FEDERAL COURT OF AUSTRALIA

Golds v Comcare [1999] FCA 1481

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal to affirm the disallowance of a claim for compensation for work-related stress - discussion and consideration of “failure to obtain a promotion” as excluded in the definition of “injury” in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 14

Trewin v Comcare (1998) 84 FCR 171 Foll

Comcare v Mooi (1996) 69 FCR 439 Ex

KERRY ANN GOLDS v COMCARE

QG143 OF 1997

COOPER J

BRISBANE

28 OCTOBER 1999

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

MISS WJF PURCELL, SENIOR MEMBER, DR JB MORLEY, MEMBER,

AND CAPTAIN E T KEANE, MEMBER

THE COURT ORDERS THAT:

1.         The application to extend time to appeal from the decision of the Administrative Appeals Tribunal is dismissed.

2.         The substantive application is dismissed.

3.         The applicant pay the respondent’s costs of and incidental to the applications, including reserved costs, if any, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

MISS WJF PURCELL, SENIOR MEMBER, DR JB MORLEY, MEMBER,

AND CAPTAIN ET KEANE, MEMBER

REASONS FOR JUDGMENT

1                     The applicant made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).  The claim was for work-related stress which she claimed was suffered by her during the course of her employment with the Department of Employment, Education, Training and Youth Affairs.  The claim was disallowed by an independent review officer.  The applicant sought review of the disallowance by the Administrative Appeals Tribunal (“the AAT”).  On 12 June 1997 the AAT affirmed the decision to disallow the claim.

2                     On 5 August 1997 the applicant applied for an extension of time within which to appeal from the decision of the AAT under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  On 8 October 1997 it was ordered that the applicant file and serve a notice of appeal by 4.00 pm 24 October 1997 and that the question of extension should be stood over to be heard with the substantive arguments on appeal.  The notice of appeal was not filed until 12 November 1997.

3                     The respondent, while not consenting to the extension, advised that it could not point to any prejudice to it if the extension was granted and did not wish to be heard further on the matter.  In my view, if the appeal has merit, then the application for an extension ought to be granted.  I turn to the substantive grounds of appeal.

4                     On 27 January 1993 the applicant joined the Commonwealth Employment Service, having successfully sat the entrance examination as an ASO1.  In December 1993 the applicant accepted a temporary transfer to the Nerang office, acting as an ASO3.  On 7 November 1994 the applicant went on sick leave and on 1 December 1994 she lodged a claim for compensation for “work-related” stress.  The applicant’s claim for compensation was under s 14 of the Act.

5                     The applicant did return to work on 21, 22 and 23 December 1994 and 5 January 1995 on a full time basis.  She then started a graduated work program from 8 January 1995 for four hours a day, three days per week. 

6                     On 16 January 1995 the applicant’s claim for compensation for the period 7 November to 20 December 1994 was disallowed.  The delegate was not convinced that the psychological conditions exhibited by the applicant were probably caused by workplace factors.  On 13 February 1995 the applicant requested a reconsideration of the decision. 

7                     By April 1995 the applicant had progressed to six hours work per day.  However, after two weeks recreational leave, on 26 April 1995 the applicant again left on sick leave for ten months.

8                     On 16 May 1995 the Independent Review Officer affirmed the decision to disallow the claim for compensation for the period 7 November to 20 December 1994.  The applicant appealed to the AAT.

9                     Before the AAT the applicant submitted that she suffered a depressive illness due, if not wholly, then to a material degree, to work stressors and her working environment.  She claimed her depressive illness left her unfit to work at various times.  The respondent submitted that the cause of the applicant’s concerns was her inability to gain a promotion to an ASO3 position through the Training Employment Officer (“TEO”) selection process or the order of merit process.

10                  The AAT found that the applicant was “bitterly disappointed” at not being promoted to an ASO3, with the TEO program further enraging her and giving her a focus for her anger.  The AAT held that if any work factors were contributing to the applicant’s absence from work, they were associated with her failure to secure a promotion.  These factors are specifically excluded from the definition of “injury” in s 4 of the Act.  The AAT went on to find that the applicant was experiencing personal difficulties in her life, which she transposed to work problems to vindicate her work absence.  Therefore the AAT held that the applicant’s injury did not arise out of, or in the course of, her employment.

