Zoumaras and Comcare (Compensation) - [2021] AATA 2668

Zoumaras and Comcare (Compensation) [2021] AATA 2668 (30 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0740
Re:Steven Zoumaras
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:30 July 2021
Place:Adelaide

The decision under review is affirmed.
.......................[SGND]............................
Senior Member B J Illingworth
Catchwords
COMPENSATION – applicant suffers adjustment disorder - whether applicant satisfies s 5A(1)(a) or (b) of the Safety, Rehabilitation and Compensation Act 1988 – whether the applicant’s condition is excluded from being an “injury” due to operation of reasonable administrative action exclusionary provision – reasonable administrative action taken – action undertaken in a reasonable manner – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bailey and Comcare (Compensation) [2020] AATA 1244.
Comcare v Wiggins [2019] FCA 1465.
Comcare v Martin [2016] HCA 43.
Hart v Comcare (2005) 143 FCR 29.
Lim v Comcare [2019] FCAFC 104.
Martinez and Comcare [2012] AATA 795.
O’Callaghan and Comcare [2019] AATA 4378.
Sami and Telstra Corporation Limited [2012] AATA 41.
Ting and Comcare [2014] AATA 85.
Wiegand v Comcare [2002] FCA 1464.
REASONS FOR DECISION
Senior Member B J Illingworth
30 July 2021

Introduction

Mr Zoumaras (the applicant) is employed by the Australian Taxation Office (ATO) as an APS 6 Client Engagement Officer in the Tax Evasion Program Integrated Compliance division. He is currently 62 years of age.
On 22 September 2019, the applicant made an application for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a psychological condition, namely “adjustment disorder with features of anxiety and depression”[1]. That application was supported by a Work Capacity Certificate from Dr Gleeson dated 25 September 2019 which reported that the stated condition developed on 9 September 2019 caused by work-related stress issues[2].
[1] Exhibit A, T27, pages 90 – 94, at page 91.
[2] Exhibit A, T28, pages 95-96.
On 29 November 2019, an ATO delegate of Comcare denied liability for that condition. The delegate was satisfied that the applicant sustained the psychological condition, which was significantly contributed to by his employment with the ATO, but found that in accordance with s 5A of the SRC Act the condition arose from reasonable administrative action performed in a reasonable manner which excluded the applicant from an entitlement to compensation[3].
[3] Ibid, T44, pages 157-164.
On 23 December 2019, the applicant applied for a review of that decision[4].
[4] Ibid, T47, pages 168-169.
On 16 January 2020, an ATO review officer affirmed the decision[5].
[5] Ibid, T50, pages 175-183.
On 11 February 2020, the applicant filed an application for review of the decision of the ATO review officer[6]. Under the heading ‘Reasons for Application’ the applicant said, amongst other things, that his psychological injury arose out of his employment, and was contributed, to a significant degree by his employment (which is accepted by the respondent); but that such injury did not arise from reasonable administrative action taken in a reasonable manner. The applicant attached a report of Dr Blakemore psychiatrist dated 28 January 2020[7] in support of his application for review.
[6] Ibid, T1, pages 1-25.
[7] Ibid, T51, pages 185-194.
At the hearing the applicant was self-represented, and the respondent was represented by counsel Ms Slack of Higgins Chambers.
Issues
The respondent in written closing submissions correctly summarised the issues as follows:
(a)Whether the applicant suffers an ‘ailment’, defined in s 4 of the SRC Act;
(b)If the applicant does suffer an ‘ailment’, whether it was significantly contributed to by the applicant’s employment with the ATO such that the definition of ‘disease’ in s 5B of the SRC Act is met;
(c)If either causative test is met and, therefore, the applicant satisfies s 5A(1)(a) or (b) of the SRC Act, whether the applicant’s condition is excluded from being an ‘injury’ due to the operation of the reasonable administrative action exclusionary provision, considering the following:
(i)Whether the condition was suffered ‘as a result of’ administrative action;
(ii)Whether the relevant action was administrative, and if so;
(iii)Whether it was reasonable to undertake that administrative action, and if so;
(iv)Whether the action was undertaken in a reasonable manner.
The respondent conceded that the applicant suffered from a psychological ailment which was contributed, to a significant degree, by the applicant’s employment with the ATO. Accordingly, it is conceded that the applicant satisfies the definition of disease pursuant to s 5B of the SRC Act.
However, the respondent relied on the exclusionary provision contained in s 5A of the SRC Act to exclude the disease as constituting a compensable injury, on the basis that the injury arose from reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
Background
The applicant provided a statement dated 9 September 2019[8]. He also provided a Statement of Facts, Issues and Contentions (SOFICs)[9] which was in the nature of a further, more detailed statement, and which was, by consent, received into evidence. Together, they provide a helpful summary of the background of this matter relied on by the applicant which I will briefly summarise.
[8] Ibid, T1, pages 7-25.
[9] Exhibit B.
The applicant commenced employment with the ATO in 1984. He resigned in 2014 on medical grounds relating to his eyesight. The ATO introduced a scheme to recruit people with a disability, and as a result the applicant was re-employed by the ATO in March 2016. From that date the applicant’s supervisor was Ms Entwistle.
The applicant first underwent a Vision Assessment in 2016 and a number of recommendations were then made including as to appropriate equipment, proximity to natural light, taking regular breaks from screen time and that he be allowed to lubricate his eyes by rewetting his contact lenses[10].
[10] Exhibit A, T3, pages 27-31 at page 31.
In or about June 2016, the applicant requested permission to take purchased leave. He was permitted to request that leave because he was employed through the recruitment scheme for disabled workers, and therefore he did not have to complete the usual six-month probation period before such leave could be granted. He applied to his supervisor Ms Entwistle for eight weeks of purchased leave. She raised the application with the Director, Mr Pennuto, and after addressing some initial concern as to the reason for the purchased leave, it was granted.
In September 2016 the applicant applied, unsuccessfully, for a promotion to an Executive Level 1 (EL1) which was the first of four failed applications for promotion. The second was in November 2016 when he unsuccessfully applied for the position of an EL1 Tax Leader.
On 5 March 2017, the applicant suffered a pulmonary embolism and was admitted to the emergency department of the Queen Elizabeth Hospital. On 14 March 2017, he returned to work. He advised Ms Entwistle and Mr Pennuto, amongst other things, that his specialist advised he take regular breaks from sitting, and that he was going to use the stairs to increase his blood flow. He said to them that he suffered a “near death experience”.
Ms Entwistle and Mr Pennuto raised concern about the applicant’s work capacity following his medical episode, and that the applicant proposed to use the stairs. The applicant said he felt discriminated against and bullied due to his health issues.
In April 2017, the applicant underwent an Early Intervention Assessment which did not indicate any limitation in his work capacity[11]. In the course of that assessment the applicant raised his concerns about Ms Entwistle and Mr Pennuto’s conduct towards him. The applicant referred to ongoing issues he had with Ms Entwistle. He spoke with Ms Pagano and subsequently put his concerns in writing in an email dated 19 April 2017[12].
[11] Ibid, T6, pages 37-45.
[12] Ibid, T8, pages 48-49.
On 26 April 2017 at 12.57pm, Ms Entwistle sent an email to Ms George who had assisted in organising the Early Intervention Assessment of the applicant and summarised a discussion she had with the applicant on 14 April 2017[13]. That summary referred to, amongst other things, the applicant’s complaint to Ms Sandco from ATOP Early Resolution about discrimination because of his disability; the recording of extra breaks taken by the applicant to wash his contact lenses; Ms Entwistle’s concern that the applicant was spending long periods from his desk and she did not know his whereabouts; and a proposed meeting with Ms Sandco to draft a set of expectations for time recording.
[13]Ibid, T9, pages 51-53.
Further, on 26 April 2017 at 3:06 pm, the applicant sent an email to Ms Pagano[14] saying that he had lost confidence in Ms Entwistle, complained of lack of support for his condition and expressed his objective was to leave her team.
[14] Ibid, T10, page 54.
The applicant detailed a number of other issues he had with Ms Entwistle in 2017 which I will not repeat. I note they included a dispute about whether the applicant had applied for flex leave or annual leave in October 2017 and Ms Entwistle’s demeanour towards the applicant.
In March 2018, the applicant received an incremental increase in his APS 6 salary having been assessed by Ms Entwistle and Mr Pennuto as satisfying the competencies at his level of employment.
In August 2018, the applicant was allocated a complex audit.
In November 2018, the applicant applied for the position of EL1 Client Engagement Officer and was successful insofar as he was placed on a merit pool. He advised Ms Entwistle and Mr Pennuto of that successful application.
