Walsh and Comcare - [2002] AATA 1111

DECISION AND REASONS FOR DECISION [2002] AATA 1111

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/47

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BRENDAN MICHAEL WALSH
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M D Miller AO, Member

Date29 October 2002
PlaceCanberra

Decision      The tribunal affirms the decision under review. The applicant is entitled to no costs in respect of this application.
  ..............................................
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – chronic alcoholism – whether an injury – whether disease caused, contributed to or exacerbated by employee's work – reasonable disciplinary action – employee failed to notify Comcare in writing as soon as practicable after becoming aware of injury

Safety, Rehabilitation and compensation Act 1988 ss 4(1) ("ailment", "disease", "injury"), 14(1), 53(1), (3)
Public service Act 1999 s 13

Casarotto v Australian Postal Corporation (1989) 86 ALR 399

REASONS FOR DECISION

29 October 2002 Mr M J Sassella, Senior Member Dr M D Miller AO, Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Brendan Michael Walsh, born 23 August 1958 (T5) ("the applicant"), for review of a reviewable decision by Comcare ("the respondent") dated 15 January 2001 (T24) which affirmed a primary decision dated 9 August 2000 (T8) rejecting the applicant's claim for compensation for a work-related anxiety depression (T5).
THE HEARING
The tribunal convened a hearing in this matter in Canberra on 29 and 30 July 2002. Mr B J Salmon QC of counsel represented Mr Walsh. Mr D O'Donovan of counsel represented the respondent. The tribunal heard oral evidence from Mr Walsh, Ms U Venkatarman, Mr D Stonyer, Ms S Tatam, Ms D Munro, Mr P Vardos, Dr D Lawrence, Dr J Saboisky and Dr W Glaser. The tribunal took into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, 30 May 2001.
Exhibit A2 – Applicant's medical history.
Exhibit A3 – Report by Mr G Hanna regarding applicant's work performance, 22 July 2002.
Exhibit A4 – Progress report on applicant's return to work program, 20 April 2001.
Exhibit A5 – Report by Dr D Bowers, 12 July 1999.
Exhibit A6 – Statement by Ms U Venkatarman, 15 May 2002.
Exhibit A7 – Statement by Mr D Stonyer, 15 March 2001.
Exhibit A8 – Report by Dr A Lark, occupational physician, 31 January 2001.
Exhibit A9 – Report by Dr Lark, 22 March 2001.
Exhibit A10 – Health assessment report by Dr Lark, 7 May 2001.
Exhibit A11 – Report by Dr Lark, 10 May 2001.
Exhibit A12 – Reports by psychologist Mr T McHugh, 30 March 2001 and 11 May 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 6 November 2001.
Exhibit R2 – Record of interview of applicant by Mr S Forshaw, 3 April 2000.
Exhibit R3 – Work report on applicant by Mr P Castrission, 29 June 1999.
Exhibit R4 – Electronic mail messages dated 22 December 1999.
Exhibit R5 – Dr G Guirguis's clinical notes.
Exhibit R6 – Report by Dr K Powell, physician, 28 February 1995.
Exhibit R7 – Report by Dr J Saboisky, psychiatrist, 15 June 1999.
Exhibit R8 – Report by Dr Saboisky, 30 May 2000.
Exhibit R9 – Report by Dr W Glaser, psychiatrist, 18 August 2001.
Exhibit R10 – Report by Dr Guirguis, 6 October 2000.
Exhibit R11 – Statement by the applicant, undated.
Exhibit R12 – Statement by Ms S Tatam, 10 July 2002.
Exhibit R13 – Statement by Ms D Munro, 16 July 2002.
Exhibit R14 – Statement by Mr P Vardos, 9 July 2002.

LEGAL PRINCIPLES

In order to qualify for compensation in accordance with s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") the applicant must have suffered an injury resulting in incapacity for work or an impairment.
The applicant will have suffered an injury in accordance with the definition of "injury" in s 4(1) of the Act if he has a disease as defined in s 4(1) or an injury, other than a disease, being a physical or mental injury arising out of, or in the course of, his employment with the Department of what is now known as Immigration and Multicultural and Indigenous affairs ("DIMIA"), or an aggravation of a physical or mental injury where the aggravation arose out of, or in the course of, his employment with DIMIA.
If the applicant relies on an injury in the nature of a disease, the tribunal will have to be satisfied that Mr Walsh has an ailment as defined in s 4(1) of the Act, or an aggravation of an ailment, where Mr Walsh's employment with DIMIA contributed in a material degree to the ailment or aggravation.
Mr Walsh claimed for work-related anxiety depression (T5). This was said to have been first noticed in March 1992. It was first treated in March 1992. He had been referred to Dr Lawrence for assistance. The illness involved stress, depression, anxiety and low self-esteem. As events contributing to the illness he cited job dissatisfaction, lack of assistance or direction, stress, anxiety and excessive drinking. He had returned to work in May 1992.
By the time of the hearing, Mr Salmon QC told the tribunal that Mr Walsh was seeking reimbursement of medical expenses and incapacity payments. The relevant period was late 1999 into 2000. Mr Walsh's condition, or "disease", was alcohol consumption and depression.
On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
In the present case there has not yet been established any workers' compensation liability affecting Comcare. A practical, if not legal, onus therefore lies on Mr Walsh to satisfy the tribunal that Comcare was and is liable to pay compensation to him.
THE EVIDENCE
mr walsh's evidence
Mr Walsh gave evidence at the hearing. He placed the commencement of his drinking in early 1992 when he became excess to requirements in a job he enjoyed in DIMIA. He was transferred elsewhere in the same division within DIMIA. He later found that the work he had previously done had been taken over by another officer, a friend of the director. This was said to have adversely affected his health. He began to drink heavily. He saw general practitioner, Dr Guirguis, who referred him for detox at Woden Valley Hospital. Mr Walsh completed that program, taking 2 ½ weeks off work. Mr Walsh said he had never been so depressed before. He had not drunk to excess before. He claimed no compensation at that time. He continued on in his job.
By 28 February 1995 Mr Walsh had recommenced drinking. Dr K C Powell, a physician, reported to Dr Guirguis on that date (ex R6) on a number of symptoms including dissatisfaction with his job and no likelihood of it changing. Mr Walsh told the tribunal that he thought he had increased his drinking at that time because of the drinking culture at work.
In 1998 Mr Walsh was working in the Movement Alert List ("MAL") Section in the division. This was amalgamated with another section to become the Law Enforcement and MAL Section ("the LEMAL Section"). In 1998 Mr Walsh, a heavy smoker, was found to have a carcinoma of the mouth. He had an operation for that on 9 November 1998. The disease has not recurred. He had 7 – 10 days off work for this surgery.
Mr Walsh agreed in cross-examination that the diagnosis of mouth cancer was traumatic. He had been frightened by it. Mr O'Donovan ascertained that Mr Walsh had been prescribed Aropax. While Mr Walsh insisted that this was for his smoking habit, Mr O'Donovan suggested it was for depression. Dr Guirguis's report of 23 October 1998 (ex R10) also linked the Aropax prescription with depression.
Between 1992 and 1999, Mr Walsh estimated, he had had only about 10 days of sick leave each year. In early 1999 Mr Walsh had three months off work on sick leave.
In late 1998 or early 1999, when he was in the LEMAL Section, Mr Walsh was charged to assist in training officers of the Australian Federal Police ("the AFP") in use of the MAL computer system, a system used to access a database to check movement into and out of Australia of persons of interest. Mr Walsh enjoyed that work. Then in 1999, Ms S Tatam became Mr Walsh's assistant director. In Mr Walsh's view she had little relevant experience or knowledge of the relevant programs. There followed evidence from Mr Walsh going to his objections regarding Ms Tatam's management of him which, he seems to consider, caused or exacerbated his problems.
He said that Ms Tatam would "come over and interrupt" Mr Walsh. Mr Walsh saw Ms Sally Anne Ducker, the director of the section, who confirmed that Mr Walsh's then current project, a project designed to ensure that the MAL system would be Year 2000 compliant ("the project"), was actually Mr Walsh's project.
An issue of leave taken by Mr Walsh on the basis of forged documents then arose. Mr Walsh took a month's leave on 29 April 1999, not long after Ms Tatam's arrival. Mr Walsh said he took leave because he felt stressed. He felt inhibited. He was concerned at the way in which he was treated and that he had no recourse. He said that his depression set in in April 1999. Mr O'Donovan in cross-examination challenged this, suggesting that the depression stemmed from the cancer scare in October 1998. He cited Dr Guirguis's report of 23 October 1998 (ex R10) in support. Mr Walsh refused to accept this. He insisted that the depression emerged only in April 1999. He said that anxiety was the result of the cancer scare. He said this was relieved after the operation. He then insisted that the depression became more severe with Ms Tatam. Mr O'Donovan referred Mr Walsh to Mr Castrission's report dated 29 June 1999 (ex R3) in which Mr Castrission recorded that on 31 May 1999 Mr Walsh told him that "the illness he had to deal with in November (1998) was frightening and he was currently having problems and 'needed to deal with it'". Mr O'Donovan put to Mr Walsh that when he has problems with drinking he attributes it to workplace stress. Mr Walsh refused to accept this stating that stress induced drinking. Asked what was the stress, Mr Walsh did not provide an answer. By this time he was not working with Ms Tatam (see paragraph 28 below). Exhibit R2 shows that Mr Walsh was still taking Aropax in April 2000 and he described them as anti-depressants. He also told the interviewer that he was sick through much of 1999 because of the trauma associated with the cancer diagnosis in 1998.
In cross-examination Mr O'Donovan queried how Mr Walsh could successfully complete his university course when he was under stress and consuming too much alcohol. Mr Walsh replied that his results would have been better without the stress.
Mr O'Donovan suggested that Mr Walsh went on a binge in his month away from work in May 1999. Mr Walsh said he could not face Ms Tatam. Mr Walsh said he had eight or 10 drinks a day. He did not see a doctor. Mr Walsh said that he had no good recollection of events in 1999 regarding certain forged documents, which were Dr Guirguis's medical certificates, when he was interviewed by DIMIA internal investigators. He has a recall of only isolated incidents in 1999. The forged medical certificates were to cover his time off in May and December 1999. Mr Walsh told Mr O'Donovan that he decided to forge the medical certificates when he felt it was time to return to work. He could recall preparing only the final of several certificates.
Mr Walsh recalled one particular incident involving Ms Tatam. Mr T Drury, the director of the MAL Section before the amalgamation with Law Enforcement, had gone to the Department of the Prime Minister and Cabinet. Mr Drury had submitted a monthly report on MAL to the Minister. Ms Tatam asked Mr Walsh to check some material Mr Drury had provided for use in the next report after his departure. Mr Walsh checked the material. Ms Tatam had Mr Walsh in her office. She asked him to tell her what he had concluded as she typed the material into a draft of the report. Mr Walsh told the tribunal that Ms Tatam's questions indicated her lack of understanding of MAL. Mr Walsh objected to Ms Tatam receiving credit for the information he provided. He described Ms Tatam's manner towards him as "average, perhaps a little autocratic". Mr Walsh said he left Ms Tatam when she took a personal telephone call. He had not finished telling her what he knew for the report but the exercise was not continued later. Soon after that the Ministerial reports were made less frequently.
Mr Walsh agreed with Mr O'Donovan that he had little to do with Ms Tatam in 1998. He agreed also that his attendance at work to the end of April 1999 had been less than reliable. He agreed that he was abusing alcohol, drinking at lunchtime and at night.
Mr Walsh described another incident involving Ms Tatam that caused him concern. She had to log on to the departmental mainframe computer for MAL and had difficulty doing so.
Mr Walsh described how, when the testing program for the Year 2000 project was being run, Ms Tatam "invited herself along". He said that she "showed her ignorance and slowed it all down". She "behaved as if she had discovered something new, a new toy". She was "slowing [Mr Walsh] down". She was "childish". Mr Walsh admitted, however, that she was not being unpleasant to him.
Mr Walsh told the tribunal that he had worked in close proximity to Ms Tatam before she took over his area. She remained physically proximate after the take-over. He had observed and, as he put it, "heard her". He said that Ms Tatam's manner towards him was at first very friendly when she wanted something. However, if things did not "go her way", Mr Walsh said she would "make you a scapegoat or take it out on you".
The tribunal asked Mr Walsh for any instances where Ms Tatam had been unpleasant to him. He said there were some instances but he could describe none. He said they were not "early in her reign". He said he avoided her because he had overheard her across the partition and had observed her behaviour. He avoided any confrontation with her.
On the Queen's Birthday long weekend in June 1999 Mr Walsh skipped taking leave. He went into work and found that Ms Ducker had left to undertake overseas duties and Ms Tatam was in charge. He then said that Ms Tatam interfered with him in his work. She "stamped up and down" and kept "demanding things". He went to Ms Tatam and dropped all the files on her desk. He told she "could do it", meaning the project. Mr Walsh was given the project in March or April 1999. He said he coped well with the work to April 1999. In cross-examination Mr O'Donovan observed that Mr Walsh's colleagues did not agree with that. Mr Walsh replied that the Year 2000 job was being done satisfactorily. It was put to Mr Walsh that his colleagues were unimpressed with progress because Mr Walsh was drinking at lunch times and sometimes did not return to work after lunch, or returned in a state unfit for work. Mr Walsh insisted that the work was progressing satisfactorily despite his work absences. He conceded that the work absences were unacceptable.
In cross-examination Mr Walsh had more to say about the project and Ms Tatam. He said he saw himself as in charge of the project although Ms Tatam was his supervisor. He saw Ms Ducker as the person monitoring progress. He understood that Ms Tatam was not to be involved in the day to day machinations of the work. He was adamant that the project was progressing despite his drinking. In a discussion with Ms Munro he was not, so far as he recalled, told that he was not attending to the project.
As the year progressed, Mr Walsh said, management saw the problems with the section and the animosity between Mr Walsh and Ms Tatam. Mr Walsh returned from leave to find a Mr P Castrission put into the section as Mr Walsh's supervisor. He and Mr Castrission had a "good relationship". Mr Castrission left in August or September 1999 and Ms T Gerlach took over from him.

