. The applicant asked Ms Faith if his work performance had been consistent during his three and a half years at Telstra. Ms Faith replied that his performance had been variable, there being periods when he was productive of good work and long stretches of time when he did not produce such good work. The applicant insisted that his performance reviews had always been fully satisfactory and Ms Faith said the term fully satisfactory …Basically means doing his job (transcript p533). Ms Faith agreed that she and the applicant disagreed or had different opinions with respect to the best way to accomplish a task; but she perceived that to be within the scope of a normal working environment (transcript p 534).
Mr Miguel Nasar
98. Mr Nasar commenced working with Telstra in February 2003 as a Graduate Trainee with his first six-month posting to QA Testing. Mr Nasar agreed that it was common knowledge at the time that a re-organisation was occurring and that retrenchments were likely in mid-2003. He denied Ms Faith ever said that their positions were safe.
99. Following Mr Nasar’s evidence, the applicant stated that he wished to call other members of the QA Testing Team to be cross-examined on whether Ms Faith had said they were safe in their jobs. The Tribunal refused this request as on 27 March 2006 the applicant said he did not wish to call any witnesses. Had he subsequently changed his mind, he had had five months to arrange such evidence. Ms Faith’s refutal of this alleged assurance had been known to him since August 2005 when the Tribunal provided him with a copy of the T‑documents.
Mr J. Petney
100. Mr Petney was the General Manager of Human Resources, Telstra Technologies and Telstra Countrywide in 2003 and is now the General Manager of Leadership and Development. Mr Petney had endorsed the reporting of the applicant’s perceived threats on 11 June 2003 to the police, cancelled his access to all Telstra property, suspended him from employment on full pay and had endorsed provision of security to Mr Abdulnour and Mr Burbridge. Mr Petney had also been in charge of the subsequent investigation into the applicant’s probable breach of conduct.
101. The initial sanction imposed was the applicant’s suspension, on full pay. The alternative available to Mr Petney at the time would have been the immediate termination of the applicant’s employment, which may have involved forfeiture of the offered redundancy package. Mr Petney formerly notified the applicant of his suspension on 13 June 2003.
102. An investigation into the events of the retrenchment meeting and subsequent actions of the applicant was undertaken and Mr Abdulnour, Mr Burbridge, Ms Prior and Mr Bannister provided statements. The applicant did not attend any meeting as requested, saying he was too sick until three to four weeks after the event. The applicant had forwarded two letters; one dated 14 June 2003 (T8 p60) and the other 14 August 2003 (T8 p64). Eventually, an agreement was reached with the applicant and his employment ceased on 1 September 2003. This agreement was documented by an email (T8 p73) from Mr Gerdtz to Mr Petney stating:
[VCI] will be retrenched from Telstra as close of business today. The arrangement we have with [VCI] is that the investigation into his alleged misconduct has been withdrawn and the redundancy will proceed…
Arrangements were made for the applicant’s personal property left at Telstra offices to be collected and returned to him. The applicant was not permitted access to any Telstra building.
103. Mr Petney explained that they had ceased the investigation process because the applicant accepted redundancy.
104. The applicant asked Mr Petney why his retrenchment interview had been conducted by two managers he did not know, instead of his Line Manager and National Manager, Mr Bannister. Mr Petney pointed out that Mr Abdulnour was his one-up Manager albeit appointed only 10 days previously and the process required Human Resources personnel (Mr Burbridge) to be present. As a new manager, Mr Abdulnour would seek advice prior to the meeting and would have knowledge of the positions of the employees but not an in-depth knowledge of an individual employee.
105. The applicant put it to Mr Petney that Mr Abdulnour had said at the meeting that he did not know what projects the applicant had been working on. Mr Abdulnour had not been asked to verify this statement when he gave evidence before the Tribunal. The applicant said he relied upon Mr Abdulnour’s statement (T8 p30) wherein Mr Abdulnour said I did not know the applicant at all and had not been given any information about him prior to June 2003. The applicant was informed by Mr Moulds and the Tribunal that this statement did not mean that Mr Abdulnour was unaware of the what projects the QA Team was working on at the time.
106. The applicant asked if it was appropriate for Mr Abdulnour to say, as claimed by the applicant and denied by Mr Abdulnour and Mr Burbridge, that he did not know when the decision to retrench staff was made and also was it appropriate to refer him to the CEO as it was his decision. Mr Petney replied that it was reasonable to make such a statement in relation to the circumstances at the time.
107. Mr Petney said he had two meetings with the applicant in Mr Gerdtz’s presence; but in all he thought that they had met on three occasions. The applicant maintained that they had met twice, the first on 13 June 2003 and the second at the end of August. The applicant claimed he had asked that Mr Gerdtz be present, which Mr Petney denied. Mr Petney had assigned the conduct of the investigation to Mr Gerdtz and thus his presence at any meeting with the applicant would be at Mr Petney’s direction.