On 5 February 2019, Ms Entwistle met and spoke with the applicant in relation to the complex audit he was undertaking and at 1:51pm that same day, sent an email to the applicant summarising that meeting including the role and focus of the audit and that the applicant place all active entities on a watchlist to monitor any tax refunds that may be paid out. Further under the heading “ACTION ITEMS FOR STEVE”, Ms Entwistle requested he undertake three items of research and provide a response to the email recipient (the taxpayer under investigation) which was to inform a further meeting in relation to the investigation. The applicant was also asked to perform four specific functions including the (i) issue of a notice to the recipient to attend a formal interview and (ii) issue a separate notice for information and documents not yet provided[15].
[15] Ibid, T12, pages 63-64.
On 19 February 2019, Ms Entwistle sent an email to Mr Pennuto providing a copy of the 5 February 2019 email to the applicant and inviting Mr Pennuto to go through that email with the applicant and ensure he was undertaking those functions. She said the applicant did not put all entities on a watchlist – he missed the lodgement; and she asked Mr Pennuto to intervene as the applicant “does not seem to follow my instructions or understand the importance of this case.” She also expressed concern about whether the applicant had commenced preparation for the meeting with the recipient as requested which was to occur in four weeks’ time[16].
[16] Ibid, T12, page 62.
On 22 February 2019, an enquiry was made with Mr Pennuto and others whether the applicant could be released for an EL1 position following the applicant’s placement on the EL1 merit pool.
On 25 February 2019, Ms Entwistle sent an email to Mr Pennuto detailing the reason why the applicant could not be released from his current role, including (i) that he was performing high priority audits; (ii) the case was his only current workload due to its significance and the large volume of information; (iii) he had an established internal relationships with others to progress the case; (iv) he had established an external relationship with a lawyer representing the client and attended various meetings with him over the past months; (v) he was to conduct a formal interview in March; (vi) the applicant was named on formal notices and his absence would require those notices to be withdrawn and reissued; (vii) due to his knowledge and work it will be inefficient to reallocate the matter to another team member and further jeopardise the formal interview[17]. Subsequently, Mr Pennuto advised Ms Bussenschutt by email on 25 February that the applicant could not be released due to current business needs managing the high-risk audit and that reallocating the matter to another officer would jeopardise the ongoing audit strategies[18].
[17] Exhibit H.
[18] Ibid.
On 12 March 2019, an enquiry was made for the possible release of the applicant in April and, on 14 March 2019, Mr Pennuto advised he could not be released which reasons included that a formal interview was scheduled the following week with significant follow-up work required to complete the audits that will take several more months to complete. He repeated that reallocating these audits would jeopardise ongoing audit strategies[19].
[19] Ibid.
On 13 March 2019, at a meeting between the applicant, Mr Pennuto and Ms Entwistle, errors in the formal notices sent in relation to the subject investigation were identified by the applicant and discussed. The applicant referred to them as two minor errors which he brought to the attention of Mr Pennuto and Ms Entwistle and that he had remedied them.
In March 2019, the applicant received an incremental increase in his APS 6 salary having been assessed as competent at that level.
In the periods 2015 to 2016 and 2017 to 2018, the annual performance review process (Compass) rated the applicant as “on track”. He did not receive a performance rating by Ms Entwistle for the period 1 July 2018 to December 2018.
From 2 April 2019 to 6 September 2019, the applicant was on carers leave. On 2 May 2019, the applicant telephoned Ms Entwistle and advised he could return to work for up to two weeks to sort out his cases but he was advised that his cases had been transferred to another team member and he would be allocated new cases upon his return to work.
On 20 May 2019, Ms Entwistle forwarded to the applicant by email a recruitment drive in the Client Engagement Group for EL1 positions, and on 10 June 2019 the applicant applied for an EL1 Tax Officer position for which he was shortlisted. He attended an interview on 5 July 2019. Subsequently, on 16 August 2019 the applicant was advised that Ms Entwistle whom he had nominated as his referee was to receive a request to complete the referee assessment.
The requested referee report was a proforma document with questions to be answered by the referee. Following a delay in receipt and completion of the referee report, when completed, Ms Entwistle raised concerns about the applicant in response to certain questions. That referee report was before the Tribunal[20].
[20] Exhibit A, T17, pages 72-73.
The applicant alleges that, due to the contents of the referee report which he contends were unreasonable in respect of the concerns raised by Ms Entwistle, together with the stated conflict with Ms Entwistle and Mr Pennuto since his re-employment, he has suffered the psychological injury.
Respondent’s position
The respondent contended that providing the report by Ms Entwistle was reasonable administrative action within the meaning of s 5A(2)(f) of the SRC Act. Section 5A(2)(f) relevantly states:
reasonable administrative action is taken to include anything reasonably 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.
Further, it was the respondent’s submission that the ailment was a consequence of that reasonable administrative action, which was undertaken in a reasonable manner, which was the causative event of the applicant’s ‘adjustment disorder with features of anxiety and depression’.
The respondent submitted that, insofar as the applicant argued that the psychological ailment was suffered earlier in time, there was an absence of evidence in support of that contention.
In reference to the “reasonable administrative action exclusion” at s 5A(1) of the SRC Act, the respondent cited Hart v Comcare[21] for authority that, if the applicant’s condition was sustained as a result of one or several causes, no compensation is payable if any one of those causes is determined to be reasonable administrative action conducted in a reasonable manner.
[21] (2005) 143 FCR 29.
Hence, the respondent submitted that the question for the Tribunal was whether the raising of various concerns in a referee report was reasonable and performed in a reasonable manner.
Applicant’s position
The applicant referred the Tribunal to various cases and submitted that they supported his application[22]. The applicant in his opening agreed that the act of providing a referee report was reasonable but that it was not performed in a reasonable manner. He further submitted that he had a history of, and was suffering stress and depression for two and a half years, which he had disclosed to the human resources division of the ATO and Ms Entwistle and which was relevant to the question of whether the reference report was performed in a reasonable manner.
[22] The applicant asked the Tribunal to consider the following cases:Bailey and Comcare (Compensation) [2020] AATA 1244; Comcare v Martin [2016] HCA 43; Lim v Comcare [2019] FCAFC 104; O’Callaghan and Comcare [2019] AATA 4378; Wiegand v Comcare [2002] FCA 1464; Martinez and Comcare [2012] AATA 795; Wiggins v Comcare [2019] FCA 1465; Ting and Comcare [2014] AATA 85; Sami and Telstra Corporation Limited [2012] AATA 41.
The applicant also referred to the fact that he applied for four EL1 promotions. The fourth position, which he applied for when he was on carers leave, gave rise to Ms Entwistle’s report. He argued that in regard to the third application, he was successful, but he was not released from his existing position. This, he submitted, supported his argument that he was appropriately qualified for the fourth EL1 position and that the reference report was not conducted in a reasonable manner.
The Evidence
The applicant
With the respondent’s consent I received into evidence the applicant’s SOFICs dated 17 December 2020[23] which was 65 pages in length and was in the nature of a detailed statement of the applicant’s evidence, and summary of his witnesses including expert witnesses, and his submission with respect to those witnesses. I also received his undated ‘Employee Statement’ (the Statement) which provided a chronology of events from 26 March 2016 to 11 September 2019[24] together with attachments. The applicant said he used his contemporaneous notes to prepare the Statement.
[23] Exhibit B.
[24] Exhibit A, T1, pages 7-25.
The Applicant confirmed that he resigned from the ATO in 2014 at which time he was an EL1. He resigned because of issues with his eyesight. His doctor then said he was going blind. He returned in March 2016 as an APS 6 Officer in an audit position. He returned under a scheme for employing people with a disability. His workstation was set up to accommodate as best as possible his special needs. Upon his return Ms Entwistle became his line manager. He had not previously worked with her. He worked both alone and in a team.
His initial involvement with Ms Entwistle was positive. He applied for 8 weeks of purchase leave which was available to him because he was employed under the disability scheme.
The Applicant applied for a number of EL1 positions which were unsuccessful.
The applicant confirmed that he suffered a pulmonary embolism in March 2017. He was off work for about 4 to 5 days and returned after first seeing his physician Dr Cobain with whom he had been consulting since 2000.

