Yawari and Australian Postal Corporation (Compensation) (Compensation)

Yawari and Australian Postal Corporation (Compensation) (Compensation) [2023] AATA 3208 (11 October 2023)
Division:GENERAL DIVISION
File Numbers: 2021/1960 & 2022/2644
Re:Ms Shaista Yawari
APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:11 October 2023
Place:Melbourne

Under section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution decides that Ms Yawari is entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for her condition of adjustment disorder with mixed anxiety and depressed mood.
........................[SGD]........................
Ms A E Burke AO, Member
CATCHWORDS
WORKER’S COMPENSATION – postal worker – denial of liability – claims of bullying and harassment – adjustment disorder – employment contributed to the cause of her injury to a significant degree – new evidence of symptoms raised during the hearing process - decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492
REASONS FOR DECISION
Ms A E Burke AO Member
11 October 2023

The Applicant, Ms Shaista Yawari, applied for review of two decisions made by Australian Postal Corporation (Australia Post): to deny of liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
On 31 March 2021 Ms Yawari, sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal), stating that the decision was wrong in fact and law.
INTRODUCTION
Ms Yawari was employed by Australia Post from 29 April 2020 until 6 August 2020 as a mail officer. Ms Yawari is a 22-year-old Afghani national, who resides with her parents. She completed year 12 and commenced a nursing degree at Federation University. Whilst working at Australia Post Ms Yawari was studying and also working for Coles Supermarkets.
On 19 July 2020 Ms Yawari submitted an incident report noting the date of incident as 4 May 2020 describing what happened as “I always got bullied, discriminated and harassed because of my religion, appearance and race. I was and is mentally injured because of what I have been going through at Auspost”.
On 9 August 2020 Ms Yawari first sought medical treatment for the injury and submitted a claim for compensation under the SRC Act on 11 October 2020.
On 21 January 2021 Australia Post concluded an internal investigation into Ms Yawari’s claim of bullying and harassment on grounds of Religion and Physical Characteristics against Ms Triantaflaros, Ms Jansz and Ms Barber. The report found the claims had not been substantiated and were therefore not considered to be breaches of the Australia Post Harassment Discrimination Bullying Policy or Ethics.
On 25 January 2021 Australia Post rejected Ms Yawari’s claim for compensation under section 14 of the SRC Act for her claimed “depression, anxiety, mental health injuries, psychological injuries”. This decision was affirmed under reconsideration on 17 March 2021.
On 11 March 2022 Australia Post rejected Ms Yawari’s further claim for permanent impairment or non-economic loss under sections 24 and 27 of the SRC Act. This decision was affirmed under reconsideration on 31 March 2022.
The hearing was heard in person on 28 & 29 November 2022; 7, 8 & 9 February 2023; 1 & 2 May 2023 with final submissions being made on 10 August 2023. At the hearing, Ms Yawari was represented by Ms Cassie Serpell of counsel, instructed by Angela Sdrinis Legal. Australia Post was represented by Ms Ann McMahon of counsel, instructed by Ms Kellie Latta of Sparke Helmore Lawyers.
ISSUES
The Tribunal needs to consider the following relevant issues:
·     Has Ms Yawari suffered an injury (disease) and if so has her employment at Australia Post contributed to that condition or the aggravation of that condition to a significant degree?
·     Has Ms Yawari suffered an injury (other than a disease) and if so did it arise out of, or in the course of, her employment with Australia Post?
·     If the answer is yes to either of the above, is Australia Post liable to pay compensation?
LEGISLATION
Relevantly, section 14(1) of the SRC Act provides that, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the SRC Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the SRC Act, as follows:
5A Definition of injury
(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.
...
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.
(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.
…
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Ms Yawari
Ms Yawari compiled an undated and unsigned statement when she applied to the Fair Work Commission:
Bullied, Harassed and discriminated at work
1. Verbal bullies. I was called a terrorist by Carmel, because my religion is Islam and I am a Muslim. Making fun of my religion was keeping her amused and entertained. She often reminded me that Muslims are terrorist. The verbal bullies started from 14,05,2020 and until I resigned from the job, it was the 04,08,2020. The physical and verbal bullies started from 14,05,2020 until when I resigned from the job.
2. Physical bullies. Carmel always pinched and punched me on my arms and usually touched me anywhere while I kept asking her to stop, but she continued anyways. I hated when she touched me anywhere, I told her that you are harassing me, and asked her to please stop. She laughed and said I will not stop. I felt extremely uncomfortable every time when she touched me anywhere. She always did what kept her entertained and she never cared about others feelings and emotions at all. She often pinched and punched me. I showed her the bruises and the marks I got from her pinching and pouncing. At once she got shocked to see the bruises and she knew she was the reason behind my bruises that’s why at once she got very shocked and got quiet for a few seconds but then she said it is ok with time they will go away and she continued.
3. Got Bruises on my arms. The event was seen by Heather, Charley and Claire since we worked in the same group. Heather Vu is one of the team members who witnesses the bruises and marks.
4. Discrimination I was always discriminated by my race, culture, appearance and religion by Carmel. I was called skinny, freeze hair- why don’t you brush your hair.
You look ugly with green top. They never had any exchange of harsh words towards each other but only to me. I always felt that I was isolated from the rest of the group and they made me their target fir victimisation. I always heard unkind words from them.
5. Stupid religion. Can’t pray while being on our monthly in Islam. Carmel called my religion weird and stupid for how I couldn’t pray while being on my monthly.
6. Making me feel uncomfortable mentally. Carmel always questioned me about my religion and culture to make me feel uncomfortable and to get more chances of making my fun and how my culture and religion was stupid and weird.
7. “My mum is a letter box”. said by Carmel. She always disrespected me and used unkind words towards me, but because I let things go, she got confident enough to pick on my mum too, even though she has never seen my mum and don’t even know her. She called her a letter box because she was wearing a scarf. In addition, she often said Muslim women are a letter box because we only can see their eyes but not their full face.
8. Terrorist. Carmel always called me a terrorist right from when the bully started because of my religion. She called me terrorist in front Sharon. Sharon was on the supervisors from a different department at Australia post. Sharon told Carmel no, that’s a very wrong thing, you can’t say that to her. But Carmel laughed and replied to her, “she’s is a terrorist, that’s why I’m calling her a terrorist. She never felt guilty for hurting my emotions. On a different day I was on my monthly due to which I couldn’t pray. Carmel asked why don’t you pray? I replied, “we can’t pray if we are on our monthly”. She straight away replied, “your religion is stupid and weird, Muslim has all these weird rules”. Heather Vu was there next to us. she could understand that my emotions were hurt. She said that is very wrong thing to say about someone’s religion while she was emotional for me. I was always hurt verbally and physically either by Carmel, Charley and or Mary.
9. Where is your scarf. She always made me feel very uncomfortable at work by asking why I don’t wear a scarf? While she had problem with my mum for why she’s wearing a scarf and that she looks like a letter box. Even though she has never seen my mum, but she was still talking behind her back while she was at home. In addition, she has never seen my mum in person, and they don’t even know each other.
10. Refused going back to Carmel’s group. Carmel asked me twice to go back to their group and work with them, but I refused because I knew she was going to bully me. I heard Carmel talking to charley saying that the other group is finishing their loads faster since Shaista has moved there. Carmel was conscious about how good I was working but she still chose to bully me and say that I was weak and not working properly. They knew I heard them as they were staring at me while talking.
11. Desperate for money, dying for money, she’s dumb and she has no life.
12. Harsh and very unacceptable words used by Carmel. She is always doing the overtime. She is not normal. The desperate one for money. Carmel always made fun of me and never cared about my emotions. In addition, she made fun of me when I was emotional and had tears. she was laughing and saying look at her she is just about to cry.
13. Financial issues and living expenses. I always believed that I never had to explain myself to anyone. However, when I came across with Carmel, I always had to explain myself to her as she always questioned me for I was doing the overtime, why I was after money, and as always called me stupid you have no life, but I had to explain myself to her like always while I knew I was going to hear the same questions the following days. Because Carmel and Charley knew I was going through financial issues. They made my financial situation their strengths, as they knew I had no other options apart from coming to work every day.
14. Always excluded from decision making. It always felt like I never belonged to the group at all. I was always just following others orders and rules they made for the team. The never asked me if I had any suggestion, they just called me over when they had to tell me what their plans were for the team while they always asked each other.
15. Carmel always intentionally made me feel uncomfortable about questioning about me about my religion while she was giving me the strangest look. She always asked why I do not pray and why I didn’t pray five times and only prayed three times. Questioned me why I was fasting in Ramadan and she always mentioned I don’t know why Islam has a lot of weird rules and said if I was you, I was never going to fast. I won’t kill myself to keep my parents happy and my God. Muslim’s God is called Allah, Carmel always pronounced Allah while making strange sound and laughing around.
16. I was the youngest in the team. They targeted nineteen years old while they were in their forty’s and fifty’s apart from charley, she is in her twenty. They always made me suffer mentally due to which I couldn’t sleep during the night. I mentioned about my sleep to Carmel and Mary Barber. I mention about my sleep so that Charley and Carmel could change their unacceptable behaviours and to stop giving me stress. But they never cared.
17. Feeling unsafe and scared. I always felt scared of Carmel and Charley as they had a very strong personality. Whatever they ordered me, I always kept my head down and followed them because they both always made faces and rolled their eyes. I never could speak up for myself because Carmel and Charley always made fun of my accent and always reminding me that I have been in Australia for a very short period of time and that I don’t know much about the laws and rules in Australia.
