WILLIAMS And COMCARE
[2012] AATA 902
•21 December 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/5252
General Administrative Division )Re: MARTIN WILLIAMS
Applicant
And: COMCARE
Respondent
TRIBUNAL: Deputy President J W Constance
DATE: 21 December 2012
PLACE: Melbourne
CORRIGENDUM TO DECISION [2012] AATA 902
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth), decision dated 19 December 2012 is amended as follows:
- In paragraph 91, replace the words:
The following issued require determination.
with:
The following issues require determination.
- In paragraph 114, replace the words:
Further I am satisfied that Mr Walker had not informed Mr Thomas that Mr Williams did not wished to meet with him
with:
Further I am satisfied that Mr Walker had not informed Mr Thomas that Mr Williams did not wish to meet with him
.....................[sgd J W Constance].....................
Deputy President
[2012] AATA 902
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5252
Re
Martin Williams
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Deputy President J W Constance
Date 19 December 2012 Place Melbourne The reviewable decision of Comcare made 5 October 2010 denying liability to pay compensation to Mr Williams in respect of Generalised Anxiety Disorder is set aside.
In substitution for the decision set aside it is decided that:
1)on 17 September 2008 Mr Williams suffered an injury, namely Generalised Anxiety Disorder, as defined by the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
2)Comcare is liable to pay compensation to Mr Williams in respect of the injury in accordance with the provisions of the Act.
........[sgd J W Constance]...............
Deputy President J W Constance
Catchwords
COMPENSATION – Generalised Anxiety Disorder – whether employment contributed to a significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7 and 14.
REASONS FOR DECISION
Deputy President J W Constance
19 December 2012
introduction
From 1996 until 2009 Mr Williams held a senior position with the Commonwealth Scientific and Industrial Research Organisation (CSIRO).
In 2008 Mr Williams suffered a Generalised Anxiety Disorder, a condition from which he has continued to suffer. Mr Williams has claimed compensation in respect of this condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has rejected this claim and Mr Williams has applied to the Tribunal to review this decision.
For the reasons which follow Comcare’s decision will be set aside and it will be decided that Mr Williams is entitled to compensation in respect of the injury suffered by him.
evidence and findings of fact
Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Williams. I am satisfied that Mr Williams was an honest witness who gave his evidence to the best of his knowledge and belief. I am satisfied also that he is a meticulous person by nature who made careful note of the events of which he gave evidence and that he had reason to do so at the time. I have taken into account that in some instances Mr Williams kept contemporaneous notes of some instances in the form of emails to others and/or himself.
Mr Williams commenced employment with the CSIRO in 1996. From October 2006 onwards he held the position of Deputy Chief – Commercial CSIRO Textile and Fibre Technology[1]. It was the responsibility of Mr Williams to ensure that the Division’s intellectual property was properly commercialised. Mr Williams worked at the Belmont site of the Organisation in Geelong, Victoria.
[1] Exhibit R18.
In March 2007 the Division was subjected to a routine review of its science and capability performance. Mr Williams was advised that it was strictly a review of science quality. He was not called to appear before the Review Committee.
Mr Williams perceives that the findings of the Review Committee, which were circulated within the Organisation, were inaccurate, particularly findings as to deficiencies within the commercialisation capability of his Division, being his area of responsibility. He believes that the Review Committee was given incorrect information by some of his colleagues within the Organisation, including Dr Nigel Johnson (Chief – Division of Fibre and Textile Technology) and Dr Bill Humphries (Deputy Chief (Science) of the Division). Mr Williams perceived that the findings of the Committee were “a damaging professional slur [on him] and defamatory”.[2]
[2] Exhibit R25 para.10.
As a result of the findings of the Review Committee, Mr Williams felt extremely stressed. His stress was increased by his perceived need to obtain the support of colleagues to protect himself from possible future attacks upon him in his position as Deputy Chief of his Division. In particular he believed that in making their presentations to the Review Committee, Dr Johnson and Dr Humphries had demonstrated that they were antagonistic towards him and that Dr Humphries could not be trusted to treat him fairly or reasonably.
On 15 May 2008 it was announced that the Division of Fibre and Technology and another Division would be merged into CSIRO Materials Science and Engineering. In this merger process the number of staff positions in the three Divisions would be reduced. During the restructuring which followed this announcement Mr Williams was given conflicting advice as to the position he would hold in the new structure and as to the positions which would be available to him. At various times between 15 May 2008 and 7 July 2008 Mr Williams believed that there was a position for him within the new structure; at other times he believed there was not.
On 20 May 2008 Dr Humphries was appointed to the position of Officer-in-Charge, Belmont Site, CSIRO Materials Science and Engineering. This appointment was made by Dr Calum Drummond, the Chief of the Division. The appointment was made without a formal interview and/or selection process. This was confirmed by Mr Humphries in his statement made 29 February 2012.[3]
[3] Exhibit R16.
On 29 May 2008 Dr Humphries told Mr Williams that that he had spoken with Dr Drummond and that he (Mr Williams) would have a position in the merged Division. At that stage Mr Williams believed that he had a position in the new structure.
Dr Humphries says that he does not specifically recall telling Mr Williams that he had a position. He says that he did tell Mr Williams that he was “quite optimistic that [he] would have a position within the CSME Division, or within the Niche Manufacturing National Research Flagship area or Corporate Business Development.”[4] Dr Drummond does not recall telling Dr Humphries that Mr Williams would have a position in the new Division although he does not deny that he did.[5] For the reasons previously given I have accepted the evidence of Mr Williams in this regard referred to in the preceding paragraph.
[4] Exhibit R16 para.17.
[5] Exhibit R22 para.7.