Following his return to work he told Mr Pennuto and Ms Entwistle that he would be using the stairs to help improve his blood flow. He said that they raised concern that he had trouble with his vision and had just suffered a pulmonary embolism. The applicant said he could not understand why they raised that concern.
The applicant acknowledged that the managers had a duty of care to employees. He said that he had a doctor’s clearance but, nonetheless, they asked that he have an Early Intervention Assessment. The applicant said that was, at that time, “fair enough”. He took no issue with his managers requiring that assessment. He acknowledged it was an assessment to determine whether an employee was fit for work as part of an occupational health and safety obligation.
However, the applicant said that he queried why they also needed another vision assessment and repeated that Ms Entwistle and Mr Pennuto raised whether he should be at work. He said they requested this be done because they misunderstood the period of time the applicant had been lubricating his eyes.
The Applicant had the visibility assessment and there were no restrictions placed upon him.
From March 2017, the workplace was generally satisfactory until he received the Early Intervention Report. It was Ms Entwistle’s response to that report that caused the applicant concern. The applicant provided a lengthy explanation for that concern which included that Ms Entwistle approached the applicant’s workstation and spoke to him, which he said was not appropriate. The conversation should have taken place in the privacy of an office. She spoke to him about the assessment. She raised with the applicant that Dr Cobain had not provided a report and that he had not been cleared to work. She was going to discuss with Mr Pennuto the applicant’s use of eye drops. There was discussion about him using coffee break periods to put his eye drops in. The applicant explained that if a coffee break was longer than 15 minutes, it had to be put on the employee’s flex time. The applicant was critical of the conversation and was of the view that Ms Entwistle did not think he should be in the workplace.
The applicant then sent an email to the HR Department and Ms Pagano dated 19 April 2017 complaining about his conversation with Ms Entwistle[25].
[25] Ibid, T8, pages 48 – 49.
The applicant continued to apply for EL1 positions in early 2018 and then in 2019. As to the 2018 application, he was placed on a merit list and in December 2018 he told Ms Entwistle and Mr Pennuto of that fact. By being placed on a merit list it recognised that the applicant was a person appropriate to hold an EL1 position and, should a suitable position become available, he may be offered that position.
The applicant said he did not know that he was intended to be offered an EL1 position in 2019 until after he was refused a release from his current position as evidenced in an email from Ms Entwistle to Mr Pennuto dated 25 February 2019[26].
[26] Exhibit H.
The applicant agreed that it was standard procedure that when a person is on a merit list, that person’s manager will first be consulted to determine if that person will be released. He said that Ms Entwistle and Mr Pennuto did not want the applicant released at that time because of the role he was performing as a leader on a very complex national case. The applicant said that given his role in that matter it was a shock when he subsequently received the referee report expressing concerns about his work performance.
On 2 April 2019, the applicant confirmed he went on carers leave because of his wife’s ill health. On 10 May 2019, he offered to return to work for two weeks to assist the ATO with his investigation but was informed his case had been reassigned.
The applicant said that while on carers leave, he kept in touch with Mr Pennuto about his wife’s condition and Ms Entwistle kept the applicant informed about a position that became available and in relation to which the applicant may have an interest. He applied for that EL1 position in June 2019 which gave rise to the creation of the referee report.
The applicant said that he did not tell Ms Entwistle directly that he had applied for the position and he assumed she knew that he applied. He agreed that Ms Entwistle was doing what she would normally do for anyone not in the workplace by providing details of available positions in the workplace, and that she was not targeting the applicant to apply for the position.
The applicant said that at this stage he thought his relationship with Ms Entwistle was “ok” but that every chance she had she said something about his vision which he just ignored. He thought their relationship was cordial. He tried to get out of the section, but they would not release him.
The applicant said, consistent with paragraph 63 of the Statement, that on 17 August 2019 he received an email from ATO Careers advising that they were still awaiting the referee report. He said he contacted Ms Entwistle by telephone after which she provided the referee report. On 4 September 2019, the applicant received an email advising him of the concerns raised by Ms Entwistle in that report and inviting him to provide a response.
The applicant said he found it amazing and that if a job applicant was to receive an adverse reference report the applicant should first be told. He conceded, however, that this may have been the first time that Ms Entwistle was aware that the applicant had applied for the relevant EL1 position. He assumed she knew that he would apply for the position.
As for his conversation with Ms Entwistle on 17 August 2019, he said Ms Entwistle said she had already sent the report. He checked with the recruitment agency, confirmed it was not received, he spoke again to Ms Entwistle and she said that she would resend it, but did not tell the applicant the contents of it.
The applicant agreed that as at 17 August 2019 Ms Entwistle had understood that the referee report had already been completed and sent and that she was just then resending that which she had already done.
On 4 September the applicant became aware of the contents of the report. He was shocked by the contents of the report and he telephoned Ms Entwistle. He denied that he was enraged when he spoke to her. He told her he was in charge of a national audit and no issue was raised with him, but she said it was to do with his work six months earlier. He said to Ms Entwistle that the Compass performance reports were satisfactory, but Ms Entwistle said in the last six months his performance had declined and that the most recent Compass assessment had not been completed because the applicant had been on carers leave.
The applicant was critical of Ms Entwistle not performing the Compass assessment in February 2019 immediately before he went on carers leave because previous Compass assessments had been done in the February of each year.
The applicant said that Ms Entwistle had problems with his performance dating to October and November 2018 which involved leadership, and the use of technologies for putting someone on a watch list. The applicant said the relevant recipient was put on the watch list. The applicant acknowledged that he misdated a formal Notice compelling the recipient to give the ATO requested information other than that under legal professional privilege. He put the year 2018 instead of 2019 on the Notice which was also not picked up by his temporary manager who checked the Notice prior to it being sent.
The applicant said he disclosed the error, and there was a further error identified. These matters were raised in February and March 2019 at a case callover which involved a discussion about matters under investigation and possibly proceeding to prosecution.
Hence, the applicant conceded that at the time he went on carers leave he was aware of issues with respect to the Notice (s 353 Notice)[27]. He was not aware of any other issue until after the referee report and meetings that occurred following that report.
[27] A notice under section 353-10 of Schedule 1 of the Tax Administration Act 1953 (Cth).
The applicant also complained insofar as Ms Entwistle, in an email dated 19 February 2019[28], had asked Mr Pennuto to speak to the applicant about certain issues. He said those issues should have been raised in a performance meeting. The meeting on 19 February 2019 was a case callover. He attended that meeting. When asked by the Tribunal if Mr Pennuto spoke with him about the issues raised by Ms Entwistle, his answer was vague and unclear; but then he said from memory he told them that the issues raised had been completed. The applicant said he was unable to access the case notes to confirm the meetings discussion. The applicant said Mr Pennuto said he had done an excellent job. The applicant also referred to an email on 25 February in which it was said he could not be released from his current position because he was doing an excellent job. The applicant was referred to that communication[29]. He acknowledged that Ms Entwistle did not there say he had done an excellent job and simply said that they could not release him from his current position.
[28] Exhibit A, T12, page 62.
[29] Exhibit H.
The applicant was given the opportunity to locate other documents which said his work was excellent. When asked if he had found such documents his explanation was lengthy. In summary he referred to a number of emails which explained that he could not be released from his current position which he said confirmed his work was satisfactory. This he said was also at a time when he said he received his new increment in his pay level and there were previous Compass performance reports that his work was satisfactory.
The applicant said that it was reasonable for Ms Entwistle to undertake the referee report, but it was not performed in a reasonable manner because the content of the report was incorrect.
He did not accept the basis of the concern raised in that referee report. Insofar as he was criticised for not putting a recipient’s details on a watch list, he said he did so and saved the ATO $200,000 dollars. He repeated that normal management practice required them to speak with the applicant if there was a performance issue.
In response to a question from the Tribunal, the applicant said that it was his expectation that if there were performance issues, these should have been addressed in the Compass assessment, which should have been done in December 2018 or as soon as practicable thereafter and before the end of February 2018. Further, he submitted that performance issues should have been raised in accordance with Section F of the ATO Enterprise Agreement.[30] He said there were case callovers at which robust discussion would occur but there was not a Compass performance interview which should have occurred. The applicant said Ms Entwistle told him she ran out of time to do the Compass performance interview and report. Hence, the first time he heard of any performance issue was the referee report.
Cross-examination
[30] Exhibit F.
In cross-examination, the applicant agreed that he had not been diagnosed with any psychiatric condition by any medical practitioner between March 2016 and August 2019. He said he tried to put up with the workplace issues.
In the Statement, under the heading “5 September 2019”, the applicant referred to having been harassed, humiliated and embarrassed by Ms Entwistle for the last three years, resulting in immense psychological distress and leading to sleep loss, dry reaching, nausea loss of appetite shaking due to nerves and anxiety[31]. He did not refer to those physical conditions being present prior to the referee report. He said he was stressed and depressed and those conditions first occurred when Ms Entwistle was yelling at him at his desk, but he did not go to his medical practitioner. He spoke informally to Dr Cobain. He did not take it any further. He was advised to take notes which he did.
[31] Exhibit A, T1, page 21.
The applicant agreed he was not referred to a psychiatrist or psychologist during that same three-year period.
Under the heading “2 November 2018”[32] of the Statement, the applicant referred to his application for an EL1 Client Engagement Officer position. He previously described in evidence that application being successful. The applicant accepted he was never offered that position but was placed on a merit list.
[32] Ibid T1, page 15.
Under the heading “27 November 2018” [33] of his Statement, the applicant extracted part of the email from ATO Careers which said he had been placed in the merit pool which could be used to fill similar positions. He agreed it did not obligate the applicant to be offered a position but provided an option to do so. Further, the email said that offers were subject to completion of a successful referee check. If there was no successful referee check he may not be offered the position.
[33] Ibid, T1, page 16.
In completing the Statement, the applicant had access to his contemporaneous notes and his emails. It was undated but was filed at the time of filing the application for review. He said he prepared the Statement in about September 2019, at the time the incident happened. He agreed this was his most accurate statement of events.
The applicant was questioned about the delay in the referee report being provided by Ms Entwistle.
He was referred to para 63 of his SOFICs[34] in which he referred to informing Ms Entwistle on 17 August that ATO Careers were still awaiting her referee assessment. There was no reference to a telephone call as he described in his evidence-in-chief. His evidence changed insofar as he now said Ms Entwistle informed him that she never received a request for a reference report. This was contrary to his earlier evidence that Ms Entwistle said she would resubmit it. He said he expressed himself poorly when responding to the Tribunal’s earlier questions. He maintained that she had not received it. Nonetheless, he agreed this communication was premised on there having been a telephone conversation.
[34] Exhibit B.
Under the heading “17 August 2019” of his Statement[35], in relation to these events, and which he said was his most accurate evidence, the applicant described communication between he and Ms Entwistle as being wholly by email and there was no reference to any telephone communication. He there summarised Ms Entwistle’s email response, including that she had not received a referee check from ATO Careers, she requested the applicant to provide her the application and resume in respect of the position and she asked the applicant to chase up with ATO Careers the reference check.
[35] Exhibit A, T1, pages 17-18.
The applicant said that he thought he had a phone call with Ms Entwistle but did not record it in his Statement. He could not explain why but then said he had a diary at work which had his notes contained in it. But as counsel put to the applicant, he was not then at work. He had been on carers leave for some months and at the time of his communication with Ms Entwistle.
The applicant then said that he did call Ms Entwistle because it was important but then said he could not explain the inconsistency and that he could not answer the question because he could not recall. His evidence about his communication with Ms Entwistle was not convincing and lacked credibility and reliability.
In relation to the applicant’s release to assume an EL1 position, the applicant was referred to the statement of Mr Moran dated 29 January 2021 and the attached email from Ms Hanna dated Friday 15 March 2019[36], in which Ms Hanna said that the applicant “cannot be released at this time due to his leadership on significant complex audit cases.” The applicant said that he did not know Ms Hanna who was a member of the industrial and small business support team. The applicant agreed that Mr Pennuto and Ms Entwistle did not refer to the applicant’s leadership in the audit team as a reason why he could not be released, and that leadership was referred only by Ms Hanna and was her word, not his managers.
[36] Exhibit C.
In reference to an email dated 22 February 2019 from Mr Pennuto[37], the applicant agreed it correctly stated that there was only one audit team available and a lack of staff such that the loss of another staff member would require redistribution of work. Further, that the applicant was working on a high-risk case which was difficult to move to another officer, and the applicant agreed that this one matter sustained his entire workload. To transfer it to another staff member would have been inefficient and an unfair burden on that work colleague. However, they had to transfer the case when he went on carers leave.
[37] Exhibit H.
The applicant was referred to the email dated 25 February 2019 from Ms Entwistle to Mr Pennuto[38] advising that they were unable to agree to the release of the applicant from his current position, and her explanation for the reasons. The applicant agreed the matter was significant. He agreed that he had established internal and external relationships, and he was to conduct an interview in a month. He accepted that if another person took over the carriage of the case a new notice may have had to be issued, and that it was inefficient to allocate another team member to the matter.
[38] Exhibit H.
In a subsequent email dated 25 February 2019[39], Mr Pennuto said the applicant was managing a high-risk priority audit with formal interviews planned as well as other activities and reallocating to another officer would jeopardise ongoing audit strategies. The applicant agreed that was correct.
[39] Ibid.
The applicant was referred to paragraph 14 of Mr Pennuto’s statement[40]. It detailed the matters raised with the applicant in the meeting of 19 February, including the applicant’s failure to use ATO technology to put an entity on a watch list. The applicant in his SOFICs strongly disputed that allegation[41]. But it was put to the applicant that it was his failure to use current ATO technology that was the issue. The applicant’s response was that the person was put on the watchlist.
[40] Exhibit I.
[41] Exhibit B, page 35.
His evidence seemed to fail to appreciate the need to use current technology to do so. It was not disputed that that the applicant placed the recipient on the watchlist. It was the failure to put related entities on the watchlist that was the issue.
The applicant agreed that conducting an interview is an important evidence gathering tool and answers to questions can determine the course the matter takes. He agreed that the questions are important, and it was usual practice that the questions be reviewed by the EL1 and possibly the EL2 before the interview. However, at no point in his SOFICs does the applicant say that he provided Ms Entwistle or Mr Pennuto with the interview questions. He said that Ms Entwistle asked him to consult with a technical specialist in another team in respect of the questions. Since the applicant recommenced employment with the ATO in March 2016 he had not performed a formal interview.
The applicant said that he did show Ms Entwistle the interview questions, but he could not recall when that occurred. He did not accept that he failed to show Mr Pennuto the questions, but he could not say when that occurred. He said it was probably on 19 February 2019 or the following meeting on 13 March 2019. He could not suggest any reason why he would not have shown them the questions on either of those dates.
However, the applicant could not recall the circumstances of either the February or March case callover meetings, the length of either meeting, or any discussion about the questions to be asked of the recipient. His recollection was that everyone regarded the questions as appropriate which was also the position of his EL1 and EL2, Ms Entwistle and Mr Pennuto respectively.
As for formal notices issued to a person to attend an interview, the applicant accepted that non-compliance by that person with the notice will render the recipient liable to prosecution. As a general proposition, if a formal notice contains an error, that error might invalidate the notice. There is good reason why the contents of the notice must be correct.