18. Charley Jenz. Charley Jenz has a very strong bonding with Carmel. They were always together to bully me. Carmel always bullied me to entertain Charley. Because whenever, Carmel bullied me, then Charley started to laugh and add more on to the bullies. Charley has always hurt my emotions and always mentioned that “yeah I have been with Afghans, and I know them very well”. She always picked on my culture and reminded me that I don’t know anything about Australia, also she always questioned me if I know anything about Australia. She always made me feel uncomfortable by picking on my accent as she was also laughing and rolling her eyes. Because Carmel and Charley always made fun of my accent due to that I started being very quiet and never raised my voice to protect myself. I always felt very weak and fearful working with them. I often risked by lifting parcels that I found extremely heavy for myself, but because whenever I struggled with heavy parcels Charley gave me a very dirty look and rolled her eyes, since I knew about her habit I had to continue taking risks so that she didn’t disturb me emotionally.
19. 03,08,2020. On this day, Charley intentionally hit me with the pallet jack and when I turned around, she was staring at me and didn’t even apologise, and Carmel was standing there as well. Carmel and Charley were both staring at me and at the same time looking at each other and laughing at me. Charley has bullied me physically and mentally. I was never comfortable mentally when Charley and Carmel were around me. Charley has always hurt my emotions and feelings.
20. Harassment. Carmel and Charley always harassed me by saying David is your boyfriend. He is flirting with you; he is in love with you. David was a 72 years old guy where I am nineteen years. David worked on the other sections, but sometimes he came to say hi to everyone and he sometimes worked near our section also.
21. I always felt very uncomfortable with the Carmel’s and Charley’s words. I started avoiding saying hi to David by pretending I have never seen him, at the same time I felt very bad because he was m a very helping guy, because they were always verbally bullying me by using his name, I had to stop saying hi to him. I always felt extremely uncomfortable and even told Charley and Carmel, but they continued to entertain each other to make fun of me and to harass me.
22. Accused of having Covid-19 and called the sicky. I didn’t go to work for three days from 17,06,2020 to 19,06,2020. Because I’m allergic to sea food, and I accidently had sea food the night before I went to work on the 16,06,2020. I felt unwell a little bit, but I knew the reason why I didn’t feel well that’s why I went to work. However, if I knew I had covid-19 I was not going to work that day anyway. Since I also have feelings and I care about others safety too. In addition, on that day Claire offered me a chocolate, while we were on our break, but because I get sore throat if I have chocolate without tea. I refused to have the chocolate and I also explained the reason why. My throat is very sensitive with sweets and I have to have tea while having sweets to wash away the sweets syrup from my throat. Claire understood my situation and she didn’t mind at all also she mentioned this herself that yeah, some people can’t have chocolates without tea. However, Carmel was sitting on the same table as us. As soon as I was finished talking with Claire. Carmel started being extremely harsh and rude towards me and she straight away changed my words against me saying. “Oh, did you just say you have sore throat”. She then didn’t stop and kept going. She harshly said you have Covid-19, you shouldn’t be here, you are dumb. That’s when I lost my voice and deep inside, I was crying and breaking. She was always searching for a reason to put me down and bully me just because I was a Muslim. Even though I explained everything just before that I’m feeling down a little bit today because I had sea food last night and that I’m allergic to sea food. After we went back to the warehouse floor Carmel with her very harsh attitude told me to leave the team and go on the other side. This was on the 16,06,2020. I quietly listened to Carmel and moved to another group. Carmel kept bullying me and discriminating me even when I was in the other group. That day she didn’t stop bullying me and it was a very tough day for me. I suffered too much. I tried to stay strong and hold my tears back. Later that day as soon as we finished and got in the car that’s when I could burst into tears. I didn’t go to work for three days because my dad was very upset with what actually happened to me. He asked me to not to return to work but I had to because I was very desperate for money. As I have had university fees to pay and living expenses on top. I was going through a lot of financial issues.
23. 16,06,2020. On this day I moved to the other group. I left Carmel’s group because she told me to leave the group and join the group as she accused me of having covid-19. I politely listened to her and left there. After I was in the other group. Her and Charley even bullied me there from the other side. Because I was always the quiet one as I was always being bullied too. They never let me alone anywhere. Sometimes Carmel even followed me to my car too so that she could bully me anywhere.
24. Working at Australia post. Since I started working at Australia post. The four months felt like several years of pain for me, I started losing weight, I often cried in the car on my way back home from work, I started spending my breaks in the car while we were at work. I have had sleepless nights; bad dreams and I was disturbed emotionally. I started losing a lot of hair and to hide it from Carmel, I started wearing beanie because I knew if Carmel saw it, she was going to bully me verbally even more. Because I remember her saying your hair is ugly as it is freeze. I often got home with a swollen eye since I couldn’t stop crying. Because I could do nothing but only cry. Since Charley and Carmel were being supported very strongly by Mary. They both knew Mary had their back that was one of the other reasons why they could bully me even more.
25. 01,08,2020. On this date Mary almost hit me with the forklift, because every time, she had a conversation with Charley the next moment she was being very harsh with me. Because Charley was always saying something to Mary against me because she hated me just because she didn’t like the fact that I was not in their group anymore. As I was always there to listen to their orders and work as hard as I could. I was always a labour to Charley and Carmel. Mary saw me moving the ULD. But she still pushed the other ULD on the other side of me while the door of that ULD was hanging on it’s side. Because Mary always felt for what she was hearing from Charley. She didn’t even care about the ULD also. She was dragging the ULD with the door hanging on it. Heather Vu saw the even and she knew I was very scared, because I was crying, and she was trying to calm me down by saying “it is fine”. Mary saw me being scared and crying. She approached me apologising, because she knew this time, she had done very wrong and unsafe thing. Because she was scared, I tried to handle the situation by saying don’t worry and that’s why I tried to always pretend that I was fine while when I was always being fearful and hurt by them emotionally.
26. 03,08,2020. Mary was always searching for a reason to bully me, and so that she could use harsh words towards me, that’s why she was always discussing about me with Charley. On the 03,08,2020. When I got in the tearoom for my break, I heard Charley constantly talking my name and talking about me to Mary, and as soon as I entered the tearoom the both stopped, and I went straight to the tap without showing any reactions. While I was filling my cup, Mary approached me with a very harsh tone she asked me, is everything ok with you? I turned around pretending that I heard nothing and said yes Mary with a smile. She knew I was always doing the overtime, but she still stared at me asking “so are you doing the full hours today?”. I again said yes, and she kept staring at me and walking off back to Charley. I didn’t react at all.as soon as I got back to the warehouse floor, whenever Mary saw me around, she was then driving the forklift like mad. I thought to myself it is ok if she’s being childish, I’ll be extra careful. Later that day around 4.30 we are starting our overtime. I needed my cuter for opening the bags. I asked David if I could go and get my cutter from my car as it was my first rime forgetting my cuter. He said “yes, of course you can”. So, I went to get. My cutter. As soon as I got in our working section Mary started screaming at me and shouting at me that I didn’t ask for a permission if I could go for my cutter. I explained to her that she was busy and far away, and that David was right next to me, that’s why I asked him to save time. She kept shouting and screaming at me saying “I don’t care” I will have a word with the manager. David explained to her that she asked me already. But she still kept screaming at me nonstop. I got extremely emotional and I started bursting into tears. I just couldn’t stop crying. Because that day she kept bullying me from 10.30 and right up to the finishing time. I tried to ignore her bullies, attitudes her unsafe driving of the forklift while she saw me around herself. But it came to the point, that I couldn’t hold it anymore. But I still showed humanity and offered her help when we are finished. She was still on the forklift. As soon as I approached her and offered her help. Mary with cruel tone said, “no I don’t need your help, see you tomorrow with David”. David Minnala is the facility manager. Then we meet the next morning in the meeting.
27. 04,08,2020. On this day we had the meeting. As soon as I entered the meeting room at 9.30. everyone else’s were already sitting there. Mary kept looking at me and rolling her eyes. Because she knew she was sitting next to the manager and that the manager can’t see her, she kept making faces and rolled her eyes. Mary in the meeting said that, “Shaista never reported anything to me about Charley and Carmel bullying her, this is my first time ever hearing from her that she was being bullied by Carmel and Charley”. As soon as I heard that, I just burst into tears. I just realised why them three kept bullying me and why Mary herself started to bully me too. It was because whatever I reported to Mary. She never reported to the manager (David Minnala). Mary did the very wrong thing to me. I trusted her as a team runner. Because we are advised to go to her if we ever needed anything or reporting anything. Heather Vu witnesses that I reported everything to Mary. As she was there when I reported everything to Mary. Mary turned around and instead supported Carmel and Charley and on the other hand, she started bullying me herself too. Mary Barber, Carmel and Charley has harassed, discriminated and bullied me to the point where I can’t sleep every night. I am on a sleeping pill in my nineteens. I feel regretted for working for Australia post. In the meeting I mentioned Charley, Carmel and Mary’s behaviour on how they treated me at work. Charley and Carmel, they both Apologised from me, meaning they confronted and accepted that they have been harassing, bullying and discriminating me. The manager David Minnala himself advised me to write a letter to him about everything that I have been going through and that he will send a copy of the letter to the Human resources. The manager himself did understand that I wasn’t lying after I got apologised by them.
Australia Post

