FEDERAL COURT OF AUSTRALIA
Telstra Corporation Limited v Hunter [2016] FCA 318
ORDERS
TELSTRA CORPORATIONS LIMITED (ABN 33 051 775 556) Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
The application filed 11 May 2015 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 In this application filed 11 May 2015 Telstra Corporation Ltd (Telstra) appeals against the whole of a decision of the Administrative Appeals Tribunal (the Tribunal) of 13 April 2015 (Maurice Hunter v Telstra Corporation [2015] AATA 218), wherein the Tribunal found that the respondent Mr Hunter was entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Before turning to the current application it is helpful to examine the background facts and the decision of the Tribunal.
Background
2 Mr Hunter, was born in 1952 and commenced employment with Telstra on 19 September 1979. He became a “product implementer” or project manager with Telstra in or about 1990. As a project manager Mr Hunter was generally responsible for 10 to 15 projects concurrently. The Tribunal accepted that this work could be mentally demanding.
3 On 14 April 2010 Mr Hunter attended his general practitioner, Dr Springfield, and reported that he was suffering from stress at work.
4 On 24 April 2010 Mr Hunter was the subject of a Performance Improvement and Conduct Meeting (PICM) at Telstra to review a number of performance issues with his work performance.
5 On 18 July 2010 Mr Hunter and his supervisor met to discuss Mr Hunter’s sick leave associated with sleep problems and difficulties staying awake, and on-going performance issues raised at the PICM.
6 On 16 September 2010 Dr Sam Yang provided a fitness for duty assessment of Mr Hunter, and diagnosed him as having hypertension and sleep apnoea with onset from May 2010.
7 On 2 November 2011 Mr Hunter participated in a further PICM to review his performance rating for the previous year.
8 On 15 November 2011 Mr Hunter attended general practitioner Dr Springfield, who noted that Mr Hunter was suffering “considerable stress at work”. Dr Springfield diagnosed Mr Hunter as suffering depression, and prescribed antidepressant medication. Dr Springfield also certified Mr Hunter as unfit for work for the following periods:
16 November 2011 - 4 December 2011
2 December 2011 - 11 December 2011
28 December 2012 - 8 January 2012
6 January 2012 - 15 January 2012.
9 On 8 March 2012 Mr Hunter met with his manager at Telstra, Ms Bronwyn Stephens, to prepare a support plan for Mr Hunter on the basis that he was not meeting Telstra’s performance expectations.
10 Mr Hunter subsequently met with Ms Stephens on 12 April 2012 to discuss his performance on the basis that, in Telstra’s view, he had failed to meet the performance objectives he had agreed during the meeting of 8 March 2012. On the same day Telstra issued Mr Hunter with a written warning about his work performance.
11 On 17 April 2012 Mr Hunter attended Dr Springfield and reported issues with work stress. Dr Springfield certified Mr Hunter as unfit for work for the period 17 April 2012 – 28 April 2012.
12 On 16 July 2012 Dr Yang provided a Fitness for Duties Assessment of Mr Hunter and assessed him as suffering a long standing depressive mood disorder which was being affected by work stressors including performance management requirements.
13 On 20 July 2012 Mr Hunter again met with Ms Stephens. After the meeting Mr Hunter was issued with a final written warning for failing to meet his performance objectives.
14 On 9 August 2012 Mr Hunter attended Dr Springfield, who noted that he was suffering from stress and issues with depression. Dr Springfield subsequently certified Mr Hunter as unfit for work for the following periods:
11 September 2012 - 13 September 2012
8 October 2012 - 20 October 2012
8 November 2012 - 8 December 2012.
15 On 18 February 2013 Mr Hunter met with Ms Stephens. At that meeting issues with his performance were discussed.
16 On 27 February 2013 Mr Hunter attended on Dr Springfield and reported that work was too stressful.
17 Mr Hunter subsequently attended a psychiatrist, Dr Adam Burgess, who certified that Mr Hunter was unfit for work for the periods 5 March 2013 - 14 March 2013 and 28 March 2013 - 19 April 2013. Dr Burgess diagnosed Mr Hunter with a “major depressive episode” and stated that he suffered from pre-existing “possible obsessional personality traits”.