108. The applicant referred to a telephone conversation he had had with Mr Gerdtz on 1 September 2003 and posed certain questions which Mr Petney obviously could not answer because he was not a party to the telephone conversation. The applicant contended that he asked Mr Gerdtz to clear his name given that the investigation of his conduct had been abandoned. Mr Petney was not aware of this request and confirmed that he abandoned the investigation without making a final finding as the applicant was no longer a Telstra employee. Although, in his opinion, prior to 1 September 2003, the applicant had made threats and there-by breached the company’s Code of Conduct.
109. The applicant argued that while suspended between 13 June 2003 and 1 September 2003 his personal belongings left at his work site had been packed up without consulting him. Mr Petney was not aware that this had happened; but said that later when the applicant claimed some items to be missing, Telstra had paid him $200.00 to cover these losses. Mr Petney said Telstra has a checklist of company property in order to secure its assets; and would have used this list to separate company from privately owned items on the last day of the applicant’s employment, that is 1 September 2003. What had happened in the interim was unknown to Mr Petney and not directed by him. The applicant had insisted that he had lost 12 text books that were his personal property.
110. The applicant’s continuing cross-examination of events occurring in July and August of 2003 was fore-shortened by the Tribunal, given that the applicant’s stated claim related to workplace harassment prior to 11 June 2003 and the actual retrenchment of 11 June 2003. Mr Moulds strongly objected to the applicant’s attempt to enlarge his claim to cover events after 11 June 2003. The Tribunal upheld Mr Moulds’ objection, given that the applicant had, on 15 December 2005, caused the hearing to be adjourned when he first claimed workplace harassment as a contributory factor to his injury.
111. The applicant asked Mr Petney why the retrenchment process he had observed at the Carlton laboratory involving other workers differed to that he had experienced. Mr Petney disagreed with the presumption behind the question, stating that the process was the same whatever the location.
112. Once more the applicant asked to call witnesses to support this claim and once more the Tribunal drew his attention to pages 21 and 22 of the transcript wherein he said he did not wish to call any witnesses. This further request was denied.
113. Mr Petney agreed with the applicant, that if a manager or other employee of Telstra had made a false allegation against the applicant that would be a potential breach of the Code of Conduct.
114. The Tribunal asked Mr Petney to clarify his earlier statement that he and Mr Gerdtz had reached a settlement with the applicant on 29 August 2003 and, given the use of the word settlement, was there a formal document signed by the parties to the settlement? Mr Petney confirmed that there was such a document.
Documentary Before the Tribunal
115. Both parties relied on the written reports of their respective doctors. Associate Professor Tan, Dr Greenberg and Dr Andrianakis had provided reports relating to their treatment of the applicant. Dr Lewis and Associate Professor Mendelson have provided reports and opinions regarding the applicant on behalf of Telstra.
Dr P. Andrianakis
116. Dr Andrianakis is the applicant’s general practitioner, although he only saw him twice in three years. On 19 June 2003 Dr Andrianakis saw the applicant and immediately referred him to Dr Greenberg, psychiatrist (Exhibit R1). The referral letter stated that the applicant’s symptoms were anger and behaviour to bad news.
Dr Y. Greenberg
117. Dr Greenberg, psychiatrist provided three reports (Exhibits A7, A8 and A9) and the Tribunal was also provided with her modification of the applicant’s letter to Mr Petney (Exhibit R3). Dr Greenberg first saw the applicant in July 2003 and found him to be emotionally disturbed and somewhat irrational. She did not diagnose a psychiatric disorder. She recommended the applicant see a Mandarin speaking psychiatrist (Exhibit A9) and eventually referred him to Associate Professor Tan. The applicant had shown Dr Greenberg a letter he had written to Mr Petney dated 14 June 2003 (Exhibit R2). Dr Greenberg recommended changes to this letter to make it less confrontational and in fact made hand-written changes to the original letter.
118. On 25 August 2003 Dr Greenberg advised Dr Andrianakis that the applicant was now seeing Associate Professor Tan but that he still pops in and out of my office asking various favours (Exhibit A9).
119. Dr Greenberg wrote to the applicant’s general practitioner on 22 August 2005 having seen the applicant earlier in the week. She assessed the applicant as being more settled although she said it was almost impossible to understand what he was talking about because of his level of agitation (Exhibit A9). The applicant had claimed that the letter Dr Greenberg had written in 2003 had been used as evidence to suggest that he was not severely unwell. He said her letter had contributed to or played a significant part in Telstra’s decision denying him income benefits or assistance from Work Cover.
