Reeve and Commonwealth Bank of Australia [2010] AATA 893 (12 November 2010)

Last Updated: 15 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 893

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5115

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MARK REEVE

Applicant

And

COMMONWEALTH BANK OF AUSTRALIA

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr J Chaney, Member

Date 12 November 2010

Place Perth

Decision

The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation to the applicant in respect of an “injury”, namely, major depressive disorder, sustained by him on 21 July 2008.

Application may be made to the Tribunal in relation to the costs of this proceeding within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of this proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

............[sgd S D Hotop]........

Deputy President

CATCHWORDS

COMPENSATION – applicant employed by respondent – applicant claimed compensation for mental illness – respondent accepted liability to pay compensation to applicant for major depression – respondent subsequently decided it was not liable to pay compensation to applicant – applicant suffered major depressive disorder – applicant’s major depressive disorder contributed to, to a significant degree, by applicant’s employment by respondent – applicant’s major depressive disorder a “disease” – applicant’s major depressive disorder not suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment – applicant’s major depressive disorder an “injury” – respondent liable to pay compensation to applicant in respect of major depressive disorder – reviewable decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5A, s 5B, s 7(4) and s 14(1)

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

REASONS FOR DECISION

12 November 2010

Deputy President S D Hotop Dr J Chaney, Member

INTRODUCTION

1. Mark Reeve (“the applicant”) was, at all material times, employed by the Commonwealth Bank of Australia (“the respondent”).
2. On 28 July 2008 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for a condition described by him as

“ anxious nervessnes (sic)
attempted self harm”

which he claimed that he suffered on 21 July 2008 at 7.15 am at his usual workplace and which he claimed was caused by “stress”.

3. On 2 October 2008 the respondent made a determination accepting liability under the SRC Act to pay compensation to the applicant in respect of an injury described as “major depression – single episode” sustained on 21 July 2008.
4. On 12 October 2009, however, the respondent, following a reconsideration “on its own motion” of the determination of 2 October 2008, made a “reviewable decision” under s 62 of the SRC Act revoking that determination and instead determining that the respondent “is not liable to pay compensation [to the applicant] in respect of the alleged injury”.
5. On 22 October 2009 the applicant made an application to the Tribunal for review of the reviewable decision of 12 October 2009.

THE EVIDENCE

6. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T217, pp 1–660) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Exhibits A1–A11 tendered by the applicant;
   • Exhibits R1–R32 tendered by the respondent; and
   • the oral evidence of the applicant, and Dr Stephen Proud, Dr Paul Skerritt, Jill Russell, Paul Carson and Glenn Hurst.

THE APPLICANT’S EVIDENCE

7. The applicant confirmed that he had signed two witness statements for the purpose of this proceeding and that their contents are true.
8. The applicant’s first witness statement, dated 1 February 2010, is as follows:

“ ...

1. I was born on ... November 1961.
2. I am employed by the Commonwealth Bank of Australia and have been since January 2007. Prior to that I worked for ASB Bank in New Zealand.
3. I have worked in the banking industry for twenty-five years.
4. Since August 2007 I have been the Manager of the Mount Hawthorn Branch of the Commonwealth Bank. Prior to that I was a Mobile Manager for the Bank.
5. My role and responsibilities include the provision of services and products to customers, ensuring the Branch meets or exceeds set performance targets and overall supervisory responsibility for the nine staff employed at the Branch.
6. I had previously worked as Branch Manager for fifteen years and as such have a lot of experience.
7. I found the systems in the Commonwealth Bank to be quite different to what I am used to.
8. I was provided with on-the-job training rather than a formal program. My induction and training for the position of the Branch Manager at Mt Hawthorn was ad hoc.
9. In July 2008 I suffered extreme anxiety to the extent that I contemplated suicide.

Restructure

10. The Bank is divided into a number of areas, and each area has an Area Manager. I was the Branch Manager for Mt Hawthorn Branch, and the Area Manager was Paul Carson.
11. At this time I had a staff member who had been described as a ‘very good lender’ working at the Mt Hawthorn Branch. A lender is an employee who negotiates loans, both housing and personal. I was told that my ‘lender’ would be moving to the Innaloo Branch and that I would be getting a ‘lender’ from that Branch. Another of my high performing staff members, my assistant manager, was also shifted to a northern branch three months earlier and had only been at our Branch for three months.
12. These changes destabilised the Branch.
13. When the new ‘lender’ whose name was ... came to my Branch, he told me he had only been given a couple of hours notice about the move and was not happy about it. He said to me ‘I don’t want to be here’.
14. It distressed me to have a staff member at my Branch who did not want to be there. This kind of thing happens when staff are moved without proper consultation, and is bad or (sic) morale.
15. On a Monday in early to mid June 2008, there was an Area telephone meeting amongst several branches, and nothing was said about any transfer or move.
16. That morning at approximately 10:00 am I got a telephone call from a former staff member of Mt Hawthorn (sic) by the name of.... He had just attended his own Area telephone meeting (Subiaco), and said that he was told the Mt Hawthorn Branch was moving to his area.
17. This stressed me further, as I had not been told, and I was the Branch Manager. I felt gutted that I had been kept in the dark about it.
18. I then spoke to Paul Carson and relayed this information to him. I was upset that I had not been told about it. He then indicated that he had been planning to tell me about it. He had no explanation as to why I had not been consulted.
19. I also had to deal with disgruntled staff who were not told about the move, and were unhappy to be there.
20. The restructure resulted in the Mt Hawthorn Branch being relocated to a different Area (Area Perth) under a different Area Manager.
21. The Area Perth Manager, Glenn Hurst has a reputation as being a strict no nonsense person who has high expectations.
22. I did not personally know Glenn and had not worked with him before.
23. There was no one-on-one meeting between Glenn and I prior to the restructure.
24. There was a conference that focussed primarily on information dissemination. There was no opportunity to form a relationship with Glenn.