18 On 19 April 2013 Mr Hunter lodged a claim for compensation under s 14 of the SRC Act for “Major Depressive Episode” which he claimed he first suffered on 4 April 2010. The alleged cause of this condition was described in the evidence (as cited by the Tribunal) as:
Intense and sustained very high stress levels as a consequence of long term exposure to high workloads numerous and variable stressors regarding volatile and mentally demanding work coupled with my high motivation, dedication, commitment and desire to achieve positive outcomes for customers and Telstra.
19 On 17 May 2013 Dr Springfield provided a report to Telstra stating that Mr Hunter displayed long standing mood disturbance and psychological problems which appeared to have worsened in 2010, 2011, 2012 and 2013.
20 On 5 June 2013 Mr Hunter was assessed by psychiatrist Dr Adrian Morris, who diagnosed Mr Hunter as suffering a mild depressive episode.
21 On 21 August 2013 Telstra determined that it was not liable to pay compensation to Mr Hunter pursuant to s 14 of the SRC Act. Mr Hunter requested a reconsideration of that determination.
22 On 8 November 2013 Dr Springfield diagnosed Mr Hunter with an “adjustment disorder with depressed mood”, and certified Mr Hunter as unfit for work.
23 On 19 November 2013 Telstra affirmed the determination of 21 August 2013 (the decision of 19 November 2013 being “the reviewable decision”).
24 On 18 December 2013 Mr Hunter lodged an Application for Review of the reviewable decision with the Tribunal.
25 On 26 June 2014 Dr Helen Siddle, a consultant psychiatrist, conducted an independent medical assessment of Mr Hunter, and provided a report dated 1 July 2014.
Decision of the Tribunal
26 The Tribunal accepted at the outset that Mr Hunter had suffered from a major depressive disorder or episode. Referring to s 5A and s 5B of the SRC Act, the Tribunal said at [5] that the primary issues before it were:
(a) whether Mr Hunter’s depression was contributed to, to a significant degree, by his employment; and
(b) if so, whether his condition was the result of reasonable administrative action, taken in a reasonable manner.
27 At [6] the Tribunal observed:
As a project manager Mr Hunter was generally responsible for 10 to 15 projects at a time. Fellow employees, as well as Mr Hunter, said that the work could be mentally demanding. Issues could arise requiring urgent attention, and involving a degree of pressure.
(footnotes omitted.)
28 In so observing the Tribunal referred to evidence of Mr Hunter’s colleagues Ms Stephens, Mr Paraskevopoulos and Mr Violo.
29 The Tribunal found (at [7]) that there was contemporaneous evidence that Mr Hunter believed he had a stressful workload, referring in particular to references to work stress and to time absent from work in the notes of Mr Hunter’s general practitioner Dr Springfield. The Tribunal observed that Telstra’s records also contained references to Mr Hunter expressing concern with the volume and pressure of his work, including his ability to comply with or complete administrative processes (at [8]), and at [9] noted evidence of Ms Stephens that Mr Hunter had complained about his workload during 2012 and 2013.
30 The Tribunal found that Mr Hunter was an honest witness. It dismissed Telstra’s submission that various matters (including Telstra’s contention that other project managers had more work than Mr Hunter and that Telstra had offered to reduce his workload) reflected badly on Mr Hunter’s credibility such that his claim should not be accepted by the Tribunal.
31 The Tribunal referred to psychiatric evidence which supported Mr Hunter’s case and continued:
19. It is not necessary that Mr Hunter’s workload was objectively excessive. I find that he did genuinely perceive that he had a high and stressful workload, and this perception was based on the fact that he was undertaking a project management workload.
20. I am also satisfied that this perception contributed, to a significant degree, to his depression. I also find that the onset of the condition was in or around April 2010.
32 In making its statement at [19] in relation to Mr Hunter’s workload the Tribunal relied on the decision of the Federal Court in Wiegand v Comcare [2002] FCA 1464; 72 ALD 795 (Wiegand) at [24] where the Court said:
24. It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to ‘employment’ which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
33 The key provisions before the Tribunal were s 14 and s 5A of the SRC Act.
34 Section 14 of the SRC Act provides, inter alia, that an employee is entitled to compensation in accordance with the legislation in respect of an injury suffered by the employee if the injury results in death, incapacity for work, or impairment.
35 Section 5A provides:
(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
36 Before the Tribunal, Telstra contended that Mr Hunter’s condition was excluded from the definition of “injury” in s 5A(1) of the SRC Act. In particular, Telstra referred to the following specific administrative actions taken by it in respect of Mr Hunter:
a “PICM investigation interview on or about 2 November 2011”;
a meeting between Mr Hunter and his supervisor, Ms Stephens, on 8 March 2012; and
a “performance meeting on 12 April 2012 and a written warning issued the same day”.
