Wayne Kevin Johns and Comcare
[2015] AATA 164
•20 March 2015
[2015] AATA 164
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0008
Re
Wayne Kevin Johns
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 20 March 2015 Place Melbourne The Tribunal affirms the decision under review.
..........................[Sgd].........................................
G. D. Friedman, Senior Member
CATCHWORDS
COMPENSATION – Australian Taxation Office – Law Interpretation Specialist –depressive disorder – breach of code of conduct – whether applicant entitled to compensation for incapacity – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether aggravation of existing condition
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5A(2), 5B, 14(1)
CASES
Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16
Comcare v Martinez (No. 2) [2013] FCA 439
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
Hay v Comcare [2014] AATA 325
Radulovic and Comcare [2010] AATA 777
Smith v Comcare [2013] FCAFC 65
Tippett v Australian Postal Corporation [1998] FCA 335
REASONS FOR DECISION
G. D. Friedman, Senior Member
20 March 2015
Wayne Johns joined the Australian Taxation Office (ATO) on 10 March 1982 and spent nearly 31 years as an ATO officer before his retirement on invalidity grounds on 21 February 2013. On 2 May 2013 he completed a claim for compensation for Depression/Anxiety which he said was sustained on 11 December 2011 and was caused by Burnout at work. On 31 October 2013 the respondent made a reviewable decision to refuse the claim on the basis that the condition of major depressive disorder, single episode had arisen from reasonable administrative action taken in a reasonable manner by the employer when Mr Johns was sent an email on 8 December 2011 about alleged discrepancies in the recording of his attendances at work.
Mr Johns has applied to the Tribunal for review of the decision. He also claimed that his condition was aggravated by actions of the ATO in 2012.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A of the SRC Act provides:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by the employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment,
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
Section 4(1) of the SRC Act provides:
…
aggravation includes acceleration or recurrence.
ISSUES
There was no dispute that Mr Johns suffers from a psychological condition which, on the basis of the medical evidence, may be characterised as major depressive disorder, single episode, and is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by his employment with the ATO. The condition constitutes a disease for the purposes of s 5B of the SRC Act.
The first issue before the Tribunal is whether the injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, which would prevent Mr Johns from receiving compensation in accordance with s 5A of the SRC Act as his medical condition would not come within the definition of injury. This involves consideration of whether the email of 8 December 2011 informing him of alleged discrepancies regarding his attendance and time recordings during the period 23 June 2011 to 28 October 2011 constitutes reasonable administrative action taken in a reasonable manner in respect of his employment, and, if so, whether Mr Johns’ medical condition was suffered as a result of the administrative action.
The second issue is whether Mr Johns’ condition was aggravated by alleged actions of the ATO, including: the time taken to be recommended for invalidity; the chronic nature of the condition; breaches of privacy, a work re-structure; ostracism in the work place; and wrongly being found guilty of dishonesty.
DOES THE EMAIL OF 8 DECEMBER 2011 CONSTITUTE REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF MR JOHNS’ EMPLOYMENT?
Mr Johns told the Tribunal that he grew up in Warragul in Victoria and after Year 12 he completed a Bachelor of Business degree at Monash University. After graduation he commenced employment with the ATO in 1982 at the base level in the Withholding Tax area in Melbourne, and received promotions in the Assessing area, then Small Business and Appeals. In about 2000 he was promoted to Executive Level 2.1 (EL2.1) and in about 2008 he moved to the Losses & CGT Centre of Expertise in the Law & Practice team, Casselden Place, Melbourne, where he provided high level advice on taxation issues.
He stated that when he commenced working in the CGT area he received no training, which was stressful because he was required to give expert advice in areas for which there was no precedent. He was engaged in conflict with a number of managers at the ATO. He stated that from the early 2000s he had worked at home on a full-time basis, mainly because of the distance from his home in rural Victoria to the office in Melbourne. He said that this arrangement was convenient for him and had been approved by his manager. Mr Johns stated that his wife and daughter became ill in about 2010 which required him to take a large amount of carer’s leave and other leave. He described himself as a perfectionist who worked long hours and was constantly tired, which caused him to make mistakes in his work.
