Yunupingu and Comcare (Compensation)
[2017] AATA 622
•3 May 2017
Yunupingu and Comcare (Compensation) [2017] AATA 622 (3 May 2017)
Division
GENERAL DIVISION
File Number
2014/5278
Re
Yuwan Yunupingu
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 3 May 2017 Place Adelaide The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of “major depression” with a date of injury of 8 February 2014.
........... [Sgd] ..............................................
Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Major depression – Whether contributed to by employment – Whether condition arose as a result of reasonable administrative action taken in a reasonable manner – Meaning of “as a result of” – Decision under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B
CASES
Lim v Comcare [2017] FCAFC 64
Comcare v Martin [2016] HCA 43
Hart v Comcare (2005) 87 ALD 341, [2005] FCAFC 16, (2005) 145 FCR 29
Hollis and Comcare [2017] AATA 49REASONS FOR DECISION
Deputy President K Bean
3 May 2017
The applicant, Mr Yunupingu, is a remarkable person who has led an eventful life. Having overcome a great deal of disadvantage and adversity in his early life, at the age of 36 he returned to school and subsequently managed to obtain two university degrees, including Honours degrees at the University of Sydney.
Having worked in various roles in the intervening period, in May 2013 he applied for and obtained a position as a Senior Health Safety and Environment (HSE) advisor for NBN Co in the Northern Territory. While he was in that role, he was instrumental in NBN Co obtaining Federal Safety Commission (FSC) accreditation, which it did in October 2013.
Unfortunately, however, around the time accreditation was received by NBN Co, Mr Yunupingu began to have increasing difficulties in the workplace, which, in combination with other factors, caused him significant stress.
By early February 2014, he was acutely unwell and was subsequently diagnosed with major depression, which has persisted.
His employment with NBN Co was ultimately terminated by agreement on 28 November 2014.[1]
[1] Exhibit 3, Statement of Yuwan Yunupingu dated 16 August 2015, at [23].
On 19 February 2014, Mr Yunupingu lodged a claim for workers’ compensation in respect of his “mental state”.[2]
[2] Exhibit 1, T4/23.
By a determination dated 16 May 2014, a Comcare delegate disallowed this claim on the basis that his injury was suffered as a result of reasonable administrative action, taken in a reasonable manner in respect of Mr Yunupingu’s employment, within the meaning of s 5A(2) of the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act).[3] The delegate concluded that Mr Yunupingu’s condition was contributed to by his employment, but that compensation liability was excluded by s 5A(2).
[3] Exhibit 1, T14/874.
Mr Yunupingu sought reconsideration of that determination and on 3 September 2014, a review officer of Comcare affirmed the determination.[4] The review officer also concluded that Mr Yunupingu’s condition was significantly contributed to by his employment, but found that the exclusionary provision s 5A(2) applied to defeat compensation liability.
[4] Exhibit 1, T22/1022.
On 13 October 2014, Mr Yunupingu applied to this Tribunal for review of that decision, giving rise to this matter.
The hearing of this matter took place over two days on 27 June and 28 June 2016 in Darwin. While the decision was reserved, the High Court’s decision in Comcare v Martin [2016] HCA 43 was handed down, on 9 November 2016. As I considered that decision had significant implications for this matter, on 11 November 2016 I wrote to the parties, directing their attention to the Martin decision, and inviting them to address certain issues, including whether the hearing should be re‑opened and/or further evidence should be received. I also convened a directions hearing by telephone on 21 November 2016 and in the event a further telephone directions hearing also took place on 6 December 2016.
Having heard from the parties, I ultimately decided not to reconvene the hearing or receive further evidence. However, I received written submissions from the parties addressing the substantive issues arising from the Martin decision,[5] which of course I have taken into account.
[5] Applicant’s submissions dated 28 November 2016, Respondent’s submissions dated 20 January 2017, Applicant’s submissions in reply dated 27 January 2017 and Respondent’s submissions in reply dated 10 February 2017.
STATUTORY FRAMEWORK AND ISSUES
The applicable provisions of the SRC Act have the effect that Comcare will be liable to pay compensation to an employee in respect of a disease if that disease was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee”.[6] Section 5B(2) also provides as follows:
[6] Safety, Rehabilitation and Compensation Act 1998 s 5B(1).
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.
Section 5B(3) also relevantly provides as follows:
In this Act:
significant degree means a degree that is substantially more than material.
However, as I have already alluded to, the Act provides that Comcare will not be liable for an otherwise compensable disease if the disease was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.[7] Section 5A(2) also relevantly provides as follows:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
[7] Safety, Rehabilitation and Compensation Act 1998 s 5A(1).
Although each of the Comcare delegates who considered Mr Yunupingu’s claim accepted that his major depression was contributed to, to a significant degree, by his employment, that was not the position taken before me. Accordingly, the issues for my determination are as follows:
(a)Was Mr Yunupingu’s psychiatric condition contributed to, to a significant degree, by his employment?
(b)If so, did the condition result from reasonable administrative action, taken in a reasonable manner, in respect of his employment?
WAS MR YUNUPINGU’S PSYCHIATRIC CONDITION CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY HIS EMPLOYMENT?
In contending at the hearing that Mr Yunupingu’s employment did not contribute to his condition to the requisite degree, the respondent relied heavily on the evidence of a psychiatrist, Dr Frank Varghese, together with aspects of Mr Yunupingu’s medical history.
Dr Varghese examined Mr Yunupingu on 12 May 2015 at the respondent’s request and provided a report dated 23 June 2015.[8] In that report he first expressed his views on the relevant issues by reference to examination of Mr Yunupingu only, and then gave his opinion by reference to having reviewed the relevant documentation.
[8] Exhibit 7, Report of Dr Frank Varghese dated 23 June 2015.
He concluded that Mr Yunupingu was suffering from major depression which commenced while Mr Yunupingu was employed at NBN Co. Dr Varghese noted from the available records that Mr Yunupingu had suffered a previous episode of “emotional decompensation” in August 2010, which he considered represented “a depressive disorder although of less severity manifesting with anxiety and somatic symptoms”. In respect of Mr Yunupingu’s current major depression he observed, “[t]hus the appropriate diagnosis is that of Recurrent Major Depression meaning that there has been more than one episode”.[9]
[9] Exhibit 7, p 11.