On 23 November 2020 the Employee Relations Case Manager in an internal email to Ms Yawari’s supervisor reported:
FYI, all alterations by Shaista against Carmel, Charley and Mary were not proven. I suspect that Ms Yuwari may have been overwhelmed by fatigue by the time she resigned and this may have affected her view of the team and their interactions. For example; An independent witness had quite a different recollection of a conversation to Ms Yuwari and there was also evidence Ms Yuwari initiating topics then accusing others of that in the allegations. It did make some of her claims questionable.
On 15 January 2021 the Employee Relations Case Manager provided her report to Australia Post in response to Ms Yawari’s claim of being bullied, harassed and discriminated at work; which had been filed with the Fair Work Commission; she determined in respect of all allegations that they were unsubstantiated or unable to be substantiated. In respect of Allegation 20 the Manager found:
Allegation 20: At 4.30p on 3 August 2020, after realising she had left her cutter in the car, Ms Yawari asked Mr Magor if she could go to get her cutter from the car so she could open the bags, he gave permission. When she returned with the cutter, Ms Barber started screaming and shouting at Ms Yawari that she had not asked permission to get her cutter. Even after Ms Yawari and Mr Magor explained the situation, Ms Barber kept screaming at Ms Yawari saying "I don't care".
Evidence
Interview with Ms Shaista Yawari, Ex-Casual Mail & Parcels Officer on 14 September 2020
Ms Yawari stated that:
·She did not realise she did not have her cutter until she just before the Express Post shift started
·She talked to Mr Magor and asked him if she could go to her car to get the cutter and he told her she could
·When she got back a couple of minutes later, Ms Barber yelled at her about not asking permission and would not let her speak.
Interview with Respondent Ms Mary Barber, Agency Casual – Forklift Driver on 10 September 2020
Ms Barber stated that:
·I do the clean up, picking up and moving the ULDs, at 4pm and then get ready for the Express Post shift
·At the start of the Express Post shift there were full vans coming in to be unloaded.
·4 people are required on that shift but Ms Yawari was not there. She had put her name on the roster for that extra shift.
·Nobody seemed to know where she was so Ms Triantaflaros and Ms Green stayed back to help out. They left once Ms Yawari returned.
·I think Ms Yawari was missing for about 15-17 minutes which is a long time out of a 1 hour shift
·Everyone was jumping in and helping
·Ms Yawari came back and I asked her where she had been.
·Ms Yawari started screaming at me and pointing her finger “I told Dave”
·Mr Magor has nothing to do with this team and Ms Barber had not seen him either, he sometimes goes out for a smoke.
·I remember thinking this girl is losing it
·Ms Barber said to Ms Yawari "you should have told me" and I would have sounded irritated but was not screaming at her.
·Ms Yawari went off on me and it was quite surprising
·Asked her why she did not tell one of the girls 5 minutes late would have been reasonable but 15-17 minutes late was not.
·Most annoyed I have been on that day for sure
·Ms Yawari had taken advantage of my kindness.
Interview with Witness Ms Claire Smith, Casual Mail & Parcels Officer on 9 September 2020
Ms Smith stated that:
·Ms Yawari had raced off the floor and they did not know where she was. They were busy as the Vans were coming in, so it was odd that Ms Yawari disappeared for about 10 minutes.
·When she returned Ms Barber was frustrated with Ms Yawari being away from the floor and not knowing why, but did not yell.
·Ms Barber asked her "where did you go".
·Ms Smith did notice that Ms Yawari broke down and got a bit upset.
Interview with Witness Ms Carmel Triantaflaros, Casual Mail & Parcels Officer on 10 September 2020
Ms Triantaflaros stated that:
·she wasn't meant to work that night but Ms Yawari was nowhere to be seen
·Ms Yawari was on the roster to work but did not turn up for maybe 15-20 minutes
·Recalls that when Ms Yawari returned, Ms Barber asked her where she had been, "you're meant to be here"
·Ms Yawari said that she "went to get her cutter" and that she told Mr Magor
·Ms Barber said "Dave doesn't have anything to do with us" and "I've got 2 people here that should have gone home"
·Ms Yawari started crying
·Ms Triantaflaros said that as Ms Yawari was back, she got her bag and left then as she needed to get home.
Interview with Witness, Ms Charley Jansz, Casual Mail & Parcels Officer on 10 September 2020
Ms Jansz stated that:
·On the Monday, they were rushing to clear ULDs. Express Post starts at 4.30pm and always with 4 people rostered on. On that day the roster was Ms Yawari, Ms Smith, Ms Jansz and Ms Barber.
·Ms Yawari was nowhere to be seen at 4.30p and Mondays are the worst days
·We had no idea where she was and there were so many vans coming in
·Ms Triantaflaros and Ms Green weren't rostered on but stayed to help when they saw we were short one.
·I think Ms Yawari was away for more than 10 minutes
·When she came back from getting her cutter, she was walking and not in a hurry
·Ms Barber asked Ms Yawari when she came back "where have you been"
·Ms Yawari was yelling at Ms Barber that she had to go get her cutter.
·Ms Yawari started crying then was speaking with one of the supervisors Bill Screen
Interview with Witness, Mr David Magor, Postal Transport Officer on 9 September 2020
Mr Magor stated that:
·Recalled this incident quite clearly
·Ms Yawari had come to him to ask if she could go and get the cutter from her car
·There were only a couple of Vans there at the time, it was maybe around 4.20pm, and he told her that it was fine and to grab a drink on the way back if she needed one.
·Mr Magor mentioned that he sets up the array so they can get the Express off the Vans and onto the trucks. The Vans generally start arriving between 4.20-4.30pm and Ms Yawari's team usually arrive around 4.20 as well.
·She was only gone for about 5 minutes and was quite surprised at how quick she was.
·Does not think that she got a drink on her way back as he did not notice a drink bottle in her hand
·When she got back the girl in charge (Ms Barber) said to Ms Yawari "where have you been" and that Ms Yawari told her that she did get permission.
·he mentioned that Ms Barber was talking louder than she usually would, but not quite yelling
·He had moved away to look after other tasks and could not hear any more of the interaction but did notice that she was still going on about it to Ms Yawari for several minutes.
·Could see by the expressions on Ms Barber's face and the look on other people's faces around them that Ms Barber was still going on about it with Ms Yawari.
·Ms Yawari came to him after this and said "I did get permission didn't I" and he said "of course I gave permission, and said to get a drink on your way back".
·He then noticed that Ms Yawari was sobbing and that Mr Screen was talking to her trying to calm her down.
Interview with Witness, Mr Bill Screen, Postal Transport Coordinator on 11 September 2020
Mr Screen stated that:
·Did not see the incident between Ms Yawari and the others on 3 August
·He does not usually cover the Express Post Array area or have much to do with the girls. He starts work later in the day so his shift does not overlap much with theirs. At the start of his shift he is usually looking after other duties and admin tasks.
·When he got near the Express Post array, he saw that Ms Yawari was crying
·Couple of the other girls came over and were saying that Ms Yawari was doing this or that, he shooed them off to talk to Ms Yawari.
·He asked Ms Yawari "what's up" but she was too upset to tell him straight away
·Ms Yawari said that she wanted to speak to David Minnala and he told her that he was not there as he had finished work
·Couple of the girls came over again and he shooed them off, thinks it might have been Ms Barber but not sure who else.
·Ms Yawari said that she felt she was being harassed. She was crying and the area was really noisy.
·He suggested that she could work away from the Express Post array or go home
·Ms Yawari replied "no, I'll stay here and work"
·He rang the manager, David Minnala, and told him that Ms Yawari was really upset and that she was feeling harassed but he could not get much out of her.
·Mr Minnala told him to tell Ms Yawari to come and see him early next morning, I think he wanted to see her before the start of shift - around 9.30am
·She said she was ok to work there in the Express array
·Seemed to be working ok - no other girls around her
Consideration of Evidence
In arriving at my findings, I have taken into account all the information made available to me. I therefore make the following findings with respect to this Allegation:
·There is no doubt that Ms Yawari was not in the Express Post area when the team started working on that shift at around 4.30pm and that the team did not know where Ms Yawari was.
·Her absence was significant enough that 2 other casuals stayed to help the team until Ms Yawari returned.
·There are differing views as to how long Ms Yawari was absent for in that they varied from around 5 minutes up to around 20 minutes.
·Mr Magor confirmed that Ms Yawari asked him around 4.20pm if she could go and get the cutter from her car and that he said it was fine.
·In regards to the interaction between Ms Yawari and Ms Barber, Ms Yawari stated that Ms Barber was yelling at her but Ms Barber and witnesses stated that Ms Barber asked where she had been and was not yelling at Ms Yawari.
·Ms Barber admitted that she may have sounded irritated that Ms Yawari had not told anyone from the Express Post team but was not yelling or screaming at her.
·Ms Barber stated that Ms Yawari went off at her which surprised her
·There is also no dispute that Ms Yawari became upset and was spoken to by Mr Screen
·Ms Yawari had volunteered to do the additional 1 hour shift clearing the Express Post vans and was clearly not present at the start of that shift. This obviously caused some concern as the shift has only 4 team members and her absence resulted in 2 other casuals to stay and assist.
·I am unable to establish that Ms Barber was screaming at Ms Yawari when she returned to start working on the Express Post
·Witnesses did not provide any evidence that Ms Barber told Ms Yawari she did not care after Ms Yawari explained that she had asked Mr Magor if she could go get her cutter.
·Mr Magor did not provide any evidence that he spoke to Ms Barber to explain the circumstances.
Finding
Based on all the available evidence I find that the Allegation is: Unsubstantiated
On 14 January 2021 the Employee Relations Case Manager in an internal email to the Compensation claims manager reported:
In regards to Ms Yuwari’s complaint, I did not find any of the allegations proven against any of the respondents.
I noted that she was working 2 casual jobs at the time and the most common comment was that Ms Yuwari was often very tired, even going to her car to sleep during breaks. There were comments that she said she had had no sleep after working additional hours at night in her 2nd job at Coles (normal roster 10pm-3am). She would then commence her AP shift at around10-10-30a and putting her name down for an additional shift at the end of each day with AP finishing at around 5.30p. On top of this she also created artwork to sell online. I believe that her exhaustion may have had a significant impact on her perception or recollection of events.