The applicant said that the errors he made in the notices were insignificant and of no consequence and the recipient did not dispute the contents of the notice so there was no issue with them or their content. The applicant agreed that the ATO cannot always rely on a recipient not disputing the contents of the notice and hence they must be accurate.
The applicant said that in the meeting of 13 February 2019 (which he later said was 13 March 2019) they had discussion about the errors in the notice and that the required process was followed. He said everything was satisfactory. However, following that meeting he received an email from Ms Entwistle saying he did not follow the process and procedure, an allegation which he disputed. He described the conduct of Ms Entwistle as a witch-hunt. He said he contacted Mr Pennuto and had a robust discussion with him. Mr Pennuto told the applicant that he did not have to respond to the email and “we will go on from this”.
The applicant agreed that errors contained within a notice is something that a manager should be concerned about.
The respondent put the proposition that raising concerns about performance does not mean a person is underperforming. He did not answer the question. The applicant gave a lengthy response explaining that the error in one of the notices by inserting the year 2018 instead of 2019 was an error understandably made, that the notice was given to and approved by his acting EL1 who made the same error. He said the errors in the notice were minor mistakes. They were trivial.
It was put to the applicant that the errors he made in the formal notices in a significant ATO investigation, demonstrated that the he was not suited to a leadership role. The applicant rejected that proposition because he received confirmation from the ATO experts that the errors were trivial. He said that he identified the mistake and brought it to the attention of his managers.
Mr Moran
Mr Moran was to be called as a witness, but the contents of his email statement dated 29 January 2021 were not in dispute and by consent I received his statement into evidence[42]. I accept his evidence which I will summarise.
[42] Exhibit C.
Mr Moran was formerly the Team Leader, Small Business Client Engagement of the ATO who in early 2019 was endeavouring to fill a temporary vacant EL1 position.
A list of eligible/approved persons was available at various levels within the ATO. Mr Moran requested the applicant be released from his current role to undertake higher duties in his team. Mr Moran understood that higher duties must be offered to persons available from the list.
Mr Moran understood that if an officer was deemed critical to the current area they may not be released if the transfer was at the same level and not a temporary promotion. In the case of the applicant he expected the release to be a formality. If not released, fairness would generally dictate some recompense would be made to that officer in his or her current role.
Mr Moran said the applicant was denied the transfer “on the ground of his leadership on the significant complex audit cases”. He referred to the email from Ms Hanna which was attached to his statement. Mr Moran said:
For your information I had previously worked with [the applicant] on two occasions for some years, in Special Audit and laterally in Indirect Tax and can state that I have found him to be highly skilled, knowledgeable and experienced auditor who has a high standard of integrity.
This opinion is reinforced by the response above, in that he would not be released [due] to his ’leadership on significant complex audit cases’.
The Tribunal notes that the attached email from Ms Hanna was the only reference to the applicant’s leadership which was not was not referred to by Ms Entwistle or Mr Pennuto as a reason to decline to release him from his position.
Ms Entwistle
Ms Entwistle had been an employee of the ATO for 21 years and at the time of the hearing was an EL2 Director of the Tax Evasion Program within the ATO. She had held that position since October 2020. In 2019, Ms Entwistle was the EL1 Team Leader for the Tax Evasion Program which position she started in December 2015.
Ms Entwistle gave evidence and was referred to her statement contained in the Comcare Statement of Facts[43] which she prepared. She had recently read her statement and confirmed the contents were true and correct.
[43] Exhibit A, T37, pages 120-129.
Ms Entwistle said that prior to September 2019 the applicant did not report that he suffered psychological symptoms.
She had conducted Compass performance reviews with the applicant from March 2016 until he commenced carers leave. At no time did he ever suggest that Ms Entwistle treated him unfairly and he never made a formal complaint about her management of him. At no time did he request that an alternate team leader conduct his performance reviews.
Ms Entwistle was referred to the referee report she completed with respect to the applicant on 21 August 2019[44]. She responded to each of the seven questions contained in the report. In respect of the answer to each question there was a drop-down box with answers “yes”, “no” or “have some concerns”. There was then a provision to complete a free text.
[44] Ibid, T17, pages 72-73.
Ms Entwistle said that she answered each question truthfully and was not motivated to sabotage the applicant’s career advancement, nor did she have any issue with his physical health matters.
She said that up to this time she had completed nine referee reports for employees, not all of which had been positive, and no complaints had ever been made in the workplace by an ATO employee about her.
Insofar as the applicant says the 2018 to 2019 Compass mid-year review was due in December 2018, she said that was not correct. The Compass reviews are dependent upon when the work program is released. For that year, the work program was released in mid-October 2018 so the Compass mid-year (six-monthly) review was done in April 2019, and the Compass review for the team was finalised in November 2019. On both occasions the applicant was on leave. This is the reason why, when the applicant went on carers leave, his Compass review had not been done. The rest of the team had their six-monthly Compass review completed at the end of April 2018.
Further, Ms Entwistle did not know at that time that the applicant was going to be on carers leave for five months, but issues were raised in February and March 2019 with respect to the quality of the work he was producing.
Insofar as in 2019 the applicant, when on carers leave, applied for the position of EL1 and raised the need for a referee report to be completed, at no time did she have a telephone conversation with the applicant.
Ms Entwistle was referred to an email from her to the applicant dated 20 May 2019 and a document headed “Recruitment in the Client Engagement Group” which referred to recruitment positions available including EL1 positions[45]. She was required as part of her management duties to provide this information to those employees on long term leave so they may apply for the position if they wished to. She forwarded the document to the applicant and did not receive a response to her email.
[45] Exhibit D.
Ms Entwistle said she was not encouraging the applicant to apply for any position but provided it for his information as she was obliged to do. She did not receive a response until the request for a referee report.
Ms Entwistle was not aware in November 2018 that he then applied for an EL1 position. She was not asked to provide a reference report in relation to that application.
In reference to Exhibit H, being the emails relating to the non-release of the applicant for an EL1 position, and in particular the email dated 25 February 2019, she said that she intended to convey to Mr Pennuto that at that time they had resource constraints, including another APS6 staff member taking long term leave. This was the applicant’s case and his name was on the formal notice. The formal notice would have to be withdrawn and reissued which would have caused delays in the case. The applicant had already completed work on the case, had knowledge of it and it would have been inefficient to give the case to another officer, particularly having regard to the resource complaints within the team at that time.
Ms Entwistle explained that the notices would require a person to attend the ATO for a formal interview and give evidence. The notice identifies who will be representing the ATO which in this case was the applicant, Ms Entwistle and her Director. Hence, this was the group expected to be representing the ATO and a change in that membership required the original notice to be withdrawn and a new notice to be issued. The notice requires that a person be given 28 days to comply, so a change in notice would result in a 6 to 8 week delay.
Ms Entwistle also explained that in her email at Exhibit H she had not been referring to the applicant’s leadership in this matter. It was his allocated case and it would have been inefficient to reallocate the case.
In 2018 and 2019, it was not Ms Entwistle’s view that the applicant was underperforming. Underperforming was an established consistent use of time in which a person did not get the job done. Ms Entwistle said she had never noticed the applicant to underperform. However, in February and March 2019 two significant events happened namely (i) the failure to put persons on the watchlist and (ii) the creation of an invalid formal notice. She said these were two issues in respect of the quality of his work that she and her Director brought to his attention. Accordingly, in the referee report she needed to give an honest and accurate answer to the questions raised.
She explained the purpose of a monthly case callover. The failure to put someone on the watchlist was brought to the applicant’s attention in the meeting. She also raised this with her Director and asked him to discuss it with the applicant as well. The issue in the March case callover was the invalid notice. She raised this with her Director and asked that he follow up this issue with the applicant in order to understand the procedure the applicant had followed that resulted in the production of the invalid formal notice.
Ms Entwistle provided further explanation of the two incidents. They related to the one particular case that the applicant was working on. She asked the applicant to look at all associated entities that related to the person under investigation and place each of them on a watch list. This then informs the ATO if a person has lodged a refund and the ATO can stop that refund being released and retain it. That failed to happen, and a refund was released that the ATO wanted stopped.
The applicant’s position, that he had put the entity on a watch list that stopped the release of a refund payment, was put to Ms Entwistle. In response, Ms Entwistle explained that the investigation may relate to a particular person, but there were associated persons that she directed be put on the watchlist. Those associated persons were not put on the watch list as directed. It was only when the excise area of the ATO said a refund had been released that she became aware that the applicant did not do what was asked of him. Only the one person under investigation had been put on the watchlist. One refund was released that should not have been released, and three others were then put on the watch list. This advice from the excise area, she said, arose when the applicant left on carers leave and when the matter was transferred to another case officer.
Ms Entwistle explained that in respect of the notice, there were two issues. There was an incorrect date, namely 2018 instead of 2019, which she accepted can happen. However, the significant issue was that the notice to a director of a company was incorrectly addressed to the company address, rather than the director’s personal address. Ms Entwistle had provided the applicant with examples of similar notices so he could see how the notice should be addressed. He still made the mistake and created an invalid formal notice. The Director, Mr Pennuto, followed up with the applicant the procedure he had used. She only observed this mistake once in the March 2019 period. She said the issuing of valid notices is an important part of the ATO’s work.
They were the only issues she had with the applicant at that time. He otherwise performed as an APS 6, but Ms Entwistle said she was obliged to refer to her concerns in the referee report because they were significant issues that she escalated to her Director Mr Pennuto. The matters were a significant part of the ATO case.
The Tribunal also asked Ms Entwistle about her email to Mr Pennuto dated 19 February 2019, requesting he speak to the applicant because of his failure to follow the directions. She explained that those issues also related to a request that the applicant prepare formal interview questions for the pending interview. He prepared some questions and she gave him some feedback, but she wanted him to understand the importance and the urgency in finalising the interview questions. The ATO only has one opportunity to conduct an interview and she needed to be sure the questions were in sequence and pertinent to the case. She wanted her Director to speak to him and get a move on with finalising the questions.
Ms Entwistle said she received some further questions but not the final version. The applicant went on carers leave in April and the case was transferred to another case officer. The investigation was in relation to WET (wine equalisation tax) and they were working closely with the ATO Excise Team. That team included Ms M Whelan and Mr D Sandu. They had input into the questions formulated by the applicant and to be considered by Ms Entwistle.
These and other matters were raised with the applicant at each of the February and March case callovers that she and Mr Pennuto had with the applicant. When Ms Entwistle felt the matter was not going the way she wanted it to, she asked Mr Pennuto to explain to the applicant the significance of what they were trying to achieve and the importance of the pending interview.
Ms Entwistle believed that Mr Pennuto and the applicant spoke on the telephone, and discussed the notice procedures that were followed, the watchlist alert and the invalid formal notice in the case callover meetings in February and March 2019. By March 2019 the final version of the questions had not been received. Ms Entwistle said that the applicant was aware of the concerns raised, the disappointment about the invalid formal notice and the concerns about the watch list.
Ms Entwistle explained that with the identification of other entities to be placed on a watchlist, there was a computer tool to be engaged that identified the link with other entities and then a separate system to place an entity onto a watch list alert. There was also a separate system to be used to create a valid formal notice. The applicant would have been trained in those systems in 2016 when he returned to the ATO. He had placed entities on a watch list and created notices before, however having seen these issues, including the invalid formal notice, it was intended that at his next Compass assessment he have some further learning and development in using the tools and procedures and re-familiarise himself with formal notices.
Ms Entwistle explained it was for those reasons she raised concerns in the reference as it related to a potential EL1 in her team. She said that at no time did she witness the applicant’s leadership as expected of an EL1, which included mentoring other team members. It was her observation that other team members assisted the applicant.
Ms Entwistle recalled receiving the email communication from the applicant in 2019 that she had not completed the referee report. She responded by email that she had not received it, and that it was determined that an incorrect email address had been given. They did not speak by telephone.
When providing the reference, Ms Entwistle did not consider the need to speak with the applicant and advise him that in every respect, he may not receive a favourable reference, because she had already raised with him those concerns in February and March 2019 and believed he was well aware of them. Further, she never answered a question with the response “no” but answered “have some concerns”.
Subsequently the applicant telephoned Ms Entwistle, was rude and aggressive, said that he did not agree with her report and accused her of trying to sabotage his career, and said that she had an issue with him because of his vision impairment. Ms Entwistle said she did not get the chance to speak much in that conversation. Mr Pennuto was in town at the time, so they organised a meeting with the ‘person support team’. The applicant came to the meeting with a support person. They went through a rationale for the referee report, and also discussed a team restructure and staff movement. It was thought that the applicant was an appropriate person to take on a different role because he had been on leave for some time and did not have any case work which needed to be transferred to another person, which would be inefficient. This meeting occurred in early September 2019.
The following day the applicant came to her desk, said he was not feeling well, was stressed and he has been on leave ever since. This was the first occasion that the applicant said he was feeling unwell due to stress.
Ms Entwistle said that she had no issue with the applicant’s vision impairment. They had to accommodate his workstation which was done when he returned to work in March 2016. He had a workstation near a window for natural light. There was an occasion when they undertook an Early Intervention Assessment following a pulmonary embolism. The applicant told her he nearly died on the weekend and her first thought was whether he should be at work, and the Director asked for the assessment to be done. The applicant had said that he was walking up and down the stairs to improve his blood flow and they were concerned should he have a fall. Ms Entwistle contacted the person support team who recommended the Early Intervention Assessment and in so doing also look at how they may better support him with his vision impairment.
Ms Entwistle said that in the context of that Early Intervention Assessment they discussed issues relating to workplace role and function and that on occasions she would go to his workstation and not know where he was. She explained that she had a duty of care to know where her staff were if, for example, an emergency arose such as a fire alarm. So, a system was put in place such that if he went to change his contact lenses, he would let Ms Entwistle know, and he would document that on his time management system. He thereafter on every occasion informed Ms Entwistle when he was changing his contact lenses, he maintained an accurate record in his time management system and there was no further issue.
Ms Entwistle described her working relationship with the applicant prior to taking carers leave as amicable. He did get upset when they raised the work issues in February and March 2019. She said she had a lot of empathy for him when his wife had an injury and when extending the unplanned carer’s leave. They exchanged emails and she wished him all the best. The relationship broke down following the referee report.
Ms Entwistle recalled communications between the applicant and Ms Pagano in which he said he felt discriminated against. Ms Entwistle said this arose in the context of having the Early Intervention Assessment. They advised the consultant about the various workplace roles. The only issue was the need for the applicant to wash his contact lenses twice a day and they put in place arrangements for that to occur. Ms Entwistle then spoke with the applicant and explained the time management system. She was telephoned by the ‘people support team’ advising the applicant had some issues. Ms Entwistle said that she, the applicant and members of the ‘people support team’ met. She apologised if the applicant had taken a particular view about the conversation but that they had an assessment which provided for his movement and time recording arrangement and thereafter there was no issue with the applicant. Ms Entwistle was not aware after that process that the applicant was stressed or distressed.