As to the cause of Mr Yunupingu’s major depression, he observed as follows:
The cause of the Major Depression is multifactorial as discussed in the formulation. Constitutional factors are of particular importance and this would be particularly the case if there is a recurrent pattern. Other factors that would increase propensity to Major Depression include developmental adversity and personality. Although episodes can occur for no apparent reason in line with the natural history, episodes can certainly be precipitated by adverse life events or circumstances and in this regard each episode needs to be considered separately.[10]
[10] Exhibit 7, p 11.
As to the cause of the specific episode of major depression which commenced while Mr Yunupingu was working for NBN Co, he stated:
if Mr Yunupingu’s account of his treatment in the workplace is accepted then the Major Depression was precipitated by the workplace issues occurring in the context of constitutional and other vulnerabilities to depression.
Alternatively a developing depression, for whatever reason, brought about a situation whereby the workplace was experienced as hostile and unsupportive and moreover there may have been issues of performance leading to certain management actions. As to whether the management actions were reasonable and appropriate in the circumstances is not a matter for a medical evaluator.
…
I am not inclined to any particular construct in this case other than to note that the fact that there has been a previous episode lends some support to the hypothesis that there may have been a recurrence of depression in line with the natural history.[11]
[11] Exhibit 7, pp 11-12.
Later in his report he stated as follows:
If the AAT as a matter of fact were to find that Mr Yunupingu’s account of issues in the workplace is broadly correct, then I would say that the effects of the work related condition have not ceased in that there was Major Depression present at the time I interviewed him.
Secondly, I would see the current Major Depression as being a continuation of what was present when he was at work with NBN.[12]
[12] Exhibit 7, p 14.
In contending that Mr Yunupingu’s condition was not contributed to, to the requisite degree, by his employment, the respondent essentially relied upon Dr Varghese’s alternative formulation with respect to causation. In other words, the respondent contended that Mr Yunupingu had suffered a previous episode of major depression and his period of employment with NBN Co was “merely the scene” in which a further episode of his constitutional major depression occurred.[13]
[13] Respondent’s Statement of Facts, Issues and Contentions dated 11 December 2015, at [4.3].
Ultimately, however, I have concluded that I do not consider there to be an adequate foundation in fact to support Dr Varghese’s alternative hypothesis that NBN Co was “merely the scene” in which Mr Yunupingu’s major depression manifested. There are two main reasons for that conclusion.
First, I am not positively satisfied that Mr Yunupingu suffered a previous episode of major depression. I understand that Dr Varghese’s evidence was that he considered Mr Yunupingu probably had suffered such an episode. However, I am not satisfied that that opinion is soundly based.
I note Dr Varghese’s opinion relied heavily on notes made by a general practitioner on 5 and 19 August 2010 respectively. The entry for 5 August 2010 relevantly referred to Mr Yunupingu “[p]resenting in with acute stressful situation frustrated with work … angry, lack of motivation, lack of interest, lack of energy, sleep erratic, appetite ok”. The doctor also recorded with respect to examination, “[p]sychiatry: good insight and judgement, Affect and dress appropriate, no suicidal ideation, No thought or speech disorder”. The diagnosis given was “[a]cute anxiety”, and the doctor apparently gave Mr Yunupingu a medical certificate for a week off work, together with recommending “EASA for counselling”.[14]
[14] Exhibit 4, Consultation Records, p 4.
The note for 19 August 2010 recorded more severe symptoms as follows:
I tried going to work on Monday (sic), felt bullied again, started to get anxious again, SOB, paliptations (sic) this time went home, not been back to work since then
thinking of taking legal action …
due to stress, migraines started to re flare, needing imigran.
The doctor recorded a diagnosis of “[o]ngoing stress reaction”, and recommended “[c]ont counselling with EASA”.[15]
[15] Exhibit 4, p 4.
In his oral evidence, Dr Varghese acknowledged that it was difficult to retrospectively diagnose a psychiatric condition having not seen the patient at the time, and based on this type of secondary evidence. It was also put to him that the evidence suggested this episode was relatively short‑lived, with minimal time off work resulting, and further, there were no subsequent records suggesting that the condition was ongoing or that there had been any diagnosis of or treatment for major depression at that time. In addition, Mr Yunupingu’s evidence was to the effect that there was no comparison between how he felt then and how he felt in early 2014 — in other words, he felt far worse in early 2014.
Notwithstanding all of these matters, Dr Varghese maintained his opinion that on balance, this probably represented a relatively mild episode of major depression. However, he also acknowledged that it may well have been a less serious condition, such as a transient adjustment disorder.
I acknowledge that this is a finely balanced question and that ordinarily the Tribunal would be guided by the medical evidence on an issue of this kind. Ultimately, however, and noting Dr Varghese’s concessions as to the difficulties presented by retrospective diagnosis based on scant information, I have concluded that I am not positively satisfied on the evidence before me that Mr Yunupingu suffered a previous episode of major depression in August 2010.
I note Dr Varghese’s evidence was that if Mr Yunupingu had not suffered a previous episode of major depression in 2010, it was less likely that his depression in 2014 was of spontaneous or of constitutional origin. In other words, it was more likely to have been precipitated by events in the workplace at NBN Co.
In addition, having carefully reviewed all of the evidence, I am persuaded that Mr Yunupingu’s account of what transpired in the workplace is broadly correct. That is not to say I regard every detail of his account as correct or that his perception of what took place, including the motivations of other employees etc., was in every case entirely accurate. I do accept, however, that his evidence was honestly given and I also consider his evidence to be broadly accurate and to represent a factual account of his experience of working at NBN Co.
In particular, I accept that Mr Yunupingu was placed in a difficult and invidious position. On the one hand he was acknowledged and rewarded for achieving safety related objectives as well as given responsibility for ensuring the integrity of NBN’s safety policies. However, on the other hand, he was subjected to pressure to depart from safety rules and policies and not supported in his role of upholding safety compliance. There are numerous examples of this in the documentation and it is unnecessary to refer to all of them.
One example of particular importance is an exchange which occurred between Mr Yunupingu and Mr Roy Bliss, then the Regional Project Director for the Northern Territory.