On 2 June 2008 Mr Williams telephoned Dr Drummond and was advised by Dr Drummond that he could not confirm that he would have a position. At this stage Mr Williams believed that he did not have a position in the new structure.
On 7 July 2008 Mr Williams received a letter from Dr Humphries advising him that he was potentially surplus to CSIRO staffing requirements. Upon receiving this letter Mr Williams immediately spoke to Mr Timothy Head as he believed that Mr Head would have received a similar letter advising him that he was potentially surplus. At that time Mr Williams had worked with Mr Head since 1997[6] and was Mr Head’s direct supervisor. Mr Head told Mr Williams that he had not received a similar letter and that three days previously, on 4 July 2008, he had been told by Dr Humphries that he would be in a business development role and by Dr Niall Finn that he would be placed in a business role working with him. Mr Williams believed that the position to which Mr Head was told he would be appointed was that which he (Mr Williams) held at the time and that consequently he did not have a position in the restructured organization.
[6] Evidence of Mr Head, transcript p.481.
When Mr Head was told that he would be appointed to a business development role he had not been interviewed or otherwise consulted concerning this appointment.[7] Until he spoke to Mr Head on 7 July 2008 no-one had advised Mr Williams of Mr Head’s planned appointment.
[7] Evidence of Mr Head transcript p.482.
On 14 July 2008 Mr Williams was advised that all business development and administration positions (including that to which Mr Head had been appointed) were to be open to application. At this time Mr Williams believed that he may have an ongoing position.
On 15 July 2008 Dr Humphries told Mr Williams that Dr Stephen Morton had said that he and Mr Damien Thomas could choose between two business development jobs available, one in the Niche Manufacturing Flagship and one in CSIRO Materials Science and Engineering. Dr Morton was a CSIRO Group Executive at the time. Mr Williams believed that there would be a position for him.
On 29 July 2008 Dr Drummond told Mr Williams that the position in the Niche Manufacturing Flagship would not be part of the restructuring process and therefore would not be available to him. Dr Drummond told Mr Williams that he should look outside of CSIRO for a position. At this stage Mr Williams believed that he did not have a position in the restructure.
On 1 August 2008 Dr Johnson told Mr Williams that he had a position of Enterprise Business Development Manager that was ideal for him. Further Dr Johnson told Mr Williams that there would be an interview process but that this would be a formality. At this stage Mr Williams believed he had a position in the new structure.
Mr Williams advised Ms Leanne Currie of CSIRO Corporate People & Culture of his conversation with Dr Johnson. On 5 August 2008 Ms Currie sent an email to Mr Williams which said, in part:
Apologies for the email contact. I could not reach you on the phone late this afternoon (Tuesday) and I will be interstate tomorrow.
I spoke to Tania Harris, P&C Manager of Business Services and she is certainly putting together the requirements for the Senior BD role with Nigel Johnson. I can now confirm, as I indicated to you may be the case, that the role will be made open to all those that may not secure an appropriate role in the CMSE restructure, and others that maybe [sic] impacted by other Organisational changes. I appreciate that this may not be what you want to hear.[8]
[8] Exhibit R24, para.8, attachment ‘LC2’.
Following this announcement of the interview process Mr Williams applied for the position of Director of Business Development and Commercialisation within the new Division. He was interviewed for this position on 19 August 2008. His application was unsuccessful; another member of CSIRO staff, Mr Damien Thomas, was appointed. Mr Williams learned that that he had been unsuccessful in late August 2008.
Mr Williams also applied for the position of Business Development Manager, CSIRO Materials Science and Engineering, Belmont. This position was similar to the one held by Mr Williams. Mr Head also applied for this position.
Mr Williams and Mr Head were interviewed for the position by a selection panel which included Dr Finn who had earlier told Mr Head that he would be appointed to a business role. Mr Thomas was a member of the selection panel also.
On 9 September 2008 Mr Head was appointed to the position he and Mr Williams had applied for. Mr Williams perceived this appointment as a fait accompli. He formed this belief on the basis that Mr Head had been advised previously by Dr Finn that he was to be appointed to a business role and that Dr Finn was a member of the selection panel. Mr Williams perceived that he had been treated unfairly as Mr Head did not apply for the position until after the closing date for applications and as, in his view, Mr Head did not meet the majority of the selection criteria.
On the same day Mr Williams spoke by telephone to Mr Thomas. Mr Thomas informed Mr Williams that he had not been successful in his application for the Business Development Manager position. Mr Thomas also said words to the effect:
there are no other positions that you can apply for in CSIRO Materials Science and Engineering … you will have to go back to that Leanne woman that you have been talking to find something.[9]
Mr Williams understood the reference to “that Leanne woman” to be a reference to Ms Leanne Currie, to whom he had spoken previously concerning his future with the CSIRO.
[9] Exhibit R25 para.41.
On 10 September 2008 Dr Johnson telephoned Mr Williams and advised him that he would not be interviewed for the position of Enterprise Business Development Manager, another position which was to be filled in the new Division. At this time Mr Williams believed that there were no positions available to him in the new structure.
On 15 September 2008 Mr Williams received an email from Ms Maureen Bloot’hoofd, Senior People & Culture Advisor of CSIRO. It was sent to all staff at the Belmont site, not to Mr Williams personally. It was headed “Paul Walker here tomorrow” and stated:
This is to let you know that Paul Walker (our new P&C Manager) will be on site tomorrow for the whole day.
If you have anything you’d like to discuss with Paul, or would like to simply just meet him and say hello – please feel most welcome to stop by and see him.
He hopes to spend more time here in the near future and is keen to get to know you all.[10]
As the email was not directed to him personally, and as he had been advised by Mr Thomas that there were no positions available to him in the Division, Mr Williams did not take any action to meet with Mr Walker. At the time Mr Walker was the manager of the People & Culture Division of CSIRO.