Ms Entwistle was referred to an email dated 26 April 2017[46] in which the applicant raised feeling discriminated against because of his disability. She explained that after that email they had a meeting with Ms George and the applicant to explain the purpose of the Early Intervention Assessment. She believed they felt comfortable that Ms Entwistle was meeting her obligations as a manager. This was two years before the incident involving the referee report.
Mr Pennuto
[46] Exhibit A, T9, pages 51-52.
At the time of the hearing, Mr Pennuto was an ATO Executive Level 2 (EL2) Director at the ATO in the tax evasion program. He had held the same position in 2018 and 2019 which included managing the Adelaide team. He has worked for the ATO for 30 years.
Ms Entwistle reported to Mr Pennuto and the applicant reported to Ms Entwistle.
Mr Pennuto provided a statement signed and dated 21 May 2020[47] and gave evidence.
[47] Exhibit I.
Ms Entwistle was responsible for the day-to-day management of the applicant. Mr Pennuto’s role was not day-to-day management. Mr Pennuto was also located in a different state.
Mr Pennuto explained that if an employee is on a merit list for a higher position it was not obligatory that the person be given that higher position if there were legitimate business needs. This might include priority work to be completed which may preclude that person’s release. The higher position may be offered to start at a later date depending on how long it would take to complete the work.
The matter the applicant was working on in 2018 to 2019 was a significant matter, and at the time of the hearing before me was still ongoing.
Mr Pennuto was referred to his statement with respect to communications with the applicant following the March 2019 meeting and the errors in the notice. He was also referred to the applicant’s SOFICs which states that Mr Pennuto advised the applicant to ignore an earlier email from Ms Entwistle about the error[48].
[48] Exhibit B, page 38.
Mr Pennuto did not accept the applicant’s record. He did not tell him to ignore the email, because the concerns raised about an incorrect notice were “really significant and important as part of the process for that case”. It needed to be resolved to ensure that if an incorrect procedure had occurred, they knew why it had occurred and that it was addressed. He did not tell the applicant to ignore Ms Entwistle’s email.
Mr Pennuto was not aware of the applicant’s November 2018 EL1 application that resulted in him being placed on the merit list until the request for his release was made. The request for release was made without a request for a referee report. He said this was an unusual request.
The Tribunal referred Mr Pennuto to early 2019 and the notice prepared by the applicant. He said the notice was incorrectly addressed and dated. That notice would be classified as an invalid formal notice. Ms Entwistle informed him of the errors and requested that he get involved and determine why the incorrect notice was issued. There are significant consequences that flow from the issuing of an invalid formal notice from a legal point of view.
Mr Pennuto had a discussion with the applicant and Ms Entwistle. He knew that the applicant had been provided with examples to use, prior to issuing the notice. Mr Pennuto asked the applicant to explain the reason for the error to determine if it was a personal error or whether there was a problem with their internal system. He concluded it was an error made by the applicant. Mr Pennuto said there was an approval process, which occurred and that too did not pick up the date error.
The Tribunal asked if the errors were insignificant or trivial. Mr Pennuto said the errors were significant because the notice becomes invalid. It can be challenged which was particularly so with respect to this matter. The party was very litigious. If invalid, a person does not have to comply with the notice. It would have to be withdrawn, and a new notice issued, which takes time and adds to delays.
Mr Pennuto explained the reason for the watch list. From an activity point of view, it may involve a refund request and hence it was a very important part of the audit and was relevant in real time. Multiple entities can be placed on the watch list.
There was a request to place all entities on the watch list. This could be significant depending on the size of the refund that is lodged. In the circumstances of this particular matter, they did not want any refunds issued until further verified. In this matter, Mr Pennuto could not recall if a refund was issued.
This was a complex case which would be allocated to an APS 6 officer to manage. The applicant was an APS 6 officer of the ATO.
The issues with the applicant’s work were discussed with the applicant at the case callover. Case callovers are undertaken monthly, and issues like this would have been discussed.
Mr Pennuto recalled the 19 February 2019 email from Mr Entwistle requesting him to intervene in the management of the applicant. She wanted Mr Pennuto to reinforce the importance of the case and the actions she was requesting he perform. That occurred in the case callover. Mr Pennuto attended a meeting with the applicant and Ms Entwistle. They discussed the technology to put entities on the watch list, the key questions for the formal interview, and action items were to be done in a timely and efficient manner and in particular putting entities onto the watch list. Ms Entwistle had prepared an email dated 5 February 2019 which contained a list of numerous matters which the applicant needed to undertake and which were discussed.[49] The formal interview with the person of interest was intended to take place in March 2019.
[49] Exhibit A, T12, pages 63-64.
Medical Evidence
Report of Dr Fry psychiatrist dated 19 November 2010[50]
[50] Exhibit Q.
The Tribunal received Dr Fry’s report in relation to workplace issues and the applicant’s psychological condition in 2010[51].
[51] Ibid.
Under the heading “Past Medical/Psychiatric History”, Dr Fry said the applicant reported in 2000, whilst working in his first management position, suffering “a bit of depression…’when he was getting different ideas from three directors’”[52]. He saw his general practitioner and took medication for six weeks and the issue quickly resolved.
[52] Ibid, page 5.
Workplace issues occurred in late 2009 and early 2010 following the applicant’s transfer to a new section within the ATO. He had issues with his then manager including the manager speaking to him in a loud manner in front of other people which he let pass. He also referred to management issues which caused him to lose more trust in his manager. The applicant also had issues with another staff member.
The applicant described the onset of significant anxiety symptoms including nausea, dry reaching, initial insomnia, palpitations and headaches. He first experienced those symptoms from February 2010 and took time off work. Dr Fry considered the applicant to be suffering from Adjustment Disorder with Anxious Moods.
The applicant returned to work, had moved to a different section and recovered from his diagnosed condition.
Dr Gleeson – GP Mental Health Treatment Plan date 18 September 2019[53] – Reports dated 7 November 2019[54] and 19 February 2020[55]
GP Mental Health Care Plan (the Plan)
[53] Exhibit O.
[54] Exhibit A, T41, pages 135-139.
[55] Exhibit F.
The Plan was prepared by Dr Gleeson and referred to a medical history from April 2002 to June 2019 during which there was no reference to any psychological condition. Under the heading “Personal History” he said, amongst other things, that the applicant “has undergone a recent significant stressor at work in which he was told he was not capable of the role he has been in for the last 3.5 years”[56]. He referred to performance appraisals throughout that time. He said the applicant was experiencing symptoms of anxiety and depression secondary to being placed in this position.
7 November 2019 and attached clinical notes
[56] Exhibit O.
The applicant had been attending Dr Gleeson’s general practice clinic, Pro Health Care Kidman Park since early 1990s. The applicant first consulted Dr Gleeson on 7 February 2019. The clinic’s online patient records commenced in the year 2000 and the first online record with respect to the applicant was 7 February 2000.
The applicant’s medical file indicated that from 23 February 2011 there was no documented concern regarding psychological symptoms or treatment.
Dr Gleeson first reviewed the applicant with regards to psychological symptoms on 9 September 2019 and noted that he had recently returned to work after a period of seven months carers leave. Dr Gleeson said that the applicant reported that with respect to his reference report “a referee… stated [the applicant] was in fact incapable of completing the roles of his current job". This was despite receiving favourable performance appraisals throughout the prior three and half years”[57].
[57] Exhibit A, T41, page 136.
I note that the consultation notes provided by Dr Gleeson[58], confirm that the applicant first raised allegations of work-related issues in the 9 September 2019 consultation.
[58] Ibid, T41, pages 140 – 145 at page145.
Dr Gleeson reported the applicant saying he was told of the concerns based on the prior six months, which the applicant found difficult to appreciate given he had been away on carer’s leave for the majority of that time. The applicant “developed a multitude of symptoms including stomach aches, dry reaching, difficulty sleeping with early morning wakening and feeling tremulous”[59]. The applicant thought he was put in an unfair situation and the symptoms were secondary to the stresses placed on him within his work environment.
[59] Ibid, T41, page 137.
Dr Gleeson reviewed the applicant on a number of occasions and referred him to Mr Hammond, a rehabilitation psychologist whom he first attended on 16 September 2019 and thereafter consulted regularly. Dr Gleeson spoke with Mr Hammond and it was agreed the applicant was presenting with adjustment disorder with features of depression and anxiety, secondary to stressors from his workplace. Dr Gleeson reported that the applicant had preceding concerns regarding workplace however the referee incident was the trigger for his current presentation.