Customer Surveys and Teleconference

25. In the first two weeks of operation of the Branch in the new Area, the customer survey experience and lending results were poor, as assessed by the Respondent.
26. The process of these surveys, are that customers that come into the Branch are picked at random and surveyed. They are given an opportunity to rank from 1 to 10. If we are given a ranking of anywhere from 1 to 8 then that is classed as a zero. Annexed to my statement and marked ‘MR 1’ is a copy of such a survey.
27. I felt that this was unfair, as even if I went somewhere and I was happy enough with the service, I am unlikely to give a 9 or a 10 for that service. If I gave someone a 7 or 8 out of 10, I would still be happy with the service.
28. However, at the Bank, unless we got a 9 or a 10 it was a zero. On the week ending Friday 18 July 2008 my Branch got a number of ‘zero’ ratings. I do not believe that that method of assessment is at all reasonable.
29. There is a very high expectation on customer survey experiences and there is pressure to perform at the highest level.
30. On Friday, 18 July 2008, I was placed in a position where I had to report the lending referral outcome for the week in a conference call involving all the managers from the 15-17 branches in the Area.
31. I found this experience in that forum to be extremely stressful. Glenn addressed me during the conference, going through each of the days, asking what I did on Tuesday, what I did on Wednesday, what I did on Thursday.
32. I was not given an opportunity to adequately explain myself and to outline areas in which I had performed well that week. I felt that in the circumstances the method of his questioning was entirely unreasonable.
33. Glenn told me off, like I was inferior and made a comment about how this was not how (sic) to run a branch.
34. I personally felt embarrassed and humiliated in having to discuss the situation in a public forum.
35. Later that day, the survey for the current week came in and the result was again less than the Respondent’s requirements.
36. The thought of going through the same scenario on the following Monday where (sic) another conference call was scheduled became too much for me.
37. The situation became so dire to me that I contemplated suicide and began to put into place arrangements to go through with that option.
38. I did not telephone Glenn Hurst or anyone else in the Bank.
39. I did not seek any medical assistance or counselling.
40. Glenn Hurst did make an unannounced visit to the Bank (sic) however he did not take the opportunity to engage in any personal discussion with me. He did meet with me, but only in a formal way.
41. He did not seem to respond to several positive initiatives I described to him, he focussed on the customer service and lending aspect during the visit, which I guess lasted between 30-40 minutes, he did most of the talking.
42. I had been a high performing member of staff, and the unreasonable actions of my employer in the lead up to and including the way the restructure occurred had caused stress and pressure. The restructuring itself is not something I complain about, but the method of it being delivered was entirely unreasonable.
43. Annexed to this statement and marked ‘MR 2’ is a copy of a notice, outlining a payment I received for high performance for the period 1 January 2008 to 30 June 2008. I was a high performing member of staff and when I was humiliated on 18 July 2008, I could not face that situation again.
44. On Monday, 21 July 2008, I arrived at work at about 6.10 am, cleared my emails and spent an hour clearing my desk and putting things in order.
45. I wrote a note to the staff.
46. I went to my car where I tried on three occasions to suffocate myself.
47. After the third attempt I telephoned my wife and told her I was coming home. I did not tell her until a week later what I had tried to do.
48. I returned home about 7.45 am. I sent a text message to the Assistant Manager advising her that I would not be in.
49. At the insistence of my wife I attended Dr Naran at Joondalup City Medical Centre. He referred me onto Joondalup Mental Health.
50. I have continued to see Dr Naran on a regular basis.
51. I have also attended Joondalup Mental Health and I have also consulted with Dr Skerritt.
52. Currently, I still attend on my General Practitioner, and consult with Psychologist Jill Russell, and Psychiatrist Dr Proud.
53. I am not taking any medication of any kind, other than that prescribed by my psychiatrist.
54. I had never before considered or attempted suicide or self-harm.
55. I have never before been diagnosed with or treated for any stress anxiety, depression or similar conditions.
56. I have never before been diagnosed with or treated for any psychiatric or physiological (sic) condition.
57. I have never before been diagnosed with or treated for any form of substance dependency or addiction. I don’t use any prescription or recreational drugs.
58. I drink about three stubbies of beer a week, no other alcohol.
59. I don’t smoke. I have never before claimed or received worker’s compensation for any reason.
60. I have never claimed or received any form of compensation as the result of any injuries or conditions suffered in any kind of motor vehicle accident.
61. I have never claimed or received any form of compensation as the result of any injuries or conditions suffered in a public place.
62. I have never claimed or received any form of compensation as the result of any injuries or conditions suffered playing sport.
63. There have been no issues or events in my personal life that might have caused or contributed to the stress condition for which I am claiming worker’s compensation.
64. There have been no traumatic events such as a bereavement, illness to family or friends or a family crisis that has occurred to coincide with the diagnosed stress condition that is the subject of my worker’s compensation claim.
65. I have not experienced any family or relationship difficulties or issues that might have caused or contributed to the stress condition for which I am claiming worker’s compensation, and I have a happy marriage.” (Annexures omitted) (Exhibit A1)
    
9. The applicant’s second witness statement, dated 30 June 2010, is as follows:

“ 1. I confirm that prior to my work activities in July 2008, I had never previously attempted suicide or self harm.

2. Any discussions with Dr Naran, or any other doctors I have consulted, in which I have referred to ‘previous’ attempts of suicide or self harm are references to the events of July 2008.
3. Prior to commencing work for the Commonwealth Bank, I had not suffered from any depression or attempted suicide or self harm.” (Exhibit A2)
   
10. In cross-examination the applicant was referred to numerous documents produced by the respondent, including the following:
    • the applicant’s half-yearly staff review for the period 1 July–31 December 2007 which recorded that, in respect of “Customer Experience Survey (9/10)”, his Branch’s rating was: “Exceeds Expectations” (Exhibit R1);
    • the applicant’s annual staff review for the period 1 July 2007–30 June 2008 which recorded that, in respect of “Customer Experience Survey (9/10)”, his Branch’s rating was : “Meets Expectations” (Exhibit R24);
    • agendas for “Sales & Service” teleconferences on 14 April, 21 April, 5 May, 12 May, 19 May, 3 June, 16 June, 23 June, 30 June, 7 July, and 14 July 2008 which the applicant attended, each of which included as an agenda item:

“ Customer Experience Survey
What actions have you taken this week with CES to ensure a 9/10 (or 10/10)?” (Exhibits R3, R4, R5, R6, R7, R8, R10, R14);

• letter from Glenn Hurst, Area Manager Retail – Perth Area, to the applicant, dated 14 July 2008, complimenting the applicant on the “excellent customer service” recently provided by him and his staff to a particular business customer who had made a complimentary report about the service he had received at the applicant’s Branch (Exhibit R13);
• email dated 15 July 2008 from Glenn Hurst to each of the 15 Branches for which he was responsible, including the applicant’s Branch, congratulating 7 Branch Managers on achieving 100% in the CES survey for the first week of July 2008 and requesting the other 8 Branch Managers (including the applicant) to “elevate Customer Service to the top of your priority list” and to take action “to overcome the ‘reasons’ stated by customers as to why the service in your branch ... did not warrant a 9 or 10” (Exhibit R15);
• CES scores for the 15 Branches in Perth Area for the first two weeks of July 2008 indicating that the applicant’s Branch scored “0.00” for each of those weeks (Exhibit R19);
• email dated 17 July 2008 from Tom Christo, Branch Support Manager, Perth Area to each of the 15 Branches (including the applicant’s Branch) attaching the agenda for the Sales & Service teleconference on 21 July 2008 which included, as an agenda item, “CES” (Exhibit R18).

The applicant did not dispute the contents of any of those documents.

11. The applicant confirmed that he had telephoned Mr Hurst on 22 July 2008. His cross-examination continued:

“ Do you remember Mr Hurst asking you whether you were okay, because you told him what you had done?---Yes.
He asked you whether you’d sought medical attention and you said you were seeing a doctor and a psychiatrist. Do you remember that?---It sounds familiar, very familiar. Yes.
You told him – you said you were physically okay but you were stressed about branch’s CES score. Do you remember that?---No, I don’t.
I’d suggest to you that’s what you said to him, to Mr Hurst, on 22 July 2008, that you were stressed about your branch’s CES score. Do you agree with that?---No, I don’t.
Wouldn’t that be consistent with the zero per cent CES score week 1 and week 2, that you were sent on Friday the 18th, before the week-end. Wouldn’t that be consistent with that?---Well, I know what – I know that I was extremely stressed and I know that, you know, things like humiliation, shame and all sorts of words come into play. That’s how I felt. What I said to him, I’ve got no idea.
You don’t remember what you said?---I don’t. I don’t to any – to any degree other than I know I would have phoned them and I know I probably would have said I’m okay.
But the issue that was clearly on your mind on Friday the 18th was the CES score that you’d just been sent which showed you a zero per cent. You didn’t achieve the satisfactory CES score for that week or week 1 and 2. That’s correct, isn’t it?---The issue on Friday.
That’s the issue that was on your mind?---Definitely not.
Well, what was on your mind then?---I basically was ostracised. I was – I was put down and I was – I just felt out – just out there. I just wasn’t part – I wouldn’t say I wasn’t part of the team. I just – I just didn’t feel wanted and I just don’t know why I took the extreme – what I did, but it was obviously that powerful enough for me to do that and - - -
You see, what I don’t understand is, Mr Hurst made a diary note of 22 July and he said that that’s what you told him. You said that you were stressed about your branch CES score, so I just don’t understand why he would say that if that’s not what you told him?---Well, I’m not saying I didn’t say it because I can’t remember but if he says that and he wants to acknowledge that, then he can. I am not saying he’s a liar, absolutely not saying he’s a liar.
So you may have said that to him?---I may have said that. Yes.” (Transcript, pp 39–40)

12. The applicant also confirmed that he attended Dr Naran, his general practitioner, on 21 July 2008. He was referred to Dr Naran’s clinical notes of that consultation which state:

“ ...
stressed at work
tried self harm this morning at work
tried suffocate with plastic bag
previously also attented (sic) to self harm
not coping
referral to Joondalup mental health clinic
...” (Exhibit R25)

The applicant confirmed that the first time he had ever attempted to self-harm was on 21 July 2008 and he was unable to offer an explanation for Dr Naran’s note which appeared to indicate otherwise.