[10] Exhibit A1 p.147.
At 4.41pm on 15 September 2008 Mr Williams received an email from Mr Walker headed “Appointment tomorrow”. It read:
I understand that you may not be available tomorrow while I am visiting the site. I wanted to catch up with you to talk about the redeployment process, and to discuss a number of options that are, or may become, available for your consideration. I would like to ensure that you are given every opportunity to consider fully any possibility that may be open to you, so if you find that you do have a short time in your schedule when we can speak, that would be much appreciated. Your involvement in the redeployment process is crucial to its success.
Best wishes
Paul Walker
People & Culture Manager[11]
When Mr Williams received this email he had not been contacted by anyone requesting that he meet with Mr Walker. Upon reading it he believed that he did not have a position in the Division and that he was being manipulated.
[11] Exhibit A2 p.33.
On the same day Mr Walker forwarded a letter to Mr Williams which stated, in part:
The purpose of this letter is to confirm the verbal advice that you have been given that you have not been successful for a role with CSIRO Materials Science and Engineering.
As we indicated to you last week, we are in the process of exploring redeployment opportunities for you across the Organisation, taking into account your personal preferences in terms of suitable locations and type of role.
To date, I have not been able to identify any suitable alternative opportunities. … If no opportunities have been identified by the end of this week, I will prepare a redundancy case to Geoff Garrett for his approval.[12]
The statement that Mr Walker had been unable to identify “suitable alternative opportunities” for Mr Williams was contrary to the advice in Mr Walker’s email of the same date. It was also contrary to the content of an email sent to Mr Williams the following day, referred to later in these reasons.
[12] Exhibit A2 p.34.
By this time some of those people dealing with Mr Williams were aware that he was suffering considerable stress as a result of the changes which were being implemented within the Organisation. In his statement made 13 February 2012[13] Mr Thomas said, in part:
On 16 September 2008 I, along with Mr Paul Walker, Human Resources Manager, commenced driving to Geelong (Belmont) to see the Applicant to discuss the 2 to 3 positions Business Development Manager positions that had become available in Clayton. I had been advised by Mr Bill Humphries, Research Program Manager and Officer-in-Charge of the Belmont site, that the Applicant had been stressed, and I felt it would be important to meet with him face to face to see how he was tracking and discuss other options available to him, including the Business Development Manager positions in Clayton. I am not sure who arranged the meeting. On the drive down to Geelong on the morning of the 16 September 2008, we were advised that the Applicant was not well and was not in the office that day. As I had only intended to visit Geelong to see the Applicant, we decided to turn around and head back to Clayton. I did not have any dealings with the Applicant after this time.[14]
[13] Exhibit R14.
[14] Exhibit R14, para 13.
At 3.02pm on 16 September 2008 Mr Williams received an email from Mr Thomas headed “Meeting Today”. It read
Dear Martin,
I hope there was no confusion about my proposed meeting with you today. Paul had intended to talk to you and informed me that you did not wish to meet him. I thought my involvement may have encouraged you to attend the meeting.
The simple purpose of the meeting was to discuss the redeploment [sic] process and the existing vacancies within CMSE. As you know we have 3 other business development positions currently available in Clayton.
I was hoping to discuss your level of interest in those positions before we advertised them.
Even though we did not meet today would you let me know if you have any interest in those business development positions. Please note preference provisions may not apply.
Thanks,
Damien Thomas[15]
At the time he received this email Mr Williams had still not been contacted about a meeting with Mr Thomas or Mr Walker. Upon reading this email his belief that he did not have a position and that he was being manipulated was confirmed.
[15] Exhibit A1 p.149
At 5.28pm on 16 September 2008 Mr Williams sent an email to Mr Thomas which read as follows:
Hi Damian [sic],
Firstly I would like to explore possibilities here with you.
To explain some of the confusion, I was not told that you were planning to come down at all. The message that I got from Carole was that Paul was coming down and “would like to talk with me”, not that he would like to talk with me about redeployment. I had sort of resigned myself to my fate because you did mention last week that there were no other positions that I could apply for in CMSE. It is encouraging to know that you have three BD spots.
I phoned earlier and will give you a call again tomorrow.
Thanks for being in touch.
Martin[16]
At the time he sent this email Mr Williams was feeling extremely stressed and still believed that he did not have a position in the new Division. He believed that writing this email was a means of defending himself against manipulation.
[16] Exhibit A1 p.150.
Mr Thomas did not respond to this email. He said that he did not do so as he expected to speak to Mr Williams the following day. When he was unable to speak to Mr Williams he still did not respond.[17]
[17] Evidence of Mr Thomas, transcript p.441.
In the early morning of 17 September 2008 Mr Williams suffered severe chest pain. He attended the Ocean Grove Medical Clinic where he consulted two general practitioners, Dr Chapman and Dr Mitchell. His usual general practitioner, Dr Reid, was not present at the clinic on that day. He was then taken by ambulance to the Emergency Department of the Geelong Hospital and was admitted. He was discharged from hospital on 18 September 2008.[18]
[18] Exhibit R11.
Mr Williams has not returned to work at CSIRO since 16 September 2008. He ceased to be employed by the Organisation in August 2009.
Since his admission to hospital Mr Williams has been treated by Dr Reid and Ms Emma Musella, Dr Cathy Faulkner and Dr Laura Capitanio, Clinical Psychologists.
In his Claim for Workers’ Compensation dated 11 May 2010[19] Mr Williams stated that he first sought treatment for anxiety state on 17 September 2008.
[19] Exhibit A1 p.9.
Evidence of Ms Currie, Human Resources Manager CSIRO
Ms Currie provided a statement dated 20 February 2012 and gave evidence.