The applicant was treated with regular psychological sessions which improved his ability to manage his emotions, decision-making and problem-solving. He was not prescribed medication. Dr Gleeson said it was difficult to give a prognosis but at the time of the report the applicant appeared less anxious and depressed. It was anticipated his prognosis would be excellent should he return to work in a supportive environment.
19 February 2020
Dr Gleeson in this report was responding to questions answered by Dr Walker in his second of two reports dated 22 January 2020 referred to below. Little turns on this report but for completeness Dr Gleeson disagreed with the answer to question 1 (referred to below) and opined that the applicant suffered major depressive disorder. He agreed the applicant was not fit to return to work.
Dr Gleeson also provided a medical certificate dated 25 September 2019, in relation to his examination on 18 September 2019 for injuries sustained on 9 September 2019 and diagnosed adjustment disorder with features of depression and anxiety[60]. A certificate in like terms was also completed by Dr Gleeson on 9 January 2020[61] and 13 February 2020[62].
Dr Kipling Walker – Forensic Psychiatrist Report (x2) dated 22 January 2020[63]
[60] Ibid, T28, pages 95-96.
[61] Ibid, T49, pages 173-174.
[62] Ibid, T52, pages 195-196.
[63] Exhibit L.
Dr Walker provided a report to the respondent. He first spoke with Dr Gleeson on 19 December 2019. He reports the conversation that the applicant had lost trust in the ATO and the people he worked with. Not gaining the EL1 promotion was the “trigger” to taking time off work. He could work in an environment in which he felt “safe”. Mr Gleeson did not know that the applicant’s manager discussed performance problems with him in February 2019.
Dr Walker also spoke with the applicant’s treating psychologist Mr Hammond on 19 December 2020. He reports the conversation that the applicant did not feel safe going to work, lost trust in the ATO, and faced a range of “unjustified criticism”. The applicant had a major depressive disorder; was not upset about failing to win the EL1 promotion; all his appraisals were “fine”. He was deliberately excluded and ostracised at work and was not fit for work. Managers needed to leave his disabilities alone when doctors certify him fit for work. They needed to stop criticising him unjustifiably when there were no performance problems. He is defending himself against allegations of performance problems.
Dr Walker summarised the applicant’s workplace. The applicant reported that his manger knew he had been stressed for 2 ½ to 3 years. In 2017 he wanted to move teams. He had a medical episode in March or April 2017. He had a “physical fitness for work assessment.”
He said despite only lubricating his eyes two or three times in the past year, his manager requested a vision fitness assessment and complained that his manager discussed his medical issues at his desk and that he had no restrictions. Dr Walker also reported the following:
In February 2019, his manager did not raise concerns about his performance. Rather the Director commented on the good work he did. In March 2019, he acted as an EL1. Since returning to work for the ATO in March 2016, annual increments in remuneration reflected that performance[64].
[64] Ibid, page 4.
Under the heading “Mental State Examination”, Dr Walker reported that rapport with the applicant was difficult to establish. He was difficult to interrupt when talking about issues and remunerated on perceived mistreatment from the ATO managers and process. He was critical of the workers compensation claims assessor and spoke of being “attacked” and about what the ATO had done to him and the fairness of what they had done. Nonetheless, he had no persistent signs of anxiety or depression. The diagnosis was depressive disorder.
Dr Walker opined that the applicant presented with symptoms but no persistent signs of depressive disorder. He reported:
His denial of performance problems is not consistent with corroborative information, that his manager spoke to him about his performance in February 2019. Dr Marco Gleeson described [the applicant’s] failure to gain promotion to EL1 in mid 2019 as the “trigger” to him taking sick leave. [The applicant] described the referee report used for that application as “the straw that broke the camel’s back.[65]
[65] Ibid, page 7.
In the separate report of 22 January 2020[66] Dr Walker answered specific questions. In respect to question 1 he opined that the applicant described symptoms of depressive disorder. The diagnosis is not supported by signs on the mental state exam or by investigation finding.
[66] Exhibit L.
In response to a question about fitness to return to work, he opined that the applicant was not fit to return to work.
Dr Blakemore psychiatrist – Report dated 28 January 2020[67]
[67] Exhibit A, T51, pages 184-194.
Dr Blakemore provided the report to the applicant’s former legal practitioners. Under the heading “History” he detailed events generally consistent with the applicant’s evidence. In relation to the referee report the applicant said he applied for a position and was interviewed in July 2019. The applicant reported having “received an adverse report from his manager referring to 6 months in which his work was not up to standard, and she had said in her referral that she would not want him in her team”[68]. The applicant said his performance appraisals had been good, that he had received pay increments throughout the relevant time and that when he spoke to his manager (Ms Entwistle) about the report “she claimed that for the last six months he had been performing poorly, but he said that of that six months he was only at work for one month”[69].
[68] Ibid, T51, page 187.
[69] Ibid, T51, page 187.
The applicant reported work stressors and unfair treatment and that he had written to personnel asking to leave the area, and that he was stressed and irritable. The adverse report was the final straw.
The applicant reported being ordered to return to work or else be terminated despite having a medical certificate of unfitness. He also reported to Dr Blakemore of receiving another message informing him if he did not return to work, he would be terminated as the ATO does not like problems. There was no evidence before the Tribunal of any such threat of termination of employment.
Dr Blakemore diagnosed the applicant as suffering from adjustment disorder with depressed mood. He reported “although your client has had two past episodes of workplace stress, these have seemed quite discrete and reactive to particular circumstances, there is no indication that he has been suffering any relevant pre-existing psychological injury which may have been aggravated or exacerbated by the workplace”[70].
[70] Ibid, T51, page 192.
Dr Blakemore recommended continued psychological counselling with the possible benefit of medication, in particular antidepressant medication, at first instance. He opined that it was unlikely the applicant would recover sufficiently to return to work with or under his present manager and director.
Dr Cobain - consultant physician – report dated 12 November 2020[71]
[71] Exhibit G.
The applicant in a letter dated 7 September 2020 wrote to Dr Cobain asking a number of questions which included, but were not limited to, whether the applicant was suffering from symptoms of adjustment disorder with features of anxiety and depression prior to 9 September 2019; and whether there was documented evidence of the onset of psychological symptoms between 29 March 2016 and 8 September 2019.
Dr Cobain reported that he had been consulted by the applicant since 17 October 2000. He opined that the applicant “suffered from symptoms of anxiety and depression from approximately March 2017 in the context of the diagnosis of multiple pulmonary embolism.” He went on to say it was clear that “his psychological distress had been increasing and as is often the case and he had been self-managing these symptoms.” He opined that work had been a contributing factor to the onset of symptoms. In his opinion, the applicant “would have suffered this psychological injury in the absence of this work situation”.
Dr Cobain agreed with Dr Blakemore and Dr Gleeson that work was a significant contributing factor to the onset of the applicant’s psychological injury.
Personality Assessment Inventory – conducted 10 December 2019[72]
[72] Exhibit P.
The applicant undertook a number of tests directed to the assessment of his personality. The author referred to those assessment factors that may distort the result of the testing. Nonetheless, the author said in respect of those indicators:
Certain of these indicators fall outside of the normal range, suggesting that the respondent may not have answered in a completely forthright manner…… The respondent’s response patterns are unusual in that they indicate a defensiveness about particular personal shortcomings as well as an exaggeration of certain problems.
… the [applicant’s] pattern of responses suggests that he tends to portray himself as being exceptionally free of common shortcomings to which most individuals will admit. As a result, he will be quite reluctant to admit to minor faults, perhaps not even willing to admit these faults to himself. He may be blindly uncritical of his own behaviour and insensitive to negative consequences associated with his behaviour, tending to minimise the negative impact that his behaviour has on others and on himself.
The [applicant’s] self-description indicates significant suspiciousness and hostility in his relations with others. He is quick to believe that he is being treated inequitably and will hold a grudge against others, even if the perceived affront is unintentional. Because he is likely to question and mistrust the motives of those around him, working relationships with others are likely to be very strained, despite the effort of others to demonstrate support and assistance.
Closing Submissions

