YYHQ and Comcare (Compensation)

[2021] AATA 3809

YYHQ and Comcare (Compensation) [2021] AATA 3809 (19 October 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5420

Re:YYHQ

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:19 October 2021

Place:Sydney

The reviewable decision is affirmed.

.............................[SGD]..................................

Deputy President B W Rayment OAM QC

CATCHWORDS

WORKERS’ COMPENSATION – psychiatric condition – adjustment disorder - whether disease arose out of or in the course of employment – whether employment contributed to disease to a significant degree – whether disease suffered as a result of reasonable administrative action taken in a reasonable manner – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

19 October 2021

1. YYHQ was employed within the Department of Home Affairs and associated government entities (to which I will collectively refer to as Home Affairs) from February 2000. The main dispute between the parties is whether, as the applicant alleges, he was bullied and harassed by his Team Leader when he worked in Canberra from 2 September 2019 until March 2021 when he went on extended sick leave.

2. In November 2019, December 2019, January 2020 and February 2020 the applicant had taken other shorter periods of sick leave, ranging between one and five days.

3. In June 2020, the applicant was diagnosed as suffering from a psychiatric condition variously described as an adjustment disorder with anxious and depressed mood, a diagnosis by a consultant psychiatrist, and as severe depression/anxiety and extremely severe stress, a diagnosis by his general practitioner of March 2020. In March 2021, a consultant psychiatrist qualified by Comcare stated an opinion that on the face of it, the applicant reported symptoms consistent with an adjustment disorder in similar terms to the diagnosis of June 2020, and suggested that he ought to be further examined by means of objective and formal neuropsychological testing, which has not yet occurred.

4. The respondent accepts the applicant’s condition as a disease which was contributed to, to a significant degree, by his employment with the Commonwealth of Australia, but asserts that the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, within the meaning of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

5. Section 5A(2) of the Act provides as follows:

   5A      Definition of injury

   (2) For the purposes of subsection (1) and without limiting that
   subsection, reasonable administrative action is taken to include the following:

   (a)  a reasonable appraisal of the employee’s performance;

   (b)  a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c)  a reasonable suspension action in respect of the employee’s employment;

   (d)  a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e)  anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f)  anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

6. The action which the respondent says was ‘reasonable administrative action’ was action taken by the applicant’s Team Leader and others.

7. It is the Team Leader alone who is suggested by the applicant to have been involved in alleged bullying and harassment.

   EVIDENCE

8. YYHQ represented himself in the review.  The respondent was represented by Mr Kelly of counsel before the Tribunal, instructed by McInnes Wilson Lawyers. YYHQ was called and cross-examined by Mr Kelly.

9. The applicant’s evidence in chief included assertions that the Team Leader had:

   ·falsely asserted that he had not done work which he said he had done;

   ·falsely accused him of plagiarism;

   ·changed criteria maliciously to prevent his work from being accepted;

   ·fabricated events;

   ·made unfounded personal accusations; and

   ·imposed ridiculous expectations on him. 

   Those allegations if true, would support a charge of bullying and harassment and other, perhaps more serious, charges.

10. I was unable to be satisfied that those allegations were correct, and the making of them affected my assessment of his reliability. By contrast, I found the evidence of his Team Leader to be satisfactory, and as it will appear, I preferred her evidence. I do not say that the applicant’s evidence was deliberately false, since it may well be that his appreciation of the facts, both at the time when his employment was current, and when he gave evidence before the Tribunal, was significantly affected by the illness which he contracted.

11. The applicant was cross-examined as to credit, as well as on the merits of his case. As to credit, it was put to him that in his curriculum vitae, he misrepresented his University qualifications, which state that he had a degree of Master of Research from a Sydney university. In fact, the applicant did not have that degree. Although the applicant had attended coursework for it, he said his thesis was late because of a need to go overseas to visit a dying friend and upon his return he found that he would need to pay a late fee of approximately $10,000 which he could not afford. The curriculum vitae appears to represent that he did have the degree of Master of Research.

12. The applicant also agreed that after March 2020 he appeared on various YouTube episodes later in 2020.  He said he did so as a volunteer and to enjoy doing something. I do not treat that matter as going to credit.