Exhibit R3 shows, however, that Mr Walsh's work attendance in June 1999 was very poor, and this was Mr Castrission's assessment. The chronology was:
(a)27 May 1999. Mr Walsh was due to recommence work after a month's sick leave. He did not attend. When telephoned he said he had broken his glasses and would start on 28 May 1999.
(b)28 May 1999. Mr Walsh began work at 8.40 am but was not seen again after midday.
(c)31 May 1999. Mr Walsh arrived between 9.30 and 10.00 am. Mr Castrission spoke to Mr Walsh. Mr Walsh was keen to ensure that Mr Castrission knew he had recreation leave every Wednesday to attend university. He said he was absent on the afternoon of 28 May 1999 talking to a friend. He had not intended to take the afternoon off. It had "just happened that way". He said he would take that afternoon on flex leave. Mr Walsh told Mt Castrission he was tired of systems work. He said he would like a project "and did not want interference from officers who do not have the background knowledge to tell him what he should be doing. He said if officers interfere he would tell them to 'shove it'". Mr Walsh's health was discussed. Mr Castrission asked Mr Walsh to tell him if he intended taking further time off work. Mr Castrission did not recall seeing Mr Walsh after noon on that day. At 1.50 pm Mr Castrission received a phone call from Mr Walsh. He said he was with his cousin and would not be back at work that afternoon. Mr Castrission "asked Mr Walsh about the work issues [they] discussed earlier in the day. He did not respond. [He] also asked if [Mr Walsh] was taking the time off on flex leave. He said 'whatever'".
(d)1 June 1999. Mr Walsh arrived at 10.00 am. Mr Castrission spoke to him. Mr Walsh said he wanted some time off work as he was having troubles coping with his cancer scare six months ago. Mr Castrission told Mr Walsh that after extended sick leave of a month, as Mr Walsh had had, Mr Walsh needed to be assessed to see if he was fit for duty. He gave Mr Walsh the telephone number of Ms W Grant of the DIMIA Industrial Relations Section. Mr Walsh disappeared until 12.10 pm. At 12.20 pm Mr Walsh told Ms D Munro that he was going to leave Mr Castrission a note as his mouth had begun bleeding and he was going home. Mr Castrission said that Mr Walsh's attendance at work had been intermittent since 1 June 1999. Mr Walsh advised Mr Castrission that he had trouble concentrating at work.
(e)2 June 1999. Mr Walsh was absent from work. He submitted a recreation leave application.
(f)3 and 4 June 1999. Mr Walsh attended work suffering from a severe case of gout.
(g)7 June 1999. Mr Walsh was absent on sick leave because of gout.
(h)8-15 June 1999. Mr Walsh attended work, with Wednesday out at university. On 15 June 1999, at 5.30 pm, after Mr Walsh returned to his workstation, he appeared affected by alcohol. His speech was slurred. He had trouble walking.
(i)16 June 1999. Mr Walsh attended a training course all day.
(j)17 June 1999. Mr Walsh attended work. He was at his workstation most of the morning until lunchtime. He returned at 2.30 pm. He left at 3.15 pm. He had a doctor's appointment.
(k)18 June 1999. Mr Walsh attended work until lunchtime. He returned at 3.00 pm and left at 3.10 pm. He did not advise Mr Castrission that he was leaving. When Mr Walsh returned to his workstation he appeared affected by alcohol. His speech was slurred. He had trouble walking.
(l)21 June 1999. Mr Walsh did not attend work. A voice mail message informed Mr Castrission that Mr Walsh was attending to "family business".
(m)22 June 1999. Mr Walsh did not attend work. There was no answer when Mr Castrission telephoned Mr Walsh.
(n)23 June 1999. The same as the previous day. However, Mr Walsh telephoned Mr Castrission at 12.25 pm. He said he had seen his specialist and "things were OK" with his mouth problem. However, he was suffering from high blood pressure and stress. He said he had a doctor's certificate for 21 June to 2 July 1999. He said he was staying with his parents and gave a contact number.

Mr Castrission said that on the days when Mr Walsh left work early he was prepared to try and undertake his normal duties in the mornings. However, he appeared to lose concentration and was distracted by lunchtime. Mr Castrission referred the matter to Ms Grant as he was concerned for Mr Walsh's health and well being.