37 Mr Hunter accepted that each of these actions constituted “reasonable administrative action taken in a reasonable manner in respect of [Mr Hunter’s] employment” within the meaning of s 5A(1), and that the relevant administrative action need not be the sole cause of injury so as to create an exception to the definition of “injury” in s 5A(1). In the Tribunal however he contended that no single action or combination of actions provided the requisite causal connection to enliven the proviso in s 5A(1). The Tribunal observed:
25. My understanding was that Telstra was not confining itself to those specific actions, but also relied on performance management plans and associated meetings in a more general sense, as constituting reasonable administrative action falling within the proviso.
26. However, whether the issue is those specific administrative actions, or more generally the performance management regime which Mr Hunter experienced, I am not satisfied that Mr Hunter’s depression does fall within the exclusionary provision of s 5A(1) of the SRC Act.
27. First, I have found that the on-set of Mr Hunter’s depression was in or about April 2010. In my view it pre-dated the administrative action.
28. Secondly, the medical evidence, which I accept, does not support Telstra’s contention. When asked about performance management as a work stressor, Dr Burgess said that his impression was that the major stressor was work pressure and that was the likely genesis of Mr Hunter’s condition.
29. Dr Morris only identified “workplace stress dating back from 4 April 2010” as the cause of the depression.
30. Dr Siddle was of the opinion that performance management did not play a “precipitating” role but only a “perpetuating” role. Her opinion was that the depression was caused by what Mr Hunter “perceived as an excessive workload” and that “his illness then contributed to his poor performance and the performance management added to his stress and acted as a perpetuating factor”.
(Footnotes omitted.)
38 The Tribunal concluded that Mr Hunter suffered “a disease” consisting of a major depressive episode that was contributed to, to a significant degree, by his employment with Telstra. The Tribunal concluded further that Mr Hunter’s major depressive episode was not the result of reasonable administrative action. Accordingly, the Tribunal set aside the reviewable decision, and substituted a decision that Mr Hunter was entitled to compensation under s 14 of the SRC Act for a major depressive episode.
Appeal
39 Telstra appealed from the whole of the decision of the Tribunal. In its notice of appeal Telstra raised the following questions of law:
1. Whether the Tribunal erred in law in its application of the reasons of the Federal Court decision in Wiegand v Comcare Australia (2002) 72 ALD 755 in regard to its finding that the Applicant’s perception of his workload was that he was overworked.
2. Whether the Tribunal erred in law in failing to provide adequate reasons pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 in regard to its findings on the following matters:
a. the Applicant’s date of injury;
b. the Applicant’s claim to being overworked; and
c. the role of the performance management processes as a causative factor in the onset of the Applicant psychiatric condition
3. Whether the Tribunal erred in law in failing to apply its [sic] s.5A(1) of the Safety, Rehabilitation and Compensation Act 1988 and considering the effect of the evidence in regard to “reasonable administrative action”.
40 The grounds relied on by Telstra were as follows:
1. The Tribunal erred in applying the reasoning in Wiegand v Comcare Australia (2002) 72 ALD 755 in ascribing importance to a finding that the Respondent had a “perception” that he was overworked.
2. The Tribunal’s reasons in respect to the issues of:
a. the Applicant’s date of injury
b. the Applicant’s claim to being overworked; and
c. the role of the performance management processes as a causative factor in the onset of the Applicant’s psychiatric condition
are, in light of the evidence and submissions of both parties, inadequate and not in conformity with the requirements of s.43 of the Administrative Appeals Tribunal Act 1975 (Cth)
3. In making a finding that the administrative action (performance management processes) were a perpetuating factor of the Applicant’s psychiatric conditions, it was then incumbent upon the Tribunal to consider the evidence and the application of s.5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). This step was not taken by the Tribunal
41 At the hearing Counsel for Telstra submitted that ground 3 was its strongest ground of appeal.
42 Telstra seeks the following orders:
1. That the appeal be allowed
2. That the decision of the Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with the law
4. The Respondent pay the Appellant’s costs of and incidental to this Appeal
5. Such further orders as the Court sees fit
Submissions of the parties
43 The case of Telstra can be summarised as follows:
The Tribunal relied on the decision of the Federal Court in Wiegand in respect of the perception of overwork, however there are crucial distinctions between the facts of Wiegand and this case.