For example she claimed that a colleague was spoken to by another employee (SPSO2) after she called Ms Yuwari a terrorist. The colleague was spoken to but the word “terrorist” was never used and she was only asked to stop referring to friends as “Muslim friends”. The SPSO2 also stated that the group were always laughing and chatty and that Ms Yuwari was quiet but gave as good as she got. Ms Yuwari also claimed that this colleague used the term “letterbox” when talking about Ms Yuwari’s mother (in reference to face coverings) but it was Ms Yuwari that described her mother as a letterbox in a text to this same colleague.
I am hoping to get the letter out this week to Ms Yuwari but have explained to her already that I did not find any allegations proven.
On 21 January 2021 the Territory Manager East Vic advised Ms Yawari that the investigation into her complaint against Ms Triantaflaros, Ms Jansz and Ms Barber of bullying and harassment had concluded and no allegations had been substantiated. The report noted:
It was noted that some incidents in part were confirmed as having occurred but that the available evidence did not support the actual allegation.
On 17 March 2021 the Reconsideration Officers in their reasons for affirmation of rejection stated:
Reasons for decision
In a claim for compensation dated 11 October 2020, you advised that your claimed psychological condition of “depression, anxiety, mental health injuries, and psychological injuries” occurred ‘during the course of your employment up until you ceased work on 14 August 2020’. You claimed that you were harassed, bullied and discriminated everyday by three work colleagues. You reported that you first sought medical treatment on 9 August 2020.
You stated: “We sorted parcel every day. Worked close to each other. I always got bullied, discriminated & harassed because of my religion, appearance & race. I was and is mentally injured because of what I have been going through at AusPost.”
On 27 August 2020, Dr Martin Hill diagnosed “alleged bullying and harassment by work colleagues both verbal and physical beginning 14/05/2020. Anxiety, depression with insomnia”, and retrospectively certified you totally incapacitated for work from 4 August 2020 to 18 August 2020.
You continued to attend consultations with Dr Hill, who maintained his diagnosis, and continued to certify you totally incapacitated for work.
Information made available indicates that you did submit a Harassment, Discrimination and Bullying complaint to my HR for investigation.
In correspondence dated 23 November 2020, Ms Maree Lotstra, Employee Relations Case Manager, advised that all allegations made by you against your work colleagues were not proven.
You were provided with correspondence dated 21 January 2021, which detailed that your complaint of Bullying and Harassment on Grounds of Religion and Physical Characteristics against three work colleagues were not substantiated, and therefore not considered to be breaches of the Australia Post Harassment Discrimination Bullying Policy or Our Ethics.
The determination dated 25 January 2021 denied liability for compensation for your claim as the claims manager was not satisfied that your claimed condition arose out of, or in the course of, your employment with Australia Post.
Medical evidence
Associate Professor Abdul Khalid (A/P Khalid), Consultant Psychiatrist, in a medico-legal report of 22 July 2021 opined:
DIAGNOSTIC ASSESSMENT
Ms Yawari is a 20-year-old female who started as a casual parcel sorter with Australia Post on 29 April 2020. Ms Yawari alleged being bullied and harassed by a worker named Carmel. She said that Carmel used to make comments about her religion and fasting during the month of Ramadan. She alleged that Carmel used to pinch her. She said that she reported these matters to her line manager Mary, who told her that she would talk to the Facility Manager. She said that she did not hear anything back and then Mary also started treating her the same way. She said that Mary was the only one who drove the forklift and she almost hit her a few times, and then apologised. She said that she kept quiet and tolerated everything because she needed money to pay her fees. She said that on 3 August 2020 she had gone to the carpark to get a cutter and when she came back, Mary yelled at her in front of everyone. She said that the next day she had a meeting with the manager who told her that it was not fair what had happened to her, but he said that he needed all the workers during COVID-19. She said that she stopped working and saw her GP on 9 August 2020.
Ms Yawari said that she felt stressed and had disturbed sleep. She said that she was losing weight. She used to work nightshift at Coles, which she has stopped. She started seeing psychologist Dr Andrew Plewa under a Mental Health Care Plan. She was prescribed Seremind to help with her sleep, but it did not work, and then she was prescribed Mirtazapine and currently she is taking 45mg daily, along with antianxiety medication Quetiapine 25mg night-time.
Ms Yawari said that she was studying nursing at Federation University, and she struggled with her studies and changed to part-time this year but still did not perform well in her assessment in the semester. She said that she was struggling with her concentration.
Ms Yawari said that she still has difficulty going to sleep and has bad dreams. She said that she feels sedated during the day due to the medications. She reported loss of appetite and weight. She had loss of energy and motivation. She stopped talking to her family and just sits in her bedroom. She does not do any household chores or cooking. She did not report any past history of any psychiatric illness.
On mental state examination, Ms Yawari was tearful during the interview. She reported her mood as more depressed than anxious. She said she cries when sits alone. She said that she keeps thinking about what happened at work. She said that she feels helpless and expressed some passive death wishes with no suicidal plan or intent.
Based on the history, mental state examination and the documents provided to me, in my opinion Ms Yawari's diagnosis is an adjustment disorder with mixed anxiety and depressed mood according to the DSM-5 diagnostic criteria.
Diagnosis.
I consider that Ms Yawari's diagnosis is an adjustment disorder with mixed anxiety and depressed mood according to the DSM-5 diagnostic criteria.
Prognosis.
Ms Yawari's prognosis is guarded because her symptoms have not improved despite treatment with antidepressant medication and sessions with her psychologist.
The relationship between our client's injury and employment, if any. In particular, whether you believe that our client's employment has caused, aggravated or accelerated any underlying condition.
I consider that Ms Yawari's adjustment disorder with mixed anxiety and depressed mood has arisen as a result of Ms Yawari's employment with Australia Post as she felt bullied, harassed and discriminated due to her religion. She did not report any pre-existing psychiatric condition.
Whether you believe that our client’s employment has significantly contributed to her condition.
Based on the information provided by Ms Yawari, I consider that her employment is the significant contributing factor for her psychiatric condition.
In relation to our client’s condition, what is her capacity to work in the pre-injury role.
I do not consider that Ms Yawari has any capacity to return in her pre-injury role.
Associate Professor George Mendelson (A/P Mendelson), Consultant Psychiatrist, in a medico-legal report of 18 February 2022 opined:
In relation to your questions whether in my opinion Ms Yawari has "a diagnosable psychological condition", based on the examination on 1 December 2021 and information concerning the symptoms she had described since August 2020, as set out in the documents that I received and referred to above, in my opinion she is net mentally ill, and does not have any diagnosable psychiatric disorder.
In reviewing the chronology of the emotional symptoms described to me by Ms Yawari, and the relevant information in the clinical records that I received, subjected to harassment and bullying that started a few weeks after she commenced work with Australia Post in late April 2020, the text messages exchanged by her and two of the alleged perpetrators, dated between 30 May 2020 and 17 July 2020, appear to have been friendly and do not indicate any problems in their relationship. I also noted above that according to Ms Yawari's Applicant Statement the alleged harassment by Carmel Triantaflaros had started on 14 May 2020. note that although she told me that she had been
The clinical records obtained from Dandenong Superclinic, to which I referred above, do not contain any contemporaneous entries in relation to Ms Yawari having attended with complains of emotional symptoms during the time she worked at Australia Post, or having attended with any bruises that she alleged had resulted from physical abuse at work. The first mention of any work-related problems was in the entry dated 9 August 2020 after she had resigned - when it was recorded that
Ms Yawari complained of "not having good sleep" for a week, and it was also stated "Stress due to work; Arguments at work place; Keep thinking about it". There was no mention of the nature of the "stress”, and no mention of problems at work other than "arguments".
I noted above that the summary of emotional symptoms stated "Anxious”, but there was no mention of any specific manifestations of anxiety. It was specifically stated "Normal mood".
Whilst it could have been the case that Ms Yawari had been involved in arguments at work, and that this had been associated with understandable emotional distress, leading to sleep disturbance and "thinking about it", in my opinion there is no basis for the view that at the time Ms Yawari presented with a diagnosable mental disorder.
I have also referred above to the Investigation Report, dated 15 January 2021, in relation to Ms Yawari's allegations of harassment, discrimination, and bullying by three co-workers at Australia Post. I note that there were 20 specific allegations dealt with in this report. The three alleged perpetrators, as well as four witnesses, were interviewed, as was Ms Yawari. I note also that with respect to each of the 20 allegations, it was concluded by the Investigating Officer that "Based on all the available evidence I find that the Allegation is: Unsubstantiated" or "Unable to be substantiated”.
Whilst Ms Yawari presents as becoming entrenched in the role of an injured and disabled person, in my opinion her current emotional symptoms cannot be attributed to any ongoing stressor related to her employment with Australia Post from which she resigned on 4 August 2020.
In my view the factors that are perpetuating her emotional symptoms are related to unemployment and financial difficulties, and ongoing involvement in a workers' compensation claim, and litigation, as well as what in my view can be most accurately described as embitterment, as discussed in the enclosed article by Sensky.
"Embitterment" is not a mental disorder, albeit is has been described by Sensky as a "condition . . . characterised by a combination of features" such as "anger, rumination, helplessness and appraisals of injustice, all focused on the cause of the embitterment". Sensky also referred to other psychiatric literature that described embitterment as "an emotion encompassing persistent feelings of being let down, insulted or being a loser, and of being revengeful but helpless".
CONTENTIONS
Ms Yawari