Ms Grant referred Mr Walsh for counselling through the Employee Assistance Program ("EAP"). Mr Walsh told the tribunal that EAP helped him "get back on the road". His work attendance would have improved in July and August 1999, said Mr Walsh. He said he had no real problems coping with the job at all except that his Performance and Learning ("PAL") Agreement was not completed by Mr Castrission. Mr Walsh said that he got "pretty cranky" with Mr Castrission but it was eventually done. Mr Walsh needed it for reimbursement for his study fees. Mr Walsh said he saw Mr Castrission as a friend, but not a close friend.
Mr Walsh was also referred to Dr Bowers of Health Services Australia. Dr Bowers reported on 12 July 1999 (ex A5). Mr O'Donovan in cross-examination asked Mr Walsh if he had been truthful in his dealings with Dr Bowers. Mr Walsh said that he had. However, Dr Bowers recorded that Mr Walsh had been given a medical certificate by Dr Guirguis in respect of stress at work in April 1999. This was a certificate forged by Mr Walsh.
Mr Walsh described working with Ms Gerlach. She was acceptable to him. He was no longer engaged in the project. In October-November 1999 Mr Walsh went overseas for a holiday. Mr O'Donovan suggested to Mr Walsh that this must have been a period where he was not under stress yet he drank to excess overseas where he was twice admitted to hospital for heavy drinking. Mr Walsh agreed that it was a no stress period but he blamed a tour guide for encouraging him to drink whisky.
He returned to find Ms Tatam in direct charge of him. Ms Gerlach and Ms Ducker had gone. He said that Ms Tatam "turned on the charm" and invited Mr Walsh to work in a different building. She asked Mr Walsh to "keep an eye" on Mr P Sherman with whom he would be working and see how he did his job. Mr Sherman was Mr Walsh's fourth cousin. Mr Sherman was not a "drinker". Mr Walsh told the tribunal he did not do as Ms Tatam had requested. "It would be like spying on a colleague". A Mr D Stonyer was also working there. He was "not a regular drinker". Their work involved liaison with the AFP, the Australian Customs Service, Centrelink and the Health Insurance Commission. In cross-examination Mr Walsh agreed with Mr O'Donovan that the return to work discussion with Ms Tatam was to find him congenial work to do in a building away from Ms Tatam. Mr O'Donovan suggested that the workplace was giving Mr Walsh work to his specifications. He began this work early in December 1999. After two weeks he forged another doctor's certificate. Mr Walsh thought he was drinking that week. He agreed he was not in physical proximity to Ms Tatam.
On 22 December 1999 Ms Tatam counselled Mr Walsh because of his unauthorised absences from work. The aim of the counselling was that Mr Walsh should cease going to the pub and not returning to work. Mr Walsh agreed that on Christmas Eve 1999 others had to complete work that Mr Walsh should have done.
Mr Walsh then described events in 2000. Mr Walsh said that 2000 was, for him, a wasted year. He was on duty alone until late in January. In a statement for his solicitor (ex R11) Mr Walsh said this was a period of heavy workload as he was doing the work of three people without having been trained in the work. He said he sought respite by drinking more heavily. He went on to say that it was "during one of these sessions" that he "stupidly" falsified one of Dr Guirguis's medical certificates. He told his solicitor that this was an aberration totally brought about by his diminished responsibility because of drink. A Mr L Mitchell came in as supervisor in February 2000. Mr Walsh was required to do mundane filing work. The more interesting projects he had formerly done were then done by Mr Mitchell. Mr Walsh said he felt devalued. He lost self-esteem. Absenteeism ensued. Both Mr Mitchell and Ms Tatam would visit Mr Walsh's workplace to see if he was at work. He would be at the pub or at the library when not present upon their arrival. Mr Walsh agreed that he had long breaks dealing with private concerns. In ex R11 Mr Walsh told his solicitor that his "main discontent" was the "unprofessional supervision and direction" given him by Mr Mitchell and Ms Tatam. He said that since about March 2000 Ms Tatam had harassed him about attendance to the extent that "if I am not at my desk when she visits our work area from her desk in a separate building, I am in big trouble". This was said to apply also to Messrs Sherman and Stonyer, but to a lesser extent. He wrote:
"I generally went to Friday lunchtime drinks where departmental colleagues gather for the end of week celebrations; talking work, sport, politics, etc. I reached the point in March 2000 that I found it extremely difficult to face up to work. My normal day would consist of rising at 7am; going to the bathroom to vomit (dry retch) due to anxiety and nerves; once settled have 2 or 3 beers with breakfast to calm myself; catch the bus to work; by 11am the stress of the work environment would get to me so much I needed to have a couple more beers to relax; return to work by 11.30am and go to lunch for a few more beers about 1.00pm until 2.00pm. Sometimes in the afternoon I would feel the need due to the workplace stress to duck out at about 3.30pm for a beer.
"After work at 5.00pm or 5.30pm I would have a couple of beers with friends to unwind and give thanks for surviving another day. When the stress from my supervisors is prolonged and I have difficulty sleeping, I take Polaromine tablets.
"As my supervisor, Suzanne Tatam has never counselled me to offer constructive advice or assistance. It appears to me she is trying to grind me down to resignation or dismissal from the APS. There have never been any concerns or doubts raised about the quality of the work I produce. I consider that she has a vendetta toward me, for what reason I do not Know. I act accordingly dealing with this stress by increasing my frequency of absenteeism and drinking."
Mr O'Donovan was unimpressed by this document. He put to Mr Walsh that he drank heavily whether he was at work or elsewhere. He had drunk heavily when overseas for two months. Mr Walsh agreed that he had absented himself from the workplace without authorisation. He agreed with Mr O'Donovan that it was not surprising that a manager would try to stop such conduct. Mr O'Donovan picked Mr Walsh up on the allegation that he was not counselled by Ms Tatam. He had said in earlier evidence that she did counsel him on 22 December 1999 (see paragraph 34 above). Mr Walsh responded that he did not see "one-to-one" counselling as genuine counselling. He seemed to prefer a formal counselling with a report held on file for a lengthy but finite period. Mr O'Donovan suggested that the morning dry retching was related to his drinking. Mr Walsh refuted this. He said that a few early morning beers helped to settle his nerves.
He spoke to his union representative. A meeting was set up with the Branch Head, Assistant Secretary P Vardos. Mr Walsh asked Mr Vardos for better quality work assignments.
Mr Walsh said that when Ms Tatam visited the work place where he and Messrs Sherman and Stonyer worked she "scolded them like school kids". She would "rant and rave if they were not at their desks". She "always wanted to know where people were". Messrs Walsh and Stonyer approached Mr Mitchell about filing an harassment claim against Ms Tatam. Mr Mitchell advised against it. Mr Walsh described himself as stressed, depressed and with nowhere else to go. He said he vomited when he got up each morning. He drank "a few beers" before work to calm himself. Mr Walsh saw Dr Guirguis who suggested that Mr Walsh see Mr Lander, a solicitor, and take some time off work. Mr Lander recommended that Mr Walsh claim compensation. Mr Walsh said that he felt that "management was against him".
On 3 April 2000, however, the DIMIA Internal Investigations Unit interviewed Mr Walsh about the alleged forged medical certificates (ex R2). This was the first that Mr Walsh knew of his forgeries being detected. He admitted to the forgeries. He said he was humiliated and embarrassed and realised he could be dismissed. He later discovered that criminal action was in train. He was alarmed, anxious and distressed. He drank heavily. He went to see Dr Guirguis on 4 May 2000 to apologise for the forgeries. He had an epileptic fit in the surgery and broke his jaw. He was in hospital for 5 to 7 days. He was off work until early June 2000.
Mr Walsh said he attempted a return to work in June 2000. He went off drink. He "wore a tie to work". This lasted a month. The work was mundane. He felt he was being spied on. He could not face going to work. He then again fell into a depression. He resumed heavy drinking in July 2000. He used up his leave. He saw psychiatrists. He saw Dr D E H Lawrence who gave oral evidence later in the hearing.
In fact Mr Walsh saw two psychiatrists. He first saw Dr Guirguis for Campral, a medication for alcohol abuse. Dr Guirguis referred him to Dr Saboisky. Dr Saboisky reported on 15 June 1999 (ex R7). Dr Saboisky noted Mr Walsh's late arrival resulting from his having drunk a significant amount the night before. Dr Saboisky noted that Mr Walsh went into delirium tremens when he ceased alcohol. His drinking was perpetuated by his shyness and lack of female companionship. Dr Saboisky suggested that it would take a scare like the mouth cancer to induce Mr Walsh to give up drinking. On 30 May 2000 Dr Saboisky wrote again to Dr Guirguis (ex R8). He saw Mr Walsh's epileptic fit in Dr Guirguis's office as resulting from alcoholism. He wrote in relation Mr Walsh's compensation claim intentions:
"The third is that he attributes all his work related problems to a number of supervisors whom he believes have harassed him in an attempt to grind him down to resign or be dismissed from the Australian Public service. When I asked him what particular issues had been raised with her [sic] they primarily related to his failure to attend the work place usually because he had been out drinking.
"He is considering some sort of Comcare application because of his perceived treatment in the public service.
"Given his admissions of drinking throughout the day and taking time off work I think it is unlikely that any Comcare application would be successful …"
Mr Walsh saw Dr Lawrence and gave him what Mr O'Donovan described as a selective history. Dr Lawrence reported on 18 December 2000 (T21). Mr Walsh mentioned his father to Dr Lawrence but said nothing of his father's alcohol problem. Mr O'Donovan charged that he did not tell Dr Lawrence he had left boarding school after being caught smoking. He did not tell Dr Lawrence of his alcohol abuse since 1992. He told Dr Lawrence that Dr Guirguis had given him time off work when in truth he had forged Dr Guirguis's certificates. Mr Walsh told Mr O'Donovan that he did not think he told Dr Lawrence of the forgeries and the cancer scare and how they produced anxiety.
Mr Walsh had two detox sessions in 2000. He was at Canberra Hospital for seven days in August and a day in September (ex A2). He then did a program at Wagga at O'Connor House for three weeks in November-December (ex A2). The latter course was effective in that it gave Mr Walsh "the strength" to see his Division Head about a return to work but somewhere away from Ms Tatam. In cross-examination it emerged that Mr Walsh had enrolled in the course at Wagga at least in part with a view to obtaining a reference of use in his upcoming criminal prosecution.
Mr Walsh had a graduated return to work starting in February 2001 (ex A4). By June 2001 he was working full time. He recommenced in the Air and Seaports Section before moving to Entry Strategies and MAL Section. A progress report (ex A4) suggested that Mr Walsh had progressed well in his return to work, although he had been removed from work on MAL because of his high error rate. Mr Walsh said he had been paying too little attention. He would not attract similar criticism now. He had a good attendance record.
In cross-examination Mr O'Donovan asked Mr Walsh questions about his drinking. Mr Walsh's father has an alcoholic history. Mr Walsh himself began to drink moderately in 1980 in Adelaide, aged 22. His consumption rose throughout the 1980s. He was a heavy drinker by 1990. By 1992 he was drinking up to 10 schooners of beer a day after work. He said it only became a problem in 1992 after he lost the job described above in paragraph 10. The detox program he completed in April 1992 (ex A2) resulted in Mr Walsh going off drink for about six weeks but he gradually began drinking again. He said he was aware that he had a problem but it was not a "severe" problem. He was drinking every day again after work and he drank on weekends. He said he was not drunk. He would consume about six schooners.
Dr Powell (ex R6) had recommended that Mr Walsh practise abstinence in 1995. Mr Walsh did not do this. He "watched his intake". Mr Walsh agreed with Mr O'Donovan that Dr Powell was correct to see him as having a physical and psychological dependence on alcohol.
Mr Walsh told Mr O'Donovan that he had a liver ultrasound in 1996 because his doctors were worried about his alcohol consumption. He told Mr O'Donovan that he continued to drink into 1998. He engaged in binge drinking at Christmas and New Year and on occasional weekends. He was drunk on most weekends but he was not drinking before work in 1998. He had three or four schooners at lunchtime. He said that four schooners would not have interfered with his work. He thought he may have had attendance problems early in 1998, some involving not returning after lunchtime.
In re-examination Mr Salmon asked Mr Walsh about Dr Guirguis's notes (ex R5). Dr Guirguis recorded no comments by Mr Walsh about his workplace problems until 23 June 1999. Mr Walsh explained that he thought it was better to try and work matters out himself. It was noted that Mr Walsh had told Dr Bowers (ex A5) about certain workplace problems in July 1999. The tribunal would observe, however, that the version of these events as recorded by Dr Bowers suggests only some ill feeling in the office regarding Mr Walsh being taken off the project. The tribunal notes also that Mr Walsh falsely represented to Dr Bowers that his excessive drinking began only at the time of that episode.
In re-examination reference was made to Mr Castrission's report (ex R3, see paragraph 29 above). There was no mention of Mr Walsh experiencing difficulties with Ms Tatam. Mr Walsh replied that Mr Castrission would have known that Ms Tatam was the problem.
ms u venkatarman
Ms U Venkatarman was called to give evidence. Her statement (ex A6) was highly critical of Ms Tatam's personal and management style. It did mention that Ms Tatam had been instrumental in denying Ms Venkatarman a salary increment in early 2002. From the witness's statement it was clear that Ms Tatam had some concerns with Mr Venkatarman's work performance. Ms Venkatarman's evidence was of limited utility. Not only did she appear to have her own grievances against Ms Tatam, but she was unable to say anything about Ms Tatam's management of Mr Walsh as she and Mr Walsh had never worked together.
mr d stonyer