The Tribunal failed to give written reasons, and failed to make findings on material questions of fact, on matters relevant to the claimed date of injury (stated by the Tribunal to be “in or about April 2010”) Mr Hunter’s claim to being overworked, and the role of the performance management processes as causative factors in the onset of Mr Hunter’s psychiatric condition. The Tribunal failed to disclose how evidence relating to the performance management processes, the leave taken by Mr Hunter, and records of the medical practitioners, were assessed.
The Tribunal failed to deal with Dr Yang’s report in its reasons.
Section 5A should be interpreted such that a worker who is the subject of legitimate human resource administrative action, which was being undertaken in a reasonable way, should not be entitled to successfully claim workers’ compensation benefits when those processes are perpetuating a disease.
44 Mr Hunter’s case was, in summary, as follows:
the Tribunal correctly applied the principle arising in Wiegand.
the Tribunal was correct to observe that it was not necessary that Mr Hunter’s workload was objectively excessive.
in finding that the onset of Mr Hunter’s depression was in or around April 2010, the Tribunal referred to the evidence of Dr Springfield, Dr Morris and Dr Siddle.
in relation to Mr Hunter’s claim to being overworked, the Tribunal found that Mr Hunter was a project manager who was generally responsible for 10 to 15 projects at a time, relying on evidence of Mr Hunter as well as evidence of witnesses Ms Stephens, Mr Paraskevopoulos and Mr Violo.
in relation to the Tribunal’s findings concerning the role of the performance management processes as causative factors in the onset of Mr Hunter’s psychiatric condition, the Tribunal found as a fact that the onset of Mr Hunter’s depression pre-dated the administrative action, relying on evidence to that effect.
the test in s 5A was whether Mr Hunter’s depression was a result of the relevant administrative action, namely the various performance management processes identified. The Tribunal resolved the factual question of causation against Telstra.
Consideration
45 This appeal before the Court has been brought by Telstra pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Such appeals lie only on questions of law, and lies in the original jurisdiction of the Court.
Ground 1
46 In ground 1 of the appeal Telstra claimed that the Tribunal erred in referring to Wiegand and ascribing importance to a finding that Mr Hunter had a “perception” that he was overworked. In dealing with ground 1 it is useful to examine the decision in Wiegand in some detail.
Wiegand
47 In Wiegand the applicant worked for the Australian Taxation Office (the ATO). On 12 May 1998 he claimed compensation in respect of “major depression”. He asserted that a number of events which occurred in the course of his employment with the ATO contributed to his condition, including “defamation and victimisation in 1990”. The applicant’s claim was pursuant to s 14 of the SRC Act. Materially, the terms of s 14 of the SRC Act and the definition of “injury” in the SRC Act considered by the Court in Wiegand have remained unchanged.
48 The issue for determination by the Court in Wiegand was whether the applicant’s ailment, or an aggravation of the ailment, “was contributed to in a material degree by the employee’s employment” with the ATO.
49 Medical evidence before the Tribunal in Wiegand was that the applicant’s depression had developed as a result of the impact of injustices and imperfections of the workplace as perceived by the applicant. The ATO rejected the applicant’s application for compensation.
50 On review of the ATO decision, the Tribunal found that the applicant’s condition could not materially be attributed to his work at the ATO, and affirmed the ATO decision to deny liability to pay compensation.
51 Von Doussa J considered that the Tribunal erred in law in applying the definition of “disease” to the factual material which was led in evidence before the Tribunal. After summarising in some detail the evidence which was before the Tribunal, his Honour observed:
14. The psychiatrists appear to be in substantial agreement that all of Mr Wiegand’s difficulties cannot be attributed to his employment, and that the predominant factor in his depressive disorder relates to his basic personality. However, that conclusion does not answer the question whether, within the meaning of the definition of disease in the SRC Act, Mr Wiegand was in January 1998 incapacitated by an aggravation of that ailment that was contributed to in a material degree by his employment with the ATO.