13. The applicant was referred to a letter dated 22 July 2008 from the Duty Officer, Joondalup Community Mental Health Clinic, to Dr Naran which states:

“ Mark attended the clinic, as advised, following his consult with you. He described no previous history of any mental health issues and all had been going well until some changes at the bank about 2-3 weeks ago. A series of poor rating results and feeling unable to face his colleagues and superiors left him feeling he had no other options but to attempt to end his life....” (Exhibit R27)

The applicant agreed that what was stated in that letter was a “reasonably accurate” account of what he had said at the time, although he suggested that “there was more said than just that”. (Transcript, p 47)

14. The applicant acknowledged that “one of the issues on [his] mind”, which made him feel that he could not face the teleconference scheduled on 21 July 2008 and which led him to attempt suicide earlier on 21 July 2008, was his Branch’s poor customer experience survey scores.
15. The applicant was referred to a “Statement of Evidence”, dated 21 August 2008, which was made by him for the purpose of an investigation by an insurance assessor in respect of his claim for compensation. He was referred, in particular, to paras 30–32 of that Statement which state as follows:

“ 30. I am not suggesting that at any time did Glenn Hurst say or do anything deliberately to cause me to feel anxious.

31. At no point had he criticised my performance or given me any indication that he was dissatisfied with me personally, my overall performance or that of the Branch.
32. I believe the customer survey situation and the conference call was the trigger that caused the condition that is the subject of my claim for workers compensation.” (T31, p 82)
    

The applicant confirmed that he had signed that Statement but he said that, when the investigator came to see him, his “mind was all over the place” and that he “didn’t know what was coming and going”. (Transcript, p 64)

THE EVIDENCE OF THE MEDICAL WITNESSES

Dr Stephen Proud

16. Dr Proud, Consultant Psychiatrist, confirmed that he first saw the applicant on 20 February 2009, following a referral by Dr Naran, and that he had since prepared various reports regarding the applicant’s ongoing psychiatric condition. The dates of those reports, which are in evidence, are as follows:
    • 20 February 2009 (Exhibit A3);
    • 12 April 2009 (Exhibit A4);
    • 12 May 2009 (T145);
    • 7 August 2009 (T182); and
    • 3 September 2009 (T201).

Dr Proud’s clinical notes in the period from 20 February 2009 to 3 December 2009 are also in evidence (Exhibit A5).

17. In his report of 12 May 2009 Dr Proud opined that the applicant was suffering from “a major depressive disorder, of marked severity with prominent suicidal ideation in the context of at least three attempts at self-harm”, which was “precipitated in July [2008] by his perception of being humiliated, embarrassed and unfairly criticised by his manager”.
18. In his oral evidence Dr Proud was referred to the history set out in his report of 12 May 2009 and, in particular, to his reference to the applicant’s claim that he had been criticised by his Area Manager, his receiving a “low customer satisfaction rating via email”, and his feeling “humiliated, embarrassed and distressed by this” and deciding “not to go back to work because he wasn’t coping”. Dr Proud confirmed that it was his understanding that it was both the criticism by the Area Manager and the low customer satisfaction rating that caused the applicant not to return to work on 21 July 2008. He agreed that the low customer satisfaction rating was a significant factor in causing the applicant to feel humiliated, embarrassed and distressed and not return to work.

Dr Paul Skerritt

19. Dr Skerritt, Psychiatrist, first saw the applicant on 25 August 2008, following a referral by Dr Naran, and he subsequently prepared reports dated 26 August 2008 (Exhibit A7), 21 November 2008 (Exhibit A8), and 17 December 2008 (T87) regarding the applicant’s psychiatric condition.
20. In his report of 17 December 2008 Dr Skerritt noted that the applicant had been referred to him in relation to:

“ an illness of depression which was provoked, as I understand it, by a relatively minor incident at work.”

He added:

“ The disproportionate nature of the reaction and the general symptoms described suggested to me that this was far more than an understandable reaction in the circumstances but that he had provoked (sic) a serious illness known as Major Depressive Disorder.”

21. In his oral evidence Dr Skerritt was referred to his clinical notes of the applicant’s initial consultation on 25 August 2008 (Exhibit A6). In those notes Dr Skerritt referred to (inter alia):
    • the decline in the number of lending referrals at the applicant’s Branch in a particular week from 7 or 8 to 1, and the unexpected visit by the applicant’s “new boss” to the Branch; and
    • the Friday customer service survey scores being 7s and 8s, where 8 or less/10 was classed as zero, and the applicant’s being unable to “face next Monday’s teleconference” and trying “to suffocate self”.

Dr Skerritt confirmed that it was his understanding that the fact that the applicant could not face the forthcoming Monday teleconference was a significant factor in his self-harming by trying to suffocate himself.

Ms Jill Russell

22. Ms Russell, Clinical Psychologist, first saw the applicant on 7 October 2008, following a referral by Dr Naran, and she subsequently prepared reports dated 21 October 2008 (Exhibit A9), 20 December 2008 (T90), 18 April 2009 (T136), and 8 June 2009 (Exhibit A10). Ms Russell’s clinical notes of the applicant’s initial consultation on 7 October 2008 are also in evidence (Exhibit A11).
23. In her report of 20 December 2008 Ms Russell set out the history of the events immediately preceding the applicant’s attempted suicide on Monday, 21 July 2008 as follows:

“ Critical Events and Other Contributing Factors
On Friday, July 18, 2008, Mark, as Branch Manager, attended a teleconference meeting including 15-17 managers to evaluate the performance of each branch in Area Perth. He described several precursors to that meeting that influenced his response to that meeting, viz:

• An organisational restructure resulted in Mark’s branch being relocated to another area. There was increased work pressure and stress as a result of this process.
• The moving out of two high performing staff members from under his management to other branches in the restructure was destabilising to his branch.
• He was then under a different area manager, Mr Glenn Hurst.
• A one-on-one meeting with Glenn had not been arranged before the restructure. Mark did not know him personally nor was he presented with an opportunity to speak with him personally.
• The results of the customer experience survey and lending achievements were poor in the first two weeks of operation in the new location due to unavoidable circumstances.
• The process of evaluation of his branch’s results was not adequate in Mark’s view.
• Mark had to report the less than satisfactory results to the meeting participants.

In the immediate time after the evaluation teleconference the following circumstances occurred:

• Later on the day of the meeting, the current week’s results arrived and indicated that week’s required targets were not met.
• Glenn Hurst made an unexpected visit to the branch but ‘did not engage in any personal discussion’ with Mark that would have been a supportive gesture.
• Mark could not bear the thought of facing the same circumstances again in the following week’s meeting.

Mark’s experience was one of intense humiliation and shaming in the meeting procedure. Consequently, he could not face the idea that he was expected to repeat a similar scenario the following week. After making order of his work tasks and desk early on the Monday morning that followed the Friday meeting, he made 3 unsuccessful attempts to suffocate himself in his car. ...”

24. In her oral evidence Ms Russell confirmed that she regarded the teleconference meeting on Friday, 18 July 2008 and the zero “performance assessment” of the applicant’s Branch in that week as significant factors in his suicide attempt on 21 July 2008.