Mr D Stonyer was called to give evidence. His statement (ex A7) suggested that Mr Walsh was unhappy with his mundane duties in the Section. He said also that "occasionally" Ms Tatam came into the work area and asked where Mr Walsh was. "He was away from his desk from time to time, as indeed all of us were. Her approach was aggressive and her demeanour was agitated". Mr Stonyer said he only discovered after a time that Mr Walsh had had a health scare. He thought Mr Walsh's drinking may have been connected to his prior health and he understood Mr Walsh was on anti-depressant medication. He broached with Mr Walsh the question of his health and suggested he tell Messrs Stonyer and Sherman where he was going when absent so they could explain if anyone asked. Mr Mitchell asked most often. Mr Walsh agreed to do this but "often actually failed to do so" and, Mr Stonyer said, they were left much as they had been earlier. Mr Stonyer suggested that Mr Mitchell had spoken to Mr Walsh loudly and in a critical manner. He thought Mr Walsh was poorly treated. DIMIA was "attacking the symptoms and not the cause". He thought there was no formal counselling or proper inquiry as to why Mr Walsh was absent or why he was drinking. There was "no explanation as to the nature of his duties". The tribunal pauses to note that this is completely inconsistent with later evidence from Mr Vardos about the opportunities given to Mr Walsh to have his then duties redesigned. There was meaningful discourse between Mr Vardos and Mr Walsh about Mr Walsh's duties.
Mr Stonyer said that Ms Tatam was "extremely aggressive" to all three men in the work unit. He saw Mr Vardos who organised a meeting. He considered that Ms Tatam's behaviour improved after that meeting.
In cross-examination Mr Stonyer said he smelt no alcohol about Mr Walsh in the morning but he did drink at lunchtime. He said this was not unusual in DIMIA. He said that Mr Walsh did not appear intoxicated. He agreed that Mr Walsh was absent on occasions without Mr Stonyer knowing where he had gone. He could not say if the periods of absence were extended periods. He said that Mr Walsh was absent from his desk more than Mr Stonyer. There was alcohol on his breath after absences. Mr Stonyer "could not say" whether Mr Walsh drank when absent from the desk. Mr Stonyer agreed that it was appropriate for a supervisor to inquire about an absent employee who may be consuming alcohol at the time. Mr Stonyer said that he personally was not regularly absent from work. He said that filing was in arrears in the section at the time and that Mr Mitchell and Ms Tatam were concerned about that. He said that the three in the work unit had no specific dissatisfaction. However, they were unhappy.
There was a statement dated 28 February 2002 written by Mr P Sherman. This was not admitted as an exhibit and Mr Sherman did not give evidence. For completeness the tribunal has read the statement and finds that it adds little to the material from Mr Stonyer. Mr Sherman suggested that management had not dealt with Mr Walsh in a sufficiently caring and professional manner and this caused Mr Walsh to take extended leave. As will be seen below, the tribunal did not accept this characterisation of DIMIA's handling of Mr Walsh. DIMIA provided assistance and leeway to Mr Walsh of which Messrs Stonyer and Sherman appeared unaware. Mr Sherman castigated DIMIA management for "poor management, arrogant attitudes and manipulative tactics". However, he did not detail any of these in relation to Mr Walsh. Additionally, other first hand evidence from Mr Vardos and Mr Castrission in particular served as a complete answer to such generalised assertions. Mr Sherman asserted that Mr Walsh was not cautioned or counselled about absenteeism or alcohol consumption. Again, other evidence proved Mr Sherman incorrect on that point.
ms s tatam
Ms Tatam gave evidence. She had provided a statement (ex R12). She said she supervised Mr Walsh between November 1998 and May 1999, October 1999 and April 2000 and May and December 2001.
Ms Tatam referred to November 1999 when she discussed work assignments with Mr Walsh. He said he wanted to discontinue MAL systems work as it was technical and mundane. She suggested as an option that he might work in the law enforcement and liaison ("LEL") Unit. He seemed pleased with the suggestion. She said she was prepared to support him as long as he carried out the duties. She also said that if he showed he could do the work allocated to him then she was prepared to offer him more complex matters to handle.
Ms Tatam refuted the claim that Mr Walsh was given no support by management and minimal training. She said that by mutual consent she had facilitated Mr Walsh's move to a position that was more desirable from his perspective. He was given on the job training by Messrs Sherman and Stonyer. That was sufficient as the duties of the position were not complex. She said that she was never approached by Mr Walsh and asked for training, nor did he complain about lack of training.
Mr Walsh had claimed that he was doing the job of three persons for several weeks. Ms Tatam said that this was incorrect. At most Mr Walsh may have worked alone between Christmas and the New Year when others were on leave. Ms Tatam recollected that because of the Year 2000 contingency plans there were more staff on duty than is usually the case over Christmas.
Ms Tatam stated that it was on record that around this time she spoke to Mr Walsh about his frequent, unauthorised absences from the workplace. During these discussions he did not indicate that he was under stress or overworked, but appeared annoyed that she was raising the issue of his absences at all. Ms Tatam said she gained the impression from her conversations with Mr Walsh that he believed that he should be able to choose the work he wanted to do and do it at his own pace and to his own standards. If he was challenged over this he regarded such questioning as interference. She assessed Mr Walsh's work output during this time as negligible.
By mid-January 2000, a number of Mr Walsh's colleagues had indicated to Ms Tatam their annoyance that Mr Walsh was not pulling his weight, that he was frequently absent from the workplace and appeared to be affected by alcohol. Because Mr Walsh had not completed tasks critical to Year 2000 planning, others had to do this work and ended up working extended hours on Christmas Eve. Ms Tatam said this was not an isolated occurrence.
Concerning Mr Walsh's claim that he had falsified medical certificates, Ms Tatam understood that this occurred when Mr Walsh was not under her supervision.
Ms Tatam said that by March 2000, Mr Walsh's absences had escalated. She reconfigured the section staffing arrangements and placed Mr Mitchell in Mr Walsh's workplace to supervise the work of the section. She saw this as a necessary step as Mr Walsh was not carrying out his work and was frequently absent from the workplace. She said that, as she was located in a separate building, she divided her time between the two areas. It was about this time that she formally notified her then Assistant Secretary, Peter Vardos, of her concerns with Mr Walsh.
Ms Tatam denied the when she visited the work area she harassed Messrs Walsh, Sherman and Stonyer. She was concerned that they did not observe the DIMIA clear desk policy, a policy required because they handled classified material. Ms Tatam said she had also given clear instructions on how cases were to be processed and recorded. Messrs Sherman, Stonyer and Walsh did not follow these instructions with a result that there was a backlog of filing and recording which took three months to clear.
Ms Tatam denied that she had never offered Mr Walsh constructive advice or assistance. When she first began supervising Mr Walsh and the MAL unit she spent time with all of the staff to establish a good working relationship and to understand their work. Mr Walsh rejected this approach and subjected Ms Tatam to verbal abuse and on one occasion threw a bundle of paper at her when she asked to see his work on the Year 2000 tests.
Ms Tatam recorded in her statement that she had attempted to constructively engage Mr Walsh to produce a performance agreement. Mr Walsh never completed such an agreement nor engaged in discussions relating to his work performance or other matters. She pointed out that she arranged for Mr Walsh to see a Commonwealth Medical Officer and that she asked what DIMIA could do to help Mr Walsh.
Ms Tatam refuted Mr Walsh's claims that there had never been any concerns or doubts about the quality of his work. His Year 2000 work had to be handed onto others to ensure that the department met the contingency planning deadline.
Ms Tatam refuted absolutely the claim that she had a vendetta against Mr Walsh. It was her view that Mr Walsh, along with Mr Sherman and Mr Stonyer, consistently sought to undermine her position as supervisor and as director of LELMA. She did not regard the statements produced by Mr Sherman, Mr Stonyer or Ms Venkatarman as an accurate account of events.
She discussed Mr Walsh's project. Ms Tatam had responsibility for some of DIMIA's preparation for Year 2000. This brought her into contact with Mr Walsh. Her expertise was in policy, not the technical aspects. DIMIA's Year 2000 initiative was a department-wide program with impacts overseas also. MAL was a critical part of the program. It was crucial to meet deadlines. Ms Tatam was trying to ensure that deadlines were met. She approached Mr Walsh who reacted very badly. He threw papers at her and swore. He remained doing the project for short time longer but a technical operative saw Ms Tatam about certain things that had not been done by Mr Walsh. Mr Walsh was seen to be affected by alcohol. Ms D Munro took over the project and reported that it was way behind schedule. Ms Tatam ceased supervising Mr Walsh and Mr Castrission took over. She again became Mr Walsh's supervisor in November 1999 when he returned from long service leave.
In cross-examination Ms Tatam said that her work over the years had varied. Some positions had involved staff supervision. Some had not. She could recall no instances where she had had problems with any of her supervisors. She had never taken leave for stress at work. Ms Tatam told Mr Salmon that she had had difficulties with one other subordinate additional to Messrs Walsh, Sherman and Stonyer. This had been a Mr Gallway. Mr Stonyer had suggested in his statement (ex A7) that the meeting convened by Mr Vardos had considered Ms Tatam's problems with Mr Gallway. Ms Tatam said that this was incorrect. The meeting was called at Stonyer's request. He had made statements about Ms Tatam to Mr Vardos. He said that Ms Tatam might have been having personal problems at home. In her view he had "crossed the line". She said in response that Mr Stonyer was not a co-operative staff member. He did not bring matters to her attention. Stonyer had said Ms Tatam was slow to deal with papers submitted to her. However, Ms Tatam refuted this and pointed out that on one occasion she had returned a Ministerial submission Mr Stonyer had drafted to be amended. Mr Vardos had not regarded any of the issues raised as substantial. She recollected no discussion about Mr Gallway. She recollected that there was discussion about Messrs Walsh, Sherman and Stonyer. She said they were a group of three who wanted to do self-selected work at their own pace and standard in what was a very busy section.
In relation to MAL Ms Tatam rejected the assessment that she knew less about it than Mr Walsh. Her concern with Mr Walsh's work was that he was devising testing scenarios for MAL and the Year 2000 issue. It was necessary for the actual scenarios to be tested and time was passing. She disagreed that she knew nothing of the day to day operation of MAL.
Counsel for Mr Walsh suggested that Ms Tatam had said nothing adverse in ex R12 about Mr Walsh and his performance in the period from November 1998 to May 1999. Ms Tatam said that she also had problems with Mr Walsh's conduct and work in that period. Mr Salmon proceeded to raise a number of Mr Walsh's other complaints with Ms Tatam. In relation to Mr Walsh's cancer scare, which Mr Walsh said she had no right to know anything about, Ms Tatam said she was aware of the cancer scare, that she could not recall who told her and that she recollected no discussion with Mr Walsh about the matter.
Mr Salmon suggested that Mr Walsh had slammed certain papers down on Ms Tatam's desk, not thrown them at her, as she had suggested. Ms Tatam responded that she was standing by her account of events. She recalled that she had to reassemble the papers. She regarded Mr Walsh's behaviour as unacceptable. She recalled that he threw the papers and she spoke to her director about it. Mr Salmon put to Ms Tatam that her behaviour to Mr Walsh in April 1999 caused Mr Walsh to take time off work. Ms Tatam responded that there was nothing in her behaviour which would have caused Mr Walsh to take time off. Ms Tatam could recall no incident that fitted the description of the incident involving his dictation of the content of a Ministerial submission, given by Mr Walsh in his evidence to the tribunal. Completing a Ministerial submission using dictation from a subordinate colleague is not the style of operation that Ms Tatam uses.
Mr Salmon suggested that Ms Tatam had made no mention of events earlier than April 1999 in her statement dated 25 July 2000 (T6). Ms Tatam explained that in that document she was merely answering Mr Walsh's claims in his statement in support of his claim for compensation.
Ms Tatam agreed with Mr Salmon that her policy experience was not directly connected with Mr Walsh's Year 2000 work.
Asked further about the incident where Mr Walsh allegedly threw papers at Ms Tatam, she said that she had asked Mr Walsh what he had done in his project to see where he was up to with his work. Her aim was to obtain a progress report and look at any required remedial action. She said that the demands were absolutely reasonable. She went on to say that the complaints of others about her supervision are unfounded. The disgruntled four staff members who had provided statements for the tribunal matter were a unique group, in her estimation. She said that the Year 2000 project, on which Mr Walsh was working, had reached a state of urgency by April 1999. There were milestones to be met that were at risk.
ms d munro
Ms D Munro was called to give evidence. She had provided a statement (ex R13). She stated that during the period of her working relationship with Mr Walsh, he regularly turned up to work with the smell of alcohol on his breath, and he regularly drank at lunchtime. She said that frequently he would not return to work after lunch, particularly on Thursday and Friday, or that he would come back under the influence of alcohol. She said Mr Walsh had a drinking problem before Ms Tatam joined the section and that she had spoken to him about it on a few occasions. She said that after his cancer surgery he had begun to drink even more heavily. She said there were times when he would return to the office in mid to late afternoon very drunk. She said that out of concern for him as a peer she tried to provide advice and counselling.
Ms Munro was seated next to Mr Walsh when he was working on the project. She observed that he was not doing the work required for the project. She said that many times she pressured him to do the work as she feared that the project would eventually be passed to her to complete. The Year 2000 team expressed their concern to their director, Ms Ducker, at the lack of progress with the project. She said that Mr Walsh objected to Ms Tatam inquiring about progress with the project. However, she said Mr Walsh continued to make very little progress with the project and was not straightforward with Ms Tatam about that. She said that when Ms Ducker asked for an update on status, Mr Walsh wrote a minute to Mr Vardos advising that the project was on target and he made statements in the minute which indicated that the work was well under way. Ms Tatam continued to ask for regular updates on status which Mr Walsh did not like and shortly afterwards he went on long-term sick leave. Ms Munro was asked to take over the project and she discovered that very little had been done. The advice contained in his minute to the Branch Head was not correct. In fact, she said, the MAL project was way behind all the other system areas in DIMIA.
Ms Munro commented that Mr Castrission provided counselling to Mr Walsh during the short period when he was Mr Walsh's supervisor. Ms Munro also said that she found Ms Tatam to be a very reasonable supervisor in her approach and she was realistic about deadlines for projects. On a personal level she found Ms Tatam to be sympathetic and understanding when staff had problems of a personal nature. She was prepared to adjust working hours and provide leave for compassionate reasons. In oral evidence Ms Munro said that she had offered to make a statement in support of Ms Tatam when she became aware that Ms Tatam's supervision may become an issue in the current proceedings. She did this because she saw Ms Tatam as a good supervisor and thought that such a statement might be helpful to Ms Tatam. She thought there may be differing stories on the record and she was aware that Mr Walsh had complained in 1999 to her and to others about Ms Tatam's alleged interference with him. Mr Salmon asked Ms Munro if she had considered how Ms Tatam had affected Mr Walsh. Ms Munro responded that she did not believe that Ms Tatam was responsible for Mr Walsh's problems. She agreed this was not a medical view. Ms Munro had not seen Ms Tatam have any problems with any other members of staff. She saw Ms Tatam's approach as absolutely appropriate in dealing with Mr Walsh. There had been nothing in Ms Tatam's tone or anything else capable of causing offence. Ms Tatam had told Ms Munro that she was becoming frustrated obtaining information from Mr Walsh on a couple of occasions.
mr p vardos
Mr P Vardos gave evidence. He provided a statement dated 9 July 2002 (ex R14). In that statement he said that, as Branch Head, he was approached by Ms Ducker who expressed concern about the work performance and personal behaviour of a small group of staff in LEMAL, a group which included Mr Walsh. In Mr Walsh's case this included a consistent failure to deliver against assigned tasks, unexplained and prolonged absences from the workplace, a suspicion of being inebriated at the workplace and personally offensive behaviour towards Ms Ducker. Ms Ducker also alerted Mr Vardos to the discovery by her of possible fraudulent use by Mr Walsh of bogus medical certificates. This matter was reported to DIMIA's internal investigations section by Ms Ducker. Mr Vardos did not involve himself with Mr Walsh at this time, at Ms Ducker's request. When Ms Ducker moved onto another position Ms Tatam was appointed as head of LEMAL on acting basis. Soon after her appointment, Ms Tatam began to report to Mr Vardos concerns about Mr Walsh. She also suggested that she could work through the difficulties herself.
As 1999 progressed, however, the concerns about Mr Walsh increased. It seemed to Mr Vardos that there was also a marked deterioration in Mr Walsh's work performance and behaviour. The concerns were similar to those identified by Ms Ducker. He was failing to meet assigned tasks in a timely manner. He had prolonged and unexplained absences from work. He appeared at the workplace in an inebriated state. And he engaged in increasingly offensive behaviour towards Ms Tatam. In addition it appeared that Mr Walsh was using work time to undertake tertiary study without official permission to do so, and was claiming reimbursement of fees from the Department. Mr Vardos wrote that failure to meet assigned targets was a critical issue in that Mr Walsh was undertaking work to prepare the Movements Alert system for the Year 2000 transition.