In order to set the scene for this exchange, it is necessary to explain some of the safety procedures NBN Co had adopted in order to attain accreditation. These are reflected in a document described as “Project Health, Safety & Environmental Management Plan for Construction of the NBN LNDN in NT” dated 19 September 2013.[16] The document was authorised by Mr Yunupingu as “NT HSE Advisor” and the developer of the document, and Mr Bliss on the basis that he had reviewed the document. That document established a process for contractor engagement and management by reference to a number of “gates” as follows:
[16] Exhibit 1, T10/134.
5 Contractor Engagement and Management
5.1Engagement
The NBN Co NBN-HSE-CM-PCD-0086 Contractor Engagement Procedure details the processes/checks to be implemented in engagement, these being from initial project risk assessment through to contractors commencing works.
The process is supported through the establishment of 5 (five) HSE Gates which provide a mechanism to track the Contractor’s progress and compliance as they work their way through the engagement process. NT HSE Management is responsible to track compliance by verifying successful completion as each Gate is passed. This process requires NT HSE management to verify systems, plans, plant risk assessment and other HSE documents within defined timeframes.
Gate 1. Establish project HSE Documentation / Clauses (low/high risk clauses, required management systems/certificates etc) – Confirm Contractors are committed to HSE and prepared to work under NBN Co Safety Management System.
Gate 2. Evaluate Contractors HSE documents at tender stage – HSE review of defined HSE criteria in order to evaluate suitability and ability to meet all NBN Co site requirements.
Gate 3. Successful Contractor develops/submits HSE system certificates, plans, key risk assessment documents and workforce competencies – this occurs after contract award within defined NT HSE time frame.
Gate 4. NT HSE review and approve contractors HSE risk assessments, training needs analysis compliance and supporting training competency records – NBN Co review supplied HSE documents to verify that HSE system certificates, plans, key risk assessments documents and workforce competencies meet contract and site HSE requirements.
Gate 5. NBN NT HSE Advisor to write up competencies of each worker and NBN Co induction records in NBN Co Training & Licence Verification Passbook and only then will the subcontractor complete NT project/site HSE inductions which will outline contract requirements/deliverables, reporting requirements and how to use the NBN Co HSE Field Documentation Folder.
Records of the contractor successfully completing relevant Gates shall be verified on Induction register and other documents.[17]
[17] Exhibit 1, T10/145-146.
The evidence is that this engagement process was known colloquially within NBN Co as “on‑boarding”.
Against this background, in early February 2014, Mr Bliss had decided that he wished to be in the position to engage a new contractor for asbestos removal work, namely McMahons. He explained in his oral evidence that this was due to operational factors, including cost and quality considerations with respect to NBN Co’s only other asbestos removal contractor, ICC. As I understand the position, that contractor remained available to carry out work, but Mr Bliss had determined that he did not wish to use them for further work. There is no dispute between the parties that that was his judgement to make. However, what is in dispute is whether the demands which he placed on Mr Yunupingu to “on‑board” McMahons quickly were reasonable in all the circumstances.
The relevant series of communications commenced with an email of 22 January 2014 from the Commercial Manager NT for NBN Co, Mr Oliver, to McMahons, asking whether they had done their HSE induction yet as NBN Co were keen to use their services.[18] McMahons responded on the same day indicating that Mr Yunupingu had contacted them “late last week and was going to get into contact this week, I haven’t spoken to him yet, so I will give him a call”. The following day, Mr Oliver contacted Mr Yunupingu asking whether McMahons had contacted him yet to do their induction/on-boarding.[19] Mr Yunupingu responded by saying “[y]es yesterday”.[20]
[18] Exhibit 1, T12/848.
[19] Exhibit 1, T12/847.
[20] Exhibit 1, T12/846.
On 29 January 2014, Mr Oliver contacted Mr Yunupingu again asking whether McMahons had been on‑boarded. Mr Yunupingu responded on the same day stating, “Jeff I informed you that I am meeting them on Friday to start their onboarding as they only contacted me last”.[21] Mr Oliver responded by saying “[s]orry mate. Was looking through my emails and couldn’t confirm what day”.[22] It is relevant to note here that Friday of that week was 31 January 2014.
[21] Exhibit 1, T12/846.
[22] Exhibit 1, T12/846.
On the following Thursday, 6 February 2014, Mr Yunupingu sent the following email to a number of addressees, including Mr Bliss and Mr Oliver, which relevantly said:
Currently, I expect McMahons to complete all Onboarding requirements including inductions and be ready to commence work by Monday the 17 Feb.
…
Additionally, ICC can recommence all types of ACM works as of 10 Feb pending Terry’s agreement. There will be no NBN Co/Telstra compliance issues to stop work recommencing on this date.
…
In Closing, I will be at training all day next Monday & Tuesday. [23]
[23] Exhibit 1, T12/858-859.
About 20 minutes later, Mr Bliss replied as follows:
Can you identify what is needed to accelerate the onboarding of McMahons please and where the responsibilities lie for those outstanding actions – can we have that by COP today please. My aim here is to get them onboard as soon as possible, certainly by COP Tuesday. If you (sic) undertaking training on Mon & Tues can we investigate getting one of your HSE colleagues to undertake that onboarding?
To be clear we will not be using ICC for the moment.
…
We need to disseminate throughout the NBN team how important it is to involve the monitors before any ACM removal. This will be co-ordinated through Terry.[24]
[24] Exhibit 1, T12/857-858.
Mr Yunupingu did not respond to this email from Mr Bliss, although after receiving it he sent an email to his direct manager, Mr Mike Grant, as follows “[y]ou need to call me about this as [I] cannot do my job if managers are not prepared to follow the documented process”.[25] In response, Mr Grant asked him to call him first thing on Monday in regard to this.[26]
[25] Exhibit 1, T12/856.
[26] Exhibit 1, T12/856.
At 9:00 am on the following Saturday morning, 8 February 2014, Mr Bliss sent the following email to Mr Yunupingu (and Mr Grant):
I was very clear in the email below that I wanted information on what was outstanding regarding McMahons on boarding by the end of Thursday. You have failed to provide me with the information I need. You are therefore hindering progress with asbestos removal.
Mike – I’ll talk to you under separate cover about what actions we might take to rectify the situation.[27]
[27] Exhibit 1, T12/854.
At 10:12 am Mr Yunupingu sent the following email to Mr Grant:
Your training for the Supervisors Terry has stopped me proceeding with booking as he went to Roy to stopped (sic) it being delivered ICC can do ACM removals on Monday but Roy does not want to use them for some reason.