ADDITIONAL MEDICAL EVIDENCE

Dr Lawrence Terace

25. Dr Terace, Consultant Psychiatrist, examined the applicant on 11 September 2008, and he reviewed him on 11 December 2008 and 18 August 2009, at the request of the respondent. He subsequently prepared reports dated 15 September 2008 (T37), 31 January 2009 (T110), and 21 August 2009 (T191) regarding the applicant’s psychiatric condition.
26. In his report of 15 September 2008 Dr Terace set out the following history:

“ Introduction –
Mr Reeve presented as a 46-year-old married father of a 14-year old from his first marriage, who presently lives in New Zealand. He is employed as Branch Manager for CBA at Mt Hawthorn.
The 21st July of 2008 represents the last day he worked. However, he began a return to work program under the care of Vocational Rehabilitation Provider, Workforce, last Wednesday to a clerical/administrative position at 150 St Georges Terrace working 4 hours per day, 3 days per week. This will rise to 4 hours per day next week, and then to 20 hours per week thereafter. Subsequent to this, he will then meet with his employer to review the next stage of his employment.
1. Events of the date of injury the 21st July, 2008 –
1.1 Mr Reeve attended work early about 6 am, cleared his e-mails, allocated his work, and then wrote a note to the staff stating –
‘I’ve committed suicide in the car park – don’t go out there – call 000’.
1.2 He then grabbed a plastic bag from the cleaner’s room, went to the car park, entered the back seat of his vehicle and pulled a plastic bag over his head and placed a blanket over himself. He was struggling to breathe when the bag became sucked into his mouth, and he became acutely anxious. He then re-entered the branch, took down the note, tried to commit suicide again, failed and took the note out again. In total, he made three attempts, all failed –
‘Physically I couldn’t go through with it’.
Reportedly, none of the staff saw the letter.
1.3 He telephoned his wife, drove home, but did not describe the suicide attempts to her. He walked the dog for 10 minutes, subsequent to which he visited the General Practitioner and the First Medical Certificate was issued.

2. Background history provided by Mr Reeve culminating in the lodgement of the Workers’ Compensation Claim –

2.1 Mr Reeve described a restructuring as of the 1st July, 2008 at which time there was no change in geography for his work, but there were changes in the lines of reporting and supervision to a new Area Manager.
2.2 He stated that normally he was required to participate in 3 conference calls per week via telephone conference with the Area Managers and Branch Managers, totalling 17 of them.
2.3 As of the 18th July, he participated in a conference call at 8.35 am with one Area Manager and 15 to 17 branch managers. The discussion pertained to the number of loan referrals from the branch to the lender, and he advised that he only had one referral for the week, as compared to his normal 728 (sic) and –
‘I was then cut off and he said this is a good example (for poor performance) of how not to let the week go by without correcting bad performance’.
On Friday the Concierge person was absent due to illness in the morning, so Mr Reeve relieved the Concierge. The Assistant Manager was also away. At about 11.30 am the Area Manager walked in the door unannounced and Mr Reeve informed him of the five referrals that he had acquired. He claims the manager ignored him and began critiquing the customer queue. The Area Manager then called the Lender and reportedly began lecturing him about getting new business. The Area Manager then left after half an hour.

2.4 A Customer Survey was available as of Friday afternoon and he acquired a good score, but he claimed that the score achieved would be considered by the bank as a poor result.
2.5 He knew that the conference call was due on the Monday being the date of injury, and it was subsequent to this that –

‘I felt so humiliated on the Friday I couldn’t face the Monday conference call’.
...”

Dr Terace’s diagnosis of the psychiatric condition contracted by the applicant on 21 July 2008 was “major depression, single episode”. He opined, however, that the applicant was not presently suffering from a recognisable psychiatric condition.

27. In his report of 31 January 2009, however, Dr Terace opined that the applicant was suffering from “major depression, in partial remission, mild symptoms”, and in his report of 21 August 2009 he opined that the applicant was suffering from “adjustment disorder with depressed mood” or “major depression, recurrent”, although he preferred the former diagnosis.

THE EVIDENCE OF THE LAY WITNESSES

Paul Carson

28. Mr Carson confirmed that he had signed a witness statement, dated 20 January 2010, for the purpose of this proceeding, and that its contents are true. Mr Carson’s statement is as follows:

“ ...

2. I am the Area Manager (North) with the Commonwealth Bank.

...

4. As Area Manager (North), I am responsible for overseeing the operations and performance of various suburban branches.
5. My responsibility includes line management and supervision of the branch managers.
6. Up until 1 July 2008 I oversaw the performance of the Mount Hawthorn branch and as such was the immediate supervisor and line manager of Mark Reeve who was the branch manager of the Mount Hawthorn branch.
7. Mark commenced work for the Commonwealth Bank in November 2006 as a mobile lender.
8. Prior to that he had worked as a branch manager and lender in ASB New Zealand which is owned by the Commonwealth Bank.
9. We were looking for a new branch manager and Mark said that he was interested.
10. Mark Jones spoke to Mark Reeve’s former boss in New Zealand. Mark Jones told me that his old boss said that Mark was a reasonably good branch manager.
11. Following an interview with myself and the Regional General Manager he was placed in the position.
12. Mark was placed into the branch manager position at the Mount Hawthorn branch in August 2007.
13. I gave Mark a lot of support in his new role. Attached and marked ‘A’ is a copy of the support visits that were made to Mark to assist him in his new role.
14. Mark’s training consisted primarily of on the job training where the branch support manager and myself provided support and assistance to him.
15. During Mark’s time as branch manager his personal performance and the performance of the branch were assessed as competent and acceptable.
16. Audit reports, individual performance appraisals, individual targets and formal and informal discussions gave no indication to me that there were any significant problems either with the performance of the branch or with Mark’s personal performance.
17. At first Mark was turning over a bit of staff in his branch so we gave him help with this.
18. He made a good effort to try and keep his staff on board.
19. I remember Mark organising a ‘Biggest Loser’ type weight loss challenge with his staff where they would have weekly weigh-ins.
20. This type of thing was good for staff morale.
21. I undertook a performance planning and review of Mark for the period 1 July 2007 to 30 June 2008.
22. This was an annual review.
23. I did not get a chance to meet with Mark and to provide him with the report as he went on workers’ compensation leave.
24. I rated Mark as ‘meets expectations’ on all areas except one, which was ‘one team referrals’.
25. I gave Mark a ‘needs improvement’ in that area.
26. In my opinion Mark was doing a good job for a new manager.
27. As of 1 July 2008 there was a restructure where the Mount Hawthorn branch was to come under the umbrella of the Perth Area.
28. We had a dinner at the end of the financial year in 2008 to say farewell to the branch managers who were no longer going to be under the Area North.
29. I gave the branch managers including Mark a thank you card and gift.
30. I remember we went to an Irish pub after the dinner with Mark.
31. We had a good night.
32. There was no indication that Mark was not happy in his job.
33. A few weeks later, Glenn Hurst advised me that Mark had tried to commit suicide.
34. I was shocked to learn that Mark had tried to self harm as I was unaware of any problems with his role or performance.” (Attachment omitted) (Exhibit R28).
    
29. Mr Carson also confirmed that he had signed a supplementary witness statement, dated 2 March 2010, and that its contents are true. Mr Carson’s supplementary statement is as follows:

“ ...