11                  The grounds of the applicant’s appeal are :

“That the Tribunal’s finding that, if any work factors were relevant to the Applicant’s absence from work they related to her failure to obtain a promotion was wrong in law in that :

(i)        such a finding is inconsistent with the evidence which the Tribunal specifically accepted;

(ii)       the Tribunal misconceived the meaning of the expression ‘failure by the employee to obtain a promotion’ contained in the definition of ‘injury’ in section 4(1) of the Act.”

12                  The AAT made the following finding as to the evidence of the applicant :

“12.     We had the opportunity to observe the applicant as she gave her testimony.  She impressed us as a confident, forthright, articulate lady.  Her written statements are well reasoned and literate, and we did not feel that she was a person too shy or reticent to ask for her supervisors for help if it was required.  We consider that she overstated deliberately, the difficulties she encountered in her use of the computer, and in understanding the programs for which the CES was responsible.  We think that she glossed over, or minimised, the effects upon her of other influences and pressures which might have existed at the time.  She was clearly angry and frustrated by the changes that had overtaken the Public Service, and the difference between the career path promotion she had anticipated would occur as a matter of course and the reality of the new system, which she feared would not guarantee immediate financial and professional security.  The applicant expressed her anger and frustration at ‘the system’ soon after she commenced work, but reject her evidence that alleged problems with the computer system, uncertainty as to the probility [sic] of promotion, and the fear of loss of employment, persisted for nearly two years, and led to her taking sick leave in November 1994 and again, in April 1995.  This does not mean that we reject all of the applicant’s evidence;  but that we look to other more acceptable testimony to corroborate her evidence, and to support our findings of fact in important areas.”

13                  The AAT accepted the evidence of Roger Wilson as impressive and truthful.  The AAT also accepted the evidence of Robert Robbins, Judith McConville, Lesa King, Kerry Lamerton and Ann McLean.  As to the medical evidence, the AAT, where there was conflict in the medical evidence, preferred the views of Dr Jill Reddan and Keryn Stirling.

14                  The AAT made specific findings as to how it used the evidence of each of these witnesses and which parts of it the AAT regarded as relevant to the issues for its deliberations.  It is important to set out in full the reasons of the AAT on this issue, because the approach of the applicant has been to attempt to draw a series of propositions from the evidence of these witnesses and contend that, by accepting the witnesses as truthful, the AAT must have found each of the propositions as a fact.

15                  As to the evidence of Mr Wilson, the AAT said :

“24.     Mr Wilson who works now at the Stones Corner CES, described the applicant as a happy, strong, forthright lady, who was very pleasant company and very outgoing.  He gave evidence that in his daily contact with the applicant, as they travelled between their respective homes and Palm Beach, they would discuss matters that arose in the workplace.  All the new recruits regarded their initial three days ‘on the job’ training as inadequate, and complained that there was no specific computer training.  Mr Wilson, however, regarded the applicant as a good performer, who was much more advanced in her computer skills and general expertise than was he.  He said that the applicant made no subsequent complaint, at any time, regarding any problems with the computer, or an inability to understand the computer programs.

25.       Mr Wilson said in evidence that the applicant complained vehemently about the TEO program.  When she was informed that she had not been selected for the program, she became withdrawn, unhappy, morose and despondent.  She talked often about resigning from the Commonwealth, and Mr Wilson recalled pleading with her not to resign.  He said that other officers were disgruntled with the TEO program, but unlike the others, the applicant persisted with her complaints, and became more and more withdrawn.  Mr Wilson was on recreation leave when the applicant transferred to Nerang, and they have not worked together since November/December 1993.  We accept Mr Wilson’s evidence.”