I am suppose (sic) to do nbnco mandated training for myself on Mon/Tue
I am just waiting on some HSE docs from McMahons
I will then conduct inductions
If Roy wants my life he is very close to having it.[28]
[28] Exhibit 1, T12/856.
Ultimately, as counsel for Mr Yunupingu, Mr Piper, pointed out in his closing submissions, the issue with communications of this sort is not so much whether Mr Bliss’ position was entirely reasonable, but whether it caused stress to Mr Yunupingu.
In my view, given the broader context, it is entirely understandable that Mr Yunupingu found these communications from Mr Bliss, in particular the email of 8 February 2014, extremely stressful. They were also made more stressful in my view by earlier similar exchanges with Mr Bliss and others.
Mr Bliss acknowledged in his oral evidence that in communicating that he wished McMahons to be on‑boarded “as soon as possible, certainly by COP Tuesday”, that is about six days earlier than forecast by Mr Yunupingu, he had no real understanding of what remained to be done in the on‑boarding process. He indicated during his oral evidence that he had no recollection of the HSE plan document which governed NBN Co’s safety procedures, although I acknowledge that by the time he gave evidence he had not been working for NBN Co in the Northern Territory for just over a year. He also pointed out in his oral evidence that this was precisely the information he was seeking from Mr Yunupingu, in other words, what remained to be done to on‑board McMahons. However, if he was genuinely seeking that information in order to gauge when McMahons could realistically be on‑boarded, it is odd that in addition to seeking that information, at the same time he communicated a deadline of the following Tuesday. This was all the more problematic in circumstances where Mr Yunupingu had indicated that he would be attending training on the Monday and Tuesday of the following week and, although Mr Bliss apparently did not appreciate this, Mr Yunupingu did not have any other “HSE colleague” who could on‑board McMahons.
Given these elements of Mr Bliss’ communication and his expectation that Mr Yunupingu “find a way” to get McMahons on‑boarded by Tuesday, it is not surprising in my view that Mr Yunupingu found this email stressful and unsupportive of his role as HSE advisor. It is also not surprising in my view that this stress turned to distress when, on Saturday morning, Mr Bliss sent him a relatively terse email in the course of which he accused Mr Yunupingu of “hindering progress with asbestos removal” and expressly indicated that he would talk to Mr Grant (Mr Yunupingu’s manager) about how to “rectify the situation”.
In my view, it was not fair for Mr Bliss to accuse Mr Yunupingu in these circumstances of “hindering progress with asbestos removal”. As Mr Bliss was well aware, an alternative contractor was available to undertake the asbestos removal work. What was hindering the on‑boarding of McMahons in order to potentially undertake that work, was the safety management system adopted by NBN Co and the fact that the steps mandated by that system would take time to complete. In expressing his displeasure to Mr Yunupingu in the way in which he did, Mr Bliss was arguably blaming Mr Yunupingu for the requirements of the safety management system, which had been formally authorised by Mr Bliss himself as well as others. These communications give the impression that while NBN Co wanted the benefits of accreditation on the one hand, there was a degree of frustration at the constraints this imposed on the other hand, which to some extent Mr Yunupingu was bearing the brunt of. In my view, it was a very difficult position for Mr Yunupingu to be placed in, particularly given his deep personal commitment to the safety of NBN Co employees and contractors, and the pride he took in implementing an accredited safety system.
As I have concluded that Mr Yunupingu’s account of what occurred in the workplace is broadly correct, consistently with Dr Varghese’s opinion (and the conclusions of both Comcare delegates), I have also concluded that his major depression was significantly contributed to by his employment with NBN Co.
DID THE CONDITION RESULT FROM REASONABLE ADMINISTRATIVE ACTION, TAKEN IN A REASONABLE MANNER, IN RESPECT OF MR YUNUPINGU’S EMPLOYMENT?
The only “reasonable administrative action” relied upon by the respondent in this context is action by NBN Co surrounding a complaint made against Mr Yunupingu by another employee, Ms Musson, in September 2013. Accordingly, unless one or more of the events surrounding Ms Musson’s complaint are found to constitute “reasonable administrative action”, taken “in a reasonable manner”, and which was causative of Mr Yunupingu’s major depression to the requisite degree, his claim for compensation must succeed.
Ms Musson’s complaint and NBN Co’s Response
On Friday, 6 September 2013, Ms Musson sent an email to Mr Bliss entitled “Bullying and Harassment”.[29] The email referred to “unacceptable communications” and she complained in that email that Mr Yunupingu was denying her access to a cupboard containing information and resources she required in order to perform her duties. She also stated in the email:
An incident that occurred this morning in front of witnesses has heightened my need for action. I am unsure what avenues are available to me however it has been suggested that I am well within my rights to make a formal complaint which highly distresses me, however as by definition this is now and has been workplace bullying which should never be tolerated.
[29] Exhibit 2, Supplementary T-Documents, ST1/1.
As noted above, Mr Bliss was the Northern Territory (NT) Project Director based in the Darwin office of NBN Co. The material suggests that Mr Bliss spoke with Ms Musson and Mr Yunupingu on that same day, Friday, 6 September 2013.[30] He also alerted the Human Resources area of NBN Co to the grievance.
[30] Exhibit 2, ST10/28.
On Monday, 9 September 2013, an employee relations adviser, Ms Amanda Jung, contacted Mr Bliss and apparently obtained a brief on the situation. On the following Friday, 13 September 2013, she apparently contacted Ms Musson to “gain an understanding of the grievance and to provide her with an overview of the investigation process”.[31] Subsequent to that discussion, on Monday, 16 September 2013, Ms Musson emailed Ms Jung an Incident Report and on that same day, Ms Sylvia Kratz was asked to lead the investigation into the grievance. On Tuesday, 17 September 2013 Ms Kratz and Ms Jung apparently had phone conversations separately with Ms Musson, Mr Yunupingu and Mr Bliss to “introduce Sylvia Kratz and outline the next steps in the investigation process, which would kick off from Wednesday 18 September 2013, with Sylvia Kratz travelling to the Darwin office”.[32]
[31] Exhibit 2, ST10/28.
[32] Exhibit 2, ST10/28.