52 His Honour at [18] noted that the Tribunal relied in particular on observations of the psychiatrists, including the following:
Naturally, Mr Wiegand attributes his condition to the workplace, but the reality of the situation is that there are a number of other significant issues which have occurred in his life and which need to be considered when assessing the cause of his undoubted major depressive disorder. On balance, I consider that it is most unlikely that the workplace has materially contributed to his condition and that it has been Mr Wiegand’s perception of the workplace, due to his longstanding personality traits, which have led to difficulties in the workplace. If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr Wiegand’s complaints. However, it is my understanding that his complaints have been investigated extensively and found wanting.
53 His Honour noted in particular at [19] the emphasis placed by the Tribunal on the view of one particular psychiatrist that the applicant’s depression had developed because of the impact of perceived injustices and imperfections of the workplace, and the following conclusion of the Tribunal:
90. The Tribunal on the evidence before it is satisfied and finds that the applicant has a major depressive disorder and that in addition has prominent obsessive-compulsive personality traits which are related to longitudinal life issues and that whilst upset in the work environment such was not the cause of his unfortunate condition. The Tribunal is further satisfied that the applicant is vulnerable to stressors resulting in his depression being exacerbated but that such is the result of constitutional factors rather than any external factors. As a result of his condition the Tribunal is satisfied that he is unable for the present to return to his original work in the ATO.
54 His Honour considered that the Tribunal failed to address the narrow issue which fell for decision, namely whether within the meaning of the definition of disease the major depressive disorder suffered by the applicant in respect of which the compensation claim was made was “an ailment or an aggravation that was contributed to in a material degree by the employee’s employment. His Honour observed that to ask whether the upset in the work environment was the cause of the applicant’s condition was to ask the wrong question which sought to identify a single real cause of the condition (at [20]). As His Honour then noted:
It is not a test which recognises that an injury, being a disease, will be compensable if it is an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree.
55 His Honour continued at [21]:
It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.
56 His Honour later observed:
23. In terms of the definition of disease, the question which the Tribunal was required to consider was whether Mr Wiegand’s ailment or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment”. In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:
Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.
24. It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
(emphasis added.)
57 His Honour also said:
27. In a case where an employee suffers a long standing mental ailment which has its origin in factors unrelated to the employment, an aggravation of that condition contributed to in a material degree by the employee’s employment will not fall outside the definition of disease merely because it is likely that in the end the underlying ailment would inevitably have progressed until the employee was unable to work: see Federal Broom Co Pty Ltd v Semlitch per McTiernan J at 630.
58 In respect of the applicant’s perception of events in Wiegand, his Honour observed:
31. In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
Findings of Tribunal in this case
59 The applicant criticises the findings of the Tribunal and its application of the reasoning of the Court in Wiegand, however in my view these criticisms are without foundation.
60 As Von Doussa J explained in Wiegand at [24], the key question in considering whether an employee has suffered an “injury” by way of aggravation of an existing ailment within the meaning of s 5A(1)(c) of the SRC Act is whether the employee has been exposed to some state of affairs in the course of the performance of his duties (and to which he or she would not otherwise have been exposed) which contributes to the ailment he or she suffers. It may be that, because the employee suffers a particular condition, the state of affairs aggravates that condition of that particular employee. The answer to this key question entails factual findings by the Tribunal. Indeed this is the context in which his Honour in Wiegand referred to the “perception” of the particular employee who suffered depression and whose condition was aggravated by the state of affairs in that case.
61 Once the Tribunal forms a view about this question, the next question is whether the proviso to s 5A(1) operates, and whether the employee has suffered the relevant aggravation as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
62 The comments of the Tribunal at [19] and [20] in this case were directed to the primary factual issue concerning the effect of Mr Hunter’s workload on him, and his particular condition, within the meaning of s 5A(1). To reiterate: s 14 of the SRC Act contemplates compensation being paid to an employee as a result of an injury suffered by that employee, where “injury” is defined by s 5A(1) as including an aggravation of an injury suffered by an employee that is an aggravation that arose out of, or in the course of, that employment. The Tribunal made a factual finding that Mr Hunter suffered an injury which developed in or around April 2010, namely depression. In that context, namely the Tribunal’s consideration of the causes of, or the basis of aggravation to, Mr Hunter’s injury, I see no error in the Tribunal finding that Mr Hunter’s workload aggravated his depression, and that it was not necessary to consider whether Mr Hunter’s workload was objectively excessive (and, indeed, taking this issue further, it was not necessary for the Tribunal to consider whether Mr Hunter’s workload could objectively be seen to have aggravated his condition). The findings of the Tribunal are open to it on proper application of the terms of s 5A(1) of the SRC Act.