Early in 2000 Ms Tatam approached Mr Vardos requesting his direct intervention in managing Mr Walsh. She said he was unresponsive to her approaches, belligerent, offensive to her in front of other staff in his work unit and that there was no discernible change in his behaviour despite counselling by her. Mr Vardos agreed to engage with Mr Walsh. At about the same time Mr Stonyer approached Mr Vardos. Mr Stonyer suggested that Ms Tatam was not managing the section very well that there was an increasing level of hostility between Ms Tatam and Mr Stonyer, Mr Walsh and two others. Mr Stonyer also expressed concern about Mr Walsh. He said that Mr Walsh had a range of significant problems and that he had been left to languish over the years with no attempt being made by any of his managers to engage with him and attempt to deal with the problems. Mr Vardos said that he expressed confidence in Ms Tatam, told Mr Stonyer that he was aware of issues between Ms Tatam and Mr Walsh, and that he had matters on foot to engage with Mr Walsh.
Mr Stonyer also asked Mr Vardos to intervene because of strained relations between himself and Ms Tatam. Mr Vardos set up a mediation conference between Mr Stonyer and Ms Tatam. It emerged that Mr Stonyer objected to what he described as the harsh tone of Ms Tatam's engagement with him which he saw as disrespectful. Ms Tatam, for her part, objected to the lack of cooperation and what she described as obstructionism by Mr Stonyer and others in their dealings with her, and in particular with her attempt to manage Mr Walsh's underperformance. Mr Vardos could recall no further approaches by Mr Stonyer on these matters.
In March 2000 Mr Vardos meet with Mr Walsh to discuss the concerns the organisation had about his performance and behaviour and to attempt to put into place a consensus plan of action. Mr Walsh attended with a support person. He suggested that the support person was there in a union capacity, however the support person said that she was not there in that capacity. Mr Walsh listed his concerns as follows:

He felt he was undervalued and given low value work to perform.
He wanted a change to his assigned tasks.
He resented Ms Tatam having him under close supervision.
He was keen to conclude a revised PAL Agreement which would establish a mutual understanding between him and his supervisor of their respective roles and objectives.
He said he had waited for many weeks for Ms Ducker to approve his draft PAL Agreement. On this point Mr Vardos noted that advice from Ms Ducker was that she responded within two weeks but that Mr Walsh never completed his part of the PAL Agreement before her departure from the section.

Mr Vardos told Mr Walsh that he was prepared to address his concerns about his job profile but that he first needed a number of assurances from Mr Walsh:

He would not absent himself from the workplace without permission and he would notify extended absences in advance.
He would not be in the workplace in an inebriated state, and if he was he would be escorted off the premises.
He would diligently apply himself to the tasks assigned to him and meet prescribed deadlines.
He would seek proper, formal approval for his study time and make up for the study time he had taken up to that point without approval.
He would provide evidence of enrolment and fees paid before there would be any reimbursement of tertiary fees.