120. She continued, in her letter to the applicant’s general practitioner dated 22 August 2005:
I concluded that he was not psychotic in 2003. Nevertheless his severe anxiety to the point of panic created the situation in which he could not think realistically and was probably or possibly in significant danger.
During the work interview when he was being told he was retrenched [the applicant] allegedly said to one of the managers, do I have to get a gun before you will tell me. His threatening statement was taken at face value and to his mortal shame and embarrassment the community policing squad presented at his home.
For several reasons I thought it might be best if he saw Dr Eng-Seong Tan rather than myself, the main reason was that Eng-Seong would have a better understanding [the applicant’s] cultural background than I do. The other reason was that during those initial weeks when [the applicant] was grossly distressed, he turned up in my office a couple of times without an appointment. The office is isolated and my Secretary felt uneasy about this. The level of [the applicant’s] distress and my diagnostic uncertainty at that stage made me unsure as to whether or not my office was a safe place to see him.
In August 2003, I thought that he was not psychotic but grossly reactively distressed and effected by the circumstances, social and cultural factors probably increased his reaction to the loss of his job.
…
Recently [the applicant] chose to attend the Royal Melbourne Hospital’s Outpatient Service where the assessor presumably found him to be significantly agitated and certified him to the Cade Psychiatric Unit at the Royal Melbourne Hospital. One assessor telephoned my office on the day and told me he had presented and he appeared to be psychotic. The staff prescribed acuphase injections and anti-depressants. He had four injections in total. The day after the certification he was released from hospital…
…Although he is better than he was I believe he is still traumatised. To use Professor Tan’s clinical diagnosis of an adjustment disorder is reasonable but [the applicant’s] suffering or impairment is even at this stage much more severe than the problems that are usually encountered in cases of adjustment disorder.
I urged [the applicant] to continue to see Dr Tan. I once again said to him that he has lots of strengths and skills and it would probably still be in his best interest to try and put this terrible event down to “experience” and acknowledge that Telstra is probably or possibly not deliberately trying to hurt him. The quicker he finds an alternative career the better for all concerned. Unfortunately [the applicant] is still finding it hard to accept such ideas or to think in that way.
Associate Professor E-S. Tan - Report Date 8 September 2004 (Exhibit R2)
121. Associate Professor Tan first saw the applicant on 31 July 2003 when he presented in a state of extreme emotional distress having been made redundant on 11 June 2003. The applicant had great difficulty in accepting this decision as he had worked hard and there had been no complaints about the quality of his work. The applicant told Associate Professor Tan he had been made to clear out his desk and to stop work on the day. Associate Professor Tan obtained the history of the police visiting the applicant’s home on the evening of 11 June 2003 and the motor vehicle accident on the way to the airport on 21 July 2003. (Tribunal Note: Associate Professor Tan makes no mention of the applicant’s statement that he could buy a gun or the alleged threats to Mr Abdulnour and Mr Burbridge). The applicant reported feeling depressed, agitated and distressed, sleeping poorly and experiencing poor concentration.
122. Associate Professor Tan stated that the applicant had, since his retrenchment, enrolled in a Masters Degree at Melbourne University. Associate Professor Tan offered the applicant the alternative treatment of psychotropic medication or supportive psychotherapy. The applicant chose the latter and thereafter saw Associate Professor Tan, initially every two to three weeks, and then on a three‑monthly basis.
123. Associate Professor Tan described the applicant, when he first saw him, as being in state of extreme agitation and distress, very angry at the way the way he was being treated by Telstra and weeping profusely. Associate Professor Tan found no evidence of a psychotic disorder or any cognitive to the applicant’s general practitioner on 22 August 2005 impairment. He diagnosed a severe adjustment disorder arising from what he perceived as unfair treatment at the hands of Telstra. Associate Professor Tan was of the opinion that applicant’s symptoms would resolve quickly if he was re-employed by Telstra and went back to the work he was doing prior to 11 June 2003.
124. At a later consultation with Associate Professor Tan, the applicant described his distress caused by Dr N Lewis’ report which he felt had been unfair to him. Having read Dr Lewis’ report, Associate Professor Tan disagreed that the applicant did not need medical treatment as in his opinion he required ongoing supportive psycho-therapy.
125. Associate Professor Tan concluded that the applicant’s present state is related to his work situation, more specifically to his retrenchment.
Dr N. Lewis (Report Dated 5 April 2004, T10 p122)
126. The majority of the history obtained by Dr Lewis was derived from the applicant quoting his diary (Exhibit A1) and detailing the events of 11 June 2003. The applicant told Dr Lewis that he felt that he had been treated worse than a pig and a dog by Telstra management and had received absolutely no respect, no consultation, no communication and no humanity. The applicant said he referred to obtaining a gun to make himself feel stronger, having been severely wounded by Telstra’s invisible gun. The applicant outlined the police visit to his home, the cancellation of his access to Telstra sites, the motor vehicle accident of 21 July 2003 and the meeting on 13 June 2003 with Mr Petney and Mr Gerdtz. He asserted that he had not been given a fair go at this meeting and had not been allowed to pick up his personal belongings from Telstra offices.