16                  As to the evidence of Ms McConville, the AAT said :

“27.     Ms McConville, the Manager at Palm Beach in 1993, who transferred to Nerang in June 1994, has observed the applicant’s work performance in both offices, and gave evidence that the applicant was a good mid-range officer, who was certainly not under-performing.  She used the computer system daily, and never complained to Ms McConville about difficulties with the computer, nor the work itself, although she complained regularly and vehemently that she should have been promoted, permanently, to an ASO3 position;  and that she was disenchanted with her career path.  It was a constant complaint that promotion had not come as quickly as the applicant had anticipated.

28.       Ms McConville said in evidence that the applicant would become very emotional when setting out her concerns about the TEO program, and its effect on her chances of promotion.  To allay the applicant’s concern and that of the other new recruits, Ms McConville explained to all staff, on a number of occasions, that they would not lose their positions in the Public Service.  She arranged also for the Regional Manager, Mr Booth, to visit Palm Beach in mid-1993 and assure the staff members that they were secure in their employment, and would not be transferred outside the Gold Coast area.  This meeting appeared to resolve the matter as far as the staff members were concerned, as none of the new recruits (including the applicant) raised the matter again with Ms McConville.  We accept Ms McConville’s evidence.”

17                  As to the evidence of Ms King, the AAT said :

“29.     Ms King, who was the applicant’s immediate supervisor at Palm Beach, gave evidence that the applicant had good keyboard skills, her work was accurate with very few errors.  Ms King monitored and reported on the applicant’s progress as a new recruit, and considered that she had a good understanding of the office procedures and processes.  Ms King does not recall the applicant complaining at any time that she had problems with the computer, or the computer programs.  She recalls one occasion only, when the applicant sought assistance because she had problems with a job seeker’s record.  She said that she had seen the applicant upset on about three occasions, but the applicant gave no reason for her distress.  On one of those occasions, Ms King said she followed the applicant from the work area, and asked why she was upset, but the applicant did not volunteer an explanation.  As to the applicant’s placement in the merit rankings for the TEO program, Ms King said that the applicant’s work was good, the other recruits were better, and some had prior experience at a higher level.  The rating did not prevent the applicant from performing higher duties on a rotation basis with the others.  The new recruits were of a very high standard and the applicant was a competent officer.  We accept Ms King’s evidence.”

18                  As to the evidence of Ms Lamerton, the AAT said :

“30.     Ms Lamerton, Site Manager at Nerang, gave evidence that the applicant was paid as an ASO3 at all times, whilst she was at Nerang.  She recalled that two other staff members lost their higher duties eligibility, as a result of an internal assessment.  Ms Lamerton regarded the applicant as efficient;  she got on well with other staff members, used the computer system daily, as part of her essential duties, and never complained of experiencing difficulties.  The applicant’s duties were affected only minimally by Working Nation, which was to bring about changes in eligibility for benefits and programs.  Ms Lamerton does not recall the applicant raising any problems in relation to those changes.

31.       Ms Lamerton said in evidence that the applicant had often been tearful and emotional during the time she was at Nerang, and continued to see the counsellor at Palm Beach.  Ms Lamerton understood that the applicant might have personal problems, but never discussed those with the applicant.  On two occasions in December 1994, Ms Lamerton offered the applicant a transfer to Tweed Heads, but she refused saying, in effect, that she would rather stress her car than herself.  We accept Ms Lamerton’s evidence.”

19                  As to the evidence of Ms McLean, the AAT said :

“32.     Ms McLean, the applicant’s supervisor at Nerang, gave evidence that the applicant did not complain of difficulties with the computer.  As to the alleged ‘raise the fares’ incident, Ms McLean does not recall any such conversation taking place and said that these calculations are quite complicated, and it was not her practice to leave an inexperienced officer without assistance.  Ms McLean said that the applicant had requested recreation leave from April 1995 to May 1995, but her request was refused because of staffing levels.  The applicant was very upset that she was required to return to work on 26 April 1994.  She did return to work on the day after the public holiday, but proceeded on sick leave immediately thereafter.  We accept Ms McLean’s evidence.”