The allegations the subject of the investigation were summarised in the investigation report as follows:
1. Unacceptable communications towards the claimant by the respondent on 6 September 2013 and on other dates specified in the incident report emailed to Amanda Jung on 16 September 2013
2. Claimant’s inability to access the NT Project HSE document cupboard due to a missing key, which the claimant states the respondent was aware of, and therefore, preventing the claimant from performing her core duties. This occurred over the period of circa 20 August 2013 to the time of raising the grievance on 6 September 2013
3. Workplace bullying based on escalating abusive situation towards the claimant by the respondent, which resulted in an incident of unacceptable behaviour towards the claimant on Friday 6 September 2013. This incident involved the respondent shouting at the claimant at the back door of the NBN Co Darwin office at 7.52am and saying “did you have anything to do with moving the calibration kits……had no right to touch his stuff” whilst standing at the door with one arm on the door way and the other waving at her. The claimant was frightened and thought that he may hit her. This incident was witnessed by two other employees of which one departed the Company on 6 September 2013.[33]
Interviews were apparently conducted with a number of employees, including Ms Musson and Mr Yunupingu.
[33] Exhibit 2, ST10/28-29.
With respect to the incident on the morning of Friday, 6 September 2013, the investigation concluded that this incident was:
substantiated as the respondent has acknowledged that his behaviour towards the claimant was inappropriate and an apology is warranted. The respondent confirms that he raised his voice at the claimant and did not use bad language; that his behaviour was unacceptable.[34]
[34] Exhibit 2, ST10/29.
The other allegations made by Ms Musson were not substantiated.[35] The investigation also concluded that the substantiated incident did not “fall within the definition of workplace bullying as prescribed in the NBN Co Code of Conduct policy” nor did it “meet the definition of harassment”.[36] The report also stated:
It is the finding of this Investigation that the root cause of the escalating tension between the claimant and the respondent is due to a lack of understanding and clarity of what each other’s roles are in the NT HSE portfolio and the many members of management involved in hiring for different roles who set different expectations …[37]
[35] Exhibit 2, ST10/30.
[36] Exhibit 2, ST10/32.
[37] Exhibit 2, ST10/32.
The conclusion of the investigation included the following:
Although not related to the allegations of this investigation, the root cause/s were explored and it was found that a number of HR processes (from hiring to on-boarding) were less than ideal in this situation and may be considered to be contributing factors in the escalation of tension between the claimant and the respondent such as -
• No job description available when the claimant was hired
• No objectives were set for the claimant via the Individual Performance Scorecard process in the first 3 months to on-board, measure and ensure success
• Lack of clarity of roles and responsibilities as each management chain within Construction eg. Project vs HSE had different views of the claimant and respondent roles and responsibilities and this was not shared with the incumbents or more broadly with the management groups within the NT project.
It was also found that management intervention in terms of addressing issues on a day to day basis in a timely manner may have also contributed to the escalation of this situation between the claimant and the respondent, particularly when it was raised by the claimant to her manager or when it was observed by the claimant’s manager that the claimant was upset following conversations with the respondent as outlined in this report.[38]
[38] Exhibit 2, ST10/33.
Files notes were included of the interviews conducted in the course of the investigation, including the interview with Mr Yunupingu on Thursday, 19 September 2013, which was conducted by telephone.[39]
[39] Exhibit 2, ST3/10.
An email from Ms Kratz to Ms Kate Steenkamp on 10 October 2013 indicates that she:
Provided the findings of the allegations against Yuwan yesterday including concerns about clarity of roles and responsibilities (which neither party re (sic) wrong in terms of their view of their own role and responsibilities) on Wednesday 9 Oct13 at 4.03pm.[40]
[40] Exhibit 2, ST11/34.
She also summarised the concerns raised by Mr Yunupingu as follows:
•Feels this incident has cost him spiritually, culturally and personally (reputation)
•NBN Co is not the environment for him as he has found it poisonous pre and post this incident
•NBN Co is not safe for him based on previous points
•He has spoken with his direct manager (Mike Grant based in Melbourne) about his concerns prior to the incident and nothing was done to address his concerns
•Wants to achieve a number of personal goals and then he will leave NBN – he is looking elsewhere
•Expressed levels of stress he is under
•Feels the claimant is vindictive
•Disturbed and upset by the level of gossip that has occurred about this incident in the Victorian office (matter escalated to Amanda Jung re breach of confidentiality)
•NT HSE document has been approved and signed off by Roy Bliss and Mike Grant and this makes it very clear that YY is the NT HSE representative
•Issue that needs resolving –
o Calibration kits that were removed from the secure and locked portable office in the garage of the Darwin Office (field supervisor office) is still missing and has never been returned to YY
o YY has raised this with Roy Bliss but not addressed/returned to YY
o YY has no idea where they are
o YY believes that the claimant knows where they are
o Feels he has no other option but to report these stolen as they were ordered under this name and he doesn’t know where they are
o SK advised YY to hold off and to speak with Kate Steenkamp during their call on Friday 11 Oct 13 to determine best approach
o In the summary discussion notes EM states that she and Peter North moved them to a cabinet which EM requested the key (assuming to the cabinet) from Terry Davis. The location of this cabinet is not mentioned.
During his oral evidence, Mr Yunupingu stated that he “never received any correspondence in relation to accusations against me or any claims”.[41] He acknowledged being advised that there was an investigation and that he was interviewed. However, he stated:
Unfortunately, I didn’t know what was being actually accused of me. I received random questions over the phone with no context to what they referred to. And through the whole investigation I had never seen the claim of accusations against me in any form of written form.[42]
He acknowledged being informed by Ms Kratz as to the outcome of the investigation, which was “that the investigation didn’t meet the criteria for bullying, so there was no case to answer …”.[43] He also acknowledged receiving a subsequent telephone call from Ms Steenkamp:
informing me of what I needed in regards to a safe workplace, and we discussed those. The gas calibration station was one of those things. Kate Stienkamp (sic) agreed to actually get the keys back for the cabinet so I could get that equipment back. And, unfortunately, I never heard from Kate Stienkamp (sic) again.[44]
[41] Transcript, 27 June 2016, p 23 line 4.
[42] Transcript, 27 June 2016, p 23 lines 15-18.
[43] Transcript, 27 June 2016, p 23 lines 21-22.
[44] Transcript, 27 June 2016, p 23 lines 32-36.