Mr Johns explained that in about April 2011 he was told to change his working arrangements to two days a week at home and three days at Casselden Place, Melbourne. He said that he was not happy about the new arrangements but did not complain. He stated that in early December 2011 his manager (Mr G Roumeliotis) told him about concerns with his recording of his attendances at work, and that he should expect notification from Mr Roumeliotis’ manager (Ms M Haly, Assistant Commissioner, Law & Practice) that the matter was under consideration. Mr Johns told the Tribunal that he was not shocked or upset at the prospect of an investigation because he knew that he had been under-claiming on his attendance records on about 40 occasions as a result of working additional hours and not recording this on the ATO’s electronic time management system (TMS), so he was confident that he could address any supposed discrepancies. He said that he also knew that the swipe-card system at Casselden Place for recording arrival and departure times was inaccurate and unreliable, as was the TMS. He said that he was not particularly concerned about the warning, and continued to perform his normal duties. He said that he even told a temporary junior officer on his team about the warning, and would not have done so if he was embarrassed or scared about the impending notice from Ms Haly.
Mr Johns acknowledged that on 8 December 2011 Ms Haly sent him an email in the following terms:
…
It has been brought to my attention that there are a number of discrepancies with your attendance and your time recordings in TMS during the period 23 June 2011 to 28 October 2011.
I have been provided with copies of your Log on/Log off, swipe card and TMS data and these have been consolidated in the attached spreadsheet below. The original source documentation is also attached.
…
I have also attached a copy of the minutes of the L&CGT CoE team meeting of 20 October 2011 which notes advice from George Roumeliotis to staff regarding the need to correctly recording [sic] their times in TMS.
…
Further, in reviewing the above data, I am concerned with some of the times you are accessing ATO systems, particularly in the early hours of the morning and whilst on leave.
Having now received this information, I must decide whether to –
a) take no further action; or
b) deal with the matter through general management processes such as counselling, issue direction etc; or
c) arrange to investigate the matter in accordance with the ATO Procedures for Determining Whether an Employee Has Breached the APS Code of Conduct.
In the event that option c above is taken, this will involve a formal determination of whether there has been any breach of the Code of Conduct and, if there has, consideration will then be given to imposing one or more sanctions.
The purpose of this advice is to allow you an opportunity to put forward any information you wish me to consider before I make my decision. Your response should be provided to me by close of business Wednesday 14 December 2011. If you wish to discuss this matter I will be happy to do so once I have received your written response.
…
Mr Johns said that although he was not surprised to receive the email, he felt insulted but did not react badly, and he was not visibly upset or distressed. He said that he saw no need to contact Ms Haly or involve his union, and commenced working on his response as he was only given until 14 December 2011. He described the contents of the spreadsheet and the alleged discrepancies amounting to more than 40 hours as offensive and ridiculous and noted that the spreadsheet did not take into account relevant information such as the times that he attended the Blood Bank. He stated that even though he was ill because of the ongoing work and home issues he sought to expedite the matter.
In respect of his physical condition at the time, Mr Johns explained that he was already burnt out so badly from other work-related issues during 2011 that his illness was inevitable at any time. He noted that the issues included struggles with his workload; errors that he had made in giving advice; changes in the type of work he was performing; a proposed re-structure within the ATO that had possible adverse consequences for him; and family issues, which pushed him over the edge. He said that the timing of his injury was not referable to the email, which was coincidental and inconsequential, and the connection was temporal but not causal.
Mr Johns said that on 12 December 2011 he finally sought help because he realised that he could not cope any longer and felt overwhelmed. He consulted his general practitioner (Dr M Spillane) who prescribed Lexapro anti-depressant medication, and he was referred to Dr S Eaton, consultant psychiatrist. He was given a medical certificate that he was unfit for work for two weeks. Mr Johns said that he did not mention the email of 8 December 2011 to Dr Spillane because it was not important to his medical condition, and described the email as …just a nuisance to deal with when I was unwell but that’s all it was because I knew I had been under-claiming. He said that there was persistent unreasonableness in the email of 8 December 2011 which was not administrative action: it was merely a preliminary communication that may have led to administrative action.
Mr Johns said that he became aware that on 15 December 2011 Mr Roumeliotis advised Ms Haly of a potential misconduct issue arising from the alleged discrepancies in his time recordings and recommended a formal investigation. He said that on about 20 December 2011 he received a Notice of Suspected Breach of the APS Code of Conduct dated 16 December 2011 from Ms Haly at his home address informing him of the investigation and inviting him to make a written statement in response by 11 January 2012.