Contribution of the Retrenchment Meeting of 11 June 2003
146. The respondent relied on the analysis of Justice Neaves in Australian Industry Development Corporation v Boyd (1990) 95 ALR 149; where at paragraph 60 the judge said:
…
the proposition that the employment of a worker is a contributing factor to the aggravation or acceleration of a disease if all that is established is that the worker was, while he or she was at the place of employment, informed that the contract of employment was to be terminated in accordance with its terms. Such an event cannot, in my view, properly be described as an incident or state of affairs to which the worker is exposed in the performance of his duties …
147. While the Full Court of the Federal Court allowed the appeal by Ms Boyd they had agreed with Neaves J interpretation that retrenchment arose from unemployment not general employment.
148. The decision in Boyd was followed by the Administrative Appeals Tribunal in ReVo and Comcare (2005) AATA 773, a case with some factual similarities to the matter currently before this Tribunal.
149. In Hart v Comcare (2005) 87 ALD 341 the Full Court of the Federal Court of Australia addressed the question of whether an injury or disease arising from the failure to gain a promotion was compensable and concluded at paragraph 21:
...
The so-called proviso in the definition does not exclude causes. It provides that if a disease of injury which would otherwise fall within the definition (“any such”) is one which answers a description (relevantly here: “suffered as a result of … the failure to obtain a promotion”), the disease or injury is not an “injury” as defined…
150. The respondent submitted that the applicant had said in his evidence that his disease was due to the manner in which he was retrenched rather than the actual retrenchment. The respondent contended that the evidence of Mr Abdulnour, Mr Burbridge and Ms Prior was unequivocally that the applicant had an immediate and at times irrational response to being informed of his retrenchment and that he made a threat to the interviewers. Mr Abdulnour and Mr Burbridge had denied that they had said there was no avenue of appeal open to the applicant and both confirmed that the meeting had been strictly in accordance with a scripted process set up by Telstra.
Reasonable Disciplinary Action
151. The respondent submitted that the applicant’s suspension on full pay as of 13 June 2003 and the ensuing investigation for a breach of conduct arising from the alleged threats made on 11 June 2003, were in the nature of reasonable disciplinary action. The respondent relied on the decision of Weinberg J in Schmid v Comcare (2003) 77 ALD 782 and the references in that decision to Comcare v Chenhall (1992) 37 FCR 75 , where Cooper J rejected the argument that disciplinary action referred only to the imposition of a sanction and held that:
1.The phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of, or to promote discipline
2.“Discipinary action” refers to action taken against a particular employee and does not include action taken by the Commonwealth as part of a general maintenance of discipline over employees.
3.A determination as to the guilt or innocence of the employee of alleged misconduct is not required.
4.Disciplinary action is not limited to the imposition of a sanction.
The respondent contended that the applicant’s suspension and the investigation conducted by Mr Petney into the threats made by the applicant was a disciplinary procedure laid down by Telstra, as delineated in Mr Petney’s evidence. While sanctions existed and could have been imposed if the investigation continued to a conclusion adverse to the applicant, Mr Petney reached a very reasonable settlement with the applicant that allowed the applicant to retain his redundancy package and leave Telstra. The respondent’s submitted that while the investigation was ceased and no sanction applied, this did not offend the judicial interpretation of reasonable disciplinary action.
152. Based on the decision in Hart v Comcare (2005) 87 ALD 341, the respondent argued that a finding of reasonable disciplinary action resulted in the claimed injury being deemed not to exist.
THE APPLICANT
153. The applicant declared that some of the respondent’s legal representatives comments made during the course of the hearing were insulting defamatory and humiliating. He claimed Telstra had used the litigation process and its legal and medical professionals to further persecute him.
154. The applicant disputed Mr Moulds’ submissions regarding some of the evidence before the Tribunal, and in particular Associate Professor Tan’s method of discharging him from his care, Dr Greenberg’s editing of his letter of 14 June 2003 so as to not reflect his true feeling toward Telstra staff, issues regarding his Masters of International Business course and his dealings with the Department of Immigration on his sister’s behalf. He endeavoured to give new evidence in some of these areas. It was pointed out to him that the Tribunal would rely on the evidence given on oath and as it appeared in the transcript. An attempt was made to explain the nature of the submission and that he should follow Mr Moulds’ method of dealing with the evidence.