Mr Yunupingu also indicated during his oral evidence that he was never advised that he had been found to have engaged in inappropriate conduct, based upon his own admission.[45]
[45] Transcript, 27 June 2016, p 61 line 3.
Mr Yunupingu stated later in his evidence:
As I said, the only way the investigation was covered was the open questions that were asked of me by Sylvia Kratz. I had no context to what those questions meant or what they were related to of an accusation, who was making that accusation. They were just broad questions over the phone and no context to what those questions or the accusations – yes, I knew the overall accusation was bullying but 80 per cent of the questions didn’t meet the criteria for bullying so I couldn’t comprehend as to why I was being asked those questions when they had no context to the bullying because I’d never seen any paperwork to be able to answer – such as the tribunal for example – I received copies of NBN’s responses so I’m able to respond to those. That’s never happened in that investigation at all.[46]
[46] Transcript, 27 June 2016, p 64 lines 21-31.
He also gave evidence to the effect that, from his point of view, the investigation was never concluded:
At the end of the day, Ms Kratz made these points here but she didn’t finish the investigation. It was actually referred to Kate Stienkamp (sic) to close out the investigation and the findings and that actually never happened. It was never addressed from that point on. I chased Kate Stienkamp (sic) down to find out what was going on. She said she was having a meeting with Roy Bliss the following week and would get back to me and I never heard from her again.[47]
[47] Transcript, 27 June 2016, p 65 lines 5-11.
For completeness, the material before me also includes the NBN Co “Managing Workplace Grievances Policy” which appears to have been current at the relevant time.[48] The policy includes the statement under the heading “Outcomes”:
If the grievance is substantiated and the grievance concerns the behaviour of an employee then action will be taken in accordance with the Managing Performance & Behaviour Policy.[49]
[48] Exhibit 1, T12/822-825.
[49] Exhibit 1, T12/824.
What was the administrative action taken?
Before proceeding to consider the issue of causation, it is important to determine with some precision what the administrative action taken by NBN Co actually was.
Having regard to the evidence discussed above, I have concluded that the administrative action taken relevantly included the following:
oInitiating and conducting a grievance investigation with respect to Ms Musson’s complaint;
oAdvising Mr Yunupingu about the complaint and the investigation;
oInterviewing Mr Yunupingu in relation to the complaint; and
oReporting the outcome of the investigation to Mr Yunupingu.
Accordingly, unless any of these actions (or any combination of them) contributed, to the requisite degree, to Mr Yunupingu’s psychiatric condition, his condition will be compensable.
Before turning to this issue of causation, I will first discuss the medical evidence as to the causes of and contributors to Mr Yunupingu’s condition.
The medical records and evidence
The material before me includes a significant amount of contemporaneous medical information, which I consider to be of particular importance in assessing what the main causes of Mr Yunupingu’s condition were.
In seeking medical assistance, Mr Yunupingu approached Dr Saeed at the Top End Medical Centre, on 9 February 2014. A contemporaneous note of that consultation records that Mr Yunupingu:
stated that since last may he has been employed by NBN as a safety manager, during January he was forced to breach a safety contract and subsequently compiled a 7 page complaint, since then he feels he has been victimised and on Saturday received a threatening email from the Director.[50]
[50] Exhibit 1, T8/46.
Dr Saeed also completed a medical certificate on 10 February 2014 in which he recorded the following against “Injury Details”:
working as safety manager for NBN
states being bullied at work
states have been receiving increasing threats and intimidation for the last 2 weeks by Director of NT NBN that he will face disciplinary action.[51]
[51] Exhibit 1, T12/820.
Also before me is a record of Mr Yunupingu’s attendance at the emergency department of the Royal Darwin Hospital on the evening of 8 February 2014. The nursing notes indicate the following:
Pt went to GP concerned that work stressors will start him drinking again. Pt states received a threatening email from boss threaten to sack patient. … *Feels work not accepting his aboriginal heritage.[52]
[52] Exhibit 5.
In a subsequent report of 27 March 2014, Dr Saeed stated:
He presented to me for the first time on 09/02/2014 at 1734 pm with feeling suicidal and thinking about it for the 2 weeks … He stated that he was working as safety manager for NBN recently and reported being bullied at work. He stated he had been threatened for the last 2 weeks by his Director of NT NBN that he will face disciplinary action and received a threatening email from his Director on Saturday. He stated that he had informed his HR/GM/employer that workplace was not safe and making them accountable for safety as he lodged a complaint against them but they were not taking any action.[53]
[53] Exhibit 1, T8/45.
Also of relevance to this issue are the notes and reports of a psychologist Mr Yunupingu consulted during March and April 2014, Mr Gregory Goodluck.
In a comprehensive report apparently prepared in October 2014, Mr Goodluck set out his contemporaneous notes of some of his consultations with Mr Yunupingu. Excerpts of his notes taken at the first consultation on 8 March 2014 include the following:
Bullied by workplace
…
National security breach was discussed with senior management
Open investigation on Yuwan – Breached a corporate directive around asbestos removal [allegedly].
Wrote a safety management system to comply
…
Corrective Actions were needed to be implement too quickly.
Had a meeting with manager from down south
Construction and HSE manager and director. To discuss how to up standard OHS … (The director was attacking his personality …) and was told that he [Mr Yunupingu] was to blame for safety non-compliances although he [Yuwan] was asking them to lift standards.
- Passed performance management, but wasn’t present.
…
- Describes lots of double binds and no win situations..
- slandered? Libeled? (sic) Defamed?
- very litigious?
…
NBN muddied his name with regard to a bullying complaint that was not even a bullying thing and was investigated and cleared… non-aboriginal woman complained he was bullying her when he told her she had no jurisdiction in his role… demarcation… sensitive issue needs further exploration… .[54]
[54] Exhibit 1, T9/49-50.
Mr Goodluck’s electronic notes from a subsequent consultation on 14 March 2014 include the following:
Straw that broke the camel’s back was that the gas calibration station was moved…
By…the woman who accused him of abusing her just told her to not move his things…
They then dug for past issues to accuse him of bullying her… It didn’t stick..
…
Disrespected as an aboriginal about the shame issues around the accusations, no hard copy of accusations… Subjected to random questioning… Verbal investigation…
Regarding bullied..
“Professional integrity…how can I answer to accusations when I don’t know what they are …”
Feeling persecuted… By NBNco...[55]
[55] Exhibit 1, T9/51.