The closing submissions of both parties were consistent with their respective openings and I will not repeat them in detail.
The applicant referred the Tribunal to a number of authorities. He referred in particular to O’Callaghan and Comcare[73] (O’Callaghan) wherein Member Webb determined that a manager’s failure to adequately notify the applicant of his underperformance for several months prior to a performance appraisal meeting, and the manner in which the eventual performance appraisal meeting was conducted, was not reasonable in the circumstances. He submitted that case applied in his matter.
[73] [2019] AATA 4378.
The applicant submitted that he has been subject to discrimination by Ms Entwistle and Mr Pennuto over a significant period of time, that he had been subject to inappropriate management practice, and that as a consequence he had suffered from psychological conditions for 2 ½ to 3 years. He submitted that the provision of the referee report was the final event and that administrative action was performed in an unreasonable manner and gave rise to his entitlement under the SRC Act.
He said that his successful Compass performance, his incremental salary increases and his work on the significant case for the ATO confirmed the quality of his work. The failure to conduct the Compass performance by February 2019 resulted in him not being aware of any issue and that he was shocked when he received the referee report.
The applicant also referred the Tribunal to Comcare v Wiggins[74]. His submission was that Ms Entwistle and Mr Pennuto’s management of him prior to commencing carers leave culminating in the provision of the referee report was performed in an unreasonable manner as further support for his claim under the SRC Act.
[74] [2019] FCA 1465.
The respondent submitted there was a dearth of evidence about any managerial issue before the applicant went on careers leave, or that there was evidence that the applicant suffered from any psychological condition prior to going on carers leave.
The respondent submitted that even if the Tribunal was satisfied that the applicant suffered a psychological condition prior to taking carers leave, the provision of the referee report was reasonable administrative action conducted in a reasonable manner which enlivened the exclusionary provision of the SRC Act and that the decision under review ought to be affirmed[75]. Further, that if the Tribunal was satisfied that the applicant did not suffer from a psychological condition prior to commencing carers leave, that for the same reason the decision under review ought to be affirmed.
[75] This submission was consistent with paragraph 34 of the Respondent’s written closing submissions, which referenced Hart v Comcare (2005) FCR 29 at [21]-[23] as authority for this proposition.
Considerations
The applicant has a history of two workplace incidents that have caused stress and distress. Those incidents include the conflict with management as referred to in the 2010 report of Dr Fry. As observed by Dr Blakemore in his report dated 28 January 2020, past episodes of workplace stress have seemed discrete and reactive to particular circumstances, with no indication that the applicant was suffering any relevant pre-existing psychological injury aggravated or exacerbated by the workplace.
The applicant referred to issues he had with the workplace and of feeling, among other things, harassed and discriminated against when he was asked to undertake certain workplace assessments after he suffered a pulmonary embolism in March 2017. He conceded in evidence that management had occupational health and safety obligations to ensure that his workplace was safe. He accepted that the Early Intervention Assessment was “fair enough” when considered in that context. However, he felt discriminated against when asked to undertake a further vision assessment.
There was an exchange of emails in April 2017 between the applicant, Human Resource Officer Ms Pagano, the applicant’s manager Ms Entwistle and Ms George which deal with issues the applicant had with the Rehabilitation Assessment Summary/Recommendations, and discussions he had with Ms Entwistle and his interpretation of those discussions. Ms Entwistle also raised issues in the email exchange about not knowing the applicant’s whereabouts when he left for extended periods of absence from his workstation. The applicant complained about the manner in which Ms Entwistle spoke to him and that the conversations occurred at his workstation which he said were not appropriate.
In the applicant’s email to Ms Pagano dated 26 April 2017, he reported a loss of trust and confidence in his Team Leader (Ms Entwistle), an absence of support for his condition, and it was the applicant’s objective to leave the work team if possible[76].
[76] Exhibit A, T10, page 54.
However, Ms Entwistle said in evidence that when she was advised of those issues, she, the applicant and members of the people support team met. She apologised that the applicant had taken a particular view about their conversations, that they reached agreement for time recording the applicant’s absence from his workstation and, from that time, she was not aware that the applicant was stressed or distressed in the workplace.
From that time, the applicant never complained to his treating general practitioner Dr Gleeson of any incident in the workplace or issue with management giving rise to any stress or distress or psychological injury. He did not complain of any symptoms which may have been indicative of a psychological illness.
The report of Dr Cobain, insofar as it refers to psychological distress, links that distress to his pulmonary embolism. Although Dr Cobain refers to this distress increasing, he provides no factual explanation in support of that comment, whether it was in the nature of self-reporting by the applicant and makes no mention of workplace conflict or management issues. As the respondent correctly observed, Dr Cobain in not a psychiatrist or psychologist. The respondent invites the Tribunal not to accept Dr Cobain’s report with respect to those matters that fall outside his expertise as a consultant physician.
The applicant said that Dr Cobain was his main medical practitioner who oversaw his medical treatment. Given the applicant’s complaint in evidence of 2 ½ to 3 years of being harassed humiliated and embarrassed, and the reported immense psychological distress resulting in sleep loss, dry reaching, nausea, loss of appetite and shaking due to nerves and anxiety, it is extraordinary that none of his medical practitioners have referred to either the complaints made of his manager and director, or the consequent impact the applicant said this had on his mental health during that period of time.
I note the applicant in 2010 made a similar complaint about his mental health resulting from workplace issues. That he now alleges that he suffered immense psychological distress in the period he worked with Ms Entwistle and Mr Pennuto, it is unbelievable that he did not raise these issues with his treating medical practitioners if he were truly suffering such managerial treatment with consequent mental health issues.
Insofar as the applicant said that he tried to put up with the workplace issues, I do not accept that evidence. The applicant conceded in cross-examination that he was not diagnosed with any psychiatric condition by any medical practitioner between March 2016 and August 2019.
The applicant also said in evidence that he wanted to call two work colleagues to give evidence but when speaking to them he was advised they were not permitted to provide statements or give evidence. I asked counsel for the Respondent to take instructions on that allegation. Ms Slack advised that the ATO had never refused permission for anyone to provide a statement or give evidence in this matter. I accept the respondent’s submission.
It is also noteworthy that Dr Gleeson prepared a GP Mental Health Treatment Plan in about September 2019 and in the referred medical history between April 2002 and June 2019 there is no reference to any mental health issue.
The applicant said that he thought his relationship with Ms Entwistle was “ok”, but then said that every time she said something about his vision, he just ignored it. He later said he thought his relationship with her was cordial, but he tried to get out of the section.
That description is strikingly different to his statement and evidence accusing particularly Ms Entwistle and also Mr Pennuto of misconduct. Ms Entwistle denied there was any issue with the applicant, particularly after they met in April 2017 with respect to the Rehabilitation Assessment Summary/Recommendations, and his work was satisfactory. She denied raising her voice to him at his workstation and denied that she had conducted herself inappropriately.
In the applicant’s email dated 19 April 2017, he said that on receiving the Rehabilitation Assessment Summary/Recommendations Ms Entwistle approached him at his workstation to discuss the report and its recommendations which he found “a little bit upsetting as it was a private matter discussed in the work environment, in earshot of all of my team members and others.”[77]
[77] Ibid, T8, page 48.
Ms Entwistle did concede that she met with the applicant and others in April 2017 following email exchanges at that time. She apologised for any misunderstanding and that from at this time, their relationship was amicable.
The Compass performance appraisals were all satisfactory, the applicant received his APS6 salary increments during this period and in 2018 was given a lead role in a significant tax investigation matter.
I am satisfied that insofar as the applicant was requested to undergo an assessment following his pulmonary embolism, which he described to Ms Entwistle and Mr Pennuto as a near death experience, it was reasonable and appropriate that such an assessment occur. Insofar as the applicant said he was going to use the stairs to increase blood flow, it was also appropriate to undertake a vision assessment to ensure that the applicant was not at risk.
I am satisfied that Ms Entwistle and Mr Pennuto were not being discriminatory with respect to the applicant’s eyesight condition. They conducted themselves appropriately as managers taking responsibility for ensuring the applicant was safe in the workplace. I am not satisfied on the evidence before me that Ms Entwistle or Mr Pennuto conducted themselves inappropriately or in an unreasonable manner in any of their dealings with the applicant from the time he returned to work and until he went on carers leave in 2019.
Any issue that the applicant had with respect to his managers was the consequence of his erroneous perception and incorrect interpretation of exchanges with his mangers and not as a result of unreasonable management performed in an unreasonable manner. The applicant only raised issues with Ms Entwistle and Mr Pennuto for the first time after he received the referee report in about September 2019. I am not satisfied that he was the victim of 2 ½ to 3 years of being harassed, humiliated and embarrassed by Ms Entwistle and/or Mr Pennuto.
Case Callover meetings in February and March 2019
In 2019 Ms Entwistle was concerned about the applicant’s management of the investigation of a taxpayer which was a significant investigation and for which he was responsible. She sent to the applicant an email dated 5 February 2019[78] advising of the matters discussed earlier that day at a meeting. Included in that dot point summary was that they would aim for a formal interview with the taxpayer on Wednesday 20 March and the need to ensure “all active entities related to” the matter, be placed on a watchlist.
[78] Ibid, T12, pages 63 – 64.
There was a case callover meeting on 19 February 2019 between the applicant, Ms Entwistle and Mr Pennuto. The applicant’s evidence was unsatisfactory about the discussions that took place. He said the issues raised by Ms Entwistle had been addressed and that Mr Pennuto said that he had done an excellent job. As I will come to in a moment, I do not accept the applicant’s evidence about that meeting or that Mr Pennuto complimented him about his work.
It was later in February that a request was made for the release of the applicant to another position as an EL1. On 22 February Mr Pennuto raised concern about releasing the applicant given his work on a “high risk case”. On 25 February 2019 Ms Entwistle emailed Mr Pennuto and, amongst other things, advised of the applicant’s role in the investigation, that a formal interview was to occur on 20 March 2019 and that any change would result in the formal notice having to be withdrawn and reissued, and that it would be inefficient and jeopardise the scheduled formal interview to relocate the applicant.[79]
[79] See Exhibit H.
The applicant’s interpretation of those emails was that management said his work was excellent. His interpretation was not accurate. The emails simply made clear that given the work undertaken to date, the relationship with relevant parties and the pending interview on 20 March 2019 it was inefficient to move the applicant to another position.
As Ms Entwistle explained in evidence this would have resulted in the withdrawal of the notice compelling the taxpayer to attend an interview, the appointment of another staff member to take on a significant case which was not appropriate, the reissuing of a notice and setting a new date for the interview.
In an email dated 19 February 2019, Ms Entwistle asked Mr Pennuto to intervene because the applicant did not seem to follow her instructions. He did not put all entities on a watch list.
That meeting occurred at a case callover on 13 March 2019 with the applicant, Ms Entwistle and Mr Pennuto. As I have said, the applicant’s answers about what took place at that meeting were vague. What he did say is that Ms Entwistle sent him an email after the meeting which he said was a witch hunt; that he contacted Mr Pennuto, had a robust conversation with him and that Mr Pennuto told the applicant he did not have to respond to the email and “we will go on from this”.
He reported to Dr Walker in similar terms that “In February 2019, his manager did not raise concerns about his performance. Rather, the director commented on the good work he did.” He gave similar evidence to the Tribunal. That report by the applicant and his evidence was plainly inaccurate.
Insofar as there was discussion about errors in the formal notice both as to the date and the address of the recipient, the applicant said he was advised they were trivial and of no consequence. The evidence of Ms Entwistle and Mr Pennuto was very different. They both regarded the errors as very significant. Ms Entwistle accepted that human error can occur with respect to the incorrect date, but the incorrect addressing of the notice was very significant with the potential for the notice to be withdrawn and reissued causing significant delay. Both managers said the errors were significant.
Insofar as the applicant gave evidence with respect to the failure to put relevant entities on the watchlist which was also discussed at the callover meeting, he said he had done so and saved the ATO $200,000. He did not address his failing, namely the requirement to put related entities on the watchlist. There was no dispute that he put the person who was the subject of the investigation on the watchlist. That was never the point. The issue was his failure to put related entities on the watchlist as he had been directed to do.
The applicant also said that for the purpose of the hearing he was unable to access the ATO SIEBEL records which was the investigation file record. When asked about the relevance of that file, which was an ongoing investigation, he said he wanted the records of the conversations in the February and March case callover which would confirm he put the taxpayer on the watchlist. That was not in dispute. As the matter was a significant ongoing ATO investigation, and because the applicant could not demonstrate that the production of the record went to an issue in dispute or was relevant to the application, and further as he had his contemporaneous notes of his engagement with his managers, no order was made for the production of ATO records.
I do not accept the evidence of the applicant in respect of those callover meetings. I prefer and accept the evidence of Ms Entwistle and Mr Pennuto. The applicant in evidence was incapable of accepting or taking responsibility for his failure to comply with directions from Ms Entwistle by putting related entities on the watchlist, and wrongly sought to trivialise the significance of the errors in the formal notice. The fact that the person under investigation did not take issue with the error was not the point. The potential consequence I accept, was significant and could have resulted in an invalid formal notice and impacted upon the investigation.
I accept that at the case callovers it was also raised with the applicant his failure to provide completed questions to be asked of the person under investigation at the upcoming meeting. The applicant again did not accept the criticism and said that he had provided Ms Entwistle with the questions which he had formulated with the assistance of another member of the ATO. Ms Entwistle accepted that he provided some questions, but the complaint was she that never received final questions formulated by the applicant, including up to the time he took carers leave. The Tribunal accepts Ms Entwistle’s evidence.
I am satisfied that Ms Entwistle and Mr Pennuto raised with the applicant a number of issues at the February and March 2019 case callovers. The applicant’s evidence about those callovers and his attempt to trivialise the significant issues that were raised with him demonstrated that he had a perception of events that was misconceived and that he was incapable of accepting and dealing with issues that gave rise to criticisms of him. I am satisfied that performance issues were reasonably raised in a reasonable manner and that management had justifiable concerns about the applicant’s performance, including the use of technology to complete the formal notices.
Further, I do not accept the applicant’s evidence that Mr Pennuto complimented the applicant on his performance and told him to ignore the email of Ms Entwistle. Ms Entwistle plainly had a number of performance issues that she raised with Mr Pennuto and invited him to address them with the applicant, which he did. I am satisfied that the applicant was not told by Mr Pennuto that his work was excellent. That was not said in email communications explaining why he could not be released. This again is another example of how the applicant dealt with and interpreted events so as to portray himself as without fault and to avoid facing or acknowledging the concerns that were raised with him.
The Referee Report
The applicant took a significant period of carers leave from 2 April 2019 until 6 September 2019, during which time Ms Entwistle sent him details of employment positions available within the ATO. She was obliged to do so as part of her management responsibilities. The applicant applied for an EL1 position in June 2019. He did not tell Ms Entwistle that he had applied for the position, that he was interviewed for that position, or that she was the applicant’s referee. She first became aware of the job application when she received an email communication asking for the referee report.
The applicant’s evidence that he spoke by telephone to Ms Entwistle about providing the referee report, that she said she had done so but would resubmit it, and was critical of Ms Entwistle for not informing him about the poor reference at that time, did not stand up to scrutiny. It was not reconcilable with contents of the Statement and that the communication with her at this time was by email.