155. The applicant challenged Dr Lewis’ conclusion that his alleged condition was due to personality and constitutional factors, on the basis that Dr Lewis had not stated on what evidence he had reached such a conclusion. The applicant relied on the decision in Re Ramalingam wherein the Tribunal referred to the need for doctors to clearly express the criteria relied upon in making a diagnosis of a personality disorder. Associate Professor Mendelson’s comment that personality and cultural factors played a part on the applicant’s condition was similarly criticised. The Tribunal pointed out that neither doctor had diagnosed a personality disorder but had referred to personality traits.
156. In relation to the contribution to his condition by his employment prior to his retrenchment, the applicant stated that he had had a problem with Ms Faith since July 2001 (Tribunal Note: this was not part of his oral evidence) because they had different approaches as to the best way to accomplish tasks. His approach had always been academic and had been so since primary school; he always wanted to investigate further and in order to do so, had done extra work. The applicant submitted that this claim was supported by the references of one of his Melbourne University lecturers, Mr Joseph Sabuski, and the reference provided by Mr Peter Kelly (Exhibit A5). The applicant claimed that Ms Faith, who he said was not up to date on technical matters because of her maternity eave, had totally failed to understand his approach and his inability to release product testing results until he was personally satisfied with the results. As a further example of this alleged conflict he cited the occasion when he recommended establishing an auditing process of the Appliance Group equipment. Ms Faith had agreed that he could audit the equipment but that he must do so at Exhibition Street and not the Carlton laboratory. He refused this task as in his opinion it breached the principles of auditing. As he handled the ordering of equipment he should not be the person who audited the accounts and equipment. The applicant claimed Ms Faith was upset by his refusal and failed to understand his argument. (Tribunal note: this was not part of his oral evidence).
157. Once more the applicant declared himself to be an academic, that he strongly abided by his principles and I will not change (transcript p652). He rejected Ms Faith’s evidence in total, including her statement that the Connect IPDSL Project (presumably the Cisco Project) was not the largest project the Appliances Group had worked on. The applicant stated that he had worked under great pressure on the project and had succeeded in saving Telstra’s reputation and getting Telstra out of trouble after Telstra had wasted six million dollars on the project. The Tribunal pointed out that in his sworn evidence he said that Telstra had spent hundreds of millions of dollars on this project without success. The applicant admitted that he had made a mistake in his evidence and that the correct sum was six million dollars.
158. The applicant submitted that he had always had total trust in Telstra senior management and that senior management had assured that all employees would be treated with respect and dignity. He had believed that his efforts on Telstra’s behalf would eventually be recognised. Ms Faith, as a Line Manager, did not represent Telstra’s senior management’s attitude toward work, but given his trust in senior management he had sent his email of 28 February 2003 to Ms Faith suggesting they compromise their differences.
159. The applicant proffered an analogy to explain his workplace harassment and his reaction to his retrenchment. He likened his normal psychological stability to a concrete roof (over his head) supported by ten columns on the perimeter and one at the centre. The harsh criticism, mistreatment and persecution by Ms Faith (transcript p658) had destroyed all the perimeter supports and the roof then balanced on the central support. This remaining support was cut off by Mr Abdulnour in the course of the meeting of 11 June 2003 leading to the applicant’s collapse and being totally mad (transcript p660). The applicant said I was crazy at the time, I can’t control myself …I feel my body was bleeding (transcript p661). (Tribunal Note: at this stage the applicant became severely distressed, irrational and commenced hyper‑ventilating).
160. The applicant claimed that while he had spoken to Ms Prior after the meeting of 11 June 2003, he had not said the words reported in her statement. He agreed he did say to several people that he would buy a gun but this was only a theoretical option and as such could not later be withdrawn.
161. The applicant believed that he should have been allowed to continue as a Telstra employee and undertake the Re-deployment Program rather than being terminated on 1 September 2003 and even if he was too sick to attend this program he would at least have been paid for a further six weeks. He did not accept that a report had not been forthcoming after the investigation for his breach of conduct and he still wanted his name to be cleared. He believed that Telstra had ruined his good name and reputation.
162. The applicant again referred to the Tribunal’s decision of Ramalingam, quoting parts of the decision. Mr Moulds’ pointed out that the decision in Ramalingam had been overturned by the Full Federal Court Decision of Hart v Comcare, with the exception for the proposition that there can be more than one cause of an employee’s condition leading to liability for compensation, provided one such cause made a material contribution.
163. The applicant reiterated that his employment by Telstra had materially contributed to his psychiatric injury and that his retrenchment on 11 June 2003 was an extension or aggravation of what happened.
164. The applicant posed another analogy to explain the course of his disease. When a cup is empty, placing an effervescent tablet in it has no effect. He likened his mistreatment by Ms Faith as rendering the cup half full of water so that the meeting with Mr Abdulnour on 11 June 2003, which he equated to dropping the effervescent tablet into the half-full glass, resulted in bubbles and to use the Tribunal’s words fizzes up everywhere.