If Mr Walsh met these conditions Mr Vardos was prepared to consider a job re-design which would attempt to address Mr Walsh's preferences. Mr Vardos elected not to put Mr Walsh on standard hours, ie he continued to allow Mr Walsh access to flex time.
Mr Vardos committed to writing via e-mail the elements of these mutual undertakings. He asked Mr Walsh to acknowledge his agreement by return of e-mail. Some days passed and Mr Walsh had not responded. Mr Vardos asked Mr Walsh's support person, who attended the meeting with Mr Walsh, to speak to Mr Walsh and ask him to respond to the e-mail. She was unable to elicit a response from Mr Walsh. Mr Vardos wrote that he sent Mr Walsh repeated requests asking him to respond to Mr Vardos's e-mail so that they could get on with their agreement. Mr Vardos's e-mail messages contained a request for an automatic confirmation of receipt. Mr Vardos knew that the messages were reaching Mr Walsh but that he was choosing not to respond.
Mr Walsh eventually did respond, however he put a bar on his message preventing it from being copied for file or being forwarded to any other person. There was, therefore, no effective record of any agreement between them. Mr Vardos wrote that Mr Walsh's behaviour at that point was totally disingenuous and deceptive. He had since formed the opinion that Mr Walsh had no intention to engage with him honestly. Mr Vardos wrote that he was increasingly becoming preoccupied with the massive rate of unauthorised boat arrivals and he had less and less time to devote to Mr Walsh's underperformance. It was Mr Vardos's contention that Mr Walsh was expecting Mr Vardos to let the matter of his underperformance slip as many of his senior managers before Mr Vardos had done. Mr Vardos pursued the conclusion of agreement on work and behaviour standards with Mr Walsh who eventually responded to the original e-mail. His response, however, was minimalist.
Upon receiving Mr Walsh's response Mr Vardos instructed Ms Tatam and Mr Mitchell to start the process of re-engineering Mr Walsh's job profile in consultation with Mr Walsh. This was subject to Mr Walsh showing satisfactory performance against his existing assigned tasks and, in particular, demonstrating a responsible attendance record. As a first step Mr Vardos asked Mr Walsh to provide a list of the tasks he believed he had responsibility for. Despite repeated requests, Mr Walsh did not, to the best of Mr Vardos's recollection, provide this input either to Mr Vardos or to his immediate supervisors.
Only a matter of days after that Ms Tatam reported to Mr Vardos that Mr Walsh had not changed any of his habits. He was still absent for extended periods without permission or reasonable explanation. He would offer no explanation when challenged. He continued to ignore his work responsibilities. He appeared to be inebriated or at the very least smelling strongly of alcohol at the workplace on numerous occasions. Mr Vardos instructed Ms Tatam and Mr Mitchell to immediately place Mr Walsh on standard hours, to personally monitor his presence in the workplace, and to record any extended unexplained absences. It was understood that Ms Tatam and Mr Mitchell would visit Mr Walsh's workstation on a random but regular basis to satisfy themselves that he was either at work or had a legitimate reason for not being there.
At this time Mr Vardos attempted to engage Mr Walsh personally to ask him why he was not willing to pursue the agreement that they had reached and to serve notice on Mr Walsh that if he did not adhere to the conditions, Mr Vardos would take more severe disciplinary action. At about this time Mr Vardos also became aware of the considerable amount of resentment among several of Mr Walsh's co-workers who felt that he was not carrying a fair burden and was getting away with proverbial "blue murder" by continuing his old, bad habits without any apparent repercussions. Mr Walsh aborted engaging with Mr Vardos and simply ignored the requests.
This was April-May 2000. Mr Vardos was transferred away from the area to deal exclusively with boat arrivals. However, he was informed from time to time after that by his former staff members that Mr Walsh's behaviour did not change after he left Mr Vardos's branch.
In oral evidence Mr Vardos said that he was aware of Mr Walsh's cancer scare. He had made no assumptions in relation to Mr Walsh's alcohol consumption. He had been gentle in his exchanges with Mr Walsh for that reason. Mr Vardos did not think that work was affecting Mr Walsh's health at the time. He had been aware that Mr Walsh had been directed to the EAP. Mr Vardos said that he had his first personal engagement with Mr Walsh early in the year 2000, however he had been aware of work performance problems involving Mr Walsh since April 1999.
dr d e h lawrence
Dr D E H Lawrence, a psychiatrist, gave oral evidence. He provided a report dated 18 December 2000 (T21) which followed four consultation sessions with Mr Walsh from whom he received a slanted history. He was told nothing of the alcoholism of Mr Walsh's father. He was told that Dr Guirguis had given Mr Walsh time off work but not that this occurred through Mr Walsh presenting forged medical certificates. He was also told that Mr Walsh had begun drinking again after he was taken off the project whereas Mr Walsh had been drinking to excess while engaged on the project. Dr Lawrence accepted that Mr Walsh had on two occasions been involved in distressing situations with supervisors. This led to feelings of being devalued and to low morale. Dr Lawrence diagnosed adjustment disorder with depressed mood and anxiety. Dr Lawrence accepted the slanted version he was given as to how Mr Walsh lost the project. He understood that Mr Walsh had been given free rein on the project by one manager only to have another manager set aside that understanding. He was told nothing of Mr Walsh's underperformance. Dr Lawrence could see no underlying or pre-existing condition, apparently unaware or unmindful of Mr Walsh's history with alcohol. In cross-examination Dr Lawrence said he had no note of Mr Walsh having seen a specialist, Dr Powell, in 1995.
In cross-examination Dr Lawrence was quizzed about his report. He had some information about the damage done to Mr Walsh as a result of his alcohol consumption between 1992 and 1998. He was aware that there was material about possible liver damage. He was asked about Mr Walsh's drinking to excess over many years. Dr Lawrence responded referring to Mr Walsh's overbearing father, the fact that Mr Walsh was himself shy and avoided conflict issues. He thought this may be why Mr Walsh took to drink. In his view work stress could exacerbate Mr Walsh's drinking. In Dr Lawrence's view the drinking issue was being dealt with by detox, etc. Dr Lawrence saw a link between Mr Walsh's drinking and Mr Walsh's work. He saw the drink as self-medication. When asked about Mr Walsh's drinking pattern when he was away from work, Dr Lawrence said that he thought that Mr Walsh drank regardless of work. He said that had not caused Mr Walsh much of a problem. It was put to Dr Lawrence that Mr Walsh was prescribed Aropax in 1998 around about the time he was diagnosed with cancer. It was noted that Aropax is an antidepressant. It was suggested to Dr Lawrence that Mr Walsh's depression was coincident with his diagnosis of cancer. Dr Lawrence responded that it would not be surprising that depression come about with a cancer diagnosis, however the cancer was well over by December 2000 and the depression must have depended by that stage on Mr Walsh's work.
Dr Lawrence admitted that he had no history of Mr Walsh drinking heavily when away from work and having been hospitalised twice when he was away from work and overseas on holiday in 1999. Dr Lawrence proceeded to say that he had some idea that Mr Walsh had drunk a fair bit but was unaware of his having suffered from depression for so long. He conceded that the history that he took may have been lacking, however the concentration at the time was on Mr Walsh's conflict with his supervisor. Dr Lawrence was not aware that Mr Walsh had seen Dr Saboisky. Dr Lawrence had no idea that Mr Walsh had changed psychiatrist with a view to obtaining a more favourable report. Mr Walsh had not told Dr Lawrence that he had been criminally charged with forgery of medical certificates.
In response to questions from Mr Salmon, Dr Lawrence saw the cause of the adjustment disorder as the arrival of a new supervisor in Mr Walsh's section.
dr j saboisky
Dr Saboisky then gave evidence. In these reasons for decision it has already been mentioned that Dr Saboisky wrote two reports relating to Mr Walsh. The content of these reports was discussed earlier (see paragraph 41 above). Dr Guirguis had referred Mr Walsh to Dr Saboisky with a view to Dr Saboisky treating Mr Walsh, assisting him to give up excessive alcohol consumption. Dr Saboisky's assessment in ex R7 in 1999 was that Mr Walsh had been drinking alcohol for 20 years and that he thoroughly enjoys it. Further, he said that Mr Walsh's drinking had recently caught up with him in response to a work difficulty. Dr Saboisky agreed in 1999 to undertake counselling but had no great hopes that Mr Walsh would succeed. In cross-examination Dr Saboisky explained what he meant in saying that the drinking had caught up with Mr Walsh. He said that in his view alcohol caused problems to Mr Walsh in the form of work difficulties. Dr Saboisky did not think that work caused Mr Walsh's alcoholism. Dr Saboisky did concede that in 1999 Mr Walsh's work absence was associated with a supervisor at work.
dr w glaser
Dr W Glaser, another psychiatrist, also gave oral evidence. He had provided a report dated 18 August 2001 (ex R9). In preparing his report Dr Glaser had the benefit of having perused much of the material that was before the tribunal. Consequently, his report was far more useful than the report by Dr Lawrence. Dr Glaser had a notably accurate history and was far better informed of aspects of Mr Walsh's work performance and problems. Dr Glaser's opinion was as follows:
"Mr Walsh is a 42-year-old public servant who is claiming incapacity for work, which appears to have affected him for much of last year (2000), particularly the second half.
"He further claims that his psychiatric difficulties of the time were caused by 'interference' in his work duties by a couple of supervisors, commencing at approximately the middle of 1999. Statements by two of his fellow-workers appear to support his perceptions that these supervisors were somewhat high-handed and unsympathetic in their attitudes and that the workplace involved a considerable workload and a degree of disorganisation.
"However, the available documentation and aspects of Mr Walsh's account revealed considerable pre-existing psychiatric difficulties. There appears to be little doubt that he has been drinking heavily for approximately 20 years, with the development of a number of serious complications of alcohol abuse including significant liver damage, gout, disturbances in his circulation, etc. Approximately 10 years ago, his driver's licence was cancelled, due to a drink-driving offence. A year or two later, he experienced the break up of a six-year relationship, at least partly in response to his continued drinking.
"Shortly after this, in approximately 1992, he required detoxification for his drinking condition. He attributed this, at the time, to distress in discovering the position, which had been promised to him, had been given to a 'favourite' of the director. However, one wonders whether this distress was really not more a result of his break up with his girlfriend. It is also possible that he was passed over for the position concerned because of work performance difficulties related to his drinking.
"In any case, he continued to drink to excess for the next seven years without any further evidence of 'stresses' from the workplace. He himself admits that this drinking caused him to become a most unreliable worker, with his leaving his workplace several times a day in order to attend the local pub.
"There is little doubt that his poor work performance and his general unreliability were a product simply of his ongoing and escalating drinking behaviour. The actions of his employer aimed at checking on his whereabouts and monitoring the work that he was doing, were simply a response to his increasingly poor work performance, even though he perceived them as 'interference'.
"Indeed, he has persistently shown an attitude of denial regarding his drinking difficulties and only scant compliance with attempts to treat and rehabilitate him. The most recent example of this occurred at the interview with myself when, despite the noticeable smell of alcohol on his breath, he denied that he had been drinking that particular day. This attitude of denial has lead [sic] to his blaming others for his drinking difficulties, something which is classically found in people with long-standing alcohol abuse.
"There is thus no good evidence, at this stage, of any relationship between Mr Walsh's psychiatric problems and his work environment. While it is possible that a couple of his managers might have been somewhat assertive in attempting to deal with absenteeism and unreliability, their responses would be normal, understandable and appropriate, given his own denial of the true extent and nature of his difficulties. It could not be, in anyway, construed as being unusual stressors in his workplace."
Dr Glaser addressed the question of whether Mr Walsh suffers from an underlying or pre-existing condition relevant to the claimed condition. He said that in his opinion Mr Walsh suffers from chronic, quite severe alcoholism, which has affected him, probably for approximately 20 years. He said that, considering Mr Walsh's father's extensive history of alcohol abuse, genetic factors would be a strong factor in the cause of Mr Walsh's difficulties. He said that Mr Walsh's chronic alcohol abuse was only partially in remission. It was possible that the alcoholism would be a life-long problem. He did not see Mr Walsh's psychiatric condition as caused or aggravated to a material degree by some incident associated with Mr Walsh's employment, or his work generally. He considered that Mr Walsh's alcoholism had caused considerable incapacity for work, especially in 2000. This was because of his epileptic fit, his requirement for alcohol detoxification procedures, etc. However, none of this incapacity was work-related. Dr Glaser said that Mr Walsh had told him that he was currently performing his normal duties, however Mr Walsh was losing contact with his alcohol and drug counsellor and this should be remedied.
In cross-examination Mr Salmon suggested that it was only after the arrival of Ms Tatam as his supervisor in 1999 that Mr Walsh took time off work and that he had not taken time off work that year because of alcohol problems. Dr Glaser said that he had considered the possibility of the supervisor being the cause of Mr Walsh's psychiatric problems but he felt that the explanation he provided in his report was more likely the correct explanation of Mr Walsh's problems. In response to cross-examination, Dr Glaser said, in relation to Dr Lawrence's report, that he felt that report was limited because of the lack of an extensive history of Mr Walsh's alcoholism.
COUNSEL'S SUBMISSIONS
In final submissions Mr Salmon submitted that, despite the fact that Mr Walsh may have been a very heavy drinker for over a very long period of time and despite the fact that at the end of 1998 he had a problem with cancer in his mouth, and despite the fact that he may have alcoholism as an underlying factor that existed for the whole of the relevant time and may still exist there was inescapable temporal connection between the dispute arising with Ms Tatam during April 1999 and the fact that that caused some or all of the absences from work thereafter and some or all of the need for treatment, which Mr Walsh had up until his eventual full return to work in June 2001.
Mr Salmon continued by saying that there were no problems until April 1999. Mr Walsh then went off work in April. He then said that the first month that Mr Castrission was there Mr Walsh was still undoubtedly not complying with what would be ordinary behaviour, but after that first month, and certainly after he saw Dr Saboisky in June, there were two months where he had no problems. He was back at work with Mr Castrission as his supervisor. He had had treatment from the workplace advisers and was back at work. He then went away and there was no doubt that while he was away he drank too much, but there was no suggestion that he regarded that as anything more than incidental to his very heavy drinking. He was not blaming anyone for that except himself. He then came back and found he had to work with Ms Tatam and the problem arose again. He then did all sorts of things to cover himself and he deteriorated quite severely.