I am satisfied that Ms Currie was a truthful witness as to the matters set out in the following five paragraphs. I am satisfied of the facts set out in these paragraphs based on her evidence.
Ms Currie supervised the merger of the Divisions from a human resources viewpoint. Before she commenced this role she had been advised by a member of the Human Resources staff at Belmont that assistance was needed because Dr Drummond was not following the necessary procedures.[20]
[20] Transcript pp.725-6.
From the time the merger was announced Ms Currie had regular contact with Mr Williams.[21] Mr Williams was identified by Ms Currie as a person who was likely to require extra support through the merger process “as he had been raising issues with the merger and redeployment process early on and had been trying to sure [sic] up his future in advance of the formal processes being finalised.[22] Ms Currie was his support person and was aware that he was “very, very concerned about what was going on.”[23] She was aware also that Mr Williams was a meticulous person.
[21] Exhibit R24, paras 3 & 5.
[22] Exhibit R24 para.7.
[23] Transcript p.734.
It was “highly concerning” to Ms Currie that Mr Thomas may have told Mr Williams on 9 September 2008 that there were no other jobs that he could apply for in CMSE. As a result of Ms Currie considering that there was a “real possibility” that Mr Thomas had made such a statement, she went into “repair mode” and called a meeting with Dr Drummond, Mr Walker and Mr Thomas.[24] At that meeting it was agreed that Mr Thomas and Mr Walker would meet with Mr Williams the following day. It was agreed that Mr Thomas and Mr Walker would set up the meeting.[25] Neither did so.
[24] Transcript p.746.
[25] Transcript p.748.
When giving evidence the following exchange took place between Ms Currie, counsel for Comcare and the Tribunal:
Ms Currie: I did set up a meeting on 15 September with Mr Thomas, Mr Walker and Calum Drummond to discuss those roles and the preference conditions that applied within the organisation when staff are potentially surplus to requirements.
…
Counsel: And why did you suggest setting up the meeting?
Ms Currie: For me, there was quite a few discussions I think, you know – that I was having discussions with Paul Walker. Paul Walker was having discussions in – with Damien Thomas, and I felt that there was often perhaps things being lost in translation.
…
Tribunal: So you had some concerns about how the process was going at that stage?
Ms Currie: I had a concern around the messages that Paul Walker and Damien Thomas believed that they were giving to Mr Williams and the messages that Mr Williams believed he was hearing from Mr Thomas and Mr Walker over the phone.
…
And I felt it was useful for myself, Mr Thomas, Mr Walker and Mr Drummond to actually have a meeting to make sure there was consistency of messaging prior to the conversation then that was to occur with Mr Walker and Mr Thomas and Mr Williams.[26]
[26] Transcript p.707-8.
Ms Currie also said that she arranged the meeting between herself, Mr Thomas, Mr Walker and Dr Drummond as she thought it was necessary that they understand the provision directly from her.[27] The provisions to which she referred were the provisions of the CSIRO policy in respect of officers that are potentially surplus and the preference conditions.[28] The meeting took place at 5:20 pm on 15 September 2008.[29]
[27] Transcript p.708.
[28] Transcript p.707.
[29] Transcript p.743.
In relation to the meeting proposed for 16 September 2008 between Mr Williams, Mr Thomas and Mr Walker Ms Currie said, in part:
As a result of the Applicant being unsuccessful in securing the BDM position in Belmont, and due to concerns about how the Applicant had been dealing with the redeployment process, Mr Thomas planned to visit Geelong [where the Belmont site is located] to see the Applicant in person to discuss the positions available in Clayton [in Melbourne].
……
I did not set up this meeting. I discussed the meeting with Mr Thomas, Mr Walker and Dr Drummond, either 1 or 2 days prior to the proposed meeting, to discuss what positions were available and how the redeployment opportunities would be discussed with the Applicant. … It was agreed that it would be better to have a face to face meeting with the Applicant to discuss the Clayton roles to answer questions directly and make a better assessment about how the Applicant was feeling. It would also ensure that any misconceptions about the discussion were dealt with on the spot. However, there was a problem with the way the meeting had been communicated to the Applicant, in that it had only been a general communication to the Belmont site that Mr Thomas and Mr Walker would be on site at Belmont that day. I understand that both Mr Thomas and Mr Walker thought that the meeting had been specifically set up between them and the Applicant, although this does not appear to be the case.[30]
[30] Exhibit R24 paras 11 & 13.
On the morning of 16 September 2008 Mr Walker telephoned Ms Currie from somewhere between Melbourne and Geelong and informed her that he and Mr Thomas had been advised on their way to Geelong that Mr Williams was unavailable for the meeting. He did not inform Ms Currie that they had not arranged the meeting.[31] Later Mr Walker told Ms Currie that he and Mr Thomas “thought” they had asked another person to set up a specific meeting with Mr Williams.[32] The email sent to Mr Williams and others on 15 September 2008 referred only to a visit by Mr Walker; it did not refer to a visit by Mr Thomas.
[31] Transcript p.750.
[32] Transcript p.750.
Evidence of Mr Thomas, Group Business Development Director
Mr Thomas has been employed by CSIRO since 1996. He provided statements dated 13 February 2012[33] and 10 August 2012.[34] He also gave evidence.
[33] Exhibit R14.
[34] Exhibit R17.
In his first statement Mr Thomas denied that he told Mr Williams that there were no positions available for him when they spoke on 9 September 2008.[35] However when Mr Thomas gave evidence he said that he could not recall making such a statement and that if he did, he should not have done so.[36]
[35] Exhibit R14 para.11.
[36] Transcript p.442.
In relation to the statement in the letter Mr Walker sent on 15 September 2008 that CSIRO had been unable to identify any positions suitable for Mr Williams, Mr Thomas said that he did not know why this was said as at that date they had been able to identify three such positions.