Mr Johns described the investigation as irresponsible because at the time he was tired and the process was stressful. He said (in his submissions) that the timing of the notification of the investigation less than a week before Christmas caused him immediate distress and was …both foolish and inconsiderate because: he had to seek an extension of time to prepare a response; it brought back memories of poor treatment by a selection committee just before Christmas some years earlier; his wife became distressed and ill because of the commencement of the formal investigation; he had to spend time over the Christmas period preparing a response with no access to ATO systems instead of enjoying festivities; and the investigators knew he was on stress leave and should have held the investigation in abeyance until his health improved.
Mr Johns stated that work-related stress was a significant factor in his decision to take sick leave from December 2011. He said that he had no history of mental illness prior to being burnt out in December 2011 from a lack of sleep, with the timing of the investigation causing him additional stress. He said that the investigation was conducted incompetently and was contributed to by a flawed electronic time recording system.
Despite his difficulties Mr Johns provided a response on 20 January 2012. He stated that he disagreed with the initial determination by the investigating officer (Ms C Sutherland) on 1 May 2012 that he had breached s 13(1) (behave honestly and with integrity) and s 13(2) (act with care and diligence) of the Code of Conduct, and he provided a response on 17 May 2012. He said that the finding that he had been dishonest had destroyed any trust he had in the ATO and he feared that he would be dismissed from his employment. He said that during his period of sick leave there was no communication from the ATO or any sympathy for his situation. In response to the matters raised in the investigation Mr Johns stated that he had accessed the ATO system after hours, on weekends and while on leave to remain up to date with his work despite his significant amounts of unplanned leave and personal ill health from depression that affected him through poor concentration and other physical symptoms. He did not consider that doing extra work constituted a breach of the Code of Conduct, although he conceded that his records of time-keeping may not have been accurate on some days.
In respect of the additional information he provided to Ms Sutherland, Mr Johns said that this persuaded her to issue a revised determination on 15 June 2012 which concluded that he had breached s 13(2) of the Code of Conduct but not s 13(1). He told the Tribunal that in July 2012 he accepted a reprimand to end the matter without financial or other penalty because the finding that he had acted dishonestly had been withdrawn.
Mr Johns stated that after attending Dr Spillane on 12 December 2011, because of his medical condition, he did not return to work and on 21 February 2013 the ATO decided to approve his invalidity retirement. He said that the email of 8 December 2011 did not constitute administrative action and, in any case, was not reasonable and was not taken in a reasonable manner.
Under cross-examination Mr Johns agreed that by under-claiming on his attendance records he had not recorded all his times of work accurately, and that this constituted a breach of the agreement entered into by officers at the EL classification, although he did not believe that this could be considered to be dishonest because he had not derived a benefit.
Mr Roumeliotis, Senior Director, Technical & Case Leadership, Private Groups & High Wealth Individuals, ATO, made a written statement dated 17 June 2014 in which he said that he became Mr Johns’ manager in April 2008. He stated that at the time Mr Johns had a full-time home-based work arrangement (HBW), and most communication was by telephone or email. Mr Roumeliotis explained that as a relatively senior officer Mr Johns was given a considerable degree of trust and independence in undertaking his duties in the same manner as other officers in his team. Mr Johns did not indicate that he needed additional support, although such support would have been given if requested.
Mr Roumeliotis said that Mr Johns was a good technician but his work was not always presented in a style or standard expected of an EL2.1 officer. His work often required extensive re-writing. In March 2011 the HBW arrangement was reviewed and a decision was made that from April 2011 Mr Johns should work from home two days a week and three days a week with the rest of the team in Melbourne. Mr Roumeliotis stated that Mr Johns was unhappy with the change and there was a deterioration in the standard of his work in the period up to December 2011. He noted that Mr Johns was often absent from work on the days he was supposed to attend the office. In particular in the period between 1 April 2011 and 12 December 2011 Mr Johns took 51 days’ leave for the days he was required to attend the office. This comprised purchased annual leave, carer’s leave and personal leave.
In respect of the times recorded by Mr Johns, Mr Roumeliotis observed that there were discrepancies in TMS, so on 15 December 2011 he recommended to Ms Haly that an internal investigation be initiated through the ATO misconduct procedures. He ceased as Mr Johns’ manager in April or May 2012 and said that he had no further contact with Mr Johns.