Counsel submitted Ms Yawari:
·has been diagnosed as suffering from an adjustment disorder with mixed anxiety and depressed mood;
·psychological condition arose out of or in the course of her employment with Australia Post and continues to be significantly contributed to by her employment with Australia Post;
·has been and remains totally incapacitated for work at Australia Post as a result of her psychological condition;
·has required and continues to require reasonable medical treatment for her psychological condition; and
·is entitled to compensation for her claimed psychological condition pursuant to section 14 of the SRC Act.
Counsel contended Ms Yawari went from being a nineteen-year-old who was incredibly motivated and hardworking (performing two jobs and studying nursing) to someone who could not continue to work for Australia Post and suffering a variety of symptoms.
Counsel contended Ms Yawari’s employment at Australia Post was very important to her, she was extremely keen to work to finance her tertiary studies and to financially assist her family. That within a short period of time after commencing her casual role at Australia Post she was subjected to bullying and harassment of both a physical and verbal nature. Counsel contended Ms Yawari was a vulnerable person, as she was young, a recently arrived Afghan refugee and someone keen to work.
Counsel contended the bullying and harassment was fairly unrelenting. However, Ms Yawari tried to deal with the bullying and harassment as best she could, fearing she would put her job in jeopardy if she reported the actions of her fellow workers. Counsel contended Ms Yawari tried to keep her head down, but the bullying and harassment continued for months and her ability to deal with it deteriorated over time.
Counsel submitted Australia Post’s own documentation defines the term ‘harassment’ as behaviour that: is directed at a person’s disability, sex, race, age, colour, national or ethnic origin, is of a sexual nature or other grounds described in the Harassment Discrimination and Bullying Policy, in circumstances where another person does not want and does not return; and offends, insults, humiliates, intimidates or embarrasses the person. It goes on to state that, “It is also against this policy to harass someone because of: … Physical features … Religion ….” [irrelevant attributes are not included]. Counsel contended the concepts of bullying and harassment are not confined to such attributes.
Counsel submitted Ms Yawari’s evidence was entirely credible as she:
·was in the witness box for three entire days of the seven days where evidence was received by the Tribunal;
·gave clear, cogent, consistent, forthright and frank evidence; and
·detailed precisely the difficulties that she encountered at the hands of others in the Australia Post workplace, most particularly Carmel Triantaflaros, a much older employee.
Counsel submitted Ms Triantaflaros was loud, confident, inappropriate, and made the work environment an extremely uncomfortable place for Ms Yawari to be. Counsel contended that Australia Post was a dangerous place for Ms Yawari, a place that caused her harm and has left her with lasting trauma.
Counsel submitted that Ms Heather Vu commenced work at Australia Post in early 2020 as a casual employee and was there in the period Ms Yawari worked there, corroborating many of the bullying and harassment complaints made by Ms Yawari. Counsel contended Ms Vu was a straightforward, clear witness of truth and that her evidence was compelling. Counsel submitted Ms Vu was horrified by what Ms Yawari was being subjected to and urged her to report the bullying. Ms Yawari was resistant to reporting the bullying at first.
Counsel submitted Ms Vu gave evidence that she was aware that Ms Yawari was being badly treated by others in her team, predominantly Carmel, who was verbally and physically bullying Ms Yawari.
Counsel submitted Ms Triantaflaros gave evidence to the effect that because she was teased as a child for having dark skin that she wouldn’t want to do that to other people. Counsel submitted it does not necessarily follow that if you’ve been bullied you won’t therefore bully someone else.
Similarly, Counsel submitted Ms Triantaflaros appeared to suggest because she has lots of Muslim friends, she wouldn’t act the way she was alleged to have acted towards Ms Yawari. Counsel submitted that having friends of a particular religion does not mean you would not denigrate that religion to someone else of that religion.
Counsel submitted Ms Triantaflaros claimed she had never said the Muslim religious requirements were stupid or weird. Counsel submitted Ms Triantaflaros’ suggestion that because she didn’t hate Ms Yawari or not like her that she wouldn’t do the things that had been alleged. Counsel submitted that bullying and harassment can occur even where the perpetrator doesn’t hate or considers they don’t dislike the person who is the victim of that conduct. Counsel further submitted that Ms Triantaflaros likely treated Ms Yawari as she did to keep herself mentally stimulated and entertained.
Counsel submitted Ms Triantaflaros’ claim that she had only been joking in respect of some of the allegations, did not ring true. Regardless, Counsel submitted that it was quite common for people who have done or said inappropriate things to defensively seek to justify their actions by claiming they were only joking. Regardless of Ms Triantaflaros’ perspective that she was only joking it had nevertheless had a detrimental impact on Ms Yawari’s psychological well-being.
Counsel submitted in respect of the Investigator’s report that:
·the findings were somewhat dubious and appear to take a particular unfavourable view of Ms Yawari;
·all the allegations were found to be either unable to be substantiated or unsubstantiated;
·the investigation and its conclusions do not appear to be balanced, sound or well-founded;
·whilst certain findings were made of events that were found to have occurred, the investigator appears to make assumptions that are not well founded;
·Ms Vu was not interviewed because she declined to be.
Counsel submitted that the Tribunal should place no weight at all on the investigation report as to do so would be unfair to Ms Yawari. Counsel submitted the Tribunal is in a very good position to assess Ms Yawari’s evidence and her complaints of bullying and harassment, and the relevant medical evidence.
Counsel submitted the Respondent conceded the investigation report is “now effectively irrelevant because you are making the decision based on everything.”
Counsel submitted Ms Yawari’s allegations of being repeatedly bullied and harassed at work are credible and serious and the allegations are not fictitious but based on real incidents in the workplace.
Counsel submitted the Tribunal ought to be satisfied that those events did occur as described by Ms Yawari and Ms Vu. Counsel submitted the events have caused Ms Yawari psychological harm and have resulted in her having a psychological injury, incapacity and requiring medical treatment.
Counsel submitted the Federal Court considered mental injury in the decision of Comcare v Mooi (1996) 69 FCR 439 (Mooi) holding that a mental injury does not exist until the employee’s psychological condition moved beyond a normal human reaction to the circumstances that give rise to the condition. Counsel submitted that Ms Yawari’s psychological injury is beyond that of normal human reaction and was not merely resentful or embittered. Counsel submitted that Ms Yawari can no longer function properly, her symptoms remain severe and seemingly intractable.
Counsel submitted Ms Yawari’s psychological injury ought properly be diagnosed as a chronic adjustment disorder with mixed anxiety and depressed mood. Counsel relied upon the opinion of A/P Khalid, a consultant psychiatrist with a special interest in adult psychiatry and trauma and stress-related disorders. Counsel submitted A/P Khalid mostly deals with adult patients, and forensic aspects of adult patients, and trauma and stress-related disorder in adult patients.
Counsel submitted A/P Khalid diagnosed Ms Yawari as having an adjustment disorder with mixed anxiety and depressed mood. Counsel submitted an adjustment disorder is a response to a stressor and A/P Khalid considered the relevant stressor was the alleged bullying and harassment at Ms Yawari’s workplace. Counsel submitted A/P Khalid noted Ms Yawari presented with symptoms of depression and anxiety.
Counsel submitted Ms Yawari first sought medical assistance from Dr Sajeewa a few days after she stopped working on 9 August 2020, advising Dr Sajeewa she wasn’t feeling well, couldn’t sleep, can’t have her room dark, was waking and having nightmares. She continued to see Dr Sajeewa every few weeks and a Mental Health Care Plan was arranged.
Counsel submitted any suggestion that the symptoms Ms Yawari suffers were due to any pre-existing condition were not borne out by the evidence as Ms Yawari was physically well and capable and motivated to work two jobs and study until after the bullying and harassment at Australia Post began to take a toll on her health.
Counsel submitted both A/P Khalid and A/P Mendelson took histories from Ms Yawari that include her difficulty in going off to sleep and waking due to bad dreams.
Counsel submitted A/P Khalid found Ms Yawari was preoccupied with the alleged harassment at the workplace. A/P Mendelson agreed with that but described her as being resentful, aggrieved and embittered about it. Counsel submitted that is the enduring stressor that Ms Yawari suffers and continues to suffer making her adjustment disorder chronic. Counsel submitted A/P Mendelson confirmed that by definition if an adjustment disorder persists for longer than three to six months, it can be termed chronic.
Counsel submitted A/P Mendelson said it wasn’t unusual for someone who had formed the view they were bullied, harassed, victimised or treated unfairly to continue to struggle with the fact that they didn’t stand up to their harassers. Counsel submitted A/P Mendelson stated that, “it’s very often that people who they consider themselves are being harassed do not respond to it because they don’t want to exacerbate the tension between themselves and the other individual at the workplace. So, yes, I mean I would agree with what you’re putting to me that it does happen. And then in retrospect people might feel, “Well maybe I should have reacted in a different way.” Yes.” “That description of those regrets, the grievances, the embitterment, that’s all part of the trauma that she’s suffered from the interactions at work that she’s described as bullying and harassment isn’t it? --- She experienced all of that as a stressor, yes. I’m not quite sure I would agree with you that it’s trauma but, you know, my concept of trauma perhaps is somewhat different. But, yes, it was a stressor, yes.”[1]
[1] Transcript (2 May 2023) P-615-616.
Counsel submitted A/P Mendelson accepted that he based a number of his conclusions on the findings of the investigation report that found none of the allegations were substantiated. Counsel submitted A/P Mendelson accepted it to be unlikely that Ms Yawari would ever return to Australia Post. Significantly, Counsel submitted A/P Mendelson in his report considered it appropriate for Ms Yawari to take medications for her anxiety and depressive symptoms and to continue to attend a psychologist.
Counsel submitted A/P Khalid noted the symptoms he would expect of someone having been subjected to such bullying and harassment include: depression; numbness; emptiness; frustration; small issues seeming big; feeling hopeless; irritation (Ms Yawari gave evidence of snapping at her father); losing enjoyment in things that would normally make you happy; feelings of anxiety that don’t go away; having negative feelings that last for a long time (this may include feelings of embitterment, feeling resentful, feeling remorse and regret and feeling aggrieved); constantly worrying about life; anxiety straining friendships and family relationships; having trouble concentrating or focusing; having difficulty calming down (Ms Yawari gave evidence of crying repeatedly throughout the day); insomnia; having an upset stomach; suffering nausea; experiencing muscle aches; crying often or uncontrollably; avoiding stressful situations (Ms Yawari left her work at Australia Post and later Coles for a time); skipping activities that you enjoyed before.
Counsel submitted A/P Khalid confirmed Ms Yawari did not give him any history of hallucinations but stated they can occur in depression as well. “Some people can have pseudo-hallucinations, some people actually, the memories of what happened, they sometimes misinterpret as hallucinations”. He considered it would need a “psychiatric evaluation as to whether the reported symptom is actually hallucination or a flashback or her intrusive memories of what happened at her workplace. I cannot comment whether they were hallucinations. That may be her perception. Or the tribunal’s opinion. But that’s a layperson’s interpretation. Hallucinations, they require lots of questioning about this, and lots of people experience pseudo-hallucinations. It’s a very common phenomena. And if she was having hallucinations actually, her diagnosis becomes more severe condition. Major depressive disorder with psychotic symptoms.” “90 per cent of patients, they misinterpret what hallucination is.”[2]
[2] Transcript (8 February 2023) P-358-360.
Counsel submitted A/P Khalid’s evidence had been if Ms Yawari had reported hallucinations to him that would not indicate a psychiatric condition that couldn’t have been triggered by workplace trauma. Counsel submitted A/P Khalid’s evidence had been that depression can be triggered by workplace trauma and people experiencing major depression can experience hallucinations, “if she had told me those things my diagnosis probably would have been major depressive disorder with psychotic features, would have been more serious than adjustment disorder.”[3]
[3] Ibid P-368.
Counsel submitted A/P Khalid’s evidence had been he was really cautious in labelling someone as having had hallucinations because of the psychotic stigma that attaches to that. Counsel submitted A/P Khalid’s evidence was that if Ms Yawari’s diagnosis becomes major depressive disorder with psychotic features he considered she wouldn’t have any capacity and observed there were no features or history of borderline personality disorder.
Counsel submitted Ms Yawari’s injury, was an injury simpliciter.
Counsel submitted Ms Yawari’s psychological injury is one that has arisen in the course of her employment with Australia Post and her employment has significantly contributed to her injury. Counsel submitted Ms Yawari is permanently incapacitated from being able to work at Australia Post.
Counsel submitted that the requisite causal link exists. Counsel contended that indeed no plausible alternative for Ms Yawari’s symptoms has been identified by the medical witnesses and no non-work-related matter has been identified as contributing to Ms Yawari’s psychological injury.
Counsel contended Ms Yawari deserves to be heard, understood and believed in her complaints of bullying and harassment. Counsel submitted that based on a fair and reasonable analysis of the evidence in this matter, the Tribunal should set aside the first decision under review and in substitution decide that Ms Yawari is entitled to compensation for her claimed psychological condition pursuant to section 14 of the SRC Act, and remit the matter to the Respondent to then assess and determine Ms Yawari’s entitlements pursuant to sections 16, 19, 24 and 27 in accordance with the Tribunal’s determination and findings.
Australia Post
Counsel contended that the decisions under review should be affirmed as Ms Yawari did not suffer a diagnosable mental disorder at the time of her employment with Australia Post. Fundamentally Counsel contended that any incapacity for work or need for medical treatment experienced by Ms Yawari were not due to a compensable psychiatric condition and, therefore, Australia Post had no liability under section 14 of the SRC Act.
Counsel contended that Ms Yawari had not been a witness of truth. Counsel contended Ms Yawari had provided evidence she believed was beneficial to her consultant psychiatrist and to Ms Lostra in the review process and at the hearing.
Counsel submitted Ms Yawari had failed to provide either doctor with a full medical history; nor report symptoms of hallucinations or suicidal thoughts; nor that she had reduced or stopping taking prescribed medication for her psychological condition; nor had she advised she had returned to work at Coles.
Counsel submitted Ms Yawari had not advised Ms Lostra she had any concerns with the investigation or that she was continuing to work at Coles.
Counsel submitted Ms Yawari’s evidence at the hearing was self-serving, contradictory on occasions and not supported by any of the other witnesses, including Ms Vu who had been called by the Applicant to support her claims of bullying and harassment. Counsel submitted Ms Yawari had exaggerated her evidence, lied about not working at Coles, failed to advise doctors about what medication or dosages she was taking, had exaggerated her financial support of her family, misled about the number of times she had seen Mr Plewa and was generally prone to say what served her cause and not the truth.
Counsel contended the Tribunal should also place doubt on Ms Vu’s testimony and find Ms Triantaflaros and Mr David Minnala were both credible witnesses.
Counsel submitted that Ms Yawari does not have a condition outside the boundaries of normal mental functioning and behaviour as Mooi. Counsel submitted that the accepted test in Mooi was ‘the difference between a person experiencing psychological symptoms and having clinically significant symptoms sufficient to attract a diagnosis of a psychological condition, even though that condition may not be able to be identified with a label of a recognised medical condition.’
Counsel contended it relied on the opinion of A/P Mendelson as set out in his report and oral evidence. In their final written submission Counsel submitted that A/P Mendelson disagrees with A/P Khalid’s opinion (diagnosed adjustment disorder with mixed anxiety and depressed mood) and stated that in his opinion the Applicant was not mentally ill and did not have a diagnosable psychiatric disorder when seen. While the Applicant reported experiencing psychological symptoms they could not be described as a detrimental disorder but rather she was resentful and aggrieved and developed a sense of embitterment because she felt she was unfairly treated. It was not a mental disorder. It is not an adjustment disorder because there is no longer a stressor present. It is an existential reaction to an event in one’s life.
Counsel submitted that if the Tribunal found Ms Yawari had clinically significant symptoms that attracted a diagnosis of a psychological condition, that the condition needs further investigation and opinion provided to determine the nature of the condition and when the condition manifested. Counsel submitted some of the evidence given by Ms Yawari pointed to a potential diagnosis of paranoid illness raised by A/P Mendelson such as:
·Constantly being followed around in particular to her car by Carmel who was muttering and saying things under her breath.
·She heard people talking about her in a negative manner, although she could not hear what they were saying, she understood it was negative and it was about her.
·Visual and auditory hallucinations.
Counsel contended that the decision in Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 (Whisprun) should be adopted by the Tribunal. Counsel argued the test in Whisprun was that if the history an applicant gave to the medical experts called to provide evidence at the hearing was not supported by the evidence, then the basis for the opinions expressed could not be supported. Counsel submitted the evidence provide by Ms Yawari to the medical experts was not the evidence before the Tribunal therefore their opinions should not be adopted by the Tribunal.