I am not satisfied that Mr Thomas was a reliable witness. His memory of the events of the time was poor and at times he was evasive in the answers he gave. Where his evidence conflicted with that given by Mr Williams I prefer the evidence of Mr Williams.
Evidence of Mr Walker, Human Resources Manager
Mr Walker has been employed by CSIRO since 2006. He provided a statement dated 28 February 2012[37] and gave evidence.
[37] Exhibit R13.
Mr Walker does not recall the discussions which took place between himself, Ms Currie, Dr Drummond and Mr Thomas on 15 September 2008.
When Mr Walker sent the email to Mr Williams on 15 September 2008 stating that he understood Mr Williams may not be available to meet him the following day, Mr Walker knew that no such meeting had been arranged with Mr Williams.[38]
[38] Transcript p.390.
Mr Walker did not tell Mr Williams that he proposed to meet with him on 16 September 2008.[39] When Mr Walker commenced driving to Geelong on that morning he was aware that a meeting had not been arranged. At that time Mr Thomas told Mr Walker that he was “willing to take [the] chance and hope that a meeting would transpire.”[40]
[39] Transcript p.392.
[40] Transcript p.394.
Mr Williams did not tell Mr Walker that he did not want to meet with him, contrary to what was stated by Mr Thomas in his email to Mr Williams on 16 September 2008, referred to in paragraph 31 of these reasons.
I accept Mr Walker’s evidence referred to and I am satisfied of the facts set forth in the preceding five paragraphs.
Evidence of Dr Morton, Retired CSIRO Officer
Dr Morton held the position of Group Executive of the Manufacturing, Materials and Minerals Group (which included the CSIRO Materials Science and Engineering Division) during 2008 from February onwards. He provided a statement dated 20 February 2012[41] and gave evidence.
[41] Exhibit R15.
I am satisfied that Dr Morton was an honest witness and I make the findings of fact set out in the following four paragraphs based on his evidence.
Dr Morton’s role was to over-see the merger. Dr Drummond reported directly to him. Dr Morton received advice from Ms Currie as to the management of staff during the merger.
Dr Morton does not recall telling Dr Humphries that Mr Williams and Mr Thomas could choose between two business development positions. He may have given the message that a new Flagship program was developing in manufacturing which may have developed a business development role.[42]
[42] Exhibit R15 para.5.
During the restructuring process Ms Currie advised Dr Morton that “she was urging Dr Drummond that all positions should be openly available for competitive filling as this had not necessarily been foreshadowed initially by Dr Drummond.[43]
[43] Exhibit R15, para.7.
After the merger was announced Dr Morton was advised by Ms Currie that Mr Head and Mr Thomas had been offered jobs prior to a “spill and fill’ process taking place. When he received this advice he asked for the process to be re-opened and this was rapidly instituted. The two offers were “put on hold” within a few days of Dr Morton asking for the process to be re-instituted.[44]
[44] Transcript pp.465-466.
Evidence of Dr Johnson, former CSIRO Executive
Dr Johnson was General Manager of Client and Partner Relationships in the CSIRO Business Services Group from April 2008 until July 2009. He provided a statement dated 29 February 2012[45] and gave evidence.
[45] Exhibit R23.
Dr Johnson does not recall telling Mr Williams that his appointment to a business position would be a formality. He says that he would have been careful not to have given Mr Williams that impression as such advice would have been inappropriate.[46]
[46] Exhibit R23 para.18.
Evidence of Mr Poole, CSIRO Acting Group Executive
Mr Nigel Poole held the position of Executive Director, Business Services during 2008. At the time Mr Johnson reported to him.
Mr Poole provided a statement dated 27 February 2012[47] and gave evidence.
[47] Exhibit R21.
In his statement Mr Poole refuted the allegation made by Mr Williams that Dr Johnson advised Mr Williams that his appointment to a position in the merged Division would be a formality. [48] He said that he “had discussed the position with Dr Johnson and had instructed him to ensure that the position was properly advertised and that people were given an opportunity to apply for the position through a competitive selection process.”[49]
[48] Exhibit R21, para.11.
[49] Exhibit R21,para.11.
When he gave evidence Mr Poole agreed that he was not in a position to refute the allegation referred to in the preceding paragraph. He said that he would not expect that Dr Johnson would have behaved in such a way.[50]
[50] Transcript p.579.
Evidence of Dr Drummond, Group Executive CSIRO
Dr Drummond was Chief of the Material, Science and Engineering Division during 2008. He provided a statement dated 2 March 2012 and gave evidence.
Dr Drummond does not recall telling Dr Humphries that Mr Williams would have a position in the merged Division. He says that it is unlikely that he would have made such a statement.[51]
[51] Exhibit R22 para.7.
In his statement Dr Drummond denied that he appointed either Mr Head or Mr Thomas to positions prior to the formal recruitment processes being undertaken. He says that both Mr Head and Mr Thomas were maintained in their old positions whilst the merger was underway.[52] When he gave evidence Dr Drummond denied that he offered them positions before the processes were undertaken.[53]
[52] Exhibit R22 para.8.
[53] Transcript p.610.
Taking into account the evidence of Mr Williams, Mr Head, Ms Currie and Dr Morton relating to the circumstances of Mr Head being told that he would have a position in the merged Division I am not satisfied that Dr Drummond was a reliable witness and I do not make any findings of fact based on his evidence.
evidence of health professionals
Dr Reid, General Practitioner
Dr Reid has been Mr William’s general practitioner since 1997. He provided a report dated 14 June 2010[54] and gave evidence.