20                  The AAT set out in detail a report of Ms Stirling, a psychologist, given in early January 1995.  The AAT continued :

“34.     Ms Stirling said in evidence, that the applicant’s major concerns related to financial matters.  Although the applicant had been on higher duties on an almost constant basis since her recruitment, Ms Stirling said that she was surprised that 18 months later the applicant was continuing to complain of employment and financial insecurity.  We accept Ms Stirling’s evidence.”

21                  As to Dr Reddan’s evidence, the AAT said :

“37.     Dr Reddan, psychiatrist, who interviewed the applicant at the request of Comcare on 6 December 1995, gave evidence that in her opinion it is likely that the applicant developed an episode of major depression of mild to moderate degree over 1994 which had been treated successfully.  The depression arose from a complex interplay of developmental factors (resulting in personality vulnerabilities) non work place loss and stressors, and work place factors.  Dr Reddan noted that the reports of Ms Stirling and Mr Brook, and the clinical notes of her treating medical practitioners referred to significant stressors occurring in her life, which she did not discuss with Dr Reddan.  The applicant had suffered considerable back pain since 1993.  She had been through considerable financial strain, was in conflict with the local Council, and there were difficulties in the family circumstances.  Dr Redden [sic] noted that the applicant attributed her conditional totally to her work place.  Dr Reddan recorded the relevant work factors as greater than usual work loads, constant administrative change, the order of selection processes, a feeling of being inadequately trained and uncertainty as to permanency of employment.

38.       Dr Reddan said in evidence that a variety of factors would have led to the development of the applicant’s depression.  At interview she did not allude to any outside factors at all.  Dr Reddan considered that the applicant could have been blaming her work for problems which developed over a period of time, from a number of causes;  but Dr Reddan did not have a complete history from the applicant and would not speculate as to the most likely causes of the applicant’s condition.  We accept Dr Reddan’s evidence.”

22                  The conclusions of the AAT drawn from the evidence which it accepted, it stated in its reasons in the following terms :

“39.     We have examined the whole of the evidence carefully and in detail, and we have taken into account the parties’ submissions.  It is clear that the applicant was bitterly disappointed that she wasn’t promoted permanently to an ASO3 position soon after her recruitment in January 1993.  Her disappointment coincided with the introduction of the TEO recruitment program which became then a focus for her anger.  It is clear also on the applicant’s evidence and that of Ms Forrester and Mr Wilson that the initial training provided to new recruits was perceived by them as deficient in some respects.  The TEO program and restructuring within the CES caused understandable concern to the recruits who were on probation.  We accept Ms McConville’s evidence that she arranged for the Regional Manager to visit Palm Beach in mid 1993 to speak to the recruits and to reassure them.  The applicant allegedly persisted for a further 18 months in a mistaken belief that she could lose her employment.  She became frustrated and angry when she realised that promotion within the system would be slower and less predictable than she had anticipated.

40.       The term ‘injury’ is defined in section 4 of the Act, and excludes an injury, disease on [sic] aggravation suffered as a result of failure to obtain a promotion, transfer or benefit in connection with employment.

41.       If any work factors were relevant to the applicant’s absence from work from November 1994, we consider that they are related to her failure to obtain a promotion and are excluded pursuant to section 4 of the Act.  [sic]n our view also, the applicant was experiencing problems in her personal life during 1994, but chose to focus upon perceived problems in the work place to justify her absence from work.  We are satisfied on the evidence that any injury the applicant suffered did not arise out of, or in the course of, her employment with the Department of Employment, Education, Training and Youth Affairs.”

23                  In my view the AAT, in its treatment of each of the lay witnesses as set out above, correctly summarised the effect of the evidence given, and the findings it made by the acceptance of the evidence as summarised, were available findings on that evidence.

24                  It was submitted on behalf of the applicant that the evidence of Dr Reddan, as contained in a report dated 8 December 1995 and in her oral evidence in the AAT, required that the AAT find as a fact, that the factors which impacted on the development of the applicant’s depressive condition were :

(i)         greater than usual workloads;

(ii)        constant administrative change;

(iii)       the order of selection processes;

(iv)       a feeling of being inadequately trained;

(v)        uncertainty in relation to permanency of employment;

(vi)       concerns about security of job tenure;

(vii)      intensive competition for positions;

(viii)      being unfairly judged in an order of merit selection process.