Mr Goodluck’s electronic notes from 3 April 2014 include the following statement, “[c]ore issue of shaming him by investigation of complaint that did not even meet the criteria required to be investigated, and later told so …”.[56]
[56] Exhibit 1, T9/53.
In his report, Mr Goodluck also recorded the following:
“…Says he was bullied…also prevented from going away to go to his sister’s funeral… being asked to sign off on unsafe decisions… etc.”
Over three sessions and in writing Mr Yunupingu related his workplace difficulties which in general amount to having to work under several shifting and competing sets of standards and guidelines in the Health and Safety role he had with NBNCo. He related that over time he became increasingly stressed and anxious about his liability, his company’s liability and the safety of the workers on site. He recounted situations where he felt undermined and devalued by management then blamed for things that were not his fault or his decision. Mr Yunupingu also spoke of having been the subject of complaints, and that the complaints were not handled in a fair and appropriate manner, in that he was not informed of the nature of the complaints and/or given due process to answer to them.
…
Another example of an issue he found insensitive was the lack of regard for the undue shaming that occurred when he was investigated unnecessarily for bullying, when the complaint did not meet the criteria for an investigateable (sic) offence and should have not subjected him to investigation. Yuwan felt that he was being bullied and undermined repeatedly for doing his job with honesty and due diligence.[57]
[57] Exhibit 1, T9/47-48.
Mr Goodluck expressed the opinion that Mr Yunupingu was suffering from an adjustment disorder with mixed anxiety and depressed mood.[58] Under the heading “Summary and Discussion” he expressed the following opinion:
Mr Yunupingu found himself in an untenable and impossible situation having very little informal or structural power, no subordinates, and management not following due process regarding Grievances and OHS issues, creating great risk in a variety of situations at multiple levels.
Mr Yunupingu has endured high levels of workplace stress eventually leading to severe anxiety and depression at a time he felt undermined in a meeting where he had thought he was going to be supported in his attempts to address ongoing risk issues.[59]
[58] Exhibit 1, T9/49.
[59] Exhibit 1, T9/54.
As to when Mr Yunupingu was first impaired, Mr Goodluck stated:
I consider that Mr Yunupingu was first impaired by as a result of his condition on the 9/2/2014 after a meeting with management that brought his cumulative workplace stress to a head, by apparently disciplining him instead of addressing his valid OHS and procedural concerns.[60]
[60] Exhibit 1, T9/55.
As to the main factors which had contributed to Mr Yunupingu’s condition, Mr Goodluck nominated the following:
1)Excessive intense workplace stress;
2)Managerial pressure to comply with unsafe practices;
3)Managerial pressure to comply with and ratify irregular, illegal or improper processes and procedures;
4)Systematic bullying (alleged by Mr Yunupingu);
5)Cultural insensitivity in that he was shamed for unsubstantiated claims later dismissed;
6)Incorrect handling of bullying complaint made against him;
7)Damage to professional reputation.[61]
[61] Exhibit 1, T9/56.
As to when these factors first contributed to Mr Yunupingu’s condition, Mr Goodluck stated, “[i]n all likelihood the factors were contributing to a cumulative stress effect over several weeks prior to the date upon which the condition became fully manifest (14/2/14)”.[62]
[62] Exhibit 1, T9/56.
In the context of commenting on whether the factors still contributed to Mr Yunupingu’s current condition, Mr Goodluck stated:
Mr Yunupingu still feels bullied by the fact that investigations into complaints against him have been instigated, with very little information if any being shared with him as to the nature and substance of the complaints. This is another experience of being disempowered and bullied.
The matter of having his reputation in the OHS industry damaged is an ongoing stressor for Mr Yunupingu.[63]
[63] Exhibit 1, T9/56.
Unfortunately, Dr Varghese has not expressed a clear opinion as to the extent to which the bullying complaint and related events contributed to Mr Yunupingu’s condition. He did indicate in the course of his oral evidence that prior to manifesting clearly in February 2014, the depression “had probably been developing insidiously for some months, so hence it would fit into his account September/October 2013 and maybe even before that, and if you take into account when he was last well he says May 2013”.[64]
[64] Transcript, 28 June 2016, p 140 lines 21-24.
“As a result of” – the applicable test for causation
As it is clear that Mr Yunupingu referred to the bullying complaint and associated events at around the time he became unwell, and this appears to have been one of the factors which contributed to the development of his condition, the applicable threshold for establishing causation becomes important.
As I have alluded to above, the proper application of ss 5A and 5B of the SRC Act was recently resolved by the decision of the High Court in Comcare v Martin.[65]
[65] Comcare v Martin (2016) HCA 43.
The Court explained the proper construction as follows:
Within a statutory context which includes ss 5A and 5B, the exclusionary phrase “as a result of” in s 5A(1) is naturally read, not as imposing its own separate and free-standing test of causation, but rather as referring relevantly to the test of causation spelt out in s 5B(1).
The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers that description of reasonable administrative action.
When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.[66]
[66] Comcare v Martin, at [43]-[45].
The Court continued later in its reasons:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.[67]
[67] Comcare v Martin, at [47]-[48].
Applying that test here, Mr Yunupingu’s condition will not be compensable if, putting aside any contribution from a reasonable administrative action, reasonably taken, he would not have suffered a compensable injury. In other words, the exclusion will potentially be invoked if, in the absence of the administrative actions relied upon, he would not have suffered his depressive condition or the other work-related contributors to the condition would not have amounted, individually or collectively, to a significant contribution within the meaning of s 5B.
I should acknowledge that in the respondent’s submissions in reply filed on 10 February 2017, the respondent urged me to adopt the reasoning of the tribunal in Hollis and Comcare[68] as to the effect of the Martin decision. However, with due respect to the tribunal in that matter, as I am not persuaded that the tribunal’s Reasons reflect a correct understanding of the High Court’s decision in Martin, I have decided not to follow that aspect of the tribunal’s reasoning.
[68] Hollis and Comcare [2017] AATA 49.
For completeness, I have also had regard to the decision of the Full Federal Court in Lim v Comcare [2017] FCAFC 64, in which the Court has explained the effect of Martin, and its relationship to earlier decisions such as Hart v Comcare [2005] FCAFC 16; 145 FCR 29. I note that in Lim, the Full Court confirmed that, in order to invoke the exclusion in s 5A, it was necessary to establish that the employee would not have suffered a compensable ailment if the relevant administrative action had not been taken.[69]
As a matter of causation, do the relevant actions satisfy the test in Martin?