Counsel submitted that a consideration of the evidence by Ms Yawari, Ms Vu, Ms Triantaflaros, Mr Minnala, and the statements given by other witnesses to Ms Lostra do not support Ms Yawari’s complaints of bullying and harassment.
Counsel submitted Ms Yawari had long-standing and significant health issues including vitamin D and iron deficiency, polycystic ovary syndrome with manifestations of acne, hirsutism affecting her face and neck, short stature that caused her concern, hair loss, weight loss, body aches and feeling tired and weak, all of which pre-dated any employment with Australia Post.
Counsel submitted that many of the symptoms complained of by Ms Yawari both before and after her employment with Australia Post were attributable to her polycystic ovary syndrome, vitamin D or low iron conditions.
Counsel submitted Ms Yawari had not attended her GP on any occasion between 14 May 2020, when she alleged the bullying started, and 9 August 2020—5 days after she ceased work at Australia Post. Counsel submitted there were no contemporaneous medical records to support Ms Yawari’s allegations of marks or bruising caused by pinching or punching, or history of bullying and harassment.
Counsel submitted it was not until 9 August 2020 when Ms Yawari first attended her GP in respect of this matter that she described poor sleep for one week, arguments at work and stress due to work. Counsel submitted it was not until the 27 August 2020 that Ms Yawari reported to her GP any allegations of being bullied, harassed, and discriminated both verbal and physical but that she did not give details.
Counsel submitted there was no notation in any of Ms Yawari’s medical records which record that she had an allergy to fish.
Counsel submitted Ms Lostra was appointed and undertook an investigation into Ms Yawari’s application to Fair Work alleging Ms Triantaflaros, Ms Jansz and Ms Barber had engaged in behaviour towards her that was potentially in breach of Australia Post policy and ethics. Counsel submitted Australia Post did not rely on the report or its findings. Further, Counsel submitted the investigation, and its conclusion/findings were not relevant to this proceeding as it was not related to a claim for reasonable administrative action taken in a reasonable manner.
However, Counsel submitted that the statements given by the witnesses to Ms Lostra were relevant insofar as many of these witnesses are no longer available to Australia Post and the responses provided and recorded by Ms Lostra were made at a time closer to the actual events complained of by Ms Yawari.
Counsel submitted that Ms Yawari’s numerous claims of bullying and harassment had simply not been made out and there was no link between her claimed condition, which was not conceded, and her work at Australia Post.
CONSIDERATION
At the commencement of the hearing, it was agreed by the parties the Tribunal’s role would be limited to a determination of section 14 of the SRC Act: was Australia Post liable to pay compensation to Ms Yawari for her claimed workplace injury. The parties agreed should the Tribunal find Ms Yawari had a compensable claim under section 14 the determination would need to be remitted to Australia Post to make a determination in respect of liability under sections 16, 19, 24 and 27 of the SRC Act.
The Tribunal notes (like numerous Tribunal Members before) the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an "injury":
…First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to 'disease' or 'physical or mental' injuries and, at least to that extent, it assumes that an employee may sustain more than one 'injury'. The use in s 24(1) of the indefinite article in the expression 'an injury' reinforces that conclusion
The distinction between sections 5A(1)(a) and 5A(1)(b) of the SRC Act is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) will determine the applicable test for determining the contribution of work to an injury.
Specifically, for there to be an injury (other than a disease) (often referred to as an ‘injury simpliciter’), the injury must arise out of, or in the course of, employment (section 5A(1)(b)).
An injury simpliciter (within the meaning of section 5A(1)(b)) can be contrasted with a "disease" which, according to section 5B(1), must be contributed to, to a significant degree, by the employee's employment. Thus, a "disease" requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268) than that required for an injury simpliciter.
The Tribunal, based on all the evidence before it did not find that Ms Yawari’s allegations of bullying and harassment could be considered an injury simpliciter. The Tribunal, based on the evidence in Ms Yawari’s specific circumstances, and the preponderance of case law found that Ms Yawari’s claimed condition of adjustment disorder with mixed anxiety and depressed mood was an ailment being a disease.
The Tribunal is required to base its determination on the precise evidence from Ms Yawari’s particular circumstances. The Tribunal considered this on the basis of the following:
(a)Did Ms Yawari suffer from a medical condition encompassed in her notices of injury and compensation claims?
(b)If she does, is the condition outside the boundaries of normal mental functioning and behaviour?
(c)If it is, has Ms Yawari’s claimed condition arisen in the course of her employment and been contributed to, to a degree that is substantially more than material, by her employment?
The authority in Mooi as articulated by Justice Drummond requires the Tribunal to determine whether Ms Yawari suffered a condition outside the boundaries of normal mental functioning and behaviour. In the case of Mooi, the Respondent appealed the decision of the Tribunal which had found that Mr Mooi was entitled to compensation even though he had not suffered a mental illness. In his determination Drummond J observed:
...It seems clear that the Tribunal found that the respondent was entitled to compensation on the basis that, although he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of the work-related stress he was subjected to, the condition that those stressors contributed to produce in him, which the Tribunal described as ‘psychological stress’ and ‘work-related stress’, had an effect on his capacity for work and was still sufficient to amount to an injury within s 14....
Drummond J determined the Tribunal’s approach was erroneous and allowed the Respondent’s appeal:
A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease.
By s 4, the term "injury" means physical or mental injury other than disease, while the term "disease" means any physical or mental ailment, disorder, defect or morbid condition. The expression "ailment" is used in s 4 of the Act as a synonym for the term "disease". It is apparent, from the exhaustive meaning given by s 4 to the term "ailment", and from the ordinary meaning of that word - "a morbid affection of the body or mind; indisposition: a slight ailment" (Macquarie Dictionary) - that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
The definition provisions, which bring within the concept of "injury" mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee's mental condition is within the concept of an "injury" within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe.
But in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act 1988 to define the various forms of mental condition that can amount to "injuries" compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).
Did Ms Yawari suffer from a medical condition encompassed in her notices of injury and compensation claims?
The Tribunal found based on all the evidence that Ms Yawari was suffering from a psychological condition. The Tribunal relied on the following medical opinions:
(a)A/P Khalid’s diagnosis of an adjustment disorder with mixed anxiety and depressed mood according to the DSM-5 diagnostic criteria.
(b)Dr Sajeewa Elwitigaia’s, Ms Yawari’s general practitioner, referral dated 21 August 2020 to Mr Andrew Plewa, psychologist, for an opinion and management of anxiety and depression.
(c)Mr Plewa’s file notes:
(i)10 September 2020: difficulty coping, she does not know what to do now, lost, anxious, workplace has gone through the motions will they take her seriously
(ii)1 October 2020: is very effected by the event; No contact with company; going to GP; walks 1-1½ hours; memory affected; anxious; lost; very shut down does not want contact with anyone
(iii)7 December 2020: overwhelming sense of powerlessness, hopelessness; low mood major depression; Australia Post is not communicating with her, she does not know where she stands this also feeds her depression; difficult to talk to her as she was so low and affected
The Tribunal preferred the evidence of A/P Khalid:
What elements are significant in your diagnosis of that condition for Ms Yawari?‑‑‑Yes, adjustment disorder is a response to a stressor, and her stressor was due to bullying ‑ alleged bullying and harassment at her workplace, and she presented with symptoms of depression and anxiety. The DSM‑5 diagnostic criteria mentions adjustment disorder as a stressor‑related illness, and I did consider the possibility of major depressive disorder, but I considered that adjustment disorder was the most appropriate diagnosis in her case, based on her presentation and the context of her injury.[4]
Over that of A/P Mendelson:
Now, Professor Khalid said that he disagreed with you in the sense that he said, An adjustment disorder which continues for more than six months becomes a chronic condition and unlikely to remit so perhaps if I can get you to address that. Do you agree or disagree with what he says? - Well, I wouldn’t agree with that. I would say that it is not an adjustment disorder because there is no longer a stressor present. So it’s not an adjustment or anything that is recent or ongoing, but it’s really a sense of resentment and aggrievance and embitterment that persists which I do not consider to be mental disorders.
He also gave evidence that if the medication doesn’t work in six to eight weeks, it’s unlikely that there will be a significant improvement in the symptoms, do you ‑ ‑ ‑?‑‑‑Well, again, that was because I considered that the medication was not prescribed to treat a disorder, a mental illness, but not to treat but to manage manifestations of what I had referred to earlier as a sense of grievance, a resentment, or embitterment, because Ms Yawari considered that she had not been treated properly by her co-workers, so this was not amenable to medication because it was not an illness.[5]
[4] Ibid P-337.
[5] Transcript (2 May 2023) P-603-604.
The Tribunal was not persuaded by the evidence of A/P Mendelson, that Ms Yawari was embittered by her circumstances but was not mentally ill and did not have any diagnosable psychiatric disorder. The Tribunal did consider the symptoms Ms Yawari had reported to A/P Mendelson were a manifestation of a diagnosable psychiatric disorder and not simply a sense of grievance, a resentment, or embitterment.
The Tribunal considered A/P Mendelson’s assessment of Ms Yawari had been coloured by the Australia Post investigation which found no allegations of bullying had been made. You based a number of your conclusions on the findings of the investigation report; didn’t you? Yes, I noted that the investigation report found that none of the 20 allegations were substantiated, yes. The Tribunal preferred A/P Khalid’s diagnosis of Ms Yawari as it had not been influenced by the findings of the Australia Post investigation but were based on the history taken from Ms Yawari.
The Tribunal did agree with A/P Mendelson’s opinion that adjustment disorder is usually a self-limiting disorder which is based on the presence of a stressor and by definition of this diagnosis, the condition must end six months after the triggering event ends – that generally an individual’s symptoms will go away when their stressor goes away. However, the Tribunal considered that Ms Yawari’s adjustment disorder with mixed anxiety and depressed mood had become chronic and was not persuaded by A/P Mendelson’s view that the stressors Ms Yawari experienced would not give rise to a chronic condition:
And he states an adjustment disorder which continued for more than six months becomes a chronic condition and is unlikely to fully remit. You’d agree with that; wouldn’t you? Well, again, it depends on whether or not the stressor that awoke the - that triggered the adjustment disorder is continuing, and certainly one sees situations, for example, of someone who has chronic pain due to a physical injury. Because of chronic pain they have a chronic adjustment disorder, because of the persistent stressor. So, yes, it does occur but it depends on the context and whether or not there is an ongoing stressor that is maintaining the adjustment disorder.[6]
[6] Ibid P-622.
Is the condition outside the boundaries of normal mental functioning and behaviour?
The Tribunal, based in particular on the evidence of A/P Khalid, found Ms Yawari was exhibiting abnormal behaviour outside the boundaries of normal mental functioning.
That her prognosis was guarded, her symptoms had not improved despite treatment with antidepressant medication. And adjustment disorder which continues for more than six months becomes a chronic condition and unlikely to fully remit. So I understand that there may be barriers about the cost of psychological treatment, and also lack of perceived efficacy because of the treatment, and the reason she may have discontinued that treatment.
…..
What, if anything, do you say to that statement by Associate Professor Mendelson?‑‑‑I think his opinion is not in keeping with the history, especially the current symptoms which he had noted in his report.
So with those symptoms, and not giving a psychiatric diagnosis, I’m unable to understand what led to his conclusion, when the history is pretty clear. If you read the history, it’s very clear that she ‑ this girl is suffering from significant symptoms of anxiety and depression, along with loss of sleep and loss of appetite, and losing her weight. So I just could not comprehend the reasoning behind his reason that there is no psychiatric diagnosis.[7]
[7] Transcript (8 February 2023) P-338-339.
The Tribunal did not concur with the Respondent’s contention that Ms Yawari had long-standing and significant health issues which could account for the psychological conditions she reported to her general practitioner, Dr Plewa or those noted by A/P Khalid or A/P Mendelson. The Tribunal did not find Ms Yawari’s other health issues were significant or the underlying causation of her significant symptoms of anxiety and depression.
The Tribunal found Ms Yawari’s evidence at the hearing demonstrated she continued to ruminate over numerous incidents she had experienced at Australia Post. The Tribunal found Ms Yawari articled a consistent story about the incidents of harassment and bullying at Australia Post from the time she described her experiences at the meeting held by Mr Minnala on 4 August 2020 to those she expressed to Dr Plewa, to her descriptions to A/P Khalid and A/P Mendelson, to those expressed at the hearing. The Tribunal considered Ms Yawari’s detailed recollections of certain events and excessive recount of certain instances demonstrated she continues to struggle with the stressors she experienced. Ms Yawari’s evidence at the Tribunal was at times rambling and disjointed; Ms Yawari did not appear to be evasive but obsessed. Ms Yawari’s evidence before the Tribunal:
In your further statement, you spoke about there being an incident that happened when your parents took you camping?---Yes.
And you couldn’t sleep at that time?‑‑‑Yes, because I get scared a lot. Like I have trust issues. So, when we went there, we just - because I was hearing a lot of people are crying around me, so I had that - like the whole night and I was sleeping with mum, I was hugging her the whole night, and she said “What’s wrong?” I said, “Like I’m hearing like people like baby crying.” That was scary for me. She tried to calm me down and it was somewhere in the morning I fell asleep and then I woke up and I feel like my whole body was burning and it was like really hot as well, the weather, so mum said, “It’s fine, go to sleep” and I couldn’t sleep, and that’s when I come - I had the medication. I took mirtazapine, I think. I tried to sleep and then I couldn’t go to sleep for the first few hours and then that’s when I saw everyone go in the river and then - I didn’t tell anyone that I had my medication, I had taken my medication. I didn’t tell, I forgot about it.
When I went into the water, like I was with my families and all, so they put me – we went in the water – the water, that’s when I went – I lost – I got unconscious. Then with that – when like my brothers, like my brother and my dad – like explaining the situation because I can’t remember anything. So, dad said – he was the one in the water and then he got up and then he saw people like bouncing up and down in the water. Dad said, “When I saw everyone, like the guys who can swim, they’re professional swimmers, and I don’t know how to swim”, dad said like when he saw I was the only one missing. He said, “I panicked on the spot” and then he said “I jumped in the water.” He was in the water but he was on the shoreline. He said, “I jumped in the water. I kept looking – I kept searching for you.”
He said he couldn’t find me for two – one to two minutes and then he said all of a sudden I just popped up out of nowhere and then he said my eyes were closed and then – like a random guy from the camping area, he came and then I think he had one of those phones where you can use in the mountains and then he called the hospital and then we got ambulance there and then I think – I don’t know after how long they came as well, I was like – I was sleeping and then waking up. I didn’t remember anything and then that’s when I was taking to the hospital. I was taking to the hospital. I was there for roughly eight hours, I think, then – this was on the 31^st.[8]
[8] Transcript (28 November 2022) P-82.