165. The applicant endeavoured to re-open the discussion regarding Mr Nasar’s evidence of the proceeding day; but was refused leave to do so. The Tribunal assured the applicant that this decision was based primarily on the sworn evidence and not on the content of the submissions.
166. It was determined that the applicant’s name and date of birth would be treated as confidential in accordance with the s 35 Order but given his claim that cultural differences played a role in his attitudes and his principles, his country of birth would not be kept confidential.
TRIBUNALS DELIBERATIONS AND REASONING
Does the Applicant Suffer from a Disease of Injury?
167. The applicant has been assessed by four psychiatrists, one of whom has provided treatment.
168. In July 2003, Associate Professor Tan, the treating psychiatrist, diagnosed a severe adjustment disorder with the precipitating stressor being the applicant’s retrenchment on 11 June 2003. He predicted that all symptoms would resolve quickly if the applicant was re-employed by Telstra. The applicant and Associate Professor Tan came into conflict when the former quoted Professor Tan’s opinion in a Centrelink application. AssociateProfessor Tan refused to see the applicant after April 2005.
169. The applicant objected to some of the reporting psychiatrists making a diagnosis or excluding a psychiatric condition, without referral to the symptoms upon which they based their opinion. He relied on the decision in Re Ramalingam wherein Senior Member Sassella analysed the psychiatric evidence on this basis. For this reason the Tribunal Member has referred to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV – TR) that has been referred to in some of the psychiatric reports and appears to be the accepted benchmark in psychiatric practice. The Tribunal Member is not a psychiatrist but as a medical practitioner of 44 years standing has of necessity acquired some experience in this field and at least the ability to interpret the DSM IV. Additionally, the Tribunal observed the applicant over more than 25 hours during the hearing of the matter and this time frame probably exceeds the total time commitment of the four psychiatrists. Throughout the hearing there were no overt signs of depression or anxiety; although it was obvious that the applicant was very angry, histrionic in his behaviour, shouted, screamed, hyperventilated to the point of developing carpo-pedal spasm on several occasions and accused the Respondent’s Counsel of persecuting him. The applicant frequently asked to be treated with respect.
170. Associate Professor Tan’s July 2003 diagnosis of a severe adjustment disorder appears to the Tribunal to be appropriate at that time, given the DSM IV criteria for such a diagnosis of: The essential feature of an adjustment disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms:
Criterion A - The symptoms must develop within 3 months after the onset of the stressor(s)
Criterion B - The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor or by a significant impairment in social or occupational (academic) functioning.
Criterion C – This category should not be used if the disturbance meets the criteria for another specific axis 1 disorder or is merely an exacerbation of a pre-existing axis 1 or 11 disorder.
Criterion D – The diagnosis of an adjustment disorder also does not apply when the symptoms represent bereavement.
Criterion E – By definition, an adjustment disorder must resolve within 6 months of the termination of the stressor (or its consequences).
However, the symptoms may persist for a prolonged period that is longer than six months if they occur in response to a chronic stressor or to a stressor that has enduring consequences. Some stressors may accompany specific developmental events for example going to school, leaving parental home, getting married, becoming a parent, failing to obtain occupational goals, retirement.
171. The Tribunal accepts that when Associate Professor Tan saw the applicant in July 2003, his diagnosis of a severe adjustment disorder due to the applicant’s retrenchment on 11 June 2003, was an appropriate diagnosis. Whether such a diagnosis is relevant three years later is debatable. The Tribunal acknowledges that in the applicant’s mind he is still stressed by the events of 11 June 2003.
172. Dr Greenberg, who first saw the applicant in late June 2003 related his symptoms and response to his retrenchment but did not make a diagnosis of a psychiatric disorder. She advised referral to a Mandarin speaking psychiatrist because of her concern regarding cultural factors. The Tribunal notes that in DSM IV great weight is placed on cultural factors and their impact on psychological symptoms. This is particularly so with respect to an adjustment disorder and personality disorders. Dr Greenberg ultimately agreed that Associate Professor Tan’s diagnosis of an adjustment disorder was reasonable. The fact remains that Dr Greenberg did not make a primary psychiatric diagnosis at any time.
173. Dr Lewis and Associate Professor Mendelson found no psychiatric disorder; but both alluded to the personality traits of the applicant as being relevant as were cultural factors.
174. In contrast to Dr Lewis’ general comments, Associate Professor Mendelson has nominated personality traits of narcissism, histrionia and some persecution elements to account for the applicant’s response to his retrenchment. Personality traits do not amount to a diagnosis of a personality disorder, but DSM IV does provide some guidance in that it describes the symptoms of these disorders. A certain number of these symptoms or criteria must be present before a disorder can be diagnosed. A failure to meet the required numbers of the criteria is presumably indicative of a personality trait.