25                  In my view the evidence of Dr Reddan did not require such a finding.  The report of Dr Reddan contains a history of what the applicant claimed were the workplace stressors.  The history, so far as is relevant, states :

“... She had joined the CES in January 1993.  Kerry reported that over the time she was working for the CES the procedures frequently changed.  She stated that the work load was very high which was made worse by the fact that the office had a high rate of sick leave and was very under staffed.  She stated for example that she would be dealing with employers on the phone whilst also trying to answer other calls on the switch.  She stated that she could never get to her work and felt under constant time pressure.  Her anxiety levels increased and she suffered panic attacks.  She stated that in addition she lived quite a distance from her work place and was suffering from constant pain in her back.  She had put on weight and she began to feel pervasively tired, was frequently bursting into tears and her concentration deteriorated.  She stated in particular that she was unable to remember driving home from work.  She stated that because of her poor concentration she was having to constantly re-check her work.  She noticed that her output at work gradually got less.  She stated that she spoke about this issue to her supervisor who reassured her.  She reported that she kept on asking for help at work in particular with the computer system one part of which she couldn’t understand.  She stated that the explanations given were unsatisfactory in that people spoke in terms of initials and vague generalities.  She stated that she needed someone to sit down with her and actually go through the procedures on the computer but no one ever got around to showing her how to do it because of the work load in the office.  She consulted a psychologist in lat 1993.  She stated that she was recruited under one system to the CES but this then rapidly changed causing a great deal of uncertainty in both herself and co-workers.  She stated that the office became very anxiety driven.  She had been employed as an ASO1 but had acted as an ASO3 on many occasions.  She stated that there was intense competition in the office for positions.  She stated that the training sessions in the CES were information sessions and really did not assist with training at all.  She had consulted her local doctor who stated that he thought she was suffering from a stress related illness, something which she states she hadn’t considered herself.  When however, her lability of mood increased she consulted her doctor again.  He suggested that she take three to four weeks off work and prescribed antidepressants and multi vitamins.  She stated that gradually her symptoms increased however.  She had put on five stone in weight but couldn’t be bothered cooking.  Also she couldn’t be bothered with house work or washing and was having to write notes to herself to have showers or wash her hair.  She stated that her friends began to comment on her general decline.

Kerry stated that she began to believe that she had Alzheimer’s disease because of her poor memory, motivation, concentration and low work output.  She stated that she lost confidence in herself and felt ashamed so did not confide her fears in others.  She also was concerned that she may not be pulling her weight in the office.  She stated that she feels she has reasonably high expectations of herself but feels that this is reasonable and believes that she has never been excessive in her expectations of herself.

Kerry stated that she got on well with her co-workers and supervisors and did not have any particular conflicts or difficulties with them.  I note in some accompanying material that there are references to ex-worker antagonism.  Kerry did not detail any other stressors to me.”

26                  Dr Reddan identified the problem of causation of the applicant’s depression.  She said :

“The difficulty in this particular case is elucidating the factors which caused Kerry to develop major depression and separating out those factors which were work related and those which weren’t.  I note from Ms Stirling’s and Mr Brook’s reports and from the medical notes that there were significant stressors occurring in Kerry’s life which she did not elaborate to me.  For example I note that she has been through considerable financial strain, was in conflict with the local Council and there were difficulties in her family circumstances the nature of which are unclear.  All of these stressors were related to the time during which Kerry first began having symptoms.  Kerry now attributes her condition totally to her work place. ..... Kerry perceived her own position in the Commonwealth Employment Service to be precarious and likely to change at a moment’s notice.  Kerry perceives her work place to have been in a constant state of administrative change with inadequate staff training and excessive work loads.  It is a matter for others to determine whether her concerns about the permanency of her employment and her feeling that she was judged unfairly in the order of merit selection process are stressors that are part of being employed or not.  Her perception that there was inadequate training and assistance particularly in relation to computer work does appear to have been a contributing factor to her increasing anxiety and distress.”