Ms C Sutherland, Employee Relations, ATO, made a written statement dated 1 July 2014 in which she said that prior to February 2013 she was the manager of the investigations team at ATO. She stated that on 16 December 2011 she was asked by Ms Haly to undertake an investigation into alleged breaches of the Code of Conduct under the Public Service Act 1999 by Mr Johns, in particular whether Mr Johns had failed to accurately record his actual times of commencing and ceasing duty between 23 June 2011 and 28 October 2011. Ms Sutherland stated that Ms Haly gave written notice of the investigation to Mr Johns on 16 December 2011 and he provided a written response on 20 January 2012 in which he gave details of a number of issues faced by him and his family. Ms Sutherland said that in response she was mindful of his situation and attempted to minimise any stressors during the investigative process.
Ms Sutherland stated that in her initial determination dated 1 May 2012 she found that Mr Johns had breached the Code of Conduct in that he had failed to behave honestly and with integrity in the course of his employment (s 13(1) of the Code of Conduct); and had failed to act with care and diligence (s 13(2) of the Code of Conduct). She said that on 17 May 2012 Mr Johns provided a response in which he took issue with the conclusions and provided additional information about the time recording and his psychological condition. Consequently on 15 June 2012 Ms Sutherland issued a revised determination in which she concluded that Mr Johns had not breached s 13(1) of the Code of Conduct but had breached s 13(2) of the Code of Conduct. She recommended a sanction of no higher than a reprimand, and stated that Mr Johns told her he would be happy to resolve the matter by way of this penalty. On 30 July 2012 the ATO imposed a reprimand in accordance with her recommendation.
Ms S Tomlinson made a statement dated 4 March 2015 in which she said that in December 2011 she was a case manager with the Health and People Management Team, ATO. She stated that on 12 December 2011 she received an email from Ms Haly about attendance issues regarding Mr Johns. She said that Mr Roumeliotis had told Ms Haly that Mr Johns’ general practitioner had advised that Mr Johns needed to stay home because of stress from work and family issues. Ms Tomlinson said that Ms Haly told her that Mr Johns had not responded to the email of 8 December 2011, and she advised that it was Ms Haly’s decision whether any action should be taken. Ms Tomlinson added that when Ms Haly indicated that she would proceed to issue the Notice of Suspected Breach, there was no evidence on the medical certificate that Mr Johns was unfit to participate in the process or to respond to the Notice. Ms Tomlinson said that she arranged for a health consultant to become involved.
Dr M Spillane, general practitioner, stated in a report dated 31 May 2013 that he saw Mr Johns on 12 December 2011 in a distressed state with symptoms of anxiety and depression. He took a history of Mr Johns being under pressure at home and at work and that the pressure had been building for a long time. In the letter of referral to Dr Eaton he stated that Mr Johns was under pressure at work and had developed significant depression. Dr Spillane’s clinical notes show a further consultation on 10 January 2012 which includes as one of the reasons for the visit: Depression is worse.
Dr P Smith, consultant psychiatrist, stated in a report dated 11 September 2012 that Mr Johns gave a history of ceasing work in December 2011 following a number of manifestations of occupational dysfunctioning. These included allegations of absenteeism, errors of judgment, poor work performance and conflict with managers throughout 2011. Dr Smith noted that Mr Johns reported that the formal investigation into his work attendance was most stressful. Dr Smith diagnosed mixed anxiety/depressive disorder.
In a further report dated 10 December 2012 Dr Smith stated that Mr Johns continued to suffer from a diagnosable and permanent condition which impacted adversely on his occupational functioning. Dr Smith concluded that Mr Johns had a total incapacity for work, and recommended invalidity retirement.
Dr Eaton stated in a report dated 13 March 2012 that Mr Johns had been referred to him for assessment and treatment. He took a history of Mr Johns feeling burnt out as a result of difficulties experienced since before Christmas 2011 involving stresses at home and at work. Dr Eaton said that that investigative action by ATO management about Mr Johns’ attendance at work was a blow to his self-esteem and caused anxiety about his work performance. Dr Eaton diagnosed a chronic depressive episode with co-morbid anxiety, and recommended invalidity retirement.
Dr D Felman, consultant psychiatrist, stated in a report dated 12 March 2012 that Mr Johns gave a history of a deterioration in his mental state in October 2010 because of personal stressors involving family members. She also referred to a worsening of his psychological state in December 2011 arising from financial difficulties and work stressors, which were the consequence of the request to change his HBW and from the investigation into his alleged discrepancies regarding his recording of the time of commencing and ceasing work. Dr Felman concluded that Mr Johns presented with a range of symptoms which may possibly represent a mixed affective state on the background of a likely adjustment disorder with mood and anxiety symptoms.