175. There are eight criteria for a narcissistic personality disorder. While Associate Professor Mendelson had not delineated the applicant’s symptoms and behaviour leading to his opinion, the Tribunal Member, as a result of observing the applicant, is of the opinion that the applicant exhibits four of the eight criteria in respect to a narcissistic personality disorder, five being the requisite number for the diagnosis of a disorder. The criteria are:
1.has a grandiose sense of self importance (eg exaggerate achievements and talents, expects to be recognised as superior without commensurate achievements)
2. is pre-occupied with fantasies of unlimited success, power, brilliance, beauty or ideal love.
3. believes that he or she is “special” and unique and can only be understood by or should associate with other special or high status people (or institutions).
4. requires excessive admiration
5.has a sense of entitlement, i.e. unreasonable expectations of a specially favourable treatment or automatic compliance with his or her expectations
6.is interpersonally exploitive i.e. takes advantage of others to achieve his or her own ends
7. lacks empathy: is unwilling to recognise or identify with the feelings and needs of others.
8 is often envious of others or believes that others are envious of him or her
9.shows arrogant haughty behaviours or attitudes.
176. The Tribunal, having taken into consideration all the evidence before it, and from its own observations of the applicant during the hearing, is of the opinion that the applicant’s symptoms, behaviour and presentation satisfy criterion 1, 3, 5 and 7. The evidence in support of criterion 1 that the applicant has grandiose sense of self importance lies in his listing of various faults he claims to have unearthed as being fatal flaws which would cause Telstra loss of money and prestige. In contrast, it was Ms Faith’s evidence that projects undertaken by the applicant were of minor importance in the total Telstra arena. Additionally, there is some doubt in the Tribunal’s mind that the applicant actually solved these problems by himself, as he worked, albeit exceedingly long hours, but in conjunction with the Alcatel and Cisco technologists. In his evidence, the applicant claimed to have been the top student in each of his three tertiary courses (transcript p122). He provided no documentary evidence to support his claim. The applicant told Dr Lewis that he had only completed two years of his three-year degree course at Shanghai University and that his Footscray TAFE course was an advanced certificate in Sales and Marketing (T10 p122).
177. Criterion 2 states that the person believes they are special and unique and can only be understood by or should associate with other special or high status people or institutions. The applicant has repeatedly declared himself to be an academic, to abide by his principles and that he will not change. In his evidence he said he selected his general practitioner, Dr Andrianakis, because Dr Andrianakis apart from other factors was an academic or was so perceived, because he had a PhD from the University of Melbourne. The applicant placed considerable emphasis on the fact that his degree was from the University of Melbourne and appears to have regarded this as superior to other tertiary institutions. While not detailed in this decision, the applicant referred to his referral to Professor F McCrae as being seen by an English Graduate and a Professor of Medicine.
178. Criterion 5 states that the patient has a sense of entitlement; ie unreasonable expectations of especially favourable treatment or automatic compliance with his or her expectations. The applicant in his evidence and his emails expressed the opinion that he had not been adequately rewarded for the five-week period in which he filled in for his Acting Manager, Mr Keon, in 2002. Ms Faith’s evidence was that this had been a particularly quiet time, without any challenges; and that the applicant had been selected to perform this task as he was then the most senior person in the office. Similarly, the applicant stated in some of his emails that his solution of various problems were a matter or great happiness to him but he had not been rewarded in any form for his revelation of the defects in various programmes.
179. Criterion 7 states that the person lacks empathy: is unwilling to recognise or identify with the feelings and needs of others. The applicant has regarded all Ms Faith’s recommendations and advice as being criticisms; has stated that she and he had different methods of working but he does not believe that her methodology is commensurate with his. In other words he thinks that his approach to work is superior to that of Ms Faith who he describes as being technically out of date, because of her maternity leave, and whose repeated advice regarding the nature of his job requirements has ignored his input and academic approach to solving detected appliance faults.
180. The applicant does not meet the requisite five of the eight criteria required to diagnose narcissistic personality disorder, but the Tribunal agrees with Associate Professor Mendelson that he has such a personality trait.
181. On balance the Tribunal finds that the applicant does not suffer from a psychiatric disorder and that his response to various events has been determined by his personality traits. The Tribunal is not in the position to assess the contribution of the applicant’s cultural background to his response; although he frequently asserted that his approach to his work was dictated by his background and believed that he had been discriminated against on a racial basis. The Tribunal cannot discern any evidence to support a claim of racial discrimination and notes that Mr Abdulnour and Mr Nasar are of Middle–Eastern background and Ms Faith is an American.