63 In my view ground 1 is not substantiated.
Ground 2
64 Section 43(2) of the AAT Act provides that the Tribunal shall give reasons either orally or in writing for its decision. Section 43(2B) provides that where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact.
65 The medical evidence before the Tribunal was substantial, including independent medical reports by Dr Yang and reports by psychiatrists Dr Morris and Dr Siddle.
66 In his report of 16 September 2010 Dr Yang opined that Mr Hunter suffered from mild sleep apnoea and general stress. By the time of his report of 16 July 2012 however Dr Yang was of the view that Mr Hunter was suffering from a longstanding depressive mood disorder and that ongoing work-related stressors were impacting on his condition and, in turn, affecting his work capacity and attendance.
67 In his report of 13 June 2013 Dr Morris diagnosed Mr Hunter as having a Major Depressive Disorder. From the limited information available, Dr Morris considered that this condition evolved as a consequence of the allegation of workplace stress dating back from 4 April 2010, and that Mr Hunter's work at Telstra significantly contributed to his condition. In her report dated 26 June 2014 Dr Siddle diagnosed Mr Hunter as suffering a Major Depressive Episode during approximately the previous two years of his work, and that the condition was likely to have been present from at least mid-2010.
68 In relation to the Tribunal’s finding that Mr Hunter’s date of injury was “around April 2010”:
the Tribunal referred at [2] of its reasons to Mr Hunter’s claim that he first suffered depression on 4 April 2010; and
the Tribunal referred at [16] of its reasons to the report of Dr Morris, including Dr Morris’ view that Mr Hunter’s condition evolved as a consequence of the allegation of workplace stress dating back from 4 April 2010.
69 In relation to the Tribunal’s findings concerning Mr Hunter’s claim that he was overworked:
the Tribunal referred at [2] of its reasons to Mr Hunter’s claim that he experienced high workloads and resultant stress;
the Tribunal referred at [7] of its reasons to contemporaneous notes of Mr Hunter’s general practitioner, Dr Springfield, in which Dr Springfield opined that Mr Hunter was under stress because of his workload;
the Tribunal referred at [18] and [30] of its reasons to evidence of Dr Siddle to the effect that Mr Hunter’s stress was largely due to him feeling unable to keep up with what he perceived to be an excessive workload;
the Tribunal referred at [28] of its reasons to evidence of Dr Burgess to the effect that the major stressor affecting Mr Hunter was work pressure.
70 In relation to the Tribunal’s findings concerning the role of the performance management processes as a causative factor in the onset of Mr Hunter’s psychiatric condition:
the Tribunal referred at [25] of its reasons to the reliance by Telstra on performance management plans and associated meetings in a more general sense, as constituting reasonable administrative action falling within the proviso to s 5A;
the Tribunal referred at [30] to evidence of Dr Siddle that performance management did not play a “precipitating” role but only a “perpetuating” role, that Mr Hunter’s depression was caused by what Mr Hunter “perceived as an excessive workload”, and that “his illness then contributed to his poor performance and the performance management added to his stress and acted as a perpetuating factor”.
71 Before me Counsel for Telstra identified evidence of Dr Yang which, he submitted, the Tribunal did not specifically address. In particular my attention was drawn to:
Dr Yang’s report dated 16 September 2010 where he opined that general stress may have contributed to Mr Hunter’s symptoms but Mr Hunter did not appear to have suffered from severe symptoms suggesting a major mood disorder; and
Dr Yang’s report dated 16 July 2012 where he opined that it was apparent that work related stressors were impacting on Mr Hunter’s condition, and that unless Mr Hunter’s “work issues with management (were) resolved then further periods of excessive work absences (were) likely”.
72 Counsel for Telstra submitted that the “work issues with management” clearly related to the performance management processes which in turn could properly be described as reasonable administrative action within the meaning of s 5A(1) of the SRC Act.
73 The traditional approach of the Court to review of administrative decisions (including decisions of the Tribunal) was explained by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, those comments subsequently being adopted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and reiterated more recently by the Full Court in Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180 at [118]). In summary, the Court will not be concerned with looseness in the language of a tribunal nor with unhappy phrasing of a tribunal’s thoughts. Further, the Court will not construe the reasons for the decision under review “minutely and finely with an eye keenly attuned to the perception of error”.