When challenged about the accuracy of his evidence that Ms Entwistle was going to send rather than resend the email, he said he needed to consult his work diary. Yet the applicant had not been at work for six months when these events unfolded. When it was put to him the relevant event would not be contained in his work diary, the applicant said he could not recall what happened. He appeared to be making up his evidence to give a good impression of himself, and to direct blame to Ms Entwistle.
Ms Entwistle gave evidence that she did not know the applicant had applied for the position until she received an email from him and that she emailed the applicant that he needed to provide details of the job position, and have the pro forma referee report provided to her for completion. I accept that evidence.
Mr Entwistle completed the referee report taking into account the issues she and Mr Pennuto had with the applicant and as discussed with the applicant in the February and March 2019 case conferences. She said she felt obliged to give an honest report. She reasonably believed that the applicant knew there had been issues with performance. I accept that evidence. It was reasonable for her to provide the referee report and the contents of it were reasonable given the applicant’s work history and performance issues about which he had notice.
The applicant suggested that the referee report was unreasonable given the issues had never been raised in his Compass performance assessment, that all previous assessments have been satisfactory, that he had received his incremental salary payments and that he was shocked by the content of the report. He was critical of Ms Entwistle for failing to complete his Compass performance assessment in December 2018 or by the latest February 2019 as she was obliged to do. He said Ms Entwistle told him she did not have time to do the Compass performance assessment.
The applicant’s criticism about the failure to undertake the Compass performance assessment and the failings of Ms Entwistle in not doing so had no merit. Ms Entwistle explained that the time within which the Compass performance assessment was to be done was determined by the date when a matter was brought into existence. There was no December or February obligatory deadline. The six-monthly performance assessment for the applicant’s matter was due in April 2019.
Ms Entwistle explained that the applicant’s prior assessments have been satisfactory, but issues arose in early 2019 which would have been raised with him in the April 2019 Compass performance assessment, were it not for him going on carers leave. I do not accept that Ms Entwistle told the applicant she did not have time to do the Compass performance assessment. She explained that the applicant knew of the issues as discussed in the February and March case callovers, and that is what she reflected in the referee report.
The applicant reported to his medical practitioners about the referee report. To Dr Gleeson he said the referee had stated the applicant:
…was in fact incapable of completing the role of his current job. This was despite receiving favourable performance appraisals throughout the prior three and a half years. [The applicant] stated he was told concerns regarding his work had been based on the prior six months, which he found difficult to appreciate given he had been away on carers leave for the majority of this time.
It is also noteworthy that the applicant then said it was about this time that he developed symptoms including stomach aches, dry reaching, difficulty sleeping with early morning wakening and feeling tremulous.
To Dr Blakemore, he said he:
…received an adverse report from his manager referring to six months in which his work was not up to standard, and she [Ms Entwistle] had said in her referral that she would not want him in her team.
The applicant said his performance appraisals had been good, that he had received pay increments throughout the relevant time and that when he spoke to his manager (Ms Entwistle) about the report “she claimed that for the last six months he had been performing poorly, but he said that of that six months he was only at work for one month”.
Again, these were examples of the applicant’s failure to give a historically accurate account of what transpired. The referee report did not state that he was incapable of completing the role of his current job. In answer to the question “Given the current circumstances, would you employ and / or work with the candidate again?” Ms Entwistle chose the response “Have some concerns”. Ms Entwistle explained in evidence this was referable to him performing an EL1 position in her team.
Further, the issue was never concern about his work in the prior six months and at a time when he was on carers leave. The concern was his performance approximately six months earlier when he was at the ATO, which had been raised in the case callovers by Ms Entwistle and Mr Pennuto. This was another example of the applicant placing an interpretation on factual events that were most favourable to him, and that sought to exonerate himself of any poor performance issue and divert blame to Ms Entwistle in particular and Mr Pennuto.
The Applicant’s psychological condition and its relationship to his employment
The medical report of Dr Gleeson dated 7 November 2019 said that the applicant’s medical file from 2011 onwards indicated no concerns regarding psychological symptoms. He first reviewed the applicant with regard to psychological symptoms on 9 September 2019. He referred to the referee report, after which the applicant suffered various symptoms including stomach aches, dry reaching, difficulty sleeping with early morning awakening and feeling tremulous.
Dr Gleeson opined that having spoken to the applicant’s treating psychologist, the applicant was suffering from adjustment disorder with features of depression and anxiety, the trigger for which was the referee report.
Dr Gleeson also at this time prepared a GP Mental Health Treatment Plan which made no reference to any prior psychological illness.
Dr Blakemore referred to the applicant’s history of alleged conflict with his managers, which history I have already said was unreliable and inaccurate and which I do not accept. Dr Blakemore reported the applicant saying that the adverse referee report was the last straw.
Dr Blakemore opined that the applicant suffered two discreet prior episodes of workplace stress, reactive to particular circumstances with no indication of relevant pre-existing psychological injury aggravated or exacerbated by the workplace. He opined that the applicant suffered from adjustment disorder with depressed mood, which he continued to suffer at the time of the consultation.
Dr Cobain is not a psychiatrist or psychologist. I agree with the respondent’s submission that Dr Cobain was not an appropriately qualified practitioner to provide a diagnosis in relation to the applicant’s psychological condition. In any event, to the extent that Dr Cobain purports to refer to the applicant’s anxiety and depression, it was referable to his pulmonary embolism and provides no further detail including workplace conflict. I note Dr Cobain agrees with the opinions of Dr Blackmore and Dr Gleeson.
Dr Walker, forensic psychiatrist, in his report of 22 January 2020 said [the Applicant] presents with symptoms but no persistent signs of depressive disorder. His denial of performance problems is not consistent with corroborated information that his manager spoke to him about his performance in 2019. He noted Dr Gleeson described:
[the applicant’s] failure to gain promotion to EL1 in mid-2019 as the “trigger” to him taking sick leave. [The applicant] described the referee report used for that application as “the straw that broke the camel’s back”.[80]
[80] Exhibit L.
Having regard to the evidence generally and the medical reports in particular, I am satisfied that the applicant was not suffering from a psychological illness prior to the commencement of carers leave on 2 April 2019. The applicant made no complaint to his treating medical practitioners of workplace issues or that he suffered symptoms consistent with a psychological condition. The first time he did so was only after he received the referee report. Having regard to the medical evidence, I am satisfied that the applicant suffered from an adjustment disorder with features of depression and anxiety in consequence of the receipt of referee report in September 2019.
Conclusion
Administrative Action
The applicant was an unreliable historian. I do not find that the applicant was dishonest, but I am satisfied that he perceived events incorrectly and interpreted communications with his manager Ms Entwistle and director Mr Pennuto with suspicion and a lack of trust. I am satisfied that his suspicion and mistrust was misplaced. He was unable to accept criticism about his work. His evidence that underplayed the performance issues discussed in the February and March 2019 case callovers was an example of that failure to accept criticism. That he said Mr Pennuto told him to ignore Ms Entwistle’s email and that Mr Pennuto complimented the applicant on his performance saying his work was excellent was plainly wrong. His interpretation of events was misconceived and demonstrated his inability to accept criticism and hence provide a reliable history of past events in the workplace.
Having made those findings of fact, I am reminded of the Personality Assessment Inventory and the finding by the author of the observation about the applicant’s personality and behaviour. In evidence, the applicant was defensive about his shortcomings and did not admit faults. He was critical of his managers in circumstances that were not reasonable which demonstrated mistrust and suspicion that was not founded on a sound factual basis. He recounted a perception of events that indicated his mistrust of others and in particular his managers which was not consistent with the evidence before the Tribunal. My assessment of the applicant accords with the opinions expressed in the Personality Assessment Inventory.
I am satisfied that in 2017 the applicant had issues with the Early Intervention Assessment and visual assessment, but those assessments requested by management were appropriate given the applicant’s health issues at the time. His concern about undertaking those assessments, and in particular the visual assessment, were a consequence of his suspicion and mistrust of management and not a consequence of unreasonable administrative action.
I am satisfied that Ms Entwistle arranged a meeting with the applicant and others to address concerns raised by the applicant and thereafter the working relationship between the applicant and his manager and director was satisfactory with no ongoing conflict between them.
The satisfactory Compass performance reviews, his incremental salary increase and the fact that he was given in 2018 the responsibility of leading a significant ATO investigation, support the fact of the sound working relationship Ms Entwistle enjoyed with the applicant and that he was well regarded as an APS6 officer capable of undertaking a responsible position in a major investigation.
Even when Ms Entwistle and Mr Pennuto raised concerns with the applicant about work performance in February and March 2019, no psychological symptoms were complained of by the applicant and I am satisfied that when he went on carers leave on 2 April 2019 the applicant was not suffering from a psychological condition.
Ms Entwistle forwarded to the applicant details of position vacancies and the applicant applied for an EL1 position but did not inform Ms Entwistle or Mr Pennuto of that fact, nor that he nominated Ms Entwistle as his referee. The fact that he nominated Ms Entwistle as a referee is further evidence that there was no ongoing issue between she and the applicant at that time.
Given the performance issues discussed with the applicant in the case callovers in February and March 2019, Ms Entwistle was properly entitled to believe the applicant was aware of those performance issues. Her referee report was an honest report about the applicant which she was obliged to provide. Given the circumstances in which the referee report was provided by Ms Entwistle, I am satisfied that the provision of the referee report was reasonable administrative action performed in a reasonable manner.
Ms Entwistle was not obliged to engage with the applicant before providing the report and the applicant was given the opportunity to respond to that report after it was received.
I am satisfied that following receipt of the referee report the applicant suffered an ailment as defined by the SRC Act and that the ailment was contributed to, to a significant degree, by his employment with the ATO, namely the provision of the referee report. However, I am satisfied that the claim for compensation is excluded by virtue of the operation of s 5A of the SRC Act because the ailment was the result of reasonable administrative action undertaken in a reasonable manner.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

……………………[SGND]………………………

Associate

Date: 30 July 2021

Date of hearing:
8 and 9 February 2021

Advocate for the applicant:

Advocate for the respondent:

Self-represented

Kate Slack, Higgins Chambers