The evidence from Ms Vu:
So even though Mary’s the, you know, theoretically the leader, was she in charge, was she telling you the hours and doing stuff?‑‑‑Well, according to David, when I did question him about Mary’s position there he said she was there as his eyes and ears, not to be appointed as a leading hand or a team leader or supervisor.[37]
And it all needed to be done?‑‑‑But then at the same time that conversation that I had with David that day to have that arrangement between myself and him, they, Mary and Charlie and even Jackie, they were all coming down on me like a tonne of bricks, okay, getting all angry and upset with me, saying, you know, “If you’re going to pull out it’s going to”, you know, “Destruct everyone’s” you know, “Hours”, and, you know, “We don’t want new workers to come in”, and what have you, and they were all talking behind my back directly in front of me, okay, during working time, and this was happening in the staffroom. They were all screaming and yelling at me, you know, amongst the drivers and, you know, and the other colleagues. I felt really, you know, sort of upset; why did they, you know, treat me like that, how come they didn’t treat Gay in that manner?[38]
[37] Transcript (8 February 2023) P-408.
[38] Ibid P-409.
And the evidence of Ms Triantaflaros:
Okay. So when the applicant came back from getting her cutter from the cart how was she behaving?‑‑‑Her and Mary had words because I think Mary didn’t know where she was. It’s like you need to tell anyone if you go anywhere and blah, blah, blah. And then I was just like, “I’ve had enough. I’m going home.”
So can you describe the applicant’s behaviour on that occasion? That you observed before you left? Was she yelling? Or screaming or talking or ‑ ‑ ‑?‑‑‑They were both exchanging words. I don’t know if they were yelling or not but they were both - yes, they were both talking. I don’t know. I can’t really remember if it was - I think at one stage they were - they were - I don’t know yelling. But it was so long ago. I don’t know.[39]
[39] Transcript (1 May 2023) P-503.
The Tribunal found this incident highlighted the lack of any actual supervisor structure at the facility. The Tribunal did not find this incident in particular was a stressor on Ms Yawari but it did seem to be a tipping point in her perception that the entire workplace was out to get her. The Tribunal concluded this incident was the catalyst for management actually becoming aware of Ms Yawari’s perception she was being bullied and harassed.
The meeting initiated by Mr David Minnala, the facility manager, on 4 August 2020
The Tribunal found the meeting called by Mr Minnala to clear the air amongst the staff was the final straw for Ms Yawari. She went to the meeting stressed; Ms Vu was not present, and she left feeling not believed or heard.
You said Mary had said something to David that got Heather sacked?‑‑‑So, in the meeting she was - yes, so, when Heather she called me, she said Mary was talking, like defending Heather, that - she was making things up that Heather’s nice, this, that, but then in the meeting I saw, like, it was opposite. Mary was saying a whole different thing about Heather.
What was she saying about Heather in the meeting?‑‑‑She was - she’s leaving the workplace, she’s not listening, she’s been supporting Charlie, they’re the same team - she was saying a lot of stuff. And then that’s when I found out that she - Heather - she just called me that Mary’s calling her; they’re talking, but deep down here in the meeting she’s the one talking bad about Heather. And then after when I was sitting with David, David Manoa, the manager in the meeting, because everyone’s gone on the floor, it was just me and him, and then that’s when he even told me; he said I wonder why Mary was - when I talked about Mary, everything, when he found out about the whole thing at work, that’s when he said I wonder why Mary’s saying this about Heather, and then he asked me, he said do you know why Heather’s here not anymore, and then I told him. I said yes, Heather she called me and she asked me why she’s not here anymore.
But why would he say do you know why Heather’s not here anymore if he sent the text to Heather terminating her?‑‑‑Because he wanted to find out from me as well if I was talking to her, and I said yes, we talked in the morning and then she called me in the morning before I came to the meeting.
Hang on, you said Heather said she got a text from David terminating her employment?‑‑‑She just told me that she’s not going to work anymore. She said ‑ ‑ ‑
No, that’s different?‑‑‑Yes, so - because you said the word, that’s why I used the word. It’s not like she told me she got terminated. She said Heather - I think - I don’t know if she said call, text or anything. She just - all I can remember she said she’s not meant to go to work anymore, and then she said I really need to know the reason. And then, at the same time, she told me that she was going to leave this work anyway, and she said she was looking forward to going to her other job. I think it was Chrisco or something. I can’t remember.
Chrisco?‑‑‑Yes.
Yes, because she was an agency employee for a limited period of time?‑‑‑Yes.
And she left to go and work at Chrisco, and then she came back and worked at Australia Post?‑‑‑And then she wanted to go back there.
Yes?‑‑‑She was talking about it with everyone, even Charlie and Carmel, they knew about it as well.
So Heather didn’t go to the meeting, because she was sacked by David on the 4th, did she? That didn’t happen?‑‑‑See, like, with this I’m not sure if it was the day before she got the text or the call or anything, or it was on the meeting day, because she called me that morning. Heather called me before the meeting, and then she said I’ve been - like, Mary, she called me - and then she said did Mary call you as well. I said no. And then she said Mary called me and then we talked for so long, and then she was talking about you, like, she was swearing at you the whole time - she was so mad, this, that - and I told her everything as well, and then she said she’s not going to work; she’s told not to come to work anymore. So after everyone was gone on the floor, that’s when I had a talk with David, because he said, like, we need to talk, and then when I told everything and then when he said I wonder why that Heather’s not here anymore, like, why Mary was saying all this stuff, and then I told David everything, how they were treating me and Heather differently. So meaning, because Heather she was the one telling me to go report, they started hating Heather as well. Sorry, I mean Heather, she was the one telling me to go report everything to Mary, so that’s why they started hating Heather as well. So Heather was the one getting treated differently as well. And then, after, I think I got a call again from Heather saying that I had a talk with - because when I talked with Heather she said there’s no way I’m going to leave this, I need to find out, like, why I’m not going to work - so she said I was going to leave this work anyway, but then she said I don’t want to leave it just like that, people saying stuff about me and then me leaving. She said I have to clarify this. And then, after some time, I don’t know how long, she called me saying that I’m going to David, I’m going to have a talk, and then she called me again. She said I went to David, we had a talk, and then she said now I don’t trust anyone, I don’t trust people, I didn’t know, like, Mary was doing that. She was calling me, talking bad about you, behind my back, and then - no, she was talking bad about you behind your back, and then in the meeting she was talking bad about me. And then I told her, I said yet in the meeting she was, like, saying a whole different story about you; how come she’s calling you and then doing that. And then she said how dumb of her not knowing that we were talking, meaning she’s doing that in front of you and then she’s doing that in front of me about you. So after some time I found out again that she’s gone back to work, and then she said that because she had a talk with David, now that David knows everything about everyone, she said she’s going back to work, and then she said now it’s more strict, like, David is really strict on us, and then she said because before David was - we were getting a lot of breaks; we were on the floor and then we were in the break room. So with that one, Heather said David has gone really harsh now. He’s, like, keeping an eye on us; he doesn’t trust us anymore. And then she said yes, it’s good, like, you’re not here anymore, but she said at the same time I wish you were here, because it’s not like before any more.
I’m uncertain about what you’re saying about Heather not attending the meeting. Are you saying she was sacked, terminated, told not to come to work anymore by David?‑‑‑With the meeting she was not even invited.
No, that’s not what I asked you. I asked you are you saying she was sacked, terminated, told not to come in by David on 4 August?‑‑‑She said she was told not to come to work anymore; she’s not coming to work anymore.
And she didn’t tell you that that was the arrangement and she had a contract at Chrisco and she was going to work there?‑‑‑So with that, she was the one asking me what had happened at work, and then she said this text was, like, very unexpected. That’s what she told me, and then she was the one - Heather was the one questioning me. She said I’m confused. She said what the hell happened at work yesterday, and then she said if it was between you guys how come she lost her job. That’s what she asked me.
So, Heather, who’s coming to give evidence ‑ ‑ ‑?‑‑‑Yes, sure. Yes.
She will have a copy of that text from David, we assume?‑‑‑Yes.
Yes, because she told you she got a text.
MS SERPELL: Well, honestly, how could this witness know whether she had a copy of the text or not from something two years ago?
MS MCMAHON: Well, she said she got a text ‑ ‑ ‑
MS SERPELL: Yes, but how can she know she’s still got it?
SENIOR MEMBER: Yes, but she mightn’t know if she’s still - yes.
MS MCMAHON: She mightn’t - okay. But that’s what she told you ‑ ‑ ‑
SENIOR MEMBER: But you’ll be able to put it to her, did she get a text.
MS MCMAHON: And was she terminated. Yes. Now, then you said - that was the discussion you had before the meeting with Heather, is that correct?‑‑‑Yes, it was, like, right before the meeting.
And then Heather said Mary had already called her that morning?‑‑‑That morning, yes.[40]
MS SERPELL: So how did the meeting come to an end?‑‑‑So, with the meeting, David told everyone to go on the floor except me. He kept me behind. And then that’s when he asked more. And then David was very upset as well, the way Mary was acting. He even told Mary to calm down. And then, so, he kept me back and then he sent everyone on the floor. And then he said, like, “Can you tell me more about it”. And then he even told me, he said, like, “Why didn’t you report everything to me?” And then, that’s when he - he felt for me as well, because he saw, and then he felt as well. And then he said, “I’m sorry, if I knew all this going on, if it was, like, if I knew this stuff were happening on the floor, I was going to help you, for sure”. And then he said, like, why I didn’t report anything to him. And then I told him, as well, “I’m new, the one who advised us to report everything to Mary or if we need any help we should go to Mary”. And then, yes, so we talked about it. And then that’s when he told me, like, if I need any kind of help, as well, from HR or anything. He said, “I can write a letter. I can write a letter for you”, and then he said - he said, “By looking at the meeting, I can tell, like, all this stuff has gone - like, you have gone through all this stuff”.[41]
What time did you arrive there?‑‑‑Probably was 9.30 or, like, a bit, like, later. I can’t remember. Because, yes, sorry; I was talking to Heather. Heather, she called me that day. Heather, she called ‑ ‑ ‑
Was Heather at work?‑‑‑No.
Where was Heather?‑‑‑So - so it was before the meeting, Heather was at home. And I was at home as well. She called me. She was very upset. She was, like, she said - I think she got a text or a call. I’m not sure. She said she got one of them from David, that she’s not meant to come to work anymore.
David Manoa told her not to come to work anymore?‑‑‑Yes. And then she ‑ ‑ ‑
Did he say why?‑‑‑That’s something she was concerned about. She was really upset. She’s like - she’s like, “This is very unappropriate (sic)”. She’s like, “I don’t even know, like, why I don’t - I’m not meant to go to work”, and she’s like, “I don’t even know the reason”. And then she told me that she already got a call from Mary as well.
What did she say about the call from Mary?‑‑‑She said Mary, “She was talking - she was talking really bad about you. Like, the whole time she was saying, like, she was”, she said, “She was swearing at you”. And then she said - so, Mary was defending her while she was talking to her on the call, and then she was talking bad about me. So when I went in the meeting, that’s when she was talking bad about Heather.[42]
[40] Transcript (29 November 2022) P-174-176.
[41] Transcript (28 November 2022) P-56.
[42] Ibid P-52.
The Tribunal considered Ms Vu’s own concerns about the team now hating her as she did not wish to work overtime blurred her perception of the meeting. Ms Vu was not at the meeting but spoke to several people before and after the meeting. The Tribunal found the following evidence reinforced Ms Yawari’s perception she was definitely on the outer with her co-workers:
When did you call up Mary?‑‑‑The actual morning of that meeting. Because I’d been stood down, so I was wondering what has happened in order for me to be stood down. I didn’t understand the reason behind the whole incident.
So what time did you speak to Mary?‑‑‑It was early in the morning. As soon as the agency called me at around 7 o’clock in the morning, that’s when I woke up and called up Mary and Carmel.
You told Shaista that when you were having this conversation with Mary, she was speaking badly about her, is that true?‑‑‑Badly about who? About Shaista?
Shaista, yes?‑‑‑Yes, that’s correct.
What was she saying?‑‑‑She was saying that Shaista was a trouble maker.
Yes?‑‑‑And that she was a liar.
Yes?‑‑‑That’s about it.
Okay. And this just came out of the blue to this discussion at 7 am?‑‑‑Pretty much.
Okay. Shaista said that Mary rang you the night before the meeting as well?‑‑‑That’s correct.
So you’ve had two conversations with Mary?‑‑‑No, actually, can I just correct that. The first conversation I had with Mary was just a simple, “Why did I get stood down?”, did she understand why. But the second conversation was when she engaged in a lengthy conversation with me bad mouthing Shaista.
Okay. So the short conversation with Mary is the one at 7 am on the morning of 4 August, is it?‑‑‑That’s correct.
Okay. The second conversation, when did that happen?‑‑‑That afternoon, that evening, after they all had the meeting.
Okay. Now, Mary was agency staff as well?‑‑‑Yes, from the same agency as I was.
And did you say to Shaista that Mary is two-faced?‑‑‑Did I say that to Shaista?
Yes?‑‑‑No, I can’t recall, sorry.
Now, either you’d been stood down, or you were going to work at Chrisco, or something, you weren’t coming back to Australia Post. What was Mary ringing you about after the meeting?‑‑‑That was during the time that I was being stood down, and she called me up just to tell me what had happened in the meeting, that was it. There was nothing more, nothing less, to what she had said to me, and that was it.
Okay. Now, then you said later you spoke to David, so that’s 6 August 2020, and found out that Mary had some stuff to you too, is that right?‑‑‑Sorry, could you just repeat that?
Yes. You said you later spoke to David, and we’ve worked out that’s about 6 August 2020, and you found out Mary had done stuff to you as well, this is Shaista’s evidence ?‑‑‑Yes.
Yes. And what stuff had Mary done to you?‑‑‑Well, obviously that incident on that day when I went home early, when Jackie asked me to leave to go home, that was when I openly spoke to David and said that there was a misunderstanding, you know, why they were all ganging up on me and saying that I had no intention of wanting to stay back to finish the work, and I found out that Mary was accusing me of doing the incorrect thing by everyone, and badmouthing about me to David, saying that I was lazy and not interested to stay back to help out the team.
Okay. And:
David dismissed me on the grounds he’d only heard one version of what happened from the girls, saying I wasn’t keen to work and didn’t follow instructions, and I was being dismissed.
?‑‑‑That’s correct.[43]
[43] Transcript (9 February 2023) P-453-455.
The Tribunal considered Ms Triantaflaros’ evidence:
Now, in the meeting how did the meeting commence?‑‑‑I mean I think it was David Mannella just saying that we all need to work together and - you know - just get our work done. Yes.
So did the applicant speak at that meeting?‑‑‑She said something about that I called her a terrorist. And I said, “I didn’t call you a terrorist. I did say we looked like terrorists.” And I apologised to her then and I said, “If you took that personally it wasn’t meant like that.” And I apologised and she accepted then in front of David Mannella and everyone, whoever was - I can’t remember who was there to be honest.
What else did she complain about in respect of her treatment by you or anyone else at that meeting?‑‑‑I think she was complaining about a lot of things to be honest.
Yes? Do you remember what they were?‑‑‑Not really. I was - yes, I was taken - well she said that and I’m like, “I didn’t say it to you. It wasn’t meant for you. I shouldn’t have said it. But it was just a general comment which, in hindsight, it shouldn’t have been said.” But I don’t - I really don’t know.[44]
[44] Transcript (1 May 2023) P-504.
And that of Mr Minnala’s:
How did the meeting start?‑‑‑I just brought up Shaista’s concern - like, she was - I was informed that she was crying the night before, and I thought I’ll have an open discussion. No - just an honest discussion; no formalities, no - just to clear the air. What had happened? Why was Shaista crying on a Monday evening - Monday? Yes, the 3rd, yes, Monday - why she was crying on - and that’s how it started.
Prior to that, even that morning, you didn’t have any particulars of what had happened the night before?‑‑‑Nothing at all. I went in there pretty much blind.
Do you remember who informed you what had happened?‑‑‑It - just a conversation. Actually, I think I started with Shaista as to what had actually happened, and then that’s how the discussion occurred.
Do you recall what she complained about or what she said had happened?‑‑‑The main thing that stuck in my head was her concerns were about terrorists, something to do with terrorists; I remember that conversation. A letterbox; something to do with a letterbox. Then there was a pallet jack conversation and a forklift, and I think that - from my memory, that’s what - yes. It was some - yes, something along those lines from that, yes.
Once Shaista raised these issues in the meeting, did Mary or anyone else respond?‑‑‑Well, Shaista did - well, it was Mary and Shaista talking about me not being notified, which - Mary said she didn’t know anything about these accusations or incidents that happened about a pallet jack and a forklift. Carmel, I think, responded in relation to the - I don’t know if it was the - the terrorist or letterbox about - she - she said it - she thought Shaista was in on it. Like, it was just a - a group discussion; a bit of - not - well, when I say “fun”, that Shaista wasn’t part of it and she didn’t take it as a personal, but she did apologise. She did apologise for that comment. She did apologise for that.[45]
[45] Ibid P-545.