In a supplementary report dated 29 March 2012 Dr Felman said that she was unable to comment on whether Mr Johns would have been able to meet his attendance obligations in the period 23 June 2011 to 28 October 2011 as she did not see him until February 2012.
Consideration
Was the email of 8 December 2011 reasonable administrative action in respect of Mr Johns’ employment?
In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Gray J stated at [31]:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
In Hay v Comcare [2014] AATA 325 the Tribunal held at [38]:
I think the answer ultimately lies in the evidence of Mr McEwan (supported by
Mr Robinson) as to the purpose of the meeting on 6 April 2010. I have already noted
Mr McEwan said in his statement “my intention was to have an informal discussion about her apparent failure to hand over the case as directed and next steps”... I also noted Mr Robinson said in his statement that it was his “understanding that the meeting was really just Gary trying to resolve the situation.” In other words, evidence presented by Comcare confirms the meeting was not about considering any sort of action in connection with Ms Hay’s employment. That might come later, but not until
Mr McEwan got to the bottom of what had occurred… I would add that I am not satisfied the meeting could be characterised as something that was done in connection with the sort of actions referred to in s 5A(2)(a)-(d). Things had not yet reached that stage.
When Ms Haly became aware of alleged discrepancies in the time recording by Mr Johns during 2011 and possible breaches of the APS Code of Conduct and of the agreement with officers at the EL classification regarding the accuracy of time recording, she took action by advising Mr Johns by email on 8 December 2011 of the suspected breach and possible investigation for the purposes of s 5A(2) of the SRC Act. Mr Johns identified other ways of dealing with the matter, such as a direct or informal approach by Ms Haly or Mr Roumeliotis, which he believed would have been preferable. However, unlike the facts in Hay which involved an informal discussion, the Tribunal concludes that the action of sending the email represented an initial step in the disciplinary process. This was an appropriate response in the circumstances of the alleged discrepancies in the time recording by Mr Johns and was reasonable disciplinary action taken in respect of Mr Johns’ employment (s 5A(2)(d) of the SRC Act) or was action reasonably done in connection with a reasonable disciplinary action (s 5A(2)(e) of the SRC Act).
Therefore the Tribunal finds that the sending of the email of 8 December 2011 was reasonable administrative action taken in respect of Mr Johns’ employment.
Was the action taken in a reasonable manner?
In Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 the Full Federal Court held at [79] that the test for reasonably is whether the thing done was done reasonably and not whether it could have been done more reasonably or in a different way. In Comcare v Martinez (No. 2) [2013] FCA 439 Robertson J agreed with the approach taken in Bropho and stated at [82]:
I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
The email of 8 December 2011 by Ms Haly outlined her concerns about discrepancies with Mr Johns’ attendance and time recordings in TMS over a four-month period. The email contained detailed documentation and a spreadsheet containing all relevant information and the options available to Ms Haly for dealing with the matter. The email provided Mr Johns with an opportunity to respond by 14 December 2011. The process was in accordance with accepted procedure as stated in paragraph 2.1 of the Procedures for determining whether an employee has breached the Australian Public Service (APS) Code of Conduct. The Tribunal is satisfied that there was nothing untoward and the administrative action was not irrational, absurd or ridiculous (Radulovic and Comcare [2010] AATA 777 at [79] following Repatriation Commission v Webb (1987) 13 ALD 421). In assessing the circumstances objectively the Tribunal considers the action to have been taken in a reasonable manner.
Was the disease suffered as a result of the administrative action?
In Smith v Comcare [2013] FCAFC 65 the Full Federal Court held that the Tribunal is required to determine whether there is liability for compensation under the SRC Act before determining the date of injury.
The Tribunal takes into account that in early December 2011 Mr Roumeliotis warned Mr Johns that he may receive an email about a possible investigation into alleged breaches of the Code of Conduct, and the next day the email was received by Mr Johns.
The Tribunal takes into account Mr Johns’ evidence that he felt insulted to receive the email but did not react badly, and saw no need to contact Ms Haly or his union. However four days after receiving the email Mr Johns attended his general practitioner in a distressed state with symptoms of anxiety and depression. His own evidence was that he was burnt out during late 2011 as a result of work-related issues and family matters, and that his illness was inevitable at any time, although he carried on his normal duties in 2011 to the best of his ability. Mr Johns did not identify any other factor that may have pushed him over the edge and led him to seek medical attention on 12 December 2011.