The conclusion of Dr Reddan is :

“Thus in summary it is my opinion that Kerry  Golds developed an episode of major depression of mild to moderate degree which has now been successfully treated.  This appears to have arise out of a complex interplay of developmental factors resulting in personality vulnerabilities, non work place losses and stressors and the particular meaning of work place factors to Kerry.  The particular work place factors which appear to have been relevant include greater than usual work loads, constant administrative change, order of selection processes a feeling of being inadequately trained and an uncertainty in relation to her permanency of employment.”

27                  What is apparent from Dr Reddan’s report is that stressors are those chosen by the applicant alone, and their contribution, if any, to the depression is the particular meaning of those work place factors to the applicant herself.  Dr Reddan expresses no opinion as to whether the work place stressors the applicant claimed actually existed in fact and what, if any, part those factors played in the development of the applicant’s condition, beyond the particular meaning of those factors to her.

28                  In her evidence in chief, Dr Reddan repeated the history which she had been given by the applicant and which is recorded in her report.  Under cross-examination she gave the following evidence :

“MS MAGEE:  In addition to the work factors which you have just mentioned, there is also, is there not, the fact that she felt she had been unfairly judged in an order of merit selection process;  do you recall that?---Yes.  She didn’t emphasise that, that didn’t seem - the issue was the way that I understood that to be important to her was in terms of her concern was that permanency or security of employment was related to the level she would be at.

Yes?---And therefore she’d been concerned about that issue, linking that with the security of employment.  Now, that was my understanding at that time.  I’m not certain whether that’s the way she’d perceived it when the order of merit selection process had gone on, but that was the way she presented it - - -

Was it part and parcel of her concern about security of tenure?---It seemed to be, the way I understood it [sic] be.

Yes.  Now, all of the work practice that you have elucidated, in combination they had an impact on the development of her disorder, is that your opinion?---Yes, I didn’t have sufficient information to make comment much on other factors, therefore, I think in terms of the causation, my opinion is less reliable than in terms of the condition itself.

Yes.  But you still believe that these work factors that you have elucidated, a combination of those had an impact on the development of the disorder?---Yes, I think they had an impact, yes.

Yes.  Now, you were asked a question about whether changes in procedures and forms when she was working in the vacancy section would have been likely to produce a disorder given the sort of work that she had done before.  Would you agree that you cannot take that in isolation;  that you need to look at all of the other work factors as well?---No, you can’t take it in isolation.  I would agree with that, but you can’t take the work factors in isolation either, you’ve got to take all the factors.  But no, one thing in and of itself - - -

And to look at the impact of that, you would need to look at it in the context of how she was feeling at the time about her job security?---You may or may not.  It may or may not be relevant, I can’t be more specific.  I’m afraid, than that.

.....

All right.  Given the work stressors which Ms Golds perceived, would that have an impact on her home loan?---Yes, I would think it would.  These things always have some spill-over in life.”

29                  It was submitted by counsel for the applicant that this evidence, if accepted as it was, required a finding that the work factors elucidated by the witness had an impact on the development of the disorder.   In my view this does not follow, because the opinion expressed by Dr Reddan in her oral evidence, in context goes no further than that which she expressed in her report.  This appears from other evidence which she gave.  She said in response to questioning from the medical member of the AAT :

“Do you think that there were anything - any features in her background that might have predisposed her to quickly having over-interpreted as a form of misconception certain events?  You referred to her lack of sense of security?---I think - yes, that’s one that she may take changes in the workplace as meaning  more than they do.  That, you know, they imminently going to be, sort of, kicked out.  And often too when people have a fairly vulnerable or fragile self esteem, things like lack of promotion, they have more difficulty coming back from that, so to speak.  If there are problems with the order of merit selection they’ll often see it as more than the average, say as a sort of victimisation or a sign or confirmation that they’re not good enough  Something along those lines.  But those - - -

Especially if you did not match up to her own self expectations?---Yes, yes.  Or sometimes it goes the other way, that it confirms a deep seated sense of insecurity or inferiority.  It could actually be the other way too.  And some people often who feel somewhat fragile will go through life, in a way, over compensating for that.  And then the loss or the threatened loss of, say, promotion etcetera can be more devastating to them, it can be more of a narcissistic injury than it is to the average person.  This is all speculation, but it’s - these are patterns one commonly sees.”