3. I have read the summary of evidence of Mark Reeve dated 1 February 2010.
4. I now make this supplementary statement in response to Mark Reeve’s summary of evidence.
5. In response to paragraph 8 of Mark’s summary of evidence I say that due to the nature of the branch manager position that Mark was employed in and Mark’s management background with ASB in New Zealand, all of his training to become branch manager was on the job training.
6. Mark was coached and trained in the following:
   • The Commonwealth Bank’s sales and service process, which is the same model used by ASB, the Cohen Brown model.
   • Coaching staff in the needs analysis process.
   • Branch operating process, compliance and administration.
   • Report analysis, including all sales and service reports.
7. I believe that this type of coaching works better than any formal training course because it includes a lot of one on one training and coaching with the opportunity for greater interaction. This type of training has worked effectively for other new managers.
8. The Commonwealth Bank does not have a specific branch manager training course.
9. Myself and my area office team are known by all the staff to be open and supportive, particularly of new staff.
10. I had a good relationship with Mark and at no time did he say he had any issues with the coaching and training he received to become branch manager.
11. He appeared happy with the support he was given.
12. There was nothing happening in the branch to indicate there were any issues.
13. Mark and his staff appeared happy and on track.
14. In relation to paragraph 11 of Mark’s summary of evidence I say that the Mount Hawthorn lender ... was moved to the busier branch of Innaloo.
15. Innaloo is a tier 1 branch meaning it is one of the three biggest in my area.
16. [The lender] ... indicated to me that she was bored at Mount Hawthorn and that she wanted to go to a busier branch.
17. She had recently moved from Kalgoorlie which was a busy branch.
18. I swapped [the lender] with [LD] as I need my best lenders in my biggest branches.
19. [LD] was an average lender, more suited to a quieter branch with lower targets such as the Mount Hawthorn branch.
20. I do not see why this move would have destabilised the branch, particularly as Mark had strong lending knowledge as he was previously in the position of mobile lender.
21. I believed it would have been more unstable had I left [the lender] in place at Mount Hawthorn as she was bored and would not have stayed there in any case.
22. Mark did not indicate to me that he had any problems with this move.
23. [PM], assistant manager, was moved out of the Mount Hawthorn branch for two reasons.
24. He was new to the role, but was identified as having future potential.
25. He was therefore moved to my largest tier 1 branch to work with one of my strongest managers to develop hm.
26. At the same time I moved [PL], assistant manager, from Warwick branch to Mount Hawthorn branch as I thought this would be a greater support to Mark as [PL] had had many years experience in the role and was strong in compliance, which is the area Mark would need most help in.
27. [PM] had only been in the Mt Hawthorn branch for approximately three months and was replaced by a more experienced assistant manager in [PL]. I do not know how this would have destabilised the Mount Hawthorn branch, I would have thought the reverse would be the case.
28. I saw no evidence of this on my branch visits, nor was it ever mentioned to me as a problem by Mark.
29. In response to paragraph 13 of Mark’s summary of evidence I say that I do not recall that [LD] was only given a couple of hours notice about the move from the Innaloo branch to the Mount Hawthorn branch.
30. This would be highly unusual.
31. I was not aware that [LD] was unhappy with the move from the Innaloo branch to the Mount Hawthorn branch.
32. In relation to paragraph 17 of Mark’s summary of evidence I say that the Mount Hawthorn branch was moved from North Area to Perth Area.
33. Normal practice would be for me to tell anyone moving from the area individually before they heard from another source.
34. In relation to paragraph 18 of Mark’s summary of evidence I say that I do not recall the telephone conversation when Mark was advised about the restructure.
35. Although I cannot specifically recall the details, I believe I would have personally told Mark, face to face, in advance.
36. In relation to paragraph 19 of Mark’s summary of evidence I say that moving into a different area would not have a material impact upon the staff.
37. I received no feedback from any staff member or Mark in this regard.
38. In relation to paragraph 42 of Mark’s summary of evidence I say that at the time of the restructure many branches were moved to different areas.
39. There is no reason why it should have caused stress or pressure.
40. Nothing about Mark’s demeanour indicated to me that he was under stress or pressure.
41. He never communicated any difficulties to me at any time and he was always given a major amount of support.
42. I do not know why the move would cause stress or pressure.
43. It seemed to go smoothly with all other branch managers affected across the region.
44. I had a North Area managers’ dinner on 11 July 2008 after we had a face to face meeting.
45. I invited Mark to this dinner that (sic) he could be farewelled by the team upon Mount Hawthorn’s move to Perth Area. I also invited [KO] who was a North Area mobile lender who was moving to premium banking as part of the restructure.
46. I gave Mark a gift of an engraved pen on behalf of the team and a card signed by all of the team wishing him well.
47. I also said a few words thanking him and wishing him the best for the future.
48. We also had a couple of drinks at the Irish pub after dinner and Mark seemed fine.
49. He was grateful for the gift and the farewell.
50. Mark never mentioned at any time that he was disgruntled or unhappy with the way the move was conducted.
51. I would imagine had he been unhappy that he would have refused the dinner invitation, or told me that he was disgruntled.” (Exhibit R29)
    
30. Mr Carson gave oral evidence but it is unnecessary to refer to it in detail in these reasons.

Glenn Hurst

31. Mr Hurst confirmed that he had signed a witness statement, dated 13 January 2010, for the purpose of this proceeding, and that its contents are true. Mr Hurst’s statement is as follows:

“ ...

3. I am employed as the Area Manager (Perth) with the Commonwealth Bank.
4. I have been employed in this position since 1992.
5. I have been employed with the Commonwealth Bank for 42 years.
6. As Area Manager (Perth), I am responsible for overseeing the operations and performance of approximately 15 Commonwealth Bank branches.
7. My responsibility includes line management and supervision of the branch managers.
8. As of 1 July 2008 the Mount Hawthorn branch came under my area.
9. Formerly it had been under Area North.
10. The Mount Hawthorn branch had approximately 10 staff managed by Mark Reeve.
11. I did not know Mark prior to 1 July 2008.
12. After the restructure that came into effect on 1 July 2008 I visited each of the branches.
13. I visited the Mount Hawthorn branch.
14. My visit was a welcome visit so I could introduce myself to the branch managers that I had never met before.
15. This meeting was an informal chat.
16. The next time that I met Mark Reeve was a team meeting that was held in a meeting room in Perth.
17. I met with all the managers in my area.
18. At the meeting I advised them of their KPIs and we made a plan for the next 12 months.
19. At the meeting we talked about the role of managers.
20. I advised the managers that I was here to assist them in reaching their KPIs.
21. At the meeting we talked about area targets.
22. I remember Mark being at this meeting.
23. He was quiet and not as loud spoken as some of the other branch managers at the meeting.
24. As part of my role as area manager I held teleconferences every week.
25. The teleconferences were held on Monday, Tuesday and Thursday.
26. The Monday teleconference was where each manager would advise me of their commitment and plan for the week in reaching their KPIs.
27. Each teleconference would take approximately 30 minutes and would involve all of the branch managers in my area. I would chair the meetings.
28. The Tuesday teleconference was to ask how everybody was going with the commitments and plans that they had made on the Monday.
29. The Thursday teleconference was an end of week debrief.
30. At this teleconference the managers would be asked how they went with their commitment and plan that they made on the Monday.
31. Each manager would report how they went that week and each manager would say if they lived up to the commitments that they had made.
32. My attitude is that managers shouldn’t make a commitment that they can’t achieve. I encourage the mangers (sic) to set realistic goals each week that they are capable of achieving. Their commitment should be realistic.
33. These teleconferences are standard practice amongst area managers at the Commonwealth Bank and happen every week.
34. We also use the teleconferences as an opportunity to highlight people’s successes.
35. In relation to the KPI of customer service, you don’t make a commitment.
36. What happens with customer service is that a customer experience survey is undertaken by Roy Morgan.
37. Roy Morgan will contact customers of the Commonwealth Bank and ask them questions about the customer service they experienced.
38. There are three areas that are assessed: one is tellers, two is customer services (sic) specialists and three is personal lenders.
39. Roy Morgan will ask questions about the specific day that the customer came into the bank and what they experienced on that day.
40. Each customer is asked the same questions, by telephone.
41. The aim is to get 100%.
42. Branch managers’ bonuses are linked to the customer service experience survey results.
43. The branch managers are advised of their customer survey (sic) results every Friday.
44. We talk about these results at the teleconferences.
45. My aim is to get better service from the managers and I try to find positives in all of the results including the customer survey experience results.
46. I do not remember the particular teleconference on 18 July 2008 because the teleconferences happened three times a week.
47. On Tuesday 22 July, at approximately 11.15 am, Mark called me while I was driving in the car.
48. Mark told me that the reason he was not at work was because he had tried to commit suicide the day before.
49. I asked Mark if he had been to see a doctor and if he had any support at home. Mark told me that he has (sic) been to see a doctor and a psychiatrist.
50. Mark told me that he was stressed at his branch’s customer experience survey score.
51. I advised Mark of the Bank emergency assistance programme.
52. Mark told me he was going to take the rest of the week off and I agreed that this was a good idea.
53. I advised Mark that his health was important and don’t worry about the branch, that we would take care of things there for now.
54. I advised Mark that I would call him later in the week.
55. I called Mark later in the week to check that he was okay.
56. Attached to this statement and marked ‘A’ is a copy of the diary notes that I made from 22 July 2008 to 6 August 2008.” (Attachment omitted) (Exhibit R31).
    