182. The Tribunal acknowledges that its interpretation and conclusion may be wrong and that Associate Professor Tan’s diagnoses of a severe adjustment disorder resulting from the applicant’s redundancy may be correct, at least in the year 2003; and has therefore proceeded to consider this “injury” further.
Employment Issues And Their Contribution To The Development Of Any “Injury” or in this Case Disease Of A Psychiatric Nature
183. The applicant claims harassment by Ms Faith from 2001 and has accused Ms Faith of lying in both her reports and evidence before the Tribunal. The applicant did not raise the question of work place harassment until 15 December 2005 and did not refer to it in his diary (Exhibit A1). The evidence indicates that Ms Faith and the applicant had different attitudes to the role of the Quality and Assurance Testing Team and that Ms Faith followed the company line whereas the applicant followed “his own principles”.
184. Ms Faith’s criticism of the applicant’s excessive private use of his company‑provided mobile telephone and the time he spent, out of hours, using Telstra computers was appropriate. Likewise, her findings in the performance review of January 2003 were appropriate. She realised there may have been cultural factors operating and contributing to the applicant’s attitude and sought the assistance of a Chinese Human Resources person. She approved the applicant’s request for written and spoken English tuition. The Tribunal cannot find any evidence that Ms Faith harassed the applicant. In fact her tolerance of his behaviour and attitude was beyond the norm. Ms Faith presented as a caring, concerned, knowledgeable and efficient Line Manager who did her utmost to assist the applicant. The applicant’s description of Ms Faith can only be described as unfair, unappreciative of her efforts on his behalf and without any basis in fact.
185. The Tribunal finds that the applicant was not subjected to any work place harassment but acknowledges that he, given his personality, perceived any criticism, or more correctly, instruction at any level, as harassment.
The Applicant’s Retrenchment and its Contribution to the Injury Claimed
186. Associate Professor Tan, being the only psychiatrist who has made a diagnosis, has attributed the applicant’s adjustment disorder to his retrenchment of 11 June 2003. His retrenchment was part of a nation wide Telstra re-organisation and on the evidence totally unrelated to any individual’s performance. The applicant remains unable to accept that he was retrenched on this basis, given his perception of his outstanding service to Telstra. No psychiatrist has attributed his claim injury to other than the retrenchment of 11 June 2003; nor were any of them told of any work- place harassment when he first presented.
187. The Tribunal relies on the decision on Neaves J Australian Industry Development Corporation v Beverley June Boyd where at paragraph 60 her Honour said:
Such an event (termination of employment or retrenchment) cannot, in my view, properly be described as an incident or a state of affairs to which the worker is exposed in the performance of his duties.
Retrenchment is thus not related to general employment but more correctly to unemployment...
Disciplinary Action
188. The applicant was advised of his retrenchment on 11 June 2003 but remained employed by Telstra, depending on which option he elected to accept, that is whether he would take the $4,500 in cash and leave within seven days or accept a re‑deployment program to be conducted over a period of six weeks. Thus, although retrenched, he remained a Telstra employee. As a result of the perceived threats to Telstra managers, he was suspended on full pay as of 13 June 2003. An investigation, into his behaviour during the retrenchment interview and the threats he allegedly made, was conducted by Telstra over a period of six weeks and culminated on 29 August 2003 with the applicant accepting a settlement whereby he retained his redundancy package and ceased employment on 1 September 2003. It was open to Telstra to summarily dismiss the applicant on 13 June 2003 and deprive him of his redundancy package benefit. The company chose not to do so. Following intensive and presumably costly investigation, Telstra more than reasonably allowed the applicant to elect for voluntary retrenchment with preservation of his redundancy package. Despite this offer, which the Tribunal perceives to be generous, the applicant believes he should have been allowed to work on full pay for a further six weeks after 1 September 2003, as even if he was too sick to attend work he would still have been paid.
189. The Tribunal finds that the investigation of the events and threats of 11 June 2003 were of a “disciplinary nature” as described by Cooper J in Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees v Chenhall. Telstra’s behaviour, throughout the period of investigation into whether the applicant had breached its Code of Conduct and the eventual settlement, has been beneficent to the applicant.
190. The Tribunal finds that the applicant does not currently suffer from an injury or disease as defined in s 4 of the SRC Act. Should Associate Professor Tan’s diagnosis made in July 2003 be correct, the adjustment disorder diagnosed is solely attributable to the applicant’s retrenchment on 11 June 2003 and thus related to unemployment rather than employment.
191. The Tribunal affirms the decision under review.
I certify that the one hundred and ninety‑one paragraphs [191] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Dianne Eva
Clerk
Dates of Hearing: 27-28 March 2006, 16-18 August 2006
Date of Decision: 26 October 2006
Solicitor for the applicant: Nil – self-representedCounsel for the respondent: Mr A. Moulds
Solicitor for the respondent: Frenkel Partners
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