[54] Exhibit A1 p.35
In the opinion of Dr Reid, prior to 17 September 2008 Mr Williams had been able to manage episodes of workplace stress which he suffered from time to time. Further, in his opinion Mr Williams has suffered from an anxiety state since 17 September 2008. Mr Williams first presented for treatment for this condition on that day. At the time the condition was not diagnosed as the immediate concern was the treatment of the chest pain Mr Williams was suffering.
Ms E Musella, Psychologist
Mr Williams was referred by Dr Mitchell to Ms Musella for treatment. Ms Musella provided a report dated 22 October 2008.[55]
[55] Exhibit R7.
Mr Williams consulted Ms Musella on five occasions between 24 September 2008 and 22 October 2008. She assessed him as suffering from adjustment disorder with mixed anxiety and depressed mood. She reported that Mr Williams:
described experiencing increasing psychological distress in response to his perception of diminishing employment opportunities within his workplace following a restructure of the division in which he was employed. … Martin recalled experiencing anxiety symptoms after being told that he did not attend a meeting at work regarding his redeployment. (This was a meeting that Martin denied having any prior knowledge of.)[56]
[56] Exhibit R7 p.1.
Dr C Faulkner, Clinical Psychologist
Dr Faulkner treated Mr Williams commencing on 18 March 2010. She practises with Ms Musella and was aware of the treatment Mr Williams had already received. She provided a report dated 16 June 2010.[57] At the time of her report Mr Williams had consulted her on three occasions.
[57] Exhibit A1 p.52.
In the opinion of Dr Faulkner the diagnosis made by Ms Musella continued to be appropriate. Dr Faulkner reported in part:
Mr Williams has suffered psychological illness and incapacity following a series of reported work-related stressors. His difficulties are consistent with an ongoing diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. … It is likely that he initially began to suffer from this condition following the review in March 2007. The allegations against him in September 2008 likely led to a crisis in his psychological wellbeing, leading him to begin therapy at this practice.[58]
[58] Exhibit A1 pp.54-55.
Professor G D Burrows, Professor of Psychiatry
Professor Burrows assessed Mr Williams in April 2011 and in May 2011 at the request of his solicitors for the purposes of this application. He provided a report dated 15 August 2011.[59]
[59] Exhibit A3.
In the opinion of Professor Burrows, at the time of his report Mr Williams suffered from a generalised anxiety disorder to which his work situation had significantly contributed and continued to contribute.
Dr A Sheehan, Consultant Psychiatrist
Mr Williams was assessed by Dr Sheehan in April 2011 for the purposes of this application. He provided a report dated 12 April 2011[60] and gave evidence.
[60] Exhibit A4.
Dr Sheehan diagnosed Mr Williams as suffering from generalised anxiety disorder. He reported, in part:
There appear to be multiple causes of the Applicant’s condition in relation to events that occurred between March 2007 until Mr Williams ceased work in November 2008. … it would appear that that his condition was significantly contributed to by his employment with CSIRO … it continues to contribute to his current symptoms.[61]
[61] Exhibit A4 p.8.
When Dr Sheehan gave evidence he was asked to consider the evidence before the Tribunal as to the effect of Mr Williams’ employment on his functioning at work up to and including 17 September 2008. Dr Sheehan said that in his opinion, based on the material before him, the first date on which Mr Williams suffered impairment was 17 September 2008 and on that date he suffered the first episode of a diagnosable psychiatric condition. He stated further that stress is a description of a condition under which people work, it is not a diagnosable condition and it is not a condition outside the boundaries of normal mental functioning.[62] Dr Sheehan said that, in view of the information available to him at the time he gave evidence, on the question of the causation of Mr William’s illness, “I think that the matters just prior to 17 September were the most significant because he had no illness prior to that and the illness developed on 17 September.”[63]
[62] Transcript p.590.
[63] Transcript p.595.
legislation
Subsection 14(1) of the Act provides:
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.
In subsection 5A(1) the relevant definition of injury is as follows:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B which reads:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
ISSUES FOR DETERMINATION
Comcare has conceded that Mr Williams suffers from a disease within the definition in section 5B the Act and that the ailment from which he suffers is Generalised Anxiety Disorder. On the evidence before me I am satisfied that these are proper concessions.
An injury becomes compensable under the Act if it meets the requirements of, and is not excluded by, the provisions of section 14. Other than determining whether Mr Williams suffered an injury, the requirements of section 14 are not in issue.
As Comcare agrees that Mr Williams has suffered a disease, the only question remaining for determination is whether the disease was “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. If it was, it is a disease which is excluded from the definition of injury in subsection 5A(1) and is not compensable.
Comcare’s argument
Comcare argues that:
a)the Generalised Anxiety Disorder from which Mr Williams suffered was sustained by him on 17 September 2008;
b)Mr Williams’ ailment was contributed to, to a significant degree, by his employment by CSIRO;
c)the only factors in his employment which contributed to his ailment to a significant degree were:
·Mr Williams becoming aware on 9 September 2008 that he was unsuccessful in obtaining a position in the merged Division;
·his receipt of emails from Mr Walker on 15 September 2008 and Mr Thomas on 16 September 2008 in relation to the redeployment process.
The issues
The following issued require determination.
1)When did Mr Williams suffer Generalised Anxiety Disorder?
2)Did Mr Williams’ employment contribute to his ailment to a significant degree?
3)Was his ailment suffered as a result of reasonable administrative action?
4)If so, was the reasonable administrative action taken in a reasonable manner?
reasoning
Issue 1: When did Mr Williams suffer Generalised Anxiety Disorder?
Subsection 7(4) of the Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
On the basis of the evidence of Mr Williams and Dr Reid I am satisfied that Mr Williams first sought medical treatment for the condition on 17 September 2008 when he consulted Dr Chapman at the Ocean Grove Medical Clinic.