74 Additional principles specifically relevant to review of reasons provided by the Tribunal include that:
there is no requirement for the tribunal to refer to every piece of evidence and every contention that may be advanced: Reece v Webber (2011) 192 FCR 254; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 at 641 at [46]; Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65; and
there is no requirement that the reasons of the Tribunal provide an unarguable logical progression to a conclusion: Repatriation Commission v Hendy [2002] FCAFC 424; 76 ALD 47 at [39].
75 As French J explained in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 91 ALD 103 at [40]:
... the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.
(cf Perry J in Yao v Minister for Immigration and Border Protection [2014] FCAFC 17 at [43]).
76 In this case while the Tribunal’s reasons are not lengthy, they are adequate to address the three matters with which Telstra takes issue in ground 2. I note that Telstra’s particular criticism in respect of the reasons of the Tribunal appear to concern the reports of Dr Yang, however:
the weight attributed by an administrative tribunal to particular evidence is in all cases a matter for that tribunal: Wu Shan Liang; and
I am not satisfied that the evidence of Dr Yang is inconsistent with that of Dr Morris identified in [16] of the Tribunal’s reasons. I take this view because:
○ Dr Yang concluded in his 2012 report that Mr Hunter had been suffering from a longstanding depressive mood disorder;
○ unlike Dr Morris, Dr Yang did not identify when he considered Mr Hunter had begun to suffer from this disorder;
○ in his 2012 report Dr Yang opined that at the time of his earlier review of Mr Hunter in September 2010 Mr Hunter’s symptoms had shown improvement because Mr Hunter had had a period of recreational leave;
○ there is nothing in Dr Yang’s 2012 report which indicates any contrary view to that of Dr Morris as to the commencement of Mr Hunter’s depression.
77 The factual findings of the Tribunal in respect of the issues identified by Telstra are supported by evidence identified by the Tribunal in its reasons. In my view ground 2 is not substantiated.
Ground 3
78 The Tribunal’s reasons addressing the question whether Mr Hunter’s injury constituted aggravation suffered as a result of reasonable administrative action can be found at [21]-[30] of its decision which are as follows:
21. Telstra contended that, notwithstanding the above, Mr Hunter’s condition was excluded from the definition in s 5A(1) of the SRC Act of injury (including disease) because:
[injury]...does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
22. Several specific administrative actions were referred to, namely:
(a) a “PICM investigation interview on or about 2 November 2011”;
(b) a meeting between Mr Hunter and his supervisor, Ms Stephens, on 8 March 2012; and
(c) a “performance meeting on 12 April 2012 and a written warning issued the same day.”
23. It was acknowledged on behalf of Mr Hunter that each of these actions satisfied the requirement of a reasonable administrative action taken in a reasonable manner in respect of Mr Hunter’s employment. It was also acknowledged that the relevant administrative action need not be the sole cause so as to create an exception to the definition of injury.
24. It was contended, however, that no single action or combination of actions provided the requisite causal connection to enliven the proviso.
25. My understanding was that Telstra was not confining itself to those specific actions, but also relied on performance management plans and associated meetings in a more general sense, as constituting reasonable administrative action falling within the proviso.
26. However, whether the issue is those specific administrative actions, or more generally the performance management regime which Mr Hunter experienced, I am not satisfied that Mr Hunter’s depression does fall within the exclusionary provision of s 5A(1) of the SRC Act.
27. First, I have found that the on-set of Mr Hunter’s depression was in or about April 2010. In my view it pre-dated the administrative action.
28. Secondly, the medical evidence, which I accept, does not support Telstra’s contention. When asked about performance management as a work stressor, Dr Burgess said that his impression was that the major stressor was work pressure and that was the likely genesis of Mr Hunter’s condition.
29. Dr Morris only identified “workplace stress dating back from 4 April 2010” as the cause of the depression.
30. Dr Siddle was of the opinion that performance management did not play a “precipitating” role but only a “perpetuating” role. Her opinion was that the depression was caused by what Mr Hunter “perceived as an excessive workload” and that “his illness then contributed to his poor performance and the performance management added to his stress and acted as a perpetuating factor”.
(footnotes omitted.)
79 Telstra submitted that the Tribunal erred in failing to consider the effect of the evidence in regard to “reasonable administrative action” within the meaning of s 5A(1) of the SRC Act. In particular, Counsel submitted that:
in finding that performance management issues were perpetuating factors in respect of Mr Hunter’s condition, the Tribunal was compelled to consider whether or not the performance management processes were reasonable in all the circumstances; and
authorities supporting this proposition are the decisions of the Full Court in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; Hart v Comcare (2005) 145 FCR 29 and Drenth v Comcare [2012] FCAFC 86; 128 ALD 1.