In re-examination Dr Reddan gave the following evidence :

“You said in answer to a question from my learned friend that the work factors had an impact on the development of the condition.  Is that opinion subject to the proviso that what you were told was correct?---Yes, or rather the word would be ‘complete’ rather than ‘correct’.

Yes.  The last matter that you raised when asked a question from a member of the panel in relation to the work factors and the home factors the inter-relationship of them, is it the case that because of problems at home, she could be blaming the work problems for - or blaming work for problems that were not really caused by work?---Oh yes, she may be - one commonly sees that people will decide it’s one factor and ignore others, and there may be a variety of reasons why that happens.  There’s a sort of - and particularly over time, particularly in this context there is a narrowing of the cognitive repertoire, you might say, in terms of attribution of blame.

And that you saw her in December last year, and this had been going on for some time at that stage?---Yes, I saw her in December last year, yes.

And by the time you saw her, she was blaming everything on work?---Yes.  She didn’t allude to any other stressors at all.”

30                  There are two aspects of the evidence of Dr Reddan which are against the submission made on behalf of the applicant as to the requirement for a finding that the work place factors impacted on the applicant’s condition.  The first is, that to form such a view, the applicant must have given a complete history which contained all the matters which were stressors in the applicant’s life.  This the applicant had not done, and the AAT so found.  The second was that, for the purpose of identifying the factors which impacted on the development of the condition, it was from a medical point of view the applicant’s perception of the work place elements which was relevant rather than the reality of whether there were in truth factors in the work place which validated the applicant’s perceptions.  Importantly, it was possible that the applicant was focusing on aspects in the work place as the stressors impacting on her condition, when in truth the real stressors giving rise to the condition were not work place related.  Dr Reddan was unable to express any reliable opinion on this question, and the AAT so found.

31                  The findings of fact made by the AAT were totally consistent with the evidence of Dr Reddan, and having regard to her evidence and the evidence of other witnesses which the AAT accepted, were open to the AAT if it chose to do so.

32                  There are two parts to the findings of the AAT.  The first and primary finding is that the depression of the applicant was not a disease that was contributed to in a material degree by the applicant’s employment with the Commonwealth.  That is, that her depressive illness was not an “injury” within the meaning of that term as defined by s 4(1) of the Act.  The second and alternative finding is that, if there was any work factor, then it related to her failure to obtain a promotion to an ASO3 position.  If that finding was open on the whole of the evidence, which in my view it was, that finding would exclude that circumstance as a relevant cause or contributor to an injury as defined by s 4 of the Act.

33                  The applicant does not make out under the first ground in her application any reviewable error.

34                  The second ground for review only arises in relation to the alternative finding of the AAT.  The absence of a work based element in the primary finding makes the exception contained in the definition of “injury” in s 4 of the Act irrelevant.

35                  The AAT made two findings which are relevant to the second ground for review.  It found that :

(a)        “... the applicant was bitterly disappointed that she was not promoted permanently to an ASO3 position soon after her recruitment in January 1993.  Her disappointment coincided with the introduction of the TEO recruitment program which became the focus of her anger. ...”

(b)        “... She became frustrated and angry when she realised that promotion within the system would be slower and less predictable than she had anticipated.”

36                  These findings were based on the evidence of Mr Wilson, and particularly the evidence of Ms McConville.  The work factor with which these findings deal is the failure of the applicant to be promoted from her position as an ASO1 to a permanent position within the Public Service with the category of ASO3.  Accordingly, when the AAT dealt with the possible contribution of work factors to the applicant’s absence from work in November 1994, it was dealing with the work factors the subject of the above findings, and no other work factors.