32. In his oral evidence Mr Hurst explained that the expression “KPIs” (in paras 18, 20 and 26 of his statement) refers to “Key Performance Indicators”. As regards the days on which he held teleconferences with branch managers (see paragraph 25 of his statement), Mr Hurst acknowledged that a teleconference may have been held in the morning of Friday, 18 July 2008. As regards the telephone call he received from the applicant on 22 July 2008 (referred to in paras 47–54 of his statement), Mr Hurst said that, when he received the telephone call, he immediately “pulled over” his car and started to write notes of the conversation. He said that the diary notes for 22 July 2008 (part of Attachment “A” to his statement) were made by him on that day.
33. Mr Hurst confirmed that he had also signed a supplementary witness statement, dated 1 March 2010, and that its contents are true. Mr Hurst’s supplementary statement is as follows:

“ ...

3. I have read the summary of evidence of Mark Reeve dated 1 February 2010.
4. I now make this supplementary statement in response to Mark Reeve’s summary of evidence.
5. In response to paragraph 26 of Mark’s summary of evidence I say that the Commonwealth Bank’s vision is ‘to be Australia’s finest financial services organisation through excelling in customer service’.
6. The vision is regularly communicated to all colleagues through regular bulletins, other written communications such as emails and through our in-house ‘CBA TV’ which is beamed into branches 3 mornings a week.
7. I raise ‘service’ in my service meetings with my team members at least once a week but more likely at each of the 3 meetings (teleconferences) we have.
8. All staff are fully aware of the focus the Bank has in this area. Branch managers are expected to drive the provision of quality service in all customer interactions in their branches.
9. At the Commonwealth Bank, we measure service quality in each branch weekly through a customer experience survey (CES).
10. The weekly results are a snapshot of service levels afforded to customers 2 weeks prior to the weekly survey issuing. It takes this amount of time to complete the surveys, collate the data and distribute.
11. Survey results issue each Friday.
12. Surveys are undertaken by an external company, Roy Morgan Research.
13. This company uses a practice, which is the same across Australia, of contacting a Bank customer who transacted in the Bank in a particular week.
14. Surveys are contacted for each of 3 job families:
    • (1) customer service representatives;
    • (2) customer service specialists;
    • (3) personal lenders (sales).
15. The company articulates the date, time and purpose of the customer’s visit to the branch and then asks a set of questions requesting the customer to make their responses relative to that particular interaction at the Bank.
16. While the survey covers several different questions, the results of the survey are determined by the response to just one question which is ‘how satisfied were you with the overall service you received during your visit that particular day’.
17. A score out of 10 is requested from the customer.
18. Scores of 9 and 10 out of 10 are classified as 100%.
19. Any other score other than 9 or 10 out of 10 rates a zero.
20. Customer experience survey is 40% of a branch manager’s key performance indicators (KPIs).
21. The weekly scores contribute to a progressive half-year to date score/result and branch managers are rated based on their branch’s overall 6-monthly score on 31 December and 30 June each year.
22. The rating scale is 80% score/results equals 100% and a 70% score/result still qualifies the branch manager for a bonus for this KPI.
23. Bonuses for branch managers are based on the level of performance. A 60% score/result generates the lowest end of the bonus range.
24. Customer experience survey/results are a significant part of a branch manager’s business. Consequently at my face to face meeting with all of my team members held on 3 July 2008, customer experience survey was an agenda item with 1 hour allocated to the topic.
25. In response to Mark’s summary of evidence at paragraph 27, I say I believe the customer service experience KPI and method of determining a score/result is fair.
26. The Bank has clearly outlined what is expected by (sic) all Bank employees in relation to service and there are regular service related activities introduced for all staff to carry out in order to provide the tools for them to develop their service delivery skills.
27. Branch managers are an integral part of these service training initiatives.
28. A term I regularly use around service delivery is ‘wow your customers’ and if customers are wowed I am sure the majority would consider the service was great and rate it at a 9 or 10.
29. The performance gauge for branch managers (80% equals 100%) provides some allowance for people who just don’t give 9s or 10s, no matter what.
30. In response to Mark’s summary of evidence at paragraph 29, I say I do agree there is a high expectation on all staff to provide a high level of quality service in all customer interactions.
31. The expectation is apply (sic) to all levels of staff at the Bank from CEO down to the newest recruit.
32. All managers/leaders are expected to set the expectation that all customers receive a high level of quality service and then manage to the expectation.
33. I disagree there is pressure to perform.
34. In response to Mark’s summary of evidence from paragraphs 31 to 33, I say part of the Bank’s sales culture is to hold a sales meeting on Monday morning to set goals and actions for the week.
35. The sales meeting generally concludes with all participants ‘committing’ to a certain outcome or outcomes.
36. These are recorded so they can be followed up later in the week.
37. The sales meeting is followed by a 48 hour follow-up meeting (some 48 hours after the sales meeting) to review progress towards goals set and commitments taken and to share what is working and what is not.
38. Then to round out the sales week we have an end of week debrief where commitments are called up and we review the week from a service score perspective and also a sales perspective.
39. We may also discuss some fundamental actions/activities that generated positive outcomes.
40. This is normal practice across retail banking services (responsible for our branch representation and performance).
41. My usual process is to record commitments on a Monday at the sales meeting, review and record progressive numbers at the 48 hour follow-up.
42. I then obtain ‘final’ numbers at the end of week debrief.
43. This is usually a quick exercise because I limit the time of the end of week debrief to 30 minutes and there is a lot to cover.
44. When taking results I will always compliment branch managers who have exceeded their commitment and will, on an ad hoc basis, ask those that didn’t meet their commitments what they might do differently next week.
45. At the same meeting we look for best practice to share to assist all branch managers.
46. I cannot recall specifically what I said to Mark at our end of week debrief for week ending Friday, 18 July 2008.
47. I am absolutely certain I would not have said anything to embarrass him or put him down in front of others.
48. Mark would not have been treated any differently than any other branch manager attending the teleconference.
49. Also, as Mark was still very new to my team, I would have been very careful how I addressed him along with the other 4 newcomers to the team.
50. In response to Mark’s summary of evidence at paragraphs 40 to 41, I say the role of the personal lender (sales) in each branch is integral to the success of the branch.
51. I had just taken 5 new branches into my area and I wanted to be sure the branch manager and the personal lenders (sales) were across the amended KPIs for lenders for the year ahead.
52. I called at Mt Hawthorn branch hoping to catch [LD], the lender, to discuss personal lender (sales) KPIs and measurement grids with him.
53. I had said I would do that at a meeting with the personal lender (sales) on 8 July 2008.
54. I can recall meeting with Mark in his office, saying hello and advising him why I had dropped in.
55. I asked Mark if he wanted to sit in on my discussion with [LD].
56. He did and I downloaded the detail to both [LD] and Mark in Mark’s office.
57. I do not recall any discussion about service or positive initiatives introduced by Mark.” (Exhibit R32)
    