80 While this submission has some force, I am satisfied that it discloses no reviewable error in the decision of the Tribunal. I have formed this view for the following reasons.
81 First, the Tribunal has clearly made factual findings as to the injury suffered by Mr Hunter. In particular, the Tribunal has found that Mr Hunter’s depression dated from April 2010, and that work stress aggravated his condition, relying in particular on evidence of Dr Springfield, Dr Morris and Dr Burgess.
82 Second, the Tribunal clearly considered the question whether the performance management processes – conceded by Mr Hunter to be “reasonable administrative action” within the meaning of s 5A – aggravated Mr Hunter’s condition such as to trigger the proviso to s 5A(1). At [26] the Tribunal found that the exclusionary proviso referable to reasonable administrative action was not applicable, and particularly relied on the opinions of Dr Morris and Dr Burgess in reaching this conclusion. This was a finding open to the Tribunal.
83 At [30] the Tribunal noted the evidence of Dr Siddle that the performance management process played a “perpetuating” role, which potentially triggered the application of the proviso in s 5A(1). However critically, the Tribunal clearly discounted this evidence in favour of Dr Siddle’s broader opinion that Mr Hunter’s depression was caused by his workload rather than performance management. I note in particular the following opinion of Dr Siddle in her report dated 1 July 2014, which was before the Tribunal:
3. What specific work events or factors (if any) caused or significantly contributed to the onset of this injury?
I am unable to report on any specific work events or factors that caused or significantly contributed to the onset of the injury. It is my opinion that Mr Hunter’s inability to perform the work that was provided to him to the level that he believed was appropriate and to the level expected by his employers over a prolonged period of time has contributed to the onset of this injury.
4. Please assume that the history given by our client is not accepted by the Tribunal. Based on the contemporaneous material only, what are the specific work events (if any) that caused or significantly contributed to the onset of this injury?
I am unable to outline a specific work event that caused or significantly contributed to the onset of this injury. It is my opinion based on the contemporaneous material that as over a prolonged period of time Mr Hunter did not feel able to perform his work appropriately due to what he perceived as an excessive work load, this is likely to have been a significant contributor to the onset of his injury. Based on the contemporaneous material supplied, the ongoing performance management is likely to have perpetuated his illness as he felt unable to meet all requirements given the workload that he had.
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7. Is the performance management undertaken on our client at Telstra an operative cause of this condition, or was our client’s poor performance a result of the enduring effects and symptoms of the condition? Please explain your answer.
Based on the contemporaneous material provided, it is my opinion that it is more likely than not that increasing work requirements were a significant precipitating factor for Mr Hunter’s illness. It is my opinion that it is likely that his illness then contributed to his poor performance and the performance management added to his stress and acted as a perpetuating factor.
I am in agreement with Dr Adrian Morris that the lack of previous depressive history suggests the initial reasoning of work issues precipitating and perpetuating this depressive episode would be the most likely causative factor.
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12. Is our client likely to suffer from an incapacity for work as a result of that condition in the future?
I feel it is unlikely that Mr Hunter will suffer an incapacity to work as a result of his previous condition in the future. His condition appeared to be largely related to the stress he felt under in his previous workplace.
(emphasis added.)
84 This broader opinion of Dr Siddle was supported by evidence of Dr Morris and Dr Burgess.
85 The analysis of the Tribunal not only included specific factual findings, but demonstrated weighing of evidence which is, as I have already noted, a task for the Tribunal.
86 While it may have been open for the Tribunal to find that the performance management processes aggravated Mr Hunter’s depression, on the facts the Tribunal found otherwise. I do not consider that the evidence compelled the Tribunal to find that Mr Hunter’s condition was aggravated by performance management, such that his “injury” was caused by reasonable administrative action within the meaning of s 5A(1) of the SRC Act.
87 Third, I am not satisfied that the work stress suffered by Mr Hunter can be equated with the performance management processes within Telstra. The Tribunal clearly considered that the work stress suffered by Mr Hunter related to his workload and his perception of his workload. Again, that was a factual finding open to the Tribunal.
Conclusion
88 The appropriate order is to dismiss the application with costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