He was then away from work for a very lengthy time and went into rehabilitation. He was completely away from the previous stresses. He then returned to work and had been back at work up until the time of the hearing. Mr Salmon said that one did not need to go any further than ordinary temporal arguments to see that there was a connection with work.
Mr O'Donovan, for the respondent, refuted much of the material put forward by Mr Salmon. He suggested looking at Mr Walsh's history over time. He commenced by referring to Mr Walsh's alcohol history. As Dr Glaser ascertained, Mr Walsh had an alcoholic father. There was a genetic link between Mr Walsh and his alcoholism. Mr O'Donovan indicated that in 1992 Mr Walsh had submitted himself for detox. Mr O'Donovan called attention to the referral of Mr Walsh to a physician in 1995 in association with his alcoholism. Mr O'Donovan referred to the referral of Mr Walsh for an ultrasound to check the condition of his liver in 1996. To this point the alcohol problems are clearly independent of anything to do with Mr Walsh's work, said Mr O'Donovan. However, he said there could be exacerbation or temporary aggravation periods that may have followed.
Mr O'Donovan then referred to the problems Mr Walsh had in the workplace as early as 1998, problems identified in the evidence from Ms Munro. These were the same problems as later became a major issue and they were on the agenda well before the arrival of Ms Tatam.
Mr O'Donovan then referred to the cancer problem that was diagnosed in October 1998. He referred to the prescription of Aropax and to the development of a major depression. He noted that Ms Tatam was still not a factor in Mr Walsh's workplace. At this time Mr Walsh's drinking became heavier after his surgery for cancer, according to Ms Munro. This led Mr Walsh to forge medical certificates. Dr Guirguis identified the development of the depression and his notes included no report of any work-related stress until after April 1999. There was no medical evidence of any incapacity for work on the part of Mr Walsh because of stress. Any incapacity for work may have been because of alcohol consumption. The only medical evidence of the period available, said Mr O'Donovan, was in the form of forged medical certificates.
Mr O'Donovan referred to the report by Mr Castrission when Mr Walsh returned to work in May 1999. This report showed that Mr Walsh's cancer scare had defeated Mr Walsh. Mr O'Donovan suggested that the tribunal look at the facts that Mr Walsh had a sympathetic boss, tasks he liked, and he was situated away from Ms Tatam. Yet Mr Walsh was still performing unacceptably at work and reported to his general practitioner in June 1999 that he was suffering from work stress. Mr O'Donovan said that he used this as an excuse for his problems when the real problem was his alcoholism. He submitted that Mr Walsh blamed work stress for his problems when there was no such stress. Mr O'Donovan referred to the evidence of Mr Walsh binge drinking whilst he was absent on holidays. During this period he was hospitalised twice in association with his alcohol consumption. Mr O'Donovan recalled that Mr Walsh had blamed a travel guide for encouraging Mr Walsh to drink whisky. The reality was, said Mr O'Donovan, that Mr Walsh was incapable of controlling his drinking.
In December 1999 Mr Walsh returned to work to an unacceptable job, from his perspective. Within weeks, however, he was away from work with the assistance of the forged medical certificate. Ms Tatam was not involved in his supervision at this time. Just prior to Christmas in 1999 Ms Tatam counselled Mr Walsh about his performance, however Mr Walsh ignored this counselling.
In the next four months, that is early in 2000, Mr Walsh was subjected to more intense supervision. Ms Tatam, reasonably in Mr O'Donovan's view, wanted to know what Mr Walsh was doing, and where he was. There was no report of any resulting anxiety until March 2000, according to Dr Guirguis's notes. In April 2000 Mr Walsh was interviewed about the forged medical certificates. This was the first he knew of his forgeries being discovered. He was understandably disturbed.
In May 2000 Mr Walsh saw Dr Guirguis to apologise for the forged certificates. He had an epileptic fit and broke his jaw. Mr Walsh went into hospital and this was the beginning of his extended time away from work. Mr O'Donovan submitted that if there was anything at work that these events could be related to, it was the events relating to the internal investigation concerning the forging of the medical certificates. It appeared that he was then off work for about a month before returning for a period at work in which there were no incidents identified in his evidence, and there were no reports by anybody else. He then stopped work, required an increase in his Aropax and had hospitalisations in August and September in order to detox from massive alcohol abuse. He then went into rehabilitation, as he admitted in his evidence, primarily to assist him with his criminal charges. He then returned to work in January 2001 after the criminal charges had been disposed of in December 2000. Mr O'Donovan noted that it was after the disposition of the criminal charges that Mr Walsh's depression lifted and he was then able to return to work.
Mr O'Donovan submitted that this chronology was for the most part inconsistent with Mr Walsh's account. He submitted that there was very little contemporaneous evidence supporting Mr Walsh's attribution of a particular incidence of work to his medical condition, his drinking, his alcohol and his depression. Mr O'Donovan said that all of these things appeared to arise independently and operate independently of events at work. He said that Mr Walsh had serious problems long before Ms Tatam supervised him and long after she supervised him. He had problems also when he was on leave. He had problems when he was on holidays. This led to the respondent's primary submission, that Mr Walsh's work made no material contribution to his conditions. At best, said Mr O'Donovan, work was the setting in which the effects of the conditions manifested themselves and Mr Walsh subsequently tried to rationalise his behaviour by reference to external matters.
Mr O'Donovan then submitted that, if the tribunal concluded that there was some material contribution to Mr Walsh's condition caused by his employment, for example the internal investigation into the forgeries, he would submit that those actions were reasonable disciplinary actions. The internal investigation of the serious forgery of medical certificates was, in Mr O'Donovan's view, reasonable disciplinary action. The referral of those matters to the Director of the Public Prosecutions was an appropriate response and should be treated as a reasonable disciplinary action. Thus, said Mr O'Donovan, to the extent that those matters affected Mr Walsh and caused him to be depressed or caused him to abuse alcohol, the matter remained non-compensable.
Mr O'Donovan submitted also that, if the tribunal were to accept that there was a material contribution resulting from the actions of Ms Tatam and Mr Mitchell, their actions in supervising Mr Walsh were also reasonable disciplinary action. Ms Tatam and Mr Mitchell were taking action in relation to Mr Walsh to ensure that he was performing his duties and completing his project as required. He regarded that as interference, however Mr O'Donovan submitted that it was reasonable action on the part of a supervisor to ensure that Mr Walsh was performing to an appropriate standard. This was therefore action for the purpose of promoting discipline.
Mr O'Donovan noted that from December 1999 the only complaints that Mr Walsh was able to verbalise were that his managers wanted to know where he was during work hours. Mr O'Donovan said that, of course, they had good reason for wanting to know where he was because usually he was down at the pub consuming alcohol, at morning tea, at lunchtime, and in the afternoons. Mr Mitchell was appointed to be Mr Walsh's close supervisor to ensure that he complied with the reasonable standards of the department and to promote discipline on Mr Walsh's part and the part of his co-workers to ensure that they provided reasonable standards of work attendance and work performance.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal finds that Mr Walsh has sustained no injury in accordance with the definition of "injury" in s 4(1) of the Act. This is the primary finding resulting from a series of subsidiary findings explained below.
The tribunal notes in the first instance that there were formal difficulties with Mr Walsh's claim. He said in the claim particulars in T5 that he first noticed the claimed condition in 1992 and in oral evidence associated the anxiety depression with events that then occurred in the workplace. Section 53(1) and (3) of the Act is in the following terms:
Notice of injury or loss of, or damage to, property
53. (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice-as soon as practicable after the employee's death.
…
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
In this case the psychiatric disease to which Mr Walsh's DIMIA employment was said to have contributed had its onset in 1992 but there was no notice in writing of the disease until 13 July 2000. By no stretch of imagination can this have been notice given as soon as practicable after Mr Walsh became aware of the injury in the form of the disease. The applicant provided no evidence or submissions relating to the exculpatory provision, s 53(3) of the Act. However, as the tribunal has found against Mr Walsh on the merits, and s 53 was not raised by the respondent, the tribunal will detail its findings on the merits. The tribunal finds that Mr Walsh suffers from chronic alcoholism, as diagnosed by Dr Glaser, and not adjustment disorder with depressed mood and anxiety, as diagnosed by Dr Lawrence. The tribunal was unimpressed by an attempt by Mr Salmon in his final submissions to convince the tribunal that Dr Glaser took a biased, one-sided view of Mr Walsh's psychiatric status. Mr Salmon suggested that Dr Lawrence was not guilty of the same error. The tribunal considers the opposite to be the case. Dr Glaser, unlike Dr Lawrence, did not concentrate only on such work factors that might conceivably be causal factors relating to Mr Walsh's condition. Dr Glaser reflected Mr Walsh's perceptions of his problems and their causes accurately and fully in his report and took into account a far broader array of medical and employment evidence than Dr Lawrence had access to. While it is true that, in stating his final opinion, Dr Glaser was inclined not to give great credence to Mr Walsh's own assessment of his situation, Dr Glaser justified that approach fully in stating his opinion and the reasons for that opinion.