[69] Lim v Comcare [2017] FCAFC 64, at [41].
In further submissions filed in response to my letter of 11 November 2016, the respondent contended that “the bullying complaint would come within the meaning of that test as being sufficiently causative in the sense that it can be said that in the absence of that complaint, the applicant would not have suffered the psychiatric condition which is the subject of this applicant”.[70]
[70] Respondent’s submissions lodged 20 January 2017, at [10].
In support of this contention, the respondent relied heavily on the report of Mr Goodluck dated 5 April 2014. The respondent noted the references in Mr Goodluck’s report to Mr Yunupingu having been the subject of complaints, which Mr Yunupingu did not consider were handled in a fair and appropriate manner, and to Mr Yunupingu’s perception of “undue shaming” and that he was “investigated unnecessarily”. The respondent also referred to Mr Goodluck’s list of the main factors contributing to Mr Yunupingu’s condition, including “incorrect handling of bullying complaint against him” at number six in a list of seven separate factors.[71] The respondent also noted the comment in Mr Goodluck’s report, “Mr Yunupingu still feels bullied by the fact that investigations into complaints against him have been instigated, with very little information if any being shared with him as to the nature and substance of the complaints”. The respondent also relied on Mr Goodluck’s contemporaneous clinical notes made on 14 March 2014, as follows:
Straw that broke the camel’s back was that the gas calibration station was moved … By … the woman who accused him of abusing her … just told her to not move his things … They then dug for past issues to accuse him of bullying her … It didn’t stick”.[72]
[71] See para 82 above.
[72] Exhibit 1, T9/51.
On my assessment of the evidence, however, even if the bullying complaint and the actions surrounding it had not occurred, in all likelihood Mr Yunupingu would still have developed his depressive condition. I have reached that conclusion having regard in particular to the following matters:
(a)Mr Yunupingu’s depressive condition did not manifest until early February 2014, well after the events surrounding the bullying complaint;
(b)Dr Varghese made no mention in his oral evidence of the bullying complaint. He made mention of it only in passing in his written report and did not indicate that it was causally significant;[73]
(c)In his oral evidence, Dr Varghese clearly explained that the invidious position Mr Yunupingu was placed in, where he had responsibility for ensuring safety on the one hand, and was subjected to pressure to depart from safety rules and policies on the other, could well have caused Mr Yunupingu’s depression. He described this as a situation of “cognitive dissonance”;
(d)The bullying complaint was not referred to in the contemporaneous notes made by Dr Saeed in early February 2014, or the notes made at the Royal Darwin Hospital, nor was it referred to in Dr Saeed’s report of 27 March 2014;
(e)One of the factors which emerges clearly from the contemporaneous medical notes is Mr Yunupingu’s perception that his employment was under threat and/or that he was likely to face disciplinary action. There are repeated references to the threatening email from Mr Bliss and Mr Bliss “threatening to sack” Mr Yunupingu; and
(f)The bullying complaint features in only two of the seven factors listed by Mr Goodluck, who also stated in his report, “[i]n all likelihood the factors were contributing to a cumulative stress effect over several weeks prior to the date upon which the condition became fully manifest (14/2/14)”.[74]
[73] Exhibit 7, p 8.
[74] Exhibit 1, T9/56.
Having regard to these matters, and Mr Yunupingu’s evidence (which I accept), I have concluded that whilst the bullying complaint and the resulting actions taken by his employer remained a concern for Mr Yunupingu, at the time he became unwell those were having much less impact upon him than the other workplace stressors, including being placed in what he regarded as an impossible position by his employer, and being threatened by Mr Bliss for attempting to ensure that safety requirements were adhered to. In consequence, I have also concluded that given the severity of the other workplace stressors and their much greater impact on Mr Yunupingu at the time he fell ill, in all likelihood Mr Yunupingu’s depressive condition would have developed in response to those other workplace stressors, even in the absence of the bullying complaint and the associated administrative actions.
I have also had regard to the fact that, in my view, the bullying complaint itself cannot be regarded as an “administrative action” taken by Mr Yunupingu’s employer. Therefore any ongoing impact of the complaint itself weighs in favour of the condition being compensable.
It follows in my view that the s 5A exclusion is not invoked and Mr Yunupingu’s depressive condition is compensable, even if his employer’s actions in response to the bullying complaint were reasonable administrative actions taken in a reasonable manner (which it is not necessary for me to determine).
CONCLUSION
For the reasons I have given, I have concluded that Mr Yunupingu’s depressive condition was contributed to, to a significant degree, by his employment with NBN Co.
The respondent has argued that the condition is nevertheless not compensable, as it resulted from “reasonable administrative action” taken by NBN Co in relation to a complaint made against Mr Yunupingu by Ms Musson, undertaken in a reasonable manner. In the event however, I have concluded that the contribution made to Mr Yunupingu’s condition by NBN Co’s administrative actions surrounding the bullying complaint does not meet the causal threshold established by the High Court’s decision in Martin. That follows from my conclusion that even without those actions, Mr Yunupingu would still have developed his depressive condition, and it would still have been significantly contributed to by his employment.
In light of that conclusion, it is unnecessary for me to address the question of whether the relevant administrative actions amounted to “reasonable administrative action” undertaken in a reasonable manner.
I have accordingly decided to set aside the decision under review and substitute a decision accepting liability for Mr Yunupingu’s condition pursuant to s 14 of the SRC Act. I will stipulate a date of injury of 8 February 2014, given that was the date on which Mr Yunupingu first sought medical treatment.[75]
[75] Safety, Rehabilitation and Compensation Act 1998 s 7(4); Exhibit 5.
DECISION
The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the SRC Act in respect of the condition of “major depression” with a date of injury of 8 February 2014.
102. I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
.......... [Sgd] ...........................................
Associate
Dated: 3 May 2017
Date of hearing: 27-28 June 2016 Date final submissions received: 10 February 2017 Counsel for the Applicant: Mr B Piper Solicitors for the Applicant: Pipers Barristers and Solicitors Counsel for the Respondent: Mr CJ Clark Solicitors for the Respondent: Sparke Helmore
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