34. It is unnecessary to refer to the remainder of Mr Hurst’s oral evidence in these reasons.

THE RELEVANT LEGISLATION

35. Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent:

“ is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

36. The SRC Act also relevantly provides:

“ 5A Definition of injury
(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.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”

The words “ailment” and “impairment” are defined in s 4(1) of the SRC Act as follows:

“ ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“ impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

37. Section 7(4) of the SRC Act provides:

“ For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”`

ANALYSIS

38. It is common ground that, on 21 July 2008, the applicant suffered a mental ailment that was “contributed to, to a significant degree, by” his employment by the respondent, and that, accordingly, on that date he suffered a “disease” as defined in s 5B(1) of the SRC Act.
39. The Tribunal is satisfied, on the basis of the evidence of Dr Proud and Dr Skerritt, that the appropriate diagnosis of the abovementioned mental ailment, being a “disease”, suffered by the applicant on 21 July 2008 is “major depressive disorder”.
40. The applicant’s mental ailment, namely, major depressive disorder, suffered by him on 21 July 2008, will be an “injury”, within the meaning of s 14(1) of the SRC Act, unless it was suffered by him “as a result of reasonable administrative action taken in a reasonable manner in respect of [his] employment”: see the definition of “injury” in s 5A(1) of the SRC Act.
41. The Tribunal is satisfied, and finds, that the employment events and circumstances set out in Jill Russell’s report of 20 December 2008 (see paragraph 23 above) collectively caused the applicant to suffer major depressive disorder on 21 July 2008 and that, accordingly, his major depressive disorder was suffered by him “as a result of” those events and circumstances, within the meaning of the exclusionary provision in s 5A(1) of the SRC Act. The question for the Tribunal’s determination is whether any of those events or circumstances constituted “reasonable administrative action taken in a reasonable manner in respect of [the applicant’s] employment” within the meaning of that exclusionary provision. If that question is answered in the affirmative, the applicant’s major depressive disorder will not be a compensable “injury” within the meaning of s 14(1) of the SRC Act: Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.
42. The phrase “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” in s 5A(1) of the SRC Act was inserted in that Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (“the SRC Amendment Act”), s 3 and Sch 1, item 11. Similar phrases appear in certain State and Territory workers’ compensation legislation and have been the subject of judicial interpretation. In Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 the Full Court of the Supreme Court of South Australia considered the phrase “administrative action” in s 30(2a)(b)(iii) (as then in force – see now s 30A(b)(iii)) of the Workers Rehabilitation and Compensation Act 1986 (SA) whose terms are similar to those of the exclusionary provision in s 5A(1) of the SRC Act. Doyle CJ (with whom Prior and Williams JJ agreed) said (at 246–247) that:
    • the phrase “administrative action” should be “given its ordinary meaning”;
    • the ordinary meaning of that phrase is not limited to “a particular episode or event” but will “include a course of conduct or a general instruction by the employer or a general approach by an employer to a particular job or a particular situation”;
    • the use of that phrase “suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her [or his] duties”.
43. The word “administrative” is defined in Macquarie Dictionary (5th ed) as:

“ relating to administration; executive”.

The word “administration” is there relevantly defined as”

“ the management or direction of any office or employment”.

In The New Shorter Oxford English Dictionary the word “administrative” is defined as:

“ Pertaining to management of affairs; executive”

and the word “administration” is relevantly defined as:

“ 2 The action of administering in any office ... 3 Management (of any business)”.

44. The word “reasonable” is relevantly defined in Macquarie Dictionary as:

“ 2 agreeable to reason or sound judgement ... 3 not exceeding the limit prescribed by reason; not excessive ...”

and in The New Shorter Oxford English Dictionary as:

“ 2 In accordance with reason; not irrational or absurd ... 5 Within the limits of reason; not greatly less or more than might be thought likely or appropriate; moderate ...”

45. Although the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 was not tendered in evidence, it was referred to in the respondent’s Statement of Facts, Issues and Contentions and in the applicant’s oral submissions. It is, therefore, not inappropriate for the Tribunal to have regard to that Explanatory Memorandum, pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), in the interpretation of the phrase “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” in the exclusionary provision in s 5A(1) of the SRC Act.
46. The abovementioned Explanatory Memorandum relevantly states (at pp iv–v):

“ The term, ‘disciplinary action’, has been interpreted in a number of court and tribunal decisions very narrowly to mean formal disciplinary action taken under, for example, the Public Service Act ... or action taken pursuant to an award or certified agreement. Consequently, investigations undertaken to determine whether a probationary appointment should be annulled; formal disciplinary proceedings should be instituted; or management counselling provided to an employee, have been found not to constitute ‘disciplinary action’. Claims for injuries purportedly arising in these circumstances have been allowed, which was not the intention of the Act.
...
Objectives
The Government’s primary objective with the workers’ compensation scheme established under the SRC Act, is to minimise the human and financial cost of work-related injury and disease while at the same time providing appropriate compensation and support for employees injured or made ill through employment. ... It was the original intention of the legislation to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker’s disease or injury, before eligibility for workers’ compensation can be established.
A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation.
...”

47. It is relevant to note in this context that the corresponding exclusionary provision in the SRC Act, as in force before the enactment of the SRC Amendment Act, appeared in the definition of “injury” in s 4(1) and stated:

“ ... but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

The Tribunal notes that that exclusionary provision was limited to “reasonable disciplinary action taken against” an employee, and other circumstances (namely, “failure by [an] employee to obtain a promotion, transfer or benefit in connection with his or her employment”) which directly affected or related to an employee’s employment.