On the basis of the evidence of Dr Reid I am satisfied that the condition did not result in Mr Williams’ incapacity for work or impairment before that date. Although I have some reservations as to the reliability of the evidence of Dr Sheehan to which I shall refer later in these reasons, the evidence of Dr Sheehan supported the evidence of Dr Reid in this regard.
I am satisfied that Mr Williams experienced considerable stress arising from his perceptions of the manner in which he had been treated from the time of the science review in 2007 onwards. However I am satisfied, on the basis of his evidence and that of Dr Reid, that until 17 September 2008 he was able to manage this stress using the various mechanisms he described. In any event, I am satisfied that the stress experienced by Mr Williams prior to 17 September 2008 was within the boundaries of normal human experience and was not a disease within the meaning of the Act.[64]
[64] Comcare v Mooi (1996) 69 FCR 439.
I find that Mr Williams suffered an injury, being the disease of Generalised Anxiety Disorder on 17 September 2008.
Issue 2: Did Mr Williams’ employment contribute to his Generalised Anxiety Disorder to a significant degree?
Comcare concedes that two factors of Mr Williams’ employment (referred to in paragraph 90 above) contributed to his condition to a significant degree. On the evidence before me I am satisfied that this is a proper concession. However I am not satisfied that these were the only aspects of his employment which contributed to his condition to a significant degree.
Comcare argued that the only contributing factors were those referred to in a letter written by Mr Williams to his general practitioner on 23 September 2008.[65] Omitting formalities the letter read:
Further to my medical appointment with you today I can advise you of the circumstances leading up to my illness and admission to Geelong Hospital through your clinic last Wednesday 17th September.
On Tuesday 9th September I was advised by Damian [sic] Thomas of CSIRO that I had not succeeded in retaining a position that I held at the previous CSIRO Textile and Fibre Technology Division at Belmont. He said that there were no other positions that I could apply for in the new Division known as CSIRO Materials Science and Engineering. I immediately passed this information on to two senior People and Culture staff in CSIRO, Leanne Currie and Dallas Richmond, and I proceeded to network outside of CSIRO for other work possibilities.
On Tuesday 16th September I received two emails from a Paul Walker (People and Culture Manager of CMSE) and Damian [sic] Thomas stating that I was refusing to participate in a continuing Redeployment process by failing to attend a meeting on this day with the two of them to discuss such redeployment. I was not invited to such a meeting. Given that I also had already been advised by Damian [sic] Thomas that there were no positions that I could apply for I was unable to comprehend the purpose of the meeting and motives and passed on the event again to Leanne Currie and Dallas Richmond. This caused me severe stress.
Regrettably I then suffered three heart irregularities in the early morning of Wednesday 17th September and was admitted to hospital.
It was put that this letter was written by Mr Williams very shortly after he became ill and that it should be inferred that as Mr Williams did not refer to any other incidents then no other incidents contributed to his illness.
[65] Exhibit R1.
I do not accept Comcare’s argument in this regard. Mr Williams is not qualified to make a diagnosis of the cause of his illness. Whilst his views may assist a properly qualified expert to make a diagnosis they are not definitive of the causative factors.
Comcare belatedly called evidence from Dr Sheehan that, in his opinion, the matters outlined in the letter were “critical” in the development of Mr Williams’ condition and that matters not referred to in the letter were not causative of the illness.[66] Although Comcare was in possession of the letter prior to the hearing it did not file a supplementary report by Dr Sheehan setting out his revised opinion based upon it.
[66] Transcript pp.595-596.
Prior to Dr Sheehan giving evidence he had expressed the opinion that:
There appear to be multiple causes of the Applicant’s condition in relation to events that occurred between March 2007 until Mr Williams ceased work in November 2008. These factors include reading a report in March 2007 in which he believes that he was defamed and attacked and that attempts to negotiate in regards to this matter unsuccessful. In addition he reports that there were matters related to redundancy being unfairly treated by his employer in this regard and his subsequently being unfairly dismissed. [67]
[67] Exhibit A4 p.8.
It is apparent from the history taken by Dr Sheehan and from the report of Dr Faulkner (of which Dr Sheehan was aware before writing his report) that Mr Williams was claiming to have been affected by a series of events starting in March 2007. There was little, if any, new material put to Dr Sheehan when he gave evidence. He did not explain what caused him to change his view as to the cause of Mr Williams’ illness. For this reason I do not accept his opinion that the only factors which caused Mr Williams’ illness were his being notified that he did not have a position on 9 September 2008 and the emails of 16 September 2008.
On the basis of the evidence of Mr Williams, Dr Reid, and Ms Musella I am satisfied that the inconsistent information given to Mr Williams by his employer as to his prospects of ongoing employment also contributed to his condition.
In reaching this conclusion I have taken into account that:
·Mr Williams was concerned by the inconsistent advice given to him and had advised his employer of this concern;[68]
·Mr Williams consulted Dr Mitchell on 22 August 2008 and it is noted that he referred to his “uncertain future”[69];
·Ms Musella recorded that on 24 September 2008 Mr Williams had high fear and “kept thinking had opportunities & then they were progressively disappearing.”[70]
·Ms Musella’s report that Mr Williams “described experiencing increasing psychological distress in response to his perception of diminishing employment opportunities … following a restructuring …”.[71]
Issue 3: Was Mr Williams’ Generalised Anxiety Disorder suffered as a result of reasonable administrative action?
[68] Exhibit R25.
[69] Transcript p.334.
[70] Exhibit R6.
[71] Exhibit R7.
I have found that there were three factors which contributed to Mr Williams condition:
1)the inconsistent advice given to Mr Williams as to his employment prospects following the announcement of the restructure;
2)the advice of Mr Thomas on 9 September 2008 that Mr Williams had not succeeded in retaining a position at CSIRO and that there were no other positions that he could apply for in the CSIRO Materials Science and Engineering Division;
3)the emails sent to Mr Williams by Mr Walker on 15 September 2008 and Mr Thomas on 16 September 2008.