On 12 December 2011 Dr Spillane certified Mr Johns as unfit for work and referred him to Dr Eaton for psychiatric treatment. There had been no previous diagnosis of any psychiatric condition. Mr Johns reported to Dr Smith that there was conflict with a number of managers in the workplace throughout 2011, and Dr Smith recorded that the investigation into alleged absences from work was considered by Mr Johns to be stressful. The Tribunal notes that Dr Eaton referred to Mr Johns having difficulties since before Christmas 2011 and recorded stress at work due to bullying and the investigation about his attendance which had been a blow to Mr Johns’ self-esteem and caused anxiety about his work performance. Dr Felman referred to Mr Johns reporting distress when the investigation began into the alleged discrepancies in his time recording.
After considering the medical and other evidence the Tribunal finds that Mr Johns’ psychological condition was first diagnosed in December 2011 and continued throughout 2012 and into early 2013. There was a temporal and causal connection between the email of 8 December 2011 and the medical condition, which was suffered as a result of the administrative action taken on 8 December 2011 advising Mr Johns of a suspected breach of the Code of Conduct and a possible investigation into the alleged breach, followed by each step of the investigation process.
Conclusion
The Tribunal finds that Mr Johns’ disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
The Tribunal accepts that other work-related issues described by Mr Johns as occurring in 2011 also contributed to his psychological condition. However in Hart v Comcare [2005] FCAFC 16 the Full Federal Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the SRC Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
Consequently the Tribunal finds that Mr Johns’ depressive disorder does not come within the definition of injury in the SRC Act and he is not entitled to compensation.
WAS THE CONDITION AGGRAVATED IN 2012 AFTER THE INITIAL INJURY?
Mr Johns told the Tribunal that his psychological condition was aggravated in 2012 as a result of: ostracism from the ATO; the re-structure within the ATO with the consequent insecurity of ongoing employment; his perceived lack of value by the ATO; a breach of his privacy; and the investigation by the ATO into alleged breaches of the Code of Conduct which initially found him to have acted dishonestly. He said that these factors, which were referred to by Dr Eaton as having an impact on his mental state, made the condition worse because it lasted longer than it should have, and this prolongation constitutes an aggravation of the condition.
Mr Johns said that the ostracism was perceived by him to have arisen at a number of levels within the ATO and included a lack of communication (other than formal requests for sick leave certificates etc) from Mr Roumeliotis, Ms Haly or his team members as to his welfare or to update him about the proposed re-structure within the ATO. He said that the ostracism, the re-structure and the investigation resulted in him developing self-worth issues and a perceived lack of value to the ATO, which did not appreciate his ability and was not keen for him to return to work. He said that the investigation was handled incompetently by Ms Sutherland, who was required to change her initial determination because of errors and incorrect documentation that he had identified in response to her findings that he had acted dishonestly when recording his attendances at work. He stated that the timing of the investigation was unfair because he was on sick leave when he was notified of the investigation, and no attempt had been made to seek clearance from his doctors that he was in a fit state to participate or to prepare a response.
Mr Johns said that on 21 July 2012 he complained that the ATO had abused its power in relation to the supplementary report sought from Dr Felman in March 2012. He said that the ATO concluded that correct processes were not followed when he was not provided with a copy of the request to Dr Felman, and that Ms Tomlinson and another officer were counselled for contributing to the breach of privacy by not following established procedures.
Mr Johns maintained that prolongation of his condition represented an aggravation because he suffered the illness for a longer period than would otherwise have been the case. He also said that a recurrence, even to a lesser degree, constitutes aggravation, relying on Tippett v Australian Postal Corporation [1998] FCA 335. He submitted that in effect he was suffering continuing recurrences because of immediate and persistent aggravating stressors inflicted on him by the ATO. He said that his condition became chronic after 12 December 2011 which worsened his condition by giving him the likelihood of recurrences in his condition, rather than his injury representing an isolated episode. He said that for an aggravation it is not necessary that only work factors are significant, relying on Mellor v Australian Postal Corporation [2009] FCA 504. He said that even after he was away from the workplace from 12 December 2011 on sick leave he was subject to stressful events inflicted by the ATO.
In a letter of referral to Dr Eaton dated 12 December 2011 Dr Spillane stated that he had prescribed Lexapro anti-depressant but that he felt that he is going to have a long-term illness.