The tribunal finds that Mr Walsh has suffered from chronic alcoholism since approximately 1982. This was Dr Glaser's opinion based on the evidence before him, including evidence relating to physical diseases associated with alcohol consumption.
The tribunal finds that the employment incidents cited by Mr Walsh, particularly his dealings with Ms Tatam and Mr Mitchell, played no relevant part in the causing or exacerbation of his alcoholism. The tribunal accepts Dr Glaser's assessment that the onset of Mr Walsh's alcoholism had a genetic basis relating back to his father's like condition. Its onset, in any event, preceded any DIMIA-related event affecting Mr Walsh.
The tribunal finds that Mr Walsh was unable to show on the balance of probabilities any actions or conduct by Ms Tatam or any of Mr Walsh's other supervisors that exacerbated or aggravated his chronic alcoholism. This is mainly because Mr Walsh was unable, when asked, to point to any interactions between himself and Ms Tatam that could reasonably be seen to have affected his alcoholism. Mr Walsh's complaints about the situation, and the tribunal's assessment of those complaints, were as follows.
First, he said that Ms Tatam came to him and interrupted him when he was engaged on the project (see paragraph 16 above). The tribunal doubts that this, even if accurate, amounted to more than a usual incidence of working in a section within a hierarchical organisation. In any event, Mr Walsh's own evidence was that he saw Ms Ducker about it and the matter was resolved.
Second, Mr Walsh referred to the alleged incident, denied by Ms Tatam, where he dictated to her the content of a Ministerial submission (see paragraph 20 above). Mr Walsh was unable to explain satisfactorily to the tribunal why such an incident would-be of such concern to him, or how it would contribute to a worsening of his alcoholism.
Third, Mr Walsh described Ms Tatam's attitude to him as "average, perhaps a little autocratic" (see paragraph 20 above). Again, the tribunal was unable to derive from Mr Walsh's evidence how a general management style, even if accurately described in such terms, could have contributed to the worsening of Mr Walsh's alcoholism.
Fourth, Mr Walsh professed concern caused by Ms Tatam allegedly attempting to log on to the DIMIA mainframe computer and experiencing difficulty doing so (see paragraph 22 above). The tribunal is at a loss to understand why any problems Ms Tatam may have experienced in logging on were of any interest or concern to Mr Walsh. If he was trying to communicate that it fell to him to assist her, then this was in no way explicit and, even if this was the case, it was no more than would be expected of any colleague, part of whose job is to be of assistance to other colleagues, as is implicit in the Australian Public Service Code of Conduct in s 13 of the Public Service Act 1999.
Fifth, Mr Walsh was critical of Ms Tatam's reactions, which he described as "childish", when she witnessed a testing program associated with the Year 2000 project (see paragraph 23 above). He admitted that she was in no way being unpleasant to him. His complaint appeared to be that she was slowing the process down. Again, the tribunal cannot find in that episode anything that would satisfy it that Ms Tatam's conduct exacerbated Mr Walsh's alcoholism. At best it suggests an intolerance on Mr Walsh's part towards Ms Tatam.
Sixth, Mr Walsh suggested that, if Ms Tatam did not get what she wanted, she would make a person like Mr Walsh a scapegoat (see paragraph 24 above). However, he was unable to point to any specific instances where this occurred.
Seventh, Mr Walsh suggested that in and after June 1999 Ms Tatam stamped up and down and kept demanding things from him (see paragraph 26 above). His reaction was to deposit the files relating to the project on her desk and tell her she could do the job herself. The tribunal finds, on the basis of highly credible evidence from Ms D Munro, who had to take over the project, and Mr Vardos, that it was strongly suspected that Mr Walsh had not made appropriate progress with the project and that it was necessary to check and, if necessary, remedy the situation. The tribunal finds that Mr Walsh had unrealistic expectations when he assumed that he would be left to conduct and complete the strategically important Year 2000 project without accounting for progress to the chain of management above him. The tribunal finds that Ms Tatam was doing no more than her duty in inquiring about the progress of the project.
Eighth, Mr Walsh alleged that he was never counselled or assisted by Ms Tatam (ex R11). However, in his own evidence he referred to a counselling session on 22 December 1999 (see paragraph 34 above).
Ninth, Mr Walsh complained that, in 2000, Ms Tatam visited his remotely located workplace on a random basis to see whether he was present at work (see paragraph 35 above). He saw this as unprofessional supervision. In reality Ms Tatam was, as Mr Vardos explained in his evidence, only doing what the senior management regarded as necessary. The tribunal finds that DIMIA management had good reason to introduce measures to ensure that Mr Walsh was not absent from the workplace during work hours. Mr Walsh suggested (see paragraph 38 above) that when Ms Tatam conducted these visits she scolded those who were absent "like schoolkids" and would "rant and rave" if they were not at their desks. The tribunal has some doubts about this evidence. While Mr Stonyer was critical of Ms Tatam in a number of respects, he did not describe her conduct in similar terms. He described her as aggressive in her dealings. From the evidence of Mr Vardos and Ms Tatam the tribunal has concluded that Messrs Walsh, Stonyer and Sherman did not conduct themselves as model employees. Indeed, the workplace where the three were located seems to have engendered in the three an uncooperative, uncollegiate attitude that would try many a supervisor.
Ms Tatam and other management attempted to react positively to Mr Walsh's requests for more meaningful work, but he failed to deliver the required quality product, or enter into the appropriate preliminary agreements. So far as DIMIA management, apart from Ms Tatam were concerned, the evidence of Messrs Castrission and Vardos suggested that Mr Walsh was extended a great deal of leeway when he engaged in drinking before and during work hours and unauthorised absences from work. These managers were conscious of the cancer scare that had beset Mr Walsh and even appeared somewhat sympathetic regarding his alcoholism. He was placed on standard hours, for example, only after they were sorely provoked by Mr Walsh's lack of response to their assistance which they offered him to assist in dealing with his problems. The tribunal notes that management in DIMIA directed Mr Walsh towards assistance through the EAP program and by referral to the Commonwealth Medical Officer. He was not left unassisted as Mr Stonyer believed.
The tribunal endorses the submissions put by Mr O'Donovan and finds that Mr Walsh's alcoholism presented itself as a problem almost constantly from 1992 to 2001, with periods of remission lasting only weeks at a time. The tribunal accepts Dr Glaser's assessment that DIMIA management did not contribute to Mr Walsh's disease in any way other than by appropriate management action. To the extent any such action did contribute, the tribunal finds that it was reasonable disciplinary action in accordance with the definition of "injury" in s 4(1) of the Act.
The tribunal, again in accord with Mr O'Donovan, finds that the diagnosis of cancer caused Mr Walsh to suffer from a depressive disorder for a lengthy period after October 1998. The best evidence of this was Mr Walsh's own evidence in ex R2 when he was interviewed by the DIMIA internal investigations unit. The tribunal further finds that Mr Walsh's legal problems stemming from his forging of three medical certificates were far more likely to have exacerbated his alcoholism in 2000 than any actions by Ms Tatam or other managers. These legal problems were of Mr Walsh's own making and, as any sort of causal contribution to his problems, are not compensable.

The tribunal did not accept Mr Salmon's thesis that there was a temporal connection between Mr Walsh's workplace absenteeism, long leave and inebriation on one hand, and his contact with Ms Tatam on the other. The tribunal has already explained why it could see nothing in Ms Tatam's management of Mr Walsh that could reasonably have exacerbated his alcoholism. In addition, the tribunal has identified other problems of Mr Walsh's own creation that better explain his absenteeism and drinking. Mr Salmon's thesis offers no explanation for Mr Walsh's holiday binge that caused him to end up in hospital.
CONCLUSION
the tribunal has found that Mr Walsh's disease of chronic alcoholism is not an injury as defined in the Act. This means that Mr Walsh does not qualify for any compensation under the Act.
DECISION
The tribunal affirms the decision under review. The applicant is entitled to no costs in respect of this application.
I certify that the 133 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M D Miller AO
Signed:         .....................................................................................
  Associate
Dates of hearing  29 - 30 July 2002
Date of decision  29 October 2002
Counsel for the applicant         Mr B J Salmon QC
Solicitor for the applicant         Lander & Co, Barristers and Solicitors
Counsel for the respondent     Mr D O'Donovan
Solicitor for the respondent     Sparke Helmore Solicitors