13. During the course of a long cross-examination, YYHQ was cross-examined to suggest that his performance in the role for which he was employed was unsatisfactory. In particular he was taken to emails in which his work was criticised, and which he was asked to correct it.  In the emails, which he sent to his Team Leader in reply, he generally accepted the criticisms made of him and apologised for them. The tone of the Team Leader’s correspondence was less than polite in some cases, but I would not describe her correspondence as supporting a charge of bullying or harassment. Her motives may have been only to seek to have him lift his game.

14. The Team Leader had some 20 meetings with the applicant over the five months when he worked with her. Some only of those meetings were summarised in notes.

15. During some of those meetings the Team Leader expressed concern that the applicant may have been suffering from the separation from his family during the week. While the applicant was in Canberra his family were residing in Sydney.

16. The applicant’s oral evidence included suggestions that his errors were due to a lack of adequate training on the job. That suggestion would also not support the allegations made against his Team Leader of bullying or harassment.

17. The applicant had worked within Home Affairs for a long time, approximately 20 years. For the previous 10 years he had worked on Freedom of Information matters, which I understand was quite different from the work conducted in Canberra.

18. The applicant prepared several statements from other employees of Home Affairs and the applicant’s wife. Mr Kelly did not cross-examine any of the witnesses called by the applicant except for witness B. Witness B’s evidence differed in some respects from that of the ultimate E2 (to whom the Team Leader reported) but he gave no evidence of observing any bulling or harassment of the applicant, or about the question as to the reasonableness of any administrative action taken in respect of the applicant’s employment.  I have chosen not to seek to resolve the differences because I do not regard that dispute as relevant to the resolution of the issues in this matter.

19. None of the statements of others filed by the applicant bore directly on the critical findings necessary to be made on this review. Rather they bear observations made by the witnesses about the applicant’s condition and to self-reports which he made about the reasons for his declining health.

20. The applicant’s Team Leader made a 16-page detailed statement about the allegations of the applicant against her and about the case made by the respondent as to administrative action taken against the applicant during his employment in Canberra. The statement firmly denied the assertions of the applicant and explained the various administrative steps taken about his employment. She was cross-examined by the applicant, without, in my opinion, eliciting material which assisted his case.

21. Another employee of Home Affairs was called by the respondent. His statement corroborated some of the evidence of the applicant’s Team Leader insofar as it came under his observation. His cross-examination by the applicant again, in my opinion, elicited no material to assist the applicant’s case.

22. In considering the evidence before me, I prefer the evidence of the applicant’s Team Leader to that of the applicant and reject the allegations made by the applicant of bullying and harassment. I accept that the steps taken by Home Affairs with respect to the applicant’s employment were reasonable administrative action taken in a reasonable manner. Those steps unfortunately led the applicant to suffer the disease from which he was diagnosed as discussed in paragraph [2] above.

23. I find, the administrative action consisted of the following:

    ·providing feedback to the applicant about concerns which the Team leader had with his work;

    ·arranging training for the applicant;

    ·enlisting others to give assistance to the applicant;

    ·discussions with the applicant as what the Team Leader described as his underperformance in consultation with Human Resources; and

    ·directing the applicant’s return in October 2019 to the APS4 level instead of APS5 (which the applicant had described as too difficult for him).

24. The Team Leader had the applicant trained in risk management for the purpose of various duties he was to undertake. She set him timeframes which she described as reasonable for tasks that he was to perform and found his performance deficient. She provided positive feedback when he completed good work and discussed the quality of work with him where she regarded his performance as unsatisfactory. A clash occurred at a Performance Development Appraisal (‘PDA’) meeting of early March 2020 where the applicant raised his voice and acted disrespectfully. There was an underperformance meeting later in March which the applicant attended with a support person. The Team leader took notes which she provided to the applicant.

25. I do not identify any of the steps described by the Team Leader as taken unreasonably.  On the contrary, they appear to have been taken reasonably throughout.

    DECISION

26. The reviewable decision will therefore be affirmed.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

...............................[SGD].................................

Associate

Dated: 19 October 2021

Date(s) of hearing:	5 and 6 August 2021
Applicant:	In Person
Counsel for the Respondent:	Mr Brendan Kelly, Fourth Floor Wentworth
Solicitors for the Respondent:	Mr Abe Ghaleb, McInnes Wilson Lawyers