In a report dated 1 May 2012 Dr Eaton said that there had been no improvement in Mr Johns’ condition over the previous few months, with continuing issues including low mood, anxiety, frequent preoccupation and ruminations, plus diminished concentration and attention. Dr Eaton said that he had changed the medication. On 5 June 2012 Dr Eaton stated in a report that there had been an improvement in Mr Johns’ sleep. He said:
His speech was clear and coherent and of a normal rate and flow. There were no morbid wishes or psychotic thoughts. His insight was good.
I have not made any changes to his treatment…
On 21 January 2013 Dr Eaton reported to Dr Spillane:
Wayne has continued to remain well. He feels much brighter now as he can see the light at the end of the tunnel. His level of function remains reasonable but he is still troubled by his limited concentration and attention. He has a number of hopes and plans for the future.
…
In view of his settled state I will be discharging him. I would recommend he continues on the Quetiapine for at least another 12 months…
On 31 May 2013 Dr Eaton said in a report to the respondent that as of January 2013 (when Mr Johns was discharged form his care) Mr Johns was in partial remission from his depressive illness, with a brighter mood and a better outlook for the future, although the symptoms still impacted on the quality of his life. Dr Eaton referred to the presence of continuing factors such as work stress (insecurity of the disciplinary review and the possibility of invalidity retirement) and family stress which have contributed to the chronicity of his condition.
On 31 January 2014 Dr Eaton stated in a report to Mr Johns that Mr Johns had described a number of employment-related factors that caused stress, anxiety and emotional upset in 2012/2013, including a perceived ostracism by work colleagues; management re-structuring leading to a new manager; insecurity with both the potential loss of home-based work through re-structuring and the lack of regular feedback about the re-structuring; breaches of privacy that led to an increased fear of bullying by management; and a determination of dishonesty in the investigation into work attendances. Dr Eaton said that these factors would have had an impact on Mr Johns’ mental state. He said that the ongoing insecurity in regard to the future; the perceived lack of value to the ATO; and the fear of bullying were clear stressors that would have a negative impact on Mr Johns’ psychological condition. Dr Eaton described these as perpetuating factors because they contributed to the prolongation of the illness.
Dr Eaton concluded that he did not have any evidence that Mr Johns’ condition altered in severity secondary to the stressors, although he said that it would be reasonable to suggest that the stressors played some part in the prolongation of the illness.
Dr Smith stated in his report dated 11 September 2012 that since the previous assessment in February 2012:
…on the basis of the history as self-reported, there has been continuation of unstable mood states, persistent moderate depressive symptoms and co-morbid anxiety in the form of generalised anxiety, mild phobic anxiety and persistent ruminative preoccupied thinking.
Dr Smith said that the prognostic outlook was guarded, and the co-morbid symptoms of anxiety and depression …have now been present for about two years and are unremitting.
Consideration
The Tribunal takes into account that when Dr Spillane referred Mr Johns to Dr Eaton on 12 December 2011 he stated that he had started Mr Johns on Lexapro …but I feel that he is going to have a long-term illness. Dr Eaton’s clinical notes do not refer to the stressors identified by Mr Johns in 2012 such as a re-structure within the ATO or a breach of privacy. In April 2012 Dr Eaton referred to Mr Johns feeling ostracised, but the notes do not indicate that this worsened Mr Johns’ condition. Dr Eaton identified other stressors such as the medical condition of Mr Johns’ family members as being more significant during 2012. In June 2012 (shortly after the initial determination by Ms Sutherland) Dr Eaton reported an improvement in Mr Johns’ sleep. On 21 January 2013 Dr Eaton reported that Mr Johns…has continued to remain well. He feels much brighter now… On 31 May 2013 Dr Eaton noted that in January 2013 Mr Johns was in partial remission from his depressive illness, and stated: His mood was brighter and he had a better outlook on the future. Dr Eaton discharged Mr Johns in January 2013.
On all the material the Tribunal is reasonably satisfied that throughout 2012 Mr Johns continued to suffer from the same psychological or psychiatric condition, rather than suffering a recurrence. Therefore it was not aggravated by any of the factors claimed by him, and the Tribunal is not satisfied that the condition was made worse because it lasted longer than it should have.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. .............................[Sgd]......................................
Associate
20 March 2015
Dates of hearing 5 and 6 March 2015 Advocate for the Applicant Self-represented Counsel for the Respondent
Solicitors for the Respondent
Ms C Dowsett
Australian Government Solicitor
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