Based on all the evidence before it the Tribunal concluded that Ms Yawari had been the victim of bullying and harassment at Australia Post as evidenced by the meeting on 4 August 2020 being called to clear the air. If nothing had happened, why was the meeting required, why was Ms Yawari in tears – it just seemed to the Tribunal this did not add up unless Ms Yawari had experienced stressors at work.
Date of Injury
In accordance with section 7(4) of the SRC Act the Tribunal found the date of Ms Yawari’s injury, being a disease, was the day on which she first sought medical treatment that being 9 August 2020.
CONCLUSION
The Tribunal observed that this application and response was the optima of what is wrong with the current Comcare system. The Tribunal was baffled why anyone would encourage Ms Yawari to pursue this claim given the limited benefit she could receive in economic terms and the long-term damage it would cause to her recovery from a significant mental health issue. The Tribunal was equally concerned by Australia Post’s approach of traumatising a vulnerable person by conducting what seemed like a witch hunt against a young, naive and impressionable person. There surely has to be a better way to deal with complex workplace issues instead of simply lawyering up.
The Tribunal, having considered all the evidence before it, determines that Ms Yawari’s employment at Australia Post has caused or contributed to her injury. That is, that it arose out of or in the course of her employment.
Further, the Tribunal is satisfied that as a result Ms Yawari did suffer incapacity and that her injury was caused by or contributed to, to a significant degree, by her employment. That is to say, as regards to the degree of contribution, the Tribunal was satisfied on the evidence that it was substantially more than material.
DECISION
Under section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution decides that Ms Yawari is entitled to compensation under section 14 of the SRC Act for her condition of adjustment disorder with mixed anxiety and depressed mood.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

.....................[SGD]....................................
Associate
Dated: 11 October 2023

Date of hearing: 28 - 29 November 2022; 7- 9 February, 1-2 May, and 10 August 2023

Counsel for the Applicant:

Ms Cassie Serpell

Solicitors for the Respondent:

Angela Sdrinis Legal

Counsel for the Respondent:

Ms Ann McMahon

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2023] AATA 3208

11 October 2023

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Judicial Review

Remedies

Procedural Fairness

Appeal

Date of hearing:	28 - 29 November 2022; 7- 9 February, 1-2 May, and 10 August 2023
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Respondent:	Angela Sdrinis Legal
Counsel for the Respondent:	Ms Ann McMahon
Solicitors for the Respondent:	Sparke Helmore Lawyers