37                  It was submitted by counsel for the applicant that the applicant’s failure to obtain TEO accreditation was not a failure to obtain a promotion within the meaning of the definition of “injury”, because accreditation did not necessarily involve a promotion.  It was further submitted that concerns about the promotional system are distinct from a failure to obtain a promotion, a distinction which it was submitted the AAT was required to make.  On that basis, the concerns of the applicant related to the system and were not excluded from the definition of “injury”.

38                  In support of these submissions, reliance was had on the decision of Drummond J in Comcare v Mooi (1996) 69 FCR 439.  His Honour held (at 448) :

“I am not at all sure that if a worker is employed in circumstances in which his employer allows a state of uncertainty to exist as to whether the worker’s employment, which is longstanding or which the worker can fairly regard as permanent, might nevertheless be terminated and if the employee develops a mental illness as a result of that uncertainty, that illness could not be said to have been ‘contributed to in a material degree by the employee’s employment’.  Even if the Tribunal was in error in having regard to the other three factors on which the respondent relied, it may well have been entitled to find that the uncertainty to which the applicant was exposed was capable, by itself, of amounting to the circumstance of his employment that contributed to the condition in respect of which the respondent claimed compensation. ...”.

39                  The circumstance which was referred to by Drummond J was not the circumstance in the present case.  Nor can it be said that his Honour’s view supports the drawing of the distinction contended for by the applicant.  It is in each case a matter of properly characterising the nature of the concern which is a question of fact and not one of semantics.  This appears from his Honour’s treatment of the other alleged contributing factors of which Mr Mooi complained.  His Honour said (at 447 - 448) :

“The respondent complained of his skills and capacities not being fully utilised by his employer.  As I understand it, there is no suggestion that the respondent did not have the opportunity to perform the range of duties allocated to his position, but rather that he was not given the opportunity to demonstrate his fitness for, and so was not offered, a better paid position than that in which he was employed.  The respondent also complained about the lack of training given to him.  But this, too, appears not to have been a complaint that he was denied training necessary to enable him to perform the duties of his position, but rather that he was deprived of the opportunity of training that would have fitted him for a higher position.  His third complaint was the refusal of his supervisors to approve his application for payment of a higher duties allowance.  If the respondent did suffer from what could be called a ‘disease’ and if that resulted from these three factors, that disease seems to me to fall within the description of a disease resulting from ‘failure by the employee to obtain a promotion ... or benefit in connection with his ... employment’ within the meaning of that expression in the definition of ‘injury’ in the Act. ...”

40                  The finding in the present case was not that the applicant had concerns about the promotional system.  It was that she was bitterly disappointed that she was not promoted to an ASO3 position and that she was frustrated and angry because her promotion from an ASO1 to an ASO3 position was slower and less predictable then she had anticipated.

41                  In Trewin v Comcare (1998) 84 FCR 171, Heerey J said (at 177)

“Moreover the concept of ‘failure ... to obtain a promotion, transfer or benefit in connection with ... employment’ has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems.  Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations.  I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.”

42                  I agree with these observations.  The phrase “failure ... to obtain a promotion, transfer or benefit in connection with ... employment” must be read in the context of Commonwealth employment, which involves the creation of positions within a classified hierarchy.  A promotion in this context means no more than to advance to a higher position in the bureaucratic structure.  It is not necessary that the phrase be limited to a failure to be promoted to a specific position for which the person was an applicant.  The legislative intention identified by Heerey J both permits and requires that disappointed hopes of advancement by promotion within the system which cause or contribute to a disease or illness be excluded as circumstances giving rise to compensable injury.

43                  The AAT made no error of law in the construction of the phrase “failure ... to obtain a promotion ...” in the definition of “injury” in s 4(1) of the Act and no reviewable error has been made out under the second ground.

44                  The substantive application will be dismissed.

45                  It follows that the application to extend time will also be dismissed.

46                  Costs should follow the event.

Associate:

Dated:              28 October 1999