48. Although subs (2) of s 5A of the SRC Act, which lists (in paras (a)–(f)) categories of action that the phrase “reasonable administrative action” in subs (1) is “taken to include”, is expressed not to limit subs (1), the categories of action listed therein are, in the Tribunal’s opinion, indicative of the kinds of action which the legislature intended should constitute “administrative action” within the meaning of subs (1).
49. Having regard to the literal words of the exclusionary provision in s 5A(1), and of s 5A(2), and the abovementioned extract from the relevant Explanatory Memorandum, the Tribunal is of the opinion that the phrase “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” in the exclusionary provision in s 5A(1) of the SRC Act is, in accordance with its ordinary meaning, limited to reasonable and “legitimate human resource management actions” (as described in the Explanatory Memorandum) taken in a reasonable manner in respect of an employee’s employment, and does not include “reasonable administrative action taken in a reasonable manner in respect of” any matter other than (and not including) an employee’s employment, including matters of general administration, management and the implementation of policy, even if such action indirectly or incidentally affects the employment of employees.
50. The respondent submitted that the Customer Experience Survey (“CES”) outcomes – in particular, the CES scores which were provided to the applicant on 18 July 2008 (which the Tribunal is satisfied made a very significant contribution to the applicant’s suffering major depressive disorder on 21 July 2008) – constituted “reasonable administrative action taken in a reasonable manner in respect of the [applicant’s] employment”, within the meaning of the exclusionary provision in s 5A(1) of the SRC Act. More specifically, the respondent submitted that:
    • the CES outcomes constituted “a reasonable appraisal of the [applicant’s] performance”, within the meaning of s 5A(2)(a) of the SRC Act; and/or
    • the CES constituted something “reasonable done in connection with the [applicant’s] failure to obtain a ... benefit, or to retain a benefit, in connection with his ... employment”, within the meaning of s 5A(2)(f) of the SRC Act – the relevant “benefit” being the applicant’s “salary bonus”.
51. As regards the latter submission, although it is common ground that 40% of the applicant’s annual salary bonus was dependent on his Branch achieving satisfactory CES outcomes, there is no evidence that, at any time prior to 21 July 2008 when he suffered major depressive disorder, he failed to obtain or retain any part of his salary bonus by reason of unsatisfactory CES outcomes. On the contrary, the evidence confirms that the applicant achieved his full salary bonus for the year 1 July 2007 to 30 June 2008.
52. The respondent further submitted that s 5A(2)(f) of the SRC Act extended to “the fear of failing to obtain a benefit” and that the applicant, by reason of the poor CES scores for his Branch which were provided to him on 18 July 2008, feared that he would fail to obtain a full salary bonus for the year commencing on 1 July 2008. The Tribunal does not accept that submission. The relevant phrase in s 5A(2)(f) of the SRC Act – namely, “failure to obtain a ... benefit, or to retain a benefit” – does not include a fear or an expectation or any other anticipatory state of mind as regards failing to obtain or retain a benefit.
53. Accordingly, s 5A(2)(f) of the SRC Act is inapplicable in the applicant’s case.
54. As regards s 5A(2)(a) of the SRC Act, the Tribunal does not accept the respondent’s submission that the CES outcomes constituted an “appraisal of the [applicant’s] performance” within the meaning of that paragraph. It is common ground that CES outcomes for the applicant’s Branch comprised one of seven Key Performance Indicators relevant to an appraisal of his employment performance (see Exhibit R24). It is also common ground that CES outcomes for all of the 15 Branches in the Perth Area (including the applicant’s Branch) were provided on a weekly basis to the Area Manager and the 15 Branch Managers (including the applicant) for the purpose of discussion at a weekly teleconference involving the Area Manager and the Branch Managers (see Exhibits R18 and R19 and Glenn Hurst’s witness statement (Exhibit R31) at paras 43–44). In the Tribunal’s opinion, the weekly CES outcomes and their discussion (amongst other agenda items) at a weekly teleconference involving the Area Manager and the various Branch Managers cannot reasonably be regarded as an “appraisal of the [applicant’s] performance” within the meaning of s 5A(2)(a) of the SRC Act. A “reasonable appraisal” of an “employee’s performance”, for the purposes of s 5A(2)(a), will, in the Tribunal’s opinion, include a reasonable individual performance appraisal (of the kind referred to by Paul Carson in paras 16, 21–25 of his statement of 20 January 2010 (Exhibit R28) set out in paragraph 28 above) by a person who is responsible for conducting such an appraisal – typically, the employee’s immediate supervisor (in this case, the applicant’s Area Manager) – and will typically involve a one-to-one meeting and discussion between the appraiser and the appraisee. By contrast, the CES outcomes themselves constituted an appraisal, by the customers surveyed, of various areas of the Branch’s customer service performance, namely, the customer service performance of tellers, customer service specialists, and personal lenders (see para 38 of Glenn Hurst’s statement of 13 January 2010 (Exhibit R31) set out in paragraph 31 above), and the subsequent teleconferences involved a discussion of various agenda items, including CES outcomes, amongst the Area Manager and the various Branch Managers (including the applicant).
55. In the Tribunal’s opinion neither the CES outcomes themselves, nor any of the abovementioned subsequent teleconferences at which the CES outcomes (inter alia) were discussed, constituted “a reasonable appraisal of the [applicant’s] performance” within the meaning of s 5A(2)(a) of the SRC Act.
56. It remains for the Tribunal more generally to consider, for the purposes of the exclusionary provision in s 5A(1) of the SRC Act, whether there was, otherwise, any “reasonable administrative action taken in a reasonable manner in respect of the [applicant’s] employment” as a result of which he suffered major depressive disorder on 21 July 2008.
57. As previously mentioned, the relevant employment events and circumstances which, the Tribunal has found, collectively caused the applicant to suffer major depressive disorder on 21 July 2008 were set out in Jill Russell’s report of 20 December 2008 (see paragraphs 23 and 40 above). In the Tribunal’s opinion, the events or circumstances which individually contributed to the applicant’s suffering major depressive disorder on 21 July 2008 were:
    • the implementation of the organisational restructure and staffing changes affecting the applicant’s Branch which occurred in June 2008;
    • the teleconference on 18 July 2008 at which the applicant reported unsatisfactory results for his Branch and felt embarrassed and humiliated;
    • the unannounced visit by Glenn Hurst to the applicant’s Branch later that day during which the applicant felt that Mr Hurst did not engage in any personal discussion with, or relate supportively to, him;
    • the receipt by the applicant, in the late afternoon of 18 July 2008, of the CES scores for the first two weeks of July (which included his Branch’s unsatisfactory scores);
    • the feeling by the applicant that he could not face the prospect of participating in the next teleconference on 21 July 2008 at which he would have to report on his Branch’s unsatisfactory CES scores.

In the Tribunal’s opinion, none of those events or circumstances involved “action taken ... in respect of the [applicant’s] employment” within the meaning of the exclusionary provision in s 5(A)(1) of the SRC Act. More specifically:

• the implementation of the organisational restructure and staffing changes affecting the applicant’s Branch involved management actions which affected the applicant in his capacity as Manager of that Branch but which were not “taken in respect of [his] employment” as Manager;
• the teleconference on 18 July 2008 constituted administrative or management action taken by Mr Hurst which affected the applicant (and each of the other participants) by reason of his (and their) participation, but that action was not taken by Mr Hurst “in respect of [the applicant’s] employment” (or the employment of each of the other participants);
• the visit by Mr Hurst to the applicant’s Branch on 18 July 2008 was, according to Mr Hurst’s own evidence, for the purpose of meeting the lender, [LD], and discussing “KPIs and measurement grids” with him – it was not action taken by Mr Hurst “in respect of the [applicant’s] employment;
• the receipt by the applicant of the CES scores later on 18 July 2008 and his feeling that he could not face the prospect of participating in the next teleconference on 21 July 2008, likewise, did not constitute action “taken ... in respect of the [applicant’s] employment”.

58. Furthermore, the introduction and implementation of the CES process itself did not, in the Tribunal’s opinion, constitute actions “taken ... in respect of” the applicant’s employment (or the employment of any of the respondent’s other employees) within the meaning of the exclusionary provision in s 5A(1) of the SRC Act. Rather, those actions constituted management actions taken by the respondent for the purpose of measuring the quality of customer service in its various branches (see para 9 of Glenn Hurst’s supplementary statement of 1 March 2010 (Exhibit R32) set out in paragraph 33 above).

CONCLUSION

59. The Tribunal concludes, therefore, that the applicant’s major depressive disorder, suffered on 21 July 2008, “was contributed to, to a significant degree, by” his employment by the respondent within the meaning of s 5B(1) of the SRC Act, but that it was not suffered by him “as a result of reasonable administrative action taken in a reasonable manner in respect of [his] employment” within the meaning of the exclusionary provision in s 5A(1) of the SRC Act.
60. Accordingly, the Tribunal finds that the applicant’s major depressive disorder is an “injury”, as defined in s 5A(1) of the SRC Act, and is therefore compensable pursuant to s 14(1) and Part VIII of that Act. Pursuant to s 7(4) of the SRC Act, the applicant is taken to have sustained that injury on 21 July 2008.

DECISION

61. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of an “injury”, namely, major depressive disorder, sustained by him on 21 July 2008.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member

Signed: ...............[sgd D Brodie]........................

Associate

Dates of Hearing 26–28 July 2010

Date of Decision 12 November 2010

Representative of the Applicant Mr C Prast

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Mr D Richards

Solicitor for the Respondent Dibbs Barker