The inconsistent advice as to employment prospects
On the basis of the evidence of Mr Williams I am satisfied that between 29 May 2008 and 16 September 2008 the advice he was given by various representatives of the Organisation was inconsistent and at times ill-considered. I am satisfied that on most, but not all occasions, this came about by reason of differences between Dr Drummond as Chief of the Division and officers in the Human Resources Division. On other occasions, particularly during the last week that Mr Williams was at work, I am satisfied that the conflicting advice was a result of either insufficient care being taken in the management of Mr Williams’ situation or of a deliberate intention to mislead Mr Williams. The motive behind certain action being taken will not always be relevant. However it is important in this case to understand why certain administrative action was taken in order to decide whether it was reasonable.
I am satisfied that the administrative action undertaken towards Mr Williams in the form of the advice given to him was not reasonable administrative action. In this case reasonable administrative action would have been the conduct of a properly planned merger with Mr Williams being accurately informed of his prospects of employment within the merged entity.
The advice as to failure to retain position and unavailability of other positions
I accept without reservation that the conversation between Mr Williams and Mr Thomas on 9 September 2008 was as recounted by Mr Williams for the reasons I have given. In addition I have taken into account that Mr Williams made a note of this conversation on the day it took place.[72]
[72] Exhibit A1 p.146.
It was not reasonable administrative action for Mr Thomas to tell Mr Williams that he had been unsuccessful in his application for a position in the merged Division and to immediately incorrectly inform him that there were no other positions in the Division for which he could apply.
The incorrect information given to Mr Williams coloured the whole of this conversation, including the accurate advice that Mr Williams had failed to gain the position he sought. However even if it is appropriate to separate the advice as to the outcome of the selection process (which of itself could be properly classified as reasonable administrative action), for reasons which I will set out later I am not satisfied that it was administrative action taken in a reasonable manner.
The emails received by Mr Williams on 16 September 2008
In the light of the advice given to Mr Williams on 9 September 2008 and the fact that no-one had arranged for a meeting with Mr Williams, neither the email sent by Mr Walker on 15 September 2008 nor the one sent by Mr Thomas the following day can be regarded as reasonable administrative action.
Mr Walker’s email advising that a number of options were available was inconsistent with the tenor of the advice previously given. The advice was tendered without explanation. The final comment to Mr Williams that his involvement in the redeployment process was crucial to its success was inexplicable in light of Mr Williams’ past efforts. These considerations in addition his sending a letter dated the same day contradicting what he said in the email all cause me to conclude that I am not satisfied that the sending of this email was reasonable administrative action.
I am satisfied that Mr Thomas’ email of 16 September 2008 was deliberately false in a number of respects and for this reason I am not satisfied that his action in sending it was reasonable administrative action.
When he sent the email Mr Thomas knew that the meeting had not been arranged and that the responsibility for doing so lay with Mr Walker and/or himself. He knew that in fact there had been some confusion and that Mr Williams had no part in creating that confusion. Further I am satisfied that Mr Walker had not informed Mr Thomas that Mr Williams did not wished to meet with him (Mr Walker) and that Mr Thomas’ advice to Mr Williams to the contrary was untrue. I am satisfied also that in view of the advice Mr Thomas had previously given Mr Williams, Mr Thomas knew when he sent the email that it was extremely unlikely that Mr Williams knew that three other business development positions were available in the Division.
Issue 4: Was the reasonable administrative action (if any) taken in a reasonable manner?
Had I decided that any of the administrative action being considered was reasonable administrative action, I would not have been satisfied that any of the actions found to have contributed to Mr Williams condition were taken in a reasonable manner.
In reaching this conclusion I have taken into account that Ms Currie, Mr Walker and Mr Thomas were all aware that Mr Williams was having difficulty in coming to terms with the possibility that he may not have a position in the merged Division. In that situation it was more important than ever that Mr Williams be dealt with properly and with proper consideration being given to his understandable concerns.
The repeated changes in the advice given to Mr Williams was not a reasonable manner of keeping him informed of his prospects of obtaining a position in the new structure.
Mr Thomas’ manner of conveying the advice as to Mr Williams’ failure to gain the position he sought by coupling it with incorrect advice as to the lack of available positions was not reasonable. Even the possibility that he may have done this was enough to cause considerable concern to Ms Currie who had the responsibility of over-seeing the process from a human resources perspective.
I am not satisfied that the actions of Mr Walker and Mr Thomas in sending the emails received by Mr Williams on 16 September 2008 were taken in a reasonable manner for the reasons I have already set out.
conclusion
The reviewable decision of Comcare made 5 October 2010 denying liability to pay compensation to Mr Williams in respect of Generalised Anxiety Disorder will be set aside.
In substitution for the decision set aside it will be decided that:
1)on 17 September 2008 Mr Williams suffered an injury, namely Generalised Anxiety Disorder, as defined by the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
2)Comcare is liable to pay compensation to Mr Williams in respect of the injury in accordance with the provisions of the Act.
I certify that the preceding 121 (one hundred and twenty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.....[sgd].....................................
Associate
Dated 19 December 2012
Dates of hearing 26, 27, 28 and 29 March 2012; 6 and 7 August 2012; 20, 21 and 22 August 2012; 24 September 2012
Counsel for the Applicant Ms C Serpell Advocate for the Applicant Mr C Dale Solicitors for the Applicant O'Donnell Salzano Lawyers Counsel for the Respondent Mr P Woulfe Advocate for the Respondent Ms N Kelidis Solicitors for the Respondent Thomsons Lawyers
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